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All Reporters → br → Volume 342

Opinions in br Volume 342

DECISION REGARDING MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT The Business Bank (the “Bank”), which lent money to the debtor, Timothy Dean’s, Inc., brought this proceeding against William White, the trustee of the debtor’s estate under chapter 7 of the Bankruptcy Code, 11 U.S.C. § 101 et seq., and SLT Realty Limited Partnership, doing busines...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Before the Court is a motion filed on October 21, 2004, by New York State Mortgage Loan Enforcement and Administration Corporation (“MLC”), as agent for the New York State Urban Development Corporation (“UDC”), doing business as Empire State Development Corporation (“ESDC”)1 and New York State Project Finance Agency (“PFA”) (coll...
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DECISION AND ORDER MODIFYING AND AFFIRMING ORDER OF BANKRUPTCY COURT CONFIRMING DEBTORS’ FIFTH AMENDED JOINT PLAN OF REORGANIZATION By an Order of this Court dated May 5, 2006, granting Appellant’s Motion for an Expedited Appeal, Appellant Pasquale *48 Cartalemi, Sr. (“Pat”) seeks appellate review of an Order of the Bankruptcy Court dated April 28, 2006, confirming Debtor’s F...
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MEMORANDUM OPINION This opinion is with respect to the defendants Discovery Re 1 and United States Fidelity & Guaranty Co.’s motion to dismiss (Adv.Doc. # 13) the plaintiff OHC Liquidating Trust’s adversary complaint (Adv.Doc. # 1). For the reasons stated below, the Court will grant the motion as to Counts I, II, V and VI, but will deny the motion as to Counts III, IV and VII. ...
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UNDER ADVISEMENT DECISION RE: TRUSTEE’S MOTION FOR TURNOVER OF PROPERTY On April 22, 2004, Debtor Caroline Niles filed for Chapter 13 relief. At the time of her filing, Debtor valued her Gilbert, Arizona home in her Schedules at $180,000 *73 with a mortgage owing of $160,000. Debt- or claimed a homestead exemption under Arizona Revised Statute section 33-1101(A). Her Plan was confirmed on Nov...
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MEMORANDUM DECISION REGARDING OBJECTION TO PRIORITY CLAIM OF JEFF MISHKIN AND COUNTER-MOTION TO ALLOW ADMINISTRATIVE CLAIM OF MARCUS & MILLICHAP, INC. The Debtor objects to a proof of claim filed by Jeff Mishkin on behalf of Marcus & Millichap, as a priority claim in the amount of $125,000 (the “Mishkin Claim”). The Creditors Committee joins the Debtor in objecting to the Mishk...
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MEMORANDUM DECISION I. INTRODUCTION Margarita Castaneda (“Debtor”) has filed this motion to continue the automatic stay as to all creditors beyond the 30th day after the filing of this bankruptcy case pursuant to 11 U.S.C. § 362(c)(3)(B)(“Mo-tion”). 1 Although the Motion is unopposed, this section requires a court to make its own determination whether it may continue the stay. For the rea...
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ORDER On this 8th day of March, 2006, this matter came on for trial on the Debtor’s Motion to Avoid Judicial Lien on Real Estate and the Objection thereto filed by the State of Oklahoma ex rel Board of Regents for the University of Oklahoma (“OU”). Debtor appeared pro se, and OU was represented by Richard Winblad. After hearing and reviewing the evidence and testimony presented by the parties, t...
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ORDER DENYING WOODBURY FINANCIAL SERVICES, INC.’S MOTION FOR RULE 9011 SANCTIONS (Doc. No. 221) THIS CAUSE came on for hearing with notice on January 25, 2005, to consider *102Woodbury Financial Services, Inc.’s Motion For Rule 9011 Sanctions (Woodbury). (Doc. No. 221). Woodbury contends that 21st Century Communications, Inc. (the Debtor) violated Rule 9011 of the Federal Rules of Bankruptcy Pro...
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ORDER This matter came on the Trustee’s Motion for Turnover of the Debtor’s wheelchair equipped van (Doc. 11), Debtor’s Objection to the Motion for Turnover (Doc.14), Debtor’s Motion to Dismiss Case (Doc. 20), and Trustee’s response to the Motion to Dismiss Case (Doc. 21). The following Findings of Fact and Conclusions of Law are made after reviewing the evidence. FINDINGS OF FACT Debto...
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MEMORANDUM OPINION This case is back before the Court on remand from the United States District Court for the Middle District of Georgia by Order of the Honorable W. Louis Sands, Chief Judge. The case has been remanded to this Court for the sole purpose of determining the following two issues: (1) Whether Ayres Aviation Holdings, Inc. properly raised the legal issue of whether it was a “buyer i...
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ORDER DENYING REQUEST FOR HEARING TO BAR ENTRY OF DISCHARGE AND DIRECTING THE CLERK OF THE COURT TO ENTER DISCHARGE On January 24, 2006, the court entered its Order and Notice re Opportunity to Request Hearing under 11 U.S.C. Section 727(a)(12) to Bar Entry of Discharge (D.E. No. 17), which gave notice to any party in interest to the debtor’s case that a request for a hearing to consider barrin...
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ORDER Seaton Gras, proceeding pro se, appeals the bankruptcy court’s decision sustaining the trustee’s objection to certain claims of creditors. Gras also contends that the bankruptcy court improperly denied him an opportunity to influence the court’s decision on whether to disallow the creditors’ claims and that the trustee’s dual role as a plaintiff in the adversary action and trustee in the u...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently under consideration by the Court is a motion filed by Gary L. Surprise and Mary Ann Surprise (collectively, the “Debtors”) on October 3, 2005, seeking damages from HSBC Auto Finance, fik/a Household Auto Finance, a/k/a Household Automotive Finance (“HSBC”) for an alleged violation of § 362 and § 524 of the Bankruptcy ...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION This appeal arises out of interdebtor and intercreditor disputes in the jointly administered bankruptcy proceedings of Adelp-hia Communications Corp. (“ACC”) and 230 of its direct and indirect subsidiaries (collectively “Debtors”), including Arahova Communications, Inc. and its direct and indirect subsidiaries (collectively “Arahova De...
