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All Reporters → bankr-lexis → Volume 2007

Opinions in bankr-lexis Volume 2007

MEMORANDUM Hearing was held in Omaha, Nebraska on September 28, 2006, on confirmation of Debtor’s Chapter 13 plan (Fil. # 10), and an objection thereto by eCAST Settlement Corporation (Fil. # 18). The parties were given the opportunity to submit post-hearing briefs, with the last such brief being submitted on December 7, 2006. Upon such submission, the matter was taken under advisement. Thali...
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MEMORANDUM DECISION DENYING MOTION OF BARBARA GALGANO FOR SANCTIONS AGAINST DEBTOR PURSUANT TO FED. R. BANKR. P. 9011, 28 U.S.C. § 1927, AND THE COURT’S INHERENT POWER Creditor and non-debtor spouse Barbara Galgano (“Ms.Galgano”) seeks an award of $45,724.32, consisting of $42,808.50 in attorneys’ fees 1 and $2,915.82 in expenses that she incurred in connection with a seven...
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MEMORANDUM DECISION REGARDING PLAINTIFF’S MOTIONS IN LIMINE In three separate motions, the plaintiff Sam J. Alberts, trustee for the DCHC Liquidating Trust (the “Trust”), seeks to exclude the following evidence proffered by the defendants HCA Inc. (“HCA”) and Galen Hospital Illinois, Inc. (“GHI,” and collectively the “Defendants”) for use at trial: (1) any parol evidence relating to t...
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OPINION William P. Bringman (“Appellant”), counsel for the chapter 7 debtors, appeals the bankruptcy court’s order denying his motion for reconsideration of his fee application, and reducing his requested attorney’s fees to the presumptive, or “no look,” fee for chapter 7 cases filed in the Northern District of Ohio prior to October 17, 2005. 1 For the reasons that follow, the ...
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MEMORANDUM OF DECISION On September 27, 2006, chapter 11 debtor Taylor Quality Concrete, Inc. (“Debtor”) filed an Application to Employ Pike & Miller P.A. as its attorneys (“Application”) in this bankruptcy case. Docket No. 70. In the Application, Debtor requests that the employment be approved nunc pro tunc to February 8, 2006, the date the bankruptcy petition was filed. There is no dispute that...
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POST-TRIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW This is an atypical single asset real estate bankruptcy case. CDR Créances S.A. (“CDR”), a mortgagee, filed this involuntary chapter 7 case against Euro-American Lodging Corporation (“EALC”), its mortgagor, at the same time that CDR was pursuing foreclosure in state court. EALC, the alleged debtor, opposes the petition. The principal issu...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Lowitz & Sons, Inc. (“Low-itz”) pursuant to Federal Rules of Civil Procedure 55(c) and 60(b) to vacate a default judgment entered against Lowitz and in favor of Alex D. Moglia (the “Trustee”), as trustee for the bankruptcy estate of Outboard Marine Corporation and its related debtor entities (the “Debtor...
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OPINION 1 Before the Court are cross motions for summary judgment. For the reasons stated below, the Court will deny the motion of FSQ, Inc. (“FSQ”) and grant the motion of IHS Liquidating LLC and its related entities (collectively “IHS”). I. BACKGROUND On February 2, 2000, Integrated Health Services, Inc., IHS Licensees, and CCA of Midwest, Inc. (collectively “t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Before the Court is the complaint (the “Complaint”) filed by Plaintiff BUCKEYE RETIREMENT CO., LLC, LTD. (“Buckeye”) objecting to the discharge of Dale Clay Bullough (the “Debtor” or the “Defendant”) in the above-referenced bankruptcy case (the “Case”). The Court tried the Complaint on December 13-14, 2006. At the conclusion of the trial, the Court t...
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OPINION Background, Timothy J. Seivers (“Debtor”) filed a voluntary Petition under Chapter 11 of the Bankruptcy Code on March 7, 2005. The Department of the Treasury, Internal Revenue Service (“IRS”) received a Notice of Chapter 11 Bankruptcy Case, Meeting of Creditors & Deadlines (“Notice”) entered on the docket on June 2, 2005. The Notice provided that the deadline to file ...
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This is an interlocutory appeal of the bankruptcy court’s order denying the Defendants’ motion to modify a preliminary injunction. Specifically, the Defendants appeal the bankruptcy court’s decision not to increase the amount of the bond required of the Plaintiffs. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 158(b). For the reasons set forth below, *264 we affirm ...
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MEMORANDUM AND ORDER ON MOTION TO DISMISS The United States trustee (“UST”) has moved to dismiss this case because the *538 debtor did not timely satisfy the prepetition duties required by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). BACKGROUND On April 9, 2006, the debtor filed a chapter 7 petition. On April 19th, the UST filed the instant motion. Durin...
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*748 MEMORANDUM OPINION AND ORDER This case is before the court on William D.C. Valentine’s pro se complaint 1 against several defendants, arising out of a dispute over the District of Columbia Probate Court’s disposition of the estate of Daniel B. Delaney. The defendants include the Estate of Daniel B. Delaney, the estate’s current personal representative, Christo...
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DECISION ON LOCAL FRANCHISING AUTHORITY ISSUES 1 In this contested matter in the jointly administered cases of Adelphia Communications Corporation and its subsidiaries, the Court has before it the executory contract assignment issues, under section 365 of the Code, associated with the Debtors’ contemplated transfer of their cable operations to affiliates of Comcast Corporation ...
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ORDER Before the Court is the objection of Alvin and Rebecca Dwiggins (“Debtors”) to the amended claim of Elk Horn Bank & Trust Company (“EHB”), an oversecured creditor in the case. At issue is whether EHB is entitled to be reimbursed for its post-petition attorneys fees and costs pursuant to 11 U.S.C. § 506(b). EHB incurred the legal fees for bankruptcy-related services an...
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OPINION Thomas C. Condon (the “Debtor”) appeals the bankruptcy court’s denial of his motion to convert his chapter 7 case to chapter 13. For the reasons that follow, the bankruptcy court’s decision is VACATED and REMANDED. I. ISSUE ON APPEAL What factors should a bankruptcy court examine to determine whether a debtor’s motion to convert from chapter 7 to chapter 13 should be denied because ...
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REASONS FOR DECISION This matter comes before the court as a request to value inventory pursuant to the terms of a confirmed Chapter 11 plan. Preventative Maintenance Services, Inc. (“PMSI or the Debtor”) filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code on March 6, 2006. Regions Bank (“Regions”) is a secured creditor of PMSI, and holds a security interest in...
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MEMORANDUM-OPINION This matter is before the Court on the Motion for Summary Judgment of PlaintiffiDebtor Thermoview Industries, Inc. (“Debtor”). The Court considered the Debtor’s Motion and Supporting Memorandum and the Memorandum of Facts and Law in Opposition to Debtor’s Motion for Summary Judgment of Defendant Nelson E. Clemmens (“Clemmens”). For the following reasons, the Court e...
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT This matter is before the Court on Motions for Summary Judgment by defendants MHC Financial Services, Inc. (“MHC”), and Don Lee Barker (“Mr.Barker”) (collectively the “Defendants”). 1 MHC and Mr. Barker, who adopts MHC’s arguments, seek summary judgment on the trustee’s complaint to avoid the transfer...
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MEMORANDUM OF DECISION The parties here can not agree on the appropriate distribution of proceeds realized from the post-petition sale of real property of the debtor, Sunset Hollow Properties, LLC. (“Sunset Hollow”). The heart of the controversy is the extent to which a second mortgage on that property, held by defendants John Kokoski and Paul A.L. Mannheim (“Kokoski” and “Mannheim” s...
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MEMORANDUM OF DECISION REGARDING HOMESTEAD EXEMPTION Before the Court are two objections to the Debtors’ claim of a Massachusetts homestead exemption. The Debtors oppose the objections. At issue is whether the Debtors are entitled to the homestead exemption even though, when they commenced this bankruptcy case and because they were then expecting to sell the property, they neither occupied no...
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DECISION & ORDER BACKGROUND On June 20, 2006, Pamela D. Jackson (the “Debtor”) filed a petition initiating a Chapter 13 case (the “Jackson 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 HSBC Auto Finance, FEA. Household...
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*194OPINION This matter is before the Court on the Cross-Motions for Summary Judgment filed by Plaintiff/Trustee and by the respective Defendants in the above-captioned related adversary proceedings. 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) and (F). Leprechaun Trucking, Inc. (“Debtor”) filed its volun...
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MEMORANDUM OPINION This Court must determine whether this adversary proceeding should be dismissed based on an absence of standing by the plaintiff. For the reasons set forth below, the Court finds that Mondona Rafizadeh has no standing to pursue further relief in this adversary proceeding. Background of Adversary Proceeding This adversary proceeding was filed by Orix Capital Ma...
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MEMORANDUM DECISION Paul and Jerilyn Hanks (Debtors) filed a petition under chapter 13 of the Bankruptcy Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), 1 and confirmation of the Debtors’ proposed chapter 13 plan is pending before the Court. Because of a change in employment, the Debtors’ current income reflected on their Schedul...
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OPINION On consideration before the court is a motion for summary judgment filed by the defendant, Mustafa Atac (“Atac”); a response thereto having been filed by the plaintiff, Cal-Bay International, Inc., (“Cal-Bay”); 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 subject matter of th...
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MEMORAND UM DECISION DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT TO DISMISS AND GRANTING TRUSTEES MOTION FOR SUMMARY JUDGMENT Before this Court are cross motions for summary judgment on Count I of a Complaint filed by Helen Gredd as Chapter 11 Trustee (the “Trustee”) for Manhattan Investment Fund Ltd. (the “Fund” or “Debt- or”), against Bear, Stearns Securities *513 C...
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OPINION In this Opinion, the Court joins a clear majority of courts in holding that an impaired class that fails to vote to reject a Chapter 11 plan is not deemed to have accepted the plan. The Debtor, VITA CORP. (DEBTOR), operates an Old Chicago restaurant franchise in Peoria, Illinois. It filed a voluntary petition under Chapter 11 on January 25, 2006 and continues to operate i...
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MEMORANDUM OF DECISION GRANTING MOTION TO RECONSIDER AND VACATING ORDER GRANTING FEE WAIVER The Trustee in this case asks the Court to vacate the filing fee waiver it granted to the Debtor. The facts of this case are not extraordinary but since the issue arises under the new fee waiver provision of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”), see Pub.L. 109...
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ORDER OVERRULING CHAPTER 13 TRUSTEE’S MOTION TO DENY TO CONFIRMATION The Chapter 13 Trustee filed a motion to deny confirmation of Debtor Frances Oliver Ward’s proposed Chapter 13 Plan. The issue is whether the Debtor is proposing to pay into her plan all of her “projected disposable income to be received in the applicable commitment period” as required by § 1325(b) of the Bankruptcy Code. 1...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Under consideration by the Court is the complaint filed by Jill R. Brundege (“Plaintiff’) on a pro se basis on September 13, 2005. The Court interpreted the complaint as seeking relief pursuant to § 523(a)(5), § 523(a)(15) and § 727(a)(2) *25 and (4) of the U.S. Bankruptcy Code, 11 U.S.C. § 101-1330 (“Code”)....
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DECISION AND ORDER This cause comes before the Court after a Trial on the Plaintiffs Complaint to Determine Dischargeability, and the Defendant’s counterclaim thereto. At the conclusion of the Trial, the Court took the matter under advisement so as to afford the opportunity to fully consider the evidence in light of the arguments presented by the Parties. The Court has now had this opportunity,...
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ORDER GRANTING IN PART AND DENYING IN PART GREENHAW’S MOTION TO DISMISS (DOCKET #53) On January 6, 2003, Greenhaw Energy, Inc. (“Debtor”) filed a petition for chapter 11 bankruptcy. On Schedule D, Debtor listed Morris R. Greenhaw Oil & Gas, Inc. (“Greenhaw Oil & Gas”) as a secured creditor holding a deed of trust on oil and gas interests in Erath, Comanche and East-land Counties. ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Adversary proceeding relates to the bankruptcy case of Sarah Michaels, Inc., Sarah Michaels, LLC, and Fasma, LLC (collectively, the “Debtors”) originally filed under Chapter 11 of the Bankruptcy Code (the “Code”), 11 U.S.C. § 101 et seq on May 1, 2003, but converted January 26, 2004 to Chapter 7. A dispute was presented here as t...
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MEMORANDUM OPINION ON DEBTORS’ MOTIONS TO VACATE DISCHARGE AND CONVERT TO CHAPTER 13 AND ON TRUSTEE’S MOTION TO RECONVERT Debtors’ Edward and Karen Starling (the “Debtors”) filed their combined motion to convert this Chapter 7 case to Chapter 13 and vacate the discharge entered in the Chapter 7 case. Chapter 7 Trustee Philip Levey (the “Trustee”) opposed that motion, and in the altern...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Before this Court is an Objection to Confirmation of Donald L. Green’s (“Debt- or”) Chapter 13 Plan (“Plan”) filed by M & T Bank (“M & T”) on May 31, 2006, Debt- or’s Affidavit in Response to Objection by M & T filed on June 16, 2006, a Supplemental Affirmation to M & T’s Objection filed on July 31, 2006, and Debtor’s Sup...
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Reasons for Order Partially Sustaining Trustee’s Objections to Plan Confirmation This matter came before the Court on the Objections to Confirmation filed by S.J. Beaulieu, Jr., the standing chapter 13 trustee, who avers that the debtors claim excessive deductions or expenses and that the plans do not contribute all disposable income. This Court initially heard the Objections during each debtor...
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MEMORANDUM OF DECISION AND ORDER REGARDING MOTION TO DISMISS This case is before the court on the United States Trustee’s (“UST”) motion to dismiss Debtors’ Chapter 7 case for abuse under 11 U.S.C. § 707(b)(3) [Doc. #23], Debtors’ response [Doc. # 28] and the UST’s supplemental brief [Doc. # 32]. The court has jurisdiction over this case pursuant to 28 U.S.C. § 1334 and the general or...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This adversary proceeding boils down to a disagreement between two former business associates as to whether one fraudulently caused — or, at least, fraudulently allowed to occur — a business loss to the other. After hearing extensive evidence at trial, the Court concludes that this case, while it results from the dashed hopes and dreams of both men...
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PRELIMINARY DECISION ON REMAND REGARDING THE TRUSTEE’S MOTION FOR ORDER AUTHORIZING A FOURTH INTERIM DISTRIBUTION Introduction On May 23, 2001, Dr. Ben S. Branch, Chapter 7 Trustee (the “Trustee”) of Bank *385 of New England Corporation (“BNEC” or “the Company”) moved for authority to make a fourth interim distribution in the amount of $11,000,000 to the creditors of the estate (the “Moti...
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Appellants, Debbie Rinehart, Jack Blair, and David Mask, among others (hereinafter, referred jointly as “Appellants”), appeal an order of the bankruptcy court of the Western District of Oklahoma, arguing that the bankruptcy court erred when it concluded that Monte J. Sharp (“Sharp”) was a farmer as defined in 11 U.S.C. § 101(20) and therefore exempt from involuntary proceedings. For the followi...
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MEMORANDUM DECISION REGARDING (I) REMAND FROM THE COURT OF APPEALS TO DETERMINE CONTENT AND MEANING OF SETTLEMENT DISCUSSIONS AND (II) DENIAL OF RECUSAL Preliminary Statement The Debtor’s husband Reynold Olsen (“Mr.Olsen”) has been remarkably tenacious and occasionally outrageous 1 in his efforts to overturn an order of this Court dated February 16, 2005 (the “Sett...
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MEMORANDUM DECISION INTRODUCTION The Internal Revenue Service (“IRS”) filed a Proof of Claim for delinquent taxes, which includes a claim for unsecured debt in the amount of $422,390.92. Edward Henne (“Debtor”) contends that this debt was discharged in his previous Chapter 7 case.1 The IRS argues that the Debtor’s taxes were not discharged because the Debtor failed to file returns and therefore ...
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DECISION ON HEARINGS HELD ON JANUARY 4, 2007 On January 4, 2007, the Court conducted hearings on the outstanding issues in this case. Specifically, the Court heard the application of the debtor for an order pursuant to Section 363 of the Bankruptcy Code to permit the sales of certain real estate to go forward free and clear of all liens and outside the debtor’s proposed plan of reorganization (th...
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MEMORANDUM OPINION The cause before the Court is the United States Trustee’s Motion to Dismiss Case Pursuant to 11 U.S.C. Section 707(b)(1) (“Motion to Dismiss”) filed by the United States Trustee for Region 9 (“UST”) on November 24, 2006. Debtors Clarence C. Zak and Elaine R. Zak (“Debtors”) filed Debtors’ Response to United States Trustee’s Motion to Dismiss Case Pursuant to 11 U.S.C. Section...
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MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART TRUSTEE’S REQUEST TO RECOVER ESTATE PROPERTY PURSUANT TO 11 U.S.C. § 550 THIS MATTER came before the Court for trial on November 6, 2006, upon Trustee’s Complaint to Recover Estate Property Pursuant to 11 U.S.C. § 550. The Court makes the following findings of fact and conclusions of law. FINDINGS OF FACT ...
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MEMORANDUM-OPINION This matter is before the Court on the Renewed Motion to Remand of Defendant Imperial Gas Resources, LLC (“IGR”) and the Response to the Renewed Motion to Remand of Debtor/Defendant Warren Producers, Inc. (“Debtor”). The Court considered the written submissions of the parties and the arguments of counsel at the hearing held on the matter. For the following reasons, the Cour...
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MEMORANDUM-OPINION This matter is before the Court on the Renewed Motion to Remand of Defendant Imperial Gas Resources, LLC (“IGR”) and the Response to the Renewed Motion to Remand of Debtor/Plaintiff Warren Producers, Inc. (“Debtor”). The Court considered the written submissions of the parties and the arguments of counsel at the hearing held on the matter. For the following reasons, the Cour...
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MEMORANDUM OPINION ON OBJECTION TO CONFIRMATION This proceeding relates to the Chapter 13 bankruptcy case filed by Mona Morales (“Debtor”) on August 15, 2006. Wells Fargo Financial Acceptance, its successors and/or assigns (“Wells Fargo Financial”) is a creditor of the Debtor with respect to a certain indebtedness secured by a lien on a 2002 Saab 954 motor vehicle (the “Vehicle”). The Debtor ...
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*542 MEMORANDUM OF DECISION RE: SATISFACTION OF 11 U.S.C. § 1129(b) (2) (B) (ii) The matter before the court is confirmation of the above-referenced debtor’s (the “Debtor”) First Amended Plan of Reorganization (Doc. I.D. No. 77, the “Plan”). 1 The court has jurisdiction over this matter as a core proceeding pursuant to 28 U.S.C. §§ 157 and 1334 and that certain Order dated September 21, 198...
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MEMORANDUM OF DECISION This adversary proceeding is before the court on the motion of plaintiff HSBC Bank USA, N.A. (HSBC) to alter or amend the court’s judgment of October 5, 2006, issued after trial and accompanied by a written opinion. HSBC Bank USA v. United Air Lines, Inc. (In re UAL Corp.), 351 B.R. 916 (Bankr.N.D.Ill.2006) (the pri- or decision). HSBC brought the proceeding against United ...
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*855 OPINION Kenneth Dwayne Perrin and Tammy Lynn Perrin (“Debtors”) appeal an order of the bankruptcy court finding a willful violation of the automatic stay, but awarding no damages to the Debtors. I.ISSUES ON APPEAL The issues raised by this appeal are: (1) whether an award of damages is mandated by section 362(h) even when the debtor fails to prove actual damages; and (2) whether the ...
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MEMORANDUM OPINION AND AMENDED ORDER DISMISSING CASE WITH PREJUDICE AND IMPOSING ADDITIONAL MONETARY SANCTIONS On August 11, 2006, the court entered an Order Dismissing Case with Prejudice and Imposing Sanctions (the “August 11, 2006 Dismissal Order”). This Memorandum Opinion and Amended Order now amends the August 11, 2006 Dismissal Order, primarily to impose more significant monetar...
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MEMORANDUM OF DECISION Pornography doesn’t promptly spring to mind when considering the defense of “ordinary course of business ... of the debtor and the transferee” in connection with al*677leged preferential transfers under 11 U.S.C. § 547. But the analytical tool used by Mr. Justice Stewart in Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), wherein he states tha...
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MEMORANDUM OPINION AND ORDER Hearing was held on November 16, 2006, on the motion for summary judgment filed by plaintiff Watts Contractors, Inc., the Debtor-In-Possession (“DIP”), against defendant Gerald W. Watts. Defendant filed a cross-motion for summary judgment. Following the hearing, the court requested both parties to submit proposed findings of fact and conclusions of law. For the foll...
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DECISION AND ORDER Before this Court is the Motion of Angela Casalduc for Leave to File an Adversary Complaint. At the Hearing held on this matter, the Parties were afforded the opportunity to make arguments in support of their respective positions. The Parties were also afforded the opportunity to supplement their arguments with post-hearing briefs, with the Movant, but not the Debt- or, the...
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MEMORANDUM THIS MATTER is before the Court on the Trustee’s Objection to Claim # 15 of NextBank, NA/B-Line, LLC (the “Objection”) filed on June 22, 2006. B-Line, LLC filed a Response to the Objection (the “Response”). Having reviewed the Objection, the Response, the applicable statutes, rules and case law, and being otherwise sufficiently informed, the Court will disallow the Claim and in conne...
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MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This adversary proceeding is before the Court on the Plaintiffs motion for summary judgment. The Plaintiff Arthur A. Martello (“Martello”) asserts that the debt owed to him by the Defendant Craig N. Fowers (“Fowers”) should be excepted from discharge pursuant to 11 U.S.C. § 523(a)(4) and § 523(a)(6) of the Uni...
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RULING GRANTING MOTION TO DISMISS AMENDED COMPLAINT AS TO DEFENDANTS GARY JOSEPH GREENE AND GARY JOSEPH GREENE P.C. I. David Manuele Cultrera (“the debtor”) received a discharge in his Chapter 7 bankruptcy case on October 28, 2003 and his case was closed. The debtor, following the reopening of the case, filed, on May 24, 2006, the above-captioned adversary proceeding. Presently before the c...
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MEMORANDUM OF DECISION REGARDING TRUSTEE’S OBJECTION TO CONFIRMATION OF DEBTOR’S CHAPTER 13 PLAN Before the Court is the Chapter 13 trustee’s objection to confirmation of the Debt- or’s Chapter 13 plan. 1 The Debtor opposes the objection. At issue is whether the plan’s proposed distribution to creditors satisfies the so-called best interests test set forth in Section 1325(a)(4) of the Bankr...
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ORDER On October 8, 2005, Charles Preston Tyson, Sr., (“Debtor”), filed a voluntary petition for relief under the provisions of Chapter 13 of the United States Bankruptcy Code. The Debtor claimed a residence located at 4766 Highway 157, Judsonia, Arkansas, as a homestead pursuant to the Arkansas Constitution, Article 9, Sections 3 and 4. He valued the exemption at $371,000.00. No party in inter...
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MEMORANDUM OPINION Before the Court is the Third Amended Complaint filed by Steve Smith, Trustee, seeking damages and avoidance of transfers under 11 U.S.C. §§ 544, 548, 549 and 550. After trial on the merits, the Court concludes that the trustee has failed to prove any cause of action and consequently is not entitled to any relief. I. Facts Bob Nicholas Enterprise, Inc. dba...
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MEMORANDUM OPINION BACKGROUND The Trustee in this chapter 7 case filed an objection to exemptions claimed by the Debtor in his property to the extent of the amount of a domestic support obligation (“DSO”) held by Debtor’s ex-wife. The Trustee argues that, even though the Debtor may claim his property as exempt, *43 the Bankruptcy Code provides at 11 U.S.C. § 522(c)(1...
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ORDER DETERMINING DEBTOR’S COUNSEL IS NOT A DEBT RELIEF AGENCY AS DEFINED UNDER 11 U.S.C. § 10K12A) THIS MATTER came before the Court on January 16, 2007 upon the Debtor’s Motion for a Determination and/or Clarification that Debtor’s Counsel is Not a Debt Relief Agency as Defined Under 11 *278 U.S.C. § 101(12A) (the “Motion”). The relevant facts are: 1....
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MEMORANDUM OPINION Plaintiff Sheryle Schwaiger, now known as Sheryle Lynne Sheets, former wife of debtor Mark Schwaiger, filed this complaint under 11 U.S.C. § 523(a)(15) 1 to except from Mark’s discharge his marital property settlement obligation to pay her $400 per month for the rest of her life from his military pension as an equalization payment. Mark responds that, as ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The matter before the Court is Plaintiffs Complaint to Determine the Dis-chargeability of Particular Debts Pursuant to 11 U.S.C. Section 523, Debtor’s Answer, Defendant Alvin C. Lewis Jr.’s Pre-Trial Memorandum and Plaintiffs Reply to Defendant’s Pretrial Brief. A hearing in this matter was held on March 28, 2006, where both parties appeared in person a...
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MEMORANDUM OPINION AND ORDER DISCHARGING ORDER TO SHOW CAUSE REGARDING PATIENT CARE OMBUDSMAN Under new section 333 of the Bankruptcy Code, 1 if a debtor is a health case business, the Court is required to appoint an ombudsman to monitor the quality of patient care and to represent the interests of the patients of the health care business unless the Court finds that the appointment of an om...
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OPINION DENYING CONFIRMATION OF DEBTOR’S PLAN I. Introduction Donald Slusher, a carpenter, filed for chapter 13 bankruptcy protection on March 17, 2006. With his petition, Mr. Slusher filed his Schedules I & J, which contained statements of his current income and current expenditures. These showed monthly income and expenses of $3,739.82 and $1,285, respectively, for a monthly net in...
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MEMORANDUM DECISION I. PRELIMINARY STATEMENT This matter comes before the Court on Chapter 7 Trustee Lothar Goernitz’s (the *253“Trustee”) “Application for Order Directing Title Security Agency of Arizona dba Premier Title Group to Show Cause Why it Should not be Held in Contempt of Court” (“Application”), filed September 6, 2006. This Court issued the requested Order to Show Cause on September 8,...
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ORDER This case is before the Court on Trustee’s motion to dismiss Debtor’s case under 11 U.S.C. § 521(i)(l). Since Debtor failed to provide payment advices within 45 days of the petition date, the Court will grant Trustee’s motion. Accepting Debtor’s factual contentions as true, the Court makes the following findings of fact. 1 Debtor filed his petition for relief under Chapter 7 of the ...
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MEMORANDUM OPINION AND ORDER FOR JUDGMENT This proceeding came for hearing on November 30, 2006 pursuant to the district court’s order reversing the judgment entered on August 23, 2005 and remanding for further proceedings. James Ruben-stein and Doug Elsass appeared for the plaintiffs. Kenneth Corey-Edstrom appeared for The BMC Liquidating Trust, and Shannon Kelly appeared for defendant Deutsch...
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OPINION 1 This is an adversary proceeding brought by Simon & Schuster, Inc. (“S & S”) to reclaim goods, pursuant to section 546(c) of the Bankruptcy Code. Before the Court is the Emergency Application of Simon & Schuster for Temporary Restraining Order Pursuant to Bankruptcy Rule 7065 [Docket No. 8] (the “TRO Motion”), which is opposed by the Debtors and the ...
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MEMORANDUM OF DECISION DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Before the Court is defendant’s Motion for Summary Judgment in an adversary proceeding commenced by the chapter 7 Trustee of Broadway City, LLC (the “Debtor”) against a former investor in the Debtor that, as part of a prepetition recapitalization of the enterprise and as a means to attract additional investment, redeemed its...
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MEMORANDUM OPINION Brandon Clawson, the instant debtor (hereafter “the Debtor”), moves both to reopen his bankruptcy case and to then avoid a judicial lien of Cassady Pierce Company (hereafter “Cassady”), which lien the Debtor neglected to avoid before his case was initially closed. For the reasons set forth below, the Court denies both motions with prejudice. STATEMENT OF FACT...
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RECOMMENDATION TO THE DISTRICT COURT TO GRANT THE MOSERS’ MOTION TO WITHDRAW THE REFERENCE OF THIS ADVERSARY PROCEEDING FOR PURPOSES OF TRIAL, BUT TO DENY IT FOR PRETRIAL MATTERS This proceeding is before the Court on a motion by four of the defendants to withdraw the reference of the proceeding and immediately transfer it to the District Court, based on their asserted right to a jury tri...
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MEMORANDUM DECISION ON TRUSTEE’S OBJECTION TO CONFIRMATION Darrin J. Schultz commenced this case with the filing of a chapter 13 petition on August 29, 2006. The Standing Chapter 13 Trustee filed a timely objection to confirmation of the debtor’s plan. A hearing on that objection was held, and the court took the matter under advisement. This is a core proceeding as defined in 28 U.S.C. § 157(...
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ORDER REGARDING DEBTORS’ MOTION TO INCUR CREDIT POST-CONFIRMATION THIS CORE PROCEEDING 1 comes before the Court on a Motion to Incur Credit Post-Confirmation, filed by the debtors, James and Lisa Clemons (hereinafter “Debtors”). 2 This Court held a hearing on the issue pursuant to Federal Rule of Bankruptcy Procedure 4001(c) on January 10, 2006. After considering the...
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MEMORANDUM OF DECISION Granting Debtor’s Application For A Fee Waiver And Overruling Trustee’s Objection Once again this Court is called upon to define the parameters of the new fee waiver provision, 28 U.S.C. § 1930(f)(1), promulgated under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. 109-8, 119 Stat. 23 (2005). Applying the facts of this case to...
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MEMORANDUM OPINION For the reasons set forth below, the Court finds that Plaintiff and Defendant have each engaged in wrongful conduct with respect to the business partnership formed by them. A separate judgment has been issued. Background On or around March 15, 2000, Omar Leal and Kevin Mokhabery entered into a general partnership doing business under the assumed name A1 Am...
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ORDER DENYING MOTION TO EXTEND STAY AND REQUEST TO DECLARE THE MOTION MOOT This matter initially came before the Court upon Debtor’s “Motion to Continue Stay Pursuant to 11 USC § 362(c)(3)(B) as to All Creditors.” Upon the Court’s denial of the Motion, Debtor’s counsel immediately requested the Court deny the motion as moot, arguing that since no collection action was taken against the Debtor...
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OPINION1 Before the Court is the Complaint filed by Sharon Tyndall (the “Plaintiff’) against Donn L. Tyndall (the “Debtor”) seeking a ruling that payments due are non-dis-chargeable pursuant to former sections 523(a)(5) and (15) of the Bankruptcy Code.2 For the reasons stated below, the Court will grant judgment in favor of the Plaintiff. I. BACKGROUND The Plaintiff and Debtor were married for ap...
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OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR LEAVE TO AMEND THE COMPLAINT The plaintiffs, Steven Salsberg (“Steven”) and Gloria Salsberg (“Gloria”), are *55 former shareholders of the debtor Trico Marine Services, Inc. Their shares were cancelled under the confirmed plan (the “Plan”). Contending that the confirmation was procured through the perjurious testimony of Trevor...
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MEMORANDUM OPINION ON MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT Texas State Bank seeks to dismiss this adversary proceeding and seeks summary judgment against the plaintiffs. The Court will consider the entire motion as a motion for summary judgment. See Fed. R. Cxv. P. 12(b) as incorporated by Fed. R. Bankr. P. 7012. Relationship of Parties In 1994, Texas Steer, Inc...
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MEMORANDUM OPINION Walters Construction, Inc. (“Walters Construction”), filed this adversary proceeding against Daniel Paul Cook (the “Debtor”) to except an alleged $17,000 debt from his Chapter 7 discharge pursuant to § 523(a)(2)(A) and/or (B) of the Bankruptcy Code. Walters Construction asserts that the Debtor was responsible for certifying the weekly payroll records of its subcontractor, Coo...
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DECISION DENYING MOTION OF THE U.S. TRUSTEE TO DISMISS CHAPTER 7 CASE PURSUANT TO 11 U.S.C. §§ 707(b)(2) AND/OR (b)(3) Background On July 3, 2006, the Debtors, Mark and Michelle Sorrell, filed a chapter 7 petition (Doc. 1). This chapter 7 case is subject to the provisions of Pub.L. No. 109-8, 119 Stat. 23, the Bankruptcy Abuse Prevention and Consumer Protection Act (the “2005 Act...
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MEMORANDUM OF DECISION ON THE MOTIONS OF THE MALDEN MILLS CREDITOR TRUST TO VACATE ORDER GRANTING ASSENTED-TO MOTION FOR FINAL DECREE; TO REOPEN ABOVE-CAPTIONED CASES; AND TO TRANSFER VENUE OF DELAWARE CASES # 07-10048 et al. This matter came before the Court for a hearing on January 12, 2007 upon the Motions of the Malden Mills Creditor Trust (1) to vacate the Court’s Order of De...
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ORDER RE: MOTION FOR SUMMARY JUDGMENT This matter came before the undersigned on December 15, 2006 pursuant to assignment. Plaintiff/Trustee Renee Han-rahan was represented by Attorney Abbe Stensland. Defendant Martinson Construction Co. was represented by Attorney Tom Fiegen. After hearing arguments of counsel, the Court took the matter under advisement. This is a core proceeding pursuant to 28 ...
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MEMORANDUM DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The plaintiff, Dustin Elbing, filed an adversary proceeding under 11 U.S.C. § 523(a)(6) seeking a determination that potential obligations owed him by the debt- or, as yet unliquidated, are excepted from his discharge. The plaintiff moved for summary judgment on the grounds various statements, pleadings, and state court orders...
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Midwest Regional Credit Union (“Midwest”) appeals an order of the United States Bankruptcy Court for the District of Kansas finding that the value of Juan Carlos De Anda-Ramirez and Jennifer Nicole De Anda’s (the “Debtors”) vehicle is *796 equal to the Kelley Blue Book (“KBB”) private party value, not the KBB retail value. For the reasons set forth below, the decision of the bankru...
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MEMORANDUM OF DECISION On Cross-Motions for Summary Judgment The Bankruptcy Code permits an individual debtor to avoid a lien if that lien (a) is judicial and (b) impairs an exemption. See 11 U.S.C. § 522(f)(1). The question presented in the instant case is whether a judgment lien that includes (1) a jury award arising from the Contractor’s Lien Law 1 ...
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MEMORANDUM DECISION RE: CLAIM OF ORIGEN FINANCIAL, LLC INTRODUCTION This controversy presents multiple issues regarding the interplay between the claims allowance process and the process of confirming and administering a Chapter 13 plan. Convoluted facts often give rise to complicated issues of law which is the situation in this case. FACTS On February 21, 2003, the debtors commenced a Chapte...
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MEMORANDUM DECISION Justin Lawson (Lawson) and Douglas and Cheryl Boynton (the Boyntons) (collectively the Debtors) filed petitions under chapter 13 of the Bankruptcy Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), 1 and confirmation of the Debtors’ proposed plans is pending before the Court. The Debtors are above-median debtors according to th...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER is before the Court on the Chapter 7 Trustee’s Complaint to Recover Fraudulent Transfer, to Determine the Extent, Priority and Validity of Interest in Property of the Estate and to Sell Estate’s Interest and Interest of Co-Owner in Real Property (“Complaint”). The Court held a trial on the merits of this adversary proceeding on December 18, 20...
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MEMORANDUM AND ORDER Before the Court is the Debtor/Plaintiffs request for continuation of previously granted injunctive relief to prevent completion of a pending foreclosure sale of his residence until a final determination of this adversary proceeding. For the reasons stated below, the Court grants the injunc-tive relief requested. Procedural Status On September 27, 2006, the Defendant, Cham...
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ORDER RE: OBJECTION TO EXEMPTION This matter came before the undersigned on December 21, 2006, on Trustee’s motion to disallow Debtor’s homestead exemption claim. The parties filed a joint stipulation in lieu of presenting evidence at trial. After argument, the Court took the matter under advisement. Debtor Rita Russow was represented by Francis Wm. Henkels. Trustee Sheryl Schnittjer was repres...
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MEMORANDUM DECISION I. INTRODUCTION The Debtor seeks to avoid two Deeds of Trust on her homestead. Because she lacks standing to seek such relief, this adversary will be dismissed. II. FACTS AND PROCEDURAL HISTORY In November of 2004, the Debtor’s son was arrested. In response to his request that she obtain his release from jail, the Debtor, a widow in her 70’s, using information from the yellow ...
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MEMORANDUM OPINION These cases are before the court on the trustee’s objection to confirmation of the debtors’ chapter 13 plans. In each case, the debtors are above-median income debtors who proposed plans providing for payment during the applicable commitment period of amounts equal to or greater than the amounts computed in accordance with § 1325(b)(2) but less than their actual net disposa...
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OPINION The issue before the Court is whether a 2001 cargo trailer the Debtors use to haul food and cooking equipment for their catering business is an exempt “tool of the trade.” The Debtors, Floyd and Carol Hively, filed a petition pursuant to Chapter 7 of the Bankruptcy Code on October 5, 2006. The Debtors operate a grill service which involves preparing food items to be served at social g...
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MEMORANDUM OPINION THIS CASE is before the court on the motion for relief from stay filed by Wells Fargo Bank, the responses filed by the debtor and the trustee, and the draft consent order submitted by the parties. The draft order cannot be entered without a hearing because the terms may unnecessarily adversely affect the rights of unsecured creditors. The court must be concerned, not only...
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DECISION & ORDER REQUIRING DEBTOR TO FILE MEANS TEST FORM B22A AFTER CONVERSION TO CHAPTER 7 Heard on the Debtor’s objection to this Court’s Notice of Missing Documents, requiring her to file Official Bankruptcy Form B22A, after she converted her Chapter 13 case to one under Chapter 7. This dispute raises an issue of first impression in the Nation, 1 but one that has been b...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This ease came before the Court upon the Trustee’s Objection to Debtor Robert L. Mathews’ (“Debtor”) Claim of Exemptions (“Objection”) and the Trustee’s Motion for Turnover of Property of the Bankruptcy Estate (“Turnover”). A hearing was held on May 11, 2006 and May 25, 2006 (the “Hearing”). In lieu of oral argument, the Court directed the parti...
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MEMORANDUM OPINION I. INTRODUCTION This case involves an individual debtor who filed for relief under Chapter 13 of the Bankruptcy Code 1 , did not participate in budget and credit counseling prior to filing for bankruptcy, and did not seek court approval to be exempted from participating in budget and credit counseling (the “Credit Counseling Requirements”). 2 ...
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MEMORANDUM OPINION AND ORDER REGARDING TRUSTEE’S MOTION SEEKING TO HOLD JOSEPH MANCUSO IN CIVIL CONTEMPT Kenneth P. Silverman, the Chapter 7 Trustee (“Silverman” or the “Trustee”) of *531 Chief Executive Officers Clubs, Inc. (“Debtor”), seeks an order holding Joseph Mancuso (“Mancuso”) in civil contempt for violating a November 18, 2002 Order (“November 18 Order”) signed ...
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MEMORANDUM OF DECISION The Plaintiff United States Trustee (“UST”) commenced this adversary proceeding requesting an order denying the chapter 7 1 debtor James Lowell Snod-grass (“Defendant”) a discharge pursuant to §§ 727(a)(2)(A), (a)(2)(B), and (a)(4)(A). Docket No. 1. The Court conducted a trial in the action on December 14, 2006 at which the parties appeared and presented ...
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Opinion Background. The above adversary action arises in the Chapter 11 Bankruptcy case of Stone & Webster, Inc., et al. (“Stone & Webster”) In its complaint the Plaintiff, the Shaw Group, Inc., (“Shaw”) seeks a declaratory judgment on a variety of issues, including 1) a determination as to the amount and rightful owner of a certain claim against Shaw, and 2) a declaration that upon payment o...
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MEMORANDUM AND ORDER This matter came to trial on December 14, 2006. After receipt of the parties’ post-trial briefs, the Court is now prepared to rule. This matter constitutes a core proceeding, 1 and the Court has jurisdiction to decide it. 2 I. FINDINGS OF FACT This is an action by the Chapter 13 Trustee to avoid the mortgage hen of Defendant, Washington Mu...
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MEMORANDUM OF DECISION RE APPLICATION FOR APPROVAL OF COMPROMISE The application for approval of a proposed compromise between John T. Kendall (the “Kendall”), the interim chapter 7 trustee, and Burlingame Capital Partners II, L.P. and related individuals and entities (collectively “Burlingame”) came on for hearing on January 12, 2007. Appearances were stated on the record. At the conclus...
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AMENDED MEMORANDUM OF DECISION DISMISSING ADVERSARY PROCEEDING AND DENYING MOTION FOR CONTEMPT SANCTIONS This Memorandum of Decision relates to the Motion to Dismiss Complaint for Fraud and For Contempt Sanctions (“Motion ”) filed by the Defendants in this adversary proceeding and the responsive pleadings filed thereto. This Court has core jurisdiction pursuant to 28 U.S...
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MEMORANDUM OPINION This is the story of two motor vehicles and the debtors who no longer desire them. The parties to these disputes have asked the Court to determine whether debtors or creditors must suffer at the gallows of the “hanging paragraph” found in § 1325 of the United States Bankruptcy Code, as modified by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAP...
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MEMORANDUM OPINION Now before the Court is a Complaint, filed by Twin City Bank pursuant to 11 *269 U.S.C. § 523(a)(2)(B) and an Answer filed by the Debtors. Trial in this adversary proceeding was held on January 12-13, 2005. The Court delivered its ruling orally on January 24, 2005; an order prepared by Defendants’ counsel was approved and entered on the docket on Februa...
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OPINION In a matter of first impression in this District, the Court has been asked to examine the effect of conversion of a prior case upon a debtor’s eligibility to receive a discharge in a pending chapter 13 case in light of the prohibitions against serial discharge enacted in 11 U.S.C. § 1328(f) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. The debtors in this case ...
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MEMORANDUM OPINION REGARDING APPLICATION TO EMPLOY SPECIAL COUNSEL NUNC PRO TUNC On October 10, 2006, the chapter 7 trustee filed a nunc pro tunc application to *913 employ Nicholas Johnson, of Johnson, Burnett & Changare, as special counsel [doc. no. 52]. The Court issued an order expressing concerns as to the application and requiring briefing [doc. no. 53]. ...
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OPINION The Michigan Unemployment Insurance Agency (“the Agency”) appeals the bankruptcy court’s order finding that its claim against Debtor Albion Health Services, a nonprofit employer, for reimbursements to Michigan’s Unemployment Trust Fund is not entitled to priority status as an excise tax under 11 U.S.C. § 507(a)(8)(E). For the reasons that follow, the bankruptcy court’s decision will be af...
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MEMORANDUM OPINION AND NOW, this 29th day of January, 2007, upon consideration of (a) the motion by Ford Motor Credit Company (hereafter “Ford”) for approval of a particular reaffirmation agreement that it entered into with Jack Meyers, the instant debtor (hereafter “the Debtor”), whereby the Debtor proposes to reaffirm a pre-petition debt that it owes to Ford (hereafter “the Reaffirmation Agree...
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MEMORANDUM-OPINION This matter is before the Court on the Renewed Motion to Remand of Defendants Cappsrock Oil, LP (“Cappsrock”), Imperial Gas Resources, LLC (“IGR”), and NW Energy, LP (“NW Energy”), and the Response to the Renewed Motion to Remand of Debtor/Plaintiff Warren Producers, Inc. (“Debtor”). The Court considered the written submissions of the parties, including the Supplemental Bri...
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DECISION AND ORDER DISALLOWING THE ASSOCIATION’S CLAIMS FOR MONEY DAMAGES FOR TRESPASS Heard on the Debtor’s objection to the claims of Goat Island South Condominium Assoc., Inc.; America Condominium Assoc., Inc.; Capella South Condominium Assoc., Inc.; and Harbor House Condominium Assoc., Inc. (collectively, the “Association”), for damages in the amount of $3.5 Million caused by the Debtor’s al...
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DECISION & ORDER When Juan Irene filed a petition for relief under chapter 7 of the Bankruptcy Code, he duly claimed a homestead exemption for the condominium unit where he resides in Cathedral Park Tower at 37 Franklin Street in the City of Buffalo. At about the time that he acquired that condominium unit, Mr. Irene also purchased, by separate deed, two parking spaces within the same condomini...
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MEMORANDUM OPINION FINDING OF FACTS AND CONCLUSIONS OF LAW REGARDING DEBTORS’ MOTIONS TO EXCUSE THE FILING OFFORMB22A In case # 06-37157, docket # 7, and in case # 0635550, docket # 38, debtors seek relief from the requirement to file Bankruptcy Official Form B22A for chapter 7 debtors whose debts are not primarily consumer debts. Judges Isgur and Steen scheduled a joint hearing because couns...
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MEMORANDUM ON MOTION TO HOLD CREDITOR IN CONTEMPT FOR DAMAGES FOR VIOLATION OF AUTOMATIC STAY This contested matter is before the court upon the Motion by Debtor Teresa G. Hamby to Hold Creditor Arvels Used Cars in Civil Contempt and Liable for Damages for Violation of Automatice [sic] Stay 11 USCS [sic] § 362(A) [sic]; Bankruptcy Rule 9020 (Motion for Contempt) filed by the Debtor on October...
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OPINION Introduction1 Carrie L. Williams (“Borrower” or “Debtor”) filed a voluntary Petition under *100Chapter 13 of the Bankruptcy Code on July 9, 2005. The Debtor is the owner of real property located at 15 Grant Street, North East, Pennsylvania (the “Property”) which is encumbered by a Note and Mortgage dated February 19, 2000 executed by Williams in favor of Option One Mortgage Corp. (“OOMC”...
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*283 ORDER GRANTING DEFENDANT’S MOTION FOR REHEARING The Court conducted a hearing on October 31, 2006, on Defendant’s Motion for Rehearing (CP# 28). Defendant seeks reconsideration of this Court’s Final Judgment, entered on July 28, 2006 (CP# 224). For the reasons that follow, the Motion for Rehearing will be granted and the Court will enter an Amended Final Judgment. Factual Background and Pr...
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MEMORANDUM OPINION AND ORDER REGARDING MOTION FOR RELIEF FROM PRELIMINARY INJUNCTION On the same day that Quigley Company, Inc. (“Quigley”) filed this asbestos bankruptcy case, it also filed an adversary proceeding, which culminated in an order preliminarily enjoining asbestos-related litigation (the “Preliminary Injunction”) against its non-debtor parent, Pfizer Inc. (“Pfizer”). Three personal...
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OPINION On May 25, 2005, James F. Krempa (“Debtor”) filed a petition for relief under Chapter 7 of the Bankruptcy Code. 1 Shortly thereafter Debtor commenced this adversary proceeding against his former wife, Beth A. Westerbeek. Debtor seeks a declaration from the court that his obligation under a prior divorce judgment to make what the parties have characterized as “Sectio...
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MEMORANDUM OF DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT This adversary proceeding is before the court on Defendant’s Motion for Summary Judgment [Doc. #11] and the Trustee opposition [Doc. # 12]. For the reasons that follow, the motion will be granted. BACKGROUND The relevant facts are not in dispute. On April 4, 2004, Debtors in the underly*660ing Chapter 7 case executed a promi...
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MEMORANDUM OF DECISION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT This adversary proceeding is before the court on Defendant’s Motion for Summary Judgment [Doc. # 7] and Plaintiffs Memorandum Contra [Doc. # 12] and Supplement to Plaintiffs Memoranda Contra [Doc. ## 16, 18]. Also before the court is Defendant’s Reply and Motion to Strike Affidavit [Doc. # 13] and Plaintiffs response to that mo...
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MEMORANDUM ORDER OF COURT DENYING MOTION FOR RELIEF FROM AUTOMATIC STAY PURSUANT TO 11 U.S.C. SECTION 362(D)(1) AND 11 U.S.C. SECTION 365(P) In this core proceeding, 1 movant Honda Lease Trust seeks relief from stay regarding a vehicle leased to the Debtor Michael J. Szalinski. Honda Lease Trust asserts that the Debtor did not timely assume the lease and therefore the property is no longer es...
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MEMORANDUM OF DECISION Introduction David Lee Posey (“Posey”), counsel for debtors Steven George Iwasa and Susan Janette Iwasa (“Debtors”), filed an Application for Approval of Compensation. Docket No. 151. The chapter 7 trustee, Lois K. Murphy (“Trustee”) filed an objection to the application. Docket No. 158. Also before the Court is the Debtors’ Application for Approval of Comp...
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MEMORANDUM DECISION GRANTING TRUSTEE’S MOTION TO DISMISS The matter before the Court is the chapter 13 Trustee’s Motion to Dismiss for failure to comply with 11 U.S.C. § 109(h). 1 The Debtors obtained credit counseling 182 days before filing this case. The Trustee moved to dismiss this case because § 109(h) requires debtors to obtain credit counseling not more than 180 days before filing. The...
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OPINION TABLE OF CONTENTS I. INTRODUCTION.426 II. SUMMARY JUDGMENT STANDARDS.428 TTT FAfVTS 429 IV. PROCEDURAL HISTORY. CO V. COUNT I — VIOLATION OF THE AUTOMATIC STAY — 11 U.S.C. § 362(a)(3) . CO CO ^ A. Contentions of the Parties. 00 CO 1. The Debtor’s Position. CO CO ^ 2. The Defendants Position. ^ CO ^ B. Section 362(a)(3) May Stay ...
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SUPPLEMENTAL MEMORANDUM DECISION REGARDING DEFENDANT WESTERN PLAINS CAPITAL INC.’S MOTION FOR SUMMARY JUDGMENT Western Plains Capital Inc. (“Western”), one of three defendants (the “Defendants”) in this adversary proceeding commenced by the plaintiff Sam J. Alberts, trustee for the DCHC Liquidating Trust (the “Trust”), seeks summary judgment with respect to all counts alleged against ...
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MEMORANDUM OPINION On December 21, 2006, this court granted John Patrick Ball (the “Debtor”) permission to sell a condominium, located at 2 Waterfront Plaza, Morgantown, West Virginia (the “Condominium”) that he claims to own jointly with is wife, Anita Ball, to Rita and Stephen Tanner for the sum of $885,000. The United States Trustee (the “USTE”), the West Virginia University Foundation, In...
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MEMORANDUM OPINION Montague S. Claybrook’s (“Plaintiff’), the Chapter 7 trustee for Bake-Line Group, LLC (“Debtor”), brings this preference action against Consolidated Foods, Inc. (“Defendant”) to avoid a pre-petition transfer of $139,208.24 from the Debtor to Defendant. This opinion is with respect to Defendant’s motion for summary judgment (Doc. # 23) and Plaintiffs cross-motion for sum...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Adversary Proceeding relates to the Chapter 7 bankruptcy case of Mary Ross (“Debtor” or “Defendant”). Nuvell Credit Corporation (“Nuvell” or “Plaintiff’) filed this Adversary Complaint objecting to Defendants/Debtors’ discharge under two provisions of the Bankruptcy Code, 11 U.S.C. §§ 727(a)(2) and 727(a)(5). Nuvell is a creditor of the Deb...
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*618 MEMORANDUM OPINION THIS CASE is before the court on the chapter 11 trustee’s motion for summary judgment as to Count II of the complaint. Count II seeks to declare ¶¶ 9.1 and 9.2 of the operating agreement of Endeka Enterprises, L.L.C. to be valid and fully enforceable. They provide that the company will be dissolved upon the bankruptcy of a member and that upon dissolut...
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ORDER OVERRULING TRUSTEE’S OBJECTION TO DEBTOR’S AMENDED CLAIM OF EXEMPTION (Doc. No. 14) The Debtor, A. Steven Buonopane (“Debtor”), has claimed his homestead as exempt both under Article X, Section 4 of the Florida Constitution and based on it being owned by him as tenants by the entirety (“TBE”) with his spouse. The Court, in its Order on Debtor’s Motion to Alter or Amend Order ...
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DECISION ON MOTION TO REOPEN The debtor filed a petition for relief under Chapter 11 of the United States Bankruptcy Code on April 3, 2001. A proposed plan was confirmed on October 3, 2003. In the months following confirmation, proceedings in the case involved objections to a number of claims and some contempt proceedings, all of which were concluded by May 2005. Nothing further took ...
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MEMORANDUM OF OPINION AND ORDER Prepetition, Frederick G. Voltz, trustee of the Voltz Family Trust dated 9/25/95, obtained a state court judgment against ProCare Automotive Service Solutions, LLC based on damages for termination of a real estate lease. Voltz filed a proof of claim in ProCare’s chapter 11 case for the full amount of the judgment. The debtor objects, arguing that the claim is sub...
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MEMORANDUM OPINION This matter is before the Court on the United States Trustee’s (“UST”) motion pursuant to 11 U.S.C. § 1112(b) to convert this chapter 11 case to proceedings under *192 chapter 7 for cause. 1 The Court conducted an evidentiary hearing on the motion on January 17, 2007. At the hearing, the parties orally stipulated that cause exists, 2 ...
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DECISION AND ORDER This cause is before the Court after a Further Hearing on the Debtor’s Objection to the Trustee’s Motion for Turnover. In her Motion for Turnover, the Trustee seeks possession of those funds maintained by the Debtor on deposit in a bank account. The material facts giving rise to this controversy are not in dispute. On March 1, 2006, the Debtor, Angela Todd, fil...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION This adversary proceeding was tried before me on October 11 and 27, 2006. Having considered the pleadings, the pretrial order, the testimony of witnesses, the exhibits entered into evidence and the arguments of counsel, I make the following findings of fact and conclusions of law: I. INTRODUCTION Harvey and Barbara ...
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OPINION I. INTRODUCTION Plaintiff, Charles M. Forman, the Chapter 11 Trustee for the Estate of Bruce Earl Price and Angela Jocelyn Price (hereinafter “Plaintiff’ or “Trustee”) brings the within action seeking recovery of attorneys’ fees, interest, late fees, sheriffs fees and real estate taxes paid to Defendant Amboy National Bank (hereinafter “Am-boy” or “Movant”) upon closing on De...
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MEMORANDUM AND ORDER William Martin Trembulak (“Debtor”) filed a voluntary Petition under Chapter 7 of the Bankruptcy Code on October 16, 2006. On December 28, 2006, the Bankruptcy Court Clerk issued a Notice of Deficiency for Financial management Course Certificate (“Certificate”), indicating that *206 the case would be closed without a discharge being issued unless the Cert...
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MEMORANDUM 1 On November 7, 2002 (the “Petition Date”), Gruppo Antico, Inc., f/k/a Trend Holdings, Inc., et. al. (the “Debtor”) filed a voluntary chapter 11 bankruptcy petition. On November 11, 2003, the Debtor commenced this adversary proceeding by filing a Complaint (the “Original Complaint”) (docket no. 1) against Hipro Electronics, Inc. (“Hipro-USA”), alleging that ...
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OPINION May a Chapter 13 plan provide for the avoidance of a wholly undersecured lien on a debtor’s principal residence, and does the confirmation of the plan have res judi-cata effect if a creditor fails to object to the plan? This Court concludes that a lien on a debtor’s principal residence may be avoided if there is zero equity in the property to secure the claim, and that a confirmed...
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MEMORANDUM DECISION Plaintiff John E. Purcell (“Plaintiff’) seeks a declaration that a debt for unpaid personal property taxes owed to creditor Shabbir A. Khan, Tax Collector for San Joaquin County (“Defendant”), was discharged in the above-captioned bankruptcy case. Plaintiff also seeks injunctive relief prohibiting Defendant from enforcing the debt and ordering Defendant to release tax ...
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ORDER REGARDING MOTION FOR DEFAULT JUDGMENTi OR IN THE ALTERNATIVE, MOTION TO COMPEL DISCOVERY This adversary proceeding is before the court on Plaintiffs Motion for Default Judgment, or in the Alternative, Motion to Compel Discovery [Doc. # 42] and Motion to Compel Discovery [Doc. # 43], and the pro se response filed by Defendant Allen Eaton and his wife, Debbie Sandlin, which the court construes...
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MEMORANDUM DECISION GRANTING DEBTORS’ OBJECTION TO TRUSTEE’S MOTION TO DISMISS AND MOTION TO ABATE The matter before the Court is the Debtors’ Objection to the chapter 13 Trustee’s Motion to Dismiss and their Motion to Abate chapter 13 plan payments. The Court took this matter under advisement to determine whether chapter 13 debtors may modify a chapter 13 plan where the modification would resu...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Motion for Summary Judgment filed by the Plaintiff, the Chapter 7 Trustee of the Estate of American Pie, Inc. (the “Debt- or”), pursuant to which he seeks an order disallowing secured proofs of claim filed by the Defendants, Peter Poulos and Constantine Lambrenos (the “Defendants”), as well as an order dismissing the Counterclaim filed...
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Appellants Mohammad and Sadia Ria-zuddin (Debtors) and the Chapter 7 Trustee Susan Manchester (Trustee) appeal the bankruptcy court’s order denying their motions to reopen the Debtors’ Chapter 7 bankruptcy case. 1 The bankruptcy court denied the motions to reopen because it found the Debtors and the Trustee were judicially estopped from pursuing an unscheduled personal injury claim a...
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362 B.R. 478 (2007) In re Matthew W. THOMAS, Pamela J. Thomas, also known as Pamela J. Carroll, Debtors. Wachovia Bank, N.A., formerly known as First Union National Bank, Trustee for Long Beach Mortgage Loan Trust 2001-4, Plaintiff — Defendant — Appellee, v. J. Michael Morris, Trustee, Defendant — Plaintiff — Appellant. BAP No. 06-068, Bankruptcy No. 03-11882-7, Adversary Nos. 04-5228, 04-5232. U...
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MEMORANDUM OPINION DENYING DEBTORS’ MOTION TO RECONSIDER ORDER CONFIRMING CHARTER IS PLAN Mr. and Mrs. LaPlana are above median income debtors residing in Florida who have confirmed a Chapter 13 reorganization plan spanning five years. Paragraph 16 of the Order Confirming Debtors’ Chapter 13 Plan (the “Confirmation Order”) (Doc. No. 44) provides that “All future refunds from the Inter...
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ORDER ON CHAPTER 13 TRUSTEE’S OBJECTION TO CONFIRMATION OF PLAN This matter came on regularly for hearing on the Chapter 13 Trustee’s objection to confirmation of debtor’s proposed plan. The Court has subject matter jurisdiction over the proceeding pursuant to 28 U.S.C. § 1334 and General Order No. 312-D of the United States District Court for the Southern District of California. This is a co...
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MEMORANDUM OPINION In this adversary proceeding, Plaintiffs Dennis McLaughlin and Petra Patricia McLaughlin (“Debtors”) seek a determination, pursuant to 11 U.S.C. § 523(a)(8), that their student loan debt, owed to the U.S. Dept, of Education (“Education”) and to Educational Credit Management Corp. (“ECMC”) should be discharged for the reason that excepting the debts from discharge would impo...
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MEMORANDUM OF DECISION Pending in this Chapter 13 bankruptcy is confirmation of Debtor’s 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). The Trustee objects that Debtor’s food, clothing and personal care expenses exceed the local standards issued by the United States Int...
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*200 OPINION MOTION OF THE DEBTORS AND THE OFFICIAL COMMITTEE OF UNSECURED ASBESTOS CLAIMANTS FOR SUMMARY JUDGMENT THAT THE SECOND MODIFIED JOINT PLAN OF REORGANIZATION OF CONTINENTAL CASUALTY CO. AND CONTINENTAL INS. CO. IS UN-CONFIRMABLE AS A MATTER OF LAW The Debtors and the Official Committee of Unsecured Asbestos Claimants (collectively the “Debtors and ACC”) move for a...
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OPINION FIRST STATE INSURANCE COMPANY AND TWIN CITY FIRE INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT DENYING CONFIRMATION OF THE DEBTOR’S TENTH MODIFIED PLAN CONTINENTAL CASUALTY COMPANY AND CONTINENTAL INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT DENYING CONFIRMATION OF THE DEBTOR’S TENTH MODIFIED PLAN OF REORGANIZATION Currently pending before the court in the matter of...
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MEMORANDUM OPINION ON PLAZA CENTRO’S MOTION TO DISMISS On October 25, 2006, Defendant Plaza Centro, LLC, filed a motion to dismiss this adversary proceeding [docket no. 6]. For the reasons set forth below, the motion is granted. Background The property at issue in this proceeding is located at 525 Crosstimbers Street, Houston, Harris County, Texas (the Property). Prior to November 16, 2005, Moh...
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MEMORANDUM OPINION This matter came for trial on the merits to determine the dischargeability of a debt *112 pursuant to §§ 523(a)(2)(B), (a)(4) and (a)(6). As such this matter falls within the Court’s core jurisdiction under 28 U.S.C. § 157(b)(2)(I), 28 U.S.C. § 1334(a) and (b), § 157(a), § 151 and the Standing Order of Reference in the Western District of Texas. At the ...
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MEMIORANDUM I. INTRODUCTION The contested matter before the Court presents the issue of whether this Court should grant a motion to vacate final, non-appealable orders it entered allowing compensation to certain professionals employed in the Debtors’ prior Chapter 11 cases. The professionals whose fee awards have been challenged have raised a number of defenses which, if accepted, wi...
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MEMORANDUM OPINION The Court has before it two nearly identical motions to dismiss filed by Straight Through Processing, Inc. (the “Defendant”); one motion to dismiss the bankruptcy case and one motion to dismiss the adversary proceeding. In both motions, the Defendant requests change of venue as alternate relief. AmeriCERT, Inc. (the “Debtor”) has filed objections to the motions, and the Def...
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MEMORANDUM OPINION The Court has before it the amended complaint of Elaine M. Flanagan (the “Plaintiff”) in which she brings seven counts seeking to except certain debts from discharge under section 523 and to deny Phillip L. Howard, Jr. (the “Defendant”), a discharge under section 727. The Court held a half-day trial on October 25, 2006. The Plaintiff is pro se and the Defendant was ...
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DECISION & ORDER In this Adversary Proceeding, Córtese Brothers, Inc., seeks a determination that its claim against a former employee is non-dischargeable as a debt obtained by false pretenses, a false representation, or actual fraud. The central issue is whether the debtor falsely represented an intent to reimburse at the time that he acquired goods by using the credit of his employer. On Sept...
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MEMORANDUM OPINION This matter came before the court on the motion of Jonathan Jerome Bardell (the “Debtor”) requesting that Branch Banking & Trust, Riverside Trustee Company, and Draper & Goldberg, PLLC (the “Creditor”) be held in contempt of court for rejecting the Debtor’s post-petition mortgage payments. The Creditor filed a response to the motion asserting that refusal to accept paym...
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MEMORANDUM-OPINION This matter is before the Court on the Motion to Dismiss of Defendant Bank of America, N.A. (“Bank”) and the Response to the Motion to Dismiss of Plaintiffs Cobalt Ventures, LLC and Cobalt Mining, LLC (“Cobalt”). The Court considered the written submissions of the parties and the comments of counsel at the hearing held January 30, 2007. For the following reasons, the Court GR...
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OPINION 1 Before the Court is the Motion of Greenwich Capital Financial Products, Inc. (“Greenwich”) for dismissal of the above captioned complaint against it. For the reasons set forth below, the Court will grant the motion in part. 1. BACKGROUND American Business Financial Services, Inc. (“the Debtor”) and its subsidiaries operated as a financial service...
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OPINION 1 Before the Court is the Motion of Ocwen Loan Servicing, LLC (“Ocwen”) for dismissal of the above-captioned complaint against it. For the reasons set forth below, the Court will grant the motion in part. I. BACKGROUND American Business Financial Services, Inc. (“the Debtor”) and its subsidiaries operated as a financial services organization that o...
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OPINION 1 Before the Court is the Motion of Wells Fargo Bank, N.A. and Law Debenture Trust Company of New York (collectively, the “Indenture Trustees”) for dismissal of the above captioned complaint against them. For the reasons set forth below, the Court will grant the motion in part. I. BACKGROUND American Business Financial Services, Inc. (“the Debtor”)...
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OPINION 1 Before the Court are the Motion of Michael W. Trickey (“Trickey”) and the Berkshire Group, LP (“Berkshire”) for dismissal of the above captioned complaint against them. For the reasons Set forth *77 below, the Court will grant the motion in part. 1. BACKGROUND American Business Financial Services, Inc. (“the Debtor”) and its subsidia...
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MEMORANDUM OF DECISION On September 28, 2006, Debtors filed this chapter 13 case. Trustee, Robert G. Drummond, filed an objection to confirmation of Debtors’ plan, doc. no. 13, asserting among other grounds that the “Debtors’ plan fails to meet the disposable income requirements appearing at 11 U.S.C. § 1325(b)(1)(B). The Debtors’ Form B22C, Line 58, lists the Debtors’ disposable income in the ...
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MEMORANDUM OF DECISION On January 6, 2006, Plaintiffs filed an adversary proceeding complaint against the named Defendants. Defendants filed an answer, doc. no. 6 on April 5, 2006. On September 25, 2006, Plaintiffs, M. Penny Leatzow, of Kalispell, Montana, filed an amended complaint. On November 7, 2006, Defendants, represented by Charles E. Hansberry, filed a motion for summary judgment, doc. no...
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MEMORANDUM of DECISION In this Chapter 13 bankruptcy proceeding, the Chapter 13 Trustee, Robert G. Drummond, filed an Objection to Property Claimed as Exempt and a Motion for Certification of Claim of Unconstitutionality on March 27, 2006, challenging the constitutionality of 11 U.S.C. § 522(b)(3). The Trustee’s motion for certification of claim of unconstitutionally was granted by Or...
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MEMORANDUM OF DECISION In this case, the chapter 7 trustee, Gary S. Deschenes (“Deschenes”), of Great Falls, Montana, filed a motion for turnover of property by a custodian, doc. # 21, on September 30, 2006. On October 12, 2006, Debtors, through their attorney, Kraig C. Kazda (“Kazda”), of Great Falls, Montana, filed a response and requested a hearing on November 15, 2006. The Court condu...
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ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT This adversary proceeding came on before the Court for hearing on the parties’ cross-motions for summary judgment. The Plaintiff (“American Residential”) appeared by its attorney, Heather B. Thayer, Fredrikson & Byron, P.A. The Defendants (“the Debtors”) appeared by their attorney, Karl A. Oliver, The Oliver Group, PLC. Upon the moti...
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ORDER THIS MATTER is before the Court on Stipulation for Assumption of the Lease Agreement between Debtor and Cab East, *592 LLC (“Cab East” or “Lessor”) regarding a lease agreement for a 2004 Ford F-150 pickup truck. Counsel for the Cab East and the debtor’s attorney stipulated to the entry of an order approving the assumption of the lease agreement by the debtor under the terms of a Lease A...
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DECISION & ORDER BACKGROUND On July 13, 2006, James M. and Shane M. Grant (the “Debtors”) filed a petition initiating a Chapter 13 case, and George M. Reiber, Esq. (the “Trustee”) was appointed as their Chapter 13 Trustee. The Debtors filed a Chapter 13 Plan (the “Plan”) which provided, pursuant to that portion of Section 1325(a)(9) that has become known as the “Hanging Para...
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DECISION ON COMAIR MOTION FOR PRELIMINARY STRIKE INJUNCTION By order dated December 27, 2006 in accordance with the Court’s Decision dated *493 December 21 (the “December 21 Decision”), this Court granted the motion of debtor Comair, Inc. (“Comair”) under Section 1113 of the Bankruptcy Code, 11 U.S.C. § 1113, to reject its collective bargaining agreement with its pilots (...
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*587 OPINION AND ORDER This is a pre-BAPCPA case involving obligations resulting from a marital dissolution. Consequently, the difference between “alimony, maintenance and support,” on the one hand, and “property settlement,” on the other, may be dispositive of the issue of 11 U.S.C. § 523(a) dischargeability. Specifically, the Debtor was ordered by the matrimonial court to pay $17,000 of...
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MEMORANDUM OPINION AND ORDER DENYING MOTION TO REQUIRE THAT ADVERSARY COMPLAINT BE FILED UNDER SEAL Pending before the Court is a motion by a putative defendant seeking an order pursuant to 11 U.S.C. § 107(b)(2) requiring that the chapter 11 trustee, Janice B. Gru-bin (“Grubin” or the “Trustee”), be required to file a proposed adversary complaint under seal (the “Sealing Motion”) (ECF...
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MEMORANDUM OPINION I. INTRODUCTION On December 1, 2005, James J. Joseph (“Plaintiff’), the chapter 7 trustee, commenced an adversary proceeding against Eva Madray (“Defendant”) to recover the value of Donald J. Bran’s (“Debtor”) interest in real property located at 356 “Y” Place, Laguna Beach, California (the “Property”). On November 6, 2006, Defendant moved for summary adjudication ...
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OPINION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT BROUGHT SEPARATELY BY MICHAEL JORDAN AND WORLDCOM, INC. INTRODUCTION Before the Court are cross-motions for summary judgment separately brought by Michael Jordan (“Jordan”) and WorldCom, Inc. (hereafter referred to as the “Debtors” or “MCI”). BACKGROUND On or about July 10, 1995, Jordan and the Debtors entered into an end...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING TRIAL The Debtor filed a four count Adversary Complaint against William G. Nelson IV (“Nelson”) asserting causes of action by Repository Technologies, Inc. (“RTI” or “Plaintiff’): (1) for recharacterization of Nelson’s loans to equity; (2) equitable subordination of Nelson’s loan claims against the Debtor pursuant to Section 510(c)(1) ...
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MEMORANDUM OF DECISION An objection filed by the Chapter 13 Trustee, Robert G. Drummond (“Drum-mond”), of Great Falls, Montana, to the proof of claim, claim no. 3, filed by the Estate of Carl B. Field is pending before this Court. The Court originally set the objection for hearing on November 15, 2006, with notice to the parties in interest. Steven M. Johnson (“Johnson”), of Great Falls, ...
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ORDER This matter comes before the Court on a Rule to Show Cause (“Rule”) entered November 14, 2006 requiring attorneys Rebecca Goldberg Shiver (“Shiver”) and Jason Branham (“Branham”) and their law firm of Butler & Hosch, P.A. to appear and show cause why the Court should not enter sanctions against them for their practices before this Court. The Court has jurisdiction over this matter p...
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JUDGMENT Based upon the Findings of Fact and Conclusions of Law made in the attached Order of the Court, Debtor’s chapter 13 plan shall be confirmed by separate order to be submitted by the Trustee pursuant to the terms and conditions set forth in the attached Order. ORDER This matter comes before the Court on the chapter 13 trustee’s (“Trustee”) objection to Rebekah Eugene Rayb...
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OPINION 1 Introduction The within Chapter 7 bankruptcy case was commenced on November 3, 2006 (“Petition Date”) with the filing of an Involuntary Petition pursuant to 11 U.S.C. § 303 against Regional Anesthesia Associates, P.C. (“RAA” or “Alleged Debtor”) by PHN Physician Services, Inc. (“PHN”). The Alleged Debtor timely controverted the Petition with the fili...
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OPINION REGARDING MOTIONS FOR SUMMARY JUDGMENT I. Introduction On February 19, 2003, HSG/ATN, Inc. (“HSG”) filed a Notice of Motion For Allowance and Payment of Administrative Claim By HSG/ATN, Inc., pursuant to which HSG sought (1) earned commissions for the postpetition period of October 1, 2002 through December 16, 2002 in the approximate amount of $600,000, and (2) ongoing commis...
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MEMORANDUM DECISION Plaintiff John Van Curen, chapter 11 trustee of the estate of Michael Hat, (“Trustee”) seeks a judicial determination that certain crop insurance policies 1 and the proceeds therefrom are property of the bankruptcy estate pursuant to 11 U.S.C. § 541 2 and that any proceeds payable under the Subject Policies be turned over to the estate. 3 ...
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MEMORANDUM OF DECISION ON DEBTOR’S MOTION TO AMEND BANKRUPTCY PETITION (SCHEDULE C) [# 23] AND CHAPTER 7 TRUSTEE’S MOTION TO COMPROMISE CLAIM WITH JANET D. ORLANDO [# 26] This matter came before the Court for hearing on the Debtor’s Motion to Amend Schedule C[# 23], to which the Chapter 7 Trustee objected [# 24], and the Chapter 7 Trustee’s Motion to Compromise Claim with Janet D. Orlando [# 26...
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ORDER REGARDING FURTHER PROCEEDINGS ON TRUSTEE’S MOTION TO DISMISS This Chapter 13 case came before the Court for hearing on January 22, 2007 with respect to the Trustee’s motion to dismiss the debtor’s Chapter 13 case filed on December 12, 2006. The debtor appears by counsel Ricardo Casas; the Chapter 13 Trustee appears by Attorney Julia M. Ho-ham. The manner in which a change in the debtor’s ...
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MEMORANDUM DECISION DENYING UNITED STATES TRUSTEE’S MOTION TO DISMISS CASE FOR CAUSE PURSUANT TO 11 U.S.C. §§ 707(a), 109(h)(1) and 521(b) In the matter In re Elmendorf, 345 B.R. *90 486 (Bankr.S.D.N.Y.2006) 1 this Court determined, under 11 United States Code (“U.S.C.”) Sections 109, 301 and 362, it had the authority to strike rather than dismiss petitions of would-be debtors who had n...
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RULING ON TRUSTEE’S MOTION FOR TURNOVER OF PROPERTY OF THE ESTATE I. In this proceeding, Bonnie C. Mangan (“the trustee”), Trustee of the Chapter 7 estate of Kimberly Michelle Edwards (“the *56 debtor”) has filed a “Motion for Turnover of Property of the Estate” seeking the sum of $3,820.07 from the debtor. The parties submitted the matter to the court on a stipulati...
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ORDER AND OPINION This matter came on before the court on December 21, 2006 upon Countryhouse Service Group V, Inc.’s Motion for Allowance of Claim entered on November 1, 2006. Stephanie Osborne-Rodgers appeared for the Debtor, Tamara E. Guille-beaux, Nelson G. Harris appeared for the Creditor, Countryhouse Service Group V, Inc., and Sara A. Conti appeared as Chapter 7 Trustee. Having considere...
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MEMORANDUM The contested matter before the Court presents the issue of whether this Court should grant a motion to vacate final, non-appealable orders it entered allowing compensation to certain professionals employed in the Debtors’ prior Chapter 11 cases. The professionals whose fee awards have been challenged have raised a number of defenses which, if accepted, will compel denial of th...
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ORDER DENYING STAY PENDING APPEAL THIS MATTER comes before the Court on Christopher Leroy Anderson and Willow Reese Anderson’s (“Debtors”) Motion To Stay Order Pending Appeal (“Motion”). The underlying order was issued in connection with a motion for relief from the automatic stay, which is a contested matter. Debtors seek a stay of the order of this Court entered September 15, 2006 granting in...
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DECISION AND ORDER The issue before the court is whether the Debtor is eligible for relief under Chapter 13 of the Bankruptcy Code pursuant to 11 U.S.C. § 109(e). The court conducted a hearing on the matter in Roanoke on December 7, 2006. At that time, the court took the matter under advisement. After due consideration of the evidence and authorities and for the reasons stated herein, the...
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OPINION RE: TRUSTEE’S JUNE 1, 2006 MOTION FOR SUMMARY JUDGMENT The Chapter 7 Trustee, Marcia Meoli, has filed a motion for summary judgment in connection with her objection to exemptions claimed by Debtor Andrea Sanchez. The motion is granted in part and denied in part for the reasons stated in this opinion. BACKGROUND The pertinent facts are not disputed. 1 O...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the “Objection by the Cadle Company and Cadies of Grassy Meadows, II, L.L.C. to Trustee’s Final Account and Report before Distribution, Request for Compensation, and Report on Claims and Proposed Distribution.” Through their Objection, The Cadle Company and Cadies of Grassy Meadows, II, L.L.C. (collectively, “Cadle”) object to...
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MEMORANDUM DECISION (Re: Motion of William A. Gomes, Esq., For Allowance of Attorney’s Fees) Before the Court is a motion by William A. Gomes, Esq. (“Gomes” or “Debtor’s Counsel”) seeking allowance of fees for legal services that he provided to the Debtor in this bankruptcy case which initially sought relief under Chapter 13 and was thereafter converted to Chapter 7. Gomes seeks paym...
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OPINION The chapter 7 trustee appeals an order compelling him to abandon debtors’ residence. We REVERSE and REMAND. FACTS Gerald Adolphus Lynch and Doris Mae Gill (“debtors”) filed a joint chapter 13 1 petition on June 8, 2005, together with the required schedules. In their schedules, the debtors valued their residence at $560,000, subject to a deed of trust held by Downey Savings Bank in...
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MEMORANDUM DECISION This Chapter 13 case is before the Court upon Washington Mutual Bank’s Motion to Reconsider (Doc. 35) this Court’s Order and Memorandum Decision imposing sanctions against Washington for violations of the automatic stay. (Docs.31, 32). For the reasons set forth below, the Court’s December 14, 2006 Order is affirmed, and the Motion to Reconsider is DENIED. I. BACKGROUND ...
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*46 MEMORANDUM OPINION AND ORDER (1) OVERRULING OBJECTION TO EXEMPTION; AND (2) DENYING TRUSTEE’S REQUEST FOR AUTHORITY TO SELL HOMESTEAD TO PAY DOMESTIC SUPPORT OBLIGATION In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCA”), Congress added several provisions benefitting creditors holding claims for debts in the nature of alimony, maintenance and ...
