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All Reporters → br → Volume 172

Opinions in br Volume 172

DECISION AND ORDER The Chapter 13 Debtors seek to treat the second mortgage held by Beneficial Mortgage Company of Rhode Island as wholly unsecured, and to remove said mortgage from their principal residence. In its objection, Beneficial argues that Nobelman v. American Sav. Bank, — U.S. —, 113 S.Ct. 2106,124 L.Ed.2d 228 (1993), precludes any modification of its lien on the Debtors’ home....
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OPINION These are two consolidated bankruptcy appeals by Park International Service Co., Inc. from orders of Bankruptcy Judge Burton R. ■Lifland. The first is from an order dated May 27, 1993 denying certain claims against the debtor. The second is from an order dated September 15, 1993 denying reargument of the original order. Both orders are affirmed. FACTS On September 24, 1989 Lomas Financi...
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MEMORANDUM OPINION Before the Court is the Motion of National Penn Bank, f/k/a National Bank of Boyer-town (“Movant”) for Dismissal of Bankruptcy for Bad Faith Filing or, in the Alternative, Relief from the Automatic Stay of 11 U.S.C. § 362 and Motion to Enjoin the Use of Cash Collateral (the “Motion”). Based on the record made at the hearing held on July 26, 1994 and August 1, 1994, we grant...
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ORDER This matter is before the Court on an appeal by the debtor of an order entered by the bankruptcy court on April 27, 1992, granting relief from the automatic stay provision of 11 U.S.C. § 362(a). Edward Claughton, the debtor/appellant, is the former husband of Beverly Mixson, the appellee. The debtor is appealing an order of the Honorable Marvin Wooten entered in his Chapter 11 case which ...
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MEMORANDUM OPINION This proceeding is before this court on Appellant’s, Internal Revenue Service (“IRS”), appeal of the bankruptcy court’s Order confirming the Debtor’s, Danny Stewart (“Stewart”), Chapter 13 plan. Jurisdiction in this court is pursuant to 28 U.S.C. § 158(a). FACTS The Debtor filed a petition in bankruptcy on November 8, 1993 according to Chapter 13 of the bankruptcy code. 1...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon Debtors’ Motion to Avoid Lien pursuant to 11 U.S.C. § 522(f); and Debtor’s letter filed with the Court on July 14, 1994. The Court has reviewed the documents submitted and the relevant case law, as well as the entire record in this matter. Based upon that review, and for the following reasons, the Court finds that the Debtor’...
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MEMORANDUM OPINION AND DECISION This case comes before the Court on remand from the Court of Appeals, and after a Hearing on Plaintiffs Writ of Execution Issued to Defendant to Garnish Defendant’s Interests in the Bell and Beckwith Profit Sharing Retirement Plan and Trust (hereafter the “Plan”). A Hearing was held on June 22, 1994. At the Hearing, the parties were afforded the opportunity to pr...
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OPINION AND ORDER DISMISSING COMPLAINT TO DENY DISCHARGE AND DENYING MOTION TO DISMISS BANKRUPTCY CASE This matter is before the Court on the Fahey Banking Co.’s (“Bank”) complaint to deny Lou Ann Irey (“LAI”) a discharge pursuant to 11 U.S.C. § 727(a) and to except the debt owed by LAI to the Bank from discharge under § 523(a). The Bank has also moved to dismiss LAI’s chapter 7 case purs...
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OPINION Before the Court is Debtor’s Application for Approval of Final Distribution and for Final Decree Closing Case along with an Objection of Farmer City State Bank to the same. Debtor recovered the sum of $14,804.49 from Ackerman Chevrolet as a result of a preferential transfer made by Debtor to Ack-erman within the ninety-day period prior to the filing of Debtor’s bankruptcy petition. ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE is before the Court upon the trial of the complaint for turnover, filed on June 15, 1994. On the same day that the petition-in-bankruptey was filed, June 2, 1994, the debtor’s 1978 Ford Bronco was sold by the Sheriff to William T. Walker. Debtor seeks return of that vehicle in which he claims exemptions pursuant to 11 U.S.C. § 522(d)(2), (5)....
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court upon the trial on the merits of the dischargeability action filed by the debtor. Debtor seeks a determination that any debt owed to the Eldridges is dischargeable in his bankruptcy case. 1 I. The defendants, Reuben and Sandra El-dridge, obtained a personal injury tort judgment against Rising Fas...
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ORDER OF DISMISSAIj THIS CAUSE is before the Court upon the Motion to Dismiss, filed on April 11, 1994, by the United States of America. The United States seeks dismissal of this case for cause, pursuant to Bankruptcy Code section 707(a). Hearing on the motion was held on August 11, 1994. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 1334. Moreover, this Court...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE is before the Court upon the trial of the complaint to determine dis-chargeability of debt. The plaintiff Gary Carter is a certified public accountant who practices in Ashdown, Arkansas. Carter previously owned an accounting practice in the Dallas-Fort Worth area, but moved to the Texarkana area to be near his elderly parents. In Marc...
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ORDER THIS CAUSE is before the Court upon the Motion to Reopen Case, filed on August 24, 1994, by creditors James K. and Marianne Bailey. Although the nature of the relief sought is unclear from the motion, the creditors apparently seek to reopen the case in order to modify the discharge injunction under section 524 of the Bankruptcy Code. Specifically, the creditors seek to pursue a ...
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MEMORANDUM OPINION AND ORDER This matter is before the court upon Appellants’ appeal from Bankruptcy Judge Nancy C. Dreher’s Order dated February 3, 1994. In re Gagne and VanKirk, 163 B.R. 819 (Bankr.D.Minn.1994). This court has jurisdiction pursuant to 28 U.S.C. § 158(a). On appeal to the district court, the bankruptcy court’s legal conclusions are subject to de novo ...
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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 BAC...
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MEMORANDUM This adversary proceeding is before the court upon the Trustee’s Motion for Summary Judgment and the Resistance by First National Bank of Morrill. I conclude that summary judgment should be entered in favor of the trustee. FACTS The relevant facts are undisputed. The Chapter 7 bankruptcy trustee seeks to avoid an allegedly unperfected security interest held by First National Bank of...
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MEMORANDUM OF DECISION RE: FCBO’S MOTION FOR RELIEF FROM THE AUTOMATIC STAY The matter before the Court is the Motion for Relief From Automatic Stay filed by Farm Credit Bank of Omaha and Debtor’s response thereto. This is a core proceeding under 28 U.S.C. § 157(b)(2). This Memorandum and accompanying Order shall constitute findings and conclusions as required by F.R.Bankr.P. 7052. As discussed mo...
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OPINION Debtors’ counsel, Mayer, Glassman & Gains (“MG & G”), submitted an application for allowance and payment of attorney’s fees and expenses. The bankruptcy court denied the application. MG & G appeals. We affirm. I. Background Harold and Linda Hanson (“debtors”) filed their joint petition for relief under chapter 7 of the United States Bankruptcy Code 1 on De...
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MEMORANDUM DECISION I. BACKGROUND In March of 1987 the appellant Melverne L. Haaland and his wife fell behind in their home mortgage payments. Their lenders foreclosed on the delinquent loans and noticed a trustee’s sale of the home for April of 1987. To prevent the loss of their home, in which Mr. Haaland claims they had over $40,000.00 in equity, the Haalands’ former attorn...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the Motion to Abstain filed by Peoples State Bank and Trust Co. (“Bank”). A hearing was held on May 16, 1994, at which time the Court took the matter under advisement. The Bank appeared by and through its attorney, Robert Nugent. Harry D. Krug (“debt- or”) appeared by and through his attorney, Tim Girard. The trustee, Er...
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MEMORANDUM OPINION AND ORDER The above-styled adversary proceedings under 11 U.S.C. § 727(a) were consolidated for trial. Trial was held on July 11, 12, 13 and 19, 1994. At trial, the following parties and attorneys appeared: Joseph Q. Adams, Trustee, and his attorney Steven J. Adams; Margaret Keeling, plaintiff, and her attorney Phyllis A. Dewitt; Steven K. Balman, attorney for plain...
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MEMORANDUM OPINION On May 10, 1994, and July 12, 1994, the court heard two motions for summary judgment brought by the trustee. The trustee challenges the applicability of the Negotiated Rates Act of 1993 (“NRA”) as well as the constitutionality of the NRA itself. The court took the matters under advisement and now issues the following opinion. FACTS Americana Expressways (“...
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ORDER This action is before this court on appeal from the United States Bankruptcy Court for the Southern District of Alabama. The plaintiff filed a motion for oral argument, but this court finds that the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. Bankruptcy Rule 8012. Therefore, it is ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ALLOWING CHAPTER 11 ADMINISTRATIVE EXPENSE OF STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION This ease is before the Court upon a Motion for Chapter 11 Administrative Expense filed by the Florida Department of Environmental Protection (“State”). The Court held a hearing on March 23, 1994, and upon the evidence presented enters these findings of...