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DECISION AND ORDER Pending before the Court is the motion of appellees Loral Space & Communications Ltd. (“Loral Ltd.”) and its affiliated reorganized debtors and debtors in possession (collectively, “Loral” or the “Reorganized Debtors”) to dismiss as moot the appeal of pro se appellant Loral Stockholders Protective Committee (“LSPC”) from two orders of the United States Ba...
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DECISION ON BANK LENDERS’ CLAIMS TO ADDITIONAL INTEREST In this contested matter in the jointly administered chapter 11 cases of Adelphia Communications Corporation and its subsidiaries (the “Debtors” or “Adelphia”), the Court has before it, as now relevant to the size of the reserves that the Debtors will have to fund under them plan of reoi'gani-zation, issues with respect to aspects of...
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MEMORANDUM OF OPINION APPROVING SETTLEMENT AGREEMENTS Before the Court is a motion by the Debtors to approve two settlements modifying retiree benefits pursuant to 11 U.S.C. § 1114(e)(1)(B). One settlement was reached with the Milwaukee Unions, 1 *160 while the other settlement was reached with an Official Committee of Retired Employees (the “Retiree Committee”). ...
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MEMORANDUM OF OPINION The Chapter 7 Trustee (the “Trustee”) of the above-named Debtor brought an adversary proceeding against defendants, Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage Company (collectively, “Wells Fargo”), to recover mortgage payments made by the Debtor as constructive fraudulent transfers under § 548 of the Bankruptcy Code. Before the Court is Wells Fargo’s motion...
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MEMORANDUM OPINION 1 Before the Court is the Request of Sumner A. Barenberg, Ph.D. for Allowance of Administrative Expense Pursuant to 11 U.S.C. § 503(b) (the “Request”). It is opposed by the United States Trustee (the “UST”) and the chapter 7 trustee. For the reasons set forth below, the Court will deny the Request. 1. BACKGROUND Bernard Technologies, Inc...
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OPINION In this adversary proceeding, the Chapter 7 Trustee, Andrea Dobin, seeks to avoid certain transfers pursuant to a property settlement agreement between the Debtor, Phyllis Hill, and her ex-husband, Daniel Hill, as part of their divorce proceeding. It is the Trustee’s contention that the terms of the divorce settlement agreement were made disproportionately favorable to the non...
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MEMORANDUM OPINION AND NOW, this 8th day of May, 2006, upon consideration of (a) the complaint filed by the IUE-CWA Pension Fund, et al. (hereafter “the Pension Fund”), against Joseph Piccirilli (hereafter “Piccirilli”), which complaint was filed first in the United States District Court for the District of New Jersey and then removed to this Court by Pittsburgh Brewing Company, Inc., the insta...
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MEMORANDUM OPINION The matter before the Court for consideration is the Complaint of the pro se Debtor, Cathy S. Holler, entitled “Amended Objection to Claim” filed against Fairbanks Capital Corporation Servicing Center, Defendant. In light of the final state court judgment rendered prior to the filing of the within bankruptcy, the Court lacks subject matter juri...
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MEMORANDUM OPINION Presently pending and ready for resolution is a motion to disqualify Bradford Englander and the firm of Linowes & Blocher (“L & B”) from representing Michael Ahan (“Ahan”), a creditor in the bankruptcy case of Nader Modanlo (“Debtor”), Case No. 05-26549-NVA. 1 The case is before this court on appeal from the Order of United States Bankruptcy Judge Nancy V. Al...
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MEMORANDUM OPINION This case is before the court on appeal from the Order of United States Bankruptcy Judge Nancy V. Alquist appointing a trustee upon the motion of a creditor, Michael Ahan, in the Chapter 11 case filed by Nader Modanlo (“Debtor”), Case no. 05-26549-NVA. (Paper 6). Ahan also has filed a motion to supplement the record on appeal. (Paper 11). Oral argument is deemed unneces...
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Memorandum of Decision This matter has come before the court on the court’s own Order To Show Cause Why Foreclosure Sale Should Not Be Found Void As A Violation Of The Automatic Stay (the “Order to Show Cause”). The specific issue for decision is the validity of a foreclosure sale that was conducted after the petition date and before dismissal, where the debtor was subsequently found ...
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ORDER THIS CORE PROCEEDING comes before the Court on Debtors (“Debtors”) Donnie Joe McGhee and Janie Lou McGe-hee’s Motion for Clarification of Discharge. 1 Specifically, the Debtors are asking for clarification as to the meaning of the statutory language contained in 11 U.S.C. § 1328(f), which was added to the Bankruptcy Code by the recently enacted Bankruptcy Abuse Prevention and Consumer P...
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MEMORANDUM OPINION THIS CORE PROCEEDING comes before the Court on Plaintiff Marianne F. Maes’s (“Plaintiff’) Complaint under Section 523(a)(5) and Section 523(a)(15), and Defendant/Debtor David Raoul Maes’s (“Defendant”) Answer and Counterclaim. The Plaintiff is seeking to have certain debts totaling approximately $29,000.00 deemed nondischargeable. Pursuant to the parties Separation Agreement the...
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MEMORANDUM-OPINION THIS ADVERSARY PROCEEDING is before the Court after the conclusion of a trial on the merits of the cause of action brought by Plaintiff against Defendant under 11 U.S.C. §§ 523(a)(5), 523(a)(15) and 727(a)(2)(A). For the reasons set forth below, the Court determines that Defendant is entitled to a discharge and that the indebtedness of the Defendant to Plaintiff is dischargeable...
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ORDER INTERPRETING 11 U.S.C. § 362(c)(3)(A) AND DENYING MOTION TO EXTEND THE AUTOMATIC STAY PURSUANT TO 11 U.S.C. § 362(c)(3)(B) On March 2, 2006 the Court held a hearing on the following pleadings: (1) a “Motion for Order Confirming Inapplicability of Automatic Stay ...” [docket # 13] filed by Mortgage Electronic Registration Systems, Inc. (“MERS”); (2) debtor’s “Motion to Extend the Aut...