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Opinion Before the Court are (1) the request for confirmation of the Amended Plan of Reorganization (the “Plan”) proposed by Fras-eella Enterprises, Inc. d/b/a Cash Today (the “Debtor”) and (2) the Motion of creditors Lawrence Turner, Linda Davis and Demyri Hill (together with the class they seek to represent, the “Consumers”) for Estimation of their Class Claim (“Estimation Motion”)....
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OPINION The primary issue in this case is whether the defendant established the ordinary-course-of-business defense to the trustee’s preference claim. The case presents an interesting and close question regarding one of the elements of that defense: that the payments be “made in the ordinary course of business or financial affairs of the debtor and the transferee.” The defendant satis...
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MEMORANDUM OPINION ON: (1) TRUSTEE’S MOTION FOR SANCTIONS AGAINST DAVID BARRY FOR CAUSING UNNECESSARY DELAY AND EXPENSE TO THE ESTATE; (2) DAVID BARRY’S MOTION TO DISMISS THE TRUSTEE’S MOTION FOR SANCTIONS AGAINST DAVID BARRY FOR CAUSING UNNECESSARY DELAY AND EXPENSE TO THE ESTATE; AND (3) REGARDING THE COURT’S SHOW CAUSE ORDER OF SEPTEMBER 1, 2006 AGAINST BEVERLY COCHENER, CHAD COCHENER, AND J...
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AMENDED MEMORANDUM OF DECISION DENYING DEBTORS MOTION TO EXTEND STAY UNDER § 362(c) AND DETERMINING THE EXTENT OF THE STAY THAT IS TERMINATED 1 Mr. McFeeley (“the Debtor”) filed a chapter 13 case within one year of filing another chapter 13 case. He therefore finds himself in a position where the automatic stay generally available to debtors throughout the pendency of a ban...
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MEMORANDUM OPINION This matter comes before the Court upon the Motions to Dismiss the Plaintiffs Complaint, which were filed separately by the Defendant, Steven V. Stemple (“Stem-ple”), and by the Chapter 13 Trustee in the underlying bankruptcy case, George W. Neal (“Trustee”). This Court has jurisdiction over these proceedings pursuant to 28 U.S.C. §§ 157(b) and 1334(b). Venue is proper ...
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RULING ON DEBTOR’S MOTION TO AVOID JUDICIAL LIEN I. ISSUE This proceeding involves the question of the extent to which a natural person may utilize the Connecticut homestead exemption statute when he owns a one-half interest in a three-family residence, resides in one of the units, and rents out the other two floors. The court held a brief hearing on December 27, 2006, a...
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OPINION In this Chapter 12 bankruptcy, Rafter Seven Ranches LP (“Debtor”) appeals the bankruptcy court’s denial of its objection to a creditor’s claim, as well as the denial of a motion to reconsider. For the following reasons, we affirm both orders of the bankruptcy court. I. BACKGROUND PACTS 1 In 2001, Debtor needed irrigation sprinkler systems on four quarter-sections of its Kansas far...
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MEMORANDUM ON MOTION OF CREDITORS FOR PAYMENT OF ADMINISTRATIVE EXPENSE This contested matter is before the court upon the Motion of Creditors Mims Gordon and Alta Marie Williams for Payment of Administrative Expense (Motion for Administrative Expense) filed by Mims Gordon and Alta Marie Williams on November 16, 2006. Ms. Gordon and Ms. Williams seek payment, pursuant to 11 U.S.C.A. §§ 105(a) a...
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MEMORANDUM OF DECISION Before the Court is the “Debtor’s Omnibus Objection to General Unsecured *629 Claims Asserted by European Distributors” (the “Objection” or “Objection to Claims”) filed by Access Cardiosystems, Inc. (the “Debtor”). The Objection and various supplementary memoranda filed by the Debtor and the claimants raise several issues of contract law and interpretat...
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MEMORANDUM OPINION ON MOTION TO CONFIRM TERMINATION OR ABSENCE OF AUTOMATIC STAY This proceeding relates to the Chapter 13 bankruptcy case filed by Sandra Curry (“Debtor”) on October 12, 2006. Debtor filed her previous voluntary bankruptcy *396 case under Chapter 13 of the Bankruptcy Code on September 16, 2005, Case No. 05-37752, while a foreclosure was pending against he...
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MEMORANDUM OPINION I. INTRODUCTION Phoebe Morse, United States Trustee (the “Trustee”), filed a motion to dismiss this bankruptcy case pursuant to § 707(b)(2) or § 707(b)(3) of the Bankruptcy Code (Doc. No. 17) (the “Motion”). 1 Mark and Angela Hartwick (the “Debtors”) filed an objection to the Motion (Doc. No. 22). The Court held a hearing on the Motion on December 13...
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OPINION REGARDING MOTIONS TO DISMISS, TO STAY, FOR RELIEF FROM THE STAY AND OTHER RELIEF Plaintiffs Continental Casualty Company (“CCC”) and Continental Insurance Company (“CIC,” and together with CCC, the “Plaintiffs”) commenced this adversary proceeding against Pfizer, Inc. (“Pfizer”), Quigley Company, Inc. (“Quigley”) — the debtor in possession and Pfizer’s wholly owned subsidiary — and sixty-...
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MEMORANDUM OPINION I.INTRODUCTION On July 22, 2002, Carolyn Dye (“Mov-ant”) filed an amended complaint against the defendants (collectively, “Defendants”), in part, to avoid and recover the debtor’s transfer of $9 minion to Andra Sachs (“An-dra”) on February 23, 2000 (the “Transfer”) under 11 U.S.C. §§ 547(b) and 550.1 Thereafter, Movant and Andra reached a settlement. In furtherance of the settl...
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OPINION GRANTING REORGANIZED DEBTORS’ PARTIAL SUMMARY JUDGMENT MOTION TO RECLASSIFY PROOF OF CLAIM NUMBER 3059 AS UNSECURED AND DENYING WALDINGER CORPORATION’S CROSS-MOTION FOR SUMMARY JUDGMENT I.INTRODUCTION Before the Court is the Motion of WorldCom, Inc., MCI Telecommunications Corp., and their subsidiaries (collectively, the “Debtors,” or “WorldCom”) for partial summary judgment ...
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OPINION This matter came before the Court in connection with the Trustee’s request for entry of a default judgment against the debtor, revoking his discharge under 11 *209 U.S.C. §§ 727(d)(1) 1 , and (d)(2). As set forth at greater length below, the Trustee’s request to revoke the debtor’s discharge is denied. The Court has jurisdiction to review and deter...
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MEMORANDUM ON OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN This contested matter is before the court on the Objection of Wells Fargo Financial Acceptance to Confirmation of Chapter 13 Plan (Objection to Confirmation) filed oh July 17, 2006, by Wells Fargo Financial Acceptance (Wells Fargo). The court held a preliminary hearing on August 16, 2006, at which time the parties agreed that an evide...
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In the debtors’ Chapter 13 case, Capital One Auto Finance (“Capital One”) is the holder of a claim in the amount of $20,279.80, secured by a purchase money security interest in a 2003 Chevrolet pickup truck. The truck was purchased and the debt was incurred within 910 days prior to the filing of the bankruptcy petition. The debtors’ Plan proposes to surrender the truck as full payment of the en...
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MEMORANDUM OF DECISION I. Introduction The Chapter 7 Trustee (the “Trustee”) filed this adversary proceeding seeking to avoid a transfer of real estate from Thomas J. Prichard (“Thomas”) and his non-debtor wife Karen Prichard (“Karen”) to Karen under the Uniform Fraudulent Conveyance Act (“UFCA”) in effect at the time, and 11 U.S.C. § 548(a). The parties submitted a Joint Pre...
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MEMORANDUM AND ORDER ON REAFFIRMATION AGREEMENT This matter comes before the court on the debtor’s motion to approve a reaffirmation agreement with the Ford Motor Credit Company (“FMCC”), filed by FMCC, pursuant to 11 U.S.C. § 524(c). BACKGROUND On May 31, 2005, the debtor entered into a Retail Installment Contract on a 2005 Ford Freestyle with Stamford Motors. That contract has been assigned to F...
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OPINION The debtors have filed a Chapter 13 plan that proposes to make payments for 36 months, primarily for the benefit of their secured creditors, with a de minimis dividend to unsecured creditors. An unsecured creditor and the Chapter 13 Standing trustee have each objected to the plan’s confirmation. They contend: (1) that the debtors’ future projected disposable income should be deter...
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MEMORANDUM OPINION This matter came on for hearing on July 13, 2006, and again on September 12, 2006, upon the Objection by Standing Trustee to Confirmation of Plan (the “Trustee’s Objection”), filed by Richard M. Hutson, II (the “Trustee”) on June 23, 2006, and upon the Objection of Ford Motor Credit Company to Proposed Order Confirming Plan (the “Ford Objection”), filed by Ford Moto...
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MEMORANDUM OF DECISION AND ORDER SUSTAINING OBJECTION TO CLAIM NO. 2, AND OVERRULING IN PART AND SUSTAINING IN PART OBJECTIONS TO CLAIM NOS. 1, 5, 6 AND 7 On December 20, 2006, Debtors’ filed their Objections to Certain Claims Filed by General Unsecured Creditors (“Objection”). A preliminary hearing was held on the Objection on January 17, 2007 at 10:00 a.m. A continued hearing was held o...
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MEMORANDUM OPINION This matter is before the Court on the Defendant’s Motion to Compel Arbitration, or in the Alternative, to Stay Action Pending Arbitration (the “Motion to Compel Arbitration”) (Doc. No. 4). The Motion to Compel Arbitration was filed by the Defendant in response to the Plaintiffs complaint in which she asserts claims against the Defendant for violations of the Truth ...
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JUDGMENT ON COMPLAINT TO ENFORCE THE TRUTH-IN-LENDING ACT After a trial on January 30, 2007, 1 the Court is prepared to rule on Debtor/Plaintiffs adversary complaint (Doc. No. 1) alleging violations under the Truth-in-Lending Act (“TILA”) 2 against defendant Centex. 3 The Court has jurisdiction to *260 hear this matter. 4 Based upon...
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Memorandum Opinion Before the Court is the Motion for Summary Judgment (the “SJ Motion”) of Defendant Ameriquest Mortgage Company (“Ameriquest”) and Plaintiffs’ Motion for Permission to Amend Complaint (the “Amendment Motion”). 1 For the reason that follow, the SJ Motion is granted and the Amendment Motion is denied. *720 FACTUAL AND PROCEDURAL BACKGROUND ...
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MEMORANDUM OPINION AND NOW, this 20th day of February, 2007, upon consideration of (a) the motion by Robert Shearer, the Chapter 7 Trustee in the instant bankruptcy case (hereafter “the Trustee”), for partial summary judgment in the above-captioned adversary proceeding, and (b) the Trustee’s underlying adversary complaint, wherein the Trustee seeks (i) a determination as to the validity, exte...
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ORDER RE: COMPLAINT TO AVOID TRANSFER AND FOR TURNOVER This matter came before the undersigned on January 24, 2007. Trustee Wesley B. Huisinga was represented by attorney Abbe M. Stensland. Defendant Greater Quad City Auto Auction was represented by attorney Jeffrey C. McDaniel. After the presentation of evidence and argument, the Court took the matter under advisement. This is a core proceedin...
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MEMORANDUM DECISION Before the Court is the motion of the Chapter 7 Trustee seeking approval of a proposed stipulation of settlement of the estate’s claims against Angelo Mignone (“Mignone”), a former principal of the Debtor 1 and Telcar Group Ltd. (“Telcar Group”), a company that sold its assets to the Debtor. Background The following facts are taken from the mot...
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MEMORANDUM OPINION 1 Before the Court is the request of Cambridge Properties, LLC (“Cambridge”) and Southbridge Savings Bank (“South-bridge”) (collectively, the “Non-Petitioning Creditors”) for attorneys’ fees and costs pursuant to 11 U.S.C. §§ 105(a) and 303® incurred in connection with the above-captioned involuntary bankruptcy case (the “Case”). The petitioning creditor,...
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MEMORANDUM OPINION This proceeding presents the court with the unfortunate task of protecting the public from the unqualified practice of a profession imbued with great public trust. It results from the Court’s order of November 28, 2006, directing Owaiian M. Jones (“Mr.Jones”) to appear before the Court on December 13, 2006, to show cause why he should not be held in contempt for his...
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ORDER REQUIRING CERTIFIED COPY OP TRANSCRIPT A review of Appellant Christine Ann Kanke, Administrator of the Estate of Mark Anthony Schanbacher’s Designation of Record, filed June 13, 2006, and Appendix, filed October 2, 2006, demonstrates that Appellant has not complied with Federal Rules of Bankruptcy Procedure 5007 and 8006; to wit, it has not filed certified copies of transcripts of minutes...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter comes to be heard on the objection of Kmart Corporation (“Kmart”) to claims 50112 and 50868 filed by Philip Morris Capital Corporation (“Philip Morris”) and claims 50110, 50111 and 50113 filed by its affiliate HNB Investment Corp. (“HNB”) (collectively, the “Claims”). An evidentiary hearing was held and the court makes the following ...
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MEMORANDUM OPINION Guaranty Bank & Trust Co. (“Guaranty”) filed a complaint against debtor Chris Levert Sanford (“Sanford”) alleging that Sanford’s debt to Guaranty is not dis-chargeable under 11 U.S.C. §§ 523(a)(2), (3), (4) and (6). The bank also objected to Sanford’s discharge under 11 U.S.C. §§ 727(a)(2), (3) and (6). 1 This memorandum opinion explains why Sanfor...
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OPINION This appeal from an amended stay relief order presents the question of the effect of a confirmed Chapter 13 1 plan on a claim to be paid outside of the plan. Applying preclusion analysis, we conclude that the chapter 13 plan and confirmation order did not bar the debtor from contesting an obligation based on a debt being paid outside the plan, and AFFIRM. I. FACTS ...
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MEMORANDUM OPINION AND ORDER This matter affords the court its first opportunity to address the issue of how an above-median income Chapter 13 debtor’s projected disposable income is to be determined. The Debtors here have submitted a plan that proposes to pay $290.00 per month to unsecured creditors. The Trustee, in her Report and Recommendation as to Confirmation, has not recommended confir...
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*760 DECISION AND ORDER This cause comes before the Court after a Hearing on the Debtor’s Objection to the Motion of the United States Trustee to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(2) and (b)(3). At the Hearing, it was stipulated that, prior to proceeding with the various issues raised in this action, a preliminary legal question should first be decided: Whether the ...
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OPINION This matter comes before the Court upon the request of Alan D. Carlton and Diane S. Carlton (“Debtors”) for confirmation of their First Amended Chapter 13 Plan (“Amended Plan”) and an Objection to Confirmation filed by the Chapter 13 Trustee. The Trustee asserts that the Debtors are not paying into the Amended Plan all of their projected disposable income for the applicable commit...
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MEMORANDUM OF DECISION INTRODUCTION On November 30, 2006, the chapter 7 trustee in this case, Ford Elsaesser (“Trustee”), filed a motion seeking approval of a compromise and settlement. Doc. No. 134 (the “Motion”). Clarence Joseph Rake (“Debtor”) filed an objection to the Motion. See Doc. No. 142. There were no other objections. The Motion and Debtor’s Objection came ...
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MEMORANDUM OPINION FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING ORDER GRANTING PARTIAL SUMMARY JUDGMENT Plaintiff Trustee, Kenneth R. Havis, filed this adversary proceeding to recover an alleged unauthorized post-petition payment to Defendants. Both Plaintiff and Defendants moved for summary judgment. The Court finds that there is no genuine dispute of material fact and...
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MEMORANDUM OF OPINION AND ORDER Debtors Northwest Airlines Corporation et al. (“Debtors”) have moved to require an ad hoc committee of equity security holders (the “Committee”) to supplement a statement pursuant to Bankruptcy Rule 2019 filed by counsel for the Committee. Debtors argue that the current 2019 statement is inadequate in that it fails to disclose “the amo...
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ORDER DETERMINING THE NATIONAL LABOR RELATIONS BOARD IN VIOLATION OF 11 U.S.C. § 362 FOR THE REASONS SET FORTH BELOW, this Court finds that the Nation *834 al Labor Relations Board (“NLRB”) violated 11 U.S.C. § 362. The following constitutes the Court’s findings of fact and conclusions of law as required by FRBP 7052. FINDINGS OF FACT On or about October 24,...
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MEMORANDUM DECISION I.INTRODUCTION Is a criminal restitution judgment dis-chargeable because it is payable to the victim and not the state? NO. The reasons for this conclusion are explained in the balance of this decision. II.FACTS The Debtor was convicted of operating as an unlicensed contractor. He was fined $750 and a criminal restitution judgment was entered against him for $22,00...
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Simon & Schuster, Inc. (“S & S”) is seeking to appeal directly to the United States Court of Appeals for the Third Circuit from this Court’s interlocutory order denying S & S’s motion for a temporary restraining order. This results in a procedural posture where two virtually identical issues relating to the appeal are simultaneously pending before two separate courts. The sole issue before this...
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MEMORANDUM DECISION This Adversary Proceeding is before the Court on motions for summary judgment filed by Defendant Leeza Cherniak (Doc. 35), and Defendant J. Martin & Associates, Inc. (Doc. 40). The motions are fully briefed. (Docs.36, 39, 40, 42, 46, 47). For the reasons set forth below, both motions *234 are GRANTED and the Trustee’s Complaint is DISMISSED WITH PREJUD...
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MEMORANDUM OPINION I. INTRODUCTION Karl and April Comtois (the “Debtors”) filed a voluntary petition under chapter 13 of the Bankruptcy Code 1 on February 8, 2006 (the “Petition Date”). The Debtors and Lawrence Sumski, the chapter 13 trustee (collectively, the “Plaintiffs”) commenced this adversary proceeding on March 13, 2006, by filing a complaint *338 against MAK Investments, LLC (the ...
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MEMORANDUM OPINION Under most circumstances, there is nothing unfair or suspect about a parent providing financial assistance to a child purchasing a home. And that appears to be all that the Defendant, Terry Hollis (“Hollis”), did in this case. He provided several loans to his daughter and her husband, Debtors Shawna and Mark Matlock (“Matlocks” or “Debtors”), to facilitate the purchase of a n...
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MEMORANDUM DECISION GRANTING MOTION TO DISMISS ERISA PREEMPTED CLAIM AND DENYING CROSS-MOTION TO AMEND Before the Court is the motion (the “Motion”) of Silicon Graphics, Inc. (“SGI”) to strike an affirmative defense or alternatively, to dismiss a counterclaim asserted by defendant Robert Bishop (“Bishop”), pursuant to Rule 12 of the Federal Rules of Civil Procedure, made applicable he...
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ORDER EXEMPTING DEBTOR FROM CREDIT COUNSELING This matter is before the court on the motion of the debtors for the exemption from credit counseling of Mr. Randolph Thomas Howard. A hearing was held in Wilson, North Carolina on January 24, 2007. 11 U.S.C. § 109(h)(1) requires that all debtors receive credit counseling within the 180-day period preceding the filing of their bankruptcy petition....
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ORDER DISMISSING CASE This matter is before the court on the issue of the debtor’s completion of credit counseling more than 180 days prior to the *591 filing of the petition. The debtor filed a voluntary petition pursuant to chapter 13 on February 2, 2007. The debtor filed a certificate of credit counseling indicating that the debtor completed his credit counseling on August 4, 2006. 11 U....
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ORDER REGARDING SUMMARY JUDGMENT This adversary proceeding is before the court on the motion of the defendant, Mr. Douglas W. Lyon, for summary judgment. A hearing was held in Fayetteville, North Carolina on January 4, 2007. A complaint was filed in this action by the trustee, Mr. Ocie Murray, for recovery of real property transferred by the debtor to the defendant, Mr. Lyon, or in the alternative...
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MEMORANDUM OPINION This matter came for hearing on February 9, 2007, upon the Objection to Confirmation of the Chapter 13 plan of the Debtors, Robert Bruce Ellegood and Judith Rash Ellegood (“Debtors”), filed by HSBC Auto Finance fik.a. Household Automotive Finance Corporation (“HSBC”). The Court took the matter under advisement. This Court has jurisdiction over these proceedings pursuant...
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MEMORANDUM OF DECISION ON MOTION TO RECONSIDER ORDERS Creditor Cab East LLC filed motions to approve two stipulations between itself and the chapter 7 debtor, John E. Creighton, under which stipulations the debtor would assume two prepetition vehicle lease agreements and “waive the effect, if any, the discharge under 11 U.S.C. § 524(a) has as to the assumed Lease Agreement^].” The mot...
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ORDER LIFTING AUTOMATIC STAY RETROACTIVELY This matter is before the court on the motion of Columbia University (“Columbia”) for relief from the automatic stay and to retroactively annul the stay. No response was filed by the debtor. The court, after reviewing Columbia’s motion, finds that the automatic stay should be lifted retroactively. The debtor filed a voluntary petition pursuant to cha...
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ORDER DENYING DISQUALIFICATION OF TRUSTEE This adversary proceeding comes before the court on the motion of the defendants for the disqualification of the trustee. A hearing was held in Fayetteville, North Carolina on January 4, 2007. Heritage Medical Associates, P.A. (“Heritage”) filed a petition for relief pursuant to chapter 11 of the Bankruptcy Code on March 25, 2004. The defendant, Mr. B...
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MEMORANDUM OPINION AND ORDER Before the court is the motion of Second Irongate Community Association (“Irongate”) to allow a late-filed secured claim in the amount of $2,237.93. No response was filed opposing the motion. The chapter 13 trustee and the attorney for the debtor were present at the hearing but took no position. Because the court was nevertheless concerned whether a legal basis exis...
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ORDER AVOIDING JUDICIAL LIEN AND ALLOWING EXEMPTION IN REAL PROPERTY The matters before the court are the debtors’ motion to determine valuation of real property and to declare the claim of Christina James as unsecured, the debtors’ motion to avoid judicial lien, and the debtors’ motion to amend schedules to claim an exemption in their real property. On January 17, 2007, the court conduct...
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ORDER DISMISSING CASE The matter before the court is the motion to dismiss the case, filed by creditor, Countrywide Home Loans, Inc. (“Countrywide”), in response to the debtor’s motion to extend the automatic stay. A hearing was held in Wilson, North Carolina on February 15, 2007. The debtor filed a voluntary petition for relief pursuant to chapter 13 of the Bankruptcy Code on January 29, 2007. Th...
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OPINION This matter having come before the Court on a Motion to Dismiss filed by Defendant, Andrew M. Byrd; the Court, having heard arguments of counsel, having reviewed written memoranda of the parties, 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. ...
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JUDGMENT Based upon the Findings of Fact and Conclusions of Law made in the attached Order of the Court, the Motion to Reconsider filed by John Atkinson, Elisabeth Beebe, Tammy Bang, Mike Thomas, and Dan Gaudreault is denied. ORDER DENYING MOTION FOR RECONSIDERATION This matter comes before the Court on the Motion for Reconsideration (“Motion”) filed by the following defenda...
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MEMORANDUM DECISION AND ORDER DETERMINING THAT FRAUDULENT TRANSFER CLAIM BEING PROSECUTED BY CREDITOR FRANKLIN DAY IN NEW YORK STATE COURT IS PROPERTY OF THE BANKRUPTCY ESTATE THIS MATTER came before the Court on January 18, 2007 at 2:00 p.m. on a status conference regarding the Motion of Chapter 7 Trustee Joel L. Tabas (the “Trustee”) to Approve Settlement Stipulation and Mutual Gene...
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DECISION & ORDER As amended by the State of New York in 2001, Article 9 of the Uniform Commercial Code now provides that “[a] security interest does not exist under this article in ordinary building materials incorporated into an improvement on land.” N.Y.U.C.C. § 9-334(a)(McKinney 2002). In the present instance, the debtors object to the secured status of a claim that asserts a hen o...
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MEMORANDUM OPINION Before the court is a valuation dispute between Debtors (also the “Floreses”) and Citifinancial Auto, Ltd. (“Citi”) posed in the context of confirmation of Debtors’ debt adjustment plan (the “Plan”) in their chapter 13 case. 1 On December 21, 2006, the court held a hearing respecting confir *800 mation of the Plan. At that time the court dete...
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AMENDED MEMORANDUM OPINION ON FT. MYERS HISTORIC, LJP.’S MOTION TO COMPEL DOCUMENTS Plaintiff Ft. Myers Historic, L.P. (“Ft. Myers”) asks that Attorney Bruce de’Medici be ordered to produce documents sought by subpoena on February 15, 2005 in relation to his representation of Franklin Arms Court, L.P. (“F.A.C., L.P.”) and Franklin Arms Court, Inc. (“F.A.C., Inc.”) in those entities’ bankr...
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AMENDED ORDER ON FEDERAL GOVERNMENT’S MOTION TO DISMISS The debtor filed for relief under Chapter 13 of the Bankruptcy Code on October 9, 2005. Debtor’s Chapter 13 plan was confirmed on January 23, 2006. On April 7, 2006 the debtor filed a proof of claim herein on behalf of the Social Security Administration (SSA) for overpayment of disability benefits; the debtor objected to this claim o...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Adversary case relates to the Chapter 11 bankruptcy case filed by Chapter 11 Trustee for Debtor Doctors Hospital of Hyde Park, Inc. (“Doctors Hospital” or “Trustee”). The Adversary Complaint pleaded a total of twenty-eight Counts (“Complaint”). Three of the Counts pertain to Defendant LaSalle Bank National Association, f/k/a LaSalle Nationa...
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MEMORANDUM OF OPINION This is an adversary proceeding brought by the chapter 11 trustee (the “Trustee”) and Official Committee of Unsecured Creditors (the “Committee,” and together with the Trustee, “Plaintiffs”) appointed in the chapter 11 case of MarketXT Holdings Corp. (“MarketXT Holdings,” “Trades-cape,” or the “Debtor”). Defendants are Softbank AM Corporation, f/k/a Softbank Finance ...
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*109 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION THIS CASE came before the Court for a final evidentiary hearing. The Debtor, Andrew F. Pisko, commenced this proceeding by filing a Complaint to Determine Dischargeability of Debt. In the Complaint, the Debtor seeks a determination that his income tax liabilities for the 1998, 1999, 2000, and 2001 tax years ar...
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ORDER OVERRULING TRUSTEE’S OBJECTION TO DEBTORS’ MODIFIED CHAPTER 13 PLAN The debtors in this Chapter 13 matter are above-median income debtors who own two vehicles free and clear of liens. They contend that, while they no longer make payments on their cars, the language of 11 U.S.C. § 707(b)(2)(A)(ii)(D entitles them to deduct from their disposable income calculations the cost of ownersh...
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OPINION REGARDING WHEN A MORTGAGE IS RECORDED UNDER MICHIGAN LAW IN ABSENCE OF THE MAINTENANCE OF AN “ENTRY BOOK” 1.Introduction This opinion addresses a legal issue that has arisen in this adversary proceeding and in numerous other adversary proceedings in the Bankruptcy Court. The issue is when a county register of deeds does not maintain an “entry book” as required by Mich...
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*511 MEMORANDUM OPINION I. INTRODUCTION Before this court is the Adversary Complaint Objecting to Discharge (the “Complaint”) brought by 8400 N.W. Expressway, LLC (the “Plaintiff’ or “8400 Expressway”) and Debtor’s Answer to Complaint Objecting to Discharge (the “Answer”) filed by Richard D. Morgan (the “Defendant,” “Mr. Morgan,” or the “Debtor”). This court has jurisdiction of this matter pu...
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MEMORANDUM OPINION On October 3, 2006, Laboratory Corporation of America filed an objection to Debtor’s discharge under 11 U.S.C. *130 § 727(a) and (d). 1 For the reasons set forth below, the Court finds the objection filed pursuant to 11 U.S.C. § 727(a) is untimely and, therefore, denied. Background Robert Avalos (“Debtor”) filed for chapter 7 ba...
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MEMORANDUM OPINION The Trustee asks this Court to allow assumption of a contingency fee agreement between the Debtor and Shane Kadlec [doc. no. 18]. As part of that assumption, the Trustee asks that the Court approve full payment of Kadlec’s attorney’s fees. Based on the findings of fact and conclusions of law stated below, the Court does not approve assumption of the contingency fee ...
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364 B.R. 390 (2007) In re TELLURIDE INCOME GROWTH LP, Debtor. Telluride Asset Resolution, LLC, Plaintiff-Appellant, Moving Limited Partners, Plaintiffs-Appellees, and Dennis Bullock, Lambie Bullock, Louis Duval, Muriel Jean Duval, Steve Hinkle, Mary L. Hinkle, Jerry D. James, Michael Milburn, Kenneth R. Miller, Eugene C. Moravec, Alda Moravec, Michael E. Monoscalco, Madelyn J. Monoscalco, Jill Ma...
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OPINION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT This proceeding is before the Court on the defendant’s motion for summary judgment, and the plaintiff-trustee’s cross-motion for summary judgment. Defendant Green Tree Servicing, L.L.C., formerly known as Conseco Finance Servicing Corporation (“Green Tree” 1 ), ap...
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DECISION DENYING MOTIONS TO DISMISS Before the Court are defendants’ motions to dismiss the amended complaints in ninety-five adversary proceedings pursuant to Bankruptcy Rules 7009 and 7012 and Federal Rules of Civil Procedure 9(b) and 12(b)(6). The adversary proceedings were commenced by debtors-plaintiffs to recover alleged fraudulent conveyances under Sections 544 and 548 of the Bankruptcy ...
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MEMORANDUM ORDER AND OPINION This matter is before the Court on the objection to Debtor’s homestead exemption 2 filed by Patricia Hamilton, the Chapter 7 panel trustee (“Trustee”), and an objection to discharge filed by Plaintiff, Felicia S. Turner, the United States Trustee (“UST”). The parties stipulate that this matter constitutes a core proceeding, 3 and the Cour...
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MEMORANDUM OPINION The above-styled case comes before the Court on the Chapter 7 Trustee’s Amended Partial Objection to the Secured Claim of Independence Bank (“Bank”). In the objection, the Trustee contends that due to a perfection error, the Bank holds only an unperfected security interest on a promissory note (“Note”), dated January 3, 2005, in the amount of $200,000.00 executed by Nat...
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MEMORANDUM This matter comes before the Court on the Motion for Summary Judgment filed by the Debtors with respect to their Objection to Claim filed by the Robert Anderson Trust (“Trust”). Upon consideration of the motions, the responses filed thereto, and the record in this case, the Court rules as follows: I. STATEMENT OF JURISDICTION This Court has jurisdiction over this matt...
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ORDER REGARDING OBJECTION TO CONFIRMATION The matter before the court is the objection filed by Wells Fargo Financial Acceptance (“Wells Fargo”) to confirmation of the plan proposed by the chapter 13 debtors, Telephius Letoinne Price and Shawa-na Denise Price. The issue before the court is whether the unnumbered paragraph immediately following 11 U.S.C. § 1325(a)(9) (sometimes referred to as th...
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MEMORANDUM OF DECISION IN SUPPORT OF ORDER DETERMINING STUDENT LOAN DEBT TO BE DISCHARGEABLE On March 15, 2006, Suzanne Dykstra (the “Debtor”) filed a Complaint to Determine Dischargeability of Debts (the “Complaint”) against Margaret Spellings, U.S. Secretary of Education and the U.S. Department of Education (collectively, the “Defendants”), seeking a determination that certain debts owed to...
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MEMORANDUM OPINION This opinion is with respect to the motion (Adv.Doc. # 15) of defendants Broad and Cassel, PA.., Robert F. Mallett, L.L.C. and Robert F. Mallett (collectively, “Defendants”) to dismiss the complaint of Montague S. Claybrook (“Plaintiff’), the chapter 7 trustee of the estates of Scott Acquisition Corporation (“Scott”) and Scotty’s Inc. (“Scotty’s”) (collectively, the “De...
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DECISION AND ORDER ON MOTION FOR APPROVAL OF SETTLEMENT AND PURCHASE AGREEMENT WITH D & 0 INSURERS In this contested matter 1 in a case under chapter 11 of the Bankruptcy Code, the Debtors move, pursuant to Bankruptcy Code section 363 and Bankruptcy Rule 9019, for approval of a settlement (the “Settlement”) with the Insurers under their D & 0 Policies 2 un...
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MEMORANDUM DECISION AND ORDER GRANTING, IN PART, DEBTORS’ MOTION FOR AN ORDER (I) AUTHORIZING DEBTORS TO OBTAIN REPLACEMENT POSTPETITION FINANCING TO (A) REFINANCE EXISTING POSTPETITION FINANCING AND (B) REPAY PREPETITION DEBT; (II) ALLOWING DEBTORS’ LIMITED OBJECTION TO CLAIMS; AND (III) DETERMINING VALUE OF SECURED CLAIMS The principal issue before the Court, is whether a trust inde...
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DECISION & ORDER BACKGROUND On June 21, 2006, Chrystal Rodwell (the “Debtor”) filed a petition initiating a Chapter 13 case, and George M. Reiber, Esq. (the “Trustee”) was appointed as her Chapter 13 Trustee. The Debtor filed an amended Chapter 13 Plan (the “Amended Plan”) which provided, pursuant to that portion of Section 1325(a)(9) that has become known as the “Hanging Pa...
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DECISION & ORDER BACKGROUND On July 18, 2006, Matthew J. and Tina K. Phillips (the “Debtors”) filed a petition initiating a Chapter 13 case, and George M. Reiber, Esq. (the “Trustee”) was appointed as their Chapter 13 Trustee. The Debtors filed a Chapter 13 Plan (the “Plan”) which provided, pursuant to that portion of Section 1325(a)(9) that has become known as the “Hanging ...
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DECISION & ORDER BACKGROUND On July 31, 2006, Mark P. and Erin E. Cassidy (the “Debtors”) filed a petition initiating a Chapter 13 case, and George M. Reiber, Esq. (the “Trustee”) was appointed as their Chapter 13 Trustee. On September 25, 2006, the Debtors filed an amended Chapter 13 Plan (the “Amended Plan”) which provided, pursuant to Section 506(a)(1), 1 that ...
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DECISION & ORDER BACKGROUND On May 17, 2006, Jeremy W. Freeman (the “Debtor”) filed a petition initiating a Chapter 13 case, and George M. Reiber, Esq. (the “Trustee”) was appointed as his Chapter 13 Trustee. The Debtor filed a Chapter 13 Plan (the “Plan”) which provided, pursuant to that portion of Section 1325(a)(9) that has become known as the “Hanging Paragraph, that the...
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Memorandum, Decision and Order This matter is before the Court pursuant to an adversary complaint filed by Neil Ackerman, Esq., the Chapter 7 trustee appointed in the case of Joseph Ventimiglia, Sr. and Frances Ventimiglia (collectively, the “Debtors”). The Chapter 7 trustee seeks to avoid certain conveyances made by the Debtors to their children and/or to have a constructive trust or...
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DECISION & ORDER BACKGROUND On March 9, 2006, Michael and Shannon A. Colombai (the “Debtors”) filed a petition initiating a Chapter 13 case, and George M. Reiber, Esq. (the “Trustee”) Was appointed as their Chapter 13 Trustee. The Debtors filed a Chapter 13 Plan (the “Plan”) which provided, pursuant to that portion of Section 1325(a)(9) that has become known as the “Hanging ...
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DECISION & ORDER BACKGROUND On August 2, 2006, Omayra Martinez (the “Debtor”) filed a petition initiating a Chapter 13 case, and George M. Reiber, Esq. (the “Trustee”) was appointed as her Chapter 13 Trustee. On September 22, 2006, the Debtor filed an amended Chapter 13 Plan (the “Amended Plan”) which provided, pursuant to Section 506(a)(1), 1 that the claim of Am...
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DECISION & ORDER BACKGROUND On May 3, 2006, Jonathan T. Vanmanen (the “Debtor”) filed a petition initiating a Chapter 13 case, and George M. Reiber, Esq. (the “Trustee”) was appointed as his Chapter 13 Trustee. The Debtor filed a Chapter 13 Plan (the “Plan”) which provided, pursuant to that portion of Section 1325(a)(9) that has become known as the “Hanging Paragraph, that t...
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MEMORANDUM This matter comes before the Court on the Ninth Omnibus Objection to Claims filed by Steven L. Victor, the Plan Administrator (“Administrator”) and the Motion for Leave and for Enlargement of Time to File Administrative Expense Claim filed by Orix PLC Houston Venture (“Orix”). Both of these motions were filed in the main bankruptcy case. Motions for summary judgment filed in the advers...
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PW Enterprises, Inc. (“Plaintiff’) appeals the bankruptcy court’s order denying its request for standing to prosecute a nine-count complaint against the State of North Dakota, the North Dakota Racing Commission, the North Dakota Breeders Fund, the North Dakota Purse Fund, and the North Dakota Special Promotions Fund (collectively “Defendants”). We have jurisdiction over this appeal from the final...
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Bellamy’s Inc. (“Artisan”) appeals the bankruptcy court’s order determining that the lien of Genoa National Bank (“Lender”) in certain farm equipment owned by Michael R. Borden (“Debtor”) takes priority over the Artisan’s lien in the same equipment. 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 revers...
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364 B.R. 407 (2007) In re TELLURIDE INCOME GROWTH LP, Debtor. Dennis Bullock, Don Gerber, Steve Hinkle, Mary L. Hinkle, Jerry D. James, Don G. Lyle, Jon R. Lyle, Kenneth R. Miller, Michael E. Monoscalco, Madelyn J. Monoscalco, Jill Marie Monoscalco, Laura C. Monoscalco, Eugene C. Moravec, Joseph R. Nardone, Howard W. Nutt, Ralph Edward Preston, Ken E. Rhode, James Sterling, Sandra R. Tingle, R.M....
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MEMORANDUM OPINION This matter comes before the Court on the objection of AmeriCredit Financial Services, Inc. (the “Creditor”) to confirmation of the amended Chapter 13 plan filed by Linda J. Blanco (the “Debtor”) because the Debtor proposes to surrender its collateral in full satisfaction of the Creditor’s claim. For the reasons set forth herein, the Court sustains the Creditor’s ob...
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AMENDED ORDER Before the Court are two motions for relief from the automatic stay, one filed by Merchant & Farmers Bank of Dumas (“MFB”) and one filed by Union Bank & Trust Company (“UB”). Jason and Alice Curtis (“Debtors”) first filed for relief under the provisions of Chapter 12 of the United States Bankruptcy Code. On June 30, 2006, the case was converted to Chapter 7. R...
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MEMORANDUM OPINION Rene A. Chandler (the “Debtor”) claims an exemption in real property that she owns in Wellsburg, West Virginia pursuant to 11 U.S.C. § 522(d). The Debtor, a former domiciliary of Georgia, has not lived in West Virginia for a period of 730 days preceding her Chapter 7 bankruptcy petition. Martin P. Sheehan, the Debtor’s Chapter 7 trustee (the “Trustee”), objects to t...
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MEMORANDUM OPINION On June 17, 2006, Virgil B. LaRosa died. His Chapter 11 bankruptcy case is continuing to be jointly administered with that of his spouse, Joan LaRosa. Judy L. Shanholtz and the law firm of McNeer, Highland, McMunn and Varner, L.C. (“MHMV”), counsel for the Chapter 11 debtors-in-possession Virgil and Joan La-Rosa (the “Debtors”), filed an application with the court t...
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MEMORANDUM OPINION Michelle Denise Johnston (the “Debtor”) filed this adversary proceeding against Te *732 lecheck Services, Inc. (“Telecheck”), on September 13, 2006, seeking damages for violation of the automatic stay and discharge injunction of the Bankruptcy Code. In addition to the Bankruptcy Code’s causes of action, the Debtor asserts ancillary claims under West Vir...
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MEMORANDUM DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The chapter 7 trustee brought this adversary proceeding to avoid the mortgage lien of the defendant and preserve it for the benefit of the estate. The defendant answered the complaint and, due to the complexity of the subordinated lien held by Charles Cass on the same property, the matter was compromised. That compromise was s...
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ORDER PARTIALLY GRANTING AND PARTIALLY DENYING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT These § 547 preference actions are before this Court on Defendants’ assundried Motions for Summary Judgment. These motions were considered at a consolidated hearing concluded on September 20, 2006. As described below, these motions are GRANTED IN PART, DENIED IN PART. PRIOR PROCEEDINGS ...
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MEMORANDUM OPINION The Court considers whether to dismiss Emanuel Jarrell’s chapter 7 case because he failed to obtain pre-filing credit counseling, or, alternatively, because his filing allegedly constitutes an abuse of the Bankruptcy Code under section 707(b) of the Bankruptcy Code. Dismissal under section 707(b) was raised by the motion of Huntington National Bank. Hearing was held on Janu...
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DECISION OF THE COURT GRANTING, IN PART, AND DENYING, IN PART, DEFENDANTS’ MOTIONS TO DISMISS 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 to dismiss filed by all defendants to this adversary proceeding except Leo W. Ladehoff and the separate...
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*356 MEMORANDUM DECISION ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT The chapter 7 trustee brought this adversary proceeding to avoid the mortgage lien of defendant Argent Mortgage Company, LLC, and to preserve it for the benefit of the estate. Argent answered the complaint and asserted affirmative defenses. The trustee subsequently filed an amended complaint, asserting id...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Under consideration by the Court is a motion (the “Motion”) filed by Mark W. Swimelar, Esq. (“Trustee”) and Glen E. and Mary I. Brickey (“Debtors”) (collectively, the “Movants”) on December 21, 2006, pursuant to § 521(f)(4) of the United States Bankruptcy Code, 11 U.S.C. § 101— 1330 (“Code”). Opposition to the Motion was filed ...
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MEMORANDUM DECISION AND ORDER DENYING MOTION BROUGHT UNDER RULE 60(b) FOR RELIEF FROM THE ORDER APPROVING THE SALE OF CERTAIN TURBINES Before the Court is the motion of Axford Consulting (“Axford”) pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (“Rule 60(b)”) for relief from an order of this Court so that Axford may pursue a claim for a 3% broker fee of approximately $1,440,00...
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OPINION Appellant/Debtor Ronald Joseph Alexander (“Debtor”) appeals an order of the bankruptcy court of the Western District of Oklahoma. The Debtor argues that the bankruptcy court erred when it allowed a creditor’s expert witness to give opinion testimony on hearsay documents and then inappropriately weighed such evidence when it denied confirmation of the Debt- or’s Chapter 13 plan and...
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UNDER ADVISEMENT DECISION RE: NEW HOPES’S MOTION TO LIFT STAY On August 3, 2006, Debtor Covenant Christian International, Inc., filed its Chapter 11 petition. Just over one month later, New Hope Partners, LLC’s (“New Hope”) filed for stay relief to allow it to foreclose its lien against certain real estate owned by Debtor. Both Debtor and the Lois Cunningham Trust filed objections. An evidentia...
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MEMORANDUM OF DECISION In this adversary proceeding the Plaintiff/Debtor David Hamilton (“David”) seeks a determination that excepting debt from three (3) educational loans in the approximate amount of $32,154.62 from his discharge would impose an undue hardship on him under 11 U.S.C. § 523(a)(8). Defendant North Carolina State Educational Assistance Authority (“NCSEAA”) opposes David’s c...
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MEMORANDUM The limited issue before the Court is how “projected disposable income” for purposes of confirming a chapter 13 plan is to be calculated for above-median income debtors under the provisions enacted by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”). At the final hearing on confirmation, the Court requested that the parties submit briefs on the issue ...
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ORDER Before the Court is the Chapter 13 Trustee’s objection to confirmation of the plan proposed by Constance A. Luton (“Debtor”), who filed a voluntary petition for relief under the provisions of Chapter 13 of the United States Bankruptcy Code on April 8, 2006. The Trustee’s objection raises a difficult issue related to a provision added to the Bankruptcy Code by the Bankruptcy...
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MEMORANDUM OF DECISION GMAC, LLC filed a motion for payment of administrative expenses (“Motion”) [Doc. # 56] to which Debtor objected [Doc. # 57]. GMAC contends that Debtor assumed a motor vehicle lease through his confirmed chapter 13 plan, and that the post-petition and post-confirmation breach of that lease should result in payment of an administrative expense claim of $12,477.19 arising ...
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MEMORANDUM of DECISION Before the Court in this Adversary Proceeding is the “Motion for Summary Judgment and Interpleader Award of Entire Wombold Settlement Proceeds to Bankruptcy Estates” filed on January 29, 2007, by counsel for the Defendant/Trustees, Darcy M. Crum, Joseph V. Womack, Richard J. Samson, William M. Kebe, Jr., Ross P. Richardson, Gary S. Deschenes, and Donald W. Torge...
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*847 MEMORANDUM OPINION ON MOTION OF U.S.TRUSTEE TO DISMISS CHAPTER 7 CASE This cause came on for hearing on February 22, 2007, upon the United States Trustee’s (the “UST”) Motion to Dismiss the above Chapter 7 case (Doc. 37). Present at the hearing were Pamela Rice representing the United States Trustee and Scott R. Needleman representing Tracy Graham and Beth Ann Graham (collectively the ...
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MEMORANDUM AND ORDER ON MOTIONS FOR ATTORNEYS’ FEES AND COSTS The matters before the court involve two motions by Prologis Six Rivers Limited Partnership (“Prologis”) for attorney fees and costs. BACKGROUND Regrettably, the issues raised in these motions have been protracted due to unreasonable objections by the chapter 11 debtor, Peter J. Gould, d/b/a Cherry Hill Development Co...
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DECISION AND ORDER This cause comes before the Court upon the Plaintiff/Trustee’s Motion for Summary Judgment. The PlaintiffiTrustee’s Motion for Summary Judgment is brought upon her Complaint to Revoke the Discharge of the Defendant/Debtor, Gregory A. Thompson. The Debtor failed to respond to the Summary Judgment motion within the time permitted by local rule. After reviewing the Tru...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the “Motion of KAC Associates, LLC and Brian Conefrey to Compel Compliance with State Court Order or, in the Alternative, to Dismiss the Case or Grant Relief from Stay” (the “Motion to Compel”). Pursuant to the Motion to Compel, KAC Associates, LLC (“KAC”) and Brain Conefrey (“Cone-frey”)(collectively, “KAC”) primarily seek an...
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MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT Plaintiff, Holly Sells, filed separate Complaints under 11 U.S.C. § 523(a)(6) against Defendants John F. Huffer, Jr. *80 and Mike Porter (the “Defendants”) on March 6, 2006. The Defendants each filed an Answer to the Plaintiffs Complaints, and Plaintiff filed Motions for Summary Judgment in each case. The followi...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court is a motion filed on December 29, 2006, on behalf of Peter Barton, et al. (“Respondents”) 1 pursuant to Rule 26(c) of the Federal Rules of Civil Procedure (“Fed.R.Civ.P.”), applicable to the contested matter herein pursuant to Rules 7014 and 7026 of the Federal Rules of Bankruptcy Pro...
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AMENDED ORDER ON DEBTORS’ APPLICATION FOR WAIVER OF FILING FEE This chapter 7 case came on for hearing on February 26, 2007, on the Debtors’ motion for reconsideration [CP 21] of the Court’s order signed January 24, 2007, and entered January 25, 2007 [CP 16] which denied their application for waiver of the filing fee for their chapter 7 case. Prior to the enactment of the Bankruptcy Abuse P...
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MEMORANDUM OPINION SUSTAINING DEBTOR’S OBJECTIONS TO CLAIMS 11, 12, 13, AND U The debtor, Marcita Taylor, objects to four claims filed by B-Line, LLC (“B-Line”) on two grounds. First, the debtor argues that B-Line has failed to demonstrate any enforceable agreement establishing a debt due by the debtor to it pursuant to Section 502(b) of the Bankruptcy Code. 1 Second, the debtor argues that...
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ORDER After notice and hearing, and for the reasons set forth in the accompanying Opinion, the Motion of the United States *409 Trustee to dismiss the chapter 7 bankruptcy case of Melvin G. Mundy is DENIED. OPINION Procedural and Factual History Before me is the motion of the United States Trustee (“UST”) to dismiss the bankruptcy petition of Melvin...
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MEMORANDUM DECISION ON OBJECTION TO CONFIRMATION The Court is asked to interpret the “Hanging Paragraph” added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Pub.L. 109-8; nominalized as “BAPCPA”) to 11 U.S.C. § 1325(a)(5). One function of the Hanging Paragraph is to prevent “bifurcation” or “stripping” of certain undersecured creditors’ claims (usu...
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MEMORANDUM OPINION This adversary proceeding is before the court on the defendants’ motion to dismiss the plaintiffs complaint under Rule 12(b)(6), Fed.R.Civ.P. 12(b)(6) (made applicable by Fed. R. Bankr.P. 7012(b)). The plaintiff is CLC Creditors’ Grantor Trust *561 (the “Trust”), a trust created by the confirmed plan of debtor Commercial Loan Corporation (“CLC”). The de...
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MEMORANDUM OPINION RE TRUSTEE’S OBJECTION TO HOMESTEAD EXEMPTION At the time Laura Lane (debtor) filed bankruptcy, she claimed a homestead exemption in the home where she resided. After filing, debtor sold her residence, with the trustee’s consent. 1 The trustee filed a precautionary objection to debtor’s claim of a homestead exemption. Although the trustee did not challenge de...
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MEMORANDUM-OPINION This matter is before the Court on the Application for Compensation for Retail Consulting Services, Inc. (“RCS”) as Financial Advisors of Debtor Fashion Shop of Kentucky, Inc. (“Debtor”) (the “Application”), the Limited Objection of Creditor Padma’s Plantation (“Padma”) and the Objection of Cadle Company II, Inc. (“Ca-dle”). The Court considered the written submissions and ...
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ORDER DENYING DEBTOR’S MOTION TO SHORTEN THE PREJUDICE PERIOD SO AS TO PERMIT THE FILING OF A NEW PETITION THIS MATTER came before the Court at 9:30 a.m. on March 7, 2007 on Lauren M. Skolnick’s (the “Debtor”) Emergency Motion to Shorten the Prejudice Period (the “Motion”) [CP 55] filed on the afternoon of March 6, 2007. Present at the hearing were the Debtor, who is proceeding pro se on th...
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365 B.R. 900 (2007) In re Andy Lee & Kerri Lynn SUTTON, Debtors. J. Kevin Checkett, Trustee, Appellant, v. Andy Lee & Kerri Lynn Sutton, Appellees. No. 06-6059WD. United States Bankruptcy Appellate Panel of the Eighth Circuit. Submitted: January 25, 2007. Filed: March 16, 2007. *901 *902 Victor F. Weber, Kansas City, MO, Kevin Checkett, Carthage, MO, appeared on the brief, for Appellant. ...
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Household Industrial Finance Co. (“Household”) appeals the bankruptcy court’s order granting summary judgment in favor of Dwight R.J. Lindquist, the chapter 7 trustee of the Debtors’ bankruptcy estate, 1 avoiding Household’s purported mortgage on the Debtors’ homestead. For the reasons set forth below, we affirm the decision of the bankruptcy court. 2 I.STANDARD OF REVIE...
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OPINION INTRODUCTION The following is the Court’s decision on the Motion of the Debtors 1 for an Order Authorizing and Approving Management Incentive Plan and Sales Bonus Plan (“the Motion”). Debtors seek approval for debtors Anchor Hocking Glass Operating Company LLC, Anchor Hocking CG Operating Company and GHP Operating Company LLC (collectively, “Anchor Hocking”...
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MEMORANDUM DECISION DENYING MOTION FOR CLASS CERTIFICATION Tracy Kirkman and Taggert Strickland (the “Movants”) filed a class proof of claim, and now move to certify a class consisting of in-store managers formerly employed in the debtors’ California stores. The Movants claim that the proposed class was deprived of overtime pay and other overtime benefits in violation of California law. F...
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Creditor Lawrence Athletic Club (“LAC”) appeals a judgment of the United States Bankruptcy Court for the District of Kansas entered in favor of Tara Bushaw Scroggin (“Debtor”) for damages and sanctions resulting from LAC’s willful violation of the automatic stay. Debtor filed a motion to dismiss the appeal as moot which is also before this Court. For the following reasons, we determine that: 1)...
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MEMORANDUM OF DECISION ON REMAND FROM DISTRICT COURT I. INTRODUCTION On December 9, 2004, the United States District Court for the District of Connecticut (Covello, J.) issued a Memorandum and Order in an appeal from rulings of this Court in the above-captioned case and adversary proceeding. That Memorandum and Order, inter alia, remanded the proceedings back to this Court...
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MEMORANDUM OPINION AND ORDER This matter comes before the court on the timely motion of Donald Vollmer (the “Debtor”) for reconsideration of the Court’s ruling granting him a temporary waiver of the credit counseling requirement of the Bankruptcy Code. 1 *812 The Debtor filed pro se a voluntary petition for relief under chapter 7 of the Bankruptcy Code on January 30, 2007. The Debtor ...
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MEMORANDUM OPINION Now before the Court are two reaffirmation agreements submitted for approval by the Debtors, Akhter and Farah Husain (the “Debtors”). For reasons set forth below, the Court finds that the agreements are not in the best interests of the Debtors, and therefore, the Court declines to approve the two reaffirmation agreements. FACTUAL BACKGROUND The Debtors fil...
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MEMORANDUM OF DECISION ON REMAND FROM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS This matter comes before the Court on remand from the United States District Court for the District of Massachusetts (“District Court”) following an appeal of this Court’s decision of June 30, 2006 by the Defendant Ameriquest Mortgage Company (“Ameriquest”). The District Court remanded the...
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MEMORANDUM OPINION ON DEBTOR’S MOTION FOR SANCTIONS This opinion addressees the propriety of a post-petition wage garnishment by the Attorney General for the State of Texas, and whether it was a violation of the automatic stay provision of the Bankruptcy Code in light of § 362(b)(2)(C). I. JURISDICTION The Court has jurisdiction pursuant to 28 U.S.C. §§ 1334 and 151, and the...
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MEMORANDUM OPINION AND ORDER DENYING MOTION OF PLAINTIFFS TO REMAND AND ABSTAIN I. INTRODUCTION Principal Life Insurance Company and Petula Associates, Ltd., the Plaintiffs, move to remand this adversary proceeding to the 116th Judicial District Court of Dallas County, Texas (hereinafter, the “State Court”). The Defendants oppose the motion. The court conducted a hea...
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MEMORANDUM OPINION GRANTING DAIMLER CHRYSLER’S MO-' TION TO SET ASIDE ORDER DENYING MOTION TO CONFIRM TERMINATION OF THE AUTOMATIC STAY The issue raised is whether the recent changes to the Bankruptcy Code mandate the entry of comfort orders 1 in circumstances where the debtor has either ineffectively or untimely taken action to redeem, reaffirm, or surrender secured collat...
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MEMORANDUM OPINION Before the Court are three motions filed by the Plaintiff, Netria Corporation (“Net-ria”). Netria sued the Defendant, Aric N. Graham (“Graham”) on several grounds, including misappropriation of trade secrets, in the Rockingham County Superior Court, which granted summary judgment in favor of Netria on the misappropriation count and ordered sanctions against Graham f...
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MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT By his complaint in this adversary proceeding, the chapter 7 trustee, Joseph Braunstein, seeks to recover for the bankruptcy estate certain real property that the debtor, Carol F. Grassa (“Carol” or “the Debtor”), held only as trustee of the Grassa Family Realty Trust and which, shortly before her bankruptcy filing, she...
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MEMORANDUM OPINION This matter comes before the court on the adversary complaints filed by Green Bay Packaging, Inc. against Jeffrey F. Os-carson (“Jeff’) and Oscar F. Oscarson (“Fred”). Green Bay seeks a finding that Jeff cannot discharge a debt owed to Green Bay pursuant to 11 U.S.C. § 523(a)(2)(B), and that Jeffs discharge should be denied pursuant to 11 U.S.C. § 727(a)(4). Green Bay a...
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MEMORANDUM OPINION This matter came for hearing on February 22, 2007, upon the Objections to Confirmation of the Chapter 13 plan of the Debtor, Katrina Askew Phillips (“Phillips”), by Triad Financial Corporation (“Triad”) and George W. Neal, Chapter 13 Trustee (“Trustee”). The Court took the matter under advisement. This Court has jurisdiction over these proceedings pursuant to 28 U.S.C. § § 15...
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MEMORANDUM OPINION THIS MATTER coming on before the court on October 25, 2006 in Winston-Salem, North Carolina upon the Motion by Brokers, Inc. for Summary Judgment. Alexander Barrett and J. David Yarbrough appeared on behalf of Brokers, Inc. (“Brokers” or “Debtor”); Joseph R. Beatty and R. Thompson Wright appeared on behalf of Carlton Eugene Anderson; and William E. West, Jr. appeared on...
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ORDER This case is before the court on the motion of Wilmer Chaney (the “Debtor”) to extend the automatic stay pursuant to § 362(c)(3)(B) of the Bankruptcy Code. The Debtor filed his chapter 13 bankruptcy case on December 13, 2006 (the “Petition Date”); and on December 25, 2006, he filed a motion to extend the automatic stay. A hearing was conducted on January 10, 2006, at which the Debtor ap...
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Debtor James Bruce Preece appeals from the Bankruptcy Court’s 1 Judgments that his debts to Ken Schoenfelder, Blue Skies, Inc., and Central Boiler, Inc. are nondischargeable under 11 U.S.C. § 523(a)(2)(A). For the reasons that follow, we affirm. FACTUAL BACKGROUND Introduction Debtor Bruce Preece was the sole shareholder, director, and CEO of Helicopter Flight, Inc. (“HFI”), which had s...
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This appeal involves a contest between a secured creditor and three would-be buyers in the ordinary course of business over the proceeds from the sale of several tons of agricultural lime. The bankruptcy court first awarded the proceeds to the secured creditor, but then reversed course and awarded the proceeds to the buyers. For the reasons set forth below, we reverse the decision of the bankru...
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367 B.R. 654 (2007) In re Tenny Shikaro ZAHN, formerly known as Tenny Shikaro Garner, Debtor. Tenny Shikaro Zahn, Debtor-Appellant, v. Richard Fink, Trustee-Appellee. BAP No. 06-6072WM. United States Bankruptcy Appellate Panel, of the Eighth Circuit. Submitted: January 25, 2007. Filed: March 20, 2007. *655 Jason G. Roach, Tracy L. Robinson, on brief, Kansas City, MO, for Debtor-Appellant. Karie F...
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356 B.R. 728 (2007) In re Jawad HASHIM, Debtor. In re Salwa Al-Rufaiee, Debtor. In re Omar Hashim, Debtor. In re Jafar Hashim, Debtor. Arab Monetary Fund, Plaintiff, v. JHH Canadian Capital Corporation, Jafar Hashim, Jawad Hashim, Maryam Salass, Ali Salass, 1954933 Nova Scotia Limited, 1954920 Nova Scotia Limited, and Westfalen Bank International S.A. Luxembourg, Defendants. and Mark Hashimoto, s...
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MEMORANDUM OPINION ON MOTION OF U.S. TRUSTEE TO DISMISS CHAPTER 7 CASE This cause came on for hearing on January 16, 2007, upon the United States Trustee’s (the “UST”) Motion to Dismiss the above Chapter 7 case (Doc. 37). Present at the hearing were Pamela Rice representing the United States Trustee and Donald R. Jillisky representing Thomas R. Jewell and Michelle F. Jewell (collectively the ...
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MEMORANDUM OPINION This matter came on for hearing on November 30, 2006, on the Trustee’s Objection to Confirmation of Plan and Recommendation Against Confirmation of Plan, filed by Anita Jo Kinlaw Troxler, the duly-appointed Chapter 13 trustee herein (the “Trustee”). Jeffrey P. Farran appeared on behalf of the above-referenced debtor (the “Debtor”), and Jennifer R. Harris appeared on behalf of...
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ORDER OVERRULING, IN PART, OBJECTION TO CONFIRMATION OF PLAN FILED BY CHAPTER 13 TRUSTEE This cause came on for hearing on February 8, 2007, to consider confirmation of the Second Amended Chapter 13 Plan (Doc. 19) filed by Gerald and Robin Upton (“Debtors”), the Objection to confirmation (Doc. 15) filed on behalf of the Chapter 13 Trustee (“Trustee”), and the Brief in Support of Confi...
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MEMORANDUM DECISION I. JURISDICTION 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)(A). Venue is proper in this Court pursuant to 28 U.S.C. § 1409(a). II. FACTS AND PROCEDURAL HISTORY On October 5, 2006 (the “Petition Date”), Kara Homes, Inc. (“Kara”) filed with the Court a voluntary pe...
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MEMORANDUM OPINION This matter is before the Court on briefs submitted by the parties in response to the Court’s sua sponte question whether this case should be dismissed because it was filed before the Debtors’ previous chapter 7 case was closed. This is a core proceeding. 28 U.S.C. § 157(b)(2)(A). FACTS On May 9, 2006 Debtors filed a joint voluntary Chapter 7 case in the District of...
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MEMORANDUM OPINION AND ORDER ON REHEARING CONCERNING PROPOSED REAFFIRMATION AGREEMENTS WITH FORD MOTOR CREDIT COMPANY These matters came before the Court upon the submission by the parties (“Debtors” and “FMCC” [Ford Motor Credit Company] respectively) of proposed reaffirmation agreements or, in the Rizzuto case, of a proposed consent order approving a reaffirmation agreement. For the reasons...
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MEMORANDUM OPINION AND ORDER TO DISMISS CASE IF DEBTOR DOES NOT PAY FILING FEE FROM PREVIOUS CASE This matter comes before the Court on the Order to Show Cause Why Case Should Not Be Dismissed for Failure to Pay Previous Filing Fee (doc 9). For the reasons set forth below, the Court requires the Debtor to pay the filing fee from a previous ease on pain of dismissal of this case. ...
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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 parties stipulate that the Debtors, David B. Jones and Linda S. Jones, “are indebted to the Internal Revenue Service for unpaid 1040 taxes for the year ending December 31, 1993, plus statutory additions.” (Doc. 11, Joint ...
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MEMORANDUM OPINION 2 Before the Court is the Debtors’ proposal to assume and assign an unexpired lease of nonresidential real property in Brea, California to Walgreen Co. (hereinafter, “Walgreens”) in accordance with certain designation rights previously approved by the Court. The City of Brea (the “City”) and the Brea Downtown Owners Association (the “BDOA”, and collective...
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ORDER GRANTING DEBTOR’S MOTION TO DISMISS JPMORGAN CHASE BANK’S MOTION TO IMPOSE AN EQUITABLE LIEN ON HOMESTEAD THIS CAUSE came on to be heard on February 13, 2007 upon the Motion to Dismiss JPMorgan Chase Bank’s Motion to Impose an Equitable Lien on Homestead, filed by debtor, Abraham David Gosman (C.P.2005). By way of the debt- or’s motion, Mr. Gosman seeks to dismiss JPMorgan Chase Ban...
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MEMORANDUM OF DECISION AFTER TRIAL In one of the two above-captioned adversary proceedings, Carol Lam (“Carol”), the former spouse of the debtor Richard Conrad Lam (“Richard”), seeks to except a debt in the amount of $208,500 based on a state court judgment in the couple’s dissolution proceeding (the “Conversion Debt”) from Richard’s chapter 7 bankruptcy discharge pursuant to either 11 U....
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ORDER DISMISSING CHAPTER 7 CASE UNLESS DEBTORS MOVE TO CONVERT TO CHAPTER 13 WITHIN TEN DAYS OF ENTRY OF THIS ORDER THIS MATTER came before the Court for evidentiary hearing on January 25, 2007 upon the United States Trustee’s (“UST”) Amended Motion to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(1) & (b)(3) (“Motion”) filed on November 17, 2006. On December 19, 2006, Debtor...
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MEMORANDUM OF DECISION On August 2, 2006, Plaintiff Lynne M. Turville (“Lynne”), represented by D. Randy Winner, of Great Falls, Montana, filed this adversary proceeding. Defendant Cornerstone Mortgage Company (“Cornerstone”), represented by Matthew Rolling of Dickenson, North Dakota, filed an answer to the complaint on September 15, 2006. This Court issued on October 4, 2006, a pretrial schedu...
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We confront Pat V. Costa’s appeal from the bankruptcy court order overruling his “Omnibus Objection to Final Applications for Compensation” of certain estate professionals. That order rejected Costa’s contention that the professionals’ allowed fees could not lawfully be paid from certain “carve-out” funds established for that purpose under previously-entered court orders. We first must consider...
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REASONS FOR DECISION This matter comes before the court as an objection by Keith A. Rodriguez, the standing Chapter 13 trustee (the “Trustee”), to the confirmation of the Debtors’ proposed Chapter 13 plan on the grounds *258 that the plan does not commit all of the Debtors’ projected disposable income as required by 11 U.S.C § 1325(b)(1)(B). The Trustee’s objection centers on...
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MEMORANDUM OPINION AND ORDER On November 21, 2006, this Court issued its show cause Order [the Order] directing Jo-Ann Goldman [Goldman], the chapter 13 trustee in this proceeding, to show cause why she should not be removed as trustee from this case and all other cases under this title, or otherwise sanctioned, suspended, or disbarred from practicing before this Court. A hearing was held...
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MEMORANDUM OPINION DENYING COMPLAINT TO AVOID AND RECOVER FRAUDULENT TRANSFER PURSUANT TO 11 U.S.C. § 548 AND FLORIDA STATUTES § 726 et. seq. AND TO SELL REAL PROPERTY PURSUANT TO 11 U.S.C. § 363(h). THIS MATTER came before the Court for trial on January 23, 2007, on the Complaint (C.P.l) filed by the Trustee, Soneet Kapila, to Avoid and Recover Fraudulent Transfer Pursuant to 1...
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MEMORANDUM OPINION PARTIALLY DENYING DEBTORS’ MOTION FOR SANCTIONS (AUTOMATIC STAY ISSUES) The debtors argue they are entitled to sanctions against one of their creditors, Nuvell Financial Services, because Nuvell repossessed their van 47 days after the first meeting of creditors, knowing that the debtors intended to redeem the vehicle. The debtors contend that, because they were working on g...
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1. INTRODUCTION On October 31, 2006, the Debtors, Robert and Judith Amato, filed a voluntary Chapter 13 petition and Chapter 13 plan, which proposed to pay Albert Russo, Standing Chapter 13 Trustee (“Trustee”) the sum of $800 for sixty (60) months. Under the plan, payments were to be made to general unsecured creditors only, on a pro rata basis, as there were no secured claims to be paid. The...
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MEMORANDUM OPINION AND ORDER OBJECTION TO PLAN CONFIRMATION On this day came on for consideration the Objection to Confirmation of Debtors’ Plan filed by Capital One Auto Finance (“COAF”). The Court, having heard the evidence and arguments of counsel, finds that the Objection should be overruled and the plan confirmed. BACKGROUND Rosalinda and Carlos Martinez (the “Debtors”)...
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MEMORANDUM OPINION AND ORDER OBJECTION TO PLAN CONFIRMATION On this day came on for consideration the Objection to Confirmation of Debtors’ *801 Plan filed by Citifinancial Auto, Ltd (“Citi”). The Court, having heard the evidence and arguments of counsel, finds that the Objection should be overruled and the plan confirmed. BACKGROUND Michael and Melissa Medina (...
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ORDER Before the Court is plaintiff CenturyTel of Northwest Arkansas, LLC’s [Century-Tel] Motion for Summary Judgment on Amended and Restated Complaint for Declaratory Judgment filed on October 16, 2006, and debtors Darrell Cecil Laymon’s and Deborah Kay Laymon’s Response to Plaintiffs’ Motion for Summary Judgment on Amended and Restated Complaint for Declaratory Judgment filed on December 12, ...
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MEMORANDUM OPINION This matter came before the Court upon the Complaint to Determine Dischargeability of Debt under §§ 523(a)(2) and (a)(4) of the Bankruptcy Code, filed by OSB Manufacturing, Inc. (“OSB”) in the above-captioned matter. 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...
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ORDER This matter came before the Court on the Motion for Recusal, Motion to Disqualify, Disclosure of All Ex Parte Communications and Revocation of all Prior Orders 1 (“Recusal Motion”) filed by Ma-taeka, Ltd., Jon M. Knight, J. Anthony Huggins, Atlantic Portfolio Analytics & Management, Inc., a/k/a APAM, Inc., and International Portfolio Analytics, Inc. (collectively, the...
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MEMORANDUM OPINION The Court heard evidence on confirmation of debtor Gary Brock’s chapter 13 plan and the United States Trustee’s motion to convert the case to chapter 7 at a trial held October 17, 2006. The Court also heard argument concerning the debt- or’s objections to the separate claims of Rebecca Brandewyne, Verne Thornton, Beverly Thornton, and John Cox (collectively “Claiman...
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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 Plaintiffs against Defendant under 11 U.S.C. § 523(a)(2)(A) and 11 U.S.C. §§ 727(a)(2)(A), (4)(A) and (5). For the reasons set forth below, the Court determines that Defendant’s debt to Plaintiffs is dischargeable and that Defendant is entitled t...
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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 *280 brought by Plaintiff against Defendant under 11 U.S.C. §§ 548(a)(1)(A) and (B) and 11 U.S.C. § 544(b) utilizing various provisions of KRS Chapter 378. Plaintiff seeks to avoid the transfer of certain real property located at 13991 Poplar L...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER AND PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS Before the Court are two motions related to the August 29, 1996 Amended Complaint (“Complaint”) filed by Richard C. Breeden, Trustee (“Trustee”) in The Bennett Funding Group, Inc. case. The first is a motion filed on Sept. 28, 2005 by the Trustee for Partial Summary Judgment (“Tru...
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OPINION 1 Before the Court are the Motions of Fairfield Group Health Care Centers Limited Partnership (“Fairfield”), Abraham Sova (“Sova”), Julius Berger (“Berger”), and Jack Friedler (“Friedler”) (collectively the “Defendants”) for dismissal of the complaint filed against them by the trustee. For the reasons stated below, the Court will grant the Motions in part. I. BA...
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*390 MEMORANDUM OPINION This opinion is with respect to the motion (Adv. Doc. # 38) of iS3C Consultancy Services Ltd. (“Defendant”) for partial summary judgment against Forklift Liquidating Trust (“Plaintiff’). Plaintiff, the successor trust for Clark Material Handling Company and its affiliated debtors (collectively, the “Debtors”), seeks to disgorge payments made to Defendant a...
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MEMORANDUM OPINION 1 Before the Court is the Motion of Integrated Water Resources, Inc. (“IWR”) for leave to amend its Complaint (the “Original Complaint”) against the IT Litigation Trust and AlixPartners LLC, its Trustee (collectively, the “Trust”) to add a breach of contract Count. For the reasons set forth below, the Court will grant the Motion. I. BACKGROUND In April 2001, IWR was a subco...
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MEMORANDUM OPINION Benjamin Kiritu Gakinya (“Debtor”) filed a complaint alleging that Defendants violated the discharge injunction by attempting to collect a debt owed to Columbia College by Debtor that was discharged by the discharge order entered in Debtor’s bankruptcy case. Defendants disagree and assert that the debt owed by Debtor was a student loan that was excepted from dischar...
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MEMORANDUM OPINION ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY The matters before the Court are the Complaint Objection to Discharge filed on July 25, 2005; the Plaintiffs Amendment to Complaint filed on November 16, 2005; and the Plaintiff’s Second Amendment to Complaint filed on December 22, 2005. After notice, a trial was held on August 10, 2006. A...
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ORDER GRANTING PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT AGAINST DEFENDANT WILLIAM H SIMMONS AND DENYING PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT AGAINST DEFENDANT CYNTHIA L SIMMONS Plaintiff, Helena Chemical Company (“HCC”), filed its Complaint Under 11 U.S.C. § 523 Requesting Debt Be Excepted From Discharge against Defendants William H. Simmons and Cynthia L. Simmons (the “Defendants”) on ...
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*479 ORDER SUSTAINING TRUSTEE’S OBJECTION TO CLAIM OF REGIONAL MANAGEMENT CORPORATION AND DENYING MOTION FOR RELIEF FROM STAY This matter is before the Court on the motion filed by Regional Management Corporation (“Regional”) to annul the automatic stay and on the chapter 13 trustee’s objection to the claim filed by Regional. This Court has jurisdiction of these matters pursuant ...
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*533 MEMORANDUM DECISION In the United States Bankruptcy Court for the Southern District of New York, Poughkeepsie Division, less than 70 percent of Chapter 13 debtors fail to complete the reorganization process and do not obtain a discharge. 1 This decision concerns one of the few debtors who successfully completed a five-year plan process. But, the Debtor’s succe...
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MEMORANDUM REGARDING DEBTOR’S RIGHT TO HOMESTEAD EXEMPTION The issue before the Court is whether the Debtor may claim a homestead exemption in property that she voluntarily transferred post-petition. The Chapter 7 Trustee seeks to sell the property and has been authorized to employ a realtor to market the property. See Order Regarding Trustee’s Application to Employ Realtor for Trus...
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MEMORANDUM OF DECISION IN SUPPORT OF ORDER VOIDING FORECLOSURE SALE Before the Court is the Motion to Set Aside Sell [sic] (the “Motion”) filed by Marnitta L. King (the “Debtor”) on January 22, 2007. Docket No. 50. Wells Fargo Bank, N.A. (the “Respondent”) filed a Response to Motion to Set Aside Sale on February 6, 2007. Docket No. 52. In the Motion, the Debtor asks the Court to avoid a p...
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MEMORANDUM OF DECISION Introduction Darwin Jensen (“Plaintiff’) filed a Complaint to Determine Dischargeability of Debt. Docket No. 1. In it, he alleged that chapter 7 debtor Rebecca Nuttall White (“Defendant”) willfully and maliciously gelded a stallion owned by Plaintiff, and that the damages he suffered as a result, constitute a claim excepted from discharge in Defendant’s ban...
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MEMORANDUM OPINION ON MOTION TO DISMISS OR CONVERT CHAPTER 13 CASE Section 109(e) of the Bankruptcy Code provides that only a debtor who “owes, on the date of the filing of the [bankruptcy] petition, noncontingent, liquidated, unsecured debts of less than $307,675” is eligible for Chapter 13 relief. 11 U.S.C. § 109(e). 1 On October 14, 2005 (“Petition Date”), Bradley T. Smi...
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Decision on Motion and Cross Motion for Summary Judgment CAME ON for consideration the foregoing matter. The trustee filed a motion for summary judgment on January 16, 2007. The defendants filed a response and cross motion for summary judgment on February 2, 2007. This order disposes of both motions. Summary Judgment Facts The parties do not dispute the essential facts. The ...
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OPINION AND ORDER DETERMINING: (1) APPLICABILITY OF PRECLUSION PRINCIPLES; AND (2) STANDING OF VARIABLE ANNUITY LIFE INSURANCE COMPANY TO OPPOSE TRUSTEE’S REQUEST FOR TURNOVER I. Introduction and Procedural History Three Chapter 7 panel trustees (collectively, “Plaintiffs”) have filed seven separate adversary proceedings (“Adversary Proceedings”) seeking turnover of the assets contained in ...
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ORDER DETERMINING THAT DEBTORS ARE NOT ELIGIBLE TO RECEIVE A DISCHARGE THIS MATTER is before the Court on the Order to Show Cause Why Case Should Not be Closed without the Entry of a Discharge (“Order to Show Cause”) entered by the Court on January 3, 2007. The Debtors received a discharge in a prior proceeding within six years of the date of the filing of this proceeding, which was originall...
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BENCH DECISION ON CONFIRMATION 1 [[Image here]] *144 [[Image here]] *145 [[Image here]] *146 [[Image here]] In this contested matter in the jointly administered chapter 11 cases of Adelphia Communications Corporation and its subsidiaries (the “Debtors”), I have before me, for confirmation, the First Modified Fifth Amended Joint Chapte...
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MEMORANDUM OF DECISION INTRODUCTION Idaho Power Company filed an “Application for Approval of Administrative Expense and Attorneys Fees,” Doc. No. 128 (the “Application”). Layne and Carleen Astle (“Debtors”) objected to the Application. The Court took one aspect of the Application, a request for § 506(b) fees, under advisement following hearing on February 12, 2007. This Decision con...
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REVISED MEMORANDUM OPINION 1 In this case, the Court is presented with two questions for decision. First, can a *576 motion to extend the automatic stay under 11 U.S.C. § 362(c)(3)(B) 2 filed after the close of the 30-day post-petition window be considered by the Court? And second, if not, to what extent does Section 362(c)(3)(A) operate to terminate...
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OPINION GRANTING REORGANIZED DEBTORS’ OBJECTION TO PROOF OF CLAIM NO. 3785, FILED BY JUDITH WHITTAKER. I. INTRODUCTION Before the Court is Proof of Claim No. 3785 (the “Claim”), filed by Ms. Judith Whittaker (“Whittaker”), and the Objection to Proof of Claim No. 3785 (the “Objection”), filed by the Reorganized Debtor MCI, L.L.C., and certain of its direct and indirect subsidiaries (the “Debto...
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OPINION DENYING PLAINTIFFS’ MOTION FOR LEAVE TO AMEND THEIR COMPLAINT INTRODUCTION The Plaintiffs move for leave to amend their Second Amended Adversary Complaint (“SAAC”) and file a proposed Third Amended Adversary Complaint and to take additional discovery. The proposed Third Amended Adversary Complaint does not assert additional claims but contains additional factual allegations concerning t...
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MEMORANDUM AND ORDER RE: UNITED STATES TRUSTEE’S MOTION TO DISMISS THE DEBTOR’S CHAPTER 7 CASE PURSUANT TO 11 U.S.C. § 707(b)(2) This case presents the question of whether payments on secured debt are proper deductions under the “means test” of Bankruptcy Code § 707(b)(2)(A) when the debtor has filed a statement of his intent to surrender the collateral securing that debt. Before the ...
