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Opinions in br Volume 37

ORDER This matter came before the court on the plaintiff’s complaint to set aside and cancel the foreclosure deed to the defendant. The defendant, in its answer, moved for dismissal of the complaint and modification of the automatic stay in order to complete the foreclosure and sale of the real estate involved on the grounds: that the real estate is not “property of the bankruptcy estate” as ...
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FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW This Chapter 11 case is before the Court pursuant to an Application for Approval of New Management, a Motion to Confirm Appointment of New Directors, and a Motion for Appointment of Committee of Equity Security Holders. A hearing on said motions was commenced on August 16, 1983, and completed on August 23, 1983. One of the major issues...
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MEMORANDUM The Complaint of the Plaintiff, Rogers Wholesalers, Inc., (“Rogers” or “the debt- or”) seeks to recover $50,106.49 for pharmaceutical goods sold and delivered by Rogers to the defendant, M.J. Industries (“M.J.”). The defendant’s Answer denies that it owes Rogers this amount. A trial was held on October 7, 1982. Based upon the testimony of the witnesses, Mr. John Nutter, President of ...
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MEMORANDUM ON SALE OF REAL ESTATE The Chapter 11 Trustee filed a Notice of Intended Sale of the real estate known as 143, 145-147, 153, 155-157, 159 Putnam Ave., a/k/a 12-14-16, 20-22-24-26 Elmer Street, Cambridge, Massachusetts. Although the Notice provided that the sales price was $210,000, the Trustee and the purchaser subsequently revised the purchase price to $220,500. As part of the same ...
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ORDER ON MOTIONS FOR SANCTIONS THIS IS a Chapter 11 reorganization case and the matters under consideration are three Motions seeking the imposition of sanctions against International Food Corporation of America (IFC), for its failure to comply with the discovery Rules, Bankruptcy Rules 7026-7037, in the above-captioned adversary proceeding. The Motions are filed by Elias Moron Arosemena (Arose...
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ORDER ON MOTION FOR REHEARING ON ORDER DISALLOWING TRUSTEE’S APPLICATION FOR ALLOWANCE THIS IS a Chapter 7 case and the matter under consideration is a Motion filed by the Trustee, who seeks a rehearing of a previous Order entered by this Court which disallowed the Trustee’s Application for Allowance. In order to put this matter in proper perspective, a brief- review of the record shall be help...
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MEMORANDUM AND ORDER TO COMPEL DISCOVERY James J. Novak (debtor) filed a chapter 13 petition on May 20, 1983, in which he listed all creditors as secured. The plan accompanying his petition, however, classified Major Machinery Corporation (Major Machinery) as a creditor whose debt was disputed and to whom no payment would be made. Major Machinery filed a proof of claim for $4,357.39, base...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT A hearing was held on November 9, 1983 on the plaintiff’s motion for summary judgment. William I. Kampf of Kampf, Orey, Landsman & Seesel appeared for the plaintiff/debtor. Thomas L. Aarestad appeared pro se and for defendants Catherine Hare and Hennepin County. The plaintiff herein seeks, through his complaint, turnover of property to the e...
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MEMORANDUM AND ORDER The Debtors, on May 24, 1983, commenced an action to avoid an alleged non-possessory, non-purchase money security interest in certain items alleged to constitute “implements or tools of the trade”. The property as to which the Debtors seek to avoid the Defendant’s security interest are those items listed in Schedule B-2(i) (with the exception of a John Deere Disc and ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT DENYING PLAINTIFF’S COMPLAINT AND GRANTING DEFENDANT’S COUNTERCLAIM IN PART This is an adversary action initiated by the plaintiff seeking a decree of the bankruptcy court subordinating its postpetition indebtedness to plaintiff under the doctrine of “equitable subordination”. The defendant has counterclaimed to recover the amount of the post...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE AND JUDGMENT DENYING THE WITHIN COMPLAINT FOR RELIEF This is an action in which plaintiff seeks to have the defendants’ discharge in bankruptcy denied on the grounds that they “have failed to keep or preserve books, records, documents, and papers from which their financial condition or business transactions might be ascertained”; that Donald...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a contested discharge proceeding and the matter under consideration involves a claim of non-dischargeability asserted by Montgomery Ward, the Plaintiff who commenced this adversary proceeding. It is the contention of the Plaintiff that the Defendant/Debtor, Dennis LaBuda, obtained money or property by false pretenses in that he...
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MEMORANDUM This matter is before the court on the motions of the Union Bank of Pulaski, Tennessee (hereinafter “Union Bank”), the United States of America on behalf of the Small Business Administration and Commodity Credit Corporation (hereinafter “SBA” and “CCC” respectively) and Columbia Production Credit Association (hereinafter “PCA”) to dismiss the debtors C. Kenneth and Marianna Frost’s Chap...
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MEMORANDUM DECISION The trustee seeks avoidance as a preference of certain’ transfers to two defendants. The matter was tried on December 20. The defendant, Viking Steel Products, Inc., did not respond. A separate judgment by default will be entered against that defendant. The defendant, Coastal Wholesale, Inc., has answered. (C.P. No. 4). It regularly sold pool supplies to the ...
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ORDER DENYING MOTION TO REOPEN CASE The debtor received a discharge on May 17, 1983 in this chapter 7 case which was closed on October 26, 1983. On December 8, 1983, the debtor moved under 11 U.S.C. § 350(b) that the case be reopened to void a State court judgment for $2,725 against the debtor upon a December 29, 1982, pre-bankruptcy divorce judgment confirming a marital settlement agreement....
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MEMORANDUM OPINION This case came on before this Court upon the removal by Herbert Weisberger, a creditor of the debtor, to this Court of a chancery suit between himself and the defendants pending in the Circuit Court of Henri-co County, Virginia. Subsequently, Robert E. Hyman, the trustee in bankruptcy for Roscoe M. Porter, Jr., was substituted as the plaintiff in this action and amended...
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ORDER ON OBJECTION TO CLAIM The matter before the Court is the debt- or’s objection to the claim of Haffelt Bros. Custom Carpet, Inc. For the reasons set out below, the Court finds that Haffelt Bros, has not provided sufficient documentation of its secured status and must, therefore, be classified as unsecured. The underlying claim of Haffelt Bros, arose from a contract obligating it...
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OPINION This controversy involves an objection by the debtor to a claim filed by two creditors of the debtor. In November of 1979, Thano Masters opened a restaurant in Ann Arbor, Michigan named Thano’s Company, a Michigan corporation, of which Masters was the sole stockholder. The corporation was in financial difficulty from the day it opened. The corporation had financed the purchase of substant...
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ORDER FOR SUMMARY JUDGMENT AND JUDGMENT. This matter came on for hearing on the motion of Norwest Bank Minneapolis, N.A. (“Norwest Minneapolis”) for summary judgment against the plaintiff on its amended complaint. Hendrik De Jong appeared on behalf of Norwest Minneapolis; James A. Rubenstein and Steven I. Winer appeared on behalf of the plaintiff, Briggs Transportation Company (“Briggs”) and Je...
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MEMORANDUM OPINION The likely effect of our opinion today will be to reduce by more than eighty per cent the number of discharge hearings in the Western District of Kentucky. Because we deal with a statute which apparently would deny that outcome, the result can obtain only with a lengthened reach of creative interpretation. To the extent that our exercise departs from what could be calle...
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MEMORANDUM OPINION The debtors filed herein a motion for authorization of sale and distribution of proceeds free of secured interests. At the time of the filing of the petition in bankruptcy the debtors were the owners of a piece of real property consisting of 43 acres. This property was encumbered by a first mortgage held by FLB and a second mortgage held by Associates. During the course of ...
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MEMORANDUM OPINION This matter came before the court at the hearing on confirmation of the debtor’s chapter 13 plan held on December 1, 1983. Ford Motor Credit Company, through (“FMCC”) its attorney, John W. Weil, contended that the agreement entered into between the parties on November 11, 1982 was a lease agreement. The debtor, through his attorney, Magar E. Magar, contended that said agreeme...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS an adversary proceeding and the matter under consideration is a Complaint filed by Beausejour Corporation (Beausej-our) against Offshore Development Corp. (Offshore), the Debtor in a Chapter 11 case presently pending before this Court. The Complaint sounds in two counts: Count I is an action for declaratory relief, pursua...
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ORDER In this chapter 11 proceeding, two creditors have filed motions seeking either dismissal, conversion or relief from the automatic stay. The debtor is a partnership in the business of manufacturing and distributing ice. The instant chapter 11 proceeding was filed on June 30,1983. In August, 1983 the debtor’s ice plant was damaged by a major fire, resulting in $36,000 of dam...
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MEMORANDUM DECISION This involuntary chapter 7 petition was tried on January 17. The facts are undisputed. The debtor’s principal debt is a note payable to the petitioning creditor. The debtor concedes that the note is in default and that he generally is not paying his debts as they become due, if that note is a debt which is still due. The debtor argues that the note was satisfied when a mor...
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OPINION The issue before us is whether the debt- or’s chapter 11 petition should be dismissed or converted to a chapter 7 proceeding and whether the debtor is entitled to take discovery before we reach the merits of the aforesaid motions. Under the circumstances of this case, we will allow the debtor to take discovery only for the limited purpose hereinafter set forth. Consequently, we wi...
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OPINION The debtors in this closed Chapter 7 case are moving to reopen this proceeding pursuant to 11 U.S.C. § 350(b) in order to have certain judgment liens on their real property cancelled. *116 The facts disclosed by the motion papers and the court’s records are few. On March 27, 1980 the Debtors, Michael and Lucille Schneider, filed a petition for relief under Chapt...
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MEMORANDUM DECISION AND ORDER Anne T. Wadsack, an attorney at law, was appointed guardian ad litem in a divorce proceeding between the debtor and her spouse involving contested custody of the couple’s child. Attorney Wadsack’s statutory duty was to “represent the [best] interests of the child ... as to custody, support and visitation.” 1 The Dane County Circuit Court...
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*127 MEMORANDUM OPINION Introduction: The plaintiff, Frances Holmes, (plaintiff) filed her complaint to determine the non-dischargeability of a state court judgment which she had obtained in the principal amount of $58,000, plus costs, interest, and attorney’s fee against the debtor-defendant, Charles S. Kraus, (debtor) on May 27, 1983. The debtor filed his Chapter 7 petitio...
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MEMORANDUM OF DECISION This is an action to determine the dis-chargeability of specific debts owing to the estate of John Neilson. From the evidence submitted, the Court finds the following facts. The debtor, Joseph J. Simpson, was a friend of the deceased, John Malcolm Neilson, for over three years. On June 18, 1979, the debtor co-signed a personal demand note between Neilson and the Nash...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The issue presented herein is whether a business partnership existed between Noble Ashline (hereinafter, Debtor) and Edward Guthrie (hereinafter, Guthrie) during 1979 and 1980. On August 27, 1982, the Debtor and his spouse, Beverly Ashline, filed a joint petition pursuant to Chapter 13, Title 11, U.S.C. (hereinafter, the ...
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DECISION ON OBJECTIONS TO CONFIRMATION The holders of 44% of the common stock of Toy & Sports Warehouse, Inc. (“TSW”), one of the debtors in possession in this consolidated reorganization case under Chapter 11 of the Bankruptcy Code, have objected to the confirmation of the debtors’ second amended consolidated plan of reorganization. Under this plan of reorganization, all of the common sh...
