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All Reporters → br → Volume 155

Opinions in br Volume 155

ORDER GRANTING REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW (Sitting by Designation). Before the Court is the Motion of Richard Lee, Esq., attorney for the Chapter 7 Trustee, Requesting Findings of Fact and Conclusions of Law with respect to our March 15, 1993 Order awarding attorney’s fees in the amount of $61,754, rather than the $65,754 applied for Mr. Lee’s motion is GRANTED, and w...
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ORDER DISAPPROVING DISCLOSURE STATEMENT AND DENYING RELIEF FROM STAY Heard on May 5, 1993 on the Debtor’s request for approval of his disclosure statement, and Washington Trust Company’s Motion for Relief from the Automatic Stay. After hearing the testimony of Don Colbern of the Farmer’s Home Administration (FmHA), and Michael Lenihan and Kenneth Hammond on behalf of the Debtor, we find, contrar...
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MEMORANDUM OPINION This matter is before the Court on the plaintiff’s Motion for Temporary Restraining Order, filed herein on April 7, 1993. The Motion asks this Court to prohibit the defendant from barring the plaintiff from mining coal during the pendency of its application for renewal of its mining permit. The defendant filed its Response on April 12, 1993. A hearing on the Motion and Respon...
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*8MEMORANDUM OPINION By Agreed Order Submitting Case for Ruling entered March 31, 1993, this matter was submitted to the Court for ruling upon the record. The parties submitted Joint Stipulation of Facts to the Court on March 8, 1993 which appear to stipulate all of the relevant facts involved in this controversy. Sherrill L. Daulton and Elfreda Daulton (“debtors”) are residents of Nancy, Kentucky...
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MEMORANDUM DECISION This matter is before the Court as a result of the authorized sale of property of the estate by the debtors, Kallen and Janis Henderson. The Hendersons subsequently noticed their intent to distribute proceeds from the sale. The Seabreeze Condominium Owners Association (“Seabreeze”) objected to the proposed distribution. This *11 Court has jurisdiction purs...
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SUMMARY ORDER The debtors’ chapter 13 plan provides for payment for a 1991 GEO Prizm to Franklin Equity Leasing Company, Inc. (“Felco”), in the amount of $6,350.00. Felco contends the vehicle was leased, not sold, to the debtors. Felco has filed a motion to compel the debtors to adopt or reject the lease under the provisions of 11 U.S.C. § 365. A hearing was held on March 30, 1993, t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Veonna L. McCarron and Joseph P. McCárron, wife and husband, apparently happily married and living together, have each filed a chapter 7 petition in this Court. Veonna L. McCarron filed her petition first, on February 2, 1993. Joseph P. McCarron filed his chapter 7 petition on April 19, 1993. The standing trustee in both chapter 7 cases, Ford Elsaesser, has...
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ORDER This matter comes before the Court on appeal from a Bankruptcy Court’s denying Debtors’ Motion To Redeem. Upon review of the applicable law in this matter, the Court affirms the Bankruptcy Court’s decision. CASE HISTORY The Debtors filed a Chapter 13 Bankruptcy Petition on August 18, 1989. The plan was confirmed on October 30, 1990. The confirmed plan called for Chrysler Credit Co...
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MEMORANDUM OPINION These jointly administered corporate and individual chapter 11 proceedings came on for confirmation hearings on April 12, 1993 on the debtors’ second amended plans of reorganization as well as the objections thereto by the Federal Deposit Insurance Corporation (“FDIC”). Also before the Court were several interrelated in limine type motions, viz: i) debtors’ motion to disquali...
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ORDER The debtor is a limited partnership. The petition in this case was signed by Jeffrey Busch, president of the corporation that is the debtor’s sole partner. Busch is not a member of the bar of this court. A party that is a limited partnership may not be represented by a layperson, even if the layperson is a general partner. Eagle Associates v. Bank of Montreal, 926 F.2d 1305, 1309-11 (2nd C...
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MEMORANDUM OPINION This contested matter came on for a hearing before the Court on April 22, 1993 on the motion of Barbara Pidgeon (“movant”), wife of the debtor, for relief from the automatic stay pursuant to 11 U.S.C. § 362(d) as well as the debtor’s objection thereto. This is a chapter 13 proceeding. The following constitutes the Court’s findings of fact and conclusions of law in accordanc...
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DECISION AND ORDER Before the Court are the Applications for Administrative Fees and Expenses of:- (1) the Chapter 7 Trustee, Stephen S. Gray, in the amount of $108,032 and $2,480; (2) Counsel for the Trustee, William Dolan, Esq., and the firm Brown, Rudnick, Freed & Gesmer, in the amount of $36,657 and $2,992; and (3) Debtor’s counsel, Barbara Harris, Esq., in the amount of $30,231 and $...
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DECISION AND ORDER For creditors, the travel of this 11 year old bankruptcy case probably hit an all time low on May 6, 1993, at the hearing on fee applications, when assets available for distribution in the total amount of $119,860 were the subject of fee requests of $122,712. With numbers like this to deal with, we are compelled to remind our professional colleagues that “[i]t is fundam...
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DECISION DETERMINING REASONABLENESS OF COSTS AND EXPENSES Heard on April 19, 1993, on the fee application of Winograd, Shine & Zacks, attorneys for the Debtor. We allowed compensation of $49,185 for services, and took under advisement the request for expenses of $6,800. The allowability and reasonableness of expenses incurred by professionals rendering services in bankruptcy is a matter w...
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MEMORANDUM AND ORDER This is an appeal by the United States from a September 14, 1992 order of United States Bankruptcy Judge Dorothy Eisenberg dismissing an adversary proceeding brought by the United States to obtain funds now held in an escrow account. The funds represent amounts owed by the New York State Office of Mental Retardation and Developmental Disabilities (the State Offic...
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DECISION ON MOTION SEEKING AN ORDER REQUESTING HONORABLE EDWARD J. KORMAN, UNITED STATES DISTRICT JUDGE, TO WITHDRAW REFERENCE OF THIS ADVERSARY PROCEEDING This is an adversary proceeding in which the Official Committee of Unsecured Creditors (the “Committee”) is the plaintiff seeking payment of certain promissory notes (collectively, the “Notes”) allegedly executed and delivered by Nicholas Neu (...
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DECISION This matter is before the Court upon the motion of the Debtor, Lee Road Partners, Ltd. (the “Debtor”), which seeks an order pursuant to § 365(a) allowing it to reject a lease with F.W. Woolworth Co. (“Wool *57 worth”), wherein the Debtor is the lessor and Woolworth the lessee. FACTS The Debtor is the owner and operator of the Lee Road Shopping Center lo...
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MEMORANDUM DECISION AND ORDER ON DISPUTE REGARDING TURNOVER OF CONFIDENTIAL INFORMATION Fairmont Communications Corp. (“Fair-mont”) is a holding company whose assets consist of 100% of the outstanding stock of Bay Broadcasting Corporation (“Bay Broadcasting”), Ward Broadcasting Corporation (“Ward Broadcasting”), Renaissance Broadcasting Corporation (“Renaissance Broadcasting”), Southwest ...
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HEARING ON MOTION FOR SUMMARY JUDGMENT Mark Kressner, the debtor in this Chapter 7 case, has moved for summary judgment in an adversary proceeding commenced by Hilda Gore, the executrix of the estate of Bernard Gore (“Gore”), to declare the estate’s claim non-dischargeable under 11 U.S.C. §§ 523(a)(2) and (4) and to deny the debtor’s discharge under 11 U.S.C. §§ 727(a)(3), (4) and (6). Th...
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DECISION ON MOTION FOR SUMMARY JUDGMENT The State of New York (“State”) has moved for summary judgment in the adversary proceeding that it filed against Joan Kelly, the Chapter 7 debtor, to declare its claim nondischargeable under 11 U.S.C. §§ 523(a)(4) and (7). In support of its motion, the State argues that there are no material facts in dispute. The State’s claim, which is comprise...
