East Plains Development Corp. v. King (In re Faires)

123 B.R. 397, 8 Colo. Bankr. Ct. Rep. 15, 1991 Bankr. LEXIS 69
CourtDistrict Court, D. Colorado
DecidedJanuary 22, 1991
DocketBankruptcy No. 90-B-05655-C; Adv. No. 90-1154-SBB
StatusPublished
Cited by4 cases

This text of 123 B.R. 397 (East Plains Development Corp. v. King (In re Faires)) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
East Plains Development Corp. v. King (In re Faires), 123 B.R. 397, 8 Colo. Bankr. Ct. Rep. 15, 1991 Bankr. LEXIS 69 (D. Colo. 1991).

Opinion

MEMORANDUM OPINION AND ORDER

SIDNEY B. BROOKS, Bankruptcy Judge.

THIS MATTER comes before the Court on Plaintiff’s Motion for Default Judgment filed September 24, 1990, Defendant Citizens Bank of Westminster’s Objection [399]*399thereto filed October 5, 1990, Bank’s Motion for Summary Judgment filed November 21, 1990, Plaintiffs Objection to Bank’s Motion for Summary Judgment filed December 5, 1990, and Bank’s Reply to Plaintiff’s Objection to Motion for Summary Judgment filed December 14, 1990. The Court, has fully reviewed the file, pleadings, and memoranda.

The general issue before the Court is a determination of legal title to property which was transferred between, or among, (1) Jack Faires, the Chapter 7 Debtor and Defendant in this action, (2) a closely-held and related corporate entity, the Plaintiff, East Plains Development Corporation (“Plaintiff” or “EPDC”), and (3) the Debt- or’s son, James Paires, prior to this, Debt- or’s second, bankruptcy case. Plaintiff filed the Complaint in this action claiming title to certain property held by the Trustee and also claimed by a creditor of the Debt- or, Defendant and intervenor, Citizens Bank of Westminster (“Bank”). EPDC claims title, requests turnover of the property and, in effect, asks for declaratory judgment .on the parties’ rights and title to the vagabond property.

The Court concludes that, based on the doctrine of res judicata, the Debtor transferred property, pre-petition, to hinder, delay or defraud creditors and, consequently, title to the subject property lies with the Trustee. The Court further concludes that an award of attorney’s fees in favor of the Bank, as sanctions against the Plaintiff, is required and proper pursuant to B.R. 7011 and Rule 11, F.R.Civ.P.

I.FACTUAL BACKGROUND.

The following is a chronology of events leading up to the filing of the instant adversary proceeding:

August 12, 1985: Debtor executed a promissory note in favor of the Bank or its predecessor-in-interest.
Sometime thereafter: The promissory note fell into default.
August, 1986: Debtor filed a Chapter 11 Bankruptcy Petition (Case No. 86-B-06123-M).
September 24, 1987: September 29, 1987: Debtor’s Chapter 11 case was dismissed by stipulation. Plaintiff was incorporated in Colorado. Secretary of State records reveal the following officers and directors:
President and Director — James Faires (Debtor’s son).
Treasurer and Director — Jeanne Faires (Debtor’s daughter-in-law and James Faires’ wife); and
Director — Esther Faires (Debtor’s wife).
November 12, 1987: Bank filed suit against Debtor on the 1985 promissory note in Adams County District Court, Civil Action No. 87-CV-2322.
December 14, 1987: Debtor conveyed* his ownership interests in the following assets to Plaintiff:
1. Barth Motor Home (also referred to as an RY or Winnebago), VIN # S104RS00017; Colorado Title No. 12M546573;
2. 1982 Freightliner Semi-Tractor, VIN # 1FUPYD YB6CP211535; Colorado Title No. 12M530206; and
3. Fruehauf End-Dump Trailer; VIN # 1H4D02729CF020901; Colorado Title No. 12M529413.
*The vehicles were allegedly conveyed in exchange for work done by James Faires during the course of the year during which Debtor was in Chapter 11. The Colorado state court indicated that the bankruptcy pleadings reveal that James Faires, through Jeanne Faires, was paid $3,600.00 per month on a draw account. The court was presented no evidence [400]*400regarding whether and when such a draw was available, whether and when those payments were made, and whether and how much work was performed by James Faires. (Transcript of April 20, 1990 hearing, at p. 5.)
May 11, 1988: Summary judgment was entered in favor of the Bank and against Debtor in 87-CV-2322 for $163,686.54 plus statutory interest after February 2, 1988.
September 2, 1988: Bank filed suit in state court against Debtor and Plaintiff under Colorado fraudulent conveyance law in Adams County District Court, Civil Action No. 88-CV-1811.
April 20, 1990: Following trial, judgment was entered in favor of the Bank and against Debtor and Plaintiff in 88-CV-1811. The Court ordered the reinstatement of Debtor’s name to the titles of the vehicles. The Court found the previous title transfer void as fraudulently made to avoid attachment by Bank. The judgment was self-executing and was not appealed.1
May 2, 1990: By Bill of Sale, Plaintiff reconveyed the vehicles to Debtor.
May 4, 1990: Debtor, Jack Faires, filed a Chapter 7 Bankruptcy Petition
(90-B-05655-C). On page two of his Statement of Financial Affairs for Debtor Not Engaged in Business, he states in regard to the Bill of Sale, “Debtor denies that he has any interest whatsoever in said property and disputes any claim that he does.”
July 30, 1990: Plaintiff filed the present “Complaint to Determine Ownership and to Reclaim Property,” alleging that the Trustee is holding the three vehicles “against the lawful ownership interest” of Plaintiff and requesting that the Court order the immediate release of the vehicles to Plaintiff (90-1154-SBB).
August 7, 1990: Without knowledge of Plaintiffs action, the Bank filed a Complaint requesting denial of discharge (90-1195-PAC).

Plaintiffs motion to consolidate the two adversary proceedings was denied (November 7, 1990) and the Bank was given leave to intervene in the present proceeding (November 7, 1990). Bank filed its Answer on November 16, 1990 generally denying that any ownership interest in the vehicles lies in Plaintiff and set forth Rule 12(b)(6), F.R. Civ.P., res judicata and lack of consideration as affirmative defenses.

The predicate motions for this Opinion are:

1. Plaintiffs Motion for Default Judgment filed September 24, 1990, based upon Debtor/Defendanf s failure to answer or otherwise respond.2 Bank ob[401]*401jected on October 5, 1990 based upon its then outstanding motion for leave to intervene; and
2. Bank’s Motion for Summary Judgment filed November 21, 1990. Plaintiff objected on December 5, 1990 and Bank replied on December 14, 1990.

II. DEFAULT JUDGMENT.

The Bank has been allowed to intervene as a Defendant pursuant to Order of Court entered November 7, 1990 and has timely answered. The Motion for Default Judgment cannot be granted against the original Defendants without adversely affecting Bank’s rights in this case. Pleadings filed are timely and proper. The Motion for Default Judgment shall be denied.

III. SUMMARY JUDGMENT.

This Court must determine whether any genuine issue of material fact exists. See, e.g., R-G Denver, Ltd. v. First City Holdings of Colorado, Inc., 789 F.2d 1469, 1471 (10th Cir.1986);

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Bluebook (online)
123 B.R. 397, 8 Colo. Bankr. Ct. Rep. 15, 1991 Bankr. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/east-plains-development-corp-v-king-in-re-faires-cod-1991.