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Opinions in br Volume 85

MEMORANDUM AND ORDER Whereas plaintiffs have moved pursuant to F.R.Civ.P. 56(a) for summary judgment on Count II of their Complaint alleging conversion and whereas defendant has moved pursuant to F.R.Civ.P. 56(b) for the same, this court now determines whether defendant is liable to plaintiffs for conversion. Jurisdiction and venue is proper before this court under 28 U.S.C. secs. 1332 & ...
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MEMORANDUM OF DECISION AND ORDER ON MOTION FOR INTERIM FEES UNDER CODE § 506(b) These companion cases present the novel question of whether interim compensation is allowable under Code § 506(b). For the reasons that follow, I conclude that it is not. I On April 2, 1987, National Computer Communications Corporation and its affiliate, Digital Associates Corporation, (collectively ...
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MEMORANDUM AND ORDER This is an appeal from a judgment of the Bankruptcy Court granting a motion of the Trustee in bankruptcy that requires the payment of $19,893.97 by Chicago Title Insurance Company to the estate of the debtors. For the reasons that follow, the judgment of the Bankruptcy Court is reversed. I. In November 1984, Karl and Marcia Mos-kowitz (the “Debtors”) filed a...
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MEMORANDUM AND DECISION A creditor, Belle Epstein, has moved the Court for an Order directing the Chapter 13 Trustee to disburse surplus funds in his possession. This case was commenced on October 29, 1982, by the filing of a Chapter 13 petition and Plan. The filing was aimed, principally, at staving off foreclosure of a mortgage against the Debtor’s residence. By Order of February 2, 1983, t...
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MEMORANDUM DECISION DENYING REQUEST FOR APPOINTMENT OF GENERAL PARTNERS’ COMMITTEE On March 24, 1988, this court signed an order to show cause fixing a hearing on the motion of certain partners (the “Carey Group”) 1 of the Debtor seeking the appointment of an equity security holders’ committee pursuant to Bankruptcy Code § 1102(a) to be composed of the general partners of the D...
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DECISION ON MOTION FOR PAYMENT OF ADMINISTRATIVE EXPENSES On a motion by Yardarm Beach Condominium (“Condominium”) for payment of administrative expenses, the Condominium seeks payment from the trustee for common charges allegedly incurred by the *20 debtor, Stephen A. Mishkin, pursuant to his obligations stated in the by-laws and Declaration of Condominium, and attorney fees...
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MEMORANDUM OPINION Presently before me in this matter is a motion by Union National Bank (UNB) and Univest Mortgage Company (Univest) to deem a settlement agreement binding against Elaine M. Paolino. A hearing on the motion was held October 19, and November 16, 1987. As set forth below in findings of fact and conclusions of law, the instant motion will be granted. Preliminarily, howe...
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OPINION This is an appeal from an Order of the Bankruptcy Court denying the Defendants’ motion to vacate an order granting partial summary judgment to plaintiffs in an adversary proceeding. The parties have filed briefs and a designated record of the proceedings below. The unsecured creditors initiated this adversary proceeding charging defendants with usurpation of corporate opportunities, f...
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OPINION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT These three adversary proceedings were consolidated upon the identical issue presented, namely, whether regular payments made by a debtor to a credit union on a consumer loan within 90 days of filing bankruptcy are avoidable by a bankruptcy trustee as constituting preferences under the Bankruptcy Code. In each case, the parties have filed...
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MEMORANDUM OPINION ON MOTION FOR SUMMARY JUDGMENT Before this Court is the Motion of California First Bank (“CalFirst”) for Reconsideration of Order Disallowing Claim, Alternative Motion for Extension of Time to File Claim, Alternative Motion to Permit Late Filing of Claim, Alternative Motion to Deem Proofs of Claim Filed Informally and to Permit Amendment Thereof, and Alters native Motio...
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*43 MEMORANDUM OF DECISION Presently before the court is a complaint filed by Douglas L. Thrush, Trustee, objecting to the discharge of Richard A. Er-chenbrecher and Theresa Rose Erchen-brecher (Debtors). Debtors filed an answer denying the essential allegations of the complaint. A pre-trial conference was held whereat the parties agreed that the issue in dispute would be submitt...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the objection of Electronic Theatre Restaurants, Inc. (Debtor) to a claim filed by the City of Houston, Texas (City of Houston). An evidentiary hearing was held with notice thereof having been served upon all parties entitled thereto. Upon argument of counsel, adduced evidence, and a review of the relevant portions of the reco...
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ORDER DENYING CONFIRMATION OF CHAPTER 13 PLAN This matter is before the Court upon the requested confirmation of a Second Amend*50ed Chapter 13 plan proposed by the debtor in the above-captioned case and upon this Court’s independent obligation to find that all requirements set forth in 11 U.S.C. § 1325(a) have been met. The Court notes that the debtor’s plan calls for payments of $300.00 each mon...
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*52 DECISION ON ORDER DENYING MOTION BY DEFENDANT SUBURBAN ATHLETIC CLUB FOR EXTENSION OF TIME TO FILE A NOTICE OF APPEAL This proceeding, which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Standing Order Of Reference entered in this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) — matters concerni...
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DECISION AND ORDER GRANTING SUMMARY JUDGMENT OF PLAINTIFF ON LIABILITY AND DENYING SUMMARY JUDGMENT OF DEFENDANT This matter is before the Court upon cross Motions for Summary Judgment by plaintiff and defendant with accompaning memoranda and exhibits, affidavits and attachments. This matter arises under 28 U.S.C. § 1334(b) and the general order of reference entered in this district. The matter...
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DECISION and ORDER OF TRANSFER The two adversary proceedings identified in the caption above were brought against the same defendant, James Wood Kersting, who, at the time that the adversary proceedings were filed, was a debtor in this court. The proceedings have been consolidated for all purposes under Adversary No. 1-87-0156. The reason that two separate adversary proceedings were filed is ...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the Motion of USA Financial Services, Inc. (USA), to Modify the Automatic Stay. The Debtor is represented by Attorney William L. Balsley. USA is represented by Attorney Paul S. Godlewski. This Memorandum Opinion and Order shall represent findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rule...
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MEMORANDUM AND ORDER After the plaintiff, Delta Service Company, Inc., had completed the presentation of *67its evidence the defendant, Palatine National Bank, moved under Bankruptcy Rule 7041 [Fed.R.Civ.P. 41(b)] for dismissal of the complaint on the ground that upon the facts and the law Delta Service had shown no right to relief. The court will grant the motion and dismiss the complaint. Delta ...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the motion of Larry McDaniel (“Debtor”) for a default judgment against the defendant, “Nationwide”. The underlying adversary proceeding involves the Debtor’s complaint to avoid a preferential transfer pursuant to *70 § 547(b) of the Bankruptcy Code. (11 U.S. C. § 101 et seq.) 1 The motion ...
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MEMORANDUM OPINION AND ORDER This matter came before the Court on the Motion of the Chapter 13 Trustee to Dismiss the above-captioned Chapter 13 case. Attorney Mary Gorman represents the Trustee. Attorney Robert Wilson represents the Debtor. *73 The Debtor filed a Chapter 13 case, No. 87 B 31499, on October 14, 1987. A creditor, Regency Savings and Loan Association, filed a Motion for Relie...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on debtors’ Petition for Rule to Show Cause against Old Willow Falls Condominium Association (“Association”) for an alleged violation of the discharge granted on December 8, 1983. The debtors filed a voluntary petition under Chapter 7 of the Bankruptcy Code on September 27, 1983. At the time they owned a condominium unit. The Cond...
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MEMORANDUM AND ORDER The debtors in this Chapter 12 bankruptcy proceeding, Terrance and Marcia Crowley, appeal the decision of the bankruptcy court for the Western District of Wisconsin, Judge Thomas S. Utschig presiding, denying confirmation of debtors’ plan. The bankruptcy court denied confirmation because it found that the plan was not feasible under § 1225(a)(6) of the Bankruptcy Code. Juri...
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ORDER Petitioners John and Katherine Duncan are debtors in a bankruptcy action under Chapter 7 of the United States Bankruptcy Code. Petitioners filed an adversary complaint within the Chapter 7 proceeding to determine whether a lien on their real estate which was granted to John Duncan’s former spouse, Diane Sczepanski, pursuant to a divorce decree, is a judicial lien avoidable under § 522(f)(...
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ORDER DENYING MOTION TO DISMISS CHAPTER 12 CASE Now before the Court is a Motion to Dismiss this Chapter 12 case filed by the Federal Land Bank. The matter came on for hearing February 9, 1988. The debtors appeared personally and by counsel, Keith Blackman, Esq. Federal Land Bank (“FLB”) appeared by counsel, Ralph Wad-dell, Esq. At the hearing the parties announced the following stipulations:...
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MEMORANDUM OPINION This is an appeal from the bankruptcy court’s dismissal of a trustee’s complaint in an adversary proceeding against a bank. The trustee claimed that the bank had honored certain items presented for payment against the debtor’s account and that such payments were both negligent and in breach of its contract with debtor. The bankruptcy judge held that the Louisiana versio...
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MEMORANDUM OPINION Before the Court are the Objection to Plan of debtors, Dwight Murry Ferguson and Mary Aliene Ferguson, and the Objection to Amended Plan of debtors filed by Jim Walter Homes, Inc. (Jim Walter). In their original plan, the debtors proposed to treat Jim Walter as a secured creditor, but did not propose to cure arrearages, pay attorney’s fees or pay insurance expenses expe...
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ORDER REMANDING CASE Merrill and Ida Rose appeal from the June 18, 1987, order denying them a discharge in bankruptcy. Several portions of that order are based upon violations of 11 U.S.C. § 727(a)(2) and seem to be premised on the assumption that the debtors’ action regarding corporate assets can constitute a basis for denial of discharge of individual debtors. This assumption seems inconsistent ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL DECREE AND JUDGMENT DECLARING THE SECURITY INTEREST OF DEFENDANT SAC RIVER VALLEY BANK IN CERTAIN PERSONAL PROPERTY TO BE SUPERIOR TO THAT OF PLAINTIFF IN THE SAME PROPERTY The plaintiff requests that this court make a determination of the priority of security interests in 3 pieces of machinery- — a 1976 Massey Ferguson diesel Tractor, a sprayer and ...
