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https://www.courtlistener.com/api/rest/v3/opinions/8487438/ | Per Curiam. Booth, C. J.
I have great doubts upon my mind, but I am rather inclined to consider the Servitude Act as cumu*40lative. The latter part of the fifth section creates doubt. But seeing that this Court have never directed the additional punishment, and from the doubts I entertain upon the subject, I cheerfully acquiesce with by brethren in considering the latter Act as repealing the former. As, however, we are of opinion that there was probable ground or cause of prosecution, the costs must be paid.
The Court awarded that the judgment be arrested, and that the prisoner be discharged from confinement on payment of costs. They afterwards, upon the application of the defendant’s counsel, ordered him to be sold to pay the costs. See State v. Negro Absolom, antea. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487439/ | [Per Curiam.]
First, it is considered by the Court that a judgment confessed or obtained against administrators is not a lien on the lands of the intestate. Secondly, that the sale of the lands under an order of the Orphans’ Court was prior to the execution to take the lands. And thirdly, by our Act of Assembly, administrators are enjoined to pay debts according to their priority as state debts, bonds, notes, etc. Therefore what the plaintiffs contend for should be inconsistent with said Act, if an account creditor could obtain judgment and have the preference of bond and other creditors. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494104/ | PER CURIAM.
Veronica T. Jumpp (the “Debtor”) appeals from the bankruptcy court’s June 23, 2006, order denying the Debtor’s Motion for Determination and Declaratory Judgment as to Continuation and Existence of the Automatic Stay (“Motion for Determination”) and Motion to Reimpose the Automatic Stay, which had the effect of lifting the automatic stay in favor of Chase Home Finance, LLC (“Chase”). The bankruptcy court held that section 362(c)(3)(A)1 terminates the automatic stay in its entirety, i.e., with regard to the debtor, property of the debtor, and property of the estate. The Debtor argues that section 362(c)(3)(A) does not terminate the stay with regard to property of the estate. For the reasons set forth below, the bankruptcy court’s order is vacated.
BACKGROUND
The Debtor filed a Chapter 13 petition on May 1, 2006. She had previously been a debtor in a Chapter 13 case that was dismissed upon the Chapter 13 trustee’s motion on February 6, 2006. Chase holds a mortgage on the Debtor’s residence in which the Debtor claims approximately $86,000 in equity exempt under Mass. Gen. Laws, Ch. 188, § 1.
In her current bankruptcy case, the Debtor filed a Motion to Extend the Automatic Stay on May 30, 2006, twenty-nine days post-petition. See 11 U.S.C. § 362(c)(3)(B) (requiring, before the court may grant a motion to extend the automatic stay, that both the motion be filed and the hearing be held “before the expiration of the 30-day period”). The Debtor did not seek an expedited hearing on her motion, and a hearing was held on June 6, 2006. Chase objected to the motion to extend the stay on the ground that the stay could not be extended because the hearing was not held within thirty days. The bankruptcy court denied the Debtor’s Motion to Extend the Automatic Stay. The Debtor then filed a Motion to Reconsider in light of In re Johnson, which had been recently decided. See In re Johnson, 335 B.R. 805 (Bankr.W.D.Tenn.2006) (holding *791that under section 362(c)(3)(A) the automatic stay terminates with respect to the debtor and property of the debtor, but not with respect to property of the estate). The Debtor’s Motion to Reconsider was denied “because it failed to allege any newly discovered evidence, any manifest error of law, or any significant change in the law that would affect the prior outcome.” In re Jumpp, 344 B.R. 21, 23 (Bankr.D.Mass.2006). The Debtor did not appeal the denial of her Motion to Reconsider.
The Debtor next filed the Motion for Determination wherein she argued the position she currently argues on appeal, that section 362(c)(3)(A) does not terminate the stay with regard to property of the estate. The Debtor also filed a Motion to Reimpose the Automatic Stay, arguing that the court could use section 105(a) to reimpose the stay.
The bankruptcy court denied both the Motion for Determination and the Motion to Reimpose the Automatic Stay, holding that section 362(c)(3)(A) terminates the automatic stay in its entirety, i.e., with regard to the debtor, the debtor’s property, and property of the estate. The court also concluded that it could not reimpose the automatic stay under section 105(a).2
JURISDICTION
The bankruptcy appellate panel’s jurisdiction includes appeals “from final judgments, orders, and decrees.” 28 U.S.C. § 158(a)(1) and (b). Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). The bankruptcy court’s order denying the Debtor’s motions is final because it had the effect of lifting the automatic stay with respect to the Debtor’s residence, permitting Chase to proceed against the Debtor’s residence outside of bankruptcy. See Tringali v. Hathaway Machinery Co., Inc., 796 F.2d 553, 558 (1st Cir.1986) (an order denying relief from the automatic stay is a final order).
STANDARD OF REVIEW
Generally, a bankruptcy court’s factual findings are reviewed under the clearly erroneous standard and conclusions of law are reviewed de novo. See TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995); Western Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20 n. 8 (1st Cir.1994). The extent to which the automatic stay terminates pursuant to section 362(c)(3)(A) is a question of law that the Panel herein reviews de novo.
DISCUSSION
The question presented on appeal is whether section 362(c)(3)(A) terminates the automatic stay with regard to the debt- or, property of the debtor, and property of the estate, or only with regard to the debtor and property of the debtor. The majority of courts that have considered the issue have concluded that the automatic stay does not terminate with respect to property of the estate.3 The court below *792and In re Jupiter, 344 B.R. 754 (Bankr.D.S.C.2006), have held otherwise, concluding that the automatic stay terminates in its entirety.
Section 362(c)(3) terminates the automatic stay after thirty days for individual debtors who have had a previous bankruptcy case pending within the preceding year:
(3) if a single or joint case is filed by or against debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b)—
(A) the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
(B) on the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed; and
(C) for purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)—
(i) as to all creditors, if—
(I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period;
(II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to—
(aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; or
(III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded—
(aa) if a case under chapter 7, with a discharge; or
(bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; and
(ii) as to any creditor that commenced an action under subsection (d) in a *793previous case in which the individual was a debtor if, as of the date of dismissal of such case, that action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to actions of such creditor[.]
11 U.S.C. § 362(c)(3) (emphasis added). Whereas section 362(c)(3) applies to individual debtors who had one prior case pending in the previous year, section 362(e)(4)(A)(i) applies to individual debtors who had two or more cases pending within the previous year:
(4)(a)(i) if a single or joint case is filed by or against a debtor who is an individual under this title, and if 2 or more single or joint cases of the debtor were pending within the previous year but were dismissed, other than a case refiled under section 707(b), the stay under subsection (a) shall not go into effect upon the filing of the later case[.j
11 U.S.C. § 362(c)(4)(A)® (emphasis added).
I.
We begin by considering whether section 362(c)(3)(A) is ambiguous. If a Bankruptcy Code provision is unambiguous, the plain language controls, so long as a literal application of the provision does not produce an absurd result or one that is “demonstrably at odds with the intentions of its drafters.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)); Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). In our search for ambiguity, we consider “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997).
The Jupiter court found the language of section 362(c)(3)(A) ambiguous, reasoning
that the operative and controlling wording in § 362(c)(3)(A) is that the stay under subsection (a) “terminates.” The Court construes the remaining language of “with respect to the debtor” to define which debtor is effected by the provision, with reference to § 362(c)(3). Thus, in a joint case, a “debtor” may not necessarily mean both debtors if one debtor did not have a case dismissed within the year prior to the current petition date. See, e.g., In re Parker, 336 B.R. 678, 680-81 (Bankr.S.D.N.Y.2006) (holding that the new provisions of § 362(c)(4) does [sic] not affect a co-filing spouse with no prior filings). The Court finds § 362(c)(3)(A) lifts the automatic stay with respect to the category of debtor, defined by § 362(c)(3), including property of the debtor’s estate.
In re Jupiter, 344 B.R. at 759-60. Other courts have found section 362(c)(3)(A)’s phrase “terminates with respect to the debtor” to be unambiguous:
Section 362(c)(3)(A) as a whole is not free from ambiguity, but the words, “with respect to the debtor” in that section are entirely plain; a plain reading of those words make sense and is entirely consistent with other provisions of § 362 and other sections of the Bankruptcy Code. Section 362(c)(3)(A) provides that the stay terminates “with respect to the debtor.” How could that be any clearer?
In re Jones, 339 B.R. at 363. We disagree with Jupiter that the phrase “with respect to the debtor” is any less operative or controlling than the word “terminates.” Viewed in isolation, the language itself is unambiguous.
*794Turning to context, “with respect to the debtor” comports with other provisions of section 362. Section 362(a) enumerates which acts and actions are stayed, differentiating between the debtor, property of the debtor, and property of the estate, providing:
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(2) the enforcement, against the debt- or or against property of the estate, of a judgment obtained before the commencement of the case under this title;
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the estate;
(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;
(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;
(7) the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor; and
(8) the commencement or continuation of a proceeding before the United States Tax Court concerning a corporate debtor’s tax liability for a taxable period the bankruptcy court may determine or concerning the tax liability of a debtor who is an individual for a taxable period ending before the date of the order for relief under this title.
11 U.S.C. § 362(a) (emphasis added). Section 362(c)(3)(A)’s phrase “with respect to the debtor” also speaks the same language as other subsections that differentiate between the debtor, property of the debtor, and property of the estate, including section 362(b)(2)(B) (providing that the automatic stay does not prevent “the collection of a domestic support obligation from property that is not property of the estate”), section 362(c)(1) (providing that “the stay of an act against property of the estate under subsection (a) of this section continues until such property is no longer property of the estate”), and section 362(c)(2) (providing for the termination of the stay of “any other act” prohibited by § 362(a)). In re Jones, 339 B.R. at 364.
Section 521(a)(6), like section 362(c)(3)(A), was added by the Bankruptcy Abuse and Consumer Protection Act of 2005 (“BAPCPA”) and also distinguishes between types of the stay. Judge Votolato:
I feel that in this instance Congress has demonstrated an awareness of the difference between a stay against property of the estate, and a stay against the debtor under § 521(a)(6), which deals with the consequences of a debtor’s fail*795bre to reaffirm or redeem certain personal property subject to a purchase money security interest. In that instance Congress stated: “If the debtor fails to so act within the 45-day period referred to in paragraph (6), the stay under section 362(a) is terminated with ■respect to the personal property of the estate or of the debtor which is affected 11 U.S.C. § 521(a)(6). In § 362(c)(3)(A), Congress makes no such distinction and only states: the stay is lifted “with respect to the debtor.”
In re Pope, 351 B.R. at 16; see also In re Jones, 339 B.R. at 364 (“If Congress had intended that the automatic stay would terminate under § 362(c)(3)(A) as to property of the estate, it would have specifically said so, as it did in § 521(a)(6).”).
Not every court that has considered the matter has found section 362(c)(3)(A) to be consistent with its sister subsections. Jupiter concluded that a partial termination of the stay would be inconsistent with section 362(c)(3)(B) and (C), which allows a “party in interest” to file a motion to extend the stay beyond the thirtieth day in the case of a debtor who has had one previous bankruptcy case pending in the previous year. In re Jupiter, 344 B.R. at 760-61. The motion must be filed and the hearing held within thirty days of the petition date, and the moving party must demonstrate that the later case was filed in good faith, and, in many cases, the burden of proof required of the moving party is clear and convincing. 11 U.S.C. § 362(c)(3)(B) and (C). In rejecting the majority position that section 362(a)(3)(A) does not terminate the stay with regard to property of the estate, Jupiter questioned why Congress would place a high burden on the debtor and require courts to hold expedited hearings when, in reality, the debtor would probably be the only “interested party” moving for an extension because most property involved in a bankruptcy case is property of the estate, especially in Chapter 13 where section 1306 incorporates pre- and post-petition property into the bankruptcy estate, and that property would continue to be protected by the automatic stay. In re Jupiter, 344 B.R. at 760-61. Jupiter is not alone in making this observation. “It is true that if § 362(c)(3)(A) only applies with respect to the debtor, it is unlikely that anyone other than the debtor would seek an extension, but the fact that it is unlikely does not make § 362(c)(3)(A) inconsistent with § 362(c)(3)(B).” In re Jones, 339 B.R. at 364. We agree with Jones.
Section 362(c)(4)(A)® is a new Code section that is similar in nature to section 362(c)(3)(A) but contains distinctly different language. Whereas section 362(c)(3)(A) limits the automatic stay for debtors who have had one previous bankruptcy ease pending in the preceding year, section 362(c)(4)(A)® applies to debtors who have had two or more prior cases pending in the previous year. With respect to debtors with two or more prior cases, section 362(c)(4)(A)® clearly provides that “the stay under subsection (a) shall not go into effect upon the filing of the later case.” 11 U.S.C. § 362(c)(4)(A)®. “Where Congress includes particular language in one section of a statute but omits it in another, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Keene Corp. v. United States, 508 U.S. 200, 208, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (citation, quotations, alteration, and omission omitted). “Congress could have removed the Stay in its entirety, as it did under § 362(c)(4), by simply deleting the phrase ‘with respect to the debtor.’ ” In re Brandon, 349 B.R. at 132; accord In re Harris, 342 B.R. at 279-80; In re Jones, 339 B.R. at 364; In re *796Paschal, 337 B.R. at 279; In re Williams, 346 B.R. at 368. Sections 362(c)(4)(A)® and 362(c)(3)(A) were both added by BAPCPA, and we are unconvinced that the significant difference in language between the two sections reveals a Congressional intent to say the very same thing. Rather, the language indicates an intent to differentially penalize previous filers based on the number of previous cases. In re Harris, 342 B.R. at 279.
Upon consideration of the language — “with respect to the debtor” — and the context in which that language is found, the Panel disagrees with the court below and concludes that this portion of section 362(c)(3)(A) is unambiguous. See In re Jumpp, 344 B.R. at 26 (finding the language of section 362(c)(3)(A) to be “less than clear” and proceeding to consider legislative history). In the face of an unambiguous statute, the Panel need not consider the statute’s legislative history.4
II.
Having found the plain language to be unambiguous, we turn to whether a literal application of section 362(c)(3)(A) would produce an absurd result or one that is “demonstrably at odds with the intentions of its drafters.” United States v. Ron Pair Enters., Inc., 489 U.S. at 242, 109 S.Ct. 1026 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)); Lamie v. United States Trustee, 540 U.S. at 534, 124 S.Ct. 1023. The Jupiter court concluded that a partial termination of the stay would frustrate Congress’s intention “to close ‘loopholes and incentives that allow and— sometimes- — even encourage opportunistic personal filings and abuse.’ ” In re Jupiter, 344 B.R. at 761 (quoting H.R.Rep. No. 109-31(1), at 5 (2005), as reprinted in 2005 U.S.C.C.A.N. 88-92). Jupiter continued by stating that “[a partial termination] is demonstrably at odds with Congress’s intent to deter bad faith [and] successive filings.” Id. at 762; see also In re Jumpp, 344 B.R. at 26-27 (“The thrust of amended section 362 is to burden the so-called ‘repeat filer’ with demonstrating why the automatic stay should be extended.”).
The Panel disagrees with Jupiter that a partial termination of the stay would fail to discourage abusive filings. Lifting the stay with respect to the debtor and property of the debtor does penalize the debtor and does provide potential options to creditors.
Given the wording and categorization found in section 362(a), termination of the stay with respect to the debtor means that: suits against the debtor can commence or continue postpetition because section 362(a)(1) is no longer applicable; judgments may be enforced against the debtor, in spite of section 362(a)(2); collection actions may proceed against the debtor despite section 362(a)(6); and liens against the debtor’s property may be created, perfected and enforced regardless of section 362(a)(5).
In re Williams, 346 B.R. at 367. Also, a landlord can bring an eviction action against a debtor “with respect to” a lease. In re Gillcrese, 346 B.R. at 377 (citing 11 U.S.C. § 362(c)(3)(A)); see also In re Williams, 346 B.R. at 369 (discussing other potential options for creditors). A partial termination also protects creditors by protecting estate property. In re Jones, 339 B.R. at 365. It is not absurd that Congress may have sought to balance the *797interests of individual secured creditors with the interests of creditors as a whole by allowing Chapter 7 trustees sufficient time “to determine ... whether there is non-exempt equity in property of the estate that could be liquidated.”5 In re Williams, 346 B.R. at 369.
The court below concluded that, despite the language difference between sections 362(c)(3)(A) and 362(c)(4)(A)®, Congress did not intend to give two-time filers “significantly greater protection [under section 362(c)(3)(A)] than a debtor [under section 362(c)(4)(A)®] who is filing her third petition.” In re Jumpp, 344 B.R. at 27. The court reasoned that Congress instead intended that two-time filers get thirty-days protection from the stay and then the entire stay terminates, and three-time filers would get no stay at all. “It is the number of filings that is the critical distinction Congress was asking courts to make, not the extent to which the automatic stay applies.” Id. While a complete termination of the automatic stay would also have made sense, that is not what the statute provides. Section 362(c)(3)(A) provides for a partial termination of the stay, which, although a lesser penalty than complete termination, nonetheless discourages abusive filings and, therefore, is a result that is neither absurd nor demonstrably at odds with the intention of the drafters.
With regard to the Debtor’s residence, the automatic stay remains in effect to the extent that the residence is property of the bankruptcy estate. Because the automatic stay never lapsed with respect to property of the estate, it is unnecessary for the Panel to consider issues regarding extensions of the stay. Therefore, we decline to comment on the thirty-day timing provision of section 362(c)(3)(B) and the bankruptcy court’s conclusion that it lacked the power under section 105(a) to extend the automatic stay.
CONCLUSION
For the foregoing reasons, the bankruptcy court’s order denying the Debtor’s Motion for Determination and Motion to Reimpose the Automatic Stay is VACATED.
. Unless otherwise stated, all references to the “Bankruptcy Code,’’ the “Code,” "§ ,” "section” or to specific sections are to title 11 of United States Code, 11 U.S.C. §§ 101-1532, as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8.
. The bankruptcy court’s memorandum opinion involved two separate debtors in separate Chapter 13 cases, In re Jumpp and In re Okyere. The debtor in In re Okyere has not appealed the bankruptcy court's order.
. See, e.g., In re Pope, 351 B.R. 14 (Bankr.D.R.I.2006); In re Murray, 350 B.R. 408 (Bankr.S.D.Ohio 2006); In re Brandon, 349 B.R. 130 (Bankr.M.D.N.C.2006); In re Gillcrese, 346 B.R. 373 (Bankr.W.D.Pa.2006); In *792re Williams, 346 B.R. 361 (Bankr.E.D.Pa.2006); In re Harris, 342 B.R. 274 (Bankr.N.D.Ohio 2006); In re Jones, 339 B.R. 360 (Bankr.E.D.N.C.2006); In re Moon, 339 B.R. 668 (Bankr.N.D.Ohio 2006); In re Johnson, 335 B.R. 805 (Bankr.W.D.Tenn.2006); see also In re Baldassaro, 338 B.R. 178 (Bankr.D.N.H.2006) (discussing the issue but disposing of the case on other grounds); In re Paschal, 337 B.R. 274 (Bankr.E.D.N.C.2006) (same).
. Even if Congressional intent is contained in the "sparse” legislative history, "general legislative intent cannot overcome specific, unambiguous statutory language.” In re Gillcrese, 346 B.R. at 375, 376; In re Jumpp, 344 B.R. at 26 (describing the legislative history as "sparse”).
. Of course, a secured creditor may still file a motion for relief from the automatic stay pursuant to section 362(d). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487441/ | The Court differed in opinion as to the competency of the witness, and the witness was sworn.
Sarah, Negro, sworn. Smith, Wrotten, and Grumble, came in to the widow Nowels and asked her and Sally Stable who I belonged to, and said I had stole linen and they would take me before Squire Laws, they tied me and carried me to Vienna that night — which time the Attorney General admits was the time of taking, therefore the witness was discharged as incompetent.
Verdict for defendants, Job Smith and Shadrack Wrotten. Motion of defendants’ counsel against the Court’s certifying for costs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487442/ | Indictment for burglary.
The Court being doubtful of its having jurisdiction to try free Negroes for capital offences, the prisoner was remanded to prison. The witnesses recognized to appear at the next Court of Oyer and Terminer, to which court the Attorney General removes this cause by certiorari. By 1 Body Laws 94, Court of Oyer and Terminer only authorized to try capital' offences. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487443/ | Chief Justice Bassett.
Gentlemen, in this case which has been fully argued and the evidence fully before you, the point on which this cause must turn is whether the identity of the person is proved. There have been twenty witnesses examined in this cause, in some measure contradictory; you are to consider and weigh the evidence according to the credit you think it ought to have. In this case where the life of a man is depending, you are to be fully satisfied in your minds and consciences before you can convict, but, if you have a doubt remaining from the circumstances of his guilt, you will acquit.
Verdict not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487444/ | Chief Justice Bassett.
In this cause the indictment is well drawn etc. From the evidence the prisoner is not guilty of murder. If Thomas Bailey died from any other cause than the blows etc. from prisoner, he is not guilty, but, if otherwise, you must be satisfied Pompey caused his death before you can find him guilty. To convict of manslaughter the party must be engaged in an unlawful act.
Attorney General. I ask the Court to say if two men agree to fight it is unlawful, and if a party comes to his death by means thereof it is manslaughter.
Per Curiam.
It is.
{Quaere how far homicide is justifiable in defendant’s defense.)
Verdict: guilty of manslaughter and assess the value of Pompey at two hundred dollars. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487445/ | The Court consider that the Attorney General is entitled to separate fees. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487446/ | The counsel for defendant and the Attorney General agreed to submit this case to the jury, and Chief Justice Booth directed the jury to find defendant guilty of an assault and battery and false imprisonment, if they believed the evidence.
Verdict, guilty. Was to be fined twenty-five dollars. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487448/ | Chief Justice Booth.
Positive proof of a felony can seldom be given. Circumstantial evidence is sufficient to warrant the jury to convict the party; but that should satisfy the jury. The goods being found with the party is a strong presumption of his guilt, and especially if the party cannot account for his getting them into his possession.
Verdict for [ — ].3
Blank in manuscript. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487449/ | Chief Justice Booth.
On an indictment for this offense it is necessary the facts of penetration and emission be proved. The witnesses for the State (and there are none for the prisoner) have proved these facts. If you credit them, you will find him guilty, and in that case it will be proper for you to assess the value of the Negro, two-thirds of which by law is to be paid by the county to the owner.
Jury came down and found the prisoner guilty. Were not up above ten or fifteen minutes.
After some time the prisoner’s counsel was asked by the Court if he had anything to say why judgment should not pass upon the prisoner. He answered he had nothing to move in arrest of judgment.
The prisoner, also being asked, made no answer, and the Chief Justice of the Court proceeded to pass sentence agreeably to law, viz that he be taken to the jail from whence he came, and from thence to the place of execution, and be hanged until dead etc.
The said George was executed at Georgetown, agreeably to the sentence of the Court, in December, 1800. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487450/ | Per Curiam.
The question for you to decide depends on the evidence, whether guilty or not. The fact should be proved, but positive proof alone is not necessary to convict. Presumptive' evidence, where there is a concurrence of circumstances convincing the jury, is sufficient. In civil cases a preponderance of evidence is sufficient for you to convict; in criminal, you should, have proof.
Verdict, guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487451/ | Per Curiam.
Provided the jury find the fact that Chambers was one of the copartners it will authorize the jury to acquit the defendants as their counsel contend.
Verdict, guilty.
And motion by defendants’ counsel for new trial. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487453/ | Per Curiam.
As to second point made by counsel, the jury can take no notice of a conviction in Maryland unless the record be produced. If the evidence satisfies you, etc.
Verdict, not guilty. Motion for costs. Certificate granted. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494105/ | FINAL ORDER GRANTING DEFENDANT SUSAN LUNDBORG’S MOTION FOR SUMMARY JUDGMENT DISMISSING AMENDED COMPLAINT FOR AWARD OF ACTUAL DAMAGES, INCLUDING ATTORNEY’S FEES, COSTS AND PUNITIVE DAMAGES, PURSUANT TO 11 U.S.C. § 362(h)(1), 11 U.S.C. § 105(a) AND THE COURT’S INHERENT CONTEMPT POWERS
PAUL G. HYMAN, Chief Judge.
THIS MATTER came before the Court on August 21, 2006 upon Susan Lundborg’s (“Lundborg” or “Defendant”) Motion for Summary Judgment Dismissing Amended Complaint for Award of Actual Damages, Including Attorney’s Fees, Costs and Punitive Damages, Pursuant to 11 U.S.C. § 362(h)(1), 11 U.S.C. § 105(a) and the Court’s Inherent Contempt Powers (the “Motion For Summary Judgment”) [Adv. C.P.29].1 Gary J. Rotella, P.A., as Assignee of Ferrell Law’s Summary of Final Application for Compensation of Fees & Costs of Former Chapter 7 Trustee’s Counsel (“Rotella As Assignee”) and Debtor, James F. Walker, as Assignee of the Debtor’s Estate’s interest in the Cat Cay Property (“Debtor As Assignee”)2 filed the Complaint that initiated this adversary proceeding on June 20, 2006. An Amended Complaint for Award of Actual Damages Including Attorneys’ Fees, Costs and Punitive Damages, Pursuant to 11 U.S.C. § 362(h)(1), 11 U.S.C. § 105(a) and the Court’s Inherent Contempt Powers (“Amended Complaint”) [Adv.C.P.24] was filed August 7, 2006. Rotella As Assignee, Debtor As Assignee, and Gary J. Rotella & Associates, P.A. as unpaid administrative claim owner (“Rotella”) (collectively, “Plaintiffs”) are listed as Plaintiffs in the first paragraph of the Amended Com*881plaint.3 On November 2, 2006, Plaintiffs filed a Partial Response to Defendant’s [Motion for Summary Judgment] [Adv. C.P.69] (“Response”). On November 7, 2006, Defendant filed a Reply Brief in Support of [Defendant’s Motion for Summary Judgment] [Adv.C.P.70]. The parties filed a Joint Stipulation of Undisputed Facts Re: [Defendant’s Motion for Summary Judgment] [Adv.C.P.54] on October 13, 2006.
BACKGROUND
The Court takes judicial notice of the pleadings and proceedings in the main case.
1. On April 25, 2003, James F. Walker (“Debtor”) filed for relief under Chapter 7 of the Bankruptcy Code. See Petition [C.P.1].
2. On May 27, 2003, the Debtor filed Schedules [C.P.10] showing an insolvent estate with $101.00 in assets and $1,095,257.28 in liabilities. None of the scheduled liabilities was indicated by the Debtor to have been contingent, unliquidated, or disputed.
3. -Debtor’s Schedules listed real property known as Lot 32, North Cat Cay, Bahamas (the “Cat Cay Property”) as exempt on the basis that the property was held by the Debtor and his wife as joint tenants. However the Court sustained Linda Walden, the former Trustee’s (“Former Trustee Walden”) objection to this classification and found that the Cat Cay Property was not exempt. See Memorandum Order Sustaining Trustee’s Objection to Debtor’s Real Property Claimed As Exempt [C.P. 228] entered on February 6, 2004.
4. In 1996 Eleanor C. Cole, a judgment creditor of the Debtor, sought and received relief in the courts of the Bahamas for a judicial sale of the Cat Cay Property to satisfy her judgment. A September 3, 2002 Bahamian Court order authorized the sale of the Cat Cay Property to Lundborg. The sale, although authorized by the Bahamian Court, was not completed prepetition. See Bahamian Sale Order dated September 3, 2002 [Amended Complaint Ex. “B”].
5. On November 14, 2004 after a five day hearing, the Court found cause to remove Former Trustee Walden from the position of Chapter 7 Trustee.4 Deborah Menotte was appointed as Trustee on November 18, 2004, and she resigned on December 6, 2004 because she was not disinterested. Patricia Dzikowski (“Trustee”) was appointed successor Trustee on December 6, 2004.
6. On May 12, 2005, Lundborg timely filed Proof of Claim No. 5 (“Lundborg’s Proof of Claim”), wherein she asserted claims against the Debtors’ bankruptcy estate (“Estate”) for expenses incurred with respect to the Cat Cay Property.
7. On May 27, 2005, Debtor filed an Emergency Motion To Strike Susan Lundborg’s Proof Of Claim; Motion for Compensatory And Punitive Sanctions Against Lundborg, Wernick, Lubell, and Hughes, LLP Pursuant To 28 U.S.C. § 1927 and 11 U.S.C. §105 For Filing Fraudulent *882Proof Of Claim; and Motion To Immediately Refer Lundborg, Wernick, and Lubell To United State’s [sic] Attorneys Office For Criminal Prosecution For Filing Fraudulent Proof Of Claim Pursuant to 18 U.S.C. §§ 152 and 3571 [C.P. 926] (“Debtor’s Motion to Strike Claim”). Debtor’s Motion to Strike Claim sought sanctions against Lundborg and her counsel, Aviva Wernick and Daniel Lubell, for Lundborg’s having filed an allegedly fraudulent Proof of Claim. On July 29, 2005, the Court sua sponte struck the criminal referral portion of Debtor’s Motion to Strike Claim. Sua Sponte Order [C.P. 1109]. See infra ¶ 17.
8. On June 2, 2005, Debtor filed an Objection to Proof of Claim No. 5 [C.P. 935] (“Debtor’s Objection to Claim”). Debtor’s Objection to Claim was a one-page filing that incorporated Debtor’s Motion to Strike Claim in its entirety without adding any additional allegations.
9. On June 9, 2005, Trustee filed an Objection to [Lundborg’s] Claim No. 5 [C.P. 945] (“Trustee’s Objection to Claim”). Trustee’s Objection to Claim disclosed that the Trustee had entered into a settlement agreement with the Debtor (“Settlement Agreement”), whereby the Estate’s “right title and interest, subject to any and all claims, liens, and encumbrances, in the Cat Cay Property located in the Bahamas is being conveyed to the Debtor.” Trustee’s Objection to Claim maintained that to the extent Lundborg had any claim(s) secured by the Cat Cay Property, that claim would serve as an encumbrance against the real property, that claim would follow the real property, and that claim would be enforceable against it in the Bahamas. Trustee’s Objection to Claim was resolved by Lundborg withdrawing her Proof of Claim as part of an overall settlement between Trustee and Lundborg. See infra ¶ 14.
10. On June 15, 2005, Trustee filed a Motion By Trustee Patricia Dzikowski to Approve Settlement and Sale of the Bankruptcy Estate’s Right Title and Interest in the Bahamian Real Property at Cat Cay, Lot 32 [C.P.953] (“Trustee’s Motion to Approve Sale”) which sought the Court’s approval of, among other things, sale of the Estate’s interest in the Cat Cay Property to Rotella and the Debtor. Trustee’s Motion to Approve Sale included as Exhibit “A” the Settlement Agreement between Trustee and Debtor dated March 9, 2005.
11. On July 1, 2005, the Law Firm of Ferrell Law, P.A. (“Ferrell”) filed a final application seeking compensation and expenses in the amount of $629,239.86 for Ferrell’s representation of Former Trustee Walden. On August 18, 2005 the Court entered an Order Awarding Attorneys’ Fees and Costs (“Ferrell Fee Order”) [C.P.1124] to Ferrell in the amount of $536,552.36 (the “Ferrell Administrative Claim”). The Ferrell Fee Order noted that Rotella was the owner by assignment of the Ferrell Administrative Claim. The Ferrell Fee Order permitted Rotella to credit bid the full amount of the Ferrell Administrative Claim at any sale of the Estate’s assets. On August 23, 2005, the Court entered an Order of Substitution of Claim [C.P.1125] which substituted Rotella, transferee for Ferrell, as the claimant for this award of fees. However Rotella *883had disclosed in open Court as early as August 10, 2005 that he had acquired the Ferrell Administrative Claim. See Aug. 10, 2005 Hearing Tr. at p. 186 [C.P.1205].
12. On July 14, 2005, Rotella and the Debtor filed adversary proceeding number 05-3127-BKC-PGH-A against the Trustee seeking attorneys’ fees and costs in the amount of $637,559.68 allegedly incurred for services rendered to, and on behalf of, the Estate. The adversary proceeding was settled after resolving the objection of the United States Trustee, and on August 18, 2005 the Court entered an Order Awarding Attorneys’ Fees and Costs (“Rotella Fee Order”)[Adv. Proc. 05-3127, C.P.7] to Rotella in the amount of $220,492.35 (“Rotella Administrative Claim”). The Rotella Fee Order permitted Rotella to credit bid the full amount of the Rotella Administrative Claim at any sale of the Estate’s assets.
13. During July 2005, the Debtor and Lundborg filed sanctions motions against each other for alleged violations of the automatic stay in connection with prosecution of litigation in the Bahamas. See Debtor’s Motion for Contempt and Sanctions for Violations of 11 U.S.C. § 362 and Enforcement of Automatic Stay Against Susan Lundborg (“Debtor’s First Stay Sanctions Motion”) [C.P. 1004] and Lundborg’s Response to [Debtor’s First Stay Sanctions Motion] and Cross-Motion Against Debtor and Debtor’s Counsel for Contempt and Sanctions for Violations of 11 U.S.C. § 362 and 28 U.S.C. § 1927 and Enforcement of the Automatic Stay [C.P.1071]. The Order Denying Susan Lundborg’s Cross-Motion Against Debtor and Debtor’s Counsel for Contempt and Sanctions for Violation of 11 U.S.C. § 362 and 28 U.S.C. § 1927 and Enforcement of the Automatic Stay [C.P.1182] determined that the Debtor had not violated the automatic stay. However the Court found that Lundborg had willfully violated the automatic stay by authorizing her Bahamian counsel to file two separate notices appealing the Bahamian Court orders of December 7, 2004 and February 28, 2005. See Order Granting Debtor’s Motion for Contempt and Sanctions For Violation of 11 U.S.C. § 362 and Enforcement of the Automatic Stay Against Lundborg [C.P.1138] (“Order Determining Stay Violation”); see infra ¶ 17.
14.On August 2, 2005, Trustee filed a Motion to Approve Resolution of Trustee’s Objection to Claim No. 5 of Susan Lundborg [C.P.1085] (“Trustee’s Motion to Approve Lundborg Settlement”), which included as Exhibit “A” a Stipulation for Resolution of Trustee’s Objection to Claim No. 5 and Motion to Dismiss Adversary Proceeding (“Stipulation”). The Stipulation, among other things, provided for mutual releases between the Trustee and the Estate, and Lundborg. On August 5, 2005, the Debtor filed an Objection to Stipulation for Resolution of Trustee’s Objection to Claim No. 5 and Motion to Dismiss Adversary Proceeding [C.P. 1104] (“Debtor’s Objection to Lundborg Settlement”) which contained Debtor’s redlined version of the Stipulation. Among other things, Debtor’s Objection to Lundborg Settlement proposed that language *884releasing Lundborg from the automatic stay be deleted from the Stipulation. Debtor’s Objection to Lundborg Settlement also stated that Debtor would raise ore tenus objections on a point by point basis at the August 10, 2005 hearing on Trustee’s Motion to Approve Lundborg Settlement. Debtor’s ore ten-us objections raised at the hearing concerned the timing of Lundborg’s stay release and the related timing of the Court’s consideration of other matters, primarily Trustee’s Motion to Approve Sale. Debtor raised no objection to the Stipulation based upon the fraud allegations contained in Debtor’s Motion to Strike Claim. Debtor’s objections were resolved in open Court at the August 10, 2005 hearing in a manner that was satisfactory to the Debtor at the time. See Order Striking First Rule 60(b) Motion at 13-26. On August 29, 2005 the Court entered the Order Approving Resolution of Tmstee’s Objection to Claim No. 5 of Susan Lundborg [C.P.1145](the “Order Approving Lundborg Settlement”). In addition to approving the conditional dissolution of stay and the release of claims against Lundborg, the Order Approving Lundborg Settlement stated that Lundborg would not be prejudiced from bidding at a sale of the Estate’s interest in the Cat Cay Property. It also provided for Lundborg’s withdrawal of her Proof of Claim which eliminated the need for an evidentiary hearing on any objection to the Proof of Claim.
15. On September 1, 2005, the Court entered an Order Granting Motion to Approve Settlement and Sale as Modified [C.P. 1153] (the “Order Approving Settlement and Sale”) which approved the August 25, 2005 sale of the Estate’s interest in the Cat Cay Property “to the extent same exists” to Debtor and Rotella for the sum of $813,044.71, which represented the total of Rotella’s credit bid of $757,044.71— the total amount due on Rotella’s administrative claims — plus $56,000 in cash. Id. ¶¶ 1 and 3. As part of the Settlement Agreement, Debtor and Rotella released, waived and/or subordinated any and all claims against the Estate and Trustee. The Settlement Agreement also provided for Trustee’s dismissal of the adversary proceeding in which Trustee objected to Debtor’s discharge.5
16. On June 16, 2006, more than ten months after the hearing on Trustee’s Motion to Approve Lundborg Settlement, Rotella As Assignee and Debtor As Assignee filed a Motion for Relief From August 29, 2005 Order Approving Resolution of Tmstee’s Objection to Claim No. 5 of Susan Lundborg (C. P.11I5) Pursuant to Rule 60(b), Fed.R.Civ. P. [C.P. 1587] (“First Rule 60(b) Motion”). The First Rule 60(b) Motion sought to set aside the August 29, 2005 Order Approving Lundborg Settlement based upon allegations that the Trustee’s Stip*885ulation with Lundborg had been obtained by fraud and/or fraud upon the Court. In the alternative, the First Rule 60(b) Motion sought to vacate paragraph 4 of the Order - Approving Lundborg Settlement, which provided for dissolution of the stay so that Lundborg could pursue her interests relating to the Cat Cay Property in the Bahamas. As discussed below, the Court entered an Order Granting [Lundborg’s Motion To Strike [the First Rule 60(b) Motion]] [C.P.1735]. See infra ¶¶ 19, 22, and 24.
17.On June 20, 2006 the Court entered a Memorandum Order Granting in Part and Denying in Part Susan Lundborg’s Motion to (1) Quash Subpoena and Enter Protective Order, and for Contempt and Sanctions Against Debtor and His Counsel for Violation of the Mediation Order; (2) Dismiss All Sanctions Motions of Debtor and His Counsel Against Her; and (3) Enlarge Her Time to Complete the Record and Issues with Respect to Appeals Affected by Debtor’s Sanction Motions [C.P.1589] (“Memorandum Order”), which ruled upon a series of sanctions motions and cross-motions between Lundborg, and Rotella and the Debtor. The Memorandum Order determined that the Debtor lacked standing to object to, or move to strike, Lundborg’s Proof of Claim and consequently denied the sanctions portion of Debtor’s Motion to Strike Claim. Memorandum Order at 18-28. The Debtor was also found to be without standing to seek sanctions for Lundborg’s violation of the stay because the Debtor was not a person aggrieved by Lundborg’s violation of the stay against an interest in property that was owned by the Estate when the stay violations occurred. In addition, the Memorandum Order determined that any claims for damages to the Estate resulting from Lundborg’s violation of the automatic stay, including any administrative attorneys’ fees, had been released by the Trustee pursuant to the Order Approving Lundborg Settlement. Therefore the Court denied the damages portion of Debtor’s First Stay Sanctions Motion. Id. at 33-37; see supra ¶ 13. The Complaint for Award of Actual Damages Including Attorneys’ Fees, Costs and Punitive Damages, Pursuant to 11 U.S.C. § 362 (“Complaint”) [Adv. C.P. 1] which initiated the instant adversary proceeding was filed on June 20, 2006, the same day that the Court entered the Memorandum Order in the main case.
18. On June 19, 2006, Debtor filed a Motion for Award of Damages, Including Attorneys’ Fees, Costs and Punitive Damages Against Susan Lundborg for Her Willful Violation of the Automatic Stay Provision of 11 U.S.C. § 362 [C.P. 1592] (“Debt- or’s Second Stay Sanctions Motion”). Debtor’s Second Stay Sanctions Motion was denied as moot based upon the Memorandum Order’s determination that the Debtor lacked standing to seek the relief requested. See Order Denying [Debtor’s Second Stay Sanctions Motion] [C.P. 1744](“Order Denying Debtor’s Second Stay Sanctions Motion”) entered on September 21, 2006.
19. On July 18, 2006, Lundborg filed a Motion to Dismiss [Complaint] *886(“Motion to Dismiss”)[Adv.C.P.9]. Also on July 18, 2006, Lundborg filed a Motion to Strike [the First Rule 60(b) Motion] (“Lundborg’ s Motion to Strike Rule 60(b) Motion”) [C.P.1653]. Both of these motions were set for hearing for August 8, 2006.
20. On July 25, 2006, Lundborg filed a Motion for Stay of Proceedings and Discovery as to the instant adversary proceeding and the First Rule 60(b) Motion (“Motion to Stay Discovery”)in both the adversary and in the main case [C.P. Adv.ll; C.P. 1665]. These motions were also set for hearing for August 8, 2006.
21. On August 7, 2006 at 4:24 P.M., the day before the hearing on Lundborg’s Motion to Dismiss, Plaintiffs filed the Amended Complaint. The Amended Complaint added 11 U.S.C. § 105(a) and the Court’s inherent power as grounds for the relief originally sought solely pursuant to 11 U.S.C. § 362(k)(l).
22. The following orders were entered pursuant to the August 8, 2006 hearing: 1) Order Denying Without Prejudice Lundborg’s Motion to Dismiss ([Adv. C.P.25]; 2) Order Granting [Motion to Stay Discovery] [Adv.C.P.26]; 3) Order Granting [Motion to Stay Discovery] [C. P.1707]; and 4) Order Granting [Lundborg’s Motion to Strike Rule 60(b) Motion] (“Order Striking First Rule 60(b) Motion”) [C.P.1735]).
23. On August 18, 2006, Rotella and Debtor filed a Motion for Relief from Order Pursuant to Rule 60(b)(1) and (6), Fed.R.Civ. P. (the “Second Rule 60(b) Motion”) [C.P. 1712], in which Rotella and Debtor sought to modify the September 1, 2005 Order Approving Settlement and Sale to reflect that Rotella and Debtor’s offer for the Estate’s interest in the Cat Cay Property was only $56,000 in cash rather than $813,044.71 in cash and credit bids. On September 6, 2006, the Court entered a Corrected Order Denying James F. Walker.; and Gary J. Rotella & Associates, P.A.’s Motion for Relief from Order Pursuant to Rule 60(b)(1) and (6), Fed.R.Civ. P. [C.P. 1733] (“Order Denying Second Rule 60(b) Motion”).6
24. On September 8, 2006, the Court entered the Order Striking First Rule 60(b) Motion, wherein the Court found that the movants had not been prevented from fully presenting their case by any fraud, misrepresentation or other misconduct of Lundborg so as to warrant relief from the Court’s final Order Approving Lundborg Settlement entered one year earlier. See Order Striking First Rule 60(b) Motion at 10-13.7
25. On September 14, 2006, instead of timely filing a Response to Defendant’s Motion for Summary Judgment per the Court’s Order Continuing Pretrial Conference and *887Setting Briefing Schedule [Adv. C.P.30], Plaintiffs filed a Motion for Default, or in the Alternative, Motion to Strike the Order Continuing Pretrial Conference and Setting Briefing Schedule on Defendant Susan Lundborg’s Motion for Summary Judgment, or to Extend Time for Plaintiffs to Respond to Defendant’s Motion for Summary Judgment, and to Grant Plaintiffs Adequate Time for Discovery in Response to Defendant Susan Lundborg’s Motion for Summary Judgment (“Default Motion”)[Adv. C.P.32]. On September 26, 2006, the Court entered an Order Denying in Part and Granting in Part the Alternative Relief Sought in Motion for Default [Adv. C.P.42] wherein the Court granted Plaintiffs’ request for an extension of time to submit their response brief. The remaining relief requested in Plaintiffs’ Default Motion was set for hearing for October 6, 2006. The hearing was continued until October 18, 2006 as requested in Plaintiffs’ Emergency Motion to Continue Hearing. On October 23, 2006, the Court denied the remaining relief requested in Plaintiffs’ Default Motion including Plaintiffs’ request for additional time to conduct discovery. See Order [Adv. C.P. 59].
CONCLUSIONS OF LAW
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157.
I. The Summary Judgment Standard
Federal Rule of Civil Procedure 56(c), made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056(c), provides that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rice v. Branigar Org., Inc., 922 F.2d 788 (11th Cir.1991); Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir.1987); In re Pierre, 198 B.R. 389 (Bankr.S.D.Fla.1996). Rule 56 is based upon the principle that if the court is made aware of the absence of genuine issues of material fact, the court should, upon motion, promptly adjudicate the legal questions which remain and terminate the case, thus avoiding the delay and expense associated with a trial. See United States v. Feinstein, 717 F.Supp. 1552 (S.D.Fla.1989).
In considering a motion for summary judgment, “the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed R. Civ. P. 1). “Summary judgment is appropriate when, after drawing all rea*888sonable inference in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.” Murray v. National Broad. Co., 844 F.2d 988, 992 (2d Cir.1988).
II. Defendant’s Motion for Summary Judgment and Plaintiffs’ “Partial” Response
The Amended Complaint represents at least the sixth8 direct or indirect attempt by Debtor, Rotella, Debtor As Assignee and/or Rotella As Assignee, to seek sanctions, compensatory damages and punitive damages against Lundborg for her having filed an allegedly fraudulent Proof of Claim and/or for her having violated the automatic stay by pursuing litigation in the Bahamas concerning the Cat Cay Property. Defendant argues that she is entitled to summary judgment as a matter of law on the following grounds: Plaintiffs’ lack of standing including, but not limited to, Rotella and Rotella As Assignee not being “individuals” as required for damages pursuant to 11 U.S.C. § 362(k), res judicata, law of the case, release, and satisfaction.
Plaintiffs’ Response to Defendant’s Motion for Summary Judgment appears to be a badly edited version of an appellant brief as evidenced by the Response’s references to-this proceeding as “the instant appeal” and to the Plaintiffs as the “Appellant”. See Response ¶¶ 49 and 70. It is therefore not surprising that Plaintiffs’ Response is generally unresponsive to the legal arguments presented in Defendant’s Motion for Summary Judgment. As previously stated by the Court, this case has dragged on unnecessarily for three and one-half years in part due to the filing of briefs similar to Plaintiffs’ Response, i.e., the filing of sloppy “kitchen sink” briefs that are unfocused and oftentimes incoherent. Rather than Plaintiffs using the extended time granted by the Court to respond to the legal arguments in the Defendant’s Motion for Summary Judgment,9 Plaintiffs’ Response inappropriately attacks final orders of this Court which are now on appeal to the District Court. The Response’s lengthy arguments regarding the Court’s analysis in its final orders are misdirected here. The Court may not and will not address *889arguments regarding the propriety of its final orders that are now on appeal.