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MEMORANDUM OPINION This matter comes before the Court on the Objection of Citizen’s First National Bank of Princeton (“CFN”) to Confirmation of the Chapter 11 Reorganization Plan (the “Plan”) of the Debtor, S & W Enterprise (“S & W”). Attorneys John Isaacson of Princeton, Illinois, and Gregg Grimsley of Peoria, Illinois, represent CFN. Attorney Charles Beckman of Dixon, Illinois, represen...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW A hearing was held on January 3,1984 on Plaintiff’s Complaint, at which time, Raymond Okuma, Esq., represented Elaine S. Yamada, hereafter “Plaintiff”, and Eric Marn, Esq., represented Keith Mamoru Ya-mada, hereafter “Defendant”. The issue before this Court is whether the debt incurred during marriage and assumed by the husband in a “Property Settlement Agre...
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MEMORANDUM OPINION AND DECISION FACTS On February 18, 1982, involuntary petitions under Chapter 11 of the Code were filed against the debtor, Golden Plan of California, Inc. and its three related entities, State Loan Servicing, Inc., Financial Securities Agency, Inc., and Mid-Central California, Inc. Thereafter, on April 9, 1982 the court entered an order for relief, appointed Melvyn...
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MEMORANDUM OPINION The issue with which the Court deals in this opinion presents itself identically in two adversary cases in which the named defendant is James Bowen, i.e. In re James N. and Donna C. Bowen, 83-170-BK-J-GP, adversary 83-322, Georgia Higher Education Assistance Corporation v. James N. Bowen and adversary 83-823, Board of Regents of the University of Georgia v. James N. Bowen....
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OPINION AND ORDER (Corrected) Pending before the court is the plaintiffs motion for relief from the automatic stay with respect to a 1980 Honda Prelude. The parties have stipulated that the nature of the estate’s interest in the vehicle is at issue. The plaintiff has argued that, since the car was repossessed prior to the date the debtor filed her Chapter 13 petition, the estate’s interest is...
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MEMORANDUM OPINION This case is before the court on a complaint by the Chapter 11 debtor seeking injunctive relief to prevent the defendants from proceeding to sell or otherwise dispose of certain real property that was subject to a pre-bankruptcy purchase and sale agreement. Venture Properties, Inc. (hereinafter “Venture”) filed its Chapter 11 petition on June 21,1983. Venture is a ...
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ORDER This matter is before the Court on remand from the United States District Court for the District of Minnesota. I The relevant facts are undisputed. The Debtors are the principal officers and shareholders of Oak Farms, Inc. and Oak Farms Service Co., both Minnesota corporations engaged in agricultural business pursuits. In 1978 Oak Farms, Inc. executed a mortgage on certain parcels of ...
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MEMORANDUM OPINION This matter comes before the Court upon the debtor’s filing of a Complaint to Recover Preferential Payments in the amount of $2,850.00. Debtor filed the complaint on November 17, 1982, as a debtor-in-possession while proceeding under Chapter 11 of the Bankruptcy Reform Act of 1978 (“the Bankruptcy Code”). Upon conversion of the case to a case under Chapter 7 of the Bank...
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MEMORANDUM AND ORDER Seventy-seven days before filing in Chapter 11 these farmer-debtors gave a crop lien *185 to secure prior loans, and shortly after filing they commenced a lawsuit against the same creditor to recover the money equivalent of the security interest voluntarily given, $69,000, intending to use the money for operating capital in Chapter 11. Now, almost five months into the C...
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*187 OPINION In the case at bench two creditors have filed motions seeking, in the alternative, either dismissal of the debtor’s chapter 7 petition, or a change of venue. For the reasons stated herein we will deny dismissal but will grant the motion for a change of venue. The facts of this case are as follows: 1 The debtor filed a petition for relief under chapter 7 of the Bankruptcy Code...
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OPINION The issue presented herein is whether a creditor can “amend” a proof of claim for a pre-petition debt which has been fully satisfied (as originally filed) by the debtors under the terms of their confirmed chapter 13 plan to include post-petition expenses incurred by said creditor in rectifying a variety of problems caused by the erroneous distribution of funds by the chapter 13 trustee. Be...
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ORDER On February 22, 1984, a hearing was held on the question of approval by the Court of the proposed disclosure statement filed by the debtor in the above-referenced Chapter 11 bankruptcy proceeding. An objection to the disclosure statement was filed by General Electric Real Estate Equities, Inc. (“GEREE”) on February 21, 1984. GEREE contends that the proposed disclosure statement omits thre...
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ORDER RE: APPLICABILITY OF CODEBTOR STAY The Motion For Relief From Stay filed herein on January 6, 1984, by American Savings and Loan Association (hereafter “Creditor”) was brought on for preliminary hearing by telephone conference before the undersigned Judge on January 23,1984. At said conference, creditor was represented by Allan S. Chock, Esq., and debtors Jeffrey Nobuo Ikeda and Dor...
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*196 MEMORANDUM OPINION Plaintiff seeks a determination that certain indebtedness owed it by Defendant is non-dischargeable under 11 U.S.C. § 523(a)(2)(B). Plaintiff, whose statutory duty it is to disburse and administer payments under the Missouri Aid to Families with Dependent Children (AFDC) program alleges that Defendant applied for and received such payments for March, April...
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MEMORANDUM OPINION The issue here arises upon motion of a petitioning creditor for Summary Entry of an Order for Relief. On December 28,1983, W.H. Smith Publishers, Inc. (“W.H. Smith”) filed an involuntary petition under Chapter 7 of the Bankruptcy Reform Act of 1978 (“the Code”) against Joseph F. McEvoy, the alleged debtor. Upon application of W.H. Smith, the Court allowed service o...
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OPINION The appellant Isaac Silverman (“the bankrupt”) has appealed from an order of the Honorable Howard Schwartzberg entered April 24, 1981, 10 B.R. 734, denying him standing to object to a claim filed by Leucadia, Inc. (“Leucadia”) and overruling his objections to the claim on the merits. Because I agree with Judge Schwartzberg’s opinion on standing and on the merits of the bankrupt’s claim,...
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MEMORANDUM OPINION AND ORDER This case is before the Court on Plaintiffs’ Motion for Partial Summary Judgment, Brief and Appendices in Support, filed June 23, 1983; Trustee’s Response, Trustee’s Motion for Summary Judgment, Brief, and Evidence, filed August 2, 1983; Pat Holloway’s Response, Motion for Partial Summary Judgment, and Brief, filed August 2, 1983; Plaintiffs’ Reply and Respons...
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MEMORANDUM OPINION THIS IS a Chapter 7 case commenced by the Petition for Relief filed by Cecil Elgin Thompson, the Debtor involved in the above-captioned adversary proceeding. The matter under consideration is the liability of the Debtor, vel non, for payroll taxes which allegedly were not paid by two corporations of which he served as a corporate officer and, therefore, according to the Unite...
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MEMORANDUM Debtor/appellant George Eddis seeks relief from an Order of the Bankruptcy Court lifting an automatic stay of creditors’ collection proceedings. For reasons discussed below, the relief will be granted. In September, 1982 Eddis filed a voluntary petition under Chapter 13 of the Bankruptcy Code. Pursuant to 11 U.S.C. § 362(a) the filing operated as an automatic stay of all c...
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MEMORANDUM OPINION AND ORDER This appeal from the Territorial Court of the Virgin Islands raises the principle issue of whether Defendant Ramirez is entitled to assert the defense of discharge in bankruptcy when the attorney for Plaintiff Maldonado, but not Maldonado herself, had, prior to the filing of this action knowledge of Defendant’s then pending bankruptcy petition. In that we hold Plain...
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I. INTRODUCTORY The debtor, Victory Construction, appeals from an order terminating the automatic stay of 11 U.S.C. § 362 against foreclosure of its sole asset, a parcel of improved real estate. The trial court ruled that the debt- or’s lack of good faith in filing its Chapter 11 case was cause for relief from the stay imposed by 11 U.S.C. § 362. The basic issue presented by the parties is whether...
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OPINION Before GEORGE, ABRAHAMS, and HUGHES, Bankruptcy Judges. ARNOLD L. KUPETZ, the Trustee in the above-entitled case, has appealed an order of the bankruptcy court extending the time for a number of unsecured creditors to file their respective proofs of claim. Although we conclude that the order of the lower court was improvidently granted, we vacate that order without prejudice to the claims...
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*233OPINION This is an appeal by the alleged debtor in an involuntary bankruptcy ease from an order for relief entered as a result of the court having struck the debtor’s answer as a sanction for abuse of the discovery process. We AFFIRM. I. INTRODUCTORY The debtor, Tom Rubin & Associates, is a media consulting and purchasing firm operated by Tom Rubin as a sole proprietor. The debtor served adve...
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OPINION I. FACTS A. Background of Kings Inn This appeal and the underlying bankruptcy cases have evolved out of an attempt by various individuals and entities to construct and operate a casino, hotel and restaurant, known as the King’s Inn in Reno, Nevada. Kings Inn, Ltd., a limited partnership consisting of Matthew E. Chotas, Joseph Fischer and Otis K. Scoggin, as limited partn...
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MEMORANDUM AND ORDER INTRODUCTION This is an action to recover ramp scales rented by the debtor from the plaintiff in August of 1980, and now in the possession of the trustee in bankruptcy. Initially, the scales were delivered and installed by the plaintiff’s employees at the debtor’s place of business in Sumter, South Carolina. Later, on May 26, 1981, the scales were transferred by the employees ...
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MEMORANDUM OPINION Plaintiff brings this adversary proceeding to determine the dischargeability of his wrongful death claim against the Defendant-Debtor, pursuant to 11 U.S.C. § 523(a)(6), alleging willful and malicious injury to his daughter, causing her death. The matter came on to be heard on cross motions for summary judgment, upon the issue of dischargeability alone. The facts a...
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ORDER FACTS By this court’s order of November 11, 1982, issued upon the Proposed Joint Pretrial Order submitted by plaintiff, Walter E. Heller & Company, Southeast, Inc. (Heller), and by defendant, Taylor-Ramsey Corporation (Taylor-Ramsey), the facts that follow are stipulated. Heller has a perfected first security interest in the debtor’s inventory. The security agreement betwe...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT DENYING PLAINTIFF’S OBJECTION TO DISCHARGE ON CONDITION THAT DEFENDANTS TURN OVER CERTAIN PROPERTY AND INFORMATION TO THE COURT Plaintiffs complain for the defendants’ denial of discharge in bankruptcy on the grounds of failure to schedule (1) 800 shares of the stock of C.P. Associates, Inc., 122 Lafayette Avenue, Laurel, Maryland, and (2)...
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ORDER This matter comes before the court on the motion of Federal Deposit Insurance Corporation (FDIC) to dismiss the debtor’s Chapter 11 case. FINDINGS OF FACT On February 22,1983, the debtor filed his petition for relief under Chapter 11 of the Bankruptcy Code1 (11 U.S.C. § 1101, et seq.). On June 7, 1982, FDIC moved to dismiss the debtor’s case pursuant to § 1112(b)(1)-(4) on the ground that a...
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MEMORANDUM The Complaint of the Plaintiff, Lewis E. Benn, Jr., d/b/a Depot Realty (“Depot”) seeks to recover $5600 from the debtor, Halyard Realty Trust, (“Halyard”) as a broker’s commission for the sale of Halyard’s real estate and further seeks to impress a lien on the parcels sold. Based upon the testimony taken and exhibits introduced, the Court finds the following facts in accor...
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MEMORANDUM1 The issue presented is when is a debt “incurred” for the purpose of determining the availability of 11 U.S.C.A. § 547(c)(2) (West 1979)2 as a defense in a preference action. For the reasons stated herein, the court holds that a debt is incurred for § 547(c)(2) purposes when the debtor becomes liable for the goods, services, or other performance rendered, and not on such subsequent dat...
