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All Reporters → br → Volume 167

Opinions in br Volume 167

MEMORANDUM OF DECISION AND ORDER ON APPELLANTS’ MOTION TO DISMISS APPEAL AS MOOT On April 9, 1992, Big & Tall of America, Inc. (“Big”) and its wholly owned subsidiary, Big & Tall Shoppes of America, Inc. (“Shoppes”),1 filed voluntary petitions for relief under 11 U.S.C. §§ 101 et seq. in the bankruptcy court. Den Norske Bank A/S (the “Bank”), which had issued letters of credit to help secure Big’...
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MEMORANDUM OF DECISION ON ORDER REQUIRING PAYMENT OF POST-PETITION TAXES On March 18, 1994, we issued an Order requiring the Debtor to pay all outstanding post-petition taxes on nonresidential leases within twenty-one days, failing which such leases would be deemed rejected. Said Order was made in response to the motions of several lessors seeking the payment of post-petition lease ob...
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DECISION, ORDER AND JUDGMENT PRELIMINARY STATEMENT Before the Court are two motions for summary judgment, one filed by the debtor, DAVID STEVEN BERG (“Debtor”), and one by plaintiff, SARA BLAUSTEIN (“Plaintiff’). The issue at bar is whether a debt owed by Debtor to his former spouse, Plaintiff, is nondischargeable as being in the nature of support, maintenance or alimony. For th...
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OPINION AND ORDER This is a declaratory judgment action. Defendant Don L. Horwitz (the “Trustee”), trustee for the liquidation of Donald Sheldon & Co., Inc. (“DSCO” or the “Debtor”), previously commenced an adversary proceeding in bankruptcy court against Donald T. Sheldon, DSCO’s former President and Chairman, and others, alleging that they were responsible for losses in excess of $1...
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MEMORANDUM DECISION DENYING MOTION TO REOPEN NO ASSET CHAPTER 7 CASE The Cadle Company (“Cadle”) seeks an order pursuant to § 350(b) of the Bankruptcy Code (“Code”) reopening this no asset chapter 7 case. Cadle’s goal is to file an adversary proceeding pursuant to § 523(a)(2)(B) of the Code and Bankruptcy Rule 4007 to determine the dischargeability of its claim. Alternatively, it seeks le...
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MEMORANDUM DECISION DETERMINING NON-DISCHARGE-ABILITY OF DEBT The defendants, husband and wife, filed a voluntary joint petition under Chapter 7 on April 30, 1993. On July 21, 1993, the plaintiff, Navistar Financial Corporation (“Navis-tar”), filed this adversary proceeding against the Debtors, objecting to their discharge under Section 727 of the Bankruptcy Code, and seeking a determination of...
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MEMORANDUM AND ORDER This case was brought before the Court via appeal of the Abraham Zion Corporation from the July 7, 1993 Memorandum and Order issued by United States Bankruptcy Judge David A. Scholl granting the Motion for Summary Judgment of the debtor, After Six, Inc. and directing CoreStates Bank to immediately pay to After Six, Inc. some $500,000 in escrow funds which it (and ...
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MEMORANDUM I. Factual and Procedural History This case is before the court on a Motion to Appeal an Order by United States Bankruptcy Judge David A. Scholl entered on May 28,1998 permanently enjoining Mr. Willis from assisting debtors in the filing of bankruptcy petitions and the collection of fees for performing such service. Charles A. Willis d/b/a “C.A. Willis Services” (“app...
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MEMORANDUM OPINION I. Introduction Debtors Ivan and Lois Berringer filed a voluntary bankruptcy petition pursuant to Chapter 7 of the Bankruptcy Code on February 4,1988. See 11 U.S.C. § 101 et seq. The bankruptcy court appointed James Huff, Esq. as bankruptcy trustee. See 11 U.S.C. §§ 701, 702(d). Shortly thereafter, on September 12, 1988,...
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MEMORANDUM OPINION This case is before the court on the motion of Defendant ITM, Ltd. South (“ITM”) for summary judgment. 1 On November 23, 1993, this court ordered the action stayed pending resolution by the Interstate Commerce Commission (“ICC”) of the reasonableness of TSC Express Company’s (“TSC”) filed shipping rates. 2 Shortly after this court stayed the litigation, on December 3, 199...
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MEMORANDUM OPINION On consideration before the court in each of the above captioned bankruptcy cases are objections by the Office of the U.S. Trustee to certain exemptions claimed by the debtors; responses to said objections having been filed by the debtors; memoranda of law having been submitted by the parties; and the court having considered same, hereby finds as follows, to-wit: ...
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OPINION On consideration before the court is a motion for summary judgment filed by the plaintiff, A.G. Edwards and Sons, Inc.; response to said motion having been filed by the debtor, James H. Sams; and the court having considered same, hereby finds as follows, to-wit: I. This court has jurisdiction of the subject matter of and the parties to this adversary proceeding pursuant to 28 U.S.C. § 1...
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OPINION On consideration before the court is the motion for summary judgment filed by the plaintiff, U.S.A./FmHA; response to said motion having been filed by the defendant, Indi- *79 Bel, Inc.; and the court having considered same, hereby finds as follows, to-wit: I. This court has jurisdiction of the subject matter of and the parties to this adversary proceeding pursuant to 28 U.S.C. ...
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MEMORANDUM OPINION PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The Court held a hearing on Plaintiffs Motion for Summary Judgment on March 23, 1994. The Court has considered pleadings of the parties, the competent summary judgment evidence, the argument of counsel, and the legal authorities cited to the Court by the parties. Based thereon, the Court enters this Memorandum Opinion as a sta...
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MEMORANDUM OPINION This matter is before the Court on cross Motions for Summary Judgment. The issue to be resolved herein is whether criminal restitution payments are avoidable as preferential transfers pursuant to 11 U.S.C. § 547(b). This Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(b); it is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(F). The parties have entered ...
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MEMORANDUM OPINION This matter is before the Court on the plaintiffs Motion for Summary Judgment filed herein on March 2, 1994. The defendant has filed a Response. The issue to be decided herein is whether a judgment debt owed by the defendant to the plaintiff is excepted from discharge pursuant to 11 U.S.C. § 523(a)(6). In this regard, the Motion for Summary Judgment raises the issue of whet...
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MEMORANDUM OF DECISION Before the court is a motion for summary judgment filed on December 10, 1993, by the plaintiff Mark E. Tulin (Tulin). The defendant, George R. Recck (Recck), had not obtained counsel at that time. Recck did secure the assistance of counsel who was granted leave until February 24, 1994, to file necessary papers. On February 22, 1994, Recck, through counsel, responded...
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OPINION AND ORDER ON MOTION TO REDEEM Before the Court is a motion filed by Scott and Judy Stoddard (“Debtors”) seeking to redeem certain property subject to a security interest in favor of Star Bank pursuant to 11 U.S.C. § 722. Star Bank opposes the motion. The parties have stipulated the operative facts and the matter is before the Court on a question of law. The Court has jurisdiction in...
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ORDER ON OBJECTION TO FEES FOR PERIOD SEPTEMBER 1, 1993 — DECEMBER 31, 1993 In connection with the quarterly review by the court of fee applications by professionals in these consolidated Chapter 11 cases, the official Injury Claimants Committee (“ICC”) filed a limited objection to the fee applications of Marcus Montgomery Wolfson & Bur-ten (“MMWB”) and Pacholder Associates, Inc. (“Pachol...
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OPINION AND ORDER ON CONFIRMATION OF PLAN This matter is before the Court upon the debtor’s request for confirmation of her chapter 13 plan and the Court’s duty to find that all requirements for confirmation have been met. 11 U.S.C. § 1325(a). The issue specifically before the Court at this time is whether the debtor’s plan, as proposed, meets the test imposed by § 1325(a)(4). An...
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MEMORANDUM OPINION AND ORDER John A. Betts, an Illinois attorney, was once suspended from the practice of law for six months and later ordered to pay the costs of his disciplinary proceedings. Without paying those costs, Betts filed a petition for bankruptcy. The ARDC filed an adversary petition to determine the dischargeability of the costs. The bankruptcy court found that those costs were not...
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OPINION AND ORDER Before the court is the motion of defendants-counterclaimants DataCard Corporation, DBS, Inc., and Addressograph Farring-ton, Inc. (“DataCard”) for an Order striking the defense based on § 502(e) of the United States Bankruptcy Code, 11 U.S.C. § 502(e), asserted by AM International, Inc. (“AMI”) in its post trial brief at Pages 13-14. Defendants-counterclaimants base...