The Response, which is designated by the Plaintiffs as a “partial” Response, maintains that Plaintiffs cannot formulate a complete response without conducting additional discovery. “[Courts have] wide discretion in deciding whether a party is entitled to an opportunity for discovery.” Lavender v. Kearney, 2006 WL 2971325, at *3 (11th Cir.2006).10 “And under Federal Rule of Civil Procedure 56(f), a court may allow a plaintiff to conduct additional discovery upon a showing that it will enable him to rebut the summary judgment motion.” Id. “A Rule 56(f) motion must be supported by an affidavit which sets forth with particularity the facts the moving party expects to discover and how those facts would create a genuine issue of material fact precluding summary judgment.” Harbert Int’l, Inc., v. James, 157 F.3d 1271, 1280 (11th Cir.1998). Plaintiffs’ Response states that “it is highly likely that, at the very least, there will be numerous, additional material issues of fact and law in dispute with regards to [the Motion for Summary Judgment].” Response ¶ 87. Plaintiffs’ Response also references Rotella’s Amended Affidavit in Support of [Motion for Default] [Adv.C.P.57] (“Affidavit”), however said Affidavit fails to show how additional discovery would enable Plaintiffs to rebut the Motion for Summary Judgment’s legal arguments and affirmative defenses of standing, res judicata, release, and satisfaction.
The Court has stated that in considering the Motion For Summary Judgment the Court will consider Plaintiffs’ allegations regarding Lundborg’s Proof of Claim as true, and the Court will take all reasonable inferences in favor of the Plaintiffs who are the nonmoving parties. See Order at 3 [Adv.C.P. 59]. Moreover, having been developed over three and a half years, the record in this case is extensive. The Motion for Summary Judgment is based upon the application of legal principles to that extensive record. “Whether to grant or deny a Rule 56(f) motion for discovery requires the court to balance the movant’s demonstrated need for discovery against the burden such discovery will place on the opposing party.” Harbert Int’l, 157 F.3d at 1280. The Plaintiffs here have failed to demonstrate that additional discovery is needed to respond to the legal issues raised in the Motion for Summary Judgment. The Court’s displeasure with the burdens engendered and the unnecessarily excessive costs already incurred in this case are well known to the parties. The amount of attorney’s fees and costs, not to mention the expenditure of judicial resources, has been enormously wasteful. Allowing additional discovery would unnecessarily squander even more resources. Thus, in ruling upon Plaintiffs’ Default Motion, the Court determined that the additional cost of conducting discovery on factual issues was unwarranted at this stage of the proceedings. See Order at 3 [Adv. C.P. 59]. The Response’s contention that without additional discovery “it is virtually impossible for Plaintiffs to file a complete Response” (Response ¶ 12) is without merit. Thus after having had ten weeks to respond, Plaintiffs made a fully informed *890decision to file a “partial” response that re-argues Plaintiffs’ need for factual discovery while failing to address the legal arguments presented in the Motion for Summary Judgment.
Having taken judicial notice of the record and having reviewed the submissions of the parties, the Court finds that the material facts of this matter are not in dispute. For the reasons discussed below, the Court finds that entry of summary judgment in favor of the Defendant is appropriate as a matter of law.
III. Law of Former Adjudication
“Application of res judicata is central to the fundamental purpose of the judiciary-the conclusive resolution of disputes.” Curry v. Baker, 802 F.2d 1302, 1310 (11th Cir.1986) (citing Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979)). “Finality Telieve[s] parties of the cost and vexation of multiple lawsuits, conservefs] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication.’ ” Id. (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980)(alterations in original)). “Under res judicata, also known as claim preclusion, a final judgment on the merits bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that action.” In re Piper Aircraft Corp. 244 F.3d 1289, 1296 (11th Cir.2001). Claim preclusion bars subsequent litigation when the following conditions are met: (1) the prior decision was rendered by a court of competent jurisdiction; (2) there was a final judgment on the merits; (3) both cases involve the same parties or their privies; and (4) both cases involve the same causes of action. Id.
The law of the case doctrine is closely related to res judicata. “The [law of the case] doctrine is ‘based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter’ ... [the] litigation should come to an end.” Morrow v. Dillard, 580 F.2d 1284, 1290 (5th Cir.1978) (citations omitted).11 “The doctrine of ‘law of the case’ is a rule of practice under which a rule of law enunciated by a federal court ‘not only establishes a precedent for subsequent cases under the doctrine of stare decisis, but (also) establishes the law which ... [the court] itself will, normally, apply to the same issues in subsequent proceedings in the same case.’ ” Id. at 1289 (quoting IB Moore’s Federal Practice P 0.404(l)(2d ed.1974)). While claim preclusion bars re-litigation not only of claims raised, but also of claims that could have been raised, law of the case “applies only to issues that were decided in the former proceedings.” Id. at 1290. “Nevertheless, ‘the doctrine does mean that the duty of a lower court to follow what has been decided at an earlier stage of the case comprehends things decided by necessary implication as well as those decided explicitly.’ ” Id. (quoting Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1320 (5th Cir.1978)); see also In re Justice Oaks II, Ltd., 898 F.2d 1544, 1550 n. 3 (11th Cir.1990).
Applying the elements for claim preclusion, the Court notes that it had competent jurisdiction to enter the orders on which it here relies for application of res judicata (the “Preclusive Orders”) 12. Furthermore, the Preclusive Or*891ders are now final orders. Contrary to the unsupported argument repeatedly advanced in the Plaintiffs’ Response, “[t]he federal rule is that the pendency of an appeal does not suspend the operation of an otherwise final judgment as res judicata. ” Hunt v. Liberty Lobby, Inc., 707 F.2d 1493, 1498 (D.C.Cir.1983). Thus, for example, the Memorandum Order is a final order with res judicata effect despite the pendency of an appeal. Indeed the parties could not have taken their appeal and cross-appeal to District Court were it not a final order. The Order Approving Lundborg Settlement is also a final order.13 While orders approving settlements are not final orders with res judicata effect as to the merits of the underlying claims, such orders are final orders as to the matters specified in the settlement. See United States v. Ameritrade Terminals, Inc. 177 Fed.Appx. 855, 858 (11th Cir.2006); Justice Oaks II, 898 F.2d at 1549 (11th Cir.1990); Jones v. Texas Tech University, 656 F.2d 1137, 1142 n. 2 (5th Cir.1981)(“when fairly arrived at and properly entered into, (settlement agreements) are generally viewed as binding, final, and as conclusive of rights as a judgment”)(gwiing Thomas v. Louisiana, 534 F.2d 613, 615 (5th Cir.1976) (alterations in original)). The remaining Preclusive Orders are also final orders, the most recently entered of these orders have been appealed by one or more of the following parties: the Debtor, the Debtor As Assignee, Rotella and/or Rotella As Assignee.14
Application of claim preclusion also requires that the contested matter in the former adjudication involve the same parties or their privies. “For purposes of determining the applicability of res judicata ... identity of interests is equivalent to privity.” In re Medomak Canning, 922 F.2d 895, 901 (1st Cir.1990). To the extent that the final Preclusive Orders involved either the Debtor, Rotella, the Debtor As Assignee and/or Rotella As Assignee (or some combination thereof), the movants therein and the Plaintiffs here are identical or in privity. The Debtor As Assignee is in privity with himself and Rotella As Assignee is in privity with himself since their respective interests as assignees are identical to their respective individual interests.
The requirement that the current and former adjudication involve the same causes of action is also satisfied here. “In general, cases involve the same cause of action for purposes of res judicata if the present case ‘arises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action.’ ” Israel Discount Bank, Ltd. v. Entin, 951 F.2d 311, 315 (11th Cir.1992)(quoting Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1503 (11th Cir.1990)). “Put another way, they must ‘arise out of the same transaction or series of transactions.’” Id. (quoting Justice Oaks II, 898 F.2d at 1551). “[R]es judicata ‘extends not only to the precise legal theory presented in the previous litigation, but to all legal theories and claims arising out of the *892same operative nucleus of fact.’ ” Piper Aircraft, 244 F.3d at 1295 (quoting Olmstead v. Amoco Oil, Co., 725 F.2d 627, 632 (11th Cir.1984)). “ ‘In determining whether the causes of action are the same, a court must compare the substance of the action, not their form.’ ” Israel Discount Bank, 951 F.2d at 315 (quoting I.A. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541, 1549 (11th Cir.1986)). “The court next determines whether the claim in the new suit was or could have been raised in the prior action; if the answer is yes, res judicata applies.” Piper Aircraft, 244 F.3d at 1296.
The Amended Complaint alleges that Lundborg’s violation of the automatic stay by taking two appeals in the Bahamas regarding the Cat Cay Property, in conjunction with Lundborg’s filing a fraudulent Proof of Claim as part of a deliberate scheme to manipulate the Trustee into entering into an unwarranted settlement, caused the Debtor As Assignee to lose the value of the Estate’s interest in the Cat Cay Property that he purchased from the Estate at a sale conducted by this Court on August 25, 2005. These same allegations are alleged to have caused Rotella and Rotella As Assignee to be unable to collect payment for their respective administrative claims.
The substance of the Amended Complaint’s allegations i.e., the stay violation allegations and the fraudulent Proof of Claim allegations, have been brought before this Court repeatedly by the Debtor in Debtor’s Motion to Strike Claim, Debt- or’s First Stay Sanctions Motion, Debtor’s Second Stay Sanctions Motion; and by Debtor As Assignee and Rotella As Assignee in their First Rule 60(b) Motion, and in them Motion for Reconsideration of the Court’s Order Striking First Rule 60(b) Motion. As more fully detailed below, in ruling upon these motions, the Court determined that the Debtor lacked standing to seek the relief requested, and that the claims of the Debtor As Assignee were released by the Trustee prior to the Debtor acquiring the Estate’s interest in the Cat Cay Property. As to Rotella and Rotella As Assignee’s claims that they hold unpaid administrative claims, the Order Approving Settlement and Sale and the Order Denying Second Rule 60(b) Motion both show that Rotella credit bid these administrative claims in full and they have been satisfied.
Thus the Court finds that the four requirements for application of res judicata are satisfied: 1) the Court had proper jurisdiction; 2) the Preclusive Orders are final orders; 3) the Plaintiffs are identical to, or in privity with, the parties in the former proceedings; and 4) the claims arise out of the same nucleus of operative fact as the former proceedings. The Court therefore finds that the claims raised by Plaintiffs in the Amended Complaint are barred by the principles of claim preclusion.
Alternatively, the issues pertinent to Plaintiffs’ claims which have been previously adjudicated by this Court are now the law of the case. Pursuant to the doctrine of law of the case, by necessary implication the Court’s prior decisions in these proceedings bar the issues raised by the Plaintiffs in the Amended Complaint. The res judicata effect of the Court’s final orders as they impact the Plaintiffs’ claims in the Amended Complaint is more fully discussed below.
IV. Debtor As Assignee’s Claims Were Released By the Trustee
A. Stay Violation Allegations
In the Amended Complaint, Debt- or As Assignee seeks attorneys’ fees, costs and punitive damages for Lundborg’s stay *893violations pursuant to 11 U.S.C. § 362(k)(l) which states:
Except as provided in paragraph (2), an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.15
11 U.S.C. § 362(k)(l).
Although the Order Determining Stay Violation found that Lundborg violated the automatic stay through her Bahamian filing of two appeals concerning the Cat Cay Property, the Memorandum Order found that the Debtor lacked standing to seek sanctions against Lundborg based upon those stay violations. See Memorandum Order at 33-37.16 The Memorandum Order reasoned that:
In this case, Debtor’s interest in the property was ceded to the Estate when Debtor filed his Chapter 7 petition for relief, and therefore the stay violations could not and did not diminish Debtor’s property, increase his burdens, or impair his rights. Thus the Court does not find that Debtor is a person aggrieved by Lundborg’s violations of the automatic stay against an interest in property that was owned by the Estate, not Debt- or, when the stay violations occurred. The damage that may have been caused by the stay violations, if any, was damage to the Estate, not to Debtor. Accordingly, Debtor is without standing to seek sanctions for violation of the stay and Debtor’s Stay Sanctions Motion is denied.
Memorandum Order at 37.
The Memorandum Order further determined that the Trustee, not the Debtor, was the party with standing to seek sanctions for violation of the automatic stay against property of the Estate.
If there had been any damage as a consequence of a stay violation against estate property, it would necessarily have been damage to the estate reflected in additional attorneys’ fees incurred by the estate. As the individual charged with protection of the estate for the benefit of creditors, the Chapter 7 trustee is the party with standing to seek damages for violation of the automatic stay against property of the estate.
Id. at 35.
As distinguished from the Debtor, the Debtor As Assignee now seeks damages *894against Lundborg for her having violated the stay by taking two Bahamian appeals concerning the Cat Cay Property. The Trustee however released the Estate’s claims against Lundborg prior to the Debtor As Assignee bidding for and acquiring the Estate’s interest in the Cat Cay Property. The Order Approving Lundborg Settlement provided for mutual releases between the Trustee, the Estate, Lundborg and their assigns as stated:
The Trustee, and the Estate, and Ms.Lundborg, mutually release each other and their attorneys, representatives, designees and assigns from any claims, demands, obligations liabilities and causes of action of any kind or character that they may have against each other in or arising from this case, including any claims for possible violations of the automatic stay, from the beginning of the world to the date of this Order.
Order Approving Lundborg Settlement ¶ 7; see also Order Striking First Rule 60(b) Motion at 13; Memorandum Order at 16-17.
The Order Striking First Rule 60(b) Motion, further determined that the Debt- or As Assignee’s claims were derivative of the Trustee and that those claims were released pursuant to the Order Approving Lundborg Settlement. See Order Striking First Rule 60(b) Motion at 13. Therefore the Amended Complaint’s claims by Debt- or As Assignee for stay violation damages against Lundborg are also derivative of the Trustee. By necessary implication, Debtor As Assignee’s claims as contained in the Amended Complaint were also released pursuant to the Order Approving Lundborg Settlement. These claims are now barred from relitigation by the principles of claim preclusion and the doctrine of law of the case.
The Order Approving Lundborg Settlement also provided that:
... all injunctions or stays that may exist in this case with respect or related to the [Cat Cay] Property or Ms. Lundborg or the pursuit or enforcement in the Bahamas of such rights, claims or interests shall be dissolved and shall be of no force or effect; provided however that Ms. Lundborg shall not effect title to the Bahamian Property during the earlier of 30 days from this Order or 10 days after entry of an Order Approving a Sale of the Bankruptcy Estate’s interest in the [Cat Cay] Property;
Order Approving Lundborg Settlement ¶ 4.
Thus not only were claims for past actions released, the stay was dissolved to permit Lundborg to pursue her claims in the Bahamas respecting the Cat Cay Property.
In addition, the Court notes that the Debtor had full knowledge that his acquisition of the Estate’s interest in the Cat Cay Property was subject to the claims and appeals of Lundborg.
The Order Approving Lundborg Settlement provided that:
The Trustee shall sell the Bankruptcy Estate’s right title and interest in and related to the [Cat Cay] property, if any, subject to whatever rights, claims and interest may exist in the Bahamas in or with respect to the Bahamian Property, including, without limitation, all rights, claims or interests of Ms. Lundborg, if any, that are currently the subject of appeals in the Bahamas.
Id. ¶ 6 (emphasis in original); Memorandum Order at 17.
The Order Approving Settlement and Sale, drafted by Debtor’s counsel, also noted that funds tendered by Debtor were “in exchange for Trustee’s right, title and in*895terest in [the] Cat Cay [Property] to the extent same exists.’’ Order Approving Settlement and Sale ¶ 1 (quoting March 9, 2005 Settlement Agreement)(emphasis added). Thus the Debtor purchased the Estate’s interest, if any or to the extent same exists, subject to Lundborg’s claims as disclosed in Trustee’s Motion to Approve Lundborg Settlement and subject to litigation in the Bahamas as disclosed in open court by Trustee’s counsel, Mr. Walsh, prior to Debtor bidding at the August 25, 2005 sale hearing:
MR. WALSH: The other aspect of what we’re selling is again, subject to liens or claims or encumbrances. Ms. Lundborg does have an order by which she was, again, its Bahamian law and I don’t want to use the wrong term, but in effect she was entitled to purchase both the interest of the debt- or and the nonfiling spouse in the Bahamas. That order has subsequently been reversed and is currently on appeal by Ms. Lundborg again in the Bahamas.
Again, we’re selling this interest subject to whatever the outcome of that Bahamian appeal may be.
Order Striking Rule 60(b) Motion at 25 (quoting August 25, 2005 Transcript at p. 26 [C.P.1184])
As previously stated by the Court, if the Debtor As Assignee wasn’t “willing to accept the risk that Lundborg might prevail on appeal in the Bahamas, [he] shouldn’t have acquired the Cat Cay Property.” Order Striking Rule 60(b) Motion at 26.
B. Fraud Allegations
Plaintiffs’ arguments that Lundborg engaged in a fraudulent scheme by filing a fraudulent Proof of Claim to obtain an unwarranted settlement with Trustee is also barred by claim preclusion and law of the case. The substance of the fraud allegations were brought before the Court in Debtor’s Motion to Strike Claim. The Memorandum Order determined that the Debtor lacked standing to object to, or move to strike, Lundborg’s Proof of Claim. See Memorandum Order at 18-28. The Memorandum Order noted that it was the Trustee’s role to examine and object to claims, not the Debtor’s. The Memorandum Order also noted that Debtor’s Motion to Strike Claim had been rendered moot pursuant to the Order Approving Lundborg Settlement which stated that “the withdrawal of Lundborg’s Proof of Claim, which ‘resolves the Trustee’s Objection and Motion and moots any other objections to her Proof of Claim.’ ” Id. at 16 and 28 (quoting Order Approving Lundborg Settlement at ¶ 1).
The fraud allegations contained in Debt- or’s Motion to Strike Claim were repeated “nearly verbatim” and expounded upon by Debtor As Assignee and Rotella As Assignee in their First Rule 60(b) Motion. See Order Striking First Rule 60(b) Motion at 11. Those allegations are presented once again in the Amended Complaint. The Order Striking First Rule 60(b) Motion determined that:
... the substance of the allegations are not new. The Rule 60(b) Movants [Plaintiffs here] failure to raise the allegations contained in the Rule 60(b) Motion in their respective capacities as “assignees” at the August 10, 2005 HearingU by a timely filed motion for rehearing or by a timely filed appeal does not provide grounds pursuant to Rule 60(b)(3) to set aside a final order of the Court entered one year ago.
Id. at 11.
The Order Striking First Rule 60(b) Motion further stated:
Even if all of the allegations in the Rule 60(b) Motion are true, the Rule 60(b) *896Movants [Plaintiffs here] were not prevented from presenting their case by any fraud, misrepresentation or other misconduct of Lundborg.
Id. at 10.
Thus based upon the same fraud allegations advanced in Debtor’s Motion to Strike Claim, the Plaintiffs attempted in their First Rule 60(b) Motion to set aside the Order Approving Lundborg Settlement which provided for the release of Lundborg from claims by the Estate. The Trustee’s Motion to Approve Lundborg Settlement was approved by the Court after a properly noticed, full and fair hearing. Indeed, the Order Striking First Rule 60(b) Motion details how the Court painstakingly went through the Stipulation line by line at the hearing, thereby affording anyone who wished an opportunity to raise any objection. See Order Striking First Rule 60(b) Motion at 14-16. By virtue of Debtor’s having earlier filed the Motion to Strike Claim, Plaintiffs knew the substance of the fraud allegations at the time of the hearing on Trustee’s Motion to Approve Settlement. Yet Plaintiffs failed to raise any objection based upon the fraud allegations at that hearing. See Order Striking First Rule 60(b) Motion at 10-11. In the Court’s view, Rotella’s failure to timely raise the fraud allegations in opposition to Trustee’s Motion to Approve Lundborg Settlement was a tactical decision as part of a larger strategy to enable Debtor and Rotella to purchase the Estate’s interest in the Cat Cay Property without objection from Lundborg.17 See Order Striking First Rule 60(b) Motion at 13-26. Thus the Plaintiffs could have raised the fraud allegations in opposition to Trustee’s Motion to Approve Lundborg Settlement but they did not. Plaintiffs having chosen not to timely raise the fraud allegations at the August 10, 2005 hearing on Trustee’s Motion to Approve Lundborg Settlement, are precluded from raising them now.
V. Rotella and Rotella As Assignee’s Claims Were Satisfied
The Amended Complaint alleges that as a result of Lundborg’s automatic stay violations and as a result of Lundborg’s allegedly fraudulent conduct regarding her Proof of Claim, Rotella and Rotella As Assignee now own uncollectible and unpaid administrative claims for attorneys’ fees. Rotella and Rotella As Assignee seek damages against Lundborg pursuant to 11 U.S.C. § 362(k)(l), 11 U.S.C. § 105(a), and the Court’s inherent power.
“[U]nder § 362 [ (k)(l) ] ... the term ‘individual’ is limited to natural persons and does not include corporations or other artificial entities.” Jove Eng’g. Inc., v. Internal Revenue Service, 92 F.3d 1539, 1552-53 (11th Cir.1996). Thus as a professional association, Rotella is ineligible for stay violation damages pursuant to 11 U.S.C. § 362(k)(l). “Unlike individuals, corporations are still limited to the discretionary remedies of § 105.” Id. at 1552. While 11 U.S.C. § 105(a) enables the Court to “issue any order, process or judgment that is necessary or appropriate to carry out the provisions of [Title 11]”, the relief requested by Rotella and Rotella As *897Assignee is unwarranted because their administrative claims have been satisfied.
Rotella’s credit bidding of the full amount of his administrative claims was discussed in the Court’s Order Denying Second Rule 60(b) Motion:
On September 1, 2005, the Court entered [the Order Approving Settlement and Sale] which approved sale of the Estate’s interest in the Cat Cay Property to Debtor and Rotella. The Order Approving Settlement and Sale states at paragraph 3:
Mr. Rotella has informed this Court that the Debtor will pay the difference between Fifty Six Thousand Dollars and No/100 ($56,000.00) and the said amount of Fifty Thousand Dollars and No/100 ($50,000.00) and has additionally applied Rotella, P.A.’s entitled credit allowance of Seven Hundred Fifty Seven Thousand Forty Four Dollars and 71/100 ($757,044.71)18 consistent with the Court’s previous Orders to said amount elevating the Debtor’s offer to purchase the Cat Cay Property, to the amount of Eight Hundred Thirteen Thousand Forty Four Dollars and 71/100 ($813,044.71) which is accepted as the highest and best offer by this Court.
At the August 25, 2005 hearing, the Court approved the settlement between the Trustee and the Debtor and then conducted a sale of the Estate’s interest in the Cat Cay Property. Counsel for Trustee announced that there were two parties bidding, Rotella and counsel for Susan Lundborg (“Lubell”). After Lu-bell offered $150,000, the Court noted that:
THE COURT: .... any proposed counter offer by Mr. Lubell, or Ms. Lundborg I should say, is really moot, unless she is offering more than Mr. Rotella’s administrative claim. Therefore, I will approve the sale.
MR. ROTELLA: Next, Judge, so that the record is complete, the offer, with the subordination totals $813,044.71.
Order Denying Second Rule 60(b) Motion at 3~Jp (quoting August 25, 2005 Transcript at p. 42-43 [C.P.1184]).
The Order Denying Second Rule 60(b)Motion determined that the Order Approving Settlement and Sale accurately reflected the proceedings and the Court’s ruling, despite Debtor and Rotella’s arguments in their Second Rule 60(b) Motion: 1) that Rotella’s credit bid of $757,044.71, the entire amount of both the Rotella Administrative Claim and the Ferrell Administrative Claim, was gratuitous; and 2) that the Order Approving Settlement and Sale was drafted in error by Rotella. The Court denied Rotella’s request to reduce his and Debtor’s offer to $56,000 from $813,044.71 by modifying the Order Approving Settlement and Sale one year after entry of said order.
Thus even if all of the allegations in the Amended Complaint are true, Rotella and Rotella As Assignee are not unpaid administrative claimants. The Rotella Administrative Claim and the Ferrell Administrative Claim were credit bid in full, the offer was accepted as the best and highest offer for the Estate’s interest in the Cat Cay Property, and the administrative claims have thus been satisfied. Rotella and Rotella As Assignee’s suit as unpaid administrative claimant for damages against Lundborg as alleged in the Amended Com*898plaint is barred by claim preclusion and the law of the case.
The Court notes that this is not the only occasion that Rotella has attempted to modify the value and/or satisfaction of his administrative claims to support whatever his position was in the dispute de jour. The Memorandum Order noted than in an effort to create standing for Debtor to object to, or move to strike, Lundborg’s Proof of Claim, Rotella argued that the administrative claims were worth only some de minimus fraction of $757,044.71. The Memorandum Order judicially es-topped Rotella from taking an inconsistent position on the value of his administrative claims. Memorandum Order at 30. The Memorandum Order stated:
Debtor’s Closing Argument quotes the transcript from the August 25, 2005 hearing on Trustee’s Motion to Approve Sale wherein the Court ruled that Lundborg’s cash offer of $150,000 was “moot unless she is offering more than Mr. Rotella’s administrative claim.” August 25, 2005 Hearing Transcript at 42 [C.P. 1184]. Rotella simply cannot have it both ways, the equitable doctrine of judicial estoppel will not allow it. His credit bid cannot be maximized to freeze out other bidders at the sale and then minimized for the purpose of showing that there would have been a surplus in the estate to confer standing upon Debtor to seek sanctions against Lundborg for having filed an allegedly fraudulent proof of claim.
It would also be inequitable for the Court to be persuaded to award Rotella an administrative claim, and then allow Rotella to waive the administrative claim in order to create standing to pursue collection of that claim through Rotella’s Pending Sanctions Motions.
Id. at 31-32.
The Court did not entertain Lubell’s cash offer of $150,000 to purchase the Estate’s interest in the Cat Cay Property based upon Rotella bidding $56,000 in cash and credit bidding the full amount of his administrative claims of $757,044.71 for a total offer of $813,044.71. Thus while Rotella fully credit bid his administrative claims to successfully freeze out Lubell’s bidding for the Estate’s interest in the Cat Cay Property, Rotella later argued that the claims were worth a small fraction of their face amount in an effort to show that there would be a surplus in the Estate that would confer standing on Debtor to object to, or move to strike, Lundborg’s Proof of Claim. Rotella having credit bid the full amount of his administrative claims now maintains that he is an unpaid administrative claimant. Not only is Rotella judicially estopped from taking an inconsistent position by representing himself as the holder of unsatisfied administrative claims, his claims for damage against Lundborg are barred by the principles of claim preclusion and law of the case.
Even if Rotella and Rotella As Assignee’s claims were not satisfied, the Court would not exercise its discretion pursuant to 11 U.S.C. § 105(a) or the Court’s inherent power to award damages for the same equitable reasons stated in the Memorandum Order. See Memorandum Order: “The Equities of this Contested Proceeding” at 29-33.
The Order Striking First Rule 60(b) Motion noted that “this case has not only been over-litigated, it has been marked by continued attempts by the non-prevailing party to relitigate issues previously determined by final orders of this Court.” Order Striking First Rule 60(b) Motion at 2. The Amended Complaint is but one more *899attempt to relitigate issues previously determined by this Court and one more enormously wasteful exercise of the Court’s resources and everyone else’s time, effort, and money.
The material facts of this matter are not in dispute and entry of summary judgment in favor of Lundborg is appropriate as a matter of law. The record establishes that Rotella and Rotella As Assignee’s administrative claims were fully credit bid and have thus been satisfied. The Amended Complaint is barred by res judicata.
CONCLUSION
The material facts are not is dispute. As discussed above, the principles of claim preclusion and/or law of the case bar Plaintiffs’ prosecution of the Amended Complaint. Defendant is entitled to summary judgment as a matter of law.
ORDER
The Court having reviewed the submissions of the parties, the applicable law, having taken judicial notice of the record and the proceedings in this case hereby:
ORDERS AND ADJUDGES that Defendant’s Motion for Summary Judgment is Granted and the Amended Complaint is Dismissed.
. Documents filed in the instant adversary proceeding are herein designated "Adv. C.P.# ". Documents filed in the main case are designated “C.P.# ”.
. To avoid confusion, this order’s references to the Plaintiffs in their capacities as "assignees” are distinguished from references to them in their individual capacities. This order refers to "Rotella” to denote his capacity as counsel for Debtor, to "Rotella as Assignee” to denote his capacity as assignee of the Law Firm of Ferrell Law, P.A.'s Summary of Final Application for Compensation of Fees & Costs of Former Chapter 7 Trustee’s Counsel, and to "Debtor As Assignee” to distinguish his capacity as assignee of the Debtor’s Estate’s interest in the Cat Cay Property from his individual capacity as Debtor.
. The Court notes that the first paragraph of the Amended Complaint adds Rotella as a plaintiff, but the caption of the Amended Complaint does not list Rotella as a plaintiff.
. The Court's orders removing the Chapter 7 Trustee were affirmed on appeal to the District Court. The District Court's order is currently on appeal to the Eleventh Circuit.
. On October 6, 2003, Former Trustee Walden filed a complaint objecting to Debtor's discharge pursuant to 11 U.S.C. § 727. This lawsuit was assigned adversary proceeding number 03-3302-BKC-PGH-A. This lawsuit was dismissed two years later on September 1, 2005 pursuant to the Settlement Agreement. The Debtor received his discharge on September 21, 2005.
. Rotella and Debtor sought reconsideration of the Court’s Order Denying Second Rule 60(b) Motion. While the Court granted reconsideration in part by vacating an incorrect statement of dicta contained in the order, the Court reaffirmed the holding of the Order Denying Second Rule 60(b) Motion. See C.P. 1740 and 1753.
. The Court denied Rotella As Assignee and Debtor As Assignee’s Motions for Reconsideration of the Order Striking First Rule 60(b) Motion. See C.P. 1741, 1745, 1746 and 1750.
. Debtor and Rotella’s efforts include: 1) May 27, 2005 Debtor’s Motion to Strike Claim; 2) June 16, 2006 Rotella As Assignee and Debtor As Assignee’s First Rule 60(b) Motion which sought to set aside the Court's order approving the Estate’s release of claims against Lundborg; 3) September 18, 2006 Rotella as Assignee, and Debtor as Assignee's Motion to Reconsider, Alter, Amend and/or Vacate September 8, 2006 Order, Pursuant to Rule 59, Fed. R. Civ.P. and/or Relief From Said Order Pursuant to Rule 60(b)1 and 60(b)(6), Fed. R. Civ.P. [C.P. 1741] which expounded upon the allegations contained in the First Rule 60(b) Motion; 4) July 13, 2005 Debtor’s First Stay Sanctions Motion; 5) June 19, 2006 Debtor's Second Stay Sanctions Motion; and 6)the Amended Complaint.
. Although it is the Court’s practice to allow respondents approximately 20 days to respond to a motion for summary judgment, the Plaintiffs in this matter have had ten weeks in which to prepare and file a Response to the Motion for Summary Judgment. The first deadline set for Plaintiffs’ Response was September 14, 2006. See August 24, 2006 Order Continuing Pretrial and Setting Briefing Schedule [Adv. C.P.30], On September 14, 2006, Plaintiffs' filed their Default Motion requesting, among other things, an extension of time for filing the Response. The Court granted Plaintiffs’ request and set October 6, 2006 as the second extended deadline for Plaintiffs’ Response. See September 26, 2006 Order Granting in Part and Denying in Part [Plaintiff's Default Motion] [Adv.C.P.42]. The Court conducted a hearing on the balance of the relief sought in the Default Motion on October 18, 2006. On October 23, 2006, the Court set a third deadline when it granted an additional extension of time until November 2, 2006 for Plaintiffs to file their Response. See Order [Adv.C.P.59],
. Indeed, "rule 56(f) shows that a court may grant summary judgment without the parties having conducted discovery if the opponent has not sought discovery by making a motion under rule 56(f), or if the court has, in the valid exercise of its discretion, denied such a motion.” Reflectone, Inc., v. Farrand Optical Co., Inc. 862 F.2d 841, 844 (11th Cir.1989). See also Salas v. Tillman, 162 Fed.Appx. 918, 922 (11th Cir.2006) ("It is not, however, per se improper to grant summary judgment without providing the opponent an opportunity to conduct discovery”).
. The Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).
. The Preclusive Orders include: 1) Rotella Fee Order; 2) Ferrell Fee Order; 3)Order of *891Substitution of Claim; 4) Order Approving Lundborg Settlement; 5)Order Approving Settlement and Sale; 6) Memorandum Order; 7) Order Denying Second Rule 60(b) Motion; 8)Order Stiiking First Rule 60(b) Motion; and 9) Order Denying Debtor’s Second Stay Sanctions Motion.
. The Court notes that four days before filing the Complaint, the Debtor As Assignee filed the First Rule 60(b) Motion which sought to set aside the Order Approving Lundborg Settlement in a transparent attempt to escape the res judicata effect of the Order Approving Lundborg Settlement.
. See Notices of Appeal [C.P.1761,1765, 1769],
. The paragraph two exception for an award of punitive damages does not apply in the instant matter. The exception for punitive damages states:
(2) If such violation is based on an action taken by an entity in the good faith belief that subsection (h) applies to the debtor, the recovery under paragraph (1) of this subsection against such entity shall be limited to actual damages.
. The Response incorrectly argues that the Court lacked jurisdiction when it entered the Memorandum Order denying the damage portion of Debtor’s First Stay Sanctions Motion. On September 6, 2005, Lundborg filed her Notice of Appeal No. 1164, thereby initiating an appeal of the Order Determining Stay Violation. The Order Determining Stay Violation determined only that Lundborg violated the stay, it made no determination as to damages. This appeal was transmitted to U.S. District Court on March 10, 2006 where it was assigned Case No. 06-80231-CIV-Gold/Turnoff. On March 22, 2006, Judge Gold entered an Order Closing Case. Judge Gold's order closed the case without prejudice because the appeal was premature. Thus Plaintiffs’ Response wherein Plaintiffs argue that the Court lacked jurisdiction is without merit. Contrary to Plaintiffs’ argument, this Court had jurisdiction when it conducted the April 17, 2006 and May 26, 2006 hearings on the damage portion of Debtor’s First Stay Sanctions Motion. The Court also had jurisdiction when it entered the Memorandum Order on June 20, 2006. Had Plaintiffs believed the Court lacked jurisdiction, it is puzzling that they failed to timely raise the issue.
. Indeed despite having been given multiple extensions of time to file a response in this matter and despite the Court's statement that it would view the fraud allegations as true and take all reasonable inferences thereof in favor of the Plaintiffs, Plaintiffs decided to file a "partial" Response that is unresponsive to the Motion for Summary Judgment’s legal arguments. Whether or not Plaintiff's decision is again part of some larger litigation strategy, the Court is satisfied that Plaintiffs have had a full and fair opportunity to oppose the Motion for Summary Judgment.
. This amount represents the total of the Rotella Administrative Claim of $220,492.35 and the Ferrell Administrative Claim of $536,552.36. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487455/ | Per Curiam.
Confessions to be read in evidence should be proved by the justice, etc.
Rodney. A case where the examination in one county where felon is taken may be transmitted to the next county on the trial.
Per Curiam.
We conceive the examination offered should not be given in evidence unless the justice from Kent before whom it was taken or some other evidence to satisfy the Court was produced to prove the circumstances, whether by menacing, hope, etc.
Allen McLane, Esquire, sworn. Saw the prisoner subscribe the examination.
Francis Dunlap. Know nothing of this prisoner.
Leach 4 or 285. If written examination has been taken by the justice, no paroi evidence shall be given.
Hoffuter. Was present when prisoner was arrested, found on him a timepiece, wearing apparel, watch-chains, etc., $4.50 in silver, four keys.
*183After going through the evidence, the counsel agreed to submit this cause to the jury.
Verdict, guilty.
On the other indictment for breaking and stealing watches from the store of Thomas Crow and Jonas Alricks, William Collins withdrew his plea of not guilty, pleaded guilty, and submitted to the Court.
Judgmént, to be whipped on Saturday, the 28th of May, with eighteen lashes on the first indictment, and 21 lashes on the last, and restitution. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487456/ | Per Curiam.
The papers offered appear to be a part only of a whole and also not properly obtained from defendant.
Philip Marvel. I applied to Adams to purchase Hannah the first of October and bargained with him if his wife was willing for $160, and paid him $100. She was sent to me Monday evening one or two hours in the night. I saw him the day after the election and paid him the balance. Negro David was at my house with Hannah.
Cross-examined. I have her yet, never heard anybody else claimed her, till since we went to the magistrate.
Adam Marvel.
Levin Stewart. Adams, in reply to what I said, said if she was stolen, Porter stole her himself, and he would make him pay for her or it, and he said afterwards she was his own.
Elisha Hitchins. Adams said the girl was only hired to Porter but was his property and that he had sold her. He got her by his wife, etc.
Jesse Green. Adams said that the girl was stole or sold by Porter.
William Jones. Adams said did not know but Porter had sold her.
Mr. Bayard. The prosecutor has produced no evidence of the felonious intent and as to the property we can clearly show you it was in us.
Inventory of Jesse Windsor £296. Negro woman and child, Hannah appeared. Administration account of William A. and Peggy. Letter of A. Porter.
Notice dated August 1, 1803, to James A. Porter to move off.
John Adams.
Sally Adams. William Adams agreed to hire Hannah to Porter for 7/6 per month, threatened to take Adams’ life with a pistol, etc.
Attorney General. A person may steal his own goods. 4 Bl. Comm. 230. Hawk.P.C. 135, ss. 5 to 15. 2 Del.Laws 667, 668. Act against slave stealing.
N. WeTls for defendant. 4 Bl.Comm. 356.
Robinson. Post. 183. If a man takes his own goods with intent to charge.
*192Horsey, Wilson. William Adams never acknowledged the Negro was Porter’s.
Bayard. Two questions in this case. First, the property must be proved as stated in the indictment; which is that property was in Porter, on which point Attorney General has fixed in his proof, but we have proved the property absolutely in William Adams. Second point, whether he took her with intent to steal. There is no evidence of concealment whatever, neither can you discover the least motive.
Attorney General. It is not necessary in this case to state the special property in the indictment, but we may recover if we prove it, though it is stated generally.
Per Curiam.
It is necessary, to convict the defendant, to prove property in Porter as stated in the indictment. The principle of law, “that a man may steal his own goods,” does not apply in this case. The indictment should be proved as stated. The felonious intent should also be proved to your satisfaction.
Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487458/ | Per Curiam.
The Constitution [Art. 4] requires the payment of taxes within two years, and the Court have not power in this case to mold or bend the Constitution so as to relieve the defendant on this point. If, however, an elector should be left off by neglect, perhaps he might have his remedy against such officer.
Verdict, not guilty, after jury were up several hours. And Court granted a certificate of probable cause. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487459/ | Per Curiam.
In this action for perjury laid in the indictment to be committed before William B. Cooper, a justice, in an action before referees, it must be proved that the answers were given falsely, wilfully etc. Three grounds of defense set up. First, that the oath administered before referees by a justice is not such an oath as will convict the defendant of perjury. Second, watermark alone not sufficient to convict. Third, that the action was true. But if you are of opinion the oath was administered by a person having lawful authority, and that he swore falsely etc., you ought to convict. If you are not fully satisfied of the above you will acquit. As to the first point of defense, the Court, or a majority, are of opinion that the oath was not in law such an oath as should convict a party of perjury.
Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487460/ | Per Curiam.
First, that when a person arrests another without a pass it is at their own peril; second, if no felony committed before the arrest no justification that the person is an officer, etc.
Verdict, guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487461/ | Per Curiam.
If one person commits an assault and battery, and another stands by and expressly encourages him, the last is guilty of the assault and battery.
Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487462/ | *229Court overruled the objection and directed the defendant, Kirshaw, to give security in four hundred dollars to keep the peace towards Negro Ceasar, after said Negro was examined. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487464/ | Abram Freeman for James Morris. Merritt was sold in March, 1790, for seven years, or till twenty-one, which makes the term of his servitude end in March, 1797.
Miller proposed to give in evidence to the jury that defendant did not know the Negro was free. The Court would not permit such evidence to be given except in mitigation of the fine.
Fined four dollars. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487465/ | Assault and battery.
Mrs. Powers. On September 28, I went out. On my return I found Charles McCloskey and others, the workmen, in a riotous manner in the house. I was exasperated with him and raised my hand to strike him. He then struck me and knocked me down. I hired him at $120 per year. I never discharged Mc-Closkey.
*238Susan Stidham. I saw Mrs. Powers come into mother’s room for safety. Her mouth was bloody, and handkerchief. Mc-Closkey was in the entry swearing, stamping, and threatening her, and all the afternoon he and the men were at play, etc.
William Stidham. I was going towards home, heard great noise, etc., was told McCloskey and men were drunk, etc. Mrs. Powers was at her house and her mouth bloody, etc. McCloskey and several men were there; he abused me.
Brian McCormick. Mrs. Powers came home in the evening. Her daughter said McCloskey had abused her, she struck at him, he pushed her or knocked her down.
Catharine Daugherty. McClosky was struck by mistress, he knocked her down and knocked her tooth out.
Ann Thompson.
Verdict, guilty. Fined $20, and bound to keep the peace. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494106/ | MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
STEPHEN D. GERLING, Chief Judge.
Under consideration by the Court is a motion filed by Kenneth L. Bryan and Ethel L. Bryan- (“Debtors”) on March 24, 2006, requesting default judgment or summary judgment on counterclaims asserted by the Debtors against American General Financial Services, Inc. (“American Gener*14al”) on February 8, 2006, with respect to an adversary proceeding commenced by American General on January 10, 2006, against the Debtors, as well as against the U.S.D.A. Rural Housing Service (“USDA”) and Mark W. Swimelar, Esq. (“Trustee”). On April 7, 2006, a reply to the Debtors’ motion was filed on behalf of the USDA, indicating that it joined in the Debtors’ motion. Also on April 7, 2006, American General filed its response in opposition to the Debtors’ motion. On April 10, 2006, American General also filed opposition to the joinder of the USDA.
On April 11, 2006, the Court heard oral argument by the parties at its regular motion term in Binghamton, New York. At the hearing, the Court denied the Debtors’ motion for default judgment with respect to what the Debtors had labeled as “counterclaims” and which American General labeled as affirmative defenses to which no reply was necessary.1 The Court adjourned the Debtors’ motion for summary judgment to May 9, 2006, in order to allow the parties an opportunity to file memoranda of law on the issue of whether the confirmation of the Debtors’ chapter 13 plan (“Plan”) by Order of this Court on August 3, 2005, was res judicata with respect to the issues raised in the Debtors’ counterclaims. Following further oral argument on May 9, 2006, the Court again adjourned the motion to June 13, 2006, in order to consider the relevancy of its prior decision in In re Coss, Case No. 02-65893 (Bankr.N.D.N.Y. July 14, 2005) to the matter presently before it. The parties were afforded an opportunity for further oral argument on June 13, 2006, at which time the Court agreed to take the matter under submission.
JURISDICTIONAL STATEMENT
The Court has core jurisdiction over the parties and subject matter of this adversary proceeding pursuant to 28 U.S.C. §§ 1334, 157(a), (b)(1) and (b)(2)(A), (K) and (O).
FACTS
The Debtors filed a voluntary petition (“Petition”), along with their Plan, pursuant to chapter 13 of the Code on March 24, 2005. According to Schedule A — Real Property, filed with the Petition, the Debtors own real property at 512 Hawleyton Road, Binghamton, New York (the “Premises”), which they valued at $45,000. According to Schedule D — Creditors Holding Secured Claims, the USDA was listed as holding a secured claim of $67,198.13 based on three mortgages on the Premises executed by the Debtors. American General was listed as a secured creditor. However, the Debtors listed American General’s claim of $28,532 as totally unsecured based on the value of the Premises. Robert B. Githin [sic], Esq. was listed on Schedule D as representing American General.
On May 12, 2005, the USDA filed a proof of claim in the amount $67,096.89, which it identified as secured based on debt that it identified as having been incurred on May 28, 2004. Attached to the proof of claim was a reamortization agreement, referring to a promissory note dated January 19,1988, with an outstanding balance of $31,444.852; a reamortization *15agreement, dated May 28, 2004, referring to a promissory note dated June 30, 1978, with an outstanding balance of $498.66; a reamortization agreement dated May 28, 2004, referring to a promissory note dated November 15, 1979, with an outstanding balance of $620.11, and a reamortization agreement dated May 28, 2004, referring to a promissory note dated November 21, 1986, with an outstanding balance of $3,476.48. Also attached to the proof of claim were copies of the respective mortgages executed by the Debtors, as well as a “Subsidy Repayment Agreement” referencing § 521 of Title V of the Housing Act of 1949.
According to the terms of the Subsidy Repayment Agreement (¶¶ 3 and 4), the Debtors agreed that
the subsidy is due and payable upon the transfer of title or non-occupancy of the property by me (us). I(we) understand that the real estate [identified as Box 232, Upper Penn. Ave., Rd #2, Binghamton, New York 13903] is the only security for the subsidy received. I(we) further understand that I(we) will not be required to repay any of the subsidy from other than the value (as determined by the Government) of the real estate ...
I(we) understand that so long as I(we) continue to own the property and occupy the dwelling as my (our) residence, I(we) may repay the principal and interest owed on the loan and defer repaying the subsidy amount until title to the property is conveyed or the dwelling is no longer occupied by me (us). If such a request is made, the amount of subsidy to be repaid will be determined when the principal and interest balance is paid.
The Debtors’ Plan provides for monthly payments of $195 over 36 months at a dividend of not less than 5%. With respect to American General, the Plan provides under the heading of “Lien Avoidance,” “The following liens shall be avoided pursuant to 11 U.S.C. 522(f), or other applicable sections of the Bankruptcy Code: Creditor: American General Home Equity, Amount claimed: $28,532.” It goes on to state that
The mortgage loan claim of American General Home Equity (2nd mortgage) against the debtors’ real estate is wholly unsecured and is to be avoided, to be treated for purposes of payment of the claim solely as an unsecured claim. Within ten days of service upon American General Home Equity of a copy of the Order of Confirmation of this plan, American General Home Equity shall prepare and submit to the Chapter 13 Trustee a duly executed Discharge of Mortgage, which Discharge shall be held in escrow by the Trustee to be released to American General Home Equity upon written request of American General Home Equity upon dismissal of this Chapter 13 case or conversion to Chapter 7, or to be released to the debtors for recording upon written request of the debtors after completion of this Chapter 13 Plan.
¶ 9 of the Plan.
Under the heading of “Direct Payments — -The debtor shall make regular payments directly to the following creditors: Creditor: USDA Rural Housing Service — residential mortgae [sic] payment.” ¶ 12 of the Plan. There is no men*16tion in the Plan of the amount of the USDA’s claim or the amount of the monthly payments.
The hearing on confirmation of the Debtors’ Plan was initially scheduled to be held on June 7, 2005. By letter dated June 2, 2005 (Case Docket No. 8), Robert B. Gitlin, Esq. (“Gitlin”), on behalf of American General, requested that the confirmation hearing be adjourned to July 12, 2005 “to allow American General Home Equity, Inc. further time to object to the confirmation. It is American General’s position that its second mortgage is secured. American General is in the process of gathering its appraisal of the property, with the cooperation of the debtors.” Apparently in response to Gitlin’s letter, Debtors’ counsel sent him a letter, dated June 6, 2005, stating that he was “taking the liberty of enclosing for your reference a copy of the Proof of Claim filed by the USDA Rural Housing Service, showing the debt due on the mortgages senior to your clients.” See Exhibit attached to Debtor-Defendants’ Memorandum, filed May 4, 2006 (Adv.Pro. Docket No. 17). By letter dated July 1, 2005, addressed to Debtors’ counsel, Gitlin indicated that “[biased upon the claim of the government, it appears that there is no equity to support American General’s security in the home. Accordingly, no objection will be filed.”
