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All Reporters → collier-bankr-cas-2d → Volume 35

Opinions in collier-bankr-cas-2d Volume 35

DECISION REGARDING MOTION TO DISMISS I. Background Joseph P. Callanan, the debtor in this Chapter 13 case (the “Debtor”), filed this adversary proceeding against International Fidelity Insurance Company (the “Defendant”). His complaint is entitled Complaint to Avoid Lien as Preferential Transfers (the “Complaint”). The Defendant moved to dismiss arguing that the Debtor lacks standing to b...
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190 B.R. 471 (1995) In the Matter of M4 ENTERPRISES, INC., Debtor. Bankruptcy No. A95-65456-WHD. United States Bankruptcy Court, N.D. Georgia, Atlanta Division. December 27, 1995. *472 *473 Paul H. Anderson, Jr., Trustee, Burton & Anderson, Atlanta, Georgia. Mark Marani, Small, White & Marani, P.C., Atlanta, Georgia, for Harvey Mays. ORDER W. HOMER DRAKE, Jr., Bankruptcy Judge. This matt...
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ORDER This matter comes before the Court on an Objection to Proof of Claim by Archibald Bernard (hereinafter “the Debtor”). The Debtor brings this objection in opposition to the bankruptcy claim of World Savings and Loan (hereinafter “World”) and, as such, the matter forms a core proceeding for the Court’s determination. See 28 U.S.C. § 157(b)(2)(A), (B) & (O). The Court ba...
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78 F.3d 1456 64 USLW 2627 In re CONEJO ENTERPRISES, INC., Debtor.BENEDOR CORPORATION, Plaintiff-Appellee,v.CONEJO ENTERPRISES, INC., Defendant-Appellant,Ronald L. Durkin, Chapter 11 Trustee, on behalf of ConejoEnterprises, Inc., Appellant.In re CONEJO ENTERPRISES, INC., Debtor.BENEDOR CORPORATION, Plaintiff-Appellee,v.CONEJO ENTERPRISES, INC., Defendant,andWestern Waste Industries, Appella...
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MEMORANDUM OF DECISION On the record in open court on November 14, 1995, this Court ruled that for purposes of cramming down a Chapter 11 Plan under 11 U.S.C. § 1129(b) over the objection of a creditor who holds a lien on the Debtor’s real estate, the Debtor is not entitled to subtract the hypothetical costs of a hypothetical sale 1 from the collateral’s fair market value for p...
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OPINION This matter comes before the Court upon the Motion of the Debtor, Ethel G. Smiley, to enjoin Sharon Savings Bank from transferring funds in her bank account to the Internal Revenue Service (“IRS”). At issue is whether the IRS’ post-petition demand for transfer of the Debtor’s funds pursuant to a prepetition notice of levy violates the automatic stay. A hearing on the Motion was held O...
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MEMORANDUM OF OPINION ON MOTION TO REJECT EXEC-UTORY CONTRACT THIS MATTER came on for hearing on the debtor’s Motion for Authorization to Reject Executory Contract in this yet to be confirmed Chapter 11 ease. The executory contract which the debtor seeks to reject is a franchise agreement between Kwik Kopy Corporation (“KKC”), franchisor, and the debtor, Printronics, Inc., franchisee....
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT THIS CAUSE came on for hearing with due notice on Motions for Summary Judgment; the first filed by both John Damon Shedd and his wife, Michelle Lisa Shedd (Debtors), and the second by the United States of America (Government), the Defendant named in the above-captioned adversary proceeding. The Debtors’ Complaint sought a determination by this Cou...
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190 B.R. 269 (1994) In re CROSSROADS MARKET, INC. Bankruptcy No. 93-12964. United States Bankruptcy Court, N.D. Mississippi. December 12, 1994. Doris C. Landon, Oxford, MS, for Crossroads Market, Inc. D. Ronald Musgrove, Smith and Musgrove, Batesville, MS, for Mechanics Bank. Kenneth H. Coghlan, Hickman, Goza & Gore, Oxford, MS, for Merchants & Farmers Bank. Ralph M. Dean, Assistant U.S. ...
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MEMORANDUM DECISION ON MOTION TO DISMISS COMPLAINT Herbert Construction Co., Inc. (“Herbert”) commenced this adversary proceeding against The Greater New York Savings Bank (the “Greater”) seeking to have the Greater’s mortgage lien subordinated to Herbert’s mechanic’s lien. Herbert maintains that its mechanic’s lien for construction work at the *87 building is entitled to...
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ORDER AND OPINION On March 27, 1995, the appellant filed a Notice of Appeal. The appeal contests the decision of the bankruptcy court granting the appellee’s Motion for Summary Judgment and denying the appellant’s Motion to Dismiss. On May 15, 1995, the appellant submitted his brief in support of his appeal. The appellee responded on May 26, 1995. On June 5, 1995, the appellant filed his repl...
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ORDER This ease is before the Court on Trustee Howard Jones’s appeal of the Bankruptcy Court’s August 23, 1994 Order. Jurisdiction is proper pursuant to 28 U.S.C § 158(a). I. BACKGROUND Clyde Lawayne Latta (“the Debtor”) filed a bankruptcy petition seeking a Chapter 7 discharge. Howard Jones was appointed trustee of the bankruptcy estate. This appeal stems from the Bankruptcy Co...
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ENTRY This appeal arises from an order entered by the Bankruptcy Court on September 19, 1994, which sustained Trustee’s Objection To Property Claimed As Exempt and overruled Debtors’ Motion To Strike Trustee’s Objection To Entireties Property Exemption. This Court has appellate jurisdiction pursuant to 28 U.S.C. § 158(a). In reviewing the Bankruptcy Court’s decision, this Court revie...
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OPINION /. Appellants, Mir Kazem Kashani and Habi-beh S. Kashani (“Debtors” or “Appellants”), appearing pro se, 2 appeal from an order entered March 30, 1994 by the Honorable John J. Hargrove, of the United States Bankruptcy Court for the Southern District of California, which denied the Appellants’ request to sue the Chapter 11 Trustee, Radmila A. Fulton (“Tr...
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OPINION In this case, a state taxing authority has challenged the jurisdiction of the bankruptcy court to abrogate the state’s sovereign immunity by rendering a money judgment against it. The agency made a demand upon an escrow company for payment of taxes owed by the debtor’s partner, and was paid approximately $69,000 from estate funds. The Chapter 7 1 trustee sued for re...
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190 B.R. 842 (1996) In re Michael R. SPARKS, Debtor. Bankruptcy No. 92 B 21692. United States Bankruptcy Court, N.D. Illinois, Eastern Division. January 18, 1996. David A. Weininger, Chicago, IL. Mitchell M. Iseberg, Chicago, IL. Jeffrey Hynes, Adelman, Adelman & Murray, Milwaukee, WI. David J. Lynam, Barrington, IL. Cynthia G. Swiger, Chicago, IL. Michael L. Gesas, Gesas, Pilati & Gesas,...
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ORDER ON MOTION FOR RECONSIDERATION On October 23, 1995, a confirmation hearing was held in this case. At the hearing the Court considered the objection to confirmation filed by Federal Credit Company (“Federal”). At the conclusion of the hearing the Court announced a decision which provided certain confirmation options to the Debtor to satisfy the claim of Federal. Following the *965 annou...
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MEMORANDUM OPINION 1 This dispute centers on the bankruptcy court’s power to hear and determine competing rights to a statutory trust. Congress created the trust by amending the Perishable Agricultural Commodities Act (“PACA”), a statute that has regulated merchants, dealers, and brokers of perishable commodities in interstate commerce since its enactment in 1930. 2 ...
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190 B.R. 796 (1995) In re ATLAS MACHINE AND IRON WORKS, INC., Alleged Debtor. Bankruptcy No. 91-11448-AB. United States Bankruptcy Court, E.D. Virginia, Alexandria Division. November 30, 1995. *797 *798 H. Jason Gold, Gold & Stanley, P.C., Alexandria, Virginia, for debtor. James F. Hibey, Verner, Liipfert, Bernhard, McPherson & Hand, McLean, Virginia. MEMORANDUM OPINION MARTIN V.B. BOSTE...
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MEMORANDUM OF DECISION Before the Court is the Debtor’s Objection to Claim of Yale Fall River Trust. The issue presented is the proper interpretation of 11 U.S.C. § 502(b)(6). 1 Specifically, the Court must determine whether postpetition rentals received by a landlord should be deducted from the landlord’s overall claim for damages or from the statutory cap imposed by § 502(b)(6). The quest...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW These proceedings are before the Court upon the complaint objecting to discharge pursuant to 11 U.S.C. §§ 727(a)(2)(A) and 727(a)(4)(A) filed by Trustee Gordon P. Jones (Trustee), and the complaint objecting to discharge and seeking exception from discharge pursuant to 11 U.S.C. §§ 727(a)(4)(A), 523(a)(5), and 523(a)(15) filed by Theresa Phillips (Forme...