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MEMORANDUM OF DECISION REGARDING MOTIONS FOR SUMMARY JUDGMENT I. Introduction Stewart F. Grossman, Chapter 7 Trustee (the “Trustee”), filed this adversary proceeding to determine the rights of various claimants to the surplus funds from the foreclosure of a mortgage on real estate of Denise M. Fadili (the “Debtor”). The Trustee further seeks to avoid a mortgage which the Debt...
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MEMORANDUM OPINION On April 29, 2002, Dexterity Surgical Inc. (“Dexterity”), Teleflex Inc. (“Tele-flex”), and several board members and officers of Dexterity (“individual defendants”) were sued in the 166th Judicial District Court of Bexar County, Texas, by Dexterity’s minority shareholders. A Second Amended Complaint was filed on De- *694 ceraber 11, 2003. Dexterity is a...
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MEMORANDUM OF DECISION AND ORDER RE MOTION TO DISMISS AND AMENDMENT OF COMPLAINT Alvin’s Jeweler’s (“Defendant”) is before this court on its Motion to Dismiss [Doc #4] this adversary proceeding. Defendant contends that the complaint should be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6), applicable to this proceeding through Fed. R. Bankr.P. 7012(b). After review...
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*725 MEMORANDUM OF DECISION Introduction On January 8, 2007, the United States Trustee (“the UST”) filed a Motion to Dismiss this Chapter 13 1 case. Docket No. 28. On January 23, 2007, the Court conducted a hearing on the motion, after which it took the issues under advisement. After due consideration of the parties’ submissions and arguments, as well as the a...
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MEMORANDUM OPINION The court heard Banc of America Strategic Solutions, Inc.’s Complaint To Determine Dischargeability of Debt (Docket No. 1) against the Debtor, Donald W. Bryan. The court, after considering the pleadings, evidence, testimony and argument of counsel, makes the following findings of fact and conclusions of law and renders a Judgment for Debtor, declaring that $50,000 of th...
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MEMORANDUM OF DECISION ON CHAPTER 7 TRUSTEE’S OBJECTION TO DEBTOR’S HOMESTEAD EXEMPTION CLAIM On January 4, 2007, the chapter 7 trustee (the “Trustee”) objected to the homestead exemption claimed by the debtor, Mr. Bace (the “Debtor”), under N.Y. C.P.L.R. § 5206(a) (McKinney 2007) and section 522(b)(2) of the Bankruptcy Code. 11 U.S.C. § 522(b)(2). 1 In his response t...
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OPINION Chapter 7 Trustee brought an adversary action seeking to avoid Debtor’s renunciation of an interest in his father’s estate as a fraudulent transfer under 11 U.S.C. § 548(a)(1) and (2). 1 Following an eviden-tiary hearing, the bankruptcy court entered judgment in defendants’ favor, finding that the renunciation did not constitute a transfer of an interest in property and...
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MEMORANDUM AND ORDER ON OBJECTION TO PLAN OF REORGANIZATION On September 19, 2005, the debtor filed a chapter 11 petition. On April 26, 2006, he filed a Plan of Reorganization. It is undisputed that the funding of the Plan is dependent upon his future wages. See Stipulation of Facts, August 7, 2006, at ¶¶ 4, 5. New Alliance Bank objects to the confirmation because its proposal to use future w...
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MEMORANDUM OPINION Chase Manhattan Mortgage Company and Wachovia Bank, N.A., as Trustee and successor in interest to First Financial Mortgage Group, Inc., moved to dismiss the complaint filed by debtor/plaintiff, Robert R. Cooley, in the above-captioned proceeding. 1 The Complaint contains two counts. Count I asserts a claim for rescission and related damages under the Trut...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The matter before the Court is Plaintiffs Complaint to Determine Discharge-ability of Debt under 11 U.S.C. Sections 523(a)(5) and 523(a)(15) and Defendant’s Answer to Complaint and Counterclaim. A hearing in this matter was held on August 15, 2006, where Plaintiff appeared in person and by counsel and Defendant appeared in person. Upon a consideration o...
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MEMORANDUM DECISION I. PRELIMINARY STATEMENT Plaintiffs, Anthony and Connie Hopper, commenced an adversary proceeding against Tammy and David Everett, the Debtors, on July 27, 2005, to determine whether a debt due and owing to them was nondischargeable under 11 U.S.C. § 523(a)(2)(A) and (B). The Defendants filed an Answer on August 15, 2005. The Court held a trial on November 15,...
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MEMORANDUM OPINION This matter is before the Court on complaint of Debtor, Rosemary Douglas, to determine the dischargeability of various student loans. On June 28, 2006, the Court held a bench trial of the issues presented. The Court heard evidence and argument from counsel for Debtor and counsel for the two Defendants to the complaint. Following the hearing, the Court took the matte...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The issue before the Court is whether a debt arising from a judgment ordering the debtor to pay fees owed to his former spouse’s attorney may be excepted from discharge under § 523(a)(5) of the Bankruptcy Code if the former spouse is no longer liable to her attorneys for payment of these fees. For the reason...
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MEMORANDUM OPINION AND ORDER DISMISSING CASE WITH PREJUDICE TO REFILING FOR TWO YEARS AND GRANTING IN REM STAY RELIEF THIS MATTER came before the Court on March 13, 2007, for hearing on the Motion For Prospective Relief From Automatic Stay (C.P.25) filed by Household Finance Corporation III. The Court having heard from the Household Finance, the Trustee, noting that the pro se Debtor fail...
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MEMORANDUM OPINION I. INTRODUCTION In many chapter 13 bankruptcy cases, the ongoing, postpetition relationship between the debtor and the holder of a residential mortgage determines whether the debtor will be successful in achieving the financial rehabilitation sought in the case. A common, if not the most common, chapter 13 plan proposed is one requiring that a debtor ma...
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AMENDED ORDER DENYING DEBTOR’S EMERGENCY MOTION TO INVOKE EXCLUSIVITY, SETTING HEARING ON ALLIANCE AIR GROUP’S DISCLOSURE STATEMENT, AND SETTING SCHEDULE AND PROCEDURES ON COMPETING PLANS This small business chapter 11 case for a commuter airline came before me for hear *287 ing on January 29 and 31, 2007. The hearing was originally set on January 29th to consider the Debt...
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*636 MEMORANDUM OPINION This opinion addresses the issue of whether attorneys’ fees and litigation costs should be assessed, under the Equal Access to Justice Act, against the United States Trustee in discharge litigation in which the Debtor prevailed. Facts Walsh Jordan, Jr. (“Jordan” or “Debt- or”) filed the above referenced bankruptcy case. Debtor owned an in...
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MEMORANDUM ON CHAPTER 13 TRUSTEE’S OBJECTIONS TO CONFIRMATION Before the court is the Chapter 13 Trustee Objection to Confirmation (Objection to Confirmation) filed by the Chapter 13 Trustee in both of these bankruptcy cases by which she opposes confirmation on the grounds that the Debtors do not propose to pay all of their disposable income into their respective plans for the require...
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MEMORANDUM I. INTRODUCTION The matters before the Court for determination are Motions for Preliminary Injunctions (the “Preliminary Injunction Motions”) filed by the Plaintiffs, James B. Boles (“Boles”), Liquidation Trust Representative of the enivid, inc. Liquidation Trust 1 and Christopher J. Panos (“Pa-nos”), Liquidating Trustee of the Sabine, Inc. Liquidating Trust (co...
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*768 MEMORANDUM OPINION The Debtors seek to confirm a modified plan of reorganization pursuant to 11 U.S.C. § 1329 1 The new plan contemplates an early payoff of claims required to be paid under the original plan, using the proceeds (or some of them) from a refinance of Debtors’ real property financing. The Trustee objects, arguing that the debtors are required as a matter of law to con...
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*704 MEMORANDUM DECISION I. INTRODUCTION This is the rare case where a liquidated Chapter 11 estate has sufficient funds to make a distribution to equity. What that distribution should be is at the center of a dispute among the shareholders. Two of the shareholders and an entity they control have been paid as creditors. The remaining shareholder has objected to those...
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Memorandum Opinion Before the Court is the Motion for Entry of Interim and Final Orders (i) Authorizing Debtor to Obtain Secured Post-Petition Financing and (ii) Authorizing Use of Cash Collateral (the “Financing Motion”) and the Objection thereto by Synthetic Oils & Lubricants of Texas, Inc. d/b/a Soltex (“Soltex”) and M & B Asset Management, Ltd. (“M & B”) (together “Obje...
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DECISION RE: AVOIDANCE OF TRANSFER RELATED TO DIVORCE The matter before the Court is Trustee John S. Lovald’s complaint against Debtor Patricia M. Claussen and her former husband, Ronald Claussen, seeking an avoidance of the transfer of certain property interests during the Claussens’ divorce. This is a core proceeding under 28 U.S.C. § 157(b)(2)(H). This Decision and accompanying Order shall c...
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OPINION Before the Court is a Motion for Summary Judgment filed by Defendant, Shaw Group (“Shaw”) on the Plaintiffs claims under § 547 and § 550 of the Bankruptcy Code for recovery of an alleged preference. 1 The Complaint seeks to recover an alleged preference in the amount of $320,000 paid to Shaw by Erie Power Technologies, Inc. (“Debtor”) on June 12, 2003, within 90 day...
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MEMORANDUM OPINION Bayer Employees Federal Credit Union (“Bayer”) filed an adversary complaint against Joseph S. Sapp (the “Debtor”) to except a $21,803 debt 1 from the Debtor’s Chapter 7 discharge, pursuant to 11 U.S.C. § 523(a)(2)(B), on the grounds that the Debtor submitted a materially false loan application to Bayer for the purpose of purchasing a mobile home. Based, i...
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MEMORANDUM OPINION ON CONFIRMATION, MOTION TO AVOID LIEN, AND MOTION TO DISMISS This matter came on for hearing on July 20, 2006 and August 25, 2006 to consider confirmation of the Debtors’ Chapter 13 Plan and its Motion to Avoid Lien (doc 3), and on judgment creditor Suzanne Mal-lon’s Motion to Dismiss (doc 27). The Chapter 13 Trustee objected to confirmation (doc 11), as did Suzanne...
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REASONS FOR ORDER This matter arises out of the application of Greenwich Legal Associates, LLC (“Greenwich”) for allowance of compensa *551 tion in the amount of $212,765 for substantial contribution under 11 U.S.C. § 503(b) (P-1816), and the objections thereto filed by the Unsecured Creditors’ Committee (“UCC”) (P-1888), and R. Patrick Sharpe, III, the post-confirmation ...
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ORDER ON MOTION TO AMEND JUDGMENT AND ORDER PURSUANT TO BANKRUPTCY RULE 9023 This order determines the Motion to Amend Judgment and Order Pursuant to Bankruptcy Rule 9023 filed by Stacia L. Yoon, as Trustee of the Chapter 7 bankruptcy estate of Alesia Minter-Higgins in the above-designated case. The motion and an accompanying brief were filed on November 30, 2006. No reply brief was f...
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MEMORANDUM OPINION This is truly an unusual case. The question before the Court is not what should happen to this debtor: all of the participants in the case agree that the debtor needs to be sold to a third party as quickly as possible. The question is whether the process should be supervised by a federal bankruptcy court or a Tennessee state court. If the Court determines that the debto...
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DECISION AND ORDER This cause comes before the Court after a Hearing on the Motion of the United States Trustee to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(1). At the conclusion of the Hearing, the Court ordered the Debtor to submit updated information concerning his financial situation. (Doc. No. 19). The Debtor has since submitted this information, and after reviewing it, as well...
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MEMORANDUM OPINION Before the court is Motion of the United States Trustee to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(1) Based on the Presumption of Abuse Arising under 11 U.S.C. § 707(b)(2) (“motion”), in response to which was filed Debtor’s Objection to the United States Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. § 707(b) and Brief in Support Thereof, (“objection”). The m...
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OPINION DaimlerChrysler Services North America LLC (“Appellant”) appeals the bank *86 ruptcy court’s order overruling its objection to confirmation of Mark and Kimberly Taranto’s (“Debtors”) proposed second amended chapter 13 plan. The plan provides for payment of the full principal amount of the Appellant’s secured claim approximately 45 months sooner than provided for in th...
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OPINION In this chapter 7 case, the Debtor appeals the bankruptcy court’s order granting the Trustee’s motion for turnover and sustaining the Trustee’s objection to the exemption claimed by the Debtor in five pieces of jewelry. The Debtor claims the jewelry is exempt as “necessary and proper wearing apparel” pursuant to Tennessee Code Annotated § 26-2-104. For the reasons that follow, the...
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INTRODUCTION This appeal deals with a common circumstance: shortly prior to filing his bankruptcy petition, the Debtor took steps to maximize the amount of his exempt property, the result of which was that less property was available to creditors in his bankruptcy case. Specifically, the Debtor established tuition savings plan accounts for the benefit of his minor children, paid down the ...
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ORDER SUSTAINING, IN PART, AND OVERRULING, IN PART, TRUSTEE’S OBJECTIONS TO EXEMPTIONS Debtor Charles Ernest Hidy seeks to exempt funds he received for unused sick and vacation benefits after he was terminated from his employment. The Debtor claims that a portion of these funds are exempt under § 525.030 of the Missouri Statutes as earnings from employment. In addition, he claims that the ent...
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MEMORANDUM Hearing was held in Omaha, Nebraska, on March 26, 2007, on Debtor’s Motion to Extend Automatic Stay (Fil. # 15), and a Resistance filed by the U.S. Department of Agriculture/Rural Development (Fil. # 22). Richard L. Johnson appeared for Debtor, and Laurie M. Barrett appeared for the U.S. Department of Agriculture (“USDA”). This memorandum contains findings of fact and conclusions o...
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MEMORANDUM OPINION This matter comes before the Court on the Chapter 7 Trustee’s motion for summary judgment on a preference claim. 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 Bankruptcy ...
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MEMORANDUM OPINION This matter came before the Court for trial on the Complaint to Determine Validity and Priority of Liens filed by the Debtor, Brockway Pressed Metals, Inc. (“Brockway”) and LaSalle Bank National Association (“LaSalle Bank”) against Ey-non Associates, Inc. (“Eynon”). The Court considered the testimony, stipulations and other evidence submitted at trial as ...
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MEMORANDUM OPINION AND ORDER In this Chapter 13 case, Debtors proposed a Chapter 13 plan providing different treatment of unsecured creditors. Sallie Mae Guarantee Services, Inc. and Wachovia Education Finance are the holders of Debtors’ educational loans (collectively, the “Student Loan Creditors”). The amended plan proposes to make regular monthly payments directly to the Student Loan Credito...
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MEMORANDUM AND ORDER ON THE MOTION OF AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, INC., AND AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA TO DE-CERTIFY THE DUNLAP CLASS On May 8, 2006, Defendants American Bankers Insurance Company of Florida, Inc. and American Bankers Life Assurance Company of Florida (collectively, “ABI”) moved to decertify the class action (hereinafter, the ...
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MEMORANDUM OPINION ON TRUSTEE’S MOTION FOR AN ORDER REQUIRING DEBTORS TO TURNOVER FUNDS RECEIVED POST-PETITION FROM THE SARAH A. TAYLOR-DELMOEITUW TRUST This cause came on for hearing on March 28, 2006, upon the Trustee’s Motion for an Order Requiring Debtors to Turnover Funds Received Post-Petition From The Sarah A. Taylor-Delmoe/TUW Trust (Doc. # 11) and the Debtors’ Objection thereto (Doc....
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MEMORANDUM OPINION ON AMENDED MOTION OF DEERE & COMPANY FOR SUMMARY JUDGMENT Defendant Deere & Company (“Deere”) seeks summary judgment on the avoidance claims asserted against it by the Plaintiff, Thomas McK. Hazlett, Chapter 7 Trustee (“Hazlett” or “Trustee”), in his complaint (“Complaint”) (Doc. I). 1 Asserting the “strong-arm powers” granted by § 544(a) *817 ...
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MEMORANDUM OF DECISION Overruling Defendant’s Objection to Admissibility of ALJ Report and Granting Judgment in favor of the Defendant Plaintiff Susan Congdon (the “Plaintiff’ or “Congdon”) initiated the instant adversary proceeding against the Educational Credit Management Corporation 1 (the “Defendant” or “ECMC”) for a determination of whether her student loans may be discharged. The ...
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Memorandum Opinion Before the Court is the Complaint of the Debtors Jerome and Ann Lacheen (collectively, “Debtors”, “Plaintiffs”, or “the La-cheens”) to determine the dischargeability of federal income taxes pursuant to 11 U.S.C. § 523(a)(1). 1 The Internal Revenue Service (“IRS”) contends that unpaid taxes for the years 1995 and 1996 are not dis-chargeable pursuant to § 523(a)(1)(C) becau...
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DECISION SUSTAINING CHAPTER 13 TRUSTEE’S OBJECTION TO CONFIRMATION AND DENYING CONFIRMATION OF DEBTOR’S PROPOSED PLAN I. Background On July 28, 2006, the Debtor, Denise M. Kolb, filed her chapter 13 petition (Doc. 1) and proposed chapter 13 plan (Doc. 2). According to her plan, she would contribute $1,660.00 per month, for approximately 36 months, and her unsecured creditors ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon Trustee’s Objection to Debtor’s claim of exemptions in two parcels of real property. After a hearing held on January 9, 2007, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1.' On July 21, 2006 (the “Petition Date”), Lillie Stewart (“Debtor”), filed for Cha...
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ORDER This case is before the Court upon the Chapter 13 Trustee’s objection to confirmation of a postconfirmation modified plan proposed by Ernest and Rose Ireland (“Debtors”). At issue is whether the Debtors, who have suffered a substantial reduction in income since the filing of their bankruptcy petition, are prohibited by the provisions of the Bankruptcy Abuse Prevention and Consum...
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MEMORANDUM DECISION ON TRUSTEE’S OBJECTIONS TO CONFIRMATION The chapter 13 trustee filed objections to confirmation of the Chapter 13 plans in these cases which were commenced in 2006 and are governed by the provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). The trustee contends that the Stimacs and Mr. Fruik (collectively the “Debtors”), whose income is...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Motion for Relief From Stay filed by Capi-talSource. After hearings held on December 18, 2006 and January 12, 2007, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Debtor was a motor fuel distributor headquartered in DeLand, Florida. On April 26, 2006, Debtor, as bor...
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ORDER DENYING UNITED STATES TRUSTEE’S MOTION TO DISMISS PETITION The United States Trustee (UST) moves to dismiss the Debtors’ Chapter 7 petition on grounds that they have failed to rebut the presumption of abuse by demonstrating “special circumstances.” For the rea *215 sons set forth below, the Court hereby denies the UST’s motion. Background The parties h...
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OPINION The issue before the Court is whether numerous sales of agricultural chemicals made by the Debtor, Hennings Feed and Crop Care, Inc. (“Hennings”) to the Defendant, Ottawa Plant Food, Inc. (“Ottawa”) at deeply-discounted prices were fraudulent conveyances. For the reasons set forth below, the Court finds that such sales occurring after May, 1998, were fraudulent conveyances and that...
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MEMORANDUM OF DECISION Before the Court is the Debtor’s motion to avoid the judicial lien of the Framing-ham Municipal Federal Credit Union on a property that is the subject of the Debtor’s claim of a Massachusetts homestead exemption. The Credit Union opposes the motion, contending that the Debtor’s homestead estate was not validly acquired, hence cannot be the subject of a claim of ...
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MEMORANDUM DECISION GRANTING MOTIONS TO CONVERT CASE TO CHAPTER 11 AND APPOINT TRUSTEE The current motions before the Court represent the latest round in a sixteen-year old dispute between the Euro-American Lodging Corporation (“EALC” or the “Debtor”) and its mortgagee, CDR Créances S.A. (“CDR”). After CDR filed *423 an involuntary chapter 7 petition and the Court ordered rel...
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MEMORANDUM DECISION REGARDING TRUSTEE’S MOTION TO DISMISS BASED ON 11 U.S.C. § 109(h) INELIGIBILITY Under 11 U.S.C. § 109(h), a provision added to the Bankruptcy Code (11 U.S.C.) by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”), Pub.L. No. 109-8, 119 Stat. 23 (2005), an individual debtor, with exceptions of no relevance here, must obtain a credit coun...
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OPINION The bankruptcy court ruled that debtors Ernest and Maria Leal (“Debtors”) have no personal liability for unpaid sales taxes from a retail shoe business, even assuming that they were partners in the business, because there was no evidence that they were responsible for or willfully failed to pay the sales taxes. We hold that nothing in Cal. Rev. & Tax Code section 68...
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OPINION The debtor, Bruce Edward Howard Simpson (“the debtor”), appeals the bankruptcy court’s order sustaining the trustee’s objection to the debtor’s claimed exemptions in an annuity contract under Cal. Code Civ. Proc. (“C.C.P.”) §§ 704.100 and 704.115. For the reasons set forth below, we AFFIRM. I. FACTS A. The Keyport Annuity The facts are undisputed. On or abou...
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MEMORANDUM-OPINION This matter came before the Court on the Motion to Disallow, In Part, Claim of *726 Anthony G. Steier of Trustee, J. Baxter Schilling (“Trustee”). The Court considered the written submissions of the Trustee, creditor Anthony Steier (“Steier”), creditor National City Bank (“NCB”) and the comments of counsel at the hearing held on the matter. For the foll...
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DECISION In this proceeding, Larry S. Eide, trustee, seeks to avoid the debtor’s transfer to defendants of a deed of trust to real property located in Hardin County, Iowa. Trial was held December 6, 2006 in Fort Dodge. Patrick D. Smith appeared as attorney for Eide. Brad C. Epperly appeared as attorney for defendants National City Capital Corporation (National City) and Great Lakes Ca...
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MEMORANDUM OPINION Before the Court is the Application of Montague S. Claybrook, Chapter 7 Trustee, for Compensation for Services Rendered as Chapter 7 Trustee for the Period October 11, 2005 Through December 21, 2006 (the “Fee Application”) requesting payment of $6,502 in fees and $96.89 in expenses. Mr. Pivinski (the “Debtor”) opposes the Fee Application, arguing that the chapter 7 ...
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MEMORANDUM OPINION 1 Before the Court is the Motion of Charles M. Golden, chapter 11 trustee (the “Trustee”) seeking reconsideration of the Court’s Order granting partial summary judgment in favor of The Guardian Life Insurance Company of America (“Guardian”) with respect to Count I of the Amended Complaint in the above-captioned adversary proceeding. Guardian opposes the Motion. ...
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MEMORANDUM OPINION ON AMENDED COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBTS Section 523(a) of the Bankruptcy Code provides that a discharge in bankruptcy does not discharge an individual debtor from certain specified debts, including debts for support, 11 U.S.C. § 523(a)(5), and debts for willful and malicious injury by the debtor, 11 U.S.C. § 523(a)(6). On June 9, 2005, Erik Ker (...
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MEMORANDUM DECISION ON DEBTORS’ OBJECTION TO TRUSTEE’S MOTION TO DISMISS The debtors filed a petition under chapter 13 on February 10, 2003, and their plan was confirmed on October 30, 2003. On January 3, 2007, the trustee filed a motion to dismiss the case, claiming the debtors failed to provide 2005 income tax returns and one-half of the refunds, if any, and the plan was not feasible to...
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The debtor, Karen Kibbe (the “Debtor”), appeals from the bankruptcy court’s order denying confirmation of her Chapter 13 plan. The issue on appeal is whether the bankruptcy court properly determined how to calculate a below-median income debt- or’s “projected disposable income,” as that term is employed in 1325(b)(1)(B) of the Bankruptcy Code. 1 The resolution of this question turns ...
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The debtor appeals the bankruptcy court’s 1 order which granted Chase Home Finance’s motion for relief from the automatic stay and the trustee’s motion to approve a settlement with Chase. We dismiss the appeal in part for lack of jurisdiction and otherwise affirm. BACKGROUND The debtor and her common-law husband, Ernesto Sanchez, purchased a home in Missouri as husband and ...
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ORDER Claudia Q. Hainlen (“Debtor”) claims her interest in a Teachers Retirement System of Georgia annuity, that she receives as a beneficiary, is excluded from the property of her bankruptcy estate pursuant to 11 U.S.C. § 541(c)(2). In the alternative, Debtor claims even if the annuity is included in her bankruptcy estate, it is exempt pursuant to Georgia’s statutory exemptions. Conversely, ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF ORDER GRANTING MOTION FOR AN EXTENSION OF TIME TO COMPLETE PRE-BANKRUPTCY CREDIT COUNSELING This matter presents the following issues: 1. First, whether Bankruptcy Code Section 109(h)(3)’s provisions describing (a) the requirement that an individual receive prepetition credit counseling in order to be eligible to file a bankruptcy case, ...
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MEMORANDUM OPINION This matter is before the Court on the Defendant’s Motion for Summary Judgment in the action of Chapter 11 Trustee, S. Gregory Hays (“Trustee”), against Morgan Stanley DW, Inc. (“MSDW”) to avoid and recover, as fraudulent transfers, certain payments made by Stewart Finance *911 Company (“Debtor” or “SFC”) to MSDW. The payments were to be applied to marg...
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ORDER This matter comes before the Court on the Debtor’s motion (the “Motion”) for court approval of her reaffirmation agreement (the “Reaffirmation Agreement”) with National Auto Sales. Due and proper notice of the hearing on the Motion was served upon Debtor, Debtor’s counsel, and the affected creditor. The Court has jurisdiction over the parties and the subject matter of this proceeding pu...
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AMENDED OPINION SUSTAINING TRUSTEE’S OBJECTION TO DEBTOR’S AMENDED EXEMPTIONS, AND SANCTIONING DEBTOR’S FORMER ATTORNEY AND HIS LAW FIRM FOR VIOLATING FED. R. BANKR. P. 9011(b) I. Introduction In this Chapter 7 bankruptcy case, the Debtor failed to disclose a personal injury claim that later proved to be worth $100,000.00. Debtor’s attorney filed her petition and schedules knowing ab...
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This adversary proceeding came on before the Court on January 8, 2007, for hearing on the Plaintiffs’ motion for summary judgment. The Plaintiffs 1 appeared by their attorneys, Floyd E. Siefferman and Margaret E. Noubissie. The Defendant (“the Debtor”) appeared pro se. Based upon the record made for the hearing, including pre- and post-hearing written submissions and the a...
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MEMORANDUM OF DECISION Plaintiff, Donald G. Abbey (“Abbey”), through his attorneys, Edward A. Murphy and Michael G. Black, both of Missoula, Montana, initiated this adversary proceeding against Defendant Brendon Keith Retz (“Retz”) on March 8, 2005. On September 19, 2005, after several contested motions and amended pleadings, Abbey filed an amended complaint, doc. no. 30. Retz, through hi...
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DECISION & ORDER The debtors have requested a thirty day extension of time to complete the credit counseling requirement of 11 U.S.C. § 109(h)(1). This motion presents two issues: first, whether the imminence of a foreclosure sale constitutes the kind of exigent circumstance that will justify this extension; and second, whether this court may still grant an extension, even though cred...
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MEMORANDUM of DECISION In this Chapter 7 bankruptcy, after due notice, a hearing was held December 12, 2006, in Billings on the United States Trustee’s Motion to Dismiss filed July 24, 2006. The United States Trustee (“UST”) was represented at the hearing by attorney Daniel P. McKay, of Great Falls, Montana, and Debtors were represented by their attorney of record, James A. Patten, of...
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*634 MEMORANDUM OPINION The Court considers the motion of Kent Ries (“Ries”), the chapter 7 trustee, requesting that the Court sanction the debt- or, Robert Paige (“Paige”), for his unauthorized taking and selling of four classic cars. 1 The Court has jurisdiction over this matter under 28 U.S.C. § 1334(b); this is a core proceeding pursuant to 28 U.S.C. § 157(b)...
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MEMORANDUM OPINION This matter comes before the Court on the motion of King Marine, Inc. (“King Marine”) pursuant to Federal Rules of Civil Procedure 55(c) and 60(b) to vacate a default judgment entered against King Marine and in favor of Alex D. Moglia (the “Trustee”), as Chapter 7 trustee for the bankruptcy estate of Outboard Marine Corporation and its related debtor entities (the “...
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MEMORANDUM OF DECISION AND ORDER ON MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT By its complaint in this adversary proceeding, the Plaintiff, TD BankNorth, N.A. (“BankNorth”), seeks a determination that a debt owed by the debtors, *348 Nancy R. Ewing and Daniel J. Ewing (“the Debtors”), to BankNorth under certain postpetition guarantees is excepted from discharge. The debt is excepted from dis...
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MEMORANDUM OPINION For the reasons set forth below, Plaintiffs motion for summary judgment is denied. This Court has jurisdiction of this proceeding pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding. Background On October 11, 2005, Karim A. Rajabali (“Debtor”) filed for chapter 7 bankruptcy relief. Debtor owned 100% of and operated a company known as ASAP Ente...
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*65 MEMORANDUM OF DECISION On September 13, 2005, Debtors filed this chapter 13 case. On March 22, 2006, upon the consent of the chapter 13 trustee, the Court confirmed Debtors’ amended chapter 13 plan. On October 16, 2006, the chapter 13 trustee, Robert G. Drummond (“Drummond”), of Great Falls, Montana, filed a postconfirmation motion, doc. no. 44, to dismiss this case. Debtors, through thei...
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MEMORANDUM OF DECISION Several matters are pending in the above-captioned adversary proceeding and Chapter 11 case, which were consolidated for trial held, after due notice, at Missoula, Montana, beginning on November 2, 2006, and concluding November 6, 2006. After trial and review of the parties’ briefs, the transcript and applicable law, these matters are ready for a decision. A separat...
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*172 MEMORANDUM DECISION DENYING DEBTOR’S MOTION TO CONVERT The matter before the Court is the Debtor’s Motion to Convert to chapter 11 of the Bankruptcy Code. The Debtor is one of five entities which were substantively consolidated in a separate chapter 11 case. Although the chapter 11 case is still pending, the Debtor commenced this chapter 7 case alone, and the Debtor now seeks to convert ...
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MEMORANDUM OPINION AND ORDER Deborah K. Russ (the “Debtor”) initiated this adversary proceeding seeking an “undue hardship” discharge, under section 523(a)(8) of the Bankruptcy Code (the “Code”), of a student loan debt she owes to Texas Guaranteed Student Loan Corporation (the “Defendant”). 1 The Court has jurisdiction over the subject matter and the parties. 28 U.S.C. § 13...
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ORDER This matter comes before the Court on Motion for Turnover (the “Motion”), filed by Michelle L. Vieira, Chapter 7 Trustee (the “Trustee”), seeking the turnover of portions of Debtor’s tax refund for tax year 2006 pursuant to 11 U.S.C. § 542. 1 Debtor filed an objection to the Trustee’s Motion. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 157(b)(2)(E). Pursuant to ...
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MEMORANDUM OPINION Before the court is the motion of the reorganized debtor for summary judgment on its objection to Claim No. 3018 filed by Fougére Holcombe in the amount of $60,475,000 for alleged employment discrimination in violation of the Americans with Disabilities Act (“ADA”). The motion raises two distinct issues: first, whether as a matter of law the claim was discharged in the debtor...
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MEMORANDUM OPINION AND ORDER GRANTING LIMITED RELIEF FROM STAY (GRANTING IN PART AND DENYING IN PART LANDNPULASKI’S MOTION FOR RELIEF FROM STAY) On March 13, 2007, the Court heard the Motion for Relief From Stay Filed by LandNPulaski, LLC (“Motion for Relief’). Phyllis McKenzie appeared on behalf of LandNPulaski, LLC (“LandNPulaski”); Jack Dickerson appeared on behalf of th...
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MEMORANDUM OPINION GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This cause came on for consideration of the Defendant Universal 1 Credit Union, Inc.’s (“Universal”) Motion for Summary Judgment (Doc. 9), Plaintiff William Logan’s (“Trustee”) Motion for Summary Judgment (Doc. 10), Universal’s response (Doc. 11), and the Trustee’s r...
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ORDER This matter comes before the Court on cross-motions of Plaintiff Charles Cathcart (“Plaintiff’) for Motion to Dismiss or Alternatively, For a Stay (“Plaintiffs Motion”), on the motion of Defendant General Holding, Inc. (“General Holding”), for dismissal with prejudice (“General Holding’s Motion”), and on motion of Kevin Campbell, chapter 7 trustee (“Trustee”), for summary judgment as to Pla...
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MEMORANDUM OPINION I. INTRODUCTION In this adversary proceeding, the Plaintiffs assert claims for violations of federal and state consumer protection statutes. The claims arise from a mortgage refinancing transaction in connection with the Plaintiffs’ primary residence. The three (3) defendants are a mortgage broker, the original mortgage lender and the lender’s assignee. ...
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MEMORANDUM DECISION I. INTRODUCTION On August 29, 2006, Kerry Simms filed a “Motion to Dismiss Case and Order to Show Cause” (“Motion”). The Motion was filed by Kerry Simms (“Movant”), a creditor in the above-captioned case. 1 Frederick Simms, another creditor, also joined in the Motion to Dismiss. Movants requested dismissal of the Debtors’ case pursuant to 11 U.S.C. § 707(b). The Debtors ...
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MEMORANDUM DECISION DENYING MOTION TO REOPEN ADVERSARY PROCEEDING NO. 05-896. I. INTRODUCTION This matter comes before the Court on a “Motion to Reopen Adversary Proceeding” (“Motion”) filed by Cathy Blake, the Plaintiff herein, on January 28, 2007. Joseph G. Trutwein, the Debtor and Defendant herein, filed an “Objection to Plaintiffs Motion to Reopen Adversary Proceeding” (“Objection”) on March ...
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DECISION AND ORDER This cause comes before the Court after a Hearing on the Plaintiffs Motion for Reconsideration of this Court’s Order dated February 7, 2007, Granting Default Judgment Against the Defendant and Denying Plaintiffs Request for Fees, Costs and Damages. At the conclusion of the Hearing, the Court deferred ruling on the matter so as to afford the opportunity to further co...
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MEMORANDUM OPINION AND DECISION This matter comes before the Court after a Trial on the Plaintiff/Debtor’s Complaint to Determine Dischargeability of Debt. At the conclusion of the Trial, the Court took the matter under advisement. At issue at the Trial was whether the Debtor was entitled to receive a discharge, of those obligations she incurred to finance her higher education, pursuant to th...
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DECISION AND ORDER Plaintiff commenced this Adversary Proceeding against the debtor-defendant Juan Sanchez seeking a determination that plaintiffs contractual indemnity claim against the debtor is non-dischargeable under Section 523(a)(7) of the Bankruptcy Code, 11 U.S.C. § 523(a)(7), on the theory that plaintiff, a private bail bondsman which paid a forfeited bail bond to the State o...
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*189 MEMORANDUM OF DECISION This matter was before the court on the complaint of Dennis J. Buckley, litigation trustee for Globe Holdings, Inc.; and Globe Manufacturing Corp., seeking to avoid allegedly preferential payments to defendant Carrier Corporation. The court, having reviewed the facts in the context of applicable law, finds that the trustee established that the paym...
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MEMORANDUM OF DECISION This matter came before the court on confirmation of debtor Randall Justin Roberts’ proposed Chapter 13 plan and related matters, including Contemporary Mitsubishi’s objection to confirmation on “good faith” grounds; and Roberts’ objections to classification of Mitsubishi’s $5,136.16 claim. After reviewing the evidence in the context of applicable law, the court...
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MEMORANDUM OPINION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT The plaintiff, WCI Communities, Inc., and the defendant, Roderic M. Wright, have filed cross motions for summary judgment contending no material factual disputes exist. The sole legal issue is whether the res judicata effect of the order confirming the debtor’s plan of l...
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*56 MEMORANDUM OF DECISION ON OBJECTION TO PLAN CONFIRMATION I. INTRODUCTION The question is whether debtors with above-median income can calculate their chapter 13 plan payments by deducting from their income the IRS local standard housing expense even though the debtors’ actual housing expense is substantially less. I reluctantly conclude that the answer is no; such de...
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MEMORANDUM OF DECISION This matter came before the court on debtor/plaintiff Marchelle Paulk’s complaint asking the court to determine that the automatic stay of 11 U.S.C. § 362(a) was either still in effect; and/or, to reimpose the stay against creditor/defendant Green Tree Servicing, LLC’s foreclosure attempt. The court has reviewed the facts in the context of applicable law, and holds that j...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Under consideration by the Court is a motion (“Motion”) filed by John N. Sullivan (“Debtor”) on March 10, 2005, pursuant to § 362(h) of the United States Bankruptcy Code, 11 U.S.C. §§ 101-1330 (the “Code”). 1 Claiming violations of the auto *57 matic stay provisions of 11 U.S.C. § 362, the Debtor r...
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MEMORANDUM I. INTRODUCTION This adversary proceeding centers on the efforts of Plaintiff Frederick Cohen, Trustee (“the Trustee”) to set aside and recover certain alleged fraudulent transfers. See 11 U.S.C. §§ 544, 548 and 550. *510 There are four (4) defendants in the adversary proceeding: (1) Ellen King (“Ellen”); (2) Kimberly King (“Kimberly”); ...
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MEMORANDUM OPINION SUPPORTING AND SUPPLEMENTING MARCH 8, 2007 ORDER, WHICH (1) GRANTED, BUT REDUCED, COUNSEL’S APPLICATION FOR ATTORNEYS’ FEES AND (2) SANCTIONED COUNSEL BY FURTHER REDUCING THE FEES AWARDED I. BACKGROUND On March 8, 2007, I issued and entered my written Order, dated March 8, 2007, granting, but reducing, a request for attorneys’ fees for Debtors’ counsel, Eri...
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MEMORANDUM OPINION ON THE TRUSTEE’S AMENDED OBJECTION TO DEBTOR’S EXEMPTIONS I. INTRODUCTION This Memorandum Opinion addresses the issue of whether under Texas law, an inherited individual retirement account (IRA) from a non-spouse may be claimed as an exemption from the bankruptcy estate. Russell Jarboe (the Debtor) claimed that his inherited IRA was exempt from the bankruptcy estate pursuan...
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DECISION ON OBJECTION TO CLAIM This matter is before the court in connection with the trustee’s objection to a proof of claim filed by Janie Fink. The trustee argues that Ms. Fink’s claim was filed after the deadline for doing so had passed and so should be paid only after all timely claims have been paid in full. See, 11 U.S.C. §§ 502(b)(9), 726(a)(3). Ms. Fink argues that...
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Memorandum Opinion Plaintiffs Jennifer and Mark Glauser (“Jennifer” and “Mark” and collectively “Plaintiffs”) filed this adversary proceeding against Defendants Deutsche Bank National Trust Company (“Deutsche Bank”) and Ameriquest Mortgage Company (“Ameriquest”), claiming that a loan transaction they entered into with Ameri-quest in 2004, subsequently assigned to Deutsche Bank, violat...
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MEMORANDUM OPINION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT This cause came on for consideration of the Motion for Summary Judgment (Doc. 16), filed by Defendant American Suzuki Financial Services, Inc. (“Defendant”), and the Plaintiffs Memorandum Contra Motion for Summary Judgment and Cross-Motion for Summary Judgment (Doc. 17), filed in th...
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MEMORANDUM This matter came before the Court for trial on April 3, 2007. Both the Plaintiff, Karen Wade (“Wade”) and the Defendant, Norman Girardin (“Girardin”) appeared with counsel. The Court considered the testimony and exhibits presented at trial on the Complaint Objecting to Discharge filed by Wade against Girardin. The Court enters the following Findings of Fact and Conclusions of L...
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OPINION Donald W. Ward and Jean M. Ward (“Debtors”) filed a voluntary Petition under Chapter 7 of the Bankruptcy Code on April 14, 2006. Richard W. Roeder, Esq., was appointed and serves as Chapter 7 Trustee (the “Trustee”). The Trustee also serves as Attorney Pro Se. The assets available for administration by the Trustee in the case consist of an income tax refund of $665, a par...
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MEMORANDUM Dennis Watkins (“Debtor”) filed a Voluntary Petition Under Chapter 7 of the Bankruptcy Code on July 6, 2006. The First Meeting of Creditors pursuant to 11 U.S.C. § 341 1 was first scheduled for August 2, 2006 2 and the last day to file objections to discharge pursuant to § 727 or to dischargeability pursuant to § 523 was fixed as October 2, 2006. ...
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MEMORANDUM DECISION I. INTRODUCTION Plaintiffs obtained a default judgment based on a fraud claim against the Debtor in prepetition litigation. Plaintiffs filed an adversary complaint in Debtor’s bankruptcy case, alleging that the debt owed to them is nondischargeable under 11 U.S.C. § 523(a)(2)(A) as a debt for money obtained by fraud, and § 523(a)(19) as a debt for violatio...
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*469 MEMORANDUM Brenda L. Cutshall (“Debtor”) filed a voluntary Petition Under Chapter 7 of the Bankruptcy Code on March 21, 2005. Richard W. Roeder, Esq., was appointed and serves as Chapter 7 Trustee (the “Trustee”). The Trustee also serves as Attorney Pro Se. The sole asset available for administration by the Trustee was a parcel of real estate owned by Debtor and a Co-owner. The Trust...
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AMENDED MEMORANDUM OF DECISION Before the Court is a motion for summary judgment (the “Summary Judgment Motion”), filed by Timothy and Nancy Bartlett, the defendants in this adversary proceeding and the debtors in the main bankruptcy case. The plaintiff opposes the Summary Judgment Motion, both asserting the existence of genuine issues of material fact and rebutting the Debtors’ legal...
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MEMORANDUM OF OPINION The Court has consolidated for decision two related motions. In the first, the Association of Flight Attendants — CWA, AFL-CIO (“AFA”) has moved for relief from an order, dated July 5, 2006 (the “July 5 Order”), granting the application of Debtor Northwest Airlines Corporation (“Northwest” or the “Debtor”) to reject its collective bargaining agreement with AFA. In th...
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MEMORANDUM OPINION Carl and Teresa McNeely (the “Debtors”) seek confirmation of their proposed Chapter 13 plan, which provides that they will retain a 1997 Rinker Fiesta Vee 3 houseboat (the “Houseboat”). Key Bank USA, NA (“Key Bank”) holds a properly perfected security interest in the Houseboat, and it requests relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(2) on the g...
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MEMORANDUM OPINION AND ORDER DENYING TRUSTEE’S OBJECTION TO CONFIRMATION 1 The Chapter 13 Trustee objects to Debt- or’s plan as not proposed in good faith under 11 U.S.C. § 1325(a)(3). 2 The Trustee alleges the Debtor’s proposed three-year plan is too short when her current monthly income 3 indicated she was above median income. The Court denies the Trustee’s objection because the Debtor’...
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MEMORANDUM OPINION AND ORDER DENYING CONFIRMATION Confirmation of Debtor’s Chapter 13 plan is pending before the Court. 1 The Chapter 13 Trustee objects because Debt- or’s proposed plan runs less than five years and pays nothing to unsecured creditors. 2 The Court, having reviewed the relevant pleadings and having considered counsel’s argument, denies confirmation because the plan does not ...
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MEMORANDUM OPINION AND ORDER DENYING CONFIRMATION OF CHAPTER 13 PLAN AND DENYING TRUSTEE’S MOTION TO DISMISS Confirmation of Debtors’ Chapter 13 plan is pending before the Court. 1 The Chapter 13 Trustee objects because Debtors’ proposed plan as amended will pay nothing to unsecured creditors even though the disposable income requirement of 11 U.S.C. § 1325(b) shows Debtors cou...
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MEMORANDUM OF DECISION Before the court in the Second Application of Whitford, Taylor & Preston L.L.P. (“WT & P” and “Applicant”), for Allowance of Interim Compensation for Services Rendered and Reimbursement for Expenses Incurred for the Period January 1, 2006 Through April 30, 2006 (the “Application”). The Application seeks interim compensation of $251,092.00 for t...
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MEMORANDUM OF DECISION Before the Court is the Complaint to Determine Dischargeability of Debt, filed by Plaintiff Ultra Litho, PYT, Limited (“Ultra Litho”) against Jeffrey F. Moore (the “Debtor” or “Mr. Moore”). The Court conducted a trial on the complaint on December 13, 2006. The parties filed post-trial briefs, and closing arguments were held on January 19, 2007. For the reasons state...
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ORDER OF CONTEMPT The Debtor Tommy F. Robinson (“Robinson”) is a resident of Brinkley, Monroe County, Arkansas. Roy C. Lewellan (“Lewellan”) is an attorney duly licensed to practice in this Court and is a resident of Marianna, Lee County, Arkansas. On December 21, 2006, Wildlife Farms II, LLC a/k/a Mallard Pointe Lodge and Reserve, LLC (“Wildlife Farms”), William Thompson (“Thompson”)...
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AMENDED OPINION REGARDING “FRAUD ON THE COURT” ISSUES This case is before the Court on a remand from the United States District Court, and on motions. The Court must determine whether the former Chapter 7 trustee in this case, Charles J. Taunt, and his attorneys committed fraud on the court, by failing to properly disclose a fee agreement that Taunt made with a secured creditor, Comerica ...
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ORDER FOR JUDGMENT DETERMINING DISCHARGEABILITY This matter came before the Court on February 12, 2007, for trial on the debtor’s 11 U.S.C. § 523(a)(8) complaint against multiple student loan provider or assignee defendants. The debtor, Mark Allen Jes-person, appeared pro se. James C. McGil-lis appeared on behalf of Arrow Financial Services LLC (Arrow). Henry T. Wang and A.L. B...
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MEMORANDUM OF DECISION The matters before the court are (1) the above-referenced plaintiffs (“Republic”) Complaint To Deny Discharge Pursuant to 11 U.S.C. § 727(a) (A.P. Doc. I.D. No. 1, the “Complaint”) 1 which seeks to deny the above-referenced debtor (the “Debtor”) his discharge pursuant to 11 U.S.C. § 727(a); (2) the Debtor’s Motion To Dismiss (A.P. Doc. I.D. No. 91, th...
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AMENDED ORDER Americredit Financial Services, Inc. (“AFS”) has filed a motion in this case to confirm the termination of Automatic Stay pursuant to 11 U.S.C. § 362(j). Melanie Jayne Grossi (the “Debtor”) filed her chapter 7 bankruptcy case on November 22, 2006 (the “Petition Date”). The Court has jurisdiction over the parties and the subject matter of this proceeding pursuant to 28 U.S.C. § 1...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Nieolette Basel-Johnson (the “Debtor”) for summary judgment pursuant to Federal Rule of Bankruptcy Procedure 7056, which incorporates by reference Federal Rule of Civil Procedure 56, on the complaint filed by Peter and Janet Vozella, individually and on behalf of Go Wild Fun Safaris, Inc., an Illinois corporation, ...
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Decision and Order Regarding Reaffirmation Agreement CAME ON for consideration the foregoing matter. The debtor filed for bankruptcy on October 14, 2005, prior to the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. On November 18, 2005, the debt- or executed a reaffirmation agreement on a motor vehicle financed with General Motors Acceptance Corporat...
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MEMORANDUM OPINION Joseph Jasgur is a very talented photographer who mingled with and photographed Hollywood celebrities starting in the 1940’s. One celebrity he photographed was Norma Jean Mortenson, 1 more popularly known as Marilyn Monroe. Jasgur apparently took her first professional photographs, including the only photo that suggests she had six toes on one foot. His c...
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OPINION Before the Court is an “order to show cause with ex parte relief authorizing the bankruptcy trustee’s entry into and inspection of debtor/defendant’s residence to search, seize and appraise estate property.” Also before the Court is a request by Miriam R. Bursztyn, the Chapter 7 Debtor (hereinafter “Debtor”), to suppress the evidence obtained by the Trustee in viola...
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MEMORANDUM OPINION Nature of Case The chapter 7 trustee objects to debtors’ claim of exemption in causes of action related to their homestead. Debtors Curtis and Michelle Murphy claim as exempt not only the home they live in, a mobile home set on land they own, but also several causes of action that they have asserted in response to National City Mortgage Company’s pre-petition foreclosure act...
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MEMORANDUM OPINION 1 The matter before the Court is the Debtors’ Motion to Expand Their Preliminary Injunction to Include Actions Against the State of Montana (the “Expansion Motion”), 2 which seeks to add within the scope of the preliminary injunction 120 3 actions currently pending against the State of Montana in Montana state courts (the *297 ...
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MEMORANDUM DECISION REGARDING CREDITOR’S POST-DISCHARGE ATTEMPTS TO COLLECT JUDGMENT A debtor’s discharge in bankruptcy would not do her much good if her pre-petition creditors could still garnish her wages to pay their claims. The creditor in this case has a creative theory for doing just that: he argues that her discharge did not affect his claim against her husband, that her husband ha...
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369 B.R. 506 (2007) In re Lehua HOOPAI, Debtor. Lehua Hoopai, Appellant, v. Countrywide Home Loans, Inc.; James Pelosi, Co-Trustee of The Maluhia Trust; Marcelle Loren, Co-Trustee of the Maluhia Trust, Appellees. BAP No. HI-06-1328-KMoB, Bankruptcy No. 04-02511. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted January 19, 2007. Filed March 28, 2007. *507 Lissa D...
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ORDER THIS MATTER comes before the Court on the Motion for Approval of Proposed Settlement of Controversies Between the Estate and Michael A. Kast (the “Motion”), filed by the David E. Lewis, the Chapter 7 trustee (the “Trustee”), and the Objection, filed jointly by Global Water Technologies, Inc., GK Holdings, Inc. and George Kast (collectively referred to as the “Objectors”). This matter invo...
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OPINION The bankruptcy court found that Brett Michael Carnduff (“Brett”) and Janeth Rey Carnduff (“Janeth”) (“Debtors”) will never be able to pay their student loan debt of over $350,000 unless one or both of them “wins the lottery.” Nevertheless, without deciding whether Debtors have made good faith efforts to repay their loans, the bankruptcy court held that it could not discharge any o...
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OPINION On summary judgment, the bankruptcy court conflated the so-called Rooker-Feld-man doctrine with rules of claim and issue preclusion and thought it lacked authority to make an independent determination of whether a debt based on a state court judgment was excepted from discharge under 11 U.S.C. § 523(a)(6). We hold Rook-er-Feldman is irrelevant to preclusi...
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OPINION The bankruptcy court determined as a matter of law that in order for an assignee creditor to prevail in an exception to discharge adversary proceeding brought pursuant to § 523(a)(2)(B), 1 the assignee creditor must have reasonably relied on the materially false financial statement provided by the debtor. We REVERSE. I. FACTS On July 13, 1999, Blue Diamond Str...
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OPINION One of the principal areas of concern among members of the bench, the bar and the public under the recently enacted Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) is the requirement that individuals contemplating bankruptcy obtain credit counseling before they file their bankruptcy petitions. More specific is the question of whether failure to do so lea...
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OPINION Debtors, defendants in a pre-petition lawsuit pertaining to their former residence, tendered defense of that action to their insurer. After the petition date, the insurer informed the debtors that it would no longer provide a defense to the lawsuit, stating that the claims in the state court lawsuit were excluded from the coverage of their homeowners’ policy. The debtors filed a c...
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MEMORANDUM OPINION Before the court for consideration is the Debtors’ Second Amended Chapter 13 Plan, as further amended on the record at a hearing on September 12, 2006, and the objection to confirmation thereof filed by creditor agent eCast Settlement Corporation. After the hearing, the court took the matter under advisement and provided the parties with an opportunity to provide supplemental...
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MEMORANDUM I. INTRODUCTION The matters before the Court are Cross-Motions for Summary Judgment filed by the Plaintiff, Robert J. Beland (“Beland”), the administrator of the estate of Jason J. Beland, pursuant to his appointment as administrator by the Massachusetts Probate Court, Bristol County, on June 10, 1999, and by the Defendant, Brian P. Cunningham (“Cunningham” or the “Debtor”...
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Order on Trustee’s Motion to Deny Confirmation At issue is the post-BAPCPA interplay between § 1325(b)(4) and § 1329(a)(2) of the Bankruptcy Code, and the question of whether debtors who have a 5-year applicable commitment period can modify their plan to 3 years without paying unsecured creditors in full. This court holds they can, so long as the requirements of 11 U.S.C. § 1329(b) are sa...
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OPINION Procedural and Factual History On September 7, 2004, William and Amanda Price (“Debtors”) purchased a 2004 Jeep for personal use. To finance the vehicle, they obtained a loan of $31,481.77 from TranSouth Financial Corp, which later assigned the loan to CitiFinan-cial Auto Corporation (“CitiFinancial”). Debtors made fourteen (14) monthly payments to CitiFinancial, the last having b...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The matter before the Court is Plaintiffs Amended Complaint to Determine Dischargeability Pursuant to § 523(a)(15) and for Declaratory Judgment, the Answer of David C. Kuschel to Amended Complaint to Determine Dischargeability Pursuant to 11 U.S.C. § 523(a)(15) and for Declaratory Judgment, and the Answer of Substituted Party Pennsylvania Higher Educati...
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MEMORANDUM OPINION RE: OBJECTION TO CONFIRMATION BY BANK OF GLEASON In the case at bar, the Bank of Gleason, (“The Bank”), filed an objection to confirmation of the debtor’s chapter 13 plan on November 7, 2006. The Bank objected to the debtor’s plan based on the debtor’s proposed bifurcation of its claim. In her chapter 13 plan, the debtor, Pamela Joyce Bray, (“Bray” or “debtor”), proposed to p...
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MEMORANDUM OPINION AND ORDER DENYING MARIA PINIE-RO’S MOTION FOR RECONSIDERATION OF CLAIM This matter came before the Court .upon the Motion for Reconsideration of Claim, C.P. No.2042 (the “Motion for Reconsideration” or “Motion”), filed by Maria Piniero as personal representative of the estate of Florencio Pernas. The Court held an initial hearing on the Motion on December 5, 2006, a...
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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 the Debtor’s Claim of Exemptions is hereby denied. OPINION The issue before the Court is whether 11 U.S.C. § 522(e)(1), as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”), provides a Chapter 7 trustee with a valid ba...
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MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT This cause came on for consideration of the Plaintiff/Trustee’s Motion for Summary Judgment (Doc. #29) and the Defendant’s Memorandum in Opposition (Doc. # 30) filed in the above-captioned adversary proceeding. The Plaintiff filed the Complaint against Debtors Robert and Jill Easter and American General Financial Services, In...
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MEMORANDUM OF DECISION Debtor objected to the claim of eCast Settlement Corporation (“eCast”)[Doc. #30] and eCast contests the objection. The basis of Debtor’s objection is § 502(k) 1 of the Bankruptcy Code, 11 *646 U.S.C. § 502(k), which was added to Title 11 by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) effective October 17, 2005. The court has juri...
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MEMORANDUM OPINION ON ORDER DENYING CONFIRMATION OF DEBTOR’S AMENDED CHAPTER 13 PLAN I. INTRODUCTION Pamela Page Nowlin (the Debtor) filed a proposed Chapter 13 plan which would last *672 60 months. Although the Debtor has a 401 (k) loan obligation which will be satisfied on month 24 of this proposed plan, the proposed plan payments are not scheduled to increase in months 25 through 60. Dav...
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MEMORANDUM OF OPINION AND ORDER This matter before the Court is the motion of the United States Trustee (the “Trustee ”) to dismiss Charles L. and Lisa M. Billie’s (the “Debtors ”) bankruptcy case pursuant to 11 U.S.C. § 707(b)(2) and (b)(3) of the Bankruptcy Code (the “Mo *588 tion ”). The Debtors oppose the requested relief. The Court acquires core matter jurisdiction over the...
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MEMORANDUM This case is before the court on the objection by the trustee to claims no. 48 and 103, as amended, filed by the Hamilton County Delinquent Tax Office (hereinafter “Hamilton County”), and the response thereto by Hamilton County. After notice and a hearing, and after hearing the arguments of counsel for the trustee and for Hamilton County, the court took the matter under adv...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon (i) the Motion for Entry of Final Decree (“Final Decree Motion”) filed by Reorganized Lake Diamond Associates, LLC (“Debt- or”), the Objection to the Motion for Entry of Final Decree (“Final Decree Objection”) filed by Silver Capital of Central Florida, LLC (“Silver”), and Debtor’s Response to Objection of Silv...
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MEMORANDUM DECISION AFTER TRIAL Before the Court is Plaintiff Sarah Cec-coni’s (“Sarah”) 1 complaint against Gui-seppe Enzo Cecconi (“Enzo”) and A.C. Spicer, Trustee in Bankruptcy (under U.K. Insolvency Laws) (“Trustee”) and Trustee’s related counterclaim and cross-claim. Sarah seeks a determination that the house and property located at 3190 Del Ciervo Drive, Pebble Beach, Cal...
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MEMORANDUM OPINION This matter came before the court on November 27, 2006 as a trial on the complaint of Imperial Trading Company, Inc. (“Imperial”), seeking the court’s determination whether the debtor was indebted to Imperial, and whether such debt was dis-chargeable under various subsections of 11 U.S.C. § 523. For the reasons set forth below, the court finds that any debt that mig...
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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 Patricia Haman (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”). The Debtor opposes the Motion to Dismiss, conceding that the presumption of abuse has arisen pursuant to secti...
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ORDER DENYING DEBTOR’S MOTION FOR CONTEMPT The matter before the Court is Debtor’s Motion for Contempt for Violation of the Automatic Stay Pursuant to 11 U.S.C. 362(h) (“Motion for Contempt”) and Creditor’s Response to Debtor’s Motion for Contempt for Violation of Automatic Stay. A hearing on this Motion was held on April 9, 2007 where each party appeared by counsel. Based on a consideration ...
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MEMORANDUM OPINION AND ORDER This matter comes before the court on cross-motions for summary judgment filed herein by the Plaintiff Chapter 13 Trustee Beverly Burden (“Trustee”) (Doc. 12) and by the Defendant The CIT Group/Consumer Finance, Inc. (“Creditor”)(Doc. 20) as to the validity and priority of the competing interests of the Trustee and the Creditor in certain real estate owned...
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MEMORANDUM OF DECISION Introduction Before the Court is a relief from stay motion (“Motion”) filed by the Debtor’s former wife, Paula M. Carlin (“Carlin”) concerning a prepetition fee award of $15,000 in her favor issued in post-divorce litigation between the Debtor and her (“Fee Award”). Carlin asks that the Court (a) find that collection of the Fee Award from exempt property of the Debt- ...
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MEMORANDUM OPINION These matters come before the Court on the motion of Ashley M. Gossett (the “Debtor”) for sanctions pursuant to 11 U.S.C. §§ 362(a)(3) and 362(k)(I) against General Motors Acceptance Corporation (“GMAC”) and the Development Group, and on the motions of GMAC to annul the automatic stay pursuant to 11 U.S.C. § 362(d) and to dismiss the case under 11 U.S.C. §§ 109(h)(1...
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OPINION GRANTING IN PART, DENYING IN PART MOTION TO DISMISS CERTAIN CLAIMS IN FIRST AMENDED COMPLAINT I. INTRODUCTION This litigation arises from the purchase by Enron Wind Energy Systems, LLC, Enron Wind Constructors, LLC, and Zond Minnesota Construction Company, LLC (collectively, “Enron Wind” or the “Plaintiffs”) of generators from Defendant Marathon Electric Manufacturing Corpora...
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OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND THE COMPLAINT The Official Committee of Unsecured Creditors of 360networks (USA) inc., et al. (the “Plaintiff’) brought an action against Pirelli Communications Cables and Systems USA LLC (“Pirelli” or the “Defendant”) seeking the avoidance, recovery, and turnover of certain preferential transfers pursuant to §§ 54...
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OPINION 1 INTRODUCTION In January and August, 2000, Plassein International Corporation (“Plassein” or “Debtors”) acquired five privately held corporations by purchasing the shares of the companies’ respective shareholders. The Chapter 7 trustee, William Brandt (“the Trustee”) has brought suit against the selling shareholders who are named defendants (“the Shareholders” or...
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MEMORANDUM OF DECISION Introduction Before the Court is a relief from stay motion (“Motion”) filed by the Debtor’s former divorce lawyer, Stephen G. Crowne (“Crowne”) concerning a prepetition fee award of $18,320.03 in Crowne’s favor issued in post-divorce litigation between the Debtor and his former wife (“Fee Award”). Crowne asks that the Court (a) find that collection of the Fee Award from ex...
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MEMORANDUM OPINION This matter came on for trial on October 19 and 20, 2006 on the complaint of Elvin Martinez, the debtor, against the Internal Revenue Service of the United States under 11 U.S.C. § 523(a)(1)(A) seeking a discharge of the tax obligations of Mr. Martinez. For the reasons set forth below, the court finds that the tax obligations of the debtor for the years 1990 through 1993 ar...
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*586 MEMORANDUM OPINION This matter came before the Court on Michael L. Jones’ (“Debtor”) Complaint to Recover Property of the Estate, filed against Wells Fargo Home Mortgage, Inc. (“Wells Fargo”). Defendant Wells Fargo filed a timely Answer, and on January 5, 2007, the Court conducted a trial on the merits. Entering appearances at the trial were: Robin R. DeLeo Alan Ro...
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REASONS FOR ORDER This matter came on for hearing on August 9, 2006 on the motion of certain former members of the Board of Directors of Fortune Natural Resources Corporation *560 (“Fortune” or “debtor”) requesting allowance of compensation under 11 U.S.C. § 503(b) (P-1806) and the objections thereto filed by the Unsecured Creditors’ Committee (“UCC”) (P-1889) and R. Patr...
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MEMORANDUM OPINION Currently before the Court is the Defendant’s Motion for Summary Judgment *241 filed by the U.S. Department of Education Borrower Services Department Direct Loans (“Defendant”) seeking dismissal of the Debtor’s Adversary Proceeding filed pursuant to 11 U.S.C. § 523(a)(8) in an attempt to discharge a prepetition educational loan. For th...
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MEMORANDUM OF OPINION This adversary proceeding, easily resolved once the merits are reached, presents a thicket of legal issues — post-confirmation subject matter jurisdiction, res judicata and other equitable defenses (and whether those unpleaded affirmative defenses were waived), standing to assert the claims contained in the complaint, amendment of the pleadings pursuan...
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MEMORANDUM DECISION ON CREDITOR’S AMENDED OBJECTION TO CONFIRMATION Before the Court is the amended objection of American Express Centurion Bank (“Creditor”) to confirmation of the amended chapter 13 plan of Cathie M. Swan (“Debtor”). Creditor’s objection is based on the assertion that (1) Debtor has not pledged all of her projected disposable income in support of the amended plan; (2) th...
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MEMORANDUM OPINION Pennsylvania Lawyers Fund for Client Security (PLFCS) seeks a determination *462 that four debts owed to it as the subrogee of some of debtor’s clients are excepted from discharge by § 523(a)(4) of the Bankruptcy Code. Debtor George Baillie has conceded that two of the debts totaling $19,300 are excepted from discharge. He denies, however, that two...
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DECISION AND ORDER This cause comes before the Court upon the Plaintiff/Trustee’s Motion for Summary Judgment and the Defendant’s Response. The Trustee’s Motion is brought on his Complaint to avoid a preferential transfer based on 11 U.S.C. § 547(b). This Court has reviewed the arguments of counsel, exhibits, and the entire record of the case. Based upon that review, and for the following rea...
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MEMORANDUM OPINION IN SUPPORT OF ORDER DENYING TRUSTEE’S MOTION TO MODIFY CHAPTER 13 PLAN TO PAY OFF CASE IN FULL On February 21, 2007, came on for hearing the Motion to Modify Chapter 13 Plan to Pay Off Case in Full filed in the above styled and numbered case by the Chapter 13 Trustee, Stuart Cox. The Trustee appeared pro se, and the Debtor, Sonia Zava-la, appeared in person and thro...
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OPINION On consideration before the court is a motion for partial summary judgment filed by the plaintiff, Henry J. Applewhite, Trustee for the Estate of Raymond F. Akin and Lillie V. Akin, (“trustee”); a response thereto having been filed by the defendants, Karen Angelique Akin Little and Robert A. Akin; no response having been filed by the defendant/debtors, Raymond F. Akin and Lill...
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ORDER DENYING CHAPTER 13 PLAN CONFIRMATION THIS MATTER came before the Court on the Debtors’ Motion to Confirm Chapter 13 Plan. The present plan of reorganization represents the Debtors’ fifth plan (hereafter “the Plan”) filed in this case, since the August 24, 2005 petition date. Both the Standing Chapter 13 trustee (the “Trustee”) and EMC Mortgage Corporation (“EMC”) continue to object ...
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MEMORANDUM OF DECISION This matter is before the Court to consider confirmation of the Debtor’s Second Amended Chapter 13 Plan (the “Plan”) proposed by the Debtor, Michael D. Ada-way (“Debtor”) in the above-referenced Chapter 13 case. Citifinancial Auto Credit, Inc. f/k/a Auto One Acceptance Corporation (“Citifinancial”) objected to the confirmation of the Plan, and specifically the Plan’s bi...
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MEMORANDUM OF OPINION The Debtor is a single asset real estate corporation that owns 24 out of 33 lots (22 of which are unimproved) that comprise a development in Riverdale, New York known as Delafield Estates. Delafield Estates initially included the Delafield Mansion (since destroyed by fire) and other property that was restricted as to site management, preservation and restoration. As early ...
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MEMORANDUM DECISION AWARDING JUDGMENT IN FAVOR OF THE PLAINTIFFS This adversary proceeding was commenced by the filing of a complaint (the “Complaint”) by the People of the State of New York by the Attorney General of the State of New York (the “Plaintiffs”) against John Suarez a/k/a John Maldonado, the debtor in the above-captioned Chapter 7 case (the “Debtor”). By their Complaint, the P...
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*7 MEMORANDUM Hearing was held in Lincoln, Nebraska, on April 4, 2007, on Confirmation of Debt- or’s Amended Chapter 13 Plan (Fil.# 11), and an Objection filed by LincOne Federal Credit Union (Fil.# 16). Justin Carter appeared for Debtor, and Joel Lonowski appeared for LincOne Federal Credit Union (“LincOne”). This memorandum contains findings of fact and conclusions of law required by Fede...
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MEMORANDUM DECISION DENYING DEBTOR’S MOTION TO REOPEN CASE AND VACATE ORDER OF DISMISSAL On March 8, 2007, Paul Anthony Waugh, the above-captioned debtor (the “Debtor”), filed a motion pursuant to Federal Rule of Bankruptcy Procedure 9024 and Federal Rule of Civil Procedure 60(b) for an order reopening the above-captioned case and vacating the order of dismissal entered on March 17, 2006 (the “...
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MEMORANDUM OPINION 1 The matter before the court is Debtors’ request for the disallowance of 71 property damage claims filed and signed by the law firm of Speights & Runyan (“Speights”) for which Speights failed to establish that *304 authority existed prior to the March 31, 2003, bar date. Written authority to file the claims was either undated or dated af...
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*502 OPINION 1 BACKGROUND On October 16, 2003, American Classic Voyages Company (“AMCV”) and its affiliates, 2 by and through Paul Gunther, the Plan Administrator (the “Plaintiffs”), filed a complaint against defendants JP Morgan Chase Bank (“Chase”), National City Bank of Michigan/Illinois (“NCB”), and Hibernia National Bank (“Hibernia”)(collectively,...
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AMENDED MEMORANDUM OPINION 1 On July 26, 2006, the Court conducted a hearing to consider confirmation of the Amended Chapter 13 Plan (the “Amended Plan”) proposed by the debtor, Michael Guy Aprea, in this case. Objections to confirmation of the Amended Plan were filed by MBNA America Bank, N.A. (“MBNA ”), an unsecured creditor, and by Janna Countryman, the Chapter 13 trustee. For the re...
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*799 MEMORANDUM OPINION IN SUPPORT OF JUDGMENT REVOKING THE DISCHARGE OF JERILYN H. SILVER Lincoln National Life Insurance Company (“Lincoln”) filed a complaint seeking to revoke the discharge granted to debtor Jerilyn H. Silver. Having considered all the evidence and arguments, the Court finds that Ms. Silver’s discharge should be revoked. 1 PROCEDURAL BACKGROUN...
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MEMORANDUM OF DECISION I. Anton Richard Sattler and Sattler Builders and Decorating Co., Inc. (together “the plaintiffs”), the holders of secured, unsecured, and administrative claims totaling $311,193.03, on February 23, 2006, filed a complaint against Christopher T. Shallow (“the debtor”), the debtor in a Chapter 7 bankruptcy case commenced on July 13, 2005. The plaintiffs seek denial of ...
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MEMORANDUM OPINION AND ORDER DENYING MOTION TO REOPEN Before the court is the debtor’s motion to reopen his closed case in order to seek sanctions against Justice Federal Credit Union (“Justice FCU” or “the credit union”) for violation of the discharge injunction by reporting a discharged debt to a credit reporting agency as “charged off.” A hearing on the motion was held on March 27, 200...
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DECISION In this adversary proceeding, Martini J. Grice (“debtor”) seeks a determination that upon successfully completing her current chapter 13 case, she will be entitled to receive a discharge by having complied with the two-year waiting period between bankruptcy filings, as provided by 11 U.S.C. § 1328(f)(2). Mary B. Grossman, chapter 13 trustee (“trustee”), opposes the debtor’s request and...
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MEMORANDUM AND ORDER ON CASH COLLATERAL The debtor’s October 30, 2006 motion seeks a determination that a cash dividend from his interest in Ramze Zakka, Incorporated was not the cash collateral1 of Forrester Construction, but if it was, he seeks authority to use it upon providing adequate protection to Forrester. Cf. § 363(e). BACKGROUND Prior to the commencement of this case, Forrester brought a...
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MEMORANDUM OPINION This case comes on for confirmation of the debtors’ amended Chapter 13 plan. 1 Under that plan, the debtors propose to dedicate their projected disposable income to the payment of their unsecured creditors for a period of 36 months. The trustee objects that the debtors are not devoting all of their projected disposable income to payment of unsecured creditors as required ...
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MEMORANDUM OPINION Debtor Robert Shahan filed this chapter 13 case on August 31, 2006. 1 His wife, Debra, did not file a petition. Both Robert and Debra are employed however, and he reported Debra’s income on Form B22C, the means test form for chapter 13 debtors. 2 The Trustee objected to confirmation of Robert’s plan on the grounds that he does not offer to pay his unsecured creditors al...
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MEMORANDUM OF DECISION GRANTING DEBTORS’ MOTION FOR SUMMARY JUDGMENT AND DISALLOWING AMENDED CLAIM OF MICHAEL Q. CAREY FOR ATTORNEYS’ FEES INTRODUCTION This decision granting summary judgment to the Debtors on their claim objection and disallowing a claim by an attorney-creditor for fees incurred in collecting a bill owed by his former client relies heavily on two recent case law dev...
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JUDGMENT Trial was held on December 12, 2006, and continued on March 20, 2007, on Plaintiffs adversary complaint to discharge student loan debt. Richard Register appeared for Plaintiff; Laurie M. Barrett appeared for the U.S. Department of Education; Abigail L. Rushing appeared for the Texas Higher Education Coordinating Board; Christopher D. Curzon appeared for the Texas Guaranteed Student L...
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OPINION GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I. Introduction The Debtors in this case sold real property that was subject to a lien without satisfying the mortgage debt from the sale proceeds. Transnation Title Insurance Company brought this adversary proceeding under § 523(a)(2)(A) of the Bankruptcy Code, seeking a determination that a debt owing by the Debtors, ...
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Amended Opinion Regarding Debtor’s Attorney’s Application for Compensation This matter is before the Court on attorney Kurt O’Keefe’s Application for Compensation. O’Keefe filed a fee application on October 16, 2006. On November 6, 2006, the chapter 13 trustee objected to the fee application based on O’Keefe’s failure to indicate a breakdown of services, failure to indicate who perfor...
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OPINION Before the Court is the motion for summary judgment filed by Kim E. Phillips and Mary M. Phillips, the Debtors (individually referred to as “KIM” and “MARY” and jointly referred to as “DEBTORS”), against Colchester State Bank (COL-CHESTER), on its Complaint seeking a determination that its debts are nondis-chargeable pursuant to Section 523(a)(2)(B) of the Bankruptcy Code. For...
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MEMORANDUM OPINION ON MOTION FOR SUMMARY JUDGMENT Frank M. Pees, the standing Chapter 13 Trustee and the plaintiff in this adversary proceeding (“Pees” or “Plaintiff’), has filed a complaint that seeks to strip off what he alleges is a wholly unsecured second mortgage on residential real estate owned by the Chapter 13 debtors, Walter L. Claar and Patricia L. Claar (“Debtors”). The rea...
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OPINION In the above-captioned adversary proceeding, the plaintiff, Jeffrey J. Sperazza, *401 asserts that his student loan obligations should be discharged under chapter 7 as they impose an undue hardship upon him pursuant to 11 U.S.C. § 523(a)(8). At bottom, Mr. Sperazza contends that he has a learning disability that inhibits him from securing and retaining gainful employment, maintaining ...
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AMENDED MEMORANDUM DECISION Steven M. Speier, Chapter 7 Trustee (“Speier”) seeks an order compelling Kenneth J. Catanzarite, Richard Vergel de Dios and the Catanzarite Law Corporation (collectively, “Catanzarite”), attorneys for Debtor, Eugene H. Perrine, Jr. (“Perrine”) to disgorge undisclosed fees received by Catanzarite within one year before the filing of Perrine’s bankruptcy petition...
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MEMORANDUM DECISION REGARDING STANDARD FOR VALUATION OF CREDITOR’S CLAIM Before the Court is the Debtors’ Motion to Modify Chapter 13 Plan (“Motion”). The Debtors, Casey and Barbara Young (“Debtors”), filed their original Chapter 13 plan (“Plan”) on July 30, 2004. The Plan was confirmed without objection on September 24, 2004. Debtors filed the instant Motion on October 5, 2005. Having received no...
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MEMORANDUM OPINION ON OBJECTION OF TAXING AUTHORITY TO SUMMARY PLAN CONFIRMATION I.INTRODUCTION In his proposed Chapter 13 plan, War-dell Jones (the Debtor) proposes to pay Montgomery County (the County), a taxing authority, the state statutory interest rate on the principal tax claim, but proposes to pay no interest on the penalties, interest and legal fees related to the tax claim....
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Memorandum Opinion Before the Court are the (1) Motion of Commerce Bank N.A. (“Commerce”) for Relief from the Automatic Stays Pursuant to 11 U.S.C. § 362 and 11 U.S.C. § 1301 to Allow Repossession and Sale of Motor Ve-hide and, in the Alternative, For Adequate Protection Pursuant to 11 U.S.C. § 1326(a)(1)(C) (the “Stay Motion”) and (2) that part of the Motion for Equitable Relief to R...
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MEMORANDUM OPINION This matter comes before the court on the Objection of AmeriCredit Financial Services, Inc. to Confirmation of Debtor’s Proposed Chapter 13 Plan. AmeriCredit asserts that because the plan does not provide for payment of its debt as determined under nonbankruptcy law, the plan cannot be confirmed. For the reasons stated below, the court sustains the objection. BACKGROUND T...
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MEMORANDUM OPINION AND ORDER SUSTAINING FIRST CITIZEN BANK’S OBJECTION TO CONFIRMATION This matter is before the Court on First Citizens Bank’s (“FCB”) Objection to Confirmation of the debtor’s Chapter 13 Plan; specifically, FCB objects to the bifurcation of its claim and alleges that it should be paid as fully secured following the addition of the “hanging paragraph” 2 to § 13...
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MEMORANDUM OF DECISION ON MOTION FOR RELIEF This matter came before the Court for hearing on the second “Motion of HomEq for Relief from Stay” [docket # 31] to pursue an action to evict the Debtor from property located at 23 Sigel Street, Worcester, Massachusetts (the “Property”). As with its previous unsuccessful motion for relief [docket # 10], HomEq Servicing Corporation (“HomEq”) clai...
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AMENDED 1 OPINION GRANTING TRUSTEE’S MOTION TO DISMISS CHAPTER 7 CASE I. Introduction On August 24, 2006, Mark Zaporski filed this chapter 7 case. The U.S. Trustee moved to dismiss this case for abuse. The UST’s motion is brought under § 707(b)(2) and (3) of the Bankruptcy Code. On December 15, 2006, the Court held a hearing on the UST’s motion. The parties agreed ...
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Memorandum of Decision Denying Trustee’s Second Motion to Reconsider and Vacate the Order Granting Debt- or a Fee Waiver In this case, the Court is called upon to determine the parameters of 28 U.S.C. § 1930(f)(1), the fee waiver provision promulgated under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. 109-8, 119 Stat. 23 (2005), and the relate...
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Decision Granting Motion for Summary Judgment BEFORE THE COURT is Defendant Washington Mutual’s motion for summary judgment [Doc. # 16] (“Motion”), Plaintiffs reply thereto [Doc #26] (“Reply”), and Defendant’s response [Doc. # 28]. *582 The question before the Court is whether the bare fact that the post-bankruptcy debtor’s credit reports contain information showing that a de...
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OPINION PARTIALLY GRANTING AND PARTIALLY DENYING DEBTORS’ MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE PORTIONS OF AFFIDAVITS WorldCom, Inc. (“WorldCom”) and certain of its direct and indirect subsidiaries, as debtors and debtors in possession (collectively, referred to as the “Debtors” herein at all times pre- and post-petition) filed a motion for summary judgment and a motion to str...
