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All Reporters → collier-bankr-cas-2d → Volume 32

Opinions in collier-bankr-cas-2d Volume 32

MEMORANDUM OPINION Debtor filed his petition for relief under Chapter 7 and received an otherwise uneventful discharge. An adversary action was filed by debtor’s former spouse and her dissolution attorney seeking determination of the dischargeability vel non of awards to both in the state court action. In that action debtor’s former spouse Lillian Marie Garcia, was the petitioner and David ...
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RULING ON OBJECTION TO EXEMPTION I. ISSUE The debtor, Cynthia Morzella, filed her Chapter 7 petition on December 10, 1993, listing as an unencumbered asset valued at $55,000 a one-half interest in her residence located at 57 Pine Ridge Drive, Harwinton, Connecticut. The debtor, electing in her bankruptcy petition the Connecticut state law exemptions, claimed the residenc...
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171 B.R. 525 (1994) In re The APPLIANCE STORE, INC., and Northeast Consumer Technology Stores, Inc., Debtors. Joseph P. NIGRO, Trustee, Plaintiff, v. PITTSBURGH POST-GAZETTE, Defendant. Joseph P. NIGRO, Trustee, Plaintiff, v. MONTEREY COUNTY HERALD COMPANY, Defendant. Bankruptcy Nos. 92-21573-BM, 92-21574-BM. Adv. Nos. 94-2137-BM, 94-2213-BM. United States Bankruptcy Court, W.D. Pennsylvania. Aug...
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MEMORANDUM OPINION Several matters are before the court at this time. Debtor MetCo Mining And Minerals, Inc. (hereinafter “debtor”) has brought a complaint against PBS Coals, Inc. (hereinafter “PBS”) at Adversary No. 93-2356-BM in which it seeks to recover the sum of $81,-942.03 for coal sold to PBS for which PBS has not paid. PBS has responded with a counterclaim against de...
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ORDER THIS CAUSE is before the Court upon the Motion to Reopen Case, filed on August 24, 1994, by creditors James K. and Marianne Bailey. Although the nature of the relief sought is unclear from the motion, the creditors apparently seek to reopen the case in order to modify the discharge injunction under section 524 of the Bankruptcy Code. Specifically, the creditors seek to pursue a ...
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DECISION AND ORDER The Chapter 13 Debtors seek to treat the second mortgage held by Beneficial Mortgage Company of Rhode Island as wholly unsecured, and to remove said mortgage from their principal residence. In its objection, Beneficial argues that Nobelman v. American Sav. Bank, — U.S. —, 113 S.Ct. 2106,124 L.Ed.2d 228 (1993), precludes any modification of its lien on the Debtors’ home....
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OPINION OVERVIEW Debtors appeal a default judgment denying their discharge pursuant to § 727(a). 1 We VACATE the judgment. STATEMENT OF FACTS On April 5, 1993, appellee Federal Deposit Insurance Corporation (FDIC) filed a complaint objecting to the debtors’ discharge pursuant to § 727. The complaint alleged jurisdiction and then restated, without any addition...
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MEMORANDUM This matter comes before the Court on the Motion of the Defendant, Credit Bureau Systems, Inc. for summary judgment and on the corresponding Motion of Plaintiff, Russ Wil-key, Trustee, for summary judgment. The precise issue in this case centers around an interpretation of 11 U.S.C. § 547(c)(7). The facts of this case are quite simple. The Trustee has sued the Defendan...
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OPINION This ease raises three questions: Is it a violation of the automatic stay for a credit union to “freeze” a debtor’s deposit account for the purpose of preserving the credit union’s claimed right of setoff against the debt- or’s loan indebtedness? May the account now be set off against the entire debt balance *966 even though at the filing the debtor was current on...
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AMENDED ORDER GRANTING MOTION TO REMAND AND DENYING MOTION TO TRANSFER 1 On June 8, 1994, twelve cases concerning polybutylene plumbing systems were removed from state court to the District Court for the Southern District of California by defendant Hoechst Celanese Corporation *687 (“Celanese”). Two days later, on June 10, Plaintiffs Robert L. and Nancy K. Williams (“...
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ORDER DISMISSING APPEAL The matter before the Court is appellant’s appeal of United States Bankruptcy Judge Donald E. Cordova’s Final Order entered on October 8, 1993. Appellant filed a principal brief and the appellee filed a Statement In Response To Brief Of Appellant. The Court determines that oral argument would not be of material benefit in reaching a decision. See Bankr.R. 8012. Debto...
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MEMORANDUM OPINION This proceeding is before this court on Appellant’s, Internal Revenue Service (“IRS”), appeal of the bankruptcy court’s Order confirming the Debtor’s, Danny Stewart (“Stewart”), Chapter 13 plan. Jurisdiction in this court is pursuant to 28 U.S.C. § 158(a). FACTS The Debtor filed a petition in bankruptcy on November 8, 1993 according to Chapter 13 of the bankruptcy code. 1...
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OPINION AND ORDER DENYING MOTION TO AVOID LIEN This matter is before the Court upon Michael and Kelly Krueger’s (“Debtors”) motion to avoid a lien held by City Loan Financial Services (“CLFS”) in certain furniture (the “Furniture”) acquired with the proceeds of a loan obtained from CLFS. The Court finds that the Debtors’ motion is not well taken and should be denied. FACTS T...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the Motion to Abstain filed by Peoples State Bank and Trust Co. (“Bank”). A hearing was held on May 16, 1994, at which time the Court took the matter under advisement. The Bank appeared by and through its attorney, Robert Nugent. Harry D. Krug (“debt- or”) appeared by and through his attorney, Tim Girard. The trustee, Er...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on the 2nd day of June, 1994, on a motion by Christine Friauf (“Debtor”) to confirm modification of her chapter 13 plan, and on an objection to the motion by the Internal Revenue Service (“IRS”). Appearances were as follows: Michael Urbanos for the IRS; Ian T. Ball for the Debtor; and Stephen Creasey for the ch...
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MEMORANDUM OPINION This adversary proceeding is related to the consolidated bankruptcy cases of three business entities, each filing under Chapter 7 of the Bankruptcy Code: Gerardo Leasing, Inc. (“Gerardo Leasing”), Gerardo & Sons Motor Service, Inc. (“Gerardo & Sons”), and Getco, Inc. (“Getco”). Plaintiff William A. Brandt, Jr., Trustee for each of the three debtors, filed this five-...
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MEMORANDUM OPINION I. INTRODUCTION The Debtors, Aargus Polybag Co., Inc., Imperial Bag Co., Inc., and Sac Pak, (herein referred to as the “Debtors”) were manufacturers of polyurethane goods. The plaintiff in this adversary proceeding is one of the Debtors, Aargus Polybag Co., Inc., (“Aar-gus”). Commonwealth Edison Co., Inc., (“Commonwealth Edison”) supplied electricity to Aargus ...
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MEMORANDUM OPINION A hearing was held September 30,1994 on the debtor’s objection to claims filed by the Washington State Employment Security Department (“ESD”), the Department of Labor and Industries (“L & I”), and the Department of Revenue (“DOR”),1 referred to collectively herein as the “State.” The debtor objects not to the amount of the claims but to the priority of the penalty portions of t...
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MEMORANDUM OPINION AND ORDER On March 7, 1994, a hearing was held on Timothy Seyferth’s Amended Second Motion for Contempt, the final motion in a series of contempt pleadings. The bankruptcy trustee supported Mr. Seyferth’s current motion and previous motions for contempt, and by order entered January 31, 1994, was permitted to intervene in the contempt proceedings which are the subje...
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RULING ON MOTION FOR PAYMENT OF ADMINISTRATIVE CLAIM I. ISSUE Seaboard Security Company (Seaboard) filed a motion on May 2, 1994 for payment to it of an administrative claim in the amount of $8,416.30, a sum allegedly due Thomas M. Germain (Germain), the original trustee appointed in the Chapter 7 case of Charter Oak Security Agency, Inc. (the debtor). Seaboard’s asserted entitlement to such p...
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ORDER This matter comes before the Court on the request for confirmation of the Chapter 11 plan of reorganization by Atlanta Southern Business Park, Ltd. (hereinafter “Debtor”). The Debtor seeks the confirmation of its plan over the objections of NationsBank of Georgia, N.A. (hereinafter “NationsBank”), a secured creditor. The matters involved herein constitute a core proceeding over ...
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DECISION ON MOTIONS REGARDING THE PROCEEDS FROM THE SALE OF THE DEBTOR’S MEDICAL PRACTICE INTRODUCTION Armando J. Solis, M.D. (“Solis” or the “Debtor”) moves, pursuant to 11 U.S.C. § 105(a), essentially, for a judgment declaring that the proceeds of the sale of his medical practice are not property of the estate. Jeffrey Sapir, the chapter 13 trustee (“Trustee”) objects and moves to modif...
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DECISION ON MOTIONS TO DISMISS AND FOR SUBSTANTIVE CONSOLIDATION OF THE BANKRUPTCY CASES I. INTRODUCTION Before me are three motions. 1 Because they are interrelated, I will decide them together. First are motions 2 filed by Status Eyes Ltd. (“Status Eyes”) and Traekwise Sales Corporation (“Traekwise”) to dismiss the Chapter 11 cases 3 of Paolo Gu...
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*53 MEMORANDUM AND ORDER ON MOTION TO MODIFY PLAN AFTER CONFIRMATION The movant, Keycorp Mortgage Inc., seeks to modify the debtors’ confirmed chapter 13 plan so that its claim will be treated as fully secured, rather than secured in part and unsecured in part. 1 For the reasons that follow, I conclude that Keycorp’s motion must be denied. BACKGROUND The debt...
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ORDER This matter comes before the Court on the issues raised by the Trustee’s Objection to Debtor’s Claim of Homestead Exemption, filed by Theo D. Mann (hereinafter “Trustee”). A hearing on the Trustee’s Motion was held on August 26,1994, during which time a dispute arose as to whether or not a particular item of property belonged to the Chapter 7 bankruptcy estate of Curtis Wilhem M...
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MEMORANDUM OPINION Douglas Ray Schroeder and Ann Denice Schroeder (hereinafter “Debtors”), filed a petition under Chapter 7 of the United States Bankruptcy Code on September 9, 1991. The Debtors hsted as an asset, real property known as 596 Counsel Oaks Drive, Waldorf, Maryland (“Property”), and valued the Property at $112,000.00 in Schedule A. The Debtors hsted two consensual credito...
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MEMORANDUM OPINION In this matter, Pacific Northwest Group A (“PNGA”) seeks allowance and payment of an administrative claim under 11 U.S.C. § 365(d)(3) 1 . The claim arises out of the debtor’s rejection of a Lease Agreement, dated February 1, 1993 (the “Lease”), between the debtor as lessee and PNGA as lessor. PNGA claims that under Section 365(d)(3) it is entitled to payment ...
