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All Reporters → bankr-lexis → Volume 2006

Opinions in bankr-lexis Volume 2006

MEMORANDUM OF DECISION These Chapter 11 cases are before the court on the debtors’ motion for a determination of tax liability under § 505(a) of the Bankruptcy Code (Title 11, U.S.C.). The debtors seek a ruling that property to be distributed under their proposed Chapter 11 plan is not “wages” subject to federal taxes. The Internal Revenue Service has opposed the motion, not only on its m...
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This is an appeal from an Order of the United States Bankruptcy Court for the District of North Dakota issued on October 19, 2004, in which the court ordered debtor William Klesalek to return two parcels of real estate to the estate of Flora Klesalek for distribution to her heirs. Such Order did not require the estate to compensate debtor for funds he had paid Flora to purchase such real estate. ...
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MEMORANDUM OPINION RELATING TO DEBTOR’S “CERTIFICATION” OF COMPLETION OF “BRIEFING” REQUIRED PURSUANT TO 11 U.S.C. §§ 109(H) AND 521(b) I. Introduction The matter that is before the Court concerns the debtor’s efforts to comply with the credit counseling “briefing” provisions of the United States Bankruptcy Code as amended by the Bankruptcy Abuse Prevention and Consumer P...
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OPINION The law firm of Bennett & Fairshter, LLP (BF) appeals an Order and Judgment of the United States Bankruptcy Court for the District of Colorado, granting a motion by Stinky Love, Inc. (SLI) to implement the debtor’s confirmed plan of reorganization pursuant to 11 U.S.C. § 1142, 2 which we define below as the “Registry Order.” The Registry Order requires monies from a pos...
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MEMORANDUM OPINION I. INTRODUCTION Before the Court are two pleadings that require the Court to resolve a disputed *504 chapter 7 trustee election in these eleven jointly administered chapter 7 cases. The first is the Preliminary Objection of Francis G. Conrad Seeking an Order Declaring Francis G. Conrad as Permanent Chapter 7 Trustee (Doc. No. 363) (the “Resolution ...
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MEMORANDUM OPINION Before the Court for determination in these consolidated adversary proceedings *711 are motions for partial summary judgment on certain of the claims asserted in the complaints filed by plaintiffs State of Missouri (“State”), Harold D. Woodward (“Woodward”) and the United States Trustee (collectively “Plaintiffs”) for denial of discharge to debtors and ...
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OPINION Defendani/Appellant JCOR Mechanical, Inc. (“JCOR”) appeals an order of the bankruptcy court for the Western District of Oklahoma that avoided as preferential a payment made by the Debtor, The Electron Corp. (“Debtor”), to JCOR within ninety days before the Debtor filed a proceeding under Chapter 11 of the Bankruptcy Code. JCOR argues that the bankruptcy court erred in determining ...
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MEMORANDUM OF OPINION The Court has consolidated for decision three motions by the Chapter 11 Trustee (the “Trustee”) of MarketXT Holdings, Inc. (the “Debtor”) and its Official Creditors Committee (the “Creditors Committee”), and one motion by the Defendants in the above-captioned adversary proceeding. The Trustee’s first motion seeks to hold Rauf Ashraf (“Ashraf’), the principal of Empyrean Inve...
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MEMORANDUM OF OPINION ON MOTIONS TO INTERVENE Empyrean Investment Fund, L.P. (“EIF”) has moved to intervene in two adversary proceedings pending before this Court involving the Trustee and Creditors Committee of Market XT Holdings Corp. (collectively, the “Trustee”). One proceeding involves claims between the Trustee and E*Trade Financial Corp. (“E*Trade”), which are incorporated in count...
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MEMORANDUM OPINION REGARDING AVOIDANCE OF FRAUDULENT TRANSFER In April 2001, less than a year before filing for relief under Chapter 11, the debt- or executed, and recorded with the U.S. Patent and Trademark Office (“USPTO”), an assignment of a valuable biotech patent (Patent # 6174859, which is described in more detail below and referred to as the “Patent”). The Patent was assigned t...
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MEMORANDUM OPINION GRANTING DEBTORS’ MOTION REJECTING EXECUTORY CONTRACT WITH ROYALTY RECOVERY, INC. This matter comes before the Court on Debtor’s “Motion for Entry of an Order Pursuant to Section 365 of the Bankruptcy Code and Bankruptcy Rules 2002, 6006 and 9014 Rejecting Executory Contract with Royalty Recovery, Inc.”, ECF Docket No. 30 (the “Motion to Reject”). For the reasons se...
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ORDER RE: MOTION TO DISMISS This matter came before the undersigned on December 19, 2005 on U.S. *140 Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. § 707(b). Janet Reasoner appeared for the U.S. Trustee. Guy Booth appeared for Debtor James Stout. After the presentation of evidence and argument, the Court took the matter under advisement. This is a core proceeding pursuant to 28 U.S.C. § 1...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Adversary Proceeding relates to the Chapter 7 bankruptcy petition of Plaintiff Christopher Claxton (“Claxton” or “Debtor”). Claxton filed a complaint on September 28, 2000 (“Complaint”) seeking a declaration that his outstanding tax liabilities for the years 1985 through 1997 1 are dischargeable through his bankruptcy filing. Cla...
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MEMORANDUM OPINION Before the court is the issue of whether to confirm Debtor’s chapter 13 plan (the “Plan”). Confirmation was opposed by Irene Alma Payne Lemons (“Lemons”), Debtor’s mother, and Hugo Xavier DeLos Santos (“Santos” and, with Lemons, “Objectors”), who is counsel to and joint owner *294 of a judgment against Debtor with Lemons. On December 19, 2005, the court...
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Debtor George L. Young (‘Young”) appeals from the order of the bankruptcy court 1 granting several of Young’s creditors (collectively “Creditors”) motions for summary judgment. We affirm. I Young owned and operated Professional Business Services, Inc. (“PBS”) (collectively “Debtors”). Several of Debtors’ creditors filed an involuntary action against Debtors. Both Debtors fi...
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ORDER INTERPRETING 11 U.S.C. § 362(c)(3)(A) AND ORDER EXTENDING AUTOMATIC STAY PURSUANT TO 11 U.S.C. § 362(c)(3)(B) The matter before the court is the Motion for Declaratory Judgment and, in the Alternative, for the Continuance of the Automatic Stay filed by the chapter 13 debtor, Laura McFarland Paschal. The debtor requests that the court determine the meaning of 11 U.S.C. § 362(c)(3)(A) and, ...
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OPINION 1 Before the Court is the Complaint of Executive Sounding Board Associates, the liquidating trustee of the Yes! Entertainment Corporation Liquidating Trust (“the Trustee”), against Wham-O, Inc. (“Wham-0”) seeking to collect royalties allegedly owed. After trial on the merits and briefing, the Court enters judgment in favor of the Trustee, in part. 1. BACK...
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MEMORANDUM DECISION ON MOTION TO EXTEND THE AUTOMATIC STAY PURSUANT TO 11 U.S.C. § 362(C)(3)(B) The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 *182 (“BAPCPA”) added several provisions to the Bankruptcy Code wherein the automatic stay, which normally arises whenever a bankruptcy case is commenced, is either limited in duration or not triggered. Because the above-captione...
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MEMORANDUM DECISION AND ORDER GRANTING MOTION TO REMAND Ruth Kassover, as co-executor of the estate of Nathan Kassover, and Philip Kassover, in his individual capacity, (together “the Plaintiffs”), move for an order remanding this action (the “State Court Action”) to the New York State Supreme Court. Defendants Prism Venture Partners, LLC, (“Prism”), PVP-GCC Hol-dingCo II, LLC., The G...
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MEMORANDUM DECISION ON REQUEST FOR ENTRY OF ORDER PURSUANT TO 11 U.S.C. §§ 362(c)(4)(A)(ii) AND 362(j) CONFIRMING THAT NO AUTOMATIC STAY IS IN EFFECT The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”) added several provisions to the Bankruptcy Code wherein the automatic stay, which normally arises whenever a bankruptcy case is commenced, is either limited in duratio...
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MEMORANDUM ON REQUEST OF KATY MILLS MALL LIMITED PARTNERSHIP FOR ORDER REQUIRING PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM PURSUANT TO 11 U.S.C. §§ 503(a) AND 507(a)(1) This matter comes before the Court on the Request of Katy Mills Mall Limited Partnership For Order Requiring Payment of Administrative Expense Claim Pursuant to 11 U.S.C. §§ 503(a) and 507(a)(1). In the application, Katy Mills Lim...
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ORDER GRANTING IN PART AND DENYING IN PART AFFILIATED PROPERTIES, INC.’S MOTION FOR IMPOSITION OF ADMINISTRATIVE CLAIM AS EQUITABLE LIEN UPON THE REAL PROPERTY CLAIMED AS HOMESTEAD AND FOR IMPOSITION OF PAYMENT OBLIGATION UPON DEBTOR’S COUNSEL, JOINTLY AND SEVERALLY THIS CAUSE came on to be heard on November 8, 2005, upon the Motion for Imposition of Administrative Claim as Equitable ...
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ORDER OVERRULING OBJECTION TO CLAIMED EXEMPTIONS THIS CAUSE came on to be heard on July 26, 2005, upon the Trustee’s Objection to Amended Claimed Exemptions and Application for Turnover (“Objection to Claimed Exemptions”) (C.P. 17), filed by Michael R. Bakst, Chapter 7 Trustee (“Trustee”). By way of his Objection to Claimed Exemptions, the Trustee objects to the Debtor’s claimed exemp...
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MEMORANDUM OPINION John K. James, Movant, filed on October 31, 2005, a Motion To Determine Attorney Status. Felicia S. Turner, United States Trustee for Region 21, Respondent, filed a response on November 30, 2005. A hearing on Movant’s motion was held on December 19, 2005. The Court, having considered the record and the arguments of counsel, now publishes this memorandum opinion. Francis I...
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OPINION This matter came on for evidentiary hearing pursuant to the Debtor’s Motion to Extend Automatic Stay. This is a case of first impression in this District and involves a request under Title 11 U.S.C. § 362(c)(3) under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 which will hereinafter be referred to as the “BAPCPA”. The Debtor, Christie D. Phillips, appeared in p...
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OPINION REGARDING DISCHARGEABILITY OF DEBT I.JURISDICTION This court has jurisdiction over this bankruptcy case. 28 U.S.C. § 1334. This bankruptcy case and all related proceedings have been referred to this bankruptcy court for decision. 28 U.S.C. § 157(a) and L.R. 83.2(a) (W.D.Mieh.). This adversary proceeding is to determine the discharge-ability of a debt and is therefore a core proceeding...
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ORDER REGARDING MOTION FOR DEFAULT JUDGMENT On December 12, 2005, the plaintiff, by counsel, filed a Verified Motion for Default Judgment with respect to the claims asserted against the defendant in this case under 11 U.S.C. § 547(b). In that motion, the plaintiff requests an award of prejudgment interest. The Court finds that the record is insufficient at this time to determine the a...
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MEMORANDUM OPINION RE: MOTION TO EXTEND AUTOMATIC STAY The Court conducted a hearing on the debtor’s “Motion to Extend the Automatic Stay” and National City Home Loan Services’ opposition thereto on December 29, 2005. After listening to the testimony, the Court granted the debtor’s motion in open court and asked the debtor’s attorney to submit an order. The Court signed the order granting the m...
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MEMORANDUM OF DECISION I. Introduction Plaintiff Minoo Gharavi (the “Debtor”) filed an adversary proceeding seeking the discharge of her student loans pursuant to 11 U.S.C. § 523(a)(8), which allows the discharge of student loans if their repayment would impose an undue hardship on a debtor. Educational Credit Management Corporation (“ECMC”) and the United States Department of Education (“U...
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MEMORANDUM OPINION This opinion is with respect to Bridge-line Gas Marketing, LLC’s (“Bridgeline”) *216 motion (Doc. # 24) seeking summary judgment and dismissing the adversary proceeding commenced against it by BCP Liquidating, LLC (“BCP”). 1 For the reasons set forth below, the motion will be granted. BACKGROUND As of the Petition Date (defined below), ...
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ORDER DENYING MOTION TO EXTEND AUTOMATIC STAY This matter came before the Court for hearing on December 22, 2005 on the Motion by Debtor to Extend the Automatic Stay (the “Motion”), filed by the above-referenced debtor (the “Debtor”) on December 8, 2005. At the hearing, Anita Jo Kinlaw Troxler was present in her capacity as the Chapter 13 Trustee, and Wendell W. Sehollander appeared on behalf...
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MEMORANDUM OF DECISION AND ORDER RE: MOTION TO REVOKE ADMINISTRATIVE CLOSING AND TO ADMINISTER ASSET; AND MOTION FOR AUTHORITY TO COMPROMISE CLAIM AND FOR APPROVAL OF SETTLEMENT AGREEMENT Before the court are: that certain Motion To Revoke Administrative Closing of Bankruptcy Case (and To Administer Asset) (Doc. I.D. No. 30, the “Motion To Revoke”) 1 filed by the chapter 7 ...
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MEMORANDUM OPINION Before the Court is a Motion to Avoid Judicial Lien pursuant to § 522(f) and Release of Garnished Wages filed by Maurice Edward Heerlein, Jr. (“Debtor”). The Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a) and (b). This is a core proceeding which the Court may hear and determine pursuant to 28 U.S.C. § 157(b)(2)(K). The following constitutes my Findings of F...
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OPINION On consideration before the court is a motion filed by the plaintiff, Rain Bird Corporation, to strike a notice of appeal filed by the defendant, Gregory I. Salisbury; an objection to the said motion to strike having been filed by the defendant; and the court, having heard and considered same, hereby finds as follows, to-wit: I. The court has jurisdiction of the parties to and the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON BIFURCATED COMMON ISSUES This matter comes before the Court at the trial of certain issues common to the three captioned Adversary proceedings and on the Amended Adversary Complaints in those proceedings of Trustee Lawrence Fisher, as the Trustee for the Chapter 7 estate of CXM, Inc. against Enterprise Truck Line, Inc., Industrial Metal Enterpris...
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OPINION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This is an action by Peter McDonald (“Debtor”) related to his Chapter 13 bankruptcy case. He sues Bank Financial (“Bank”), the holder of a first mortgage against the Debtor’s home for determination that said mortgage holder has violated the Debtor’s discharge. Specifically, he seeks a ruling that the Debtor’s mortgage loan was reinstated by P...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Zukowski, Rogers, Flood & McArdle (“ZRF & M”) to dismiss the Chapter 9 bankruptcy petition filed by Slocum Lake Drainage District of Lake County (the “Debtor”) pursuant to 11 U.S.C. §§ 921(c) and 930. The issue is whether under 11 U.S.C. § 109(c)(2) the Debtor was specifically authorized by Illinois law, either in ...
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MEMORANDUM OPINION The chapter 7 trustee asserts that during the course of this bankruptcy proceeding, respondent Bonnie Lou Bracken was aware of debtor’s bankruptcy and nonetheless distributed to debtor funds that were property of debtor’s bankruptcy estate. He seeks a judgment against respondent in the amount of those distributions. The chapter 7 trustee also requests that resp...
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MEMORANDUM OPINION (Motions for Relief from Stay, Remand, and Abstention) The issue before the court is whether to allow more than 100 tort claimants in this Chapter 11 case to proceed in state court to liquidate their claims for distribution purposes. The claimants have filed motions for relief from stay in the main bankruptcy case and motions to remand and/or abstain in the tort claim adversa...
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MEMORANDUM-OPINION This matter came before the Court for a hearing on the Motion of Debtor WDS, Inc. (“Debtor”), to Alter or Amend the Orders of September 28, 2005 and October 4, 2005 and for the Court to Approve Attorney’s Application for Employment, Nunc Pro Tunc, the Application to Employ Timothy Dennison as Attorney for the Estate and the Objection of the U.S. Trustee to Motion to Alter...
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MEMORANDUM OPINION DENYING DEFENDANTS’ DARTLIN J. AF-RICH, AFRICH MAINTENANCE, INC., AFRICH MANAGEMENT & INVESTMENT, INC., PAUL PHIL-IPSON AND PITA CORPORATION’S DEMANDS FOR JURY TRIAL The issue is whether several of the defendants in these consolidated adversary proceedings are entitled to a jury trial. 1 After considering the pleadings, the evidence, and the law of the ca...
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OPINION The debtors appeal the bankruptcy court’s order denying Tonda L. Ford’s claim of exemption in proceeds from the settlement of a personal injury lawsuit (Order). The Order incorporated the bankruptcy court’s findings of fact and conclusions of law entered on the record. We reverse and remand. I. Background On December 18, 2003, Tonda L. Ford, one of the joint debtors, was...
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MEMORANDUM OF DECISION REGARDING DEBTOR’S MOTION TO REQUEST THE DETERMINATION OF A TAX LIABILITY, UNITED STATES’ MOTION TO DISMISS DEBTOR’S MOTION TO REQUEST DETERMINATION OF TAX LIABILITY AND OBJECTIONS THERETO I. Introduction The matters before the Court are Debt- or’s Motion to Request the Determination of a Tax Liability, United States’ Motion to Dismiss Debtor’s Motion t...
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Findings of Fact and Conclusions of Law This adversary proceeding arises out of a dispute between a landlord and a tenant concerning the parking area that the tenant is entitled to use under a lease. The landlord owns a parcel of land upon which is located a motel, a restaurant, and a miniature golf course. The landlord entered into a lease of the restaurant to the tenant which descri...
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OPINION Before the Court is the Motion filed by the Defendant, Joseph Andersen (ANDERSEN), for judgment on Counts III and IV of the amended complaint filed by Gary T. Rafool, Chapter 7 Trustee (TRUSTEE), on behalf of the Estate of Fleming Packaging Corporation (DEBTOR). This adversary proceeding brought by the TRUSTEE includes several counts against former officers and directors of the DEBT...
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MEMORANDUM This adversary proceeding comes before the Court on the defendant’s Motion for Summary Judgment and the plaintiffs Motion for Extension of Time to File Response to the Defendant’s Motion for Summary Judgment. Upon consideration of the motions, the supporting documentation, and the record in this case, the Court grants summary judgment and overrules the motion for extension. I. STAT...
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OPINION ON CHAPTER 11 CRAM DOWN INTEREST RATE The debtors’ Chapter 11 plan has been confirmed in this case. Preserved at confirmation was the issue to be resolved herein, i.e. the interest rate to be paid to the second mortgage when its claim is paid in full, in consummation of the plan. FACTS In August 2000, the Cantwells entered into a settlement agreement with the Universal Bonding I...
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MEMORANDUM OF DECISION REGARDING TRUSTEE’S OBJECTION TO DEBTOR’S EXEMPTION CLAIM Before the Court is an objection by the Trustee to the Debtor’s claim of exemption in residential real property in Stoneham, Massachusetts (“Property”). For the reasons stated below, the Court overrules the Trustee’s objection. *256 BACKGROUND The underlying facts in this matter are undisputed and are her...
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OPINION GRANTING DEFENDANT TROTT & TROTT P.C.’S MOTION TO DISMISS This matter came before the Court on defendant Trott & Trott, P.C.’s Motion to Dismiss Plaintiffs First Amended Complaint. The Complaint seeks damages for alleged violations of the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.). Defendant Trott & Trott seeks to have the Complaint dis...
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DECISION ON MOTIONS BY AD HOC COMMITTEE OF ARAHOVA NOTEHOLDERS TO APPOINT TRUSTEE OR NONSTATUTORY FIDUCIARY; TO DISQUALIFY COUNSEL; AND TO TERMINATE EXCLUSIVITY In this contested matter under the umbrella of the jointly administered chapter 11 cases of Adelphia Communications Corporation (“Adelphia Parent”) and its subsidiaries, the Ad Hoc Committee of Araho-va Noteholders (the “Arahova N...
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MEMORANDUM OPINION 1 This matter comes before the Court on the United States’ Motion for Summary Judgment (Doc. # 30) regarding the debtors’ objection to the proof of claim filed by the Internal Revenue Service (“IRS”). The debtors have responded to the motion (Doc. # 40). Summary Judgment Standards Rule 56 of the Federal Rules of Civil Procedure governs summa...
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MEMORANDUM-OPINION This matter came before the Court on the Objection to Exemption filed by Trustee, Gordon A. Rowe (“Trustee”). The Court considered the testimony of Denise Widman Keith and the arguments of counsel for Debtors Anthony B. Keith and Denise Widman Keith (“Debtors”) and the Trustee. For the following reasons, the Court SUSTAINS the Objection to the Exemption filed by Tru...
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MEMORANDUM OF DECISION REGARDING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND FOR FURTHER ORDERS AND DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT This matter came before the Court for hearing on the Plaintiffs Motion for Partial Summary Judgment and for Further Orders [docket # 27] and the Defendants’ Cross Motion for Summary Judgment [docket # 32]. Plaintiff seeks summary judgmen...
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ORDER This matter is before the Court on the Debtors’ “Objection to Proof of Claim Filed By Bankers Trust Company of California” (Doc. 20), on the response and memorandum filed by Bankers Trust (Docs. 27 & 35) and on the Chapter 13 Trustee’s brief and memorandum in support of the Debtors’ objection (Doc. 32). An evidentiary hearing was held on October 26, 2005. This Court has jur...
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This is an appeal from orders of the bankruptcy court 1 entered on June 27, 2005, and June 29, 2005, in each of these cases sustaining the objection of David C. Stover, Chapter 7 Trustee, to the debtors’ claim of exemption in the portions of their federal tax refunds attributable to the federal child tax credit. For the reasons stated below, we affirm. I.Standard of Review ...
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OPINION The issue before the Court is whether the funds in a joint bank account are property of the bankruptcy estate. Shannen and Angie Cloe have been living together for four years. On May 18, 2002, they opened a multiple party checking account with survivorship at the Shelby County State Bank. They were married on May 7, 2005. On May 17, 2005, the Cloes established a new checking account...
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ORDER WITHDRAWING THIS COURT’S OPINION AND ORDER DATED DECEMBER 7, 2005, AND APPROVING THE TRUSTEE’S MOTION TO APPROVE THE COMPROMISE AND SETTLEMENT Shortly after issuance of this Court’s Opinion and Order dated December. 7, 2005, the parties conditionally agreed to a settlement of this adversary proceeding. Under the settlement, Defendant Fiesta Investments, LLC would pay to the Trustee $85,00...
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MEMORANDUM OPINION The adversary proceeding before the Court is the complaint filed by Lee Ronald Dahmer and Judith Ann Dahmer (“Plaintiffs”) against the Internal Revenue Service (later substituted by the properly named defendant, the United States of America) (“IRS”) and the Missouri Department of Revenue (“MDOR”) pursuant to 11 U.S.C. § 523(a)(1) seeking a declaratory judgment that any tax ...
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MEMORANDUM OF DECISION Before the court is the Debtor’s Motion to Extend Automatic Stay pursuant to 11 U.S.C. § 362(c)(3)(B). The court held a hearing on January 11, 2006, at which Debtor presented evidence and at which conclusion the court issued its oral ruling granting the Debtor’s Motion. Based upon the factual findings of the court and for the reasons set forth on the record at t...
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MEMORANDUM DECISION DENYING MOTION FOR INJUNCTIVE RELIEF The debtors in this foreign proceeding (collectively, “SAirGroup”) formerly operated SwissAir, an international commercial airline. Swiss International Air Lines Ltd. (“SIAL”) purchased the flight operations of SAirGroup, and recently commenced a proceeding before the United States Patent & Trademark Office (“USPTO”) to c...
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ORDER GRANTING DEBTOR’S MOTION FOR SUMMARY JUDGMENT; DENYING COLETTA’S CROSS MOTION FOR SUMMARY JUDGMENT AND DISALLOWING CLAIM #20 The Court conducted a hearing on December 21, 2005, on cross motions for summary judgment on Debtor Bayshore Yacht & Tennis Club Condominium Association’s (“Bayshore” or “Debtor”) objection to Proof of Claim #20 filed by Creditor A1 Coletta (“Coletta”). Sp...
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OPINION DENYING DEBTORS’ HOMESTEAD EXEMPTIONS These two cases involve a dispute about the homestead exemption contained in Michigan’s recently-enacted bankruptcy-exemption statute, Mich. Comp. Laws Ann. § 600.5451(l)(n). The debtors in these bankruptcy cases, David A. Vinson and Robert A. Silver, have each claimed a homestead exemption of $30,000.00 in the same real property, which they co-own....
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ORDER REGARDING MOTION FOR PRE-CONFIRMATION ADEQUATE PROTECTION PAYMENTS The matter before the court in this chapter 13 case is the Motion for Pre-Confirmation Adequate Protection Payments filed by Coastal Federal Credit Union. Coastal seeks pre-confirmation adequate protection of its security interests in two vehicles owned by one of the joint chapter 13 debtors, Catherine E. Beaver. According...
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MEMORANDUM OPINION This cause is before the Court on the parties’ cross motions for summary judgment on the amount, if any, that Giant Eagle, Inc. (“Giant Eagle”) and Valu Eagle Associates (“Valu Eagle” collectively “Lessors”) should be allowed as (i) administrative expenses on Lessors’ Amended Applications and Requests for Administrative Expenses (Claim Nos. 88880026 and 88880009), and (...
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MEMORANDUM OPINION This matter is before the court for ruling on the debtor’s motion to dismiss the adversary complaint against him pursuant to Rule 4(m) of the Federal Rules of Civil Procedure based on the plaintiffs failure to achieve service of process. For the reasons that follow, the motion will be denied, at least for now, and the time for service will be extended to March 1, 2006. 1....
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MEMORANDUM OPINION In 2002, debtor Ernie Rizzo held a judgment against Denny Passialis and was attempting to collect it. Believing that Earl Merritt, Passialis’s uncle, was using his bank account to hide money for Passialis, Rizzo tried to serve Merritt with a non-wage garnishment at Merritt’s workplace — which happened to be a state correctional facility. In the process, Rizzo spoke ...
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DECISION & ORDER Contending that repayment of her student loan would impose an undue hardship, the debtor commenced the present adversary proceeding for a declaration that that loan is dischargeable. The central issue of this dispute involves the extent to which a determination of hardship should depend not only upon the income of the debtor, but upon the resources of her non-debtor s...
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OPINION 1 I.Introduction On December 5, 2001, Hayes Lemmerz International, Inc. and certain affiliated entities (hereinafter referred to as “Debtors”) filed petitions under Chapter 11 of the Bankruptcy Code. Pursuant to the Modified First Amended and Joint Plan of Reorganization of Hayes Lemmerz International, Inc. and its Affiliated Debtors and Debtors-In-Possession, Dated April 9, 2003, A...
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MEMORANDUM OPINION AND NOW, this 30th day of January, 2006, upon consideration of (a) the adversary complaint filed by Gary L. Smith, the Chapter 7 Trustee in the above-captioned bankruptcy case (hereafter “the Trustee”), wherein the Trustee seeks to avoid as fraudulent several pre-petition transfers of property effected by Elizabeth J. Cowden, the instant debtor (hereafter “the Debt-...
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ORDER ON QANTUM COMMUNICATION’S MOTION FOR RELIEF FROM AUTOMATIC STAY AND MOTION TO DISMISS This matter came on for hearing on Qantum Communication Corporation’s motion for relief from automatic stay and motion to dismiss the Debtor’s case. Appearances were as noted in the record. The Court has jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Order of Reference o...
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ORDER ON MOTION TO DISMISS OR CONVERT This case came on for hearing on the motion of Army Aviation Heritage Foundation and Museum, Inc. (AAHF) to dismiss this case or to convert it to a case under chapter 7. An evidentiary hearing was conducted at which AAHF urged the court to convert the case instead of dismissing it. Conversely, the debtor asked that, if the Court was inclined to grant ...
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American Education Services/Pennsylvania Higher Education Assistance Agency (“AES/PHEAA”) 1 appeals from the bank *426 ruptcy court’s judgment deeming the debt- or’s student loan obligations to AES/ PHEAA dischargeable pursuant to 11 U.S.C. § 523(a)(8). We conclude that, given the debtor’s income, his expenses, and the conceded economic relationship of the debtor and his...
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OPINION Gary Ozenne filed a chapter 7 2 petition to forestall the scheduled sale of the contents of a mini-storage unit for delinquent rent, and advised the storage operator. The operator nevertheless sold his personal property at an auction the next day. Ozenne moved for sanctions for violation of the stay. The bankruptcy court denied that motion, concluding that because state...
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On March 8, 2000, approximately three years before filing his Chapter 7 bankruptcy petition, Yury Shkolnikov was driving a rental van that crashed. Eight of his thirteen passengers died. The five surviving passengers were seriously injured. Each of the appellants is either an injured surviving passenger, an heir at law or next of kin of a deceased passenger, or the estate of a deceased passenger....
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OPINION After David Seror, the trustee in the chapter 71 bankruptcy of Oakmore Ranch Management, obtained a judgment against appellant Michael J. Welther, III, on behalf of the bankruptcy estate, he executed on funds owed to appellant by a third party. Because the promissory note evidencing the obligation was in his children’s names, appellant contended he had no interest in the note, and thus it...
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MEMORANDUM ORDER (A) COMPELLING ADEQUATE PROTECTION, AND (B) GRANTING CONDITIONAL RELIEF FROM STAY 1 AND NOW, this 1st day of February, 2006, the Court having heard the Movants’ Motion for Relief From Stay and the Objection of the Respondent, and having considered the record made before the Court, the Court hereby FINDS AS FOLLOWS: A. Constance K. Elliott, Patricia J. Kiesewetter, Linton A. E...
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MEMORANDUM OPINION This adversary proceeding came before the court for trial on December 6, 2005. John H. Boddie appeared on behalf of the plaintiff and William O. Moseley, Jr. appeared on behalf of the defendant. MATTER BEFORE THE COURT This is a dischargeability action in which the plaintiff contends that certain obligations of the defendant under a separation agreement be...
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MEMORANDUM OPINION GRANTING MOTION TO EXTEND AUTOMATIC STAY This matter came before the Court for hearing on January 10, 2006 on the Motion by the Debtors to Extend the Automatic Stay (the “Motion”), filed by the above-referenced debtors (the “Debtors”) on December 16, 2005. At the hearing, Jennifer Harris was present on behalf of the Chapter 13 Trustee, Tommy S. Blalock appeared on behalf of...
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MEMORANDUM-OPINION THIS ADVERSARY PROCEEDING is before the Court on Plaintiffs Complaint to Determine the Nondischargeability of Debt. Plaintiff James Dale Simpson (Plaintiff) is before the Court seeking a determination that the debt for a 2002 Hyundai Santa Fe (Hyundai) assigned to Defendant Jennifer Simpson (Defendant) during their divorce is nondischargeable under 11 U.S.C. § 523(a)(15). Bas...
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DECISION AND ORDER This cause comes before the Court after a Hearing on the Objection by the Debtor-in-Possession to the claim of Plante & Moran, LLP. At the conclusion of the Hearing, the Court took the matter under advisement so as to afford time to give the matter further consideration and throughly review the evidence presented in this case. The Court has now had this opportunity,...
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*453 MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Under consideration by the Court is a motion filed on June 17, 2005, by Richard Anthony McBride (the “Debtor”) seeking disallowance of a deficiency claim filed on behalf of AmeriCredit Financial Services, Inc. (“AmeriCredit”) on April 5, 2004, in the amount of $9,187.02. Opposition to the motion was filed on...
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MEMORANDUM-OPINION This matter came before the Court on the Motion of Debtors Ewert J. Wilson and Linda Wilson (“Debtors”) for an Order Granting Homestead Exemption and the Objection thereto of Creditor Anthony Wilson (‘Wilson”). An evidentiary hearing was held on the matter on November 16, 2005, and post-trial briefs were submitted by the Debtors and Wilson. For the following reasons, the Court...
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OPINION SUSTAINING TRUSTEE’S OBJECTION TO DEBTORS’ HOMESTEAD EXEMPTION The debtors in this case, Steven and Linda Siegel Kane, filed a chapter 7 bankruptcy on July 29, 2005. In their schedules, they listed a home in Las Vegas worth $318,000, and noted that it was subject to a $158,000 mortgage, leaving them some $160,000 in equity. Their current schedules claim a homestead exemption in th...
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OPINION This matter having come before the Court on a Complaint filed by the Trustee seeking to avoid the transfer of certain real estate by the Debtor, Charles J. Smith, to Defendant, Robert J. Sanders, as an unauthorized post-petition transfer pursuant to 11 U.S.C. § 549, or, in the alternative, as an avoidable preference pursuant to 11 U.S.C. § 547(b); the Court, having reviewed th...
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MEMORANDUM OPINION AND ORDER The debtors in these two bankruptcy cases have submitted to the Court the question of whether they are required under section 521(a)(l)(B)(v) of the Bankruptcy Code, as individual debtors whose debts are primarily business debts, to file a statement of current monthly income. Hearing was held on December 20, 2005. In each case, a notice of deficiency was sent to...
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OPINION This adversary proceeding is before the Court, after trial, on the complaint by Charles E. Covey, as Trustee of the Chapter 7 estate (“TRUSTEE”), to determine the validity of a security interest held by Morton Community Bank (“BANK”) in several items of sound equipment owned by Michael S. Sabol, one of the Debtors (“DEBTOR”). The matter was taken under advisement by the Court ...
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OPINION REGARDING PLAINTIFFS’ AND DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT I. Introduction Before this Court are the parties’ June 20, 2005 Motions for Summary Judgment. *59 Both the Plaintiffs, WorldCom, Inc. and MCI WorldCom Network Services, Inc. (collectively, ‘WorldCom” or “Debtor”), and the Defendant General Electric Global Asset Management Services (collectively, ...
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Opinion Introduction Before the Court is a Certification of the Debtor’s Counsel for Waiver of Credit *695 Counseling Requirement Pursuant to 11 U.S.C. Sec. 109(h)(3). For the reasons set forth below, the request for a waiver will be denied and the Debtor’s petition will be dismissed. Factual Background The Debtor filed this Chapter 13 petition on Janua...
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MEMORANDUM OPINION I. INTRODUCTION Edmond J. Ford, chapter 7 trustee (the “Trustee”), filed a three count complaint against the Debtor’s former spouse, Donna Skorich (“Skorich”), seeking (1) to avoid an alleged preferential transfer under 11 U.S.C. § 547; (2) to avoid transfers of property as a hypothetical lien creditor under 11 U.S.C. § 544(a); and (3) a declaratory judgment that, pursuan...
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OPINION (1) GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND (2) DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I. Introduction This matter is before the Court upon a complaint filed by Terry S. Hearn, the Debtor in this Chapter 13 case, to avoid a lien. The complaint seeks to avoid a mortgage lien held by Countrywide Home Loans as nominee for Bank of New York under 11 ...
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MEMORANDUM DECISION The Debtor in this chapter 13 case objected to three proofs of claim: Claim No. 3 filed by Sherman Acquisition, L.P. for $1,979.59; Claim No. 5 of Cavalry Portfolio Services, LLC in the amount of $7,496.68; and Claim No. 7 filed by Jefferson Capital Systems, LLC in the amount of $7,013.63. The Claimants each purchased credit card debt owed by the Debtor, and filed claims wit...
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MEMORANDUM OPINION DENYING MOTION TO SET ASIDE ENTRY OF DEFAULT AND DEFAULT JUDGMENT THIS MATTER came on before the Court on December 8, 2005 upon the motion by Marilyn and Walter Graham to set aside the entry of default. Appearing before the Court was Gerald S. Schafer, attorney for the Defendants, and J. Marshall Shelton, attorney for Charles M. Ivey, III, who is the duly-appointed chapter ...
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OPINION Before the Court is a motion to dismiss an adversary proceeding brought on behalf of the Debtor, G-I Holdings, Inc. (hereinafter “G-I Holdings”), by the Official Committee of Asbestos Claimants of G-I Holdings, Inc. (hereinafter the “Committee”) against Building Materials Corporation of America (hereinafter “BMCA”) and a multitude of financial institutions. More particularly, ...
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MEMORANDUM OF DECISION Donald R. Lassman is the Chapter 7 trustee of Charles River Press Lithography, Inc. (“Trustee”) (“Debtor”). As Trustee, Lassman filed a complaint against Leslie A. McQuillan (“McQuillan”), a former employee of the Debtor. In that complaint, Lassman seeks (a) declaratory judgment that a certain fund of money, comprising the net cash surrender proceeds of a certai...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Complaint filed by the Debtor, Lunise Paul (the “Debtor”), against the Defendant, Educational Credit Management Corporation (“ECMC” or the “Defendant”), through which she seeks a determination that her student loan debt is dischargeable under 11 U.S.C. § 523(a)(8) on the basis that repayment would impose an undue hardship ...
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MEMORANDUM-OPINION This matter came before the Court for an evidentiary hearing on January 17, 2006 on the Objection of the Debtor Robert L. Schmitt Company (“Debtor”) to the claim of Creditor Weber & Rose, P.S.C. (“Weber & Rose”). The Court considered the written submissions of the parties, the testimony of the witnesses at the hearing and the arguments of counsel. For the following reasons, t...
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ORDER SUSTAINING IN PART, AND OVERRULING IN PART, MOTION TO ENFORCE AUTOMATIC STAY AND DENYING DEBTOR’S REQUEST FOR RECOVERY OF DAMAGES ARISING FROM GARVEY’S STAY VIOLATION Debtor Kuecker Equipment Company filed a Motion to Enforce the Automatic Stay seeking an Order, inter alia, declaring that a certain lawsuit filed in state court by Tom Garvey against the Debtor’s principals and an affiliate...
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MEMORANDUM OPINION Debtor filed this adversary proceeding seeking to discharge student loan obligations. This Court has jurisdiction pursuant to 28 U.S.C. 1334(b), and may hear and determine the issues in this case pursuant to 28 U.S.C. 157(a), 157(b)(1), and 157(b)(2)(I). This is a core proceeding. I find that the Debtor has not met his burden of proving that requiring repayment of his student ...
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Johnny Harris (“Debtor”) appeals the bankruptcy court’s1 order granting the motion of the Boyd G. Montgomery Trust (the “Trust”) to terminate the automatic stay. We affirm for the reasons set forth below. *923I. Debtor leased non-residential real property from the Trust. The Trust terminated the lease effective May 81, 2005. Debt- or, however, failed to vacate the premises. Debtor filed his petiti...
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ORDER DISMISSING CASE This proceeding comes before the Court on a request by Willie John Dansby (“Debtor”) filed December 31, 2005, for a temporary wavier of the requirement of prepetition credit counseling under 11 U.S.C. § 109(h). The United States Trustee (“UST”) filed a timely objection to Debtor’s request. The Court has jurisdiction of this ease and this proceeding pursuant to 28 U.S.C...
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OPINION Involuntary debtor, Marketing and Creative Solutions, Inc. (“MACS”), appeals the bankruptcy court order granting chapter 7 relief to the petitioning creditors, Scripps Howard Broadcasting Co., d/b/a WEWS NewsChannel5 (‘WEWS”); Plain Dealer Publishing Co., d/b/a The Plain Dealer (“PDF’); and WKYC-TV, Inc., d/b/a, WKYC-TV3 (“WKYC”) (collectively, “Petitioning Creditors”). I.ISS...
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MEMORANDUM OPINION Robin Timothy Albee (“Debtor”) filed a complaint seeking a determination that his student loan debt should be excepted from discharge pursuant to 11 U.S.C. § 523(a)(8) on the ground that repayment of such debt would impose upon him an undue hardship, which allegations defendant U.S. Department of Education (“Defendant”) denied. This is a core proceeding under 28 U.S...
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ORDER (1) CONFIRMING AMENDED CHAPTER 11 PLAN OF REORGANIZATION FILED BY KATHY RIDLEY; (2) DENYING CONFIRMATION OF SECOND AMENDED CHAPTER 11 PLAN OF THE DEBTOR; (3) DENYING RID-LEY’S MOTION TO FIX THE AMOUNT OF ALL CLAIMS AND ADMINISTRATIVE EXPENSES FOR CONFIRMATION; (4) DENYING DEBTOR’S MOTION FOR ORDER VACATING ORDER APPROVING DISCLOSURE STATEMENT OF KATHY RIDLEY; AND (5) GRANTING DEBTOR’S MOT...
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MEMORANDUM OPINION Joy R. Webster, Trustee, filed on December 23, 2004, a Complaint To Avoid Fraudulent Transfer And For Return Of Property Or Its Value. Betty L. Cape, *143Defendant, filed a response on January 5, 2005. J. Coleman Tidwell, Trustee, (“Mr. Tidwell”), filed on January 7, 2005, a response to Plaintiffs complaint and asserted a cross-claim against Defendant.1 Defendant filed on May ...
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MEMORANDUM Hearing was held in Lincoln, Nebraska, on January 18, 2006, on the debtor’s motion to avoid lien (Fil. # 5) and resistance by the Chapter 7 trustee (Fil. # 14), and on the trustee’s objection to exemptions (Fil. # 13) and resistance by the debtor (Fil. # 16). Paul Rea appeared for the debtor, and Joseph Badami appeared as the trustee. This memorandum contains findings of fact and c...
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MEMORANDUM OPINION The Court has before it “Defendant’s Motion for Summary Judgment,” along with a memorandum of law, filed by Earl L. Kalil, Jr. (the “Defendant”). Christine R. Mullen (the “Plaintiff’) filed “Plaintiffs Opposition to Defendant’s Motion for Summary Judgment,” along with a memorandum of law, to which the Defendant responded with “Defendant Earl Kalil’s Reply to Plainti...
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OPINION James F. O’Brien, Trustee, Robert S. Corbly, Glen A. Bums and Carol Burns (the “Appellants”) appeal the bankruptcy court’s order denying their motion to compel the Debtor to make payments under a land installment contract and to assume or reject the contract within a specified time period. For the reasons that follow, we find that the land installment contract is executory under c...
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The debtor appeals the bankruptcy court’s 1 order determining that he was not *385 eligible to be a debtor in a bankruptcy case and its order dismissing his case. Because we feel that the bankruptcy court correctly applied the statute and did not abuse its discretion, we affirm. BACKGROUND The debtor filed his chapter 13 ease on November 10, 2005. The debtor’s ...
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*323 OPINION This matter is before the Court on the Motion for Summary Judgment filed by Jeffrey D. Richardson, Chapter 7 Trustee (“Trustee”) and the Objection to the Trustee’s Motion for Summary Judgment filed by Donald Elton Lichtenberger (“Debt- or”). Debtor filed his voluntary Chapter 7 petition in bankruptcy on September 14, 2005. Debtor’s bankruptcy schedules stated th...
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MEMORANDUM OF DECISION ON MOTION OF PAMELA PENDIAS FOR STAY PENDING APPEAL Pamela Pendias has moved for a stay pending appeal of this Court’s order allowing the Application of the Chapter 7 Trustee, Joseph Braunstein, to Renew the Employment of Hammond Residential as Real Estate Broker. In particular, she seeks to stay that portion of the order under which the Court required, as a term of emp...
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ORDER DENYING DEBTOR’S MOTION FOR CONTINUATION OF STAY PURSUANT TO 11 U.S.C. § 362(c)(3)(B) This Chapter 13 case was commenced after the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8 (“the Act”). It came on before the court on December 20, 2005, for hearing on the Debtor’s motion under 11 U.S.C. § 362(c)(3)(B) — one of the provisions tha...
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JUDGMENT DETERMINING DISCHARGEABILITY OF INDEBTEDNESS This adversary proceeding was commenced by a complaint filed by the plaintiff Bank Calumet (“Calumet”) against Leroy Deon Whiters (“Whiters”) on January 3, 2005. Whiters is the debtor in a Chapter 7 case filed under case number 04-65856 in the United States Bankruptcy Court for the Northern District of Indiana, Hammond Division. Wh...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Proceeding is before the Court upon the Complaint filed by Plaintiff, William C. Southard, seeking a discharge of his educational loans pursuant to 11 U.S.C. § 523(a)(8). A trial was held on November 3, 2005. Based upon the evidence presented, the Court makes the following Findings of Fact and Conclusions of Law. *418 Findings of Fact 1. Pl...
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PRELIMINARY DECISION ON MOTION OF N.O.B. ASSOCIATES FOR AN ORDER THAT THE AUTOMATIC STAY DOES NOT APPLY AND OTHER RELIEF I. Introduction The matter before the Court is whether N.O.B. Associates, LLC (“NOB”) is entitled to an order confirming that the automatic stay does not apply because of the alleged pre-petition termination of the lease (the “Lease”). 1 Southcoast Express, Inc. (“Debtor”...
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MEMORANDUM This adversary proceeding comes before the Court on the defendant’s Motion to Dismiss or in the Alternative to Compel Discovery and for Sanctions. The trustee did not file a response to the motion. Upon consideration of the motion, and the record in this case, the Court holds that this adversary proceeding should be dismissed. I. STATEMENT OF JURISDICTION This Court has jurisdiction ove...
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DETERMINATION OF OBJECTION TO RULE 2004 EXAMINATION ON SELF-INCRIMATION GROUNDS Before the Court is a Proposed Order (the “Proposed Order”) filed by Robert L. Geltzer, the Chapter 7 Trustee (“Trustee”) of The Cassandra Group (“Cassandra” or the “Debtor”), directing and compelling Dana Giacchetto (“Giacchetto”) to produce documents and to appear at the Bankruptcy Court in the Southern District of...
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OPINION The question is whether the issue pre-clusive effect of a confirmed private arbitration award warranted summary judgment holding a debt nondischargeable per 11 U.S.C. § 523(a)(6) as based on “willful and malicious” injury. The arbitration satisfied the state law requirement that it *822 have been conducted using basic elements of adjudicatory procedure, and the confir...
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OPINION INTRODUCTION When Imperial Capital Bank (“Imperial”) sought relief from the automatic stay to foreclose its judgment lien, Kevin and Terry Concannon (“Debtors”) defended the motion in their chapter 7 bankruptcy case by seeking a valuation of their rental real property encumbered by the lien and avoidance of Imperial’s lien pursuant to 11 U.S.C. §§ 506(a) and (d). 2 ...
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OPINION Without authorization and without disclosing their bankruptcy, chapter 7 1 debtors Craig and Christine Tippett sold their home to appellant Seitu Coleman, paid off secured lienholders, and kept the net proceeds. A few months later, their trustee filed an adversary proceeding seeking turnover, quieting of title, and avoidance of the liens of Coleman’s lenders, appellant ...
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This is an appeal of a bankruptcy court order annulling the automatic stay and validating a foreclosure sale by HomeSide Lending, Inc., predecessor-in-interest of the appellee, Washington Mutual Bank, F.A. (“HomeSide”), of real estate co-owned by the appellant, Alison C. Bright (“Debt- or”). For the reasons set forth below, we affirm the order of the bankruptcy court. BACKGROUND I...
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MEMORANDUM OPINION The Court considers whether to grant summary judgment in favor of the defendants Carol Clayton Wilson, et al (the ‘Wilson Parties”).1 Ice Melt Products, L.L.C. (“Ice Melt”) is the plaintiff in this adversary proceeding and debtor-in-possession in the underlying chapter 11 case. The Wilson Parties submit that, as a matter of law, the relief sought by Ice Melt in this adversary ...
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MEMORANDUM OPINION AND ORDER REGARDING CLAIM OF PAS-CO COUNTY TAX COLLECTOR This is a contested matter, under Bankruptcy Code Section 505(a), to determine the amount of the Pasco County Tax Collector’s claim for 2004 tangible personal property taxes — filed in the amount of $61,472.96.1 The claim is based on an assessed valuation by the County’s Property Appraiser. The Liquidating Trustee for th...
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DECISION & ORDER BACKGROUND On January 2, 2003, Gerald F. Hoyt (“Hoyt”) and Carolyn M. Hoyt (collectively, the “Debtors”), filed a petition initiating a Chapter 13 case that was converted to a Chapter 7 case on November 3, 2004. On February 25, 2005, IBA, Inc. (“IBA”), which asserted a claim against Hoyt for in excess of $300,000.00 (the “IBA Obligation”), filed an Adversary...
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RULING ON DEBTORS’ MOTION TO AVOID JUDICIAL LIENS I. Donald W. Trahan (“Donald”) and Tricia E. Trahan (“Tricia”) (together “the debt *449 ors”), debtors in a joint Chapter 7 bankruptcy case commenced on October 9, 2005, filed a motion (“the motion”) pursuant to Bankruptcy Code § 522(f)(2) to avoid, as impairing their homestead exemptions, the judicial liens recorded ...
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MEMORANDUM OPINION The adversary proceeding before the Court is the complaint filed by Carol Ann Wyatt (“Plaintiff’) against Wanda Lorene Nowlin, a/k/a Wanda Lorene Doedli and Linda Griggs (“Defendants”) seeking a determination of the validity of a lien claimed by Defendants on Plaintiffs mobile home (“Complaint”). Plaintiff asserts that Defendants’ failure to obtain a written securit...
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MEMORANDUM OPINION On January 5, 2006, City Finance Company filed an objection to confirmation of Carrie S. Horn’s chapter 13 plan. At issue is whether the claim of City Finance must be treated as fully secured under provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Pub.L. No. 109-8)(“BAPCPA”). Jurisdiction The court’s jurisdiction is conferred by 28 U.S.C...
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POST-TRIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW The plaintiff and chapter 7 trustee of the estate of Nirvana Restaurant Inc. (“Nirvana”), Kenneth P. Silverman, Esq., commenced this adversary proceeding to avoid a guaranty given by Nirvana for the benefit of its affiliate, Landmark Club & Restaurant, Inc. (“Landmark Restaurant”), and to recover the rent payments made in conne...
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MEMORANDUM-OPINION This matter is before the Court on the Motion of Secured Creditor Regional Acceptance Corporation (“Regional Acceptance”) to Amend Confirmation Order. The Court considered the Motion of Regional Acceptance and the Objection to Motion of Regional Acceptance Corporation to Amend Confirmation Order of Debtors, Ronnie R. Ray and Angela G. Ray (“Debtors”). For the following reasons...
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MEMORANDUM-OPINION This matter came before the Court for a hearing on confirmation of the Chapter 13 Plan of the Debtors, Elmer Sturgill, Sr. and Linda F. Sturgill (“Debtors”). Creditor Roger Crain (“Crain”) filed an Objection to Confirmation of the Plan. Creditor Green Tree Servicing, LLC (“Green Tree”) also filed an Objection to the Plan. After considering the written submissions of the par...
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MEMORANDUM OPINION CONCERNING THE DEBTOR’S ELIGIBILITY PURSUANT TO 11 U.S.C. § 109(h) I. INTRODUCTION The matter before the Court concerns the above referenced debtor’s eligibility to be an individual consumer debtor pursuant to § 109 of the United States Bankruptcy Code (hereinafter referred to as “the Bankruptcy Code”), as amended by the Bankruptcy Abuse Protection and...
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DECISION AND ORDER Before me is an Order to Show Cause, issued sua sponte by this Court, why an adversary proceeding initiated by debtor-plaintiff George Sassower should not be dismissed. After hearing Sassower in opposition to the Order to Show Cause, I conclude that the proceeding must be dismissed on the merits because the complaint is patently frivolous and fails to state a claim against an...
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OPINION ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT This proceeding is before the Court on the plaintiff-trustee’s motion for partial summary judgment and the defendants’ response and counter-motion for partial summary judgment. The plaintiff-trustee was originally represented by counsel Christopher J. Redmond and Brian M. Devling; after the motions were filed, Mr. Devling withdrew and ...
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DECISION & ORDER The only open issue in this adversary proceeding is whether collection costs are properly treated as a non-dischargeable component of a student loan, even when the lender chose not to claim these collection costs for purposes of a distribution in chapter 13. Teresa L. Belton, the debtor herein, filed a petition for relief under chapter 13 of the Bankruptcy Code on October 13, 1...
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MEMORANDUM FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING ORDER VACATING CONFIRMATION OF CHAPTER 13 PLAN (Doc. #35) AND IMPOSING SANCTIONS UNDER RULE 9011 With the petition initiating this bankruptcy case, Debtors (through Counsel) filed a list of creditors that included the United States, Internal Revenue Service (IRS), but stated the IRS claim as “$0.00” even though Debtors and C...
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MEMORANDUM OPINION ON ASA’S MOTION (i) TO ABSTAIN, OR ALTERNATIVELY (ii) FOR DISMISSAL OR SUMMARY JUDGMENT I. INTRODUCTION This adversary proceeding presents an interesting attempt at using the Bankruptcy Code as a mechanism for forum shopping. In 2001, the plaintiff, Gilbane Building Company (Gilbane), entered into a contract with Air Systems Incorporated (ASI), which at the time wa...
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DECISION & ORDER Upon filing their petition for relief under chapter 7 of the Bankruptcy Code, William and Rebecca Hirsch sought to exempt the full value of a coin collection from administration by their case trustee. The trustee then filed a timely objection to this exemption. For the reasons stated hereafter, the trustee’s objection is sustained, but only to the extent of the difference betwe...
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MEMORANDUM OPINION AND ORDER DENYING IN PART MOTION FOR ALLOWANCE OF ADMINISTRATIVE EXPENSES AND SETTING FURTHER HEARING The Court conducted a hearing on January 3, 2006 at 2:00 p.m. on the “Amended Motion for Entry of Order Determining Entitlement to Allowance of Claim for Administrative Expenses Pursuant to § 503(b) of the Bankruptcy Code by Interested Party, Miami River Development, LLC” (the...
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AMENDED MEMORANDUM DECISION The court, having considered its Order to Show Cause Re: Dismissal entered on January 6, 2006, in conjunction with the ex parte request of Debtor, Juan Mingueta (“Mingueta”) for a waiver of the require *835 ment to obtain pre-bankruptcy budget and credit counseling, makes the following findings of fact and conclusions of law. 1 I. STATEMENT OF FACTS On Janu...
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OPINION AND ORDER GRANTING MOTION TO DISMISS COMPLAINT The plaintiffs (collectively “Salsberg”) filed this adversary proceeding to revoke the confirmation order entered in these chapter 11 cases on January 21, 2005. The defendants and debtors, Trico Marine Services, Inc., Trico Marine Assets, Inc., and Trico Marine Operators, Inc. (collectively “Trico”), moved for judgment on the pleading...
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MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT The parties to this adversary proceeding filed for summary judgment under Fed. R.Civ.P. 56(a) and (b), respectively, as incorporated by Fed. R. Bank. P. 7056. They dispute the interpretation of the Asset Purchase Agreement dated as of September 4, 2003 (the “APA”) pursuant to which defendants Ideasphere, Inc. and TL Ac...
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ORDER AND OPINION CONFIRMING TERMINATION OF THE AUTOMATIC STAY This matter came before the Court for hearing on February 8, 2006 upon the Motion by CitiFinaneial Auto Ltd. (“CitiFi-nancial”) to Confirm Termination or Ab *550 sence of the Automatic Stay. At the hearing, James E. Vaughan appeared on behalf of CitiFinancial. Having considered the motion and arguments of counsel, the court makes ...
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MEMORANDUM OPINION I. INTRODUCTION Scott Edward Baldassaro (the “Debtor”) filed a Motion for Continuation of the Automatic Stay (Doc. No. 8) (the “Motion”) pursuant to § 362(c)(3) of the Bankruptcy Code. 1 This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and the “Standing Order of Referral of Title 11 Proceedings to the United Stat...
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MEMORANDUM DECISION AND ORDER GRANTING JUDGMENT TO THE PLAINTIFF, PANEL TOWN OF DAYTON, INC., AND CROSS-CLAIMANT, DEL NORTE REFINANCE, LLC AND NOTICE OF TELEPHONE CONFERENCE This matter is before the court on Plaintiff and Debtor Panel Town of Dayton, Ine.’s (“Debtor” or “Panel Town”) Complaint filed against the Defendants Edward M. Corrigan (“Corrigan”) and Del Norte Refinance, LLC (“Del...
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ORDER Before the Court is an objection to confirmation of a Chapter 12 plan proposed by Edmond Torelli (“Debtor”). Regions Bank (“Regions”), a secured creditor in the case, filed the objection on July 7, 2005, and the Court conducted a confirmation hearing on September 9, 2005, after which the issue of whether to confirm the plan was taken under advisement. The Debtor and Regions have...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter comes before the Court on the Motion for Summary Judgment (“Motion”) filed by Defendant Gibson Dunn & Crutcher, LLP (“GDC”). 7. BACKGROUND AND POSITIONS OF THE PARTIES A. Uncontested Facts On July 19, 2001, the Debtor, ms44, Inc., f/k/a MSHOW.COM, Inc. (“Mshow” or “Debtor”) filed a...
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OPINION Educational Credit Management Corporation (“ECMC”) appeals an order of the bankruptcy court discharging the debtor’s student loans as the result of undue hardship pursuant to 11 U.S.C. § 523(a)(8). For the reasons set forth below, we AFFIRM the decision of the bankruptcy court. I. ISSUES ON APPEAL Whether the second prong of the Brun-ner test requires corroborating evidence in the...
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MEMORANDUM OPINION This matter came before the Court for hearing on January 26, 2006, upon the Proposed Order of Confirmation filed by the Chapter 13 Trustee on January 11, 2006, and the Objection to Confirmation of Plan filed by General Motors Acceptance Corporation (“GMAC”) on January 13, 2006. At the hearing, John H. Boddie appeared on behalf of the Debtors, Pamela P. Keenan appeared on be...
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OPINION The Debtor, Wayne D. Steward, moves pursuant to 11 U.S.C. § 362(a) for a determination that Alfred Vail Mutual Association (“the Association”) and its attorney are in violation of the automatic stay for proceeding against Mr. Steward in the state court. This court finds the Association and the law firm in violation of the automatic stay by continuing to pursue the removal of t...
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OPINION This case presents the issue of whether the debtors, who filed a joint petition seeking relief under chapter 7 of the Bankruptcy Code, may claim an exemption in real estate held in tenancy by the entirety. The trustee opposes the exemption of the entireties property, arguing that, in the situation of a joint bankruptcy filing, her avoidance powers under 11 U.S.C. § 544 place her in th...
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MEMORANDUM OPINION I. Introduction In a case filed under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, the debtor filed a plan that provides no return to her unsecured creditors. The chapter 13 trustee urges the court not to confirm the plan, alleging that the debtor has failed to commit to the plan all of her projected disposable income as required by 11 U.S.C. § 1...
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MEMORANDUM OPINION ON DISCHARGEABILITY COMPLAINT Came before the Court for trial on February 7, 2006, the Complaint objecting to dischargeability, pursuant to 11 U.S.C. § 523(a)(5), 1 filed by Plaintiff, County of Dallas, Texas. In the Complaint, Plaintiff seeks to except from discharge its claim based on a state court judgment to help defer the costs for placement of the D...
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ORDER OVERRULING OBJECTIONS TO CONFIRMATION BY FIRESIDE BANK AND MIDWEST UNITED CREDIT UNION Debtor Marijohn LaNette Robinson filed her voluntary Chapter 13 bankruptcy petition on October 27, 2005. In her Schedules, the Debtor lists two vehicles, a 2003 Mitsubishi Galant which is subject to a secured claim held by Midwest United Credit Union, 1 and a 1999 Buick Regal, which is subject to a ...
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MEMORANDUM I. INTRODUCTION The matters before the Court are Cross-Motions for Partial Summary Judgment with respect to Counts I, II, III and XIII of the Complaint filed by Lynne F. Riley, Chapter 7 Trustee of the Estate of Jane A. Tougas, the Debtor. Through her Motion for Partial Summary Judgment, the Trustee seeks 1) a declaration that certain property held by Jane A. Tougas (the “...
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MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT Defendant Keystone NJP IV, LLC (“Keystone”) brings this motion for summary judgment to dismiss the Second Count of plaintiff-debtor Peter J. Gould’s December 7, 2004 complaint. For the reasons that follow the motion is granted. Background The following material facts are not in dispute: 1 On April 2, 1991, Lensclea...
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MEMORANDUM OPINION Aetna, Inc. (hereafter “Aetna”), the instant defendant, brings its Motion for Re*275lief from a Default Judgment to obtain relief from a $235,941.52 default judgment entered against it in the instant adversary proceeding on December 11, 2003 (hereafter “the Default Judgment”). Aetna did not file such motion until November 9, 2005, or nearly two years after the entry of the De...
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MEMORANDUM OF DECISION ON OFFICIAL COMMITTEE’S MOTION FOR AN ORDER REGARDING ACCESS TO INFORMATION UNDER 11 U.S.C. § 1102(b)(3)(A) Soon after its appointment, the Official Committee of Unsecured Creditors (the “Committee”) filed a motion to clarify its obligation under section 1102(b)(3)(A) of the Bankruptcy Code to provide unsecured creditors who are not members of the Committee with acc...
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EXTRACT OF BENCH RULING DISALLOWING AMENDED CLAIMS Before the Court is the Thirty-Eighth Omnibus Objection to Certain Landlord Claims with respect to certain claims filed by Fairlane Town Center LLC (“Fair-lane”) against Spiegel, Inc. and certain of its direct and indirect subsidiaries (the “Debtors”). The Spiegel Creditor Trust (the “Creditor Trust” or the “Trust”), has taken over the prosec...
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DECISION GRANTING MOTION TO DISMISS CLAIMS FILED BY JAN-NETTE HUGHES, LANCE SCHUBERT, JMARCEL ENTERPRISES, J. MARCEL DE MEXICO AND J. MARCEL ENTERPRISES OF YUMA PURSUANT TO RULE 12(b)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE Before the Court is a motion to dismiss pursuant to the Federal Rules of Civil Procedure, (the “Rules”) Rule 12(b)(6), objecting to proofs of claim filed by Jannette Hugh...
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*100AMENDED OPINION1 I.Introduction On December 5, 2001, Hayes Lemmerz International, Inc. and certain affiliated entities (hereinafter referred to as “Debtors”) filed petitions under Chapter 11 of the Bankruptcy Code. Pursuant to the Modified First Amended and Joint Plan of Reorganization of Hayes Lemmerz International, Inc. and its Affiliated Debtors and Debtors-In-Possession, Dated April 9, ...
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MEMORANDUM OPINION Centrix Funds Series CLPF (“Centrix”) filed an objection on January 12, 2006 to confirmation of the chapter 13 plan proposed by the debtors. At issue is whether under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Pub.L. No. 109-8) (“BAPCPA”) the plan may modify the contractual interest rate applicable to the creditor’s secured claim. Jurisdiction ...
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MEMORANDUM OPINION AND ORDER Before the Court is the chapter 13 trustee’s objection to confirmation of the debtors’ plan filed on November 28, 2005. The basis for the trustee’s objection is that the debtors have scheduled monthly charitable contributions in the amount of $416.00 while only paying unsecured creditors approximately 1 percent of their claims over the life of the plan. The trustee ...
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OPINION This motion requests authority to appoint the plaintiff bankruptcy trustee to act on behalf of the judgment debtor to withdraw $250,000 from an ERISA-quali-fied pension plan as an exercise of the court’s authority to appoint a person to perform an act on behalf of a disobedient party pursuant to Federal Rule of Civil Procedure 70 and Federal Rule of Bankruptcy Procedure 7070. The ...
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ORDER ON DEBTOR’S PETITION OF EXIGENT CIRCUMSTANCES THAT MERITS WAIVER OF BUDGET AND CREDIT COUNSELING This cause came to be heard at 10:00 a.m. on January 31, 2006, pursuant to this Court’s notice of hearing on Debtor’s Certification of Exigent Circumstances. Court Paper # 3 is Jean Raoul Petit-Louis’ December 30, 2005 letter to Assistant United States Trustee M. Regina Thomas, in which Mr. ...
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OPINION Introduction Paul M. Andrzejewski (“Mr. Andrzejew-ski”) and Michelle L. Andrzejewski (“Mrs. Andrzejewski”) (or Mr. And Mrs. Andrze-jewski collectively, the “Debtors”) filed a voluntary Petition under Chapter 7 of the Bankruptcy Code on November 29, 2004. Gary V. Skiba, Esq. (“Trustee”) serves as Chapter 7 Trustee. Presently before the Court are the Trustee’s Objection to Claim for...
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MEMORANDUM OF DECISION ON MOTION OF PLAINTIFF CRAIG R. JALBERT, LIQUIDATING SUPERVISOR, FOR JUDGMENT ON THE PLEADINGS ON COUNTS I AND III OF THE COUNTERCLAIM OF DEFENDANTS C. DAVID CHASE AND ALAN R. STONE AND TO STRIKE THEIR THIRD AFFIRMATIVE DEFENSE I. INTRODUCTION Craig R. Jalbert, the Liquidating Supervisor of Servicesense.com (the “Liquidating Supervisor”) moves to dismiss the counterclaims t...
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Valerian J. Ziemski appeals the bankruptcy court’s order determining that his post-petition receipt of certain military retirement benefits pursuant to a pre-petition state court order was in violation of the automatic stay of 11 U.S.C. § 362; requiring Mr. Ziemski to turn over such military retirement benefits to the Trustee of Rosemarie Ziemski’s bankruptcy estate; determining that Mr. Ziemski’...
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OPINION For the reasons outlined below, the Court hereby REVERSES and REMANDS to the bankruptcy court. Background The facts of this appeal are undisputed and straight forward. When they filed their petition, the Appellants-Debtors listed their home with a value of $99,000 encumbered by liens exceeding its value. One of the lien creditors moved to modify the stay to ...
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MEMORANDUM OPINION This case tests the limits of a debtor’s rights to alter the court’s chapter 13 plan form over the objections of the chapter 13 trustee and concerned creditors. The debtor is attempting through proposed additional plan provisions to establish a right to pay off his chapter 13 plan early, without being obligated to pay all allowed unsecured claims in full and without hav...
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AMENDED OPINION DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF’S COMPLAINT This matter came before the Court on the Plaintiff/Trustee Charles Wells Ill’s Motion for Summary Judgment. Plaintiff requests summary judgment on a two-count Complaint seeking: (1) a determination of the amount, validity and extent of creditor TCF National Bank’s Claim, and (2) avoidance of a...
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MEMORANDUM OF DECISION I. The matter before the court (“the present proceeding”) is the objection of John J. O’Neil, Jr. (“the trustee”), Chapter 7 trustee in the bankruptcy case of Dorothy Estarellas (“the debtor”), to the debtor’s second amendment to Schedule C (“Property Claimed As Exempt”) in her petition. The issue presented is whether the debtor may apply the Connecticut ho...
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OPINION Christopher J. Redmond (“Trustee”), the Chapter 7 trustee in the above-eap-tioned case, appeals two orders of the Bankruptcy Court for the District of Kansas: 1) overruling the Trustee’s objection to a claim of homestead exemption (the “Exemption Order”) and 2) granting a motion for dismissal of one joint debtor (the “Dismissal Order”). After review, we affirm the bankruptcy court...
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MEMORANDUM OF OPINION AND ORDER Before the Court is the motion of Gerald M. Fisher (“Fisher”) to intervene in the above captioned adversary proceeding. The Plaintiff Marc P. Gertz, Chapter 7 Trustee for the Debtor (the “Trustee”), has filed an opposition to Fisher’s motion. The Court acquires core matter jurisdiction over this proceeding under 28 U.S.C. § 157(b) and General Order No. 84 of this...
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MEMORANDUM OF OPINION AND ORDER Before the Court for resolution are cross-motions for summary judgment filed by the Debtor Jose M. Rivera (the “Debt- or”) and by Marvin A. Sicherman, the Chapter 7 Trustee (the “Trustee”), respectively. The Court acquires core matter jurisdiction over this proceeding under 28 U.S.C. § 157(b)(2) and General Order No. 84 of this District. Upon an ex...
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OPINION DENYING (1) DEFENDANT’S MOTION TO DISMISS; (2) DEFENDANT’S MOTION TO ABSTAIN; AND (3) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I. Introduction Douglas Andrus is the Debtor in this Chapter 7 case. The Debtor filed this adversary proceeding seeking a determination that a debt of $146,184.04 owed by him to his former s...
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MEMORANDUM OF OPINION AND ORDER Before the Court is David I. Jaffe’s (“Jaffe”) motion for summary judgment on his complaint to determine a debt of Debtors Michael and Debra E. Dawson (collectively, the “Dawsons”) to be nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). 1 The Court acquires core matter jurisdiction over this proceeding under 28 U.S.C. § 157(b)(2)(J) and ...
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MEMORANDUM OPINION DENYING DEBTOR’S MOTION FOR SUMMARY JUDGMENT Is new Bankruptcy Code Section 522(p), which would limit the homestead exemption to $125,000 if the debtor has not owned the residence for 1,215 days before filing, inapplicable in opt-out states like Florida? This issue has already been decided by several courts, one of which held that the Section 522(p) cap does not apply in an...
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MEMORANDUM OPINION This matter comes before the Court on HSBC Auto Finance’s objection to plan confirmation. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(L). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in conformance with Federal Rule of Bankruptcy Procedure 7052. Fin...
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339 B.R. 481 (2006) In re Susan Marie FLISS, Debtor. Susan Marie Fliss, Plaintiff, v. Iowa Department of Revenue, Defendant. Bankruptcy No. 05-02455S, Adversary No. 05-9087S. United States Bankruptcy Court, N.D. Iowa, Western Division. March 8, 2006. *482 *483 Donald H. Molstad, Sioux City, IA, for Debtor. DECISION WILLIAM L. EDMONDS, Bankruptcy Judge. Debtor Susan Marie Fliss asks the court to ...
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MODIFIED MEMORANDUM AND ORDER RE: MOTION TO CONTINUE AND EXTEND THE AUTOMATIC STAY The matter before the court is the above-referenced debtors’ (the “Debtors”) Motion To Continue and Extend the Automatic Stay (Doc. I.D. No. 4, the “Motion”) 1 filed pursuant to Section 362(c)(3)(B) of the United States Bankruptcy Code (as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act...
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MEMORANDUM OF OPINION AND ORDER Before the Court is the defendant Echo Rock Ventures, LLC’s (“Echo Rock”) motion to dismiss or, alternatively, to stay action pending arbitration and grant related relief. Upon an examination of the parties’ respective briefs and supporting documentation and conducting a hearing on the matter, the following findings of fact and conclusions of law are heréby rende...
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339 B.R. 136 (2006) In re Warren L. ELLIS, Sr., Debtor. No. 05-39345DWS. United States Bankruptcy Court, E.D. Pennsylvania. February 24, 2006. *137 David A. Scholl, Esquire, Regional Bankruptcy Center, Law Office of David A. Scholl, Newtown, PA, for debtor. William C. Miller, Esquire, Standing Chapter 13 Trustee, Philadelphia, PA, for trustee. OPINION DIANE WEISS SIGMUND, Chief Judge. Before the...
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ORDER GRANTING MOTION TO AVOID FIXING OF JUDICIAL LIEN OF HELPING PEOPLE SUCCEED, INC. PURSUANT TO 11 U.S.C. § 522(f)(1)(A) (DOCKET #16) THIS MATTER comes before the Court on Motion to Avoid Fixing of Judicial Lien of Helping People Succeed, Inc. (“Creditor”) Pursuant to 11 U.S.C. § 522(f)(1)(A) (“Motion”) filed by Peter Lew Saal and Isabel Brones (“Debtors”) on January 18, 2006 (Docket #...
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MEMORANDUM OPINION AND ORDER GRANTING TRUSTEE’S OBJECTION TO DEBTORS’ CLAIM OF EXEMPT PROPERTY (DOCKET # 8) THIS MATTER came before the Court, on February 7, 2006, for a telephonic preliminary hearing regarding the Objection to Debtors’ Claim of Exempt Property filed by Glen R. Anstine, Chapter 7 Trustee (“Trustee”), on December 14, 2005 (Docket # 8), and the Response thereto filed by Gregory A...
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Memorandum Opinion This adversary proceeding was brought by the Debtor, Delores E. Ross (“Debtor”) *267 against Citifinancial Mortgage Co., Inc. (“Citimort”), to object to Citimort’s proof of claim (the “Claim”) and recoup damages against the Claim under the Truth in Lending Act (“TILA”). Trial having been held on this matter, it is ripe for adjudication. FINDINGS OF...
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This matter is on appeal from the September 14, 2005 judgment and memorandum opinion of the bankruptcy court (the “Judgment”) dismissing the involuntary petition on the grounds that the petitioning creditors’ claims were “ ‘the subject of a bona fide dispute as to liability’ within the meaning of 11 U.S.C. § 303(b)(1).” Because we conclude that the bankruptcy court committed an error of law, we...
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MEMORANDUM OPINION AND FINAL JUDGMENT Before the court is the issue of which of two liens, that held by TSCA-231 Limited Partnership (“TSCA”) or that held by GE Capital Small Business Corporation (“GE”), has priority with regard to certain assets of the estate of GSYS Enterprises, Inc. (“Debtor”). The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334(a) and 157(b)(2)(E). T...
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MEMORANDUM OPINION Before this court is Debtors’ Motion to Hold the Internal Revenue Service in Contempt and Impose Sanctions (the “Motion”) and the motion of the Internal Revenue Service to quash the Motion (the “IRS” and the “IRS Motion”). Together with briefs filed by each of Debtors (“Debtors’ Brief’) and the IRS (“IRS Brief’), the parties have submitted a Stipulation of Facts (the “Stipu...
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MEMORANDUM OPINION ON DETERMINATION OF DISCHARGE-ABILITY UNDER 11 U.S.C. SECTIONS 523(a)(2)(A), 523(a)(4), and 523(a)(6) This adversary proceeding came on for trial on October 31, 2005, and November 1, 2005, on the Amended Complaint to Determine Dischargeability of Debt (the “Complaint”) filed by plaintiff, Marbella, LLC (“Marbella”), against the debtor/defendant, Jean Pierre Andre Cu...
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ORDER DENYING MOTION TO IMPOSE AUTOMATIC STAY Now before the Court is the Debtor’s Motion to Impose the Automatic Stay (“Motion to Impose”) filed on February 2, 2006. The Debtor filed bankruptcy under Chapter 13 on December 29, 2005. The Debtor previously filed bankruptcy under Chapter 13 on November 24, 2004. That case was dismissed on November 1, 2005. Pursuant to 11 U.S.C. § 362(c)(3)(A)...
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ORDER GRANTING MOTION TO IMPOSE AUTOMATIC STAY Now before the Court is the Debtor’s Motion to Impose the Automatic Stay (“Motion to Impose”) filed on February 2, 2006. The Debtor filed bankruptcy under Chapter 13 on January 4, 2006. The Debt- or previously filed bankruptcy under Chapter 13 on April 25, 2005. That case was dismissed on December 14, 2005. Pursuant to 11 U.S.C. § 362(c)(3)(A),...
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MEMORANDUM DECISION GRANTING THE DEBTOR’S MOTION TO DISMISS Before the Court is the motion dated December 11, 2005, of Naomi Hull, the *306 above-captioned debtor (the “Debtor”) to dismiss her Chapter 7 case, or in the alternative, to convert this Chapter 7 case to a case under Chapter 13 (the “Motion”), and the opposition to the Motion filed by Robert J. Musso, as Chapter 7 trustee (the “Tru...
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MEMORANDUM DECISION DENYING WITHOUT PREJUDICE THE PETITIONER’S REQUEST FOR A THIRTY-DAY EXTENSION TO OBTAIN BUDGET AND CREDIT COUNSELING AND ALLOWING THE PETITIONER TEN DAYS TO AMEND THE REQUEST On January 5, 2006 (the “Petition Date”), Kathy Henderson (the “Petition *36 er”) filed a petition for relief under Chapter 13 of Title 11 of the United States Code (the “Bankruptcy C...
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OPINION AND ORDER In the case of In re White, 169 B.R. 526 (Bankr.W.D.N.Y.1994), this Court ruled that if a Chapter 13 debtor loses her manufactured home despite good faith efforts *311 to save it under her Plan, she may treat any deficiency as an unsecured claim, because that is a necessary implication of our Chapter 13 Plans. In the case of In re Taylor, 243 B.R. 226 (Bankr.W.D.N.Y.20...
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MEMORANDUM OPINION He who rejects change is the architect of decay. The only human institution which rejects progress is the cemetery. 1 Like virtually every other facet of American life, the practice of law has changed dramatically in the past twenty-five years. Those of us who were around the profession in 1981 remember items such as carbon paper, typewriters, rotary...
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OPINION ON SUMMARY JUDGMENT MOTION In this adversary proceeding, the Chapter 7 trustee challenges the secured position of the pre-petition levying judgment creditor, Continental Casualty Company, on the ground that the creditor failed to comply with the sequence of execution requirements specified in N.J.S.A. § 2A:17-1. The trustee moves here for summary judgment against the judgment ...
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339 B.R. 115 (2006) In re Jack C. BENUN, Debtor. Fuji Photo Film Co., Ltd., Plaintiff, v. Jack C. Benun, Defendant. Bankruptcy No. 03-32195(MS), Adversary No. 03-2615(MS). United States Bankruptcy Court, D. New Jersey. March 10, 2006. *116 *117 Bruce Buechler, Esq., Lowenstein Sandler PC, Roseland, NJ, Matthew W. Siegal, Esq., Stroock, Stroock & Lavan, LLP, New York, NY, for Fuji Photo Film C...
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ORDER Before the Court is the Trustee’s Objection to Exemptions filed by R. Ray Ful-mer, II [the Trustee]. The Trustee objects to the Debtor’s claim of homestead exemption under the Arkansas Constitution. The issue before the Court is whether the Debtor qualifies as a head of household. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157, and it is a core p...
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ORDER On this date, the Court considers the motion to dismiss filed by the Chapter 13 Standing Trustee on November 1, 2005. The issue at bar is whether a debtor’s case should be dismissed because she did not obtain credit counseling prior to filing her voluntary petition and did not file a certificate of credit counseling or a certification of exigent circumstances satisfying the three requir...
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MEMORANDUM OF OPINION AND ORDER Before the Court is the motion of Daniel Ferguson (“Ferguson”) for relief from the automatic stay under § 362(d) of the United States Bankruptcy Code to the extent necessary to set off certain amounts owing from and owed to the Debtors. 1 The Court acquires core matter jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), (b) and 1...
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MEMORANDUM OF OPINION AND ORDER Before the Court is the Virginia Employment Commission’s (“VEC”) Motion for Leave to File Late Proof of Claim (“VEC Motion”). The trustee of the Omega Liquidating Trust (the “Trustee”) has filed an opposition to the VEC Motion (“Trustee’s Opposition”). The Court acquires core matter jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), (b)...
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MEMORANDUM OF OPINION AND ORDER Before the Court is the complaint of Sysco Corporation and the SYGMA Network (collectively, “Sysco”) seeking to enjoin the Debtor Chi-Chi’s Inc. (“ChiChi’s”) from initiating, continuing, and/or participating in any additional actions, including arbitration, against them in connection with certain hepatitis claims. The Court acquires core matter jur...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Trent D. Ginter (“Debtor”) to avoid a non-possessory, non-purchase money security interest. Alliant Bank-Boonville (“Alliant”) argues that Debtor cannot now avoid its security interest because he previously stipulated to relief from the stay and should now be estopped from avoiding Alliant’s security interest in the personal...
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MEMORANDUM OPINION The Debtor, Daniel P. Swartz, filed this adversary action to obtain a determination that $172,956 in “maintenance” he was ordered to pay his ex-wife, Shawnet-ta Swartz (“Defendant”), under the decree dissolving their marriage is dis-chargeable. Although maintenance is generally nondischargeable under § 523(a)(5) of the Bankruptcy Code, and despite the decree’s refer...
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MEMORANDUM OPINION The matter before the Court in this case is the objection by the trustee to the head of household exemption claimed by debtor Evan Joshua Swigart (“Debtor”) pursuant to Mo.Rev.Stat. § 513.440. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334(b) and 157(a) and (b). This is a core proceeding which the Court may hear and determine pursuant to 28 U.S.C. § ...
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339 B.R. 784 (2006) In re Cynthia CLAY, Debtor. No. 05-80043. United States Bankruptcy Court, D. Utah, Central Division. March 15, 2006. Kevin Anderson, Office of Chapter 13 Trustee, Salt Lake City, UT, for trustee. David T. Berry, Berry & Tripp, P.C., Salt Lake City, UT, for debtor. MEMORANDUM OPINION WILLIAM T. THURMAN, Bankruptcy Judge. The matter before the Court is the Court's considera...
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OPINION RE; TRUSTEE’S OCTOBER 13, 2005 MOTION FOR SUMMARY JUDGMENT The State of Michigan has filed a claim for reimbursement of unemployment benefits paid to Albion Health Services’ former *173 employees. The Chapter 7 Trustee has objected to the allowance of that claim as a tax priority. The Trustee’s objection is SUSTAINED. PROCEDURAL BACKGROUND The State ...
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339 B.R. 489 (2006) Scott A. VASKE and Stephanie M. Vaske, Debtors. No. 04-02500F. United States Bankruptcy Court, N.D. Iowa. March 20, 2006. *490 Eldon J. Winkel, Algona, IA, for Debtors. ORDER RE: MOTION TO AVOID LIEN; OBJECTION TO REOPENING OF CASE WILLIAM L. EDMONDS, Bankruptcy Judge. On December 21, 2005, Scott and Stephanie Vaske obtained an order reopening their chapter 7 case. They have ...
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MEMORANDUM OF DECISION Before this Court is a “Motion to Proceed In Forma Pauperis” filed by Robert White, a creditor in this case. Although rulings on such motions are typically informed by a limited and short history of prior proceedings, the appropriate disposition of this motion requires its review in proper extended context. I. BACKGROUND CK Liquidation Corporat...
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This case presents the issue of whether a private professional bail bond surety may seek a determination of non-dis-chargeability pursuant to 11 U.S.C. § 523(a)(7) against a debtor who agreed to indemnify the bail bonding agency if her husband did not appear in on his appointed trial date. Section 523(a)(7) excepts from discharge those debts that are “..a fine, penalty, or forfeiture payable to a...
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MEMORANDUM OPINION These matters come before the Court on the final report and account of Gina Krol, Chapter 7 trustee (the “Trustee”) of the bankruptcy estate of Janice Diane Rybka (the “Debtor”), the Trustee’s application for compensation for her services as trustee under 11 U.S.C. §§ 326 and 330, and the application for compensation of her attorneys, the law firm of Cohen & Krol (t...
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MEMORANDUM-OPINION This matter is before the Court on the Motion to Remand to State Court of Nelson Clemmens (“Clemmens”) and the Objection to Defendant’s Motion to Remand of Plaintiff/Debtor ThermoView Industries, Inc. (“Debtor”). A hearing on the matter was held on January 11, 2006 and Plaintiff was permitted additional time to file a written response to the Motion to Remand after which the ma...
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339 B.R. 420 (2006) In re Dennis Lee TAPP, Debtor. B.S. Rawlings, Plaintiff, v. Dennis Lee Tapp, Defendant. Bankruptcy No. 04-34647, Adversary No. 04-3342. United States Bankruptcy Court, W.D. Kentucky. March 16, 2006. *421 *422 C. Thomas Hectus, Louisville, KY, for Debtor. *423 MEMORANDUM-OPINION JOAN L. COOPER, Bankruptcy Judge. This matter came before the Court for trial on the Complaint of...
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MEMORANDUM DECISION RE: DEBTOR’S MOTION TO DISMISS CASE Mary A. Fulton asks the court to dismiss her chapter 7 case. The trustee, Larry S. Eide, objects. Hearing was held March 14, 2006. Kristy A. Arzberger appeared for Fulton. Larry S. Eide appeared on his own behalf. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A). Fulton filed her chapter 7 petition on October 14, 2005. She is emp...
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339 B.R. 508 (2006) In re ROCOR INTERNATIONAL, INC., dba Rocor Transportation, fdba Consolidated Traffic Management Company, Debtor. Rocin Liquidation Estate, successor in interest to Rocor International, Inc., debtor and debtor-in-possession, Plaintiff, v. Pan-American Life Insurance Company, Defendant. Bankruptcy No. 02-17658WV, Adversary No. 04-1270-WV. United States Bankruptcy Court, W.D. Okl...
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MEMORANDUM OF DECISION Before this Court is the “Motion of International Enterprises, Inc. for Entry of Default Judgment Pursuant to the Court’s Order of September 23, 2005,” filed in its adversary proceeding against Denise J. Eddy (the “Debtor”). Also under consideration is the “Motion of John A. Burdick, Jr., Chapter 7 Trustee, for Civil Contempt and Sanctions,” filed in the Debtor’...
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339 B.R. 279 (2006) In re Benedetto SALVUCCI and Norma Marie Salvucci, Debtors. No. 05-21229-WCH. United States Bankruptcy Court, D. Massachusetts, Eastern Division. March 14, 2006. *280 Terrence L. Parker, Boston, MA, for Debtors. Melvin S. Hoffman, Looney & Grossman, Boston, MA, for trustee. MEMORANDUM OF DECISION WILLIAM C. HILLMAN, Bankruptcy Judge. I. Introduction The matter before the ...
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MEMORANDUM OF PARTIAL DECISION AND ORDER RE: MOTION FOR ALLOWANCE OF CLAIM AND DISTRIBUTION OF PROCEEDS TO TOWN OF NEWTOWN The matters before the court are that certain Motion for Allowance of Claim and Distribution of Proceeds to Town of New-town (Doc. I.D. No. 217, the “Motion”)1 and the Debtor’s Objection to Motion for Allowance of Claim and Distribution of Proceeds to Town of Newtown (Doc. I...
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339 B.R. 293 (2006) In re Peter J. GOULD, d/b/a Cherry Hill Development Co., Debtor. Peter J. Gould, d/b/a Cherry Hill Development Co., Plaintiff, v. S.S. Silberblatt, Inc. and Marigon Corporation, Defendants. Bankruptcy No. 03-51180, Adversary No. 04-05046. United States Bankruptcy Court, D. Connecticut. March 15, 2006. *294 *295 Thomas J. Romans, Hackensack, NJ, Peter L. Ressler, Groob Ressler ...
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ORDER DENYING MOTION FOR REHEARING OR RECONSIDERATION THIS CASE came on for hearing March 16, 2006, on the Motion of Centex Home Equity Company, LLC (Centex) for Rehearing or Reconsideration of this Court’s order entered on February 22, 2006 imposing the automatic stay in this Chapter 13 case. Appearing at the hearing were Leigh Hart, Chapter 13 Trustee; Allen Turnage, attorney for the Debtor...
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MEMORANDUM DECISION RE: OBJECTION TO THE CLAIM OF WELLS FARGO FINANCIAL ACCEPTANCE Debtors Donald and Sherri Schrandt object to the unsecured claim of Wells Fargo Financial Acceptance (hereinafter Wells Fargo). Schrandts contend that Wells Fargo, in negotiating with them as to the amount of its secured claim, had agreed to waive any unsecured claim. Hearing was held on March 14, 2006 in Mason City...
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ORDER INTERPRETING 11 U.S.C. § 362(c)(3)(A) AND EXTENDING AUTOMATIC STAY PURSUANT TO § 362(c)(3)(B) The matter before the court is the Motion for Declaratory Judgment and, in the Alternative, for the Continuance of the Automatic Stay filed by the chapter 13 debtor, Thaddeus Rudolph Jones, Jr. The debtor, in his motion filed on January 17, 2006, requests the court to interpret the meaning of the...
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MEMORANDUM OPINION The matter before the Court is the Jass-es’ request for confirmation of their proposed chapter 13 plan. Specifically, the Court is called upon to determine whether the Jasses’ “disposable income” as determined by their Statement of Current Monthly Income (Form B22C) is the same as “projected disposable income” as used in 11 U.S.C. § 1325(b)(1)(B). 1 The Jasses contend that ...
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This is an appeal from an Order of the United States Bankruptcy Court for the Eastern District of Missouri 1 issued on September 12, 2005, in which the court granted the Chapter 13 Trustee’s Motion for Order Denying Attorney Fees and Directing Disgorgement of Fees Paid. We affirm. FACTUAL BACKGROUND Ross H. Briggs filed a Chapter 13 bankruptcy case on behalf of Debtor James...
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OPINION RE: SBC’S JANUARY 17, 2006 MOTION On January 17, 2006, Michigan Bell Telephone Company d/b/a SBC Michigan (“SBC”) filed its motion for relief from the automatic stay with respect to its interconnection agreement with Lucre, Inc. Among other things, SBC requests that the automatic stay be modified so that it may attempt to dissolve state court injunctions that are currently pre...
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MEMORANDUM OPINION AND ORDER Introduction and Background AgTexas, PCA (“AgTexas”) seeks reconsideration of the Court’s order entered September 7, 2005, granting the objection of Floyd Holder (“Holder” or “the Trustee”), the chapter 7 trustee in this bankruptcy case, to AgTexas’s proof of claim. The order, which was agreed to by AgTex-as and Holder, states (i) that AgTexas filed a...
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Opinion on Objection to Exemptions and Cross-Motions for Summary Judgment Deborah Rechis filed a voluntary chapter 7 bankruptcy petition on May 27, 2004. In her initial schedules, Rechis disclosed an interest in her home and did not disclose a co-owner. Mark Shapiro is the duly appointed chapter 7 trustee. In order to purchase their home, Rechis and her husband obtained a loan fr...
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MEMORANDUM OPINION Thomas and Teresa Hodges (Debtors) are husband and wife. They filed a Chapter 7 bankruptcy case in 2003. They employed the law firm of Carlson, McMahon & Sealby, PLLC (CMS) to handle their case. CMS contends that Debtors owe it money for handling the bankruptcy. CMS assigned Debtors’ bill to Armada for collection. The relationship between these three parties is rather i...
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339 B.R. 907 (2006) In re Marla Karen McCASHEN, Debtor. No. 05-93549. United States Bankruptcy Court, N.D. Ohio, Eastern Division. March 23, 2006. *908 Edgar A. Ramos, Rocky River, OH, for Debtor. Robert D. Barr, Dettelbach, Sicherman & Baumgart, Cleveland, OH, for trustee. MEMORANDUM OF OPINION PAT E. MORGENSTERN-CLARREN, Bankruptcy Judge. Chapter 7 debtor Marla McCashen claimed an exemptio...
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339 B.R. 587 (2006) In re James L. BARBER, Debtor. James L. Barber, Movant, v. K-B Building Co., Respondent. No. 01-22820BM. United States Bankruptcy Court, W.D. Pennsylvania. March 17, 2006. *588 *589 David J. Novak, James R. Walsh, Johnstown, PA, for Movant. Vincent J. Barbera, Somerset, PA, for Respondent. MEMORANDUM OPINION BERNARD MARKOVITZ, Bankruptcy Judge. Debtor James L. Barber has brou...
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MEMORANDUM OF DECISION Overruling the Trustee’s Objection to Claim On September 6, 2005, Raymond J. Obu-chowski, in his capacity as Chapter 7 trus *329 tee of the bankruptcy estate for Build Tech Systems, Inc. (the “Trustee”) filed an omnibus objection to claims that included an objection to the claim of Blue Cross and Blue Shield of Vermont (“Blue Cross”) on the basis that the asserted...