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MEMORANDUM OPINION The following matters come before the Court: the motion of John F. Dornik (“Dor-nik”) to lift the automatic stay and for other relief including sanctions against John A. Maurice, (the “Debtor”), and his attorney Kenneth Kozel (“Kozel”); the motion of Craig Phelps, the Chapter 13 standing trustee (the “Trustee”) to dismiss the Debtor’s Chapter 13 case; the Debtor’s m...
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MEMORANDUM OPINION This matter comes before the Court on the motion of John A. Maurice (the “Debtor”) to stay an order pending appeal. For the reasons set forth herein, the Court hereby denies the motion. I. JURISDICTION AND PROCEDURE The Court has jurisdiction to entertain this motion under 28 U.S.C. § 1334 and Local General Rule 2.33(A) of the United States District Court for the Nort...
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*141 MEMORANDUM DECISION This matter comes before the Court on the Debtor’s Motion to Enforce the Automatic Stay of Proceedings by Rule to Show Cause and the United States Motion for Relief from the Automatic Stay. After reviewing the papers, the relevant case law, and taking into consideration the arguments of counsel, the Court grants the request of the United States for relief...
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ORDER This matter is before the court on the Debtors’ Appeal from the Bankruptcy Court’s dismissal of their Chapter 13 Bankruptcy proceeding. For the reasons set forth below, the order of the Bankruptcy Court is affirmed, as modified. The Debtors filed their Chapter 13 proceeding on February 3, 1993. Listed on their petition, to be paid to creditors under the plan, was the “non-exempt” port...
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MEMORANDUM OPINION This is an adversary proceeding to determine the dischargeability of certain student loans incurred by debtors between 1981 and 1986. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons set forth below, I find that the debts due from Jon C. Wardlow to defendan...
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MEMORANDUM OPINION This adversary proceeding was filed to determine the dischargeability of debtor’s obligation arising out of an automobile accident which occurred prior to the bankruptcy filing. Plaintiffs obtained a judgment against defendanl/debtor (“debtor”) subsequent to the bankruptcy filing. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). The Court has jurisdic...
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MEMORANDUM OPINION Plaintiffs in this adversary proceeding claim that debtor/defendants (“debtors”) converted and embezzled cattle and proceeds belonging to plaintiffs, and obtained such cattle from plaintiffs by false pretenses and misrepresentations. Therefore, plaintiffs ask that debtors’ obligation to them be excepted from discharge in this Chapter 7 bankruptcy case. This is a cor...
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ORDER DENYING MOTION TO QUASH SUBPOENA This matter comes before the Court on the motion of Richard N. Gowdy, Ph.D. (Dr. Gowdy) to Quash Subpoena. The Court held a hearing on shortened notice on March 30, 1994. The Court heard statements of counsel and legal arguments at that time. Having duly considered the positions of the parties, the Court makes the following Findings of Fact and Conclusions...
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MEMORANDUM OPINION On December 6, 1993, the Exchange National Bank of Jefferson City (the Bank) filed this adversary proceeding against the Debt- or, A.J. Rackers, Inc., and its statutory trustees to “Determine the Validity of Security Interest.” A trial was set and held on March 30,1994 at which time the Court heard statements of counsel, evidence from witnesses, *170 and legal arguments. ...
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OPINION The Unsecured Creditor’s Committee (the Committee) filed an objection to NSB Film Corporation’s (the Debtor) motion to use cash collateral pursuant to a stipulation entered into with certain secured creditors. The bankruptcy court entered a conditional order approving the Debtor’s motion. The Committee appeals. We DISMISS. STATEMENT OF FACTS On September 24, 1992, an...
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OPINION The debtor appeals a money judgment and judgment of nondischargeability for $22,567 in credit card debt. The court determined the debt to be nondischargeable after considering the factors enumerated in the BAP case In re Dougherty, 84 B.R. 653 (9th Cir. BAP 1988). Debtor contends that Dougherty misconstrues 11 U.S.C. § 523(a)(2)(A) 1 basi...
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OPINION Alfred and Ruth Nadel, creditors with a judgment hen against the debtor’s home, filed an objection to the debtor’s claim of homestead exemption. The bankruptcy court determined that the debtor was entitled to a homestead exemption in the amount available when the Nadéis’ lien attached to the property. The Nadéis appeal. We AFFIRM in part and VACATE in part the bankruptcy court’s d...
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ORDER RE: (1) MOTION TO DISMISS FOR LACK OF CORPORATE AUTHORITY; (2) MOTION TO ABSTAIN PURSUANT TO 11 U.S.C. § 305; (3) MOTION TO EXCUSE COMPLIANCE WITH 11 U.S.C. § 543 I.INTRODUCTION. Greyhound Financial Corporation (“Greyhound”) has filed three motions, each aimed, to a greater or lesser degree, at the right of the Debtor, Uno Broadcasting Corporation (“Debtor”), to maintain th...
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OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT I. FACTUAL AND PROCEDURAL BACKGROUND The following facts are not disputed. Plaintiff Arline Miller and Defendant Lionel Walpin were married on June 30, 1957 and thereafter lived together as husband and wife until January, 1991. Plaintiff Miller filed for divorce. The California Superior Court entered its order dissolving the marital statu...
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OPINION Appellant Jeffrey Christensen appeals the November 1, 1993 order of the Bankruptcy Court denying his motion for sanctions against Respondent Oregon Construction Contractors Board 1 and denying his contention that Respondent’s Final Order in claim No. 71836-103 is void. I have jurisdiction pursuant to 28 U.S.C. § 158(a) and Bankruptcy Rules 8002(a) and 9006(a). The decis...
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MEMORANDUM DECISION ON APPEAL Appellant Gregory Lalan appeals the bankruptcy court’s decision in an adversary proceeding filed by Christine Jobin, trustee for M & L Business Machine Co., Inc. (“Trustee”), under 11 U.S.C. §§ 544, 547 and 548 for the recovery of estate property. La-lan argues that the bankruptcy court erred in (1) denying his motion to dismiss for lack of subject matter jur...
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*225 MEMORANDUM OF DECISION DENYING DEBTORS’ APPLICATIONS TO AVOID LIEN AND GRANTING PLAINS STATE BANK RELIEF FROM THE AUTOMATIC STAY The above referenced cases are before the Court on Plains State Bank’s motion for relief from automatic stay, objection to debtors’ claims of exemptions, and debtors’ applications to avoid the lien of Plains State Bank. FACTS The facts of this case are ...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the Motion For Relief From the Automatic Stay filed by State Street Bank and Trust Company (“Bank”) on February 11, 1994. Hearings were held on March 14, 1994, and April 7, 1994, at which time the Court took the matter under advisement. Fernando M. Egea (“Debtor”) appeared in person and by and through his attorney, Wi...
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*234 ORDER ON FIRST APPLICATION FOR COMPENSATION FOR ATTORNEY FOR THE DEBTORS This matter came before this Court on First Application for Compensation for Attorney for the Debtors filed by Behles-Gid-dens, P.A. on July 1,1993 (the “Application”), Response thereto filed on July 7,1993 by the Chapter 7 Trustee, Amended Response filed on September 7, 1993 by the Chapter 7 Truste...
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MEMORANDUM OF DECISION AND ORDER DENYING MOTION FOR NEW TRIAL The issue is whether a bankruptcy court may enlarge the time for a trustee 1 to as *238 sume or reject unexpired leases of nonresidential real property when the motion for enlargement of time is made within the stab: utorily prescribed 60 day period, but no order granting it is entered within that pe...
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MEMORANDUM OPINION Procedural History On May 13, 1993, Lavell Stacy filed a voluntary petition for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Northern District of Alabama. Appellee, Ira Phillips, Inc., which held a mortgage on real estate owned by the debtor, on May 19, 1993, filed a motion for relief from the automatic stay, seeking permission to foreclo...
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ORDER This matter having come on for hearing upon plaintiffs complaint to determine dis-chargeability of debt versus the United States; due notice of said hearing having been given; the debtor having appeared with his attorney, John Kroutter, and Carol Koeh-ler Ide having appeared for the United States; and testimony having been given and the matter having been taken under submission, the Cou...
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ORDER ON ORDER TO SHOW CAUSE RE: CONTEMPT THE MATTER under consideration is a Request for Order to Show Cause filed by V. John Brook, Jr., (Trustee) who sought the issuance of an Order to Show Cause directing William and Elizabeth Pugh (Debtors) to show cause, if they have any, why they should not be held in contempt for not turning over certain assets claimed to be properties of the esta...
