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All Reporters → br → Volume 57

Opinions in br Volume 57

FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came on to be heard on December 14, 1983, before the Honorable George C. Paine, II, Judge upon the Complaint of the Trustee, Answer of the Defendants, Motion for Summary Judgment and Brief filed on behalf of the Trustee, Motion for Summary Judgment and Brief filed on behalf of Michael J. Poling and Teresa L. Poling, Stipulation of Facts, argument...
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OPINION ON COMPLAINT FOR AN ACCOUNTING, DECLARATORY JUDGMENT AND OTHER RELIEF On April 10, 1984, plaintiff filed a complaint seeking to have the AmSouth Bank make an accounting as to certain funds paid to it in satisfaction of a judgment lien obtained by the bank against this debtor, C. W. Norman. In the course of administration of this estate, the trustee has paid various sums to the AmSouth Bank...
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MEMORANDUM DECISION AND ORDER DENYING MOTION TO REMAND OR ABSTAIN AND TRANSFERRING PROCEEDING On December 18, 1984, 666 Associates (“666”), an Illinois limited partnership, filed a Chapter 11 petition in this district. Following a hearing at which numerous creditors requested a change of venue, the bankruptcy court issued an order dated January 25, 1985 in which it transferred the 666 Cha...
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REASONS FOR DENIAL OF PLAN CONFIRMATION I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). Pursuant to Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisia...
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I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to the Bankruptcy Judge for ...
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OPINION ON MOTION OBJECTING TO ALLOWANCE OF CLAIMS OF AMERICAN PETROFINA MARKETING, INC., HUNT OIL COMPANY, MURPHY OIL COMPANY, INC., BELCHER OIL COMPANY, TRIANGLE REFINERIES, INC., AND HILL PETROLEUM COMPANY, INC. STATEMENT OF THE CASE Debtors Doyle and Norma Chism filed their petition in bankruptcy under Chapter 11 reorganization on August 23, 1983. They listed certain unsecured de...
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OPINION ON COMPLAINT TO RECLAIM THE CASE The First Montgomery Bank (FMB) seeks in this proceeding to require the Slo-comb National Bank (SNB) to turn over to FMB certain inventory consisting of fans, lights and fireplace devices. Both banks claim a valid and perfected security interest in this inventory, which is located in a store on Ross Clark Circle in Dothan, Alabama. Trustee makes no claim to...
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ORDER DENYING MOTION FOR APPROVAL OF ASSUMPTION OF LEASE On March 15, 1985, the House of Emeralds (“Debtor”) filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. On May 10, 1985, the Debtor filed a Notice of Assumption of its store lease with the Royal Hawaiian Shopping Center, Inc. (“Royal Hawaiian Shopping Center”). Subsequently, on May 13, 1985, the Debtor fil...
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OPINION RE: § 707(b) SUBSTANTIAL ABUSE DISMISSAL The Court set this case for a hearing on the question of whether it should be dismissed pursuant to § 707(b) of the Bankruptcy Code. The debtor is a wage earner who works in the produce department of a grocery store. He has 16 years seniority and is a member of a union which has acceded to some concessions in its most recent collective...
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ORDER DENYING ALLOCATION OF PAYMENT TO TRUST FUND TAXES Application has been made to the Court for an Order requiring the allocation of certain payments on an Internal Revenue Service proof of claim to what are commonly referred to as “Trust Fund Taxes.” The United States has pointed out that such an allocation benefits the potential “Responsible Officers” of the debtor but not necessaril...
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The parties have consented to the court’s adjudicating this adversary proceeding uPon stipulated facts and legal memoranda submitted by the parties, The debtor, Transit Homes, Inc. (Transit), alleges that it made two payments, totaling $3,542.74, to the defendant, South Carolina National Bank (SCN), which are preferences under 11 U.S.C. § 547. The defendant denies that these payments are preferenc...
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MEMORANDUM AND ORDER In this adversary proceeding, The Citizens Bank, seeks the denial of a discharge to the debtor, pursuant to 11 U.S.C. § 523(a)(2), on account of the debtors’ indebtedness to the bank as shown on proof of claim number 3 filed herein by the bank. Counsel for the defendants (the debtors in possession) moved for a dismissal of the adversary proceeding on the ground that the Sum...
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MEMORANDUM AND ORDER Ronald B. Sopkin, the debtor, filed a petition for relief under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 101 1 et seq., on October 26, 1983. The debtor claimed, as exempt property, his Individual Retirement Account (IRA). In this adversary proceeding the trustee seeks the turnover to him of the account, the denial of the exemption claimed by the debtor, and a det...
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MEMORANDUM AND ORDER This matter is before the court on the motion of the debtor to avoid, pursuant to 11 U.S.C. § 522(f), 1 a lien of his former wife, Evelyn Kay Shands, on his residence. The former wife contends that her lien is not a judicial lien (therefore, not avoidable under § 522(f)(1)) but is an equitable lien arising from the parties’ divorce settlement. FACTS Silas 0. Shands an...
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MEMORANDUM AND ORDER In this adversary proceeding Newberry Feed and Farm Center, Inc. seeks a determination that certain debts owed to it by the debtors, Robert L. Miller and Lucy S. Miller, d/b/a Circle M Farms, are nondis-chargeable pursuant to 11 U.S.C. § 523(a)(2). FACTS The debtors filed their petition for relief under Chapter 13 of the Bankruptcy Code *53 (11 ...
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DECISION AND WRITTEN REASONS I. Jurisdiction of the Court This is a proceeding arising in a case under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cas...
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OPINION This is an adversary proceeding brought by Ambico, Inc. (“Ambico”), a creditor of the debtor-defendant A.I.C. Photo, Inc. (“AIC”), to reclaim certain goods delivered to AIC two days or less before AIC filed for relief under Chapter 11. This is a core proceeding over which the United States Bankruptcy Courts enjoys jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(o). Venue is pr...
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Before the court are the objections to the claim of the Veterans' Administration (VA) filed by the debtors and the trustee. I The trustee objects to the claim of VA on the ground that it was filed late. The debtors filed their petition for relief under Chapter 13 of the Bankruptcy Code (11 U.S.C. § 101, et seq.) on April 21, 1982. The first meeting of creditors wa...
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MEMORANDUM OPINION This matter came before the court upon creditors’ objections to the debtors’ motion to assume a lease. The relevant facts are not disputed. The debtors filed for relief under chapter 11 on June 21, 1985. On August 20, 1985, 59 days later, the debtors filed a “NOTICE OF MOTION TO ASSUME LEASE”. This pleading was directed at the lease involving the above-referenced creditors. Also...
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MEMORANDUM AND ORDER The plaintiff seeks to recover radio and navigational equipment (the avionics system) from the debtor estate. FACTS The plaintiff and the debtor entered into a contract of sale in which the debtor agreed (1) to buy from the plaintiff a Piper Cherokee 180 aircraft, to which the plaintiff held clear title, or (2) to find a buyer therefor. The contract calls fo...
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ORDER DISCHARGING ORDER TO SHOW CAUSE This Court heard argument on its Rule to Show Cause against Jeffrey Solomon, Esq. at a hearing on November 19, 1985, following the filing of the Motion for Order to Show Cause by debtors in this Chapter 13 proceeding. The debtors’ attorney and Mr. Solomon stipulated that Mr. Solomon as attorney for Interamerican Car Rental, Inc. proceeded to attempt to re...
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MEMORANDUM OPINION There are no material disputes as to the facts involved in this case; the statement of facts comes from the government’s brief in support of its motion for summary judgment, which the plaintiff adopted in his brief in support of his motion for summary judgment. The debtor and his wife did not file their federal income tax returns for the years 1969 through 1974 until December...
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OPINION Before the Court are applications for commissions and fees filed by the trustee, Marianne DeRosa, on behalf of herself and her predecessor now deceased, by Marianne DeRosa as attorney for the trustee, and by Weiner & Silverman, identified as of counsel to Horwitz & Associates, attorney for the debtor. Ms. DeRosa, who succeeded William S. Brown as trustee on October 2, 1984, d...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE DECLARING THE PLAINTIFF’S INDEBTEDNESS TO DEFENDANTS TO BE NONDISCHARGEABLE WITH RESPECT TO DEFENDANT DONALD E. SOTTA AND DIS-CHARGEABLE AS TO THE DEFENDANT VERA MAXINE TALLEY The plaintiff debtor seeks a decree of dischargeability, pursuant to § 523(a)(5) of the Bankruptcy Code, of his respective indebtedness to the defendants which were cr...
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The trustee is seeking to avoid payments made by Ernie Causey Ford, Inc. (debtor) to Ford Motor Credit, Inc. (FMC) on the ground that they are preferential transfers avoidable under 11 U.S.C. § 547(b).1 FMC asserts that the payments come within the exception to § 547(b), as provided in § 547(c)(3), and are not avoidable. FACTS On October 19, 1983, the debtor filed a petition for relief under Chapt...
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Because of similar facts and a common issue of law, this memorandum will address, jointly, objections filed by trustees to homestead exemptions claimed by debtors in two different cases. FACTS I In the case of Sandra S. and David R. Smith, Douglas A. Spoto has filed an objection to the real estate exemption claimed by David R. Smith in the filing of his bankruptcy case on April 3...
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MEMORANDUM DECISION ON EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER; MOTION FOR PRELIMINARY INJUNCTION The facts of this case are largely undisputed. Sam Daily Realty, Inc. (hereinafter “Daily”), filed a petition for reorganization under Chapter 11 of the Bankruptcy Code on November 11, 1984. On or about March 2, 1984, the Department of Commerce and Consumer Affairs, State of Hawa...
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MEMORANDUM AND ORDER The debtor asks the court to enjoin the Internal Revenue Service (IRS) from seizing assets of the debtor in order to satisfy post-confirmation tax liabilities. In the alternative, the debtor seeks actual and punitive damages for IRS’ alleged violation of the automatic stay provided in 11 U.S.C. § 362(a). IRS seized the debtor’s assets prior to trial, thereby rendering...
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MEMORANDUM AND ORDER The matter before the court is the confirmation of the debtor in possession’s Chapter 11 plan of reorganization. *92 The Federal Land Bank (FLB), a creditor, elected, under 11 U.S.C. § 1111(b)(2) 1 , to have its entire claim treated as secured. The debtor in possession proposes to retain some of FLB's collateral for use in hi...
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MEMORANDUM OPINION This matter came before the court upon Benjamin Franklin Savings & Loan’s (hereinafter referred to as the “Bank”) objection to confirmation of the debtor’s chapter 13 plan herein. The Bank objected to the debtor’s plan because the plan proposed to modify the rights of the Bank. Since the debt owed to the Bank is secured only by a security interest in real property ...
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MEMORANDUM OPINION This matter came before the court upon Umatilla Electric Co-op Association’s (hereinafter referred to as “Umatilla Electric”) motion to compel assumption or rejection of an alleged executory contract. Umatilla Electric and the debtor, Merle A. Gehrke, entered into several agreements for the furnishing by Umatilla Electric to Gehrke of electric power. It is these agreements ...