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MEMORANDUM OF DECISION ON MOTION FOR RELIEF FROM STAY The joint motion 1 of FCIDC and Franklin Lamoille Bank for relief from stay raises an issue of first impression in our jurisdiction concerning how a nonpossessory junior lien holder perfects its lien in a deposit money account that is in the exclusive possession of a senior lien holder when possession is the only method of p...
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OPINION FGH Realty Credit Corp. (“FGH”) appeals the January 28, 1993 decision of the United States Bankruptcy Court denying relief from the automatic stay barring mortgage foreclosure in In re Newark Airport/Hotel Limited Partnership, Bankr. No. 92-25498 (WFT), 156 B.R. 444. For the following reasons, the decision of the Bankruptcy Court is affirmed. I. Background ...
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AMENDED OPINION Personal injury claimant, Greta Linder, appeals from an order of the Bankruptcy Court dated November 30, 1992, (Honorable Judith H. Wizmur, U.S.B.J.), denying her motion for additional time in which to file a proof of claim under Rules 9006(b)(1) and 3003(c)(3) of the Federal Rules of Bankruptcy Procedure. 1 Background The facts behind this appeal are...
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MEMORANDUM Motions have been filed by the parties captioned above (collectively, the “debtors”) to withdraw the reference to the Bankruptcy Court of the Eastern District of Pennsylvania (“Bankruptcy Court”) of an adversary proceeding they recently filed in the Bankruptcy Court. 1 For the following reasons, I will deny the debtors’ motions. In this District, cases or procee...
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MEMORANDUM This is an appeal from an order of the Bankruptcy Court denying the motion of J.H. Streiker & Co., Inc. (“Streiker”) for relief from the automatic stay. 1 This Court has jurisdiction pursuant to 28 U.S.C. § 158. John Hancock Mut. Life Ins. Co. v. Route 37 Business Park Associates, 987 F.2d 154, 157 (3d Cir.1993). SeSide Company,. Ltd. (“SeSide”), ...
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AMENDED MEMORANDUM OPINION This adversary proceeding comes before the court on the trustee’s Complaint to *119 Subordinate and Release Tax Lien pursuant to 11 U.S.C. § 724(b). Trial was held on September 16, 1992, and for the reasons stated in this opinion the court determines that sale of certain real property is warranted under 11 U.S.C. § 363(f)(3) and that 11 U.S.C. § 724...
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MEMORANDUM OPINION This matter comes before the Court on a complaint to determine dischargeability of a debt under §§ 523(a)(2)(A), (a)(4), (a)(6), of the Bankruptcy Code, 11 U.S.C. § 101 et seq., filed September 21, 1992. The defendants filed an answer and counterclaim on October 21,1992. This Court dismissed the defendants’ counterclaim by order entered November 3, 1992. The plaintiffs ...
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*136 MEMORANDUM OPINION This adversary proceeding comes before the court for a determination of damages incurred by plaintiff. The court previously granted summary judgment in favor of plaintiff on their complaint to determine dischargeability of debt pursuant to 11 U.S.C. § 523(a)(4) & (a)(6), see United States Fire Insurance Company and Urban Service Systems, Inc. v. ...
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MEMORANDUM OPINION AND ORDER On April 12, 1993, Morgantown Trust No. 1 (“the debtor”) filed its Chapter 11 petition in bankruptcy. During a hearing on a motion for relief from stay, the Court questioned counsel for the debtor regarding the ability of a trust to file a Chapter 11 petition in bankruptcy. Thereafter, the Court ordered counsel for the debtor to submit a memorandum of authorit...
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MEMORANDUM OPINION Debtor/plaintiff, Gary D. Smith (“Smith”), and his wife, and defendant, Woodrow W. Jones (“Jones”), and his wife purchased a 1.882 parcel of real estate in July, 1971. Smith and Jones utilized the property in their business for the next several years. On July 24, 1990, Smith executed a deed of trust against his one-half undivided interest in the property to Jones t...
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MEMORANDUM OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT Came on for hearing in the above-captioned adversary proceeding on the 20th day of January, 1993, cross-motions for summary judgment and the plaintiffs’ motion for leave to amend their complaint. Counsel for all parties submitted written briefs, appeared at the hearing, and deliver...
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OPINION The Debtors, E.C. and Phyllis Henderson, filed for relief under Chapter 7 of the Bankruptcy Code 1 on June 19, 1991. At the time of filing, the Debtors owned 131 acres in Caldwell County, Texas which is exempt under Texas law as a rural homestead. Prior to the bankruptcy filing, a state court judgment was rendered against the Debtors in favor of Lee Belknap on Octob...
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OPINION REGARDING TIME TO CURE EXECUTORY LAND CONTRACT AND APPLICABILITY OF AUTOMATIC STAY ISSUES Does the automatic stay toll the running of a land contract forfeiture judgment redemption period? Is the creditor entitled to relief from stay to take possession of real property subject to a land contract? PROCEDURAL BACKGROUND On January 6, 1993, Delex Management...
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DECISION ON ORDER GRANTING SUMMARY JUDGMENT TO THE ESTATE OF BRENDA L. BRUNTY AND DENYING SUMMARY JUDGMENT MOTION OF OHIO CASUALTY INSURANCE, CO. Before the court is plaintiffs’ motion for summary judgment pursuant to Fed. R.Civ.P. 56. The court has jurisdiction by virtue of 28 U.S.C. § 1334 and the standing order of reference in this district. This matter is a core proceeding under 28 U.S.C. §...
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*174 MEMORANDUM OPINION AND ORDER ' Appellant General Motors Acceptance Corporation (“GMAC”) brings this appeal from an order of the United States Bankruptcy Court of the Northern District of Illinois. The bankruptcy court ruled that appellee Abdon C. Garcia (“Garcia”) could avoid a judicial lien on wages that had been deducted pursuant to a valid wage deduction proceeding. After careful co...
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ORDER INTRODUCTION Defendant, Sequa Corporation (Sequa), appeals the decision of the bankruptcy court, 150 B.R. 929, which held that payments made by a debtor to a creditor conferred a benefit on an insider guarantor even though the payments did not reduce the debt to an .amount less than the guaranty. The bankruptcy court entered judgment in favor of debtor plaintiffs, Cannon Ball Industries...
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MEMORANDUM OPINION This Matter comes before the Court on the United States’ Objection to amounts set forth in the Trustee's Application for the payment of commissions and the reimbursement of expenses incurred by Capital Liquidators, Inc. (“Capital”) in the auctions conducted by Capital on behalf of Chicago Art Glass, Inc. (“Debtor”). The Court, having reviewed the memoranda of law submit...
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MEMORANDUM, OPINION AND ORDER This matter is before the court on the motion of the Successor Trustee, Philip Martino, to strike the jury demand of one of the defendants, Jay Weisman, for a jury trial in the instant adversary proceeding. For the reasons stated below, the court grants the Successor Trustee’s motion. FACTS On March 13, 1991, the Debtor, Elegant Equine, Inc....
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OPINION Before the Court is the U.S. Trustee’s Motion for Summary Judgment on its Complaint to Avoid Liens. The U.S. Trustee seeks to avoid the Defendants’ liens on certain vehicles, which liens were taken as security for their professional services to the Debtor. On January 29, 1992, the Debtor and the law firm of KEEFE GORMAN & BRENNAN, by its representative Terrence J. Anastas...
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OPINION Wayne Bernard Funneman (debtor) is one of four partners in the partnership commonly known as Funneman Farms (FF). 1 The partnership’s assets consist of real estate and a checking account containing a nominal balance. The Court has no evidence before it of the partnership’s liabilities. On December 31, 1991, debtor filed a voluntary petition under chapter 7 of the B...
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ORDER DENYING MOTION TO CONVERT THIS CAUSE is before the Court upon the debtor’s Motion to Convert filed on September 25, 1992. The debtor, a real estate broker, filed her Chapter 7 case on August 2, 1991, the schedules for which, filed on August 29, 1991, listed assets of $185,000 and debts of $160,000. Many of the real property assets were abandoned by the trustee. Discharge of the debtor w...
