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All Reporters → collier-bankr-cas-2d → Volume 24

Opinions in collier-bankr-cas-2d Volume 24

OPINION Presently before the Court is the Bankrupt’s motion to dismiss a complaint to determine dischargeability of a debt. Because we find that the instant proceeding is governed by the decision in Brown v. Fels en 1 and that the lower court ruling is not res judicata of the instant issue, the motion to dismiss will be denied. 2 On September 28, 1979, Ernest R. Lilley, Jr. filed a volu...
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MEMORANDUM AND ORDER Daniel J. Devenay, as trustee in bankruptcy of Vancor Steamship Corp. (Vancor) moves for authorization to distribute the net proceeds of the March 9, 1978 sale of the T.E. Vantage Horizon (Horizon) to certain maritime lienors. The only obstacle to the trustee’s plan is a claim of Newport News Shipbuilding and Dry Dock Company, Inc. (Newport News) of a maritime lien of...
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MEMORANDUM OPINION On September 2, 1977, Martin Place Hospital, a Michigan nonprofit corporation, filed a petition for an arrangement under Chapter XI of the Bankruptcy Act of 1898. Bankruptcy Act, Ch. 541,30 Stat. 544 (1898) (current version at 11 U.S.C.A. §§ 101-151326 (West 1979)) (hereinafter “Old Act”). On September 19, 1977, the bankruptcy court authorized the receiver of...
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MEMORANDUM OPINION Before the court is the objection by the Debtor to the Trustee’s proposed distribution. The essential facts are undisputed. Debtor, Mary Jane Zimmerman, individually, filed this voluntary bankruptcy petition under Chapter 7 on August 11,1986; a corporation filed a related Chapter 7 and James R. Huff was appointed Trustee in both cases. Under the Bankruptcy Rules th...
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MEMORANDUM AND ORDER ON AMENDED MOTION FOR SUMMARY JUDGMENT The plaintiffs assert a lien, pursuant to Indiana law, on a portion of the debtor’s personal property. The defendant Textron, Inc. moves for summary judgment, claiming that the plaintiffs lack standing under *125 the Indiana law; that any security interest in the debtor’s property is voidable under Bankruptcy Code § ...
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MEMORANDUM OF DECISION On or about March 22, 1974 the plaintiffs delivered to the defendant, who was a partner in Liberty Coin Co., 200 Mexican 50 Peso gold coins. In connection with this transaction plaintiff Hae-Kyung Burris and the defendant executed a Memorandum Of Coin Loan Agreement, 1 which provided in part as follows: “It is agreed and understood between Liberty Coin Company and our...
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DECISION AND ORDER The involuntary petition in this case was filed on March 16, 1978, 1 prior to the enactment of Pub.L. No. 95-598, 92 Stat. 2549 (1978) (Bankruptcy Reform Act of 1978) (Code), on November 6, 1978. The provisions of the Code made changes not only in the structure of the court but also in the substantive law and procedure regulating cases to be filed under the C...
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Mann Farms, Inc. (debtor) filed its petition pursuant to Chapter 12 of the Bankruptcy Act. 1 As required by the Act, debt- or filed its Plan of Reorganization (Plan I). In Plan I, it classified a debt of more than $385,000 held by the Traders State Bank of Poplar (bank) as a disputed claim. Plan I further specified that the validity of the bank’s lien status “is to be determined in a...
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The United States appeals the decision of the Bankruptcy Court affirmed by the District Court that both general unsecured creditors who filed timely claims and those who did not file timely claims because they received no notice of the bankruptcy are to be paid ahead of priority claimants who also filed late claims because they received no notice and had no knowledge of the bankruptcy. Because ...
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ORDER The objections of City National Bank of Birmingham to the allocation of certain administrative expenses against the “Bondholder Fund” brought the issues involved herein before the Court. This matter came on regularly to be heard before this Court on October 7, 1979. The hearing was continued until October 16, 1979 and was concluded on the following day. Having considered the objections, the...
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MEMORANDUM OPINION Plaintiff Cornwell Quality Tools (“Corn-well”) filed a complaint objecting to dis-chargeability of debts under 11 U.S.C. § 523(a)(2)(A) and (B) (the “Complaint”). The Complaint alleges that debtor, Joseph L. Rodgers (“Rodgers” or “debtor”), used a false financial statement in order to become a dealer for Cornwell. The Complaint further alleges that Rodgers committed “actual fra...
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DECISION AND ORDER ON MOTION TO DISMISS COMPLAINT In this Chapter XI Bankruptcy Act 1 case, Carnegie Industries, Inc. (“Carnegie”), a debtor in possession, has filed a Rule 12(b)(6) 2 motion to dismiss a complaint filed against it by plaintiff, Silver, Feigen & Druchner, which, because of the introduction of matters outside the pleading(s), must procedurally be treat...
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*852 OPINION OF THE COURT Debtors, FRG, Inc. and FRP Limited Partnership a/k/a Franklin Realty Partners, agreed to pay Bruce Manley $100,000 in settlement of a lawsuit brought by Manley against them in the United States District Court for the Eastern District of Pennsylvania, for the recovery of commissions and benefits due him by reason of his former employment with the debtors....
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*170 MEMORANDUM OPINION The plaintiff, Union Mutual Life Insurance Company, and a subsidiary plaintiff, Union Mutual Stock Life Insurance Company (plaintiffs “Union Mutual”) issue insurance in the greater metropolitan area of the District of Columbia. The defendant, Julian George Murphy (“Murphy”), was a broker engaged with Union Mutual over a period of time prior to 1977. The de...
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MEMORANDUM OPINION AND ORDER This matter came under the Court’s consideration upon the Complaint of Ohio Citizens Trust Company To Determine Dis-chargeability of the debt of the Bankrupt to the Plaintiff Bank, pursuant to Section 17(a)(2) of the Bankruptcy Act. Section 17 describes debts not affected by a discharge in bankruptcy, specifically: “ * * * liabilities for obtaining money or proper...
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OPINION Before the court is the chapter 13 trustee’s motion to convert this case to chapter 7 pursuant to 11 U.S.C. § 1307 on the ground that debtor is ineligible for relief under chapter 13 because her noncontin-gent, liquidated, unsecured debts exceed the $100,000.00 limit set forth in 11 U.S.C. § 109(e). 1 As we find that disputed debts of a contractual nature are liquidated...
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OPINION STATEMENT OF FACTS Durand Milling Company, Inc. (“Du-rand”) was a grain elevator operation in Durand, Michigan for more than 15 years. It was a Michigan corporation with a primary business purpose of processing, selling and storing various types of grain. Its president and chief operating officer during all relevant times of the present lawsuit was Dean R. McConkey (“McConkey...
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This appeal involves yet another set of disputes arising from the Chapter 11 reorganization of the five debtors involved in the Miami Center Project. The Bank of New York, the appellant and proponent of the confirmed plan of reorganization, challenges orders of the district court reversing the junior classification and equitable subordination of the lease claims of Olympia & York Florida Equity Co...
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MEMORANDUM OPINION Debtor Kroh Brothers Development Company, renamed the Kroh Operating Limited Partnership (“Kroh”) after confirmation of its Chapter 11 plan, sued defendant National Fidelity Life Insurance Company (“NFL”) to recover, pursuant to 11 *1013 U.S.C. §§ 547 and 550, four alleged preferential transfers made by Kroh to NFL within 90 days and one year before the dat...
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ORDER DIRECTING DISBURSEMENT OF FUNDS TO SECURED CREDITOR — GIBRALTAR SAVINGS ASSOCIATION The claim of Gibraltar Savings Association (Gibraltar) came on for hearing on September 12, 1980, before the undersigned Judge of the above-entitled court. The claim arises in the case of In re Holiday Mart, Inc., Bk.No. 77-00565 (D.Hawaii, filed Dec. 30, 1977). James N. Duca of the law firm of Woo, ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION TO COMMENCE SUIT FILED BY NEW YORK LIFE INSURANCE COMPANY On July 20, 1990, a hearing was held in this Court on the “Motion of New York Life Insurance Company and New York Life Insurance and Annuity Corporation for Authority to Commence Suit Derivatively on Behalf of Reveo Against Various LBO Participants, and for Relief from the Automatic...
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MEMORANDUM OPINION The matter before the court is the Levin-son Steel Company’s (hereinafter “Levin-son”) Motion for Confirmation of Existing Severance Policy, and to Provide Key Employee Severance Arrangements. 1 On March 7, 1990, Levinson filed a petition for relief under Chapter 11 of the Bankruptcy Code. Levinson continues in the management of its business and property as Debt- or-in-Poss...
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*298 MEMORANDUM OF OPINION AND ORDER This matter came on for trial upon the complaint of Vera Szuch (Plaintiff) to have the Court determine the dischargeability of various debts and obligations contained in an order and journal entry of the Cuyahoga County Court of Common Pleas, Szuch v. Szuch, Case No. 83 D-145467, 1983. Following a trial on the matter, the Court has ...
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OPINION AND ORDER This is an appeal from a ruling of The Honorable John J. Galgay, Bankruptcy Judge,1 holding that administrative efforts by The City of New York to revoke the Certificate of Occupancy of a nursing home owned by the debtor violated the automatic stay provisions of Rule 12-43 of the Rules of Bankruptcy Procedure, and enjoining the revocation proceedings under authority of Section 41...
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MEMORANDA THIS MATTER comes before the court for a determination of whether the debtor may avoid under 11 U.S.C. Section 522(f), a lien on his residence held by his former spouse under a divorce decree. I conclude that the lien is not avoidable. FACTS The debtor, Michael Robert Holtzhauser, and his former spouse, Janet L. Holtzhau-ser, were married on December 13, 1980. The debtor purchased...
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*655 OPINION I. THE LEGAL SETTING or HOW LAWYERS THREATEN TO DEPLETE OUR FORESTS The dispute which is the subject of this decision involves directly two of the named defendants, and, depending on the outcome of that dispute, other defendants and the plaintiff, the trustee in bankruptcy of Eastern Freight Ways, Inc. (Eastern). Both Eastern and its affiliate, Associated T...
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MEMORANDA This Chapter 11 case presents the issue of whether the amount of a secured claim for purposes of the plan of reorganization is determined by the value of collateral on the date the case was commenced or, alternatively, on a date in close proximity to the date of confirmation of the plan. Also before the court is a dispute regarding the application of adequate protection payments...
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MEMORANDUM OF OPINION AND ORDER I. This matter is before the Court upon the motion of the City of Toledo, Ohio (the City) seeking a dismissal of the case trustee’s action to recover an alleged preferential transfer, based upon a non-waiver of sovereign immunity. Upon the findings and conclusions set forth herein, said motion is denied. The Debtor, Cook, United, Inc., caused to b...
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MEMORANDUM DECISION Vanderpark Properties, Inc. (“Vander-park”) is again before the court pursuant to a decision by the Ninth Circuit Court of Appeals reversing this court’s decision that the trustee of Windmill Farms, Inc., (“WFI”) could assume a lease of Vanderpark’s commercial property. See, In re Windmill Farms, Inc., 841 F.2d 1467 (9th Cir.1988). In its reversal and remand...
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MEMORANDUM AND ORDER QUASHING RULE 205(a) EXAMINATION This memorandum concerns a Motion to Vacate an Order Directing Examination Under Bankruptcy Rule 205(a) and to Quash Subpoena Duces Tecum issued pursuant to the Order. The moving party is the E. I. DuPont Company, a post-filing supplier of certain petroleum products. On October 31, 1975, the Debtor filed a voluntary petition stating it...
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This bankruptcy case presents two questions, one substantive, the other procedural. The procedural question is whether the *536 bankruptcy court abused its discretion in granting the defendant-appellee Commissioner of Internal Revenue Service (Commissioner) 20 extra days in which to file his notice of appeal from the judgment of the bankruptcy court entered on April 10, 1978. The s...
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DECISION ON OBJECTION TO ALLOWANCE OF A PRIORITY CLAIM This debtor-in-possession has objected to its landlord’s priority claim for tax adjustments and common area maintenance charges. Both obligations were expressly imposed under the written lease between the parties that had been entered into before the filing of the petition under Chapter XI of the former Bankruptcy Act. The landlord ba...
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MEMORANDUM OPINION The chronologies set out by the parties are relatively similar. The point of divergence comes when each applies the facts to the law. The facts as they are presented to the court are as follows. David Rogne is the President of IDK Logging, Inc. (hereinafter IDK) and his wife Sandra is the Secretary of the corporation. Over a three year period IDK entered into contracts ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come on to be heard on May 30, 1990, upon the complaint of RONALD EVERETT TIDWELL (the “debtor”) against ANNE TEGTMEYER (the “creditor”) to determine the discharge-ability of a debt pursuant to 11 U.S.C. Section 523(a)(5), and upon the Counterclaim of the Creditor also pursuant to 11 U.S.C. Section 523(a)(5), and the Court having heard t...
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MEMORANDUM AND ORDER On October 2, 1978 Food Fair, Inc., J. M. Fields, Inc., Hills Supermarkets, Inc., F. F. Financial Corporation, F. F. Financial Corp. of New Jersey, F. F. Financial Corps, of Florida, Neweorp Supermarkets, Inc., Mark Distribution Corporation, Fixtures and Equipment Leasing Co., Inc., and Drug Pride, Inc., (the Debtors) each filed a petition for an arrangement under Cha...
