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Opinions in br Volume 88

*2 ORDER The Clerk of this Court has requested guidance as to whether to accept for filing an involuntary petition under Chapter 7 of the Bankruptcy Code against “the President of the United States of America, in his Official Capacity as Commander-in-Chief, Armed Forces of the United States.” The petitioner claims that he is owed military pay due him since 1943, totaling (with in...
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*6 MEMORANDUM OF DECISION INTRODUCTION This adversary proceeding was commenced on June 16, 1987 when the Chapter 7 Trustee filed a four count complaint. Count I seeks a determination that one quarter (25%) of the debtor’s account under his Profit Sharing Plan is property of the estate pursuant to section 541 of the Bankruptcy Code. Count II hinges on the Trustee’s success on...
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MEMORANDUM OPINION This adversary proceeding involves a Complaint by a bankruptcy trustee to determine the validity, priority, and extent of a lien. The Complaint raises the issue *10whether a certain mortgage deed was properly executed and acknowledged by the debtor in accordance with the law of the State of New Hampshire, such that the trustee has no power to avoid a lien by defendant Laconia S...
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OPINION AND ORDER This is an appeal from an order entered by the bankruptcy court which modified the automatic stay so that unsecured creditor Tintillo Franchise & Associates, Inc. (Tintillo) would be able to proceed with an ongoing unlawful detainer proceeding against debtor in state court. The debtor, Amaris Corporation (Amaris), has appealed from the order modifying the automatic stay. First, ...
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DECISION Before the Court is the Motion for Rehearing filed by Andrew Richardson, Esq., attorney for the debtor, who requested and was allowed further opportunity to argue in support of his application for compensation, which was reduced from $28,100 to $23,000. Although entitled “Motion for Rehearing,” said pleading, and memorandum in support thereof, appears to be a combined/altern...
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ORDER After review and over objection the Bankruptcy Judge’s decision is adopted and approved. Plaintiff’s argument notwithstanding, the argument is appropriately considered a core proceeding. In view of the previous dismissal of plaintiff’s RICO claim and in view of the Bankruptcy Judge’s decision herein adopted and approved, it is further held that plaintiff’s Motion to Revoke Referral to the...
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*22MEMORANDUM-DECISION, FINDINGS OF PACT, CONCLUSIONS OF LAW AND ORDER On December 10, 1987, Northeast Dairy Cooperative Federation, Inc. (“NEDCO”) filed an objection to the allowance of the Second Amended Proof of Claim (“Proof of Claim”) filed by the Trustees of the Industry and Local 338 Pension and Welfare Funds (“Funds”), as modified by correspondence from the Fund’s Counsel, Cohen, Weiss & ...
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MEMORANDUM AND DECISION On January 7, 1988, a Motion was filed by the creditor, Mr. Bares, seeking relief from the automatic stay to permit foreclosure of a mortgage against the Debtors’ residence. The Motion was returnable January 27, 1988, the date set for confirmation of the Debtors’ Chapter 13 Plan as well. As of the return date, no responding papers were filed with the Court or served on the ...
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MEMORANDUM OPINION AND ORDER Debtor appeals as of right pursuant to Bankruptcy Rule 8001 from an order of the United States Bankruptcy Court entered in case number 87B-12318 (HCB) on February 19, 1988 by U.S. Bankruptcy Judge Howard C. Buschman III. That order was based on Judge Buschman’s oral ruling rendered after a hearing held February 8, 1988 on two creditors’ motions to dismiss the debtor...
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MEMORANDUM OPINION Chapter 11 debtor, Carl H. Neuman (“Neuman”) appeals from the July 24, 1987 decision of Bankruptcy Judge Prudence B. Abram holding that trustee James L. Garrity (the “Trustee”) is authorized under New York law to operate the Sarah R. Neuman Nursing Home (“SRN”) and that Neuman may no longer retain control of SRN’s operation, 75 B.R. 966. For the reasons set forth below, the deci...
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DECISION ON MOTION TO TRANSFER VENUE The ten trustees (Trustees) of the Central Pension Fund of the International Union of Operating Engineers and Participating Employers request the transfer of the Chapter 11 case of Pavilion Place Associates (the Debtor) from the United States Bankruptcy Court for the Southern District of New York to the United States Bankruptcy Court for the District o...
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Semel, Patrusky & Buchsbaum (“SP & B”), as counsel to certain merchant seamen who have filed claims for damages against United States Lines, Inc., seeks an order, apparently pursuant to 11 U.S.C. § 503(b)(3) and (4) (1986), awarding them compensation of $84,720 as attorneys for creditors who have made a substantial contribution to the Bankruptcy case of United States Lines’ affiliate, McLean In...
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OPINION AND ORDER This is an appeal from an August 10, 1987 order of the United States Bankruptcy Court for the District of Vermont, 76 B.R. 358, granting debtor’s motion to determine tax liability and ordering the Internal Revenue Service to apply all funds received from the debtor and the Chapter 7 Trustee to the debtor’s trust fund liabilities. This Court has jurisdiction over this app...
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BENCH DECISION REGARDING DOCKET #’s 441 and 448 The issue before the court is whether a proposed settlement on an objection to a proof of claim should be approved. Century objected to the claim of Latham Four on the ground that its claim exceeded the dollar amount permitted under 11 U.S.C. § 502(b)(6). Century and Latham have reached an agreement which reduces the amount of Latham’s claim from $14...
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OPINION The Court considers the Trustee’s motion for an order directing the debtor to turnover funds held by the debtor in two Individual Retirement Accounts. This motion presents two issues for the Court to determine. The first issue is whether these Individual Retirement Accounts constitute property of the estate under 11 U.S.C. § 541(a) or excluded by 11 U.S.C. § 541(c)(2). Upon a find...
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ORDER AND NOW, this 28 day of March, 1988, upon consideration of the Recommendation and Memorandum Opinion of the Bankruptcy Court, IT IS ORDERED that the findings of fact and conclusions of law submitted by the Bankruptcy Court are ADOPTED by the District Court. JUDGMENT is ENTERED in favor of the plaintiff and against the defendant in the amount of $4000.00. *53 The M...
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MEMORANDUM In this appeal from an Order of the Bankruptcy Court dated November 20, 1987, plaintiff-appellee Sheldon Gurst (“Gurst”) has filed a motion pursuant to Bankruptcy Rule 8002(b) to dismiss the appeal asserting that the failure of defendant-appellant Philadelphia Consumer Discount Company (“PCDC”) to file a new motion of appeal after the Bankruptcy Court’s denial of Gurst’s motion for rec...
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MEMORANDUM In 1977, appellant/creditor Rhoda Gersh-man (“creditor”) entered into a series of business dealings with appellee/debtor Hannah Waldman (“debtor”). Subsequently, between 1977 and July 1978, creditor filed against debtor a series of judgments by confession in the Court of Common Pleas for Philadelphia County. On December 4, 1985, debtor filed a Chapter 13 petition with the Bankr...
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MEMORANDUM On January 11, 1983, while in Colorado Springs, Colorado, debtor-appellee Richard Adams Gaebler (“debtor”) fired his gun at and shot creditor-appellant Gary Francis Blackman (“creditor”) five times. Debtor was arrested and charged with one count of attempted murder in the second degree in violation of Colorado Revised Statute (“C.R.S.”) Sections 18-2-101 and 18-3-103, and two c...
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MEMORANDUM OPINION Hill Financial Savings Association (“Hill”) has mounted a dual attack on Earl Ziegler’s (“debtor”) chapter 13 case by filing objections to confirmation and by requesting relief from the automatic stay. Because the keystone of debtor’s plan is a contingent, unliquidated lawsuit which is also debtor’s offer of adequate protection, we find that the funding of the plan is t...
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MEMORANDUM OPINION Presently before the court is a motion filed by debtor, BRI Corporation, d/b/a Jo Harper, The Great Factory Store and GFS for Men (“debtor”), to reduce the proof of claim filed by O/H Sportswear, Inc. (“O/H”) from $67,528.41 to $45,691.41. O/H filed an objection to debtor’s motion, contending that it has priority to the proceeds from the clothing it supplied to debt- or...
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MEMORANDUM OPINION Before the Court are numerous Motions and an Adversary proceeding related to the above-captioned Debtor, to-wit: 1. Rescheduled Rule to Show Cause Why Case Should Not Be Dismissed For Failure to Complete Filing; 2. Motion to Dismiss Under 11 U.S.C. § 305, filed by John M. Silvestri, State Court Receiver; 3. Motion to Convert to Chapter 7 or to Appoint a Chapter 11 Trust...
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OPINION This matter came before the court on First Seneca Bank’s (“First Seneca”) objections to the plan of reorganization filed by Crane Automotive, Inc. (hereinafter “Crane” or “debtor”). An appropriate order confirming the plan over First Seneca’s objections was entered on December 11, 1987. This opinion constitutes this court’s findings of fact and conclusions of law as required ...
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MEMORANDUM OPINION In this Chapter 11 case the Debtor has sought to sell all of its operating assets before it has had a plan of reorganization confirmed, and in fact before it has even filed a plan. The Debtor has advised the Court that it intends to file a plan of liquidation within the exclusive period provided to the Debtor by 11 U.S.C. Section 1121. The Debtor, Naron & Wagner, C...
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MEMORANDUM OPINION AND ORDER DENYING DEBTORS’ CLAIM OF EXEMPTION The matter before the court is the “Objection to Debtors’ Claim of Exemptions” filed on May 4, 1988, by David W. Boone, the chapter 7 trustee. A hearing was held in Raleigh, North Carolina, on June 27, 1988, which was attended by the trustee and the attorney for the debtors. The attorney for the debtors reported that she *91had not p...