The Court signed the Order of Confirmation on August 3, 2005. American General was identified as “Secured Modified” with respect to its 4th mortgage. Its claim of $28,532 was identified as having a value of “0.” See ¶ 1(h) of the Order of Confirmation. The Order also provides for direct payments to the USDA Rural Housing on its 1st, 2nd, 3rd mortgages in the amount of $67,097. Id. at ¶ 1(1). Paragraph 4, of what has been described by American General’s present counsel, E. Lisa Tang, Esq. (“Tang”), as a “form” order, provides that “Secured claims that are modified shall be paid in full the net amount due as of the date of filing or the value of the collateral to which creditor’s lien attaches, with any balance to be treated as unsecured non-priority claim, whichever is less. Secured creditors shall retain their liens unless ordered otherwise.” There is no specific provision in the Order requiring American General to execute a Discharge of Mortgage to be held by the Trustee in escrow. However, the Order does provide that “the Debtors’ Plan, and as further modified by this Order, is confirmed with payment to be made to Mark W. Swimelar, Trustee.” See Order of Confirmation at ¶ 1.
A proof of claim was filed on behalf of American General on October 6, 2005,3 in the amount of $27,160.89, based on its mortgage dated May 10, 2001. The proof of claim indicates that it is a secured claim based on a valuation of the Premises of $65,000, despite the prior confirmation of the Debtors’ Plan on August 3, 2005, which determined that the value of the Premises was $45,000.
As noted previously, on January 10, 2006, approximately five months after the Order of Confirmation was signed by the Court, a complaint (“Complaint”) was filed *17on behalf of American General by David L. Ganje, Esq. (“Ganje”) requesting that the mortgage lien of American General “be declared a valid outstanding mortgage lien” subject “to the mortgage liens of USDA Rural Housing only in the amount due on said liens as of the date of recording of the Plaintiffs mortgage.”4 See “Therefore” clause, incorporating by reference ¶ 8 of the Complaint.
On February 8, 2006, the Debtors filed their answer to American General’s complaint and asserted two counterclaims. The first counterclaim seeks an Order requiring American General to deliver a Discharge of Mortgage to the Trustee to be held in escrow pending completion of their Plan. Their second counterclaim requests, in the alternative, a determination and judgment by the Court that American General’s lien on the Premises is void. It also requests that they be allowed to file a copy of the judgment in the Broome County Clerk’s office.
The USDA filed its answer to American General’s complaint on February 13, 2006. It contained no counterclaims (Adv. Pro. Docket No. 5). It did assert res judicata as an affirmative defense to the relief being sought by American General.
ARGUMENTS
It is American General’s position that a determination of the validity and priority of a hen can only be made in the context of an adversary proceeding and not by means of provisions in a chapter 13 plan. Thus, American General contends that res judicata only applies to the amount American General is to receive on its claim as a “modified secured creditor” under the terms of the Plan, based on a valuation of the Premises of $45,000, which American General no longer disputes. According to American General, res judicata does not prohibit the determination of the validity and priority of the USDA’s lien, particularly as it relates to the validity and priority of American General’s lien. According to Tang, what American General is seeking is “declaratory relief with respect to the construction, interpretation and implementation of Debtors’ confirmed plan with respect to the validity and priority of liens in accordance with the terms of the Confirmation Order.... ” See Opposition to Motion for Default Judgment or Summary Judgment at ¶ 19 (Adv. Pro. Docket No. 12). American General takes the position that “allowance of USDA’s secured claim could not have been actually or by necessity finally determined by the confirmation of the Debtors’ plan.” See ¶ 4 of American General’s Supplemental Affirmation in Opposition to Motion for Summary Judgment Dismissing Complaint (Adv. Pro. Docket No. 19). It is the position of American General that the amount of the USDA’s allowed claim “must be determined [pursuant to Code § 506] and such amount is clearly not the amount set forth in Defendant USDA’s Proof of Claim.” See Opposition to Motion for Default Judgment or Summary Judgment at ¶ 21. American General acknowledges that ultimately its lien may not attach to any property, but under the terms of the USDA’s mortgages and the Subsidy Repayment Agreement, it seeks to preserve any rights it may or may not have in the event that the Debtors *18ultimately sell the Premises and surplus remains after payment of the claim of the USDA.
Although not expressly set forth in its complaint, American General also argues that by virtue of the reamortization agreements executed on May 28, 2004, there was an accord and satisfaction with respect to the prior debt of the USDA, thereby altering its priority and placing the lien of American General ahead of that of the USDA.5 See Supplemental Affirmation in Opposition to Motion for Summary Judgment Dismissing Complaint at Footnote 1.
The Debtors, as well as the USDA, take the position that if American General had an issue with the validity and priority of the lien of the USDA, it had ample opportunity to object to the proof of claim filed by the USDA on May 12, 2005. It directs the Court to the letter of Gitlin on behalf of American General, dated June 2, 2005, in which he requested additional time to determine whether American General’s claim was secured, and his letter of July 1, 2005, in which he stated that “it appears that there is no equity to support American General’s security....”
DISCUSSION
In considering a motion for summary judgment, the Court must “view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995) (citation and quotation marks omitted). The issue before the Court concerns the applicability of res judicata to the relief sought by the Debtors in their counterclaims.
Code § 1327(a) provides that “[t]he provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.” 11 U.S.C. § 1327(a). As one court commented:
[t]he true extent of the res judicata effect of a Chapter 13 confirmation order entered pursuant to § 1327(a) is, however, a complex and thorny conundrum which has vexed courts and parties, and on which there is a broad spectrum of diverse opinion.
In re Strong, 203 B.R. 105, 113 (Bankr.N.D.Ill.1996) (citation omitted). The majority of courts hold that a creditor who fails to object to a plan or to appeal a confirmation order is without a basis for challenging a provision of the confirmed plan, even if it is inconsistent with the Code. See, e.g. Universal Am. Mortgage Co. v. Bateman (In re Bateman), 331 F.3d 821, 822 (11th Cir.2003) (indicating that a secured creditor, who has failed to object to the plan or to appeal from it, cannot collaterally attack a confirmed plan even though it may not comply with the mandatory provisions of the Code); In re Simpson, 240 B.R. 559, 562 (8th Cir. BAP 1999) (noting that the “[t]he sum of the judicial decisions that have considered the statutorily binding effect of a confirmed *19plan of reorganization is that if the confirmed plan treats the creditor, and if the creditor received proper notice of the plan and its proposed confirmation, the creditor’s only potential remedy for a plan it doesn’t like is to appeal the order of confirmation”).
As this Court noted in Coss,
“[although confirmed plans are res judicata to issues therein, the confirmed plan has no preclusive effect on issues that must be brought by an adversary proceeding, or were not sufficiently evidenced in a plan to provide adequate notice to the creditor.” In re Enewally, 368 F.3d 1165, 1173 (9th Cir.2004); see also Cen-Pen Corp. v. Hanson, 58 F.3d 89, 93 (4th Cir.1995) (confirmation of chapter 13 plan is res judicata only as to issues that can be raised in less formal procedure for contested matters, not matters that must be resolved in adversary proceeding); In re Beard, 112 B.R. 951, 955-56 (Bankr.N.D.Ind.1990) (if an issue must be raised through adversary proceeding it is not part of confirmation process; absent actual litigation confirmation will not have preclusive effect).
Coss, slip op. at 11, quoting In re Whelton, 312 B.R. 508, 516 (D.Vt.2004), aff'd, 432 F.3d 150 (2d Cir.2005).
For res judicata to apply in bankruptcy proceedings involving a chapter 13 plan, the Court must consider whether
1) the prior decision was a final judgment on the merits, 2) the litigants were the same parties, 3) the prior court was of competent jurisdiction, and 4) the causes of action were the same. In the bankruptcy context, we ask as well whether an independent judgment in a separate proceeding would impair, destroy, challenge, or invalidate the enforceability or effectiveness of the reorganization plan.
In re Layo, 460 F.3d 289, 292 (2d Cir.2006), quoting Corbett v. MacDonald Moving Servs., Inc., 124 F.3d 82, 87-88 (2d Cir.1997).
An order confirming a chapter 13 plan is a final judgment on the merits. See Layo, 460 F.3d at 293-94. In addition, no one disputes that this Court had jurisdiction to confirm the Debtors’ Plan and that the “litigants” involved in the confirmation of the Debtors’ Plan are the same as those appearing in this matter. The critical issue is whether the present counterclaims asserted by the Debtors involve the same “claim” or “nucleus of operative fact” as was before the Court during the confirmation process. As the court in Layo noted, the “ ‘critical question for res judicata purposes is whether the party could or should have asserted the claim in the earlier proceeding.’ ” Id. at 292, quoting In re Howe, 913 F.2d 1138, 1146 n. 28 (5th Cir.1990).
The majority of courts have allowed the avoidance of wholly unsecured liens through either the chapter 13 plan confirmation process or by motion. In re Yekel, Case No. 305-47107, 2006 WL 2662849, at *3 (Bankr.D.Or. Sept. 14, 2006) (identifying cases that have allowed the avoidance by either plan confirmation or by motion); see also In re Bennett, 312 B.R. 843, 846 (Bankr.W.D.Ky.2004) (stating that “there does seem to be some consensus that an adversary proceeding is not required [to strip off wholly unsecured liens]”). In those cases, the courts permitted the elimination of the liens based on the value of the collateral but not on the basis of a challenge to their validity, priority or extent. As pointed out by the court in Bennett, had a debtor contested the validity, extent or priority of the lien, he/ she would have had to commence an adversary proceeding (Id. at 847); otherwise, it is appropriate to seek the relief by mo*20tion or as part of the confirmation process. In this regard, the court in Yekel found particular favor with In re King, 290 B.R. 641 (Bankr.C.D.Ill.2003). In King the court indicated that
in order to determine whether a second mortgage is wholly unsecured, it is necessary to ascertain not only the value of the secured property, but the amount due on the first mortgage as well. The determination of the amount of a claim is also properly a contested matter, unless an objection to the claim includes a demand for relief otherwise covered by Bankruptcy Rule 7001, in which case only then does it become an adversary proceeding. Since both elements of the Section 506(a) bifurcation process, valuation and claim amount, are contested matters, that process is properly a part of the Chapter 13 plan confirmation process, and the statutory direction of Section 506(a), that such determination shall be made in conjunction with the hearing on the plan, is entirely consistent with Bankruptcy Rules 3007 and 3012.
Id. at 648. (citations omitted) (emphasis supplied).
In its prior decision in Coss, the Court indicated “that its conclusion in no way addresses whether a debtor may ‘strip off a lien ... as part of the confirmation process.” Coss, slip op. at 14, n. 9 (citing King, 290 B.R. at 646-47). In Coss the debtor’s plan expressly provided that secured creditors were to retain their liens and that the issue of the extent of the lien of that particular creditor, i.e. whether the lien attached to just the trailer in which the debtor resided or to the land on which the trailer was situate, was not necessary in order for the Court to have confirmed the debtor’s plan.
The Court is now being asked to address that issue. In so doing, the Court begins its analysis by stressing the importance of ensuring that due process is not denied to a creditor such as American General. The fact that the confirmation process in chapter 13 cases occurs usually on an expedited basis is not a license for ignoring the due process rights of creditors. The Court certainly does not condone an approach that for all practical purposes is an attempt by a debtor to “pull the wool over the eyes” of the creditors. It is critical that a debtor provide notice to the affected creditor that comports with due process requirements in order for the creditor to make a conscious decision whether to participate in the process. Id. at 649. The “notice must be reasonably calculated to bring to the party’s attention the nature and substance of the pending determination, i.e. the extent of the adverse effect on the party’s rights (the qualitative aspect), and it must afford a reasonable time in which to respond (the quantitative aspect).” Id., citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); see also In re Linkous, 990 F.2d 160, 162 (4th Cir.1993) (indicating that due process requires that affected parties be apprized on the pendency of the action and that they be afforded an opportunity to present their objections). Courts to have addressed this issue have required not only that the creditor and its claim be identified, the plan must also provide some explanation for the lack of collateral value to support its lien. King, 290 B.R. at 649-50, citing In re Zimmerman, 276 B.R. 598, 603 (Bankr.C.D.Ill.2001) (noting that “[t]he burden is squarely on the shoulders of the debtor, as the drafter of the plan, to ensure that its language provides adequate notice of the debtors’ intentions and the basis for the proposed lien avoidance”). If the notice is found to be inadequate, the secured property will vest in the debtor on confirmation but will remain subject to the *21unavoided lien. Id.; see also In re Friedman, 184 B.R. 883, 888 (Bankr.N.D.N.Y.1994), aff'd 184 B.R. 890 (N.D.N.Y.1995) (indicating that “[t]he fact that the Plan has been confirmed will not bar the [creditor] from enforcing its lien even though it failed to object to the Plan’s provisions if there has not been proper notice”). At the same time, a confirmed chapter 13 plan is res judicata as to all parties that participated in the confirmation process provided there has been adequate notice given to those whose interests are being affected. See Matter of Howard, 972 F.2d 639, 641 (5th Cir.1992), citing Republic Supply Co. v. Shoaf 815 F.2d 1046 (5th Cir.1987).
In this case, under the heading of “Lien Avoidance,” the Debtors’ Plan expressly-identified American General as a creditor with a claim of $28,532. The Plan indicated that American General held a second mortgage against the Premises and that its claim was wholly unsecured. As a basis for this conclusion, the Court notes that the Plan clearly states in its “liquidation analysis” that the Premises had a market value of $45,000. The Plan does not state the amount due on the USDA mortgages. However, the Confirmation Order does.
The hearing on confirmation of the Debtors’ Plan, originally scheduled to be held on June 7, 2005, was adjourned a month in order to give American General, which obviously participated in the confirmation process, an opportunity to confirm the value of the Premises, as well as the amount due on the USDA mortgages. It is evident that Gitlin was familiar with USDA’s claim when he stated that “[b]ased upon the claim of the government, it appears that there is no equity to support American General’s security in the home” and indicated that American General would not be objecting to confirmation of the Debtors’ Plan and the treatment of its claim, including the proposed “strip off’ of its lien. Failure of a secured creditor to make a timely objection to confirmation results in the creditor being deemed to have accepted the plan. In re Szostek, 886 F.2d 1405, 1413 (3d Cir.1989).
The USDA had timely filed its proof of claim prior to confirmation of the Debtors’ Plan. As this Court previously noted in Friedman, “unless an objection is filed pursuant to Fed.R.Bankr.P. 3007, a plan may not affect the validity or amount of a secured claim in the situation where a proof of claim has been timely filed.” Friedman, 184 B.R. at 887 (citations omitted). Neither the Debtor nor American General objected to the claim of the USDA prior to confirmation. In this case, American General clearly had notice of the Debtors’ Plan, as well as the claim of the USDA, before it opted not to object to the confirmation of the Debtors’ Plan, which included the provision voiding its lien.
The Debtors’ Plan was confirmed on August 3, 2005, and it was not until January 9, 2006, some five months later, that Ganje, on behalf of American General, filed the complaint seeking a determination of the validity and priority of the lien of the USDA. Under the circumstances, the Court views this as simply an attempt to collaterally attack the confirmation of the Debtors’ Plan. A party with adequate notice of a bankruptcy proceeding ordinarily cannot attack a confirmed plan. In re Harvey, 213 F.3d 318, 321 (7th Cir. 2000). As the court in Harvey, explained,
[t]he reason for this is simple and mirrors the general justification for res judicata principles—after the affected parties have an opportunity to present their arguments and claims, it is cumbersome and inefficient to allow those same parties to revisit or recharacterize the identical problems in a subsequent proceeding. * * * This is especially *22true in the bankruptcy context, where a confirmed plan acts more or less like a court-approved contract or consent decree that binds both the debtor and all the creditors. Bringing the various creditors’ interests to the table once is difficult enough; permitting one of the creditors to launch a later attack on a confirmed plan would destroy the balance of interests created in the initial proceedings.
Id.
As discussed above, American General, at the time it was represented by Gitlin, had notice of the Debtors’ Plan and the fact that the Debtors’ Plan provided that its lien be avoided and that American General was to prepare and submit to the Trustee an executed Discharge of Mortgage to be held in escrow by the Trustee until completion of the Debtors’ Plan. It had an ample opportunity to review not only the Debtors’ Plan, but also the proof of claim of the USDA, which included copies of its mortgages, promissory notes, reamortization agreements and the Subsidy Repayment Agreement executed by the Debtors. Since Gitlin was provided with information concerning USDA’s interest in the Premises, he was under a duty to make diligent inquiry in order to clarify the nature of that interest. Layo, 460 F.3d at 293.
The originally scheduled confirmation hearing on the Debtors’ Plan was adjourned at Gitlin’s request in order to given him an opportunity to review these materials. If he had any concerns regarding the value of the Premises and the amount of the USDA’s claim, as well as the provision requiring that American General execute a Discharge of Mortgage to be held by the Trustee in escrow pending completion of the Debtors’ Plan, he had every opportunity to raise those concerns and to object to it. Instead, upon review of the documents, he indicated that he, on behalf of American General, had no objection to the Debtor’s Plan.
It was only after new counsel was retained by American General that it filed its objection to the claim of the USDA by commencing an adversary proceeding some five months after confirmation of the Debtors’ Plan. While American General is now attempting, through the efforts of its third attorney, to raise questions concerning the validity, and perhaps priority, of the claim of the USDA, as well as the validity of its own lien, the fact of the matter is that under the terms of the Debtors’ Plan, it no longer has a valid lien. The validity and amount of the USDA claim, to which there was no objections filed by either the Debtors or American General, was previously determined in connection with confirmation of the Debtors’ Plan. Arguably, if American General had not participated in the confirmation process, questions of notice and due process might weigh in its favor. However, where it received more than reasonable notice and participated in the confirmation process, res judicata applies, and the Court concludes that the Debtors’ motion seeking summary judgment on First Counterclaim should be granted.6 In addition, this conclusion renders the complaint filed by American General, seeking a determination of the validity of its lien, moot. Accordingly, it will be dismissed.
Based on the foregoing, it is hereby
*23ORDERED that the motion for summary judgment on the Debtors’ First Counterclaim, requiring that American General execute a Discharge of Mortgage to be held by the Trustee in escrow pending completion of the Debtors’ Chapter 13 case be granted; and it is further
ORDERED that the complaint of American General is dismissed on the basis of its being moot.
. In denying the Debtors' motion for default judgment, the Court noted the preference of the courts to resolve matters based on the merits of the case, rather than based on a default in answering a complaint or, in this case, counterclaims. See Pecarsky v. Galaxiworld. com Ltd., 249 F.3d 167, 174 (2d Cir.2001).
. The mortgage dated January 19, 1988, also refers in the "Being clause" lo a mortgage recorded in the Broome County Clerk's Office on November 17, 1982. However, no docu*15mentation regarding the mortgage is included in the proof of claim filed on behalf of the USDA.
. According to the case docket, the deadline for filing a proof of claim was August 16, 2005. (Case Docket No. 3). However, the cases are divided on whether a secured claim holder in a chapter 7 or chapter 13 case is required to file a proof of claim and whether the 90 day deadline from the first date set for the meeting of creditors in applicable. In re Jensen, 232 B.R. 118, 121 (Bankr.N.D.Ind.1999) (citations omitted). Arguably because Gitlin was aware that American General’s claim was to be treated as unsecured, he should have timely filed a proof of claim on its behalf in order for it to receive payments under the Plan.
. That the Complaint, as drafted by Ganje on behalf of American General, sought a declaration of the validity of its lien, as well as a determination concerning the priority and validity of the lien of the USDA, was clarified by Tang at the hearings on the motion. For example, at the hearing on April 11, 2006, she stated that in connection with the Order of Confirmation, the Court did not actually have to rule on the validity of the claim of the USDA for purposes of allowance and payment by the Trustee through the Plan since the Plan provided for payments to the USDA to be made directly by the Debtors.
. The Court would note that a similar argument was addressed by it some fourteen years ago in In re Earl, 147 B.R. 60 (Bankr.N.D.N.Y.1992). In that case, the Court considered “the priority of private liens and consensual federal liens arising under FmHA administered loan programs” under circumstances in which promissory notes and a mortgage issued in favor of the FmHA in 1977 and 1978 were later re-amortized in 1986. Ultimately, based on the facts before it, the Court concluded that "the priority of FmHA’s original mortgage liens remains unaffected by the subsequently executed 1986 promissory notes and mortgage.” Id. at 65.
. The Debtors’ Second Counterclaim is pled in the alternative. Because the Court is . granting their First Counterclaim, the Court believes it is unnecessary and inappropriate under the circumstances to grant the Second Counterclaim, which requests a judgment against American General. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487479/ | Submitted without argument or charge. Verdict, guilty.
. Judgment. Twenty-one lashes. Pay $100. . Pay costs [of] prosecution. Sold seven years to the highest and best bidder. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487480/ | Submitted without argument or charge. Verdict, guilty.
Judgment, $11.20 — fourfold. Twenty-one lashes. Pay cost [of] prosecution. Sold seven years to the highest and best bidder. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487481/ | Submitted without argument or charge. Verdict, guilty.
Judgment, $2 — twofold. Twenty-one lashes. Pay costs of prosecution. Sold seven years to any person or persons. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487482/ | Submitted without argument or charge. Verdict, guilty.
Judgment, restitution [$]7.40. Twenty-one lashes. Sold for seven years to highest and best bidder, and committed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487483/ | Submitted without argument or charge. Verdict, guilty.
Judgment, fourfold value — [$]3.96. Whipped twenty-one lashes. Sold in this state seven years. Pay costs, and committed, | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487485/ | Submitted without argument or charge. Verdict, guilty as they stand indicted. Polled and affirmed.
Fined $2 each, and committed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487486/ | Submitted without argument or charge. Verdict, guilty.
*265Judgment, pay twofold value, $166. Stand one hour in pillory. Thirty-nine lashes on the bare back, etc. Sold seven years as a servant. Pay costs of prosecution, and committed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487489/ | Submitted without argument or charge. Verdict, guilty.
Judgment, fourfold — [$]1.32. Twenty-one lashes. Wear T for six months. Pay costs, and committed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487493/ | Per Curiam,
unanimously. The record of Stockton v. Haughey’s Administrator is made part of the case in the statement pronarratio of the plaintiffs below. They say that Bines and his sureties were liable, in consequence of a sale made by Bines of the lands of Haughey on Stockton’s judgment. There as plaintiffs below have referred to, and stated this judgment, and the proceeding of Stockton, they have spread it on the record; they make it part of their case, and consequently it comes properly before this Court, just as if they had recited the whole of it. It cannot be stricken out of the record. The rule must be discharged.
August 8, 1815.
Rogers, for the defendants in error, read to the Court an affidavit made by William Poole, stating a compromise, by the parties before writ of error brought, by which it appears that the plaintiffs below (defendants here) received satisfaction of this judgment, though a less sum was paid than the plaintiffs below were entitled to by the judgment. He then moved that this writ of error should be dismissed, and argued that the verdict and judgment were obtained in 1807; the compromise was made June 2,1809; from this delay, it is presumed that an arrangement was made. Plaintiffs in error took a bill of exceptions. The compromise was made to prevent the prosecution of a writ of error. No bill of exceptions was sent to this Court. It had been placed in the hands of the Chief Justice of Common Pleas. He had been informed of the compromise. The bill of exceptions was mislaid. This compromise concludes the parties from prosecuting a writ of error. This equitable defence could not be placed on the records of this Court. A release might be proved in this *278Court. The compromise embraced in principle a release. This, by analogy, is the same as a release.
Cowp. 37, Jones v. Randal et al., action on wager whether a decree of Chancery would be reversed on appeal to House of Lords. Decree reversed. Action on wager; wager foundation of the suit; judgment. . So in this case if wager about suit be sound according to principle, so compromise is proper. Uncertain what the decision of court of error would be. Compromise predicated oh this uncertainty. The parties intended to terminate the suit. Peake Ev. 12, offer to pay a sum to buy peace, not allowed to be given in evidence. 1 H.Bl. 21, defendants having agreed not to bring writ of error, not allowed to bring such writ, though manifest error. This was an agreement on record, allowance of writ of error stayed in the court below. Stronger for this court to interfere and arrest the writ of error. Two years had elapsed after the verdict before the compromise. 3 Burr. 1256, part of the rule not to file bill. Rex v. Wheeler. Case referred. Party agreed not to file bill in Chancery. Award and judgment. Defendant brought bill in Chancery. Attachment against party for bringing bill in Chancery. The compromise was made after judgment, out of court, to terminate the case and prevent a writ of error. We then could not apply to the court below. Suit was done there. 1 Binn. 75, Pennsylvania case. That court takes notice of an agreement made out of court, on a writ of error to Common Pleas of Chester. Amendment of writ of error on agreement of the attorneys below, not on record. Andr. 229, Lord Hardwicke. Decree by consent of counsel. No appeal. Here there was a consent that judgment should stand, proved by payment of the money by the parties. Here a part only of the money was paid. If the whole money had been paid without any agreement or understanding, but merely to pay the money, that we do not say should prevent a writ of error. This was paid by way of compromise, a less sum, bill of exception depending. We took a less sum. We now cannot in any way recover our whole debt, because we took in satisfaction; but if they are allowed to prosecute a writ of error, they have a chance to get rid of the whole sum. If this court allows them to proceed, the agreement is rendered null on one side, though binding on the other. The loss of the bill of exception can be accounted for only on ground of compromise.
Vandyke for plaintiff in error. This is an application to dismiss the writ of error. No rule to show cause why the writ should not be dismissed. This application is made on affidavit, on matter in pais, not on record. Plaintiff in error should be heard, that is, allowed to state his facts, to be heard by his proofs. This is a *279matter of surprise. I know nothing about it. I was no party nor agent in the compromise. The court certainly will not dismiss this writ on this ex parte affidavit.
Per Curiam.
Let the affidavit be filed and a rule laid to show cause why this writ of error should not be dismissed. And leave given to file affidavits on the part of plaintiff in error.
January, 1816.
At an adjourned court the rule laid at August last came on to be argued. Present: Ridgely, Johns, Warner, Way, and Davis. No affidavits were filed according to the leave given.
Rodney, for defendant in error, reads Poole’s affidavit. If judgment below should be affirmed, we cannot recover the sum we gave up on the compromise which was $1000. And yet if judgment be reversed, they would recover the sum paid. We cannot even buy peace, if they can proceed. The debt was compromised. 1 H.Bl. 21, (cited by Rogers in his argument last August). This compromise amounts to a release of error. Amb. 229, no appeal will lay to a decree given by consent.
Vandyke for plaintiff in error. This question must be tried according to law. If the defendants have anything like a release, they must plead it. This motion is founded on an ex parte affidavit. We have a right to the writ of error. If anything is wrong in law, the Court will give redress. If any fact releases defendants in error, let them plead it. Admitting the affidavit to be true, yet the Court are not Chancellors. They are to decide on law. This money was recovered from sureties on a false judgment. On a judgment which this Court in a like case said was erroneous. The compromise was under a mistake, we paid them when we were not bound to pay them a cent.
Read for defendants in error. This is not to be pleaded as a release, nor in abatement. It is an application in a summary way, made on the foundation of a compromise, which compromise operates so as to preclude them from bringing a writ of error. If they are precluded from writ of error, it is by the act of plaintiffs in error, by their making a compromise. Compromise made after the judgment below. The application is made here as in other "cases of summary applications; .by affidavits and counter-affidavits. The affidavit of Poole is now to be taken as true, no counter-affidavit being filed. The facts stated amount to a compromise. The defendants in error (plaintiffs below) agreed to take less than they were entitled to, a matter of compromise to avoid coming into this court. Plaintiffs below took a less sum *280merely to conclude the matters. They were entitled to a much larger sum, and accepted the money paid to avoid coming into this court. Nothing but the compromise could have induced them to accept a less sum than that recovered. The only benefit plaintiffs below could have was to put an end to the case by the not bringing a writ of error. This Court could not sustain a writ of error in violation of an agreement. An agreement in pais hot to bring a writ of error would enable this court to lay their hands on the agreement and stop the prosecution of the writ of error.
Chancellor Ridgely.
The payment of the money is no proof, of itself, of any agreement not to bring a writ of error. The defendants below (plaintiffs here) were bound to pay the money or give bail on a writ of error. This is not like the cases cited of agreements not to bring writ of error, entered on record and making parts of the cases. There the court might very well judge of the effect of such agreements, but here a release or compromise is not admitted and is rather a matter of inference than an express agreement. Whatever it is, it is a fact to be collected from circumstances which occurred at the time' of the transaction, and not from any positive engagement either verbally or in writing. I avoid intimating any «opinion as to the facts, because as they are denied they must be decided by a jury. If it amounts to accord and satisfaction, or release of errors, it must be pleaded, and then the question upon a proper issue will be decided by a jury.
The rule must be discharged.
Warner, Justice of the Court of Common Pleas, and Davis, Justice of the Supreme Court, concurred. Johns, Chief Justice of the Supreme Court, and Way, Justice of the Court of Common Pleas, contra.
Rule discharged. ...
[Thereafter the defendants in error pleaded release, and] no replication having been made, judgment of non prosequitur was entered by the opinion of Chancellor Ridgely, Johns, Cooper and Davis, Justices of the Supreme Court, in pursuance of the following rule made by this Court August 11, 1815:
It is ordered by the Court that on writs of error and appeals in civil actions, all rules of the Court entered in any such case shall, unless the same be complied with, be considered as absolute, although advantage be not taken of such rule by the adverse party or his counsel.
[Note.] The case which next follows, Nivin v. the State, for the use of Field and others, is given here as a note. The writ of *281error, in the above, Ball and Nivin v. Morton Tatnall, was brought in consequence of the reversal of the judgment in that case, Nivin v. the State. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487495/ | Chancellor Ridgely.
This case will be decided by settling the question whether Smith was a trespasser, no goods being found in the house of Simpson on the execution of the warrant. If Smith was a trespasser, then the directions given to the jury were wrong, for in that event no actual breaking was necessary to constitute him a trespasser; neither will any assent to the search being made excuse him, because Simpson was bound to submit to the warrant. As this case appears, the assent of Simpson himself would not avail Smith, because it would have been an assent to an act to which he was obliged to yield, and which he could not and ought not to resist, and consequently the assent of the uncle can have no effect.
The case turns on the innocence of Simpson. It is no excuse to Smith that he entered with the officer executing the warrant. The warrant protected the officer, but not Smith. The officer was bound to execute it. His duty compelled him so to do. In Smith it was voluntary. He was under no obligation to charge Simpson, unless he had been really guilty; and although circumstances might have been very strong, and might, in the mind of Smith, have amounted to full proof of Simpson’s guilt, yet Smith was the actor, the voluntary actor, guided by his own judgment, *291Simpson was passive, obliged to submit; and it is far better that the innocent man should be protected who merely yields to the law, than that the first mover, however unintentional of mischief, should be at liberty to disturb the repose of families, create trouble, confusion and distress, and expose to suspicion the plaintiff’s character without cause. There may be some hardship on both sides; but, even if that consideration could enter into the question, it is less on the part of the defendant than plaintiff.
The case of the excise officer, Bostock v. Saunders et al., 3 Wils. 434, 2 Bl.R. 912, has been overruled by the Court of King’s Bench in Cooper et al. v. Booth, 3 Esp. 135 (cited [1] Term 535). This last case was decided entirely on the Act, 10 Geo. I, c. 13, and is clearly distinguishable from the present case. First, by that Act a duty is imposed on an excise officer who has grounds of suspicion to lay such grounds on oath before the Commissioner of Excise. And secondly, to avoid the warrant in respect of the excise officer on the event of not finding the goods searched for, and to consider him, the officer, a trespasser by relation would repeal the Act of Parliament. These are some of Lord Mansfield’s reasons for deciding in favor of the officer, but the whole case is grounded on the Act of Parliament; and as that, in the opinion of the court, justified or excused the officer, it is not a case similar to the one before us.
According to 2 Hale P.C. 150, the officer is excused, but the narty who makes the suggestion is answerable if no goods be found, and in 2 Wils. 290, 291, it was resolved that if on a search-warrant no goods are found, the informer is a trespasser. No case has been produced, and I know of none, which excuses the person procuring the warrant. Certainly the case of excise officers depends on very different principles.
The Constitution, Art. 1, s. 6, was made to protect the rights of individuals, and to secure them from searches and seizures, except under the restrictions therein prescribed. It never was designed to enlarge the means of access, nor to excuse a person searching, if the party searched were innocent. It is a mandate to the justice; he is bound to comply with its injunctions; and perhaps I should not go too far to say that a warrant differing from the form and without the prerequisites of the Constitution would be void, and that the justice, constable and informer would all be liable in an action of trespass. However, this is not before the Court and not necessary now to be decided. It is enough to say that the Constitution has no application to the case under consideration.
Judgment reversed, Booth, C. J., Warner and Davis, J.J., concurring; Cooper, J.,contra. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487497/ | *297On June 13, [by]
Chancellor Ridgely.
The assignment of errors in this cause, in relation to the record, is similar to the errors assigned in the case of Wilds v. William Green, and therefore the observations made on that occasion apply here and need not be repeated. The variance between the writ and the record is the only material matter for consideration.
And if that variance were brought properly before the Court, it would be fatal. As, in error in trespass the writ was quare clausum fregit; the count was clausa fregit; for this variance the judgment was reversed. Cro.Eliz. 185; though this case seems to be doubted, the word clausum being nomen aggregativum and may contain many closes. Sty. 109. See “System of Pleading,” or Doct.Pl. 41, 505. So the plaintiff demanded in the writ of £166.13.4 [and] in the declaration £171.10; this was a fatal variance, and judgment was reversed. Cro.Eliz. 198. So, action on the case that defendant had exalted his yard and made a ditch, whereby he conveyed filth etc., after verdict it was moved in arrest of judgment that the writ varied from the declaration. The writ was for raising the yard; the declaration for raising the yard and making a gutter. This was a fatal variance not aided by 18 Eliz., c. 14, which helps only where there is no writ, not where the writ and declaration vary in substance. Cro.Eliz. 82. (See Cowp. 178; 1 Term 235, 656 as to variance, though not directly in point in this cause.)
But to have the benefit of this variance, the defendant below should have craved oyer of the writ and spread it upon the record. 2 Salk. 658.
*298In replevin, the declaration for taking averiarium ipsius. Exception was taken that averiarium was nonsense. Holt, C. J., if the original had been averiarium, it had been naught. This is only a recital of the original, and the court will not judge upon a recital; but the way to take advantage is to crave oyer, for this recital is only a short intimation to the court of what kind the plea is. Powell, J., if this case had been by error out of the Common Pleas, in which case the plaintiff could not have taken advantage of this fault by oyer, then he must have alleged diminution and prayed a certiorari; and if the original returned had been so, the court would have reversed the judgment. 2 Salk. 701. (Note. Not in a court of error.) So, in 2 Wils. 85, defendant pleaded a variance between the writ and declaration without craving oyer of the writ. Plaintiff demurred. Held that the defendant should answer over, agreeably to the case of Bragg v. Digby, 2 Salk. 658, which is in point.
Formerly when the whole original writ was spread in the same roll with the count thereupon, if a variance appeared between the writ and count, the defendant might have taken advantage thereof by motion in arrest of judgment, or by writ of error, plea in abatement, or demurrer. 2 Wils. 394. 5 Com.Dig. 327. 2 Lut. 1181. But afterwards it was determined that if defendant will take advantage of a variance between the writ and the count, he must demand oyer of the writ and show it to the court. 4 Mod. 248, 2 Salk. 658, 701. 6 Mod. 303. And in replevin for cattle, count for a grey horse, demurrer for variance, judgment for plaintiff. Parker, C. J., cited Salk. 701, and the court held that defendant cannot take advantage of a variance between the writ and count without craving oyer of the writ. And in 1 Str. 225, it was determined that a judgment could not be reversed by a recital of writ, but that the very process itself should be brought before the court. According to these authorities, the plaintiff in error ought, in the court below, to have demanded oyer of this writ and then to have taken advantage of the variance, after having spread on the record the writ and shown that the count did not correspond with the writ. But this has not been done; and although in our loose way the writ and count are sent up to this court upon writ of error, yet this is the act of the clerk below and is not the act of the party, — that is, the party has not put the writ on the record and pointed out the variance or inconsistence of these two proceedings. Although our records are so loosely kept, yet it has always been deemed that the common technical rules apply to pleadings where pleadings are required to be in form, and therefore the plaintiff in error should have taken advantage on oyer of this error.
*299But we observe that a praecipe is annexed to this record by which the clerk was ordered to issue the writ to answer to Elizabeth Green. When I examined, some time ago, this record, that praecipe was not annexed to the writ, and my opinion is made in the case as if it were not there.
I think that the judgment should be affirmed.
Johns, C. J., and Cooper and Davis, JJ. of the Supreme Court, concurred.
Judgment affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487499/ | Per Curiam.
Ridgely, Booth, Cooper, Warner, and Davis unanimously. Judgment reversed. We are of opinion that a promissory note is, by the Act of 1793, 2 Del.Laws 1133, excepted and taken out of the Act of 1792, c. 248, 2 Del.Laws 1031, and that the Act of 1773, c. 216a, 1 Del.Laws 524, is not revived as to promissory notes. There is no clause respecting the Act of 1792, and it appears to have been the intention of the legislature to place mortgage bonds, bills, promissory notes and settlements under the hands of the parties concerned all on the same footing. If this was not the intention, it is not conceivable why mortgages, bonds and bills were introduced into this Act. They were not included in the former Acts; and here they are all excepted from the Act of 1792 and pleaded without limitation, though mortgages, etc. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487500/ | Chancellor Ridgely.
After these papers were produced and read in evidence in the court below, they were as much the papers of the court as the writ or declaration. Regularly they should have been incorporated in the bill of exceptions, but as. in our loose way they are referred to the party taking the bill,, the plaintiff in error here should have annexed those papers to< the bill. It was his duty so to do, and as he has not, he has taken on himself the risk of producing the papers; and if they are not with the bill, the bill cannot be read, for it is a part only of the record. The whole must be read or none. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487510/ | By the Court.
The administrator must be charged with the-amount of sales only. The administrator is neither to gain nor lose by the sales, and if he acts fairly and honestly and gives: proper notice, he is not answerable for any loss in the diminished, value of the goods. It is his duty to sell for the best price he. can get, using proper care; and if the sales are less than the appraisement, he is not accountable. Nothing here appears to impeach the conduct of the administrator. The fact is, nobody would bid against the widow; and this is too common a practice. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487501/ | Johns, C. J.,
concurred that the bill of exceptions when read can have no operation, for it is a mere skeleton.
Davis and Cooper, JJ., were of opinion with the Chancellor that the bill should not be read.
The counsel for plaintiff in error then pressed the court to have a continuance of the cause with the consent of the defendant’s, counsel.
Per Curiam.
The omission to produce here or to have annexed to the bill of exceptions the will, books etc., referred to in the bill and making part of it, is the fault of plaintiff. No legal or reasonable excuse is assigned for this omission, and consequently none is offered for a continuance. The justice of the country and our duty require that the business in this Court , should meet with no unnecessary delay. And if this case were continued, it would be a precedent for other cases. We therefore will not allow it to be continued, but as an immediate hearing will probably have the effect of dismissing the suit without regard to its merits, we will postpone the cause until Tuesday, the 17th of July, by which time the papers can be procured and annexed to the bill.
Sunday, June 15,1817, Isaac Cooper, Esq., a Justice of the Supreme Court, left Dover this day, whereby there was not a quor*315um.of the court, only three members to hear this cause remaining, viz Ridgely, Johns and Davis and so the cause was continued to next term, 1818.1
For the opinion in this case at the next term, see Ridgely’s Notebook II, 105. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487502/ | It was agreed by the Court (Ridgely, Johns, and Davis) that on such an appeal it is not necessary to file causes of appeal, because it is a judgment of the court made up on a consideration of the facts, like the verdict of a jury. The cause of appeal is that the court, on the evidence, has made a wrong conclusion and has rendered a judgment for petitioner instead of the master. Therefore no particular error can be alleged but wrong judgment, and that making the appeal and bringing up the record sufficiently exhibits the cause of appeal. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487503/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487504/ | The Chancellor.
Nathaniel Horsey, the father of Halse Horsey, the intestate, did not die intestate; therefore, in this circumstance, there is a material difference from the case provided for in the fourth section of the Act of Assembly touching the distribution among the whole and half blood of the same common parent. The law did not intend that distribution should be made among the brothers and sisters and their issue of the whole and half blood except in the case of intestacy of the common parent. Halse Horsey took the estate by devise which is in another manner than that of intestacy, and consequently the distribution is to be made among the whole blood only. See 1 Del.Laws 538, s. 4.1
Halsey Horsey, devisee in fee of his father Nathaniel Horsey, died intestate without issue, leaving three brothers of the whole blood, to wit, Nathaniel, Thompson and Revel. Nathaniel, the brother of the whole blood, died intestate leaving issue a daughter Nancy, now the wife of John Bullock. Nancy, the wife of Bullock, is under the age of 21 years. Thompson Horsey sold, it is said, his share in said land to Nathaniel Horsey, deceased. Revel Horsey, by deed of bargain and sale, sold his share to Nancy the wife of John Bullock. Halsey Horsey, the intestate, left two sisters of the whole blood, to wit, Nancy, now the wife of Caldwell Windsor. Nancy is eldest sister. Sally married to James Masters.
John Bullock and Nancy, his wife, have made a conveyance bond to Nathaniel Vickars for all her shares and right in said land; that is the original share of her father, Nathaniel, and the share he obtained by purchase from Thompson Horsey, and the share granted by Revel Horsey to her. But Nancy is not of full age; her husband could not, were he here desiring to accept the *318land, take it because she is not of age. She herself, if she were sole could not accept it, and neither can her husband, he2 not having right to derive any right from her, she not being of full age. By the Act of Assembly, 1 Del.Laws 418, none can take -or give a right to take but such as are of full age, consequently Joseph Vickars cannot take. Besides he is not the assignee, the land not being granted or conveyed to him, but only a bond for the conveyance, an executory contract having been made to him. He is not assignee. John Rust, assignee of Caldwell Windsor and Nancy, his wife, the next in succession, prays to have the land ordered to him. She, Nancy, and her husband, being of full age, and capable of taking, John Rust their assignee can take. Let the land be ordered to him, the above brother and sisters.
John Rust then declined to take the land. He said a few acres •of it were in dispute. Return was continued.3
At this point, Ridgely’s Notebook I, 101, the account of this case is interrupted ; it is resumed at 124, where the account is dated “July 28, 1817.”
Manuscript reads “she.”
At this point Ridgely’s Notebook I, 124, there appears a reference to Ridgely’s Notebook II, 65, where the entry is found, “March 11 [1818]. Halse Horsey — his land assigned to John Rust. (See [notes for] July 22, 1817.. .and July 28, 1817.) Security was given by. recognizance.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487506/ | The Chancellor.
The Register in the allowance of $101.99 has gone beyond the sum sufficient to pay the expenses of boarding and clothing the minor while he was chargeable to James O’Neal. O’Neal ought to be allowed for the first year, but after that period the work and labor of the boy was a sufficient compensation. Let the sum of $101.99 be reduced to $50, and each party to pay his own costs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487507/ | The Chancellor.
The order for the division of the lands and tenements of John Robinson, the intestate, together with the division and return, must be set aside. The two hundred acres held by John Robinson under his father must be deemed an advancement. It would be highly unjust that that land should be thrown into the common stock, and equally so that John Robinson should hold it without making any allowance. He clearly entered into the possession under his father with his consent, not as a tenant, but certainly as a portion of his father’s estate; and as his possession for twenty or twenty-five years has thus been held, it must be presumed as an advancement for which the other heirs must receive an equivalent. John Robinson must pay the costs.
Order and return set aside. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487512/ | By the Court.
Doctor Stewart, the executor of Margaret Kennedy, claims one third part of the residue of the personal estate of her husband, David Kennedy, on the supposition that that residue was not disposed of by his will, and that she, as his widow, was entitled to one third part thereof under the intestate laws of this state.
The first question which offers is, whether the testator did die intestate as to this residue. Secondly, whether the executors took this residue beneficially or as trustees; and thirdly, whether Margaret, the widow, was, in any event, entitled to any part of the residue.
It seems to be admitted by the exceptions taken to the account passed by the Register that the executors were not entitled to the residue; otherwise Margaret Kennedy would have had a right to a moiety. There is no express gift to the executors of this residue; neither is it plainly inferred by any part of the will. On the contrary, the directions to sell the personal estate not given away, and after the payment of debts, legacies and funeral expenses to lay out all monies going into their hands from his estate in the purchase of bank stock, clearly imply an intention in the testator different from that of bequeathing the residue to the executors. Had he intended that they should take, he would in all probability have left the management of this residue to their own discretion. Further, the devise to Margaret Kennedy, his wife, of the horse and carriage, and feather bed and furniture in lieu of her third of the personal estate leaves no doubt that he did not intend that she should take to her own benefit a portion of this residue; and consequently the executors are not entitled to this residue by any express declaration or plain inference. To support the devise to them, both must take. There is no case where one executor is a trustee and the other is not, and consequently they both hold whatever is disposed of under the will, as trustees. For the cases on this subject see White v. Evans, 4 Ves.Jr. 21; Clennel v. Lewthwaite, 2 Ves.Jr. 465, 644; and the cases on this subject remarkably well stated and digested in Mr. Cox’s1 note upon Farrington v. Knightly, 1 P.Wms. 550.
If this residue was not given to the executors for their own use, to whom was it given? Clearly no part of it was given to Margaret Kennedy, the wife. The testator gave her a horse, carriage, bed and furniture in lieu of her third of his personal estate. He has here expressly negatived to her taking any part of the personal estate other than the articles specifically be*344queathed. He, or the writer of the will, probably supposed that whether he died testate or intestate, she would be entitled to a third part of the residue unless he expressly cut her off, as it is commonly called, or forbid her to take any part of it. This was not necessary, for she could take nothing but by his will, except in case of intestacy. It proves, though, most unequivocally, that as to her he did not die intestate; and that he manifestly intended that she should take nothing as his widow. The amount of his bounty to her was the articles given to her; and beyond those he denies her any share. I cannot conceive how she could possibly take any other part of the personal estate, when he so clearly and intentionally withholds it from her. I am warranted in principle in this opinion; but I am not without authority. In Brasbridge and others v. Woodroffe, 2 Atk. 68, it was decreed that, though the executors had legacies, yet as the testatrix had always declared the next of kin should have nothing, the executors should take the undisposed residue; because, as the Master of the Rolls said, if he should give the residue to the next of kin, he should give it contrary to the intention of the testator.
It follows then that as this residue was not given to the executors, and as the widow is not entitled as widow to any portion of it, that it must be distributed among the children of the testator, David Kennedy; and consequently that the account passed before the Register is right.
Appeal dismissed, account confirmed, and appellant to pay costs.
Samuel Compton Cox, editor of the fourth edition of Peere Williams’s Reports. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487513/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487514/ | The Chancellor.