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ORDER ON MOTION FOR LEAVE TO FILE FORMAL AMENDED PROOF OF CLAIM AND MOTION TO ENLARGE TIME TO FILE PROOF OF CLAIM THESE are yet-to-be confirmed Chapter 11 eases and the matter under consideration is a Motion for Leave to File Formal Amended Proof of Claim and Motion to Enlarge Time to File Proof of Claim filed by Thomas A. Cevera, Jennifer Cevera, and Doreen Beth Cevera (Claimants) in the...
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ORDER ON MOTION TO DISMISS THIS IS a Chapter 7 case and the matter under consideration is a Motion to Dismiss the Complaint, originally filed by Bieoastal Corporation, d/b/a Simuflite, fik/a The Singer Company (Bicoastal) against Paul A. Bilzeri-an (Debtor). The Complaint filed by Bicoas-tal set forth nine separate claims, in each of which Bicoastal challenged Bilzerian’s right *113to the protecti...
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ORDER ON MOTION FOR RELIEF FROM STAY This is a Chapter 11 case and the matter under consideration involves a dispute between the landlord, Centres of Gulfside, Ltd. (Landlord), a limited partnership, and PAV-CO Enterprises (Debtor), a Florida corporation. The controversy centers around the contention of the Landlord that a certain lease executed by the Landlord and the Debtor on August 5,...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This ease is before the Court upon the objection to exemption filed by the trustee. The Court held a hearing on the objection May 25,1994, and upon the evidence presented, the Court enters these findings of fact and conclusions of law: Findings of Fact Debtor and her former husband entered into a separation and property settlement *120 agreement...
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ORDER ON CONFIRMATION OF REPUBLIC BANK’S AMENDED PLAN OF REORGANIZATION THIS is a yet-to-be confirmed Chapter 11 case and the matter before this Court is the proposed Plan of Reorganization filed by Republic Bank (Bank) in the above captioned case. It should be helpful to recap briefly the background of the Chapter 11 case to gain a better understanding of the issues under consideration. ...
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ORDER ON DEFENDANT’S MOTION TO DISMISS ADVERSARY COMPLAINT This is a Chapter 11 case and the matter under consideration is a Motion to Dismiss the Complaint. The Motion under consideration is filed by William T. Darling and his wife C. Ann Darling (Debtors) who contend that the Complaint filed by South Trust Bank of Southwest Bank (Bank) is time barred thus subject to dismissal. The facts which ar...
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ORDER ON OBJECTION TO CLAIM # 11 THIS is a Chapter 7 liquidation case and the matter before the Court is an Objection to Claim #11 filed by the Chapter 7 Trustee (Trustee). Claim # 11 is filed by H.D. Roberts Real Estate Co., Inc. d/b/a Roberts Real Estate (Roberts) as an unsecured claim in the amount of $139,000.00. The Claim is based on a real estate commission allegedly due Roberts for locating...
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ORDER SUSTAINING CREDITORS’ OBJECTION TO EXEMPTIONS This matter came before the Court for hearing March 21, 1994, on Creditors’, Mary Kottis, Paul Burke, Harry Casey and William McManus (collectively the “Creditors”), Objection to Exemptions. The Creditors assert that the Debtor, Thomas DeFelice (the “Debtor”) has not been domiciled in the State of Florida for the 180 days immediately preceding ...
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MEMORANDUM OPINION This adversary proceeding was brought by the Debtor, PBR Communications Systems, Inc. (“Debtor”), to determine the validity of the claim of Jefferson Bank (the “Bank”) against the proceeds generated from the sale of the Debtor’s assets. The Bank seeks entry of a summary judgment determining that it has a valid and perfected security interest in the sale proceeds inc...
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ORDER This matter is before the court on the Third Amended Application of TelAmerica Corporation for Allowance and Payment of Administrative Claim for Services Rendered and Reimbursement of Expenses (the “Third Application”) filed June 15, 1993 pursuant to 11 U.S.C. § 503(b)(1), 503(b)(3)(D) and 503(b)(4). The Third Application seeks compensation and reimbursement of expenses in the f...
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ORDER Before the court is Defendant’s second motion for protective order. Currently pending in state court is a criminal proceeding which arises from essentially the same facts as Plaintiffs complaint to determine discharge-ability. As a result of Defendant’s prior assertion of his Fifth Amendment privilege against self incrimination, by order entered November 3, 1993, resolution of this adversa...
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CONTESTED MATTER ORDER ON MOTION FOR CONTEMPT Frank and Susan Cardillo, the debtors in this Chapter 7 case, (the “Debtors”) move for an order holding a creditor, Moore-Handley, Inc. (“Moore”), in contempt and imposing sanctions for violating the automatic stay. Without this court’s approval, Moore garnished Mr. Cardillo’s wages shortly after obtaining an order determining that a debt owed...
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MEMORANDUM OPINION This matter is before the Court on Motion to Retain Tax Refund filed by Sylvia Ford Brown (“Trustee”). This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(E). Based on the evidence presented to the Court, *156 Trustee’s motion will be denied. The Court publishes these findings of fact and conclusions of law in compliance with Fed. R.Bankr.P. 7052. FINDINGS OF FACT ...
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MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT The principal issue presented by these motions is whether, under Massachusetts law, G.L. c. 184, § 17, a Chapter 7 Trustee is bound by a prepetition judgment against the Debtor to partition by sale certain real property of which the Debtor is a co-owner, where the other co-owner recorded a notice of the partition action bu...
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Before the Court is the Debtor-Defendant’s Motion to Dismiss the above captioned adversary proceeding, under Fed.R.Bankr.P. 7012. The relevant, undisputed facts are as follows: On February 21, 1992, the Picture Group, Inc. and Gary Wagner entered into an agreement whereby the Picture Group agreed to license and market photographs taken by Wagner, and ...
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RULING ON MOTION OF FEDERAL DEPOSIT INSURANCE CORPORATION FOR EXTENSION OF TIME TO OBJECT TO DISCHARGE I. The Federal Deposit Insurance Corporation (FDIC), by motion filed on June 28,1994 in this Chapter 7 ease, requests a 180-day extension of time, from July 15, 1994 to January 16,1995, in which to file an objection to'discharge or dischargeability. The FDIC contends that Leonard Ginsberg, the ...
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DECISION ON MOTIONS TO DISMISS ADVERSARY PROCEEDINGS These proceedings, two of fourteen adversary proceedings commenced on February 15, 1994 by the Chapter 7 Trustee in bankruptcy of Ted A. Petras Furs, Inc. (“Debt- or”), were filed to recover alleged preferential transfers pursuant to section 547 of the Bankruptcy Code (“Code”) and Rule 7001(1) of the Federal Rules of Bankruptcy Proc...
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ORDER DENYING PARTIAL SUMMARY JUDGMENT, AND MEMORANDUM OF DECISION In this Adversary Proceeding two Chapter 7 Debtors, who had operated a business as partners, seek a determination of federal tax liability under 11 U.S.C. § 505, and additionally seek a determination that the Internal Revenue Service has violated the automatic stay provision, 11 U.S.C. § 362(a), by filing certain federal tax l...
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Before the Court are matters under 11 U.S.C. § 502(b). They are objections to three claims, totalling over $600,000, which were filed against the estate of this Chapter 7 Debtor, Cardon Realty Corporation. The claims have been filed by three Pension Funds seeking the unpaid balance of pension plan withdrawal liability under the “Multi-employer Pension Plan Amendments Act of 1980” (“MPPAA”), whi...
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OPINION AND ORDER ON RECONSIDERATION: By Memorandum Order dated June 2, 1994, I granted defendants’ motion to withdraw the reference of this adversary proceeding to the Bankruptcy Court. Plaintiffs subsequently filed a motion for reargument, pursuant to Local Rule 3(j), raising arguments that had not been previously considered. 1 Upon consideration of those arguments, ...
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MEMORANDUM DECISION DENYING MOTION FOR CONFIRMATION AND GRANTING MOTION TO LIFT AUTOMATIC STAY The debtor has sought confirmation of a plan of reorganization in this single-asset real estate Chapter 11 ease under the “cram-down” provisions of Bankruptcy Code § 1129(b). For the reasons more fully discussed below, the plan cannot be confirmed and the secured creditor’s motion to lift th...
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MEMORANDUM OPINION AND ORDER The matter before the court is the motion to dismiss filed by the defendant, Texas Department of Transportation (“DOT”). DOT alleges various reasons why this court does not have jurisdiction over this adversary proceeding, but the main issue is whether, under 11 U.S.C. § 106(a), DOT has waived its sovereign immunity by its conduct. The court concludes that DOT, by m...
