Chapter 13 trustee sought clarification of time allowed for responding to his motion to dismiss. The court recognized a conflict between Local Rules 2003-1(a), 2083-1(b), and 5005-1(b)(1) which allow a ten-day response time, and Federal Rules of Bankruptcy Procedure 1017(a) and 2002(a) which allow a twenty-day response time. When there is a conflict between the Local Rules and Federal Rules of Bankruptcy Procedure, the Federal Rules control. Accordingly, the response time to a motion to dismiss is twenty days unless otherwise ordered by the court.
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Title: In re Cummins | Date: Jan-6-1999 | Status: UNPUBLISHED (Judge Boulden) | Case(s): 97B-26970
Title: Dennison v Hammond (In re Hammond), 236 B.R.751 (Bankr.D.Utah) | Date: Dec-17-1998 | Status: PUBLISHED (Judge Boulden) | Case(s): 97PB-2227
Debtor's ex-spouse filed a nondischargeability action under 11 U.S.C. §523(a)(5) and 11 U.S.C. §523(a)(15). The court found the debt dischargeable under 11 U.S.C. §523(a)(5) because the ex-spouse failed to prove by a preponderance of the evidence that the parties intended the debt to be in the nature of support at the time of the divorce decree. Because the court did not find that the parties intended the debt to be in the nature of support, it did not reach the issue of whether the substance of the debt was in the nature of support. Sampson v. Sampson (In re Sampson) , 997 F.2d 717, 723 (10th Cir. 1993). However, the court found the debt nondischargeable under 11 U.S.C. §523(a)(15) because the debtor failed to meet his burden of proving either of the exceptions to nondischargeability under 11 U.S.C. §523(a)(15)(A) or (B). At the time of trial, the debtor had the ability to make payments on the debt from income not reasonably necessary for the maintenance or support of the debtor or a dependent of the debtor. The court excluded contributions to the debtor's 401(k) plan and charitable contributions in making this determination. Reviewing the evidence presented under a totality of the circumstances analysis and as it specifically relates to the eleven factors set forth in Hart v. Molino (In re Molino) , 225 B.R. 904, 909 (6th Cir. BAP 1998), the court concluded that the debtor had not shown that discharging the debt would result in a benefit to the debtor that outweighs the detrimental consequences to the ex-spouse.
Title: Gillman v. Treese (In re Northwest Publishing) | Date: Oct-15-1998 | Status: UNPUBLISHED (Judge Boulden) | Case(s): 97PB-2036
Chapter 7 trustee brought this action against two of the debtor's officers and directors claiming corporate mismanagement, requesting an accounting, and seeking a determination that the debtor was defendants' alter ego. The court held that the proceeding was non-core but was related to the main case, and that the parties consented to entry of a final judgment. The court applied state law in analyzing the trustee's corporate mismanagement claim, holding that the presumption of good faith contained in the business judgment rule was overcome by the defendants' gross negligence. The debtor was also determined to be the alter ego of the debtor's president.
Title: In re Eleva, Inc. | Date: Oct-1-1998 | Status: PUBLISHED (Judge Clark) | Case(s): 97C-22299
226 B.R. 123 Creditor, Chapter 7 debtor-employer's group health insurance carrier, filed motion for allowance of administrative expense for unpaid premiums for postpetition insurance coverage provided to debtor's employees. The bankruptcy court held that creditor was not entitled to administrative priority for its claim.
Title: In re Bonneville Pacific Corp | Date: Feb-12-1998 | Status: APPEAL Unpublished See 386.pdf (U.S. District Court) | Case(s): 91A-27701
The district court affirms the bankruptcy court's disallowance of fees and costs incurred by Snell & Wilmer while employed as general counsel for the debtor-in-possession and reverses the bankruptcy court's disallowance of Snell & Wilmer's fees and costs while employed as special counsel to the trustee.
Title: In re Hammond Computer, Inc. | Date: Oct-3-1997 | Status: UNPUBLISHED (Judge Clark) | Case(s): 96C-24958
The matter before the Court is the second and final application for fees filed by the debtor's attorney. Novell, Inc. objected to the application arguing that debtor's attorney's fees and costs associated with defending a motion to appoint a trustee were not beneficial to the estate under §330 and that, as a professional appointed to represent the debtor-in-possession, debtor's attorney failed in his duty to the estate to see to it that certain avoiding actions were commenced against insiders of the debtor. The Court finds that the time spent on services and rates charged for the services are reasonable and that the services were necessary to the administration of the estate and were beneficial at the time at which the services were rendered.
