In re Ali Properties, Inc., MJB Motels, Inc.; Case No. 03-10433-11 (Nugent) (August 3, 2005)
ORDER ON (1) APPLICATION TO ENTER FINAL DECREE; AND (2) MOTION TO CONSTRUE PLAN AS TO SUFFICIENCY OF CURE OF GROUND LEASE TAX DEFAULT
Facts:
Ali Properties, Inc. and MJB Motels, Inc. (“debtors”) filed Chapter 11 bankruptcy petitions, and the cases were jointly administered, and on December 17, 2004, the plan was confirmed. The lessors of certain real estate leased to the debtors and filed an objection to the final decree. The debtors owed in excess of $50,000.00 to the county for unpaid property taxes. The lessors argued that the confirmed plan failed to adequately cure the default to the county, and therefore, the debtors are in default of the plan and underlying use, and the lessors should be allowed to take possession of the real estate. The debtors argued that the confirmed plan allowed for a six-month pay-out of the taxes to cure the arrearage, and that the six-month cure . . . . The debtors’ failure to object to the plan precludes them from raising this issue.
Holding:
The lessors failed to raise a timely objection and are precluded from now arguing that the proposed plan fails to properly and adequately cure the arrearage. The county has accepted the six-month pay-out through the plan and is the cure as contemplated in the ___________.
In re Dennis S. Kindsvater and Kathy L. Kindsvater; Case No. 03-13561-11 (Nugent) (August 4, 2005)
ORDER GRANTING SUNFLOWER BANK’S MOTION FOR RECONSIDERATION
Facts:
On May 6, 2005, the Court entered an order regarding the valuation of certain stock. Sunflower Bank subsequently filed a motion for reconsideration. At evidentiary hearing, the Court heard testimony from an expert who used three methods of valuation, which were given a weighted average for a result number. Sunflower Bank objected to the order on the basis that the Court failed to include certain calculations in two of the three components to the weighted average. The Court agreed.
Holding:
The three components of the weighted average needed to be clarified to allow the stock value to be included in all. The previous order only applied the stock value in one of the components to the weighted average.
Mary E. May v. Larry Jean Jamison; Robert Page v. Larry Jean Jamison; Carl B. Davis v. Larry Jean Jamison (all In re Jamison); Adv. No. 04-5045; Adv. No. 04-5066; Adv. No. 04-5160; Case No. 03-14735-7 (August 17, 2005) (Nugent) (March 11, 2005)
Facts [(common to all)?]:
The debtor Larry Jean Jamison filed a Chapter 7 bankruptcy petition on August 28, 2003. The debtor failed to disclose several items in his schedules and statement of affairs. At evidentiary hearing, the Court determined that the debtor concealed two bankruptcy conversions, converted assets immediately before filing bankruptcy, made transfers of property which he continued to use, transferred property to family members, conversion after the entry of a large judgment against the debtor and the debtor’s engagement in a pattern of sharp dealings prior to bankruptcy. The debtor had been involved with, and owned, several family businesses in the auto sales, repair and body business. The activities of these businesses in which the debtor was involved were not disclosed.
Holding:
The debtor was an integral actor in each of the family enterprises and was a material beneficiary of all of them. The debtor made credit applications and signed security financial documents on behalf of the enterprises. He received monetary and non-monetary benefits from the enterprises. The debtor has intentially hidden, delayed or defrauded many and concealed property within one year before the date of filing bankruptcy. Furthermore, the debtor knowingly and willfully, with the intent to defraud, made false oaths concerning material facts. Discharge shall be denied.
Jan Hamilton v. Washington Mutual Bank, FA; (In re Colon); Adv. No. 05-7032; Case No. 04-42174-13 (Karlin) (September 9, 2005)
MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS
Facts:
The debtors filed Chapter 13 bankruptcy on August 11, 2004, and concurrently filed their Chapter plan. The plan stated that the first mortgage holder, Washington Mutual Bank, held an improperly perfected mortgage and that the debtors would make regular mortgage payments to the trustee until which time the issue is resolved. To the extent the mortgage is improperly perfected, the trustee would retain the accrued payments and disburse those through the plan. If the mortage is properly perfected, the trustee will turn those funds back to Washington Mutual Bank. There were no objections to confirmation of the plan, and the plan was confirmed on October 22, 2004. The trustee then brought an adversary complaint to find the mortage unperfected. The mortgage holder filed a motion to dismiss on the basis that 1) the trustee has no standing post-confirmation to pursue the adversary complaint, 2) the trustee had abandoned all non-exempt property, and 3) the trustee has no power under [Section 544?] to avoid the lien, because the plan does not provide standing. The Court disagrees with the argument and denies the motion to dismiss.
Holdings:
1. Pursuant to the confirmation order, the property of the estate does not reinvest in the debtors until after the trustee’s final report and accounting, which is typically entered at the end of the case. The real estate is ________ to be property of the estate, and the trustee has to bring action that will benefit creditors of the estate.
2. The trustee did not abandon the property of the estate. The mortgage holder relies on an incorrectly docketed entry on the Court’s docket. The entry pertained to the trustee report of no distribution of intent of abandonment; a form used [under?] powers vested with the Chapter 7 trustee, not the Chapter 13 trustee. This is clearly a docketing error and should not impair the rights of the parties.