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OPINION The issue before this Court is how the new requirement imposed on Chapter 13 debtors of an “applicable commitment period” for Chapter 13 plan payments should be interpreted. Londale Beasley, the Debtor, filed his Fourth Amended Chapter 13 Plan and seeks to have it confirmed. John H. Germeraad, the Chapter 13 Trustee, objected to confirmation on several grounds, including an alleged fail...
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ORDER This matter comes before the Court on Expeditors International of Washington, Inc.’s [“Expeditors”] Motion for Partial Summary Judgment on Expeditors’ Counterclaim filed on August 29, 2005. The matter was fully briefed on November 11, 2005. Based upon the pleadings and evidence presented, the Court makes the following Findings of Fact: 1. On October 16, 2000 [the “Petition Date”], the Debtor...
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ORDER This matter comes before the Court on Expeditors International of Washington, Inc.’s [“Expeditors”] Motion for Partial Summary Judgment on Plaintiffs Complaint filed on August 29, 2005. The matter was fully briefed on November 11, 2005. Based upon the pleadings and evidence presented, the Court makes the following Findings of Fact: 1. On October 16, 2000 [the “Petition Date”], the Debtors fi...
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This is an appeal from an Order of the Bankruptcy Court 1 entered January 20, 2006, in which the Court dismissed the Debtors’ Chapter 11 bankruptcy case for failure to comply with 11 U.S.C. § 109(h). We affirm. *297 On January 20, 2006, Debtors Kevin Mark Hedquist and Terri Lynne Hedquist, pro se, filed a joint voluntary Chapter 11 bankruptcy petition. Along with their Petition, they file...
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ORDER The matter before the Court is Debtor’s Motion for Redemption Pursuant to 11 U.S.C. § 722 (“Motion for Redemption”) and Creditor’s Response to Debtor’s Motion for Redemption (“Creditor’s Response”). A hearing on this matter was *302held on November 28, 2005, where both parties appeared by counsel. The Court thereafter took the matter as submitted. Upon consideration of the record as a whol...
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MEMORANDUM OPINION In a case filed under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), the Debtors, Robert M. and Shirley A. Renicker, filed a chapter 13 plan proposing to pay what they determined to be all of their disposable income for sixty months. 1 Nothing *306 unusual there except that the Debtors, who have a combined net income of approximately $6,...
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MEMORANDUM DECISION I. INTRODUCTION Priscilla Montoya (“Debtor”) has filed this motion to continue the automatic stay as to all creditors beyond the 30th day after the filing of this bankruptcy case pursuant to 11 U.S.C. § 362(e)(3)(B)(“Mo-tion”). 1 Although the Motion is unopposed, this section requires a court to make its own determination as to whether it may continue the stay. For the...
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MEMORANDUM of DECISION In this Chapter 11 bankruptcy, after due notice, a hearing was held February 7, 2006, in Butte on the Motion to Dismiss Case filed by Fremont Investment and Loan (“Fremont”) on November 22, 2006. Fremont was represented at the hearing by attorney Ross Richardson, of Butte, Montana, and the Debtor was represented by attorney James A. Patten, of Billings, Montana. Kevin Det...
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ORDER DENYING REHEARING The matter before the Court is the Motion for Rehearing (“Motion”), filed March 28, 2006, by the Appellants. The Trustee filed an objection to the Motion on March 31, 2006. Neither Federal Rule of Bankruptcy Procedure 8015 nor Rule 8015-1 of this Court’s Local Rules states the substantive requirements for motions for rehearing. However, when those Federal and ...
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MEMORANDUM AND ORDER DENYING MOTION OF FIRST NATIONAL BANK OF KANSAS TO COMPEL TURNOVER OF VEHICLE The issue before the Court is whether the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (hereafter “BAPCPA”) eliminated the “fourth option,” an alternative to reaffirmation or redemption available before BAPCPA in the Tenth Circuit for secured debts in Chapter 7 cases. The ...
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MEMORANDUM THIS MATTER is before the Court on the Debtors’ Motion to Avoid Lien. The Motion to Avoid Lien seeks to avoid a transcript of judgment recorded by H. Davidson & Associates, Inc. (“Davidson”) as a judicial lien that impairs the Debtors’ homestead exemption in accordance with 11 U.S.C. § 522(f). Davidson responded to the Motion to Avoid Lien, and the Court held a final hearin...
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*360 ORDER OVERRULING TRUSTEE’S OBJECTION TO DEBTOR’S EXEMPTIONS This case came on for hearing on April 27, 2006, upon the Chapter 7 Trustee’s Objection to Exemptions (the “Objection”) (Doc. 16). The Debtor filed her Chapter 7 petition on January 13, 2006, along with her schedules and statement of financial affairs and other required documents. In her original Schedule C filed with the petiti...
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ORDER DENYING REGION BANK’S MOTION TO ALLOW LATE CLAIM This case came before the Court upon Region Bank’s Motion to Allow Late Claim. Upon Findings of Fact and Conclusions of Law separately entered, it is ORDERED: *363Region Bank’s Motion to Allow Late Claim is denied....
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ORDER DENYING TSSI’S MOTION TO DISMISS (Doc. No. 230) THIS CASE came on for hearing on January 15, 2005 to consider the Motion to Dismiss filed by Tower Square Securities, Inc. (TSSI) pursuant to Bankruptcy Rules 7012 and 7009 which incorporate into the Bankruptcy Code Fed.R.Civ.P. 12(b)(6) and 9(b). TSSI moves to dismiss the Amended Complaint filed by 21st Century Satellite Communications, Inc....
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ORDER GRANTING DEBTORS’ MOTION FOR ORDER AUTHORIZING DISTRIBUTION OF REMAINING SALES PROCEEDS PURSUANT TO SECOND AMENDED JOINT PLAN OF REORGANIZATION This case came before the Court upon Debtors’ Motion for Order Authorizing Distribution of Remaining Sales Proceeds Pursuant to Second Amended Joint Plan of Reorganization. Upon Findings of Fact and Conclusions of Law separately entered, it is ORDE...