The three first exceptions to this general account are: first, that the guardian has not accounted for the full value of the rents of the mill and farm, as much greater annual rents could have been obtained for them; second, that the guardian occupied the mill from March, 1802, to March, 1808, and that during that period the rents and profits of the mill exceeded $106.67, the appraised value; and third, that the guardian has expended large sums in the repairs of the mill and yet allows no additional rents. These exceptions I have disallowed because the repairs were necessary to the interest of the minor, and because it appears by the testimony that even after the repairs were made the rents were not worth more than $106.67 per annum. It was the want of a road to the mill which depressed its value, and although after the new road was obtained the value was increased, yet for a portion of the time before the repairs were made, and during the period of repairing, it rendered no profit to the guardian. This lost time has not been deducted, and altogether the charges are as correct as could probably be ascertained.
So much of the fourth exception is allowed as the want of vouchers will not support the charges which the guardian has. made.
As to the special account, I have deducted charges against the ward to the amount of $397.49%. These charges accrued for the maintenance of the ward and for money advanced to him. When Ryland became guardian, the ward was about fourteen years old, healthy and capable of obtaining his maintenance, had he been employed. Instead of that, with an income averaging about $54.49, and that liable to repairs to nearly its whole amount, the guardian was allowed $56.78 a year towards maintenance when the ward should have been learning some business which would have supported him during the time, and which would have qualified him for future usefulness.
Guardians should be allowed for repairs necessary to the interest of the ward. Some repairs may be called necessary, which are injurious. As, suppose a mill seat with an old ruinous, mill. To rebuild or repair such a mill may be destructive to the ward, although it may be necessary to the particular property. The true principle is this, that whatever repairs or expenses will benefit or improve the ward’s estate may properly be allowed to *347the guardian; and such as are detrimental should not be allowed, although the particular property may be improved.
As to maintenance and education, the income of the ward must not be exceeded. This is the general rule. See 3 P.Wms. 365, 3 Atk. 430, 2 Bro.C.C. 231, 3 Ves.Jr. 10. But there may be exceptions. Vide Prec.Ch. 559, where an extraordinary allowance was made on account of a fit of sickness. Although such be the general rule, if there be no necessity that the income be expended, or its expenditure be not beneficial to the ward, it ought not to be allowed. As suppose a young man with a small income, hearty and capable, who ought to learn some mechanical trade or should be employed in agriculture; there his services will so much exceed his maintenance and education that no allowance should be made therefor. Even where the ward is designed for a learned profession, a guardian cannot exceed his income. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494107/ | MEMORANDUM OF DECISION
LESLIE TCHAIKOVSKY, Bankruptcy Judge.
In this adversary proceeding, plaintiff Lois I Brady (the “Trustee”), the duly appointed chapter 7 trustee for the above-captioned bankruptcy case, seeks to avoid a pre-petition transfer to defendant Best-worth-Rommel, Inc. (“Bestworth”) pursuant to 11 U.S.C. § 548(a)(2) and to recover the amount of the transfer from Best-worth pursuant to 11 U.S.C. § 550(a) or (b). Trial was conducted in this adversary proceeding on October 11, 2006. Having considered the evidence and argument presented at trial, the Court concludes that the Trustee’s claim must fail and that Bestworth is entitled to a judgment in its favor. The reasons for the Court’s decision are set forth below.
SUMMARY OF FACTS
The underlying facts are not in dispute. The above-captioned debtors (the “Debtors”) commenced this chapter 7 bankruptcy case on October 8, 2003, by filing a voluntary petition. At the time the petition was filed and during the year preceding the filing, Debtor Bruce Jacobsen was an employee and shareholder of a California corporation known as Elephant & Sion, Inc. (“Elephant”). Elephant was the owner of certain real property located in San Pablo, California, consisting of a gas station (the “San Pablo Property”).
Elephant was indebted to Bestworth in the amount of $13,572.39 (the “Debt Amount”) for fabrication and installation of *138a metal canopy on the San Pablo Property.1 Bestworth had issued an invoice for the Debt Amount in January 2003. However, the Debt Amount was not paid on a timely basis. As a result, on April 7, 2003, Bestworth recorded a mechanic’s lien on the San Pablo Property (the “Lien”). Thereafter, in early July 2003, Bestworth filed an action in Contra Costa Superior Court against Elephant to foreclose Lien (the “Lien Suit”).
At the time the Lien was recorded and the Lien Suit was filed, Elephant was attempting to sell the San Pablo Property. The recordation of the Lien and the filing of the Lien Suit was an impediment to the sale. To remove this impediment, the Debtors agreed to advance funds to pay the Debt Amount. The funds provided were the separate property of Debtor Lee Jacobsen. On June 27, 2003 Mrs. Jacob-sen purchased a cashier’s check in the Debt Amount (the “Cashier’s Check”). She gave the Cashier’s Check to her husband, who delivered it to North American Title Company (the “Title Company”), the title company handling the sale of the San Pablo Property.
The Cashier’s Check was made payable to Bestworth. However, instead of delivering the Cashier’s Check to Bestworth in return for a release of the Lien, the Title Company negotiated the Cashier’s Check. It then issued its own check in the Debt Amount payable to Bestworth (the “Title Company Check”). Upon receipt of the Title Company Check, Bestworth executed a release of the Lien, and the Lien release was recorded in the County Recorder’s office. It is undisputed that at the time Lee Jacobsen provided the Cashier’s Check to the Title Company and the Title Company negotiated it and provided the Title Company Check to Bestworth, the Debtors were insolvent.
APPLICABLE LAW
Section 548(a)(1)(B) of the Bankruptcy Code provides, in pertinent part, that a trustee may avoid a transfer of a debtor’s interest in property made within one year preceding the commencement of the debt- or’s bankruptcy case if the debtor:
(B)(i) received less than a reasonably equivalent value in exchange for such transfer ... and
(ii) was insolvent on the date that such transfer was made ...[.]
See 11 U.S.C. § 548(a)(l)(B)(i) & (ii). Section 548(c) provides, in pertinent part, as follows:
[A] transferee ... of ... a [fraudulent] transfer ... that takes for value and in good faith has a lien on or may retain any interest transferred ... to the extent that such transferee ... gave value to the debtor in exchange for such transfer....
See 11 U.S.C. § 548(c).
Section 550(a) of the Bankruptcy Code provides, in pertinent part, that:
... to the extent that a transfer is avoided under section ... 548 ..., the trustee may recover, for the benefit of the estate, the property transferred, or if the court so orders, the value of such property, from—
(1) the initial transferee of such transfer ...; or
(2) any immediate or mediate transferee of such initial transferee.
See 11 U.S.C. § 550(a). Section 550(b) provides that the trustee may not recover under section 550(a)(2) — i.e., other than from an initial transferee — from:
(1) a transferee that takes for value, including satisfaction or securing of a *139present or antecedent debt, in good faith, and without knowledge of the void-ability of the transfer avoided ...[.]
See 11 U.S.C. § 550(b)(1).
DISCUSSION
This adversary proceeding presents four issues, which the Court will address in turn:
(A) Is the transfer of the Debt Amount an avoidable transfer under 11 U.S.C. § 548(a)(1)(B)?
(B) Is Bestworth nevertheless entitled to retain the Debt Amount pursuant to 11 U.S.C. § 548(c)?
(C) Was Bestworth the initial transferee and thus entitled to no defense under 11 U.S.C. § 550(b)?
(D) If Bestworth was a subsequent transferee, has it established a defense to the Trustee’s recovery action pursuant to 11 U.S.C. § 550(b)?
A. IS TRANSFER AVOIDABLE UNDER 11 U.S.C. § 548(a)(1)(B)?
There are four elements to a claim for avoidance of a fraudulent transfer under 11 U.S.C. § 548(a)(1)(B). The elements are: (1) a transfer to the defendant of an interest of the debtor in property; (2) within one year prior to the commencement of the debtor’s bankruptcy case, (3) for less than reasonably equivalent value in exchange for the transfer, and (4) at a time when the debtor was insolvent.2 Bestworth does not dispute that the Trustee is able to establish her burden of proof with respect to each of these elements. Thus, the transfer of the Debt Amount is clearly avoidable.
B. IS BESTWORTH ENTITLED TO RETAIN THE DEBT AMOUNT PURSUANT TO 11 U.S.C. § 548(c)?
Bestworth contends that, nevertheless, 11 U.S.C. § 548(c) gives it the right to retain the Debt Amount. As recited above, 11 U.S.C. § 548(c) permits a good faith transferee to retain funds fraudulently transferred to the extent that the transferee gave “value to the debtor in exchange for ... [the] transfer....” See 11 U.S.C. § 548(c). The Trustee does not dispute that Bestworth is a good faith transferee. However, she contends that Bestworth did not give any value to the Debtors in return for the transfer of the Debt Amount. She is clearly correct.
Bestworth contends that the value it provided to Elephant — the satisfaction of the Debt Amount and release of the Lien — was sufficient for this purpose. In support of this argument, it cites In re SLF News Distributors, Inc., 649 F.2d 613 (8th Cir.1981). In SLF News, a contractor with an unpaid claim released its right to record a mechanics’ lien against real property in return for receiving payment of its claim. As in the instant case, the form of the payment did not put the contractor on notice that the payment came from someone other than the owner of the real property, its account debtor. When the party that furnished the payment filed for bankruptcy, the trustee sought to avoid the transfer as constructively fraudulent and to recover it from the contractor. Id. at 614. The SLF News court held that, under these facts, the contractor was entitled to retain the payment.
The principal problem with Bestworth’s reliance on SLF News is that it was decided under the Bankruptcy Act, which was repealed in 1978, and replaced by the Bankruptcy Code. In granting the contrac*140tor a defense, the SLF News court was construing a different statute: i.e., section 67(d)(6) of the Bankruptcy Act. Section 67(d)(6) provided as follows:
(6) A transfer made ... by a debtor adjudged a bankrupt under this title, which is fraudulent under this subdivision against creditors of such debtor having claims provable under this title, shall be null and void against the trustee, except as to a bona fide purchaser, lienor, or obligee for a present fair equivalent value [emphasis added.]
See 11 U.S.C. § 107(d)(6) (1976) (repealed 1978), as quoted in SLF News, 649 F.2d at 615. The SLF News court held that the contractor qualified as a bona fide purchaser with respect to the payment received. Id.
The statute applicable — 11 U.S.C. § 548(c) — here is worded quite differently. As noted above, it expressly requires that party asserting the right to retain the transferred interest in property to have given “value to the debtor in exchange for ... [the] transfer .... [emphasis added.]” By contrast, 11 U.S.C. § 107(d)(6) protects “a bona fide purchaser for present fair equivalent value[.]” It does not expressly require that the value be given to the debtor. Because Bestworth did not give value to the Debtor, Bestworth’s defense under 11 U.S.C. § 548(c) must fail.
C. IS BESTWORTH AN INITIAL TRANSFEREE?
The Trustee contends that Best-worth was the initial transferee of the payment of the Debt Amount within the meaning of 11 U.S.C. § 550(a)(1). As a result, she contends, it has no right to assert a defense to her recovery action pursuant to 11 U.S.C. § 550(b). She contends that the Title Company, which was acting as an escrow agent, was a mere “conduit” to the transfer and should not be considered the initial transferee. In support of this contention, she cites In re Williams, 104 B.R. 296, 298 (Bankr.C.D.Cal.1989).
In Williams, after filing a chapter 7 bankruptcy case, the debtor sold real property to a third party through an escrow. A portion of the sale proceeds were paid to the IRS which had filed a lien against the real property. The trustee sued to avoid the transfer and to recover the sale proceeds from the IRS. As here, the issue was whether the IRS was the initial transferee, and therefore not entitled to assert a defense, or a subsequent transferee and therefore not absolutely liable. Id., at 298-99. The Williams court held that the IRS was the initial transferee. It reasoned that, for the IRS to be a subsequent transferee, the escrow company would have to be viewed as the initial transferee. It rejected this notion, making the following observation:
That is not an accurate view of the typical role of an escrow company. An escrow company is merely a conduit through which funds flow from a purchaser to a seller. The escrow company did not purchase the property itself.
Id., at 299.
The problem with the Trustee’s reliance on Williams is that Bestworth does not contend that the Title Company was the initial transferee, at least not on its own behalf. To the contrary, it contends that Elephant was the initial transferee and that the Title Company was acting as Elephant’s agent when it received the Cashier’s Check from the Debtors.
Given this argument, a case more on point is In re Presidential Corp., 180 B.R. 233 (9th Cir. BAP 1995). In Presidential, a chapter 7 trustee of a corporation sued a real estate agent to recover a commission received through a sale escrow. The sale *141transaction was constructively fraudulent and therefore avoidable because the corporation’s funds were used to purchase real property for the corporation’s sole shareholder — Vatche Manoukian (“Manoukian”).
The real estate agent argued that Manoukian was the initial transferee and that, as a good faith subsequent transferee, he was entitled to assert a defense under 11 U.S.C. § 550(b). The Presidential court agreed. It observed that, under the law applicable to that adversary proceeding, i.e., Washington law, an escrow agent is the agent of both the buyer and the seller. On whose behalf the agent hold funds depends on the purpose for which the funds are held. In either event, the agent is a mere conduit for the party in question. Under the facts presented there, the Presidential court found that the escrow agent was acting on behalf of Manoukian. See id., 180 B.R. at 238.
California law is consistent with Washington law. See St. Paul Title Co. v. Meier, 181 Cal.App.3d 948, 952, 226 Cal.Rptr. 538 (1986). In the instant case, the Title Company clearly received the funds as a conduit for Elephant. The purchaser of the San Pablo Property had no claim to the funds, and Bestworth was not a party to the transaction. Thus, the Title Company could not have been acting as agent for either of them. Elephant cannot be viewed as a mere conduit for Bestworth because it had dominion and control over the funds once they were placed in escrow.
The testimony at trial was consistent with this conclusion. Mr. Jacobsen testified that he and the other shareholder had agreed that, if the San Pablo Property sold for a sufficient amount to repay all creditors, he would have the right to be repaid the amount of the advance before the net sale proceeds were divided between the two of them. Thus, the advance may be viewed as either subordinated loan or as preferred equity investment. In either event, it represented a transfer to the corporation. As a result, the Court concludes that Bestworth is a subsequent transferee and, as such, entitled to assert a defense under 11 U.S.C. § 550(b)(1).
D. CAN BESTWORTH ESTABLISH A DEFENSE UNDER 11 U.S.C. § 550(b)(1)?
As set forth above, a trustee may not recover the amount of an avoided transfer from:
(1) a transferee that takes for value, including satisfaction or securing of a present or antecedent debt, in good faith, and without knowledge of the void-ability of the transfer avoided ...[.]
See 11 U.S.C. § 550(b)(1). This defense has three elements: (1) the transferee must have received the transfer for value, which may include the satisfaction or securing of a present or antecedent debt; (2) the transferee must have received the transfer in good faith; and (3) the transferee must have had no knowledge of the voidability of the transfer at the time the transfer was received. The Trustee does not appear to dispute Bestworth’s ability to satisfy each of these three prongs.
Unlike 11 U.S.C. § 548(c), 11 U.S.C. § 550(b)(1) does not expressly require that the value provided by the subsequent transferee be given to the debtor. Since this requirement was expressly stated in 11 U.S.C. § 548(c), it seems unlikely that its omission in 11 U.S.C. § 550(b)(1) was an oversight. Moreover, since a subsequent transferee receives the transfer from someone other than the debtor, absent unusual circumstances, it would be unreasonable to expect a subsequent transferee to give value to the debtor in exchange for the transfer. Thus, the Court concludes that Bestworth has a established a defense to the Trustee’s recov*142ery action under 11 U.S.C. § 550(b)(1). This conclusion is consistent with the few reported cases on the issue. See Bonded Fin. Servs. v. Eur. Am. Bank, 838 F.2d 890, 897 (7th Cir.1988); In re KZK Livestock, Inc., 221 B.R. 464, 469-70 (Bankr.C.D.Ill.1998).
CONCLUSION
The transfer represented by payment of the Debt Amount is avoidable as a constructively fraudulent transfer pursuant to 11 U.S.C. § 548(a)(1)(B). Bestworth is not entitled to retain the avoided transfer pursuant to 11 U.S.C. § 548(c) because it did not provide value to the Debtors in exchange for the transfer. Bestworth is a subsequent transferee pursuant to 11 U.S.C. § 550(a)(2), rather than an initial transferee pursuant to 11 U.S.C. § 550(a)(1). Thus, it is entitled to assert a defense to the Trustee’s recovery action pursuant to 11 U.S.C. § 550(b)(1). Best-worth has established the right to such a defense, having proven by a preponderance of the evidence that it received payment of the Debt Amount for value, in good faith, without knowledge of its voidability. Counsel for Bestworth is directed to submit a proposed form of judgment in accordance with this decision.
. The Debtors were not personally obligated for the Debt Amount.
. A transfer that rendered the debtor insolvent may also be avoided. However, in this case, it is undisputed that the Debtors were insolvent at the time of the transfer. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487522/ | Petition dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487525/ | The Chancellor.
The land out of which dower is claimed is part of the real estate late of Constantine Cannon, deceased, the father of Clement Cannon, the late husband of Rebecca Cannon, the petitioner, and also father of Charlotte White, the respondent, the widow of William White, deceased.
Clement Cannon arrived to the age of twenty-one years in 1800 or early in 1801. The land was ordered to him by the Orphans’ Court at April, 1801, upon due proceedings had agreeably to the intestate laws. William White was his surety for the payment of the several shares of the appraised value of the land to the other heirs of Constantine Cannon. White, as the guardian or as the agent of the guardian of Clement Cannon, lived in the mansion house, and Cannon with him, during Cannon’s minority and about a year after. White, it is alleged, purchased the land in which dower is claimed in April, 1801. He built a dwelling-house on the land and afterwards moved on it early in the year 1802, before the marriage of Clement Cannon with the petitioner. The marriage took place September 26, 1802. From the time that White built on this land and took possession of it, both he and Cannon treated it as White’s land.
On November 30, 1801, Baynard White, who married a daughter of Constantine Cannon, drew an order on Clement Cannon *378in favor of William White for £158.16.0%, being his, Baynard White’s, wife’s share of the value of the land. This order was. accepted by Cannon December 3, 1801.
On January 15, 1805, John Brown drew an order on Clement: Cannon in favor of William White for £16.2.7, which was accepted by Cannon “in part payment of land sold to William White.” This is the first writing in which any mention is made of the.' land being purchased by White. After the death of William White, an amicable action was entered by Clement Cannon, against Charlotte White, the respondent, executrix of William. White, for divers matters in controversy. Cannon then charged White’s executrix with the sum of £386.1.2 and interest thereon, from April 28, 1801 for land sold to White. This sum, £386.1.2, with its interest from April 28, 1801, was allowed to Cannon by the arbitrators. The whole testimony proves that the consideration, £386.1.2, was the full value of the land.
White’s wife being entitled to a share of the appraised value of the land and a sale of part of the land being made to White-were the reasons, perhaps, which induced White to be security for Cannon on the recognizance given on the acceptance of the-land; and these circumstances most likely enabled Cannon to accept it.
With respect to the fact of the agreement for the sale of the' land to White before the marriage, I have no doubt; for I cannot conceive that White would have erected buildings unless some-contract had been made between him and Cannon. It is not credible that he would have incurred so much expense, and that so-many acts would have been done by both parties acknowledging' and recognizing White to be the owner of the land, if he had not purchased it. No fraud has been imputed to him. Hence it is. that I have no hesitation in believing that White agreed with Cannon before the marriage for the purchase of this land. But,, if he did, it is said to be a paroi contract and is not good. If it had been a mere contract and nothing more, the objection would", have been good; but White not only possessed himself of the land, but before the marriage he erected a dwelling house on it. and afterwards expended money in improving the land. The' house was built and possession taken with the knowledge of Cannon, and repeated acts of ownership were exercised by White in conjunction with Cannon, such as regulating the lines between the two. And, additionally, the order is drawn on Cannon by-Brown in favor of White for £16.2.7, and accepted by Cannon, “to be applied in payment of land sold to William White.” All., which not only establishes the agreement for the sale of the land,. *379but shows such a performance as gave White a clear right in ■equity to the land.
But it is said that the acceptance of Brown’s order after the marriage is not sufficient to bar the widow, and that a husband at any time in this manner [might] prevail against his wife and defeat her of her dower. All this would be true, and the objection would be unanswerable, if the sale rested on this order only. But that acceptance did not make the contract. It is only evidence of the original contract; and let that transaction be connected with the other circumstances, and the conclusion is inevitable. This acceptance in writing would be sufficient according to the Act of Assembly; and by relation to the building, the possession and improvements made by White, and other acts of the parties before the marriage, the whole proves that, before that event, White had a clear equitable title, and that Cannon, at the time of White’s death, was a mere trustee. I refer to the case of Pym v. Blackburn, 3 Ves.Jr. 34, and to the note to that case for the authorities where there has been a part performance of a contract. See also Potter v. Potter, 1 Ves.Sr. 437.
As there has been no conveyance made by Cannon to White, the legal estate is still in the heirs of Cannon, and they are trustees for the heirs of White. This trust estate, in equity, is considered as equivalent to the legal estate, is governed by the same rules, and is liable to every charge in equity which the other is subject to in law. The trustee is the mere instrument of conveyance and can in no other instance affect the estate, unless by alienation for a valuable consideration to a purchaser without notice. The trust will descend, may be aliened, is liable to debts, to leases and other encumbrances, nay, even to the curtesy of the husband, as if it was an estate at law. It has not yet indeed been subject to dower, more from a cautious adherence to hasty precedents than from any well grounded principle. See 1 P.Wms. 109; 2 P.Wms. 713; 3 P.Wms. 229; 2 Atk. 525; Burgess v. Wheate, 1 Bl.R. 138, 161; Dixon v. Saville, 1 Bro.C.C. 326; Attorney General v. Scott, Talb. 138; 2 Bl.Comm. 337.
For these reasons I am of opinion that Clement Cannon in his lifetime being a mere trustee, his widow, Rebecca Cannon, the petitioner, is not entitled to dower in this land.
Petition dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487526/ | The Chancellor.
There are no other charges in this account which should be disallowed to the guardian than the sum of $71.15 paid to Benton Harris for clothes for the ward. Considering the debts pressing upon the ward’s estate and the health and strength and age1 of the ward at the time the $71.15 were expended, it is unreasonable and unjust that such a charge against the ward should be allowed. The debts due from her deceased father threatened the sale of the estate. The whole rents were necessary to be applied to those debts to prevent the sale. The ward had no income, for the debts required every cent of the rent to save the land, and yet an unnecessary expense to the amount of $71.15 is incurred and now charged against the ward. I call this expense unnecessary because the ward was competent to get her living. She was healthy and capable of any kind of labor proper for her sex and could have very decently maintained herself. In cases of this kind, the guardian ought to have compelled her to earn her maintenance. There is no charge for schooling, neither was any expense incurred by sickness.
The advance of money by Mrs. Harris, the administratrix of the father of the ward, was certainly very meritorious. She saved the land for the ward, her child, and for her other children; and her present husband, the guardian, should have the benefit of such advance, if it could now be noticed.
But in passing this account he did not choose to charge the ward with any portion of the debts paid the administratrix, his wife. These charges or debts may still exist against the chil*381dren. It does not appear that the debts have been actually discharged; they may have been assigned. At any rate, they have not been introduced into this account, and I can take no notice of them, as the exceptions and accounts now appear before me.
Burton Harris, witness for the respondent, had testified, “She was about fourteen years old,” Ridgely’s Notebook II, 55. No other evidence of the ward’s age or health is found in the evidence in Ridgely’s Notebook II, 54-56. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487528/ | *411This case was held under advisement until the [-] 2 when the Chancellor delivered the opinion of the Court.
Notwithstanding the numerous errors assigned in this cause the counsel for the plaintiff in error relied upon three only as sufficient for a reversal of this judgment. First, it was insisted on that the suit should have been brought in the names of the husband and wife. Secondly, that the plaintiff should, in his declaration, have referred to the Act of Assembly authorizing this action, and that by omitting so to do, this is an action at common law, and therefore is not maintainable. Third, that this is an action of debt for $120, and that the jury, without finding the debt, merely find for the plaintiff and assess damages to $106.20.
1. The cases which have been cited seem to involve some doubt but the result of them is that the suit may be brought in the name of the husband alone. Questions upon legacies in England belong to the Court of Chancery. They cannot perhaps be compared to bonds made to a feme covert. A husband could not file a bill in chancery in his own name, for a legacy bequeathed to his wife while a feme covert. 5 Ves.Jr. 515. In the case of Garfuth v. Bradley, 2 Ves. 675, the opinion is pretty explicitly expressed that suits may be brought by the husband alone for *412chose in action which came to the wife during coverture. For the recovery in his own name is equal to reducing it into possession. The husband according to our Act of Assembly becomes bound to refund in case of debts, and upon the whole the suit in the name of the husband is well enough. See 1 Vern. 261. 2 Bac.Abr. 290 D. (Note. See 1 H.B1.108 which seems contra.)
2. As to the declaration, that is well enough. All that is necessary is that the plaintiff should show in his declaration that his case is within the Act of Assembly, and that he has performed all which the Act requires to entitle him to this action. The Act need not be referred to nor recited. It is a public act, and the judges are bound to take notice of it. The right of the plaintiff below arises under the will. This particular remedy is given by the Act of Assembly, and it is sufficient that he brings his case within the Act, 1 Dyer 3-85a; 1 Com.Dig. 329, title, “Action upon statute,” (N); Bull.N.P. 3, 4. The case of Reddarn and Davis v. Rogers, qui tam, decided in this Court at August, 1813, is not like the present one. The plaintiff below did not state his case according to the Act of Assembly. The Court observed, “He (the plaintiff below) must charge the very offense which the Act intended to prohibit so as to precisely bring the case to that for which the penalty is given.” He, the plaintiff below, has brought his case within the Act, and that is sufficient. He has shown that he has done all which Act requires to entitle him to this action and that the Act was intended to furnish a remedy in cases like this.
3. As to the verdict, it is thus entered: They find for the plaintiff and assess damages to $106.20 etc. This is error for they ought to have found the debt, and then the damages on occasion of the detention of that debt. But this verdict is amendable in the court below, for it is clear from the record that the jury intended to find the debt and to assess the damages. Part of the debt was satisfied, and the $106.20 include the whole debt due and the damages, after allowing the payments and calculating the interest. The mistake was committed in entering the verdict for damages. 1 Com. 471; Cro.Jac. 185; 1 Salk. 47, 53. See 1 H. Bl. 238; 1 Bun. 322; Str. 1197; 1 Wils. 303; 1 Com. 484 (2B); 1 Dall. 462.
No other errors were insisted on and the Court unanimously affirmed the judgment.
Note. The cases of Atkins and wife v. Hill, Cowp. 284, Rose and Nancy, his Wife, v. Bowles and Read, Executors of Bowles, 1 H.Bl. 108, were actions for legacies left to the wife after marriage, and in the latter case it was adjudged that she should join.
Blank in manuscript. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487529/ | This Court kept the case under consideration till June 15th; then Chancellor Ridgely, said the sole question which this *415Court has had to consider is whether the respondent, the petitioner below, is entitled to his freedom, and whether it should be adjudged and decreed that he is and shall be free and at liberty, and shall and may enjoy all the benefits and advantages that a free Negro or free mulatto may or can do within this government. It is to be observed that we are not about to decide any question of property; the mere matter to be determined is whether he is entitled to his freedom according to the laws of the state.
The first Act of Assembly which relates to this subject is “An Act for the better regulation of servants and slaves within this government,” 1 Del.Laws 210. The tenth section recites that “whereas it is found by experience, that free Negroes and Mulattoes are idle and slothful, and often prove burthensome to the neighbourhood wherein they live, and are of evil example to slaves; Therefore be it enacted by the authority aforesaid, That if any master or mistress, shall, by will or otherwise, discharge or set free any Mulatto or Negro slave or slaves, above the age of thirty-five years, or decrepid or infirm, he or she, or his or her executors or administrators, at the next respective County Court of Quarter Sessions, shall enter into a recognizance with sufficient sureties, to be taken in the name of the Treasurer of the said County for the time being, in the sum of Thirty Pounds, for each slave so set free, to indemnify the county from any charge they or any of them may be unto the same, in case of such Negro or Mulatto’s being sick, or otherwise being rendered uncapable to support him or herself; and that until such recognizance be given, no such Mulatto or1 Negro shall be deemed free.” That Act was passed the 13th of George II, about the year 1740, or 1741. Afterwards, October 31, 1767, a Supplement was passed with the same preamble as the original Act, with this addition, that “the abovementioned act, for the further and better regulation of servants and slaves, has not been found to answer all the good purposes thereby intended,” therefore it is enacted, “That if any master or mistress shall,, by will or otherwise, discharge or set free any Mulatto or Negro slave or slaves, he or she, or his or her executors or administrators, at the next respective County Court of Quarter Sessions, shall enter into a recognizance with sufficient sureties, to be taken in the name of the Treasurer of the said county for the time being, in the sum of Sixty Pounds for each slave so set free, to indemnify the county from any charge they or any of them may be unto the same, in case of such Negro or Mulatto’s being sick, *416or otherwise rendered incapable to support him or herself; and that until such recognizance be given, no such Negro or Mulatto shall be deemed free.” 1 Del.Laws 435.
Here we perceive why the legislature declared that the former Act had not been found to answer all the good purposes thereby intended, for they exclude all slaves in the last Act of every age, and whether decrepit and infirm, or sound and healthy, from the rights of freedom, unless a recognizance was given in ¿60 to indemnify the county. The county in all probability had been subjected to the maintenance of Negroes and mulattoes who were not sound and were incapable of supporting themselves, and therefore to prevent imposition in future, it was declared that no slave should be set free until the recognizance was given, and more effectually to secure the county, the sum was increased to ¿60 for each slave.
Here it might have been reasonably supposed that the words of these Acts were so explicit that no doubt could have been entertained that the recognizance was an essential requisite to the manumission of a slave. And so perhaps they were considered until some time between the years 1783 and 1787, when a petition was preferred to the Court of Common Pleas in Kent County on behalf of a slave named Teresa or Rose [-] 2 against McGarment or some other person. In that case no recognizance had been given, and yet the court did deem and did adjudge the petitioner to be free. The cause was carried on appeal to the Supreme Court, then composed of William Killen, Chief Justice, and David Finney and John Jones, Associate Justices. It was argued on the part of the petitioner by Mr. Bassett, and for the master by Mr. Tilghman. The Associate Justices overruled the Chief Justice, and the Negro was finally adjudged to be free. The success of this petitioner produced many other cases of the kind, and many Negroes, the descendants of the original petitioner, were adjudged to be free without any recognizance, on the precedent established in the first case. These decisions were supposed to be warranted by the decisions made in England on the Statutes of Elizabeth to restrain ecclesiastical corporations from letting longer leases than for three lives or twenty-one years, but they were not acquiesced in with satisfaction; it was known that Mr. Killen, whose judgment was very sound, dissented, and the probability was that contrary decisions might thereafter be made.
To settle the law and to remove all doubts, as I have hitherto always supposed, the legislature took the subject into consid*417eration, and on February 3, 1787, 2 Del.Laws 885, with a view to the very question before this Court, in section 3, declared that “whereas some doubts have arose whether a Negro or Mulatto slave, heretofore manumitted by his master or mistress, by writing, last will, or otherwise, without having entered into the security to indemnify the county, required by the several laws of this state, could be entitled to his or her freedom; to remove all [such] doubts, Be it enacted, That where any master or mistress may have heretofore manumitted and set free any Negro or Mulatto slave, that is now above the age of twenty-one years, and who at the time of such manumission was not above the age of thirty-five years, and who was healthy and no ways decrepit, or rendered incapable of getting his or her living, without having given the security to indemnify the county, required by the laws of this state, shall and is hereby declared to be absolutely free, in as full and ample a manner to all intents and purposes, as if the security aforesaid, required by the laws aforesaid, had been given.” And in the sixth section of the same Act, page 885, “That any master or mistress, after the passing of this act, may by any last will in writing, or otherwise, manumit and set at liberty, any Negro or Mulatto slave above the age of eighteen years, and under the age of thirty-five years, [who is healthy,] and no ways decrepit, or rendered incapable of getting his or her living, without giving the security required by any of the laws of this state; any law, usage, or custom to the contrary in any wise notwithstanding.”
Now, according to the declaratory section of this Act, all slaves who had been manumitted and were then, at the date of the law, under the age of twenty-one years, and all who at the time of their manumission were above the age of thirty-five years, were still to be deemed slaves unless the security required by the laws, had been given. This Act, if it could have any effect in declaring the law, as it was intended, and is expressed, reversed the former decision, or gave a contrary exposition of the former Acts with respect to slaves who were under twenty-one, at its date, or above thirty-five at the time of their manumission. That second section was passed to remove all doubts, and it would be most extraordinary, if it should leave the question, with respect to slaves under or above the periods limited in it, a matter of uncertainty. That declaratory section, though, has no particular application to this petitioner, for he was not born at the date of the law, and is not either included or excluded by it, but it has great weight in showing the intention of the legislature. It secured the freedom of such only as then, or at the date of their manumissions, were not likely to become *418burdensome to the county. It kept in view the principle of the former Acts, an exemption of the county from the burden of their maintenance; and the sixth section, with respect to future manumissions not only left the former Acts in full force, but entirely reenacted them, except in the cases therein excepted. It was made, with a view to regulating the subject, to establish the law upon a point that had been doubted, and to remove those doubts.
How, though, can any doubts be removed if the law is still uncertain? Why did the legislature declare that all slaves who had been manumitted under twenty-one, and no recognizance given, but who at the date of the law were twenty-one, should be absolutely free, if they were so by the operation of law without this Act? Or why did the legislature enact that after the passing of that Act all slaves above the age of eighteen, and under the age of thirty-five, who are healthy, and not decrepit nor incapable of getting their living, might be manumitted without the security required by the laws of this state being given, if the law were so before? It is very evident why they so enacted. It was to settle the law, to remove doubts, and permanently to regulate all future cases.
Another Act was passed concerning negro and mulatto slaves on January 18, 1797, 2 Del.Laws 1321. The principal object of that law was to regulate the mode of manumitting slaves; and after the necessary provisions on that subject, in the sixth section it is enacted “That the security required by the laws of this state to be given by any master or mistress on liberating or manumitting his or her slave, shall be given according to the true intent and meaning of such laws; any thing herein contained to the contrary notwithstanding.”
Here are four Acts, all upon the same subject, all requiring security to be given, and yet this petitioner claims his freedom in the face of all the provisions in these Acts!
Alexánder George was born about December 21, 1787, at any rate after February 3, 1787. His master, Thomas Rothwell, never manumitted him in writing, nor by any express act, in any other manner. If George ever became free, it was by some implied manumission, for there never was any act done by Roth-well, or by Wilson, the appellant, the administrator of Roth-well, which was intended as a deed or act of manumission.
As to implied manumission. According to the Act of February 3,1787, a slave under the age of eighteen and above the age of thirty-five, cannot be manumitted unless security be given to indemnify the county; but as no security was ever given, there can *419be no implied manumission, for before Alexander George arrived to the age of eighteen years, an Act was passed, to wit, on January 18, 1797, which requires all manumissions to be in writing signed and sealed by the master or mistress or else they shall be void. According to that Act a slave can be manumitted in one of four ways only: first, by a last will; second, by a writing signed and sealed; third, by an importation of a slave contrary to law; and fourth, by an exportation, or sale with an intention for exportation, contrary to law. If the slave be manumitted by last will, or by writing, under eighteen or above thirty-five years of age, or if he be within those ages, and be unhealthy or decrepit, or incapable of getting his living, the security required by law must be given, or the manumission will not avail. Therefore it is that nothing done or said, or omitted to be done, either by Rothwell or Wilson his representative can operate as a manumission.
There is no ground in supposing that any Act of a master can be good against himself, and therefore operate as a manumission, when the security required by law is not given. Those Acts of Assembly cannot be compared to the statutes which restrain ecclesiastical leases. By the common law ecclesiastical corporations might make as long leases as they thought proper; the mischief was that they let long and unreasonable leases, to the impoverishment of their successors; the remedy applied by the Statute was the making void all leases by ecclesiastical bodies for longer terms than three lives, or twenty-one years. Now, in the construction of this Statute it is held that leases, though for a longer term, if made by a bishop, are not void during the bishop’s life; or if made by a dean and chapter, they are not void during the life of the dean; for the Act was made for the benefit and protection of the successor. The mischief is therefore sufficiently suppressed by vacating them after the death of the grantors; but the leases during their lives, being not within the mischief, are not within the remedy. 1 Bl.Comm. 87.
And so with respect to mortgage deeds. No such deed is good, or sufficient to pass any freehold inheritance, or to grant any estate therein for life or years, unless such deed be acknowledged, or proved and recorded in the county where the lands or tenements lie, within twelve months after the date thereof. 1 Del.Laws 222. And yet in Pennsylvania where their Act of Assembly requires mortgage deeds to be recorded in six months, it was adjudged that a mortgage deed, though not recorded within six months, is good against the mortgagor; because the intent and principal reason of the law is “to prevent honest purchasers, or mortgagees, of real estates, from being deceived by prior secret *420conveyances, or incumbrances.” 1 Dall. 430. But it did not fall within the mischief, and consequently it was not within the remedy, or reason and spirit of the law, to make such deeds void as to the mortgagor; for although unrecorded for more than the limited period, he could not thereby be injured, for he had full notice of its existence, and could not possibly be affected by its being unrecorded. The law was made for the protection of subsequent purchasers and creditors, and not for the benefit of the mortgagor. The reason of the decisions on ecclesiastical leases were strictly applicable to this case of unrecorded mortgage; and in both instances the courts conformed to the spirit and intention of the law-makers.
Our laws to restrain masters from manumitting slaves without giving security to indemnify the county were made for the good or benefit of the government. They are laws of public police or economy. They were not made for the benefit or advantage of masters, nor for the protection or security of slaves. They do not, so far as they relate to the security to indemnify the county, regulate or concern any private interest, or give, or take away or secure, or protect, any private, existing vested right, and were not designed for any such purpose. They merely affect the government, and declare the terms upon which a master may emancipate a slave and make him a free man. And in this there is nothing hard or unreasonable, for if the master means fairly to extend the blessing of freedom to his slave he will not hesitate about the terms. There is no reason that a master who has re-. ceived the benefit of the labor of a healthy vigorous slave should cast him in his old age on the public charity.
Before our Acts requiring security to indemnify the county were made, a master might liberate a slave incapable of supporting himself, without obliging himself to maintain him; the mischief was that slaves were so liberated as to be burdensome to their neighborhood. The remedy applied is security to indemnify the county. Now if a slave can be manumitted (except in the cases excepted) without such security, the mischief is not suppressed, and the remedy is not advanced; but it is the duty of judges to construe Acts to suppress the mischief and advance the remedy; and therefore without the security this Negro cannot be adjudged free. There can be no judgment against the master in favor of the slave and yet leaving the master responsible for his maintenance in case of his incapacity to maintain himself. The Act of Assembly has prescribed the terms of the judgment. If any judgment is rendered for the slave, it must be that he is and shall be free and at liberty, and shall and may enjoy all the benefits and advantages that a free Negro or free *421mulatto may or can do within this government. If after such judgment is rendered he is a free man to all intents and purposes, the master is not bound for his support, and consequently in case of incapacity the public would be burdened with him.
If a slave under eighteen and above thirty-five can be adjudged free in any case without the security, he may in every case, and consequently the law becomes void. This, though, is not the sound construction of the law. If the manumission is good against the master, it is good against the state or county, and one could no more avoid it than another; but it is void as to both. The construction of our Acts is analogous to the construction of the [Statute] 17 Geo. III, c. 26, which declares that all deeds whereby annuities are granted shall be null and void to all intents and purposes, unless a proper memorial be registered according to the method prescribed by the Act. This Statute was made to suppress a public evil, the taking advantage of distressed men; and strong as the words are that such deeds shall be null and void to all intents and purposes, they are not more so than the words of our Act, that until such recognizance be given, no such Negro or mulatto shall be deemed free. 2 Term 603. So by Statute, 9 Anne, c. 14, all notes where the whole or any part of the consideration is money knowingly lent for gaming, shall be void to all intents and purposes whatsoever. And in a case where a note for money lent to one knowingly to game with was indorsed over for a valuable consideration, yet it was adjudged to be void, 2 Str. 1155. So by Statute, 12 Anne, c. 16, it is enacted that no person shall upon any contract take for the loan of any money, wares, etc. above the value of £5 for the forbearance of £100 for one year; and all bonds and assurances for payment of money, whereon shall be reserved or taken interest above £5 per centum shall be void. Although this Statute has often been attempted to be evaded, yet the courts have uniformly supported its spirit; for however disguised the agree-, ment might be, if in fact it was usurious it has been held to be void.
All these Acts, as well as our Act about security to indemnify the county, were made on public principles to regulate matters of public concernment, and they never can have effect unless they operate upon the very cases intended to be controlled. There can be no medium; the law must have its full operation, or it can have none, for let the Negro be once adjudged to be free, he, in case of inability to support himself, is unavoidably thrown upon the public, without any possible redress against the master.
I have little to say with respect to the supposed gift made by Rothwell of this boy to his parents. They were then both *422slaves, and a slave cannot acquire or hold property in this state. They cannot sue or be sued, and without the permission of the master no person can deal with them. The condition of a slave is more restricted with us than villeinage was in England; and there all acquisitions of property real and personal made by a villein, in whatsoever way arising, with no other exception than what is allowed of to prevent prejudice to third persons, belonged to his lord, because an incapacity to acquire anything for his own benefit was one of the harsh characteristics of the villein’s condition. Co.Litt. 117a, note 1. If this gift amounted to anything, it certainly could not operate as a manumission of Alexander George; neither could it operate as a manumission of the mother, unless she was older than eighteen years and not exceeding thirty-five, and no ways decrepit or rendered incapable of getting her living, for in both cases security to indemnify the county would be necessary, according to circumstances. However the freedom of the mother is not the inquiry, because no question is made about it, and no facts relating to her are before the court; and all that I have to observe touching the effect of this supposed gift as it related to Alexander George is that it was not a manumission of him. For if it divested Thomas Rothwell of any property, it would remain to be considered in whom it vested the right of the boy; it could not be a manumission, for he was then but three years of age, and no security was given.
As to the paying wages by Wilson to Alexander George, if this fact were ever so clearly made out, it would not amount to a manumission, because according to the “Act concerning Negro and Mulatto slaves,” passed January 18,1797, 2 Del.Laws 1321 [s. 1], it is declared that “no Negro or Mulatto slave shall be set free and at liberty, nor discharged from the service of his or her master or mistress, or masters or mistresses, by the adjudication or decree of any court whatsoever, in virtue or in consequence of any verbal contract or agreement hereafter made by such master or mistress, or masters or mistresses; but that every such contract and agreement shall be null and void, and shall not be binding or obligatory upon such master or mistress, or masters or mistresses.” By this Act a slave cannot be adjudged free in virtue of any verbal contract. The words are certain, and the intention of the legislature is equally clear and certain. The legislature intended to abolish all verbal contracts for the manumission of slaves, and, as much as could, all suits arising out of any verbal contract. It would be extraordinary that a direct, positive, valid manumission, made in the presence of witnesses, should be null and void; and yet that an indifferent transaction *423happening without a view to, or in relation to, a manumission should avail, and thus defeat the Act of Assembly. The very spirit and intention of the Act was to confine the manumission of slaves, in every instance, to a deed or last will, except upon an importation, or exportation, or selling with an intention of exportation, contrary to law; and it would be an evasion of the law to allow that to be done indirectly which could not be directly done. And especially to deem that a manumission which was not intended to be such by Wilson.
As to the binding to Harman, and the knowledge which Roth-well and Wilson had of the place of residence of Alexander, and that he acted as a free man, nothing of the sort can avail against the express provisions of the law. The security and the manumission in writing, in the cases before mentioned, are indispensable; and although the county might never incur any expense in the support of this petitioner, yet if the law were to be evaded by setting up a claim against a master and considering it as a case depending altogether upon the interest of the master, and upon his acts, without any regard to the policy of the law, and the security intended to be provided for the county, all the unhealthy and decrepit slaves, and all such as are incapable of getting their living might be immediately thrown upon the public and made a county charge.
Inasmuch, then, as no security was given by Thomas Rothwell or by his representative, according to the terms of the Acts of Assembly, before Alexander George arrived to the age of eighteen years, to indemnify the county, and as George was not manumitted in writing signed and sealed by his master, I think that he is not entitled to his freedom, and that the judgment of the Court of Common Pleas should be reversed.
Johns, Chief Justice of the Supreme Court, Paynter, Justice of the Supreme Court, and Cooper, Justice of the Court of Common Pleas concurred. Davis, Justice of the Supreme Court, dissentients.
Per Curiam.
Judgment reversed.
At this point, Ridgely’s Notebook, II, 113, the account of this case is interrupted ; it is resumed at 149.
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https://www.courtlistener.com/api/rest/v3/opinions/8487530/ | The Chancellor.
This is a special warrant requiring the surveyor to survey and locate vacant land on which the grantor, Charles Rawlins, was seated and had made an improvement. The survey was made on other land, and was not made according to the authority given to the surveyor; and consequently the survey returned is void. This warrant, has been treated as a general warrant, or the survey is designed to give it that effect; but the whole of his proceeding and that of the Board of Commissioners is so directly contrary to the provisions of the Act of Assembly that the respondent is not entitled to any benefit from the survey returned.
It is said by the counsel for the respondent that it does not appear that this warrant has been laid on other land than that described in the warrant. The paroi testimony proves that it has been laid on land which John West, the appellant, and those under whom he claims, have had in possession twenty-six years; and consequently it could not be laid on land whereon Charles Rawlins was seated and which he had improved. The true answer, though, to this position of the respondent’s counsel is that it should appear on the face of the return that the warrant was executed according to its command. It was a special power and should have been shown to be executed according to the authority given; and no presumption can be made in favor of its due execution.
But it is said that the appeal comes too late. Let it be remembered that the warrant designating a particular spot of land on which the survey was to be made is dated October 10,1793. The survey and certificate and treasurer’s receipt are all made and dated September 18,1815, nearly twenty-two years after the date of the warrant. Until the return of this survey, West could have no notice of the survey being on land in his possession. The caveat was entered September 8, the date of the survey and certificate, and yet it is said to be too late. The legislature gave an appeal, and if the warrant had or could have given notice of a survey to be made on his land, he might have appealed before; but the warrant being to survey land on which Rawlins had improved and on which he was seated, and not West’s land, the *426sight of the warrant in the Recorder’s office could give him no notice, and he never could appeal till he knew that he was affected by the survey; and that he could not know till September 8, 1815, the time of the survey and date of the certificate of survey. The appeal is in time.
I am of opinion that the judgment of the Board of Commission.ers be reversed, and that it be adjudged by this court that the respondent, Betts, take nothing by the said warrant and survey. Johns, Chief Justice of Supreme Court, Booth, Chief Justice of Court of Common Pleas, Davis and Paynter, Justices of Supreme Court, and Warner and Cooper, Justices of Common Pleas, concurred.
Judgment reversed unanimously. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487533/ | The Chancellor.