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MEMORANDUM OPINION JURISDICTION This Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334,151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(I), which the Court may hear and determine. PROCEDURAL BACKGROUND Robert Hannegan ...
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MEMORANDUM OPINION JURISDICTION This Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334, 151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a “core proceeding” pursuant to 28 U.S.C. §§ 157(b)(2)(A) and (E), which the Court may hear and determine. PROCEDURAL BACKGROUND ...
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MEMORANDUM OPINION This matter came before the Court on a number of motions and countermotions and objections to motions. There was the motion to dismiss or convert the Chapter 11 filed by the largest creditor (Agribank) with objections filed by the debtor to Agri-bank’s motion to dismiss or convert. There was also a motion to dismiss by the United States Trustee, plus a motion by deb...
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MEMORANDUM This memorandum contains finding of fact and conclusions of law required by Fed.Bankr.R. 7052 and Fed.R.Civ.P. 52. This is a core proceeding as defined by 28 U.S.C. § 157(b)(2)(A). Background This Chapter 13 case was filed on February 17, 1993. The case was apparently filed because the City of Omaha, pursuant to its authority by city ordinance and state law, had entered a con...
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ORDER In this adversary proceeding, the attorneys for the Unsecured Creditor’s Committee (UCC) of the estate of John B. Love, a Chapter 11 Debtor, commenced a preference action against Defendant, First Interstate Bank of Montana (FIB) 1 , to recover $175,000 paid by John Love within 90 days of the filing of the Chapter 11 bankruptcy petition. After answer, trial of the cause wa...
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MEMORANDUM OPINION This matter comes on to be heard upon the complaint filed by Larry Gene Evans (“Debtor”) to determine the dischargeability of taxes owed to the United States of America, ex rel. Internal Revenue Service (“IRS”) and to determine the extent and validity of the IRS’ lien against Debtor’s interest in his retirement plan. FINDINGS OF FACT 1. On February 13, 1992, Debtor file...
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MEMORANDUM OPINION This matter came before the Court on the complaint of the Debtor, Johnie Bryan Townsend, to determine the dischargeability of indebtedness to Sherrie Buford Townsend and her attorney, J. Jerry Pilgrim, pursuant to 11 U.S.C. § 523(a)(5). Appearing before the Court were Edward R. Tib-bets, attorney for the debtor; Gary P. Ali-dor, attorney for Sherry Buford Townsend; ...
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MEMORANDUM OPINION This matter came before the Court on the motion of the trustee, Selwyn H. Turner, Jr., for summary judgment to recover annuity payments from defendant, Ella Faye Dees, and the cross-motion of defendant, Ella Faye Dees, for summary judgment to have the same annuity payments declared exempt. Appearing before the Court were the plaintiff, Selwyn H. Turner, Jr., and his attorne...
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MEMORANDUM OPINION This matter came before the Court on the motion of the United States of America to allow setoff. Appearing before the Court were Eugene A. Seidel, Assistant U.S. Attorney, and Stephen J. Segreto, Trial Attorney for the United States Department of Justice; Travis M. Bedsole, Jr., Bankruptcy Administrator; Joseph J. Burton, Jr., Trustee for Selma Apparel Corporation, ...
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ORDER AFFIRMING FINAL JUDGMENT Appellant ITT Commercial Finance Corporation (hereinafter ITT) appeals from a decision of the United States Bankruptcy Court for the Southern District of Florida, entered by the Honorable Sidney M. Weaver, in which it was held that ITT was not entitled to setoff. See In re Aquasport, Inc., 115 B.R. 720 (Bkrtcy.S.D.Fla.1990). The Court has heard or...
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MEMORANDUM DECISION New West Federal Savings and Loan Association (“New West”) seeks an order of contempt against the Debtor, Spanish River Plaza Realty Company, Ltd. (“Spanish River”), and two of the Debtor’s principals, Harry Schreiber and Mark Izydore. The motion arises from the alleged willful violation of a cash collateral order entered by this Court shortly after the Debtor filed it...
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ORDER Before the court is plaintiff’s motion for partial summary judgment and the cross-motion for summary judgment filed by defendant McCoy Lumber Company (“McCoy”). Plaintiff seeks a determination of the validity, extent, and priority of several liens. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(E). The court will grant plaintiff’s motion for summary judgment and deny def...
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155 B.R. 263 (1993) In re Francis E. DORSEY, Debtor. FIRST NATIONAL BANK OF BAR HARBOR, Plaintiff, v. UNITED STATES of America, DEPARTMENT OF AGRICULTURE, FARMERS HOME ADMINISTRATION and Francis E. Dorsey, Defendants. Bankruptcy No. 92-10554, Adv. No. 92-1042. United States Bankruptcy Court, D. Maine. June 10, 1993. Steven E. Cope, Cope & Cope, Portland, ME, for debtor. *264 Richard Silver, R...
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MEMORANDUM OF DECISION This adversary proceeding has been submitted for decision on stipulated facts. First National Bank of Bar Harbor (“FNBBH”) and the Farmers Home Administration (“FmHA”) each claim superior rights in six FNBBH certificates of deposit in the total sum of $184,051.84.1 For the reasons set forth below, I conclude that FNBBH holds the certificates as security for two loans issued...
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MEMORANDUM I. INTRODUCTION Eight motions to dismiss arising from eight separate preference complaints commenced by Fleet National Bank and Fleet Credit Corporation (collectively “Fleet”) are before the Court. Fleet commenced the above-captioned adversary proceedings as a result of borrowing orders entered by the late Bankruptcy Judge James N. Gabriel and particularly an “Order Approv...
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MEMORANDUM I.INTRODUCTION The matters before this Court are an objection by Fleet National Bank (“Fleet”) to the Chapter 13 plan filed by Robert Baxter, Jr. (“Debtor”) and a Motion to Dismiss or in the Alternative Motion for Relief from Automatic Stay (“Motion”). On January 25, 1993, Fleet filed its Motion with respect to a note and mortgage on the Debtor’s principal residence that matured by...
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DECISION ON MOTION FOR SUMMARY JUDGMENT Plaintiffs, the law firm of Steel Hector & Davis, and the equity partners of that firm (collectively “SH & D”), filed their complaint alleging that a computer system leased to SH & D prepetition by Wang Laboratories, Inc. (“Wang”) failed to operate properly. SH & D has filed a proof of claim for its damages in the main case, Complaint, Ex...
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MEMORANDUM OPINION AND ORDER The matter for decision is whether this court has the authority to permit Plaintiff, an indigent creditor, to bring an adversary proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff seeks to file an adversary proceeding to contest the right of debtor, her ex-husband, to discharge his obligation under a divorce decree entered by t...
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DECISION AND ORDER AUTHORIZING INTERIM AND FINAL COMPENSATION, AND INTERIM DISTRIBUTION TO CREDITORS Most fee application hearings in large or notorious cases seem to involve central areas of interest about which the determination of the requested compensation is involved, i.e. benefit, complexity, undesirability, etc. See In re Casco Bay Lines, Inc., 25 B.R. 747 (Bankr.1st...
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ORDER GRANTING UTILITY’S MOTION TO TERMINATE SERVICE Before the Court is Providence Gas Company’s Motion to Terminate Service, and Debtor’s objection thereto. The facts, not in dispute, are that Movant sent a letter dated March 25, 1992 seeking adequate assurance of payment of accumulating post-petition gas services, and that the Debtor did not respond. Debtor now argues that service may not be...
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MEMORANDUM AND ORDER ON DETERMINATION OF WHETHER THE BREACH OF A COURT ORDERED STIPULATION CONSTITUTES BREACH OF THE ORDER APPROVING IT CTB Realty Ventures XIII, Inc. (“CTB”) seeks to hold the debtor, Arnold Peck, in civil contempt of this court’s October 15, 1990 order (the “Stipulated Order”) approving a stipulation (the “Stipulation”), also dated October 15, 1990, between CTB and Peck....
