Mullis v. USA Restaurant Equipment Co. (In re Harsh)

277 B.R. 833, 2001 Bankr. LEXIS 1926
CourtUnited States Bankruptcy Court, M.D. Georgia
DecidedAugust 27, 2001
DocketBankruptcy No. 00-10755-JDW; Adversary No. 01-1002-JDW
StatusPublished
Cited by2 cases

This text of 277 B.R. 833 (Mullis v. USA Restaurant Equipment Co. (In re Harsh)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mullis v. USA Restaurant Equipment Co. (In re Harsh), 277 B.R. 833, 2001 Bankr. LEXIS 1926 (Ga. 2001).

Opinion

MEMORANDUM OPINION

JAMES D. WALKER, Jr., Bankruptcy Judge.

This matter comes before the Court on Complaint to Avoid Preferential Transfer of a Security Interest, Complaint for Turnover, and Complaint for Damages filed by the Chapter 7 Trustee, David E. Mullís (“Trustee”) against USA Restaurant Equipment Company, Steve Kalkavouras, and Patricia Kalkavouras (“Defendants”). This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(F). The Court held a trial on Trustee’s Complaint on June 19, 2001. After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in compliance with Federal Rule of Bankruptcy Procedure 7052.

Findings of Fact

On March 7, 1997, Brian Harsh (“Debt- or”) entered into an agreement with Defendants under which he purchased restaurant equipment for $32,188.10 in ‘'which Defendants retained a security interest. Debtor began making monthly payments for the equipment but later experienced financial difficulty and filed for bankruptcy on June 12, 2000.

[835]*835Pursuant to Federal Rule of Bankruptcy Procedure 2002, notice of the bankruptcy was sent to Debtor’s creditors, including Defendants, informing them of the meeting of creditors on July 12, 2000. On June 23, 2000, Trustee sent a letter to Defendants requesting documents relating to the purchase, loan, security interest, corresponding collateral, and evidence of perfection of the security interest for the purpose of determining whether the bankruptcy estate would claim an interest in the equipment. Defendants failed to respond to Trustee’s request and did not appear at the meeting of creditors. Instead, on July 12, 2000-the date of the creditors’ meeting-Defendants repossessed the equipment. Defendants insist they received neither notice of the bankruptcy nor Trustee’s June 23 letter prior to the repossession.

On July 17, 2000, Trustee sent another letter to Defendants, which Defendants admit having received, informing Defendants that the repossession violated the automatic stay. Trustee explained that removal of the equipment was unlawful and improper because Defendants had failed to provide proof that their security interest was perfected and because Trustee had not abandoned the equipment, thereby making it property of the estate. In the letter, Trustee demanded that Defendants turn over the equipment and informed them that the equipment must be maintained in compliance with local and state regulations. In addition, Trustee requested that Defendants contact him immediately with any documents that establish a perfected security interest.

Defendant Steve Kalkavouras responded to Trustee’s letter by informing a member of Trustee’s staff that he would throw the equipment away before he would turn it over. Defendants did not seek legal counsel.

Trustee filed a complaint on January 18, 2001, which Defendants did not answer. Trustee filed a Request to Enter Default on April 11, 2001. Pursuant to Federal Rule of Bankruptcy Procedure 7055, the Clerk of Court entered default on April 12, 2001. The only issue remaining for trial was what relief the Court should award Trustee as a result of Defendants’ actions. Out of an abundance of caution and in the interest of fairness, the Court permitted Defendants to fully participate in the pretrial conferences and the trial.

A pretrial conference was held on March 19, 2001, at which Defendants appeared pro se and requested that the default be opened. At that conference, the Court ordered Defendants to disclose the location of the equipment so that Trustee could inspect it. When Defendants refused, the Court explained that they were contravening a direct order of the Court. Defendants claimed they understood; however, they still refused to disclose the location of the equipment to the Court. Defendants’ disrespect for the Court’s order negated the good cause required for opening the default. Furthermore, Defendants presented no defense on the merits. Accordingly, the Court denied the request to open the default and advised Defendants to obtain legal counsel.

The case was first set for trial on May 22, 2001. The Court allowed Defendants to participate in the trial, and they again appeared pro se. At that time, Defendants informed the Court that they were unable to obtain legal counsel but that they would make the equipment available for inspection. The Court continued the trial until June 19, 2001, so Trustee could inspect the equipment. The Court expected Defendants to cooperate with Trustee and help to mitigate the harm caused by their misconduct.

[836]*836All the equipment except a bread mixer was in operating condition on the date Defendants repossessed it. However, upon inspection, Trustee found that the equipment had so deteriorated since the repossession, that it no longer complied with local and state health regulations and, therefore, had no fair market value. As to the bread mixer, Defendants testified that they discarded it because its motor was burned out when they repossessed the mixer.

At the time the equipment was purchased in March 1997, it had a fair market value of $27,210.00. Trustee relied on IRS rules to determine the value of the depreciated equipment. Pursuant to Revenue Procedure 87-56, 1987-2 C.B. 674, 1987 WL 350424, the equipment has a class life of 18 years and a general depreciation life of 10 years. Having been in use for 3 years and 3 months and having been repossessed 2 months thereafter, the equipment had a depreciation life of approximately 6 years and 6 months remaining at the time of repossession. Based on these figures, Trustee argued that the bread mixer had a fair market value of $6,175.00 on the date of repossession and that the remaining equipment had a fair market value of $11,511.50 on the date of repossession. At the time of trial, the equipment was worthless.

Trustee has expended 24.30 hours in pursuing this case. Calculated at an hourly rate of $125.00, Trustee stated that the total cost of attorney fees was $3,037.50. Trustee further showed that the total amount of expenses incurred by him as attorney was $250.16.

Conclusions of Law

Once a court has entered default and denied a request to open the default, the only remaining issue for the court to decide is the remedy to award the prevailing party. However, in this case, because Defendants appeared pro se and did not have a full appreciation for the legal process or the consequences of not complying with that process, the Court permitted Defendants to present their defenses to Trustee’s complaint at trial. Therefore, the Court will briefly address the potential merit of those defenses before turning to the issue of remedies.

Defendants claim that they owned the equipment and had a right to repossess it under a writ of possession obtained in state court. However, this defense does not take into account the automatic stay.

A bankruptcy filing creates an estate comprised of certain types of property interests, including all the debtor’s legal and equitable interests in property as of the commencement of the case. 11 U.S.C.

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295 B.R. 803 (D. South Carolina, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
277 B.R. 833, 2001 Bankr. LEXIS 1926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullis-v-usa-restaurant-equipment-co-in-re-harsh-gamb-2001.