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167 B.R. 254 (1994) In re Kenneth R. MACKS, Debtor. Kenneth R. MACKS, Plaintiff, v. UNITED STATES of America, Defendant. Bankruptcy No. 92-5184-BKC-3P7. Adv. No. 93-393. United States Bankruptcy Court, M.D. Florida, Jacksonville Division. April 12, 1994. *255 A.B. Phillips, Washington, DC, for defendant. Robert Aguilar, Orange Park, FL, for debtor/plaintiff. MEMORANDUM OPINION GEORGE L. PROCTOR,...
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MEMORANDUM OPINION THIS ADVERSARY PROCEEDING is before the Court on Complaint seeking a determination of the dischargeability of certain federal income tax obligations. The answer alleges that 11 U.S.C. § 523(a)(1)(C) excepts the liabilities from discharge. The defendant has moved for summary judgment. The plaintiff responded to the Motion and the Court held a hearing on March 9, 1994. The Cour...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This ease came before the Court upon the Motion to Dismiss filed by the United States of America Internal Revenue Service (“IRS”). On January 25, 1994, the Court held a hearing on the motion and upon the argument of counsel and post-hearing submissions, the Court enters these findings of fact and conclusions of law. Findings of Fact This case was filed o...
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MEMORANDUM DECISION This cause came before this Court for trial on January 18, 19 and 20, 1994. The Court having reviewed the testimonial and documentary evidence, and having had the opportunity to observe the demeanor and candor of the witnesses at the trial, makes the following findings of fact and conclusions of law in accordance with Federal Rules of Bankruptcy Procedure 7052. ...
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DECISION AND ORDER DENYING APPLICATION OF DEBTOR’S COUNSEL FOR COMPENSATION The Chapter 11 Trustee and the United States Trustee object to the fee application of the attorney representing the Chapter 11 debtor in possession in this ease on several grounds, the most serious of which question that attorney’s integrity and professionalism. Regrettably, part of their objection is meritori...
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*308 MEMORANDUM OPINION This matter comes before the Court on Motion For Relief From Stay filed by Gosh-en Realty, through its agent, Bristol Properties Corporation, (“Movant”), a creditor in this Chapter 11 case. This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(G). Based on the evidence presented and arguments of counsel, the Court will grant the Motion for Relief fro...
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DECISION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS COMPLAINT FOR LACK OF PERSONAL JURISDICTION [AND FOR LACK OF PROPER SERVICE] This court addresses the motion by the defendant, Ed. Zueblin, AG (“Zueblin”), to dismiss the plaintiff’s complaint filed in the above captioned adversary proceeding for lack of personal jurisdiction and for lack of proper service. For ...
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MEMORANDUM DECISION This case was commenced as a voluntary Chapter 7 on September 2, 1988 in the United States Bankruptcy Court for the Northern District of Illinois. The Illinois Bankruptcy Court established a bar date of January 19, 1989 for the filing of proofs of claim. Thereafter the case was transferred to the District of Massachusetts. By order dated February 3,1989, this Court affirmed ...
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DECISION REGARDING PLAINTIFF’S COMPLAINTS FOR DECLARATORY JUDGMENT Edward G. LeRoux, Jr. (LeRoux) and Albert F. Curran, Sr. (Curran) are debtors in separate cases before this Court. Before the Court are complaints filed by plaintiff, Summit Investment and Development Corporation (“Summit”), against each debtor seeking injunctive and declaratory relief to remove the defendants as gener...
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DECISION ON MOTION AUTHORIZING DEBTOR TO EMPLOY COUNSEL, NUNC PRO TUNC Debtor filed this case under Chapter 11 on December 23, 1992. He paid a retainer of $7,500.00 to Jason Rosenberg, Esq. (“Rosenberg”) in connection with legal services in that regard. Rosenberg did not seek permission to be employed as required by 11 U.S.C. § 327 and Local Rule 31 until May 18, 1994. He asks that he be reta...
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DECISION AND ORDER Heard on the Debtor’s motion to adjudge the Rhode Island Department of Transportation, Division of Motor Vehicles, in contempt, and also for the imposition of sanctions for its intentional and/or willful violation of the automatic stay. The legal issue presented is whether the automatic stay provided by 11 U.S.C. § 362(a)(1) prevents the State of Rhode Island from enforcing...
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ORDER DETERMINING RECEIPTS AND RECEIVABLES TO BE PERSONALTY, AND NOT RENTS Heard on April 25, 1994, on the Debtor’s emergency motion for the use of cash collateral, or in the alternative, for a finding that *327the Debtor’s occupancy income is not rents covered by Rhode Island Hospital Trust Na: tional Bank’s (“the Bank”) security interest. At issue is whether said receipts are personalty, and t...
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DECISION AND ORDER Heard on January 12, 1994, on the Debt- or’s complaint against Jacob Portnoy, Esq., for violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. At the conclusion of the hearing, we asked the parties to submit post-trial memoranda, and they complied with our request. Upon consideration of the entire record and the submissions of the parties, we find that t...
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DECISION, ORDER AND JUDGMENT PRELIMINARY STATEMENT Before the Court 1 are dispositive motions by both parties; Plaintiff has moved for summary judgment and Debtor has moved for dismissal of the Adversary Proceeding. *332 Plaintiff commenced the within Adversary-Proceeding by the filing of a complaint with the Court on November 14, 1991. Pursuant to the Advers...
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DECISION ON MOTIONS FOR SUMMARY JUDGMENT DECISION In this adversary proceeding, the Plaintiff-Debtor, Rene Garcia (the “Debtor”), seeks to have this Court determine null and void, a second note and mortgage executed by him, and held by Miriam Valdes (‘Waldes”), on property previously owned by the Debtor located at 90-10 Elmhurst Avenue, Jackson Heights, New York. This matter comes before this C...
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CORRECTED TEXT OF BENCH RULING DELIVERED JANUARY 27, 1994 DENYING MOTION TO DEEM BALLOTS TIMELY RECEIVED American Credit Indemnity Company (“ACI”) has moved to have its ballots, which were received five days after the ballot deadline, deemed timely received, notwithstanding that distribution has commenced under the debtors’ confirmed plan of reorganization. I. Commendably, neith...
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MEMORANDUM OPINION This is the court’s resolution of an order to show cause why sanctions should not be imposed on Brian Quentzel, Esq. under Federal Rule of Bankruptcy Procedure 9011 (“Rule 9011”) for misrepresentations and omissions of fact in a complaint, certification, and brief in this adversary proceeding. This matter arises from the petition of Charles and Mary Kouterick filed ...
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MEMORANDUM ORDER Presently before the Court is the appeal of Raymond E. Silk, M.D. from the Oct. 23, 1993 Order/Judgment of the Bankruptcy Court which entered judgment in favor of the Trustee and against Silk in the amount of approximately $1.5 million. This Court has *369 jurisdiction pursuant to 28 U.S.C. § 158. 1 For the reasons which follow, I will affirm the Order of the Bankruptcy C...
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OPINION A INTRODUCTION Presently before this court are several matters arising in the Chapter 13 bankruptcy case of DENISE J. GELLETICH (“the Debtor”), including an adversary proceeding (“the Proceeding”) filed by the Debtor and her husband, RONALD L. GELLETICH (“the Husband,” and with the Debtor, “the Plaintiffs”) 1 against HOUSEHOLD REALTY CORP. (“Household”). In...
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OPINION Before the Court is the Motion of ERM Partnership to Strike Ballot pursuant to 11 U.S.C. § 1126(e) and for Related Relief (the “Motion”). ERM Partnership (“ERM”) is a New Jersey general partnership and a secured creditor in the chapter 11 bankruptcy case of Holly Knoll Partnership 1 (“Debtor”). In the Motion, ERM asserts several reasons why the ballot of E.W. Real E...
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MEMORANDUM OPINION GRANTING MOTIONS FOR SUMMARY JUDGMENT AND DISMISSING COMPLAINT While the debtor’s Chapter 11 bankruptcy case was pending in this Court, the nondebt- or plaintiffs filed the instant “Complaint and Prayer for Jury Trial” in the state court against the nondebtor defendants (the debt- or’s attorney, its president and secured creditor) for alleged acts and omissions that...
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ORDER This matter is currently before the court on the defendant’s motion for summary judgment in this adversary proceeding by the trustee to avoid an allegedly preferential payment to the defendant. The court heard argument from counsel on February 25, 1994. For the reasons set forth below, the defendant’s motion for summary judgment is denied. Summary judgment is appropriate “if th...
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ORDER AND REASONS The motions which remain pending following this Court’s Order of December 8, 1993 are: ORBI’s motion to recognize claim, ORBI’s motion for stay of proceedings, GECC’s motion to recognize claim, H & A’s motion to stay proceedings, and Elmwood’s motion to lift automatic stay. For the reasons stated below, ORBI’s and H & A’s motions to stay proceedings are GRANTED; ORBI’s and GEC...