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OPINION AFTER TRIAL National Audit Defense Network (“NADN” or “debtor”) engaged in the selling of tax shelters and other products designed to take advantage of people’s disdain for paying taxes. Its products were close to worthless, leading ultimately not only to this bankruptcy on June 11, 2003, 1 but to a permanent injunction against NADN’s further dissemination of tax-avoida...
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MEMORANDUM DECISION REGARDING RECLAMATION CLAIMS UNDER SECTION 516(C) OF THE BAPCPA Before the Court is the motion of the Dana Corporation (“Dana”) and 40 of its domestic direct and indirect subsidiaries (together with Dana, the “Debtors”), seeking a value determination of zero for certain of the reclamation claims filed in these cases. Twenty-four objections to the motion were filed....
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Opinion Introduction. In three related bankruptcies, two trustees and a secured lender have filed an identical fifteen count complaint against four individuals and various entities controlled by them. The Complaint alleges federal racketeering and state common law claims. All Defendants move for dismissal of all counts with the exception of Count V. The motion is opposed by t...
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Memorandum of Decision Regarding Motion for Summary Judgment I. Introduction The matter before the Court is the motion for summary judgment of Fresia Her-mosilla (the “Plaintiff’) on the count which she brought under 11 U.S.C. § 523(a)(6) based upon the fraudulent transfer of property from her ex-husband to her stepson, Alex Hermosilla (the “Debtor”). Because there is no pre-...
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MEMORANDUM This matter came before the Court for trial on March 21, 2007, on the Complaint Objecting to Entry of Debtor’s Discharge filed by the Plaintiff, Jocelyn Bergeron (the “Plaintiff’). Raymond Ross (the “Defendant”), Defendant’s counsel, and Plaintiffs counsel all appeared before the Court. The Court considered the testimony and exhibits presented at trial and enters the following Findin...
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MEMORANDUM OPINION I. INTRODUCTION At issue in this case is the ownership of the residential real property located at *447 2521 S. Garnet Street, Philadelphia, PA (“the Property”). More than two (2) years before the commencement of this bankruptcy case, Caroline Stewart (“Mrs. Stewart”) executed and delivered a deed conveying record ownership of the Prop...
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MEMORANDUM OF DECISION ON CHASE BANK USA, N.A.’S MOTION TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS UNDER FED. R. BANKR. P. 7012 Chase Bank USA, N.A. (“Chase”) has moved in the Torres proceeding for judgment on the pleadings under Fed.R.Civ.P. 12(c) and in the Mateo proceeding to dismiss the complaint under Fed.R.Civ.P. 12(b)(6), each incorporated by Fed. Bankr....
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MEMORANDUM OPINION On April 5, 2007, this court conducted a hearing (the “Hearing ”) on the “Motion of Lisa Farrar Dunn f/k/a Lisa Farrar for Relief from Automatic Stay” (the “Motion ”) filed by Lisa Farrar Dunn (“Dunn”). The court heard testimony from the Debtor (sometimes “Renfro ”) and oral arguments from counsel for Dunn, and John Dee Sp...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon the complaint filed by Aaron R. Cohen, as Trustee for the Chapter 7 Estate of Donna Marie Engelbrecht, seeking a declaratory judgment. After a trial held on October 17, 2006, and January 16, 2007, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. On July 17, 2001, Do...
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ORDER DENYING OBJECTION TO CLAIM OF EXEMPTIONS This matter is before the court on the objection by the trustee to the debtor’s claim of exemptions in 20 mobile homes. The debtor claims an exemption in the homes as tenancy by the entirety property. The trustee alleges that the homes are owned solely by the debtor and are therefore not exempt. A hearing was held in Wilson, North Carolina on...
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MEMORANDUM OPINION The Court held a hearing on the Debt- or’s Request for Entry of Order of Dismissal of Bankruptcy Case Pursuant to 11 U.S.C. § 521(i)(2) (“Motion”) on April 18, 2007 at 9:30 a.m. As this is a matter which arises both under Title 11 and in a case under Title 11, this is a core proceeding *596 under 28 U.S.C. § 157(b)(1) and (2). As such, this Court has jurisdiction to enter...
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*2 ORDER DENYING DEBTOR’S MOTION FOR “WAIVER” OF DUTIES UNDER 11 U.S.C. §§ 109(h) and 727(a)(ll) This Chapter 7 case came on before the court on April 30, 2007, for hearing on the motion of the Debtor, styled as one “to Waive Financial Counseling and Debtor Education Requirements Due to Exigent Circumstances.” The Debtor appeared by his attorney, Michael J. Corbin. There were no other appeara...
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MEMORANDUM OF DECISION Before the court is the Motion for Summary Judgment filed by the City of South Bend (“City”), defendant in this adversary proceeding. It moves for summary judgment in its favor on the Complaint filed by Ginger Kay Phillips (“Phillips” or “debt- or”), chapter 7 debtor and the plaintiff in this case. The debtor filed a brief on the Complaint and a Response Brief a...
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OPINION This matter is before the Court after trial on the Complaint filed by Susan L. Freer (MRS. FREER) against Mark A. Beetler (MR. BEETLER) and Lori A. Beetler (MRS. BEETLER) (together, the DEBTORS) alleging that the DEBTORS’ failure to remit the proceeds from the sale of a consigned tractor gives rise to a non-dischargeable debt. Facts The DEBTORS bought the busines...
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DECISION & ORDER BACKGROUND On March 24, 2005, Paul W. O’Brien (the “Debtor”) filed a petition initiating a Chapter 7 case, and Richard P. Vullo, Esq. (the “Trustee”) was appointed as his Chapter 7 Trustee. On December 11, 2006, the Trustee filed a Motion for Summary Judgment on Turnover Demand (the “Summary Judgment Motion”), which asserted that: (1) a January 27, 2004 Employment Agreement (th...
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369 B.R. 526 (2007) In re Rick BRITT, Debtor. William E. Pierce, Plaintiff, v. Bank of the West, Defendant. Bank of the West, Third Party Plaintiff, v. Bradley Chevrolet, Third Party Defendant. Bankruptcy No. 0:06-bk-00123-RJH, Adversary No. 0:06-ap-00029-RJH. United States Bankruptcy Court, D. Arizona. May 2, 2007. *527 Danelle G. Kelling, Esq., John G. Sestak, Jr., Esq., Jennings, Strouss &...
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MEMORANDUM OPINION AND ORDER GRANTING IN PART, AND DENYING IN PART, BENEFICIAL MORTGAGE COMPANY OF KANSAS, INC.’S MOTION FOR SUMMARY JUDGMENT This adversary proceeding is before the Court on Defendant’s Motion for Summary *659 Judgment. 1 It is related to the Plaintiffs’ bankruptcy proceeding and all parties have consented to the trial and entry of a final order by...
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MEMORANDUM OPINION This opinion is with respect to the motion (Adv. Doc. # 12) of defendant Century Indemnity Company (“Century”) for deter *524 mination that this adversary proceeding brought by Consolidated SWINC Estate and SWE & C Liquidating Trust (collectively, “Plaintiffs”) is non-core. For the reasons outlined below, I will grant Century’s motion. BACKGROUND ...
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MEMORANDUM OPINION This opinion is with respect to the joint motion (Doc. # 97) of Mellon Bank, N.A., Goldman Sachs, & Co., Highland Capital Management, L.P., and George V. Hager (collectively, “Defendants”) for a stay of proceedings pending appeal and extension of time to answer the complaint. For the reasons set forth below, I will grant a limited extension. BACKGROUND A full ...
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*521 OPINION The issue here is whether § 707(b)(2)(A)(ii)(I) of the Bankruptcy Code 1 permits a debtor to claim an ownership expense deduction for a vehicle that is owned free and clear of liens, for purposes of determining “the debtor’s projected disposable income” for a Chapter 13 plan. The Court concludes that § 707(b)(2)(A)(ii)(I) allows such a deduction in the amount specified by the I...
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MEMORANDUM OF OPINION AND ORDER Before this Court is the Complaint Objecting to Dischargeability of Debt (the “Complaint”) pursuant to 11 U.S.C. §§ 523 and 727 filed by Buckeye Retirement Co., L.L.C. (“Buckeye”) against Richard F. and Joan A. Howells (the “Debtors”). The Debtors have answered with a general denial. This Court has core matter jurisdiction over this adversary proce...
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MEMORANDUM OPINION This is an unusual case of post-petition financing gone bad. In 2005, Arlington Hospitality, Inc. and its subsidiaries (collectively, “Arlington”), operators of the “AmeriHost” hotel chain, filed for relief under chapter 11. Before filing, Arlington hastily negotiated an agreement for post-petition financing with Arlington LF, LLC (“LF”), an unrelated entity. After ...
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MEMORANDUM OPINION AN ORDER CONFIRMING CHAPTER 13 PLANS Confirmation of the above Debtors’ respective Chapter 13 plans is pending before the Court. 1 At the Debtors’ confirmation hearings, the Court confirmed the Debtors’ Chapter 13 plans over the objections of the Creditors 2 based upon this Court’s prior decision in In re Wampler. This Memorandum Opinion...
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ORDER DENYING MOTION TO DISMISS This matter came before the Court on the United States Trustee’s (the “Trus *755 tee”) Motion to Dismiss Pursuant to 11 U.S.C. § 707(b) (the “Motion”). Following a hearing on January 9, 2007, the Court requested that the parties file post-hearing briefs. Those briefs having been filed, the Court now issues the following Order. 1 Facts and Procedural Hist...
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MEMORANDUM OPINION The debtors, Samuel and Denise Mathis, seek confirmation of their chapter 13 plan, which requires plan payments for three years. The chapter 13 trustee, Marilyn O. Marshall (“trustee”), objects to confirmation because the debtors* income is “over-the-median” for their state but their proposed plan will not last for the five-year *631 commitment period t...
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MEMORANDUM OF DECISION Introduction Domingo Lopez borrowed $42,500 from Luz Cruz and Indelfonso Ramos in August 2003. Thereafter, in November 2003, Lopez commenced the underlying Chapter 7 bankruptcy case. In that case, Cruz and Ramos sued Lopez, seeking to deny his discharge, thereby commencing this adversary proceeding. They allege that Lopez concealed or transferred certain Puerto Rican ...
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MEMORANDUM OF DECISION I. Henry S. Zembko, III (“the debtor”), then aged about 29 and represented by prior counsel, filed a “no asset” Chapter 7 bankruptcy petition on December 26, 2001. Following the debtor’s examination by the Chapter 7 trustee at the § 341 meeting of creditors, the Chapter 7 trustee filed a *255 “report of no distribution.” The court, on April 16,...
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MEMORANDUM AND ORDER ON MOTIONS FOR SANCTIONS Controversies between debtors and creditors are the standard fare of bankruptcy litigation. What sets these proceedings apart are the claims against attorneys. Courts are obligated to exercise *260 particular care in assessing claims for sanctions against attorneys to preserve the line between appropriate and overzealous advocacy....
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MEMORANDUM OPINION THIS MATTER is before the Court on cross-motions for summary judgment filed by Defendant Specialized Loan Servicing, LLC (“SLS”) and Plaintiff Philip J. Montoya (the Chapter 7 Trustee). 1 Defendant Litton Loan Servicing, LP (“Litton”), filed a Disclaimer of Interest in this adversary proceeding, conceding that the mortgage that forms the basis of its clai...
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MEMORANDUM OF DECISION Granting Judgment in Favor of the Plaintiff and Against Defendants Education Credit Management Corporation and Vermont Student Assistance Corporation Plaintiff James F. King, III (“King” or the “Plaintiff’) initiated the instant adversary proceeding against the Vermont Student Assistance Corporation (“VSAC”), Wells Fargo Education Financial Services, an...
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DECISION ON APPLICATION TO RETAIN COUNSEL TO THE TRUSTEE In this case under chapter 7 of the Bankruptcy Code, the newly elected chapter 7 trustee for the Estate, Matthew C. Harrison (the “Trustee”), has applied to employ attorney Leo Fox, Esq. under section 327(a) of the Code. The United States Trustee (“UST”) opposes the application. Insofar as the Court can determine, the UST does not contend t...
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Opinion Regarding Cross Motions for Summary Judgment This matter is before the Court on a motion for summary judgment filed by trustee, K. Jin Lim. Lim seeks to avoid as a preferential transfer the security interest of New Century Mortgage Corp. in the debtors’ property. New Century filed a cross motion for summary judgment. The Court heard oral argument on August 14, 2006. No de...
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MEMORANDUM This case came before the court on the Chapter 13 Plan filed by the debtor on March 2, 2007, as orally amended on April 12, 2007, and objections to confirmation thereof filed by Donna Dodson and the chapter 13 trustee on April 3 and 4, 2007, respectively. For the reasons set forth below, the court will sustain the objections, deny confirmation of the plan, and dismiss this case. In 19...
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MEMORANDUM This adversary proceeding is before the court upon the Complaint filed by the Chapter 7 Trustee, Ann Mostoller, seeking to avoid, pursuant to 11 U.S.C. § 544(a) (2006), a lien encumbering real property of the Debtors grounded upon a defective acknowledgment in the Defendant’s Deed of Trust. Facts and documents essential to the resolution of all issues are before the court o...
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MEMORANDUM OPINION Shelia Hodge, the debtor in the underlying chapter 13 case, filed this adversary proceeding on November 15, 2006, seeking damages for The Money Shop, LLC’s (“Money Shop”) alleged willful violation of the automatic stay imposed by 11 U.S.C. § 362. The summons and complaint were served on the Money Shop through its registered agent, Linda McClain. *846 The M...
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ORDER FOR JUDGMENT This matter came before the Court on the Chapter 7 trustee’s complaint seeking to avoid the transfer of an inheritance into a special needs trust as a fraudulent transfer pursuant to 11 U.S.C. § 548, and to recover the transfer from the trustee of the special needs trust pursuant to 11 U.S.C. § 550(a). At the conclusion of the trial, the Court took the matter under advi...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter is before the Court on Defendant Mortgage Electronic Registration System’s (“MERS”) motion for summary judgment (Doc. 13), the Chapter 13 Trustee’s response (Doc. 14), and MERS’ reply (Doc. 15). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the general order of reference entered in this district....
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ORDER GRANTING PLAINTIFF TRUSTEE’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter is before the Court on the parties’ cross-motions for summary judgment and responses (Doc. 22, 23, 30). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the general order of reference entered in this district. This is a core procee...
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*795 ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter is before the Court on Defendant ABN AMRO Mortgage Group’s (“ABN AMRO”) motion for summary judgment (Doc. 14), Plaintiff-Trustee’s response (Doc. 17), ABN AMRO’s reply (Doc. 18), and the Trustee’s sur-reply (Doc. 19). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the general order of refere...
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MEMORANDUM-OPINION This matter is before the Court on the Motion to Dismiss of Defendant RoyCom Limited (“RoyCom”). The Court considered RoyCom’s Motion, the Response to the Motion to Dismiss of Thomas W. Frentz, the Chapter 7 Trustee (“Trustee”) for Debtors ThermoView Industries, Inc., et al. (“Debtors”), the Reply in Support of Motion to Dismiss of RoyCom, the Stipulation of Facts f...
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MEMORANDUM AND ORDER DENYING TRUSTEE’S MOTION TO COMPEL TURNOVER OF FUNDS On April 3, 2007, following oral argument, the Court took under advisement the Trustee’s Motion to Compel Turnover of Funds. The Chapter 7 Trustee, Linda S. Parks (“Trustee”), appeared by Scott Hill of Hite, Fanning, & Honeyman, L.L.P. Debtors, Robert and Kimberly Blagg (“Debtors”) appeared in person and by James P....
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OPINION The chapter 7 trustee, Jeoffrey L. Burtch, in his amended complaint, asserts three alternate claims against defendants Pincus, Verlin, Hahn & Reich, P.C.; Pincus, Reich, Hahn, Dubroff & Ganz, P.C.; and Pincus, Verlin, Bluestein, Hahn & Reich, P.C. (hereinafter “Pincus”). In essence, the trustee demands judgment in the amount of funds misappropriated by Jonathan Ganz, wh...
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UNDER ADVISEMENT DECISION TRUSTEE’S MOTION TO COMPEL TURNOVER Trustee Lawrence J. Warfield seeks turnover of Debtor Helen Builder’s 2005 federal tax refund of $2,725. Debtor, who is appearing pro se with respect to this motion, claims the tax refund consists en *11 tirely of an Earned Income Credit (“EIC”) that should be exempt under Arizona law as welfare assistance. In support of her posi...
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OPINION The principal question presented is whether a homeowner who sells his home while facing foreclosure may cancel that sale long after the fact, because the sale *552 contract omitted one of two notices of the right to cancel required under section 1695.5 of the California Home Equity Sales Contracts Act. Because the sale contract failed to provide notice of the righ...
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MEMORANDUM OPINION 1 Before the Court is the Motion of the United States Department of Education (the “DOE”) seeking summary judgment in its favor on the Complaint filed against it by Gabriel G. Atamian, MD, MSEE, JD (the “Debtor”). For the reasons discussed below, the Court will grant the Motion. I.BACKGROUND In 1986, 1988, and 1989, the Debtor executed promi...
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MEMORANDUM OPINION 1 Before the Court is the Motion for summary judgment of Arlin M. Adams, chapter 11 Trustee (the “Trustee”), seeking disallowance of the claim of Stefania Esk-ridge (“Eskridge”). For the reasons dis *382 cussed below, the Court will grant the Motion and disallow the claim. I. BACKGROUND On August 8, 2000, Coram Healthcare Co...
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ORDER GRANTING MOTION TO DISMISS UNDER 11 U.S.C. § 707(b)(3) This matter is before the Court on the United States Trustee’s (“UST”) motion to dismiss pursuant to 11 U.S.C. § 707(b)(3) (Doc. 26), the Debtor’s response (Doc. 29), the UST’s pre-hearing statement and supplemental memorandum (Doc. 37, 40), and the Debtor’s supplemental response (Doc. 38). Also before the Court is the Debtor’s ...
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OPINION I. Introduction. Eugene C. Buzzeo (“Eugene” or “Buz-zeo”) and Janet N. Buzzeo (“Janet”) or (Eugene and Janet collectively, the “Debtors”) filed a voluntary Petition under Chapter 11 of the Bankruptcy Code on December 5, 2005 (the “Filing Date”). Before the Court is a Motion for Summary Judgment on Count I of a Complaint filed by Geoffrey Todd Hodges, as Trust...
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MEMORANDUM OPINION Robert Shearer, the Chapter 7 Trustee for the bankruptcy estate of Emergency Monitoring Technologies, Inc., the instant debtor (hereafter respectively “the Trustee” and “the Debtor”), commenced the instant adversary proceeding so as to avoid as preferential and/or fraudulent several transfers (or alleged transfers) that occurred between the Debtor and Steve Tepsic, ...
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ORDER DENYING MOTION TO VACATE FINAL DECREE AND DEEMING SURPLUS PROCEEDS GENERATED FROM FORECLOSURE SALE TO CONSTITUTE PROPERTY OF THE DEBTORS THIS CAUSE came on to be heard on April 24, 2007, upon the Motion to Vacate Final Decree, filed by John A. Moffa, Esq., of the law firm of Moffa & Bonacquisti, P. A., ostensibly as counsel for John P. Bar-bee (“now-discharged trustee”). Mr. Bar...
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*632 MEMORANDUM OPINION THIS CASE was before the court on April 24, 2007, on two motions to approve reaffirmation agreements. Debtors’ counsel was not present. The court reminds counsel that once he makes an appearance in a bankruptcy case, he has made an appearance for all matters in that bankruptcy case and must appear with respect to them unless otherwise excused by the court. Reaffirm...
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ORDER GRANTING MOTION FOR RELIEF FROM STAY This matter comes before the Court on Movant’s Amended Motion for Relief from Automatic Stay (docket #44) [the “Motion”]. The Court held a final hearing on the Motion on March 30, 2007. The Chapter 13 Trustee did not respond to the Motion and did not participate in the hearing. The Movant, U.S. Bank National Association, as Trustee, alleges that ...
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*116 MEMORANDUM DECISION AND ORDER ON MOTION OF DEFENDANT, GUNNALLEN FINANCIAL, INC. TO STAY ADVERSARY PROCEEDING AND COMPEL ARBITRATION This matter came before the Court for hearing (the “Hearing”), on the Motion of Defendant, GunnAllen Financial, Inc. (“GunnAllen”) to stay this adversary proceeding and to compel arbitration [docket # 10-12] (the “Motion”) to which the Plaintiff...
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MEMORANDUM DECISION AND ORDER ON MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT [# 9-11] AND CROSS MOTION OF DEFENDANT SEEKING: (I) DENIAL OF SUMMARY JUDGMENT; (II) DISMISSAL OF ALL CLAIMS AGAINST DEFENDANT; AND (III) COMPELLING ARBITRATION OF ANY REMAINING ISSUES IF ANY (# 15-18) This matter came before the Court for hearing (the “Hearing”), on the Motion of Plaintiff, Richard L. Stern as Chap...
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ORDER GRANTING MOTION TO DISMISS This matter comes on for the Court’s consideration of Defendants [sic] Bank of New York Bank, N.A.’s Motion to Dismiss Plaintiffs Action with Prejudice Entitled “Adversarial Complaint and Request for Injunction Pursuant to Rule 7065” (docket # 13) [“Defendant’s Motion to Dismiss”] and Plaintiffs Response to “Defendant’s Moti...
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ORDER DENYING SUMMARY JUDGMENT The above entitled matter came before the Court on March 12, 2007 on the United States Trustee’s motion for summary judgment denying the defendant-debtor her discharge under 11 U.S.C. §§ 727(a)(2), (a)(3), (a)(4), (a)(5) and (a)(7). Appearances are noted on the record. Based upon the pleadings, files, and arguments of counsel, the Court being fully advised i...
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ORDER There is an oft-quoted saying, ostensibly an ancient curse, which bestows upon the recipient the desire that they might “live in interesting times.” 1 Certainly this notion fairly represents bankruptcy jurisprudence in the wake of the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, perhaps the most sweeping modification of American bank...
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MEMORANDUM AND INTERIM ORDER ON MOTION FOR PRELIMINARY INJUNCTION BACKGROUND On May 20, 2002, Britestarr Homes, Inc. commenced this chapter 11 case. On June 29, 2004, the court confirmed the debtor’s Second Amended Plan of Reorganization. The plan provides, among other things, for the transfer of Oak Point Property, a “certain 28-acre parcel of land located in Hunts Point, Bronx New ...
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MEMORANDUM OPINION On March 25, 2005, involuntary petitions for relief under the provisions of Chapter 7 of the United States Bankruptcy Code were filed against Tommy F. Robinson (Tommy Robinson) in Case No. 2:05-bk-13915 and his wife, Carolyn B. Robinson (Carolyn Robinson), in Case No. 2:05-bk-13916. The cases were combined for a contested trial held on September 28, 2005. At the con...
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MEMORANDUM OF DECISION ON LIABILITY ONLY I.Introduction Joseph Braunstein, Chapter 7 Trustee (the “Trustee”) of Coldwave Systems, LLC (the “Debtor”) brought this multi-count adversary proceeding against Gateway Management Services Limited (“Gateway”) to avoid a security interest which Gateway claimed in a certain patent (the “Patent”). The Trustee moved to stay so much of the com...
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MEMORANDUM OPINION AND ORDER The plaintiff Roy Lubit, M.D. (“Lubit”) commenced this adversary proceeding against the debtor John T. Chase (“Chase” or the “Debtor”) seeking a determination of the dischargeability of a debt under § 523(a)(2)(A) or § 523(a)(2)(C)(I) of the Bankruptcy Code for fees for forensic psychiatric consultation and expert witness services performed during the Debtor’s...
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MEMORANDUM OPINION AND ORDER The plaintiff Michael R. Varble, Esq. (“Varble”) commenced this adversary proceeding against the debtor John T. Chase (“Chase” or the “Debtor”) seeking a determination of the dischargeability of a debt under § 523(a)(2)(A) or § 523(a)(2)(C)© of the Bankruptcy Code for legal fees for services performed during the Debtor’s state court divorce and child custody p...
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368 B.R. 543 (2007) In re GENERAL ELECTRODYNAMICS CORPORATION, Debtor. No. 06-40208-DML-11. United States Bankruptcy Court, N.D. Texas, Fort Worth Division. May 9, 2007. *544 *545 *546 J. Robert Forshey, Forshey & Prostok, LLP, Fort Worth, TX, Dabney Bassel, Bassel & Wilcox, PLLC, Fort Worth, TX, for Debtor. Michael A. McConnell, Kelly Hart & Hallman LLP, Fort Worth, TX, Dub Stocker, ...
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RULING ON MOTION FOR LEAVE TO AMEND INFORMAL PROOF OF CLAIM I. ISSUE At issue in this proceeding is the sufficiency of a creditor’s asserted timely filed informal proof of claim so that it may be amended by an otherwise untimely formal proof of claim. The matter has been submitted solely on the court’s records and the parties’ extensive and thoughtful mem-oranda of law. ...
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OPINION After trial, the bankruptcy court entered judgment denying debtor Kimberly Hansen’s discharge under § 727(a) 2 . She timely moved for reconsideration, which the bankruptcy court denied. Thereafter, the bankruptcy court awarded the adversary plaintiffs $97,678.72 in attorneys’ fees *873 as a sanction under FRCP 37, applicable via Rule 7037. Debtor timely app...
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MEMORANDUM DECISION GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND DENYING MOTION FOR SANCTIONS The plaintiff commenced this adversary proceeding primarily to recover severance benefits from the reorganized debtor and certain individuals, based on claims sounding in contract and tort. The defendants Penthouse Media Group, Inc. (“Penthouse”), Marc Bell and Daniel Staton (collec...
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MEMORANDUM OPINION ON THE TRUSTEE’S AMENDED OBJECTION TO HOMESTEAD AND PERSONAL PROPERTY EXEMPTIONS UNDER 11 U.S.C. § 522(o) AND THE TEXAN PROPERTY CODE I. INTRODUCTION For many years, pre-petition planning to enhance exemptions was considered appropriate. Indeed, the legislative history of the Bankruptcy Code encouraged such planning: As under current law, the debtor will b...
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MEMORANDUM OPINION 1 The matter before the Court involves Debtors’ Supplemental Objection to the Claim of Gungor M. Solmaz and Diane M. Solmaz (the “Objection”) (D.I.2180), wherein Debtors object to the claim of Gungor M. Solmaz and Diana M. Solmaz (the “Claimants”) and propose to reduce such claim (the “Claim”) pursuant to Section 502(b)(6) 2 of the Bankruptcy C...
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ORDER THIS MATTER comes before the Court on the challenge by the Debtors, Richard and Jennifer Sweet (collectively the “Debtors”) to the proof of claim filed by Joseph Pollack (“Pollack”). The Court has reviewed the testimony, the arguments of counsel and the legal authority cited by each party and makes the following findings of fact and conclusions of law. JURISDICTION The Cou...
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ORDER THIS MATTER comes before the Court on the Debtor’s Motion for Relief from the Requirements of 11 U.S.C. § 333 that a Patient Care Ombudsman be Appointed (the “Motion”). The Court has reviewed the pleadings, the testimony, and the relevant legal authority and makes the following findings of fact and conclusions of law. JURISDICTION The Court has jurisdiction in this matter pursuant to ...
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MEMORANDUM OPINION Several motions filed by David E. Stacy (“Stacy”) are before the Court: (1) “Motion to Seal the Court’s File in All Matters,” (2) “Motion to Conduct Hearings in Camera,” (3) “David E. Stacy’s Motion to Reconsider Order Disallowing Claim and to Allow Claim” and his amended version of the same, and (4) “Creditor David E. Stacy’s Motion to Convert Chapter 13 Proceeding...
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MEMORANDUM OF OPINION Introduction Granite Broadcasting Corporation and five of its wholly-owned subsidiaries (collectively, the “Debtors”) filed for bankruptcy protection under chapter 11 of the Bankruptcy Code on December 11, 2006 (the “Petition Date”). 1 The Debtors have moved for confirmation of their Modified First Amended Joint Plan of Reorganization, dated April...
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ORDER Before the Court is the Trustee’s Motion For Summary Judgment filed on March 27, 2007, and the Debtor’s Response to Trustee’s Motion For Summary Judgment and Request For Partial Judgment and Opportunity to Amend Schedules B & C filed on April 13, 2007. The debtors lived *471 in Iowa from August 2000 until March 2006, at which time they moved to Arkansas. They filed thei...
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DECISION AND ORDER This cause comes before the Court after a hearing on the Motion of the United States Trustee to Dismiss Case pursuant to 11 U.S.C. § 707(b)(2) and (b)(3). At the Hearing, the United States Trustee, based upon subsequent information provided by the Debtors, limited the scope of its Motion to Dismiss to those grounds provided in § 707(b)(3). Upon the conclusion of the Hearing...
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MEMORANDUM OPINION AND ORDER Before the Court is the trustee’s Objection to Confirmation of Initial Plan filed on January 19, 2007. The debtor, Craig M. Frederickson, filed his chapter 13 voluntary petition and proposed plan on December 13, 2006. In his plan, the debtor proposed to pay $600.00 per month for a period of 48 months, with the unsecured creditors receiving a pro rata distribut...
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MEMORANDUM DECISION ON TRUSTEE’S MOTION TO SURCHARGE DEBTORS’ EXEMPT PROPERTY A trustee may equitably surcharge a debtor’s statutory exemptions when the debtor has failed to schedule and turn over estate assets. A homestead exempt under Florida’s constitutional exemption, however, may not be so surcharged unless the estate assets can be traced into the acquisition of an interest in th...
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DECISION AND ORDER At Roanoke in said District this 11th day of May 2007: The matter before the court is the Debt- or’s Motion to Impose the Automatic Stay pursuant to 11 U.S.C. § 362(c)(4). The court conducted a hearing on the Motion in Roanoke on October 18, 2006. At that time, the court took the matter under advisement and requested that the Debtor submit a memorandum of authorities in sup...
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DECISION AND ORDER At Harrisonburg in said District this 29th day of March 2007: The matter before the court for decision arises as a result of a complaint filed by the United States Trustee seeking to deny the discharge of Phyllis A. Arnold (herein “the Debtor”) pursuant to 11 U.S.C. §§ 727(a)(2), (a)(4), and (a)(6). The court conducted the trial in this matter in Harri-sonburg on J...
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*385 ORDER For the reasons set forth in an Opinion entered this day, IT IS HEREBY ORDERED that Plaintiffs Motion for Summary Judgment be and is hereby granted in part and denied in part. This Court finds that the Debtors transferred $2,818.87 to the Defendant within the 90 days prior to their bankruptcy filing and while they were insolvent. Further, this Court finds that the...
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Pro se appellant Abraham Rasparían, Jr. (“Rasparían”) appeals the order en *69 tered on August 22, 2006, dismissing his complaint objecting to the Debtor’s discharge. The bankruptcy court granted the Debtor’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below, the bankruptcy court’s decision dismissi...
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MEMORANDUM DECISION DENYING DEBTOR’S MOTION TO AVOID LIEN PURSUANT TO 11 U.S.C. § 522(f) In this reopened Chapter 7 case, the Debtor seeks to avoid a judicial lien held by Ulster Federal Credit Union (hereafter, “UFCU”). The Debtor voluntarily repaid the judicial lien when she refinanced her home in May 2005. The Debtor now seeks to use 11 U.S.C. § 522(f) to “avoid” the rep...
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MEMORANDUM DECISION ON DEBTOR’S OBJECTION TO PROOF OF CLAIM NO. 6 OF BRANDON GUYTON Brandon Guyton, the debtor’s former landlord, filed a proof of claim on March 6, 2007, in the total amount of $2,085.00, with $695.00 as unsecured nonpriority and $1,390.00 as priority. The debtor objected to the claim on March 9, 2007, asserting the claim was not entitled to priority and the amount was overstat...
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FEDERMAN, Bankruptcy Judge. Debtor Craig Edward Groat appeals from the Bankruptcy Court’s 1 Judgment finding against him, and in favor of creditor Donald R. Carlson, in Groat’s adversary action based on Carlson’s alleged violations of the Truth in Lending Act (“TILA”). For the reasons that follow, we affirm. FACTUAL BACKGROUND On September 5, 2002, Groat borrowed $22,5...
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MEMORANDUM OPINION This matter comes before the court on the Chapter 7 Trustee’s (Trustee) motion for turnover of proceeds from a pre-petition sale of Debtors’ homestead. The parties submitted pre-hearing briefs. After a scheduled hearing, at which there were no appearances, the matter was taken under advisement. Based upon the court’s findings and conclusions which follow, the trustee’s motion...
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*159 OPINION 1 This matter is before the Court on the Motion of the chapter 7 Trustee of Atlantic Gulf Communities Corporation (the “Debt- or”) to approve the termination of an escrow account established for the protection of New York consumers and the turnover of the remaining escrow funds to the estate. The Motion is opposed by the New York State Department of St...
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OPINION Colleen Olson (“Trustee”) commenced this adversary proceeding to compel Donald M. Bays to “disgorge” a retainer paid to him in connection with: (a) his pre-petition representation of Seek Wilderness; and (b) his subsequent representation of the Chapter 11 bankruptcy estate created after Seek Wilderness filed its petition for relief. Trustee is requesting that she be granted summary ju...
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*342 MEMORANDUM OF OPINION AND ORDER Before this Court are cross motions for summary judgment with respect to the dischargeability of a debt pursuant to 11 U.S.C. §§ 523(a)(2)(A), (4) and (6) filed by The Estate of Lola Brewer and Mary C. Barron (“Plaintiffs”) against Anthony Litchford Jones (the “Defendant” or the “Debtor”), and by the Debtor. This Court has core matter juri...
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MEMORANDUM-DECISION AND ORDER In a prior Memorandum-Decision and Order, entered May 16, 2006, the court found Paul S. Hudson (“Hudson”) to be a prevailing party and, thus, entitled to recover attorney’s fees pursuant to 26 U.S.C. § 7430 from the Internal Revenue Service (“IRS”) in connection with his claim objection, despite Hudson’s status as a pro se attorney litigant. In re ...
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ORDER Donna Renee Edwards (“Debtor”) originally commenced this case by filing a chapter 13 petition on March 17, 2006. Along with her chapter 13 petition, Debtor filed a Chapter 13 Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income (“Official Form B22C”). Official Form B22C reflects an income that is below the applicable median family income for Deb...
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OPINION REGARDING LIMITED OBJECTION OF THE BAUPOST GROUP AND ABRAMS CAPITAL TO APPROVAL OF AMENDED SCHEDULE S TO PLAN SUPPLEMENT Commencing on December 2, 2001 (the “Petition Date”), and from time to time continuing thereafter, Enron Corp. (“Enron”) and its affiliates, (collectively, and together with Enron, the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 ...
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MEMORANDUM OPINION The United States Trustee has moved to dismiss the debtor’s petition pursuant to 11 U.S.C. § 707(b). This motion presents two issues: 1) the propriety of claiming an unborn child as an additional household member on the means test form, Form B22A, and 2) the debtor’s ability to claim the $471 transportation ownership cost for her unencumbered vehicle. *292 This memorandum...
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The Massachusetts Department of Revenue (“MDOR”) appeals from the bankruptcy court’s June 7, 2006, orders: (1) granting the Debtors’ Motion to Reopen Case For Purpose of Invoking the Automatic Stay and Granting Debtors Leave to File *52 Adversary Proceeding (“Order Reopening Case”), and (2) granting the Debtors’ Motion to Invoke the Automatic Stay and Granting Debtors Leave to File...
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DECISION AND ORDER The trustee in this chapter 13 case previously asked the court to issue an order requiring Midland Mortgage to accept payments under the debtors’ confirmed plan and to determine the amount of the monthly payment due that creditor. The request was denied by the court’s order of April 11, 2007, and the trustee has asked the court to reconsider its order. It is that motion whi...
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MEMORANDUM OPINION DETERMINING DEBT DISCHARGEABLE Leach Construction, Inc., the plaintiff (“Leach”), contends that an alleged debt due to it by the debtor, John J. Murphy, Sr., is not dischargeable under Section 523(a)(2)(A) of the Bankruptcy Code. 1 Leach is a commercial construction company based in Ohio. Leach signed three construction contracts with Southern Apartment Specialists, Inc. ...
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*681 MEMORANDUM OPINION OVERRULING OBJECTION BY FORD MOTOR CREDIT COMPANY TO PLAN This case came on for hearing on May 8, 2007, to consider the confirmation of the debtor’s Second Amended Chapter 13 Plan (Doc. No. 45) and the Objection by Ford Motor Credit Company to the Plan (Doc. No. 20). In the debtor’s Chapter 13 plan (Doc. No. 45), he seeks to surrender a car encumbered by a lien to Fo...
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MEMORANDUM Hearing was held in Omaha, Nebraska, on May 14, 2007, on the First Amended Chapter 11 Plan filed by Debtors (Fil.# 62), and an Objection to Confirmation of Plan filed by the U.S. Trustee (Fil.# 69). David G. Hicks appeared for Debtors, Jerry L. Jensen appeared for the U.S. Trustee, and Frank M. Schepers appeared on behalf of United Joint Venture, et al. This memorandum cont...
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ORDER DENYING DEBTOR’S MOTION FOR EXTENSION OF TIME UNDER 11 U.S.C. § 362(d)(3) This Chapter 11 case came on before the Court on March 26, 2007, for hearing on the Debtor’s motion for an extension of time under 11 U.S.C. § 362(d)(3). The Debtor appeared by its attorneys, James L. Baillie and Ryan T. Murphy. Fannie Mae, a secured creditor, appeared by its attorney, Dennis M. Ryan. The City...
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MEMORANDUM OPINION Richard McBrier, d/b/a Richard McBrier Contractor (“McBrier”) sued debtor Lea-tha Mae McDaniel (“McDaniel”), alleging that debtor’s $10,811.11 debt to McBrier is not dischargeable under 11 U.S.C. § 523(a)(2) and (6). This opinion explains why the debt is not excepted from discharge. *517FACTS1 Plaintiffs dischargeability complaint is based on an unsatisfied state court judgment...
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The plaintiffs appeal from an order of the bankruptcy court granting summary judgment to one of the defendants in this pending adversary proceeding. Because we conclude that the notice of appeal was filed both too late and too early, we dismiss the appeal for lack of jurisdiction. BACKGROUND The debtors commenced a chapter 7 case in 2006. In January of 2007, they received their discharge and ...
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MEMORANDUM OPINION A hearing was held on March 9, 2007, on the application of Tommy Andrews, Jr., P.C., for approval and payment of supplemental compensation as attorney for the debtor in the amount of $13,351.20. The debtor, who filed a written opposition to the application, was present in person. The chapter 13 trustee, who filed a response stating that the plan did not have sufficient ...
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369 B.R. 564 (2007) In re Leticia I. ACAYA, Debtor. No. 06-51741-MM. United States Bankruptcy Court, N.D. California. May 18, 2007. *565 Rodney M. Kleman, Law Offices of Rodney M. Kleman, Monterey, CA, for Debtor. Devin Derham-Burk, Chapter 13 Trustee, San Jose, CA. OPINION AND ORDER ON OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN MARILYN MORGAN, Bankruptcy Judge. INTRODUCTION Wells Fargo Finan...
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DECISION & ORDER BACKGROUND On April 25, 2005, Thomas Otis Bosket (aka Thomas O. Bosket, aka Thomas Bosk-et, aka Tom Bosket) (the “Debtor”) filed a petition initiating a Chapter 7 case and Peter Scribner, Esq. (the “Trustee”) was appointed as his Chapter 7 Trustee. *107 On June 27, 2005, the Trustee conducted a Section 341 Meeting of Creditors at which an attorney f...
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OPINION 1 Introduction Before the Court is the Debtors’ Precautionary Motion For Order Approving Modification To Ordinary Course Bonus Compensation Program For Employees [Docket No. 1222], Through the motion, the Debtors seek the Court’s approval to modify the Debtors’ “ordinary course employee bonus compensation program” for the calendar year 2006 (the “2006 OCP”). ...
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MEMORANDUM DECISION Before the Court are several matters all related to one central issue: Whether the above-plaintiff, Coleen Rupp, and interve-nor, Donna England, are entitled to receive $50,000 from the net proceeds of the sale of the Debtor’s real property, representing the Debtor’s homestead exemption, which funds are currently being held by the Chapter 7 Trustee pending further ...
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ORDER DENYING DEFENDANT’S MOTION TO DISMISS AND ALTERNATIVE MOTION FOR SUMMARY JUDGMENT The matters before the court are several motions of the defendant, Smithfield Packing Company, Inc. (“Smithfield”). Smith-field moves to dismiss, under Rule 12(b)(6) of the Federal Rules of Civil Procedure (made applicable to this adversary proceeding by Rule 7012(b) of the Federal Rules of Bankruptcy ...
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ORDER The matters before the court are the motions for summary judgment filed by MEMO Money Order Company (“MEMO”), Russell and Teresa Davis, and Joseph Callaway, as the Chapter 7 trustee of the estate of Davis’ IGA, Inc. (“Davis IGA”). On April 16, 2007, the court conducted a hearing on these matters in Raleigh, North Carolina. UNDISPUTED FACTS 1.MEMO is a Pennsylvania ...
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MEMORANDUM DECISION REGARDING THE TRUSTEE’S MOTION FOR SUMMARY JUDGMENT AND FUJITSU’S CROSS-MOTION FOR SUMMARY JUDGMENT Wendell W. Webster is the trustee in the case under chapter 7 of the Bankruptcy Code, 11 U.S.C. § 101 et seq., of the debtor NETtel Corporation, Inc. (“NET-tel”). He initiated this adversary proceeding to avoid and recover two transfers made by NETtel to D...
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OPINION I. Introduction Lockwood Auto Group, Inc. (“Lockwood Auto” or “Debtor”) filed a voluntary Petition under Chapter 11 of the Bankruptcy Code on October 3, 2005 (“Filing Date”). By Stipulation and Consent Order entered on the docket on December 14, 2005, the Court directed the appointment of a Chapter 11 Trustee. Richard W. Roeder, Esq. was appointed as Chapter 11 Trustee and, after investi...
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*653 OPINION Introduction Lockwood Auto Group, Inc. (“Lockwood Auto” or “Debtor”) filed a voluntary Petition under Chapter 11 of the Bankruptcy Code on October 3, 2005 (“Filing Date”). By Stipulation and Consent Order entered on the docket on December 14, 2005, the Court directed the appointment of a Chapter 11 Trustee. Richard W. Roeder, Esq. was appointed as Chapter 11 Trustee and, after inv...
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DECISION ON DETERMINATION OF PURCHASE PRICE TO BE PAID BY THE MECKLENBURG-IRE-DELL CONSORTIUM FOR THE PORTION OF THE DEBTORS’ CABLE SYSTEMS THAT SERVES THE CONSORTIUM COMMUNITIES In this contested matter in the jointly administered cases of Adelphia Communications Corporation and its subsidiaries (the “Debtors”), the Court has before it the determination of the purchase price to be paid b...
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DECISION & ORDER BACKGROUND On November 9, 2006, this Court issued *33 a Decision & Order 1 (the “Nersinger Judgment”) that allowed the Debtor a $30,961.09 homestead exemption. Based upon the various pleadings filed and oral arguments made, the Court decided the Trustee’s October 6, 2006 Exemption Motion with the understanding that its decision was to be m...
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OPINION CONCERNING PLAINTIFF ENRON POWER MARKETING, INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND CONCERNING PUBLIC UTILITY DISTRICT NO. 1 OF SNOHOMISH COUNTY’S CROSS-MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT This adversary proceeding primarily concerns state law claims arising from an agreement, subject to the filed-rate doctrine, for the purchase or sale of wholesa...
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MEMORANDUM OF DECISION The debtors’ motion to avoid a judicial lien against their home is before me on a stipulated record. The lienor’s objection presents a novel issue: whether a prepayment penalty secured by a mortgage on the Debtors’ homestead should be considered when determining the amount of “all other liens on the property” for the purposes of § 522(f)(2)(A)(ii). Because I con...
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MEMORANDUM DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT Yash Raj Films (USA), Inc. (“Yash Raj”), the plaintiff in this adversary proceeding (the “Adversary Proceeding”), moves for summary judgment (the “Summary Judgment Motion”) on its complaint (the “Complaint”) against Naseem Akhtar, the debtor in this Chapter 7 ease (the “Debtor”). Yash Raj seeks a determination that the debt arising...
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369 B.R. 25 (2007) In re Timothy Joseph MULLEN and Amie Marie Mullen, Debtors. No. 06-33607-RLD13. United States Bankruptcy Court, D. Oregon. May 14, 2007. *26 *27 Rex K. Daines, Salem, OR, for Debtors. MEMORANDUM OPINION RANDALL L. DUNN, Bankruptcy Judge. Debtors, Timothy Joseph Mullen and Amie Marie Mullen ("the Mullens"), filed their voluntary petition for relief under chapter 13 of the Bankr...
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Opinion Regarding the Appointment of a Fee Examiner This matter is before the Court on the Court’s own initiative regarding the appointment of a fee examiner, as well as the U.S. Trustee’s motion to appoint an examiner under 11 U.S.C. § 1104. The procedural history that led to the Court’s con *624 sideration of these matters is as follows. Third Avenue Trust, the largest ...
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MEMORANDUM OPINION CONCERNING DEBTOR’S MOTION TO MODIFY PLAN Debtor seeks to modify her chapter 13 plan to change the classification and the treatment of the claim of Origen Financial, LLC (“Origen”). Origen’s claim is secured by Debtor’s residence, a manufactured home. Debtor contends that the modification is clerical in nature, moving Origen’s claim from paragraph 4 to paragraph 8 of the pl...
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ORDER Before the Court is the Complaint to Determine Validity, Priority, and Extent of Lien, to Obtain Declaratory Relief, and *906to Obtain Relief From the Automatic Stay [the Complaint] filed by the plaintiff, H. Collins Haynes [Haynes]. The debtors filed an Answer and Objection to Claim [the Answer], Trial was held on October 24, 2006. The parties appeared personally and through their attorney...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON OBJECTIONS TO CLAIMS This proceeding relates to the Chapter 7 bankruptcy case filed by Jeffrey M. Karp (“Debtor”). Chapter 7 Trustee David P. Leibowitz (“Trustee”) filed an Objection to Claim No. 3 filed by Sherry Karp (“Sherry”) and an Objection to Claim No. 4 filed by Marlene Katz (“Katz”). The basis for the claims filed by Sherry and Katz ...
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MEMORANDUM OPINION ON MOTION TO MODIFY AUTOMATIC STAY This proceeding relates to the Chapter 13 bankruptcy case filed by Gregory and Narvel Robson (“Debtors”). Ford Motor Credit Company (“Ford”) moved to modify stay with respect to a debt secured by a lien on a 2001 Ford Windstar motor vehicle and a 2002 Ford Escape motor vehicle (the “Vehicles”). It asserted that Debtors were not providing F...
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OPINION In this Chapter 7 bankruptcy case, defendant-debtor Jay Busch (“Debtor”) appeals an order of the United States Bankruptcy Court for the District of Utah denying in part his motion for relief from judgment under Federal Rules of Bankruptcy Procedure 7052 and 9024. The main underlying issue in this adversary proceeding brought by Cindy Busch Hancock, Debtor’s former wife (“Ex-Wife”), is the...
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ORDER GRANTING OBJECTION TO CONFIRMATION This matter is before the Court on the Debtors’ amended plan (Doc. 28), Green Tree Servicing, LLC’s objection to confirmation (Doc. 18), the Chapter 13 Trustee’s memorandum (Doc. 47), the Debtors’ mem-oranda (Docs. 49, 52) and Green Tree’s memorandum (Doc. 53). A hearing was held on April 12, 2007. The issue before the Court is whether, pursuant to the...
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MEMORANDUM OF OPINION In this action, the chapter 11 creditors’ trustee seeks to recover funds from multiple defendants following confirmation of the debtors’ plan of reorganization. 1 Two sets of defendants bring separate motions to dismiss. 2 For the reasons stated below, both motions are denied, and the plaintiff is ordered to amend count I of the complaint to...
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OPINION The issue before the Court is whether proceeds the Debtor received from a workers’ compensation settlement, which are exempt under § 305/21 of the Illinois Workers’ Compensation Act (the “Act”), retained their exempt status when they were used to pay off a lien on an automobile, thereby allowing the Debtor to claim the automobile exempt under the Act. For the reasons set forth below, th...
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OPINION This appeal arises from the bankruptcy court’s order granting Debtor-Appellee’s motion to dismiss his chapter 13 case. 2 For the reasons set forth below we REVERSE the bankruptcy court’s order granting Debtor-Appellee’s motion to dismiss. I. FACTS Appellee filed a voluntary chapter 7 petition on March 12, 2006. He scheduled a single parcel of real property, hi...
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MEMORANDUM OF DECISION RE MOTION FOR POST-PETITION ATTORNEYS’ FEES Defendant Burlingame Capital Partners II, L.P. (“Burlingame”) seeks an award of post-petition attorneys’ fees pursuant to its various contracts with the above-captioned debtors as part of its undersecured claim against Qmect, Inc. (“Qmect”) and its general, unsecured claim against Fred and Linda Koelling (the “Koellings”)(...
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OPINION 1 This is a small business Chapter 11 wherein the Debtor moved under 11 U.S.C. § 365 to reject a contract to sell certain FCC licenses to Pegasus Broadband Communications LLC (hereinafter the “Pegasus Contract”). 2 The Respondents objected to the rejection of the Pegasus Contract on two grounds: first, that rejecting the contract was not within the provinces of the business judgemen...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Before the Court are two motions addressed to the Answer and Counterclaims (“Answer” or “Answer and Counterclaims”) filed by Patrick Bennett (“Bennett”) to the August 29, 1996 Amended Complaint (“Complaint”) filed herein by Richard C. Breeden, Trustee (“Trustee”) in the within adversary proceeding. The Answer, filed ...
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ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT Cross summary judgment motions have been filed by Ralph L. Elkins (“Elkins”) and the Internal Revenue Service (“IRS”). Elkins filed this adversary seeking a determination that his 2001 tax liability be declared dischargeable. This court has jurisdiction over this matter pursuant to 28 U.S.C. § 157(b)(2)(I) and 28 U.S.C. § 1334. For the reaso...
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OPINION DENYING MOTION TO STRIKE DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT This proceeding is before the Court on the Plaintiffs motion for summary judgment, and his motion to strike the Defendant-Debtor’s response to the motion. The Plaintiff appears by counsel Luke A. *655 Sobba and Karl R. S...
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MEMORANDUM OPINION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Vincent Schweitzer (‘Vincent”) initiated this adversary proceeding against Deborah Schweitzer, his former spouse and the debtor in this Chapter 7 case (“Deborah” or “Debtor”), seeking a judgment declaring that (1) Deborah’s obligation under the parties’ separation agreement to hold him harmless on their joint mortgage indeb...
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MEMORANDUM OPINION I. INTRODUCTION In the late 1990s, the U.S. economy appeared unstoppable. Unemployment and inflation were low, the growth rate was high, and the Internet revolutionized business. The summer of 2000 was the apogee of the technology boom. The stock market, especially the NASDAQ index, reached astronomical all-time highs in March 2000. The volume of IPOs soared. Compa...
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OPINION This matter has come before the Court on the Motion of the Debtor seeking a determination that “means testing” under 11 U.S.C. § 707(b) is not applicable to cases converted from chapter 13 to chapter 7. I. JURISDICTION The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334(a) and 157(a), and the Standing Order of the United States District Court for the Distri...
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MEMORANDUM OF DECISION REGARDING MOTION TO DISMISS PETITION I. Introduction The matter before the Court is the motion of Dartmouth Supply, Inc. (“Dartmouth”) to dismiss the petition of Mary G. Falcone (the “Debtor”) on the grounds that the Debtor failed to comply with 11 U.S.C. § 109(h)(3). Although the Debtor acknowledges that she did not comply with the statutory requirements, she asks th...
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ORDER This matter is before the Court upon the Motion of AGM, II, LLC and Lancelot Investor Fund, L.P. (“Defendants”) to dismiss the amended complaint filed by Michelle L. Vieira, as Chapter 7 Trustee (“Trustee”) for Worldwide Wholesale Lumber, Inc. (“Debtor”), pursuant to Fed. R.Civ.P. 12(b)(1) and (6). The Court makes the following Findings of Fact and Conclusions of Law pursuant to Federal Rul...
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OPINION GRANTING MOTION FOR SUMMARY JUDGMENT AND ADDRESSING MOTION FOR FINAL ENTRY OF JUDGMENT UNDER FED.R.CIV.P. 54(b) I. INTRODUCTION This adversary proceeding arises from the non-payment of money due under a promissory note issued by defendant Universal Music and Video Distribution Corporation (“Universal” or “Defendant”) to plaintiff RMM Records and Video Corporation (“RMM” or “P...
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*903 ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT THIS CASE presents a question of exemption law under 11 U.S.C. § 522(b)(3)(B) involving property owned by the Debtor and his non-debtor spouse mostly, but not entirely, in tenancy by the entireties form, with the complicating twist that the Defendants moved from New York to Florida a few months before the Debtor filed his voluntary chapter...
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ORDER DETERMINING STUDENT LOAN NON-DISCHARGEABLE THIS MATTER came before the Court for trial on January 31, 2007, on Tammy Russotto’s (the “Debtor”) Complaint to Determine the Dischargeability of Student Loan1 (the “Complaint”). The Court has examined the papers before it, taken testimony, listened to arguments, and is satisfied that it is appropriate to rule. I. Jurisdiction The Court has juris...
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*463 MEMORANDUM OPINION On April 18, 2007, the Court heard the Plaintiffs Com/plaint to Determine Dis-chargeability of Debt or Deny Discharge. Garland L. Watlington appeared on behalf of the Plaintiff, Paula Jean Douglas. Mike DeLoaehe appeared on behalf of Debtor-Defendant Tommy Norris Douglas. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). This Order s...
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OPINION GRANTING REORGANIZED DEBTORS’ OBJECTION TO PROOF OF CLAIM NO. 38365 AND MOTION FOR A DETERMINATION OF REFUND RIGHTS PURSUANT TO SECTION 505(a)(1) OF THE BANKRUPTCY CODE I.INTRODUCTION Before the Court is Proof of Claim No. 38365 (the “IRS Claim”), filed by the Internal Revenue Service (“IRS”) on behalf of the United States of America, the Reorganized Debtors’ Objection to Pro...
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ORDER GRANTING DEFENDANT’S MOTION FOR ABSTENTION Defendant, the United States (“Government”), has moved for the Court to abstain (Doc. 10) in this adversary proceeding to determine the dischargeability of the Plaintiff-Debtors’ potential tax liability under 11 U.S.C. §§ 523(a)(1), 507(a)(8), and 505. The issue is whether the Court should abstain from determining the dis-chargeability ...
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OPINION 1 Before the Court are the Motions of the MDC Defendants 2 , Winstead Sechrest & Minick, P.C. (‘Winstead”), and Robert J. Naples (“Naples”) for dismissal of the complaint filed against them by the trustee. For the reasons stated below, the Court will grant the Motions in part. I. BACKGROUND In 1997 and 1998, the Debtors 3 ...
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ORDER GRANTING MOTION FOR FEES AND COSTS On October 31, 2006, the Court entered a Memorandum Opinion and a Final Judgment finding that a 1982 income tax assessment is invalid on the basis of equitable estoppel, that Plaintiff is entitled to a return of all refunds retained by the Internal Revenue Service (“IRS”) and applied to the 1982 tax liability with interest, and that Plaintiff is entitled...
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Opinion Regarding Trustee’s Objection to Confirmation This matter is before the Court on the trustee’s objection to confirmation of the debtor’s proposed chapter 13 plan. This opinion supplements the Court’s bench decision confirming the plan but denying the debtor’s discharge pursuant to 11 U.S.C. § 1328(0(1). I. The debtor filed for chapter 7 relief on July 29, 2002. A chapter 7 dischar...
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OPINION This court is called upon to consider and enter as its order a draft form of Consent Order submitted by the Office of the United States Trustee and one particular respondent in a multi-respondent disciplinary proceeding initiated sua sponte in September 2005. See In re Rivera, 342 B.R. 435 (Bankr.D.N.J.2006). Following appeal, this aspect of the overall ...
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AMENDED ORDER The matter before the Court is an objection to confirmation by AmeriCredit Financial Services, Inc. (AmeriCredit) of a modified plan filed by Rita and Edward Belcher (Debtors). The matter was set for trial on the merits in Pine Bluff, Arkansas, on February 23, 2007, and the matter was taken under advisement. The parties submitted the matter to the Court based on stipulat...
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371 B.R. 311 (2007) In re J.S. II, L.L.C., et al., Debtors. No. 07 B 03856. United States Bankruptcy Court, N.D. Illinois, Eastern Division. May 30, 2007. *312 *313 *314 Steve Towbin, Matthew Swanson, Shaw Gussis Fishman Glantz Wolfson & Towbin L.L.C, Chicago, IL, for Debtor. Marc Beem, Edward W Feldman, Miller Shakman & Beem LLP, Chicago, IL, for Thomas Snitzer and the Snitzer Family, L....
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First International Bank & Trust appeals from the order of the bankruptcy court granting Trustee’s motion to compromise a preference action against Sten-erson Brothers Lumber Company. We reverse and remand for the following reasons. I. We are able to glean the following factual allegations underlying Trustee’s motion to compromise from our review of the record on appeal. Y-Knot Constr...
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FEDERMAN, VENTERS, and McDONALD, Bankruptcy Judges. Debtor Midwest Agri Development Corp. (MAD) was an investment holding company and the parent corporation of several subsidiaries, including Midwest Ag Services, Inc. (MASI). MAD was the sole shareholder of its subsidiaries. As the holding company, MAD took out loans on behalf of the subsidiaries, paid each of their major expenses, and billed t...
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ORDER This matter comes before the Court upon a Motion to Compel (the “Motion”) filed by First Federal Savings & Loan Association of Charleston (“First Federal”). The Motion seeks an order directing Debtor to surrender certain collateral, redeem the collateral, or reaffirm the debts owed to First Federal pursuant to 11 U.S.C. § 521(a)(2). 1 Debtor timely filed an Objection to t...
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MEMORANDUM OPINION In this case, the Court is asked to determine whether the “year-to-date” statement of income given by an employer to an employee constitutes “other evidence of payment received within 60 days before the date of the filing of the [bankruptcy] petition” for purposes of § 521 of the Bankruptcy Code. 1 On the facts of this case, the answer is yes. The following f...
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DECISION ON ORDERS (1) GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DOC. 28); (2) GRANTING DEFENDANT GUARANTY BANK’S MOTION FOR SUMMARY JUDGMENT (DOC. 25) AND (3) DENYING GREEN TREE SERVICING LLC’S MOTION FOR SUMMARY JUDGMENT (DOC. 29) Introduction This adversary proceeding concerns a dispute between two creditors, Green Tree Servicing, LLC (“Green Tree”) and Guaranty Bank S...
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The issue before us is whether a utility may terminate service to a Chapter 13 debtor for failure to pay for post-petition service without first obtaining relief from the automatic stay of 11 U.S.C. § 362. We conclude that a utility may terminate service, without obtaining relief from stay, based upon a Chapter 13 debtor’s failure to pay for post-petition service. Accordingly, for the reasons s...
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*435 MEMORANDUM DECISION I. INTRODUCTION The Debtor complied with the requirements of the Bankruptcy Code by timely filing her statement of intention and timely entering into a reaffirmation agreement with the credit union that holds a security interest in her car. That reaffirmation agreement will not, however, be approved because the Debtor’s net monthly income is less than her expenses...
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MEMORANDUM OPINION This is the Court’s decision on the Motion of George L. Miller, as Chapter 7 Trustee of the Estate of World Health Alternatives, Inc. for Preliminary Injunction and to Enforce Automatic Stay (“the Motion”) [D.I. 775]. The Chapter 7 Trustee, George L. Miller (“the Trustee”) requests that the Court enjoin the prosecution and approval of a settlement agreement in a sec...
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ORDER GRANTING MOTION TO DISMISS On May 2, 2007, the United States Trustee (the “UST”) filed a Motion to Dismiss Pursuant to 11 U.S.C. § 707(b) (the “Motion”) [Docket # 17] in the above-referenced bankruptcy case (the “Case”). On May 18, 2007, the chapter 7 trustee (the “Trustee”) filed a Response to the Motion [Docket # 31], in which the Trustee made no substantive argument in support of the...
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MEMORANDUM OPINION Following this Court’s denial of Howard J. Wunderlich’s (the “Debtor”) property exemptions claimed under New Hampshire law, the Debtor amended Schedule C to claim property exempt under New York law. Creditor James Moran filed an objection to which the Debtor filed a response. The Court took the matter under advisement at the close of a January 30, 2007, hearing. Jurisdic...
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MEMORANDUM OPINION NATURE OF CASE This adversary proceeding was commenced by the United States of America (Government) in the fall of 2005 and later *745 joined by the Chapter 7 Trustee Linda Parks’ (Trustee) intervention, against defendant-debtor Gary E. Krause who owes an income tax liability in excess of $3 million dollars. The Government seeks to have debtor’...
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OPINION AND ORDER The issue in this contested matter is whether the automatic stay, 11 U.S.C. § 362(a), applies to a state court foreclosure action where the property in question is titled solely in the name of the non-debtor spouse. On the facts presented here, I conclude that the automatic stay does apply. This opinion is published because there does not appear to be a published decision ...
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DECISION AND ORDER ON MOTIONS TO DISMISS Table of Contents Facts.31 I. Rule 12(b)(6) standards.33 II. Creditors’ Committee Claims.34 A. Fraudulent Transfer Claims (Claims 1-12 (Co-Borrowing Lenders) Claims 13-16 (Century-TCI Lenders) Claims 17-24 (Sabres Lenders HSBC, Fleet Key) Claims 25-28 (Bank of Nova Scotia) Claims 29-30 (CIBC) Claim 31 (Margin Lend...
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MEMORANDUM OPINION Automotive Professionals, Inc. (“API”) filed a petition under chapter 11 of the Bankruptcy Code. The State of Illinois filed a motion to dismiss API’s case based on five grounds: (i) API is ineligible for bankruptcy relief because it is a domestic insurance company; (ii) API’s officers lacked authority to file the bankruptcy petition because a state court appointed ...
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DECISION & ORDER BACKGROUND On May 19, 2006, Mark G. Burgholzer (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 he was indebted to LeChase Data/Telecom Services, LLC (“LeChase”) in the amount of $751,000.00, the amount due on a March 9, 2006 judgment (the “St...
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370 B.R. 104 (2007) In re Robert R. FOX, Debtor. Cash America Financial Services, Inc., Plaintiff-Appellant, v. Robert R. Fox, Defendant-Appellee. No. 06-8043. United States Bankruptcy Appellate Panel of the Sixth Circuit. Argued: February 7, 2007. Decided and Filed: June 13, 2007. *105 *106 *107 *108 ARGUED: John J. Rutter, Roetzel & Andress, Akron, Ohio, for Appellant. Richard G. Zellers, R...
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OPINION GRANTING REORGANIZED DEBTORS’ OBJECTION TO STANDARD BANK LONDON, LIMITED’S AMENDED PROOF OF CLAIM NO. 24626 The issues before the Court are (1) whether Standard Bank London, Limited (“Standard”) may amend its proof of claim (“Claim 13075”) against Enron North America Corp. (“ENA”) by an amended proof of claim (“Claim 24626”) to include a specific claim against Enron Corp. (“Enron”...
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OPINION I. INTRODUCTION This case came before the court for confirmation of the chapter 13 plan filed by Karen L. Jensen (“the Debtor”). The Debtor’s brother, James Froio (“James”) — a creditor who did not file a timely proof of claim — is the sole remaining objector to his sister’s plan. James asserts both good faith and feasibility objections to confirmation. At bottom,...
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OPINION This matter having come before the Court for trial on a Complaint objecting to the discharge of the Debtor, 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. Trial in this matter was held on ...
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MEMORANDUM OF DECISION Introduction Vinod George filed a Chapter 7 petition on June 12, 2003, thereby commencing the underlying bankruptcy case (“Debtor”) (“Petition Date”) (“Case”). On the Petition Date, he also filed the additionally required materials incident to the Case, including schedules of his property and debts and a statement of his financial affairs, and did so under oath (“Schedules...
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MEMORANDUM DECISION AND ORDER This matter is before the Court pursuant to a motion made by the Office of the United States Trustee (“U.S. Trustee”) seeking dismissal of Randy Colgate’s petition under 11 U.S.C. § 707(b)(1) and/or (3) (the “Motion”). Based on the facts of this case and the relevant case law interpreting § 707(b), the Court grants the Motion. The following constitute the Cou...
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MEMORANDUM DECISION REGARDING REQUESTS FOR FINAL COMPENSATION AND REIMBURSEMENT OF EXPENSES Three fee applicants seek final compensation in this chapter 7 case. They include (1) David L. Kittay, the chapter 7 Trustee, (2) Kittay & Gershfeld, P.C. (the “Kittay Firm”), the Trustee’s general counsel, and (3) Gusrae, Kaplan, Bruno & Nusbaum PLLC (“Special Arbitration Counsel”), the Trustee’s ...
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OPINION DENYING DEBTORS’ OBJECTION TO CLAIM Introduction This opinion addresses the application of § 502(b)(7) of the Bankruptcy Code to a *706proof of claim filed by a creditor, Ronald N. Silberstein. The Debtors assert that § 502(b)(7) applies and that a substantial portion of Silberstein’s claim must therefore be disallowed. Silberstein contends that § 502(b)(7) does not apply and that his...
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MEMORANDUM OPINION The Court held a trial on the above entitled adversary proceeding on February 14 and 15, 2007. This is a core proceeding under 28 U.S.C. § 157(b)(2) and deals with whether Richard Barnes (the “Debtor”) is entitled to a discharge under 11 U.S.C. § 727 and the dischargeability of the Debt- or’s indebtedness to the Plaintiff (the “Bank”) under 11 U.S.C. § 523(a)(4) and...
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MEMORANDUM OF DECISION Granting Key Employee’s Motion To Reopen Chapter 11 Case In this matter, the Court is presented with an issue of first impression in this District: Does this Court have jurisdiction to adjudicate a dispute that arose after a chapter 11 case was closed, where the dispute relates to an agreement approved by the Court, and that agreement, the plan, and the...
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MEMORANDUM OPINION Rivers Edge Condominium Homeowners Association (the “Plaintiff’) is a judgment creditor of the Debtor, Ann M. Cohen, (the “Defendant”). The Plaintiff was awarded a default judgment in a Massachusetts superior court for damages related to an unfulfilled roofing contract. The Plaintiff commenced this adversary proceeding for the purpose of obtaining a ruling excepting the deb...
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MEMORANDUM OPINION I. INTRODUCTION Janet Stickney (the “Debtor”) filed a voluntary petition under chapter 7 of the Bankruptcy Code 1 on March 30, 2007. Contemporaneously with the filing of her petition, the Debtor filed an application for waiver of the chapter 7 filing fee (Doc. No. 3) (the “Application”). On April 2, 2007, the Court entered an order granting the Appli...
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MEMORANDUM OPINION 1 The matter before the Court is Debtors’ Motion for Summary Judgment (“the Motion”) on their Objection to Claim No. 95 (“the Claim”) of Santa Clara County, California (“Santa Clara”) (Docket No. 602). Santa Clara filed the Claim consisting of property taxes and interest or penalties 2 and seeks priority tax treatment. Debtors seek reclassifica...
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Jackeline R. Garrido Pagan (“Garrido”) and Victor M. Isaac Andino appeal from the bankruptcy court’s August 24, 2006 order granting the Motion for Summary Judgment filed by Wilfredo Segarra Miranda, the Chapter 7 trustee (the “Trustee”) of the estate of Freddy V. Garrido Jimenez, (the “Debtor”). The issue presented is whether the Trustee is entitled to avoid the prepetition transfer of real est...
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DECISION ON ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Introduction Bankruptcy law authorizes a chapter 7 trustee to avoid a transfer made by a *156debtor and, thereafter, separately, authorizes a trustee to recover the transferred property, or the value of the transferred property, from the initial transferee or other related transferees. A trustee’s recovery from any such transferee is depe...
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MEMORANDUM OF DECISION This matter came before the Court for hearing upon the Motion of Lake Equipment Leasing, Inc. (hereinafter “Lake”) for Relief from Stay [Docket # 26] and the Opposition of Jeffrey M. Rowe (hereinafter “Debtor”) thereto [Docket #29]. At the conclusion of the hearing, the Court offered the parties the opportunity to submit supplemental briefs on the issue, both of...
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OPINION 1 {Nature of Proceeding: Motion to Reconsider Denial of Motion to Dismiss for Abuse Under § 707(b)(3)} The United States Trustee seeks reconsideration of this Court’s May 16, 2007 Order denying a Motion to Dismiss the Debtor’s case under 11 U.S.C. § 707(b)(3). 2 *859 The Motion alleges that the Court’s Opinion contained a manifest error of law by-failing to consider income of th...
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Opinion Introduction. The Plaintiffs (the Debtor and his wife) have filed suit against Decision One Mortgage Company (Decision), Mortgage Electronic Registration Systems, Inc. (MERS), Countrywide Home Loans, Inc. (Countrywide) and Mortgage Management Specialists (MMS). Their Complaint raises claims under federal and state consumer lending law. Decision and Countrywide/MERS ...
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DECISION ON TIA!SLV OBJECTIONS 1 AND 2 These claims Objections arise out of leveraged lease transactions involving aircraft. Claims have been filed by “owner participants” based on the obligations of debtor Delta Air Lines, Inc. (“Delta”) under tax indemnification agreements (“TIA”) to compensate for adverse tax consequences (“tax consequences”) resulting from premature lease terminat...
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MEMORANDUM DECISION DENYING CONFIRMATION The matter before the Court is confirmation of the Debtors’ proposed chapter 13 plan. The chapter 13 Trustee objected to confirmation arguing that the Debtors are not entitled to deduct monthly payments owing to a creditor secured by the Debtors’ boat in calculating their monthly disposable income. The Court determines that the Debtors are permitted to d...
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370 B.R. 346 (2007) In re Toby SCRIVNER and Angelique Pisano, Debtors. Toby Scrivner and Angelique Pisano, Appellants, v. John D. Mashburn, Trustee, Appellee. BAP No. 06-122. Bankruptcy No. 05-30226 — WV. United States Bankruptcy Appellate Panel of the Tenth Circuit. June 20, 2007. *347 *348 Submitted on the briefs:[*] Sam George Caporal and Mark W. Hayes, Oklahoma City, OK, for Appellants. John ...
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OPINION 1 Presently pending before the Court is the Standing Chapter 13 Trustee’s Objection to confirmation of William and Margaret Parke’s proposed Plan. The Parkes are above median Debtors with at least $1,428.00 a month in disposable income. 2 The Plan as proposed pays $340.00 for 60 months and provides for 100% of the unsecured debt listed on their schedules to...
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*443 MEMORANDUM OPINION AND ORDER This matter comes before me on the Motion for Contempt (“Motion”) filed by Clyde W. Royals, counsel for the Debtor (“Debtor’s Counsel”), against M. Elaina Massey, the chapter 13 trustee (“Trustee”). The Motion is a core proceeding under 28 U.S.C. § 157(b)(2)(A). The impetus for the Motion was a series of disbursement errors, acknowledged by ...
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MEMORANDUM OPINION AND ORDER DENYING IN PART, AND GRANTING IN PART, DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT THIS MATTER comes before the Court on the Debtor-Defendants’ Motion for Partial Summary Judgment filed on March 13, 2007 (Docket # 53), Creditor-Plaintiffs Response filed on April 12, 2007 (Docket # 64), and Defendants’ Reply filed on April *36620, 2007 (Docket # 67). The Court, hav...
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ORDER DENYING DEBTORS’ MOTION TO VACATE DISCHARGE This matter came before the Court for hearing on May 30, 2007 upon the Debtors’ Motion to Vacate Discharge. William V. Bost appeared on behalf of the Debtors, Mark Steven Wilhelm and Regina Gaile Wilhelm, who were also present. After considering the Motion, the court finds that the Debtors’ Motion should be denied. The Debtors filed a case und...
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OPINION This matter comes before the Court upon a Motion to Reconsider filed by the standing Chapter 13 Trustee, John H. Ger-meraad (“Trustee”). The Trustee seeks reconsideration of an Opinion and Order entered February 28, 2007, which, inter alia, approved confirmation of the Debtors’ First Amended Chapter 13 Plan over the Trustee’s objection. For the reasons set forth below, the Trustee’s M...
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MEMORANDUM OPINION This matter comes before the Court on American Express Centurion Bank’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 Procedu...
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MEMORANDUM DECISION RE: CHAPTER 13 CONFIRMATION OF PLAN FACTS Nathan and Georgena Armstrong filed a voluntary petition for relief under Chapter 13 on October 3, 2006. Chapter 13 debtors are required to devote all projected disposable income to repayment of unsecured creditors. The amount of disposable income required to be paid is calculated pursuant to 11 U.S.C. § 1325(b)(1)(B)....
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MEMORANDUM OPINION The trial of this adversary proceeding filed by the plaintiff, Esther P. Zeitchik, *903 pursuant to 11 U.S.C. § 523(a)(5) and (15) to determine the dischargeability of debts owed to Ms. Zeitchik by the defendant, David Paul Zeitchik, was held on June 8, 2007 in Wilson, North Carolina. 1 David Paul Zeitchik filed a petition for relief pursuant to chapter 7 of the Bankruptc...
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MEMORANDUM DECISION On May 2, 2007, the court conducted an evidentiary hearing pursuant to its Amended Order Directing Jan A. Kalicki, Rosalind J. Kalicki, and Dennis Winters, Esq., to Appear and to Show Cause Why They Should not Account for Missing Funds and be Sanctioned and/or Ordered to Disgorge Fees for Violation of this Court’s Order Entered on February 9, 2005 (“Amended OSC”). Jan ...
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MEMORANDUM OPINION William K. Holmes and Airtrek, LLC, Plaintiffs, filed a “Complaint” on October 10, 2003. General Electric Capital Corporation, Defendant, filed an answer and asserted a counterclaim on May 10, 2004. Plaintiffs filed a response to the counterclaim on May 27, 2004. This adversary proceeding came on for a bench trial on April 10, 2006. The Court heard some four an...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the Objection to Exemptions file by Ridgely Porter, III (“Porter” or “Creditor”). Porter claims that several of the exemptions utilized by Kelly Daniels Sheeran (“Sheer-an” or “Debtor”) violate the applicable provisions of 11 U.S.C. § 522 and relevant non-bankruptcy law. Specifically, Porter alleges that the Debtor improperly...
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MEMORANDUM OF DECISION ON UNITED STATES TRUSTEE’S MOTION TO DISMISS CASE PURSUANT TO 11 U.S.C. § 707(b)(2) and TO EXTEND TIME TO OBJECT TO DISCHARGE PURSUANT TO 11 U.S.C. § 727 AND MOVE TO DISMISS CASE PURSUANT TO 11 U.S.C. § 707(b)(3) This matter came before the Court on the United States Trustee’s Motion to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(2) and to Extend Time to Object to D...
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT When Colonial Bank acquired Union Bank of Florida, it also acquired the salacious claims which give rise to this litigation, in which the chapter 11 Debtor accuses her husband, Michael Carlow (“Michael”) of maintaining illicit affairs with two different Bank employees who assisted him in looting her bank accounts of more than $500,000. The source of the fu...
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DECISION GRANTING RULE 9019 MOTION AND APPROVING SETTLEMENT Debtor Delta Air Lines, Inc. (“Delta”) 1 and Kenton County Airport Board (“KCAB”) are parties to a lease (the “Lease”) and various other agreements (collectively with the Lease, the “Facilities Agreements”) governing Delta’s use and occupancy of certain facilities and improvements at the Cincinnati/Northern Kentuck...
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ORDER RE: DEBTOR’S MOTION FOR SANCTIONS ON ALLEGED VIOLATION OF AUTOMATIC STAY This Chapter 11 case came on before the Court for hearing on the Debtor’s motion, *896styled as one for the imposition of sanctions in consequence of an alleged violation of the automatic stay. The Debtor appeared by its attorney, Joel D. Nesset. Sam R. Montgomery, the creditor-respondent, appeared by his attorney, Brad...
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ORDER OVERRULING OBJECTION OF CREDITOR ERIN FEEHAN-NELSON TO DEBTORS’ CLAIM OF HOMESTEAD EXEMPTION This Chapter 7 case came on before the Court on the objection of Erin Feehan- *207 Nelson, a scheduled creditor, to the Debtors’ claim of homestead exemption. The objector appeared by her attorney, Chad C. Alexander. The Debtors appeared by their attorney, Randall S. Johnson. Th...
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MEMORANDUM OPINION AND ORDER DENYING CONFIRMATION OF CHAPTER 13 PLAN Confirmation of Debtors’ Chapter 13 plan is pending before the Court. 1 The Chapter 13 Trustee objects and alleges Debtors’ proposed plan does not commit all projected disposable income to unsecured creditors. 2 The Trustee also raised an issue regarding Debtors’ 401 (k) contributions and loan repayments, but the parties a...
