In re Engels

536 B.R. 529, 74 Collier Bankr. Cas. 2d 347, 2015 Bankr. LEXIS 2963, 2015 WL 5178194
CourtUnited States Bankruptcy Court, N.D. New York
DecidedSeptember 3, 2015
DocketCase No.: 12-60503
StatusPublished

This text of 536 B.R. 529 (In re Engels) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Engels, 536 B.R. 529, 74 Collier Bankr. Cas. 2d 347, 2015 Bankr. LEXIS 2963, 2015 WL 5178194 (N.Y. 2015).

Opinion

MEMORANDUM-DECISION AND ORDER

Honorable Diane Davis, United States Bankruptcy Judge

This contested matter is before the Court for decision upon motion of Clark-son University (“Clarkson”) seeking entry of an order pursuant to 11 U.S.C. §§ 105, 362(d)(1) and 363 and Federal Rules of Bankruptcy Procedure 4001 and 6004 modifying the automatic stay to enforce a post-petition state court judgment directing specific performance by James P. Engels (“Debtor”); to compel Debtor to comply with the post-petition state court judgment requiring Debtor to obtain bankruptcy court approval for the sale of real property; and to compel Debtor (i) to sell certain real property located at 152 Maple Road in Potsdam, New York (the “Property”), pursuant to the terms of a certain asset purchase agreement and (ii) to consummate all transactions related to the same (the “Amended Motion,” ECF No. 61).

Debtor filed a Voluntary Petition for chapter 13 relief under Title 11 of the United States Code1 and a chapter 13 plan on March 23, 2012. (ECF No. 1.) Debtor thereafter filed three amended chapter 13 plans on October 29, 2012 (ECF No. 33), November 21, 2012 (ECF No. 45), and December 14, 2012 (ECF No. 49), the last of which. was confirmed on January 24, 2013 (ECF No. 52). Debtor’s plan is consistent with the chapter 13 model plan, use of which became mandatory in the Northern District of New York as of January 1, 2012.2

On May 16, 2014, during the second year of Debtor’s plan, Debtor and Clarkson executed a post-petition asset purchase agreement, wherein Debtor agreed to sell the Property to Clarkson subject to Debtor obtaining bankruptcy court approval of the same (the “APA”). When Debtor failed to obtain this Court’s approval of the APA within the time specified by its terms, Clarkson sought and obtained a judgment [531]*531in St. Lawrence County dated July 28, 2014, therein “directing [Debtor’s] specific performance of the [APA]” (the “Judgment,” ECF No. 61, Ex. E). The Judgment, incorporating the terms of the APA, ordered Debtor to “specifically perform pursuant to Paragraph 10 of the [APA] by filing a motion within fourteen (14) days of the entry of this Judgment with the Bankruptcy Court seeking an order approving the terms and conditions of the APA.” Debtor was further “specifically ordered to close such purchase at the offices of Bond, Schoeneck & King, PLLC pursuant to Paragraph 3 of the [APA] within seven (7) days of entry of an order from the Bankruptcy Court approving the terms and conditions of the [APA]” and to “sign and deliver a deed and any other documents necessary to complete the sale of [the Property] to Plaintiff Clarkson [] under the terms of the [APA] at such closing.”

Debtor thereafter failed to specifically perform pursuant to the Judgment within the mandated fourteen day period and Clarkson filed the Amended Motion with this Court on .October 30, 2014, seeking relief from the automatic stay and an order compelling Debtor to comply with the terms of the APA. The Amended Motion was returnable on the Court’s regular motion calendar in Utica, New York on December 9, 2014, and continued on February 10, 2015.3 Debtor filed a response to the Amended Motion, pro se, on November 26, 2014 (the “Pro Se Response,” ECF No. 67), and again, through counsel, on December 1, 2014 (“Counsel’s Response,” ECF No. 68). Clarkson filed a Reply Memorandum of Law on December 4, 2014 (the “Reply Memorandum,” ECF No. 75). Hearing was held on December 9, 2014. Debtor thereafter filed a Reply, again pro se, on January 12, 2015 (the “Reply” ECF No. 81). Clarkson filed a Supplemental Memorandum of Law on January 30, 2015 (the “Supplemental Memorandum,” ECF No. 83), which was argued on the February 10, 2015 hearing date. Having now considered the Amended Motion, the Pro Se Response, Counsel’s Response, the Reply Memorandum, the Reply, the Supplemental Memorandum, and the parties’ oral arguments, the Court now makes the following findings of fact and conclusions of law to the extent required by Federal Rule of Bankruptcy Procedure 7052 and denies the Amended Motion for the reasons set forth below.

JURISDICTION

The Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334, 157(a), and 157(b)(1). This matter constitutes a core proceeding under 28 U.S.C. §§ 157(b)(2)(A), (G), and (N).

BACKGROUND

Between August 2, 1988 and December 20, 2010, Debtor filed eleven Voluntary Petitions for chapter 13 relief and one Voluntary Petition for chapter 7 relief in the United States Bankruptcy Court for the Northern District of New York, all of which were dismissed. Debtor filed the instant Voluntary Petition for chapter 13 relief on March 23, 2012.

On Schedule A of the March 23, 2012 Voluntary Petition, titled “Real Property,” Debtor identified an ownership interest in the subject Property, which he valued at $90,000.00 “because Clarkson College [sic] [was] interested in buying the property,” [532]*532notwithstanding an assessed value of $52,000.00. (ECF No. 1.) Debtor’s chapter 13 plan (the “Plan,” ECF No. 49), which provides a 100% dividend to unsecured creditors, was filed on December 14, 2012, and confirmed by the Court on January 24, 2013 (the “Confirmation Order,” ECF No. 52). Although amended three times prior to confirmation, the Plan neither identifies the Property nor notices Debtor’s intent to sell the same, despite Debtor’s valuation of the Property in Schedule A. The Confirmation Order, however, provides that “no article of property, real or personal, with any value of more than $2,500.00 may be sold, transferred or otherwise disposed of, without prior order of this court.”

The Confirmation Order further requires Debtor to pay all allowed claims in full over the sixty month term and identifies taxes owed to St. Lawrence County, the New York State Department of Tax and Finance, and the Internal Revenue Service, totaling $126,149.80 together with statutory interest. The Plan and Confirmation Order do not, however, identify the judgment lien held by the Albert Jakobson Trust against Debtor in the amount of $38,492.83, plus statutory interest. Furthermore, the chapter 13 trustee indicates that there are additional creditors who have not been listed in Debtor’s schedules and accordingly, the trustee has a filed a second motion to dismiss or convert for unfeasibility (the “Motion to Dismiss,” ECF No. 105), which is being carried pending the Court’s issuance of this Memorandum-Decision and Order.

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Bluebook (online)
536 B.R. 529, 74 Collier Bankr. Cas. 2d 347, 2015 Bankr. LEXIS 2963, 2015 WL 5178194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-engels-nynb-2015.