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ORDER Heard on January 27, 1994, on the Creditor Committee’s Petition for Instructions regarding the disposition of $31,855.52 held in escrow with the Chairman of the Committee. The background and travel are as follows: More than five years ago, on June 19, 1989, the funds in question were delivered to Stephen Barrett, as Chairman of the Creditors’ Committee, for distribution to Class Four un...
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ORDER This matter is before the Court on the “First Amended Complaint for Turnover, Accounting and Payment of Money Owed”, filed on behalf of Charles W. Riske (“Trustee”), and the Trustee’s “Motion for Summary Judgment”. The Trustee has requested that Luther Oliver (“Debtor”) be ordered to turn over to the Trustee the sum of $94,768.53 in tax refunds received by Debtor after the commencement ...
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ORDER DENYING MOTION TO AVOID LIEN THIS CAUSE is before the Court upon the debtor’s Motion to Avoid Lien, filed on July 7, 1994. The debtor seeks to avoid federal tax liens assertedly because they impair an exemption in their homestead property. The parties have stipulated to the facts and submitted briefs in support of their respective positions. The Court has jurisdiction over this matter p...
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OPINION Is there any bite in the Bankruptcy Code’s toothless tiger, 11 U.S.C. § 521(2)? Consumer debtors who are not in default on secured consumer debts sometimes flout the mandate in section 521(2) that they state (and perform) an intention to reaffirm the *684 debt, surrender the collateral, or redeem the collateral by paying its value. Instead, debtors who are not otherwi...
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ORDER DENYING DEBTOR’S MOTION TO QUASH NOTICE OF RENEWED § Ski MEETING, AND REQUEST FOR EXPEDITED HEARING Before the Court is the Debtor’s Motion to Quash Notice of Renewed § 341 Meeting and Request for an Expedited Hearing by Teleconference on the Motion. It is the Debtor’s position that the Trustee’s Notice of Renewed § 341 Meeting should be quashed, on the ground that the Trustee i...
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OPINION OVERVIEW The Appellant Karen Raiman, a Chapter 7 Debtor, filed a motion to enforce discharge in the bankruptcy court relating to certain tax claims asserted against her by the California State Board of Equalization. In addition, Debtor requested compensatory sanctions be imposed against the creditor. The bankruptcy court found that the tax claims were not dischargeable and en...
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The Plaintiff, who is the Debtor’s former wife, requests a determination that certain obligations of the Debtor imposed under the terms of a Decision and Order of the Washington County Family Court, are nondis-ehargeable under 11 U.S.C. § 523(a)(5), on the ground that said obligations are in the nature of alimony or support. The matter was taken under advisement on the written submissions of the ...
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OPINION The debtor in possession failed to make postpetition contributions to its employees’ health plans and pension funds in breach of its obligation under collective bargaining agreements (CBAs) with its unions. It sought and was granted an interim order pursuant to 11 U.S.C. § 1113(e) providing prospective downscaling of benefits in four CBAs and sanctioning, nunc pro tunc, ...
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MEMORANDUM OPINION At Orlando, in said District on the 22nd day of June, 1994, before Arthur B. Brisk-man, Bankruptcy Judge. Andrew Baron appeared for the Debtor. John Meininger appeared for the Trustee. The Trustee objected to the Debtor’s claim of exemption pursuant to Title 11 U.S.C. § 522 and Fla.Stat.Ann. §§ 222.29-.30. *674 FINDINGS OF FACT ...
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ORDER DENYING PARTIAL SUMMARY JUDGMENT, AND MEMORANDUM OF DECISION In this Adversary Proceeding two Chapter 7 Debtors, who had operated a business as partners, seek a determination of federal tax liability under 11 U.S.C. § 505, and additionally seek a determination that the Internal Revenue Service has violated the automatic stay provision, 11 U.S.C. § 362(a), by filing certain federal tax l...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on September 12, 1994, on the Trustee’s Objection to the Debtor’s Claims of Exemptions. The facts are not in dispute. Debtors claim an exemption under C.R.S. § 13-54-102(1)© for thé cash surrender value for two life insurance policies. The total cash surrender value for both policies is less than $5,000.00. The statute involved pr...
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MEMORANDUM OPINION I. INTRODUCTION The Debtor, Michael R. Sparks, has been a broker, developer, and operator of real estate in the Chicago area since 1961. He has specialized in owning and operating apartment buildings with a focus on so-called “corporate suite” furnished apartments. Faced with various financial difficulties, Mr. Sparks filed a voluntary chapter 11 petition on Se...
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SUPPLEMENTAL MEMORANDUM OPINION Before the Court is a motion for turnover of funds filed by Jonathan E. Kroner (“Kroner” or “Plan Trustee”), the successor administrator and trustee of the College Bound, Inc. 401(k) Retirement Plan and Trust (“the 401(k) Plan” or “Plan”). The Plan Trustee seeks turnover from the Chapter 11 Trustee of monies including both withheld employee contribution...
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MEMORANDUM This is a battle between the debtor, a garnishing creditor and the Chapter 7 trustee over unpaid alimony owed to the debtor. Because garnishment of unpaid alimony is not prohibited by Tennessee law and because a Tennessee debtor’s exemption in unpaid alimony is effective only with respect to alimony that becomes due more than 30 days after assertion of the exemption, the garnishing cre...
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MEMORANDUM DECISION REGARDING OBJECTION TO DEBTOR’S EXEMPTIONS The Trustee and Olympic Towers Condominium object to the Debtor’s exemption claims — other than the exemption for domestic animals and food — either because the exemptions are not permitted by law, or should not be permitted unless the Debtor provides more specific information from which the parties can determine if the claime...
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MEMORANDUM OPINION AND ORDER The matter before the court is the motion to dismiss filed by the defendant, Texas Department of Transportation (“DOT”). DOT alleges various reasons why this court does not have jurisdiction over this adversary proceeding, but the main issue is whether, under 11 U.S.C. § 106(a), DOT has waived its sovereign immunity by its conduct. The court concludes that DOT, by m...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon objections by debtor and Enstar to claims 7 and 28 filed by the United States of America Internal Revenue Service (“IRS”). The Court held a hearing on May 19, 1994, and upon the evidence presented enters these findings of fact and conclusions of law: Findings of Fact From 1969 through October, 199...
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ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT THIS CAUSE is before the Court upon the Defendants’ Motion for Partial Summary Judgment, filed on September 2, 1994. The trustee and the intervenor filed responses to the motion and the defendants filed a reply on October 5, 1994. Between 1979 and 1981, the debtor, as an employee of Shoney’s, Inc. became a joint venturer with oth...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon an Application for Fees and Expenses filed by the law firm of Lowndes, Drosdick, Doster, Kantor & Reed who represented creditor California Federal in this bankruptcy. California Federal also filed Claim Number 18 seeking attorney’s fees and costs for bankruptcy in the amount of $8,316.89 for services rendered b...
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MEMORANDUM OPINION ON THE ALLOWANCE OF ADMINISTRATIVE EXPENSES THIS CAME on for hearing on the motion of the Chapter 7 trustee, Mark Freund to determine the allowance of administrative expenses in the Chapter 11 case which preceded the conversion of this case to Chapter 7. David Fleming, Esq., attorney for the debt- or-in-possession during the administration of the Chapter 11 has obje...
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DECISION ON MOTION TO EXPUNGE OR REDUCE NEW YORK STATE REAL PROPERTY GAINS TAX AS NOT ENTITLED TO PRIORITY STATUS PURSUANT TO 11 U.S.C. SECTION 507(a)(7) This matter is before the Court pursuant to a motion by E. Thomas Williams, Jr. (the “Debtor”) to expunge and/or reduce the claim of the New York State Department of Taxation and Finance (the “Department of *460Taxation”) for, inter alia, amoun...
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Roger Huckfeldt appeals the district court1 judgment affirming the bankruptcy court’s2 dismissal of his petition to liquidate under Chapter 7 of the Bankruptcy Code. The bankruptcy court dismissed the petition on the ground that it was filed in bad faith to Rústrate a divorce decree, and the district court affirmed. Concluding that dismissal was warranted under 11 U.S.C. § 707(a), we affirm. I. Du...
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37 F.3d 1021 63 USLW 2307, 26 Bankr.Ct.Dec. 228, Bankr.L. Rep. P 76,148 In re Lillie M. JOHNS.Lillie M. JOHNSv.ROUSSEAU MORTGAGE CORPORATION; Commonwealth EasternMortgage Corporation; Commonwealth Mortgage Corporation ofAmerica; Delaware County Regional Water Control; DelawareCounty Regional Water Control Authority; Pennsylvania HomeRemodeling Company; Redevelopment Authority of Che...
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ORDER DETERMINING GARNISHEES’ OBLIGATIONS UNDER GARNISHMENTS SERVED OUTSIDE THE DISTRICT OF KANSAS These proceedings are before the Court on the garnishees’ answers to. garnishment orders and the motion of garnishee Firstar Bank Madison (Firstar) for a determination of its obligations. Firstar appears by counsel Lynn M. Stathas and Cindy Dillard. Garnishee Wachovia Bank of Atlanta (Wa-cho...
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MEMORANDUM OF DECISION ON OBJECTION OF UNITED STATES TRUSTEE TO APPLICATION FOR APPROVAL OF EMPLOYMENT OF ATTORNEY FOR OFFICIAL COMMITTEE OF UNSECURED CREDI TORS 1 I. On August 5, 1994, the Official Committee of Unsecured Creditors (the Committee) in the Chapter 11 case of Joseph A. Calabrese (the debtor), filed an application to approve the employment of Pepe & Hazard...
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ORDER SUSTAINING OBJECTION TO ORDER DIRECTING THE CORRECTION OF DEFECTIVE PLEADING I. In this case, 1 the Internal Revenue Service filed a “Request for Payment of Internal *539 Revenue Taxes,” (currently Form 6338 A(C) (Rev. 6-88)). This form asserts “Administrative Claims” for taxes due from the debtor, and requests payment. A copy was apparently served on the debtor. Because this “Req...
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SUPPLEMENTAL OPINION REGARDING TRUSTEE’S OBJECTION TO THE IRS CLAIM This matter was brought before the Court upon the trustee’s objection to a late claim *473 filed by the Internal Revenue Service (“IRS”). Following oral argument, this matter was taken under advisement. The Court sustains the trustee’s objection and disallows the late filed claim of the IRS in its entiret...
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DECISION ON TRUSTEE’S COMPLAINTS TO SET ASIDE FRAUDULENT TRANSFERS Before the Court for adjudication, after trials, are two separate adversary proceedings instituted by the chapter 7 trustee of two related companies to set aside as fraudulent, the transfer of certain monies to Defendants by the Debtors. Because the facts and applicable law are so similar, these two adversary proceedin...