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ORDER ON (1) MOTION TO REQUIRE RELEASE OF POST-PETITION LIENS OF INTERNAL REVENUE SERVICE; (2) DEBTOR’S MOTION FOR SUMMARY JUDGMENT; AND (3) UNITED STATES’ MOTION FOR SUMMARY JUDGMENT THIS CASE came before the Court for hearing to consider (1) the Motion to Require Release of Posb-Petition Liens of the Internal Revenue Service filed by the Debtor, William O’Callaghan; (2) the Debtor’s Motion for S...
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ORDER ON JOINT MOTION OF PLAN ADMINISTRATOR AND WELLS FARGO FOOTHILL, INC., FOR CIVIL CONTEMPT AND SANCTIONS AGAINST THE AMERICAN CLUB These confirmed chapter 11 cases came on for hearing on March 20, 2006, on the joint motion (the “Motion”) [CP 3347] of Jeffrey H. Beck, the post-confirmation Plan Administrator for these liquidating Debtors, and Wells Fargo Foothill, Inc. (“Foothill,” ...
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OPINION REGARDING MOTION FOR ORDER ON ATTORNEY-CLIENT PRIVILEGE Before the court is the Motion of Meade Malone, Official Liquidator for Gold & Ap-pel Transfer S.A., for Order on Attorney-Client Privilege (D.E. No. 40, filed January 5, 2006), in which Meade Malone, the Official Liquidator for Gold & Appel Transfer S.A. (“Gold & Appel”), seeks an order declaring that he controls the att...
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DECISION REGARDING DEFENDANTS’ MOTION TO DISMISS Defendants William C. Sanchez, M.D., and William C. Sanchez, M.D., P.C. (collectively the “Defendants”) have filed a motion to dismiss this adversary proceeding brought by Premium of America, LLC (“POA”) as successor-in-interest to the debtor Premium Escrow Services, Inc. (“PES”) with respect to certain claims assigned to POA by former inve...
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MEMORANDUM AND ORDER ON AN APPEAL FROM THE BANKRUPTCY COURT BACKGROUND On December 16, 2005, Patti-Ann Beau-cage brought this appeal of a decision of *409 the Bankruptcy Court (Hillman, J.), approving the Internal Revenue Service’s (IRS) set-off of a refund of her 2004 taxes against an accrued pre-petition tax liability. 1 The facts are not in dispute. On January 7, 2005, Beaucage fil...
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MEMORANDUM OPINION The issue presented in this Chapter 13 case, which is governed by the Bankruptcy Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), is whether a below median debtor’s “projected disposable income,” as that term is used in section 1325(b)(1)(B) 1 is determined from Form B22C or whether “projected disposable income” is determi...
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OPINION The plaintiffs Official Committee of Asbestos Claimants of G-I Holdings, Inc., suing on behalf of the Chapter 11 Bankruptcy Estate of G-I Holdings, Inc. f/k/a GAF Corporation, et al. (“The Committee”) has moved to discover certain communications which have been withheld by the defendants Samuel J. Heyman (“Hey-man”), G-I Holdings Inc. (“G-I”), and International Specialty Produ...
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MEMORANDUM OPINION 1 Before the Court is the Trustee’s Objection to the Debtors’ Exemptions and Motion for the Entry of an Order Compelling Turnover of Property of the Debtors’ Estate pursuant to 11 U.S.C. § 542 and Entry of an Order Declaring Certain Property to be Property of the Debtors’ Estate. The Debtors oppose the relief sought by the Trustee. For the reasons stated ...
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OPINION The court, sua sponte, ordered a secured party and its counsel to explain certain anomalies related to the execution of certifications, including a certification which would support stay relief to allow foreclosure to proceed against Jenny Rivera’s residence in Lodi, New Jersey. These parties were to show cause why sanctions should not be imposed if the court’s susp...
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MEMORANDUM AND NOW, this 5th day of June, 2006, upon consideration of (a)the adversary complaint filed by Jesse and Carmella Neil (hereafter collectively “the Neils” or, respectively, “Mr. Neil” or “Mrs. Neil”), wherein the Neils seek a determination that their unliquidated and disputed claim against Leonard Lu-cotch, Jr., the above-captioned debt- or (hereafter “the Debtor”), is non-discha...
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MEMORANDUM OPINION AND ORDER Plaintiff, Bankruptcy Trading & Investments, L.L.C. (“BTI”), brought this action against defendant, Chiron Financial Group, Inc. (“Chiron”), for breach of fiduciary duty and professional malpractice arising out of a business relationship between the parties, the purpose of which was to take control of a debtor in bankruptcy. BTI originally brought its acti...
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MEMORANDUM OPINION ON: (1) THE DEFENDANT’S MOTION TO ENLARGE TIME TO FILE NOTICE OF APPEAL; AND (2) THE PLAINTIFF’S MOTION TO STRIKE/DISMISS DEFENDANT’S MOTION TO EXTEND TIME TO FILE NOTICE OF APPEAL AND REQUEST FOR EVIDENTIARY HEARING I. INTRODUCTION On March 31, 2006, this Court held a hearing (the Hearing) on: (1) the Motion of pro se Defendant Valorie Davenport (the Defendant) 1 to En...
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MEMORANDUM-OPINION This matter is before the Court on the Motion to Dismiss of Defendant/Debtor Timothy Sneed (“Debtor”) and the Objection to Motion to Dismiss of PlaintiffiCred-itor George Rodriguez (“Rodriguez”). The Court reviewed the written submissions and arguments of counsel for the parties and for the following reasons DENIES the Debtor’s Motion to Dismiss. FACTS On March 29, 2005, De...
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MEMORANDUM This proceeding comes before the Court on the Motion and Memorandum *511 by Chapter 7 Trustee To Dismiss Adversary Proceeding Filed by Donald M. Heavrin and the Motion by Chapter 7 Trustee for Sanctions Against Donald M. Heavrin and Chris Hodge filed by J. Baxter Schilling, the Chapter 7 Trustee (hereinafter the “Trustee”). Donald M. Heavrin (hereinafter “Heavrin”) filed a response...
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MEMORANDUM-OPINION THIS ADVERSARY PROCEEDING is before the Court on the Motion of K & B Capital, LLC, Robert Kattula and Maria Kattula to Dismiss Complaint (the “Instant Motion”). For the reasons discussed below, the Court denies the Instant Motion. The Defendant-movants make several arguments as to why the Complaint of Plaintiff should be dismissed in its entirety or at least as to ...