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ORDER DENYING MOTION FOR JURY TRIAL This matter is before the Court upon the defendant’s Motion for trial by jury of an adversary proceeding to avoid preferential transfers. This adversary proceeding was instituted by the trustee to recover certain alleged preferential transfers from the defendant. The defendant, by its Answer, denied that the transfers were preferential, and, within apt time, mo...
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MEMORANDUM OPINION FINDINGS OF FACT This matter comes before the Court on the application of Williams, Mullen, Christian & Dobbins, P.C., (“Applicant”) as counsel for the Official Committee of Unsecured Creditors for compensation in the amount of $3,212.50 1 in attorneys’ fees and $159.66 in out-of-pocket expenses incurred by the firm. The Applicant was employed under 11 U...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Investors Savings Bank (“Investors”), by counsel, to dismiss the above-styled proceeding. Under the terms of the debtor’s plan confirmed by this Court on October 2, 1987, the debtor was to make post-petition monthly payments of principal and interest directly to Investors. The debtor has not made any of these direct post-pet...
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OPINION The complaint of the trustee, William G. McClanahan, seeks to avoid two preferential payments by the debtor to defendant, Lakeside National Bank. Defendant agrees that the payments were preferential transfers described in Bankruptcy Code section 547(b), but maintains that the transfers were immune from the trustee’s avoidance powers under section 547(c)(2) as payments in the “ordi...
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*102 MEMORANDUM OPINION This is a bankruptcy appeal. 1 It holds that, with respect to priority tax claims filed in bankruptcy proceedings, prepetition interest on those priority tax claims should also receive priority treatment. 2 1. The Facts On October 5, 1984, the debtor filed a Chapter 13 bankruptcy petition. Thereafter, the Internal Reven...
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MEMORANDUM OPINION This bankruptcy appeal presents one issue: whether — for purposes of setting aside preferential transfers made within 90 days of the filing of bankruptcy, 11 U.S.C. § 547(b) — a payment made by check takes place (i) when the cheek is delivered to the creditor, or (ii) when the check is actually honored by the bank on which it is drawn. This opinion holds that, unde...
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MEMORANDUM OPINION AND ORDER On January 4, 1988, the court held a hearing on the Chapter 7 trustee’s motion to determine the reasonableness of a pre-petition retainer the debtors Bernard and Kathleen Leff gave to their attorney. The trustee and the Leffs were represented by counsel at the hearing. After entertaining argument by counsel, the court took the motion under advisement. The Leff...
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MEMORANDUM OPINION ON MOTION TO LIFT STAY This opinion involves the continuing issue of whether class proofs of claim may be filed in a bankruptcy proceeding. The issue comes to the Court in the form of a Motion to Lift Stay filed by a class of plaintiffs in a suit currently under way in an Illinois U.S. District Court. This Court finds that cause for lifting of stay has not been shown. ...
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MEMORANDUM OPINION AND ORDER Carroll Byron Powell was in the jewelry business. He owned 90% of two eompa-nies, Fine Jewelry and Fine Diamond. On December 16, 1986, both he and his companies filed bankruptcy under Chapter 7. Powell and his companies had been longtime customers of Central Park Bank and had a credit line secured by inventory, equipment, and receivables. This bank was ac...
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MEMORANDUM OPINION On the 3rd day of May, 1988, the Court held a hearing on John R. Sholund’s Motion to Modify Stay to Continue State Court Suit. After hearing the evidence and argument of counsel and considering the pleadings and briefs filed by the parties, the Court enters this opinion as its findings of fact and conclusions of law. The facts, while complicated legally, are fairly...
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ORDER REGARDING MOTION TO REOPEN CHAPTER 7 BANKRUPTCY This matter comes before me upon the Motion of Marilyn Karamitsos to reopen her Chapter 7 bankruptcy case. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157 and the Order of Reference of the District Court. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). Debtor has moved und...
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MEMORANDUM-OPINION This case is before the Court on the parties’ crossmotions for summary judgment pursuant to Fed.R.Civ.Pro. 56 and Fed.R.Bankr.Pro. 7056. Both parties’ briefs in support of their position have been filed with the Court and reviewed. For the reasons set forth below, we sustain the plaintiffs’ motion for summary judgment and overrule the defendants’ motion for summary judg...
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OPINION AND ORDER This matter is before the Court on an appeal from the bankruptcy court. Appellant Commercial Oil Service appeals from the bankruptcy court’s order dismissing appellant’s voluntary Chapter 7 bankruptcy petition. 58 B.R. 311. Appellant has filed a brief in support of this appeal. Appellees the State of Ohio, United States of America, and Philip Joelson, interim trustee, have fil...
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MEMORANDUM OPERION AND ORDER This cause comes before the Court on Cross Motions for Summary Judgment. *130 The Court has reviewed the Memoranda and affidavits, as well as the entire record in this case. Based on that review, and for the following reasons, the Court finds that Plaintiffs Motion for Summary Judgment should be Denied, and Defendants’ Motion for Summary Judgment should be Denied....
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FINDING AS TO APPLICATION FOR AWARD OF ATTORNEY FEES This matter comes before the court upon the Application for Award of Attorney Fees against Bank One of Cleveland, N.A. and Bank One of Akron, N.A., under 11 U.S.C. § 362(h), filed on April 6, 1988 by Mack D. Cook, II, attorney for the debtor in the matter of the Motion for Relief from the Automatic Stay filed by Bank One of Cleveland, N.A. and ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Hearing on the Objection of F & J Farm Service, Inc. to Debtors’ Claim of Exemptions and the Objection of F & J Farm Services, Inc. to Debtors’ Motion to Avoid Liens of Central Trust Co. and F & J Farm Services, Inc. After the Hearing, the Court allowed the parties to file Briefs setting forth additional arguments direct...
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MEMORANDUM OPINION This matter comes before the Court on the Motion filed by National Union Fire Insurance Company (“NUFIC”) seeking a determination that the instant adversary action is a non-core proceeding. The Motion also asks the Court to refer the case to the District Court so that a jury trial may be conducted. 1 Baker & Getty Securities, Inc. (“BGS”) applied for an NAS...
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MEMORANDUM- OF OPINION AND ORDER This matter is before the Court upon the Complaint of the Trustee objecting to discharge of the above-styled Debtors. A trial was held with due notice having been made upon all parties entitled thereto. After reviewing the testimony, admitted evidence, and the record of this matter, the following constitutes the Court’s findings and conclusions pursuant to Rule ...
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MEMORANDUM OP OPINION AND ORDER This matter is before the Court upon the Complaint of Richard A. Baumgart, Trustee in Bankruptcy (Trustee), to recover a postpetition transfer and to recover preferences from the Defendant National City Bank (NCB). To resolve this adversary proceeding, the parties have submitted the matter on their respective briefs.1 Pursuant to Rule 7052, Bankr.Rules, the followin...
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ORDER This matter is before the Court upon identical Motions to Dismiss by defendants BancOhio National Bank and Charles Gross (Docs. 6 and 8). Defendants base their motions on the following grounds: (1) as against John and Marilyn Leonard for lack of standing on all claims asserted in their complaint; and (2) as against the remaining plaintiff Raymond L. Folz, on his claims brought under Secti...
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OPINION AND ORDER ON OBJECTION TO THE CLAIM OF COLUMBUS MORTGAGE, INC. This matter is before the Court on the debtors’ objection to the claim of Columbus Mortgage, Inc. filed in the amount of $47,-338.23, and listed as claim number 9. Co *152 lumbus Mortgage timely filed its opposition to that objection, and the matter came on for hearing on July 13, 1987. The Court has ...
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88 B.R. 154 (1988) In re Darnell G. (Gwinn) KEATON dba the Refreshment Warehouse, Debtor. Bankruptcy No. 2-85-02522. United States Bankruptcy Court, S.D. Ohio, E.D. February 10, 1988. Mitchell D. Cohen, Columbus, Ohio, for debtor. Albert R. Ritcher, Asst. U.S. Atty., Columbus, Ohio, for U.S. ORDER DENYING CONFIRMATION OF CHAPTER 11 PLAN BARBARA J. SELLERS, Bankruptcy Judge. This matter is before...
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ORDER DENYING MOTION FOR STAY OF PROCEEDINGS AND SETTING TRIAL DATE This matter is before the Court upon a motion filed on behalf of plaintiff Cardinal Casualty Company (“Cardinal”), seeking a stay of certain actions against Cardinal which are pending in federal or state courts in Louisiana and Wisconsin. The motion was opposed by Larry E. Staats, the duly-appointed trustee in bankruptcy, and w...
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ORDER ON MOTION FOR CONTEMPT This matter is before the Court upon a motion filed on behalf of Jeffrey and Regina Roush, requesting this Court to cite Bank One, Columbus, NA (“Bank One”) for contempt. The motion was opposed by Bank One and 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 dist...
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ORDER OVERRULING OBJECTIONS TO CONFIRMATION This matter is before the Court upon two objections to confirmation of the Chapter 13 plan proposed by Allard and Marian Compton. The objections, filed by Bank One, Columbus, N.A. (“Bank One”) and General Motors Acceptance Corp. (“GMAC”) were heard by the Court and were taken under advisement. The Court has jurisdiction in this matter under 28 U.S.C...