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MEMORANDUM OF DECISION Denying in Part, and Granting in Part, the Motion of the Reorganized Debtors to Admit The Examiner’s Report into Evidence, as an Expert Opinion The Reorganized Debtors have filed a request for a ruling on the admissibility of the Examiner’s Report in this case. They wish to rely upon it in connection with their objection to the fee application of Chanin Cap...
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MEMORANDUM OF DECISION AND ORDER RE: MOTION TO DISMISS AND OBJECTION THERETO Before the court is that certain Motion To Dismiss (Counts One, Three and Four of the Plaintiffs Complaint) (Adv. P. Doc. I.D. No. 6, the “Motion To Dismiss”) 1 filed by the debtor Michael Charles Picard (the “Debtor”), and that certain Objection to the Motion To Dismiss (Adv. P. Doc. I.D. No. 10, ...
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OPINION Centex Home Equity Company, LLC (“Centex”) appeals a Judgment entered by the United States Bankruptcy Court for *758 the District of Colorado in favor of the Chapter 7 trustee, (“Trustee”) avoiding a transfer made by the debtors to Centex pursuant to 11 U.S.C. § 547(b). For the reasons set forth below, we affirm the decision of the bankruptcy court. I. Background The debtors borro...
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DECISION This matter comes before the court on the motions of defendants Ford Motor Company (“Ford”), Ford Motor Credit Company (“FMCC”), Samuel Goldstein & Co. and Stuart Goldstein to dismiss this adversary proceeding, which was commenced by Alan Nisselson, the co-trustee (“trustee”) of Monahan Ford Corporation of Flushing (“Monahan Ford” or “debtor”). The moving defendant...
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MEMORANDUM OPINION Before the Court is the Motion to Dismiss the above adversary proceeding filed by U.S. Nursing Corporation (“USNC”). *573 The Motion is opposed by Alfred Giuliano, the chapter 7 trustee (the “Trustee”). For the reasons stated below, the Court will grant the Motion in part. I. BACKGROUND On April 2, 2003, the Debtors filed petitions for rel...
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MEMORANDUM OPINION The matter before the Court is the Court’s consideration of confirmation of the Debtor’s proposed chapter 13 plan. The precise issue before the Court is whether a Debtor who failed to carry his burden of showing that this case was filed in good faith under 11 U.S.C. § 362(c)(3) can obtain confirmation of a chapter 13 plan by showing good faith under 11 U.S.C. § 1325(a)(7). As...
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MEMORANDUM OPINION AND ORDER DENYING APPROVAL OF REAFFIRMATION AGREEMENT WITH WELLS FARGO FINANCIAL ACCEPTANCE The reaffirmation agreement between the Debtors and Wells Fargo Financial *901 Acceptance (“Wells Fargo”) filed February 14, 2006 (doc 11) came before the Court for a hearing on March 2, 2006. Mr. Arvin Payton Sr. appeared and spoke for himself and for Ms. Joan Payto...
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MEMORANDUM-OPINION This matter is before the Court on the Motion for Enlargement of Time to File Notice of Removal of State Court Action of WEMA Natural Resources, Inc. (“WEMA”), William McIntosh (“McIntosh”), and Sharon Cooper (“Cooper”) and the Objection of the Debtors Gary R. Thomas and Mary M. Thomas (“Debtors”). The Court reviewed the written submissions of the parties and considered the ar...
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MEMORANDUM OPINION BACKGROUND Daniel Doyle was a State Representative for Oregon, winning election to office in 2000, 2002, and 2004. He resigned from the Oregon Legislature in 2005, however, in light of allegations of campaign finance law violations during the 2004 election cycle. In September 2005, Mr. Doyle and his wife, Victoria Doyle, pled guilty in Circuit Court to felony c...
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339 B.R. 746 (2006) In re Scott B. DUFFUS and Wendy K. Duffus, Debtors. No. 05-75085. United States Bankruptcy Court, D. Oregon. March 8, 2006. *747 James J. Mac Afee, Salem, OR, for Debtors. MEMORANDUM OPINION FRANK R. ALLEY, III, Bankruptcy Judge. The Trustee has filed a motion for an order dismissing this case pursuant to 11 U.S.C. § 521(e)(2)(B). The Court finds that the motion should be den...
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DECISION & ORDER BACKGROUND On October 6, 2005, Ciñóle, Inc. (the “Debtor”) filed a petition initiating a Chapter 11 case. At the time of the filing of its petition, the Debtor alleged that it was the owner of forty-two (42) parcels of real property located in the City of Rochester, Monroe County, New York. The Debtor filed its Chapter 11 petition on October 6, 2005 in order to s...
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MEMORANDUM OF OPINION AND ORDER The matter before the Court is the motion of Jerry and Shelly Moon (the “Debtors”) to extend the automatic stay as to the Debtors pursuant to 11 U.S.C. § 362(c)(3)(B), and for clarification as to the effect of the automatic stay as to their property and as to property of the estate in their bankruptcy case. An objection has been filed by Countrywide Home Loans,...
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MEMORANDUM ON OBJECTION TO CONFIRMATION FILED BY JP MORGAN CHASE BANK, N.A. This contested matter is before the court on the Objection to Confirmation of Plan and Plan Terms Filed by JPMorgan Chase Bank, N.A. (Objection to Confirmation) filed on December 2, 2005, by JPMor-gan Chase Bank, N.A. (Chase), a secured creditor, objecting to confirmation of the Debtors’ Chapter 13 Plan. A pre...
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MEMORANDUM OPINION This matter comes before the court on an adversary complaint filed by plaintiff, Carl Pearson (“Pearson”) against debtor and defendant, George C. Howard, Jr. (“Howard”). The complaint states causes of action for a judgment pursuant to §§ 523(a)(2)(A), (a)(4) and (a)(6) of the Bankruptcy Code (11 U.S.C. §§ 101 et seq.) 1 finding that a judgment entered in the Circuit Court...
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MEMORANDUM OPINION In this adversary proceeding, plaintiff Jonathan Bradley Shadwick (“Debtor”) seeks a determination, pursuant to 11 U.S.C. § 523(a)(8), that his student loan debt, owed to defendants United State Department of Education (“Education”), Keybank USA, N.A. (“Keybank”) and the Curators of the University of Missouri (“Curators”) should be discharged for the reason that excepting t...
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OPINION 1 Before the Court are the applications of General Electric Capital Corporation (“GECC”) for allowance and payment of an administrative expense for damages allegedly sustained to machines it leased to Hayes Lemmerz International, Inc. (“Hayes”). After trial and briefing, the Court will grant the applications in part. I. BACKGROUND On December 5, 20...
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MEMORANDUM OPINION The Salazars filed bankruptcy on November 1, 2005 without first obtaining credit counseling. On November 2, 2005, the Salazars filed a motion seeking an extension of time by which they were required to obtain the credit counseling required by 11 U.S.C. § 109(h). The Court denied this request by order on November 16, 2005 and struck the Salazars’ petition. See ...
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339 B.R. 529 (2006) In re Michael S. O'BRIEN, Debtor. No. 05-30172-RS. United States Bankruptcy Court, D. Massachusetts. March 23, 2006. Richard S. Ravosa, Town and Country Legal Assoc. LLC, Natick, MA, for Debtor. ORDER REGARDING RELIEF FROM STAY SOMMA, Bankruptcy Judge. (Carlin and Crowne) The Debtor's former wife (Paula M. Carlin) ("Carlin") and his former divorce lawyer (Stephen G. Crowne) ...
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ORDER REGARDING LANDLORD’S MOTION TO DISMISS AND/OR FOR RELIEF FROM STAY Before the Court is a motion by the Debtor’s former landlord (“Landlord”) *427seeking (a) dismissal of the within case (“Case”) or (b) alternatively, relief from stay to relet the Debtor’s former premises (“Premises”), to sell the Debtor’s personalty at public auction and to transfer the Debtor’s liquor license (“Motion”). ...
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MEMORANDUM DECISION AND ORDER SUSTAINING CREDITORS’ OBJECTION TO DEBTOR’S CLAIM OF HOMESTEAD EXEMPTION In order to qualify for the Florida homestead exemption, a debtor must be a per *520 manent resident of the state and intend to make the property in question his permanent residence. An alien can satisfy this residency requirement only if he has obtained permanent reside...
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OPINION AND ORDER Before the court is plaintiffs motion for judgment on the pleadings and the debt- or/defendant’s opposition thereto. For the reasons set forth below, the motion for judgment on the pleadings is granted as to Count I of the complaint, rendering judgment on the remaining counts unnecessary. Background Plaintiffs, R-G Financial Corporation, et al. (“R-G”) ...
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MEMORANDUM In Speaker Motor Sales Co. v. Eisen, 393 F.3d 659 (6th Cir.2004), the Sixth Circuit Court of Appeals held that 11 U.S.C. § 726(b)1 mandated the disgorgement of a retainer paid to a chapter 11 debtor’s attorney when necessary to achieve a pro rata distribution among other administrative claimants in a case converted from chapter 11 to chapter 7. Not addressed in that case is the effec...
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MEMORANDUM OPINION Presented by the parties’ cross-motions for summary judgment is the issue of whether the debtors’ tractor, in which the defendant has a purchase money security interest, is consumer goods under Article 9 of the UCC. If it is, the defendant’s security interest is perfected even though the defendant did not file a financing statement. If not, the defendant’s security ...
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Susan Bala (“Claimant”) appeals the bankruptcy court’s 1 order subordinating her administrative expense claim against the bankruptcy estate of Racing Services, Inc. (“RSI”) for post-petition rent. We have jurisdiction over this appeal from the final order of the bankruptcy court. See 28 U.S.C. § 158(b). For the reasons set forth below, we affirm. ISSUES The issue...
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339 B.R. 814 (2006) In re Betty J. LEWIS, Debtor. Barnee C. Baxter, Chapter 13 Trustee, Movant, v. Betty J. Lewis, Respondent. In re Hank William Tobias, Debtor. Barnee C. Baxter, Chapter 13 Trustee, Movant, v. Hank William Tobias, Respondent. Nos. 05-14070, 05-14078. United States Bankruptcy Court, S.D. Georgia, Augusta Division. March 27, 2006. *815 Angela Williams Seymour, James B. Duncan, III...
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DECISION ON MOTION FOR SUMMARY JUDGMENT This matter comes before the Court on the motion of defendant Grace Industries, Inc. (“Grace” or “debtor”) seeking summary judgment dismissing this adversary proceeding. Plaintiff Admiral Insurance Company (“Admiral”) has also moved for summary judgment. For the reasons set forth below, Grace’s motion for summary judgment is granted and Admiral’...
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MEMORANDUM OPINION This opinion is with respect to the defendants Credit Suisse First Boston’s motion to dismiss and motion to compel. Part I discusses the motion to dismiss, while Part II addresses the motion to compel. For the reasons stated below, the Court will deny the motion to dismiss (except as to Count X, which the Court will leave pending), but will grant the motion to compel. ...
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DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT EXCEPTING DEBT FROM DISCHARGE UNDER 11 U.S.C. § 523(a) (I) Plaintiffs James and Mary Artis commenced this adversary proceeding against debtor/defendant Jerry B. West, seeking an order declaring a pre-petition judgment debt owed by West nondischargeable. The complaint alleges that the judgment debt is nondischargeable under 11 U.S...
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ORDER These consolidated matters come before the Court on objections to confirmation filed by certain secured creditors in each of the above Chapter 13 cases. These matters are core proceedings over which the Court has jurisdiction under 28 U.S.C. § 157(b)(2)(L). The creditors’ objections are SUSTAINED, and the cases are continued for Debtors in each case to file a modification of the Chapt...
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MEMORANDUM DECISION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The Chapter 7 Trustee of North American Energy Conservation, Inc., in an effort to create an estate for unsecured creditors, filed this preference action at the expense of one of the Debtor’s long-time electricity trading partners, Avista Energy, Inc. 1 The Trustee seeks to recover $1,698,400 it paid to Av...
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OPINION The bankruptcy court sustained the trustee’s objection under Washington law to the debtor’s claim of an exempt homestead in a residence that the debtor no longer owned and from which he had been removed by a prebankruptcy state-court order. We AFFIRM. FACTS Ronald Wilson, the debtor and appellant herein, commenced a chapter 7 bankruptcy case on October 21, 2004, listing ...
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OPINION Following conversion of a case from Chapter 11 to Chapter 7, the bankruptcy court ordered debtor’s Chapter 11 counsel to disgorge a portion of its pre-petition retainer in order to equalize payments among all chapter 11 administrative claimants pursuant to section 726(b).1 The Chapter 11 counsel appealed. We hold that a professional with a valid prepetition security retainer that has be...
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MEMORANDUM OF DECISION Before this Court are “Plaintiffs’ Motion for Partial Summary Judgment” (the “Plaintiffs’ Summary Judgnent Motion”) and “Defendant Randall Fincke’s Motion for Partial Summary Judgment” (“Fincke’s Summary Judgment Motion”). Resolution of each motion requires this Court to determine whether the Plaintiffs are entitled to a declaration that Access Cardiosystems, In...
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339 B.R. 903 (2006) In re Murphy D. JONES, Debtor. No. 05-40042-R. United States Bankruptcy Court, E.D. Michigan, Southern Division. March 31, 2006. *904 Stephen A. Thomas, Detroit, MI, for Debtor. Opinion and Order Upon Remand STEVEN RHODES, Chief Judge. The debtor's attorney filed a fee application requesting approval of fees of $1,917.85 plus costs of $74.33. In an order entered on May 26, 20...
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OPINION RE TRUSTEE’S AUTHORITY TO SELL HOMESTEAD WITH EQUITY VALUE IN EXCESS OF STATUTORY LIMIT The issue here is whether a trustee must object, within the time specified by Bankruptcy Rule 4003, 1 to the value a debtor provides in schedules for property claimed as exempt, when there is a statu *378 tory limit to the exempt amount. The Court concludes that Rule’s d...
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Memorandum Decision on Application for Compensation filed by Counsel for the Trustee William A. Rinehart (the “Applicant”) filed an application for compensation as attorney for Trustee Douglas Mann (the “Trustee”) in this chapter 7 case. The Applicant was appointed to recover an alleged fraudulent transfer of $12,500 to an Appleton attorney (the “Transferee”). Apparently the Debtor paid t...
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340 B.R. 905 (2006) In re Charles BENN, Jr., Debtor. Charles Benn, Jr., Debtor — Appellant. v. James S. Cole, Trustee — Appellee. In re Steven Mohrhard and Jennifer Mohrhard, Debtors. Steven Mohrhard and Jennifer Mohrhard, Debtors — Appellants, v. James S. Cole, Trustee — Appellee. Nos. 04-6053EM, 04-6054EM. United States Bankruptcy Appellate Panel For the Eighth Circuit. Submitted: March 2, 2006...
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339 B.R. 607 (2006) In re Stuart Elverson WALTERS, Debtor. No. 04-74203. United States Bankruptcy Court, W.D. Virginia, Roanoke Division. March 22, 2006. Darren T. Delafield, Roanoke, VA, for Debtor. George I. Vogel, II, Roanoke, VA, trustee. DECISION AND ORDER ROSS W. KRUMM, Bankruptcy Judge. The matter before the court arises as a result of a claim by the debtor for exemption of proceeds, purs...
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OPINION The issue before the Court is whether a tenant farmer’s payment of his cash rent with a NSF check constitutes a nondis-chargeable debt pursuant to 11 U.S.C. § 523(a)(4). The Debtor, Bradley Hermes, and his family have been farming 700 acres of land owned by the Plaintiff, William Moore, since 1994. The Debtor’s father was the original tenant, but the Debtor has been farming it for the last...
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MEMORANDUM OF DECISION Before the Court is the adversary complaint filed by the State of Texas to determine the dischargeability of a debt arising from a bail bond judgment against a surety. The State contends that its debt may not be subjected to the Defendanb-Debtor’s discharge without its consent due to its rights of sovereign immunity under the Eleventh Amendment or, alternatively...
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ORDER For the reasons set forth in an Opinion entered this day, IT IS HEREBY ORDERED that the Trustee’s objection to Claim # 2 filed by the Illinois Department of Revenue be and is hereby sustained. IT IS FURTHER ORDERED that the Trustee’s objection to Claim # 3 filed by the Illinois Department of Revenue be and is hereby sustained. IT IS FURTHER ORDERED that Claim # 2 and ...
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MEMORANDUM OPINION This matter came on for trial on January 25, 2006, upon the Complaint by Dominion Virginia Power to Determine Non-Dischargeability of Debt Pursuant to § 523 of the Bankruptcy Code. At the conclusion of the trial, the Court took this matter under advisement. The Court has jurisdiction over these proceedings pursuant to 28 U.S.C. §§ 157(b)(2) and 1334(b). Venue is proper ...
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MEMORANDUM OPINION This matter came on for trial on November 1, 2005, upon the Complaint by Debtor to Determine Dischargeability of Educational Loans under § 523(a)(8) of the Bankruptcy Code. At the conclusion of the trial, the Court took this matter under advisement. The Court has jurisdiction over these proceedings pursuant to 28 U.S.C. §§ 157(b)(2) and 1334(b). Venue is proper pursuant...
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MEMORANDUM OPINION Plaintiff, the Debtor, filed this adversary proceeding seeking damages, sanctions and attorneys fees for violation of 11 U.S.C. § 362. Cash America seeks dismissal of this adversary proceeding, or in the alternative, summary judgment. Cash America’s requested relief is principally based on the legal premise that its conduct was not governed by the automatic stay. On...
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MEMORANDUM OF DECISION Before the Court is the Motion for Summary Judgment (the “Motion”) filed by Defendants Gig Drewery, Trina Drewery, Crimson Hill, L.P., Hydro-Action Distributing, Inc., Ponderosa Development, L.P., Ponderosa Management, Inc., Aqua Partners, Ltd., and Aqua Drip Innovations, Inc. (hereafter cumulatively referred to as the “Drewery Defendants”). Based upon the Court...
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MEMORANDUM DECISION ON OBJECTION BY CHAPTER 7 TRUSTEE TO DEBTOR’S CLAIM OF EXEMPTION Debtor filed this Chapter 7 case on October 11, 2005 and claimed as exempt her interest in a “Fidelity Destiny 10-0” account, The Chapter 7 Trustee has objected to the exemption. For the reasons set forth below, the Chapter 7 Trustee’s objection is sustained. Jurisdiction This Court has ...
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MEMORANDUM OPINION DENYING DEBTOR’S MOTION FOR DISAL-LOWANCE OF CLAIM AND MOTION FOR DETERMINATION THAT THIS IS A NON CORE PROCEEDING AND OVERRULING DEBTOR’S OBJECTION TO CLAIM NO. 36 FILED BY KATIE ZENO-VICH This case came on for hearing on January 24, 2006, to consider the Debtor’s Mo*105tion for Disallowance of Claim No. 361 filed by Katie Zenovich (Doc. No. 154), the Debtor’s Objection to t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On November 8, 2004 Gerald Lenard Greene (“Defendant”) filed for Chapter 7 bankruptcy relief. On February 9, 2005 Ricky J. Johnson and Brenda J. Johnson (“Plaintiffs”) filed a Complaint seeking a denial of Defendant’s discharge pursuant to 11 U.S.C. §§ 727(a)(2) (count I), 727(a)(3) (count II), 727(a)(4) (count III) or in the alternative to have...
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MEMORANDUM OPINION DENYING CREDITOR, KAREN HOYO’S, MOTION FOR RELIEF FROM STAY This case came on for hearing on January 10, 2006, on the Motion for Relief from Stay (the “Motion”) (Doc. No. 9), filed by Karen Hoyo, the debtor’s soon to be ex-wife. The issue is whether the debtor or his bankruptcy estate retained any interest in property to be conveyed to Ms. Hoyo via a marital settlement agreeme...
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MEMORANDUM OPINION DENYING MOTION FOR AUTHORITY TO KEEP 2001 INCOME TAX REFUND In 2005, Husam Zayed, the Chapter 13 debtor, received a refund associated with his 2004 federal income tax return in the amount of $3,197.72. In his Motion for Authority to Keep 2004 Income Tax Refund (Doc. No. 32), the debtor now asks to keep these funds contrary to the requirement contained in the Order Confirming C...
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MEMORANDUM OPINION This adversary proceeding came on for trial on January 12, 2006, upon the Complaint filed by the debtor, Kevin Charles Mellor, seeking to determine that attorney fees and costs incurred in connection with his divorce from the defendant, his former wife, Sheri D. Washuta, are dischargeable under Section 523(a)(5) of the Bankruptcy Code. 1 Pursuant to an ea...
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ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DISMISSING CASE THIS CASE came on for consideration of the Debtor’s motion for reconsideration of this Court’s order dismissing his Chapter 13 case for various filing deficiencies and for failure to attend the scheduled meeting of his creditors. The Debtor has requested that the Court reconsider the order dismissing his case and permit him an en...
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MEMORANDUM OPINION This matter comes before the Court on Bank of Dawson’s objection to confirmation of Debtor’s Chapter 13 plan. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(L). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in conformance with Federal Rule of Bankru...
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MEMORANDUM OF DECISION Now before the Court in the above-referenced adversary proceeding is the “Debtor’s Complaint for Violation of the Automatic Stay, to Enforce an Order of the Court, for an Injunction, and to Recover Damages, Costs and Attorneys’ Fees” filed by Kelly Marie Mooney (“Mooney” or the “Debtor”). At trial the Debtor voluntarily dismissed portions of her complaint, and th...
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OPINION This matter comes before the court upon the Debtor’s Motion for Order Allowing Additional Fifteen Days to File Credit Counseling Certification. The court bases its decision on the Motions filed by both parties and the cases cited therein, as well as the oral arguments. On December 14, 2005, Gemma Burrell (“Debtor”) filed bankruptcy pursuant to Chapter 13 of the Bankruptcy Abuse Preven...
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*380 REASONS FOR DECISION On November 12, 2005, Billy D. McCol-lum, (“Debtor”) filed a Motion For Permission To Sell Property Of Estate (“Motion”). The Motion requests authority to sell Debtor’s home for $37,000.00. Since the property is unencumbered, Debtor is asserting the homestead exemption over the first $25,000.00 in net proceeds from the sale. Debtor proposes to pay th...
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MEMORANDUM OPINION Whitney National Bank (“Whitney”) moved for approval of post-petition attorneys’ fees and costs1 of $352,888.002 and $112,639.52, respectively. Debtor Barnett Marine objected3 on the following grounds: (1) the inapplicability of 11 U.S.C. § 506(b) to post-confirmation fees and costs; (2) res judicata; and (3) dupli-cative and excessive charges. I. FACTS The debtor and Whitney e...
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MEMORANDUM OPINION Elvin Martinez filed a petition for relief under Chapter 7 of the United States Bankruptcy Code on August 8, 2004. 1 On November 4, 2002, this Court granted Mr. Martinez a discharge and closed the case. On October 3, 2003, this Court granted Mr. Martinez’s ex parte motion to reopen his bankruptcy ease, and he filed this adversary proceeding seeking to have the court...
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MEMORANDUM OPINION Plaintiffs John and Lisa Killough sued to establish nondischargeable claims against debtors Waybrun Hebert III and Shelena Hebert. The claims arise out of an employment agreement under which John Killough went to work for Waybrun Hebert’s professional corporation in September 1998. The plaintiffs did not establish that any obligation owed them was nondischargeable under 11 U.S....
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Trustee’s motion for a determination that the personal property identified on Debt- or’s Schedules B and D filed with the Bankruptcy Court is of consequential value or benefit to the bankruptcy estate. A hearing having been held on March 8, 2006, the Court makes the following findings of fact and conclusions of law. ...
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OPINION The issue before the Court is the valuation of two vehicles — a 2003 Ford F150 Flareside Supercab XLT pickup and a *187 2002 Ford Explorer Limited V6 — for purposes of cramdown in a Chapter 13 plan. Cramdown is the bankruptcy procedure which allows a debtor to keep collateral and pay the present value of the allowed secured claim over the life of the plan. 1 11 U.S.C. § 506(a); § 13...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Proceeding is before the Court upon the Complaint filed by Ferguson Enterprises, Inc. seeking Denial of Discharge and Exception to Discharge. After a hearing held on October 27, 2005, the Court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. On December 7, 2004, Defendant filed a petition for relief under Chapter 7 o...
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MEMORANDUM DECISION At issue is whether postpetition interest will continue to accrue on a judgment creditor’s liens to the extent they are unavoidable under 11 U.S.C. § 522(f)(1)(A). This Court has jurisdiction to determine this matter pursuant to 28 U.S.C. §§ 1334 and 157(b)(1) and General Order No. 312-D of the United States District Court for the Southern District of California. ...
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MEMORANDUM OPINION RE: MOTION TO DISMISS COMPLAINT This matter comes before the Court on the defendants’ joint motion to dismiss the complaint [docket # 16], plaintiff-trustee’s response brief [docket # 17] and defendants’ joint surreply to plaintiff-trustee’s response [docket # 18, exhibit 1]. This proceeding arises in a case referred to this Court by the Standing Order of Reference ente...
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OPINION RE: U.S. TRUSTEE’S MOTION TO DISMISS PURSUANT TO 11 U.S.C. § 707(b) The United States Trustee (“UST”) filed a motion to dismiss Mr. and Ms. Marses’ Chapter 7 bankruptcy proceeding pursuant to 11 U.S.C. § 707(b). 1 An evidentiary hearing was held on February 8, 2006. 2 I *846 took the matter under advisement after closing arguments. FACTUAL BACKGROUND Donald and Karen Mars ...
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OPINION 1 INTRODUCTION Exide Technologies, Inc. and its affiliated debtors, as debtors and debtors in possession in the above-captioned matter (collectively “Exide”), seek approval from this Court to reject certain agreements entered into with EnerSys, Inc. (“EnerSys”). 2 EnerSys vigorously opposes Exide’s decision to reject, contending that the agreements are not ...
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*63 MEMORANDUM OPINION I. INTRODUCTION Before me is the Debtor’s Motion for Sanctions against General Motors Acceptance Corporation (“the Motion”). The Debtor seeks monetary sanctions against General Motors Acceptance Corporation (“GMAC”) for its alleged willful violation of the discharge injunction. I held a hearing and received testimony on this matter on March 1, 2006. For the reasons st...
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MEMORANDUM OPINION I. INTRODUCTION In this chapter 7 bankruptcy case, Northeastern Title Loans, LLC (“NTL”), has requested relief from the automatic stay in order to exercise its rights as a lienholder against an automobile owned by the Debtor, Vanessa Giles (“the Debtor”). The Debtor has responded by requesting avoidance of NTL’s lien as impairing her exemption in a “too...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER TRIAL I. INTRODUCTION Creditor Comcast of Los Angeles, Inc. (“Comcast”) seeks a determination that its claim for statutory damages resulting from Debtor Jose Sandoval’s alleged violations of anti-piracy and anti-signal theft laws under California Penal Code § 593d is a nondischargeable debt under § 523.1 Sandoval, a subscriber to Comcast’s basic cable...
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MEMORANDUM OPINION This matter comes before the Court on the complaint filed by Elizabeth Clark (the “Debtor”) which seeks a finding that the debt owed by her to the United States Department of Education (“Education”) is dischargeable pursuant to 11 U.S.C. § 523(a)(8). For the reasons set forth herein, the Court finds that the debt is not dischargeable under the § 523(a)(8) “undue har...
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OPINION DENYING DEFENDANTS’ MOTION 1 TO DISMISS SECOND CAUSE OF ACTION REGARDING DISALLOWANCE OF CLAIMS HELD BY DEFENDANTS The matter before the Court concerns claims asserted against a bankruptcy estate that arose out of certain bank loans. The bank, that was the original holder of the bank-loan claims in issue, is alleged to have received avoidable transfers in unrelated tran...
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OPINION AND ORDER The Chapter 7 Trustee seeks Summary Judgment to recover $12,000 transferred by the Debtor to his sister on the eve of filing. The Debtor and his sister assert that the $12,000 was her share of an inheritance. The facts are not in dispute. Judgment will enter in favor of the Trustee. FACTS AND DISCUSSION This is the third in a line of written decisions in which this writer add...
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MEMORANDUM OF OPINION This is a further chapter in a dispute between an Argentine cable company and holders of notes that the company issued in the United States. So far, the dispute has engendered multiple decisions and appeals in the Republic of Argentina, two decisions from this Court, one decision from the United States District Court for the Southern District of New York, and prospec...
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OPINION DENYING MOTION FOR SETOFF The Greater Orlando Aviation Authority (“GOAA”) has brought this motion for relief from the automatic stay in order to set off under 11 U.S.C. § 553 certain credits in favor of Delta Air Lines, Inc. and its subsidiaries (collectively, the “Debtors” or “Delta”) against rejection damages under 11 U.S.C. §§ 365(g) and 502(g) stemming from a lease with GO...
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DECISION & ORDER To avoid controversy for an improper distribution of funds, stakeholders will often issue checks made payable jointly to all potential claimants. But this shorthand solution may have other implications. In the present dispute, an auctioneer distributed the proceeds of sale by means of a check made payable jointly to the owner and to a party claiming to hold a security...
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MEMORANDUM OPINION This matter is before the court on the Trustee’s Motion for Summary Judgment. She states that she seeks to avoid a transfer by the Debtors to the Defendant pursuant to Bankruptcy Code section 547. Section 547 deals with preferential transfers for the benefit of creditors, however, and the court will treat the action as one under section 548, as a fraudulent conveyan...
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MEMORANDUM OPINION This Chapter 11 case is before the Court on an adversary proceeding brought by National Steel Creditor Trust to avoid, as preferences, pre-petition payments made by debtor National Steel Company to BSI Alloys, Inc. The defendant answered the complaint and asserted two affirmative defenses to the claims: a new value defense under 11 U.S.C. § 547(c)(4) and an ordinary course de...
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MEMORANDUM OF DECISION REGARDING OBJECTIONS TO EXEMPTION I. Introduction The matters before the Court are two objections to the state homestead exemption which Mary G. Larson (the “Debtor”) claimed in her residence. The creditors and Chapter 7 trustee contend that the homestead claim must be reduced based upon the newly enacted 11 U.S.C. § 522(q)(1)(B)(iv). That statute caps a state homeste...
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MEMORANDUM OF DECISION The debtors’ complaint against General Motors Acceptance Corporation (GMAC) is before me for decision on a stipulated record. The complaint asserts that GMAC violated the automatic stay of 11 U.S.C. § 362(a) 1 and the co-debtor stay of § 1301(a) by refusing to release its lien on a 1994 Plymouth Voyager automobile co-owned by Jacqueline Brooks and her...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Objection filed by Karl S. Drown (“Drown” or the “Debtor”) to a proof of claim filed in his Chapter 13 case. Raymond Hebert (“Hebert”) timely filed the proof of claim in which he represented that the Debtor owes him the sum of $258,750 stemming from a failed development of property known as Lot 1, Smith Street, Dighton, Ma...
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AMENDED ORDER GRANTING THE UNITED STATES OF AMERICA’S MOTION TO DISMISS SECOND AMENDED COMPLAINT THIS MATTER came before the Court upon the United States of America’s (the “United States”) Motion to Dismiss Second Amended Complaint (the “Motion”) filed on behalf of the Internal Revenue Service (the “IRS”) and John W. Wood, Jr.’s (“Debtor” or “Plaintiff’) Response thereto (the “Response”). On ...
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OPINION DENYING MOTION OF DEFENDANT ART LEATHER, INC. FOR SUMMARY JUDGMENT This is a preference case in which the Chapter 7 Trustee seeks to avoid and recover from Defendant Art Leather, Inc. (“Art Leather”) six pre-petition payments that the Debtor, Connolly North America, LLC, made to GE Capital Commercial Finance, Inc. (“GE Capital”). While the payments were made to GE Capital, alleged...
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MEMORANDUM OPINION This opinion is with respect to the parties’ cross-motions for summary judgment. The plaintiff AZ Automotive Corporation’s (“AZ”) motion (Adv.Doc. # 92) seeks partial summary judgment on Counts I and IV of its adversary complaint against the defendants Atzen Industries, Inc. (“Aet-na”), Trianon Industries Corporation (“Trianon”), and Zenat Corporation (“Zenith”). The de...
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ORDER Before the Court is the objection to the claim of Silver Lake Enterprises, LLC. (hereinafter “Silver Lake”), filed by Cliftondale Oaks, LLC (hereinafter the “Debt- or”). This matter is a core proceeding, over which this Court has subject matter jurisdiction. See 28 U.S.C. § 157(b)(2)(B); § 1334. Findings of Fact 1. The Debtor is a limited liability company, ...
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MEMORANDUM DECISION DISMISSING THE DEBTOR’S CHAPTER 7 CASE FOR FAILURE TO COMPLY WITH 11 U.S.C. § 109(h) Before the Court is the motion of the United States Trustee, dated December 6, 2005, to dismiss the petition of the above-captioned debtor, Charles Edward Seaman (the “Petitioner”) for failure to file payment advices pursuant to Section 521(a)(1) of Title 11 of the United States Code (...
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OPINION DENYING DEBTORS’ OBJECTION TO TELESERVE SYSTEMS, INC.’S PROOF OF CLAIM NO. 9449 Teleserve Systems, Inc., (“TSI”) filed a proof of claim based on an arbitration award. The Debtors (interchangeably “MCI,” ‘WorldCom” or “the Debtors”) object and request the Court to reduce the award, arguing that the arbitrators miscalculated it. A federal court’s review of an arbitral award is “high...
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OPINION The issue before the Court is whether the Bankruptcy Court has the authority to order a corporation in which the Debtor owns stock to turn over to the Debtor’s bankruptcy trustee all or a portion of the corporate assets. The Debtor, Gary Billingsley, owns 500 shares of Excel Energy Co. (“Excel”) stock. The Debtor’s ex-wife, Patricia Mo-nyok, owns the other 500 outstanding sha...
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MEMORANDUM OPINION This case came before the court on March 14, 2006, for a hearing on the confirmation of the Debtor’s proposed plan of reorganization and for a hearing on the Chapter 13 Trustee’s objection to confirmation. 1 Stephen D. Ling appeared on behalf of the Debtor and Jennifer R. Harris appeared on behalf of the Trustee, Anita Jo Kinlaw Troxler. For the reasons that follow, the c...
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEBTORS’ MOTION TO DECLARE CHILD TAX CREDIT A NON-ASSET OF THE ESTATE The court having reviewed the entire record herein, including argument made at the hearing on December 22, 2005, and being sufficiently advised hereby orders debtors’ motion to declare child tax credit a non-asset of the estate is granted in part and overrule...
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ORDER AVOIDING LIEN This case comes before the Court on Plaintiffs Complaint seeking avoidance of Defendant’s lien in Debtor’s 2004 Chevrolet Silverado pickup truck, VIN# GCHK29G64E379345 [the “Vehicle”]. The Complaint alleges that the Defendant’s lien on the Vehicle is avoidable as a preferential transfer under 11 U.S.C. § 547. I.PROCEDURAL BACKGROUND This matter went to trial on August 31, ...
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*609 MEMORANDUM OPINION ON DEBTOR’S MOTION TO VACATE ANNULMENT OF THE AUTOMATIC STAY On October 15, 2005, Neil Snowden (“Snowden” or “Debtor”) filed this bankruptcy case under Chapter 13 of the Bankruptcy Code (“Code”), Title 11. An Order was entered on November 28, 2005 granting Litton Loan Servicing, Inc.’s (“Litton Loan”) Motion to Annul the Automatic Stay with respect to ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Adversary Proceeding relates to the Chapter 7 bankruptcy case of Nicholas and Kathryn Tanglis (“Debtors” or “Defendants”). David P. Leibowitz, Chapter 7 Trustee (the “Trustee”) filed this Adversary Complaint objecting to Debtors discharge under 11 U.S.C. § 727. The Trustee contends that Debtors failed to maintain and produce necessary docum...
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MEMORANDUM OPINION DENYING DEFAULT JUDGMENT This Adversary relates to the bankruptcy case of Brano Zecevic (“Debtor” or “Defendant”). Attorneys’ Title Insurance Fund, Inc. (“Plaintiff’ or “Attorneys’ Title”) brought the instant Adversary proceeding objecting to dischargeability of Plaintiffs debt to it under the fraud exception 11 U.S.C. § 523(a)(2)(A). The Plaintiff stands in the sho...
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MEMORANDUM-OPINION This matter came before the Court for trial on the Complaint of Plaintiff County of Simpson (“County”) against Defendant/Debtor Joseph V. Palma (“Debtor”) to have a debt owed by Debtor to the County declared nondischargeable. Based upon the evidence presented at trial, the written submissions of the parties and the arguments of counsel, the Court finds the debt in the amoun...
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OPINION REGARDING THE RECENTLY ADOPTED MICHIGAN TENANCY BY THE ENTIRETY STATUTES I. ISSUE Recently, the State of Michigan codified the exempt status of property held as a tenancy by the entirety. Mich. Comp. Laws § 600.5451(l)(o). A reported decision by another bankruptcy judge in this district has declared this new statutory entireties exemption unconstitutional. The iss...
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MEMORANDUM AND ORDER DENYING THE MOTION OF THE UNITED STATES DEPARTMENT OF EDUCATION TO SET ASIDE THE COURT’S ORDER GRANTING DEBTOR’S OBJECTION TO CLAIM On February 17, 2006, came on for oral argument the motion of the United States Department of Education to set aside the Court’s order filed October 23, 2000 (hereafter Order), granting the Debtor’s objection to the Department of Educatio...
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OPINION 1 Before the Court is a complaint (the “Complaint”) filed by the plaintiff/debtor, *271 Fidelity Bond and Mortgage Company (the “Debtor”), on March 27, 2000 against defendants Steven D. Brand, James M. Dougherty, Arthur L. Powell, Trustee under Indenture of Trust of Lea R. Powell dated July 19, 1993, Richard S. Powell, Jon R. Powell, Carol P. Heller, Na...
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*753 MEMORANDUM OPINION I. INTRODUCTION Debtor Gloria Gordon-Brown (“the Debtor”) has filed an objection to the amended proof of claim filed by Chase Manhattan (“Chase”). Chase filed the claim as a secured claim in its capacity as servicer of the mortgage on the Debtor’s residential real estate held by Deutsche Bank National Trust Co., as custodian or trustee, f/...
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MEMORANDUM OPINION FOLLOWING TRIAL ON PLAINTIFF’S COMPLAINT AND OBIECTION TO CLAIM In this adversary proceeding, the Unencumbered Assets Trust (successor in interest to the Debtors — National Century Financial Enterprises, Inc. and its related entities) brought suit against Biomar Technologies, Inc. to avoid and recover alleged fraudulent transfers. 1 Following a trial on P...
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MEMORANDUM OF DECISION Before this Court is a “Motion for Stay Pending Appeal” (the “Stay Motion”) filed by Randall Fincke (“Fincke”), the Defendant in an adversary proceeding presently *658 pending before this Court. In conjunction with the Stay Motion, Fincke has also moved to file one of the supporting exhibits under seal (the “Motion to File Papers Under Seal”). The r...
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MEMORANDUM OF DECISION I. The question for decision in this proceeding is whether the court should grant the Chapter 7 trustee’s “Motion to Approve Settlement,” originally filed on January 7, 2005, and renewed by a pleading filed on December 11, 2005 (together “the settlement motion”). Marguerite Reeves (“Reeves”), a creditor and the debtor’s former wife, appeared and filed an objection to the ...
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This is an appeal from an Order of the Bankruptcy Court 1 entered January 20, 2006, in which the Court dismissed the Debtors’ Chapter 11 bankruptcy case for failure to comply with 11 U.S.C. § 109(h). We affirm. *297 On January 20, 2006, Debtors Kevin Mark Hedquist and Terri Lynne Hedquist, pro se, filed a joint voluntary Chapter 11 bankruptcy petition. Along with their Petition, they file...
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OPINION 1 Before the Court is the Motion of Stan-field Capital Partners, LLC for Entry of an Order Disqualifying Milbank, Tweed, Hadley & McCloy as Counsel to the Informal Committee of First Lien Lenders Pursuant to Rule 1.7 of the Delaware Lawyers’ Rules of Professional Conduct. For the reasons set forth below, the Court will grant the relief requested. I. BACKGROUND Stanfield Capital Partne...
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MEMORANDUM OPINION 1 Before the Court is the motion for partial summary judgment filed by Michael G. Syracuse (“Syracuse”) seeking a determination that he has title to certain surplus materials located at the former facility of Orion Refining Corporation (the “Debtor”) in Norco, Louisiana. The Debtor filed a cross-motion for partial summary judgment asserting that title to ...
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MEMORANDUM OF DECISION I. Raymond R. Richardson (“the debtor”) and Virginia M. Richardson (together “the debtors”) filed a Chapter 7 bankruptcy petition on May 27, 2004, and Thomas C. Boscarino (“the trustee”) was appointed trustee of the debtors’ estate. Scott Werner (“the plaintiff’), on August 19, 2004, filed a complaint against the debtors, requesting that they be denied a discharge pursuant...
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OPINION Debtor/Defendant/Appellant Shea Thomas Sweeney, (“Debtor”), appeals an order of the bankruptcy court for the District of Colorado concluding that a restitution debt awarded in juvenile delinquency proceedings was nondischargeable under *37 11 U.S.C. § 1328(a)(3). 1 The Debtor argues that the bankruptcy court erred in finding the debt nondischargeable becaus...
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MEMORANDUM DECISION This Chapter 13 case came before the Court on April 5, 2006, upon the Debtor’s “Motion for Extension/Continuation of the Automatic Stay.” (Doc. 18). The Debtor was present by counsel Rafael Gill III, and the Chapter 13 Trustee was present by counsel Sabrina McKinney. No other parties appeared. For the reasons set forth below, the motion is DENIED. I. FACTS The Debtor...
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MEMORANDUM DECISION Heather Montoya (Debtor) 1 proposes a Chapter 13 plan in which she seeks to pay for a 1997 Mercury Tracer (Tracer) that she purchased within 910 days of filing her petition by bifurcating the secured claim under 11 U.S.C. § 506(a)(1), 2 paying the secured value of the Tracer in full, and paying only a small percentage of the unsecured balance. Alt...
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ORDER DENYING MOTION FOR SANCTIONS, PURSUANT TO RULE 9011(e), FILED BY SECURED CREDITOR SILVER FIDELITY TRUST, LLC THIS CAUSE came on to be heard on August 13, 2005 upon the Motion for Sanctions, Pursuant to Rule 9011(c) (“Motion for Sanctions”) (C.P. 22) filed by Silver Fidelity Trust, LLC. On September 13, 2005, McDonald Hopkins, Co., P.A., filed a Memorandum of Law in Opposition to Credito...
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OPINION On consideration before the court is a motion for summary judgment filed by the plaintiff, Rain Bird Corporation, (“Rain Bird”), and a motion for partial summary judgment filed by the defendant/debtor, Robert A. Milton, (“Milton”); responses thereto and memoranda of law having been filed by the opposing parties; and the court, having heard and considered same, hereby finds as ...
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Memorandum Decision on Objection to Exemptions and Objection to Confirmation of the Plan This case explores the often fuzzy line between permissible pre-bankruptcy plan *626 ning and the disposition of assets with the intent to hinder, delay or defraud creditors. The Debtors filed a chapter 7 bankruptcy petition on November 10, 2004. The chapter 7 Trustee and two creditors— Nutrition Service ...
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*701 MEMORANDUM OPINION AND ORDER This matter came before the court on the Motion for Summary Judgment filed by defendant American General Financial Services of America, Inc. and the Objection to the Motion filed by plaintiff Roy M. Terry, Jr., the trustee in debtors’ chapter 7 case. Arguments were heard on the motion at hearing held January 11, 2006, and the court took the motion under adviseme...
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ORDER This matter comes before the Court on Complaint of W. Clarkson McDow, Jr. (“Trustee”), seeking to deny Mary Capers (“Debtor”) a discharge in her current bankruptcy case pursuant to 11 U.S.C. § 1328(f)(1). Trustee has the authority to bring this action pursuant to his statutory authority as set forth at 28 U.S.C. § 586. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(J). ...
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In this chapter 7 proceeding, the case trustee seeks a turnover of one-half of the funds that were on deposit in a joint bank account under the names of the debtor and his father. In response, the father con*711tends that he established the account in joint name for purposes of convenience only, and that he should be deemed to hold exclusive ownership of the funds on deposit. Thomas A. Carella fil...
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MEMORANDUM OPINION The sole issue now before the Court in this Chapter 7 case is whether the Debtor, a woman who lives with her same-sex partner and her partner’s two children, may claim the “head of household” exemption provided in Mo.Rev.Stat. § 513.440. The statute provides that a person must be the head of a “family” to claim the exemption, and Norman E. Rouse, the Trustee (“Trustee”), ha...
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OPINION The chapter 7 trustee, Maureen Gau-ghan, appeals a final order of the bankruptcy court, entered April 11, 2005, which effectively denied her motion to compel the turnover of certain homestead funds claimed exempt by debtors, Frederick Edward and Cheryl Lynn Smith (collectively, “Debtors”). The trustee timely filed a notice of appeal on April 20, 2005. We REVERSE. I. FACTS The facts are und...
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OPINION I. INTRODUCTION In this appeal, we examine the standard of “good faith” as it relates to the preparation of bankruptcy schedules and its application to the determination of chapter 13 *911 eligibility under 11 U.S.C. § 109(e). 2 Appellant, Teresa A. Guastella (“Guastella”), appeals the bankruptcy court’s orders dismissing her chapter 13 case for lack o...
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ORDER ON MÍOTION TO VALUE SECURED CLAIM This matter comes before the Court upon the hearing on a Motion to Value *555 Secured Claim under 11 U.S.C. §§ 506(a) & (d) (“Motion”) that was filed by Hotel Associates, LLC (“Debtor”). In the Motion, Debtor seeks to value the secured claim held by LaSalle Bank National Association, Trustee for the Certificate holders of Mor...
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ORDER AVOIDING LIEN This case comes before the Court on Plaintiffs Amended Complaint. This mat*880ter was tried to the Court on September 26, 2005. The Court has reviewed its file in the bankruptcy case; the pleadings in this adversary case; and the evidence submitted at trial. It has considered the arguments advanced by counsel and is ready to rule. On October 26, 2005, this Court issued its Or...
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MEMORANDUM OPINION The Court has before it the “Motion of Chapter 7 Trustee for Dismissal of Case” to which the Debtor has filed an objection. The Trustee seeks dismissal because of the Debtor’s alleged non-compliance with 11 U.S.C. § 521, as revised by BAPCPA. 1 Jurisdiction This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and...
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MEMORANDUM OPINION Secured creditor CWCapital Asset Management LLC (the “Movant”) filed a motion seeking a determination that the bankruptcy case of AMI-Burlington, Inc. (the “Debtor”) is a “single asset real estate” case as defined by section lOllSIB). 1 The Debtor filed an objection, to which the Movant replied. The Court held a hearing on February 7, 2006. Jurisdiction This Court h...
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MEMORANDUM OPINION The Plaintiffs’ amended complaint alleges fourteen counts against nine defendants (and a tenth subsequently added). Presently before the Court is the Plaintiffs’ motion for summary judgment on Count VII, which is a fraudulent transfer claim against defendant Gordon Properties, Ltd. (“Gordon”). Gordon objected and upped the ante with a cross-motion for summary judgme...
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DECISION AND ORDER The matter before the court is SunTrust Bank’s motion for relief from the § 362 automatic stay. The Court conducted a hearing on the motion for relief on October 5, 2005. Following the conclusion of the hearing, the court ordered the parties to submit any additional authority in support of their positions by October 31, 2005. *377The debtors did not provide additional authority ...
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*714 MEMORANDUM OF OPINION DENYING THE PETITIONING CREDITORS’ MOTION FOR SUPPLEMENTAL ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES FOR PROFESSIONAL SERVICES RENDERED Before the Court is a motion, pursuant to 11 U.S.C. §§ 503(b)(3)(A) and 503(b)(4), for supplemental allowance of compensation and reimbursement of expenses for professional services filed by petitioning cr...
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MEMORANDUM OF OPINION Before the Court is a motion by the Chapter 7 debtor, Syrria Adomah (the “Debtor”), for an order imposing damages on Bank of America for an alleged violation of the automatic stay of § 362 of the Bankruptcy Code, 11 U.S.C. § 362. Bank of America defends on the grounds that (i) the Debtor does not have standing to bring this motion; (ii) even if the Debtor did have st...
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OPINION This matter comes before the court upon the Trustee’s Objection to Claim No. 473. In making its decision the court has relied upon all pleadings filed by the parties, oral arguments, all evidence and testimony properly admitted, and the Affidavit of Daniel Broucek. In the early 1990s Daniel Broucek (“Broucek”) became involved in the electronic discount card business. After pouring the maj...
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DECISION The debtors in this chapter 13 case filed their proposed plan on October 14, 2005. By an order issued November 7, 2005, the *375court ordered that any objections to confirmation had to be filed by December 13, 2005. DaimlerChrysler, acting through its counsel Dennis Ostrowski, filed a timely objection to confirmation on November 22, 2005. Other timely objections were filed by the truste...
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339 B.R. 689 (2006) In re Sharon Anne COFFEY, Debtor. No. 05-60119. United States Bankruptcy Court, N.D. Indiana, Hammond Division. March 27, 2006. *690 Margo R. Babineaux, Meinzer & Babineaux, St. John, IN, for Sharon Anne Coffey. Stacia L. Yoon, Kopko, Genetos & Retson, LLP, Merrillville, IN, for Chapter 7 Trustee. MEMORANDUM OF DECISION AND ORDER J. PHILIP KLINGEBERGER, Judge Bankrupt...
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DECISION ON ORDER TO SHOW CAUSE On February 13, 2006, the court was scheduled to hold a trial of the issues raised by a motion for relief from stay filed on behalf of JP Morgan Chase Bank and the trustee’s objection thereto. The debtors appeared for this trial both in person and through their counsel, Frederick Wehrwein, as did the trustee, Yvette Eleven, and her counsel, Douglas Adel...
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OPINION This is an appeal by Compass Bank (“Compass” or “Bank”) 2 from the order confirming the Chapter 11 plan of Debtor, Investment Company of the Southwest, Inc. (“ICS”) (the “Confirmation Order”). Debtor is a real estate developer owning both developed and undeveloped properties primarily in New Mexico. Compass was Debtor’s primary lender, and it contends that the bankruptc...
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MEMORANDUM OPINION The chapter 7 trustee objects to the unsecured claim of creditor B-Line, LLC (“B-Line”) for debtor’s obligation on a credit card account, on the basis that insufficient documentation is attached to the proof of claim. B-Line responds that insufficient documentation of a claim is not a basis under 11 U.S.C. § 502 for disallowance of the claim. After receiving legal memoranda...
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MEMORANDUM OPINION These matters come before the Court on the cross-motions of plaintiff Richard J. Mason (the “Trustee”) and defendant Heller Financial Leasing, Inc. (“Heller”) for summary judgment pursuant to Federal Rule of Bankruptcy Procedure 7056 and Federal Rule of Civil Procedure 56 on the Trustee’s complaint 1 seeking a declaration as to the nature of three contrac...
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MEMORANDUM OPINION Janiford Winsborough (“Debtor”) filed a complaint seeking a determination that her student loan debt should be excepted from discharge pursuant to 11 U.S.C. § 523(a)(8) on the ground that repayment of such debt would impose upon her an undue hardship, which allegations defendant United States Department of Education (“Defendant”) denied. This is a core proceeding un...
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MEMORANDUM OPINION Security Bank, Idalou, Texas, plaintiff, filed this adversary proceeding seeking the Court’s determination, under section 523(a)(2)(A) and (B) of the Bankruptcy Code, that the debt owed to the bank by Monica Rodriguez, defendant and debtor, should be declared nondischargeable. Trial was held on February 22, 2006, and March 22, 2006. The Court has jurisdiction over this matter ...
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MEMORANDUM OPINION This case is back before the Court on remand from the United States District Court for the Middle District of Georgia by Order of the Honorable W. Louis Sands, Chief Judge. The case has been remanded to this Court for the sole purpose of determining the following two issues: (1) Whether Ayres Aviation Holdings, Inc. properly raised the legal issue of whether it was a “buyer i...
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MEMORANDUM OPINION The matter before the Court in this case is the objection by the Trustee to the claim by debtor Shawn Marie Seeley (“Debtor”) of a homestead exemption in property located in Freeman, Missouri. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334(b) and 157(a) and (b). This is a core proceeding which the Court may hear and determine pursuant to 28 U.S.C. § ...
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MEMORANDUM OPINION On March 21, 2006, hearing was held on the chapter 7 trustee’s objection to claim of Security Bank, Idalou, Texas, and the trustee’s application to approve sale nunc pro tunc. Both matters were consolidated for hearing, along with the continued trial of Security Bank’s complaint objecting to dischargeability of the debtor’s debt to the bank. On April 10, 2006, the C...
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MEMORANDUM DECISION I. INTRODUCTION Priscilla Montoya (“Debtor”) has filed this motion to continue the automatic stay as to all creditors beyond the 30th day after the filing of this bankruptcy case pursuant to 11 U.S.C. § 362(e)(3)(B)(“Mo-tion”). 1 Although the Motion is unopposed, this section requires a court to make its own determination as to whether it may continue the stay. For the...
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MEMORANDUM OPINION RE: TRUSTEE’S COMPLAINT FOR TURNOVER This matter comes before the Court on plaintiff-trustee’s complaint to turn over estate property pursuant to §§ 542 and 543 of the Bankruptcy Code. A trial in this matter was held on February 27, 2006 and appearing were Michael Moran, counsel for plaintiff-trustee and Lee Kravitz, counsel for defendant-debtor. During the trial, n...
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MEMORANDUM OPINION This matter comes before the Court on Nissan Motor Acceptance Corp.’s objection to confirmation. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(L). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in conformance with Federal Rule of Bankruptcy Procedure 7052...
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MEMORANDUM OF DECISION AND ORDER REGARDING STUDENT LOAN DISCHARGE By her complaint in this adversary proceeding. Susan P. Dufresne seeks a dis *393 charge of her outstanding student loans on an undue hardship basis under Section 523(a)(8) of the Bankruptcy Code. Defendant New Hampshire Higher Education Assistance Foundation (“NH”) is the as-signee of these loans and opposes their discharge....
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DECISION AND ORDER DENYING MOTION FOR ORDER REQUIRING THE UNITED STATES TRUSTEE TO APPOINT AN OFFICIAL ASBESTOS COMMITTEE Before this Court is the Ad Hoc Committee of Asbestos Personal Injury Claim *37 ants’ (the “Movants”) motion (the “Motion”) pursuant to section 1102(a)(2) of title 11 of the United States Code (the “Bankruptcy Code”) for an Order directing the United States Trustee (the ...
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MEMORANDUM OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW The trustee in these jointly administered corporate cases has filed this action to avoid a series of transfers made to the defendant in the years prior to the bankruptcy filing. The debtors each filed bankruptcy on October 15, 2008. The trustee argues that each debtor made a series of fraudulent transfers to the defendant ove...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW This bankruptcy case began when the debtor filed a chapter 7 petition in the Western District of North Carolina on September 23, 2003. The North Carolina bankruptcy court transferred the case to the Southern District of Florida on November 12, 2003. Thus began what is clearly a long and tortured investigation into the debtor...
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INTRODUCTION Luis R. Gonzalez-Ruiz and Doris Gabriel-De Gonzalez (jointly, the “Debtors”) appeal from two orders of the United States Bankruptcy Court for the District of Puerto Rico (the “bankruptcy court”): 1) an order, dated February 9, 2004, granting the emergency motion of Doral Financial Corporation (“Doral”) for authority to proceed with a foreclosure sale of the Debtors’ reside...
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*120MEMORANDUM OF DECISION This matter came before the Court on the Creditor International Union of Operating Engineers Local 4 Trust Funds’ (“Funds”) “Motion to Amend Proof of Claim, or in the alternative for Leave to File Late.” (Doc. 279) Crane Rental Company, Inc (“Debtor”) filed an opposition to the motion. (Doc. 288) The Court held a non-evidentiary hearing and took the matter under adviseme...
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MEMORANDUM I. INTRODUCTION The matters before the Court for consideration are the Motion for Authority to Sell Marriott Aruba Ocean Club Time Share Week (the “Sale Motion”) filed by the Kelly L. Linehan (the “Debtor”), who is a joint owner of the time share with her spouse, Robert Bruce Linehan, Jr., a debt- or in Chapter 13 Case No. 05-22492-JNF, and the Objection to the Motion file...
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ORDER INTERPRETING 11 U.S.C. § 362(c)(3)(A) AND DENYING MOTION TO EXTEND THE AUTOMATIC STAY PURSUANT TO 11 U.S.C. § 362(c)(3)(B) On March 2, 2006 the Court held a hearing on the following pleadings: (1) a “Motion for Order Confirming Inapplicability of Automatic Stay ...” [docket # 13] filed by Mortgage Electronic Registration Systems, Inc. (“MERS”); (2) debtor’s “Motion to Extend the Aut...
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MEMORANDUM AND ORDER SUSTAINING EDUCATIONAL CREDIT MANAGEMENT CORPORATION’S OBJECTION TO CONFIRMATION This matter is before the Court on the Objection to Confirmation, filed by Educational Credit Management Corporation (“ECMC”), assignee of the United States Department of Education pursuant to Fed. R.Bankr.Pro. 3015. The Debtor is indebted to ECMC pursuant to various student loan notes, pursuant...
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ORDER The matter before the Court is Debtor’s Motion to Dismiss for Failure to State A Claim Upon Which Relief Can Be Granted (the “Motion to Dismiss”) and Creditor’s Reply to Debtor’s Motion to Dismiss. A hearing on the Motion to Dismiss was held on December 6, 2005, where both Debtor and Creditor appeared by counsel and presented oral argument. Upon consideration of the arguments raised by eac...
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ORDER The matter before the Court is Debtor’s Motion for Redemption Pursuant to 11 U.S.C. § 722 (“Motion for Redemption”) and Creditor’s Response to Debtor’s Motion for Redemption (“Creditor’s Response”). A hearing on this matter was *302held on November 28, 2005, where both parties appeared by counsel. The Court thereafter took the matter as submitted. Upon consideration of the record as a whol...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The matter before the Court is Plaintiffs’ Complaint and Defendant’s Answer to Complaint and Amended Answer to Complaint. Plaintiff filed a Memorandum of Law on June 24, 2005. Defendant filed Defendant’s Brief in Opposition to Complaint on July 27, 2005. The Court then took the matter under submission. The Court upon consideration of the record as a whole ma...
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OPINION GRANTING REORGANIZED DEBTORS’ SUPPLEMENTAL OBJECTION TO CLASS PROOF OF CLAIM NO. 22680 I. INTRODUCTION The matter before the Court involves a proof of claim filed by Tammy Crump, Pauline Rivers, Gary Morris and Donna Chaplinski (collectively, “Crump”) in the chapter 11 cases of the above-captioned debtors (collectively, the “Debtors,” “WorldCom,” or “MCI”). On January 22, 200...
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DECISION ON TRUSTEE’S OBJECTION TO A LATE CLAIM In this case, which is pending under Chapter 13 of the United States Bankruptcy Code, the trustee has objected to a claim filed by Three Rivers Federal Credit Union because it was filed after the claims bar date. In response, the Credit Union contends that, for equitable reasons, the court should rely upon Rule 5005(c) of the Federal Rul...
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OPINION The issue before this Court is how the new requirement imposed on Chapter 13 debtors of an “applicable commitment period” for Chapter 13 plan payments should be interpreted. Londale Beasley, the Debtor, filed his Fourth Amended Chapter 13 Plan and seeks to have it confirmed. John H. Germeraad, the Chapter 13 Trustee, objected to confirmation on several grounds, including an alleged fail...
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ORDER DENYING DISCHARGE This adversary proceeding comes before the Court on the complaint of the United States Trustee (“UST”) pursuant to 11 U.S.C.A. § 1328(f)(1) seeking to deny the debtor’s discharge. 1 Jurisdiction for this proceeding is premised upon 28 U.S.C.A. §§ 1334(a,b) and 157(a). This adversary proceeding is a core proceeding. 28 U.S.C.A. § 157(b)(2)(J). This proceeding arises u...
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MEMORANDUM DECISION OVERRULING DEBTOR’S OBJECTION TO PROPOSED SALE OF HOMESTEAD PROPERTY In this chapter 7 case, the Trustee, Susan K. Woodard (“Trustee”), obtained an order granting her motion to sell the Debt- or’s Georgia homestead. The Debtor moved for rehearing on the basis that she had not been properly noticed with the motion to sell her homestead. While the Court found that th...
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MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION TO DISMISS COUNTS I THROUGH VII OF THE AMENDED COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION Before the Court is the Defendants’ Motion to Dismiss Counts I through VII of the Amended Complaint for Lack of Subject Matter Jurisdiction [# 34] and the Trustee’s Opposition thereto [# 39]. The Motion to Dismiss seeks a dismissal of all counts on the grou...
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OPINION AND ORDER GRANTING REARGUMENT, ADHERING TO THE COURT’S ORIGINAL DECISION AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO SUPPLEMENT THE RECORD The plaintiffs (“Salsberg”) commenced this timely adversary proceeding to revoke the confirmation order entered on January 21, 2005. In an opinion and order dated January 6, 2006, the Court granted the motion for summary judg...
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MEMORANDUM OPINION Sargent Electric Company, the instant debtor (hereafter “the Debtor”), brought a pre-petition breach of contract action against the Jefferson County Commission (hereafter “Jefferson County”) in the United States District Court for the Northern District of Alabama (hereafter “the Debt- *516 or’s Action”). On the basis of a forum selection clause containe...
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This is an appeal of the bankruptcy court’s order granting summary judgment in favor of the Plaintiffs on their complaint that unliquidated debts allegedly owed to them by the Debtors should be excepted from discharge under 11 U.S.C. § 523(a)(6). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 158(b). For the reasons set forth below, we reverse the court’s order and remand the cas...
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DECISION REGARDING MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT The Business Bank (the “Bank”), which lent money to the debtor, Timothy Dean’s, Inc., brought this proceeding against William White, the trustee of the debtor’s estate under chapter 7 of the Bankruptcy Code, 11 U.S.C. § 101 et seq., and SLT Realty Limited Partnership, doing busines...
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ORDER DENYING REQUEST FOR HEARING TO BAR ENTRY OF DISCHARGE AND DIRECTING THE CLERK OF THE COURT TO ENTER DISCHARGE On January 24, 2006, the court entered its Order and Notice re Opportunity to Request Hearing under 11 U.S.C. Section 727(a)(12) to Bar Entry of Discharge (D.E. No. 17), which gave notice to any party in interest to the debtor’s case that a request for a hearing to consider barrin...
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ORDER ON (1) MOTION TO REQUIRE RELEASE OF POST-PETITION LIENS OF INTERNAL REVENUE SERVICE; (2) DEBTOR’S MOTION FOR SUMMARY JUDGMENT; AND (3) UNITED STATES’ MOTION FOR SUMMARY JUDGMENT THIS CASE came before the Court for hearing to consider (1) the Motion to Require Release of Posb-Petition Liens of the Internal Revenue Service filed by the Debtor, William O’Callaghan; (2) the Debtor’s Motion for S...
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MEMORANDUM AND ORDER AS TO REAL PROPERTY DENYING RELIEF UNDER 11 U.S.C. § 362(d)(4) AND GRANTING CERTAIN IN REM RELIEF The matter before the court in each of these three cases is a motion for relief from stay, accompanied by a request for relief under 11 U.S.C. § 362(d)(4) against residential real property owned, in whole or in part, by the Debtor. The requested relief also requires t...
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ORDER On this date, the Court considers the motion to avoid judicial lien filed on August 23, 2004, by Michael Allen May d/b/a May Heating & Air and Cindy Tonette May (“Debtors”). Creditor Equipment Supply & Distribution, Inc. (“Equipment Supply”) responded to the motion on November 30, 2004. The issue at bar is whether Equipment Supply’s judicial lien impairs the Debtors’ exemption claimed in ...
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PROCEDURAL BACKGROUND These are appeals from Orders of the United States Bankruptcy Court for the Eastern District of Missouri 1 issued on July 6, 2005, and February 6, 2006, in which the court granted the Debtors’ Motions to Amend their Chapter 13 Plan. After oral argument in these appeals, Appellant Tina Livestock Sales, Inc., filed a Dismissal of Appeal in Case No. 05-6041, ...
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MEMORANDUM OPINION This matter came on for hearing on March 7, 2006, upon the Omnibus Objection of the United States Trustee to certain Supplemental Fee Applications of the *770 Boleman Law Firm. At the conclusion of the hearing, the Court took this matter under advisement. The Court has jurisdiction over these proceedings pursuant to 28 U.S.C. §§ 157(b)(2) and 1334(b). Venue...
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MEMORANDUM OPINION Debtors Edward Kelin and Robin Kelin have taken allowed exemptions in a pre-petition lawsuit brought by debtor Robin Kelin. The exemptions were claimed in accordance with §§ 522(d)(5), (d)(11)(D) and (d)(11)(E) of the Bankruptcy Code. Now that the lawsuit has been settled, the chapter 7 trustee has brought a motion to determine how much of the settlement procee...
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ORDER DENYING DEBTOR’S MOTION FOR ENTRY OF FINAL JUDGMENT DISCHARGING DEBT This adversary proceeding came on for consideration without a hearing on the Debtor’s motion for entry of final judgment discharging debt [CP 6]. The Debtor filed her voluntary chapter 7 petition on May 14, 2002 [CP l].1 The Debtor received her chapter 7 discharge on December 13, 2002 [CP 15], and the Debtor’s case was a...
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ORDER ON JOINT MOTION OF PLAN ADMINISTRATOR AND WELLS FARGO FOOTHILL, INC., FOR CIVIL CONTEMPT AND SANCTIONS AGAINST THE AMERICAN CLUB These confirmed chapter 11 cases came on for hearing on March 20, 2006, on the joint motion (the “Motion”) [CP 3347] of Jeffrey H. Beck, the post-confirmation Plan Administrator for these liquidating Debtors, and Wells Fargo Foothill, Inc. (“Foothill,” ...
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MEMORANDUM OPINION AND ORDER IMPOSING SANCTIONS ON DEBTORS’ COUNSEL Now before the Court is the Court’s Order to Show Cause Why Debtors’ Counsel Should Not Be Sanctioned (the “Order to Show Cause”) which came on for hearing on February 7, 2006 (the “Show Cause Hearing”). This Order was sent to all Debtors whose case was the subject of the Order. Debtors were invited, but no...
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RULING ON OBJECTION TO TRUSTEE’S NOTICE OF PROPOSED SALE I. Presently before the court are the Chapter 7 trustee’s pleading entitled “Trustee’s Notice of Intent to Sell Real Property Known as 123R Case Street, Granby, Connecticut at Private Sale Pursuant to 11 USC § 363 and Opportunity to Make Better and Higher Offer” (“the notice”), and an objection filed by an adjacent landowner. A hearing on...
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*659 DECISION This case was filed on February 15, 2006. Upon doing so, debtor’s counsel filed a motion asking the court to deem it to have been filed on October 16, 2005. The motion represents that counsel attempted to file the ease on Sunday, October 16, 2005, but was unable to do so, even though he had successfully filed other cases that same day. Although counsel was aware that the case had n...
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ORDER ON TRUSTEE’S OBJECTION TO THIRD AMENDMENT TO CHANGE CHAPTER 7 CLAIM OF EXEMPTIONS THIS MATTER came before the Court on the Trustee’s Objection to Third Amendment to Change Chapter 7 Claim of Exemptions (“Trustee’s Objection to Exemptions”). 1 The Chapter 7 Trustee as *777 serts that there is $4,900.00 in non-exempt property in the Debtor’s bankruptcy esta...
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MEMORANDUM OPINION Since at least 2000, debtor Chris Hansen has worked as an officer of several small, mostly unsuccessful companies that compound and blend motor oil. See Schechter v. Hansen (In re Hansen), 325 B.R. 746, 751 (Bankr.N.D.Ill.2005). In 2001, Hansen sold his house and used $100,000 of the proceeds to keep one of those companies, APMC Oil Company, afloat. The p...
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MEMORANDUM OPINION The matter before the Court for consideration is the Complaint of the pro se Debtor, Cathy S. Holler, entitled “Amended Objection to Claim” filed against Fairbanks Capital Corporation Servicing Center, Defendant. In light of the final state court judgment rendered prior to the filing of the within bankruptcy, the Court lacks subject matter juri...
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ORDER DISMISSING CASE FOR FAILURE TO SUBMIT PAYMENT ADVICES TO THE CHAPTER 7 TRUSTEE THIS MATTER is before the Court on the Chapter 7 Trustee’s Motion to Dismiss for Debtor’s failure to submit payment advices and tax returns. 1 The Court held a preliminary hearing on the Motion to Dismiss on May 1, 2006 and took the matter under advisement. Pursuant to 11 U.S.C. § 521(a)(l)(B)(iv), the De...
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OPINION In this adversary proceeding, the Chapter 7 Trustee, Andrea Dobin, seeks to avoid certain transfers pursuant to a property settlement agreement between the Debtor, Phyllis Hill, and her ex-husband, Daniel Hill, as part of their divorce proceeding. It is the Trustee’s contention that the terms of the divorce settlement agreement were made disproportionately favorable to the non...
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DECISION AND ORDER ON MOTION TO REJECT COLLECTIVE BARGAINING AGREEMENT Before the Court is a motion by debtor Comair, Inc. (“Comair” or “debtor”) to reject its collective bargaining agreement (the “Flight Attendant Agreement”) with its flight attendants represented by the International Brotherhood of Teamsters (the “IBT” or “Union”) under Section 1113 of the Bankruptcy Code. The Court held an...
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MEMORANDUM OPINION THIS CORE PROCEEDING1 comes before the Court on Defendant State of Georgia Department of Early Care and Learning’s (“Defendant”) Motion for Summary Judgment and Plaintiff/Chapter 11 Debtor Kids World of America, Inc.’s (“Plaintiff’) Response. The Plaintiff, a child care provider, filed a Complaint for Turnover of Funds, seeking money allegedly owed to it pursuant to an asserted ...
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ORDER AND OPINION This matter came on for hearing on April 20, 2006, in Durham, North Carolina upon an Objection by Allegacy Federal *544 Credit Union (“the Creditor”) to the confirmation of the Debtor’s Chapter 13 Plan. Edward C. Boltz appeared on behalf of the Debtor, L. Clifford Brisson, Jr., appeared on behalf of the Creditor, and Benjamin E. Lovell appeared on behalf of Richard M. Hutson...
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MEMORANDUM OPINION THIS CORE PROCEEDING comes before the Court on Plaintiff Marianne F. Maes’s (“Plaintiff’) Complaint under Section 523(a)(5) and Section 523(a)(15), and Defendant/Debtor David Raoul Maes’s (“Defendant”) Answer and Counterclaim. The Plaintiff is seeking to have certain debts totaling approximately $29,000.00 deemed nondischargeable. Pursuant to the parties Separation Agreement the...
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ORDER On this 8th day of March, 2006, this matter came on for trial on the Debtor’s Motion to Avoid Judicial Lien on Real Estate and the Objection thereto filed by the State of Oklahoma ex rel Board of Regents for the University of Oklahoma (“OU”). Debtor appeared pro se, and OU was represented by Richard Winblad. After hearing and reviewing the evidence and testimony presented by the parties, t...
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MEMORANDUM DECISION I. INTRODUCTION Margarita Castaneda (“Debtor”) has filed this motion to continue the automatic stay as to all creditors beyond the 30th day after the filing of this bankruptcy case pursuant to 11 U.S.C. § 362(c)(3)(B)(“Mo-tion”). 1 Although the Motion is unopposed, this section requires a court to make its own determination whether it may continue the stay. For the rea...
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MEMORANDUM OPINION AND NOW, this 8th day of May, 2006, upon consideration of (a) the complaint filed by the IUE-CWA Pension Fund, et al. (hereafter “the Pension Fund”), against Joseph Piccirilli (hereafter “Piccirilli”), which complaint was filed first in the United States District Court for the District of New Jersey and then removed to this Court by Pittsburgh Brewing Company, Inc., the insta...
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MEMORANDUM OPINION 1 This matter is before the Court on the Motion of Marjorie Joan Martin (“Martin”) for Allowance and Immediate Payment of *179 Administrative Claim (the “Motion”). The Liquidating Trust of ANC Rental Corporation, Inc. (the “Trust”) opposes the Motion. For the reasons set forth below, the Court will deny the Motion. I.BACKGROUND ...
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OPINION DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT The telecommunications company MCI WorldCom Network Services, Inc. (“MCI,” “WorldCom,” the “Plaintiffs,” or the “Debtors”), purchased an “indefeasible right of use” (“IRU”) of six fibers in the Baltimore area from Cambrian Communications, LLC (“Cambrian”). Cambrian subsequently fil...
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DECISION GRANTING DEBTORS’ MOTION TO APPROVE THE PROPOSED KEY EMPLOYEE RETENTION PLAN This matter comes before the court on the motion of The Brooklyn Hospital Cen *408 ter (“TBHC”) and Caledonian Health Center, Inc. (“CHC”) (collectively, the “debtors”), the debtors and debtors-in-possession, for an order pursuant to 11 U.S.C. §§ 105(a) and 363(b), approving and authorizing the implementatio...
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Memorandum of Decision In these two post-BAPCPA cases, consumer debtors seek orders determining that they have not violated the Bankrupt *388 cy Code’s requirements for providing the trustee with copies of pre-bankruptcy tax returns, 11 U.S.C. § 521(e)(2)(A)(i) 1 , even though copies of the returns have not been, and will not be, provided to the trustee in eith...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Case is before the Court upon Bank of New York’s (“Creditor”) Objection to Confirmation of Debtor’s Plan pursuant to 11 U.S.C. Section 1325(a)(5)(B)(iii)(I). After a hearing on April 20, 2006, the Court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. On February 10, 2006, Matthew R. Davis (“Debtor”) filed a Ch...
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MEMORANDUM OPINION On January 19, 2005, the plaintiffs filed this class action complaint against Quante-gy, Inc. for alleged violations of the Worker Adjustment and Retraining Notification Act (the “WARN Act”), 29 U.S.C. §§ 2101-2109. On March 29, 2005, Mary Ann Hutchinson, a named plaintiff, filed a timely class proof of claim in the underlying bankruptcy case. On May 5, 2005, the co...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Debtor’s Motion for Confirmation of the Chapter 13 Plan and the Chapter 13 Trustee’s Objection to Confirmation. The Court held a hearing on March 2, 2006 and, at the conclusion, instructed the parties to submit memorandum of law in support of their respective positions. The Court makes the following Findings of Fac...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon Motion of Mazak Corporation to Reclassify the Claim of Tennessee Engine Works (the “Motion to Reclassify”). The Court conducted a hearing on the matter on November 3, 2005. At the conclusion of the hearing, the Court directed the parties to submit memoranda in support of their respective positions. Upon the evidence and...
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ORDER DENYING EMERGENCY MOTION TO VACATE AND/OR STAY STATE COURT ORDER DENYING OBJECTION TO FORECLOSURE AND GRANTING WRIT OR POSSESSION This matter came before the Court initially on March 2, 2006 at 1:30 p.m., and was continued for hearing on March 20, 2006 at 9:30 a.m., on Debtor’s Emergency Motion to Vacate and/or Stay State Court Order Denying Debtor’s Objection to Foreclosure and...
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MEMORANDUM OPINION The issue presented in this Chapter 13 case, which is governed by the Bankruptcy Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), is whether a below median debtor’s “projected disposable income,” as that term is used in section 1325(b)(1)(B) 1 is determined from Form B22C or whether “projected disposable income” is determi...
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*338 ORDER By motion filed January 17, 2006, the debtors Jonathan and Angie Whitaker (the “Debtors” or “Movants”) seek to reinstate the automatic stay of 11 U.S.C. § 362(a). The Debtors seek this relief pursuant to § 362(c)(4) of the Bankruptcy Code. 1 The Debtors are not entitled to a reinstatement of the automatic stay (the “stay”) under that subsection. Nor does...
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MEMORANDUM OPINION Should a debt be excepted from the discharge — under Section 523(a)(2) of the Bankruptcy Code, for fraud, false pretenses, or use of a materially false writing regarding the debtor’s financial condition — where the debtor knowingly posed as a home buyer to obtain a mortgage loan for the purchase of a home for persons having sub-standard credit? By her own admission,...
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OPINION GRANTING DEFENDANTS’ MOTIONS TO DISMISS COMPLAINT The issue presented is whether recovery, pursuant to 11 U.S.C. § 550(a), of a transfer of a debtor’s interest in property from a subsequent transferee requires as a prerequisite that the transfer have previously been avoided, pursuant to the trustee’s avoidance powers, against the initial transferee. The Court concludes that althou...
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OPINION 1 Before the Court are cross-motions for partial summary judgment filed by Fluor Enterprises, Inc. (“Fluor”) and Orion Refining Corporation (the “Debtor”). In their respective motions, Fluor contends that it has a secured or constructive trust claim in excess of $26 million, and the Debtor asserts that Fluor is merely a general unsecured creditor. For the reasons stated he...
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MEMORANDUM OPINION AND ORDER This matter is before the court for hearing on confirmation and consideration of an objection to confirmation of the Debtors’ Chapter 13 Plan filed by secured creditor Regional Acceptance Corporation (“RAC”). The Debtors filed their original Chapter 13 Plan with their petition on January 20, 2006. They subsequently filed amended plans on February 7, 2006 and March...
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ORDER This matter comes before the Court on Expeditors International of Washington, Inc.’s [“Expeditors”] Motion for Partial Summary Judgment on Plaintiffs Complaint filed on August 29, 2005. The matter was fully briefed on November 11, 2005. Based upon the pleadings and evidence presented, the Court makes the following Findings of Fact: 1. On October 16, 2000 [the “Petition Date”], the Debtors fi...
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MEMORANDUM OPINION This matter comes before the court on the Receiver’s Motions for Approval of Sale of Debtor’s Interest in Rainbow International Holdings, LLC and for Approval of Bidding Procedures for Sale. The Receiver’s motions generated extensive briefing by Roy G. Welland and by Rainbow. For the reasons stated below, the court grants the Motion for Approval of Bidding Procedures fo...
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OPINION AND ORDER RE MOTIONS TO DISMISS Seeking to avoid and recover various payments the debtors had made, the plaintiff, Sam J. Alberts, Trustee for the DCHC Liquidating Trust, commenced this adversary proceeding against Arthur J. Gallagher & Co. (“AJG”).1 He later amended *94the complaint to add various insurance companies as defendants. Three of those added defendants (the “Added Defendants...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently under consideration by the Court is a motion filed by Joy L. Irons, f/k/a Joy L. Chamber, and Joseph N. Irons (collectively the “Debtors”), on April 19, 2005, objecting to three proofs of claims that were filed by eCAST Settlement Corporation (“eCAST”). On May 2, 2005, eCAST filed opposition to the Debtors’ motion wit...
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MEMORANDUM OPINION This opinion is with respect to the defendants Discovery Re 1 and United States Fidelity & Guaranty Co.’s motion to dismiss (Adv.Doc. # 13) the plaintiff OHC Liquidating Trust’s adversary complaint (Adv.Doc. # 1). For the reasons stated below, the Court will grant the motion as to Counts I, II, V and VI, but will deny the motion as to Counts III, IV and VII. ...
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JUDGMENT Based upon the Findings of Fact and Conclusions of Law as recited in the attached Order of the Court, Defendants’ Motion for Summary Judgment is granted in part in so much as this Court holds that the use of some portion of Debtor’s property is restricted. The remaining issues raised in Defendants’ Motion for Summary Judgment and Debtor’s Motion for Summary Judgment, as addressed...
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ORDER ON DEFENDANT’S MOTION TO DISMISS This proceeding is before the Court on a motion to dismiss filed by the United States on behalf of the Internal Revenue Service. The IRS appears by counsel Thomas W. Curteman, Jr., a trial attorney in the Tax Division of the U.S. Department of Justice in Washington, D.C. The plaintiff-debtor appears by counsel Dan W. Forker, Jr., of Forker, Suter & Ro...
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DECISION ON BANK LENDERS’ CLAIMS TO ADDITIONAL INTEREST In this contested matter in the jointly administered chapter 11 cases of Adelphia Communications Corporation and its subsidiaries (the “Debtors” or “Adelphia”), the Court has before it, as now relevant to the size of the reserves that the Debtors will have to fund under them plan of reoi'gani-zation, issues with respect to aspects of...
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DECISION ON RESPONSE TO ORDERS ON SANCTIONS, DEBTOR’S MOTION TO RECONSIDER, AND DEBTOR’S MOTION TO WITHDRAW PLAN Debtor’s counsel in this chapter 13 case, Kevin Marshall, failed to appear for a pretrial conference held on February 7, 2006, with regard to a motion for relief from stay and abandonment filed on behalf of Wells Fargo Bank. The pre-trial had originally been scheduled for January 1...
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MEMORANDUM OPINION The debtor, Láveme Mangum, filed this adversary proceeding against the standing Chapter 13 trustee, Marilyn Marshall, to get a discharge in her chapter 13 case and a refund of funds the trustee is holding. Both the debtor and the Ch. 13 trustee have agreed that there are no disputed facts and that this case presents only issues of law. Both parties have requested the court ...
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*800 ORDER This matter came before the Court on the Request for Waiver of Credit Counseling Certificate at Time of Filing Due to Exigent Circumstances (“Request”) 1 filed by John William Carey and Joan Gaehring Carey, the Debtors herein (collectively, the “Debtors”). An evidentiary hearing on the Request was held on April 10, 2006. Present at the hearing were the Debtors and their bankrup...
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MEMORANDUM OPINION This matter came before the Court on the Complaint for Determination of Dis-chargeability and Seeking a Denial of Discharge (“Complaint”) 1 filed by Tip Top Tree Experts, LLC, the Plaintiff herein (the “Plaintiff’), against Dudley Eugene Corley (“Mr.Corley”) and Catherine Ann Corley (“Mrs.Corley”), the Defendants and Debtors herein (collectively, the “Debtors”). The Plain...
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OPINION This Opinion addresses the devilish issue of whether a real estate tax buyer holds a claim that may be modified in a Chapter 13 plan and the effect of expiration of the redemption period postpetition. The Debtor, Lonnie E. McKinney (DEBTOR), resides at 1231 N.E. Perry, Peoria, Illinois, in a duplex that he owns. A disabled veteran, his only income is $846.00 per month from a Ve...
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MEMORANDUM THIS MATTER is before the Court on cross motions for summary judgment. Defendants Robert P. Baines and Deann M. Baines, by and through their attorneys of record, Freedman Boyd Daniels Hollander & Goldberg, P.A. (Joseph *396 Goldberg), filed a Motion for Partial Summary Judgment and memorandum in support thereof on March 25, 2005; Plaintiffs Crossingh...
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS THIS MATTER is before the Court on the Motion to Dismiss filed by Defendant, Aaron Manelos aka/dba M Construction Creative Concepts (“Defendant”), by and through his attorney of record, R. “Trey” Arvizu, III. Also before the Court is the Plaintiffs Motion for Summary Judgment. Plaintiff Foxworth Gailbraith Lumber Co., Inc. filed a memorandu...
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MEMORANDUM OPINION Hearing was held October 12, 2005, on the motion of Western Surety Company to approve payment to it of contract funds arising under two pre-petition construction contracts of the debtor, Jones Construction & Renovation, Inc. Western Surety also asserts its right to debtor’s claim against the owners of one of the projects, Christopher Newport University. The trustee ...
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ORDER GRANTING TRUSTEE’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S PARTIAL MOTION FOR SUMMARY JUDGMENT Trustee’s complaint in this adversary proceeding seeks to avoid a fraudulent *38 transfer pursuant to 11 U.S.C. § 548 and to recover funds from Defendant pursuant to 11 U.S.C. § 550. Defendant Sandstone Estates, LLC (“Sandstone”) filed a motion for partial summary ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently under consideration by the Court is a motion filed by Gary L. Surprise and Mary Ann Surprise (collectively, the “Debtors”) on October 3, 2005, seeking damages from HSBC Auto Finance, fik/a Household Auto Finance, a/k/a Household Automotive Finance (“HSBC”) for an alleged violation of § 362 and § 524 of the Bankruptcy ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Trustee’s motion for a determination that the personal property identified on the debtor’s Schedules B and D filed with the Bankruptcy Court is of consequential value or benefit to the bankruptcy estate. A hearing having been held on March 8, 2006, the Court makes the following findings of fact and conclusions of law....
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MEMORANDUM OPINION This matter is before the court on a motion by the defendant, attorney Claude T. Compton, to dismiss the debtor’s complaint for failure to state a claim upon which relief can be granted. The is an action to recover damages arising from the alleged improper drafting and recording of three deeds. The dispositive issue is whether the debtor’s claim — which has been pleaded...
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DECISION AND ORDER DENYING MOTION TO STRIKE CASE This venture is Donna and David Ra-cette’s (the “Debtors”) fourth into bank *201 ruptcy court, but the issue is whether this is their fourth bankruptcy case. The Debtors filed a chapter 7 case on March 27, 1998 and received a discharge on July 1, 1998. They filed another chapter 7 case on April 27,' 2005 and were discharged from their debts on ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The Court considers the motion filed on December 28, 2005, by Oneida Entertainment, LLC (“Oneida”), on shortened notice, seeking a determination pursuant to Rule 3019 of the Federal Rules of Bankruptcy Procedure (“Fed.R.Bankr.P.”) that further disclosure and resolicitation of votes are not required with respect to its Mod...
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OPINION Before the Court is the objection of FORD MOTOR CREDIT COMPANY (FMCC) to confirmation of the Amended Chapter 13 plan filed by STEVEN PRYOR, the Debtor (DEBTOR). A hearing was held on February 13, 2006, and the matter was taken under advisement. The narrow question before the Court is whether the interest rate payable on a secured claim is capped at the contract rate. Both the DEBTOR a...
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MEMORANDUM AND ORDER DENYING MOTION OF FIRST NATIONAL BANK OF KANSAS TO COMPEL TURNOVER OF VEHICLE The issue before the Court is whether the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (hereafter “BAPCPA”) eliminated the “fourth option,” an alternative to reaffirmation or redemption available before BAPCPA in the Tenth Circuit for secured debts in Chapter 7 cases. The ...
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MEMORANDUM OPINION I. INTRODUCTION Michael Askenaizer, the chapter 7 trustee (the “Trustee”), filed a motion to dismiss the case pursuant to 11 U.S.C. § 521(e)(2)(A) 1 or for an order determining that Nicole Grasso (the “Debtor”) had complied with § 521(e)(2)(A) or was exempt from compliance under § 521(e)(2)(B) (Doc. No. 7) (the “Motion”). At the conclusion of the hea...
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ORDER ON (1) DEBTOR’S VERIFIED MOTION FOR SUMMARY JUDGMENT AND (2) MOTION BY UNITED STATES FOR SUMMARY JUDGMENT THIS CASE came before the Court for hearing to consider (1) the Debtor’s Verified Motion for Summary Judgment, and (2) the Motion by United States for Summary Judgment. Both of the Motions relate to a Motion for Order to Show Cause filed by the Debtor, Walter F. Gill. In the Motio...
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OPINION This appeal presents questions regarding the “landlord’s cap” of § 502(b)(6), 1 untimely claims, and amended claims. A few days after landlord Wall Street Plaza, LLC, was awarded a state court judgment for damages against debtor JSJF Corporation for breach of lease, JSJF filed its chapter 11 petition. Wall Street and its counsel filed three proofs of claim, to whic...
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ORDER On March 10, 2006, Estephen and Angela Cobb (“Debtors”) filed a voluntary petition for relief under the provisions of Chapter 13 of the United States Bankruptcy Code. The petition was filed pro se. Accompanying the face sheet of the petition, which was filled out by hand, was a typewritten matrix that listed twelve creditors. Also filed on March 10 was a typed statement alleging...
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*360 ORDER OVERRULING TRUSTEE’S OBJECTION TO DEBTOR’S EXEMPTIONS This case came on for hearing on April 27, 2006, upon the Chapter 7 Trustee’s Objection to Exemptions (the “Objection”) (Doc. 16). The Debtor filed her Chapter 7 petition on January 13, 2006, along with her schedules and statement of financial affairs and other required documents. In her original Schedule C filed with the petiti...
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UNDER ADVISEMENT DECISION RE: TRUSTEE’S MOTION FOR TURNOVER OF PROPERTY On April 22, 2004, Debtor Caroline Niles filed for Chapter 13 relief. At the time of her filing, Debtor valued her Gilbert, Arizona home in her Schedules at $180,000 *73 with a mortgage owing of $160,000. Debt- or claimed a homestead exemption under Arizona Revised Statute section 33-1101(A). Her Plan was confirmed on Nov...
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MEMORANDUM OPINION Chase Home Finance LLC, Its Successors and/or Assigns, Movant, filed a Motion To Validate Foreclosure Sale Or, In The Alternative, Motion For Relief From Stay on November 16, 2005. A hearing on the motion was held on December 19, 2005. The hearing was concluded on February 2, 2006. The Court, having considered the evidence presented and the arguments of counsel, now...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Adversary Proceeding relates to the joint Chapter 7 bankruptcy case of Michael and Kelly Donlevy.1 The plaintiffs, David and Kay Lefelstein (“Plaintiffs”) allege that pursuant to a construction contract between the Plaintiffs and *777the Defendant, the Defendant agreed to use funds given to him as a “material deposit” of $9,470 for payment to Chicago ...
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MEMORANDUM OPINION The parties dispute whether objections to Mr. Cherry’s exemptions were filed timely. For the reasons set forth below, the Court finds that the objections were timely and denies Mr. Cherry’s motion for preemptive dismissal. Background On September 9, 2005, the Debtor filed a voluntary petition for bankruptcy under chapter 7. On October 12, 2005, a Rule 2004...
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OPINION A chapter 13 debtor’s amended plan provided that attorneys’ fees remaining unpaid at the completion of the case would not be discharged and would be paid directly by the debtor after entry of his discharge. Debtor’s counsel filed a fee application requesting approval of fees incurred after confirmation of debtor’s plan and requesting that the court permit the fees to be paid directly by de...
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MEMORANDUM OF OPINION APPROVING SETTLEMENT AGREEMENTS Before the Court is a motion by the Debtors to approve two settlements modifying retiree benefits pursuant to 11 U.S.C. § 1114(e)(1)(B). One settlement was reached with the Milwaukee Unions, 1 *160 while the other settlement was reached with an Official Committee of Retired Employees (the “Retiree Committee”). ...