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MEMORANDUM OPINION Debtor filed her Chapter 13 proceeding on December 22, 1987, at 1:30 P.M. and followed same with an adversary action under 11 U.S.C. § 548 on February 9, 1988. The adversary sought to set aside a foreclosure that occurred at 2:00 P.M. on December 22, 1987, some 30 minutes subsequent to the filing of the petition in bankruptcy. At the hearing, the reason for this unique approa...
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OPINION I Appellant Debtor Iwao Omoto appeals from an order granting relief from stay to validate a foreclosure sale. The foreclosing creditor, Neil Ruggera, did so despite the Debtor’s third Chapter 13 filing the day before. The trial court issued its order after the Debtor’s fourth filing, finding that Omoto had filed in bad faith. The Court declared the foreclosure sale valid and lifted ...
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OPINION Appeal from the United States Bankruptcy Court for the District of Nevada. Before MEYERS, MOOREMAN and ASHLAND, Bankruptcy Judges. A secured creditor appeals a judgment of the bankruptcy court denying as unreasonable a request for attorney’s fees. In re 268 Limited, 75 B.R. 37 (Bkrtcy.D.Nev.1987). The Ninth Circuit Court of Appeals had previously determined that a portion of the requested...
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At issue are the propriety and reasonableness of the fees charged by the attorneys and accountants for the trustee relating to the administration of the Chapter 7 debtor’s estate. Kathryn Crake, fifty percent general partner in the debtor, objects to these fees, alleging that (1) the trustee's investigation of the unsecured claim of Earl V. Hafer (“the Hafer claim”) was unnecessary, excessive, ...
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ORDER The Receiver has moved the Court to allow the claim of Hugo M. Pfaltz in the sum of $30,114.00. In reaching this total, the Receiver has applied § 502(b)(6) of the Bankruptcy Code, which sets forth certain limitations on the amount of claims allowable by a lessor of real estate. The claimant, Pfaltz, contends that the application of the Bankruptcy Code in a securities receivership is improp...
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MEMORANDUM OPINION This matter comes before the court upon the trustee’s objection to the debtors’ claimed exemption in the cash surrender value of life insurance policies. The parties have stipulated to the following facts: Debtors filed their Chapter 7 petition on January 28, 1987 and claimed as exempt, under O.R.S. 743.099(3), the cash surrender value of a Prudential Life Insuranc...
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OPINION AND ORDER THIS MATTER comes before the Court on a Motion for Attorney’s Fees. The fees are requested by the attorney of a proposed debtor under an Involuntary Petition in Bankruptcy. Exchange Network Corporation (“Exchange Network” or “proposed debtor”) was the proposed debtor of an Involuntary Petition in bankruptcy filed by three parties, each party ostensibly a creditor of Exch...
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MEMORANDUM OF DECISION These cases are before the court for ruling on the trustees’ challenges to various creditors’ claims to Payment in Kind (PIK) Certificates in the trustees’ possession. The facts are stipulated and are summarized below. The parties have exhaustively briefed the issues and the matters are ready for ruling. This is strictly a legal issue, as the trustees’ challenge the...
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MEMORANDUM OPINION This matter came before the Court on the motion of Western Bank of Albuquerque (“Bank”) to lift the automatic stay as to certain property of the debtors and on the Bank’s objection to debtors’ amended claim of exemption. Since the same property was at issue, these matters were combined for final hearing. The questions before the Court are two: (1) whether debtors’ exemp...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Introduction — The above-styled case was commenced in this Court on January 14, 1985, by a petition filed by the debtor under title 11, chapter 13, United States Code. The above-styled adversary proceeding was commenced on April 21,1986, by the filing of a complaint to determine the dischargeability of debts owed by the debtor to SouthTrust Bank of Al...
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MEMORANDUM OPINION THIS CAUSE came on for hearing on April 14, 1988, on this Court’s Order to Show Cause entered on March 2, 1988, and on the Motion to Vacate Order to Show Cause filed by the respondents on March 30, 1988. The Order to Show Cause was entered directing respondents, Robert De-Voe and his attorney Pamela A. Schneider to appear and show cause why they should not be held in contempt...
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ORDER ON MOTION FOR RETURN OF POST PETITION PAYMENTS The matter under consideration in the above-captioned Chapter 7 case is a motion filed by Bernard Gorski, Jr. and Leann J. Gorski, d/b/a European Connections (Debtors) seeking return of $1,350.00, representing post-petition payments made pursuant to a Chapter 13 pre-confirmation order. Prior to confirmation of the Plan, the Debtors converted ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Trustee’s Objection to the Debtor's Claim of Exempt Property. A hearing on the objection was held March 16, 1988, at the conclusion of which the Court directed the parties to submit written briefs and proposed findings of fact and conclusions of law. Upon the argument and evidence so presented, the Court makes ...
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*161 FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court on the debtor’s motion for 11 U.S.C. § 1129(b) treatment relative to Mutual Benefit Life Insurance Company ("Mutual Benefit”), the only creditor in Class 1. A hearing on the motion was held on February 9, 1988, at the conclusion of which the court directed the parties to submit written memoran-da in suppor...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court upon the complaint of the creditors, Federal Insurance Company (Federal) and Great Northern Insurance Company (Great Northern) against the debtor, Malcolm A. Feldman, to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(4), and the Court having heard the testimony, examined the evidence presente...
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ORDER ON OBJECTION TO CLAIM OF INTERNAL REVENUE SERVICE THIS CAUSE came on before the Court upon the debtors’, Dade Helicopter Jet Service, Inc. (Dade Helicopter), Tropical Helicopter Airways, Inc. (Tropical) and Brickell Investment Corporation (Brickell), Objection to Claim of the Internal Revenue Service (E.R.S.) pursuant to Bankruptcy Rule 3007, and the Court, having heard the testimon...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court upon the complaint of the trustee for revocation of the debtor, Myron F. Topper’s (the “debtor”) discharge, and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments of counsel, and being otherwise fully advised in the premises,...
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ORDER Before the court is the motion of Health-corp., Inc. (“movant”) for relief from the automatic stay and to require segregation and accounting. FINDINGS OF FACT On November 29, 1983, the debtor, Southeastern Emergency Healthcare, P.C., executed a purchase money note payable to movant in the principal amount of $205,-000.00. The parties entered into a security agreement on September 30, ...
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ORDER This matter is before the Court on the Trustee’s Motion for Reconsideration of Or *175 der Granting Application to Employ Attorneys. Hearing on the Trustee’s motion was held December 16, 1987. Briefs have been filed by Debtor and U.S. Trustee. STATEMENT OF FACTS This Chapter 11 case commenced August 28, 1987. On September 8, 1987, Debtor filed its Application ...
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This case comes to the court on appeal from the order of the United States Bankruptcy Court for the Middle District of Georgia entered on September 30, 1987, which declared that the lien of the United States Small Business Administration (SBA) on certain real and personal property of Paul D. Folendore and Helen H. Folen-dore, appellants herein, was not void under 11 U.S.C. § 506 and 11 U.S.C. § 5...
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MEMORANDUM OPINION Sitting by Designation. This matter comes before the Court on cross motions for summary judgment filed by the plaintiff Disbursing Agent for the AOV Industries Fund and the defendant Rockwood Insurance Company (“Rock-wood”). The Disbursing Agent was appointed pursuant to the debtors’ Amended Plan of Reorganization. For several years before A & T Associates, In...
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MEMORANDUM AND ORDER Vaspourakan, Ltd. (“Vaspourakan”) here appeals, pursuant to 28 U.S.C. § 158(a), a final order of the Bankruptcy Court denying its motion for an order of conveyance of a liquor license. I. Procedural History Vaspourakan is a debtor under Chapter 11 of the Bankruptcy Code. The sole shareholder of Vaspourakan is Alexan Kav-lakian. See Matter of Yerevan, at 1 (Licensing...
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FINDINGS OF FACT AND RULINGS OF LAW T.H.B. Corporation (the “Debtor”) moves that the Court enter a final order authorizing the use of cash collateral consisting of the proceeds of accounts receivable, pursuant to 11 U.S.C. § 363(c)(2) and Bankr.R. 4001(b)(2). The Court on January 28, 1988 authorized the use of cash collateral on an interim basis and granted post-petition liens in the acco...
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OPINION This is af complaint to have a debt represented by a state court judgment declared nondischargeable under 11 U.S.C. § 523(a)(2)(A) as a “debt for money ... obtained by ... false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s ... financial condition.” We grant plaintiff’s motion for summary judgment. Under the doctrine of collater...
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MEMORANDUM OPINION This case is before the court upon a sua sponte motion by the court under § 707(b) of the Bankruptcy Code questioning whether this case should not be dismissed as a “substantial abuse” of chapter 7 of the Code. The court previously took evidence on the question but before rendering a decision noted the possibility of the constitutional invalidity of the statu...
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MEMORANDUM-DECISION AND ORDER The Court has before it for consideration the First Application for Interim Compensation of Sheehan, Phinney, Bass & Green, Prof. Ass’n. (“Sheehan”), together with an Application for Authority to Set Off Against Retainer (“First Application”). *231 The Court has jurisdiction of this core proceeding pursuant to 28 U.S.C.A. §§ 1334 and 157. C...
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DECISION AND ORDER Before the court is an adversary proceeding seeking specific performance of an alleged contract for the sale of certain real property owned by the defendant-debtor. For the reasons stated below this court holds: (1) the writing does not satisfy the necessary requisites for an enforceable contract under New York State Law; and (2) the alleged sale falls outside the ordin...