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ORDER ON FIRST AMENDED DISCLOSURE STATEMENT I. Preliminary Considerations This matter is before the Court upon the request of Scioto Valley Mortgage Company (the “Debtor”) for approval of its First Amended Disclosure Statement (“Disclosure Statement”).' Objections to the Debt- or’s request for approval have been filed by William G. Hayes, Jr., Trustee for Beacon Securities, Inc. and its con...
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ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Gasearch, Inc., Steven R. Yrable and Robert J. Schuster, (collectively “Defendants”), jointly filed a motion seeking summary judgment in this adversary proceeding. Plaintiff Larry E. Staats, trustee for the bankruptcy estate of Sheldon L. Turrill (“Trustee”), opposed that motion. For reasons stated below, the Court finds that Defendants’ motion...
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MEMORANDUM I In these consolidated preference actions, 11 U.S.C.A. § 547 (West 1979), plaintiff is the liquidating trustee of a trust established under the chapter 11 modified plan of reorganization confirmed by the court in the Southern Industrial Banking Corporation (“SIBC”) case. Defendants, the former holders of investment certificates sold by SIBC, received full or partial payme...
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*178 ORDER The court has entered a memorandum opinion and an order concluding that this adversary proceeding should be remanded to state court. The question is how to proceed in light of Rule 9027(e). Rule 9027(e) makes the bankruptcy court’s decision on a motion to remand subject to de novo review by the district court. De novo review is not an appeal by a party to the proc...
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MEMORANDUM ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant, The American Insurance Company . (American), filed a motion for partial summary judgment on March 25, 1988. 1 By its motion American seeks dismissal of Counts II and IV of plaintiffs’ complaint, each of which prays for a determination of liability against American pursuant to Tenn.Code Ann. § 56-7-105(a) (...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT ON PLAINTIFF’S MOTION FOR ABSTENTION Introduction This matter comes before the Court on the motion of the debtor, Nathaniel Williams, asking the Court to exercise its discretion and abstain from hearing this adversary proceeding under 28 U.S.C. § 1334(c)(1). 1 This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) 2 . Findings of Fa...
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OPINION The issue before the Court is whether the Debtor’s interest in the corpus of a spendthrift trust, which is to be distributed to the Debtor at age 50 and is not subject to any spendthrift provisions, is part of the bankruptcy estate. The Debtor, Joseph Newman, is the beneficiary of two irrevocable inter vivos trusts created by his parents, Joseph and Beatrice Newman, in Decemb...
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OPINION This matter is before the Court on a Petition for Reclamation (Lift of Automatic Stay) filed by Plaintiff American Way Rentals against the Debtor George Fogel-song, and the Debtor’s Counter-Petition for Contempt for Violation of the Automatic Stay. A hearing was held on January 27, 1988. The relevant facts are as follows: The Plaintiff is in the “rent to own” furniture business. On va...
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MEMORANDUM OPINION Before the Court is the Complaint for Turnover and Avoidance of Statutory Lien filed by the debtors, Abner Scott, Jr. and Nettie Scott, against the defendant, Jerry Beckham [Becker] 1 d/b/a J & S Automotive in the above adversary proceeding. The defendant, Beckham, filed an answer denying the debtors’ turnover claim and the statutory lien avoidance claim. The...
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MEMORANDUM OPINION Before the Court is the Motion to Reopen Chapter 7 case filed by the debtor, Vernon Rhodes d/b/a Rhodes Home Remodeling and Rhodes Home Repair. The debtor seeks to reopen his case to amend his schedules to add a creditor, Ernest Bow-den, and have any debts or claims of Bow-den discharged. Bowden has filed an objection to the reopening of the case. The debtor and Bowden disput...
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MEMORANDUM OPINION Before the Court is the Motion to Amend Order filed by Heckathorn Construction Co., Inc. (Heckathorn) in the above contested matters. Heckathorn has asked the Court to amend its Order entered March 30, 1988. On March 30, 1988, this Court ordered, inter alia, that First National Bank of Springdale (First National) did not waive and is entitled to exercise its ...
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ORDER — MOTION FOR ORDER REQUIRING MARSHALING AND MOTION FOR ORDER REQUIRING TRUSTEE TO ABANDON PROPERTY On March 21, 1988, a hearing was held on motion for order requiring marshaling and motion for order requiring trustee to abandon property. Bruce J. Toenjes appeared on behalf of the movant creditor Meinerz Creamery, Inc. (hereinafter “Mein-erz”). Mark S. Lorence appeared on behalf of Debtor....
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ORDER REVERSING DECISION OF THE BANKRUPTCY COURT AND REMANDING CASE TO BANKRUPTCY COURT The United States appeals from the bankruptcy court’s orders of June 23, and September 12, 1986, holding that the Internal Revenue Service (IRS) may not collect post-petition interest on nondischargeable pre-petition tax claims when the principal amount of the claims has been fully paid from the debtor’s ban...
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MEMORANDUM In its memorandum of June 20, 1988, the Court ordered the State of Nebraska and plaintiff to provide legal arguments on the issue of Nebraska’s immunity from plaintiffs complaint of conversion. The Court has received and reviewed the arguments presented by Nebraska. Plaintiff provided no further legal arguments. Plaintiffs action for conversion against the State of Nebraska is dism...
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88 B.R. 214 (1988) In re HAUGEN CONSTRUCTION SERVICES, INC., Debtor. Bankruptcy No. 85-05321. United States Bankruptcy Court, D. North Dakota. February 29, 1988. *215 William P. Westphal, U.S. Trustee, Minneapolis, Minn. Max Rosenberg, Bismarck, N.D., for debtor. Edward Klinger, Moorhead, Minn., for Butler Machinery. Richard P. Olson, Minot, N.D., for American Bank. John Petrik, Minot, N.D., for ...
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MEMORANDUM OPINION This adversary proceeding was commenced by Complaint filed February 12, 1988, by which the Plaintiff, Carol Renee McConnell, seeks a determination that certain divorce decree payments awarded her in a 1987 divorce from the defendant, Field McConnell, are in the nature of alimony and support and thus nondischargeable under section 523(a)(5) of the Bankruptcy Code. In six count...
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MEMORANDUM AND ORDER Before the court is a Motion to Dismiss filed by the defendant, First American Bank (Bank) on April ■ 13, 1988. By its motion, the Bank contends the complaint of the Chapter 7 trustee, Phillip D. Armstrong is time-barred by the statute of limitations set forth in 11 U.S.C. § 549(d). Following the dismissal notice, the trustee filed an amended complaint which prompted the Ba...
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This appeal arises out of the bankruptcy court’s order granting the appellee’s motion for relief from the automatic stay, where the debtor had filed a Plan and Disclosure Statement just prior to the hearing. FACTS On February 25, 1977, the debtor corporation purchased from the appellee a 106 unit apartment complex which is located in Texas and the only asset in the estate. The debtor issued a...
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MOOREMAN, Bankruptcy Judge: OVERVIEW By this appeal, appellant Willamette Waterfront (Willamette) seeks to set aside Victoria Station’s (debtor) assumption and assignment of a lease. The fundamental dispute in this case is over the debtor’s obtaining three (3) separate orders extending the time in which to assume or reject certain unexpired leases of nonresidential real property. ...
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88 B.R. 238 (1988) In re Carlys K. KRUEGER and Martha Lou Krueger, dba Krueger's Entertainment, Debtors. GREAT PACIFIC MONEY MARKETS, INC., Jack Winer, Domus Equities, Inc., a California Corporation, Appellants, v. Carlys K. KRUEGER and Martha Lou Krueger, dba Krueger's Entertainment, Appellees. BAP No. CC-87-1619 JVMo, Bankruptcy No. SAX 86-03717JR, Adv. No. SA 86-0845-JR. United States Bankrupt...
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OPINION Marjorie Lynn Walters and John H. Holloway appeal from the bankruptcy court’s order dismissing their adversary proceeding and imposing sanctions against them in the amount of $2,961.78. We affirm. FACTS Prior to bankruptcy, in May of 1980, Marjorie Lynn Walters received a state court judgment for $29,614.91 against the debtor Arnold J. Webre for assault and battery. On J...
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MOOREMAN, Bankruptcy Judge. This appeal arises from an order entered by the bankruptcy court dismissing the appellant’s complaint “for failure to prosecute.” The debtor/appellee did not file a responsive brief. FACTS On August 7, 1986, the appellant filed the underlying adversary proceeding against the debtor seeking to have a certain debt declared nondischargeable. The complaint specifical...
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OPINION Before MOOREMAN, YOLINN and JONES, Bankruptcy Judges. This appeal arises out of the bankruptcy court’s order granting sanctions against the appellant law firm (Fortune & Faal) in the amount of $4,000. The sanctions were awarded pursuant to 11 U.S.C. § 362(h) for willful violation of the automatic stay. The essence of the alleged violation was that appellant had commenced a sta...
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OPINION Before ASHLAND, MEYERS and JONES, Bankruptcy Judges. Pac West Auction Co. appeals from the bankruptcy court’s judgment that a lease with an option to purchase was a lease intended as security and that the interest of Pac West Auction Company in the collateral was adequately protected. Jerry Strasheim, an assignee of Pac West Auction Company, appeals the bankruptcy court’s ord...
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I This case presents the issue of whether the Debtor’s payments to two subcontractors constitute voidable preferences where in exchange, the subcontractors released their unsecured claims against the Debtor as well as their claims against a surety company. The Bankruptcy Court found that the Debtor’s payments were exceptions under § 547(c)(1) of the Bankruptcy Code (“Code”) and therefore w...