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67 F.3d 1128 76 A.F.T.R.2d 95-7124, 64 USLW 2274,19 Employee Benefits Cas. 2065 In re Neil SOLOMON, M.D., Debtor.Neil SOLOMON, Plaintiff-Appellant,v.Ellen W. COSBY, Chapter 13 Trustee; Jane Coe; Mary Doe;Jane Roe; John Roe, Defendants-Appellees.In re Neil SOLOMON, M.D., Debtor.Neil SOLOMON, Plaintiff-Appellee,v.Ellen W. COSBY, Chapter 13 Trustee, Defendant-Appellant,v.Jane COE; Mary Do...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS CAUSE came on for consideration upon Plaintiffs Motion for Summary Judgment. This Court has considered all arguments and evidence consistent with a ruling on a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986) (holding the standard of proof in sum *53 mary judgment ruling...
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MEMORANDUM OPINION The Court is confronted with motions for summary judgment filed by both plaintiffs in the above cases and by defendants. For the reasons that follow, both parties’ motions will be denied and the adversary proceedings dismissed. Facts A brief summary of the facts of these cases is as follows: 1. On 12/11/92, Samuel and James Jef-fries filed Chapter 11 petitions in Bank...
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DECISION AND ORDER DISMISSING COMPLAINT This matter is before the court upon the defendant’s motion to dismiss the plaintiffs complaint under Fed.R.Civ.P. 12(b)(6). The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference *833entered in this district. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(H)— proceedings to determine, avoid, or recover fra...
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MEMORANDUM OF DECISION Debtor John Pavich brought this motion for summary judgment in this adversary proceeding to determine the order and priority of liens and to determine the distribution of the remaining funds on hand from the sale of the Debtor’s residence. Plaintiffs Leslie and Elaine Bernstein joined in this motion. The Internal Revenue Service (“IRS”) filed a separate motion for s...
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OPINION AND ORDER [Nature of Proceeding: Trustee’s Objection to Exemptions] The Trustee has filed an objection to the exemption claim of the Debtors. The Debtors have attempted to exempt a tax deferred annuity contract with the Variable Annuity Life Insurance Company (“VALIC”) with a value, as of filing, of Twenty-Four Thousand Five Hundred Seventy-Nine and 67/100 Dollars ($24,579.67). Th...
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73 F.3d 258 77 A.F.T.R.2d 96-460, 64 USLW 2511, Bankr.L. Rep. P 76,750,19 Employee Benefits Cas. 2481,96 Cal. Daily Op. Serv. 270,96 Daily Journal D.A.R. 417,Pens. Plan Guide P 23916U In re Wilker S. & Janice M. CONNER, Debtor.John BARKLEY, Trustee, Appellant,v.Wilker S. CONNER; Janice M. Conner; Orthopedic Clinic 401KProfit Sharing Plan and Trust Agreement; PuregroCompany, Appelle...
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OPINION AND ORDER CONVERTING CHAPTER 11 CASE TO CASE UNDER CHAPTER 7 This matter came on for hearing on the Court’s own motion as to why the chapter 11 case of ABEPP Acquisition Corp., dba Abbott & Company (the “DIP”) should not be converted to a case under chapter 7 or dismissed pursuant to § 1112(b). Upon consideration of the evidence adduced at the January 10, 1996 hearing on this matt...
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DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter comes before the court as an adversary proceeding brought by the Chapter 7 Trustee (“Plaintiff’ or “Trustee”) of the estate of Robert B. Smith (“Debtor”) to recover a preferential transfer pursuant to section 547 of the Bankruptcy Code (“Code”). The defendant in this case, Valerie Schretter (“Defendant”), seeks an order for summary j...
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OPINION AND ORDER The facts of this litigation are not complex. Winifred F. Wood filed for bankruptcy under Chapter 11 of the United States Bankruptcy Code on August 4, 1993. On the date of filing, she was the owner of a residential parcel of real estate situate at 109 East Ann Street, Milford, Pennsylvania, which her appraiser valued at One Hundred Seventy-Six Thousand Dollars ($176,...
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74 F.3d 910 64 USLW 2511, 28 Bankr.Ct.Dec. 608, Bankr.L. Rep. P 76,761,96 Cal. Daily Op. Serv. 419,96 Daily Journal D.A.R. 693 MSR EXPLORATION, LTD., a Canadian corporation;Gypsy-Highview Gathering System, Inc., a Montanacorporation, Plaintiffs-Appellants,v.MERIDIAN OIL, INC.; Fina Oil & Chemical Co., Inc.;Blackleaf Partners, Inc.; Blackleaf Gas Assocs.,Defendants-Appellees. No....
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Richard D. Myers (Trustee), trustee of the bankruptcy estate of Rine & Rine Auctioneers, Inc. (Debtor), appeals from an order entered in the United States District Court for the District of Nebraska, affirming the bankruptcy court’s judgment in favor of Douglas County Bank & Trust Company (Bank) in an adversary proceeding brought by the Trustee pursuant to 11 U.S.C. § 547, alleging that a payment ...
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MEMORANDUM OPINION This case involves the chapter 13 debtor lessor’s rejection of a lease pursuant to 11 U.S.C. § 365(a) and the consequences of the rejection to the lessee. The debtor filed a complaint to require the defendant lessee to pay rent and also filed a motion objecting to the defendant’s proof of claim. Trial on the complaint and motion was held on October 11, 1995, at which ti...
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OPINION An assignee of claims against the debtor filed a complaint objecting to the debtor’s discharge. The bankruptcy court entered judgment in favor of the objecting party. The debtor appeals on the grounds that an assignee of claims lacks standing to object to discharge. We AFFIRM. I. FACTS Peter Y. Lee (“Lee”) and Kenneth M. Ota (“Ota”) formed a general partnership (“par...
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MEMORANDUM-DECISION AND ORDER The instant contested matter is before the court on the motion by Capital Communications Federal Credit Union (“Capital”) for relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1) and (2) (11 U.S.C. §§ 101-1330 hereinafter the “Code”). This matter is within the court’s core jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(A), (G). FACTS On May 3, 1995 ...
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*234 MEMORANDUM DECISION The senior secured creditor contends that this is a “single asset real estate” case and that the debtor must be held to the requirements of newly enacted Bankruptcy Code § 362(d)(3). This Court has jurisdiction to determine this matter pursuant to 28 U.S.C. § 1334 and General Order No. 312-D of the United States District Court for the Southern Distri...
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MEMORANDUM OPINION ON REPORT OF SETTLEMENT AND EMERGENCY MOTION FOR RELIEF FROM STAY CAME ON for hearing on the 13th day of December, 1995, the Report of Settlement and Emergency Motion for Relief from Stay (“Motion”) filed by (1) Daniel Michael Kadin-go, by and through his next friend, Antonio Kadingo; (2) Jennifer Kadingo, individually; *665 and (3) Antonio Kadingo, ind...
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*825 FINDINGS OF FACT AND CONCLUSIONS OF LAW Defendants Marc Tomlinson, Vearl Sneed, Mats Larsson, and Larry Neese (collectively, “Defendants”) filed proofs of claim in the bankruptcy case of Basin Resources Corporation (“Debtor”). John James Jenkins, Chapter 7 Trustee (“Trustee”) for the Debt- or, filed this proceeding to subordinate the claims of these Defendants, pursuant ...
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*393 MEMORANDUM OPINION ON COMPLAINT FOR INJUNCTIVE RELIEF AND FOR ENFORCEMENT OF AUTOMATIC STAY The Chapter 13 debtors, Abraham and Edna Friend, filed their present chapter 13 case on August 11, 1995. This was their fourth filing, and the third chapter 13 case, number 94-21606, contained an Order, known by bankruptcy practitioners as a “drop dead” Order, entered on March 29, 1994. The “drop ...
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MEMORANDUM OPINION This matter comes before the Court on confirmation of Blake and Kimberly Thompson’s' (collectively “Debtors”) Chapter 13 plan of reorganization. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(L). The Court publishes the following findings of fact and conclusions of law in anticipation of a future hearing to be conducted in accordance with this mem...
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MEMORANDUM OF DECISION The City of Riverside (“Riverside” or the “City”) filed a motion for an order determining that the police and regulatory power exception to the automatic stay applies to the City’s review and termination of its solid waste contracts. Debtor National Environmental Waste Corporation (“Newco”) opposed the motion on the ground that the City’s action was void and not sub...