In considering this case I shall begin with the third error assigned, which is, that the plaintiff (below) has not in any part of the pleading in said cause assigned and set forth any breach or breaches of the condition of the said writing obligatory.
This is a suit on a testamentary bond made according to the provisions of the Act to compel executors to give security etc., 2 Del.Laws 888. It is enacted that the said bonds may be put in suit in the name of the Delaware State against the obligor or obligors for the use of any creditor or creditors, legatee or legatees, or person or persons who may be interested in the said testator’s estate, etc. This Act has made no further provision in relation to such bonds when put in suit for a legatee. But the Act for establishing Orphans’ Court, 1 Del.Laws 87, s. 12, includes within its description and provision testamentary as well as administration bonds. That Act has prescribed no form of proceeding in prosecuting a suit up to the first judgment. The words are, “And that when any of the said bonds shall be put in suit, and judgment thereupon obtained, the judgment shall remain in the same nature the bonds were, and that no execution issue out *438thereupon, before the party grieved shall by writ of scire facias summon the person or persons, against whom the said judgment is obtained, to appear and shew cause why execution shall not issue upon the said judgment; and if the party grieved shall prove what damages he sustained, and thereupon a verdict be found for him, the Court of Common Pleas (where such suit is) shall award execution for so much as the jury shall there find, with costs, and no more. And the former judgment is hereby declared still to remain cautionary for the satisfaction of such others as shall legally prove themselves damnified, and recover their damages in the manner aforesaid.”
This, it is to be remembered, is a suit to recover a judgment on the penalty in the bond, and not to prove the damages sustained by the person for whose use the bond was sued. The question now occurs whether it is incumbent on the prosecutor of the action to set forth any breach or breaches of the condition of the bond in the pleading. The Acts of Assembly are entirely silent in this matter. It has been urged by the plaintiff in error that it is essential that the plaintiff below should have set forth breaches in the condition of the bond; and to prove this position he cited 3 Saund. 187c note 2, 1 Saund. 103c. Note (the last part of it), 1 Salk. 138 and 1 Esp.N.P. 209. These authorities refer to the Statute, 8 and 9 Will. III, c. 11, s. 8; and the counsel contends that that Statute governs the question. It is thereby enacted that “in all actions [ . . . ] upon any bond or bonds, or on any penal sum, for non-performance of any contract or agreement1 in any indenture, deed, or writing contained, the plaintiff or plaintiffs may assign as many breaches as he or they shall think fit, and 2 the jury, upon trial of such action or actions shall and may assess, not only such damages and costs of suit as have heretofore been usually done in such cases, but also damages for such of said breaches so to be assigned, as the plaintiff upon [the] trial of the issues shall prove to have been broken, and that the like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions.” So far only is it necessary to repeat the Statute. All which relates to the judgment on demurrer, by confession, or nil didt, and to the suggestions of breaches on the roll, and to the judgment remaining as a further security, and to the subsequent proceeding by scire facias, are provided for by the Act of Assembly.
*439It has been contended by the counsel for the defendant in error, the plaintiff below, that the Statute of William applies to bonds with collateral conditions, and to actions of covenant, because, in the first instance, the plaintiff recovers for the nonperformance; but that suits on testamentary and administration bonds are not within the reason and do not come within the provisions of that Statute.
In the case of Collins v. Collins, 2 Burr. 820, which was an action of debt on a bond with a condition to pay the plaintiff an annuity of £10 a year during his life, and likewise to maintain him in meat, drink and lodging, at Crundall End, for and during his life, it was urged that that was not an action brought upon a penalty for nonperformance of an agreement or covenant contained in any indenture, deed or writing; but it was answered and adjudged by the Court that the annuity bond was “an agreement between the parties, and an agreement in writing. The condition of a bond is an agreement in writing, and people have frequently gone into courts of equity upon conditions of bonds as agreements in writing, to have a specific performance of them.” And this has been verified among ourselves by suits in chancery for the specific performance of what we call alienation bonds.
The case in Burrow is still stronger in another respect, and more fully answers the objection made here that by the Statute of William the plaintiff recovered in the first instance for nonperformance, but that here in this suit he can recover judgment for the penalty only, and then must sue out his scire facias to recover his damages. In that case, Collins v. Collins, the defendant pleaded a set-off, to wit, “that only £60 was due to the plaintiff on account of the said annuity, and that the plaintiff owed him more than £60, viz £500.” And it was objected that if the plaintiff should take his judgment upon that Act of Parliament, 8 Geo. II, c. 24, s. 5 (allowing mutual debts to be set off against each other) that it would not be a judgment for the penalty, but a judgment only for the sum due and no more; and that after the matter had once passed in rem judicatam, the plaintiff could not afterwards recover any more upon that annuity bond, whatever might become due by future nonpayments, for that there was no provision that the judgment should stand as a security for future payment, as in the Act of 8 and 9 Will. III, c. 11. But it was answered by the Court that “the judgment is indeed by this Act, 8 Geo. II, directed to be entered for no more than shall appear to be justly due to the plaintiff. But it is clearly within the words and meaning of this Act that the penalty is to remain as a security against future breaches, in this case of a set-off pleaded, as *440much as it would have done upon the Act of 8 and 9 Will. III, c. 11, if payment had been made agreeably to the directions therein contained.” The case of a testamentary bond is stronger than this in Burrow, for by our Act, the first judgment can be rendered for the penalty only, which remains cautionary for all others who shall prove themselves damnified.
Take the Statute and the Act of Assembly together, and it is evident that the course prescribed in the Statute to be followed upon a judgment in demurrer, or by confession, or nil dicit, is substantially the same as in our Act on a judgment for the penalty in the bond. Such judgments, under the Statute, are for the penalty in the bonds, and so is “the first judgment under our Act, and what reason can there be that the pleadings should be different? The Act of Assembly does not restrain or alter the Statute, except in those particular provisions which declare that the first judgment shall be for the penalty only, and which extend such judgments to others who may be concerned or interested in such bonds. Then it seems necessarily to follow, as that Statute has been practised under in this state and is the law of the land, that in all cases to which it applies, it must be followed. In the case of Hanely v. Bun, 5 Term 538, 636, it was adjudged that the Statute of William was compulsory, and that in all cases within the provision of it the plaintiff must assign breaches on the record. The Statute could not, without some legislative provision, meet the cases of the public bonds mentioned in the Act of Assembly, for on a judgment recovered on a bond mentioned in the Statute no person could take any advantage of it but he who recovered it; whereas the public bonds spoken of in our Act of Assembly are declared to be for the use of, and in trust for, the persons interested or concerned in the same, and a judgment recovered by one person may be proceeded on by any other who may be grieved. It therefore became unavoidably necessary to adopt a course of proceeding upon public bonds according to the exigency of the case, varying though from the Statute in such parts only as the Act of Assembly extended the judgment first recovered to all persons concerned, notwithstanding such persons were not parties to the original suit. This, though, produced no difference as to the assignment of breaches on the bond. Notwithstanding the assignment of breaches under the Statute, in the original pleadings and before judgment is rendered in any way, yet other breaches may be afterwards assigned. So, under the Act of Assembly, why should not all the breaches upon which the bond becomes forfeited be assigned? The pleading to recover the first judgment on the bond is totally distinct from the suggestions to be made in the scire facias, and there can be no *441good reason why all the breaches shall not be assigned to show that the penalty has become forfeited.
But, suppose the Statute of William to be out of the question, how is it that on a plea of performance, the plaintiff is not obliged to assign some breach? In the declaration no breach is assigned; and it does not appear how the penalty became forfeited. On the plea of performance no breach is assigned. There is a general replication, that is, that the defendant did not perform the things he alleges he did perform. In the case of Meredith v. Alleyn, 1 Salk. 138, Holt, C. J., says that “In all cases (that of a bond to perform an award 3 excepted) if the defendant pleads a special matter that admits and excuses a nonperformance, the plaintiff need only answer and falsify the special matter alleged, for he that excuses a nonperformance, supposes it, and the plaintiff need not shew that which the defendant has supposed and admitted. But if the defendant pleads a performance of the condition, though it be not well pleaded, the plaintiff in his replication must shew a breach; for he has not a cause of action unless he shew one.” Sergeant Williams, in the note to the case of Hayman v. Gerrard, in 1 Saund. 103c, says that “the true distinction between those cases where it is necessary to assign a breach in the replication, and where not, seems to be taken by Holt, C. J., in the case of Meredith v. Alleyn. In 2 Burr. 944, the case of Tyson v. Carter, M. 8 G. B. R.4 was cited, where Lord Hardwicke laid down the rule of pleading to action of debt upon a bond with special condition to be that, ‘wherever the defendant pleads a performance of the condition, the plaintiff must assign an absolute breach, though this be not necessary when he pleads a collateral matter, as a release.’ ” And the Court agreed to this distinction.
Now on the plea of performance in this case and the general replication, how does it appear that the bond has been forfeited, or that Elizabeth Hudson is concerned? In suits on administration or testamentary bonds, or a plea of performance, the plaintiff must assign breaches according to the Statute of William, and must show his right or title to sue the bond in the declaration or replication, so as to put his title on record and give notice to the defendant of the demand against him. Judgment must be *442for the penalty in the bond, and then any person aggrieved may sue out a scire facias, as specially directed by the Act of Assembly. The title to sue must appear in some part of the pleading,, and we think it should appear in the declaration, otherwise the defendant may be driven to great expense by a stranger.
We will not undertake to reverse the judgment rendered below, because the court there refused to allow the defendant to-read in evidence the record of the granting letters of administration de bonis non, cum testamento annexa of the said testator, Thomas Appleton, to Thomas Appleton after the death of the executrix of the said testator; for there is some difference of opinion in this Court on that point, and we are not prepared to decide this question. Nevertheless I shall say something of my own sentiments on that subject.
The defendant below, the plaintiff in error, offered to prove' that since the death of the executrix of Thomas Appleton, the testator, letters of administration of the goods etc. unadministered by the executrix had been granted, with the will annexed, to another Thomas Appleton; and then the object was to prove that assets were in the hands of this administrator de bonis non. or that he was the proper person to answer this demand of Elizabeth Hudson, said to be a residuary legatee of the testator, Thomas Appleton. It was alleged that there was a balance of the residuary part of the personal estate of the testator remaining in the hands of the deceased executrix. Walker was her surety in the testamentary bond. The question on this part of the case is whether the administrator of the deceased executrix of Thomas Appleton is responsible to the residuary legatee, or to the administrator de bonis non, cum testamento annexa of Thomas Appleton; and consequently whether the administrator de bonisnon, cum testamento annexa, can and ought to recover from the administrator or surety of the executrix this undisposed balance; for if he ought, then he should answer to this residuary legatee' and not the administrator of the executrix or her surety.
It is to be recollected that this alleged balance, which was found on settling the accounts of the executrix to be in her hands, is not and cannot be goods etc. unadministered by her. The executrix collected the goods and chattels and converted them into money, and she collected the debts of the testator. She then became chargeable to creditors and legatees, so far as such goods, etc. thus converted into money were assets to be paid to one or the other. As soon as the goods were converted into money and the debts collected, they were administered. The executrix became a debtor to the legatee, supposing the debts of *443the testator to be all paid, and of course was liable to this legatee, if such she is, for her residuary legacy. And if there were creditors, she was liable to them and might be answerable de bonis propriis; or the creditor might have a remedy on the bond, according to circumstances. The identical money in the hands of the executrix never was the money of the testator; and it was impossible that the executrix should be a debtor to the testator for goods, etc. which had belonged to him and which she received as executrix. The administrator de bonis non is not entitled to take any goods, etc. nor money, nor rights or credits which had not belonged to the testator in his lifetime. Suppose an executrix to sell on credit the goods of her testator; who can recover from the purchaser the debt? Certainly the administrator of the executrix, and not the administrator de bonis non. So the money which went into the hands of the executrix became liable to the payment or were assets for the payment of debts and legacies; and the executrix became answerable to that amount, but not to the administrator de bonis non, for he is not a creditor or legatee of the first testator, and there is no privity between him, the administrator de bonis non, and the executrix. At common law, If an executrix had recovered a judgment for a debt of her testator and died intestate, the administrator de bonis non could not have sued a scire facias upon such judgment. Now, by the Statute, 17, Car. II, c. 8, he may. But that Statute has no application to this question.
Besides, the executrix is bound by her bond to dispose of the residue of the goods etc., which shall be found remaining on the settlement of the account, according to law, and to the true intent and meaning of the last will and testament of the said deceased. This clearly means some person entitled to take by the will. The Act of Assembly, 2 Del.Laws 888, further declares that such bond may be sued for the use of any creditor, legatee, or person interested in the testator’s estate. By the words, person interested in the testator’s estate, I understand any creditor, legatee, or person claiming by or through any creditor or legatee, for to such only is the executor bound by the bond to pay. The administrator de bonis non is not included, but is excluded by the condition of the bond. He certainly cannot take according to the will of the testator.
As at present advised, I think that the administrator de bonis non cannot recover this residuary part of the estate, and that he is not liable to the legatee, and therefore that there was no error in rejecting the testimony offered on this point. At the same time I know that administrators of executors and of administrators often pay to administrators de bonis non money remaining *444in the hands of their testators and intestates. Nay, I recollect a suit commenced by an administrator de bonis non against the executors of a deceased administrator, and a recovery; but there the case was not contested. No practice of the kind can establish the law or alter the law. And I apprehend that all such cases happen from inadvertence, convenience, mistake, or ignorance of the law, and not from any right which an administrator de bonis non has to receive or recover such money.
As to the sixth error, that two writs of copias ad respondendum had not been sued out and returned, etc., it is clear that this provision of the Act of Assembly does not apply to legatees. There is then no error in this.
Per Curiam.
Judgment reversed.
Vandyke, counsel for the plaintiff below, and defendant in error, then remarked that in the case of Guthry, plaintiff in error, v. the State, which was a suit on an administration bond in which the plaintiff did not set out in the declaration his title to sue, neither did he in his replication to the plea of performance allege any breaches, yet this court affirmed that judgment.
The Chancellor
replied. That was a suit by a creditor, and in the assignment of errors and argument of the cause, our attention was called merely to the case of a creditor, and to the prerequisites of the Act of Assembly, that is to say, to the suing out the writs of copias ad respondendum and returns thereon. The plaintiff in error did not assign any error in not setting forth any breach of the condition of the bond. We were not required to consider the point now under discussion. But that opinion entirely corresponds with the opinion of the Court in this case. We then said, “To entitle the plaintiff below to prosecute a suit on this bond (administration bond), if he be a creditor of the deceased he must show that he has done everything required by the Act of him to give him this right. It is to be observed that the bond is made to the State; that no person has any interest in the bond but under certain circumstances, and that if such person wishes to recover any right secured by the bond, he must comply with the terms required by the Act and state the same in his declaration to entitle him to use or apply the bond to his benefit.” And again, “It was incumbent on the plaintiff below to show in his declaration that he was fully entitled to prosecute a suit on the administration bond.” It is true we affirmed the judgment, having in view entirely a suit of the administration bond by a creditor, but in so special a manner as to give full effect to . the opinion there delivered, and equally decisive with the reversal *445of this judgment. The fault was that we did not then go far enough in terms, and did not do directly what we have done here; that is, reverse the judgment absolutely. We went though as far as the assignment of errors and case made out would warrant us; and we are sure that the two opinions are perfectly consistent. .
Statute reads “covenants or agreements.”
At this point, Ridgely’s Notebook II, 141, the account of this case is interrupted ; it is resumed at 160.
Footnote by Ridgely, “The reason of the case of an award is particular. It is because an award may be good in one part and void in another, and therefore it is incumbent upon the plaintiffs to show a breach thereof, that the court may judge whether he has well conceived his action or not; for perhaps he has brought his action for a breach of that part of the award which is void, and consequently has no cause of action. See the case.”
That is, Michaelmas Term, eighth year of George II, King’s Bench (Banca Regis). There is an imperfect note of the case in 2 Str. 94. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487535/ | Ridgely, Chancellor, and Cooper,
Justice of Court of Common Pleas, who was not a Judge when this case was there decided, were for reversing the judgment.. Davis and Paynter, Justices of the Supreme Court, were for affirming the judgment. The Court being equally divided, judgment affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487536/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487538/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487539/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487540/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494108/ | MEMORANDUM OPINION
MARK W. VAUGHN, Chief Bankruptcy Judge.
The Court has before it the Defendants’ motion to dismiss the remaining counts of the Plaintiffs second amended complaint and the Plaintiffs objection thereto and the Plaintiffs motion to amend the complaint and the Defendants’ objection thereto. The Court has heard the arguments of counsel on both matters and has taken them under advisement.
Jurisdiction
This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and the “Standing Order of Referral of Title 11 Proceedings to the United States Bankruptcy Court for the District of New Hampshire,” dated January 18, 1994 (DiClerico, C.J.). This is a core proceeding in accordance with 28 U.S.C. § 157(b).
Background
A brief recital of the procedural history of this adversary proceeding is in order. The original complaint was brought in May 2004 and the second amended complaint filed in July 2004. At the time the complaint was brought, the case was in Chapter 11, and no creditors’ committee had been appointed. The complaint alleges causes of action on behalf of creditors, which the Court allowed to proceed since it felt at the time that the creditors’ interests would not be protected by the debtor in possession. On August 26, 2005, the case was converted to Chapter 7, and the trustee was appointed. On March 8 and 9, 2006, the Court conducted two days of trial but did not complete the trial, which was expected to last another two days. The trustee did not object to the trial going forward at that time.
Subsequent to the first two days of trial, the trustee settled all claims that the bankruptcy estate had against the Defendant, ASR Acquisition Corp. The Court approved that settlement by order dated May 17, 2006, and denied a motion to reconsider that order on May 24, 2006. In its May 17, 2006, opinion, the Court stated:
As representative of the estate, having stepped into the Debtor’s shoes, the Trustee alone may assert the causes of action against ASR in the ASR Adversary. See In re Gaudette, 241 B.R. 491, 498 (Bankr.D.N.H.1999). Correspondingly, if a “cause of action belongs solely to the creditors, the trustee has no standing to assert it.” Id. In the Wolfe Adversary, Wolfe claims, among other claims, that the Debtor and ASR con*194spired and colluded in misrepresenting the debts owed ASR by Desmond. Following the reasoning of our Gaudette opinion, to the extent that Wolfe alleges claims that could not be brought by the Trustee, those claims survive in Wolfe. The settlement does not extinguish those claims because the Trustee does not have standing to assert those claims. See In re Gaudette, 241 B.R. at 498-501 (discussing trustee standing and the doctrine of in pari delicto). However, the settlement does release any and all claims against ASR that the Debtor or the estate could assert, as those claims belong to the Trustee upon conversion to Chapter 7.
Desmond v. ASR Acquisition Corp. (In re Desmond), 2006 BNH 020 (Bankr.D.N.H.2006). On May 26, 2006, the Defendants brought their motion to dismiss asserting that Counts III and IV should be dismissed as they were actions that could be brought by the trustee. As to Count I, to the extent it alleged a conspiracy, it did so on the narrow allegations that the conspiracy only damaged the Plaintiff.
While that motion was pending, the Plaintiff brought its motion to amend the complaint, in which Count I and Count II of the amended complaint would contain a count of civil conspiracy and equitable subordination on behalf of the Plaintiff and all creditors. In paragraphs 30 to 35 of the motion to amend, the Plaintiff seeks to prosecute this adversary as a class action on behalf of all creditors. The motion to amend was filed on September 13, 2006, with a continuation of the trial scheduled for October 26 and 27, 2006. The Court held a hearing on the motion to amend on October 6, 2006, and took the matter under advisement.
Discussion
The Court will first discuss the motion to dismiss Counts III and IV of the second amended complaint. Count III alleges that the claims of the Defendants are unenforceable under state and federal law. Count IV alleges unjust enrichment and fraudulent transfer. Both Counts III and IV are claims that could have been brought by the Chapter 7 trustee since they are claims properly belonging to the bankruptcy estate. Since the Court approved the settlement between the trustee and the Defendants of all claims held by the bankruptcy estate, Counts III and IV are hereby dismissed.
Apparently in response to the Court’s order approving the trustee’s settlement with Defendant ASR Acquisition Coi-p., the Plaintiff has moved to once again amend the complaint after two days of trial and almost four months after this Court approved the settlement and the Defendants filed their motion to dismiss. As indicated above, Counts I and II of the proposed amended complaint allege a civil conspiracy and equitable subordination claim on behalf of the Plaintiff and all creditors. The Plaintiff supports his right to amend on the ground that these are counts that cannot be brought by the trustee and, thus, he should be allowed to pursue them on behalf of creditors. See In re Gaudette, 241 B.R. 491, 498 (Bankr.D.N.H.1999).
While the Court recognizes, under Rule 15 of the Federal Rules of Civil Procedure, made applicable to this adversary by Rule 7015 of the Federal Rules of Bankruptcy Procedure, an amendment should be freely given when justice so requires, this Court believes that this is not such a case for the following reasons.
First, amendments are not to be allowed when they are futile or when an adversary like the present one that has been pending for over two years is not supported by “substantial and convincing *195evidence.” Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir.1994) (quoting Towes-Matos v. St. Lawrence Garment Co., Inc., 901 F.2d 1144, 1146 (1st Cir.1990)).
The motion to amend is couched in general allegations of conspiracy and wrongdoing between the Defendants herein and the Debtor, but there are no specifics as to damages to any creditors other than to the Plaintiff. Likewise, the motion to amend does not point to sufficient evidence in the record to support a theory of conspiracy or equitable subordination to the detriment of all creditors. There is no substantial and convincing evidence cited to support these new allegations. More importantly, the Court believes, after hearing two days of trial in this adversary and after being involved in numerous other hearings relating to this case for a period of almost three years, that the facts do not exist to support a theory of conspiracy or equitable subordination to the detriment of all creditors. In other words, to allow the amended complaint would be an exercise in futility.
Based on the above, the Court denies the motion to amend. Having denied the motion to amend, the Court does not have to reach the issue of whether the Plaintiff represents a class for purposes of litigation.
This leaves the Court with Count I of the original complaint. The basic allegations of Count I are that the Debtor and the Defendants herein conspired to have the Plaintiff release a mortgage, which he held on assets of the Debtor, to the detriment of the Plaintiff and that the Defendants’ claims should be subordinated to those of the Plaintiff. At this point, this is a dispute between non-debtor entities that could be litigated in a court other than a bankruptcy court. For this reason, pursuant to 28 U.S.C. § 1334(c)(1), the Court abstains from hearing any further hearings relative to Count I of the adversary complaint.
Conclusion
The Defendants’ motion to dismiss is granted, and Counts III and IV of the second amended complaint are thereby dismissed. The Court abstains from considering Count I. The Plaintiffs motion to amend his complaint is denied. The trial scheduled for October 26 and 27, 2006, is cancelled. This opinion constitutes the Court’s findings and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. The Court will issue a separate final judgment consistent with this opinion. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494109/ | Opinion
STEPHEN RASLAVICH, Bankruptcy Judge.
Introduction.
The Plaintiffs filed in this Court a fifteen count complaint against the debtor corporations, related entities, and their principals. The Defendants have filed a motion to withdraw the reference of this adversary proceeding from the Bankruptcy to District Court. The District Court has remanded the motion to the Bankruptcy Court with a limited instruction: this Court must determine to what extent the Complaint raises core versus non-core matters.1 Upon receipt of the remand order, the parties contacted this Court to request the opportunity to brief the issues. That request was allowed, the parties submitted briefs, and the matter was taken under advisement.2 Background
These claims had been originally brought by the creditor FL Receivables (FL) in the District Court. There, the Defendants filed a motion to dismiss two of the counts for failure to state a claim. That motion would be granted and as discovery was about to proceed on the remaining claims, three of the corporate defendants — United Management, Jamuna Real Estate, and Bagga Enterprises — filed *328for bankruptcy under Chapter 7. The two Trustees assigned to handle the cases (Messrs. Krasny and Seitz)3 joined with FL to file the same claims in this Court.4 The Defendants filed a motion in the District Court requesting that the reference be withdrawn. That prompted the District Court to remand the case to this Court to determine which of the counts are core and which are non-core.
Core, Nonr-Core Proceedings and Bankruptcy Court Jurisdiction
The District Court’s reference to core versus non-core matters necessarily implicates the jurisdictional parameters of the Bankruptcy Court.5 A term of art, “core” in this context derives from the Supreme Court’s ruling in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). There, the High Court held unconstitutional the jurisdictional grants of the Bankruptcy Act of 1978. Specifically, it struck down the provision which authorized Article I bankruptcy courts to hear certain matters that eonstitutionally could only be heard by courts whose judges are protected by the safeguards in Article III. Id. at 84,102 S.Ct. at 2878 (“bankruptcy courts do not constitutionally have jurisdiction over claims for breach of contract and misrepresentation, [because they] involve a right created by state law, a right independent and antecedent to the reorganization petition that conferred jurisdiction upon the Bankruptcy Court”) (emphasis in original). That ruling prompted Congress to pass the Bankruptcy Amendments and Federal Judgeship Act of 1984. Under the 1984 Amendments, the
[bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title
28 U.S.C. § 157(b) (emphasis added).6 A proceeding is classified as “core” under 28 *329U.S.C. § 157 “if it invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case.” In re Marcus Hook Development Park., Inc., 943 F.2d 261, 267 (3d Cir.1991) (quoting Beard v. Braunstein, 914 F.2d 434, 444 (3d Cir.1990)). Core proceedings represent those disputes so intertwined with the bankruptcy process that Congress has the power under Article I of the Constitution to direct a non-tenured judicial officer (i.e., bankruptcy judge) to render a final determination of their merits. See 1 Norton Bankruptcy Law and Practice 2d, § 4.75 (1999) (“The word ‘core’ was a shorthand word employed to signify issues and actions that traditionally formed part of the functions performed under federal bankruptcy law”).
Where a matter does not qualify as “core” but has some meaningful nexus with the bankruptcy case, it may nevertheless be heard by the Bankruptcy Court on a preliminary basis:
A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected.
28 U.S.C. § 157(c)(1) (emphasis added).7 The Third Circuit has defined a “non-core” yet “otherwise related” proceeding as one whose:
“outcome ... could conceivably have any effect on the estate being administered in bankruptcy.” Pacor v. Higgins, 743 F.2d 984, 994 (3d Cir.1984) (emphasis omitted); see In re Guild, 72 F.3d at 1180-81. “[T]he proceeding need not necessarily be against the debtor or against the debtor’s property.” In re Guild, 72 F.3d at 1180-81. “‘A key word in [this test] is conceivable. Certainty, or even likelihood, is not a requirement. Bankruptcy jurisdiction will exist so long as it is possible that a proceeding may impact on the debtor’s rights, liabilities, options, or freedom of action or the handling and administration of the bankrupt estate.’ ” Id. at 1181 (quoting In re Marcus Hook, 943 F.2d at 264) (emphasis omitted).
Halper v. Halper, 164 F.3d 830, 837 (3d Cir.1999)(footnote omitted). A leading commentator opines:
In light of the Marathon case, the legislative history surrounding the 1984 jurisdictional provisions and the posH984 case law, it seems clear that civil pro*330ceedings encompassed by section 1334(b)’s “related proceedings” are those whose outcome could conceivably have an effect on the bankruptcy estate and that (1) involve causes of action owned by the debtor that became property of a title 11 estate under section 541 (as distinguished from postpetition causes of action, i.e., those that come into existence during the pendency of the bankruptcy case), or (2) are suits between third parties that “in the absence of bankruptcy, could have been brought in a district court or a state court.”
1 Collier on Bankruptcy ¶ 3.01[4][c][ii] (Matthew Bender 15th Ed. revised). This matters for present purposes inasmuch as the parties agree that three of the fifteen counts in the Complaint do not raise core matters, but disagree as to whether all three are “otherwise related” to the bankruptcies. The Third Circuit has explained that a bankruptcy court may neither hear nor determine matters which are both noncore and un related. See Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984) overruled on other grounds by Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995); see also Torkelsen v. Maggio (In re Guild and Gallery Plus, Inc.), 72 F.3d 1171, 1181 (3d Cir.1996) (holding that third party’s claim against trustee for failing to account for non-estate property was neither core nor related proceeding). The Court now turns to each of the fifteen counts to determine which raise “core” matters. See Halper, supra, 164 F.3d at 837 (explaining that where Court is confronted with disparate causes of actions in determining whether core matters raised, analysis must proceed on a claim-by-claim basis)8
Counts I and II — RICO
Counts I and II allege violations of the Racketeer Influenced and Corrupt Organizations Act of 19849 (RICO). The parties concur that these claims are non-core, although they are silent as to whether the claims are related. See Plaintiffs Brief, 5; Defendants’ Brief, 6,7. In any event, the question is a legal one which means that the Court is not bound by what the parties agree on and must make the determination on its own. Mintze v. American General Financial Services, Inc., 434 F.3d 222, 228 (3d Cir.2006) citing Halper, 164 F.3d at 836-37.
While there is no controlling Third Circuit law on this issue, the Seventh Circuit has observed that the weight of authority holds that a RICO claim is a non-core, related proceeding. See Barnett v. Stern, 909 F.2d 973, 979-80 (7th Cir.1990) (holding that RICO claims against debtor individual and debtors’ son were non-core, explaining majority rule and citing cases). In this jurisdiction, the two decisions on point follow that majority rule. See In re Schlein, 188 B.R. 13, 14 (E.D.Pa.1995) (granting withdrawal of reference of RICO claims against family members); see also In re Humphreys Pest Control Co., Inc., 35 B.R. 712, 714 (Bankr.E.D.Pa.1984) (on creditors’ motion for relief from automatic stay to proceed with district court action alleging, inter alia, RICO claims, bankruptcy court noted that, under the Emergency Rule [the precursor of the current jurisdictional statute enacted in response to Marathon], these claims against the officers and agents of the debtor’s eorpora*331tion would be “related proceedings”). This Court will be guided by that authority.
In this case, the Plaintiffs have alleged RICO violations against the individual defendants. Complaint, ¶¶ 160-186. A successful outcome of either RICO count would stand to benefit these bankruptcy estate. For that reason, the Court finds that Counts I and II raise non-core, related claims.
Counts III, X and XV — Piercing the Corporate Veil
These three counts are premised on an alter ego theory. See Crimmins v. Arco Chemical Company, 1999 WL 199750 * 5 (E.D.Pa.1999) (noting that purpose of alter ego doctrine is to prevent individuals who have acted fraudulently or unjustly from protecting themselves from liability by using the corporate form) The remedy for such offense is to disregard the corporate entity. See Village at Camelback Properly Owners Association Inc. v. Carr, 371 Pa.Super. 452, 460-61, 538 A.2d 528, 532-33 (1988) (“Piercing the corporate veil is a means of assessing liability for the acts of the corporation against the equity holders of the corporation.”)
It is here that the parties register their first disagreement. Despite what is alleged in the Complaint,10 Plaintiffs now maintain that Counts III and X are core and that Count XV is neither core nor non-core.11 See Plaintiffs’ Brief, 6, 9-10. Plaintiffs argue that what is sought here is turnover of diverted funds to the Debtor’s estates. Id. 5, 9. That, they conclude, brings the claims within the specific example of “core” matters in § 157(b)(2). Id. Defendants argue that case law is to the contrary. Claims to pierce the corporate veil are based in common law. Defendants’ Brief, 8.
The Third Circuit has observed that “actions to pierce the corporate veil, or alter ego action against the debtor corporation, are often considered non-core, ‘related to’ proceedings.” In re Phar-Mor, Inc., 22 F.3d 1228, 1239 (3d Cir.1994) Here, the Plaintiffs alleged that the individual defendants abused the corporate form of the debtor corporations to defraud its creditors. See Complaint ¶¶ 187-202, 247-257, 273-74. The Court finds that while these claims are not “core” matters, they have the potential to affect this bankruptcy estate. Therefore, Counts III, X and XV are non-core, related matters.
Count IV — Fraudulent Transfer
Both sides maintain that this count raises a “core” claim. Among the illustrative examples of core proceedings in § 157(b)(2) are fraudulent transfers. See 28 U.S.C § 157(b)(2)(H). In substance, Count IV alleges a classic case of both actual and constructive fraud. It is alleged that the Baggas intentionally siphoned off money from the debtor for their own benefit and to the detriment of creditors. See 11 U.S.C. § 548(a)(1)(A); Complaint ¶ 206. Alternatively, it is alleged that this was done at a time when the Debtors were insolvent and, in exchange for which, the Debtors did not *332receive reasonably equivalent value. See 11 U.S.C. § 548(a)(1)(B); Complaint ¶ 207. The Court thus finds the parties to be correct in classifying this count as a core proceeding.
Count V — Conversion
Plaintiffs argue that the conversion count raises a core claim because it is “in effect,” a fraudulent transfer claim. Plaintiffs’ Brief, 6. In arguing that the claim is non-core, Defendants liken it to an alter-ego cause of action: both are based on state common law, arose prepetition, and would exist independently of bankruptcy. Defendants’ Brief, 9.
The Court takes up the Plaintiffs’ premise first; to wit, that because the conversion claim is similar to the fraudulent transfer claim, it, too, should be deemed core. Similarities between a core claim and a non-core claim do not create bankruptcy court jurisdiction over the latter claim. Cf. In re Kamine/Besicorp Allegany, LP, 214 B.R. 953, 965 (Bankr.D.N.J.1997) (explaining that parties may not manufacture core jurisdiction by their actions). To reiterate, the test for what is a core proceeding is whether the claim invokes a substantive right provided under title 11 or arises only in the context of bankruptcy. Halper, 164 F.3d at 836. The conversion claim does neither. This would explain, then, why the Plaintiffs adduce no authority — statutory or decisional — for this proposition.12 Indeed, the weight of authority is in Defendants’ favor. See In re Windsor Comm. Grp., Inc., 79 B.R. 210, 211 (E.D.Pa.1987)(referencing remanded opinion wherein conversion claim deemed non-core); In re Naturally Beautiful Nails, Inc., 252 B.R. 574, 576 (Bankr.M.D.Fla.2000) (same); In re Haugen, 120 B.R. 124, 126 (D.N.D.1990) (same); In re CIS Corp., 172 B.R. 748, 758 (S.D.N.Y.1994) (“Claims asserting the unlawful conversion of property unquestionably arise under state law and are considered non-core proceedings.”); Meadowlands Comm. v. Banker’s Trust Co., 79 B.R. 198, 200 (D.N.J.1987) (conversion action brought by debtor was non-core); In re Reda, Inc., 60 B.R. 178, 181 (Bankr.N.D.Ill.1986) (same); see also Van Dorn Retail Mgmt., Inc. v. Sovran Bank/DC National, 1991 WL 222061 *4 n. 2 (D.D.C.) (noting in dictum that conversion claims are generally recognized as non-core). Accordingly, the Court finds that the conversion claim is non-core.
That, however, does not end the matter. The corollary issue raised by this ruling is whether this non-core matter is “related” or not. Curiously, Defendants never address that issue. In any event, the Court observes that the count is brought by all Plaintiffs against Mr. Bagga. If prosecuted successfully, this claim could positively affect the bankruptcy estate. For that reason, the Court finds that the conversion claim is a “related” non-core claim.
Counts VI, VII and VIII — Turnover
These three counts are brought each by one of three Trustees against all of the Defendants.13 Each count alleges *333that certain individual defendants -wrongfully transferred money of the respective corporate Debtor to the individual defendants. Section 542 provides, in pertinent part, that “an entity ... in possession, custody or control, during the case of property that the trustee may use, sell, or lease under § 363 of this title ... shall deliver to the trustee, and account for, such property or the value of such property ...” 11 U.S.C. § 542(a). Although each count is styled “turnover,” Defendants reject that characterization. They argue that the assets which Plaintiffs demand to be turned over are the subject of dispute between the parties. Defendants’ Brief, 12. Therefore, their argument goes, these counts are not turnover claims. In response, Plaintiff offers the rather circular argument that all they need to show to establish a viable turnover claim is that the money demanded is property of the estate. Plaintiffs’ Brief, 7. Do these counts raise claims for turnover?
Examination of the question whether an action is properly characterized as a turnover proceeding typically occurs in connection with a determination whether a matter is a core or non-core proceeding. See e.g., Beard v. Braunstein, 914 F.2d 434, 443-44 (3d Cir.1990); see also In re Asousa Partnership, 264 B.R. 376, 384 (Bankr.E.D.Pa.2001)(“Turnover under 11 U.S.C. § 542 is a remedy available to debtors to obtain what is acknowledged to be property of the bankruptcy estate.”); see also Creative Data Forms, Inc. v. Pennsylvania Minority Business Development Authority (In re Creative Data Forms, Inc.), 41 B.R. 334, 336 (Bankr.E.D.Pa.1984) (“[I]f the debtor does not have the right to possess or use the property at the commencement of the case, a turnover action cannot be a tool to acquire such rights.”), aff'd, 72 B.R. 619 (E.D.Pa.1985), aff'd, 800 F.2d 1132 (3d Cir.1986) (table). Numerous courts have held that a turnover is not proper where a bona fide dispute exists. See In re Allegheny Health Education and Research Foundation, 233 B.R. 671, 677 (Bankr.W.D.Pa.1999) citing U.S. v. Inslaw, Inc., 932 F.2d 1467, 1472 (D.C.Cir.1991) (“ ‘It is settled law1 that turnover actions under § 542 cannot be used ‘to demand assets whose title is in dispute’ ”) see also In re 2045 Wheatsheaf Associates, 1998 WL 910228 *10 (Bankr.E.D.Pa.) (quoting In re Johnson, 215 B.R. 381, 386 (Bankr.N.D.Ill.1997), to the effect that “[t]urnover under § 542 of the Code ‘is not intended as a remedy to determine disputed rights of parties to property. Rather, it is intended as a remedy to obtain what is acknowledged to be property of the bankruptcy estate.’ ”); In re LiTenda Mortgage Corp., 246 B.R. 185, 195 (Bankr.D.N.J.2000) citing In re CIS Corp., supra, 172 B.R. at 760 (“The terms ‘matured, payable on demand, or payable on order’ create a strong textual inference that an action should be regarded as a turnover only when there is no legitimate dispute over what is owed to the debtor.”); In re F & L Plumbing & Heating Co., 114 B.R. 370, 376-77 (E.D.N.Y.1990) (explaining that where no set fund exists and other parties may have legal rights to the monies sought, no turnover action lies); In re Ven-Mar Intern., Inc., 166 B.R. 191, 192-93 (Bankr.S.D.Fla.1994) (holding that § 542 does not provide a means to recover property where a dispute exists between the parties); In re Matheney, 138 B.R. 541, 546 (Bankr.S.D.Ohio 1992) (stating that an action is properly characterized as one for turnover when the trustee or debt- or in possession is seeking to obtain property of the debtor, not property owed to the debtor); In re Kenston Management Co., 137 B.R. 100, 107 (Bankr.E.D.N.Y.1992) (holding that an action for turnover only exists if the debt has matured and is “specific in its terms as to the amount due *334and payable”); In re FLR Company, Inc., 58 B.R. 632, 634 (Bankr.W.D.Pa.1985) (“Implicit in the bankruptcy context of turnover is the idea that the property being sought is clearly the property of the Debtor but not in the Debtor’s possession. Turnover, 11 U.S.C. § 542, is not the provision of the Code to determine the rights of the parties in legitimate contract disputes.”) Do these counts involve a claim subject to dispute?
The Third Circuit has explained that a “bona fide dispute” exists only when there is “a genuine issue of material fact that bears upon the debtor’s liability, or a meritorious contention as to the application of law to undisputed facts.” B.D.W. Associates v. Busy Beaver Bldg. Ctrs., 865 F.2d 65, 66 (3d Cir.1989) (adopting standard enunciated in In re Busick, 831 F.2d 745, 746 (7th Cir.1987) which, in turn adopted In re Lough, 57 B.R. 993, 997 (Bankr.E.D.Mich.1986) with gloss: requiring that fact or legal issue in dispute be “substantial”). Applying this definition to the three counts, the Court sees that the Defendants “adamantly” dispute that they have done anything wrong or that they diverted money from the Debtors to themselves. Defendants’ Brief, 12. Thus, Plaintiffs’ argument that a finding that the property sought to be turned over is property of the estate begs the question. At this stage in the litigation, the Court does not know whether the funds sought to be recovered are (or are not) estate property. There exists, then, a bona fide dispute on that material issue which, in turn, means that the claims in Counts VI through VIII are not strictly “turnover” claims. For that reason, the Court finds that such claims are non-core.
However, yet again, the Defendants’ analysis is incomplete. Having confirmed their contention that these counts are non-core, the Court must delve further to determine if any are nonetheless “related” matters. Count VI alleges that property of United was transferred by individual defendants to themselves and other entities with no legitimate business purpose. Complaint ¶¶ 219-222 In Count VII, essentially the same thing is alleged as to have happened to Jamuna. There, it is alleged that its revenues were transferred to United, among other defendants, and with no legitimate business purpose. Id. ¶¶ 223-28. Likewise, Count VIII alleges that funds which were the property of Bagga Enterprises were improperly transferred to other defendants. Id. ¶¶ 230-35. Should all or part of those transferred funds be recovered, the respective estate would be affected in a positive manner. Therefore, the Court finds that Counts VI, VII and VIII are “related”, non-core matters.
Count IX — Fraud
This count raises a claim under the Pennsylvania common law of fraud in the inducement. See Eigen v. Textron Lycoming Reciprocating Engine Div., 874 A.2d 1179, 1185 (Pa.Super.2005) (listing the elements of fraud in the inducement as:(l) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance.) The Baggas are alleged to have intentionally made materially false representations to induce FL’s predecessor in interest to loan them money. Complaint, ¶¶ 239-43. That lender justifiably relied on false financial statements to its detriment. Id. ¶¶ 244-46.
While both parties agree that this count is non-core, they disagree on whether it is *335a “related” claim. Plaintiffs maintain that the fraud claim is non-core but “related” for two reasons: first, it is “factually related” to the core fraudulent transfer claim; and, second, under the Joint Prosecution Order, any recovery will inure to the benefit of the bankruptcy estate. Plaintiffs’ Brief, 8. Defendants maintain that this count is wholly unrelated to the case as it is brought by PL on its own behalf only and does not involve the Trustee plaintiffs. Defendants’ Brief, 9.
Plaintiffs’ first argument — that there is commonality between the fraud and the fraudulent transfer claims sufficient to render the former “related” — is as unsuccessful here as it was when raised in support of the argument that the conversion claim was core. The same can be said, however, for Defendants’ argument; to wit, that the Trustee must be one of the litigants for a bankruptcy court to have even “related to” jurisdiction. What matters, the Third Circuit explained in Pacor, is
whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. E.g., In re Hall, 30 B.R. at 802; In re General Oil Distributors, Inc., 21 B.R. 888, 892 n. 13 (Bankr.E.D.N.Y.1982); In re U.S. Air Duct Corp., 8 B.R. 848, 851 (Bankr.N.D.N.Y.1981); 1 Collier on Bankruptcy ¶ 3.01 at 3-49. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.
743 F.2d at 994. This reveals as persuasive Plaintiffs’ second argument; to wit, that the Joint Prosecution Order will affect this bankruptcy estate. If prosecuted successfully, the fraud claim would positively affect these bankruptcy estates. For that reason, the Court finds that Count IX is a non-core proceeding which is related to these bankruptcy estates.
Counts XI through XIV — Breach of Fiduciary Duty
Counts XI through XIV allege four instances of fiduciary misfeasance and/or assisting or abetting such conduct. Certain individual defendants — qua fiduciaries — are accused of unjustly enriching themselves at the Debtors’ expense. See Count XI. Mr. and Mrs. Bagga are alleged to have stripped assets from their companies, including the Debtors. See Count XII. At the same time, they are charged with causing Bagga Enterprises and Jamuna Real Estate to become even more insolvent. See Count XIII. Finally, those individual defendants not fiduciaries are supposed to have aided or abetted those who were as the latter violated their oaths. See Count XIV. Each of these counts states a claim under Pennsylvania law. See Westlake Plastic Co. v. O’Donnell, 182 F.R.D. 165, 171 (E.D.Pa.) (observing that self-dealing is an example of a breach of fiduciary duty citing 15 Pa. C.S.A. § 512); In re Specialty Tape Corp., 132 B.R. 297, 301 (Bankr.W.D.Pa.1991) (holding that former officers-directors breached their fiduciary duty to the debt- or when they transferred the debtor’s assets, including equipment that deprived the debtor from servicing its customers and deriving income, to a corporation of which they were also officers and directors); Official Committee of Unsecured Creditors v. R.F. Lafferty & Co., 267 F.3d 340, 349 (3d Cir.2001) (“[W]e conclude that, if faced with the issue, the Pennsylvania Supreme Court would determine that ‘deepening insolvency’ may give rise to a cognizable injury.”); Koken v. Stein-*336berg, 825 A.2d 723, 732 (Pa.Cmwlth.2003) citing Pierce v. Rossetta Corp., 1992 WL 165817 *8 (E.D.Pa.1992) (listing elements for a claim for aiding and abetting breach of a fiduciary duty under Pennsylvania law as: (1) a breach of a fiduciary duty owed to another; (2) knowledge of the breach by the aider and abettor; and (3) substantial assistance or encouragement by the aider and abettor in effecting that breach). That takes the Court to the primary question: are these counts core or non-core?
As with the conversion and fraud counts, Plaintiffs’ argument that Counts XI through XIV are core is made by association. The breach of fiduciary duty claims, say the Plaintiff, are “factually related” to the fraudulent transfer and turnover claims. Plaintiffs Brief, 10. For their part, Defendants raise the same argument as they did towards the conversion and fraud counts: the claims arise under state statute and common law and preceded the bankruptcy. Defendant’s Brief, 9, 10.14
While the Third Circuit has not had occasion to decide whether such claims are core or not, the majority of courts which addressed the question have held that a cause of action for breach of fiduciary duty is a non-core, related proceeding. See Diamond Mort. Corp. v. Sugar, 913 F.2d 1233, 1239 (7th Cir.1990); In re Cannon, 277 F.3d 838, 846 (6th Cir.2002); McCord v. Papantoniou (In re Papantoniou), 316 B.R. 113, 121 (E.D.N.Y.2004); In re Delaware & Hudson Rwy., 122 B.R. 887, 894 (D.Del.1991); Johnson v. State Farm Mut. Ins. Co. (In re Guenther), 65 B.R. 650, 651 (Bankr.D.Colo.1986); In re Michigan REIT, 87 B.R. 447, 453 (E.D.Mich.1988); In re SRC Holding Corp., 352 B.R. 103, 166 (Bankr.D.Minn.2006); In re 4 Front Petroleum, Inc., 345 B.R. 744, 750 (Bankr.N.D.Okla.2006); Allen v. J.K. Harris & Co., 331 B.R. 634, 641 (E.D.Pa.2005) but see contra Glinka v. Abraham and Rose Co., Ltd., 1994 WL 905714 *8 (D.Vt.1994) This Court has previously held with the majority. See Eagle Enterprises, Inc., 259 B.R. 83, 87-88 (Bankr.E.D.Pa.2001) (finding in abstention context that breach of fiduciary duty claims are non-core related).