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MEMORANDUM OPINION Debtor brought this motion for authorization to use cash collateral pursuant to § 363(c)(2)(B) of the Bankruptcy Code (the “Motion”). I held hearings on the Motion on February 23 and March 31, 1988. I awarded interim use of cash collateral and took the matter under submission to determine whether long term use of cash collateral is justified in light of all the circumst...
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MEMORANDUM DECISION At issue is whether United States government pension payments received by the debtors are exempt under California’s exemption statutes. Also at issue is whether debtors’ IRA accounts are exempt. This court has jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 1334 and 157(b)(1), and General Order No. 312-D of the United States District Court, Southern Dist...
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MEMORANDUM DECISION Debtors Mickey and Diane Blackburn seek confirmation of their amended Chap *274 ter 13 plan. In part, the plan provides for payment of $7,900, at the rate of $183 per month in satisfaction of the purchase option under a vehicle lease. Security Pacific Credit Corporation, the lessor, has objected to confirmation and asserts that the lease terminated pre-petition and cannot ...
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MEMORANDUM DECISION AND ORDER On March 31, 1988, Edward P. Anderson and Alzada P. Anderson (“Andersons”), creditors herein, filed a Motion for Examination and Reduction of Trustee’s charges (“Motion”) requesting that the court examine, then reduce the “fees for storage of corporate records” assessed by the Trustee against the Andersons. The Motion was heard on May 20, 1988, at which ...
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MEMORANDUM DECISION AND ORDER RE: OBJECTION TO EXEMPTION On April 19, 1988, Richard M. Kennedy, Trustee of the Estate of David T. Eith, and Edward J. Stanley, Trustee of the Estates of David T. Eith, dba Industrial Medical Clinic, Airport Medical Service, Inc. and Pawaa Medical Laboratory, Inc. (both being hereafter jointly referred to as “Trustees”), filed Trustees’ Objection to Debtor’s Claim of...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: ORDER TO SHOW CAUSE On April 26, 1988, this Court sua sponte issued an Order to Show Cause, premised on the appearance that the granting of a discharge in this case would constitute a substantial abuse of the Bankruptcy Code. A hearing was held on May 24, 1988, at which time the Trustee, Robert Matsumoto, Esq. appeared on behalf of himself,...
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*286 FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION FOR JUDGMENT ON THE PLEADINGS AND/OR SUMMARY JUDGMENT On December 11, 1987, the trustee, Robert 0. Lippi, (“Trustee”) filed a Complaint against James Covella (“Covella"), Mountain Management, Inc., dba Pacific Operations and Development Co. (“Mountain Management”), Executive Suite Secretarial Servi...
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ORDER After due notice, a confirmation hearing was held on August 4, 1987, and October 15,1987, on the Debtors’ Amended Chapter 12 Plan, together with objections to the Plan filed by the Richland Federal Credit Union (RFCU), the American State Bank and Trust of Williston, N.D. (Bank), the Small Business Administration (SBA), the Navistar Financial Corporation (Navistar), the John Hancock ...
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MEMORANDUM DECISION Movant Charles Jeffrey seeks an order validating his purchase of the Debtor’s property at a postpetition foreclosure sale under Bankruptcy Code § 549(c), 11 U.S.C. § 549(c), or granting retroactive relief from the automatic stay of Bankruptcy Code § 362(a). 11 U.S.C. § 362(a). For the reasons set forth below, the motion is denied. FACTS Debtor Frances Powers (“Powers”) o...
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MEMORANDUM OPINION This matter comes before the court on plaintiffs and defendant, Southwestern Motors, Inc.’s (Southwestern’s) cross-motions for summary judgment. This is a preference action initiated by the trustee to avoid the defendants’ security interest in an automobile. The parties’ affidavits, exhibits and memoranda reveal the following undisputed facts: 1. On or before April 15, 1986, Da...
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MEMORANDUM DECISION The issue in this case is whether a Chapter 13 debtor is entitled to the discharge of an 11 U.S.C. section 507 priority debt when the Internal Revenue Service (“IRS”) has not timely filed a proof of claim. THE FACTS The debtor, Betty Tomlan, filed her petition for relief under Chapter 13 of the Bankruptcy Code on September 19, 1984. 11 U.S.C. section 1301 et seq. The n...
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MEMORANDUM DECISION BACKGROUND During the course of administration of this Chapter 11 estate, the debtors-in-possession entered into a contract to participate in the Dairy Termination Program with the United States Department of Agriculture. Under this program, the debtors agreed to sell their dairy herd for slaughter and not to have any interest in dairy cattle or in the production of milk f...
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MEMORANDUM OPINION AND ORDER On March 17, 1987 the late Judge McGrath of the United States Bankruptcy Court for the District of Colorado issued an order permitting debtor to reject its collective bargaining agreement with appellant trust funds. On April 9, 1987, the court issued minutes and an order detailing the findings of fact and conclusions of law on which he based the determination....
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ORDER Appellants Miguel and Emilia Camacho appeal the judgment of Visiting United States Bankruptcy Judge Harold L. Mai who denied their objection to the debtor-ap-pellee Dr. Theodore Ed Martin’s Chapter 7 discharge. Jurisdiction is proper under 28 U.S.C. § 158. These facts are undisputed: In December 1982 the appellants obtained a jury verdict against the appellee Martin in the amount of $54...
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ORDER ON REPLACEMENT OF GENERAL PARTNER IN A PLAN OF REORGANIZATION This matter comes before the Court on the motion of Pikeview Venture (Pikeview), the sole general partner of the debtor, to abate confirmation proceedings in the Chapter 11 bankruptcy of Sovereign Group, 1984-21 Ltd. (Sovereign Group). This Court granted the motion to abate confirmation proceedings pending a final deter *327 ...
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OPINION AND ORDER DISALLOWING GLENN L. RYLAND’S CLAIM FOR DIRECTORS AND OFFICERS LIABILITY INSURANCE Debtors object, under section 502(b) of Title 11, to Glenn L. Ryland’s (“Ryland”) $10,000,000 claim for directors and officers liability insurance coverage which Ryland alleges Frontier Airlines, Inc. agreed to provide him. After consideration of Ry-land’s Proof of Claim, the briefs and exhibits...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Bankruptcy Court on remand from the United States District Court. U.S. District Court Judge John L. Kane ordered this Court to make appropriate findings and ruling on two issues pertaining to this Chapter 11 Debtor’s rejection of a Collective Bargaining Agreement. The essence of the remand is to have this Court determine whether or...
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MEMORANDUM AND ORDER Several motions are pending before the court in the above-captioned case. Plaintiff Seitter, the trustee in bankruptcy for Select Brands, Inc. (“Seitter/SBI”) seeks an order from this court for leave to file its second amended complaint and its first amended third-party complaint. Laventhol & Hor-wath (“Laventhol”) is the third-party defendant in this action, and asks...
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ORDER This matter is before the Court on two motions filed by the debtor. In the first, debtor moves the Court for an order allowing the payment of $120,000 in broker commissions to Clifton, Gardiner & Associates, Inc. (Clifton, Gardiner) as an administrative expense pursuant to 11 U.S.C. § 503(b)(1)(A). In the second, debtor seeks to assume the Clifton, Gardiner listing agreement as an e...
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MEMORANDUM OPINION and DECISION This matter comes on for hearing upon stipulated facts. The court finds that the instant action is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(k) and that jurisdiction and venue are proper pursuant to 28 U.S.C. §§ 1334 and 1409(a), respectively. The court makes the following findings of fact and conclusions of law as required by Bankruptcy Rule...
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MEMORANDUM ORDER AND DECISION This adversary proceeding was submitted for decision on complaint, stipulations and briefs pursuant to order filed July 14, 1988. The Court also takes judicial notice of the record in In re Greater Atlantic and Pacific Investment Group, Inc., Case No. 87-00200-W. Upon consideration thereof, the Court finds, concludes and orders as follows: FINDINGS OF FACT 1....
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OPINION On May 1, 1985, Mary Ethel Skinner obtained a divorce from Jerry Don Skinner in the District Court of Cleveland County, Oklahoma. Skinner v. Skinner, No. JFD-84-1441 (B). On July 15, 1985, the state district court ordered Mr. Skinner to pay $6000.00 in attorney’s fees to Grover Mis-kovsky, Mrs. Skinner’s lawyer. This award was then incorporated by reference in the divor...
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*363 OPINION This bankruptcy proceeding was initiated by Amarex, Inc. and Amarex Funds of Delaware, Inc. (Amarex), in December 1982 under Chapter 11 of Title 11 of the United States Code. In 1984, Amarex filed over 250 adversary proceedings and sought pursuant to title 11, section 547 of the United States Code to recover certain alleged preferential payments to operators of joint...
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ORDER REGARDING MOTION TO EXTEND TIME The Official Unsecured Creditor Committee (“Committee”) filed a motion pursuant to Bankruptcy Rule 4007(c) for an extension of time in which any unsecured creditor may bring a complaint seeking an exception to discharge pursuant to § 523(c). The Debtor filed an objection. The matter was heard and taken under advisement. A motion requesting an ext...
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MEMORANDUM OPINION On February 13, 1987, Granada, Inc. (“Granada”) filed its Chapter 11 petition for relief. As of that date, Granada occupied offices on the first and second floors of the McCune Mansion (“Mansion”) located at 200 North Main Street, Salt Lake City, Utah. 1 Granada vacated a portion of the first and second floors of the Mansion on or about April 5, 1987. By May ...
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MEMORANDUM OPINION Pursuant to 11 U.S.C. § 1112, the debtor, Smith and Son Septic and Sanitation Ser *377 vice (S & SS & SS) filed a motion to dismiss its chapter 11 case. Because of its failure to pay the quarterly fees required under 28 U.S.C. § 1930(a)(6), the United States trustee (UST) objected to the debtor’s motion. The matter was taken under advisement because of the ...