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The defendant, Teamsters Local 677 Health Services and Insurance Fund, moves for summary judgment based on the United States Supreme Court’s decision in District of Columbia v. Greater Washington Bd. of Trade, — U.S.-, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992) invalidating Conn.Gen.Stat.Ann. § 31-284b (West Supp. 1993) which mandated the...
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DECISION AND ORDER PRELIMINARY STATEMENT This matter comes before the Court upon a motion for summary judgment (“Motion”) by the defendant in the above-captioned adversary proceeding (“Adversary Proceeding”), and a cross-motion (“Cross-motion”) by the above-referenced plaintiffs (“Plaintiffs”, or “Creditors”). The Court has jurisdiction over the Adversary Proceeding pursuant to sections 157(b)(1)...
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Javaid I. Khan, the sole shareholder, former officer, and a creditor of this Chapter 7 debtor, has filed a motion to have the Chapter 7 trustee, Douglas W. Marky, removed from office. His affidavit accompanying the motion, sworn to in November of 1992, alleged in pertinent part: 3. Douglas W Marky as an officer of the court has defrauded the debtor as a [sic ] administrator, me as a creditor, and ...
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BACKGROUND On August 14, 1992 the debtor, Scott B. Chapin, (The “Debtor”) filed a petition initiating a Chapter 7 case. On his schedules the Debtor listed Hartford Insurance Group, Inc. (“Hartford”) as a creditor holding a New York State Supreme Court judgment against him in the amount of $20,-279.00 (the “Hartford Judgment”). The Hartford Judgment was a default judgment obtained in an action c...
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OPINION AND ORDER Plaintiffs bring this action against Defendant Delta Airlines, Inc. (“Delta”), seeking lost wages, benefits, and other monetary losses allegedly arising out of Delta’s involvement in the failed efforts to reorganize an insolvent Pan Am Corporation and its subsidiaries (“Pan Am”). The plaintiffs move under Federal Rule of Civil Procedure 23(c) for an order determining that this...
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DECISION ON MOTION FOR SUMMARY JUDGMENT Prior to confirmation of its liquidating plan of reorganization, Hooker Atlanta (7) Corporation (“Hooker”) sued one David E. Hocker, from whom it had purchased an option contract for real property, and CB Commercial Real Estate Group, Inc. (“Cold-well”), to whom, at the behest of Hocker, a broker’s commission had been paid out of an escrow accou...
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MEMORANDUM ORDER AND NOW, this 18th day of May, 1993, upon consideration of defendant’s motion for summary judgment (Document No. 5); plaintiffs’ response in opposition to defendant’s motion (Document No. 9); defendant’s reply to plaintiffs’ response (Document No. 10); the letter dated February 19, 1993, from plaintiffs’ counsel; the letter dated February 25, 1993, from defendant’s counsel; plain...
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MEMORANDUM A. INTRODUCTION The instant dispute presents a question of the proper interpretation of certain terms of the Third Amended Joint Chapter 11 Plan, confirmed on March 14, 1990 (“the Plan”), in the case of ST. MARY HOSPITAL (“the Debtor”), the proponents of which were the Debtor; ROGER B. HISER (“the Trustee”); the Committee of Unsecured Creditors (“the Committee); an...
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OPINION Introduction Before the Court is the Motion of Wheeling-Pittsburgh Steel Corporation (“WPSC”) and Monessen Southwestern Railway Company (“MSW”) (WPSC and MSW collectively, “Debtor”) for Summary Judgment on the Debtor’s objection to the United Transportation Union’s (“UTU”) Administrative Claim No. 3.1 On April 16, 1985, the Debtor filed its voluntary Petition under Chapter 11 of the Bank...
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MEMORANDUM OPINION Debtors seek pursuant to 11 U.S.C. § 522(f)(1) to avoid several judicial liens against their personal residence which are held by respondents Reed Oil Company (“Reed”), Pittsburgh National Bank (“PNB”), and Three Rivers Bank (“Three Rivers”). Debtors assert that the liens may be avoided because they impair the exemption debtors have claimed in their residence pursuant to 11 U...
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ORDER This matter is before the court on appeal from an order of the United States Bankruptcy Court for the Eastern District of North Carolina avoiding a lien pursuant to Section 522(f)(2) of the Bankruptcy Code, 147 B.R. 9. (1992). Because the court finds that the bankruptcy court correctly applied the applicable North Carolina statutes in finding that the lien may be avoided, the order below wil...
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ORDER Steven S. Silverman (“Silverman”) filed this lawsuit in New Hanover County Superior Court seeking damages based on a variety of legal claims. It was removed to this court after Silverman and his wife filed their bankruptcy petition. This case is related to Silverman’s pending bankruptcy proceeding, and this court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334. The parties ha...
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MEMORANDUM OPINION On March 7, 1991, the court held hearing on confirmation of the debtor’s chapter 11 plan. Other issues considered at the hearing included: (1) a motion by Island Brook Holding Company (“IBHC”) for temporary allowance of its claim for purposes of accepting or rejecting the plan; (2) objections to the plan filed by IBHC and the Small Business Administration (“SBA”). During ...
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MEMORANDUM OPINION General Motors Acceptance Corporation (GMAC) appeals from the bankruptcy court’s ruling that GMAC lacks standing to object to the dischargeability of a debt owed them by Michael R. Dotson and Sherry J. Dotson (the Dotsons). This Court retains jurisdiction under 28 U.S.C. § 158. FACTS The Dotsons bought a 1987 Chevrolet Corvette convertible on June 20,1989, from a Chevrolet deal...
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MEMORANDUM OPINION AND ORDER Debtor filed his petition under Chapter 13 of Title 11, United States Code on January 15, 1993. On February 16, 1993, General Motors Acceptance Corporation (hereinafter “GMAC”) filed a proof of claim for a secured claim in the amount of $7,194.00. On March 8, 1993, debtor filed an objection to the secured claim of GMAC. In support of debtor’s objection, debtor repre...
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REASONS FOR DECISION This matter comes before the Court on the complaint of the plaintiff, Taeko Tsu-kakhara Rose, to determine whether or not the debtor, Franklyn D. Rose, can discharge a state court judgment awarding her an interest in his military retirement benefits. Plaintiff alternatively seeks a determination that Mr. Rose’s discharge be denied under 11 U.S.C. § 727. This is a Core Proce...
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MEMORANDUM OF OPINION ON POSTPETITION INTEREST ON UNSECURED CLAIMS QUESTIONS PRESENTED I. Whether in a case under Chapter 7 of the Bankruptcy Code, 1 the Debtor can accrue postpetition interest expense deductions for federal income tax purposes on undisputed and resolved general unsecured (prepetition) claims. The court concludes that the Debtor cannot accrue postpetition ...
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DECISION AND ORDER DENYING TRUSTEE’S COMPLAINT AND AMENDING DECISION ON FINAL FEE APPLICATION OF SHEINFELD, MALEY & KAY CAME ON for hearing the Complaint (the “Complaint”) of John Patrick Lowe, Chapter 7 Trustee (the “Trustee”) for turnover of money, avoidance of lien and avoidance of pre-petition payments received by Sheinfeld, Maley & Kay (“SMK”), counsel for the Debtor. The Court a...
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MEMORANDUM OPINION ON RESPONSE OF UNITED STATES OF AMERICA TO APPLICATION OF DEBTOR TO EMPLOY WRIGHT KILLEN & CO. AS TECHNICAL AND INDUSTRY CONSULTANTS, NUNC PRO TUNC On April 15, 1993, the Court held a hearing on the Response of United States of *419 America (“Response”) to Application of Debtor to Employ Wright Killen & Co. as Technical and Industry Consultants, Nunc Pr...