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*207 MEMORANDUM OPINION The following are the Court’s Findings of Fact and Conclusions of Law pursuant to Bankruptcy Rule 7052, with respect to the trial of the above-referenced adversary proceeding. This case addresses the circumstances under which a business homestead exemption may extend to two or more non-contiguous lots. At the date of the filing of his bankruptcy petiti...
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OPINION AND ORDER EXCEPTING DEBT FROM DISCHARGE This matter is before the Court upon the adversary complaint of Charles P. Homan (“CPH”) which seeks to except the alleged debt of Joseph T. Perretti (“JTP”) from discharge under § 523(a)(6). The Court finds that the CPH’s complaint is well taken and that JTP’s debt to CPH should be excepted from discharge. FACTS The debtor JTP filed his pet...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Hearing on a Motion for Authority to Sell Personal Property Free and Clear of Liens brought by the Debtor and the Objections filed by the United States Trustee, State Home Savings Bank and Ewers-Bogojevieh and Company. The United States of America filed a Response. A Hearing was held in which the parties were afforded the oppo...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Plaintiffs Motion for Summary Judgment, Memorandum in Support, Reply, and Motion to Strike; and Defendant’s Motion in Opposition, Memorandum in Support, Motion for Summary Judgment, Memorandum in Support, and Final Reply. This Court has reviewed the arguments of counsel, exhibits as well as the entire record in the case. Bas...
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OPINION AND ORDER DISMISSING COMPLAINT TO DENY DISCHARGE AND COMPLAINT TO EXCEPT DEBT FROM DISCHARGE AND DENYING MOTION TO DISMISS BANKRUPTCY CASE This matter is before the Court on the Fahey Banking Co.’s (“Bank”) complaint to deny Steven Ray Parsell (“SRP”) a discharge pursuant to 11 U.S.C. § 727(a) and to except the debt owed by SRP to the Bank from *228 discharge under § ...
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OPINION AND ORDER GRANTING MOTION TO DISMISS This matter is before the Court on the United States Trustee’s (“UST”) motion to dismiss Lori Anne Christie’s (“LAC”) chapter 7 bankruptcy case pursuant to 11 U.S.C. § 707(b). Upon consideration of the evidence adduced at trial and the oral arguments of the parties, the Court finds that the UST’s motion is well taken and should be granted. The Court ...
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MEMORANDUM OF OPINION AND ORDER Kahn, Kleinman, Yanowitz & Amson, Co., L.P.A. (KKY & A) seeks an order altering or amending this Court’s Judgment Entry of August 1, 1994, 170 B.R. 329. Specifically, KKY & A requests that the Court amend its findings to reflect that the retainer paid by Debtor to KKY & A was a classic retainer, not property of the estate, and therefore subje...
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MEMORANDUM OF OPINION AND ORDER. EBP, Inc. (the Debtor), doing business as Epic Steel, is engaged in the business of producing structural, reinforcing and other steel products for multiple-family residential units and other commercial projects. The Debtor sought relief in this Court by filing its voluntary petition for relief under Chapter 11 of the Bankruptcy Code [11 U.S.C. 1101, et seq.]....
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MEMORANDUM ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The debtor, Randal Charles Fox, commenced this adversary proceeding by filing a Complaint on June 17, 1994, seeking a determination of the dischargeability of his federal income tax liabilities for 1985 and 1986.1 The Internal Revenue Service (IRS) responded on July 25, 1994, with a motion entitled “Motion to Dismiss for Failure to State a C...
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OPINION The Debtor filed a Motion to Set Aside Lien held by Columbus Auto Auction. Pursuant to an Order and Opinion entered by this Court on March 16, 1993, a state court judgment obtained by Plaintiff against the Debtor in the amount of $67,905.00 was declared to be nondischargeable to the extent of $23,190.00, and dischargeable as to the balance. The Debtor asks the Court to set aside the...
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ORDER DENYING MOTION TO DISMISS This Cause came before the Court upon the Motion to Dismiss, filed by the defendant on June 2, 1994, and amended on August 22, 1994. The motion alleges that the adversary proceeding was not filed within the statutory two-year limitations period. The debtor filed a Chapter 11 bankruptcy petition on April 28, 1992. This adversary proceeding was filed on A...
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ORDER OF REMAND THIS CAUSE is before the Court upon the plaintiff’s “Objection to Removal of State Court Action,” filed on August 12, 1994, which the Court will treat as a motion for remand, and the Trustee’s Motion to Intervene, originally filed in the state court proceeding. Inasmuch as the Court will remand this matter, adjudication of all other pending motions are better left to the discreti...
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ORDER DENYING MOTION FOR STAY PENDING APPEAL THIS CAUSE is before the Court upon the debtor’s Motion for Partial Stay of Order, filed on August 2,1994, to which the creditor, Carder Investments, Inc. responded. The debtor’s reply is also before the Court. I. THE NATURE OF THE PROCEEDINGS On July 26, 1994, the Court heard numerous motions pending in the bankruptcy ca...
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ORDER DENYING MOTION TO AMEND FINDINGS THIS CAUSE is before the Court upon the debtors’ Motion to Amend Findings of Fact and/or to Alter or Amend Judgment, filed on August 8,1994, to which the creditor Agribank, FCB (“Agribank”) responded on August 26, 1994. This Court previously ruled in this case that the forty acres1 upon which the debtors currently reside may not be claimed exempt as homeste...
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*265 SUPPLEMENTAL ORDER On June 25, 1993, the debtor, Jones Truck Lines, Inc., (plaintiff) filed this adversary-proceeding against Foster’s Truck and Equipment Sales, Inc. (defendant), to recover alleged preferential transfers under 11 U.S.C. §§ .547 and 550 in the sum of $114,-836.00. The court entered a default judgment in favor of the plaintiff on February 4, 1994. The defendant filed a “mot...
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MEMORANDUM OPINION Pending before the Court is Larry E. and Deborah J. Cummings’ (the debtors) Motion to Set Aside Discharge Order and Reopen Case to Accord Further Rehef to the Debtors filed on February 15, 1994. The Court held a hearing on May 2, 1994. The parties filed a Joint Stipulation of Facts on July 20, 1994. I. Jurisdiction The Court has jurisdiction over this pending matter p...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on the 2nd day of June, 1994, on a motion by Michael and Laurie Buck (“the Debtors”) to confirm modification of their chapter 13 plan, and on an objection to the motion by the Internal Revenue Service (“IRS”). Appearances were as follows: Michael Urbanos for the IRS; Ian T. Ball for the Debtors; and Stephen Cre...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on the 2nd day of June, 1994, on a motion by Christine Friauf (“Debtor”) to confirm modification of her chapter 13 plan, and on an objection to the motion by the Internal Revenue Service (“IRS”). Appearances were as follows: Michael Urbanos for the IRS; Ian T. Ball for the Debtor; and Stephen Creasey for the ch...
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ORDER Debtor filed a voluntary petition on December 15, 1992, and subsequently filed a motion to convert the case from Chapter 11 to Chapter 7 within the next ten days. The motion was granted and a panel trustee was appointed as the Trustee on December 28, 1992. The affairs of K.C. Aerospace, Inc. were inextricably linked to the affairs of Fortune Air, Inc., another corporation which filed bankr...
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MEMORANDUM OPINION Plaintiff brings this adversary proceeding claiming an award of attorney’s fees against Keith Alan Kline, debtor/defendant (“debt- or”), is excepted from discharge pursuant to 11 U.S.C. § 523(a)(5). 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...
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MEMORANDUM OPINION Chapter 7 trustee Jere L. Loyd (the “trustee”) objects to the exemption claimed by debtors in the structured settlement payments Mr. Walters receives. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B) 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, the trustee’s objection is SUSTAINED in ...
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ORDER ALLOWING AND SUBORDINATING CLAIM OF INTERNAL REVENUE SERVICE On February 2, 1994, the court held a hearing on the response of the Internal Revenue Service to an order to show cause for disallowance of its claim. Douglas S. Polsky appeared for the IRS and Gary D. Barnes appeared for the bankruptcy trustee. The court made an oral ruling from the bench on that day. The issue at the heari...
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ORDER ALLOWING DEBTORS TO CURE DEFAULT AND SUSTAINING DEBTORS’ OBJECTION TO CLAIM OF AGRIBANK, FCB A. INTRODUCTION This is a Chapter 13 case. Pending before the Court is a motion of the debtors for an Order allowing them to cure a default due creditor AgriBank, FCB, as well as debtors’ objection to the claim of AgriBank. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (B) over which...
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MEMORANDUM Before the court is the limited question of whether the debtor may limit the interest of Nebraska State Bank of Overton in the debt- or’s hay and cash collateral of hay to the value of the hay as of the date the bankruptcy case was commenced. This matter arose in connection with a Motion for Authority to Use Cash Collateral (Fil. # 4) and a Motion to Incur Secured Indebtedness (Fil...