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MEMORANDUM This is an action by the plaintiff Bank to have the defendant debtor held liable for a debt not dischargeable in her bankruptcy case. The complaint is based on a credit card charging spree. The court finds the facts as follows. *100The debtor had a Mastercard credit card for several years before April 11,1984. At that time, her credit limit was $1300. Charges on the card totaled $676.7...
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Defendant has moved to dismiss as untimely the plaintiff trustee’s complaint to avoid certain transfers. At issue is whether Bankruptcy Rule 9006(a) applies in computing the two-year limitations period made applicable in 11 U.S.C.A. § 546(a) (West 1979) to the exercise of avoidance powers under the Bankruptcy Code. I Plaintiff trustee, James R. Martin, was appointed trustee of th...
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OPINION ON MOTION TO AVOID JUDICIAL LIEN UNDER SECTION 522(f) On September 6,1985, the debtors filed a motion to avoid the judicial lien of Commercial Union Insurance Company and Crista-bel Stevens (designated in the motion as Christian Stevens) under Title 11, U.S.C. § 522(f). The motion was set to be heard on October 7, 1985, at Montgomery, and was called at that time. The court at that tim...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 liquidation case and the immediate matter under consideration is a Motion for Summary Judgment filed by Ishbel MacKenzie, the Plaintiff in the above-styled adversary proceeding. It is the contention of the Plaintiff that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law. The Plainti...
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MEMORANDUM This is a suit by the chapter 13 debtors against the holder of a mortgage on their house, Mid-State Homes, to determine how they should divide the money paid by the fire insurance company after the house burned to the ground. The parties stipulated the facts as follows. On November 22, 1980, Wendell N. Gass and wife, Dorothy M. Gass entered into and signed a contract with ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 liquidation case, originally commenced as a Chapter 11 case but due to the Debtor’s inability to achieve confirmation was converted to a liquidation case. The matter under consideration arose in an adversary proceeding commenced by the Debtor-in-Possession during the pendency of the reorganization. After conversion of this case to a...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS an involuntary Chapter 7 case which was filed against Dana Sjostedt. The involuntary petition was filed on October 26, 1983 by two petitioning creditors, Edwin B. Salmon (Salmon), Jr. and Alpha Three, Inc. (Alpha). Subsequently, three additional creditors joined the petition: Lewis Stahlman on November 28, 1983; Mary Lu Dixon on December 20, 1983; an...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 11 case and the matter under consideration is the assertion of several claims by Hallmark Builders, Inc. (Debtor) against Eastern Development Consolidated, Inc. (EDC) and Terry Cypher (Cypher). The claims are presented by the Debtor in a Complaint consisting of four Counts. The claim in Count I is based on an alleged bre...
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MEMORANDUM OPINION AND ORDER DENYING MOTION TO STRIKE THIRD AMENDED COMPLAINT This cause comes before the Court on the Motion of ANDREW B. DOPPELT (“debt- or”) to strike the Third Amended adversary Complaint filed by CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO (“Continental”) and to dismiss the suit. That Complaint sought to have a large judgment recovered against debtor dec...
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MEMORANDUM OPINION AND ORDER GRANTING DEBTOR’S MOTION FOR SUMMARY JUDGMENT Defendants KENNETH B. WOLMER and MARY ELLEN WOLMER (“debtors”) moved to Strike and Dismiss the Complaint or alternatively for Summary Judgment on the complaint of BARTLETT BANK & TRUST COMPANY (“Bank”). That Complaint objected to discharge of debtor defendants. For reasons set forth below, that motion is grant...
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DECISION ON MOTION FOR RECONSIDERATION Heard on motion to reconsider our October 2,1985 order, wherein John F. Cuzzone, Jr., Esq., attorney for a secured creditor Joseph A. Sullivan, was awarded attorneys’ fees of $500, plus expenses of $4.00. Steven H. Orabone, Esq., who appeared on Mr. Cuzzone’s behalf at the September 5, 1985 hearing, was unable to describe to the Court the nature of t...
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*138 MEMORANDUM OPINION This matter again comes before the Court on a hearing pursuant to 11 U.S.C. § 1125(b) to approve an amended disclosure statement of the debtor, Ronald L. Pecht. There was a previous hearing on September 20, 1985 to approve a disclosure statement, which statement this Court declined to approve by its Memorandum Opinion and Order of October 8, 1985, 58 B.R. ...
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Claude S. Hill, debtor in possession, asks the court to void any lien defendant Robert Marcella claims against certain stock certificates and $610.00 cash in the custody of the United States Marshal for the Southern District of New York. Hill contends a prejudgment levy obtained by Marcella expired because Marcella failed to commence a “special proceeding” extending the life of the levy. N.Y.Civ.P...
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MEMORANDUM OF OPINION AND ORDER This matter is before the court on the motion of Morris Glassman (“Glassman”) *148 for application of Bankruptcy Rule 7023 and for class certification of claim, the motion of Electronic Theatre Restaurants Corporation (ETRC”), debtor and debtor-in-possession, for summary judgment in favor of ETRC as a matter of law and to dismiss proof of claim number 99 insofa...
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OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION AGAINST CRIMINAL PROSECUTION This Court granted the debtor a temporary restraining order [P. 6] on August 6, 1985, which enjoined the defendants from continuing a criminal prosecution in a Texas state court against the debtor for a period of ten days. The order also provided that a hearing would be held upon the instant complaint of the de...
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OPINION The first of two issues presented in this opinion is whether prepetition debts may be setoff against postpetition obligations. The second point for decision is whether there is a breach of an implied warranty of merchantability when a computer is billed as compatible with the software of a competitor although, in fact, it cannot operate some of the competitor’s software programs. For th...
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ORDER REVOKING APPROVAL BY THE COURT OF EMPLOYMENT BY THE DEBTOR OF ATTORNEYS The above-styled case was commenced by a voluntary petition of the debtor, Willie Jo Estes, filed in the United States Bankruptcy Court on April 17, 1984, under the provisions of title 11, chapter 11, United States Code, seeking a reorganization of the debtor’s financial affairs. After enactment of the Bankruptc...
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MEMORANDUM This adversary proceeding came before the Court for trial on the Complaint of the chapter 7 trustee, Robert Cataldo (“the trustee”) seeking a determination of the nature and extent of a warehouseman’s lien on property of the debtor, Knoware Inc., (“the debtor”) asserted by the defendant, Casey & Hayes, Inc., (“Casey & Hayes”) for moving and storage charges in the sum of $6127.2...
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57 B.R. 166 (1986) In the Matter of UITERWYK CORPORATION, et al., Debtors. Bankruptcy No. 83-166. United States Bankruptcy Court, M.D. Florida, Tampa Division. January 17, 1986. Edward A. Hill, Langford, Mooney & McDuffee, P.A., Tampa, Fla., for creditor Charles Molho, etc. Cindy L. Turner, Stichter and Riedel, P.A., Tampa, Fla., for debtors. ORDER DENYING AMENDED MOTION FOR RECONSIDERATION ...
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ORDER DENYING AMENDED MOTION FOR RECONSIDERATION This matter has come before the court upon amended motion for reconsideration, through counsel, by claimant, Charles H. Molho, d/b/a Manhattan Ship Supply. Counsel states that his failure to attend hearing relating to debtor’s objection to the claim filed by his client to be heard on August 2, 1985 at 10:00 a.m., was due to his own inadvertence and ...
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MEMORANDUM OPINION The matter before the Court is the Trustee’s Complaint To Avoid A Preferential Transfer Under Section 547 of the Bankruptcy Code. This Adversary proceeding was originally commenced against the above-captioned three defendants. However, by stipulation approved by this Court, the actions against Three Rivers Bank and Trust Company and Liberty Bell Savings and Loan have been dismis...
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ORDER ON MOTION FOR REHEARING THIS IS a Chapter 11 case and the matter under consideration is a Motion for Rehearing. The Motion was filed by Malka Isaak, attorney for the Debtor, and was directed to the order heretofore entered by this Court on December 27, 1985, 56 B.R. 159. That order was in response to three motions filed by Joseph L. Cabella, a creditor. The first motion sought to lift the...
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The chapter 13 trustee sold real property belonging to the debtor. The property was subject to the mortgage of Citizens Savings and Loan, and before confirmation of the Chapter 13 plan, was subject to the State of Tennessee’s tax lien. The question is how much, if any, from the sale proceeds must be paid to the State to satisfy the debt secured by its tax lien. The facts are as follows. Ma...
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The trustee in the bankruptcy of A. Fass-nacht & Sons, Inc., brought this suit against Suzanne Fassnacht to recover an “insider” preference. 11 U.S.C. § 547. As the statute applies to this case, the trustee can recover only if Suzanne Fassnacht had reasonable cause to believe the company was insolvent at the time of the transfer. 11 U.S.C. § 547(b). Trial was held first only on that issue. The tra...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT This matter comes on for consideration on the defendant’s motion for summary judgment on the ground that the pleadings and exhibits show that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law that the plaintiff be accorded no relief as requested in his complaint, that the action be dis...
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REASONS FOR JUDGMENT I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to the Ban...
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MEMORANDUM DECISION AND ORDER On October 6,1983, Scott Hadden (“debt- or”) commenced a civil action in Rock County Circuit Court against Stettler Construction Co. (“Stettler”). The debtor’s first cause of action was for breach of a construction contract earlier entered into between the parties (“the contract”), and his second cause of action was for theft by contractor. On October 26, 1983, Ste...
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DECISION ON MOTION FOR AN ORDER TO VACATE THE AUTOMATIC STAY AND TO PERMIT SETOFF Manufacturers Hanover Trust Company (“Trust Company”) has moved for an order pursuant to 11 U.S.C. § 362(d) for relief from the automatic stay in order to permit Trust Company to offset monies deposited by the debtor in accounts maintained by him at several of its branches. The debtor, who voluntarily filed ...
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ORDER The plaintiff/debtor in possession, Corporate Jet Aviation, Inc. (“CJA”), commenced this adversary proceeding against the defendant, Charles D. Vantress (“Vantress”), by filing a complaint to recover $450,000.00 paid to Vantress by CJA in redemption of 350 shares of CJA common stock. One of the five counts in CJA’s complaint alleges that the redemption should be set aside as a fraud...
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ORDER DENYING MOTION FOR REHEARING THIS IS a Chapter 11 reorganization case and the matters under consideration are a Motion for Rehearing of this Court’s Order Extending The Time To Assume Or Reject Lease entered on October 22, 1985 (Extension Order). The issue before the Court is whether the lessor, Old Hyde Park Village Center, Ltd. (Old Hyde Park), under the facts in this case, is ent...
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MEMORANDUM OPINION The matter before the Court is FSC Corporation’s (hereinafter “FSC”) Complaint To Compel Payment Of A Debt, Interest, Attorneys’ Fees and Costs. At issue is FSC’s Motion For Partial Summary Judgment, wherein it is averred that there is no genuine issue of material fact and that FSC is entitled to judgment as a matter of law. For the reasons hereinafter set forth, this Court dete...