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OPINION ON MOTION FOR REHEARING The question in this case, on rehearing, is whether gambling debts incurred by a debtor after the filing of a Chapter 7 bankruptcy case, but prior to multiple conversions of the case, should be treated as pre-petition claims and discharged. An affected creditor filed a motion alleging “cause” under section 348(b) of the Bankruptcy ...
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MEMORANDUM AND ORDER This is an appeal of a July 6, 1992, order of the bankruptcy court rejecting the collective bargaining agreements of United Food and Commercial Workers Local Union Nos. 455, 408, 540 and 1000’s (collectively, the “UFCW”) with the Debtor, AppleTree Markets, Inc. I. Mootness of the Appeal AppleTree moves to dismiss this appeal, which the UFCW timely filed on July 15, 19...
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*443 MEMORANDUM OPINION Before the Court is the Emergency Complaint for (i) Enforcement of the Automatic Stay of § 362 of the Bankruptcy Code, (ii) Contempt Against Aetna Life Insurance Company for Violating the Automatic Stay, (iii) Recovery of Damages, and (iv) Preliminary Injunction and Permanent Injunction Together With Request for Expedited Hearing filed by the debtor, F...
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CORRECTED OPINION Currently before the Court is Travelers Insurance Company’s (hereinafter “Travelers”) Motion for Rehearing. Travelers seeks to have this Court reverse its Order, entered February 19, 1993, which affirmed Bankruptcy Judge Rhodes’ confirmation of Coventry Common’s second amended plan of reorganization. For the following reasons, Travelers’ motion shall be granted. ...
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OPINION AND ORDER DISMISSING BANKRUPTCY CASE I. The debtor filed this Chapter 13 petition on September 20, 1991. On November 14, 1991, Grosse Pointe Quality Food Company, a division of Farm House Foods Corporation (“the creditor”) filed a motion to dismiss, alleging that the debtor is not eligible for relief under Chapter 13 because he is not a individual with regular income as required by 11 U...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION This case presents a difficult question of Michigan domestic relations law, namely: whether a custodial parent may offset a debt owed to the noncustodial parent against a child-support debt owed by the noncustodial parent. That the question arises in this court demonstrates that the practice of bankruptcy law is not quite as limited a ...
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ORDER Chapter 7 Debtor Norbert M. Arango appeals from an Order of February 12, 1992, by United States Bankruptcy Judge Richard Stair, Jr., denying his motion to avoid a judicial lien asserted by the Third *466National Bank in Nashville (Third National), 136 B.R. 740. For the reasons which follow, Judge Stair’s ruling is hereby AFFIRMED. Arango filed a voluntary, individual bankruptcy petition in S...
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MEMORANDUM OPINION AND ORDER Dacon Bolingbrook Associates Limited Partnership (“Dacon”) has taken two appeals from decisions of Bankruptcy Judge Eugene Wedoff: one refusing to confirm Dacon’s reorganization plan under Chapter 11 of the Bankruptcy Reform Act of 1978 (“Code”), 11 U.S.C. §§ 1101-1174, 1 and the other converting what had been a Chapter 11 reorganization into a ...
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MEMORANDUM, OPINION AND ORDER This matter is before the court on the adversary complaint of 119th & Halsted Currency Exchange, Inc. against the Debt- or, Patricia Blake-Ware. In this proceeding, Currency Exchange seeks to have its claim against the Debtor declared nondis-chargeable under § 523(a)(2)(A) of the Bankruptcy Code. Por the reasons stated below, this courts grants judgment f...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Katahn Associates, Inc. (“Katahn”) for summary judgment pursuant to Federal Rule of Civil Procedure 56, incorporated by reference in Federal Rule of Bankruptcy Procedure 7056, on its complaint to determine the dischargeability of a certain debt owed it by the debtor/defendant Robert Wien (“Wien”). Katahn’s claim is...
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MEMORANDUM OPINION Before the court is an order entered by United States Bankruptcy Judge James G. Mixon holding the Internal Revenue Service (IRS) guilty of contempt in connection with a finding that the Internal Revenue Service willfully violated the automatic stay provisions of the Bankruptcy Code. The order in question was entered on June 23, 1992. On February 5, 1993, the court r...
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MEMORANDUM ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT UNDISPUTED FACTS On August 1, 1991, two lawsuits were filed in the United States District Court for the District of Minnesota as class actions on behalf of individuals who purchased Bio-plasty stock on the open market during the period August 30, 1990 through July 30, 1991. ...
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ORDER OF DISMISSAL This adversary proceeding came on for hearing on April 21, 1993, on the defendant’s motion to dismiss. Thomas G. Wall-rich appeared for the plaintiffs and Daniel C. Beck appeared for the defendant. This court has jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157(a) and Local Rule 201. This is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2)(F). ...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This case is before the Court on a Motion to Reconsider this Court’s denial of Debtors’ Motion to Enforce Plan Terms and to Order Abandonment of Real Property. The issue before the court is whether surrender of property to a secured creditor under 11 U.S.C. § 1325(a)(5)(C) pursuant to the terms of a confirmed Chapter 13 plan compels the secured cr...
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MEMORANDUM OPINION The issue in this case is whether a creditor who repossesses and sells collateral without giving the debtor formal notice of the sale is barred by Mo.Rev.Stat. § 400.9-504(3) (Cum.Supp.1992) from filing a claim for a deficiency judgment in the debtor’s bankruptcy where the debtor had actual knowledge of the sale and was present at the sale., FACTS This is a bankruptcy c...
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MEMORANDUM OPINION Edward Dean Furlong and Linda Mae Furlong filed their petition for relief under Chapter 7 on February 24, 1993. The only problem arising from the case is the claim of the State of Missouri, Division of Family Services, against Edward D. Furlong for $9,622.59. It is the contention of the state that said sum represents “debt ... to a spouse, former spouse, or child of the d...
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MEMORANDUM I conclude that this Chapter 13 bankruptcy case should be dismissed because it was filed in bad faith. The motion to dismiss filed by the United States on behalf of the Internal Revenue Service will therefore be sustained. A Chapter 13 bankruptcy case may be dismissed if it is not filed in good faith. A court must consider the totality of the circumstances in determining whether ...
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OPINION The appellee, Howard Weitzman, filed a malicious prosecution action in state court against, inter alia, the debtor’s Chapter 7 trustee, counsel for the trustee and the chairman of the debtor’s creditors’ committee. The trustee removed the action to the bankruptcy court. Weitzman dismissed the trustee and filed a motion requesting that the bankruptcy court abstain and remand the acti...
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OPINION The Chapter 7 1 trustee brought an adversary proceeding to recover payments made by the debtor corporation to the appellant creditor which were made over 90 days, but within one year of filing bankruptcy, on an obligation guaranteed by officers of the debtor. The bankruptcy court found that the transfers were preferences and allowed recovery. AFFIRMED. I. FACTS...
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AMENDED MEMORANDUM OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 THIS MATTER comes before the Court on (1) Defendant’s Motion for Summary Judgment with Accompanying Brief filed *533 December 4, 1992, Supplemental Authority in Support thereof filed January 5, 1993, Second Supplemental Authority in Support thereof filed January 25, 1993; (2) Memorandum Brief in Op...
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MEMORANDUM OPINION This matter comes on to be heard upon the Cross-Motions for Summary Judgment filed by Donald P. Taylor (“Debtor”) and the United States of America ex rel. the Internal Revenue Service (“IRS”). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 1...
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MEMORANDUM OPINION This cause is before the Court on the Plaintiffs complaint to have an obligation of the Debtor excepted from discharge under Bankruptcy Code Section 523(a)(2)(A). Trial was held on May 19,1992. Appearing were the Debtor, Ronald A. Mahinske, the Debtor’s attorney, Drayton N. James, and the Plaintiff’s attorney, Garrick L. Stotser. This Court has jurisdiction pursuant to ...
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MEMORANDUM OPINION This matter is before the Court on a Joint Motion for Approval of Compromise filed by the Trustee, André M. Toffel, Tennessee River, Inc. (TRI), and Jeannette Hennessee, and the objection thereto filed by the Debtor, Fred L. Shoemaker, and also the Motion for Intervention filed by John W. Self, the Debtor’s attorney in an action filed in the Circuit Court of Lauder-dale...
