Chapter 13 debtors obtained confirmation of their plan from the court. Shortly thereafter, creditor filed an adversary complaint against debtors, to which debtors counterclaimed. The court set the matter for an expedited 2-hour trial to take place approximately 4 months later. On the day prior to trial, debtors' counsel informed the court that the parties had settled and the trial could be stricken. Pursuant to the scheduling order, the court assessed plaintiff's and debtors' attorneys with costs, in the amount of $25 each. Plaintiff's attorney paid the assessment by the deadline, but debtors' attorney did not pay the assessment at all, and argued at a subsequent hearing that the assessment was improper. The court held that it had authority to assess reasonable expenses under Fed. R. Civ. P. 16(f) [Bankr. Rule 7016], and that it had authority to enforce its assessment by contempt pursuant to Fed. R. Civ. P. 37(b)(2) [Bankr. R. 7037]. Therefore, the court imposed an additional sum of $10 on debtors' attorney for his contempt of court in failing to timely pay the previous assessment.
You are here
Opinions
The District of Utah offers a database of opinions for the years 1979 to Current, listed by year and judge. For a more detailed search, enter the keyword or case number in the search box above.
Opinion Archive
Click here to view the Court's Opinions in reverse Chronological order.
Title: Am. Bank & Trust Co. v. Moyer (In re Moyer), 51 B.R. 302 (Bankr.D.Utah) | Date: Apr-18-1985 | Status: PUBLISHED (Judge Clark) | Case(s): 83PC-0892
Title: In re Sunstone Ridge Assocs. | Date: Apr-12-1985 | Status: UNPUBLISHED (Judge Clark) | Case(s): 85C-0199
Debtor's principal asset was an apartment complex, which was valued at approximately $2 million less than the debt secured by it. Creditor moved for relief from stay, and debtor opposed the motion on the ground that the property, which it intended to "condominiumize," was necessary to an effective reorganization. The court granted creditor's motion for relief from stay, concluding that debtor's planned development of the property was "wholly speculative." The district court vacated and remanded the bankruptcy court's decision in 153a.pdf, concluding that § 362(d)(2) does not require a showing of feasibility in addition to necessity. In 153b.pdf, the Tenth Circuit dismissed creditor's appeal from the district court judgment, finding that the appeal had "become entirely moot."
Title: In re Clark | Date: Apr-3-1985 | Status: UNPUBLISHED (Judge Clark) | Case(s): 81C-1228 and -1230
Creditor held a prepetition lien on chapter 7 debtors' property. After debtors were discharged in bankruptcy, they requested a lien release from creditor. Creditor agreed to release the lien if debtors agreed to pay an amount that included creditor's claim, which had been discharged in the bankruptcy. Debtors accepted, and began making payments to creditor. When debtors defaulted on their payments, creditor obtained a judgment against them in state court. Debtors then asked the bankruptcy court to declare their post-discharge agreement void, as a violation of 11 U.S.C. § 524(c). The court held § 524(c) to be inapplicable, as it only applies to agreements that include dischargeable debt as consideration, and debtor's personal liability to creditor had already been discharged when the parties entered their agreement. Creditor had provided completely new value, consisting of a release of the lien on debtors' property, in exchange for debtors' agreement to accept personal liability for payments. Debtors' motion was denied.
Title: In re Lettuce Entertain You, Inc. | Date: Mar-26-1985 | Status: UNPUBLISHED See 123.pdf (Judge Clark) | Case(s): 83C-3014
Creditor, the lessor of commercial mall space to chapter 11 debtor, filed a prepetition state court action against debtor seeking unpaid rent and recovery of the leased property. Over a period of more than a year, debtor made a number of payments to the clerk of the state court, in order to retain possession of the property during the lawsuit. When debtor filed its petition in bankruptcy, the amount being held by the state court was approximately $33,000, which was significantly less than the amount creditor was entitled to under the lease. The court considered the parties' conflicting claims to those funds, which it determined to be "cash collateral" under 11 U.S.C. § 363(a), and ruled both that creditor had established its interest in the funds, in satisfaction of § 363(o)(1), and that debtor had not satisfied its burden to provide creditor with adequate protection under § 363(o)(2). Therefore, the court vacated its previous order granting turnover of the funds to debtor, and granted creditor's motion to prohibit debtor's use of the funds.
Title: In re By-Rite Distrib., Inc., 47 B.R. 660 (Bankr.D.Utah) | Date: Mar-12-1985 | Status: PUBLISHED See 55 B.R. 740 (D.Utah 1985) (Judge Allen) | Case(s): 84A-3050
Chapter 11 debtor/lessee filed a motion to assume unexpired leases of non-residential property on the 60th day after the petition was filed, and the matter was not heard by the court until after the 60-day time period required for assumptions, set forth in 11 U.S.C. § 365(d)(4), had expired. The court held that "assumption" requires court approval and, as debtor failed to obtain approval of its motion within the 60-day time period, the leases sought to be assumed had terminated by operation of law and could no longer be assumed. This decision was reversed by the district court in 55 B.R. 740.