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OPINION INTRODUCTION This matter comes before the court by way of motion of debtors, Joel and Paulette Eastwood, to bifurcate the claim of Metmor Financial, Inc. (“Metmor”) into secured and unsecured components pursuant to section 506(a) of the Bankruptcy Code and to strip down 1 the lien of Metmor to the fair market value of debtors’ property. Metmor opposes debto...
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OPINION After confirmation of a chapter 11 plan proposing to pay in full, with interest from confirmation, taxes which are nondischargeable under section 523(a)(1), is there a surviving debt for postpetition, preconfirmation interest? I hold this “gap” interest debt does not survive. Gary and Charlotte Heisson, husband and wife (the “Debtors”), filed a joint chapter 11 petition o...
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ORDER This matter was heard on November 29, 1995, on motion of Viking Associates, L.L.C., for an order: vacating a prior order that directed the clerk not to transfer certain claims on the claims register to Viking Associates, as assignee; determining that the assignments are valid and enforceable; and, permitting Viking to enforce the claims in their face amounts. Trustee Wayne Drewes and U.S....
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Adversary proceeding relates to the bankruptcy proceeding of defendant Irene Vernon (“Defendant” or “Debtor”) filed by her under Chapter 7 of the Bankruptcy Code, Title 11 U.S.C. The Plaintiff law firm seeks to have her debt due to it found non-dischargeable under 11 U.S.C. § 523(a)(2)(A). Following trial, both sides having rested and ...
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OPINION In this action, debtor Vanette McConahey seeks a determination that prepetition tax liabilities owing to the United States of America and the State of Illinois were satisfied by her completion of payments under a confirmed Chapter 11 plan of reorganization. Both the United States and the State of Illinois filed proofs of claim in the debtor’s Chapter 11 case, and the debtor’s plan pro...
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518 U.S. 213 (1996) UNITED STATES v. REORGANIZED CF&I FABRICATORS OF UTAH, INC., et al. No. 95-325. United States Supreme Court. Argued March 25, 1996. Decided June 20, 1996. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT *214 Souter, J., delivered the opinion for a unanimous Court with respect to Part III, the opinion of the Court with respect to Parts I, II—A, II—B, ...
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ORDER AND OPINION This matter is before the Court on the Government’s motion to reconsider the earlier decision of the Court with respect to the claim for internal revenue taxes, in which this Court held that Amtron’s patents, which the Trustee had recovered through a fraudulent conveyance action, were not subject to a valid prepetition federal tax lien. The basis for the motion is th...
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*865 MEMORANDUM OPINION This matter came before the court on the United States Trustee’s objection to fees generated by the debtor’s attorney. The U.S. Trustee takes the position that the Bankruptcy Code as amended by the Bankruptcy Reform Act of 1994 does not authorize the payment of these fees in a Chapter 7 case. The court may only award fees to the debtor’s attorney to t...
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MEMORANDUM OPINION AND ORDER GRANTING RELIANT’S MOTION TO MARSHAL ASSETS The Court conducted a hearing on December 5, 1995, on The Rehant Group Limited Partnership’s (“Rehant”) Motion to Apply the Doctrine of Marshahng of Assets Against the FDIC, as Receiver for First American Bank and Trust as to the Rents and Profits Held by the Trustee and to Transfer Lien and to Require Disbursements of F...
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MEMORANDUM OPINION This case presents the question of whether the Court, in an involuntary proceeding under § 303, should retain jurisdiction to resolve a dispute between junior and senior mortgagees over the entrepreneurial opportunity to redevelop the Debtor’s sole asset, an apartment building. Resolution of the dispute will not affect either the Debtor or the estate, since the Debtor h...
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MEMORANDUM OPINION This matter comes on to be heard upon Debtor’s Motion to Disallow Claim of the Internal Revenue Service (“IRS”) pursuant to 11 U.S.C. § 502(a). A trial of the matter was held on July 13, and July 28, 1995. At the conclusion of the trial, the Court took the matter under advisement. The parties have submitted post-trial briefs on the issues. After consideration of the evidence pre...
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MEMORANDUM OF DECISION This closed Chapter 13 case is before the court on the motion of the United States of America to reopen the ease and vacate the debtor’s discharge. The government seeks this relief on the ground that the debtor’s Chapter 13 plan failed to provide for full payment of late-filed priority claims. As set forth below, the motion must be denied because it constitutes an i...
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Order on Debtor’s Objection to Proof of Claim CAME ON for consideration the objection to the claim of Scurlock Permian Corporation (“Scurlock”) by the Debtor El Paso Refining, Inc. (“INC.”). Scurlock’s claim is based upon an unconditional continuing guaranty (the “Guaranty”) executed by the Debtor in favor of Scurlock’s predecessor in interest, Permian Operating Limited Partnership. ...
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MEMORANDUM OF OPINION AND ORDER The above-styled Chapter 11 bankruptcy case is before the Court on consideration of approval of the Debtor’s Disclosure Statement. A hearing was held on December 5, 1995. Objections to the Disclosure Statement were filed by Equitable Life Insurance Company of Iowa (“Equitable”) and the United States Trustee. At the hearing, the issue of the implications of th...
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ORDER DENYING CONFIRMATION TO CHAPTER 13 PLANS BACKGROUND In each of these cases, Memorial Bank, Oklahoma City, Oklahoma (hereafter, “Bank”), is a secured creditor with a perfected security interest in a vehicle which debtors seek to retain by making payments under a plan proposed under Chapter 13 of the Bankruptcy Code. 1 In each case, it is proposed that interest on ...
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MEMORANDUM Hearing was held on Trustee’s Motion to Disallow Tax Claims; Objection by Department of Motor Vehicles, State of Nebraska; Objection by John Leed; Resistance by State of Nebraska, Department of Revenue; Opposition by Iowa Department of Revenue and Finance. Appearances: Robert Yates, Attorney for trustee; Denise Dengler, Attorney for Iowa Department of Revenue; James Woodruf...
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MEMORANDUM OPINION THIS MATTER comes before the court upon the defendants’ motion for judgment on the pleadings made orally at a pretrial conference held herein on May 23, 1995. As a result of defendants’ motion, this court established a briefing schedule. The last brief was filed on July 12, 1995 and this matter is now ripe for decision. BACKGROUND This is an adversary proceedi...
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We affirm the bankruptcy judge’s sua sponte decision to appoint a Chapter 11 trustee. Facts Fukutomi owned Bibo, Inc. which owned an apartment complex. He operated the corporation as debtor in possession, after Bibo filed for relief under Chapter 11 of the Bankruptcy Code. Fukutomi also was a principal in at least one other apartment complex. This case arose out of proceedings on Fu-kutomi’...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court on Plaintiff’s Complaint to Determine Dis-chargeability of Debt. A trial was held in which the parties were afforded the opportunity to present evidence and make arguments they wished the Court to consider in reaching its Decision. The Court reviewed the written arguments of counsel, exhibits, relevant statutory and cas...
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MEMORANDUM OPINION Pending before the Court are Deere Credit, Inc.’s (Deere), (1) Motion for Relief From Stay filed pursuant to 11 U.S.C. §§ 362(d)(1) and (d)(2); and (2) Objection to Confirmation filed pursuant to 11 U.S.C. § 1325(a)(5)(B)(ii) in the above-styled case. The Motion and Objection were filed on June 27, 1995, and the Court held a hearing on the Motion and Objection on Ju...
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ORDER GRANTING MOTION TO COMPEL This ease came on for hearing on February 28 and May 9,1995, on the Motion of Barnett Bank of Central Florida, N.A. (the “Creditor”) to Compel Debtors to Reaffirm, Redeem, or Surrender Collateral, and to Defer Entry of the Discharge Pending Consideration of This Motion (the “Motion”). The creditor also filed a Memorandum in Support of the Motion. The Motion req...
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This case involves a security agreement pursuant to which the debtor granted the creditor a security interest in the debtor’s hotel and in all rents, issues and profits associated with its operation. After the debtor filed a voluntary petition under Chapter 11 of the Bankruptcy Code, the creditor relied upon its prepetition security interest to seek accounting of the postpetition hotel revenues. A...
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This case presents a straightforward question which has given rise to a split in the federal circuit courts: in bankruptcy, does the Bankruptcy Code’s definition of when the transfer is perfected trump state law as to when a transfer is perfected? We answer the question affirmatively, as has the Fifth Circuit, Matter of Hamilton, 892 F.2d 1230 (5th Cir.1990) but contrary to In re Hesser, 98...
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This appeal arises from the District Court’s order affirming the Bankruptcy Court’s decision to grant a motion to dismiss for failure to state a claim upon which relief can be granted. Appellants contend that the District Court erroneously affirmed the Bankruptcy Court’s dismissal by imposing upon them the burden of proving facts in response to a motion addressing only the sufficiency of the co...