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MEMORANDUM OF OPINION The Chapter 7 Trustee (the “Trustee”) of the above-named Debtor brought an adversary proceeding against defendants, Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage Company (collectively, “Wells Fargo”), to recover mortgage payments made by the Debtor as constructive fraudulent transfers under § 548 of the Bankruptcy Code. Before the Court is Wells Fargo’s motion...
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MEMORANDUM OF DECISION By his complaint in this adversary proceeding, the chapter 7 Trustee, Stewart F. Grossman (“the Trustee”), seeks revocation of the Debtor’s chapter 7 discharge. The complaint seeks revocation under 11 U.S.C. § 727(d)(2), on the basis that the Debtor became entitled to acquire, and did acquire, property of the estate — specifically, the proceeds of a prepetition promisso...
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MEMORANDUM ON MOTIONS FOR SUMMARY JUDGMENT This proceeding comes before the Court on the cross motions for summary judgment filed by Roberta S. Dunlap, the Chapter 7 trustee (hereinafter “Trustee”) and the defendant, Commonwealth Community Bank (hereinafter the “Bank”). Upon consideration of the summary judgment motions and the supporting documentation, the Court holds that summary judgment sho...
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MEMORANDUM OF DECISION Sara L. Kistler, Acting United States Trustee, (the “UST”) moves to dismiss the above-captioned case as an abuse of the Bankruptcy Code pursuant to section 707(b)(3). 1 For the reasons stated below, the motion will be GRANTED. BACKGROUND John Pak (the “Debtor”), an individual whose debts are primarily consumer debts, filed a voluntary petition seeking relief under c...
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MEMORANDUM OPINION In May 2002, Federal Pipe & Steel Corporation and Alpha Steel Corporation jointly formed Federalpha Steel LLC to run three steel service centers. Federal-pha rapidly ran into financial trouble. In mid-2003, Russel Metals, Inc. acquired Federal Pipe’s parent company. On reviewing Federal Pipe’s financial condition, Russel Metals concluded that the liability posed by ...
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MEMORANDUM OPINION 1 Before the Court is the Trustee’s Objection to the Debtors’ Exemptions and Motion for the Entry of an Order Compelling Turnover of Property of the Debtors’ Estate pursuant to 11 U.S.C. § 542 and Entry of an Order Declaring Certain Property to be Property of the Debtors’ Estate. The Debtors oppose the relief sought by the Trustee. For the reasons stated ...
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MEMORANDUM OPINION 1. Introduction Lexington Coal Company, LLC (“Lexington Coal”), one of the purchasers of assets of the former Debtors, has objected *841 to the application for allowance of administrative expense filed by Zurich American Insurance Company (“Zurich”). Lexington Coal filed its original objection (Doc. # 5492, “the Objection”) on February 18, 2005. An Agreed Scheduling O...
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MEMORANDUM OPINION On October 17, 2005, several provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) became effective. Among those are provisions that affect the rights of creditors whose claims are secured by purchase money security interests in vehicles in chapter 13 cases. New local rules and a new uniform chapter 13 plan, both of which provide for ade...
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OPINION The debtor appeals the order dismissing her chapter 13 case. We conclude, first, that the court did not comply with the two-step requirement of 11 U.S.C. § 1307(c) to determine “cause” and then to weigh the alternatives of conversion or dismissal based on the “best interests of creditors and the estate,” and, second, that § 1307(c)(5) “cause” based on denial of confirmation of a p...
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Opinion I. Introduction Before the Court is the Debtors’ Motion to Compel IRS to Consider Offer in Compromise. In their Motion, the Debtors seek to compel the United States of America, on behalf of its agency, the Internal *581 Revenue Service (the “IRS”) to consider an offer-in-compromise submitted by the Debtors to the IRS during the pendency of this case. The ...
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OPINION Thickstun Brothers Equipment Co., Inc. (the “Debtor”) appeals a bankruptcy court order denying its motion for .interpretation and clarification of its confirmed chapter 11 plan (the “Motion for Interpretation”) for lack of jurisdiction. For the following reasons, the court’s jurisdictional determination is AFFIRMED in part, REVERSED in part, and REMANDED. I.ISSUES ON APPEAL ...
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DECISION REGARDING DEFENDANTS’ MOTION TO DISMISS Defendants William C. Sanchez, M.D., and William C. Sanchez, M.D., P.C. (collectively the “Defendants”) have filed a motion to dismiss this adversary proceeding brought by Premium of America, LLC (“POA”) as successor-in-interest to the debtor Premium Escrow Services, Inc. (“PES”) with respect to certain claims assigned to POA by former inve...
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MEMORANDUM OPINION THIS CORE PROCEEDING1 comes before the Court on Plaintiff Thomas Burnett’s (“Plaintiff’) Petition to Determine Dischargeability of Debt Pursuant to 11 U.S.C. § 523(a)(5), 11 U.S.C. § 523(a)(6) and 11 U.S.C. § 523(a)(15)2, and Debtor Bonita Shain’s (“Defendant”) Answer. The Plaintiff contends that attorney fees awarded to him during a custody battle between the parties are nondi...
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MEMORANDUM-OPINION THIS ADVERSARY PROCEEDING is before the Court after the conclusion of a trial on the merits of the cause of action brought by Plaintiff against Defendant under 11 U.S.C. §§ 523(a)(5), 523(a)(15) and 727(a)(2)(A). For the reasons set forth below, the Court determines that Defendant is entitled to a discharge and that the indebtedness of the Defendant to Plaintiff is dischargeable...
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MEMORANDUM OPINION AND ORDER Hearing was held April 26, 2006, on debtor’s motion to reopen her case. The court, acting on limited information, granted debtor’s motion from the bench. After a careful review of the case file, and for the reasons stated below, the court will grant debtor’s motion conditioned upon debtor filing and properly noticing for hearing the appropriate motion to extend ti...
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ORDER DENYING MOTION TO DISMISS CHAPTER 7 CASE THIS CAUSE came before the Court on June 13, 2005 upon the Amended Motion to Dismiss Bankruptcy Proceeding, filed *337 by creditors Sam and Matilda Sanguon-chitte (C.P.38), and upon the Joinder to Sanguonchittes’ Motion to Dismiss (C.P.48) filed by Thelma McAloon. The Court, having considered the arguments of counsel and being otherwise fully...
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MEMORANDUM OPINION AND ORDER This matter is before the court on debt- or’s motion to proceed without meeting the credit counseling requirement of 11 U.S.C. § 109(h) and on debtor’s motion to conduct his § 341 meeting of creditors telephoni-cally. Debtor Michael Star, acting pro se, filed a motion seeking a permanent exemption from the credit counseling requirement pursuant to § 109(h)(4). The...
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ORDER THIS CORE PROCEEDING comes before the Court on Debtors (“Debtors”) Donnie Joe McGhee and Janie Lou McGe-hee’s Motion for Clarification of Discharge. 1 Specifically, the Debtors are asking for clarification as to the meaning of the statutory language contained in 11 U.S.C. § 1328(f), which was added to the Bankruptcy Code by the recently enacted Bankruptcy Abuse Prevention and Consumer P...
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ORDER SUSTAINING, IN PART, TRUSTEE’S OBJECTION TO EXEMPTIONS IN 2000 CADILLAC ESCALADE The Chapter 7 Trustee objects to the Debtors’ claimed exemptions in a 2000 Cadillac Escalade on the ground that any equity in the car resulted from his powers under 11 U.S.C. § 544 and, therefore, the Debtors cannot claim an exemption pursuant to 11 U.S.C. § 522(g). The Debtors respond to the Trustee’s Obje...
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MEMORANDUM OPINION The Chapter 13 Trustee filed a Motion to Deny Confirmation of the Debtors’ Chapter 13 Plan, asserting that the Plan could not be confirmed because the Debtors propose a repayment period of less than sixty months and because the Debtors claim a deduction from their monthly income for a vehicle they own free and clear of liens, both in violation of 11 U.S.C. § 1325(b). Subseq...
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MEMORANDUM OPINION This matter comes before the court on the Chapter 13 Trustee’s (Trustee) motion to reinstate the “best interest number” from the original confirmed plan. At hearing, the parties stipulated to certain facts. After the hearing, the matter was briefed and is now ripe for decision. Facts: The stipulated facts (plus those of which the court may take judicial notice) are as f...
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339 B.R. 194 (2006) In re MANSFIELD CORPORATION, a Utah Corporation, Mansfield Trust, a California Business Trust, and Mansfield Viatical Management, Inc., a California Corporation, Debtors. R. Kimball Mosier, Trustee of the Substantively Consolidated Chapter 7 Bankruptcy Estates of Mansfield Corporation, Mansfield Trust, and Mansfield Viatical Management, Inc., Plaintiff, v. Cargill Financial Se...
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OPINION The court, sua sponte, ordered a secured party and its counsel to explain certain anomalies related to the execution of certifications, including a certification which would support stay relief to allow foreclosure to proceed against Jenny Rivera’s residence in Lodi, New Jersey. These parties were to show cause why sanctions should not be imposed if the court’s susp...
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MEMORANDUM OPINION In a case filed under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”): 1 Can the Court confirm a plan that proposes a payment in excess of a debtor’s disposable income calculated in accordance with 11 U.S.C. § 1325(b)(2)? Can the Court confirm a chapter 13 plan that runs less than three years? Those are the issues before the Court toda...
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ORDER DENYING DEFENDANT’S MOTION FOR ABSTENTION PURSUANT TO 11 U.S.C. § 305 Defendant Michael Lawrence Bauer requests that I suspend the proceedings in the above-captioned bankruptcy case pursuant to 11 U.S.C. § 305. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (0) over which the Court has jurisdiction pursuant to 28 U.S.C. § 1334(b), 157(a), and 157(b)(1). The followi...
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MEMORANDUM OPINION The Chapter 7 Trustee filed this adversary action seeking turnover of funds in three investment accounts held in the names of Debtors Donald McGehee (“Don”) and Sharol McGehee (“Sharol”). This is a core proceeding under 28 U.S.C. § 157(b)(2)(E) over which the Court has jurisdiction pursuant to 28 U.S.C. § 1334(b), 157(a), and 157(b)(1). The following constitutes my ...
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ORDER On December 19, 2005, Eric and Shauna Scruggs (“Debtors”) filed a voluntary petition for relief under the provisions of Chapter 13. The Debtors’ plan proposed to pay the sum of $854.00 per month to the Trustee for a period of 60 months. The plan listed the debt owed to GMAC as $38,519.00 and included payments to GMAC under the heading of “PMSI Secured Claims to which § 506 Valuation is ...
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MEMORANDUM OPINION This matter is before the Court upon the Motion for Summary Judgment of Plaintiff John A. Palik (“Plaintiff’) filed on December 30, 2005. On February 8, 2006, with leave of Court, Debtor/Defendant Jody L. Sexton (“Debtor/Defendant”) filed her Opposition Brief to the Motion for Summary Judgment. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 13...
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MEMORANDUM OPINION This matter comes before the Court on the objections of Richard J. Mason, the Chapter 7 trustee (the “Company Trustee”) for the jointly administered estates of JII Liquidating, Inc., formerly known as Jernberg Industries, Inc., IM Liquidating, LLC, formerly known as Iron Mountain Industries, LLC, and JSI Liquidating, Inc., formerly known as Jernberg Sales, Inc. (col...
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MEMORANDUM OPINION 1 Before the Court is the Motion for Summary Judgment (the “Motion”) filed by The Guardian Life Insurance Company of America (“Guardian”) seeking a determi *99 nation that five payments transferred from Lenox Healthcare, Inc. (the “Debtor”) to Guardian between April 19 and July 25, 2001, cannot be avoided and recovered by the Trustee pursuant...
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DECISION & ORDER BACKGROUND On October 14, 2005, Jerald John Hayward, II and Lois Evelyn Hayward (the “Debtors”) filed a petition initiating a Chapter 7 case. On the Schedules and Statements required to be filed by Section *43 521 and Rule 1007, the Debtors: (1) indicated that Jerald Hayward was the owner of real property located at 4120 Seneca Road, Valois, Schuyler...
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MEMORANDUM OPINION I. INTRODUCTION On November 19, 2004, Robotic Vision Systems, Inc. and Auto Image ID, Inc. (collectively the “Debtors”) sought bankruptcy protection under chapter 11 of the Bankruptcy Code. On October 11, 2005, the Court converted the Debtors’ jointly administered cases to chapter 7, and the United States Trustee (the “UST”) appointed Steven M. Notinger (the “T...
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ORDER DENYING MOTIONS TO REFUND FEES This ease came on for hearing on March 22, 2006 on motions by the Chapter 7 trustee, purportedly under 11 U.S.C. § 726(a), seeking a refund of professional fees. The United States Trustee twice joined the trustee’s motion. 1 Matthew R. Burton appeared on behalf of Thomas F. Miller, the trustee, Sarah J. Wencil appeared on behalf of the U...
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MEMORANDUM DECISION DENYING MOTION TO FIND COMPLIANCE WITH 11 U.S.C. § 521 OR, IN THE ALTERNATIVE, MOTION TO VACATE ORDER OF DISMISSAL As with this Court’s decision in In re Fawson, 1 this Chapter 13 case again raises the issue of the extent of the Court’s discretion regarding the automatic dismissal of a ease under 11 U.S.C. § 521(i). 2 I. BACKGROUND ...
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ORDER On the 27th day of April, 2006, the United States Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. 707(b)(1) Based on Presumption of Abuse Arising Under 11 U.S.C. 707(b)(2) with Authority in Support and with Notice and Opportunity for Hearing, Objection to Motion to Dismiss, filed by the Debtors, United States Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. 707(b)(3) with Authority i...
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MEMORANDUM This proceeding comes before the Court on the Motion and Memorandum *511 by Chapter 7 Trustee To Dismiss Adversary Proceeding Filed by Donald M. Heavrin and the Motion by Chapter 7 Trustee for Sanctions Against Donald M. Heavrin and Chris Hodge filed by J. Baxter Schilling, the Chapter 7 Trustee (hereinafter the “Trustee”). Donald M. Heavrin (hereinafter “Heavrin”) filed a response...
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ORDER RE: DEFENDANTS’ MOTION FOR DISMISSAL This adversary proceeding came on before the Court for hearing on the Defendants’ motion for dismissal. The Defendants appeared by their attorney, James R. Mayer. The Plaintiff (“the Trustee”) appeared by her attorney, Daniel J. McGarry. Upon the moving and responsive documents, the original and proposed amended complaints filed by the Trustee, *710 ...
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MEMORANDUM AND NOW, this 5th day of June, 2006, upon consideration of (a)the adversary complaint filed by Jesse and Carmella Neil (hereafter collectively “the Neils” or, respectively, “Mr. Neil” or “Mrs. Neil”), wherein the Neils seek a determination that their unliquidated and disputed claim against Leonard Lu-cotch, Jr., the above-captioned debt- or (hereafter “the Debtor”), is non-discha...
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ORDER DENYING DEBTOR’S MOTION TO ENFORCE DISCHARGE INJUNCTION AND FOR CONTEMPT THIS CAUSE came on to be heard on May 23, 2006, upon the debtor’s Motion to Enforce Discharge Injunction and for Contempt. The Court, having reviewed the Motion, the response memorandum filed by Horwitz & Associates, Inc. (“Horwitz”), having considered the argument of counsel, and being otherwise fully advised in the...
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ORDER GRANTING MOTIONS TO COMPEL IN PART AND DENYING IN PART AND GRANTING SANCTIONS The issue raised by three pending motions to compel is the scope of the Fifth Amendment privilege available to the debtor’s principal who has previously elected not to assert the privilege in sworn testimony given in this case. The issue is framed by the following motions: First United Bank’s (“First United”) Mo...
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Memorandum Opinion Before the Court is the Motion for Contempt of Automatic Stay (the “Motion”) filed by the Debtor against the Philadelphia Parking Authority (“PPA”). An evi-dentiary hearing at which only the Debtor testified was held on March 14, 2006 to supplement the Stipulation of Facts filed on March 13, 2006. As the pre-hearing briefs that were filed did not adequately address the legal ...
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MEMORANDUM OPINION General Electric Capital Corporation (“GE Capital”) filed this adversary complaint against Union Planters Bank (“Union Planters”). The parties’ dispute centers on which entity’s security interest had priority with respect to certain cash proceeds (the “Lift Proceeds”) generated post-confirmation by Debtor, Machinery, Inc. (“Machinery”). Because Union Planters was a transferee...
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*583 ORDER DENYING DEBTOR’S MOTION FOR PRELIMINARY INJUNCTION, AND DISMISSING ADVERSARY PROCEEDING This adversary proceeding is governed by the terms of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8 (“the Act”), because its underlying Chapter 13 case was commenced after the October 17, 2005 effective date of the Act. It came on before the Court on May 2...
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MEMORANDUM ON OBJECTION BY NEW FALLS CORPORATION TO CONFIRMATION OF AMENDED CHAPTER 13 PLAN This contested matter is before the court upon the Objection By New Falls Corporation to Confirmation filed on February 21, 2006, and on the Objection By New Falls Corporation to Confirmation of Amended Chapter 13 Plan filed on April 5, 2006 (collectively, Objection to Confirmation), asking the court t...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, MEMORANDUM OPINION THE MATTER under consideration is a Final Evidentiary Hearing held in this adversary proceeding filed by Theodore H. Focht as Trustee (Trustee) appointed for the liquidation of the assets of Old Naples Securities, Inc., (ONSI or the Debtor), under the Securities Investors Protection Act of 1970 as Amended, 15 U.S.C. §§ 78aaa, et...
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ORDER ON DEFENDANT MANATEE COUNTY’S DISPOSITIVE MOTION FOR JUDGMENT ON THE PLEADINGS The MATTER under consideration in this Chapter 7 liquidation case is Defendant Manatee County’s Dispositive Motion for Judgment on the Pleadings (Doc. No. 43), filed by Manatee County Board of Commissioners (Defendant). This Motion was filed in connection with an adversary proceeding commenced by the Trustee ag...
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MEMORANDUM OPINION The motion before the court is a Motion for Summary Judgment filed by the debtors/respondents, James and Tammy Res-chick, with respect to the Trustee’s objection to the debtors’ claimed exemptions. This matter is a core proceeding pursuant to 11 U.S.C. § 157(b)(2)(A), (E) and (O). The Motion for Summary Judgment raises an issue that is relatively straight forward. This issu...
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ORDER ON MOTION FOR ORDER DETERMINING THAT SOFTWARE LICENSE AGREEMENT IS NOT AN EXECUTORY CONTRACT OR, IN THE ALTERNATIVE, FOR AUTHORITY TO ASSUME SOFTWARE LICENSE AGREEMENT (Doc. No. 146) THE MATTER under consideration in this Chapter 11 case of Chapin Revenue Cycle Management, LLC (Debtor) is the Debtor’s Motion for Order Determining that Software License Agreement is not an Executory Contr...
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*330 AMENDED ORDER ON MOTION REQUESTING THAT THIS COURT ABSTAIN FROM HEARING THE REMOVED ADVERSARY PROCEEDING OR IN THE ALTERNATIVE REMAND TO THE STATE COURT (Doc. No. 5) THE MATTER under consideration in the confirmed Chapter 11 cases of Baron Capital Properties, L.P. and Baron Capital Trust (together, the Debtors) is a Motion Requesting that this Court Abstain from Hearing the Removed Adversar...
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ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. No. 52) THE MATTER under consideration before this Court is a Motion for Partial Summary Judgment, filed by Diane L. Jensen, Trustee (Trustee). The Motion is filed in a contested matter which involves a challenge by the Trustee of the Debtor’s right to claim the benefits of the Florida homestead exemption. The property in question was, acco...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration in this Chapter 7 liquidation case is the challenge by Felicia S. Turner, United States Trustee for Region 21 (U.S.Trustee) of the right of James K. Gardner (the Debtor) to the benefits of a general bankruptcy discharge. The Complaint Objecting to Discharge filed by the U.S. Trustee sets forth t...
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ORDER ON MOTION FOR SUMMARY JUDGMENT (Doc. No. 16) THE MATTER under consideration in this Chapter 7 liquidation case is a Motion for Summary Judgment filed by Hydro Partners, LLC (Hydro) in the above-captioned adversary proceeding commenced by Hydro against Celso R. Gilberti (Debt- or). In its Complaint, Hydro sets forth three claims in three separate counts. The claim in Count I is based on the...
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*665 ORDER DISCHARGING ORDER TO SHOW CAUSE AND ORDER ON CREDITOR RONALD A. SBROCCO AND ANGELA M. SBROCCO’S SECOND MOTION FOR CLARIFICATION OR ORDERS REGARDING AMOUNT OF SECURED CLAIM AND TO DETERMINE WHETHER THE DISCHARGE INJUNCTION HAS BEEN OR WILL BE VIOLATED BY ENFORCEMENT ACTIONS (Doc. Nos. 69 and 70) THE MATTERS under consideration in this Chapter 13 case of Patricia J. Hamilton (Debtor) ar...
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ORDER ON DEBTOR’S MOTION TO DETERMINE ENTITLEMENT TO ATTORNEYS’ FEES AND COSTS AND MOTION BY CITY OF NAPLES AIRPORT AUTHORITY FOR THE ASSESSMENT OF ATTORNEYS’FEES AND COSTS THE MATTERS under consideration in the above styled adversary proceeding in this Chapter 11 case of Jet 1 Center, Inc. (Debtor) are a Motion by City of Naples Airport Authority for the Assessment of Attorneys’ Fees and Costs ...
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ORDER ON TRUSTEE’S MOTION TO ASSUME EXECUTORY CONTRACT FOR SALE OF REAL PROPERTY This matter came before the Court on Trustee Sonya Salkin’s February 28, 2006 Motion to Assume Executory Contract for Sale of Real Property, and to Settle Dispute with José Saal (“365 Assumption Motion”) (CP 113), supplemented by a Memorandum of Law filed March 30, 2006 (CP 133), and on the Trustee’s Veri...
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART TRUSTEE’S MOTION FOR PARTIAL SUMMARY JUDGMENT Pending before the Court in these adversary proceedings are identical motions for partial summary judgment (collectively, “Motion”) filed by the Plaintiff, John Paul Rieser, Chapter 7 Trustee (“Rieser” or “Trustee”), against all remaining defendants (“Defendants”) in all rem...
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ORDER DISMISSING CASE This matter comes before the Court on the Chapter 13 bankruptcy petition of Debtor Dare Afolabi, filed on May 16, 2006. For the reasons stated below, the Court dismisses Debtor’s case. On October 17, 2005, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, P.L. 109-8, 119 Stat. 37 amended the United States Bankruptcy Code to include 11 U.S.C. § 109(h)...
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In this case under chapter 7 of the Bankruptcy Code, the debtor asks that the court waive the payment of her filing fee. Although the debtor’s level of personal income may satisfy the minimum eligibility for status in forma pauperis, the totality of circumstances compels the denial of her request. In United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), the Supreme Court...
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MEMORANDUM OPINION1 J.P. Morgan Trust Company, N.A., is the Indenture Trustee under an Indenture of Trust and filed a general unsecured proof of claim against Debtor A.P. Green Industries, Inc., in the principal unpaid balance of $5,200,000 plus interest of $128,917 through the petition date, plus certain compensation, fees and expenses that had also been incurred as of the date the bankruptcy was...
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MEMORANDUM OF DECISION BACKGROUND AND FACTS On November 14, 2005, Layne and Car-leen Astle (“Debtors”) filed a “family farmer” chapter 12 petition for bankruptcy relief in order to reorganize their dairy operation in Grand View, Idaho. See Doc. No. 1. On February 8, 2006, Debtors filed a “Motion for Determination of Utility Deposit with Idaho Power Company and for Pro...
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ORDER DENYING REQUEST FOR DIRECT APPEAL This is a timely appeal from a final order of the bankruptcy court dismissing appellants’ chapter 13 bankruptcy case, which they seek to appeal directly to the court of appeals. On 20 April 2005, the President signed into law the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23 (“BAPCPA”). Among ot...
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ORDER REGARDING TRUSTEE’S OBJECTION TO CLAIM OF EXEMPTION AND REQUEST FOR TURNOVER and DEBTORS’ MOTION TO CERTIFY QUESTION TO OKLAHOMA SUPREME COURT Issue Presented The issue before the court is whether Debtors may claim their vehicle as exempt subsequent to Trustee’s successful action to avoid the secured creditor’s lien upon that vehicle. Background Debtors filed their Ch...
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ORDER DENYING TRUSTEE’S MOTION TO DISMISS The issue presented in the chapter 13 Trustee’s Motion to Dismiss is whether a chapter 13 petition is prohibited per se, when a prior chapter 13 case is still open, payments under the first plan have yet to be completed, and the debtors have not yet obtained their discharge. Factual and Procedural Background On July 5, 2000, the debtors, Juan an...
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MEMORANDUM OF OPINION These are motions to dismiss filed by the defendants in two separate lawsuits brought by the Official Committee of Unsecured Creditors (the “Committee”) of Verestar, Inc. and affiliates (“Verestar”) in connection with the above-captioned Chapter 11 cases. The Committee has sued the following defendants: American Tower Corporation (“ATC”), Verestar’s parent corpor...
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DECISION DENYING DEBTORS’ MOTION TO AVOID JUDICIAL LIEN OF FIRST NORTH AMERICAN NATIONAL BANK The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a) and 1334, and the standing General Order of Reference in this District. This matter is before the court on Debtors’ Motion to Avoid Judicial Lien of First North American National Bank filed on December 19, 2005 (doc. 14) (“Mo...
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MEMORANDUM OPINION I. INTRODUCTION This Memorandum Opinion is written to address a very important issue to Chapter 13 debtors in general and the several Chapter 13 Debtors referenced above: Should they be allowed to pay their home mortgage lenders directly instead of remitting the necessary funds to the trustee for distribution to the mortgagees? Debtors Perez, Lanier, Frias, Bryan, ...
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AMENDED MEMORANDUM OPINION ON TRUSTEE’S OBJECTION TO EXEMPTION Harold and Christine Kimble (“Debtors”) hold a remainder interest in property located at 35900 Gundy Ridge Road, Scio, Ohio (“Property”) and occupy the Property under an oral lease agreement with the life tenant, Dessie Kimble — Mr. Kimble’s mother. The issue before the Court is whether the Debtors may exempt their remaind...
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Memorandum of Decision JPMorgan Chase Bank’s motion for relief from stay is before me on a stipulated record. The only issue presented is whether cause for relief from stay exists because the debtors’ residence, mortgaged to the bank, was “sold” at foreclosure before bankruptcy, rendering cure and reinstatement within Chapter 13 via § 1322(b) and (c)(1) impossible.1 Facts Earl and Gwendy McKinney...
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OPINION This matter comes before the Court upon an involuntary petition filed February 17, 2006, under Chapter 7 of the Bankruptcy Code by Charter One Bank, N.A. (“Petitioning Creditor”) against the alleged debtor, DemirCo Group (North America), L.L.C. (“Group”). Group has filed an Answer and Motion to Dismiss the involuntary petition. Factual Background Petitioning Creditor and Group have stipul...
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OPINION GRANTING DEFENDANTS’ MOTIONS TO DISMISS COMPLAINT Before the Court are several motions filed by the defendants in the above captioned adversary proceeding, seeking to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), the complaint (the “Complaint”) as filed against them by Enron Corporation (“Enron”). Pursuant to various stipulations and orders entered by the Court, certain of the defen...
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ORDER APPROVING REAFFIRMATION AGREEMENT A discharge hearing pursuant to 11 U.S.C. § 524(d) was held on April 26, 2006, for the court to consider whether to approve the reaffirmation agreement between the chapter 7 debtors, Chester Arthur Donald and Mary Scales Donald, and Coastal Federal Credit Union (“Coastal”). After the hearing, the court gave the debtors and Coastal additional time to...
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MEMORANDUM OPINION This case is before the court on the debtors’ objection to the amended proof of claim of Fort Belvoir Federal Credit Union. The amended proof of claim is in the same principal amount as the original claim but adds postpetition interest and attorney’s fees. The debtors object to the postpetition interest and attorney’s fees. For the reasons stated below, the objectio...
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MEMORANDUM OPINION This chapter 7 case presents the question of whether a class proof of claim may be filed in this case. Joshua Ruiz, Eric Evangelista, Edwin Potts, Jr., and Frank Seklecki, through their attorney, filed a proof of claim on behalf of themselves and a prospective class consisting of all persons who, from May 5, 1992 through May 4, 1998, were enrolled in a course of study, educ...
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Vernon Carl Hedquist appeals the bankruptcy court’s 1 order dismissing his Chapter 11 case pursuant to 11 U.S.C. § 1112(b) and imposing a 180-day bar against refiling a Chapter 11 case pursuant to 11 U.S.C. § 349. We have jurisdiction over this appeal from the final order of the bankruptcy court. See 28 U.S.C. § 158(b). For the reasons set forth below, we affirm. ISSUE Mr. Hedquist lists ...
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SUPPLEMENTAL OPINION REGARDING ANNULMENT OF AUTOMATIC STAY This supplements the court’s oral decisions of January 5, 2006, and January 20, 2006, regarding the Motion Seeking Annulment of Automatic Stay and Co-Debtor Stay or for a Determination That No Stay Exists filed by GRP Realty, LLC (“GRP”). *367 Claiming that through a foreclosure sale it owns the residence occupied...
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MEMORANDUM OPINION The matter before the Court in this case is the Final Application by Virgil D. Rodgers II, Attorney At Law, for Debtors for Allowance of Compensation for Services Rendered and Reimbursement of Actual and Necessary Expenses for the Period of April 2004 Through June 2005 (“Application”) and the objection of the United States Trustee to the Application. The Court has j...
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MEMORANDUM OPINION BEFORE THE COURT are the Trustee’s Motion for Turnover of Property of the Estate, filed March 8, 2006; the Debt- or’s objection thereto, filed March 28, 3006; the Trustee’s Objection to Claimed Exemptions, filed May 4, 2006; the Trustee’s Amended Objection to Claimed Exemptions, filed May 15, 2006; the Debtor’s Motion to Strike Trustee’s Amended Objection to Claimed Exemption...
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MEMORANDUM OPINION on Tekena USA’s “Motion to Vacate TRO and Appointment of Receiver” Teknek LLC filed a Chapter 7 bankruptcy case on July 12, 2005, 1 disclosing $73.22 in total assets and total liabilities of $3,788,609.57. Over ninety-nine percent of these liabilities, or approximately $3,779,000, belongs to a single unsecured judgment creditor, Systems Division, Inc. (“SDI”)...
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MEMORANDUM DECISION REGARDING MOTION FOR RELIEF FROM THE AUTOMATIC STAY Before the court is a motion for relief from the automatic stay. Scripps GSB I, LLC (“Scripps GSB”), wants to complete a non-judicial foreclosure of its first priority trust deed against a commercial building known as the Guarantee Savings Building and an adjacent parking structure (hereinafter, the “Guarantee Buildin...
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*829 MEMORANDUM OPINION ON CONFIRMATION OF CHAPTER 13 PLAN This case presents a novel issue in this district — -whether the interest rate provided in a Chapter 13 plan to the claim of a creditor with a purchase money security interest in a motor vehicle, as set forth in the Supreme Court’s decision in In re Till v. SCS Credit Corp., 541 U.S. 465, 124 S.Ct. 1951, 15...
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OPINION This matter is before the Court on the motion for relief from the stay filed by FORD MOTOR CREDIT COMPANY (FMCC) and the objection by RICHARD E. BARBER, the Chapter 7 Trustee (TRUSTEE). The issue is whether a creditor that mistakenly releases its lien on a certificate of title to a motor vehicle and returns the title to the owner causes its security interest to become unperfec...
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MEMORANDUM OF DECISION Before this Court is the “Debtor’s Motion to Require Trustee to Abandon Burdensome Property” filed by Jule A. Guido (the “Debtor”). The case presents yet another gnarl in a long line of knotty problems relating to the intersection between the Bankruptcy Code 1 and the Massachusetts Homestead Statute. The permutation now before the Court is this: if a ...
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ORDER DENYING DEBTOR’S MOTION FOR AUTHORITY TO REJECT COLLECTIVE BARGAINING AGREEMENTS This proceeding came on before the Court for an evidentiary hearing on the motion of the Debtor under 11 U.S.C. §§ 1113 and 365(a), for authority to reject its collective bargaining agreements with the Air Line Pilots Association, International (“ALPA”), the Association of Flight Attendants-CWA, AFL-CIO...
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OPINION I. INTRODUCTION In the course of administering a bankruptcy docket, a bankruptcy judge is obliged, from time to time, to decide whether a debtor is seeking to abuse the spirit of the Bankruptcy Code and is acting in bad faith. If such a finding is made, a court will deny the debtor access to the rehabilitative provisions of the Code and will dismiss the debtor’s b...
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AMENDED MEMORANDUM OF DECISION AND ORDER TABLE OF CONTENTS I. Introduction...............................................................210 II. Preliminary Matters........................................................211 III. Factual Background........................................................211 IV. Discussion.....................................................
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MEMORANDUM OPINION I. INTRODUCTION In this case, I am called upon to interpret and apply 11 U.S.C. § 524(m). Section 524(m) is one of the new provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23 (2005) (“BAPC-PA”). For the reasons set forth below, I will exercise my authority under 11 U.S.C. § 524(m) (1) to disa...
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MEMORANDUM OF DECISION Before me is the defendants’ motion seeking an order compelling arbitration of all issues raised in the plaintiffs’ six-count complaint. The plaintiffs, in turn, ask that all counts be tried in this court. I conclude that only as to the count seeking damages for the defendants’ alleged breach of the automatic stay (Count I) have the plaintiffs met their burden t...
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MEMORANDUM DECISION I. Preliminary Statement This matter comes before the Court via Trustee’s “Objections to Claimed Exemptions” and “Amended — Trustee’s Objections to the Claimed Exemptions and Notice of Bar Date to Respond” filed December 27, 2005 (collectively “Objections”). The Trustee objected, inter alia, to the claimed homestead exemption for the property locate...
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Related to Dkt. No. 11, Motion for Partial Summary Judgment Filed on behalf of Debtors 1 MEMORANDUM OPINION 2 The motion before the court is Debtors’ motion for partial summary judgment with respect to a Complaint Seeking Determination of Secured Status filed on behalf of Countrywide Home Loans, Inc. (“Countrywide”). Countrywide is the servicing agent for Chapel Mortgage Corporation, the ...
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ORDER ON (1) TRUSTEE’S MOTION FOR SUMMARY JUDGMENT AND (2) DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT THIS CASE came before the Court for hearing to consider (1) the Motion for Summary Judgment filed by V. John Brook, as Chapter 7 Trustee, and (2) the Motion for Summary Judgment filed by the Defendants, Bob Mark Mitchell and Michael Mitchell. The Debtor (Rachel Mitchell) and the Defenda...
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OPINION RE: EXEMPTION OF HOMESTEAD PROCEEDS The issue here is whether a debtor must reinvest homestead proceeds within the time required by the state exemption statute in order for them to remain exempt under Bankruptcy Code § 522. 1 The Court concludes that Debtors’ homestead proceeds that were exempt as of the petition date remain exempt notwithstanding the Arizona exemption statute’s requi...
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*504MEMORANDUM OPINION GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS AND RELIEF FROM THE AUTOMATIC STAY TO THE MARYLAND PORT ADMINISTRATION The Chapter 11 debtor is a tenant holding over land owned by the State of Maryland after the expiration and nonrenewal of a long-term lease. The instant Chapter 11 case was filed to prevent the State from evicting the debtor from the property. The debtor filed t...
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*830 MEMORANDUM-OPINION Both of these matters came before the Court on Objections to the Chapter 13 Plans of Debtors Barry W. Soards and Nancy A. Soards (“the Soards”) and Arnold L. Morrison and Patricia L. Morrison (“the Morrisons”) by Creditor Ford Motor Credit Company (“Ford”). Following hearings on the Objections and consideration of post-hearing briefs of the parties, th...
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MEMORANDUM ON DEBTOR’S MOTION PURSUANT TO 11 U.S.C. § 362(h) FOR SANCTIONS, DAMAGES, AND PUNITIVE DAMAGES AS AGAINST D.J. QUIRK, INC. AND UNIVERSAL UNDERWRITERS GROUP [# 105] AND CREDITOR D.J. QUIRK, INC. AND UNIVERSAL UNDERWRITERS GROUP’S OPPOSITION TO DEBTOR’S MOTION [# 109] This matter came before the Court for hearing on Debtor’s Motion Pursuant to 11 U.S.C. § 362(h) for Sanctions, Da...
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MEMORANDUM OPINION This matter is before the court on the Plaintiff/Trustee’s Motion for Summary Judgment filed herein on April 5, 2006. The Defendants filed a Memorandum in Opposition and their Motion for Summary Judgment on April 14, 2006. The court conducted a hearing on the motions on May 4, 2006, and set a schedule for submission of briefs on the issue of whether a properly recor...
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MEMORANDUM OF DECISION Sustaining Objection to Chapter 13 Plan Green Tree Servicing, LLC, as successor in interest to Green Tree Financial Servicing Corporation (“Green Tree”) has objected to the confirmation of the chapter 13 Plan filed by Cynthia Mayer-Myers’ (the “Debtor”), alleging that the Plan violates the anti-modification directive set forth in § 1322(b)(2).1 The Debtor contends it is n...
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OPINION 1 Before the Court are the Motions of Abe Briarwood Corporation (“Briarwood”) to *266 Compel the Debtors to Comply with the Stock Purchase Agreement and to Permit it to Release Certain Funds Held by it in Escrow. The IHS Liquidating LLC (the “LLC”) opposes both Motions and has asserted counterclaims against Briarwood. After considering the evidence pres...
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MEMORANDUM OPINION DENYING THE MOTION OF BALTIMORE COUNTY, MARYLAND, FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM Baltimore County, Maryland, filed the instant motion for allowance and payment of an administrative expense claim against the proceeds of sale of all of the Chapter 11 debtor’s assets, to which the debtor’s liquidating agent objected. For the reasons stated, t...
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OPINION REGARDING REORGANIZED DEBTORS’ OBJECTION AND REQUEST FOR ENFORCEMENT OF AGREEMENT BETWEEN DOBIE PROPERTIES, LLC AND MCI WORLDCOM NETWORK SERVICES, INC. Before the Court is Dobie Properties, LLC’s (“Dobie”) Response to Reorganized Debtors’ Objection and Request for Enforcement of Agreement Between Dobie and MCI, filed in the chapter 11 cases of the above-referenced debtors and reor...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Motion for Waiver of Budget and Credit Counseling (“Waiver Motion”) filed by Jocelyn “Joy” S. Tulper and Leon Tul-per (“Debtors”) on April 10, 2006 (Docket # 14). The Court, having reviewed the Motion and the within case file, and having heard the testimony of the Debtors and arguments of counsel, makes the following f...
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MEMORANDUM OPINION I. INTRODUCTION The matters before the Court are cross-motions for Partial Summary Judgment brought by Ben B. Floyd, the Chapter 7 Trustee (the Trustee), as the plaintiff, and certain creditors, as the defendants. The parties request the Court to adjudicate whether certain transfers of letters of credit proceeds (the LOC Transfers) made by Cooper Manufacturing Corporation (Coop...
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DECISION AND ORDER The matter before the court is the complaint of the Trustee to sell real estate free and clear of liens and co-owner’s interest pursuant to 11 U.S.C. § 363(h) and Federal Rule of Bankruptcy Procedure 6004. On September 8, 2005, the court conducted a hearing on the complaint, and the parties agreed to a continuance to file a stipulation of facts and supporting briefs add...
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MEMORANDUM OPINION The matter before the Court is the hearing on confirmation of Clyde and Deborah Wilburs’ (“the Wilburs”) proposed chapter 13 plan. Specifically, the Court is called upon to determine whether the term “unsecured creditors” in 11 U.S.C. § 1325(b)(1)(B) 1 refers to non-priority unsecured creditors only. The Wilburs’ position is that the term “unsecured creditors,” as found in ...
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MEMORANDUM ORDER AND OPINION This contested matter is before the Court on the Objection to Confirmation filed by Universal Acceptance Corporation (UAC). 1 The issue is whether a creditor can require, pursuant to certain provisions of 11 U.S.C. § 1325(a) added by the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), 2 that a Chapter 13 debtor pay more than the purchase price ...
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DECISION AND ORDER The debtors filed a petition for relief under chapter 13 of the United States Bankruptcy Code on February 15, 2006. The petition was not prepared on the official form (Official Form 1), but on a custom-designed form used by their counsel. Because this form did not correspond with the official form, the court issued an order requiring the debtors to file an amended petition us...
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OPINION REGARDING MOTION FOR ORDER ON ATTORNEY-CLIENT PRIVILEGE Before the court is the Motion of Meade Malone, Official Liquidator for Gold & Ap-pel Transfer S.A., for Order on Attorney-Client Privilege (D.E. No. 40, filed January 5, 2006), in which Meade Malone, the Official Liquidator for Gold & Appel Transfer S.A. (“Gold & Appel”), seeks an order declaring that he controls the att...
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DECISION RE MOTION OF GRP REALTY, LLC FOR RELIEF FROM AUTOMATIC STAY AND OTHER RELIEF The instant case is the third bankruptcy case that has interfered with the efforts of GRP Realty, LLC (“GRP”) to obtain possession of real property located at 7247 15th Place, NW, Washington, D.C. GRP claims to own the property by reason of a foreclosure sale pursuant to a deed of trust which encumbered the ...
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DECISION REGARDING MOTION TO DISMISS WITH PREJUDICE The chapter 13 trustee has filed a motion to dismiss the debtor’s case pursuant to 11 U.S.C. § 109(h) due to the debtor’s failure to obtain credit counseling of the kind described in § 109(h) on a date prior to the date on which the debtor filed his petition. 1 The debtor opposes the trustee’s motion and suggests in the al...
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DECISION REGARDING DEBTORS RESPONSE TO ORDER TO SHOW CAUSE On March 21, 2006, the court entered an order denying the debtor’s request for a temporary exemption from the pre-petition date credit counseling requirement set forth in 11 U.S.C. § 109(h) (D.E. No. 12). Based on the debtor’s apparent failure to fulfill the requirement set forth in § 109(h), the court ordered the debtor to sh...
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MEMORANDUM OPINION Greenberg Traurig, LLP, filed on January 17, 2006, its Ninth Monthly And Final Fee Application Of Greenberg Traurig, LLP For Allowance Of Compensation And For Reimbursement Of Disbursements As Counsel To The Debtor And Debtor In Possession. 1 Wachovia Bank, N.A. and Wachovia Bank, N.A. d/b/a South Trust Bank filed an objection on February 7, 2006. 2...
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*249 OPINION AND ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT Section 273 of the New York Debtor & Creditor Law (“NYDCL”), available to a trustee through 11 U.S.C. § 544(b), permits the trustee to avoid a constructively fraudulent obligation. The issue presented by the pending motion is whether the trustee can object to a proof of claim based on a “fraudulent obligation” wh...
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*209 MEMORANDUM OF DECISION Before the Court is the “Trustee’s Objection to Claim of the Bank of Western Massachusetts and Request for Disgorgement of Overpayment” (the “Objection”). The Objection is filed by Steven Weiss, the Chapter 7 trustee (the “Trustee”) of Gary P. Mallows (the “Debtor”). The Bank of Western Massachusetts (the “Bank”) opposes.1 At first blush, resolution of the dispute ap...
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REASONS FOR DECISION Entringer Bakeries, Inc. (“Debtor”), filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code 1 on May 29, 2001 (“Petition Date”), and on that day an order for relief was duly entered. The case was subsequently converted to a case under Chapter 7. Aaron E. Caillouet is the duly appointed, qualified and acting trustee. ...
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MEMORANDUM OPINION THIS MATTER is before the Court on the Chapter 13 Trustee’s Objection to Confirmation of Debtors’ Plan (“Objection”). At issue is whether Debtors should be permitted to make payments on two debts secured by personal property directly to those creditors. The Chapter 13 Trustee urges the Court to adopt a general rule that would require all debts secured by personal pr...
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MEMORANDUM DECISION The matter before the Court is the affirmative defense raised by each Defendant in his Motion to Dismiss that the statute of limitations set forth in 11 U.S.C. § 546(a) expired before the adversary proceeding was filed. A hearing was held on the Motion to Dismiss on February 1, 2006. At that time, the Court took the matter under advisement and requested written argument from ...
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ORDER THIS MATTER is before the Court on the Objection to Confirmation and Request for Dismissal of Case (the “Objection”) (Doc. No. 14). The Chapter 13 Trustee (the “Trustee”) filed the Objection on March 2, 2006. A hearing was held on the Objection on May 9, 2006. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b), as well as Rule 1070-1 of the Local Ru...
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MEMORANDUM OPINION This opinion is with respect to the defendants’ Thomas E. Morris, David Bost, Robert Pacos, Paul Dulfer, David James, Joe Patten, Douglas N. Bowne, and John Kelly’s motion (Adv.Doc. # 17) to dismiss the Chapter 7 trustee’s complaint against them. For the reasons discussed below, the Court will deny the motion. BACKGROUND Scotty’s, Inc. is the wholly-owned subs...
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MEMORANDUM OPINION This matter comes before the court on the motion of the Chapter 13 Trustee to dismiss this bankruptcy case. The Trustee argues that the case should be dismissed because it will take over 60 months to complete, and because the plan is in material default since it will not complete in compliance with the confirmed terms. The court has reviewed the papers submitted by the partie...
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348 B.R. 720 (2006) In re MIRANT CORPORATION, et al., Debtors. No. 03-46590-DML-11. United States Bankruptcy Court, N.D. Texas, Fort Worth Division. June 23, 2006. *721 Craig H. Averch, Michelle C. Campbell, Paul E. Godinez, Ronald Kevin Gorsich, Kerri A. Lyman, White & Case, L.L.P., Los Angeles, CA, Douglas P. Baumstein, Howard S. Beltzer, Thomas M. Biesty, Paul B. Carberry, Vincent R. Fitzp...
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AMENDED MEMORANDUM OPINION The above cases came before this Court for confirmation of the respective Debtors’ chapter 13 plans. 1 All these cases were filed after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) became effective. The chapter 13 Trustee filed an Objection to Confirmation with respect to each proposed plan. This Court has jurisdi...
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MEMORANDUM DECISION The matter before the Court is the United States Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. § 707(b) filed April 28, 2005 in which the United States Trustee alleges that the Debtor, Robert Hundley Almond, Jr., understated his and his non-filing spouse’s joint income on Schedule I “based upon a comparison of their combined earnings for 2002, 2003 and 2004.” (Mot. Dismi...
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ORDER This matter is before the court on the Chapter 13 trustee’s motion for confirmation. On March 30, 2006, the court conducted a hearing in Wilson, North Carolina. BACKGROUND Centrix Funds Series, CLPF (“Centrix”) is a creditor in the debtors’ case, secured by a 2003 Mitsubishi Gallant, with a claim in the amount of $12,530.25. The debtors purchased the vehicle on May 31, 2005 and fi...
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MEMORANDUM OPINION This case comes before the Court on a motion to compel turnover of insurance proceeds filed by U.S. Bank N.A. (“Bank”). The insurance proceeds at issue derive from the former residence of the Debtors against which the Bank held a deed of trust. The Bank foreclosed its deed of trust last year, unaware that the property had been destroyed by a fire. The Bank now seeks...
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MEMORANDUM DECISION REGARDING OBJECTION TO PRIORITY CLAIM OF JEFF MISHKIN AND COUNTER-MOTION TO ALLOW ADMINISTRATIVE CLAIM OF MARCUS & MILLICHAP, INC. The Debtor objects to a proof of claim filed by Jeff Mishkin on behalf of Marcus & Millichap, as a priority claim in the amount of $125,000 (the “Mishkin Claim”). The Creditors Committee joins the Debtor in objecting to the Mishk...
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ORDER SUSTAINING OBJECTION TO CONFIRMATION The Objection to Confirmation filed by McEntire Farms, Inc. (“McEntire”) was heard on June 1, 2006. John Aldworth appeared on behalf of McEntire, and the owners of McEntire were also present. John Jackson appeared on behalf of the Debtors who were also present. Jeffrey Ellis appeared on behalf of the Chapter 13 Trustee. This is a c...
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MEMORANDUM OF OPINION Duke Realty Limited Partnership filed two claims in this case for lease rejection damages, each in the principal amount of $1,897,070.02, and the trustee objected to the claims. The parties now agree that Duke has one claim in the amount of $622,738.20. 1 This opinion addresses the remaining dispute, which is whether Duke holds a perfected secured clai...
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MEMORANDUM OF DECISION Before the Court is the “Debtor’s Objection to Proof of Claim filed by Midland States Life Insurance Company” (the “Objection”) filed by Donna M. Ellis (the “Debtor”). The contested issue is whether a default judgment obtained against the Debtor in state court may be collaterally attacked, through the bankruptcy claims objection process, on grounds that the unde...
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Eastern Savings Bank fsb (“Eastern”) appeals from the bankruptcy court’s October 21, 2005, order denying relief under Rule 60(b) of the Federal Rules of Civil Procedure (“Rule 60(b)”) from three orders which had the effect of modifying and bifurcating the $195,340 secured claim asserted by Eastern. Eastern argues that the bankruptcy court erred in denying relief because the underlying orders were...
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This is an appeal from an order of the bankruptcy court allowing a claim by the Estate of Victor Litzinger in the amount of $130,553.38. In allowing the claim the bankruptcy court held that debtor had participated in the conversion of at least that amount of Victor’s probate estate’s assets. We affirm in part and reverse in part. BACKGROUND 1 Victor Litzinger had two heirs, hi...
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MEMORANDUM OPINION Steven Edward Shipman and Kimberly Sue Shipman (the “Debtors”) filed a motion for appropriate relief to purchase or redeem the non-exempt portion of their principal residence from Robert W. Trum-ble, the Chapter 7 trustee (“Trustee”). The Debtors contend that the value of the real property is about $126,900, as stated in their August 7, 2000 petition, and seek to purchase the ...
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ORDER RE: DETERMINATION OF DISCHARGEABILITY OF STUDENT LOAN DEBT This matter came before the undersigned on June 13, 2006 for trial on the Complaint to Determine Dischargeability of Debt. Steven R. Hahn appeared for Debtor/Plaintiff Maria Dawn Nelson. David P. Miller appeared for Defendants TG Collections and Texas Guaranteed Student Loan Corporation. After the presentation of evidence and argu...
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DECISION ON MOTION FOR PERMANENT INJUNCTION (THE AMERICA CHANNEL) In this adversary proceeding under the umbrella of the approximately 230 jointly administered chapter 11 cases of Adelphia Communications Corporation and its subsidiaries (the “Debtors”), the plaintiff-Debtors move, pursuant to sections 362(a)(3) and 105(a) of the Bankruptcy Code, for a declaratory judgment holding that...
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OPINION 1 Introduction David E. Zofko (“Debtor” or “Mr. Zof-ko”) filed a voluntary Petition under Chapter 7 of the Bankruptcy Code on July 7, 2004. The Cadle Company (“Cadle”) holds a judgment against the Debtor which was originally entered by Cadle as assignee of National City Bank, Northeast, in Trum-bell County, Ohio. Cadle’s judgment is the basis for its proof ...
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MEMORANDUM OF DECISION Before the court are four cases presenting an identical issue for decision, that is, whether a debtor may be a debtor in a case under Chapter 13 when that debtor may not receive a discharge upon consummation of a confirmed plan. The cases come before the court on the Chapter 13 Trustee’s Motions to Dismiss. The Loop case presents one additional issue. Section 1...
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MEMORANDUM OPINION AND NOW, this 27th day of June, 2006, upon consideration of (a) the motion by the United States Trustee (hereafter “the Trustee”) to dismiss the instant Chapter 7 bankruptcy case of Anita and Kevin Har-shaw, the above-captioned debtors *520 (hereafter “the Debtors”), pursuant to 11 U.S.C. § 707(b), which motion the Court has already granted by Orde...
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Elliot M. Rowlands (the “Debtor”) appeals from an order of the United States Bankruptcy Court for the District of Massachusetts (the “bankruptcy court”) dated November 9, 2005, granting summary judgment in favor of Arthur J. Fraser and AJF Financial Corp. (the “Appellees”) and denying a discharge to the Debtor pursuant to 11 U.S.C. § 727(a)(2)(A). In ruling for the Appellees, the bankruptcy cou...
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ORDER GRANTING DEPENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT THIS MATTER comes before the Court on the Cross-Motions for Summary Judgment filed by Plaintiff, Jeffrey L. Hill (“Plaintiff’ or “Trustee”) and Defendant WFS Financial Services, Inc. (“Defendant”) on March 3, 2006. The Court finds and concludes as follows: Federal Rule of Civil Procedure 56(...
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MEMORANDUM OPINION Carl William Franklin and Shelly Marie Nichols-Franklin (the “Debtors”) object to *816 the secured classification of Claim Number 9 filed by Eastern Panhandle Community Federal Credit Union (the “Credit Union”) in the amount of $3,747. The Credit Union asserts that Claim Number 9 is secured under a cross-collateralization clause in two other security agreements that the D...
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MEMORANDUM OF DECISION REGARDING MOTIONS FOR DETERMINATION AND DECLARATORY JUDGMENT AS TO CONTINUANCE AND EXISTENCE OF THE AUTOMATIC STAY AND MOTIONS TO REIMPOSE AUTOMATIC STAY AS TO ALL CREDITORS. PURSUANT TO 11 U.S.C. § 105(a) This matter having come before the Court on Motion for Determination and Declaratory Judgment as to Continuance and Existence of the Automatic Stay with respect t...
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MEMORANDUM OF OPINION Introduction Before the Court is a motion (the “Motion”) by Northwest Airlines Corporation *314 and its affiliates (the “Debtors”) to reject a collective bargaining agreement and change the terms and conditions of employment of its flight attendants. The authorized representative of the flight attendants, the Professional Flight Attendants Associati...
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By order of the Bankruptcy Appellate Panel, the precedential effect of this decision is limited to the case and parties pursuant to 6th Cir. BAP LBR 8013-1(b). See also 6th Cir. BAP LBR 8010-1(c). File Name: 06b0014n.06 BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT In re: RICHARD D. HINES, ...
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FEDERMAN, MAHONEY and McDONALD, Bankruptcy Judges. This is an appeal from an Order of the United States Bankruptcy Court for the Eastern District of Arkansas 1 issued on November 29, 2005, in which the court denied the Debtor’s Motion to Convert or Dismiss. We affirm. FACTUAL BACKGROUND Debtor Eula Mystery Willis is the sole owner of three corporate entities: Mystery Properties, Inc., a r...
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MEMORANDUM OPINION AND ORDER Manuel Lara, Jr. and Margaret G. Lara (the “Debtors”) filed this Chapter 13 bankruptcy case on October 31, 2005. At issue here is confirmation of the Debtors’ proposed Chapter 13 plan of reorganization (the “Plan”). The Chapter 13 trustee objects to confirmation of the Plan on the grounds that the Plan fails to satisfy the disposable income test of § 1325(b)(1)(B)...
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MEMORANDUM-OPINION THIS ADVERSARY PROCEEDING is before the Court on the Motion of K & B Capital, LLC, Robert Kattula and Maria Kattula to Dismiss Complaint (the “Instant Motion”). For the reasons discussed below, the Court denies the Instant Motion. The Defendant-movants make several arguments as to why the Complaint of Plaintiff should be dismissed in its entirety or at least as to ...
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RULING ON DEBTOR’S MOTION FOR DISTRIBUTION TO WEBSTER BANK, N.A. I. The matter before the court is a motion entitled “Debtor’s Motion for an Order of *39 Distribution of Secured Funds to Webster Bank, N.A.” (“the motion”), and the objections thereto of creditor Ralph D. Govoni, Sr. and Neil Ossen (“the trustee”), trustee of the debtor’s Chapter 7 bankruptcy estate. A...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court upon a complaint to avoid a fraudulent transfer pursuant to 11 U.S.C. §§ 544(b) and 548, avoid a preferential transfer pursuant to 11 U.S.C. § 547, and recover property pursuant to 11 U.S.C. § 550 (the “Complaint”) filed by Keith Eickert Power Products, LLC, Post-Confirmation Estate (“Plaintiff’). The Court ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER United States District Court for the Northern District of New York (Hurd, D.J.), dated January 31, 2003 (“District Court Decision”). See Exhibit A of the Joint Exhibit Supplement, received July 27, 2005. 1 The District Court Decision vacated the Order entered on February 27, 2001 (Exhibit 2), and the...
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OPINION ON DEBTOR JOHN JOSEPH FERNANDES’ MOTION TO VOLUNTARILY DISMISS HIS CHAPTER 13 CASE On April 16, 2005, debtors John Joseph Fernandes and Priscilla Fernandes filed a joint chapter 13 petition. On February 1, 2006, after being convicted in Nevada state court of embezzlement of $253,000 from his employer Stone Connection LLC, and after being ordered to pay Stone Connection $253,000 in restitu...
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MEMORANDUM DECISION OVERRULING OBJECTIONS TO DESIGNATION OF CHAPTER 11 FUNDS AS PART OF DEBTOR’S ESTATE IDI Construction Company, Inc. (the “Debtor” or “IDI”) was a general contracting and construction management company that formerly operated in the New York metropolitan area. Its principals, Ted Kohl (“Kohl”) and James Stumpf (“Stumpf’), diverted substantial amounts of the debtor’s fund...
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Memorandum Opinion Plaintiffs earlier motion for partial summary judgment was granted, and judgment was entered against three of the defendants (Braddock Management, L.P.; Bainbridge Management, L.P.; and Bainbridge Management, Inc. — collectively “the Management Companies” or “Defendants”) 1 on the issue of liability under three counts of the complaint — Count I, breach of...
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ORDER TO SHOW CAUSE On October 14, 2005, John W. Askintow-icz filed a bankruptcy petition on behalf of Donald Frances Sorrell (the “Debtor”), charging $1,500 for his legal services. Mr. Askintowicz, however, failed to file the Debtor’s bankruptcy schedules, the statement of financial affairs, and the disclosure of attorney compensation. Mr. Askintow-icz also failed to appear at the Debtor’s mee...
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*21 MEMORANDUM OF DECISION ON MOTION OF OPTION ONE MORTGAGE CORPORATION TO CONFIRM THAT AUTOMATIC STAY IS NOT IN EFFECT AND ON MOTION OF WACHOVIA BANK, NA. FOR RELIEF FROM THE AUTOMATIC STAY AND FOR IN REM RELIEF Before the Court are two discrete but related motions concerning the automatic stay. In one, Option One Mortgage Corporation (“Option One”), as servicing agent for Wachovia Bank, N...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Motion for Contempt pursuant to which Mezal Al-Jiboury (the “Debtor”) seeks a determination that the Massachusetts Department of Transitional Assistance (the “DTA”), which administers the Commonwealth’s food stamps program, violated the discharge injunction imposed by 11 U.S.C. § 524 by forwarding to him, post-discharge, a...
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ORDER RE: OBJECTION TO CONFIRMATION OF DEBTORS’ SECOND AMENDED PLAN This matter is before the Court on the Objection (the “Objection”) of Daimler-Chrysler Fin. Servs. Amers. LLC sbmt DaimlerChrysler Servs. NA LLC (“Daim-lerChrysler”) to confirmation of the Debtors’ proposed second amended chapter 13 plan (the “Plan”). On March 30, 2006, the Court held a hearing on the Objection. The Objec...
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ORDER This matter comes before the Court for confirmation of a proposed Chapter 13 plan filed by Yvonne Jefferson Fleming and Kirt Levern Fleming (“Debtors”) and the objection of Debtors’ Chapter 13 Trustee (“Trustee”). Based upon the facts of the case and applicable law, this Court makes the following Findings of Facts and Conclusions of Law. 1 *446 FINDINGS OF FACT 1. Debtors were d...
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ORDER CONFIRMING TERMINATION OF THE AUTOMATIC STAY This matter comes before the Court upon a Request for an Order Confirming Termination of the Automatic Stay (“Request”) filed by National City Home Loan Services, Inc. (“National City”). The Request was served on all creditors and parties in interest. National City seeks an order confirming termination of the automatic stay pursuant t...
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JUDGMENT THIS MATTER came on for trial on the 26th day of April, 2006. The issues having been duly considered and a decision having been duly rendered, for reasons set forth in the Memorandum Opinion filed concurrently herewith, IT IS HEREBY ORDERED that Custom Heating & Ar, Inc. is entitled to recover the sum of Five Thousand Dollars from Theodore R. Andress, Jr., also known as Ted ...
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MEMORANDUM-DECISION AND ORDER Currently before the court are competing motions for summary judgment regarding the objection of Debtor Paul S. Hudson (“Debtor”) to the claim of the Internal Revenue Service (“IRS”). The court has jurisdiction pursuant to 28 U.S.C. §§ 157(a)(b)(l), (b)(2)(B) and 1334. FACTS The facts surrounding the motions may be gleaned from the parties “Joint St...
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MEMORANDUM OPINION SUPPLEMENTING ORDER CONFIRMING CHAPTER 13 PLAN At a hearing on March 9, 2006, this Court confirmed the debtors’ Chapter 13 plan over the objections of creditors Nu-vell Financial Services Corporation (“Nu-vell”) (Doc. No. 18) and Wells Fargo Financial Acceptance (“Wells Fargo”) (Doc. No. 20) (collectively the “Creditors”). 1 An order confirming the debtors’ C...
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MEMORANDUM DECISION I. INTRODUCTION Mission Federal Credit Union (“MFCU”) is a creditor with a claim secured by a non-purchase money lien on Virginia Quevedo’s (“Debtor”) 1999 Ford Explorer. Debtor incurred this secured debt within the 1-year period preceding the petition date. MFCU objects to Debt- or’s plan of reorganization (“Plan”) because it proposes to bifurcate and cram down MFCU’s c...
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MEMORANDUM OF DECISION ON COMPLAINT AND SANCTIONS REQUESTS By its complaint in this adversary proceeding, the Plaintiff, DCFS Trust (“DCFS”), seeks a determination that its claim for damages against the Debtor, Neil Goldstein (“the Debtor”), arising from the Debtor’s failure to return a leased car to DCFS, is excepted from discharge under 11 U.S.C. § 523(a)(2)(A) and (a)(6). Over *415 the c...
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MEMORANDUM OPINION The matters before the Court are Plaintiff Buffalo Molded Plastics, Inc.’s Motion for Summary Judgment and Defendant Omega Tool Corp.’s Motion for Partial Summary Judgment. For the reasons expressed below, both motions for summary judgment shall be denied. 1 FACTS Plaintiff Buffalo Molded Plastics, Inc. (“Buffalo Molded”) ...
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MEMORANDUM DECISION The matter before the Court is the continued hearing on confirmation of the Debtors’ proposed chapter 13 plan. Specifically, the Court is called upon to determine whether the “applicable commitment period” in 11 U.S.C. § 1325(b)(1)(B) 1 is a monetary or temporal requirement. As this matter presents an issue of first impression in light of the Bankruptcy Abuse Prevention an...
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*901 ORDER ON UST’S MOTION TO RECONSIDER ENTRY OF THE ORDER STRIKING THE CASE I. Background The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”), applicable to bankruptcy cases filed on and after October 17, 2005, made significant changes in how, when and to what extent putative debtors could obtain debt relief. Among those changes is the addition of 11 U.S.C. §...
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MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ON DEFENDANTS’ MOTION TO DISMISS By her complaint in this adversary proceeding, the Plaintiff, Micaela Burke, seeks a determination that the liability of *231 Defendant and Debtor Joseph Neronha to her for sexual harassment, as adjudicated by the Massachusetts Commission Against Discrimination (“MCAD”), is excep...
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MEMORANDUM OPINION 1 Before the Court is the Motion of Jeof-frey L. Burtch, the chapter 7 trustee (the “Trustee”) to employ a real estate broker to sell the residence (the “Property”) owned by Victor and Joey Perez (the “Debtors”). After consideration of briefs submitted by the parties and for the reasons set forth below, the Court will deny the Motion conditioned on the pa...
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MEMORANDUM OPINION 1 Before the Court is the Objection of the chapter 7 trustee to the exemption claimed by Nancy L. Weber (the “Debtor”) in her residence located at 401 Crazy Lane, Re-hoboth Beach, Delaware (the “Property”). The Debtor opposes the Objection. For the reasons stated below, the Court will overrule the Trustee’s Objection. I.BACKGROUND On September 8, 2005 (the “Petition...
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MEMORANDUM DECISION This Adversary Proceeding came before the court for trial on March 28 and 29, 2006. Plaintiff J. Lester Alexander, III (Trustee), present in person and by counsel Brent B. Barriere and Catherine E. Lasky. C. Ellis Brazeal, counsel for the Defendants N.D. Horton and James M. Reynolds, III, was present as was Defendant N.D. Horton, Jr. The Court heard evidence and to...
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MEMORANDUM DECISION This Chapter 13 case came before the Court for hearing on May 10, 2006, upon the objection to confirmation of the Debt- or’s Chapter 13 Plan, which was filed by the Alabama Department of Human Resources. (DHR). (Doc. 12). The Debtor was represented by counsel Cecil Kerry Curtis and DHR was represented by counsel Richard G. Moxley. DHR has filed a brief (Doe. 14), while the...
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ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING FINOVA CAPITAL CORPORATION’S RENEWED MOTION FOR SUMMARY (Doc. No. 63 and 68) THE MATTERS under consideration in these confirmed Chapter 11 cases of Optical Technologies, Inc., and its several affiliates, collectively referred to as the RE-COMM Debtors, are Defendant’s Motion for Summary Judgment (Doc. No. 63) and a Renewed Motion ...
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ORDER ON CONFIRMATION, OBJECTION BY J.C. BENEFIELD TO THE DEBTOR’S PLAN OF REORGANIZATION AND MOTION FOR CRAMDOWN AS TO J.C. BENE-FIELD (Doc. Nos. 32, 37 and 39) THE MATTERS under consideration in this Chapter 11 case of D & G Investments of West Florida, Inc. (Debtor) are the confirmation of the Debtor’s Chapter 11 *884 Plan of Reorganization (Doc. No. 32) (the Plan...
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ORDER ON ORDER TO SHOW CAUSE (Doc. No.118) THE MATTER under consideration in this Chapter 7 case of Edward D. Ramsey and Kathi L. Ramsey (the Debtors) is an Order to Show Cause directed to the Lee County Tax Collector, (Tax Collector) (Doc. No. 118) which ordered the Tax Collector to appear before the undersigned to show cause, if it has any, why it should not be held in contempt for its al...
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ORDER ON MOTION TO ASSUME LEASE AGREEMENT AND LEASE AGREEMENT ADDENDUM (Doc. No. 162) THE MATTER under consideration in the above-captioned, yet-to-be confirmed Chapter 11 case is a Motion to Assume Lease Agreement and Lease Agreement Addendum (Doc. No. 162) (Motion to Assume) involving an unexpired non-residential lease entered into by Southwest Florida Heart Group, P.A. (Debtor) and Heart Grou...
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ORDER This matter came before the Court on the Objection to Debtors’ Claim of Exemption 1 (“Objection”) filed by Bank One Kentucky, N.A. (“Bank One”). Bank One objects, pursuant to 11 U.S.C. § 522(p), to the homestead exemption claimed by Thomas William Sainlar and Sheryl A. Sainlar (collectively, the “Debtors”). An evidentiary hearing on the Objection was held on January 9...
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FINDING OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION (Doc. No. 9) THE MATTER under consideration in this Adversary Proceeding in the Chapter *864 11 case of Terri L. Steffen (Debtor) is a claim asserted by the Debtor in her Amended Complaint. (Doc. No. 9) (the Complaint). Overseas Holdings Limited Partnership (OHLP) joined as co-plaintiff and, by virtue of ...
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND DENYING PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT This Proceeding came before the Court upon Defendants’ Motion to Dismiss Complaint (“Motion”), Plaintiffs Response and Cross-Motion for Partial Summary Judgment (“Response”), Defendants’ Reply (“Reply”), and Plaintiffs Supplemental Memorandum (“Memorandum”). Based upon the ev...
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ORDER ON THE HEART GROUP P.L. MOTION FOR ORDER DEEMING THE TRANSITION SERVICES AGREEMENT EXPIRED AND DETERMINATION OF ADMINISTRATIVE CLAIM AGAINST THE ESTATE (Doc. No. 191) THE MATTER under consideration is a Motion for Order Deeming the Transition Service Agreement Expired and Determination of Administrative Claim against the Estate, filed by The Heart Group P.L. (The Heart Group) who seek...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon Debtor’s, JRV Industries, Inc. d/b/a BRC Performance (“JRV”), Chapter 11 Amended Plan of Reorganization (the “Plan”) and Objection to Confirmation (“Objection”) filed by Mazak Corporation (“Mazak”). A confirmation hearing was held on January 12, 2006 (the “January Hearing”) and was continued to March 23, 2006 (the “Marc...
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ORDER REAFFIRMING ORDER ON MOTION TO DISMISS (Doc. No. 785) IN THIS Chapter 7 liquidation case of Kevin R. Adell, the matter under consider *719 ation is Debtor’s Emergency Motion for Reconsideration filed by Kevin R. Adell (the Debtor) (Doc. No. 785). The Motion is addressed to the Order on Motion to Dismiss entered by this Court on October 4, 2005 (Doc. No. 784) di...
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ORDER DENYING U.S. TRUSTEE’S MOTION FOR RECONSIDERATION OF ORDER GRANTING WAIVER OF CREDIT COUNSELING This cause came before the Court for hearing on May 24, 2006 on the United States Trustee’s Motion for Reconsideration of the Order granting a waiver of credit counseling required by 11 U.S.C. § 109(h)(1) for Mr. Petit-Louis. The Court granted the waiver because the approved credi...
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ORDER ON VERIFIED MOTION TO AVOID FIXING OF A LIEN WHICH IMPAIRS AN EXEMPTION (Doc. No. 16) THE MATTER under consideration in this Chapter 7 liquidation case is a Verified Motion to Avoid Fixing of a Lien Which Impairs an Exemption pursuant to Section 522(f)(1). In her Motion, Ms. Livia G. Walker (Debtor) contends that the judgment lien on record impairs her right to exemptions and, therefore, ...
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ORDER DISCHARGING ORDER TO SHOW CAUSE (Doc. No. 385) THIS CAUSE came on for consideration pursuant to an Order to Show Cause (Doc. No. 385) issued by this Court based *712on a Motion for Order to Show Cause (Doc. No. 376) filed by Keith Kollenbaum (Kollenbaum), which this Court granted in its Order to Show Cause. In the Motion for Order to Show Cause, Kollenbaum requested the entry of an order req...
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ORDER ON DEBTOR’S OBJECTION TO CLAIM NO. 34 FILED BY S.T.D. ENTERPRISES OF NAPLES, INC. (CREDITOR) (Doc. No. 377) THE MATTER under consideration in this confirmed Chapter 11 case of D.W. Walters Enterprises, Inc., (the Debtor or D.W. Walters) is an Objection to Claim No. 34 filed by S.T.D. Enterprises of Naples, Inc. (S.T.D.). The Proof of Claim *286was originally filed in the amount of $60,737.28...
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SECOND ORDER ON TRUSTEE’S MOTION FOR ORDER VACATING SALE TO DEBTOR AND FOR AUTHORITY TO SELL CERTAIN ASSETS (Doc. No. 130) This is the Chapter 7 liquidation case of Jimmie Joe Fulks (Debtor) and the instant matter under consideration is a Motion for Order Vacating Sale to Debtor and for Authority to Sell Certain Assets, filed by Diane Jensen, Trustee of the estate of the Debtor (Trustee). In her ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon Sarria Enterprises, Inc.’s (“Sarria”) Motion for Relief from Stay (“Motion”) to commence eviction procedures with respect to Winn-Dixie Stores, Inc.’s (“Winn-Dixie”) Store Number 237, Interplaza Shopping Center, Fort Laudei'dale, Florida (the “Property”), and Winn-Dixie and twenty-three of its subsidiaries and affiliat...
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ORDER ON DIRECTV, INC.’S MOTION FOR SUMMARY JUDGMENT AS TO COUNT I OF ADVERSARY COMPLAINT (Doc. No. 52) THE MATTER under consideration in this Chapter 7 liquidation case is a Motion *309 for Summary Judgment filed by DirecTV Inc. (DirecTV) (Doc. No. 52). The Motion is directed to Count I of a multiple count Complaint filed by DirecTV against Daniel Scott Deerey (the Debtor). Specifically,...
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MEMORANDUM OPINION The Motion for Declaratory Relief 1 filed by the Debtor came before the Court on April 25, 2006. No objections to the Motion were filed, but at the hearing on the Motion oral objection was made by WMC Mortgage Corp., through its service provider Select Portfolio Servicing, Inc. (collectively “WMC/SPS”). Upon consideration of the Motion, the oral objection...
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ORDER THESE CORE PROCEEDINGS 1 come before the Court on the Chapter 13 Trustee’s (“Trustee”) Motion to Modify Plan, and the Debtors Robin L. Wimpee and Deborah H. Wimpee (“Debtors”), Objection to Motion to Modify Plan and Motion for Entry of Discharge. The Trustee is seeking to increase the confirmed plan percentage to the Debtors’ prepetition unsecured nonpriority creditors from a 35% to 75%...
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AMENDED MEMORANDUM OPINION 1 Before the Court is the Motion of McKesson Corporation (“McKesson”) to Compel Payment of Escrow Funds. The Motion was opposed by Women First Healthcare, Inc. (“the Debtor”) and the WFHC Liquidating Trust (“the Trust”). For the reasons stated below, the Court will deny the Motion. I. BACKGROUND The Debtor filed a voluntary petition for...
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MEMORANDUM ORDER DISMISSING CASE AS TO ELE ASHA M. BURKE ONLY This Memorandum Order is yet another attempt by this Court to decipher the contours of the pre-bankruptcy credit counseling provisions of the Bankruptcy Abuse Prevention Consumer Protection Act of 2005 (“BAPCPA”). The issue before the Court is whether the wife-debtor in this case may obtain a temporary waiver of the pre-bankruptcy ...
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MEMORANDUM OF DECISION I. The Law Offices of Donna Buttler (“the plaintiff’), on August 5, 2005, filed a complaint against Melissa Beecher Bonebo (“the debtor”), the debtor in a Chapter 7 bankruptcy case, seeking to have the plaintiffs claim held nondischargeable under Bankruptcy Code § 523(a)(2)(A) as a debt for services and/or an extension of credit obtained by fraud. 1 ...
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ORDER GRANTING DEBTOR’S MOTION FOR REHEARING THE MATTER under consideration in the Chapter 7 case of Livia G. Walker (Debtor) is a Motion for Rehearing, filed by the Debtor. The Motion is directed to an Order (Doc. No. 36) entered by this Court on February 7, 2006, in which this Court held that the Debtor’s Verified Motion to Avoid Fixing of a Lien Which Impairs Exemption (Doc. No. 16...
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ORDER ON MOTION FOR SUMMARY JUDGMENT (Doc. No. 292) The matter under consideration in this Chapter 11 case of Robert A. Erkins and Bernadine M. Erkins (Debtors) is a Motion for summary Judgment filed by Meglon Domestic Non-Grantor Trust (Trust). The Motion is filed in a contested matter which is generated by a Motion to Compel the Trust to Pay the Second Interim Fee Award granted by this Cour...
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MEMORANDUM OPINION Hayflich & Steinberg and Robert E. De-lawder (collectively, the “Defendants”) filed a motion to dismiss the complaint of Logan Medical Foundation, (the “Debtor”) arguing that the bankruptcy court lacks subject matter jurisdiction over the complaint and that the Debtor’s claims are barred by judicial estoppel. 1 The court held a hearing on the Defendant’s ...
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MEMORANDUM OPINION Steven Craig Hartley and Cynthia Sue Hartley (the “Debtors”) filed a motion to reopen their Chapter 7 bankruptcy case to add two creditors, Richard and Tricia Goodwin (the “Goodwins”), who have sued Steven Hartley and his corporation, Precise Enterprises, Inc. (“Precise Enterprises”), in the Circuit Court of Monogalia County, West Virginia. The Debtors also seek to reopen thei...
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MEMORANDUM OPINION This case came before the court on May 30, 2006, for a final hearing on two motions for relief from the automatic stay filed by Connie Myers and Martinsburg Lumber Company (“Martinsburg Lumber”). Ms. Myers and Martinsburg Lumber are creditors that seek to pierce the corporate veil of Charles Edwards Enterprises, Inc. (the “Debtor”), and pursue other State law causes of acti...
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MEMORANDUM OPINION Jonathan Norman and Melissa Darlene Norman (the “Debtors”) filed a motion to extend the automatic stay beyond the 30th day following the filing of this case pursuant to 11 U.S.C. § 362(c)(3)(B). The Debtors filed their Chapter 7 bankruptcy petition on May 12, 2006, and filed their motion to extend the automatic stay on June 9, 2006. For the reasons stated herein, the court ...
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MEMORANDUM OPINION United Bank, Inc. (“United Bank”), filed a motion for relief from the automatic stay of the Bankruptcy Code to repossess convenience store property and enforce its security rights under State law. 1 Thomas *792 H. Fluharty, the Chapter 7 trustee (the “Trustee”) for Weir-Penn, Inc. (the “Debt- or”), opposes the motion on the basis that United ...
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MEMORANDUM OPINION This case came before the court on June 8, 2006, pursuant to a motion to extend the automatic stay beyond the 30th day following the filing of this case pursuant to 11 U.S.C. § 362(c)(3)(B). The motion was unopposed, and conducted by video in Wheeling, West Virginia and in Martins-burg, West Virginia. At the hearing the court heard testimony, received evidence, and ruled th...
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MEMORANDUM OPINION Charles Richard Merritt and Kimberly Kay Merritt (the “Debtors”) filed a motion to compel Helen M. Morris, the Chapter 13 trustee (the “Trustee”), to disburse the non-exempt equity from the sale of the Debtors’ real property to them instead of to their unsecured creditors. The Trustee requests that the motion be denied and that the distribution to the Debtors’ unsec...
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MEMORANDUM OPINION Sava Latovljevic (the “Debtor”) requests an exemption from the Bankruptcy Code’s credit counseling requirements due to his incarceration. The United States Trustee (the “Trustee”) objects to the request for an exemption and seeks to have the Debt- or’s case dismissed on the basis that the Debtor failed to obtain pre-petition, nonprofit, budget and credit counseling services...
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MEMORANDUM OPINION This case came before the court on April 18, 2006, pursuant to an order to show cause as to why this case should not be dismissed due to the failure of Danny Lee Carr (the “Debtor”) to obtain pre-petition, non-profit, budget and credit counseling as required by 11 U.S.C. § 109(h). For the reasons stated herein, the court will dismiss the Debtor’s case. The Debtor is an ov...
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MEMORANDUM OPINION This matter came before the court on the motion of DaimlerChrysler Financial Services Americas, LLC (“Daimler Chrysler”) to confirm the absence of the automatic stay. DaimlerChrysler asserted in its motion that the automatic stay terminated because Christina Joann Boring (the “Debtor”) failed to affirmatively state on her statement of intention whether she was reaffirming, ...
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MEMORANDUM OPINION This matter came before the court on March 22, 2006, on motion of Michael Joseph Lehosit (the “Debtor”) requesting the bankruptcy court to reopen his case in order to compel the trustee to abandon a lawsuit that the debtor has filed against David S. Jenks and, further, that the filing fee for the reopening be waived. Mr. Jenks opposes the motion on the grounds that the issue ...
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MEMORANDUM OPINION Terry P. Brumm (the “Debtor”) filed a motion to refinance his principal residence and payoff his confirmed Chapter 13 plan early. The Chapter 13 trustee (the “Trustee”) objects to the motion unless the Debtor modifies the plan’s dividend to unsecured creditors from 0% to 100%. To pay unsecured creditors 100%, the Trustee estimates that the Debtor must commit an addi...
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DECISION & ORDER Pursuant to the Second Circuit’s decision in Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122 (2001), the debtor seeks to avoid the lien of a third mortgage on her home. This seemingly simple request has opened a Pandora’s box of challenges to the priority of the three outstanding liens. In particular, the present dispute involves the competing claims of the holder of ...
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ORDER RE COMPLAINT TO DETERMINE DISCHARGEABILITY On March 24, 2005, plaintiff Melissa F. Morse filed a complaint to determine the dischargeability of her student loan obligations to Iowa Student Loan Liquidity *670 Corporation and the United States Department of Education pursuant to 11 U.S.C. § 523(a)(8). The United States has consented to the discharge of its debt (doc...
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ORDER These cases are before the court on the debtors’ objections to the trustee’s motions for confirmation. On April 27, 2006, the court conducted a hearing on these matters in Wilson, North Carolina. Because resolution of the issues before the court will directly impact the functioning of Chapter 13, the court opened the hearing to all interested Chapter 13 debtors, trustees, and cr...
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MEMORANDUM DECISION: U.S. TRUSTEE’S MOTION TO DISMISS CASE Habbo G. Fokkena, the United States trustee, moves to dismiss this chapter 7 case for abuse. Kevin F. James, the debt- or, objects. Evidentiary hearing was held June 13, 2006 in Sioux City. John F. Schmillen appeared as attorney for the U.S. trustee. Donald H. Molstad appeared as attorney for James. This is a core proceeding under 28 U....
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ORDER RE: OBJECTION TO CLAIM This matter came before the undersigned on April 19, 2006 on Trustee’s Objection to Claim. Chapter 7 Trustee Sheryl Schnittjer appeared with attorney Eric Lam. Curtis McCormick appeared for Claimant Michael Mahaffey. Chad Frese appeared for Debtors Duane and Kelley Miglia. After the presentation of evidence and argument, the Court took the matter under advisem...
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ORDER DENYING MOTION TO EXTEND TIME TO ASSUME OR REJECT NON-RESIDENTIAL LEASE This matter comes before the Court on motion of Debtor to extend the time to assume or reject a lease between Tubular Technologies, Inc. (“Debtor”) and S-2 Properties, Inc. (“S-2”). Pursuant to 11 U.S.C. § 365, 1 the Court makes the following Findings of Fact and Conclusions of Law. 2 FINDINGS OF FACT 1. O...
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OPINION Presently before me is an objection by the chapter 11 debtors to an amended unsecured, priority claim filed by the United States, through its agency the Internal Revenue Service. Proof of claim #27, dated May 5, 2003 — which amended an earlier claim filed on January 30, 2003— asserts that the debtors owe the United States $302,115.20. Furthermore, the United States contends that i...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW This bankruptcy case began when the debtor filed a chapter 7 petition on February 5, 2004. The present dispute predates the bankruptcy, however, and unfortunately for all involved it did not die when the debtor received a discharge on May 6, 2004. What originated as a simple two-car accident and an obligation that both parti...
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MEMORANDUM OF OPINION DISALLOWING COLOMBIAN CLAIMS AND GRANTING COMITY TO PROCEEDINGS IN COLOMBIA Before the Court is a motion by the reorganized debtor, Aerovías Nacionales de Colombia S.A. Avianca (the “Debtor”), to disallow claims filed by Colombian claimants (the “Claims”). The Debtor is an airline organized under the laws of the Republic of Colombia that provides passenger and cargo ...
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ORDER GRANTING MOTION OF TRUSTEE TO DENY CONFIRMATION The Chapter 13 Trustee filed a motion to deny confirmation of the Second Amended Plan proposed by Debtors Roland and Nancy Gress. The issue is whether the Debtors are proposing to pay into the Plan all of their “projected disposable income to be received in the applicable commitment period,” as required by Section 1325(b) of the Bankruptcy...
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*878 MEMORANDUM OPINION This matter comes before the Court on the motion of Premium Assignment Corporation (“PAC”) for adequate protection or to lift the automatic stay with respect to unearned insurance premiums. 1 Richard J. Mason, the Chapter 7 trustee (the “Trustee”) for the jointly administered estates of JII Liquidating, Inc., formerly known as Jernberg Indus...
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MEMORANDUM OPINION J. Michael Morris, trustee of the bankruptcy estate of Brent and Cheryl Spencer, seeks an order requiring the debtors to turnover certain funds he alleges remained in their bank accounts on the date of their bankruptcy petition. The debtors raise the familiar objection that they had written checks or otherwise committed these funds prior to filing their case and, mo...
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ORDER REGARDING CONFIRMATION OF CHAPTER 13 PLAN THIS MATTER comes before the Court on First National Bank of Omaha’s (“First National”) Objection — Response in Opposition to Confirmation of Debtor’s Proposed Amended Chapter 13 Plan. A hearing was held on April 27, 2006. The Court has reviewed the facts and arguments presented by the parties, as well as the pertinent legal authority, and h...
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ORDER DISMISSING CHAPTER 11 CASES This case comes before the Court on the Joint Motion of Debtors, OptinRealBig.com, LLC, and Scott Allen Richter, to Dismiss Case for Good Cause (docket # 223) [the “Motion”]. The Court held a hearing in this matter on November 21, 2005. It has considered the evidence presented and the statements of counsel; the Court has reviewed the p...
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ORDER DENYING DEBTOR’S CLAIM OF EXEMPTION THIS MATTER comes before the Court on the Chapter 7 Trustee’s Objection to Debtors’ Claim of Exempt Property and Supplement to Objection to Debtors’ Claims of Exempt Property. The Court has reviewed the facts and arguments presented by -the parties, as well as the pertinent legal authority, and hereby makes the following findings of fact and concl...
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ORDER REGARDING MOTION FOR ATTORNEY FEES THIS MATTER comes before the Court on Debtors’ Motion for Attorney Fees [the “Sanctions Motion”]. A hearing was held on May 16, 2006. The Court has reviewed the facts and arguments presented by the parties, as well as the pertinent legal authority, and hereby makes the following findings of fact and conclusions of law, pursuant to Fed. R.B...
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MEMORANDUM OPINION This opinion is with respect to the Debtors’ motion (Doc. #310) for entry of an order approving a settlement agreement among the Official Committee of Unsecured Creditors (the “Committee”), the Debtors, and CapitalSource Finance, LLC. (“CapSource”). The United States Trustee (“UST”) opposes the motion. For the *293 reasons discussed below, the Court will gr...
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MEMORANDUM OPINION This opinion is with respect to the plaintiffs’ motion for abstention and referral to arbitration (Adv.Doc. 14). For the reasons discussed below, the Court will grant the motion. BACKGROUND On June 1,1999, Loewen Group International, Inc. and its related entities (collectively, the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 of the United ...
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MEMORANDUM OF DECISION REGARDING TRUSTEE’S OBJECTION TO HOMESTEAD EXEMPTION Before the Court is the Chapter 7 Trustee’s objection to the Debtor’s claim of exemption as to her Attleboro home (“Trustee”) (“Objection”). The Debtor opposes the Objection (“Opposition”). Background The material underlying facts in this matter are undisputed and are herein summarized. On October 14, 2005, the Debtor ...
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MEMORANDUM OF DECISION REGARDING DAMAGES FOR WILLFUL VIOLATION OF THE AUTOMATIC STAY On June 12, 2006, after an evidentiary hearing, the Court made Findings of Fact and Rulings of Law (“Findings and Rulings”) on which it based its determination that the within Debtor, Stephen H. Chew, is entitled to actual and punitive damages from Marcia McGarry, Carol Colburn, Edward Chew, and Cynthia Wyroc...
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MEMORANDUM OF DECISION I. INTRODUCTION The contested matters before the Court are the following: (1) “Defendant Andrew J. Filipowski’s Motion to Dismiss Counts I, V-VII, and XII-XIV of the First Amended Complaint” through which defendant Andrew Filipowski (“Filipowski”) seeks to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b) (the “Filipowski Motion to Dismiss”), Counts I, V thro...
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MEMORANDUM OF DECISION REGARDING FINAL COMPENSATION AND EXPENSE REQUESTS Before the Court are applications requesting final compensation for services and reimbursement of expenses submitted by six professionals: the Chapter 11 Trustee, his counsel, his two special counsel, his accountant, and his special consulting expert (“Professionals”). Background On December 3, 1997, Molten Metal Technol...
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MEMORANDUM-OPINION This matter came before the Court on two Motions to Surrender Collateral in Full Satisfaction of Debt by Debtors Jerry Joe Duke and Deidre Lee Duke (“Debtors”). The first Motion concerns a 2005 Ford Escape upon which Branch Banking & Trust Company (“BB & T”) is the lien-holder. The second Motion concerns a 2003 Chevrolet Silverado upon which PNC Bank (“PNC”) is the ...
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND LIMITING ISSUES FOR TRIAL This case comes before the Court on Plaintiffs Motion for Summary Judgment. Plaintiff seeks judgment on its claim of exception to discharge under 11 U.S.C. § 523(a)(2)(A) and seeks to establish the facts in this case through collateral estoppel. Plaintiff is the Adams County Department of Social Services (“Departm...
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MEMORANDUM OPINION Triad Financial Corporation, Movant, filed on March 31, 2006, its Objection to Confirmation of Chapter 13 Plan. Robert M. Brown, Respondent, filed a response on May 22, 2006. Movant’s objection came on for a hearing on May 22, 2006. The Court, having considered the record, the stipulation of facts, and the arguments of counsel, now publishes this memorandum opinion....
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MEMORANDUM OPINION William K. Holmes and Airtrek, LLC, Plaintiffs, filed on May 2, 2006, their Motion To Amend Pleadings Pursuant To Federal Rule Of Civil Procedure 15(b) and Bankruptcy Rule 7015(b). General Electric Capital Corporation, Defendant, filed its response on May 11, 2006. The Court, having considered the motion, the response, and the applicable law, now publishes this memorandum opi...
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MEMORANDUM OPINION Eugene I. Davis, “Responsible Officer” for Tom’s Foods Inc., Debtor, 1 filed on April 19, 2006, his “Motion Of Eugene I. Davis, Responsible Officer For Tom’s Foods Inc., For An Order Authorizing Examination Pursuant To Bankruptcy Rule 2004 and Requiring The Production Of Documents.” The Responsible Officer seeks to compel for examination the attendance of a designated rep...
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ORDER DENYING OBJECTION TO DISCHARGE This case comes before the Court for trial on Plaintiffs Complaint Objecting to Discharge of Debtor. This matter was tried to the Court on February 28, 2006. The Court has consid *296 ered the evidence and arguments presented at trial along with the pleadings filed in the case. I.FACTS A. Stipulated and Unc...