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MEMORANDUM OPINION This is an appeal by Michael Chiasson, the Trustee, of the Bankruptcy Court’s Ruling lifting the automatic stay to enable creditor Gloria Baham to proceed to trial and judgment in a medical malpractice action against David Mark Metzner, M.D., the Debtor, and allowing her to seek to execute on any judgment $100,000 or more. Appellee Gloria Ba- *415 ham requests that the Ba...
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MEMORANDUM OPINION These cases came on for hearing upon the motions for abandonment of collateral and relief from the automatic stay filed by Green Tree Acceptance of Mississippi, Inc. in each of the above referenced cases. After notice and a hearing, the Court has considered the evidence presented at trial along with arguments of counsel, and being otherwise fully advised in the prem...
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ORDER Five separate motions for summary judgment have been filed with the Court and are being considered together. This controversy arises from a lawsuit filed against two bank officials (Michael L. McMullan and James R. Borgstrom) and the bank’s attorney (Kathleen A. Hurren). Each of these Defendants has filed a motion for summary judgment. In addition, the Federal Deposit Insurance ...
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DECISION AND ORDER ON TRUSTEES’ MOTION FOR DETERMINATION OF TAX LIABILITY CAME ON for consideration the chapter 7 trustee’s Motion for Determination of Tax Liability for the Period January 1, 1992 through December 31,1992. After consideration of the parties’ memoranda and oral argument, and the relevant authorities, the court concludes that a joint filing under section 302 of the Bankrupt...
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DECISION AND ORDER REGARDING JURY DEMAND CAME ON for consideration the foregoing matter. The court agrees with defen*447dants that the fraudulent conveyance, preference, and post-petition transfer actions asserted by the trustee are essentially core in nature, and that the defendants, under Granfinanciera, N.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), are entitled to a j...
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OPINION AND ORDER DENYING AMENDED APPLICATION FOR ORDER AUTHORIZING EMPLOYMENT OF CONRAD J. MORGEN-STERN & ASSOCIATES, INC. AS FINANCIAL ADVISOR This matter is before the Court on the Genlime Group, L.P.’s (the “Debtor”) amended and restated application for order authorizing employment of Conrad J. Morgenstern & Associates, Inc. (“CMA”) as financial ad-visor and the United States Trustee’s (“UST”...
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OPINION AND ORDER DENYING MOTION FOR ORDER AUTHORIZING AND ESTABLISHING PROCEDURES FOR INTERIM PAYMENTS TO PROFESSIONALS This matter is before the Court on Gen-lime Group, L.P.’s (the “Debtor”) motion for order authorizing and establishing procedures for interim payments to professionals and the United States Trustee’s (“UST”) objections thereto. The Court finds that the Debtor’s motion i...
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MEMORANDUM OF OPINION AND ORDER In this proceeding, the liquidating trustee Saul Eisen (Trustee) filed his Complaint To Recover Voidable Preference. Defendant Harold Freeman Company (Freeman) filed its Motion To Dismiss for failure to state a claim upon which relief could be granted. Upon a hearing of the motion, the following constitutes the Court’s findings of fact and conclusions of law: The ...
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OPINION AND ORDER ON OBJECTION TO CLAIM # 155A (RUSSELL SIMMONS) Larry E. Staats, the duly-appointed trustee of the bankruptcy estate of debtor, Correct Manufacturing Corporation, (“Correct”) has objected to the allowance of claim # 155A, filed on behalf of Russell Simmons. Simmons opposed the objection in writing, *459 but did not appear at the hearing held Oc...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION TO TRANSFER TO COURT OF FEDERAL CLAIMS This adversary action was initiated by Debtor, Plum Run Service Corp. (“Debtor” or “Plum Run”) against the United States of America, Department of Navy (“Navy”). The matter before the Court is the Navy’s Motion to Transfer this adversary action, pursuant to 28 U.S.C. § 1631 to the United States Co...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON OBJECTION TO CLAIM OF EXEMPT PROPERTY The matter before the Court is the Objection to Claim of Exempt Property filed by the Chapter 7 Trustee herein, relating to the Debtor’s interest in the cash surrender value of a life insurance policy. The matter was originally scheduled for hearing on January 10, 1994, however, at the request of the parties, the...
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OPINION AND ORDER ON OBJECTION TO CONFIRMATION OF CHAPTER 11 PLAN Before the Court is an objection to the requested confirmation of a Substitute Plan of Reorganization, Replacement Modification and Second Modification to the Substitute Plan (collectively “Plan”), as collected and restated on April 18, 1994, proposed jointly by chapter 11 debtor Rivers End Apartments, Ltd. (“Rivers End...
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MEMORANDUM OPINION AND ORDER This is an action for freight undercharges brought by the Plaintiff, Jones Truck Lines, *491 Inc. (“Jones”), a carrier, against Grinnell Corporation Anvil Products Division (“Grin-nell”), a shipper. Jones seeks to recover $9,047.50 in freight undercharges under the “filed rate doctrine.” Before the Court is Grinnell’s Motion for a Stay of Proceedings and a Refer...
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MEMORANDUM OF OPINION This adversary proceeding arises in the context of three administratively consolidated Chapter 11 cases.; it presents a question of the ownership of money. The debtors were, among other things, middlemen in the 900 number telephone business. They arranged for telephone programs created by “information providers” to be transmitted to local telephone companies, whose c...
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MEMORANDUM OPINION This matter comes before the Court on Plaintiff’s Amended Complaint alleging breach of fiduciary duty, actual and constructive fraud, tortious interference with valid business relations and waste of corporate assets, and Defendant’s counterclaim for the recovery of wages and personal property. The Court has core jurisdiction over the Amended Complaint and non-core j...
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MEMORANDUM OF OPINION This Chapter 7 case is now before the court on motions raising questions about the operation of the automatic stay. One of the debtors owned stock in a corporation. The corporation owned real estate, but it paid neither its real estate taxes nor its franchise taxes. Because of the failure to pay franchise taxes, the corporation was dissolved. Because of the failure t...
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DECISION This matter is before the court on debtors’ motion to avoid the security interest of Hicksville Bank on their 1976 Chevrolet pickup truck. The truck has been claimed as exempt pursuant to I.C. 34-2-28-l(a)(2). Debtors contend that the truck is a tool of Mr. Shipman’s trade, entitling them to avoid the bank’s nonpossessory, nonpurchase-mon-ey security interest pursuant to 11 U...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This case involves a dispute between the Debtors and the Umted States Trustee concerning the appropriate calculation of trustee fees under 28 U.S.C. 586(e)(1). JURISDICTION TMs Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157, 1334 and Local Rule 29 of the United States District Court for the Ea...
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ORDER At Saint Louis, in this District, this 26th day of May, 1994. The matter before the Court is the “Motion to Confirm or, in the alternative, to Compel Abandonment” (“Motion”), filed on behalf of Rio Grande Properties II, L.P., a Delaware Limited Partnership (“Rio Grande”). These determinations and this Order are based on a consideration of the record as a whole, including th...
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ORDER This matter is before the Court on appeal of the bankruptcy court’s Memorandum Opinion, issued on September 17, 1993. The Court has appellate jurisdiction pursuant to 28 U.S.C. § 158(a). The primary issues involved in this appeal concern a $130,000 inheritance to which the debtors became entitled, but did not receive, during the course of their five-year bankruptcy plan. After due conside...
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*548 MEMORANDUM & ORDER The plaintiff-creditor, Ramsey National Bank & Trust Co. (Bank), commenced the above-entitled adversary proceeding by complaint filed July 27, 1993, seeking a determination that outstanding indebtedness which arose from two unsecured loan transactions was nondischargeable pursuant to section 528(a)(2)(B) of the Bankruptcy Code. The defendant-debtor, Keith ...
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MEMORANDUM & ORDER The matter before the court is confirmation of the Debtors’ First “Amended” Plan of Reorganization (Plan) under Chapter 12 of the United States Bankruptcy Code. The Debtors, Wayne and Pamela Foertsch, filed their modified plan of reorganization on November 18, 1993. The standing Chapter 12 Trustee (Trustee) and Lincoln State Bank (Bank), the Debtors’ principal secured c...
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MEMORANDUM & ORDER The matter before the court is a motion filed by the official unsecured creditors’ committee on January 10, 1994, for an order converting the case from a Chapter 11 reorganization to a Chapter 7 liquidation pursuant to 11 U.S.C. § 1112(b) and the appointment of an interim trustee. The motion to convert was joined by First Western Bank & Trust of Minot, Butler Machinery ...