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Appellant Edward Molitor appeals the district court’s 1 affirmance of the bankruptcy court’s 2 order converting his Chapter 13 case to a Chapter 7 case. We have jurisdiction pursuant to 28 U.S.C. § 158(d) (1988), and we affirm. I. BACKGROUND This appeal involves Molitor’s manipulation of the bankruptcy code in order to retain possession of a three-bedroom home purchased originally from Jo...
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MEMORANDUM OPINION On November 13, 1995, Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., Merrill Lynch Government Securities, Inc., Merrill Lynch Capital Services, Inc., and Merrill Lynch Money Markets, Inc. (collectively “Merrill Lynch”) filed a motion to dismiss (the “Motion”) the second amended complaint (the “Complaint”) filed by the County of Orange (the “Coun...
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The issue in this case is whether a $290,-000 payment to Dayle Futoran by her ex-husband Robert Futoran in exchange for the cancellation of their marital termination agreement was a preference recoverable by Max Rush, the Chapter 7 trustee of Robert’s estate. BACKGROUND The Futorans entered into a marital termination agreement that became effective on January 1,1987. The husband a...
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Opinion by Judge HUG. This case requires us to define the authority of a bankruptcy court to sanction an individual that is not a party, an attorney, or a signatory to any documents filed before the court. Craig Caldwell appeals the district court’s order affirming the bankruptcy court’s sanctions against him in the Chapter 11 bankruptcy proceedings of debtor Rainbow Magazine, Inc. The Ba...
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This is a chapter 11 bankruptcy case. The debtor did not timely list a creditor known to him, and the reorganization plan was confirmed before the creditor attacked it. The question is whether the creditor is bound by the confirmation of the plan. FACTS Mr. Levin and Maya Construction agreed that Maya would place fill dirt excavated elsewhere on Levin’s land. The soil, excavated a...
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78 F.3d 1169 64 USLW 2611, 28 Bankr.Ct.Dec. 933, Bankr.L. Rep. P 76,970 In the Matter of SUPERIOR TOY & MANUFACTURING COMPANY,INCORPORATED, also known as Carter ManufacturingCompany, an Illinois Corporation, Debtor.Appeal of Catherine STEEGE, not individually but as Trusteefor Superior Toy & Manufacturing Company, Incorporated. No. 95-2172. United States Court of Appeals,S...
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76 F.3d 1070 64 USLW 2543, 34 Fed.R.Serv.3d 1267,Bankr. L. Rep. P 76,955 In re John H. GLEDHILL and Gloria K. Gledhill, Debtors,STATE BANK OF SOUTHERN UTAH, Plaintiff-Appellant,v.John H. GLEDHILL and Gloria K. Gledhill, Defendants-Appellees. No. 94-4241. United States Court of Appeals,Tenth Circuit. Feb. 2, 1996. Steven W. Call (Steven T. Waterman with him on the br...
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DECISION ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT Two questions are presented on these cross-motions for partial summary judgment regarding the “subsequent new value” defense to an otherwise avoidable transfer: (i) does the continued provision of insurance coverage constitute new value and (ii) if it does, is the defense unavailable nonetheless because the cost of that coverage was s...
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The Caldor Corporation (“Caldor”) has moved pursuant to §§ 363(b)(1), 1107 and *184 1108 of the Bankruptcy Code (“Code”) for an order authorizing it to enter into a lease (“Westfield Lease”) of a building located in Westfield, Massachusetts (‘Westfield Facility”) for use as a regional distribution center. The Official Creditors’ Committee and the Official Committee of Equity Holder...
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Although bankruptcy is normally viewed as a process through which a debtor obtains relief from pre-petition obligations and gets a fresh start in life (financially, at least), things are not always that simple. This case presents a wrinkle that occurs when, during the bankruptcy proceeding, a creditor makes an offer to a debtor to reaffirm a pre-petition debt, in exchange for certain benefits. ...
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79 F.3d 579 64 USLW 2583, 28 Bankr.Ct.Dec. 1073,Bankr. L. Rep. P 76,836 In the Matter of ENVIRODYNE INDUSTRIES, INC., Debtor-Appellee.Appeals of Seymour J. Ryckman, Illinois Department ofFinancial Institutions, State of California, Jerry M.Friedman, as custodian for Julie, Jennifer and MarkFriedman, James Null, and David B. Bloom. Nos. 95-2733, 95-2734, 95-2735, and 95-2754. Unite...
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78 F.3d 110 64 USLW 2627, 28 Bankr.Ct.Dec. 981, Bankr.L. Rep. P 76,994 Susan JUDD, Appellant,v.Lawrence WOLFE, Susan Judd, Debtor. No. 95-5141. United States Court of Appeals,Third Circuit. Argued Jan. 25, 1996.Decided March 11, 1996. Appeal from the United States District Court for the District of New Jersey (D.C.Civ. No. 94-cv-05574). Joseph M. Pinto (argued...
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*921 MEMORANDUM OPINION This matter comes before the Court on the Motion of Sears, Roebuck and Co. (“Sears”) to Compel and Extend the Time Within Which To File An Adversary Proceedings [sic] (“Motion”). 1 Attorney Eugene R. Pigat-ti represents Sears. The Debtors, James Peter Sr. and Sharon L. Irvine, are represented by Attorney Thomas H. Senneff, who wisely conside...
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MEMORANDUM OF DECISION The Internal Revenue Service (“the Service”) seeks retroactive relief from the automatic stay under 11 U.S.C. § 362(d) in order to validate a tax assessment made in violation of the automatic stay. A hearing was held and the matter was taken under submission. For reasons set forth below, the court will deny the motion. FACTUAL BACKGROUND Prior to filing for bankrupt...
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MEMORANDUM OPINION Blue Cross and Blue Shield of Georgia, Inc., Defendant, filed on December 18, 1995, *616 a motion for summary judgment. The Official Creditors’ Committee of Lummus Industries, Inc. on Behalf of Lummus Industries, Inc., Plaintiff, filed on December 18, 1995, a motion for partial summary judgment. The Court, having considered the record, the stipulation o...
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MEMORANDUM OF DECISION This matter came before the Court on the Trustee’s complaint pursuant to 11 U.S.C. § 363(h) to sell property free and clear of the interests of Debtor, Henry T. Hidler, and his wife Linda A. Hidler. 1 The complaint raises two issues: (1) whether Henry Hidler is entitled to a homestead exemption in the property and (2) whether the Trustee may sell prop...
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MEMORANDUM In this adversary proceeding Plaintiff, a Chapter 7 debtor, seeks summary judgment that his child support related obligation to the defendant, Kansas Department of Social and Rehabilitation Services (“Kansas DSRS” or “the agency”) is not excepted from discharge under 11 U.S.C. § 523(a)(5)(A). I conclude that the claim of Kansas DSRS does not fall within section 523(a)(5), and is di...
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DECISIONS ON (i) DEBTORS’ MOTION FOR AN ORDER APPROVING REJECTION OF JOHN MARCHIONE’S EMPLOYMENT AGREEMENT and (ii) APPLICATION BY JOHN MAR-CHIONE FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE CLAIM The matters before the Court are (i) the Debtors’ motion for an order pursuant to section 365 of the Bankruptcy Code and Federal Rule of Bankruptcy Procedure 6006 1 approving thei...
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MEMORANDUM OPINION AND ORDER THESE MATTERS come before the Court under Fed.R.Bankr.P. 4001(d) for consideration of unopposed motions by Inca Group, Ltd. and Gallegos Research Group, Corporation (hereinafter referred to as Inca, Gallegos or Debtor(s)) to approve three agreements relating to relief from automatic stay, use of cash collateral and adequate protection (hereinafter Agreements)....
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OPINION The chapter 7 trustee of the debtors’ estate appeals the bankruptcy court’s ruling denying in part a complaint to avoid as preferential transfers two deeds of trust given to Rivera. For the reasons set forth below, the judgment is affirmed. I. FACTS Approximately seven months before the Marinos’ bankruptcy was filed, Kenneth Rivera and the Rivera Trust lent $2.5 million ...
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OPINION AND ORDER This is an action by plaintiff The Hunnicutt Company, Inc. (“Hunnicutt”) against defendant The TJX Companies, Inc. (“TJX”) asserting state law claims for money damages arising from unpaid rent and property damage. Hunnicutt is the lessor of certain commercial property in Atlanta, Georgia. TJX is the guarantor on the lease. The tenant, Ames Department Stores, Inc. (“A...
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MEMORANDUM AND ORDER Debtor-appellant Joseph A. Corio appeals from an order of the United States Bankruptcy Court for the Eastern District of New York, Robert J. Hall, Bankruptcy Judge, dated February 1, 1995, denying his motion pursuant to 11 U.S.C. § 522(f)(1) to avoid *499 judicial liens as impairing his New York homestead exemption. Judgment creditor-appellee Star Vid...