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MEMORANDUM This case presents the question of whether a car is exempt property as an “immediate personal possession” under Nebraska Revised Statutes § 25-1556(1). Before the court is the Objection to Exemptions by the Chapter 7 Trustee and the debtor’s Resistance thereto. The Objection of the Trustee is sustained. I conclude that 1987 Cutlass Oldsmobile of the debtor is not exempt property un...
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OPINION The Federal Deposit Insurance Corporation (“FDIC”), as successor-in-interest, filed a complaint to determine the nondischarge-ability of debt pursuant to 11 U.S.C. §§ 523(a)(2)(A)1 and 523(a)(2)(B) of the Bankruptcy Code. The bankruptcy court determined that the debt owing to the FDIC was nondisehargeable under § 523(a)(2)(B) since it had reasonably relied on a materially false financia...
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AMENDED OPINION American Savings Bank (“American Savings”) filed a dischargeability complaint against the Debtor, Steven Frank Harvey, and brought the action to trial. The bankruptcy court entered a judgment in favor of the Debtor and awarded him attorney’s fees pursuant to 11 U.S.C. § 523(d) 3 . American Savings appeals the bankruptcy court’s decision awarding the Debtor a...
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MEMORANDUM OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING BANKRUPTCY COURT ORDER THIS MATTER comes before this court on appeal from a decision rendered by the *323 Bankruptcy Court for the Eastern District of Washington. A hearing on this appeal was heard with oral argument on September 9, 1994. Appellant was represented by J.T. Janecek; Debtor-Appellee was repre...
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MEMORANDUM OPINION FACTS AND BACKGROUND This matter is before the Court on the defendant’s motion for summary judgment of dismissal of the plaintiffs preference action. The primary issue, one of first impression in this District, is whether the debtor may pursue preference claims posteonfirmation, where the plan contains no reservation of rights or retention of jurisdiction to pr...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on September 12, 1994, on the Trustee’s Objection to the Debtor’s Claims of Exemptions. The facts are not in dispute. Debtors claim an exemption under C.R.S. § 13-54-102(1)© for thé cash surrender value for two life insurance policies. The total cash surrender value for both policies is less than $5,000.00. The statute involved pr...
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ORDER This case comes before the Court as an appeal from a decision of the United States Bankruptcy Court for the Western District of Oklahoma. Appellant, Charlotte Plotner, appeals Judge Lindsey’s June 16, 1994, decision denying her Application for Rejection of a Real Estate Contract, specifically challenging the sale price of the property. Appellee moves for dismissal of the appeal ...
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ORDER ON OBJECTION TO CONFIRMATION THIS IS a yet to be confirmed Chapter 11 case of Immenhausen Corporation (Debtor) and the matter under consideration is an Objection to Confirmation of the Plan filed by the Debtor, by Berliner Handels-und Frankfurter Bank (Bank), and the Debtor’s attempt to resort to § 1129(b) cram-down provision of the Bankruptcy Code in order to overcome the rejection...
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ORDER ON MOTION SEEKING A DETERMINATION OF TAX LIABILITY TO ST. PETERSBURG THIS is a confirmed Chapter 11 case and the matter before the Court is a Motion filed by Koger Properties, Inc. (Debtor) that seeks a determination of tax liability owed to the City of St. Petersburg (City). In its Motion, the Debtor seeks a determination as to what is the appropriate accrued rate of interest accru...
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ORDER ON APPLICATION TO EMPLOY STICHTER, RIEDEL, BLAIN & PROSSER AND JONES, DAY, REAV-IS & POGUE AS SPECIAL COUNSEL FOR TRUSTEE THIS is a Chapter 7 liquidation case and the matter under consideration is an Application to Employ Stiehter, Riedel, Blain & Prosser and Jones, Day, Reavis & Pogue (Law Firms) as Special Counsel for the Chapter 7 Trustee filed by Ralph Jay Harp-ley, the duly app...
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*357ORDER ON MOTION TO DISMISS COMPLAINT, TO STAY DISCOVERY AND FOR SANCTIONS THIS is a Chapter 7 liquidation case and the matter under consideration is a Motion to Dismiss Complaint, to Stay Discovery and for Sanctions, filed by Mobil Mining and Minerals Company (Mobil). In its Motion, Mobil seeks dismissal of the complaint, or in the alternative a stay of the discovery of this proceeding. The M...
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ORDER ON MOTION TO DISQUALIFY COUNSEL THIS is a yet-to-be confirmed Chapter 11 case and the matter under consideration is a Motion to Disqualify James Fetterman (Fet-terman) from representing Presidential Realty, Inc. (Debtor) as counsel of record in this Chapter 11 case. The Motion is filed by Moors & Cabot (Moors & Cabot), a creditor of the Debtor. In its Motion, Moors & Cabot contends that Fet...
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ORDER ON OBJECTION TO EXEMPTIONS THIS is a Chapter 7 liquidation case and the matter before the Court is the second aspect of an Objection to Claim of Exemptions, filed by Village of Cross Keys, Inc. (Cross Keys), a creditor of John and Rhoda Snape (Debtors). Cross Keys in its Objection initially urged two grounds based on which, according to Cross Keys, the Debtors are not entitled to re...
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*366 FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case and the matter under consideration is a Complaint filed by Eugene V. Allen (Trustee), who seeks to set aside a certain transaction by Mildred E. Crawford (Defendant). The Trustee’s claim for relief is set forth in his three Count Complaint. In Count I the Trustee seeks to avoid the transaction as a fra...
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ORDER ON MOTION FOR COSTS AND ATTORNEY’S FEES THIS IS a Chapter 7 case and the matter under consideration is a Motion for Costs and Attorney’s Fees filed by Richard Maes-trelli (Debtor), the Defendant in the above-captioned adversary proceeding. The facts relevant to the resolution of this controversy as they appear from the record are as follows: On November 30, 1992, Barnett Bank o...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court upon complaint filed by Harold M. and Sharon E. Mahon seeking denial of discharges of defendants pursuant to 11 U.S.C. § 727(a)(2), (a)(3) and (a)(4). A trial of this adversary proceeding was held on June 1, 1994, and upon the evidence presented the Court enters these findings of fact and conclusions of la...
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ORDER ON AMENDED MOTION FOR RELIEF FROM STAY BY SIMMIE BOWERS, JR. AND SHERYL BOWERS THIS IS the second attempt by Greater Jacksonville Transportation Company (Debt- or) to achieve rehabilitation under Chapter 11 of the Bankruptcy Code. The present matter under consideration is a Motion for relief from the automatic stay filed by Sim-mie Bowers, Jr. and Sheryl Bowers (Bowers) who seek relief fr...
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ORDER ON MOTION FOR RELIEF FROM STAY THIS IS a yet to be confirmed Chapter 11 case and the matters under consideration are two Motions both of which seek relief from the automatic stay imposed by § 362 of the Bankruptcy Code. The Motions are filed by Billy Ray Ary (Mr. Ary) and Emmanuel McClain (Mr. McClain), both citizens of Alabama and former employees of Jim Walter Resources (Debtor), an affili...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon objections by debtor and Enstar to claims 7 and 28 filed by the United States of America Internal Revenue Service (“IRS”). The Court held a hearing on May 19, 1994, and upon the evidence presented enters these findings of fact and conclusions of law: Findings of Fact From 1969 through October, 199...
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MEMORANDUM OPINION On June 9, 1994, the debtor, All American Manufacturing Corp. (“All American”) filed an adversary complaint (the “Complaint”) *396 against defendants, Quality Textile Screen Prints, Inc. (“Quality Textile”) and Vendor Funding Co., Inc. (‘Vendor Funding”). The Complaint seeks (1) a determination of the validity, priority and extent of any liens held by Vendor Funding and Q...
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SUPPLEMENTAL MEMORANDUM OPINION Before the Court is a motion for turnover of funds filed by Jonathan E. Kroner (“Kroner” or “Plan Trustee”), the successor administrator and trustee of the College Bound, Inc. 401(k) Retirement Plan and Trust (“the 401(k) Plan” or “Plan”). The Plan Trustee seeks turnover from the Chapter 11 Trustee of monies including both withheld employee contribution...
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ORDER Before the court is the motion of Munford, Inc. (“debtor”) for approval of compromise and settlement with Valuation Research Corporation (‘VRC”) pursuant to Federal Rule of Bankruptcy Procedure 9019(a). This settlement arises in connection with claims asserted in Adversary Proceeding No. 91-6417, styled Munford, Inc. v. Dillard Munford, et al., in which VRC is a co-de...
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172 B.R. 415 (1994) In the Matter of Gail K. WASHINGTON (Chapter 13 Case 92-40489), Debtor. Gail K. WASHINGTON, Plaintiff, v. INTERNAL REVENUE SERVICE and United States of America, Defendants. Adv. No. 93-4014. United States Bankruptcy Court, S.D. Georgia, Savannah Division. May 13, 1994. *416 *417 Wade Gastin, Savannah, GA, for plaintiff. James B. Thompson, Jr., Trial Atty., Tax Div., U.S. Dept....