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MEMORANDUM DECISION Preliminary Statement On December 27, 1993, LOUIS A. MOV-ITZ, the Trustee, filed a complaint requesting: (1) the turnover of certain property; (2) an accounting; (3) that the Debtor’s discharge be denied under 11 U.S.C. § 727; and (4) that a permanent injunction issue enjoining the Debtor and any person or entity that received certain property of the estate fr...
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ORDER (Re: Motion to Enforce Settlement) The Debtor’s Motion to Enforce Settlement with the Internal Revenue Service came on regularly for hearing on January 27, 1994. The Debtor was represented by Kathleen H. Herighty; the United States (Internal Revenue Service) was represented by Bernard J. Knight, of Washington, D.C. Upon consideration of the entire record in this case, the authorities ci...
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MEMORANDUM OF DECISION Plaintiff Carolyn Lorenee (“Lorenee”) moves for abstention and remand of the above-captioned adversary proceeding to the state court where it was filed. She also moves for sanctions against defendants pursuant to rule 9011 of the Federal Rules of Bankruptcy Procedure for improper removal. For the reasons stated below, Lorence’s motions are denied. BACKGROUND ...
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DECISION Debtor Alton J. Wilson (“debtor”) has moved to avoid a judicial lien in favor of George S. Wynns (“Wynns”) pursuant to Bankruptcy Code section 522(f)(1). 1 The motion will be denied. I. INTRODUCTION The facts are undisputed. On January 3, 1994, debtor filed a voluntary petition under Chapter 13 of the Bankruptcy Code. At that date, debtor owned an...
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ORDER REMANDING CASE AND VACATING DECISION AND OPINION BELOW Based upon the reasons set forth in the Court’s Minute Order dated 11/22/93, which is incorporated herein, IT IS ORDERED that the decision of the Bankruptcy Court and the opinion at 150 B.R. 239 are VACATED and this case is REMANDED to the Bankruptcy Court for proceedings consistent with the Minute Order. The Court, on its own...
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*604ORDER APPROVING SETTLEMENT AGREEMENT AND VACATING DECISION PREVIOUSLY PUBLISHED Upon considering the Motion of MAX ROUSE & SONS, INC. (“ROUSE”), for an order from this court decertifying and vacating its Memorandum of Decision dated March 5,1992, which decision was entered on March 11, 1992 and published as In re Specialty Plywood, Inc., 137 B.R. 960 (Bankr.C.D.Cal.1992) [“the Bankruptcy Cour...
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MEMORANDUM OF OPINION J. INTRODUCTION The issue before this Court, on motion by debtor in possession Davey Roofing, Inc. (“Debtor”), is whether alter ego claims against Donald Davey (“Debtor’s principal”) constitute property of the bankruptcy estate. In bankruptcy, property of the estate does not belong to any individual creditor. If under Ninth Circuit and California law, De...
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MEMORANDUM OPINION This matter is before the court on cross-motions for summary judgment. The chapter 7 trustee claims that the Mellon Bank (hereinafter “Mellon”) made an unauthorized postpetition transfer under 11 U.S.C. § 549 of estate property consisting of funds in a bank account. Mellon answered that prepet-ition the debtors (hereinafter “Martins”) had executed an absolute irrevocabl...
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OPINION I. Introduction. These two cases come before the court on motions for summary judgment. At issue is the interpretation and application of 11 U.S.C. § 547(c)(4), which defines the circumstances in which a creditor may assert the “new value” defense in a preference action. The first case, Pay ’N Pak Stores, Inc. v. Slide-Co., addresses the issue, as framed by the def...
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MEMORANDUM OPINION AND ORDER This case was set for a two-week jury trial commencing on June 13, 1994. As set forth below, I have stricken the trial date, grant Defendant’s motions for sanctions and enter new pre-trial orders. As will soon be evident, this litigation is not a paradigm of efficient management. *633 I. Procedural Background. On March 12, 1991, Plai...
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MEMORANDUM OPINION AND ORDER Appellant Amdura National Distribution Company (Andco), a subsidiary of Amdura Corporation, Inc. (Amdura), seeks reversal of the Bankruptcy Court’s September 13, 1993 order granting appellee Amdura’s motion for summary judgment and denying Andco’s cross-motion. At issue is whether the bankruptcy court committed any reversible error in denying Andco’s request f...
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*649 MEMORANDUM OF DECISION ON CONFIRMATION A confirmation hearing was held in this case on March 14 and 15, 1994. The debtor presented its case in support of confirmation of its plan and the Kansas Public Employees’ Retirement System (KPERS) presented its case in opposition. The debtor is represented by Daniel Flanigan and David Ferguson of McDowell, Rice & Smith, Kansas City, M...
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ORDER GRANTING SUMMARY JUDGMENT This proceeding is before the Court on the trustee-plaintiffs motion for summary judgment. The trustee filed a complaint to try, pursuant to 11 U.S.C.A. § 549, to recover an alleged postpetition transfer of estate property to State Farm Life Insurance Company (State Farm). The debtor intervened, and State Farm filed an answer leaving the actual defense of this ac...
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ORDER ON APPLICATION FOR PAYMENT OF ADMINISTRATIVE CLAIMS This matter came before this Court on Application for Payment of Administrative Claims filed by Union Pacific Railroad Company and Missouri Pacific Railroad Company (collectively, the “Railroads”) asking this *666Court to approve payment of certain post-petition lease rental and freight charges to-talling $35,980.00 as administrative expe...
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MEMORANDUM DECISION AND ORDER This matter came before the Court February 18, 1994, for purposes of a hearing on California Energy Development Corporation’s (“CEDC”) motion for withdrawal of reference of Adversary Proceeding Number 93PA-2495. Defendant CEDC was represented by Cass C. Butler of Ballard Spahr Andrews & Ingersoll and Barry Wm. Levine of Dickstein, Shapiro & Morin. Plaintiff R...
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Order Denying Debtor’s Motion to Vacate Order Reopening the Estate THIS CAUSE is before the Court on the Motion of O.A. Winburn, Jr. (the “Debtor”), for Rehearing of the Order Granting the Motion of U.S. Trustee (the “Trustee”) to Reopen the Chapter 7 Estate. At the hearing on the Debtor’s motion, the Court granted leave to the parties to file a memoranda of law as to what evidence th...
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ORDER AFFIRMING BANKRUPTCY COURT This cause is before this Court on appeal from final judgment entered by the Bankruptcy Judge in favor of appellees. Jurisdiction is pursuant to 28 U.S.C. § 158(a). Chief Bankruptcy Judge Alexander L. Paskay entered Final Judgement on September 23, 1993. STANDARD OF APPELLATE REVIEW Findings of fact by the Bankruptcy Court will not be set asi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon debtors’ objection to claim 11 filed by the United States of America for its Internal Revenue Service (“IRS”). The Court held a hearing on March 16,1994, and upon a stipulation of facts, the Court enters findings of fact and conclusions of law: Stipulation of Findings of Fact 1 The pa...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS MATTER came on for consideration upon the Motion for Summary Judgment filed by the Plaintiff/Debtor in the above captioned case. This Court has considered all arguments and evidence consistent with a ruling on a motion for summary judgment. See Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. ...
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ORDER This case is before the Court on debtor E.L. Fitzgerald’s motion for the appointment of counsel pursuant to 28 U.S.C. § 1915(d). Debtor is presently incarcerated and seeks counsel to assist him as a debtor in this Chapter 7 case and as a defendant in an adversary proceeding. After carefully considering debtor’s motion, the trustee’s response, the record and the applicable law, t...
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ORDER It has come to the Court’s attention that the above adversary proceeding has been pending without any substantial activity of record having taken place since December 7, 1992. This proceeding was commenced by the chapter 7 Trustee Theo D. Mann (hereinafter “Trustee”) against Robert Hahn (hereinafter “Debtor”) as a Complaint Objecting *694 to Discharge. The matters i...
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DECISION RE MOTIONS FOR SUMMARY JUDGMENT This is a dispute between the debtor, 5028 Wisconsin Avenue Associates Limited Part *701 nership, and its mortgagee 1 concerning the entitlement to rents owed by the debtor’s tenant, Copy King, Inc. The disputed rents have been held by the tenant in an escrow account pending resolution of the dispute. The court holds tha...
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OPINION This matter is before the court for determination of Debtor’s request for approval of his Amended Disclosure Statement and Plan. Shawmut Bank, N.A. and Signal Capital Corporation (the “Creditors”) have filed objections. The parties agree that the adequacy of the Statement and confirmability of the plan depend upon the treatment which I accord to Debtor’s rights under a te...