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MEMORANDUM ON NON-DISCHARGEABILITY The debtor, Stuart R. Denenberg (“Denenberg”) filed a voluntary Chapter 7 Petition on March 16, 1981. The debtor listed the Plaintiff, Merchants National Bank (“Merchants”), as a creditor on his Schedule of Liabilities in the amount of $25,000. In this adversary proceeding, the Plaintiff seeks a determination that the debt of $34,089.88 owed it by t...
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MEMORANDUM AND ORDER The Motion for Review and Motion of Imposition of Restraining Orders is before the court on the Motion of Tom Berry Burch and I.B. Merriman, who allege they represent certain unsecured creditors of The Burch Company, Inc. FINDINGS OF FACT The debtor, The Burch Company, Inc., filed its petition for relief under Chapter 7 of the Bankruptcy Code on February 4, 1982. An ord...
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DECISION Russel J. Lesperance (“plaintiff”) commenced an action against debtor Norman C. Kirst (“defendant”) for denial of the defendant’s discharge pursuant to § 727 of the Bankruptcy Code and, alternatively, for a declaration that a portion of defendant’s debt to plaintiff be excepted from discharge pursuant to § 523(a)(2)(A) of the Bankruptcy Code. 1 A trial was held on Se...
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MEMORANDUM OPINION Debtors, Dona Jeanne Padgett and Charles Hasten Padgett, filed complaints with this Court requesting that the named defendants in criminal proceedings commenced respectively against the debtors in Hickman Circuit Court, Kentucky, be enjoined from further prosecution of debtors pursuant to KRS 514.040, Kentucky’s “bad check” statute. Debtors allege that defendants’ activ...
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MEMORANDUM OPINION The complaint initiating this action is a request for relief from the automatic stay pursuant to 11 U.S.C. § 362. After the filing of this action, the assets in question were sold by agreement of the parties, upon order of the court. This case is now before the court on the motion of the plaintiff for determination of priorities and distribution of funds. In order ...
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MEMORANDUM OPINION This matter is before the court for the limited purpose of determining whether the plaintiff made a timely demand for reclamation of goods pursuant to section 546(c) of the Bankruptcy Code, 11 U.S.C. § 546(c), and section 2-702 of the Uniform Commercial Code, as it appears in KRS 355.2-702. FINDINGS OF FACT: The facts, which are not in controversy and which are sti...
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MEMORANDUM OPINION A complaint to determine dischargeability pursuant to 11 U.S.C. § 523(a)(5) was filed on February 4, 1983, by plaintiff alleging that certain payment obligations assumed by debtor in accordance with a separation and property settlement agreement and final decree of dissolution are in the nature of maintenance or support and nondisehargeable in bankruptcy. Debtor generally den...
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MEMORANDUM This matter is before the court on motion of the successor trustee Thomas E. Ray to convert these Chapter 11 cases to Chapter 7 of the Bankruptcy Code. Upon testimony of witnesses, exhibits, statement of counsel and the entire record, this court concludes that the trustee’s motion should be sustained. The following shall represent findings of fact and conclusions of law pursuant to...
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MEMORANDUM This adversary proceeding was initiated by the trustee 1 to recover a series of alleged preferential transfers from the defendants Gulf Oil Products (hereinafter “Gulf”) and Boyd Distributing Company, Inc. (hereinafter “Boyd”) pursuant to 11 U.S.C. § 547. 2 Boyd filed a third party complaint against Gulf alleging that Gulf was liable to the trustee for ret...
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ORDER ON MOTION TO ASSUME EXECUTORY CONTRACT THIS IS a Chapter 11 case and the matter under consideration is a Motion filed by the Trustee who seeks to assume an execu-tory contract. Southern Biotech, Inc. f/k/a Southern Medical and Pharmeceutical Corporation (Southern Biotech) who initially filed its Petition for Relief under Chapter 11 operated its business initially as a debt- or-in-po...
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ORDER ON TRUSTEE’S APPLICATION TO ASSUME CONTRACT AND LEASE and ORDER ON APPLICATION TO ACQUIRE CONTROLLING INTEREST IN BIO PHARM UNIVERSITY CENTER THIS IS a business reorganization case in which this Court, upon motion filed by the Creditors’ Committee, removed the management and, pursuant to § 1104 of the Bankruptcy Code, appointed Angel Santolla as Trustee for the estate of Southern Bi...
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*326 MEMORANDUM ON PREFERENTIAL TRANSFERS The Complaint of the Plaintiff debtor, Keydata Corporation (“Keydata” or “the debtor”) seeks to recover four payments to Boston Edison Company (“Edison”) total-ling $12,188.52 alleging that they were preferential transfers. 11 U.S.C. Section 547 permits the Trustee 1 to avoid and reclaim for the estate any transfer by the debto...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation ease and the immediate matter under consideration is the right of the Debtor, Evelyn Martin Hazen, to obtain a general discharge pursuant to 11 U.S.C. § 727. The Debtor’s right to discharge is challenged by Thomas Peterson and Lucille Peterson, his wife, who are the sole scheduled creditors of the ...
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*333ORDER DENYING DEFENDANT’S MOTION TO DISMISS AND SETTING TRIAL OF MERITS The plaintiff, in his within complaint, seeks recovery of an alleged preferential transfer under the provisions of section 547 of the Bankruptcy Code. The defendant, in its answer, in addition to answering on the merits, moves, in effect, to dismiss the complaint, alleging that “this court does not have jurisdiction over ...
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MEMORANDUM OPINION In the interest of judicial economy, the court has consolidated these three bankruptcy appeals. All three raise essentially identical legal issues arising out of the bankruptcy of Isis Foods, Inc. In addition, the bankruptcy court relied on its first decision in Dubuque Packing Co. as a basis for the two subsequent decisions. The debtor, Isis Foods, Inc....
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MEMORANDUM Pursuant to 11 U.S.C. Section 502(c)(1) the debtor requests that the Court estimate the disputed, contingent claim of Mary Lou Cordova, who has filed a proof of claim in the amount of one million one hundred thousand dollars ($1,100,000). Prior to the filing, Mrs. Cordova brought a civil action in the United States District Court, District of Massachusetts seeking one million one h...
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ORDER ON APPLICATIONS FOR AUTHORITY OF DEBTOR TO ENTER INTO A LEASE OF A PORTION OF DEBTOR’S PREMISES THIS IS a Chapter 11 reorganization case filed by St. Petersburg Hotel Association Ltd. (Association), the Debtor who seeks the approval of this Court to enter into two separate lease agreements whereby the Debtor proposes to lease portions of the hotel known as the St. Petersburg Bayfront Conc...
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MEMORANDUM AND ORDER On August 22, 1983, the debtors filed a voluntary petition under chapter 7 of the Bankruptcy Code (Code). On October 11, 1983, the debtors filed a motion to determine the secured status of claimant, National Bank of Lebanon, New Hampshire (Bank). A hearing, after notice, was held on October 28,1983. At that time the Bank was given permission to take the deposition of ...
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37 B.R. 348 (1984) In the Matter of B.O.S.S. PARTNERS I, Debtor. B.O.S.S. PARTNERS I, Plaintiff, v. Justin L. TUCKER and Linda E. Tucker, Defendants. Bankruptcy No. 82-2373, Adv. No. 83-974. United States Bankruptcy Court, M.D. Florida, Tampa Division. January 5, 1984. *349 Harley E. Riedel, Tampa, Fla., for plaintiff. Nancy G. Farage, Tampa, Fla., for defendants. ORDER ON MOTION FOR TEMPORARY R...
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ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER THIS IS a Chapter 11 case and the matter under consideration is a request for injunctive relief sought by B.O.S.S. Partners I, a limited partnership currently involved in the above-captioned reorganization case. In order to put the matter in the proper focus, a brief recap of the history of this litigation is in order. On November 10, 1982, B.O.S.S....
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ORDER On October 27, 1983, the First National Bank of Oakes (“BANK”) moved the Court for an order pursuant to section 365(d)(2) of the Code compelling the Debtors to assume or reject a self-styled “lease” pertaining to the following property:' One 12' X 16' Mini Swine 120 Head Nursery w/self contained pit w/spilde “Save” Unit w/auto medicator The Debtors resist the Motion asserting th...
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OPINION Presently before this Court is an application for a determination of control submitted by the attorney for the Chapter 11 debtor, Delk Road Associates, Ltd., a Georgia limited partnership. The issue requires a determination by this Court of stock ownership and, consequently, the voting rights of the general partner International Financial Development Corporation (“IFDC”) which holds a majo...
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MEMORANDUM DECISION AND ORDER Complaint filed by the Plaintiff in the above-entitled adversary proceeding seeks to have a claim, resulting from legal services given to the Debtor’s former wife, determined non-dischargeable under 11 U.S.C. § 523(a)(5). Trial in this matter was held before the Honorable Harold O. Bullís on December 21, 1982, in Bismarck, North Dakota. The parties have ...
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MEMORANDUM OF OPINION AND ORDER The Trustee for Fulton Air Service, Inc., filed the above-styled adversary complaint seeking a declaratory judgment regarding which of the Defendants have valid liens against the proceeds from the sale of the Debtor’s lease of space at Fulton County Charlie Brown Airport. The matter is presently before the Court on the Trustee’s and the State of Georgia’s cross-moti...
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MEMORANDUM AND ORDER FACTS On January 4,1983, the debtor (Johnston) filed for relief under chapter 13 of the Bankruptcy Code (Code). The petition was not filed in good faith but merely to avoid foreclosure proceedings. On May 20,1983, Richard V. Perrott (Per-rott) obtained relief from the stay of Code section 362(a) in order, as mortgagee of Johnston as mortgagor, to foreclose o...
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37 B.R. 365 (1984) In the Matter of Gerald Patrick McGUIRE, Debtor. Gerald Patrick McGUIRE, Plaintiff, v. MANUFACTURERS AND TRADERS TRUST CO., Defendant. Bankruptcy No. 81-594, Adv. No. 83-700. United States Bankruptcy Court, M.D. Florida, Tampa Division. January 20, 1984. Jan K. Moncol, Clearwater, Fla., for plaintiff. Lawrence M. Hankin, Sarasota, Fla., for defendant. FINDINGS OF FACT, CONCLUS...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 11 case and the immediate matter under consideration is a Complaint filed by the Debtor, Gerald P. McGuire, who seeks pursuant to § 522(f)(1) to invalidate two judicial liens held by Manufacturers and Traders Trust Co. (Manufacturers). The liens total a sum of $12,749.62 plus interest accrued from the date of the entry ...
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OPINION Two (2) related Chapter 11 cases come before the Court on two (2) motions to dismiss or convert the cases to Chapter 7 pursuant to 11 U.S.C. § 1112(b). Movants allege lack of good faith in filing Chapter 11 petitions, inability to effectuate a plan, and no reasonable likelihood of rehabilitation as factors warranting dismissal or conversion. Because identical issues are presented ...
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SUPPLEMENTAL ORDER This Court entered its Memorandum and Order on November 15, 1983, finding the Plaintiff/Debtor individually liable for withheld but unpaid payroll taxes. 35 B.R. 811. The United States Department of the Treasury, as prevailing party, was directed to prepare a proposed judgment. The judgment as submitted made provision for interest on the unpaid taxes to which the Plaintiff/De...
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AMENDED MEMORANDUM OF OPINION AND ORDER The above-styled adversary complaint is before the Court on Defendant’s Motion for Partial Summary Judgment. Barton & Ludwig, a General Partnership, a/k/a Highway 41 Associates (hereinafter “Debt- or-Partnership”) filed for relief under Chapter 11 by L.T. Ludwig, a general partner. Subsequent thereto, the Chapter 11 case was converted to a Chapter 7...