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OPINION A Chapter 7 1 debtor had his discharge revoked based on fraud and concealment of insurance proceeds. The debtor appeals. We REVERSE. I. FACTS The debtor/appellant, Ron Dean Bowman (“Bowman”) received his Chapter 7 discharge on October 1,1992. On October 19,1992, the appellee, Belt Valley Bank (“Belt Valley”) filed a complaint to revoke Bowman’s dis ...
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OPINION Before the court is the chapter 7 Trustee’s motion for authority to sell real estate free and clear of ah hens, and an objection thereto filed by the Revenue Commissioner of Mobile County, Alabama. For reasons explained below, the County’s objection is overruled and, accordingly, the motion is granted. The Trustee proposes to sell 15,300 square feet of land zoned for hght...
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MEMORANDUM OF DECISION Before the Court for decision are two motions, namely “Debtors’ Motion to Confirm Modified Plan, or in the Alternative, to Convert Case to a Proceeding under Chapter 11” (“Motion to Confirm Modified Plan”) and “Objection By G.L.B. Corp. to Debtors’ Modified Plan of Adjustment” (“Objection to Debtors’ Modified Plan”). A. Factual Background On April ...
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Ted’s Plumbing, Inc., a minuscule plumbing concern, owed $29,000 to the plumbers’ union pension fund for contributions that ERISA required Ted’s to make to the fund for one of the two or three plumbers that Ted’s employed. The fund obtained a judgment against Ted’s for treble this amount plus attorney’s fees; the total judgment was $111,000. Ted’s declared bankruptcy. The trustee brought an adv...
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Randolph F. Jones, president of debtor Courtesy Inns, Ltd., Inc. (Courtesy), appeals an award made against him personally for $6,953 attorney’s fees for bad faith filing of a bankruptcy petition. Jones argues that the bankruptcy court was without jurisdiction to award sanctions under 28 U.S.C. § 1927 and that the filing was not in bad faith. 1 I Courtesy was indebted to the Ba...
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This bankruptcy case presents both a procedural and a substantive question: first, whether objections to a debtor’s claimed exemptions were timely under Bankruptcy Rule 4003(b); and second, whether a fully matured annuity policy is exempt under California law. *1030I On October 7, 1991, Alan and Linda Bernard filed for relief under Chapter 7 of the Bankruptcy Code. Among the assets they claimed as...
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We affirm a bankruptcy court disgorgement order directed to an attorney. I. FACTS On April 25,1991, John and William Decker retained The Law Offices of Ivan Halperin to represent themselves and several firms they controlled. The purpose of Halperin’s representation of the Deckers, as stated.in their retainer agreement, was: To review and analyze the financial and legal affairs of the Clients, to r...
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42 F.3d 986 63 USLW 2388, 32 Collier Bankr.Cas.2d 520,Bankr. L. Rep. P 76,222 In re James David HARDENBERG, Debtor.James David HARDENBERG, Plaintiff-Appellee,v.COMMONWEALTH OF VIRGINIA, DEPARTMENT OF MOTOR VEHICLES;Commonwealth of Virginia, 19th Judicial District,Fairfax County General District Court,Defendants-Appellants. No. 93-4183. United States Court of Appeals,Sixth Circuit....
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When the Singsons filed for Chapter 7 bankruptcy, Chief Judge Clevert appointed Douglas F. Mann as trustee, with power to act as his own attorney. Mann later asked the judge to approve the engagement of Ludwig & Shlimovitz, s.c. (L & S) as special counsel for the purpose of opposing the Sing-sons’ attempt to exclude pension assets from the estate. The bankruptcy judge approved this application, wh...
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OPINION The debtors, David and Shirley Ham, seek to dismiss a complaint filed by the plaintiffs, Emery Toth, Andrea Williams, and Donald Rhule, to determine the dischargeability of certain debts. The debtors assert that the plaintiffs’ complaint was not filed within the limitation period prescribed by Bankruptcy Rule 4007(c) and is, therefore, time-barred. The debtors filed their Chapter 7 ...
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39 F.3d 898 32 Collier Bankr.Cas.2d 542, 26 Bankr.Ct.Dec. 310,Bankr. L. Rep. P 76,185 Keith T. HARSTAD, doing business as Harstad Companies;Diane N. Harstad, doing business as HarstadCompanies, Appellants,v.FIRST AMERICAN BANK, formerly known as Drovers FirstAmerican Bank of South St. Paul, Appellee. No. 94-1389. United States Court of Appeals,Eighth Circuit. Submitted Oct. 10...
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OPINION I The Debtors in these two appeals filed Chapter 13 plans which separately classified nondischargeable student loans. In both cases, the plans provided for 100% payment on the student loans, with much smaller percentages on the remaining unsecured claims. The trustee objected to both plans on the ground that the classification, and different treatment, constituted unfair disc...
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Creditor William J. Wade appeals the district court’s decision affirming the bankruptcy court’s confirmation of a reorganization plan proposed by debtors Nathan and Beverly Bradford. Because a chapter 11 debtor may bifurcate an undersecured creditor’s claim and strip the creditor’s hen down to the value of the collateral, and because the debtors’ plan met the Code’s “cram down” requirements, we...
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Appellant Perkins Coie (“Perkins”), a law firm headquartered in California, appeals from the district court’s affirmance of the bankruptcy court’s order that allowed Gordon F. Sadkin’s claimed exemption of his wrongful garnishment cause of action and denied all relief requested by Perkins. We affirm the judgment of the district court. I. BACKGROUND Prior to events giving rise to this ...
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The principal question presented in this case is whether the district court correctly held the avoiding of a judicial hen under 11 ■ U.S.C. § 522(f) is limited to the value of the debtor’s homestead exemption in the property under hen. The district court further held, because hens cannot attach to the Utah homestead, apphcation of § 522(f) is superfluous in this ease. We agree with the district...
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ORDER DENYING DEBTOR/DEFENDANTS MOTION TO DISMISS This matter is before the Court on the motion filed by debtor/defendant Ali R. Ham-rah to dismiss Mary J. Smith’s amended complaint objecting to discharge. Hamrah bases his motion on the failure of Smith’s counsel to serve the summons and complaint within ten days of issuance of the summons as required by Fed.R.Bankr.P. 7004(f). *110 FACT...
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OPINION The question presented by this case is whether an installment contract for the sale of a business to the debtors is an executory contract assumed by the debtors under § 365 or whether it constitutes a financing device granting the seller a secured claim that may be modified in the debtors’ Chapter 12 plan. Approximately a year prior to bankruptcy, debtors Larry and Linda ...
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AMENDED MEMORANDUM DECISION This matter is before the court on the motion of the United States Trustee to surcharge the chapter 7 trustee the sum of $3i,456.03. 1 Statement of Facts On July 10, 1992, Michelle Evon Rollins filed a voluntary chapter 7 petition. Her schedules, particularly Schedule B, indicated that she was entitled to receive, prior to the commencement of ...
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ORDER DETERMINING SECURED CLAIM OF STATE FARM LIFE INSURANCE COMPANY This matter came before this Court upon the motion of State Farm Life Insurance *201 Company (“State Farm”) to determine its secured claim in the above referenced case. This opinion holds that State Farm’s secured claim is equal to the amount of indebtedness owed under the Deed of Trust Note and its modifications, other co...
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MEMORANDUM & ORDER The Chapter 7 Trustee, Phillip D. Armstrong (Trustee), commenced the above-entitled action by Complaint filed on February 17, 1994, seeking to avoid the security interests given by the debtors to Dakota Western Bank of Bowman (Bank) in specified CRP payments and oil royalty payments. 1 The Trustee essentially asserts that the Bank’s security interests in the ...
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MEMORANDUM DECISION This matter comes before the court on defendant’s motion to dismiss the above-referenced adversary proceedings. The motion was heard on July 7, 1994. Facts On April 1,1992, the debtor, Catwil Corporation (“Catwil”), filed its voluntary Chapter 11 petition. About two years later, on March 7, 1994, this Court authorized the Official Committee of Unsecured C...
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MEMORANDUM of DECISION Before the court is the appeal of Federal Home Loan Mortgage Corporation (“Freddie Mae”) from the June 15, 1994 order of the United States Bankruptcy Court for the Eastern District of Pennsylvania confirming the, Debtors, Chapter 11 plan of reorganization. Freddie Mae contends: (1) the plan incorrectly classified Freddie Mae’s claim under 11 U.S.C. § 1122; (2) the plan ...
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Before the Court is defendant, Oil Transport Company, Inc.’s Motion for Dismissal Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The defendant’s motion is based upon its belief that 11 U.S.C. § 362(a)(1), which grants an automatic stay against the commencement or continuation of judicial actions against debtors involved in bankruptcy proceedings, controls here. Plaintiff, th...
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MEMORANDUM OPINION AND ORDER This is an appeal of an Order of Bankruptcy Judge Francis G. Conrad 1 dated October 19, 1993, reducing, allowing and classifying Nostas Associates’ (“Nostas”) proofs of claim alleging unpaid rent and related expenses under an unexpired lease assumed and later rejected by the debtor Klein Sleep Products, Inc. (“Klein Sleep”). Having considered No...
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MEMORANDUM, OPINION AND ORDER This matter is before the Court on a Motion for Reconsideration brought by Ziebell Water Service Products, Inc. 1 In this motion, Ziebell requests the Court to reconsider its order denying Ziebell’s motion for Leave to File Proof of Claim Instanter filed several weeks after the date set by the Court by which claims had to be filed. See ...
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514 U.S. 300 (1995) CELOTEX CORP. v. EDWARDS et ux. No. 93-1504. United States Supreme Court. Argued December 6, 1994. Decided April 19, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT *302 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which...
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MEMORANDUM OF DECISION This Chapter 7 case is before the court on the trustee’s motion for a turnover of proper *966 ty from one of the debtors. The property in question is corporate stock. It was awarded to the debtor under an employer’s incentive plan before the filing of this bankruptcy case, but the debtor was entitled to unrestricted ownership of the stock only because h...
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OPINION James Kaczmarczik filed an adversary proceeding against Jerry and Geraldine Van Meter, the debtors. Kaczmarczik mailed the complaint and summons to the Van Meters, and concurrently filed the same. As a result, • the Van Meters received an unfiled complaint and an unissued summons. The Van Meters were never served with a filed complaint or an issued summons. Recognizing that th...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came before the Court on the Debtor’s Objection to Secured Claim(s) and Petition Other Relief (sic) and Volkawagen Credit, Inc. ’s Response to Debtor’s Objection to Secured Claim(s) and Other Relief. After considering the pleadings, the stipulation and the briefs filed by each party, the Court finds that the Deb...