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MEMORANDUM OF DECISION ON MOTION BY DEBTOR TO SELL FREE AND CLEAR OF PREPAYMENT PREMIUM AND DEFAULT INTEREST PROCEDURAL HISTORY 433 South Beverly Drive, a California limited partnership, is the debtor and debt- or in possession pursuant to a voluntary petition under Chapter 11 of the Bankruptcy Code filed on August 24, 1988 (“Debt- or”). 1 The Debtor’s sole asset is an int...
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FINDINGS OF FACT, MEMORANDUM AND CONCLUSIONS This is an adversary proceeding on the Complaint of Yankee Leasing Company, filed November 20, 1978, to reclaim personal property. A continued hearing was held on January 9, 1979 which was further continued to March 5, 1979 on which date the attorney for the trustee notified the Court that he had no further testimony to introduce and that, ther...
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OPINION OF THE COURT This is a Chapter 13 bankruptcy case. The Internal Revenue Service (“IRS”) appeals from the judgment of the District Court for the Eastern District of Pennsylvania, which affirmed the Bankruptcy *116Court’s ruling that a claim for nonpecuni-ary loss tax penalties may be subordinated to the claims of other general unsecured creditors, absent a showing of misconduct by the gove...
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The question presented by this appeal is whether a trustee in reorganization under Chapter X1 can be held personally liable on his bond for negligent failure to pay a claim for services furnished the debtor in reorganization in the course of continuing the debtor’s business under court order. The Bankruptcy Judge held that he could not be so held. On appeal, the District Judge, after expressing do...
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632 F.2d 461 7 Bankr.Ct.Dec. 181 In re Larry Ellis WEAVER, Debtor.Joe M. FLOURNOY, Chapter XIII Trustee, Appellant,v.TRUST COMPANY OF COLUMBUS, Appellee.In re Betty Jean ADAMS, Debtor.Joe M. FLOURNOY, Chapter XIII Trustee, Appellant,v.TRUST COMPANY OF COLUMBUS, Appellee. Nos. 79-1618, 79-1619. United States Court of Appeals,Fifth Circuit. Dec. 8, 1980. Ron S. Iddins,...
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ADJUDICATION A. FINDINGS OF FACT 1. The Plaintiff, STEPHEN RASLA-VICH, (“the Trustee”), is the Trustee of the Debtor, OLD WORLD CONE COMPANY (“the Debtor”). The Debtor filed the voluntary Chapter 7 bankruptcy case underlying this proceeding on January 8, 1990. 2. The instant proceeding, seeking to avoid certain allegedly preferential transfers to the Debtor’s President, Defendan...
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MEMORANDUM AND ORDER Appellants, the Secretary of Agriculture and the Department of Agriculture, its agents, and employees (collectively referred to herein as the “Secretary”), appeal from an order of Judge Burton R. Lifland of the Bankruptcy Court enjoining the Secretary from prosecuting an administrative proceeding against Northern Boneless Meat Corporation (“Northern”) for alleged violations...
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MEMORANDUM OPINION The Trustee in the above-entitled bankruptcy proceeding has objected to the claim of First Wisconsin National Bank of Milwaukee, insofar as it would attribute a priority status to the amount due this creditor. In response, the Bank has set forth an ancient basis for its alleged priority position, claiming a common law right of distress as a commercial landlord, which it asserts...
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OPINION A. INTRODUCTION On June 14,1990, RESOLUTION TRUST CORPORATION (“RTC”), as Receiver for the Plaintiff in this proceeding, NASSAU SAVINGS AND LOAN ASSOCIATION (“the Plaintiff”), filed a Motion for Partial Summary Judgment (“the Motion”) pursuant to Bankruptcy Rule (“B.Rule”) 7056 seeking judgment in its favor with respect to Count VII of the Complaint in the above-captioned pro...
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MEMORANDUM AND ORDER This matter came to be heard on the motion of the Sandwich State Bank (The Bank) to dismiss debtor’s Chapter XII proceeding or to adjudicate the debtor a bankrupt. Extensive documentary and testimonial evidence was presented. Important questions were raised regarding adequate protection and “cram-down” of the plan of arrangement. The court having examined all of the evidenc...
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ORDER APPROVING IN PART AND DENYING IN PART APPLICATION FOR AWARD OF ATTORNEYS FEES FOR GORDON & SILVER, LTD. FACTS On August 28, 1989, Ginji Corporation, dba The Aladdin Hotel & Casino (The Aladdin) filed its chapter 11 bankruptcy petition. Gordon & Silver, Ltd. (G & S) was authorized to be employed as debtor’s counsel pursuant to an order entered on September 1, 1989. On September ...
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918 F.2d 136 24 Collier Bankr.Cas.2d 230, 20 Bankr.Ct.Dec. 1987,Bankr. L. Rep. P 73,670 In re: Caesar C. LATIMER, Debtor.Kenneth L. STAINER, Appellee,v.Emily L. LATIMER; the unknown heirs, executors,administrators, devisees, and assigns of Maria L. Latimer,Deceased; Julia Latimer Warren, administratrix of theestate of Maria L. Latimer, Deceased; Julia Latimer Warren,individually; Ret...
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MEMORANDUM & ORDER C. Orvis Sowerwine, as trustee of REA Express, Inc., (REA), has moved for authority to discontinue the appeal of an antitrust action, REA Express Company, Inc. v. California Motor Transport Company, which is presently pending before the Court of Appeals for the Ninth Circuit. After hearing on notice held on March 24 at which time the objections of Wisehart, Friou & Koch as form...
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The bankrupt and appellee herein, Robert J. Folliard, Jr., was Vice-President, Sales Manager and a stockholder 1 of Welcome Aboard Vacation Center of Washington, D. C., Inc. (Welcome Aboard), a travel agency which had been in existence since 1969. Welcome Aboard had, since 1969, been authorized by the Air Traffic Conference of America to sell flight tickets for all of the Conference’...
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Appellant NCNB objected to Dr. Bow-yer’s discharge in his Chapter 7 bankruptcy proceeding; but, the bankruptcy court allowed it, and the district court affirmed. Because Bowyer’s use of non-exempt funds on the eve of bankruptcy, including conversion to exempt assets (such as satisfaction of his homestead mortgage), constituted intent to hinder or delay a creditor, we REVERSE. I. Bowye...
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Mrs. Robinson appeals from a district court decision discharging in bankruptcy her former husband’s obligation to pay ar-rearages in alimony owed her under a California decree. Because the appeal from the Bankruptcy Court was not timely, we reverse the decision of the District Court. I. In 1971, Helen Robinson sued her husband, Leland Robinson, for divorce in a California state court. That co...
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The bankrupt appeals from the denial by the bankruptcy judge, affirmed by the district court, of his claim that three qualified trusts under the Keogh plan 1 are exempt from the claims of his creditors. The parties do not dispute the facts. The bankrupt was a doctor who was self-employed who had contributed sums totalling $13,481 to his own retirement plan. Each of the plans con...
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DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT REGARDING GUARANTOR’S CLAIM In this latest of the decisions spawned by the bankruptcy of Wingspread Corp. (Wingspread) and its twelve debtor subsidiaries (collectively, the Debtors), the ultimate issue is the allowability of a sizeable administrative claim filed by Gulf & Western, Inc. (G & W). Resolution of that issue posed in these motions ...
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This appeal arises from a determination by a bankruptcy judge in the Middle District of Alabama of a legal fee sought by William V. Neville, Jr., an attorney for a trustee in bankruptcy in proceedings before that judge. Neville, contending that the fee was inadequate, appealed to the district court, which affirmed the decision of the bankruptcy judge. In this further appeal, Neville argues that th...
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651 F.2d 1349 7 Bankr.Ct.Dec. 442 In the Matter of KING RESOURCES COMPANY and InternationalResources, Ltd.,Debtors. KING RESOURCES COMPANY and International Resources,Ltd., Debtors-Appellees,v.PHOENIX RESOURCES COMPANY, Appellant. No. 79-1256. United States Court of Appeals,Tenth Circuit. Argued Oct. 19, 1980.Decided March 13, 1981. Miles M. Gersh, Denver, Colo. (Wi...
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OPINION The issues which confront us in this case are whether (1) the claims of the bankrupt’s employees for vacation and holiday pay benefits and (2) the union’s claim for contributions to a health and welfare fund are entitled to priority under the Bankruptcy Act (“the Act”). We conclude that they are hot because even if they are in the nature of wages, they were earned more than three months be...
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BANKRUPTCY OPINION This is an appeal from the order of the Bankruptcy Court, John J. Galgay, Bankruptcy Judge, dated June 18, 1980, denying the motion of defendant, Banco Urquijo, S.A. (Banco Urquijo), to dismiss Counts 2 and 3 of the complaint filed by Sidney Danziger, Trustee in Bankruptcy (Trustee) of Roscar Steel Scrap and Metals Corporation (Roscar). Banco Urquijo contends that the decisio...
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MEMORANDUM OPINION AND ORDER On February 8, 1980, the trustee in bankruptcy for Seeburg Corporation, acting on the authorization of the bankruptcy judge, discharged certain of Seeburg’s employees and terminated certain of its operations. In so doing, the trustee allegedly failed to notify and negotiate with the collective bargaining representative of the terminated *122 employees. The NLRB ha...
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MEMORANDUM OF OPINION AND ORDER I. The matter before the Court is the motion of Randolph Richard McKinney (Debt- or), to show cause why Pennsylvania Higher Education Assistance Agency (PHEAA) should not be held in contempt for having violated the injunctive provisions of § 524 of the Bankruptcy Code. [11 U.S.C. § 524(a)(2) ]. Upon a duly scheduled hearing, the Court has examined the ...
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Appellant William R. Turpin filed a voluntary petition in bankruptcy on December 16, 1976. On April 6, 1977, Appellee, the trustee in bankruptcy, filed a complaint against Turpin and City National Bank of Austin in the bankruptcy court. The complaint asserted that the bankruptcy trustee was entitled to certain funds held for the credit of Turpin by the bank as trustee of the Austin Neurosurgical ...
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Drawn for battle, a state court receiver and a bankruptcy trustee challenge each other’s power over funds of the bankrupt, Teltronics, Ltd. The issue here is whether money held by a state court receiver under the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill.Rev.Stat. ch. 121%, § 261 et seq., is property of the bankrupt’s estate and thus subject to surrender to the bankruptcy t...
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Ackley State Bank (the Bank) appeals from a final order entered in the United States District Court 1 for the Northern District of Iowa, affirming the Bankruptcy Court’s 2 determination that Samuel Thielke (Samuel) did not have a present vested interest in certain joint bank accounts (accounts), with his uncle, Robert Thielke (Robert), and consequently the bank could not s...
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Gordon Stahn filed for chapter twelve bankruptcy in South Dakota on July 25, 1988. 1 Under 11 U.S.C. § 1224 (1989), a confirmation hearing on the plan must be held within forty-five days after the filing. There had been no confirmation hearing in this bankruptcy proceeding because the bankruptcy court granted another creditor relief from the stay to allow the creditor to determine a deficiency ...
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A Bank makes a large loan to a corporation. A corporate shareholder guarantees repayment of this Basic Loan. At the same time the guarantor himself owes money to the corporation — a debt in which the Bank has a secured interest as partial collateral for its Basic Loan. The corporation goes bankrupt. The guarantor just before bankruptcy pays a sum of money to the Bank— money which he claims at o...
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This is an appeal from the dismissal of a complaint seeking recovery of alleged over-payments of oil and gas royalties. Plaintiff, successor to a chapter 11 debtor in possession, sought recovery on three theories, including a bankruptcy law claim of a trustee’s right to pursue actions as an hypothetical lien creditor under 11 U.S.C. § 544(a)(1). The district court dismissed the action as time bar...
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In this appeal from a bankruptcy order, an attorney for a group of creditors, Mark Immormino, was to indemnify the trustee for losses incurred in the public sale of certain assets from the estate. The district court reversed the decision of the bankruptcy court, holding that Mr. Immormino never agreed to any indemnification and that the bankruptcy court lacked the authority to require Mr. Immormi...
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*129MEMORANDUM OF DECISION AND ORDER This is an appeal from a decision rendered by Chief Judge Albert Párente of the Bankruptcy Court denying the discharge of the bankrupt, Leonard Weinbaum.1 (“Weinbaum”). After a hearing on this adversary proceeding which was commenced by a creditor, National American Company (“National American”), Judge Párente concluded that Weinbaum’s discharge must be denied ...
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921 F.2d 626 109 A.L.R.Fed. 827, 59 USLW 2417, 24Collier Bankr.Cas.2d 308,21 Bankr.Ct.Dec. 257, Bankr. L. Rep. P 73,743 In re The GEORGE WORTHINGTON CO., Debtor. Nos. 89-3279, 89-3286. United States Court of Appeals,Sixth Circuit. Argued July 24, 1990.Decided Dec. 5, 1990. Nathaniel R. Jones, Circuit Judge, concurred and filed opinion. Alan R. Lepene, Thompson...