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MEMORANDUM I. INTRODUCTION The matter before this Court is an objection of Fleet Bank of Massachusetts, as Successor to Federal Deposit Insurance Corporation, as Receiver of Heritage Bank for Savings (“Fleet” or the “Bank”), to the Chap *712 ter 13 plan (the “Plan”) filed by the debtors, Franeiseek Legowski and Anna Legowski (the “Debtors”). II. FACTS On November 22, 1991, the Debto...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Motion to Dismiss, or in the Alternative, for Relief from Stay filed by Alan Milton (“Milton”). Milton seeks dismissal of this Chapter 11 case for cause pursuant to 11 U.S.C. § 1112(b) and for the grounds set forth in 11 U.S.C. § 305 with respect to abstention. Alternatively, Milton seeks relief from stay for cause pursuan...
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OPINION The Federal Deposit Insurance Corporation (“FDIC”) moves for the court “to compel” Mitchell B. Robbins (the “Debtor”) to pay postpetition real estate taxes, condominium fees and other obligations related to properties subject to mortgages held by the FDIC. The motion demonstrates a basic misconception of the effect of a postfiling secured credit stipulation or adequate protection order. ...
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OPINION Stanley Miller (the “Trustee”) has filed two motions for summary judgment under the Trustee’s multi-count complaint against numerous defendants. One motion concerns Counts 8 and 9 against Martin Hanley (“Hanley”), and the other concerns Counts 32 and 33 against Paul Lane and his wife Kathleen Lane (the “Lanes”). Paul Lane is the brother of Andrew J. Lane (the “Debtor”), ...
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MEMORANDUM OF DECISION ON RENEWED MOTION OF NEW BED-FORD INSTITUTION FOR SAVINGS FOR RELIEF FROM THE AUTOMATIC STAY By its Renewed Motion for Relief from the Automatic Stay, New Bedford Institution for Savings (“the Bank”) seeks relief from the automatic stay, 11 U.S.C. § 362(a), to foreclose on the real property belonging to the Debtor, John E. Daly, and located at 233 Jefferson Street, Nort...
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MEMORANDUM OPINION In accordance with the December 1, 1993, Order of the United States District Court for the District of New Hampshire, this Court held an evidentiary hearing on February 18, 1994, on the issue of whether Plaintiffs are entitled to actual damages, including attorneys’ fees, as a result of a violation of the automatic stay (11 U.S.C. § 362). For the reasons set out bel...
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OPINION AND ORDER Before the Court is a Motion for Summary Judgment (docket' No. 9, filed on January 8, 1993)1 submitted by the trustee for the debt- or J. Gus Lallande, Inc. (Lallande) against plaintiff Caridev, Inc. (Caridev) in an action involving a contract for the sale of property by the trustee on behalf of debtor estate to plaintiff corporation. Caridev submitted its Opposition and Cross...
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RULING ON PLAINTIFF’S MOTION TO AMEND COMPLAINT I. The trustee for the estate of Colonial Cheshire I Limited Partnership, the debtor in the underlying Chapter 7 case, filed an adversary proceeding on April 7, 1993 seeking the return of all or a portion of funds the debtor had transferred prepetition to the defendant-law firm. The complaint states that these funds were property of...
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MEMORANDUM OF ORDER ON MOTION FOR AUTHORIZATION TO FILE A RIVAL PLAN UNDER CODE § 1121(C) At a hearing on June 9,1994,1 ruled that a rival plan could be filed by an unsecured creditor even though the disclosure statement for the debtor’s plan has been approved. This memorandum explains the basis for that decision. BACKGROUND This chapter 11 case was commenced on June 9, 1993. Th...
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DECISION ON FEE APPLICATION This matter comes before the Court on the fee application of D’Amato, Forchelli, Libert, Schwartz, Mineo, Lamino & Carlino (“DFL”) as special counsel to Castle Ventures, LTD. (the “Debtor”) seeking compensation and the reimbursement of expenses for work performed in connection with tax certiorari proceedings on behalf of the Debtor. Opposition to the fee applic...
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DECISION AND ORDER BACKGROUND On April 16, 1992 the Debtor, Phyllis A. Kephart, M.D. (The “Debtor”), filed a petition initiating a Chapter 7 case. The only debts listed on the Debtor’s schedules were a first mortgage on her residence, a $12,000 personal loan with Marine Midland Bank, a student loan of less than $2,000 due to the Massachusetts Higher Education Assistance Corporation and an ind...
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The debtors in this proceeding have moved under 11 U.S.C. § 522(f) to avoid certain judicial liens which impair the debtors’ homestead exemptions. At issue is the extent to which a junior unavoidable tax lien will impact upon this right of avoidance. William and Susan Koehler filed a joint petition for relief under Chapter 7 of the Bankruptcy Code on January 21, 1994. At that time, they he...
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OPINION AND ORDER Appellant Aetna Casualty and Surety Company appeals from an order of the Bankruptcy Court for the Southern District of New York approving a settlement (the “Settlement Order”) among the National Fire Insurance Company of Hartford (“National Fire”), the Bureau of Workers’ Compensation, Department of Labor and Industry of the Commonwealth of Pennsylvania (the “Bureau”), and the ...
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DECISION ON TRUSTEE’S MOTION TO REDUCE DEBTORS’ AUTOMOBILE EXEMPTION TO $2,100 THE MOTION The debtors, husband and wife, each claim a motor vehicle exemption in the amount of *783 $2,400 pursuant to § 282(1) of the New York State Debtor and Creditor Law in the same 1988 Toyota Camry, which is titled solely in the wife, for a total exemption of $4,800. The Chapter...
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ORDER On March 31, 1993 Appellants Bruce La-telle, Westwood Corp., Roland Boutin and John Canney, Successor to the Debtor as Trustee, filed appeal from the Order of the United States Bankruptcy Court Judge Francis G. Conrad entered March 8, 1993, granting Vermont Federal Bank’s (“FSB”) motion for relief from the automatic stay provisions of 11 U.S.C. § 362. The issue this Court must decide is w...
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Opinion Introduction Old Electralloy Corporation f/k/a and f/d/b/a Electralloy Corporation (“Debtor”) operated as a specialty steel manufacturer with plants located in Oil City, Pennsylvania, Kokomo, Indiana and Frazier, Pennsylvania. The United Steelworkers of America (“USWA”) is the collective bargaining representative of the hourly employees at the Debtor’s Oil City locati...
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OPINION Introduction On March 23, 1990, Mechem Financial, Inc. (“Mechem”) filed a voluntary Petition under Chapter 11 of the Bankruptcy Code. On that same day, Robert G. Dwyer, Esq. was appointed as Chapter 11 Trustee. The case was subsequently converted to Chapter 7 and Robert G. Dwyer, Esq. (“Trustee”) presently serves as the Chapter 7 Trustee. Northern Insurance Compa...
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MEMORANDUM OPINION Two interrelated issues presently are before the court: (1) the appropriate method of marshalling estate assets in order to pay the se *808 cured claim of Huntington National Bank (hereinafter “Huntington”) pursuant to a settlement between Huntington and the chapter 7 trustee (hereinafter “trustee”); and (2) the trustee’s objection to the secu...
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ORDER This matter comes before the court upon NationsBane Financial Services Corp.’s (hereinafter referred to as “NationsBane”), Objection to Amended Chapter 13 Plan. At the hearing, NationsBane was represented by Ronald F. Barbare of Lathan & Barbare, P.A.; the debtor was present and represented by Sheila R. Young of the Law Office of John Kirkland Fort; and the Chapter 13 Trustee wa...
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ORDER GRANTING RELIEF FROM THE AUTOMATIC STAY This matter came before the court on the motion of Resolution Trust Corporation (RTC) for relief from the automatic stay filed February 16, 1994. The Debtor filed an objection dated February 28, 1994. The Chapter 13 Trustee did not file an objection on behalf of the Debtor’s unsecured creditors. No other interested parties objected. Counsel for RT...
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OPINION I. Facts and Procedural History On June 16,1993, the Chapter 7 Bankruptcy Trustee, Alexander P. Smith (“the Trustee”), filed a motion to hold the debtor, Vernon Lee Finney, in contempt and for proper sanctions. The motion did not specify the type of contempt sought. However, the *821 Trastee now asserts that he sought only an adjudication of civil contemp...
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MEMORANDUM OPINION Trial was held on February 28 and March 1, 1994, on plaintiffs complaint to determine the dischargeability of debt pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(4). After the presentation of evidence and the argument of counsel the court ruled in favor of plaintiff. This memorandum opinion supplements the court’s bench ruling. Findings of Fact Debtor filed a voluntary ...