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DECISION RE: TRUSTEE JOHN S. LOVALD’S PROPOSED SETTLEMENT WITH NORTH CENTRAL CONSTRUCTION, INC. The matter before the Court is Trustee John S. Lovald’s Motion to Approve Compromise Agreement with American Prairie Construction Co., f/k/a North Central Construction, Inc., the joinder in the motion filed by North Central Construction, Inc., and the objection to the motion filed by...
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MEMORANDUM OPINION This opinion is with respect to the motion (Adv.Doc. # 14) of defendant Chriss W. Street (“Street”) to dismiss the complaint of Daniel W. Harrow (“Harrow”) and American Trailer Industries Inc. (“ATII”) (collectively, “Plaintiffs”). For the reasons described below, Street’s motion to dismiss is denied. BACKGROUND On October 7, 1996, Fruehauf Trailer Corp. (“Fru...
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OPINION When the Debtors, Leslie and Jo Ann Brooks (DEBTORS), filed for Chapter 13 relief on July 21, 2005, they owned a 2000 Pace Arrow 34-foot motor home (the “Motor Home”) that they valued at $70,000. Fifth Third Bank (the “BANK”) held a lien on the Motor Home securing a claim that the DEBTORS estimated at $90,000. With respect to the BANK and the Motor *196 Horae, the...
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MEMORANDUM DECISION AND ORDER DENYING DEFENDANT POGO PRODUCTION COMPANY’S MOTION TO DISMISS AND REQUEST FOR ABSTENTION The defendant, Pogo Production Company (“Pogo”), seeks the entry of an order dismissing the Complaints filed by Rosetta Resources Operating and Calpine Corporation (“Calpine” or the “Debtor”) pursuant to Fed. R. BankR. P. 7007 and 7012, and in the alternative, requests that the ...
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371 B.R. 6 (2007) In re Peter J. GOULD, Development Co., Debtor. Prologis Six Rivers Limited Partnership, as successor-in-interest to Keystone NJP IV LLC, Movant/Respondent, v. Peter J. Gould, d/b/a Cherry Hill Development Co., Respondent/Movant. No. 03-51180. United States Bankruptcy Court, D. Connecticut, Bridgeport Division. June 20, 2007. *7 Michael J. Reynolds, Esq., Drinker, Biddle & Re...
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The debtor, Whispering Pines Estates, Inc., appeals from an order confirming the third-party plan put forth by its secured creditor, Flash Island, Inc. (“Flash Island”). Under the plan, the debtor’s assets would be liquidated, either by a plan trustee or, if the trustee were unable to sell within a definite time, by Flash Island at foreclosure. The debtor appeals on the basis, among others, that t...
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370 B.R. 236 (2007) In re MACKE INTERNATIONAL TRADE, INC., Debtor. Lawrence I. Wechsler, Appellant/Cross-Appellee, v. Macke International Trade, Inc., Appellee/Cross-Appellant. BAP Nos. CC-05-1437-PaMaB, CC-05-1441-PaMaB. Bankruptcy No. SV 05-14258-GM. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted on February 22, 2007. Filed June 8, 2007. *237 *238 *239 *240 ...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Defendants’ Motion for Partial Summary Judgment with respect to Counts I (Denial of Discharge — 11 U.S.C. § 727(a)(2)(A)), III (Fraudulent Transfer-11 Ú.S.C. § 548), IV (Recovery of Fraudulently Transferred Property — -11 U.S.C. §§ 550 and 551), V (Objection to Exemption— Fed. R. Bankr.P. 4003 and Mass. Gen. Laws ch. 188, ...
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OPINION REGARDING RENEWAL OF JUDGMENT I. ISSUE Should this court issue a new judgment extending its prior judgment which excepted a debt from discharge? II. JURISDICTION The court has jurisdiction over the bankruptcy case and all related proceedings. 28 U.S.C. § 1334. The United *756States District Court for the Western District of Michigan has referred the bankruptcy case and all related proce...
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ORDER DENYING MOTION TO EXTEND AUTOMATIC STAY This case commenced May 1, 2006. Debtor had one prior case that had been filed August 2, 2002 and dismissed January 27, 2006. On May 31, 2006, Debtor filed a motion to extend the automatic stay under § 362(c)(3). Hearing on Debtor’s motion was held July 13, 2006. No opposition to Debtor’s motion was filed and at the hearing, no creditor or party in ...
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ORDER DENYING CONFIRMATION Debtor has proposed a plan that contributes substantially more to his retirement account than to his unsecured creditors. The proposed plan raises two issues: first, whether the plan complies with § 1325(b)(l)’s requirement that Debtor applies all of his projected disposable income to the plan, and second, whether the plan is proposed “in good faith.” The Chapter 13 T...
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MEMORANDUM The above-captioned adversary proceeding was filed by the debtors on March 14, 2007, alleging one count under the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601, et seq., against defendants First NLC Financial Services, LLC and JP Morgan Chase Bank, N.A. A second count under the Real Estate Settlement and Procedures Act (RESPA), 12 U.S.C. §§ 2601, et seq., ...
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MEMORANDUM OF DECISION INTRODUCTION In this case, the chapter 13 debtors, the chapter 13 trustee and the U.S. Trustee 1 disagree on how several provisions of the Bankruptcy Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23 (2005) (“BAPCPA”) should be interpreted and applied. In particular, in the context ...
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OPINION DENYING DEBTORS’ MOTION TO DISMISS AND FOR SUMMARY JUDGMENT I.Introduction This is a non-dischargeability action brought under § 523(a)(4) of the Bankruptcy Code. The Plaintiff, Lee Wholesale Supply, Inc., seeks a determination of a non-dischargeable debt owing by the Debtors, Donald Anthony Yacos and Alice Christina Yacos, based upon their liability to the Plaintiff ...
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MEMORANDUM Hearing was held on June 25, 2007, on Debtor’s Motion to Surrender Funds (Fil.# 50), and a Resistance by Nebraska Workforce Development-Department of Labor (“NWD-DOL”) (Fil.# 52). Richard Register appeared for Debtor, Marilyn Abbott appeared for the Chapter 13 Trustee, and W. Russell Barger appeared for NWD-DOL. This memorandum contains findings of fact and conclusions of law requi...
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*220 MEMORANDUM Hearing was held in Omaha, Nebraska, on June 25, 2007, on Debtor’s Chapter 13 Plan (Fil.# 6), an Objection thereto filed by Deere & Company (Fil.# 15), and an Objection by the Chapter 13 Trustee (Fil.# 12). John T. Turco appeared for Debtor, Brandon R. Tomjack appeared for Deere & Company (“Deere”), and Marilyn Abbott appeared for the Chapter 13 Trustee. This ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court upon a complaint filed by Elsie A. Trucks (“Plaintiff’) seeking to except the debt owed to her by Joyce A. Williams (“Debt- or”) from her discharge pursuant to 11 U.S.C. §§ 523(a)(2) and (19). The Court conducted a trial on March 29, 2007. Upon the evidence and arguments of parties, the Court makes the following Findi...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Under consideration by the Court are three contested matters resulting from three separate objections to the Chapter 13 Plans of Louis and Jamie Petrocci, Octavia Cannon, and William DeLee and Tara Graham-DeLee. Each of the objecting secured creditors (Hyundai Motor Finance Co., Nuvell Credit Corp., and Amer-iCU Credit Un...
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MEMORANDUM OPINION A hearing was held on June 20, 2007, on the motion of Crosspointe Trustees, LLC, for relief from the automatic stay in order to obtain possession of real property located at 9566 James Madison Highway, War-renton, Virginia, and for a determination that the lease under which the debtor occupies the property has been rejected and is not property of the estate. Until shortly befor...
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*112 MEMORANDUM OF DECISION Introduction Chapter 7 1 Trustee Gary L. Rainsdon (“Trustee”) filed an objection to Jeffery Scott Younger’s (“Debtor”) Claim of Exemption in a savings account containing the proceeds from the sale of Debtor’s home. 2 Docket No. 15. On May 2, 2007, the Court conducted an evidentiary hearing at which testimony and oral argu...
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This appeal involves undisputed facts and a single legal issue, which is whether a debtor’s surrender of a “910 vehicle” 1 operates as full satisfaction of a secured creditor’s claim, thereby precluding the filing of an unsecured claim for a deficiency. Because we hold that it does, we affirm the bankruptcy court’s judgment. 2 BACKGROUND Debtors each purchased a vehicle for personal use w...
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MEMORANDUM OF DECISION RE DENIAL OF THE UNITED STATES TRUSTEE’S MOTION TO DISMISS CHAPTER 7 CASE PURSUANT TO 11 U.S.C. § 707(b)(2) This cause comes before the court after hearing on the United States Trustee’s Motion to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(2). It turns on the question whether the debtor may include in her “means test” calculation payments due on her secured propert...
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MEMORANDUM OF OPINION AND ORDER By order entered February 26, 2007, the Court, on motion of debtors Northwest Airlines Corporation et al. (the “Debtors”), required an ad hoc committee of equity security holders that had appeared in these chapter 11 cases (the “Committee”) to comply with the plain requirements of Bankruptcy Rule 2019 and file an amended Rule 2019 stat...
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OPINION DENYING MOTION FOR SUMMARY JUDGMENT AND GRANTING MOTION IN LIMINE The telecommunications company MCI WorldCom Network Services, Inc. (“MCI” or the “Debtor”), seeks summary judgment with respect to A.P.G. Ine.’s (“APG”) claim of unjust enrichment arising from a contract APG had with Conserv Corporation (“Conserv”), an independent distributor that purchased MCI prepaid telephone car...
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ORDER Before the Court are Cross Motions for Summary Judgment filed by the Plaintiff Adam M. Goodman (hereinafter the “Trustee”), in his capacity as trustee of the Chapter 13 bankruptcy estate of James Anthony Norsworthy (hereinafter the “Debtor”), and the defendant, Southern Horizon Bank (hereinafter “SHB”). The motions arise from a complaint to avoid a transfer of an interest in pro...
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MEMORANDUM DECISION ON TRUSTEE’S OBJECTION TO CONFIRMATION Before the court is the chapter 13 trustee’s objection to the debtors’ proposed plan modification relieving the debtors of the obligation to turn over to the trustee for distribution to creditors any income tax refunds due in the past or going forward. For the reasons stated herein, the objection is sustained in part and overruled in pa...
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MEMORANDUM DECISION AND ORDER Before the Court is a motion by the Debtor’s major creditor seeking to dismiss the Debtor’s Chapter 7 case for cause pursuant to 11 U.S.C. § 707(a) on the basis that the Debtor’s bankruptcy petition was filed in bad faith (the “Motion”). Based upon the facts and circumstances of this case and the relevant case law interpreting § 707(a), the Court grants the M...
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MEMORANDUM OF DECISION Overruling Trustee’s Objections To Debtors’ Claim of Exemption in 403(B) Plan and Denying Trustee’s Turnover Demand The issue presented in this case is straightforward: are contributions that Debtor Jean Leahy made to her 403(b) employee retirement plan excluded from property of the bankruptcy estate? Based upon the clear language of the statute, the Court finds that fu...
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MEMORANDUM OF DECISION This adversary proceeding is before the court for judgment after trial. The plaintiff, WISH Acquisition (“Acquisition”) asserts that defendant Christopher Salvino owes it debts that are nondischargeable in his Chapter 7 bankruptcy case pursuant to § 523(a)(2) and (6) of the Bankruptcy Code (Title II, U.S.C.). These provisions except from discharge debts that arose f...
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MEMORANDUM of DECISION In this Chapter 7 bankruptcy, after due notice, a hearing was held May 8, 2007, in Butte on the United States Trustee’s Motion to Dismiss filed January 25, 2007. The United States Trustee (“UST”) was represented at the hearing by attorney Daniel P. McKay (“McKay”), of Great Falls, Montana, and Debtors were represented at the hearing by their attorney of record, R. Clift...
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MEMORANDUM DECISION RE MOTION FOR RULE 2001 EXAMINATION ColomboBank FSB (the “Bank”) has filed a motion (Docket Entry (“DE”) No. 128) to examine the debtor, James Gregory Barnes, pursuant to Fed. R. Bankr.P. 2004. The court will deny the motion for the following reasons. I In the Bank’s adversary proceeding against Barnes, Adv. Pro. No. 06-10028, the court previously entered an order appr...
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MEMORANDUM OPINION Plaintiffs Motion for Summary Judgment Document # 5 On May 7, 2007, this Court took oral argument on a motion for summary judgment by Anthony Calascibetta, Chapter 7 Trustee for Strategic Technologies, Inc. (“STI Trustee”). The Debtor, pro se, filed opposition to the motion, and after oral argument the Court reserved decision. The Supreme Court ...
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*489 MEMORANDUM OPINION If a tree falls in the forest and no one hears it, does it make a sound? This question, which has been with us for centuries, is the bane of most freshman philosophy students. There is an analogous question of bankruptcy law which must be answered today — if counsel, whose fees are subject to court approval, performs services for a debtor and fails to secu...
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MEMORANDUM OPINION ON DEBTOR’S COMPLAINT TO DETERMINE VALIDITY AND EXTENT OF LIEN [Docket No. 1] I.INTRODUCTION Maria Cadengo (Maria or the Debtor) filed this adversary proceeding against Consolidated Fund Management, LLC (Consolidated), Wolverine Mortgage Partners, LLC (Wolverine), and Premier Home Loans, LLC 1 (collectively, the Defendants) seeking to invalidate a lien o...
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MEMORANDUM OPINION ON MOTIONS FOR SUMMARY JUDGMENT This opinion addresses the protections afforded to dairy farmers under a provision of the Texas Agriculture Code, and whether those protections remain in the context of a bankruptcy proceeding. Motions Before the Court Lone Star Milk Producers, Inc. (“Plaintiff’, or “Lone Star”), filed its Motion for Summary Judgment in ...
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MEMORANDUM OPINION This matter is before the court on the objection of Americredit Financial Services to confirmation of the chapter 13 plan proposed by debtor Helene Hopkins. For the reasons that follow, the objection will be overruled, and the plan will be confirmed. The few relevant facts are set forth in AmeriCredit’s objection and are not disputed. Americredit is a creditor ...
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MEMORANDUM Hearing was held in Lincoln, Nebraska, on June 27, 2007, on Debtors’ Chapter 13 Plan (Fil.# 4), and an Objection thereto by the Chapter 13 Trustee (Fil.# 18). David P. Lepant appeared for Debtors, and Marilyn Abbott appeared for the Chapter 13 Trustee. This memorandum contains findings of fact and conclusions of law required by Federal Rule of Bankruptcy Procedure 7052 and Federal ...
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MEMORANDUM OF DECISION This matter came before the Court upon the motion of the Defendant Cindy Speiser: (a) under Fed.R.Civ.P. 12(b)(6) and Fed. R. BankrJP. 7012 for an order dismissing those causes of action in the complaint which seek to affect title to Ms. Speiser’s residence located at 1918 Lowell Lane, Merrick, New York; 1 (b) under (i) Fed.R.Civ.P. 12(b)(6) and Fed. ...
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*585 OPINION REGARDING MOTIONS BY DEFENDANTS TPS McADAMS, LLC AND QUACHITA POWER, LLC TO DISMISS AMENDED COMPLAINT Commencing on December 2, 2001 (the “Petition Date”), and from time to time continuing thereafter, Enron Corp. (“Enron”) and its affiliates, (collectively, and together with Enron, the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 of th...
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MEMORANDUM OF DECISION Before the Court is a Motion for Summary Judgment, filed by the Defendant, Robert Stockard. The motion is opposed by the Plaintiff, Tali A. Tomsic as Chapter 7 trustee of Salience Associates, Inc. (the “Trustee”; the “Debtor”). The Trustee’s complaint, brought under 11 U.S.C. § 547(b), 1 seeks to avoid a transfer made by the Debtor to Stockard within ...
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OPINION By a prior Opinion of this Court dated and filed October 12, 2006, the Court denied Defendant’s Motion to Dismiss but held in abeyance Cross Motions for Summary Judgment until such time as the parties briefed the issue of whether the 1993 Amendment to the Workers’ Compensation Act applied to the Heart and Lung Act. George W. Cole (hereinafter “Cole”) was a Wilkes-Barre ci...
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OPINION In a matter of first impression, the Debtors are proffering, in their Second Amended Chapter 13 Plan (Doc. #50), treatment of a secured lender that appears quite consistent with the provisions of 11 U.S.C.A. § 1325. Notwithstanding, that plan must fail. There is no disagreement on the underlying facts. The Debtors engaged a contractor to build their home. A construction loan was s...
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*97 OPINION The United States Trustee contends that the Chapter 7 filing of the Debtors is presumed abusive under the Bankruptcy Code, § 707(b)(2). The Debtors dispute that conclusion and suggest that the statutory language is being misinterpreted. If I find that a consumer Chapter 7 debtor is abusing the provisions of Chapter 7, then I may dismiss the case. 11 U.S.C.A. ...
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OPINION 1 The Debtor-in-Possession, CCI Construction Co., Inc., and The St. Paul Companies, 2 (hereinafter “Plaintiffs”) filed a Complaint to set aside several preferential payments by the Debtor to Allfirst Bank (hereinafter “Bank”) under the terms of 11 U.S.C. § 547(b) or, in the alternative, for recovery of improper setoff pursuant to 11 U.S.C. § 553. While th...
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OPINION Appellant Phillip Hilgers (Debtor) appeals the bankruptcy court’s judgment declaring that his interests in three trusts were property of his bankruptcy estate and subject to turnover to the bankruptcy trustee under 11 U.S.C. § 542(a). 1 For the following reasons, we affirm. I. Background The Debtor’s parents, Jack and Laverne Hilgers, and his grandmother, Blanche Hilgers, executed...
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MEMORANDUM OPINION SUSTAINING TRUSTEE’S OBJECTION TO DISCHARGE THIS MATTER came before the Court for trial on January 19, 2007, upon Deborah Menotte’s (the “Trustee”) Complaint Objecting to Discharge (the “Complaint”). Daniel J. Hahn (“Mr.Hahn”) and Yadira Ordonez Hahn (“Mrs.Hahn”) (collectively the “Debtors”) appeared pro se at the trial. The Court makes the following findings of fact and ...
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Introduction This appeal by Jack E. Houghton, Jr., the chapter 7 trustee, is from the bankruptcy court’s order overruling his objection to the debtor’s claim of a homestead exemption under Massachusetts law. The debtor, Edward R. Szwyd, was the sole trustee and sole beneficiary of the nominee trust holding legal title to his principal residence. He attempted to acquire an estate of homestea...
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ORDER GRANTING MOTION FOR ABSTENTION AND REMANDING ADVERSARY PROCEEDING TO THE THIRTEENTH JUDICIAL DISTRICT COURT THIS MATTER is before the Court on the Plaintiffs Motion for 28 U.S.C. § 1334(c)(2) Mandatory Abstention, and in the Alternative, Response to Motion to Transfer Venue. (“Motion for Abstention”). Also before the Court is Defendant WSF — WorldSports Fans, LLC’s Motion to Tra...
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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 student loan obligations pursuant to 11 U.S.C. § 523(a)(8). Trial was held April 4, 2007 in Sioux City. Attorney Wil L. Forker appeared for plaintiffs, Timothy J. Loftus and Rita L. Loftus. Attorney Marty L. Rowlet appeared on be...
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ORDER DENYING MOTION TO DISMISS This case came on for hearing on the United States Trustee’s motion to dismiss the debtor’s chapter 7 case pursuant to 11 U.S.C. §§ 707(a), 707(b)(2), or 707(b)(3). An evidentiary hearing was held on April 27, 2007. Michael R. Fadlovich appeared on behalf of the U.S. Trustee and Barbara J. May appeared on behalf of the debtor. Based on the evidence...
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ORDER DENYING MOTION OF UNITED STATES TRUSTEE FOR DISMISSAL PURSUANT TO 11 U.S.C. § 707(b) This Chapter 7 case came on before the Court for hearing on the motion of the United States Trustee (“the UST”) for dismissal under 11 U.S.C. § 707(b). The UST appeared by his attorney, Michael R. Fadlovich. The Debtors appeared by their attorney, Joseph L. Kelly. The following order memorializes th...
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MEMORANDUM OF DECISION Before the Court is a Motion for Summary Judgment, filed by the Defendant, Sales Consultants of Boston, Inc. (“SCB”). The motion is opposed by the Plaintiff, Tali A. Tomsic as Chapter 7 trustee of Salience Associates, Inc. (the “Trustee”; the “Debt- or”). The Trustee’s complaint seeks to avoid various transfers made by the Debt- or to SCB within one year of the ...
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MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT This matter is before the Court on a motion for partial summary judgment filed by the plaintiff Sterling Vision, Inc. (“Sterling Vision”). The defendant Sanwa Business Credit Corporation (“Sanwa”) 1 filed a cross-motion for summary jud...
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STATEMENT OF DECISION RE DEBTOR’S VEHICLE OWNERSHIP EXPENSE This case requires the Court to determine whether some Chapter 13 debtors are entitled to an automatic ownership deduction for a second vehicle in determining “disposable income,” irrespective of whether any payment for the vehicle is actually due. The Court writes to add a few additional thoughts on this vexing issue of statutory inte...
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MEMORANDUM OPINION 1 Before the Court is the Objection of the Liquidation Trustee to Claim Numbers 22 and 23 2 Filed by the City of Wichita, Kansas and Motion to Estimate, if Necessary (the “Objection”) [Docket No. 233]. For the reasons stated below, the Court *629 will sustain the Objection and disallow the claims pursuant to section 502(e)(1)(B) of...
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MEMORANDUM DECISION DISALLOWING VEHICLE OWNERSHIP EXPENSE DEDUCTION FOR CHAPTER 7 DEBTOR WITHOUT CAR LOAN OR LEASE PAYMENT Before the Court is the United States Trustee’s Motion to Dismiss the Chapter 7 case of Patricia Ann Cole pursuant to 11 U.S.C. § 707(b)(1). 1 The Debtor opposes *455 the motion. The Court heard oral arguments on April 27, 2007 and instructed t...
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ORDER For the reasons set forth in the Court’s opinion of this date, the Modified Omnibus Objection to Indemnification Claims of Certain of the Debtors’ Former Directors and Officers [Docket No. 650] is OVERRULED; the Plan Administrator’s Motion in Limine to Preclude Claimant Andrew Feldman from Proffering Expert Testimony from David J. Schindler, A Lay Witness, Concerning Expected Fu...
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*374 MEMORANDUM OPINION Neal Eugene Robbins (Debtor) filed an adversary proceeding on May 9, 2006, to determine the dischargeability of his student loans. The Debtor argues that excepting this claim from discharge pursuant to 11 U.S.C. § 523(a)(8) would impose an undue hardship on him. A hearing was held on March 23, 2007, in Little Rock, Arkansas. The Court took the matter under advisement...
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MEMORANDUM OF DECISION This chapter 7 case presents issues under the means test of amended § 707(b). 1 *822 The United States Trustee (“UST”) filed a motion under § 707(b)(1), Doc. No. 22 (the “Motion”), contending the granting of chapter 7 relief would be an abuse and that, unless this case is converted voluntarily to chapter 13, it should be dismissed. To resolve thi...
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DECISION & ORDER In this chapter 11 proceeding, the debt- or objects to a request from the Official Committee of Unsecured Creditors for an order authorizing the retention of counsel. The essence of the dispute is whether the proposed counsel is prohibited from representing the Creditors’ Committee, by reason of the firm’s representation of individual Committee members. Joseph E....
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MEMORANDUM I. INTRODUCTION The matters before the Court are two motions filed by James P. Long, Esq. (“Long”), as well as a motion filed by the Debtor, Edward Rodrigues (the “Debtor” or “Edward”). Long filed his motions, captioned “Creditors [sic] Motion to Reopen Debtors [sic] Petition” (the “Motion to Reopen”) and “Creditors [sic] Motion to Remove Case to the Bankruptcy Court” (the...
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ORDER ON CHAPTER 7 TRUSTEE’S MOTION FOR ORDER OP CONTEMPT Debtors Zoltán Enyedi and Leona A Nelson (“Debtors”) filed for bankruptcy protection under Chapter 7 of the Title 11 of the United States Code (“Bankruptcy Code” or “Code”) on July 23, 2006. Pursuant to section 341 of the Code, a meeting of creditors was held on August 21, 2006. Eugene Crane was assigned as the Trustee in the Debto...
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DECISION DETERMINING NO CARVE OUT, AND ORDER DENYING FEE APPLICATIONS AS MOOT This dispute illustrates the hazards to Chapter 11 professionals who are blindsided when a reorganization case that, by all accounts, appears destined for success, unexpectedly becomes an administratively insolvent Chapter 7 case. The high expectations that once prevailed here faded rapidly when a proposed s...
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MEMORANDUM Defendant Jacqueline F. Emore has filed a motion to dismiss the above-captioned adversary proceeding, contending either that the plaintiff seeks an advisory opinion or that the issues posed can and should be decided by the state court. Defendant Maria Ciccimaro seeks summary judgment for the same reasons. The plaintiff opposes dismissal or summary judgment, initially contending...
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MEMORANDUM OPINION I. INTRODUCTION Debtor Mary Ann Graboyes (“the Debt- or”) commenced this chapter 13 bankruptcy case on September 23, 2002. Presently before me is the Debtor’s motion styled as a “Motion to Set the Amount of the Secured Claim of First Business Credit Company, To Set Off the Credit Against Said Claim Granted for its Violation of the Automatic Stay and to ...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO CONFIRMATION OF AMENDED CHAPTER 13 PLAN In determining a debtor’s “projected disposable income” under section 1325(b)(1)(B) of the Bankruptcy Code, 1 the presumptive starting point is the disposable income number obtained from the Chapter 13 Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income...
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OPINION Called into play in this case is an interpretation of 11 U.S.C.A. § 1322(b)(2), otherwise know as the “anti-modification clause.” That section reads: (b) Subject to subsections (a) and (c) of this section, the plan may— *650 (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal r...
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MEMORANDUM OPINION This matter is before the court on the motion of Chapter 7 Trustee, Joy R. Webster (“Trustee”), to sell, under 11 U.S.C. § 363(b)(1), property of the estate consisting of Debtor E. Murray Newlin’s (“Debt- or”) interest in a professional partnership known as Newlin & Winchester Partners to Debtor for $35,000.00. One of Debtor’s creditors, Columbus Bank & Trust Co. (“CB & T”), ...
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OPINION This matter comes before the Court upon the United States Trustee’s (“UST”) Motion to Dismiss Pursuant to 11 U.S.C. § 707(b)(1) and (b)(2) (“Motion to Dis *350 miss”). The Court has considered the evidence and the arguments of counsel and finds that the Debtors have established sufficient “special circumstances” to overcome the presumption of abuse upon which the UST relies in seeking...
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MEMORANDUM DECISION FINDING NONCOMPLIANCE WITH § 521(a)(l)(B)(iv) AS TO BRANDON L. MILLER ONLY This case once again requires the Court to visit the automatic dismissal provisions of 11 U.S.C. § 521(a)(l)(B)(iv) and (i). 1 The Debtors argue that the documents filed by Brandon L. Miller (Miller) constitute statutorily sufficient “other evidence of payment” and challenge the const...
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OPINION DENYING UNITED STATES TRUSTEE’S MOTION TO DISMISS I. Introduction Before the Court is the United States Trustee’s Motion to Dismiss For Abuse Debtor’s Chapter 7 Case Under 11 U.S.C. § 707(b)(2) and § 707(b)(3). 1 The issue *808 under § 707(b)(2) is what constitutes special circumstances for which there is no reasonable alternative that will rebut the statutorily defined presumpt...
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OPINION We confront the puzzle of the status of an executory contract that was neither assumed nor rejected during a chapter 11 case in which there was a confirmed plan that did not involve transfers of property of the estate or creation of new entities. We conclude that the “ride through” doctrine developed under the former Bankruptcy Act retains vitality in chapter 11 cases when the debtor cont...
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MEMORANDUM OF DECISION INTRODUCTION William and Pollyanna Kelvie (“Debtors”) filed their chapter 7 petition for relief on November 10, 2006. Doc. No. 1. The provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. 109-8, 119 Stat. 23 (2005), apply. On May 11, 2007, the United States Trustee (“UST”) filed an amended motion to dismiss th...
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ORDER ON REORGANIZED DEBTOR’S MOTION TO SUBORDINATE NONPECUNIARY TAX PENALTY CLAIM OF THE DEPARTMENT OF THE TREASURY-IRS AS SET FORTH IN CLAIM NO. 67 (Doc. No. 890) THE MATTER before this Court involves the question of whether or not it is *547 appropriate for this Court to consider Section 726(a)(4) of the Bankruptcy Code in the context of a Chapter 11 case. The mat...
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ORDER ON DEFENDANT SOLOMON TROPP’S AND NON-PARTY COUNSEL McGIRNEY’S AND JAHN’S EXPEDITED MOTION AND MEMORANDUM TO DEFER HEARING ON OBJECTIONS TO TRUSTEE’S PROPOSED RULE 7037 ATTORNEYS’ FEE SANCTIONS AND THEIR APPORTIONMENT UNTIL ENTRY OF A FINAL ORDER ON THE MERITS OF ADVERSARY PROCEEDING (THE MOTION TO DEFER) (DOC. No. 492) and RESPONSE OF THE TRUSTEE IN OPPOSITION TO THE MOTION TO DEFER (Doc. N...
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ORDER DENYING DEBTORS’ MOTION TO MODIFY CONFIRMED CHAPTER 13 PLAN WITHOUT PREJUDICE This case came before the Court upon Michale Thomas Demske and Cheryl Renee Demske’s (“Debtors”) Motion to Modify Confirmed Chapter 13 Plan (“Motion to Modify”) and the Chapter 13 Trustee’s (the “Trustee”) Objection to the Motion to Modify (“Objection”). The Court held a hearing on January 31, 2007. In...
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COMBINED ORDER ON THE SOLOMON TROPP LAW GROUP, P.A.’S AMENDED VERIFIED MOTION FOR SUMMARY JUDGMENT ON COUNTS II, III, VII, AND XVII-XIX; (Doc. No. 463), AND MOTION FOR SUMMARY JUDGMENT ON NON-CORE CLAIMS ON LEGAL AND EQUITABLE GROUNDS INCLUDING THE IMPUTATION OF ATLANTIC’S OFFICERS’ WRONGDOING TO THE TRUSTEE.(Doc. No. m) The Motions under consideration were filed in the above-capt...
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FINDINGS OF FACT, CONCLUSION OF LAW AND MEMORANDUM OPINION THE MATTER under consideration in this Chapter 7 liquidation case of Arthur Joseph Deerey, Jr. (Debtor) in the above-captioned Adversary Proceeding is a multiple-count First Amended Complaint filed by DirecTV, Inc. (DIRECTV) against the Debtor. In the Complaint, DIRECTV alleges in Counts IA and IB that a certain debt owed...
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DECISION AFTER TRIAL This adversary proceeding was brought by judgment creditor Doubet, LLC (“Doubet”) against debtor-defendant Douglas E. Palermo (“Palermo”) seeking to deny Palermo’s discharge under Sections 727(a)(2), (3) and (5) of the Bankruptcy Code, 11 U.S.C. §§ 727(a)(2), (3) and (5). The case was tried to the Court without a jury. The following constitute the Court’s findings...
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DECISION AND ORDER This cause comes before the Court after a Hearing on the Motion of the United States Trustee to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(1). At the conclusion of the Hearing, the Court took the matter under advisement so as to afford time to thoroughly consider the issues raised by the Parties. The Court has now had this opportunity, and finds, for the reasons now explai...
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ORDER ON MOTION FOR RECONSIDERATION OR REHEARING ON ORDER DENYING AMENDED MOTION TO IMPOSE SANCTIONS (Doc. No. 888) THE MATTER under consideration is the next phase of a seemingly endless legal feud between John Richard Homes Building Company, LLC, (JRH) and Kevin Adell (Adell), a Debtor, who was formerly before this Court as a Chapter 11 debtor, and who, on May 12, 2005, converted his Case...
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DECISION OF THE COURT GRANTING, IN PART, AND DENYING, IN PART, THE PLAINTIFF’S MOTION TO DISMISS DEFENDANT’S COUNTERCLAIMS OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT 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 Plaintiffs Motion to Dismiss De...
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MEMORANDUM DECISION REGARDING DEBTOR’S APPLICATION TO EMPLOY SPECIAL COUNSEL Before the court is the Debtor’s Application to Employ Special Counsel (the “Application”). The Debtor seeks to employ the law firm of Pascuzzi, O’Neill & Moore (“Pascuzzi”) to serve as its “special counsel” pursuant to 11 U.S.C. § 327(e). The United States Trustee (“UST”) objects on the grounds that Pascuzzi alr...
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MEMORANDUM OPINION This matter comes before the Court on Citizens Auto Finance’s objection to confirmation. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(D). 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. Find...
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MEMORANDUM OPINION The trustee seeks to recover from defendant Troy Wright (“Wright”) the estate’s share of his 2004 and 2005 federal and state income tax refunds. The trustee also seeks to revoke defendant’s discharge for disobeying two turnover orders and failing to turnover property of the estate. The trustee, J. Michael Morris, (“Morris”) appeared on his own behalf. Wright appeare...
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OPINION ON APPOINTING DIVORCE COUNSEL I. Introduction This case Involves two debtors, husband and wife, who filed a joint chapter 11 bankruptcy petition and applied for authorization to employ their respective divorce counsel to perform legal services in relation to their marital dissolution proceeding pending in state court. The court, after a hearing on notice, granted both motions...
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OPINION Before the Court is the motion filed by The Goldfarb Corporation (GOLDFARB), *779 Martin Goldfarb (MARTIN), Stanley Gold-farb (STANLEY) and Alonna Goldfarb (ALONNA), to dismiss part of Count I and Counts III, IV and V of the Second Amended Complaint brought against them by Gary T. Rafool, Chapter 7 Trustee (TRUSTEE). Also before the Court is the motion filed by th...
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OPINION In this preference action under 11 U.S.C. § 547, the bankruptcy court granted summary judgment in favor of the defendant, concluding that the alleged preferential payments had not been property of the debtor because they were trust funds under Michigan law. For the reasons that follow, the decision will be reversed and the proceeding remanded. I. ISSUES ON APPEAL The iss...
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Opinion Before the Court is the Motion for Relief from Stay (the “Motion”) of AGLF Investments, LLC (“AGLF”), seeking to recover possession of real property leased to the Debtors for their residence (the “Residence”). The Motion brings into play new provisions of the Bankruptcy Code added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. S 256, 109-8, ...
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OPINION GRANTING IN PART, DENYING IN PART, PERMISSION TO ASSERT COUNTERCLAIMS I. INTRODUCTION On July 21, 2002, and continuing thereafter, WorldCom Inc. and certain of its subsidiaries (hereinafter “WorldCom” or “Reorganized Debtors”) filed for bankruptcy under Chapter 11 of the Bankruptcy Code in the Southern District of New York. Roger B. Abbott (“Abbott”) subsequently filed proof of claim numb...
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MEMORANDUM OPINION ON PENDING FEE APPLICATIONS On March 12, 2007, and pursuant to this Court’s Amended Order Denying Motion for Payment of Interim Distribution, Setting Deadline for the Filing of Objections to Claims, and Setting Deadline for the Filing of Final Fee Applications (C.P. 575-“Seheduling Order”), this Court conducted hearings to consider the following-delineated fee appli...
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ORDER ON CONFIRMATION OF DEBTORS’ CHAPTER 13 PLAN This matter is before the Court on confirmation of Debtors’ Chapter 13 Plan. The Debtors’ income is above the standard median income for a family of their size in this district. The Court previously determined that “projected disposable income” under 11 U.S.C. § 1325(b)(1)(B) for above-median income debtors is calculated by using the Debtors’ ...
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AMENDED MEMORANDUM OPINION This Order was originally entered on July 18, 2007, and is hereby amended only to correct a typographical error in footnote 1. On March 22, 2007, a trial was held in the above-captioned adversary proceeding. David A. Grace appeared on behalf of the Defendants/Debtors (“Debtors”). Stephen B. Niswanger appeared on behalf of the Trustee, M. Randy Rice (the...
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ORDER ON FEDERAL PORT CORPORATION’S VERIFIED MOTION FOR RELIEF FROM ORDER (Doc. No. 550) THE MATTER under consideration in this Chapter 7 case represents a paradigm of a clash between a specific Bankruptcy Code provision, i.e., Section 363(m), and the property rights of a non-debtor, Federal Port Corporation (Federal Port). Federal Port filed its Verified Motion for Relief from Order (the R...
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MEMORANDUM DECISION AND ORDER GRANTING DEBTOR’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO POST-PETITION ATTORNEYS’ FEES The majority of courts have held that an unsecured creditor is not entitled to collect post-petition attorneys’ fees, costs, and *550 other similar charges — even if there is an underlying contractual right to do so. Amwest Surety Insurance Company (“Am-...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Upon the evidence presented at the hearing on Trustee’s Objection to Debtors’ Claim of Homestead Exemption, the Court entered Findings of Fact and Conclusions of Law on November 29, 2005. On appeal, the United States District Court for the Middle District of Florida, Jacksonville Division, reversed and remanded this Court’s Findings of Fact and Conclusi...
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MEMORANDUM OPINION 1. On Objection of Wisconsin Cheese Group (“Wisconsin Cheese”) to Confirmation of Second Amended Plan (“Plan Objection”) 2. On Objection of Wisconsin Cheese to Debtor’s Motion to Approve Settlement Agreement (“Settlement Objection”) The issues discussed here relate to this pending Chapter 11 case filed by the Debt- or, The Quay Corporation, Inc. (“Quay”), Quay engaged i...
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OPINION The trustee in this chapter 13 case questions whether a single debtor, who claims an ownership expense for two motor vehicles on Official Form B22C, has applied all of her projected disposable income to make payments to unsecured creditors under her chapter 13 plan as required by 11 U.S.C. § 1325(b). The debtor in this case filed a petition for relief under chapter 13 on January 1...
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OPINION In each of the above captioned cases, the Chapter 13 trustee objects to confirmation on the grounds that the proposed plan fails to use the proper methodology to calculate the debtors’ projected disposable income and/or fails to provide for payment of all of the debtors’ disposable income for a period of five years. This opinion examines 11 U.S.C. § 1325(b) and addresses: (1) ...
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ORDER REGARDING MOTION FOR RELIEF FROM STAY PURSUANT TO 11 U.S.C. § 362(d)(3) THIS MATTER came before the Court for hearing on June 6, 2007, pursuant to the Motion of Canal Land & Timber, LLC (“Movant”) for relief from the automatic *100 stay of 11 U.S.C. § 362(a). 1 After hearing and careful consideration, the Court enters the following order: FINDINGS OF FAC...
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OPINION These matters having come before the Court on a Rule to Show Cause and Re *867 sponse of William Wells and Financial Services Law Practice, P.C., to Order to Show Cause; the Court, having heard arguments of counsel and having reviewed the record of these proceedings and the written memoranda of the parties, makes the following findings of fact and conclusions of l...
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MEMORANDUM OPINION The Court considers whether to approve the First Amended Plan of Reorganization (the “Plan”) of Wool Growers Central Storage Company (“Wool Growers”) which contains a provision providing that, in return for a contribution of $2,625,000 by three of its directors, any claims by creditors against the directors are released. The Plan is opposed by creditors Jack David W...
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Rule 47A(a) of the Eighth Circuit’s Local Rules of Appellate Procedure, applicable to this Panel under L.R. B.A.P. 8th Cir. 8001A(b)(4), authorizes the sua sponte summary disposition of an appeal if it is entirely without merit. A review of the record before us, albeit limited, supports a determination that this appeal is entirely without merit. Therefore, for the reason stated below, we affirm th...
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*753 ORDER DENYING MOTION TO CONVERT TO CHAPTER 11 THIS MATTER is before the Court on the Debtor’s motion to convert this case to one under Chapter 11 of the Bankruptcy Code. Distinct Edgewater, LLC (“Distinct”), Edgewater on Broad Creek Horizontal Property Regime and Edgewater on Broad Creek Property Owners Association (jointly “Property Owners Association”), and the Chapter 7 t...
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DECISION & ORDER The present dispute involves the substantive grounds for the dismissal of a bankruptcy case under section 521(i) of the Bankruptcy Code, as well as the procedural requirements for consideration of a request for an order confirming this outcome. Section 521 of the Bankruptcy Code defines the duties of a debtor. Pursuant to subdivision (a)(l)(B)(iv) of this section...
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MEMORANDUM OPINION This matter is before the court on cross-Motions for Summary Judgment filed by the Plaintiff and Defendants Mortgage Electronic Registration Systems, Inc. (“MERS”), Encore Credit Corp. (“Encore”), and Option One Mortgage Corporation (“Option One”) (collectively “the Defendants”). The issue before the court is whether a mortgage given in connection with a refinancing loan was ...
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MEMORANDUM OPINION REGARDING MOTION TO ALTER OR AMEND JUDGMENT THIS MATTER comes before the Court pursuant to “James S. Matthews Motion to *507 Amend Judgment and for Stay of Proceedings” (the “Motion”), filed by James S. Matthews, Jr. (“Matthews”). 1 Matthews requests that the Court amend the Judgment (the “Judgment”) entered in each of the above-captioned bankruptcy eases on June 29, 2007...
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MEMORANDUM DECISION SUSTAINING DEBTOR’S OBJECTION TO CLAIM NO. 4 OF WELLS FARGO FINANCIAL, WISCONSIN, INC. Erma L. Averhart (“debtor”) has objected to the proof of claim filed by Wells Fargo Financial, Wisconsin, Inc. (“Wells Fargo”) in this chapter 13 case. Wells Fargo holds a security interest in the debt- or’s 2002 Nissan Altima automobile. Debtor asserts that Wells Fargo’s secured claim sho...
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MEMORANDUM OPINION Before the court is the “Complaint to Determine Dischargeability of Debt [sic] Section 523(a)(5) and Section 523(a)(15) Debt for Attorney’s Fees for Alimony or Support of Child ” (the “Complaint”) filed by Loe, Warren, Rosenfield, Katcher, Hibbs & Windsor, P.C. (the “Firm”) pursuant to 11 U.S.C. § 523. Also before the court is the “Rule 12(B)(6) [si...
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ORDER GRANTING TRUSTEE’S MOTION TO WAIVE PRIVILEGE AND COMPEL TURNOVER OF PROPERTY This case is before the Court on Motion to Waive Privilege and Compel Turnover *520 of Property from Smith, Hood, Perkins, Loucks, Stout, Bigman, Lane & Brock, P.A. (“Motion”) filed by Gregory K. Crews, as Chapter 7 Trustee (the “Trustee”). The Trustee filed his Motion under the authority o...
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Opinion Introduction. The Debtor has objected to the claim of AmeriCredit Financial Services, Inc. The objection is opposed. A hearing on the matter was held May 30, 2007 at which the parties offered oral argument. At the conclusion of the hearing, the Court allowed the parties two weeks to brief the issues. Upon receipt of those submissions, the Court took the matter under a...
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DECISION Thomas J. King, chapter 13 trustee (“trustee”), seeks to avoid a security interest held by defendant, Ernie von Schle-dorn, Inc. (“EVS”), as an unperfected lien pursuant to 11 U.S.C. § 544(a). EVS takes issue with the trustee and asserts that its security interest should “remain intact.” This matter is now before the court on the trustee’s motion for summary judgment. Briefs by both ...
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OPINION Accredited Home Lenders (“Accredited”) appeals the entry of summary judgment by the bankruptcy court in favor of *800 the Chapter 7 Trustee (“the Trustee”) in an adversary proceeding in which the Trustee sought a determination of the validity and extent of Accredited’s mortgage against the debtors’ real estate, which was subject to the Ohio Land Registration Act. In g...
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OPINION This appeal involves an alleged fraudulent transfer by Cheryl Forbes (the “Debt- or”) to her sister, D. Lavonne Eiseman (“Eiseman”). The disputed transfer occurred when the Debtor’s ex-husband, Gregory Forbes (“Greg Forbes”), loaned approximately $157,000 to Eiseman. Eise-man used those funds as a down payment toward the purchase of a house for the Debtor in Lodi, California and s...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT THIS CAUSE came before the Court upon the Plaintiffs Motion for Summary Judgment Against Defendant, Philip Reis, filed on November 17, 2006. The Court, having considered the testimony of the Defendant at the Bankruptcy Rule 2004 examinations, the documentary evidence presented by the parties, the underlying pleadings, and being otherwise ful...
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MEMORANDUM OF DECISION INTRODUCTION This lawsuit is present in this court on Allen D. Allen’s (Allen or defendant) request for removal from the Los Angeles Superior Court. This decision deals with two motions. First, Maya, LLC (Maya or plaintiff), moves to remand the lawsuit back to the Los Angeles Superior Court, where Maya originally filed its complaint on September 30, 2005. In th...
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ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW (Counts VIII, IX, X (“LaSalle Counts”)) This Adversary proceeding relates to Counts VIII, IX, and X of the case filed by Debtor Doctors Hospital of Hyde Park, Inc. (“Doctors Hospital”) under Chapter 11 of the Bankruptcy Code, Title 11 U.S.C. It is now being pursued by the Chapter 11 Trustee in those Counts against LaSalle Bank N....
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MEMORANDUM OPINION This Memorandum Opinion constitutes the Court’s findings of fact and conclusions of law pursuant to Fed. R. Bankr.P. 7052. The matter before this Court is Coastal Credit L.L.C.’s Objection to Confirmation of the Debtors’ amended Chapter 13 Plan. This matter is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A)(L) and (O). Pursuant to the Objection, Coastal Credit, L.L....
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MEMORANDUM AND ORDER DENYING TRUSTEE’S COMPLAINT TO RECOVER PREFERENCE FROM DEFENDANT FIA CARD SERVICES The matter under advisement is the Chapter 7 Trustee’s Complaint to Recover *513 Preference 1 pursuant to 11 U.S.C. § 547(b). 2 The plaintiff Chapter 7 Trustee, Linda S. Parks (hereafter “Trustee”), appears by Jennifer L. Goheen-Lynch of Hite, Fanning ...
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MEMORANDUM OPINION The Court held a hearing on the First Amended Joint Motion of United States, Chapter 7 Trustee and FDIC (“Plaintiffs/Movants” herein) for Contempt Against Brad Beutel and/or Tommy Thompson and Request for Sanctions (“Sanctions Motion”) on March 28, 2007. This is a core proceeding since the issue is whether, and to what extent, Brad Beutel and/or Tommy Thompson willi...
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MEMORANDUM OPINION I. UNDISPUTED FACTS AND PROCEDURAL HISTORY On June 19, 2004, the debtor, Anna Dis-pirito (the “Debtor”), executed a retail installment contract in connection with the purchase of a 2002 Ford Explorer. On February 6, 2007, the Debtor filed the within Chapter 13 proceeding and proposed Chapter 13 plan (“Plan”). In the Plan, the Debtor scheduled the claim of F...
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MEMORANDUM OF DECISION This decision concerns a contested matter arising from the Motion for Turnover Order filed by David R. DuBois, as Trustee of the Chapter 7 bankruptcy estate of the debtor, on May 3, 2006, and the debt- or’s Objection to Motion for Turnover Order filed on May 17, 2006. The core issue is whether any portion of the debtor’s federal and State of Illinois tax refunds...
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MEMORANDUM OF DECISION CONCERNING FINAL JUDGMENT On March 14, 2007, the Court entered its Memorandum of Decision and Order which preliminarily determined matters in this adversary proceeding. 1 On March 26, 2007, the defendant filed its “Defendant’s Motion for Reconsideration of March 14, 2007 Order and Relief Under Rules 7052, 9023 and/or 9024”. Because the order entered o...
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MEMORANDUM AND DECISION OF FINAL JUDGMENT/FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding was initiated by the complaint of Kenneth A. Manning, Chapter 7 Trustee (“Trustee”) of First Financial Associates, Inc. (“Debtor”) filed on June 29, 2001. The complaint designated five (5) defendants: Dorothy L. Wallace personally; Dorothy L. Wallace as the Personal Representati...
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MEMORANDUM OPINION Accredited Home Lenders, Inc. seeks to have stricken from the record a mortgage satisfaction piece indicating that a mortgage debtors Paul and Darla Lauver granted it in 2004 was satisfied. It also seeks to have the mortgage reinstated on the record. The chapter 7 trustees in these cases maintain that because a prospective purchaser of the property subject to t...
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MEMORANDUM Presently before me is a motion filed by NationsCredit Consumer Discount Company (also known as NationsCredit Financial Services Corp. and referring to itself as NCCDC), which motion seeks to terminate the bankruptcy stay pursuant to 11 U.S.C. § 362(d)(1) and also seeks to “bar[ ] Debt- or Roslyn Porter ... from filing another bankruptcy proceeding....” Amended Motion, Opening ...
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MEMORANDUM DECISION AND ORDER OVERRULING THE UNITED STATES TRUSTEE’S OBJECTION TO DEBTOR’S INCLUSION OF PAYMENT ON SURRENDERED VEHICLE IN MEANS TEST CALCULATION THIS MATTER came before the Court for hearing upon the United States Trustee’s (“UST”) Motion to Dismiss Chapter 7 Case Pursuant to 11 U.S.C. § 707(b) (“Motion to Dismiss”) (DE # 22). In the Motion to Dismiss, the UST argues t...
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MEMORANDUM DECISION ON DISMISSAL OF INVOLUNTARY PETITION This matter arises from an involuntary petition filed against Mountain Dairies, Inc. (“Mountain Dames”) by a single petitioning creditor, Schneider-Valley Farms, Inc. (“Schneider-Valley”). Mountain Dairies timely opposed entry of an order for relief, and the Court conducted an evidentiary hearing on June 27, 2007. For...
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OPINION 1 Before the Court are the Complaint and Motion of Fluor Enterprises, Inc. (“Fluor”) seeking payment of its pre-petition claims totaling $20,657,860.58 on theories of breach of contract, promissory es-toppel, misrepresentation, and under the Critical Fire Vendor Order entered by the Court early in this chapter 11 case. The ORC Distribution Trust (the “Trust”) op *69...
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Order Denying Motion to Dismiss CAME ON for consideration the foregoing matter. Defendant claims that the plaintiffs have failed to plead fraud with particularity, such that the complaint should be dismissed. The complaint attaches and incorporates a copy of the plaintiffs’ state court lawsuit. That pleading, in turn, details what the plaintiffs claim are facts sufficient to support claims of fra...
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MEMORANDUM DECISION A final hearing on plan confirmation in this case was held on April 10, 2007. At that hearing, I ruled that expenses included in calculating “projected disposable income” for chapter 13 debtors with above-average income are to be taken from the chapter 7 means test, § 707(b)(2), even if the debtors’ budget shows fewer or lower expenses. In so holding, I followed In re Guzma...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Safeco Insurance Company of America (“Safeco”) for summary judgment pursuant to Federal Rule of Bankruptcy Procedure 7056, which incorporates by reference Federal Rule of Civil Procedure 56, on the complaint filed by Walker Nell Consultants, Inc., not individually, but solely in its capacity as the trustee of the p...
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MEMORANDUM DECISION ON ALLOWANCE OF CLAIM Background and Facts In 1989, the United States Environmental Protection Agency (“EPA”) named various parties, including the Glidden Company and DeSoto, Inc., now known as Sherman Wire Company (the “Debtor”), as potentially responsible parties *449 (“PRPs”) liable for the cleanup of the Chemical Recycling, Inc. hazardous wast...
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MEMORANDUM DECISION AND ORDER Before the Court is a motion by the Debtor seeking to avoid a certain judicial lien against the Debtor’s interest in real property located at 20 Meadow Drive, Woodmere, New York (the “Property”) pursuant to 11 U.S.C. § 522(f)(1) on the basis that the judicial lien impairs the Debtor’s homestead exemption (the “Motion”). At issue is the appropriate method to v...
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*721 MEMORANDUM OPINION Once again the Court has been asked to consider, albeit from an ostensibly different perspective, the propriety of the sale of Farmland Industries’ refinery and fertilizer plant located in Coffeyville, Kansas (“Coffeyville Assets”) to Coffeyville Resources, LLC. This time the challenge comes in the form of a complaint by Plaintiff, GAF Holdi...
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MEMORANDUM DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I. BACKGROUND The defendants are siblings of chapter 7 debtor Bradley Kirchner. In 1998, Bradley “bought” his (and the defendants’) parents’ house at a foreclosure sale. At the time, the parents, Alan and Sandra Kirchner, were debtors in a chapter 13 case in this Court. They provided funds from their retirement accounts — exempt from ...
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MEMORANDUM DECISION Donna McClearn filed a voluntary chapter 7 petition on October 14, 2004. The chapter 7 trustee brought this adversary proceeding under § 544 to avoid Donna’s mortgage to DFZ Enterprises. DFZ did not respond to the complaint or summons, and the Court entered a default judgment in favor of the trustee on December 20, 2006. DFZ has moved to reopen the case and set aside the def...
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ORDER OVERRULING OBJECTION TO CONFIRMATION OF DEBTORS’ CHAPTER 13 PLAN This cause came on for hearing on May 25, 2007 to consider confirmation of the Chapter 13 Plan (Doc. #5) proposed by Christopher Lee LaDeaux and Holly Lyn LaDeaux (collectively, “Debtors,” or “Mr. LaDeaux” and “Mrs. LaDeaux”), and the Objection thereto (Doc. #26) interposed *50 by Regional Acceptance Corporation (“Regional...
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OPINION Hearings were held on November 8, 2006, January 10, 2007, and April 17, 2007, on objections to confirmation filed by secured creditors in each of these four cases filed under chapter 13 of the Bankruptcy Code. Four different creditors object to confirmation of the debtors’ proposed chapter 13 plans because the plans attempt to bifurcate the relevant secured creditor’s claim in...
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OPINION DENYING DEFENDANT’S OBJECTION TO PROPOSED JUDGMENT ON THE PROMISSORY NOTE CLAIM I. BACKGROUND RMM Records and Video Corporation (“RMM”) filed for bankruptcy in November 2000 and subsequently sold its assets to Universal Music & Video Distribution, Corp. (“Universal”) in exchange, in part, for money due under a promissory note (the “Note”). On August 16, 2001, Universal issued...
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MEMORANDUM OPINION AND ORDER IMPOSING SANCTIONS AGAINST MICHAEL D. ASSAF, ESQ. Attorney Michael D. Assaf, Esq. (“As-saf’) represented the plaintiff Roy Lubit, M.D. (“Lubit”) in this adversary proceeding seeking to deny a discharge to the debtor, John Chase (“Chase”), for a debt owed to Lubit for expert witness services Lubit provided to Chase in a state court child custody proceeding in C...
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MEMORANDUM OPINION This case came before the court on July 5, 2007, for hearing on a Motion for Relief Relating to Automatic Stay (the “Motion”) that was filed on behalf of the States of Alaska, Alabama, Arkansas, Arizona, California, Colorado, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Missouri, Montana, Nebraska, Nevada...
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Order Denying Reaffirmation Agreement CAME ON for consideration the foregoing matter. The debtors’ discharge was entered on July 16, 2007. The case was closed July 17, 2007. The debtors submitted a reaffirmation agreement with Wa-chovia Dealer Services on July 18, 2007. Reaffirmation agreements must be made prior to the entry of the debtors’ discharge. See 11 U.S.C. § 524(c)(1). The debtors...
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MEMORANDUM OPINION ON PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I. Introduction The American bankruptcy system is often described as having two primary objectives: first, ensuring the equitable and timely repayment of creditors with valid claims; and second, affording debtors a fresh start once they emerge from bankruptcy. I...
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MEMORANDUM OF DECISION ON MOTION TO RECONSIDER The question is whether and to what extent the automatic stay prohibits a secured creditor from communicating with a debtor about a delinquent debt secured by a mortgage. The answer, in my view, is not simple: it all depends on the context. STATEMENT OF FACTS Mr. Connor’s Bankruptcy Case Joseph A. Connor III owns a ...
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*21 Opinion Regarding Motion for Summary Judgment Gene Kohut, the chapter 7 trustee, filed this adversary proceeding to avoid a mortgage on the debtors’ real property. He seeks to avoid the mortgage as a preferential transfer pursuant to 11 U.S.C. § 547(b), asserting that the mortgage was perfected during the 90 days prior to the debtors’ bankruptcy. Wells Fargo has filed a motion for summa...
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OPINION GRANTING JUDGMENT TO PLAINTIFF This matter comes before the Court on plaintiffidebtor Ganton Technologies, LLC’s Adversary Complaint. The Complaint seeks to recover alleged preferential payments made to defendant Chemtool, Inc. prior to the filing of Plaintiffs bankruptcy petition. A trial was held on July 16, 2007. For the reasons set forth in this Opinion, the Court finds that P...
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OPINION AND ORDER ON OBJECTION TO CLAIM Introduction Carol Wu, the Chapter 7 Trustee, has objected to a claim in the amount of $2,335,283.99 that EOP-Peninsula Office Park, the debtor’s former landlord, filed against the estate of Connectix Corporation. The Trustee asserts that the correct application of § 502(b)(6) of the Bankruptcy Code limits EOP’s recovery to $446,246.99. The...
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DECISION AND ORDER The matter before the Court is the Debtor’s Motion to Proceed in Forma Pau-peris. The Court conducted a hearing on the motion in Roanoke on April 10, 2007. At that time, the Court took the matter under advisement and requested the Debt- or submit a memorandum of authorities in *284 support of her motion. After due consideration of the evidence and authorities, the motion is...
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DECISION AND ORDER The matter before the court is the Plaintiffs Complaint to Determine Discharge-ability. The Complaint seeks a declaration that the Plaintiff received a discharge of certain debt owed to the Defendant as well as damages for violation of the discharge injunction. After due consideration of the evidence and authorities and for the reasons stated herein, the relief sought b...
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ORDER On September 29, 2006, Gregory A. Wilson and Lori A. Wilson (Debtors) filed a voluntary petition for relief under the provisions of Chapter 13 of the United States Bankruptcy Code. This case is, therefore, governed by the new provisions contained in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPC-PA). 1 On November 29, 2006, the Trustee file...
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ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION This case came before the Court upon Motion for Preliminary Injunction (the *82 “Motion”). The Court conducted a hearing on the matter on February 6, 2007. The Court elected to take the matter under advisement. Upon the evidence and the arguments of the parties, the Court finds it appropriate to grant the Motion. Background This case ha...
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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This proceeding came before the upon Plaintiffs Motion for Summary Judgment (the “Motion”). Partners Trust Bank, Financial Federal Credit, Inc., the New York State Department of Taxation and Finance, and the New York Environmental Protection and Spill Compensation Fund (the “New York Oil Spill Fund”) fi...
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MEMORANDUM Before me is the debtor’s amended objection to the amended proof of claim, docketed as claim # 8, filed by Mr. Luan Tota, Va Branzino Restaurant. This creditor asserts an unsecured claim totaling $234,160.55 in connection with the lease of commercial real estate located at 259-61 South 17th Street, Philadelphia, Pennsylvania. Mr. Tota, the owner and operator of Branzino Restaurant at t...
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MEMORANDUM OPINION In this case, the parties seek a determination as to whether the debtors’ unborn child is a member of their household. Resolution of this issue bears directly on the duration of the debtors’ plan in chapter 13, as the size of their household in relation to their combined income determines whether the debtors’ family income is above or below the median for purposes of es...
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MEMORANDUM OPINION This matter is before the court on “Creditor Global Property Services, Inc.’s Motion for Sanctions for Spoliation and Violation of the Court’s July 11, 2005 Order and Motion to Compel Discovery,” and Kmart’s response thereto. The court has conducted a trial on the issues raised in connection herewith and now enters its findings of fact and conclusions of law in accordan...
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Order Sustaining Trustee’s Objection to Confirmation THIS MATTER is before the Court on the Chapter 13 Trustee’s (“Trustee”) Objection to Confirmation (“Motion”) under 11 U.S.C. § 1325(b)(1)(B) 1 . The basis for the Trustee’s objection is that the joint debtors, Eugene Goins and Angelia Alford Goins (“Debtors”), are not paying all of their projected disposable income under the plan. A heari...
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Decision and Order Denying Motion to Reconsider Order Granting Debtor’s Objection to Amended Proof of Claim of CitiMortgage, Inc. CAME ON for consideration the foregoing matter. For the reasons stated, the motion is denied. Background Facts The debtors filed this bankruptcy case on April 2, 2007. On April 4, 2007, Citi-Mortgage, Inc. filed a proof of claim for $14,883.90 with arrearage in the amo...
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ORDER Before the Court is the Motion for Stay Pending Appeal filed by Robert O. Davis (hereinafter the “Debtor”). The Debtor seeks entry of a stay pending his appeal of an order entered by this Court on May 29, 2007 and of an order denying his motion for reconsideration of the May 29th Order, which was entered by this Court on June 22, 2007. Additionally, Debtor’s notice of appeal appears to ...
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ORDER GRANTING PETITIONING CREDITORS’ MOTION FOR SUMMARY JUDGMENT THIS CASE was heard June 21, 2007, on the Motion for Summary Judgment filed by Petitioning Creditors Vannoy’s Tires, Inc., Gulf States Auto Auction, LLC, *76 Fact-0-Bake of Pensacola, Inc., and Automotive Alternative, LLC. The Creditors’ Motion for Summary Judgment seeks a determination that they are entitl...
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ORDER DENYING MOTION TO COMPEL REJECTION OF PATENT AND TECHNOLOGY LICENSE [AGREEMENT] AND/OR FOR RELIEF FROM THE AUTOMATIC STAY TO EXERCISE APPLICABLE NONBANKRUPTCY RIGHTS THIS MATTER is before the Court on the Motion to Compel Rejection of Patent and Technology License and/or for Relief from the Automatic Stay to Exercise Applicable Nonbankruptcy Rights (“Motion”) filed by Tubus Baue...
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OPINION The debtor in this case filed a petition for relief under chapter 13 on January 16, 2007. In her chapter 13 plan, she proposes to pay the trustee $579.82 per month for sixty months, which would allow the trustee to pay general unsecured creditors a pro rata share of approximately 22%. As reflected on schedule I, the debtor does not have any dependents. The parties agree that the deb...
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*816 ORDER GRANTING OBJECTION TO CONFIRMATION This matter is before the Court on HSBC Auto Finance’s objection to confirmation (Doc. 21), the parties’ stipulation of facts (Doc. 26), and the parties’ post-hearing memoranda (Doc. 27, 28). A hearing was held on June 19, 2007. The issue before the Court is whether the Debtor’s purchase of a vehicle was for “personal use” pursuant to the hangin...
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MEMORANDUM The debtor has moved to value the collateral of Americredit, a 2005 Ford F150 pickup truck. If the motion is granted, Americredit’s secured claim will be “stripped down” to the value of the truck. Americredit objects to the motion, contending that because it financed the debt- or’s purchase of the truck, its claim cannot be stripped down. The motion will be denied and the objection...
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DECISION & ORDER BACKGROUND On March 24, 2005, Paul W. O’Brien (the “Debtor”) filed a petition initiating a Chapter 7 case, and Richard P. Vullo, Esq. (the “Trustee”) was appointed as his Chapter 7 Trustee. On his Schedule I, Statement of Current Income, the Debtor indicated that his estimated average monthly income as an investment banker with Capital Formation Group of Roc...
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MEMORANDUM DECISION DENYING TRUSTEE’S MOTION TO TURN OVER PROPERTY PURSUANT TO 11 U.S.C § 542 This Chapter 7 dispute raises the question of what portion of an income tax refund filed jointly between a debtor and a non-debtor spouse must be turned over to the Chapter 7 Trustee (“Trustee”) as property of the debtor’s bankruptcy estate pursuant to 11 U.S.C. § 541. In this case, the Trustee deman...
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ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT RIGHTCHOICE MANAGED CARE, INC. d/b/a BLUE CROSS BLUE SHIELD The matter before the Court is the Motion for Summary Judgment (“Motion”) filed by Defendant RightCHOICE Managed Care, Inc. d/b/a Blue Cross Blue Shield (“Blue Cross”), the affidavit, exhibits, and legal memorandum in support of the Motion; the opposition to the Motion and leg...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon AmSouth Bank’s Objection to Debtor’s Claim of Exemptions. The Court conducted a hearing on the matter on December 13, 2006. In lieu of oral argument, the Court directed the parties to submit mem-oranda in support of their respective positions. Upon the evidence and the arguments of the parties, the Court make...
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MEMORANDUM OPINION Stifel, Nicolaus & Company (“Stifel”) contends in this adversary proceeding that a $98,549.53 judgment Stifel obtained against Debtor in state court is excepted from discharge under 11 U.S.C. § 523(a)(2)(A). Stifel also asserts that Debtor should not be granted a discharge pursuant to either 11 U.S.C. §§ 727(a)(4) or (a)(5). The Court will enter judgment in favor of Stifel on...
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MEMORANDUM OF OPINION The plaintiff Cairns & Associates, Inc. (the “Debtor”) commenced this adversary proceeding against defendant Conopeo, Inc. (“Unilever”) to recover $1,183,613.00 for claims for breach of contract, quantum meruit and promissory estoppel stemming from non-payment for public relations services rendered for three Unilever brands — Snuggle, Pond’s and Vaseline Intensive Care Lotio...
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ORDER This matter constitutes a core proceeding, over which this Court has subject matter jurisdiction. See 28 U.S.C. § 157(b)(2)(A); In re Lehtinen, 332 B.R. 404 (9th Cir. BAP 2005) (attorney disciplinary matters arising during the course of an attorney’s representation of a debtor “in matters central to the administration” of the debtor’s case fit “comfortably within the ambit of a core procee...
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*746 FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court for a trial on January 24, 2006, January 25, 2006, January 26, 2006, January 31, 2006, and February 1, 2006. In view of the voluminous exhibits (approximately 3,000) and the record before the Court, the Court elected to take the matter under advisement and directed the parties to file post-tria...
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Table of Contents Page Jurisdiction.176 The Facts.176 (a) Background — the Gianopoulos factor.176 (b) Preparations for an auction of the franchised properties.177 (c) Stalking horse bidders; adjournment of the auction.178 (d) The Matrix Contract; cancellation of the auction.179 (e) The Matrix/ZPG relationship.180 (f) Sale “as is, where is”; discl...
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371 B.R. 589 (2007) 2007 BNH 027 In re FELT MANUFACTURING CO., INC., f/k/a Foss Manufacturing Co., Inc., Debtor. Official Committee of Unsecured Creditors, on behalf of the bankruptcy estate of Felt Manufacturing Co., Inc., f/k/a Foss Manufacturing Co., Inc., Plaintiff, v. Stephen Foss, Patricia Foss, Jenifer Foss Smyth, Kevin Sexton, Douglas Kinney, Marcella Darling, John Smyth, Dennis Foss, Dav...
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OPINION Post-petition, the chapter 11 2 debtor, which had self-insured its state statutory *665 workers’ compensation obligations, defaulted on those obligations. The state fund established by statute to make the defaulting debtor’s compensation payments objected to the debtor’s plan, arguing that its claim was entitled to priority as an excise tax under § 507(a)(8)(E). The bankruptcy court...
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OPINION We address whether postpetition appreciation of exempt property is to be treated the same under the federal exemption scheme as under a state’s exemption scheme. We conclude that controlling Ninth Circuit authority involving state homestead exemptions, which holds that the bankruptcy estate is entitled to postpe-tition appreciation in excess of the maximum value permitted to be ex...
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ORDER SUSTAINING CREDITOR’S OBJECTION TO TRUSTEE’S FINAL REPORT AND GRANTING CREDITOR’S MOTION TO PERMIT PAYMENT OF PROOF OF CLAIM OF CREDITOR The Court conducted a hearing on May 3, 2007, on Creditor, Donna Phillips’ (“Ms. Phillips”) Objection to Trustee’s Final Report of Estate and Proposed Dividends and Application for Compensation and Motion to Permit Payment of Proof of Claim of Donna Phil...
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OPINION The bankruptcy planning dispute presented in these related appeals requires us to transit waters made turbulent by cross-currents of exemptions, fraudulent transfer, denial of discharge, and divorce. We publish to dispel the myth that the toleration of bankruptcy planning for some purposes insulates such planning from all adverse consequences — it does not. In matters of bankruptc...
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ORDER FOR JUDGMENT The above entitled matter came before the Court for trial on June 25, 2007. Appearances are noted on the record. The parties elected to treat the matter as appropriate for summary judgment and filed briefs in lieu of presenting testimony. Based upon the pleadings, files, and arguments of counsel, the Court now makes this ORDER pursuant to the Federal and Local Rules of Bankru...
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MEMORANDUM OPINION 1 Before the Court is the chapter 7 Trustee’s uncontested Motion for Entry of an Order Modifying Final Order Approving the Stipulation Authorizing Chapter 7 Trustee to Use Cash Collateral and Agreement for Liquidation of Debtor’s Collateral and Approving Limited Notice (the “Modification Motion”). For the reasons set forth below, the Modification Motion will be denied. I. B...
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MEMORANDUM DECISION AND ORDER Before the Court is the application of Sheldon Good & Company Auctions, NorthEast, LLC (“Sheldon Good”) for an order directing Aston Baker (the “debtor”) to reimburse Sheldon Good for legal fees and expenses incurred in connection with *491 the court-approved auction of debtor’s real properties (the “Application”). Sheldon Good seeks the tota...
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*670 MEMORANDUM OF DECISION Overruling the Trustee’s Objection to the Debtors’ Chapter 13 Plan and Granting Confirmation of the Plan This case presents questions of first impression in this District concerning Chapter 13 plan confirmation requirements for above-median debtors under section 1325(b), as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act...
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Benjamin L. Eagle (“Debtor”) appeals from two bankruptcy court 1 orders. One order granted an extension of time to file a complaint to seek a denial of the Debtor’s discharge and to seek a determination of the dischargeability of a debt to Bank of America, N.A. (“Creditor”). This order is interlocutory. Travers v. Dragul (In re Travers), 202 B.R. 624, 626 (9th Cir. BAP 1996). The Debtor faile...
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OPINION This case comes before the Court on the Motion of Brock M. Campbell for Summary Judgment on a Complaint filed by Gary and Peggy Johnston. The Complaint seeks to except from discharge, pursuant *888 to 11 U.S.C. § 523(a)(2)(A), a debt allegedly owed to the Johnstons by Mr. Campbell on the grounds that Mr. Campbell fraudulently induced the Johnstons to purchase a 15-acr...
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MEMORANDUM REGARDING SUMMARY JUDGMENT Mary Ellen Meddleton represented the debtor, Karsten Rodvik, in a domestic violence action in October of 2003. She also represented him in a subsequent divorce proceeding. The divorce proceeding was contentious and involved the custody of three young children. Meddleton withdrew from her representation of Rodvik in November of 2004, prior to his divorce trial...
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ORDER DENYING DEBTOR’S EMERGENCY MOTION FOR WRIT OF MANDAMUS, HABEAS CORPUS, OR SIMILAR RELIEF This case came before the Court upon Debtor’s Emergency Motion for Writ of Mandamus, Habeas Corpus, or Similar Relief. Debtor filed this Chapter 7 bankruptcy case on May 21, 2007. On Schedule E of his bankruptcy petition, Debtor lists the State of Wisconsin, which claims he owes in excess of $36,000...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO CONFIRMATION THIS MATTER is before the Court on Confirmation of the Debtors’ Third Amended Chapter 13 Plan (the “Plan”) (Doc. 44). The Trustee has objected to confirmation of the Plan (Doc. 45) on the ground that the Debtors understated their income and failed to commit their entire projected disposable income to be received in the applicable co...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon the Objection to Claim 7 filed by Alexander G. Smith (the “Trustee”). The Court conducted a hearing on the matter on January 23, 2007. In lieu of oral argument, the Court directed the parties to submit briefs in support of their respective positions. Upon the evidence and the arguments of the parties, the Cou...
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DECISION OVERRULING DEBTOR’S OBJECTION TO ALLOWANCE OF CLAIM This matter is before the court on the Debtor’s Amended Objection to Allowance of Claim of AMC Mortgage Services [Doc. 25] and the Response and Memorandum filed by AMC Mortgage Services [Doc. 29 and 36]. Following a status conference, the parties submitted supplemental briefs in support of their positions [Docs. 41 and 42], ...
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MEMORANDUM OF OPINION This is the debtor Rodger Saffold’s fourth bankruptcy filing in almost ten years. Leader Mortgage Co. filed a motion to dismiss the case and for sanctions in the form of in rem relief or a bar against re-filing based on the repeat filings. 1 The debtor consented to dismissal, but objected to the sanction request. The court held an evidentiary hear...
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ORDER DENYING PLAINTIFF'S MOTION TO STRIKE DEFENDANT RICHARDSON’S NOTICE OF APPEAL More than fifteen years ago, defendant Theodore Carlton Richardson, a former Florida attorney, misappropriated funds from his client, the Jacqueline N. Overton Trust (the “Trust”). He then sought to *187 discharge the debt by filing for bankruptcy relief in the District of Columbia in 1994....
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ORDER DENYING WACHTER’S MOTION FOR SUMMARY JUDGMENT This adversary proceeding came before the Court on May 1, 2007, on the Motion for Summary Judgment (Doc. No. 9) filed by Allan Wachter, M.D., individually and on behalf of his marital community, Seth Chemicals, Inc., and Nathan M. Technologies Limited Partnership (“Wachter”), and on the Debtor’s Response (Document No. 13). The d...
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ORDER DENYING WACHTER’S MOTION FOR SUMMARY JUDGMENT This adversary proceeding came before the Court on May 1, 2007, on the Motion for Summary Judgment (Doc. No. 13) filed by Allan Wachter, M.D., individually and on behalf of his marital community, Seth Chemicals, Inc., and Nathan M. Technologies Limited Partnership (“Wachter”), and on the Debtor’s Response (Document No. 17). The ...
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MEMORANDUM OPINION These matters come before the Court on the motion of Richard G. Arns (the “Debt- or”) for sanctions pursuant to 11 U.S.C. §§ 105 and 524 against LaSalle Bank, NA f/k/a LaSalle Bank, F.S.B., a division of ABN AMRO Mortgage Group, Inc. (“La-Salle Bank”), and on the motion of LaSalle Bank to clarify or modify the order confirming the Debtor’s plan of reorganization. For the reas...
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JUDGMENT Based upon the Findings of Fact and Conclusions of Law made in the attached Order of the Court, the motion of Bank of America, N.A. to vacate the order confirming Ruby L. Sawyer’s (“Debtor”) chapter 13 plan as to Bank of America, N.A. is granted and Debtor shall amend her chapter 13 plan within ten (10) days of the entry of the Order. ORDER This matter comes before the Court on mot...
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JUDGMENT Based on the Findings of Fact and Conclusions of Law as recited in the attached order of the Court, the Court denies Debt- or’s claim for relief for violation of the automatic stay. ORDER This matter comes before the Court on the complaint filed by Patrick Andre Gri-sard-Van Roey (“Debtor”) seeking compensatory and punitive damages for Auto Credit Center, Inc.’s (“Auto Credit”) all...
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MEMORANDUM OPINION I. INTRODUCTION On August 3, 2007, the Court held a hearing on the confirmation of the Chapter 13 Plan dated May 18, 2007 (Doc. No. 10) (the “Plan”) filed by Robert and Brenda Stevens (the “Debtors”) and the Objection by the Town of Winchester to Confirmation of Chapter 13 Plan (Doc. No. 18) (the “Objection”). After consideration of the arguments and statements by the par...
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MEMORANDUM OPINION This adversary proceeding was tried on January 10, 2007, on the Amended Complaint filed by James Feltman, Trustee and Plaintiff (“Trustee” or “Plaintiff’) *693 against Defendant City National Bank of Florida (“City National”). The only count that remained for trial was Count I, which alleges that certain transfers made by debtor, Sophisticated Communica...
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MEMORANDUM OPINION ON TRUSTEE’S OBJECTIONS TO AMPAC’S AND TRADITION BANK’S PROOFS OF CLAIM For the reasons set forth below, the Court sustains the Trustee’s objection to Am-Pac Tire Dist., Inc. and Tradition Bank’s proofs of claim. This Court has jurisdiction of this proceeding pursuant to 28 U.S.C. § 1334. This is a core proceeding under 28 U.S.C. § 157. Background Jim ...
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MEMORANDUM OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF CHAPTER 11 TRUSTEE OR, IN THE ALTERNATIVE, CONVERSION OF THE CASE TO A CASE UNDER CHAPTER 7 This matter is before the Court on motions filed by the U.S. Trustee and several parties in interest, seeking the appointment of a chapter 11 trustee pursuant to § 1104 of the Bankruptcy Code and Bankruptcy Rule 2007.1, or in the altern...
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MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT The plaintiffs are creditors in both of the above chapter 7 cases. On January 27, 2006, they filed these adversary proceedings for a determination that debts owed to them are non-disehargeable. On March 28, 2007, they filed the instant motions for summary judgment for the reason that a judgment in a Georgia state court precludes any def...
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MEMORANDUM OF OPINION AND ORDER The matter before the Court is the Trustee’s Motion for Order: A) Approving the Settlement of Claims Against the Settling Banks; B) Approving the Settlement of Certain Claims by the Settling Banks Against the Estate and Settling Partners; C) Allowing Certain Claims in Favor of Certain Settling Banks; D) Authorizing the Trustee to Enter into Releases; an...