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ORDER ON MOTION TO QUASH WRIT OF EXECUTION AND MOTION TO STAY PENDING APPEAL THIS IS a Chapter 7 liquidation case and the matter under consideration are two Motions filed by The Chase Manhattan Bank, Plaintiff in the above-captioned adversary proceeding. One is a Motion to Quash Writ of Execution; the other, a Motion to Stay Pending Appeal. The events leading up to these matters arose in this adve...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the objections of the trustee and New Wood-mere Nursing Home, Inc. (Woodmere), a creditor, to the debtor’s claim of exemption in certain annuity contracts issued pursuant to the terms of a personal injury settlement agreement in favor of the debtor. An evidentiary hearing on the objections was held on April 27, 198...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the objections of the trustee and New Wood-mere Nursing Home, Inc. (Woodmere), a creditor, to the debtor’s claim of exemption in certain annuity contracts issued pursuant to the terms of a personal injury settlement agreement in favor of her husband, Vincent Benedict. An evidentiary hearing on the objections was he...
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ORDER ON RENEWED CROSS MOTIONS FOR SUMMARY JUDGMENT AND MOTION FOR REVISION OF INTERLOCUTORY ORDER THIS IS a Chapter 11 case and the matters under consideration are renewed cross motions for summary judgment. The motions are filed by successor Trustees Robert Venney and Jeffrey Warren, who replaced Joseph Gassen, the Trustee originally appointed in this Chapter 11 case. The cross motion i...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation case, and the matter under consideration involves the right of Hardy Cornelius Warmack and his wife, Phyllis Castellaw Warmack, to a general bankruptcy discharge, which right is challenged by the Plaintiff, Chase Manhattan Financial Services, Inc. (Chase). In addition to objecting to the discharge ...
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*404FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation ease and the matter under consideration is the dis-chargeability vel non of an obligation imposed on Dr. Michael J. Kinney (Dr. Kinney) in conjunction with a divorce proceeding by the Circuit Court of the County of Cabell of the State of West Virginia. The claim that the obligation is dischargeable is ...
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ORDER THIS CAUSE has come before the court upon the appeal of the debtor, Daniel James Shillinglaw, from a final order of the bankruptcy court. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 157. There is also pending before the court a Motion to Dismiss Appeal filed by the ap-pellees Warren Lawson and Lawson Fence Company, Inc. (collectively referred to as “Law...
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ORDER ON CHAPTER 11 FEES This chapter 11 case, filed in May 1988, was converted to chapter 7 in February 1987. At the request of the chapter 7 trustee, a hearing was held April 25, 1988 to fix the chapter 11 fees and expenses. There are six applications (CP 334) total-ling $658,101, of which $41,705 has been paid as interim allowances. 1 The estate totals about $1.5 mi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE, having come before the Court upon plaintiffs’ complaint to determine the validity, priority and extent of the liens of Bradford National Bank (as trustee under certain industrial development revenue bonds) and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the a...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon Sure-Snap Corporation’s (the debtor’s) Complaint for Declaratory Judgment, to Set Aside Pre-Petition Conveyance, for Turnover of Funds, and for Money Judgment pursuant to 11 U.S.C. § 542 and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, c...
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ORDER DETERMINING SECURED STATUS OF FLAGLER FEDERAL SAVINGS AND LOAN ASSOCIATION THIS CASE came before the Court on June 6, 1988, upon the Debtors’ Motion for *420 Order Determining Secured Status of Creditor, Flagler Federal Savings and Loan Association, and the Court, having examined the evidence presented, considered the arguments of counsel, and being otherwise duly advised in the premise...
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*424 FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court for trial in Miami upon a complaint filed by Radice Corporation, Crosswinds of Delray, Inc., Radice of Columbus, Inc., Radice Lands, Inc., Radice North Hills, Inc., and Radice of Savannah, Inc., to obtain a declaratory judgment and other relief determining the validity, priority and extent of liens and ...
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ORDER ON DEBTOR’S EMERGENCY MOTION This debtor’s “Emergency Petition for Order Enforcing Automatic Stay” (CP 2) filed June 17 was heard by me on July 7 in Judge Weaver’s absence. The motion is denied. The Debtor’s Plan The debtor’s chapter 13 petition was filed June 16 without a Plan which was required to be filed not later than July 1. B.R. 3015. At the hearing, the debtor ...
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MEMORANDUM DECISION The plaintiff creditor seeks exception from discharge under 11 U.S.C. *431§ 523(a)(2)(B) for its claim of $5,000. The debtor has answered and the matter was tried on May 31. I conclude that the claim should be excepted from this debtor’s discharge and that plaintiff is entitled to judgment against the debtor in the amount claimed. In connection with a loan of $5,000, the debtor...
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MEMORANDUM DECISION The trustee seeks recovery under 11 U.S. C. § 547(b) of $200,000 as an alleged preferential transfer to the defendant. The defendant has answered and' the matter was tried on May 31. The trustee claims that the following actions constituted a preferential transfer of the debtor’s property to or for the benefit of the creditor. On December 26,1984 the debtor entered into a const...
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MEMORANDUM DECISION The plaintiff creditor seeks exception from discharge under 11 U.S.C. § 523(a)(2)(A) for its $22,307 judgment. 1 The debtor has answered and the matter was tried July 13. The debtor’s answer incorporates an assertion that the complaint fails to state a cause of action. I agree and conclude that plaintiff cannot amend to state any ground for relief. ...
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ORDER ON EXEMPTION (TRUST & ANNUITY) Seven creditors (CP 29), joined by the trustee (CP 34), and another creditor, Chicago Title (Adv. No. 88-0144, Count 3) have objected to the debtor’s claimed exemption of the “Ainickel Irrevocable Trust Annuity”. The parties were heard April 28. The objections are overruled. The Ainickel Trust On November 6,1986 the debtor’s daughter-in-l...
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ORDER DENYING CONFIRMATION AND DISMISSING CASE A confirmation hearing was held April 19 and 21 in this chapter 11 case. Since the hearing, the debtor has filed a Fifth Amended Plan (CP 147). The debtor may modify its plan at any time before confirmation. 11 U.S.C. § 1127. Although this modification appears to adversely affect a party (see note 2 infra), in view of the conclusion I have reached wit...
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MEMORANDUM DECISION The trustee seeks avoidance and recovery, as preferential transfers under 11 U.S. C. § 547(b), of two payments totalling $11,-000 made to the defendant attorney within 90 days before bankruptcy. Defendant has answered and the matter was tried June 28. I agree with the plaintiff that both payments are voidable and recoverable from the defendant. The facts are not i...
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ORDER DENYING CREDITOR’S MOTION TO DISMISS A creditor has moved (CP 17) to dismiss this chapter 11 case under 11 U.S.C. § 109(b) and (d). These provisions disqualify “a domestic insurance company” from bankruptcy. The debtor has responded (CP 28) and the motion was heard May 31. The parties and the Florida Department of Insurance have each filed briefs. I now agree with the debtor that th...
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MEMORANDUM DECISION The plaintiff ex-wife seeks exception from discharge under 11 U.S.C. § 523(a)(5)1 for her claim of $45,600. The debtor has answered and the matter was tried on July 12. I agree with The Settlement Agreement of September 10, 1986, incorporated in the November 19, 1986 divorce decree, contains an explicit, irrevocable waiver of alimony and support by plaintiff. In addition to div...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon Sure-Snap Corporation’s (the debtor’s) Complaint for Preliminary Injunction, to Set Aside Pre-petition Conveyance, for a Turnover of Funds, for Declaratory Judgment, and for a Money Judgment pursuant to 11 U.S.C. § 542, and the Court having heard the testimony, examined the evidence presented, observed the candor...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Peggy S. Hicks for reestablishment of a lost instrument and a declaratory judgment relating to Property of the Estate pursuant to 11 U.S.C. § 541, and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court upon the creditor, VICKIE STEWART-MI-CHAUD’s, complaint to determine dis- *455 chargeability of a debt owed by the debtor, ALLEN S. MULLIN, JR., pursuant to 11 U.S.C. § 523(a)(2)(A) and (B), § 523(a)(4), and § 727(a)(4)(C) and the Court having heard the testimony, examined the evidence presented, observed the candor a...
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ORDER Before the court is plaintiffs motion for summary judgment. Plaintiff, Robert A. Burroughs, is a judgment creditor of debtors. Plaintiff alleges that the judgment debt is nondischargeable pursuant to 11 U.S.C. Section 523(a)(2)(A). FINDINGS OF FACT The subject debt arose from a judgment for plaintiff against debtors after a jury trial in the State Court of DeKalb County, G...
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ORDER This matter came on for trial on February 29, 1988 on Carlisle Corporation’s (“Carlisle”) Chapter 7 involuntary petition against J.B. Lovell Corporation (“Lovell”) filed February 4, 1987. For the reasons stated herein the court finds that there are no remaining issues to be tried and that an order for relief should be entered against Lovell. On February 4, 1987, Carlisle filed ...
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ORDER This case is before the Court on the above-referenced debtors’ objection to the claim filed by the United States of America/Internal Revenue Service (“IRS”). The Court conducted a hearing on the debtors’ objection on April 15, 1988, at which time the parties were directed to submit briefs on the matter. The facts of the case are as follows. The debtors filed their Chapter 7 case on November ...
