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All Reporters → br → Volume 178

Opinions in br Volume 178

MEMORANDUM This matter came before the Court upon the Trustee’s complaint to revoke the Debtors’ discharge pursuant to 11 U.S.C. § 727(e)(1). 1 The Court, having reviewed the pleadings, heard the evidence, and being otherwise fully advised finds that the trustee has not proved that the debtors obtained their discharge through fraud and, therefore, the complaint should be dismissed. FACTS ...
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MEMORANDUM OPINION This matter comes to be heard upon the motion of the IRS to dismiss Debtors petition for relief under Chapter 13 because Debtors owe in excess of $250,000.00 in noncontin-gent, liquidated, unsecured debt. This Court having now considered the operative facts and the arguments of counsel finds as follows. Statement of Facts On September 27, 1994, the IRS se...
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ORDER This matter is before the Court on an objection to confirmation filed by Merchants Bank (the “Bank”). Oral arguments were presented to the Court on the 11th day of January, 1995. BancBoston holds a first mortgage on the debtor’s residence. No arrearage is owed on this debt, and the debtor proposes to pay this mortgage directly as it becomes due. The claim of the Bank is secured by a sec...
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178 B.R. 9 (1994) In re Clifford RIVERS, f/d/b/a Clifford Rivers Logging, Debtor-Plaintiff, v. UNITED STATES of America, By and Through its agency, the INTERNAL REVENUE SERVICE, Defendant. Civ. A. No. 94-0383-BH-M. Bankruptcy No. 93-11349. Adv. No. 93-1295. United States District Court, S.D. Alabama, Southern Division. October 28, 1994. *10 Theodore L. Hall, Mobile, AL, for Clifford Rivers. Carol...
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ORDER This action is before the Court on appeal of debtor-plaintiff, Clifford Rivers (Rivers) f/d/b/a Clifford Rivers Logging, from a determination that he will not be granted a discharge in Bankruptcy for certain tax obligations which he owes to the United States, namely the tax obligations for 1985,1986 and 1987.1 The Bankruptcy Court so determined *11because it found that Rivers filed fraudul...
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ORDER ON OBJECTION OF UNITED STATES TRUSTEE TO CONFIRMATION OF CHAPTER 11 PLAN THIS CAUSE came on to be heard on January 12,1995, at the confirmation hearing on the Debtor’s First Amended Plan of Reorganization (the “Plan”). Objections to the Plan were filed by the United States Trustee (the “UST”) and by Curt Ogden Equipment Co. (“Ogden”), the largest creditor of this estate. Ogden, ...
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MEMORANDUM OPINION This matter is before the Court on motion by Dolores Jean Sumner (“Debtor”) to determine the value of security and the extent of a creditor’s allowed secured claim on residential real estate pursuant to 11 U.S.C. § 506. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(K). These findings of fact and conclusions of law are published in compliance with...
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*21 DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT Under the court’s consideration are cross motions for summary judgment on the plaintiffs nondischargeability complaint. For reasons explained below, the plaintiffs motion for summary judgment will be granted. BACKGROUND FACTS The plaintiff, Old Republic Surety Company, as surety on behalf of the defendant-debtor...
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DECISION ON MOTION FOR POSSESSION AND PAYMENT OF ADMINISTRATIVE RENT CLAIM This matter is before the Court on the motion of Mellon Financial Services Corporation # 1 (“Mellon”) for an order seeking immediate possession of certain premises now or formerly leased and occupied by Thinking Machines Corporation (“Debtor”). Mellon also seeks payment of an administrative rent claim. At the hearing i...
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OPINION Fleet Credit Corporation (the “Creditor”) moves for approval of its agreement with Cambridge Biotech Corporation (the “Debt- or”) granting it relief from the automatic stay with respect to bank accounts which the Debtor assigned to it as security for its loan obligation. The Official Unsecured Creditor’s Committee (the “Committee”) objects to the motion, asserting the Creditor...
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RULING ON MOTIONS TO DISMISS This litigation arises out of the sale of limited partnership interests in various real estate properties by Colonial Realty Company (“Colonial”) and its general partners, Jonathan Googel, Benjamin Sisti, and Frank Shuch (collectively, “the debtors”), during the 1980’s. In this action, the trustee for the consolidated estate of Colonial, Googel and Sisti h...
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MEMORANDUM OF DECISION RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I. ISSUE The plaintiff contends in her motion for summary judgment that a judgment she received in state court is non-disehargeable under § 523(a)(2)(A) as a debt arising from the debtor-defendant’s fraud and that the state-court judgment should be given collateral estoppel effect in the bankruptcy court. The debtor resp...
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MEMORANDUM OPINION AND ORDER In this adversary proceeding, four of the defendants, C.U. Technologies, Inc. (CUT), Nanook Enterprises, Inc., The Computer Group, Ltd., and Armond Schroeder (“the CUT group”), move to dismiss pursuant to Bankruptcy Rules 7012(b)(1) and 7012(b)(6). The CUT group moves in the alternative to transfer venue to the United States District Court for the Central ...
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MEMORANDUM BACKGROUND: This case arises from a bankruptcy proceeding initiated by plaintiff EDP Medical Computer Systems, Inc., when it filed a petition in bankruptcy under Chapter 11 of the Bankruptcy Code. An adversary proceeding was initiated by EDP when it filed a complaint seeking to enjoin permanently the United States from pursuing a civil action in the United States D...
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INTERIM ORDER On December 6,1993 this Court took testimony relative to a Motion for Relief from Automatic Stay filed by the Schuylkill County Tax Claim Bureau. At that time, it was agreed by the parties that this Court should make a preliminary determination as to whether the Debtor had an equitable interest in the subject property despite the exposure of that property to a public Upset Sale pri...
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OPINION AND ORDER The Debtor-in-Possession, Berwick Associates, Ltd., has filed an Objection to the Proof of Claim of the Columbia County Tax Claim Bureau alleging an indebtedness arising from real estate taxes for the years 1991 and 1992 in the amount of One Hundred Seventy-Three Thousand Seven Hundred Eleven and 49/100 Dollars ($173,711.49). The Objection challenges the allegation by the Ta...
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OPINION AND ORDER The Debtors have filed a Chapter Seven bankruptcy and, in that bankruptcy, have filed a Motion to Avoid a Judicial Lien against the Respondent, Corkscrew Woodlands Associates, Inc. (hereinafter “Respondent”). The Debtors are the owners of a parcel of real estate situate in Estero, Florida, the value of which is claimed to be Thirty-Eight Thousand Dollars ($38,000.00)...
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MEMORANDUM OPINION Before the Court is the Motion of Arvi-da/JMB Partners (“Partners”) and Arvida Realty Sales (“Sales”), defendants in the above-captioned adversary proceeding (Partners and Sales are together referred to as “Movant”) to Dismiss Complaint for Injunc-tive Relief and Damages or, in the alternative, Motion for Abstention (the “Motion”). 1 Movant urges this Cou...
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MEMORANDUM OPINION Before the Court is the Debtor’s Motion for Approval of Disclosure Statement and Plan Voting Procedures (the “Motion”). The Debtor seeks approval of a Disclosure Statement in connection with its Third Amended Plan of Reorganization filed on October 3, 1994, more than one year after confirmation of Debtor’s Second Amended Plan of Reorganization (the “Confirmed Plan”)...
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OPINION Background and Procedural History. The instant Chapter 11 case was commenced on July 29, 1993. A review of the docket in the main case reveals that very little of substance transpired in the case from its inception through September 1994, at which time the Office of the United States Trustee filed a Motion seeking dismissal of the case or its conversion to Chapter 7. ...