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MEMORANDUM OPINION This matter is before the Court upon the Motion for Summary Judgment of Plaintiff John A. Palik (“Plaintiff’) filed on December 30, 2005. On February 8, 2006, with leave of Court, Debtor/Defendant Jody L. Sexton (“Debtor/Defendant”) filed her Opposition Brief to the Motion for Summary Judgment. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 13...
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MEMORANDUM OPINION Chase Manhattan Mortgage Corporation (“Chase”), which holds a claim secured by a mortgage on the residence of the Chapter 13 debtor, Paul Allen Tudor (“Debt- or”), filed a proof of claim that includes a mortgage arrearage of $9,230.35. The Debtor objected to the arrearage claim, arguing that three specific components of the claim should be disallowed: (1) prepet-iti...
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ORDER On December 19, 2005, Eric and Shauna Scruggs (“Debtors”) filed a voluntary petition for relief under the provisions of Chapter 13. The Debtors’ plan proposed to pay the sum of $854.00 per month to the Trustee for a period of 60 months. The plan listed the debt owed to GMAC as $38,519.00 and included payments to GMAC under the heading of “PMSI Secured Claims to which § 506 Valuation is ...
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ORDER DENYING MOTIONS TO REFUND FEES This ease came on for hearing on March 22, 2006 on motions by the Chapter 7 trustee, purportedly under 11 U.S.C. § 726(a), seeking a refund of professional fees. The United States Trustee twice joined the trustee’s motion. 1 Matthew R. Burton appeared on behalf of Thomas F. Miller, the trustee, Sarah J. Wencil appeared on behalf of the U...
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*583 ORDER DENYING DEBTOR’S MOTION FOR PRELIMINARY INJUNCTION, AND DISMISSING ADVERSARY PROCEEDING This adversary proceeding is governed by the terms of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8 (“the Act”), because its underlying Chapter 13 case was commenced after the October 17, 2005 effective date of the Act. It came on before the Court on May 2...
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MEMORANDUM OPINION The Chapter 7 Trustee filed this adversary action seeking turnover of funds in three investment accounts held in the names of Debtors Donald McGehee (“Don”) and Sharol McGehee (“Sharol”). This is a core proceeding under 28 U.S.C. § 157(b)(2)(E) over which the Court has jurisdiction pursuant to 28 U.S.C. § 1334(b), 157(a), and 157(b)(1). The following constitutes my ...
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ORDER SUSTAINING, IN PART, TRUSTEE’S OBJECTION TO EXEMPTIONS IN 2000 CADILLAC ESCALADE The Chapter 7 Trustee objects to the Debtors’ claimed exemptions in a 2000 Cadillac Escalade on the ground that any equity in the car resulted from his powers under 11 U.S.C. § 544 and, therefore, the Debtors cannot claim an exemption pursuant to 11 U.S.C. § 522(g). The Debtors respond to the Trustee’s Obje...
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MEMORANDUM OPINION In a case filed under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”): 1 Can the Court confirm a plan that proposes a payment in excess of a debtor’s disposable income calculated in accordance with 11 U.S.C. § 1325(b)(2)? Can the Court confirm a chapter 13 plan that runs less than three years? Those are the issues before the Court toda...
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MEMORANDUM OPINION The Chapter 13 Trustee filed a Motion to Deny Confirmation of the Debtors’ Chapter 13 Plan, asserting that the Plan could not be confirmed because the Debtors propose a repayment period of less than sixty months and because the Debtors claim a deduction from their monthly income for a vehicle they own free and clear of liens, both in violation of 11 U.S.C. § 1325(b). Subseq...
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MEMORANDUM OPINION Thomas and Teresa Hodges (Debtors) are husband and wife. They filed a Chapter 7 bankruptcy case in 2003. They employed the law firm of Carlson, McMahon & Sealby, PLLC (CMS) to handle their case. CMS contends that Debtors owe it money for handling the bankruptcy. CMS assigned Debtors’ bill to Armada for collection. The relationship between these three parties is rather i...
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ORDER On the 27th day of April, 2006, the United States Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. 707(b)(1) Based on Presumption of Abuse Arising Under 11 U.S.C. 707(b)(2) with Authority in Support and with Notice and Opportunity for Hearing, Objection to Motion to Dismiss, filed by the Debtors, United States Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. 707(b)(3) with Authority i...
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MEMORANDUM OPINION This cause is before the court on appeal from a final order entered by the United States Bankruptcy Court for the Northern District of Alabama, Northeastern Division on October 19, 2005. Jurisdiction for this appeal exists under 28 U.S.C. § 158(a)(1) and 28 U.S.C. § 1292(b). ISSUE Whether abstention doctrines applied to this involuntary bankruptcy case making it an error of...
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ORDER DENYING DEBTOR’S MOTION FOR EXEMPTION FROM CREDIT COUNSELING AND DISMISSING CASE This Case is before the Court upon Debtor’s Motion for Exemption from Credit Counseling, or in the alternative to Extend Time for Compliance. Debtor filed her petition in bankruptcy on November 29, 2005, and is therefore subject to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-P...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon Motion of Mazak Corporation to Reclassify the Claim of Tennessee Engine Works (the “Motion to Reclassify”). The Court conducted a hearing on the matter on November 3, 2005. At the conclusion of the hearing, the Court directed the parties to submit memoranda in support of their respective positions. Upon the evidence and...
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ORDER ON MOTION TO ASSUME LEASE AGREEMENT AND LEASE AGREEMENT ADDENDUM (Doc. No. 162) THE MATTER under consideration in the above-captioned, yet-to-be confirmed Chapter 11 case is a Motion to Assume Lease Agreement and Lease Agreement Addendum (Doc. No. 162) (Motion to Assume) involving an unexpired non-residential lease entered into by Southwest Florida Heart Group, P.A. (Debtor) and Heart Grou...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Trustee’s motion for a determination that the personal property identified on the debtor’s Schedules B and D filed with the Bankruptcy Court is of consequential value or benefit to the bankruptcy estate. A hearing having been held on March 8, 2006, the Court makes the following findings of fact and conclusions of law....