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DECISION AND ORDER ALLOWING DEFENDANT’S CLAIM AS SECURED IN PART AND UNSECURED IN PART This matter is before the court upon the complaint of the Chapter 13 Trustee to determine the extent and value of a secured interest claimed by Thorp Credit, Inc. of Ohio [“Thorp”] in the household goods of William G. Whitt, a Chapter 13 debtor. FACTS The sole witness for the trustee at trial was Ruth H. Whitt, ...
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DECISION The question presented is whether a forged or unauthorized signature, purporting to be that of an authorized representative of the purchaser, on title applications for 50 trucks, resulting in the issuance of certificates of title for these trucks with the secured party’s lien upon each title, voids the lien on each title as against the debtor-in-possession. At a trial conduc...
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ORDER ON MOTION TO DISMISS THIS IS another instance, recurring with more and more frequency in this District, which involves a challenge of the right of a Debtor to maintain a Chapter 11 case. This challenge, usually interposed by a secured creditor who is frustrated by the automatic stay imposed by § 362 of the Bankruptcy Code, is based on the contention that the petition was filed in “bad fai...
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MEMORANDUM OPINION I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to ...
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REASONS FOR JUDGMENT I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has *223original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to the Bank...
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REASONS FOR JUDGMENT I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court *225for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to the Bank...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion For Summary Judgment filed by the Defendant, Dorothy Verplatse, and the Motion For Summary Judgment filed by the Defendants, Albert A. Verplatse and Pool-Pals Manufacturing, Inc. (hereinafter Pool-Pals). The parties have filed their written arguments respecting the merits of these Motions and have had the oppor...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Trial on the Complaint to Determine Dis-chargeability. The Court has heard the evidence offered by the parties and the arguments made by counsel. Although the parties have been afforded the opportunity to file post-trial arguments, they have not done so. The Court has reviewed the evidence and arguments as well as the entire rec...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion For Summary Judgment filed *237 by the Plaintiff against the Defendant Dearborn Chemical Co. The parties have submitted their arguments regarding the merits of the Motion and have had the opportunity to respond to the arguments made by opposing counsel. The Court has reviewed those arguments as wel...
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MEMORANDUM ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY FINAL JUDGMENT This proceeding came on for hearing on December 16, 1985, on the parties’ cross Motions for Summary Judgment. Upon consideration of oral argument and post-hearing briefs, the Court finds as follows: On August 17, 1979, plaintiff, Cyrus Lu-ley, entered a Florida Marine Security Agreement-Retail Installment Contract (Contract) w...
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FINDINGS & ORDER This dispute between the trustee and a creditor who has moved for relief from stay concerns a motor vehicle that, like the phoenix, has risen from its ashes. The creditor had perfected a security interest in a truck that was largely destroyed in an accident. The creditor believes that this security interest covers a reconstructed truck incorporating parts salvaged from th...
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OPINION AND ORDER This matter is before the court upon the objection of the defendant United States of America to the Debtor-in-Possession’s attempt to direct the allocation of payments from the proceeds of the sale of real property to the tax lien claim of the Internal Revenue Service. The Government argues that any payments made in the course of bankruptcy proceedings are “involuntary” ...
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MEMORANDUM OPINION I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion of the Bankrupts For Leave To File Amended Tax Claim and the Joint Motion To Consolidate the United States’ Proof of Claim filed by the Bankrupts and by the Internal Revenue Service (hereinafter IRS). The Court has conducted a Hearing on these Motions and has heard the arguments of counsel. The Court has reviewed tho...
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OPINION The essence of the dispute in the case at bench is whether we should sustain the trustee’s objection to a proof of claim filed by a retail purchaser of carpet on the basis that the customer received in substance the same type of carpet he ordered. For the reasons stated herein, we conclude that the trustee’s objection should be sustained. We summarize the facts of this case as follows:1 Th...
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FINDINGS AND ORDER These proceedings are before the Court on VNB’s motion for relief from automatic stay and its- complaint for a declaratory judgment that 11 U.S.C. Section 362 does not operate to toll and suspend the debtor’s time to redeem its equity of redemption. Because we find that the debtor failed to offer VNB adequate protection, we grant VNB’s motion for relief from stay. ...
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The debtor’s attorney has made application for allowance of fees and expenses as a professional person employed pursuant to 11 U.S.C. § 327 (1979 & Supp.1985). Objections have been filed by the trustee and another creditor to those portions of the application which reflect services performed for the personal benefit of the debt- or, not the estate. A hearing was held pursuant to 11 U.S.C. § 330...
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*273 DECISION ON MOTION TO CONVERT CASE TO CHAPTER 7 OR TO DISMISS CASE. Gibraltar Corporation of America (“Gibraltar”) the holder of both a secured and an unsecured claim in this Chapter 11 case, has moved for an order pursuant to 11 U.S.C. § 1112(b) converting this case to a case under Chapter 7 of the Bankruptcy Code, or for dismissal of the case. Manufacturers Hanover Trust C...
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MEMORANDUM AND ORDER The debtor-in-possession, Peter J. Deme-tralis, instituted this adversary proceeding against Golden Guernsey, Inc. to recover four alleged preferential transfers under 11 U.S.C. § 547. 1 The debtor has filed a *280 motion for summary judgment. In analyzing the motion, all contested facts must be viewed from the point of view most favorable to t...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Debtor’s Motion To Reopen Proceeding and the Opposition to that Motion filed by Maria Schlegel. The Court conducted a Hearing on this Motion, at which the parties offered both evidence and argument. The Court has reviewed the evidence, arguments, and the entire record in this case. Based upon that review and for the followi...
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MEMORANDUM OPINION THE SECURED Creditor’s motion for relief from stay in this case presents an opportunity for this Court to express an opinion on the appropriate stay litigation procedure. The Rules of Bankruptcy Procedure adopted by the Supreme Court changed stay litigation from adversary proceedings, essentially law suits, to contested matters, essentially motion practice. (See Rules of Bank...
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At issue in this chapter 13 case is the validity of a $27,500.70 “secured” claim filed by Union County Bank. The Bank contends the claim, based on a note signed only by the debtor’s husband, is secured by real property owned solely by the debtor. Challenging the validity of the claim are both the debtor and the trustee. 1 Also at issue is whether the debtor is entitled to recover of ...
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MEMORANDUM DECISION The Court having considered the memorandums of the parties and having been otherwise advised, finds that the damages awarded in the Order of Contempt dated September 30, 1985, are property of the estate pursuant to 11 U.S.C. § 541(a)(1) and (7)- Florida National Bank replevied before December 20, 1983, the date debtor filed for relief under 11 U.S.C. Chapter 11, an A-66 Ford Tr...
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MEMORANDUM OPINION CASE SUMMARY This case is before the Court on the creditor’s motion to terminate the automatic stay as to the debtors’ home for failure to pay its allowed claim for attorneys’ fees in the amount of $6,475.00. The Court is called upon to decide when the debtors are required to pay this claim in the context of a Chapter 13 repayment plan. For the reasons h...
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MEMORANDUM I The debtors commenced a chapter 7 case on December 9, 1983. On July 5, 1985, the plaintiff Federal Deposit Insurance Corporation commenced this adversary proceeding to determine the validity, extent and priority of an asserted lien on rental income generated by two parcels of real property encumbered by certain deeds of trust. *305 When the debtors filed th...
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MEMORANDUM CONCERNING MOTIONS TO EXTEND TIME FOR FILING OBJECTIONS TO DISCHARGE Before the court are the motions of creditors Joyce E. McDowell and the Sparks State Bank for an Order extending the time for filing objections to the debtor’s discharge. After reviewing the motions and, for the purposes of this decision, accepting all factual allegations contained therein as true, we believe that t...
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These three cases are related to four others involving an individual, William R. Drexler (“Drexler”) and three corporations affiliated with him. On July 15, 1983, the court had entered orders for relief against the three corporations (the “Original Corporate Debtors”) as a result of involuntary petitions filed on June 23, 1983. Concurrently herewith the court is issuing its decision granting th...
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OPINION Confronted by a fee application submitted by the debtor’s counsel, we are faced with the question of whether we may award counsel fees when the assets of the estate are fully encumbered. On the basis of the reasons outlined below we conclude that no award of fees may be made. We summarize the few pertinent facts of this case as follows: 1 The debtor filed a petitio...
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OPINION The issue for decision is whether we should grant an application of a debtor-partnership for the employment of an accountant to prepare the debtor’s tax records although all of the debtor’s assets are fully encumbered. Since we find that the accountant’s services would not protect or enhance the value of the encumbered property, but would solely benefit the individual partners of ...
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MEMORANDUM DECISION AND ORDER By notice of motion dated December 27, 1985, 450 Village Company (“Landlord”) *320 has sought an order of this court awarding to it attorneys’ fees in the amount of $20,-135.97 and interest of $2,678.67 on late rent. The Debtor, Ribs of Greenwich Village, Inc., originally opposed both aspects of the motion but has withdrawn its opposition to the ...
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OPINION On December 23, 1983, Andrew Driscoll (“debtor”) filed his petition for relief under chapter 13 of the Bankruptcy Code. On April 2, 1984, the IRS filed its claim for the following amounts: secured tax claim Sl^lSe.íW 1 unsecured priority tax claim 970.38 unsecured tax claim 140.82 The debtor’s chapter 13 plan provides for monthly payments of $21.00 per ...
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ORDER ON OBJECTION TO CLAIM FINDING CLAIMANT TO HOLD A PERFECTED SECURITY INTEREST NOTWITHSTANDING LACK OF RECORDATION This matter came on to be heard on August 12, 1985 at 9:00 a.m. on the objection of the trustee in bankruptcy to Claim No. 1 filed by Sears, Roebuck & Company. The court is called upon to decide whether a purchase money security interest in consumer goods is an exception to the r...
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ORDER The Debtors filed the above-styled contested matters seeking to avoid certain liens pursuant to 11 U.S.C. § 522(f)(2)(A). Hearings were held on September 9, 1985 and November 14, 1985, after which the Court took the matters under advisement. Respondents oppose the avoidance of said liens and urge the Court to adopt the guidelines set by the Federal Trade Commission [hereinafter “FTC”] reg...
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MEMORANDUM OPINION AND ORDER The issue before the Court is whether a post-petition year-end bonus paid by the Debtor’s employer is property of the estate to which the Trustee is entitled. The facts appear as follows. The Debt- or, David L. Palmer, an employee of Lincoln Electric Co., Inc., filed his Chapter 7 petition in this Court on June 18, 1985 and the Plaintiff, George I. Vogel,...
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ORDER Suzanne Frazier, f/k/a Suzanne Bangs (Frazier), filed a motion for relief from stay to allow the Indiana Alcoholic Beverage Commission (ABC) to reissue license No. RR92-16729 in her name. Neither the debtor-in-possession while this case was in chapter 11 nor the trustee after it was converted to chapter 7 has addressed this motion. This matter was taken under advisement August 26, 1...
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ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT FOR DEFENDANT AND ORDER DENYING MOTION FOR REHEARING This cause came on to be heard upon the motion for relief from judgment for defendant and order denying motion for rehearing filed by Stephen H. Judson, trustee, on December 30, 1985. This court is initially concerned with its jurisdiction to hear this motion purportedly filed under Rule 60(b), Fed....