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OPINION The debtor attempted to modify a confirmed Chapter 11 1 plan. The bankruptcy court ruled that the confirmed plan was “substantially consummated”, thereby statutorily barring modification. The debtor appeals. We AFFIRM. I. FACTS The debtor/appellant, Antiquities of Nevada, Inc., aka Antiquities International (“Antiquities”), is a retailer in the Forum Shopping Center at Caesar’s ...
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Deborah Cox appeals from the district court’s decision affirming the bankruptcy court’s finding that she was not entitled to a discharge under 11 U.S.C. § 727(a)(3) because she was not justified in failing to maintain books and records of her financial circumstances. We have jurisdiction under 28 U.S.C. § 158(d). We reverse. I. BACKGROUND This is the second time this case has ...
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ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT This adversary proceeding came on for hearing on September 1,1993, on the parties’ cross-motions for summary judgment. Clinton E. Cutler appeared for the plaintiff. Randall L. Seaver appeared for the defendant. I granted the defendant summary judgment on December 29, 1993. Dairy Fresh Foods, Inc. v. Ramette (In re Country Club Market, Inc.) 162 B.R. 226 ...
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39 F.3d 556 63 USLW 2399, 32 Collier Bankr.Cas.2d 761,26 Bankr.Ct.Dec. 360,Bankr. L. Rep. P 76,208 In the Matter of UNITED STATES ABATEMENT CORPORATION, a/k/aU.S.A. Corp., Debtor.UNITED STATES ABATEMENT CORP., a/k/a U.S.A. Corp., Appellant,v.MOBIL EXPLORATION & PRODUCING U.S., INC., as agent for MobilOil Exploration & Producing Southeast, Inc. andMobil Exploration and Producing No...
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39 F.3d 563 32 Collier Bankr.Cas.2d 769, 26 Bankr.Ct.Dec. 364,Bankr. L. Rep. P 76,209 In the Matter of UNITED STATES ABATEMENT CORPORATION, a/k/aU.S.A. Corp., Debtor.UNITED STATES ABATEMENT CORP., a/k/a U.S.A. Corp., Appellant,v.MOBIL EXPLORATION & PRODUCING U.S., INC., agent Mobil OilExploration & Producing Southeast, Inc., and MobilExploration & Producing North America,Inc.,...
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MEMORANDUM OPINION DEFENDANTS’ MOTION TO DISMISS The matter before the court is the Motion of Connecticut Mutual Life Insurance Company, The Cooper Companies, Inc., Presidential Life Insurance Company (“Presidential”), M D Sass RE/Enterprise Partners L.P., and Grass Partners (“Grass”) (these parties shall be collectively referred to as “Defendants”) to Dismiss the complaint o...
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MEMORANDUM ORDER This case arises from an appeal from a bankruptcy court order of confirmation of the debtor’s Chapter 13 plan of February 5, 1992. The Appellant, the Estate of Mary Pasteur (“Estate”) objected to the bankruptcy court’s confirmation of the plan at a confirmation hearing on December 3, 1991, claiming that the plan modified the rights of the secured creditor regarding a debt secured ...
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AMENDED MEMORANDUM DECISION ON WESTERN FARM CREDIT BANK’S MOTION TO ALTER OR AMEND ORDER DISMISSING CASE AND/OR FOR RECONSIDERATION This matter comes before the court on Western Farm Credit Bank’s (“Bank”) motion to alter or amend and/or for reconsideration of the court’s order dismissing debtors' Chapter 12 case. Introduction After four years as debtors under Chapter 12 and...
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OPINION I The bankruptcy court allowed a law firm with a prepetition secured claim against the debtor’s property to represent that debtor as general counsel in the bankruptcy case. We hold that a professional with a claim secured by the debtor’s property should be viewed as not disinterested as a matter of law. We REVERSE. II FACTS CIC Investment Corporation (“Deb...
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MEMORANDUM AND ORDER This matter arose by Complaint filed January 28, 1994, with the plaintiffs/Debtors claiming the defendant Federal Crop Insurance Corporation (FCIC), effectuated a pre-petition setoff which constitutes a recoverable preference. The plaintiffs moved for summary judgment and the parties, by stipulation, have agreed that no genuine issue of fact exists and the issue may be re...
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MEMORANDUM OPINION DISMISSING TRUSTEE’S COMPLAINTS [ADV. NOS. 93-513S-JS AND 93-530U-JS AND DENYING TRUSTEE’S MOTION FOR SUMMARY JUDGMENT [ADV. NO. 93-503I-JS FINDINGS OF FACT 1. On May 5, 1992, involuntary Chapter 7 bankruptcy petitions were filed in this Court against Advance Insulation & Supply, Inc., Baltimore Home Insulation, Inc., Colonial Insulation & Supply, Inc., and...
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DECISION ON CHAPTER 7 TRUSTEE’S OBJECTION TO PROOF OF CLAIM FILED BY THE INTERNAL REVENUE SERVICE JURISDICTIONAL STATEMENT 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 admin...
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DECISION ON ORDER DENYING 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 affecting the administration of the estate, (E)— orders to turn over property of the estate, an...
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MEMORANDUM OF DECISION This matter came before the court on cross-motions for summary judgment filed by ORIX Credit Alliance, Inc. (plaintiff) and Bank of Tuscaloosa (defendant). Each party requests the court to find its interest in the property at issue to be superior to the other party’s interest and to resolve the priority dispute in its favor. The court has reviewed the briefs, su...
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Appellants Dr. Arthur Miller and Janet Miller, husband and wife, appeal from the district court’s ruling that their debt to ap-pellee Equitable Bank was non-dischargeable in bankruptcy. For the reasons stated below, we REVERSE and REMAND. I. Soon after appellee Equitable Bank commenced operation in 1987, one of its vice-presidents contacted appellant Dr. Arthur Miller and convinced hi...
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ORDER AFFIRMING BANKRUPTCY COURT’S ORDER ON LESSORS MOTION FOR RELIEF FROM STAY OR IN THE ALTERNATIVE. MOTION FOR ALLOWANCE OF ADMINISTRATIVE EXPENSE CLAIM BEFORE THIS COURT is an appeal from an Order On Lessor’s Motion for Relief from Stay or in the Alternative Motion for Allowance of Administrative Expense Claim entered by United States Bankruptcy Judge A. Jay Cristol on August 20, ...
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JOURNAL ENTRY Before the court is the Motion for Summary Judgment by the Internal Revenue Service (“IRS”) (Fil. # 9), and the debtor’s Resistance thereto (Fil. # 19). I conclude that the Motion for Summary Judgment should be sustained. FACTS The parties have agreed that there is no genuine dispute of fact in this case. On April 26, 1991, approximately a week and a half beyond the tax deadline,...
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42 F.3d 1050 74 A.F.T.R.2d 94-7438, 63 USLW 2398,95-1 USTC P 50,028,32 Collier Bankr.Cas.2d 873 In the Matter of Mitchell W. VOELKER, Debtor-Appellant. No. 94-2271. United States Court of Appeals,Seventh Circuit. Argued Nov. 9, 1994.Decided Dec. 12, 1994. Gary R. Allen, Bruce R. Ellisen, William S. Estabrook, Alice L. Ronk (argued), Dept. of Justice, Tax Div., Appel...
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*68 FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding seeking to avoid prepetition transfers as preferences came before the Court for a trial on September 21, 1994. Upon the evidence presented, the Court enters the following findings of fact and conclusions of law: Findings of Fact Plaintiff, Graphic Productions Corporation (“GPC”), is seeking to...
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MEMORANDUM This adversary complaint is before the Court. Appearing on behalf of debtor is Albert Burnes of Omaha, Nebraska. Appearing on behalf of the defendant is Paul Peter, of Bruckner, O’Gara, Keating, Hen-dry, David & Nedved, P.C., Omaha, Nebraska. This memorandum contains findings of fact and conclusions of law required by Fed. Bankr.R. 7052 and Ped.R.Civ.P. 52. This is *...
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OPINION I A car dealer perfected its security interest in a motor vehicle twelve days after the security interest became effective between the parties. The bankruptcy trustee brought an action to avoid the security interest pursuant to Bankruptcy Code (“Code”) Section 547. Oregon law contains a twenty day grace period for perfection of such interests. The bankruptcy court ruled that the Orego...
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43 F.3d 256 63 USLW 2415, 32 Collier Bankr.Cas.2d 909,26 Bankr.Ct.Dec. 540 In re BRENTWOOD OUTPATIENT, LTD., d/b/a Brentwood OutpatientMedical Center, Debtor.BONDHOLDER COMMITTEE, Appellee/Cross-Appellant,v.WILLIAMSON COUNTY, TENNESSEE, Appellant/Cross-Appellee. Nos. 93-5484, 93-5609. United States Court of Appeals,Sixth Circuit. Argued April 25, 1994.Decided Dec. 13, 1994. ...
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The question presented on appeal is whether the bankruptcy court properly enjoined a state-law based “successor product-line liability” action in an Alaska court against an entity which had acquired a corporate chapter 11 debtor’s assets by purchase and subject to an explicit disclaimer of liability on all unfiled claims relating to products manufactured by the chapter 11 debtor. On intermediat...
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Within the context of a Chapter 13 bankruptcy proceeding, Theodore Price and his wife, Ollie Price, brought an action against the United States seeking attorneys’ fees and costs for the Internal Revenue Service’s post-petition violation of an automatic stay. *1070 The bankruptcy court held that sovereign immunity was waived by the United States under Section 106 of the Bankruptcy ...
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OPINION INTRODUCTION The debtor brought this motion to estimate secured creditor ICC Lincoln Limited Partnership’s (“ICC”) claim at zero, to vacate ICC’s 1111(b) election and to vacate and strike ICC’s plan objection and voting ballot. ICC crossmoved seeking authorization to withdraw its 1111(b) election so that ICC may cast a ballot on its unsecured deficiency cla...
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MEMORANDUM OPINION I. INTRODUCTION The matter before the court is a motion for sanctions by the Northern Trust Company (“Northern”) against Douglas Gowan (“Gow-an”), Gowan’s motion to dismiss the Northern’s motion, and Gowan’s counter-motion for sanctions against the Northern and its attorneys. VIII South Michigan Associates (“Debtor”) is a limited partnership which held a l...
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MEMORANDUM OPINION I.INTRODUCTION The Debtors in this chapter 13 case bought a 1992 Bonneville with secured financing from Bank One. They now want to “strip down” Bank One’s lien on the car so that they can satisfy that lien by paying only the value of the car, which is less than the total balance remaining due Bank One. Relying upon In re Hernandez, 162 B.R. 160, 163 (Bankr.N.D.Ill.1993)...
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American Cast Iron Pipe Company (ACIP-CO) appeals from a district court order avoiding its judgment lien on the house of Peter Wrenn, a bankruptcy debtor. Concluding that ACIPCO’s lien remains valid after the discharge of the debt, and that Wrenn is not entitled to relief under either § 522(f) or § 506(d), 1 we reverse the district court and reinstate the bankruptcy court order. I. Background...