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MEMORANDUM OPINION On March 12, 1992, an involuntary petition under Chapter 7 of the Bankruptcy Code was filed against Debtor. On April 16, 1992, this court entered an Order for Relief. On January 21,1994, Plaintiff filed an adversary complaint alleging that the Plaintiff’s collateral was wrongfully converted by Defendant. A *90 trial on the merits was held on September 1...
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MEMORANDUM OPINION The court has before it an unopposed Application for Payment of Real Property Taxes as an Administrative Expense filed by Calvert County, Maryland (hereinafter, County). The County requests payment of post-petition real property taxes for fiscal year 1995 in the amount of 15,540.51, plus interest and penalties at rate of 116.20 per month from October, 1994. After co...
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DECISION AND ORDER The matter before the Court for decision arises as a result of the objection of the trustee in bankruptcy to the debtor’s claim of exemption in two promissory notes which are payable to the debtor and his wife,- or the survivor. The debtor takes the position that the use of the words “or survivor” after the names of the husband and wife is sufficient to create a tenants by the e...
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DECISION AND ORDER This matter comes before the Court on the Debtor’s objection to the claim of James C. Agnew for post-petition interest and attorneys’ fees. A hearing was held on October 11, 1994, and a briefing schedule was set to allow the parties to further argue their positions to the Court. The matter has been briefed by both parties and is now ripe for decision. ISSUES Two issues ar...
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ORDER REGARDING SUMMARY JUDGMENT Before the Court are cross-motions for summary judgment filed by plaintiffs Meyer Fallas, Fred Fallas, William Cramer, and Malcolm Marcoe, and by defendant and debt- or, Bruce Barton Sehwager. The Court has jurisdiction of this proceeding pursuant to 28 U.S.C. §§ 1334 and 157(b)(1). This is a core proceeding. After reviewing the law and record, this Court conc...
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OPINION REGARDING DEBTOR’S AMENDED MOTION FOR LEAVE TO ASSUME AMENDED EXECUTORY CONTRACT I. ISSUES In this chapter 11 case, should the court, pursuant to 11 U.S.C. § 363(b)(1), 1 approve a transfer of certain technology to an asserted insider buyer without the approval of a chapter 11 plan? Given the facts and circumstances, should the court order the appointment of a ...
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MEMORANDUM AND ORDER Daido Steel Co., Ltd. (“Daido”) brings this appeal from an order of the United States Bankruptcy Court for the Northern District of Ohio authorizing the Official Committee of Unsecured Creditors (the “Committee”) to continue its retention of specified counsel in Chapter 11 proceedings regarding CSC Industries, Inc. and the Copperweld Steel Company. This Court has ...
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OPINION AND ORDER GRANTING ORDER FOR RELIEF UPON INVOLUNTARY PETITION This matter is before the Court on the involuntary bankruptcy petition filed by Neill Ann Hancock, Administrator, WWA of the Estate of Louis A. Schultz (“LAS Estate”), Kadish & Bender (“K & B”), Neill Ann Hancock, Executrix of the Estate of Ann J. Schultz (“AJS Estate”), Yamaha Motor Corp., U.S.A (“YMC”), and Prospec El...
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Order Regarding Motion of U.S. Trustee for Dismissal Pursuant to 11 U.S.C. § 707(b) This matter is before the Court on the Motion of the United States Trustee (the “Movant”) seeking dismissal of this case pursuant to 11 U.S.C. § 707(b) (the “Motion”). That Motion was the subject of an evidentia-ry hearing before this Court. At the conclusion of that hearing, the Court informed the parties that ...
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JUDGMENT ENTRY This adversary proceeding is before the Court pursuant to a complaint filed by Bethesda Hospital under 11 U.S.C. § 523(a)(2), (a)(4) and (a)(6). The complaint alleges that certain payments made to the Debtor by Community Mutual Insurance Company belonged to Bethesda Hospital (“the hospital”) and that the debtor intentionally defrauded the hospital by using the money for his own pur...
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MEMORANDUM This matter is before the court upon the motion for summary judgment filed by defen *156 dants Resource Bancshares Mortgage Group and Freedom Mortgage Corporation. For the reasons set forth below, the motion will be denied. FACTS On March 8, 1994, the debtors executed a note and deed of trust in favor of defendant Freedom Mortgage Corporation, which w...
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MEMORANDUM ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, PLAINTIFF’S MOTION TO QUASH SUBPOENA AND FOR PROTECTIVE ORDERS, AND PLAINTIFF’S REQUEST FOR A PRELIMINARY INJUNCTION The Plaintiff, Metropolitan Life Insurance Company (MetLife), initiated this adversary proceeding with the filing of its Complaint on January 23,1995, seeking damages and sanctions for the Defendants’, Alside Supply Cen...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This case centers on the Trustee’s Application to sell real property and the Defendants’ *170 defense of an alleged mistake in the conveyance of the real estate to the Debtor and his spouse. JURISDICTION The Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157, 1334 and Loc...
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MEMORANDUM This matter is before the Court on the Parties’ respective Motions for Summary Judgment. The Illinois Department of Public Aid (“Plaintiff”) has requested a judgment on its complaint to determine that certain monies it paid to Karol Jeanne Wilder (“Debtor”) created a debt that is nondis-chargeable in this bankruptcy proceeding pursuant to 11 U.S.C. § 523(a)(2). The Debtor has argue...
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ORDER GRANTING FRIEDELL MOTION TO TERMINATE AUTOMATIC STAY, DENYING DEBTORS’ MOTION FOR ADVANCE OF FUNDS, AND DENYING CONFIRMATION OF PLAN On December 19, 1994 in Kansas City, Missouri, the Court took up various matters, including the hearing on confirmation of debtors’ plan, the motion of Morris Friedell for relief from stay or in the alternative to dismiss the debtors’ Chapter 13 petition, the...
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ORDER DENYING MOTIONS FOR STAY OF ORDER OF BANKRUPTCY JUDGE On January 17, 1995, debtor filed two motions for stay of order of bankruptcy judge. Both bear the caption of the main file. The motions seek a stay of various matters during appeal, including the order terminating the automatic stay, payment of filing fees, and payment of utility deposits. A. Order Terminating Automatic Stay The orde...
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ORDER GRANTING TRUSTEE’S MOTION TO DISMISS CHAPTER 13 CASE AND DISMISSING CASE FOR FAILURE TO COMPLY WITH ORDER OF JANUARY 6, 1995 TO PAY FILING FEE After review of the file and debtors’ “3rd Revised Plan” filed January 17, 1995, the court finds that the Trustee’s motion to dismiss for failure to file a confirmable plan should be granted, and that the case should be dismissed for the additional ...
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OPINION AND ORDER DENYING IN FORMA PAUPERIS APPLICATION Pro se debtor Carolyn Ennis filed two notices of appeal without the required filing fees, but accompanied by two affidavits of financial status. There was no motion to proceed informa pauperis, but the affidavits reference such a motion, so debtors apparently seek to appeal two orders without paying the filing fees. Th...
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OPINION OVERVIEW The bankruptcy court authorized a sale of the debtor’s property free and clear of liens. The resulting proceeds were significantly less than the amount secured by the senior lien. The senior lienor had not received notice of the sale and consequently did not appear. The court determined that the trustee’s attempted notice to the senior lien- or satisfied due proc...
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OPINION The debtor appeals an order finding a tax debt to be nondischargeable pursuant to § 11 U.S.C. 523(a)(1)(A). I. FACTS In December, 1989, the Internal Revenue Service (IRS) audited Appellant Anthony Vi-taliano’s tax returns for the years 1983 through 1987, assessing a deficiency for each year. Rather than suffer the expense of fighting the IRS, Vitaliano agreed to sign...