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MEMORANDUM DECISION REGARDING CREDITOR’S POST-DISCHARGE ATTEMPTS TO COLLECT JUDGMENT A debtor’s discharge in bankruptcy would not do her much good if her pre-petition creditors could still garnish her wages to pay their claims. The creditor in this case has a creative theory for doing just that: he argues that her discharge did not affect his claim against her husband, that her husband ha...
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ORDER AND NOW, for the reasons set forth in the accompanying Opinion, the Objection of Americredit Financial Service, Inc. to Debtor’s Motion to modify his chapter 13 plan is OVERRULED and Debtor’s Motion is GRANTED. OPINION The issue is this ease arises at the intersection of two provisions of 11 U.S.C. § 1325(a). Section 1325(a)(9*) provides that the procedures for bifurcating...
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ORDER OVERRULING TRUSTEE’S OBJECTION TO CONFIRMATION THIS CAUSE came before the Court on January 30, 2007 upon the Trustee’s Objection to Confirmation. The Trustee’s objection to confirmation is based on three issues raised by the Debtor’s Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income also known as Form B22C (“CMI Form”). This hearing focused o...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION FOR SUMMARY JUDGMENT I.INTRODUCTION Before the Court at this time is the motion of the Defendant, M.J.C.C. Realty L.P. (hereafter, “MJCC”), for summary judgment on the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth and Eleventh Counts of the Plaintiffs Complaint. On the record as a whole, and for the reasons stated more fully below, t...
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MEMORANDUM OPINION Complaint Objecting To Discharge Of Debtor Plaintiff Patrick Williams seeks to have debtor Michael A. Hoza denied a general discharge in accordance with § 727(a)(2)(A) of the Bankruptcy Code. He maintains that, less than months before voluntarily commencing his bankruptcy case, debtor transferred three tracts of real property he owned with actual intent to hinder, delay o...
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court for a trial regarding the Complaint filed by Bemas Construction (“Plaintiff’) against David Allan Dorland, f/o/d/s Ben Do Volt Construction, LLC (“Defendant Dorland”) and Matthew Lloyd Varholdt, f/o/d/s Ben Do Volt Construction, LLC, o/d/s Clear Creek Civil, Inc. (“Defendant Varholdt”) (together Defendant Dorland and Defendant...
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MEMORANDUM OF DECISION In this adversary proceeding, John Kendall (the “Trustee”), the trustee of the *102 above-captioned chapter 7 debtor (the “Debtor”), seeks to avoid under 11 U.S.C. § 547(b) and recover under 11 U.S.C. § 550(a)(1) from defendant Burlingame Capital Partners, II, L.P. (“Burlingame”) the value of the transfers of security interests in the Debtor’s accounts ...
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ConAgra Grocery Products Company and ConAgra Foods, Inc. (collectively “ConAgra”) appeal an order of the bankruptcy court avoiding preferential transfers made to them by Furr’s Supermarkets, Inc. (“Debtor”) and awarding prejudgment interest on the recovered amounts. 1 To describe the matter as hotly contested would be an understatement. ConAgra now asserts the bankruptcy court erred ...
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Memorandum Opinion Before the Court is the Motion to Strike Discharge and Reappoint Chapter 7 Trustee (the “Motion”) filed by Thomas A. Big-gins (“Biggins”). The motion primarily seeks to undo the discharge order entered in this case on March 20, 2007 so that Biggins may file a complaint objecting to the granting of a discharge to the Debtor. 1 Upon consideration of the Mot...
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS Defendant Consolidated Edison Company of New York, Inc. (“Con Edison”) moved to dismiss portions of the adversary complaint (“Complaint”) filed by the debt- or, Andrew Velez Construction, Inc. (“Debtor” or “Velez”). Velez was the general contractor on a major construction project for Con Edison in Brooklyn...
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ORDER DENYING MOTION FOR STAY The Appellant has filed a motion for stay of the order on appeal. The motion is DENIED as untimely. BACKGROUND The Appellant represented the Debtor in her chapter 13 case. The Debtor subsequently moved to dismiss the case, and the bankruptcy granted the motion to dismiss but retained jurisdiction over the Appellant’s compensation. On April 3, 2007, the court ...
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*675 ORDER RE: COMPLAINT TO ESTABLISH EXCEPTION TO DISCHARGE § 523 AND FOR DAMAGES This matter came before the undersigned for trial on April 10 and 11, 2007. Plaintiffs Michael and Charlotte Cain were represented by Jay B. Marcus and John Courtade. Debtor/Defendant Theodore B. Burghoff appeared at trial pro se. After presentation of evidence and argument, the Court took the matt...
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MEMORANDUM OPINION THIS MATTER came before the Court for hearing on May 24, 2007 upon Defendant’s Motion to Dismiss this adversary proceeding pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the Plaintiffs Complaint (the “Complaint”) fails to state a claim upon which relief can be granted. 1 C. Scott Meyers appeared on behalf of Plaintiff Ga...
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MEMORANDUM OPINION THESE MATTERS came before the Court for hearing on April 25, 2007 upon the Plaintiffs’ Motions for Summary Judgment. Steven M. Defalco appeared on behalf of Plaintiffs KGB International, Inc. (“KGB International”) and Channel Imports, Inc. (“Channel”); Kate Ellis appeared on behalf of Plaintiffs Armstrong Marketing (“Armstrong”), G. Cefalu & Bros., Inc. (“Cefalu”), and ...
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ORDER REGARDING DEBTORS’ OBJECTION TO CLAIM NO. 4 AND CREDITOR’S OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN DaimlerChrysler Financial Services Americas, L.L.C. (“Creditor”), successor in interest to DaimlerChrysler Services North America, L.L.C., objects to confirmation based on the plan’s treatment of its 910-car claim. 1 In a related matter, Debtors object to the amount of Creditor’s 910-...
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DECISION AND ORDER DISMISSING COMPLAINT On May 24, 2006, Wayne Demar (the “debtor” or “Demar”) filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. On August 21, 2006, Carolyn Schaefer (“Schaefer” or “plaintiff’) filed an adversary proceeding seeking to have her claim against the debtor declared non-dischargeable pursuant to 11 U.S.C. §§ 523(a)(2), 523(a)(ll),...
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MEMORANDUM ORDER GRANTING PLAINTIFF SUMMARY JUDGMENT ON COUNT II OF THE COMPLAINT This matter came before the Court for hearing on July 2, 2007 at 2:00 p.m. on Plaintiff Soneet Kapila’s Motion for Summary Judgment (DE # 161) on his claims to avoid a $10,000,000 transfer to Defendant, Espirito Santo Bank (the “Bank”). For the reasons set forth herein, the motion is GRANTED. INTR...
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*431 ORDEÉ SUSTAINING IN PART AND OVERRULING IN PART CREDITOR’S OBJECTION TO CONFIRMATION This matter is before the court on the Objection to Confirmation of Chapter 13 Plan filed by American Express Travel Related Services Company, Inc. and American Express Centurion Bank (hereinafter collectively referred to as “American Express”) and the debtors’ response thereto. The Objection to Confir...
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ORDER RE: COMPLAINT OBJECTING TO DISCHARGE The above-captioned matter came before the undersigned on April 25, 2007. The U.S. Trustee was represented by Assistant U.S. Trustee Janet Reasoner. John Titter represented Debtor Matthew J. Smith. After the presentation of evidence and argument, the Court took the matter under advisement. The time for filing briefs has now passed and this matter is re...
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MEMORANDUM DECISION AND ORDER FOR JUDGMENT This adversary proceeding came on before the Court for trial. The Plaintiff appeared by its attorneys, Bradley J. Ayers and Wendy M. Canaday. Defendant Cindy Neumann appeared personally and by her attorney, Andrew Engebretson. The following memorializes the decision on the issues presented at trial, based on the evidence received and the argument...
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MEMORANDUM OPINION This matter comes before the Court on the objection to creditor Daimler Chrysler’s (“Creditor”) secured claim filed by debtors William Levi Ross and Chanelle Lashun Hill (“Debtors”). The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334(b) and 157(a) and (b) and it is a core proceeding which the Court may *658 hear and determine purs...
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AMENDED MEMORANDUM OPINION PARTIALLY GRANTING AND PARTIALLY DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (To Correct Signature Date Only) In this adversary proceeding, Scott R. Fransen, the Chapter 7 Trustee, filed a Motion for Partial Summary Judgment (the “Motion”) (Doc. No. 34) in connection with six of the nine counts contained in his Complaint against the defendants, the ...
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MEMORANDUM The former chapter 7 debtors, Dennis and Peggy Ann Antonious, have filed a motion to reopen their closed chapter 7 bankruptcy case, pursuant to 11 U.S.C. § 350(b), solely in order to “accord relief to the co-Debtor, Peggy Ann Antonious.” See Motion, Introductory Paragraph. Mrs. Antonious contends that creditors Bryon and Mayolia Stevens have taken actions that violate the discharge...
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OPINION APPROVING THE DEBTOR’S DISCLOSURE STATEMENT, AND CONFIRMING HIS PLAN This matter was before the Court on April 5, 2007, for a combined hearing on approval of the Debtor’s disclosure statement and confirmation of his plan of reorganization. The Debtor appeared by counsel Thomas Mullinix and Joanne Stutz. Creditor Bankers Healthcare Group did not object to the plan, but did object t...
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DECISION ON APPLICATION TO APPROVE SETTLEMENT AND CROSS-MOTION SEEKING ABSTENTION Before the Court is the application of the plaintiff Simon Liani (“Liani”) and one of the defendants, Sheldon Good & Company Auctions, NorthEast, LLC (“Sheldon Good”), for an order pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure settling this adversary proceeding over the object...
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ORDER DENYING MOTION TO REVOKE TECHNICAL ABANDONMENT AND MOTION FOR TURNOVER THIS CAUSE came on to be heard on July 12, 2007 upon the Motion to Revoke *349 Technical Abandonment and Motion for Turnover (“Motion to Revoke Abandonment”), filed by Robert C. Furr, chapter 7 trustee (“trustee”). By way of the Motion to Revoke Abandonment, the trustee seeks to vitiate an abando...
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OPINION REGARDING MCI COMMUNICATIONS CORPORATION’S MOTION FOR SUMMARY JUDGMENT AND MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY AND GENERAL PHYSICS CORPORATION’S AND GP STRATEGIES CORPORATION’S CROSS-MOTION FOR DISCOVERY Before the Court is MCI Communications Corporation’s (“MCI”) Motion for *97 Summary Judgment and Motion for a Protective Order Staying Discovery, dated Febr...
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ORDER GRANTING MOTION FOR RELIEF FROM CO-DEBTOR STAY Movants, Gregg Smith, Lisa Smith, and the Mark B. Vogt Revocable Trust dated 12/12/96, seek relief from a stay of action against co-debtors pursuant to 11 U.S.C. § 1301(c). This is a core proceeding under 28 U.S.C. § 157(b)(2)(G) over which the Court has jurisdiction pursuant to 28 U.S.C. § 1334(b), 157(a), and 157(b)(1). Because th...
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ORDER For the reasons set forth in an Opinion entered this day, IT IS HEREBY ORDERED that judgment is entered in favor of the Defendant, Josef Kucera, and against the Plaintiff, Hickory Point Bank & Trust, FSB, on the Complaint to Determine Dischargeability of Debt. The Defendant’s obligations to the Plaintiff are not excepted from the discharge previously granted to the Defendant. ...
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MEMORANDUM OPINION This matter was commenced by the filing of a motion by Pauletta Ann Gresham (“Debtor”) against America’s Servicing Company (“ASC”) and Pramco II, L.L.C. (“Pramco”) for a determination of lien status. The Court treated the motion as if it were filed as a complaint initiating an adversary proceeding under Rule 7001(2). The Chapter 13 trustee (the “Trustee”) was subsequent...
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MEMORANDUM Presently before me are the motions of defendants Delta Funding Corporation and Wells Fargo Bank, Minnesota, N.A. to *136 compel arbitration as to two counts of the plaintiffs amended complaint, 1 Count II, styled “HOEPA Recoupment,” and Count III, styled “UDAP.” “A motion to compel arbitration calls for a two-step inquiry into (1) whether a valid a...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S CORRECTED MOTION FOR SUMMARY JUDGMENT Before the Court is Defendant’s Corrected Motion for Summary Judgment (Adv. Doc. 13) (the “Motion”), filed by Defendant Michael E. Hentges (“Mr. Hentges”) on April 4, 2007; the Corrected Memorandum in Support of Defendant’s Corrected Motion for Summary Judgment (Adv. Doc. 16), filed by Mr. Hen...
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OPINION INTRODUCTION Amrane Cohen, a Chapter 13 2 Trustee, challenges the bankruptcy court’s order confirming the Chapter 13 plan of Rudy Lopez, the debtor in this case. Mr. Lopez’s plan permits him to pay his postpetition payments on notes secured by deeds of trust on his residence (“maintenance payments”) directly to his creditors, while simultaneously allowing h...
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OPINION The bankruptcy court ruled that creditor held by assignment a valid purchase-money security interest in debtors’ vehicle purchased within the 910-day period immediately preceding the date debtors filed their voluntary chapter 13 2 petition, making creditor’s claim subject to the anti-cramdown provision in the “Hanging Paragraph” of § 1325(a). As a result, the bankruptcy court held tha...
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Appellant DaimlerChrysler Financial Services North America LLC (“Daimler-Chrysler”) appeals the bankruptcy court’s Order confirming the Chapter 13 Plan filed by the Debtor, Lee Thomas Wilson (“Debtor”). Central to this appeal is the question of whether the “hanging paragraph” at the end of 11 U.S.C. § 1325(a)(9) relieves the Debtor of the obligation to pay post-petition interest to the secured ...
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Appellant Christopher J. Redmond (“the Trustee”) appeals an order entered by the United States Bankruptcy Court for the District of Kansas declining to apply the doctrine of marshaling to Debtor’s tax refund, which was assigned pre-petition to Debtor’s counsel for his flat-fee retainer. The Trustee argues that the bankruptcy court erred because (1) its ruling assessed the burden of Debtor’s att...
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MEMORANDUM OPINION ON MOTION TO DISQUALIFY JUDGE Leo Stoller is a debtor proceeding pro se in a case under Chapter 7 of the Bankrupt *621 cy Code, 11 U.S.C. § 101 et seq., presided over by the undersigned. On May 9, 2007, Mr. Stoller filed a Motion to Disqualify Judge under 28 U.S.C. §§ 144 and 455. On May 21, 2007, the undersigned entered an Order for a More Definite Statement requiring ...
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MEMORANDUM OPINION These matters come before the Court on the motions of Glenn B. Stearns, the Chapter 13 Standing Trustee (the “Trustee”) for both Kimberle A. Andreas and Irene Cegin (collectively the “Debtors”), against Susan G. Castagnoli (“Ms.Castagnoli”), as attorney for the Debtors, for relief under 11 U.S.C. §§ 329 and 330 and Federal Rules of Bankruptcy Procedure 2017, 9020, a...
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AMENDED ORDER ON MOTION OF UNITED STATES TRUSTEE TO DISMISS The United States Trustee has moved to dismiss this case under both subsections (b)(2) and (b)(3)(B) of 11 U.S.C. § 707. At the center of the motion is whether debtors can include in their “Means Test” calculation payments they would otherwise owe on property they intend to surrender. The United States Trustee says they should no...
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ORDER SUSTAINING, IN PART, GREEN TREE’S OBJECTION TO CONFIRMATION OF PLAN Creditor Green Tree Servicing, LLC, objects to confirmation of the Debtors’ Chapter 13 Plan on the ground that, among other things, the Plan violates 11 U.S.C. § 1322(b)(2) because it proposes to pay Green Tree less than the full amount of its claim which is secured by a manufactured home. Alternatively, Green T...
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ORDER ON MOTION TO AVOID JUDICIAL LIEN OF THE CADLE COMPANY The Debtors’ Chapter 7 case was filed on July 30, 2003. At that time, the Debtors owned a parcel of real estate at 1500 Coleman Bridge Road, Cobbtown, Georgia (the Property), that was valued at approximately $24,000.00 and secured by a $24,000.00 mortgage. Previously, on December 5, 2001, a judgment was entered against the Debtors an...
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MEMORANDUM AND ORDER ON THE UNITED STATES TRUSTEE’S MOTION TO DISMISS The United States Trustee (the Trustee) has filed a Motion to Dismiss Pursuant to *379 Section 707(b) in this case. See Dckt. No. 21 (December 18, 2006). A hearing on this matter was held on April 4, 2007. See Dckt. No. 27 (April 4, 2007). Both parties submitted post-hearing briefs in support of their arguments. See ...
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*534 MEMORANDUM AND ORDER ON THE MOTION OF ERNST & YOUNG LLP AND ERNST & YOUNG CORPORATE FINANCE LLC TO COMPEL ARBITRATION AND STAY ADVERSARY PROCEEDING The Plaintiff, as Trustee for the Friedman’s Creditor Trust (hereinafter, the Trustee), filed this adversary proceeding against the Defendants on January 12, 200?. See Dckt. No. 1 (January 12, 2007). Defendants Ern...
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MEMORANDUM OPINION AND ORDER The Court must decide whether it can confirm a Chapter 13 plan that expressly allows debtors, without the necessity of later meeting the requirements for modifying a plan under 11 U.S.C. § 1329, 1 to terminate their plan before the expiration of 3 or 5 years (depending on whether the debtor is a below or above-median income debtor). For the reasons ...
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OPINION AND ORDER I. Facts The debtor filed a voluntary petition for relief on July 23, 2007, under Chapter 11 of Title 11 of the United States Bankruptcy Code (See Dkt. No 1). The debtor has continued to operate its business as debt- or-in-possession (hereinafter “DIP”). On July 23, 2007, the DIP filed a Motion for Entry of (A) Bridge Order and (B) Final Order (i) Prohibiting u...
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MEMORANDUM OPINION ON COMPETING MOTIONS FOR PAYMENT OF FUNDS HELD IN COURT REGISTRY This Chapter 11 case is before the court on competing claims to some $22,176.75 deposited into the registry of the court (“Registry Funds”) after “final” distributions were made by the liquidation trustee in 2004. The Registry Funds represent the sum of uncashed distribution checks alleged to have been issued ...
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MEMORANDUM OPINION This Memorandum Opinion constitutes the Court’s findings of fact and conclusions of law pursuant to Fed. R. Bankr.P. 7052. The matter before this Court is a Motion for Summary Judgment filed by Debtors with respect to their objection to the claim of Samalex Trust. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B). Pursuant to the Motion for Summa...
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DECISION & ORDER The present motion presents the interesting issue of whether this court may reinstate a case that has been automatically dismissed by reason of section 521(i) of the Bankruptcy Code. Richard and Ann Bonner filed a petition for relief under chapter 7 of the Bankruptcy Code on May 31, 2007. Pursuant to 11 U.S.C. § 521 (a)(1)(B)(iv), the debtors were obliged to file...
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MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS COMPLAINT The plaintiffs, secured trade creditors of the debtors (collectively, “Musieland”), brought this adversary proceeding against the defendant banks, alleging claims for breach of contract, various torts and unjust enrichment relating to a pre-petition intercreditor agreement. The defendants moved to dismiss for failure to st...
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MEMORANDUM IN SUPPORT OF ORDER GRANTING, IN PART, THE JOINT MOTION [271JOF THE DEBTOR AND OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR ORDER (I) APPROVING DISCLOSURE STATEMENT (II) ESTABLISHING A RECORD DATE FOR VOTING ON THE PLAN; (III) ESTABLISHING NOTICE AND OBJECTION PROCEDURES FOR HEARING ON CONFIRMATION OF THE PLAN; (IV) APPROVING SOLICITATION PACKAGES AND PROCEDURES FOR CIRCULATION; A...
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MEMORANDUM OF DECISION Granting Plaintiff’s Motion for Summary Judgment Joan Santamassino (the “Plaintiff’ or “Debtor”) initiated this adversary proceeding by filing a complaint on May 22, 2006, seeking a discharge of the student loans she owes to the New Jersey Higher Education Student Assistance Authority (the “Defendant”). The Plaintiff alleges that her responsibilities in serving ...
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MEMORANDUM AND ORDER ON DEBTOR’S MOTION TO SET ASIDE PURPORTED SETTLEMENT The Debtor has filed a motion to set aside the purported settlement of his personal injury claim arising under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51. See Dckt. No. 58 (December 27, 2006). As an interested party to the Debtor’s FELA claim, CSX Transportation, Inc. (hereinafter, “C...
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ORDER DENYING IN PART AND CONTINUING IN PART SCHNEIDER’S AMENDED MOTION FOR RELIEF FROM STAY FACTS AND PROCEDURAL HISTORY Dennis Stanford (the “Debtor”) entered into a Lease Agreement (the “Lease”) dated May 31, 2002, whereby the Debtor leased a 2003 Peterbilt Truck (the “Peter-bilt”) and promised to make payments to Schneider Finance, Inc. (“Schneider”) as described in the Lease. On August...
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OPINION1 Before the Court is the Motion of Meridian Automotive Systems, Inc. (“Meridian”) to Compel Compliance with the Terms of the Critical Vendor Orders by which Meridian seeks an order compelling Plastech Engineered Products, Inc. (“Plastech”) to *714disgorge $1.25 million which it received under the Critical Vendor Orders. Plas-tech opposes the Motion. For the reasons stated below and in the...
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DECISION & ORDER The current motion presents the question whether a filing fee is due when an attorney prematurely files a bankruptcy petition for a client before that client has satisfied the eligibility requirements of 11 U.S.C. § 109(h). On April 9, 2007, counsel filed an electronic copy of a bankruptcy petition that had been signed by William A. Doll, III. At the time, howeve...
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MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANTS AS TO ISSUES OF LIABILITY ON ALL COUNTS IN PLAINTIFFS’ COMPLAINT I. INTRODUCTION The matters before the Court are cross-motions for summary judgment by which the parties seek to resolve their dispute regarding real estate signage. As part of the...
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ORDER DENYING UNITED STATES TRUSTEE’S MOTION TO DISMISS OR CONVERT The United States Trustee’s Motion to Dismiss or Convert Pursuant to 11 U.S.C. § 707(b) 1 is currently pending before the Court. The UST seeks dismissal, alleging the totality of the circumstances demonstrates abuse under 11 U.S.C. § 707(b)(3). In this case, the UST fails to meet her burden to demonstrate the case is abusive b...
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MEMORANDUM OPINION These adversary proceedings came before the court on April 24, 2007 for hearing on cross motions for summary judgment filed in each adversary proceeding by the plaintiffs and by defendant William P. Miller. John H. Small and Katherine J. Clayton appeared on behalf of the plaintiffs and Christopher C. Finan appeared on behalf of defendant Miller. BACKGROUND ...
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ORDER ON OBJECTION TO CLAIMED EXEMPTIONS This matter came before the Court for an evidentiary hearing on the Chapter 7 Trustee’s objection to exemptions claimed by the debtors in certain life insurance policies and farm equipment.1 David C. McLaughlin appeared on behalf of the debtors, Eugene and Linda Miller. Gene W. Doeling appeared as attorney for the trustee. At the conclusion of trial, the C...
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DECISION ON APPLICATION FOR RECONSIDERATION Before the Court is the motion of special counsel for the Chapter 7 Trustee for Reconsideration and Amendment of the Court’s Decision and Order on the Trustee’s Application for Final Compensation dated May 14, 2007 (the “Decision”). On September 9, 2003, Reginald Jones (the “debtor”) filed a voluntary petition for relief under chapter 7 of the Ban...
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MEMORANDUM OPINION Curtis C. Reding, chapter 13 trustee, filed a motion to modify the confirmed plan in this case. The trustee requests that the non-exempt, net proceeds due to the debtors from settlement of a lawsuit be paid under the plan for the benefit of unsecured creditors. The debtors object to the motion. A hearing to consider the motion was held on May 9, 2007. Subsequent to the hearin...
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375 B.R. 610 (2007) In re ALLIED CARRIERS' EXCHANGE, INC., Debtor. Jeanne Y. Jagow, Trustee, Plaintiff-Appellee, v. Jack R. Grunwald, Defendant-Appellant. BAP No. CO-07-040, Bankruptcy No. 03-12392-EEB, Adversary No. 04-2056-EEB. United States Bankruptcy Appellate Panel of the Tenth Circuit. September 4, 2007. *611 *612 Submitted on the briefs:[*] Robert A. Simon and Paul J. Vitanza of Barlow Gar...
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MEMORANDUM OPINION This matter is before the court for ruling on the motion of Patricia Anselme to vacate the January 24, 2007 order substituting her as the defendant in this adversary proceeding. For the reasons that follow, the motion to vacate is denied. 1. Jurisdiction The court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1334(a) and the distri...
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DECISION & ORDER Susan Marinaceio-Amsden filed a petition for relief under chapter 7 of the Bankruptcy Code on January 13, 2007. When 45 days then passed without submission of all payment advices or other evidence of payment received from the debtor’s employer during the sixty days prior to bankruptcy filing, the trustee moved to dismiss this ease. The court granted that motion on Apr...
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DECISION & ORDER The trustee brings this motion pursuant to 11 U.S.C. § 521(i)(4), to request that the court defer the automatic dismissal that would otherwise occur when a debtor fails to file payment advices or other evidence of wages received during the sixty days prior to a bankruptcy filing. For the reasons stated hereafter, I will grant the requested relief, but under the author...
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MEMORANDUM DECISION I. INTRODUCTION The issue before this Court is whether to remand 42 of the approximately 127 removed child sexual abuse adversary proceedings to the state court pursuant to 28 U.S.C. § 1452(b). The Roman Catholic Bishop of San Diego (“RCBSD” or “Debt- or”) removed all of the sexual abuse actions pending against it from the state court to the bankruptcy court ...
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POST-TRIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW This litigation arises from certain testimony given during the debtors’ confirmation hearing held on January 19, 2005. The plaintiffs, Steven Salsberg (“Steven”) and his mother, Gloria Salsberg (“Gloria,” and collectively, the “Salsbergs”), hold warrants distributed under the debtors’ confirmed plan (the “Plan”). They contend that Trevor ...
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MEMORANDUM OPINION AND ORDER On June 1, 2007, Gary M. Kornman (“Kornman”) and GMK Family Holdings, LLC (“GMK”) (collectively, the “Kornman Parties”) filed a “Motion ... Pursuant to 11 U.S.C. §§ 1125(b) and 1126(e) for an Order Designating and Disallowing Votes of Client Claimants” (the “Designation Motion”) on the ground that those votes were solicited prior to transmittal of a court-approved...
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MEMORANDUM OPINION Before the Court is confirmation of the Second Amended Joint Plan of Liquidation (the “Second Amended Plan”) filed by Dennis Faulkner, as Chapter 11 trustee of The Heritage Organization, L.L.C. (the “Trustee”) and the Client Claimants (as defined hereinafter) (collectively, the “Plan Proponents”). Gary M. Kornman (“Kornman”) and GMK Family Holdings, LLC (“GMK”) (col...
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ORDER REGARDING OBJECTION TO CLAIM OF DANA RUTH DOLLINS (CLAIM #1) AND TRUSTEE’S MOTION TO RECONSIDER ORDER STRIKING SUPPLEMENTAL RESPONSE Debtor objects to the allowance of Dana Ruth Dollins’ proof of claim (Claim No. 1) because Ms. Dollins dismissed a state court action post-discharge and after the statute of limitations had run, thereby, according to Debtor, making her claim unenforceable un...
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MEMORANDUM OPINION AND ORDER ON DEBTORS’ OBJECTION TO CLAIM OF FORD MOTOR CREDIT COMPANY AND CREDITOR’S MOTION FOR RELIEF FROM STAY The issue before the Court is what claim, if any, remains for payment pursuant to a Chapter 13 plan after a creditor holding an allowed claim arising from the purchase of a vehicle for personal use within the 910 days prior to filing for bankruptcy is granted...
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MEMORANDUM DECISION This Chapter 7 bankruptcy case came before the Court for hearing on the joint motion to compromise filed by the Trustee and General Electric Capital Corporation (Doc. 37), on August 21, 2007. Present were Chapter 7 Trustee Daniel G. Hamm, Trustee’s counsel Richard Scott Williams, Daniel D. Sparks, counsel for General Electric Capital Corporation, Michael Fritz, cou...
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AMENDED OPINION REGARDING ORDER FOR ABANDONMENT OF PROPERTY OF THE ESTATE On March 13, 2007, in this bankruptcy case, the Court entered an “Order For Abandonment Of Property Of The Estate” (Docket # 34), which purported to abandon to creditor Craig Cassel the claims of Debtor Renaissance Stone Works, L.L.C. against Blake Turvey. Cassel had been asserting the Debtor’s claims against Tur-vey as d...
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DECISION & ORDER BACKGROUND On June 21, 2006, Donald F. Murphy (the “Debtor”) filed a petition initiating a Chapter 13 case, and George M. Reiber, Esq. (the “Trustee”) was appointed as his Chapter 13 Trustee. On his Schedule F, Creditors Holding Unsecured Nonpriority Claims, filed along with his petition, the Debtor indicated that he had unsecured *75 nonpriority cla...
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OPINION AND ORDER Before the Court is the “hanging paragraph” issue, so well explained in such cases as In re Williams, 2007 WL 2122131 (Bankr.E.D.Va. Jul.19, 2007), In re Quick, 371 B.R. 459 (10th Cir. BAP 2007), In re Pinti, 363 B.R. 369 (Bankr.S.D.N.Y.2007) (all collecting cases explaining majority and minority views regarding the effect of § 1325(a) under BAPCPA on the deficiency cl...
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*6 MEMORANDUM-OPINION This matter is before the Court on the Motion to Strip Off Junior Lien of T.J. Samson Community Hospital (“T.J.Samson”) of Debtors Glenda Faye Edmunds and Kelvin Eugene Edmunds (“Debtors”). The Court considered the arguments of counsel at the hearing held on the matter and the post-hearing brief of the Debtors. For the following reasons, the Court DENIES the Motion. ...
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OPINION I. Introduction. Plaintiff Jerry Birdsall sues debtor-defendant Michael Tulloch to except from bankruptcy discharge a debt arising out of the tragic 1998 death of plaintiffs twenty-year-old daughter, Meghan. The exception-to-discharge allegations are grounded in 11 U.S.C. § 523(a)(6) (willful and malicious injury to Ms. Birdsall) and § 523(a)(9) (personal injury a...
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*493 ORDER This matter came before the Court on the Objection to Confirmation of Plan filed by Green Tree Servicing LLC. 1 A hearing was held on August 1, 2007 and the parties agreed that the matter could be decided on briefs. Supplemental or amended briefs were filed by both parties. The Court has considered the briefs filed by the parties and the applicable law and i...
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MEMORANDUM OF DECISION AND ORDER RE: DEBTOR’S OBJECTIONS TO PROOFS OF CLAIM Before the court are the above-captioned debtor’s (the “Debtor”) objections (Doc. I.D. Nos. 42, 43, 46, 47, 48, 49 and 52, collectively, the “Objections”) to various proofs of claim (collectively, the “POCs”) 1 *474 pursuant to Bankruptcy Code § 502(a) and Rule 3007 of the Federal Rules of ...
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OPINION GRANTING TRUSTEE’S MOTION TO DISMISS PURSUANT TO 11 U.S.C. § 707(b)(3) This matter is before the Court on the Trustee’s Motion to Dismiss Pursuant to *27 11 U.S.C. § 707(b)(3). A hearing was held on August 14, 2007 and, at the close of proofs, the matter was taken under advisement. Having fully considered the facts and the law, and for the reasons stated in this Opinion, the Trustee...
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ORDER SUSTAINING TRUSTEE’S OBJECTIONS TO EXEMPTIONS In each of these separate Chapter 7 bankruptcy cases, the Debtors sought to claim exemptions in contingent and unliq-uidated personal injury lawsuits pursuant to § 513.427 of the Missouri Statutes 1 and a well-established line of case law in Missouri. The Chapter 7 trustee objected in both cases, based on the Eighth Circuit’s recent decisi...
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OPINION The question presented is whether the court may require a chapter 7 trustee to submit time records in applying for compensation. Applicant trustee argues that BAPCPA requires the compensation of chapter 7 trustees to be calculated as a *728 percentage of the amount distributed to creditors and that time spent is legally irrelevant. I conclude that time spent is still a relevant fact...
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DECISION AND ORDER DENYING APPLICATION FOR SUMMARY JUDGMENT Before the Court is the application of the debtor and plaintiff Maureen L. Rogers (“Rogers”) for an Order granting summary judgment on Count I of the Amended Complaint. Rogers claimed that the loan she received from the defendant Key Bank, National Association (“Key Bank”) was not a “qualified educational loan” within the meaning of Se...
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MEMORANDUM OF DECISION All that remains of this adversary proceeding is to determine one aspect of the treatment of a claim of UMB Bank, N.A. (“UMB”) under the confirmed Chapter 11 plan of United Air Lines, Inc. (“United”). Although the plan specifically addresses UMB’s claim, it deferred the resolution of several disputed matters, including the valuation of a leasehold that secures the c...
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*3 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT THIS CORE PROCEEDING 1 comes before the Court on the Motion for Summary Judgment filed by Nancy Fabing, the plaintiff in this adversary proceeding (“Plaintiff’), on grounds that a prepetition Kentucky state court judgment she received in 2003 against Benjamin Kirk Howell, the defendant in this proceeding and debt...
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MEMORANDUM OPINION THIS CORE PROCEEDING 1 comes before this Court on the nondischargeability complaint filed by Christine Bohannon and Margrett Dolan (“Creditors”) against Jerry Otis Horton, one of the debtors in the underlying bankruptcy (“Debtor”), on grounds that the Debtor obtained a sum of money from the Creditors under a contractual agreement through false representations...
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ORDER Before the Court are two motions for sanctions filed by Wildlife Farms II, LLC; Bill Thompson; and Boyd Rothwell (“Mov-ants”). The Movants seek monetary sanctions pursuant to Federal Rule of Bankruptcy Procedure 9011 against attorneys Sheila Campbell and Roy C. Lewellen, who represent Tommy and Carolyn Robinson (“Debtors”). The first Motion for Sanctions was prompted by three p...
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OPINION MEMORANDUM DECISION I. JURISDICTION This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Standing Order of Reference issued by the United States District Court for the District of New Jersey on July 13, 1984. This is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(A) and (K). Venue is proper in this Court pursuant to 28 U.S.C. § 140...
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MEMORANDUM DECISION RE DENIAL OF CHAPTER 11 TRUSTEE’S MOTION TO AMEND ORDER APPROVING SETTLEMENT This decision addresses the Expedited Motion to Amend Order Approving Trustee’s Settlement With Louis B. Friedman, As Trustee of the E.S. Bankest, L.C. Liquidating Trust and McGladrey & Pullen, LLP (Docket Entry (“DE”) No. 233) filed by Stephen H. Marcus, the chapter 11 trustee ...
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MEMORANDUM DECISION REGARDING CHAPTER 13 TRUSTEE’S OBJECTION TO CONFIRMATION OF DEBTOR’S FIRST AMENDED PLAN This case is governed by the Bankruptcy Code (11 U.S.C.) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23 (generally effective Oct. 17, 2005) (“BAPCPA”). The parties are in agreement that 11 U.S.C. § 1325(b)(3) app...
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*904 ORDER ESTABLISHING PRESUMPTIVELY REASONABLE DEBTOR’S ATTORNEY FEE IN CHAPTER 13 CASES MICHAEL G. WILLIAMSON, K. RODNEY MAY and CATHERINE PEEK McEWEN, Bankruptcy Judges. This order sets forth the procedures that will generally be followed by the judges of the United States Bankruptcy Court for the Middle District of Florida, Tampa Division (“Tampa Division Judges” or “Court”), with re...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the United States Trustee’s Motion to Dismiss Case under 11 U.S.C. § 109(h) filed May 7, 2007 (Docket # 15), the Response thereto filed by Chad Channon En-loe and Carla Jean Enloe (“Debtors”) on June 5, 2007 (Docket #28). The Court, having reviewed the pleading and the Court’s file in this matter, makes the following findi...
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DECISION & ORDER BACKGROUND On January 29, 2007, Paul E. Osborne (the “Debtor”) filed a petition initiating a Chapter 7 case, along with the Schedules and Statements required to be filed by Section 521 and Rule 1007, including a Form B22A (the “Chapter 7 Means Test Form”). On his Schedules A and B, the Debtor listed his ownership of a residence at 302 E. Second Street, Watki...
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MEMORANDUM OPINION ON THE AMOUNT OF SANCTIONS TO BE AWARDED FOR DISCOVERY ABUSES THE MATTER to be determined in this adversary proceeding is the amount to be awarded to the Trustee pursuant to an Order imposing sanctions for discovery abuses (Sanctions Order) on the Solomon Tropp Law Group, P.A., and their counsel (Defendants). The award was based on findings of this Court following three...
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*892 ORDER SUSTAINING TRUSTEE’S OBJECTION TO CLAIM OF EXEMPTIONS AND GRANTING MOTION FOR TURNOVER (Doc. Nos. 88 and 97) THE MATTERS under consideration in this Chapter 7 case, which converted from a Chapter 13 case, arise from two intertwined contested matters, both instituted by the Chapter 7 Trustee (“Trustee”) against Tony Alfonso Stevenson (“Debt- or”). One is the Trustee’s Objection to...
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ORDER ON DEBTORS’ OBJECTION TO CLAIM NUMBER 1 OF THOR CREDIT (Doc. No. 33) THE MATTER under consideration in this Chapter 13 case of Gerald R. and Kathryn H. VanDuyn (Debtors) is an Objection to Claim Number 1 of Thor Credit, filed by the Debtors on April 13, 2007 (Doc. No. 33). The Debtors, in their Objection, claim that on or about February 12, 2007, Thor Credit Corporation (Cred...
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*365 OPINION RE: TRUSTEE’S DECEMBER 20, 2006 OBJECTION TO EXEMPTIONS Loren J. Brown (“Debtor”) filed a petition for relief under Chapter 13 of the Bankruptcy Code 1 on May 9, 2005. Debtor’s schedules indicate that he owned a fee simple interest in his McMillan, Michigan home immediately preceding the commencement of his case. That interest, of course, became proper...
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MEMORANDUM DECISION Emerging Vision, Inc., the plaintiff, filed this adversary proceeding seeking denial of the debtors’ discharge under 11 U.S.C. § 727(a)(2)(A). The plaintiff alleges as cause for the denial of discharge the undisputed fact that the debtor wife transferred assets of her sole proprietorship to a newly incorporated entity shortly after the plaintiff obtained a judgment against h...
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*185 MEMORANDUM OPINION On April 26, 2007, the court conducted a hearing on the “Motion to Continue the Automatic Stay ” (the “Motion ”) filed by Timothy Scot and Lisa Carol Lundquist (the “Lundquists”), joint-debtors in this chapter 13 case. The court heard testimony from Mrs. Lundquist and oral argument from counsel for the Lundquists and fr...
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Sher Zamin Khan (the “Debtor”) appeals from the May 8, 2007, order of the bankruptcy court sustaining the objection of Carolyn Bankowski, chapter 13 trustee, (the “Trustee”) to the Debtor’s homestead exemption to the extent the exemption exceeds $125,000.00 (the “Order”). 1 The issue presented is whether an interest in property transferred to the Debtor by a trust is considered an in...
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ORDER The Court has before it the Objection to Claimed Exemption (Doc. No. 16) (the “Objection”) filed by Lawrence Sumski, chapter 13 trustee (the “Trustee”). The Trustee is objecting to Cynthia Dubrav-sky’s (the “Debtor”) claim of a homestead exemption pursuant to NH RSA 480:1 in the amount of $100,000.00. After notice, the Court held a hearing on the Objection on August 17, 2007. At the hea...
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MEMORANDUM OPINION I. INTRODUCTION Lawrence P. Sumski, the chapter 13 trustee (the “Trustee”), objects to confirmation of the Debtor’s chapter 13 plan (the “Plan”) on the grounds that the Plan fails to comply with 11 U.S.C. § 1325(b)(1)(B), 1 in that it does not provide that “all of the debtor’s projected disposable income to be received in the applicable commitment pe...
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MEMORANDUM OPINION I. INTRODUCTION Steven M. Notinger, as chapter 7 trustee (the “Trustee”) of Robotic Vision Systems, Inc. (the “Debtor” or “RVSI”), filed a twenty-three count complaint against seven former directors of the Debtor seeking, among other relief, to recover for breach of fiduciary duty to RVSI and its creditors and objecting to the directors’ proofs of claims. The d...
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ORDER This matter is before the Court upon the Motion of AGM II, LLC and Lancelot Investors Fund, L.P. (“Defendants”) to dismiss Counts Two and Four of the Second Amended Complaint filed by Michelle L. Vieira, as Chapter 7 Trustee (“Trustee”) for Worldwide Wholesale Lumber, Inc. (“Debtor”), pursuant to Fed.R.Civ.P. 12(b)(6) (“Motion”). The Trustee filed an Objection to the Motion. This Court ha...
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*484 ORDER This matter comes before the Court for confirmation of Glenda Kay Matthews’ (“Debtor”) chapter 13 plan. South Carolina Federal Credit Union (“Credit Union”) objects to confirmation on grounds that Debtor’s chapter 13 plan impermissi-bly values its purchase money security interest in two automobiles. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 13...
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RULING DENYING DEBTOR’S MOTION TO EXTEND EXCLUSIVITY PERIOD I. The matter before the court is a Chapter 11 debtor’s motion for an order, pursuant to Bankruptcy Code § 1121(d), further extending the debtor’s exclusivity period in which to file a plan of reorganization (“the motion”). Two of the estate’s creditors have filed objections to the granting of the motion. There is no cre...
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375 B.R. 26 (2007) In re John B. SHORTON, Debtor. John B. Shorton, Plaintiff, v. Commonwealth of Massachusetts, Defendant. Bankruptcy No. 06-11123-JNF, Adversary No. 07-1148. United States Bankruptcy Court, D. Massachusetts. September 6, 2007. *27 Leonard Ullian, The Law Office Of Ullian & Associates, Braintree, MA, for Debtor. John B. Shorton, Norwood, MA, pro se. Celine E. Jackson, Massachu...
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MEMORANDUM OPINION RE OBJECTION TO CLAIM OF CPI NV In 2005, debtor Carolina Tobacco Company (CTC) filed a petition under chapter 11 of the Bankruptcy Code. 1 In its schedules filed in this case, CTC listed a claim by CPI NV in the amount of $534,765.73. A number of states that are creditors in this case object to this claim, arguing that it is not a debt of debtor CTC, but instead is an oblig...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER THIS MATTER comes before the Court on the second phase of this adversary proceeding by way of John Robert Burke’s (“Mr. Burke”) Motion for Hearing on Objection to Claim of Richard Greene (“Mr. Greene”) filed September 15, 2004 (Docket # 184) and the Objection to Claim of Richard Greene filed in the main bankruptcy case on July 9, 2004 (Docket # 214...
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OPINION Appellant-creditor Carl Zeiss Meditec AG (“Creditor”) appeals a judgment of the United States Bankruptcy Court for the District of Colorado in favor of appellee-trustee Glen R. Anstine (“Trustee”) in this Chapter 7 adversary action. The bankruptcy court determined that Creditor was a nonstatutory insider with respect to debtor, U.S. Medical, Inc. (“Debtor”), and therefore allowed Truste...
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ORDER OVERRULING THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS’ OBJECTION TO FINAL FEE APPLICATION OF SAYBROOK CAPITAL, LLC. AND AWARDING FINAL FEES THIS MATTER came before the Court for hearing on Tuesday, April 10, 2007, on the Final Fee Application of Saybrook Capital, LLC (“Saybrook”) as financial and capital markets advisors for Pan American Hospital Corporation and Pan American Medical ...
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DECISION AND ORDER The matter before the court is the objection to the confirmation of the Debtors’ proposed Chapter 13 Plan (“Plan”) by eCAST Settlement Corporation (“eCAST”), a creditor in the Debtors’ bankruptcy case. The Court conducted a hearing on the objection on April 25, 2007. Both parties submitted authorities in sup *581 port of their respective positions. After du...
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MEMORANDUM OPINION 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 August 1, 2007 and was taken under advisement. After due consideration of the facts and circumstances of this case, the Court, for the reasons noted below, concludes that the Application should be denied. *2...
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MEMORANDUM Eloise A. Woodsbey (“Debtor”) filed a Voluntary Petition under Chapter 13 of the Bankruptcy Code on January 18, 2006. Debtor filed a Second Amended Complaint (the “Complaint”) and Objection to Creditors’ Claims. In Counts I-VII of the Complaint, Debtor asserts entitlement to actual and statutory damages from the Defendants who participated in her purchase of a home due to m...
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OPINION REGARDING INSOLVENCY AND UNREASONABLY SMALL CAPITAL TABLE OF CONTENTS INTRODUCTORY STATEMENT AND OVERVIEW.........................291 PROCEDURAL HISTORY................................................304 JURISDICTION AND VENUE............................................304 FINDINGS OF FACT....................................................305 I.IRIDIU...
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Memorandum of Decision Within a year of filing their joint, voluntary bankruptcy petition, Albert Gauvreau and Judith Gauvreau quitclaimed their jointly-held real estate to Albert individually. After trial, the sole issue to be decided is whether that transaction will sustain Thomas and Barbara Worster’s objection to Albert’s chapter 7 discharge, 1 lodged pursuant to Bankruptcy...
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OPINION 1 Before the Court is the Motion of Michael W. Trickey (“Trickey”) and the Berkshire Group, LP (“Berkshire”) for dismissal of the aiding and abetting a breach of fiduciary duty and civil conspiracy counts of the above captioned amended complaint against them, with prejudice. For the reasons set forth below, the Court will deny the motion. I. BACKGROUND ...
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OPINION 1 Before the Court are (1) the Motion of Mittal Steel Ostrava, a.s., formerly Nova Hut, a.s. (“Nova Hut”) to lift the automatic stay and for summary judgment against plaintiffs Kaiser Group International, Inc. (“Kaiser International”) and Kaiser Engineers, Inc. (“Kaiser Engineers”), (collectively, the “Debtors”) and (2) the cross-motion of the Debtors for summary judgment ...
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MEMORANDUM OF DECISION RE PLAINTIFFS’ MOTION TO DISMISS COUNTERCLAIMS Introduction In this adversary proceeding, the Plaintiffs, chapter 13 1 debtors Jason L. Scott and Ginger K. Scott, move to dismiss the counterclaims filed against them by Defendants Countrywide Home Loans, Inc., Mortgage Electronic Registration Systems, Inc., and ReconTrust Co., N.A. (collectively, ...
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MEMORANDUM OPINION Before the Court is the chapter 13 trustee’s Objection to Confirmation of Initial Plan filed on May 11, 2007 [the Objection], On March 29, 2007 [the Petition Date], Anne B. Lasowski [the Debtor] filed a petition under Chapter 13 of Title 11 of the United States Code, 11 U.S.C. § 101 et seq., as amended. The Debtor claimed a deduction from her disposable income of $150 per m...
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MEMORANDUM OPINION THIS CAUSE came before the Court for trial on March 8, 2007 on the Complaint Objecting to Discharge (C.P. 1), filed by Deborah C. Menotte, chapter 7 trustee. The Court, having considered the testimony of the witnesses, the documentary evidence presented by the parties, the candor and demeanor of the witnesses, the underlying pleadings, and being otherwise fully advi...
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MEMORANDUM OPINION RE MOTION FOR PARTIAL SUMMARY JUDGMENT ON OMNIBUS OBJECTION TO CLAIM OF CATALINA DEVELOPMENT, INC. THIS MATTER is before the Court on a portion of the Chapter 7 Trustee’s Omnibus Objection to Remaining Disputed Claims filed on March 21, 2006 (the “Omnibus Objection”) concerning the Trustee’s objection to Proof of Claim No. 175 filed on September 12, 2000 by Catalina Dev...
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MEMORANDUM OPINION The matter before the Court in this case is the objection by the Trustee to the claim by debtors Richard and Carolyn Adams (“Debtors”) of a Florida homestead exemption in property located in Gladstone, 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 pu...
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*507 MEMORANDUM DECISION ON DEBTORS’ OBJECTION TO FORD MOTOR CREDIT COMPANY’S MOTION FOR RELIEF FROM THE AUTOMATIC STAY When the debtors’ motor vehicle was totally destroyed by an insured and liable third party, Ford Motor Credit Company, the creditor that had a properly perfected security interest in the damaged car, filed a motion for relief from the automatic stay to allow it ...
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MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter came before the Court on Defendant’s Motion for Summary Judgment (Docket # 21), the accompanying affidavit of the Defendant (Docket # 22), the Plaintiffs Objection to Summary Judgment (Docket # 40) and the Plaintiffs Cross-Motion for Summary Judgment as to Count II of the Complaint (Docket #41). The Plaintiffs Complai...
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ORDER THIS MATTER came before the court for hearing on the Motion of the United States Trustee to Dismiss for Presumed Abuse pursuant to 11 U.S.C. § 707(b)(1) and (2). 1 The issue before the court is whether the debtor can claim the Local Standard vehicle ownership expense of $471 pursuant to § 707(b) — the Means Test. The Means Test is found in amendments to the Code made pursuant to the B...
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OPINION DENYING SECOND APPLICATION FOR PAYMENT FROM UNCLAIMED FUNDS I. Introduction This matter is before the Court upon a second application for payment from unclaimed funds filed by “Bradford Production, Inc., Applicant, by and through its Assignee, Omega Consulting.” The sec *357 ond application recites that there are unclaimed funds in this chapter 7 case totaling $40,571.35 and req...
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ORDER FINDING ALLEN BOMBART IN CIVIL CONTEMPT AND DIRECTING HIS APPREHENSION BY THE UNITED STATES MARSHAL THIS CASE is before me on the Debt- or’s motion [DE 292] seeking the appre *694 hension of Allen Bombart pursuant to Federal Rules of Bankruptcy Procedure 2005 for his failure to comply with the Order Granting Motion to Compel Testimony and to Compel Production of Documents [DE 287] ent...
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ORDER OVERRULING TRUSTEE’S OBJECTION TO DEBTORS’ CLAIM OF EXEMPTIONS This matter came before the Court on August 20, 2007, on the Trustee’s Objection to Debtors’ Claimed Exemption and Motion to Compel Turnover (CP # 56) (the *39 “Trustee’s Objection”) and the Debtors’ Verified Response to Trustee’s Objection to Debtors’ Claimed Exemption and Motion to Compel Turnover (CP ...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW 11 U.S.C. § 1325(b)(1)(B) provides that chapter 13 debtors must direct all of their “projected disposable income” to the payment of unsecured claims for the duration of their plan. Historically, courts calculated disposable income by deducting the monthly expenses found on a debtor’s schedule J from the monthly income listed on sche...
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MEMORANDUM OF DECISION & PROPOSED FINDINGS AND CONCLUSIONS Pending in this adversary proceeding is the Defendant Washington Mutual Bank’s (“WaMu”) motion for summary judgment, filed on February 5, 2007, and Plain-tiffDebtor Theresa A. Chabot’s (“Chabot”) objection. Also pending is WaMu’s amended motion for relief from the automatic stay and for in rem relief filed in the above-captioned C...
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DECISION AND ORDER This cause comes before the Court after a Blearing on the Motion of the United States Trustee to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(1). At the conclusion of the Hearing, the Court took the matter under advisement so as to afford time to thoroughly consider the issues raised by the Parties. The Court has now had this opportunity, and finds, for the reasons n...
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*373 MEMORANDUM OPINION The United States Trustee (“UST”) filed a motion to dismiss the bankruptcy case of Andrew C. Turner, III, and Rebecca L. Turner (the “Debtors”) pursuant to section 707(b)(2). 1 This case is about whether the Debtors are allowed to take certain deductions on Form B22A, the Statement of Current Monthly Income and Means Test Calculation. J...
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375 B.R. 704 (2007) In re Anthony H. MONEY, Debtor. Paul H. Anderson, Jr., Chapter 7 Trustee, Plaintiff, v. Citizens Fidelity Mortgage Corporation, Defendant v. Regions Bank, Defendant in Crossclaim. Bankruptcy No. 03-77459-JB, Adversary No. 05-6414. United States Bankruptcy Court, N.D. Georgia, Atlanta Division. August 3, 2007. *705 *706 Paul H. Anderson, Jr., Atlanta, GA, pro se. William L. Rot...
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MEMORANDUM OPINION1 Before the court are cross motions for summary judgment in two adversary pro*131ceedings regarding avoidance and recovery of preferential payments.2 Spectrum Sports, the defendant in Adv. 01-8160, is a division of Hickory Brands, Inc., the defendant in Adv. 01-8359. See Trustee’s Supplemental Memorandum in Support of Motion for Summary Judgment, Adv. 01-8160 at Dkt. No. 61, at...
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375 B.R. 135 (2007) In re Tracey PATTERSON, Debtor. Tracey Patterson, Plaintiff, v. LJR Investments, LLC of Bucks County, aka LJR Investments, LLC, Defendant. Bankruptcy No. 04-32201DWS, Adversary No. 07-0023. United States Bankruptcy Court, E.D. Pennsylvania. September 5, 2007. *136 David A. Scholl, Law Office of David A. Scholl, Newtown Square, PA, for Plaintiff. David B. Comroe, Comroe Hing LL...
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MEMORANDUM OF OPINION AND ORDER The matter before the Court is the GMAC, NA’s (the “GMAC”) Motion for Relief from the Automatic Stay (the “Motion”). Paul D. (the “Debtor-Husband”) and Judy A. Globokar (collectively, the “Debtors ”) oppose the requested relief. The Court acquires core matter jurisdiction over the instant matter pursuant to 28...
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DECISION 1) GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ § 523(a)(4) CAUSE OF ACTION AND 2) GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO AMEND THE COMPLAINT TO PLEAD A § 523(a)(2) CAUSE OF ACTION Procedural Background On May 7, 2007, Judith and Richard Rowland (the “Plaintiffs”) filed a complaint against the Debtor, Robert Edward Walls (Doc. 1) (the “Defendant”). The complaint ...
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375 B.R. 410 (2007) In re Stephen Jerome BAILEY, Debtor. CM Temporary Services, Inc., Plaintiff v. Stephen Jerome Bailey, Defendant. Bankruptcy No. 06-31286, Adversary No. 06-3297. United States Bankruptcy Court, S.D. Ohio, Western Division, at Dayton. September 12, 2007. *411 *412 Robert A. Goering, Esq., Cincinnati, OH, for Plaintiff. Stephen Jerome Bailey, Loveland, OH, Debtor/Defendant. Eilee...
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OPINION Because this Court finds (1) that there is no statutory presumption of nondischarge-ability and (2) that there is insufficient evidence to show that Debtor fraudulently made charges on his credit card with no intent to repay Chase and (3) that Chase, never having asked Debtor anything about his assets or liabilities, cannot rely on an implied representation of solvency, and (4...
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MEMORANDUM Debtor and Citizens Bank of Pennsylvania (the “Bank”) dispute the proposed distribution of the net proceeds of sale of the Debtor’s restaurant real estate and restaurant equipment. The procedural vehicle for the dispute is DEBTOR’S MOTION TO DETERMINE EXTENT OF BANK’S SECURED CLAIM. Debtor asserts that the appropriate date of valuation of the Bank’s collateral for purposes of d...
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MEMORANDUM OF DECISION This contested matter/adversary proceeding arises from the objection of the debtor Steve Rodger Canaday (“Canaday”) to claim # 15, filed by creditor Don Wilson (“Wilson”) on August 23, 2006. This claim was filed as a secured claim, and in his objection Canaday asserted that the secured status of the claim was subject to challenge pursuant to 11 U.S.C. § 544(a). ...
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MEMORANDUM OF DECISION In this adversary proceeding, the plaintiff Stacia L. Yoon, Trustee of the Chapter 7 bankruptcy estate of Brenda Diane Krick (“Trustee”), seeks a determination pursuant to 11 U.S.C. § 363(h) that she may sell the debtor’s interest in real property in order to obtain proceeds of that sale for the benefit of the Chapter 7 estate. The defendants — the debtor Brenda...
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MEMORANDUM OPINION This opinion is with respect to the motion (Adv. Doc. # 61) of the Shaw Group Inc. (“Shaw”) to intervene (the “Motion”) pursuant to Rule 24 of the Federal Rules of Civil Procedure in this adversary proceeding (the “Saudi Aramco Proceeding”) between plaintiff SWE & C Liquidating Trust (the “Trust”) and defendant Saudi Arabian Oil Co. (“Saudi Aramco”). For the reasons dis...
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RULING ON TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTION I. The matter before the court is the Chapter 7 trustee’s objection to the claim of exemption of Richard E. Jackson (“the debtor”), based upon Bankruptcy Code § 522(d)(ll)(E), in the total settlement proceeds of his employment-related claims. The court, on July 19, 2007, held a hearing on the matter at which it heard th...
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375 B.R. 445 (2007) In the MATTER OF STRUG-DIVISION, LLC, Debtor. Strug-Lawrence, LLC, Debtor. Bankruptcy No. 07 B 09165, Adversary No. 07 B 09166. United States Bankruptcy Court, N.D. Illinois, Eastern Division. September 14, 2007. *446 Carina M. Segalini, Esq., Polsinelli Shalton Flanigan Suelthaus, for Natixis Real Estate Capital, Inc. Arnold G. Kaplan, Law Offices of Arnold Kaplan Ltd., Paul ...
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MEMORANDUM OPINION This matter comes before the Court on the objection of Marilyn O. Marshall, the Chapter 13 Standing Trustee (the “Trustee”), to confirmation of the Chapter 13 plan proposed by Robert Charles Ross (the “Debtor”). The Trustee objects to confirmation on the basis that the plan does not propose to pay interest to the Debtor’s general unsecured creditors. According to the Truste...
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ORDER This matter comes before the Court on the Motion In Limine of Ottawa Plant Food, Inc. (“Ottawa”) To Bar Opinion Testimony From Plaintiffs Experts (“Motion”). The Motion was filed approximately two weeks before the trial was scheduled to commence and was initially heard by telephonic conference call during the week before the trial began. Because the case was tried without a jury, the Cour...
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MEMORANDUM DECISION AND ORDER SUSTAINING OBJECTION TO CLAIM NO. 1586.0 AS UNSECURED CLAIM AND DENYING REQUEST FOR ALLOWANCE OF ADMINISTRATIVE EXPENSE CLAIM OF THE CITY OF WARNER ROBINS, GEORGIA Factual and Procedural Background The City of Warner Robins, Georgia (“Warner Robins”), filed a timely request for allowance of an administrative claim (Doc. No. 1153) in the amount of...
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Michael Porter appeals the bankruptcy court’s 1 order which determined that a civil judgment debt against him on Holly Sells’ claims for sexual harassment and retaliation was excepted from discharge. Sells also appeals the judgment entered in her favor. We affirm the bankruptcy court and dismiss Sells’ appeal. *825 Background Porter and John Huffer were business pa...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW GRANTING MOTION TO DISMISS AND AWARDING DAMAGES This case came on for hearing on July 30, 2007, on the Motion to Dismiss Case and to Shorten Time for Notice of Hearing (Doc. No. 53) filed by the debtor, William E. Pace, Trustee of Earl H. Pace Irrevocable Trust. On February 27, 2007, Mr. Pace, without assistance of counsel, signed a petition ini...
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ORDER ON MOTION FOR SANCTIONS AND DISALLOWANCE OF ATTORNEY FEES This matter came before the Court for an evidentiary hearing on motions by the United States Trustee seeking disallowance and disgorgement of all compensation received in the above captioned cases by attorney Barbara J. May and for sanctions. Michael R. Fadlovich and Michael E. Ridgway appeared on behalf of the UST, and James...
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MEMORANDUM Ralph Raymond Losak, Jr. and Susan Marie Losak (the “Debtors”) filed a voluntary Petition under Chapter 7 of the Bankruptcy Code on July 20, 2000 and received their discharge on November 16, 2000. At the time of the bankruptcy filing, Debtors owned a 1979 Duke Royal Mobile Home (the “Mobile Home”) situated on a rented lot. This Mobile Home was subject to a lien in favor of Benefici...
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DECISION This adversary proceeding is a classic illustration of how a mistake by both sides on the issue of dischargeability of certain tax debts and which issue has been fueled by extensive overlawyering can turn a mole hill into a huge mountain. This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(A) and (0). FACTUAL BACKGROUND The key events involved occurred over ...
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375 B.R. 829 (2007) In re Craig Matthew FREDERICKSON, Debtor. David D. Coop, Trustee-Appellant. v. Craig Matthew Frederickson, Debtor-Appellee. No. 07-6025EA. United States Bankruptcy Appellate Panel of the Eighth Circuit. Submitted: August 15, 2007. Filed: September 24, 2007. *830 Kimberley F. Woodyard, argued, North Little Rock, AR, for appellant. O.C. Sparks, argued, Little Rock, AR, for appel...
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375 B.R. 838 (2007) In re James MORGAN and Linda Morgan, Debtors. James Morgan and Linda Morgan, Plaintiffs, v. Jo-Ann L. Goldman, Defendant-Appellant, Bank of America; Capitol One Bank; AR Specialty Care Centers; eCAST Settlement Corporation; DeWitt Bank & Trust Company; DeWitt City Hospital; Discover Bank; St. Vincent's Health System; and Kyle Havner, Defendants. In re Janet Lavern Dedmon, ...
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375 B.R. 689 (2007) In re Ashley S. STEWART, Debtor. No. 06-2115-JAF. United States Bankruptcy Court, M.D. Florida, Jacksonville Division. September 17, 2007. *690 Douglas C. Higginbotham, Jacksonville, FL, for Debtor. Nina M. LaFleur, St. Augustine, FL, for Trustee. FINDINGS OF FACT AND CONCLUSIONS OF LAW JERRY A. FUNK, Bankruptcy Judge. This case is before the Court upon the Chapter 7 Trustee'...
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375 B.R. 155 (2007) In re GLOBAL INDUSTRIAL TECHNOLOGIES, INC., et al., Debtors. Global Industrial Technologies, Inc. and Harbison-Walker Refractories Company, Movants, v. Ash Trucking Company, Inc., Respondent. Ash Trucking Company, Inc., Movant, v. Global Industrial Technologies, Inc. and Harbison-Walker Refractories Company, Respondents. Bankruptcy No. 02-21626-JKF. United States Bankruptcy Co...
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375 B.R. 618 (2007) In re Carl SCARAFIOTTI, Pamela Jean Scarafiotti, Debtors. No. 06-11402 EEB. United States Bankruptcy Court, D. Colorado. September 7, 2007. *619 *620 Anthony R. Cross, John Turner, Colorado Springs, CO, for Debtors. *621 ORDER ELIZABETH E. BROWN, Bankruptcy Judge. THIS MATTER came before the, Court on the Motion to Dismiss Chapter 7 Case Under 11 U.S.C. § 707(b)(1), filed by...
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MEMORANDUM OPINION This adversary proceeding raises the question of how far a creditor may go to obtain repayment on a debt without running afoul of the discharge injunction of 11 U.S.C. § 524 when the debtor has expressed his intention — both before and after filing bankruptcy — to repay the debt but never entered into a reaffirmation agreement. Expressed another way: “When is the vo...
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Before the Panel are appeals filed by Ara Eresian, Jr. (“Eresian”), of three bankruptcy court orders in this fourteen-year-old case. Eresian, who challenges the 1993 closing of the case, challenges the following orders: (1) the September 7, 2006, Order Denying Eresian’s Motion to Strike and/or Vacate Order Dismissing Bankruptcy Case Nunc Pro Tunc, or in the Alternative, for Clarifica...
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ORDER OVERRULING TRUSTEE’S OBJECTION TO EXEMPTIONS Debtor Vikki J. Nickerson seeks to claim exemptions under § 522(d) of the Bankruptcy Code. She asserts that § 522(b) permits her to claim federal exemptions because she is ineligible to take advantage of either Missouri or Kansas exemptions due to the domiciliary requirements in § 522(b)(3)(A). The Trustee objects to the Debtor’s use of the f...
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OPINION The bankruptcy court issued a final order rejecting the Chapter 13 Trustee’s challenge to the constitutionality of 11 U.S.C. § 522(b)(3) 2 and overruling the Trustee’s objection to the Debtor’s exemption claims based on California law. The Trustee appealed. We AFFIRM. FACTS The Debtor, Stanley Vincent Urban (“Debtor”), resided in Montana when he filed a Chapter 13 Petition. Al...
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OPINION This case presents us with an issue of first impression regarding new section 503(b)(9) (“§ 503(b)(9)”) of the Bankruptcy Code, as amended in 2005.2 We expect that the issue is of great importance to many sellers of goods to troubled companies. The new provision gives expense-of-administration priority (“administrative priority”) to a claim for the value of goods received by a debtor with...
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375 B.R. 535 (2007) In re Natalie Dionne RODRIGUEZ, Debtor. Wells Fargo Financial Acceptance, Appellant, v. Natalie Dionne Rodriguez; Karla Forsythe, Chapter 13 Trustee, Appellees. BAP No. WW-07-1046-MoDJ, Bankruptcy No. 06-41999. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted on July 27, 2007. Filed August 28, 2007. *536 *537 Richard A. Hayden, Richard J. Hay...
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375 B.R. 558 (2007) In re MAPLE-WHITWORTH, INC., Alleged Debtor. Michael N. Sofris, APC, Appellant. v. Maple-Whitworth, Inc.; United States Trustee; Roxanne Kamel; Larry Weinstock; Emanuel Perez; Mica Bintu-Brown, Appellees. BAP No. CC-06-2096-KNB, Bankruptcy No. LA 04-32868 AA. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted on March 21, 2007. Filed September ...
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MEMORANDUM OPINION Debtor Chrysan L. Edighoffer (“Debtor”) filed a voluntary petition pursuant to chapter 7 of the Bankruptcy Code on November 9, 2006 (“Petition Date”). Along with the petition, Debtor filed various schedules, including Schedules I and J. Debtor also filed Form 22A Chapter 7 Statement of Current Monthly Income and Means-Test Calculation. Before the Court is Motion of United S...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter is before the Court following the trial of the “Complaint Objecting to Discharge Pursuant to § 523 of the Bankruptcy Code and for an Award of Damages” (the “Complaint”) filed by Anthony Wallace {“Wallace” or the “Plaintiff’) against James P. Davis {“Davis” or the “Defendant”). Al...
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375 B.R. 809 (2007) In re Frank John VACCARIELLO, III and Caron Courtenay Vaccariello, Debtors. No. 07-41034. United States Bankruptcy Court, N.D. Ohio. August 22, 2007. *810 Kyle B. Smith, Jefferson, OH, for Debtors. MEMORANDUM OPINION KAY WOODS, Bankruptcy Judge. Before the Court is United States Trustee's Motion to Dismiss Case Pursuant to 11 U.S.C. Section 707(b)(1) ("Motion to Dismiss") (Do...
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MEMORANDUM I. INTRODUCTION The matters before the Court are: (1) the “Application of Ablitt & Charlton, PC for Compensation as Counsel to Secured Creditor, EMC Mortgage Corporation,” as supplemented; (2) the “Application of Shapiro & Kreisman for Compensation as Counsel to Secured Creditor, Washington Mutual Bank (Predecessor-In-Interest to EMC Mortgage Corporation),” as s...
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MEMORANDUM This matter is before the court on the motion by Southern Adventist University (hereinafter “SAU”) for relief from the automatic stay provisions of 11 U.S.C. § 362(a) 1 , and the response thereto by the debtor. A hearing was conducted on May 3, 2007, and the parties were afforded additional time within which to submit briefs. After hearing argument of counsel and...
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OPINION Appellant trustee appeals from a summary judgment order holding that the perfection of a security interest in a Colorado motor vehicle relates back to the date of its “filing” under applicable Colorado statute. The bankruptcy court held that § 9-317(e) of the Uniform Commercial Code (“UCC”) as adopted in Colorado 1 is a “generally applicable law” that renders perfection of a security ...
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MEMORANDUM OF DECISION REGARDING MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT AND MOTION FOR SANCTIONS AGAINST HERBERT COHEN, ESQ. AND NANCY SUE KELLER, ESQ. I. Introduction The matters before the Court are the two motions of Alex Hermosilla (“Debtor”) *22 in which he seeks orders relating to the disposition of the postpetition sale proceeds of his former homestead. In his Motion for Appro...
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375 B.R. 165 (2007) In re TITUS & McCONOMY, LLP, a Pennsylvania Limited Liability Partnership, formerly known as and/or also known as Titus & McConomy, a Pennsylvania General Partnership, Debtor. Titus & McConomy, LLP, a Pennsylvania Limited Liability Partnership, formerly known as and/or also known as Titus & McConomy, a Pennsylvania General Partnership, Movant, v. TrizecHahn Gat...
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MEMORANDUM OPINION This adversary proceeding to determine whether the Defendants are entitled to receive a discharge stems from Defendants’ personal use of proceeds from the sale of certain real property that should have been used to pay off a loan Plaintiff extended to the Defendants. The Court held a trial on the merits and took the matter under advisement. Plaintiff asserts that th...
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MEMORANDUM DECISION ON MOTION OF ADELPHIA COMMUNICATIONS CORPORATION FOR SUMMARY JUDGMENT This is a contested matter concerning the objection by Debtor Adelphia Communications Corp. (“Adelphia ” or ‘ACC ”) to the proof of claim of Lucent Technologies, Inc. (“Lucent ”) in the amount of $44,721,519.78. Lucent’s claim is based upon several legal theories,...
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MEMORANDUM OPINION This matter came before the Court on July 19, 2007, after notice to all parties in interest, in Durham, North Carolina, upon cross-motions for summary judgment. Vicki L. Parrott, Emily C. Weatherford, and John A. Northen appeared on behalf of the Trustee. Lillian Watson and Stuart J. Glick appeared on behalf of Greenwich Insurance Company and Avalon Risk Associates, Inc...
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MEMORANDUM OPINION The Court in this adversary proceeding considers (i) the claims by plaintiff Nick Corp. against defendant Jim Shelton for fraud and fraudulent inducement, and (ii) Nick Corp.’s claim, based on veil-piercing theories, that defendants JNS Aviation, Inc., JNS Aircraft Sales, LLC, J. Malcolm Shelton, and James N. Shelton should be held liable to Nick Corp. for the under...
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OPINION I. INTRODUCTION Presently before the court is the “Debt- or’s Motion for Contempt Pursuant to 11 U.S.C. § 362(k) of the Bankruptcy Code” (“the Motion”) filed by Debtor Kameelah Mu’min (“the Debtor”). The respondent is the University of Pennsylvania (“Penn”). To decide the Motion, I must determine whether a university’s refusal to provide a transcript to a deb...
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REPORT AND RECOMMENDATION TO THE UNITED STATES DISTRICT COURT RECOMMENDING THE WITHDRAWAL OF THE REFERENCE OF THIS ADVERSARY PROCEEDING I. INTRODUCTION The issue presented is whether, in an adversary proceeding, a defendant waives *324 the right to a jury trial by filing a counterclaim against, and seeking attorney’s fees from, the bankruptcy estate. This Court believes ...
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Mick Chapel and Jennifer Chapel (the “Chapels”) and their attorney, Joseph Manges (“Manges”), cross-appeal 1 an order of the bankruptcy court finding that they violated the automatic stay and awarding compensatory and punitive damages to debtor David Brian Derringer (“Derringer”) in the total amount of $903. The sole issue presented to this Court is whether the bankruptcy court abuse...
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MEMORANDUM OPINION Debtor Mary Osborne asks the court to sanction Homeside Lending, Inc. 1 and its counsel, Stacy C. Wheat, for alleged misconduct in connection with a motion for relief from automatic stay. 2 The gist of the debtor’s complaint is that Homeside’s lawyer signed and filed a false affidavit to obtain relief from the automatic stay based on the debtor’s a...
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MEMORANDUM This matter is before the court on Susan R. Limor, Chapter 7 Trustee’s (hereinafter “Trustee”) objection to the Wallace Hill Billington’s (hereinafter “Debtor”) claimed exemptions in two insurance policies. The trustee contends that because the policies list the debtor’s non-dependent mother as the primary beneficiary, the exemptions taken by the debtor in the insurance pol...
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OPINION VACATING PORTION OF PREVIOUS OPINION This issue here, again, is whether, under Delaware law, the officers and directors of a wholly owned subsidiary owe fiduciary duties to the subsidiary, or only to its parent. In Collins I, 1 this Court concluded that the Delaware Supreme Court’s decision in Anadarko 2 held the subsidiary’s directors...
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MEMORANDUM OPINION This matter comes before the Court on Donna G. LeGrand’s motion to determine claim amount. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(B). After considering the *50 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 Bankrupt...
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ORDER ASSESSING SANCTIONS AGAINST CREDITOR CIT GROUP AND ITS COUNSEL ON THE TRUSTEE’S FIRST AND SECOND MOTIONS TO COMPEL The chapter 7 trustee Linda S. Parks moves for sanctions in connection with two motions to compel discovery from creditor CIT Group filed in this contested matter. The Court conducted a hearing on the first motion to compel on March 8, 2007 and on the second motion ...
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375 B.R. 481 (2007) In re James J. SIMONE, Debtor. James J. Simone, Plaintiff, v. United States of America, Indian Health Service, Defendants. United States of America, Counter-claimant, v. James J. Simone, Counter-defendant. Bankruptcy No. 05-94720. Adversary No. 06-09040. United States Bankruptcy Court, C.D. Illinois, Danville Division. September 27, 2007. *482 *483 *484 Gus R. Regas, Kankakee,...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Chapter 7 Trustee’s Motion to Vacate Conversion of Debtors’ Chapter 7 Case to Chapter 13. After an evidentiary hearing held on June 26, 2007, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1.On December 28, 2005, joint debtor, Angela Clarice Mercado (“Mrs.Mercado”), so...
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375 B.R. 179 (2007) In re William M. MORRISON, Debtor. William M. Morrison, Movant, v. Office of the U.S. Trustee, Office of the Chapter 13 Trustee, American Express Centurion Bank, Cardmember Services, Chase Bank USA N.A, by Ecast Settlement Corporation as its Agent, Discover, Discover Bank/Discover Financial Services, Ecast Settlement Corporation, Assignee of Household Bank, First Commonwealth ...
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*57 AMENDED MEMORANDUM OF DECISION Before the Court is the United States Trustee’s (the “Trustee”) “Motion to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(2) and to Extend Time to Object to Discharge Pursuant to 11 U.S.C. § 727 and Move to Dismiss Case Pursuant to 11 U.S.C.. § 707(b)(3)” (the “Motion to Dismiss”), and the debtors’ objection thereto. Specifically, the Court mus...
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MEMORANDUM OPINION This matter comes before the Court on the amended complaint of David E. Gro-chocinski, the Chapter 7 case trustee (the “Trustee”), Gregory Steiner, and AgriStar Frozen Foods, Inc. (collectively the “Plaintiffs”) to revoke the discharge of Jeffery Eckert (the “Debtor”) pursuant to 11 U.S.C. §§ 727(d)(1), (3), and (a)(6). For the reasons set forth herein, the Court gr...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Kathy D. Lindemann (the “Debtor”) for summary judgment pursuant to Federal Rule of Bankruptcy Procedure 7056, which incorporates by reference Federal Rule of Civil Procedure 56, on the complaint filed by William D. Fiala (the “Plaintiff’) which seeks to deny the Debtor a discharge pursuant to 11 U.S.C. § 727(a)(2)(...
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375 B.R. 41 (2007) In re Jan Richard SCHLICHTMANN, Debtor. No. 91-18387-RS. United States Bankruptcy Court, D. Massachusetts. September 25, 2007. *42 *43 *44 *45 *46 Garve Ivey, Jr., Ivey & Ragsdale, Jasper, AL, for Debtor. Jan Richard Schlichtmann, Jan R. Schlichtmann Atty. at Law PC, Prides, Crossing, MA, pro se. MEMORANDUM OF DECISION ON DEBTOR'S MOTION FOR SANCTIONS FOR VIOLATION OF DISCH...
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MEMORANDUM OPINION The Court held a hearing on July 18, 2007 on the Final Fee Application of Hoh-mann, Taube & Summers, LLP, Counsel for Debtor in Possession (“Fee Application”). Such Fee Application was objected to by Fire Eagle, LLC, the primary creditor in the case at that time. At the end of the hearing, the Court took the matter under advisement. This Memorandum Opinion shall con...
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DECISION GRANTING SANCTIONS FOR MOTION TO LIFT STAY BASED ON FALSE CERTIFICATION In In re Gorshtein, 285 B.R. 118 (Bankr. S.D.N.Y.2002) I granted sanctions against secured creditors in three separate cases where the secured creditors moved to vacate the automatic stay on the basis of false certifications of post-petition defaults. The Gorshtein decision was “provoked by an apparently incr...
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MEMORANDUM OF OPINION This dispute arises out of a refinancing transaction in which First Liberty Financial, Inc., owned and run by the debtor-defendant Alan Ma, served as a mortgage broker for the plaintiff Elaine Mayher. Mayher filed a complaint in Ma’s chapter 7 case asking that a debt owed to her by First Liberty be declared nondischargeable as against Ma individually under 11 U.S.C. § 52...
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ORDER Before the Court is the United States Trustee’s motion to dismiss the above captioned case pursuant to 11 U.S.C. § 707(b)(3), GE Money Bank’s response, and the debtor’s response. The Court has jurisdiction over this matter under 28 U.S.C. § 1334 and 28 U.S.C. § 157, and it is a core proceeding under 28 U.S.C. § 157(b)(2)(A). The Court set the United States Trustee’s motion to dismiss for ...