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MEMORANDUM OPINION The matter presently before the Court is Debtors’ Complaint to Avoid Judicial Liens. Pennsylvania Central Federal Credit Union was the only Defendant to have answered the Complaint and default judgments were entered against all other Defendants. Pennsylvania Central Federal Credit Union (hereinafter “Defendant”) argues that pursuant to the Pennsylvania Lien Priority Law its l...
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ORDER DISAPPROVING OBJECTION TO CLAIM On January 7, 1986, this cause came on to be heard by this court on debtor’s objection (C.P. No. 41) to the claim of Isabel R. Radin, his former wife. At issue are payments due to creditor-spouse stemming from a Final Judgment of Dissolution of Marriage (Exhibit No. 2). Counsel for the debtor submits that a portion of the claim, based on the aforesaid jud...
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OPINION The matter for resolution in the case before us is whether under a chapter 13 plan a debtor must pay interest on arrear-ages arising from a secured debt, even though the debt is secured by a home mortgage. For the reasons outlined herein, we hold that the interest must be paid. The facts of this controversy are as follows: 1 Several years ago the debtor granted a m...
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OPINION The matter for resolution in the case before us is whether the debtor has lodged a valid objection to a former employee’s proof of claim in which the employee seeks vacation and severance pay. On the basis of the reasons outlined below we will sustain the objection in part and reduce the claim from $10,764.67 to $7,783.16. The facts of this controversy are as follows: 1 Through its preside...
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In a previous action in this case, the Court found that the debtors’ machinery and hay seized, held, but not disposed of on the date the instant bankruptcy petition was filed were owned by the debtors, were property of the bankruptcy estate, and must be turned over to the debtors. The Court further provided that the bank would retain its lien and remain a secured creditor. In re Davis, ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came on to be heard on July 3, 1985 upon the complaint to determine validity and extent of liens filed by plaintiff/debtor, Robert Charles Sabin and the responses of Stephen H. Butter and Brian R. Hersh, defendants. The parties stipulated and agreed that the facts were undisputed and the court should decide the issues presented as a matter of law....
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MEMORANDUM OPINION This is an appeal from the June 8, 1984, Bankruptcy Court order permitting disbursement of $30,000 to officers of the debtor in satisfaction of those officers’ claim for post-petition wages. It is also an appeal from the Bankruptcy Court order confirming the debtors’ plan of reorganization. On November 2, 1984, this court heard oral arguments on the appeal. L. Mark...
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ORDER This cause comes before the Court on the appeal from the Bankruptcy Court filed by the United States. The Bankruptcy Court’s decision to enjoin the government from assessing and collecting the taxes owed by Arthur Clement, Jr., pursuant to 26 U.S.C. § 6672 is reversed and the final judgment is VACATED. The corporate debtor, A & B Heating and Air Conditioning, Inc., filed for pr...
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AFFIRMANCE OF BANKRUPTCY ORDER This is a proceeding for review of the final order of the United States Bankruptcy Court for the Southern District of Iowa, 55 B.R. 394, Judge Stageman presiding. Jurisdiction is predicated on 28 U.S.C. § 1334(a), and the appeal is permitted under Bankruptcy Rule 8001(a). Briefs have been filed by the appellant and appellee as provided by Bankruptcy Rule 8009(a). ...
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ORDER Filed with the Court are parties’ memorandums as to the jurisdiction of this Court and the Bankruptcy Division concerning the matters presently before it, including the movant’s motion to vacate the February 10, 1984 order of dismissal. Pursuant to Fed.R.Bank.P. 924, and Fed.R.Civ.P. 60, an order generally may not be vacated unless appealed within one (1) year, which this one was not. In...
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ORDER Lawrence Sherwood Craghead, debt- or/appellee herein, owns 458 acres of farmland in Auxvasse, Missouri. He farms another 800 nearby acres per a lease arrangement. Community Federal Savings and Loan Association, appellant herein, holds a [first] deed of trust on the 458-acre farm property. The deed of trust secures a December, 1978 loan in the original principal balance of $240,000. ...
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MEMORANDUM OPINION AND ORDER Before the court are Debtor’s Notice of Appeal, filed October 28, 1985; Debtor’s Motion for Leave to Appeal, filed November 14, 1985; Debtor’s Motion to Strike, filed December 10, 1985; and the First National Bank of Chicago, Bankers Trust Company, and the First National Bank of St. Paul’s (“the Banks”) Motion to Dismiss Appeal, or in the Alternative, Motion t...
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MEMORANDUM OPINION This is a consolidation of two separate causes filed by plaintiff, Robert H. Smith, trustee of Reidy Marketing Company, Inc., who brings this adversary action for the turnover of sums held by defendant Mark Twain National Bank. 1 The cause came on for trial before this Court on June 17,1984. All uncontested facts have been stipulated to by the parties, and al...
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MEMORANDUM ORDER On November 27, 1985 Associates Finance, Inc. (“Associates”) filed a notice of appeal to this District Court from the November 8, 1985 order (the “Order”) issued by Bankruptcy Judge John Schwartz dismissing Associates’ Complaint against Francis and Susan Amann (“Amanns”), but granting leave to amend. For the reasons briefly stated in this memorandum order, the appeal is dismissed...
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MEMORANDUM OPINION This matter comes before the Court on an appeal from a Bankruptcy Court order. The question presented is whether the U.S. Trustee has standing to move the dismissal of a debtor’s Chapter 11 proceedings or their conversion to Chapter 7 status. A-l Trash Pick-up (A-l) filed a Chapter 11 petition in April of 1984, along with a disclosure statement and a reorganization...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on Appeal by Kevin E. Haggerty from Order of the United States Bankruptcy Court for the Southern District of Mississippi, Jackson Division, dismissing Haggerty’s Chapter 13 Petition pursuant to the provisions of 11 U.S.C. § 109(f)(1). 1 FACTS The record herein reveals that debtor, Kevin E. Haggerty, filed three petitions under C...
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ORDER ON APPEAL FROM BANKRUPTCY COURT Plaintiff, Marguerite C. Shine appeals from an order of the Bankruptcy Court, District of New Hampshire which held on reconsideration that the support and maintenance obligation owed to plaintiff was dischargeable in Bankruptcy. This court has jurisdiction pursuant to 28 U.S.C. § 158(a). The facts are as follows: The debtor, Louis Shine and ...
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OPINION This is an appeal from a decision of the Bankruptcy Court which sustained an objection by Associates Commercial Corporation (“Associates”) to the claimed status of appellant ITT Industrial Credit Company (“ITT”) as a secured creditor of debtor Daniel A. Savidge (“Savidge”). Matter of Daniel Savidge, 49 B.R. 429 (Bankr., D.Del., 1985). The facts relevant to the appe...
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MEMORANDUM OPINION AND ORDER First National Bank of Geneva (“Bank”) appeals 1 from two orders of Bankruptcy Judge Robert L. Eisen: 1. his July 8, 1985, 51 B.R. 77, order (“Order I”) granting the United States’ summary judgment motion and denying Bank’s corresponding cross-motion; and 2. his August 16, 1985 order (“Order II”) denying Bank’s motion for rehearing. For the reasons stated in...
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MEMORANDUM OPINION This is an appeal by the South Dakota Cement Plant (cement plant) from an order of the bankruptcy court, dated May 31, 1985, dismissing as moot the cement plant’s motion for an extension of time to file a complaint objecting to discharge. 11 U.S.C. § 1141. It is undisputed 1 that appellant never received notice of the deadline for filing a § 1141 complaint, as...
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57 B.R. 398 (1986) In the Matter of CABAZON INDIAN CASINO. CABAZON INDIAN CASINO, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE, Defendant-Appellee. BAP No. CC-85-1006-MVAb. United States Bankruptcy Appellate Panels of the Ninth Circuit. Argued and Submitted September 19, 1985. Decided February 5, 1986. *399 Virginia S. Criste, Mack, Kahn & Criste, Palm Springs, Cal., Glenn M. Feldman, Zio...
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MEMORANDUM AND ORDER Creditor Illinois Department of Public Aid has objected to confirmation of the chapter 13 plan of this debtor, Linda Boyd, on the ground that her plan has not been proposed in good faith. The court will sustain the objection and deny confirmation. Quite frankly, Miss Boyd is a dishonest debtor who wishes to avoid the repayment of public assistance she received because...
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*413 ORDER This matter is before the Court upon the motion of North Duke Mall Limited Partnership (“North Duke”), Debtor, to reopen bankruptcy proceedings which had been closed by order of this Court dated September 21, 1981. North Duke had filed a petition seeking relief under Chapter XII of the Bankruptcy Act on January 3, 1979. At the time of its filing, the partnership was co...
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ORDER Upon consideration of the motion to withdraw filed by counsel for the Debtors, it appears that the grounds set forth in the motion are insufficient in law to support such a motion. Those grounds are: (a) that the clients refused to accept counsel’s advice to convert their case from a Chapter 11 debtor-rehabilitation case to a Chapter 7 liquidation case and (b) that the clients “complained ab...
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MEMORANDUM DECISION AND ORDER On June 21,1984, KDT Industries and its related debtors (“KDT”) commenced an action against the defendant, C & C Umbrella (“C & C), seeking to recover an alleged preferential transfer in the amount of $12,-955.64. KDT made payment of $12,955.64 to C & C on July 20, 1982. On August 5, 1982 KDT and certain of its affiliates filed petitions for relief under Chap...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT DENYING PLAINTIFF’S COMPLAINT AS TO REAL PROPERTY AND OTHERWISE DISMISSING IT WITHOUT PREJUDICE This is an action brought by the plaintiff trustee in bankruptcy to recover an alleged preferential transfer to some or all of the defendants within the meaning of § 547 of the Bankruptcy Code. The facts, established by trial and by the files a...
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PRE-TRIAL ORDER The plaintiff is secretary of the creditors’ committee and authorized by the terms of a confirmed plan to prosecute a complaint against Monsanto Company for the recovery of a preferential transfer. The complaint seeks a money judgment for the sum of $889,858.95. The defendant Monsanto Company in its answer to the complaint demands a jury trial pursuant to Rule 9015 of...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT The above-captioned matter came on before the undersigned United States Bankruptcy Judge on April 25, 1985, at St. Paul, Minnesota, upon cross-motions for summary judgment. Plaintiffs appeared by Stephen F. Grinnell, attorney for the Unsecured Creditors Committee. Defendant appeared by its attorney, T. Chris Stewart. Upon the mo...
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DECISION AND ORDER This matter came to be heard on the motion of debtors for an order reopening their Chapter 7 bankruptcy to add a creditor. Upon consideration of the pleadings, oral argument, and the law, the court denies debtors’ motion. FACTS On November 15, 1983, debtors filed a Chapter 7 petition but they did not schedule Associates Commercial Corporation (hereafter “Associates”) as a...