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This case is before this Court on appeal for the third time following two remands to the Bankruptcy Judge. Neither the factual recitations nor the discussion of law set forth in the prior opinions 1 of this Court or the Bankruptcy Judge will be repeated in *952 full. 2 In response to this Court’s latest (i. e., second) remand (Nov. 14, 1978), the Ba...
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Brazier Forest Products, Inc. and Brazier Forest Industries, Inc. (“Brazier”) are lumber manufacturers. To finance its operations, Brazier obtained loans from appellee Rainier National Bank (“Rainier”), and gave Rainier security interests in its accounts receivable. The United States Forest Service (“USFS”) owned the land on which Brazier acquired timber cutting rights. Brazier paid the USFS a set...
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OPINION The debtors objected to the Internal Revenue Service’s (“I.R.S.”) penalty assessment pursuant to Internal Revenue Code § 6672 on the grounds that the assessment, which occurred during a prior bankruptcy case, violated the automatic stay of 11 U.S.C. § 362 and was, therefore, void. The United States appeals the order granting the objection. We REVERSE. FACTS On February 2...
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*260 ORDER On this 11th day of September, 1990, the Motion for Summary Judgment filed by the Defendants herein (Docket Entry No. 9) and Brief in Support (Docket Entry No. 10) as well as Plaintiffs Response to Defendants’ Motion for Summary Judgment (Docket Entry No. 11) and Brief in Support (Docket Entry No. 12) and the Motion for Summary Judgment filed by the Plaintiff herein (D...
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*963ORDER This matter comes before the Court on “Motion for Leave to Intervene” filed by John J. Goger as trustee in bankruptcy for the estate of Dirty Don’s P.A. Palace, Inc. Having considered the motion and the briefs submitted by the parties the Court makes the following decision. FINDINGS OF FACT Benjamin C. Abney, (“Trustee”), trustee for the estate of Environmental Electronics Systems, Inc....
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ORDER This matter comes before the Court on motion for judgment on the pleadings filed by plaintiff C & S Emory Bank. The Court, having considered the motion, the briefs and documents submitted by the parties and the pleadings on file, makes the following decision. FINDINGS OF FACT On August 15, 1979 Ben C. Abney, (“Trustee”), the trustee in bankruptcy for Environmental Electron...
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ORDER On this 24th day of September, 1990, Defendant’s Motion for Summary Judgment (Docket Entry No. 4) with Brief in Support (Docket Entry No. 5) as well as the Response of Plaintiff to Motion of Defendant for Summary Judgment and Brief in Support (Docket Entry No. 7) came before this Court for consideration. After review of these pleadings, this Court does hereby enter the following Findings of...
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Abraham Davis, the trustee in bankruptcy for SLF News Distributors, Inc. (SLF or the bankrupt), brought this action under section 67(d)(2)(a) of the Bankruptcy Act, 11 U.S.C. § 107(d)(2)(a) (1976) (repealed 1978), to set aside as fraudulent a $10,000 transfer made by SLF to James M. Cook Construction Company (Cook). The bankruptcy court entered judgment against Cook and the district court affirme...
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ORDER On this 4th day of September, 1990, the Motion for Summary Judgment and Brief in Support filed by the Defendant, Northwest National Bank, (Docket Entries No. 26 and 27 respectively), Defendant’s Amendment to Brief in Support of Motion for Summary Judgment (Docket Entry No. 32) and the Response and Objection of the Plaintiff, Retail Marketing Company, to Defendant Northwest National ...
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MEMORANDUM and ORDER AND NOW, this 10th day of April, 1981, upon consideration of the Motion by Butcher Boy Meat Market, Inc. for reconsideration of the Order of Dismissal dated March 12, 1981, it appearing that an appeal from that Order has been filed, it is ORDERED that the Motion for Reconsideration is hereby DENIED for lack of jurisdiction. The general rule is that once a no...
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This is an appeal by Harold C. Abramson, acting as trustee in bankruptcy under Chapter XI of the old Bankruptcy Act,1 *548former 11 U.S.C. § 1, et seq., of the district court’s order refusing to set aside an alleged transfer of real property within one year of the filing of debtor’s bankruptcy petition. The district court granted summary judgment for the defendant-appellee, Lakewood Bank and Trust...
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MEMORANDUM OF DECISION The three major questions raised by these motions are (1) whether a judicial lien creditor, having initially failed to object to any of the debtor’s exemption claims, is foreclosed from defending a lien avoidance motion by objecting to the validity of the exemption, (2) whether the pre-bankruptcy perfection of a lien, coupled with a concurrent waiver of a potential ...
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MEMORANDUM & ORDER Defendant’s motion to dismiss the complaint asks this Court to determine whether an adversary proceeding seeking recovery of preferential payments and improper transfers of debtor’s property can be brought after a plan of arrangement in a Chapter XI proceeding is confirmed. After review of the argument presented on July 30, 1980, the papers submitted by counsel, the sta...
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MEMORANDUM OPINION DISCHARGING STUDENT LOANS At the conclusion of the hearing on the instant complaint to discharge student loans, the Court informally opined that the debtor could not discharge student loans which became due less than five years before the filing of her bankruptcy petition without having made any payments. The Court concluded that the debtor had failed to establish the necessa...
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Runnion appeals the district court’s af-firmance of the bankruptcy court’s discharge of the bankrupt Pedrazzini’s debt to Runnion. Jurisdiction is based on 28 U.S.C. § 1291. We affirm. Carl Pedrazzini, a swimming pool contractor, contracted with Runnion to build a swimming pool on Runnion’s property. 1 The contract provided for progress payments to be made as the work was comple...
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AMENDED ORDER On July 25, 1990, William Douglas Pae-plow, the debtor herein, filed his Verified Complaint for Injunction under 11 U.S.C. Section 524 against Edmond W. Foley, R. Kent Rowe, R. Kent Rowe III, Jerry E. Huelat, V.L. Beagles, Betty Beagles, Pete Cassen, and Karen Cassen. The defendants filed their Verified Motion to Strike and Request for Expedited Hearing on August 14, 1990, to whic...
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647 F.2d 977 8 Bankr.Ct.Dec. 212, 31 UCC Rep.Serv. 1172 In the Matter of HOLIDAY AIRLINES CORPORATION, a CaliforniaCorporation, (formerly known as HolidayRecreational Resources and Holiday ResourcesCorporation), Bankrupt. Curtis B. DANNING, Trustee inBankruptcy of Holiday Airlines Corporation, a CaliforniaCorporation (formerly known as Holiday RecreationalResources and Holiday Resources C...
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*183 ORDER SUPPLEMENTING "ORDER DIRECTING U.S. TRUSTEE TO CONCLUDE 341(a) MEETING” FILED JULY 31, 1990 AND DETERMINING INSUFFICIENCY OF “UNITED STATES TRUSTEE’S SHOW CAUSE STATEMENT ...” AND CONCLUDING § 341(a) MEETING There comes on for consideration the “United States Trustee’s Show Cause Statement Why the § 341(a) Meeting Should Not Be Conclu...
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OPINION This is an appeal by Fidelity Mortgage Investors, debtor in possession (“Debtor”), now Lifetime Communities, Inc., from an order of Bankruptcy Judge Roy Babitt which granted an application of Weil, Gotshal & Manges (“Weil Gotshal” or “petitioner”) the Debtor’s attorneys, made after their fees as attorneys for Debtor had been determined, awarding interest thereon from the date when the Deb...
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By a complaint filed on April 19, 1979, the trustee seeks a judgment directing the surrender and turnover by the First National Bank of Long Island (“the bank”) of all funds held by the bank in a so-called “Keogh account” in the name of the bankrupt, Luigi Baviello. The bank and the bankrupt filed answers which deny the material allegations of the complaint. The bank’s answer also alleges that ...
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MEMORANDUM DECISION ACTION Debtor/Plaintiff Harry Frederick Claus-sen (“Claussen”) filed an adversary complaint to determine the validity and priority *1012 of a statutory lien arising out of emergency medical services provided to his indigent wife which were paid for by Brookings County (“County”), South Dakota. This matter mandates that the Court balance valued competi...
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*133MEMORANDUM OPINION AND ORDER Citizens Commercial and Savings Bank (hereinafter Bank) filed two claims in Bankruptcy Court against the estate of Water Wonderland, Inc. These are claims # # 12 and 13 of the estate. Both claims filed by the Bank were filed on claim forms which are available from the Bankruptcy Court. Paragraph 10 of that form reads as follows: “This claim is a general unsecured c...
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MEMORANDUM RE DISCHARGEABILITY OF A DEBT On November 25, 1977, the plaintiff, Household Finance Corporation, filed a complaint seeking a determination by this Court that pursuant to Section 17(a)(2) of the Bankruptcy Act, 11 U.S.C. § 35(a)(2), a debt owed to it by the defendant/bankrupt, Errol G. Duplessis (the “bankrupt”) is non-dischargeable. The plaintiff alleges that the bankrupt, through the ...
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Heard on the complaint of Amelia Joyce to have certain claims against the Defendant, attorney for Landlord Eviction Service (a self-help eviction service), declared non-dischargeable under §§ 17(a)(2) and 17(a)(8) of the Bankruptcy Act, 1 11 App.U.S.C.A. §§ 35(a)(2), 35(a)(8) (1979). By agreement, that hearing was confined to the issue of the dischargeability of said claims, with a separate hea...
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RULING ON TRUSTEE’S MOTION TO DISMISS A hearing was held on June 11, 1990, on the U.S. Trustee’s motion to dismiss. James H. Cossitt appeared on behalf of the Debtor and John Waters appeared on behalf of the U.S. Trustee. At the conclusion of the hearing, the Court took the matter under advisement and now considers it fully submitted. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2...
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MEMORANDUM DECISION ON MOTION FOR RECONSIDERATION OF SUA SPONTE ORDER STAYING ADVERSARY PROCEEDING AND LIFTING AUTOMATIC STAY This motion for reconsideration poses two issues: (1) whether a bankruptcy court has inherent power to abstain (or defer to state courts) on grounds distinct from the statutory bankruptcy abstentions that are authorized by 11 U.S.C. § 305 and 28 U.S.C. § 1334(c); a...
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649 F.2d 1229 7 Bankr.Ct.Dec. 1177, Bankr. L. Rep. P 68,323 In re F & T CONTRACTORS, INC., Bankrupt.David A. CUVRELL, Trustee, Plaintiff-Appellant,v.Richard MAZUR, Robert Warren and Leon Hadley, Defendants-Appellees,David A. CUVRELL, Trustee, Plaintiff-Appellee,v.OLD ORCHARD BY the BAY ASSOCIATES, Defendant-Appellant. Nos. 79-1058, 79-1059. United States Court of Appeals,Sixth...
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MEMORANDUM ORDER This proceeding came on for hearing on the plaintiffs’ motion for summary judgment. Randall L. Seaver appeared for the plaintiffs. Daniel W. Stauner appeared for the defendant. This court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334, and Local Rule 103(b). This is a core proceeding. Based on the memoranda and arguments of counsel, and the file in this proceeding...
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MEMORANDUM OF DECISION This proceeding was tried and submitted for decision on July 15, 1981. The issue presented is whether the trustee of the bankrupt corporation is entitled to an order marshaling the assets of the personal guarantors of the United Medical Research (“UMR”) indebtedness to the Small Business Administration (“SBA”) and requiring the SBA to first foreclose upon the p...
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This is an action to enforce the terms of a 1963 divorce decree that awarded to plaintiff one-half of defendant’s accumulated right under a United States Army retirement benefits program. Following a non-jury trial, the district court awarded plaintiff accrued and unpaid benefits in the amount of $34,641.90 plus interest from the date of judgment, and ordered defendant to maintain with the United...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on a Motion for Reconsideration of Order Approving Application for Compensation and for Payment of Dividends to Creditors filed by Century Bank at Orchard Road (“Century Bank” or “Creditor” herein), Metro National Bank’s Objection, Trustee’s Objection, and Century Bank’s Response to Objections. This Court held a hearing on th...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Two properties owned by Debtors and subject to liens in favor of Finance Factors and the Internal Revenue Service were sold under the jurisdiction of this Court free and clear of all encumbrances, with the liens attaching to the proceeds of the sale. The issue before this Court is whether or not Finance Factors, as the holder of a valid lien on both properti...
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MEMORANDUM DECISION AND ORDER Lloyd K. Holtz and Andrea Poe brought an adversary proceeding against Robert Mark Poe seeking determination that certain debts, including award of attorney fees incurred in litigation over child custody, should be excepted from discharge pursuant to 11 U.S.C. § 523(a)(5). The complaint has been confessed in part, and otherwise the matter has been submitted for *81...
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This case requires this Court to decide the yet unresolved issue whether a bankruptcy judge must consider every question of dis-chargeability of a debt de novo or whether the parties are collaterally estopped by a prior state court judgment determining the nature of the debt? Appellant is a judgment creditor of ap-pellee. The Court of Common Pleas of Hamilton County, Ohio awarded appellant...