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OPINION This case comes before the Court for a determination of whether Chapter 13 debtors, calculating their disposable income pursuant to § 1325(b)(2) and (b)(3) and § 707(b)(2), may claim an ownership deduction for a vehicle they own free and clear of liens and for which they make no secured debt payment. This issue, which arises under the Bankruptcy Abuse Prevention and Consumer Protection ...
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MEMORANDUM OPINION IN SUPPORT OF DECLARATORY JUDGMENT THAT CLAIMS OF RYAN AND QUINN GOLD HAVE NOT BEEN DISCHARGED This memorandum opinion encompasses the bankruptcy court’s findings of facts and conclusions of law, pursuant to Federal Rules of Bankruptcy Procedure 7052, in connection with a trial held May 21, 2007 and June 4, 2007. The trial was in connection with the Complaint of Rya...
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Decision on Motion to Toll Exemption Period This decision involves a debtor’s homestead exemption in the proceeds from the sale of one of two tracts of land, both of which singly constituted the debtor’s homestead. Proceeds from the sale of a homestead normally retain their homestead exemption for six months, within which time they must be re-invested in the acquisition of a new homestead...
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MEMORANDUM OPINION REGARDING DEFENDANT LASALLE BANK N.A.’s MOTION FOR STAY OF COUNT VIII JUDGMENT PENDING APPEAL Following trial and entry of judgment against it, the Defendant LaSalle Bank N.A. (“Defendant”) filed its Motion for Stay Pending Appeal as to the Amended Judgment on Count VIII. For reasons set forth below, Defendant’s Motion for Stay Pending Appeal as to Count VIII will be denied...
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ORDER ON DEBTORS’ OBJECTION TO PROOF OF CLAIM OF INTERNAL REVENUE SERVICE (Claim No. 2) THIS CASE came before the Court for hearing to consider the Debtors’ Objection to Proof of Claim of Internal Revenue Service (Claim No. 2). The Internal Revenue Service (IRS) filed Claim Number 2 in the total amount of $22,569.68. The Claim is based on the Debtors’ income tax liability for the 2002 tax yea...
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OPINION 1 Presently pending before the Court is the Movants’ Motion to Convert the instant small business Chapter 11 case to a Chapter 7 case pursuant to 11 U.S.C. § 1112(b)(1). 2 A protracted hearing was held on September 13, 2007 at which the Debtor’s sole corporate officer, S. Mark Poler, testified regarding the current status of the company, the bankruptcy, and any ...
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MEMORANDUM OPINION AND ORDER ON BARBARA BERG’S MOTION TO COMPEL COMPLIANCE WITH COURT ORDERS Before the Court is the Motion of Barbara Berg to Compel Bank of Blue Valley to Comply with this Court’s Orders of April 15, 2005 & January 24, 2007 & for Determination if Bank of Blue Valley is in Contempt of Such Orders (“Motion”). Barbara Berg, the spouse of the Debtor, appears by Robert A. Kum...
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ORDER FOR JUDGMENT This matter came before the Court for trial on the debtors’ complaint seeking discharge of student loans pursuant to 11 U.S.C. § 523(a)(8). David G. Keller appeared on behalf of the plaintiffs, debtors Matthew and Julie Collins. Henry T. Wang and A.L. Brown appeared on behalf of defendant Educational Credit Management Corporation (ECMC). 1 At the conclusion o...
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AMENDED MEMORANDUM OF DECISION 1 The Debtor obtained a windfall of sorts when she sold her condo in March 2005 to Michelle LaBree, as a consequence of a flawed title report for which she bore no responsibility. At issue is whether Ms. LaBree (or, more accurately, her subrogee title insurer) can except from the Debtor’s discharge the claim resulting from that windfall. Procedural Status...
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MEMORANDUM DECISION DISMISSING CHAPTER 7 CASE WITHOUT PREJUDICE By motion dated April 9, 2007, the United States Trustee (the “UST”) seeks dismissal of this Chapter 7 bankruptcy case and a bar to the debtor, Rafael Ventura (the “Debtor”), filing another Chapter 7 case for one year based on, among other things, the Debtor’s failure to cooperate with the firm conducting a random audit of hi...
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Memorandum Opinion Before the Court is the Motion of Debt- or/Defendant (“Debtor”) to Dismiss the above-captioned adversary action (the “Motion”). The complaint (the “Complaint”) filed by plaintiff Samuel Dalem-bert (“Plaintiff’) seeks a determination pursuant to 11 U.S.C. § 523(c) that Debt- or’s obligations to Plaintiff are excepted from discharge under § 523(a)(2). For the reasons ...
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DECISION & ORDER The trustee has moved to dismiss this bankruptcy case for the reason that the debtor failed to file all of the payment advices related to employment during the sixty days prior to the filing of her petition. On the grounds stated hereafter, this motion is denied. *371Pursuant to 11 U.S.C. § 521(i)(l), a bankruptcy case “shall be automatically dismissed” whenever “an individual de...
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MEMORANDUM REGARDING DISMISSAL The United States Trustee has filed a motion to dismiss this case on the grounds that granting relief to the debtor would be an abuse of the provisions of chapter 7. The debtor has opposed the motion. The motion to dismiss is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (O). This court has jurisdiction pursuant to 28 U.S.C. § 1334(b) and the district cou...
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ORDER On March 23, 2007, the Trustee filed this adversary proceeding to recover a preferential transfer against the Defendant, Pan-Glo Services, LLC. The Defendant filed a timely answer and a motion for summary judgment on the grounds that the statute of limitations expired prior to the date that the adversary proceeding was filed. The Trustee filed a timely response to the motio...
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*560 ORDER GRANTING DEBTOR’S MOTION FOR RECONSIDERATION OF ORDER DENYING DEBTOR’S MOTION FOR ATTORNEYS FEES COSTS AND SANCTIONS AND DENYING REQUEST FOR ATTORNEYS FEES AND COSTS THIS MATTER came before the Court on the Full Gospel Assembly of Delray Beach’s (the “Debtor”) Motion to Rehear or Reconsider Order Denying Debtor’s Motion for Attorneys Fees and Cost and *561 ...
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT, MATTHEW STRAUSBAUGH’S, MOTION FOR AN AWARD OF ATTORNEY FEES AND COSTS UNDER § 523(d) AND BANKR. R. 9011 Plaintiff Andrew Swartz (“Swartz”) initiated this adversary proceeding to determine the dischargeability of a debt owed by Matthew Strausbaugh (“Strausbaugh”), the debtor and Swartz’s former business associate. In the original complain...
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MEMORANDUM OPINION AND ORDER DENYING MOTION TO AMEND JUDGMENT ENTRY AND FOR RECONSIDERATION This matter is before the Court on the Motion to Amend Judgment Entry and for Reconsideration (“Motion to Amend”) (Doc. 23) filed by Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for GreenPoint Mortgage Funding, Inc. (“GreenPoint”). Plaintiff William Todd Drown (...
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OPINION AND ORDER SUSTAINING CAPITAL ONE AUTO FINANCE’S OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN Capital One Auto Finance (“Capital One”) has filed an objection to confirmation (“Objection”) of the Debtor’s Chapter 13 plan (“Plan”), arguing that the Plan’s proposed treatment of its secured claim violates the requirements imposed by the so-called hanging paragraph of 11 U.S.C. § 1325(a). ...
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375 B.R. 421 (2007) In re William R. RAPP and Gayle F. Rapp, Debtors. Shirley M. Schafer, Plaintiff, v. William R. Rapp, et al., Defendants. Bankruptcy No. 06-52794, Adversary No. 06-02543. United States Bankruptcy Court, S.D. Ohio, Eastern Division at Columbus. September 18, 2007. *422 *423 *424 James E. Nobile, Nobile & Thompson Co., L.P.A., Hilliard, OH, for Plaintiff. Pamela N. Maggied, C...
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MEMORANDUM OPINION ON PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND MOTION OF DEFENDANT ARGENT MORTGAGE COMPANY, LLC, FOR SUMMARY JUDGMENT I. Introduction The issue presented by the parties’ cross-motions for summary judgment is whether a bankruptcy trustee in his/her role as a hypothetical, good-faith purchaser for value may avoid a consensual mortgage between a debtor and t...
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MEMORANDUM OPINION ON DEBTOR’S MOTION TO EXTEND THE AUTOMATIC STAY On July 2, 2007, George McKinnon (“Debtor”) filed a Motion For Continuation of Automatic Stay (“Motion”) seeking 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). At hearing, a secured creditor, Prime South Bank (“Prime South”), appeared in opposit...
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MEMORANDUM OF OPINION This case is before the court on the objections to confirmation filed by creditor Nuvell Credit Corporation (“Nuvell”) and creditor WFS Financial, Inc. (“WFS”). Both objections were based on debtors’ proposed treatment of the creditors’ secured vehicle loans. Through the plan, debtors proposed to bifurcate the loans into secured and unsecured portions. Creditors argu...
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OPINION RESOLVING SHOW CAUSE ORDER ENTERED MARCH 8, 2007 INTRODUCTION Over the last two decades, there has been an exponential increase in trading of *223 claims against debtors who have filed bankruptcy petitions. Once a fairly low-volume activity restricted to chapter 11 cases (and primarily undertaken to achieve strategic influence in chapter 11 cases), claims trading...
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*899 OPINION This matter is before the Court for confirmation of the Amended Chapter 13 Plan filed by the Debtors, Kenneth E. Erwin and Melissa A. Erwin (DEBTORS). A secured creditor, Americredit Financial Services, Inc. (AFS), objects on the basis that the Amended Plan fails to provide for its secured claim to be paid in equal monthly payments. This Court determines that the equal payment ...
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MEMORANDUM OPINION 1 Before the Court is the motion (the “Motion”) of Carlyle One Wilshire II, L.P. (the “Landlord”), to compel the payment of certain obligations pursuant to section 365(d)(3)of the Bankruptcy Code. The Debtors oppose the Motion. For the reasons stated below, the Court will deny the Motion in part and grant the Motion in part. BACKGROUND On April 30, 2007 (the “Petiti...
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375 B.R. 580 (2007) In re WADE COOK FINANCIAL CORPORATION; The Stock Market Institute of Learning, Inc.; Information Quest, Inc.; Lighthouse Books, Inc., fka Lighthouse Publishing Group, Inc., Debtors. United States Of America, Appellant, v. Diana K. Carey, Chapter 11 Trustee, Appellee. BAP No. WW-06-1279-DRS, Bankruptcy No. 02-25434-TTG, Adversary No. 06-01133-TTG. United States Bankruptcy Appel...
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For the reasons explained below, we reverse the bankruptcy court’s order confirming the Debtors-Appellees’ Chapter 13 plan and remand to the bankruptcy court ' for further proceedings in accordance with this opinion. I. Background In 2002, Debtor Lynda Adams was appointed by a Wyoming state court as the personal representative for the probate estate of Mark Schanbacher (“Probate E...
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OPINION Appellant Union Home and Industrial, Inc. appeals an order of the bankruptcy court denying its application for entry of a final decree in a Chapter 11 case. The bankruptcy court found the case had not been fully administered and refused to enter the final decree because final fee applications had not yet been submitted or determined. In the absence of any abuse of discretion, we AFFIRM....
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AMENDED ORDER This case is before the court on the United States’ motion to reconsider allowance of attorney fees and non-operating expenses in the interim cash collateral order entered June 19, 2007. The debtor is a limited liability company that owns and operates an assisted living facility in Brunswick County, North Carolina, known as Corinthian Place (“the Project”). The Project is fund...
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OPINION RE: DEFENDANT’S MAY 31, 2007 MOTION TO DISMISS ADVERSARY PROCEEDING OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Jeff A. Moyer, the Chapter 7 trustee in this case, commenced an adversary proceeding against ABN AMRO Mortgage Group, Inc. (“ABN”) to avoid a mortgage ABN claims against Debtors’ residence. ABN in turn has filed a motion that it describes in the alternative as eithe...
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MEMORANDUM DECISION This matter came on for hearing on September 6, 2007, on the Motion for Declaratory Judgment Re Enforceability of Judgment (Motion) filed by the Chapter 7 Trustee (Trustee) and Erik and Daphne Clarkson (Debtors). Based on the pleadings and arguments presented, the Court’s findings of fact and conclusions of law are as follows: FINDINGS OF FACT In November, 2000, the Debt...
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MEMORANDUM DECISION This matter came on for a three day trial commencing June 11, 2007. Closing arguments were heard on July 2, 2007. In accordance with his complaint, Robert K Stewart (Stewart) seeks an order disallowing the claim of Timothy Donovan (Donovan) against Pacific Northwest Storage LLC (Debtor) and awarding him the proceeds of the sale of the real property and improvements loc...
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REASONS FOR DECISION The present matter before the court is a Motion Seeking Permission to Prosecute Civil Litigation Against Goldin Associates, LLC in the United States District Court for the Western District of Louisiana (the “Motion for Leave”) filed by Central Boat Rentals, Inc. (“Central”). Goldin Associates, LLC (“Goldin”) is the trustee of a litigation trust created by a confirmed ...
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MEMORANDUM DECISION I. INTRODUCTION The Debtors, relying on a provision added to Chapter 12 by The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. 109-8, 119 Stat. 23, seek to have the capital gains tax generated by the postpetition sale of their farm treated as a liability of their Chapter 12 Estate (“Estate”). However, the new provision, 1...
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MEMORANDUM DECISION I. PRELIMINARY STATEMENT This matter comes before the Court as a result of a “Motion to Compel Turnover of Homestead Sale Proceeds” filed by Lawrence J. Warfield, the Chapter 7 Trustee, against Damian Roderick White, the Debt- or. Initially the Debtor acted pro se, his prior counsel having withdrawn. 1 However, during the course of the pre-tr...
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Peggy Schoenhofer (“Schoenhofer”) appeals from the bankruptcy court’s 1 order denying her motion to set aside a default judgment entered against her. We affirm. I. Schoenhofer owned and operated a Kentucky Fried Chicken franchise in Wichita, Kansas. Debtor, Valley Food Services, LLC (“Valley Food”), entered into a distribution agreement with Schoenhofer whereby Valley Food ...
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MEMORANDUM In this adversary proceeding, the plaintiff McKee Builders, Inc. seeks a determination of nondisehargeability under 11 U.S.C. § 523(a)(2). The trial of this adversary proceeding was held on September 13, 2007. The record before the court consists of 13 exhibits introduced into evidence, together with the testimony of Jeffrey McKee, the president and sole shareholder of the ...
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MEMORANDUM OPINION This case concerns the requirements under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 that an individual obtain credit counseling prior to filing a petition in bankruptcy and file a certificate from the credit counseling agency certifying this fact. Bankruptcy Code §§ 109(h)(1) and 521(b)(1). In this chapter 7 asset case, the debtor stated under oath...
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MEMORANDUM OPINION ON OFFICIAL EMPLOYMENT-RELATED ISSUES COMMITTEE OF ENRON CORP.’S OBJECTIONS TO DEBTOR’S CLAIM OF THE HOMESTEAD EXEMPTION I. Introduction Kevin Presto (the Debtor) was a vice-president at Enron North America Corporation prior to the monumental collapse and eventual bankruptcy of its parent company, Enron Corporation (Enron). 1 Sev *563 er...
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ORDER On the 30th and 31st days of July, 2007, the above-referenced adversary proceeding came on for trial only as to Defendant Charles M. Laster. Appearances were entered by Clifton Naifeh, Attorney for Plaintiff, and Robert Inglish, Attorney for Defendant Charles M. Laster. After reviewing the evidence and testimony, this Court does hereby enter the following findings and conclusion...
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375 B.R. 740 (2007) In re Gary HARTMAN and Mary Ann Hartman, Debtors. Gary Hartman and Mary Ann Hartman, Movants, v. Pennsylvania Department of Revenue and Internal Revenue Service, Respondent. No. 05-24382. United States Bankruptcy Court, W.D. Pennsylvania. October 4, 2007. *741 *742 Donald R. Calaiaro, Esquire, Calaiaro, Corbett & Brungo, P.C., Pittsburgh, PA, for Debtors. Nicholas J. Lambe...
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MEMORANDUM OF OPINION This is an adversary proceeding brought by the Chapter 11 Trustee of the debtor, MarketXT Holdings Corp. (the “Debtor”), and its unsecured creditors committee (together, “Plaintiffs”). Defendants are Rauf Ashraf and several funds that he controls (collectively, “Defendants”), including “Empyrean Investment Fund, LP (‘EIF’) and Empyrean General Partner, LLC (‘EGP’)”. ...
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OPINION GRANTING DEFENDANT PLANTE & MORAN, LLP’S MOTION TO DISMISS AND DENYING OTHER REQUESTED SANCTIONS This is a complex accounting malpractice action brought by Mark H. Shapiro, the Chapter 7 trustee of the estate of the debtor, Connolly North America, LLC, against Plante & Moran, LLP (“Plante Moran”). The Trustee seeks damages of approximately $4.8 million, for alleged malpractice by ...
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ORDER DISMISSING APPEAL Debtor Union Home and Industrial, Inc. (“Appellant”) appeals an order of the bankruptcy court granting in part, and denying in part, the Appellant’s application to employ counsel. The order sua sponte vacates an earlier interim order of the bankruptcy court approving employment of appellant’s counsel nunc pro tunc to the date of the Appellant’s...
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MEMORANDUM OPINION This matter comes before the Court on CNH Capital America, LLC and Sumter Bank & Trust’s 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...
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MEMORANDUM DECISION GRANTING MOTION TO DISMISS THE INVOLUNTARY PETITION The alleged debtor, Compañía de Ali-mentos Fargo, S.A. (“Fargo”), is an Argentine company. Since 2002, it has been pursuing a concurso preventivo (the “Con-curso ”), a reorganization proceeding, in Argentina. Argo Capital Investors Fund SPC, Rainbow Global High Yield Fund, Rainmac Fund and the St...
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MEMORANDUM OPINION AND ORDER RE: CHAPTER 13 TRUSTEE’S OBJECTION TO CONFIRMATION OF DEBTORS’ PROPOSED PLAN AND MOTION TO DISMISS CASE This matter comes before the Court on the following pleadings: (1) the chapter 13 trustee’s “Objection to Confirmation and Motion to Dismiss” [docket # 21]; (2) debtors’ response and brief in opposition to the chapter 13 trustee’s objection to confirmation and mot...
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DECISION & ORDER In the only unresolved part of this adversary proceeding, a creditor seeks to impose liability upon the debtor’s counsel for damages resulting from assistance that the attorney provided in support of his client’s allegedly deceitful conduct. The defendant now moves to dismiss this complaint for failure to state a cause of action. In 1991, Daniel H. Williams, III ...
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OPINION GRANTING IN PART, DENYING IN PART, CLAIMANTS’ MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART, DENYING IN PART, DEBTOR’S MOTIONS FOR SUMMARY JUDGMENT I. INTRODUCTION On July 21, 2002, and continuing thereafter, WorldCom Inc. and certain of its subsidiaries (hereinafter “WorldCom” or “Reorganized Debtor”) filed for bankruptcy under Chapter 11 of the Bankruptcy Code in the Southe...
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MEMORANDUM OF DECISION AND ORDER: (1) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; AND (2) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT For the reasons stated below, the Court will grant the Defendant’s motion for summary judgment and deny the Plaintiffs motion for summary judgment. Background The Plaintiffs complaint seeks an exception to the Debtor’s discharge pursuant to 11 U...
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ORDER GRANTING APPLICATION BY TRUSTEE TO APPROVE EMPLOYMENT OF GENERAL COUNSEL, LAW OFFICE OF GEORGE “DAVE” GIDDENS, P.C. PURSUANT TO § 327 THIS MATTER is before the Court on the Application by Trustee to Approve Employment of General Counsel, Law Office of George “Dave” Giddens, P.C. Pursuant to § 327 (“Application to Employ”)(Docket # 413). Creditor Martin S. Friedlander objected to...
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MEMORANDUM OPINION The chapter 7 trustee, Linda S. Parks, objects to debtor’s claim of homestead exemption under 11 U.S.C. § 522(p)(l), arguing that debtor acquired an interest in a homestead in excess of $125,000 during the 1,215 day period prior to filing bankruptcy. 1 The trustee moves for summary judgment on her objection. 2 The debtor opposes the trustee’s m...
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ORDER DENYING DEBTOR’S MOTION TO REDEEM COLLATERAL OF HOUSEHOLD BANK (SB), N.A./ BEST BUY CO., INC. This matter came before the Court on September 4, 2007, on Motion of the Debt- or to Redeem Collateral of Household Bank (SB), N.A./Best Buy Co., Inc. The United States Trustee filed an Objection to the Motion to Redeem. Because I do not believe the Bankruptcy Code authorizes a debtor t...
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OPINION CONCERNING (I) MOTION OF OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR SUMMARY JUDGMENT ON ITS CLAIM TO AVOID AND RECOVER TRANSFER TO DEFENDANT AMANDA K. MARTIN AND ON DEFENDANT’S COUNTERCLAIMS/THIRD-PARTY CLAIMS FOR BREACH OF CONTRACT AND FRAUD; (II) AMANDA K. MARTIN’S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF/COUNTER-DEFENDANT AZURIX CORP.; AND (III) MOTION FOR SUMMARY JUDGMENT OF C...
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MEMORANDUM OF DECISION This matter is before the Court to consider confirmation of the Debtors’ First Amended Chapter 13 Plan proposed by Elvin and Dianna Sadler (“Debtors”), the joint debtors in the above-referenced Chapter 13 case. Ronald E. Stadtmueller, Chapter 13 Trustee, objected to the confirmation of the Plan on two grounds: that the Debtors are not applying all of their projected dis...
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ORDER SUSTAINING OBJECTION TO CONFIRMATION This matter is before the court on a creditor’s Objection to Confirmation of the debtors’ Chapter 13 Plan. That Plan proposes to bifurcate the creditor’s secured claim in the debtors’ recently purchased car because as part of the purchase, the creditor financed the “negative equity” in the debtors’ trade-in vehicle. The court has concluded that the c...
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MEMORANDUM OF DECISION In this action, the Court examines whether the retention of a security interest by the seller of a pickup truck to the debtor shortly before bankruptcy may be avoided by a trustee as a preference under § 547 1 of the Bankruptcy Code. The Court concludes that the transfer was indeed a preference, and that the exception to avoidance relied upon by the selle...
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MEMORANDUM DECISION ON AMERICAN GENERAL FINANCE OF UTAH, INC.’S MOTION TO AMEND PROOF OF CLAIM AND DEBTOR’S OBJECTION TO CLAIM OF AMERICAN GENERAL FINANCE OF UTAH I. JURISDICTION Before the Court are two matters related to the only claim filed by a prepetition creditor in the confirmed chapter 13 case of Susan Ferre Stauffer (the “Debt- or”). American General Finance of Utah, Inc. (AGF) has f...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Gino’s East Home, LLC (the “Creditor”) for relief from the automatic stay under 11 U.S.C. § 362(d) and the objection thereto of Joseph A. Baldi, the Chapter 7 trustee (the “Trustee”) of the bankruptcy estate of Pelham Enterprises, Inc. (“Pelham”). For the reasons set forth herein, the Court denies the motion. The C...
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MEMORANDUM OPINION This matter came on for trial on March 5 through March 14, 2007 on the complaint of the debtors, OCA, Inc. And Orthodontic Centers of Georgia (collectively “OCA”) against Dr. Hector M. Bush and Hector M. Bush, P.C. (collectively “Bush”) and the counterclaim thereto. As set forth more fully below, the court finds that the business services agreement between Bush and ...
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ORDER GRANTING, IN PART, PLAINTIFFS’ JOINT MOTION FOR SUMMARY JUDGMENT This matter is before the Court on the Joint Motion for Summary Judgment filed by the Plaintiffs and the Response thereto filed by Defendant. The Court, having reviewed the Motion, the Response, and the supplemental materials submitted by Plaintiffs Timberline Kitchen and Bath, Inc. and BRR Enterprises, Inc., and being...
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MEMORANDUM OPINION This Chapter 13 case should be titled “The Bankruptcy Code v. The Official Bankruptcy Forms.” The title portends the answer, because as we all know, the Bankruptcy Code always wins. The issue is when a debtor’s business expenses may be deducted in the 11 U.S.C. § 1325 calculations — before the income test of 11 U.S.C. § 1325(b)(3) is applied or after-wards when determining di...
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MEMORANDUM OPINION This matter is before the Court upon the Chapter 13 Trustee’s objection to confirmation. Specifically, the Chapter 13 Trustee asserts that the debtor is not entitled to a discharge pursuant to 11 U.S.C. § 1328(f), which was added to the Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (hereinafter “BAPCPA”), and that no provision in the d...
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MEMORANDUM The chapter 13 trustee has objected to confirmation of Mr. Spurgeon’s proposed chapter 13 plan on the ground that it does not satisfy the disposable income test. The trustee contends the plan does not require Mr. Spurgeon to use all his projected disposable income for payments under the plan. 11 U.S.C. § 1325(b)(1). Mr. Spurgeon calculated disposable income by deducting ins...
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MEMORANDUM OF DECISION This case is before the court on the United States Trustee’s (“the UST”) motion to dismiss Debtors’ Chapter 7 case for abuse under 11 U.S.C. § 707(b)(3) [Doc. #20] and Debtors’ response [Doc. #23], A hearing was held that Debtors, their counsel and counsel for the UST attended in person and at which the parties had the opportunity to present testimony and other evidence...
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*142 OPINION 1 Before the Court is the Objection of the FLYi and Independence Air Distribution Trust (the “Trust”) to the claim of a former landlord, Loudoun Gateway III, L.L.C. (“Loudoun”). For the reasons stated below, the Court will sustain the objection. 2 I.BACKGROUND On November 7, 2005, FLYi, Inc. (“FLYi”) and several of its affiliates (collec...
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MEMORANDUM OPINION 1 The Court has been asked to resolve a dispute involving the interpretation of a settlement agreement which the Court previously approved. The decision will determine the funds available for distribution to creditors. I. BACKGROUND 2 Plassein International Corp. and affiliated companies (“Debtors” or “Estate”) 3 *129 filed these cases in May 2003. In connecti...
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MEMORANDUM DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT^ OPPOSITION AND REQUEST FOR JUDGMENT Introduction Plaintiff Michal Saidon Schwartz a/k/a Michal Saidon (“Plaintiff’) brought this adversary proceeding against the debtor, Steven Shea Schwartz (“Defendant”), seeking a ruling that the claims she asserts against the Defendant are non-dis-chargeable domestic support ob...
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MEMORANDUM-OPINION This matter is before the Court on the Debtors’ Motion to Strip Off a Junior Lien of Creditor American Express Centurion Bank (“Bank”). The Court considered the arguments of counsel at the hearing held on the matter. For the following reasons, the Court DENIES the Motion. FACTUAL BACKGROUND Debtors, Rick Grimes and Trenia Grimes (“Debtors”) represent that Creditor Ban...
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ORDER This matter comes before the Court on Creditor GMAC’s objection to a Chapter 13 plan proposed by Wendy W. Macon (Debtor). GMAC claims a purchase money security interest in a Vehicle that Debtor purchased within the 910 days preceding her bankruptcy filing. GMAC contends that Debtor may not value its claim pursuant to 11 U.S.C. § 506(a)(1) and that its entire claim should be treated as a s...
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FINDINGS OF FACTS, CONCLUSION OF LAW, MEMORANDUM OPINION IN THIS Chapter 7 liquidation case, the Trustee of the estate of F. Kelley Landol-phi (Debtor), Diane Jensen (Trustee) filed an Amended Complaint setting forth three separate claims in three separate counts. The claim in Count I of the Complaint is based on 11 U.S.C. § 544(b) and FLA. STAT. ch. 726.105(1)(a) (2007). The claim is based o...
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ORDER ON MOTION FOR RULE TO SHOW CAUSE (Doc. No. 53) THE MATTER under consideration in this Chapter 7 liquidation case is a Motion for Rule to Show Cause, filed by the Debt- or, Robert A. Mobley (the Debtor), against R. David Meloney (Meloney) and Sydney Blum (Blum) and their attorney, Ludwig J. Abruzzo, Esquire (Abruzzo) (collectively Respondents), to appear before this Court an...
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AMENDED FINDINGS OF FACTS, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE GENESIS of this present controversy is a suit filed by Doris A Reynolds (Reynolds or Plaintiff) against Angela Trafford (Debtor) in the Circuit Court in and for Collier County, Florida. The suit terminated in a Judgment entered against the Debtor and in favor of Reynolds in the amount of $218,442.00 (Plaintiffs Exhibit N...
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MEMORANDUM OPINION PARTIALLY GRANTING AND PARTIALLY DENYING DEFENDANTS’ PARTIAL MOTION FOR SUMMARY JUDGMENT The defendants, James and Susan Hinton, seek a summary judgment (Doc. No. 35) (the “Motion”) that their interests in their home and large federal tax refunds, owned by them as tenants by the entire-ties, are not subject to curtailment as fraudulent transfers under Section 522(o)...
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MEMORANDUM I. On September 28, 2007, this court entered an Order (“the Remand Order”) remanding the above-captioned adversary proceeding to the court from which it originated, the Court of Common Pleas of Philadelphia County (“the CP Court”). On October 3, 2007, Defendant George Junior Republic (“GJR”) filed a notice of appeal from the Remand Order. Presently before the court is ...
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MEMORANDUM DECISION CONCERNING CLASSIFICATION AND TREATMENT OF ASBESTOS PERSONAL INJURY CLAIMS The debtor, Quigley Company Inc. (“Quigley”), has filed a plan that includes a single class of claimants holding personal injury claims that arose from exposure to asbestos (the “PI Claimants”). A majority of the PI Claimants entered into prepetition settlements (the “Settling PI Claimants”) wit...
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MEMORANDUM OPINION ON UNITED STATES TRUSTEE’S MOTION TO DISMISS PURSUANT TO 11 U.S.C. § 707(b) I. Introduction On October 31, 2006, Vickie and Christopher Brown (the Debtors) filed a Chapter 7 petition, and indicated that the presump *603 tion of abuse did not arise. The United States Trustee (UST) filed a motion to dismiss pursuant to 11 U.S.C. § 707(b)(2) arguing that the presumption of...
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MEMORANDUM OF OPINION Debtor Arthur M. Volpe filed this adversary proceeding against the Internal Revenue Service seeking a declaratory judgment that his federal tax debts for the years 1997, 1998, and 1999 are dischargeable in his chapter 7 ease. 1 The IRS responded that the debtor’s liabilities for those years are excepted from discharge under 11 U.S.C. § 523(a)(1)(C) because the debtor w...
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MEMORANDUM OPINION Before the court is creditor Wells Fargo’s (“Fargo”) objection to confirmation of Debtor Eloise Spratling’s (“Debtor”) Chapter 13 plan wherein Fargo’s secured claim in Debtor’s 2005 Chevrolet would be bifurcated into secured and unsecured portions and “crammed down.” At issue is whether Fargo holds a purchase money security interest (“PMSI”) in Debtor’s vehicle. It has previo...
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MEMORANDUM OPINION AND ORDER This declaratory judgment action is before the Court on Plaintiffs motion for summary judgment 1 and Defendants H. Kent Desselle’s and Check Electric Construction Company, Inc.’s motion to dismiss. 2 The Court has jurisdiction under 28 U.S.C. §§ 157 and 1334 over issues regarding Debtors’ Chapter 13 plan obligation to assign a lawsuit to ...
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ORDER ON TRUSTEE’S OBJECTION TO CLAIM OF EXEMPTION (Doc. No. 8) The Florida Legislature in its last session passed Senate Bill 2118 modifying and *414 codifying Section 222.25 of the Florida Statutes. The relevant Florida Statute § 222.25(4) provides: 222.25 Other individual property of natural persons exempt from legal process.- — -The following property is exempt from attachment, ga...
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*282 MEMORANDUM OPINION This matter came before the Court on April 13, 2007, upon a Motion to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(2), or in the Alternative, Pursuant to 11 U.S.C. § 707(b)(3) (the “Motion to Dismiss”), filed by the United States Bankruptcy Administrator (the “Bankruptcy Administrator”) on December 6, 2006. 1 Thomas C. Flippin appeared on behalf of Debbie H. Sale (t...
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OPINION When debtors filed their chapter 13 case, 2 they were in default on a contract for deed involving their principal residence. The bankruptcy court held that § 108(b) trumped § 1322 so that the debtors had only 60 days after the petition date in which to cure the default. The court further determined that the seller was entitled to terminate the debtors’ equitable interes...
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OPINION 1 Related to Docket No. 25 This is a case about a $200,000 license plate. The Debtor filed a petition under Chapter 7 of the Bankruptcy Code (the “Code”) and failed to schedule his ownership of Delaware motor vehicle license plate number sixty-seven (the “License Plate”). The Debtor voluntarily converted his case to a case under Chapter 13 of the Code and the Chapter 7 trustee, ...
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MEMORANDUM DECISION ON DEBTOR’S OBJECTION TO CLAIM OF FTB Before the Court is the objection by Debtor Patricia Vignola (“Debtor”) to the claim of the California Franchise Tax Board (“FTB”). Debtor objects to the *274 FTB’s claim relating to unpaid California state income taxes for tax year 1991 on the ground that the claim was improperly calculated. Specifically, the dispute ...
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MEMORANDUM Two motions are presently before me in this chapter 7 bankruptcy case — described by the trustee as a “twisted, sad case.” Trustee’s Memorandum, at l. 1 The first motion, filed on April 5, 2007, is the trustee’s request to sell the debtor’s residence at public auction, pursuant to 11 U.S.C. § 363(b) and (f). The second motion, filed on April 26, 2007, is the debtor’s...
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OPINION The appeal before us arises in a case under chapter 15 of the Bankruptcy Code, in which a Japanese bankruptcy proceeding has been recognized as a foreign main proceeding. 1 At the heart of this appeal is the question of whether a foreign bankruptcy trustee must obtain an order from a *247 federal or state court in the United States before exercising control...
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Order Partially Disallowing Claim No. 78-1 This matter was heard on September 13, 2007, on objection by Debtor Timber Lodge Steakhouse, Inc., to claim no. 78-1 filed by Shen Ko Investment Group, LLC, in the amount of $278,110.72, resulting from the Debtor’s rejection of a lease of Wisconsin real estate where the Debtor had operated one of its restaurants. Thomas J. Flynn appeared for the ...
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MEMORANDUM OPINION AND ORDER AFTER TRIAL DENYING RELIEF UNDER INVOLUNTARY CHAPTER 7 PETITION On August 7, 2007, GM Gold & Diamonds LP, A-V Diamonds Inc., and Gold & Gems Holding, Inc. (“Petitioners”), three trade creditors, filed an involuntary chapter 7 petition against A & J Quality Diamonds, Inc. (“Debtor”). The chapter 7 petition lists the three petitioners’ clai...
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MEMORANDUM DECISION DENYING MOTION TO REMAND OR ABSTAIN The Debtor commenced this action in New York State Supreme Court, Ulster County, against the Defendants (collectively, “Grubb & Ellis ” or “G & E ”), alleging damages of $1 million arising from an appraisal that Grubb & Ellis prepared while retained by this Court as a professional of the bankruptcy estate. ...
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MEMORANDUM-OPINION This matter is before the Court on the Objection to Claim of Exemption filed by Creditor Gwendolyn Harris and the Objection to Claim of Exemption filed by Creditor Karen Bozeman. The Court considered the filings of both Creditors, the Response of the Debtor Kevin Boze-man (“Debtor”), the Reply of the Debtor and the comments of counsel for all parties at the hearing held on ...
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ORDER GRANTING PLAINTIFF CITI-CORP LEASING, INC.’S MOTION FOR SUMMARY JUDGMENT THIS MATTER came before the Court on May 23, 2007 upon Citicorp Leasing, Inc.’s (the “Plaintiff’ or “CLI”) Motion for Summary Judgment (the “Motion”). On September 4, 2007, Michael J. DeMeo (the “Debtor”) filed a Memorandum in Opposition to Plaintiffs Motion for Summary Judgment (the “Response”). Plaintiff filed a co...
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ORDER GRANTING LANDLORD’S MOTION FOR STAY RELIEF AND DENYING DEBTOR’S MOTION TO ASSUME LEASE The Court conducted hearings on May 29, 2007 and June 28, 2007 on the Motion for Complete Relief from the Automatic Stay (the “Stay Relief Motion”) (CP# 19) filed by the Whitehurst Family Partnership (“Landlord”). The Landlord seeks stay relief to complete eviction proceedings against the Debt...
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MEMORANDUM The above-styled adversary proceedings come before the Court on the Stipulation and Agreed Judgments (the “Agreed Judgments”) filed in each of the adversary proceedings by Roberta Dunlap, the Chapter 7 Trustee for the three above-styled Chapter 7 cases (the “Trustee”), and First Tennessee Bank National Association (“First Tennessee”). In the Agreed Judgments, the Trustee and First Te...
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MEMORANDUM DECISION AFTER TRIAL [ADV 05-3269] AND ORDER ON TRUSTEE’S OBJECTION TO DEBTOR’S AMENDED CLAIM OF EXEMPTIONS [BKY 02-93495] This Chapter 7 case and adversary proceeding came on before the Court on a joint calendar setting, for trial in ADV OS-3269 and for an evidentiary hearing on an objection to the Debtor’s amended claim of exemptions in BKY 02-93495. The Plaintiff and objecto...
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Decision on Objection by Ford Motor Credit to Confirmation of Chapter 13 Plan CAME ON for hearing on August 16, 2007 the foregoing matter. Ford Motor Credit Company LLC objected to confirmation, on grounds that the plan did not accord to it proper treatment of its secured claim on a motor vehicle under the hanging paragraph to section 1325(a). Background Facts The facts are not ...
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*854 MEMORANDUM OPINION ON TRUSTEE’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S MOTION FOR SUMMARY JUDG MENT 1 Before the court in this adversary proceeding are cross motions for summary judgment filed by the Plaintiff, Andrew J. Maxwell, the chapter 7 trustee in Leo F. Swiontek’s (the “Debtor”) chapter 7 bankruptcy case and the Defendant, Demetra Barounis. The co...
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DECISION & ORDER This decision addresses two issues in a multi-dimensional claim dispute: whether to allow an administrative claim for damages resulting from a post-petition termination of employment; and whether this court should abstain from deciding a claim for damages resulting from allegedly discriminatory employment practices. On February 10, 2004, Young Hee Tato and Sheeha...
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MEMORANDUM OPINION 1 Before the Court is the chapter 7 Trustee’s Motion for Reconsideration of this Court’s Order entered on August 6, 2007, denying the Trustee’s Motion for Entry of an Order Modifying Final Order Approving the Stipulation Authorizing Chapter 7 Trustee to Use Cash Collateral and Agreement for Liquidation of Debtor’s Collateral and Approving Limited Notice (...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Before this Court is an adversary proceeding commenced on July 6, 2006, by Larry W. Wells (“Debtor”) by the filing of a complaint against Educational Credit Management Corporation (“ECMC”), as assignee of New York State Higher Education Services Corporation and/or Sallie Mae, 1 seeking a discharge of student lo...
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MEMORANDUM OPINION THIS CAUSE came on for trial on June 25, 2007 upon the Complaint Objecting to Debtor’s Discharge and to Dischargeability of Debt (C.P. 1), which complaint was filed on February 12, 2007. Counts 1 and 2 contain allegations ostensibly warranting denial of dischargeability of the indebtedness owed by defendant to plaintiff under 11 U.S.C. §§ 523(a)(2) and (a)(6). Count...
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Opinion and Order on Respondent’s Motion for Summary Judgment Marc L. Barrett, has reopened his bankruptcy proceedings and sought to enforce his August 22, 1986 bankruptcy discharge order against his brothers, Dean R. and Bradford H. Barrett, co-trustees of the Harry Bradford Barrett Residuary Trust (the “Family Trust”) and their lawyers. Dean and Bradford Barrett are together referre...
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ORDER DENYING PLAINTIFF’S MOTION FOR ENTRY OF FINAL DEFAULT JUDGMENT DISCHARGING DEBT [DE 8] THIS CAUSE came before the Court on hearing, on October 9, 2007, upon Maria E. Rivas’ (hereafter the “Plaintiff’) Motion For Entry of Final Default Judgement [DE 8]. Plaintiff filed with Juan C. Rivas, the co-debtor, their voluntary chapter 7 petition on March 2, 2004 [DE 1] (Case No. 04-...
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DECISION AND ORDER Before the Court is a motion by the United States to vacate a final judgment, awarding the debtors compensatory damages for travel expenses incurred seeking to remedy a violation of the discharge injunction by the Internal Revenue Service (“IRS”). For the reasons set forth below, the motion will be granted. The debtors filed a voluntary petition under Chapter 7...
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AMENDED JUDGMENT 1 Based upon the Findings of Fact and Conclusions of Law made in the attached order of the Court, Debtor’s proposed development of its golf course property, as described in the Plan filed February 1, 2007, is prohibited by the plain meaning of the language of the restrictive covenants, which appear to run with the title to the golf course property. The claims of E...
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MEMORANDUM OPINION AND ORDER ON CALCULATION OF POST-CONFIRMATION QUARTERLY FEES TO THE UNITED STATES TRUSTEE THIS MATTER is before the Court on the confirmation of the Debtor’s plan in this small business Chapter 11. Docket 51. The United States Trustee (UST) filed a Motion to Dismiss or Convert this case to Chapter 7 because the Debtor was delinquent on payment of quarterly fees owed to ...
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DECISION AND ORDER This cause is before the Court after a Hearing on the Trustee’s Motion for Turnover and Objection to the Debtors’ claim of exemption. In response, the Debtor, Eugene McCall, filed a brief and memorandum objecting to the Motion for Turnover. The Trustee then filed a brief in support of his Motion for Turnover, with the Debtor thereafter filing a reply to the Trustee’...
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MEMORANDUM ON DEBTOR’S OBJECTION TO CLAIM #12 On May 4, 2006, Security Aviation, Inc., and Regional Protective Services, LLC, *721 initiated a state court civil action against Air USA, Inc., and other defendants. The complaint contains several counts, including trespass, intentional interference with chattels, misrepresentation and breach of contract, and seeks damages well in excess of $5 ...
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MEMORANDUM DECISION AND ORDER DENYING MOTION TO DISMISS COMPLAINT Defendant Rosetta Resources Inc. (“Rosetta”) moves pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure (“Federal Rules”), made applicable herein pursuant to Rule 7012 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”), for an order dismissing the complaint filed by Calpine Corporati...
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ORDER GRANTING MOTION TO ALLOW LATE FILED CLAIM AND MOTION TO ALLOW RELIEF FROM STAY THIS CASE came before the Court on June 6, 2007 for a final evidentiary hearing on Steven Sheridan’s Motion for Rehearing on Order Denying Motion to Allow Late Filed Claim and Motion to Allow Relief from Stay (the “Motion”) [DE 3436] and the Order Granting that Motion (the “Order”) [DE 3475] over the o...
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MEMORANDUM OF DECISION ON ORDER TO SHOW CAUSE AND RELATED MOTIONS REGARDING SANCTIONS AGAINST COUNSEL FOR THE DEBTORS I. INTRODUCTION The instant bankruptcy case is attended by a disturbing debtor agenda and miscon *11 duct involving concealment of a substantial material asset, false statements and testimony. And, because it preliminarily appeared to the Court...
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MEMORANDUM AND ORDER ON MOTION TO APPROVE SETTLEMENT AND COMPROMISE The matter before the court presents an unusual scenario. The plaintiff, now known as the Liquidating Agent, see n. 1, supra, filed the instant motion for approval of a Settlement and Compromise (“Settlement”) with Consumer Portfolio Services, Inc. (“CPS”), 3 a stranger to this adversary p...
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MEMORANDUM-DECISION AND ORDER Currently before the court for consideration is confirmation of the second amended chapter 13 plan proposed by Shon and Leslie McLain (“Debtors”). Andrea E. Celli, chapter 13 standing trustee (“Trustee”), and eCast Settlement Corporation (“eCast” or “Creditor”), as agent for Bank of America/FIA Card Services, formerly MBNA, both filed objections to confirmation on ...
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MEMORANDUM OPINION This matter comes before the court on the motion of R.C.M. Industries, Inc. (“R.C.M.”) and Robert C. Marconi, as Trustee of the Robert C. Marconi Declaration of Trust dated June 30, 1992 (the “Marconi Trust”), for Relief from Automatic Stay [EOD # 18]. R.C.M. and the Marconi Trust seek relief from the stay in order to foreclose on their collateral pursuant to 11 U.S.C. ...
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MEMORANDUM OPINION This adversary comes before the Court on the Complaint to Determine Discharge-ability of Debt (“Complaint”) filed by plaintiff Bank of Iberia (“Plaintiff’ or the “Bank”) against Troy and Denise Jeffries (“Defendants” or “Debtors”) 1 . Plaintiff seeks that the debt owed to it by Debtors be deemed nondischargeable under 11 U.S.C. § 523(a)(6) and that Debtor...
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OPINION ON TRUSTEE’S AND EMERALD GATE’S OBJECTION TO SUBROGATION CLAIM *899 [[Image here]] I.Introduction Gregory Grantham and John Saba are two California attorneys who also jointly invest in businesses and real estate. After foreclosure of a California property in which they had an interest, they filed a claim in this bankruptcy. 1 That claim asserts that N...
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MEMORANDUM Presently before me is a motion filed by Central Penn Property Services, Inc. to dismiss this bankruptcy case with a 180 day bar against future filings. Alternatively, Central Penn Property Services seeks relief from the bankruptcy stay as well as relief from the co-debtor stay pursuant to 11 U.S.C. § 1301(c), in order to prosecute an ejectment action against the debtor and her...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Case is before the Court upon Debtor’s Motion to Value Claim Four (4) of Nicholas Financial, Inc. After a hearing held on July 18, 2007, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT On April 3, 2007, Debtor filed a petition under Chapter 13 of the Bankruptcy Abuse Prevention and Consumer Protection A...
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MEMORANDUM DECISION DISMISSING CASE WITH REFILING BAR Before the Court are the motions of the United States Trustee (“UST”) and the Chapter 13 Trustee (“Trustee”) to dismiss the bankruptcy case of Debtor David Maurice Craighead (“Debtor”) with a five-year refiling bar (collectively, “Motions”). The Motions were filed on June 11, 2007. The UST is represented by Shannon L. Moun-ger-Lum, Esq...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon Debtor’s Motion to Value Secured Claim 1. Americredit Financial Services, Inc. (“Am-ericredit”) filed Response to Debtor’s Motion to Value Secured Claim 1. The Court conducted a hearing on the matter on June 13, 2007. Upon the evidence and the arguments of the parties, the Court makes the following Findings of Fact a...
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ORDER GRANTING TRUSTEE’S MOTION TO DENY CONFIRMATION The Chapter 13 Trustee requests that I deny confirmation of the Debtor’s proposed Chapter 13 Plan because the amount she proposes to pay to unsecured creditors is less than the amount her Form 22C shows she should pay. The Debtor responds that the Form 22C does not accurately reflect her situation because her income during the six months be...
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ORDER DENYING PLAINTIFF’S SECOND MOTION FOR SUMMARY JUDGMENT Plaintiff, EBCO Construction Group, LLC (hereafter referred to as “EBCO”), filed a Complaint to Determine Discharge-ability of Debt and Objection to Discharge on January 16, 2006. Pro se Defendant Jerry Garretson (hereafter referred to as “DPS” or “Drywall Painting Specialists, Inc.” or “Garretson”) fil...
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ENTRY OF DEFAULT AND NOTICE OF OPPORTUNITY TO RESPOND TO MOTION FOR DEFAULT JUDGMENT Now before the Court is Plaintiffs Gary L. Price and Pamela J. Price’s (the “Debtors”) Amended Motion for Entry of a Default Judgment and Motion for Hearing to Determine Damages 1 (“Motion for Entry of Default”) filed by Joel Hargis (“Hargis”), Debtors’ attorney, on July 13, 2007...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTION This Chapter 7 case came on before the Court for hearing on the Trustee’s objection to the Debtor’s claim of exemption in certain rights under a private policy of disability insurance, and in certain funds on bank deposit. Trustee Patti J. Sullivan appeared in person and by her attorney, Chad A. Kelsch. The Debtor appeared by h...
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MEMORANDUM DECISION The Federal Communications Commission (“FCC”) and Telephone & Data Systems, Inc. (“TDS”) are the two principal secured (more precisely, under-secured) *906 creditors in this chapter 11 case. The FCC has objected to all three claims TDS has filed. TDS has moved for partial summary judgment on the FCC’s objections to Claim 14. TDS made the th...
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*354 MEMORANDUM DECISION The matter before the Court is Ford Motor Credit Company, LLC’s (“Ford Motor Credit”) objection to confirmation of the Debtor’s proposed chapter 13 plan. Ford Motor Credit objects to confirmation on the basis that the Debtor’s proposed plan seeks to improperly cram down Ford Motor Credit’s secured claim in violation of 11 U.S.C. § 1325(a)(*), otherwise re...
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This is an appeal of two orders of the bankruptcy court which arose from an order granting relief from the automatic stay to creditor Regency Financial Corporation (“Regency”). The order granting relief has not been appealed. The debtor filed an adversary proceeding against Regency alleging violation of the automatic stay. She appeals a text order filed October 6, 2006, memorializing an oral ruli...
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ORDER Before the Court is a Motion for Relief From Stay, or in the Alternative, Motion to Dismiss filed by Arkansas Best Federal Credit Union [Arkansas Best] on June 19, 2007, in the above case. Arkansas Best requests relief from the automatic stay to exercise an alleged right of setoff regarding two accounts the debtors have with Arkansas Best. The Court held a hearing on August 2, 2007....
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OPINION 1 Before the Court is the Motion of Integrated Water Resources, Inc. (“IWR”) for summary judgment in its complaint against Shaw Environmental Inc. (“Shaw”) seeking a declaratory judgment that Shaw has no claim against IWR. 2 For the reasons set forth below, the Court will grant the motion. I. BACKGROUND In April 2001, IWR was a subcontra...
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MEMORANDUM OPINION The Court has before it the motion of the Chapter 11 Debtor, Zenus is Jewelry, Inc., seeking permission to pay certain prepetition creditors. Ocean National Bank (“Ocean”), a secured creditor, has objected to the Debtor’s motion. The Court held an evidentiary hearing on October 18, 2007, and, realizing time is an important factor in this reorganization, issues this ...
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MEMORANDUM OPINION This chapter 11 bankruptcy case is before the court for ruling following a combined hearing on the adequacy of the debt- or’s disclosure statement and confirmation of its plan. For the reasons that follow, confirmation of the plan will be denied. 1. Background Debtor South Beach Securities, Inc. is a corporate shell with no business operation or income. It...
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MEMORANDUM-DECISION AND ORDER Before the court is the objection to the Chapter 13 Plan of Shenite Green (“Debt- or”) filed by Andrea E. Celli, Esq., Chapter 13 Standing Trustee (“Trustee”). The court has jurisdiction over this core matter pursuant to 28 U.S.C. §§ 157(a), (b)(1), (b)(2)(L), and 1334. 1 Facts The parties have stipulated to the relevant facts. 2 ...
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ORDER GRANTING MOTION TO DISMISS THIS MATTER is before the Court on the Motion to Dismiss filed by Don Rein-hard (the “Motion,” Doc. 9). The parties have agreed to treat Mr. Reinhard’s Motion as a motion for partial summary judgment as to Count I of the complaint, which alleges that the Debtor is limited to exempting $125,000 in his homestead real property pursuant to 11 U.S.C. § 522(p) (2006...
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ORDER DENYING MOTION TO CONVERT CHAPTER 7 CASE UNDER SECTION 706 THIS MATTER is before the Court on the Motion to Convert Chapter 7 Case to Chapter 13 Case Under Section 706 (“Motion to Convert”) filed by the Debtors on October 27, 2006 (Docket # 37), by and through their attorneys, Bill Gordon and Associates (Steve Mazer). The Court held a final hearing on the Motion to Convert on October 23...
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MEMORANDUM OF DECISION ON MOTIONS FOR TURNOVER AND RELIEF FROM AUTOMATIC STAY The above-captioned matters are the competing requests of the Debtor and a creditor, LoRicco Tower Condominium Association (hereafter, “LoRicco”), for control of an office condominium unit. LoRic-co seeks relief from the automatic stay to obtain possession of that unit incident to its taking of title to the same under...
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OPINION The issue before the Court is whether a non-dischargeable judgment should be entered against the Debtor/Defendant, Lester Westfall, and in favor of the Plaintiff, Trustees of the Operating Engineers Local # 965 Health Benefit Plan (“Plan”) for reimbursement of medical benefits paid on behalf of the Debtor’s ex-wife by the Plan. After considering the testimony of the parties and th...
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MEMORANDUM DECISION Linda Bennett voluntarily converted her chapter 7 case (filed last July) to chapter 13 on October 26, 2006. A plan was confirmed on January 8, 2007. On January 30, 2007, Bennett filed an adversary proceeding against her ex-husband, Thor Sveinsvoll. Bennett’s complaint seeks to enforce a marital settlement agreement (“MSA”) between her and Sveinsvoll that they signed on...
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MEMORANDUM DECISION On March 8, 2007, William J. Rameker, chapter 7 trustee, reopened this chapter 7 case which had been closed in 2001, to administer a single asset. The trustee argues that a lawsuit by Mr. Jaynes, the debtor, against alleged embezzlers was not disclosed on the debtor’s bankruptcy schedules. He has reached an agreement with the defendants and proposes to settle the lawsu...
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Debtors Robert Wayne Hicks, Sr., and Janice Virginia Hicks appeal from the Judgment of the Bankruptcy Court 1 granting summary judgment in favor of each of the Defendants, the Missouri Department of Revenue, the Arizona Department of Revenue, and the Internal Revenue Service, and finding that each of the Defendants has claims against the Debtors for unpaid taxes, that any liens for s...
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OPINION Appellant Colleen M. Olson (the “Trustee”) appeals the bankruptcy court’s order disapproving the settlement agreement entered into by the Trustee and Defendants David Allen Anderson and David A. *868 Anderson (the “Defendants”)- For the reasons that follow, the panel concludes that although the bankruptcy court abused its discretion by applying an erroneous legal stan...
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MEMORANDUM OF DECISION The means test of 11 U.S.C. § 707(b) stands out as among the foremost changes to bankruptcy law enacted by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). At its core, the means test seeks to determine whether a debtor can repay a portion of his or her debt. If so, then the debtor will be channeled into Chapter 13 and will be required...
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*440 RULING ON DEFENDANT KORT’S MOTION FOR SUMMARY JUDGMENT I. Rockville Orthopedic Associates, P.C. d/b/a/ Connecticut Orthopaedic & Sports Medicine Center (“the debtor”), on September 29, 2006, filed a voluntary Chapter 11 petition (“the petition”) in this court. The petition described the debtor as a “small business debtor” pursuant to Bankruptcy Code § 101(51D) with ...
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ORDER DENYING THE TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF HOMESTEAD EXEMPTION The facts concerning this contested matter are undisputed and the issue remaining is purely a question of Oklahoma law. The debtor had a homestead, and six days prior to filing his bankruptcy petition he entered into a contract to sell it. The debtor remained in possession before and after the petition...
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MEMORANDUM DECISION Trial was held in this matter on October 3, 2007, on the Complaint for Discharge Violation, Lien Determination and Damages filed by Travis P. Anderson and Bonnie M. Anderson (Debtors) against Star Rentals, Inc., dba Star Rentals & Sales (Star Rentals). Based on the evidence, pleadings and arguments presented, the Court’s findings of fact and conclusions of l...
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MEMORANDUM DECISION PARTIALLY GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING CROSS-MOTION American International Group, Inc. and New Hampshire Insurance Company (the “Defendants”) have moved for partial summary judgment with respect to Count II of the amended complaint. That count seeks recovery in the total amount of $1,699,357 under the business interruption provisions...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Before the Court are two motions related to the December 28, 2006 complaint (“Complaint”) filed by Christine Falls of New York, Inc. (“CFC”) and Trafalgar Power, Inc. (“TPI”) (collectively referred to as “Plaintiffs”) against Algonquin Power Corp., Inc. (“Power”), Algonquin Power U.S. Holdings, Inc. (“Power U.S.”), Algonq...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Robert Charles Ross (the “Debtor”) to reconsider the Court’s Memorandum Opinion and Order dated September 13, 2007, which sustained, in part, an objection by Marilyn O. Marshall, the Chapter 13 Standing Trustee (the “Trustee”), to confirmation of the Chapter 13 plan proposed by the Debtor. For the reasons set forth herein,...
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OPINION This matter is before the Court on the objection of Americredit Financial Services, Inc., (AFS) to confirmation of the Amended Chapter 13 Plan proposed by the Debtor, Darla Lilly (DEBTOR). The issue is whether the lien retention provision added by BAPCPA to Section 1325(a)(5)(B)(i) prevents a Chapter 13 debtor who is not entitled to a discharge from modifying the interest rate on a se...
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DECISION & ORDER The chapter 7 trustee objects to the debtors’ claim of a homestead exemption. This dispute involves two issues: whether the debtors may exempt their homestead despite a pre-existing intent to sell the property; and whether the debtors may enhance the value of their homestead exemption by reason of their use of nonexempt assets to reduce balances due on outstanding mor...
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MEMORANDUM OPINION The above-styled case was commenced on August 23, 2007 by the filing of an involuntary chapter 7 petition under section 303 of the Bankruptcy Code (the “Code”). 1 The court has core jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(A). This memorandum opinion embodies the court’s findings of fact and conclusions of law. Fed. R. BanicrP. 7052 and 90...
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MEMORANDUM AND ORDER The Debtor has proposed a plan that (a) discriminates in favor of nondischargeable student loan debt and against other nonp-riority unsecured debt and (b) excludes certain cure-and-maintain payments on long-term unsecured debt from the Chapter 13 trustee’s statutory compensation (“Plan”). The trustee objects to both provisions of the Plan (“Objection”). For the reasons an...
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ORDER This matter comes before the Court upon the Chapter 7 Trustee’s Notice and Application for Sale of Property Free and Clear of Liens and Settlement of Claims in Connection Therewith (“Application”). Alan Grayson, the AMG Trust, and General Holding, Inc. filed an objection to the Application, with which Newton Family LLC, WCN/GAN Partners Ltd., Robert Sabelhaus, and Melanie Sabelhaus ...
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MEMORANDUM OPINION AND ORDER Before the Court is the First Amended Motion to Lift Automatic Stay by Honda Financial Services (“Honda”) pursuant to 11 U.S.C. § 362(d)(1) and (d)(2) (the “Amended Motion”). The Court has jurisdiction over the Amended Motion and the parties pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(G). For the reasons set forth below, the Amended Motion is denied, as th...
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JUDGMENT Based upon the Findings of Fact and Conclusions of Law set forth in the attached Order of the Court, the chapter 13 trustee’s objection to confirmation of Debt- or’s amended chapter 13 plan is sustained in part. Debtor shall remit her husband’s bonus pursuant to the terms of the attached Order. Debtor’s amended plan shall be confirmed by separate order to be presented by the Trustee. ...
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ORDER AND OPINION DENYING CONFIRMATION OF PLAN THIS MATTER came on before the Court on October 10, 2007, after due and proper notice, before the undersigned Bankruptcy Judge upon Branch Banking & Trust’s Objection to Confirmation of Plan. Jewel A. Farlow appeared on behalf of Branch Banking & Trust (“BB & T”), Wendell Wes Schollander, III appeared on behalf of Antionette Sa...
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*367 ORDER DENYING PLAINTIFFS MOTION FOR NEW TRIAL OR, IN THE ALTERNATIVE, MOTION TO AMEND OR ALTER JUDGMENT THIS CASE came before the Court for hearing to consider the Motion for New Trial or, in the Alternative, Motion to Amend or Alter Judgment filed by the Plaintiff, Concetta D’Angelo. The Plaintiff, Concetta D’Angelo, commenced this action by filing a Complaint to Determine Creditor Co...
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*383 ORDER ON MOTION TO DETERMINE STATUS OF CLAIM OF POLK COUNTY TAX COLLECTOR THIS CASE came before the Court for hearing to consider the Motion to Determine Status of Claim of Polk County Tax Collector. The Motion was filed by the Debtor, Joseph F. Lohr. The issue in this case is whether certain debts owed to the Polk County Tax Collector (Tax Collector) were discharged in the Debtor’s Ch...
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DECISION AND ORDER This cause comes before the Court after a Hearing on the Motion of the United States Trustee to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(1) and § 707(b)(3). At the conclusion of the Hearing, the Court took the matter under advisement so as to afford time to thoroughly consider the issues raised by the Parties. The Court has now had this opportunity, and finds, for the re...
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OPINION ON MOTIONS TO DISMISS AMENDED COMPLAINT This is a preference case in which the Chapter 7 Trustee seeks to avoid and recover a total of $9.4 million. Six of the defendants filed motions to dismiss the Plaintiff-Trustee’s amended complaint. The Trustee opposes the motions, except as to transfers alleged in the amended complaint to have been made by an entity referred to as “Canada.”...
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OPINION The CIT Group/Consumer Finance, Inc. (“CIT”) and Select Portfolio Servicing, Inc. (“Select Portfolio”) 1 appeal the bankruptcy court’s judgment entered July 13, 2006 (the “July 13th Order”), granting summary judgment for Beverly Burden, the chapter 13 trustee (the “Trustee”). The bankruptcy court’s decision is based on its determination that CIT’s mortgage did not provi...
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MEMORANDUM OPINION AND ORDER Before the Court is a Motion for Judgment on the Pleadings (the “Motion”) brought by defendants Vista Controls, Inc. and Curtiss-Wright Controls, Inc. The Court has jurisdiction to decide the Motion pursuant to 28 U.S.C. §§ 1334 and 157. To decide the Motion, the Court must answer the following questions under North Carolina law: (i) can a “non-outsider” ...
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OPINION In this appeal, the Appellant, Citifinan-cial Mortgage Co., Inc., fik/a Associates Home Equity Service, Inc. as successor in interest to MG Investments, Inc. (“Citifi-nancial”), appeals the bankruptcy court’s judgment voiding Citifinancial’s security interests in real estate owned by the Debtors, William and Tina Cocanougher. The bankruptcy court voided the mortgages based on its ...
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MEMORANDUM This matter is before the court on confirmation of Gregory Riley Mitchell and Suzanne Savage Mitchell’s (hereinafter “debtors”) proposed chapter 13 plan. Family Advantage Federal Credit Union (hereinafter “FAFCU”) filed an objection to the debtors’ proposed cramdown of their “910 car” claim pursuant to 11 U.S.C. § 1325(a)’s hanging paragraph 1 and 11 U.S.C. § 506...
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OPINION 1 Before the Court is the question of whether funds collected by Amp’d Mobile, *481 Inc. (“Amp’d” or the “Debtor”) from its customers for insurance on cellular equipment are held in trust for the benefit of Asurion Insurance Services, Inc. (“Asu-rion”) or are property of the Debtor’s estate within the meaning of section 541 of the Bankruptcy Code (the “...
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MEMORANDUM OPINION I. INTRODUCTION On October 4, 2007, the Court held a hearing to consider the Ex Parte Motion of United States Trustee for Order Authorizing Rule 2004 Examination of Debtor and Production of Documents (Doc. No. 10) (the “Motion”), the Objection to Motion for 2004 Examination filed by the Debtor (Doc. No. 11), and the Reply in Support of the Motion of United States Trustee ...
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ORDER DENYING MOTION TO DISQUALIFY AS MOOT, DENYING REQUEST TO STAY PROCEEDINGS, PROHIBITING CORPORATE CREDITOR FROM APPEARING EXCEPT THROUGH AUTHORIZED COUNSEL, DIRECTING CLERK TO REFUSE UNAUTHORIZED PLEADINGS, AND AUTHORIZING TRUSTEE TO SEEK SANCTIONS THIS CASE is before me on an emergency motion (the “Motion”) to disqualify and request to stay proceedings [DE 276] filed by Mary...
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ORDER GRANTING TRUSTEE’S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART WILLIAM KLEIN’S CROSS-MOTION FOR SUMMARY JUDGMENT INTRODUCTION This matter came before the Court on the Trustee’s Motion for Partial Summary Judgment on Trustee’s Objection to Claim No. 1 Filed by Bill Klein (CP # 36), and William Klein’s Response and Cross-Motion for Summary Judgmen...
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MEMORANDUM AND ORDER DENYING U.S. TRUSTEE’S MOTION TO DISMISS The United States Trustee has moved to dismiss this petition alleging that it constitutes abuse as provided in 11 U.S.C. § 707(b)(2). This statute contains the “means test” applied by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. It fundamentally requires debtors to calculate their income and deduct certain e...
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OPINION Before the Court is the objection to. confirmation of the proposed Chapter 13 plan of the Debtor, Latarshe Brown (DEBTOR), filed by AmeriCredit Financial Services, Inc. (AMERICREDIT), as well as AMERICREDIT’S motion for relief from the automatic stay. BACKGROUND The DEBTOR filed her Chapter 13 petition in this case on January 25, 2007. AMERICREDIT is the holder of a perfected pu...
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MEMORANDUM-OPINION This matter is before the Court on the Objection to Claim of Commonwealth Credit Union (“Credit Union”) by the Debtor Kimberly Denise Shemwell (“Debt- or”). The Court considered the submissions of the parties and the comments of counsel at the hearing held on the matter. For the following reasons, the Court OVERRULES the Debtor’s objection. *167 FACT...
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MEMORANDUM DECISION GRANTING IN PART AND DENYING IN PART THE MOTION OF CERTAIN DEFENDANTS TO DISMISS THE AMENDED COMPLAINT Before the Court is the motion of certain of the above-captioned Defendants, Kent-Rush Realty Corp. (“Kent-Rush Realty”), K-R Residence Corp. (“K-R Residence”), D.J.R. Construction LLC (“DJR Construction”), and R & D Development, LLC (“R & D Development”) (...
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MEMORANDUM OPINION This matter comes before the court on the motion filed by the defendant, Andrew J. Maxwell (“Maxwell”), personally and in his capacity as trustee of the Estates of marchFIRST, Inc., et al. (“Debtors”), to dismiss the adversary complaint filed by the plaintiff, CIT Communications Finance Corporations (“CIT”), pursuant to Federal Rule of Civil Procedure 12(b)(6), made applicabl...
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DECISION AND ORDER Plaintiffs are creditors of the debtor/defendant, Matthew Schmucker. Their claim against him arises out of a tragic accident that took place during the early hours of January 1, 2004. The defendant was traveling alone in a horse and buggy and failed to stop at an intersection. As a result, the horse and buggy collided with the vehicle in which the plaintiff, Monica ...
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DECISION SUSTAINING CHAPTER 13 TRUSTEE’S OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN This matter is before the court on the Chapter 13 Trustee’s Objection to Confirmation [Doc. 21] and Memorandum Brief in Support [Doc. 28]; the Debtor’s Memorandum Brief in Opposition [Doc. 32]; and the Trustee’s Reply Brief [Doc. 33]. The court also considers the Joint Stipulation of Facts [Doc. 31] filed by t...
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MEMORANDUM OF DECISION Debtor Joseph Toppi, Jr. claims a Maine residence exemption in his right to receive $50,000 from his former spouse pursuant to an equitable property division that attended his divorce. The Chapter 13 trustee objects. Because Toppi parted with all his interest in the marital residence before bankruptcy and because he retains nothing that qualifies for exempt...
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DECISION AND ORDER DENYING THE REQUEST OF DUFF & PHELPS SECURITIES LLC FOR REIMBURSEMENT OF ATTORNEY FEES Duff & Phelps Securities LLC (“DPS”) served as a court authorized financial ad-visor to the Debtors during the Chapter 11 phase of the above-captioned bankruptcy cases. Upon completion of their services, DPS sought and were granted final compensation of $150,000 for their financia...
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MEMORANDUM OPINION DENYING MOTION TO APPOINT HEALTHCARE OMBUDSMAN THIS MATTER came before the Court for hearing on October 26, 2007 upon the Motion to Appoint Patient Care Ombudsman [D.E. 20] filed by the United States Trustee and the Debtor’s response thereto [D.E. 21]. At the hearing Alternate Family Care, the debtor, (hereafter “AFC”) was represented by Counsel and Dr. Ronald Simon the s...
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MEMORANDUM OF DECISION ON MOTION FOR RELIEF This matter came before the Court on Wells Fargo Bank, National Association’s (“Movant”) Motion for Relief from Stay and for Leave to Foreclose (Docket # 23). Wells Fargo filed the Motion in its capacity as Trustee for Morgan Stanley Capital I, Inc. Trust 2004-OP1 Mortgage Pass-Through Certificates, Series 2004-OP1. The Movant sought relief from the a...
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ORDER FINDING VIOLATION OF THE DISCHARGE ORDER THIS MATTER came before the Court for hearing on June 7, 2007 and July 12, 2007, upon the Motion For Contempt, Motion For Sanctions Pursuant to 11 USC 52^a Discharge Injunction Violation Against Jay Hoover and Michael Fein-stein (D.E.ll) Filed by Debtor Kenneth Hawkins and the responses thereto (D.E.17). On June 7, 2007 the Cou...
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MEMORANDUM OPINION This opinion is regarding the motion of OHC Liquidation Trust (“Plaintiff’ or *63 “Trust”) for determination of Plaintiffs right to a jury trial (Doc. # 198) in this adversary proceeding. Credit Suisse (f/k/a Credit Suisse First Boston, a Swiss banking corporation), Credit Suisse Securities (USA), LLC,(f/k/a Credit Suisse First Boston LLC), and Credit Suiss...
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ORDER DENYING MOTIONS FILED BY THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF ENRON CORP AND BY AMANDA K. MARTIN SEEKING RECONSIDERATION OF OPINION CONCERNING (I) MOTION OF OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR SUMMARY JUDGMENT ON ITS CLAIM TO AVOID AND RECOVER TRANSFER TO DEFENDANT AMANDA K. MARTIN AND ON DEFENDANT’S COUNTERCLAIMS/THIRD-PARTY CLAIMS FOR BREACH OF CONTRACT AND FRAUD; (I...
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MEMORANDUM OPINION Debtor Debra Wolfe has filed what she characterizes as an objection to the distribution to pre-petition creditor Patricia Miller the chapter 7 trustee has proposed. Debtor has mischaracterized her objection. She in reality objects to the proof of claim filed by Miller, obviously hoping that the residue of her bankruptcy estate ultimately will be distributed to her inste...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon Debt- or’s Motion to Require Wells Fargo Home Mortgage, Inc., to Comply with Plan, to Hold it in Contempt for Discharge Violations, and to Award Costs and Fees for Vexatiously Multiplying Litigation. After an evidentiary hearing held on August 16, 2007, the Court makes the following Findings of Fact and Conclusions of ...
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MEMORANDUM The issue in these consolidated Chapter 13 cases is whether CitiFinancial and GMAC hold purchase money security interests to which 11 U.S.C. § 506 “shall not apply” under the hanging sentence at the end of 11 U.S.C. § 1325(a). Because the conditions in the hanging sentence are collateral — specific and these creditors do not claim purchase money security interests in some items...
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JUDGMENT A Memorandum of Opinion and Order having been rendered by the Court in this matter, IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Trustee’s motion to dismiss pursuant to 11 U.S.C. §§ 707(b)(3) is granted and the *541 Debtor’s case is hereby dismissed. The Debtor’s objection is hereby overruled. Each party is to bear its respective costs. IT IS SO ORDERED...
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MEMORANDUM OF DECISION The trustee has given notice of his intention to abandon all of the property placed in trust by the debtor for the benefit of his three children. The conservatorships of two of the children and the estate of the debtor’s late wife have objected. Their objections are overruled. Background The tension behind the current dispute is easy to comprehend....
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MEMORANDUM OPINION This chapter 13 bankruptcy is before the court for a ruling on confirmation of the amended plan proposed by debtors Kenneth and Lisa Burmeister. Standing Chapter 13 Trustee Glenn Stearns objects to confirmation. He argues that the Burmeisters are not devoting all of their projected disposable income to the plan because their calculation of disposable income deducts mortgage...
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*548 MEMORANDUM OF OPINION REGARDING ORDER TO SHOW CAUSE REGARDING MULTIPLE INVOLUNTARY BANKRUPTCY PETITIONS An unusual series of involuntary and voluntary bankruptcy petitions were recently filed in this court (see attached chart). They raise the issue of whether the filing of a facially correct involuntary bankruptcy petition by a purportedly unsecured creditor is in bad faith when the purp...
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MEMORANDUM OF DECISION After due notice the Court held a hearing on confirmation of Debtors’ Chapter 12 Plan in the above-captioned jointly administered cases, after due notice, at Missoula on August 30, 2007, along with a hearing on the motion for adequate protection (Docket No. 279) filed by secured creditor Paul E. Harper Revocable Trust (“Harper Trust”), which also filed objections to...
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MEMORANDUM OPINION AND ORDER DENYING BRUNSWICK HOMES, LLC’S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION Before this court is the motion for summary judgment [doc. no. 39] (“MSJ”) of Brunswick Homes, LLC (“Brunswick”) in the above-referenced removed action (an action that was originally filed prepetition in state court) in which Jeffrey H. Mims (“Trustee”) now stands in the sh...
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ORDER This matter comes before this Court for a damages hearing. The 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)(A), (K), and (0). Pursuant to Fed.R.Civ.P. 52, made applicable to this proceeding by Fed. R. Bankr.P. 7052, the Court makes the following Findings of Fact and Conclusions of Law. 1 ...
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MEMORANDUM DECISION This matter comes before the Court upon the motion filed by Charles A. Stanz-iale, Jr., Chapter 7 Trustee (“Trustee”) for Allserve Systems Corp. (“Debtor”), seeking leave to file a Third Amended Complaint (“Amended Complaint”) in the above-captioned proceeding. The original motion sought, inter alia, to add additional claims against existing defendants for t...
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MEMORANDUM OPINION This matter comes before the court on the motion of Diamond Quest Realty, Inc. Diamond Quest seeks modification of the automatic stay in order to proceed in state court against Diana and Dale Kasco. For the reasons stated below, the motion is denied. BACKGROUND The Kascos own the real property at 77 Winslow Street in Park Forest, Illinois. They failed to pay t...
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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 Conclusions of Law are considered Findings of Fact, ...
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MEMORANDUM OPINION This matter is before the court on the objection, originally filed by the debtor when it was a debtor in possession, to Claim No. 12 filed by Potomac Valley Brick and Supply Company (“Potomac Valley”) in the amount of $19,828. The claim is for goods sold to the debtor and includes, in addition to principal and interest, $4,639.56 in attorney’s fees. The objection was so...
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MEMORANDUM OPINION THIS CASE was before the court on the plaintiffs’ motions for summary judgment as to Count I of the complaint, and motion for default judgment as to the remaining counts of the complaint. Count I is asserted against all defendants and seeks to quiet title to real property in Washington, D.C. The remaining counts of the complaint, which seek relief only against the d...
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SCHERMER, FEDERMAN and MAHONEY, Bankruptcy Judges. Debtors Bobby Ernest Finch and Donna Lynn Finch appeal from the Order of the Bankruptcy Court 1 denying their Motion to Reopen their Chapter 13 Case and denying their Applications to Proceed without Prepayment of Fees. For the reasons that follow, the Order is AFFIRMED. FACTUAL BACKGROUND The Debtors filed their Chapter 13 bankruptcy case...
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*476 MEMORANDUM DECISION ON JOINT MOTION FOR PARTIAL SUMMARY JUDGMENT WITH RESPECT TO CLAIM NO. 6210 (11.25% SENIOR SECURED NOTES) This matter is before the court on the joint motion for partial summary judgment on the proper amount of a claim filed on behalf of the holders of the Debtors’ 11.25% Senior Secured Notes (the “2009 Notes”). STATEMENT OF FACTS 1 ...
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MEMORANDUM OPINION This matter comes before the court on the complaint of plaintiff Shelley Norton (“Norton”) objecting to the discharge of debtor Gary Cole (“Cole”) pursuant to Bankruptcy Code Sections 727(a)(2)(A), 727(a)(3), 727(a)(4), and 727(a)(5), and objecting to the dischargeability of a debt owed by Cole to Norton under Sections 523(a)(2)(A), 523(a)(4), 523(a)(6). 1 Fo...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE MOTION FOR SUMMARY JUDGMENT This matter came before the Court on the Motion for Summary Judgment filed by Educational Credit Management Corporation (ECMC) and the Plaintiffs Response to ECMC’s Motion for Summary Judgment and Brief in Support of ECMC’s Motion for Summary Judgment filed by the Debtor, Darius L. Wynn. After considering ECMC’s mo...
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ORDER ON MOTION FOR RELIEF FROM STAY Debtor filed a timely statement of intention to reaffirm the debt secured by her car as required under 11 U.S.C. *860 § 521(a)(2)(A). 1 Secured creditor has moved for relief from stay on the ground that Debtor has failed to timely perform such intention as required under subsection 521(a)(2)(B). It is undisputed that the reaffir...
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MEMORANDUM OPINION I.INTRODUCTION On November 15, 2007, the Court held a hearing to consider the Objection to Motion to Dismiss (Doc. No. 19) (the “Objection”) filed by Laura Perrotta (the “Debt- or”) with respect to the Motion of United States Trustee for Order Dismissing Case Under 11 U.S.C. § 707(b)(2) or 11 U.S.C. § 707(b)(3) (Doc. No. 15) (the “Motion”). After consideration of the plea...