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80 F.3d 906 64 USLW 2632, 28 Bankr.Ct.Dec. 1117,Bankr. L. Rep. P 76,993 In re John A. ANDREWS, Debtor.John A. ANDREWS, Plaintiff-Appellant,v.The RIGGS NATIONAL BANK OF WASHINGTON, D.C., Claimant-Appellee,Richard G. HALL, Trustee-Appellee,v.FIRST AMERICAN BANK OF VIRGINIA, Claimant. No. 93-2095. United States Court of Appeals,Fourth Circuit. Argued May 13, 1994.Decided April 1,...
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MEMORANDUM DECISION In this diversity action, plaintiff 641 Avenue of the Americas Limited Partnership (“plaintiff”) seeks a declaration that it has a perfected security interest in rents that were originally paid to defendant 641 Associates, Ltd. (“Associates”) and that are now held in escrow by the Chapter 7 Trustee for 641 Associates, Ltd., Mitchell W. Miller (the “Trustee”). Plain...
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DECISION This matter is before the court following trial of the issues raised by plaintiffs complaint as to the defendant, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. The complaint has been filed pursuant to § 542 of the United States Bankruptcy Code. By it, the trustee seeks the sum of $125,000.00 that Carlton, Fields held in its trust account on and after the date of the p...
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MEMORANDUM This case is before the court upon the Amended and Restated Motion for Authority to Pay Certain Taxes filed by the Krystal Company, the debtor in this Chapter 11 case. The motion seeks permission of the court to pay in due course the real estate taxes that Krystal is obligated to pay under the terms of the numerous and various nonresidential real property leases to which it...
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DECISION ON THE MOTION TO IMPOSE A CHARGING LIEN Donovan Leisure Newton & Irvine, a law firm, moves for an order fixing and imposing a charging lien on any proceeds or property due Jennifer Puddefoot Gucci under a proposed stipulation of settlement dated October 27, 1995 and for other relief which may be proper pursuant to 11 U.S.C. § 105(a) and Federal Rules of Bankruptcy Procedure 2...
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ORDER GRANTING TRUSTEE’S MOTION TO SET ASIDE TRANSFER AND DETERMINE VALIDITY, PRIORITY AND EXTENT OF LIEN This matter is before the Court on the complaint filed by Gary D. Barnes, the Chapter 7 Trustee, to set aside transfer and determine validity, priority and extent of hen. FACTS Daniel Dale Ross, the debtor, entered into a retail installment contract with General Moto...
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194 B.R. 488 (1996) In re Franklyn C. LIMBAUGH, Laurie A. Limbaugh, Debtors. Bankruptcy No. 395-35375psh13. United States Bankruptcy Court, D. Oregon. April 3, 1996. *489 Todd Trierweiler, Portland, OR, for debtors. OPINION POLLY S. HIGDON, Bankruptcy Judge. This matter came before the court for confirmation of the debtors' Chapter 13 plan. In their plan the debtors have divided the claims of un...
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MEMORANDUM OPINION ON MOTION TO COMPEL PAYMENT OF POST-PETITION LEASE OBLIGATIONS Came before the Court for consideration on the 29th day of January, 1996, the Motion to Compel Payment of Post>-Petition Lease Obligations under 11 U.S.C. 365(d)(3) (“Motion”) filed by Trammell Crow Company and Petula Associates, Ltd. (Collectively, “Petula”) and the Response to the Motion (“Response”) f...
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AMENDED MEMORANDUM DECISION The United States Trustee is asking the court to deny the final application for compensation and reimbursement of expenses filed by the law firm of Kravit, Gass & Weber, S.C. (KGW), counsel for Frank Pio Crivello as Chapter 11 debtor-in-possession. *464 The U.S. Trustee objects to KGW’s application on multiple grounds, including the law firm’s inel...
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81 F.3d 103 28 Bankr.Ct.Dec. 1134, Bankr. L. Rep. P 76,951,96 Cal. Daily Op. Serv. 2326,96 Daily Journal D.A.R. 3915 In re LAKESHORE VILLAGE RESORT, LTD., Debtor.Linda E. STANLEY, United States Trustee for Region 17, Appellant,v.CROSSLAND, CROSSLAND, CHAMBERS, MacARTHUR & LASTRETO, Appellee. No. 94-16365. United States Court of Appeals,Ninth Circuit. Argued and Submitted D...
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The debtor-appellant, FedPak Systems, Inc. (“FedPak”), challenges the district court’s decision to vacate an order of the bankruptcy court for lack of jurisdiction. We hold that because FedPak did not have standing to seek the order, the bankruptcy court lacked jurisdiction as a matter of constitutional law. Additionally, we hold that the proceeding initiated by FedPak fell outside the scope of...
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OPINION OVERVIEW Immediately after a jury verdict against her in a state court civil suit, the debtor recorded a deed of trust on her personal residence in favor of her mother which over-encumbered the property. She subsequently borrowed money from a third party, and secured the loan against the same property by subordinating her mother’s deed of trust. She filed a bankruptcy pet...
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MEMORANDUM OF DECISION Before the court are briefs filed by the United States in each of the above adversary proceedings, on behalf of its agency the Internal Revenue Service (IRS), supporting its claimed interest in certain proceeds of a state court partition sale. The First National Bank of Shelby (FNB), one of the defendants, filed a response to each brief which essentially supports th...
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81 F.3d 20 77 A.F.T.R.2d 96-1673, 64 USLW 2674,96-1 USTC P 50,181 In re Ralph E. TAYLOR, Debtor.Ralph E. Taylor, Appellant. No. 95-1500. United States Court of Appeals,Third Circuit. Argued Jan. 30, 1996.Decided April 3, 1996. On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C.Civ. 94-06521). Ronald L. Buckwalter, Judge. ...
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Debtors-appellants Eldridge and Linda Holloway appeal from a judgment of the United States District Court for the Northern District of Georgia affirming a decision of the Bankruptcy Court for the Northern District of Georgia. I. In October of 1991, appellee John Hancock Mutual Insurance Company obtained a judgment against Eldridge Holloway in the State Court of Cobb County. The judgment becam...
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DECISION ON TRUSTEE’S OBJECTION TO CLAIM OF WEST VIRGINIA WORKERS’ COMPENSATION FUND The Chapter 11 Successor Trustee (the “Trustee”) of Olga Coal Company (the “Debtor”) requests this court to determine *743 whether proofs of claim, filed by the State of West Virginia Workers’ Compensation Division (the “State” or the “Fund”), are entitled to administrative or tax priorit...
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MEMORANDUM ON DEBTORS’ OBJECTION TO CLAIM The court has before it an Objection to the Claim of Jefferson Financial Services, Inc. (Jefferson Financial) filed by the debtors on January 30, 1996, objecting to Jefferson Financial’s claim to the extent it seeks $300 in postpetition attorney fees. Jefferson Financial’s Proof of Claim filed January 4, 1996, for $4,409.39, which includes pri...
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ORDER DENYING TRUSTEE’S MOTION TO COMPEL DEBTOR TO UNDERGO PHYSICAL EXAMINATION THIS MATTER came before the Court on the 27th day of February, 1996, the date set for hearing on the Trustee’s Motion seeking to compel the Debtor to undergo a physical examination and, implicitly, to allow a policy of life insurance to be taken out insuring his life. The underlying facts are not in disput...
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DECISION ON TRUSTEE’S MOTION TO DISALLOW CLAIM OF X-RAY EQUIPMENT COMPANY I. INTRODUCTION Alan Nisselson, the Chapter 7 trustee (the “Trustee”) of Mid-Miami Diagnostics, LLP (the “Debtor”), has moved for an order disallowing and expunging the claim of X-Ray Equipment Company (“X-Ray”) on the grounds that the claim is tardily filed. X-Ray opposes the motion on the grounds that it ...
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*293 MEMORANDUM OF OPINION Fredda Dressier (“Fredda” or “plaintiff’) asserts that obligations owed her by her former spouse, Chapter 7 debtor Michael B. Dressier (“Michael” or “debtor”), are excepted from discharge under § 523(a)(5) and § 523(a)(15). For the reasons set forth below, I conclude that, although a substantial portion of the indebtedness survives discharge because it ...
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MEMORANDUM OF DECISION ON MOTION OF THE UNITED STATES FOR DECLARATION REGARDING RIGHT OF RECOUPMENT OR, IN THE ALTERNATIVE, FOR RELIEF FROM THE AUTOMATIC STAY OR ADEQUATE PROTECTION The United States of America, on behalf of its Department of Education, has moved for a declaration that it has a valid defense of recoupment to a claim asserted against it by the Debtor or, in the alterna...