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MEMORANDUM OPINION ON HELLER MOTION FOR SANCTIONS On July 26, 1989 Park Place Associates, an Illinois limited partnership (“Park Place or Debtor”), filed in this case a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. Shortly thereafter Heller Financial, Inc. (“Heller”), the principal secured creditor of Park Place, moved to lift the automatic stay under 11 U.S.C. § ...
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Leucadia, Inc. (formerly known as James Talcott, Inc.), a partially secured creditor, seeks an order directing the bankrupt, Isaac Silverman, and his attorneys, the firm of Leinwand, Marón, Hendler & Krause, to pay costs and expenses, including attorneys’ fees, incurred in defending against Silver-man’s motion to dismiss Leucadia’s complaint objecting to Silverman’s discharge. Silver...
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MEMORANDUM OF OPINION AND ORDER The Debtors, Sis Corp. and Sisters International, Inc. (Debtors) are before the Court for a confirmation hearing on their amended joint plan of reorganization (Plan). Although characterized as “reorganization”, it is undisputed that the Plan proposes a liquidation of the Debtors’ assets. By way of chronology, the Debtors caused to be filed their voluntary petitio...
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MEMORANDUM-DECISION The matter before the Court is a Motion for Determination of Disposable Income and Requirement for Turnover Thereof filed by Chapter 12 Standing Trustee A. Thomas Pokela (Trustee) and the resistance thereto filed by Debtors Myron and Joy Kuhlman (Debtors). A hearing was held April 17, 1990, and after briefs were filed the matter was submitted to the undersigned for con...
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This is an appeal from a decision of the Bankruptcy Court for the Southern District of New York (Roy Babitt, J.) disposing of two claims by Equitable Life Assurance Society of the United States and John Hancock Mutual Life Insurance Company (sometimes hereinafter collectively referred to as “claimants”) against the estate of United Merchants and Manufacturers, Inc. (hereinafter “debtor”) in a C...
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OPINION I. The issue central to both of these actions involves the allocation of the risk of financial loss on either the seller or the purchaser of property of estates in bankruptcy occasioned by subsequent events when the agreements of sale are silent as to the occurrence of those events. The property touched by the events following their purchase at open auction sales, in kee...
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DECISION ON FIRST EASTERN BANK’S DEMAND FOR A JURY TRIAL ON COATED SALES, INC.’S PREFERENCE ACTION I. FACTS On or about October 23, 1987, Coated Sales, Inc. (“CSI”) borrowed $5,000,000 from First Eastern (the “First Eastern Term Loan”), pursuant to a 1-year unsecured term loan agreement. The First Eastern Term Loan was evidenced by a demand note, dated as of the same day. The First E...
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This case addresses the issue of whether the filing of a state court suit by a debtor’s wife alleging fraudulent transfer of a homestead property, where that homestead property has been claimed as an exemption by her debtor husband in his bankruptcy case, violates the automatic stay imposed by the Bankruptcy Code. Because we find that the claim for fraudulent transfer of a homestead property be...
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ORDER This matter comes before us on defendant’s motions for summary judgment. The facts and issues are similar in each motion, and will be combined for determination herein. The present matter had its beginnings in debtors Chapter XI arrangement filed in 1975. A plan was confirmed in late 1975 and the arrangement estate was closed on December 14, 1979 by this Court. In that cas...
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MEMORANDUM OPINION L. T. Souder, Inc., the bankrupt, upon motion of the trustee, Robert 0. Tyler, Esquire, requested that the Court enter an order assessing administrative expenses and costs of collection against certain property presently in the trustee’s sole and exclusive possession, consisting of cash representing an account receivable subject to a lien in favor of the Internal Revenue Servic...
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*557 MEMORANDUM OPINION AND ORDER ON MOTIONS TO DISMISS AND/OR STAY sitting by designation. On February 27, 1990, Citicorp North America, Inc. (CNA) filed its complaint against the Trustee in these three jointly administered Chapter 11 cases, which complaint seeks a declaratory judgment pursuant to Bankruptcy Rule 7001(9) that CNA’s secured claims against the debtors be allo...
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Mark C. Halverson, the bankruptcy trustee in this matter, appeals from the district court’s 1 affirmance of the bankruptcy court’s 2 orders striking his objec *1390 tion to Steven and Judith Peterson’s claimed homestead exemption and granting summary judgment on the claimed exemption in their favor. Halverson argues on appeal that the district court erred in s...
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MEMORANDUM OPINION AND ORDER REGARDING APPLICATION BY HALIGMAN & LOTTNER, P.C. FOR INTERIM ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES THIS MATTER comes before the Court upon the Application by Haligman & Lott-ner, P.C. for Interim Allowance of Compensation and Reimbursement of Expenses filed February 12, 1990 and the Objections thereto filed by the Acting United States Truste...
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This is an adversary proceeding 1 commenced by the successor trustee of the estate of this former Chapter XI 2 debtor, seeking to have declared and imposed the liabilities of the various defendants, following the unauthorized withdrawal of funds of the estate by the original trustee, who at the time of the filing of the complaint, was said to be residing in Brazil. Th...
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OPINION OF THE COURT These consolidated appeals raise a number of interesting questions of bankruptcy procedure, centering on whether a defendant in an adversary action commenced in bankruptcy court has a seventh amendment right to a jury trial. Before reaching these questions, however, we must determine our jurisdiction. In particular, we must address: (1) whether we have jurisdiction, pursuan...
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MOTION FOR ORDER DIRECTING DEBTOR TO MAKE PAYMENTS DUE TO EMPLOYEE BENEFIT PROGRAMS On October 18, 1977, Jewish Memorial Hospital (“J.M.H.”) filed a petition for an arrangement under Chapter XI of the Bankruptcy Act 1 and was thereafter authorized to continue in the management and control of its operation and property as a debtor in possession. J.M.H. is a voluntary, not-f...
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OVERVIEW Debtor Laurence Neuton appeals a decision of the Bankruptcy Appellate Panel (BAP). The panel affirmed the bankruptcy court’s determination that 25% of the debt- or’s interest in a spendthrift trust, and all proceeds therefrom, are property of the estate. Neuton argues that his interest in the trust, because it vested after the bankruptcy petition was filed, was a contingent interest ...
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Trabefin, A.G. and Edward R. Fitzsim-mons appeal the district court’s dismissal of their bankruptcy appeal. The district *1470court dismissed Trabefin’s appeal under Northern District of California Local Rule 720-2 for failure to comply with Bankruptcy Rule 8006 which governs perfection of bankruptcy appeals. We affirm. FACTS AND PROCEEDINGS BELOW M. Nolden, the trustee of the bankrupt estate of E...
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MEMORANDUM OPINION THIS MATTER comes before the Court upon the adversary proceeding brought by the FDIC as receiver of the American Bank of Casper (Bank) in Wyoming against the debtor/defendant Peterson, a former officer of the bank. The complaint seeks a declaratory judgment that Peterson’s discharge in bankruptcy is not an injunction against FDIC’s suit against him to establish liability for ...
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OPINION ON JOINT MOTION FOR SUMMARY JUDGMENT AND/OR PARTIAL SUMMARY JUDGMENT Issue The joint motion for summary judgment and/or partial summary judgment in these related adversary proceedings raises the issue of the proper valuation of the replacement liens granted to certain reclamation creditors. While each of the reclamation creditors supplied the Debtor with different raw mat...
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MEMORANDUM OPINION The United States Trustee has requested the Court to alter its judgment and, instead of dismissing this case, enter an order converting it to a case under Chapter 7. The Debtor opposes this motion. For the reasons explained below, the U.S. Trustee’s motion will be denied. This Court’s memorandum opinion attempted to explain that the fundamental problem with converting a Cha...
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Wesley B. Huisinga, the United States Trustee in this bankruptcy case, appeals from the district court’s affirmance of the bankruptcy court’s order that the Trustee’s quarterly fee payments be prorated with David O. Carter’s Chapter 11 legal expenses for the purpose of distributing the bankruptcy estate’s assets. We reverse. I. The relevant facts are few and undisputed. On October 31, 1986, Juhl E...
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MEMORANDUM OPINION Before me for resolution is the motion of HHL Financial Service, Inc. (HHL) for nunc pro tunc approval of its employment by the debtor as a specialized collection agency. By consensual order entered January 25, 1990 I appointed HHL as agent for the debtor, effective as of November 14, 1989 (the date HHL's application seeking appointment was filed). In that or...
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DECISION AND ORDER Heard on July 17, 1990 on the Motion of the Rouse Company 1 , (“Rouse”), for an order directing the debtor to perform certain obligations pursuant to 11 U.S.C. § 365(d)(3), to wit: payment of postpetition rent, late charges, attorneys’ fees and costs. The debtor operates a chain of women’s high quality retail clothing stores located throughout the Eastern sta...
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DECISION AWARDING PETITIONING CREDITORS COMPENSATION Are petitioning creditors entitled to have their attorneys’ expenses and fees reimbursed from the estate when the debtor voluntarily files for relief under Chapter 11 of the Bankruptcy Code (the Code) prior to trial on the involuntary petition? Traub, Bonacquist, Yellen & Fox (TBY & F), the law firm representing the petitioning creditor...
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MEMORANDUM This is a proceeding brought by LESLIE BETH BASKIN (“the Trustee”), successor to Defendant JAMES WADE (“Wade”) as Trustee in this voluntary joint Chapter 7 bankruptcy case, against Wade and his counsel, MEEHAN AND MEEHAN (“Mee-han”), to recover damages to the estate allegedly caused by the Defendants’ breaches of their respective duties as trustee and counsel to the trustee. ...
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922 F.2d 536 59 USLW 2462, 24 Collier Bankr.Cas.2d 688,Bankr. L. Rep. P 73,774 In re Gus Kit FRANKLIN, a/k/a Gus Franklin, a/k/a Gus K.Franklin, Gus K. Franklin d/b/a Allied Tree Service, AlliedEnterprises, Inc., Allied Tree and Lawn Service, and SusanKaren Franklin, Debtors.Gus K. FRANKLIN, et al., Appellant,v.COMMONWEALTH FINANCIAL CORPORATION, Appellee. No. 88-6224. United Stat...
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This dispute arose from a transaction in which Alan Saxon, the president of Bullion Reserve of North America (“BRNA”), agreed to contribute $1.5 million to The Commercial Bank of California (“CBC”) in exchange for an ownership interest in CBC. Arnold Kopelson and Michael Miller were members of CBC’s Board of Directors. CBC was desperately in need of capital, and Kopelson approached Saxon f...
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ORDER On July 30, 1990, debtor S. Donald Norton filed a motion seeking the disqualification and recusal of United States Bankruptcy Judge Stacey W. Cotton in this individual Chapter 11 case. In order to avoid any question or appearance of impropriety, Judge Cotton, by Order entered August 8, 1990, requested Chief Bankruptcy Judge A.D. Kahn to reassign the motion for disqualification to an...
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ORDER OVERRULING OBJECTION TO CLAIM OF IRS SUSTAINING IRS’S OBJECTION TO PLAN, AND SETTING DEADLINE FOR AMENDMENT OF PLAN This matter comes before the Court on the Objection to Claim of Internal Revenue Service (“the Objection to Claim”) filed by the Debtors on January 3, 1990, and on the Objection to Confirmation of Debtors’ Plan (“the “Objection to Plan”) filed by the Internal Revenue S...
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Douglas P. Johnson, and David Casani, non-party appellants, appeal the district court’s affirmance of Rule 11 sanctions imposed by the bankruptcy court for filing a meritless motion for rehearing of a previously denied motion for reconsideration. Because we find that the bankruptcy court erred in denying the original motion for reconsideration, we REVERSE the district court’s order affirming the d...
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922 F.2d 696 67 A.F.T.R.2d 91-531, 59 USLW 2466, 91-1USTC P 50,056,24 Collier Bankr.Cas.2d 731, 21 Bankr.Ct.Dec. 427 In re BRICKELL INVESTMENT CORP., Debtor.INTERNAL REVENUE SERVICE, Plaintiff-Appellee,v.BRICKELL INVESTMENT CORP., Defendant-Appellant.In re BRICKELL INVESTMENT CORP., Debtor.INTERNAL REVENUE SERVICE, Plaintiff-Appellee,v.DADE HELICOPTER JET SERVICE, INC. and Tropical Helico...
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MOTION FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE CLAIM MEMORANDUM OF DECISION The foregoing motion was brought regularly before this court by Judith Ann Wilson (“Wilson”), trustee of the Dick Wilson 1988 Trust which is the successor in interest to the Topland Company, Inc. (hereinafter “Topland”), debtor Far West Corporation’s (“Debtor”) landlord. Wilson seeks an order requiring th...
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MEMORANDUM OPINION This matter comes before the Court on the motion for imposition of sanctions under Federal Rule of Bankruptcy Procedure 9011 filed by The CIT Group/Equipment Financing, Inc. (“CIT”), against Sam Alberto (the “Debtor”) and his attorneys Chill, Chill & Radtke, P.C. (“CC & R”), and the motion for an order to show cause filed by the Debtor against CIT and one of its attorne...