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MEMORANDUM OPINION I. INTRODUCTION The Court has before it the Debtor’s Objection to Amount of Secured Arrearage and Motion to Determine Amount of Allowed Secured Arrearage of Countrywide Home Loans, Inc. under 11 U.S.C. *441 § 506(b) and 1322(e) (Doc. No. 26) (the “Objection”) and the response thereto filed by Countrywide Home Loans, Inc. as servicing agent for the ...
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MEMORANDUM This matter was presented to the Court on Confirmation of Debtor’s Chapter 12 Plan (Fil.# 13), and an Objection to Confirmation of Plan filed by the United States of America/Internal Revenue Service (Fil.# 19). A Stipulation of Facts was submitted by the parties (Fil.# 29). James R. Nisley appeared for Debtor, and Henry N. Carriger appeared for the United States/Internal Revenue Se...
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MEMORANDUM OF DECISION This matter is before the Court to consider confirmation of the Chapter 13 plans proposed by the Debtors, Judy A. Oliveira and Jana L. Redic, in their respective Chapter 13 cases. A single, common impediment to confirmation was alleged by Green Tree Servicing, L.L.C. (“Green Tree”) in each case, 1 namely, whether a debt secured only by a perfected security interest in...
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OPINION In this two and one-half year-old Chapter 13 case, John and Joyce Plummer (“Debtors”) seek authorization to amend their Schedule F to add previously unscheduled pre-petition 1 creditors and to extend the claims bar date in order to give the added creditors the opportunity to file claims so that their debts to the added creditors will be discharged upon completion of Debtors’ Chapter 1...
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MEMORANDUM 1 On June 5, 2002, several creditors of Student Finance Corporation (“SFC” or the “Debtor”) filed an involuntary chapter 7 bankruptcy petition. On November 4, 2002, the Debtor consented to the entry of an order for relief under chapter 7 (the “Order for Chapter 7 Relief’) and converted its case to a case under chapter 11 of the Bankruptcy Code. On September 29, 2003, Charles A. Sta...
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MEMORANDUM OPINION 1 The matter before the Court is the Motion of Novell, Inc. for Relief from the Automatic Stay Pursuant to Section 362(d) of the Bankruptcy Code to Proceed with a District Court Action to (I) Apportion Revenue from SCOSource Licenses and (II) Determine SCO’s Authority to Enter into SCOSource Licenses, Etc. (the “Motion”) [D.I. 89]. The Motion matches the ...
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ORDER ON MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION THIS CASE came before the Court for hearing to consider the Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by the Defendant, Florida Elks Children’s Therapy Services, Inc. *674 The Debtor, Linda Dawn Rex, commenced this adversary proceeding by filing a Complaint to Determine Dischargeability of Debt. The deb...
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OPINION 1 Introduction Timothy J. Seivers (“Debtor” or “Mr. Seivers”) filed a voluntary Petition under Chapter 11 of the Bankruptcy Code on March 7, 2005. The Department of the Treasury, Internal Revenue Service (“IRS”) received a Notice of Chapter 11 Bankruptcy Case, Meeting of Creditors & Deadlines (“Notice”) entered on the docket on June 2, 2005. The ...
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MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Quadrangle Enterprise, Inc. (“Quadrangle” or “Plaintiff’), filed a Complaint to Determine Dischargeability under 11 U.S.C. § 523(a)(6) against Defendant Kenneth Harper (the “Debtor”) on March 23, 2007. The Debtor filed an Answer to Comp...
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MEMORANDUM REGARDING SUBSTANTIVE CONSOLIDATION William Barstow, the chapter 7 trustee in this bankruptcy proceeding, has moved for substantive consolidation of a number of corporations and LLCs formerly owned by the debtor, Mark Avery. These entities include: Avery & Associates, LLC, Regional Phone Solutions, LLC, Regional Paramedic Services, LLC, Security Aviation, Inc., High Security Av...
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ORDER OVERRULING OBJECTION TO EXEMPTIONS AND DENYING REQUEST FOR TURNOVER This matter was heard on October 30, 2007, on the trustee’s objection to certain of the debtor’s claimed exemptions, and on the trustee’s request for a turnover order pertaining to those assets. Gene W. Doel-ing appeared for the trustee, and Logan M. Moore appeared for the debtor. Having heard oral arguments and considere...
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*184 MEMORANDUM OPINION AND JUDGMENT ORDER REGARDING (#55) This Memorandum Opinion and Judgment Order constitutes the Court’s findings of fact and conclusions of law regarding the Motion for Authority to Disburse Funds filed on behalf of the Chapter 13 Trustee (“Trustee”) and the Response filed on behalf of JP Morgan Chase Bank, NA (“Creditor”). The issue is whether funds paid by Christian ...
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MEMORANDUM Hearing was held in Omaha, Nebraska, on November 26, 2007, on Debtors’ Amended Chapter 13 Plan (Fil.# 13), and the Objection to Confirmation filed by the Chapter 13 Trustee (Fil.# 23). Samuel J. Turco, Jr. appeared for Debtors, and Tom Kenny appeared on behalf of the Chapter 13 Trustee. This memorandum contains findings of fact and conclusions of law required by Federal Rule of Ban...
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OPINION This Chapter 13 case is before the Court on the Chapter 13 Trustee’s (Trustee) Motion to Dismiss the Case Due to Debtor being Deceased and the Trustee’s Objection to the Amended Plan filed on behalf of the deceased Debtor. This case was consolidated for hearing purposes only with In re Bevelot, Case No. 05-36051, 1 and the parties were granted time to fil...
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MEMORANDUM OF OPINION AND ORDER Before the Court is Defendant Stanley L. Josselson’s Motion to Dismiss Complaint with Prejudice (“Motion”). The Trustee opposes the Motion. After considering the parties’ respective briefs and conducting oral arguments on the Motion, the Court rules as follows: * The Debtor filed a voluntary Chapter 7 petition on January 24, 2005. The Trustee ...
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ORDER THIS MATTER comes before the Court on the Motion by Debtors to Convert Case Under Chapter 7 to Case Under Chapter 13. The Court, being advised in the premises, hereby FINDS and CONCLUDES: The present motion raises the question of whether the Debtors may seek to convert their case to another chapter of the Bankruptcy Code for a second time. This case was originally commenced as ...
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GAF Holdings, LLC (“GAF”) appeals the bankruptcy court order dismissing with prejudice its complaint against Philip Rinaldi (“Rinaldi”); Stanley Riemann (“Riemann”); Robert Terry (“Terry”); Pegasus Partners II, L.P.; Pegasus Investors II, L.P.; Pegasus Capital Partners, L.P. (the three Pegasus entities are referred to herein as “Pegasus”); and J.P. Morgan Trust Company, National Association in ...
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ORDER DENYING DEBTOR’S MOTION TO AMEND SCHEDULES By motion, Avis M. Foreman (“Debtor”) seeks to amend the schedules in her Chapter 13 case to reflect her interest in a wrongful death claim that arose post-confirmation. Because the tort claim arose post-confirmation it is not property of the estate; and because Debtor has no ongoing duty to disclose assets acquired post-confirmation that are n...
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MEMORANDUM 1 The matter before the Court is the Motion of Herrick Feinstein LLP (“Herrick”) and Impala Partners, LLC (“Impala”) For Authority to Enter Into Agreement” (docket no. 4741)(the “Motion”). The Motion asks for court approval of a “hedging transaction” with Credit Suisse Loan Funding LLC (“CS”) regarding a portion of Herrick’s and Impala’s anticipated contingency f...
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MEMORANDUM 2 On April 15, 2005, Exide Technologies and three of its affiliates filed voluntary chapter 11 petitions with this Court. A “Joint Plan of Reorganization of the Official Committee of Unsecured Creditors and the Debtors” dated March 11, 2004 (D.I.# 3918)(the “Joint Plan”), was confirmed by Order of this Court dated April 21, 2004 (D.I.# 4340). Currently before the Court is the...
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OPINION 1 INTRODUCTION JEPSCO, Ltd. (“Jepseo”) and Ambrose M. Richardson, Esq. (“Richardson”) have filed applications seeking the allowance of fees and expenses as administrative expenses pursuant to section 503(b) of the Bankruptcy Code. The Chapter 11 Trustee, the United States Trustee, and the Official Committee of Unsecured Creditors (the “Committee”) (collectively, the “...
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MEMORANDUM OF DECISION ON LANDLORD’S MOTION FOR ORDER ALLOWING AND DIRECTING IMMEDIATE PAYMENT OF ADMINISTRATIVE EXPENSE CLAIMS This matter came before the Court on Edward B. McNally’s (“Landlord”) Motion for Order Allowing and Directing Immediate Payment of Administrative Expense Claims (Docket # 617) and Iron Age Corporation’s and Iron Age Canada Ltd. (“Debtors”) Objection (Docket # 625...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Complaint filed by Auburn Development Corporation (“Auburn”) against the Debtor, John B. Shorton (“Shorton” or the “Debt- or”). Through its Complaint, Auburn seeks a determination that the Debtor, a former attorney licensed to practice law in the Commonwealth of Massachusetts, “wrongfully, and fraudulently converted the assets of A...
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Opinion Introduction Before the Court are three matters: Plaintiffs’ Motion for Permission to Amend Complaint and Motions for Summary Judgment filed by Defendants Countrywide Home Loans, Inc. (Countrywide) and Argent Mortgage Company LLC (Argent). All of the motions are opposed. After hearings held on August 28 and September 20, 2007, the Court took the matters under adviseme...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW Eleven years ago, this Court had the occasion to consider the unfortunate predicament of a debtor who found herself trapped between “a modern day version of Seylla and Charybdis,” Homer’s mythical sea monsters, when she financed her casino binges with her credit cards. See Chevy Chase Bank, FSB v. Briese (In re Briese)...
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OPINION AND ORDER In the case at bar, José L. Sánchez and Nelly Montalvo Garriga (hereinafter “Plaintiffs”) object to R & G Mortgage’s (hereinafter “Defendant”) proof of claim and request damages and attorney’s fees for violation of the Real Estate Settlement and Procedure Act (hereinafter “RESPA”) 12 U.S.C. § 2601 et seq. This Court entered an Opinion and Order ...
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379 B.R. 847 (2007) In re Douglas Jay SAUNDERS, Debtor. No. 07-31529. United States Bankruptcy Court, D. Minnesota. December 11, 2007. *848 *849 Michael S. Dove, Gislason & Hunter LLP, New Ulm, MN, for Debtor. Charles W. Ries, Maschka Riedy & Ries, Mankato, MN, for Petitioning Creditor. ORDER GRANTING MOTION TO STRIKE DEBTOR'S RESPONSE AND DENYING DEBTOR'S MOTION TO DISMISS DENNIS D. O'BR...
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Before the Court is the motion of World-Com Communications, Inc. and its subsidiaries (the “Debtors” or “WorldCom”) to strike Communications Network International, Ltd.’s (“CNI”) demand for a jury trial. WorldCom argues that CNI does not have a right to a jury trial because it subjected itself to the jurisdiction of the bankruptcy court upon filing its proof of claim and that WorldCom’s objecti...
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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, Byron Shinn, as Trustee of the Elrod Trust, commenced this proceeding by filing a Complaint Objecting to Discharge. In the Complaint, the Plaintiff asserts that the discharge of the Debtors, Glenn E. H...
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DECISIONS AND ORDER This cause comes before the Court on the Motion of the United States Trustee to Dismiss this case pursuant to 11 U.S.C. § 707(b)(1), § 707(b)(2) and § 707(b)(3). A hearing was held on this matter. At the conclusion of this Hearing, the Court, finding their evidence to be incomplete, ordered the Debtors to submit updated financial information. The Debtors have since...
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OPINION GRANTING IN PART AND DENYING IN PART APPLICATION FOR POST-CONFIRMATION FEES I. Introduction This opinion addresses an application for fees by the Debtor’s counsel in a Chapter *814 13 case, which has since converted to Chapter 7. The fees at issue were all incurred post-confirmation. The Chapter 13 Trustee and the Debtor have objected to the fees. The...
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MEMORANDUM OF DECISION Before the court is a dispute as to whether the unpaid balance of attorneys’ fees should be distributed under the confirmed plan in this case before any distribution is made to creditors other than holders of claims for domestic support obligations as described under 11 U.S.C. § 507(a)(1), 1 and administrative expenses of the Chapter 13 Trustee (hereafter...
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RULING ON OBJECTION TO CLAIM I. Issue At issue is an objection (“the objection”) by West Service Road Associates (“West”), a creditor in the Chapter 7 case of A-Plus Auto "Wholesalers, LLC (“the debtor”), to the proof of claim filed by another creditor, the State of Connecticut, Department of Revenue Services (“the Department”). West is the former landlord of the debtor under an abandon...
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MEMORANDUM OPINION AND ORDER GRANTING CHAPTER 13 TRUSTEE’S MOTION TO CONVERT CASE TO CHAPTER 7 AND DENYING DEBTOR’S MOTION TO VOLUNTARILY DISMISS CHAPTER 13 CASE This matter is before the Court on the Chapter 13 Trustee’s Motion to Convert Case to Chapter 7 (“Motion to Convert ”) [Docket No. 33] filed by the Standing Chapter 13 Trustee (“Chapter 13 Trustee ”) on ...
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MEMORANDUM OPINION AND ORDER SUSTAINING DEBTOR’S OBJECTION TO CLAIM NO. 7 The Claimant, B-Line, LLC (“B-Line ”), asserts an unsecured claim against James M. Leverett (the “Debtor”) in the amount of $9,184.78. The Debtor objects to the allowance of B-Line’s claim. This Court has jurisdiction to consider the objection to B-Line’s claim pursuant to 28 U.S.C. § 13...
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ORDER RE: MOTION TO DISMISS Debtors Dean and Ann Timmerman move to dismiss their chapter 7 case. Several creditors and parties have objected. These include case trustee Larry S. Eide; Habbo G. Fokkena, the United States trustee; and three creditors — Farmers Cooperative Company, Crow’s Hybrid Seed Company, and Ag Partners, LLC. Timmermans assert that the case must be dismissed becaus...
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MEMORANDUM 1 On October 30, 2006 (the “Petition Date”), Dura Automotive Systems, Inc. and related entities (the “Debtors”) filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code in the United States Bankruptcy Court for the District of Delaware. The Debtors are operating their businesses and managing their properties as debtors-in-posses...
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RULING DENYING MOTION TO ANNUL STAY I. Maria J. Alipio (“Alipio”) filed a Chapter 7 case on March 23, 2005. The court granted Alipio a discharge and closed her case as a “no asset” case on July 12, 2005. The court, on May 9,2006, reopened the case on the motion of Andre Haughton (“Haughton”) and Mortgage Electronic Registration Systems, Inc., As Nominee for Wachovia Mortgage Corporation (“M...
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OPINION Introduction Nina L. Korwin (“Debtor”) filed a voluntary Petition under Chapter 7 of the Bankruptcy Code on June 21, 2006. Mason and Mason (“Mason”) filed an objection to the Debtor’s claim of exemptions at Document No. 14. Presently before the Court is a Motion for Summary Judgment filed by Mason at Document No. 59. Debtor opposes the Motion. Factual Background On September...
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Memorandum Decision This matter is before the Court pursuant to two adversary complaints filed in connection with the bankruptcy cases of Nina Marie Barbieri (“Nina” or the “Debt- or”) and 189-30 Realty Corp. (the “Corporate Debtor”). The first adversary proceeding (adversary proceeding no. 03-1131-478) was commenced by Louis Barbi-eri (“Louis Barbieri” or the “Plaintiff’), seeking, ...
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DECISION AND ORDER ON GABRIEL ENTITLEMENT TO POST-PETITION INTEREST In this contested matter in these jointly administered chapter 11 cases, secured creditor Gabriel Capital L.P. (“Gabriel”) seeks the allowance of post-petition contractual interest on its claim. After an earlier hearing in April 2005, this Court issued an oral ruling determining that Gabriel held a fully secured claim. Th...
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AMENDED MEMORANDUM OPINION REGARDING DEFENDANT WALTER IRMEN’S MOTION TO DISMISS PLAINTIFF KENNETH M. NEIMAN’S ADVERSARY COMPLAINT PURSUANT TO FRCP 12(b)(6) (Bankruptcy Rule 7012) Defendant Walter Irmen (“Irmen,” “Defendant,” or “Debtor”) filed his Chapter 7 bankruptcy case on February 22, 2007. Plaintiff Kenneth M. Neiman (“Neiman” or “Plaintiff’) filed this related Adversary Complain...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Defendant Bruce S. Smith (“Smith” or “Debtor”) filed his Chapter 7 bankruptcy case to which these Adversary proceedings relate. A discharge order was entered therein on January 17, 2006. Prior to Smith’s bankruptcy filing, Plaintiffs Trina Tidwell (“Tidwell”) and Sandra Sterling-Ahlla (“Sterling-Ahlla”) (collectively “Plaintiffs” or “Creditors”)...
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OPINION REGARDING AVOIDANCE AND RECOVERY OF PREFERENTIAL TRANSFER I. JURISDICTION This court has jurisdiction over this bankruptcy case. 28 U.S.C. § 1334. The case, and all related proceedings, have *709 been referred to this bankruptcy court for decision. 28 U.S.C. § 157(a) and LR. 83.2(a) (W.D.Mich.). This adversary proceeding is a core proceeding because i...
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MEMORANDUM OF DECISION Before the Court is the “Trustee’s Objection to Claim of Exemption” (the “Objection”) filed by Janice G. Marsh, the Chapter 7 Trustee (the “Trustee”). The Trustee objects to the debtors’ claim of a homestead exemption under Massachusetts General Laws ch. 188 (the “Massachusetts Homestead Statute,” “Massachusetts Homestead Exemption” or “MGL ch. 188”) in their mo...
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OPINION Under advisement is the Motion of the United States Trustee to “Define Chapter 11 Trustee’s Continuing Role.” (Doc. #707) Procedurally, this case began as a Chapter 11 on December 6, 2001 and witnessed several unsuccessful plan proposals. On July 20, 2006, on the Court’s own motion, a Chapter 11 Trustee was appointed. Sub *80 sequently, on October 5, 2006, a plan filed by a credit...
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OPINION The Plaintiff, Sovereign Bank Corporation, has filed a Complaint against The Quandel Group, Inc. entitled “Complaint of Sovereign Bank Corporation for Declaratory, Injunctive and Other Relief in Aid of Enforcement of Final Order of Bankruptcy Court, including, in the Alternative, Permission to Amend its Proof of Loss.” The background of this two count Complaint centers around ...
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OPINION 1 During the hearing on the Amended Plan of Reorganization, the Chapter 11 *773 Trustee reported to the Court that after tabulation of both acceptances and rejections to the Amended Plan, it was determined that the Trustee did not have enough votes for automatic confirmation of the Amended Plan. Nonetheless, the Trustee argued that the Court could still confirm the Amended Plan ...
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OPINION An Objection to the Debtors’ Chapter 13 Plan has been filed by the standing Trustee and an unsecured creditor, eCast Settlement Corporation. The Trustee’s Objection is currently subject to settlement discussions, but the Objection of eCast raises fundamental issues of interpretation with regard to a certain BAPCPA amendment as well as factual issues addressing the reasonablene...
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OPINION 1 The instant matter presents two Objections by the Chapter 7 Trustee to Claim No. 1 and 2, both filed by an entity known as 165248 Canada, Ltd. The sole objection filed to each of the referenced claims is that each claim is filed in Canadian currency. The Trustee’s position is that each claim must be converted to an appropriate exchange rate as of the date of the f...
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OPINION Objections to the Debtor’s Chapter 13 Plan have been filed by a creditor and the Chapter 13 Trustee. There appears to be three arguments advanced. 1. Insufficient monthly payments are being devoted to the Plan. 2. The unsecured creditors are receiving less than they would receive in Chapter 7. 3. The case was filed in bad faith. While the Chapter 13 Trustee has limited his obj...
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OPINION The Debtors have filed what they titled as “Debtors’ Motion for Provision of Exempt and Non-Estate Property” as well as “Debtors’ Objection to Trustee’s Proposed Distribution” contained in his Final Report. This came up for hearing on April 19, 2007. The Debtors raise two issues with regards to the Chapter 7 Trustee’s Final Report. Those issues are summarized as follows: ...
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OPINION According to 11 U.S.C.A. § 1325(b), when confronted with an objection, a debt- or must either pay all claims in full or dedicate sufficient funds to the plan as measured by so much of “disposable income” as is received during the applicable commitment period. The Trustee has filed an Objection to the Debtors’ Plan alleging that expenses set forth on Official Form B22C have been over...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Philip V. Martino, as Chapter 7 trustee (the “Trustee”) for an order directing turnover of real estate escrow deposit (the “earnest money”) pursuant to 11 U.S.C. § 542(a). Although the escrow-ee has not responded to the Trustee’s mo *153 tion, Jeffery White, the prospective buyer of the real estate (th...
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ORDER REGARDING OBJECTION TO CONFIRMATION OF PLAN This matter is before the court on the objection to the trustee’s motion for confirmation of the debtor’s chapter 13 plan by eCast Settlement Corporation (“eCast”). A hearing was held in Fayetteville, North Carolina on September 6, 2007. The parties were given twenty days within which to file a legal memorandum or brief regarding the issues pres...
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MEMORANDUM OPINION This opinion is with respect to the motion (Adv.Doc. #4) of defendants Wells *133 Fargo Bank, National Association and Wells Fargo Home Mortgage, Inc. (collectively “Wells Fargo”) to dismiss plaintiff Mortgage Lenders Network USA, Inc.’s (“MLN”) second claim for relief in the above captioned adversary proceeding. The motion seeks dismissal under Fed. R. Ban...
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DECISION This matter comes before the Court on the motion of defendant Chase Bank USA, N.A., (“Chase”) to dismiss this adversary proceeding, which was commenced by Nigel Anthony Russell (“plaintiff’ or “Russell”), seeking actual and punitive damages against Chase based on allegations that Chase violated the discharge injunction provided by 11 U.S.C. § 524 by intentionally failing to c...
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ORDER AUTHORIZING EMPLOYMENT OF LAGERLOF, SENEGAL, GOSNEY & KRUSE, LLP AS DIVORCE ATTORNEYS TO MICHAEL GOLDSTEIN Debtors’ motion for leave to employ LAGERLOF, SENECAL, GOSNEY & KRUSE, LLP (“LAGERLOF”) as divorce attorney to MICHAEL GOLDSTEIN (“MICHAEL”) came on for hearing at the date, time and place set forth above. David A. Tilem appeared on behalf of the Debtors in support of the ...
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POST-TRIAL DECISION EXPUNGING CLAIM NO. 5. 360networks Corporation (“360net-works”) filed a $100 million proof of claim in this case. The claim is based on a guarantee (the “Guaranty”) given by the debtor, Asia Global Crossing, Ltd. (“Asia Global”). The background to the dispute, discussed at length in In re Asia Global Crossing, Ltd., 326 B.R. 240 (Bankr.S.D.N.Y.2005), culmina...
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MEMORANDUM OPINION AND ORDER TREATING MOTION TO DISMISS AS A MOTION FOR SUMMARY JUDGMENT AND GRANTING THE SAME Preliminary Statement Before the Court for consideration at a hearing held on November 14, 2007 was the Motion to Dismiss (dkt.29) filed by Francois Mitón (hereafter “Defendant” or “Debtor”) on May 18, 2007. Mintec Corporation (hereafter “Plaintiff’ or “Mintec”) file...
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MEMORANDUM OPINION These cases both were filed initially as chapter 13 1 cases but have been converted on the debtors’ (collectively, “Debtors”) respective motions to chapter 7. The cases are before me on the Debtors’ Motions to Strike Requirement to File Official Form B22A in Conversion from Chapter 13 to Chapter 7 (“Motions”). As the legal issues raised in the Motions are the same, they are...
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OPINION In this case, the Chapter 13 Trustee appeals the bankruptcy court’s order denying one of his objections to the Debtor’s proposed plan. Although the Debtor did not participate in this appeal, the United States Trustee’s Office filed an amicus brief in support of the bankruptcy court’s decision. For the reasons stated herein, we AFFIRM. I. APPELLATE JURISDICTION This Court has jurisdi...
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MEMORANDUM Hearing was held in Omaha, Nebraska, on December 10, 2007, on Debtor’s Chapter 13 Plan (Fil.# 4), an Objection to Confirmation of Plan filed by the Chapter 13 Trustee (Fil.# 15), and Debtor’s Response to Trustee’s Objection (Fil.# 18). Charles B. Garman appeared for Debtor, and Tom Kenny appeared on behalf of the Chapter 13 Trustee. This memorandum contains findings of fact and con...
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ORDER This matter came before the Court on various Motions and Amended Motions filed by Omega Consulting, Inc. (“Omega”), as the Assignee of Rush Hampton Industries, the Debtor herein (“Debtor”), seeking turnover of unclaimed funds totaling $36,624.54. The Motions and Amended Motions include Doc. Nos. 618, 620, 623, 624, 626, 627, and 631 (collectively, the “Motions”). Various Orders were ent...
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ORDER This matter came before the Court on the Interim Partial Contingent Fee Application of James A. Foster and Foster & Kelley, P.A. 1 Re: Adversary Proceeding Number 96-00159 2 (“Adversary Fee Application”) 3 and the Amendment to Amended Final Application (“General Fee Application”) 4 filed by James A. Foster (“Foster”) and Akerman Senter...
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ORDER This matter came before the Court on the Objection (Doc. No. 32) (“Objection”) filed by Herman Andrew Yates, Sr., the Debtor herein (“Debtor”), to Claim No. 8 of Creative Money Works, Inc. (“Creative”) and Creative’s Response thereto (Doc. No. 38). An evidentiary hearing was conducted on September 4, 2007 at which the Debtor, his counsel, a representative of Creative, counsel for Creati...
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ORDER This matter came before the Court on the Debtor’s Motion for Rehearing of Order Dismissing Appeal (Doc. No. 103) (“Motion”) filed by William David Millsaps, the pro se Debtor herein (the “Debtor”), requesting a rehearing of the Court’s Order Dismissing Appeal (Doc. No. 99). The Order Dismissing Appeal denies the Debt- or his right to appeal a previous Order entered by this Court as hi...
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ORDER This matter came before the Court on the Motion for Entry of Final Judgment By Default (“Motion”) 1 filed by Blue Dream Pools, Inc., the Plaintiff herein (“Plaintiff’), against Randy Ross, the Defendant and Debtor herein (“Debtor”). The Plaintiff objects to the Debtor receiving a discharge pursuant to 11 U.S.C. Sections 727(a)(2), 727(a)(3), and 727(a)(4)(A) in Count ...
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379 B.R. 760 (2007) In re Patrick L. GLENN, Debtor. Frances Gecker, not individually but as Chapter 7 Trustee for Patrick L. Glenn, Plaintiff, v. James P. Gierczyk, Defendant. Bankruptcy No. 02 B 40851, Adversary No. 04 A 04493. United States Bankruptcy Court, N.D. Illinois, Eastern Division. December 12, 2007. *761 Steven Tobin, Northbrook, IL, Gordon E. Gouveia, Merrillville, IN, for Debtor. Jo...
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DECISION ON MOTIONS FOR ACCESS Before the court are motions brought by news media seeking to intervene in this Chapter 15 1 proceeding for the limited *862 purpose of gaming access to the Rule 2004 examination of the Debtor, taken by the foreign representative, and to the record of that examination (which has not been filed), as well as access to any future examina...
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*404 MEMORANDUM OF DECISION Before the Court is an objection to the amended plan of reorganization (the “Plan”) filed by the debtor, Samuel Watkins (the “Debtor”), in this Chapter 13 bankruptcy case. The Chapter 13 trustee (the “Trustee”) objects to the Debtor’s proposed distribution to unsecured creditors on grounds that those creditors will not receive as much under the Plan as they would...
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DECISION AND ORDER This matter comes before the court on the Movant’s motion for relief from stay. A hearing on the matter was held August 9, 2007. After reviewing the evidence and relevant authorities, the Movant’s motion for relief from stay is DENIED. BACKGROUND The Debtor, James Forgette, and the Movant, Michaela Forgette Shaver, received a divorce decree from the Circuit Court of Frank...
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379 B.R. 621 (2007) In re James Regan FORGETTE, Debtor. No. 07-70458. United States Bankruptcy Court, W.D. Virginia, Roanoke Division. November 30, 2007. *622 Tonya. Leigh Janney, Rocky Mount, VA, for Debtor. Lance M. Hale, Lance M. Hale & Associates, Roanoke, VA, for Claimant. DECISION AND ORDER ROSS W. KRUMM, Bankruptcy Judge. This matter comes before the court on the Debtor's objection to...
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Decision on Trustee’s Objections to Debtors’ Plan Confirmation CAME ON for hearing on September 20, 2007 the confirmation of the two foregoing chapter 13 plans. At issue is whether Social Security benefits (including supplemental security income benefits for a disabled person) must be included when calculating a below-median income debtor’s projected disposable income for purposes of sect...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court on the Motion to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(2) and (3) (the “Motion”) filed by the United States Trustee for Region 9 (the “Trustee”) over the objection of Bruce A. Burton (the “Debtor”). On June 29, 2007, this Court issued a Memorandum of Opinion and Order denying the Trustee’s Motion, in part, by finding that t...
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MEMORANDUM OF DECISION Introduction This decision addresses whether a chapter 7 debtor may invoke Idaho’s worker compensation law to exempt a Tennessee worker’s compensation recovery. The con *14 test began when chapter 7 trustee R. Sam Hopkins (“Trustee”) filed Trustee’s Objection to [Debtor’s] Claim of Exemption. Docket No. 13. Debtor Dorothy E. Alm-gren responded. Docket No. 15. The Co...
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OPINION Appellants James and Helen Ries appeal two bankruptcy court orders denying their motions to “reconsider” two prior rulings. The motions were made in an adversary proceeding filed by the Rieses against Debtors Susan and Thomas Sukut. Because we find that these two appeals were not taken from final orders, this Court is without appellate jurisdiction to consider the Rieses’ claims a...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the United States of America’s Motion to Dismiss the Debtor’s Chapter 13 case. As grounds for its Motion, the United States maintains that the Debtor’s failure to comply with the requirement of 11 U.S.C. § 1308(a) to file her 2006 federal income tax return no later than the day before the first scheduled meeting of creditors w...
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OPINION The Appellant, Roein Liquidation Estate (“Estate”), appeals the bankruptcy court’s September 29, 2006, order granting summary judgment in favor of Appellee, UPAC. For the following reasons, we AFFIRM the decision of the bankruptcy court. I. Background The Debtor in the underlying bankruptcy case, Rocor International, Inc., was a trucking company that provided freight hau...
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ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT At Fergus Falls, Minnesota. This matter came before the Court on motion for relief from stay. David McLaughlin appeared on behalf of the debtor; James Lodoen appeared on behalf the unsecured creditors committee; and Jon Brakke appeared on behalf of the movant Rabo Agrifinance, Inc. The Court granted the motion in part, reserving determinati...
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MEMORANDUM DECISION PROCEDURAL AND JURISDICTIONAL BACKGROUND On October 6, 2006, plaintiffs Muth Mirror Systems, LLC, and K.W. Muth Company, Inc. (“Muth”), filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code. Previously, on July 29, 2006, Gentex Corporation filed a lawsuit against one of the debtors, K.W. Muth Co., Inc., and a related entity, Muth Company, LL...
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MEMORANDUM OPINION THIS MATTER comes before the Court pursuant to the Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. § 707(b) (the “Motion”), filed by Paul R. Thomas on behalf of the United States Trustee (“UST”) for this region, and the Debtors’ Response, filed by David Anthony Makres and Arva Melissa Makres (“Debtors”). The issue before the Court is whether the Debtors may deduct...
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MEMORANDUM OF LEGAL OPINION RE: ORDER ALLOWING CREDITOR ROGER VIRTUE TO FILE A COMPLAINT I. A THEORY OF TRUSTEE LIABILITY .4 II.CASELAW ON THE ISSUE OF IMMUNITY FOR TRUSTEES. • A. The Position of Trustee Qualifies for Immunity. • B. A Trustee Can be Immune from Suit Concerning the Sale of Property of the Estate. o r-H C. Th...
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MEMORANDUM OPINION Debtors must be just and first pay their creditors before they can be generous to and prefer family members as this adversary proceeding demonstrates. This matter comes before the Court on the amended complaint filed by David R. Brown, the Chapter 7 trustee (the “Trustee”) of the bankruptcy estate of Mervyn C. Phillips, Jr. (the “Debtor”) against Mercedes Phillips (...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS THIS MATTER is before the Court on Defendants, Johnny Eugene and Dortha Lou Sizemores’ Motion to Dismiss Trustee Bloom’s Fraudulent Conveyance Claim and Brief (the “Motion”). (Dockets 20 and 21). Plaintiff, Linda Bloom, the Chapter 7 Trustee, filed a Response. (Docket 22). Plaintiff initiated this adversary proceeding wi...
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DECISION AND ORDER This cause comes before the Court after a Hearing on the Motion of the United States Trustee to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(3). At the conclusion of the Hearing, the Court took the matter under advisement so as to afford time to thoroughly consider the issues raised by the Parties. The Court has now had this opportunity, and finds, for the reasons now explai...
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MEMORANDUM OF OPINION AND ORDER The matter before the Court is the Defend ant/Third-Party Plaintiff William M. Crosby’s Motion to Dismiss Cross-Claims of Jose M. Rivera Against William M. Crosby. Rivera, the Debtor and a defendant in the above-captioned adversary proceeding, opposes the Motion. After considering the parties’ briefs and conducting a hearing on the matter, the Court issues the ...
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ORDER This matter came before the Court on the following pleadings filed by William David Millsaps, the pro se Debtor herein (the “Debtor”): (i) Motion to Avoid Lien of Marija Arnjas (Doc. No. 82); (ii) Motion Objecting to Objection to Motion to Avoid Lien of Marija Arnjas (Doc. No. 90); and the (iii) Motion to Avoid Lien of Creditor Marija Arnjas (Doc. No. 91). Marija Arn-jas (“Arnjas”) fi...
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MEMORANDUM OPINION This matter came before the Court on remand pursuant to the Order entered on August 27, 2007 by the United States District Court for the Middle District of Florida, Orlando Division, for further proceedings to determine whether the Circuit Court of Loudoun County, Virginia, which issued a default judgment in favor of Robin Lawler, the Plaintiff herein (“Plaintiff’),...
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ORDER This matter came before the Court on the Involuntary Petition (Doc. No. 1) (“Petition”) filed by R.W. Cuthill, Jr. (“Cut-hill”), on behalf of Evergreen Security, Ltd. (“Evergreen”) as the petitioning creditor, against J. Anthony Huggins, the alleged Involuntary Debtor herein (“Debtor” or “Huggins”), and the Debtor’s Answer thereto (Doc. No. 9). Evidentiary hearings were conducte...
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ORDER This matter came before the Court on the Involuntary Petition (Doc. No. 1) (“Pe *69 tition”) filed by R.W. Cuthill, Jr. (“Cut-hill”), on behalf of Evergreen Security, Ltd. (“Evergreen”) as the petitioning creditor, against Jon M. Knight, the alleged Involuntary Debtor herein (“Debtor” or “Knight”), and the Debtor’s Answer thereto (Doc. No. 9). Evidentiary hearings w...
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ORDER This matter came before the Court on the Involuntary Petition (Doc. No. 1) (“Petition”) filed by R.W. Cuthill, Jr. (“Cut-hill”), on behalf of Evergreen Security, Ltd. (“Evergreen”) as the petitioning creditor, against Atlantic Portfolio Analytics & Managements, Inc., a/k/a APAM, Inc., the alleged Involuntary Debtor herein (“Debt- or” or “APAM”), and the Debtor’s Answe...
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MEMORANDUM OPINION This matter came before the Court on the Motion for Judgment by Default and the supporting Affidavits (Doc. Nos. 14,15, 16, 24) (collectively, the “Motion”) 1 filed by Phillips, Mille & Costabile Co., L.P.A., the Plaintiff herein (“Plaintiff’) seeking summary judgment on its 11 U.S.C. Section 523 non-dischargeability Complaint (Doc. No. 1) (“Complaint”) a...
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MEMORANDUM OPINION DENYING MOTION TO CONVERT CASE FROM CHAPTER 7 TO CHAPTER 13 This matter came before the Court for hearing on October 17, 2007, after sufficient and proper notice, on the Motion to Convert Chapter 7 Case to Chapter 13 (the “Conversion Motion”), filed by the *29 above-referenced debtor (the “Debtor”) on September 24, 2007. At the hearing, Edwin H. Ferguso...
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OPINION In this pre-BAPCPA preference action, the trustee appeals the bankruptcy court’s ruling that the lien on the debtor’s motor vehicle was protected from avoidance by the enabling loan exception, which excepts from avoidance certain security interests perfected within 20 days of the debtor’s possession of the collateral. Although the security interest in this case was not actually perfected ...
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OPINION Appellant B-Line, LLC appeals an order of the bankruptcy court disallowing its claim against Patricia M. Kirkland (“Debt- or”). The bankruptcy court sustained the Objection of Michael J. Caplari (“Trustee”), whose only objection to the claim was that it failed to meet the requirements of the Federal Rules of Bankruptcy Procedure because the claimant had not attached any supporting documen...
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MEMORANDUM OPINION This closed Chapter 13 case is before the court on remand after an appeal to the district court. At issue is the debtor’s motion to reopen the case, pursuant to § 350(b) of the Bankruptcy Code (Title 11, U.S.C.), for the purpose of presenting a motion for sanctions against the debtor’s mortgagee, with whom he is involved in a state court foreclosure action. This court o...
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*689 MEMORANDUM ON MOTION FOR SUMMARY JUDGMENT This proceeding comes before the Court on the motion for summary judgment filed by the Internal Revenue Service (“IRS”). Upon consideration of the summary judgment motion and the supporting documentation, the Court holds that summary judgment should be granted in favor of the IRS. I. STATEMENT OF JURISDICTION This Court has...
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*227 MEMORANDUM of DECISION Plaintiffs John R. Businger (“John”) and Katherine J. Businger (“Kathy”), collectively referred to as the “Busingers,” commenced this Adversary Proceeding on February 14, 2007, seeking a determination that amounts the Busingers paid a third party contractor to finish their home above and beyond the contract amount agreed to by the Busingers and Lynxx-Builders, LL...
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OPINION How is a debtor’s “projected disposable income” calculated for chapter 13 plan confirmation purposes? This determination is significant because the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23 (2005) (“BAPCPA”), provides that if a party in interest objects to a debtor’s proposed plan, it may not be confirmed unless the debtor ...
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James Killips, the Chapter 11 Trustee of Debtor Prime Realty, appeals from the judgment of the bankruptcy court 1 in favor of Defendants on Trustee’s preference and fraudulent conveyance claims. We affirm. I. Debtor, Prime Realty, Inc. (“Prime”), was involved in several joint ventures with Leo Dahlke and RCS & Sons, Inc. (“RCS”). The primary purpose of these joint ventures ...
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OPINION This appeal turns on the meaning of the community property discharge under 11 U.S.C. § 524(a)(3). 1 The bankruptcy court ruled that the community property discharge entered in the case of one spouse forever discharged the entire community from then-existing community claims and that after-acquired community property could not later be liable for such a claim, notwithsta...
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378 B.R. 257 (2007) In re John PAK, Debtor. John Pak, Appellant, v. eCast Settlement Corporation; American Express Centurion Bank; Martha Bronitsky, Trustee; United States Trustee, Appellees. BAP No. NC-07-1201-DCaK, Bankruptcy No. 05-49326. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted on October 26, 2007. Filed November 7, 2007. *258 Cathleen Cooper Moran, ...
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OPINION National Sign and Signal (“NSS”) objects to the dischargeability of its claim against Debtor James Livingston. NSS’ objection is based upon Sections 523(a)(2)(A), (a)(4) and (a)(6). 1 The matter was tried on June 18, 2007. Although both parties appeared and argued their respective positions, no witnesses were called. Rather, the parties simply stipulated to testim...
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AMENDED MEMORANDUM OPINION The issue before me requires that I plunge further into the semantic briar-patch generally referred to as the Hanging Paragraph, added to § 1325(a) of the Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). 1 Specifically, I must decide whether a creditor holds a purchase money security interest (“PMSI”) ...
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379 B.R. 912 (2007) In re Jawad Mahmoud HASHIM, Debtor. Arab Monetary Fund, Appellant, v. Jafar Hashim; Maryam Salass; Ali Salass; Jawad Mahmoud Hashim; JHH Canadian Capital Corporation; 1954920 Nova Scotia Limited; Mark D. Hashimoto, Chapter 7 Trustee; Louis A. Movitz, Chapter 7 Trustee; 1954933 Nova Scotia Limited; Westfalen Bank International, S.A., Appellees. BAP No. AZ-07-1145-KDN, Bankruptc...
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This appeal involves a dispute between the limited partners of Telluride Income Growth Limited Partnership (“TIGLP”), Telluride Asset Resolution, LLC (“TAR”), a debtor in another bankruptcy case, and the present debtor, Telluride Global Development, LLC (“Telluride Global”). The bankruptcy court was asked to abstain from hearing the dispute, and to allow the matter to proceed in state court. Th...
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MEMORANDUM OPINION I. INTRODUCTION Presently before me is the motion of Nicholas Mattera (“the Movant”) to Reopen Closed Case and Annul Automatic Stay (“the Motion”). During the pendency of this chapter 11 bankruptcy case filed by David Coletta (“the Debtor”), the Movant entered default judgment against him in a state court mortgage foreclosure action. Three (3) mont...
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MEMORANDUM OPINION Debtor Michael Owens has brought this adversary action to avoid federal tax liens of the United States Internal Revenue Service (IRS) against his exempted interest in the marital residence, which he owns with his non-debtor spouse as a tenant by the entirety. Debtor asserts that the tax liens constitute unauthorized post-petition transfers of property of the bankrup...
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Decision and Order Regarding Reaffirmation Agreement This case involves a creditor who failed to get the debtor to execute a reaffirmation agreement prior to discharge, and so pressed the debtor to file a motion to set aside the discharge for the limited purpose of filing the (untimely) reaffirmation agreement. Can reaffirmation agreements made post-discharge ever be effective? Does it ma...
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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 October 17, 2007 and taken under advisement. After due consideration of the facts and circumstances of this case, the Court, for the reasons noted below, concludes the Application should be denied. FINDINGS OF FACT The...
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AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW Findings of Fact Introduction 1. At all times relevant to the above captioned Adversary Proceeding No. 00-6068, Sunpoint Securities, Inc. (“Sun-point”) was a member of the Securities Investor Protection Corporation (“SIPC”). 1 2. On November 19, 1999 (“Decree Date”), the Honorable John Hannah, Judge of the ...
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*265 ORDER OVERRULING DEBTOR’S OBJECTION TO COMMUNITY AMERICA CREDIT UNION’S CLAIM AND SUSTAINING COMMUNITY AMERICA CREDIT UNION’S OBJECTION TO CONFIRMATION OF THE PLAN Debtor Lisa Kay Weiser owns a vehicle which was financed by the predecessor to creditor Community America Credit Union (“Community America”). She objects to Community America’s fully-secured proof of claim, asserting that, b...
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MEMORANDUM OF DECISION By his complaint in this adversary proceeding, Donald R. Lassman, as he is Chapter 7 trustee in this bankruptcy case, objects to the discharge of the defendant and debtor, John J. Keefe, III, under 11 U.S.C. § 727(a)(3) on the basis that he destroyed certain documents and records from which his financial condition or business transactions might be ascertained. The matte...
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MEMORANDUM OPINION This matter is before the Court on the objection of Debtor Woods Auto Gallery, Inc. (“Debtor”) to the Motion for Allowance of Fees, Costs and Expenses filed by Bank Star One (“Bank Star” or “Bank”), which is based on a Promissory Note, Commercial Security Agreement, Floor Plan Security Agreement and Signatory Authorization, and Floor Plan Agreement between Bank Star...
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DECISION & ORDER Counsel for the Official Committee of Unsecured Creditors has filed a final application for the allowance of its fees and expenses. The outcome requires the consideration of three issues: whether any portion of the allowance would violate the prohibition against fee splitting as stated in 11 U.S.C. § 504(a); whether counsel may receive compensation despite a failure t...
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ORDER DENYING PLAINTIFF’S MOTION FOR CERTIFICATION OF DIRECT APPEAL TO THE COURT OF APPEALS This adversary proceeding is before me on Plaintiff Entrust Corporation’s request [DE 79] that I certify under 28 U.S.C. § 158(d)(2) for direct appeal to the Court of Appeals Entrust’s appeal from my Order [DE 58] which dismissed this adversary proceeding with prejudice. Defendant Winchester Global Tru...
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MEMORANDUM OPINION This chapter 13 case is before the court for ruling on confirmation of the plan proposed by debtors David and Joni Saffrin. Standing chapter 13 trustee Glenn Stearns objects to confirmation. He argues that the Saffrins are not devoting all of their projected disposable income to the plan because their calculation of disposable income deducts payments for their daughter’s co...
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ORDER DENYING MOTION TO VACATE DISMISSAL AND SETTING § 526 HEARING WITH RESPECT TO ROGER BROACH This case was automatically dismissed pursuant to 11 U.S.C. § 521 of the Bankruptcy Code after the debtor failed to file certain documents within the time required by the statute. Mr. Irons seeks to have the dismissal vacated, alleging that the failure to file the required documents was his ...
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MEMORANDUM The trustee in bankruptcy brought this suit to avoid a transfer from the debtor, Mrs. Silvey, to her husband, Mr. Silvey. The other defendant is Mr. Silve/s company, Silvey Sheet Metal; it was involved in subsequent transactions with regard to the transferred property. The trustee and the defendants have filed motions for partial summary judgment and have agreed on some und...
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*160 MEMORANDUM OPINION CONCERNING SUPPLEMENTAL FEES These matters come before the Court upon remand from the United States District Court for the Eastern District of Virginia. On November 28, 2006, the United States District Court issued a Memorandum Opinion and Order in the above captioned matters which affirmed in part and reversed in part this Court’s Order Denying Supplement...
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MEMORANDUM OPINION This matter is before the Court on debtors’ Michael Lowe and Jacqueline Flowers-Lowe (“Lowes”) motion for summary judgment and chapter 7 trustee Linda Parks’ motions for summary judgment on the chapter 7 trustees’ motions for turnover of cash and stock distributions received by debtors through their employment. 1 Debtors are former employees of The Boei...
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ORDER ON DEBTORS’ MOTION FOR RECONSIDERATION OF ORDER ON MOTION TO COMPEL TURNOVER OF 2004 INCOME TAX REFUND THIS CASE came before the Court for hearing to consider the Motion for Recon *604 sideration of Order on Motion to Compel Turnover of 2004 Income Tax Refund filed by the Debtors, Steven J. Matthews and Tina A. Matthews. The issue in this case is whether a tax refund based on the Chil...
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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 Debtor, Anna S. Lykoudis, commenced this proceeding by filing a Complaint to Determine Dischargeability of a Debt. In the Complaint, the Debtor asserts that certain educational loans listed on her schedules shoul...
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MEMORANDUM OPINION Bankruptcy courts around the country are sharply divided over the issue before the Court in this Chapter 7 bankruptcy case. That issue is: May a debtor claim a deduction on the Bankruptcy Code’s “means test” for payments on debts secured by collateral that the debtor intends to surrender to the creditor? The majority of courts deciding this issue has held that ...
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MEMORANDUM 1 On June 5, 2002, several creditors of Student Finance Corporation (the “Debt- or”) filed an involuntary chapter 7 bankruptcy petition. On November 4, 2002, the Debtor consented to the entry of an order for relief under chapter 7 (the “Order for Chapter 7 Relief’) and converted its case to one under chapter 11 of the Bankruptcy Code. On September 29, 2003, Charles A. Stanziale, Jr...
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MEMORANDUM DECISION REGARDING MOTION TO CONVERT TO CHARTER 13 After the debtor received a discharge in this case under chapter 7 of the Bankruptcy Code (11 U.S.C.) on November 12, 2001, and after the case remained closed for more than five years, this case was recently reopened on the debtor’s motion. For the reasons that follow, I will grant the debtor’s unopposed motion to convert the case to ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION THIS CASE came before the Court for a final evidentiary hearing to consider the Complaint to Determine Dischargeability under Section 523(a)(3) filed by the Plaintiffs, Bruce Loud and Sharron Loud. On January 12, 2001, the Circuit Court for Wayne County, Michigan entered a Default Judgment in favor of the Plaintiffs and against the ...
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ORDER ON TRUSTEE’S MOTION FOR SUMMARY JUDGMENT THIS CASE came before the Court for hearing to consider the Motion for Summary Judgment filed by the Chapter 7 Trustee, Susan K. Woodard. The Motion relates to the Trustee’s Second Objection to the Debtor’s Claim of Exemptions, as Amended. The Debtor, Claude M. Zolnierowicz, is married to Adam Zolnierowicz. Prior to 2004, the Debtor and her husba...
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ORDER OVERRULING OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN THIS MATTER came before the Court for hearing on October 24, 2007, upon Bank of America/FIA Card Services’, formerly MBNA by eCAST Settlement Corporation as its agent,(“Ecast” or “Creditor”), Objection to Confirmation of Chapter 13 Plan (C.P.# 14), and Supplement to Objection to Confirmation of Chapter 13 Plan (C.P.# 32)(collec...
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MEMORANDUM OPINION Michael Askenaizer (the “Plaintiff’), as Chapter 7 trustee for Charwill Construction, Inc. (the “Debtor”), filed a complaint against Seacoast Redimix Concrete, LLC (“Seacoast”), to avoid certain payments the Debtor transferred to Seacoast within the ninety-day period preceding the filing of the bankruptcy petition. Presently before the Court is Seacoast’s second mot...
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ORDER GRANTING MOTIONS OF UNITED STATES TRUSTEE FOR DISGORGEMENT OF FEES AND IMPOSITION OF SANCTIONS AND NOW, this 27th day of December, 2007, upon my consideration of the United States Trustee’s Motion for Disgorgement and Return of Fees Paid by Debtor (the “Disgorgement Motion”) and her Motion for Sanctions Pursuant to Federal Rule of Bankruptcy Procedure 9011 (the “Sanctions Motion...
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MEMORANDUM OPINION This matter came before the Court upon the Petition for Recognition of Foreign Main Proceeding filed by Jeremiah Anthony O’Sullivan (“O’Sullivan” or “Trustee”), the official receiver and trustee of the property of Jonathan A. Loy, (the “Debt- or”) in an English Insolvency Proceeding. The Court has jurisdiction over these proceedings pursuant to 28 U.S.C. §§ 157(b) and 1...
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*821 ORDER THIS MATTER comes before the Court on the Plaintiffs Complaint, the Interve-nor’s Complaint (collectively the “Complaints”) and the Limited Moving Partners’ Answers thereto. The Court has reviewed the pleadings, the testimony, the written closing arguments of counsel and the legal authority cited by the parties and makes the following findings of fact and conclusions o...
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MEMORANDUM OF DECISION I. INTRODUCTION The matter before the Court is the Chapter 7 trustee’s Objection to the Proof of Claim of the Department of the Treasury — Internal Revenue Service (the “Objection”) and the response of the Internal Revenue Service (the “Service”). The Chapter 7 Trustee (the “Trustee”) contends that the IRS’ claim should be allowed as a tardily filed claim a...
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ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT THIS ADVERSARY PROCEEDING came before the Court for hearing to consider the Defendant’s Motion for Summary Judgment on Complaint to Determine Dis-chargeability under Section 523(a)(3). The plaintiffs, Bruce and Sharron Loud, commenced this proceeding by filing their Complaint to Determine Dischargeability Under Section 523(a)(3) against David R...
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ORDER ON MOTION OF TRAVELERS CASUALTY AND SURETY COMPANY TO CLARIFY APPLICATION OF THE CONFIRMATION INJUNCTIONS THIS CASE came before the Court for hearing to consider the Motion of Travelers Casualty and Surety Company to Clarify Application of the Confirmation Injunctions. In the Motion, Travelers Casualty and Surety Company (Travelers) requests that the Court “enter an order clarifying tha...
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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, Douglas N. Menchise, as Chapter 7 Trustee, commenced this adversary proceeding by filing a Complaint to avoid the transfer of substantially all of the assets of the Debtor, Dealers Agency Services, Inc., to a l...
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OPINION On consideration before the court is a motion for partial summary judgment filed *619 by the plaintiff, Merchants Financial Services Group, LLC, (“Merchants”); a response thereto having been filed by the defendant, Thomas Smith, (“debtor”); and the court, having considered same, hereby finds as follows, to-wit: I. The court has jurisdiction of the partie...
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ORDER The matter before the Court is Debtor’s Notice and Motion to Avoid Judicial Lien, Respondent’s Answer to Debtor’s Motion to Avoid Judgment Lien and Debtor’s Memorandum in Support of Motion to Avoid Lien. The matter was set for hearing on September 27, 2007, where Debtor appeared by counsel and was granted additional time to file a memorandum in support of the Motion to Avoid Lie...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The matter before the Court is Motion for Summary Judgment Filed by Plaintiffs, Debtors’ Statement of Undisputed Facts, Memorandum in Support of Debtors’ Motion for Summary Judgment, Defendants’ Motion for Summary Judgment, Defendants Columbia Sussex Corporation and Wimar Tahoe Corporations’ Statement of Uncontroverted Material Facts, Defendants...
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OPINION In this complicated and high-stakes case, we apply a somewhat obscure doctrine that involves the intersection of insolvency law principles and guaranty law, illustrating the temporal nature of a release of a guarantor when a voidable preference is recovered from the obligee. We also will be one of the first courts to address a question left unanswered by the Supreme Court earlier ...
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ORDER This matter came before the Court on the Motion for Sanctions Pursuant to Federal Rule of Bankruptcy Procedure 9011 (Doc. 1542) (“Sanctions Motion”) and the Motion for Fees and Costs Pursuant to 28 U.S.C. § 1927 (Doc. No. 1624) (“Fees Motion”) filed by the Debtor Evergreen Security Ltd. (“Evergreen”) through R.W. Cuthill, Jr., the President of Evergreen, seeking sanctions against the at...
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ORDER ON (1) PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM; (2) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND (3) DEFENDANT, SYNOVUS BANK OF TAMPA BAY’S MOTION FOR SUMMARY JUDGMENT AS TO COUNT I OF THE COMPLAINT THIS CASE came before the Court for hearing to consider (1) the Plaintiffs Motion to Dismiss Counterclaim; (2) the Plaintiffs Motion for Summary Judgment; and (3) the Defendant, Synovus Bank o...
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MEMORANDUM OPINION This matter came before the Court on the Complaint 1 filed by Energy Smart, Inc. St. Petersburg, the Plaintiff in Adversary Proceeding 6:06-ap-000108-ABB, against Carla P. Musselman, the duly-elected and acting Chapter 7 Trustee (“Trustee”) 2 for the bankruptcy estate of Energy Smart, Inc., the Trustee’s Counterclaim, 3 and the Compl...
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*801 OPINION In this interlocutory appeal, we face another interesting issue of statutory construction under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), this time concerning § 707(b)(2)(A)(ii)(I). 2 Specifically, in calculating the projected disposable income of an above-median income debtor for purposes of chapter 13 plan confirmation, we must determine ...
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MEMORANDUM OF DECISION A HEARING was held April 26, 2007 on the Debtors’ Motion for Reconsideration of the Order Dismissing Case. Creditor Colonial Bank, N.A. (“Colonial”) has joined the Debtors’ motion. The Bankruptcy Administrator opposes reinstatement. Holding: Section 109(h) requires an individual contemplating bankruptcy to obtain a credit briefing within a 180-day period...
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ORDER OVERRULING DEBTOR’S OBJECTION TO CLAIM OF INTERNAL REVENUE SERVICE THIS CORE PROCEEDING 1 comes before the Court on an Objection to Claim of Internal Revenue Service (“Objection”) filed by Nirwana Noronha, the debtor in this bankruptcy case (“Debtor”), objecting to a civil penalty assessed against her by the Internal Revenue Service (“IRS”) for her failure to ensure payme...
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CERTIFICATION TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT On June 6, 2007, the United States Bankruptcy Court for the District of Nevada issued an order denying confirmation of a Chapter 13 plan filed by Appellant, Jason M. Ransom (“Ransom”). The denial was based upon the fact that Ransom sought to take deductions for vehicle ownership expenses as part of the calculation o...
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ORDER ON PLAINTIFF’S RENEWED MOTION FOR SUMMARY JUDGMENT THIS CASE came before the Court for hearing to consider the Renewed Motion *400 for Summary Judgment filed by the Plaintiff, Mariann H. McCulloch. The Plaintiff commenced this adversary proceeding by filing a Complaint to determine the dischargeability of a particular debt owed to her by the Debtors, William Joseph Smith (Smith) and B...
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ORDER ON MOTION TO TAX COSTS AND THE CADLE COMPANY’S OBJECTION TO THE DEFENDANTS’ BILL OF COSTS THIS ADVERSARY PROCEEDING came on for hearing on the Motion to Tax Costs filed by the Defendants and on The Cadle Company’s Objection to Defendants’ Bill of Costs. The Debtors, Otsenre E. Matos and Joyce Ann Parks-Matos, filed a Chapter 7 petition on April 20, 2001, and received their discharge on Sept...
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First American Title Insurance Company (“First American”), subrogee of Option One Mortgage Corporation, and David J. Carney, as title agent for First American, appeal from a January 25, 2007, bankruptcy court order (the “order”), granting Michael and Elaine Pifalo’s (the “Debtors”) motion (for leave) to refinance the mortgage on their home. First American and Carney opposed the refinancing “bec...
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ORDER THIS MATTER comes before the Court on the Motion to Dismiss, filed by the United States Trustee (“UST”) and the Debtor’s response. Under changes made by the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”), a debtor’s Chapter 7 case may be dismissed under 11 U.S.C. § 707(b) if a court finds that the granting of relief would be “an abuse” of the provisions of Chapte...
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ORDER ON MOTION FOR RECONSIDERATION AND/OR CLARIFICATION OF FINAL ORDER ON MOTION FOR RECONSIDERATION OF ORDERS APPROVING INTERIM FEE APPLICATIONS AND SEVENTH INTERIM FEE APPLICATION OF GLENN RASMUSSEN FOGARTY & HOOKER, P.A. THIS CASE came before the Court for hearing to consider the Motion for Reconsideration and/or Clarification of Final Order on Motion for Reconsideration of Orders Approving I...
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ORDER ON PLAINTIFF’S MOTION TO DISMISS AMENDED COUNTERCLAIM THIS CASE came before the Court for hearing to consider the Motion to Dismiss Amended Counterclaim filed by the Plaintiff, Susan K. Woodard, as Chapter 7 Trustee (the Trustee). The Trustee commenced this adversary proceeding by filing a Complaint to Avoid and Recover Preferential and Fraudulent Transfers against the Defendants, Synovus Ba...
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ORDER GRANTING THE PLAINTIFF’S 11 U.S.C. § 727 OBJECTION TO DISCHARGE OF THE DEBTOR’S DEBTS This matter came before the Court on the plaintiffs adversary complaint objecting to the debtor’s discharge. The Court has jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Order of Reference of the District Court. This is a core' proceeding pursuant to 28 U.S.C. § 157(...
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ORDER ON APPLICATION BY TRUSTEE TO BE ALLOWED TO PAY ADMINISTRATIVE EXPENSE CLAIM TO CHRISTOPHER L. SMOOT DBA COMPUTER INFORMATION SERVICES THIS CASE came before the Court on March 13, 2007, and July 20, 2007, for an evidentiary hearing to consider the Application by Trustee to be Allowed to Pay Administrative Expense Claim to Christopher L. Smoot dba Computer Information Services. An Objecti...
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ORDER ON EMERGENCY MOTION TO DISQUALIFY COUNSEL FOR DEFENDANTS DOUG SMITH AND CPP THIS CASE came before the Court to consider the Petitioners’ Pro Se Emergency Motion to Disqualify Counsel for Defendants Doug Smith and CPP. The Motion was filed by Michael R. Presley, Esq. and Cynthia J. Presley (Presley). In the Motion, Presley seeks the entry of an order disqualifying and all co-counsel who ...
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*784 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, D.A.N. Joint Venture III, L.P., commenced this adversary proceeding by filing a Complaint to Deny Discharge. In the Complaint,, the Plaintiff asserts that the discharge of the Debtor...
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Order Regarding Mediation The litigation trust established pursuant to the debtors’ confirmed plan of reorganization has filed approximately 1170 adversary proceeding complaints seeking recoveries of preferences under 11 U.S.C. § 547(b). For convenience, the plaintiff in these adversary proceedings is referred to herein as “the debtor.” On May 1, 2007, the Court entered a separate “Order Es...
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ORDER ON MOTION TO RECONSIDER ORDER DISALLOWING CLAIM NO. 10 FILED BY HYUNDAI MOTOR FINANCE CO. THIS CASE came before the Court for hearing to consider the Motion to Reeon- *857 sider Order Disallowing Claim No. 10 filed by Hyundai Motor Finance Co. Claim Number 10 is an unsecured deficiency claim arising from the postconfir-mation repossession and sale of the Debt- or’s vehicle. The issue ...
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MEMORANDUM OF DECISION AND ORDER Issues in this adversary proceeding have been greatly confused by the parties’ failure to adhere to the Court’s order of October 26, 2006. Based upon a preliminary pretrial conference held on October 20, 2006 — and the parties’ statements at that conference — that order . very specifically set out the course of further proceedings in this ca...
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*701 MEMORANDUM OF DECISION At South Bend, Indiana, on September 28, 2007. Before the court is the Complaint to Determine Dischargeability of Debt and Objection to Debtor’s Discharge filed by Smithbuilt Financial, LLC, plaintiff in this adversary proceeding, against defendant Ronald Leon Hensley, chapter 7 debtor. In the Complaint, the plaintiff seeks denial of the debtor’s discharge purs...
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OPINION AND ORDER This case is before the court upon a motion to dismiss pursuant to 11 USC § 707(b) filed by the United States Trustee (the “UST”) on January 12, 2005 (Docket No. 20), and Debtors’ response to the motion to dismiss filed on March 21, 2005 (Docket No. 27). The United States Trustee seeks the dismissal of the case for substantial abuse, arguing that Mr. Freire Colon’s contribut...
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BRIEF MEMORANDUM AND ORDER DENYING MOTION TO APPROVE STIPULATION WHEREAS, the above-referenced debt- or (the “Debtor”) commenced this chapter 7 case by the filing of a petition on August 29, 2007; WHEREAS, no discharge has yet issued in this case. However, no objections to discharge have been filed, the period for such filing has expired (see Doc. I.D. No. 7), and the Debtor filed her “Cert...
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MEMORANDUM OPINION AND ORDER This matter came before the Court on the Application of Trustee for Compensation (Doc. No. 59) (“Application”) filed by Robert E. Thomas, the Chapter 7 Trustee *795 herein (“Trustee”). A hearing was held on August 6, 2007 at which the Trustee, counsel for the Trustee, and counsel for the Office of the United States Trustee (“UST”) appeared. The parties were invi...
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ORDER This matter came before the Court on the Motion for Status Conference and Request for Hearing (Doc. No. 29) and the Motion to Determine Debtor’s Instructions to the Chapter 13 Trustee are Ineffective (Doc. No. 41) filed by Laurie K. Weather-ford, the Chapter 13 Trustee herein (“Trustee”), the Motion for Relief from the Automatic Stay (Doc. No. 45) filed by Hol-lowbrook Homeowners Associ...
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ORDER This matter came before the Court on the Motion for Turnover of Assets of the Estate (Doc. No. 17) (“Motion”) filed by Scott R. Fransen, the Chapter 7 Trustee herein (“Trustee”), and the Response (Doc. No. 19) filed by Laura Kirk, the Debtor herein (“Debtor”). The Trustee seeks turnover of the Debtor’s alleged interest in a 2006 Mazda 3 (“Vehicle”).1 Evidentiary hearings were held on Octo...
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384 B.R. 808 (2007) In The Matter of Paul E. HUBBARD, Annemarie U. Hubbard, Debtors. No. 06-11190. United States Bankruptcy Court, N.D. Indiana, Fort Wayne Division. October 12, 2007. *809 Randall Brian Stiles, Stiles & Boughter LLP, Fort Wayne, IN, for Debtors. DECISION ROBERT E. GRANT, Bankruptcy Judge. As this court and others have repeated countless times, the 2005 Bankruptcy Reforms mad...
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ORDER CONCERNING MOTION TO DISMISS In this adversary proceeding, the Estate of John F. Valich (the “Estate”) alleges that a debt in the amount of $41,808.72 arising out of a judgment entered against the Debtor, Linda A. Trutko-Clayton (“Trutko-Clayton” or “Defendant”), is excepted from discharge under 11 U.S.C. § 523(a)(4). According to the adversary complaint filed by the Estate, the...
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ORDER GRANTING, IN PART, and DENYING, IN PART DEBTORS’ MOTION TO QUASH OR ADJUDICATE EFFECT OF GLENN TRANSCRIPT OF JUDGMENT LIENS AS TO MARJORIE GREGORY, DEBORAH GREGORY, AND WAYNE GREGORY THIS MATTER is before the Court on the Motion to Quash or Adjudicate Effect of Glenn Transcript of Judgment Liens as to Marjorie Gregory, Deborah Gregory and Wayne Gregory (“Motion”) filed by the Jo...
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MEMORANDUM OPINION This matter came before the Court on the Complaint for Nondischargeability of Debt and for Money Judgment (Doc. No. 1) filed by FIA Card Services, N.A., the Plaintiff herein (“Plaintiff’), against Da-veen Marie George, the pro se Debtor and Defendant herein (the “Debtor”), in which the Plaintiff objects to the discharge of debt pursuant to 11 U.S.C. Secti...
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MEMORANDUM OPINION This matter came before the Court on the Complaint (Doc. No. 1) filed by Alta One Federal Credit Union, the Plaintiff herein (“Plaintiff’), against Dana Bumgar-ner, a/k/a D. Neil Bumgarner, and Rebecca Bumgarner, the Debtors and Defendants herein (collectively, the “Debtors”), in which the Plaintiff objects to the discharge of a debt pursuant to 11 U.S.C. Section 52...
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ORDER This matter came before the Court on the Motions To Compel Production of Documents (Doc. Nos.418, 645, 838) (collectively, the “Motions to Compel”) filed by So-neet R. Kapila, the Chapter 11 Trustee (“Trustee”) for the jointly administered bankruptcy estates of Louis J. Pearlman (“Pearlman”), Louis J. Pearlman Enterprises, Inc. (“LJPE”), Trans Continental Airlines, Inc. (“TCA”), Trans Con...
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MEMORANDUM of DECISION The Court consolidated the above-referenced Lead Adversary Proceeding 07-00001 and Adversary Proceeding 06-00150 by Order entered June 27, 2007. Defendants Todd and Teresa Horob failed to file a timely answer in this Proceeding and upon request of the Plaintiff, the Clerk entered default against Todd and Teresa Horob on February 20, 2007, but said entry of defau...
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DECISION AND ORDER This cause comes before the Court after a Hearing on the Motion for Relief from Judgment .Confirming Plan Pursuant to Bankruptcy Rule 9024 Filed by American Credit Corporation. At the conclusion of the Hearing, the Court Denied the Mov-ant’s Motion for Relief from Judgment. The following memorializes this Court’s oral order and, pursuant to Bankruptcy Rules 7052 and...
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DECISION AND ORDER This cause comes before this Court after a Further Hearing on the Debtor’s Motion to Enjoin Criminal Prosecution. In said Motion, the Debtor, Barbara J. Price, moved “this court for an order enjoining the City of Toledo from proceeding with any criminal prosecution against the debt- or arising out of the debtor’s alleged obligation to maintain and effectuate repairs *413 ...
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384 B.R. 191 (2007) In. re Michael/Rebecca WILLIAMS, Debtor(s). No. 07-32277. United States Bankruptcy Court, N.D. Ohio. December 12, 2007. *193 Aaron Glasgow, Columbus, OH, for Michael Williams, Rebecca Williams. DECISION AND ORDER RICHARD L. SPEER, Bankruptcy Judge. This cause is before the Court on the Application of Debtors' attorney, Athena Inembolidis, for Compensation. In said application...
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ORDER ON (1) APPLICATION FOR ADMINISTRATIVE FEES (QUANTUM MERUIT COMPENSATION FOR CHAPTER 7 TRUSTEE); (2) APPLICATION AND SUPPLEMENTAL APPLICATION FOR ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES BY COUNSEL FOR TRUSTEE; AND (3) FORMER DEBTOR’S MOTION FOR QUANTUM MERUIT FEES INCURRED IN OPPOSITION TO THE FEE APPLICATIONS OF TRUSTEE AND TRUSTEE’S COUNSEL THIS CASE came before the...
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MEMORANDUM DECISION Donna McClearn filed this chapter 7 proceeding over three years ago. Ms. McClearn’s residence secured several mortgages. The Trustee has successfully avoided one of them. As a result of the avoidance of the mortgage, there may be equity in the residence available to creditors. The Trustee moves the Court to list the residence for sale with a sales agent. Ms. McClearn dispute...
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MEMORANDUM DECISION The Trustee seeks permission to sell certain property titled in T & R Enterprises. The defendant asserts that the Trustee has no interest in the property; or alternatively, the benefit to the estate of a *728 sale does not outweigh the detriment to the defendant. T&R Enterprises (“T & R”) is a general Wisconsin partnership. The “T” stands for Todd Hol...
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ORDER ON SANCTIONS On October 12, 2007, this Court entered its Order on Motion for Rule to Show Cause (Order)(Doc. No. 56) on Robert A. Mobley’s Motion for Rule to Show Cause (Motion)(Doc. No. 53), filed on August 20, 2007. Robert A. Mobley (the Debtor) filed his Motion and sought an Order from this Court holding R. David Meloney, Sydney Blum, (collectively Clients) and their attorney, Ludwig...
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ORDER ON TRUSTEE’S MOTION FOR REHEARING (Doc. No. 35) On October 23, 2007, this Court entered its Order overruling the Trustee’s Objection to Claim of Exemption of personal property claimed by Raymond T. Bezares and Marci J. Bezares, the Debtors in the above-captioned Chapter 7 Bankruptcy case. In its Order, the Court ruled that the amendment by the Legislature of Florida Statute 222...
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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. for summary judgment expunging the request for administrative payment of the Internal Revenue Service (“IRS”). The IRS’s current request seeks taxes, interest and penalties f...
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DECISION This matter comes before the Court on the motion of David J. Doyaga, Sr., (the “trustee”), the chapter 7 trustee of the estate of Emmerich Handler and Rita Handler (together with Mr. Handler, “the debtors”) to approve the stipulations of settlement with Samuel Roth (“Mr.Roth”), Agnes Roth (“Mrs.Roth”) and their son, Morris Roth (“Morris”) (collectively, “the Roths”), and the ...
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ORDER ON CONFIRMATION Confirmation in the above-captioned case came on for hearing on November 13, 2007. The Trustee had interposed objections to confirmation asserting the Debtors’ case was not filed in good faith and second, that the Debtors Plan did not satisfy the best interest of creditors’ test. The good faith objection centered around contentions that the Debtor wife had previously f...
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MEMORANDUM AND ORDER ON MOTION TO IMPOSE STAY Debtor, who has had two prior Chapter 13 cases dismissed within the past year, filed a new case on August 1, 2007. Because it is his third case within a year, no automatic stay arose upon his filing as a matter of law. Accordingly, he filed this Motion to Impose the Automatic Stay under 11 U.S.C. § 362(c)(4)(B). Upon consideration of the record, I...
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MEMORANDUM AND ORDER ON OBJECTION TO CONFIRMATION AND MOTION FOR RELIEF FROM STAY Debtors’ Chapter 13 case came for confirmation on October 29, 2007. Darby Bank & Trust (“Darby”) filed an Objection to Confirmation and a Motion for Relief from Stay. Darby asked the Court to dismiss Debtors’ case or grant stay relief because Debtors’ unsecured debt exceeds the limit of $336,900.00 estab...
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MEMORANDUM AND ORDER ON MOTIONS TO DISMISS AND FOR RELIEF FROM STAY This case began as an involuntary Chapter 11 filed on November 5, 2007. No answer was timely filed, and an Order for Relief was entered on December 5, 2007. Drawbridge Special Opportunities Fund, L.P. (“Drawbridge”), the major lender to Global Ship Systems, LLC (“Global”), seeks dismissal or relief from the automatic ...
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MEMORANDUM DECISION DENYING HSBC BANK NEVADA, NA.’S MOTION FOR SUMMARY JUDGMENT Before the Court is the motion of the Defendant, HSBC Bank Nevada, N.A. (“HSBC”), for summary judgment on all of the claims asserted by the Plaintiff, Yvette McKenzie-Gilyard (the “Plaintiff’), in this Adversary Proceeding, dated December 7, 2006 (the “Motion for Summary Judgment”). HSBC brings this Motion for Sum...
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ORDER ON MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION THIS CASE came before the Court for hearing on August 24, 2007, to consider the Motion for Preliminary and Permanent *753 Injunction filed by the Plaintiff, Robert Altman, as Chapter 7 Trustee (the Trustee). Generally, the Trustee seeks the entry of an Order enjoining Davis and Dingle Dentistry, P.A. (Davis & Dingl...
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ORDER ON PLAINTIFFS’ MOTION TO ABSTAIN THIS CASE came before the Court for hearing to consider the Plaintiffs’ Motion to Abstain. Thirteen Plaintiffs initially commenced this action by filing a Complaint against the Defendants, Alternative Debt Portfolios, LLC, and Alternative Debt Portfolios, L.P. (collectively, ADP), in the State Court in Texas. The State Court action was subsequen...
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ORDER ON PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT THIS CASE came before the Court for hearing to consider the Motion for Summary Judgment filed by the Plaintiffs, Michael Bronson, CEK, Inc., and MBC, LLC. The Plaintiffs commenced this action by filing a Complaint for Declaratory Relief against the Debtor, CHC Industries, Inc. In the Complaint, the Plaintiffs contend that an Order Gran...
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ORDER ON SUPPLEMENTAL TRUSTEE’S OBJECTION TO PROPERTY CLAIMED AS EXEMPT THIS CASE came before the Court for hearing to consider the Supplemental Objection to the Debtor’s Property Claimed as Exempt. The Supplemental Objection was filed by Lauren P. Greene, as the Chapter 7 Trustee. The primary issue presented by the Supplemental Objection is whether the Debtor, Mark A. Adams, can cla...
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MEMORANDUM DECISION ON CHAPTER 7 TRUSTEE’S REQUEST FOR DISMISSAL PURSUANT TO 11 U.S.C. § 521(i) AND GENERAL ORDER M-315 The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”) added 11 U.S.C. § 521(a)(l)(B)(iv), requiring all debtors to provide “copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the pet...
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{Nature of Proceeding : Motion for Summary Judgment} OPINION Alvin and Carol Jordan are in Chapter Seven bankruptcy. They find themselves owing considerable tax debt which has taken the form of a tax lien against virtually all of their property. Their Chapter Seven Trustee, Charles Szybist, has filed this Adversary against the United States of America (USA) asking the Court to implement t...
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ORDER ON OBJECTION TO CONFIRMATION Kevin and Sandra McDonald (the “Debtors”) have filed a Chapter 13 plan providing for, among other things, the cure and maintenance of the mortgage indebtedness on their primary residence held by National City Mortgage (“National”). Their plan has been confirmed on an interim basis subject to National’s objection. The Debtors were in default for nonp...
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ORDER DENYING AMENDED MOTIONS TO AVOID LIEN This cause came on for consideration upon the Amended Motions to Avoid Liens of Carla Garrett (Doc. # 60), Gerald Parker, Jr. and Julie Parker (Doc. # 61), Randy Garrett (Doc. # 62), Jeff McCalla and Jennifer McCalla (Doc. # 63), Laura Uhrig and David Uhrig (Doc. # 64), Tim Hart-sock and Patricia Hartsock (Doc. # 65), Randy Detillion and Cyn...
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MEMORANDUM AND ORDER ON MOTION FOR RELIEF FROM STAY FINDINGS OF FACT The Debtors filed a Chapter 7 bankruptcy case on July 6, 2007. The Debtors have previously filed several Chapter 13 and Chapter 7 cases in both the Northern District of Georgia and in this District. The most recent case prior to the current case was a Chapter 13 case filed in this District on October 4, 2006, which was d...
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ORDER Before the Court is the Chapter 7 Trustee’s Motion to Sell Free and Clear of Liens Debtor’s stock in Regional Ambulance Service, Inc. (“Regional”) to Debtor, and Objection thereto filed by Keith Stille and QZO, Inc. (collectively “QZO”). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). The Court has jurisdiction under 28 U.S.C. § 1334. For the reasons set forth below...
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*917 MEMORANDUM OPINION AND ORDER ON MOTION TO DETERMINE APPLICABILITY OF AUTOMATIC STAY O’Quinn Family Partnership (“O’Quinn”) filed this motion seeking to lift the stay of 11 U.S.C § 362 in order to proceed with state court remedies to evict the Debtor from O’Quinn’s real property; or in the alternative, seeking a determination as to whether the stay of 11 U.S.C. § 362 appl...
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