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MEMORANDUM AND ORDER The trial of the above case was held on February 2,1994. After consideration of the evidence and applicable authorities I make *418the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT Debtor’s Chapter 13 case was filed March 9, 1992. Debtor properly scheduled the Internal Revenue Service (“IRS”) as a creditor in her case, and on March 10, 1992, the IRS ...
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MEMORANDUM DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT The issue before the court is the ownership of certain real property. Technical Land, Inc. (“Technical”) asserts title to the property by virtue of a marshal’s deed issued on January 7, 1993, pursuant to an execution sale on a judgment lien. The plaintiffs assert that this deed was ineffective to convey any interest to the deb...
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MEMORANDUM DECISION SUMMARY OF FACTS AND OF DECISION. 441 PRINCIPAL FINDINGS OF FACT. 444 DISCUSSION. 450 I. FAMILY FEDERAL’S CLAIMS AGAINST MANNING. 450 A. Compensatory Damage Claims. 450 B. Punitive Damage Claim. 455 C. Contribution Claim. 455 II. FAMILY FEDERAL’S CLAIM FOR DECLARATORY RELIEF. 455 A.Breach of Duty To Davises. 456 III.CLAI...
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OPINION BayBank asserts it lacks adequate protection of its security interest in rents from four commercial properties included under its mortgages and rent assignments. It moves for an order requiring G. Burton Mullen (the “Debtor”) to turn over to it all “net rents” (after expenses). Alternatively, BayBank requests an order requiring the Debtor to “segregate” the monthly net rents, ...
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172 B.R. 481 (1994) In re PINE VALLEY MACHINE, INC., Debtor. Bankruptcy No. 93-41924-HJB. United States Bankruptcy Court, D. Massachusetts. September 28, 1994. *482 *483 *484 James M. Lynch, U.S. Trustee. Christopher Alberto. G. Devon Bascomb. Paul R. Salvage. Steven Weiss. Jonathan R. Goldsmith. Peter M. Stern. Daniel C. Cohn. Martha A. Hildebrandt. Guy B. Moss. Francis S. Moran, Jr. Joel N. Ros...
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MEMORANDUM OF DECISION I. INTRODUCTION Before the Court is a motion for summary judgment filed by Plaintiffs, Elizabeth Brixi-us (“Brixius”) and Jeffrey Butler (“Butler”) (collectively, the “Plaintiffs”) against the Defendant, George C. Christian (the “Defendant” or “Debtor”) on a complaint to determine the nondischargeability of a debt under 11 U.S.C. § 523(a)(4). A. Fact...
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ORDER Heard on January 27, 1994, on the Creditor Committee’s Petition for Instructions regarding the disposition of $31,855.52 held in escrow with the Chairman of the Committee. The background and travel are as follows: More than five years ago, on June 19, 1989, the funds in question were delivered to Stephen Barrett, as Chairman of the Creditors’ Committee, for distribution to Class Four un...
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*503 MEMORANDUM OF DECISION AND ORDER ON TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTIONS I. Issue Code § 522(d)(ll)(D) permits a debtor to exempt “[t]he debtor’s right to receive ... a payment, not to exceed $7,500, on account of personal bodily injury, not including pain or suffering or compensation for actual pecuniary loss, of the debtor....” The question...
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MEMORANDUM AND ORDER ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF DEBT UNDER 11 U.S.C. SECTION 523(A)(5) The plaintiff seeks a determination that a certain hold harmless obligation created by a dissolution decree is nondischargeable under § 523(a)(5). For the reasons that follow, I find that the debt is nondischargeable. SCOPE OF INQUIRY Parties and state courts are increasing...
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DECISION RE TRUSTEE’S RIGHTS TO SURVIVING DEBTOR’S INTEREST IN REAL PROPERTY OWNED AS TENANT BY THE ENTIRETY This matter comes before the Court pursuant to an objection by James Rerisi (the “Debtor”) to the Chapter 7 Trustee’s motion to sell certain properties owned by the Debt- or and his non-filing, now-deceased wife and to retain the net sales proceeds for the benefit of the Debtor’s estat...
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DECISION ON MOTIONS REGARDING THE PROCEEDS FROM THE SALE OF THE DEBTOR’S MEDICAL PRACTICE INTRODUCTION Armando J. Solis, M.D. (“Solis” or the “Debtor”) moves, pursuant to 11 U.S.C. § 105(a), essentially, for a judgment declaring that the proceeds of the sale of his medical practice are not property of the estate. Jeffrey Sapir, the chapter 13 trustee (“Trustee”) objects and moves to modif...
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MEMORANDUM ORDER This case arises from an appeal from a bankruptcy court order of confirmation of the debtor’s Chapter 13 plan of February 5, 1992. The Appellant, the Estate of Mary Pasteur (“Estate”) objected to the bankruptcy court’s confirmation of the plan at a confirmation hearing on December 3, 1991, claiming that the plan modified the rights of the secured creditor regarding a debt secured ...
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OPINION COMES NOW before the Court pursuant to regular setting the Motion of Alfred S. Garcia and Rosie A. Garcia for Relief from Automatic Stay. 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 In March of 1989, Debtors purchased a certain tract of land ...
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ORDER SUSTAINING OBJECTION TO ORDER DIRECTING THE CORRECTION OF DEFECTIVE PLEADING I. In this case, 1 the Internal Revenue Service filed a “Request for Payment of Internal *539 Revenue Taxes,” (currently Form 6338 A(C) (Rev. 6-88)). This form asserts “Administrative Claims” for taxes due from the debtor, and requests payment. A copy was apparently served on the debtor. Because this “Req...
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MEMORANDUM OPINION DENYING CLAIMANT’S MOTION BASED ON 28 U.S.C. §§ 157(b)(2)(B) and 157(b)(5) TO TRANSFER DETERMINATION OF CLAIM TO THE DISTRICT COURT ISSUE This opinion decides the narrow and very limited question of whether a disputed, unliq-uidated claim for damages related to the termination of employment is a “personal injury tort” for purposes of 28 U.S.C. §§ 157(b)(2)(B) and 1...
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OPINION REGARDING CITY OF KENT-WOOD’S MOTION FOR SUMMARY JUDGMENTITO DISMISS/TO ABSTAIN I. ISSUES This adversary proceeding raises a number of complicated issues. Does this court have jurisdiction to hear, and render a final order or judgment in, this adversary proceeding, which was filed after confirmation of the Debtor’s chapter 11 plan of reorganization? Even if the court has ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon Debtor’s Motion to Avoid Lien pursuant to 11 U.S.C. § 522(f). The Court has reviewed the documents submitted and the relevant case law, as well as the entire record in this matter. Based upon that review, and for the following reasons, the Court finds that the Debtor’s Motion should be DENIED. FACTS In December of 1979, the Debtor...
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*571OPINION AND ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND SCHEDULING PRETRIAL HEARING UPON AMENDMENT TO BANKRUPTCY SCHEDULES This matter is before the Court upon William and Kathleen Long’s (the “Longs”) motion for relief from judgment (the “Motion for Relief’) from this Court’s order compromising claim dated June 23, 1994 (the “Order”). The Longs have also filed an amendment to their ban...
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OPINION AND ORDER DENYING MOTION TO AVOID LIEN This matter is before the Court upon Michael and Kelly Krueger’s (“Debtors”) motion to avoid a lien held by City Loan Financial Services (“CLFS”) in certain furniture (the “Furniture”) acquired with the proceeds of a loan obtained from CLFS. The Court finds that the Debtors’ motion is not well taken and should be denied. FACTS T...
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MEMORANDUM This bankruptcy appeal involves the nature of criminal restitution versus civil recovery and collateral estoppel with regard to the dischargeability of a debt incurred as a result of bank fraud. The Bankruptcy Court held that it could not order civil recovery because in a prior criminal hearing, the District Court had not imposed criminal restitution. For the following reasons, thi...
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MEMORANDUM OPINION AND ORDER This case is before the court on the appeal of the State of Illinois Department of Revenue (“Department”) from the United States Bankruptcy Court for the Northern District of Illinois. In re Stoecker, 151 B.R. 989 (Bankr.N.D.Ill.1993) (Squires, J., presiding). The principal issue in this case is whether Rule 3002 of the Federal Rules of Bankruptcy Procedure (“Rule__...
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MEMORANDUM OPINION I. INTRODUCTION The Debtors, Aargus Polybag Co., Inc., Imperial Bag Co., Inc., and Sac Pak, (herein referred to as the “Debtors”) were manufacturers of polyurethane goods. The plaintiff in this adversary proceeding is one of the Debtors, Aargus Polybag Co., Inc., (“Aar-gus”). Commonwealth Edison Co., Inc., (“Commonwealth Edison”) supplied electricity to Aargus ...