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OPINION Appellant, a judgment creditor, seeks reversal of the order denying his motion for entry of a default judgment and dismissing his nondischargeability complaint against debtors. As debtor-transferors can have no monetary obligation under the state fraudulent transfer law which could be nondis-ehargeable, we AFFIRM. CONTEXT On 24 July 1990, Plaintiff Phillip Quarré, as...
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OPINION Chapter 7 debtors, Alan P. Johnson and R.N. Johnson (the “Debtors”), filed a motion seeking an order to the effect that certain payments due post-petition under an anti-competition covenant are not property of the bankruptcy estate. The bankruptcy court held the payments were property of the estate. The Debtors appeal. Factual Background Alan P. Johnson (“Johnson”), ...
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OPINION The appellants filed a proof of claim based on § SGSQ). 1 The reorganized debtor/appel-lee filed an objection to the appellants’ claim alleging, inter alia, that no amount was owed to the appellants. After several hearings, the bankruptcy court disallowed the claim in full. We AFFIRM. I. FACTS On June 6, 1992, the appellants, Burk N. and Theresa T. ...
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MEMORANDUM DECISION Leonard Gumport, chapter 7 trustee of the estate of Transcon Lines, has brought a motion under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), seeking to recover attorney’s fees and costs incurred in litigating the legality of certain regulations issued by the Interstate Commerce Commission. Based upon the following discussion, the court finds the award of fees appropria...
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*238 ORDER RE TERMINATION OF ARBITRATION I. INTRODUCTION This adversary proceeding involves a failed arbitration attempt arising out of a dispute concerning the debtor’s purchase of securities. After more than 18 months since the entry of an order for arbitration, the parties have failed to begin their arbitration hearing. Consequently, the Court vacates the order referring ...
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MEMORANDUM DECISION The matter before the Court involves issues which are important to all who deal with Chapter 11 debtors, including trade creditors and professionals. In this ease, the debtor was unable to reorganize under Chapter 11, and the proceeding was converted to one under Chapter 7. This matter came on for hearing on the noticed motion of the Chapter 7 trustee for an order requ...
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ORDER At Butte in said District this 16th day of February, 1995. In this adversary proceeding, the Debt- or/Defendant Raymond Williams filed consolidated motions seeking to have the Plaintiffs complaint stricken and dismissed for insuffi *256 ciency of service of process, because the summons and complaint were not served upon the Defendant personally as required by F.R.B...
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OPINION In the matter before the court, defendant Wilbur-Ellis Company appeals from the final judgment of the bankruptcy court entered on September 22, 1994. The undisputed facts are set forth in the opinion of the Honorable Donal D. Sullivan, United States Bankruptcy Judge for the District of Oregon, filed on September 22, 1994. The undisputed facts are as follows: Wilbur and Helen Stoller sold t...
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MEMORANDUM OPINION AND ORDER ON MOTION TO RECONSIDER ORDER ON MOTION TO DISMISS THIS MATTER comes before the Court on the Motion to Reconsider Order on Motion to Dismiss filed by Vicki S. Porter and Vicki S. Porter, P.C. (collectively “Porter”), on January 6, 1995, the Reply thereto filed by the Debtor on January 26, 1995, and the Response filed by Porter on January 30, 1995. The Court, h...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon the MOTION TO STRIKE JURY DEMAND AND TO DENY MOTION FOR WITHDRAWAL OF THE REFERENCE, filed by the Plaintiff on January 4, 1995. This adversary proceeding was filed by the Trustee on December 18, 1992. On April 8, 1993, Robert C. Arnot filed his answer which contained, inter alia, affirmative defenses for recoupment and setoff. H...
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MEMORANDUM OPINION This matter is before the Court on a motion filed by the plaintiffs, Judith Thompson, trustee, and Young Min Yu, requesting permission to amend their complaint and add SouthTrust Bank, John Edward Dodd and Iris Janet Dodd as party-defendants. South-Trust Bank, John Edward Dodd and Iris *274Janet Dodd filed objections to the motion. The hearing in this matter was held on the 20th...
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ORDER This cause is before the Court on appeal from the “Order Granting Appellee’s Motion to Remand to the Twelfth Judicial Circuit for Sarasota County,” entered on August 8, 1994 by Chief Bankruptcy Judge Alexander L. Paskay. Jurisdiction over appeals from the final judgments, orders and decrees of the Bankruptcy Court is vested in the Federal District courts. 28 U.S.C. § 158(a). ...
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ORDER ON MOTIONS This cause is before the Court on appeal from the Bankruptcy Court’s order entered on February 28, 1994, which granted Samuel C. Campagna’s (Plaintiff-Appellee’s) motion for entry of default judgment against the Saloman Weingarten, Debtor-Appellant, and denied the debtor a discharge under Section 727 of the Bankruptcy Code. Appellant-Debtor contends that the Bankruptcy Court er...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS MATTER came on for consideration upon Motion for Summary Judgment filed by Lenard J. Miller on Motion for Allowance of Administrative Expense, and Motion for *288Summary Judgment of Debtor on Objection to Administrative Claim of Lenard Miller in the above captioned case. This Court has considered all arguments and evidence consistent with a ruling on a mo...
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FINAL ORDER (1) AFFIRMING BANKRUPTCY COURT’S ORDER GRANTING PLAINTIFF’S MOTION FOR REHEARING, DATED DECEMBER 8, 1993, AND (2) AFFIRMING BANKRUPTCY COURT’S FINAL JUDGMENT AND FINDINGS OF FACT AND CONCLUSIONS OF LAW, DATED JANUARY 4, 1994 BEFORE THIS COURT is an appeal from the (1) Bankruptcy Court’s Order Granting Plaintiffs Motion for Rehearing, dated December 8, 1993, and (2) Bankruptcy Court’s...
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OPINION Abdellah Benjelloun (the “Plaintiff’) seeks a declaration that the $325,000 indebtedness allegedly owed him by Mitchell Robbins (the “Debtor”) is nondischargeable under section 523(a)(2) of the Bankruptcy Code, which concerns debt obtained by use of a false financial statement. The Debtor moves for summary judgment. The Plaintiff also moves for summary judgment on all aspects ...
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OPINION Maradam Realty Trust (“Maradam”) moves for an order directing the bankruptcy estate to pay it $4,960.50 in rent accrued before rejection of its lease. Maradam relies on the requirement of section 365(d)(3) of the Code that the estate “timely perform” its lease obligations prior to rejection. I grant the motion. John Brennick and Elaine Brennick (the “Debtors”), who are hu...
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MEMORANDUM OF DECISION Fischer Enterprises, Inc. (“Fischer”), an overseeured creditor, seeks an order compelling the trustee to disburse, subject to available funds, fees, costs and default interest associated with its claim. For the reasons set forth below, the motion is granted in part and denied in part. 1 BACKGROUND On May 11,1992, Anna Kalian (“Kalian” or the “...
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DECISION AND ORDER Heard on July 28, September 1, and October 20,1994, on the Fee Application of Tobin & Company, accountant for the Debtor, and on the Chapter 11 Trustee’s Motion for Disgorgement of approximately $66,000 already paid to the Applicant without prior Court approval. The first two applications filed by Tobin were patently deficient, and at the close of both the July and ...
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ORDER ON TRUSTEE’S COMPLAINT SEEKING AVOIDANCE OF PREFERENCES Heard on February 22, 1995, on the Trustee’s Complaint to recover certain payments by the Debtor to Employee Staffing of America (“ESA”), made within the ninety days prior to the date of the petition.1 Pre-petition, Hyperion and ESA had entered into a contract for ESA to provide employees for Hyperion’s operations. ESA employees worki...
