In re Behimer

119 B.R. 667, 1990 Bankr. LEXIS 2105, 1990 WL 146041
CourtUnited States Bankruptcy Court, W.D. Arkansas
DecidedOctober 2, 1990
DocketNo. 87-15145
StatusPublished
Cited by1 cases

This text of 119 B.R. 667 (In re Behimer) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Behimer, 119 B.R. 667, 1990 Bankr. LEXIS 2105, 1990 WL 146041 (Ark. 1990).

Opinion

MEMORANDUM OPINION

ROBERT F. FUSSELL, Chief Judge.

Pending before the Court is a motion filed by Neal Behimer and Sandra Behimer (debtors), seeking to add creditors after their chapter 7 discharge order. The debtors are seeking to add the claims of Rhonda Lou Ames, Ladene Nielsen, Martha Ann Arey [now Martha Ann Wills], J.B. Carrol, and Duane C. Carrol (Carrol-creditors). These claims are based on a September, 1989 judgment in the amount of $29,945.23 plus interest thereon at the rate of $8.23 per day from July 1, 1988 together with attorneys’ fees in the amount of $2,995.00; real property taxes in the amount of $161.79; and costs for abstract, and title work in the amount of $258.00. This judgment was entered against the debtors after the debtors’ discharge. The Carrol-credi-tors have objected to the motion, and contend that the debtors are barred at this stage of the proceedings from adding any additional claims. The Court held hearings on the motion on April 17 and 30, 1990.

Jurisdiction

The Court has jurisdiction over this pending matter pursuant to 28 U.S.C. § 1334. Further, the above proceeding is a core proceeding within 28 U.S.C. § 157(b)(2). The following memorandum opinion constitutes findings of fact and conclusions of law in accordance with Bankruptcy Rule 7052.

Findings of Fact

On July 10, 1981, Nora Aline Carrol sold to Neal L. Behimer, under a document entitled “Land Contract and Escrow Agreement”, 14.13 acres in Washington County, Arkansas, for $20,500.00. The terms of the contract provided for a $1,000.00 down-payment, and for the remaining $19,500.00 with interest thereon, at the rate of 10% per annum to be paid in monthly payments of $175.00 with two balloon payments due in 1985.

On August 21, 1981, Nora Aline Carrol and Neal L. Behimer entered into another land contract and escrow agreement wherein Carrol sold to Behimer an additional 10 acres in Washington County, Arkansas, for $20,000.00. The terms of this agreement provided for a $3,500.00 down-payment, and for the remaining $16,500.00 with interest thereon, at 10% per annum, to be paid in monthly payments of $150.00 with a balloon payment due in 1991.

On August 30, 1981, Neal L. Behimer sold to Henry Mahler, under a document entitled “Land Contract,” the 24.13 acres which Behimer had previously purchased from Nora Aline Carrol. The purchase-price, interest, and payment terms of the Behimer-Mahler contract were virtually identical to those contained in the Behimer-Carrol land contracts and escrow agreements. Behimer testified at the bankruptcy hearing that he purchased the aforesaid lands from Nora Aline Carrol for Mahler.

The debtors filed their chapter 7 petition on May 22,1987. The debtors filed “Schedules” and “Statement of Affairs” on June 8, 1987, reflecting that the case was an asset case. The Carrol-creditors were not listed in these documents. On June 18, 1987, the Court set a September 25, 1987 bar date for filing objections pursuant to 11 U.S.C. §§ 523(c) and 727. On January 20, 1988, the Court set an April 21, 1988 bar date for the filing of claims against the estate. There is no evidence that the Car-rol-creditors ever received any notice of these bar dates.

On September 14, 1988, pursuant to 11 U.S.C. § 348(d) of the Bankruptcy Code, the Court entered an order discharging the debtors from all personal liability for debts existing on the date of the commencement of this case, or deemed to have existed on [669]*669such date. On March 31, 1989, a complaint was filed in the chancery court of Washington county by the Carrol-creditors against Behimer and Mahler, seeking foreclosure of the above real estate, and a deficiency judgment on the contracts of sale.

The evidence reflects that from the time of the Behimer-Carrol land purchases in 1981, Behimer had.no involvement in the subject land-contracts until 1989. Behimer made no payments on the land contracts, and paid no taxes on the land. Mahler made payments directly to Nora Aline Car-rol or her estate on behalf of Behimer. Further, no demand was ever made upon Behimer for any default in payments by Mahler. Behimer had no contact in regard to the subject properties until attorney Wayne Ball contacted him by telephone on April 1, 1989.

During this April 1, 1989 telephone conversation, Mr. Ball identified himself as an attorney for the Carrol-creditors, who were heirs of Nora Aline Carrol, and said that he was filing suit against Behimer and Mahler in order to clear the title on the Washington county property. Behimer testified that he made an offer to Ball to deed the property back to the Carrol-creditors, and that he would see if he could get Mahler to do the same. Ball indicated to Behimer that he thought this would satisfy his clients. Behimer testified that during the conversation he informed Ball that Behimer had filed bankruptcy.

Behimer executed warranty deeds on the properties in favor of the Carrol-creditors. Neither Ball nor Behimer, however, could locate Mahler in order for Mahler to execute warranty deeds on the property.

Behimer testified at the bankruptcy hearing that he subsequently learned that the Nora Aline Carrol estate and Mahler had re-negotiated the land contracts in 1985, and that they had agreed to an extension of Mahler’s payments. Behimer was not contacted in regard to these negotiations. Further, Behimer was not called upon by the Nora Aline Carrol estate to make payments under this new agreement. Behimer stated, at the bankruptcy hearing, that at the time of the filing of his bankruptcy petition, he did not list the two contracts on his schedules as he believed the Nora Aline Carrol estate had relieved him from the debts because it had re-negotiated the contracts directly with Mahler, and had not included Behimer in these negotiations.

Ball testified that he had been contacted by the Carrol-creditors to represent them in the probate of the estate of Nora Aline Carrol. Ball testified that he prepared the foreclosure complaint, filed it, and called Mr. Behimer in regard to the subject property. He stated that he explained to Mr. Behimer that his efforts were directed toward returning the property to the Carrol-creditors at a minimum of cost. Ball stated that he discussed with Behimer the possibility of Behimer and Mahler executing warranty, or quitclaim deeds, conveying the lands back to the Carrol-creditors. Ball testified that Behimer was unsuccessful in obtaining any deeds from Mahler as he could not locate Mahler. Ball stated that Behimer had previously forwarded two warranty deeds to Ball, and that on April 10, 1989, Ball returned the deeds to Behimer, and proceeded with the lawsuit. Ball testified that he had no recollection of Be-himer informing him of the bankruptcy proceedings in the April, 1989 telephone conversation. Ball stated that to the best of his recollection, Attorney James A. Pe-nix, Jr.

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Cite This Page — Counsel Stack

Bluebook (online)
119 B.R. 667, 1990 Bankr. LEXIS 2105, 1990 WL 146041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-behimer-arwb-1990.