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OPINION Prior to the filing of her Chapter 7 proceeding in bankruptcy, the Debtor was involved in an automobile accident with Mary Sharp (SHARP). The Debtor was insured by The Farmers Automobile Insurance Association (FARMERS), with the policy providing in part as follows: OUR RIGHT TO RECOYER PAYMENT. B. If we make a payment under this policy and the person to or for whom payme...
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ORDER Background Leonard Rolfe and Laura Lee Kuebler filed a voluntary bankruptcy petition under Chapter 13 of the Bankruptcy Code on January 20,1989. They listed the Internal Revenue Service (IRS) as a creditor with a pre-petition priority tax claim of $65,025.18 for tax years 1983 through 1988. This claim was designated as a disputed claim, although it is unclear whether the debtors dis...
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*599 ORDER On January 31, 1994, this Court, sua sponte, issued an order for Ron L. Goodman (Goodman) to appear and show cause why he should not be sanctioned for violation of Bankruptcy Rule of Procedure 9011 and/or referred to the Arkansas Committee on Professional Responsibility for preparing and filing a bankruptcy petition containing false statements. A hearing...
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ORDER On the July 9, 1991, Jones Truck Lines, Inc. (Jones) filed a voluntary petition for relief under the provisions of Chapter 11 of the United States Bankruptcy Code. On July 7, 1993, Jones filed a complaint for turnover of property and for money judgment against IXL Manufacturing Company, Inc. (defendant). Jones sought to recover the sum of $15,703.34, plus interest, representing ...
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ORDER DENYING MOTIONS FOR DISMISSAL OF CHAPTER 7 CASES These Chapter 7 cases are before the Court on motions of creditors for dismissal pursuant to 11 U.S.C. § 707(a). In re Zubeida Khan, BKY 93-36058, the Court convened an evidentiary hearing on the motion of the Bank of Montreal (“the Bank”) on April 21, 1994. The Bank appeared by its attorney, Matthew R. Burton; Debtor Zube...
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MEMORANDUM This adversary proceeding concerns the dischargeability of a debt that may arise from a pending claim for alleged intentional interference with business relations, breach of fiduciary duty, and appropriation of good will (See A93-4110, A93-4116, and District Court Case No. 4:CV93-3163). Before the court is the Motion for Summary Judgment by the defendant-debtor, Dennis R. W...
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MEMORANDUM This adversary proceeding concerns the dischargeability of a debt that may arise from a pending claim for alleged intentional interference with business relations, breach of fiduciary duty, and appropriation of good will (See A93-4111, A93^4116, and District Court Case No. 4:CV93-3163). Before the court is the Motion for Summary Judgment by the defendant-debtor, Marlon A. M...
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OPINION OVERVIEW Appellant Airwork Corp. repaired the debtor’s damaged aircraft engine. The debt- or moved the court to release to Airwork the insurance proceeds payable to the debtor for the loss. The unsecured creditors committee and Safeco, a secured creditor with an interest in both the engine and the insurance proceeds, resisted the motion. Airwork offered various theories t...
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ORDER DISMISSING APPEAL AS MOOT INTRODUCTION On June 6,1994, the court heard the United States’ appeal of the bankruptcy court’s issuance of an injunction. John Pirkle appeared on behalf of the United States. The appellees, who are proceeding in pro per, did not appear at the hearing. After considering the papers submitted and oral argument, the *645 court dismisses the appeal as moot. The ...
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MEMORANDUM AND ORDER I. INTRODUCTION This matter is before the court on Wiston XXIV Limited Partnership’s (“Wiston”) motions to alter or amend judgment (Doc. 30), stay the July 15, 1994, Memorandum and Order pending disposition of its motion to alter or amend (Doc. 29), and expedite decision on its motion to stay (Doe. 32). Baleor Pension Investors V (“Baleor”) opposes. ...
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MEMORANDUM OPINION At Orlando, in said district on the 21st day of June, 1994 before Arthur B. Briskman, Bankruptcy Judge. This matter came on for hearing on the Debtor’s Objection to Proofs of Claim 5 and 6 of the United States of America, Internal Revenue Service. Appearing was the Debt- or, Johnny L. Crockett, his attorney, Andrea A. Ruff, and Richard Palmer, Chapter 13 Trustee. After review ...
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ORDER ON MOTION TO DISMISS THIS IS a Chapter 7 case and the matter under consideration is the right of Joseph Creazzo (Debtor) to obtain relief under Chapter 7 of the Bankruptcy Code. The challenge is presented by a Motion to Dismiss filed by Thomas E. Duvoisin, Liquidating Trustee (Liquidating Trustee) who seeks a dismissal of the Debtor’s Chapter 7 case for “cause” pursuant to § 707(a) of the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon motion of Osprey International, Ltd. (“Osprey”) to permit election of stock. The Court held a hearing on the motion on March 17, 1994. Upon the evidence presented, the Court enters these findings of fact and conclusions of law: Findings of Fact Osprey filed an -unsecured claim in the amount of $198,382.21. Debt...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court upon the complaint of AT & T Universal Card Services Corporation seeking to except a debt from discharge pursuant to 11 U.S.C. § 523(a)(2)(A). A trial was held on July 27, 1994. Upon the evidence presented the Court enters the following findings of fact and conclusions of law: Findings of Fa...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the chapter 7 trustee’s motion for civil contempt and sanctions against Richard Jaffe and the Jaffe Corporation as General Partner of J-3 Land Partners, Ltd., for violation of the automatic stay imposed by lí U.S.C. § 362(a). Hearings on the motion were held January 25, March 24, April 7, and May 17,1994, and, ...
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MEMORANDUM OPINION At Orlando, in said District on the 22nd day of June, 1994, before Arthur B. Brisk-man, Bankruptcy Judge. Andrew Baron appeared for the Debtor. John Meininger appeared for the Trustee. The Trustee objected to the Debtor’s claim of exemption pursuant to Title 11 U.S.C. § 522 and Fla.Stat.Ann. §§ 222.29-.30. *674 FINDINGS OF FACT ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court upon a complaint filed by Charles W. Grant, Chapter 7 Trustee. The nineteen-count complaint seeks to determine the priority, validity and extent of liens, avoidance of hens pursuant to 11 U.S.C. § 545(2), avoidance of preferential and fraudulent transfers pursuant to 11 U.S.C. §§ 547, 548 and 544(b...
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ORDER ON CREDITOR’S MOTION FOR REHEARING AND RECONSIDERATION OF ORDER DETERMINING CREDITOR IN CONTEMPT FOR VIOLATION OF THE AUTOMATIC STAY THIS CAUSE came before the Court on May 31, 1994 upon the motion of Creditor Stanley B. Branham (“Branham”) for rehearing or reconsideration of the Court’s Order of April 5, 1994 determining Branham in contempt for violation of the automatic stay. The ...
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ORDER This adversary proceeding is before the Court on the plaintiffs motion for a preliminary injunction. Plaintiff seeks to enjoin the defendants from erecting a fence or any form or manner of barricade on the debtor’s property which would prevent traffic from crossing debtor’s property when going from one portion of plaintiffs property to another por*692tion of plaintiffs property. After cons...
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ORDER Jeffrey Brown, a creditor, objects to confirmation of the debtor’s proposed Chapter 13 plan. Based on the evidence presented at hearing, I make the following findings. FINDINGS OF FACT The debtor, Joy Davis, was formerly married to Jeffrey Brown. During the marriage, the parties built a house on 3.08 acres of jointly-owned land situated in the middle of land owned by debtor’s moth...
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MEMORANDUM OPINION This matter is before the Court on Objection To Allowance Of Claim filed by Jimmy W. Clark (“Debtor”). This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B). Based on the evidence presented to the Court, Debtor’s objection will be overruled. The following findings of fact and conclusions of law are published in compliance with Fed.R.Bankr.P. 7052. ...
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ORDER DENYING DEBTOR’S MOTION TO QUASH NOTICE OF RENEWED § Ski MEETING, AND REQUEST FOR EXPEDITED HEARING Before the Court is the Debtor’s Motion to Quash Notice of Renewed § 341 Meeting and Request for an Expedited Hearing by Teleconference on the Motion. It is the Debtor’s position that the Trustee’s Notice of Renewed § 341 Meeting should be quashed, on the ground that the Trustee i...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the objection filed by the Chapter 7 Trustee (the “Trustee”) to the Debtor’s claimed exemption in individual retirement accounts. The objection raises the following issue: Is property held in an individual retirement account (“IRA”) exempt from property of the estate pursuant to 11 U.S.C. § 522(d)(10)(E), and, if so, to what extent is ...