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ORDER ON COMPLAINT FOR INJUNCTIVE RELIEF THIS IS the next, and hopefully the last, round in the above-captioned adversary proceeding instituted by St. Petersburg Hotel Associates, Ltd. (Associates) by a Complaint which sought injunctive relief against Royal Trust Bank of St. Petersburg (Royal Trust), the Defendant named in the proceeding. Shortly after the commencement of the proceeding, A...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case comes before the Court on the Complaint For Injunctive Relief and Petition For Certification Of Contempt filed by Richard L. Redenbaugh (hereinafter referred to as “Redenbaugh”), against the State’s Attorney of Macoupin County, Illinois, Edmond H. Rees (hereinafter referred to as “State’s Attorney”) and John L. Gahle (hereinafter referred to as ...
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MEMORANDUM AND ORDERS RE: (1) MOTION TO REMAND; (2) MOTIONS TO DISSOLVE MEMORANDUM OF LIS PENDENS; (3) MOTION TO DISMISS AVERSARY PROCEEDING NO. 83-538 INSOFAR AS IT SEEKS TO ENJOIN ADVERSARY PROCEEDING NO. 83-598; (4) MOTION TO CONSOLIDATE ADVERSARY PROCEEDING NOS. 83-538 AND 83-598; AND (5) ORDER OF NOTICE. Before the Court are various motions relating to an action entitled Rosalind E. Gorin, as...
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ORDER ON MOTION FOR RELIEF This matter is before the Court upon the Motion of MIRIAM SARNOFF and FLAGSHIP NATIONAL BANK OF MIAMI, as Co-Trustees under the WILL OF ALEX MANSION, DECEASED (“Sarnoff/Flagship”), pursuant to Bankruptcy Rule 4001 et seq., seeking relief from the automatic stay imposed by Section 362 of the Bankruptcy Code, to permit Movants to foreclose their liens against certain real...
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ORDER The Debtor in the above-entitled adversary proceeding filed his petition for reorganization under Chapter 11 of the Bankruptcy Code on April 6, 1983. On April 15, 1983, the Debtor commenced by complaint this adversary proceeding seeking relief from the automatic stay. The Debtor requested modification of the automatic stay to permit an action for divorce to continue in the District Court ...
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DECISION An adversary proceeding was commenced by Regency National Bank (“the Bank”) against the debtor, William R. Blatz, (“Blatz”) seeking to declare a debt nondis-chargeable in the amount of $51,600.00 together with accumulated interest. This obligation was evidenced by a promissory note dated June 30, 1982. The claim of nondis-chargeability is premised upon an alleged false financial ...
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ORDER On December 6, 1983, plaintiff filed a complaint objecting to the defendant-debt- or’s Chapter 7 discharge based on §§ 727 and 523(a)(6) of the Bankruptcy Reform Act. The debtor had filed a Chapter 7 petition on August 8, 1983, and a § 341 hearing had been held on September 19, 1983. The deadline for filing a complaint objecting to discharge was listed as November 18, 1983. The deadline for ...
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ORDER The Trustee, on August 25, 1983, filed a Motion seeking dismissal of the Debtors’ Confirmed Chapter 13 Plan for the reason that the Debtors have failed to maintain the monthly payments as required by the Plan. This Motion was joined in by Community National Bank and South Forks Shopping Center, Inc., two of the Debtors’ creditors. A hearing was held on September 21, 1983, at which time ...
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MEMORANDUM OPINION This matter came before the Court upon the filing of a motion to enlarge the period for filing complaints to determine the dis-chargeability of a debt and objections to discharge by Bradco Supply Corporation (Bradco), a creditor. After notice and a hearing at which the debtor objected to the relief sought by the motion, and after sub *411 mission of briefs ...
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MEMORANDUM OPINION This adversary proceeding comes before the Court on the Complaint of four creditors — Rock River Production Credit Association, represented by Attorney Charles Beckman, Griffith Lumber and Grain Company, represented by Attorney Bradley Koch, International Multifoods, represented by Attorney Mary P. Gorman, and Heckert Farm Supply, represented by Attorney Leslie Lamping ...
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OPINION The issue at bench is whether we should grant the husband/debtor’s former spouse an exception to discharge under 11 U.S.C. § 523(a)(1) and (a)(5). For the reasons stated herein we will deny the requested relief. The parties have expressly waived an evi-dentiary hearing on this matter, so the following evidence has been drawn from the parties’ stipulation and uncontested statement of f...
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MEMORANDUM An involuntary chapter 7 petition, 11 U.S. C.A. § 303 (1979), was filed against the debtor on July 14,1983. An order for relief was entered on August 22, 1983. Asserting *427 various constitutional privileges, the debtor has refused to disclose his assets and liabilities. 1 I The trustee’s complaint seeking redirection of the debtor’s mail, pursuant to 11 U.S.C.A. § 521 and §...
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MEMORANDUM The question before the court is whether the mail of defendant Patricia Shelby, the debtor’s former personal secretary, should be redirected. The trustee contends Shelby is the agent and alter ego of the debtor and that she has served as a conduit of funds on the debtor’s behalf since the filing of the involuntary petition. Denying she is the debtor’s alter ego, Shelby asserts that red...
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MEMORANDUM OPINION The debtors have filed herein a plan which provides that the debtors will pay to the trustee the sum of $125 per month for a period of 36 months. From this sum the trustee is to pay the expenses of administration, the sum of $33 upon an allowed secured claim of $1,000, the priority tax debts of $1,800 and the balance to unsecured creditors which is calculated to return a divi...
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ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiffs, the Official Creditors’ Committee of Chief- Freight Lines Company and debtor Chief Freight Lines Company, bring this motion for partial summary judgment as to the first two counts of their complaint pursuant to Bankruptcy Rule 7056 and Rule 56 Fed.R.Civ.Proc. The first count of plaintiffs’ complaint seeks to avoid security int...
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This is a motion made by Tina Russo, wife of the bankrupt Lucio F. Russo, (“Russo” or the “bankrupt”) to vacate the confirmation of the sale of the trustee’s survivor-ship interest in marital property, to Avery J. Gross, (“Gross”) or to the estate of Reuben E. Gross, (“Gross estate”) on the ground that Gross was the former trustee in bankruptcy of Russo’s bankruptcy estate and therefore a fiduc...
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OPINION Presently before the court are two cross motions for summary judgment. One has been filed by the defendant and the other has been filed by the plaintiff. There are no genuine issues of material fact and the court is of the opinion that one of the movants is clearly entitled to judgment as a matter of law. Factual Background On December 10, 1982, Gayle Oil Company, In...
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MEMORANDUM OPINION These matters came before the Court upon the filing of a motion by the debtor to extend the exclusive periods for filing a plan of reorganization and a motion by the creditors’ committee to convert this proceeding to one under Chapter 7 of the Bankruptcy Code. After notice to all creditors and other parties in interest, hearings were held on the respective motions. After carefu...
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ORDER AVOIDING PREFERENTIAL TRANSFER Finding that the funds paid by the debtor to Warner-Fruehauf Trailer Co., Inc. [“Warner-Fruehauf”], were funds of the debtor and were not subject to a constructive trust, the transfer will be avoided. Findings of Fact 1. A truck owned by the debtor was involved in a traffic accident on February 12, 1980, with a tractor-trailer belonging to I.J. and E.W...
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OPINION The issue in the ease at bench is whether goods consigned by Quaker City Iron Works, Inc. (“Quaker”), to the debtor are subject to the claims of the debtor’s unsecured creditors, thus necessitating a denial of Quaker’s complaint for reclamation of those goods from the debtor. For the reasons expressed herein we find that the goods are subject to such claims and consequently we wil...
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MEMORANDUM DECISION Plaintiff seeks exception from discharge under 11 U.S.C. § 523(a)(2)(A) for its claim of $7,992 against the debtor. The debtor, who has no attorney, appeared at trial and denied the essential allegations. Because •the debtor was not properly served, no default has been sought or granted on account of the debtor’s failure to plead. The matter was tried on February 16, as sche...
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MEMORANDUM OPINION The J.I. Case Credit Corporation (Mov-ant) seeks relief from the automatic stays under 11 U.S.C. § 362(a) in order to enforce its security interests in three tractors, two (2) model 4890 Case tractors and one (1) model 2670 Case tractor. These tractors belong to the Debtors, both of whom initially filed Chapter 11 petitions but later converted to Chapter 7 proceedings. From...
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OPINION The issue presented herein is how much the plaintiff is entitled to receive out of the $625,000.00 proceeds presently being held by the trustee as a result of the latter’s sale of a certain parcel of realty formerly owned by the bankrupt. While we conclude that the plaintiff is entitled to recover some of the proceeds held by the trustee pursuant to a state court judgment the plai...
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MEMORANDUM OPINION AND ORDER In this case debtor has moved to disqualify and remove the trustee by reason of the language of Rule 5002, Rules of Bankruptcy Procedure. That Rule provides that: “No person may be appointed as a trustee or examiner or be employed as an attorney, accountant, appraiser, auctioneer, or other professional person pursuant to § 327 or § 1103 of the Code if (1) the person i...
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MEMORANDUM AND ORDER This involuntary Chapter 11 case was commenced by Crosley Building Corporation of Maine (“Crosley”) ,by the filing of a petition under 11 U.S.C. § 303. Godroy Wholesale Company, Inc. (“Godroy”) was, at' that time, a manufacturer and distributor of general merchandise, operating sixteen variety stores in Massachusetts and New Hampshire under the trade name Go-din Store...
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OPINION AND ORDER ON LIEN AVOIDANCE UNDER 11 U.S.C. § 522(f) The matter before the Court is the question of the availability of the lien avoidance provisions of 11 U.S.C. § 522(f) to Ohio debtors. This Court must follow the binding precedent supplied by the United States Sixth Circuit Court of Appeals in the case of Pine/Giles v. Credithrift of America, 717 F.2d 281, 10 B.C.D. ...
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ORDER DENYING CONTEMPT CITATION The issue here is whether the IRS is bound by the provisions for a tax claim contained in an individual’s confirmed chapter 11 plan. The point does not appear to have been raised in any reported decision. An individual debtor seeks a contempt citation against IRS agents because they are attempting to collect a tax debt. The debt was fixed in amount and payment ...
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MEMORANDUM OPINION The Plaintiff seeks to avoid a transfer of real estate between Defendants, Oather Brown and Syble Brown, his wife (Browns), as grantors, and Defendants, Jack Davis and Shirley Davis, his wife (Davises), as grantees. After Defendants filed their answers in this proceeding, Plaintiff moved for judgment on the pleadings, contending that the facts admitted by Defendants in thei...
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MEMORANDUM The issue is whether the debtor’s Individual Retirement Account (“IRA”) is an ex-emptable annuity under T.C.A. § 26-2-111. After consideration of the briefs and arguments of the parties and applicable authority, the court finds that this IRA is not an exemptable annuity under Tennessee law and the trustee’s objection to the claimed exemption should be SUSTAINED. The following const...
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MEMORANDUM NONDISCHARGEABLE AWARD OF ATTORNEY’S FEES AND EXPENSES On October 6, 1982, the debtor, Lewis E. Snyder filed a voluntary petition in bankruptcy under the provisions of Chapter 7 of the Bankruptcy Code. The plaintiff, Betty J. Snyder, on January 4, 1983, filed a complaint for the determination of the dis-chargeability of a debt owing to her from the debtor. The debtor filed...