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OPINION COMES NOW before the Court Kitty Hawk Charters, Inc.’s Motion to Terminate Debtor’s Exclusive Period in which to File and Obtain Acceptances of a Plan of Reorganization and Express One International, Inc.’s Motion to Extend Exclusivity Period Pursuant to 11 U.S.C. § 1121. Since both motions deal with the exclusivity period, the Court combined the motions for hearing. This opinion cons...
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ORDER Currently before the Court in this matter is the Motion for Relief from Final Judgment of the Board of Regents of the University System of Georgia (hereinafter “the University”). Through this Motion, the University asks the Court to find that circumstances of excusable neglect require it to vacate its Orders dated January 11, and 81, 1996, wherein it granted summary judgment and...
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MEMORANDUM OF DECISION AND ORDER THEREON This was an action to avoid alleged preferential transfers brought by Chapter 7 Trustee Samuel R. Biggs (the “Trustee”) on August 5, 1994. The defendant, Smith Barney, Inc., is the successor in interest to Lehman Brothers, Inc., formerly known as Shearson Lehman Brothers, Inc. (“Shearson”). Both Shearson and Smith Barney are stockbrokers. On April ...
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MEMORANDUM OPINION This matter is before the Court on the motion of Susan Cappuceilli (the “Debtor”) to quash service and vacate a default judgment previously entered in this adversary proceeding. The motion was filed pursuant to Fed. R.Civ.P. 60(b), made applicable to this proceeding by Fed.R.Bankr.P. 9024. The Debt- or makes no challenge to the subject matter jurisdiction of the Cou...
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MEMORANDUM This matter concerns the Amended Complaint to Determine Dischargeability filed on behalf of The North River Insurance Company (“Plaintiff’). The Court announced its determinations and orders from the bench after a trial on October 17, 1994. These determinations have been reduced to writing as a result of a request from persons affected by this ruling. This is a core proceeding pu...
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MEMORANDUM OF DECISION Before the court is a motion for default filed on behalf of Toyota Motor Credit Corporation against the debtor, Mirian K. Mon-tano. Because the affidavit is insufficient in form and substance, the motion will be denied. Defaults are governed by Bankruptcy Rule 7055 that makes Rule 55 of the Federal Rules of Civil Procedure applicable in adversary proceedings. B...
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MEMORANDUM ON TRUSTEE’S OBJECTION TO DEBTOR’S AMENDMENT TO SCHEDULE F The court has before it an Amendment filed by the debtor on December 6, 1995, amending Schedule F to her petition to add nine postpetition creditors. 1 The debtor seeks to add these creditors in order that they might be included in her Chapter 13 Plan as unsecured creditors. The Chapter 13 Trustee, Gwendo...
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ORDER OVERRULING OBJECTION BY UNITED STATES TRUSTEE TO DEBTOR’S MOTION FOR FINAL DECREE This case came on for hearing on March 6, 1996, on the Objection by United States Trustee to Debtor’s Motion for Final Decree (the “Objection”) (Doc. No. 118). An order confirming the plan of reorganization filed by the debtor, Central Florida Electric, Inc. (the “Debtor”), was entered on October 2...
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MEMORANDUM OPINION ON DEBTOR’S MOTION FOR TURNOVER This contested proceeding relates to a voluntary petition for relief filed under Chapter 7 of the Bankruptcy Code by debtor Lutvi Dalip (“Debtor”) on October 26,1995. Debt- or seeks by motion to adjudicate his right to an escrow fund resulting from pre-bankrupt-cy sale of his home, although he originally agreed for that fund to be pai...
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OPINION Dr. Gerald Wolfe appeals an order of the bankruptcy court sustaining an objection to his claim and allowing a general prepetition unsecured claim against the estate for $470,-000. We reverse and remand. *860 STATEMENT OF THE FACTS The salient facts of this case are not in dispute. The debtor Leisure Time Sports, Inc. and Dr. Gerald Wolfe entered into a m...
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OPINION OVERVIEW The debtor abandoned her leased office space two years prepetition, with 46 months remaining under the lease term. The lessor filed claims for two months past due rent owing as of the date of abandonment and for the remaining rent due under the lease term up to the date it filed its proofs of claim. Section 502(b)(6) of the Bankruptcy Code circumscribes allowance...
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MEMORANDUM OPINION Presently before the Court is the United States Department of Transportation’s (“DOT”) appeal from an Order of the Bankruptcy Court restraining DOT from continuing administrative proceedings to reallocate authority previously granted to USAfrica Airways, Inc. (“USAfrica”) to operate scheduled air service between the United States and South Africa. (D.I. 5). DOT argu...
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82 F.3d 956 35 Collier Bankr.Cas.2d 1183, 29 Bankr.Ct.Dec. 21,Bankr. L. Rep. P 76,995,13 Colo. Bankr. Ct. Rep. 120 In re PETERSON DISTRIBUTING, INC., Debtor,CONOCO, INC., a Delaware corporation, Appellee,v.Harriet E. STYLER, as Trustee for Peterson Distributing,Inc., Appellant. No. 95-4066. United States Court of Appeals,Tenth Circuit. April 30, 1996. Appeal from th...
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MEMORANDUM AND ORDER 1. Defendant Credit Lyonnais (Suisse) S.A. (“Credit Lyonnais”) moves to dismiss the Second Amended Complaint on two grounds: (1) that the claims asserted in that complaint are barred by the automatic stay provisions *75 of 11 U.S.C. § 362; and (2) that the Court does not have in personam jurisdiction over Credit Lyonnais. 2. ...
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At issue is the important question of whether § 1322(b)(2) of the Bankruptcy Code, 11 U.S.C. § 1322(b)(2), prevents Chapter 13 debtors from “stripping down” their primary residence mortgages when the debtors reside in a multi-family house. “Stripping down” would advantage such homeowners by permitting them to cap the dollar amount of the security interest in the home to the home’s actual value ...
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MEMORANDUM AND ORDER This matter is before the court on appeal from the decision of the United States Bankruptcy court for the Northern District of Illinois dismissing plaintiffs adversary complaint. The court having reviewed the record and having considered the briefs of the respective parties, affirms the decision of the bankruptcy court. The United States District courts have ...
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80 F.3d 452 35 Collier Bankr.Cas.2d 1231, 28 Bankr.Ct.Dec. 1185,Bankr. L. Rep. P 76,924 In re Richard SIX, Debtor.OB/GYN SOLUTIONS, L.C., Plaintiff-Appellant,v.Richard SIX, Defendant-Appellee. No. 94-3569. United States Court of Appeals,Eleventh Circuit. April 15, 1996. Lee Statton Damsker, Maney Damsker Harris & Jones, Tampa, FL, for appellant. Jay Barry ...
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MEMORANDUM OPINION Today we make our contribution to the small but growing body of caselaw interpreting 11 U.S.C. § 523(a)(15). The Court, in this ease and in an opinion in the case of Hibbard v. Hibbard, AP No. 96-3044, will discuss this new exception to the bankruptcy discharge in some detail. Here, Joan Smither (“Creditor”), Victor Smither’s (“Debtor”) former spouse, is suin...
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MEMORANDUM This is an appeal by the Chapter 7 Trustee in Bankruptcy, Jerrold D. Farinash (Farinash), from a February 23, 1995 oral decision (the decision) by the United States Bankruptcy Court for the Eastern District of Tennessee (Stinnett, J.), concerning an exemption from the debtor’s estate over the objection of the trustee. Because Judge Stinnett’s order was a final decision, this Cour...
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The office of the United States Trustee has objected to the administrative claim of H. James Abdella for legal fees arising from services rendered on behalf of the Chapter 7 debtors. Because the debtors filed their petition prior to October 22, 1994, the outcome is determined by well-defined standards that *19 apply to eases filed before the effective date of the Bankruptcy Reform Act of 1994. ...
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83 F.3d 306 64 USLW 2763, 35 Collier Bankr.Cas.2d 1259,Bankr. L. Rep. P 76,967,96 Cal. Daily Op. Serv. 3198,96 Daily Journal D.A.R. 5277 In re Gary LAZAR; Divine Grace Lazar, Debtors,James J. FEDER, Examiner; Coopers & Lybrand, Plaintiffs-Appellees,v.Gary LAZAR, Defendant,andSnipper, Wainer & Markoff, Appellant.In re Gary LAZAR; Divine Grace Lazar, Debtors,James J. FEDER, Exami...
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MEMORANDUM OF DECISION RE: CONFIRMATION OF PLAN DATED SEPTEMBER 13, 1995 The matter before the Court is the confirmation of Debtors’ plan dated September 13, 1995 and the objections thereto. This is a core proceeding under 28 U.S.C. § 157(b)(2). This Memorandum and accompanying Order shall constitute the Court’s findings and conclusions under Fed.R.Bankr.P. 7052. As set forth below, the Court c...
