Fayette Bank v. Nesser (In re Nesser)

206 B.R. 371

• Court: United States Bankruptcy Court, W.D. Pennsylvania
• Decided: March 7, 1997
• Docket: Bankruptcy No. 95-23886 JKF; Motion No. JPV-1
• Status: Published

Opinion

ORDER

JUDITH K. FITZGERALD, Bankruptcy Judge.

AND NOW, this 7th day of March, 1997,

WHEREAS Fayette Bank has filed a motion for relief from stay in the above-captioned case;

WHEREAS Fayette Bank was granted relief from stay by a default order in Debt- or’s prior chapter 7 ease;

WHEREAS Fayette proceeded to obtain a judgment in foreclosure, also by default;

WHEREAS thereafter Debtor filed the current chapter 13 case and Fayette Bank has again moved for relief from stay;

WHEREAS, from the evidence adduced at trial on March 5, 20, and 29, 1996, as more fully outlined in this court’s Memorandum Opinion dated March 7th, 1997, at Bankruptcy Nos. 95-23886 and 94-20147, the court finds that

(1) Debtor has no reasonable likelihood of reorganizing his financial affairs through a chapter 13;

(2) Debtor has insufficient funds from current income to provide adequate protection to this creditor;

(3) Debtor needs the property, if this case were to remain in chapter 13, to reorganize and begin operation of a tavern but cannot provide adequate protection to this creditor until the tavern would produce sufficient income, and

(4) Debtor has not satisfied his burden of proving that, in any reasonable time, the tavern would produce sufficient income to fund a plan or to pay this creditor’s claim (as further explained in the Memorandum Opinion dated March 7th, 1997);

(5) this creditor has already proven entitlement to and was granted relief from stay by default in the chapter 7 ease, 94-20147 JLC, and that ruling was not appealed and is not subject to modification nor is there any basis upon which to modify it upon the evidence adduced at trial.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the Motion for Relief from Stay filed on behalf of Fayette Bank is GRANTED.