TRIAL OPINION THOMAS J. TUCKER, Bankruptcy Judge. In this adversary proceeding, Plaintiff Belfor USA Group, Inc. ("Belfor") seeks a money judgment against Defendant-Debtor Shaneese Williams ("Debtor") for damages due to Debtor's alleged conversion of certain property belonging to Belfor. And Belfor seeks a determination that this debt is nondischargeable in Debtor's Chapter 7 bankruptcy case, under 11 U.S.C. 523(a)(2)(A), 523(a)(4), and 523(a)(6). The Court conducted a bench trial, and...
OPINION REGARDING (1) THE FIRST AND FINAL FEE APPLICATION OF KILPATRICK & ASSOCIATES, P.C.; (2) THE CHAPTER 7 TRUSTEE'S MOTION TO SURCHARGE PROPERTY PURSUANT TO 506(C); AND (3) CREDITORS JAMES AND SHIRLEY McLEAN'S MOTION FOR SANCTIONS WALTER SHAPERO, Bankruptcy Judge. Three matters are before the Court. The first is Kilpatrick & Associates, P.C.'s, counsel for the Chapter 7 Trustee, first and final fee application. The second is the Chapter 7 Trustee's motion to surcharge certain property...
OPINION REGARDING OBJECTIONS TO CONFIRMATION OF DEBTOR'S PLAN THOMAS J. TUCKER, Bankruptcy Judge. This Chapter 11 case presents a dispute over confirmation of the proposed plan of reorganization filed by the Debtor, BWP Transport, Inc. ("BWP"). BWP's largest creditor, JPMorgan Chase Bank, N.A. ("Chase,") which also is a secured creditor, objects to confirmation on numerous grounds. Among these, Chase argues that BWP's plan unfairly discriminates against Chase, because the plan proposes to...
OPINION REGARDING MOTION FOR TEMPORARY RESTRAINING ORDER FILED BY CREDITOR BANK OF AMERICA DANIEL S. OPPERMAN, Bankruptcy Judge. A creditor, Bank of America, filed an Ex-Parte Motion for Temporary Restraining Order and for Order to Show Cause Why H. Dale Cubitt Should Not be Held in Contempt of Court. This Court granted limited relief to Bank of America by way of an Order dated June 9, 2011, and set this matter for an evidentiary hearing on September 16, 2011. At this evidentiary hearing,...
Opinion and Order Regarding: Application of Honigman Miller Schwartz and Cohn for Second Award of Attorney Fees and Expenses, and Supplement and JRH's Motion for Assessment of Additional Punitive Damages Based on Post-Award Conduct STEVEN RHODES, Bankruptcy Judge. I. Introduction A. The Fee Application and Supplement Upon remand from the district court, this matter is again before the Court on the "Application of Honigman Miller Schwartz and Cohn for Second Award of Attorney Fees and...
OPINION REGARDING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT THOMAS J. TUCKER, Bankruptcy Judge. This adversary proceeding raises collateral estoppel issues. These include the question whether, under Michigan law, a "true default" judgment ( i.e., one entered without the defendant having participated in defending the case,) is entitled to any preclusive effect in a later lawsuit between the same parties. The Court answers this question "yes." The remaining issues arise in the Court's...
OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION THOMAS J. TUCKER, Bankruptcy Judge. This case is before the Court on a motion filed by David Findling entitled "Motion for Reconsideration of Opinion[, etc.]," filed September 20, 2011 (Docket # 56, the "Motion"), which this Court construes as a motion for partial reconsideration of, for partial relief from, and to alter or amend in part, the Court's September 16, 2011 Order Granting in Part, and Denying in Part, Debtor's Motion for...
OPINION REGARDING DAVID FINDLING, RECEIVER'S "MOTION FOR AN ORDER CONFIRMING THAT NO STAY IS IN EFFECT [ETC.]" THOMAS J. TUCKER, Bankruptcy Judge. This case came before the Court for hearing on August 24, 2011 on two motions. This opinion concerns one of those motions, namely the motion filed by the state court receiver, David Findling ("Findling") entitled "Motion for an Order Confirming That No Stay Is In Effect Pursuant to 362(j) and LBR 4001-5(e)" (Docket # 16, the "Motion"). For the...
OPINION REGARDING DEBTOR'S "MOTION FOR SANCTIONS FOR VIOLATION OF THE AUTOMATIC STAY" THOMAS J. TUCKER, Bankruptcy Judge. This opinion concerns the scope of the "criminal action or proceeding" exception to the automatic stay, contained in 11 U.S.C. 362(b)(1). The case came before the Court for hearing on August 24, 2011 on two motions. This opinion concerns one of those motions, namely the Debtor's motion entitled "Motion for Sanctions for Violation of the Automatic Stay" (Docket # 28, the "...
OPINION GRANTING TRUSTEE'S MOTION FOR SUMMARY JUDGMENT ON COUNT I OF THE AMENDED COMPLAINT PHILLIP J. SHEFFERLY, Bankruptcy Judge. INTRODUCTION The Plaintiff in this adversary proceeding is the Chapter 7 Trustee. The Trustee filed this adversary proceeding seeking various forms of relief against the Defendants. Count I of the Trustee's complaint seeks a determination under 544 of the Bankruptcy Code that the Trustee is entitled to avoid a security interest claimed by the Defendants...