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OPINION Came on for consideration the complaint to determine the dischargeability of a debt, as well as, a motion seeking relief from the automatic stay, both filed by Sue McVay Ivy, hereinafter referred to as the Plaintiff; answer to said complaint and response to said motion filed by Charles Allen McVay, hereinafter referred to as Debtor; all parties being represented by their respective atto...
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ORDER Upon consideration of the Debtor’s application for authority to pay administrative rent with a promissory note, the opposition thereto by the Debtor’s Landlord, D.C. One Associates, the Debtor’s reply, and the Landlord’s supplemental opposition, as well as the entire record of this case, it appears that the issue before the Court is whether payment of “administrative rent” under 11 U.S.C. §...
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MEMORANDUM OPINION Plaintiff, the Trustee in bankruptcy (the “Bankruptcy Trustee”), presently holds a certain fund of surplus proceeds from a pre-petition deed of trust sale of real property of the Debtors’. The Bankruptcy Trustee seeks an order from this Court declaring, in effect, that said fund is not subject to any prior interests therein. Finance One of Virginia, Inc. (“Finance One”), the Def...
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MEMORANDUM OPINION This matter arises upon the Motion to Determine Tax Liability filed on behalf of the Trustee in this case. The issue presented is whether the estate of the Debtors, who are individuals and not corporations, is subject to federal income tax for the years 1980-1983, inclusive. The parties, who are the Trustee and the Internal Revenue Service, have agreed that the facts are not ...
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MEMORANDUM GRANTING SUMMARY JUDGMENT Plaintiffs moved for summary judgment under 11 U.S.C. § 523(a)(2)(A) on affidavits and on the claimed collateral estoppel effect of defendant’s plea of guilty to and conviction for securities fraud in the Circuit Court for Multnomah County. Pursuant to Bankr.R. 7056 incorporating Fed.R.Civ.P. 56, I find that summary judgment should be entered in favor of plain...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The debtors filed their Chapter 7 liquidation case in 1984. On April 29, 1985, the debtor filed this adversary proceeding against the Internal Revenue Service alleging that under section 523(7)(B) of the Bankruptcy Code various tax liens against the debtor should be cancelled and be declared discharged in bankruptcy. After evidence and arg...
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MEMORANDUM OPINION AND ORDER On April 22, 1985, the United States of America, on behalf of the Farmers Home Administration, filed a Complaint for Turnover of Cash Collateral comprised of rental proceeds from the 1985 lease year, derived from farmland in which FmHA alleges it holds a security interest superior to the Trustee’s interest. The Trustee, Michael J. Farrell, denies that FmHA has...
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MEMORANDUM AND ORDER This matter is before the court to consider a Motion for an Ex Parte Order confirming the Debtors’ Second Amended Plan of Reorganization. On January 28, 1985 the Debtors filed an Application for Confirmation pursuant to § 1129(b)(1) commonly known as the “cramdown” provision. Under the Second Amended Plan, unsecured creditors are to be paid $12,000.00 in deferred cash payme...
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MEMORANDUM AND ORDER On November 12, 1985, the Debtors, Leroy Bohne and Terri Bohne brought a Motion for Use of Cash Collateral. By their Motion the Debtors wish to use the cash collateral proceeds derived from the sale of livestock. The First National Bank of Het-tinger (“bank”) holds a security interest in the proceeds and has objected, believing its interest will not be afforded adequa...
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ORDER DENYING DEBTORS’ MOTION TO DISMISS This chapter 7 case was filed voluntarily on August 16. Three months later the debtors moved for voluntary dismissal alleging that: “At the present time, the debtor wishes to pay his creditors and no longer desires to discharge his liabilities.” The debtors also allege their opinion that dismissal is automatic and would not require a hearing before the cour...
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ORDER The Debtors on November 27, 1985 moved for dismissal of the above captioned adversary proceeding asserting that the Complaint fails to state a claim upon which relief can be granted. This adversary case originated by Complaint filed by United Bank of Bismarck on November 15, 1985 and as later amended on November 29, 1985. By its Complaint captioned, “Complaint to Determine Dis-chargeabi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Herbie K’s, Inc., filed a Chapter 11 petition in bankruptcy, on March 16, 1984. Prior to this, the corporation had failed to pay over to the Internal Revenue Service (IRS) taxes withheld from its employee’s wages. As a result, the IRS has issued a final notice dated July 31, 1985 advising John H. Smith, Marshall J. Paige and Vickie Smith Paige that ...
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Memorandum and Order This matter is before the Court on the motion of Paul Angelacos “To Enforce Court’s Order Confirming Sale”. Paul Angelacos is the purchaser of “the trustee’s right, title, and interest in and to the beneficial interest of Land Trust LT 867 [First National Bank of Mount Prospect as Trustee under Trust 867 dated November 29, 1976, hereafter Mount Prospect Bank and Land ...
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FINDINGS DENYING PRIORITY STATUS TO CLAIM NO. 1020 OF JOINT BOARD OF TRUSTEES OF WESTERN CONFERENCE OF TEAMSTERS TRUST FUND The Joint Board of Trustees of the Western Conference of Teamsters Trust Fund (“Board”) filed a claim for $1,531,582.11 asserting administrative priority under 11 U.S.C. § 507(a)(1) for withdrawal liability imposed by 29 U.S.C. § 1381(a). The Board based liability on...
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MOTION TO REOPEN CASE AND COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF DEBTS FINDINGS OF FACT AND CONCLUSIONS OF LAW On September 25, 1985, the above-named Debtors filed a motion to reopen their closed case in which they had obtained a discharge in bankruptcy. An amended motion to reopen was filed on October 11, 1985, which is the same as the original motion to reopen except there has been added a ...
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ORDER DENYING MOTION TO ALLOW LATE FILED CLAIM Joan Feeney, a creditor, filed a proof of claim on October 9, 1985 in this chapter 7 case. The motion to permit the late filing of this claim was heard on December 23. The case was filed on January 15, 1985 by Joan Feeney as president of the debtor corporation. On February 11, this court entered an order in accordance with the Rules and the Code setti...
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ORDER ON MOTION FOR SUMMARY JUDGMENT In 1974 the Florida Legislature established a special taxing unit known as the Crews Lake Road and Bridge District (District). The District was established for the purpose of creating a tax base in order to service a bond issue sold to the public. The funds derived from the sale of the bonds were to be used for the construction of roads and bridges and improve...
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MEMORANDUM OPINION AND ORDER The Plaintiffs, James A. and Frances A. Hasbrouck, commenced the instant adversary proceeding seeking recovery of a real estate down payment alleged to be non-dis-chargeable by virtue of section 523(a)(2)(A) of the Bankruptcy Code. The case was tried on November 20, 1985. The only remaining Defendant is Robert L. Valeu, the other Defendants having been dismiss...
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MEMORANDUM OPINION On October 28, 1985 the court held a hearing to value the security interest held by the Federal Land Bank (FLB) in the farm and improvements owned by the debtors. The debtors were represented by Laura J. Walker and FLB was represented by Bradley O. Baker. The parties disagree upon the standard to be followed by the court in determining the value of the security interest hel...
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FINAL JUDGMENT OF DISMISSAL OF ADVERSARY ACTION This is an action brought by the plaintiff insurance company for a declaratory judgment to the effect that it is not liable on liability insurance policies issued to the debtor Titan Energy, Inc., and for a decree rescinding those policies. It is alleged that the plaintiff issued seven “products guarantee liability insurance policies” to the...
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MEMORANDUM The issue presented is whether a mul-tiemployer pension plan’s withdrawal liability claim is entitled to administrative expense priority. On peculiar facts and for the reasons stated below, the withdrawal liability claim must be apportioned between pre- and post-petition liability. The post-petition portion of the claim, when ultimately fixed in amount, may be entitled to admin...
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ORDER DENYING PLAINTIFF’S “MOTION FOR PARTIAL RECONSIDERATION OF COURT’S ORDER OF DECEMBER 17, 1985, GRANTING JUDGMENT OF DISMISSAL WITHOUT PREJUDICE TO STATE COURT PROCEEDINGS” Formerly, on December 17, 1985, this court dismissed the plaintiff’s complaint for a decree of nondischargeability with respect to alleged obligations in the nature of alimony, support or maintenance without *512 prej...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion To Dismiss and the Motion for Relief From Stay filed by Barbara Baum-gartner, the Court’s Order to Show Cause On Dismissal or Conversion, and the Hearing on the Debtor-In-Possession’s Disclosure Statement. With the exception of the Disclosure Statement, the Court conducted a Hearing on all of these matters. At ...
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*518 MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Complaint filed by the Debtor-In-Possession in the above entitled adversary action. The Court conducted a Pre-Trial Conference, at which the parties agreed that the issues addressed by the Complaint are solely issues of law, and that the Court may render a decision in this case based upon the written arg...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO CLAIMED EXEMPTIONS This cause came on for hearing on November 18, 1985 before this court on trustee’s objection to claimed exemptions. The trustee submits that the exemptions claimed by debtor exceed the exemptions allowed under Article X, Section 4, Florida Constitution and Chapter 222, Florida Statutes. Debtor contends that the scheduled items are exe...
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MEMORANDUM DECISION AND ORDER This adversary proceeding concerns a substantial loss of stored grain suffered by the debtor-plaintiff, Howard A. Krupke (“Krupke”) which led to his bankruptcy on June 6, 1984. Prior to his petition in bankruptcy Krupke had retained the services of the defendant Richard F. Lindemann (“Lin-demann”), a certified public accountant, at the behest of Merchant’s Ba...
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DECISION The court is presented with the issue of whether to return to Waupaca County Circuit Court, a Wisconsin state court, a pending mortgage foreclosure action which was previously commenced in that court by Marine Bank Appleton, N.A. f/k/a Firstar Bank, National Association (“Marine Bank”) against Mill-Craft Building Systems, Inc. (“debtor”) and eight other non-debtor defendants. The...
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ORDER This Order shall constitute the Court’s findings of fact and conclusions of law. This matter is before the Court on its own Order to Show Cause why the Debtors’ chapter 7 proceedings should not be dismissed pursuant to 11 U.S.C. § 707(b) as a substantial abuse of the provisions of that chapter. The Debtors were represented at the hearing by Dennis Breen. Creditor Tucson Realty and Trust...
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REASONS FOR JUDGMENT I. Jurisdiction of the Court This is a proceeding arising in a case under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Complaint to Determine Dis-chargeability of Debt in the above entitled adversary action. The Court conducted a Pre-Trial conference in this case, at which the parties expressed their intent to contest an issue of law which stands as a threshold question in the resolution of this case. That issue involves the question ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motions For Summary Judgment filed by Defendant Kendall’s Transport Refrigeration, Inc. (hereinafter Kendall), and by the Plaintiff against Kendall. The parties have each submitted arguments as to the merits of these motions and have had the opportunity to respond to the arguments made by opposing counsel. The Court has revie...
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ORDER DENYING PLAINTIFF’S MOTION TO ALTER OR AMEND JUDGMENT Formerly, on December 3, 1985, this court rendered its findings of fact, conclusions of law and final decree and judgment declaring the defendant’s indebtedness to plaintiff to be dischargeable in bankruptcy, 56 B.R. 50. The principal finding then made by the court was that the defendant, in issuing a warranty deed on October 8, 1979, ...