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ORDER HOLDING DEBT TO BE NONDISCHARGEABLE This matter is before the Court on the complaint filed by Phoenix Bowling Corporation (Phoenix) to determine the discharge-ability of an obligation owed to it by the debtor Jeanne Marie Mason, a/k/a/ Jeanne Marie Campoli, a/k/a Jeanne Marie Towner. After reviewing the evidence produced at trial and the briefs of the parties, the Court determin...
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This appeal addresses whether a law firm’s prior representations and continuing connections to a bankruptcy debtor and to other parties in interest causes a conflict of interest which prejudices or harms the debtor’s estate to the extent that the firm should be denied fees for its bankruptcy representation of the debtor. We hold that under the peculiar facts of this case it does. I. BACKGR...
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*77 FINDINGS OF FACTS AND CONCLUSIONS OF LAW The Plaintiff/Debtor, ARTHUR ROSEN-BLATT, (hereafter “ARTHUR”) seeks a determination that a net distributive award and attorneys’ fees award rendered by New York State Supreme Court in favor of Defendant/Former Wife, BELINDA F. WITTLIN, (hereafter “BELINDA”), is dischargeable under 11 U.S.C. § 523(a)(5). The parties agreed to submi...
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MEMORANDUM OPINION The purpose of this opinion is to announce my decision on the defendants Environmental Protection Agency’s and Department of Housing and Urban Development’s motion to dismiss the plaintiffs amended complaint. The motion is filed under both Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) which govern bankruptcy proceedings through Bankruptcy Rule 7012. *913...
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ORDER AFFIRMING BANKRUPTCY COURT’S FINDING OF CIVIL CONTEMPT This is an appeal by Kenneth V. Hem-merle, Sr. (“Hemmerle”) from two orders entered by Judge A. Jay Cristol of the United States Bankruptcy Court for the Southern District of Florida: (1) Order on Trustee’s *393 Motion for Contempt and Sanctions for Debt- or’s Disobedience of Order Compelling Turnover of Assets,...
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ORDER ON APPLICATION FOR AUTHORITY TO EMPLOY MDM SERVICES, INC., AS ENVIRONMENTAL CONSULTANT THIS is a Chapter 11 case and the matter before the Court is an Application for Authority to Employ MDM Services, Inc. (MDM), as Environmental Consultant filed by the Debtor River Ranch Inc., d/b/a Outdoor Resorts River Ranch (Debtor). The Application is opposed by the United States Trustee on the basis...
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AMENDED MEMORANDUM OPINION Before the Court is a complaint filed by Bettye Phillips to obtain declaratory relief regarding potential claims Bettye Phillips may have against the Debtor. The Court consolidated the complaint for trial with an adversary proceeding filed by the Debtor against Bettye Phillips (Adversary No. 94-6020). At the conclusion of the trial, the Court rendered its findin...
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*262 FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon a complaint filed by debtors, Floyd and Elizabeth Binkley, to determine the dischargeability of tax debts for the years 1979 through 1989. A trial regarding this issue was held on June 21, 1994. After hearing the evidence presented, the Court makes the following Findings of Fact and Conclusions o...
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ORDER OF REMAND THIS CAUSE is before the Court upon the plaintiff’s “Objection to Removal of State Court Action,” filed on August 12, 1994, which the Court will treat as a motion for remand, and the Trustee’s Motion to Intervene, originally filed in the state court proceeding. Inasmuch as the Court will remand this matter, adjudication of all other pending motions are better left to the discreti...
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MEMORANDUM OPINION Piper Aircraft Corporation (“Piper” or “Debtor”) seeks relief to reduce its unpaid real property and personal property tax obligations for the years 1989 through 1993. The Debtor’s right to seek such relief under § 505 of the Bankruptcy Code is challenged by the tax collector and by the holder of a tax certificate. The Debtor has filed a Motion for Determination of Amount...
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DECISION ON DEBTOR’S MOTIONS TO AVOID LIEN This case came on for hearing on April 12, 1994, of the motions of the debtor to avoid a hen of the creditor, John D. Fernandez, P.A. (Documents Nos. 18 and 19). The motions present an unusual twist on homestead judicial hen avoidance in Florida in circumstances where tenants by the entireties become tenants in common and then one co-tenant conveys h...
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38 F.3d 86 63 USLW 2263, 26 Bankr.Ct.Dec. 153, Bankr.L. Rep. P 76,146 In re SECURED EQUIPMENT TRUST OF EASTERN AIR LINES, INC., Debtor,SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION LNCINVESTMENTS, INC.; Charter National LifeInsurance Company; and Magten AssetManagement Corporation, Appellants,v.FIRST FIDELITY BANK, as Collateral Trustee, United JerseyBank, and Secured Equipment Trust o...
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37 F.3d 155 63 USLW 2247, 26 Bankr.Ct.Dec. 144, Bankr.L. Rep. P 76,142 In re David STRUMPF, Debtor.CITIZENS BANK OF MARYLAND, Plaintiff-Appellee,v.David STRUMPF, Defendant-Appellant. No. 92-1519. United States Court of Appeals,Fourth Circuit. Argued Feb. 2, 1993.Decided Oct. 13, 1994. ARGUED: John Randall Owen, Jr., John R. Owen, Jr. & Associates, P.C., Hyattsv...
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OPINION Before the court is an appeal of a bankruptcy court order dated November 24,1993. The sole issue on appeal is whether the *686bankruptcy court erred in holding that the clear language of 11 U.S.C. § 522(f)(1) of the Bankruptcy Code permits the debtor to avoid the appellee’s lien only to the extent that it impairs his homestead exemption of $2,100, thereby rejecting the debtor’s contention...
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MEMORANDUM This matter came before the court upon the Notice and Application for Allowance of Compensation and Reimbursement of Expenses filed by counsel for the debtor and the objection of the United States Department of Housing and Urban Development (“HUD”). The issue presented is whether funds in which HUD has a security interest may be used to pay the debtor’s attorney fees incurr...
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OPINION On July 19, 1994, this Court heard oral argument for appellant United States Trustee’s (“UST”) appeal from Bankruptcy Judge Dorian’s authorization, pursuant to 11 U.S.C. § 327, of Charles Lazaro (“Lazaro”) as bankruptcy counsel to debtor-in-possession SID-CO in its Chapter 11 bankruptcy. Upon consideration of the written and oral arguments, the Bankruptcy Court is affirmed for the...
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MEMORANDUM OF DECISION ON APPLICATION FOR EMPLOYMENT OF COUNSEL The debtor-in-possession in this Chapter 11 case has applied for authorization to employ Charles L. Lazaro as general counsel. The United States Trustee has objected on the ground that Mr. Lazaro has previously performed legal services including drafting and negotiating certain unspecified contracts for one Arnold Kaplan and that t...
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MEMORANDUM OPINION Plaintiff brings this adversary proceeding claiming an award of attorney’s fees against Keith Alan Kline, debtor/defendant (“debt- or”), is excepted from discharge pursuant to 11 U.S.C. § 523(a)(5). This is a core proceeding under 28 U.S.C. § 157(b)(2)(I) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons set forth...
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MEMORANDUM AND ORDER Keith A. Kline (“appellant”) appeals an order of the bankruptcy court in which an award of attorney’s fees in connection with a divorce proceeding was deemed a nondis-ehargeable debt under § 523(a)(5) of the Bankruptcy Code. 1 For reasons more fully set forth below, the order of the bankruptcy court is reversed insofar as it permits a direct claim against appellant by t...
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MEMORANDUM OPINION In this adversary proceeding plaintiff filed a complaint seeking to except a debt from debtor’s discharge pursuant to provisions of 11 U.S.C. § 523(a)(5) and also to deny debt- or’s discharge in bankruptcy pursuant to 11 U.S.C. § 727(b). In response debtor moved to dismiss, alleging that plaintiff is without standing to bring the action. Because this court finds that the plain...
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MEMORANDUM AND ORDER Plaintiff, a glass installation company, brought this diversity action against defendant, a corporation owning several large department stores nationwide, alleging that defendant owes plaintiff $344,532.20 for glass installation services. Defendant moves for summary judgment. Defendant says plaintiffs claim is barred by defendant’s discharge in Chapter 11 bankrup...
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MEMORANDUM IN SUPPORT OF ORDER OVERRULING OBJECTIONS TO CLAIM NOS. 708, 801, 804 AND 834 The debtor’s agent, Edward Hostmann, Inc. and the unsecured creditors’ committee objected to various priority tax claims filed by several states. The common issue presented is whether the unpaid priority tax claims which were allowed in the debtor’s first chapter 11 (“Sprouse I”) retained their priority cha...
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MEMORANDUM OF DECISION The matter before the court is a Motion for Summary Judgment filed by the defendant, the United States of America, on behalf of its agency, the Internal Revenue Service (IRS), in an action brought by William Gail Jones, Jr. (Debtor) to determine the dis-chargeability of certain of his tax debts. The Debtor filed a response to the IRS’s motion, and the court took the...
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OPINION AND ORDER DENYING APPLICATION TO EMPLOY ATTORNEY WITHOUT PREJUDICE This matter is before the Court on Perrys-burg Marketplace Company’s (the “DIP”) application to employ the law firm of Nathan & Roberts (the “Firm”) as attorneys for the DIP (the “Application”) and the United' States Trustee’s (“UST”) objection thereto. The Court finds that the Application is not well taken and sho...
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OPINION This matter comes before the Court pursuant to 28 U.S.C. § 158(a) on appeal from the Order of the United States Bankruptcy Court for the Eastern District of Virginia, *425 entered August 3, 1994. After a trial on the merits, the bankruptcy court held that the debt was nondischargeable in bankruptcy in the amount of $60,000.00. At issue in this appeal is (1) whether the bankruptcy co...
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MEMORANDUM OPINION THIS MATTER came before the Court for a hearing on October 18, 1994, regarding the Order issued September 21, 1994 by the Honorable Edward W. Nottingham of the United States District Court for the District of Colorado. The issue presented is a matter of first impression before the Bankruptcy Court. On September 21,1994, Judge Nottingham ordered, inter alia, that this Bank...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation ease and the matter under consideration is a Complaint filed by Mario Amici (Debtor) seeking a determination that two penalties assessed against the Debtor by the Internal Revenue Service (IRS) are dischargeable. The Debt- or also requests injunctive relief against the IRS. The Complaint contains t...
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MEMORANDUM OPINION This matter comes before the Court on the complaint of AVCO Financial Services, Inc. (“AVCO”) for determination of the discharge-ability of a debt owed to it by Everette Abdul’Faruq and Shawna Abdul’Faruq (the “Abdul’Faruqs”) pursuant to 11 U.S.C. § 523(a)(2)(B). This is a core proceeding, over which this Court has jurisdiction pursuant to 28 U.S.C. §§ 157(b)(2)(I) and 1334...