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ORDER DENYING MOTION FOR PROTECTIVE ORDER AS TO EXAMINATION OF UNIVERSAL FLEET, INC. This matter came before the Court on May 1, 2006 on Amended Motion for Protective Order as to Rule 7030 Examination Duces Tecus of Universal Fleet, Inc. (CP # 72), and the Court having reviewed the Amended Motion, the Memorandum in Opposition filed by the Trustee, Joel Tabas (CP # 75), the Response thereto (CP #...
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ORDER DENYING MOTION FOR RECONSIDERATION On May 22, 2006, Defendants in seven 1 of the above-referenced adversary proceedings filed a joint motion to reconsider the amended order on cross-motions for summary judgment dated May 11, 2006. For the reasons set forth below, the motion to reconsider is denied. Because the motion to reconsider raises issues relevant to all of the captioned adver...
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MEMORANDUM DECISION The matter before the Court is the Motion for Relief from the Automatic Stay (“Motion for Relief’) filed by Mortgage Electronic Registration Systems (hereinafter referred to as “MERS”), by and through its servicer, Countrywide Home Loans (hereinafter referred to as “Countrywide”) requesting relief from the automatic stay to proceed with an unlawful detainer action ...
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MEMORANDUM AND ORDER OF DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION This matter is before the Court on Motion to Dismiss (the “Motion to Dismiss”), filed by Educational Credit Management Corporation (“ECMC”), assignee of United Student Aid Funds, Inc. pursuant to Fed. R. Bankr. P. 7012(b)(1), through which ECMC requested that this Court dismiss the Plaintiffs complaint without p...
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MEMORANDUM THIS MATTER is before the Court on the Debtors’ Motion to Avoid Lien. The Motion to Avoid Lien seeks to avoid a transcript of judgment recorded by H. Davidson & Associates, Inc. (“Davidson”) as a judicial lien that impairs the Debtors’ homestead exemption in accordance with 11 U.S.C. § 522(f). Davidson responded to the Motion to Avoid Lien, and the Court held a final hearin...
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ORDER DENYING DEBTOR’S HOMESTEAD EXEMPTION CLAIM This is a dispute concerning the Debt- or’s (Sacharko) entitlement to a homestead exemption in his 40% interest in the former marital domicile (the Property). Sa-charko no longer lives at the Property, but it is currently occupied by his dependent minor daughter. Sacharko has elected the protections of the Rhode Island Homestead statute, which pro...
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MEMORANDUM OPINION1 This court issued a Memorandum Opinion and Order dated February 10, 2005, Adv. Dkt. No. 91, denying a motion for summary judgment filed on behalf of Plaintiff-Debtor WorldClass Processing, Inc. (‘WorldClass”), and granting with prejudice Defendant CIT’s2 motion to dis*135miss the amended complaint. See In re Worldclass Processing, Inc., 323 B.R. 164 (Bankr.W.D.Pa.2005). The pa...
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OPINION REGARDING EMPLOYEE CLAIMS RELATED TO OWNERSHIP OF STOCK OPTIONS, AND GRANTING 13TH, 19TH, AND 22ND OMNIBUS OBJECTIONS TO PROOFS OF CLAIM I. Introduction Before the Court are Enron Corp.’s (“Debtor” or “Enron”) 13th, 19th, and 22nd Omnibus Objections to Proofs of Claim (collectively, the “Objections”), filed on August 25, 2003, November 7, 2003, and December 2, 2003, respectiv...
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OPINION DENYING ENRON’S MOTION FOR LEAVE TO AMEND ITS COMPLAINT AGAINST LEHMAN BROTHERS JAPAN, INC. FACTUAL AND PROCEDURAL HISTORY The Debtors Commencing on December 2, 2001, and from time to time continuing thereafter, Enron Corp. (“Enron”) and its affiliates (the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”...
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MEMORANDUM OPINION 1 Before the Court is the Request of Sumner A. Barenberg, Ph.D. for Allowance of Administrative Expense Pursuant to 11 U.S.C. § 503(b) (the “Request”). It is opposed by the United States Trustee (the “UST”) and the chapter 7 trustee. For the reasons set forth below, the Court will deny the Request. 1. BACKGROUND Bernard Technologies, Inc...
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OPINION RE: TRUSTEE’S MOTION FOR DISGORGEMENT OF RETAINER On July 28, 2005, the Chapter 7 Trustee filed a motion entitled “Motion for Disgorgement of Retainer.” The purpose of the motion was to compel the law firm of Kreis, Enderle, Callander & Hudgins, P.C. (“Kreis Enderle”) to turnover a portion of what it had received as a pre-petition retainer to represent its client, S...
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MEMORANDUM DECISION AND ORDER DENYING THE PLAINTIFF’S MOTION TO SERVE AND FILE A THIRD AMENDED COMPLAINT The plaintiff brought this adversary proceeding to recover in excess of $15 million from Alex Mandl, Teligent’s former Chairman and Chief Executive Officer. She now seeks to serve and file a Third Amended Complaint for the purpose of asserting an intentional fraudulent transfer claim. ...
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MEMORANDUM DECISION (1) DENYING ALL FEES TO COHEN, ESTIS AND ASSOCIATES, LLP, (2) DISGORGING RETAINER SUBJECT TO FURTHER DETERMINATION BY THE COURT, AND (3) SUSTAINING RULING ON MOTION FOR RECONSIDERATION On April 11, 2006 this Court issued an oral ruling, later reflected in an order dated April 26, 2006 (ECF Docket No. 329), denying all professional compensation requested by Cohen, E...
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MEMORANDUM-OPINION These matters came before the Court on the Motions of the Debtors in Support of Plan Provisions Excluding Tax Refunds from Distribution under Chapter 13 Plans. Each of the Debtors, Todd Risher, Robert A. Hobbs, Gary Gray and Orville and Pamela Lockwood (“Debtors”) seek to exclude tax refunds as part of any distribution to unsecured creditors in their Chapter 13 Plans. The C...
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ORDER DENYING OBJECTION TO CONFIRMATION The issue presented in this Chapter 13 case is whether section 1325(b) of the Bankruptcy Code requires a debtor to make payments to the trustee with respect to income that the debtor had prior to filing bankruptcy notwithstanding that the debtor receives less income postpetition so that making such payments is in fact impossible-. Section 1325(b...
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MEMORANDUM OPINION ON VARIOUS MOTIONS TO DISMISS CHAPTER 13 CASES FOR CAUSE PURSUANT TO 11 U.S.C. §§ 109(h)(1), 521(a) and (b), and 707(a) In this opinion, the Court again determines the proper means of disposing of a bankruptcy petition filed by a debtor who has not undergone the requisite credit *490 briefing required by Section 109(h) of the Bankruptcy Abuse Prevention...
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MEMORANDUM OPINION RE TORT CLAIMANTS COMMITTEE’S FOURTH MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEBTOR’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT (PERPETUAL ENDOWMENT FUND) In this chapter 11 1 case, the Tort Claimants Committee (TCC) filed this adversary proceeding to obtain a declaration of whether certain real and personal property is property of debtor Roman Catholic Archb...
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MEMORANDUM OPINION This matter came before the Court for hearing on April 4, 2006, for confirmation of Debtors’ Chapter 13 plan and the Objection to Confirmation filed by creditor Nu-vell Financial Services Corp. (hereinafter, “Nuvell”) on January 11, 2006. At the conclusion of the hearing, the Court took the issue of confirmation under advisement, particularly, to consider the meaning...
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AMENDED MEMORANDUM OPINION ON MOTION TO LIFT AUTOMATIC STAY AND OBJECTION TO CONFIRMATION This matter is before the Court on the Motion of creditor LaSalle Bank National Association for relief from the automatic stay as well as LaSalle’s objection to confirmation. Debtor Laura Flores is alleged to be a co-owner of real estate located at 15625 South Bramblewood Road in Oak Forest, Illinois...
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MEMORANDUM OPINION Bank One moves for relief from stay so that it may pursue collection of essentially all of the assets of the bankruptcy estate of Aliquippa Machine Co., Inc., the above-captioned debtor (hereafter “the Debtor”). Bank One contends that a grant of such stay relief is appropriate at this time because, argues Bank One, such assets are fully encumbered by the first prior...
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Opinion Before the Court is the (1) Motion to Dismiss Case With Prejudice (the “Old Gold Motion”) filed by Old Gold, LLC (“Old Gold”) and (2) Debtor’s Motion to Approve Disclosure Statement (the “Debt- or’s Motion”) (together the “Motions”). A hearing was held during which neither party presented any testimony. 1 For the reasons set forth below, Old Gold’s Motion shall be g...
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MEMORANDUM OF DECISION The matter before the Court is the Defendants’ Motion in Limine (docket # 242) to preclude the Plaintiffs from introducing any evidence barred by the exculpatory clause in the Restated Certifícate of Incorporation of Century Electronics Manufacturing Inc. (“Century”), a Delaware corporation. More specifically, Defendants Cohen, Conroy, DePetrillo, Gaviglia, Nemirovs...
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MEMORANDUM OF DECISION This adversary proceeding is before the court for the entry of judgment after trial. *459 The proceeding was brought by United Air Lines, Inc. (“United”), a Chapter 11 debtor in possession. United seeks a declaratory judgment as to the effect in bankruptcy of a provision in its Airport Use Agreement (AUA) with the City of Chicago, governing United’s use...
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ORDER For the reasons set forth in an Opinion entered this day, IT IS HEREBY ORDERED that the Complaint to Determine Dischargeability of Debt be and is hereby denied without prejudice, and the consolidated student loan debt of Thomas Keith Coatney to the United States Department of Education be and is hereby determined to be nondis-chargeable pursuant to 11 U.S.C. § 523(a)(8). IT IS FURTHER ORDERE...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Matthew Phillip Arguin, Sr. and Marie Louise Arguin (the “Debtors”) to modify their confirmed Chapter 13 plan and on the objection thereto filed by Am-eriCredit Financial Services, Inc. (the “Creditor”). The issue is whether the Debtors’ confirmed plan can be amended to surrender a used motor vehicle to the Credito...
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MEMORANDUM OPINION I. INTRODUCTION The above-captioned chapter 13 bankruptcy cases were dismissed prior to confirmation of each debtor’s chapter 13 plan. In each case, the law firm of Jenkins & dayman (“J & C”), served as counsel for the Debtor and requested that the court direct the chapter 13 trustee (“the Trustee”) to make a distribution to J & C ...
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SUA SPONTE ORDER DETERMINING DEBTORS’ COMPLIANCE WITH FILING REQUIREMENTS OF SECTION 521(a)(1) Pursuant to 11 U.S.C. § 521(i), if an individual debtor in a voluntary case under Chapter 7 or 13 fails to file all of the information required under 11 U.S.C. § 521(a)(1) within 45 days after the date of the filing of the petition, the case shall be “automatically dismissed” effective on the 46th d...
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MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS, AND REMANDING REMAINING CLAIMS This matter is before the Court upon the Motion to Abstain or Remand filed by Plaintiffs Henry D. Hoge, Dona P. Hoge, and the Henry D. Hoge and Dona P. Hoge Family Trust (collectively the “Plaintiffs”), the Motion to Dismiss filed by Defendants C. William Moore, Jeffrey Lewis, Mich...
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ORDER RE: OBJECTIONS TO CONFIRMATION ON CUSTODIAL TRUST ISSUES This matter is before the Court on the United States of America, on behalf of the Environmental Protection Agency’s (“EPA”), supplemental objection to confirmation of the Debtors’ joint plan on custodial trust issues (Doc.2053), the Debtors’ response (Doc.2094, 2106), and the Official Committee of Unsecured Creditors’ join-der to the ...
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MEMORANDUM OPINION This matter comes before the court on an adversary complaint filed by plaintiff, Martin G. Krist (“Krist”)1 against debtor and defendant, Richard W. Curtis (“Curtis”). The complaint states that Krist seeks relief pursuant to §§ 523(a)(2)(A), and (a)(2)(B) of the Bankruptcy Code (11 U.S.C. §§ 101 et seq.)2 finding that an alleged debt is non-dischargeable in this bankruptcy case....
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MEMORANDUM OPINION This matter comes before the court on the Trustee’s Fourth Omnibus Objection to Claims (Late Claims) filed on June 10, 2005 (“Objection”) seeking an order that all claims filed after the claims bar date be deemed tardily filed under § 726(a)(3) of the Bankruptcy Code, 11 U.S.C. 101 et *868 seq. 1 Claimant Oracle USA, Inc. (formerly Oracle Corpora...
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MEMORANDUM DECISION The matter before the Court is the Motion to Remand filed by Susie Fern Rife, the Plaintiff, requesting this Court remand the matter to the Circuit Court of Buchanan County, Virginia and dismiss and close this adversary proceeding, or in the alternative, stay this adversary proceeding pursuant to 28 U.S.C. § 1334 and 1452(b). The Plaintiffs Motion to Remand was hea...
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*488 MEMORANDUM DECISION The matter before the Court is the Debtors’ Application for Waiver of the Chapter 7 Filing Fee pursuant to 28 U.S.C. § 1930(f). This matter was heard on April 5, 2006. At that time, the Court raised a question with Debtors’ counsel as to whether it should compare the Debtors’ gross monthly income as reported on Line 3 of Schedule I or the Debtors’ total combined mon...
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MEMORANDUM OPINION The matter before the Court is Washington Federal Savings Bank’s Motion for Approval of Charges and Application of Payments Under Loan Agreement, Including Counsel Fees, Nunc Pro Tunc, Under 11 U.S.C. § 506 and 11 U.S.C. § 1322(e), or for Amendment of Proof of Claim and/or Reconsideration of Claim Under F.R.B.P. 3008 (“Motion”). For the reasons expressed ...
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OPINION Factual Backgroimd Michael Soloman Wansor (“Debtor”) filed a voluntary Petition under Chapter 7 of the Bankruptcy Code on January 31, 2006. The Debtor’s wife did not join in the Petition. Before the Court is the Debtor’s Motion to Avoid Liens. The facts are not in dispute. First Place Bank (the “Bank”) filed three judgments against the Debtor. The judgments were ...
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MEMORANDUM DECISION The matter before the Court is the Trustee’s Objection to the Debtors’ Claim of Exemptions. The issue on which the Objection turns is whether the Debtors made a timely filing of an amended homestead deed under Virginia law. A hearing was held on the Trustee’s Objection on January 18, 2006. At that time, the Court took the matter under advisement and requested written argum...
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MEMORANDUM-DECISION AND ORDER On May 2, 2006, James and Theresa Wilson (“Debtors”) filed a voluntary petition in bankruptcy pursuant to chapter 13 of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 11 U.S.C. §§ 101-1330 (“BAPCPA”) or (“Code”). On that same date, the Debtors, through their attorney David Giglio, Esq. (“Giglio”), filed a “REQUEST FOR WAIVER OF COMPLETION OF I...
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ORDER GRANTING PLAINTIFF’S MOTION FOR ABSTENTION AND REMAND TO STATE COURT Before the Court is Plaintiffs Motion for Order Remanding Matter to State Court and/or Abstention (Doc. 8) and Plaintiffs Brief in Support of his Motion to Remand and for Order of Abstention (Doc. 9), filed by Plaintiff Patrick J. Malloy, III, as Trustee in Bankruptcy of the Debtor, 4 Front Petroleum, Inc. (“Tr...
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OPINION REGARDING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT ON BASIS OF JUDICIAL ESTOPPEL I. JURISDICTION The court has jurisdiction over this bankruptcy case. 28 U.S.C. § 1334. The case and all related proceedings have been referred to this court for decision. 28 U.S.C. § 157(a) and L.R. 83.2(a) (W.D.Mich.). This adversary proceeding is a core proceeding because it involves t...
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Memorandum Decision on Trustee’s Objection to Confirmation At the ceremony when President Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), making sweeping changes to Title 11 of the United States Code (the Bankruptcy Code), the President stated: In recent years, too many people have abused the bankruptcy laws. They’ve walked away from debts ev...
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Memorandum Decision and Order on Trustee’s Objection to Debtors’ Claim of Exemptions This case involves an issue of apparent first impression in Wisconsin: whether an *910 inherited individual retirement account may be claimed exempt under Wis. Stat. § 815.18(3)0)- The facts behind this interesting legal issue are undisputed. Ruth Kirchen established an individual retirement account (IRA) on ...
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MEMORANDUM OPINION I. INTRODUCTION Debtors Charles and Patricia Venuto (“the Debtors”) have moved to reopen their closed chapter 13 case to obtain further relief from this court. More specifically, the Debtors request that I reopen their bankruptcy case to enter an order staying a sheriffs sale of their residence which is presently scheduled for June 9, 2006. The Debtors ...
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MEMORANDUM DECISION The matter before the Court is the proposed entry of a consent order resolving the Motion for Valuation filed on December 22, 2005 by the Debtors to determine the value of a 2004 Pontiac Aztek upon which GMAC, which financed the purchase of the vehicle for the Debtors, has a security interest. 1 The proposed consent order provides that the Debtors wish t...
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MEMORANDUM OPINION REGARDING ORCHARD AND GDW’S MOTIONS TO DISMISS HSM-Kennewick, LP (“HSM”) filed a voluntary Chapter 11 petition on March 3, 2006. HSM and WO Kenneywick, LLC (‘WOK”) comprise the entire membership of The Orchard at Hansen Park, LLC (“Orchard”). On May 19, 2006, Orchard filed a Chapter 11 bankruptcy petition through an attorney hired by HSM. An attorney claiming to represent t...
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ORDER RE MOTION FOR SUMMARY JUDGMENT This matter came before the undersigned on June 23, 2006 pursuant to assignment. Sean K. Heitmann appeared for Debtors/Plaintiffs Shamus R. and Leona K. McDonough. John Waters appeared for Defendant Iowa Department of Revenue (IDOR). After the presentation of evidence and argument, the Court took the matter under advisement. This is a core proceeding pursuan...
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ORDER WITH REGARD TO APPLICATION FOR UNCLAIMED FUNDS OF WELLS FARGO MORTGAGE, INC. Wells Fargo Home Mortgage, Inc. (“Claimant”) did not timely claim $1,783.05 of the disbursements the Chapter 13 Trustee made to fully pay its proof of claim for the prepetition arrearage on a note secured by the Debtor’s residence. Under the Debtor’s plan, the Trustee’s disbursements on this claim cured defaults ...
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MEMORANDUM DECISION This Adversary Proceeding is before the Court upon the Plaintiffs 1 Motion to Strike Jury Demand of Defendant Starla W. Price Frazier (“Frazier”). (Doc. 34). Defendant Frazier has filed a response in accordance with this Court’s Order of April 11, 2006. (Docs. 74, 88). For the reasons set forth below, the Motion to Strike Jury Demand is GRANTED. (Doc. 34...
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OPINION GRANTING MOTION FOR CERTIFICATION OF A SETTLEMENT CLASS AND FOR APPROVAL OF LOUISIANA RIGHT OF WAY SETTLEMENT Before the Court is the Motion for Certification of a Settlement Class and for Approval of a Louisiana Right of Way Settlement (the “Settlement Motion”), filed by the Reorganized Debtors, MCI, Inc. (the “Reorganized Debtors”), and the Claimants XCL, Ltd., LM Holding Assoc....
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Memorandum re Plan Confirmation Debtor Brain Osborn has proposed a Chapter 13 plan whereby he will pay $1,350.00 per month for 36 months to the Chapter 13 trustee. After payment of mortgage arrears, there will be a pot of about $43,000.00 for unsecured creditors to share. Unsecured creditor Tor Perkins objects. Osborn is a licensed architect and general contractor. Perkins has filed a claim for $2...
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MEMORANDUM OF DECISION REGARDING MOTION FOR STAY PENDING APPEAL AND REQUEST FOR CERTIFICATION FOR DIRECT APPEAL I. Introduction When Robert Louis Marrama (the “Debtor”) filed the above-captioned case, he had a pending Chapter 7 case in which he was denied his discharge. I granted a motion to dismiss this case after I concluded that the Debtor was ineligible to be a Chapter 13...
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MEMORANDUM of DECISION In this Chapter 11 bankruptcy, after due notice, a hearing was held February 7, 2006, in Butte on the Motion to Dismiss Case filed by Fremont Investment and Loan (“Fremont”) on November 22, 2006. Fremont was represented at the hearing by attorney Ross Richardson, of Butte, Montana, and the Debtor was represented by attorney James A. Patten, of Billings, Montana. Kevin Det...
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MEMORANDUM OPINION ON: (1) THE DEFENDANT’S MOTION TO ENLARGE TIME TO FILE NOTICE OF APPEAL; AND (2) THE PLAINTIFF’S MOTION TO STRIKE/DISMISS DEFENDANT’S MOTION TO EXTEND TIME TO FILE NOTICE OF APPEAL AND REQUEST FOR EVIDENTIARY HEARING I. INTRODUCTION On March 31, 2006, this Court held a hearing (the Hearing) on: (1) the Motion of pro se Defendant Valorie Davenport (the Defendant) 1 to En...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the “Motion of Defendants Long Beach Mortgage *8 Corp. and Washington Mutual Bank for Summary Judgment.” Through their Motion, Long Beach Mortgage Corp. (“Long Beach”) and Washington Mutual Bank (“Washington Mutual”)(collectively, the “Lenders”) seek summary judgment on Counts I, II, and III of the Complaint filed...
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ORDER ON CONFIRMATION AND MOTION FOR CRAMDOWN (Doc. Nos. 124 and 143) THE MATTERS under consideration in this Chapter 11 case of Chapin Revenue Cycle Management, LLC (Debtor) are the confirmation of the Debtor’s Amended Plan of Reorganization (Doc. No. 124) (the Plan) and the Debtor’s Motion for Cram-down (Doc. No. 143). The Plan was subsequently modified by the First, Second, and Third Modific...
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MEMORANDUM OPINION Before the court is the renewed motion of the Internal Revenue Service (“IRS”) to dismiss this chapter 13 case for want of jurisdiction. In particular, the IRS contends that the debtor’s noneontingent and liquidated unsecured debt exceeds the lim*375it established for chapter 13 debtors under 11 U.S.C. § 109(e). Jurisdiction The court’s jurisdiction in this matter is derived fr...
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MEMORANDUM OPINION AND ORDER OVERRULING DEBTORS’ OBJECTIONS TO PROOFS OF CLAIM The issue presented in the contested claims objections pending in these Chapter 13 cases is whether unsecured claims should be disallowed where the sole basis of objection is the claimant’s alleged failure to attach to the claim documentation sufficient to comply with Rule 3001(c), Fed.R.Bankr.P. For the reasons th...
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MEMORANDUM OF DECISION AND ORDER This adversary proceeding, which was initiated by the Minnesota Pollution Control Agency (“MPCA”) by a complaint filed on June 27, 2005, seeks injunctive relief to require action by the Chapter 7 Trustee of the bankruptcy estate of Globe Industries, Inc. (“Trustee”) to investigate and abate the alleged release of hazardous substances from storage tanks...
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United States Bankruptcy Appellate Panel FOR THE EIGHTH CIRCUIT _______________ No. 06-6001NE ________________ In re: * * M&S Grading, Inc., ...
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MEMORANDUM OPINION AND ORDER Plaintiffs seek a determination from this Court that minor plaintiff Jesse White’s (Jesse) personal injury lawsuits against defendants in Maryland state court were not discharged by this Court’s May 16, 2002 Order Confirming Debtors’ Second Amended Plan of Reorganization (“Confirmation Order”). 1 Debtors filed a motion to enforce the Confirmatio...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON KINGSBURY OBJECTION TO SAME UNDER 11 U.S.C. § 36S(i) Following trial with evidence on the issue of whether creditor Kingsbury is “in possession” of subject property under 11 U.S.C. § 365®, the following is made and will be entered as Findings of Fact and Conclusions of Law, ruling that Kingsbury is not “in possession” under that provision. Trial was he...
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MEMORANDUM OPINION ON UNITED STATES OF AMERICA’S MOTION FOR SUMMARY JUDGMENT DESCRIPTION OF THE PARTIES Joseph L. And Veronica Vastag (“Debtors”) are the joint debtors in their underlying Chapter 13 Bankruptcy, later converted to one under Chapter 7. The United States of America (“USA”), by its agency, the Internal Revenue Service, filed the Amended Proof of Claim at issue. Debtors filed ...
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MEMORANDUM OPINION DETERMINING PALM BEACH COUNTY HEALTH CARE DISTRICT TO HAVE NO FURTHER LIABILITY TO BANC ONE LEASING CORPORATION PURSUANT TO TERMS OF LEASE AGREEMENT THIS CAUSE came before the Court for a trial on August 22, 2005 on Plaintiff *224Banc One Leasing Corporation’s (“Banc One”) Fourth Amended Complaint (C.P.95) against Defendant Palm Beach County Health Care District (“District”). On...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO PROPERTY CLAIMED AS EXEMPT UNDER NEW YORK LAW, ALLOWING EXEMPTION UNDER 11 U.S.C. § 522(d)(2), AND GRANTING TRUSTEE’S AMENDED MOTION TO COMPEL TURNOVER OF AUTOMOBILE Under section 522(b)(3)(A) of the Bankruptcy Code, as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, a debtor is entitled to claim exemptions in the...
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ORDER OVERRULING TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF HOMESTEAD EXEMPTION To qualify for Florida’s homestead exemption, an individual must have an ownership interest in a residence that gives the individual the right to use and occupy it as his or her place of abode. As *548 a general rule, the individual claiming the exemption need not hold fee simple title to the pr...
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Amended Opinion on Motion for Preliminary Injunction I. Introduction In 2004, brothers Steven and David Greenstein acquired control of Homestead Holdings, Inc., the debtor and debtor in possession in this case. As part of that acquisition, Homestead bought assets from the defendant, Broome & Wellington. The Greensteins guaranteed the deferred portion of the price paid for the assets....
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MEMORANDUM OPINION SUSTAINING THE CHAPTER 13 TRUSTEE’S OBJECTION TO CONFIRMATION This matter is before the Court on the objection to confirmation brought by Glenn Stearns, the standing chapter 13 trustee (the “Trustee”). The Trustee is represented by Attorney Carolyn A. Suzzi. Richard C. Demonica, the debtor (the “Debtor”), is represented by Attorney Kerrie Neal of Zalutsky & ...
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Opinion Introduction Defendant Elliot Greenleaf & Siedzikow-ski, P.C. (Elliot) has filed a Motion to Dismiss Count III of the Debtor’s Complaint and a Motion for Sanctions against the Plaintiff and his counsel under Bankruptcy Rule 9011. The Plaintiff has filed a Response to the motions. 1 Hearings were held on the Motions on June 6 and 20, 2006. For the rea...
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DECISION AND ORDER DISMISSING ADVERSARY PROCEEDING Before the Court is a motion by Foothill Mountain, Inc. (“Foothill”), and Stephen Lamstein (“Lamstein”) (collectively “Defendants”) to dismiss this adversary proceeding pursuant to Fed.R.Civ.P. 12(b)(1) and (6), or in the alternative to abstain under 28 U.S.C. § 1334(c) (“Dismissal Motion”). Dorothy Hopkins, the Plaintiff and Debtor h...
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MEMORANDUM OPINION Ideal Aerosmith, Inc. has brought a motion pursuant to § 503(b)(1)(A) of the Bankruptcy Code seeking an allowed administrative expense in the amount of $455,708.05. Careo Finance, which holds an allowed pre-petition security interest in the assets of debtor Careo Electronics, Inc. as well as an allowed post-petition super-priority administrative expense claim, concedes th...
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MEMORANDUM OF DECISION ON MOTION TO AMEND JUDGMENT OR FOR NEW TRIAL On or about December 5, 2005, the Court issued a Memorandum of Decision After Trial (the “Decision”) in the above-captioned adversary proceedings which were consolidated for trial. Judgment (the “Judgment”) was entered on or about January 19, 2006. In the Decision, the Court held, among other things, that the transfer of certai...
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MEMORANDUM OPINION The Court considers the objection of Floyd Holder, the chapter 7 trustee (“Trustee”), to the claim of AgTexas, PCA (“AgTexas”). By order entered March 22, 2006, on AgTexas’s motion for reconsideration, the Court set aside its prior order granting the Trustee’s objection to AgTex-as’s claim. Such prior order, entered September 7, 2005 (and was submitted to the Court as an ag...
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MEMORANDUM OPINION Consolidated Cotton Gin Co., Inc. (“Consolidated Cotton”) moves under section 506(c) of the Bankruptcy Code to surcharge secured property to recoup the following expenses incurred by it in this chapter 11 case: (1) attorney’s fees of Mullin, Hoard & Brown, L.L.P. (“Mullin, Hoard”), counsel for Consolidated Cotton, in the amount of $30,289.96; (2) accountant’s fees o...
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OPINION GRANTING IN PART SULLIVAN & LEAVITT, P.C.’S MOTION FOR DISGORGEMENT OF PAID ADMINISTRATIVE EXPENSES This matter comes before the Court on Motion by Debtors’ special counsel Sullivan & Leavitt, P.C. (“Movant”) for Disgorgement of Paid Administrative Expenses (the “Motion”). General Electric Capital Corporation (“GE Capital”) filed a Joinder in Support of Motion Filed...
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DECISION AND ORDER This matter is before the Court after a Hearing on the Debtor’s Objection to the Claim of Capital One Bank. The basis for the Debtor’s objection is that the proof of claim filed by Capital One Bank “improperly contains the account number.” (Doc. No. 19). Only counsel for the Debtor attended the Hearing. After considering the arguments presented, the Court, for the reasons s...
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MEMORANDUM OPINION Magic Lamp, L.L.C. (“Magic Lamp”) sued for a determination that debtor Troy LeBlanc’s liability to it is non-dischargea-ble under 11 U.S.C. § 523(a)(2) 1 and *709 (a)(6). 2 This lawsuit involves the circumstances leading to the cancellation of a mortgage bearing against immovable property Le-Blanc sold before he filed bankruptcy. Pla...
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OPINION A chapter 7 2 trustee sought to avoid as a fraudulent conveyance a disclaimer by the debtor of her interests in a trust. The court entered an order granting the debt- or’s summary judgment motion and denying the relief sought by the trustee. The trustee appealed and we AFFIRM. I. FACTS The facts in this case are undisputed. Debtor Rachelle M. Costas (“Deb...
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OPINION Under 11 U.S.C. § 362(a), a bankruptcy petition “operates as a stay” of certain actions against property of the debtor and of the estate. The underlying question is whether a court nevertheless has inherent authority to preempt this statutory “automatic stay” for future bankruptcy cases by way of a stay-relief order that purports to have “in rem” effect. Because we conclude that a...
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ORDER Barnee Baxter, the Chapter 13 Trustee (the “Trustee”), objects to the confirmation of both of the above-named cases. In addition, the First Bank of Georgia (the “Bank”) objects to the plan filed by Donald and Carol Johnson (the “Johnsons”) for substantially similar reasons. These matters are core proceedings over which the Court has jurisdiction under 28 U.S.C. § 157(b)(2)(D). ...
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MEMORANDUM OPINION AND NOW, this 2nd day of August, 2006, upon consideration of (a) the objection by Natalie Lutz Car-diello, the Chapter 7 Trustee in the above-captioned bankruptcy case (hereafter “the Trustee”), to the amended exemptions by Kenneth and Sue Seaton, the instant debtors, and, in particular, to the exemption and/or exclusion by Kenneth Seaton (hereafter “the Debtor”) of his i...
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MEMORANDUM DECISION ON REQUEST PURSUANT TO 11 U.S.C. § 362(j) FOR AN ORDER CONFIRMING THAT THE AUTOMATIC STAY HAS TERMINATED Section 362® of the Bankruptcy Code, added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) allows any party in interest to request, by ex parte application, that an order be issued “confirming that the automatic stay has been termin...
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OPINION REGARDING DEBTORS’ OBJECTION TO PROOF OF CLAIM NO. 23159 FILED BY CITRUS TRADING CORP. Enron North America Corp. (“ENA”), one of the Debtors, objected to a proof of claim filed by Citrus Trading Corp. (“Citrus”). Citrus’s claim is based on trading activity by it and ENA in the natural gas market. Three agreements are at the center of the dispute. One was valuable to ENA because it...
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MEMORANDUM DECISION Debtor claimed $150,000 homestead exemption under California Civil Code Procedure (“CCP”) 704.730(a)(3)(C). Richard M. Kipperman, Chapter 7 trustee (“trustee”), objected on the ground that debtor’s gross annual income exceeded the $15,000 statutory threshold. At issue is the meaning of gross annual income under CCP 704.730(a)(3)(C). This Court has jurisdiction to determine...
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DECISION & ORDER BACKGROUND On January 21, 2004, Jay Halperyn, aka Tyler Halperyn, aka Tyler Jay Halperyn (“Halperyn”), filed a petition initiating a Chapter 7 case, and Peter Scribner was appointed as Halperyn’s Chapter 7 case trustee (the “Trustee”). On February 4, 2004, Halperyn filed the Schedules and Statements required to be *67filed by Section 521 and Rule 1007 (the “Initial Schedules” a...
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MEMORANDUM AND NOW, this 1st day of August, 2006, upon consideration of (a) the complaint filed by Robert Shearer, the Chapter 7 Trustee for the bankruptcy estate of Emergency Monitoring Technologies, Inc., the instant debtor (hereafter “the Debt- or”), wherein such Trustee (hereafter “the Trustee”) seeks to avoid several transfers (or alleged transfers) between the Debtor and Steve Tepsic, the ...
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ORDER This Chapter 13 case came before the Court on May 9, 2006 on the Chapter 13 Trustee’s motion to reconvert this case to a case under Chapter 7 and on the reset hearing on confirmation of debtor’s Chapter 13 plan (Docket # 59). Daniel L. *553Gibbs appeared for the Chapter 13 Trustee. Debtor and debtor’s counsel, Stanley Kakol, were present, as was Lynn Wood, who appeared on behalf of Washing...
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MEMORANDUM OPINION This matter comes before the Court upon the Motion to Reconsider Default Judgment (“Motion to Reconsider”) by the Pro Se Plaintiff, Margaret McCain. The Plaintiff filed the Motion to Reconsider on *455 May 25, 2006. On June 1, 2006, Counsel for the Defendant filed an Objection to the Motion to Reconsider. The procedural history of this case was set for...
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MEMORANDUM OPINION This matter came on for hearing on July 6, 2006, upon the Application for Compen *697 sation (“Application”) filed by Edward J. Sargent, Counsel for the Debtors in the above-captioned matter (“Sargent”). At the conclusion of the hearing, the Court took this matter under advisement. The Court has jurisdiction over these proceedings pursuant to 28 U.S.C. §§ 1...
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MEMORANDUM OPINION This matter came on for hearing on June 1, 2006, upon the Application for Compensation (“Application”) filed by Edward J. Sargent, Counsel for the Debtors in the above-captioned matter (“Sargent”). At the conclusion of the hearing, the Court took this matter under advisement. The Court has jurisdiction over these proceedings pursuant to 28 U.S.C. §§ 157(b)(2) *40...
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MEMORANDUM OF DECISION REGARDING DEBT DIS-CHARGEABILITY By their complaint, Douglas Keene and Mary Beth Sidorowicz ask the Court to determine that their claim for damages against the Debtor arising from his alleged breach of a home improvement contract is excepted from discharge under 11 U.S.C. Section 523(a)(2)(A) and Section 523(a)(2)(B). More particularly, the Plaintiffs contend that the Debt...
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ORDER ALLOWING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The matter before the court is the motion for summary judgment filed by the plaintiff, Richard M. Hutson II, trustee for the chapter 11 debtor National Gas Distributors, LLC (“NGD”). The trustee seeks to avoid and to recover, pursuant to 11 U.S.C. §§ 547 and 550, preferential transfers aggregating $3,263,516.15 made by NGD to the defe...
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AMENDED MEMORANDUM DECISION RE: DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS This is an adversary lawsuit brought by two Chapter 11 debtors, Summit Securities, Inc. and Metropolitan Mortgage & Securities Co., Inc. The debtor corporations are suing Helen Sandifur, the former wife of Paul Sandifur. Before the debtor corporations filed their petitions for relief under Chapter 11, the corporation...
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MEMORANDUM OPINION 1 Before the Court is the Motion of the United States Trustee (“the UST”) to dismiss the Debtor’s chapter 7 case based upon the totality of the Debtor’s financial circumstances. The Debtor opposes the motion. For the reasons outlined below, the Court concludes that the totality of the Debtor’s financial circumstances (including the Debtor’s ability to rep...
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MEMORANDUM OPINION 1 Before the Court is the Motion of the PCT (“the Plaintiff’) for leave to amend its complaint. The Motion is opposed by Authentic Specialty Foods, Inc. (“the Defendant”). For the reasons set forth below, the Motion will be granted. I.BACKGROUND On April 1, 2003, Fleming Companies, Inc., and related companies (the “Debtors”) filed voluntary ...
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MEMORANDUM OPINION Introduction In this case the United States Trustee has moved to dismiss the debtor’s chapter 7 case as presumptively abusive under the means test in section 707(b)(2)(A). The debtor attempts to avoid the presumption of abuse by (a) taking a standard $475 ownership allowance for a truck that is neither financed nor leased, and (b) deducting $915 per month from his curre...
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Thomas Stalnaker (“Trustee”), Trustee of the Chapter 7 bankruptcy estates of Rosen Auto Leasing, Inc. (“Rosen Auto”) and Jerome A. Rosen, appeals the bankruptcy court’s judgment in favor of Defendant George Gratton on all counts in his complaint to avoid and recover preferential transfers and fraudulent conveyances arising out of a series of transfers between Rosen Auto, Mr. Gratton, and Mr. Ro...
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This case has its origins in arson and burglary at a strip club called Big Earl’s Goldmine. The debtor pled guilty to burglary and was ordered to pay $62,400.00 in restitution to Big Earl’s. The principle issue in this appeal is whether the bankruptcy court 1 abused its discretion when it denied the debtor’s motion for sanctions against the owners of the strip club for violating the ...
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OPINION The principal issue before this court is whether the actions of Debtor, Jeffrey A. Slocombe are egregious enough to constitute grounds for denial of his discharge pursuant to 11 U.S.C. § 727(a)(4)(D). Presented in this adversary proceeding are claims that arise in a case referred to this court by the Standing Order of Reference entered by the United States District Court for ...
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ORDER ON CENTURY MARTIAL ART SUPPLY, INC.’S MOTION FOR RELIEF FROM STAY (Doc. No. 694) THE MATTER under consideration in these confirmed Chapter 11 cases of The National Association of Professional Martial Artists, Inc. and International IKON, Inc. (the Debtors) is Century Martial Art Supply, Ine.’s Motion for Relief from Automatic Stay (Doc. No. 694) (Century). In its Motion, Century seeks...
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ORDER PURSUANT TO THE MANDATE ENTERED BY THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, FORT MYERS DIVISION ON MARCH 10, 2006 THE MATTER before this Court is pursuant to the mandate issued by the United States District Court for the Middle District of Florida, Fort Myers Division (District Court) on March 10, 2006, in the above-captioned Adversary Proceeding. The District ...
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ORDER ON COUNTER PLAINTIFFS’ AMENDED MOTION FOR SUMMARY JUDGMENT (Doc. No. 68) THE MATTER under consideration in this Chapter 11 ease of Guy Keith Harrison (the Debtor) is an Amended Motion for Partial Summary Judgment filed by Peter M. Nascarella, Kelly L. Nascarella and A & J Automotive Group, Inc. d/b/a DJ Foreign Automotive Sales (the Counter Plaintiffs) (Doc. No. 68) on April 24, 2006, in ...
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ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. No. 321) THESE ARE the confirmed Chapter 11 cases of Hillsborough Holdings Corporation and its thirty-two wholly owned subsidiaries (collectively referred to as the Debtors) and the matter under consideration is a Motion for Partial Summary Judgment (Doc. No. 321), filed by the Debtors in the above-captioned Adversary Proceeding,...
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MEMORANDUM OPINION The issue presented in this case is the effect of Section 502(b)(6), which limits a landlord’s rent claim, on a claim for rent reduced to a judgment lien on real property before the filing of the bankruptcy case. The question is raised by the three related matters before the court: confirmation of the debtor’s chapter 13 plan, the debtor’s objection to the landlord’s proof ...
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MEMORANDUM OPINION The chapter 7 trustee filed a complaint seeking to sell the debtor’s one-half interest in his former marital home which is jointly owned by the debtor and his former wife. Both the debtor and his former spouse, Karin Lee Math, oppose the relief sought. The debtor filed an answer; Math, a motion to dismiss for failure to state a claim upon which relief may be granted. This case...
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MEMORANDUM OPINION This case came before the court on the motion to dismiss the complaint of Martin P. Sheehan, Trustee (the “Trustee”), against George Thomas Stout (the “Husband”) and Catherine Louise Stout (the “Wife”), jointly referred to as the “Debtors.” The Trustee alleges in his complaint that the Debtors made false oaths when they improperly designated an ownership interest in rea...
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DECISION & ORDER BACKGROUND On April 18, 2005, Thomas J. O’Rourke and Carol D. O’Rourke (“Carol O’Rourke”) (collectively, the “Debtors”), filed a petition initiating a Chapter 7 case, which was converted to a Chapter 13 case on June 3, 2005. On April 26, 2006, the Debtors filed a Motion Objecting to Claim Number 12, filed by the United States Department of the Treasury — Internal...
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MEMORANDUM OPINION Before the Court is a complaint to determine the dischargeability of a student loan debt that Jeri Lyn Lee (“Debtor”) owes to Regions Bank and the Student Loan Guarantee Foundation of Arkansas (“SLGF”). In the complaint, the Debtor alleges that excepting the debt from discharge will impose an undue hardship on the Debtor and her dependents. SLGF answered the complaint and a...
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ORDER ON MOTION FOR SUMMARY JUDGMENT (Doc. No. 22 — Adv. No. 06-81) In this Chapter 11 case, the matter under consideration is a Motion for Summary Judgment filed by Louis X. Amato, the Trustee appointed for the estate of Southwest Florida Heart Group, P.A. The motion is directed to a suit filed against the named Defendants, three doctors, and based upon the contention of the Plaintiff that they h...
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ORDER ON DEBTOR’S MOTION FOR SUMMARY JUDGMENT ON COMPLAINT FOR DECLARATORY RELIEF CONCERNING OWNERSHIP OF AND LIENS AGAINST PROPERTY (Doc No. 4) THE MATTER under consideration in this yet to be confirmed Chapter 11 case of Morande Enterprises, Inc., (the Debtor) is Debtor’s Motion for Summary Judgment filed in the above-captioned Adversary Proceeding. In its Complaint, the Debtor a...
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ORDER OF DISMISSAL THIS MATTER comes before the Court on the Motion to Dismiss Case (“Motion”), filed by the Internal Revenue Service (“IRS”) and the Chapter 13 Trustee (“Trustee”). Following an evidentiary hearing, the Court FINDS and CONCLUDES as follows: A. Background This is not the Debtor’s first bankruptcy case. In March, 2001, he filed a Chapter 7 case. At the time, the IRS was pursuing its...
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MEMORANDUM DECISION ON MOTIONS FOR SUMMARY JUDGMENT The chapter 7 trustee brought this adversary proceeding to avoid the defendant’s mortgage lien and preserve it for the benefit of the estate. The defendant answered the amended complaint, asserted affirmative defenses and filed a third-party complaint against the debtor. The trustee and defendant Universal filed motions for summary judgment, b...
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MEMORANDUM OF OPINION THIS MATTER came on for hearing on May 25, 2006, upon the Objection of Wells Fargo Financial (“Wells Fargo”) to confirmation of the Debtor’s Second Amended Chapter 13 Plan. This is a core proceeding over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 151 and 157(b)(2)(L). This Memorandum Opinion constitutes the Court’s findings of facts and conclusions of ...
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ORDER GRANTING CREDITOR’S MOTION TO LIFT CO-DEBTOR STAY THIS MATTER came on for a telephonic hearing on June 5, 2006, upon Cadle Company’s (“Cadle”) Motion for Relief from Co-debtor Stay (Doc. 65). At the hearing, the Court asked the parties to brief the issue. The parties briefed the issue, and after consideration, and for the reasons outlined below, the Court concludes that Cadle is entitled to...
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ORDER REGARDING OBJECTION TO CONFIRMATION This matter is before the Court on the objection to confirmation of the plan (Doc. 25) filed by Creditor HSBC Auto Finance aka Household Automotive Finance (“HSBC”), the amended objection (Doc. 35), and on the Debtors’ response and memorandum in support of confirmation (Doc. 36). In addition, Ford Motor Credit Company was permitted to file an amicus c...
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MEMORANDUM AND ORDER The plaintiff seeks a determination that a debt allegedly owed to it by the defendants is nondischargeable under 11 U.S.C. § 523(a)(2)(B). For the reasons that follow, judgment shall enter in favor of the plaintiff. BACKGROUND The plaintiff contends that the defendants submitted an application for a car loan which contained deceptive and materially false statements upon which...
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MEMORANDUM This case comes before the Court on the Application for Allowance and Payment of AIK Comp’s Administrative Expense Claim or, Alternatively, Designation as a Post-Confirmation Obligation filed by AIK Comp, (hereinafter AIK). In the motion, AIK requested allowance of an administrative expense in the amount of $91,441, incurred in connection with workers compensation premiums. Precision To...
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MEMORANDUM ON MOTION TO DISMISS OBJECTION TO DISCHARGE AND SETTLE COMPLAINT TO DETERMINE DIS-CHARGEABILITY This contested matter is before the court upon the Motion to Dismiss Objection to Discharge and Settle Complaint to Determine Dischargeability (Motion to Dismiss) filed on June 20, 2006, by Sandra Ayers, asking the court to approve a settlement and allow the dismissal of Adversary Procee...
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ORDER DENYING MOTION TO ALTER JUDGMENT The plaintiff, Cheryl Followell, as personal representative of the estate of Betty Jean Gurley, Deceased, asks the court to alter its judgment of November 7, 2005, on the basis that the court failed to consider the Plaintiffs challenge to the legality of the tax penalty assessed against the estate of Betty Jean Gurley. The Plaintiff bases her motion upon t...
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*673 MEMORANDUM OPINION 1 On September 1, 2005, Debtors W.R. Grace, et al., filed their 15th Omnibus Objection (Substantive) to all 4,002 pending asbestos property damage (PD) claims. 2 Section II of the Objection addressed the 53 non-traditional PD claims now at issue. They were filed by the law firm of Biers-dorf & Associates PA (“Biersdorf”) for c...
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MEMORANDUM OF DECISION AND ORDER RE: DEBTOR’S MOTION TO AVOID JUDICIAL LIEN IMPAIRING EXEMPTION The matter before the court is the above-referenced debtor’s (the “Debtor”) Motion To Avoid Judicial Lien Impairing Exemption (Doc. I.D. No. 9, the “Motion”) 1 pursuant to 11 U.S.C. *594 § 522(f)(1)(A) 2 and the above-referenced respondent’s (the ...
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MEMORANDUM OPINION Nanovation Technologies, Inc., along with its affiliate Nanovation Technologies of Michigan, Inc. (collectively, “Nanovation”), was a high tech company founded in the mid-1990s with the goal of developing and marketing a photonic integrated circuit. Like so many of the companies working on cutting-edge technology products during the dot-com boom, Nanovation eventually c...
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ORDER DENYING TRUSTEE’S OBJECTION TO CONFIRMATION AND SETTING THE MATTER OYER FOR FURTHER HEARING The trustee has objected to confirmation of the debtors’ Chapter 13 plan, arguing that the plan does not commit all of the debtors’ disposable income to the plan as required by 11 U.S.C. § 1325(b)(1)(B). The debtors filed their petition after October 17, 2005, the effective date of the Bankruptcy A...
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OPINION Under what terms may a debtor accelerate payments under a confirmed chapter 13 plan and obtain an early discharge? This issue is raised in the two cases addressed in this opinion albeit in different procedural contexts. In the case of Thomas and Pamela Turek (“the Tureks”), the issue arose in the context of a proposal to refinance a residential mortgage. In the case of Allen a...
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MEMORANDUM DECISION ON THE UNITED STATES TRUSTEE’S MOTION TO DISMISS Before the Court is the motion of the United States Trustee (“Trustee”) to dismiss the chapter 7 case of David R. Brick-sin and Vivian M. Bricksin (“Debtors”). Trustee brought this motion pursuant to 11 U.S.C. §§ 707(a), 109(h) and 521(b) and Interim Rule 1007(b)(3) asserting that Debtors failed to file certificates from...
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MEMORANDUM OF DECISION ON DAMAGES AFTER REMAND In this adversary proceeding, the above-captioned debtor, Barbara Dawson (“Mrs.Dawson”), seeks a determination that Washington Mutual Bank (the “Bank”) willfully violated the automatic stay in a prior chapter 7 case filed by her husband, George E. Dawson (“Mr.Dawson”), who is now deceased. 1 She seeks actual and punitive damages on...
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OPINION Procedural History and Factual Background Before me is the complaint of Douglas J. Thatcher (“Debtor”) to determine the dis-chargeability of a debt to the Internal Revenue Service (“IRS”). The debt at issue arises from Debtor’s alleged “responsible person” liability for unpaid trust fund taxes of C & M Catering (“C & M”), his former employer.1 In addition to the catering business, C &...
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MEMORANDUM DECISION ON DEBTOR’S CLAIM OF EXEMPTION This matter came before the court May 24, 2006 upon creditor Rena Wells’ Objection to the Debtor’s Claim of Exemption. The parties were advised to file post-hearing briefs and the matter was continued to July 31, 2006. Having considered the record before the court, arguments of counsel and for the reasons set forth below, the court partia...
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OPINION DENYING CONFIRMATION OF DEBTORS’ CHAPTER 13 PLAN, AND GRANTING STAY RELIEF TO WELLS FARGO FINANCIAL This matter is before the Court for rulings on the confirmability of the Debtors’ Chapter 13 plan, and on Wells Fargo Financial’s motion for stay relief. The Debtors appear by counsel David A. Reed. Wells Fargo appears by counsel Jill D. Olsen. The Court has reviewed the relevant mat...
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ORDER ON DEFENDANT’S MOTION TO DISMISS Defendant Internal Revenue Service (the “IRS”) filed its Motion to Dismiss (Doc. 5) on February 16, 2006, seeking an order dismissing the above-captioned adversary proceeding filed by plaintiffs/debtors, John Randolph Malin and Janis Lynn Malin (the “Malins”), pursuant to Fed. R.Civ.P. 12(b)(1) and (6) and Bankruptcy Rule 7012. In their Complaint...
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MEMORANDUM OF DECISION This matter is before the court on the debtors’ objection to a claim of General Foods Credit Corporation (“General Foods”) in an amount exceeding $96 million. The claim has two components: a claim of about $95 million under a Tax Indemnity Agreement (or “TIA”), and an expense claim for the balance. The parties have agreed on the treatment of the expense claim, leavi...
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MEMORANDUM OPINION This matter is before the court after trial on the adversary complaint filed by Ronald R. Peterson, as trustee of the estate of Patricia Jenkins (the “Chapter 7 Trustee”), seeking, inter alia, to sell both the estate’s interest and the interests of her co-owner siblings in certain real property in Chicago, Illinois. It is Debtor’s position, as well as tha...
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Memorandum Opinion and Order Before the Court are two motions filed by Wilmington Trust Company (‘Wilmington”) for relief from the automatic stay, which are opposed. The dispute is best understood after a review of the extensive proceedings in this and a prior bankruptcy case. I. Factual and Procedural Background A. The Prior Proceedings Ricky Kleibrink (the “Debtor...
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MEMORANDUM OF DECISION The matter before the court is the above-referenced plaintiffs (the “Plaintiff’) complaint seeking a determination that a certain judgment debt (the “Debt”) owing to the Plaintiff was not discharged in this chapter 7 case pursuant to 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(4). 1 This matter is a core proceeding within the purview of 28 U.S.C. § 157(b). T...
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MEMORANDUM OPINION THIS CORE PROCEEDING 1 comes before the Court on the Creditor Elizabeth Goodchild’s (“Creditor”) Objection to Confirmation. The Debtor filed for Chapter 13 bankruptcy protection on December 23, 2005. An Amended Chapter 13 Plan was filed on January 6, 2006, to which the Creditor files the current objection pursuant to 11 U.S.C. § 1325(a)(3), (a)(6), and (a)(7) and 11 U.S.C. ...
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ORDER ON REQUEST OF THE DEFENDANT, EDUCATIONAL CREDIT MANAGEMENT CORPORATION, FOR THIS HONORABLE COURT TO TAKE JUDICIAL NOTICE AT THE TRIAL OF THIS MATTER This matter came before the Court on the Request of the Defendant, Educational Credit Management Corporation, For This Honorable Court to Take Judicial Notice at the Trial of This Matter [# 10] and ECMC’s Supplemental Exhibits [# 14]. Specifi...
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MEMORANDUM OF OPINION Introduction Before the court for consideration are two motions filed in two unrelated Chapter 13 cases that involve virtually identical facts and legal questions that have been argued together to the court: (a) a Motion to Compel Payments to Secured Creditor filed by Ford Motor Company (“FMC”) in the case of In re Jerry and Cynthia Hogan, Case No. 04-82031-SGJ-13; a...
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ORDER ON THE HEART GROUP P.L. MOTION FOR ADMINISTRATIVE CLAIM AGAINST THE ESTATE FOR WRONGFUL DISCONNECTION AND REMOVAL OF THE HEART GROUP P.L.’S PHONE SYSTEM AND FOR SANCTIONS (Doc. No. 238) THE MATTER under consideration is a Motion for Administrative Claim against the Estate for Wrongful Disconnection and Removal of the Heart Group P.L.’s Phone System and for Sanctions (Doc. No. 238), filed ...
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*252 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This matter comes before the Court on Motion for Summary Judgment (“Motion”) filed by General Dynamics Corporation and Electric Boat Corporation (“Defendants”). Defendants seek summary judgment on the “New Fraud Allegations,” defined herein, alleged by W. Ryan Hovis (“Plaintiff’), as Trustee for Marine Energy Systems Cor...
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ORDER ON DEFENDANTS’ MOTIONS FOR CONTINUATION OF MONTHLY LIVING EXPENSES On May 11, 2006, chapter 7 debtor Gary Krause filed a motion to extend the $3,700 monthly living allowance previously entered by the Court for an additional three months, through July, 2006.1 On May 25, 2006, defendant Richard Krause, as trustee of the Kansas Children’s Trusts (KCT) I, II, III, IV, and V, the Gary E. Kraus...
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OPINION INTRODUCTION The debtors, who reproduce and distribute motion picture titles in the home video market, filed a voluntary chapter 7 1 petition after a district court judgment for willful copyright infringement was entered against them for statutory damages plus interest, attorney’s fees and costs in the sum of $893,077.11. The judgment creditor then obtained...
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MEMORANDUM DECISION DENYING THE CHAPTER 7 TRUSTEE’S OBJECTIONS TO THE DEBTOR’S DISCHARGE This adversary proceeding (the “Adversary Proceeding”) was commenced by the filing of a complaint (the “Complaint”) by John S. Pereira, as Chapter 7 trustee (the “Trustee” or “Plaintiff’) of the bankruptcy estate of Ginger Young, the debtor in the above-captioned Chapter 7 case and the defendant in th...
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MEMORANDUM OF DECISION AND ORDER Introduction *625 In a prior decision 1 the Court disqualified the defendants’ witness, Scott P. Peltz, C.P.A., from submitting a report and testifying as an expert on (1) the total enterprise value of the defendant Addus Health Care, Inc. (Addus), a privately held company, as of January 8, 2002, and (2) the exchange value of a...
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MEMORANDUM-OPINION This matter is before the Court on the Motion for Summary Judgment of Defendant James Strozdas (“Strozdas”), the Motion for Summary Judgment of Plaintiff Randall Scherer, Trustee (“Trustee”) for the Estate of Quality Communications, Inc. (“QCI”) and the Motion for Summary Judgment of Defendant J.P. Morgan Chase Bank, N.A., as successor by merger to Bank One, N.A. an...
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ORDER ON MOTION TO HOLD DANNY PARROTT IN CONTEMPT AND MOTION TO QUASH SUBPOENA OR FOR PROTECTIVE ORDER This cause came on for consideration of the following motions and responses: 1. Motion For Contempt on Danny Parrott (Doc. #111) filed on behalf of Creditors William Jones, Alva Lee, Carol Lee, and Donald Ursitz (hereinafter “Creditors”); 2. Danny Parrott’s Memorandum in Opposition to Motion Fo...
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OPINION Tidewater Finance Company (“Tidewater”) appeals the bankruptcy court’s order *598 denying its motion to terminate the automatic stay to sell a repossessed motor vehicle and overruling its objection to confirmation of the chapter 13 plan proposed by Laquita Curry (“Debtor”) based on the plan’s “cram down” treatment of its claim secured by the vehicle. The bankruptcy co...
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McDONALD, Bankruptcy Judge. The United States Department of Education (the “DOE”) appeals from the judg *655 ment of the bankruptcy court 1 determining that Debtor’s obligation to the DOE on her student loans was discharged under 11 U.S.C. § 523(a)(8). We affirm. I. Debtor Leah E. Cumberworth (“Leah”) attended the University of Iowa from 1984-1992. She obt...
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MEMORANDUM OPINION ON DEBTORS’ MOTION FOR ORDER DIRECTING THE INTERNAL REVENUE SERVICE TO CONSIDER DEBTORS’ OFFER IN COMPROMISE This cause came on for hearing on April 6, 2006, on the Debtors’ Motion for Order Directing the Internal Revenue Service (“IRS”) to Consider Debtors’ Offer in Compromise (Doc. 133), filed May 20, 2005, and the Response of the United States in Opposition to Debtors’ M...
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MEMORANDUM OPINION On this date, the Court considers the complaint to determine dischargeability and objection to discharge filed by Brian Daniel and Christy Daniel in the matter of William C. Boyd’s bankruptcy proceeding. The issues at bar are (1) whether Boyd’s discharge should be denied under 11 U.S.C. § 727(a)(2)(A) for allegedly failing to disclose personal property with an inten...
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MEMORANDUM OPINION ON OBJECTION TO CONFIRMATION OF HONDA FEDERAL CREDIT UNION This cause came on for hearing on March 9, 2006, to consider confirmation of the Chapter 13 Plan (Doe. #2) filed by James and Kileen Payne (the “Debtors”), and the Objection to confirmation (Doc. #20) filed on behalf of Honda Federal Credit Union. Present at the hearing were the Chapter 13 Trustee Frank Pees...
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Decision Determining Lien Priority This is a Motion to Determine Lien Priority. The debtor in this case was a general contractor. It filed for bankruptcy on December 7, 2004. Prior to filing, a creditor attempted to garnish the debtor’s bank account at Wachovia Bank, N.A., trapping some $98,750. After the filing, the trustee successfully avoided the garnishment hen as a preference. A disp...
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Decision Regarding Reaffirmation Agreement CAME ON for consideration the foregoing matter. The debtor filed a reaffirmation agreement pursuant to 11 U.S.C. § 524(c). This section generally provides that a debtor may agree to reaffirm a debt, excusing the creditor from the effects of the bankruptcy discharge. See Matter of Turner, 156 F.3d 713, 714 (7th Cir.1998). Congress amended this section...
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*30Decision on Motion for Partial Summary Judgment The Defendant in this case moves for partial summary judgment with regard to one count in the Plaintiffs complaint. Plaintiff has objected to the debtor’s discharging the plaintiffs credit card debt, on grounds that the debtor obtained the debt through false pretenses, a false representation or actual fraud. See 11 U.S.C. § 523(a)(2). Plaintiff a...
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OPINION Debtors/Appellants Daniel D. Polimino and Jennifer Polimino, (“Debtors”), appeal a judgment entered by the United States Bankruptcy Court for the District of Colorado in favor of the Chapter 7 Trustee, M. Stephen Peters, (“Trustee”), denying Debtors’ claimed exemption in proceeds from the refinancing of their home mortgage. Debtors claim that the proceeds from the refinancing are ...
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MEMORANDUM OPINION Before the court for ruling is the motion of plaintiff Kennicott Brothers Co. pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, Fed.R.Civ.P. 15(a) (made applicable by Fed. R. Bankr.P. 7015), to file an amended complaint objecting to the discharge of debtors Tom and Svetlana Fidanovski. For the reasons that follow, the motion is denied. 1. Backgrou...
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MEMORANDUM DECISION AND ORDER ESTIMATING ASBESTOS PI CLAIMS FOR VOTING PURPOSES ONLY This is an asbestos bankruptcy. The debtor, Quigley Company Inc. (“Quigley”) and its non-debtor parent company, Pfizer Inc. (“Pfizer”), are seeking to confirm Quigley’s Third Amended Plan of Reorganization under Chapter 11 of the Bankruptcy Code, dated Oct. 6, 2005 (the “Plan”)(ECF Doc. #505), to deal wit...
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ORDER This matter came before the Court on a complaint (the “Complaint”) filed by the Chapter 7 Trustee, Plaintiff M. Stephen Peters (the “Plaintiff’) to avoid and recover a transfer made to Wray State Bank (the “Defendant”) by Takk Harold Kerst, the debtor herein (the “Debtor”). The Defendant pled in its answer that the *420 transfer should be protected by the earmarking doc...
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MEMORANDUM OF DECISION Withdrawing Orders to Show Cause and Denying Motion to Dismiss The above referenced debtors each filed a bankruptcy petition without the required proof of pre-petition credit counseling. The plain language of the Bankruptcy Code’s new eligibility provisions appears to mandate dismissal of the cases. However, there are extraordinary circumstances present...
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MEMORANDUM OPINION This adversary comes before the Court on the Motion for Summary Judgment filed by T.K., a minor, by D.M., as next friend (“Plaintiff’), against Donald Love (“Debtor”), for a determination of dis-chargeability under 11 U.S.C. § 523(a)(6), of any damages that Plaintiff obtains for the willful and malicious injury caused by Debtor. In support of the Motion for Summary ...
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OPINION GRANTING MOTION TO CONVERT CHAPTER 7 CASE TO A CHAPTER 13 CASE After this chapter 7 case was filed, Debtor moved to convert it to chapter 13. *62 The motion was opposed by some creditors and the Court held an evidentiary hearing. The Debtors’ schedules indicate they were the sole “owners”(shareholders) of “A & 0 Builders, Inc.,” which appears to ha...
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OPINION This matter comes before the court upon the Complaint to Determine Non-Dis-chargeability pursuant to 11 U.S.C. § 523(a)(6) and § 523(a)(9), filed by Carl Daniel Simons, Jessy James Simons and Justin Kyle Simons. Presented in this adversary proceeding are claims that arise in a case referred to this court by the Standing Order of Reference entered by the United States District Court fo...
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*291 MEMORANDUM OF DECISION Before this Court is the “Trustee’s Objection to the Debtor’s Claim of Exemption,” filed by Jack E. Houghton, the Chapter 7 Trustee (the “Trustee”). The Trustee argues that the exemption claimed by Edward R. Szwyd (the “Debtor”), pursuant to G.L. c. 188, § 1 (the “Massachusetts Homestead Exemption” and the “Massachusetts Homestead Statute,” respect...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION This cause came on for hearing on May 3, 2006, upon the Motion for Allowance of an Administrative Expense (Doc. 60) filed on behalf of First Bank of Ohio, Tiffin (“the Bank”), and the Debtor’s Response thereto (Doc. 61). Present at the hearing were Michael Bornstein representing the Bank and Crystal Zellar representing the Debtor...
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MEMORANDUM OPINION Crouch Supply Company (“Crouch”) filed this adversary proceeding against Piknik Products Company, Inc. (“Piknik”) seeking a declaration of the respective rights of the parties in equipment called a “Juicy Juice System” located at Piknik’s plant in Montgomery, Alabama. Crouch claims title to the property. Alternatively, Crouch contends that it has a lien on the property ...
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ORDER RE MOTION TO COMPEL PRODUCTION OF DOCUMENTS (CRIME FRAUD) On March 2, 2006, the court heard Trustee’s motion to compel the production of documents based on the crime-fraud exception to the attorney-client privilege. The court has considered the papers filed and the arguments presented at the hearing. For the reasons stated below, the court denies the motion in part and grants the motion in ...
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MEMORANDUM DECISION ON CROSS-MOTIONS FOR SUMMARY ADJUDICATION BY KEN DOOLITTLE AND THE COUNTY OF SANTA CRUZ Before the Court are cross-motions for summary adjudication brought by Ken *809 Doolittle (“Doolittle”) and the County of Santa Cruz (“the County”). I. INTRODUCTION In July 1992 this Court issued an Order Authorizing Sale Free and Clear of Liens (“the 1992...
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Athough the plaintiff has framed the present controversy as a dispute involving the discharge of obligations resulting from a judgment of divorce, the outcome will depend upon the meaning of a trustee’s sale that is subject to any lien or encumbrance of record. On October 21, 2003, the New York State Supreme Court granted to Mary Beth Milner a divorce from Michael S. Milner, her husband of almo...
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MEMORANDUM OF OPINION DENYING MOTION TO DISMISS AND RESERVING JUDGMENT ON THE APPOINTMENT OF A CHAPTER 11 TRUSTEE Before the Court is a motion by Empyrean Investment Fund, L.P. (“EIF”) for an order (i) dismissing the Chapter 11 case of the debtor, Epoch Investments, L.P. f/k/a Empyrean Investments, L.P. (the “Debtor” or “Epoch”), for lack of subject matter jurisdiction, or in the alternat...
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Opinion Regarding Motions Related to Garnishee Defendants These matters are before the Court following lengthy judicial proceedings in Michigan and Florida. The proceedings began on June 24, 2002 when Kevin Adell filed an involuntary bankruptcy petition against John Richards Homes Building Co., LLC. On July 18, 2002, the Court dismissed the involuntary petition as a bad faith filing. ...
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OPINION RE: UNITED STATES TRUSTEE’S MOTION TO DISMISS PURSUANT TO 11 U.S.C. SECTION 707(b) The United States Trustee (“UST”) filed a motion to dismiss Wendy Ann Welch’s Chapter 7 proceeding under Section 707(b) of the Bankruptcy Code. 1 The motion is denied. *249 FACTUAL BACKGROUND Ms. Welch lives in Quinnesee, which is a small community in Michigan’s upper peninsula. Ms. Welch is m...
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AMENDED OPINION REGARDING CONFIRMATION OF CHAPTER 13 PLAN Table of Contents to Opinion I. Introduction..............................................................732 II. Relevant Facts............................................................732 III. Pioneer’s Property Interests................................................734 A. Pawnbrokers and the Pawning...
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*358ORDER SUSTAINING OBJECTION TO EXEMPTIONS This matter came before the Court on the trustee’s objection to exemptions claimed by the debtor. Christine A. Longe appeared on behalf of the Chapter 7 Trustee, Nauni Jo Manty. Jeffrey M. Bruzek appeared on behalf of the debtor, Robin D. Espey. At the conclusion of the hearing, the Court took the matter under advisement. Based upon all of the files, re...
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MEMORANDUM OPINION CONCERNING DEADLINE FOR FILING OBJECTIONS TO DISCHARGE AND TO DISCHARGEABILITY OF DEBTS WHEN CLERK OF COURT HAS AFFIRMATIVELY MISSTATED THE DEADLINE In three separate motions, the parties to this bankruptcy case have postured for decision the determination of the deadline for objecting to discharge and to dis-chargeability of debts when the clerk of court has given notice of ...
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MEMORANDUM OPINION, FINDINGS, AND CONCLUSIONS REGARDING SEPARATE WRITTEN ORDER GRANTING MOTION TO RECONSIDER (doc #21) AND, AFTER RECONSIDERATION, AFFIRMING ORDER REOPENING CASE (doc # 18) Merck & Co., Inc. (“Merck”) seeks to deny Kenneth Havis (the chapter 7 “Trustee”) the ability to reopen this bankruptcy case to prosecute a lawsuit against Merck. Technically, Merck’s motion is a...
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DECISION & ORDER BACKGROUND On May 21, 2006, Daniel L. Jewell and Melissa A. Jewell (the “Debtors”), filed a petition initiating a Chapter 7 case, and Lucien A. Morin, II was appointed as their Chapter 7 Trustee (the “Trustee”). On the Schedules and Statements required to be filed by Section 521 and Rule 1007, the Debtors, who did not reside in New York State for the 730 days pri...
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MEMORANDUM The chapter 13 debtor, Clifton Williams, Jr. has filed a “motion for a stay,” which has triggered two objections. As will be discussed, at bottom this contested matter involves differing interpretations propounded by the parties of new bankruptcy law provisions found in 11 U.S.C. § 362(c)(3). An evidentiary hearing was held, and the remaining interested parties have submitted p...
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This is an appeal and cross-appeal from a Judgment of the United States Bankruptcy Court for the District of Nebraska issued on February 3, 2006, in which the court granted judgment, awarded monetary damages, and imposed a constructive trust, in favor of the plaintiff, Rick D. Lange, the Chapter 7 Trustee (the “Trustee”) of debtors Brook Valley IV, Joint Venture, and Brook Valley VII, Joint Ven...
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MEMORANDUM OPINION ON OBJECTION TO DEBTOR’S EXEMPTION This cause came on for evidentiary hearing on January 6, 2006, upon Trustee’s Objection to Debtor’s Exemption (Doc. 8) and Debtor’s Response to Trustee’s Objection to Exemption (Doc. 11). Present at the hearing were Christal Caudill as Chapter 7 Trustee (“Trustee”) and Michael Gunner representing Dawndi Lee Duemey (“Debtor”). ...
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The underlying question turns on who bears the burden of proof and the correlative risk of nonpersuasion regarding the amount owed on a disputed claim in a bankruptcy case. The answer is that the substantive burden of proof is the same as under applicable nonbankruptcy law and is not affected by the evidentiary presumption created by Federal Rule of Bankrupt *701 cy Procedure 3001(...
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MEMORANDUM OPINION Plaintiff Kirston A. Farelli seeks a determination in this adversary action that a debt owed to her by debtor Joseph A. Farelli is excepted from discharge by § 523(a)(5) or § 523(a)(15) of the Bankruptcy Code. Debtor denies that the debt lies within the scope of either provision and insists that it is dischargeable. Judgment will be entered in favor of plaintiff and aga...
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MEMORANDUM OPINION REGARDING OBJECTION TO DEBTORS’ DISCHARGE The debtors filed a joint petition for relief under Chapter 7 on September 8, 2003, principally to discharge up to $930,753 of obligations from personal guarantees of the debts of a failed business. 1 The trustee argues that the debtors should be denied their Chapter 7 discharge because, in anticipation of filing,...
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MEMORANDUM OPINION ON DEBTOR’S MOTION TO MODIFY CHAPTER IB PLAN On December 15, 2003 Floyd and Mer-line Turnbull (“Debtors”) filed this bank *431 ruptcy case under Chapter 13 of the Bankruptcy Code. Debtors’ Amended Chapter 13 Plan (“Plan”) was confirmed on February 24, 2004. Key Bank USA, N.A. (“Key Bank”) held a security interest in the Debtors’ vehicle. Subse...
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MEMORANDUM ON TRUSTEE’S MOTION TO DISMISS This contested matter is before the court on the Trustee’s Motion to Dismiss and Notice of Hearing (Motion to Dismiss) filed by the Chapter 13 Trustee, Gwendolyn M. Kerney, on June 22, 2006, requesting an order dismissing this bankruptcy case due to the Debtor’s failure to timely obtain the credit counseling briefing required by 11 U.S.C. § 10...
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MEMORANDUM ON OBJECTION TO DEBTORS’ CLAIM OF EXEMPTION This contested matter is before the court on the Objection to Debtor’s [sic] Claim of Exemption (Objection) filed on May 3, 2006, by the Chapter 7 Trustee, Ann Mostoller (Trustee), objecting to the Debtors’ claimed homestead exemption in a tract of land adjoining their residence. A preliminary hearing on the Objection was held on May 25, 20...
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MEMORANDUM This matter comes before the Court on the Motion to Have Unencumbered Equity *615 in Real Estate Commonly Known as 1007 Johnson Farm Road, Louisville, Kentucky 40245 Preserved for the Benefit of Bankruptcy Estate for the Unsecured Creditors Under 11 U.S.C. Section 551 filed by LPP Mortgage, Ltd. (hereinafter “LPP”), an unsecured creditor. While the Chapter 7 Trustee (hereinafter “T...
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OPINION Creditor/Appellants Aaron J. Korngold and Healthcare Acquisitions, Inc., (hereinafter referred to jointly as “Korngold”), appeal from an order of the bankruptcy court for the Western District of Oklahoma which authorized the trustee to enter into a settlement with Creditor/Defendant/Appellee Foxglove. Korngold argues that the bankruptcy court erred for the following reasons: (1) t...
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OPINION Andrews Davis Law Firm (“Andrews Davis”) appeals from an order of the Bankruptcy Court for the Western District of Oklahoma (the “bankruptcy court”) approving a Settlement Agreement between the Trustee and Foxglove, Inc. (“Foxglove”) in Adversary Proceeding No. 01-1122-WV. Andrews Davis argues that the bankruptcy court erred with respect to the following: (1) in its conclusion that An ...
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MEMORANDUM ON MOTION FOR SUMMARY JUDGMENT On November 30, 2005, the Plaintiff filed a Complaint to Avoid Preferential Transfers (Complaint), asking the court to avoid, pursuant to 11 U.S.C.A. § 547 (West 2004), 1 transfers made to the Defendant, Gruen Marketing Services, Inc., by the Debtor, to grant him a judgment in the amount of $25,528.19, representing the aggregate sum...
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MEMORANDUM This is an adversary proceeding by a chapter 7 trustee against the debtor’s former husband for the turnover of a Cessna aircraft. The proceeding is before the court on cross motions for summary judgment. For the reasons that follow, the court is of the opinion that both motions should be denied. I. On May 30, 1995, the defendant purchased a Cessna C-172 aircraft f...
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ORDER GRANTING LAND HOME SERVICE, LLC’S MOTION TO STRIKE DEBTOR’S OBJECTION TO CLAIM 9 AS LEGALLY INSUFFICIENT This case came before the Court upon Debtor’s Objection to Claim No. 9 (“Objection”), Land Home Service, LLC’s (“Land Home”) Motion to Strike Debtor’s Objection to Claim No. 9 as Legally Insufficient, or in the Alternative, to Strike for Failure to Plead with Particularity as Require...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court on Daim-lerChrysler Financial Services Americas, L.L.C.’s, successor by merger to Daimler-Chrysler Services North America, L.L.C., (“DaimlerChrysler”) Motion to Set Aside Order Denying Motion to Confirm Termination of the Automatic Stay (“Motion”). A hearing was held on July 19, 2006 (the “Hearing”). Debtor and Debtor’s cou...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court on Daim-lerChrysler Financial Services Americas, L.L.C.’s, successor by merger to Daimler-Chrysler Services North America, L.L.C., (“DaimlerChrysler”) Motion to Set Aside Order Denying Motion to Confirm Absence of the Automatic Stay (“Motion”). A hearing was held on July 19, 2006 (the “Hearing”). Debtors and Debtors’ counse...
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MEMORANDUM AND NOW, this 18th day of August, 2006, upon consideration of the adversary complaint filed by Arnold Naylor, one of the instant debtors (hereafter “the Debt- or”), wherein the Debtor seeks a determination by the Court that (a) to except from his Chapter 7 discharge a pre-petition student loan indebtedness that he owes to the State of New Jersey Higher Education Student Assistance ...
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ORDER FINDING THAT DEBTORS ARE ELIGIBLE FOR CHAPTER 13 RELIEF This case comes before the Court on Debtors’ Amended Chapter 13 Plan Dated: October 7, 2005 (docket # 48) [the “Amended Plan”]; Debtors’ Motion to Confirm Chapter 18 Plan Dated October 6 [sic], 2005 (docket # 50) [the “Motion to Confirm”]; and Judson Creditors’ Renewed Objection to Deb...
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MEMORANDUM OF OPINION The debtor David Caravona moves to reopen his chapter 7 case to ask that creditor Sunset Station Casinos, Inc. dba Sunset Station Hotel & Casino (Station Casinos) and the Clark County, Nevada district attorney (district attorney) be held in contempt for violating the bankruptcy code’s automatic stay and discharge injunction by taking steps to collect a...
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MEMORANDUM ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT On October 5, 2005, Plaintiffs Beth Williams and Rebecca Jaynes obtained a judgment (“Judgment”) in the Circuit Court of Jackson County, Missouri, 1 against, inter alia, the Debtor, Donald Dean Adams, and (per the findings of the Circuit Court) the Debtor’s alter-ego, Echo’s Restaurant and Lounge. The Debtor filed bankruptcy...
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MEMORANDUM I. INTRODUCTION Several matters are before the Court: the Motion of Margaret E. Davis-Mullen, Trustee of Pastel Realty Trust, for Relief *461 from the Automatic Stay, and the Opposition to the Motion filed by the Debtors, Mark and Sandra Lemieux (the “Debtors”); 1 and the Objection of Margaret E. Davis-Mullen, Trustee of Pastel Realty Trust, to Debtors’ Chapter 13 Plan, and the...
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MEMORANDUM ON EXPEDITED MOTION FOR EXTENSION OF TIME UNDER § 521 FOR PROPERTY TO REMAIN PROPERTY OF THE ESTATE, TO EXTEND THE STAY, FOR TURN-OVER OF SECURED PROPERTY AND FOR CASE TO REMAIN OPEN This contested matter is before the court on the Expedited Motion for Exten *294 sion of Time Under § 521 for Property to Remain Property of the Estate, to Extend the Stay, for Tur...
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ORDER This matter came before the Court on the Motion by Susan Page McDaniel to Vacate Discharge Order and Dismiss Chapter 7 Case with Representation that United States of America Does Not Oppose the Same (Main Case Doc. No. 22) and the Motion by Susan Page McDaniel to Dismiss Adversary Case Without Prejudice With Representation that United States of America Does Not Oppose the Same (Adv.Pro....
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MEMORANDUM OF OPINION AND ORDER Introduction Before the Court are two motions relating to the Court’s grant of authority to Northwest Airlines Corporation and its affiliated debtors (the “Debtors”) to reject a collective bargaining agreement with their flight attendants, now represented by the Association of Flight Attendants-CWA (“AFA”). Pursuant to § 1113 of the Bankruptcy Code, th...
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DECISION ON SECOND MOTION TO REJECT COLLECTIVE BARGAINING AGREEMENT Before the Court is the second motion of debtor Comair, Inc. (“Comair,” “Company” or “debtor”) to reject its collective bargaining agreement (the “Flight Attendant Agreement”) with its flight attendants represented by the International Brotherhood of Teamsters (the “IBT” or “Union”) under Section 1113 of the Bankruptcy Code, ...
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MEMORANDUM DENYING OBJECTION TO EXEMPTIONS AND ADDRESSING LIEN AVOIDANCE The matter before the Court is the objection of creditor Frontier Farm Credit, aka Farm Credit Services (hereafter “FCS”) to the Debtor’s homestead and *97 vehicle exemptions 1 and Debtor’s related motion to avoid lien of FCS. 2 FCS appears by Joanne B. Stutz of Evans & Mullinax, P....
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ORDER ON (1) ADEQUACY OF DEFENDANTS’ ASSET DISCLOSURES (Dkt. 98, 100 and 108); (2) DEFENDANT RICHARD KRAUSE’S APPLICATION TO EMPLOY LAW OFFICES OF BRIAN G. GRACE (Dkt. 102) AND APPLICATION FOR COMPENSATION FOR ATTORNEY FEES AND EXPENSES (Dkt. 103 and 104); (3) DEFENDANT GARY KRAUSE’S APPLICATION FOR ENGAGEMENT OF REDMOND & NAZAR, L.L.P. AS SPECIAL COUNSEL TO THE TRUSTEE (Dkt. 28); (4) DEFENDANT G...
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MEMORANDUM OPINION David M. Mezzenotte, an unsuccessful stalking horse bidder for the business assets of Vincent Anthony Tropea (the “Debtor”), requests that this Court award him a “finder’s fee” of $3,000 to offset his “unrecovered costs.” The Debtor and Shell Equipment Company object to the award of any finder’s fee on the grounds that no contractual basis exists for awarding the requested ...
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MEMORANDUM OPINION This matter comes before the court on the Chapter 13 Trustee’s (Trustee) and United States Trustee’s (UST) objections to confirmation of the Debtor’s Chapter 13 plan dated February 6, 2006. After briefing and oral argument, the matter was submitted to the court. Facts: The relevant facts are undisputed: Debtor filed his Chapter 13 petition on February 3, ...
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT AS MOOT AND GRANTING MOTION TO DISMISS COUNTERCLAIM This proceeding came before the Court upon Defendant Connie Fowler Scott’s (“Scott”) Motion for Summary Judgment (“Motion for Summary Judgment”), Defendant Alexander G. Smith’s, as Chapter 7 Trustee (“Trustee”), Response to Scott’s Motion for Summary Judgment (“Trustee’s Response to Motion fo...
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DECISION ON ORDER DENYING. IN PART, TRUSTEE’S OBJECTION Background On June 8, 2006, the Chapter 7 Trustee, John Paul Rieser (the “Trustee”) filed an Objection to Debtor’s Claimed Exemption in Spousal Allowance Received From Deceased Husband’s Estate Pursuant to 0.R.C. § 2106.13(A) and Memorandum in Support, Combined With Notice to All Creditors and Parties in Interest. (Doc. 27) The Debto...
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DECISION DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Background On February 24, 2006, the Plaintiff, American Express Centurion Bank, filed a complaint to determine that debts on a credit card account were non-dischargea-ble pursuant to 11 U.S.C. § 523(a)(2)(A) and (C). (Doc. 1) On March 23, 2006, the Debtors filed an answer which denied the essential allegations of the complaint. (Doc. 3) O...
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MEMORANDUM OPINION 1 Before the Court is the Debtors’ Motion for an Order Pursuant to Rule 9019 of the *290 Federal Rules of Bankruptcy Procedure Approving the Amendment to the Stipulation and Agreement of Settlement Dated as of November 12, 2004 (the “9019 Motion”), and the Motion of Charles L. Grimes for Relief from the Automatic Stay Pursuant to 11 U.S.C. § ...
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MEMORANDUM OPINION The matter before the Court is a Motion to Dismiss filed by defendant, J.P. Morgan Chase Bank, N.A., as Trustee (“J.P. Morgan”), along with joinders to the same filed by defendants Carnegie Financial Group, Inc. (“Carnegie Financial”) and Paragon Home Lending (“Paragon”). Pursuant to the Motion to Dismiss, these defendants ask that the Court dismiss various lender l...
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OPINION The United States Department of Justice and the United States Department of Education (collectively, the “Creditors”), timely appeal a final judgment entered by the United States Bankruptcy Court for the District of Kansas discharging the Chapter 7 debtor’s Department of Education student loans (the “523 Loan”) pursuant to the “undue hardship” provision in 11 U.S.C. § 523(a)(8), and debto...
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MEMORANDUM OPINION Before the court is Plaintiffs Motion for Summary Judgment (the “Motion”) filed *402 by LDS Express, Inc. (“LDS,” sometimes also referred to herein as Plaintiff) by which Plaintiff seeks judgment respecting (1) its Original Complaint filed against Shawn Brown (the “Trustee” or Defendant) in his capacity as chapter 7 trustee for Kingway Logistics, Inc. (...
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OPINION DENYING CONFIRMATION OF CHAPTER 13 PLAN Introduction This Chapter 13 case involves an issue arising under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). The issue is whether the phrase “applicable commitment period” is a temporal requirement that defines how long a debtor’s Chapter 13 plan must be, or simply a mathematical formula for dete...
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SUSTAINING TRUSTEE’S OBJECTION TO DEBTOR’S EXEMPTION This case involves the Chapter 7 Trustee’s objection to a tenancy by the entire-ties property exemption claimed by the debtor, Regina Guzior (Debtor), pursuant to 11 U.S.C. § 522(b)(2)(B). Trustee argues that Debtor is not entitled to her exemption, as claimed, since she and her non-debtor spouse were indebted to joint creditors at ...
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MEMORANDUM OPINION 1 Before the Court is the Complaint of Robert L. Moore (the “Plaintiff’) objecting to the dischargeability of any debt due to him as support pursuant to sections 523(a)(2)(B), 523(a)(4), and 523(a)(5) and objecting to the discharge of Patricia Ann Strickland (the “Defendant”) for failing to disclose assets on her Schedules pursuant to section 727(a)(4). A...
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MEMORANDUM DECISION This Chapter 11 case is before the Court upon the motion of Ferrosource International, Inc. to allow its late filed claim. (Doc. 68). Ferrosource seeks to file an untimely proof of claim pursuant to Rules 3003(c)(3) and 9006(b)(1) of the Federal Rules of Bankruptcy Procedure. This motion was called for hearing on August 1, 2006, and this matter was taken under advisement. ...
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ORDER This matter came before the Court on the Trustee’s Objection to Debtor’s Claim of Exemptions (“Objection”) (Doc. No. 29) filed by Kenneth D. Herron, Jr., the Chapter 7 Trustee herein (“Trustee”), in which the Trustee objects to certain exemptions claimed by Elizabeth Ann Caliri, the Debt- or herein (“Debtor”). Evidentiary hearings were held on February 6, 2006 and March 27, 2006...
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MEMORANDUM OPINION This matter came before the Court on the Motion to Dismiss Complaint filed by the defendants, Alabama Department of Public Safety (“DPS”) and W.M. Coppage, the Director of DPS (together with DPS, the “Defendants”). The Court has reviewed the statement of facts filed by debtor-plaintiff, Phillip A. Talley (“Talley” and the “Plaintiff’) and the Defendants [docket nos. 10 and ...
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*913 ORDER This matter came before the Court on the Amended Motion for Partial Relief from the Automatic Stay with its supporting Memorandum (collectively, the “Grange Motion”) (Doc. Nos. 65, 66) filed by Grange Mutual Casualty Company, Grange Indemnity Insurance Company, and Trustgard Insurance Company (collectively, “Grange”) and the Motion for Relief from the Automatic Sta...
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ORDER OVERRULING OBJECTION TO HOMESTEAD EXEMPTION This matter came on for hearing upon the Objection to Property Claimed as Exempt 1 (“Objection”) filed by Carla P. Mus-selman, Trustee (the “Trustee”). The Trustee objects, pursuant to 11 U.S.C. § 522(0 to the homestead exemption claimed by Michael L. Dezonia (the “Debt- or”). Evidentiary hearings on the Objection were held ...
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ORDER This matter came before the Court on the Chapter 13 Trustee’s Motion to Compel John V. Head, Attorney for Debtors, to Disgorge Fees Received On or About June 7, 2005 in the Amount of $10,000.00 (“Motion to Compel”), the John Vernon Head’s Response to Trustee’s Motion to Disgorge Fees Received on or About June 7, 2005 and Petition to Approve Payment of Fees, *435 and...
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Memorandum Opinion and Order This matter came before the Court for a hearing on May 22, 2006, on a Motion for Summary Judgment filed by AVCO Corporation, a Motion for Summary Judgment filed by JP Morgan Chase Bank, N.A., as administrative agent for the Debtors’ pre-petition and post-petition lenders, AVCO’s Opposition to JP Morgan Motion for Summary Judgment, and JP Morgan Chase Bank’s Response...
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ORDER This matter is before the court on the trustee’s objection to debtor’s claimed exemption. On August 1, 2006, the court conducted a hearing in New Bern, North Carolina. The debtor listed on her bankruptcy petition an interest in a house on a half-acre lot in Belhaven, North Carolina. She claimed an exemption in the real property, although she admits that the property has not been used ...
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OPINION RE: TRUSTEE’S FEBRUARY 1, 2006 OBJECTION TO AMENDED EXEMPTIONS Betty A. Wallace (“Debtor”) filed a petition for relief under Chapter 7 of the Bankruptcy Code 1 on October 15, 2005. Debtor’s Schedule A indicates that she owns an undivided one-half interest in real property located in Battle Creek, Michigan. That interest became property of the estate upon the filing ...
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ORDER SUSTAINING DEBTORS’ OBJECTION TO PROOF OF CLAIM FILED BY CAPITAL ONE AUTO FINANCE AND OVERRULING OBJECTION TO CONFIRMATION FILED BY CAPITAL ONE AUTO FINANCE Debtors object to the unsecured Proof of Claim filed by Creditor Capital One Auto Finance. Capital One Auto Finance objects to confirmation of the Debtors’ proposed Chapter 13 Plan, which proposes to surrender the vehicle se...
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MEMORANDUM OPINION This matter came before the Court for hearing on April 4, 2006, for confirmation of Debtors’ Chapter 13 plan and the Objection to Confirmation filed by creditor Nu-vell Financial Services Corp. (hereinafter, “Nuvell”) on January 11, 2006. At the conclusion of the hearing, the Court took the issue of confirmation under advisement, specifically, to consider the meanin...
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MEMORANDUM OPINION On Debtors’ Motion to Abrogate, the Court now reconsiders the Administrative Order of January 3, 2005, which outlines the procedure for payment of attorneys fees in Chapter 13 cases. FACTS Debtors filed their Chapter 13 bankruptcy petition on November 15, 2005, after the October 17, 2005 effective date of most the provisions of the Bankruptcy Abuse Pre...
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MEMORANDUM OPINION Before the court is the Motion for an Order Approving Settlement Agreement with Potomac Electric Power Company (“Pepeo”) Pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure (the “Pepeo Motion”) filed by Mirant, 1 the Motion for an Order Approving (I) The Settlement Agreement with Southern Maryland Electric Cooperative, Inc. Pursuant to Rule...
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MEMORANDUM OPINION Few things are as ingrained in the American way of life as the automobile. *580 Unless one lives in an urban area with a sophisticated mass transit system, an automobile is considered indispensable. Without a car, one cannot shop, take the kids to soccer practice, or run any of the other errands which comprise a day in the life of an average American. The q...
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ORDER ON DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO THE PROVISIONS OF FEDERAL RULES OF BANKRUPTCY PROCEDURE 7009 AND 7012 This matter came before the Court on the Defendants’ Motion to Dismiss First Amended Complaint Pursuant to Provisions of Federal Rules of Bankruptcy 7009 and 7012[# 19] and the Plaintiffs Opposition thereto [# 23]. For the reasons set forth herei...
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MEMORANDUM OPINION REGARDING EMERGENCY MOTION FOR SANCTIONS FOR WILLFUL VIOLATION OF THE AUTOMATIC STAY HSM-Kennewick, LP (“HSM”) filed a voluntary Chapter 11 petition on March 3, 2006. HSM and WO Kenneywick, LLC (“WOK”) comprise the entire membership of The Orchard at Hansen Park, LLC (“Orchard”). At issue in this contested matter is whether section 362 of the Bankruptcy Code, t...