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MEMORANDUM ON ATTORNEY’S FEES This case involves default by a Debtor in his Chapter 13 plan followed by a Motion to Dismiss filed by the Trustee assigned to the case. The motion was filed on November 2, 1983. On the same date the Trustee filed an application to appoint himself as attorney to the Trustee for the purpose of processing such motion. The Court held a hearing on the Trustee’s Motio...
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MEMORANDUM AND ORDER The above-named Debtors filed for relief under Chapter 7 of the Bankruptcy Code on April 13, 1983. Within the Schedules filed with the Court on that date, the Debtor, Karen Janice Soby, selected property as exempt pursuant to the laws of the State of Minnesota, claiming under those statutes a homestead exemption having a value of $85,000.00 and other personal property having ...
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DECISION DENYING DEBTOR’S MOTION TO AMEND, AND ORDER DISMISSING CASE Heard on January 10, 1984, on the debt- or’s motion to amend her Chapter 13 plan, to reduce payments from $60 to $30 per week. The debtor’s plan was confirmed on November 21, 1983, after she amended her original plan to increase the dividend to creditors from 31% to 75%. The majority of Ms. Roundtree’s debts are educational loan...
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MEMORANDUM AND ORDER RE: MOTION FOR MODIFICATION OF STAY I. BACKGROUND Alan Hotchkiss (movant) seeks by motion to modify the automatic stay of 11 U.S.C. § 362(a) 1 to permit him to institute suit against Page-Wilson Corporation (debtor), the debtor in this chapter 11 case. The “cause” 2 which movant claims for relief as set forth in his moving papers i...
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MEMORANDUM DECISION AND ORDER This matter came on for hearing on application to obtain overriding royalty interests. After hearing testimony, the Court requested that the parties brief the issue. The parties complied and after a review of the testimony, evidence and briefs, the Court finds as follows. GEC Production Company, Inc. (hereinafter “GEC”) entered into an oral contract with Mahan & Rows...
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ORDER This case is before the Court on the complaint by the Lincoln Financial Corp. (“Lincoln Financial”) for a declaratory judgment validating a foreclosure sale with respect to certain real property owned by the debtors in Haralson County, Georgia. Lincoln Financial foreclosed upon the subject property nine (9) days before the debtors, Anthony Lowell Gray and Helen Dianne Gray, filed th...
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ORDER On June 7, 1983, Larry James White and Douglas R. Daum, attorneys at law, exercised the power of sale in a security deed granted by the above-named debtor to se*538cure an indebtedness for attorney’s fees. The debtor filed his Chapter 13 petition on November 4, 1983. The Chapter 13 plan treats White and Daum as creditors, and the plan proposes to cure and reinstate the indebtedness to White...
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OPINION In this adversary proceeding, the plaintiff, Greyhound Lines, Inc., has filed a Complaint requesting that the debt owed to it by the Chapter 7 defendant-debtor be determined to be nondischargeable pursuant to Sections 523(a)(2)(A) and 523(a)(4) of the Bankruptcy Code, 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(4). For the reasons hereinafter given, we shall deny the relief requested in the pl...
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*544ORDER RE: MOTION TO AMEND “ORDER RE ‘MOTION FOR ORDER GRANTING RELIEF FROM AUTOMATIC STAY,’” FILED ON JANUARY 27, 1984 On August 17,1983, Commercial Finance, Limited, (hereafter “Commercial Finance”) filed herein a Motion for Order Granting Relief from Automatic Stay (hereafter “Motion for Relief”), thérein seeking relief pursuant to 11 U.S.C. § 362(d) from the automatic stay under 11 U.S.C. §...
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MEMORANDUM OPINION The matter at issue involves a motion by the debtors-in-possession to permit the use of certain proceeds which were received from the United States Department of Agriculture under the recently enacted “Payment-in-Kind” (PIK) program. Aetna Finance Company objects to the use of those proceeds, claiming a security interest therein. On December 14, 1981 the debtors-in-possessi...
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ORDER This matter came before the Court on the applications of Debtor’s counsel for allowance of attorney fees. Debtor’s counsel has previously received $10,000.00 in fees from third parties, i.e., former officers of the Debtor. Counsel now seeks additional fees in the amount of $3,181.08. The U.S. Trustee filed written objection to the application on the basis that the bankruptcy estate should...
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OPINION The issue in the case at bench is whether the trustee has failed to state a cause of action to avoid a preference under 11 U.S.C. § 547(b) due to the debtor’s satisfaction of a debt owed to a creditor who is not an insider when payment was made more than 90 days prior to the commencement of bankruptcy but within the one year vulnerability period for insiders. The dispute must be r...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case involves a dischargeability question arising out of an alleged willful and malicious injury inflicted during a fist-fight between two individuals. 11 U.S.C.A. § 523(a)(6) (1979). Trial was held January 24, 1984. I The plaintiff, John S. Stansberry (Stans-berry), and the defendant, George Marvin Hines (Hines), had been involved in a previous ...
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MEMORANDUM OPINION On February 13, 1984, the court heard the Trustee’s motion for an order approving the Trustee’s rejection of certain collective bargaining agreements which he alleged con *557 stitute executory contracts under Section 365 of the Bankruptcy Code. Filing briefs only were Michael T. McCoy of Warnock & Hurd, co-counsel for the International Brotherhood of ...
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DECISION DENYING PRIORITY STATUS TO CLAIM 11 OF THE CITY OF PAWTUCKET WATER SUPPLY BOARD Heard on December 15,1983 on the debt- or’s objection to the claim of the City of Pawtucket Water Supply Board, which seeks priority status for the payment of water bills, pursuant to 11 U.S.C. § 507(a)(6)(B),1 on the theory that water charges are a form of property tax. For the reasons stated below, we conclu...
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MEMORANDUM AND ORDER The case at hand forces a reappraisal of a local rule of court which imposes a time limitation for the filing of lien avoidance motions. Our rule does not stand the test of case law analysis and will no longer be strictly enforced. We fall short of eliminating the rule entirely only for the reasons which are expressed in the conclusion of this opinion. The rule w...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Motions for Relief From Stay filed by Stephen P. McMahon, Thomas McNeill, and Maria and Ramiro Echeverri. Each of these creditors and the Debtor-In-Possession have agreed that the issues addressed in these Motions are primarily issues of law which can be decided solely upon the submission of written arguments. Inasmuch as ...
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ORDER This cause comes before this Court for Trial on the Complaint to Determine Dis-chargeability filed by the Plaintiff-Creditor. The Court has reviewed the testimony offered at that Trial as well as the arguments presented by counsel on behalf of their respective clients. Based upon that review and for the following reasons the Court finds that the debt in question is discharge-able. FACTS...
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MEMORANDUM OPINION Mary-Michaele Morrissey, debtor herein, filed a petition for relief under Chapter 13 of the Bankruptcy Reform Act of 1978 (“the Code”) on May 20, 1983. Upon the motion of the Trustee in Bankruptcy, this Court converted the debtor’s case to a liquidation proceeding under Chapter 7 of the Code on January 11, 1984. Before conversion of the instant case, a disputed issue ar...
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ORDER CONCERNING REQUEST FOR CONFIRMATION PURSUANT TO 11 U.S.C. § 1129(b) THIS CAUSE came on to be heard on February 22nd and 23rd, 1984, for an evi-dentiary hearing upon the Debtors’ request for confirmation of the Plans of Reorganization filed herein, notwithstanding the failure of the major secured creditor, The Farmers Home Administration of the United States of America, to accept the Plans...
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MEMORANDUM OPINION AND ORDER ISSUE: DOES RULE 5002 PROHIBIT THE APPOINTMENT OF A LAW FIRM AS COUNSEL TO THE INTERIM CHAPTER 7 TRUSTEE WHEN A MEMBER OF THAT FIRM SERVED AS A FORMER JUDICIAL COLLEAGUE WITH THE APPOINTING BANKRUPTCY JUDGE PRIOR TO THE FILING OF THE BANKRUPTCY PETITION? Introduction: Among the comprehensive set of Rules of Bankruptcy Procedure which became effective on August...
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MEMORANDUM DENYING RELIEF FROM THE AUTOMATIC STAY AND ORDERING THE TURNOVER OF A CASH BOND On September 13, 1982, the debtor filed a petition in bankruptcy seeking relief under Chapter 11 of the Bankruptcy Code. A creditor, Taneytown Tires, Inc. (Taney-town), filed a complaint to modify the automatic stay. The debtors filed an answer and we held a pre-trial conference at which time counsel agreed...
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MEMORANDUM OF DECISION ON MOTION TO AMEND FINDINGS The Chapter 7 debtors seek to amend the judgment entered December 16, 1983 and the findings of fact and conclusions of law contained in my memorandum of decision, particularly as to the secured status of Government Employees Insurance Co. (Geico) under 11 U.S.C. § 506. The issue is whether the court can avoid a lien on the Chapter 7 ...
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MEMORANDUM DECISION This matter is presently before the Court upon cross motions for summary judgment by the plaintiff, trustee of the chapter 7 bankruptcy estate of defendants Vincent and Cheryl Dias, and by the debtors. The key issue presented relates to a trust established by the grandparents of Cheryl Dias and its status following bankruptcy. The operative facts are simply stated. ...
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DECISION AND ORDER Presently before the Court is the Complaint in Reclamation of Plaintiff, The Ohio Farmers Grain and Supply Association, (the Seller), filed on December 13, 1983, pursuant to 11 U.S.C. § 546(c) and O.R.C. § 1302.76 (U.C.C. § 2-702). On January 9, 1984, BancOhio National Bank (the Bank) intervened, alleging that it has a security position superior to Plaintiff’s interest. The B...
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MEMORANDUM OPINION In this adversary proceeding, the plaintiffs, pursuant to Section 362(d) of the Bankruptcy Code, 11 U.S.C. § 362(d), seek relief from the automatic stay so that they may proceed with a state law action to obtain possession of a mobile home which the Chapter 13 debtors-defendants agreed to purchase from the plaintiffs under a long-term agreement of sale. For the reasons herein...
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MEMORANDUM & ORDER Charles G. Rodman, trustee of the W.T. Grant Co. estate (“Trustee”) objects to the allowance of the proof of claim filed by the Chase Manhattan Bank, N.A. (“Chase”), claim number 600015, asserting that the claim is untimely and thus barred under Bankruptcy Act of 1898 (“Act”) section 57(n) and former Bankruptcy Rule 302(e). Chase responds that it had filed an informal c...
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MEMORANDUM The plaintiff debtor’s complaint seeks a determination that the debtor’s obligation to pay his former wife’s attorney’s fees of $1500 is dischargeable in bankruptcy and is not in the nature of alimony or support so as to be nondischargeable under 11 U.S.C. Section 523(a)(5). 1 The creditor’s Answer asserts that the liability is in the nature of alimony. The parties submitted an Agr...
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OPINION The issue in the case at bench is whether we can direct the defendant to renew certain insurance policies' at their respective expirations, which policies the defendant had issued to the debtor and which policies are set to expire by their own terms in the immediate future. Because nothing in the Bankruptcy Code (“the Code”) enlarges the rights of a debtor under a contract nor prevents ...
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OPINION AND ORDER1 This cause came to be heard on appellant Chrysler Credit Corporation’s brief and assignment of error in their appeal from a memorandum and order of the United States Bankruptcy Court, 24 B.R. 350, Northern District of Ohio, Western Division, and appellee’s response thereto. The appellee in this action, James A. Harris, Trustee of the Estate of Charlie Bisang Chrysler-Plymouth, ...