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MEMORANDUM OPINION Northern Specialty Sales, Inc. (hereinafter referred to as “NSS”), the debtor herein, filed a complaint alleging that the above-named defendants were recipients of a bulk sale, notice of which was not recorded as required by California’s commercial code. NSS filed its petition in bankruptcy on December 30, 1983. The complaint which commenced this adversary proceedi...
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MEMORANDUM DECISION AND ORDER Donald William Martinson and Carol Joan Martinson (“Martinsons”) filed for relief under chapter 7 of the Bankruptcy Code on June 24, 1985. The Martinsons elected exemptions under Wisconsin law. Mr. Martinson claimed a retirement account, the Emjay Master Profit and Retirement Plan (“the plan”), as exempt under section 815.18(31) of the Wisconsin Statutes. The plan was...
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OPINION AND ORDER Following a hearing held on November 12, 1985 this Court, albeit reluctantly and with serious reservations, provisionally denied a motion by Walter Kendall et al. (“the Movants”)1 to transfer these two related cases immediately to the bankruptcy court in California having proper venue. This Court’s oral ruling provisionally denying the motion at that time was based largely upon t...
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OPINION With respect to a number of claims filed in this case, the Trustee’s notice of objection to the claim was mailed by first-class *567 mail to the claimant’s last known address but was returned by the U.S. Postal Service as being undeliverable. In each such instance, the Trustee has filled a “motion for entry of order” and has submitted a form of order sustaining the Trustee’s objection...
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MEMORANDUM OPINION (As modified and reissued January 31, 1986) This cause comes to be heard upon the Motion of FIRST NATIONAL BANK OF SCHILLER PARK (“bank”) to Dismiss debtor’s Bankruptcy proceeding, or, in the alternative, to grant Relief from the Automatic Stay. Following the hearing held, Findings of Fact and Conclusions of Law have been separately entered. This Memorandum refers ...
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MEMORANDUM OPINION ON FEES The court previously by Order entered December 31, 1985 in this Chapter 11 case has allowed final fees and expenses to various attorneys and other parties involved in this Chapter 11 proceeding. Two of the fee applications involve certain legal issues which require further detailed elaboration which is now provided in this opinion. The fee requests in quest...
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MEMORANDUM OPINION Upon the Motion for Re-conversion of Coleman-Adams Construction, Inc. (“Coleman-Adams”), an unsecured creditor of William A. Baber, a Debtor herein (the “Debtor”), the Court is called upon to determine whether cause exists, pursuant to 11 U.S.C. § 1307(c), to re-convert this case to a case under Chapter 7. On or about June 8, 1983, the Debtor sold to Coleman-Adams a diesel ...
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OPINION AND ORDER The Debtor has filed two motions, one under 11 U.S.C. § 522(f) to avoid the lien held by Fleet Finance Co., Inc./Credico Financial, Inc. (“Fleet”) on her household furnishings and goods and on her car, and the other under 11 U.S.C. § 722 to redeem the same property not only from Fleet’s lien but from all other lienors, “whether known or unknown.” Fleet, the only party se...
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MEMORANDUM OPINION This is an action instituted by a creditor to except a state court judgment from discharge pursuant to section 523(a)(6) of the Bankruptcy Code. 11 U.S.C. § 523(a)(6) (Supp. II, 1984). Mrs. Harriet Ross owns a single family residential home in Royal Oak, Michigan. In June of 1978, she rented the home to Mr. Frank DeVier (debtor) on a month-to-month basis, and he ag...
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OPINION The issue for decision in the case at bench is whether the “total cost method” is the proper measure of damages under a breach of a contract to supply parts for a fire sprinkler system. Due to a failure of proof, as explained below, we conclude that it is not the-proper measure of damages in the case before us. We summarize the facts of this case as follows:1 Southeastern Sprinkler Company...
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MEMORANDUM DECISION The interesting issue presented in this proceeding is whether an agreement to settle a pre-filing state court negligence action is a reaffirmation agreement subject to the requirements of 11 U.S.C. § 524(c), or is a post-filing agreement for new consideration. The court concludes that the agreement is a reaffirmation which does not meet the requirements of Section 524(...
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DECISION Beker Industries Corp. and Beker Phosphate Corporation (the “Debtors” or “Beker”) seek a preliminary injunction preventing the continuation of an administrative proceeding (the “Proceeding”) in Tallahassee, Florida. The Proceeding was scheduled to be heard on January 7, 1986 before the Florida Land and Water Adjudicatory *615 Commission (the “Commission”) which is co...
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DECISION AND ORDER ON MOTION FOR A STAY PENDING APPEAL Beker Industries Corp. and Beker Phosphate Corporation (the “Debtors” or “Beker”) have filed a notice of appeal to the United States District Court for the Southern District of New York from the decision and order dated February 6, 1986, 57 B.R. 611, as corrected by an errata order dated February 11, 1986 (familiarity with which is as...
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MEMORANDUM AND ORDER The adversary defendant, Ford Motor Credit Co. (“FMC”), has filed a motion requesting the Court to reconsider its Memorandum and Order of October 18, 1985, In re Johnson, 53 B.R. 919 (Bankr.N.D.Ill.1985). This dispute centers around the debtor’s attempt to recover $203.68 in wages held by his employer pursuant to a wage garnishment in favor of FMC by using ...
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OPINION The legal point we are asked to decide in this case is whether under a chapter 13 plan a debtor must pay “interest” on ar-rearages arising from a secured debt to the extent that those arrearages are attributable to interest on the principal debt when the loan agreement does not provide for such interest. The issue arises on the debt- or’s objection to a proof of claim. Under the reasoni...
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DECISION This case was tried on October 22, 1985 upon the complaint of William and Daphne Taylor (“plaintiffs”) seeking a determination that damages to their home resulting from certain work performed by the debt- or, William Otto Kaufmann (“defendant”), be declared non-dischargeable pursuant to either § 523(a)(2)(A) or § 523(a)(6) of the Bankruptcy Code. 1 FACTS On June 1,1980, the parti...
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MEMORANDUM OPINION AND ORDER On December 5, 1985, an Involuntary Petition was filed by Master Feeds, Inc.; Thunderbird Ranch, Inc.; M & H Farms, *650 Inc.; David Rock; and Purina Mills, Inc. requesting that the Court order Chapter 7 relief against the alleged Debtor, Dakota Crackin’, Inc. In its Answer, Dakota Crac-kin’ denies the nature and amount of the Petitioners’ claims ...
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MEMORANDUM This matter came before the Court for a pre-trial conference on the trustee’s Complaint to avoid the attachment obtained by International Multifoods Corporation hereinafter (“International” or “the defendant”), pursuant to 11 U.S.C. § 547(b). The parties stipulated to the filing of an agreed statement of facts and accompanying mem-oranda of law. Based upon a review of the stipu...
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MEMORANDUM OPINION AND ORDER The issue before the Court is whether Ashland Finance Company and its surety should be released from liability and obligation on a bond. The Debtor, Thomas W. Henderson, filed a Chapter XI petition in this Court on February 1, 1979, later converted to Chapter XIII and his wife, Ida I. Henderson, was added as a co-debtor. On October 13, 1983, 40 B.R. ...
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MEMORANDUM DECISION The trustee’s motion for turnover of funds requires the Court to determine what interest, if any, the debtor has in a personal injury judgment rendered post petition. The facts are undisputed. Debtor Patricia Richards was injured in an automobile accident with one Theodore Wisler in Las Vegas, Nevada in May of 1980. In February, 1981, the debtor filed a personal i...
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MEMORANDUM DECISION This matter is before the Court on the United States Trustee’s objection to the *666 debtors’ application for leave to retain professional counsel. Oral arguments were heard by the Court in Pierre, South Dakota, on July 10, 1985, and the parties later submitted written memoranda. The issue is whether Donald E. Covey, a nephew of the debtors, is disqualified under the Cod...
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MEMORANDUM OPINION On July 31, 1984, H. Huntly Hersch filed a petition for relief under Chapter 7 of the Bankruptcy Reform Act of 1978 (“the Code”), and listed as exempt from the bankruptcy estate his interest in a testamentary trust created by his deceased father. 1 Warrenton Production Credit Association (“Warrenton”), taking issue with the debtor’s characterization of the tr...
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MEMORANDUM DECISION The Motion of Phillip & Kelley, Ltd. to Enforce Attorney’s Lien requires the Court to determine whether the movant’s statutory attorney’s lien is avoidable by the bankruptcy trustee. The trustee’s Petition to Abandon Balance of Claim of Debtor requires the Court to determine whether the trustee may abandon a cause of action after a partial settlement has been reached. ...
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MEMORANDUM AND DECISION The debtors brought a motion to avoid the fixing of a judicial lien under the authority of 11 U.S.C. § 522(f) before this Court on December 2, 1985. The motion specifically seeks to avoid a $139,469.77 judgment lien by Dow Chemical Company against the debtors which attached to the debtors’ personal residence. Dow objects to the avoidance of the lien for any amount ...
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DECISION AND ORDER DENYING RELIEF FROM AUTOMATIC STAY Carpenter Plastering Co. (“Carpenter”) and Joseph E. and Rita Kowalski (“Kowal-ski”), the moving parties, have brought two separate but related automatic stay motions before this court. Their legal focus is a relatively recent and controversial decision of the Court of Appeals for the Third Circuit. See In re M. Frenville Co., In...
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MEMORANDUM OPINION FACTS The defendants filed a motion to dismiss the plaintiffs complaint objecting to discharge under 11 U.S.C. § 727. The defendants assert and the record confirms that the plaintiffs complaint was not filed nor was an extension of time obtained within 60 days of the first date set for the meeting of creditors pursuant to 11 U.S.C. § 341(a). The defendant debtors contend th...
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DECISION DENYING PLAINTIFF’S COMPLAINT PURSUANT TO 11 U.S.C. § 523(a)(2)(A) AND (a)(6) This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(I), in which the plaintiffs, Carlton E. and Arline Z. Shafer, seek to have a debt owed to them by the defendant-debtor, William R. Wintrow, Jr. declar...
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MEMORANDUM OPINION A major purpose of the Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101-151326 (“the Code”) is to give the honest debtor a fresh start. The question presented here is whether the honest debtor can also obtain a clean credit slate if he voluntarily satisfies obligations previously discharged in bankruptcy. Larry Bruce Whitener (“Whitener”) filed a petition for relief under ch...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court on the motion of Airlines Reporting Corporation (ARC) for the Court to determine whether the automatic stay provisions of 11 U.S.C. 362 are applicable and for an order granting relief from stay to allow the movant to proceed with foreclosure proceedings on a residence co-occupied by the Debtor, Warren Lambert. Said property i...
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ORDER Kenneth Henry Ohning and Karen Jean Ohning are chapter 13 debtors who have brought an adversary proceeding due to Schneider National Transcontinental, Inc.’s (Schneider) collection of a pre-petition debt from property of the estate which consists of Ohnings’ post-petition earnings. The matter is before the court on cross motions for summary judgment; it was taken under advisement October ...