OPINION REGARDING DEBTORS' MOTIONS TO ASSUME KFC FRANCHISE AGREEMENTS, AND THE BANKRUPTCY CODE 365(c)(1) ISSUE THOMAS J. TUCKER, Bankruptcy Judge. These jointly administered Chapter 11 cases came before the Court for a hearing on August 3, 2011, on six different motions. Four of the motions are motions by the Debtors to assume certain pre-petition franchise agreements between Debtors and KFC Corporation ("KFC") and establish cure costs associated with the proposed assumptions (Docket ##...
Opinion Regarding Cross-Motions for Summary Judgment STEVEN RHODES, Bankruptcy Judge. I. On December 16, 2010, Patricia Ann Nowlen filed for chapter 7 relief. On February 11, 2011, Michael Stevenson, the chapter 7 trustee, filed a complaint against the Neely-Turowski Funeral Home for recovery of funds Nowlen paid to the Funeral Home as a preferential transfer under 11 U.S.C. 547(c)(2) or as a fraudulent transfer under 548(a)(1)(B). The facts underlying this adversary proceeding are...
OPINION GRANTING UNITED STATES TRUSTEE'S MOTION FOR RULE 2004 EXAMINATION PHILLIP J. SHEFFERLY, Bankruptcy Judge. This opinion addresses a motion for a Federal Rule of Bankruptcy Procedure 2004 examination filed by the United States Trustee ("UST"). The UST seeks an order authorizing it to conduct an examination of Bank of America, N.A., formerly known as Countrywide Home Loans Servicing LP, and its subsidiary, BAC Home Loans Servicing L.P. ("BAC"). For the reasons explained in this opinion,...
OPINION REGARDING DEBTORS' MOTION TO ENFORCE TERMS OF DECEMBER 21, 2010 ORDER AND FOR COSTS THOMAS J. TUCKER, Bankruptcy Judge. The Chapter 7 Trustee in this case sold the Debtors' home. Before Debtors moved out, they removed several items, including window blinds, drapes, a refrigerator, a dishwasher, a doorbell, and a mailbox. The Court must decide whether the missing items were fixtures under Michigan law, and therefore part of the real estate that the Trustee sold, or whether they were...
Opinion and Order Granting Stay STEVEN RHODES, Bankruptcy Judge. I. The debtor filed for chapter 7 relief on July 24, 2008. He was represented by Edward J. Gudeman of Weik and Assoc., P.C. On December 2, 2010, the debtor filed a motion to remove Gudeman as his attorney. The motion was granted by order dated January 31, 2011. On March 22, 2011, the debtor, through his new attorney, Jay Kalish, filed a motion, pursuant to 329 and Rule 2017, for a determination of the propriety of his fee...
OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PHILLIP J. SHEFFERLY, Bankruptcy Judge. Introduction The plaintiff in this adversary proceeding is the Chapter 7 trustee. The trustee filed this adversary proceeding seeking a declaratory judgment that the defendant insurance company is required to provide coverage for certain claims asserted against the Chapter 7 debtor. The defendant filed a motion for summary judgment based upon its contention that the insurance policy at issue...
OPINION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT THOMAS J. TUCKER, Bankruptcy Judge. In this adversary proceeding, the Chapter 7 Trustee seeks to avoid and recover, as fraudulent transfers, four payments that the Debtors made to Defendant Marquette University ("Marquette"). The Debtors made these payments, totaling $21,527.00, to pay for their 18-year old son's tuition and certain other expenses to attend Marquette. The Trustee and Marquette have each filed motions for summary judgment....
Opinion Sustaining Trustee's Objection to Confirmation STEVEN RHODES, Bankruptcy Judge. I. Spouses, Deborah and Timothy Lovell, filed separate Chapter 13 cases because their combined unsecured debt exceeded the debt limit of 109(e). Timothy Lovell's unsecured debt is $355,438. Deborah Lovell's unsecured debt is $112,933. Deborah Lovell is unemployed. She proposed a plan paying $250 per month for 60 months. Her husband is funding her plan. The trustee objected to confirmation of Deborah's...
OPINION REGARDING DEFENDANTS' MOTION TO DISMISS THOMAS J. TUCKER, Bankruptcy Judge. This adversary proceeding is before the Court on the Defendants' motion to dismiss all of the claims in Plaintiffs' Complaint. Defendants are the debtors in a pending Chapter 13 case, which they filed on March 5, 2010, and in which a plan was confirmed on December 8, 2010. Plaintiffs, who are not represented by counsel in this adversary proceeding, are creditors in the bankruptcy case. Before the bankruptcy...
OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING RELATED PLAN MODIFICATION WALTER SHAPERO, Bankruptcy Judge. In this post-confirmation adversary proceeding, Plaintiffs seek a ruling that the claim of the senior mortgagee exceeds the value of the residence and therefore Plaintiffs can proceed to "strip" Defendant's junior lien. Plaintiffs have also filed a related plan modification, seeking to effectuate the lien strip if available. Plaintiffs and Defendant each filed...
