Heidkamp v. Fifth Third Bank (In Re Heidkamp)

M.D. Florida

Heidkamp v. Fifth Third Bank (In Re Heidkamp)

326 B.R. 472, 18 Fla. L. Weekly Fed. B 283, 2005 Bankr. LEXIS 1039, 2005 WL 1362731

CourtUnited States Bankruptcy Court, M.D. Florida

DecidedJune 7, 2005

DocketBankruptcy No. 9:04-BK-22830-ALP, Adversary No. 9:05-AP-00170-ALP

StatusPublished

This text of 326 B.R. 472 (Heidkamp v. Fifth Third Bank (In Re Heidkamp)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Heidkamp v. Fifth Third Bank (In Re Heidkamp), 326 B.R. 472, 18 Fla. L. Weekly Fed. B 283, 2005 Bankr. LEXIS 1039, 2005 WL 1362731 (Fla. 2005).

Pincite

Opinion

ORDER ON MOTION FOR SUMMARY JUDGMENT (Doc. No. 9)

ALEXANDER L. PASKAY, Bankruptcy Judge.

THE MATTER under consideration in this Chapter 13 case of Thomas S. Heid-kamp (Debtor) is a Motion for Summary Judgment filed by the Debtor who seeks a determination as a matter of law that the Fifth Third Bank, Florida, has no valid security interest in any of the assets of the Debtor. It is the contention of the Debtor that the facts relevant to the resolution of these issues are without dispute, there are no genuine issues of material fact and that he is entitled to a judgment in his favor as a matter of law. In opposition to the Debtor’s Motion for Summary Judgment, the Bank contends that there are material issues of fact and they have not had an *473 opportunity to make full discovery on the matter.

Having considered the matter, the record and heard argument of counsel, this Court is satisfied that the Bank should be entitled to file an Amended Answer and assert the affirmative defenses of judicial estoppel and res judicata. Therefore, it is inappropriate to dispose of the issues at this time by way of summary judgment, and the matter should be resolved only after the Court has received competent evidence in support of and in opposition to the respective positions of the parties.

Based on the foregoing, the Bank shall be entitled to file an Amended Answer, if it so deems to be advised, within ten (10) days of the date of the entry of this Order. If the Bank files an Amended Answer, the matter shall be set down promptly for final evidentiary hearing, unless any of the parties file a Motion for Summary Judgment within ten (10) days of the Amended Answer filed by the Bank.

Accordingly, it is

ORDERED, ADJUDGED AND DECREED that the Defendant, Fifth Third Bank is granted leave to file an Amended Answer within ten (10) days from the dáte of the entry of this Order. It is further

ORDERED, ADJUDGED AND DECREED that the Debtor’s Motion for Summary Judgment be, and the same is hereby, denied without prejudice, with leave to renew the same within ten (10) days after the Bank files its Amended Answer. It is further

ORDERED, ADJUDGED AND DECREED that if no renewed Motion for Summary Judgment is filed by any of the parties the matter is to be set down for final evidentiary hearing to be heard by the undersigned on _, 2005, beginning at_m. at the United States Bankruptcy Courthouse, Fort Myers, Federal Building and Federal Courthouse, Room 4-117, Courtroom D, 2110 First Street, Fort Myers, Florida.

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ORDER ON MOTION FOR SUMMARY JUDGMENT (Doc. No. 9)

ALEXANDER L. PASKAY, Bankruptcy Judge.

THE MATTER under consideration in this Chapter 13 case of Thomas S. Heid-kamp (Debtor) is a Motion for Summary Judgment filed by the Debtor who seeks a determination as a matter of law that the Fifth Third Bank, Florida, has no valid security interest in any of the assets of the Debtor. It is the contention of the Debtor that the facts relevant to the resolution of these issues are without dispute, there are no genuine issues of material fact and that he is entitled to a judgment in his favor as a matter of law. In opposition to the Debtor’s Motion for Summary Judgment, the Bank contends that there are material issues of fact and they have not had an *473 opportunity to make full discovery on the matter.

Having considered the matter, the record and heard argument of counsel, this Court is satisfied that the Bank should be entitled to file an Amended Answer and assert the affirmative defenses of judicial estoppel and res judicata. Therefore, it is inappropriate to dispose of the issues at this time by way of summary judgment, and the matter should be resolved only after the Court has received competent evidence in support of and in opposition to the respective positions of the parties.

Based on the foregoing, the Bank shall be entitled to file an Amended Answer, if it so deems to be advised, within ten (10) days of the date of the entry of this Order. If the Bank files an Amended Answer, the matter shall be set down promptly for final evidentiary hearing, unless any of the parties file a Motion for Summary Judgment within ten (10) days of the Amended Answer filed by the Bank.

Accordingly, it is

ORDERED, ADJUDGED AND DECREED that the Defendant, Fifth Third Bank is granted leave to file an Amended Answer within ten (10) days from the dáte of the entry of this Order. It is further

ORDERED, ADJUDGED AND DECREED that the Debtor’s Motion for Summary Judgment be, and the same is hereby, denied without prejudice, with leave to renew the same within ten (10) days after the Bank files its Amended Answer. It is further

ORDERED, ADJUDGED AND DECREED that if no renewed Motion for Summary Judgment is filed by any of the parties the matter is to be set down for final evidentiary hearing to be heard by the undersigned on _, 2005, beginning at_m. at the United States Bankruptcy Courthouse, Fort Myers, Federal Building and Federal Courthouse, Room 4-117, Courtroom D, 2110 First Street, Fort Myers, Florida.

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Bluebook (online)

326 B.R. 472, 18 Fla. L. Weekly Fed. B 283, 2005 Bankr. LEXIS 1039, 2005 WL 1362731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heidkamp-v-fifth-third-bank-in-re-heidkamp-flmb-2005.