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Debtor’s Motion for Confirmation of the Chapter 13 Plan and the Chapter 13 Trustee’s Objection to Confirmation. The Court held a hearing on March 2, 2006 and, at the conclusion, instructed the parties to submit memorandum of law in support of their respective positions. The Court makes the following Findings of Fac...
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MEMORANDUM OPINION Should a debt be excepted from the discharge — under Section 523(a)(2) of the Bankruptcy Code, for fraud, false pretenses, or use of a materially false writing regarding the debtor’s financial condition — where the debtor knowingly posed as a home buyer to obtain a mortgage loan for the purchase of a home for persons having sub-standard credit? By her own admission,...
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ORDER ON ORDER TO SHOW CAUSE (Doc. No.118) THE MATTER under consideration in this Chapter 7 case of Edward D. Ramsey and Kathi L. Ramsey (the Debtors) is an Order to Show Cause directed to the Lee County Tax Collector, (Tax Collector) (Doc. No. 118) which ordered the Tax Collector to appear before the undersigned to show cause, if it has any, why it should not be held in contempt for its al...
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*665 ORDER DISCHARGING ORDER TO SHOW CAUSE AND ORDER ON CREDITOR RONALD A. SBROCCO AND ANGELA M. SBROCCO’S SECOND MOTION FOR CLARIFICATION OR ORDERS REGARDING AMOUNT OF SECURED CLAIM AND TO DETERMINE WHETHER THE DISCHARGE INJUNCTION HAS BEEN OR WILL BE VIOLATED BY ENFORCEMENT ACTIONS (Doc. Nos. 69 and 70) THE MATTERS under consideration in this Chapter 13 case of Patricia J. Hamilton (Debtor) ar...
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DECISION RE MOTION OF GRP REALTY, LLC FOR RELIEF FROM AUTOMATIC STAY AND OTHER RELIEF The instant case is the third bankruptcy case that has interfered with the efforts of GRP Realty, LLC (“GRP”) to obtain possession of real property located at 7247 15th Place, NW, Washington, D.C. GRP claims to own the property by reason of a foreclosure sale pursuant to a deed of trust which encumbered the ...
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DECISION RE PENDING MOTIONS The outcome of two pending motions depends on the date and time of the filing of the debtor’s petition under 11 U.S.C. § 301 to commence this case. Even though the debtor’s counsel, as an authorized electronic filer of case papers, electronically opened a docket reflecting this case as commenced on January 17, 2006, she did not file the debtor’s petition un...
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DECISION AND ORDER AFFIRMING JUDGMENT OF BANKRUPTCY COURT ENJOINING PROSECUTION OF A CERTAIN LAWSUIT IN THE NEW YORK STATE SUPREME COURT This appeal addresses the propriety of an Order and Judgment of the United States Bankruptcy Court (Hardin, J.), dated May 10, 2006, enjoining Appellant Pasquale Cartalemi. Sr. (“Pat”) from prosecuting an action entitled Pasquale Cartalemi, Sr., in...
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DECISION AND ORDER ON MOTION TO REJECT COLLECTIVE BARGAINING AGREEMENT Before the Court is a motion by debtor Comair, Inc. (“Comair” or “debtor”) to reject its collective bargaining agreement (the “Flight Attendant Agreement”) with its flight attendants represented by the International Brotherhood of Teamsters (the “IBT” or “Union”) under Section 1113 of the Bankruptcy Code. The Court held an...
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MEMORANDUM OPINION Pending before the Court is the Emergency Petition Of Imperial Tobacco Canada Limited For An Order Of Transfer Pursuant To 28 U.S.C. § 157(B)(5) (D.1.1). For the reasons discussed, the Court will exercise its discretion to abstain from exercising jurisdiction over the California Action and deny the Petition requesting transfer under Section 157(b)(5). BACKGROUN...
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OPINION I. INTRODUCTION In the course of administering a bankruptcy docket, a bankruptcy judge is obliged, from time to time, to decide whether a debtor is seeking to abuse the spirit of the Bankruptcy Code and is acting in bad faith. If such a finding is made, a court will deny the debtor access to the rehabilitative provisions of the Code and will dismiss the debtor’s b...
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OPINION On consideration before the court is a motion for partial summary judgment filed by On Point, LLC (“On Point”); responses and/or memoranda of law having been filed by the debtor, Mary A. Isom (Isom), the Chancery Clerk of Sunflower County, Mississippi (Chancery Clerk), and Greenpoint Credit, LLC (Greenpoint); and the court, having considered same, hereby finds as follows, to-wit: I. The...
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ORDER AFFIRMING THE JUDGMENT OF THE UNITED STATES BANKRUPTCY COURT On this day, the Court considered Cum-bre Development Corporation’s (“Cum-bre”) appeal from the October 28, 2004 Judgment of the United States Bankruptcy Court for the Western District of Texas (“Bankruptcy Court”). After considering Cumbre’s brief, the brief of Appellees G. Glen Kistenmacher, P.E. (“Kistenmacher”) and...
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Opinion on Duty of Debtors 1. Introduction. A debtor who does not correctly schedule creditors, who does not disclose related litigation, and who does not file suggestions of bankruptcy in other cases cannot have the benefits of the bankruptcy law. Although debtors may consciously or unconsciously omit information that the law and their lawyers require, once a lawyer discover...
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DECISION AND ORDER This cause is before the Court after a Hearing on the Debtors’ Motion for the Internal Revenue Service (“IRS”) to Turnover Debtors’ 2001 Tax Refund; and the Debtors’ Objection to the Motion for Relief from Stay filed by the IRS. Both these Motions were heard at the same time as they involved one overall issue for resolution: may the IRS setoff, pursuant 11 U.S.C. § ...
