Southern Motors of Savannah, Inc. v. Crosby (In re Crosby)

535 B.R. 908
CourtUnited States Bankruptcy Court, S.D. Georgia
DecidedAugust 14, 2015
DocketNUMBER 15-20653; ADVERSARY PROCEEDING NUMBER 15-02013
StatusPublished

This text of 535 B.R. 908 (Southern Motors of Savannah, Inc. v. Crosby (In re Crosby)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southern Motors of Savannah, Inc. v. Crosby (In re Crosby), 535 B.R. 908 (Ga. 2015).

Opinion

OPINION AND ORDER DETERMINING CERTAIN PROPERTY IS PROPERTY OF THE BANKRUPTCY ESTATE, DENYING REQUEST FOR RELIEF FROM STAY, AND REQUIRING IMMEDIATE TURNOVER

JOHN S. DALIS, United States Bankruptcy Judge

This matter came on for expedited hearing on the Motion for Relief from Automatic Stay (‘Motion') filed by Southern Motors of Savannah, Inc. (“Southern Motors”) with regard to a 2013 Honda Fit (“Vehicle”) and the adversary complaint for turnover of the Vehicle filed by Debtors George Walter Crosby, Jr. and Nancy Judd Crosby. In essence, the Motion is a request for a declaratory judgment that the Vehicle is not property of the bankruptcy estate and that the stay does not apply. Accordingly, I initially consider the Motion as a counterclaim in the adversary proceeding. Only if I find that the Vehicle is property of the bankruptcy estate do I consider whether Southern Motors is entitled to stay relief.

After considering the parties’ briefs and the evidence and legal arguments presented at hearing, I find that the Vehicle is property of the bankruptcy estate. Thus, Southern Motors violated the stay when it repossessed the vehicle post-petition.

Additionally, I find that there is no basis to grant relief from the stay at this time. Specifically, I find that, as to Southern Motors, the Crosbys successfully rebutted any presumption that their petition was filed not in good faith. The Motion is therefore denied and Southern.Motors is [910]*910ordered to turn over the vehicle to the Crosbys immediately.

FINDINGS OF FACT

On August 3, 2015, the Crosbys filed a petition for chapter 13 bankruptcy relief (“Current Case”). (ECF No. 1.) 1Prior to the fifing of the Current Case, the Crosbys had been dismissed from a previous chapter 13 case and shortly thereafter had purchased the Vehicle from Southern Motors. The details of those two events are as follows.

On July 20, ,2015, approximately two weeks before fifing the Current Case, the Crosbys’ previous chapter 13 bankruptcy case, No. 13-20635 (“Previous Case”), was dismissed. (Mot. for Relief, ECF No. 13 ¶ 2-3.) The Previous Case had been ongoing for a little over two years. (Id. at ¶ 2.)

The Previous Case primarily sought to save the Crosbys’ home, but the Crosbys fell significantly behind on both their mortgage and the chapter 13 plan payments during the case. Mr. Crosby testified that they did not make any payments on their mortgage during the Previous Case.

The Crosbys’ defaults on their mortgage and chapter 13 plan were a result of health and employment issues. Mrs. Crosby’s employment was the couple’s only source of income during the Previous Case. According to Mr. Crosby’s testimony, Mrs. Crosby became sick during the Previous Case and was unable to work for at least a month. She was let go by her employer during that time and was unable to obtain new employment once she was able to work again. Mrs. Crosby finally got a new job approximately four months before the Current Case.

The day after the Previous Case was dismissed, the Crosbys bought the Vehicle from Southern Motors. Before purchasing the Vehicle, the Crosbys only had one vehicle with in excess of 300,000 miles. The Crosbys established that they needed a second vehicle so that Mr. Crosby could go to his frequent medical appointments while Mrs. Crosby traveled to and from work. Mr. Crosby testified that he must see his heart doctor on a weekly basis as a result of quadruple bypass heart surgery. He also testified that he has regular appointments with other doctors for numerous other health issues. Finally, Mr. Crosby established that a second vehicle was especially necessary in fight of the likelihood that Mrs. Crosby’s work schedule would be expanded to five days per week in the near future and require regular travel out of town to Waycross, Georgia.