Without question, these claims cannot be said to invoke a substantive right provided by title 11 or to arise only in the context of a bankruptcy. Thus, they are not “core” claims. However, what can be said with certainty is that if the Plaintiffs prevail on these counts, the estate stands to benefit. Accordingly, this Court concludes that these counts raise “non-core, related” matters.
Conclusion
The Court makes the following determination as to the eore/non-core status of each of the fifteen counts of the Complaint: Counts I, II, III, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, and XV are non-core, related claims. Count IV is a core proceeding.15
Order
And Now, in accordance with the District Court’s Order dated October 6, 2006, it is hereby:
*337Ordered, that Counts I, II, III, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, and XV of this adversary proceeding are non-core, related claims. Count IV is a core proceeding.
. That is the extent of the District Court's directive: to determine which counts raise "core” claims and which counts raise non-core claims.
. See 28 U.S.C. § 157(b)(3) (“The bankruptcy judge shall determine, on the judge’s own motion or on timely motion of a party, whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under Title 11.” (emphasis added)) Whether a proceeding is core or non-core is important in determining if the reference should be withdrawn. In re American Capital Equipment, LLC, 325 B.R. 372, 377 (W.D.Pa.2005)
. Mr. Krasny is the Trustee for United and Jamuna; Mr. Seitz serves as Trustee of Bagga Enterprises.
. The Court entered a Joint Prosecution Order permitting the Trustee and FL to join as plaintiffs. See Order dated August 17, 2005 filed in the main case.
. Title 28 provides, in pertinent part, that "the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related, to cases under title 11." 28 U.S.C. § 1334(b) (emphasis added). District Courts are therefore empowered to refer bankruptcy matters to bankruptcy court:
Each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district.
28 U.S.C. § 157(a)(emphasis added).
.Core proceedings include, but are not limited to—
(A) matters concerning the administration of the estate;
(B) allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purposes of confirming a plan under chapter 11, 12, or 13 of title 11 but not the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11;
(C) counterclaims by the estate against persons filing claims against the estate;
(D) orders in respect to obtaining credit;
(E) orders to turn over property of the estate;
(F) proceedings to determine, avoid, or recover preferences;
(G) motions to terminate, annul, or modify the automatic stay;
(H) proceedings to determine, avoid, or recover fraudulent conveyances;
*329(I) determinations as to the dischargeability of particular debts;
(J) objections to discharges;
(K) determinations of the validity, extent, or priority of liens;
(L) confirmations of plans;
(M) orders approving the use or lease of property, including the use of cash collateral;
(N) orders approving the sale of property other than property resulting from claims brought by the estate against persons who have not filed claims against the estate;
(O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims; and
(P) recognition of foreign proceedings and other matters under chapter 15 of title 11.
28 U.S.C. § 157(b)(2).
. The statute does provide, however, that all parties may consent to the Bankruptcy Court's entry of a final judgment. See U.S.C. § 157(c)(2).
. That does not mean, however, that the Court will analyze each count seriatim. Given that several counts raise the same cause of action (albeit against different Defendants), the Court will analyze each common cause of action as a group.
. 18 U.S.C. § 1961 et seq.
. Originally, the Plaintiffs had alleged that counts IV (Fraudulent Transfer), VI, VII and VIII (all for Turnover under 11 U.S.C. § 542) were "core” proceedings and that the remaining counts were non-core related proceedings. See Complaint, ¶ 8. Plaintiffs now argue that all counts except I, II and IX are core. No explanation for this change is offered except to point out that this switch was articulated at the April 17, 2006 hearing. See Defendants' Brief, 6 n. 3.
. Plaintiffs explain that Count XV pleads a remedy as opposed to a cause of action. See Plaintiff's Brief, 10 (stating that “it logically follows the core/non-core status of the individual causes of action”). No authority for this unorthodox practice is offered.
. The Court's own research reveals one rather dated line of authority which accepts Plaintiffs’ premise. See In re Lombard-Wall, Inc., 48 B.R. 986, 991 (S.D.N.Y.1985) (finding that claim in question “so logically connected” to an issue in the case "that judicial economy and fairness dictate that they be decided in the same forum.”) That reasoning, however, is contrary to controlling Third Circuit authority.
. Counts VI and VII are brought by Mr. Krasny as Trustee for United and Jamuna, respectively; Count VIII is brought by Mr. Seitz as Trustee for Bagga Enterprises. See Complaint.
. Here, again, Defendants do not specify whether the non-core claims are related or not.
. This ruling is specifically limited to the precise directive set forth in the District Court's Remand Order. The Court was not asked or directed by the District Court to opine on the other issues which the parties in their written submissions have asked the Court to discuss. Under the circumstances the Court believes it would be inappropriate to unilaterally go beyond the issue referred to it. Accordingly, the Court declines to address other issues raised by the parties in their briefs concerning the motion for withdrawal of the reference pending in the District Court. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494110/ | MEMORANDUM OPINION (A) SUSTAINING OMNIBUS OBJECTION TO ALL PROOFS OF CLAIM FILED BY ALBERT E. CUNEO AND (B) GRANTING MOTION TO RELEASE FUNDS
JEFFERY A. DELLER, Bankruptcy Judge.
There are two matters before the Court, each of which have been consolidated for purposes of this Memorandum Opinion. These two matters are core proceedings pursuant to 28 U.S.C. §§ 157(b)(2)(A), (B), (F), (H), (K) and (O). The first matter is the debtor’s Motion to Release Funds Held by First Colony Life Insurance Company (the “Motion to Release Funds”). The second matter is the debtor’s Objection to All Proofs of Claim filed by Albert E. Cuneo (the “Claims Objection”). The issues raised by the Motion to Release and the Claims Objection are: Does Albert Cuneo hold any allowable unpaid claims against the debtor, Jody Benninger? If Mr. Cuneo does hold allowed claims, are *341such claims properly secured against the debtor’s interest in a pre-bankruptcy structured settlement of a medical malpractice action? For reasons set more fully in this Memorandum Opinion, the Court concludes that Mr. Cuneo has no unpaid claims that are allowed. For the same reasons why Mr. Cuneo has no unpaid claims that are allowed, the Court also concludes that Cuneo has no security interest whatsoever in any of the debtor’s assets. Consequently, the Court will enter an order which (a) grants the Motion to Release Fund, and (b) sustains the Claims Objection.
I. BACKGROUND
The claimant in these proceedings, Albert E. Cuneo, filed nine (9) separate secured claims against the bankruptcy estate, each arising out of an “Agreement” dated July 14, 2000 for “Consultation Services” by and between the Debtor and Mr. Cuneo. The following is a summary of the proofs of claim filed by Albert E. Cuneo:
Proof of Claim Alleged Basis of Claim Judgment Obtained Claim Amount
#6 Services Rendered 6/29/00 — 8/8/00 8/09/00; Butler County, PA 2000-20766 $2,469.03
#7 Services Rendered 8/9/00 — 9/4/00; 9/05/00; Butler County, PA 2000-20872 $2,569.97
#8 Services Rendered 9/05/00 — 10/11/00 10/11/00; Butler County, PA 2000-20988 $1,957.07
#9 Commission on annuity proceeds transfer to Settlement Capital_ 4/30/02; Butler County, PA 2002-20610 $28,850.77 ($267, 836.00 x 7% = $18,748.52 plus interest)
#10 Services Rendered 10/01/00-11/30/00 05/01/02; Butler County, Pa 2002-20613 $2,440.94
# 11 $100 court ordered counsel fee payable to _Cuneo_ 01/21/05; Butler County, PA 2005-20161 $387.88
# 12 Commission of 7% based on theory of loss of bargain (rate Cuneo believes should have been utilized)— first transfer to _Settlement Capital 8/15/05; Butler County, PA 2005-21583 $11,286.72 ($ 7,373.88 principal plus $3,838.63 interests plus costs)
# 13 Commission of 7% based on theory of loss of bargain (rate Cuneo believes should have been utilized)— second transfer to _Settlement Capital 8/15/05; Butler County, PA 2005-21584 $47,297.60 ($38,578.70 principal plus $8,502.39 plus costs)
# 14 Lawsuit against Benninger, Butler County, PA 2003-10409 n/a unliquidated
*342Proof of Alleged Basis Claim of Claim Judgment Obtained Claim Amount
TOTAL $97,259.98
The circumstances giving rise to the Debtor’s contractual relationship with Mr. Cuneo are unfortunate. In 1979, the debt- or Jody Benninger (then known as Jody Frank)(hereinafter referred to as the “Debtor” or “Benninger”) gave birth to a son, Jason, who was born prematurely with brain damage and cerebral palsy. Jason Frank remained in the hospital after his birth for approximately one year. Thereafter, he required assistance in all aspects of his life. Jason ultimately passed away on April 5, 1998 at the age of 18.
In 1982, a medical malpractice action was commenced against Benninger’s physician on behalf of Benninger’s minor severely disabled son, as well as on behalf of Benninger and her then husband in the Court of Common Pleas of Butler County. The action alleged negligence occurring before and at the time of Jason’s birth. According to papers filed in the Court of Common Pleas of Butler County, Jason was mentally and physically disabled from birth, having suffered brain damage, spastic athetoid cerebral palsy and related disorders.
A settlement was reached in 1986 in which a structured settlement was established for the benefit of the guardianship estate of Jason Frank. As part of the settlement, a lump sum payment of $140,000 was made for Jason Frank’s benefit. To fund the structured settlement, an annuity was purchased on behalf of Jason Frank in the amount of $310,000 to provide an annual income of $20,760.00 payable for a period of thirty years. An additional annuity was also purchased to provide deferred lump sum payments every five years commencing in February 1992 in a scheduled amount.1 Both annuities were purchased by the Medical Professional Liability Catastrophe Loss Fund from First Colony Life Insurance Group.
Prior to her son’s death in 1998, Debtor Jody Benninger took care of her two daughters along with her son Jason (who required constant care). At all times material hereto, Benninger did not have employment outside of the home. In terms of education, the Debtor completed her high school education but did not obtain any education beyond a high school diploma. In June 1998, Benninger and her husband were officially divorced.2
After the death of her son, Benninger was a “nervous wreck.” Her condition was such that she was under the care of a treating physician, and was on prescription medication (Xanax). During this time frame, the Debtor began to experience financial difficulties.
*343As a result of Benninger’s financial problems, she sought to sell her home in hopes of avoiding a sheriffs sale. Towards this end, Benninger contacted Northwood Realty seeking a realtor to list her home for sale. Benninger came into contact with the respondent Albert E. Cuneo (“Cuneo”) through Northwood Realty because, at that time, Cuneo was a real estate agent for the company.
In an effort to alleviate financial burdens that had developed, Benninger also determined to sell her interests in the structured settlement funded by the annuities issued by the First Colony Life Insurance Group. She made this decision after seeing a television advertisement for Peach-tree Settlement Funding (“Peachtree”), which is a company that is in the business of purchasing structured settlements. At the time of the advertisement, Benninger had already received a notice of foreclosure against her home. She made the initial contact with Peachtree after seeing the advertisement in hopes of receiving sufficient funds to satisfy her mortgage and other debts. After she made contact with Peachtree, Benninger then filled out some type of contract with Peachtree in order to commence the process whereby the structured settlement could be sold.
After Benninger commenced discussions with Peachtree, Cuneo became aware of Benninger’s beneficiary rights to receive the annuity payments and her desire to liquidate them. It is not entirely clear to the Court how this fact became known to Cuneo. It also did not appear to be clear to Benninger, who testified that possibly Cuneo saw her filling out applications for the transfer of the structured settlement funded by the annuities or that he overheard phone conversations that she was having concerning the potential transfer of the right to payments.3 No matter how Cuneo became aware of the possible transaction, it is undisputed in this case that Benninger had initiated contact with Peachtree on her own without the assistance of Cuneo and that Cuneo interjected himself into the process after-the-fact.
After meeting with Benninger, Cuneo drafted an “Agreement”, dated July 14, 2000, for “Consultation Services”. It is important to note that the Agreement is an eight page, single spaced, thirty-seven (37) paragraph long document that is chocked full of legalese that can make a Byzantine scholar proud. The Agreement, which is not written in plain English, contains countless references throughout to “the party of the first part” (Cuneo) and “the party of the second part” (Benninger) which causes much difficulty of comprehension. Even upon a review of the Agreement, it is quite understandable that Benninger may not have understood it. Much of the legalese would be difficult for a trained legal professional to decipher let alone a lay person, particularly one in a heightened emotional and medicated state such as Benninger. Buried within lengthy paragraphs overflowing with “heretos,” “hereins” and “parties of first and second parts,” is the Agreement’s imposition of significant obligations on Benninger and the limitation of her rights.
The Agreement states that Cuneo agreed to provide the following services to *344or for the benefit of Benninger: “rendering of advise and professional expertise for the purpose of asset liquidation, debt consolidation and restructuring, investment or re-investment of capital in real person, or business property.”4 As payment for these services, Cuneo developed a payment scheme based on hourly rate and/or a percentage commission. Specifically, Cuneo charged Benninger for consultation and administrative services in the amount of $150.00 an hour on the basis of .10 per hour increments.5 As to any proceeds that Benninger might receive as a result of “consultations, projections, or financial information disseminated” by Cuneo, Cuneo was to receive a percentage commission of seven per cent (7%).6 In addition, the Agreement provided for reimbursement of all fees and costs plus a 10% advance fee (i.e., a 10% mark-up) on all costs. Unpaid amounts accrued interest at an annual rate of 10% compounded on a daily basis.7
Among the significant provisions in the Agreement was a provision that allegedly provides Cuneo a security interest in the annuity funded structured settlement.8 The Agreement further called for Benninger to execute notes for amounts payable to Cuneo.9 In addition, the Agreement provided for Cuneo, if he so chose, to confess judgment for all sums due from Benninger.10 The way the Agreement worked was that Cuneo could proceed to confess judgment(s) against Benninger, rather than place a mortgage or financing statement against Benninger’s property, in order to “protect the annuity from infiltration.”
Upon entering into the Agreement (and even before hand), Cuneo began charging Benninger for services relating to a variety of matters, many of which appear to be legal in nature. These matters include Cuneo providing “consultation” services with respect to the pending mortgage foreclosure against Benninger, Cuneo negotiating and/or providing consultation services with respect to the workout of delinquent loans, and Cuneo providing consultation with respect to the eviction of an “undesirable individual” residing on the Debtor’s property.
Additional alleged services provided by Cuneo included the preparation of an “application” with respect to Benninger’s sale of the structured settlement. Apparently, sometime at or about the time Benninger entered into the Agreement with Cuneo, Peachtree learned that Pennsylvania law required that the sale of structured settlements must be approved by the Court of Common Pleas. Peachtree advised Benninger that Peachtree was not interested in engaging in certain legal proceedings required to conclude the sale of the structured settlement. Peachtree then subsequently referred Benninger to Settlement Capital Corporation (“Settlement Capital”). In August, 2000, Benninger submitted a written application to Settlement Capital seeking to sell her annuity rights under the structured settlement. It is this application to Settlement Capital that was typed and mailed by Cuneo.
*345In the months following the signing of the Agreement, Cuneo proceeded to obtain judgment notes executed by Benninger for alleged services rendered by Cuneo. Cuneo then confessed judgment on the notes in the Court of Common Pleas of Butler County. Specifically, a note dated August 3, 2000 in the principal amount of $7,881.38 was executed by Benninger in favor of Cuneo for alleged services rendered from and after June 29, 2000 and this note was the basis for a confession of judgment on August 9, 2000 at Case No. 2000-20766 in the Court of Common Pleas for Butler County, PA. The judgment by confession at Case No. 2000-20766 was entered less than one month after the execution of the Agreement. The amount allegedly due included charges for “services” rendered pri- or to the date of the Agreement.
Less than one month later on September 5, 2000, another judgment by confession was entered at Case No. 2000-20872 in the Court of Common Pleas of Butler County based upon a note dated August 31, 2000 in the principal amount of $9,980.75. This note was allegedly for sums due on account of services rendered by Cuneo from approximately August 9, 2000 to September 4, 2000.
Only five weeks later, another note in the amount of $1,926.56 for services rendered from approximately September 5, 2000 to October 11, 2000, was executed by Benninger in favor of Cuneo. On the same date, Cuneo also confessed judgment against Benninger at Case No. 2000-20988 in the Court of Common Pleas of Butler County, PA.
In order to pursue collection of his confessed judgments, Cuneo hired counsel in Virginia, which is the location of First Colony Life Insurance Company. Through Virginia counsel, Cuneo allegedly garnished the annuity payments made from First Colony Life Insurance Company to Benninger.11 As a result of the garnishment, Cuneo has received, to date, a sum excess of $23,000.
According to various proofs of claim filed by Cuneo in this bankruptcy case, Cuneo also obtained additional confessed judgments against Benninger in the Court of Common Pleas of Butler County.12 These judgments are: a judgment in the amount of $18,748.52 entered on April 30, 2002 (Proof of Claim No. 9), a judgment in the amount of $1,336,67 entered May 1, 2002 (Proof of Claim No. 10), judgment in the amount of $7,373.88 entered on August 15, 2005 (Proof of Claim No. 12) and finally, judgment in the amount of $38,578.70 (Proof of Claim No. 13). The proofs of claim do not provide the substantive basis for these alleged judgments.
Although the parties had apparently entered into a listing agreement to sell Benninger’s house, no private sale of the house occurred and the Benninger’s house was ultimately subject to a sheriffs sale. Communications between Benninger and Cuneo then stopped sometime around the beginning of 2001, and it therefore appears that Benninger did not execute any judgment notes with respect to any of the *346debts underlying the claims filed by Cuneo at Claim Nos. 9, 10, 11, 12, 13 and 14.
After the cessation of communication between the parties, a joint petition was submitted on April 16, 2001 by Benninger and Settlement Capital in the Court of Common Pleas of Butler County seeking approval for the transfer of certain of Benninger’s rights under the annuity funded structured settlement (in exchange for the sum of $246,770.00).13 The petition was submitted pursuant to 40 P.S. § 4003, which sets forth “Conditions to Transfers of Structured Settlement Payment Rights.” The petition was approved by the Court of Common Pleas of Butler County on May 30, 2001. Cuneo was not involved in the preparation, submission or approval of the joint petition submitted to the court.
When he entered into the “Agreement” for “Consultation Services” with Benninger, Cuneo failed to file a UCC-1 financing statement to perfect any security interest granted to him. However, belatedly and after his relationship with Benninger ended, Cuneo filed a UCC-1 Financing Statement on March 25, 2002 with the Pennsylvania Secretary of State (naming Benninger, First Colony Life Insurance Company and Medical Professional Liability Catastrophe Loss Funds as debtors). The UCC-1 financing statement was not signed by Ms. Benninger or any of the other persons or entities listed as “debtors.”
In April 2003, a second joint petition to transfer Benninger’s rights to the annuity payments was submitted to the Court of Common Pleas for Butler County by Benninger and Settlement Capital. Pursuant to the second petition, Benninger sought to transfer her rights to receive certain annuity payments to Settlement Capital for $168,000.00.14 A final order approving the second joint petition was entered on September 2, 2003. Cuneo was not involved in any way with this second joint petition and acknowledged at trial that he had no knowledge of the petition.
Benninger’s financial malaise continued and ultimately she filed her Chapter 13 petition on August 29, 2005. No explanation has been provided to the Court in terms of exactly what happened to the sale proceeds Benninger received from Settlement Capital.
Because Cuneo’s garnishments had effectively tied up all remaining funds payable by First Colony to the Debtor, Benninger filed the Motion to Release Funds. In the Motion to Release Funds, Benninger asserted that the proceeds of the annuity issued by First Colony15 are property *347of the estate and that such proceeds are essential to the Debtor’s funding of her Chapter 13 plan. The motion therefore requested that First Colony release all funds being held as well as any future payments due to be paid to the Debtor.16 A hearing was held on December 6, 2005 at which it was determined that an evidentiary hearing would be set and the Debtor would file a formal objection to Cuneo’s proofs of claims.
Shortly thereafter, on December 22, 2005, Benninger filed the Claims Objection against Cuneo. After the parties conducted discovery, an evidentiary hearing was held and, after consideration of the pleadings and the evidence, the Court requested additional briefs by the parties. The matter is now ripe for determination.
II. ANALYSIS
In the Motion to Release Funds and the Claims Objection, Benninger asserts a myriad of reasons as to why the Court should not allow any of the secured claims asserted by Cuneo. The objections raised by Benninger as to Cuneo’s claim status include: (1) an objection contending that the amount claimed by Cuneo for “services” are incorrect or otherwise have been fully paid and satisfied, (2) an objection contending that the amount claimed by Cuneo for “commissions” should be disallowed because Cuneo was not the procuring cause of any sale of the annuities at issue, (3) an objection contending that the charges forming the basis of Cuneo’s claims are excessive and redundant, (4) an objection contending that Cuneo’s liquidated contractual claims and his “unliquidated” claim sounding in tort fail(s) for want of proof, and (5) an objection contending that, even if Cuneo holds allowable claims, the putative lien interest that Cuneo has in the annuities is unenforceable under applicable law. Cuneo naturally disputes these objections.
The burden of proof for claims filed pursuant to 11 U.S.C. § 502(a) is a shifting one and rests on different parties at different times. In re Allegheny Intern., Inc., 954 F.2d 167, 173-174 (3d Cir.1992). Under applicable law, the claimant must initially allege sufficient facts to support its claim and, upon meeting this standard of sufficiency, the claim is prima facie valid. Id. Upon objection to the claim, the burden then shifts to the objecting party to produce evidence sufficient to negate the prima facie valid claim. Id. If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden then reverts back to the claimant. Id. The claimant must then prove the validity of the claim by a preponderance of the evidence. Id. In the matter sub judice, Benninger produced sufficient evidence negating the prima facie validity of Cuneo’s claims, and at trial Cuneo failed to prove the validity of his claims by the preponderance of the *348evidence. Consequently, for the reasons set forth below, an Order will be entered which disallows his claims in toto.
A.
Proofs of Claim Nos. 6, 7, 8, 9,10, 12 and 13 are based on confessions of judgment obtained by Cuneo against the Debtor. Given the fact that the majority of Cuneo’s claims arise out of confessed judgments, it is important to recognize that certain principles which serve to safeguard individual consumer debtor rights are relevant to this dispute. In Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972), reh’g denied, 405 U.S. 1049, 92 S.Ct. 1303, 31 L.Ed.2d 592 (1972), the United States Supreme Court held that confessed judgments, obtained as a result of consumer credit transactions with individuals having income less than $10,000 annually, were unconstitutional absent a showing of voluntary consent and waiver of rights by the individual consumer debtor. While the income amounts in Swarb v. Lennox may now be outdated, the concern of an individual’s informed consent and waiver of rights remains present. See e.g., Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir.1994).
In this case, Benninger did not dispute that she had signed the Agreement and certain of the demand notes at issue. However, she testified at trial that she did not have a strong recollection and/or understanding of these documents. The Court therefore has some concern as to whether Benninger fully understood the terms of both the Agreement and the demand notes, and whether she knowingly and voluntarily waived her due process rights.
For example, the confession of judgment clause in the Agreement is not conspicuous and the Agreement is difficult to comprehend even by a trained legal professional.17 At the evidentiary hearing on this matter, Benninger testified that at the time she signed the Agreement, she was still on prescription medication. Tr. at p. 127, Ins. 23-25, p. 128, Ins. 1-2. Benninger testified that by November, 2000, she had moved into her brother’s residence because she was unable to take care of herself and didn’t know what she was doing. Tr. at p. 137, Ins. 4-5. Benninger further testified that she did not specifically recall reviewing the Agreement with Cuneo but assumed that she did read it since she signed the document. Tr. at p. *349124, Ins. 15-19. Benninger also did not recall having any discussion with Cuneo regarding payment terms under the Agreement. Tr. at p. 125, Ins. 2-11. She testified that she did not know whether payments to Cuneo were to be based on an hourly charge or on a percentage basis. Id. Benninger further testified that she did not even recall having a conversation about the confession of judgment provision; nor did she recall whether Cuneo explained that he could obtain a judgment against her and her property without affording Benninger the prior opportunity to have her case heard before a court of competent jurisdiction. Tr. at p. 127, Ins. 2-7. Simply stated, the evidence in this case is that Benninger did not understand the Agreement’s confession of judgment provision and that she was giving up a right to a hearing before any judgment could be entered by Cuneo against her. Tr. at p. 127, Ins. 8-15. It is in this context that the Court considers the judgments by confession obtained by Mr. Cuneo.
In Pennsylvania, confessions of judgment for money are governed by Pa. R.Civ.P. 2950.18 Confessions of judgment are not authorized actions against a natural person for consumer credit transactions. Pa.R.Civ.P. 2950. A consumer credit transaction is a transaction where credit, services or property is offered or extended to a person for personal, family or household purposes. Id. The alleged “services” provided by Cuneo under the Agreement related to matters concerning Benninger’s affairs, such as her delinquent residential mortgage loan, her delinquent car loan, the eviction of a person residing at her personal residence, and the sale of her interests in the annuity funded structured settlement. The “services” Cuneo agreed to provide in this case were clearly for a personal, family or household purpose. As such, it appears that the transaction between the parties was the very type of transaction intended to be excluded by the rules regarding confessions of judgment. Thus, it appears that Cuneo’s use of confession of judgment is unlawful.
Nevertheless, it has been held that a judgment by confession in Pennsylvania is a final judgment that is not ordinarily subject to collateral attack. Zhang v. Southeastern Fin. Group, Inc., 980 F.Supp. 787 (E.D.Pa.1997). In most circumstances, a confessed judgment must therefore be challenged by the judgment-debtor filing a petition to open or strike the judgment pursuant to Pa.R.Civ.P. 2959. However, the fact that the judgment-debtor petitioned for bankruptcy adds an additional level of complexity regarding the allowability of Cuneo’s judgment based claims.
Numerous provisions in the Bankruptcy Code vest a bankruptcy court with the authority to review judgment based claims and the associated priority of the debt *350associated with them. The applicable provisions of the Bankruptcy Code include: 11 U.S.C. § 502(b)(l)(providing that a claim is allowed, except to the extent that “such claim is unenforceable ... under any agreement or applicable law”), 11 U.S.C. § 502(d)(providing that the court can disallow claims held by transferees of avoidable transfers); 11 U.S.C. § 506(a)(providing that the court can determine the amount of a “secured claim to the extent of the value of such creditor’s interest” in estate property); 11 U.S.C. § 506(c)(providing that “to the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, ...”), 11 U.S.C. § 510(c)(l)(providing that the court can, “under the principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim”), 11 U.S.C. § 510(c)(2)(providing that the court can “order that any lien securing such a subordinate claim be transferred to the estate”), and 11 U.S.C. § 105(a)(pro-viding that the “court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of’ the Bankruptcy Code).
In addition, the United States Supreme Court has recognized that by filing a claim against the bankruptcy estate, a creditor triggers the process of “allowance and dis-allowance of claims,” thereby subjecting the creditor to the bankruptcy court’s equitable power. See Langenkamp v. Culp, 498 U.S. 42, 44-45, 111 S.Ct. 330, 112 L.Ed.2d 343 (1990)(citing Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 58-59 and n. 14, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) and Katchen v. Landy, 382 U.S. 323, 336, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966)). Indeed, in Pepper v. Litton, the United States Supreme Court allowed a debtor to challenge a state court judgment in bankruptcy court on the ground that a confessed judgment obtained by fraud was void ab initio for procedural reasons. Pepper v. Litton, 308 U.S. 295, 301-303, 60 S.Ct. 238, 84 L.Ed. 281 (1939). The United States Supreme Court has also held: “It is one of the fundamental principles upon which equity jurisprudence is founded, that before a complainant can have standing in court he must first show that not only has he a good and meritorious cause of action, but he must come into court with clean hands.” Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 244, 54 S.Ct. 146, 78 L.Ed. 293 (1933)
This Court sees no reason why applicable Supreme Court precedent should not apply in this case to disallow Cuneo’s claims. The Court reaches this conclusion because it is apparent that the judgments confessed by Cuneo against Ms. Benninger were unlawful. As one court wrote: “[n]o Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” Highland Tank & Mfg. Co. v. PS Intern. Inc., 393 F.Supp.2d 348, 361 (W.D.Pa.2005)(quoting Holman v. Johnson, 98 Eng. Rep. 1120, 1121, 1 Cowp. 342, 343 (K.B.1775)); see also Gaudiosi v. Mellon, 269 F.2d 873, 882 (3d Cir.1959)(“The doctrine (of unclean hands) is confessedly derived from the unwillingness of a court, originally and still nominally one of conscience, to give its peculiar relief to a suitor who in the very controversy has so conducted himself as to shock the moral sensibilities of the judge. It has nothing to do with the rights or liabilities of the parties; indeed the defendant who invokes it need not be damaged, and the court may even raise it sua sponte.”)(quoting Art Metal Works v. Abraham & Straus, 70 F.2d 641, 646 (2d Cir.1934)(Hand, J., dissenting), cert. denied, 293 U.S. 596, 55 S.Ct. 110, 79 L.Ed. 689); see also New *351Valley Corp. v. Corp. Prop. Associates 2 and 3 (In re New Valley Corp.), 181 F.3d 517, 524-527 (3d Cir.1999)(diseussing the clean hands doctrine in the context of bankruptcy claims).
B.
With respect to the unclean hands of the claimant, it bears noting that what Cuneo executed upon in order to satisfy his judgments by confession were the annuity payments issued by First Colony. Pennsylvania, however, has adopted the Structured Settlement Protection Act, 40 P.S. § 4001 et seq. (the “Act”).
The Act provides, in pertinent part, that:
... no transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shall be required to make any payment to any transferee of structured settlement payment rights unless the payee has filed a petition requesting such transfer and the petition has been granted by final Order or Decree of a Court of competent jurisdiction.
See 40 P.S. § 4003(a). Courts interpreting the Act have concluded that the statute is designed to protect beneficiaries of structured settlements from being taken advantage of by others. In re Petition of Brie Hilton, No. 2005-2721, 2005 WL 4171289 at *2, 2005 Pa. Dist. & Cnty. Dec. LEXIS 392 at *5 (2005). This conclusion is further supported by the fact that 40 P.S. § 4007 provides that a violation of the statute “shall be deemed a violation of ... the Unfair Trade Practices and Consumer Protection Law.”
In the matter before the Court, Cuneo alleges two things with respect to his secured status. One, he alleges that the Agreement purports to grant him a security interest in the annuities at issue. Two, he alleges that he is also secured by virtue of his execution of a garnishment against them. As to the former, the Court has no doubt that to the extent the Agreement conveys to Cuneo a security interest against the annuities,19 the grant of the security interest violates 40 P.S. § 4003(a). The Court reaches this conclusion because the Act unequivocally provides that a “transfer” for purposes of Section 4003 of the Act includes any “direct or indirect sale, assignment, pledge, hypothecation or other form of alienation, redirection or encumbrance made by a payee for consideration ...” See 40 P.S. § 4002. As to the latter, it also appears to the Court that a garnishment of the annuity would also be a “transfer” for purposes of the plain language of the Act. This conclusion is particularly acute given the broad meaning of the word “transfer” under the Act and given the fact that a fundamental purpose of the confession of judgment by Cuneo was to “protect the annuity from infiltration.” Tr. at p. 91, Ins. 24-25, 92, p. 92 Ins. 1-15. As Mr. Cuneo testified at trial:
Q: Did you realize that once you confessed judgment against her that the judgment would become a lien on whatever real estate she owned in Butler County?
A: Yes, I did.
*352Q: Was that the purpose behind—
A: That was—
Q: ■ — confessing judgment, doing that in lieu of actually having a mortgage recorded and filed?
A: Correct. That — it operates that way, Your Honor. And I also wanted to try and protect that annuity from any infiltration that would have maybe caused her a loss, you know, an unreasonable loss.
Id. Consequently, for these reasons, the Court concludes that Cuneo’s efforts to obtain an interest in the annuities were unlawful.
a
The Court also finds equally troubling the fact that the underlying basis of Cuneo’s claims is dubious at best. When one reviews Cuneo’s claims, it is quite apparent that a substantial amount of the charges for “services” as contained in Claim Nos. 6, 7, 8, and 10 are meritless. Those bogus charges include fees assessed for: (1) preparation of the Agreement itself, (2) matters relating to the sale of the Debtor’s residence which should have been properly encompassed in the listing agreement, and (3) preparation and prosecution of illegal confessions of judgment against the Debtor.
Even if the “service” based claims sought by Cuneo had some basis in the Agreement, the Court nonetheless disallows them under the clean hands doctrine and for public policy reasons. The Court reaches this conclusion because it became apparent to the Court at the evidentiary hearing on this matter that Mr. Cuneo has engaged in the unauthorized practice of law.
In Pennsylvania, the unauthorized practice of law is statutorily prohibited pursuant to 42 Pa.C.S.A. § 2524. The statute provides, in relevant part, that it is a misdemeanor of the third degree for any person “who, within this Commonwealth shall practice law .. .without being an attorney at law...” 42 Pa.C.S.A. § 2524(a).
The phrase “practice of law” is not statutorily defined and courts have been reluctant to establish a specific definition of it. As the Pennsylvania Supreme Court has held: “Marking out the abstract boundaries of legal practice would be an elusive, complex task more likely to invite criticism than to achieve clarity.” Dauphin County Bar Ass’n v. Mazzacaro, 465 Pa. 545, 351 A.2d 229, 233 (1976) citing Shortz v. Farrell, 327 Pa. 81, 193 A. 20, 21 (1937). Rather, each case is to be analyzed on the “particular judgment involved and the expertise that must be brought to bear on its exercise.” Id.
The standard for determining when an individual is practicing law is when the service requires legal knowledge, training, skill and ability beyond those possessed by the average person. Matter of Arthur, 15 B.R. 541 (Bankr.E.D.Pa.1981). Consequently, the practice of law is not confined to services rendered in relation to a particular court proceeding. Id. at 545. Rather, the practice of law may also include other aspects of rendering legal advice regardless of whether a matter is pending in a court, such as preparing legal instruments and contracts which secure legal rights. Id; In re Campanella, 207 B.R. 435, 446 (Bankr.E.D.Pa.1997) (“Consequently, it is clear that preparation of pleadings and other types of legal papers and giving of advise in legal matters constitutes the practice of law because all of these activities require a familiarity with *353legal principles which are beyond a layperson’s knowledge.”); Shortz, 327 Pa. 81, 193 A. at 21 (one of the three principal ways in which a lawyer applies his knowledge is preparing documents requiring familiarity with legal principles beyond that of an ordinary laymen such as wills and those contracts which are not of a routine nature.)
At trial, Cuneo testified that he is a licensed real estate appraiser. He is not a licensed attorney. Tr. at p. 84, Ins. 10-15.20 The Agreement which forms the basis of Cuneo’s claims was drafted by Cuneo. In fact, he charged Benninger for approximately eighteen hours to draft this document, even though Benninger never agreed to bear the cost of preparation. Tr. at p. 56, Ins. 5-11; Debtor’s Ex. A, 7/11, 7/12, 7/13, 7/14.
The Agreement called for Cuneo to render “advise and professional expertise for the purpose of asset liquidation, debt consolidation and restructuring, investment or re-investment of capital in real, personal or business property.” Agreement, ¶ 2. While these provisions appear to be somewhat ambiguous, the Agreement further required that Cuneo attend all meetings or legal proceedings relating to Benninger’s interests. Id., ¶ 3. Cuneo was even “authorized to conduct and attend consultations, meetings, pre-trial conferences of legal proceedings” and to “attend and participate in litigation generally before any court of competent jurisdiction” on behalf of Benninger. Id., ¶ 8, ¶ 9, ¶ 10.
The facts of this case are such that Cuneo began charging Benninger for services relating to a variety of matters, many of which appear to be legal in nature. The fact that Cuneo charged Benninger $150 per hour for services, and billed at l/10th of an hour increments, even creates the appearance of a bill for legal services.
One of the legal matters for which Cuneo provided “consultation” services was the mortgage foreclosure action against Benninger. For example, Cuneo testified at the evidentiary hearing regarding the legal flavor of his services as follows:
Q: ... what did you do there?
A: What did I do there? I went back through and I took a look at all of her mortgages to find out what people were doing because she was alleging to me that these people were coming to her with financial offerings that may have been predatory at the time. Predatory lending.
Q: When you say these folks, you mean — you mean the Chase or whoever — whatever the lender was?
A: Yes. The folks, yeah. The people who has positions. And I went back through the mortgage — I started a mortgage file and collected a couple of mortgages that were done by the Slippery Rock Federal Credit Union and then I believe someone by the name of Chase Manhattan — Chase Manhattan Bank of Texas, ... but I know that ... she was having a very bad time with a mortgage servicing company by the name of Meritech. Now, whenever we *354found that they were unwilling to even accept her payments, I tried to intervene in writing — by writing them or notifying them because they weren’t taking the payments....
Tr. at p. 85-86. He also testified:
Q: So, you think about September 29th, you met with her and strategized in terms of what to do ... in response to the foreclosure complaint?
A: I think that’s exactly what occurred.
Tr. at p. 99, lines 22-25; p. 100, Ins. 1-7; see also Tr. at p. 101, Ins. 18-25; p. 102, Ins. 1-11 (advising the Debtor about what to do to “head off the mortgage foreclosure”); Tr. at p. 90, Ins. 21-25 and Tr. at p. 91, Ins. 5-10 (advising the Debtor as to the various foreclosure papers, including the Act 91 notice).
The undisputed record in these proceedings also reflects that Cuneo was acting as a de facto insolvency lawyer for Benninger because he was negotiating and/or advising Benninger with respect to the workout of delinquent loans. His testimony before the Court included:
Q: So, you put together some sort of forbearance plan—
A: Yeah.
Q: —and you sent it to the lender to try to do a workout of some sort—
A: Right.
Q: —so that she could keep the home—
A: Right.
Q: —and avoid foreclosure.
Tr. at p. 87, Ins. 1-8. Towards this end, Cuneo negotiated on behalf of Ms. Benninger the return of collateral in lieu of repossession with various creditors, and Mr. Cuneo even prepared various forms in this regard on her behalf. See Tr. at p. 87, Ins. 15-25; p. 88, Ins. 1-25.
The fact of the matter is that Cuneo undertook actions to contact Benninger’s creditors to negotiate forbearance plans all the while, during that time, Benninger’s mortgagee obtained a judgment in foreclosure. Tr. at pp. 85-87. The Court is unsure as to whether any of the activities actually benefitted Benninger, and the Court suspects that they did not.21
Cuneo’s legal services extended beyond mortgage foreclosure and loan workout matters. By way of example, Cuneo’s services also included landlord/tenant advice with respect to the eviction of an “undesirable individual” residing on the Debtor’s property. Cuneo testified:
A: ... She [Benninger] was involved with a gentleman [¶]... and] became disfavored with him and wanted him evicted from the residence because I believe he was boarding there or rooming there at the time. She was not really too well informed about how to have someone removed from her residence....
Tr. at p. 9, Ins. 1-8. Cuneo also stated:
Q: What about this notice to remove, what is that?
A: That was a notice to remove where she had become disgruntled with the fellow who she was involved with ...
A: Oh, yeah, I prepared the notice to quit and I got — -got her to get it signed. Told her how to go about getting it served and told her how to go about getting a copy to the police barracks in Butler.
*355Tr. at p. 92, Ins. 16-25 and Tr. at p. 93, Ins. 21-24.
In addition, when Benninger ceased doing business with Peachtree, Cuneo intervened and attempted to negotiate an amicable settlement between Peachtree and Benninger. Specifically, when Peachtree was pursuing a possible transaction with Benninger, Peachtree advanced to Benninger $6,000 in anticipation of Benninger closing the annuity sale with Peachtree. However, when Peachtree determined not to proceed with the transaction because of the nuances of Pennsylvania law relating to the sale of structured settlements, Peachtree requested that Benninger repay the advance previously made by Peachtree. When no agreement was reached with Peachtree, Cuneo interceded and even performed the lawyerly function of preparing a letter of recision on behalf of his putative client. Tr. at p. 11, Ins. 9-18.
Regarding the transfer of the annuity payments, Cuneo, on his cross examination of Benninger, suggested that he helped Benninger “understand better” what she might be entitled to under her annuity.22 Apparently Cuneo was advising Benninger of her rights and obligations under the annuity in this regard, even though Cuneo is no lawyer.
There is an old phrase: “if it walks like a duck, talks like a duck, then it is a duck.” For all intents and purposes, it appears to the Court that Cuneo’s conduct, behavior and manner of providing services to Benninger constituted the unauthorized practice of law.
There is a public policy interest in ensuring that only those authorized and qualified to provide legal services be permitted to provide such services. The Supreme Court of Pennsylvania, in Shortz v. Farrell, 327 Pa. 81, 193 A. 20, 24 (1937) stated:
While in order to acquire the education necessary to gain admission to the bar and thereby become eligible to practice law, one is obliged to “scorn delights, and live laborious days,” the object of the legislation forbidding practice to laymen is not to secure to lawyers a monopoly, however deserved, but, by preventing the intrusion of inexpert and unlearned person in the practice of law, to assure to the public adequate protection in the pursuit of justice, than which society knows no loftier aim.
In Dauphin County Bar Ass’n v. Mazzacaro, 465 Pa. 545, 351 A.2d 229, 232 (1976), the Supreme Court of Pennsylvania stated that a person who holds himself out as competent to exercise legal judgment “... implicitly represents that he has the technical competence to analyze legal problems and the requisite character qualifications to act in a representative capacity.” Danger to the public is evident when those representations are made by those not adequately trained or regulated. Id.
In addition to Pennsylvania law proscribing that the unauthorized practice of law is a misdemeanor, Pennsylvania courts also adhere to the principle that an illegal or unlawful contract will not be enforced. Holst v. Butler, 379 Pa. 124, 108 A.2d 740 (1954) (citations omitted); Am. Ass’n of Meat Processors v. Casualty Reciprocal Exchange, 527 Pa. 59, 588 A.2d 491 (1991)(“the courts of this Commonwealth will not be used to enforce contracts which violate public policy; such contracts are void and the law will have nothing to do with them.”) Because the unauthorized practice of law is illegal as *356violative of a Pennsylvania statute and public policy, this Court concludes that the Agreement between Cuneo and Benninger is void under Pennsylvania law. Dippel v. Brunozzi, 365 Pa. 264, 74 A.2d 112, 114 (1950)(an agreement which violates a provision of a statute or which cannot be performed without violating such provision, is illegal and void). Having determined that the Agreement entered into between the parties is not a lawful one, it logically follows that any judgment based claims filed by Cuneo relating to the same are similarly disallowed by the Court. F.F. Bollinger Co. v. Widmann Brewing Corp., 339 Pa. 289, 14 A.2d 81 (1940)(corporation could not recover for architectural and engineering services rendered where plans not prepared by architect or engineer.); Bauman and Vogel, C.P.A. v. Del Vecchio, 423 F.Supp. 1041 (E.D.Pa.1976)(recovery under contract for accounting services would not be enforced where accounting firm violated CPA law during period of contract.).
D.
The Court also finds that Claim Nos. 9, 12, and 13 are lacking a substantive basis, which is further evidence of the claimant’s unclean hands.23 Pursuant to these claims, Cuneo seeks to be paid a 7% commission with respect to Benninger’s sales of annuities to Settlement Capital. These claims aggregate $87,435.09, of which $28,850.77 represents a 7% commission on the transactions that actually occurred between Benninger and Settlement Capital and $58,584.32 represents additional alleged commission due Cuneo as a result of an alleged “loss of bargain.” As to the latter, Cuneo apparently believes that Benninger short changed herself (i.e., sold the annuities for a price that was too low) when she sold her annuities to Settlement Capital. In this regard, Cuneo alleges he “could have” obtained for Benninger a better price, and Cuneo therefore seeks commissions based upon a hypothetical sale that never materialized.
The Court disallows these claims in toto. As an initial matter, the Court disallows the commission based claims on the basis that the transaction between Cuneo and Benninger did not comply with the disclosure and other requirements set forth in the Structured Settlement Protection Act, 40 P.S. § 4001 et seq. As a result, Cuneo’s claims in this regard are nugatory. In addition, as set forth above, the Agreement is void.
Even if the Structured Settlement Protection Act does not apply (and even if the Agreement is divisible in such a way that the void provisions of the agreement could be severed), the commission based claims filed by Cuneo are nonetheless disallowed.
In Pennsylvania, the law relating to when a broker is entitled to a commission is well established. First, there must be a contract of employment. Strout Realty, Inc. v. Haverstock, 382 Pa.Super. 340, 555 A.2d 210 (1989). Second, the broker must then present a purchaser who is ready, willing and able to purchase on terms that are satisfactory to the seller. Id. at 212 (citations omitted). Merely conducting negotiations with the prospective buyer does not entitle a broker to a eom*357mission unless the broker’s efforts were the “efficient procuring cause of sale.” Id. quoting Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244 (1962). See also Helmig v. Rockwell Mfg. Co., 380 Pa. 305, 111 A.2d 118 (1955).
The facts are, however, that Cuneo did not procure the transaction with either Peachtree or Settlement Capital. Rather, Benninger had contacted Peachtree prior to meeting Cuneo. It was Peachtree, and not Cuneo, that ultimately referred Benninger to Settlement Capital. Nor did Cuneo negotiate or procure the final transfer price. In addition, the transfer from Benninger to Settlement Capital required court approval of which Cuneo had no involvement. Rather, the only involvement Cuneo had with the transaction was in the physical preparation of the application, which was nothing but a clerical endeavor. Because the record does not show that the cash proceeds received by Benninger were the result of any alleged service performed by Cuneo, Cuneo’s commission based claims are disallowed.
The Court further notes that at the hearing on the Claims Objection, Cuneo was asked to point to a contractual basis supporting his commission based claims, including his claims based on “loss of bargain.” Cuneo asserted entitlement to recover a claim based upon a “loss of bargain” pursuant to Paragraph 33.d of the Agreement. Tr. at p. 108, Ins. 13-21.24 Paragraph 33.d, however, is an ipso facto provision in the Agreement, and courts have construed those provisions as being unenforceable. See e.g., In re Beck, 272 B.R. 112 (Bankr.E.D.Pa.2002); Matter of Triangle Laboratories, Inc., 663 F.2d 463 (3d Cir.1981).
Even if Paragraph 33.d is enforceable, this provision of the Agreement does not provide recourse for Cuneo. A cursory review of the Agreement indicates that any broker arrangement between Cuneo and Benninger was not an exclusive one. Because the agreement was not exclusive, Benninger was free to sell the annuities on her own or with the assistance of other brokers (all subject to the Structured Settlement Protection Act). Benninger *358should not be penalized for the Agreement’s lack of exclusivity.
Cuneo mis-reads Paragraph 33 as giving him the right of a “loss of bargain” if Benninger transfers her rights under the annuities without his consent. In essence, Cuneo re-engineers the Agreement to provide him with an exclusive brokerage arrangement. The Court will not construe the Agreement in such a way. The contract is a convoluted agreement, is not written in plain English, and the Court construes it against the drafter i.e., Mr. Cuneo. Franklin Interiors v. Wall of Fame Mgmt. Co., Inc., 510 Pa. 597, 511 A.2d 761, 763 (1986).