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MEMORANDUM, OPINION AND ORDER This matter comes before the court on the cross motions of the trustee, Pamela S. Hollis, and the State Employees’ Retirement System of Illinois (“SERS”) for summary judgment pursuant to Rule 56 of the Fed.R.Civ.P. which is applicable to these proceedings by virtue of Bankruptcy Rule 7056. For reasons explained in the opinion, SERS’s motion for summary judgme...
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*150 MEMORANDUM DECISION Presently pending is the third application for interim allowance of fees and reimbursement of expenses filed by Chapter 11 trustee Richard M. Kipperman (“trustee"). At issue is (1) the propriety and reasonableness of the fees charged by the trustee; and (2) whether the trustee’s requested compensation may be based on disbursements to suppliers made by the trustee duri...
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MEMORANDUM DECISION Presently pending is the application of Christison & Martin (“applicant”) for allowance of fees and reimbursement of costs as counsel for the debtor-in-possession in its Chapter 11 case, and later as counsel for debtor in its Chapter 7 case. At issue is the propriety and reasonableness of attorney’s fees and costs charged by the attorney for the debtor-in-possession. O...
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OPINION The debtor sought to avoid judgment-liens on her residence under 11 U.S.C. § 522(f). The judgment creditor contended that California law did not provide for a homestead exemption because the debtor had contracted for the voluntary sale of her residence and therefore the court should not avoid the liens. We affirm the bankruptcy court’s order avoiding the liens. PACTS The debtor/appe...
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OPINION The State of Oregon, Department of Veterans’ Affairs (“DVA”) appeals a bankruptcy court order reducing its lien on debtor’s property to the value of the property pursuant to 11 U.S.C. § 506. We reverse. FACTS This adversary proceeding was initiated when Chapter 7 debtor, Donald G. Lange, filed a complaint pursuant to 11 U.S.C. § 506(d) to avoid the undersecured portion o...
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923 F.2d 641 59 USLW 2478, 24 Collier Bankr.Cas.2d 813,65 Ed. Law Rep. 319,Bankr. L. Rep. P 73,784 In re CALIFORNIA TRADE TECHNICAL SCHOOLS, INC., dbaCalifornia Trade Technical College, Debtor.Arnold L. KUPETZ, Trustee for California Trade TechnicalSchools, Inc., aka California Trade TechnicalCollege, Plaintiff-Appellee,v.UNITED STATES of America, on Behalf of the UNITED STATESDEPARTMENT ...
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923 F.2d 782 30 Wage & Hour Cas. (BN 209, 59 USLW 2451,118 Lab.Cas. P 35,454, 24 Collier Bankr.Cas.2d 822,21 Bankr.Ct.Dec. 454, Bankr. L. Rep. P 73,781 C. James EDDLEMAN also known as Jim Eddleman; Jane B.Eddleman, d/b/a J & J Cattle Company, Inc. andBlue Fin Transport, Plaintiffs-Appellees,v.UNITED STATES DEPARTMENT OF LABOR, Defendant-Appellant. No. 88-2793. United Sta...
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924 F.2d 36 59 USLW 2478, 24 Collier Bankr.Cas.2d 861,18 Fed.R.Serv.3d 941,21 Bankr.Ct.Dec. 419, Bankr. L. Rep. P 73,802 In re BEN COOPER, INC., Light Manufacturing Co., Inc.,Aimwell Products, Inc., Ben Cooper Sales Corp., Debtors.BEN COOPER, INC., Appellant,v.The INSURANCE COMPANY OF The STATE OF PENNSYLVANIA,Kalvin-Miller International, Inc., and Kerwick &Curran, Inc., Appellees. ...
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922 F.2d 1438 24 Collier Bankr.Cas.2d 864, 18 Fed.R.Serv.3d 712,21 Bankr.Ct.Dec. 340, Bankr. L. Rep. P 73,798 In re GRANTHAM BROTHERS, a partnership, Debtor.VALLEY NATIONAL BANK OF ARIZONA; John R. Anderson, Trustee;Edward Quinif; Robert Riter; HaroldChristopherson, Creditors-Appellees,v.William N. NEEDLER, Attorney at Law, Claimant-Appellant. No. 88-1931. United States Court o...
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Manning J. Post (Post) appeals from a judgment of the district court denying his appeal from a bankruptcy court order. Post had entered into a joint venture agreement with the debtor, Sigel & Co., Ltd. (Sigel). The bankruptcy court held that the joint venture agreement was an executory contract assumable by Sigel, and the district court affirmed. A critical question we must determine is whether...
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OPINION AND ORDER ON OBJECTION TO CONFIRMATION OF CHAPTER 12 PLAN I. PRELIMINARY CONSIDERATIONS AND JURISDICTIONAL STATEMENT This matter is before the Court upon the requested confirmation of a First Amended Plan of Reorganization (the “Amended Plan”) proposed by the debtor under Chapter 12 of the Bankruptcy Code. Bank One of Marion, N.A. (“Bank One”) objected to confirmation. The ma...
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MEMORANDUM OPINION This matter is before the Court upon the motion of a Chapter 7 corporate debtor, *489 F.A. Dellastatious, Inc. (the “Debtor”), seeking an order directing that ail amounts distributed out of its estate to the Internal Revenue Service (the “IRS”) be allocated first to the Debtor’s trust fund tax liability. The issues raised here are (1) whether a Chapter 7 co...
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MEMORANDUM OF OPINION AND ORDER I. This matter is before the Court upon the Trustee’s motion to compromise separate disputed claims against Arby’s, Inc. and Cox Cable, and to abandon a claim against Ponderosa and Prudential Insurance Company. Upon a duly scheduled hearing, the Court has considered the pleadings, arguments of counsel, and the record, generally, to arrive at the follow...
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MEMORANDUM OF DECISION This matter having come before the Court on the debtor’s request for entry of a preliminary injunction against continued litigation of three consolidated civil actions pending in the United States District Court for the District of Arizona, 1 the request having been prosecuted on the basis of the parties’ papers, exhibits, affidavits and declarations, a hearing having b...
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DECISION ON DEBTORS’ MOTION PERTAINING TO SECTION 1110 OF THE BANKRUPTCY CODE THE MOTION Pan Am Corporation et al. (the “Debtors”) have filed a motion seeking a determination as to the reach of section 1110 of the Bankruptcy Code (the “Code”). Specifically, they seek a Court Order: (a) declaring that the Debtors’ non-acquisition sale leaseback transactions (the “Sale-...
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916 F.2d 1444 59 USLW 2342, 24 Collier Bankr.Cas.2d 952,20 Bankr.Ct.Dec. 1868, Bankr. L. Rep. P 73,663 In re CINEMATRONICS, INC., Debtor. (Two Cases)Harold S. TAXEL, Trustee, Plaintiff,v.ELECTRONIC SPORTS RESEARCH, Defendant-third-party-plaintiff/Appellee,v.James PIERCE, Third-party-defendant/Appellant.Harold S. TAXEL, Trustee, Plaintiff-Appellant,v.ELECTRONIC SPORTS RESEARCH, Defendant-...
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Alberto Obed Miera, Jr., appeals from the district court’s 1 order holding that the compensatory and punitive portions of a state court judgment against him for battery were nondischargeable under section 523(a)(6) of the Bankruptcy Code. 2 The bankruptcy court had applied collateral es-toppel to the state court judgment in finding the state judgment against Miera was nond...
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MEMORANDUM OF DECISION This opinion and order addresses a number of issues presently pending. Before discussing them specifically, a brief resume of the case will provide useful context. A. Background. This Chapter 11 case has been pending for over three years. 1 The Debtor, Eastern Maine Electric Cooperative, Inc., (EMEC), is a rural electric cooperative ...
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MEMORANDUM DECISION This matter came on for hearing on Marley Orchards Income Fund I Limited Partnership’s motion for an order granting a preliminary injunction enjoining defendants, Rex M. Walker and Ruth L. Walker, from continuing prosecution of an action pending in Superior Court for Franklin County, Washington against Marley Orchards Corporation and William J. Gammie. Marley Orchards Inco...
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DECISION AND ORDER DENYING TRUSTEE’S OBJECTION TO CLAIMS OF MILLER-VALENTINE GROUP FOR ADMINISTRATIVE CLAIM Dated at Dayton, Ohio this 10th day of October, 1990. This matter is before the court on the trustee’s objection to Miller — Valentine Group's administrative claim of $4,608 (Claim No. 32). This contested matter arises in this bankruptcy case which was referred to this court by...
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Canal Place Limited Partnership, Chapter 11 debtor and appellant herein, appeals the decision of the district court affirming the order of the bankruptcy court lifting the automatic stay afforded by 11 U.S.C. § 362 in order to permit Aetna Insurance Company and Travelers Insurance Company to foreclose on Phase I and Phase II, respectively, of the Canal Place project in New Orleans. In the Findings...
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RULING RE: COMPLAINT TO RECOVER PROPERTY This matter is before the Court on the complaint of plaintiff, debtor, Cedar Rapids Meats, Inc. C.R. Meats seeks to recover property from defendant, the Insurance Commissioner for the state of Iowa, that C.R. Meats claims is part of its bankruptcy estate. C.R. Meats also seeks to reject a contract with the Insurance Commissioner that C.R. Meats cla...
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT These motions are before the court in an adversary proceeding initiated by the debt- or-in-possession. Both parties filed memo-randa in support of their respective positions, and a hearing was held October 4, 1990. The issue before the court is whether a debtor-in-possession can avoid a fede...
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*597 FINDINGS OF FACT AND CONCLUSIONS OF LAW ON OBJECTIONS TO DEBTOR’S CLAIM OF EXEMPTION This case was heard on August 21, 1990, upon objections of the following creditors to debtor’s claim of exemption. 1. Sun Bank/North Florida, National Association 2. The Sherburne Construction Company, Inc. 3. Mayport Riverview Associates 4. D.G. Granger. On the evid...
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MEMORANDUM DECISION PRELIMINARY STATEMENT This matter comes before the court upon the request of the above-captioned Debtor, Oklahoma P.A.C. (“Debtor”) for a determination to what extent counsel for numerous secured creditors must file a verified statement pursuant to Bankruptcy Rule 2019. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334(a) and 157(b)(2...
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MEMORANDUM ORDER GRANTING TRUSTEE’S MOTION FOR RELIEF FROM ORDER PROVIDING ADEQUATE PROTECTION PAYMENTS; GRANTING TRUSTEE’S MOTION TO STAY JUDGMENT; AND DENYING QUAKER STATE’S MOTION FOR STAY RELIEF The Trustee in this case is administering the property of the Debtor, Mid-Atlantic *209 Fuels, Inc. [Mid-Atlantic], subject to various orders and agreements, including a lease/pur...
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MEMORANDUM OPINION In this chapter 7 adversary proceeding, we are faced with an issue, heretofore unresolved in this district, concerning the status of a debt which arose as a result of the owner’s failure to insure her automobile. The case is now before the court on the parties’ cross motions for summary judgment, pursuant to Fed.R.Civ.Pro. 56 and Bankr.R. 7056. For the reasons which fol...
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DECISION Ames Department Stores, Inc. (“Ames”) seeks an order pursuant to Sections 365(b) and (f) of the Bankruptcy Code, 11 U.S.C. § 365(b) and (f) (1986) authorizing a debtor subsidiary, Zayre Illinois (“Zayre”) (collectively, the “Debtors”), to assume a lease of non-residential real property located in Westmont, Illinois (the “Lease”), and assign it to Schottenstein Stores Corporation ...
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I. INTRODUCTION On June 6th, 1990, I conducted a hearing (the “Trustee Hearing”) on the motion of the official committee of unsecured creditors in this Chapter 11 case (the “Committee”) for an order directing the United States Trustee to appoint a trustee to serve as the fiduciary of this bankruptcy estate in place of the then debtor in possession, Carl M. Rheuban (“Debtor”). After co...
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ORDER GRANTING MOTION TO COMPEL DEBTORS TO DELIVER PROPERTY TO THE ESTATE This decision addresses the issue whether income accruing to an individual debtor during the course of a chapter 11 bankruptcy from his operation of a service oriented sole proprietorship is property of the estate. The creditors assert that all income accruing to the debtor post-petition and pre-confirmation is prop...
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MEMORANDUM OPINION The issues addressed by this opinion are twofold. First, should the Debtor-Plaintiff be granted a preliminary injunction which prohibits the Defendant from continuing a pending legal action against the Debtor’s officers and directors? Second, should the Debtor be authorized to reject an alleged executory franchise agreement with the Defendant and, if so, is a covenant n...
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DECISION CONCERNING APPLICATION FOR AUTHORITY TO TERMINATE RETIREE BENEFIT PLANS AND ORDER SETTING HEARING Garfinckels, Inc. (“Garfinckels”), the debtor in this case, has filed an application seeking various relief concerning 11 U.S.C. § 1114. The application will be denied except that the court will appoint a committee of retirees under 11 U.S.C. § 1114(d). The application asserts that 1...
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MEMORANDUM OPINION ON CROSS MOTIONS FOR SUMMARY JUDGMENT THIS MATTER came before the court August 2, 1990 on cross motions for summary judgment. The plaintiff, Diasonics, is an unsecured creditor of Synergetics (“Debtor”). The Debtor filed its Chapter 11 petition for bankruptcy on June 7, 1988. On October 16, 1989, Diasonics filed its complaint in this adversary proceeding seeking to have...