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MEMORANDUM OPINION Trial was held on February 14, 15, 18, and March 4, 1994, on plaintiffs complaint to determine dischargeability of debt pursuant to 11 U.S.C. § 523(a)(2)(B). At the conclusion of the trial the court made findings of fact and conclusions of law from the bench and ruled for debtor defendant. This memorandum opinion supplements the court’s bench ruling. Findings of Fact ...
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MEMORANDUM OPINION This case is before the court on appeal from an order entered by The Honorable William E. Anderson, Chief United States Bankruptcy Judge, overruling appellant’s objection to the amended claim filed by the Internal Revenue Service. Upon careful consideration of the record, the applicable law, and the briefs submitted by counsel, the court finds that the Bankruptcy Judge’s rulin...
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OPINION Comes now before the Court the Motion of Carolyn Sue Buffington for Relief from Automatic Stay pursuant to regular setting in Beaumont, Texas. Also before the Court for consideration is the Motion of J.R. Buffing-ton to Avoid Judicial Lien Pursuant to 11 U.S.C. § 522(f). The parties agree that the identity of legal issues present in both motions requires that these motions be consider...
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OPINION Comes now before the Court the First Amended Complaint of Steven E. and Kathleen Fandre, hereinafter referred to as (“Debtors”) to Avoid Preference and Determine Dischargeability of Debt pursuant to regular setting in Plano, Texas. Pursuant to a joint pre-trial order all parties have waived oral hearing and requested that this Court address the issues presented in this case th...
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OPINION Comes now before the Court for Confirmation the First Amended Chapter 13 Plan of Debtor Stephen Collins. An Objection to Confirmation has been filed by Ford Motor Credit Company. This opinion constitutes findings of fact and conclusions of law in accordance with Fed.R.Bankr.P. 7052 and disposes of all issues before the Court. FACTUAL AND PROCEDURAL BACKGROUND The facts are not s...
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ORDER DENYING MOTION FOR MANDATORY ABSTENTION AND REMAND ALTERNATIVELY, FOR DISCRETIONARY ABSTENTION AND REMAND On this day came on for consideration the Motion for Mandatory Abstention and Remand Alternatively, for Discretionary Abstention and Remand (the “Motion”), filed by the Plaintiff, Helen Ruth Manges (“Movant”). Movant seeks mandatory or permissive abstention and remand of this procee...
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*851 MEMORANDUM This matter comes before the Court on the Debtors’ Response to GMAC’s Motion to Terminate the Automatic Stay as to a Nissan automobile. The Debtors have requested a hearing on GMAC’s Motion. The Debtors’ statements fail to set forth sufficient grounds for a hearing on GMAC’s motion to terminate stay. The Debtors simply state that they have been past due on the account, but can ca...
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MEMORANDUM OF OPINION AND ORDER In this Chapter 7 matter (Brian A. Bash, The Trustee) seeks the appointment of Eugene E. Curtain (Curtain) of the Herbert E. *852Kohn Realty Company to serve as a real estate broker for the purpose of selling certain property of the bankruptcy estate of Lawrence Goldsby (The Debtor). In support of his motion for authorization to employ Mr. Curtain, the Trustee sta...
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DECISION ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT In this adversary proceeding, plaintiff/debtor pursues an adjudication resolving competing interests in a fund in its hands, the source of which was a sale of real property assets located in Missouri. Now before the court is plaintiff’s motion for partial summary judgment. Defendant Security Pacific Business Credit, Inc. (“SPBC”) filed...
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MEMORANDUM OPINION AND ORDER On March 31,1994, the Court conducted a hearing on the Application of Arnold S. White for Allowance of Compensation as Counsel for Trustee and the Final Report and Account of Trustee. At the hearing, Arnold S. White (“Trustee”) was present along with a representative of the Office of the United States Trustee (“U.S. Trustee”). No party in interest nor the ...
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MEMORANDUM OPINION AND ORDER RE COMPLAINT TO DENY DIS-CHARGEABILITY OF DEBT AND FOR JUDGMENT This core proceeding came on to be heard on the adversary complaint of Automotive Financial Services, Inc., (“Kimbrough Properties” “AFS” or “plaintiff’) seeking to have its debt declared nondischargeable and seeking a monetary judgment. The Court has jurisdiction by virtue of 28 U.S.C. § 157(b)(2...
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MEMORANDUM OPINION AND ORDER James R. Loewenberg, Marvin Fitch, Paul Cocose and William Cocose (collectively, “Guarantors”) appeal from the November 8, 1993 order of Bankruptcy Judge John D. Schwartz approving a settlement between the trustee of the estate of VIII South Michigan Associates and the Northern Trust Company (“Northern”). Presently before the court is Northern’s motion to dismiss ...
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MEMORANDUM OPINION This matter comes before the Court on the Trustee, Sheldon L. Solow’s motion for summary judgment in opposition to the motion to modify the automatic stay brought by CAM-CO Incorporated (“CAMCO”), CAMCO Connecticut (a division of CAMCO), Texas CAM-CO Incorporated, Avmar Incorporated, Ard-co Incorporated, and Aircraft Turbine Service, Incorporated (collectively refer...
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ENTRY This matter is before the Court on appeal from the Bankruptcy Court’s March 23, 1993 Order granting the amended motion of the debtor, Wabash Valley Power Association, Inc. (‘Wabash”), for authority to substitute pre-chapter 11 debt. The United States of America, on behalf of the Rural Electrification Administration (“REA”), appeals. For the reasons stated below, the Order of the Bankruptcy C...
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ORDER SUSTAINING OBJECTION TO MODIFICATION THIS CAUSE is before the Court upon the Objection to Modification of Plan After Confirmation, filed by SAC Federal Credit Union, on February 7,1994. The matter was called for hearing at which time the parties appeared, presented the Court with a stipulation of the facts, and argued their respective positions. The issue before the Court is whether the...
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ORDER NOW on this 28th day of May, 1993, comes on for consideration the appeal of Bankruptcy Judge James Mixon’s decision entered on June 23, 1992. 147 B.R. 489. Briefs have been submitted by the parties and the matter is now ripe for determination. ISSUES PRESENTED ON APPEAL The issues presented on this appeal are whether the judgment entered by the Chancery Court of Be...
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MEMORANDUM OPINION AND ORDER INTRODUCTION These two unrelated cases each concern the extent to which a security agreement, entered into when an automobile was purchased, also covers unearned premiums for credit life insurance and an extended service agreement. JURISDICTION This Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 15...
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ORDER The matter being considered here is the Trustee’s oral request to correct a clerical mistake or error arising from omission. This determination is based upon a consideration of the record as a whole. The Debtor has orally opposed the Trustee’s motion. A summary of the documents that are the basis of this proceeding is set out below. [[Image here]] *900[[Image here]] Rule 60, Federal Rules ...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This Case presents the question of whether a Chapter 13 plan which proposes to cure arrearages on a promissory note, secured solely by an interest in the Debtor’s principal residence, which matured prepetition is an impermissible modification of the mortgagee’s rights under 11 U.S.C. § 1322(b)(2). JURISDICTION This Court has jurisdi...
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MEMORANDUM OPINION Facts Leon Basham, the Debtor, filed for Chapter 13 relief under the Bankruptcy Code, 11 U.S.C. § 1301, et seq. (the Code), on January 14, 1993. The Debtor listed only six creditors in Schedules D — F. Two of the claims are scheduled as secured. The Debtor scheduled a debt in the amount of $23,500 to Green Tree Acceptance Corp. (Green Tree) for the purchase of a...
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The Chapter 7 Trustee, A. Thomas Pokela, has filed a Complaint by Trustee to Avoid Unprotected Security Interest in Personal Property, an adversary matter that requires a determination of the validity, priority, and extent of a creditor’s lien in Debtors’ automobile. An answer was filed by Sioux Falls Attorney Kent R. Cutler on behalf of Defendant Dakotas United Methodist Federal Credit Union [her...
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The matter before the Court is a Motion to Dismiss Chapter 12 Bankruptcy filed by Yankton Attorney Douglas R. Kettering on behalf of Farm Credit Services [hereinafter “FCS”] and responded to by Yankton Attorney John Harmelink on behalf of Debtors. The motion implicates 11 U.S.C. § 1225 insofar as a Chapter 12 plan may only be confirmed if the petition is filed in good faith. FCS contends this Cha...
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OPINION An art gallery entered into a five year lease agreement with a shopping center. Within ninety days of the art gallery’s bankruptcy petition, the gallery and the shopping center entered into a termination of lease agreement with the gallery transferring about $38,000 to the shopping center. Post-petition, the art gallery, as debtor in possession, sought to avoid the $38,000 tra...