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OPINION This is a preference case brought by the chapter 7 trustee of Farrell & Howard Auctioneers, Inc. (the “Debtor”), a licensed aue- *713 tioneer. Among the defenses of Lawrence Lynch Corp. (the “Defendant”) is the contention that the payment in question came not from funds of the Debtor but rather from either the Defendant’s funds or funds of others whose property th...
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172 B.R. 718 (1994) In re Katherine M.J. McGREGOR, a/k/a Mary Jo K. Higginbotham, Debtor. Bankruptcy No. 94-41302-JFQ. United States Bankruptcy Court, D. Massachusetts. October 21, 1994. *719 Ralph Stein, Salem, NH, for Katherine M.J. McGregor. Richard Askenase, Shapiro & Kreisman, Framingham, MA, for Countrywide Funding Corp. OPINION JAMES F. QUEENAN, Jr., Chief Judge. Katherine M.J. McGreg...
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OPINION AND ORDER Before the Court is defendant, The United States Environmental Protection Agency’s (“EPA”) motion for withdrawal of reference of Adversary Proceeding 94-0070 and plaintiffs’ opposition thereto. Defendant’s motion is based on 28 U.S.C. § 157(d). For the reasons set forth below, the Court denies the motion for the Withdrawal of Reference. FACTUAL BACKGROUND ...
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DECISION AND ORDER DENYING CONFIRMATION OF DEBTOR’S PLAN This cause was heard before the Court on Confirmation of the Debtor’s plan of reorganization to which objections were filed by the Debtor’s largest secured creditor. The Court, having reviewed the submission of documents and exhibits, the testimony of witnesses, and the argument of counsel, makes the following findings of fact and c...
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In all aspects of life, humankind strives to achieve a state of being in which the whole equals more than the sum of its parts. At times, however, we are left with disjointed parts having only a resemblance to the original whole. Such a condition is common to bankruptcy, but seldom so graphically as in the present case. Moog Employees Federal Credit Union initiated this adversary proceeding to ...
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Drunken driving is a plague that persists as a threat to the health and safety of all Americans. Even before the advent of the automotive age, legislatures recognized the dangers of alcohol abuse and sought through legislation to curb this problem. One of the earliest of these attempts was the Dram Shop Act. 1 More recently, Congress has attempted to restrict the dischargeability of ...
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MEMORANDUM OPINION AND ORDER In this Chapter 11 bankruptcy case I am asked to withdraw the reference to the bank- *752 raptey court for the Southern District of New York with respect to an adversary proceeding filed by the Debtors’ Trustee, James P. Hassett (the “Trustee”), against defendant BancOhio National Bank (“BancOhio”). BancOhio moves to withdraw the reference. Fo...
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MEMORANDUM DECISION REGARDING OBJECTION TO DEBTOR’S EXEMPTIONS The Trustee and Olympic Towers Condominium object to the Debtor’s exemption claims — other than the exemption for domestic animals and food — either because the exemptions are not permitted by law, or should not be permitted unless the Debtor provides more specific information from which the parties can determine if the claime...
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DECISION ON PLAINTIFF’S REQUEST FOR A DEFAULT JUDGMENT AND DEFENDANT’S REQUEST FOR LEAVE TO FILE A LATE ANSWER Ambassador Factors Corporation (“Ambassador”), the plaintiff, seeks the entry of a default judgment in this nondisehargeability action commenced against the Chapter 7 debtor, David James Roth. In sum, Roth has yet to submit an answer or otherwise move notwithstanding that the com...
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MEMORANDUM of DECISION Before the court is the appeal of Federal Home Loan Mortgage Corporation (“Freddie Mae”) from the June 15, 1994 order of the United States Bankruptcy Court for the Eastern District of Pennsylvania confirming the, Debtors, Chapter 11 plan of reorganization. Freddie Mae contends: (1) the plan incorrectly classified Freddie Mae’s claim under 11 U.S.C. § 1122; (2) the plan ...
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OPINION Before this Court are the contested fee applications of various professionals who provided services in the above bankruptcy case. 1 Applying for approval of fees and reimbursement of expenses are counsel to the Debtor, Obermeyer, Rebmann, Maxwell and Hippel (“Obermeyer”); counsel to the Committee for Unsecured Creditors (the “Committee”), Adelman, Lavine, Gold and L...
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OPINION A INTRODUCTION Presently before this court in the above-captioned adversary proceeding (“the Proceeding”), instituted by DOWNINGTOWN INDUSTRIAL & AGRICULTURAL SCHOOL (“the Debtor”) in the course of its Chapter 11 bankruptcy case, are two separate identical motions to dismiss the Proceeding (“the Motions”), one filed jointly by Defendant COMMONWEALTH OF PENNSYLVANI...
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THIS MATTER is before the Court on appeal from the Bankruptcy Court’s order, *829filed May 11, 1993 granting Appellee’s motion summary judgment against Appellants. Appellants’ brief was filed April 19, 1994. Appellee responded in a brief filed June 21, 1994. The Court has conducted a careful and thorough de novo review of the legal conclusions rendered by the Bankruptcy Court and has conducted a s...
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MEMORANDUM OPINION This matter comes before the Court on National Enterprises, Inc. Liquidating Trust’s complaint to avoid alleged preferential transfers of certain assets to Associates Leasing, Inc. (“Associates”). This Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 157(b)(2)(F) and 1334. Venue is appropriate pursuant to 28 U.S.C. § 1409. Upon consideration of the ar...
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Before the Court is defendant, Oil Transport Company, Inc.’s Motion for Dismissal Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The defendant’s motion is based upon its belief that 11 U.S.C. § 362(a)(1), which grants an automatic stay against the commencement or continuation of judicial actions against debtors involved in bankruptcy proceedings, controls here. Plaintiff, th...
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MEMORANDUM RULING AND ORDER Pending before this Court is an appeal from the United States Bankruptcy Court for the Western District of Louisiana brought by Joseph and Alicia Solito. For the following reasons, the Bankruptcy Court’s decision is AFFIRMED. FACTS On January 30, 1987, Joseph and Alicia Solito filed a petition for relief under Chapter 13 of the United States B...
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RULING These adversary proceedings arose in connection with the bankruptcy cases of eight related debtors. 1 The trustee of the debtors’ estates began to investigate the law firm that provided pre-petition legal service to the debtors, and the firm instituted adversary proceedings for a declaration that it committed no actionable wrong in connection with the debtors’ represe...
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MEMORANDUM OF OPINION ON SETOFF OR RECOUPMENT The issue in this matter is whether prepet-ition credit card billing offsets and cash re- *847 eeived by Conoco, Iric. (Conoco) within 90 days prior to bankruptcy are permissible re-coupments or whether they are offsets prohibited by § 553 of the Bankruptcy Code. 1 The court finds that the $179,681.77 Conoco took was an...
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MEMORANDUM OPINION ON FIRST AND FINAL APPLICATION OF McNERY & VOELKER, P.C. FOR COMPENSATION FOR THE PERIOD AUGUST 2,1993 THROUGH FEBRUARY 28, 1994 Came on for hearing on April 20, 1994 the First and Final Application of McNery & Voelker, P.C. for Compensation in the above-styled and numbered case. After hearing the evidence and arguments of counsel, the court took the matter under ad...
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MEMORANDUM OPINION This matter comes before me on Debtor’s First Motion to Modify Chapter 13 Plan After Confirmation (“Motion to Modify”) filed by Ruby Lee East (“Debtor”) on March 25, 1994. Mellon Mortgage Company (“Mellon”), a secured creditor in the case, has filed an objection to Debtor’s proposed modification. After having conducted a hearing on the motion on April 18, 1994, I took the m...
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OPINION AND ORDER This cause is before the Court on appeal from the Bankruptcy Court pursuant to 28 U.S.C. § 158(a). Although a bankruptcy judge’s findings of fact are not set aside unless clearly erroneous, conclusions of law are subject to de novo review. See Bankruptcy Rule 8013; In re Comer, 723 F.2d 737, 739 (9th Cir.1984). On November 4, 1992, Judge Krasniewski issued an order vacat...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Plaintiffs Motion for Summary Judgment. The Court has reviewed the written arguments of Counsel, affidavits, exhibits, as well as the entire record in the case. Based upon that review, and for the following reasons, the Court finds that Plaintiffs Motion for Summary Judgment should be Granted. FACTS On June 17, 1993 ...
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MEMORANDUM This is a battle between the debtor, a garnishing creditor and the Chapter 7 trustee over unpaid alimony owed to the debtor. Because garnishment of unpaid alimony is not prohibited by Tennessee law and because a Tennessee debtor’s exemption in unpaid alimony is effective only with respect to alimony that becomes due more than 30 days after assertion of the exemption, the garnishing cre...
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MEMORANDUM OPINION AND ORDER Plaintiff Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund, et al. bring this action pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”). Presently before the court is defendant Tasemkin, Inc.’s motion to dismiss. For the reasons set forth below, Tasemkin’s motion is granted. I. Background ...
