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Opinion 147

Case Name: 

Sandy State Bank v. Fetzer (In re Lehwalder)

Judge: 
Judge Clark
Date: 
Feb-4-1985
Case Number(s): 
82PC-0882
Status: 

UNPUBLISHED

Body: 

Bank filed an adversary complaint against various defendants who owed money to debtor, seeking recovery of debts based on bank's superior security interest. Bank filed motions for summary judgment, to which the only defense was that the court was without subject matter jurisdiction. No evidence was presented at the hearing on the motions by defendants. The court granted summary judgment, indicating that it was unopposed and appeared to be meritorious. Shortly thereafter, defendants filed an objection to entry of summary judgment, raising factual issues regarding service of the motions, counsel's entry of appearance for defendants at the summary judgment hearing, and service of the complaint on one of the defendants. Bank's counsel filed an affidavit controverting defendants' claims, but defendants again failed to offer any evidentiary support. Based on defendants' failure to controvert the facts sworn to by plaintiff's counsel, and the fact that defendants were attempting to raise new defenses to summary judgment that they had not made at the hearing, the court found that their objection was not properly a motion under either Bankr. Rule 9023(c) or Rule 9024(a), nor could it be granted under 11 U.S.C. § 105, as there were no facts before the court to support their allegations. Defendants' objection was denied.

Internal Ref: 
Opinion 147
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