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83 F.3d 1041 64 USLW 2726, 35 Collier Bankr.Cas.2d 1272,Bankr. L. Rep. P 77,002,96 Cal. Daily Op. Serv. 3363,96 Daily Journal D.A.R. 5487 In re Stephen MACFARLANE, Debtor.FRANCHISE TAX BOARD OF the STATE OF CALIFORNIA,Creditor-Appellant-Cross-Appellee,v.Stephen MACFARLANE, Debtor-Appellee-Cross-Appellant. Nos. 94-56064, 94-56065. United States Court of Appeals,Ninth Circuit. A...
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MEMORANDUM OPINION A hearing was held on March 25, 1996, on the motion filed by Principal Mutual Life Insurance Company (“Principal Mutual”) on February 13, 1996, for relief from the automatic stay in the case of Lakeside Associates, L.P. (“Lakeside” or “the debtor”) in order to foreclose under a deed of trust or, in the alternative, for dismissal of the case. At the conclusion of the hearing the ...
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MEMORANDUM OPINION AND ORDER ON APPEAL Airport shuttle operator Colorado Mountain Express (CME) appeals from a final order of the bankruptcy court confirming the joint Chapter 11 reorganization plan submitted by small business debtor Aspen Limousine Service (ALS) and Airport Shuttle Colorado (ASC). CME contends the bankruptcy court erroneously elevated speed over fairness in the way it co...
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OPINION In this case Robert Bitters (“Bitters”), an unsecured creditor and former employee of the debtor, Networks Electronic Corp. (“NEC”), has appealed the bankruptcy court’s limitation of his damage claim based on an employment contract action. Moreover, Bitters contends that NEC’s objection to his claim was untimely and prejudicial. We affirm. STATEMENT OF FACTS NEC filed a voluntary ...
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MEMORANDUM DECISION ON TRUSTEE’S MOTION FOR ORDER UPHOLDING TRUSTEE’S DETERMINATIONS DENYING CERTAIN CUSTOMER CLAIMS FOR MARKET LOSSES AND EXPUNGING OBJECTIONS WITH RESPECT TO THOSE DETERMINATIONS AND ON TRUSTEE’S MOTION FOR ORDER UPHOLDING TRUSTEE’S DETERMINATIONS DENYING CERTAIN CUSTOMER CLAIMS FOR LOSSES DUE TO ALLEGED FAILURE TO EXECUTE CUSTOMER ORDERS AND EXPUNGING OBJECTIONS WITH RESPEC...
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OPINION Weil, Gotshal & Manges (‘WGM”), a law firm, moves for summary judgment dismissing the complaint as against WGM. William A. Brandt, Jr., the chapter 7 trustee (the “Trustee”), bases his complaint upon the 1991 leveraged buyout (the “LBO”) of Healthco International, Inc. (the “Debtor”). He has joined as defendants virtually everyone who had any connection with the LBO. Among the...
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OPINION This is yet another case of a leveraged buyout gone sour. In May of 1991, management of Healthco International, Inc. (“Healthco”) escaped from a proxy contest by causing all the company’s capital stock to be sold to a “white knight” in a leveraged buyout (the “LBO”). Healthco filed a chapter 11 petition with this court on June 9,1993. The case was soon converted to chapter 7. ...
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MEMORANDUM OPINION This matter relates to the bankruptcy proceeding filed by Herman Joseph Marino (“Debtor”) under Chapter 11 of the Bankruptcy Code, (the “Code”), 11 U.S.C. § 101 et seq. Mr. Gregory Thompson (“Thompson”) has moved to extend the period of time during which he may file a dischargeability complaint under 11 U.S.C. § 523. For reasons set forth below, that moti...
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ORDER ON MOTION FOR ASSESSMENT OF ATTORNEY’S FEES (#12) AND ORDER ON SUPPLEMENT TO MOTION FOR ASSESSMENT OF ATTORNEY’S FEES (#16) On April 14, 1995, in its Order on Motion for Assessment of Attorney’s Fees, this Court described the latest chapter in the ongoing battle between Earl J. and Wanda Sue Moulton (Debtors) and the United States (Government). The present matter is hopefully the conclusi...
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DECISION AND ORDER BACKGROUND On November 2, 1995 Laura M. Lombardi (“the Debtor”) filed a petition initiating a Chapter 7 case. On her schedules and statements filed with the Court, the Debtor: (1) listed her ownership of a 1991 Hyundai Excel 3-door hatchback automobile (“the Hyundai”); (2) indicated that the Hyundai had been driven in excess of 70,000 miles; (3) valued the Hyundai at $1,800...
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MEMORANDUM This Chapter 12 case was closed and the debtors received a discharge in 1991. Debtors have reopened the case and filed a Motion to Modify the Confirmed Chapter 12 Plan. The Objection by the Farmers Home Administration, now known as Rural Economic and Community Development, and herein referenced as United States of America (“USA”), is sustained and the proposed modification is not a...
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The United States Trustee (“UST”) 1 ap- ■ peals the district court’s judgment affirming the bankruptcy court’s judgment. The bankruptcy court held that pursuant to 11 U.S.C. § 726(a)(5), a trustee may receive interest on his or her compensation dating from the trustee’s appointment and that professionals other than the trustee may receive interest on their fees dating from the submis...
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MEMORANDUM This case presents the question of whether a pre-bankruptcy waiver of the automatic *432 stay of 11 U.S.C. § 362 is enforceable. I decline to follow emerging decisional law and conclude that such waivers are not enforceable, per se. FACTS This voluntary Chapter 11 case was filed on December 29, 1995. At the time the petition was filed, the debtors wer...
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84 F.3d 1294 64 USLW 2767, 35 Collier Bankr.Cas.2d 1413,29 Bankr.Ct.Dec. 153, Bankr. L. Rep. P 76,968,13 Colo. Bankr. Ct. Rep. 255 In re Curtis Lawayne TURNER and Rita Gail Turner, Debtors.Curtis Lawayne TURNER and Rita Gail Turner, Appellees/Cross-Appellants,v.SMALL BUSINESS ADMINISTRATION, The Administrator of theSmall Business Administration, an Agency of theGovernment of the United St...
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OPINION David Margen and Lawton Associates (the Lenders) appeal a judgment of the district court in favor of Tevis Thompson, Jr., (the Trustee), trustee in bankruptcy of James D. and Clara M. McConville (the Debtors). The judgment held void a deed of trust given by the Debtors to the Lenders after the Debtors had filed for bankruptcy. Applying § 362(a)(4) of the Bankruptcy Code, we affirm the jud...
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Harvey Sender, as trustee in bankruptcy, brought claims in the bankruptcy court against Estill Buchanan under, inter alia, 2 11 U.S.C. § 547(b) & (b)(4)(B) (insider preferences) and 11 U.S.C. § 548(a)(2) (constructive fraudulent transfers). The bankruptcy court found in favor of Mr. Sender on both claims. The district court affirmed the bankruptcy court, and Ms. Buchanan n...
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This case arises out of a fraudulent investment scheme with which this court is all too familiar. See, e.g., Sender v. Nancy Elizabeth R. Heggland Family Trust (In re Hedged-Investments Assocs., Inc.), 48 F.3d 470 (10th Cir.1995). Eugene Johnson was one of the innocent investors in the scheme. He finds himself among the small group of investors who received more money from the scheme...
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DECISION AND ORDER FINDING VIOLATION OF AUTOMATIC STAY AND DENYING INJUNCTION FINDINGS OF FACT 1. Plaintiff Elder-Beerman (“Elder-Beer-man”) is a corporation organized under the laws of the State of Ohio. Elder-Beerman is a complex enterprise engaged in the ownership, operation, and management of retail department stores, furniture stores, and related businesses throughout the United...
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MEMORANDUM OPINION This ease presents the question of whether under Bankruptcy Code § 365(d)(3), 11 U.S.C. § 365(d)(3), a debtor must timely pay real estate taxes which accrued pre-petition but were billed during the pre-rejection, post-petition period. This matter is before the Court on the Amended Motion and Supplemental Motion of the landlord National Terminals Corporation (“National”)...
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OPINION SUMMARY The chapter 11 debtor made prepetition overpayments of excise taxes to the IRS. The United States filed a motion for relief from the automatic stay, seeking permission to use the overpayments to offset debts owed by debtor to other federal agencies. The bankruptcy court, holding that all federal government agencies are a single entity for purposes of setoff, grant...
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MEMORANDUM OF DECISION In this action John M. Doughty, a discharged Chapter 7 debtor, seeks an order enforcing § 524’s discharge injunction to halt continuation of a state court tort suit that was instituted by Lisa and Mark Holt before his bankruptcy. 1 For the reasons set forth below, I conclude that although Doughty’s potential personal tort liability to the Holts has be...