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ORDER GRANTING DEBTOR’S MOTION FOR PRELIMINARY INJUNCTION AND ENJOINING DEFENDANT This matter came on for hearing on January 21, 1986, on the motion of debtor, A. Dan Chisholm, Inc., for a preliminary injunction enjoining defendant, B.P. Oil, Inc., Gulf Products Division, from taking any action to terminate its leased franchise pending trial of the issues on merits. Debtor is in possession of...
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MEMORANDUM DECISION and ORDER The matter before the Court is the Motion of Kimmel Construction, Inc. (Kimmel) for an order allowing administrative claim pursuant to Bankruptcy Code § 503(b). A final hearing on the merits was conducted on November 19, 1985, and the issues submitted to the Court for decision. For the reasons set forth below, Kimmel’s Motion is denied. I The debtor...
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ORDER Before the Court is the motion of Defendant, United States of America, to dismiss Count I of a complaint filed by Debt- or, Amtol Corporation, and Robert A. Leed-ers (Leeders), who seek an injunction against the Internal Revenue Service (IRS). The parties submitted the matter on briefs. On consideration the Court finds: Count I of the complaint requests that the IRS be enjoined...
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MEMORANDUM OPINION The question before the court is the trustee’s objection to the debtor’s claim of exemption under Iowa Code § 627.6(9)(e) of his “Keogh Plan” retirement rights valued at $36,000.00. More precisely, the debtor has scheduled as an asset under schedule B-2(v) his Keogh Plan as “Equitable Or Future Interest, Life Estates And Rights Or Powers Exercisable Before The Benefit O...
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*733 MEMORANDUM OF DECISION Plaza Bonita Developers, landlord of Ramon and Xóchitl Galvan doing business as Casa Bonita (“Galvan”) has moved for an order compelling Donald Sutherland (“Sutherland”), the Chapter 7 trustee, to immediately pay rent and for other relief. Galvan filed a Chapter 7 proceeding on June 7, 1985. On June 12, 1985, Sutherland was appointed interim trustee. On July 9, 1...
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MEMORANDUM AND ORDER This matter comes to be heard on the motion of First National Bank of Joliet (“Bank”) to terminate or modify the automatic stay pursuant to 11 U.S.C. § 362 and to prevent the use of certain cash collateral pursuant to 11 U.S.C. § 363. On January *735 22, 1985, Anthony Peter Lorenz, Joseph Andrew Lorenz, and Robert Dean Lorenz, a partnership d/b/a Lorenz Brothers Farm (“de...
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MEMORANDUM OPINION AND ORDER The issue before the Court is whether the debt to Creditway of America should be *738 held nondischargeable under 11 U.S.C. § 523(a)(6). Briefly stated, the facts appear as follows. On April 8, 1985, the Debtor, Richard Anthony Brubaker, entered into a retail installment sales contract and security agreement with Comfort Rest Waterbeds for th...
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MEMORANDUM This is an appeal from a decision of the bankruptcy court involving funds which were received by the debtor as proceeds of an insurance policy on the life of her husband. The bankruptcy judge held that said funds were liable for the debts of the debt- or and that 11 U.S.C. § 522(d)(11)(C) does not exempt the life insurance receipts from the claims of the creditors. The cou...
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MEMORANDUM OPINION This appeal is from the June 8, 1984, Bankruptcy Court order confirming Sweet-water’s Chapter 11 Plan of Reorganization, 40 B.R. 733. It raises two related issues: (1) Whether a homeowners’ association that has no direct claim against the debtors’ estate has standing on appeal to challenge a plan’s treatment of the association’s members; and (2) Whether a plan of reorganizati...
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MEMORANDUM OPINION This is an appeal from the June 8, 1984, Bankruptcy Court order confirming Sweet-water's Chapter 11 Plan of Reorganization. It raises a single issue: whether a non-voting, non-objecting creditor who is the only member of a class is deemed to have accepted the plan for purposes of 11 U.S.C. § 1129. 1 On November 2, 1984, this court heard oral arguments on th...
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MEMORANDUM AND ORDER DENYING MOTION TO WITHDRAW REFERENCE TO BANKRUPTCY COURT This matter is before this Court on a motion for mandatory withdrawal, pursuant to 28 U.S.C. § 157(d), of this Court’s reference to the bankruptcy court of some contingent, unliquidated claims filed in the bankruptcy court against Baldwin-United Corporation and D.H. Baldwin Company. 1 The moving parti...
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MEMORANDUM AND ORDER This matter is before this Court on appeal, pursuant to 28 U.S.C.A. § 158(a) (West Supp.1985), from a final order of the United States Bankruptcy Court for the Southern District of Ohio, Western Division. The order appealed from was entered July 30, 1985 in Adversary No. 1-85-0251, granting the motion of Baldwin-United Corporation and D.H. Baldwin Co. (collectively “d...
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ORDER ON APPEAL FROM ORDER OF BANKRUPTCY COURT This appeal from an order of the Bankruptcy Court was appealed to this court pursuant to 28 U.S.C. § 1334(b). This appeal concerns a ruling by the Bankruptcy Court’s order for summary judgment which held that the creditors had legally effective notice through the actual knowledge of their attorney. The court stated that the judgment debt was discha...
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MEMORANDUM This case is before the court on the motion of Harley Hotels, Inc. and Dutch Pantry, Inc. (hereinafter referred to as Harley, Landlord, or the Moving Party) seeking abstention from the exercise of jurisdiction over certain state law claims or, alternatively, withdrawal of this court’s reference to the Bankruptcy Court of those claims. Rain’s International, Ltd. (also referred t...
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Memorandum This cause is before the court on the motion of defendant D. James Bader to dismiss pursuant to Rule 12(b)(7), Fed.R. Civ.P., for failure to join an indispensable party. He contends that the allegations in this suit are identical in all material respects to those in a bankruptcy adversary proceeding also pending in this court, except that the bankrupt, Thomas A. Eustace, has not been n...
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MEMORANDUM AND ORDER This cause is before the Court on appeal from an order of the United States Bankruptcy Court for the Eastern District of Missouri 1 pursuant to 28 U.S.C. § 158(a). Introduction Appellee 905 International Stores, Inc. (905) is a retail liquor chain with stores throughout the St. Louis, Missouri area. The company is currently in Chapter II reorganization proceedings. ...
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ORDER ON APPEAL FROM UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF NEW HAMPSHIRE Defendant R. Richard Riso appeals from the order of the United States Bankruptcy Court, District of New Hampshire, 48 B.R. 244, denying his motion for reconsideration of the denial of his motion to dismiss plaintiff Donald Francis’ complaint objecting to discharge. This court has jurisdiction pursuant to...
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ORDER The debtor filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code in February, 1984. The bankruptcy court set the meeting of creditors pursuant to section 341 of the Bankruptcy Code for April 26, 1984. The order also set May 31, 1983 as the last day for filing a complaint to determine dischargeability of a debt pursuant tó section 523 of the Code. 11 U.S.C. § 5...
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MEMORANDUM AND ORDER In April of 1985, James R. Mattingly, a self-proclaimed whistleblower, instituted a civil action in the state superior court claiming in substance that his employer, Newport Offshore, Ltd. (NOL), a defense contractor, had unlawfully discharged him in retaliation for Mattingly’s attempts to halt creative accounting practices whereby NOL, in the plaintiff’s estimation, ...
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MEMORANDUM OPINION AND ORDER Hendon Pools of Michigan, Inc. (“Hen-don”) and Lifetime Pools, Inc. (“Lifetime”) filed bankruptcy petitions under Chapter 11 of the Bankruptcy Code on February 8, 1982, which were later converted to proceedings pursuant to Chapter 7 of the Bankruptcy Code. On January 30, 1983, the trustee in bankruptcy filed a ten-count complaint against Debbie Golds Lefton, Sidney ...
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OPINION Phoenix Institute of Technology (P.I.T.) appeals the bankruptcy court order confirming the Chapter 13 plan of Dennis and Cathy Klein (debtors). P.I.T. holds an unsecured claim based on a National Direct Student Loan to Dennis Klein. P.I.T. argues that the plan should not be approved because it provides for less than 100% repayment of its loan. We review de novo the bank...
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57 B.R. 821 (1986) In re KROEGER PROPERTIES AND DEVELOPMENT, INC., Debtor. Appeal of Francis W. ZILAFF, Real Party in Interest. BAP No. EC-85-1056-MEAs. United States Bankruptcy Appellate Panels of the Ninth Circuit. Argued and Submitted September 20, 1985. Decided January 21, 1986. Francis W. Zilaff, Zilaff & Zilaff, Sacramento, Cal., for appellant. Before MEYERS, ELLIOTT and ASHLAND, Bankru...
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I On August 28, 1984, the appellants Walter T. Hanson, Donald F. Rau and Ross H. Buchwalter (“Appellants”) filed a complaint naming the Debtor, Curry and Soren-son, Inc. (“Debtor”) and its President Kenneth R. Finn (“Finn”) as defendants. In this complaint the Appellants seek to void the Debtor's issuance of 75,000 shares of its capital stock to Finn, claiming it was a fraudulent transfer ...
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Crest Mirror and Door Company, the debtor in possession, appeals an order denying its application to employ and pay a retainer to the Greeley Consultant Group, a financial consulting service. This appeal raises two issues. May the bankruptcy court require a noticed hearing on an application to employ a professional under 11 U.S.C. § 327(a)? Does 11 U.S.C. § 327(a) permit the bankruptcy cou...
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ORDER Upon consideration of the Debtors’ “application to extend discharge hearing date,” it is, on June 12, 1985, ORDERED that the Debtors’ discharge hearing is continued until August _, 1985, at_m., and it is further ORDERED that the Debtors’ request (contained in their above-described application) that this Court “extend the statute of limitations [for filing complaints objecting to disch...
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OPINION The plaintiff trustee in bankruptcy brings this adversary proceeding to void the transfer of inventory and fixtures owned by the Debtor, Villa Roel, purportedly made in noncompliance with the District of Columbia’s Bulk Transfer Statute. D.C.Code Ann. § 28:6-101 et seq. (1981). Upon consideration of the plaintiff’s motion for summary judgment and opposition thereto, and...
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ORDER This matter came on before the Court on the Motion of the Official Non-Union Labor and Pension Committee (hereinafter the Non-Union Committee) for leave to intervene in the contested matters involving the adjudication of non-union employee claims against this estate, including inter alia, the Debtors’ request for estimation of the total value of such claims, pursuant to 11 U.S.C. § ...
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ORDER GRANTING DEBTORS’ MOTION TO ESTIMATE ALL CONTINGENT UNLIQUIDATED EMPLOYEE CLAIMS FOR PURPOSES OF CHAPTER 11 PLAN CONFIRMATION PURSUANT TO SECTION 502(c) OF THE BANKRUPTCY CODE This matter came on before this Court on the Debtors’ Motion to Estimate all contingent or unliquidated employee claims for purposes of the Chapter 11 Plan Confirmation pursuant to § 502(e) of the Bankruptcy Code....