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924 F.2d 955 59 USLW 2543, 24 Collier Bankr.Cas.2d 1147,Bankr. L. Rep. P 73,806 UNSECURED CREDITORS' COMMITTEE; Leon A. Uziel, Creditors-Appellants,v.PUGET SOUND PLYWOOD, INC., fdba Soundbilt Plywood Sales, Debtor,andPuget Sound Plywood, Inc., Debtor-Appellee. No. 90-35296. United States Court of Appeals,Ninth Circuit. Submitted November 8, 1990.*Decided Jan. 31, 1991. ...
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MEMORANDUM OF DECISION This matter came before the Court on Debtor’s Motion to Reduce Claim and to Lower Payments, which sought to disallow the claim of Creditor Leader Federal Savings and Loan Association because of a discharge of the obligation in a previous Chapter 7 case. Debtor contended that the January 23, 1990 discharge relieved the Debtor of personal liability on debt secured by a mo...
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*273 MEMORANDUM OPINION AND ORDER ON THE UNITED STATES TRUSTEE’S MOTION TO INTERVENE AS A PARTY DEFENDANT/COUNTER-CLAIMANT This Court had previously set October 30, 1990, as a deadline for the United States Trustee and the Unsecured Creditors’ Committee to file motions to intervene in this consolidated adversary proceeding. On October 24, the United States Trustee moved to interv...
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Linda Gale Motley appeals an order of the district court holding that assessments imposed by the Commissioner of the Virginia Department of Motor Vehicles (“the Department”) are excise taxes for purposes of 11 U.S.C.A. § 507(a)(7)(E) (West Supp. 1990) and, therefore, are not debts dis-chargeable in bankruptcy pursuant to 11 U.S.C.A. § 523(a)(1)(A) (West Supp.1990). We affirm in part and reverse...
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Hugh and Gloria Edwards filed a reorganization plan under chapter twelve, 11 U.S.C. § 1221 (1989). The State Bank of Towner objected to the property valuation claiming it was too low and that the Edwards were ineligible under chapter twelve. The parties settled, agreeing that (1) the property should be valued at $93,101.00, (2) the bank would drop its objections, (3) Hugh Edwards’s mother, Louise ...
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*711 MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS The primary issue before the Court in this Motion to Dismiss filed by the defendant is whether the Complaint to Revoke Discharge was filed timely. The Complaint is filed under 11 U.S.C. § 727(d) 1 which permits revocation of a previously granted discharge, but only if— (1) such discharge was obtained through the fraud of the debtor, a...
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AMENDED MEMORANDUM OPINION REGARDING REJECTION OF NONRESIDENTIAL REAL PROPERTY LEASE AND MOTION FOR STAY PENDING APPEAL This proceeding arises in a case referred to this court by the Standing Order of Reference entered in this district on July 24, 1984 and is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (M). Accordingly, the court is authorized to enter fina...
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Appellant law firm Estes & Hoyt appeals the bankruptcy court’s ruling, affirmed by *322 the Bankruptcy Appellate Panel of the Ninth Circuit, that it is not entitled to certain attorney’s fees it charged pursuant to its role as counsel for the trustee of a Chapter 7 debtor’s estate. Appellee Kathryn Crake, fifty percent general partner in the debtor, objects to these fees, as does a...
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922 F.2d 742 59 USLW 2484, 24 Collier Bankr.Cas.2d 1216,21 Bankr.Ct.Dec. 432, Bankr. L. Rep. P 73,807 In re Susan HAGEN, a/k/a S.D. Hagen, a/k/a Susan DianneHagen, Debtor.Charles W. GRANT, Trustee, Plaintiff-Appellee,v.Mark Jay KAUFMAN, P.A., Defendant-Appellant. No. 90-3239. United States Court of Appeals,Eleventh Circuit. Jan. 29, 1991. Lisa C. Cohen, Law Office o...
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MEMORANDUM DECISION: On May 18, 1989 the debtor, A & H, Inc. (“A & H”), filed its bankruptcy petition. On May 31, 1989 Ryder Truck Rental, Inc. (“Ryder”), filed a general unsecured proof of claim in the amount of $14,511,000.00 based upon a November 10, 1988 state court judgment stemming from an accident involving a truck leased from Ryder by the debtor. In that case, Ryder counterclaimed...
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OPINION ON DEBTORS’ PETITION TO ALLOW PAYMENT OF INSURANCE PROCEEDS This matter is before the Court on the petition of the Debtors to assume a purported executory contract for the sale of a mobile home and to use a portion of certain insurance proceeds to complete the contract. The two legal issues to be decided are whether the Court has jurisdiction to act on the Debtors’ petition pending an a...
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926 F.2d 191 59 USLW 2530, 24 Collier Bankr.Cas.2d 1236,21 Bankr.Ct.Dec. 661, Bankr. L. Rep. P 73,824 Thomas M. GERMAIN, Trustee for the Estate of O'Sullivan'sFuel Oil Co., Inc., Plaintiff-Respondent,v.The CONNECTICUT NATIONAL BANK, Defendant-Petitioner. Docket No. 90-8054. United States Court of Appeals,Second Circuit. Submitted July 17, 1990.Decided Feb. 15, 1991. ...
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MEMORANDUM OF DECISION ON INTERIM APPLICATION OF COUNSEL FOR THE PROJECT NO. 6 PARTICIPANTS COMMITTEE FOR COMPENSATION AND REIMBURSEMENT OF EXPENSES AND APPLICATION FOR ALLOWANCE OF COMPENSATION FOR SERVICES AND REIMBURSEMENT OF EXPENSES OF ELECTRIC UTILITY CONSULTANT This matter is before the court on the Interim Application of Counsel for the Project No. 6 Participants’ Committee for Co...
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AMENDED MEMORANDUM ' OF OPINION The matter before the Court is upon the Complaint of the plaintiff, Herbert Spilka, for a determination that his claim against the debtors is nondisehargeable under 11 U.S.C. § 523(a)(3). Trial in the matter was held on November 16, 1989 and the decision taken under submission. The following shall constitute Findings of Fact and Conclusions of Law pursuant ...
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ORDER THIS MATTER came before the Court on October 23, 1990 for trial on the Plaintiffs Complaint against the Defendants (Debtors) objecting to discharge pursuant to 11 U.S.C. § 727(a)(2)(A), § 727(a)(4)(A), and § 727(a)(3). Following the presentation of evidence by both parties, the Court found in favor of the Debtors on the Plaintiffs claims under § 727(a)(3) and § 727(a)(4)(A). The Cou...
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ADJUDICATION A. FINDINGS OF FACT 1. The Debtor, DARILING COBB (“the Debtor”), filed the instant underlying Chapter 13 bankruptcy ease on October 18,1989. 2. Although the Debtor filed a matrix with the court at the time that she filed her petition, she made no further filings of any papers, including her Chapter 13 Statement and Plan, through May 4, 1990. At that time EDWARD SPAR...
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OPINION Before us in the three above-named related cases is a motion of SECURITY PACIFIC NATIONAL BANK (“SPNB”), easily the Debtor’s largest secured creditor and also allegedly an unsecured creditor, requesting this court to direct the United States Trustee (“UST”) to appoint a new and separate Creditors’ Committee in the case of ORFA CORPORATION OF AMERICA (DEL.) (“ORFADEL”), in addition to th...
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OPINION The Debtors, Harold E. Rubin (“Rubin”) and Marvin J. Nadler (“Nadler”), seek to exclude from their bankruptcy estates their benefits under the pension plan of Halmar Distributors, Inc. (“Halmar”). Alternatively, if the benefits are included in the estates in the first instance, the Debtors contend that they are entirely exempt as “reasonably necessary ... for support” within the m...
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MEMORANDUM DECISION ACTION Chapter 12 Trustee/Movant Rick A. Yar-nall (“Trustee”) filed a Bankr.R. 2004 (“2004”) examination motion to depose Debtors/Respondents Anthony Lee and Sharlene Marie Gross (“Debtors” or “Grosses”) on grounds the Trustee believes Debtors, post-confirmation, transferred real estate they failed to list on their schedules. Debtors resist any discovery attempt, arguing t...
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MEMORANDUM OPINION The debtor has voluntarily moved to dismiss this Chapter 11 case following termination of the automatic stay in favor of the secured creditor, Henderson Home Savings and Loan Association (“Henderson Home”). The concurrent pendency of a Chapter 7 case on the debtor’s behalf gives rise to the issue, heretofore unresolved in this district, of whether a debtor should be permitted...
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ORDER This matter is before the Court pursuant to the Motion for Summary Judgment brought by La Salle Street Fund, Inc. of Delaware (hereinafter La Salle or landlord) (Doc.1981); La Salle’s Brief in Support *517 (Doc.1982); La Salle’s Supplemental Brief in Support of Motion for Summary Judgment (Doc.2026); Montgomery Ward, Inc.’s Memorandum in Opposition to La Salle’s Motion (Doc.2050); and D...
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DECISION ON ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 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 concerning the administration of the estate, and (O) — other proceedings affecting ...
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ORDER RE: MOTION OF U.S. TRUSTEE TO DISMISS OR CONVERT This Chapter 11 case came on before the Court on November 20, 1990, for hearing on the motion of the U.S. Trustee for conversion or dismissal. The U.S. Trustee appeared by his attorney, Michael R. Fadlo-vich. Charles E. Spring appeared on behalf of Debtor. 1 Upon the moving and responsive documents, arguments of counsel, an...
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MEMORANDUM DECISION AND ORDER Thomas and Peggy Whitelock (White-locks), the debtors in this chapter 13 case, sought confirmation of a plan providing full payment plus interest of a specially classified cosigned unsecured claim. Non-cosigned unsecured claimants were to receive a thirty percent dividend on their claims. Barbara W. Richman (Richman), the Standing Chapter 13 Trustee, objected...
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OPINION A. INTRODUCTION The instant matter, retained in this court upon remand from a state court because of its status as a core proceeding in this reopened case converted from Chapter 11 to Chapter 7, presents an alleged creditor’s claim against a Trustee and his predecessor’s bonding company for failure to pay his claim in the distribution of the estate’s assets. In reviewing the ...
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MEMORANDUM This Memorandum addresses a Motion by the three above-named Debtors, proponents of a joint Plan of Reorganization, who sought to have us temporarily disallow seven of eight proofs of claims filed in these various cases by Frederick Blum-berg, Esquire (“Blumberg”). Because Blumberg chose to present virtually no evidence to support his claims against the Debtors’ short but straig...
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ORDER GRANTING MOTION TO DISMISS COMPLAINT THIS MATTER came for trial before the Court on November 14,1990, upon the complaint of Pembroke Development Corporation (the “debtor”) against Carteret Savings Bank, F.A. (the “creditor”) for Injunc-tive and Declaratory Relief, and the creditor having raised an ore tenus Motion To Dismiss Complaint, and the parties having submitted mem...
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MEMORANDUM DECISION AND ORDER PRELIMINARY STATEMENT This matter comes before the Court upon the Motion filed on December 19, 1989 by the Canadian Imperial Bank of Commerce (“Bank”) that the automatic stay imposed pursuant to Section 362(a) of the Bankrupt *395 cy Code be annulled. 1 The above-captioned Debtor, Oklahoma P.A.C. (“Debtor”) filed its Objection to this Motion on January 17, 19...
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MEMORANDUM OPINION ON DEFENDANTS’ MOTIONS TO DISMISS Defendants Kathryn Kelly (“Kelly”), JGC Trust # 2 (“JGC Trust”) and Thomas J. Connelly (“Connelly”) (collectively, the “Defendants”) have moved to dismiss the adversary complaints brought against them by plaintiff Winston & Strawn (“W & S”) (the “Adversary Complaints”) (the “Motions”). The Adversary Complaints seek to avoid certain tran...
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MEMORANDUM ORDER AUTHORIZING EMPLOYMENT OF PROFESSIONAL PERSONS The above-entitled matter came on for hearing before the undersigned on the 13th day of November, 1990 on applications of the debtor in possession (the “Debtor”) un *840 der 11 U.S.C. § 327(a) for orders authorizing it to employ Michael LeBaron and Lar-kin, Hoffman, Daly & Lindgren, Ltd. as its attorneys and Buan...
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MEMORANDUM OPINION The matter before the Court in this Chapter 7 proceeding is Debtors’ (hereinafter, Cheripkas if jointly, Ronald or Michele if individually) Motion for Enforcement of Discharge and to Determine Dis-chargeability of Debt. Defendant, Republic Insurance Company (hereinafter, Republic), relies upon an Order of Court in Civil Action No. 85-0486, issued April 2, 1986 by the Un...
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MEMORANDUM DECISION This matter concerns a motion for change of venue made by the New Jersey Department of Environmental Protection (“NJDEP”) pursuant to 28 U.S.C. 1408, 1412 and Bankruptcy Rule 1014(a). The *175United States Trustee for the Eastern District of New York joins NJDEP in requesting a change of venue. After a hearing held on December 11, 1990 and for the reasons stated below, this mot...