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MEMORANDUM OPINION ON OBJECTION TO ECAST CLAIMS On June 16, 2005, the Court heard the objection of Rosetta Armstrong (“Debtor”) to the proofs of claim filed by eCast Settlement Corporation (“eCast”). 1 This memorandum opinion constitutes the Court’s findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052. The Court has jurisdiction over this matter purs...
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OPINION GRANTING DEFENDANT’S MOTION TO COMPEL Travelers Casualty and Surety Company of America (“Travelers” or “Defendant”) issued a bond to guaranty performance by Global Crossing Bandwidth, Inc., (“Global Crossing”) in a transaction between Enron Broadband Services, L.P. (“EBS” or “Plaintiff’) and Global Crossing. EBS initiated the instant adversary proceeding against Travelers to compe...
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MEMORANDUM OPINION This matter has been submitted for decision on the Plaintiffs Motion for Summary Judgment and the Defendant’s Response. The Plaintiff commenced this action on February 6, 2006 by filing a Complaint to Determine Dischargeability of Debt pursuant to Bankruptcy Code sections 523(a)(2)(A) and (B) and 523(a)(6). The Defendant’s debt to the Plaintiff arises from his personal guaran...
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OPINION DENYING PETITION FOR RECONSIDERATION OF THE ORDER GRANTING THE DEBTORS’ NINETEENTH OMNIBUS OBJECTION TO PROOFS OF CLAIM (EMPLOYEE CLAIMS CONCERNING BONUSES AND OTHER INCENTIVES RELATED TO OWNERSHIP OF SECURITIES) Before the Court is a Petition for Reconsideration of the Order Granting the Debtors’ Nineteenth Omnibus Objection to Proofs of Claim (the “Motion”) filed by the claimant David...
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MEMORANDUM OPINION Before the court is Defendant’s Motion to Dismiss and for Judgment, and Motion for More Definite Statement, Under Bankruptcy Rule 7012(b) (the “Motion to Dismiss”) filed by Matthew John Layton (“Debtor”). Catalyst Partners, Inc. (“Catalyst”), filed an objection to the Motion to Dismiss as well as a brief in support thereof. The court heard oral argument on the Motion to Dismi...
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MEMORANDUM OPINION AND ORDER Before the Court is the Final Application of Locke Liddell & Sapp LLP for *843 Allowance of Compensation and Reimbursement of Expenses (the “Final Fee Application”) for the period from October 1, 2005 through April 21, 2006 (the “Final Fee Period”) and the objections thereto by the Bean Group and the Reorganized Debtor Teraforce Technology Cor...
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MEMORANDUM This adversary proceeding is before the court on cross motions for summary judgment. Also, on July 13, 2006, the court entered an order that scheduled the cross motions for summary judgment for oral argument and that directed the parties to show cause why the adversary proceeding should not be dismissed for failure to present a justiciable case or controversy. Having considered the...
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MEMORANDUM OPINION This matter came before the court on May 24, 2004 on the trial of the Complaint *815 to Determine Dischargeability of Debt pursuant to 11 U.S.C. § 523 filed by Tum-mel & Carroll. The complaint was dismissed and an appeal was taken. The matter was remanded to this court by order of the United States Fifth Circuit Court of Appeals for further findings con...
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OPINION Before the Court are cross-motions for summary judgment in the adversary complaint filed in the above-captioned matter. For the reasons that follow, I will deny Debtor’s motion for summary judgment and dismiss the complaint for lack of personal jurisdiction. Procedural History On June 13, 2005, Debtor filed for relief under chapter 11 of the Bankruptcy Code (the ...
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MEMORANDUM OPINION Beatrice Hall, Plaintiff, filed on December 12, 2005, a Complaint For Exception To Discharge Under Section 523. Louise Jackson, Defendant, filed a response and asserted a counterclaim on January 6, 2006. Plaintiff did not file a response to the counterclaim. Defendant asks the Court to rule on her counterclaim if the Court determines that her obligation to Plaintiff...
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MEMORANDUM OF DECISION ON MOTION OF THE TRUSTEES OF NATIONAL ELEVATOR INDUSTRY BENEFIT PLANS FOR AN ORDER DIRECTING PAYMENT OF DELINQUENT CONTRIBUTIONS AS ADMINISTRATIVE EXPENSES The trustees (the “Trustees”) of the National Elevator Industry Benefit Plans (the “Plans,” consisting of the Pension Plan, the Welfare Plan and the Educational Plan, as defined below) seek an order directing the...
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MEMORANDUM OPINION This adversary proceeding is before the court on the trustee’s motion for a default judgment as to Jose Donaldo Aguirre and Maximo Portillo. The trustee previously avoided the debtor’s March 2001 transfers of two properties as fraudulent conveyances under § 55-80 of the Code of Virginia (1950) as made applicable by Bankruptcy Code § 544(a). Three individuals and three other...
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MEMORANDUM OPINION This case is before the court on the motion of St. Anna’s Home, Inc., to dismiss the amended complaint as to it for failure to state a claim upon which relief can be granted. F.R.Bankr.P. 7012(b) incorporating F.R.Civ.P. 12(b)(6). Applicable Standard The Court of Appeals for the Fourth Circuit set out the standard for determining whether a complaint st...
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MEMORANDUM OPINION, FINDINGS, CONCLUSIONS AND ORDER FOR PREPARATION AND PRESENTATION OF FORM OF JUDGMENT DISMISSING CLAIMS BY DORIS BARNES AGAINST DEFENDANT MDR, GRANTING JUDGMENT AGAINST DEFENDANT TAWES, AND PROVIDING FOR PAYMENT OF ROYALTIES ACCRUING AFTER FEBRUARY 2002 Doris Barnes (“Plaintiff’ or “Barnes”) seeks judgment against O. Lee Tawes III (“Tawes”) and Marlin Data Research (“MDR”), f...
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MEMORANDUM OPINION ON DISCHARGEABILITY COMPLAINT On June 14, 2006, this Court conducted a trial on the Complaint to Determine Dischargeability of Debt, filed by Plaintiff, First National Bank of Wichita Falls. Both sides appeared and offered testimony, documentary evidence, and argument. At the conclusion- of the trial, the Court took the matter under advisement, and gave counsel for each of ...
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Memorandum, of Decision This matter, submitted for decision on a stipulated record, presents a discrete question: Are funds received by Maine debtors in consequence of the federal Earned Income Tax Credit (“EITC”) and the Child Tax Credit (“CTC”) 1 exempt assets under Bankruptcy Code § 522(b)(2) 2 and Maine law? Notwithstanding strong policy arguments to the contrary, I conclude that the ...
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BENCH DECISION ON ASSIGNMENT OF LEASEHOLD INTEREST FOR PROPERTY LOCATED IN PASADENA, MARYLAND In these jointly administered cases under Chapter 11 of the Code, Debtor Ames and its subsidiaries seek to assume and assign an unexpired lease of nonresidential real property located in Pasadena, Maryland (the “Ames Store”) to Wal-Mart Real Estate Business Trust, a subsidiary of Wal-Mart Stores, Inc. ...
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MEMORANDUM ON MOTION FOR SUMMARY JUDGMENT On October 21, 2005, the Plaintiff filed a Complaint for Declaratory Relief, which was amended on December 21, 2005, by an Amended Complaint for Declaratory Relief (Complaint), asking the court to grant it the following relief: (1) a declaratory judgment determining that the Plaintiff is entitled to a portion of funds recovered by the Defendant from Fir...
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OPINION This matter comes before the Court for decision on the issue of whether the Defendant, Capital Crossing Bank (“Capital Crossing”) has a valid, perfected security interest in certain assets of the Plaintiff, Duesterhaus Fertilizer, Inc. (“Duester-haus”). This matter is a core proceeding pursuant to 28 U.S.C. § 157(K) to determine the validity, extent, or priority of a lien. Duesterhaus is a...
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MEMORANDUM 'OPINION ON MOTION FOR CLARIFICATION OF DISCHARGE INJUNCTION This matter is before the court in response to a request from the Circuit Court of Loudoun County, Virginia — which this court has treated for procedural purposes as a motion by the debtor — to determine the effect of the discharge injunction on a personal injury suit brought against the debtor by Elana Byer. A hearing was ...
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MEMORANDUM OF DECISION (WRITTEN OPINION) This matter is before the court on the motion for partial summary judgment filed by Plaintiffs Leland E. Frost, Jackie S. Frost and Tracy Kolarovsky (hereafter *461 “Plaintiffs”). 1 Plaintiffs filed amended complaints against Defendant-Debtor Carmen Civiello (hereafter “Civiello” or “Defendant”) alleging grounds for nondis-c...
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ORDER ON CONFIRMATION OF VALENCIA FLOUR MILL, LTD.’S PLAN OF REORGANIZATION THIS MATTER is before the Court on confirmation of Valencia Flour Mill, Ltd.’s Plan of Reorganization (“Plan”). Creditor Beal Service Corporation a/k/a LPP Mortgage Limited (“Beal”) was the only party to object to the Plan. The Court held a final hearing on the Plan on July 18, 2006 and took the matter under a...
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CORRECTED MEMORANDUM OPINION * Before the court is the motion of the defendant, Daniel Katz, to dismiss the complaint for failure to state a claim for relief, or, in the alternative, to grant summary judgment. This is an action by a chapter 11 debtor-in-possession, Simon Ben-Ami, objecting to two secured claims filed by Mr. Katz in the aggregate amount of $672,419 — one arising fr...
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348 B.R. 783 (2006) In re Gary Wayne PYATT, Debtor. Gary Wayne Pyatt, Debtor — Appellant, v. Tracy Brown, Trustee — Appellee. No. 06-6004EM. United States Bankruptcy Appellate Panel for the Eighth Circuit. Submitted: July 26, 2006. Filed: August 31, 2006. Counsel who presented argument on behalf of the appellant was Mr. Gary D. Bollinger of St. Louis, Missouri. Counsel who presented argument on b...
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MEMORANDUM OPINION This adversary proceeding was tried before the Court on July 25, 2006. In this case, W. Joseph Burns, in his capacity as the Chapter 7 trustee (the “Plaintiff’), seeks authority to sell the interest of both Deanie H. Creech (the “Debtor”) and a co-owner in certain real property. At the hearing, Robert E. Price, Jr. represented the Plaintiff and John H. Boddie repres...
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DECISION AND ORDER RE MOTION TO DISMISS The court will deny the motion to dismiss filed by the defendant Barnes for the following reasons. The plaintiff seeks under 11 U.S.C. § 727(d)(3) to revoke Barnes’s discharge based on Barnes’s alleged refusal to comply with several orders. Under 11 U.S.C. § 727(d)(3), the court shall revoke a discharge if “the debtor committed an act speci...
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MEMORANDUM OF DECISION ON APPLICATIONS FOR PREJUDGMENT REMEDIES I. INTRODUCTION Before the Court at this time are two Applications for Prejudgment Remedies (hereafter, “Applications”) filed by the Plaintiff. The Applications require the Court to determine whether the Plaintiff has demonstrated “probable cause” that it will prevail on the merits at trial against Defendants Steven and Amy Sullivan ...
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MEMORANDUM OF OPINION ON PLAN CONFIRMATION APPEARANCES On March 19, 2006, Oneida Ltd. and certain of its direct and indirect domestic subsidiaries (collectively, the “Debtors”) filed petitions for reorganization under Chapter 11 of the Bankruptcy Code. 1 On *82 the same day, the Debtors filed a plan of reorganization. On July 7, 2006 they filed a first amended plan...
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MEMORANDUM OF OPINION AND ORDER 1 Before the Court is the Fourth Omnibus Non-Substantive Objection to Claims brought by the Post Effective Date Committee (the “Committee”). The Committee objects to the claim of Lancaster Colony Corporation (“Lancaster”) because it was filed after the bar date. For the reasons set forth below, the Court will overrule the objection. 1. BACKGROUND On Feb...
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MEMORANDUM OPINION This court held a hearing on May 16, 2006 on the United States Trustee’s Motion to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(1), (b)(2), and (b)(3). This Court has jurisdiction under 28 U.S.C. § 1334(a), (b) and (d), 28 U.S.C. § 151, 28 U.S.C. § 157(a) and (b)(1), and the Standing Order of Reference in this District. This is a core proceeding under 28 U.S.C. § 157...
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MEMORANDUM OPINION ON TRUSTEE’S OBJECTION TO EXEMPTIONS I. INTRODUCTION This Memorandum Opinion addresses the issue of whether after-tax contributions to an ERISA-qualified savings plan constitute property of the bankruptcy estate. 1 The Debtor claimed her savings plan as exempt under Texas state law. [Docket No. 1, Schedule C.] The Trustee objected to the exemption of the...
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OPINION J. Michael Morris, Chapter 7 Trustee (“Trustee”), appeals an order of the bankruptcy court limiting his recovery of post-petition payments in a lien avoidance action to the value of the collateral on the date of bankruptcy and denying his motion to recover postpetition payments made in excess of the value of that collateral. 1 For the following reasons, we affirm the de...
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MEMORANDUM OPINION This matter came on for trial on February 21, 2006 on a complaint under 11 U.S.C. § 727(d)(1) to revoke the discharge of Gary and Dianne Landry (the “debtors”) filed by the Chapter 7 trustee, Claude C. Lightfoot, Jr. (the “trustee”). For the reasons set forth more fully below, the complaint is dismissed. 1. Background On December 9, 2003, the debto...
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OPINION Nicholas Lee Kuhnel and Elizabeth Ann Kuhnel (“Debtors”) appeal an order of the *530United States Bankruptcy Court for the District of Wyoming sustaining the trustee’s objection to their claimed exemption of a 2002 Chevrolet Trailblazer. For the following reasons, we REVERSE the bankruptcy court’s order and remand with instructions. I. Appellate Jurisdiction This Court has jurisdiction ov...
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MEMORANDUM OPINION The court has held a hearing on the “1st Chapter 13 Fee Application” (Docket No. 47) filed by Reese W. Baker. The following are the Findings of Fact and Conclusions of Law of the court. A separate Judgment will be entered denying the application. To the extent any of the Findings of Fact are considered Conclusions of Law, they are adopted as such. To the extent any of the C...
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MEMORANDUM OPINION The court heard Parker Trailer Sales, Inc.’s Motion to Dismiss Case (Docket No. 32) and confirmation of the Debtors’ Amended Chapter 13 Plan (Docket No. 27). Parker Trailer Sales, Inc. (“Parker”) filed an Objection to confirmation of Debtors’ Amended Chapter 13 Plan (Docket No. 31) and the court has reviewed the docket, file, pleadings therein, evidence and the argu...
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ORDER DENYING CONFIRMATION AND CONDITIONALLY DISMISSING CASE The trustee filed an objection to confirmation of the plan proposed by the debtors. The trustee asserts that the debtors have not met the “best interest of creditors” test set forth in 11 U.S.C. § 1325(a)(4). The objection came on for hearing on July 10, 2006 after which the parties submitted briefs on the issues of law raised b...
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Memorandum Opinion I.Background The defendant Jefferson County, Alabama wants to condemn real estate owned by the plaintiff-debtor Mr. Eddie Bevelle, Jr. The County intends to build a new county courthouse and new county administrative offices on that and other property. The property is located within the city limits of the City of Bessemer, Alabama, a co-defendant. The complain...
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Memorandum Opinion Regarding Cross Motions for Summary Judgment The matters before the Court are: 1. The Motion for Summary Judgment for the Debtor, Robyn Bennitt filed on January 9, 2006 (Proceeding No. 31); and 2. The Creditor Hood’s Motion for Summary Judgment filed on January 9, 2006 (Proceeding No. 33), as revised by Creditor Hood’s Revised Motio...
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MEMORANDUM OPINION 1 Before the Court is the Emergency Petition for Rule to Show Cause for Violation of Bankruptcy Discharge Injunction (the “Show Cause Petition”) filed by Patrick and Sandra Anderson (the “Debtors”). The Sussex County Federal Credit Union (the “Creditor”) opposes the relief requested by the Debtors. For the reasons stated below, the Court will grant the De...
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MEMORANDUM DECISION IN SUPPORT OF ORDER DETERMINING THAT DEBTORS’ DRIVEWAY IS NOT A NUISANCE Ronnie P. Weinhold and Sandra D. Ber-reth-Weinhold (hereinafter, the “Debtors”) owned a parcel of property in the city of Oak Creek, Wisconsin. The front part of the parcel abutted Ryan Road, and included a single family residence and two-car garage; the rear portion was unimproved vacant land, wi...
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DECISION SUSTAINING TRUSTEE’S OBJECTION TO DEBTOR’S CLAIMED EXEMPTION IN TAX REFUND AND SUSTAINING OBJECTION TO DEBTOR’S EXCLUSION OF CHILD TAX CREDIT FROM PROPERTY OF THE ESTATE The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a) and 1334 and the standing General Order of Reference in this District. Proeedurally before the court is Chapter 7 Trustee John Rieser’s Object...
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MEMORANDUM DECISION THIS MATTER came before the Court on July 6, 2006, on a Motion for Permanent Injunction and a Motion to Close Chapter 15 Case filed by Ho Seok Lee as CourL-Appointed Manager of Young Chang Co., Ltd. (Young Chang). The Motion for Permanent Injunction was opposed by Samsong Mfg. Co. (Samsong). Based on the pleadings and arguments presented, the Court’s findings of fact and con...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Baccala Realty, Inc. (the “Creditor”) for judgment on the pleadings pursuant to Federal Rule of Bankruptcy Procedure 7012 and Federal Rule of Civil Procedure 12(c). For the reasons set forth herein, the Court grants the motion with respect to Counts I and III of the complaint objecting to the discharge of Robert Ja...
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MEMORANDUM OPINION Currently before the Court is the Motion for Summary Judgment filed by the Debtor, Larry E. Wagner, as joined by the Chapter 13 Trustee, and the Motion of Defendant, Christiana Bank & Trust Company for Summary Judgment Pursuant to F.R.B.P. 7056 filed by the Defendant, Christiana Bank & Trust Company. Both motions relate to the Objection to Clai...
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MEMORANDUM OPINION Before the Court is a Motion for Civil Contempt and Sanctions filed by Kyle David Emmons (“Debtor”) and a Motion to Set Aside Default Judgment filed by Kim Melinda Emmons n/k/a Kim Melinda Webb (“Webb”). The Court heard evidence and arguments on the above referenced matters on March 16, 2006, solicited post-hearing briefs and took the matters under advisement. These are core ...
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MEMORANDUM OPINION 1 Before the Court is the Motion of the United States Trustee (the “UST”) to dismiss the chapter 7 case of Joseph Pennington, Jr. (the “Debtor”) for abuse pursuant to section 707(b)(1) and (3) of the Bankruptcy Code. The Motion is opposed by the Debtor. For the reasons stated below, the Court will grant the Motion and dismiss the Debtor’s case, unless he ...
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ORDER SUSTAINING OBJECTION OF THE OFFICIAL UNSECURED CREDITORS COMMITTEE TO CLAIM NO. 11 OF DAVID AND NANCIE PETERSON Before the Court is the objection of the Official Unsecured Creditors Committee (the “Committee”) to claim no. 11 filed by David and Nancie Peterson (the “Peter-■sons”) in this case. 1 The Committee appears by Martin Ufford of Redmond & Nazar, L.L.P. and the...
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ORDER In this Chapter 13 case, Drive Financial Services (“Drive Financial”) has two objections to the manner in which pre-confirma *585 tion adequate protection payments are being handled. Drive Financial argues that the debtor must make the adequate protection payments directly to Drive Financial and that these payments cannot be administered by the Chapter 13 Trustee. D...
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MEMORANDUM OF DECISION ON ALLOWANCE OF ATTORNEYS’ FEES AND DISPOSITION OF SU-PERSEDEAS BOND The debtor in this chapter 13 case successfully pressed a novel legal argument in this court and on appeal to the district court. She established that a non-judicial foreclosure auction does not immediately extinguish the debtor’s interest in the mortgaged property. This enabled her to sell the pro...
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MEMORANDUM DECISION REGARDING CHAPTER 7 TRUSTEE’S REQUEST FOR FEES The matter before the Court is the chapter 7 Trustee’s Final Report. The Trustee argues that the Court need not consider the reasonableness of the fees requested in this case because recent changes to the Bankruptcy Code under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the “BAPCPA”) entitle him to...
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AMENDED DECISION This matter is before the court with regard to the issues raised by a motion for an order confirming the termination of the automatic stay, filed on behalf of Daimler-Chrysler Financial Services. Such orders are a new feature of the Bankruptcy Code. The Bankruptcy Abuse and Consumer Protection Act of 2005 scattered a number of provisions throughout the Bankruptcy Code which s...
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ORDER AND OPINION This matter came on for hearing on July 6, 2006 in Durham, North Carolina upon a motion by America’s Servicing Company (“the Creditor”) to confirm termination or absence of the stay imposed by 11 U.S.C. § 362 (“the Stay”). Shawna Staton appeared on behalf of the Creditor; Donald D. Pergerson appeared on behalf of the Debtor; and Benjamin E. Lovell appeared *131 on behalf of ...
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MEMORANDUM OF DECISION In this adversary proceeding, the chapter 7 trustee (the “Trustee”) for the above-referenced debtor’s (the “Debtor”) estate seeks avoidance of certain transfers (the “Transfers”) and recovery of $23,871.54 (plus interest and costs) as preferences paid to the above-referenced defendant (the “Defendant”) involving, inter alia, three checks made payable ...
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MEMORANDUM OPINION This matter is before the Court on the Joint Stipulations of Plaintiff Betty Jo Ann Owens (“Owens”) and Defendant Joe L. Bolger (“Bolger”) (Adv.Doc. 12); the Trial Brief of the Plaintiff Betty Jo Ann Owens in Support of Recovery of Attorney Fee in Pursuit of Non-Dischargeable Order Under 11 U.S.C. Section 523(a)(4) (Adv.Doc. 15) (“Owens’ Brief’); and Defendant’s Rep...
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MEMORANDUM OPINION RE: OBJECTION TO DISCHARGE-ABILITY OF DEBT This matter comes before the Court on the complaint of the Ohio Crime Victims Reparations Fund (“plaintiff’ or “OCVRF”) objecting to the dischargeability of a claim pursuant to 11 U.S.C. § 523(a)(6) [docket # 1] and defendant-debtor’s answer thereto [docket # 21]. The Court held a trial in this matter on July 10, 2006. Appearing at t...
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OPINION The issue before the Court is whether the Debtor may claim an exemption in life *477 insurance proceeds payable to her upon the death of her live-in boyfriend. The Debtor, Mary Ann Dry, filed a petition pursuant to Chapter 7 of the Bankruptcy Code on April 17, 2006. On Schedule C — -Property Claimed As Exempt, the Debtor claimed as exempt property she described as “Claim for Life In...
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MEMORANDUM This chapter 7 case is before the court on the debtor’s Amended Application for Waiver of the Chapter 7 Filing Fee for Individuals Who Cannot Pay the Filing Fee in Full or in Installments pursuant to 28 U.S.C. § 1930(f). For the reasons set forth below, the application will be denied. This is a core proceeding. See 28 U.S.C. § 157(b)(2)(A). I. The debtor Robin Lynn Bradshaw f...
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MEMORANDUM OPINION Jerome Ruffin filed this adversary complaint requesting the Court to determine that the debt Larry and Josephine Soberg (collectively the “Sobergs”) owe him is excepted from discharge under 11 U.S.C. § 523(a)(2). The Sobergs filed a motion for summary judgment asserting that they are not liable for the underlying debt in question. The Court agrees with the So-bergs’ contentio...
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MEMORANDUM DECISION RE MOTION TO AVOID JUDICIAL LIEN Of PACIFIC BELL DIRECTORY AND SBC ADVERTISING, L.P. Before the court is the Debtors’ motion to avoid the judicial lien of Pacific Bell. The court has jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334 and 11 U.S.C. § 522. This is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A), (B) and (K). For the reasons set forth below,...
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MEMORANDUM OPINION Before the court is the First Amended Objection of Genesis Tax Loan Services, Inc., to Debtors’ Confirmation and Request for Attorneys Fees (the “Objection”) filed by Genesis Tax Loan Services, Inc. (“Genesis”). The court held a hearing on the confirmation of the chapter 13 plan of Douglas Wayne Davis and Doris Marie Davis (collectively, “Debtors”) on July 20, 2006....
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MEMORANDUM-OPINION This matter came before the Court for trial on May 22, 2006 on the Complaint to Determine Dischargeability of Student *777 Loans Based on Undue Hardship of Plaintiff/Debtor Phillip Edward Kitterman (“Debtor”) against Defendants Sallie Mae Servicing, L.P. (“Sallie Mae”), Educational Credit Management Corp. (“ECMC”) and the United States Department of Edu...
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AMENDED MEMORANDUM OPINION Codebtors Samuel Scott Salyer and Melissa Renee Salyer filed chapter 7 on Octo *69 ber 16, 2005. Before the filing, they had incurred substantial student loan debts. 1 By early 2006, Samuel’s outstanding student loan balance was $50,149.16. 2 Melissa owed $63,932.40. 3 The debtors sued for a determination that thei...
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OPINION GRANTING TRUSTEE’S MOTION FOR APPROVAL OF AGREEMENT WITH LAPEER COUNTY BANK & TRUST AND FOR TRANSFER OF REAL PROPERTY FREE AND CLEAR OF LIENS, INTERESTS AND ENCUMBRANCES This matter came before the Court on the Trustee’s Motion For Approval of *760 Agreement with Lapeer County Bank & Trust Company (“LCBTC”) and for the transfer of real property free and...
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MEMORANDUM OPINION ON THE DEBTOR’S OBJECTION TO TEMEKA FARR’S PROOF OF CLAIM AND TEMEKA FARR’S MOTION TO DEEM PROOF OF CLAIM AS TIMELY FILED I. INTRODUCTION Nazu, Inc. (the Debtor) commenced this case when it filed its bankruptcy petition on August 6, 2004. [Docket No. 1.] On August 26, 2005, Temeka Farr (Farr) filed a Proof of Claim in this bankruptcy case in the amount of $30,125.0...
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DECISION INTRODUCTION There is a bitter lesson to be learned from this adversary proceeding: When a majority stockholder of a corporation lets personal and/or family interests interfere with and dictate the course of the corporation’s business operations to the detriment of the minority stockholders, it spells “trouble — big, big trouble — with a capitalT.” 1 Th...
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MEMORANDUM OF DECISION The motion of defendant/cross-complainant Tevis Thompson, Jr. (the “Trustee”), seeking summary judgment on the claims asserted against him in the complaint filed in the above-captioned adversary proceeding and on his cross-claims against the plaintiff/cross-defendant Ralbert Brooks-Hamilton (the “Debtor”) and others came on for hearing before the above-captioned Cou...
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OPINION I. INTRODUCTION Before the court are the objections filed by NuNet, Inc. (the “Debtor” or “NuNet”) to five proofs of claim filed by Rudolph Geist, Edward Geist, Edward J. Geist, Jr., Stacey Geist and Josephine Geist (the “Geist Claimants”). All five claims relate back to a purchase agreement signed in March 1999, whereby NuNet purchased all of the existing shares ...
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Memorandum Opinion The matters before the Court are: 1. A Motion for Judgment on the Pleadings (Proceeding No. 13) filed on December 9, 2005, by the defendant-debtor; 2. A Motion for Summary Judgment (Proceeding No. 14) filed on December 12, 2005, by the plaintiff; 3. A Response to Debtor’s Motion for Judgment on the Pleadings (Proceeding No...
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ORDER ON MOTIONS TO VACATE ORDERS OVERRULING OBJECTIONS TO CONFIRMATION The matters before the Court are motions by Daimler Chrysler Financial Services Americas, L.L.C. (“Daimler Chrysler”) and GMAC, L.L.C. (“GMAC”) to vacate this Court’s orders overruling their objections to confirmation of the Debtors’ Chapter 13 plan. The Court has jurisdiction over these matters pursuant to 28 U.S.C. §§ 1...
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MEMORANDUM OF DECISION Before the Court is a complaint filed by Melissa A. Deceder (the “Debtor”) against the Pennsylvania Higher Education Assistance Agency, d/b/a American Education Services (“PHEAA”). In Count I of her complaint, the Debtor asks this Court to rule that her student loans are dischargea-ble pursuant to 11 U.S.C. § 523(a)(8). In Count II, the Debtor seeks damages for ...
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AMENDED OPINION DENYING RECEIVER’S FIRST MOTION TO DISMISS. The issue here is who, if anyone, may file a Chapter 11 petition for a Debtor after a state court has appointed a Receiver for the debtor, enjoined the Debtor from filing a bankruptcy petition, and removed the Debtor’s corporate officers and directors. The Court concludes that federal bankruptcy law preempts state law and remains...
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DECISION DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a) and 1334, and the standing General Order of Reference in this District. This matter is before the court on the motion for partial summary judgment filed by Plaintiff Trustee Thomas R. Noland [Adv. Doc. 36]; the responsive memorandum filed in opposition by De...
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*106 MEMORANDUM OF DECISION ON PETITION OF FOREIGN REPRESENTATIVES FOR RECOGNITION OF FOREIGN MAIN PROCEEDINGS UNDER 11 U.S.C. §§ 1515 AND 1517(b)(1) AND REQUEST FOR RELIEF UNDER 11 U.S.C § 1521(a) THAT MAY BE GRANTED UPON RECOGNITION On July 31, 2006, Kenneth M. Krys and Christopher Stride (together, the “JOLs”), as Joint Official Liquidators of all but one of the above-capt...
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MEMORANDUM DECISION This Chapter 13 case came before the Court for a hearing on confirmation of the Debtors’ Plan on June 7, 2006. The Debtors were present by counsel Michael Brock and Chapter 13 Trustee Curtis C. Reding was also present. The Chapter 13 Trustee objects to confirmation contending that the Debtors’ Plan fails to pay all of their projected disposable income. (Doc. 27). The Court...
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MEMORANDUM-OPINION This matter is before the Court on the Motion to Approve Global Settlement Agreement of Debtor Ronald G. Sheffer (“Debtor”). The Court considered the Debtor’s Motion, the Limited Objection to Motion to Approve Settlement of GSMS 1999-CI Owensboro, LLC (“GSMS”), the Limited Objection to Motion and Approve Settlement of National City Bank of Kentucky (“NCB”), the Obje...
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MEMORANDUM OF DECISION Allowing, In Part, the Final Applications for Fees and Expenses of-. (1) Skadden, Arps, Slate, Meagher & Flom, LLP, (2) Obuchowski & Emens-Butler, (3) Wilmer Cutler Pickering Hale & Dorr LLP, (4) KPMG, LLP, and (5) Weiser, LLP Prior to determining fees in this case, the salient criteria this Court had applied *393 when considering fee appli...
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MEMORANDUM DECISION ON APPLICATION OF JUDICIAL ESTOPPEL TO CLAIM NO. 1285 FILED BY NICOLE CLARK In early 2002, Nicole Clark was an employee of Keystone Consolidated Industries, Inc. d/b/a Keystone Steel & Wire (“Keystone”); however, on May 10, 2002, her employment with Keystone was terminated. On September 25, 2002, Clark filed charges with the Equal Employment Opportunities Commission (E...
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OPINION Debtor made the final payment on his settlement of an embezzlement claim within 90 days of filing his bankruptcy petition. The chapter 7 1 trustee demanded repayment from the appellant, which settled for a reduced amount. Before making payment, appellant filed a complaint against debtor asserting that its claim against *606 debtor was revived, and seeking a determination of nondisch...
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OPINION Creditor United Student Funds, Inc. (“USF”), by and through Sallie Mae, appeals from an order denying its motion for reconsideration of an order sustaining an objection to its proof of claim. We hold that the bankruptcy court properly denied USF’s motion without reviewing the merits of the underlying claim objection. The record also supports the bankruptcy court’s finding and conc...
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MEMORANDUM OF DECISION Chapter 13 Debtors Marlin and Juanita Dayley seek sanctions against Creditor Wilson Bates based upon an alleged violation of the automatic stay. Debtors ask to recover actual damages for costs and attorneys fees, as well as $58.20 to reimburse Debtors for their travel related to resolving the stay violation. Debtors also seek unspecified amounts for the emotional di...
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MEMORANDUM OF DECISION Background After the Court granted Chapter 7 Trustee L.D. Fitzgerald’s motion to reopen Debtor Vicki Dougan’s closed bankruptcy case to administer an inheritance, Debtor amended her schedules to claim a homestead exemption in a house devised to her and her sisters under her mother’s will. Docket No. 16. On August 15, 2005, Trustee filed an objection to Debtor’s claim of exem...
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DECISION DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DOC. 74) AND GRANTING DEL NORTE REFI, LLC’S AMENDED MOTION FOR SUMMARY JUDGMENT (DOC. 79) Background Gemini Services, Inc. (Gemini) is the Debtor in possession in this chapter 11 case, which was filed on February 18, 2005. On April 29, 2005, Gemini filed a complaint against Mortgage Electronic Registration Systems, Inc. (“MERS”), Del...
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ORDER RE: MOTION TO DISMISS PURSUANT TO 11 U.S.C. § 707(b)(1) This matter came before the undersigned on July 25, 2006 on Trustee’s Motion to Dismiss pursuant to 11 U.S.C. § 707(b)(1). John F. Schmillen appeared for United States Trustee and Steven G. Klesner appeared for Debtors Chester W. and Cynthia K. Batzkiel. After the presentation of evidence and argument, the Court took the matter...
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MEMORANDUM OF DECISION INTRODUCTION Thomas Kinsey (“Debtor”) filed a voluntary bankruptcy petition on October 14, 2005. See Doc. No. 1. Debtor brought a motion, Doc. No. 9, seeking sanctions for violation of the automatic stay under 11 U.S.C. § 362(h) 1 against one of his creditors, Bonneville Billing & Collections, Inc. (“Bonneville”) and its attorne...
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MEMORANDUM ORDER DENYING 11 U.S.C. § 109(h)(3)(A) WAIVER The Debtor seeks approval of her Amended Certiñcation of Exigent Circumstances under 11 U.S.C. § 109(h)(3)(A). She argues that, in light of the pending creditor sale of her automo *429 bile six days following her filing, “exigent circumstances” existed and that her two, unsuccessful telephonic attempts to obtain the required 11 U.S...
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ORDER IN THIS DISTRICT, at St. Louis. Plaintiff United States Trustee’s (“Movant’s”) Motion to Dismiss Pursuant to 11 U.S.C. § 707(b)(2) was called and heard on July 17, 2006. Prior to the hearing, Mov *596 ant filed a brief and Debtors’ Counsel filed an amended reply and brief. Having received testimonial and documentary evidence as well as having reviewed the record as a whole, the Cour...
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MEMORANDUM OF DECISION Background Creditor/ Plaintiff Applied Capital, Inc. filed a joint motion in Debtor/Defendant Francis Gibson’s bankruptcy case requesting stay relief and asking the Court to abstain from hearing an adversary proceeding it has filed so it may proceed with certain litigation pending in the United States District Court for the District of New Mexico. Debtor objected to the...
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MEMORANDUM OF DECISION INTRODUCTION Edward and Shirley Lopez (“Debtors”) objected to a proof of claim filed by creditors Jude and Sharon Alberts (“the Alberts”). That objection was heard on January 17, 2006, and taken under advisement. The objection will be sustained, in part. The following Memorandum of Decision constitutes the Court’s findings of fact and conclusions of law as required by F...
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MEMORANDUM OF DECISION INTRODUCTION Many of the procedural and substantive requirements for bankruptcy relief were altered by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). 1 Two new requirements apply to debtors who are individuals — they must obtain consumer credit counseling within the 180 days before they file a bankruptcy petition 2 and they must co...
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MEMORANDUM OF DECISION Background At issue is the United States Trustee’s motion to dismiss Neal and Anna Page Amador’s (“Debtors”) chapter 7 bankruptcy case under 11 U.S.C. § 707(b) 1 for substantial abuse. Docket No. 21. The UST asserts Debtors have the ability to fund a chapter 13 plan and should therefore not be allowed relief under chapter 7. Debtors contend they can not possibly offer...
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MEMORANDUM OF DECISION Background In this dispute, chapter 7 Debtor Helen Seibold (“Debtor”) asks the Court to order trustee R. Sam Hopkins to turn over a portion of the sale proceeds realized from the sale of her vehicle because, she argues, they are exempt. Docket No. 30. Trustee asserts that he avoided a security interest Debtor had granted to a creditor on the vehicle, and that u...
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MEMORANDUM OF DECISION Background The Chapter 7 Trustee Lois Murphy (“Trustee”) objected to Debtor Violet Van-sickle’s homestead exemption claim asserted under Or.Rev.Stat. § 18.395 in the proceeds from the sale of her residence. 1 The Court conducted a hearing concerning Trustee’s objection on March 8, 2006, at which time the Debtor elected to forego presentation of testimony and to submit...
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MEMORANDUM OF DECISION INTRODUCTION AND BACKGROUND Jan and Mark Thorien (“Debtors”) filed a chapter 11 bankruptcy petition on February 8, 2006. Doc. No. I.1 Prior to filing their chapter 11 petition, Debtors defaulted on their home mortgage with the holder of a first priority deed of trust, Washington Mutual Bank (“WaMu”). Though there were several attempts to cure or negotiate a resolution of the...
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MEMORANDUM OF DECISION INTRODUCTION Idaho Central Credit Union (“Creditor”) filed a “Motion to Confirm Termination of the Automatic Stay, Compel Surrender of Vehicle, and Authorize Foreclosure upon Vehicle” in this chapter 7 case. See Doc. No. 20 (“Motion”). Creditor contends the 2005 amendments to the Bankruptcy Code not only eliminated a debtor’s right to a “ride-through...
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MEMORANDUM OPINION 1 Before the Court is the Motion of the United States Trustee (the “UST”) to Dismiss the chapter 7 case of Jean Fowler (the “Debtor”) pursuant to section 707(b)(2) and (b)(3). The Debtor opposes the Motion. At the hearing on the Motion, the parties asked the Court to address the following discrete issue: whether the Debtor, for purposes of section 707(b)(...
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OPINION REGARDING TELESERVE SYSTEMS, INC. (“TSI”)’S MOTION FOR AN ORDER DIRECTING (1) THAT TSI’S ALLOWED CLAIM BE CLASSIFIED A CLASS 6A MCI PRE-MERGER CLAIM, (2) PAYMENT OF TSI’S COSTS, EXPENSES AND ATTORNEYS’ FEES, AND (3) PAYMENT OF INTEREST ON TSI’S ALLOWED CLAIM Before the Court is Teleserve Systems, Inc., (“TSI”)’s Motion for an Order Directing (1) that TSI’s Allowed Claim Be Classif...
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OPINION On consideration before the court is a complaint filed by the plaintiff, Robert W. Baker, against the defendanVdebtor, Vickie Lynn Sheffield, referred to herein as the defendant; an answer and affirmative defenses to said complaint having been filed by the said defendant; and the court, having heard and considered same, hereby finds as follows, to-wit: I. The court has jurisdiction of t...
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RULING ON SUMMARY JUDGMENT MOTION I.Introduction This summary judgment motion raises the issue of whether, after the 2001 amendments to Division 9 of the California Commercial Code (the California version of the Uniform Commercial Code (“UCC”)), a creditor can create a judicial lien against personal property 1 belonging to a non-California corporation by filing a notice of judgment lien wit...
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MEMORANDUM OF DECISION Chapter 13 Debtors Edward Schweizer and Cynthia Bennett, husband and wife, seek confirmation of their proposed Chapter 13 plan. Creditor Black Hawke Construction Lending, LLC, objects to confirmation of the plan and asks the Court for stay relief to foreclose its mortgage on Debtors’ house because the plan does not treat its claim as secured. Debtors contend they ef...
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ORDER GRANTING MOTION FOR APPOINTMENT OF NEXT FRIEND Debtor Mary Alice Myers has moved this Court to become the “Next Friend” of her husband and co-debtor, Andrew Gilpen Myers, pursuant to Fed. R. Bankk. P. 1004.1. On June 9, 2006, Debtors Andrew Gilpen Myers and Mary Alice Myers (collectively, “Debtors”) filed a voluntary Chapter 13 bankruptcy petition. The petition was filed electronically ...
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SCHERMER, Bankruptcy Judge. Trent Dales Ginter (“Debtor”) appeals an order of the bankruptcy court denying his motion to avoid the lien of Alliant Bank, Boonville (“Creditor”) in certain tools of the Debtor’s trade on the grounds of res judicata and judicial estoppel. We have jurisdiction over this appeal from the final order of the bankruptcy court. See 28 U.S.C. § 158(b). For the reasons st...
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The trustee and CP Holdings, Inc. appeal from a bankruptcy court 1 order determining that California Public Employees’ Retirement System held a perfected security interest in the debtor’s claim against Kmart. We affirm. BACKGROUND In 1989, the debtor signed a promissory note for $12 million with Principal Mutual Life Insurance Company. Principal endorsed this note to CALPERS, which became t...
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*299 MEMORANDUM OPINION Before the court is the defendants’ motion to dismiss the complaint pursuant to Fed. R. Civ. Proc. 12(b)(1) and (6). 1 For the reasons that follow, the motion will be granted as to the Fair Debt Collection Practices Act counts but denied as to the 11 U.S.C. § 524 counts. Procedural Background The plaintiff, Cynthia D. Shortsleeve (“Sho...
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Memorandum Opinion Before the Court are (1) Defendants’ Motion to Dismiss Plaintiffs’ Complaint for Lack of Subject Matter Jurisdiction and to Enforce a Mandatory Agreement to Arbitrate all Disputes (“Dismissal Motion”) and (2) Plaintiffs’ Motion to Sever and Remand (“Sever/Remand Motion”) (together the “Motions”). The month prior to the filing of this bankruptcy case, Lawrence Turner...
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MEMORANDUM OPINION I. INTRODUCTION In the above-captioned adversary proceeding, a creditor seeks a determination that a debt is nondischargeable pursuant to 11 U.S.C. § 523(a)(9). Before the court is the Motion of Trump Taj Mahal, Pursuant to Bankruptcy Rule 7024, For an Order Authorizing Trump Taj Mahal to Intervene in the Above-Captioned Adversary Proceeding (“the Motio...
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OPINION The issue before the Court is whether a secured creditor’s claim can be bifurcated or “stripped down” under 11 U.S.C. § 506(a) 1 if the debtor has no equity in a certain type of collateral, specifically a motor vehicle purchased for debtor’s personal use within the 910 day period preceding the petition. See 11 U.S.C. § 1325(a)(9). Debtor, Verna D. Rowley, filed a voluntary petit...
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MEMORANDUM DECISION RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND INJUNC-TIVE RELIEF THIS MATTER came on for hearing before the Honorable Patricia C. Williams on August 10, 2006 upon Plaintiffs Motion for Summary Judgment and Injunctive Relief. The Court reviewed the files and records herein, heard argument of counsel, and now renders its written decision. This dispute involves two Leases b...
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MEMORANDUM-DECISION AND ORDER Currently before the court is the Chapter 13 Trustee’s (“Trustee”) objection to confirmation of Frank and Patricia Diagos-tino’s (the “Debtors”) chapter 13 plan pursuant to 11 U.S.C. § 1325(b)(1)(B). It is the Trustee’s position that the Debtors’ deduction for charitable contributions in calculating their disposable income under the means test is not permissi...
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MEMORANDUM DECISION On or about October 9,1997, the debtors created a trust, the Robert P. Bogetti and Deolinda M. Bogetti Retirement Plan and Trust. The res of the trust includes real property located at 3950 W. Durham Ferry Road, Tracy, California (“the property”). The debtors were both the settlors and the beneficiaries of the trust. On May 16, 2000, Bank of America (“BofA”) obtained a judgment...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE OBJECTION BY JOE FLORES TO THE CLAIM OF H. TY KHARAZI On January 24, 2005, H. Ty Kharazi (“Kharazi”) filed a timely proof of claim in the amount of $5,887.50. Attached to the proof of claim as supporting documentation is a copy of a “Memorandum Opinion and Order Granting Plaintiff Joe Flores’ Motion for Attorney’s Fees” (the “District Court ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE MOTION TO AVOID LIEN OF SIRE ENTERPRISES LTD. Plaintiff Loanstar Mortgage Services, LLC filed this adversary proceeding to interplead funds remaining from a nonjudicial foreclosure sale it had conducted. A third party purchased the property at the foreclosure sale, and after payment of the first deed of trust holder, the Bank of America, remainin...
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SUPPLEMENTAL DECISION RE MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING THE CLAIMS RELATING TO THE ATKINS LITIGATION The plaintiff, Roger Schlossberg, is the trustee in the case of the debtor, Benson J. *306 Fischer, under chapter 7 of the Bankruptcy Code (11 U.S.C.). His complaint in this adversary proceeding seeks to deny Fischer a discharge under 11 U.S.C. §§ 727(a)(2), (3), (4)(A), (4)(D...
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MEMORANDUM OF OPINION AND ORDER On July 9, 2004, Jan Earl Tauber, along with his wife Kathy Lee Tauber, filed a petition for relief under Chapter 7 of the United States Bankruptcy Code. Subsequently, on January 20, 2005, Buckeye Retirement Properties of Indiana, L.L.C. (“Buckeye”) filed an adversary proceeding *544 against Jan Earl Tauber (the “Debtor”) 1 , con...
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*862 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This proceeding came before the Court upon Defendant’s Motion for Summary Judgment, Plaintiffs Response to Defendant’s Motion for Summary Judgment, Supplement to Defendant’s Motion for Summary Judgment, and Plaintiffs Request to Defendant’s Supplement for Summary Judgment. Upon the undisputed facts and the arguments ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court upon the complaint filed by Brandon James Maxfield (“Plaintiff’) objecting to the discharge of Bruce Lee Jennings (“Defendant”). The Court conducted a trial on July 22, 2005 and August 2, 2005. In lieu of oral argument, the Court directed the parties to submit legal memoranda in support of their respective positions...
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OPINION ON CONFIRMATION On September 8, 2005, Trans Max Technologies, Inc. (“Trans Max”) filed a voluntary petition for chapter 11 bankruptcy, and thereafter has served as debtor in possession. The court held hearings on confirmation of debtor’s plan on April 26-27, 2006. At these hearings, Samuel Higgins (“Higgins”), Trans Max’s president, testified as to all confirmation issues. The Off...
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OPINION REGARDING PARTIES’ MOTIONS FOR SUMMARY JUDGMENT I. INTRODUCTION Before the Court are the parties’ cross-motions for summary judgment, or in the alternative, partial summary judgment, in the above-referenced adversary proceeding. Both the defendant, Carol Whalen (“Whalen”), executrix for the estate of John C. Baxter (“Baxter” and the “Baxter Estate”), and the plaintiff, Enron Corp. (“E...
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Memorandum Opinion The Debtor-Plaintiff, Steven Estrada (the “Debtor” or “Plaintiff’) filed chapter 13 bankruptcy on June 13, 2005, and commenced this adversary proceeding on January 11, 2006. Debtor’s chapter 13 plan provided for the sale of his house with the net proceeds to be paid to the Chapter 13 Trustee and distributed to allowed claim holders. The Debtor’s house (the “house” o...
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ORDER The matter before the Court is a Motion for Relief from Stay filed on January 26, 2006, by Jeffco Finance & Discount Co., Inc. After notice, a hearing was held on June 13, 2006. Appearing were the debt- or; her attorney Janice Groce, John Frawley for the movant; Joey Contorno, a representative of the movant; and Sims Crawford, the Chapter 13 Trustee. The matter was submitted on the testimon...
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MEMORANDUM DECISION AND ORDER OVERRULING TRUSTEE’S OBJECTION TO DEBTORS’ HOMESTEAD EXEMPTION Under Florida law, debtors have an unlimited homestead exemption. However, new section 522(p) of the Bankruptcy Code 1 now caps the amount of a homestead exemption at $125,000 if a debtor acquires an interest in a homestead within 1,215 days of filing for bankruptcy. The debtors in ...
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MEMORANDUM OPINION The principal question presented in this case is whether a condominium unit owners’ association may demand that a debtor pay condominium assessments, attorney’s fees, costs and interest discharged in bankruptcy but included in a memorandum of lien, the enforcement of which is barred by the statute of limitations. The secondary issue raised is whether the condominium...
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MEMORANDUM OPINION COMBINED WITH RELATED ORDERS AND NOTICE OF THE ENTRY THEREOF THESE CORE PROCEEDINGS under 28 U.S.C. 157(b)(2)(A) come before the Court on Plaintiff Kids World of America, Inc.’s (“Plaintiff’) Complaint for Turnover of Funds, Defendant State of Georgia Department of Early Care and Learning’s (“Defendant”) 1 Answer, Defendant’s Motion to Dismiss and Plaintiffs ...
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Extract of Bench Ruling Denying Motion of Dana Corporation for an Order Authorizing Dana to Enter into Employment Agreements with its President and Chief Executive Officer and Five Key Executives of His Core Management Team Before this Court is Debtors’ proposed compensation plan for Michael J. Burns, the President and Chief Executive Officer (“Mr.Burns”), and five executives, Messrs. Miller,...
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EXTRACT OF BENCH RULING DENYING MOTION FOR ORDER DIRECTING THE DEBTORS TO ASSUME OR REJECT EXECUTORY CONTRACTS WITH SYPRIS AND GRANTING ADDITIONAL RELIEF Before the Court is the Motion of Sy-pris Technologies, Inc. (“Sypris”) for an *146 Order Under 11 U.S.C. § 365(d) Directing Debtors to Determine by October 3, 2006 Whether to Assume or Reject Executory Contracts with Sypris and Granting A...
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*645 MEMORANDUM OPINION CONCERNING UBS AG’S MOTION TO DISMISS TRUSTEE’S SECOND AMENDED AND SUPPLEMENTAL COMPLAINT AND, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT FILED ON MAY 11, 2006 I. INTRODUCTION This is an adversary proceeding in bankruptcy. Plaintiff (“trustee”) is the trustee in the underlying bankruptcy case, in which the debtor is Sukamto Sia (“Si...
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MEMORANDUM OPINION ON MOTION TO RECONSIDER DENIAL OF FEE APPLICATION I.INTRODUCTION This contested matter concerns Reese W. Baker’s Motion to Reconsider Denial of Fee Application (Motion to Reconsider) [Docket No. 139] seeking reconsideration of this Court’s Order Denying Chapter 13 Post-Confirmation Fee Application for Reese W. Baker [Docket No. 136] and an award of $3,891.50 in acc...
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ORDER On the 1st day of June, 2006, there came on for trial Plaintiff Tulsa Spine Hospital’s (“Plaintiff’) action to determine the dis-chargeability of debt pursuant to 11 U.S.C. § 523(a)(4) and (6). Appearing on behalf of Plaintiff was Jay C. Baker. Defendants personally appeared and were represented by Joe D. Tate. The Court heard the sworn testimony of witnesses and viewed exhibits...
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DECISION REGARDING MOTION FOR ORDER CONFIRMING INAPPLICABILITY OF THE AUTOMATIC STAY BACKGROUND AND ESTABLISHED EVENTS Pending before the court are the Creditor’s motion seeking an order that the automatic stay is not in effect in this case and the Debtor’s response that creditor action involving the property in question must occur exclusively in the bankruptcy court during the p...
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MEMORANDUM OF DECISION Background Plaintiff, Chapter 7 Trustee R. Sam Hopkins (“Trustee”), commenced this adversary proceeding seeking an order revoking the discharge previously granted to the debtors in this bankruptcy case, Defendants Thomas and Joanna Hugues. Plaintiff contends that Defendants obtained the discharge by fraud. See 11 U.S.C. § 727(d)(1). 1 Trus...
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MEMORANDUM This case is before the court on a motion for relief from the automatic stay filed by U.S. Bank National Association (“the bank”). The motion seeks an order vacating the stay so that the bank can recover possession from the debtor of a residence that the bank obtained through a prepetition foreclosure sale. Having considered the motion, the undisputed material facts, and the briefs a...
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MEMORANDUM OF DECISION Plaintiff Rickey Errol Owen (“Owen”) filed a petition for bankruptcy relief on November 18, 2003. Prior to filing his bankruptcy petition, Owen was involved in state court litigation with Defendant Jill Lundstrom (“Lundstrom”). Owen listed Lundstrom as a secured creditor on his schedules, but noted the obligation was disputed and that she had an “unsubstantiated claim of li...
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MEMORANDUM OF DECISION In a motion filed on May 15, 2006, Debt- or Joey Carl Gorringe claims Creditor Action Collection Services Inc. violated the § 362 1 automatic stay by attempting to collect on a judgment after Debtor filed for bankruptcy relief. Docket No. 21. An evidentiary hearing concerning Debtor’s motion was conducted by the Court on June 5, 2006. After careful review...
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DECISION ON ORDER TO SHOW CAUSE Debtors filed a petition for relief under chapter 7 of the United States Bankruptcy Code on October 11, 2005. Notice of this filing was served upon all creditors and parties in interest on October 14, which also advised them that a meeting of creditors had been scheduled for December 19, 2005. On November 8, 2005, Fifth Third Mortgage Company filed a mo...
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ORDER SUSTAINING OBJECTIONS TO CLAIMED EXEMPTIONS BY JOHN P. BARBEE, CHAPTER 7 TRUSTEE, AND CREDITOR SANDY COURTS, INC. THIS CAUSE came on to be heard on January 3, 2006 upon (1) the Trustee’s Objection to Debtor’s (sic.) Claimed Exemptions, filed by John P. Barbee, chapter 7 trustee (“trustee”) (C.P. 13), and (2) the Objection to Exemptions and Motion to Set Aside Homestead and Allow Partiti...
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MEMORANDUM OPINION For the reasons stated below, the Court finds that the transfer that is the subject of this adversary qualifies as a transfer in the ordinary course of business. Consequently, the Trustee is not entitled to recover the transferred funds as a preference. Background Tri-Union Development Corporation (“Tri-Union” or “Debtor”) filed for bankruptcy on October 2...
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BENCH DECISION ON MOTION FOR RELIEF FROM STAY Nathaniel S. Mason, Trustee of the Sanford Financial Trust (“Sanford”) filed this motion for relief from the automatic stay (the “Motion”) 1 seeking to proceed against property (the “Property”) of the Debtors, Richard N. Gould, Jr., and Cindy L. Gould (“Richard” and “Cindy” and collectively “Debtors”). Debtors filed a response (the *79 “Response...
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MEMORANDUM OPINION This matter has come before the court on the Motion to Set Aside Injunction filed *443 by creditor Lyle Industries, Inc. (“Lyle”). The injunction Lyle references is contained in the Release of Guaranty Claims 1 in the Order Confirming First Amended Plan of Reorganization by Official Committee of Unsecured Creditors (“the Confirmation Order”),...
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*247 MEMORANDUM OPINION Ms. Eleanor Lindquist’s (“Ms.Lindquist”) Motion to Dismiss Dr. Jeffrey C. Lindquist’s (“Dr.Lindquist”) Chapter 13 Case (the “Motion to Dismiss”) and her Motion for Contempt of Court (the “Contempt Motion”) against Dr. Lindquist were heard on Friday, August 18, 2006 (the “Hearing”). The Motion to Dismiss and the Contempt Motion collectively are referred to herein as the...
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ORDER The matters before the Court are: 1) A Motion of the Insurance Commissioner of the Commonwealth of Pennsylvania for Relief from the Automatic Stay, under Section 862(a), Pursuant to Section 862(d) of the Bankruptcy Code filed on April 21, 2006 (Proceeding No. 21); and 2) The Debtor’s Response to Motion of the Insurance Commissioner of the Commonwealth of Pennsylvania for Relief fro...
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MEMORANDUM OPINION This matter is before the court on the motion of Chapter 13 Trustee Glenn Stearns to dismiss the bankruptcy case of debtors Carolyn Farrar-Johnson and Ronnie Nelson. The trustee complains that the debtors have failed to file an amended plan and amended Schedule J, and the resulting unreasonable delay, prejudicial to creditors, requires dismissal of their case under ...
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Opinion Regarding Ford Motor Credit’s Objection to Chapter 13 Plan On December 23, 2004, Ervin Evans entered into a contract with Ford Motor Credit Company to finance the purchase of a 2005 Ford Escape. Evans agreed to have the weekly payment of $185.82 deducted directly from his paycheck from Ford Motor Company. However, shortly after financing the vehicle, Evans began to experience intermit...
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MEMORANDUM OF DECISION RE MOTION TO DISMISS CASE WITH PREJUDICE On May 26, 2006, debtors Johnathan and Aurora Cortez (“Debtors”) moved to dismiss the above-captioned chapter 13 ease.1 At that time, creditor Cedar Associates (“Cedar”) filed a response in which it urged the Court to dismiss the case with prejudice. In order to give the Debtors an adequate opportunity to respond to Cedar’s request, t...
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MEMORANDUM OPINION ON COMPLAINT FOR VIOLATION OF STAY UNDER § 362 I. Background The matter before the Court is a Complaint for Violation of Stay Under § 362 filed on June 25, 2002, by Mr. Brice M. Hutchings, the debtor. After notice, a trial was held on October 7, 2004. Appearing were the debtor; his attorneys Mr. Andre M. Toffel, Mr. Harrison Willis, and Ms. Heather Belle...
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MEMORANDUM OPINION AND ORDER On August 25, 2006, hearing was held on the motion for contempt filed by Carol *747 Clayton Wilson, et al. 1 (the “Wilson Parties”) by which they requested that the Court find the debtor Ice Melt Products, L.L.C., and its principals C.D. Gray Jr. and Dick Crill, in contempt and that they be punished for their alleged contemptuous ac...
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351 B.R. 470 (2006) In re CONTROLLED POWER CORPORATION OF OHIO, Debtor. Official Committee of Unsecured Creditors of Controlled Power Corporation of Ohio, Plaintiff, v. Caroman Finance Account, Inc., Defendant. Bankruptcy No. 05-60383, Adversary No. 05-6176. United States Bankruptcy Court, N.D. Ohio, Eastern Division. September 8, 2006. *471 *472 Joseph F. Hutchinson, Jr., Cleveland, OH, for Debt...
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OPINION These matters having come before the Court for trial; the Court, having heard sworn testimony and arguments of counsel and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure. By agreement of the parties, these matters were tried together, on July 31, 2006. Both ...
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351 B.R. 626 (2006) In re FLEMING PACKAGING CORPORATION, a Delaware corporation, Debtor. Gary T. Rafool, Chapter 7 Trustee, on behalf of the Estate of Fleming Packaging Corp., Plaintiff, v. The Goldfarb Corporation, a Canadian corporation, Martin Goldfarb, Stanley Goldfarb, Alonna Goldfarb, George Gialenios and Joe Andersen, individually and as former directors and/or officers of Fleming Packagin...
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ORDER DENYING DEBTOR’S MOTIONS TO DISMISS A primary purpose of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) which became effective for cases filed after October 17, 2005 was to counteract the perceived abuse of the Bankruptcy Code by debtors. 1 *793 This case involves the attempt by a Chapter 7 debtor to use the eligibility and aut...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Following trial, the following Findings of Fact and Conclusions of Law are made and to be entered: FINDINGS OF FACT The Parties The Plaintiff 1. Goss Graphic Systems, Inc., n/k/a GGSI Liquidation, Inc. (“Debtor” or “Goss”) manufactured and sold offset printing press systems, among other things, for the newspaper, ...
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351 B.R. 313 (2006) In re INSILCO TECHNOLOGIES, INC., et al., Debtor. Amphenol Corporation and Amphenol Technical Products International Co., Plaintiff, v. Chad Shandler, as Trustee of the Insilco Liquidating Trust — Unsecured Creditors Series, Defendants. Bankruptcy No. 02-13672 (KJC), Adversary No. 05-52403 (KJC). United States Bankruptcy Court, D. Delaware. September 18, 2006. *314 *315 Mauree...
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ORDER DENYING MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT This proceeding came before the Court upon Motion to Set Aside Entry and Default Judgment for Lack of Notice filed by defendant Carol Schweitzer (“Schweitzer”) and Plaintiffs’ Response in Opposition to Motion to Set Aside Entry and Default Judgment for Lack of Notice. *746 Background Prior to the Debtors’ Chapter 11 filing, Sedgwi...
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ORDER OVERRULING HANTOVER, INC.’S OBJECTION TO CONFIRMATION OF BETTCHER INDUSTRIES, INC.’S PLAN OF REORGANIZATION DATED JULY 10, 2006 AND CONFIRMING BETTCHER’S PLAN Creditor Bettcher Industries, Inc.’s (“Bettcher”) plan of reorganization dated *849 July 10, 2006 1 came on for confirmation hearing on August 22, 2006. Robert C. Folland of Thompson Hiñe LLP, Cleve...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon Motion to Convert Case to Chapter 7 filed by BTDT Investments, Inc. (“BTDT”). 1 The Court conducted hearings on April 6, 2006 and May 4, 2006. The Court elected to take the matter under advisement. Upon the evidence and the arguments of the parties, the Court makes the following Findings of Fact and Conclusions of ...
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ORDER DENYING AMENDED MOTIONS TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT This proceeding came before the Court upon Amended Motions to Vacate and Set Aside Default and Default Judgment filed by Elizabeth Whitbeck and Dell & Schaefer, P.A., (collectively the “Whitbeck Defendants”) and Plaintiffs Responses in Opposition to Amended Motions to Vacate and Set Aside Default and Default Judg...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon Debtors’ Objection to Claim 3 of National City Mortgage Co. The Court conducted a hearing on the matter on July 12, 2006. In lieu of oral argument, the Court directed the parties to submit memoranda in support of their respective positions. The Court makes the following Findings of Fact and Conclusions of Law...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Under consideration by the Court is a motion, filed on January 31, 2006, by the United States Trustee (“UST”), seeking conversion of the chapter 11 cases of State Street Associates, L.P. (“SSA”) and State Street Houses, Inc. (“SSH”) (collectively the “Debtors”) pursuant to § 1112(b) of the United States Bankruptcy Code, 1...
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ORDER RESOLVING OBJECTIONS TO CONFIRMATION These matters come before the Court upon objections to plan confirmation filed by Rent Way, Inc. (“Rent Way”) and MWT Leasing, Inc. d/b/a Colortyme (“Co-lortyme”) (collectively referred to as “Creditors”). Creditors respectively filed objections to the chapter 13 plans of Georgia Parker (“Parker”) and Pamela Theresa Young (“Young”) (collectiv...
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ORDER DENYING MOTION FOR REHEARING AND/OR RECONSIDERATION FILED BY MANKUS PROPERTIES, INC. This case came before the Court upon Motion for Rehearing and/or Reconsideration (the “Motion for Rehearing”) filed by Mankus Properties, Inc. (“Mankus”). The Court conducted a hearing on the matter on July 12, 2006. The following facts are undisputed. Debtor filed a Chapter 13 b...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court on the Complaint filed by Plaintiff, Judy Ann Keeter (“Plaintiff’) seeking to determine the dischargeability of debt owed to her by Debtor, Joe B. Naranjo (“Debtor”), pursuant to 11 U.S.C. § 523(a)(6), and denial of Debtor’s discharge pursuant to 11 U.S.C. § 727. The trial of this adversary proceeding was held on June ...
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ORDER This matter came before the Court on the Application by General Electric Capital Corporation for an Order Allowing Administrative Expense Claim, Setting Priority of Such Claim and Directing Prompt Payment of Such Expenses in the Amount of $858,303.28 (Doc. No. 215) (“Application”) filed by General Electric Capital Corporation (“GE”) and the Motion by Debtor to Strike Application for Admin...
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*838 MEMORANDUM OPINION Jan and Caryn Wanechek (Debtors) operated a mink farm. They filed a Chapter 12 case and confirmed a liquidating plan. Pursuant to this plan the Debtors’ property was sold. American Legend Cooperative (ALC) is an oversecured creditor of the Debtors which seeks an allowance of its attorneys fees and costs pursuant to 11 U.S.C. § 506(b). The Debtors, the Chap...
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This is an appeal from a decision of the bankruptcy court which denied the debtor, Keith N. Griffin, Sr. (“Griffin”), a discharge in his Chapter 7 case under 11 U.S.C. § 727(a)(9). Griffin filed the Chapter 7 case within six years of the petition date of a Chapter 13 case in which he received a discharge. The bankruptcy court found, on a motion for summary judgment, that Griffin did not pay at le...
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MEMORANDUM OPINION These matters come before the Court on the motion of James J. Kelly, III (the “Debtor”) pursuant to 11 U.S.C. § 522(f) to avoid the judgment lien of Insty Prints of Joliet/David Kaminskas (the “Creditor”) and on the Creditor’s motion to dismiss the Debtor’s motion. For the reasons set forth herein, the Court denies the Creditor’s motion to dismiss and den...
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OPINION This case turns upon what constitutes “exigent circumstances” permitting a debt- or to file for bankruptcy relief before obtaining credit counseling. I determine that such circumstances generally exist where the debtor faces serious and immediate creditor action before the debtor can obtain credit counseling. The wage garnishment faced by Debtors in this case qualifies under t...
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OPINION 1 Presently before this Court is the dispo *57 sition of two motions to dismiss 2 Peter Kovalchick’s adversary action against Judge Cyrus P. Dolbin, R/S Financial Corp., Robert J. Rosenstein, Miriam Smalls, Richard A. Sprague, and the law firm of Sprague and Sprague. BACKGROUND Kovalchiek filed the instant adversary entitled ...
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*124 MEMORANDUM OF OPINION DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Before the Court is a motion filed by plaintiff Bruce Supply Corp. (“Bruce Supply”) for partial summary judgment on its adversary complaint against the Debtor, seeking a determination that its debt is not dischargeable pursuant to Bankruptcy Code § 523(a)(4). 1 For the reasons set forth ...
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OPINION 2 On August 21, 2006 (“Petition Date”) Omega Polymer Technologies, Inc. (“OPTI”), Omega Pultrusions, Inc. (“Omega”), Carsonite International Corp. (“Car-sonite”) and VPI Liquidation Corp. f/k/a Viking Plastics, Inc. (“Viking”) filed voluntary Petitions under Chapter 11 of the Bankruptcy Code. By Order dated August 24, 2006, the Court granted the Debtors Motion for Joint Administration ...
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ORDER ON MOTION OF TCF NATIONAL BANK TO CHANGE VENUE TCF National Bank (“TCF”) filed its Motion of TCF National Bank to Change Venue on August 4, 2006, together with a memorandum of law in support of that motion. On August 22, 2006, Eagle Pointe Limited Dividend Housing Association Limited Partnership (“Eagle Pointe”) filed its Debtor’s Objection to Motion to Transfer Venue. An evidentiary he...
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MEMORANDUM OF DECISION I. Introduction The matter before me is the objection by Edward G. Rubinski (“Debtor”) to claim number 4 (“Claim 4”) of the Massachusetts Department of Revenue Child Support Enforcement Division *321 (“MDOR/CSE”). 1 The Objection essentially challenges the amount of Claim 4, with a twist: the Debtor also alleges that confirmation of the Debtor’s Chapter 13 plan is...
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OPINION Plaintiff sues to avoid preferential payments made within 90 days prior to the filing of bankruptcy on December 28, 2000. The Defendant maintains that all payments were made in the ordinary course and, therefore, not avoidable under 11 U.S.C. § 547(c)(2). Plaintiff responds that a reduction in payment terms from 60 days to 30 days just prior to the preference period prevents t...
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INTRODUCTION Miguel A. Orsini Santos (the “Debtor”) appeals from an order of the United States Bankruptcy Court for the District of Puerto Rico (the “bankruptcy court”) denying *764his second motion for reconsideration of an order allowing the unsecured claim of Reinoldo Espino Colon (“Espino”). Espino was not listed as a creditor in the Debtor’s chapter 13 case. After the bar date for filing c...
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MEMORANDUM OPINION The court heard “Debtors [sic] Claim Objection/Motion to Determine Value and Interest Rate on Secured Claim” (Docket No. 11) filed by Glenn and Tina Tirey (“Debtors”), CIT Group/Sales Financing, Inc’s (“CIT”) Objection, Amended Objection, and Supplemental Objection To Debtors’ Proposed Plan of Reorganization (Docket Nos. 10, 32 and 33) and the Joint Motion to Consol...
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ORDER AND MEMORANDUM OF LAW ON DEBTOR’S MOTION TO RECONSIDER THIS MATTER came before the Court for hearing on September 8, 2006, upon amended motion filed by the Debtor to Amend Dismissal Order and Other Relief. Case # 06-13593, C.P. 16. The Court, having reviewed the Motion, and having considered the arguments of counsel, and being otherwise duly advised, grants, in part, the motion for ...
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MEMORANDUM OPINION Arthur W. Howard, Plaintiff, filed on June 28, 2006, a motion for summary judgement. The Citizens Bank of Cochran, Defendant, (the “Bank”) filed on June 30, 2006, a motion for summary judgment. Herbert Davis, Defendant, (“Mr. Davis”) filed on July 18, 2006, a motion for sum*253mary judgment.1 The Court, having considered the record and the arguments of counsel, now publishes ...
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OPINION REGARDING MOTION BY FRANK DAVID SEINFELD FOR PERMISSION TO PROSECUTE STOCKHOLDER’S DERIVATIVE ACTION IN DISTRICT COURT AND THE SECOND CIRCUIT COURT OF APPEALS Before the Court is the Motion by Frank David Seinfeld (“Seinfeld”) for Per *132 mission to Prosecute Stockholder’s Derivative Action in District Court and the Second Circuit Court of Appeals (the “Motion”). The...
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*169 OPINION 1 Before the Court are cross-motions for summary judgment in the above-captioned adversary proceeding. For the reasons set forth more fully below, the Court will grant the Plaintiffs’ motion and deny the Defendant’s motion. I. BACKGROUND Plaintiff, Shaw Environmental, Inc., is a wholly owned subsidiary of Plaintiff, The Shaw Group, In...
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REASONS FOR DECISION This matter came before the Court on May 23, 2006, and on June 27, 2006, on the Objection to the Proof of Claim of Hibernia National Bank 1 (“HNB”) filed by debt- or, Levy M. Guidry (“Debtor”). Hibernia National Bank filed a response, asking that Debtor’s Objection be denied. I. Facts Debtor filed a voluntary petition under Chapter 13 of the U.S. Bankruptcy Code on ...
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MEMORANDUM OPINION OF DECISION FINDING DEBTOR ELIGIBLE TO FILE BANKRUPTCY PETITION UNDER SECTION 109(h)(1) AND ORDER This matter is before the court on the Motion to Modify Stay to Nunc Pro Tunc Re Foreclosure of Deed of Trust on 413 Hammond Street or Alternatively to Declare the Stay Inapplicable filed by First Shore Federal Savings and Loan Association (“First Shore Federal”). The prope...
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This is an appeal of the bankruptcy court’s determination that the student loan debt owed to Defendant Student Loan Guarantee Foundation of Arkansas is dis-chargeable under 11 U.S.C. § 523(a)(8). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 158(b). For the reasons set forth below, we affirm the decision of the bankruptcy court.1 I. STANDARD OF REVIEW We review findings of fact for...
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BENCH DECISION 1 On OPEN DISCLOSURE STATEMENT ISSUES AND ON PROPRIETY OF SUPPLEMENTAL SOLICITATION MATERIAL On Tuesday, I took under submission issues of two types, all matters of first impression, or largely so. Though they involve different considerations in material part, they both involve the upcoming debate between plan proponents and plan opponents as to the desirability of the plan, an...
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OPINION AND ORDER *57 Almost all 1 Chapter 13 debtors in this Court are here trying to preserve something; their home, their car, their dignity, for themselves or for their loved ones. BAPCPA statutorily introduced the notion of Chapter 13 debtors who have been more “frugal” than other Chapter 13 debtors of comparable income. They are the “above median income”...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Under consideration by the Court is the objection filed by Mark W. Swimelar, chapter 13 trustee (“Trustee”) on March 30, 2006, with- respect to the Chapter 13 Plan filed by Elizabeth and Lawrence Rotunda (the “Debtors”) on January 20, 2006. The basis for the Trustee’s objection is his assertion that the Plan fails to prov...
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AMENDED 1 MEMORANDUM OPINION AND ORDER THESE MATTERS came before the Court on June 1, 2006, for a telephonic hearing regarding: (1) the parties’ Motion for Approval of Stipulation of Nondischargeability and Payment Plan, filed on March 14, 2006 (Docket # 5) (“Panem Motion for Approval of Stipulation”), in MBNA America Bank, N.A. v. Panem, Adversary Proceeding No...
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BENCH DECISION 1 ON MOTION TO TERMINATE EXCLUSIVITY; TO RESUME LITIGATION OF IN-TERDEBTOR ISSUES; AND TO UNSEAL PROTECTED MATTER A group of bondholders (“ACC Bondholder Group”) of Adelphia Communications Corporation (“ACC Parent”), the highest entity in Adelphia’s capital structure, moves to terminate the Debtors’ plan exclusivity. The ACC Bondholder Group also moves for a dete...
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MEMORANDUM DECISION RE: DEFENDANTS’ MOTIONS FOR PARTIAL JUDGMENT ON THE PLEADINGS Metropolitan Mortgage & Securities Co., Inc., is a Chapter 11 debtor and has brought these consolidated adversary proceedings against two stockholders seeking to recover stock dividends distributed to the defendants. The defendants filed motions to dismiss certain causes of action in the Complaints pursuant to B.R. ...
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Opinion 7-Hills Radiology, LLC, the debtor and debtor in possession in this case, filed a chapter 11 petition on August 2, 2006. The petition was what is commonly referred to as “bare-bones”; it listed the debtor’s creditors, but did not provide any schedules of assets or liabilities, or a statement of financial affairs. The face page of the petition indicated that debtor was a health care busi...
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MEMORANDUM OPINION The Court considers the Second Motion to Compromise Claim of Estate against JNS Aviation, Inc., JNS Aviation, LLC, JNS Aircraft Sales, LLC, J. Malcom Shelton IV, and James N. Shelton submitted by the chapter 7 trustee, Kent Ries (the “Trustee”), which proposes to settle claims asserted in this adversary proceeding. Nick Corp., the plaintiff in this adversary proceed...
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MEMORANDUM OPINION BACKGROUND Defendant was an officer and director of CD Micro, Inc., which filed bankruptcy under chapter 7 on November, 24, 2003. Mr. Webb also filed a personal bankruptcy under chapter 7 on the same date. The trustee of the bankruptcy estate of CD Micro filed this adversary proceeding against the Defendant, seeking a judgment declaring that certain debts allegedly owed t...
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MEMORANDUM OPINION This matter came on before the court for confirmation of the Debtor’s Chapter 13 plan. The case is filed under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). The Chapter 13 Trustee has objected to confirmation. The court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(b). This is a core proceeding...
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MEMORANDUM OPINION This matter comes before the Court on the amended complaint filed by Yvonne Torrez, Administrator of the Estate of George Smith (the “Plaintiff’), which seeks to except a debt allegedly owed by Thomas A. Marcet (the “Debtor”) from discharge pursuant to 11 U.S.C. § 523(a)(4). For the reasons set forth herein, the Court grants judgment in favor of the Debtor and. find...
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AMENDED MEMORANDUM OPINION AND ORDER This matter is before the Court on the Complaint of Wellington Apartment, LLC (“Wellington,” “Plaintiff’ or “Debtor”) against Charles H. Clotworthy, III (“Clot-worthy”), Richard Merel (“Merel”), Steven Byers (“Byers”), Garfield & Merel, Ltd. (“G & M”), WP New Orleans, L.L.C. (“WP New Orleans”), and WPN, L.L.C. (“WPN”), 1 (collecti...
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MEMORANDUM DECISION I. Preliminary Statement The United States District Court for District of Arizona remanded certain issues in this adversary for resolution by this Court. 1 This Court did conduct a trial *211 on the remanded issues on May 9, 2005. However, at the conclusion of the trial, this Court filed a memorandum decision dated August 15, 2005, noti...
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ORDER GRANTING MOTION TO EXTEND TIME TO FILE COMPLAINTS OBJECTING TO DISCHARGE This case came before the Court on Motion to Extend Time to File Complaints Objecting to Discharge (“Motion”) filed by S.D. Khan, M.D. (“Creditor Khan”), S.F. Meerza, M.D. and J.K. Raman, M.D. (collectively, “Creditors”). The bar date for filing such a complaint was February 10, 2006. The Motion was filed on February ...
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MEMORANDUM ON OBJECTION TO POST-PETITION CLAIM FILED BY COUNTRYWIDE HOME LOANS This contested matter is before the court on the Objection of Debtor Dallas Terry Cleveland to Post-Petition Claim Filed by Countrywide Home Loans (Objection to Claim) filed by the Debtor on May 16, 2006, objecting to the “Post-Petition Proof of Claim” filed by Countrywide Home Loans (Countrywide) in the am...
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OPINION This case came before the Court for trial on an adversary complaint filed by Shannon Harden Spaid against the Debtor, Jason L. Harden, her former husband. The adversary Complaint seeks to have certain obligations owed by Mr. Harden to Mrs. Spaid declared nondischargeable. Mrs. Spaid and Mr. Harden were married in 1997. During the course of the marriage, one son was born to th...
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ORDER REGARDING EXEMPTIONS On the 26th day of June, 2006, there came on for hearing Objections to Debtor’s Claim of Exemptions and Amended Claim of Exemptions filed by Creditors Todd and Misty Bowles’ (“the Bowles”). The Bowles appeared personally and were represented by Clifton Naifeh and D. Craig Shew. The Debtor was present and was represented by D. Neal Martin. Gerald Miller, Chapter 7 Tr...
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MEMORANDUM OPINION The court has held a trial on the instant adversary proceeding. The court previously narrowed the issues pursuant to a pretrial order (Docket No. 161) entered May 4, 2006, to claims for exception to discharge pursuant to Sections 523(a)(2) and 523(a)(4) of the Bankruptcy Code, and for denial of discharge pursuant to Sections 727(a)(3) and 727(a)(4) of the Bankruptcy Code. A...
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MEMORANDUM OPINION GRANTING MOTIONS OF CHEVRON U.S.A. INC. FOR RELIEF FROM THE AUTOMATIC STAY CAME ON FOR CONSIDERATION by this court, on May 22 and 30, 2006, the Motions of Chevron U.S.A. Inc. for Relief from the Automatic Stay Pursuant to 11 U.S.C. § 362(d)(1) and (d)(2) and Motions to Convert Cases to Chapter 7 by Chevron U.S.A. Inc. filed in each of the two above-referenced cases....
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MEMORANDUM OPINION I. INTRODUCTION This Memorandum Opinion addresses the issue of whether Dr. William Griggs, Ph. D. (Griggs) deceived Tony L. Webber (the Debtor) into entering a Stock Purchase Agreement. The Debtor claims that Griggs, now deceased, and his wife, Joan Griggs (Mrs. Griggs), deceived him into entering the Stock Purchase Agreement, that the Stock Purchase Agreement is t...
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MEMORANDUM OF DECISION Plaintiff Catherine Albaugh asks the Court to determine that the debts owed to her by chapter 7 debtor Scott Barnard arising out of the parties’ Divorce Decree and Marital Settlement Agreement be excepted from Defendant’s chapter 7 discharge. The Court conducted a trial in this adversary proceeding on August 24, 2006, at which the parties appeared and presented evidence a...
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REASONS FOR ORDER FINDING DEBT NONDISCHARGEABLE AND AWARDING ATTORNEY’S FEES AND COSTS Plaintiff, George Rodrigue, filed this adversary against Debtor, Bonnie Brown Humphrey (“Defendant”), to determine the dischargeability of a debt, specifically, a work of art created by the Plaintiff and impermissibly held by the Defendant. The Plaintiff recovered the property in question after filing the Compl...
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REASONS FOR ORDER PARTIALLY GRANTING REQUEST FOR ORDER PURSUANT TO 11 U.S.C. § 326(c)(4)(A)(ii) Debtors, Katrice Haisley and Glen Hais-ley, (“Debtors”) filed the above captioned bankruptcy on December 14, 2005, and are subject to the new provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). One of the effects of BAPCPA was to place greater restricti...
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MEMORANDUM OPINION LTSGO, L.L.C. (“LTSGO”) sued debtor Peter W. Bassil for a declaration under 11 U.S.C. § 523(a)(2)(A) that Bassil’s debt to it is nondischargeable. The Court concludes in this memorandum opinion that Bassil’s debt to LTSGO is dischargeable. Facts This dispute grew out of debtor Peter Bassil’s plan to enter the video poker truck stop business in 1999. He became interested in a tr...
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ORDER ON REMAND, RE: DEBTOR’S RENEWED MOTION FOR AUTHORITY TO REJECT COLLECTIVE BARGAINING AGREEMENTS This Chapter 11 case is before the Court, in chambers, on remand from the *106 United States District Court pursuant to the Memorandum of Law and Order entered on September 13, 2006, by Judge Michael J. Davis of that court. The matter at bar is the Debtor’s second motion under 11 U.S.C. § 111...
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MEMORANDUM OPINION This matter comes before the Court on the motion filed by defendants Raul Abejuela and Imelda Abejuela (“Debtors”) to dismiss the third amended complaint filed by Blackstone Enterprises, Inc. (“Blackstone”) on February 13, 2006. The motion will be granted in part and denied in part. Background This adversary proceeding was commenced by the filing of a complain...
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MEMORANDUM OPINION The matter currently before the Court involves the Motion to Alter or Amend Judgment Pursuant to Bankruptcy Rules 8002(b) and 7052 filed by the Debtor/Plaintiff, John A. Kartman (“Kartman”). The Motion requests this Court to “alter or amend” its oral findings of fact and conclusions of law set forth on the record following the trial on the Debtor’s ...
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MEMORANDUM OF DECISION ON MOTION OF DAVID M. NICK-LESS FOR SUMMARY JUDGMENT, MOTION OF AMALIA KESSLER FOR SUMMARY JUDGMENT, AND JOINT MOTION OF DAVID M. NICKLESS, TRUSTEE, AND TATYANA BERMAN, DEBTOR, FOR AWARD OF COMPENSATORY DAMAGES AND PUNITIVE SANCTIONS FOR WILLFUL VIOLATION OF THE AUTOMATIC STAY AND FOR ORDER DECLARING VOID AB INITIO AN ORDER OF THE CALIFORNIA SUPERIOR COURT ISSUED EX PARTE...
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MEMORANDUM OPINION This cause is before the Court on the Objection to Claim of Capital One Auto Finance Claim # 3 filed on behalf of Donald Marvin Vagi, Sr. (“Mr.Vagi”) and Jennifer Lynn Vagi (“Mrs.Vagi”) (collectively “Debtors”) on May 9, 2006. A Response was filed on behalf of Capital One Auto Finance (“Creditor”) on June 19, 2006. On July 20, 2006, the Court conducted an evidentiary hearin...
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MEMORANDUM OF OPINION AND ORDER The matter before the Court is the motion of the Chapter 7 Trustee, (“Trustee”) for an order requiring Qiana M. Parker (“Debtor”) to turnover certain non-exempt assets (the “Motion”). The Trustee also objects to the Debtor’s claimed exemption in certain tax refunds which include an Earned Income Tax Credit (EITC) and Child Tax Credit (CTC). The Debtor opposes t...
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MEMORANDUM OPINION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter came before the Court on the Motion for Summary Judgment (Doc. 14), filed March 22, 2006 by Defendant Wells Fargo Financial Acceptance, Inc. *889 (“Wells Fargo”), the Objection thereto (Doc. 17), filed April 10, 2006 by Chapter 7 Trustee Susan Rhiel, and Defendant Wells Fargo’s Response to Trustee’s Objection (Doc. 18...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION OF PURE FISHING TO CONVERT TO CHAPTER 7 INTRODUCTION This case was filed voluntarily under Chapter 13 of the Bankruptcy Code by Leo Stoller (“Debtor” or “Stoller”). A creditor Pure Fishing, Inc. (“Pure Fishing” or “Movant”) moved to convert this case to one under Chapter 7. This became a contested proceeding under Rule 9014 Fe...
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ORDER IMPOSING SANCTIONS ON GORDON L. GOOCH d/b/a AMER-ICANBANKRUPTCY.COM This matter came on for hearing, sua sponte, on a letter from the Debtor, Melanie Rise Hennerman, (docket # 19), filed with the Court on June 23, 2006. The June 23, 2006 letter, (the “Letter”), alleged that the Debtor had not received all the documents for which she had contracted with an internet based b...
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DECISION AND ORDER ON APPLICATION TO REOPEN ADVERSARY PROCEEDING AND ENFORCE SETTLEMENT The matter is before the Court on the application of Peter Logothetis (“P.Lo-gothetis”) for an Order reopening the above adversary proceeding and thereafter enforcing a stipulation of settlement. Specifically, P. Logothetis seeks an Order directing Robert J. Musso (“Musso”), the Chapter 7 trustee (the “trustee”...
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351 B.R. 747 (2006) In re Michael Evan POOL and Juanda Marie Pool, Debtors. No. 306-30965-tmb13. United States Bankruptcy Court, D. Oregon. September 27, 2006. *748 Michael D. O'Brien, Clackamas, OR, for Debtors. MEMORANDUM OPINION TRISH M. BROWN, Bankruptcy Judge. This matter came before the court on September 7, 2006, for a hearing on confirmation of the Debtors' proposed 2nd Amended Chapter 1...
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MEMORANDUM OF DECISION RE MOTION TO AMEND COMPLAINT The Official Unsecured Creditors’ Committee (the “Committee”) for the above-captioned debtor (the “Debtor”) moves to amend its complaint in the above-captioned adversary proceeding (the “Complaint”) to add and delete certain claims as well as to change the wording slightly of some of the existing claims. Defendants Electrochem Funding, LLC (“Fun...
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MEMORANDUM DECISION I. Preliminary Statement The Court bifurcated the trial in this adversary proceeding after reviewing the statutory and case law, determining that Nevada law applied to the controversy between the parties, and concluding that Nevada law required a separate hearing to assess the amount of punitive damages once liability had been determined. The parties are referred to this Cou...
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MEMORANDUM OF OPINION Before the Court is the defendant’s motion to dismiss (Docket # 7). The defendant urges dismissal of this adversary proceeding because the plaintiffs complaint does not present a justiciable ease or controversy. Because the Court declines to exercise jurisdiction for prudential reasons, the defendant’s motion to dismiss is granted. JURISDICTION In the present case, the debto...
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DECISION & ORDER The present dispute involves the meaning of delivery for purposes of effecting a transfer by deed of an interest in real property under New York law. Until January of 2002, Charlotte Cardi-nale held title, in fee simple absolute, to her homestead at 59 Norman Drive in Depew, New York. In that month, she executed a deed by which she reserved a life estate to herse...
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DECISION AND ORDER UPON VALUATION HEARING On or about June 26, 2002 (the “petition date”), Benjamin Hirseh (“Hirseh”) filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. On October 24, 2002, the United States Internal Revenue Service (the “IRS”) filed a proof of claim in this bankruptcy case asserting a secured claim of $912,942.82 (the “IRS Proof of Claim”). On...
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DECISION AND ORDER On June 15, 2005, Laura Kelly (the “plaintiff’) commenced this adversary proceeding against Educational Credit Management Corporation (“ECMC”) and Sallie Mae Servicing (“Sallie Mae”)(collectively known as the “defendants”), the holders of student loans made to the plaintiff pre-petition, requesting this Court to discharge these loans pursuant to Section 523(a)(8) of the Bankru...
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DECISION ON DEFENDANT’S MOTION TO ABSTAIN AND MOTION TO DISMISS Before the court is defendant’s motion to abstain or in the alternative to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and Rule 7012 of the Federal Rules of Bankruptcy Procedure. For the reasons stated, the defendant’s motion to abstain is denied. The defendant’s moti...
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MEMORANDUM OPINION 1 Before the court is a motion by the Official Committee of Unsecured Creditors (“Turnover Motion”) 2 seeking entry of an order pursuant to §§ 503, 541, 542, and 105 of the Bankruptcy Code directing that Transaction Bonuses 3 provided by a secured creditor be turned over to Debt- or’s estate or, in the alternative, disallowing or prohibiting payment of the bonuses pursu...
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MEMORANDUM OPINION Before the court for ruling is the motion of defendant CIT Group pursuant to Rule 12(c), Fed.R.Civ.P. 12(c) (made applicable by Fed. R. Bankr.P. 7012(b)), for judgment on the pleadings on the adversary complaint of debtor Mark J. Hodges. In his complaint, Hodges seeks to rescind his mortgage with CIT based on federal and state statutory violations he claims occurred...
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Stephen E. Shamban, Chapter 7 Trustee (the “Trustee”), appeals from the bankruptcy court’s February 24, 2006, order overruling his objection to the Debtor’s claim of homestead exemption in real property under Mass. Gen. Laws ch. 188, § 1. The issue on appeal is whether a declaration of homestead which is recorded simultaneously with the filing of a voluntary bankruptcy petition is valid under Mas...
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MEMORANDUM OPINION Phillip L. West and Tina M. West, Mov-ants, filed on May 24, 2006, a Motion To Convert. Mutual Savings Credit Union, Respondent, filed an objection on May 25, 2006. Movants’ motion was discussed at a hearing on an adversary proceeding on May 25, 2006. 1 Movant and Respondents have filed briefs on the issues presented in the motion. The Court, having consi...
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MEMORANDUM OF DECISION OVERRULING CHAPTER 13 TRUSTEE’S OBJECTION TO CONFIRMATION OF PLAN The Trustee filed his objection to confirmation of the Debtor’s Chapter 13 plan (“plan”). The sole basis for the objection was the Trustee’s legal argument that the plan could not, after amendments under BAPCPA * and under pre-BAPCPA authority, appoint the Debtor as disbursing agent under t...
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MEMORANDUM DECISION Plaintiff, Richard K. Diamond, Chapter 7 Trustee (“Diamond”) seeks to avoid certain alleged preferential transfers totaling $17,289.89 pursuant to 11 U.S.C. § 547(b). Defendant, The Gemmel Pharmacy Group, Inc., et. al., (“Gemmel”) assert affirmative defenses to Diamond’s preference claim under 11 U.S.C. §§ 547(c)(2) and (4). The court conducted a trial in th...
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MEMORANDUM OPINION DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION I PROCEDURAL BACKGROUND. On October 21, 2005, Matthew-Joseph Crehan (the “Plaintiff’) filed the above-captioned adversary proceeding against Ying Ly (the “Debtor Defendant”). The complaint alleged that a debt owed to the Plaintiff by the Debtor Defendant, which arose out of two real estate listing agreement...
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Memorandum Decision on Debtors’ Objection to Claim Number 3 of Litton Loan Servicing 1 Is it too much to ask a consumer mortgage lender to provide the debtor with a *845 clear and unambiguous explanation of the debtor’s default prior to foreclosing on the debtor’s house? This unfortunate chain of events began in March 2001 when Dennis and Pamela Thompson (the “Debtors...