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178 B.R. 328 (1995) In re DAZIC CONTROLS CORPORATION, Debtor. Bankruptcy No. 2-94-01389. United States Bankruptcy Court, D. Connecticut. February 17, 1995. *329 Alan Robert Baker and Dominic Fulco III, Baker & Fulco, Putnam Park, Wethersfield, CT, for Winterburn Mfg. Co. and Robert W. Randall. Joel M. Grafstein, Grafstein & Associates, Farmington, CT, for debtor. Byron Paul Yost, Yost &am...
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DECISION ON DISCHARGEABILITY OF STUDENT HOUSING DEBT This adversary proceeding was instituted by Fred Alibatya (“Plaintiff’ or “Debtor”), a former graduate student of New York University (“NYU” or “Defendant”), to obtain a determination that certain outstanding pre-petition student resident housing charges are dischargeable in bankruptcy. The Debtor filed a Chapter 7 petition on November 6,...
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Memorandum Decision and Order This matter comes before the Court upon a Notice of Motion, dated April 14, 1994, by Joel Schwartz (“Debtor”) to convert his chapter 7 petition (“Petition”) to one under chapter 13, or, in the alternative, to have the chapter 7 bankruptcy withdrawn. The chapter 7 trustee, Allan B. Mendelsohn, Esq. (“Trustee”), filed an Affirmation in Opposition to the mot...
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MEMORANDUM DECISION ON CONFIRMATION OF THE DEBTORS PLAN OF REORGANIZATION INTRODUCTION The matter before this Court is the confirmation of the plan of reorganization, as amended, filed by Woodmere Investors Limited Partnership (the “Debtor”). As more fully explained below, Connecticut Mutual Insurance Company (“Connecticut Mutual”), the first mortgagee of the Debtor’s single ...
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MEMORANDUM DECISION ON BANK’S CROSS-MOTION FOR RELIEF UNDER 11 U.S.C. § S6S Kemer Printing Company, Inc. (“Kemer” or “debtor”) has moved this Court pursuant to § 363 of the Bankruptcy Code (“Code”) for authorization to utilize National Westminster Bank USA’s (“NatWest”) cash collateral. Although debtor does not dispute that Nat-West has perfected security interests in substantially al...
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MEMORANDUM DECISION DISMISSING COMPLAINT SEEKING DETERMINATION OF DISCHARGE-ABILITY OF DEBT Fellows, Read & Associates, Inc. (the “Plaintiff’) seeks a determination that three debt obligations of Ralph Rieder (the “Debt- or”), embodied in three guarantees delivered to the Plaintiff in 1989, are not dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). On December 15, 1994, the Court conduct...
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OPINION Clarence E. Shaw and Betty Shaw (“Shaws” or “Debtors”), filed a Complaint to cancel a second mortgage held by Federal Mortgage and Investment Corp. (“Federal”) and to disallow Federal’s proof of claim. In response, Federal filed an Answer and asserted a counterclaim against the Shaws. Federal also filed an Amended Answer. Before the Court is the Shaws’ motion requesting Partial Su...
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OPINION AND ORDER The court has for consideration the Objection of the United States Trustee to the Disclosure Statement of Pagnotti Enterprises, Inc.. For the reasons provided below, the objection to the disclosure statement is sustained. The United States Trustee’s objection to the disclosure statement is based on one fact; the disclosure statement is not signed by the attorney who prepared it...
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OPINION AND ORDER The facts in the controversy before the Court are not in dispute. Blue Coal Corporation, a bankruptcy filed to Case No. 76-1311, is a creditor of Beltrami Enterprises, Inc. and Lucky Strike Coal Corp. which are related Chapter 11 bankruptcy cases filed to 5-91-00866 and 5-91-01571 respectively. Both Beltrami and Lucky Strike listed Blue Coal as a “disputed” creditor ...
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OPINION AND ORDER The facts are not in dispute. The Debtors, John and Dalen Castellanos (hereinafter “Debtors”), have filed a complaint under 11 U.S.C. § 506 of the bankruptcy Code in an attempt to “strip down” two of three mortgages against their property. It is stipulated that a first mortgage lien of Sovereign Bank f/k/a Penn Savings Bank is collateral for an indebtedness of Sixty-Eight ...
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OPINION AND ORDER On October 25, 1994 Plaintiff presented their case against the Defendants relative to a Complaint objecting to the dischargeability of certain debt incurred by the Debtor/Defendants. That Complaint was filed under 523(a)(2)(A) and alleged that various charges made by the Debtors within days of their bankruptcy filing were debts that should not be discharged because of “false pret...
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OPINION AND ORDER The United States Trustee has objected to the fee application of counsel for the Debtor Koresko & Noonan. Testimony on same was taken on June 9th, 1994. At that time, the threshold issue arose as to whether the retainer of Koresko & Noonan (“K & N”) in the amount of Forty Thousand Dollars ($40,-000.00) was paid from property of the estate or whether the source of tha...
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OPINION AND ORDER Before the Court are actions against The Globe Store Acquisition Co., Inc., (hereinafter “Debtor”), by the Pennsylvania Power & Light Company, (hereinafter PP & L), and by the Broadway Theater of Northeastern Pennsylvania, Inc., (hereinafter “Theater”), seeking to impose a trust upon the Debtor so that funds in possession of the Debtor would be considered ...
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OPINION AND ORDER The court is currently considering the request of the Debtor, Continental Energy Associates Limited Partnership, (“Debtor”), to impose a preliminary injunction against Ha-zleton Fuel Management Company, (“Hazle-ton”), so as to require Hazleton to supply the Debtor a continuous supply of natural gas until such time as the Debtor assumes or rejects a pre-petition contr...
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MEMORANDUM OPINION AND ORDER This Contested Matter comes before the Court on the Motion for Relief from the Automatic Stay filed by CMF Loudoun Limited Partnership (“CMF”), the holder of a security interest in property owned by the debtor, Nattchase Associates Limited Partnership (“Nattchase”), which collateral consists of real property located in Loudoun County, Virginia. The obligat...
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MEMORANDUM OPINION This matter comes before the Court upon cross motions for partial summary judgment filed by Michael Chiasson, Trustee (“trustee”) for Confabco, Inc. (“Confabco”) (Pl. 11) and by Chaparral Steel Company (“Chaparral”) (Pl. 8). The parties are in agreement that there are no genuine issues of material fact and that judgment should be entered as a matter of law. The cour...
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MEMORANDUM DECISION ON TRUSTEE’S COMPLAINT TO RECOVER PREFERENTIAL TRANSFER CAME ON for consideration the complaint of Andrew B. Krafsur, Trustee (“Trustee”) for El Paso Refinery L.P. (“EPR”), to recover preferential transfers, 11 U.S.C. § 547, from Scurlock Permian Corporation (“SPC”). After hearing thereon, the court took this matter under submission. This decision now resolves this mat...
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ORDER On March 15, 1993, Grand Slam U.S.A., Inc. (Estate) filed a Petition for Bankruptcy under Chapter 11 with the United States Bankruptcy Court for the Eastern District of Michigan which listed (1) assets (i.e., batting cages, related accessories, and a variety of concession items, such as cash registers, telephone systems, and popcorn makers), all of which were encumbered by liens, includ...
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ORDER DISMISSING MOTION FOR TURNOVER OF PROPERTY OF THE ESTATE UNDER 11 U.S.C. § 542(b) AND DENYING MOTION FOR ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT This matter is before the Court on the “Motion for Turnover of Property of the Estate Under 11 U.S.C. § 542(b) or, in the Alternative, Motion for Order to Show Cause why Defendants Should not be Held in Contempt” f...