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The present appeal implicates important issues of bankruptcy law in a complex factual setting involving a moribund funeral home whose inevitable financial demise was lucratively delayed for years by insiders who financed its life support system at the expense of unsuspecting debenture holders who were left holding the bag when the plug was pulled by the onset of these involuntary bankruptcy pro...
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924 F.2d 74 59 USLW 2574, 24 Collier Bankr.Cas.2d 1431,21 Bankr.Ct.Dec. 581, Bankr. L. Rep. P 73,831 In the Matter of DELTA TOWERS, LTD., d/b/a Ramada HotelOrleans, La., a Limited Partnership, Debtor.NEW ORLEANS PUBLIC SERVICE, INC., Appellee, Cross-Appellant,v.FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF WARNER ROBINS,GEORGIA, Appellant, Cross-Appellee. No. 90-3341. United State...
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OPINION ISSUE The common issue in the above cases is whether they should remain in Chapter 11 or be converted to Chapter 7 where in David Weiss there was never any hope, plan, nor intent other than to liquidate the debtor’s assets, and in Lyons the business had been shut down with no real hope of revival. DAVID WEISS Petitioning Creditors filed an involuntary petition for r...
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OPINION The Debtor is moving to reopen this closed Chapter 7 proceeding in order to reduce and avoid, pursuant to 11 U.S.C. § 522(f), two judgment liens of The Bank of Smithtown (“Smithtown”) on his residence. 11 U.S.C. § 522(f) authorizes a debtor to avoid judicial liens that impair the debtor’s exemption. The debtor claims that Smithtown’s liens impair his homestead exemption. Smithtown...
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MEMORANDUM OF DECISION ON U.S. TRUSTEE’S OBJECTION TO CHAPTER 7 TRUSTEE’S APPLICATION FOR REIMBURSEMENT OF EXPENSES This matter comes before the Court on the Chapter 7 Trustee’s application for re *635 imbursement of expenses (Final Account) and the U.S. Trustee’s objections thereto. The Chapter 7 Trustee seeks reimbursement of expenses in the amount of $432.00. The spec...
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Robert P. and Wesley Ann Jordan appeal from a district court order affirming a bankruptcy court’s determination that their debt to the Southeast National Bank is nondischargeable' under 11 U.S.C. § 523(a)(2)(B). In concluding that the Jor-dans’ debt to Southeast is nondischargeable, the bankruptcy court found that the Jordans had intentionally submitted materially false financial statements to ...
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The government asks us to determine that the bankruptcy and district courts erred in disallowing a proof of claim filed by the Internal Revenue Service (IRS). Those courts held that where a self-employed individual is required to make estimated tax payments periodically throughout the tax year, the IRS’s claims “become payable” not at the time the individual is required to file his tax return, ...
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Technical Fabricators, Inc. (“TFI”) appeals a decision of the district court affirming the ruling of the bankruptcy court to equitably subordinate TFI’s secured and administrative claims and to transfer TFI’s liens to the estate of Fabricators, Inc. (“Fabricators”) pursuant to 11 U.S.C. § 510(c). In a cross appeal, Fabricators, through its bankruptcy trustee, alleges error in the subordination ...
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928 F.2d 565 67 A.F.T.R.2d 91-972, 59 USLW 2590, 92-2USTC P 50,491,24 Collier Bankr.Cas.2d 1503, 21 Bankr.Ct.Dec. 838,Bankr. L. Rep. P 73,863 In re PRUDENTIAL LINES INC., Debtor.The OFFICIAL COMMITTEE OF UNSECURED CREDITORS and ColdSpring Shipping, L.P., Appellees/Cross-Appellants,v.PSS STEAMSHIP COMPANY, INC., Appellant/Cross-Appellee. Nos. 1023, 1131, Dockets 90-5063, 90-5073. ...
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Defendants-appellants Robert Wilde, Monty Higley and Jonnie Higley seek to *1140 establish the Higleys’ right to recover from Utah’s Real Estate Recovery Fund for a discharged claim against debtor-appellee Ralph L. Walker. As part of this effort, defendants filed motions with the bankruptcy court for relief from the Bankruptcy Code’s injunction against continuing or commencing acti...
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In this tax refund action, William Russell Gibson, the bankruptcy trustee,1 appeals from the district court’s order affirming the bankruptcy court’s granting of summary judgment for the Internal Revenue Service. Gibson argues on appeal that a bankruptcy trustee has the power, under 11 U.S.C. §§ 548, 549 (1988), to avoid a debt- or’s pre- and postpetition irrevocable elections to carry forward net ...
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The question that we must address is whether our recent decision in Germain v. Connecticut Nat’l Bank, 926 F.2d 191 (2d Cir.1991), requires dismissal of this interlocutory appeal for lack of appellate jurisdiction. We conclude that it does. On January 22, 1986, Beverly Ann Burton lies and eight other named plaintiffs (the “Claimants”), on behalf of themselves and a defined but unnamed class of pas...
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United States Trustee John Waites appeals the district court’s affirmance of a bankruptcy court decision to award compensation to the attorney for the Chapter 7 trustee. The bankruptcy court awarded compensation to J. Ralston Werum, of the law firm Porter, Wright, Morris & Arthur, for computing distribution, reviewing checks, preparing checks and reviewing and organizing returned checks. O...
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DECISION AND ORDER Heard on August 22, 23, October 22, and November 27, 1990, on the complaint of Lillian Weeden, to have a debt of the debtors/defendants, Richard and Corinne Mona-han, declared nondischargeable pursuant to 11 U.S.C.A. § 523(a)(2)(A). FACTS This dispute arises out of a contract, dated July 8, 1988, for the purchase and erection of a modular home for the plaintif...
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LIVELY, Senior Circuit Judge. The appeal and cross-appeal in this bankruptcy case involve a Chapter 7 trustee’s right to recover allegedly preferential and unauthorized payments made by the debtor in possession under Chapter 11 prior to conversion of the case to a Chapter 7 proceeding. *460Chattanooga Wholesale Antiques, Inc. (the debtor) filed bankruptcy under Chapter 11. Within ninety days prior...
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OPINION OF THE COURT I. Introduction The sole issue in this case is whether a bankruptcy court’s orders that approve a trustee’s employment of expert witnesses are tantamount to appointment by the court of those witnesses for purposes of 28 U.S.C. § 1920(6) (1988), which permits taxation as costs against the losing party of fees for “court appointed experts.” Surprisingly, t...
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MEMORANDUM OPINION There are two principle issues to be decided. 1. Whether or not Oklahoma Plaza Investors, Ltd. (“OPI” or the “Debtor”) has rejected its unexpired lease (“Lease”) with Wal-Mart Stores, Inc. (“Wal-Mart”) pursuant to Section 365 of the Bankruptcy Code or the provisions of the Debtor’s confirmed plan. 2. Whether or not under the uncontested facts, Wal-Mart has breached the Le...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Consolidated Rail' Corporation (“Conrail”) for damages against Galla-tin County State Bank (the “Bank”) for willful violation of the automatic stay pursuant to 11 U.S.C. § 362(h), and on the motion of the Bank for summary judgment on Conrad’s motion pursuant to Federal Rule of Civil Procedure 56, incorporated by refere...
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OPINION A. INTRODUCTION The issue presented by this proceeding is the disposition of an escrow deposit made by a Debtor-buyer of real estate under an agreement of sale and an escrow agreement allowing delivery of the fund only upon agreement by the parties or court authorization in light of (1) the Debtor’s pre-petition default of the agreement; and (2) his post-petition consent to the release of...
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MEMORANDUM OF DECISION This case came before the Court on the Alabama Surface Mining Commission’s motion for payment of civil environmental penalties as 11 U.S.C. § 503(b)(1)(A) actual, necessary costs and expenses of preserving the estate. The Commission is the enforcer for state reclamation law for surface mines. The context of this decision is a Motion for Summary Judgment on the issue...
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OPINION The Windolph Trust (Windolph) filed an application for payment of administration expense requesting that the court enter an order compelling Douglas Leitch (Leitch), the trustee of the Chapter 7 estates of Kent Holland Die Casting & Plating, Inc. (Kent) and Holland Die Casting & Plating Inc. (Holland), to pay as administration expenses the following claims of Windolph: 1. Ren...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR DECLARATORY JUDGMENT This adversary proceeding for declaratory relief came on before the Court on January 10, 1990, for oral argument upon stipulated facts. Plaintiff appeared by its attorney, Gary W. Koch. Defendant Mark C. Halverson (“the Trustee”) appeared for the bankruptcy estate. Defendants Roger C. Solberg and Catherine E. Solberg...
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MEMORANDUM OPINION AND ORDER The debtor Construction Management Services, Inc. (CMS) has filed an action to recover over $700,000 from Manufacturers Hanover Trust Company, (MHT) alleging interest payment preferences under § 547(b), insider preferences under § 547(b), and improper setoff under § 553 of the Code. MHT moves to dismiss the action, claiming that the applicable statute of limitations...
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*474 MEMORANDUM OPINION Performance Communications, Inc. (“plaintiff”) has brought this adversary action pursuant to 11 U.S.C. §§ 547(b) and 550(a)(1). Plaintiff seeks to avoid a preference and to recover from defendant First National Bank (“Bank”) the sum of $127,-160.46, which plaintiff paid to Bank in satisfaction of a debt guaranteed by principals of debtor. Bank has fil...
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ORDER FOR JUDGMENT, ON REMAND This adversary proceeding is before the Court on remand, on order of the District Court (Rosenbaum, J.) pursuant to the mandate of the United States Court of Appeals for the Eighth Circuit. See In re Johnson, 880 F.2d 78 (8th Cir.1989). 1 *292 The issue remanded is limited, both factually and legally: Did Debtor act with an “i...
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MEMORANDUM OF DECISION This matter came before the Court on the Debtors’ February 8, 1990 motion to restrain Creditor B.F. Goodrich Employees Federal Credit Union from closing accounts held by Debtors with the financial institution and to award Debtors costs incurred from the Credit Union’s actions. Debtors contended that: I. Creditor’s action was a violation of the automatic stay pr...
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ORDER ON DEBTOR’S MOTION TO VACATE This matter came on for hearing January 3, 1991 on Debtor’s motion to vacate the order, entered on November 5, 1990, extending by 70 days the time for the trustee to object to the debtor’s claim of exemptions. Having considered the arguments of counsel, and for the reasons set forth below, debtor’s motion is denied. The debtors filed their petition for prote...
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DECISION ON DEFENDANT’S MOTION FOR DISMISSAL AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT FACTS On December 7, 1987 (the “Filing Date”), Brooks and several of its affiliates (collectively, “Brooks” or “Debtor”) filed voluntary petitions under chapter 11 of the Bankruptcy Code (the “Code”). The Debtors included Alberts, Inc., which owned stores doing business in Michigan. 1 ...
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931 F.2d 889 Greenv.Ferrell NO. 90-1457 United States Court of Appeals,Fifth Circuit. APR 08, 1991 1 Appeal From: S.D.Miss. 2 AFFIRMED. ...
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932 F.2d 1020 33 ERC 1035, 59 USLW 2757, 24 CollierBankr.Cas.2d 1737,21 Bankr.Ct.Dec. 1073, Bankr. L. Rep. P 73,931,21 Envtl. L. Rep. 21,051 The CITY OF NEW YORK, Plaintiff-Appellee,v.EXXON CORPORATION, Exxon Research and Engineering Company,Inc., Ingersoll-Rand Company, Alcan Aluminum Corporation,Ford Motor Company, Koppers Company, Inc., BASF WyandotteCorporation, Borg-Warner Corporatio...
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*274OPINION OF THE COURT This dispute in bankruptcy concerns whether one or both parties is entitled to proceeds from an Attorney Trust Account. Debtor Harvey Goldberg was a New Jersey attorney who misappropriated money entrusted to him by his clients. The New Jersey Lawyers’ Fund for Client Protection 1 and Chicago Title Insurance Company each claimed all or part of the remaining balance in Gold...
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930 F.2d 648 24 Collier Bankr.Cas.2d 1757, 21 Bankr.Ct.Dec. 982,Bankr. L. Rep. P 73,937, 16 UCC Rep.Serv.2d 408 In the Matter of KROH BROTHERS DEVELOPMENT COMPANY; KrohBrothers Equity Company; Kroh Brothers Realty Company;Kroh Investments I, Inc.; Kroh Telecommunities, Inc.; WardParkway Corp., a Missouri Corporation, Debtors.KROH BROTHERS DEVELOPMENT COMPANY; Kroh Brothers EquityComp...
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This appeal from the district court’s af-firmance of the bankruptcy court’s order requires us to interpret Utah Code Ann. § 70A-9-107(b), which provides that: [a] security interest is a purchase money security interest to the extent that it is ... taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral ...
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931 F.2d 689 59 USLW 2697, 24 Collier Bankr.Cas.2d 1772,21 Bankr.Ct.Dec. 1069, Bankr. L. Rep. P 73,928,16 UCC Rep.Serv.2d 400 In re Alan J. and Mary Frances ANTWEIL, husband and wife;Hobbs Pipe & Supply, a general partnership; andMorris R. Antweil, Debtors.Elliott JOHNSON, Trustee, Plaintiff-Appellant,v.William BARNHILL; Bravo Energy; and Estate of Murray Cash,Defendants-Appellees....