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MEMORANDUM OF DECISION This case involves the claim of the Internal Revenue Service (hereinafter “IRS”) against Bruce G. Rossiter (hereinafter “Debtor”), regarding the alleged liability of the Debtor under Internal Revenue Code § 6672(a), as a “responsible person” who willfully failed to ensure that withholding taxes were paid over to the IRS. I. STATEMENT OF FACTS The claim of ...
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MEMORANDUM DECISION John J. Bruton, Debtor, has moved to avoid the judicial hen of Spindrift Del Mar Homeowners Association (“HOA”) pursuant to 11 USC Section 522®, claiming that the hen impaired his homestead exemption. HOA opposes this motion, stating that Bru-ton did not reside at the property during those times required by the statute and is not entitled to a homestead exemption under the l...
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SUMMARY ORDER: OFFICIAL RETIREES’ COMMITTEE FEE AND EXPENSE APPLICATION The Official Retirees’ Committee has filed an application for allowance of administrative expenses pursuant to section 503(b)(4), a first application for interim allowance of compensation and reimbursement of expenses by counsel for the Retirees’ Committee, and a second application for interim allowance of compensation and re...
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ORDER In this Chapter 7 case, the Debtor has filed a motion to avoid a lien of creditor Bell pursuant to 11 U.S.C. § 522(f). After response by the creditor, the matter was heard upon notice on May 25,1994, with the Debtor appearing and testifying and represented by Debtor’s counsel. Creditor Bell, an attorney, appeared on her behalf. At issue is whether Bell’s claim for attorney’s fees ar...
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ORDER This matter is before the Court on remand from the Ninth Circuit Court of Appeals directing the Bankruptcy Court to determine the damages of Mercedes-Benz Credit Corp. (“MBCC”) due to rejection of an unexpired lease “under the terms of the lease’s liquidated damages clause as interpreted by Washington law.” The Ninth Circuit held: The lease was merely breached, not rescinded or...
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ORDER REMANDING ACTION TO BANKRUPTCY COURT THIS MATTER comes before the Court on an expedited appeal, filed by Defendants/Appellants Bank of Boulder (hereafter “the Bank”), Richard Eason, David Eason, and the law firm of Eason, Sprague & Wilson (the “Eason firm”). On April 18, 1994, after oral argument, the Court granted the Appellants’ motion for stay and for mandatory injunctive relief. On May ...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on May 23, 1994, upon the Debtors’ Motion for Post-Confirmation Modification of Plan filed March 30, 1994, and the objections thereto filed by Courtesy Ford and the Chapter 13 Trustee. The objection by the Chapter 13 Trustee is a technical objection, and the Debtors have agreed that they will correct that matter. On January 31, 19...
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MEMORANDUM AND ORDER This is an appeal from an order of the bankruptcy court. The bankruptcy court’s order addressed two matters raised by the parties and both issues have been appealed. Appellants Farm Credit Bank of Wichita (FCB) and the Trustee contend that the bankruptcy court erred in concluding that the debtors were domiciled in Kansas at the time they filed their Chapter 7 bank...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the objections to confirmation of the debtors’ Amended Chapter 12 Plan filed by *955Montezuma Credit Union (“Montezuma”), Farm Credit Bank (“FCB”) and the Chapter 12 Trustee. Also before the Court are FCB’s motion to dismiss the debtors’ bankruptcy case, the motion by FCB for relief from stay as to the Litson property, t...
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MEMORANDUM OPINION This decision is occasioned by objections to Farm Credit Bank’s motions for remand of the above-captioned removed adversary proceeding and for abstention. The debtors, LaVerne R. Stigge and Ver-lene J. Stigge, appear by their attorneys, Jan M. Hamilton and Leon B. Graves of Hamilton, Peterson, Tipton & Keeshan, Topeka, Kansas; plaintiff Farm Credit Bank of Wichita, Wichita, K...
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MEMORANDUM OPINION Lloyd Y. Cooper, III, and Tamara J. Cooper appear by their attorney, James H. Thompson, Jr., Kansas City, Missouri. Nebraska Student Loan Program, Inc. (“NSLP”), appears by its attorney, Thomas L. Griswold of Payne & Jones, Chartered, Overland Park, Kansas. The debtors filed for relief under Chapter 13 on November 24, 1992. A Chapter 13 plan was confirmed on Ma...
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*971 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This matter is before the Court on the Plaintiffs Complaint to Determine Dis-chargeability of Debt. The Plaintiff seeks to have his debt of $17,124.60 plus interest declared nondisehargeable under 11 U.S.C. § 523(a)(6) as a debt for willful and malicious injury by the Defendant. The Plaintiff filed a Motion for Summary Judgment on F...
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ORDER DENYING MOTION TO DISMISS This matter is before the Court on the Defendant’s Motion to Dismiss the Plaintiffs Complaint for Revocation of Discharge filed on December 27, 1993 and the First Amended Complaint for Revocation of Discharge filed on January 7, 1993. For the reasons stated below, the Court will deny the Motion to Dismiss. FACTS The Defendants filed this Chapter 7 bankrup...
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ORDER On May 10, 1994, this Court conducted a trial on the Complaint in the above-referenced adversary proceeding in McAlester, Oklahoma. Counsel appearing in person were Belva Brooks Barber on behalf of Red Oak Branch of Farmers State Bank of Quinton, and the Debtors appeared pro se. After a review of the evidence, the arguments of counsel and the applicable law, the Court does hereby enter the...
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ORDER This matter having come on for hearing upon the debtors’ objection to claim number four of the Internal Revenue Service (“IRS”); due notice having been given; Thomas Anthony Poiroux having appeared with his attorney, Michael B. Smith, and William Sawyer, Assistant United States Attorney, having appeared for the IRS; and testimony having been taken and the matter having been taken under ...
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ORDER AWARDING SANCTIONS THIS MATTER came on for hearing on May 20, 1994 on the motion of the debtors for the imposition of sanctions pursuant to 11 U.S.C. § 362 against White Sands Auto Sales, Ray Hudson Enterprises, and Northwest Florida Recovery, Inc. for willful violation of the automatic stay. The debtor appeared pro se and Ray Hudson and Brian Sparling appeared as witnesses for Ray Huds...
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ORDER Before the court is a motion for summary judgment filed by defendant CCC Associates Co., Inc. (“CCC”). In the underlying complaint, World Bazaar Franchise Corporation a/k/a World Bazaar (“debtor”) seeks to avoid and recover a preferential transfer in the principal amount of $28,037.52. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(F). The court will deny def...
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MEMORANDUM OPINION Edward J. Wiggins, Debtor, filed a petition under Chapter 11 of the Bankruptcy Code on September 1, 1992. The ease was converted to a case under Chapter 7 of the Bankruptcy Code on October 6,1992. The Court entered an order of discharge on January 12, 1993. On May 20, 1993, Citizens Bank of Americus filed a proof of claim in Debtor’s Chapter 7 bankruptcy case in the amount of ...
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ORDER This appeal is from the Bankruptcy Court’s order of October 27, 1993, which disallowed a proof of claim for $230,163.38 filed by the Citizens Bank of Americus (“Bank”) against debtor Edward J. Wiggins (“Wiggins” or “debtor”), FACTS On May 1, 1991, Edward J. Wiggins executed a note and a deed to secure debt in favor of the Bank. The note was secured by certain real property. On September...
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MEMORANDUM OPINION This matter is before the Court on Objection Of The United States Trustee To Debt- or’s Application For Order Authorizing The Retention Of Accountant. A hearing on the Trustee’s Objection was held on March 23, 1994. Based on the evidence presented at the hearing, and the arguments of counsel, the Court will sustain the objection of the United States Trustee. These f...
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OPINION A INTRODUCTION In an appeal of our Order, affirmed by the District Court, denying Prudential Savings Bank (“Prudential”) retroactive relief from the automatic stay in Bankr. No. 91-16378DAS, the second Chapter 13 bankruptcy case (“the 2d Case”) filed by LEONARD J. SICILIANO (“the Debtor”), the Third Circuit Court of Appeals (“the Court”), in a decision reported as...
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OPINION Before the Court is the Motion for Judgment on the Pleadings (the “Motion”) filed by the defendant Rental Tools/Equipment (“Defendant”). The Motion requires the Court to decide an issue expressly reserved by the Third Circuit Court of Appeals in its recent decision Construction Management Services, Inc. v. Manufacturers Hanover Trust Company (In re Coastal Group Inc.), ...
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