Title: In re Jensen-Farley Pictures, Inc., 47 B.R. 557 (Bankr.D.Utah) | Date: Feb-14-1985 | Status: PUBLISHED (Judge Allen) | Case(s): 83A-3391
On applications for interim compensation filed by co-attorneys for an unofficial creditors committee, an accountant for the chapter 11 debtor, and an accountant for the creditors committee, the court considered the following issues: (1) whether compensation for prepetition services by creditors committee counsel and debtor's accountant is allowable as an administrative expense; (2) whether professional fee payments are limited to local hourly rates; (3) whether the committee's accountant represented an interest adverse to the debtor's estate, and is therefore not entitled to compensation; and (4) whether the fees and costs applied for may be otherwise allowed. The court concluded that (1) prepetition legal services to the creditors committee did not substantially benefit the bankruptcy estate and were not compensable by the estate; (2) prepetition accounting services may not be allowed as administrative claims; (3) when out-of-state attorneys practice before the court, they are entitled to charge their customary billing rates; and (4) attorneys' postpetition fees were reasonable, proper, and allowable as administrative expenses, but the accountants' applications required an additional hearing to determine whether they had conflicts of interest.
Title: In re Roberts, 46 B.R. 815 (Bankr.D.Utah)In re Roberts, Inc. | Date: Feb-4-1985 | Status: PUBLISHED See 75 B.R. 402 (D.Utah 1987) [229.pdf] (Judge Clark) | Case(s): 82C-1037 and -1038
Law firm, which had previously represented the corporate and individual debtors, and was still owed fees by the corporation, was approved to represent debtors in their bankruptcy cases. The bankruptcy court raised the issue of conflict of interest for the first time in connection with law firm's fee application for work performed in the bankruptcies. Finding multiple conflicts of interest that law firm had not revealed, the bankruptcy court denied all requested fees. This decision was affirmed in part, and reversed and remanded in part, by the district court in 229.pdf.
Title: Sandy State Bank v. Fetzer (In re Lehwalder) | Date: Feb-4-1985 | Status: UNPUBLISHED (Judge Clark) | Case(s): 82PC-0882
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.
Title: In re Todd | Date: Jan-16-1985 | Status: UNPUBLISHED (Judge Clark) | Case(s): 83C-2153
Chapter 11 debtors submitted a repayment plan proposing a 300-month repayment of their principal secured creditor, mortgagee, to begin immediately. Other secured creditors would also be paid in full, beginning immediately, over a period of 15 months. One secured creditor would be paid in full on the effective date of the plan, while smaller unsecured creditors would be paid over a 7-month period, beginning approximately 18 months after the plan was submitted for approval. Finally, larger unsecured creditors would be paid over a 51-month period, beginning at the end of the 7-month period. All claims would be paid in full, plus interest. Mortgagee objected to the plan, and the court considered whether the plan could be confirmed over the objection of the principal secured creditor by use of the "cramdown" provision of 11 U.S.C. § 1129(b), which the court described as a partial codification of the absolute priority rule. The court held that § 1129(b) does not require full payment of senior creditors before junior creditors may be paid, nor must confirmation be denied where junior creditors will be paid in full before senior creditors, so long as the senior creditors are adequately protected. Adequate protection of mortgagee consisted of its retention of its lien and sufficient cash payments to provide it with the indubitable equivalent of its claim. Applying those rules, debtors' plan satisfied the standards required for confirmation.
Title: Joseph v. Stone (In re Stone) | Date: Dec-10-1984 | Status: UNPUBLISHED See 264.pdf (Judge Clark) | Case(s): 84PC-0988
Limited partners filed a class action adversary complaint against debtor, the partnership's general partner, alleging that debtor had engaged in fraud while acting as a fiduciary, and that limited partners' claims were therefore non-dischargeable. Debtor moved to dismiss the complaint, asserting that plaintiffs had failed both to certify their class action and to plead fraud with particularity. The court refused to dismiss plaintiffs' claims based on failure to certify the class, concluding that dismissal was not appropriate because plaintiffs' claims could be maintained as non-class claims. However, the court granted dismissal pursuant to Fed. R. Civ. P. 9(b) [Bankr. R. 7009], based on plaintiffs' failure to plead fraud with particularity. The court refused to adopt a liberal reading of the claims in the case, because plaintiffs were all parties to the alleged fraudulent transactions, and should therefore be able to describe the facts of the fraud with particularity. The complaint was dismissed without prejudice.