The fact of the matter is that, under best case scenario for Cuneo, the Agreement gives him a right to pursue “loss of bargain” if Benninger transfers her “property” to “avoid or dishonor payment of outstanding balances...” See Agreement at ¶ 33.d. Nothing exists in the record which suggests that Benninger transferred the annuities to Settlement Capital with the purpose of avoiding any of her alleged liabilities to Cuneo. Rather, a fair reading of the record is that Paragraph 33.d of the Agreement was never triggered by Benninger’s sale because Benninger actually had no legally cognizable obligations whatsoever to Cuneo. Alternatively any debts payable by Benninger to Cuneo were unlawful as being violative of the Structured Settlement Protection Act and Pennsylvania’s proscription against the unauthorized practice of law. Under these circumstances, the Court finds that none of the “loss of bargain” provisions of Paragraph 33.d of the Agreement have been triggered.
Furthermore, with respect to the claims filed by Cuneo at Claim Nos. 12 and 13, these two claims are premised on a commission right based on a “loss of bargain” theory measured against a hypothetical sale that never occurred. The face of the claims do not state, explain or in any way suggest the legal and factual basis of these claims, and the testimony of Cuneo at the evidentiary hearing was not helpful in this regard. Absent an adequate explanation on the record, and absent competent evidence supporting these claims, one is left to divine the genesis of them. Cuneo therefore has not met his burden of production and persuasion with respect to these claims and they are disallowed. See Brisbin v. Superior Valve Co., 398 F.3d 279 (3d Cir.2005)(citing Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243, 1258 (1983))(“Though damages for lost profits can be given, they cannot be recovered where they are merely speculative.”); Barrows v. Forest Laboratories, Inc., 742 F.2d 54, 60 (2d Cir.1984)(“A claim for benefit-of-the-bargain damages must be based on the bargain that was actually struck, not on a bargain whose terms must be supplied by hypotheses about what the parties would have done if the circumstances surrounding their transaction had been different.”).25
In addition to the above, alternative grounds of disallowance of Claim Nos. 9, 12 and 13 exist. Claim No. 9 is sup*359ported by an alleged judgment entered on April 30, 2002. The Debtor’s bankruptcy was filed on August 29, 2005. While the judgment supporting Claim No. 9 would not fall within the ninety (90) day preference period of 11 U.S.C. § 547, it does fall within the four year lookback period proscribed by the Pennsylvania Uniform Fraudulent Transfer Act. 12 Pa.C.S.A. § 5109; 11 U.S.C. § 544. Because the April 30, 2002 judgment was entered when Benninger was insolvent, and because Cuneo provided no consideration recognizable at law prior to the entry of the same, it appears to the Court that the judgment was a fraudulent transfer, see e.g., In re Walter, 261 B.R. 139 (Bankr.W.D.Pa.2001).
Similarly, it appears to the Court that Claim Nos. 12 and 13 were reduced to judgment on August 15, 2005, which is a time period within two (2) weeks of the Debtor’s bankruptcy filing. To the extent any such judgments operate as a lien against any assets of Benninger, or to the extent the entry of the judgments operate to erase any contractual rights or defenses of Benninger, the judgments are also avoidable under the preferential transfer provisions of the Bankruptcy Code. See 11 U.S.C. § 547; see e.g. In re Derrick, 190 B.R. 346, 355 (Bankr.W.D.Wis.1995)(discussing the notion that if a judgment ripens into a lien on eve of bankruptcy, such judgment lien is an avoidable preferential transfer); see also Wallach v. Nowak, et al. (In re Sherlock Homes of W.N.Y., Inc.), 246 B.R. 19 (Bankr.W.D.N.Y.2000)(termination of contractual rights on eve of bankruptcy filing was a transfer for purposes of avoidance) and In re e2 Communications, Inc., 320 B.R. 849 (Bankr.N.D.Tex.2004) (release of corporate debt- or’s claims against former director was a transfer). The judgments supporting Claim Nos. 12 and 13 would also be deemed fraudulent transfers by the Court because Benninger was insolvent when they were entered, and Cuneo did not provide anything of reasonably equivalent value to Benninger in return (as, in-fact, Cuneo was not the procuring cause of Benninger’s sale of the annuities to Settlement Capital).
11 U.S.C. § 502(d) provides that “the court shall disallow any claim of any entity ... that is a transferee of a transfer avoidable under section 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a)” of the Bankruptcy Code. Because the judgments in favor of Cuneo are avoidable, the claims of Cuneo at Claim Nos. 9, 12 and 13 are disallowed by operation of Section 502(d) of the Bankruptcy Code. See e.g. In re America West Airlines, Inc., 217 F.3d 1161 (9th Cir.2000)(holding that Section 502(d) disallowance is proper even if statute of limitation has expired with respect to avoidable transfer); In re McLean Indus., Inc., 196 B.R. 670 (S.D.N.Y.1996)(same); In re Loewen Group Int’l, Inc., 292 B.R. 522 (Bankr.D.Del.2003); In re Enron Corp., 340 B.R. 180 (Bankr.S.D.N.Y.2006).
E.
Claim No. 11 in the amount of $387.88 represents a $100.00 judgment, plus interest, against Benninger for her alleged failure to pay a court ordered sanction in the form of “counsel fees” to Cuneo. Cuneo alleges that this “sanction” was imposed against Benninger in an action filed by Cuneo against Benninger in Butler County. Benninger does not deny the basis of the claim but disputes that any amount is due. Benninger asserts that the sums Cuneo has collected as a result of his execution on the confessed judgments are sufficient to have paid this claim. The Court agrees, and finds that (a) Benninger has *360paid Cuneo in excess of $23,000 on account of the claims of Cuneo and that (b) such sums paid far exceed the alleged “sanction” claim. Because Claim No. 11 has been paid in full, the claim filed by Cuneo at Claim No. 11 is disallowed.
F.
Pursuant to the proof of claim filed at Claim No. 14, Cuneo seeks the allowance of an unliquidated claim based on a lawsuit pending in the Court of Common Pleas of Butler County at 2003-10409. The continued prosecution of this lawsuit has been enjoined by the automatic stay.
The civil complaint forming the basis of Claim No. 14 was not put into evidence in this matter, but Cuneo did advise the Court that the lawsuit is comprised of six (6) counts of tort. The Court is unaware of the basis of the tort causes of action or the status of the pending lawsuit because Cuneo failed to present any evidence regarding the substantive merits of his alleged causes of action. Having completely failed to do so, Cuneo has failed to adequately support this claim and accordingly Claim No. 14 is disallowed.
III. CONCLUSION
This Memorandum Opinion constitutes the Court’s findings of fact and conclusions of law pursuant to Fed.R. Bankr.P. 7052. It appears to the Court that at the time Benninger met Cuneo, Benninger was in a state of emotional as well as financial turmoil. She had lost her severely disabled son, Jayson, that she had cared for for eighteen years. Upon her son’s death, Benninger was grief stricken and vulnerable. As this Court views it, upon learning of Benninger’s circumstances, Cuneo devised a mechanism by which to profit from her unfortunate circumstances. In so doing, Cuneo took advantage of Benninger’s vulnerabilities, lack of sophistication and education. In Cuneo’s own words, it was a “comprehensive scheme” — a characterization with which this Court would agree. For the reasons expressed above, sufficient grounds exist to disallow each of the proofs of claim filed by Cuneo. These grounds include, but are not limited to, the unclean hands of Mr. Cuneo. As a result of this Court’s determination, the Court will enter an order which (a) sustains the Claims Objection, and (b) grants the Motion to Release Funds.
. The schedule of payments was as follows: February 1992 — $25,000; February 1997— $50,000; February 2002 — $100,000; February 2007 — $200,000; February 2012— $250,000; and February 2017 — $500,000. Resp. Ex. 6.
. Benninger entered into a settlement with her ex-husband regarding the annuity payments. Pursuant to the settlement, Benninger's ex-husband accepted a fixed dollar amount from the annuity proceeds in the amount of $6,000. Resp. Ex. 5, Estate Agreement.
. Cuneo testified that he learned of Benninger from a third party who indicated that she was interested in liquidating portions of an annuity contract. Cuneo then initiated contact with her for the purpose of discussing the annuity. Benninger was not sure how soon after she had started communicating with Peachtree that Cuneo entered the picture.
. Agreement, ¶ A.2.
. Id., ¶B.ll.
. Id., ¶ B.12.
. Id., ¶ B.16.
. Id., ¶ B.16.
. Id.
.Ttf. ¶ 33.e.
. Cuneo did not put into evidence any documentation supporting the garnishments, and the Court is without any evidence upon which it can conclude that the garnishments were valid.
. See also Motion for Relief From Automatic Stay and Adequate Protection [Docket No. 33, filed on October 20, 2005] at 1111 9 and 9(a) through 9(e).
. Benninger received the sum of $246,770.00 in exchange for transferring her rights to receive: (a) periodic monthly payments of $1,650.00 commencing May 2001 through April 2011 and (b) lump sum payments of $100,00.00 in February 2002 and $200,000.00 in February 2007.
. In exchange for selling her rights to receive periodic monthly payments of $100 of all monthly payments commencing July 1, 2003 through April 2011, $1,750.00 commencing May 2011 through January 2017 and to receive $247,125.06 of the lump sum payments of $250,00.00 in February 2012 and $500,000.00 in February 2017, Benninger received the sum of $168,000.00.
.Benninger sold her right to virtually all of the lump sum deferred payments and a portion of each monthly payment she is entitled to until 2017. The annuities funded by First Colony that were not sold are: the remaining portions of each monthly payment net of the $l,750.00/month sale to Settlement Capital. The remaining monthly amount will increase each year based upon an annuity schedule which provides for a 3% increase compounded annually. Beginning in 2001, the year of the first transfer to Settlement Capital, the gross monthly amount Benninger was to re*347ceive was $2,616.78. In 2016, the last year Benninger is to receive any payments, the total monthly amount she is to receive is $4,076.86. Accordingly, Benninger will continue to receive a net monthly amount of approximately $1,283.57 in 2006 increasing up to approximately $2,326.86 in 2016. Resp. Ex. 13, Ex. C to Purchase and Sale Agmt., p. 3.
. In July, 2005 First Colony Life Insurance Company ceased disbursing payments to the Debtor. Benninger asserts that the cessation was “by reason of the insurance company’s investigation of a creditor, in the case, Albert Cuneo, and the propriety of his attachment of those proceeds in the past.” Document, No. 43, Motion to Release Funds, ¶ 7.
. Cuneo’s confession of judgment(s) against Benninger appears to be suspect in many respects. For example, the confession of judgment clause found at ¶ 33.e is not conspicuously drafted. Lincoln Bank v. C & H Agency, Inc., 500 Pa. 294, 456 A.2d 136 (1982). In addition, while Cuneo has confessed judgment against Benninger on multiple occasions, the warrant of attorney contained in the Agreement does not appear to permit Cuneo to confess judgment repeatedly. See Agreement art 33.e. Pennsylvania law does allow for successive judgments to be confessed on the basis of a single instrument but only where the instrument so provides. See Pa. R.C.P. 2953(a). Questions also abound as to whether the commission amounts for which Cuneo confessed judgment were ascertainable from the Agreement. Under Pennsylvania law, the instrument must state with certainty the amount of the obligation to be confessed. See Std. Pa. Practice § 67.32. Finally, there is no evidence in the record of any meaningful breach or default by Benninger at the time the judgments were confessed. Where the instrument requires default or breach prior to the confession, judgment cannot be entered prior to the occurrence of the condition or limitation. Dollar Bank Fed. Sav. Bank v. Northwood Cheese Co., Inc., 431 Pa.Super. 541, 637 A.2d 309 (1994).
. Pa.R.C.P 2950 provides as follows:
As used in this chapter
"action” means a proceeding to enter a judgment by confession for money pursuant to an instrument, other than an instrument executed by a natural person in connection with a consumer credit transaction, authorizing such confession.
Note: The action is abolished insofar as it would apply to a confession of judgment which is part of an instrument executed in connection with a consumer credit transaction.
"consumer credit transaction” means a credit transaction in which the party to whom credit is offered or extended is a natural person and the money, property or services which are the subject of the transaction are primarily for personal, family or household purposes.
. The language of the Agreement is confusing, and it is not entirely clear that it does grant Cuneo a security interest in the annuities. In fact, the only grant contained in the Agreement states "[t]he party of the second part grants to the party of the first part a security interest in the property described herein.” Agreement, ¶ 16. The failure of Cuneo to adequately identify his collateral also is fatal to his claimed security interest. See e.g., In re Beransen, 152 B.R. 427 (Bankr.M.D.Pa.1993).
. In a previous filing with the Court, Cuneo strongly advised of this fact when a sanction was imposed upon him pursuant to Local Rule 5005-1 for failure to file electronically. The Court takes judicial notice of that filing at Document No. 74. Since the time of the Agreement and subsequent dispute, Cuneo apparently obtained a paralegal certificate on or about December 2001. Id.., Ex. pp. 4,5. Such certificate is not a license to practice law.
. See 11 U.S.C. § 502(b)(4), which disallows claims filed by attorneys and/or insiders of a debtor where such claims exceed the reasonable value of such services.
. Tr. at p. 133, Ins. 22-25; p. 134, Ins. 1-2.
. None of the claims filed at claims numbers 11, 12, 13 and 14 formed a basis of Cuneo’s alleged garnishment lien, as the garnishment purportedly occurred prior to the entry of these judgments.
. Paragraph 33.d of the Agreement states as follows:
If during the term or any subsequent term under this agreement, the party of the second part shall be adjudicated a bankrupt, or make a general assignment for the benefit of creditors, or to take the benefit of any insolvency act, or if a permanent receiver or trustee in bankruptcy be appointed for the property or financial interest, or if a temporary receiver be appointed for the property or financial interest, and such appointment of a temporary receiver be not vacated and set aside within 90 days of said appointment, or in the event of any attempted transfer or other devolution of the interests in the property or any part thereof of the of the party of the second party to any other person, corporation or legal entity by reason of the several acts of the party of the second part to avoid or dishonor payment of outstanding balances arising under the foregoing terms, conditions and understandings as more fully set forth herein, then in the event of any such default or breach of agreement by the party of the second part, the party of the first part shall have the right to declare the entire outstanding balance immediately due, and shall be entitled to additional sums under the theory of loss of bargain as same nay be construed or defined under statutory or common law. The party of the first part shall thereafter be entitled future consequential damages that are to be computed form the average aggregated fees charged or paid under the terms, conditions, descriptions and understandings set forth in this agreement.
. It has been determined that Cuneo was not the procuring cause of any sale, and therefore he is not entitled to any commission. Cuneo's claims at Claim No. 12 and Claim No. 13 seek payment on a hypothetical sale that never transpired. These claims are nothing but overreaching by the claimant as there is no basis in the Agreement for commission on amounts not received by Benninger! The claimant appears to want to "have his cake and eat it too.” | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487542/ | The Chancellor
then informed him, Peter Hitchins, that if his guardian account should be settled before the Chancellor that he, Hitchins, should never be allowed for maintenance, schooling, sickness, or any other account whatever, more than the interest of the child’s money; because the child could be maintained and schooled for that or less. And he pressed on Peter Hitchins to remember this before the guardian bond was signed; and that if he meant to claim any more, not to sign the bond, as he was now *470free from any obligation and need not accept the trust. And the Chancellor further said that he would not have removed Charles Smith from the guardianship, if the law had not obliged him. William Hamilton, the surety, hesitated a short time, on hearing this declaration of the Chancellor, signing the bond, but finally they both executed it, with full information of the determination of the Chancellor, if the account should ever come before him. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487543/ | JAMES POWELL, JOSEPH POWELL and GEORGE POWELL, Children and Devisees of John Powell, Infants under twenty-one years of age, by their Next Friend, William Nickerson v. THOMAS JONES and MARY, his Wife, late Mary Powell. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487544/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487546/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487547/ | Present: Ridgely, Chancellor, Johns, Chief Justice of the Supreme Court, Booth, Chief Justice of the Court of Common Pleas, Warner, Justice of the Court of Common Pleas, Davis, Justice of the Supreme Court, Cooper, Justice of the Court of 'Common Pleas and Paynter, Justice of the Supreme Court.
Way, Justice of the Court of Common Pleas, absent, sick. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487548/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487549/ | The jury found a special verdict, as follows:
That Hugh McDermot (McGarment), one of the lessors of the plaintiff in this cause, and Robert McDermot, otherwise called Robert McGarment, were brothers bom of the same parents in lawful wedlock. That they were both born in the Kingdom of Ireland now part of the United Kingdom of Great Britain and Ireland previous to the year 1776. That the said Robert McDermot was also called and known by the name of Robert McGarment. That previous to the year 1776 the said Robert left the Kingdom of Ireland and settled in Kent County in the State of Delaware, where he intermarried with (married) Mary Haslet. That he continued to reside in Kent County aforesaid in the state aforesaid from the time of his settlement there previous to the commencement of the American Revolution till his death which happened in the beginning of the year 1784. That he died seised and possessed of the lands and premises in controversy in this cause, and which now are, and at the time of the commencement of this suit were, in the possession of King Dougal, Richard Harrington, and Mary Cross. That he died intestate leaving no child or children, nor the *476issue of any. That his wife, the aforesaid Mary, survived him, and continued in possession of the aforesaid lands and premises until her death which happened in the year 1799. That after the death of the said Mary, upon the application of Joseph Haslet, who was the half-brother of the said Mary, and of George Monro and Jemima, his wife, which Jemima was the half-sister of the said Mary, the legislature of the State of Delaware, on the February 3,1802, passed a law entitled “An act to vest the title of two several parcels of land therein mentioned in Joseph Haslet and Jemima Monro,” whereby it was enacted that all the estate, right, title, interest, property, claim, and demand, whatsoever, then vested in the State of Delaware of in and to the tenements and lots of ground therein mentioned, and every part and parcel thereof, be the same more or less, with the appurtenances should be and the same was thereby vested in the said Joseph Haslet and Jemima Monro, their heirs and assigns in fee simple, as tenants in common, and not as joint tenants subject nevertheless etc. (front the said Act of Assembly). That the tenements and lots of ground mentioned in the said Act of Assembly are the same lands and premises in controversy in this cause, of which the said Robert McGarment died seised as aforesaid.
That on the April 9, 1802, the aforesaid Joseph Haslet and Mary his wife, and the said George Monro and Jemima his wife by their indenture of bargain and sale of that date duly acknowledged, did convey unto the aforesaid King Dougal one of the defendants in this cause, the several lots of ground therein mentioned and described (front the said indenture) and which lots on part of the lands and premises in controversy in this cause, whereof the said Robert McGarment died seised and possessed as aforesaid, and that the said King Dougal claims title thereto by virtue of the said indenture. That on the April 23, 1803, the aforesaid Joseph Haslet, and the said George Monro and Jemima, his wife, by their indenture of bargain and sale duly acknowledged did convey unto the aforesaid Richard Harrington, another of the defendants in this cause, the lots of land therein mentioned and described (front the said indenture) and which are part of the lands and premises in controversy in this cause, whereof the said Robert McGarment died seised and possessed as aforesaid, and that the said Richard Harrington claims title thereto by virtue of the said indenture. That the aforesaid Joseph Haslet by his certain writing obligatory commonly called an alienation bond bear*477ing date September 6,1803, did covenant to convey to a certain John Wilds the lot of ground situate in the village of Lewis Cross Roads, and in the same alienation bond more particularly mentioned and described (prout the said alienation bond). That the said lot in the said alienation bond mentioned is part of the lands and premises in controversy in this cause whereof the said Robert McGarment died seised and possessed as aforesaid. That the said John Wilds claimed title to the said lot under the alienation bond aforesaid, and that the said Mary Cross one of the defendants in this cause holds the possession of the said lot by lease from the said John Wilds, and went into the possession thereof as his tenant.
That previous to the passing of the aforesaid Act of Assembly, nothing was ever done on the part or behalf of the State of Delaware towards claiming the said lands and tenements, nor was anything excepting that Act ever done on behalf of the said State respecting the lands and premises.
That Hugh McDermot, one of the lessors of the plaintiff in this cause, is the brother of the aforesaid Robert McGarment. That the same Robert never had but one brother, the said Hugh, and only one sister who is now dead, but whether leaving issue or not the jurors are ignorant. That from his birth to the present time the said Hugh McDermot has always been and now is-a subject of the King of Great Britain. That the aforesaid Hugh McDermot was born in the said Kingdom of Ireland, to wit, at Knewell, in the Parish of Ballymoney in the County of Antrim, and from his birth hitherto has continued to reside, and now resides, in the United Kingdom of Great Britain and Ireland, excepting only that a short time after the decease of the aforesaid Robert McGarment, the said Hugh McDermot came to the State of Delaware seeking the property which fell to him by the decease of the said Robert and here continued for a few months. And that the said Hugh McDermot is a native born subject of the King of the United Kingdom of Great Britain and Ireland residing within his dominions. But whether upon the matter aforesaid, as aforesaid, etc. Judgment for the defendants. . . . 1
The report of this case is incomplete. Ridgely’s Notebook II, 400-401, was left blank for an opinion which was never entered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487553/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487554/ | On the application and consent of Mr. Reed for the plaintiff in error and Mr. Vandyke and Mr. Rogers, counsel for the defendant in error, the Court allows this cause to be continued, on account of the length of the session of the Court this term and the quantity of other important business before the Court. But it is understood that the consent of counsel for the continuance shall not be, and is not, a sufficient reason for a continuance. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487555/ | The Chancellor
said that it appears that Pemberton Car-lisle did not die in possession of this land. Priscilla, the widow, and the children of Charles Carlisle set up a title adverse to the other heirs of Pemberton Carlisle. This widow and the children of Charles were in possession before and at the death of Pemberton Carlisle, and they claim the land against Pemberton Car-lisle and his heirs. Now, though the devise to Charles may not avail his heirs, as Charles died before the testator, yet the heirs of Pemberton Carlisle ought to recover the possession of this land before they can proceed under the intestate laws to obtain a division of it. Pemberton Carlisle did not die the owner of it, that is, he was not seised and possessed of it at the time of his death, and until the heirs obtain the possession by proceedings at law or otherwise this Court cannot undertake to make a division of it. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487569/ | This case is continued until the next court, the defendant seeming not to be prepared to meet the exceptions. In this respect particularly where he has entered satisfaction to a judgment, and the money accounted for does not amount to the whole debt, as it appears on record, he is not able to show, or explain, whether there were any credits, or discounts, or why it is that the whole sum stated on the record was not received or accounted. The first exceptions generally relate to the judgments, and from this apparent difficulty, and a willingness of appellant to continue this cause, and an intimation from Mr. Weils, counsel for respondent, that in the future progress of the case, he may probably pray a continuance, and from an apprehension that wrong may be done, the case is continued. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494111/ | MEMORANDUM DECISION RE COMPLAINT
WILLIAM L. EDMONDS, Chief Judge.
The matter before the court is the final trial of the trustee’s complaint to determine the validity, priority or extent of liens and interests in certain property. He also objects to certain claims. Trial was held May 10, 2006 in Fort Dodge. Plaintiff Larry S. Eide appeared on his own behalf. Defendants Glenn Litwiller and Ethel Litwiller were represented by Robert Kohorst. Joseph E. Halbur appeared for defendants William Wollesen, Kristi Wollesen, William Wollesen and Kristi Wollesen as trustees of the William and Kristi Wollesen Revocable Trust Dated April 1, 1998, ByRite Farm Supply, Inc.1, and Greystone, Inc. (collectively “Wollesens”). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B) and (K).
Findings of Fact
In January 2000, debtors Robert Litwiller and Carolyn Litwiller owned about 446 acres of farmland in Section 30 of Bellville Township, Pocahontas County, Iowa (the “Farm”). They also had agreements to lease additional Pocahontas County farmland in 2000 from other owners.
Litwillers were in serious financial difficulty at the time. They owed mortgage debt of approximately $600,000 to First Bank & Trust Company, Lohrville, Iowa (“Bank”). They were also delinquent on operating loans for 1998 and 1999 owed to Pro Cooperative (“Pro Co-op”) in the principal amount of about $170,000.
In early January 2000, Robert Litwiller contacted William Wollesen by telephone to discuss leasing his farmland to Wollesen. Litwiller expressed a desire to receive cash rent as soon as possible. The two men reached an oral agreement to lease all of Litwillers’ farms for the 2000 crop year, a total of approximately 767 acres, to Wollesens for $112,000 cash rent. Wollesens paid this amount by check dated January 11, 2000.
Between November 30, 1999 and June 13, 2000, the United States Department of Agriculture, Commodity Credit Corporation, now known as the Farm Service Agency, issued five checks jointly payable to Robert Litwiller and Pro Co-op (the “FSA checks”). The FSA checks, in the aggregate amount of $13,524, represented advance farm program payments respecting farm land that had been leased to Wollesens.
Wollesens first learned of the FSA payments in the spring of 2000 when they attempted to enroll the leased acres in the farm program under their own names. They were advised by FSA that Litwillers were the operators of record and that the advance payments would have to be repaid *527before Wollesens could sign up for the program.
William Wollesen discussed the matter with Robert Litwiller, who said that he did not have the funds available to repay FSA. Litwillers had not yet cashed the checks, but because they were made jointly payable to Pro Co-op, Litwillers did not have exclusive control over returning them to FSA. Litwiller said that if he could pay down his debt to the Bank and get equipment released from the Bank’s lien, he could then sell the equipment and repay FSA. On or about May 3, 2000, Wollesen wrote a check for $25,000 payable to Robert Litwiller to permit the repayment to FSA. Litwillers did not repay the farm program payments to FSA. The FSA checks were not cashed and remain in the possession of plaintiff Larry Eide, Litwillers’ Chapter 7 trustee.
Wollesens had expected that their rights under the lease would include the right to receive the farm program payments respecting the land. In the summer of 2000, apparently after the deadline for changing the operator of record for that year with FSA, William Wollesen attempted to change the lease. There was some discussion that Greystone, Inc., a corporation owned by William Wollesen’s father, would lease the Farm from Litwillers for the 2000 crop year for $67,200 cash rent. On or about July 25, 2000, a lease document was prepared according to these terms, but it was not signed. William Wollesen’s father did not want to enter into the agreement.
William Wollesen said that at about this time he and Robert Litwiller discussed changing the transaction from a lease to a custom farming contract so that Wollesens would be custom operators rather than tenants. Litwillers deny that the lease was changed to a custom farming arrangement. On July 28, 2000, a financing statement was filed with the Iowa Secretary of State naming ByRite Farm Supply, Inc. as the secured party and Robert Litwiller as the sole debtor. The financing statement purported to cover—
All crops, whether annual or perinnial [sic] and the products thereof and all seed, fertilizer and other supplies used in borrowers [sic] farming operation.
Exhibit 106. Five parcels of real property covered by the financing statement were described on an attachment dated March 1, 2000 and signed only by Robert Litwiller. The property described may not be identical to the property subject to the oral lease. See Exhibit 121 (letter from Wollesens’ counsel dated February 15, 2001). No security agreement between ByRite and Robert Litwiller was introduced into evidence. The court finds that the parties did not execute a security agreement in connection with filing the financing statement. Wollesens did not do a lien search prior to filing the financing statement.
On October 11, 2000, Pro Co-op obtained judgment against Litwillers in the Iowa District Court for Pocahontas County, Equity No. 125183. Judgment was in the principal amount of $169,925.00, plus accrued interest as of August 8, 2000 in the amount of $41,771.79, plus interest on the principal balance from and after that date at the rate of ten percent.
During harvest in mid-October 2000, Wollesens learned that the crop from the property leased from Litwillers would be subject to a lien by Pro Co-op if the corn was the property of Litwillers.
On November 3, 2000, Wollesens and Litwillers executed a document titled “Real Estate Contract (Short Form)” (the “Contract”). Exhibit 103. The Contract, which was prepared by Wollesens’ attorney James R. Van Dyke, stated that *528Litwillers as Sellers agreed to sell and Wollesens as Buyers agreed to buy approximately 446 acres of real estate in Pocahontas County. This property was the Farm owned by Litwillers that was subject to Bank’s mortgage and Pro Coop’s judgment lien. The sale price was described as follows:
1. PRICE. The total purchase price for the Real Estate is nine hundred ninety-two thousand, two hundred dollars ($915,200.00)2 (sic) of which [see below] has been paid. Buyers shall pay the balance to Sellers at Pomeroy, Iowa, or as directed by Sellers, as follows:
(a) in the event Sellers comply with the conditions set forth herein, this Contract will be canceled and the real estate will revert to Sellers subject to a three-year lease (starting March 1, 2001) at $160 per tillable acre (416 tillable acres) per year, payable March 1, 2001 and each March 1 thereafter during the term of the lease, with an option in favor of Buyer to rent for an additional 2 years.
(b) The conditions that will lead to cancellation are that Seller will pay to Buyer the following:
(1) the $25,000.00 rental advance toward possible 2001 rent (or down payment advance) already paid by Buyer to Seller, plus 11.5% interest from the date of said advance which was May 10, 2000, said amount plus interest to be paid not later than March 1, 2001.
(2) an amount exactly equal to 100% of the year 2000 corn crop proceeds [except for Ronald Litwiler’s (sic) half of the corn from the 80 acres crop-share rented by Sellers from Ronald Litwiler (sic)], said amount to be paid immediately (within 24 hours) of the deposit of the said corn crop proceeds by Sellers.
(3) an amount exactly equal to 100% of the year 2000 LDP proceeds to be received by Sellers on all land on which Buyers or William or Kristi Wollesen individually, were custom farmers or lenders for crop inputs in 2000; said amount to be paid immediately (within 24 hours of the receipt of the said LDP proceeds by Sellers).
(4) the amount of $30,982.75, plus interest at the rate of 11.5% from November 1, 2000. Said amount plus interest at 11.5% from November 1, 2000, is to be paid not later than March 1, 2001.
(5) any additional government program proceeds that may be received by Sellers from the year 2000 program, to be paid to Buyers immediately (within 24 hours of receipt).
(6)reimbursement to Buyers for title opinions of $375.00 and abstracting costs of $523.75, to be paid with interest at 11.5% from date paid by Buyers, said reimbursement not later than December 1, 2000.
(7) reimbursement to Buyers for crop expenses advanced in the amount of $4,552.99, plus interest at the rate of 11.5% from July 1, 2000, said amount plus interest to be paid not later than March 1, 2001.
(8) reimbursement to Buyers for tillage on 151.6 acres and 122.3 acres @ $20 per acre or a total of $5,478.00 plus interest at 11.5% from November 15, 2000, said amount plus interest to be paid not later than March 1, 2001.*
(c)The amounts calculated according to paragraphs 1, 4, 5, 6, 7 and 8* above, if paid on or before the due dates specified, will be applied to cash rent for the land for the year 2001. If any or all of the amounts in paragraphs 1 through 8 *529are not paid in full by the due dates specified, then all the amounts calculated according to paragraphs 1 through 8 will be credited to the down payment.
'"reimbursement for tillage is due only if Sellers do not rent either or both the 151.6 crop acre farm or the 122.3 crop acre farm for the crop year 2001.
The balance shall be paid with interest annually on or before March 1 of each year beginning March 1, 2002, in level payments on a 25-year amortization schedule; however, Buyers may prepay the entire unpaid balance by March 1, 2001, after deducting all the amounts set forth immediately above, and only in the event Sellers have not performed all the above conditions which, as stated, will result in cancellation of this contract.
In the event Sellers contest this contract or breach it in any respect, Sellers shall pay Buyers’ attorney fees and costs in the form of a reduction of contract principal equal to the amount of such attorney fees and costs.
Exhibit 103. The unpaid balance of the purchase price under the Contract would accrue interest at the rate of 7.5%. Id. at ¶ 2.
Appraiser Rowland Burton valued the Farm as of April 12, 2006 at $1,476,000. Using the 2006 appraisal and the Iowa Land Value Survey, Burton estimated that the value of the Farm as of November 3, 2000 was $968,000. Wollesens contend that the historic valuation should be reduced by about $86,000 to account for grain bins that were placed on the property after 2000. The court takes judicial notice that in a May 2002 hearing on Litwillers’ homestead exemption claim, a Bank loan officer estimated the value of the Farm at $1.2 million. In re Litwiller, No. 01-03520F, slip op. at 3 (Bankr.N.D.Iowa July 2, 2002) (Doc. 55). The court concludes that a finding of the value of the Farm as of November 3, 2000 is not essential to this decision.
William Wollesen attempted at trial to identify the items making up the down payment under the Contract. The “$25,-000.00 rental advance” in paragraph (b)(1) was the amount Wollesens loaned Litwillers in May 2000 to permit repayment of the FSA advances. There was no evidence to show whether Litwillers received the property referenced in paragraph (b)(3), LDP payments for 2000, or paragraph (b)(5), any additional government payments for the 2000 farm program. Although Wollesens obtained a title opinion and had the abstract updated, as evidenced by paragraph (b)(6), a groundwater hazard statement was not prepared for the transaction evidenced by the Contract. Item (b)(7), $4,552.99 for crop expenses incurred July 1, 2000, is apparently half of the amount claimed due for inputs on a farm owned by Ronald Litwiller. See Claim No. 22, Invoice No.1904. Paragraph (b)(8) refers to “tillage on 151.6 acres and 122.3 acres.” These acres are not included in the 446 acres that are the subject of the Contract. They are the tillable acres on two additional farms Wollesens had subleased from Litwillers.
Item (b)(4), “the amount of $30,982.75, plus interest at the rate of 11.5% from November 1, 2000,” was not adequately identified. Wollesens suggested that item (b)(4) was a duplicate of item (b)(1) with accrued interest, but as Eide pointed out in his post-trial brief, this explanation would require an interest rate of about 48%. Doc. 88 at 19. One would think, comparing item (b)(4) to item (b)(1), that the amount of $30,982.75 was advanced by Wollesens on November 1, 2000; however, no one said that such amount was advanced. The court concludes that the failure to identify this item does not affect the outcome of the decision.
*530On November 3, 2000, the same date that the Contract was executed, Litwillers as landlords and Wollesens as tenants executed lease forms for lease of three farms beginning March 1, 2001. Two of the leases were for the farms not owned by Litwillers but subleased from them. Exhibit 101 relates to 122.3 tillable acres in Section 34 in Bellville Township, Pocahontas County; Exhibit 102 is a lease for 151.6 tillable acres in Section 19 of the same township. Exhibit 100 is the lease for the 416 tillable acres of the approximately 446 acres then owned by Litwillers. Paragraph 19 of the lease form referred to “attached Additional Provisions.” The last page of the lease document contained the following list:
ADDITIONAL CONSIDERATIONS
(1) the $25,000.00 rental advance toward possible 2001 rent was already paid by Tenant to Landlord, and will be credited toward rent for 2001 or later years, plus 11.5% interest from the date of said advance which was May 10, 2000.
(2) the amount of $30,982.75, plus interest at the rate of 11.5% from November 1, 2000 is also to be credited toward rent for 2001 or later years.
(3) any additional government program proceeds that may be received by Landlord after October 19, 2000, from the year 2000 program are to be credited toward the rent for 2001 or later years.
(4) reimbursement to Tenants for title opinions of $375.00 and abstracting costs of $523.75, with interest at 11.5% from date paid by Tenants, to be credited toward Tenants’ rent for 2001 or later years.
(5) reimbursement to Tenants for crop expenses advanced in the amount of $4,552.99, plus interest at the rate of 11.5% from July 1, 2000, said amount plus interest to be credited toward Tenants’ rent for 2001 or later years.
(6)reimbursement to Tenants for tillage on 151.6 acres and 122.3 acres @ $20 per acre or a total of $5,478.00 plus interest at 11.5% from November 15, 2000, said amount to be credited toward Tenants’ rent for 2001 or later years.*
*reimbursement for tillage is due only if Landlords do not rent either or both the 151.6 crop acre farm or the 122.3 crop acre farm for the crop year 2001.
Exhibit 100.
Also on November 3, 2000, Glenn and Ethel Litwiller, the parents of Robert Litwiller, assigned their rights in a September 1999 mortgage in the 446 acres to Wollesens for no consideration (the “Assignment”). On November 9, the Contract and Assignment were filed with the office of the Pocahontas County Recorder. Exhibits 103,112.
One of the real estate parcels farmed by Wollesens in 2000 was owned by the Nelles Trust. The fall installment of rent owing on the Nelles Trust property was unpaid on November 9, 2000. Litwillers confessed judgment for $5,740 in favor of Wollesens. On November 9, 2000, the Confession of Judgment was filed in the Iowa District Court for Pocahontas County, Case No. TJTJ 125009. Sometime between February 7 and July 3, 2001, this debt was satisfied from the 2000 corn crop. See Exhibits C, D.
Wollesens delivered the harvested corn to NEW Cooperative (“NEW Co-op”) at locations in Pocahontas and Calhoun Counties. Most of the grain from the farms leased from Litwillers was delivered to NEW Co-op from October 11 through October 17, 2000. Grain settlement sheets were issued in the name of Bill and Kris Wollesen. At some point Wollesens attempted to transfer the corn to the name of Robert Litwiller. By November 6, *5312000, NEW Co-op was aware of a claim by Pro Co-op to grain coming from the Litwiller farms. Because of competing claims to the crops, NEW Co-op stored the grain and, on November 17, 2006, issued warehouse receipts in the name of Bill and Kris Wollesen. Warehouse receipt 44694 was issued for 9,844.89 net bushels of corn delivered to Palmer, Iowa. Warehouse receipt 44695 was issued for 121,361.13 net bushels of corn delivered to Pomeroy, Iowa. Exhibit B. By letter dated February 7, 2001, NEW Co-op advised Wollesens and Litwillers that the grain had been warehoused and that the Co-op had “decided to let the courts figure out what grain belongs to who.” Exhibits B, C.
On February 16, 2001, Pro Co-op filed a petition for declaratory judgment in the Iowa District Court for Pocahontas County, Equity No. 307716, to resolve the competing claims to the warehoused crop. In approximately August 2001, Wollesens purchased Pro Co-op’s rights against Litwillers. The grain was still being warehoused when Litwillers filed a voluntary Chapter 7 petition on October 16, 2001. Post-petition efforts were made to have the grain sold. See Exhibits E, G. On or about January 6, 2005, the 2000 crop was sold. Storage charges totaling $192,969.09 were subtracted from the gross sale price. NEW Co-op issued a check in the amount of $11,296.62 payable to Bill & Kris Wollesen. Exhibit K.
On May 11, 2001, Bank filed an action in the Iowa District Court for Pocahontas County to foreclose its mortgages on the Farm. Litwillers were named defendants in the action as mortgagors of the property; Pro Co-op and Farm Credit Leasing Services Corporation were so named as judgment creditors. Wollesens were defendants in the proceedings by virtue of the recorded Contract, the recorded mortgage Assignment from Glenn and Ethel Litwiller, and the November 9, 2000 confession of judgment and additionally, on August 16, 2001, as purchasers of Pro Coop’s rights against Litwillers. On September 13, 2001, the Iowa District Court rendered judgment in rem in favor of Bank in the amount of $756,605.56 plus interest and costs, and a decree of foreclosure against the Farm. The court’s findings of fact included the following statement:
The interest of Defendants, William S. Wollesen and Kristi J. Wollesen, William and Kristi Revocable Trust dated April 1, 1998, and Farm Credit Leasing Services Corporation, are that of a[sic] lien holders, whose liens are junior and inferior to the lien of Plaintiffs Mortgage.
Exhibit 121, Decree of Foreclosure at 5.
The sheriffs sale of the Farm was held March 6, 2002. Bank, as the successful bidder at the sale, obtained a sheriffs certificate of purchase of the Farm. On June 28, 2002, Wollesens paid $808,035.10 directly to Bank for assignment of the sheriffs certificate of purchase. On July 12, 2002, Wollesens filed an Affidavit of Indebtedness Owed to Redeeming Creditor pursuant to Iowa Code § 628.18. The affidavit identified Wollesens as “assignees of the judgment lien and other claims held by Pro Cooperative.” Exhibit 110, ¶ 3. The affidavit stated:
As of June 28, 2002, the indebtedness owed to the Wollesens as assignee of Pro Cooperative pursuant to the judgment entered on October 11, 2000 in Case No. EQCV 125183 was $243,726.49, with per diem interest accruing thereafter in the amount of $46.5548.
Id., ¶ 9. The affidavit set out the calculation of the amount of indebtedness based on Pro Co-op’s judgment plus interest through June 28, 2002.
The decree of foreclosure originally established a six-month redemption period. Wollesens expected that they would re*532ceive a sheriffs deed on September 6, 2002. By order of September 5, the Iowa District Court for Pocahontas County stayed running of the decretal redemption period pending further hearing. The court recognized that a remaining issue was “the effect of the equitable conversion” arising from Wollesens’ Contract; this issue was not resolved in state court. On September 17, the Iowa District Court determined that Wollesens’ redemption was valid and modified the decree to provide for a one-year redemption period. The court further ordered: “Any right of redemption held by the Litwillers or Eide, as bankruptcy trustee, shall expire on March 5, 2003, pursuant to Iowa Code section 628.3.”
On December 16, 2002, more than nine months after the date of the sheriffs sale, Wollesens filed an Affidavit and Notice of Credit on Lien pursuant to Iowa Code § 628.19 stating that they were willing to credit the debtors in the amount of $875,000. The one-year redemption period expired with no further redemptions. On March 12, 2003, Wollesens received a sheriffs deed to the Farm.
Litwillers filed their Chapter 7 bankruptcy petition on October 16, 2001. No receiver was appointed in Bank’s foreclosure action filed May 11, 2001. The stay was lifted in the case to permit Bank to complete the sheriffs sale of the Farm.
At the time of the bankruptcy filing, Wollesens were farming Litwillers’ farmland including the Farm. They did not make rent payments for 2001. Chapter 7 trustee Eide demanded from Wollesens $67,200 for rent due March 1, 2002. In April 2002, Wollesens paid $60,320 to the trustee with the notation “contract payment” on the check.
On February 28, 2002, a claim for $225,000 was filed in the name of Glenn and Ethel Litwiller (“Claim No. 12”). The proof of claim form was not signed. The form indicated that the claim was secured by real estate, but there were no documents of explanation filed with the claim form. Glenn and Ethel Litwiller did not file Claim No. 12.
On April 30, 2002, Wollesens filed three claims. A claim for $223,167.58, designated Claim No. 21 by the clerk of court, was filed in the name of “Bill & Kris Wollesen and/or William & Kristi Wollesen Revocable Trust As Assignees of Pro Cooperative.” The Wollesens claimed that this debt was secured by the FSA checks in the possession of Eide, the 2000 corn crop and other property.
Claim No. 22 was filed by ByRite Farm Supply, a corporation owned by Wollesens. The claim for $123,798.06 indicated it was for 2000 crop inputs and was secured by the crop. The amount of the claim was the sum of two invoices plus interest at the rate of 12.5% to the date of the bankruptcy filing. The first invoice, unnumbered but dated April 20, 2000, was in the amount of $96,495.77 for fertilizer and herbicide on 730.6 acres and 280 bags of seed corn. The second invoice, also for fertilizer, herbicide and seed corn, was invoice No.1904 dated July 25, 2000, in the amount of $9,105.98. The latter invoice, addressed to Robert Litwiller and his brother Ronald, was for inputs on a farm owned by Ronald Litwiller. Robert had leased the farm from Ronald for a fifty percent share of the crop with the agreement that each would pay fifty percent of the crop input expenses.
Wollesens also filed Claim No. 23 in the amount of $206,952.49. This sum was the total of three figures: the $112,000 rent payment made January 11, 2000, described as “monies loaned;” the $25,000 loan made May 3, 2000 to permit repayment of the FSA checks; and about $61,500 plus inter*533est for labor to plant, cultivate and harvest crops on the farms leased from Litwillers. Invoice No. 305, dated June 20, 2000, and invoice No. 306, dated November 1, 2000, were for farm labor on 767.3 acres. Invoice No. 307, dated November 1, 2000, was for labor on the farm owned by Ronald Litwiller. Robert and Carolyn Litwiller said that in 2000 they received none of the invoices attached to Claim Nos. 22 and 23.
Discussion
Eide as Chapter 7 trustee filed his complaint October 1, 2003 to determine the respective rights of the parties in the five FSA checks in his possession, approximately 126,354.36 bushels of corn in storage at NEW Co-op, and funds in the amount of $60,320 received from Wollesens in April 2002. The corn has since been sold and Wollesens received the proceeds. Eide now takes the position that the corn proceeds belong to Wollesens. Therefore, the remaining items of property in dispute are the FSA checks and the funds in the amount of $60,320. The trustee also objects to the allowance of Claim Nos. 12, 21, 22, and 23.
Resolution of this matter depends largely upon the nature of two transactions between Wollesens and Litwillers. The first issues are (1) whether in 2000 Wollesens were farming the farmland at issue under a lease or a custom farming arrangement and (2) whether the November 3, 2000 Contract effected a sale of the Farm to Wollesens prior to the date of Litwillers’ bankruptcy petition.
Lease or Custom Farming Arrangement
Even though the agreement was never committed to writing, there is no dispute that in January 2000 Wollesens agreed to lease Litwillers’ farmland. The payment of $112,000 on January 11, 2000 was for 2000 rent. There are no documents expressly evidencing an agreement to change the terms of Wollesens’ use of the farmland. William Wollesen said his discussions with Robert Litwiller about changing the lease to a custom farming contract took place in late July 2000. One of the invoices attached to ByRite’s claim for crop inputs, Claim No. 22, is dated April 20, 2000. Litwillers denied receiving either of the invoices from ByRite or the invoices for labor attached to Wollesens’ Claim No. 23.
ByRite obtained a financing statement from Robert Litwiller, Exhibit 106, but there is no underlying security agreement. Litwillers would have had to sign a security agreement in order for a security interest to attach in favor of ByRite. See Iowa Code § 554.9203 (2000); Forker v. Duenow Mgmt. Corp., 227 B.R. 153, 160 (8th Cir. BAP 1998) (proof of existence of security agreement requires affirmative evidence). The Form UCC-1 itself did not create a security interest. Wollesens undoubtedly wanted to secure repayment of debt, but the financing statement is ambiguous as to what debt was being secured. There is no dispute that Wollesens’ payment of $25,000 in May was a loan, but the financing statement does not show an agreement to change the $112,000 rent payment into a loan. The court concludes that Wollesens farmed Litwillers’ farmland in 2000 under a lease.
As tenants under a lease, Wollesens owned the corn crop at issue. They are entitled to the proceeds of the crop evidenced by the check from NEW Co-op. Exhibit K. Moreover, Wollesens as tenants were liable for their own inputs and labor for farming Litwillers’ land in 2000. Claim No. 22 for crop inputs provided by ByRite should be disallowed in its entirety. The amounts included in Claim No. 23 for farm labor and repayment of rent should be disallowed.
*534
November S, 2000 Contract
Eide contends that the Contract was an equitable mortgage. A transaction involving the transfer of real property may be deemed a mortgage if it is shown by clear and convincing evidence that the instrument was intended as security for debt. Steckelberg v. Randolph, 404 N.W.2d 144, 148 (Iowa 1987); Greene v. Bride & Son Construction Co., 252 Iowa 220, 226-27, 106 N.W.2d 603, 607-08 (1960). In order for a deed or real estate contract to be deemed a mortgage, the party asserting an equitable mortgage must show “(1) That the consideration for the [instrument] was an existing indebtedness, together with the amount of such indebtedness; and (2) that such indebtedness was not extinguished by the conveyance, but was kept alive.” Steckelberg v. Randolph, 404 N.W.2d at 148; Greene v. Bride & Son, 252 Iowa at 224, 106 N.W.2d at 606.