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MEMORANDUM AND DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING COMPLAINT A complaint was filed with this court on November 13, 1986 by the law firms of Brewer & Soeiro and Horowitz & Jacobs on behalf of plaintiff Charles Hooten individually and allegedly on behalf of a class of holders of W.T. Grant Company 4%% Subordinated Debentures (“Subordinated Debenture Holders”) who tendered...
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*252 OPINION AND DECISION CONCERNING FEE APPLICATIONS On October 2,1975, W.T. Grant Company (“Grant”) filed a petition for an arrangement under Chapter XI, § 322 of the former Bankruptcy Act (the “Act”). Subsequently, by order dated April 13, 1976, Grant was adjudicated a bankrupt under the Act. Thereafter, Charles G. Rodman acted as trustee (“Trustee”) for the bankrupt estate un...
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OPINION AND DECISION ON MOTIONS FOR SUMMARY JUDGMENT On December 16, 1987, plaintiff’s and defendants’ motions for summary judgment pursuant to Bankruptcy Rule 7056 were heard before this court. Plaintiff Carl Burley, Trustee of the Reorganization Trust (“Plaintiff” or “Trustee”) of the estate of debtor Bruce Heafitz (“Heafitz”) moved for summary judgment against defendants American Gas &...
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DECISION Pursuant to Rule 3007 of the Rules of Bankruptcy Procedure (1987) Debtor, Wed-tech Corporation, and the Official Committee of Unsecured Creditors (the “Committee”) jointly seek an order disallowing, pursuant to Bankruptcy Code Sections 502(e)(1)(B) and 502(b)(1), 11 U.S.C. §§ 502(e)(1)(B), 502(b)(1) (1986), the claims for indemnity filed by John Mariotta, founder and a former off...
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DECISION ON PROFESSIONALS’ FEE APPLICATIONS AND MOTION BY ANGELO RAINALDI AND HENRY F. RAAB OPPOSING APPLICATIONS AND SEEKING RETURN OF INTERIM COMPENSATION Pursuant to two orders of this court, dated February 2, 1987 and June 30, 1987, the law firms of Sitomer & Odessor, P.C. (“Sitomer”) and Marc Stuart Goldberg, P.C. (“Goldberg”) and accountants, Seidman and Seidman were retained, respectively,...
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OPINION A, INTRODUCTION AND PROCEDURAL HISTORY We are presented with two motions in this case, both of which will be addressed herein: (1) A motion to dismiss or to obtain relief from the stay filed by Cavalier Real Estate, Inc., the Debtor’s only admittedly secured creditor (hereinafter referred to as “Cavalier”); and (2) A motion to dismiss or to change venue to the Bankruptcy Cour...
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OPINION The matters presently before us in the above-entitled case require us to consider, on one level, whether the debtor-tenant’s commercial lease has- been terminated; and, on the another level, what effect a determination on that issue in a state court landlord-tenant proceeding should have upon the result that we reach. While we conclude that the Debtor’s position appears to have su...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, OPINION AND ORDER INTRODUCTION The issue addressed in the within findings of fact, conclusions of law, opinion and order is whether this United States District Court should grant the motion requesting that the underlying Bankruptcy Code Chapter 11, Reorganization Proceeding filed in the United States Bankruptcy Court for the Western District of P...
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*368 MEMORANDUM OPINION AND ORDER The matter before the Court is a motion filed by the United States for reconsideration of an Order entered on October 5,1987 or, in the alternative, to extend time for filing a notice of appeal if the October 5, 1987 Order was a final, appealable Order. The Order found that the Internal Revenue Service was in technical violation of the discharge provisions of...
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MEMORANDUM OPINION The matter before the Court is an objection to exemption filed on behalf of George Gallagher, d/b/a George Gallagher Plumbing (hereinafter Gallagher). Gallagher challenges a $14,000.00 exemption claimed by Debtors Gary A. and Mary L. Gorski in their residence. The basis for the objection is that only Mrs. Gorski holds record title and therefore the maximum exemption whi...
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MEMORANDUM This matter is before the Court on motions to certify a mandatory plaintiff class. The Breland action was brought against the Debtor’s insurance carrier Aetna Casualty and Surety Co. (“Aetna”) by claimants alleging injuries from the product and conduct of the Debtor and Aetna. The paramount issue is the propriety of certifying mandatory or opt-out classes with respec...
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MEMORANDUM OPINION On the motion of Second National Bank and Douglas C. Carter, plaintiffs in a related adversary proceeding numbered 86-0454-R, and the Trustee, Charles R. Jaeger (“Trustee”), plaintiff in a related adversary proceeding numbered 87-0106-R, and the defendant in both such proceedings not objecting, it was Ordered that the two adversary proceedings be consolidated into one p...
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MEMORANDUM OPINION FINDINGS OF FACT This matter comes before the Court on the application of Ruth A. Gibson (“Gibson”) for compensation in the amount of $1,623.50 in attorney fees and $165.58 in expenses to be paid as an administrative expense of the Chapter 7 bankruptcy of Contract Marine Carriers, Inc. The applicant was employed by a creditor of the estate, Sharon C. Early (“Early”), who alleged...
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MEMORANDUM OPINION AND ORDER The essential question presented is the manner in which the Internal Revenue Service (“IRS”) shall credit tax payments made by the trustee. The issue arises because of the debtor’s objection to the trustee’s proposed distribution of funds. The debtor does not argue that the distribution of the estate’s funds to the IRS (the other party in interest) is improper...
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ORDER On this day, came on for consideration the Proposed Findings of Fact and Conclusions of Law of the United States Bankruptcy Court entered on February 23,1988, that the District Court should Abstain from hearing the above-captioned cause. After reviewing the proposed findings and conclusions, this Court is of the opinion that it should adopt the proposed findings of fact and conclusi...
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ORDER DENYING “MOTION FOR NEW TRIAL” On this day, the Court considered the Motion for New Trial filed by the United States of America, regarding two orders entered on March 31,1988. The first order approved an objection to the IRS’s Proof of Claim and the second order approved an objection to the IRS’s Request for Payment — Proof of Claim — Administrative Expense Claim. Rule 3008 states, “A p...
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MEMORANDUM OPINION AND ORDER DENYING MOTION TO LIFT AUTOMATIC STAY AND TO SETOFF The United States, on behalf of the United States Department of Agriculture *402 (“USDA”), brings this motion under 11 U.S.C. § 362(d) to lift the automatic stay set forth in § 362(a)(7). The United States asks this court to permit Farmers Home Administration (“FmHA”), an agency of USDA, to setof...
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*408 OPINION Pending before the Court in this action are motions for summary judgment by defendants Jackie Presser and the International Brotherhood of Teamsters, Ware-housemen, Chauffeurs and Helpers of America (the “union”). Defendants filed their motions on August 14, 1987. For the reasons discussed below, the Court will deny both motions. Facts This case arises ...
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OPINION This case is before the Court on defendant Jackie Presser’s Motion to Dismiss for Lack of Subject Matter Jurisdiction. Jurisdiction in this matter is based upon 28 U.S.C. § 1334(b) which provides that “the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to causes under title 11.” Presser a...
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OPINION This matter is before the Court on plaintiff-appellant Walthout’s appeal from an *427 order by Bankruptcy Judge Howard referring this matter to the Interstate Commerce Commission (“ICC”). Appellant, the trustee of Tucker Freight Lines, Inc. (“Tucker”), a common carrier, instituted this action on September 12, 1985 seeking recovery of freight bill undercharges. Between...
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MEMORANDUM OF DECISION This matter comes before the court on a Motion to Dismiss filed on behalf of defendants Edwin Wilson, June Marsh Wilson, Rees Cecil Chapman and Dorothy Wilson Chapman. (Wilson/Chapman). Plaintiff, GEX Kentucky, Inc. (GEX) initiated this adversary proceeding by filing a complaint, subsequently amended, to determine ownership of and damages to certain real property lo...
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MEMORANDUM OF DECISION Presented for consideration is a Motion for Partial Summary Judgment, filed on behalf of Mansfield lire & Rubber Company, Pennsylvania Tire and Rubber Company of Mississippi, Inc. and Pennsylvania Tire Company (collectively, Debtors), seeking a determination that post-petition real estate taxes constitute an in rem obligation attaching to the assessed real estate an...
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ORDER These cases were instituted by the filing of Petitions for Relief under Chapter 11 of Title 11, United States Code, on November 3, 1987. On February 4, 1988, a Motion was filed on behalf of a party in interest and a member of THE CREDITORS COMMITTEE seeking a change of venue of these proceedings to The United States Bankruptcy Court for the Southern District of California, at San Diego. A...
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MEMORANDUM OPINION This cause is before the Court upon the Motion of THORP DISCOUNT, INC., nka ITT FINANCIAL SERVICES (“ITT”), a secured creditor of the Debtors in this cause. ITT has moved the Court for an Order reopening this Chapter 13 proceeding and for other relief. Debtors’ counsel was given until July 31, 1987, to file a Brief in response to the Motion, but to the date of this Orde...
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MEMORANDUM OF DECISION Presented to the court are various motions for summary judgment in these three adversary proceedings. Pursuant to 11 U.S.C. § 547, the Unimet Assets Disposition Trust, through its Trustee, seeks to recover several payments made to the defendants by Unimet Corporation (Unimet) or its subsidiary Esmet, Inc. (Esmet). The defendants do not deny the applicability of Subs...
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ORDER This cause came on before the Court for consideration upon the Motion of JOHN H. LANGDON and MARJORIE LANGDON, creditors and parties in interest, seeking relief from the automatic stay provisions of 11 U.S.C. See. 362. After reviewing the Motion and hearing the representations and argument of counsel, the Court finds: 1. On November 13, 1982, the Debtor entered into an agreement to sell the...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the objection of Mellon Financial Services Corporation (Mellon) to confirmation of a proposed repayment plan filed by the Debtor, Estelle Wainwright. Upon evidentiary hearing, with notice having been duly served, the Court has further reviewed the record and all relevant pleadings. Pursuant to Rule 7052, Bankr. R., the following...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the Trustee’s objection to a claim filed by the Ohio Edison Company (Edison). Upon a hearing with notice being given to all entitled parties, the following constitutes the Court’s findings and conclusions pursuant to Rule 7052, Bankr. Rules: This is a core matter under provisions of 28 U.S.C. § 157(b)(2)(B), with jurisdiction fu...