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MEMORANDUM OF DECISION Before me on a stipulated record is the Chapter 7 trustee’s objection to Sibyl Higgs’ secured claim insofar as it extends to funds she paid Fleet Bank of Maine in satisfaction of its first mortgage on the debtors’ real property. The trustee concedes that Ms. Higgs has a valid claim as subrogee, but argues that the claim cannot be a secured claim because Fleet, r...
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DECISION ON MOTION FOR DEFAULT JUDGMENT DECLARING DEBTS N ONDISCHARGE ABLE Lehman Brothers, Inc. (“Shearson”), successor in interest to Shearson Lehman Hutton, Inc., sued Richard Sehulman for a declaration that certain debts owed Shearson are nondisehargeable pursuant to section 523(a)(2)(A) or (a)(4) of the Bankruptcy Code. 11 U.S.C. § 523(a)(2)(A) and (a)(4) (hereinafter title 11 of the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon a Motion for Writ of Garnishment filed by Debt- or/Plaintiff, Juliet Kilby and a Response filed by Defendant, Terri Ilgen. A hearing was held on March 7, 1996, based upon which the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT This Court entered an Order Awarding ...
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DECISION ON MOTION FOR SUMMARY JUDGMENT DENYING DISCHARGE PURSUANT TO 11 U.S.C. § 727(a)(2)(A) I. INTRODUCTION The Debtor, Mahmoud S. Kablaoui (“Debt- or”), filed for relief under Chapter 11 of the Bankruptcy Code (the “Code”) on December 10,1993. His case was converted to Chapter 7 on December 2, 1994. This adversary proceeding was commenced on March 16, 1995 by Norma Najjar (“Plaintiff’) se...
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MEMORANDUM OF OPINION AND ORDER Before this Court is the Trustee’s Motion to Compromise Claim arising from a Complaint to Revoke Discharge pursuant to 11 *778 U.S.C. § 727(a)(2)(A) and (B) and Rule 9019(a) Bankr.R.. If approved, the compromise provides for the dismissal of all claims that the Trustee has against the debtor. No objection to the compromise has been filed; the Trustee asserts ...
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MEMORANDUM OF DECISION Before the Court for determination is an “Application by Secured Creditor Melrose Co-operative Bank for Legal Fees and Costs” (the “Application”). Pursuant to the Application, Melrose Co-operative Bank (the “Bank”), an overseeured creditor, requests the allowance of legal fees and expenses in the amount of $3,859.16, pursuant to 11 U.S.C. § 506(b) and Mass.Gen.L...
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OPINION FACTUAL BACKGROUND AND PROCEEDINGS The debtor, John Mantle, and the appellant, Dorothy Mantle, were married in June, 1985. Before her marriage to Mr. Mantle, Ms. Mantle owned certain real property located in San Fernando, California. In August, 1985, Ms. Mantle sold the property and received $79,373.76 in net proceeds, which she placed in an individual checking account. During the...
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OPINION Before: MEYERS, RUSSELL and BARR, 1 Bankruptcy Judges. I OVERVIEW On appeal is an order regarding the rights of two non-debtors in certain buildings formerly owned by the erstwhile debtor. While the bankruptcy case was pending Melvin J. and Dorothy B. Olsen (“Olsens”) initiated an adversary proceeding seeking an order quieting title in the buildings. The ...
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OPINION This adversary proceeding involves the interplay between 11 U.S.C. §§ 523(a)(5) and 523(a)(15) regarding the dischargeability of a $44,082 state court award in a marital dissolution. Although the parties have litigated on the assumption that only § 523(a)(15) applies, the evidence establishes that 97 percent of the state court’s award constitutes nondischargeable support under § 5...
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MEMORANDUM OPINION The Court has before it the complaint of MBNA America (“Plaintiff’) against Mark Edward Chrusz (“Defendant”) seeking that a certain access check in the amount of $16,000 used by the Defendant be excepted from discharge pursuant to 11 U.S.C. §§ 523(a)(2)(C) (Count II) and 523(a)(14) (Count IV). The Court has previously granted summary judgment to the Defendant with respect...
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DECISION and ORDER At South Bend, Indiana, on This matter is before the court on a COMPLAINT FOR EXCEPTION TO DISCHARGE under 11 U.S.C. § 523(a)(2)(A) (“Complaint”). The Complaint was filed on February 21, 1995, by Household Credit Services (“HCS”), a creditor of the bankruptcy estate of Lyndell D. Jacobs and Patricia A. Jacobs (“Jacobs”), Debtors herein. A hearing was held on Ma...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW On March 4,1996, the Court held a trial on the plaintiffs complaint to determine the dis- *443 changeability of a debt under 11 U.S.C. § 523(a)(2)(A). The plaintiff, Chevy Chase Bank, FSB, is an issuer of credit cards, and seeks to except from discharge its claim on a card issued to the debtors, David and Noreen...
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MEMORANDUM This action involves a determination of the bankruptcy estate’s right to receive a refund of certain real property taxes under 11 U.S.C. § 505(a). The chapter 7 trustee, N. David Roberts, Jr. (the “Trustee”), avers that the appraisals of Kingsport Mall from which the real property taxes were assessed by the City of Kingsport and Sullivan County, Tennessee for tax years 1989...
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DECISION ON MOTION FOR RELIEF FROM THE AUTOMATIC STAY Tammy Newman, a creditor and the former spouse of this chapter 7 debtor, moves for relief from the automatic stay so that she may enforce a prepetition order for child support and maintenance and a prepetition judgment for child and spousal support and legal fees out of the debtor’s postpetition assets. She also seeks to pursue an ...
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DECISION AND ORDER ON MOTION TO ALLOW SECURED CLAIM CAME ON for consideration the foregoing matter. Sunwest Bank of El Paso filed a secured claim on February 21, 1996. A bar date of December 4, 1995 for filing claims was set out in the Order and Notice of First Meeting of Creditors. This notice is sent to all creditors in the ease, whether secured or unsecured. The chapter 13 trustee indicate...
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DECISION & ORDER BACKGROUND On October 27, 1995, Mark Searpino (the “Debtor”) filed a petition initiating a Chapter 7 case. On his Schedule A he listed his ownership of a residence at 226 Hinkleyville Road, Speneerport, New York (“Hinkleyville Road”) as having a fair market value of $86,500.00, based upon a December 29, 1994 purchase, subject to a mortgage in favor of Fleet Mortgage ...
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MEMORANDUM ORDER Debtor filed for relief under Chapter 13 of the Bankruptcy Reform Act and seeks to have his plan of reorganization confirmed. The parties dispute whether a debt listed by Debtor for child support arrearages is a priority debt requiring full payment under the plan and whether the debt is dischargeable. This Court finds the debt for child support arrearages is a priority debt a...
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195 B.R. 649 (1996) In re Gregory D. & Lisa M. SULLIVAN, Debtors. Bankruptcy No. 95-53271-K. United States Bankruptcy Court, W.D. Texas, San Antonio Division. March 20, 1996. *650 Roger N. Havekost, San Antonio, Texas, for Debtors. Marion A. Olson Jr., Chapter 13 Trustee, San Antonio, Texas. DECISION ON CONFIRMATION OF DEBTORS' PLAN LEIF M. CLARK, Bankruptcy Judge. This case involves the abi...
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ORDER ON MOTION FOR SUMMARY JUDGMENT ON THE COLLATERAL ESTOPPEL EFFECT OF McCRO-RY’S ALTERNATIVE DISPUTE RESOLUTION I. INTRODUCTION THIS CAUSE came on for consideration upon Motion for Summary Judgment by Defendant Plaisted London Market. This Court has considered all arguments and evidence, including the entire record for this case, consistent with a ruling on a motion for summary j...
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85 F.3d 1415 64 USLW 2781, 35 Collier Bankr.Cas.2d 1681,29 Bankr.Ct.Dec. 223, Bankr. L. Rep. P 76,975,96 Cal. Daily Op. Serv. 4070,96 Daily Journal D.A.R. 6608 In re ARNOLD & BAKER FARMS, Debtor.ARNOLD & BAKER FARMS, Appellant,v.UNITED STATES of America, on Behalf of the UNITED STATESFARMERS HOME ADMINISTRATION, Appellee.ARNOLD & BAKER FARMS, and Western Cotton Services Corp.,...
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DECISION & ORDER BACKGROUND On November 21, 1995, Bernard and Dana Nevería (the “Debtors”) filed a Petition initiating a Chapter 13 case. On their schedules, the Debtors showed their joint ownership of a residence at 266 Westchester Avenue, Rochester, New York (“Westchester”), and further indicated that: (1) the property had a fair market appraised value of $78,500.00; (2) there was ...
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