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MEMORANDUM OPINION AND ORDER Debtor in possession Roger Clinton Haines filed this adversary action seeking to avoid the pre-bankruptcy termination of a lease as a fraudulent transfer under 11 U.S.C. § 548(a)(2). Debtor and the defendant, the Regina C. Dixon Trust, filed cross-motions for summary judgment. Debtor in possession seeks summary judgment on the issue of whether the terminat...
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MEMORANDUM Before the court is an Application for Dismissal by the Debtor (Fil. # 16), the Trustee’s Objection to Application for Dismissal (Fil. # 18), the Resistance to Trustee’s Objection to Application for Dismissal (Fil. # 19), and the Objection by Howard H. Gat-lin and Keith J. Pennell, Creditors, to the Debtor’s Application for Dismissal (Fil. #20). I conclude that the Application for ...
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OPINION Lawrence Diamant (“trustee”) is the Chapter 7 trustee for the debtor, Advent Management Corporation (“Advent”). The trustee commenced an action against Taylor Associates (“Taylor”) to recover sums alleged to be either avoidable preferences under section 547, 1 or fraudulent transfers under section 548. The bankruptcy court granted partial summary judgment to the tru...
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ORDER CONSTRUING § 553 OF THE BANKRUPTCY CODE Before the Court are two consolidated actions arising out of a bankruptcy case that began under Chapter 11 of the Bankruptcy *494 Code (the “Code”) and was subsequently converted to a case under Chapter 7 of the Code. 1 One is an action filed by the United States of America on behalf of the Maritime Administration, ...
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MEMORANDUM DECISION ON APPEAL First Security Bank of Idaho, N.A., has filed this appeal from the final judgment entered by the.Bankruptcy Court in favor of L.D. Fitzgerald, Trustee (“the Trustee”), and which deemed the Bank’s hen in the 1989 Ford Taurus to be void under 11 U.S.C. § 547(b) of the United States Bankruptcy laws. By permission of this court, the Idaho Automobile Dealers Association...
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MEMORANDUM OPINION FACTS On May 15,1991, the plaintiff, an attorney, sued the debtor in the Superior Court of the State of Washington for Whatcom County. The complaint alleged theft, conversion, fraud, and misrepresentation and sought damages in the sum of $30,000. On May 29, 1991, a stipulated judgment was entered. Aside from the caption, which stated in part “STIPULATED JUDGMEN...
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OPINION AND ORDER GRANTING, IN PART, MOTION TO MODIFY MARCH 13, 1994 ORDER THIS MATTER comes before the Court on the Chapter 7 Trustee’s motion to modify, or effectively void, a cash collateral agreement which grants a tax lien creditor, the State of Colorado, summary relief from the automatic stay on conversion of the Debtor’s Chapter 11 case to Chapter 7. 1 The Trustee oppose...
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MEMORANDUM AND ORDER This ease comes before the court on an appeal from an order of the bankruptcy court dismissing the appellants’ involuntary bankruptcy petition and denying the appellants’ motions for entry of an order for relief and to strike the appellee’s answer to the involuntary petition. For the reasons explained below, the decision of the bankruptcy court to dismiss the appe...
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ORDER ON OBJECTION TO CONFIRMATION OF CHAPTER IS PLAN In a case such as this, filed under Chapter 13 of the Bankruptcy Code, 1 the provisions of § 1325(a) govern whether the court may confirm the debtor’s Chapter 13 plan. Section 1325(a)(5) deals with allowed secured claims provided for in the plan. Its requirements are met if the holder of the claim accepts the plan [§ 132...
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ORDER ON APPEAL This cause comes before the Court on appeal from the orders, of the United States Bankruptcy Court of the Middle District of Florida, denying Appellants’ Motion for Reconsideration of Order for Turnover of Monies entered by the Bankruptcy Court on June 7, 1994, pursuant to 28 U.S.C. Section 158. STANDARD OF REVIEW This Court functions as an appellate court in reviewing t...
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ORDER This cause is before the Court on appeal from a discharge of debt entered on July 14, 1994, by Chief Bankruptcy Judge Alexander L. Paskay, in an adversary proceeding in connection with a Chapter 7 proceeding, 166 B.R. 455. Jurisdiction over appeals from the final judgments, orders and decrees of the Bankruptcy Court is vested in the Federal District Courts pursuant to 28 U.S.C. section 158...
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*531 FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the amended motions of Jax Distribution Center for administrative expense for rent and removal of hazardous wastes. A hearing was held on January 4, 1995, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: Findings of Fact The parties have agreed to the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the objection to debtors’ 1 claim of exemption filed by the trustee. The Court held a hearing on November 9, 1994, and upon the facts stipulated by the parties and post hearing briefs, the Court enters these findings of fact and conclusions of law. Findings of Fact The parties are in agreement as to the followi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court upon the complaint of plaintiff, Patricia Mendez, which seeks to except a debt from defendants’ discharge pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4) and (a)(6). A trial was held on November 16, 1994, and upon the evidence presented the Court enters these findings of fact and conclusions of law: ...
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ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS AND DISMISSING ADVERSARY PROCEEDING This adversary proceeding came before the Court for pre-trial conference on January 18, 1995, upon the complaint for declaratory judgment filed by plaintiff, Larry Wesehe, and a motion for judgment on the pleadings filed by defendant, United States of America Internal Revenue Service. Plaintiff...
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FINAL ORDER AFFIRMING IN PART AND REVERSING IN PART BANKRUPTCY COURT’S MEMORANDUM DECISION AND JUDGMENT, DATED FEBRUARY 24, 1994, AND REMANDING CASE TO BANKRUPTCY COURT WITH INSTRUCTIONS, AND AFFIRMING BANKRUPTCY COURT’S ORDER DENYING MOTION FOR REHEARING AND/OR TO ALTER OR AMEND THE JUDGMENT, DATED MARCH 9, 1994 BEFORE THIS COURT is an appeal from the (1) Bankruptcy Court’s Memoran ...
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ORDER DETERMINING REASONABLE COMPENSATION FOR THE ATTORNEY FOR THE TRUSTEE THIS CAUSE came before the undersigned Bankruptcy Judge on Wednesday, November 30, 1994, for hearing on the pending application for compensation for the Attorney for the Chapter 7 Trustee, and the objections filed by the United States Trustee and a creditor, Lucia Flowers. The Court having received and reviewed the objec...
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MEMORANDUM OPINION On April 28,1994, the court held a hearing on the objection of Debtor to the request of Clarklift South, Inc. for payment of administrative expenses in connection with a certain lease dated February 28, 1990, of two forklifts by Debtor. The court also considered the limited objection of Congress Financial Corp. to such request for administrative expenses. At the con...
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*573 MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This proceeding comes before the court on Plaintiffs Motion for Summary Judgment. After considering the parties’ pleadings, the record in the file and applicable authorities, I conclude that Plaintiffs motion will be granted in part and denied in part. FACTUAL BACKGROUND On October 2...
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DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT Under the court’s consideration are cross motions for summary judgment on the priority claim of the Travelers Insurance Company (“Travelers”). The question faced by the court is whether a claim for unpaid premiums for statutorily mandated workers’ compensation insurance is entitled to fourth priority status under 11 U.S.C. § 507(a)(4) a...