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ORDER SUSTAINING OBJECTION TO CONFIRMATION This matter is before the Court upon an objection to confirmation of the Chapter 13 plan proposed by Julia A. Carson. The objection was filed by Frank M. Pees, the standing Chapter 13 trustee for this district (“Trustee”), and was heard by the Court. The Court has jurisdiction in this matter under 28 U.S.C. § 1334(b) and by the General Order...
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ORDER FINDING A WILLFUL VIOLATION OF SECTION 362 BY ROCKWELL CREDIT UNION AND GRANTING SANCTIONS TO THE DEBTORS This matter is before the Court on the motion of debtors Keith and Julie Grace, seeking sanctions and other relief against Rockwell Credit Union (“Rockwell”) for its alleged violation of the automatic stay imposed by 11 U.S.C. § 362(a). • Although notice of the motion and hearing ther...
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ORDER ON MOTIONS TO DISMISS CASE This matter is before the Court upon two motions seeking to dismiss the Chapter 13 case of Ronald and Bonnie Midkiff. The first motion, filed by the Chapter 13 Trustee (“Trustee”), seeks to have this case dismissed for failure of the debtors to make the payments required by their confirmed plan. The other motion, filed by Bank One, Columbus, NA (“Bank One”), see...
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DECISION and ORDER ON CLAIM OF CG & E This bankruptcy case was commenced as a Chapter 13 case on May 8,1985. Debtors converted the case to Chapter 7 on May 15, 1987. Following the conversion, Cincinnati Gas and Electric Company (CG & E), a utility company, filed an application for allowance as an administrative expense of its claim for the provision of utility services during the Chapter ...
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MEMORANDUM OPINION Appellants Huntington Trust Development Company, Inc. (“Huntington”), Drafting & Construction Services, Inc. (“Drafting”), Chess Development Co., Inc. (“Chess”), Carolyn DePhillips (“Carolyn”), James L. Popp (“James”), Linda Rheedy (“Rheedy”), and Linda Battle (“Battle”) have appealed an order of the bankruptcy court pursuant to 28 U.S.C. § 158(a). In the order, the ban...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on motion of the Atchison, Topeka and Santa Fe Railway Company (“ATSF”) for an extension of time in which to file objections to discharge and complaints as to discharge-ability of debts. The facts are not in dispute: On January 7, 1987, Avery Eliscu filed his petition for relief under Chapter 7 of the Bankruptcy Code (11 U....
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MEMORANDUM OPINION AND ORDER ON PLAINTIFF’S MOTIONS FOR AMENDMENT OF THE PLEADINGS AND SANCTIONS Plaintiff moves to Amend Pleadings to conform to proofs and also to file an Amendment to Complaint pursuant to Bankruptcy Rule 7015(b) and F.R.Civ.P. 15(b). Also, Plaintiff seeks Sanctions against Defendant and its counsel in accordance with Bankruptcy Rule 9011 and F.R.Civ.P. 11. Defendant ha...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the Motion of the First National Bank of Freeport (Bank) to Reconsider and Amend Order of Dismissal, the Petition of Robert Olson (Landlord) to Enforce Landlord’s Lien in 1986 Crop Proceeds, the Motion of Lowell Seagren (Landlord) to Amend Order of Dismissal and the Motion of the Federal *492 Land Bank (PLB) t...
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MEMORANDUM OPINION DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff, The Chase Manhattan Bank (USA), N.A. (“Bank”) has sued Debtors/Defendants Dale Foster Williams (“Dale”) and his wife Karen Kaye Williams (“Karen”) to bar their discharge of two alleged debts — $1,568.38 in Count I and $6,928.90 in Count II — under 11 U.S.C. § 523(a)(2)(A). The gist of the Complaint is that both ...
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MEMORANDUM OPINION AND ORDER This chapter 13 case is before the court on a motion for modification of the automatic stay. The movant, Federal National Mortgage Association (“FNMA”), holds a first mortgage on the debtor’s residence, and, having initiated foreclosure proceedings in an Illinois state court before this bankruptcy case was filed, now seeks to conclude the foreclosure. The debt...
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MEMORANDUM OPINION AND ORDER This matter is before the court on motion of the Illinois Bell Telephone Company (“Bell”) to dismiss adversary number 87 A 1223 or in the alternative, for summary judgment. The motion will be denied for reasons set forth herein. Directional International, Ltd., Access Microcenters, Inc., and the New Personal Computer Network, Inc. (“Plaintiffs”) purchased...
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ORDER Presently before this Court is H. Dean Stegall’s and Sandra Stegall’s (hereafter Stegalls) appeal from a bankruptcy court decision denying confirmation of their Chapter 11 agriculture reorganization plan. This Court’s jurisdiction is conferred by 28 U.S.C. § 158(a). On September 12,1985, the Stegalls, husband and wife, filed a joint voluntary petition under Chapter 11 of the Bankruptcy ...
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MEMORANDUM OPINION The trustee has appealed a ruling of the bankruptcy court holding that the cash surrender values of life insurance policies are exempt from the claims of creditors under Arkansas law. 66 B.R. 39. By way of background, we note that in accordance with the provisions of 11 U.S.C. § 522(b), Arkansas “opted out” of the federal exemptions provided by 11 U.S.C. § 522(a). In 1981 Ark...
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AFFIRMANCE OF BANKRUPTCY ORDER AND JUDGMENT The court has before it the appeals, under 28 U.S.C. § 1334(a) and Bankruptcy Rule 8001(a), of Mapco Gas Products, Inc., Mid-America Pipeline Company and Burke Energy Corporation from a final Order and Judgment entered on Bankruptcy No. 85-340-C, Adversary Nos. 85-0203 and 85-0048, on July 9, 1986, by the United States Bankruptcy Court for the Souther...
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ORDER The above-entitled case was commenced by the filing of a Chapter 11 petition on July 11, 1985. The case was converted to Chapter 7 on March 10, 1986. Michael J. Iannacone was appointed trustee on March 11, 1986, and is now the duly qualified and acting interim trustee. The case is presently before the Court pursuant to Notice and Motion regarding approval of settlement agreements filed *522...
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This case came on for hearing on Nor-west Bank Grand Rapids’ motion for relief from stay under 11 U.S.C. § 362(d). Raymond C. Lallier appeared for the bank and Joseph G. Beaton, Jr. appeared for the debtors. This court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334, and Local Rule 103(b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(G). Based on the evidence, memoranda of couns...
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MEMORANDUM ORDER This matter came on for hearing on February 1, 1988, on the application of Chaska Investment Limited Partnership, pursuant to 11 U.S.C. § 503(b)(1)(A), to determine whether certain rent claimed to be due from the debtors is an administrative expense. Arthur C. Benson appeared for movant and P. Joseph O’Neill appeared for the debtors. This court has jurisdiction pursuant t...
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MEMORANDUM OPINION INTRODUCTION This matter comes before the Court upon the Motion of Robert L. Neier and his wife, Susan A. Neier (hereinafter the “Neiers”) For Relief From The Stay Provisions of the Bankruptcy Code Or, In The Alternative, For Adequate Protection (hereinafter the “Motion”). The Neiers’ Motion was filed March 24, 1988, and the case was tried April 11, 1988. FACTS On January 30, 1...
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ORDER There are two issues presented in this Bankruptcy appeal: (1) whether the creditor was barred from opposing the debtors’ Motion to Avoid Lien by failing to file an answer within fifteen days after receiving notice of the debtors’ motion; and (2) assuming the creditor was not barred from challenging the debtors’ motion, whether the debtors’ four guns are “household goods” within the meanin...
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MEMORANDUM OPINION This adversary action involves the attempt of debtors to remove from state court (the Circuit Court of Boone County, Missouri) a cause of action which was therein pending at the time of the filing of debtors’ petition in this Court. That cause of action is a tort action sounding in fraud. The putative defendants are the Farmers Home Administration, Don Wemhoff, the Court Supervi...
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OPINION David M. and Marjorie Grzybowski appeal from an order disallowing their claim against Aquaslide “N” Dive Corporation (Aquaslide). We affirm. FACTS On or about July 14, 1984, David Grzy-bowski, appellant, was severely injured as a result of sliding down a slide into his swimming pool. It is alleged that the slide in question was manufactured by the debt- or, Aquaslide. Ne...
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OPINION The captioned case came on for hearing before this Court, the Honorable Edward Rafeedie, United States District Judge, presiding, on April 4, 1988, on Carol Morgan’s appeal from judgment of the United States Bankruptcy Court for the Central District of California. Appellant Carol Morgan was represented by David A. Tilem of the Law Office of David A. Tilem. Appellee Marvin Jerome B...
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ORDER In this Chapter 11 proceeding, two secured creditors Gallagher and Datsopoulos (Gallagher) have filed a motion for relief from the automatic stay to allow Gallagher to repossess real property of the Debtor sold by Gallagher under a Contract For Deed on July 1, 1981. Hearing on the motion, opposed by the Debtor, was held on September 9, 1987. The evidence shows that the Debtor’s predeces...
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ORDER GRANTING RELIEF FROM AUTOMATIC STAY In this case, a creditor, Ronald E. Tow-ery, filed a motion for relief from the automatic stay on October 29, 1987. The basis of the motion was the Debtor’s failure to cure the default on a Contract for Deed within sixty (60) days of the filing of its Chapter 12 petition. The Debtor resists the motion. Mr. Towery cited this Court’s recent decisions in...