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MEMORANDUM OPINION This proceeding is before the Court on the Debtor-In-Possession’s application to reject its collective bargaining agreement with the Birmingham Musicians’ Protective Association, Local 256-733, of the American Federation of Musicians and on the Debtor-In-Possession’s Motion for Authority to Limit Cafeteria Plan Payments. Appearing at the three-day hearing of this motion...
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MEMORANDUM OPINION AND ORDER These proceedings are before the Court on the Objection to Confirmation of the Debtors’ plan of reorganization and the Motion for Relief from Stay filed by the Resolution Trust Corporation, as conservator for Altus Federal Savings Bank. Appearing at the April 20, 1993, hearing on these proceedings were Alan B. Jaffe, attorney for the Debtors, and Christoph...
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ORDER This cause is before the Court on Michael G. O’Neill’s Motion to Withdraw the Reference of this Adversary Proceeding (Doc. # 1) filed on February 12, 1993. A. BACKGROUND On January 8, 1992, this adversarial proceeding was instituted against Defendants seeking declaratory and injunctive relief for violations of § 14(c) of the Securities Exchange Act of 1934 and Regu...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Southeast Bank, N.A. filed a complaint for turnover claiming $15,000.00 being held by the trustee, defendant Charles W. Grant. Defendant Internal Revenue Service claims the funds asserting a right of set-off provided for in § 553 of the Bankruptcy Code. This adversary proceeding is before the Court on plaintiffs motion for summary judgment. The ...
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*597MEMORANDUM ON MOTION OF PLAINTIFF FOR ISSUANCE OF ALIAS SUMMONS Sitting by Special Designation. The Court has before it the Motion of the Plaintiff for issuance of an alias summons and the Motion of the Debtor, Janet Us-atch, to dismiss this adversary proceeding made ore tenus at the trial date on March 19, 1993. The records in this case indicate that this adversary proceeding was instituted b...
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MEMORANDUM AND ORDER The Court has before it for determination the Motion of the Plaintiff, ALAN ERNEST WELCH, for Relief from an Order of Dismissal, For Enlargement of Time and Complaint to Revoke Discharge of Debtor and/or Motion To Amend Adversary Complaint to Add Claim To Revoke Discharge. This Motion was argued by the attorneys for the respective parties, and a time was fixed by the Court for...
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO DISMISS ADVERSARY COMPLAINT The Debtor filed this adversary proceeding to determine whether the Defendants, Linda Blastings and Carol Henley (the “Judgment Creditors”) hold a claim in this bankruptcy case secured by the stock in Trodglen Paving, Inc. The stock is 100% owned by the Debtor and is thus property of this estate. ...
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MEMORANDUM OF DECISION Dwight Maylin’s Chapter 13 plan is before the court for confirmation. Sherman, Sandy & Lee, his former counsel in pre-petition divorce proceedings and, presently, a judgment creditor, has objected. The plan and objection raise issues under 11 U.S.C. §§ 502 and 522, 1 under Fed. R.Bankr.P. 3006 and 4003(b) and under the law as articulated by the Suprem...
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DECISION AND ORDER Heard on the Chapter 11 Trustee’s Objection to Claim of Sumner A. Long. Long alleges that Newport Offshore, Ltd. (NOL) negligently repaired and made improper and unauthorized modifications to his yacht, breached its contract by not following specifications, otherwise violated the terms of his contract with Newport Offshore, Ltd., and that he was damaged thereby. The Trustee c...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Before the Court is the application of the Alleged Debtor Angelo Amodio for an Order directing the turnover of certain funds in the amount of $1,925 currently held in escrow and alleged to be property of his estate. The application is opposed by Adirondack Bank (“Bank”) on the ground that the Bank holds title to the funds...
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*627 AMENDED MEMORANDUM OF DECISION ON SEPARATE CLASSIFICATION OF CLAIMS (Sitting by Special Designation). The issues presented 1 relate to Debtors’ Second Amended Joint Plan of Reorganization (Plan). These issues are (1) whether workers’ compensation claims asserted by Debtors’ injured employees may be classified separately from and accorded different treatment t...
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MEMORANDUM DECISION ON PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND TO DISMISS COUNTERCLAIMS I. INTRODUCTION This adversary proceeding arises out of the application, dated March 3, 1992 (the “Application”), of The LTV Corporation, LTV Aerospace and Defense Company (“LTVAD”) and certain affiliated entities (collectively, “LTV”) for an order, pursuant to sections 105, 363 and 365 of the...
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*660 MEMORANDUM DECISION On April 6, 1987, Wingspread Corporation and its related subsidiaries filed for voluntary relief under Chapter 11 of the Bankruptcy Code. The cases were from their inception and remain to this day extraordinarily contentious. The conversion of the reorganization cases to liquidations under Chapter 7 did not abate the litigation. I likely have issued m...
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OPINION I. INTRODUCTION Before this court for resolution after trial are three adversary proceedings commenced by MORSE OPERATIONS, INC. d/b/a LAUDERHILL LEASING (“Lauder-hill”), easily the largest unsecured creditor of LEASE-A-FLEET, INC. (“the Debtor”), and UNIVERSITY CADILLAC, INC. (“UCI”), an entity related to Lauderhill which is the assignee of United Valley Bank, the De...
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OPINION A. INTRODUCTION In Nobleman v. American Savings Bank, — U.S.-,-, 113 S.Ct. 2106, 2111, 124 L.Ed.2d 228 (1993), the Supreme Court held that 11 U.S.C. § 1322(b)(2) prohibits the use of 11 U.S.C. § 506(a) to “strip down” the lien of a mortgagee to the value of the mortgaged real estate where “the lender’s claim is secured only by a lien on the debtor’s residence.”...
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MEMORANDUM OPINION The complaint brought by debtor against defendant Daniel Sakmar consists of two counts. Count I seeks to recover in excess of $170,000.00 which Daniel Sakmar allegedly borrowed from debtor prior to the filing of the bankruptcy petition and has failed to repay. Count II seeks damages *693for inventory, funds, and other estate assets which Daniel Sakmar allegedly removed from de...
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MEMORANDUM OPINION AND ORDER Before the court are the plaintiffs’ objections to two Orders entered by the Magistrate-Judge. The first Order denied plaintiffs’ motion to remand this matter to the state court where it originated or, in the alternative, for the court to abstain. The second Order granted defendants’ motion for referral and motion to transfer venue, ordering that this enti...
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DECISION ON MOTION OF UNITED STATES TRUSTEE TO DISMISS FOR SUBSTANTIAL ABUSE CAME ON for hearing the motion of the United States Trustee to dismiss this chapter 7 case for substantial abuse pursuant to 11 U.S.C. § 707(b). Upon consideration thereof, it is the ruling of the court that the motion should be granted. BACKGROUND FACTS William Fitzgerald, Jr. and Valerie Phipp...
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MEMORANDUM OPINION CONCERNING EXEMPTION FROM FILING TO PERFECT A SECURITY INTEREST IN ACCOUNTS PURSUANT TO TEX.BUS. & COM.CODE § 9.302(a)(5) On August 8, 1991, Klein Glass & Mirror, Inc., (“Debtor” or “Klein”) initiated the above-styled adversary proceeding. By its complaint, Klein Glass seeks to void and recover a transfer of property of the estate under the provisions of 11 U...
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MEMORANDUM OPINION ON MOTION TO VOID AND CANCEL NOTICES OF LIS PENDENS FILED BY CLINTON MANGES AND HELEN RUTH MANGES On this day came on for consideration the Motion of Manges Liquidating Trust to Void and Cancel Notices of Lis Pendens filed by Clinton Manges and Helen Ruth *724Manges. The Court, having heard the evidence and arguments of counsel, and having reviewed the pleadings and briefs on fi...