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OPINION AND ORDER 1 This cause came to be heard on appellant’s brief and assignment of error in his appeal from a memorandum and order of the United States Bankruptcy Court, 24 B.R. 350, Northern District of Ohio, West-era Division, and appellees’ response thereto. The appellant in this action, James A. Harris, Trustee of the Estate of Charlie Bisang Chrysler-Plymouth, Inc., ...
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37 B.R. 608 (1983) FEDERAL TRADE COMMISSION, Plaintiff, v. R.A. WALKER & ASSOCIATES, INC., et al., Defendants. Civ. A. No. 83-2962. United States District Court, District of Columbia. October 27, 1983. *609 Charles D. Nelson, FTC, Washington, D.C., for plaintiff. John Hardin Young, Washington, D.C., J. Michael Slocum, Falls Church, Va., for defendants. MEMORANDUM OPINION JOHN GARRETT PENN, D...
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MEMORANDUM OPINION Defendants Rita A. Walker and R.A. Walker and Associates, Inc. move this Court to modify its Temporary Restraining Order (T.R.O.), issued October 5, 1983 and extended on October 14,1983, by vacating sections I.E. and II. of the T.R.O.1 Sections I.E. and II. of the T.R.O. impose a freeze on all of the defendants’ assets, with the exception of $800 per week per defendant for pers...
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MEMORANDUM Amatex Corporation seeks the appointment of a guardian ad litem in the bankruptcy court to represent the interests of all unknown persons who at some future date may bring asbestos suits against Amatex for injuries arising from asbestos exposures occurring prior to the bankruptcy proceedings. In addition, Amatex proposes a plan of reorganization establishing a fund f...
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The Court has before it defendant Rath Packing Company’s motion to stay further proceedings in this action pursuant to 11 U.S.C. §§ 105 and 362, and 28 U.S.C. § 1651. Plaintiff has resisted the motion. Accordingly, the Court concludes that the motion to stay is ready for ruling. After more than six years of litigation, on September 30, 1983, Special Master A.V. Hass submitted his Report an...
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MEMORANDUM OPINION AND ORDER The primary issue in this case is whether a currency exchange can be a debtor under *620 Chapter 11 of the Bankruptcy Reform Act of 1978 (“Bankruptcy Code”). On February 10, 1983, 57 currency exchange corporations filed voluntary petitions for reorganization under Chapter 11 of the Bankruptcy Code. Thirty-three of these currency exchanges were loc...
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*633 MEMORANDUM AND ORDER This Memorandum and Order sets forth this Court’s determination of the proper forums for resolving products liability claims that are pending against White Motor Corporation (“White”). This Court has jurisdiction pursuant to 28 U.S.C. §§ 1334 and 1471(a) and (b); rule (c)(2) of the interim rule governing the Bankruptcy Court adopted by the United St...
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OPINION I. Background This is plaintiffs’ second appeal from a bankruptcy court judgment barring as untimely their complaint to avoid a judicial lien under section 522(f) of the Bankruptcy Reform Act of 1978,11 U.S.C. § 101 et seq. 1 In the previous appeal this Court reversed the bankruptcy court’s holding that a lien avoidance proceeding brought under...
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OPINION AND ORDER Present before the Court is Consolidated Equities, Inc.’s application for leave to appeal the interlocutory order of United States Bankruptcy Judge, dated November 21,1983. Secured Creditor Trustees of Central States Southeast and Southwest Areas Pension Fund filed its opposition thereto. The order of the Bankruptcy Judge consists of a denial of a change of date for a hearing on ...
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OPINION This is an appeal from an order denying appellants’ motion to expunge two lis pen-dens. We affirm in part and reverse in part. I Mr. and Mrs. Erickson, two of the appellants, are principals of the two corporate appellants. The Ericksons and one corporation, Hotel San Maarten of Laguna Beach, Inc., entered into an agreement with Pacific Horizons, Inc., wherein Pacific Horizons would develo...
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OPINION Appeal is taken herein from an order of the trial court granting the defendants’ motion for a judgment on the pleadings. We affirm. I. BACKGROUND Prior to the commencement of the above-entitled case, the appellants, OWEN W. MOORE and LETITIA E. MOORE, were the certified representatives of a class in a California Superior Court action brought against the appellees, SIGMUN...
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OPINION INTRODUCTION The Carnation Company (Carnation) appeals from a decision of the bankruptcy *660 court declaring Carnation’s contractual security interest in a note secured by real and personal property assets (mixed collateral) void as violative of California Code of Civil Procedure (C.C.P.) § 726. We affirm. ISSUES 1. The correctness of the applicat...
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OPINION Debtor appeals from the denial by the bankruptcy court of an injunction against a creditor who, after bankruptcy, sued and took a judgment in state court on a discharged pre-bankruptcy debt. The general issue in this appeal is whether appellant’s assertion of a bankruptcy discharge as a defense in a state court action seeking recovery on a pre-bankruptcy debt and his subsequent filing o...
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OPINION Impulsora Del Territoria Sur, S.A., dba Hotel Solmar (plaintiff) appeals from a judgment of the bankruptcy court which held that the debtors’ liability to the plaintiff is dischargeable. We affirm. FACTS Plaintiff operates a hotel in Cabo San Lucas, Baja, Mexico. In April 1973, plaintiff entered into an agreement with an entity known as C.V.R. Investments (“CVR”). CVR was a partnership co...
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OPINION Debtors Frank Louis and Louise M. Laczko appeal from an order of the bankruptcy court granting summary judgment in favor of creditor Gentran, Inc. This proceeding concerns the claim of a creditor, added to the debtors’ schedules after the time for filing claims had expired. The question presented is whether that debt can be discharged in a no-asset case where the omission of the credi...
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*680OPINION This is an appeal from an order of the bankruptcy court authorizing the debtor in possession to reject its contract with appellant. We affirm. FACTS Appellant is an attorney at law. Aesthetic Specialties, Inc. (ASI) is in the business of manufacturing and selling alcoholic beverages in specialized decorative containers. In September, 1979 ASI retained appellant for the purpose of pursu...
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The Court tried this case in Bend, Oregon on May 19-20, 1983. At the conclusion of trial, the Court announced its decision and *683 made oral Findings. The Court herein makes its written Findings of Fact and Conclusions of Law. I find that the liability of Robert L. Morris to the plaintiff, which I find to be $101,660.00, is dischargeable in bankruptcy. The debt is not a liability: (1) “for f...
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MEMORANDUM, OPINION AND ORDER This cause coming on to be heard on the Complaint of the Debtor, GERALDINE WELLS, [Plaintiff] represented by Robert L. Edwards, Attorney at Law, pursuant to Section 523(a)(8) of the Bankruptcy Reform Act of 1978 [Code] to determine the dis-chargeability of debt, and upon the Answer thereto of the Creditor, PEOPLE OF THE STATE OF ILLINOIS, ex rel., ILLINOIS STATE ...
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37 B.R. 687 (1984) In the Matter of Geraldine WELLS, Petitioner-Appellee, Debtor, v. PEOPLE OF the State of ILLINOIS, ex rel., ILLINOIS STATE SCHOLARSHIP COMMISSION, Respondent-Appellant, Creditor. Nos. 83 C 7177, 80 B 14841 and 82 A 1357. United States District Court, N.D. Illinois, E.D. February 2, 1984. Robert L. Edwards, Chicago, Ill., for debtor/plaintiff. Josh Hershman, Chicago, Ill., for S...
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DECISION Plaintiff is a bankrupt, and defendant has filed an appeal from a decision by Bankruptcy Judge Toles dated June 24, 1983, 37 B.R. 684, in which he found that *688plaintiff’s debt for an educational loan in the amount of $5,573.20 had been discharged. Specifically, Judge Toles found: Plaintiff’s financial condition is such that she and her family are already living at poverty level. The fa...
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MEMORANDUM ORDER ALLOWING CLAIMS Alex Berco and Stella Berco, unsecured creditors of the above-named Debtor, filed an application for allowance of claims. A hearing was held before the undersigned on this matter on July 1, 1983. *689 FACTS A judgment was entered against Debtor and in favor of Alex Berco and Stella Berco on June 16, 1981, in the District Court, Fourth Judicial District, He...
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MEMORANDUM AND ORDER This cause came to be heard on the defendant’s (IRS) motion to dismiss plaintiffs’ (Datair) adversary complaint for injunctive relief. The IRS contends that Datair lacks standing to bring said complaint; that the IRS has not waived its sovereign immunity; and that Datair is barred by Section 7421(a) *692 of the Internal Revenue Code from bringing said sui...
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MEMORANDUM AND ORDER On May 10, 1983, the debtor filed for relief under Chapter 7 of the Bankruptcy Code (Code). On October 4, 1983, plaintiff filed the instant complaint to determine the dischargeability of a debt. A final hearing, after notice, was held on November 18, 1983. From the records in the case and the testimony adduced at the hearing, the following facts have been established....
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FINDINGS OF FACT (1) The Ceiling Fan Distributor, Inc. (debtor) incorporated on May 7, 1981. (2) Upon formation, and continuously since then, Lee Rowley owned 50% and Larry Bachuss owned 50% of corporate stock. They were the only directors of the company. . (3) About November 1981, Bachuss and Rowley had a dispute. Rowley left the company; Bachuss continued to operate it. (4) Rowley withd...
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ORDER OF COURT On April 26, 1983, plaintiff served a summons and complaint to determine discharge-ability of a debt upon the debtor and upon the debtor’s attorney by first class mail. The debtor failed to answer the complaint by May 25, 1983 as required by the summons. The debtor also failed to attend the scheduled pre-trial conference held on June 1, 1983. Upon plaintiff’s motion, a defa...
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DECISION ON MOTION TO EXCLUDE ITEMS PROM APPEAL RECORD Defendants in this adversary proceeding timely filed notice of appeal from the judgment of this court, dated November 1,1983, setting aside a strict foreclosure of a Wisconsin land contract as a fraudulent transfer under 11 U.S.C. § 548, 33 B.R. 642. In designating the record for appeal to the district court, counsel for defendants-appell...
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OPINION Plaintiff-debtors initiated this adversary proceeding to avoid a judgment lien held by defendant. Plaintiff-debtors argue that the judgment lien impairs an exemption on their real property to which they are entitled under Georgia law and, therefore, pursuant to 11 U.S.C. § 522(f)(1) this Court should avoid the lien. This Court has previously found that the language of § 522(f)(1) which ...
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MEMORANDUM OPINION AND ORDER Debtors are dairy farmers. Ozark Production Credit Association, hereinafter PCA, holds a security interest in some cattle. In early June of 1982, debtors obtained 200 dairy cattle, entering into what are denominated Cow Lease Agreements. First National Bank of Carrolton, hereinafter the Bank, claims an interest of some sort in the cattle subject to the lease. ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE AND JUDGMENT GRANTING THE WITHIN COMPLAINT AS TO THE DEFENDANT CARL GENE MOORE AND ACCORDINGLY ENTERING NONDISCHARGEABLE JUDGMENT AGAINST HIM AND FOR PLAINTIFF IN THE SUM OF $17,906.90 The plaintiff requests in this action that the defendants’ indebtedness to it not be discharged in bankruptcy because of the allegedly willful and malic...
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OPINION On October 21, 1983, this court issued an order requesting the parties in interest to assist the court in its determination of whether the debtor’s Chapter 13 plan should be confirmed or whether the objections to confirmation should be sustained. Despite several previous hearings and written briefs, the evidentiary record which the parties had relied upon to support their legal co...