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Heard Family Trucking, Inc. (“Heard Family”), a chapter 7 debtor located in Mississippi, appeals the district court’s ruling that a creditor’s lien on a Heard Family truck was perfected by the issuance of an Alabama certificate of title. Heard Family argues that, under Mississippi law, the exclusive means of perfecting a security interest in a Mississippi vehicle is through a title issued under...
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MEMORANDUM ON OBJECTION TO CONFIRMATION FILED BY SECURITY PACIFIC HOUSING SERVICES Security Pacific Housing Services (Security Pacific), a secured creditor, objects to confirmation of the debtor’s Chapter 13 Plan filed September 9,1994, as modified on October 19, 1994, by a First Amended Plan Prior to Confirmation (Plan). The sole confirmation issue is whether the Plan, which provides for the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon Gregory A. Anderson, P.A’s (“Anderson”) Amended and Restated First Application for Allowance of Compensation for Professional Services Rendered and Reimbursement of Costs and Expenses Incurred as Counsel for the Chapter 7 Trustee. Upon the evidence presented at the hearing held September 22, 1994, the Court ent...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon a complaint in an adversary proceeding filed pursuant to Rule 7001(1), (7), and (9), and Rule 2017(a), Federal Rules of Bankruptcy Procedure, to recover monetary damages and to obtain injunctive and declaratory relief pursuant to 11 U.S.C. § 329, and pursuant to the Florida Deceptive and Unfair Trade Practices Ac...
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MEMORANDUM AND ORDER THIS MATTER came on before the Court for trial on Plaintiffs pre-petition legal malpractice claims. 1 Appearances were made by Peter J. Lucas of Doherty, Rumble & Butler, P.C., on behalf of Plaintiff Miramar Resources, Inc., and by David M. Rich of Clana-han, Tanner, Downing and Knowlton, P.C., on behalf of Defendant Thomas B. Webb. The first issue in ...
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MEMORANDUM OF DECISION Before the Court for determination are several motions arising out of a “Complaint for Avoidance or Preferential Transfers, Breach of Agreement, and Breach of Contract/Distribution Agreement” (the “Complaint”) filed by the Debtor, Aero-Fastener, Inc. (the “Debtor” or “Plaintiff’) against Si-erracin Corporation (“Sierracin” or “Defendant”). I. FACTS The...
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OPINION On this motion, we are reconsidering our denial of the trustee’s summary judgment motion seeking disgorgement of monies paid to the Township of Pemberton (“Township”) following the sale of assets of debtor’s estate. FACTS Tabone, Inc. (“debtor”) filed a petition for relief under Chapter 11 of the Bankruptcy Code on February 25, 1991. Debtor’s case was converted to Ch...
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OPINION ON DEBTORS’ MOTION TO MODIFY CLAIM On this motion, debtors, Edwin Arvelo, Jr. and Carmen Nydia Arvelo, seek to reduce the claim of Chemical Mortgage Company (“Chemical”). Debtors assert that Chemical, as an undersecured creditor, is not entitled to post-petition interest on pre-petition ar-rearages. FACTS AND PROCEDURAL HISTORY On December 14, 1990, Edwin Arvelo,...
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MEMORANDUM The question is whether a claim for property damage can be nondischargeable under § 523(a)(9) 1 of the Bankruptcy Code. Only claims for personal injury or wrongful death can be nondischargeable under 11 U.S.C. § 523(a)(9); property damage claims are outside the scope of that section. The following are findings of fact and conclusions of law. Fed.R.Bankr.P. 7052. I. On February ...
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MEMORANDUM OF DECISION Before the court are First Citizens Bank’s (“First Citizens” or “the bank”) objection to the debtor’s exemption claim in a self-directed individual retirement account (“IRA”) and the debtor’s motion to avoid First Citizens’ lien in the same asset. For the reasons set forth below, the bank’s objection is overruled and the debtor’s lien avoidance motion is, after ...
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MEMORANDUM OPINION Several matters are before the court at this time. Richard Kronz and Sylvia Kronz (the “Kronzes”) seek a determination at Adversary No. 93-2576-BM as to the validity, priority, and extent of their mortgage lien against real property located at 406 Cubbage Street and 117 East Mall Plaza in Carnegie, Pennsylvania. Debtors deny that the lien is valid and alternati...
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This appeal raises an issue frequently debated in bankruptcy courts around the country, but never yet addressed by this court— namely, the permissible scope of a hearing on a motion for relief from the automatic stay under § 362 of the Bankruptcy Code. 1 Paul J. Grella, trustee in bankruptcy (“Trustee”) for debtor The Beverly Corporation (the “Debtor”), appeals the district court’s a...
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45 F.3d 363 32 Collier Bankr.Cas.2d 1341, 97 Ed. Law Rep. 133,Bankr. L. Rep. P 76,378 In re Raymond L. WOODCOCK, Debtor.Raymond L. WOODCOCK, Appellant,v.CHEMICAL BANK, NYSHESC, as servicing agent for ChemicalBank; Columbia University; UniversityAccounting, as servicing agent forColumbia University; U.S.Attorney General, Appellees. No. 94-1101. United States Court of Appeals,Ten...
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On this appeal, the appellants — Edward Kaufman, Robert Richards, and Martin Rochman — challenge an injunctive order issued by the federal bankruptcy court in New Hampshire, and affirmed by the district court, 848 F.Supp. 318. That order enjoined appellants from bringing a securities fraud suit against the Public Service Company of New Hampshire (“Public Service”), its committee of equity securit...
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In this appeal we must determine whether a bankruptcy court, following a bench trial, properly may enter a money judgment against a debtor on the basis of a creditor’s claims when the debtor voluntarily withdraws his Chapter 13 bankruptcy petition after the trial. The United States Bankruptcy Court for the Eastern District of New York, Hall, B.J., answered this question in *16...
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Attorney Martin Paul Solomon represented Shearn Moody in proceedings concerning Moody’s bankruptcy and filed an application for compensation from the bankruptcy estate for his services. The district court referred the fee application to Bankruptcy Judge Letitia Z. Clark. After a hearing, Judge Clark denied Solomon’s application, and her decision was entered in the docket for the Moody bankruptcy ...
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44 F.3d 1431 32 Collier Bankr.Cas.2d 1377, 26 Bankr.Ct.Dec. 735,Bankr. L. Rep. P 76,321 In re HARRIS PINE MILLS, Debtor.George MAITLAND; Neil Robblee; Cary Garman, Plaintiffs-Appellants,v.John MITCHELL; John Mitchell, Inc., an Oregon corporation;Rodgers Higgins, and Harris Pine Mills, Inc., anOregon corporation, Defendants-Appellees.In re HARRIS PINE MILLS, Debtor.George MAITLAND; Nei...
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44 F.3d 1310 63 USLW 2475, 32 Collier Bankr.Cas.2d 1391,26 Bankr.Ct.Dec. 749, Bankr. L. Rep. P 76,336 In re FEDERATED DEPARTMENT STORES, INC.; Allied StoresCorporation, Debtors.M. Scott MICHEL, United States Trustee, Plaintiff-Appellant,v.FEDERATED DEPARTMENT STORES, INC.; Shearson Lehman, Inc.,Defendant-Appellees. Nos. 93-3745, 93-4186. United States Court of Appeals,Sixth Circ...
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45 F.3d 737 63 USLW 2446, 32 Collier Bankr.Cas.2d 1405,26 Bankr.Ct.Dec. 744, Bankr. L. Rep. P 76,341 TRAVELERS INSURANCE COMPANY, Appellantv.H.K. PORTER COMPANY, INC.; The Official Committee ofUnsecured Creditors, of H.K. Porter Company, Inc.; AikenCounty Public Schools; Altoona Area School District;Anderson County Public Schools; Barnwell School District#45; Berea Independent School...
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45 F.3d 702 32 Collier Bankr.Cas.2d 1425, 26 Bankr.Ct.Dec. 799,Bankr. L. Rep. P 76,361 In re S.G. PHILLIPS CONSTRUCTORS, INC., Debtor.S.G. PHILLIPS CONSTRUCTORS, INC., Appellant-Cross-Appellee,v.CITY OF BURLINGTON, VERMONT, Appellee-Cross-Appellant. Nos. 1813, 1950, Dockets 94-5009(L), 94-5011XAP. United States Court of Appeals,Second Circuit. Argued June 8, 1994.Decided Jan. ...
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Defendant Oakland Gin Co., Inc. challenges the district court’s decision affirming the bankruptcy court’s ruling in favor of the bankruptcy trustee for the Julien Company on summary judgment regarding defendant’s claims under Articles 2 and 9 of the Uniform Commercial Code and the United States Warehouse Act, 7 U.S.C. § 262. The questions concern the superior title in the delivered cotton. ...
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Vacated and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Justice POWELL and Judge MOTZ joined. *71 OPINION The bankruptcy court’s order confirming SPR’s Chapter 11 reorganization plan was appealed to the district court by the Resolution Trust Corporation (RTC), a secured creditor of SPR Corporation (SPR). The district court dismissed RTC’s bankruptcy appeal for f...
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The defendant-trustee, John J. Hunter, appeals the district court’s order reversing a decision of the bankruptcy court and holding that the trustee could not avoid the statutory liens of the plaintiff-internal Revenue Service (the “IRS”). The sole issue on appeal is whether the district court properly determined that the trustee could not, under the Bankruptcy Code, 11 U.S.C. § 545(2), avoid th...
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ORDER DENYING REQUEST FOR PAYMENT OF ADMINISTRATIVE EXPENSE FILED BY AMERICAN DRUG STORES, INC. AND DENYING MOTION FOR RECONSIDERATION OF DISALLOWANCE OF GENERAL UNSECURED CLAIM This matter is before the Court on the request for payment of administrative expense filed by American Drug Stores, Inc. d/b/a Oseo Drug Stores (American Drug) and the objection to the request filed by Food Ba...
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MEMORANDUM DECISION AFTER TRIAL Shakespeare could have had the facts of this case in mind when he wrote: “Neither a borrower nor a lender be,/for loan oft loses both itself and friend * * * ” Hamlet, Act 1, Scene 3. This adversary proceeding was commenced by Jack Kuper (“Kuper”) to obtain a declaration that a $100,000 personal loan made to the debtor is nondischargeabl...
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Decision on Motion to Avoid a Judicial Lien The debtor, Irene Vizentinis (hereinafter, the “Debtor”), moves pursuant to 11 U.S.C. § 522(f) to avoid a judicial lien as impairing her homestead exemption under New York Civil Practice Rules and Procedure (hereinafter, “CPLR”) Section 5206(a) and New York Debtor and Creditor Law (hereinafter, “DCL”) Section 282. The City of New York (hereinafter, th...