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*728MEMORANDUM OF OPINION AND ORDER REVERSING DECISION OF BANKRUPTCY COURT AND REMANDING CASE TO THE BANKRUPTCY COURT This is an appeal from a final judgment of the Bankruptcy Court, which held that a garnishment of the funds of the debtor, Battery One-Stop Ltd. (“Battery”) by Atari Corporation was a preference under 11 U.S.C. § 547(b) and was therefore avoidable. That Court therefore granted Batt...
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DECISION ON ORDER GRANTING JUDGMENT AGAINST CHARLES RUSSELL HALE This proceeding, which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Standing Order of Reference entered in this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I) — determinations as to the dischargeability of particular debts. Atassi v. McL...
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ORDER GRANTING MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS This matter comes before the Court on the Defendant Broughton Foods Company’s Motion for Partial Judgment on the Pleadings, filed on January 27, 1992. The Court now grants the motion for the reasons below. Broughton Foods Company (“Brough-ton”) supplied grocery products to the Debtor, a grocery wholesaler, on account. On...
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MEMORANDUM This matter is before the Court on the MOTION FOR SUMMARY JUDGMENT and MEMORANDUM IN SUPPORT OF MOTION OF [sic] SUMMARY JUDGMENT which were filed by the plaintiffs on August 4, 1992. The Court heard arguments in this matter on September 22, 1992. The plaintiffs filed a REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT on October 2, 1992. The debtor/defendant prov...
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155 B.R. 750 (1993) In the Matter of William Daniel PEDERSEN and Gayle Larae Pedersen, Debtors. C.R. HANNAN, Trustee, Plaintiff, v. PUBLIC EMPLOYEES BENEFIT SERVICES CORPORATION, PLAN ADMINISTRATOR FOR THE DEFERRED COMPENSATION PLAN FOR the CITY OF COUNCIL BLUFFS, IOWA, Defendant. Bankruptcy No. 90-99-W H, Adv. No. 91-91194. United States Bankruptcy Court, S.D. Iowa. June 16, 1993. *751 Deborah L...
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ORDER — MOTIONS FOR SUMMARY JUDGMENT Defendant’s and Plaintiff’s motions for summary judgment were taken under advisement June 11, 1992 and exhibits were received. This court has jurisdiction of this adversary proceeding pursuant to 28 U.S.C. § 1334; and this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(E). Upon review of the pleadings, arguments and *752exhibits, findings of fact and co...
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ORDER This matter came before the Court on trial to determine whether the Trustee can avoid preferential transfers from the Debt- or’s insider/guarantors. Michael Dietz appears as Chapter 7 Trustee. Dan Moulton appears on behalf of the Defendants. Based upon the files, records, evidence and testimony presented at trial, and arguments of counsel, the Court makes this Order pursuant to the Rules ...
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ORDER AND MEMORANDUM OPINION Debtor filed this action to determine the dischargeability of her Health Education Assistance Loans (HEAL loans). The issue at trial was whether nondischarge of Debt- or’s HEAL loans would be unconscionable under 42 U.S.C. § 294%) due to Debtor’s mental and emotional disabilities which impair her ability to function and to earn a living. The court has jurisdic...
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The bankruptcy court sustained an objection by the Chapter 13 trustee to the confirmation of the debtors’ Chapter 13 plan of reorganization. Although numerous issues are raised in this appeal, the sole basis for denial of confirmation by the bankruptcy court was that the plan provided for payments extending over a period longer than three years without court approval as required under § 1322(c)...
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MEMORANDUM OF DECISION The United States Trustee in this chapter 7 bankruptcy has moved to dismiss the case under section 707(b) of the Bankrupt *774 cy Code. Bruce and Katherine Williams, the debtors in this case (“debtors”), contest the motion. Section 707(b) permits a court to dismiss a chapter 7 case where: (1) the case is filed by an individual debtor; (2) the debtor’s debts are primar...
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ORDER ON MOTION OF WHATLEY RANCH JOINT VENTURE, LTD. FOR STAY PENDING APPEAL I. PRELIMINARY On June 4, 1993, this Court entered four orders, those being (1) an order granting the Debtor’s, Alfred Thielen Whatley’s (“Debtor”), objection to the claim of What-ley Ranch Joint Venture, Ltd. (“WRJV”) pursuant to which the claim filed by WRJV as an alleged creditor in this proceeding was di...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION This is a Chapter 7 case and the matter under consideration is the Amended Complaint filed by Meadowbrook Mall Company (Meadowbrook). Meadowbrook’s claim is set forth in its Amended Complaint, which contains one count based upon 11 U.S.C. 727(a)(3). Meadowbrook alleges that Michael and Joanne Vetri (Debtors) failed to keep or preserve ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation case, and the matter under consideration is the dis-chargeability vel non of the debt admittedly due and owing by Lamar S. Stokes and his wife, Joan B. Stokes (Debtors) in the amount of $10,651.88. The claim of nondis-chargeability is asserted by Sun Bank, N.A. (Bank) who contends that this obligat...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS is a yet-to-be confirmed Chapter 11 case, and the matter under consideration is a Second Amended Complaint filed by Daddy’s Money of Clearwater, Inc. (Debtor) against Robert A. Winick, Joel Aresty and Kelly Drye & Warren (Defendants). The Second Amended Complaint contains four counts: in Count I, the Debtor seeks to avoid the payment of $180,805.0...
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ORDER ON MOTION TO DISMISS THIS is a Chapter 7 liquidation case and the matter under consideration is a Motion to Dismiss this Chapter 7 case. The Motion is filed by James R. Yeskett (Yeskett), a creditor of Gregory F. Limpert (Debtor) who contends that the Debtor is ineligible for relief under the Bankruptcy Code inasmuch as he had a previous Chapter 13 case, which was dismissed within 180 days o...
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DECISION REGARDING MOTION FOR SUMMARY JUDGMENT DECLARING DEBT TO THE UNITED STATES OF AMERICA NONDIS-CHARGEABLE In this decision, the court holds nondis-chargeable under 11 U.S.C. § 523(a)(2)(A) the debtor’s debt to the government under a settlement agreement which compromised government claims arising from the debtor’s submitting false statements to obtain government mortgage insurance. ...
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MEMORANDUM ON APPLICATION FOR AUTHORITY TO EMPLOY HALE AND DORR AS COUNSEL TO THE DEBTOR I. FACTS The Debtor, Lincoln North Associates Limited Partnership (the “Debtor”), owns all of the beneficial interest in Old Bedford Road Realty Trust (the “Trust”), a Massachusetts nominee realty trust that owns an office building known as Lincoln North (the “Lincoln North property”). The genera...
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DECISION AND ORDER On remand from the appeal of our Decision and Order dated December 29, 1988, the District Court, Pettine, Senior J., directs us to: (1) recalculate damages to comport with that Court’s rulings as to foreseeability and proximate cause; (2) articulate the reasons for our denial of the Reposas’ Complaint to Determine Validity of Liens *811 held by North Atlant...
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MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT The plaintiff has moved for summary judgment in the above captioned adversary proceeding to determine that the debt it is owed by the defendant is not dischargeable under 11 U.S.C.A. § 523(a)(2)(A) (West 1993). The motion is granted because the relevant issues have been tried and determined in a hearing before a state workers...
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*819 MEMORANDUM DECISION AND ORDER James Langlois, debtor-appellant, appeals the decision of United States Bankruptcy Judge Justin J. Mahoney granting summary judgment in favor of the Internal Revenue Service (IRS). This Court has jurisdiction over the appeal under 28 U.S.C. § 158(a). Mr. Langlois presents two issues on appeal: 1. Whether the Bankruptcy Judge erred in holding that Mr. Langl...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court and considered herein is the motion by Hotel Syracuse, Inc. (“Debtor”), filed on July 30, 1992, and the cross-motion by the City of Syracuse Industrial Development Agency (“SIDA”) and Syracuse Economic Development Corporation (“SEDCO”), filed on August 4, 1992, seeking summary judgment on the is...
