Coslow v. Reisz (In re Coslow)

573 B.R. 717, 2017 Bankr. LEXIS 2111
CourtUnited States Bankruptcy Court, W.D. Kentucky
DecidedJuly 28, 2017
DocketCASE NO. 16-32291; A.P. NO. 16-3096
StatusPublished
Cited by1 cases

This text of 573 B.R. 717 (Coslow v. Reisz (In re Coslow)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coslow v. Reisz (In re Coslow), 573 B.R. 717, 2017 Bankr. LEXIS 2111 (Ky. 2017).

Opinion

MEMORANDUM ON MOTIONS FOR SUMMARY JUDGMENT

Alan C. Stout, United States Bankruptcy Judge

This adversary proceeding was commenced to determine the bankruptcy estate’s interest in real property. The matters under advisement are the cross motions for summary judgment filed by Plaintiff/ Debtor Carl Frederick Coslow (“Plaintiff’), and Defendant William Stephen Reisz, the Chapter 7 Trustee (“Trustee”). In addition to the cross motions for summary judgment and supporting exhibits, the parties have filed Stipulated Facts. Upon consideration of the summary judgment motions, the supporting documentation, and the Stipulated Facts, the Court holds that summary judgment should be granted in favor of the Plaintiff.

I. STATEMENT OF JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334, and it is a core proceeding under 28 U.S.C. § 157(b)(2)(E). Venue of this adversary proceeding in this Court is proper under 28 U.S.C. § 1409(a), as this proceeding arises in and relates to the Plaintiffs Chapter 7 case pending in this District. Furthermore, this Court may hear and finally adjudicate this matter because it is a core proceeding pursuant to 28 U.S.C. § 157(b) and there is no objection to venue or jurisdiction over the parties.

II. SUMMARY JUDGMENT STANDARD

As stated above, the parties filed Stipulated Facts, demonstrating that there is no genuine dispute as to any material facts. The Court can render summary judgment only when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Summary judgment is appropriate when the record taken as a whole, and viewed in the light most favorable to the nonmoving party, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). The party seeking summary judgment bears the burden initially of showing that there is no genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), The moving party may rely on the pleadings, depositions, answers to interrogatories, and admissions on file. Id. When a party fails to make a showing sufficient to establish the existence of an element essential to that party’s case, summary judgment should be granted. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548).

Once the moving party has made a proper motion for summary judgment, the non-moving party may not rely upon mere allegations to rebut the motion, but instead must set forth specific facts demonstrating that a genuine issue of material fact exists for trial. Fed. R. Bankr. P. R. Civ. P. 56(e). The nonmoving party must produce more than a “mere scintilla” of evidence to support its claim, once a properly supported [719]*719motion for summary judgment has been made.

III. FACTS

The parties stipulated1 to the following facts for the purpose of summary judgment:

1. The Plaintiff and his non-debtor wife, Merilyn S. Coslow, have at all relevant times owned as joint tenants with rights of survivorship the real property located at 7908 Sutherland Farm Road, Prospect, Kentucky 40059 (the “Residence”).

2. The Residence is encumbered by a traditional first mortgage in favor of U.S. Bank National Association, as trustee for WAMU Mortgage Pass-Through Certificates Series 2003-S8 (the “First Mortgage”).

3. For many years, the Plaintiff owned and managed Republic Industries International, Inc. (“Republic”), a Kentucky Corporation headquartered in Louisville which served businesses engaged in coal mining.

4. For several years prior to June 2014, Stock Yards Bank and Trust Company (“Stock Yards”) financed Republic’s operations ■ pursuant to multiple loan agreements by and among Republic, the Plaintiff, and Stock Yards, which had been variously novated and modified from time to time (collectively and as amended from time to time, the “Loans”).

5. In June 2014, Republic faced mounting losses and a default to Stock Yards under the Loans, which had been modified previously when Republic first became unable to service them by their terms. In coordination with Stock Yards, the Plaintiff resolved to liquidate Republic. At that time, Republic owed Stock Yards approximately $4,540,384.89, which was personally guaranteed by the Plaintiff but not by Mrs. Coslow.

6. During the ensuing year and a half, the Plaintiff made his best effort to maximize the value of Republic’s assets and to mitigate Stock Yards’s losses and the Plaintiffs liability under the personal guarantee of the Loans. Principally, this included the November 2014 sale of Republic’s Highwall Mining Division, which encompassed significant equipment and intellectual ' property, to JBLCO, LLC (“JBL”). The November 2014 sale to JBL is referred to hereafter as the “Asset Purchase Agreement.”

7. By December 2015, the Plaintiff had caused Republic to liquidate all its assets with realizable value, having assigned the receivables due from JBL under the Asset Purchase Agreement to Stock Yards.

8. On or about December 24, 2015, in recognition of the Plaintiffs cooperation in the orderly unwinding of Republic, Stock Yards and the Plaintiff entered into a final agreement whereby:

a. Stock Yards reduced the Plaintiffs liability for his personal guarantees under the Loans from an amount in excess of one million dollars to the amount then owed by JBL under the Asset Purchase Agreement (viz. $425,000.00); in exchange for
b. (i) the Plaintiffs grant to Stock Yards of a second mortgage against the Residence in the maximum amount of $275,000.00 (the “Second Mortgage”), securing the JBL payments under the Asset Purchase Agreement; (ii) the" Plaintiffs continued efforts to cause Republic to [720]*720perform its- covenants under the Asset Purchase Agreement; and .(iii) the Plaintiff’s ongoing efforts to facilitate collection on .behalf of Stock Yards from JBL.'

9. The' Second Mortgage provides that Mrs. Coslow

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Bluebook (online)
573 B.R. 717, 2017 Bankr. LEXIS 2111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coslow-v-reisz-in-re-coslow-kywb-2017.