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*591 MEMORANDUM OF DECISION Before the Court for determination are motions filed by James M. Lynch, United States trustee for Region I (the “UST”), pursuant to 11 U.S.C. § 324 and Bankruptcy Rules 9013 and 9014, for the removal of Cecilia Calabrese (“Calabrese”) from the above-captioned cases and from all other cases in which she is the Chapter 13 Trustee in the Western Divis...
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178 B.R. 598 (1995) In re ALMACS, INC., Debtor. Bankruptcy No. 93-12090. United States Bankruptcy Court, D. Rhode Island. February 17, 1995. *599 *600 *601 *602 Robert Lapowsky, Cohen, Shapiro, Polisher, Sheikman & Cohen, Philadelphia, PA, Edward Bertozzi, Steven Kumins, Edwards & Angell, Providence, RI, for debtor. Joseph DiOrio, Hinckley, Allen & Snyder, Providence, RI, Joel D. Appl...
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DECISION AND ORDER DENYING MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT PRELIMINARY STATEMENT Before the Court1 is a motion (“Motion”) by Martin Lemer, the debtor-defendant (“Lemer”) for summary judgment and dismissal of the complaint on the grounds that there are no triable issues of fact to be determined. Plaintiff Midlantic National Bank (“Midlantic”) opposed the Motion by filing a cross-mo...
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I. INTRODUCTION This matter appears to involve a question not previously addressed in any published cases: Should the Court rule on a non-debtor litigant’s motion to remand this adversary proceeding to state court before that litigant is willing to inform the Court whether or not it will assert any claims against the Chapter 11 Debtor-in-Possession, and thereby submit to adjudication of the...
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Trans World Airlines, Inc. (TWA) moved for summary judgment on its objection to two claims, numbers 8124 and 15042, filed by Aprille Schelhammer. Ms. Schelhammer responded to the objection but did not file any response to the motion for summary judgment nor did she appear at the time scheduled for argument. This is a core proceeding. 28 U.S.C. § 157(b)(2)(A) and (B). The basis for claim no. 8124 f...
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MEMORANDUM This is an appeal by Bell Atlantic Tricon Leasing (“Bell Atlantic”) from the United States Bankruptcy Court’s Opinion and Order dated March 14, 1994, 166 B.R. 595, which determined that funds in the account of Mountain Cleaners, Inc. were actually the assets of the individual debtors, Robert Mass and Yvonne J. Mass (hereinafter collectively referred to as “Mass”). Bell Atla...
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OPINION AND ORDER Before the court for consideration is an Objection of Joseph Gorman, Esquire, Trustee in Bankruptcy, (hereinafter “Trustee”), to claim number 18 filed on or about March 11, 1992 by Honesdale National Bank, (hereinafter “Bank”), in the approximate amount of Two Hundred Forty-Five Thousand Dollars ($245,000.00). The Trustee is currently holding the settlement proceeds of litig...
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OPINION AND ORDER Pending for resolution are various objections filed to the Debtors’ Third Amended Plan. For the reasons provided herein, the objections are sustained. The court, however, will continue the automatic stay or injunction, as the case may be, for an additional forty-five (45) days from the date of this Opinion and Order.1 Within this forty-five (45) day period, the Debtors must fi...
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OPINION AND ORDER Before the court is an objection by Richard Simpson, (hereinafter “Objector”), to the Debtor’s proposed Chapter 11 Plan and also, a Motion filed by Richard Simpson and Phyllis Simpson, (hereinafter “Movants”) request*638ing the lifting of the automatic stay so that the Movants can proceed to enforce their state law remedies against certain real estate owned by the above-captio...
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OPINION AND ORDER The consolidated Debtor, Jewelcor, has filed a Motion to Assume an Executory Contract, that is, a certain lease with M & G Equities. M & G has countered with a Motion to Compel Rejection of the Lease and a Motion to Compel Payment of Administrative Rent. Also pending between the parties, but not yet heard by the Court, is a Motion of Jewelcor to Compel Specific Performance of ...
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MEMORANDUM AND FINAL JUDGMENT I. BACKGROUND This is an appeal from the Bankruptcy Court’s final judgment entered in favor of the Appellees on July 8, 1994. In re Nutri/System., Inc., 169 B.R. 854 (Bankr.E.D.Pa.1994). The appellants are former landlords of debtors Nutri/System, Inc. (N/S) and Nu-tri/System of Florida Associates (N/SF). On December 22, 1993, the ...
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178 B.R. 659 (1995) In the Matter of FOXCROFT SQUARE COMPANY, Foxcroft Management Corporation, Debtors. Civ. A. No. 93-4880. United States District Court, E.D. Pennsylvania. February 17, 1995. *660 *661 Kenneth E. Aaron, Buchanan Ingersoll Professional Corp., Philadelphia, PA, for debtors. Vincent J. Marriott, III, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, PA, for appellant Federal N...
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OPINION A INTRODUCTION Presently before this court in the voluntary Chapter 11 bankruptcy case of UNION MEETING PARTNERS (“the Debtor”), a partnership which owns certain realty, is the Debtor’s request that we confirm its Fourth Amended Plan of Reorganization (“the Plan”) over the objection of the Debtor’s first mortgagee, Lincoln National Life Insurance Company (“Lincoln...
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MEMORANDUM OPINION Introduction Presently before the Court is the objection of Creditor Sylvester Alen Porter (“Porter”) to the confirmation of the amended Chapter 13 plan (“Amended Plan”) proposed by debtor Bill Norwood a/k/a William *685 Norwood (“Debtor”). 1 A hearing on the objection was held on January 27, 1995, after which the Court took the matter under advisement for dispositi...
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OPINION Pending before the court is the motion of defendant, Irving Z. Friedman, Executor of the Estate of Stanley Rothenfeld (“defendant” or “executor”), for summary judgment. The motion presents an issue of first impression, to-wit, whether Ohio’s nonclaim statute, § 2117.06 of the Ohio Revised Code, which bars all noncontingent claims against an estate that are not presented within...
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MEMORANDUM OPINION This case came before the court on February 8, 1995, for hearing on confirmation of the Debtor’s plan or reorganization. The principal creditors of the Debtor, Gene S. Holbrooks and Anne M. Holbrooks, who hold both secured and unsecured claims, voted against the plan and also filed an objection to confirmation of the plan. The only matter related to confirmation which was hea...
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OPINION AND ORDER This matter comes before the Court on appellants’ appeal of the United States Bankruptcy Court’s order denying confirmation of appellants’ Chapter 13 plan. Two issues are presented on appeal: (1) Did the Bankruptcy Court err in determining that an adversary proceeding was necessary to determine the value of appellee Commercial Credit Corporation’s claim; and (2) did the Bank...
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OPINION This action involves an appeal from the bankruptcy court. The Debtor, Holly’s, Inc. (Holly’s), is requesting a reversal of the bankruptcy court’s order granting the City of Kentwood’s (“Kentwood”) motion for summary judgment. The bankruptcy court held that “it had subject matter jurisdiction to render a final judgment on the Debtor’s real property tax liability to Kentwood for the yea...
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DECISION AND ORDER ALLOWING-CLAIM OF INTERNAL REVENUE SERVICE This matter is before the court upon the Debtor’s objection to a proof of claim filed by the Internal Revenue Service. The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference entered in this district. This matter is a core proceeding under § 157(b)(2)(B) — allowance or disal-lowance of claims...
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MEMORANDUM This case is before the court on the trustee’s objections to the exemptions claimed by the debtor and on the debtor’s motion to strike the trustee’s objections for untimeliness. After considering the briefs of the parties, the evidence presented at a hearing, and the argument of counsel, the court is of the opinion that the debtor’s motion to strike objections should be gra...
