In re Short

Northern Mariana Islands

In re Short

2 N. Mar. I. Commw. 478

CourtDistrict Court, Northern Mariana Islands

DecidedFebruary 19, 1986

DocketBK No. 84-00002S

StatusPublished

This text of 2 N. Mar. I. Commw. 478 (In re Short) is published on Counsel Stack Legal Research, covering District Court, Northern Mariana Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Short, 2 N. Mar. I. Commw. 478 (nmid 1986).

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Opinion

DECISION AND ORDER

Home Federal Savings and Loan Association (Home Federal), a creditor of debtor Joyce D. Short (Short), moves this Court, to dismiss' Short's bankruptcy petition or in the alternative to vacate the automatic stay with regards to certain real property located in .Eureka, California (hereinafter mortgaged property). For the following reasons Home Federal1s motion will be sustained and this petition will be dismissed.

Pursuant to a loan agreement between Home Federal and •co-owners Joyce D. Short and Melvin K. Tibbet, Home Federal received a first mortgage on the subject mortgaged property on January 21, 1975. On April 4, 1984, Home Federal recorded a Notice of Default and Election to Sell under Deed of Trust. On April 11, 1984, Short filed her petition.for relief under Chapter 11 of. the Bankruptcy Code (Code).

Home Federal purchased the' mortgaged property at a sale on December 12, 1984, and recorded a Trustee’s Deed on December 28, 1984. Subsequently, on December 16, 1985, they filed this motion to dismiss or in the alternative to vacate the stay.

[480]*480Upon commencement of a bankruptcy proceeding an estate is created which is comprised of all legal and equitable interests of the debtor. 11 U.S.C. § 541. Section 362, the automatic stay provision, precludes parties from initiating or continuing legal action against a debtor or its estate following the filing of a petition for relief. Specifically, § 362(a) prohibits "any act to create, perfect, or enforce any lien against part of the estate." When Short filed for bankruptcy on April 11, 1984, the mortgaged property became property of the estate. The subsequent sale of the mortgaged property on December 12, 1984, was in direct violation of § 362.

Since filing this petition on April 11,' 1984, Short has never filed a list of creditors or a schedule of assets and liabilities, and to date she has failed to even propose a plan for reorganization. Section 1112 of the code authorizes the court to dismiss a petition for several reasons, two of which are inability to effectuate a plan and unreasonable delay by the debtor that is prejudicial to creditors. Both exist here.

The bankruptcy court is a court of equity. In re Professional Sales, 48 B.R. 651 (N.D.Ill. 1985). Pursuant to this, the court has the authority to shape relief appropriate to the case at hand. IcC Though Home Federal violated the stay, Short's inaction in this proceeding has resulted in prejudice to the creditors and it is in their best interests that this petition shall be dismissed.

IT IS SO ORTERED.

[481]*481DATED this 19th day of February, 1986.

.n)pGE ALFRED LAURETA.

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DECISION AND ORDER

Home Federal Savings and Loan Association (Home Federal), a creditor of debtor Joyce D. Short (Short), moves this Court, to dismiss' Short's bankruptcy petition or in the alternative to vacate the automatic stay with regards to certain real property located in .Eureka, California (hereinafter mortgaged property). For the following reasons Home Federal1s motion will be sustained and this petition will be dismissed.

Pursuant to a loan agreement between Home Federal and •co-owners Joyce D. Short and Melvin K. Tibbet, Home Federal received a first mortgage on the subject mortgaged property on January 21, 1975. On April 4, 1984, Home Federal recorded a Notice of Default and Election to Sell under Deed of Trust. On April 11, 1984, Short filed her petition.for relief under Chapter 11 of. the Bankruptcy Code (Code).

Home Federal purchased the' mortgaged property at a sale on December 12, 1984, and recorded a Trustee’s Deed on December 28, 1984. Subsequently, on December 16, 1985, they filed this motion to dismiss or in the alternative to vacate the stay.

[480]*480Upon commencement of a bankruptcy proceeding an estate is created which is comprised of all legal and equitable interests of the debtor. 11 U.S.C. § 541. Section 362, the automatic stay provision, precludes parties from initiating or continuing legal action against a debtor or its estate following the filing of a petition for relief. Specifically, § 362(a) prohibits "any act to create, perfect, or enforce any lien against part of the estate." When Short filed for bankruptcy on April 11, 1984, the mortgaged property became property of the estate. The subsequent sale of the mortgaged property on December 12, 1984, was in direct violation of § 362.

Since filing this petition on April 11,' 1984, Short has never filed a list of creditors or a schedule of assets and liabilities, and to date she has failed to even propose a plan for reorganization. Section 1112 of the code authorizes the court to dismiss a petition for several reasons, two of which are inability to effectuate a plan and unreasonable delay by the debtor that is prejudicial to creditors. Both exist here.

The bankruptcy court is a court of equity. In re Professional Sales, 48 B.R. 651 (N.D.Ill. 1985). Pursuant to this, the court has the authority to shape relief appropriate to the case at hand. IcC Though Home Federal violated the stay, Short's inaction in this proceeding has resulted in prejudice to the creditors and it is in their best interests that this petition shall be dismissed.

IT IS SO ORTERED.

[481]*481DATED this 19th day of February, 1986.

.n)pGE ALFRED LAURETA.

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