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ORDER This case is before the Court on a motion by Airlines Reporting Corporation (“ARC”) for relief from the automatic stay and a motion by the debtor to assume an exec-utory contract with ARC. The motions came on for hearing on July 1, 1988. 1 The debtor, The Travel Shoppe, Inc. (“Travel Shoppe”), is a travel agent. The debtor filed a petition under Chapter 11 of the Bankruptcy Code on Ma...
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MEMORANDUM OPINION AND ORDER This Chapter 7 ease is before the Court for a review of the attorney fees and expenses disbursed by Mr. C. George New-bern, Trustee, on December 30,1983 to Mr. John T. Croley, attorney for Trustee. This Chapter 7 case was assigned to the undersigned Judge upon the retirement of Judge Algie M. Moseley on March 31, 1986. In 1982, Mr. W.E. Ross and Mrs. Eliz...
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STATEMENT OF THE CASE Charles Lee Kelly, Sr., and Crystal Ann Kelly, Plaintiffs, filed a joint petition for relief under Chapter 7 of the Bankruptcy Code on May 4, 1987. On September 4, 1987, Plaintiffs filed a complaint seeking to recover from the United States Air Force, Defendant, the sum of $1400. Plaintiffs allege that Defendant withheld this money from Mr. Kelly’s final paycheck in ...
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ORDER ON PLAINTIFF’S MOTION TO INVOKE DOCTRINE OF COLLATERAL ESTOPPEL In this adversary proceeding, Joseph Atchley, (plaintiff) seeks a determination that a judgment debt owed to him by Ernest E. Stover and Jean R. Stover (debtors), debtors in the underlying chapter 7 proceeding, is nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) & (B), (a)(4), (a)(6) and (a)(7). This judgment resul...
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ORDER Upon consideration of INSLAW Inc.’s motion for court assistance to obtain independent handling; the opposition thereto of respondents United States of America and the United States Department of Justice; the testimony of witnesses and other evidence presented during the hearing held May 29 and June 1, 2 and 3, 1987; and the Court having found by clear and convincing evidence that, s...
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MEMORANDUM On or about November 13, 1987, Bank Five for Savings (“Bank Five”), a secured creditor, filed three claims against the Debtors in case nos. 87-10459 and 87-10550, as well as case no. 87-10548. Bank Five recently withdrew, without prejudice, the claims filed in case nos. 87-10549 and 87-1550. Bank Five claims it is owed, at least as of November 13, 1987, $2,179,360. The Debtors and th...
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MEMORANDUM I. INTRODUCTION Wedgestone Realty Investors Trust (“Wedgestone”) has filed a claim against the Debtors based upon a loan made in June of 1986 secured by four properties owned by the Debtors individually or as trustees of real estate trusts. Wedge-stone’s claim, as of January 1, 1988, totals $4,032,011.03. It consists of the remaining loan balance of $2,460,000, insurance p...
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MEMORANDUM The Trustee filed the above captioned complaint against the Debtor Francis P. Tracey (“Tracey” or the “Debtor”), Helen Feeney (“Feeney”) and Maureen E. McKin-non (“McKinnon”), the Debtor’s niece, on September 18, 1987. Through his complaint, the Trustee seeks to set aside certain conveyances made by the Debtor to Feeney and McKinnon of interests in Unit E-21, a condominium loca...
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ORDER ON DEBTOR’S MOTION TO EMPLOY FIRST BOSTON CORPORATION FOR MERGER AND ACQUISITION SERVICES On May 13, 1988, the debtor filed its Motion For Order Approving Employment Of The First Boston Corporation For Merger And Acquisition Services pursuant to §§ 327 and 328 of the Bankruptcy Code. The debtor, Public Service Company of New Hampshire (PSNH), previously requested authority to employ First...
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MEMORANDUM OPINION ON PLAN EXCLUSIVITY EXTENSION This chapter 11 case was commenced by a voluntary petition filed by the debtor on January 28, 1988. Accordingly, the debt- or’s statutory 120-day exclusive, period within which to file a plan of reorganization under 1121(b) of the Bankruptcy Code was scheduled to expire on May 27, 1988. On April 28, 1988 the debtor filed a motion for an eig...
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Memorandum Opinion On Section 1109 And Rule 2018 Motions This chapter 11 case is presently before the court upon five motions for determination of party in interest status and/or for intervention. The movants are: (1) the State of New Hampshire through its Attorney General; (2) the State of Connecticut through its Attorney General, and Connecticut’s Department of Public Utility Control (D...
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ORDER DENYING THE THIRD MORTGAGEES’ MOTION FOR ADEQUATE PROTECTION IN THE' FORM OF CURRENT AND CONTINUING INTEREST PAYMENTS UNDER THE THIRD MORTGAGE BONDS Upon consideration of the Motion dated May 3, 1988 by First Fidelity, N.A., New Jersey (“First Fidelity”), as trustee under the Third Mortgage Bond Indenture, dated February 15, 1986 as amended and supplemented (the “Third Mortgage Inde...
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ORDER DENYING MOTION FOR ADEQUATE PROTECTION OF FIRST FIDELITY’S INTEREST IN CASH COLLATERAL This court considered the “Motion For Adequate Protection Of First Fidelity’s Security Interest In Cash Collateral Under The Third Mortgage Indenture” (hereinafter the “Motion”), filed by First Fidelity Bank, National Association, New Jersey (“First Fidelity”), Citicorp, Consolidated Utilities Corporati...
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DECISION AND ORDER ADJUDGING THE DEPARTMENT OF THE ARMY IN CIVIL CONTEMPT Heard on November 4, 1987, on our order to show cause why the United States Department of the Army should not be held in contempt. The matter was under advisement in draft form when, in February, 1988, the District Court remanded, for further consideration, the Department of the Army’s appeal of our “Decision and Or...
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MEMORANDUM OF DECISION AND ORDER ON OBJECTION TO TRUSTEE’S PROPOSED DISTRIBUTION OF SALE PROCEEDS At issue is whether a creditor with two mortgages may compel the allocation of sale proceeds to maximize payment of its claims at the expense of a lienholder with an intervening security interest. The following relevant facts are undisputed. 1 I On November 13,1986, the debt...
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MEMORANDUM OF DECISION AND ORDER On October 16, 1984, Vanguard Oil & Service Co., Inc. (the “Debtor”) filed its voluntary bankruptcy petition pursuant to Chapter 11 of Title 11 of the United States Code. At that time, the Debtor’s principal business was the sale of fuel oils, crude oil and other petroleum products. Among the Debtor’s assets is a parcel of real property known as and l...
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OPINION Plaintiffs American Telephone and Telegraph Company, AT & T Technologies, Inc. and AT & T Information Systems Inc., for themselves and their direct and indirect affiliates and subsidiaries (collectively “AT & T”) have moved for an order pursuant to 28 U.S.C. § 157(d) and Bankruptcy Rule 5011 withdrawing the reference of an adversary proceeding commenced by AT & T against the LTV C...
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This is an appeal pursuant to 28 U.S.C. § 158(a) of a decision by the Bankruptcy Court in this District vacating an arbitration award that would have the effect of permitting drivers for Transit Mix Concrete Corporation (“Transit Mix”) to work on projects being supplied by Certified Concrete Company (“Certified”), by combining the seniority lists of drivers for these two debtors. For the reason...
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DECISION AND ORDER — ON APPLICATION TO SUSPEND THE CHAPTER 7 CASE AND DIRECT THE TURNOVER OF ASSETS, AND ON CROSS-APPLICATION TO DISMISS THE CASE AND VACATE AB INITIO ALL PROCEEDINGS AND SETTLEMENTS THEREIN I. INTRODUCTION The chapter 7 case before this Court is the progeny of a Hong Kong winding-up proceeding concerning this debtor, Axona International Credit & Commerce Limited (her...
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DECISION AND ORDER When Wedtech Corporation (“Wedtech” or “Plaintiff”) filed its petition under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq. (1986), on December 15, 1986, it brought with it almost unmatched charges of criminality by its officers, directors, consultants and various former and current public officials. Since then, some of these people have been con...
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OPINION On October 5, 1987, Frank Cardell, Gail Cardell, his wife, and FEC, Inc. each filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code. On October 23, 1987, Cardell & Associates, Inc. (“Associates”), also filed a petition for relief under Chapter 11 of the Bankruptcy Code. FEC, Inc. and Associates are wholly owned by Frank Cardell. By Order dated October 23, 19...
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OPINION This matter is before the court on cross-motions for summary judgment. The court has jurisdiction pursuant to an Order of Reference entered by the United States District Court dated July 23, 1984 as provided in 28 U.S.C. § 157. This is a “core proceeding” as defined in 28 U.S.C. § 157(b)(2) and the judgment of this court can be appealed to the United States District Court for the ...
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*650MEMORANDUM AND ORDER In this Chapter 11 proceeding, we have for consideration an Application by the debtor for an Order confirming sales to American Plastics Equipment, Inc. and Carter Footwear, Inc. The Debtor’s Application was met with a number of objections and after a hearing was held on the application, together with the objections, this Court entered an Order confirming the sale on July ...
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MEMORANDUM AND ORDER This case involves cross-appeals from orders of the bankruptcy court in an action brought pursuant to 11 U.S.C. § 1301, et seq. (Chapter 13). The debtor here, Kathleen Jablonski, a/k/a Kathleen Peterson, appeals from that portion of the order which allows to the creditor a secured claim equal to the entire value of the debtor’s residential property, despite...