3. The trustee has full confirmation power, as allowed by the confirmed plan, to pursue this adversary proceeding on behalf of and for the benefit of the creditors of the estate.
In re Richard Franklin Stroble and Mary Susan Stroble; Case No. 03-24926-7 (Berger) (September 7, 2005)
Facts:
The debtors Richard and Mary Stroble (“debtors”) filed their petition for Chapter 7 relief on November 19, 2003, and later amended their schedule and sued to claim a settlement for unfair and deceptive mortgage lien practices as exempt under their homestead allowance. The Chapter 7 trustee filed his objection to the exemption of the settlement on the basis that Kansas law does not extend to Stroble’s pre-petition interest in the settlement. The Court held in favor of the debtors.
Holding:
Kansas Court ________ to extend the homestead exemption equitably to protect the proceeds of the sale of the homestead _______ and the intent to use the proceeds to obtain another homestead, and as a ________ to allow the equitable conversion doctrine to allow debtors to claim exempt all deposits with a builder for the construction an addition to their existing homestead. Furthermore, had the mortgage holder not committed the unfair practices, the same proceeds would have been applied against the mortgage, and additional equity would have accrued.
Christopher J. Redmond v. Donald Kenton Kester and Charlotte Yvonne Kester (In re Kester); Adv. No. 03-6089; Case No. 02-24689-7 (Berger) (September 16, 2005)
MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART THE TRUSTEE’S MOTION FOR SUMMARY JUDGMENT
Facts:
The debtors Donald and Charlotte Kester (“debtors”) filed a Chapter 7 bankruptcy petition, and after several amendments, claimed that certain property held in trust in which the debtors held an equitable interest as exempt. The trustee filed a motion for ________ of the property held in the [self-_______(?)] trust (irrevocable trust), because the debtors were not entitled to an exemption of the trust property. The Court denied the motion. The debtors asserted several counter-claims against the trustee, including that the trustee should be removed for cause. The Court denied the motion.
Holdings:
1. The Court agrees with the trustee that a self-________ irrevocable trust places the trust as the true and legal owner of the property it holds; however, a beneficiary retains an equitable interest in the property. Pursuant to Kansas law, a beneficiary’s equitable interest in property held in interest should entitle him or her to the same rights as any individual who holds property.
2. The Court takes judicial notice of the court record that the debtor ______ in a bankruptcy case and associated with deeds conducted with astute business judgment in evaluating and administering the debtor’s estate, there is no cause to remove the trustee.
J. Michael Morris v. Boeing Wichita Credit Union; Jon A. Hicks and Amy E. Hicks; Boeing Wichita Credit Union v. State of Kansas, Department of Revenue, Division of Vehicles; (In re Hicks); Adv. No. 04-5072; Case No. 03-16625-7 (Somers) (September 14, 2005)
MEMORANDUM DECISION GRANTING TRUSTEE’S COMPLAINT FOR LIEN AVOIDANCE
Facts:
In September 2003, the debtors Jon and Amy Hicks (“debtors”) purchased a 1994 Ford Expedition, which was financed through Boeing Wichita Credit Union (“lender”). The debtors signed a notice of security interest in favor of the lender, and the lender submitted the notice and the requisite recording fees to the state. The debtors later applied to the state for a title, and the title failed to note the lien of the lender. In a separate _____, the debtors filed for Chapter 7 bankruptcy protection. The trustee filed his complaint for a lien avoidance, based on the belief that the [1999 form?] was unperfected as of the date of the bankruptcy filing and thus may be avoided and preserved for the benefit of the state. The state argues that the security interest continued to remain in effect as of the filing date. The Court granted the trustee’s complaint for lien avoidance.
Holding:
Even though the plain reading of the controlling statute does not give any date as to when the notice of security interest lapses, the Court finds that the notice of security interest was enacted for the limited purpose of protecting the purchase and money lienholders between the date of purchase and the date the certificate of title is issued. Therefore, the notice of security interest is inoperative after the certificate of title is issued.
Lindsay Manufacturing Co. v. Douglas Morris and Natasha Morris (In re Morris); Adv. No. 05-5535; Case No. 05-11888-7 (Somers) (September 14, 2005)
Facts:
The debtors Douglas and Natasha Morris (“debtors”) filed a Chapter 7 bankruptcy petition, and the plaintiff Lindsay Manufacturing Co.(“plaintiff”) filed a complaint. The complaint asserted several counts, including breach of contract, fraudulent representation, fraudulent concealment and tortious interference, and prayed for a judgment in the amount of almost $800,000.00. The only reference to the bankruptcy code is in the one paragraph where the plaintiff asserts the action is being brought in connection with the debtors’ bankruptcy to determine the debt non-dischargeable. The defendants filed a motion to dismiss the complaint on the basis that the complaint failed to state a claim upon which relief may be granted. The Court denied the motion.
Holding:
The Court construes the _________ as an adversary proceeding to determine the debt non-dischargeable under 523(a). The Court has jurisdiction over the subject matter. Furthermore, the plaintiff has failed to state a claim upon which relief may be granted in that it clearly states its claims for relief and gives the notice of the nature of the bankruptcy relief sought. The Court, however, grants the plaintiff’s motion for more and definite statement to clarify under what grounds the plaintiff asserts its claims.
|
|