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MEMORANDUM ON OBJECTION BY NEW FALLS CORPORATION TO CONFIRMATION OF AMENDED CHAPTER 13 PLAN This contested matter is before the court upon the Objection By New Falls Corporation to Confirmation filed on February 21, 2006, and on the Objection By New Falls Corporation to Confirmation of Amended Chapter 13 Plan filed on April 5, 2006 (collectively, Objection to Confirmation), asking the court t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Adversary Proceeding relates to the joint Chapter 7 bankruptcy case of Michael and Kelly Donlevy.1 The plaintiffs, David and Kay Lefelstein (“Plaintiffs”) allege that pursuant to a construction contract between the Plaintiffs and *777the Defendant, the Defendant agreed to use funds given to him as a “material deposit” of $9,470 for payment to Chicago ...
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MEMORANDUM OF DECISION Before the court, in this voluntary chapter 7 bankruptcy of David Randall Bradley (“Bradley”), are two Orders to Show Cause and a Motion entitled “Debtor Donald Lee Austin’s Motion to Substitute Voluntary Chapter 7 Petition and for Order Confirming the October 15, 2005 Filing of Debtor Donald Lee Austin’s Voluntary Chapter 7 Petition, and for Order Transferring Case Bac...
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342 B.R. 790 (2006) In re MACHINERY, INC., Debtor. General Electric Capital Corp., Plaintiff, v. Union Planters Bank, N.A., & Machinery, Inc., Defendants. Bankruptcy No. 01-43526-293. Adversary No. 03-4623-293. United States Bankruptcy Court, E.D. Missouri, Eastern Division. April 25, 2006. *791 *792 *793 Norman W. Pressman, Goldstein & Pressman, P.C., St. Louis, MO, for Debtor. Jeffrey S...
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MEMORANDUM OPINION General Electric Capital Corporation (“GE Capital”) filed this adversary complaint against Union Planters Bank (“Union Planters”). The parties’ dispute centers on which entity’s security interest had priority with respect to certain cash proceeds (the “Lift Proceeds”) generated post-confirmation by Debtor, Machinery, Inc. (“Machinery”). Because Union Planters was a transferee...
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OPINION The chapter 7 trustee, Maureen Gau-ghan, appeals a final order of the bankruptcy court, entered April 11, 2005, which effectively denied her motion to compel the turnover of certain homestead funds claimed exempt by debtors, Frederick Edward and Cheryl Lynn Smith (collectively, “Debtors”). The trustee timely filed a notice of appeal on April 20, 2005. We REVERSE. I. FACTS The facts are und...
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MEMORANDUM of DECISION In this Chapter 13 bankruptcy, after due notice, a hearing was held September 20, 2005, in Billings on confirmation of Debtors’ Chapter 13 Plan filed June 22, 2005, and on the Trustee’s Objection to the homestead exemption claimed by Debtors. The Chapter 13 Trustee, Robert G. Drum-mond, appeared at the hearing in support of his Objection. Debtors were represented at the...
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MEMORANDUM OPINION These consolidated cases are before this court on appeal from a final order of the United States Bankruptcy Court for the Northern District of Alabama, Western Division. In the interest of judicial economy, these cases have been consolidated by pri- or order. JURISDICTION Case 04-G-3361-W arises out of a case which was removed from state court by Consu...
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*825 MEMORANDUM OPINION I. INTRODUCTION This matter is before the court on a Motion for Mandatory and Permissive Withdrawal of Reference and Transfer of Adversary Proceeding to District Court (Doc. # 1), filed by Defendants Michael Gallagher and the Gallagher, Lewis, Dow-ney & Kim law firm (collectively “Gallagher”) on April 20, 2006. The court entered a “show ca...
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ORDER This matter came on the Motion for Summary Judgment Allowing Unsecured Claim of Central Bank and Trust Co., Hutchinson, Kansas, as Indenture Trustee (“Motion”) (Doc. 290), the Amended Proof of Claim filed by Central Bank & Trust *832 Co., Hutchinson, Kansas, as Indenture Trustee (Claim no. 118), and Debtor’s response to Central Bank & Trust Co., Hutchinson, Kansas, ...
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ORDER This matter came on Insight Financial Credit Union’s (“Insight Financial” or “Creditor”) Motion for Rehearing on mov-ant’s Motion to Dismiss (Doc.12). Creditor’s Motion to Dismiss (Doc.6) was denied in a previous Order (Doc.10). The following Findings of Fact and Conclusions of Law are made after reviewing all of the evidence. FINDINGS OF FACT Debtor filed a Chapter 7 ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Proceeding is before the Court on the Motion of Defendants, Ken Mahaffey, CFC, as Tax Collector of Putnam County, Florida and W.L. Pritchett, Jr., CFA, as Putnam County Property Appraiser, to Dismiss Complaint for Lack of Jurisdiction. After a hearing on January 4, 2005, the Court makes the following Findings of Fact and Conclusions of Law: Find...
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ORDER DENYING DEFENDANT SUMMIT BROKERAGE SERVICE’S MOTION TO DISMISS (Doc. No. 200) THIS CASE came on for hearing on January 15, 2005 to consider the Motion to Dismiss filed by Summit Brokerage Services (Defendant) pursuant to Bankruptcy Rules 7012 and 7009 which incorporate into the Bankruptcy Code Fed.R.Civ.P. *84212(b)(6) and 9(b). The Defendant seeks to dismiss the Amended Complaint of 21st ...
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ORDER DENYING FSC SECURITIES CORPORATION AND SUNAMERI-CA SECURITIES, INC.’S MOTION TO DISMISS AMENDED COMPLAINT (Doc. No. 244) THIS CASE came on for hearing on January 15, 2005 to consider the Motion to Dismiss filed by FSC SECURITIES CORPORATION AND SUNAMERICA SECURITIES, Inc. (Defendants) pursuant to Fed.R.Civ.P. 12(b)(6) and made applicable to these proceedings by Bankruptcy Rules 7012 and 7009...
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ORDER DENYING DEFENDANT WOODBURY FINANCIAL SERVICES, INC.’S MOTION TO DISMISS THE AMENDED COMPLAINT AND MEMORANDUM IN SUPPORT THEREOF (Doc. No. 232) THIS CASE came on for hearing on January 15, 2005 to consider Woodbury Financial Services, Inc. (Defendant)’s Motion to Dismiss the Amended complaint of 21st Century Satellite Communications (Debtor). For the reasons stated orally and in open court,...