Title: In re Ricci Investment Company | Date: Jul-8-1997 | Status: UNPUBLISHED (Judge Boulden) | Case(s): 93B-23895
Chapter 11 trustee, his counsel and the trustee's accounting firm submitted their third and final supplemental fee applications seeking reimbursement for fees and costs related to the defense of their second fee applications. The trustee and his counsel had encountered significant opposition to their second fee application and the Court disallowed a portion of the fees requested in their second applications. The determination whether the fees requested in the supplemental fee applications is governed by Section 330 as it existed prior to the Bankruptcy Reform Act of 1994 and the Tenth Circuit case law interpreting Section 330. See Rubner & Kutner, P.C. v. U.S. Trustee (In re Lederman Enters., Inc.) , 997 F.2d 1321 (10th Cir. 1991) (benefit to the estate is threshold concern when determining eligibility for reimbursement of fees). The Court determined that trustee's counsel did not exercise reasonable discretion during the course of administering the assets of the estate and the time spent preparing and defending the previous fee application was disproportionate to the amount ultimately in dispute. The reasonableness and necessity of incurring fees to defend a prior fee application in comparison to the benefit to the estate entitled trustee's counsel to 4 percent of the total fee request. The Court awarded a collective 34 percent of the total amount requested by the trustee and the trustee's accounting firm because there was benefit to the estate for the trustee's defense against allegations that the trustee acted negligently because those allegations were subsequently found to be untrue. The Court further disallowed the applicants' request for payment of interest and collection costs on the fees previously approved by the Court.
Title: Republic National Bank of New York v. RSH Ltd. (In re Ben Lomond Suites, Ltd.) | Date: Mar-6-1997 | Status: UNPUBLISHED (Judge Clark) | Case(s): 96PC-2270, 96PC-2316
Motions for dismissal and remand are before the Court. The fact that a dispute may require an interpretation of a confirmed plan does not necessarily make the dispute a core proceeding. A confirmed plan has characteristics of both a contract and a judgment. State courts are well qualified to adjudicate contract disputes and to enforce judgments. The removed adversary proceeding existed outside of bankruptcy and the adversary proceeding filed in this Court, which is nearly identical to the removed adversary, could exist outside of bankruptcy. The Court finds that the controversy before the Court is in the nature of a contract dispute which can be adjudicated in state court. Accordingly, neither the removed adversary proceeding nor the adversary proceeding is a core proceeding. The Court can find nothing in the adversary proceeding or the removed adversary proceeding that would affect the reorganized debtor's rights, liabilities, options or freedom of action in any way, nor can the Court find that this litigation will affect, in any conceivable way, the handling or administration of the bankruptcy estate. The Court finds that there is no bankruptcy estate to administer. The bankruptcy estate ceased to exist at the point when the transfer of estate property from the reorganized debtor to RSH became effective. The Court orders that adversary proceeding no. 96PC-2270 is dismissed for lack of jurisdiction, and orders that adversary proceeding no. 96PC-2316 is remanded to state court for the reason that this Court lacks jurisdiction to adjudicate the matter.
Title: In re Ricci Investment Company | Date: Jan-10-1997 | Status: UNPUBLISHED (Judge Boulden) | Case(s): 93B-23895
The proponents of a confirmed chapter 11 plan objected to the fee application filed by the chapter 11 trustee's attorneys and raised issues regarding the chapter 11 trustee's business judgment versus the attorney for the trustee's legal judgment, whether certain tasks performed by the trustee's attorneys were beneficial to the estate, and the impact of a violation of Fed. R. Bankr. P. 3016(a) on the allowance of fees. Relying on In re Curlew Valley Assoc. , 14 B.R. 506 (Bankr. D. Utah 1981), the Court found that although in hindsight, some of the trustee's decisions may have appeared improvident or premature, the trustee's decisions were reasonable, made in good faith, and were within the scope of the trustee's authority under the Bankruptcy Code. Applying 11 U.S.C. § 330 as it existed prior to the Bankruptcy Reform Act of 1994, the Court determined benefit under Rubner & Kutner, P.C. v. U.S. Trustee (In re Lederman Enters., Inc.) , 997 F.2d 1321 (10th Cir. 1993) by looking at whether services rendered by the trustee's attorneys promoted the bankruptcy process in accordance with the Bankruptcy Code and Rules. The Court concluded that time spent by the trustee's attorneys to draft the trustee's disclosure statement and plan that were filed in violation of Fed. R. Bankr. P. 3016(a) and time spent by the trustee's attorneys on an escrow agreement that allowed a result contrary to that approved by the Court were not beneficial to the estate. The Court denied compensation for these services.
Title: ln re Vario In re Boswell | Date: Nov-14-1996 | Status: UNPUBLISHED (Judge Boulden) | Case(s): 96B-22208 96B-21913
The standing chapter 13 trustee objected to confirmation of the chapter 13 debtors' proposed plans, which provided for interest payments through the plan on prepetition mortgage default amounts. Since, in both cases, the contracts between the debtors and mortgage holders were entered into after October 22, 1994, 11 U.S.C. § 1322(e) was applicable. Section 1322(e), enacted to overrule Rake v. Wade, 508 U.S. 464 (1993), prohibits the payment of interest on prepetition mortgage defaults unless the underlying contract or applicable non-bankruptcy law so provides. The court sustained the trustee's objection to confirmation, but confirmed both plans as subsequently amended to remove the interest provision.