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FINDINGS OF UNCONTESTED FACT AND CONCLUSIONS OF LAW WITH RESPECT TO UNION CLAIMS FOR WRONGFUL DISCHARGE FINDINGS OF UNCONTESTED FACT 1. The docket in this case reflects that, as cited below, on September 24, 1983, Continental Air Lines, Inc. and Texas International Airlines, Inc. filed petitions for reorganization under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 110...
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MEMORANDUM OPINION AND ORDER This cause was brought on for hearing before this Court on a Complaint by Swiss Air Transport Company, Ltd. seeking a declaratory judgment that its rights in five DC-9-32 aircraft owned by TXIA Holdings Corporation, a debtor in possession in the consolidated Continental filings, are subject to the provisions of section 1110 of the Bankruptcy Code, and on a subsequen...
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OPINION Came on for consideration the motion filed by Grenada Bank, Bank of Shaw Branch, seeking relief from the automatic *859 stay, as well as, the abandonment of certain real and personal property; response to said motion filed by the Debtors; all parties being represented before the Court by their respective attorneys of record; the said parties having presented oral test...
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*864OPINION On consideration of the complaint filed by the Plaintiff, Barrister’s Land Company, Inc., hereinafter referred to as Barrister’s, against the Defendants, Merchants & Farmers Bank of Columbus, Mississippi, and National Bank of Commerce of Mississippi, hereinafter respectively referred to as M & F Bank and NBC; answers to said complaint filed by the Defendants; on consideration of the m...
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DECISION ON DEBTOR’S MOTION TO ASSUME REAL ESTATE LEASE At Cincinnati, in said District, on the 4th day of December, 1985: Debtor in this Chapter 11 case performs manufacturing operations for its customers on metal parts. Thus, it does shot-peening of metal parts and is also equipped to do certain machining operations. Debtor’s operations are housed in a building in the community of ...
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ORDER This matter is before the Court on its own Order To Show Cause issued Sua Sponte on September 16, 1985, directing the Debtor to appear and show cause why his Chapter 7 petition should not be dismissed pursuant to the substantial abuse provision of section 707(b) of the Bankruptcy Code. A hearing pursuant to said Order was held on November 12, 1985. 1. The Debtor’s case was commenced b...
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OPINION AND ORDER Before the Court is the Trustee’s motion and the defendants’ cross-motion for summary judgment. The Trustee’s complaint alleges that the defendants, formerly the debtor’s landlords, received a voidable preferential transfer of $16,480.68 from the debtor, or alternatively, that the transfer of monies to the defendants was for less than reasonably equivalent value in excha...
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MEMORANDUM OPINION I. Introduction These two adversary proceedings were consolidated for trial. In Janis v. Bidlofsky, George and Mary Janis allege that the debt owed to them by the debtors, Herbert and Sharon Bidlofsky, is non-dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). In Borock v. Bidlofsky, Paul Borock, the trustee, alleges practically every cause of action conceivable under...
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OPINION By agreement of all parties, this proceeding is before the Court on the claim of Hibernia National Bank in New Orleans, hereinafter referred to as Hibernia, to the proceeds of a sale of 91,685 gallons of fuel formerly aboard the M/V UNITED STATES; said claim being disputed by the above captioned Debtors and the Debtors’ unsecured creditors committee; all of said parties having consented...
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REASONS FOR JUDGMENT I. Jurisdiction The following jurisdictional rulings were made on February 7, 1985, and have not been appealed. This is a matter within the jurisdiction of the United States District Court for the Middle District of Louisiana under the authority of 28 U.S.C. § 1334(b) and (d). The Court ruled that this is a core matter pursuant to 28 U.S.C. § 157(2)(A) and (E) si...
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ORDER This matter is before the court on the debtor’s Complaint for Injunctive Relief filed on April 29, 1985. A pretrial conference was held on June 19, 1985. The Court was advised at that time that the parties would stipulate the facts. Following a briefing period, the matter was taken under advisement on October 18, 1985. FACTS Draggoo Electric Company, Inc., (Drag-goo) filed...
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ORDER This matter came before the Court for hearing November 5, 1985, on several motions of the parties. One is Norwest Bank of Hastings’ (Norwest) motion to dismiss the adversary proceeding filed by Debtor seeking declaratory judgment denying post-petition interest and attorney’s fees on Norwest’s prepetition unsecured claim in the bankruptcy case. A second, is Nor-west’s motion, in the altern...
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DECISION DENYING MOTION TO REOPEN AND DECLARING DEBTS NONDISCHARGEABLE On July 15, 1985, Robert E. Gray filed a motion to reopen his bankruptcy case for *928 the purpose of amending Schedule A-3 1 to include two unsecured creditors, John DiStefano and Thomas Scotti. DiStefano and Scotti object to the reopening, and to being added as creditors. After hearing on Dece...
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ORDER In the within case the United States of America, Department of the Treasury, Internal Revenue Service (IRS) filed a supplemental claim for $281,614.45 to which the Debtor, The Overly-Hautz Company (OHC) has objected. The parties submitted the matter on stipulations, oral argument and briefs. The parties agreed to the following stipulation of facts: “1. This Court has subje...
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DECISION & ORDER On December 3, 1985, Kravco, Inc. (hereinafter “landlord”) moved for an order granting relief from the automatic stay, pursuant to 11 U.S.C. § 362, to allow the landlord to pursue eviction proceedings against the debtor in State court. The landlord alleges that the lease in question was terminated by its terms prior to the commencement of this case. The debtor asserts tha...
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DECISION & ORDER On November 20, 1985, Robert Buchaki-an (hereinafter “landlord”) moved for an order compelling the debtor to assume or reject the commercial lease in question under 11 U.S.C. § 365(d)(2), or, in the alternative, for an order directing the debtor to pay its post-petition rent obligations pursuant to 11 U.S.C. § 365(d)(3). 1 The debtor has cross-moved for an orde...
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Decision and Order on Motion to Reargue An adversary proceeding seeking turnover of property does not often yield as many interesting facts as have surfaced in the instant chapter 11 case. Here, the tenant under a lease filed two sequential chapter 11 petitions. The lease in at least some form survived the first case by fortuitous operation of law; in the second case, the former debto...
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*954 DECISION AND ORDER GRANTING DEBTOR-MOVANTS’ MOTION TO AVOID LIEN This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B) and (K), in which the debtor-movants, Thomas G. and Elke G. Anderson, seek to avoid the judicial liens obtained by creditor-respondents, Dayton Plumbi...
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ORDER The plaintiff/debtor, Rosetta M. Wright (“Wright”), initiated this adversary proceeding on March 25, 1985, by filing a complaint to determine the dischargeability of a debt. The debt in question is the result of a default judgment obtained by F.C. McIntyre (“McIntyre”) against Wright in the amount of $326,000.00 plus costs. The judgment was entered on August 8, 1979 in the Superior ...
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DECISION OF INTERPLEADER ACTION The Court is fully aware that the trial court may not blindly accept the proposed findings of fact and conclusions of law of the prevailing party. United States v. El Paso Natural Gas, 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964). However, when the proposed findings are consistent with the evidence and the conclusions are agreeable to t...
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MEMORANDUM OPINION This matter was tried on stipulation as to the facts and memorandums of law submitted by the respective parties without the taking of any further testimony or evidence. The question at issue is whether the plaintiff trustee in bankruptcy can succeed to the debtor’s rights to receive certain corn in storage under a federal agricultural program known as the Payment-In-Kin...
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DECISION ON OBJECTION TO CLAIM OF WESTCHESTER HUDSON FUEL CO. The Chapter 11 debtor, Felix Contracting Corp’n (“Felix”), objects to the portion of a claim filed by Westchester Hudson Fuel Co., Inc. (“Westchester”) relating to finance charges on diesel fuel and gasoline sold to the debtor in connection with a construction job performed by the debtor. Westchester contends that the finance charges i...
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Memorandum Decision In the context of a motion for extraordinary relief, this Court is presented with the *982 so-called banker’s dilemma. The bank, a creditor of this Chapter 11 debtor’s, has moved ex parte for relief from stay and for an order prohibiting the use of cash collateral. The bank asks us to prohibit the debtor from drawing on its checking accounts with the bank,...
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MEMORANDUM OPINION AND ORDER REGARDING APPLICABILITY OF 11 U.S.C. § 1111(b)(1)(A) TO UN-DERSECURED, NON-RECOURSE DEFICIENCY CLAIMS Between March 25, 1985 and May 31, 1985, ninety-five related general and limited partnerships (“the Project Partnerships” or “Debtors”) filed voluntary petitions in this Court seeking protection under Chapter 11 of the Bankruptcy Code. Each partnership owned e...
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MEMORANDUM OPINION The Peoples Bank & Trust of Alpena filed this involuntary petition against Bette Mae Lough pursuant to 11 U.S.C. § 303 arising from two debts which the bank claims that Mrs. Lough owes to it. For the reasons stated in this memorandum opinion, 1 the Court concludes that there is a bona fide dispute concerning the bank’s claim, and that therefore the involuntar...
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DECISION Pursuant to the adversarial procedure charted by Part 7 of the Rules of Bankruptcy Procedure, Rules 701 et seq., the trustee (hereafter “plaintiff”) on August 16, 1985, served upon the above-named defendants a complaint encompassing two separately stated and numbered causes of action. The gravamen of the first cause of action seeks to avoid the transfer (assignmen...
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MEMORANDUM OF DECISION In July of 1985, plaintiff Enviro-Scope Corporation, a Chapter 11 Debtor in Possession, filed a complaint in bankruptcy court against Westinghouse Electric Corporation, (“Westinghouse”). Counts II and IV of the complaint seek the recovery of alleged preferential transfers made by the plaintiff to Westinghouse prior to the institution of the Chapter 11 bankruptcy proceedin...
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OPINION Excelsior Truck Leasing Co., Inc. (“Excelsior”) appeals, under Bankruptcy Rule 8001(a), from a decision of the United States Bankruptcy Court for the Eastern District of Pennsylvania discharging the debt owed to it by the appellee, Edmund M. Bernat, III. Because I find that § 727 of the Bankruptcy Code (“Code”) may prevent discharge of the debt, I am remanding this case to the ban...
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MEMORANDUM This is an appeal from the bankruptcy court which ordered the sale of certain real estate belonging to the debtors. This Court has jurisdiction to hear the appeal under 28 U.S.C. § 158(a). Alfred F. Furst t/a The Century 21 Alfred F. Furst Real Estate Bargain Mill and Joanne M. Furst, h/w, Individually and Jointly (“Debtors”) filed a voluntary bankruptcy petition under Cha...
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MEMORANDUM Appellant William C. Cox, Inc. (“Cox”) appeals from an order of the Bankruptcy Court, 53 B.R. 81 (1985). This court has jurisdiction of the appeal pursuant to 28 U.S.C. section 1334(a). Under Rule 8013 of the Bankruptcy Code, the appropriate standard of review is that the findings of fact of the Bankruptcy Court will not be set aside unless clearly erroneous. Bankruptcy Rule 80...
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