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MEMORANDUM OPINION This opinion sets forth the court’s decision on a motion by plaintiff E & C Holding Company, the debtor-in-possession (hereinafter “the debtor”), to vacate the court’s order of April 26, 1994 granting partial summary judgment in favor of defendant Township of Piscataway (hereinafter “Piscataway”). The court determined on that motion that Piscat-away held a claim against defen...
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MEMORANDUM OF DECISION The Debtor, Parke Imperial Canton, Ltd. objects to a Notice of Removal filed by Developers Diversified Realty Corporation, Great West Life and Annuity Insurance Company, Great West Life Assurance Company and SouthTrust Bank of Central Carolina (collectively, the Removers). The Debt- or also moves that the complaint be remanded to the state court and/or that this cou...
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The bankruptcy court required Appellant John Arens to disgorge a $75,000 retainer he received for legal services and to pay that amount to the plan trustee in these two Chapter 11 cases. Appellee Farm Credit Bank had moved for disgorgement of the fee, and the United States Trustee moved for examination of debtors’ transactions with their attorneys. After an evidentiary hearing, the bankruptcy c...
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*453 DECISION AND ORDER PRELIMINARY STATEMENT Before the Court 1 is a motion (“Motion”) by Kenneth Giordano, the above-referenced debtor (“Debtor”), for an order avoiding judicial liens held by Midlantic Commercial Leasing Corp. (“Midlantic”) and Polychrome Corporation (“Polychrome”). Debtor alleges the judicial liens must be avoided since they impair the homestea...
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MEMORANDUM DECISION Preliminary Statement Before the Court 1 is a motion which brings forth a familiar issue: whether to allow a debtor to amend the bankruptcy schedules to add a debt not originally included in the petition, and to grant the debtor a discharge of the debt. One vexing aspect of this motion has created the problem in this and many of our other cas...
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OPINION This matter is before the Court upon the Objection of St. Edmond’s Savings and Loan Association (“the Association”) to the Application of John D. Maida Associates (“Maida”) for Allowance of Interim Compensation and Reimbursement of Expenses (“the Application”). A hearing was held on July 18, 1994, after which the Association filed a memorandum of law in support of its position...
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OPINION The debtors filed an objection to an amended proof of claim filed by a secured party after the secured party foreclosed on the collateral eight months after repossession. The debtors assert, in an effort to bar the secured party from obtaining a deficiency judgment, that the secured party elected to retain the collateral in satisfaction of the obligation and that the sale was ...
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OPINION AND ORDER GRANTING ORDER FOR RELIEF UPON INVOLUNTARY PETITION This matter is before the Court on the involuntary bankruptcy petition filed by Neill Ann Hancock, Administrator, WWA of the Estate of Louis A. Schultz (“LAS Estate”), Kadish & Bender (“K & B”), Neill Ann Hancock, Executrix of the Estate of Ann J. Schultz (“AJS Estate”), Yamaha Motor Corp., U.S.A (“YMC”), and Prospec El...
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MEMORANDUM OPINION AND ORDER CONTINUING AND MODIFYING PRELIMINARY INJUNCTION The Court conducted a hearing on November 28, 1994 in furtherance of an Order Entering Preliminary Injunction entered by Chief Bankruptcy Judge Cristol on November 4, 1994 (“November 4 Order”). The November 4 Order was entered following emergency hearings on November 3 and 4, 1994 on the Verified Complaint of the for...
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ORDER DISMISSING MOTION FOR TURNOVER OF PROPERTY OF THE ESTATE UNDER 11 U.S.C. § 542(b) AND DENYING MOTION FOR ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT This matter is before the Court on the “Motion for Turnover of Property of the Estate Under 11 U.S.C. § 542(b) or, in the Alternative, Motion for Order to Show Cause why Defendants Should not be Held in Contempt” f...
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DECISION AND ORDER This matter is before the Court pursuant to the hearing on the Disclosure Statement filed by 354 East 66th Realty Corp. (the “Debtor”). In its Plan, the Debtor proposes to apply the adequate protection payments already made to Coolidge New York Equities Limited Partnership (“Coolidge” and/or the “Secured Creditor”) to reduce its secured claim against the Debtor. If the adeq...
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MEMORANDUM DECISION ON MOTION TO DISMISS AND CROSS-SUMMARY JUDGMENT MOTION ON AN ACTION TO AVOID PREFERENTIAL TRANSFER The Internal Revenue Service (“I.R.S.”) moved to dismiss, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure (“Fed. R.Civ.P.”) and Rule 7012 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”), the adversary proceeding filed by Stephen E. O’N...
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MEMORANDUM OF DECISION RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I. ISSUE The plaintiff contends in her motion for summary judgment that a judgment she received in state court is non-disehargeable under § 523(a)(2)(A) as a debt arising from the debtor-defendant’s fraud and that the state-court judgment should be given collateral estoppel effect in the bankruptcy court. The debtor resp...
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ORDER DENYING DEFENDANT’S EX-PARTE MOTION TO VACATE JUDGMENT THIS MATTER came before the Court on Debtor-Defendant’s Ex-Parte Motion to Vacate Judgment filed with this Court on December 23, 1994. Judgment was entered against Defendant in the above-styled adversary proceeding on July 8, 1991. Defendant satisfied the Judgment on November *102130, 1994 and now asks the Court to vacate the Judgment....
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ORDER ON OBJECTION OF UNITED STATES TRUSTEE TO CONFIRMATION OF CHAPTER 11 PLAN THIS CAUSE came on to be heard on January 12,1995, at the confirmation hearing on the Debtor’s First Amended Plan of Reorganization (the “Plan”). Objections to the Plan were filed by the United States Trustee (the “UST”) and by Curt Ogden Equipment Co. (“Ogden”), the largest creditor of this estate. Ogden, ...
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Chapter 11 debtors Jimmie Lee and Ferol Johnston appeal the decision of the Bankruptcy Appellate Panel affirming the bankruptcy court’s order authorizing the Chapter 11 Trustee to abandon a large residential property known as El Granada. The John-stons argue that abandonment was improper because El Granada was subject to imminent foreclosure and because the intent of the abandonment was to shif...
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OPINION AND ORDER This cause is before the Court on appeal from the Bankruptcy Court pursuant to 28 U.S.C. § 158(a). Although a bankruptcy judge’s findings of fact are not set aside unless clearly erroneous, conclusions of law are subject to de novo review. See Bankruptcy Rule 8013; In re Comer, 723 F.2d 737, 739 (9th Cir.1984). On November 4, 1992, Judge Krasniewski issued an order vacat...
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45 F.3d 373 75 A.F.T.R.2d 95-662, 63 USLW 2434,32 Collier Bankr.Cas.2d 1675,Bankr. L. Rep. P 76,322 In re Hugh Daniel DEPAOLO, dba Hugh D. DePaolo, M.D., dbaCasper Birthing Center; and SIRI JANE DEPAOLO, Debtors.Hugh Daniel DEPAOLO, dba Hugh D. DePaolo, M.D., dba CasperBirthing Center; and Siri Jane DePaolo, Appellees,v.UNITED STATES of America, acting through the INTERNALREVENUE SERVIC...
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MEMORANDUM DECISION AND ORDER DENYING PAN AM’S MOTION FOR TRANSFER OF VENUE This matter came before the Court for hearing on December 12, 1994 at 2:30 p.m. on the Motion of Pan Am World Airways, Inc. to transfer this adversary proceeding to the United States Bankruptcy Court for the Southern District of New York. For the reasons set forth below, the Motion is DENIED. This Memorandum Decisio...
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Appellant United States of America (“Government”) filed this appeal from the December 23, 1993 order of the United States Bankruptcy Court for the Western District of Wisconsin, the Hon. Thomas S. Utschig presiding. That order sustained the debtor Mitchell W. Voelker’s objection to the Government’s proof of claim for federal taxes. Subject matter jurisdiction exists pursuant to 28 U.S.C. § 158....
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MEMORANDUM OPINION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Introduction The United States of America on behalf of its agencies, the Internal Revenue Services and the Department of Housing and Urban Development, by and through the attorneys for the Eastern District of Michigan brought this motion pursuant to Fed.R.Civ.P. 56. This matter is before the Court upon P...
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Opinion The question in this case is whether a debtor in possession can avoid pre-petition ad valorem tax liens on personal property. Various tax creditors 1 (the Taxing Units) claim pre-petition liens on certain inventory and equipment previously located in three stores closed after the filing of this Chapter 11 case by the debtor in possession, Winn’s Stores, Inc. (Winn’s). S...
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MEMORANDUM OPINION CROSS MOTIONS FOR SUMMARY JUDGMENT The matters before the court are the cross motions for summary judgment of Defendant State of California and Plaintiff Envirodyne Industries, Inc. (“Envirodyne” or “Debtor” or “Plaintiff’). In this adversary proceeding, Envirodyne seeks to equitably subordinate those shareholders of pre-merger Enviro-dyne who have not tend...
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OPINION The principal question in this ease is whether section 546(e) of the Bankruptcy Code bars a trustee from recovering as a fraudulent conveyance transfers made by a stockbroker pursuant to a reverse repurchase agreement used to facilitate a leveraged buy out. I conclude that there are no genuine issues of material fact and that section 546(e) bars trustee’s action, and therefore grant sum...
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DECISION ON MOTION FOR SUMMARY JUDGMENT This matter comes before the Court upon a motion by Eastern Motor Corporation (“Eastern”) to compel John’s Meat Emporium, Inc. (the “Debtor”) to pay it an administrative expense of $16,627.20 pursuant to section 503 of the Bankruptcy Code, 1 for the post-petition use of two of its 1987 GMC vans. At a hearing on January 27,1994, this C...
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*979 MEMORANDUM AND ORDER ON COMPLAINT TO SELL REAL PROPERTY FREE AND CLEAR OF THE INTEREST OF CO-OWNER The defendant challenges the constitutionality of § 363(h) and (j) of the Bankruptcy Code. For the reasons that follow, I conclude that those subsections are constitutional. BACKGROUND The plaintiff is the chapter 7 trastee in this case and commenced this adversary pr...
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*21 DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT Under the court’s consideration are cross motions for summary judgment on the plaintiffs nondischargeability complaint. For reasons explained below, the plaintiffs motion for summary judgment will be granted. BACKGROUND FACTS The plaintiff, Old Republic Surety Company, as surety on behalf of the defendant-debtor...
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The Nancy Elizabeth R. Heggland Family Trust and Radoy W. Heggland (referred to collectively as the “Heggland Trust”) appeal the district court’s decision affirming the bankruptcy court’s determination that a payment made to the Heggland Trust by Hedged Investments Associates, Inc., was void as a preference. We have jurisdiction under 28 U.S.C. § 158(d), and affirm. BACKGROUND 1 ...