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DECISION This is an adversary proceeding in which the Plaintiff, Flexi-Van Leasing, Inc. (“Flexi-Van” or the “Plaintiff”) seeks to either have its claim against the Defendant, Joseph F. Perez, the debtor herein, (“Perez” or the “Debtor”) deemed nondis-chargeable or to have the Debtor’s discharge denied pursuant to 11 U.S.C. § 727(a)(2). This matter comes before the Court on the motio...
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DECISION ON DEBTOR’S MOTION TO EXPUNGE CLAIM FILED BY AN-FRANK METAL FABRICATING INDUSTRIES, INC. This contested matter comes before the Court upon the Debtor’s objection to the claim filed by Anfrank Metal Fabricating Industries, Inc. (“Creditor”) against the estate for services rendered and materials furnished as subcontractor to the Debtor pursuant to the Debtor’s general contract with...
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MEMORANDUM and ORDER Defendant moves for reconsideration of this court’s Memorandum Endorsement and Order dated November 12, 1992 which granted summary judgment in favor of plaintiff. BACKGROUND In August 1983, Craig A. Broadhead purchased a limited partnership in Logan Realty Limited Partnership. He paid $8,717 in cash and executed six promissory notes (the “notes”) in the tota...
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DECISION ON MOTION TO DISMISS INVOLUNTARY PETITION Elsa Designs, Inc. (Elsa), seeks dismissal of the involuntary petition filed against it under Chapter 7 of the Bankruptcy Code on the grounds that this court lacks jurisdiction because the petitioning creditors’ claims are the subject of a bona fide dispute. 1 The petitioning creditors *863 cross-move fo...
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DECISION ON DEFENDANTS’ MOTION TO DISMISS AND PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT In the present adversary proceeding, the Chapter 11 debtor, Lone Star Industries, Inc. (the “debtor”), contends that Compañía Naviera Perez Companc S.A.C.F.I.M.F.A. (“Perez”), Sudacia, S.A. (“Sudacia”), Inver-sora Patagónica, S.A. (“Patagónica”), and Loma Negra Compañía Industrial Argen...
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*893 MEMORANDUM AND ORDER The Reading Company (“Reading”) commenced a suit against the defendants under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.A. §§ 9601-9675 and the Pennsylvania Hazardous Sites Cleanup Act, 35 Pa.S.A. §§ 6020.101-6020.-1305. Reading seeks contribution from the defendants for their share of the $8.6 million in cle...
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MEMORANDUM AND ORDER This civil action is once again before this Court upon Motions of the Defendants, Anthony and Rose DiMarco for Judgment on the Pleadings. In accordance with the rationale set forth below, the motions are granted in part and denied in part. I. HISTORY OF THE CASE According to the factual allegations contained in the plaintiff’s complaint, in February, 1981 De...
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MEMORANDUM The debtor, Malcolm Antell, filed a motion on July 14, 1992 to vacate this court’s order of June 80, 1992 and for the imposition of sanctions against counsel for a secured creditor, Jefferson Bank. The order of June 30, 1992 had granted Jefferson Bank relief from the automatic stay by default. Jefferson Bank opposes the motion to vacate, and for sanctions; the debt- or is suppo...
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MEMORANDUM OPINION AND ORDER This is an adversary proceeding brought by two chapter 7 codebtors, Osear H. Cog-gin and Vanette B. Coggin, to avoid a lien claimed by Sears, Roebuck and Company on an air conditioner and a washer that the Coggins purchased from Sears and charged to their revolving Sears charge account. The Coggins contend that the liens are void because Sears failed to proper...
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MEMORANDUM OPINION AND ORDER The United States (“government”) appeals from a final order, 144 B.R. 38, entered by the United States Bankruptcy Court for the Eastern District of Virginia, Norfolk Division, (Hal J. Bonney, Jr., Judge) following an adversary proceeding, discharging Harderison E. Malloy’s indebtedness. for Health Education Assistance Loans (“HEAL”) under 42 U.S.C. ...
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MEMORANDUM OPINION Trial was held in this adversary proceeding April 1,1993, on the trustee’s complaint to sell residential real property owned by the debtor and his nondebtor spouse as tenants by the entirety. The trustee’s complaint seeks to sell the property to satisfy the claims of joint creditors pursuant to 11 U.S.C. § 363(h). The issue before the court concerns just one of the cond...
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MEMORANDUM OPINION Pursuant to Bankruptcy Rule 7052, the following are the Court’s Findings of Fact and Conclusions of Law in connection with the hearing held in the above-referenced adversary proceeding on March 26, 1993. This case addresses whether a state court default judgment entered as a sanction for discovery abuse is entitled to issue preclu-sive effect in a bankruptcy dischargeab...
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ORDER Upon consideration of the United States of America’s Motion to Vacate Order and to Remand, the Court finds: 1. The United States of America filed a Notice of Appeal April 25, 1988, with the United States Bankruptcy Court indicating its intention to appeal the Bankruptcy Court’s “Order Denying Motion for Relief from the Automatic Stay” which is dated March 21, 1988, 84 B.R. 74, and whi...
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MEMORANDUM OPINION The Debtor, a limited partnership, owns a single asset: an apartment building valued at $10,000,000. The building is subject to a first mortgage debt in excess of $11,-100,000; the lender elected to treat its entire claim as secured, but now seeks to withdraw that election. The Debtor has proposed a Chapter 11 plan that seeks to “cram-down” the lender’s claim, despi...
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MEMORANDUM OPINION This matter comes before the Court on the First Amended Complaint of Debtor Lawndale Steel Co., (“Lawndale”) seeking to avoid a setoff by defendant Magic Steel Co. (“Magic”), in the amount of $11,225.31. I. FACTS The relevant facts are undisputed and are contained in the parties’ stipulation of agreed facts, filed with the Court on January 25, 1993. On Decembe...
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OPINION Plaintiff, Richard E. Barber, the Chapter 7 Trustee in Bankruptcy for Ostrom-Mar-tin, Inc. (the Debtor) filed a complaint against the FIRST NATIONAL BANK OF CHILLICOTHE (BANK OF CHILLI-COTHE) and the PRINCEVILLE STATE BANK (PRINCEVILLE BANK). The Trustee alleges the following facts: That on September 3, 1991, the Debtor issued a check for $300,000.00 drawn on the Debt- or’s accoun...
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DECISION PROCEDURE This case comes before the court upon multiple motions by the holder of the first mortgage on the debtor’s real estate, First Bank, N.A. (“First Bank”). Certain motions were disposed of orally in court on January 10, 1989 (the order erroneously states that the hearing was on January 9, 1989), and by written order dated February 1, 1989. Left to be determined are it...
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ORDER The expedited hearing on the motion of AgriBank (“Movant”) for relief from the automatic stay was called at approximately 4:35 p.m. on June 25, 1993. Mark A. Bertsch, Local Counsel for the Movant appeared in person and presented oral argument on the record. John W. Fay, the Debtor, appeared in person and announced that he would defer any extensive response to this motion to his bankruptcy...
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ORDER DENYING MOTION FOR EX-PARTE HEARING THIS CAUSE is before the Court upon a document entitled “Motion for Ex-Parte Hearing” filed on June 1, 1993. Although the debtor is now represented by counsel, the motion was filed in a pro se manner on behalf of both Mrs. and Mr. Robinson. Once again, Mrs. Robinson is confused by the procedure which must be followed. First, this adversary proceeding was d...
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MEMORANDUM DECISION The matter before the Court is an 11 U.S.C. § 1307(c) motion to dismiss this bankruptcy case for “cause,” filed by Sioux Falls Attorney Scott M. Perrenoud on behalf of Terry D. Wieczorek, Guardian of the Estate of Oriole Kjellsen [hereinafter “Movant”], and resisted by Huron, South Dakota, Attorney John B. Wehde on behalf of Debtor and Debtor’s daughter, Shirley Wo...
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