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MEMORANDUM OPINION AND ORDER On September 11,1989, a fire damaged the budding and contents of Mt. Calvary Baptist Church on Chicago’s south side. One week later, defendant Mount Calvary Baptist Church (“Mt. Calvary”) filed for bankruptcy in United States Bankruptcy Court for the Northern District of Illinois. In November 1989, plaintiff Church Mutual Insurance Company (“Church Mutual”) filed su...
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MEMORANDUM OPINION These matters come before the Court on Count I of the complaint of Laura M. Gryne-vich (“Ms. Grynevich”) against Michael P. Grynevich (the “Debtor”) pursuant to 11 U.S.C. § 523(a)(6) for the determination of the dischargeability of a certain debt, and on the Debtor’s petition for payment of his attorney’s fees pursuant to 11 U.S.C. § 523(d). For the reasons set...
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172 B.R. 894 (1994) In re Robert M. BERG, d/b/a Berg Heating, Air Conditioning & Sheet Metal, Debtor. Robert M. BERG, Plaintiff, v. Scott TUROW, Annette Turow, Wayne Kibar, Kathleen Kibar, Richard Alan Ginkowski and Robert J. Jambois, District Attorney, Kenosha County, Wisconsin, His Assistants, Employees, Agents and Successors, Defendants. Bankruptcy No. 92-24793-DEI. Adv. No. 94-2260. Unite...
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MEMORANDUM ORDER This proceeding came on for trial on June 17 and 20, 1994. Sue Ann Nelson, Molly Shields and Mary Jane Miller appeared for the plaintiffs. Thomas Linguanti and John A. Marrella appeared for defendant United States of America and Francis C. Ling appeared for defendant State of Minnesota. This court has jurisdiction pursuant to 28 U.S.C. § 157(a), 28 U.S.C. § 1334, 11 ...
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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 *917 U.S.C. § 157(b)(2)(I), which the Court may hear and determine. PROCEDURAL BACKGROUND ...
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ORDER This matter is before the Court on the “First Amended Complaint for Turnover, Accounting and Payment of Money Owed”, filed on behalf of Charles W. Riske (“Trustee”), and the Trustee’s “Motion for Summary Judgment”. The Trustee has requested that Luther Oliver (“Debtor”) be ordered to turn over to the Trustee the sum of $94,768.53 in tax refunds received by Debtor after the commencement ...
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MEMORANDUM OPINION This adversary proceeding was filed by Brenda Ford (“plaintiff’), the former wife of debtor/defendant Jonnie W. Buckallew (“debtor”)1. Plaintiff claims a judgment debt incurred during the parties’ divorce in the amount of $13,000.00 is nondisehargeable. 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(...
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OPINION OVERVIEW The Appellant Karen Raiman, a Chapter 7 Debtor, filed a motion to enforce discharge in the bankruptcy court relating to certain tax claims asserted against her by the California State Board of Equalization. In addition, Debtor requested compensatory sanctions be imposed against the creditor. The bankruptcy court found that the tax claims were not dischargeable and en...
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ORDER REVERSING DECISION OF BANKRUPTCY COURT; ORDER OF REMAND ISSUE This appeal from the bankruptcy court’s dismissal requires the Court to determine when the statute of limitations under 11 U.S.C. Section 546(a) begins to run. For the reasons herein discussed, the Court reverses the dismissal and remands this action to the bankruptcy court. INTRODUCTION Plaintiff/appellant...
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OPINION Debtor, whose sole asset is an office building that is substantially overencumbered, attempts to confirm a plan of reorganization under the “new value” exception to the absolute priority rule. I conclude that the plan is not fair and equitable, whether or not it satisfies .the new value exception, because it does not serve recognized goals of reorganization, and because it wou...
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MEMORANDUM DECISION What is a law-abiding bank to do? It obeyed state law and froze $541 when served with a facially valid writ of execution. Now the debtor demands that the bank pay $10,-000 in punitive damages on the theory that honoring a writ of execution violated the bankruptcy discharge injunction with respect to a debt that the debtors had intentionally omitted from their bankruptc...
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ORDER This is a bankruptcy appeal challenging Bankruptcy Judge Higdon’s November 30, 1993 order overruling the debtors’ objection to the claim of the Internal Revenue Service (IRS). In late 1978 or early 1979, the debtors hired an attorney, Maxwell Berg, who specialized in tax planning. Mr. Berg developed a tax shelter investment plan which required his clients to invest in sham master recording ...
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MEMORANDUM OPINION This matter comes before the Court on the motion of the Official Committee of Unsecured Creditors in the case of For You Management & Development Corporation (the “Committee”) seeking, inter alia, dismissal of this Chapter 11 proceeding on the ground of bad faith. The facts are set forth below. 1 I. FACTS This case was filed by the debtor on...
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MEMORANDUM OPINION A hearing was held September 30,1994 on the debtor’s objection to claims filed by the Washington State Employment Security Department (“ESD”), the Department of Labor and Industries (“L & I”), and the Department of Revenue (“DOR”),1 referred to collectively herein as the “State.” The debtor objects not to the amount of the claims but to the priority of the penalty portions of t...
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MEMORANDUM OPINION In this matter, Pacific Northwest Group A (“PNGA”) seeks allowance and payment of an administrative claim under 11 U.S.C. § 365(d)(3) 1 . The claim arises out of the debtor’s rejection of a Lease Agreement, dated February 1, 1993 (the “Lease”), between the debtor as lessee and PNGA as lessor. PNGA claims that under Section 365(d)(3) it is entitled to payment ...
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ORDER Now before the Court is Donald Taylor’s (“Debtor’s”) appeal of a final order of the United States Bankruptcy Court for the Northern District of Oklahoma, 155 B.R. 543, entered June 22, 1993. The district court acts as an appellate court when reviewing a decision of the bankruptcy court, the decision representing a conclusion of law subject to de novo review. 28 U.S.C. Section 158(a).1 In d...
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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT BACKGROUND AND UNDISPUTED FACTS On May 2,1986, debtors and Lumbermen’s Investment Corporation (“LIC”), the mortgagee on debtors’ principal residence, entered into a mortgage agreement on debtors’ principal residence. On March 30, 1989, debtors filed their voluntary petition for relief under Chapter 13 of the Bankruptcy Code. 1 ' On the same date...
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MEMORANDUM OPINION AND ORDER I. Introduction This adversary interpleader proceeding was commenced by a complaint filed October 7, 1992, in the United States Bankruptcy Court under Bankruptcy Rule 7022. Rule 7022 applies Rule 22 of the Federal Rules of Civil Procedure to bankruptcy adversary proceedings. 1 Plaintiff, Busch-Provo Limited Partnership (“Busch-Provo”), paid int...
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ORDER This matter is before the Court on a complaint filed by the plaintiffs, Danny Ray Singleton and Betty Ann Singleton, seeking the Court to determine that certain student loans are dischargeable pursuant to 11 U.S.C. § 523(a)(8)(B). The trial in this matter was held on the 15th day of September, 1994. From the evidence presented, the Court makes the following findings of fact. Th...
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MEMORANDUM OPINION At Orlando, in said District on the 15th day of August, 1994, before Arthur B. Brisk-man, Bankruptcy Judge. Stephen Milbrath and Peter Hill appeared for the Debtor. Michael Levin appeared for LSL Biotechnolo-gies, Inc. Debtor seeks confirmation of his Chapter 13 plan pursuant to 11 U.S.C. § 1325. LSL Biotechnologies, Inc. moved to dismiss. FINDINGS OF FA...
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ORDER AFFIRMING DECISIONS OF THE BANKRUPTCY COURT GRANTING MARITIME LIEN CLAIMS IN FAVOR OF C.L.C. MARINE SERVICES, INC. AND C.L.C. MARINE SERVICES, LTD. This matter concerns three separate appeals in the Chapter 11 bankruptcy case of SeaEseape Cruises, Ltd. In the appeal designated as Case No. 94-OllO-CIV-ARONO-VITZ, Skandinaviska-Enskilda Banken (“SE Banken”) appeals from the Findin...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT MSI Financial Group, Inc., (“MSI” or the “Plaintiff”) brings this adversary proceeding against the debtor Douglas C. Mullins (the “Debtor” or the “Defendant”) for a judgment denying the Debtor’s discharge and determining that a debt owed by the Debtor to the Plaintiff is not dischargeable. The Defendant moves for summary judgment on the grou...
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ORDER By motion defendants seek dismissal of this adversary proceeding and a related objection to the claim of Easy Money Title Pawn, Inc. filed by the debtor-plaintiff in the underlying Chapter 13 ease. Plaintiffs complaint alleges violation by the defendants of the Georgia Criminal Usury Statute (O.C.G.A. § 7-14-18), Georgia Racketeer Influenced and Corrupt Organizations Statutes (O...
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