DECISION AND ORDER GRANTING MOTIONS TO DISMISS COMPLAINT PAUL R. WARREN , U.S.B.J. The Chapter 13 Debtors in each of these adversary proceedings seek to undo the consequences resulting from the failure to redeem their homes from real estate tax lien foreclosure actions. 1 Ontario County brought those foreclosure actions under Article 11 of the New York Real Property Tax Law ("RPTL"). The Debtors do not dispute the fact that judgments of foreclosure were entered by the state court...
DECISION AND ORDER AND FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE SECOND MODIFIED SECOND AMENDED JOINT PLAN UNDER CHAPTER 11 OF THE BANKRUPTCY CODE, DATED AUGUST 10, 2017 PAUL R. WARREN , Bankruptcy Judge . The Court having considered (i) the Second Modified Second Amended Joint Plan Under Chapter 11 of the Bankruptcy Code Dated August 10, 2017 [Dkt. No. 1062] (the " Plan ") as subsequently supplemented, amended or otherwise modified in accordance with the terms of the Plan...
DECISION AND ORDER DISMISSING CHAPTER 7 CASE FOR CAUSE, UNDER 11 U.S.C. 707(a)(1), REINSTATING AVOIDED TRANSFER, UNDER 11 U.S.C. 349(b)(1)(B), VACATING ORDER AND JUDGMENT PREVIOUSLY GRANTED UNDER 11 U.S.C. 550, AS PERMITTED BY 11 U.S.C. 349(b)(2), AND REVESTING TITLE TO PROPERTY OF THE ESTATE IN THE COUNTY OF ONTARIO, UNDER 11 U.S.C. 349(b)(3) PAUL R. WARREN , Bankruptcy Judge . The Court issued an Order for the Chapter 7 trustee—and any party in interest—to show cause why this...
NOT FOR PUBLICATION OPINION AND ORDER GRANTING MOTIONS TO DISMISS IN PART AND DENYING SAID MOTIONS IN PART MICHAEL J. KAPLAN , Bankruptcy Judge . Having considered the submissions and the oral argument conducted on November 17, 2017, the Court rules on the Defendants' Motions to Dismiss as follows. In the Nigel Bates Adversary Proceeding 1 and Jeremy Bates Adversary Proceeding, the 727 causes of action (as contained in the initial Complaints and First Amended Complaints) are...
NOT FOR PUBLICATION OPINION AND ORDER DISMISSING ADVERSARY PROCEEDING AS UNTIMELY MICHAEL J. KAPLAN , Bankruptcy Judge . Here we have a late-filed dischargability complaint leading to the Debtor's motion to dismiss the complaint as late-filed. Plaintiff's counsel has filed an affirmation of his own. It is always refreshing when counsel might offer something of counsel's personal knowledge, rather than turning a client's unfortunate tale into counsel's own attestation. However, even such...
DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO MAKE SERVICE BY EMAIL UNDER RULE 4(f)(3) FRCP PAUL R. WARREN , Bankruptcy Judge . The Chapter 7 Trustee commenced a civil action against Craig Wilson by filing a complaint on September 12, 2017. (ECF AP No. 1). 1 Counsel to the Trustee—William Brueckner—immediately filed an ex parte motion requesting that the Court authorize service of the summons and complaint by email under Rule 4(f)(3) FRCP, arguing that making service under Rule 4(f)(...
NOT FOR PUBLICATION MICHAEL J. KAPLAN , Bankruptcy Judge . DECISION AND ORDER Early this year Will Foods, LLC ("Will") publicly announced that it was closing its doors. Once it did so (apparently in March, 2017) its lender M&T Bank ("M&T") proceeded to liquidate its collateral. On April 14, 2017, an involuntary petition against Will was filed by one creditor only, Amick Farms, LLC ("Amick"). On May 5, 2017, Will filed its answer to the involuntary petition asking that the involuntary...
DECISION AND ORDER MICHAEL J. KAPLAN , Bankruptcy Judge . The issue is whether an involuntary petition filed by only one creditor (but later joined by other creditors) should/must/might be dismissed so as to place potentially preferential transfers beyond the reach of 11 U.S.C. 547. Obviously, "No", unless an evidentiary hearing establishes a lack of good faith in the filing. The parties seem to agree that the Second Circuit case of Lubow Machine Co., Inc. v. Bayshore Wire Products Corp....
OPINION AND ORDER MICHAEL J. KAPLAN , Bankruptcy Judge . We have known since 1978 that Congress made a mistake regarding the exemptability of personal injury awards when the injured party has landed in Bankruptcy Court. 11 U.S.C. 522(d)(11)(D), (E), then exempted "the Debtor's right to receive, or property that is traceable to — (D) a payment, not to exceed $7500.00, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the...
DECISION AND ORDER GRANTING MOTION OBJECTING TO CLAIM PAUL R. WARREN , Bankruptcy Judge . On January 9, 2017, Family First of NY Federal Credit Union ("Family First") filed a proof of claim, asserting a general unsecured claim of $22,778.55. The claim represents the deficiency remaining after the liquidation sale of the Debtor's ("Strickner") automobile in which Family First had a perfected security interest. (Claims Register, Claim No. 12). The Trustee has objected to the Family First...
DECISION & ORDER Hon. Carl L. Bucki , Chief U.S.B.J., W.D.N.Y. Lawyers must proceed with great caution whenever they propose to represent both a corporation and its principal owner in Chapter 11. Proper representation becomes even more challenging when such cases are jointly administered. In these situations, the attorney implicitly promises to provide complete and undivided assistance to each client. In the context of the final fee application presented in this case, outstanding issues...
DECISION AND ORDER HOLDING IN ABEYANCE CONSIDERATION OF MOTIONS SEEKING APPROVAL OF COMPETING DISCLOSURE STATEMENTS AND DIRECTING PARTIES TO BRIEF SUBSTANTIVE ISSUES CONCERNING COMPETING CHAPTER 11 PLANS PAUL R. WARREN , Bankruptcy Judge . This Chapter 11 case was filed to stave-off enforcement of a New York State sales tax claim for around $1.0 million and to stop an eviction proceeding by Buckingham Properties aimed at Flour City Bagels' most profitable bakery and its commissary. (ECF No....
NOT FOR PUBLICATION MICHAEL J. KAPLAN , Bankruptcy Judge . Now that the parties agree that the law of Norway would control all of the substantive issues in this A.P. even if it were clear (and it is not) that courts of Norway would venue it here, it is clear to this Court that an appropriate court of Norway must decide where and how the subject matter of this A.P. shall proceed, if at all. Perhaps such a court will rule (under Norwegian law) that only the defendants in A. P. No. 13-1061 K...
OPINION AND ORDER DEFERRING DECISION ON ROOKER-FELDMAN ISSUE PENDING AN INQUIRY 1 Michael J. Kaplan U.S.B.J. The matter at Bar are Motions by Defendants LSF9 Master Participation Trust and Caliber Home Loans, Inc., and DLJ Mortgage Capital, Inc. and Selene Finance LP to dismiss this AP which challenges their standing to foreclose a mortgage and right to file a proof of claim on real property commonly known as 181 Bay 25th St., Brooklyn, New York in New York State Supreme Court,...