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ORDER This case is before the court on the debtor’s motion for contempt. On August 16, 2006, the court conducted a hearing on this matter in Wilmington, North Carolina. On April 10, 2004, the debtor purchased a 2001 Dodge Grand Caravan pursuant to the terms of an installment sales contract (“the contract”). Coastal Federal Credit Union (“Coastal”) was assigned the contract. Coastal holds a fi...
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MEMORANDUM OPINION This case is before the court on the trustee’s motion to sell real property owned by the debtor and Carlos Chevez free and clear of liens under § 363(f) of the Bankruptcy Code. For the reasons stated below, the motion will be denied. Background Walter R. DeCelis filed a petition in bankruptcy under chapter 7 of the Bankruptcy Code on July 18, 2005. He ...
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MEMORANDUM DECISION ON OBJECTION TO CONFIRMATION The issue involved in GMAC’s objection to confirmation of the debtors’ plan is narrow, and the following facts are undisputed. On April 10, 2006, John D. Brill and Kimberly M. Quass-Brill filed a voluntary petition for relief under chapter 13. The debtors’ plan proposed to pay $650.00 biweekly to the trustee for a period of sixty months. Within 9...
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REASONS FOR APPOINTING A CHAPTER 11 TRUSTEE This matter came before this Court on Wednesday, September 6, 2006 and Monday, September 18, 2006, as a hearing on the Warren L. Reuther, Jr.’s Motion to Appoint Chapter 11 Trustee or Examiner (P-114) and the City of New Orleans’ Motion to Appoint Chapter 11 Trustee or Examiner (P-127). Present: Kirk Reasonover Randall Smith ...
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ORDER This matter comes before the Court on Expeditors International of Washington, Inc.’s [“Expeditors”] Motion for Partial Summary Judgment on Expeditors’ Counterclaim filed on August 29, 2005. The matter was fully briefed on November 11, 2005. Based upon the pleadings and evidence presented, the Court makes the following Findings of Fact: 1. On October 16, 2000 [the “Petition Date”], the Debtor...
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The present dispute involves the meaning of “circumstances beyond the control of the debtor,” for purposes of excusing a failure to submit tax returns to a trustee within the time limits established by 11 U.S.C. § 521(e)(2). The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 has redefined the duties of a debtor under 11 U.S.C. § 521. For cases filed after October 17, 2005, para...
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DECISION AND ORDER DENYING PLAINTIFFS’ COMPLAINT TO HAVE THEIR CLAIM DETERMINED NONDISCHARGEABLE Heard on the Complaint of Barry and Monique Doherty seeking a determination that their claim against the Debtor, James Coccia, is nondischargeable under 11 U.S.C. § 523(a)(6). The Doherties complain that Coccia or his agents willfully and maliciously damaged their motor vehicle while towin...
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ORDER ON TRUSTEE’S MOTION FOR ISSUANCE OF AN ORDER DIRECTED TO DAVID MAHLER, AN ATTORNEY LICENSED IN NEW JERSEY, TO SHOW CAUSE WHY HE SHOULD NOT DISGORGE MONEY RECEIVED POST-PETITION FROM THE DEBTOR (Doc. No. 147) THE MATTER under consideration in this case of Valerie Austin (“Debtor”), originally filed under Chapter 13 on July 13, 2005, but converted to a Chapter 7 liquidation case on April ...
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MEMORANDUM OPINION ON FINAL FEE APPLICATION OF HUGHES & LUCE, LLP This opinion addresses the question of whether professionals for an equity securi *798 ty holders’ committee, hired pursuant to 11 U.S.C. § 327, must show an “identifiable, tangible, and material benefit” to the bankruptcy estate, in order to be compensated under 11 U.S.C. § 330(a), regardless of the reason...
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ORDER I. Background The trustee proposes a settlement of a lawsuit filed pre-petition by the debtor. The debtor opposes that settlement. The specific matters before the Court are the trustee’s Motion to Approve Compromise of Controversy, the debtor’s objection to that motion, the Application for Final Compensation and Reimbursement of Expenses for Special Counsel, ...
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AMENDED ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE PLAINTIFF’S FIRST AMENDED COMPLAINT 1 This matter came before this Court on Defendant’s Motion for Summary Judgment on the Plaintiffs First Amended Complaint (CP # 97). For the reason’s set forth below, the Motion is DENIED. Factual Background 2 Debtor, Robert Daniels (the “Debtor”) owns a home located at 15700 N.W...
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MEMORANDUM Cornelius F. Covington (“the debtor”) is one of the joint debtors in this chapter 7 case. His petition was filed after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) became effective. The Madera County Child Support Department has filed a proof of claim on behalf of the debtor’s daughter. The proof of claim demands $38,211.59 for past due chil...
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MEMORANDUM OPINION The chapter 7 trustee, D. Michael Case (“Case”), seeks a declaration that debtor Phillip Hilgers’s (“Phillip” or “debtor”) one-fourth remainder interest in the residue of three revocable inter vivos trusts is an asset of the bankruptcy estate and subject to turnover. Turnbull Oil, Inc. (“Turn-bull”) also claims an interest in Phillip’s remainder interest as a pre-petition g...
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ORDER ON AMENDED MOTION FOR ENTRY OF DEFAULT JUDGMENT AND OTHER SANCTIONS AGAINST THE SOLOMON TROPP LAW GROUP, P.A. AND FOR THE AWARD OF REASONABLE ATTORNEYS’ FEES FOR THE FAILURE TO COMPLY WITH A DISCOVERY ORDER AGAINST THE SOLOMON TROPP LAW\\ GROUP, P.A.; F. LORRAINE JAHN, ESQ.;. MARSHALL,' DENNEBEY, WARNER, COLEMAN & GOGGIN; AND MICHAEL J. MCGIRNEY? ESQ. (Doc. No. 399) ...
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DECISION AND ORDER DENYING MOTION FOR ORDER CONFIRMING TERMINATION OF THE AUTOMATIC STAY Heard on GRP Loan LLC’s request for an order confirming that the automatic stay is terminated under 11 U.S.C. § 362(c)(3)(A) with respect to its collateral, the Debtors’ home in Cranston, Rhode Island. This is the Debtors’ second bankruptcy filing within the preceding year. Their first Chapter 13 was fi...
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MEMORANDUM OPINION I. INTRODUCTION The New Hampshire Supreme Court Professional Conduct Committee (the “Committee”) filed a complaint pursuant to 11 U.S.C. § 523(a)(7) seeking to except *8 from the Debtor’s discharge his obligations to the Committee arising out of two attorney disciplinary proceedings commenced by the Committee against the Debtor. The parties agreed ...
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MEMORANDUM OPINION On August 1, 2006, the Court conducted a trial on the Involuntary Petition (Doc. 1) filed by Virginia D. Marks, individually, and as Trustee of the Virginia D. Marks Trust (collectively, “Mrs.Marks”), Tulsa National Bank, N.A. (the “Bank”), and Paul R. Hodgson (“Mr.Hodgson”) (collectively, the “Petitioning Creditors”) on April 21, 2006 (the “Petition Date”), and the...
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DECISION ON OBJECTION TO DISCLOSURE STATEMENT I. Introduction The matter before the Court is the Disclosure Statement (“Disclosure Statement”) of the debtor Dana Louis Kiklis (“Debtor”). LEM Realty Co., Inc. (“LEM”) filed an objection on the grounds that the Disclosure Statement fails to adequately describe and address LEM’s un-dersecured claim. For the reasons set forth below, I will enter...
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OPINION Presently before the Bankruptcy Appellate Panel (“BAP”) is the Appellees’ motion for an order dismissing this appeal of the bankruptcy court’s plan confirmation orders because of equitable mootness. For the reasons discussed below, the motion is GRANTED and this appeal is hereby DISMISSED. I.ISSUE The issue before the Panel is whether the Panel can grant effective relief...
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MEMORANDUM OF DECISION This adversary proceeding is before the court for entry of judgment after trial. The adversary was brought by HSBC Bank USA (“HSBC”) to determine the nature, extent, and value of its interests in a lease held by United Air Lines, Inc. (“United”) at San Francisco Airport (“SFO”). HSBC is the indenture trustee for bondholders with a substantial claim against United. T...
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ORDER DENYING REHEARING The matter before the Court is the Motion for Rehearing (“Motion”), filed March 28, 2006, by the Appellants. The Trustee filed an objection to the Motion on March 31, 2006. Neither Federal Rule of Bankruptcy Procedure 8015 nor Rule 8015-1 of this Court’s Local Rules states the substantive requirements for motions for rehearing. However, when those Federal and ...
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DECISION ON ORDER TO SHOW CAUSE On February 23, 2006, the trustee in this Chapter 7 case filed a motion to sell real estate commonly known as 814 Charles Street, Huntington, Indiana, free and clear of liens, for the sum of $66,000. The motion stated that the trustee had a buyer for the property and believed that the proposed sale would be in the best interests of the estate. On the sa...
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ORDER ON MOTION BY GENERAL MOTORS ACCEPTANCE CORPORATION FOR RELIEF FROM CONFIRMATION ORDER AND FOR REHEARING ON ITS OBJECTION TO CHAPTER 13 PLAN (Doc. No. 34) THE MATTER under consideration in this Chapter 13 Case of Gary Grunau and Jacquelyn Grunau (Debtors) is a Motion by General Motors Acceptance Corporation (Creditor) for Relief from Confirmation Order and for Rehearing on its Objection ...
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Opinion I. Introduction Debtor Bonnie J. Caldwell (the “Debtor” or the “Plaintiff’) filed this Adversary Proceeding against Defendants Continental American Insurance Co. fik/a United States Life Insurance Co. (“U.S.Life”) and Disability Reinsurance Management Services, Inc. (“DRMS”) (collectively, the “Defendants”) alleging breach of contract, seeking monetary and equitable r...
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ORDER ON MOTION FOR SUMMARY JUDGMENT AND CROSS MOTION FOR SUMMARY JUDGMENT (Doc. Nos. 10 and 17) This is the Chapter 7 liquidation case of Richard Barton Kepley (Debtor) and the matter under consideration is an Adversary Proceeding commenced by Robert E. Tardiff (Trustee) against MBNA America Bank, NA (MBNA). The Complaint filed by the Trustee sets forth a single claim which is based on an ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came on for trial on the adversary complaint of the plaintiff, Rocin Liquidation Estate (the “Estate”), seeking avoidance of certain alleged preferential transfers and recovery of their monetary value. The transfers in question were payments made by the debtor Rocor International, Inc. (“Rocor” or “debtor”) to the defendant, Alta AH ...
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court on May 9, 2006, for hearing to consider if sanctions should be entered by this Court against Matthew Fairshter (“Mr.Fairsh-ter”) and Bennett & Fairshter, LLP (“B & F”) 1 for Mr. Fairshter’s and B & F’s conduct in this Chapter 11 proceeding, as set forth in the Court’s Minutes of Proceeding dated February ...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT RE: DEBTOR’S COMPLAINT FILED BY ADVANCED IMAGING CENTER OF NORTHERN ILLINOIS LIMITED PARTNERSHIP (Doc. No. 5) AND SPIRO GEROLIMATOS, M.D. (Doc. No. 6) and DEBTOR’S CROSS MOTION FOR SUMMARY JUDGMENT ON COMPLAINT (Doc. No. 9) THE MATTER under consideration in this Chapter 11 case of George Edward Cassidy, M.D. (the Debtor) is a challenge of the validity of a ...
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MEMORANDUM OF DECISION ON DEBTOR’S OBJECTIONS TO CLAIMS OF MORTGAGEES AND MORTGAGEE’S OBJECTION TO CONFIRMATION OF PLAN This case is before the Court on the objection of the Chapter 13 Debtor, James Long, Jr. (“the Debtor”), to the secured claims of two mortgagees and on the objection of the first-position mortgagee to confirmation of the Debtor’s Chapter 13 plan. For the reasons set forth be...
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*330 COMBINED ORDER ON ORDER ON ORDER TO SHOW CAUSE REGARDING ATTORNEY FEES (Gru-nau Doc. No. 18) (Remmel Doc. No. 17) THESE MATTERS came before this Court by virtue of an Order to Show Cause, entered by this Court on June 21, 2006 (Grunau, Doc. No. 18), directing Edward R. Miller, Esquire, (Mr. Miller) to appear before the undersigned to show cause, if he has any, to determine why his fees...
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MEMORANDUM OPINION AND ORDER Before the Court is the Trustee’s Motion to Compel and for Turnover and Brief in Support (the “Motion”). The Motion is opposed by defendants Gary M. Kornman, GMK Corp., GMK Family Holdings, L.L.C., Ettman Family Trust I and The Oak Group, L.P. (collectively, the “Kom-man Entities”) and, to a limited extent, by defendants Robert H. Kroney and Kro-ney-Mincey, In...
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ORDER OVERRULING TRUSTEE’S OBJECTION TO EXEMPTIONS This case presents an unusual fact pattern. Prior to the filing of their bankruptcy petition on October 14, 2005, the Debtors had been unable to purchase a home because of their poor credit history. A friend, Michael Rose, purchased a residence at 7320 N.W. 44th Court, Lauderhill, FL 33319 with the intent of transferring it to the Debtors. In...
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OPINION Introduction The Debtor has filed suit against Deutsche Bank National Trust Company (Deutsche), Advanta Corporation (Advan-ta), Chase Manhattan Mortgage Corporation (Chase) and New World Mortgage, Inc. (New World) under federal and state consumer lending law. Deutsche, Chase and New World have filed motions to dismiss the complaint. The Debtor opposes the motions. The mot...
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*258 Memorandum Opinion and Order By motion, Larry J. Batten and Brenda A. Batten (“Debtors”) seek to amend the schedules in their Chapter 7 case to reflect a tort claim that arose the same month Debtors received a discharge. Because the post confirmation, post conversion tort claim is not property of the estate and because it is not a property interest covered by Bankruptcy ...
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351 B.R. 786 (2006) In re Fernando DELFINO, Debtor. No. 98-29098-BKC-JKO. United States Bankruptcy Court, S.D. Florida, Fort Lauderdale Division. September 28, 2006. *787 Jose M. Francisco, Esq., Miami, FL, Laila S. Gonzalez, Esq., Hialeah, FL, for Debtor. ORDER DENYING DEBTOR'S MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO REOPEN FOR TEE PURPOSE OF AMENDING/ADDING CREDITOR, DENYING PENDI...
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ORDER ON DEFENDANT’S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR JUDGMENT ON THE PLEADINGS (Doc. No. 12) THE MATTER under consideration in this Chapter 7 liquidation case of Hershell Gene Steele (Debtor) is a Motion to Dismiss or, in the Alternative, for a Judgment on the Pleadings filed in the above-captioned adversary proceeding. The Motion filed by the Defendant Fred Eck (Defendant) conten...
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ORDER ON TRUSTEE’S OBJECTION TO CLAIM OF EXEMPTION (Doc. No. 17) THE MATTER under consideration in this Chapter 7 case is an Objection to the Debtor’s Claim of Exemption (Doc. No. 17), filed by Diane Jensen, the Trustee of the Chapter 7 estate. It is the Trustee’s contention that Bruce H. West (the “Debt- or”), is not entitled to claim the federal exemptions under Section 522(d) of the Bankru...
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ORDER ON DEFENDANT BOWEN’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT THE MATTER in controversy in this Chapter 13 case of Pauline M. Miller (the Debtor) is the validity vel non of a certain warranty deed executed by Thelma Bowen (Mrs. Bowen), the deceased wife of DeFort Bowen (Mr. Bowen), who is one of the Defendants named in this Adversary Proceeding filed by ...
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FINAL JUDGMENT THIS CAUSE came on for consideration upon the Court’s own Motion for the purpose of entering a Final Judgment in the above-captioned adversary proceeding. The Court has considered the record and finds that this Court has entered an Order on Motions for Summary Judgment. Therefore, it is appropriate to enter Final Judgment. Accordingly, it is ORDERED, ADJUDGED AND DECREED that...
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The Matters under consideration in this yet-to-be confirmed Chapter 11 case are claims of nondischargeability of debts admittedly owed to Advanced Imaging Center of Northern Illinois, LP (AIC) and Dr. Spiro Gerolimatos (Dr. Gerolimatos) by Dr. George Edward Cassidy (the Debtor). The claims of nondischargeability were asserted in Adversary Proceeding No. 06-00014 filed by AIC and Adversary Proce...
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MEMORANDUM OF DECISION SUPPLEMENTING ORAL BENCH RULING ON COMPLAINT TO DENY DISCHARGE I. BACKGROUND Hunter W. Smith (hereafter, the “Debt- or”) commenced the instant bankruptcy case by the filing of a voluntary petition under Chapter 7 of the United States Bankruptcy Code, upon which relief was ordered. Thereafter Ronald I. Chorches (hereafter, the “Trustee”) was appointed as trustee of the r...
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MEMORANDUM OPINION Dwayne Charles Thornton (the “Debt- or”) seeks to discharge government-guaranteed student loans owed to the U.S. Department of Education (the “Department”), on the grounds that repayment of the student loans would constitute an undue hardship on him and his dependent. For the reasons stated herein, the court finds that repayment of the student loans does not constitute an u...
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MEMORANDUM OPINION Louan Karen McNemar (the “Debtor”) seeks to discharge a government-guaranteed education loan owed to the Student Loan Servicing Center (“SLSC”) on the grounds that repayment of the education loan would constitute an undue hardship on her. For the reasons stated herein, the court finds that repayment of the education loan does not constitute an undue hardship and the loan is...
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OPINION After reopening a case that had been closed for three years, the chapter 7 2 trustee obtained an order for turnover of funds in debtor’s individual retirement account (“IRA”) which were derived from her former spouse’s pension. Six months later, debtor amended her schedules to exempt the IRA. After a contested hearing, the bankruptcy court sustained the trustee’s object...
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OPINION James M. Smith (“Debtor”) appeals a declaratory judgment entered on May 20, 2005, which determined that a state court judgment held by Sidney and Sandra La-chter (“Lachters”) was timely renewed. We REVERSE and REMAND. The long and winding road That leads to your door Will never disappear I’ve seen that road before .... I. PACTS 1 ...
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OPINION An unpaid subcontractor sought to except from discharge debt incurred by debt- or through the alleged breach of fiduciary duty arising from the misapplication of statutory trust funds. The bankruptcy court denied its motion for summary judgment and this appeal followed. 2 We REVERSE and REMAND. I. FACTS T & D Moravits & Co. (“Moravits”), a concrete subcontract...
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REASONS FOR DECISION On June 6, 2000 (“Petition Date”), involuntary petitions for relief were filed against Sunnyside Timber, L.L.C. (“Timber”) and Sunnyside Land, L.L.C. (“Land”, and with Timber, “Debtors”). The Debtors consented to the entry of relief under chapter 11 of the Bankruptcy Code on August 17, 2000. After substantial but unsuccessful efforts were made at reorganization, both case...
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REASONS FOR DECISION James E. Johnson, Jr., and Dora G. Johnson (“Debtors”) filed a voluntary petition for relief under chapter 13 of the Bankruptcy Code 1 on November 30, 2005, *714 and on that day an order for relief was duly entered. Confirmation of their original chapter 13 plan having been denied, the Debtors filed an Amended Chapter 13 Plan (“Plan”). Toyota Motor Credit Corporation (“...
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REASONS FOR ORDER DENYING CONFIRMATION This matter came before the Court on June 21, 2006 as a hearing on Capital One Auto Finance’s Objection to Confirmation of Plan. Capital One Auto Finance (“Capital One”) holds a lien on the Andrea White’s (“Debtor”) automobile and filed the Objection to Confirmation of Plan because Debt- or’s proposed plan intends to bifurcate it’s lien and pay ...
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Memorandum Opinion and Order Denying Administrative Expense Request I.Background AmSouth Bank seeks administrative expense status for some of the expenses it incurred in a prepetition lawsuit against the debtor. That status is of course important in any case because administrative expenses are paid before most other expenses. 1 That status is even more important in a case ...
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ORDER DENYING MOTION TO MODIFY APRIL 18, 2006 ORDER Before the Court is the Motion to Modify April 18, 2006 Order (Doc. 68) (the “Motion to Modify”) filed on May 2, 2006, by and on behalf of the involuntary debt- or’s attorney Stephen J. Capron; the Peti *489 tioning Creditors’ Response to Capron’s Motion to Modify April 18, 2006 Order (Doc. 85) (“Response to Motion to Mo...
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ORDER DENYING APPLICATION OF COUNSEL OF INVOLUNTARY DEBTOR FOR COMPENSATION AND REIMBURSEMENT OF ATTORNEYS’FEES Before the Court is the Application of Counsel of Involuntary Debtor for Compensation and Reimbursement of Attorneys’ Fees (Doc. 48) filed by Stephen J. Capron (“Capron”) and Cy Northrop (“Northrop”) (collectively “Counsel”) on February 21, 2006 (the “Application”); Petition...
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MEMORANDUM OF OPINION This Chapter 7 case is currently before the Court on the United States Trustee’s motion to dismiss for abuse under 11 U.S.C. § 707(b)(1). At issue is whether payments on the debtor-husband’s 401(k) loan may be used to reduce the debtors’ current monthly income. For the reasons that follow, the Court finds that the payments are “payments on account of secured debts” f...
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MEMORANDUM OF DECISION This adversary proceeding was initiated by plaintiff Kramer Consulting, Inc. (“plaintiff’ or “KCI”), which filed a “Complaint for Determination of Validity, Priority and Extent of Liens and for Determination of Dischargeability of Debt” against defendant Kevin P. McCarthy (“defendant” or “debtor”) on January 17, 2006. 1 Presently before the court is P...
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ORDER OVERRULING OBJECTION TO CONFIRMATION Now before the Court is an Objection to Confirmation filed by the Chapter 13 *483 Trustee, Joyce B. Babin (the “Trustee”), on May 15, 2006. The Trustee’s Objection was called for hearing on July 6, 2006. Kent Pray appeared on behalf of the Debt- or, and Jeffrey Ellis appeared on behalf of the Trustee. The parties reque...
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OPINION The Debtor’s Trustee appeals the bankruptcy court’s allowance of an administrative expense to Enterasys Networks, Inc. (“Enterasys”) in the amount of $40,340.20, pursuant to 11 U.S.C. § 503(b). This appeal involves the question of whether a bankruptcy court may allow a Chapter 11 administrative claim for services requested by the debtor of a creditor, where the creditor stood ready to p...
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DECISION & ORDER This ease presents interesting issues regarding the allowance of claims filed by the spouse of a deceased debtor and by the law firm which represented the spouse in her capacity as executrix of the decedent’s estate. John R. Schuler was the president and sole stockholder of John R. Schuler, Inc., a corporation engaged in the construction business. John R. Schuler...
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MEMORANDUM OPINION AND ORDER GRANTING TRUSTEE’S MOTION FOR TURNOVER This matter is before the Court on the Trustee’s Motion for Turnover. 1 The Trustee seeks an order requiring Debtors *289 to turn over to the Chapter 7 Trustee for administration any and all per capita distributions, and the payment advices relative to those distributions, received subsequent to th...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO CONFIRMATION AND TO DEBTORS’ EXEMPTION OF PER CAPITA INCOME, DENYING MOTION FOR TURNOVER, WITHOUT PREJUDICE, AND CONTINUING MOTION TO DISMISS AND TO CONVERT This matter is before the Court on the Trustee’s Motion for Turnover, 1 the Trustee’s Objection to Confirmation, 2 the Trustee’s Motion to Dismiss, 3 the Trustee...
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MEMORANDUM OPINION AND ORDER This matter came before the Court on September 11, 2006 for a final hearing on the Trustee’s Motion for Remand, or in the Alternative, Motion to Abstain and Remand to State Court (hereinafter “Motion to Remand”), Superior Bank’s Opposition to the Motion to Remand, and the Trustee’s Response to Superior Bank’s Opposition. Appearing at the hearing were C. Pe...
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MEMORANDUM OPINION 1 The Court has before it the Motion to Compel Arbitration and to Dismiss or Stay Litigation, filed by the defendant, Pacific Employers Insurance Company. Upon *606 consideration of the Motion and the supporting exhibits, the Opposition of Craig R. Jalbert, the Liquidating Supervisor, the Reply thereto, and oral argument, the Motion -will be ...
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ORDER RESOLVING OBJECTIONS OF TRUSTEE TO CONFIRMATION These matters come before the Court upon objections to plan confirmation filed by Chapter 13 Trustee James Wyman (“Trustee”). Pursuant to Fed. R. Bankr.P. 3015 and SC LBR 3015-1, the Court makes the following Findings of Fact and Conclusions of Law. 1 FINDINGS OF FACT 1. Trustee is the Chapter 13 Trustee for R...
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MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter came before the Court for hearing on the Debtor-Defendant’s Motion for Summary Judgment [# 16] and Mill-bury National Bank’s (the “Bank”) opposition thereto [# 23]. The Debtor seeks dismissal of the two count amended complaint on the grounds that the actions complained of in Count I occurred more than a year pri...
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MEMORANDUM OF OPINION This is an adversary proceeding in which the Plaintiff seeks a judgment against the Debtor for investment losses and a determination that the debt is non-dischargea-ble or that the Debtor should be denied a discharge altogether. Before the Court are cross-motions for summary judgment filed by the Plaintiff and the Defendant. BACKGROUND The facts set forth h...
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MEMORANDUM ON UNITED STATES TRUSTEE’S MOTION FOR IMPOSITION OF FINES PURSUANT TO 11 U.S.C. § 110 (2005) This contested matter is before the court on the Motion for Imposition of Fines Pursuant to 11 U.S.C. § 110(i)(l), (2)(D) and for Forfeiture of Compensation Pursuant to § 110(h) and Notice of Hearing (Motion) filed by the United States Trustee, Richard F. Clippard, on August 22, 2006. By th...
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MEMORANDUM The chapter 13 debtor owed Suntrust Bank a debt under a promissory note that was secured by a mortgage on the debtor’s home. The debtor’s chapter 13 plan provided that the real property, the debtor’s home, would be sold and Suntrust would be paid from the sale proceeds. First American Title Insurance Company acted as the closing agent for the sale and also issued a title in...
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MEMORANDUM OF DECISION INTRODUCTION Ford Elsaesser (“Plaintiff’) is the chapter 7 trustee for the estate of J. Gregory Weddle and Terri Weddle (“Debtors”). Plaintiff commenced this adversary proceeding to establish that Cougar Crest Lodge, LLC (“Defendant”) received a preferential transfer. Presently before the Court are Defendant’s motion for summary judgment, Doc. No. 12, and ...
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MEMORANDUM OF DECISION AFTER TRIAL In this adversary proceeding, plaintiff Tranche 1 (SVP-AMC), Inc. (“Plaintiff’) seeks denial of defendant David Relito Tan’s (the “Debtor”) bankruptcy discharge pursuant to 11 U.S.C. § 727(a)(2), (a)(3), and (a)(4)(A). For the reasons stated below, the Debtor’s discharge will be denied on all three statutory grounds. DISCUSSION A. INTRODUCTION ...
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MEMORANDUM OPINION ON TRUSTEE’S MOTION TO COMPEL TURNOVER THIS MATTER came before the Court for hearing August 18, 2006 on the Chapter 7 Trustee’s Motion to Compel Turnover of Personal Property (Doc. 89). The Chapter 7 Trustee brought the motion after being appointed to this case when the Debtors voluntarily converted from Chapter 13 to Chapter 7. As a consequence of conversion, the newly-app...
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ORDER DENYING DEBTOR’S MOTION TO EXTEND AUTOMATIC STAY THIS MATTER is before the Court on the Debtor’s Motion to Extend the Automatic Stay (“Motion”) (Doc. 30). The Debtor filed this case on August 30, 2006 and filed this Motion on September 29, 2006. Because the Debtor was a debt- or in Case Number 05-10543, which was dismissed within one year of filing this case, the stay automatica...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION ON CONTESTED PROCEEDING BASED ON DEBTOR’S MOTION TO AVOID LIEN This proceeding relates to the Chapter 13 bankruptcy case filed by Inocencio Moreno (“Debtor”) on October 14, 2005. This case was converted to one under Chapter 7 of the Bankruptcy Code on March 15, 2006. Debtor through his counsel has moved to avoid a judgment lien that ...
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MEMORANDUM OPINION ON PLAINTIFF’S REQUEST FOR INJUNCTIVE RELIEF This Adversary proceeding relates to the bankruptcy of Plaintiff/Debtor Snow-den (“Snowden” or “Plaintiff’) filed under Chapter 13. Many months before the Adversary was filed, the automatic stay was annulled and the Defendant Litton Loan Servicing, Inc. (“Litton Loan”) completed its mortgage foreclosure and evicted Snow-d...
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OPINION CONCERNING THIRD-PARTY DEFENDANT ARTHUR ANDERSEN LLP’S MOTION TO DISMISS THIRD-PARTY COMPLAINT This matter concerns the motion (the “Motion”) filed on January 31, 2006 by third-party defendant Arthur Andersen LLP (“Andersen”) to dismiss the third-party complaint (the “Third-Party Complaint”) brought against it by Barclays PLC, Barclays Bank PLC, Barclays Capital Inc., Barclays Cap...
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REASONS FOR JUDGMENT This matter comes before the Court on a Motion for “Judgment as a Matter of Law” by defendants, which the Court interprets as a Motion for Summary Judgment under F.R.C.P. 56. 1 The Complaint alleges a judgment debt owed by defendants to plaintiff is non-dischargeable under 11 U.S.C. § 523(a)(4). This is a Core Proceeding pursuant to 28 U.S.C. § 157(b)(2)(A)...
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*385 REASONS FOR DECISION Hugh Lambert Broussard and Nyola Lynette Broussard (“Debtors”) filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code 1 on June 27, 2003 (“Petition Date”), and on that date an order for relief was duly entered. Rudy O. Young (“Trustee”) is the duly appointed and qualified chapter 7 trustee. CMH Manufacturing, Inc., a...
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REASONS FOR DECISION Ronald Morris Davis (“Ronald”) and Beulah Jean Davis (“Beulah,” and with Ronald, “Debtors”) filed a voluntary petition for relief under chapter 13 of the *781 Bankruptcy Code 1 on July 16, 2002. The case was subsequently voluntarily converted to a case under chapter 7. Carla Natalie Davis (“Carla”) has filed this COMPLAINT TO DETERMINE THAT DEBT IS NOT DISCHARGED (“Comp...
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REASONS FOR DECISION Louis and Janel Collet (“Debtors”) filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code on October 14, 2005. Elizabeth G. Andrus (“Trustee”) is the duly appointed and qualified chapter 7 trustee. Presently before the court is the Objection to Objection to Debtor’s Claim of Exemptions filed by the Trustee. A hearing on the matter was held on March 21,...
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MEMORANDUM RULING Summer Robinson (“Debtor”) filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code 1 on September 20, 2005 (“Petition Date”). Elizabeth G. Andrus (“Trustee”) is the duly appointed and qualified chapter 7 trustee. Debtor listed the following property in both Schedule B (Personal Property) and Schedule C (Property Claimed as Exempt): Engagement ring wi...
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REASONS FOR DECISION Jerry Bert Hodgen and Bobbie Sue Hodgen (“Debtors”) filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code 1 on August 12, 2004, and on that day an order for relief was duly entered. Bryan F. Gill, Jr. (“Trustee”) is the duly qualified and appointed trustee. The Debtors’ discharge was issued on December 7, 2004. The Trustee has filed two complaints, ...
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REASONS FOR DECISION Mark Evan Freeman (“Debtor”) filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code 1 on February 25, 2005. The instant complaint was filed by Eagle Rock Development, LLC (“Eagle Rock”), seeking a determination of the dis-chargeability of a debt owed by the Debtor to Eagle Rock. A trial on the complaint was held on August 11, 2006. After hearing test...
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REASONS FOR DECISION ON MOTION TO CONVERT This matter comes before the Court on the debtor’s motion to convert this case to one under Chapter 13 and the objections of the Chapter 7 Trustee and a creditor, 1000 South Michigan Avenue, who filed its objection with the alternative prayer for a re-Conversion of the case to one under Chapter 7, in the event the case converted as a matter of rig...
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REASONS FOR DECISION Scully’s Aluminum Crafts, Inc. (“Debt- or”) filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code on October 24, 2003. Elizabeth G. Andrus (“Trustee”) is the duly appointed and qualified chapter 7 trustee. The Trustee has filed the pending complaint seeking to hold the Elwood Scully, Jr., Scully’s Metal Fabrication, Inc., (“Fabrication”), S...
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REASONS FOR DECISION This matter is under advisement on the Defendants’ Motion to Dismiss. This *868Court has jurisdiction over cases and adversary proceedings pursuant to 28 U.S.C. § 1334 and by reference from the District Court, pursuant to Uniform District Court Rule 83.4, incorporated into Local Bankruptcy Rule 9029.3. No party has sought to withdraw the reference and the District Court has n...
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This is an appeal from a decision of the bankruptcy court1 which determined that a real estate transaction entered into between the debtors and Blue Heron, Inc., was not a fraudulent conveyance under Minnesota law because the debtors were not insolvent at the time of the transaction and were not made insolvent as a result of the transaction. The debtors, operating as debtors in possession in a Cha...
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MEMORANDUM RULING Joel and Deborah Hill (“Debtors”) filed a voluntary petition for relief under chapter 13 of the Bankruptcy Code on April 26, 2006. Debtors have filed a chapter 13 plan to which Jeff Davis Bank and Trust Company (“Jeff Davis Bank”) has objected. A hearing on confirmation was held on July 6, 2006 at which time the testimony of the Debtors was taken. The court subsequently reset ...
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351 B.R. 651 (2006) In the Matter of James A. WISEMAN, Debtor. Heidi Wiseman, Plaintiff, v. James A. Wiseman, Defendant. Bankruptcy No. 04-33692 HCD, Adversary No. 04-3125. United States Bankruptcy Court, N.D. Indiana, South Bend Division. September 29, 2006. *652 *653 Jeffery A. Johnson, Esq., May Oberfell Lorber, Mishawaka, IN, for plaintiff. R. William Jonas, Jr., Esq., Hammerschmidt, Amaral &...
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MEMORANDUM OPINION This adversary proceeding came on for consideration on, June 22, 2006 on the Complaint filed by the Plaintiff, Michael R. Rhodes. The Plaintiff seeks discharge of tax debts owed to the Internal Revenue Service of the United States of America (the “IRS”) for tax years 2000 and 2001 pursuant to 11 U.S.C. §§ 523(a)(1), 523(a)(7), 507(a)(3) and 507(a)(8). 2 The issue is wheth...
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REASONS FOR DECISION Thomas S. Keaty (“Debtor”) filed a voluntary petition for relief under chapter 13 of the Bankruptcy Code1 on April 18, 2005 (“Petition Date”), and on that day an order for relief was duly entered. An Order Confirming Chapter 13 Plan was entered on December 28, 2005. Shortly following confirmation, the Debtor filed his Motion For Contempt Against Roy Raspanti (“Contempt Motion”...
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MEMORANDUM OPINION I. This adversary proceeding has an unusual procedural history which bears recitation. On March 18, 2003, Plaintiff Gaye L. Sterten (“the Debtor”) filed a voluntary Chapter 13 bankruptcy petition in this Court. On April 8, 2003, the Debtor commenced this adversary proceeding by filing a Complaint asserting claims arising from a consumer credit transaction ...
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MEMORANDUM OPINION This opinion is with respect to the defendant CB Richard Ellis, Inc.’s (a/k/a CB Commercial Real Estate Group, a/k/a Insignia/ESG, Inc., n/k/a CB Richard Ellis Real Estate Services, Inc.) (“CBRE”) motion to dismiss the complaint of plaintiff EXDS, Inc. (“EXDS” or “the plaintiff’), or in the alternative, to determine that this proceeding is non-core (Adv.Doc. #83). Defen...
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ORDER FOR ABSTENTION This matter comes before the Court on a Motion to Abstain filed by defendants Brenda J. Keisler as the Personal Representative of the Estate of Ernestine B. Corley, Deceased: Brenda J. Keisler as the Personal Representative of the Estate of James W. Corley, Sr., deceased; James W. Corley, Jr.; Brenda J. Keisler, individually; Elizabeth D. Griggs; Sandra P. Stevenson; ...
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ORDER DENYING REMOVAL OF CHAPTER 7 TRUSTEE AND DENYING OTHER REQUESTED RELIEF This matter is before the Court on Larry Nettles’ (“Mr.Nettles”) Motion To find out who is in charge of J.P.N. Trust, *92 MBN Trust and Replace Bob Anderson as Trustee (“Motion”). Both Robert F. Anderson (“Trustee”) and Mr. Nettles appeared at the hearing on the Motion. The trustee was represented by counsel. ...
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ORDER OVERRULING DEBTOR’S OBJECTION TO CLAIM THIS MATTER is before the Court on David Pricer Spencer’s and Patricia Kig-gins Spencer’s (“Debtors”) Objection to Proof of Claim (“Objection”) filed by Countrywide Home Loans, Inc (“Countrywide”). Both Countrywide and Debtors attended the hearing held on the Objection on August 17, 2006. Debtors do not dispute that they received funds from Cou...
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OPINION DENYING DEFENDANTS’ MOTIONS TO DISMISS Before the Court are two Motions to Dismiss this Adversary Proceeding (collectively, the “Motions”), one filed by Defendants Trivest II, Inc. (“Trivest”) and Trivest Partners L.P. (“Trivest Partners”) [D.I. 11], and the other by Defendant Gulfstar Group, Inc. [D.I. 14] (“Gulfstar”) (collectively, the “Defendants”). Plaintiffs response inc...
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MEMORANDUM-OPINION This matter came before the Court for trial on the Complaint Objecting to Discharge of Plaintiff Rosalind Pulley (“Pulley”) against the Debtor/Defendant Haywood L. Pulley (“Debtor”). The Court considered the testimony and evidence submitted at trial and the arguments of counsel. For the following reasons, the Court enters Judgment in favor of Pulley and finds the debt owed ...
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MEMORANDUM ON MOTION TO DISMISS COMPLAINT This adversary proceeding is before the court upon the Complaint filed by the Plaintiff, Drew E. Gilbert, on July 12, 2006, as amended by the Amended Complaint filed on September 19, 2006 (collectively, Complaint). By the Complaint, the Plaintiff objects to the discharge of the Debtors pursuant to 11 U.S.C.A. § 727(a)(4)(A) and/or (5) (West 20...
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MEMORANDUM OF DECISION The Court must decide whether to allow a § 503(b)(1)(A) 1 administrative expense against this bankruptcy estate for nearly $600,000.00 allegedly incurred by a commercial real estate development company relocating dozens of exotic animals. See Doc. No. 249. The chapter 11 debtor in possession, the United States Trustee (“UST”) and several other ...
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MEMORANDUM ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This adversary proceeding is before the court upon the Complaint filed by the Plaintiff on January 26, 2006, asking the court to award it a judgment against the Defendant/Debtor in the amount of $17,769.00, plus pre-judgment and post-judgment interest, and attorneys’ fees, and to determine that the judgment is nondis-chargeable und...
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MEMORANDUM OPINION1 Before the Court is the Trustee’s Second Omnibus Objection to Claims asserting *64that the secured claim filed by Charles and Frances Barker (“the Barkers”) must be reclassified as a general unsecured claim. The Barkers oppose the Objection and assert they had a valid perfected security interest in the Debtor’s truck by virtue of a judgment and sheriffs levy on the vehicle. Fo...
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OPINION 1 Before the Court is the Motion of the Philadelphia Newspapers, LLC (the “Newspaper”) to Intervene for the Limited Purpose of Seeking Access to Judicial Records and Proceedings (“Motion to Intervene”) and its related Motion for Access to Judicial Records and Proceedings (“Motion for Access”) which asks the Court to vacate several Orders sealing records of settlements in t...
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Ford Motor Credit Company filed a motion for allowance of administrative expense claim. The debtors filed an objection. The Court conducted a hearing on August 23, 2006, and granted Ford an administrative expense claim of $852.32. This opinion supplements the oral opinion given in open court. I. The debtors filed their chapter 13 petition on April 12, 2005. On July 21, 2005, the Court confirm...
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MEMORANDUM OPINION In this adversary proceeding, the trustee invokes his 11 U.S.C. § 544(a) 1 hypothetical lien creditor powers to avoid and preserve an alleged unperfected security interest in favor of Intrust Bank, N.A. (“Intrust”) that encumbers debtor’s interest in a 1999 Chevrolet Tahoe and 1994 Ford Ranger pickup (“the vehicles”). 2 The trustee also seeks a determination of the part...
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DECISION REGARDING MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT Adam Mirick, Adam Hoffman, and Be-noit Vallieres (the “Claimants”) traded power for PG & E Energy Trading Hold *328 ings Corporation, a debtor in this jointly administered case now known as NEGT Energy Trading Holdings Corporation (“ETHC”), until March of 2003. ETHC declined to a...
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*745 Memorandum. Opinion This case is before me on the motion of Revolution Portfolio, LLC (“Revolution”) for allowance of an administrative expense claim (“Revolution’s Motion”). I.Jurisdiction Jurisdiction lies pursuant to 28 U.S.C. §§ 157(a) and 1334(b) and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Ill...
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ORDER ON AMENDED MOTION FOR RECONSIDERATION (Doc. No. 350) THE MATTER under consideration is an Amended Motion for Reconsideration (Doc. No. 350) of a previous Order of Dismissal entered by this Court in the above-captioned Chapter 11 ease upon the United States Trustee’s Motion to Dismiss Case or Convert Case or, in the Alternative, for the Appointment of a Chapter 11 Trustee or E...
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OPINION This matter comes before the court upon a Complaint filed by the Debtor and the Chapter 13 Trustee to Avoid Fraudulent Transfer Pursuant to 11 U.S.C. § 548(a)(1)(B) and Deprivation of Property Without Due Process against Defendant Newaygo County Treasurer (Treasurer); and to Recover Damages for Wrongful Interference with Possessory Interest against Defendant James Richards (Richar...
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OPINION This matter comes before the court upon Plaintiffs Motion for Summary Judgment on its Complaint to determine non-dis-chargeability pursuant to 11 U.S.C. § 523(a)(9). Presented in this adversary proceeding are claims that arise in a case referred to this court by the Standing Order of Reference entered by the United States District Court for the Western District of Michigan on July 24,...
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OPINION RE: DEBTORS’MOTION TO USE INSURANCE PROCEEDS Allan and Karen Van Stelle filed a petition for relief under Chapter 13 of the Bankruptcy Code on September 27, 2005. 1 Debtors owned a 2004 Chevrolet Malibu when they filed their petition. Debtors had financed the purchase of the Malibu through Chase Automotive Finance (“Chase Automotive”). Debtors’ acknowledged in their...
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ORDER CONCERNING REAL PARTIES-IN-INTEREST In this adversary proceeding, the plaintiffs Automated Reporting Management Systems, Inc. (“ARMS”) and Robert Abraham (“Abraham”) assert that claims which they allege against the defendant Tiffany Ann Arcella-Coffman (“Arcella-Coffman”) are excepted from discharge under 11 U.S.C. § 523(a)(2), 11 U.S.C. § 523(a)(4) and 11 U.S.C. § 523(a)(6). Ar...
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MEMORANDUM OPINION ON COMPLAINT TO DETERMINE NON-DIS-CHARGEABILITY OF DEBT This case came on for hearing on July 17, 2006, on the Complaint to Determine NonDischargeability of Debt (the “Complaint”) (Doc. No. 1) pursuant to 11 U.S.C. § 523(a)(4) filed by the plaintiffs, Philip W. Hearn, John Ely, and Joseph Roberson, against the debtor/defendant, Gary L. Goodwin. The issue is whether ...
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MEMORANDUM OPINION The Chapter 11 trustee (the “Trustee”) for Rare Earth Minerals, Inc. (the “Debt- or”) seeks an order authorizing him to make a distribution to Michael Bialek, Sara and Stephen Mullins, and investors and the royalty interest owners in the Bialek # 1 Well. The Trustee also seeks payment of his commission on the amount distributed. Michael Bialek and Sara and Stephen Mullins'(the “...
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MEMORANDUM OPINION Before the Court is the determination of the amount of Sumac Corporation’s (“Sumac”) allowed claim. Newfound Lake Marina, Inc., and Newfound Marine, Inc. (individually, “Newfound Lake Marina” and “Newfound Marine,” and collectively, the “Debtors”), objected to Sumac’s proof of claim. The essence of the dispute involves a forbearance agreement (the “Agreement”) enter...
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MEMORANDUM OPINION Before the Court for determination in this adversary proceeding is a motion for partial summary judgment on certain of the claims asserted in the complaint filed by plaintiffs Dana R. Towle, M.D., P.C. and Dana R. Towle, M.D. (collectively “Plaintiffs”) for denial of discharge to debtor Karen Dana Hendrix (“Debtor”), pursuant to 11 U.S.C. §§ 727(a)(2), (a)(3), (a)(4...
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MEMORANDUM OPINION AND ORDER On September 26, 2006, a hearing was held on the motion for partial summary judgment filed by plaintiff LVR Carpet Center, Inc. (“LVR Carpet”). Defendant Carolyn Ann Coley (“Coley”) filed her response in opposition to the motion. Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper when the “pleadings, depositions, answers to interrogat...
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ORDER RE: COMPLAINT TO DETERMINE PRIORITY OF MORTGAGES This matter came before the undersigned for trial on August 2, 2006 on Debt- or’s Complaint to Determine Priority of Mortgages. Thomas G. McCuskey appeared for Debtor/Plaintiff Mary L. Van-tiger-Witte. Randall L. Jackson appeared for Defendant Mortgage Electronic Registration Systems. Assistant U.S. Attorney Martin McLaughlin appeared...
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ORDER RE: COMPLAINT TO DETERMINE DISCHARGEABILITY The matter before the court is the final trial of plaintiffs’ complaint to determine the dischargeability of their claim pursuant to 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(4). Trial was held June 6, 2006 in Council Bluffs. Plaintiffs Randall C. Davis, David Mutum, R.C.D., Inc., Mutum, Inc., R.D. Contracting, Inc., and D.E.M., Inc. (hereinafter “Pl...
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MEMORANDUM ON OBJECTION TO TRUSTEE’S SALE OF REAL PROPERTY This contested matter is before the court on the Objection to Trustee’s Sale of Real Property (Objection to Sale) filed by the Debtor’s wife, E. Claudeane Whaley (Mrs. “Whaley), on July 21, 2006, in opposition to the Trustee’s Notice of Sale and Trustee’s Motion to Sell Real Property Free and Clear of Liens and Any Interest of Spouse ...
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DECISION AND ORDER ON FEE COMMITTEE MOTION FOR PROTECTIVE ORDER In this contested matter in the jointly administered chapter 11 cases of Debtors Adelphia Communications Corporation and its affiliates (the “Debtors”), I have before me the Fee Committee’s motion, pursuant to Fed. R. Bankr.P. 7026 and Fed.R.Civ.P. 26(c), for a protective order. The Fee Committee, which consists of repre...
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MEMORANDUM OPINION This matter comes before the Court on Plaintiff Frankie Luke’s complaint objecting to discharge. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(J). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in conformance with Federal Rule of Bankruptcy Procedure 7052...
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ORDER ON OBJECTION TO CLAIM OF EXEMPTION THIS MATTER comes before the Court on the Objection to Debtor’s Claim of Ex *290 emption (“Objection”), filed by Harvey Sender, Chapter 7 trustee (the “Trustee”), and the Debtor’s Response. The parties have elected to submit this matter to the Court based on briefs, rather than requesting an evidentiary hearing. The Objection presents ...
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This is an appeal of Man Financial, Inc. (“Man”) from the final order of the United States Bankruptcy Court for the District of Minnesota entered on March 15, 2006, remanding this removed action to the District Court of the State of Minnesota for Hennepin County (the “State Court”). We reverse and remand, with instructions to transfer this action to the United States Bankruptcy Court for the Sout...
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DECISION RE: DETERMINATION OF DISCHARGEABILITY American National Bank (Bank) asks the court to determine that its claim against Alicia Dalcourt is excepted from discharge. Trial was held September 20, *870 2006 in Sioux City. David J. Koukol appeared as attorney for Bank. Martha McMinn appeared as attorney for Dalc-ourt. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). Stipulation...
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MEMORANDUM DECISION I. PRELIMINARY STATEMENT Plaintiff, Citibank, South Dakota, N.A., commenced an adversary proceeding against Loren Drake Brower, the Debtor, on October 3, 2005, to determine whether the debt due and owing to it was nondis-ehargeable under 11 U.S.C. § 523(a)(2)(A). The Debtor, who is pro se, responded, and the Court conducted various pretrial proceedings in ...
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MEMORANDUM OF DECISION Before the Court are cross motions for summary judgment, in whole or in part, filed in five adversary proceedings brought by Stephen S. Gray, the Plan Administrator (the “Plan Administrator”) of the Chapter 11 plan of liquidation of Dehon, *550 Inc. 1 (the “Debtor”). The Plan Administrator, pursuant to 11 U.S.C. §§ 547 and 550, 2 ...
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This matter was heard on September 14, 2006, on the United States Trustee’s *868 (UST) motion to dismiss the debtor’s bankruptcy case under 11 U.S.C. § 707(b). Michael Ridgeway appeared on behalf of the UST, and John Lamey appeared on behalf of the debtor. Having considered the arguments of counsel, reviewed the briefs, and being fully advised in the matter, the Court now makes thi...
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MEMORANDUM OPINION This matter came before the court on the motion filed by Robert William Brown, Jr. and Marianne Regina Brown (the “Debtors”) to set aside the court’s April 27, 2006 order denying their motion for default judgment against U.S. Department of Education, Direct Loans and U.S. Department of Education/FISL (the “Depart *807 ment”) for lack of proper service. ...
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MEMORANDUM OPINION Martin P. Sheehan, the Chapter 7 trustee (the “Trustee”) for Eugene and Debra Brown (the “Debtors”), seeks court approval to release the Debtors’ pre-petition cause of action against Ameriquest Mortgage Company (“Ameriquest”) to the Debtors in exchange for a payment of $40,000. Ameriquest objects to the Trustee’s proposed course of action on the grounds that the cau...
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MEMORANDUM OPINION On September 12, 2006, the Debtor, pro se, filed a motion to reconsider the court’s order dismissing his Chapter 13 case based on his failure to obtain a pre-petition, budget and credit counseling briefing and based on his ineligibility to obtain a postponement or waiver of that requirement. The Debtor asserts that he desires to convert his case to chapter 7, and that credi...
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MEMORANDUM OPINION Paul Adam Freeman, and Kerry and Monica Scott (collectively the “Debtors”), filed motions to allow Capital One Auto Finance (“Capital One”) to send them monthly statements of account pursuant to W. Va.Code § 46A-2-114. Capital One objects to the motions on the grounds that its computer system is designed to cease all correspondence with bankrupt debtors, the system ...
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MEMORANDUM OPINION On February 16, 2006, the court dismissed the adversary complaints filed by Discover Bank and Chase Manhattan Bank (Plaintiffs) that sought to except a debt from the Chapter 7 discharge of Jeffery W. Shreck (the “Debtor”) on the grounds that the Debtor made credit card charges with the intent to defraud pursuant to 11 U.S.C. § 523(a)(2). The court dismissed the complaints, aft...
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MEMORANDUM OF DECISION 1. FACTS AND BACKGROUND Terrell and Walter Wiley (“Debtors”) filed a joint chapter 7 petition on June 16, 2006. 1 Debtors claimed as exempt $17,900.00 they received from the Ada County Highway District (“ACHD”), which condemned a “corner” of their residential property. Debtors did not contest the taking and conveyed the land to ACHD by warranty deed on May 31, 2006. ...
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DECISION AND ORDER VACATING AUTOMATIC STAY AND DENYING STAY PENDING APPEAL Before the Court is a motion by Yael Bar-Shov (“Secured Creditor”), seeking relief from the automatic stay to proceed with a mortgage foreclosure on certain real property owned by Mark Uvaydov, the Debtor herein (“Motion”). The Debtor opposes the Motion and in apparent anticipation of the Motion being granted, he inclu...
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MEMORANDUM DECISION AND ORDER DENYING CLAIM FOR TRANSACTION FEE On remand from two levels of appeal, the Spiegel Creditor Trust (the “Trust”), successor in interest to Spiegel, Inc. (“Spiegel”) and its affiliates (together with Spiegel, the “Spiegel Group” or “Debtors”), submits this renewed objection to the claim of J.P. Morgan Securities, Inc. (“JP Morgan”). Background Spiegel was an internati...
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MEMORANDUM OPINION This matter came before the Court upon the Motion for Judgment on the Pleadings filed by W. Clarkson McDow, Jr., United States Trustee for Region Four (“United States Trustee”), in the above-captioned matter. The Court has jurisdiction over these proceedings pursuant to 28 U.S.C. §§ 157(b)(2) and 1334(b). Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. Upon cons...
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MEMORANDUM OPINION REGARDING SANCTIONS Terry Luedtke and George Luedtke seek sanctions against Tracy Knight, John Leonard, Russell, Leonard, Key and Key, PLLC, and Ronald Yandell. The central issue is whether the bankruptcy petitions in these two cases were filed in bad faith. On October 5, 2006, the Court conducted an extensive evidentiary hearing on this matter. The hearing commenced at 9:00 a...
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MEMORANDUM OPINION The Court held a trial on the merits in the above adversary proceeding on May 23-24, 2006. This is core proceeding under 28 U.S.C. § 157(b)(2) as it is the determination of whether the Debtor is a responsible person of Artec, Ltd., a Texas Limited Partnership under 26 U.S.C. § 6672. The Court has the jurisdiction to enter a final order in this matter pursuant to 28 ...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Greenpoint Mortgage Corporation (the “Creditor”) for relief from the automatic stay seeking annulment, or in the alternative, modification of the stay. For the reasons set forth herein, the Court grants the Creditor’s motion and modifies the automatic stay to allow the Creditor to proceed with a mortgage foreclosur...
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MEMORANDUM OPINION ON TRUSTEE’S APPLICATION FOR ENTRY OF FINAL ORDERS AND DECREES CLOSING CHAPTER 11 CASES Sandra A. Reese, is trustee (the “Trustee”) of the Xpedior Creditor Trust, a trust established in these Chapter 11 Bankruptcy cases by Plan confirmation. Pursuant to 11 U.S.C. § 350(a), Fed. R. Bankr.P. 3022 and Local Bankruptcy Rule 3022-1 she has applied for entry of a final or...
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OPINION CONFIRMING DEBTOR’S PLAN I. Introduction Gerardo and Christina Trejos bought a used 2002 Volkswagen Passat from Desert Volkswagen on July 5, 2005. 1 The purchase price was $18,701.40, which included $995 for an extended warranty. Desert Volkswagen agreed to finance the purchase, after a $1,000 down payment, at 13.35% over 60 months. The monthly payment was set at $...
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ORDER RE MOTION TO COMPEL PRODUCTION OF DOCUMENTS (WAIVER) On March 2, 2006, the court heard Trustee’s motion to compel the production of documents based on various alleged waivers of the attorney-client privilege. The court has considered the papers filed and the arguments presented at the hearing. For the reasons stated below, the court denies the motion. I. BACKGROUND Debtor ...
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MEMORANDUM OPINION This matter comes before the Court on the objection of Wells Fargo Financial Georgia, Inc. to confirmation of Debtor’s Chapter 13 plan. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(L). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in conformance with Fe...
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ORDER GRANTING PRELIMINARY INJUNCTION IN FAVOR OF PLAINTIFF This adversary proceeding came on for hearing on October 17, 2006, on the Plaintiffs motion for a preliminary injunction. The Plaintiff appeared by the following counsel: Timothy R. Thornton, of Briggs and Morgan, Minneapolis (arguing), Michael L. Meyer and Will R. Tansey, of Ravich Meyer Kirkman McGrath & Nau-man, Minneapolis, a...
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ORDER TO DISGORGE FEES The matter before the court is the debtors’ motion to disgorge fees paid to Mr. Peter Gemborys for legal services rendered in the above-captioned matter and in the adversary proceedings filed under this case file. The court held a hearing in Wilson, North Carolina which began on September 27, 2006 and concluded on October 2, 2006. FINDINGS OF FACT The debt...
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OPINION Dataprose, Inc. (“Dataprose”) appeals the bankruptcy court’s order granting the Motion for an Order to Compelling [sic] Enforcement of the Plan and Deeming Dataprose, Inc. Contract Rejected (“Enforcement Motion”) filed by the debtor in possession and reorganized debtor, Amerivision Communications, Inc. (“Amerivision”). We affirm. 1 I. Background Before the filing...
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ORDER This Chapter 7 case involves the Court’s authority to surcharge a debtor’s exemptions. Proeedurally, it is before the Court on the Trustee’s objections to debtors’ claims of exemption and the Trustee’s request to surcharge the claims of exemptions (Docket Entry No. 222), as amended on August 7, 2006 (Docket Entry No. 255). Debtors did not file any written response and are appearing pro...
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ORDER REGARDING CONFIRMATION These cases are before the court on the debtors’ objections to the trustee’s motions for confirmation. On August 17, 2006, the court conducted a hearing on these matters in Fayetteville, North Carolina. In each of these cases, the debtor filed a petition pursuant to chapter 13 of the Bankruptcy Code. Each of the petitions contains a proposed plan submitted by the ...
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MEMORANDUM OPINION On August 30, 2005, James and Linda Morgan (“Debtors”) filed the above-captioned adversary proceeding against Jo-Ann Goldman, Chapter 13 Trustee (“Trustee”), and nine unsecured creditors in the Chapter 13 case. The complaint alleges that the Trustee, acting pursuant to her duties, improperly disbursed $19,150.37 pro rata to the named unsecured creditors contrar...
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MEMORANDUM OPINION Now before the Court is the Chapter 7 Trustee’s Complaint to Avoid Preferential Payment and for Judgment Against the Defendant, filed on October 20, 2005. 1 The Court heard oral arguments and testimony on this matter on August 22, 2006. Mr. M. Randy Rice, Chapter 7 Trustee (“Trustee”), appeared on his own behalf, and Mr. Martin E. Lilly appeared on behalf of Hydro Temp ...
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*262 MEMORANDUM OPINION Pacific Cascade Federal Credit Union objected to confirmation of Debtors’ chapter 13 plan of reorganization, which provides for the “cram-down” of Pacific Cascade’s collateral, a 2001 Toyota Highlander. Because the issue involves an unsettled area of law which took effect as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), I took th...
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DECISION AND ORDER ON MOTION TO EXPUNGE CLAIM In this contested matter in a case under Chapter 7 of the Bankruptcy Code, debtor Charles Moore (the “Debtor”) moves to expunge, under Bankruptcy Code section 502(b)(1), the claim filed by Cadies of Grassy Meadows II, LLC (“Cadies”). The Cadies claim rests on a judgment that was entered against the Debtor 14 years ago, and that Cadies acqu...
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DECISION AND ORDER ON MOTION TO DISMISS In this adversary proceeding under the umbrella of the chapter 11 case of Perry H. Koplik & Sons, Inc. (“Koplik”), plaintiff Michael S. Fox (the “Trustee”), the Litigation Trustee for the Koplik estate, seeks money damages from defendant Bank Mandiri for Bank Mandiri’s failure to hon- or a letter of credit. Bank Mandiri moves, pursuant to Fed.R....
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OPINION Debtors appeal an order denying confirmation of their chapter 13 plans and dismissing their case. I. ISSUES ON APPEAL Whether the Debtors’ proposed Chapter 13 plan, prior to amendment, unfairly discriminated between joint and individual creditors even though the only property available for distribution in a hypothetical Chapter 7 case would be property held as tenants by the entiret...
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OPINION This matter is before the Court on Motion of Robert Allen Fetter (“Debtor”) to Dismiss this adversary proceeding and the Response thereto of John L. Swartz, Trustee (“Trustee”). This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(E). On July 12, 2005, Debtor filed his voluntary Chapter 7 p...
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ORDER ON MOTION OF EUREKA BROADBAND CORPORATION TO DISMISS DEBTOR’S PETITION AND OBJECTION TO CONFIRMATION This matter came before the Court for an evidentiary hearing on the Motion of *559 Eureka Broadband Corporation to Dismiss Debtor’s Petition [# 78], to which the Debtor objected [# 98], and Eureka’s Objection to Confirmation of Debtor’s First Amended Chapter 13 Plan [# 77]. The following...
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REASONS FOR ORDER This matter came on for hearing on July 13, 2006 on motions for summary judgment filed by the debtor, Entergy New Orleans, Inc., the debtor’s parent company, Entergy Corporation, Inc., and the debtor’s affiliates, Entergy Services, Inc., and Systems Fuels, Inc. The motions for summary judgment sought denial of the motion for certification of classes filed by the Gordon plaintif...
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DECISION & ORDER BACKGROUND On January 19, 2005, Shannon Catalano (the “Debtor”) filed a petition initiating a Chapter 7 case. On the Schedules and Statements required to be filed by Section 521 and Rule 1007, the Debtor indicated that she had approximately $800.00 on de *362 posit in the ESL Federal Credit Union (“ESL”) and was indebted to ESL in the amount of appro...
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ORDER GRANTING SECURED CREDITORS’ MOTION TO ANNUL STAY THIS CORE PROCEEDING 1 comes before the Court on Accredited Home Lenders, Inc.’s, and Mortgage Electronic Registration Systems, Inc.’s, (collectively, “Secured Creditors”) Motion for Relief From Stay, under Federal Rule of Bankruptcy Procedure 4001 and 11 U.S.C. § 362(d), to allow them to seek confirmation by the Livingston Circuit Court ...
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ORDER DENYING WAIVER OF CREDIT COUNSELING AND DISMISSING CASE Mark McBride filed a voluntary petition for relief under chapter 13 of the Bankruptcy Code on August 29, 2006. A request to waive the credit counseling requirement of 11 U.S.C. § 109(h)(1) 1 accompanied the petition. The request is grounded generally on § 109(h) and makes no reference to a particular subsection. As the basis for wa...
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ORDER DISMISSING CASE THIS MATTER is before the Court on the debtors’ motion to dismiss this case, for confirmation of the chapter 13 plan, for dismissal of the case and an objection to the plan filed by Haiyan Lin, and for conversion of the case to chapter 7 on motion of Branch Banking and Trust Company of South Carolina. The issue here is whether the debtors’ case should be dismissed or...
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ORDER This matter is before the Court on Arthur Thomas’ (“Debtor”) Motion to Extend Stay (“Motion”) pursuant to 11 U.S.C. § 362(c)(3)(B) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). 1 The *753 Motion and Notice of Hearing on the Motion were served on all creditors, but none filed an objection. The Chapter 13 Trustee ...
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MEMORANDUM OPINION AND ORDER ALLOWING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT A complaint was filed in this adversary proceeding by Stephen L. Beaman, chapter 7 trustee for Head Grading Co., Inc, to avoid a lien held by the defendant, Ruby Lee Head. The matter before the court is the trustee’s motion for summary judgment. A hearing was held in Wilson, North Carolina on September 7, 2006. Head...
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MEMORANDUM OF OPINION AND ORDER The matters before the Court are cross motions for summary judgment (“Motions”) filed by the Plaintiff Richard A. Baumgart, Chapter 7 Trustee (Trustee), and co-defendant creditor, Household Financial Services (Household). The Trustee’s adversary complaint seeks a court determination of the validity, priority, and extent of certain liens on the residenti...
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*256MEMORANDUM DECISION REGARDING UNITED STATES TRUSTEE’S APPLICATION FOR ENTRY OF DEFAULT JUDGMENT AND DEFENDANT’S MOTION TO SET ASIDE ENTRY OF DEFAULT This adversary proceeding posits the question, “What happens to an objection to chapter 7 discharge after the case is converted to chapter 13?” The United States Trustee (“UST”) filed this adversary proceeding to deny the Debtor’s discharge, or d...
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MEMORANDUM DECISION DENYING ADMINISTRATIVE EXPENSE CLAIMS Stuart C. Fisher (“Fisher”), a creditor of the debtor, requests this Court grant him an administrative expense in the total amount of $101,265.95 pursuant to sections 503(b)(1)(A), (3)(d) and/or (4) of the Bankruptcy Code (the “Code”). Fisher alleges that he advanced $20,500 to the Debtor’s professionals as well as $50,000 to s...
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ORDER DENYING MOTION TO CONVERT TO CHAPTER 13 THIS MATTER is before the Court on the motion of Doris Anderson to convert this Chapter 7 case to one under Chapter 13 of the Bankruptcy Code. A previous conversion occurred in the case. Findings of Fact 1.Willie Anderson and Doris Anderson were husband and wife. They filed a joint, voluntary petition for relief under Chapter 13 of the Bankrup...
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MEMORANDUM OPINION Before the Court is the Chapter 13 Trustee’s objection to the confirmation of *342 the Debtors’ above median plan. The Trustee argues that several of the Debtors’ claimed expense deductions from disposable income should not be allowed and that the plan fails to satisfy section 1325(b) 1 in that it does not devote all available disposable inco...
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ORDER On July 27, 2006, Digeo, Inc. (“Digeo”), the Plaintiff in the above-referenced adversary proceeding (the “Adversary Proceeding”), filed a Complaint for Declaratory Judgment as to the Rights and Interests Granted by § 363 Order/Sale, or, in the Alternative, for Damages (the “Complaint”) [Adversary Proceeding Docket (“AP Docket”) # 1], On August 21, 2006, Digeo filed an Applicatio...
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DECISION ON MOTION TO ENFORCE TERMS OF CONFIRMATION ORDER AND CHAPTER 11 PLAN AND CLASSIFY PROOFS OF CLAIM In this contested matter, reorganized chapter 11 debtors, Indesco International, Inc. (“Indesco”), its affiliate AFA Products, Inc. (“AFA”), and Continental Sprayers International, Inc. (the “Debtors”), seek to enforce the classification of the claims of Merit Abrasive Products, Inc. (“Mer...
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ORDER On the 20th day of September, 2006, the above referenced adversary proceeding *305 came on for trial. Counsel appearing were Lloyd Cole and Ray Green for Plaintiff, and Teddy Abbott for Defendants. After hearing arguments of counsel, the Court does hereby enter the following findings and conclusions in conformity with Rule 7052 Fed. R. Bankr.P., in this core proceed...
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MEMORANDUM OPINION This cause is before the Court on a Motion to Employ Attorney for Trustee for Special Purpose (the “Motion to Employ”), pursuant to which Elaine B. Greaves, as Chapter 7 Trustee (“Trustee”) seeks to employ Michael Gallo, Esq. (“Gallo”) for two specified purposes. The stated purposes both relate to an adversary proceeding styled General Motors Accep *29 ...
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DECISION AND ORDER At Roanoke in said District this 20th day of April, 2006: The matter before the court is the debt- or’s complaint against the United States Department of Housing and Urban Development (“HUD”) to recover his 2003 federal income refund which HUD set off against the debtor’s pre-petition HUD Title I debt. The debtor also seeks a finding that HUD has violated the § 362...
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ORDER The issue in this contested matter is whether Larry James Moore and Tabitha Y. Moore (“Debtors”) may surrender an automobile to AmeriCredit Financial Services (“AmeriCredit”) in full satisfaction of AmeriCredit’s claim that is secured by the vehicle. On November 14, 2005, the Debtors filed a voluntary petition for relief and a plan of reorganization under the provisions of Chapter 13 ...
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OPINION The complaints at issue in each of the above-captioned adversary proceedings contain an allegation that a claim resulting from the Defendant’s operation of a motorboat while intoxicated is excepted from discharge under Section 523(a)(9) of the Bankruptcy Code. In each proceeding, the Defendant, Casey A. Barnick (DEBTOR), moved to dismiss those counts as failing to state a clai...
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MEMORANDUM AND ORDER DENYING IN PART UNITED STATES TRUSTEE’S MOTION TO DISMISS The United States Trustee’s Motion to Dismiss Pursuant to Section 707(b) 1 is currently pending before the Court. Debtors David Dewayne Close, Jr., and Jada Kathleen Close appear by counsel Cynthia F. Grimes. The United States Trustee (“UST”) appears by David P. Eron. The UST seeks dismissal first fo...
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MEMORANDUM OPINION 1 The Court has before it the Motion of Joshua Ross for (I) Clarification Regarding Stipulation and Agreed Order Lifting Automatic Stay and (II) Determination Regarding Order Approving Sale Free of Liens and Encumbrances (“the Motion”). A sister court has asked parties in litigation before it to seek clarification of an order of this Court, which has given rise to the matte...
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MEMORANDUM DECISION AND ORDER Before the Court is a dispute between two creditors of the debtor as to the priority of their interests in proceeds arising from the sale of property with each creditor asserting a first priority in a portion of the sale proceeds. In determining this issue, the Court needs to address, among other things, the relative priority of a judgment creditor who docket...
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ORDER SUSTAINING CHAPTER 13 TRUSTEE’S OBJECTION TO CONFIRMATION OF PLAN This case involves an issue new to this Court — the appropriate way to calculate the tax expense for the purpose of determining whether a Chapter 13 debtor meets the requirement that he devote “all of [his] projected disposable income” to the plan under § 1325(b)(1)(B) of the Bankruptcy Abuse Prevention and Consumer Protect...
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ORDER DENYING DEBTOR’S MOTION FOR CONFIRMATION OF CHAPTER 13 PLAN The trustee has delayed the meeting of creditors and the recommendation regarding confirmation in this matter because the debtor has not yet filed her 2005 tax returns as required by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). The debtor demands confirmation, arguing that section 1308 of ...
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MEMORANDUM OPINION I. In this case, an unsecured creditor seeks relief from the automatic stay under 11 U.S.C. § 362(d)(1) in order to proceed with a lawsuit that she commenced against the Debtor in the U.S. District Court for the Eastern District of Pennsylvania a few weeks before the commencement of the Debtor’s chapter 7 bankruptcy case. In the litigation, the creditor raises ...
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MEMORANDUM ON PLAINTIFFS’ MOTION TO AMEND COMPLAINT This adversary proceeding is before the court upon the Complaint to Determine Dischargeability of Debts Owed to Plaintiffs (Complaint) filed by the Plaintiffs on May 23, 2006, asking the court to award them a judgment against the Defendant/Debtor and to make a determination that the judgment is nondischargeable “under 11 U.S.C. § 523...
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MEMORANDUM OPINION FINDINGS AND CONCLUSIONS DISMISSING CASE Debtors completed credit counseling on January 24, 2006. Debtors did not file their petition initiating this chapter 7 bankruptcy case until August 2, 2006, which is approximately 190 days after they completed credit counseling. Debtors are not eligible for bankruptcy relief because they did not satisfy the requirements of 11...
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MEMORANDUM OPINION ON THE MOTION OF THE UNITED STATES TRUSTEE TO DISMISS CHAPTER 7 CASE PURSUANT TO 11 U.S.C. § 707(b)(2) I. INTRODUCTION LeManda and Jeffrey Singletary (the Debtors) filed a Chapter 7 petition on February 1, 2006 indicating that the presumption of abuse did not arise based on their belief that they had sufficient deductions to their current monthly income under 11 U....
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ORDER DENYING TRUSTEE’S MOTION TO DISMISS UNCONFIRMED PLAN On April 26, 2006, the trustee filed a motion to dismiss this unconfirmed Chapter 13 case. The motion cited two grounds — failure to begin making plan payments within 30 days of filing the petition, and failure to obtain the pre-filing credit counseling briefing required by 11 U.S.C. § 109(h) within the 180-day period prior to the...
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ORDER GRANTING TRUSTEE’S MOTION TO DISMISS Debtor Charmaine Richie filed her Chapter 7 petition on January 20, 2006. The United States Trustee has moved to *571 dismiss the debtor’s bankruptcy proceeding as an abuse of the provisions of Chapter 7. The trustee made this motion pursuant to §§ 707(b)(1) and (b)(3)(B) of the Bankruptcy Abuse Prevention and Consumer Protection Act...
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MEMORANDUM OPINION The chapter 7 trustee in these adversary actions seeks to compel an instrumentality of the Commonwealth of Pennsylvania to turn over the accounts of debtor Bonnie Tykla and debtor Robert Hampton in a deferred compensation plan (“DCP”) that the Commonwealth has established for its officers and employees. The chapter 7 trustee asserts that debtors’ DCP accounts *441are included...
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MEMORANDUM AND ORDER GRANTING (IN PART) DEBTOR’S MOTION TO AVOID JUDICIAL LIEN The matters before the court are (a) the above-referenced debtor’s (the “Debtor”) *390 Motion To Avoid Judicial Lien under § 522(f) of the Bankruptcy Code (Doc. I.D. No. 7, the “Motion”) 1 and (b) National Wood Products, Inc.’s (“NWP”) objection thereto (Doc. I.D. No. 35, the “Object...
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MEMORANDUM-OPINION This matter is before the Court on the Motion for Summary Judgment of Plaintiffs Matsuda, LLC, G.W. Chandler and Kathy Chandler (collectively referred to herein as “Plaintiffs”) against Defendants Beverly A. Duff, Richard W. Compton, Milton S. Compton, III, Paul B. Compton and Smith Mining & Materials, LLC (collectively referred to herein as “Defendants”). The Court...
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ORDER DENYING UNITED STATES’ MOTION TO DISMISS AND ORDER ABSTAINING FROM DETERMINING LEGALITY AND AMOUNT OF TAX ASSESSMENT UNDER SECTION 505 Before the Court is the Defendant United States’ Motion to Dismiss (Adv.Doc.8) and the United States’ Memorandum in Support of Motion to Dismiss (Adv.Doc.9), filed on June 16, 2006, and the Plaintiffs Response to United States’ Motion to Dismiss and Brie...
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MEMORANDUM OF DECISION GRANTING TRUSTEE’S MOTION TO VACATE ORDER GRANTING DEBTOR’S APPLICATION FOR WAIVER OF CHAPTER 7 FILING FEE A limited in forma pauperis provision took effect in the bankruptcy courts on October 17, 2005, pursuant to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). See Pub.L. 109-8, 119 Stat. 23 (2005). The relevant statute establishes a...
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ORDER GRANTING MOTION FOR RELIEF FROM AUTOMATIC STAY (FORD MOTOR CREDIT COMPANY) THIS MATTER is before the Court on the Motion for Relief from Automatic Stay and Abandonment of Property (“Motion”) filed by Creditor Ford Motor Credit Company (“FMC”), by and through its attorney of record, Allan L. Wainwright. This bankruptcy proceeding is subject to the Bankruptcy Abuse Prevention and Consumer...
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356 B.R. 177 (2006) In re Kenneth R. LEE, and Peggy A. Lee, Debtors. No. 06-155. United States Bankruptcy Court, N.D. West Virginia. October 30, 2006. *178 James T. Kratovil, Kratovil and Amore PLLC, Charles Town, WV, for Debtors. MEMORANDUM OPINION PATRICK M. FLATLEY, Bankruptcy Judge. Kenneth and Peggy Lee (the "Debtors") seek to reopen their discharged Chapter 7 bankruptcy case to file two "a...
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MEMORANDUM OPINION WesBanco Bank, Inc. (“WesBanco”), objects to the motion filed by Joyce A. Nice (the “Debtor”) to cramdown the value of its secured claim against a 2005 Chevrolet Surburban from $56,600 to $36,050. 1 Wes-Banco argues that the replacement 2 value of the vehicle is $43,874, based on the N.A.D.A. listing for the vehicle’s particular make and model,...
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MEMORANDUM OPINION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The above ease came before the Court on the defendant’s motion for summary judgment filed on August 1, 2006, in response to the debtor-plaintiffs complaint alleging the creditor-defendant violated the automatic stay [i.e. 11 U.S.C. § 362(a)] by cashing the plaintiffs check after she filed a petition for relief under Chapter 1...
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MEMORANDUM DECISION STAYING LITIGATION Calpine Corporation (“Calpine”) and several of its affiliates (together with Cal-pine, the “Debtors”) seek entry of an order for an extension of the automatic stay to the prosecution of an action pending in the District of Nevada, Nevada Power Company v. Calpine Corporation, Moapa Energy Center, LLC, Fireman’s Insurance Company, and Does I-X, ...
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MEMORANDUM OPINION Before the court is the chapter 13 trustee’s objection to the confirmation of the debtor’s plan. The trustee contends that the plan does not provide for payment of all of the debtor’s disposable income over the applicable commitment period as required by § 1325(b)(1)(B). The parties have filed a joint stipulation of undisputed facts and respective briefs of law. Upon consider...
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OPINION This matter came before the Court for trial on confirmation of the Second Amended Chapter 13 Plan (“Plan”) filed on May 31, 2006 by Dennis P. McCormick and Marcia McCormick (sometimes hereinafter “Debtors”). Confirmation is opposed by U.S. Bank, a secured creditor. This case and the proposed Plan raise interesting issues regarding the use of a secured creditor’s cash collateral to...
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MEMORANDUM I. INTRODUCTION Several contested matters are before the Court: 1) the Chapter 7 Trustee’s Motion to Assume and Assign Certain Executory Contracts; 2) the Motion by Chapter 7 Trustee for Authority to Sell by Private Sale Certain Assets of the Debtors Free and Clear of All Liens, Claims, Encumbrances and Interests; and 3) the Application of Dr. David Platt and Pro-Pharmaceu...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the debtor’s Motion to Approve Entry of Order Relating to Poydras (Louisiana), LLC. The debtor is asking this Court to approve an agreement it reached with Poydras (Louisiana), LLC (“Poydras LA”), whereby Poydras LA would pay to the debtor any monetary distributions that Poydras LA would ordinarily make to WP New Orleans, L.L...
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*385 RULING ON DEBTORS’ MOTION TO AVOID JUDGMENT LIEN AS IMPAIRING EXEMPTION I. Bruce Saucier and Sandra D. Saucier (together “the debtors”), on May 17, 2002, jointly filed a petition under Chapter 7 of the Bankruptcy Code. Their estate trustee filed a report of no distribution and the court, on September 3, 2002, granted the debtors a discharge. The debtors’ bankruptcy case was closed on...
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MEMORANDUM OPINION This matter is before the court on cross-Motions for Summary Judgment by Defendant The CIT Group/Consumer Finance, Inc. (“CIT”) and the Plaintiff Trustee. This is another in a line of cases in which the Trustee challenges the validity of a mortgage based on an allegedly defective acknowledgment. The issues before the court are whether the mortgage was properly ackno...
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MEMORANDUM OPINION I INTRODUCTION Before this court are cross motions for summary judgment concerning a complaint to determine dischargeability of debt, involving 11 U.S.C. § 523(a)(4) and (7). This court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (I). This memorandum opinion constitutes the cou...
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MEMORANDUM This matter is before the court on Genoa National Bank’s motion for partial summary judgment (Fib# 18) and resistance by Southwest Implement, Inc. (Fils. # 63 & 68). Donald L. Swanson and R. Scott Johnson represent Genoa National Bank, and David W. Pederson represents Southwest Implement. The motion was taken under advisement as submitted without oral arguments. ...
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OPINION 1 Before the Court are cross motions for summary judgment in the above adversary proceeding filed by the chapter 11 Trustee of the Debtors’ estate and by Avaya, Inc., the purchaser of substantially all the assets of the Debtors. The Trustee has also filed a Motion for Sanctions seeking judgment in his favor as a result of Avaya’s destruction of books and records essential ...
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MEMORANDUM OPINION Debtor-in-possession Craig Gabel filed a complaint under 11 U.S.C. § 363(h) 1 to sell real property and oil and gas interests in which he and his estranged common law wife, Deborah Spicer, are tenants in common. Ms. Spicer opposes selling the real estate and oil property under § 363(h) because she believes the property can be divided in kind and that she can operate the p...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING CONFIRMATION OF THE FOURTH AMENDED PLAN OF REORGANIZATION OF ARMSTRONG WORLD INDUSTRIES, INC., AS MODIFIED Armstrong World Industries, Inc. (“AWI ”), as debtor and debtor in possession (the “Debtor”), having proposed and filed the Fourth Amended Plan of Reorganization of Armstrong World Industries, Inc., dated May...
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OPINION GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT UNDER 11 U.S.C. § 546(e) I.ISSUE. This adversary proceeding arises from the 1999 leveraged buyout (“LBO”) of the Debtor, Quality Stores, Inc. (“Quality”). The Plaintiffs, QSI Holdings, Inc. and Quality, acting through their chief litigation officer (collectively, the “Plaintiffs”), seek to avoid payments made to approximat...
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ORDER CONFIRMING THE FOURTH AMENDED PLAN OF REORGANIZATION OF ARMSTRONG WORLD INDUSTRIES, INC., AS MODIFIED Armstrong World Industries Inc., as debtor and debtor in possession in the above captioned chapter 11 cases (“AWI” or the “Debtor”), having proposed and filed the Fourth Amended Plan of Reorganization of Armstrong World Industries, Inc., dated May 23, 2003 (as modified by the modifica...
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Memorandum of Decision Denying Plaintiff’s Motion and Granting Defendants’ Motion for Summary Judgment on Count II of the Complaint The United States of America, acting on behalf of the Rural Housing Service (“RHS” or “Plaintiff’), has filed a complaint presenting two counts: the first seeks revocation of the August 15, 2005 confirmation order entered in the bankruptcy case of Allen a...
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MEMORANDUM OPINION AND ORDER RE: OBJECTION TO CONFIRMATION BY GMAC The Court conducted a hearing on GMAC’s Objection to Confirmation on May 4, 2006. Fed. R. Bankr. P. 9014. Resolution of this matter is a core proceeding. 28 U.S.C. § 157(b)(2). The Court has reviewed the testimony from the hearing and the record as a whole. This Memorandum Opinion and Order shall serve as the Court’s findings of...
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OPINION This matter comes before the court upon a Complaint filed by Home Acres Building *828 Supply Co. (Home Acres) to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(4). In response, the Defendants filed a Motion for Summary Judgment. Presented in this adversary proceeding are claims that arise in a case referred to this court by the Standing Order of Reference en...
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ORDER ON RENEWED MOTION OF ADVANCED IMAGING CENTER OF NORTHERN ILLINOIS LIMITED PARTNERSHIP AND DR. GE-ROLIMATOS FOR AN ORDER GRANTING RELIEF FROM THE AUTOMATIC STAY AND REQUEST FOR EXPEDITED HEARING THEREON (Doc. No. 89) THE MATTER under consideration in this yet-to-be-confirmed Chapter 11 case is a Renewed Motion for Relief from the Automatic Stay filed by Advanced Imaging Center of Norther...
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ORDER DETERMINING § 362(b)(4) STATUS OF SOUTH CAROLINA SUPREME COURT AND OFFICE OF DISCIPLINARY COUNSEL THIS MATTER is before the Court on motion of The Supreme Court of the State of South Carolina (“South Carolina Supreme Court”) and The Office of Disciplinary Counsel, Henry B. Richardson, Jr., Disciplinary Counsel (“ODC”) for determination of status under 11 U.S.C. § 362(b)(4) 1 ...
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MEMORANDUM OPINION The court has held a trial in the above captioned adversary proceeding. The following are the Findings of Fact and Conclusions of Law of the court. A separate conforming Judgment will be entered. To the extent any of the Findings of Fact are considered Conclusions of Law, they are adopted as such. To the extent any of the *394 Conclusions of Law are con...
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OPINION Procedural History The Debtors Harvard Industries, et al. (“Harvard”) filed a motion styled “Notice of Motion Requesting a Determination as to Harvard’s Right to a Tax Refund Pursuant to 11 U.S.C. § 505” (“Tax Refund Motion”) on June 24, 2003. In September of that year, the Debtors amended the Tax Refund Motion to clarify certain statements made in the original motion. Prior to th...
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MEMORANDUM OPINION REGARDING COMPLAINT OBJECTING TO DISCHARGE OF DEBT Before the Court is the complaint of Anna Lorraine Williford McCrey objecting to the discharge of a debt owed by debtor to her. This Court has jurisdiction of this proceeding pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding. I. Facts McCrey and debtor met at a casino in Lake Charles, Louisiana in April 200...
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356 B.R. 519 (2006) In re David John CASEY, Debtor. No. 06-01195-PCW13. United States Bankruptcy Court, E.D. Washington. October 27, 2006. *520 *521 Dennis M. Wallace, Spokane, WA, for Debtor. MEMORANDUM DECISION RE: CONFIRMATION OF PLAN PATRICIA C. WILLIAMS, Bankruptcy Judge. This case challenges the Court to define the role to be played by the Statement of Current Monthly Income and Calculatio...
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MEMORANDUM OPINION Before the Court is the matter of whether the Debtor’s ex-spouse is a “creditor” *325 and thus has standing to object to the Debtor’s discharge pursuant to section 727(a). 1 The Debtor filed a motion for summary judgment. For the reasons stated below, the court finds that the purported creditor has no bankruptcy claim and is not a creditor. Accordingly, the Debtor’s mot...
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DECISION & ORDER Loan agreements frequently contain the borrower’s promise to pay legal fees that a secured lender may subsequently incur in the enforcement of its rights. In bankruptcy, such covenants will never create an unfettered entitlement to recover the costs and expenses of counsel. Rather, section 506(b) of the Bankruptcy Code imposes the further requirement of reasonableness...
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MEMORANDUM OPINION ON DEBTOR’S SUPPLEMENTAL MOTION TO DISMISS FIRST AMENDED COMPLAINT OBJECTING TO DISCHARGE PURSUANT TO 11 U.S.C. §§ 523 AND 727 I. INTRODUCTION William Kilroy (Kilroy) filed a Chapter 7 petition on October 13, 2005. On April 6, 2006, T. Layng Guerriero (Guerriero), a former business partner of Kilroy in various ventures, filed a Complaint Objecting to Discharge unde...
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Debtors appeal the bankruptcy court’s judgment, after trial, finding the entirety of a judgment obtained against them non-dischargeable as against Debtor Gregory Daviscourt (“Greg”) and partially non-dis-chargeable against Debtor Patricia Davis-court (“Patricia”). Columbia State Bank, N.A. (“Columbia”) cross-appeals the bankruptcy court’s dismissal of a portion of its claim against Patricia. We...
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MEMORANDUM OPINION I. A bankruptcy discharge is a powerful legal right. In the right circumstances, it provides an opportunity for an unfortunate debtor to climb up and out of the depth of debt to start life anew without the albatross of financial stress. The discharge is the culmination of a successful bankruptcy case. The exercise of this legal right comes with certain responsi...
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ORDER DENYING DEFENDANT’S MOTION TO DISMISS This matter came before the Court on September 6, 2006 at 9:30 a.m. on the Defendant’s Motion to Dismiss Complaint to Determine Dischargeability of Debt for Lack of Standing and for Failure to State a Claim Upon Which Relief Can be Granted (CP # 85). The Court has reviewed the pleadings filed by the parties, the record in this case, consider...
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MEMORANDUM 1. INTRODUCTION The matter before the Court is the Amended Complaint of Kevin J. Farley (“Farley”), individually, and as a fifty-percent shareholder of Allstate Carting, Inc. (“Allstate”), against the Debtor/Defendant, Phillip A. Romano (“Romano” or the “Debtor”), the President and other fifty-percent shareholder of Allstate. Through his Amended Complaint, Farley seeks a d...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Objection of Debtor to Proof of Claim of Glenn W. Machado (the “Machado Claim”). 1 By way of background, Curtis M. Perry (“Perry” or the “Debtor”) filed a Chapter 11 petition on December 4, 1998. His Chapter 11 case was converted to a case under Chapter 7 on February 19, 1999. The Debtor did not list Glenn W. Ma...
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*663 MEMORANDUM OPINION This matter comes before the Court upon the Motion for Summary Judgment (“Motion”) filed by the Plaintiff, Charles L. Marcus, Chapter 7 Trustee, in the above-captioned matter. Upon consideration of the pleadings and arguments therein, the Court makes the following findings of fact and conclusions of law. I. FINDINGS OF FACT The Debtor filed, by counsel, a voluntary...
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MEMORANDUM OF OPINION AND ORDER Before the Court is the Joint Motion of Debtor and Ford Motor Credit Company to Vacate Discharge for the Limited Purpose of Filing Reaffirmation Agreement. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and General Order No. 84 of this District. After considering the parties’ joint motion and supplemental brief in support of the motio...
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OPINION AND ORDER These two Adversary Proceedings, involving different Debtors, have been consolidated for hearing and decision because they present identical issues and the same Defendant. The Defendant has moved to dismiss and the Debtors have opposed. Although the facts are not exactly “stipulated,” it appears from the submissions that there is no material dispute. For ease of expression, th...
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DECISION The doctrine of res judicata — often referred to in modern terminology as “claim preclusion” — has influenced the outcome of countless bankruptcy decisions in the past and, undoubtedly, will continue to do so in the future. When res judicata applies, it forecloses relitigation of claims which were either decided or could have been decided *845 in prior litigation. The case at bar...
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MEMORANDUM OF DECISION Introduction Creditor FRC Investment Trust, Trustee Services (“Creditor”) filed a Motion for Relief from Stay. Docket No. 20. The Court conducted a hearing concerning the motion, and has considered the submissions and evidence submitted by the parties, the arguments of counsel, as well as the applicable law. This Memorandum constitutes the Court’s findings ...
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MEMORANDUM OF DECISION The chapter 11 debtor, Cameron D. Melton (“Debtor”), filed applications to obtain nunc pro tunc court approval to employ an attorney and accountant to represent him in this bankruptcy case. Docket Nos. 14-15. There is no dispute that both professionals meet the requirements for employment set forth in § 327(a). 1 However, the U.S. Trustee has q...
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ORDER AND OPINION This matter came on for hearing before the court on October 5, 2006 upon the Chapter 13 Trustee’s Objection to Confirmation of Debtor’s Chapter 13 Plan entered on September 5, 2006. Benjamin Lovell appeared for the Chapter 13 Trustee and Sandra Pickering appeared for the Debtor Clara Delois Alston. Having considered the matters set forth in the pleadings, the evidence, and the...
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ORDER PARTIALLY GRANTING DEFENDANT, MEDIA BUYING, INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT. THIS MATTER came before the Court for hearing on Thursday, September 21, 2006 upon the parties cross motions for partial summary judgment. See C.P. 41 and C.P. 42. The Trustee instituted this adversary proceeding to recove...
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MEMORANDUM AND ORDER This matter before the Court is South Atlanta Neurology and Pain Clinic, P.C.’s (“South Atlanta”) complaint to determine dischargeability of debt against Robert J. Lupo (“Debtor” or “Lupo”). The Court acquires core matter jurisdiction over this proceeding under 28 U.S.C. 157(a) and (b)(2)(A), (I) and (0) and General Order No. 84 of...