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MEMORANDUM AND ORDER Pending before this court is an appeal from the Department of Public Welfare (DPW) from a bankruptcy court decision, involving two similar cases, which held that criminal restitution payments may be discharged in a Chapter 13 1 case. Upon consideration of the statute, and its interpretation by the Supreme Court in Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2...
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OPINION INTRODUCTION The instant adversary proceeding illustrates the difficult burdens placed upon a creditor in attempting to have debts declared nondischargeable on the ground that the debtors issued false financial statements to the creditor in connection with the incurrence of the debts in issue, pursuant *665 to 11 U.S.C. § 523(a)(2)(B). The creditor must establish...
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MEMORANDUM OPINION Laundromat equipment leased by John T. Reice (“debtor”) is the subject of the in *678 stant motion for relief from the automatic stay filed by Landmark Leasing, Inc., (“movant”). We deny relief under 11 U.S. C. § 362(d)(2) because movant has failed to prove that this property is not necessary for an effective reorganization. Section 362(d)(1) provides no ba...
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88 B.R. 686 (1988) In re Preston BURCH, Jr., Debtor. In re Delores MORTON, a/k/a Delores Burch, Debtor. Preston BURCH, Jr. and Delores Morton, a/k/a Delores Burch, Plaintiffs, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, and Samuel R. Pierce, Jr., Defendants. Bankruptcy Nos. 82-05835S, 83-02646K, Adv. No. 83-2067S. United States Bankruptcy Court, E.D. Pennsylvania. July 8, 1988. *687 *688 Autherine ...
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OPINION This adversary proceeding involves a creditor’s request to have the debtor’s chapter 7 discharge denied pursuant to 11 U.S.C. § 727(a)(2) and 727(a)(4). In a prior opinion reported at In re Garcia, 69 B.R. 522 (Bankr.E.D.Pa.) aff'd. 76 B.R. 68 (E.D.Pa.) af f'd. mem., 838 F.2d 460 (3rd Cir.1987), I addressed a discovery dispute between these parties...
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MEMORANDUM OPINION Before the Court are motions filed on behalf of the alleged involuntary Debtors 1 requesting sanctions against John T. Tier-ney, III, an attorney appearing pro se (hereinafter petitioning creditor or Tierney) pursuant to Bankruptcy Rule 9011 and 11 U.S.C. § 303(i). In the Memorandum Opinion dismissing the involuntary cases which was previously file...
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MEMORANDUM OPINION Presently before the Court is Debtor’s Objection to the Claim of the Internal Revenue Service (“IRS”), and a Complaint to Determine Tax Liability of Debtor and Phillip P. Quattrone. 1 Debtor disputes its identification, for tax assessment purposes, as a “responsible person” of the United Dairy Farmers Cooperative Association (“UDF”). Alternatively, Debtor c...
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MEMORANDUM OPINION Presently before the Court is Debtors’ Motion for Contempt against Jackson & Perkins Co., a creditor in this bankruptcy case, and Joseph J. Bernstein, Esquire and Bernstein and Bernstein, P.C., said creditor’s counsel. The Motion avers that certain actions by this creditor, through its counsel, constitute willful violations of the automatic stay, subjecting both parties...
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MEMORANDUM OPINION Presently before the Court is Plaintiff’s Objection to Dischargeability of certain debt, pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6). A trial was held, at which time testimony was offered. Based upon the evidence so adduced we find Plaintiff has not met her burden of proof, and judgment will be entered for Defendant. FACTS On July 22, 1985 Jean Gi...
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This is an appeal by The Baltimore Sun from an order of the United States Bankruptcy Court (Schneider, J.) denying a Sun reporter’s request to attend a creditors’ meeting involving Astri Investment Management and Securities Corporation (Astri) as the debtor in a bankruptcy proceeding. The question presented — whether the members of the public have a right to attend a creditors’ committee meetin...
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MEMORANDUM IN RE CONFIRMATION ORDER On August 21,1985, A.H. Robins Company, Incorporated (“Robins”) filed its petition for reorganization relief pursuant to 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”). On that same day, this Court, upon representation that the major aspect of the case required the services of an Article III judge, withdrew the reference of this case to the...
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MEMORANDUM This matter came on for a hearing on the reasonableness, adequacy and fairness of the proposed settlement in this cause. At that evidentiary hearing, counsel for the Breland class and defendant The Aetna Casualty and Surety Company (“Aetna”) appeared and proffered evidence in support of the proposed settlement. Three attorneys for class members were heard, and had th...
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OPINION AND ORDER The debtors, Robert Mark and Katherine Montgomery Cole, contend that Bruce H. Gould, Esquire, Mark Kantro, Esquire, and Leon and Harvey Leach violated the automatic stay which arose upon their filing of a Chapter 13 petition. The Coles seek to hold Gould in contempt for his actions taken as trustee under a deed of trust in completing his transfer of their home in Norfolk...
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MEMORANDUM OPINION We consider here a fee application for services rendered by the attorney for the trustee in the instant case. Fee applications filed by the trustee, counsel for the trustee, and special counsel for the trustee, were set for hearing on May 24, 1988. Although no objections were filed in response to the applications, the debtors raised objections on the day of the hearing ...
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88 B.R. 773 (1988) In re DIAMOND LUMBER, INC., Case No. 387-32190-A-11, et al., and Akin, Gump, Strauss, Hauer & Feld, Appellants, v. UNSECURED CREDITORS' COMMITTEE OF DIAMOND LUMBER, INC., Appellee. Civ. A. No. 3-87-2796-H. United States District Court, N.D. Texas, Dallas Division. June 16, 1988. *774 Robin E. Phelan and Judith Elkin, Haynes & Boone, Dallas, Tex., Dean M. Gandy, Jay L. G...
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ORDER OF ABSTENTION Pending is the motion for abstention and remand filed by the debtor, Vincent Russell Chiodo d/b/a Chiodo Farms, and the report and recommendation of the Bankruptcy Judge with regard thereto. Being unopposed, the report and recommendation are hereby adopted by the Court pursuant to Bankruptcy Rule 9033. The Court finds that: (1) This Court has jurisdiction und...
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ORDER DISMISSING ADVERSARY CASE This matter comes before me on Debtor’s Motion to Dismiss the application of First City National Bank of Houston (First City) seeking a temporary restraining order, preliminary injunction, permanent injunction and declaratory judgment for failure to state a claim upon which relief can be granted. At a hearing held on June 13, 1988, I denied in part First Ci...
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MEMORANDUM OPINION This cause is before the Court upon the Trustee’s Amended Complaint to recover property of the estate by avoiding allegedly *794 improper transfers. Summary judgment was granted against certain defendants on January 6, 1988, and the Trustee has resolved the claims against certain other defendants by settlement. Consequently, at the time of trial, the only c...
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OPINION AND ORDER GRANTING MOTION FOR EXPEDITED DECISION AND DENYING MOTION TO RECONSIDER REOPENING OF CASE This matter is before the Court upon a contested motion filed by creditor, William *802 Maddox, requesting this Court to reconsider its order reopening this case. The debt- or, Michael Soult, also moved for an expedited decision. An evidentiary hearing was held on both motions on April ...
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OPINION AND ORDER ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT Pan-Western Life Insurance Co. (“Pan-Western”) initiated this adversary proceeding to except a debt from the effect of discharges granted to Robert and Elizabeth Ross in their jointly filed Chapter 7 bankruptcy case pending before this Court. The matter was tried to the Court on May 11, 1988. The Court has jurisdict...
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MEMORANDUM The question presented is whether the Chapter 7 trustee can use the “strong arm” power in § 544(a)(2) to penetrate a spendthrift trust where Tennessee law would permit the State of Tennessee as a (hypothetical) unsatisfied creditor to reach assets of the trust. The trustee cannot use § 544(a)(2) to assert the special status of the State. This is a core proceeding. 28 U.S.C...
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MEMORANDUM The chapter 7 trustee has filed this action to avoid an unperfected security interest in a 1982 Ford Escort automobile purchased by the debtor from the defendant. Crucial to the trustee’s case is a finding that the 1982 Ford Escort constitutes property of the estate. An analysis of the appropriate provisions of the Bankruptcy Code leads this court to conclude that the automobil...
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MEMORANDUM OPINION ON MOTION TO DISMISS VOLUNTARY PETITION AND TO DISQUALIFY DEBTOR’S COUNSEL The issues presented in this contested matter are whether a voluntary petition filed under Chapter 11 of the Bankruptcy Code must be dismissed, on motion of a party in interest, due to the intended voluntary filing being without the consent of both general partners; whether the order for relief a...
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MEMORANDUM OPINION AND ORDER ON MOTIONS FOR RELIEF FROM STAY, FOR ADEQUATE PROTECTION AND FOR ASSUMPTION OF LEASE CASE HISTORY These proceedings are before the court on related motions of the Debtor, Memphis-Friday’s Associates, to assume a commercial lease on property which houses its restaurant establishment known as T.G.I. Friday’s; of the lessor, Overton Square Partners (hereinaf...
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MEMORANDUM AND ORDER This matter comes to be heard on the debtor’s motion to dismiss a complaint objecting to her discharge filed by Guy Olson, Patricia Olson and G.E.O. Electric (“Plaintiffs”). For the reasons stated below, Counts I and III of the Plaintiffs’ complaint are dismissed unless amended within 21 days to plead fraud with particularity in accordance with Federal Rule of Civil P...
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MEMORANDUM DECISION This matter comes before the Court on the Debtor/Defendant’s Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 as applied to bankruptcy proceedings by Bankruptcy Rule 7056. FACTS 1 In 1986, Waymon and Barbara Wittman were residing in New Jersey but were planning on relocating to Illinois. On or about July 13, 1986, the Wittmans were introduced ...