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ORDER In this Chapter 11 case, Chase Bank of Arizona, a secured creditor, filed a motion for relief from the automatic stay on February 1, 1988, together with objections to use of cash collateral and request for Order prohibiting use of cash collateral. A companion motion to change venue of the case was also filed on the same date. 1 The Clerk failed to schedule a preliminary h...
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MEMORANDUM DECISION This matter is before the court on a motion to lift stay filed by Chrysler Credit Corporation. Debtor’s counsel filed written opposition to the motion arguing that Chrysler Credit is adequately protected because the debtor has remained current on his payments. Although debtor’s counsel did not appear at the hearing on Chrysler Credit’s motion, the debtor did appear and...
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MEMORANDUM OPINION At the hearing upon confirmation of the debtor’s plan in this Chapter 13 case, the debtor appeared by her attorney William J. Claussen, of Portland, Oregon, and the Oregon State Scholarship Commission appeared by its attorney Paul J. Garrick, Assistant Attorney General, of Salem, Oregon. The Chapter 13 Statement filed by the debtor lists no secured debts, no priority debt and $1...
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ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT RE STATUTE OF LIMITATIONS Defendant Hudson Shipbuilders, Inc. (Hudson) seeks partial summary judgment against Plaintiffs’ first, second, and fifth claims to the extent they seek recovery of damages associated with Plaintiff McMur-rick’s alleged personal injuries. Hudson’s Motion for Partial Summary Judgment is based on a contention that t...
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ORDER This matter is before the court on a motion for withdrawal of reference filed pursuant to 28 U.S.C. § 157(d) by the plaintiff in an adversary action filed in the United States Bankruptcy Court for the District of Colorado. On June 18, 1987, an involuntary bankruptcy case was commenced against the debtor/defendant James Berry Craddock in the bankruptcy court. On June 30, 1987, Craddock c...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Application for Award of Final Compensation filed by Laventhal & Horwath, accountants for the Debtor. Although there were no objections filed by creditors to the Application, the Court was unable to evaluate and independently determine the merits of the Application due to the Court’s lack of knowledge or familiarity wi...
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MEMORANDUM AND ORDER This is an appeal brought by the debtors, Curtis Neal Heape and Billie Jean Heape, from the bankruptcy court’s order of September 26, 1986, denying their application to avoid a nonpurchase-money, nonposses-sory lien on breeding stock pursuant to 11 U.S.C. § 522(f). Debtors have also filed a motion to stay the Citadel Bank of Independence from instituting proceedings i...
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MEMORANDUM AND ORDER This appeal from the bankruptcy court involves application of a statute exempting government-guaranteed higher education loans from discharge. In a nutshell, the Higher Education Assistance Foundation (HEAF) contends that 11 U.S.C. § 523(a)(8), which exempts such loans from discharge, is self-executing and requires no complaint to determine dischargeability as a prere...
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*583 ORDER GRANTING IN PART AND DENYING IN PART TRUSTEE’S OBJECTION TO CLAIMED EXEMPTIONS On October 9, 1987, Jack Alvin Shields, Sr. (“Debtor”) filed his petition for relief under 11 U.S.C. Chapter 7 with attachments and schedules including Schedule B-4 listing property claimed as exempt pursuant to 11 U.S.C. § 522(l). On December 3, 1987, Patrick J. Malloy, III, Trustee of Debt...
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ORDER Before the Court are the two above-named consolidated bankruptcy appeals. Both appeals arise from the Chapter 11 bankruptcy case filed by William J. O’Con-nor (O’Connor). The bankruptcy petition and schedules were filed in 1984. O’Connor originally failed to list the United States Department of Energy (DOE) as a creditor therein. The DOE learned of the bankruptcy and filed a pr...
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MEMORANDUM OPINION This cause is before the court on appeal by defendants from two decisions of the united States Bankruptcy Court for the Northern District of Alabama. 1 The appeal is taken pursuant to 28 U.S.C. § 158(a) and Rule 8001 of the Bankruptcy Rules. The defendants appeal from the bankruptcy court’s order of May 8, 1986, granting plaintiffs leave to amend and to add a...
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FINDINGS AND CONCLUSIONS OF LAW Introduction— The above-styled adversary proceeding was commenced by a former spouse of David Roy Brazier, a debtor in the above-styled case, to determine the dischargeability of a debt alleged by the former spouse to be for support of a child of the debtor and, therefore, nondischargeable under 11 U.S.C. § 523(a)(5). The plaintiff has moved for summary judgment. U...
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MEMORANDUM OPINION The debtors, Benesteen Barron and Nancy Barron, commenced this bankruptcy case by filing a joint voluntary petition under title 11, chapter 7, United States Code, on June 25, 1986, and the case remains pending under said chapter. The above-styled adversary proceeding was commenced by the plaintiff, Combustion Federal Credit Union, by filing a complaint on September...
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*609 FINDINGS OF FACT AND OPINION Introduction— This is a chapter 13 bankruptcy case, commenced by the debtors’ joint petition under title 11, United States Code, filed in this Court on March 2, 1987. The above-styled adversary proceeding was commenced by the debtors’ complaint filed herein on December 3, 1987, seeking preliminary and permanent injunctions, a monetary judgme...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on to be heard upon the objection of the creditor Deer-wood Club, Incorporated, (Deerwood), to the debtor’s application/notice pursuant to 11 U.S.C. § 363(b) of auction sale of real property of the estate. This application and objection have proceeded as a contested matter herein with discovery having been taken, and this Court does not find it necess...
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ORDER ON MOTION FOR SANCTIONS AGAINST DEBTOR AND DEBTOR’S COUNSEL THIS CAUSE came on for hearing with notice to all parties in interest upon a Motion for Sanctions against Debtor and Debt- or’s Counsel filed by Citizens and Southern National Bank of Florida (C & S), a creditor in the above-captioned Chapter 7 case. The Court has considered the Motion, together with the record, has heard a...
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MEMORANDUM OPINION This case is before the Court upon California Federal Savings & Loan Association’s (“Cal Fed”) Motion for Sequestration of Rents and Profits and Motion to Prohibit Use of Cash Collateral. A hearing on the motions was held January 21, 1988, and upon the evidence presented, the court finds in favor of Movant. FACTS The debtor owns a retail shopping center on whi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon American Pioneer Savings Bank’s (“American Pioneer”) Motion to Dismiss and Motion to Prohibit Use of Cash Collateral and/or to Sequester Rents, Profits and Proceeds. 1 A hearing on the motions was held March 1, 1988, at the conclusion of which the Court instructed the parties to submit written briefs and proposed findi...
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MEMORANDUM DECISION ON TRUSTEE’S OBJECTION TO CLAIM NO. 37 FOR FEDERAL TAXES This matter came before this Court for hearing on the Trustee’s objection to Claim No. 37 of the United States for internal revenue taxes on December 15, 1987. Upon reviewing the testimony presented at the hearing, the objection and the letter briefs submitted by counsel, and being otherwise fully advised, this Court h...
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ORDER GRANTING STAY RELIEF The motion (CP 8) of the debtor’s mortgagees for stay relief was heard February 4. For the reasons stated below, the motion is granted retroactively to January 5. Before bankruptcy, movants obtained a foreclosure judgment, the property was sold by the clerk, and a Certificate of Sale was issued December 7, 1987. The *632debtor then filed an objection to the sale. Several...
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ORDER DISMISSING BANKRUPTCY PETITION WITH PREJUDICE FOR FAILURE OF DEBTOR TO APPEAR AT § 341 MEETING THIS MATTER having come on for hearing on Wednesday, March 30, 1988 before the undersigned Bankruptcy Judge after due notice upon the Motion to Dismiss filed by attorney for Creditor PATRICIA SONDRA BLACKMON. It appearing to this Court that on July 14, 1987, the date and time set by this Court f...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This bankruptcy case comes before the Court on February 1, 1988, on the Complaint of WORLD WIDE BEARING AND AUTOMOTIVE PARTS, INC. (“WORLD WIDE”) to determine the dischargeability of certain debts incurred by the Debtor in this action, BETTY CAROL SPRINGER (“SPRINGER”). WORLD WIDE initially filed its lawsuit against SPRINGER in the Circuit Court for the...
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ORDER DENYING MOTION TO REOPEN CASE The motion (CP 3006) of A.Z. Hodge to reopen these eight consolidated cases and to retroactively extend the claims bar date in order to consider his claim of $39,391 was heard March 21. The motion is denied. These related debtors filed for bankruptcy under chapter 11 in March 1985. After a debtors’ reorganization plan was rejected by the creditors, a credit...
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ORDER OF CONTEMPT THIS CAUSE coming on to be heard on April 28,1988, upon WESTFIELD FINANCIAL CORPORATION’S Emergency Motion for Contempt and/or Ancillary Relief, and the Court having reviewed the pleadings and proceedings herein, having heard argument of counsel and being otherwise fully advised in the premises, and in the exercise of the Court’s duty under Section 105 to protect the bankruptcy s...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon a complaint by Karen K. Davis (the “creditor”) against Diane Ducharme (the “debtor”) to determine the discharge-ability of a state court judgment pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(4) and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the wit...
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MEMORANDUM DECISION AND FINAL JUDGMENT THIS CAUSE having come before the Court upon the complaint of Amerifirst Federal Savings and Loan Association (“Amerifirst”) to determine the discharge-ability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments of ...
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ORDER This matter came on for trial on motion of First Federal Savings & Loan Association of Warner Robins (“First Federal”) for relief from the automatic stay. The case relates to the sole asset of the debtor, a commercial office building located at 92 Luckie Street, N.W., Atlanta, Fulton County, Georgia 30303, known generally as the Standard Building. First Federal is the holder of the ...
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*652 MEMORANDUM OPINION AND ORDER This case presents the question of whether an oversecured creditor can enforce provisions for attorney’s fees in a note and deed to secure debt as allowed under Georgia law in a Chapter 11 case when the Chapter 11 debtor proposes a plan to cure and reinstate the debt pursuant to 11 U.S.C. § 1124(2) and when the debtor in fact cures all arrear...