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MEMORANDUM OPINION OVERVIEW In a Complaint filed November 8, 2005, Debtor and Plaintiff David L. Seay (“Plaintiff’) challenges the Internal Revenue Service’s (“IRS”) assessment of unpaid individual income taxes and interest for Plaintiffs 1982 tax-year (the “1982 as *617 sessment”). Plaintiff further requests a return of tax refunds in the amount of $6,928 retained b...
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DECISION AND ORDER At Roanoke in said District this 8th day of November, 2006: The matter before the court arises as a result of the objection to debtors’ claim of homestead exemption by George A. McLean, Jr., Trustee (herein the Trustee). The issue for decision is whether the debtors complied with the requirements of Code of Virginia, § 34-17. 1 For the reasons stated in this decision and ...
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MEMORANDUM OPINION This matter comes before the Court on the motion of David R. Brown, the Chapter 7 trustee (“Trustee”) of the estate of James Christopher Szabo, to enforce the judgment and imposition of a resulting trust on the assets in the hands of Carol Szabo, Metrikis Properties, LLC, and other punitive relief. For the reasons set forth herein, the Court grants the Trustee’s motion to enf...
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ORDER DENYING EX PARTE RELIEF, CONTINUING RULE TO SHOW CAUSE, AND NOTICE TO CERTAIN PARTIES REPRESENTED BY BLAINE T. EDWARDS This matter comes before the Court on a continued hearing on a Rule to Show *480 Cause issued by the Court in each of the above captioned cases based upon a Motion to Disgorge Attorney’s Fees filed pro se by Gary Fred Henderson and Dana L...
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OPINION CONCERNING DETERMINATION PURSUANT TO 28 U.S.C. § 157(b)(3) Barclays PLC, Barclays Bank PLC, Barclays Capital Inc., Barclays Capital Securities Limited, Barclays Physical Trading Limited and Barclays Metals Limited (collectively “Barclays”) filed in this adversary proceeding (the “Adversary Proceeding”) a Motion for Initial Determination under 28 U.S.C. § 157(b)(3) 1 tha...
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OPINION This matter is before the Court for decision after trial on the adversary complaint of Richard E. Barber, as Chapter 7 Trustee (“TRUSTEE”) for the Debtors, Robert and Jolene Johnson, (“DEBTORS”), against First Midwest Bank (“BANK”), to recover monies remaining in an Interest Reserve Account after foreclosure of a failed construction loan. On March 15, 2003, Robert Johnson...
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MEMORANDUM OPINION This adversary comes before the Court on the Motion for Summary Judgment filed by Robert Pummill, Chapter 7 Trustee (“Trustee”), against John F. McGivern, et al. (“Defendants”), on Counts I, TV, V and VI and a Motion for Summary Judgment filed by Defendants against Plaintiff on Counts I, II, III, IV, V, VI and VII. The Plaintiff informed the Court at the hearing tha...
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*862MEMORANDUM OPINION This is an action to determine the dis-chargeability of a $71,789.78 loan made by the plaintiff, Manouchehr Soheily, to the debtor, Tai T. Vuong, that Mr. Soheily asserts was procured by false pretenses, false representations, or actual fraud. A trial, at which each of the parties represented himself pro se, was held on September 29, 2006. Based on the evidence and the appl...
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MEMORANDUM This adversary proceeding is before the court on a complaint by the plaintiff, Ar-men Joel Demerdjian, to determine the dischargeability of a debt allegedly owed to him by the defendant, Christian Deven Thompson, arising out of the plaintiffs purchase of a massage school business from the defendant. The issues for decision are (1) whether the defendant owes a debt to the pl...
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MEMORANDUM-OPINION This matter came before the Court for trial on the Complaint to Recover Property of the Estate of Plaintiff Mark Flener, Trustee for Vencom, Inc. (“Trustee”) against Defendants Darlene Turner, Christine Morgan and Robert L. Turner. The Court considered the testimony and evidence submitted at trial, the arguments of counsel and the post-trial briefs of the parties. F...
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MEMORANDUM OPINION In this adversary proceeding, Plaintiff Roxanne Janette Poe (“Debtor”) seeks a determination, pursuant to 11 U.S.C. § 523(a)(8), that her student loan debt, owed to Defendant Educational Credit Management Corporation (“ECMC” or “Defendant”) should be discharged for the reason that accepting the debts from discharge would impose upon her an undue hardship. This is a core pro...
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DECISION PRELIMINARY STATEMENT All plaintiffs in the above-entitled adversary proceedings are chapter 13 debtor-mortgagors. They assert that their respective defendant-mortgagees were paid “interest on interest” through their respective chapter 13 plans in violation of 11 U.S.C. § 1322(e). 1 Sec. 1322(e) was added to the Bankruptcy Code by the Bankruptcy Reform Act of ...
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DECISION & ORDER BACKGROUND On March 14, 2005, David R. Green (the “Debtor”) filed a petition initiating a Chapter 11 case. On the Schedules and Statements required to be filed by Section 521 and Rule 1007, the Debtor indicated that he was indebted to ESL Federal Credit Union (“ESL”) on a Home Equity Line of Credit Agreement (the “ESL Note”) in the amount of $194,996.00, which was secured by a ...
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DECISION ON RIGHT TO OFFSET Delta Air Lines, Inc. (“Delta” or the “Debtor”) commenced this adversary proceeding for declaratory judgment that the Government Services Administration (the “Government”) is precluded from deducting amounts the Government “overpaid” to Delta for services purchased pre-petition from amounts which the Government owes to Delta for services purchased post-peti...
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MEMORANDUM AND ORDER DENYING TRUSTEE’S OBJECTION TO HOMESTEAD PURSUANT TO 11 U.S.C. § 522(g)(4) 1 The matter before the Court is the Trustee’s Objection to Homestead Exemption pursuant to 11 U.S.C. § 522(o)(4). 2 The Trustee, Carl B. Davis, appears by Carl B. Davis. The Debtors, Gerald L. Agnew and Jill C. Agnew, appear by Dennis E. Shay. There are no other appearances....
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MEMORANDUM OF DECISION The objection of the California Self-Insurers’ Security Fund (Fund) to Debtor’s plan confirmation was heard before me on August 29, 2006. Mr. Louis Cisz of Thelen Reid & Priest appeared for the Fund and Mr. David Poitras of Jeffer, Mangels, Butler & Marmaro appeared for the Debtor, Lorber Industries of California. Upon consideration of the evidence and the briefs an...
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ORDER DENYING DEFENDANTS, JEFFREY W. LEASURE, LEAS-URE & HEIDKAMP, P.A., THOMAS S. HEIDKAMP, HENRY ANDREASEN, and THOMAS GRA-BOWSKI’S MOTION FOR RULE 9011 SANCTIONS AGAINST CARLA MICHELLE-LYNNE GREW THE MATTER under consideration in the above-captioned adversary proceeding is Defendants, Jeffrey W. Leasure, Leas-ure & Heidkamp, P.A., Thomas S. Heid- *908 kamp, Henry Andre...
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MEMORANDUM DECISION This Adversary Proceeding is before the Court upon the Motion for Summary Judgment filed by the Defendants, DeLong, Caldwell, Novotny & Bridgers, LLC, and Earnest H. DeLong, Jr., (hereinafter “Defendants”). The Plaintiff, the bankruptcy Trustee J. Lester Alexander, III (hereinafter “Trustee”) filed an opposition to the summary judgment motion. (Doc. 156)...
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OPINION INTRODUCTION Prepetition, the chapter 13 1 debtor had obtained a “payday” loan for $345, and he did not repay it. In his bankruptcy case, the trustee filed a creditor’s proof of claim for the loan, objected to the claim, and counterclaimed for damages and attorney’s fees due to the creditor’s alleged violations of the federal Truth in Lending Act (“TILA”) a...
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OPINION INTRODUCTION The chapter 7 1 trustee has appealed the bankruptcy court’s order of removal, which found that she was not disinterested due to a material conflict of interest. She contends that the bankruptcy court applied an incorrect legal standard under § 324, and challenges the court’s findings. We hold that the bankruptcy court properly applied a to...
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MEMORANDUM OPINION on “Motion to Dismiss Amended Adversary Proceeding Against Sheila Hamilton and Jonathan Kennett for Lack of Personal Jurisdiction, Forum Non Conveniens and Failure to State a Claim Pursuant to Rule 7012(b) of the Federal Rules of Bankruptcy Procedure” Pursuant to Federal Rule of Bankruptcy Procedure 7012(b) and Federal Rule of Civil Procedure 12(b)(2) and (b)(6), two ci...
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MEMORANDUM OPINION I. INTRODUCTION Before this court is the Adversary Complaint Objecting to Debtor’s Discharge (the “Complaint”) brought by the United States Trustee (the “Plaintiff’ or “U.S. Trustee”) and Defendant’s Original Answer (the “Answer”) filed by James Randell Hughes (the “Defendant” or “Debtor” or “Mr. Hughes”). This court has jurisdiction of this matter...
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*12 MEMORANDUM-OPINION This matter came before the Court for trial on the Complaint Objecting to Discharge of Plaintiff Donald Ray Watkins (“Watkins”) against Defendant/Debtor Juanita Lynn Watkins (“Debtor”). The Court considered the evidence and testimony submitted at trial and the arguments of counsel. For the following reasons, the Court will enter judgment in favor of the Debtor. The fo...
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*786 MEMORANDUM Hearing was held in Lincoln, Nebraska, on September 27,2006, on Debtors’ motions to avoid liens (Fil. # 24 in Case No. BK05^5650 and Fil. #20 in Case No. BK05-45652) and resistances by Community Action Partnership of Mid-Nebraska (Fü. # 25 in Case No. BK05-45650 and Fil. #21 in Case No. BK05-45652) and Min-den Lumber & Concrete Co., Inc. (Fil. #26 in Case No. ...
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ORDER On this day the United States Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. 707(b)(1) Based on Presumption of Abuse Arising Under 11 U.S.C. 707(b)(2) with Authority in Support, and Objection to Motion to Dismiss and Brief, filed by the Debtors, came before this Court for consideration. The Parties submitted a Stipulation in Lieu of Evidentiary Hearing and filed additional su...
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MEMORANDUM OPINION REGARDING THE DEBTOR’S MOTION TO REINSTATE THE AUTOMATIC STAY The matter before the Court is the above captioned debtor’s Motion to Reinstate Automatic Stay. For the reasons set forth more fully below, the Court will enter an order which denies the relief requested by the debtor. I. Background On April 19, 2006 this Court entered an Order Granting Conditional Relief F...
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OPINION Gregory and Rose Marie Anderson (“Debtors”) filed a petition for relief under Chapter 7 of the Bankruptcy Code 1 on May 24, 2004. The Chapter 7 Trustee thereafter commenced the above-captioned adversary proceeding against David A. Anderson and David Allen Anderson (“De *455 fendants”). The adversary proceeding arose because of hunting property located i...
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MEMORANDUM OPINION On October 14, 2005, John W. Fritschen (“Debtor”) filed a voluntary petition for relief under the provisions of Chapter 7 of the United States Bankruptcy Code. Elizabeth Fritschen (“Plaintiff’), the Debtor’s former spouse, filed her complaint on December 29, 2005. In her complaint, the Plaintiff seeks a denial of the Debtor’s discharge because of inaccurate and inco...
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*833 MEMORANDUM OF DECISION This matter comes before the Court on Debtor Robert D. Wilson’s Motion to Set Aside Order to Remove Automatic Stay and Disallow Reclamation and Sale of One Vehicle. Docket No. 38. The Court conducted a hearing and has considered the motion, briefs and affidavits filed by the parties, as well as their arguments. This Memorandum disposes of the motion. Fed. R. Bankr....
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ORDER On February 22, 2006, Gill and Katie Bonnett filed a voluntary petition for relief under the provisions of Chapter 13 of the United States Bankruptcy Code. On June 1, 2006, the Trustee timely filed an objection to a claim of $2,282.32 filed by the Crossett Paper Mills Employees Federal Credit Union (Credit Union). The Trustee only objected to the secured status of the claim, not...
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MEMORANDUM OPINION This matter comes before the Court on the objection of Robert McCoy (the “Debt- or”) to Claim Nos. 8 and 9 filed by Mutual Bank and Claim No. 10 filed by Mary E. Dik. For the reasons set forth herein, the Court overrules and denies, in part, the Debtor’s objection to these claims. Claim Nos. 8 and 9 of Mutual Bank are duplicate claims, and thus, Claim No. 9 is hereb...
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MEMORANDUM OF DECISION I. Introduction The matter before the Court is the motion of International Strategies Group, Ltd. (“ISG”) for summary judgment filed in the above-captioned adversary proceeding in which ISG objects to the discharge of an alleged debt owed by James Frederick Pomeroy, II (“Pomeroy”) under 11 U.S.C. § 523(a)(2)(A). ISG contends that it is entitled to judgm...
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MEMORANDUM OPINION This matter is before the Court upon motions to dismiss and/or motions for summary judgment filed by various defendants in the relevant adversary cases. The issue before the Court in these adversary cases is whether the Plan of Reorganization and other “plan documents” adequately preserved certain preference causes of action and certain “insider” causes of action, thus ...
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MEMORANDUM OF DECISION Introduction This adversary proceeding is before the Court on remand after an appeal. In or *914 der to comply with the Ninth Circuit’s instructions that further proceedings be conducted consistent with its opinion, the Court issues this decision. Procedural History On January 7, 2004, after trial on the matter, this Court entered a Memorandum Decision finding and...
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MEMORANDUM OPINION REGARDING MOTION OF BUSINESS LOAN CENTER, INC., FOR PARTIAL SUMMARY JUDGMENT On this date came on to be considered the Motion for Summary Judgment filed on behalf of the Defendant, Business Loan Center, Inc., (“BLC”) in the above styled and numbered adversary proceeding (the *891 “Motion”), along with the Response thereto, 1 filed on behalf o...
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Memorandum of Decision The matter before the court is the Motion to Dismiss Case filed by Finance Maryland, LLC (“Movant”) and the Debtor’s opposition thereto. The court held a hearing on the Motion to Dismiss on July 11, 2006, and has reviewed the supplemental memoranda filed by each of the parties. The court finds that a further hearing would not aid in the decisional process. For t...
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OPINION AND ORDER This dispute began pre-petition and was removed to this Court from State Court. On April 22, 2004, this Court conducted a trial regarding the Defendant/Debtor’s counterclaim against the Plaintiff. The *45Chapter 7 Trustee had separately settled the Chapter 7 Estate’s claim against the Plaintiff and the Plaintiffs claims against the Debtor. This is likely to be a “surplus money”...
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CORRECTED MEMORANDUM OF DECISION ON XO’ S MOTION FOR PAYMENT OF ADMINISTRATIVE EXPENSES OR XO’S CLAIMED CASH AND RELATED DISPUTES PERTAINING TO ASSET PURCHASE AGREEMENT Allegiance Telecom, Inc. (“Allegiance”) and certain direct and indirect subsidiaries primarily operated a facilities-based national local exchange telecommunications business. They commenced chapter 11 cases in this Co...
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MEMORANDUM DECISION INTRODUCTION John J. Greenwood (“Greenwood” or “Debtor”) is a married, mental health social worker with two children whose family’s living expenses exceed his and his wife’s income. He has no college degree and no realistic prospect of significant advancement in his employment or finding a better paying line of work. Until his children were born, he made regul...
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DECISION & ORDER BACKGROUND On May 18, 2006, Kathleen M. Nersinger (the “Debtor”) filed a petition initiating a Chapter 7 case. On the Schedules and Statements required to be filed by Section 521 and Rule 1007, the Debtor: (1) indicated that she was the owner of real property that was her residence, located at 698 Car-dile Drive, Webster, New York (the “Car-dile Drive Property”); (2) indicated ...
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MEMORANDUM OPINION The Court has before it the Defendants’ motion to dismiss the remaining counts of the Plaintiffs second amended complaint and the Plaintiffs objection thereto and the Plaintiffs motion to amend the complaint and the Defendants’ objection thereto. The Court has heard the arguments of counsel on both matters and has taken them under advisement. Jurisdiction This Court has juri...
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MEMORANDUM OPINION GE Money Bank brings the instant adversary action against Frederick LaBo-vick, the instant debtor (hereafter “the Debtor”), so as to have its pre-petition *511 claim for $9,127.00 worth of pre-petition credit card charges by the Debtor declared nondisehargeable pursuant to 11 U.S.C. § 523(a)(2)(A) & (C). After notice and a trial on the matter...
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MEMORANDUM AND NOW, this 13th day of November, 2006, upon consideration of the adversary complaint filed by Steven and Patricia Taylor (hereafter “the Taylors”), wherein they seek (a) to have their $12,500 pre-petition claim against Darrell DeFalco, the instant debtor (hereafter “the Debtor”), declared nondischargeable pursuant to 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(4), and (b) an award of r...
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MEMORANDUM OPINION When Tijuana Plascencia (then known as Tijuana Robinson) purchased a house in 1998 constructed by the charitable organization Loudoun Habitat for Humanity (“Loudoun Habitat”), a “deed of right to repurchase” was recorded giving Habitat the right for 20 years to repurchase the property at the original sales price plus a modest annual increase for appreciation. Ms. Plasce...
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MEMORANDUM OF DECISION This matter came before the Court upon hearing of the Chapter 13 Plan filed by the Debtor, Brittany Kaye Wayman, and the objection thereto filed by Ronald E. Stadt-mueller, Standing Chapter 13 Trustee (the “Trustee”), in the abové-referenced case. The Trustee objected to the confirmation of the plan on the grounds that, among other deficiencies, the Debtor is no...
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ORDER APPROVING TRUSTEE’S MOTION FOR DISTRIBUTION OF TRUST ASSETS (Docket No. 1071) On this day came on for consideration the Motion to Approve Procedures for Distribution of Trust Assets (the “Distribution Motion”) filed by Michael G. Lawrence, Liquidating Trustee for the INSpire Creditors Trust (the “Trustee”). The Court has entered separate Findings of Fact and Conclusions of Law {“Findings”) ...
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ORDER RE: COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT This matter came before the undersigned for trial on Octoberll, 2006. Plaintiff Lisa Ahlf was represented by attorney Bruce Buckrop. Debtor/Defendant Jonathon Ahlf was represented by attorney David Millage. After the presentation of evidence and argument, the Court took the matter under advisement. This is a core proceeding pursuant to 2...
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ORDER RE: COMPLAINT TO REVOIÍE DISCHARGE This matter came before the undersigned on October 4, 2006. Assistant U.S. Trustee Janet G. Reasoner appeared on behalf of Plaintiff, U.S. Trustee Habbo G. Fokkena. Debtor Keel A. Peterson appeared in person with his attorney Peter C. Riley. After the presentation of evidence and argument, the Court took the matter under advisement. The time for filing b...
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ORDER RE: COMPLAINT This matter came before the undersigned for trial on October 12, 2006. Debtors/Plaintiffs Patrick and Cerina Wade were represented by attorney Thomas Fiegen. Defendant Solon State Bank was represented by attorneys Ray Terpstra and Natalie Ditmars. After the presentation of evidence and argument, the Court took the matter under advisement. The time for filing briefs has...
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MEMORANDUM OF DECISION Now before the Court in the above-referenced adversary proceeding is “Defendant City National Bank’s Motion for Partial Summary Judgment as to Plaintiffs’ RICO Claims” (the “Motion”) filed on October 25, 2005. Upon due consideration of the Motion, the response in opposition filed jointly by the Plaintiffs, Robert G. Richardson, Trustee for the liquidation of Sun...
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MEMORANDUM OPINION Wells Fargo Financial Leasing, Inc. (‘Wells Fargo”), seeks to compel disbursement of about $209,900 in auction proceeds related to the sale of a leased commercial building and three items of equipment. Branch Banking & Trust Company (“BB & T”) opposes the motion asserting that the amount due to Wells Fargo is far less than $209,900 on two grounds: (1) the...
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*498 MEMORANDUM This adversary proceeding is before the court upon the Complaint Objecting to Discharge of the Debtor, to Determine the Dischargeability of a Debt, and for Damages (Complaint) filed by the Plaintiffs on October 27, 2005, asking the court to (1) deny the Debtor’s discharge under 11 U.S.C.A. § 727(a)(2), (3), (4)(A), (4)(D), and (5) (West 2004); (2) determine th...
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DECISION & ORDER At Roanoke in said District this 16th day of November, 2006: Before the Court is the United States Trustee’s (herein “Trustee”) Motion to Dismiss the Chapter 7 petition of the above-styled debtors (herein “Smiths”) for substantial abuse of the provisions of Chapter 7 of Title 11 of the United States Code (the “Bankruptcy Code”). The matter was heard on September 12, ...
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MEMORANDUM OF DECISION INTRODUCTION Marion Jay VanSchoiack (“Jay”) and Lynette Lynae VanSchoiack (“Lynette”) (together “Debtors”) filed a voluntary chapter 7 petition on May 24, 2005. See Ex. 1. Lois Murphy (“Trustee”) was appointed as the chapter 7 trustee. On July 18, 2005, Trustee, acting pro se, timely filed this adversary proceeding generally alleging ...
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Dear Counsel: The matter before the Court is the Section 506(b) Motion for Allowance of Prepayment Charge filed by First Dakota National Bank. This is a core proceeding under 28 U.S.C. § 157(b)(2). This letter decision and accompanying order shall *915 constitute the Court’s findings and conclusions under Fed.Rs.Bankr.P. 7052 and 9014(c). As discussed below, First D...
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MEMORANDUM OPINION The life of the bankrupt debtor is not an easy one. Almost by definition, one who seeks the protection of this Court does so in the face of a financial crisis. Oftentimes the bankruptcy system is the last, best, and only hope for such a debtor. When a debtor hires counsel to assist him or her, the debtor has the right (as does any client) to expect undivided loyalty. In addit...
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MEMORANDUM OPINION Now before the Court is the Complaint to set aside fraudulent transfers and the Complaint Objecting to Discharge filed by Fletcher Long, Jr., on behalf of St. Francis County Farmers Association (the “Creditor” or “St. Francis County”). 1 The Complaint to set aside fraudulent transfers was filed against Jerry and Audrey Wright (parents of Debtor Jay Wright) and Wrigh...
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MEMORANDUM OPINION Before the court for ruling is the amended motion of debtor International Zinc Coatings & Chemical Corporation (“Zinc”) to dismiss its own chapter 7 case. The original motion was filed within days of the bankruptcy’s commencement last February, but a decision was delayed by the heated battle that arose over whether the motion should be granted. That battle has ...
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MEMORANDUM OPINION The chapter 7 trustee seeks to avoid as preferences under 11 U.S.C. § 547(b) 1 debtor’s payments to defendant IPHFHA for past due insurance premiums totaling $46,563.91. Defendant stipulated at trial that all elements of a preference have been established but asserts the ordinary course of business defense set forth in § 547(c)(2) and the new value defens...
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Memorandum Opinion Before the court is Debtors’ Objection to Claim (the “Objection”) of Wachovia Bank National Association as Trustee of the Security National Mortgage Loan Trust 2004-1 (“Wachovia”) and Wachovia’s Motion to Allow Claim (“Wachovia’s Motion”). Both pleadings present the same issue, ie., what is the amount necessary to cure the Debtor’s default to Wachovia for...
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Memorandum Opinion Before the Court is the Motion of the United States Trustee (“UST”) for Disgorgement of Fees by Debtor’s Counsel (the “Motion”). A hearing was held on October 3, 2006 at which argument was presented. The facts are not disputed and can be gleaned from the docket, pleadings and record in this case. 1 For the reasons that follow, the Motion shall be granted....
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DECISION This matter comes before the Court on the Court’s order directing Doris Ginsberg (the “Debtor”) to show cause why her case should not be dismissed for failure to comply with the credit counseling requirement imposed by Section 109(h)(1) of the Bankruptcy Code (the “credit counseling requirement”). 1 For the reasons set forth below, the Debtor’s case is dismissed. ...
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ORDER GRANTING SUSAN LUND-BORG’S MOTION TO STRIKE THE MOTION FOR RELIEF FROM AUGUST 29, 2005 ORDER APPROVING RESOLUTION OF TRUSTEE’S OBJECTION TO CLAIM NO. 5 OF SUSAN LUNDBORG (C.P. 1145) PURSUANT TO RULE 60(b), FED. R.CIV. P. THIS MATTER came before the Court for hearing on August 8, 2006. On June *864 16, 2006, Gary J. Rotella, P.A., as Assignee of Ferrell Law’s Summary...
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*65 MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S RECUSAL MOTION The plaintiff in this adversary has, by letter dated October 10, 2006 (the “Recusal Letter” (ECF Doc. # 108)), requested that I recuse myself. She plans to call one of my wife’s law partners to testify in her rebuttal case, and contends that this creates an appearance of impropriety and the risk of bias. I disag...
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DECISION (Re: Motion to Dismiss for Lack of Credit Counseling) Before the Court are four related matters: (A) a motion to dismiss that was filed by the Chapter 13 Trustee on September 28, 2006 (the “Trustee’s Motion”); (B) a hearing to consider whether the Debtor’s proposed Chapter 13 plan should be confirmed (the “Confirmation hearing”); (C) a motion by CitiMortgage, Inc., the secured credit...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Under consideration by the Court is confirmation of the Chapter 13 Plan, originally filed on October 27, 2005, by Jeffrey L. Williams (“Debtor”) and subsequently amended on March 7, 2006. On March 7, 2006, an objection was filed by the chapter 13 trustee, Mark W. Swimelar, Esq. (“Trustee”) concerning the feasibility of th...
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ORDER DENYING FORD MOTOR CREDIT COMPANY’S REQUEST FOR HEARING TO REVIEW REAFFIRMATION AGREEMENT This case came before the Court upon Ford Motor Credit Company’s (“Movant”) Request for Hearing to Review Reaffirmation Agreement (“Request for Hearing”). Debtors filed for relief under Chapter 7 of the Bankruptcy Code on July 18, 2006. Shortly thereafter, Debtors and Movant executed two reaffirmat...
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ORDER DISMISSING CHAPTER 13 CASE FOR BAD FAITH THIS MATTER came for evidentiary hearing before the Court on September 19, 2006 upon Creditor, Torrent Acquisition Company LLC, Amended Objection to Confirmation and Motion to Dismiss Bankruptcy Case. (C.P.48) The Court having reviewed the Motion, the Court file, heard argument of counsel, considered the evidence, and being otherwise duly advised...
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MEMORANDUM DECISION (Re: Defendants’ Motion to Vacate Order Granting Summary Judgment) Before the Court is the Defendants’ motion to vacate and reconsider the Order and Judgment, entered on June 24, 2002 (the “Order”), which granted summary judgment in favor of the Plaintiff-Debtor. For the reasons that follow, the Court grants the Defendants’ motion to vacate and reconsider the Order but...
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MEMORANDUM ORDER GRANTING IN PART AND DENYING IN PART SUSAN LUNDBORG’S MOTION TO (1) QUASH SUBPOENA AND ENTER PROTECTIVE ORDER, AND FOR CONTEMPT AND SANCTIONS AGAINST DEBTOR AND HIS COUNSEL FOR VIOLATION OF THE MEDIATION ORDER; (2) DISMISS ALL SANCTIONS MOTIONS OF DEBTOR AND HIS COUNSEL AGAINST HER; AND (3) ENLARGE HER TIME TO COMPLETE THE RECORD AND ISSUES WITH RESPECT TO APPEALS AFFECTED BY...
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MEMORANDUM DECISION REGARDING THE PRECLUSION OF EXPERT REPORTS AND OTHER DISCOVERY ISSUES The plaintiff commenced this adversary proceeding against Alex Mandl primarily to recover a constructive fraudulent transfer. This opinion resolves certain disputes between the parties concerning the recent production of three additional expert reports, the use of documents that the plaintiff acquire...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the “Amended Motion of the Debtor to Avoid Judicial Liens” (the “Lien Avoidance Motion”) filed by the Chapter 7 debtor, William F. Tinker(the “Debtor”). Pursuant to the Lien Avoidance Motion, the Debtor seeks to avoid the judicial liens of Granite City Electric Supply Company (“Granite City”) and G. Greene Construction Co., In...
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MEMORANDUM OPINION 1 Before the Court is the Motion of the ORC Distribution Trust (the “Trust”) for determination that there is no just reason for delay in entry of final judgment on Counts I and IV of the Complaint filed by Fluor Enterprises, Inc. (“Fluor”) against Orion Refining Corporation. For the reasons set forth below, the Court will deny the Trust’s Motion. 1. ...
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OPINION 1 Before the Court are the joint Motions of Stephen G. Dent (“Dent”) and Dent and Company, Inc., (collectively, the “Defendants”) for partial dismissal of the complaints against them and for an extension of time to answer the remainder of the amended complaints and the Motion of Jeoffrey L. Burtch, the chapter 7 trustee (the “Trustee”), for consolidation of the adve...
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DECISION AND ORDER This cause is before the Court on the Debtor’s objection to B-Line, LLC’s proof of claim. The sole remaining issue on the objection is the Debtor’s request for sanctions. On their respective positions, both Parties filed supporting memoranda. The Court has now had the opportunity to consider the arguments raised by the Parties, and finds, for the reasons that will now f...
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MEMORANDUM OF OPINION On June 13, 2006, the plaintiff Chapter 7 trustee filed an adversary complaint against the debtor-defendant Shawn Freeman to revoke and deny the debtor’s discharge pursuant to 11 U.S.C. § 727(a)(6) and (d)(3). On July 3, 2006, the defendant filed a pro se answer to the complaint (Docket # 6), and on August 16, 2006, the plaintiff filed a motion for summary...
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MEMORANDUM OF OPINION On June 22, 2006, the plaintiff Chapter 7 trustee filed an adversary complaint against the debtor-defendant Chelsea E. Skiljan to revoke and deny the debtor’s discharge pursuant to 11 U.S.C. § 727(a)(6) and (d)(3). On July 17, 2006, the defendant filed an answer to the complaint (Docket #6), and on October 5, 2006, the plaintiff filed a motion for summary judgment (D...
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MEMORANDUM OPINION FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING CHAPTER IS CRAMDOWN OF AUTOMOBILE LENDER In this chapter 13 bankruptcy case, Sylvia Solis (“Debtor”) has proposed a *402 debt repayment plan that would satisfy liens on two motor vehicles by paying the value of the vehicles rather than paying the full principal due, ie. “cramdown” of the vehi...
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ORDER REGARDING VALUATION 1 Debtors filed their voluntary Chapter 13 petition and Chapter 13 Plan on April 11, 2006. Among the property listed in their schedules and included in their plan was a 2003 Dodge Durango (“Durango”) and a 2000 Chrysler Sebring (“Sebring”). Both of these vehicles were subject to liens of Tinker Federal Credit Union (“TFCU”). Debtors’ original plan listed TFCU’s c...
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MEMORANDUM OPINION This matter comes before the court on the motion of Ford Motor Credit Company to dismiss the adversary complaint filed by Gwendolyn Ealy. Ealy seeks to recover $2,732.72 garnished from her wages and paid to Ford. In response to the motion to dismiss, Ealy sought leave to file an amended complaint. Ealy’s proposed amendments do not change the court’s decision on the...
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MEMORANDUM I. INTRODUCTION The matters before the Court are Counts VII and VIII with respect the Complaint filed by Lynne F. Riley, Chapter 7 Trustee of the Estate of Jane A. Tougas, the Debtor. Through these Counts, the Trustee seeks denial of the Debtor’s discharge pursuant to 11 U.S.C. § 727(a)(3) and (a)(6), for the Debtor’s alleged refusal and failure to produce documents pu...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW The Court conducted the trial in this adversary proceeding on August 9, 2006. The plaintiff was represented at trial by Jeffrey W. Guettinger, while the defendants were represented by Erwin H. Steiner. At trial, the plaintiff stipulated to the dismissal of its claims under 11 U.S.C. § 727(a). After the close of the plaintiff...
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ORDER Before the Court is the Trustee’s Motion for Turnover of Unscheduled Assets, filed *852 on January 13, 2006, Trustee’s Amended Motion for Turnover of Unscheduled Assets, filed on February 8, 2006, and Trustee’s Objection to Debtors’ Amended Exemptions and Motion for Turnover of Property filed on July 19, 2006. The Court held a hearing on the motions on September 28, 200...
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MEMORANDUM OPINION On August 28, 2006, this court heard the Motion for Summary Judgment (the “Mo*395tion ”) filed by Blumberg & Bagley, L.L.P. (“B & B”). The court heard arguments from counsel for B & B, counsel for Dianne Reed, Chapter 7 Trustee (the “Trustee”), and counsel for Dale Rabe (“Rabe,” and together with B & B, the “Defendants”). The court exercises core jurisdiction over this matter...
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ORDER OVERRULING DAIMLER-CHRYSLER’S OBJECTION TO DEBTORS’ CHAPTER IS PLAN This matter came before the Court on DaimlerChrysler Financial Services Americas, L.L.C.’s, as successor in interest to DaimlerChrysler Services North America L.L.C., (“Daimler”) Objection to Confirmation of Debtors Ronald L. Feddersen and Karen L. Feddersen’s (“Debtors”) Chapter 13 plan (the “Plan”). The Court conducte...
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David P. Nelson (“Debtor”) appeals the bankruptcy court’s order and judgment excepting from discharge his obligation to Jack Lindau (“Creditor”) pursuant to 11 U.S.C. § 523(a)(2)(A). We have jurisdiction over this appeal from the final order of the bankruptcy court. See 28 U.S.C. § 158(b). For the reasons set forth below, we reverse. ISSUE The issue on appeal is whether the court erred in f...
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*874 MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT This matter came before the Court on the Plaintiffs Motion for Partial Summary Judgment on Count II of the Amended Adversary Complaint and Incorporated Memorandum of Law (CP # 31) filed by the Plaintiff, Barry Mukamal. The Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ ...
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Opinion Introduction Before the Court are a number of motions related to Plaintiffs Complaint for Declaratory Relief. That Complaint seeks a determination that the real estate listed in his Bankruptcy Schedule A is his property.1 Defendant disputes that claim and has filed a Motion for Summary Judgment. After Plaintiff filed a reply to that motion, Defendant amended it to add a request for dism...
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MEMORANDUM DECISION INTRODUCTION MCA Financial Group, Ltd., as Trustee for the Fourthstage Technologies, Inc. Liquidating Trust (“Trustee”), sued Hew *157 lett-Packard (“HP”) to recover payments made by Fourthstage Technologies, Inc. (“Fourthstage” or “Debtor”) to HP in 2001, pursuant to a settlement agreement. The Trustee seeks to set aside the payments as avoidable preferences under 11 ...
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MEMORANDUM DECISION Chapter 7 trustee, Richard M. Kipper-man, (the “trustee”), filed this adversary proceeding against Sondra S. Sutherland (“Sutherland”) asserting claims for relief under § 544(a)(1), (2), and (3), § 545(2), and § 547(b).1 Sutherland moved for summary judgment contending 1) that her charging lien was valid and attached to the proceeds from the sale of debtor’s real property; and...
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356 B.R. 450 (2006) In re Denise Irene PATCH, Debtor. Bryan Blocker, Trustee for the Heirs and Next-of-Kin of Dillon Bryan Blocker, Plaintiff-Appellee, v. Denise Irene Patch, Defendant-Appellant. No. 06-6033MN. United States Bankruptcy Appellate Panel for the Eighth Circuit. Submitted: September 13, 2006. Filed: November 27, 2006. *451 *452 *453 Richard W. Hechter, Thill Law Firm, PA, St. Louis P...
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MEMORANDUM OF OPINION Introduction This is an adversary proceeding brought by Buchwald Capital Advisors LLC, Trustee of the Pameco Corporation, et al., Liquidating Trust (“Plaintiff’), against MetlSpan I., Ltd. (“Defendant”) seeking the avoidance and recovery, pursuant to Bankruptcy Code §§ 547-550, of a transfer made by Pameco Corporation (the “Debt- or”) to Defendant. Plaintiff and Defendant ha...
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MEMORANDUM OPINION Charles Zebley, the Chapter 7 Trustee for the instant debtor (hereafter “the Trustee”), objects to the exemption of residential realty by such debtor, David Allen Davis (hereafter “the Debtor”). The Court shall overrule such exemption objection. STATEMENT OF FACTS The Debtor has exempted realty that, as of the date that he filed for bankruptcy (i.e., J...
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MEMORANDUM OF DECISION Pending in this Chapter 13 bankruptcy is confirmation of Debtors’ Chapter 13 Plan and the Trustee’s objections thereto based upon the “disposable income” test of 11 U.S.C. § 1325(b)(1)(B) and, by reference, 11 U.S.C. § 707(b)(2)(A)(ii). The Trustee objects that Debtors’ transportation expenses exceed the Standards issued by the United States Internal Revenue Ser...
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Memorandum Decision on Objections to Confirmation of the Debtors’ Chapter 13 Plans The issue in these chapter 13 cases is whether the surrender of a car to a secured creditor satisfies the creditor’s claim in full, precluding the creditor from asserting a deficiency claim. The controversy arises under an unnumbered paragraph in 11 U.S.C. § 1325(a) enacted as part of the Bankruptcy Abuse P...
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MEMORANDUM OPINION I. INTRODUCTION In this chapter 13 bankruptcy case, the holder of the mortgage on the Debtor’s residential real estate filed a proof of claim asserting the existence of a prepetition delinquency of $18,102.58 on the mortgage. The Debtor objects to certain components of the lender’s claim for prepetition arrears. Specifically, the Debtor challenges the l...
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DECISION AND ORDER In this motion, a creditor seeks reconsideration of an order which avoided the lien of her judgment as against the homestead of the debtors. The central issue is not the outcome upon reconsideration, but whether reconsideration is appropriate under Bankruptcy Rule 9024 and Rule 60 of the Federal Rules of Civil Procedure. On June 28, 1996, Gail Ann Wiatr obtained a judgment ...
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OPINION Mystic Tank Lines Corp. (“the Debtor”) seeks expunction of a claim held by TMW *696 Systems, Inc. (“TMW”) arising out of a software license agreement. The Debtor asserts that it was not afforded the opportunity to inspect and evaluate the software pursuant to Article Two of the Uniform Commercial Code (“U.C.C.”) and, alternatively, that the Debtor properly revoked...
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MEMORANDUM OPINION The Debtor, Buffalo Molded Plastics, Inc. d/b/a Andover Industries (“Buffalo Molded”) filed the within adversary against Defendants Comerica Bank (“Com-erica”) and Plastic Mold Technology, Inc. (“PMT”) seeking an order distributing certain, escrowed funds held by its counsel as a result of prior court Order. Currently before the Court is the Joint Motion for S...
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OPINION SUSTAINING CREDITOR’S OBJECTION TO CONFIRMATION OF DEBTORS’ CHAPTER 13 PLAN I. Introduction This opinion involves the interpretation and application of the so called “hanging paragraph” that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) added to the end of § 1325(a)(9) of the Bankruptcy Code. The Debtors in this case propose a Chapter 13 plan that pr...
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AMENDED ORDER Comes now the Court, sua sponte, pursuant to Federal Rule of Bankruptcy Procedure 9024 and issues this corrected Order as a substitute for the Order entered in error on October 23, 2006. On June 27, 2005, Rodney Cameron Beene and Jacquelyn Suzanne Beene (“Debtors”) filed a voluntary petition for relief under the provisions of Chapter 7 of the United States Bankruptc...
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MEMORANDUM OPINION AND ORDER Before the Court are two motions for summary judgment. Plaintiff Dennis S. Faulkner, the Chapter 11 trustee of the estate of The Heritage Organization, L.L.C. (“Heritage”), has filed his motion for partial summary judgment (the “Trustee’s Motion”) and Defendant Mikron Industries, Inc. (“Mikron”) has filed its cross-motion for summary judgment (“Mi-kron’s Motio...
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ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW Following trial, all parties having rested, Findings of Fact and Conclusions of Law were made and entered herein on September 7, 2006 (351 B.R. 529 (Bankr.N.D.Ill. 2006)) (“Findings and Conclusions”). It was concluded there that the Trustee will recover judgment against Editorial Com-ercial, Grupo Serla, and Guarneros on Counts I, II,...
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*289 OPINION DENYING PLAINTIFF’S SUMMARY JUDGMENT MOTION This proceeding is before the Court for resolution of the Plaintiffs motion for summary judgment. The Plaintiff appears by counsel Shon D. Qualseth of Thompson Ramsdell & Qualseth, P.A., of Lawrence, Kansas. The Defendant-Debtor appears by counsel Jeffrey L. Willis of Johnson, Kennedy, Dahl & Willis of Wichita, K...
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ORDER DENYING DEBTOR’S CLAIM OF EXEMPTION THE MATTER before the Court concerns the Chapter 7 Trustee’s objection to Debtor’s claim of exemption for her interest in two annuity contracts. The Debtor, Darlene Besser, included in her Schedule C “Property Claimed as Exempt,” (a) a Flexible Premium Deferred Annuity Contract with American Equity Investment Life Insurance Company (the “Ameri...
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ORDER DENYING MOTION FOR DEFAULT JUDGMENT AND DISMISSING COMPLAINT This matter is before the Court on Plaintiffs Motion for Default Judgment (“Motion”) and the Supplemental Affidavit submitted by Plaintiff in support of its Motion. The determination of whether to enter judgment by default is left to the *530discretion of the Court. Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir.1970). Rule 55(b)...
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Memorandum Decision on MBNA’s Objection to Confirmation In In re Guzman, 345 B.R. 640 (2006), this Court reviewed the history of the Chapter 13 disposable income requirement and the changes wrought by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) for debtors whose income exceeds the State median. Guzman held that, pursuant to § 1325(b)(3), the above-median deb...
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MEMORANDUM OF DECISION AND ORDER RESPECTING QUESTION OF WHETHER DISCHARGEABILITY OF INTERNAL REVENUE SERVICE’S PROOF OF CLAIM SHOULD BE BROUGHT BY ADVERSARY PROCEEDING OR CONTESTED MATTER Before the court are (a) the above-referenced debtors’ (the “Debtors”) objection *407 (Doc. I.D. No. 31, the “Objection”) 1 to Claim No. 3 filed by the Internal Revenue Service (the “IRS”) (as amended by...
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DECISION RE PLAN CONFIRMATION Anders and Cynthia Knudsen seek confirmation of their chapter 12 plan. Objections were filed by the United States on behalf of the Internal Revenue Service (hereinafter “IRS”) and by the trustee, *482 Carol F. Dunbar. Hearing on confirmation was held July 12, 2006 in Fort Dodge. Joseph A. Peiffer appeared as attorney for Knudsens. Martin J. McLau...
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356 B.R. 201 (2006) In re Peter Michael KONNOFF and Debra Eva Konnoff, Debtors. Jill H. Ford, Chapter 7 Trustee, Appellant, v. Peter Michael Konnoff; Debra Eva Konnoff, Appellees. BAP No. AZ-06-1139-DKPa, Bankruptcy No. 05-10845-PHX-RJH. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted on October 19, 2006. Filed November 14, 2006. *202 Allison M. Lauritson, Esq....
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MEMORANDUM OPINION THIS CORE PROCEEDING 1 comes before the Court on the complaint of Louisa R. Miles (“Plaintiff’), the above-named Chapter 7 debtor, seeking a finding of contempt by Zebedee Thomas Clarke (“Defendant”) for allegedly violating the discharge injunction, under 11 U.S.C. § 524(a)(2), by attempting to collect a prepetition debt that was discharged in Plaintiffs Chapter 7 bankruptc...
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MEMORANDUM OPINION On October 25, 2006, trial was held on the complaint of LVR Carpet Center, Inc. (“LVR Carpet”) asserting that its claim against Carolyn Ann Coley, the defendant and debtor, should be declared nondis-chargeable under 11 U.S.C. § 523(a)(2)(A), (a)(4), and/or (a)(6). The Court has juris *815 diction over this matter under 28 U.S.C. § 1334(b); this is a core proceeding pursua...
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ORDER This case is before the Court on Trustee’s objection to Chana Rosen’s (the Debtor) claim of exemption of a trust in which she is the beneficiary, (the “Trust”). Because the Trust property is not exempt from attachment or execution under Missouri law, the Court will sustain Trustee’s objection. The facts of the case are undisputed. Debtor’s mother established the Trust in her will date...
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MEMORANDUM OF DECISION Lois I. Brady (the “Trustee”), chapter 7 trustee in the above-captioned bankruptcy case, moves for summary judgment in the above-captioned adversary proceeding, objecting to the amended claim filed by defendant Frank A. Welty, III (“Welty”) on May 5, 2006 (the “Amended Claim”). For the reasons stated below, the Trustee’s motion will be granted, and the Amended ...
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MEMORANDUM OF DECISION In the above-captioned proceeding, plaintiff Patelco Credit Union (“Patelco”) seeks to except from the above-captioned debtor’s (the “Debtor”) chapter 7 discharge pursuant to 11 U.S.C. § 523(a)(2)(A) and (6) the debt arising from two vehicle loans (the “Debt”). The proceeding was tried to the Court on October 11, 2006 and was taken under submission. After considering the ...
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ORDER AND OPINION This matter came before the Court for hearing on November 2, 2006 upon the Bankruptcy Administrator’s Motion for Appointment of a Patient Care Ombudsmen filed on October 24, 2006. At the hearing, William Yaeger appeared on behalf of the Debtor, Stephanie Osborne-Rodgers appeared as Attorney for the Chapter 7 Trustee, and Sarah Bruce appeared for the Bankruptcy Administrator. B...
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DECISION This matter comes before the Court on the motion of Defendant Muriel C. Reisner (“Mrs. Reisner”) seeking summary judgment dismissing this adversary proceeding, which was commenced on January 5, 2005 by Marc A. Pergament (the “Trustee”), the Chapter 7 trustee of the estate of Alan H. Reisner (“Alan”) and Elisa K. Reisner (“Elisa”) (collectively the “Debtors”). The Trustee oppo...
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MEMORANDUM OPINION AND ORDER This adversary proceeding is before the Court following a trial on September 27, 2006, on the Amended Complaint to Determine Dischargeability filed by the Plaintiff, Terry Hosey. Appearing at the trial were: Jason Stoves, attorney for the Plaintiff; Rob Barber for Joshua Watkins, attorney for the Debtor, Fred Hosey; the Plaintiff; and Elmore “Buddy” Moore,...
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MEMORANDUM This adversary proceeding is before the court upon the Complaint to Determine Dischargeability of Debts Owed to Plaintiffs (Complaint) filed by the Plaintiffs (Plaintiff) 1 on May 23, 2006, asking the *663 court to award her a judgment against the Defendant/Debtor and to make a determination that the judgment is nondischargeable under 11 U.S.C. § 523...
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ORDER GRANTING MOTION(S) TO RECONSIDER (doc #24, 25) CORRECTING CLERICAL ERROR IN PRIOR ORDER (doc #21), BUT DECLINING TO CHANGE THE RESULT OF PRIOR ORDER Debtor filed a motion (docket # 24) and an amended motion (docket #25) (collectively referred to as the motion) to reconsider the Court’s order denying imposition of a stay under § 362(c)(4) (docket # 21). The motion to reconsider i...
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MEMORANDUM OPINION AND ORDER The Court tried this adversary proceeding (the “Adversary”) over 8 days, commencing on August 14, 2006 and concluding on September 14, 2006. At the conclusion of the trial, the Court asked the parties to file revised proposed findings of fact and conclusions of law (the “Revised Findings”) in light of the actual evidentiary record made at trial. Due to oth...
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MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This matter came before the Court for hearing on the Plaintiffs Motion for Summary Judgment [# 22] and the Debtor’s Opposition thereto [# 27]. The Plaintiff, a subcontractor who performed work for the Debtor, seeks a declaration that its claim against the Debtor is nondischargeable under 11 U.S.C. § 524 based on a default j...
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MEMORANDUM OF DECISION ON DEBTOR’S MOTION TO AVOID JUDICIAL LIEN AND CREDITOR GREEN VALLEY FARMS, INC. OPPOSITION THERETO This matter came before the Court for a hearing on the Motion of Michael V. Lyons to Avoid Judicial Lien [Docket # 53] and the Opposition of Creditor Green Valley Farms, Inc. thereto [Docket # 60]. For the reasons set forth herein, the Debtor’s Motion to Avoid Judicial Lien ...
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ORDER This Chapter 13 case involves the provision in § 109(e) of the Bankruptcy Code that states that only an individual may be a debtor under Chapter 13. The case came before the Court on September 7, 2006, on the Chapter 13 Trustee’s motion to dismiss. This case was filed on August 1, 2006, under the name of JAC Family Foundation, and the petition was signed by James Allen Causey as...
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ORDER DENYING TRUSTEE’S MOTION TO MODIFY PLAN THIS MATTER is before the Court on Chapter 13 Trustee’s (“Trustee”) Amended Motion to Modify Plan (“Motion”). The Trustee and Merle Krapf and Bonnie Lou Krapf (hereafter “Krapfs” or “Debtors”), by and through counsel, appeared at the hearing on the Motion. This Motion concerns a Workers’ Compensation settlement Merle Krapf received for injuries sust...
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MEMORANDUM OF DECISION ON TRUSTEE’S LIMITED OBJECTION TO CERTAIN EXEMPTIONS CLAIMED BY THE DEBTOR I. Introduction The matter before the Court is the Trustee’s Limited Objection to Certain Exemptions Claimed By the Debtor (the “Objection”). In the Objection, the Trustee first seeks to clarify the extent of the exemption in two entities and to object to the exemption in two additional ...
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ORDER This adversary proceeding is before the Court on Plaintiff Eddie Lou Morris’ motion for partial summary judgment. Plaintiff filed a complaint objecting to the dis- *916 chargeability of a 1994 judgment entered in her favor against Debtor Willie Cunningham by the Superior Court of Fulton County, Georgia, on the grounds that the judgment is nondischargeable under 11 U...
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MEMORANDUM OF DECISION In this adversary proceeding, plaintiff Lois I Brady (the “Trustee”), the duly appointed chapter 7 trustee for the above-captioned bankruptcy case, seeks to avoid a pre-petition transfer to defendant Best-worth-Rommel, Inc. (“Bestworth”) pursuant to 11 U.S.C. § 548(a)(2) and to recover the amount of the transfer from Best-worth pursuant to 11 U.S.C. § 550(a) or (b). Trial w...
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MEMORANDUM OF DECISION This adversary proceeding is before the court on the defendant’s motion for approval of a settlement. The defendant, Jay Steinberg, is the Chapter 7 trustee of debtor Resource Technology Corporation (“RTC”). The plaintiff, Ungaretti & Harris, LLP (“U & H”) was counsel to RTC’s former Chapter 11 trustee, Gregg Szilagyi. U & H asserts in its complaint (1) that it provided ser...
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MEMORANDUM OPINION ON THE DEBTOR’S MOTION (1) TO DISMISS ORIGINAL COMPLAINT TO DECLARE DEBT NON-DIS-CHARGEABLE AND OBJECTION TO DISCHARGE AND (2) TO DISMISS FIRST AMENDED COMPLAINT TO DECLARE DEBT NON-DISCHARGEABLE AND OBJECTION TO DISCHARGE I. INTRODUCTION On April 13, 2006, Gulf Coast Bank and Trust Company (the Plaintiff) filed an Original Complaint to Declare Debt Non-Dischargeab...
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JUDGMENT Based on the Findings of Fact and Conclusions of Law made in the attached Or *195 der of the Court, Johnny Storay’s and Patricia Storay’s (the “Storays”) motion for the disgorgement of attorney’s fees is granted pursuant to §§ 105 and 329. Blaine T. Edwards (“Edwards”) shall disgorge the sum of $1,739.00 to the Storays within ten (10) days from the entry of the Order. Notwithstanding...
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MEMORANDUM OPINION Before the court in this adversary proceeding is a motion for new trial or amendment of an order, filed by Tanna Latisha Suggs (“Debtor”). The order from which Debtor seeks relief was entered by this Court on October 6, 2006 (“Order”), in conjunction with the motion to dismiss filed by Regency Financial Corp. (“Regency”) and Debtor’s motion for summary judgment. Thi...
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ORDER CONFIRMING JOINT PLAN OF REORGANIZATION OF WINNDIXIE STORES, INC. AND AFFILIATED DEBTORS RECITALS A. On June 29, 2006, the Debtors filed the Joint Plan of Reorganization of Winn *815 Dixie Stores, Inc. and Affiliated Debtors (as subsequently amended, modified, or supplemented, the “Plan”) and a related disclosure statement (the “Disclosure Statement”...
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MEMORANDUM OPINION This adversary comes before the Court on the Motion for Summary Judgment (“Motion”) filed by plaintiff Auto Mart, Inc. (“Plaintiff’) against David W. Wendt (“Defendant” or “Debtor”). Plaintiff seeks that the debt owed to it by Debtor be deemed nondischargeable under 11 U.S.C. § 528(a)(2) and/or (a)(6). This is a core proceeding under 28 U.S.C. § 157(b)(2)(I) over wh...
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MEMORANDUM ORDER DENYING TRUSTEE’S MOTION FOR SUMMARY JUDGMENT (C.P.# 75) AND GRANTING IN PART O’CONNOR & TAYLOR DEVELOPMENT CORP.’S MOTION FOR SUMMARY JUDGMENT (C.P.# 78) THIS MATTER came before the Court on May 15, 2006 upon Plaintiff Michael R. Bakst’s, Trustee, (“Trustee”) Motion for Summary Judgment Against Defendant O’Connor & Taylor Development Corp., a Florida Corporation (“Motion”) [C....
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Memorandum re Violation of Discharge Injunction I. Background and Facts The roots of the current dispute between debtor Glenn Storek and his brothers, Richard and Craig Storek, and their 92-year-old mother, Lorraine Storek, stretch back for decades to 1969, when Glenn purchased a one-half interest in the Storek Building, a three-story building in San Francisco which has been owned by...
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MEMORANDUM OPINION This matter comes before the Court on Plaintiffs complaint to recover seized funds claimed as exempt and Defendant’s motion for summary judgment. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(0). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in conforman...
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MEMORANDUM OF OPINION AND ORDER Before the Court is DaimlerChrysler Fin. Servs. Amers. LLC (“Creditor”) Motion for Entry of Order Confirming Termination of Automatic Stay Pursuant to 11 U.S.C. § 362(j). This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and General Order No. 84 of this District. After considering Creditor’s Motion and conducting a hearing, the Court rul...
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MEMORANDUM OPINION The court has previously directed, by order entered October 11, 2006, that all evidence with respect to the “Defendants’ Motion for Summary Judgment” (Docket No. 13) be filed on or before October 27, 2006. The following are the Findings of Fact and Conclusions of Law of the court. A separate Summary Judgment will be entered. To the extent any of the Findings of Fact...
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MEMORANDUM OPINION This is an action by a chapter 11 debtor in possession, Simon Ben-Ami, to determine the validity and extent of a judgment lien and a deed of trust, both held by Daniel Katz. Summary judgment has already been entered in favor of Katz determining that the judgment lien is valid. 1 A trial with respect to the deed of trust was held on November 14, 2006. The debt...
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MEMORANDUM OF OPINION AND ORDER Before the Court is the Debtor’s Motion for Issuance of a Show Cause Order against Capital One Auto Finance in Contempt Proceeding for Violation of Automatic Stay. Capital One opposes the Motion. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and General Order No. 84 of this District. After considering the Debtor’s Motion, Capital One...
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DECISION AND ORDER This cause is before the Court after an Evidentiary Hearing on the Debtor’s Objection to the Amended Claim of Option One Mortgage Corp. (Claim # 1-2). After considering the arguments of the Parties at the Hearing, the Court issued an oral order, sustaining the Debtor’s objection in part, by revising downward, from $10,144.62 to $9,755.94, the arrearage amount set forth in the ...
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MEMORANDUM OPINION The Court has before it the Debtor’s Application for Authority to Retain Counsel, namely, William S. Gannon, Esquire, and William S. Gannon PLLC. On September 20, 2006, the Debtor, Pittsfield Weaving Company, filed a voluntary petition under Chapter 11 of the Bankruptcy Code. The application currently before this Court was filed on November 3, 2006, but does not see...
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MEMORANDUM DECISION ON REMAND FROM THE COURT OF APPEALS FOR THE SECOND CIRCUIT The Court of Appeals for the Second Circuit, in Millennium, II, 1 remanded certain issues to this Court relating to the propriety of continuing in effect an anti-suit injunction entered over four years ago. The questions presented require, among other things: (i) application to this case...
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MEMORANDUM OPINION Before the Court is the Debtors’ complaint seeking an undue hardship discharge of their student loans pursuant to section 523(a)(8). 1 The Court held a trial on August 17, 2006, at which Mrs. Neal testified under oath. At the close of the trial, the Court took the matter under advisement and asked the New Hampshire Higher Education Assistance Foundation (...
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MEMORANDUM DECISION REGARDING COMPENSATORY CONTEMPT DAMAGES, SECOND BILL OF PARTICULARS Plaintiff Lehman Brothers Holdings Inc. (“Lehman”) has filed a motion entitled Lehman Brothers Holdings Ine.’s Motion and Memorandum Summarizing and Requesting the Award of Compensatory Contempt Damages Associated with Lehman’s Second Bill of Particulars (the “Motion,” docket no. 1265) together with supporting ...
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OPINION RE: TRUSTEE’S OCTOBER 30, 2006 MOTION FOR RECONSIDERATION On October 30, 2006, the Chapter 7 Trustee filed a motion entitled “Trustee’s Motion for Reconsideration of Order Dated October 20, 2006 Denying Trustee’s Motion for Approval of Settlement.” A hearing on the motion is not necessary. The Chapter 7 Trustee’s motion is precipitated by a prior motion filed by her on Ap...
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This matter came before the court on the Trustee’s Motion to compel turnover of funds held by Debtor John A. Hill’s bankruptcy counsel, Shawn P. Ryan (hereinafter “Mr. Ryan”). Both Mr. Ryan and the Trustee, Rodolfo Camacho, appeared pro se. Following an initial hearing on this matter I set a briefing schedule and took the matter under advisement. At my request, the parties thereafter submi...
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The debtors appeal from bankruptcy court 1 orders which denied confirmation of the debtors’ Chapter 12 plan, modified the automatic stay and dismissed the case. We affirm. BACKGROUND The debtors are farmers in Jefferson, Iowa. In 2000, they refinanced their loans through the Farm Service Agency. Commerce Bank of Geneva, Minnesota provided a guaranteed loan for $182,000 that...
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MEMORANDUM OF DECISION Introduction Attorney Kelly Beeman represented Debtor A.W. Logging, Inc. in this Chapter 11 case. After a reorganization plan was confirmed, Beeman and Debtor terminated their relationship. Beeman then applied for final approval of his compensation and expenses. Docket No. 153. His former client, Debtor, objected to that application, Docket No. 160, giving rise...
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MEMORANDUM OPINION CONCERNING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (DOC. ## 61, 62, 63) In this adversary proceeding, Plaintiff Ronald Sommers, chapter 7 Trustee of the bankruptcy estate of Glenn and Cindy Wilson, seeks to recover damages from Kenneth Vaught, Duke Austin and Turn 2 Baseball Academy (collectively, “Defendants”) for their allegedly having fraudulently induced Glenn Wilson t...
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MEMORANDUM OF DECISION Introduction Plaintiff, R. Sam Hopkins, chapter 7 trustee, commenced this adversary proceeding against Defendant Donald W. Lojek, alleging that he received an avoidable post-bankruptcy transfer of property of the bankruptcy estate under § 549(a).1 Defendant denies the transfer should be avoided, but if it is, in a third-party complaint, Defendant seeks to recover a judgme...
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MEMORANDUM OPINION AND ORDER FOR RELIEF FROM COMPLIANCE On May 27, 2006, Thomas Guidry filed a petition for chapter 13 bankruptcy. On May 30, 2006, this Court issued an initial order in this case. The Court issues this initial order separately in every chapter 13 case, pursuant to the procedures for administration of chapter 13 bankruptcy cases in the Southern District of Texas. The initi...
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*545 ORDER DISMISSING CASE AS TO WILLIAM A. CLOUD Before the Court is the Trustee’s [Ex-Parte] Request for Entry of Order of Dismissal filed on October 26, 2006 (the “Request”)(Doe. 57). In the Request, the Trustee seeks an order of dismissal pursuant to 11 U.S.C. § 521(i)(l) because the Debtors failed to file “copies of all payment advices received within 60 days of the filing of the petit...
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DECISION AND ORDER This cause comes before the Court after a Trial on the Plaintiffs Complaint to Determine Dischargeability. At the conclusion of the Trial, the Court deferred ruling on the matter so as to afford the opportunity to thoroughly review the evidence in this case, together with the respective arguments made by the Parties. The Court has now had this opportunity, and finds...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Plaintiffs’ Motion for Summary Judgment to Determine Dischargeability of Debt pursuant to 11 U.S.C. § 523; and the Response of the Defendant/Debtor, Phil M. Kelley. The Court has now had the opportunity to review the arguments of the Parties, as well as the entire record in this case. Based upon that review, and for the fo...
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OPINION This matter having come before the Court on a Motion for an Order Imposing the Stay as to all creditors pursuant to § 362(c)(3)(B) and Farmers-Merchants National Bank’s Objection to Debtors’ Motion for an Order Imposing the Stay; the Court, having heard sworn testimony, arguments of counsel, and being otherwise fully advised in the premises, makes the following findings of fact and co...
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ORDER DIRECTING JUDGMENT IN FAVOR OF PLAINTIFF Thomas J. O’Neal, the Chapter 7 Trustee, filed an adversary action against Jim Arnold, seeking recovery of a transfer made by the Debtors to Arnold approximately ten months prior to the filing of their bankruptcy petition. The parties have stipulated to the facts and. have stated to the court, via telephone conference, that they wish to submit th...
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MEMORANDUM DECISION GRANTING RECONSIDERATION, AND DENYING LEAVE TO FILE LATE PROOF OF CLAIM This matter calls for the application of the Pioneer 1 factors governing “excusable neglect” to a situation involving law office failure. KR Livonia, LLC (“Livonia”), a creditor, failed to file a proof of claim before the bar date under the circumstances described below. It moved for an ...
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OPINION DETERMINING: (1) ENGAGEMENT RING IS NOT PROPERTY OF THE ESTATE, (2) DEBTOR DOES NOT HAVE SUFFICIENT REGULAR INCOME TO BE ELIGIBLE FOR CHAPTER 13 OR TO PROPOSE A FEASIBLE PLAN, AND (3) THE CASE MUST BE RE-CONVERTED TO CHAPTER 7 This matter is before the Court for decision following an evidentiary hearing on July 27, 2006. The issues at that hearing were (1) whether an engagement ri...
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ORDER GRANTING DEBTORS’ MOTION FOR SUMMARY JUDGMENT AND DISALLOWING MARITIME LIEN CLAIMS The Debtors, Alberta Trading Co. (“Alberta Trading”), Magic Cruise Line Services Co. (“Magic Cruise Line”) and Ocean Club Services, LLC (“Ocean Club Services”) (collectively, the “Debtors”), filed their Amended Objection to Claims (“Objection”) (C.P.#239), including objections to two proofs of cla...
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OPINION 1 Before the Court is a Motion for Partial Summary Judgment filed by EBC I, Inc., f/k/a eToys, Inc. (the “Debtor”) and a Motion for Summary Judgment filed by America Online, Inc. (“AOL”). For the reasons set forth below, the Court will grant, in part only, AOL’s Motion for Summary Judgment and dismiss Counts IV and V of the Complaint. The Court will also grant, in p...
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MEMORANDUM The Herzog Company asks the court to terminate the automatic stay on the ground that the debtor, Reginald Gibson, Sr., has commenced a chapter 12 case in bad faith. Three facts allegedly indicate the debtor’s bad faith. First, when this petition was filed the debtor was a debtor in a pending chapter 7 case awaiting entry of a discharge. Second, the debtor is not a family farmer and t...
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MEMORANDUM OF OPINION On February 2, 2005, Tower Automotive, Inc. and twenty-five of its subsidiaries and affiliates filed petitions under Chapter'll of the Bankruptcy Code. One of the filing entities was R.J. Tower Corporation (“RJ Tower”), a holding company that owns the stock of some or all of the group’s foreign subsidiaries and that is in turn owned by Tower Automotive, Inc. Some of the fore...
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MEMORANDUM AND ORDER DENYING MOTION FOR POST-PETITION ATTORNEYS’ FEES WITHOUT PREJUDICE Defendant Burlingame Capital Partners II, L.P. (“Burlingame”) seeks an award of post-petition attorneys’ fees and costs as part of its judgment in the above-captioned consolidated adversary proceedings. For the reasons stated below, the request will be denied without prejudice. The above-captioned adversary pr...
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MEMORANDUM OPINION AND ORDER Trial was held on November 13, 2006, on plaintiffs complaint to determine the validity, priority, or extent of a lien under a consignment held by defendant Suna Bros. Inc. The issue is whether Suna’s financing statement was seriously misleading because it was not filed under the correct name of the debtor. For the reasons set forth below, the court finds t...
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MEMORANDUM OF OPINION AND ORDER Before the Court is William Bricker’s Motion for Issuance of an Order Upon BSA Investments, Inc. And Bruce Adelstein to Show Cause for Violating the Release Provision Contained in a Certain Stipulation and Order Entered in Adv. Proceeding No. 02-4252 on September 25, 2003. Also before the Court is Motion of BSA Investment for Sanctions Pursuant to Bankruptcy Ru...
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MEMORANDUM DECISION (Re: Motion for Relief from the Automatic Stay) At a hearing held on September 29, 2005, this Court heard and determined a motion by Champaign Landmark by which it sought relief from the automatic stay pursuant to 11 U.S.C. § 362(d) for the purpose of enforcing an Ohio statutory lien that encumbered certain agricultural commodity assets of the debtor, R.F. Cunning...
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BENCH DECISION 1 ON MOTION TO DESIGNATE VOTES OF CERTAIN CREDITORS IN THE CLASS OF ACC SENIOR NOTES In this contested matter in the chapter 11 cases of Adelphia Communications Corporation and its subsidiaries (the “Debtors”), I have before me the motion of a *56 group of holders of ACC Senior Notes (the “ACC Bondholders Group”) to designate 2 the votes i...
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MEMORANDUM OF DECISION GRANTING THE UNITED STATES TRUSTEE’S MOTION TO DISMISS CHAPTER 7 CASE WITH PREJUDICE PURSUANT TO 11 U.S.C. § 707(b)(3)(A) The United States Trustee (“UST”) filed a Motion to Dismiss Chapter 7 Case with Prejudice Pursuant to 11 U.S.C. § 707(b)(3)(A) and Contingent Motion to Extend Bar Date for Filing Complaint under 11 U.S.C. § 727 Objecting to Debtor’s Discharge (“M...
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MEMORANDUM This is a proceeding brought by the trustee against the defendant to recover alleged setoffs pursuant to the provisions of 11 U.S.C. § 553. Having considered both the evidence produced at trial and the arguments of counsel, the court now makes its findings of fact and conclusions of law pursuant to the provisions of Bankruptcy Rule 7052. I. The debtor, Transcommun...
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OPINION The issue before the Court is whether a debt arising out of the Debtor’s contract to build a house for the Plaintiffs is nondis-chargeable because of alleged fraud and embezzlement. Although Plaintiffs obtained an $88,000 state court judgment against the Debtor before this case was filed, the Plaintiffs have failed to present proof here that their complaints are anything more than...
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MEMORANDUM OPINION Now before the Court is the Complaint To Determine Dischargeability Of A Debt, filed by International Fidelity Insurance Company (“IFIC”) pursuant to 11 U.S.C. § 523(a)(4) and an Answer filed by Debtor Emery Joseph Fox (“the Defendant” or “Fox”). Trial in this adversary proceeding was held on August 3-4, 2006. This is a core proceeding under 28 U.S.C. § 1...
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MEMORANDUM OPINION This opinion is with respect to defendants Marc P. Cote and Eugina C. Cote’s (the “Defendants”) motion (Adv.Doc. # 5) for abstention and to dismiss the complaint of plaintiff FINOVA Capital Corporation (the “Plaintiff’). The Plaintiff, a reorganized debtor who filed for bankruptcy in this Court on March 7, 2001, brings this adversary proceeding against the Defendants, r...
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DECISION This matter comes before the Court on the motion of the Liquidating Trustee (the “Trustee”) of the Liquidating Trust U/A/W PT-1 Communications, Inc., PT-1 Long Distance, Inc., and PT-1 Technologies, Inc. (“Liquidating Trust”) for summary judgment expunging the proof of claim of the Internal Revenue Service (“IRS”). The IRS’s proof of claim seeks taxes, interest and penalties for the ...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the motion of Deutsche Bank National Trust, as Trustee, by Litton Loan Servicing, LP, loan servicing agent (“Movant”) to annul the automatic stay and validate a foreclosure sale held during the pendency of a previous Chapter 13 proceeding by the debtor Kevin Campbell (“Debtor”). The Court has jurisdiction over this matter pursuan...
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MEMORANDUM OF DECISION The above-captioned debtor (the “Debt- or”) filed a motion, seeking an order compelling his former bankruptcy attorney, Jaime Alcabes (“Alcabes”), to disgorge all monies received in connection with his representation of the Debtor in the above-captioned case. Because the material facts presented by the motion were disputed, the Court held an evidentiary hearing on t...
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MEMORANDUM OPINION 1 Before the Court is the Motion of The Shaw Group, Inc., and Shaw Environmental, Inc. (collectively, “Shaw”) seeking prejudgment interest on the judgment entered in its favor against Bechtel Jacobs Company, LLC (“Bechtel”). For the reasons set forth below, the Court will grant the Motion, in part. I. BACKGROUND Shaw provides various eng...
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MEMORANDUM AND ORDER ON THE POST-EFFECTIVE DATE COMMITTEE’S OBJECTION TO THE CLAIM OF JAMES DUNLAP The Debtors’ Chapter 11 case was filed on January 14, 2005, and a Plan of Reorganization (the “Plan”) was confirmed on November 23, 2005. The Plan created a PosWEffective Date Committee (the “PEDC”) with the responsibility of administering, disputing, objecting to, compromising, or other...
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MEMORANDUM OPINION This matter comes before the Court on the creditors’ objections to confirmation. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(L). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in conformance with Federal Rule of Bankruptcy Procedure 7052. Findings of ...
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MEMORANDUM OPINION AND ORDER DENYING MOTION FOR RELIEF FROM STAY TO CONTINUE TORT LITIGATION IN CIRCUIT COURT FOR JEFFERSON COUN *854 TY 1 This matter came before the Court for a hearing on November 27, 2006 on the Motion for Relief from Stay to Continue Tort Litigation in the Circuit Court for Jefferson County (the “Motion”)(doc. # 282) filed on behalf of Larry Singletary (the “Creditor”...
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MEMORANDUM OF DECISION AND ORDER Jugoscovenska Izovzna i Kreditna Banka, a/k/a JIK Banka, a/k/a Yugoslav Export & Credit Bank (the “Debtor”) was a bank organized in the former Federal Republic of Yugoslavia, now the Republics of Serbia and Montenegro. Pursuant to local insolvency law, the Debtor was placed into liquidation proceedings on July 26, 2000, and on December 29, 2000, Zoran ...
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OPINION The Debtor seeks sanctions against the State of New Jersey, Motor Vehicle Com *141 mission, (“NJ-MVC”) for violating his discharge. NJ-MVC has two claims for surcharges under N.J.S.A. 17:29A-35(b)(2) following convictions for motor vehicle offenses. Both offenses occurred prepetition but one conviction was prepetition while the other was postpetition. Because the ...
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MEMORANDUM RE MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS At the above date and time, the court held a hearing on Debtors’ Motion to Compel Discovery and For Sanctions (the “Motion to Compel”). Cathleen Cooper Moran appeared for Debtors. No one appeared for the responding parties. I determine that the motion should be granted as follows. FACTS On February 10, 2006, this court held a hearin...
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*559 MEMORANDUM AND ORDER These two cases pose the same question: Does property acquired by a debtor after the confirmation of a Chapter 13 plan (“post-confirmation assets”) 1 constitute property of the debtor’s bankruptcy estate or vest in the debtor? In the Harvey case, a hearing was held on May 9, 2006. In the Waldron case, a hearing was held on August 9, 2006. After considering the ev...
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MEMORANDUM OPINION 1 Before the Court is the Motion of the United States Trustee (“UST”) to Dismiss the chapter 7 case of Celine Artie Wilson (the “Debtor”) pursuant to 11 U.S.C. § 707(b)(2) or, alternatively, pursuant to 11 U.S.C. § 707(b)(3) (the “Motion to Dismiss”). Following the November 16, 2006 hearing on the Motion to Dismiss, only one discrete issue with regard to the UST’s request...
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Debtor Alvin Leroy Baldwin appeals from the Bankruptcy Court’s1 March 28, 2006 Order denying his motion, which we deem to be a Rule 60(b)(4)2 motion for relief from the Court’s March 9, 2006 Order dismissing his case. For the reasons that follow, the Order is affirmed. FACTUAL BACKGROUND Debtor Alvin Leroy Baldwin has filed eight Chapter 13 bankruptcy cases since 1996, all of which were dismissed ...
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ORDER On July 22, 2006, Melissa Gatlin (“Debt- or”) filed a voluntary petition for relief under the provision of Chapter 13 of the United States Bankruptcy Code. On August 3, 2006, Washington Mutual Bank (“Washington Mutual”) filed a motion for relief from the automatic stay and an objection to confirmation of the plan. A hearing on the motion for relief from the automatic stay a...
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MEMORANDUM OPINION Came on for consideration the Defendants’ Motion for Partial Summary Judgment on Nondischargeability (Docket No. 20) filed by Texas Department of Public Safety, and Thomas A. Davis, Jr., in his Official Capacity as Director of the Texas Department of Public Safety (collectively “DPS”) and the “Plaintiffs (Debtor) Motion for Summary Judgment” (Docket No. 21) filed by Jackie Ll...
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Decision and Order on Trustee’s Motion to Compel Debtors to Turn Over Portion of 2005 Federal Income Tax Refund Before the Court is a Motion by the chapter 7 trustee (“Trustee”) seeking to compel turnover of a portion of the married debtors’ 2005 income tax refunds. The Court must determine whether the bankruptcy estate is entitled to any portion of the debtors’ federal income tax refunds...
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OPINION REGARDING DEBTORS’ SUPPLEMENTAL OBJECTION TO, AND MOTION TO DENY CLASS CERTIFICATION OF, THAT PORTION OF PROOF OF CLAIM NUMBER 31079 THAT ASSERTS A CLAIM ON BEHALF OF PUTATIVE CLASS OR AS A PRIVATE ATTORNEY GENERAL UNDER CALIFORNIA LAW I. Introduction Paul Chiptoff (“Chiptoff’) filed a proof of claim (the “Proof of Claim”) on behalf of himself and a putative class (the “Class...
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MEMORANDUM OPINION AND ORDER DENYING DEBTORS’ “MOTION FOR ORDER TO SHOW CAUSE WHY WELLS FARGO BANK SHOULD NOT BE HELD IN CONTEMPT” THIS MATTER comes before the Court on the Debtors’ Motion for Order to Show Cause Why Wells Fargo Bank Should Not Be Held in Contempt filed on March 16, *849 2006 (Docket # 19) (“Motion to Show Cause”) and Wells Fargo Bank, N.A.’s (“Wells Fargo Ba...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Before this Court is an adversary proceeding commenced on August 8, 2005 by *70 Kent Douglas Sorber (“Debtor”) by the filing of a complaint against Educational Credit Management Corporation (“ECMC”), as assignee of loans of the New York State Higher Education Services and Sallie Mae Loan Servicing Center, see...
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OPINION REGARDING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT I. INTRODUCTION Before the Court is a motion (the “Motion”) for summary judgment, or in the alternative, partial summary judgment, in the above-referenced adversary proceeding, filed by the defendant Carol Whalen (“Whalen”), executrix for the estate of John C. Baxter (“Baxter” a...
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OPINION DENYING ENRON’S REQUEST FOR RELIEF PURSUANT TO BANKRUPTCY RULE 9023 REGARDING OPINION DENYING MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD LEHMAN BROTHERS JAPAN, INC. Facts Enron Corp. (“Enron”) has filed a Motion for Reargument of Court’s Denial of Motion for Leave to Amend Complaint to Add Lehman Brothers Japan, Inc. (“Leh *346 man Japan”)(the “Motion for Reargum...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW These Findings of Fact and Conclusions of law are with respect to reorganized debtor FINOVA Capital Corporation’s (“FINOVA”) objection to the claim of Olsen Industries, Inc. (“Olsen Industries”). Prior to filing its bankruptcy petition FI-NOVA was a secured creditor in the bankruptcy case of Consolidated Industries, Inc. (“Consolidated”). Olsen Indu...
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MEMORANDUM OPINION APPROVING, IN PART, DEBTORS’ MOTION FOR AUTHORIZATION TO ASSUME EMPLOYMENT AGREEMENTS, FOR APPROVAL OF A LONG TERM INCENTIVE PLAN AND RELATED RELIEF Before the Court is the motion (the “Executive Compensation Motion”) of Dana Corporation (“Dana” or collectively with its affiliated debtors, the “Debtors”), pursuant to sections 105(a), 363(b), 365, 502 and 503(c) of t...
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Memorandum Opinion The Court has before it the “Debtor’s Motion to Convert Case to One Under Chapter 13.” Paul Harris (the “Debtor”) seeks to convert pursuant to 11 U.S.C. § 706(a). The Chapter 7 trustee (the “trustee”), the United States Trustee, and Joel B. Alvord have filed objections to the Debtor’s motion. The Court held a full-day evidentiary hearing on April 17, 2006. For the r...
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MEMORANDUM OPINION This matter comes before the Court on Charles R. Hunt’s suit on contract and Daniel and Shawn McTyeire’s counterclaim for failure to fully disclose fees and violation of the discharge injunction. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(0). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the follow...
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*910 MEMORANDUM OPINION This matter comes before the Court on Plaintiffs complaint to recover preferences and the parties’ cross motions for summary judgment. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(F). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in ...
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MEMORANDUM OPINION This matter comes before the Court on Plaintiffs complaint to recover preferences and motion for summary judgment. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(F). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in conformance with Federal Rule of Bankruptc...
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MEMORANDUM OPINION This opinion is with respect to Defendants’ motion (Doc. # 59) to dismiss the Complaint. For the reasons set forth below, the motion will be denied in part and granted in part. BACKGROUND On June 22, 2000, Genesis Health Ventures, Inc. (“Genesis” or “Debtor”) and Multicare AMC, Inc. (“Multicare”) filed separate voluntary petitions for relief under chapter 11 o...
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MEMORANDUM OPINION These matters come before the Court on the motion of Carl F. Semrau and Carl F. Semrau, D.D.S., Ltd., an Illinois corporation (the “Debtors”) for sanctions pursuant to 11 U.S.C. § 105(a) and 28 U.S.C. § 1927 against Mary O’Connor, Cynthia Hamilton f/k/a Cynthia Semrau, James Schelli, Jr., Webster & Schelli, P.C., and Clausen Miller PC (the “Respondents”). The Debtor...
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MEMORANDUM OPINION This matter comes before the Court on the complaint filed by David E. Grochocin-ski, the Chapter 7 trustee (the “Trustee”) of the bankruptcy estate of Kerry Robert Knippen (the “Debtor”) against Jodi Knip-pen (“Jodi”), Dale Cutsinger (“Dale”), and Sandra Lou Cutsinger (“Sandra”) (collectively the “Defendants”) to avoid an alleged fraudulent transfer pursuant to 11 U...
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MEMORANDUM OPINION AND DECISION This matter comes before the Court upon the Plaintiffs Motion for Summary Judgment and the Defendant’s opposition thereto. Both Parties filed materials with the Court regarding this matter, which the Court has now had the opportunity to review. Based upon this review, the Court, for the reasons stated herein, finds that the Plaintiffs Motion should be D...
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MEMORANDUM DECISION This is a fraudulent transfer action brought by the chapter 7 trustee against various parties to a complicated sale transaction involving most, but not all, of the debtor’s assets before the bankruptcy case was filed. The court dealt with a portion of the transaction on a motion for summary judgment brought by defendant Wells Fargo Bank Wisconsin, NA, (see Memorandum Decision ...
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MEMORANDUM OPINION BACKGROUND In 2001, Plaintiff Mathew Ray filed articles of incorporation with the Oregon Secretary of State for Matt Ray Construction, Inc. Articles of amendment were thereafter filed in June 2004 to change the name of the corporation to Valley Concrete, Inc. Mr. Ray was president of the corporation and a shareholder. As is required under state law, the corpora...
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MEMORANDUM OPINION (A) SUSTAINING OMNIBUS OBJECTION TO ALL PROOFS OF CLAIM FILED BY ALBERT E. CUNEO AND (B) GRANTING MOTION TO RELEASE FUNDS There are two matters before the Court, each of which have been consolidated for purposes of this Memorandum Opinion. These two matters are core proceedings pursuant to 28 U.S.C. §§ 157(b)(2)(A), (B), (F), (H), (K) and (O). The first matter is the debtor’s...
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375 B.R. 637 (2006) In re Ashraf Fouad HASSAN, Irina Hassan, Debtors. Christopher J. Redmond, Trustee, Kansas Express International, Inc., Plaintiffs, v. Ashraf Fouad Hassan, Bilal Said, International Football Club, Inc., Overland Park Sports Complex, LLC, Terra Sports Group, LLC, Terra Venture, Inc., Terra Venture Investments, LLC, Analytical Management Laboratories, Inc., Mark Murphy, The Murph...
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OPINION GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND ITS COMPLAINT ' AGAINST EARTHLINK, INC. FACTUAL AND PROCEDURAL HISTORY A. The Debtors Commencing on December 2, 2001, and from time to time continuing thereafter, Enron Corp. (“Enron”) and its affiliates (the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the “Bankrupt...
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MEMORANDUM DECISION RE: EFFECT OF OPTION CONTRACT The parties have briefed legal issues to the court, and have made arguments concerning the legal effect of a pre-petition option contract. After consideration of the arguments, the undisputed documents, the undisputed chronology of facts, and the law, the court now decides the issues, and explains its reasoning. FACTS On Augu...
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MEMORANDUM OF DECISION I. Introduction In her Chapter 7 bankruptcy case, plaintiff Jennifer Gail Brunell (“Debtor”) filed an adversary complaint (“Complaint”) seeking the discharge of her educational loans under 11 U.S.C. § 523(a)(8). Educational Credit Management Corporation (“ECMC”) filed a motion to intervene in this matter and I allowed ECMC to substitute as defendant for Wells Fargo Educatio...
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MEMORANDUM OF DECISION REGARDING TRUSTEE’S LIMITED OBJECTION TO DEBTOR’S CLAIM OF EXEMPTION I. Introduction The matter before the Court is the Trustee’s Limited Objection to Debtor’s Claim of Exemption (the “Objection”) and the response of Robert G. Leung (the “Debtor”). The Trustee contends that under newly enacted 11 U.S.C. § 522(p), the Debtor’s homestead exemption must be...
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MEMORANDUM ON MOTIONS FOR SUMMARY JUDGMENT This proceeding comes before the Court on the cross motions for summary judgment filed by the debtor / plaintiff (“Plaintiff’) and the Defendants, the Estate of Ira Lee Roberts (“Roberts Estate”) and James A. Wethington, Individually and as Commonwealth’s Attorney for the Sixth (6th) Judicial District of Kentucky (“Wethington”). Upon consideration of the ...
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*27 MEMORANDUM OPINION AND ORDER DENYING MOTION TO REARGUE In an opinion dated March 13, 2006 (the “Opinion”)(.ECF Doc. #12), the Court granted the defendants’ motion for summary judgment dismissing the complaint. The plaintiff now moves for reargument. For the reasons that follow, the motion is denied. BACKGROUND The Court refers the reader to the Opinion for a fuller ...
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OPINION REGARDING PLAINTIFF’S MOTION FOR LEAVE TO AMEND ITS COMPLAINT AGAINST MERRILL LYNCH INVESTMENT MANAGERS CO., LTD. FACTUAL AND PROCEDURAL HISTORY The Debtors Commencing on December 2, 2001, and from time to time continuing thereafter, *38 Enron Corp. (“Enron”) and its affiliates (the “Debtors”) filed voluntary petitions for relief under chapter 11 of titl...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Proceeding is before the Court upon Romuald Klauer’s Motion for Administrative and Litigation Costs and Fees. After a hearing held on August 22, 2006, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. On December 19, 2003, Romuald Klauer (“Plaintiff’) filed a petition for relief under C...
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MEMORANDUM OPINION This case concerns the Bankruptcy Abuse Prevention and Consumer Protection Act’s (BAPCPA) treatment of 401k contributions and 401k loan payments in Chapter 13 plans. The Chapter 13 Trus *690 tee filed an objection to the confirmation of Anne W. Njuguna’s (the “Debtor”) plan on the ground that the plan does not commit “all of the debtor’s projected disposable income” for p...
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MEMORANDUM DECISION ON MOTION TO DISMISS The U.S. Trustee has moved to dismiss this case based on a presumption of abuse under Bankruptcy Code § 707(b)(2) or as an abuse under § 707(b)(3). This chapter 7 case was filed on August 15, 2006, and is governed by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). The parties have stipulated to most of the facts. ...
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MEMORANDUM OF DECISION The above-captioned debtor (the “Debt- or”) seeks confirmation of his amended chapter 13 plan, filed on August 1, 2006 (the “Plan”). The chapter 13 trustee (the “Trustee”) and an unsecured creditor (“American Express”) object to confirmation. 1 Section 1325(b)(1)(B) provides that, when the chapter 13 trustee or an unsecured creditor objects to confirmation, the plan may...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Under consideration by the Court is a motion filed by Kenneth L. Bryan and Ethel L. Bryan- (“Debtors”) on March 24, 2006, requesting default judgment or summary judgment on counterclaims asserted by the Debtors against American General Financial Services, Inc. (“American Gener*14al”) on February 8, 2006, with respect to an advers...
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MEMORANDUM OPINION The United States Trustee (the “Trustee”) filed a motion to dismiss John and Susan Krause’s (the “Debtors”) bankruptcy case pursuant to section 707(b) 1 on the grounds that granting Chapter 7 relief would be a “substantial abuse” of the Bankruptcy Code. The Debtors objected to the Trustee’s motion. The Court held two hearings on the matter, the second being an evidentiary...
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MEMORANDUM OF DECISION AND ORDER The matters before the court are (a) the above-captioned pro se defendant/debtor’s (the “Debtor”) Motion for Summary Judgment (A.P. Doc. I.D. No. 44, the “Debtor Motion”) 1 ; (b) the above-captioned plaintiff Automated Salvage Transport, Inc.’s (“ASTI”) Motion for Summary Judgment (A.P. Doc. I.D. No. 49, the “ASTI Motion”); (c) AS...
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MEMORANDUM OPINION 1 In this Adversary, Debtors seek an injunction against their landlord, the defendant, Frank Zokaites, to stop him from violating the automatic stay and to prevent him from interfering with their business, the operation of a child daycare center. At Docket No. 19 in the bankruptcy case, Debtors also seek an order permitting the rejection of the lease of the premises where t...
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KRESSEL, Chief Judge, VENTERS and McDONALD, Bankruptcy Judges. Debtor appeals from the order of the bankruptcy court1 sustaining Trustee’s objection to Debtor’s claim of exemption of monthly payments he receives pursuant to an annuity. We affirm. I. The relevant facts are not in dispute. Debtor, a North Dakota resident, was severely injured in a car accident in 1989 in which he became permanently ...
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DECISION ON MOTION TO REJECT COMAIR PILOTS’ COLLECTIVE BARGAINING AGREEMENT For the third time this year this Court is called upon to decide a motion by debtor *471 Comair, Inc. (“Comair” or “debtor”) to reject its collective bargaining agreement with one of its three unions under Section 1113 of the Bankruptcy Code, 11 U.S.C. § 1113. This motion seeks to reject the colle...
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Martin Ramos Delgado, as the debtor in a case under Chapter 13 of the Bankruptcy Code, appeals from an order overruling his objection to a proof of claim filed by the Commonwealth of Puerto Rico and, more specifically, to the Commonwealth’s claim of priority under 11 U.S.C. § 507(a) (8) (A) (i) as to income taxes for calendar year 2001. For the reasons set forth below, we affirm. I. BACKGROUND...
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MEMORANDUM AND NOW, this 19th day of December, 2006, upon consideration of the motion by Joseph and Linda Taylor, the instant debtors and defendants in the instant adversary proceeding (hereafter “the Debtors”), for reconsideration of this Court’s order dated October 5, 2006 (such motion hereafter referred to as “the Second Reconsideration Motion”), which order in turn denied the Debt...
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MEMORANDUM OPINION 1 The matters before the court are the opposing Motions for Summary Judgment 2 of the Debtors, W.R. Grace & Company (“Grace”), and a group of property damage claimants, Zonolite Attic Insulation Claimants (“ZAI Claimants”), and the ZAI Claimants’ Motion for Partial Summary Judgment 3 regarding the threshold issue of what science ...
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MEMORANDUM DECISION Plaintiff, Choice Hotels International, Inc. (“Choice Hotels”) seeks a summary judgment against Defendant, Scott William Wright (“Wright”) declaring its debt non-dischargeable under § 523(a)(6) of the Code. 1 The court, having considered the pleadings, evidentiary record, and arguments of counsel, makes the following findings of fact and conclusions of law ...
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MEMORANDUM OPINION Pending before the Court is the Chapter 13 Trustee’s and Defendant Novastar Home Mortgage, Inc.’s joint Motion to Approve Settlement and Compromise (Doc. No. 5); Defendant Debtor’s Objection to Proposed Settlement (Doc. No. 8); Debt- or’s Motion to Grant Modified Equitable Mortgage (Doc. No. 12); and Novastar *221Home Mortgage, Inc.’s Response to Motion to Grant Modified Equita...
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MEMORANDUM AND ORDER SUSTAINING TRUSTEE’S OBJECTION TO DEBTOR’S PLAN Following oral argument on November 15, 2006, the Court took under advisement the Chapter 13 Trustee’s objection to Debtor’s plan that proposes to be completed in 18 months without making payments to unsecured creditors. The Chapter 13 Trustee, William H. Griffin (hereafter Trustee), appears by Dianna J. Lord. Debtor, The...
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OPINION I. INTRODUCTION Presently before me in this Chapter 11 case is the Objection of R.H.R. Mechanical Contractors, Inc. (“the Debtor” or “R.H.R.”) to the proof of claim of Claimant *204 Sheet Metal Workers Local 19 Benefit Funds (“the Union”). The Union asserts an unsecured claim based on a pre-petition writ of execution it served on the Debtor ...