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ORDER DENYING CREDITOR JOHN RICHARDS HOMES BUILDING COMPANY, L.L.C.’S RENEWED MOTION FOR RELIEF FROM STAY AS TO THE GARNISHMENT ACTIONS AGAINST STN.COM AND ADELL BROADCASTING CORP. (Doc. No. 528) THIS CAUSE came on for hearing on March 24, 2005, to consider Creditor John Richards Home Building Company, L.L.C.’s Renewed Motion for Relief from the Automatic Stay as to the Garnishment Actions Again...
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*845 ORDER DENYING MOTION FOR REHEARING ON AND/OR RECONSIDERATION OF ORDER DENYING PRELIMINARY INJUNCTION and DENYING PLAINTIFFS’ EMERGENCY RENEWED MOTION FOR PRELIMINARY INJUNCTION AND/OR TO APPOINT PROPERTY MANAGER FOR METZ PROPERTIES and ORDER DEFERRING RULING ON DETERMINATION ON THE OWNERSHIP STATUS OF THE PROPERTIES (Doc. Nos. 30 and 36) THE MATTERS under consideration in the above-captione...
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*847 ORDER ON DEFENDANTS’ MOTION TO DISMISS OR FOR ALTERNATIVE RELIEF (Doc. No. 66) THE MATTER under consideration in these Chapter 11 cases of North Mandalay Investment Group, Inc., Metco Real Estate and Insurance, Inc., Robert J. Metz, and Metco Holdings, Incorporated, (collectively referred to as the Debtors) is a Motion to Dismiss or for Alternative Relief, filed by Financial Warehous...
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AMENDED ORDER This matter came on for consideration upon debtor’s Motion to Dismiss (Doc. No. *84928). The issue is whether a debtor may obtain a dismissal of voluntary Chapter 7 proceedings, over the objection of the trustee, where the debtor filed Chapter 7 based on misguided legal advice. After reviewing the pleadings and considering the parties’ arguments and the applicable law, this court ...
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ORDER ON MOTION TO DISMISS AND MOTION FOR PARTIAL SUMMARY JUDGMENT ■ (Doc. No. 62, 78) This is a yet-to-be-confirmed Chapter 13 case of Edward Carl Steffens and Diane Buttram Steffens (Debtors). The matters under consideration are (1) Creditor, Pelican National Bank’s Motion to Dismiss Debtors’ Chapter 13 Case as Non-Qualified Debtors as Per 11 U.S.C. §§ 104 & 109(e) (Doc. No. 62) filed by Peli...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Motion to Extend Time to File a Complaint Objecting to Discharge and/or Dis-chargeability filed by Creditors, Jonathan D. Legg and Diane P. Legg (collectively, the “Leggs”). The Court held hearings on April 6, May 11, and June 21, 2005. Based upon the evidence presented and the arguments of the parties, the Court m...
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ORDER ON DEBTOR’S SECTION mi REFUND CLAIM THE MATTER under consideration in the above Chapter 11 case is a claim for a tax refund under Section 1341 of the Internal Revenue Code filed by Terri L. Steffen (the “Debtor”). By virtue of 11 U.S.C. Section 505(a)(2)(B)®, this Court has the jurisdiction to rule on the Debtor’s eligibility to claim a tax refund under 26 U.S.C. § 1341. Th...
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FINDING OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION (Doc. No. 9) THE MATTER under consideration in this Adversary Proceeding in the Chapter *864 11 case of Terri L. Steffen (Debtor) is a claim asserted by the Debtor in her Amended Complaint. (Doc. No. 9) (the Complaint). Overseas Holdings Limited Partnership (OHLP) joined as co-plaintiff and, by virtue of ...
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ORDER ON OBJECTION OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO THE DEBTOR’S PAYMENT OF THE PREPETITION CLAIMS OF UTILITY COMPANIES AS ADEQUATE ASSURANCE OF FUTURE PERFORMANCE UNDER 11 U.S.C. § 366. (Doc. No. 281) The matter under consideration in this Chapter 11 case of Anchor Glass Container Corporation (Anchor or the Debtor) relates to the treatment of various utility c...
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ORDER ON EXAMINER’S APPLICATION FOR ALLOWANCE OF FEE COMPENSATION (Doc. No. 144); OBJECTION TO EXAMINER’S APPLICATION FOR ALLOWANCE OF FEE COMPENSATION (Doc. No. 150); JOINDER BY VILLAMORA, LTD., IN DEBTOR’S OBJECTION TO APPLICATION FOR ALLOWANCE OF FEE COMPENSATION BY EXAMINER (Doc. No. 160) THE MATTERS under consideration in this Chapter 11 case are (1) Examiner’s Application for Allowance of ...
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ORDER ON MOTION TO APPOINT A COMMITTEE TO REPRESENT RETIRED EMPLOYEES PURSUANT TO SECTION 1114 OF THE BANKRUPTCY CODE (Doc. No. 585) The matter under consideration in the Chapter 11 case of Anchor Glass Container *880 Corporation (the Debtor) is a Motion to Appoint a Committee to Represent Retired Employees Pursuant to Section 1114 of the Bankruptcy Code (Doc. No. 58...
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ORDER ON CONFIRMATION, OBJECTION BY J.C. BENEFIELD TO THE DEBTOR’S PLAN OF REORGANIZATION AND MOTION FOR CRAMDOWN AS TO J.C. BENE-FIELD (Doc. Nos. 32, 37 and 39) THE MATTERS under consideration in this Chapter 11 case of D & G Investments of West Florida, Inc. (Debtor) are the confirmation of the Debtor’s Chapter 11 *884 Plan of Reorganization (Doc. No. 32) (the Plan...
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ORDER DENYING DEBTOR’S MOTION TO ENFORCE DISCHARGE INJUNCTION AND FOR CONTEMPT THIS CAUSE came on to be heard on May 23, 2006, upon the debtor’s Motion to Enforce Discharge Injunction and for Contempt. The Court, having reviewed the Motion, the response memorandum filed by Horwitz & Associates, Inc. (“Horwitz”), having considered the argument of counsel, and being otherwise fully advised in the...
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