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MEMORANDUM OPINION AND ORDER RE COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT This matter is before the court on a complaint to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(4). By virtue of 28 U.S.C. § 157(b)(2)(I), this matter is a core proceeding. Pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure, the following are the court’s findings of fa...
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MEMORANDUM OPINION This matter is before the court on an appeal from the Bankruptcy Court’s determination that the Internal Revenue Service (“IRS”) wilfully violated an automatic stay. As a result of said violation, the Bankruptcy Court granted an award of attorney’s fees to the debtor, Midway Industrial Contractors, Inc. (“Midway”). The United States appeals that order. For the reaso...
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MEMORANDUM OPINION ON JONES’ MOTION TO ANNUL STAY Confidential Investigative Consultants, Inc. (“CIC” or “Debtor”) filed this bankruptcy case on April 16, 1991, under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. CIC’s Reorganization Plan was confirmed on March 19, 1992, but the Plan has not yet been consummated and a final decree has not been entered. This Cou...
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OPINION In stage one of this litigation between the Plaintiff, the Trustee in Bankruptcy (TRUSTEE) for both PEARSON INDUSTRIES, INC. (PEARSON) and INDUSTRIAL AND MUNICIPAL ENGINEERING, INC. (IME), 1 and the Defendant, McCORD AUTO SUPPLY, INC. (McCORD), the parties filed cross motions for summary judgment on the issues of liability, reserving any issues of damages. This Court fo...
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DECISION On July 3, 1986, the defendani/debtor, Er-vin Staggs, was involved in a bar fight with the plaintiff, James Forrester, at the Red Apple Inn in Marion, Indiana. As a result of that altercation, the plaintiff filed a civil action on July 5, 1988, alleging that the defendant had committed battery against him. Defendant filed an answer of denial on April 3, 1989. Almost three yea...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This is a dischargeability proceeding in which the plaintiff seeks to prevent the debt- or from discharging a debt payable to the plaintiff for representing the debtor’s former spouse in a dissolution proceeding. JURISDICTION This Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157, 13...
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ORDER Appellant Doran Shubert appeals a decision of the Bankruptcy Court and files a brief in support of his appeal. Thomas J. Carlson, trustee for the estate, has filed a brief in opposition to the appeal. Appellant Shubert filed a reply brief. Appellant Shubert has also filed a motion for stay on appeal and suggestions in support of his motion. For the following reasons, the decision of the...
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ORDER DENYING MOTION TO AMEND PROOF OF CLAIM FILED BY THE WRENN INSURANCE AGENCY, INC. This matter is before the Court on the motion filed by The Wrenn Insurance Agency, Inc., d/b/a The Wrenn Insurance Group (Wrenn Agency) to amend its proof of claim and the objection thereto filed by Polsinelli, White, Vardeman & Shalton, P.C., (Polsinel-li), bankruptcy counsel for the debtor The Wrenn I...
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MEMORANDUM This matter comes before the court on the trustee’s proposed sale of a 1985 Mazda 626 to Tad D. Eickman and his insurer, Union Insurance Company, Lincoln, Nebraska for $2,000.00 cash. (See Fil. # 29). Consummation of the proposed sale would constitute not only a severe breach of ethical rules governing attorney conduct, but would be criminal in nature. The proposed sale is ...
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OPINION I The issue here is whether, in calculating the percentage rent it must pay under a lease agreement, The Circle K Corporation (“Circle K”) should include two percent of the commissions received from the sale of lottery tickets or two percent of the gross receipts from the lottery tickets. We hold that the lease agreement provides for the latter calculation. Therefore, we REVERSE. II FACTS ...
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The orders on appeal in these cases arose after the Office of the United States Trustee objected to fees paid and agreed to be paid to the law firm of Hessinger & Associates (“Hessinger”) by Chapter 7 debtors Deborah Sogge and Mark Elección. The bankruptcy court entered an order and memorandum decision which were given a miscellaneous case number, 94 — 102, and captioned “In re Hessinger & Asso...
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(AMENDED) 3 OPINION This is a case of first impression where a secured creditor has objected to court-ordered adequate protection payments for fear that acceptance of the payments might violate California’s “one action” rule, California Civil Procedure Code § 726, and the related antideficiency statutes §§ 580a, 580b and 580d, and bar foreclosure of its real property col...
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MEMORANDUM DECISION The Court has the above-mentioned matters under advisement. 1 Various hearings *819 have been held, culminating in the Court’s request of the parties to file additional briefs. The issue concerning the Court is whether res judicata principles preclude Mr. Reed’s claims against the Trustee, Maricopa County Flood Control District, and o...
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OPINION INTRODUCTION On October 21, 1994, the Court confirmed the Chapter 11 plan of Capital West Inves*826tors, a California Limited Partnership, over the objections of Reilly Mortgage Group, Inc., the servicing agent on the first deed of trust, and The Mortgage Bankers Association of America (MBAA), as amicus curiae. Reilly sought reconsideration of the Court’s order confirming the plan and was...
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MEMORANDUM DECISION ON MOTION TO PAY CERTAIN REAL ESTATE COMMISSIONS Debtor has brought a motion to authorize payment to certain real estate brokers of commissions for sales of condominium units negotiated pre-petition, but which closed escrow post-petition. The Official Committee of Unsecured Creditors has opposed the motion, arguing that the realtors’ claims are pre-petition general uns...
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ORDER ADOPTING BANKRUPTCY JUDGE’S REPORT AND RECOMMENDATION; DISMISSING FIRST AMENDED COMPLAINT AS TO DEFENDANTS MICHAEL C. DAILY, TERRI DAILY WILCOX, AND LILI-PUNA DEVELOPMENT CORPORATION; AND DISSOLVING PRELIMINARY INJUNCTION THIRTY DAYS AFTER ENTRY OF ORDER After reviewing Plaintiffs objections and Defendants’ response to those objections, the court ADOPTS the Bankruptcy Judge’s Re...
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ORDER Debtor Birting Fisheries appeals the Bankruptcy Court’s order allowing a class proof of claim. Appellee “Lane Class” moves to dismiss the appeal on the ground that the parties’ “settlement agreement” renders moot the class proof of claim issue. The Court, having considered all papers filed in support of and in opposition to the motion to dismiss and the appeal of the Bankruptcy Court’s orde...
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MEMORANDUM OPINION ON MOTION TO SUBSTITUTE The issue before the Court is whether the trustee may be allowed to substitute as plaintiff in an action under section 727, after the deadline for complaints has passed. After reviewing the cases cited by the parties, the Court concludes that the weight of authority favors the trustee. Resolution of the matter centers on Rule 7041, F.R.Bankr.P., whic...
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MEMORANDUM OPINION FACTS On February 21, 1995, this ease under chapter 11 of the Bankruptcy Code came before this Court for confirmation of the debtor in possession’s (“DIP”) plan of reorganization. Appearing before the Court were Robert Shields, attorney for the DIP, David Evans, attorney for BancBoston, Harvey Wachsman, attorney for the unsecured creditors committee, Olin Brooks for the ban...
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ORDER This cause is before the Court on appeal from the Amended Final Judgment of Default entered on December 2,1993, by United States Bankruptcy Judge Thomas E. Baynes, Jr. Jurisdiction over appeals from the final judgments, orders, and decrees of the Bankruptcy Court is vested in the Federal District courts. 28 U.S.C. § 158(a). STANDARD OF APPELLATE REVIEW Findings of fact by the Bankruptcy Co...