To purchase the Vehicle, the Crosbys made a down payment of $3,100.00 and agreed to seventy-two monthly payments of $459.88 beginning September 4, 2014, at an agreed interest rate of 24.35%. Mr. Crosby testified that they acquired the cash for the down payment as an advance on a distribution from the probate estate of Mrs. Crosby’s recently deceased mother.

The Crosbys and a Southern Motors representative (hereinafter “Southern Motors”) executed two documents related to the purchase of the Vehicle: a retail installment contract titled “Simple Finance Charge” (“Retail Installment Contract”) and a form called the “Delivery Receipt.”

Mr. and Mrs. Crosby and Southern Motors each signed the Retail Installment Contract. Below the parties’ signatures, the Rétail Installment Contract states, “Seller assigns its interest in this contract to Santander Consumer USA Inc. (Assign-[911]*911ee) under the terms of Seller’s agreements) with Assignee.” Southern Motors signed the Retail Installment Contract a second time below that statement and marked a box labeled “Assigned without recourse.”

The parties also each signed the Delivery Receipt. The Delivery Receipt by its terms is made a part of the Retail Installment Contract. In pertinent part, the Delivery Receipt provides that:

IF A RETAIL INSTALLMENT CONTRACT IS EXECUTED AS A PART OF THIS SALES TRANSACTION, THEN BUYER AND SELLER INTEND THAT THIS CONTRACT WILL BE ASSIGNED BY SELLER, IN THE EVENT SELLER IS UNABLE TO ASSIGN THIS CONTRACT WITHIN_• DAYS OF THE DATE HEREOF, THIS CONTRACT SHALL BE NULL AND VOID AND BUYER, IMMEDIATELY UPON NOTICE BY SELLER, SHALL DO ONE OF THE FOLLOWING: 1. PURCHASE THE VEHICLE FROM SELLER FOR THE CASH PRICE THEREOF SET FORTH HEREIN; OR 2. RETURN THE VEHICLE DESCRIBED HEREIN TO SELLER AND PAY TO SELLER THE COST OF REPAIR OR ANY DAMAGE OCCURRING TO THE VEHICLE WHILE IN BUYERS POSSESSION.

The Delivery Receipt does not specify the number of days Southern Motors has to assign the Retail Installment Contract, that space on the form remaining blank, as shown above.

The Crosbys took possession of the Vehicle on July 21, 2015. On August 4, 2015, the day after the Crosbys filed the Current Case, Southern Motors was notified by Santander Auto Finance (“Santander”) that they would not purchase the loan as a result of the Crosbys’ bankruptcy filing. (Ex. B of ECF No. 13.)

Shortly thereafter, Mrs. Crosby was contacted on two occasions by someone named “Kip” informing her that financing for the vehicle had been denied and the vehicle must be returned to Southern Motors. Both times, Mrs. Crosby informed the caller that they had just filed for bankruptcy relief and would not return the vehicle. Additionally, Mr. Crosby called Kip on August 6, 2015, and provided him with the bankruptcy case number.

Sometime between the evening of August 6, 2015, and the morning of August 7, 2015, the vehicle was repossessed. Thereafter, on August 7, 2015, the Crosbys’ bankruptcy attorney contacted Southern Motors, stating that the Crosbys had recently filed for bankruptcy protection.

Presumably as a result of the call from the Crosbys’ bankruptcy attorney, Southern Motors filed the Motion on August 7, 2015.. (ECF No. 13.) Three days later, on August 10, 2015, the Crosbys’ filed the adversary complaint for turnover of the Vehicle and damages pursuant to ' 11 U.S.C. § 362(k). (A.P. No. 15-02013, ECF ■ No. 1.) Both Southern Motors and the Crosbys subsequently filed motions to expedite hearings on these matters. (ECF No. 21; A.P. No.

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Cite This Page — Counsel Stack

Bluebook (online)
535 B.R. 908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-motors-of-savannah-inc-v-crosby-in-re-crosby-gasb-2015.