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MEMORANDUM DECISION AND ORDER CAME ON for hearing the motion of Debtor for Sanctions against the United States, Internal Revenue Service (“IRS/Service”) for Violation of the Automatic and Co-Debtor Stays. Upon consideration thereof, the court now enters this memorandum decision and order thereon. JURISDICTION This matter is before the court on a motion brought under Sections 362...
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OPINION This is an adversary proceeding seeking recovery of alleged preferential transfers and the matters under consideration are joint motions for summary judgment. *998 The relevant facts, as stipulated are as follows. The Debtor, Helen Gallagher Enterprises, Inc., sold gift items at retail and maintained retail outlets nationwide. Francis E. Giamette and Dolores A. Giame...
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MEMORANDUM OPINION Debtor filed a Chapter 7 petition for relief on July 26, 1990 and in this adversary proceeding sought to have his student loans discharged on the grounds that they became due more than five years before the date of the filing of the petition. The earliest date of repayment on any of the notes is February 1, 1983, so that facially debtor’s assertions seem valid. However,...
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MEMORANDUM OPINION This matter came before the Court for final hearing on Mariner Hotel Corporation’s first amended motion for relief for custodian and other entities with respect to turnover. ABQ Bank and the debtor objected to the motion. At the commencement of the hearing, counsel informed the Court that a stipulation had been reached in regard to some of the matters in the motion, but...
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126 B.R. 584 (1991) In re John McGregor FULKROD, Debtor. John McGregor FULKROD, Appellant, v. Edmund R. BARMETTLER, Trustee, Appellee. BAP No. NV-89-1919-ORMe, Bankruptcy No. 88-0707. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted January 24, 1991. Decided April 29, 1991. *585 Daniel S. Corder, Reno, Nev., for appellant. John White, Jr., Reno, Nev., for appell...
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MEMORANDUM OPINION This case presents questions of feasibility of a plan of reorganization, and “cramdown” treatment of a secured creditor’s claim under the plan. The present dispute is the latest chapter in a pitched battle between the debtor in possession and the secured creditor, Shawmut Bank, N.A., from the time of the chapter 11 filing on May 11, 1990 through the plan confirmation he...
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MEMORANDUM OPINION The matter before the Court is the Motion of the Debtor-in-Possession (“DIP”) for an order releasing an administrative hold or in the alternative to use cash collateral and this Court’s November 5, 1990 Order granting a replacement lien subject to further consideration. For the reasons stated below, the Motion will be taken as a motion to use cash collateral, and it is ...
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OPINION RE JURISDICTION ISSUE Once again, this court must visit the greyness of the statutory framework of *968bankruptcy jurisdiction. The issue before the court is whether this adversary proceeding is a core proceeding, a noncore related proceeding, or a noncore, nonrelat-ed proceeding with respect to the causes of action stated in the complaint.1 PROCEDURAL BACKGROUND Pal Nissan, Inc., the Debt...
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933 F.2d 215 60 USLW 2014, 24 Collier Bankr.Cas.2d 1853,21 Bankr.Ct.Dec. 1149, Bankr. L. Rep. P 73,970 John G. WELLMAN, Sr., as Debtor-in-possession, Plaintiff-Appellant,v.Arthur O. WELLMAN, Jr.; Edward R. Sacks; and Wellman,Incorporated, Successor to Sacks TextileAssociates, Incorporated, Defendants-Appellees. No. 90-1403. United States Court of Appeals,Fourth Circuit. Argu...
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MEMORANDUM OF DECISION The Debtor, Lion Country Safari, Inc., a third-party defendant and cross-claimant in this adversary proceeding, moved for a trial by jury following removal of this proceeding from state court. I will deny that motion for the reasons stated below. FACTUAL SUMMARY The Splash, a subtenant of the Debtor, sued The Irvine Company (TIC) [the Debt- or’s lessor], a...
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MEMORANDUM OF DECISION This matter came before the court for hearing on February 13, 1991, on debtors’ motion for turnover of exempt property. The following facts are undisputed. BACKGROUND On June 30,1989, the debtors, Bruce and Kimberly Kingsbury, filed a joint Chapter 7 petition in bankruptcy. As required by Bankruptcy Rule 4003(a) 1 and 11 U.S.C. § 522(Z), 2...
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MEMORANDUM OPINION Debtors filed under Chapter 11 on February 16, 1990. Their disclosure statement was approved December 11, 1990. In the proposed plan of reorganization (the “Plan”), debtor enjoins the potential class of nondischargeable claims from executing on judgments until a default occurs, plus three months to cure. Jokay Company (“Jokay”), the holder of a potential nondis-chargeab...
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MEMORANDUM OPINION AND ORDER ON CITICORP’S MOTIONS FOR SEPARATE TRIAL AND TO STRIKE TRUSTEE’S JURY DEMAND AND ON UNSECURED CREDITORS’ COMMITTEE’S MOTION TO VALUE SECURED CLAIM ASSERTED BY CITICORP AND ON STAY OF PROCEEDINGS On September 5, 1990, this Court issued a memorandum opinion and order in the above numbered adversary proceedings, to which opinion reference is made for background i...
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Walter Green’s petition for bankruptcy relief was denied on the ground that the petition constituted “substantial abuse” of Chapter 7. Green appeals the Bankruptcy Court’s interpretation of 11 U.S.C. § 707(b), claiming that the fact that he was found to have income in excess of his necessary expenses is not, by itself, sufficient to support a finding of substantial abuse. We agree, and therefor...
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931 F.2d 1505 59 USLW 2746, 24 Collier Bankr.Cas.2d 1919,21 Bankr.Ct.Dec. 1210, Bankr. L. Rep. P 74,022 TRANSOUTH FINANCIAL CORPORATION OF FLORIDA, Plaintiff-Appellant,v.Ralph Jennings JOHNSON, Vera Johnson, Defendants-Appellees. No. 89-4036. United States Court of Appeals, Eleventh Circuit.May 29, 1991. Catherine Peek McEwen, Tampa, Fla., for plaintiff-appellant. ...
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The single issue before this court is whether a state is immune from suit for money damages, pursuant to 11 U.S.C. § 362(h), for violating the Automatic Stay Provision of the Bankruptcy Code, 11 U.S.C. § 362(a). 1 The issue is one of first impression in this circuit. We have jurisdiction to hear this case under 28 U.S.C. § 158(d). We find the state was immune from suit for money damages under t...
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MEMORANDUM OPINION Rooster, Inc. (“Rooster”), the debtor, brought this adversary proceeding against the defendant, Raphael Roy, S.R.L. (“Raphael Roy”) to recover two payments made by Rooster to Raphael Roy shortly before Rooster filed a voluntary petition in bank *563 ruptcy. Rooster is a Pennsylvania corporation formerly in the business of manufacturing men’s neckties. It fi...
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AMENDED DECISION ON APPLICATIONS FOR COMPENSATION FOR MICHAEL, BEST & FRIEDRICH BASICS This Decision pertains to all fee applications of Michael, Best & Friedrich (“MB & F”). Since this case was commenced on December 5, 1988, MB & F has represented the debtor, Hutter Construction Co., Inc. (“HCCI”). It also represented two other related Chapter 11 debtors, THCC Corp. (“THCC”) and Acq...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on the 15th day of March, 1991 on the United States Trustee’s motion to convert or to dismiss this Chapter 11 case for failure to answer questions at the meeting of creditors held pursuant to 11 U.S.C. § 341. The appearances were as follows: Andrew Schmid for the United States Trustee; Roylene Cham-peaux for t...
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OPINION H. Keith Howard, the former president and chief executive officer of Uly-Pak, Inc., seeks payment of his claim for sever-anee pay as an administrative expense entitled to priority. The trustee in Uly-Pak’s bankruptcy case objects to Howard’s claim. On February 24, 1989, Uly-Pak filed a Chapter 11 bankruptcy petition. In November 1989, after it became apparent that reorganizat...
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MEMORANDUM AND DECISION This matter is before the Court on the Motion of Gary Craft requesting relief from the automatic stay to pursue a State Court action for specific performance of an option to purchase real property. In 1984, George Maier, the Debtor, leased his 95 acre farm to Gary Craft for a one year term with annual options to renew. The renewal options could be exercised a ...
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MEMORANDUM OF OPINION The Debtors filed the petition commencing this chapter 13 case on February 11, 1991. The petition did not include their chapter 13 statement and schedules or their reorganization plan. On February 28, 1991 the Court entered an order on the Debtors to appear on March 12, 1991 to show cause why their case should not be dismissed because of their failure to file their p...
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Bobby Noah Graven and Bobby F. Graven, personal representative for the estate of Millie Ann Graven, Bobby Noah’s deceased wife, appeal from the district court’s1 affirmance of a bankruptcy court order granting the trustee’s motion under *38011 U.S.C. § 1208(d) (1988) to convert the Gravens’ Chapter 12 proceeding to Chapter 7, based on a finding of fraud, despite the Gravens’ motion to dismiss the ...
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935 F.2d 918 60 USLW 2036, 24 Collier Bankr.Cas.2d 2017,21 Bankr.Ct.Dec. 1385, Bankr. L. Rep. P 74,071 In the Matter of Delbert L. SADLER and Patsy A. Sadler, Debtors.Appeal of FIRST NATIONAL BANK OF PERRY COUNTY, INDIANA. No. 91-1021. United States Court of Appeals,Seventh Circuit. Argued June 3, 1991.Decided July 1, 1991. James G. Tyler, Tell City, Ind., for appel...
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Maurice L. Bercier, M.D., appeals from a federal district court ruling that $50,000 of his debt to Bank of Louisiana is nondis-chargeable. The district court reversed the bankruptcy court’s prior ruling that the debt was, in fact, dischargeable. For the reasons set forth below, we reverse the ruling of the district court. I. Background Maurice L. Bercier, M.D. (Bercier) owned a fifty percent inter...
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This bankruptcy appeal raises a surprisingly fundamental, and difficult, question (assuming we can get over a jurisdictional hurdle), on which we are unable to find any authority. The question is whether if a debtor continues to occupy his home after declaring bankruptcy, the trustee can *899 charge rent to him, notwithstanding the homestead exemption. The debtors in this case — a married coupl...
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MEMORANDUM OPINION Debtor filed a petition for relief under Chapter 7. The only debt listed in debtor’s schedules was an unsecured obligation for $12,527.55 listed as owing to the State of Missouri, Division of Child Support Enforcement, and Mary Ann Oligschlaeger. Thereafter debtor filed an adversary action to have said debt determined to be dis-chargeable. Mary Ann Oligschlaeger filed an answ...
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DECISION AND ORDER ON MOTION TO DISMISS OR TRANSFER FOR IMPROPER VENUE CAME ON for hearing the Motion of the United States of America (Internal Revenue Service) to Dismiss, or Alternatively, Motion to Transfer Case and the Response thereto of the Debtors. Upon consideration of the evidence and the arguments of the parties, the court enters this its decision and order thereon. This bankruptcy ...
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OPINION RE MOTION TO VACATE JUDGMENT I. INTRODUCTION A. Summary of the Instant Dispute. An attorney has asked me to vacate an order requiring him to disgorge compensation he received from a debtor prior to the commencement of the debtor’s bankruptcy case. The attorney asserts that my order is void because it was based on conclusions of law that were later rejected o...
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ORDER ALLOWING DAMAGES FOR WILLFUL VIOLATION OF THE AUTOMATIC STAY The matter before the court is the debtors’ request for damages pursuant to 11 U.S.C. § 362(h) arising from a willful violation of the § 362(a) automatic stay by the U.S. Postal Service. 1 A hearing was held in Raleigh, North Carolina, on May 2, 1991. The facts are quite simple. Robert J. Everett and Amy V. Everett filed a j...
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The Chapter 7 Trustee, seeks the authority to sell the estate’s right, title and interest in the Debtor’s marital residence which he owns as a tenant by the entirety with his wife for the sum of $8,000.00 to Debt- or’s spouse. The only creditor of this Debtor’s Estate, who has a judgment of over $500,000.00, has objected to the proposed sale of the estate’s property based on the fact that a compl...
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MEMORANDUM OF DECISION RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I. On September 14, 1989, this court confirmed a chapter 11 liquidating plan of the debtor, Century Brass Products, Inc. (Century), under which Jerome E. Caplan became plan administrator. The plan administrator’s functions are the “prosecution of claims by the Estate, objections to claims and the administration and di...
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REASONS FOR DECISION This matter was before the Court on the debtors’ Objection to Trustee’s Proposed Disbursements and Motion to Permit Filing of Proof of Claim (the debtors’ motion), whereby the debtors requested: (1) denial of the trustee’s proposed final account; (2) authority to file proofs of claim for income tax due on behalf of the United States (Internal Revenue Service) and the ...
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Home & City Savings Bank (the “Bank”) appeals from an order of the United States District Court for the Northern District of New York (Hon. Con G. Cholakis, Judge) affirming an order of the United States Bankruptcy Court for the Northern Dis *746 trict of New York (Hon. Justin J. Mahoney, Bankruptcy Judge) which denied a motion by the trustee in bankruptcy of ...
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