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MEMORANDUM DECISION Plaintiff claims over $280,000 damages from the debtors’ infringement of plaintiff’s trademark and has opposed the debtors’ discharge with a barrage of charges. The matter was tried on December 6. I conclude that plaintiff’s claim is excepted from discharge, but that plaintiff has failed to establish a ground for denial of discharge. Plaintiff makes and markets expensive, ...
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MEMORANDUM OPINION AND ORDER This cause comes on to be heard upon the complaint to lift the automatic stay filed by RUTH SWAN, a/k/a BETTY MAE SWAN [Swan], ELIZABETH SEIMENIS [Seimen-is], ELAINE STRYSKI [Stryski] and LYNN JACOBSON [Jacobson], represented by MEYER H. WEINSTEIN, in the bankruptcy proceeding of GEORGE and DENA DERVOS, d/b/a ATHENAIKON HELLENIC AMERICAN SCHOOL, a/k/a ATHENAIK...
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MEMORANDUM OPINION AND ORDER This matter comes on to be heard on the plaintiff’s complaint to sell the debtor’s real property free and clear of liens under the provisions of 11 U.S.C. § 363. Two of the defendants, i.e. County of Pitt and Town of Ayden, resisted the sale. On December 15, 1981, an Order was entered directing the sale of the real property free and clear of the statutory liens of P...
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MEMORANDUM AND ORDER In this adversary proceeding the trustee, pursuant to 11 U.S.C. 1 § 542(a) 2 , is seeking an order compelling the South Carolina National Bank (SCN) to turn over to the trustee funds on deposit in the debtor’s bank accounts in SCN on the date that the debtor filed his petition for relief under Chapter 7 of the Bankruptcy Code (11 U.S.C. § 701, ...
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OPINION The Chapter 13 debtor filed a complaint to avoid a lien on his automobile pursuant to 11 U.S.C. § 522(f)(2). The debtor characterized the lien as a non-possessory, non-purchase money lien on a tool of the trade. The creditor has disputed the tool of the trade characterization of the property to which the lien attaches. Because this court finds (1) that creditor’s lien is a non-pur...
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This action comes to the Court for a determination of the dischargeability of a debt due the Central National Bank of Mat-toon (the bank) by debtor Jack F. Gadberry pursuant to 11 U.S.C. § 523(a)(2)(B). (Count II of Complaint) * The Court encounters Dischargeability Complaints on false financial statements practically every week, but now directly faced with a specific challenge to its philosoph...
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MEMORANDUM OPINION AND ORDERS I. Introduction THIS MATTER comes before the Court pursuant to a Complaint filed by the Chapter 7 Trustee of the above-named debtors in which he seeks an order declaring dissolution and directing windup of a partnership, an order authorizing sale of partnership property free and clear of the interest of the partnership and general partners and fo...
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OPINION AND ORDER This matter is before the Court upon Plaintiff’s complaint to determine the dis-chargeability of certain debts under 11 U.S.C. § 523(a)(5). Considering the stipulation of facts and briefs of the parties, the Court concludes that the obligations in question are dischargeable under the Bankruptcy Code. FACTUAL BACKGROUND Plaintiff/Debtor, Joseph W. Plaugher, filed a voluntar...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Complaint to Determine Dischargeability filed by the Plaintiff-Creditor. At the conclusion of that proceeding the Court requested the parties to submit post-trial briefs and any additional evidence they wished the Court to consider. The Court has reviewed all the evidence and the arguments of counsel, both in the briefs an...
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DECISION SUSTAINING TRUSTEE’S OBJECTION TO CLAIMS OF EDWARD CONSOVE, AND GRANTING IN PART THE TRUSTEE’S REQUEST FOR ATTORNEY’S FEES Heard on July 18, 1983, on the trustee’s objection to the allowance of claims filed by Edward Consove, and on trustee’s counterclaim for interest, costs, and attorney’s fees. More than three years ago, on September 23, 1980, Roco Corporation was petition...
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DECISION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, HOLDING LOAN USURIOUS AND PAYMENTS REFUNDABLE Heard on cross-motions for summary judgment. Household Finance Corporation, the plaintiff in this matter, filed a complaint to have its loan to Glenn R. Swartz, Jr. declared nondischargeable. Swartz counterclaimed (Count I) that the loan contract between the parties is usurious and void be...
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OPINION These proceedings against the two debtors, Harvey H. Sobel and Florence N. Sobel, have as their purpose to establish the liability of the Sobéis to the plaintiffs for compensatory and punitive damages due to fraud and the nondischargeability of these liabilities. With the consent of all sides, the action brought by Silvio Montalto was consolidated for all purposes with the suit br...
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Memorandum Decision Introduction This adversary proceeding was filed by plaintiff Security Bank of Nevada (Bank) to determine the dischargeability of a debt incurred by the debtor, one of its former customers. For the reasons detailed below, the Court concludes the debt is nondis-chargeable. 1 Facts In November 1981 (the exact day is not apparent from th...
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MEMORANDUM OPINION AND ORDER This matter arises out of a Complaint for Avoidance of Preferential Transfer and Monetary Judgment filed against the defendant, Brown Feed & Chemical Company (hereinafter ‘Brown’), in the Chapter 11 case of Amex Trading Company, Inc., fka Evergreen Trading Company, Inc. and Evergreen Brokers, Inc., 1 BK No. 83-20311, Adversary No. 83-0526. The compl...
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DECISION AND ORDER ON DEFENDANT’S JURY TRIAL DEMAND AND PLAINTIFF’S MOTION TO STRIKE In answering the two complaints served in the adversary proceedings commenced by Harold Young, the Trustee (“Trustee”) of this Chapter 7 debtor, Paula Saker & Co., Inc. (“Paula Saker”), several of the defendants demanded, pursuant to Rule of Bankruptcy Procedure 9015 (“Bankruptcy Rules”), a jury trial in ...
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ORDER ON FEE APPLICATIONS A confirmation hearing was held on January 9 upon this debtor’s chapter 11 plan. The plan has been confirmed. At the same time, two fee applications were heard. The National Association of Credit Management of South Florida Unit, Inc., has filed an application (C.P. No. 70) for $3,750 for services: “rendered in representing the Creditors’ Committee both unofficially and o...
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*817 MEMORANDUM STATEMENT OF FACTS: Before the Court are the final applications for compensation and for reimbursement of expenses in the Chapter X proceeding of Citizens Mortgage Investment Trust (“CMIT”). Before examining the merits of each fee application, a review of the history of this Chapter X case is appropriate. CMIT filed its Chapter X Petition under the Bankr...
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MEMORANDUM At issue is whether the plaintiff debtors, pursuant to 11 U.S.C.A. § 522(f)(1) (1979), may avoid a federal tax lien, 26 U.S.C.A. § 6321 (1954), and levy, 26 U.S.C.A. § 6831 (1954), upon insurance proceeds from the destruction of their home, ordinarily exempt under applicable state law. Tenn. Code Ann. § 26-2-304 (1980). I The debtors filed their voluntary petition for...
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FINDINGS OF FACT On July 21,1975, Debtor, Robert C. Todd, established Individual Retirement Account Number 50-0062-9 at the Bank of Dixie, seeking to take advantage of the tax laws which provide favorable tax treatment to such accounts. On that day, Mr. Todd deposited with the Bank of Dixie, $1,500.00 to establish his Individual Retirement Account. Over the next several years, various deposits ...
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OPINION On April 20, 1981, Detroit Plastic Products (debtor) filed for relief under chapter 11 of the Bankruptcy Code. On April 29, 1981, the case was converted to chapter 7. When the case was converted, the debtor owed Foothill Capital Corporation (Foothill), a secured creditor, $4,807,977. This debt was secured by all assets of the debtor. Since the secured debt apparently exceeded the fair mar...
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MEMORANDUM OF DECISION DENYING MOTIONS FOR SUMMARY JUDGMENT AND TO VACATE JUDGMENT; ORDER TERMINATING ORDER LIMITING DISCOVERY A hearing was held on February 7, 1984, at 10:00 A.M. before the Honorable Ralph G. Pagter, United States Bankruptcy Court, to consider motions for summary judgment made by San Antonio Acres, 72 Plus, and Barnes and Jorrie in Adv. LA 83-2721-JB. Also heard was a m...
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OPINION The issue in dispute is whether we should grant the defendants’ motion for summary judgment on a complaint seeking recovery for defamation and interference with contractual relations. For the reasons stated herein, we will grant the motion. The facts of the case are as follows: 1 The debtor filed a petition for relief under chapter 7 of the Bankruptcy Code (“the Co...
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DECISION ON APPLICATION TO HAVE DEBT OF BENEFICIAL FINANCE CO. OF NEW YORK, INC., DECLARED NONDISCHARGEABLE. Beneficial Finance Co. of New York, Inc. (“Beneficial”) has filed a complaint objecting to the dischargeability of the debt owed to it by the debtor, Sue Contento, on the ground that it is nondischargeable under 11 U.S.C. § 523(a)(6) because of the debtor’s conversion of insurance ...
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MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO STRIKE DEMAND FOR JURY TRIAL This matter is before the Court on the plaintiff’s (FISCO) Motion to Strike Demand for Jury Trial in an adversary proceeding to recover a preference. I. BACKGROUND The defendant, Apollo Sign Company (Apollo), allegedly received three preferential payments totalling $4,859.00 within ninety days prior to the April 2,...
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MEMORANDUM OPINION AND ORDER This matter came on to be heard on the complaint of the Firstmark Financial Corporation to determine the dischargeability of a specific debt pursuant to 11 U.S.C. § 523(a)(6). Considering the evidence adduced at trial, the stipulations of fact, and the memoranda of law submitted by the parties, the Court finds the debt to be dis-chargeable. FACTUAL BACKGR...
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OPINION Currently before this court are two motions in this adversary proceeding: (1) defendants’ motion to dismiss plaintiff’s complaint; and (2) plaintiff’s motion for a jury trial. The complaint, originally filed January 24, 1983, was brought to set aside a 1978 conveyance by the debtor to his wife of their residence. A second conveyance of a Stardust Houseboat was also challenged in t...
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MEMORANDUM OPINION This is a prototype preference action arising in the aftermath of the collapse of Wathen’s Elevators, Inc., which filed for reorganization under Chapter 11 on May 12, 1982. Although we deal with a payment made February 23,1982, to a single farmer, we necessarily fashion a rule of law that may control the disposition of payments made to several farmers just prior to the ...
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DECISION AND ORDER GRANTING MOTION FOR LEAVE TO FILE A CLAIM OUT OF TIME Heard on December 1, 1983 on the trustee’s objection to the Motion of Thorp Credit, Inc. for leave to file a proof of claim out of time. Thorp argues that regardless of its failure to file a timely, formal proof of claim, the debtors, the trustee, and the Court had actual notice, within the statutory time period, tha...
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ORDER On October 30, 1981, the Hartford Accident and Indemnity Company (“Hartford”) commenced the above-referenced adversary proceeding to determine the dischargeability of a debt. Hartford prays that its claim in the amount of $45,000.00 in this bankruptcy case will be determined to be nondis-chargeable. Hartford’s claim is based on a civil judgment against the debtor, John David Rose, J...
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ORDER The Official Creditors’ Committee of Specialty Products, Inc. (hereinafter referred to *882as the “Committee”), John Glucklin, et al., commenced the above-referenced adversary proceeding on June 6, 1983. Answers were timely filed by each of the above-named defendants: Specialty Products, Inc. (“Specialty Products”), the debtor herein; Lancaster Colony Corporation (“Lancaster Colony”); and W...