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MEMORANDUM AND OPINION INTRODUCTION This matter comes before the Court on the motion of Beverly Hills Savings, (“Beverly Hills” or the “Bank”), a Federal Savings and Loan Association and successor in interest to Beverly Hills Savings and Loan Association, a California Corporation, for relief from the automatic stay. The Court held a hearing on the motion and at the close of 8th Stree...
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88 B.R. 860 (1988) In re Ernestine HARVEY, Debtor. Bankruptcy No. 83 B 15654. United States Bankruptcy Court, N.D. Illinois, E.D. July 14, 1988. *861 Gregory K. Stern, Chicago, Ill., for debtor. Mary H. LaMountain, Coakley & Smith, Oak Lawn, Ill., for Concordia Federal Bank for Sav. Jack McCullough, Chicago, Ill., Chapter 13 trustee. Marshall N. Dickler, Ltd., Arlington Hts., Ill., for 3950 N...
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MEMORANDUM OPINION ON DEBTOR’S MOTION FOR RULE TO SHOW CAUSE AND SANCTIONS UNDER 11 U.S.C. § 362(h) AGAINST CON-CORDIA FEDERAL SAYINGS AND LOAN ASSOCIATION Debtor has moved that Rule to Show Cause be entered and that sanctions under 11 U.S.C. § 362(h) be imposed against Con-cordia Federal Savings and Loan Association (“Concordia”). For reasons stated below that motion will be denied. Relevan...
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MEMORANDUM OPINION ON MOTION OF FREDRIC J. SPENCER FOR APPROVAL OF SUBROGATION CLAIM INTRODUCTION The debtor was a small Illinois manufacturer. Claimant, Fredric J. Spencer was an officer of debtor, and is represented by debtor’s counsel. He filed a Proof of Claim, alleging that he was entitled to $27,-865.79 from debtor when the case was filed in 1982. The basis for the claim is the...
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OPINION This matter is before the Court on the Trustee’s complaint for the turnover of a promissory note from Martin and Debora Wood which is secured by a deed of trust relating to certain property in Pima County, Arizona. Payments under the note are made to Stewart Title & Trust of Tuscon as escrow agent, and Stewart in turn forwards the payments to the Debtors. Eagle Bank of Charleston ...
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MEMORANDUM OPINION AND ORDER I STATEMENT OP PROCEEDINGS This Chapter 12 case came on for joint hearing on March 17, 1988 pursuant to Order of Court February 19, 1988, on the following contested matters: 1.Objection by Federal Land Bank of Louisville (“FLB”) filed July 14, 1987, to Debtor’s Plan of Reorganization filed June 16, 1987. 2. Motion by Debtor filed June 24, 1...
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First Wisconsin National Bank of Milwaukee and First Wisconsin Financial Corporation, the defendants in the above-captioned case, have asked the court to dismiss the third cause of action in the trustee’s Third Amended Adversary Complaint, pursuant to Federal Rule of Civil Procedure 9(b) and Bankruptcy Rule 7009. Alternatively, the defendants seek entry of an order directing the plaintiff to fi...
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DECISION On June 16, 1988, Congress enacted Public Law 100-334, 102 Stat. 610-615. Sections 1 and 2 of the Act constitute the “Retiree Benefits Bankruptcy Protection Act of 1988.” Section 3 of the Act (Public Law 99-591) amends Section 608(a) of the second title VI of the joint resolution entitled “Joint resolution making continuing appropriations for the fiscal year 1987, and for other p...
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DECISION This adversary proceeding was commenced by North Shore Savings and Loan to request a denial of the discharge of the debtors’ obligation to North Shore under 11 U.S.C. § 523(a)(6) and under 11 U.S.C. § 523(a)(2)(B). Trial was held on April 20, 1988. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). For the reasons stated below, a portion of the debt of David R. Jones to No...
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MEMORANDUM DECISION On October 18,1983, John L. and Jean F. Riley filed their chapter 13 plan which provided monthly payments of $976.00 to the trustee until the sale of their house. The monthly payments then would be reduced to $675.00 per month for the balance of thirty-six months. The Rileys were scheduled to pay out a total of $120,205.73, of which $69,895.70 would go to secured claim...
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MEMORANDUM OF DECISION AND ORDER RE: DENIAL OF CONFIRMATION OF PLAN OF REORGANIZATION The matter before the Court is the confirmation of the Substituted Plan of Reorganization filed by Georgie W. Arnold and Laura J. Arnold, Debtors. A final confirmation hearing was held on January 21, 1988 in Waterloo, Iowa. The matter was submitted to the undersigned for consideration on March 8, 1988. A...
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ORDER ON MOTION TO LIFT STAY A telephonic hearing upon debtors’ and trustee’s resistances to a motion to lift stay filed on behalf of the Small Business Administration (SBA) was held before this court in Des Moines, Iowa. Anita L. Sho-deen appeared on behalf of the debtors. David Carter appeared on behalf of the Chapter 7 trustee, Donald F. Neiman. Linda R. Reade, Assistant U.S. Attorney,...
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ORDER ON OBJECTION TO PLAN On May 4, 1988 a hearing on confirmation of plan was conducted in Council Bluffs, Iowa. Among the participants at the hearing were C.R. Hannan, the debtors’ counsel, and Anita L. Shodeen, the standing Chapter 12 trustee. The sole issue before the court is whether the debtors’ proposed deedback of certain farmland is subject to trustee’s fees. The court ordered b...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on April 6, 1988, on a motion by the trustee, Kathryn Page (“trustee”) for approval of a settlement of a law suit (“the settlement”), “The Bank of New England, N.A., Plaintiff, vs. Hanson Industries, Inc. and Steven D. Hanson, Defendants”, originally commenced in Hennepin County District Court (File No. ...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on April 21, 1988, on plaintiffs’ motion for partial summary judgment as to counts one, four and five of the complaint. Ann Morelli Spencer appeared on behalf of plaintiffs, Northwest Automatic Products, Inc. (“Northwest”) and its parent corporation, DOLA International Corp. (“DOLA”); Edward F. Fox appea...
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MEMORANDUM ORDER This proceeding came on for hearing on the defendant’s motion for summary judgment. William I. Kampf appeared for the plaintiff, Walter R. Falk. Scott A. Johnson appeared for the defendant, Elaine S. Heck-er. Based on the affidavits, memoranda of counsel, and the file of this proceeding, I make the following: MEMORANDUM ORDER Walter R. Falk is the debtor-in-poss...
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS INTRODUCTION This matter is before the Court on a Motion To Dismiss (hereinafter the “Motion”) filed by certain Defendants in two consolidated adversary proceedings. The Motion is based upon Bankruptcy Rule 7012 and Rules 12(b)(1) and (h) F.R.Civ.P. for lack of jurisdiction over the subject matter. FACTS On December 24, 1987, Clark Oil & Refining Corpor...
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ORDER GRANTING IN PART PLAINTIFF’S MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT Plaintiff Kansas National Bank & Trust Company seeks a determination that the debts of John A. Kroh and George P. Kroh are nondischargeable in bankruptcy pursuant to 11 U.S.C. §§ 523(a)(2)(A) and (a)(2)(B). The Bank also seeks to hold John liable for George’s debt ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT Plaintiff Capital City Bank & Trust (the “Bank”) seeks nondischargeability of the debt of George P. Kroh pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(2)(B). The Bank bases its case against George on an alleged principal-agent relationship between George and his brother, John. Both brothers are debtors in Chapter 11 cases in which trustees ...
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88 B.R. 997 (1988) In re KROH BROTHERS DEVELOPMENT COMPANY, Kroh Brothers Realty Company, 8880 Ward Parkway Associates, Kroh Investments I, Inc., Debtors. Nos. 87-00640-1-11, 87-00641-1-11, 87-00643-1-11 and 87-01263-1-11. United States Bankruptcy Court, W.D. Missouri. August 9, 1988. Paul Hoffman, Kansas City, Mo., and Mark Lieberman, Rosenthal & Schanfield, Chicago, Ill., for Mut. Benefit L...
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MEMORANDUM OPINION Rodney DeWayne Minniear and Beatrix Gisela Minniear filed their joint petition for relief under Chapter 7 on April 27, 1987. It was a “no asset” estate and debtors were discharged on August 10, 1987, and the case closed in November of 1987. On November 25, 1987, the law firm of Shug-hart, Thomson & Kilroy and the firm of Douglas C. Miller, P.A., neither of whom was list...
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MEMORANDUM AND ORDER This matter is before the court on competing motions for summary judgment. Norwest Bank (Bank) filed its Motion for Summary Judgment of Dismissal on March 22, 1988, and the trustee, William P. West-phal (Trustee), filed a Cross-Motion for Summary Judgment on March 30, 1988. Westphal, a successor Chapter 7 trustee, commenced the instant adversary action on March 6, 198...
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MEMORANDUM OPINION This appeal from the United States Bankruptcy Court, District of South Dakota, raises the question of whether the appellant, the United States of America acting through the Small Business Administration (SBA), violated the automatic stay provision of 11 U.S.C. § 362(a) by retaining a check payable to the appellees, Harold Rinehart and Marilyn Rinehart, to preserve a right to ...
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This matter is before the Court on the resistance of the United States, on behalf of the Internal Revenue Service, to the debtor’s second proposed order approving settlement and action. This order stems from the parties’ resolution of their dispute over the amount of the IRS’s claim in the debtor’s bankruptcy. The debtor and the IRS, however, still disagree on the issue of present value payments ...
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