In Re Baker

195 B.R. 309, 36 Collier Bankr. Cas. 2d 74, 1996 Bankr. LEXIS 495, 1996 WL 239349
CourtUnited States Bankruptcy Court, D. New Jersey
DecidedMay 6, 1996
Docket19-11802
StatusPublished
Cited by4 cases

This text of 195 B.R. 309 (In Re Baker) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Baker, 195 B.R. 309, 36 Collier Bankr. Cas. 2d 74, 1996 Bankr. LEXIS 495, 1996 WL 239349 (N.J. 1996).

Opinion

MEMORANDUM OPINION

STEPHEN A. STRIPP, Bankruptcy Judge.

This is the court’s opinion on a motion by Charles Forman, the trustee for the estate of Alan Baker Sr., to hold Vincent Layton (hereinafter “Layton”) in contempt. The grounds for the trustee’s motion are alleged violations by Layton of an order entered on January 3, 1996 regarding the sale of assets to a third party who outbid Layton for those assets. This court has subject matter jurisdiction under 28 U.S.C. §§ 1334(b), 151 and 157(a). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (0). The court’s findings of fact and conclusions of law are as follows.

FINDINGS OF FACT

The following facts are undisputed. On November 6, 1995, the trustee filed a motion for the sale of both the debtor’s real property located at 1022 Lacey Road in Forked River, New Jersey and the operating assets of Southern New Jersey Funeral Services, Inc. (hereinafter “Southern”) to J. Patrick Grow-ney (hereinafter “Growney”). 1 The notice of motion and the notice under Fed.R.Bankr.P. 2002(a) indicated that the real property and all physical assets, goodwill, trade names, licenses and contract rights of Southern were to be included in the sale. Layton, the operator of the funeral home, objected to the sale and made a competing bid.

On December 4, 1995, the court conducted a hearing regarding the sale. Layton appeared at the hearing to bid against Growney for the acquisition of the property. Before the court conducted competitive bidding, however, the parties agreed that the sale would not include the trade name, “Layton’s Home for Funerals.” After Growney submitted the highest and final bid of $600,-000.00 for the real property and $120,000.00 for the personal property, the court inquired as to the items of personal property included in the sale. The trustee’s counsel stated that he believed the personal property included *313 all items listed on an inventory sheet which was prepared in April or May of 1995. At that point, Layton’s counsel interjected and argued that certain items listed on the sheet were not owned by Southern. Layton’s counsel stated that he did not know the precise items that were not owned by Southern and that he would submit a list of those items.

Before ruling on the sale, the court directed the parties to discuss and decide which assets were to be included in the sale. After the parties had conferred, they advised the court that no one had a copy of the inventory sheet. Nonetheless, the trustee’s counsel stated that Layton had provided Growney with a list of items that Layton would claim as his personal property. These items included a globe, a deacon bench, six chairs in a business office, a file cabinet, all art work contained in wooden frames, and all motor vehicles. Layton also asserted that certain additional “knickknacks” were also to be excluded. Layton’s counsel represented that:

[i]n terms of the significant assets, rugs, embalming tables, things of that nature, there is no dispute about the fact that [these] items belong as corporate assets. The list which has been given to [Growney] and to [the trustee] is basically all inclusive, but for certain knickknack items. Again, we are not talking about major items.... To indicate that there is any attempt to say, well, there are significant other assets, that is just not right.

Record at 51 (Dec. 4, 1995). The court then inquired whether inventory, such as caskets, and supplies were included. Both the trustee and Growney indicated that inventory and supplies were included, however, they noted that caskets are usually held on consignment. Id. at 65.

Based on the apparent agreement between the parties and after considering all objections, the court overruled the objections and authorized the sale to Growney. The court then directed counsel for the trustee to submit an order within five days.

Immediately following the hearing, the trustee’s counsel faxed a copy of the inventory sheet to Layton’s counsel and requested any comments before December 8, 1995. The trustee’s counsel again contacted Lay-ton’s counsel on December 7, 1995, and indicated that he would be submitting the proposed order the following day with or without Layton’s comments regarding the inventory sheet. Layton’s counsel did not respond to the trustee’s requests. As a result, the order was submitted to the court by the trustee on or about December 8,1995.

Growney objected in a timely manner to the proposed order, requesting that an additional provision be included. Based on that objection, the court instructed the trustee to submit a revised order accommodating Grow-ney’s objections. The trustee transmitted the revised order to the court and to Lay-ton’s counsel on December 20,1995.

The proposed order submitted on December 20, 1995 noted that the date for consummating the sale was set for January 16,1996. It also stated that the sale consisted of the real property at 1022 Lacey Road and the physical assets, good will, trade names, licenses and contract rights of Southern. In addition, the proposed order included items set forth in detail on an exhibit, as well as Southern’s current business phone number(s), pre-need files, funeral records, licenses and contract rights. The annexed exhibit was the identical inventory sheet that the trustee’s counsel forwarded to Layton’s counsel on December 4,1995.

On December 15, 1995, Layton filed an objection to the form of order submitted by the trustee on December 8, 1995. 2 He filed the objection before the court entered the order approving the sale and before the trustee submitted the proposed December 20, 1995, order. Layton’s objection was based on several grounds. Initially, he argued that the trustee submitted the order to the court without affording him a chance to review the items included in the inventory sheet to determine which assets did not belong to Southern. Layton’s objection did not *314 specify, however, the precise items he claims did not belong to Southern.

Layton also objected to the provisions in the proposed order authorizing the sale of Southern’s phone number, pre-need files and funeral records because he alleged that they were not assets of Southern. Layton argued that the subject phone number was not an asset of Southern because the phone company billed all charges directly to himself and Layton’s Home for Funerals. As to the pre-need files, Layton claimed that they consist of previously arranged funeral services that Layton’s Home for Funerals has not provided and are owned by clients who have contracted with the funeral home. 3

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Bluebook (online)
195 B.R. 309, 36 Collier Bankr. Cas. 2d 74, 1996 Bankr. LEXIS 495, 1996 WL 239349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-baker-njb-1996.