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MEMORANDUM DECISION This Adversary Proceeding is before the Court upon the Motion for Summary Judg *169 merit filed by the Plaintiffs Ella Bell, Thomas Bell, III, and Kahlia Bell-Fleming (Doc. 15), and the Motion to Dismiss filed by the Defendant, Thomas Bell, Jr. A hearing was held on November 28, 2006, at 11:00 a.m. The Plaintiffs were present by counsel Kristen P. Southworth. The Defenda...
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ORDER ON DEBTOR’S MOTION FOR SUMMARY JUDGMENT ON CLAIM 27 OF MSM, INC, f/k/a MSM CHARTERS, LLC, AND ORDER TO SHOW CAUSE MSM Charters, LLC, n/k/a MSM, Inc. (“MSM”) timely filed Claim 27 against the Debtor in the amount of $987,450.78, later amended after confirmation of the Debt- or’s chapter 11 reorganization plan to the increased amount of $1,943,804.00. The Debtor formerly operated ...
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DECISION & ORDER BACKGROUND On July 11, 2006, Faith Ann Peaslee (the “Debtor”) filed a petition initiating a Chapter 13 case (the “Peaslee Case”), and George M. Reiber, Esq. (the “Trustee”) was appointed as her Chapter 13 Trustee. The Debtor filed a Chapter 13 Plan which provided, pursuant to Section 506(a)(1), 1 that the claim of General Motors Acceptance Corpora...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon Debt- or’s Objection to Claim Three (3) of ABN Amro Mortgage Group, Inc. After a hearing held on October 11, 2006, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. On April 7, 2006, Veda Danita Stukes (“Debtor”) filed for Chapter 13 relief under the Bankruptcy Abuse Preve...
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MEMORANDUM OPINION 1 Facts and Background: David Colecchia (“Colecchia”), counsel for the Debtors, seeks recovery of attorneys fees under § 330(a)(4)(B) of the Bankruptcy Code. Colecchia represented the Debtors in the underlying Truth in Lending (“TILA”) action, Younger v. Greentree Finance Co., Adv. No. 05-2403. 2 *92 On March 24, 2004, Debtors...
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ORDER GRANTING IN PART AND OVERRULING IN PART DEBTOR’S OBJECTION TO CLAIMS The Court conducted a hearing on June 13, 2006, on the Debtor’s Objection to Claim (the “Objection”) (CP #23). The Debtor objects to three unsecured claims, Claim Nos. 12 and 13, filed by LVNV Funding, LLC (“LVNV”) and Claim No. 7, filed by B-Line, LLC (“B-Line”). Neither B-Line nor LVNV are listed on the Debtor’s Sche...
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OPINION I. Introduction H.K. Porter Company, Inc. (“Porter” or “Debtor”) filed a voluntary Petition under Chapter 11 of the Bankruptcy Code on February 15, 1991 (the “Filing Date”). The filing was necessary because Porter had been involved in the manufacture, distribution and sale of products containing asbestos and had been named as a defendant in many lawsuits for wrongful death, person...
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ORDER FINDING THAT THE EXCEPTION TO STAY IN § 362(b) (22) DOES NOT APPLY TO DEBTOR The Court conducted a hearing on November 28, 2006, on Debtor’s Motion to Extend Stay Pursuant to 11 U.S.C. § 362(b)(22) (the “Motion”) 1 (CP# 17). The Court finds as follows: A. The Debtor resides in public housing owned and operated by the MiamiDade Housing Agency (“MDHA”). B. MDHA obtained a Final Judg...
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MEMORANDUM OPINION This matter comes before the Court on the Bank of Dawson’s objection to confirmation. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(L). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in conformance with Federal Rule of Bankruptcy Procedure 7052. Finding...
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MEMORANDUM OF DECISION In this adversary proceeding, plaintiff John T. Kendall, the duly appointed chapter 7 trustee, (the “Trustee”) seeks to avoid the pre-petition transfer by the debt- or (the “Debtor”) to his former wife, defendant Silvia Carbaat (“Silvia”), of his interest in their family home (the “House”) and in an unsecured promissory note (the “Note”) pursuant to 11 U.S.C. § 548(...
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MEMORANDUM DECISION ON DEFENDANTS’ MOTIONS TO DISMISS, TRANSFER OR STAY AND ON CHARTER’S MOTION FOR LIMITED INTERVENTION Introduction Defendants, with the exception of Carol Wu, ask the court to dismiss or stay this *805 adversary proceeding in favor of a patent infringement case currently pending before the District Court for the Eastern District of Texas. In the al...
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*783 MEMORANDUM OPINION On July 27, 2006, Russell Glenn Hurst (“Debtor”) filed for relief under the provisions of Chapter 13 of the United States Bankruptcy Code. The schedules, prepared by Kathy A. Cruz, Attorney, list U.S. Bank as an unsecured, nonpriority creditor on Schedule F. The schedules state that U.S. Bank’s claim, incurred in 2004, is a purchase money debt in the amount of $35,265.00....
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MEMORANDUM OF DECISION REGARDING MOTION FOR RELIEF FROM STAY (MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.) Before the Court is a stay relief motion seeking leave to foreclose a mortgage on *182 the Debtor’s residence. The Debtor opposes the motion. At issue is whether the entity seeking relief has the standing to do so and, if so, whether relief should be granted. ...
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ORDER SUSTAINING IN PART AND OVERRULING IN PART DEBTOR’S OBJECTION TO CLAIM The Court conducted a hearing on November 14, 2006, on the Debtor’s Objection to Claim No. 5 (the “Claim”) filed by Creditor, First Select (the “Objection”) (CP# 5). First Select did not file a response to the Objection nor did it appear at the November 14th hearing. The Debt- or argues that the Claim should be strick...
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Opinion Introduction. The Plaintiffs filed in this Court a fifteen count complaint against the debtor corporations, related entities, and their principals. The Defendants have filed a motion to withdraw the reference of this adversary proceeding from the Bankruptcy to District Court. The District Court has remanded the motion to the Bankruptcy Court with a limited instruction: this Court must...
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MEMORANDUM DECISION I. PRELIMINARY STATEMENT The Plaintiff, Robert Stein (“Stein”), acting pro se, commenced an adversary *546 proceeding on December 15, 2005, to determine whether the Debtors should receive a discharge and whether a debt due and owing to him was nondischargeable. The Court conducted various pre-trial proceedings in this Adversary Proceedi...
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Veronica T. Jumpp (the “Debtor”) appeals from the bankruptcy court’s June 23, 2006, order denying the Debtor’s Motion for Determination and Declaratory Judgment as to Continuation and Existence of the Automatic Stay (“Motion for Determination”) and Motion to Reimpose the Automatic Stay, which had the effect of lifting the automatic stay in favor of Chase Home Finance, LLC (“Chase”). The bankruptcy...
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This matter is on appeal from an order of the bankruptcy court dismissing an adversary proceeding filed by Antonia Burrell-Richardson (the “Debtor”) against the Massachusetts Board of Higher Education wherein the Debtor sought a declaration that her obligation to the Commonwealth *799 of Massachusetts (the “Commonwealth”), arising from a student loan obligation reduced to judgment prepetition, ...
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MEMORANDUM DECISION I. Preliminary Statement This matter comes before the Court pursuant to the “Objection to Exemptions and Notice of Bar Date” and “First Amended Objection to Exemptions and Notice of Bar Date” (the “Objection to Exemptions”) filed by the Chapter 7 Trustee, Charles Riley, on January 2, 2006. The Trustee objects to the Debtors’ claimed homestead exemption in real property l...
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DECISION & ORDER Each of two mortgagees has filed an ex parte motion for an order confirming that the automatic stay has been terminated under 11 U.S.C. § 362(c). For the reasons stated hereafter, these motions are denied, but without prejudice to applications for similar relief after a hearing on notice to the debtor and his counsel and to the trustee. On May 31, 2006...
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DECISION ON MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION This adversary proceeding was commenced on March 17, 2006 with the filing *729 of a complaint by Mark S. Stickel, Trustee of the Huffy Recovery Trust (“Trustee”), against several Canadian defendants. The multiple-count complaint seeks damages and equitable relief under a variety of theories of which fraudulent t...
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MEMORANDUM OF DECISION Before the Court in each of the above-captioned cases is a “Motion to Enlarge Time for Filing Appeal/Reconsideration” (the “Extension Motion(s)”) filed by Attorney Francis Lafayette (“Attorney Lafayette”), counsel for the debtor. Each Extension Motion states, in full: Now comes debtor who moves the Court for an order enlarging time for filing appeal/reconsideration re...
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MEMORANDUM OPINION Before the Court is the Chapter 7 Trustee’s objection to Debtors’ claim of exemption in real and personal property under § 44 — 13—100(a)(1) of the Official Code of Georgia Annotated (“O.C.G.A.”) 1 The Court took the matter under advisement following the hearing held on April 26, 2006. The parties have submitted briefs and a stipulation of additional facts was filed with ...
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MEMORANDUM DECISION This Chapter 13 bankruptcy case came before the Court for hearing on December 6, 2006, on the Debtors’ motion seeking sanctions against Washington Mutual for violating the automatic stay. 1 (Doc. 28). The Debtors were present in court and by counsel F. Patrick Loftin. Washington Mutual did not appear. I. FACTS The Debtors filed a joint petition in bankruptcy pursua...
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MEMORANDUM OPINION Before the Court is creditor Nuvell Credit Corporation’s (hereinafter, “Nuvell”) objection to the confirmation of Debtor’s Chapter 13 Plan wherein Nuvell’s secured claim in Debtor’s 2005 Chevrolet *910 Silverado would be bifurcated into secured and unsecured portions and “crammed down.” At issue is whether Nuvell holds a purchase money security interest...
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MEMORANDUM OPINION ON (1) DEFENDANT’S AMENDED MOTION TO DISMISS COMPLAINT FOR FAILURE TO STATE A CLAIM; AND (2) PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT [Docket Nos. 7 and 8] I. INTRODUCTION On July 11, 2006, the Court held a hearing on: (1) the Defendant’s Amended Motion to Dismiss for Failure to State a Claim; and (2) the Plaintiffs’ Motion for Leave to Amend Complaint. The ...
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MEMORANDUM OPINION The United States Trustee for the Northern District of Illinois (the “Trustee”) has moved to dismiss this case under 11 U.S.C. § 707(b)(1) as an abuse of the provisions of Chapter 7 of the Bankruptcy Code. The Trustee asserts that the debtor, Ernestine Randle, has income as calculated under § 707(b)(2) (the “means test”) high enough to create a presumption of abuse....
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OPINION The chapter 7 trustee (“Appellant”) appeals an order of the bankruptcy court overruling his objection to the debtors’ claim of exemption. The bankruptcy court held that Shah M. Alam’s investment funds originating from a settlement of litigation against his disability insurance carrier were exempt in their entirety. For the reasons set forth below, we affirm the bankruptcy court’s ...
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Decision and Order Overruling Objection to Exemptions CAME ON for hearing the foregoing matter. The facts are not in dispute. The *636 Debtor, Sandra Luella Battle, filed this chapter 13 petition on March 10, 2006, claiming the federal exemptions of section 522(d) of the Bankruptcy Code. See 11 U.S.C. § 522(d). The Trustee objected to these exemptions, noting that the Debtor has lived in mo...
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OPINION This is an interlocutory appeal in which a student loan creditor appeals from an order denying its motion to dismiss an adversary proceeding brought by the debt- or, seeking a determination that her student loan debts were dischargeable in her 1999 chapter 71 bankruptcy case. Because we conclude that the consolidation loan made postpetition extinguished the debtor’s liability on prepetitio...
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ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT BY DEFENDANT DONALD HARRINGTON, D/BIA HARRINGTON CONSTRUCTION COMPANY This matter came before the Court on cross motions for summary judgment filed by the plaintiff, James T. Ward, Sr., the court-appointed trustee in the above-captioned bankruptcy case (the “Plaintiff’), and the defend...
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MEMORANDUM These chapter 13 and chapter 7 cases are before the court on motions to dismiss pursuant to 11 U.S.C. § 109(h)(1) by the chapter 13 trustee and the United States trustee, respectively. Both cases present the issue of whether 11 U.S.C. § 109(h)(1) requires a debtor to receive a credit counseling briefing at least one day before filing a bankruptcy petition or simply prior to...
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MEMORANDUM OPINION RE: MOTION TO DISMISS CASE PURSUANT TO 11 USC § 707(b) This matter comes before the Court on the following pleadings: (1) a “Motion of the United States Trustee to Dismiss Pursuant to 11 U.S.C. Section 707(b)(1)” [docket # 27] (the “Initial Motion to Dismiss”); (2) debtor’s response to the Initial Motion to Dismiss [docket # 36]; (3) a “Supplement to Motion of the Unite...
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ORDER This adversary proceeding is before the Court on defendant’s motions for summary judgment. (Docket Nos. 13 and 19). Defendant argues that he is entitled to a judgment as a matter of law on plaintiffs complaint objecting to the debtor’s discharge under 11 U.S.C. § 727(a) and to the dischargeability of a claim for fraud under 11 U.S.C. § 523(a)(2). This is a core proceeding under ...
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MEMORANDUM OPINION I. INTRODUCTION Before me is the objection by Christina M. Sims (“the Debtor”) to the proof of claim filed by Citifinancial Mortgage Company, Inc. (“Citifinancial”). The proof of *220 claim is based upon a mortgage loan between Citifinancial and the Debtor. Resolution of this contested matter requires the application of fundamental principles of co...
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ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON COMPLAINT SEEKING SUBORDINATION OF CLAIM ASSERTED BY DIANA GARMENDIA PURSUANT TO 11 U.S.C. § 510(b) THE MATTER came before the Court on August 10, 2006 at 2:00 p.m. in Miami, Florida on the Motion of Plaintiff Banco Espirito Santo International, Ltd. (“BE-SIL”) for partial summary judgment (the “Motion”) (C.P.# 7) on Cou...
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MEMORANDUM AND ORDER FOLLOWING TRIAL ON OBJECTION TO CONFIRMATION OF DEBTOR’S THIRD AMENDED PLAN On November 20 and 21, 2006, trial was held on objections to confirmation of the Debtor’s Third Amended Chapter 12 Plan of Reorganization (hereafter “Plan”). The Debtor, Kelly James Torline (hereafter “Debtor”) was present and represented by Elizabeth A. Carson of Bruce, Bruce & Lehman, LLC. C...
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OPINION AND ORDER Although the procedural posture of this complex multi-million dollar' case is far more complicated than the following statement thereof, the Court deems the matter before it to be this: Does a Chapter 7 Trustee get past a Rule 12(b)(1) Motion to Dismiss that is based on the governing Second Circuit case law of Wagoner and its progeny,1 simply by alleging that one or more speci...
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*393 MEMORANDUM I. INTRODUCTION The matter before the Court is “Defendant Mid-Continent Casualty Company’s Motion to Dismiss the Plaintiffs Complaint for Declaratory Judgment for Lack of Subject Matter Jurisdiction, [and] Motion to Lift or Modify Automatic Stay.” The Plaintiff and Defendants West Marine Products, Inc. and Unites States Fire Insurance Company objected to the ...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the “Chapter 7 Trustee’s Second Set of Objections to Claims” (the “Objection to Claims”). Mark G. DeGiacomo, the Chapter 7 Trustee (the “Trustee”) of the debtors, Jeffrey L. Allen (“Allen”) and Rita M. Allen (collectively, the “Debtors”) objects to the amended priority proof of claim filed by Allen on March 27, 2006 asserting ...
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OPINION DENYING UNITED STATES TRUSTEE’S MOTION TO DISMISS This matter came before the Court on the United States Trustee’s Motion to Dismiss Debtor’s Chapter 7 bankruptcy. The United States Trustee seeks to dismiss the case pursuant to 11 U.S.C. §§ 707(b)(2) and 707(b)(3). A trial was held on September 25, 2006. At the conclusion of the trial, the Court took the United States Trustee’s Motion...
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MEMORANDUM OF OPINION Introduction Navigator Gas Transport PLC, five of its ship-owning subsidiaries, and its parent holding company, Navigator Holdings PLC (collectively “the Debtors”), filed for Chapter 11 protection on January 26, 2003. The Debtors’ business involved the ownership and operation of vessels which were *83 utilized principally in the shipping of liqu...
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OPINION INTRODUCTION Following a default prove-up hearing concerning the nondischargeability of a $715 loan debt, the bankruptcy court denied the plaintiff-lender’s motion for entry of a default judgment, ruled the debt to be discharged, and dismissed the adversary proceeding. On appeal, the lender maintains only that, where a prima facie case had been pled, t...
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OPINION ON COMPLAINT On June 21, 2006, the court held a trial on the Trustee’s Second Amended Adversary Complaint to Set Aside Conveyance of Property as Fraudulent Conveyance and for Turnover. The chapter 7 trustee, Randy L. Royal, appeared with his counsel Anthony Wendtland. The defendants, the Probate Estate of Norman L. Sanford (Sanford Estate), its personal representatives and ben...
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MEMORANDUM DECISION REGARDING MOTION FOR PARTIAL SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT Sam J. Alberts, trustee for the DCHC Liquidating Trust (the “Trust”) and plaintiff in this adversary proceeding, seeks to avoid and recover certain allegedly fraudulent transfers (the “Michael Reese Transfers”) from Michael Reese Medical Center Corporation (“Michael Reese”), as well...
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MEMORANDUM DECISION RE TRUSTEE’S SUPPLEMENTED OBJECTION TO CLAIM OF HSBC AUTO FINANCE The chapter 13 trustee has filed an objection (Docket Entry No. 39) to the $23,125.81 proof of claim of HSBC Auto Finance (“HSBC”) (which asserted a secured claim of that amount in a motor *3 vehicle), asking that it be treated as unsecured instead of secured, and has supplemented her objection after the c...
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MEMORANDUM ON MOTION TO DISMISS INVOLUNTARY PETITION Before the court is the question of whether the Involuntary Petition filed against the Debtor on June 22, 2006, must be dismissed because it, together with the Alias Summons in Involuntary Case issued on October 11, 2006, were not served on the Debtor in the manner required by Rule 1010 of the Federal Rules of Bankruptcy Procedure. The Debtor ...
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MEMORANDUM OPINION This matter came on for hearing on September 5, 6, 11, 14 and 15, 2006 for the confirmation of the amended and supplemental joint Chapter 11 plan of reorganization. For the reasons set forth below, the court finds that the proposed plan of reorganization is not confirmable under 11 U.S.C. § 1129. I. Background Facts A. History of the Debtor Or...
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MEMORANDUM DECISION REGARDING REQUEST FOR ATTORNEYS FEES UNDER BANKRUPTCY CODE SECTION 506(b) Before the Court is a motion by secured creditor The Vineyard of Saratoga (“Creditor”) for allowance of post-petition attorney’s fees pursuant to Bankruptcy Code § 506(b). In its motion, Creditor requests an allowance of $21,365.29 1 in attorney’s fees and costs. Debtor objects to the ...
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ORDER This matter comes before the Court on a Motion to Dismiss filed by Charles Cath-cart and Derivium Capital (USA), Inc. and a Motion to Dismiss filed by Scott Cath-cart (the moving parties are collectively referred to herein as “Movants” and their respective motions are collectively referred to herein as “Motions”). Kevin Campbell (“Plaintiff’) opposes the Motions. The Court has juris...
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ORDER This matter comes before the Court on Motion to Dismiss or in the Alternative for Summary Judgment (the “Motion”) filed by Veristeel Inc. (“Veristeel”). Plaintiff, Kevin Campbell, Chapter 7 Trustee of the Estate of Derivium Capital, LLC (the “Trustee”), filed an objection to the Motion (the “Objection”). This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This...
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*200 ORDER This matter comes before the Court upon the Application for Authorization to Employ Nexsen Pruet Adams Kleemeier, LLC (the “Application”) as Special Counsel to the Chapter 7 Trustee and AGM II LLC’s objection (the “Objection”) thereto. The Objection seeks denial of the Application. After hearing the parties’ arguments, the Court makes the following findings of fact and...
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MEMORANDUM DECISION I. INTRODUCTION This matter comes before the Court pursuant to an “Objection to- Property Claimed Exempt” (“Objection”) filed by Anthony Mason, the duly appointed Chapter 7 trustee (“Trustee”) in the above-captioned case, on May 25, 2005. On June 14, 2005, the Debtors filed their “Debtors’ Response to Trustee’s Objection to Claim of Exemption” (“Response”). After various p...
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ORDER This matter came before the Court on the Motion to Dismiss (Doc. No. 4) (“Motion”) filed by the Defendant United States of America through its agency the Environmental Protection Agency (“EPA” or “Defendant”) seeking dismissal of the Complaint (Doc. No. 1) (“Complaint”) filed by Cheryl Jane Followell, as Executrix of the Estate of Betty Jean Gurley, and William M. Gurley, the Pl...
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MEMORANDUM OPINION This contested matter is before the Court on the objections to debtor’s claimed *541 homestead exemption filed by the chapter 13 trustee and creditor Paul Letterman. 1 The Court conducted an evidentiary hearing on June 14, 2006 and at the conclusion thereof directed debtor to amend Schedule C and to provide a description and declaration of that portion of the 1.4 acre t...
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MEMORANDUM OPINION This matter came before the Court on the Complaint to Determine Dischargeability of a Debt to Plaintiff/Former Wife Pursuant to a Final Judgment of Dissolution of Marriage (“Complaint”) 1 filed by Anna L. Hall (“Plaintiff’), against Clyde William Bowers, the Debtor herein (the “Debtor”). The Plaintiff seeks to have certain debts arising from the parti...
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ORDER This matter came before the Court on the Motion to Invoke Automatic Stay (Doc. No. 21) (“Motion”) filed by Christopher Alan Schroeder and Karen Marie Schroeder, the Debtors herein (collectively, the “Debtors”). A hearing on the Motion was held on October 17, 2006 at which the Debtors, their counsel, counsel for Saxon Mortgage Services, Inc., and the Chapter 13 Trustee appeared. ...
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ORDER This matter came before the Court on the Motion to Dismiss Chapter 13 (Doc. No. 94) filed by Bonnie Kollar, the Debtor herein (“Debtor”), seeking dismissal of this case pursuant to 11 U.S.C. § 1307(b). An evidentiary hearing was held on September 19, 2006 on the Motion, the Trustee’s Motion to Dismiss Case Pursuant to Section 109(e) of the Bankruptcy Code (Doc. No. 49) filed by ...
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MEMORANDUM OPINION 1 Before the Court is the Motion of Acres of Diamonds, L.P. (“Acres”) for summary judgment. Also pending is the Motion in limine filed by Acres to exclude the plaintiffs expert valuation report and related testimony and the Motion of the IT Litigation Trust (the “Trust”) seeking disqualification of Acres’ expert witness. For the reasons set forth below, t...
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MEMORANDUM OPINION This case involves an above-median debtor whose financial circumstances have changed since filing her bankruptcy petition. Before the Court is the Chapter 13 trustee’s motion to dismiss Erin M. Teixeira’s (the “Debtor”) bankruptcy case on the ground that her Chapter 13 plan payments are less than her “projected disposable income.” At a December 12, 2006, hearing, the Court ...
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MEMORANDUM OPINION AND ORDER This matter came before the Court for trial on November 16, 2006, the Honorable Douglas O. Tice Jr., Chief Judge, presiding. Owaiian M. Jones, Esq., appeared on behalf of the plaintiff, Barbara Triplett; Rand L. Gelber appeared on behalf of the defendant, Educational Credit Management Corporation (“ECMC”); and Robert P. McIntosh, Assistant United States Attorney, app...
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MEMORANDUM OPINION FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING ORDER DENYING MOTION FOR TURNOVER & ACCOUNTING (doc #38), AND CONCERNING CONFIRMATION OF CHAPTER 13 PLAN (doc # 9) Debtor filed a petition commencing this chapter 13 case on August 1, 2006, and filed his chapter 13 plan on August 15, 2006 (docket # 9). On September 27, 2006, the chapter 13 trustee recommended that t...
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MEMORANDUM OPINION ON MOTIONS TO DISMISS AND MOTION FOR SUMMARY JUDGMENT In the instant adversary proceeding, William Kaye, Trustee of the Avado Brands, Inc. Litigation Trust (“Trustee”) has filed a Complaint against several of the former officers and directors of the Debtors (“Complaint”). In his Complaint, the Trustee refers to the Defendants who were members of the board of directo...
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MEMORANDUM DECISION The matter before the Court is the Motion for Contempt filed June 20, 2006 in which the Debtor requests the Court enter an order and injunction against Stephanie Skeen Parks, the Debtor’s former spouse, and her attorney to stay the proceedings against the Debtor currently pending in the Circuit Court of Russell County and to *596 permanently enjoin Ms....
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MEMORANDUM OPINION When Emeline Wilson bought a parcel of real estate in August 2004, she signed three deeds of trust to secure money that had been advanced in connection with the purchase. One of those — -in favor of David L. and Vanessa M. Moir — was recorded approximately an hour before the deed by which she acquired title to the property. The other two — one in favor of 1 st Mariner B...
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ORDER DENYING MOTION FOR RELIEF FROM STAY AND GRANTING LENDER’S REQUEST FOR ADEQUATE PROTECTION This matter came before the Court on the Motion for Relief from Stay and/or for Adequate Protection (the “Motion”) filed by Accredited Home Lenders, Inc. (“Lender”). For the reasons set forth in this Order, the Motion for Stay Relief is DENIED, however, Lender is entitled to, and the Court will gra...
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MEMORANDUM OF DECISION INTRODUCTION This matter comes before the Court nearly four years after JZ, LLC (“Debt- or”) confirmed its chapter 11 plan, and more than three years after the case was closed. The present dispute flows from post-confirmation state court litigation brought by the reorganized Debtor. Defendants in that action, Diamond Z Trailer, Inc., and two of its officers (co...
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MEMORANDUM OPINION FINDINGS AND CONCLUSIONS REGARDING DISMISSAL OF ADVERSARY PROCEEDING WITH PREJUDICE In this adversary proceeding, the Trustee seeks to recover $936,741.35 paid by the Debtor to Homrich, Inc. (“Homrich”) by wire transfer prior to the filing of the bankruptcy case. The Trustee alleges that the payment was a preference that the Trustee can recover under 11 U.S.C. § 547...
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ORDER This matter came before the Court on the Trustee’s Objection to Debtor’s Claim of Exemption 1 (“Objection”) filed by Kenneth D. Herron, Jr., the Chapter 7 Trustee herein (“Trustee”), in which the Trustee objects to the homestead exemption claimed by Mary L. Edwards, the Debtor herein (“Debtor”). An evidentiary hearing on the Objection was held on July 6, 2006, at whic...
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ORDER This matter came before the Court on the Motion for Sanctions Against General Electric Capital Corporation for Violating § 1141, the Permanent Injunction Under § 524 and Injunctions in the Debtor’s Confirmed Plan of Reorganization (“Motion”) 1 filed by Dynamic Tours & Transportation, Inc., the reorganized Debtor herein (“Debtor”) against General Electric Capital Corpo...
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Memorandum Opinion Before the Court is the Complaint of International Fidelity Insurance Co. (“International”) seeking an Order denying the discharge of Debtors’ obligation to it under bonds issued to secure payment and performance by Metro UTC (“Metro”) of construction contracts with various municipalities. Debtor Anthony J. Marques (“Anthony”) is the owner and principal of Metro. Bo...
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OPINION In the above-captioned adversary proceeding, the plaintiffs Bryon Stevens and Mayolia Stevens assert that the defendants — joint chapter 7 debtors Dennis Antonious and Peggy Antonious — owe them a non-dischargeable debt pursuant to 11 U.S.C. § 523(a)(2) and (a)(6). 1 The defendants maintain that any debt owed is dis-chargeable. As will be discussed, the plaintiffs ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Before this Court is a motion filed by Reliance Insurance Company (In Liquidation) and its Statutory Liquidator (collectively, “Reliance”) 1 on March 23, 2006, seeking an “Order that this Court Lacks Jurisdiction over Reliance’s Claim against Agway, Inc., General Agency, Inc., Brubaker Agronomic Consulting Serv...
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Opinion Before the Court is the Motion of the United States Trustee (the “Trustee”) to Dismiss the above-captioned bankruptcy case pursuant to 11 U.S.C. § 707(b) (the “Motion”). At issue is whether Debtor *654 may deduct $836 from his current monthly income to account for payments on two loans from Debtor’s 401(k) plan and therefore avoid or, if not avoided, rebut the pre...
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OPINION MEMORANDUM DECISION Currently before this Court is the motion filed by the above-captioned Debtor *53 seeking the entry of an order pursuant to Section 365(a) of Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”), rejecting a settlement agreement with the City of South Amboy (the “City”) previously reached in related state and fe...
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MEMORANDUM OPINION THIS CASE was before the court on the motion of Union Bank and Trust Company to quash a memorandum of lis pendens. The Cadle Company obtained a judgment against Charles Vurtus Rice in state court prior to the filing of the petition in bankruptcy in this case. It thereafter, in an effort to enforce the judgment, sought to pierce the corporate veil of Superior Constru...
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OPINION This matter is before the Court on the motion of the Defendant, Global Financial Credit, LLC (“Global”), to dismiss the Ad *220 versary Complaint for Violation of the Automatic Stay filed by Richard B. Dean and Brenda S. Dean (“Debtors”). Global asserts that the Complaint should be dismissed for the following reasons: (1) the Debtors’ claim for violation of the au...
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MEMORANDUM DECISION AND ORDER ON APPLICATION OF SPECIAL COUNSEL, BERLINER COHEN, FOR FINAL ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES Introduction Before the court is the application of Berliner Cohen, special litigation counsel to the chapter 11 debtor, Dimas LLC, for final allowance of compensation in the amount of $727,673.50 and expense reimbursement of $34,347.1...
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MEMORANDUM The chapter 13 debtor, Cheryl A. Randall, has commenced an adversary proceeding against defendants Bank One, N.A. and Bankers First Mortgage Co. 1 Defendant Bank One has filed a motion to dismiss this proceeding pursuant to Fed. R. Bankr.P. 7012, incorporating Fed. R.Civ.P. 12(b)(1) and (b)(6). As will be discussed below, Bank One contends that the claims agains...
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AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW 1 On August 21, 2006 (the “Petition Date”), Radnor Holding Corp. and its affiliated chapter 11 debtors (“Debtors” or “Radnor”) commenced the above-captioned chapter 11 cases. On September 22, 2006, the Court entered its “Final Order (1) Authorizing Debtors (A) to Obtain Postpe-tition Financing ...” (the “DIP Financing Order”)....
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REASONS FOR DECISION This matter comes before the Court on Cottonport Bank’s Motion for Relief from Stay and Abandonment for the Limited Purpose of Obtaining Right of Way and the debtors’ Opposition. This is Core Proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (G), (M) and (O). This Court has jurisdiction pursuant to 28 U.S.C. § 1334 and by virtue of the reference by the District Court pursuant ...
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MEMORANDUM DECISION AND ORDER ON DEBTOR’S MOTION TO CONTINUE THE AUTOMATIC STAY AS TO ALL CREDITORS Introduction Before the court is the debtor’s motion for continuation of the automatic stay as to all creditors pursuant to § 362(c)(3). For the reasons set forth, the motion is granted. Factual Background Eleanor Elliott-Cook, the debtor, has been a social worker wit...
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ORDER THIS MATTER comes before the Court on Plaintiffs’ motion for summary judgment. Plaintiffs commenced this adversary proceeding, seeking to except their judgment from discharge under 11 U.S.C. § 523(a)(4), on the basis that their debt arises from Ms. Sukut’s company’s nonpayment of employee benefits owed under a collective bargaining agreement. Plaintiffs contend that their prior federal cour...
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MEMORANDUM OPINION AND ORDER ON THE OBJECTION TO THE DEBTORS’ HOMESTEAD EXEMPTION FILED BY THE CHAPTER 7 TRUSTEE This case came on for hearing on competing Motions for Summary Judgment on the Trustee’s Objection to the Debtors’ Homestead Exemption, filed by the Chapter 7 trustee and the debtors (Document Nos. 36 and 37). In addition to the reasons stated on the record and recorded in open cou...
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ORDER THIS MATTER comes before the Court on the Trustee’s Motion to Compel Debtors (“Motion”) and the Debtors’ Objection and supplemental brief. In his Motion, the Trustee seeks to compel the Debtors to allow inventory and appraisal of their household goods and jewelry. Underlying this dispute is the question of whether a trustee may seek to administer property claimed as exempt if the tr...
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MEMORANDUM OPINION AND DECLARATORY JUDGMENT This proceeding came on for trial on the plaintiffs complaint seeking declaratory relief. Various defendants have counterclaimed against the debtor and cross-claimed against each other. Cindy Moyer and Ryan Murphy appeared on behalf of the plaintiff. James Rubenstein and Kevin Busch appeared on behalf of defendant M & I Marshall and Ilsley B...
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MEMORANDUM OPINION ON THE MOTION OF THE OFFICIAL EMPLOYMENT-RELATED ISSUES COMMITTEE OF ENRON CORP. TO COMPEL KEVIN PRESTO TO ANSWER DEPOSITION BY WRITTEN QUESTIONS This Memorandum Opinion addresses a single issue: if a motion to compel discovery fails to contain a certification required by Rule 37(a)(2)(A), should the motion be dismissed? I. PROCEDURAL BACKGROUND AND FINDINGS OF FACT 1. ...
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MEMORANDUM OPINION ON: (1) INDIAN CAVE PARTNERSHIP’S OBJECTION TO CONFIRMATION OF PLAN OF AUGUST 18, 2006; AND (2) INDIAN CAVE PARTNERSHIP’S MOTION UNDER RULE 9023 CONFIRMATION OF PLAN OF AUGUST 18, 2006 I. INTRODUCTION Indian Cave Park Partnership (Indian) objects to the Amended Plan of Conrad *297 Mark Hence (the Debtor). Indian is the mortgage creditor on the Debt...
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MEMORANDUM OPINION BACKGROUND Debtors filed bankruptcy under chapter 7 on December 23, 2005, after the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). The United States Trustee (UST) reviewed Debtors’ filing and determined that, while a presumption of abuse pursuant to 11 U.S.C. § 707(b)(2) 1 did not arise, the case should nonetheless be dis...
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MEMORANDUM OF DECISION INTRODUCTION Richard E. Crawforth is the Trustee in the chapter 7 case of Robert and Jan Larison, and he has filed and noticed for approval a proposed final accounting and distribution. Doc. Nos. 33, 34. H & H Enterprises, LLC (“H & H”) filed an objection. Doc. No. 37 (“Objection”). The Objection was taken under advisement on December 15, 2006, after...
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MEMORANDUM This adversary proceeding is before the court upon the Complaint filed by the Plaintiff, Sandra Ayers, on October 14, 2005, objecting to the discharge of the Defendant/Debtor under 11 U.S.C.A. § 727(a)(2), (3), and/or (4) (West 2004), or in the alternative, seeking a determination of the nondischargeability of a debt under 11 U.S.C.A. § 523(a)(2)(A) and/or (6) (West 2004). ...
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MEMORANDUM DECISION SUSTAINING OBJECTION TO CONFIRMATION OF PLAN Before the Court is the Chapter 13 Trustee’s Amended Objection to Confirmation of Plan (“Objection”). The debtor, Catalin Pora (“Debtor”), filed his Chapter 13 plan (“Plan”) on October 15, 2005. The Chapter 13 Trustee (“Trustee”) filed the Objection on January 17, 2006. The Trustee in this case is Devin Der-ham-Burk. Cathleen ...
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ORDER THIS MATTER comes before the Court on the parties’ briefs as to whether this Court should give collateral estoppel effect to a prior state court judgment entered against the Defendant for fraud. Plaintiffs commenced this adversary proceeding, seeking to except their judgment debt from discharge under 11 U.S.C. *837 § 523(a)(2). They contend that the state court judgment...
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DECISION & ORDER Since October 17 of 2005, section 521(a)(1)(B)(iv) of the Bankruptcy Code has imposed upon debtors a duty to file “copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition, by the debtor from any employer of the debtor.” Further, to enforce this duty, Congress adopted 11 U.S.C. § 521(i)(1). Subjec...
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MEMORANDUM OPINION This matter comes before the court on the Chapter 7 Trustee’s (Trustee) objection to OSU Federal Credit Union’s (OSU) proof of claim # 1. After hearing, the parties submitted briefs and have submitted the matter on the record. Facts: The following facts are undisputed: Debtor filed her Chapter 7 petition, herein, on October 14, 2005. 1 OSU ...
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OPINION In the above-captioned consolidated adversary proceedings 1 , the plaintiffs Wachovia Bank, N.A. and Howard Glassman, the chapter 7 trustee, assert that the defendants, debtors Carl Spitko and Elizabeth Goetz-Spitko, should be denied their bankruptcy discharge pursuant to 11 U.S.C. § 727(a)(2)(A), (3), (4), and/or (5). The defendants oppose such relief. In essence,...
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MEMORANDUM OPINION Before the Court is the Motion to Dismiss With Prejudice the above captioned Chapter 13 case (“Dismissal Motion”) filed by the United States of America through the Department of Housing and Urban Development (“HUD”). The Dismissal Motion is the latest of a series of legal actions in this and the United States District Court for the Eastern District of Pennsylvania (the “Distri...
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Memorandum Opinion Before the Court is the Motion of Lawrence Lichtenstein (“Plaintiff’ or “Trustee”), plaintiff in the above-captioned adversary proceeding and the Chapter 7 trustee of the bankruptcy estate of Computer Personalities Systems, Inc. (“CPSI”) 1 for Summary Judgment (the “SJ Motion”) against the two remaining defendants Chu-Wen Tseng (“Tseng”) and Fremont Bonav...
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ORDER RE: MOTION FOR SUMMARY JUDGMENT This matter came before the undersigned on December 1, 2006 on the Haas Defendants’ Motion for Summary Judgment on Claims of Plaintiff Larry S. Eide, Chapter 7 Trustee. Trustee Larry Eide appeared as Plaintiff. Attorney William McCartan appeared for Defendants Urban and Patricia Haas. Attorney Jim Heilman appeared for Third Party Defendant Roger Waldn...
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MEMORANDUM DECISION RE COMPLAINT The matter before the court is the final trial of the trustee’s complaint to determine the validity, priority or extent of liens and interests in certain property. He also objects to certain claims. Trial was held May 10, 2006 in Fort Dodge. Plaintiff Larry S. Eide appeared on his own behalf. Defendants Glenn Litwiller and Ethel Litwiller were represented by Rob...
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MEMORANDUM OPINION Presently at issue before the Court is the discharge of approximately $1 million in debt owed by Curtis L. Turner (“Turner”) to Richard C. Bailey (“Bailey”). The case is one involving the failed sale of a business. Boiled to its essence, what we have here is the tale of two financial statements, both given to Bailey by Turner at roughly the same time. One statement show...
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AMENDED OPINION REGARDING OBJECTION TO CONFIRMATION BY DAIMLERCHRYSLER FINANCIAL SERVICES LLC This case requires the Court to decide the following question raised by the 2005 amendments to the Bankruptcy Code: Does the so-called “hanging paragraph” found at the end of 11 U.S.C. § 1325(a)(9) 1 permit a Chapter 13 debtor to surrender a vehicle to the secured creditor, as part of a Chapter 13 pl...
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MEMORANDUM OPINION ON DEBTOR’S MOTION TO VOID A JUDICIAL LIEN PURSUANT TO 11 U.S.C. § 522(f) I. INTRODUCTION Lynn B. Anderson (the Debtor) is an individual debtor who filed a voluntary petition under Chapter 7 of Title 11 of the United States Code on October 11, 2005. On February 1, 2006, the Debtor moved to void a judicial lien on her home at 7419 West Suddley Castle in Houston, Texas, 77095...
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REASONS FOR DECISION This matter is under advisement on the Plaintiffs Second Motion to Compel Answers to Interrogatories and Request for Production and for Attorney’s Fees and Costs. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (E) and (0). This Court has jurisdiction pursuant to 28 U.S.C. § 1334 and by reference from the District Court, pursuant to Uniform District Co...
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ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT This matter came before the Court on October 11, 2006 at 10:30 a.m. on Motion by the Plaintiff, Casino Palace, Inc. d/b/a Caesars Palace (the “Casino”) for Partial Summary Judgment (the “Motion”). Because the Court finds there are disputed issues of material fact as to whether Florida or Nevada law applies in this matter, a...
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ORDER DENYING MOTION TO EXTEND AUTOMATIC STAY The debtor’s motion to Extend the § 362(a) Automatic Stay as to All Creditors came on for hearing before the court on the 13th day of December 2006, at 9:00 a.m. David Berry of Berry & Tripp appeared on behalf of the debtor. On November 20, 2006, the debtor filed this voluntary Chapter 13 bankruptcy proceeding. This debtor was a debtor in...
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MEMORANDUM OPINION This matter comes before the Court on the motion of the Chapter 13 Trustee (Doc. # 39) to examine the transactions of the Debtors (“the Caises”) with their former attorney, Ginger Knight (“Ms. Knight”). The Court has received and reviewed the Caises’ verified statement detailing the transactions they had with Ms. Knight, as well as affidavits of Ms. Knight and her employee pa...
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OPINION AND ORDER This case came before the court for trial on January 10,11 and 12, 2005, and February 9 and 10, 2005. At issue is the validity and allowed amount of the proofs of claim filed by defendants Robert Hatton Gotay and Maria de los Angeles Rentas (“the Hattons”) in the debtors’ bankruptcy cases, which are based upon a series of financial transactions entered into between the p...
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MEMORANDUM OPINION DETERMINING DEBT TO BE NONDIS-CHARGEABLE AND ASSESSING PUNITIVE DAMAGES This opinion stands for the following propositions: (1) that certain debts that arose as a result of undue influence are nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A), where the plaintiff proves by a preponderance of evidence that undue influence was exerted fraudulently; and (2) that in...
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OPINION Procedural and Factual History Before the Court is the objection of Sovereign Bank, F.S.B. (“Sovereign”) to the confirmation of the chapter 13 plan filed by Carol Lynn Finnegan (“Debtor”). Sovereign, which filed a proof of claim for $22,577.68 secured by a 2004 Dodge Grand Caravan, objects to Debtor’s proposal to cram down its claim to the value of the collateral. Debtor’s chapter...
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ORDER This adversary proceeding involves the question of whether the defendant trusts can appear as pro se litigants. The Court concludes that they cannot. The plaintiff Chapter 7 Trustee seeks, among other things, to avoid certain transfers and to recover three pieces of real property for the bankruptcy estate. The properties are 230 Woodward Avenue and 625 Atwood Street, both located in Atlan...
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MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT This proceeding came for hearing on September 13, 2006 on the plaintiffs motion for summary judgment against defendant Household Industrial Finance Company. 1 Barbara M. Ross appeared for the plaintiff and Eric D. Cook appeared for Household. This court has jurisdiction over this adversary proceeding pursuant to 28...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT WITH RESPECT TO NON-CORE PROCEEDINGS AS TO WHICH THE PARTIES HAVE CONSENTED TO THE ENTRY OF JUDGMENT AND REPORT AND RECOMMENDATION WITH RESPECT TO NON-CORE PROCEEDINGS AS TO WHICH THE PARTIES HAVE NOT CONSENTED TO ENTRY OF JUDGMENT *113 INTRODUCTION...............................................................114 F...
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MEMORANDUM DECISION The matter before the Court is the Motion for Approval of a Reaffirmation Agreement filed June 20, 2006 in which the Debtors request the Court enter an order approving the reaffirmation agreement executed by the Debtors and Salem VA Medical Center Federal Credit Union pursuant to 11 U.S.C. § 524(d). For the reasons noted below, the Court concludes that the Motion should be...
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MEMORANDUM OPINION This matter is before the court on the chapter 7 trustee’s Final Report and Account with Compensation. A hearing was held on September 19, 2006. The chapter 7 trustee, H. Jason Gold, requests approval of $64,878.89 as compensation. The United States Trustee (“U.S. Trustee”) objected to the application, arguing that the trustee is only entitled to $12,631.48. The issue is whethe...
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ORDER ON BLUE RIDGE INVESTORS II, LP’S MOTION REQUESTING (1) DETERMINATION OF VOTING RIGHTS AND ALLOWANCE OF BALLOT CAST AND (2) VALUATION OF COLLATERAL Hearing was held December 20 and 22, 2006, to consider the Motion of Blue Ridge Investors II, LP’s Requesting (1) Determination of Voting Rights and Allowance of Ballot Cast and (2) Valuation of Collateral (the “Motion”). The Motion was filed D...
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Memorandum Opinion Containing Proposed Findings of Fact and Conclusions of Law Pursuant to Fed. R. Bankr.P. 9033 Procedural Background and Parties This adversary proceeding is before the court on Founders Bank’s motion to dismiss counts I and II of the complaint or, in the alternative, for summary judgment on them, and on the plaintiffs’ cross-motion for summary judgment on count...
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MEMORANDUM OF DECISION ON (1) DEBTOR’S OBJECTION TO AMENDED PROOF OF CLAIM OF OPTION ONE MORTGAGE COMPANY DATED FEBRUARY 7, 2006 [#223]; (2) DEBTOR’S MOTION FOR RECONSIDERATION OF PROOF OF CLAIM OF OPTION ONE MORTGAGE CORPORATION AND WELLS FARGO BANK [#234]; (3) DEBTOR’S MOTION TO DISALLOW AMENDED PROOF OF CLAIM OF OPTION ONE MORTGAGE CORPORATION AND WELLS FARGO BANK [#236]; (4) DEBTOR’S SECOND OB...
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OPINION This matter having come before the Court for trial on the Amended Adversary Complaint filed by the Chapter 7 Trustee, Jeffrey D. Richardson; the Court, having heard sworn testimony and arguments of counsel and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Proce...
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DECISION AND ORDER I. Background On February 24, 2005, the debtor Martin Ramos Delgado (“Ramos”) filed a petition under Chapter 13 of the Bankruptcy Code. The Puerto Rico Department of Treasury (“Treasury”) filed Proof of Claim # 9 for the amount of $51,133.74, including the sum of $47,442.51 as a priority, pertaining to tax year 2001. On August 10, 2005, Ramos filed an Objection to Proof of Claim...
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ORDER RE: COMPLAINT This matter came before the undersigned for ruling on stipulated facts and briefs in lieu of trial. The time for filing briefs has now passed and this matter is ready for resolution. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B) and (K). STATEMENT OF THE CASE Debtor seeks judgment against Alcoa Employees and Community Credit Union for amounts it set off agains...
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MEMORANDUM The chapter 13 debtors brought this action against Fairbanks Capital and Select Portfolio Services for violation of the automatic stay imposed by § 362(a) of the bankruptcy code. 11 U.S.C. § 362(a). The complaint asks that the defendants be held in contempt and also that they be held liable for damages on the ground that the stay violation was willful. 11 U.S.C. § 362(h). T...
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ORDER The Plaintiff obtained a default judgment against the chapter 7 Debtor (Defendant herein) in a Colorado state court on a fraud claim because the Debtor abandoned defense of the litigation after he lost preliminary dispositive motions. The Plaintiff seeks a determination that the debt is excepted from discharge under 11 U.S.C. § 523(a)(2)(A) due to the Debtor’s alleged fraud. (For convenienc...
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MEMORANDUM OF DECISION This matter is before the Court to consider confirmation of the Debtor’s First Amended Chapter 13 Plan proposed by Grady L. Sparks, III (“Debtor”), the Debt- or in the above-referenced case. Ronald E. Stadtmueller, Chapter 13 Trustee, objected to the confirmation of the Plan on the grounds that the Debtor is not applying all of his projected disposable income in the app...
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MEMORANDUM OF DECISION This matter came before the Court upon hearing of the Trustee’s Objection to Debt- or’s Exemptions (the “Objection”) filed by Ronald E. Stadtmueller, Standing Chapter 13 Trustee (the “Trustee”), in the above-referenced case. The Objection seeks to invalidate the exemption claim of the Debt- or, Richard Foster (the “Debtor”), as to his beneficial interest in an annuity p...
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*304 MEMORANDUM OF DECISION This matter came before the court on the defendants’ motions for summary judgment in their favor on former Hance-ville Police Chief Edward Lee Potter’s complaint accusing them of illegally discriminating against him because of his bankruptcy. The court has reviewed the record of the hearing and the submissions of the parties in the context of applicable law. It f...
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ORDER ON FEES James Lisowski is the trustee in this chapter 7 case and his firm, Lisowski Law Firm, Chtd. also serves as attorney for the trustee. The Lisowski firm has filed a fee application requesting $24,835 for attorney’s fees and $419.43 as costs. The debtors have objected. 1 The court requested that Lisowski supplement the record by filing his trustee billing statements....
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon Winn-Dixie Stores, Inc. and Affiliated Debtors’ (“Debtors”) 1 Joint Plan of Reorganization (the “Plan”) and related Disclo *243 sure Statement (the “Disclosure Statement”) filed on June 29, 2006. Debtors filed their petitions for relief on February 21, 2005 (the “Petition Date”). On Au...
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OPINION AND ORDER DENYING PLAINTIFFS’ REQUEST FOR AN ORDER MODIFYING THE PLAN INJUNCTION AND GRANTING DEFENDANTS’ MOTION TO DISMISS Before the Court are two motions. First, on August 30, 2006, Bieo Stupakoff and Russell James (collectively the “Plaintiffs”) filed the Motion to Modify Plan Injunction for Limited Purpose of Filing Claims in Illinois Litigation Pending Adjudication of Va...
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MEMORANDUM of DECISION At Butte in said District this 16th day of November, 2006. In this Chapter 13 bankruptcy, after due notice, a hearing was held August 1, 2006, *782 in Butte on confirmation of Debtors’ First Amended Chapter 13 Plan (“Plan”) filed July 11, 2006. Attorney Richard A. Ram-ler, of Belgrade, Montana, appeared at the hearing on behalf of Debtors and i...
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MEMORANDUM OF DECISION At Butte in said District this 13th day of November, 2006. In this Chapter 13 case, the Trustee, Robert G. Drummond, of Great Falls, Montana (“Trustee”), filed an objection, docket no. 15, on September 11, 2006, to the Debtors’ amended claims of exemption in their homestead and in Debtor Tim Braulick’s Montana Deferred Compensation Plan, as described in Debtors’ notice ...
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MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART MOTION FOR FINAL SUMMARY JUDGMENT I. INTRODUCTION Before this court is the Motion for Final Summary Judgment (the “Summary Judgment Motion”) of The Cadle Company (“Cadle”) on Objection to Discharge of Debtor James Randell Hughes and Brief in Support Thereof and Defendant’s Response to Plaintiffs Motion for Final...
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*511 OPINION One of the most powerful weapons in a bankruptcy trustee’s arsenal is the “strong arm” power of Section 544(a)(3) 2 to recover real property, subject to the same limitations that a bona fide purchaser would have when acquiring that property from the debtor outside of bankruptcy. Trustees for decades have defeated unperfected liens and unrecorded transf...
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MEMORANDUM ON OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN This contested matter is before the court on the Objection to Confirmation filed by EMC Mortgage Corporation (EMC Mortgage) on July 25, 2006, objecting to confirmation of the Debtor’s proposed Chapter 13 plan filed on June 20, 2006. A preliminary hearing was held on August 30, 2006, and a trial was set for October 11, 2006. Fo...
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DECISION AND ORDER GRANTING POST TRIAL MOTION TO AMEND COMPLAINT Heard on the Plaintiffs (Saunders) Motion for Leave to Amend its Complaint to include additional grounds for objecting to the Debtor’s discharge. The Debtor (Pearlman) objects, arguing that the proposed amendments seek relief under theories that are time barred, and that it would be prejudicial to allow said amendments at this t...
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MEMORANDUM DECISION OVERRULING AMERICREDIT’S OBJECTION TO CONFIRMATION The matter before the Court is an objection to confirmation of the Debtor’s proposed chapter 13 plan. AmeriCredit Financial Services, Inc. (“Americredit”) objected to confirmation because the Debtor proposes to surrender its collateral in full satisfaction of AmeriCredit’s claim. AmeriCredit argues that this treatment ...
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MEMORANDUM AND ORDER ON LIMITED OBJECTION TO SALE The State of Florida Department of Revenue has filed a limited objection to the debtor’s motion to approve a sale of substantially all of its assets pursuant to 11 U.S.C. § 363(b) and (f). For the reasons that follow, Florida’s objection is sustained. BACKGROUND On July 23, 2006, the debtor filed a voluntary petition under Chapter 11. The de...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Limited Objection to the Chapter 7 Trustee’s Final Report and Account before Distribution, Request for Compensation and Report on Claims/Proposed Distribution (the “Final Report”). Carl D. Aframe (“Attorney Aframe”), the Debtor’s attorney, holds a Chapter 13 administrative expense claim arising out of the approval on February 28, 2...
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MEMORANDUM OPINION These cases are in the bankruptcy court pursuant to an order of remand that was entered in the district court on July 21, 2006, following an appeal to the district court by the Debtors. The Debtors appealed from an order entered by this court on November 9, 2005, that denied confirmation of the Debtors’ third amended plan of reorganization. These cases came before t...
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MEMORANDUM OPINION ON CHARLES VELDEKENS, ASH-RAF VELDEKENS, AND TID-WELL PROPERTIES, INC’S AMENDED MOTION TO ABSTAIN AND TO REMAND AND, ALTERNATIVELY, FOR A RECOMMENDATION FOR THE WITHDRAWAL OF THE REFERRAL ORDER REFERRING THIS CASE TO BANKRUPTCY COURT BY THE UNITED STATES DISTRICT COURT I. INTRODUCTION This adversary proceeding considers whether a bankruptcy court loses jurisdiction...
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ORDER Before the Court is the objection by the Trustee in each of the above captioned cases to the Debtors’ claimed homestead exemptions. The Court allowed the above parties to consolidate briefing and hearings in the cases. The issues raised in each objection and response are the same, and there are no facts in dispute. The question before the Court is whether the Debtors may claim the m...
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OPINION The Debtors’ Chapter 7 trustee (“Trustee”) appeals the Bankruptcy Court’s judgment allowing the Debtors’ counsel, Lentz & Clark, P.A. (“Firm”), to recover its post-petition attorney fees from a pre-petition retainer. Because we are bound to follow the United States Supreme Court’s decision in Lamie v. United States Trustee, 1 we reverse. I. BACKGROUND ...
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356 B.R. 210 (2006) In re Derek Charles MICKO, Debtor. Derek Charles Micko, Plaintiff, v. Student Loan Finance Corporation, Defendant. Bankruptcy No. 2:05-bk-24789, Adversary No. 06-82. United States Bankruptcy Court, D. Arizona. December 5, 2006. *211 Harold E. Campbell, Harold E. Campbell, PC, Mesa, AZ, for Debtor. Madeleine C. Wanslee, Gust Rosenfeld, P.L.C., Phoenix, AZ, for defendant. MEMOR...
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Opinion Regarding Cross-Motions for Summary Judgment This matter is before the Court on the trustee’s motion for partial summary judgment. New Century Mortgage filed a response and a cross-motion for summary judgment. The Court conducted a hearing on September 18, 2006, and took the matter under advisement. I. On April 13, 2005, the debtors purchased a home at 8073 Whitefiel...
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MEMORANDUM OPINION 1 Introduction The Court recently concluded a trial to determine the Debtors’ enterprise value. The issue before the Court is whether the opinion tendered by the Debtors’ expert as to that value is admissible as an expert opinion under Rule 702 of the Federal Rules of Evidence. The Third Circuit has explained that “Rule 702 embodies a trilog...
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DECISION & ORDER In this chapter 7 proceeding, the debtor has moved for reconsideration of a prior order dismissing this case for failure to file payment advices as required under 11 U.S.C. § 521(a)(l)(B)(iv). For the reasons stated herein, the motion to reconsider is granted, and upon reconsideration, the order of dismissal is vacated. Section 521(a)(l)(B)(iv) of the Bankruptcy ...
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Dear Counsel: The matter before the Court is Plaintiff-Trustee Lee Ann Pierce’s Motion for Judgment on the Pleadings. This is a core proceeding under 28 U.S.C. § 157(b)(2). This letter decision and accompanying order shall constitute the Court’s findings and conclusions under Fed.R.Bankr.P. 7052. As set forth below, the Motion will be denied. Summary. Rebecca K. Fuller filed a chapter 7 pet...
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ORDER This matter comes before the court on the motion of Latisha Marehelle Williams (the “Debtor”) to extend automatic stay pursuant to 11 U.S.C. § 362(c)(3)(B), and on the Debtor’s separate motion for an expedited hearing thereon. For the reasons set forth below, both motions are DENIED. The Debtor filed a petition for relief under chapter 13 of the Bankruptcy Code, 11 U.S.C. §§ 1301, et...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Plaintiffs’ Motion for Summary Judgment, and the Defendant’s Memorandum in Opposition. After reviewing the arguments presented by both parties in support of and in opposition to the motion, the Court finds, for the following reasons, that Plaintiffs’ Motion for Summary Judgment should be Granted. FACTS The Defendant,...
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FINAL ORDER GRANTING DEFENDANT SUSAN LUNDBORG’S MOTION FOR SUMMARY JUDGMENT DISMISSING AMENDED COMPLAINT FOR AWARD OF ACTUAL DAMAGES, INCLUDING ATTORNEY’S FEES, COSTS AND PUNITIVE DAMAGES, PURSUANT TO 11 U.S.C. § 362(h)(1), 11 U.S.C. § 105(a) AND THE COURT’S INHERENT CONTEMPT POWERS THIS MATTER came before the Court on August 21, 2006 upon Susan Lundborg’s (“Lundborg” or “Defendant”) Motion for...
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DECISION AND ORDER This cause comes before the Court after a Hearing on the Trustee’s Objection to the Debtor’s Claim of Exemption. At the conclusion of the Hearing, the Court took the matter under advisement, affording both Parties ample opportunity to submit arguments in support of their respective positions. After considering the arguments presented, this Court finds, for the reaso...
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DECISION AND ORDER This cause is before the Court after a trial on the Plaintiffs Complaint to Deny Discharge. At issue in the Trial was the applicability of three provisions of 11 U.S.C. §§ 727(a): (2), (4) and (5). Both the Trustee and the Debtors submitted to the Court for review evidence and arguments in support of their respective positions on this matter. After considering this ...
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DECISION AND ORDER This cause is before the Court on the Trustee’s Motion for Turnover, and the Debtors’ objection thereto. At the Hearing held on this matter, the Court directed the Parties to file briefs in support of their respective positions. The Court is now in receipt of the Parties’ briefs, and after carefully considering the arguments raised therein, finds, for the reasons that will ...
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DECISION AND ORDER This cause is before the Court on the Plaintiff/Trustee’s motion for Summary Judgment on her complaint to determine *833 dischargeability. Both Defendants and the Plaintiff filed memoranda in support of their respective positions on the Motion. The Court has now had the opportunity to consider the arguments presented by the Parties, and finds, for the r...
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*644 DECISION AND ORDER This cause comes before the Court after a Trial on the Plaintiff/Debtor’s Complaint for Injunctive Relief and Damages. In her *645 Complaint, the Debtor asked that the Defendant/Creditor be enjoined from continuing its collection efforts. Additionally, the Debtor’s Complaint seeks an award of damages, including legal fees and punitive damages, “that were necessitat...
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DECISION AND ORDER This cause came before the Court after an Evidentiary Hearing on the Debtors’ Objection to Claim Number 20 filed by Huntington National Bank. In the time leading up to the Hearing, the Parties submitted multiple briefs in support of their respective positions. The Court has now had the opportunity to fully review these briefs in light of the arguments made by Partie...
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MEMORANDUM OPINION AND DECISION This cause is before the Court on the opposing Parties’ Dispositive Motions: the Defendant/Debtor’s Motion for Summary Judgment as to the Plaintiffs complaint as well as on its counterclaim against Plaintiff; and the Plaintiffs Motion for Partial Summary Judgment as to the affirmative *634 defenses raised by the Defendant against the Plaint...
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DECISION AND ORDER This matter comes before the Court upon the Parties’ Cross Motions for Summary Judgment. In support thereof, both Parties submitted written arguments and exhibits. The Court has now had the opportunity to thoroughly review these materials, and for the reasons that now follow, *836 finds that the Defendant’s Motion for Summary Judgment should be Granted,...
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DECISION AND ORDER No party having appeared at the Show Cause Hearing on Why the Notice of Termination of Automatic Stay by Operation of Law Should Not be Stricken from the Record Filed by Systems & Services Technologies, the Court hereby finds, for purposes of Bankruptcy Rules 9014 and 9052, that: Said Notice appears to make findings that are solely within the Court’s purview an...
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MEMORANDUM OPINION This matter came before the Court on the Complaint Objecting To Discharge (“Complaint”) 1 filed by Deborah C. Me-notte, the Plaintiff and Trustee in Bankruptcy for Jerold M. Davidson and Virginia L. MeCoy-Davidson herein (the “Plaintiff’), against John F. Davis, the Defendant and Debtor herein (the “Debtor”). The Plaintiff seeks denial of the Debtor’s dis...
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*851 MEMORANDUM OPINION This matter came before the Court on the Amended Complaint for Turnover of Property of the Estate, to Avoid and Recover Fraudulent Transfer, to Avoid and Recover Post-petition Transfer and for Injunction (Doc. No. 8) (“Amended Complaint”) and the Motion for Summary Judgment Against Defendants (Doc. Nos.30, 31) (“Trustee’s Motion for Summary Judgment”) filed by Marie ...
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DECISION ON MOTION TO DETERMINE SUFFICIENCY OF SERVICE OF PROCESS This is an involuntary Chapter 7 filed by judgment creditors of a local physician. The putative debtor (hereinafter “Debtor”) asserts that he has not been properly served. For the reasons discussed below, the Court holds that Debtor has been properly served under Bankruptcy Rules 1010 and 7004(b). Pursuant thereto, the ...
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MEMORANDUM OPINION This matter came before the Court on the Complaint to Determine Dischargeability of Debt Under Title 11 U.S.C. § 523 and Objection to Discharge Under 11 U.S.C. § 727 (“Complaint”) 1 filed by Jaime E. Vega, the Plaintiff herein (the “Plaintiff’), against Michael Mayorga, the Defendant and Debtor herein (the “Debt- or”). The Plaintiff seeks to have a debt in the amount of $...
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OPINION In this appeal, we are asked to determine the rights of a trustee when he or she avoids a lien upon property of the bankruptcy estate. The obvious answer is that the trustee holds the lien upon the property, and may foreclose on that lien for the benefit of the estate. In this case, notwithstanding the avoidance of the lien, the debtors continued paying the underlying claim. The t...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently pending before this Court is a motion to vacate an Order dismissing the *25 within Chapter 13 case, which Order was entered on February 2, 2006 (“Dismissal Order”). This motion was filed on February 6, 2006 and was opposed by the Chapter 13 Trustee who also requested that sanctions be imposed against Debtors’ attorn...
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MEMORANDUM OPINION Darrell K. Shadinger (“Defendant” and “Debtor”) and his wife filed a chapter 7 bankruptcy petition in this Court on October 14, 2005. On March 6, 2006, High Cotton Enterprises, Inc. (“High Cotton” and “Plaintiff’) commenced this adversary proceeding against the Debtor. 1 In its complaint, the Plaintiff claims the Defendant is personally liable for an unpa...
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MEMORANDUM AND ORDER By Complaint filed August 22, 2005, Plaintiff First State Bank of Munich initiated this adversary proceeding seeking determinations that Debtor/Defendant Gordon Hans Braathen is not entitled to a discharge pursuant to 11 U.S.C. § 727(a)(2), (3), (4) and (5) and that an outstanding debt owed by the Debtor to the Bank in the amount of $14,707 is non-dischargeable pursua...
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AMENDED MEMORANDUM OPINION Pursuant to the court’s granting of defendant Darlene Meredith’s motion to reconsider, this opinion amends the memorandum opinion issued on September 29, 2006, to revise the Court’s ruling with respect to the trustee’s claim against Darlene Meredith under 11 U.S.C. § 550. In this adversary proceeding, Plaintiff Roy M. Terry, Jr., trustee for the bankrup...
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MEMORANDUM AND ORDER By Complaint filed December 6, 2005, the Chapter 7 trustee, Kip Kaler, filed this adversary proceeding seeking to recover $2,230.00, which he alleges was a preferential transfer to Defendant Harwood State Bank pursuant to 11 U.S.C. § 547. Har-wood State Bank filed its Answer on December 30, 2005, claiming that any transfer of Debtors’ property was done in the ordinary cours...
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MEMORANDUM AND ORDER The present matter came before the Court upon the Objection to Claim of Exemptions filed by Michael Wagner, the Chapter 7 trustee (“the trustee”), on November 7, 2005. The trustee objected to Debtors’ claimed exemptions of a Wells Fargo savings account which holds the proceeds from the sale of Debtors’ Bismarck home ($68,000.00) under N.D.C.C. § 47-18-01 and of a mobi...
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MEMORANDUM RE FEE APPLICATION The debtors’ attorney, Michael Heiser, has filed an application for allowance of his attorney’s fees and costs in this proceeding. The application was duly noticed and no objections have been filed. The bankruptcy court, however, has an independent duty to review fee applications of professionals in bankruptcy cases, 1 and may sua sponte “award compensation t...
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OPINION In this adversary proceeding, the plaintiff, Jill Cochran, trading as “Cochran & Company,” (the “Company”), seeks a determination that her claim is nondischargeable under 11 U.S.C. § 523(a)(2)(A) and/or § 523(a)(6). The plaintiff contends that the debtor’s actions caused her to suffer a loss that was incurred as the result of the debtor’s false representations, false pretenses...
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MEMORANDUM OPINION Before the Court is Debtor, Robert E. Mewborn, Jr.’s (“Debtor”), motion to lift the attachment of unemployment benefits in violation of the § 362 stay. More specifically, the Debtor requests that the Court order the New Jersey Department of Labor and Workforce Development, Unemployment Insurance (“NJDOL”) to cease seizing his unemployment benefits immediately and remit to h...
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MEMORANDUM OPINION AND ORDER FOR SANCTIONS On November 29, 2006, this Court held a show cause hearing in this case. Ronald Essien was required to show cause why he should not be sanctioned for filing a false affidavit. Based on the findings of fact and conclusions of law made at that hearing, and supplemented by this written memorandum opinion, Essien is sanctioned $900 and his case is dismis...
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MEMORANDUM OPINION THIS MATTER came before the Court for hearing on November 15, 2006 upon a motion by the Bankruptcy Administrator (the “Motion”) to determine the propriety of certain actions and fees of Clarence Williams, Sr. and/or Clarence Williams Entertainment, Inc (“Mr.Williams”). At the hearing, Sarah Bruce represented the Bankruptcy Administrator, Mr. Williams failed to appea...
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ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE CLAIM STATUS TO POST-PETITION ATTORNEY’S FEES AND EXPENSES INCURRED BY COUNSEL FOR LANDLORD SEAGIS DEERWOOD, LLC This matter came before the Court on Motion of Seagis Deerwood, LLC, for Order (I) Directing Payment of Administrative Rent and (II) Compelling Debtor to Assume or Reject Real Property Lease *451 (CP # 19)(the “Motion”). T...
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OPINION REGARDING SANCTIONS This matter is before the court on an order to show cause as to why the law firm of Harris Merritt Chapman, Ltd. (HMC) and one of its partners, Scott E. Chapman, should not be sanctioned for their actions in this case. After extensive briefing and one-half day of testimony, the court concludes that the lawyers’ conduct is this case was aggressively reckless as ...
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OPINION AND ORDER This case is before the court on the “Motion To Dismiss Debtors’ Motion To Show Cause And To Set Aside Pending Discovery” (“Motion to Dismiss”) filed by the Secretary of the Department of Economic Development and Commerce of the Commonwealth of Puerto Rico, Jorge Silva-Puras (“Mr.Silva-Puras”), in his personal capacity, on May 2, 2006 (Docket No. 1111); debtors’ Oppo...
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MEMORANDUM DECISION ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT BMW of North America, LLC (“BMW”), the defendant in this adversary proceeding (the “Adversary Proceeding”) moves for partial summary judgment (the “Motion for Summary Judgment”) dismissing the first and second claims for relief asserted in the complaint (the “Complaint”) of The Motorcycle Excellence Group, Inc. d/b/a Precis...
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ORDER THIS MATTER comes before the Court on the letter filed by the Debtors, which the Court deems to be a Motion to Reconsider the Order granting relief from the automatic stay to Dresser IVI Employees Federal Credit Union (“Dresser”). Following a non-evidentiary hearing on the matter, the parties agreed to and have submitted briefs on the validity and effect of a future advance or cross...
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ORDER ALLOWING ADMINISTRATIVE EXPENSE CLAIM THIS MATTER comes before the Court on the Motion for Allowance of Administrative Expense Claim, filed by Enterasys Networks, Inc. (“ENI”), and the Objection thereto filed by M. Stephen Peters, the Chapter 7 trustee (the “Trustee”). This matter involves the question of whether the non-debtor party to an unassumed, executory contract, who performe...
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ORDER ON TRUSTEE’S OBJECTION TO DEBTORS’ CLAIM OF EXEMPTION IN KUBOTA TRACTOR THIS MATTER comes before the Court on the Amended Objection to Debtor[s’] Claim of Exemption, filed by Paul Gefreh, Chapter 7 trustee (the “Trustee”), and the Debtors’ Response. After a non-evidentia-ry hearing, the parties submitted the matter to the Court on stipulated facts. The Court hereby FINDS and CONCLUDES: ...
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DECISION AND ORDER I. Procedural and Factual Background Pending before the Court is a Motion for Summary Judgment filed by Olympic Mortgage Corporation (“Olympic”) and Hector Gascot (“Gascot”)(collectively, “Defendants”) and an Answer and Cross-Motion for Summary Judgment filed by debt- or, Rafael F. Diaz Rodriguez (“Diaz”). On March 28, 2002, Diaz filed a voluntary petition ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION This cause came on for final evidentiary hearing on March 24, 2006 and April 7, 2006, upon Debtors’ Motion to Modify Plan (Doc. 78) and the Objection thereto by Chad L. Brown, Sr. and Carl L. Brown, Inc. (Doc. 79), and Debtors’ Objection to Claim of Chad L. Brown (Claim No. 7) (Doc. 89); and the Response of the Claimant (Doc. 90). Pres...
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*624 ORDER On the 5th day of January, 2006, the Motion to Avoid Lien of the Estate of Earl Wayne Meadows, filed by the Debtor; and Objection of Sam C. Castator, Personal Representative of the Estate of Earl Wayne Meadows, to Debtor’s Motion to Avoid Lien, filed by Sam C. Castator; came on for evidentiary hearing. Appearances were entered by Richard Walden, Attorney for Debtor...
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ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING CONFIRMATION OF DEBTORS’ CHAPTER 13 PLAN This matter is before the Court on Debtors’ Motion for Reconsideration of Order Denying Confirmation of Debtors’ Chapter 13 Plan (doc 36), and the Chapter 13 Trustee’s Objection thereto (doc 38). For the reasons set forth below, the Court finds that the Motion for Reconsideration should ...
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ORDER THIS MATTER comes before the Court on Plaintiffs’ Complaint, objecting to the dischargeability of the debt owed to Plaintiffs by the Defendant (“Debtor”), under 11 U.S.C. § 523(a)(4), which debt arose from his company’s non-payment of certain employee benefits owed under a collective bargaining agreement. By agreement of the parties, the Court bifurcated the issues of liability and ...
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MEMORANDUM OF DECISION I. Introduction The matters before the Court are the motions for summary judgment which both parties have filed. The Defendants, Aetan and Stella Mataev (collectively “the Ma-taevs” or individually “Aetan” and “Stella”), seek summary judgment in the two proceedings which Plaintiff, Serguei Dre-liouch (“Dreliouch”), has filed against them. The first action is this adve...
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MEMORANDUM OPINION Brian R. Andrews sued chapter 7 debtor George Kent Wells for a determination that Wells’s debt to Andrews was excepted from discharge under 11 U.S.C. § 523(a)(4). 1 Wells denied all liability to Andrews, who before the bankruptcy had obtained a $10,000 state court default judgment against the debtor. This memorandum opinion explains why $4,665 of Wells’s...
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OPINION AND ORDER The issue at hand is whether the Trustee met his burden of showing the $175,000 received by the Defendant when Debtor executed a deed of sale conveying realty to Computer Gallery, Inc. (“Computer Gallery”), can be avoided pursuant to 11 U.S.C. §§ 544, 547, and 550 of the U.S. Bankruptcy Code. Defendant objects the Trustee’s attempt to avoid this transfer for a number of ...
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DECISION AND ORDER I. Procedural Background This adversary proceeding arises out of an arbitration proceeding between Puerto Rico Solid Waste Management Authority (“ADS”) and C & A, S.E., (“C & A”) for breach of contract. The controversy pending before this Court is C & A’s removal of the action to vacate the arbitration award (Docket # 1) and ADS’ Motion to Remand and/or Abstain (Docket # 6). In...
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DECISION AND ORDER I. Procedural Background Pending before this Court is a Motion for Summary Judgment filed by EduCap, Inc. (“EduCap”) (Docket #30). On November 3, 1999, the debtor, Barney Sproli-to (“Sprolito”) filed a petition under Chapter 13 of the Bankruptcy Code (Docket # 1). Edueap filed Proof of Claim # 3 for the amount of $7,052.44 and Proof of Claim # 4 for the amo...
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OPINION AND ORDER This ease came before the court on April 25, 2006, to consider the approval of Caribbean Thoroughbred Racing Company, Inc.’s Second Amended Disclosure Statement For Second Amended Joint Plan Of Reorganization For Debtors And Debtors-In-Possession El Comandante Management Company, LLC, Housing Development Associates, SE, and El Co-mandante Capital Corporation (“Caribb...
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ORDER Before the Court is Debtors’ motion to re-impose stay as to all creditors filed on December 14, 2005. The matter came on for hearing before the Court on January 5, 2006 at which time SunTrust Mortgage, Inc. entered its opposition to the motion and after hearing argument of counsel the Court took the matter under advisement. At the Court’s direction, the parties have briefed the issues p...
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OPINION Before the Court is Yaakov Spritzer’s 1 Second Amended Plan which has been sub *66 sequently modified. The Debtor-in-Possession 2 has raised four primary objections to the plan including nonconformance with: 1) 11 U.S.C. § 1129(a)(16) by violating applicable New York non-profit law; 2)11 U.S.C. § 1129(a)(3) because it was not proposed in good...
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OPINION 1 Currently before the Court is Plaintiffs’ objection to the discharge of their debt pursuant to 11 U.S.C. § 523(a)(2)(A). Resolution pivots on Plaintiffs’ allegations they were defrauded into purchasing a home located at 339 Old East End Boulevard, Bear Creek, Pennsylvania. I. Facts The Kostelabas first went to view the home on February 9, 2003. The Darts and th...
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OPINION 1 Pending before the Court is the disposition of both the Debtors’ Complaint to Determine Secured Status and Avoid Liens (Doc. No. 1 to 5-05-ap-50183) and M & T Mortgage Corporation’s (“M & T”) Motion for Relief from Stay to proceed with a quiet title and ensuing foreclosure action (Doc. No. 19 to 5-05-bk-51389). For the following reasons, M & T’s Mot...
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OPINION These matters have come before me by way of a convoluted history, litigated over the past six years, involving two prior bankruptcy judges and a District Judge. History In about September 1995, John Lombar-dozzi (hereinafter “Lombardozzi”) 1 purchased all the stock of RJC Industries, Inc. (hereinafter “RJC” or “Debtor”) from John Chapel for $100,000. (Transcrip...
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ORDER RE: DETERMINATION OF DISCHARGEABILITY OF STUDENT LOAN DEBT This matter came before the undersigned on June 15, 2006 for trial on Debt- or’s Complaint to Determine Discharge-ability of Debt. Michael Dunbar appeared for Debtor Artur Zbigniew Golczewski. Lawrence Kudej appeared for Defendant U.S. Department of Education (“DOE”). George Carroll appeared for Defendant University of Iowa....
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MEMORANDUM DECISION The parties to this adversary proceeding have filed cross-motions for summary *897judgment, asking two questions left unanswered by the Supreme Court’s 2003 decision in Federal Communications Commission v. NextWave Personal Communications, Inc., 537 U.S. 293, 123 S.Ct. 832, 154 L.Ed.2d 863 (2003). The questions, broadly stated, are: to what extent are debts owed to the Federal...
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MEMORANDUM OF OPINION AND ORDER This matter before the Court is the motion of the Chapter 7 Trustee, Steven S. Davis (the “Trustee ”) for an order requir *656 ing Sonia Tatum-Charlemagne (the “Debtor ”) to turnover certain non-exempt assets (the “Motion”). The Debtor opposes the Trustee’s Motion. The Court acquires core matter jurisdi...
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MEMORANDUM AND ORDER ON DEBTOR’S MOTION TO DISMISS HER CHAPTER 7 CASE The Debtor filed this Chapter 7 case on May 10, 2006. She has now filed a motion to dismiss her case. See Dekt. No. 32 (September 6, 2006). The United States Trustee filed an objection to the Debtor’s motion. See Dckt. No. 39 (September 20, 2006). A hearing on this matter was held on September 21, 2006, at which the cas...
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MEMORANDUM AND ORDER ON THE PETITIONING CREDITORS’ SECOND AMENDED APPLICATION FOR COMPENSATION On December 1, 2003, Attorney J. Michael Hall (hereinafter, “Applicant”), on behalf of 71 former employees of International Agile Manufacturing, LLC (“IAM”), filed an involuntary Chapter 7 petition against Alfonzo L. Hall (the “Debtor”), the owner of IAM. 1 Applicant had previousl...
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MEMORANDUM AND ORDER ON THE DEBTOR’S MOTION FOR TURNOVER AND RECOVERY OF PROPERTY HELD BY THE CHAPTER 7 TRUSTEE The Debtor has filed a motion seeking the turnover and recovery of $21,927.13, which is currently in the possession of the Chapter 7 Trustee. A hearing on this matter was held on August 30, 2006. The Debtor and the Chapter 7 Trustee were both granted two weeks after the hearing to f...
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OPINION AND ORDER Before the court is the trustee’s motion for summary judgment, as well as the defendant’s opposition thereto and cross-motion for summary judgment. For the reasons set forth below, the trustee’s motion for summary judgment is granted, and the defendant’s motion for summary judgment is denied. Background Debtor YJ International, Inc. (“VJ”) filed a voluntary petition for reli...
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MEMORANDUM DECISION 1 This matter came before the Court for trial commencing on June 27, 2006, and continuing on various days until closing argument on September 12, 2006. This is an action by Julie Endo under Bankruptcy Code § 523(a)(15) 2 for a determination that certain obligations of the debtor arising from the parties’ marital dissolution decree are nondischargeabl...
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ORDER ON (1) M.C. DEAN, INC.’S MOTION FOR REDUCTION OF THE PURCHASE PRICE AND REFUND FROM DEBTOR, OR ALTERNATIVELY, RECONSIDERATION AND CLARIFICATION OF JULY 6, 2005 ORDER, AND (2) SKANSKA USA BUILDING INC.’S CROSS-MOTION FOR FURTHER DETERMINATION OF SETOFF AND RELATED RIGHTS THIS CASE came before the Court for hearing to consider (1) the Motion for Reduction of the Purchase Price and Refund fr...
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ORDER ON (1) JOINT MOTION OF THE LEGAL REPRESENTATIVE AND THE TRUST ADVISORY COMMITTEE TO INTERVENE, AND (2) PDAC’S MOTION TO INTERVENE THIS CASE came before the Court for hearing to consider (1) the Joint Motion of the Legal Representative and the Trust *347Advisory Committee to Intervene, and (2) the Property Damage Advisory Committee’s Motion to Intervene. The Asbestos Settlement Trust (the Tru...
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MEMORANDUM DECISION Freelife International, LLC (Freelife) filed this denial of discharge adversary proceeding as part of its continuing effort to collect on several sanction judgments totaling approximately $1 million. Freelife alleges that after the last and by far the largest of these judgments was obtained, the Debtors David F. Butler and Colleen A. “Colli” Butler (collectively, the B...
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MEMORANDUM DECISION ON AMERICAN GENERAL FINANCE OF UTAH, INC.’S MOTION TO SET ASIDE CONFIRMATION ORDER AND MOTION FOR RELIEF FROM THE AUTOMATIC STAY, AND DEBTOR’S MOTION IN LI-MINE AND OBJECTIONS TO PROOF OF CLAIM # 1 I. JURISDICTION Before the Court are American General Finance of Utah, Inc.’s (AGF) Motion to Set Aside Confirmed Chapter 13 Plan on Lack of Due Process Grounds; or in the Alter...
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MEMORANDUM OPINION This matter is before the Court upon the Chapter 13 Trustee’s motion to dismiss the debtors’ case due to the debtors’ failure to obtain credit counseling of the kind described in 11 U.S.C. § 109(h) on a date prior to the date on which the debtors filed their bankruptcy petition. The facts are undisputed. The debtors filed their bankruptcy petition on May 29, 2006, and did not...
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MEMORANDUM OPINION This matter is before the Court upon the Trustee’s objection to confirmation of the debtor’s plan. For the following reasons, which represent the Court’s findings of fact and conclusions of law pursuant to Fed. R. Bankr.P. 7052, the Court finds that the Trustee’s objection should be overruled and that the debtor’s plan should be confirmed as proposed. I. BACK...
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ORDER APPROVING APPLICATION [6] FOR EXEMPTION OF CREDIT COUNSELING PURSUANT TO 11 U.S.C. § 109(h)(4) [6] 11 U.S.C. § 109(h) 1 prohibits an individual from being a debtor in a bankruptcy case unless that individual has received from an approved non-profit budget and credit counseling agency, a briefing outlining the opportunities for available credit counseling and assisting the individual i...
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ORDER ON UNITED STATES OF AMERICA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND SUPPLEMENT TO MOTION FOR PARTIAL SUMMARY JUDGMENT THIS CASE came before the Court for hearing to consider the Motion for Partial Summary Judgment, and the Supplement to Motion for Partial Summary Judgment, filed by the United States of America, on behalf of the United States Department of Education (USDE). Th...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION THIS CASE came before the Court for a final evidentiary hearing in the above-captioned adversary proceeding. *690 The Plaintiff, Syngenta Seeds, Inc., commenced this proceeding by filing a Complaint Objecting to the Debtor’s Discharge. Generally, the Plaintiff alleges that the discharge of the Debtor, Terry Lee Win...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION THIS CASE came before the Court for a final evidentiary hearing in the above-captioned adversary proceeding. The Plaintiff, Concetta D’Angelo, commenced this proceeding by filing a Complaint to Determine Creditor Concetta *373 D’Angelo’s Claim as Exception to Discharge. In the Complaint, the Plaintiff alleges that her claim arises...
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ORDER ON MOTION FOR SUMMARY JUDGMENT REGARDING MOTION TO DETERMINE STATUS OF CLAIM THIS CASE came before the Court for hearing to consider the Motion for Summary Judgment filed by the Polk County Tax Collector. The Motion relates to a Motion to Determine Status of Claim filed by the Debtor, Joseph F. Lohr. The issue is whether certain debts owed to the Polk County Tax Collector (Tax Collector...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION THIS CASE came before the Court for a final evidentiary hearing in the above-captioned adversary proceeding. The Plaintiffs, Vincent S. Street and Elizabeth A. Street, commenced this action by filing a Complaint against the Debtor, John E. Wilken. In the Complaint, the Plaintiffs assert that they “were awarded a Judgment ag...
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ORDER ON OBJECTION TO TRUSTEE’S FINAL REPORT AND APPLICATIONS FOR COMPENSATION THIS CASE came before the Court for hearing to consider the Objection to Trustee’s Final Report and Applications for Compensation filed by Allan Stephen Zam- *716 ren a/k/a Law Offices Allan Stephen Zam-ren (Zamren). In the Objection, Zamren contests the administrative expense claims asserted ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS CASE came before the Court for hearing to consider the Motion for Summary Judgment filed by the Plaintiff, Washington Mutual Bank. The Plaintiff commenced this action by filing a Complaint to Determine the Non-Dischargeability of Debt and Objecting to Discharge. In the Complaint, the Plaintiff alleges that it is a judgment creditor of the Deb...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE OBJECTIONS FILED BY THE DEBTOR AND THE UNSECURED CREDITORS’ COMMITTEE TO THE PROOF OF CLAIM AND THE AMENDMENTS THERETO AND THE MOTION FOR PAYMENT OF ADMINISTRATIVE EXPENSES FILED BY THE MISSISSIPPI STATE TAX COMMISSION This matter came before the Court for trial on the proof of claim, the amendments thereto, and the motion for administrative ...
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ORDER ON UNITED STATES TRUSTEE’S SECOND AMENDED MOTION TO DISMISS PURSUANT TO 11 U.S.C. § 707(b), OR ALTERNATIVELY, 11 U.S.C. § 707(a) THIS CASE came before the Court for a final evidentiary hearing to consider the Second Amended Motion to Dismiss Pursuant to 11 U.S.C. § 707(b), or Alternatively, 11 U.S.C. § 707(a). The Motion was filed by the United States Trustee. The United States...
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ORDER ON MOTION TO SUBSTITUTE PARTY PLAINTIFF THIS CASE came before the Court for hearing to consider the Motion to Substi*679tute Party Plaintiff filed by the Plaintiff, Brandon J. Maxfield, and by Gregory K. Crews, the Trustee of the Chapter 7 Estate of Bruce Lee Jennings. Brandon J. Maxfield (Maxfield) commenced this action by filing a Complaint against the Defendants for legal malpractice and...
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ORDER ON MOTION TO COMPEL TURNOVER THIS CASE came before the Court for hearing to consider the Motion to Compel *179 Turnover filed by the Chapter 7 Trustee, R. Jay Harpley, on September 13, 2005. On October 3, 2005 the Debtor filed a response to the Trustee’s motion. Background The Debtor, Nicholas C. Sparks, filed his Chapter 13 petition on December 19, 2003. An order confirming his Cha...
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ORDER ON (1) APPLICATION OF RA-MEY, RAMEY & KAMPF, P.A. FOR ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES AS COUNSEL FOR THE DEBTOR-IN-POSSESSION, AND (2) TRUSTEE’S OBJECTION TO APPLICATION THIS CASE came before the Court for hearing to consider (1) the Application of Ramey, Ramey & Kampf, P.A. for Allowance of Compensation and Reimbursement of Expenses as Counsel for...
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT THIS CASE came before the Court for hearing to consider the Motion for Summary Judgment filed by the Plaintiff, Bill Wiggins. *51 The Plaintiff, an attorney, represented the mother of the Debtor’s child in a state court proceeding involving custody and support of the child. In connection with the proceeding, the Plaintiff rece...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION THIS CASE came before the Court for a final evidentiary hearing in the above-captioned adversary proceeding. The Plaintiff, Cynthia DeLehman, commenced this proceeding by filing a Complaint to determine that a debt owed to her by the Debtor, Trenton J. Reichardt, is nondischargeable pursuant to § 523(a)(6) of the Bankruptcy Code. Th...
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CORRECTED MEMORANDUM OPINION Before the court is a Motion for Summary Judgment filed by Debtor Kyle Smith (“Debtor”), the debtor in a Chapter 7 bankruptcy case. Primus Automotive Financial (“Creditor”), a creditor in said bankruptcy case, has responded to the Motion. The court finds that the facts and arguments are adequately set forth in the Motion and case record and that a hearing ...
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MEMORANDUM OF DECISION IN SUPPORT OF ORDER GRANTING CHAPTER 11 TRUSTEE’S EMERGENCY MOTION FOR AUTHORITY TO TAKE ACTIONS IN CONNECTION WITH SUBSIDIARIES [111] I. INTRODUCTION This contested matter presents the following issues: whether a debtor’s single member Delaware limited liability company (“LLC”), which was dissolved upon the debtor’s filing of bankruptcy, was effectively resuscitate...
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ORDER RECONSIDERING ORDER GRANTING MOTION FOR RELIEF FROM THE AUTOMATIC STAY IN FAVOR OF MIDFIRST BANK THIS CASE came before the Court for a continued confirmation hearing on August 2, 2006. The Court announced its intent, on its own motion, to enter an order reconsidering its Order Granting Motion for Relief from the Automatic Stay in Favor of Midfirst Bank entered on June 28, 2006 (Docket No....
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MEMORANDUM OPINION AND ORDER Before this Court is Plaintiffs Ronald and Rhonda Hughes’ (“Hughes”) Complaint Objecting to Discharge (the “Complaint”) of Defendant Ronald Wells (“Debt- or” or “Wells”). A trial was held on the Complaint commencing on April 10, 2006, and concluding on April 13, 2006 (the “Trial”). At the conclusion of the Trial, the Court took the Complaint under adviseme...
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ORDER FINDING CIVIL CONTEMPT On July 28, 2006, an evidentiary hearing was held to resolve a motion filed by the *380 Chapter 13 Standing Trustee, Glenn Stearns, (“the Trustee”) seeking to have Attorney Susan G. Castagnoli (“Attorney Castagnoli”) held in civil contempt of court. The motion was filed May 11, 2006, and alleges that Attorney Castagnoli fraudulently altered a payoff letter issued ...
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ORDER OVERRULING OBJECTION TO CLAIMS This cause came on for hearing April 18, 2006 upon the Objection to Claims by creditor Universal 1 Credit Union (Doc. 16), filed January 16, 2006, and the Trustee’s Response thereto (Doc. 18), filed January 19, 2006. Present at the hearing were attorney Amelia A. Bower, representing the Universal 1 Credit Union (hereafter “Universal 1”), and attorn...
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MEMORANDUM OPINION 2 Introduction The matter before the court is the confirmation of the Second Amended Plan of Debtor Pittsburgh Corning Corporation (hereafter “PCC” or “the Debtor”). We find that the plan is unconfirmable as over-inclusive under the Court of Appeals’ decision in In re Combustion Engineering, 391 F.3d 190 (3d Cir.2004). The plan would channel ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On this day came on for consideration the Amended Motion to Assume Non-Residential Real Property Lease and Objection to Proof of Claim and Request for Declaratory Relief and for Order Providing for any Cure Obligations, Damages, or Rights of Offsets and Credits to Establish Adequate Assurances of Future Performance (the “Motion”), filed by the Debtor, E...
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MEMORANDUM OPINION I. INTRODUCTION AND BACKGROUND This dispute arises from the classification of a debtor’s unsecured debt as contingent or noncontingent and as liquidated or unliquidated to determine the debtor’s eligibility and qualification to file a Chapter 13 bankruptcy petition under Section 109(e) of the Bankruptcy Code, 11 U.S.C. § 109(e) (“Section 109(e)”). Also at i...
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