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OPINION The issue before us is whether we should grant the trustee’s complaint against the defendant to collect accounts receivable for goods delivered. Assuming, arguendo, that the defendant accepted the goods in question, we find that the defendant effectively revoked its acceptance of the goods in question based on their nonconformity with the type of goods ordered by the defendant. Accordingl...
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DECISION AND ORDER DENYING TRUSTEE’S MOTION FOR SUMMARY JUDGMENT Submitted, ostensibly, on an “Agreed Statement of Facts”, on the trustee’s motion for summary judgment. On July 12, 1982, Charles H. Nolan, Inc., entered into an oral agreement with Cable Rhode Island Sports Production, Inc., d/b/a CRISP, to provide CRISP with certain electronic video equipment, with “rent” to be paid on a monthly ba...
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MEMORANDUM OPINION ON APPLICATION^) TO EXTEND TIME TO OBJECT TO DEBTOR’S DISCHARGE The Court fixed February 6, 1984 as the last day for the filing of objections to discharge of Jane Benedum Floyd (“debtor”). On February 6, 1984, Lou Lattimore, Inc. (“Lattimore”) filed an application for extension to file a complaint objecting to the discharge of the debtor. Lattimore attempted simultaneously to...
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OPINION The question before us is whether the property of the estate of an individual debt- or includes a piece of real estate titled in the name of the debtor as executrix of a decedent’s estate. We hold that it does not. *894 The undisputed facts are as follows: 1 Brenda Cherry (“the debtor”) filed a petition under chapter 13, listing as one of her assets, the premises located at 5035 G...
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ORDER DENYING MOTION FOR PROTECTIVE ORDER Richard A. Davis has filed an objection to debtor’s counsel’s application for compensation, alleging, inter alia, that debtor’s counsel “held and represented interests adverse to the estate, was not a disinterested party, and had conflicts of interest among the clients it purported to represent.” Davis alleges that conflicts of interest...
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MEMORANDUM OPINION AND ORDER Debtor filed for relief in October of 1981. At that time and to the present it owned certain over-the-road tractors and trailers in which CIT Corporation, hereinafter CIT, and CIT Financial Services, hereinafter Financial, have security interests. Prior to July 1983 no request for adequate protection was made by either creditor and debtor made no payments alth...
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MEMORANDUM The Plaintiffs Complaint seeks a determination of nondischargeability pursuant to 11 U.S.C. Section 523(a)(6) of, a judgment Plaintiff Morin obtained against the debtor Longo in the District Court Department, Fourth Eastern Middlesex Division in the amount of Eleven Thousand Eight Hundred and Ninety dollars ($11,890). The state court judgment, based on violations of Mass.Gen.Laws Cha...
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MEMORANDUM OPINION While this action was initiated as a complaint for injunctive relief, all injunction related issues are now moot, and the issue now before the Court is whether the plaintiff, a Chapter 11 debtor, has established that the events set out in his complaint have created a transfer avoidable as a preference according to the terms of 11 U.S.C. § 547(b) as to the defendants Freddie T...
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DECISION AND ORDER ON MOTION TO DISMISS On June 22, 1983, George Blake filed a petition for relief under Chapter 11 of the Bankruptcy Code (the Code). Chemical Bank, the principal creditor, then filed a motion on October 24, 1983, to dismiss the Chapter 11 petition under section 1112(b) of the Code. This motion was joined in by Chase Manhattan Bank on November 8, 1983. Section 1112(b) grants th...
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DECISION RE REJECTION OF LABOR CONTRACT The captioned case has been substantively consolidated with a number of other cases, one of which is a Chapter 11 case which was filed for Peterbilt of Dayton, Inc. (hereafter Peterbilt). The several cases which are consolidated all were filed on July 9, 1982. On May 27, 1983 Peterbilt filed Application for Approval of Debtor in Possession’s Rejecti...
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OPINION The case before us was badly presented. By agreement, no testimony was offered. Instead, counsel made statements of purported facts, interspersed with inadmissible bits of hearsay. No one objected to anything. The issue is whether a creditor may apply certain postpetition monies received from the debtor against the debtor’s pre-petition account with said creditor. Because any such...
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OPINION 1 The issue before the Court is whether Philadelphia Gas Works (“PGW”) can demand payment from the debtor for stolen gas before restoring her gas service even though she was living away from home at the time the gas theft occurred. For the reasons stated herein, we find there is insufficient evidence to connect the debtor with the tampering and gas theft which took place o...
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MEMORANDUM OPINION In this Chapter 13 case, the Debtors have objected to Claim No. 4, filed as a secured claim by Citizens National Bank of Greater St. Louis, for $186,295.35 “plus accrued interest.” The Proof of Claim, dated August 1, 1983, and filed on August 22, 1983, reflects a principal amount owing of $148,-728.81, and $37,566.53 in interest charged through August 1, 1983. The Debtors obj...
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This is an action by the trustee in bankruptcy for Economy Milling Company, Inc., (debtor), to recover two payments of One Thousand Dollars ($1,000.00) each made to the appellant, William Cannington, during the ninety (90) days immediately preceding the filing of the debtor’s petition in bankruptcy. The matter was heard in the Bankruptcy Court where judgment was entered in favor of the trustee....
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MEMORANDUM OPINION AND ORDER This is an appeal from an order of the United States Bankruptcy Court for the Northern District of Texas entered January 28, 1983. 27 B.R. 220. That order involved pension plans of Braniff Airways, Inc. (“Braniff”) and as a “related proceeding,” see 29 U.S.C. § 1303(f), must be reviewed de novo by this Court under § d(3) of the Local Rule of the Northern Distric...
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ORDER On May 4, 1982, Marjorie Orr Brantley, the debtor and appellant in this action (hereinafter “debtor”), filed a voluntary bankruptcy petition pursuant to Chapter 13 of the Bankruptcy Code, 11 U.S.C. § 1301 et seq. The debtor also submitted a proposed plan which provided that all unsecured creditors were to be paid 100 cents on the dollar on the unsecured claims, that the debtor would make $1...
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MEMORANDUM ORDER This case is brought before this Court on appeal from a ruling in favor of The Citizens National Bank of Greenville, Texas (“Citizens”) in which the United States Bankruptcy Court for the Northern District of Texas, Dallas Division, issued an order granting relief from an automatic stay pursuant to Section 362(b)(1) of the Bankruptcy Code of 1978, 11 U.S.C. § 362(b)(1). H...
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*932 MEMORANDUM AND ORDER Presently before the court is an appeal by a trustee in bankruptcy. The trustee is appealing an order of the bankruptcy court which modified an automatic stay 1 and required the trustee to turn over certain goods in trustee’s possession to the buyer of the goods. The facts, as set forth by the bankruptcy court, are undisputed. I. FACTS ...
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This case is presented to the court by way of appeal from an order of the U.S. Bankruptcy Court for the District of South Carolina (hereinafter “Bankruptcy Court”). Jurisdiction is based upon 28 U.S.C. § 1334 (1976). The appellant, Joanne Mitchell Wolfe, excepts to the January 25, 1983, order of the Bankruptcy Court denying her claim for interest and attorneys’ fees on an indebtedness. The Bank...
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*940 OPINION I. On October 19,1982, a three count indictment was filed charging Defendants Bert Gigli and Edward Gigli with violations of 18 U.S.C. §§ 371, 152 and 2. ' On October 20, 1983, the indictment against Defendant Edward Gigli was dismissed with prejudice, due to the death of Defendant Edward Gig-li. Trial as to Defendant Bert Gigli commenced October 27, 1983, and on November 17,19...
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OPINION I. PRELIMINARY STATEMENT This is an appeal from an order of the Bankruptcy Court that denied the applieation of the debtors for authority to use cash collateral, and in addition granted the secured lender relief from the automatic stay provision of the Bankruptcy Code. I have jurisdiction over this matter pursuant to 28 U.S.C. § 1334, and will affirm the order of the Bankrupt...
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OPINION AND ORDER The above captioned case is an appeal by the bankrupt corporation, Cooperativa Caf-eteros de P.R., from an order of the United States Bankruptcy Court of the District of Puerto Rico, dated January 29, 1982. The appellee in this action is the Trustee of the estate of the bankrupt cooperative. For the reasons stated below, this appeal is hereby dismissed. A. SUMMARY O...
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ORDER This matter is before the court on plaintiff/creditor’s application for leave to appeal, filed December 15, 1983. Dismissed. *957On September 20, 1983 the United States Bankruptcy Court for the Northern District of Iowa issued findings of fact, conclusions of law and an order denying and dismissing plaintiff/creditor’s complaint. Plaintiff/creditor now seeks to appeal that order on the groun...
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OPINION This is an appeal from the trial court’s decision that certain payments made by a general contractor directly to the subcontractor-debtor’s materialman constituted voidable transfers under § 547 of the Bankruptcy Code. The trustee cross-appealed the trial court’s decision that certain payments made by a general contractor to the debtor’s laborers and to purchase additional car...
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OPINION I. BACKGROUND On August 13, 1979, the appellant, Pan American Bank of Los Angeles, loaned $91,-000 to Nick and Clara Mallas who agreed to pay interest thereon at 13.5% on a monthly basis, and then pay the principal amount in full on August 12, 1980. The loan was secured by a deed of trust and assignment of rents on commercial property in La Puente, California, owned by the bo...
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MEMORANDUM AND ORDER The Official Unsecured Creditors Committee and Tascosa National Bank, a creditor, each challenged an “agreed order” for use of cash collateral and adequate protection which had been entered by this Court on September 7, 1983. Under that order the debtors had effectively recognized the security interest of InterPirst Bank Odessa, N.A. (“Bank”) in properties owned by on...
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MEMORANDUM OPINION AND ORDER DEBTOR’S OBJECTION TO CLAIM NO. 39 I. INTRODUCTION IntraWest Bank of Denver (formerly the First National Bank of Denver, (hereinafter “IntraWest” or “Bank”)) filed a proof of claim as an unsecured claimant in the personal bankruptcy of Elmer D. Werth (hereinafter “Werth”). This claim is denominated as Claim No. 39, and is for approximately $525,630.0...
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MEMORANDUM The issue is whether a federal court jury verdict and judgment against the debtor for violation of the plaintiffs constitutional rights has collateral estoppel effect in this dischargeability proceeding pursuant to 11 U.S.C.A. § 523(a)(6) (West 1979). After review of the entire federal court record, as mandated in this circuit by Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.1981), the...
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MEMORANDUM The issue is whether a state court jury verdict and judgment against the debtor for.assault and battery has collateral estop-pel effect in this nondischargeability proceeding under 11 U.S.C.A. § 523(a)(6) (West 1979). After review of the entire state court record, as mandated in this circuit by Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.1981), the court finds that...
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MEMORANDUM ON ALLOWANCES After pending for over four years, during which the assets of these debtors have, for the most part, been reduced to cash, these cases are drawing to a close. A liquidating plan has been approved by this court and applications for allowance for fees and expenses have been filed by the attorneys for the debtors, the attorneys for the petitioning creditors, the atto...
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ORDER This matter is before the court on defendants’, City of Dubuque and Dubuque Airport Commission, unresisted motion to dismiss appeal, filed February 10, 1984 in *1023the United States Bankruptcy Court for the Northern District of Iowa. Granted. On February 23, 1984, the clerk of the bankruptcy court certified the instant'motion and related documents to this court. See Bankruptcy Rule 8007(d)....
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Appellees George and Maxine Boucher filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code on May 3,1982. At the time of filing, the Bouchers and Carlson were involved in two lawsuits in Nebraska District Court.1 The Bouchers did not list Carlson as a creditor on their schedules or give him notice of the filing. However, the Bouchers’ statement of financial affa...
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