Adams v. Pugliese (In re Sevitski)

151 B.R. 590, 28 Collier Bankr. Cas. 2d 839, 1993 Bankr. LEXIS 293, 23 Bankr. Ct. Dec. (CRR) 1709
CourtUnited States Bankruptcy Court, N.D. Oklahoma
DecidedFebruary 24, 1993
DocketBankruptcy No. 92-00595-W; Adv. No. 92-0143-W
StatusPublished
Cited by1 cases

This text of 151 B.R. 590 (Adams v. Pugliese (In re Sevitski)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. Pugliese (In re Sevitski), 151 B.R. 590, 28 Collier Bankr. Cas. 2d 839, 1993 Bankr. LEXIS 293, 23 Bankr. Ct. Dec. (CRR) 1709 (Okla. 1993).

Opinion

[591]*591ORDER GRANTING IN PART

“TRUSTEE’S MOTION FOR SUMMARY JUDGMENT” AND DENYING DEFENDANTS’ “MOTION FOR SUMMARY JUDGMENT ...”

MICKEY DAN WILSON, Chief Judge.

In this adversary proceeding under 11 U.S.C. § 547, both plaintiff and defendants move for summary judgment. Upon consideration of the record herein, the Court determines, concludes and orders as follows.

Plaintiff is the Trustee of the above-styled case under 11 U.S.C. Chapter 7, hereinafter referred to as “the Trustee”. Defendants are seven individuals, some of whom are surnamed Pugliese, and all of whom are hereinafter referred to collectively as “Pugliese.”

The record in this case is complicated by Pugliese’s second amended answer. Said document denies certain matters which were admitted in Pugliese’s previous answers, on the strength of which admissions the Trustee rested his motion for summary judgment; and also denies certain matters, which Pugliese now admits in his own motion for summary judgment. Despite these complications, the Court believes that the following facts are not seriously disputed, and finds them to be substantially uneon-troverted pursuant to F.R.Civ.P. 56(d) adopted by F.R.B.P. 7056. The Court states separately therefrom its conclusions of law.

SPECIFICATION OF UNDISPUTED FACTS

On April 16, 1991, Pugliese sued Joseph T. Sevitski, Jr. (“Sevitski”), Sevitski and Associates, Inc. (“Sevitski Inc.”), Sevitski and Associates Ltd. (“Sevitski Ltd.”), Welcome Oil Corporation (“Welcome”), Tall-grass Petroleum Corporation (“Tallgrass”), Charles Dugger (“Dugger”) and Mik Chester (“Chester”) in the United States District Court for the Northern District of Oklahoma (“the District Court”). Sevitski was an officer of Sevitski Inc. and Tallgrass. This lawsuit is hereinafter referred to as “the District Court action;" and defendants therein are hereinafter sometimes referred to as “the District Court defendants.” Pugliese sued all of the District Court defendants for securities fraud and common law fraud. Pugliese also sued two of them, Sevitski and Sevitski Inc., for breach of contract.

On August 2, 1991, the District Court granted judgment by default on Pugliese’s counts for securities fraud and common law fraud against Sevitski, Sevitski Inc., Sevitski Ltd., and Dugger. The District Court did not grant such judgment against Tallgrass, because Tallgrass was then in bankruptcy. On the same date, the District Court also granted judgment by default on Pugliese’s count for breach of contract against Sevitski and Sevitski Inc. The District Court granted its “... judgment ... [a]gainst all ... defendants, jointly and severally, and in favor of the several plaintiffs ...,” Trustee’s motion ex. B. The judgment specified monetary amounts which need not be recited here, save to note that the awards for the securities fraud count and the fraud count were identical as to all plaintiffs.

Between August 6 and August 12, 1991, Pugliese filed Affidavits of Judgment in the counties of Coal, Washington, Okmul-gee, Rogers, and Mayes, all in the State of Oklahoma. By so doing, Pugliese perfected judgment liens upon any real property of the District Court defendants located in those counties.

One of Pugliese’s judgment liens attached to Sevitski’s previously unencumbered real property in Mayes County, near Pryor, Oklahoma (“the Pryor property”). For purposes of this opinion, the Court presumes that another lien attached to Sev-itski Inc.’s previously unencumbered interest in the Chastain-Hissom Leasehold and Gas Tap in Okmulgee County, Oklahoma (“the Gas Tap”).

Although Pugliese did perfect these judgment liens, Pugliese has never been paid any money or received any other prop[592]*592erty of value in satisfaction of the judgment in the District Court action.

On February 14, 1992, a petition for involuntary relief against Sevitski under 11 U.S.C. Chapter 7 was filed in this Court. An order for relief was entered on March 5, 1992; and the Trustee was appointed to take charge of this bankruptcy estate.

With permission of this Court, the Trustee sold the Pryor property for $40,000.00, and sold the Gas Tap for $65,000.00, both free and clear of liens or other interests, but without prejudice to any rights Pug-liese might have in and to the proceeds. The Trustee now holds those proceeds in escrow, pending the outcome of this adversary proceeding.

Any conclusions of law which ought more properly to be specifications of undisputed facts are adopted and incorporated herein by reference.

CONCLUSIONS OF LAW

This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(F), 11 U.S.C. §§ 547, 550.

The Trustee brings this complaint under 11 U.S.C. § 547(b), which provides for the avoidance of preferential transfers, and § 550(a), which provides for the recovery of avoided transfers. § 547(b) provides as follows:

Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.

§ 550(a) provides as follows:

Except as otherwise provided in this section, to the extent that a transfer is avoided under section .,. 547 ... of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from—
(1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or
(2) any immediate or mediate transferee of such initial transferee.

No affirmative defenses are raised under § 547(c), nor any exceptions under other subdivisions of § 550(b). This dispute concerns the terms of §§ 547(b), 550(a) alone.

§ 547(b)(4)(B) refers to an “insider.” This term is defined by 11 U.S.C. § 101(31).

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151 B.R. 590, 28 Collier Bankr. Cas. 2d 839, 1993 Bankr. LEXIS 293, 23 Bankr. Ct. Dec. (CRR) 1709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-pugliese-in-re-sevitski-oknb-1993.