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ORDER DISMISSING CASE This matter came on for hearing before the Court on the Motion of the Debtor to dismiss this case or in the alternative to convert same to a Chapter 7 liquidation. Appearances were entered on behalf of Dearing Leasing, Inc., the Internal Revenue Service and the United States Trustee. Both Dearing Leasing, Inc., and the Inter *662 nal Revenue Service expressed their desir...
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*663 ORDER ON MOTION TO DISMISS The United States Trustee filed a Motion to Dismiss this Chapter 7 case pursuant to 11 U.S.C. Section 707(b) which provides: “After notice and a hearing, the court, on its own motion or on a motion by the United States Trustee, but not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under...
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MEMORANDUM OF DECISION Appellants, United Automobile Workers of America and its Local 982 (collectively “the UAW”), challenge the confirmatory order of the Bankruptcy Court entered on June 15, 1987, approving the sale of assets by Morse Tool, Inc. (“the Debtor”) to MTI Holding Corporation (“MTI”) free and clear of collective-bargaining agreements between the Debtor and the UAW. 1 ...
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MEMORANDUM INTRODUCTION Two matters are before the Court: the motion of Micro Education Corporation of America (“MECA”) for summary judgment with respect to its ordinary course of business defense to First Software’s preference complaint and First Software’s cross motion for partial summary judgment with respect to the five elements that it must establish to entitle it to recover pre...
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MEMORANDUM AND ORDER ON OBJECTIONS UNDER CODE § 546(a)(1) TO MOTION TO AMEND A COMPLAINT The plaintiff, interim trustee, 1 seeks to amend his complaint in each of the above adversary proceedings to add additional causes of action. Both defendants object, asserting that the causes of action are barred by the two year limitation period under Code § 546(a)(1). The dispositive issu...
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MEMORANDUM-DECISION AND ORDER Cancel, the appellant here and the debtor in the underlying bankruptcy proceeding, was convicted of receiving unauthorized unemployment benefits. As part of his sentence in the state proceeding he was required, as a condition of probation, to make restitution payable to Citizens for Law, Order, and Justice, Inc. (“Citizens”), one of the appellees. “Citizens” is a n...
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MEMORANDUM AND ORDER This is an appeal from a decision of the Bankruptcy Court (Holland, J.) holding that certain proofs of claim filed by the Internal Revenue Service (“IRS”) were late claims that were properly subordinated to claims of general creditors. According to IRS, the claims at issue were amendments to earlier claims and the Bankruptcy Court incorrectly held the claims to be unt...
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DECISION Seven years after this adversary proceeding was commenced by the trustee to establish a fraudulent conveyance and impress an equitable lien, we finally come to the end of the long journey. As is the case where fraudulent intent requires proof of circumstantial evidence, it took the trustee that much time to try to put together the myriad tiles necessary to make up the mosaic. Equ...
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MEMORANDUM AND DECISION This case was commenced by the filing of a voluntary petition in Chapter 13 on October 1, 1984. On October 28, 1986, the Debtor, Ronald Horton, initiated this proceeding against the Internal Revenue Service (“IRS”) to determine 1) the dependents for whom he was entitled to declare federal tax exemptions during the years 1982 through 1986 inclusive; and 2) whether during tax...
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DECISION ON COMPLAINT TO DETERMINE DISCHARGEABILITY Plaintiff, David Feldman, has filed an adversary proceeding against the debtor, Helene Kaufman, seeking to have his claim against her determined to be nondischargeable under 11 U.S.C. § 523(a)(2)(A), in that she allegedly obtained property from the plaintiff by false pretenses and actual fraud. A second cause of action in the complaint alleges...
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MEMORANDUM DECISION AND ORDER ON TRUSTEE’S MOTION TO COMPEL John S. Pereira, Chapter 7 trustee of A1 Nagelberg & Co., Inc. (Trustee), moves to compel Marine Midland Bank, N. A. (Marine) to produce for his examination unre-dacted versions of two business records pursuant to Fed.R.Bankr.P. 7026 and Fed. R.Civ.P. 26. The redactions were made at the behest of Marine’s counsel who urges that the redac...
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This matter is before the court on a notice of motion for summary judgment brought by the State of New Jersey, Division of Motor Vehicles, to determine the dischargeability of an insurance surcharge. The New Jersey Merit Rating Plan insurance surcharge, N.J.S.A. 17:29A-35(b)(2), is levied as a result of a conviction for driving while intoxicated, and provides for payments of not less...
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MEMORANDUM This is an appeal from a decision, dated January 30, 1986, 57 B.R. 310 (Bkrtcy.M.D. Pa.), of the Honorable Robert J. Woodside, a bankruptcy judge in this judicial district. Judge Woodside decided that he lacked authority to enlarge the time for filing objections to the discharge of the debtor, where the request for the extension of time was made after the expiration of the original p...
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MEMORANDUM AND ORDER Before the court is the debtor’s appeal from the order of the bankruptcy judge denying the debtor’s motion to determine a lienholder’s secured status under 11 U.S.C. § 506 (1982 & Supp. IV 1986). Although I agree in large part with the bankruptcy judge’s analysis, see 64 B.R. 415 (Bankr.E. D.Pa.1986), I write briefly here in order to respond more fully to t...
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ORDER AND NOW, this 30th day of June, 1987, it is hereby ordered that the December 8, 1986 order of the United States Bankruptcy Court, 68 B.R. 29, óf the Eastern District of Pennsylvania is reversed. The question presented by this appeal from the bankruptcy court is whether, under Chapter 13 of the Bankruptcy Code, a mortgagee with a security interest in real property that is the debtor’s princip...
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MEMORANDUM OPINION Mary Lou Wilson, estranged wife of the debtor George Wilson, has filed a motion for relief from the automatic stay or, in the alternative, for discretionary abstention. The debtor vigorously opposes these requests as does the standing chapter 13 trustee. 1 Resolution of this contested matter requires a determination whether, if ever, a bankruptcy court should...
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ORDER This case has been appealed from the Bankruptcy Court decision dismissing the debtors’ petition because of the debtors’ late payment under their Chapter 13 plan pursuant to a holding that the Bankruptcy Court lacked discretion under Section 1307(c) to excuse late payment. On appeal, this Court must determine whether Section 1307(c) of the Bankruptcy Code provides the Bankruptcy Judge with...
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ORDER This matter comes before the Court on debtor’s complaint to enjoin a wage garnishment issued by an Oklahoma state court for attorney’s fees in a child support case. James Lee Nelson filed his Chapter 13 case in February, 1988. On April 22, 1988, this Court heard argument and denied the injunction in light of the Fourth Circuit’s ruling in Caswell v. Lang, 757 F.2d 608 (1985), this Court...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW IN CONNECTION WITH THE COURT'S ORDER GRANTING F.W. WOOLWORTH CO.’S PARTIAL MOTION FOR SUMMARY JUDGMENT JURISDICTION AND REMAINING ISSUES This proceeding is a core proceeding and this Court has jurisdiction herein pursuant to the provisions of 28 U.S.C. § 1334 and 28 U.S.C. § 157, and these Findings of Fact and Conclusions of Law are hereby subm...
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*736 AMENDED OPINION AND ORDER 1 At San Antonio, Texas on the 31st day of March, 1988, came on for consideration sua sponte the setting of the Debtor’s First Amended Disclosure Statement, it having come to the attention of the Court that, through no fault of the debtor, the notice of hearing with respect to the approval of the disclosure statement was not given by the clerk’s office and t...
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OPINION AND ORDER ON DEBTOR’S APPLICATION TO APPOINT AN “EXPERT” NUNC PRO TUNC AND MOTION FOR PAYMENT OF FEES Not long after this case was filed in 1984, Nelson T. Hensley (“Hensley”) was appointed the Chapter 11 Trustee. Not long after his initial involvement, he discovered that he needed help operating the Debtor’s oil and gas properties, so he asked Woodson Wayne Hardin (“Hardin”) to h...
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MEMORANDUM OPINION REGARDING POSSIBLE DISMISSALS OF CASES FOR FAILURE TO TIMELY FILE REQUISITE STATEMENTS The issue before the Court is whether certain cases should be dismissed for failure to timely file statements as required by applicable Bankruptcy Rules. Because each of these cases involve very similar facts and a common issue of law, this Court has determined to address these cases ...
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MEMORANDUM OPINION AND ORDER This action arises on appeal from a final order of United States Bankruptcy Judge William T. Bodoh, entered November 10, 1987, 79 B.R. 702. Debtors filed a joint Petition for Reorganization under Chapter 13 of the Bankruptcy Code. Society Bank of Eastern Ohio, N.A. (“Society”) has a first mortgage on debtors’ residence of twenty-eight thousand dollars ($28,000). A j...
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MEMORANDUM OPINION This is an action seeking the Court’s determination that an obligation of Debtor is not dischargeable pursuant to 11 U.S.C. Sec. 523(a)(2)(B). This is a core proceeding pursuant to 28 U.S.C. Sec. 157(b)(2)(I). On June 6, 1985, the Debtor applied for a Four Thousand & 00/100-rDollar ($4,000.00) loan with CREDITHRIFT OF AMERICA (“CTA”) in order to consolidate payment...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Trial on Complaint to Determine Dis-chargeability of Debt. At the Trial, the parties had the opportunity to present the evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the testimony, the documents which were admitted at Trial, and the arguments of counsel, as well...
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FINDINGS OF FACT, ISSUES OF LAW AND CONCLUSIONS OF LAW ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF DEBT This matter is before the Court following trial of a compláint filed by Greenwood Trust Company (“Greenwood”). The Court has jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this district. *758 This is a core...
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ORDER ON MOTION TO DISQUALIFY COUNSEL AND REQUEST FOR INJUNCTIVE RELIEF This matter is before the Court upon a motion, filed on behalf of Mount Vernon Plaza Communily Urban Redevelopment Corporation I, Mount Vernon Plaza Community Urban Redevelopment Corporation II, Mount Vernon Plaza Community Urban Redevelopment Corporation III, and Bry- *763 den Road Plaza, Inc., debtors i...