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ORDER ON MOTION FOR STAY OF ORDER GRANTING MOTION FOR PAYMENT OF TRUSTEE’S FEES AND COSTS BY PROFESSIONALS FOR THE CHAPTER 11 TRUSTEE THIS IS a dismissed Chapter 11 case and the matter under consideration is a Motion for Stay of Order Granting Motion for Payment of Trustee’s Fees and Costs by Professionals for the Chapter 11 Trustee, filed by Dennis J. LeVine of Cramer, Haber, Me- ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation case, and the matter under consideration is the dis-chargeability vel non of the debt admittedly due and owing by Gregory E. Berhow and his wife, Mary Ann Berhow (Debtors) in the amount of $5,767.82. The claim of nondis-ehargeability is asserted by First Deposit National Bank (Bank) who contends that the ob...
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ORDER ON MOTION TO ASSUME COMMERCIAL BUSINESS LEASE THIS IS a Chapter 11 case and the matter under consideration is a Motion To Assume Commercial Business Lease filed by the Debtor on November 23, 1994. On December 14, 1994, Sam Verkauf and M. Verkauf Sons Properties, as Landlord, filed a Response to the Motion to Assume and Objection to the Assumption of the Commercial Business Lease. ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation ease and the matter under consideration is a claim set forth by Diane L. Jensen (Trustee) against Diane O’Connor (Ms. O’Connor) in a two-count complaint. In Count I the Trustee seeks to recover $50,000 which according to the Trustee is a voidable preference pursuant to § 547(b) of the Bankruptcy Code. The ...
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ORDER ON OBJECTION TO CLAIM OF YORK INTERNATIONAL CORPORATION THIS IS a confirmed Chapter 11 ease and the matter under consideration is the reorganized Debtor’s Objection to Claim Number 3278 filed by York International Corporation (York). The claim was filed in the amount of $619,564.57 and states that it is based upon “Indemnity for York’s liability to Limbach Company arising from sale by York t...
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FINDINGS OF FACT UPON REMAND THIS WAS the third Chapter 11 case filed by Mandalay Shores Cooperative Housing. Although the case has been dismissed, this Court retained jurisdiction for the limited purpose of determining the administrative expense claims that have been asserted pursuant to § 503 of the Bankruptcy Code. The matters under consideration are an Application for Payment of Compensation ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION This is a Chapter 7 liquidation case filed by Jerry Katzman (Debtor) and Helain Katz-man, his wife, originally under Chapter 13 of the Bankruptcy Code on February 12, 1993. The case was voluntarily converted on March 23, 1993 to a Chapter 7 case. The matter presently before the Court is a two-count complaint filed by Southern Commerce Ba...
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*890 MEMORANDUM OPINION AND ORDER AFFIRMING THE BANKRUPTCY COURT’S MEMORANDUM OPINION ENTERED ON JANUARY 31, 1994, AND THE BANKRUPTCY COURT’S FINAL JUDGMENT ON TRUSTEE’S COMPLAINT TO AVOID PREFERENTIAL TRANSFER ENTERED FEBRUARY 11, 1994 The appellant, Irving Gennet, trustee in bankruptcy for the debtor PC Systems, Inc., appeals from (1) the Bankruptcy Court’s Memorandum Opini...
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ORDER This adversary proceeding is now in the post-judgment, post-appellate phase of litigation. The Court issued money judgments in plaintiffs favor on August 8, 1994 against three defendants. The judgment and an interlocutory order entered May 20, 1994 were appealed to the District Court and affirmed. The judgment was issued in plaintiffs favor as a result of the defendants D.A. Cro...
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ORDER Before the court is a joint motion for summary judgment filed by plaintiff, Harry W. Pettigrew, Chapter 7 trustee for Amarlite Architectural Products, Inc., and defendant, Congress Financial Corporation (Southern) (“Congress”). Plaintiff seeks a determination of the validity and priority of liens, claims or interests and that Congress is entitled to all funds presently held by t...
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MEMORANDUM OPINION On April 27, 1994, the court held a continued healing on the motion of Debtor to modify his confirmed Chapter 13 plan and the objections of certain creditors thereto. This memorandum opinion concerns the objection of the Internal Revenue Service (hereinafter the “IRS”), a classified unsecured creditor of Debtor. The parties have stipulated that there are no disputed...
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OPINION This is a dispute between two debtors who have reorganized under chapter 11 plans confirmed by this court. A motion for summary judgment raises two principal questions: Has there been an amendment to a timely proof of claim filed in one ease by a pleading filed prior to the bar date in the present adversary proceeding, which is part of the other case? If not, to what extent sh...
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OPINION AND ORDER Before the Court is a Motion for Summary Judgment (docket No. 8) 1 filed by the trustee of debtor Kiddy Toys, Inc. (Kiddy) on October 1, 1992 against defendant PRUSA Distributing Corp. (PRUSA) pursuant to 11 U.S.C. § 547. Defendant filed its Opposition and Request for Summary Judgment (docket No. 17) on February 3,1993 to which plaintiff filed its Reply (d...
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DECISION ON MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT INTRODUCTION This adversary proceeding was commenced by Harold Young (‘Young” or “Trustee”), Chapter 7 Trustee of Wingspread Corporation (“Wingspread” or the “Debtor”), against Paramount Communications, Inc. (“Paramount”), Norman M. Hinerfeld (“Hinerfeld”), NCNB National Bank (“NCNB”) 1 and Kay-ser-Roth Corporati...
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Amended Memorandum of Decision on Appropriate Interest Rate to an Overse-cured Creditor in a Chapter 12 Family Farmer Case This contested matter is before 1 us on Bank’s objection to the interest rate Chapter *948 12 Debtors propose to pay on Bank’s over-secured claim. We hold that neither of the two rates advanced by the contending parties appropriately compensate...
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MEMORANDUM OPINION This matter is before the Court on defendants’ motion to dismiss plaintiffs nineteen- *959 count amended complaint for failure to state a claim upon which relief can be granted. For reasons discussed below, the motion will be denied. Certain duplicative counts included in the amended complaint will, however, be dismissed. I. PROCEDURAL BACKGROUND ...
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OPINION AND DECISION ON MOTIONS FOB SUMMARY JUDGMENT This matter is before the Court on the Motions for Summary Judgment filed by *978 Unisys Corporation, fka Sperry Univac Division of Sperry Corp. (“Unisys”) and Frederick M. Luper, Chapter 11 Trustee of the Lee Way Holding Company bankruptcy estate (“Trustee”), concerning the Trustee’s objection to claim number 5951 filed by Unisys. This...
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MEMORANDUM This case came before the court for hearing on May 17, 1994, upon the debtors’ motion filed April 20, 1994, requesting an order finding that attorney David Lufkin “has willfully violated the automatic stay of 11 U.S.C. § 362(a), thereby committing civil contempt.” This is a core proceeding. 28 U.S.C. § 157(b)(1) and (b)(2)(0). See In re Depew, 51 B.R. 1010, 1014 ...
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MEMORANDUM OPINION This matter comes before the Court on cross motions for summary judgment. Jones Truck Lines, Inc. (“Plaintiff’ or “Jones”), seeks to recover purported freight undercharges relating to transportation services provided for Republic Tobacco, Inc., n/k/a DRL Enterprises, Inc., (“Defendant” or “Republic”), between October 1988 and January 1989, under the Interstate Commerce ...
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ORDER SUSTAINING OBJECTIONS TO DEBTOR’S CLAIM OF EXEMPTION IN CERTAIN FLORIDA REAL ESTATE This Chapter 7 (converted from Chapter 11) case came on before the Court on April 18, 1994, for a hearing on the objections of the Trustee and two other creditors to the Debtor’s amended claims of exemption. Trustee Brian F. Leonard appeared on behalf of the bankruptcy estate. The Debtor appeared by ...
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