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MEMORANDUM OPINION This matter comes to be heard upon the motion of the IRS to dismiss Debtors petition for relief under Chapter 13 because Debtors owe in excess of $250,000.00 in noncontin-gent, liquidated, unsecured debt. This Court having now considered the operative facts and the arguments of counsel finds as follows. Statement of Facts On September 27, 1994, the IRS se...
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In this adversary proceeding, the bankruptcy court ruled that Jereld J. and Shirley K. Michael could not claim a homestead exemption because they failed to record a declaration of homestead as required by Montana law before filing their bankruptcy petition. The district court affirmed, and the Michaels appeal. We vacate and remand. I When the Michaels filed their voluntary Chapter 7 bankruptcy pet...
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ORDER ON OBJECTION TO CONFIRMATION OF CHAPTER IS PLAN In a case such as this, filed under Chapter 13 of the Bankruptcy Code, 1 the provisions of § 1325(a) govern whether the court may confirm the debtor’s Chapter 13 plan. Section 1325(a)(5) deals with allowed secured claims provided for in the plan. Its requirements are met if the holder of the claim accepts the plan [§ 132...
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Appellants filed a plan of reorganization to which only the Chapter 13 trustee objected. No secured creditors objected. The bank *1406 ruptcy appellate- panel (“BAP”) held that a Chapter 13 trustee had standing to object to confirmation of a plan under § 1325(a)(5) of the Bankruptcy Code. 1 We have jurisdiction under 28 U.S.C. § 158(d) and we affirm. We hold that the trustee had standing to o...
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49 F.3d 98 63 USLW 2548, 32 Collier Bankr.Cas.2d1833, 98 Ed. Law Rep. 30,Bankr. L. Rep. P 76,392 Lisa LEEPER; William Leeper; Dwight Webster and DellaWebster, Appellants,v.PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY, (PHEAA),Student Loan Service Center;Gary J. Gaertner, Trustee. Nos. 94-3372, 94-3373. United States Court of Appeals,Third Circuit. Submitted under Third Ci...
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OPINION I The court denied the appellant’s application to be employed as counsel for the debtor in possession on the basis that counsel was not disinterested. Later, the appellant filed a fee application requesting administrative claim status for the fees it charged in providing services to the debtor in possession. The court denied this application. We AFFIRM, but base our ruli...
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MEMORANDUM DECISION AND ORDER Pending before the Court are motions to dismiss three of the many adversary proceedings filed pursuant to 11 U.S.C. § 547 1 by the chapter 7 trustee in this converted case. Resolution of the legal issue raised by the motions to dismiss that assert these proceedings are filed out of time, hinges upon the interpretation of § 546(a). In this factual v...
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OPINION AND ORDER The consolidated Debtor, Jewelcor, has filed a Motion to Assume an Executory Contract, that is, a certain lease with M & G Equities. M & G has countered with a Motion to Compel Rejection of the Lease and a Motion to Compel Payment of Administrative Rent. Also pending between the parties, but not yet heard by the Court, is a Motion of Jewelcor to Compel Specific Performance of ...
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ORDER (1) AFFIRMING BANKRUPTCY COURT’S ORDER DENYING CONFIRMATION OF DEBTOR’S PLAN OF REORGANIZATION AND DISMISSING CASE DATED AUGUST 24, 1993, AND (2) AFFIRMING BANKRUPTCY COURT’S ORDER ON DEBTOR’S EMERGENCY MOTIONS DATED AUGUST 27, 1993 BEFORE THIS COURT is University Creek Plaza, Ltd.’s (“University”) appeal from the Bankruptcy Court’s Order Denying Confirmation of Debtor’s Plan of...
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OPINION AND ORDER The facts are not in dispute. The Debtors, John and Dalen Castellanos (hereinafter “Debtors”), have filed a complaint under 11 U.S.C. § 506 of the bankruptcy Code in an attempt to “strip down” two of three mortgages against their property. It is stipulated that a first mortgage lien of Sovereign Bank f/k/a Penn Savings Bank is collateral for an indebtedness of Sixty-Eight ...
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OPINION COMES NOW before the Court for consideration the Pee Applications of Winstead, Sechrest & Minick, P.C. (“WSM”), counsel for the Chapter 7 Trustee, Alan D. Sibarium (“Trustee”) in the above referenced cases. These Applications are being consolidated for the purposes of this opinion because they involve the same applicant, WSM, and raise the same issue. This opinion constitutes ...
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OPINION I FACTS The debtor, Ramon F. Beltran (“Beltran”), filed for bankruptcy under Chapter 13 of the Bankruptcy Code (“Code”) 1 on February 4, *906 1992. The deadline for filing proofs of claim was June 18, 1992. The Chapter 13 plan was confirmed on November 3, 1992. Calmat Co. of Arizona (“CalMat”) filed its proof of claim for $61,754.53 on December 9, 1992. The Chapter 13 trustee,...
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OPINION INTRODUCTION This action was commenced by the filing of an Adversary Complaint and an Order to Show Cause by the Chapter 7 trustee, John Bracaglia, and by First Fidelity Bank, N.A. (“First Fidelity”), an undersecured creditor of debtor. The complaint seeks various types of relief including the voiding of fraudulent transfers and the substantive extension and consolida...
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MEMORANDUM OF DECISION Fischer Enterprises, Inc. (“Fischer”), an overseeured creditor, seeks an order compelling the trustee to disburse, subject to available funds, fees, costs and default interest associated with its claim. For the reasons set forth below, the motion is granted in part and denied in part. 1 BACKGROUND On May 11,1992, Anna Kalian (“Kalian” or the “...
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The principal question raised in this appeal is whether Appellant’s action alleging willful violation of the automatic stay was rendered moot by dismissal of the underlying bankruptcy case. We conclude that the action was not rendered moot and reverse the bankruptcy court’s order dismissing the action. FACTS On June 24, 1992, Betty Jean Davis (Appellant) filed an action in Fresno County Superior C...
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ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS AND DISMISSING ADVERSARY PROCEEDING This adversary proceeding came before the Court for pre-trial conference on January 18, 1995, upon the complaint for declaratory judgment filed by plaintiff, Larry Wesehe, and a motion for judgment on the pleadings filed by defendant, United States of America Internal Revenue Service. Plaintiff...
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MEMORANDUM OPINION ON MOTION TO SUBSTITUTE The issue before the Court is whether the trustee may be allowed to substitute as plaintiff in an action under section 727, after the deadline for complaints has passed. After reviewing the cases cited by the parties, the Court concludes that the weight of authority favors the trustee. Resolution of the matter centers on Rule 7041, F.R.Bankr.P., whic...
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Freedom Group, a bankrupt, filed an adversary proceeding against Lapham-Hickey, seeking to undo what it claimed had been a preferential transfer resulting from a judicial seizure of Freedom Group’s bank account. 11 U.S.C. § 547. The bankruptcy judge agreed with Freedom Group and ordered Lapham-Hickey to return the money, but the district court reversed, so the case comes to us on Freedom Group’...
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ORDER ON EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER THIS IS a Chapter 11 case originally commenced by an Involuntary Petition filed against Regency Realty Associates, a general partnership, on November 17,1994 by Farmer’s Supply, Inc., Coastal Fertilizer & Supply, Inc. and Howard Fertilizer Co., Inc. By consent, this Court entered an Order for Relief on December 19, 1994. On Decembe...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation case, and the matter under consideration is the dis-chargeability vel non of the debt admittedly due and owing by Gregory E. Berhow and his wife, Mary Ann Berhow (Debtors) in the amount of $5,767.82. The claim of nondis-ehargeability is asserted by First Deposit National Bank (Bank) who contends that the ob...
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ORDER ON MOTION FOR STAY OF ORDER GRANTING MOTION FOR PAYMENT OF TRUSTEE’S FEES AND COSTS BY PROFESSIONALS FOR THE CHAPTER 11 TRUSTEE THIS IS a dismissed Chapter 11 case and the matter under consideration is a Motion for Stay of Order Granting Motion for Payment of Trustee’s Fees and Costs by Professionals for the Chapter 11 Trustee, filed by Dennis J. LeVine of Cramer, Haber, Me- ...
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Amended Memorandum of Decision on Appropriate Interest Rate to an Overse-cured Creditor in a Chapter 12 Family Farmer Case This contested matter is before 1 us on Bank’s objection to the interest rate Chapter *948 12 Debtors propose to pay on Bank’s over-secured claim. We hold that neither of the two rates advanced by the contending parties appropriately compensate...
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*238 ORDER RE TERMINATION OF ARBITRATION I. INTRODUCTION This adversary proceeding involves a failed arbitration attempt arising out of a dispute concerning the debtor’s purchase of securities. After more than 18 months since the entry of an order for arbitration, the parties have failed to begin their arbitration hearing. Consequently, the Court vacates the order referring ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon a Motion Pursuant to 11 U.S.C. § 1129(b) — Class 17 (Unsecured) (Doc. No. 106) filed by Debtors and a Confirmation Hearing held February 9, 1995. A hearing was held on the Motion, along with the confirmation hearing, on February 9, 1995. Upon hearing the evidence presented, the Court enters the following Findings of Fa...
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MEMORANDUM OPINION FACTS On February 21, 1995, this ease under chapter 11 of the Bankruptcy Code came before this Court for confirmation of the debtor in possession’s (“DIP”) plan of reorganization. Appearing before the Court were Robert Shields, attorney for the DIP, David Evans, attorney for BancBoston, Harvey Wachsman, attorney for the unsecured creditors committee, Olin Brooks for the ban...
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MEMORANDUM This matter came before the Court upon the Trustee’s complaint to revoke the Debtors’ discharge pursuant to 11 U.S.C. § 727(e)(1). 1 The Court, having reviewed the pleadings, heard the evidence, and being otherwise fully advised finds that the trustee has not proved that the debtors obtained their discharge through fraud and, therefore, the complaint should be dismissed. FACTS ...
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This is an appeal from an order of the district court holding that a debt owed by Sammy G. Daily to the Federal Deposit Insurance Corporation (“FDIC”), as receiver for Indian Springs State Bank, was for money obtained by fraud and, therefore, not dis-chargeable in bankruptcy. We affirm. I Daily filed a petition for relief in the United States Bankruptcy Court for the District of Hawai...
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MEMORANDUM OPINION AND ORDER I thought I had written what I intended to be my last opinion; however, by the necessity of this one, we are reminded the law is fresh everyday. New ground always abound, and we as judges find challenge at every session. Here the debtor, Tracy Marie Gibson, filed a dischargeability complaint against the Commonwealth of Virginia’s State Education Assis...
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DECISION AND ORDER This matter comes before the Court on the Debtor’s objection to the claim of James C. Agnew for post-petition interest and attorneys’ fees. A hearing was held on October 11, 1994, and a briefing schedule was set to allow the parties to further argue their positions to the Court. The matter has been briefed by both parties and is now ripe for decision. ISSUES Two issues ar...
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