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OPINION AND ORDER ON OBJECTION TO CONFIRMATION This matter is before the Court on an objection to confirmation of the Chapter 13 plan proposed by debtor Robert C. Ashton. The objection, filed by Fifth Third Bank of Columbus (“Fifth Third”), was heard by the Court. The Court has jurisdiction in this matter under 28 U.S.C. § 1334(b) and the General Order of Reference entered in this di...
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DECISION AND ORDER DISMISSING ADVERSARY PROCEEDINGS FOR LACK OF JURISDICTION This matter is before the court upon a remand from district court to review the captioned cause and to make a determination of this court’s subject matter jurisdiction in view of post-Northern Pipeline jurisprudence and statutory enactments. I. PROCEDURAL HISTORY GWF Investment, Ltd. (“Debtor...
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This proceeding, which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Standing Order Of Reference entered by this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(F) — proceedings to determine, avoid, or recover preferences. Matter of Commercial Heat Treating Of Dayton, Inc., 80 B.R. 880, 888 (Bankr.S.D.Ohio ...
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Hamilton Bank of Upper East Tennessee (Bank), a secured creditor, seeks relief from the automatic stay of § 362(a)(5) of title 11 in order to obtain possession of a 1983 Toyota Tercel automobile owned by one of the debtors, Sharron Byrd Whitaker. 1 The Bank also seeks an allowance of attorney’s fees. Debtors, having continued to make voluntary payments to the Bank subsequent to the f...
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MEMORANDUM OPINION AND ORDER La Preferida, Inc. brings this action against Cervecería Modelo, S.A. de C.V. *796(“Modelo”) for breach of duties arising from a Distribution Agreement entered into between La Preferida and Cervecería Corona, Inc. (“Corona”). After removing this action to the Bankruptcy Court for the Northern District of Illinois, Modelo moved to transfer to the Bankruptcy Court for th...
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MEMORANDUM ORDER Currently before the Court is the motion of defendants R. Steven Polachek and Jay A. Schiller for leave to appeal under 28 U.S.C. § 158(a) and Rule 8003 of the Rules of Bankruptcy Procedure. Pola-chek and Schiller seek to challenge Bankruptcy Judge Thomas W. James' denial of their motion to recuse. Defendants do not indicate the statutory basis for their underlying motion to recus...
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MEMORANDUM AND OPINION FACTS This matter comes before the Court on the debtor’s objection to the claim of the Internal Revenue Service, (the “IRS”). The IRS has answered the objection, thus giving rise to a contested matter. See Advisory Committee Note to Bankruptcy Rule 3007. See also In re The Charter Co., 82 B.R. 144, 146 (Bankr.M.D.Fla.1988). The debtor has ...
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DECISION All parties are requesting a trial by jury on all issues raised in the complaint and in the counterclaim. The four causes of action in the complaint in this adversary proceeding comprise objections to discharge and the dis-chargeability of the plaintiffs’ claims and are founded upon: (1) § 727(a)(4); (2) § 727(a)(5); (3) § 523(a)(2)(A); and (4) § 523(a)(6). The two causes of...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW The debtor, Carol Bartsch (formerly known as Carol Meier), initiated this adversary proceeding pursuant to 11 U.S.C. § 523(a)(8) and Bankruptcy Rule 4007 seeking a determination as to the dischargeability of her contractual obligation to the Wisconsin Higher Education Corporation (WHEC). The debtor appears by Herman Friess and W...
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MEMORANDUM OF OPINION AND ORDER RE: DISCHARGEABILITY AND ORDER The matter before the Court is a complaint filed by Robert L. Crist and Linda S. Crist (Debtors) to determine the discharge-ability under 11 U.S.C. section 523(a)(1) of certain federal personal income tax liabilities and to determine the extent of their liability, if any, under 11 U.S.C. section 505. A hearing was held on Octo...
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MEMORANDUM OF DECISION AND ORDER Denying Injunctive Relief The matter before the Court is the complaint for injunctive relief filed by River Family Farms, Inc. (Debtor). The Court, having reviewed the testimony, pleadings, and briefs of counsel, makes the following Findings, Conclusions, and Order pursuant to Fed.R.Bankr.P. 7052. This matter is a core proceeding under 28 U.S.C. §...
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MEMORANDUM AND ORDER Re: Avoidance of Liens The matter before the Court is Marian Hansen’s (Debtor) Motion to Avoid the Farmers Home Administration’s (FmHA) Liens on certain property claimed exempt pursuant to Iowa Code § 627.6(12) (1987). The Court, having reviewed the evidence and arguments of counsel, now makes the following Findings of Fact, Conclusions of Law, and Orders pursuant to ...
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ORDER ON OBJECTION TO PLAN At the preliminary hearing on confirmation of plan, held in Des Moines, Iowa, Metropolitan Life Insurance Company (Metropolitan) disputed the debtors’ treatment of disposable income. Anita L. Sho-deen, appeared on behalf of the debtors and F.L. Burnette, II, appeared on behalf of Metropolitan. FACTUAL BACKGROUND The debtors sought protection under Chap...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This matter is before the Court on the Trustee’s Objection To The Debtor’s Schedule Of Exempt Property (hereinafter the “Trustee’s Objection”). The issues before the Court involve the extent to which a debtor may claim as exempt property a mobile home which has not been converted to realty. JURISDICTION This Court has jurisdiction over the parties...
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MEMORANDUM AND ORDER In 1983, Pamela J. Dunbar McCune, debt- or herein, purchased a 1983 fiberglass boat, boat trailer, and outboard motor, financing the purchase through a loan secured by a promissory note in favor of American Bank of Raytown. At the time she executed the note, debtor also signed a document entitled “Security Agreement,” which stated in relevant part: I give you a security i...
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ORDER REINSTATING CHAPTER 7 PROCEEDINGS; GRANTING CREDITORS 30 DAYS IN WHICH TO OBJECT TO DISCHARGE OR FILE NONDISCHARGEABILITY COMPLAINTS, OR BOTH; AND DIRECTING THE CLERK OF THE BANKRUPTCY COURT, IN THE ABSENCE OF ANY TIMELY-FILED OBJECTION TO DISCHARGE, TO PROCESS THIS CASE TO DISCHARGE This court formerly issued its written order dismissing the within chapter 7 proceedings as a “subst...
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MEMORANDUM OPINION This adversary action by the Trustee seeks to recover an alleged preference paid by debtor to defendant for 40,000 pounds of fescue seed, and raises the ever troublesome (since 1984) question of how long after delivery can payment be made and still be considered “made in the ordinary course of business or financial affairs of the debtor and the transferee; and made according to ...
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OPINION Before JONES, ASHLAND and MOOREMAN, Bankruptcy Judges. FACTS The appellant, Richard Dullanty, is an attorney licensed to practice in the state of Washington. In early 1986, Dullanty became in-house counsel for the debtor, Selectors, Inc. Selectors was not in bankruptcy at that time. Dullanty’s employment by Selectors was governed by an employment contract executed on February 20, 19...
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MEMORANDUM OF DECISION This contested matter comes before the Court on the U.S. Trustee’s Motion to Dismiss pursuant to 11 U.S.C. § 707(b). A hearing was held on March 18, 1988. This Memorandum of Decision incorporates the Court’s Findings of Fact and Conclusions of Law. BACKGROUND On September 10, 1987, Frank Gaskins and Debra Ann Gaskins (“debtors”) filed a voluntary petition under Chapte...
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MEMORANDUM OPINION AND DECISION The debtors, John B. and Linda K. Sohra-koff, filed a chapter 12 petition on November 4, 1987. Creditor, Feather River Production Credit Association (FRPCA), brings the present motion for relief from the automatic stay or dismissal. The motion was argued orally on March 7, 1988 and submitted. JOHN D. BESSEY, ESQ., of Hefner, Stark & Marois repres...
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MEMORANDUM OPINION AND DECISION FACTS Prior to the filing of their chapter 13 petition, Ray D. and Melody A. Paul had two bank accounts, one established at Placer Savings and Loan and the other at the Bank of Alex Brown. On December 8, 1987, the California State Board of Equalization (Board) served notices of levy on the two banks pursuant to CaLRev. & Tax Code sec. 6703. 1 ...
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MEMORANDUM ORDER The Trustee, represented by attorney H. James Magnuson, requests the debtors comply with the provisions of 11 U.S.C. § 521(2)(A) and (B). The debtors object on the grounds: 1. The trustee is trying to force the debtors to reaffirm a debt to M & I Bank of Adams-Friendship; 2. The debtor has already complied with § 521(2)(A) and (B); 3. The action of the trus...
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MEMORANDUM OPINION AND ORDER The debtor appeals from an order dismissing its voluntary Chapter 11 petition. The bankruptcy judge determined that the Colorado Industrial Bank of Loveland is an industrial bank which is ineligible to be a debtor under 11 U.S.C. § 109(b)(2), and even if the bank were eligible to file, dismissal is appropriate under 11 U.S.C. § 305 because the interests of cre...
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OPINION AND ORDER THIS MATTER comes before the Court on Wayne C. Granger and Winifred M. Granger’s (“Applicants”) Motion for Relief from the Automatic Stay. The Applicants wish to proceed and litigate against Donald Lee Harris (“Debtor”) in state court to determine the Debtor’s liability in a real estate transaction and, if successful, collect any judgment from the Colorado Real Estate Re...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Defendant’s Motion to Dismiss Plaintiff’s Complaint and for Award of Attorneys’ Fees (“Motion to Dismiss”). The Defendant’s Motion to Dismiss was heard *865 in Open Court on the date set for trial in the adversary proceeding. Defendant and Defendant’s counsel were present for the scheduled trial and at the...
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MEMORANDUM OF DECISION This matter is before the Court in this chapter 11 proceeding on the Request for Abandonment and Relief from the Automatic Stay filed by the Ninth District PCA (hereinafter “PCA”) and a Brief in Response to such Request filed by the Trustee, Joseph I. Wittman (hereinafter “Trustee”). Specifically, this Court must determine the extent of a lien held by PCA to entitlements ...
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ORDER The Prudential Insurance Company of America has moved to dismiss this petition because the debtors are also debtors in another case currently pending in this district. It appears that the first case was filed in May 1987 under Chapter 11 after Prudential had obtained a judgment foreclosing its lien on debtors’ property. In September 1987 an order was entered directing that...
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FINDINGS OF FACT AND OPINION This is the third Opinion 1 written by this Court in this Adversary Proceeding, which has been pending since October 11, 1983, and the case is now being heard on the mandate of the Court of Appeals in the case of John P. Whittington, Trustee v. Mary P. Spain, et al, BK A.P. No. 83-1122, ruling that the debtor’s wife had a destructible rig...
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MEMORANDUM OPINION THIS MATTER came on to be heard upon the confirmation of the joint debtor’s Chapter 12 plan of reorganization. The trustee challenged the debtor’s right to make direct payments to impaired secured creditors rather than submitting the payments to the trustee for distribution under the Chapter 12 plan. Having reviewed the statutory and case authority on this issue, this Court...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS ADVERSARY proceeding came on for hearing on January 5, 1988 upon the Complaint for Turnover filed by the Chapter 7 Trustee, Stephanie Cates-Harman, against the Debtor, Marsha Stage. The Trustee seeks a determination that a diamond engagement ring worn by the Debtor is subject to administration as an asset of the estate and, accord...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon complaint seeking a revocation of the defendant, Stanley P. Putnam, Jr.’s, bankruptcy discharge predicated upon 11 U.S.C. § 727(d)(1) and (2). A trial of this cause was held on March 10, 1988, at the conclusion of which the Court instructed the parties to submit briefs in support of their arguments. Upon the eviden...
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ORDER THIS CAUSE has come before the court upon the appeal by appellants British Aviation Insurance Company, Ltd., and Michael Valerie Spratt and Charles David Dalrym-ple Gilmour, as designated agents for and on behalf of Underwriters at Lloyds of London (hereinafter referred to collectively as “British Aviation”). British Aviation appeals the orders of the United States Bankruptcy Court entered ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF ORDER AUTHORIZING AND APPROVING SETTLEMENT OF VALUE VACATIONS LITIGATION AND RELATED CLAIMS AGAINST ARROW THIS MATTER was heard by the Court on March 1, 1988 at 10:30 a.m. on the Motion of Arrow Air, Inc. and the Committee of Unsecured Creditors for Approval of Settlement of Value Vacations Litigation and Related Claims Against Arrow. The Co...
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ORDER ON FEE APPLICATION OF S.E. KREISBERG The application (CP 233) of Steven E. Kreisberg for $2,000 as an administrative expense under 11 U.S.C. § 507(a)(1) and § 503(b)(1)(A) was heard on March 21. The application, which is for compensation for legal services rendered to the debtor corporation in a criminal proceeding in the district court, is denied. Counsel was appointed by a Magistrate under...
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MEMORANDUM DECISION This adversary proceeding, which was then at issue, was transferred here March 4 from New York on defendants’ motion. It was tried April 5. Plaintiff, a Florida corporation, is a chapter 11 debtor-in-possession in a New York bankruptcy filed Christmas Eve, 1986. It seeks $100,000 in actual and punitive damages from defendants upon the ground that a truck and a con...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court upon the Complaint of the liquidating trustee of the Miami Center Liquidating Trust (the “trust”) against the United States of America (the “government”), the Bank of New York (the “bank”), Theodore Gould (“Gould”), Miami Center Limited Partnership, Miami Center Corporation, Chopin Associates and Holywell Corporat...
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ORDER DENYING MOTION FOR ABANDONMENT When this chapter 11 case was filed June 3, 1987, the debtor corporation held a 50% interest in Corky-Marcus, Ltd., a Florida limited partnership. The remaining 50% interest was held jointly by A.B. Marcus and his wife. Florida has adopted the Uniform Partnership Act, (effective January 1, 1987) which provides that the bankruptcy of a partner effects disso...
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ORDER ON MANDATE The plaintiffs’ motion (CP 126) to require the Creditor Trustee 1 to pay them $11,086,-854 forthwith was heard April ll. 2 The Court of Appeals has held in this case that plaintiffs are “entitled to recover the traced assets of $6,488,011”. In re General Coffee Corp., 828 F.2d 699, 707 (11th Cir.1987). Plaintiffs are now also seeking $4,598,-843 interest on their judgme...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Eagle National Bank of Miami (“Eagle Bank”) to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments of counsel, and bei...
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ORDER Appellant seeks review of two bankruptcy court orders denying his application for approval of employment of counsel for a special purpose pursuant to 11 U.S.C. § 327(e). By order dated April 20, 1987, Bankruptcy Judge Robinson denied appellant’s application for approval of employment of an attorney for purposes of representing him in a state court medical malpractice action in which he was t...
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ORDER Presently before the Court is plaintiff-trustee’s motion for partial summary judgment upon Count III of his complaint. This count seeks recovery of certain funds which were subjected to tax assessments and levy by defendant United States of America, on behalf of its agency the Internal Revenue Service (“IRS”). Plaintiff alleges that these actions constitute preferential transfers avoidable ...
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MEMORANDUM OF OPINION AND ORDER Plaintiff-Debtor filed the above-styled adversary Complaint seeking certain relief against the Defendants. The Complaint contained five counts. In a Judgment entered March 26, 1987, the Court found for the Defendants on all counts. Plaintiff-Debtor appealed this holding, and the District Court remanded the proceeding on Count III of the Complaint to this Co...
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OPINION AND FINAL ORDER This matter was remanded to the Bankruptcy Judge on August 28, 1986, to reconsider whether the default judgment entered in favor of the Trehans against Von Tarka-nyi by the Bankruptcy Court on September 10, 1982, in the amount of $450,000 plus interest is void and whether there was a fraud on the Bankruptcy Court requiring that the judgment be set aside. The sad de...
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DECISION ON MOTION FOR PRELIMINARY INJUNCTION New York Life Insurance Company (“NYL”) has commenced an adversary ac *935 tion against The Chase Manhattan Bank, N.A. (“Chase”) and the debtors, Texaco Inc., and Texaco Capital Inc. for reimbursement of its attorneys’ fees, costs and expenses in having assisted in preserving the rights of a class of noteholders. By this adversary...
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OPINION A. INTRODUCTION The instant adversarial proceeding presents, on its surface, a rather commonplace sort of matter: a Chapter 13 debtor challenging the Proof of Claim of his mortgage company on the grounds that (1) The Mortgagee sought to impose unwarranted attorney’s fees and costs arising out of a pre-petition foreclosure suit; and (2) The *944 Mortgagee is subje...
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OPINION A. INTRODUCTION The matters before the court, while taking the familiar form of an adversarial case brought by a Debtor-mortgagor to attack a Proof of Claim of a mortgagee, here the UNITED STATES OF AMERICA, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (hereinafter referred to as “HUD”), on the basis of 11 U.S.C. §§ 506(a), (d) and a counter-motion in the main case by the mort...
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MEMORANDUM OPINION Plaintiffs in this adversary proceeding have filed a five count complaint against three defendants, one of whom is the trustee. Two of the defendants, MNC Commercial Corporation and Maryland National Bank have filed a joint motion to dismiss, pursuant to Bankr.Rule 7012(b), raising questions concerning subject matter jurisdiction as well as standing. This motion has bee...
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MEMORANDUM OPINION This dispute involves the debtors’ requests for orders pursuant to 11 U.S.C. § 554 requiring the trustee to abandon the properties which serve as their residences. 1 The debtors claim that their respective estates have no equity in the properties, so that continued administration will be “burdensome to the estate” or “of inconsequential value and benefit to t...
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MEMORANDUM OPINION Before me is the motion of Aaron M. Lavin, A.M. Lavin Machine Works, Inc. and Lavin Centrifuge, Inc. requesting the appointment of a trustee to operate or manage this chapter 11 debtor, pursuant to 11 U.S.C. § 1104. Movants contend that the prepetition and postpetition activities of the debtor’s principal and sole shareholder, in both establishing the corporation Equip-...
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MEMORANDUM OPINION By previous order, the Court has denied the Debtor’s Motion for Ex Parte Order Directing Examination of Shareholder. The Debtor’s attorney sought to examine a shareholder and former officer of the debt- or during the section 341 first meeting of creditors. The Court enters this opinion because the issue here is of general importance. The purpose of the first meeting of cr...
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MEMORANDUM The debtor seeks confirmation of its “Amended Plan Of Reorganization” (Plan) filed August 6, 1987. Union Planters National Bank (Union Planters), holder of the first mortgage indebtedness encumbering the debtor’s real property in Gatlinburg, Tennessee, filed “Objections To Confirmation” on September 25,1987. A hearing on confirmation was held October 1, 1987. 1 Thi...
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ORDER ON OBJECTIONS TO PLAN On December 3, 1987 a preliminary hearing on confirmation of plan was held in Des Moines, Iowa. Among those present at the hearing were Dallas J. Janssen, appearing on behalf of the debtors and Kevin R. Query, Assistant U.S. Attorney, appearing on behalf of the Farmers Home Administration (FmHA). The parties dispute whether the FmHA has an interest in certain c...
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MEMORANDUM OF FINDINGS OF FACT AND CONCLUSIONS OF LAW SUPPORTING JUDGMENT REFORMING AND VACATING FORMER JUDGMENT DENYING DEFENDANTS’ DISCHARGES AND INSTEAD GRANTING DEFENDANTS’ DISCHARGES IN BANKRUPTCY This court formerly entered its final judgment on Octobér 24, 1986, denying the defendants’ discharges in bankruptcy. The court held that the defendants had intentionally disobeyed its form...
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