Other factors may support the finding of an equitable mortgage. “[T]he execution and delivery of an option to repurchase, the unavailability of legal advice for the grantor, and financial hardship as an inducement to the grantor in entering the agreement, all constitute classic circumstances pointing to a debtor-creditor relationship.” Steckelberg v. Randolph, 404 N.W.2d at 149. Iowa courts are reluctant to construe an agreement that continues a debtor-creditor relationship as an absolute conveyance. If it is unclear what the parties intended, the court should “resolve the doubt in favor of an equitable mortgage.” Id.; see also Greene v. Bride & Son, 252 Iowa at 226-27, 106 N.W.2d at 607 (“absolute deed accompanied by a contract to reconvey on specified conditions ... will be construed to be a mortgage rather than a privilege to repurchase or a conditional sale”); Cullen v. Butterfield, 178 Iowa 621, 160 N.W. 125, 129 (1916) (“If there be doubt on the question, courts almost universally hold that the transaction should be construed to be a mortgage, and not a conditional sale.”)
The facts of this case show that the Contract between Litwillers and Wollesens should be deemed a mortgage. Litwillers were in a desperate financial situation at the time of entering into the Contract, and their situation was an inducement to enter into the agreement. There was no contemporaneous exchange of consideration for the Contract. The down payment under the Contract was described in a list of existing debts and obligations. The Contract was subject to cancellation if Litwillers as Sellers repaid the down payment. Litwillers did not have separate counsel during the negotiation and execution of the documents.
The parties executed the Contract on the same date that they executed a lease of the same property. Under the lease, nearly all the debts and obligations making up the down payment under the Contract were to be credited toward rent of the Farm for 2001. Exhibit 100, attachment. Therefore, contrary to paragraph (l)(b) of the Contract, cancellation of the Contract would not necessarily require repayment of the entire down payment. It appears that the parties’ intent was for Wollesens to rent Litwillers’ farmland in 2001. The Contract seems designed to secure the repayment of existing debt and the receipt of what Wollesens would have been entitled to receive if the 2000 farm lease had been performed conventionally, that is, the crop and government payments.
An equitable mortgage in the form of a conditional sale does not become a sale upon the grantor’s failure to perform the condition. “If the transaction was a loan in the first instance, it will be treated as such to the end, unless it be shown that the parties afterwards bar*535gained for the property independently of the loan.” Greene v. Bride & Son, 252 Iowa at 224, 106 N.W.2d at 606; see also Richardson v. Barrick, 16 Iowa 407, 1864 WL 206 at *2 (“it is a universal rule in equity that once a mortgage, always a mortgage”). Litwillers’ failure to make the payments due March 1, 2001, did not effect a transfer of the equitable title to Wollesens. Litwillers retained redemption rights in the property which were not foreclosed. Cullen v. Butterfield, 178 Iowa 621, 160 N.W. at 129; Fort v. Colby, 165 Iowa 95, 144 N.W. 393, 403 (1913) (“the equitable right of redemption after default is preserved, remains in full force, and will be protected and enforced by a court of equity”); Richardson v. Barrick, 16 Iowa 407, 1864 WL 206 at *2 (“the equity of redemption is inseparable from [a mortgage], and every attempt to limit or defeat that right must fail”).
The determination of the parties’ respective rights in the property was subsumed by Bank’s foreclosure action filed in May 2001. When Litwillers filed their bankruptcy petition on October 16, 2001, all their legal and equitable interests in property became property of their bankruptcy estate. 11 U.S.C. § 541(a)(1). No receiver was appointed in the foreclosure proceedings. Litwillers’ redemption rights were not extinguished until March 2003. In the spring of 2002, Litwillers still held equitable title to the Farm, and the trustee was entitled to collect rent from Wollesens. The $60,320 being held by the trustee belongs to the estate.
Although Wollesens farmed Litwillers’ farmland in 2001, they did not make rent payments that year. The Contract and farm lease for 2001, Exhibit 100, contemplated that certain advances, including the May 2000 loan of $25,000, would be treated as advance payment of farm rent. The $25,000 loan should be deemed credited toward 2001 rent, and its allowance as part of Claim No. 23 should be denied. The remainder of Claim No. 23 is not the debt of Litwillers’ as discussed above. Therefore, Claim No. 23 should be disallowed in its entirety.
On December 16, 2002, Wollesens filed an affidavit under Iowa Code § 628.19, crediting debtors with $875,000. They had paid Bank the funds needed to redeem on June 28, 2002. Under Chapter 628 of the Iowa Code, it appears that a redemptor is expected to file an affidavit pursuant to § 628.18 and § 628.19 at substantially the same time that the funds to redeem are deposited with the clerk. See Lee B. Blum, Iowa Statutory Redemption after Mortgage Foreclosure, 35 Iowa L.Rev. 72, 75 (1949) (describing method of redemption); Eliason v. Stephens, 216 Iowa 601, 246 N.W. 771, 775 (1933) (same under 1931 Code). Wollesens expressed an intent in September 2002 to take the property in satisfaction of the claim acquired from Pro Co-op. The period for redemption by creditors expired nine months after the sheriffs sale on December 6, 2002. Iowa Code § 628.5. Statutory redemption must be exercised “within the period, and in the manner, prescribed by the statute creating it.” Central State Bank v. Lord, 204 Iowa 439, 215 N.W. 716, 718 (1927). Wollesens’ filing on December 16, 2002 was too late.
“[T]he redeeming creditor’s lien, and the claim out of which it arose, will be held to be extinguished, unless the redeeming creditor pursues the course pointed out in sections 628.18 to 628.20, inclusive.” Iowa Code § 628.17. Wollesens’ claim based on rights acquired from Pro Co-op was extinguished for failure to file a timely affidavit pursuant to 628.19. They are held to have taken the property in satisfaction of their claim. Meredith, Dickey & Co. v. Peterson, 108 Iowa 551, 79 N.W. 351, 352 (1899). Therefore, Claim No. 21 should be disal*536lowed in its entirety. Moreover, because there is no underlying Pro Co-op debt to encumber them, the FSA checks are property of the estate free of any interests of the defendants.
Claim No. 12, filed in the name of Glenn and Ethel Litwiller for $225,000, should be denied in its entirety. Litwillers deny having filed it, and the proof of claim form was not signed. Rule 3001(b).
IT IS ORDERED that the corn proceeds represented by NEW Cooperative check No. 218429 in the amount of $11,296.62 are the property of William Wollesen and Kristi Wollesen, free of any interests of plaintiff-trustee Eide or Litwillers.
IT IS FURTHER ORDERED that the FSA checks in the aggregate amount of $13,524 and funds in the amount of $60,320 are property of the estate, free of any interests of Wollesens or Litwillers.
IT IS FURTHER ORDERED that Claim Nos. 12, 21, 22 and 23 are disallowed.
. Defendant ByRite Farm Supply, Inc. is a corporation controlled by William Wollesen and Kristi Wollesen. The court will use the spelling of the corporation's name as shown in Wollesen’s Exhibit 106.
. William Wollesen said that the purchase price was $915,200.00 and that the price of "nine hundred ninety-two thousand, two hundred dollars" is incorrect. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487558/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487559/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487561/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487562/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487563/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487564/ | The Chancellor.
It appears by the recital in the deed of conveyance, dated January 16, 1804, made by William Hanzor and Rachel, his mother, to Mr. Stout, that Nehemiah Hanzor, being seised in fee of the land in question, devised the same in fee tail to William Hanzor, now deceased. William, the son, married Susan, one of the petitioners, and was married to her at and before January 16, 1804, the date of the deed. Rachel was the widow of the. testator, Nehemiah, and was endowed of the land devised as aforesaid. During such endowment the deed *536was made, and she survived her son William. Susan, the petitioner, the wife of William, did not join in the deed to Mr: Stout.
The defense, that the land was covered with judgments at the time of the conveyance and that Mr. Stout paid the full value thereof, will not avail. It is the sale of land by legal process which bars the wife, and not the liens or encumbrances. Debts may be paid off. The sale only divests the title; and until the title of the husband is thus divested, the wife’s right to dower could not be defeated. The Act of Assembly [1 Del.Laws 109] subjects all lands to sale for the payment of debts; and it is by that Act that the wife of a man seised of land becomes divested. The Act of Assembly of 1816 [5 Del.Laws 174] gives the jurisdiction here. But in this case a sale could not have divested the wife, because her husband was seised only of an estate in tail. A sale would have given to the purchaser a title no longer than during the life of the tenant in tail. The estate in tail could be barred only by the deed, or by a common recovery; but in neither could the wife be barred of her dower, unless she had joined in the deed or had been a party to the common recovery. There is no pretense to say that the purchaser may stand in the place of judgment creditors, because they could not have barred the estate in tail by any legal process and have divested the wife; and now they cannot in any form proceed; neither could they, if the land had not been conveyed as aforesaid after the death of the tenant in tail.
There is nothing to bar the petitioner of her dower in such land as her husband had been seised of and conveyed. But she cannot be endowed of the endowment of Rachel, the widow of the testator. Her husband was not seised of that in his lifetime; for during his life the widow Rachel interposed. Dos de dote non peti debet.
The following is the form of the judgment:
And now, to wit, this first day of March, 1820, the said petition coming on to be heard before the Court, and the allegations and. proofs of the parties being heard examined and considered, this Court thinks fit to order, adjudge, and decree, and it is ordered, adjudged, and decreed by the Court, that the said George Durham and Susan, his wife, in right of the said Susan (which said Susan was the widow of said William Hanzor) do recover the dower of her, the said Susan, in two third parts of the land and premises mentioned in the said petition; Rachel Hanzor, who was widow of Nehemiah Hanzor, father of the said William, by which said Nehemiah the land and premises aforesaid were *537devised to said William in fee tail, being endowed of the said other third part of said land and premises in the life time of said William, and at the time of his death. And that the said dower be assigned and laid off to the said George Durham and Susan, his wife, in right of the said Susan. And it is farther ordered and decreed by the Court that an order be directed to Jacob Biddle, Charles Kimmey, John McCoy, Joseph Barber and Mins Casson, freeholders, to assign and lay off the said dower. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487565/ | The Chancellor.
(March 15,1820.) It appears from the evidence in this cause that the petitioner, Nancy Dixon, eloped from her husband in 1811 or 1812. It probably was in the latter end of the first, or in the beginning of the second of those years. She continued absent until after November, 1814. In that month Mr. Elligood saw her in jail in Kent County. She continued ¿b-sent from her husband during his lifetime, after her first elopement. Her husband advertised her, that is, gave notice that he would not pay any debts which she might contract. She not only eloped from her husband, but she left her own child, which was then a small infant. The husband died in May, 1813.
James Finsthwait saw this woman in Kent, where she passed under the name of Elizabeth Saunders, and knew her there a year and a half or two years. Mr. Latterfield also knew her by her assumed name in Kent, and for the same period of time. *538They speak of the years 1812, 1813, and 1814. Other witnesses speak of her in Kent in 1813. The evidence satisfies me that, before the death of her husband, she eloped from him and continued away from the time of her first elopement until after his death, and that he was never reconciled to her.
As to the adultery during the life of her husband after her elopement, there is no positive evidence of the fact. But the testimony of her loose, disorderly conduct [is] so entirely unbecoming a married woman, or a chaste woman, that the conclusion inevitably follows that she was guilty of adultery, and that she lived in a state of adultery in Kent County during the life of her husband. Her conduct at the house of John Finsthwait, which I presume was the latter part of 1812, was too glaring to admit of any hesitation in believing in her guilt. Then her living with Rachel Lane and afterwards with Jacob Fleming corroborate every presumption which can be made against her antecedently to her attaching herself to Fleming. She was seen in bed with Fleming, when, if her husband were then dead, she did not know, but from the evidence it is to be presumed that she had lain with Fleming before her husband’s death. In a state of drunkenness she was also seen on a bed with Clement Simpson in July, 1813, before she knew of her husband’s death. From all these circumstances I am satisfied that she eloped from her husband and lived and remained in a state of adultery in his lifetime and was never reconciled to him. (See 2 Bac.Abr., title, “Dower”, F; 3 Com.Dig. 542, F2; Co.Litt. 32a; 2 Co.Inst. 435; Dyer 106b; 3 P.Wms. 272, Sydney v. Sydney.)
The Act of Assembly (5 Del.Laws 174) was not designed to alter any right which a woman has to dower at common law, nor any of the requisites to the consummation of dower, viz.,, marriage, seisin, and the death of the husband. Neither was it intended to remove any bar to her dower created by the Statute, Will. II, c. 34, (13 Edw. I, c. 34). But it was intended merely to secure her dower in certain cases of debts, contrary to former Acts of Assembly, and to provide a more expeditious and cheap, mode of recovering her dower. Without much consideration of the subject, it seems to me that this Act gives a woman a right to dower exactly as at common law, saving the exceptions therein mentioned of debts; whereas our Intestate Act, in the case of an intestacy, gives the woman dower of all lands, tenements and hereditaments of which a man shall be owner at the time of his death. A very wide difference. However the Act of 1816 (5 Del.Laws 174) removes none of the bars to dower which the Statute Will. II, c. 34, created, and the petition must be dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487566/ | The Chancellor.
For so much of the tract of land called “Bite the Biter” as is included in the part assigned to Curtis Jacobs, and to which Curtis Jacobs has a title paramount [to] that of Isaac Cannon deceased, the division is unequal. It appears from the testimony of William Neal that there are fifteen or twenty acres of this land. This part of “Bite the Biter” fell into the possession of Isaac Cannon by his being guardian of Daniel Adams. He changed the fences for his own convenience and left them so at his death. Daniel Adams never disturbed this holding. The widow of Isaac Cannon being his mother by a former husband, and he being willing to accommodate her, he afterwards agreed for the sale of this land to Curtis Jacobs, for which Jacobs has paid him. In this respect then the division is unequal, the other heirs having received an equivalent for these fifteen or twenty acres which never were owned by the intestate, Isaac Cannon.
As to the parcel of land which Jacobs claims as part of “Sam’s Horsey’s Swamp,” as part of “Little Cosher,” it does not belong to Curtis Jacobs to object, although he claims such parcel by the deed of William Laws and wife. It lies in the part assigned to Noah Ross and wife, and it might be an objection in his mouth, but not in Jacobs. However, as to this land the title of Jacobs is not so apparent as to be sufficient to overthrow the division on what now.appears. Jacobs bought in Laws’ title last January after the proceedings commenced in this division. He was holder of part of this Cannon land, and this title of Laws is a mere dormant one, and therefore Jacobs should be considered a trustee for the other heirs; more especially as the freeholders went on this land the 12th October last, and the survey was made in the same month, and the division is dated in the same October, although probably not signed until after January. All this indicates something like an intention in Jacobs to frustrate this division by buying in and setting up a dormant title in January last. At the best, Jacobs should therefore be considered merely as a trustee for the other heirs and himself.
On account of this part of the tract called “Bite the Biter” being included in Jacobs share, and the other heirs receiving an equivalent there from this division, this division is not approved, and a review shall be ordered; and on the return the Court will examine both and will adopt such as shall be then approved. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487567/ | *542Judgment:
And now, to wit, this eighth day of March, 1821, the said petition coming on to be heard before the Court, and the allegations and proofs of the parties being heard, examined, and considered by the Court, this Court thinks fit to order adjudge and decree, and it is ordered adjudged and decreed by the Court that the said Mary Marshall, widow of said Samuel Marshall, do recover the dower of her the said Mary in one dwelling-house, and smoke-house, and in a certain lot of ground situate lying and being in the town of Lewes, fronting Shipcarpenter’s Street, beginning at the corner of the back street and the corner on Shipcarpenter’s Street, and running from said corner, along Shipcarpenter’s Street 98 feet, and from said corner along the back street 68 feet, said lot being 98 feet by 68, this quantity lying on the southwest side of the back street, and at the northeast corner of the said land and premises mentioned in the petition. And that the said dower be assigned and laid off to the said Mary Marshall.
And it is farther ordered and decreed by the Court that an order be directed to Caleb Rodney, Robert West, William Coleman, David Walker and Thomas L. Lodge, freeholders., to assign and lay off said dower. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487568/ | The Chancellor
said that Berry was entitled to a reasonable compensation for the maintenance of this child. That though his wife had some estate, yet Berry was under no obligation to maintain him, and now that this money or part of it has fallen to this child by the first husband, it was not more than equitable that Berry should be allowed for his maintenance; for if the land sold to Coston had been retained, Berry would have been tenant by the curtesy, and the children of the wife would have had nothing till after his death. This money was raised from that land sold, and the child, is now able to pay. He referred to 1 Bro.C.C. 208 and East [-] 2 and said that was without this equitable circumstance in favor of Berry. He was of opinion that Berry ought to receive reasonable satisfaction. The account was corrected by striking out the charges for interest and for commissions, and by reducing the maintenance for the four first years to thirty-two dollars per annum.
Blank in manuscript. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494112/ | OPINION
DUNN, Bankruptcy Judge:
This is an interlocutory appeal in which a student loan creditor appeals from an order denying its motion to dismiss an adversary proceeding brought by the debt- or, seeking a determination that her student loan debts were dischargeable in her 1999 chapter 71 bankruptcy case. Because we conclude that the consolidation loan made postpetition extinguished the debtor’s liability on prepetition student loans and is not vulnerable to “undue hardship” attack under § 523(a)(8) in a preconsolidation bankruptcy case, we REVERSE.
FACTS
The debtor, Betty A. McBurney, acting pro se, filed her chapter 7 bankruptcy case on August 9, 1999. Ms. McBurney received her chapter 7 discharge on December 6, 1999, and her case was closed on January 24, 2000.
On March 14, 2000, at Ms. McBurney’s request, Sallie Mae Servicing Corporation (“Sallie Mae”), on behalf of guarantor United Student Aid Funds, disbursed funds (the “Consolidation Loan”) totaling $32,390.59 to consolidate three prepetition student loans (“Student Loans”) owed by Ms. McBurney. Of this amount, $2,846.62 was paid to “DEVRY,” and $29,543.67 was paid to “SALLIE MAE — UNIPAC.” No funds were disbursed to Ms. McBurney from the Consolidation Loan proceeds.
Ms. McBurney reopened her 1999 chapter 7 case and commenced an adversary proceeding against the United States Department of Education on April 8, 2004, seeking a hardship discharge of the Consolidation Loan pursuant to § 523(a)(8). Sallie Mae was substituted as the defendant on June 10, 2005, and moved to dismiss the adversary proceeding pursuant to Rule 7012 on the basis that the Consolidation Loan was not a prepetition debt, and that the complaint therefore failed to state a claim as to which relief could be granted. Educational Credit Management Corporation (“ECMC”) was substituted as the defendant in place of Sallie Mae on September 21, 2005. By Minute Order dated November 28, 2005, the bankruptcy court denied the motion to dismiss.2
On December 9, 2005, ECMC filed its Notice of Appeal. We granted leave to appeal the bankruptcy court’s interlocutory order.
JURISDICTION
The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(I). We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 158(a)(3).
ISSUES
Whether the Consolidation Loan is a postpetition debt to which § 523(a)(8) does not apply.
*538Whether the bankruptcy court erred in denying ECMC’s motion to dismiss the adversary proceeding for failure to state a claim.
STANDARD OF REVIEW
We review a bankruptcy court’s conclusions of law de novo. Fireman’s Fund Ins. Co. v. Grover (In re Woodson Co.), 813 F.2d 266, 270 (9th Cir.1987).
DISCUSSION
I. The Consolidation Loan is a Postpetition Debt.
Subchapter IV, Part B of the Higher Education Act of 19653 facilitates the availability of federally insured student loans to eligible borrowers. Eligible borrowers may consolidate their student loan obligations. 20 U.S.C. § 1078-3. The issue as to whether a consolidation student loan is dischargeable in bankruptcy arose with some frequency under the version of § 523(a)(8) in effect for cases filed prior to October 7, 1998. As a condition precedent to discharge without a showing of undue hardship, under former § 523(a)(8)(A), a student loan must have come due more than seven years prior to the petition date (the “Nondischargeability Period”).4
The majority of reported decisions were consistent with Hiatt v. Ind. State Student Assistance Comm’n, 36 F.3d 21 (7th Cir.1994), which held that a consolidation student loan represented a new, distinct debt, the proceeds of which were used to cancel the original student loan notes and to pay the underlying debt. In the reported decisions consistent with the Hiatt holding, courts determined that the Nondischargeability Period was governed by the date a consolidation student loan first became due, even if the original student loan had first become due at an earlier date, and even where a debtor had been paying on the student loan debt from that earlier date. We cited Hiatt with approval in Drysdale v. Educ. Credit Mgmt. Corp. (In re Drysdale), 248 B.R. 386, 390-91 (9th Cir. BAP 2000), aff'd, 2 Fed.Appx. 776, 777 (9th Cir.2001).
ECMC contends that our decision in Drysdale regarding the nature of a consolidation student loan remains applicable notwithstanding the change to § 523(a)(8),5 which eliminated the Nondischargeability Period and left undue hardship as the only cause for discharging a student loan debt. As a result, ECMC asserts the student loan debt Ms. McBurney owed when she filed her adversary complaint is the Consolidation Loan, a postpetition debt, not the Student Loans, which existed as prepetition debts until satisfied by the proceeds of the Consolidation Loan.
In Drysdale, we explicitly adopted the interpretation of § 523(a)(8)(A) set forth both in Hiatt and in Rudnicki v. So. Coll. of Optometry (In re Rudnicki), 228 B.R. 179, 181 (6th Cir. BAP 1999). In doing so, we implicitly adopted the underlying premise in Hiatt and in Rudnicki that a consolidation student loan is a new, distinct loan, the proceeds of which are applied to extinguish the original student loan debt. Since it is based on an interpretation of relevant provisions of the Higher Education Act of 1965, which remain applicable, that premise holds true notwithstand*539ing that § 523(a)(8)(A) no longer exists.6
For example, a consolidation student loan lender is obligated to pay the proceeds of the consolidation student loan to holders of the loans being consolidated to “discharge the liability on such loans.” 20 U.S.C. § 1078 — 3(b)(1)(D). Also, the commencement of the repayment obligation for a consolidation student loan is set relative to the time when the holders of the loans being consolidated have “discharged the liability of the borrower” on those loans. 20 U.S.C. § 1078-3(e)(4). Additionally, Congress expressly provided that a consolidation student loan is a new loan for purposes of 20 U.S.C. § 1074, which sets the limitation on the annual amount of student loans covered by federal insurance. 20 U.S.C. § 1078 — 3(e).
From the record it is clear that the proceeds of the Consolidation Loan were disbursed to the holders of the Student Loans on March 14, 2000, postpetition. Ms. McBurney’s liability on the Student Loans was extinguished by the disbursements. She incurred a new liability in its place, i.e., the Consolidation Loan.
II. Rule 12 Requires Dismissal of the Adversary Proceeding.
As provided by § 101(12), “ ‘debt’ means liability on a claim.” As provided by § 101(5), “claim,” as applicable for our purposes, means “right to payment.”
At the time she filed her chapter 7 petition in 1999, Ms. McBurney was liable for the Student Loans. Had she not entered into the Consolidation Loan, her liability for the prepetition Student Loans would have continued to exist and would properly be the subject of an adversary proceeding filed in her reopened chapter 7 case to determine her ability to discharge the Student Loans based on alleged undue hardship, whenever brought. See Rule 4007. However, once her liability on the Student Loans was extinguished on March 14, 2000, the Student Loans were no longer debts.
As we have stated, the Consolidation Loan is a postpetition debt. Generally speaking, a chapter 7 debtor can discharge only debts that arose before the date of the order for relief. See § 727(b).
ECMC moved to dismiss the adversary complaint for failure to state a claim upon which relief can be granted. Rule 7012(b) (incorporating Fed. R. Civ. P. 12(b)(6) in adversary proceedings in bankruptcy). In considering ECMC’s Rule 7012 motion, we take as true all allegations of material fact made in Ms. McBurney’s adversary complaint and construe those facts in the light most favorable to Ms. McBurney. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir.2003). The complaint should not be dismissed unless it appears beyond doubt that Ms. McBurney can prove no set of facts in support of her claim that would entitle her to relief. See No. 84 Employer-Teamster Joint Council Pension Trust Fund v. Am. W. Holding Corp., 320 F.3d 920, 931 (9th Cir.2003); Zimmer v. PSB Lending Corp. (In re Zimmer), 313 F.3d 1220, 1222 (9th Cir.2002).
As is evident from the discussion above, at the time Ms. McBurney filed her adversary complaint, the Student Loans were not debts, and the Consolidation Loan was a postpetition debt not eligible for discharge under any circumstances in her 1999 chapter 7 case.7 Accordingly, under *540no circumstances can Ms. McBurney demonstrate that she is entitled to relief under § 523(a)(8) in her pending adversary proceeding. See generally Clarke v. Paige (In re Clarke), 266 B.R. 301 (Bankr.E.D.Pa.2001).
On that basis, the Bankruptcy Court erred in denying the Rule 7012 motion.
CONCLUSION
Ms. McBurney’s liability on the Student Loans was extinguished when the proceeds of the Consolidation Loan were disbursed. Ms. McBurney’s Consolidation Loan is a postpetition debt not subject to discharge in her 1999 chapter 7 case. The bankruptcy court erred in denying ECMC’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. We REVERSE and REMAND with instructions to enter an order dismissing the adversary proceeding.
. Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330, and to the Federal Rules of Bankruptcy Procedure, Rules 1001-9036, as enacted and promulgated prior to the effective date (October 17, 2005) of most of the provisions of the Bankruplcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. 109-8, April 20, 2005, 119 Stat. 23 (“BAPCPA”).
. The bankruptcy court entered a separate order denying the motion to dismiss on January 4, 2006.
. 20 U.S.C. § 1071, etseq.
. The seven-year minimum repayment period applied to bankruptcy cases filed after November 15, 1990; prior to that date, the minimum repayment period was five years.
.This amendment to § 523(a)(8) was effective for cases filed on or after October 7, 1998, and is applicable in Ms. McBurney’s chapter 7 case filed in 1999.
. While BAPCPA reintroduced a subsection (A) to § 523(a)(8), the BAPCPA version of § 523(a)(8) does not revive the passage of a minimum repayment period as a basis to allow discharge of a student loan debt in cases filed on or after October 17, 2005.
. We are deciding only that the Consolidation Loan is not dischargeable under § 523(a)(8) *540in Ms. McBurney's 1999 chapter 7 case. The dischargeability of the Consolidation Loan in any future bankruptcy case Ms. McBurney might file is not an issue before us. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487573/ | The Chancellor
said the appeal cannot be sustained. The personal representative of Ebenezer Smith should be a party. If no administrator has been raised, one should be raised to prosecute the appeal. The respondent, the former guardian of Ebenezer Smith, cannot pay the balance to the heirs, for it should go into the hands of an executor or administrator. The heir could not prosecute a suit at law against the guardian. The bond given by the guardian could only be sued by an administrator or executor, and consequently the heir cannot appeal from the decree of the Register on passing this guardian account. “Persons concerned” mean persons legally entitled to receive or sue as representing or standing in the place of the deceased ward. Let the party raise an administrator and then appeal, if he pleases. The appeal must be dismissed for want of proper parties appellant.
Decree made. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487575/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487577/ | February, 1820. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487578/ | The Chancellor.
An indictment was found against John Lowber, one of the Justices of the Peace for Kent County, at the November Sessions, 1819, for altering a counterfeit bank note. It was tried at May Sessions, 1820, and Lowber was convicted by the jury, and the court passed judgment against him. On an application made to this Court on the 8th instant for the allowance of a writ of error to be directed to the Court of Quarter *558Sessions of the Peace, or for the order of this Court to be made on the Attorney General for his fiat for a writ óf error, a preliminary question has arisen, which is, whether this Court has any jurisdiction in writs of error to be issued to the Court of General Quarter Sessions of the Peace and Gaol Delivery.
This question was argued by Mr. BrincJcle on behalf of Lowber, in the absence of the Attorney General. In expectation that he would attend this Court by three o’clock P. M. on the 9th instant, the argument was postponed until that period. He did not attend; and after argument by Mr. BrincJcle, the Court has taken time until this morning to consider the question.
By the eighth article of the constitution, this Court is created with power to issue writs of error to the Supreme Court and fi> the Court of Common Pleas, and to receive and determine appeals from the interlocutory or final orders or decrees of the Chancellor. No notice is taken of the Court of General Quarter Sessions of the Peace and Gaol Delivery, eo nomine.
The Act entitled “An Act for the better regulation of the Supreme Court within this government,” passed in the year 1760, 1 Del.Laws 374, made the Supreme Court a court of error to hear and determine all pleas, plaints and causes removed or brought there from the Court of General Quarter Sessions of the Peace by writs of habeas corpus, certiorari, and writs of error. As this Act in this has not been specially repealed, the Supreme Court will have jurisdiction to grant the writ of error in the first instance, and not this Court, unless the Act is inconsistent with the constitution. We are of opinion that this Act, in relation to the writ of error, and we touch nothing else, is inconsistent with the constitution, and that it has been repealed thereby, so far as it respects the exercise of this jurisdiction by the Supreme Court.
The eighth article of the constitution gives to the High Court of Errors and Appeals the power to issue writs of error to the Supreme Court. If then the Supreme Court has the power to issue a writ of error to the Court of Quarter Sessions, this Court,, by this provision, may issue a writ of error to the Supreme Court, and the consequence would be, that the same judges whose judgment had been reviewed by the judges of the Supreme Court would sit here to affirm or reverse their judgment. This would be great incongruity and contrary to the whole spirit of the judicial system. The power given to this Court to issue a writ of error to the Supreme Court is express and positive. When the Supreme Court has appellate jurisdiction from the Orphans’ Court in cases where that court has original jurisdiction, it is declared that the decision of the Supreme Court shall be final,. *559Constitution, Art. 6, s. 15. So where an appeal is given to the Supreme Court from the Register’s Court, there their decision is final, Constitution, Art. 6, s. 17; and consequently in those cases no writ of error can be issued by this Court to the Supreme Court. This is a case in which the decision of the Supreme Court, according to the “Act for the better regulation of the Supreme Court,” would not be final; and it would be within the power given to this Court to issue writs of error to the Supreme Court, and, of course, the judges of the Court of Quarter Sessions, sitting in this Court, would review a judgment which had affirmed or reversed their own, which would be inconsistent with the constitution. We therefore think that the constitution has repealed that part of the “Act for the better regulation of the Supreme Court” which made the Supreme Court a court of error to review the judgment of the Court of Quarter Sessions.
Again, the eighth section of the Act to regulate the courts in this state, 2 Del.Laws 1088, never was designed to be applied to the removal of an indictment after judgment rendered in the Court of Quarter Sessions. It was intended merely to prevent the removal of indictments into the Supreme Court from the Court of Quarter Sessions before the trial of such indictments. Before that law was enacted, the Supreme Court by the Act, 1 Del.Laws 374, had power to issue a writ for the removal of indictments from the Court of Quarter Sessions into that court before trial; and to make the law in this respect more consonant to the constitution this Act was passed taking away this power. The fourth section is somewhat explanatory of the Act and seems to show that the whole of it was intended to prevent the removal of civil suits and of indictments before trial. If the section were applicable to the removal of indictments after judgment, it would take away the writ of error in all cases upon indictments in the Court of Quarter Sessions, for the Act speaks of writs of error, habeas corpus, and certiorari to be sued forth by any person or persons to stay or remove any indictment found or depending in the Court of Quarter Sessions, or thereafter to be found or depending, except for capital offences, without speaking of writs to be issued by the Supreme Court, or by this Court. It applies as well to this Court as to the Supreme Court. No particular court is restrained from issuing the writ. But the Court of Quarter. Sessions is required not to receive or allow any such writ. If it means a writ of error after judgment, how will the party remove the record into this Court? If this Court has jurisdiction in criminal matters, and the Act is applicable to the removal of indictments after judgment, the law is unconstitutional: if it was passed to prevent the removal of indictments before *560judgment, the law is consistent and constitutional. This Act of Assembly has no bearing on the subject.
By the Act for establishing courts of law and equity within this government, 1 Del.Laws 121, s. 5, a writ of error is given to every person grieved by the judgment of the Court of General Quarter Sessions of the Peace and Gaol Delivery, to be granted of course, in manner as other writs of error were to be granted and made returnable to the Supreme Court. And so by the Act for the better regulation of the Supreme Court, 1 Del.Laws 374, ss. 2, 5, there is like provision made for writs of error. These sections, so far as they relate to giving the party a remedy to be relieved from an erroneous judgment of the Court of Quarter Sessions, have not been repealed by any subsequent Act; neither are they inconsistent with the constitution. The Justices of the Supreme Court cannot award the writ. But inasmuch as this Court is made a court of errors, all the remedy given to the party by the Acts before mentioned still remains to him and can be exercised by this Court, except in cases where that power has been vested in some other court. The party’s remedy is as complete now as it was before the making the constitution, though it is to be exercised by a different tribunal.
It is evident from Mr. Reed’s note d, 1 Del.Laws 124, and note f, 2 Del.Laws 1090, that he considered that this Court had jurisdiction in cases of writs of error directed to Court of Quarter Sessions.
In The Case of Paine, the jurisdiction of the Court was not questioned. Stanburrough’s Case was a writ of error to the Supreme Court on an indictment for forcible entry and detainer, brought before the constitution went into operation. These cases are not authorities.
Per Curiam.
Let the writ be allowed, saving all exceptions as well to the form of the writ as of the right to prosecute the same.
Record received and filed.
Note. This writ had been issued May 22. It was sent to Mr. Rogers, the Attorney General, for his fiat, or application had been made to him for it, and he refused to grant it. In this way the writ came before the Court and laid the ground for the motion made the 8th instant. June 12,1820, on motion of plaintiff’s counsel, ordered that the Attorney General appear and plead by six o’clock P. M. on Wednesday (14th instant) next.
June 13, 1820, Tuesday, the Attorney General this day appeared and was willing to plead before the above rule was ex-*561pirable, and thereupon he pleaded to the jurisdiction of the Court; upon which the plaintiff in error demurred to the plea to the jurisdiction of the Court. Joinder in demurrer.
Mr. Rogers, Attorney General.
This case is presented on a plea to the jurisdiction of this Court. The plaintiff in error demurs to the plea. (Here at the instance of the Attorney General, the counsel for Lowber proceeded in support of their demurrer.)
Mr. Brinckle, for Lowber, in support of the demurrer.
On general principles, reason [is] so strong in favor of [the] writ of error that slight grounds ought not to prevail against the writ.
First. This Court possesses jurisdiction in all cases inherently. The constitution makes this a Court of Errors and Appeals, which gives it authority in all cases not prohibited or vested elsewhere. Supreme Court and Court of Common Pleas [were] created and have jurisdiction in all cases, without any special limitation or designation of their authority. And so as to this case. In matters of error, where a right is given to party to sue, no necessity to say where he shall sue, for [the] constitution has given the Court authority.
Second. Constitution, Art. 7, s. 1, the expression, “Court of Common Pleas,” includes the Court of Quarter Sessions, and this expressly gives the jurisdiction. ( [Note.] Is it so as to Court of Oyer and Terminer?) The Judges of the Court of Common Pleas compose the Quarter Sessions. They are one and the same. If a judge sitting in Quarter Sessions should commit offense, he might be dismissed from office, although he would be impeached as Judge of Court of Common Pleas. Section 2 of Article 7, in civil causes the Court of Common Pleas may direct amendments. If they had said the judges of the Court of Common Pleas may direct amendments, it would have included the Common Pleas and Quarter Sessions, but civil causes confine the amendments to the Court of Common Pleas. One judge of Court of Common Pleas may open court. This applies to both courts. 2 Del.Laws 1088, Act to regulate courts; this Act does not expressly provide for the Court of General Quarter Sessions of the Peace, and if the terms here assigned do not apply to the Court of Quarter Sessions, they have done business irregularly. Ibid. 1192. The terms of the Court of Quarter Sessions [are] not included, and yet Quarter Sessions [are] held at same time. Last section of seventh article gives the Court of Errors and Appeals power to issue all process to bring *562records before them. Constitution did not exclude the Court of Quarter Sessions, not being expressly excepted by name.
Third. We say, under the laws of this state, this Court has jurisdiction, because jurisdiction has been given. The legislature may add to the jurisdiction of a court, but cannot take away a jurisdiction given by the constitution. The legislature has constantly exercised the right of giving jurisdiction. 2 Del.Laws 1180, appeal given to High Court of Errors and Appeals, — to entertain appeals from the Land Commissioners. Ibid. 1324, petitions for freedom, appeal given to this Court. The power given to this Court is to issue writs of error to Common Pleas. Here an appeal is given, and yet the constitution does not give the power to entertain appeals from the Court of Common Pleas. So appeals are given to the Court of Common Pleas from Justices of the Peace; jurisdiction given on petitions for dower. 5 Del.Laws 224, this law gives express jurisdiction in this case. This, the Quarter Sessions, is a court of law, and of course jurisdiction is given to this Court (and so is jurisdiction in writs of error from Court of Oyer and Terminer). This question has been judicially decided in The Case of Stanburrough. Paine v. State was a writ of error directed to the Court of Quarter Sessions. (The jurisdiction of the Court was not questioned and was not considered by the Court.) 2 Del.Laws 1090, note of Chief Justice Reed to eighth section, “except writs of error,” etc.; this is an expression of the opinion of Chief Justice Reed. Mr. Reed had a principal share in making the constitution.
Mr. Rogers, Attorney General.
Writs of error in England are at the discretion of the crown. 4 Ves.Jr. 2071, writs of error in the discretion of the crown in criminal cases. This doctrine extends to misdemeanors only. If the allowance of the Court could have any effect, the writ issued irregularly, for the allocation ought to have been had before the writ was sent to the court below. If this is a writ of discretion issued by Court, I cannot imagine where they get their authority. Article 7, jurisdiction is not granted to this Court by the constitution. No express grant. Article 6, section 12, that security be taken on appeals or writs of error, or no swpersedeas. These two articles and sections all point to civil actions. If it was designed to confer on Court of Appeals power to grant writ of error in criminal matters, it was of vast importance to go into the detail as to the effects of it. Would it suspend the judgment? Could security be given? If it had been intended to give the writ of error, and that it should suspend or not suspend the execution, there would and must have been great detail. If judgment is *563reversed, is the case to go back for trial? ( [Note.] No, might he not be indicted again after judgment and part of the judgment inflicted and judgment reversed? How is the future case to be proceeded in?)
Article 6, section 13, provision [of] time within which writs' of error are to be brought. Would this length of time be given, in criminal cases? (No.) Can the party take a bill of exception and put it upon the record to bring writ of error? There is no distinction between writs of error to Quarter Sessions and. to the Court of Oyer and Terminer. The Act, 5 Del.Laws [234],. confers no jurisdiction. Stanburrough’s Case is no authority. In Paine’s Case the question of jurisdiction was never mooted.. 1 Del.Laws 124, s. 5, writ of error grantable to party aggrieved.. The Supreme Court had the power to issue writ of error to; Quarter Sessions. The remedy is gone. The Court of Quarter Sessions itself was abolished by the constitution. A new court was constituted by the constitution, but it was a new and different court. The Court of Quarter Sessions had more extensive power under the Act than the Court of Quarter Sessions under the constitution. The Justices of Peace composed! Quarter Sessions. Other judges now compose Quarter Sessions. The remedy was lost with the abolition of the court. ([Note.] So all power given to courts and all jurisdiction to the different: courts erected by the Acts of Assembly are abolished and gone, the courts being newly created by [the] constitution. Is this correct?) 2 Del.Laws 1090, s. 8, passed June 14, 1793, no writ of error etc. for removal of any indictment. This Act abolishes the writs of error given to [a] party in 1 Del.Laws 124, 375, 2 Del.Laws 1091, fixing High Court of Errors and Appeals to hear causes coming from Supreme Court, Court of Common Pleas, and Court of Chancery. Jurisdiction cannot be taken by implication.
Mr. Clayton.
No part of the constitution designates the jurisdiction of any of the courts. The courts are merely created. (You are to refer to the nature of the courts and to the Acts of' Assembly previously existing to ascertain their jurisdiction.) The jurisdiction of the Quarter Sessions is not defined by the constitution. Then, according to the argument of Attorney General, the Quarter Session has no jurisdiction. ( [Note.] See-4 Binn. 424, that writ of error to Mayor’s Court must have the allowance of a judge or consent of the Attorney General. See there the construction of Act of Assembly similar to our Act, 1 Del.Laws [121, 374].) 4 Burr. 2550, writ of error not ex gratia, if probable error. Chit.Cr.L. 749, same point.
Mr. Rodney for Lowber.
*564Court adjourned till 14th.
On June 14th the Court delivered the following opinion:
First, we are of opinion that the eighth section of the Act to regulate the courts in this state, 2 Del.Laws 1088, does not take away the writ of error to the Court of General Quarter Sessions of the Peace and Gaol Delivery, after judgment rendered in that court.
Second, that the Act of Assembly entitled “An Act for the establishing courts of law and equity within this government,” 1 Del.Laws 121, s. 5, and the Act entitled “An Act for the better regulation of the Supreme Court within this government,” 1 Del. Laws 374, so far as those laws gave to the party supposing himself aggrieved by a judgment of a Court of Quarter Sessions of Peace and Gaol Delivery a writ of error, are still in force as to all cases not capital.
Third, that the constitution, by creating this Court a court of error, has given it power to issue the writ of error to the Court of Quarter Sessions in those cases in which the party is entitled to the writ by the Acts of Assembly before mentioned.
Fourth, that the expression in the seventh section of the constitution, that this Court shall have power to issue writs of error to the Supreme Court and to the Court of Common Pleas, do not, ex vi termini, mean the Court of Oyer and Terminer, and the Court of General Quarter Sessions of the Peace and Gaol Delivery.
Fifth, that the writ of error may be issued by this Court to the Court of General Quarter Sessions of the Peace, as before mentioned, on the allocatur of a judge of this Court upon showing him that there is probable error, or on the fiat of the Attorney General.
Sixth, that no writ of error can be issued by this Court to the Court of General Quarter Sessions and Gaol Delivery in any capital case of which that court has jurisdiction, but by the fiat of the Attorney General. That the Court has jurisdiction in the case now before the Court.
Judgment was entered thus. On argument, it is considered by the Court that the demurrer be allowed and the plea overruled.
Note. The Court was of opinion that the writ of error lies to the Court of Oyer and Terminer, by the common law, on the fiat of the Attorney General.
After the Court had delivered their opinion sustaining their jurisdiction in this case, the counsel for Lowber called on the *565Attorney General to plead to the assignment of errors. It was objected that the record was not before the Court, that it had not been certified by the Justices of the Court of General Quarter Sessions of the Peace and Gaol Delivery trader their seals; but that the record in this court comes up certified by the clerk of the Court of Quarter Sessions trader the seal of that court. The writ commanded the Justices to certify under their seals, whereas they did not, nor did any of them certify the same. . . .
Mr. Rodney. The Attorney General, by appearing and pleading, admits the record to be before this court properly authenticated. If there were any irregularity in the process or return the Attorney General should have taken advantage in the first instance. Tidd Pr. 90, if process be defective, but party appears and takes subsequent steps, he cannot revert back and take advantage of the irregularity. Here the attorney has appeared and pleaded to the jurisdiction of the court, and judgment on the plea. 3 Cranch 496, appearance of defendant by attorney cures all irregularity of process. 4 Cranch 180, appearance of defendant in error waives all irregularity. A writ of Error secured before its return day may be returned after the day on which it was returnable.
Mr. Rogers, Attorney General. Here Judge Warner, one of the Justices of the Court of Quarter Sessions, signed and sealed a certificate certifying the same record which the clerk of the peace had certified under the seal of the court. And further he stated that on this day, the 14th, he was requested to certify the said record. ...
Per Curiam.
The record is sufficiently before the Court, it being certified under the hand and seal of one of the Justices of the Court of Quarter Sessions.
The Attorney General then pleaded, m nullo est erratum.
The following is an abstract of the Assignment of Errors:
I. Want of names of persons intended to be defrauded.
H. Bad, either at common law or by statute for other reasons.
1. By statute. Does not follow the statute.
(1.) No averment that the note was forged with intent to defraud.
(2.) No averment of incorporation.
(3.) Note not under seal.
(4.) Variance in judgment.
a. Dimensions of letter F.
b. Penalty for not wearing letter F.
*5662. At common law.
(1.) Note not under seal.
(2.) Bank not incorporated.
(3.) Perhaps bank alone intended to be injured.
(4.) Not common-law punishment.
a. Wearing letter F.
b. Penalty for omitting to wear letter F.
3. One judgment for two distinct offenses.
4. Judgment under statute, one count at common law. . . .
Per Curiam.
We have not time to go through the whole case. We will take the prominent parts of the indictment and judgment and confine ourselves to them. There is no judgment upon the common-law count in this indictment, and therefore we shall proceed upon the count under the Act of Assembly, upon which, we are of opinion, first, that the indictment has not well described the bank note said to be forged in omitting to state that it is the note of an incorporated bank, and in omitting to state that the note was forged with the intent to prejudice some person or body corporate, according to the words and meaning of the Act of Assembly. Second, the judgment is erroneous in not giving or directing the dimensions of the letter F. These we think are sufficient for the reversal of this judgment. The addition made to the judgment in prescribing the duty of the constables and justices of the peace is not matter of error and is void.
The judgment was entered in the following form:
And now, to wit, this 16th June, 1820, this cause being argued by counsel, whereupon all and singular the premises being seen and by the Court here understood, it is considered (by the Court) that the judgment aforesaid be reversed, annulled and altogether held for nothing, and that the sáid John Lowber be restored to all things which he hath lost by occasion of the said judgment, and that the said John Lowber go thereof without day.
Note.
The judgment rendered in the Quarter Sessions was entirely under the Act of Assembly, except that it did not prescribe the size of the letter F. It is evident by a comparison of it with the Act that the Court did not intend this, or any part of it, as a judgment at common law. If the count at common law had *567been good, and the judgment had been partly by the common law and partly by the Statute, then it might have been reversed in part and affirmed in part. See 1 Salk. 24.
In indictments the Court will give judgment in that part which is good. 2 Burr. 985, vide 2 Ld.Raym. 1094. See 4 Burr. 2018, where there were two distinct judgments, and one affirmed and one reversed. If the legal judgment on each count is different, can they be joined? See 3 Term 98. It is no objection that an indictment contains several charges of the same nature in the different counts, and after trial it is not an objection in arrest of judgment that the indictment contains separate offenses, 3 Term 98.
The opinion of the Court delivered the 14th June is too much confined to the remedy given by the Acts of Assembly to persons aggrieved by the judgment of the Quarter Sessions. The common law is the law of the land; and in all cases the party is entitled to the common-law remedy, where it has not been altered by the constitution, or by the Acts of Assembly. The Court of General Quarter Sessions of the Peace and Gaol Delivery, established by the constitution, acts according to the common law. Its authority is not restricted to cases arising under the Act of Assembly, but it has jurisdiction over offenses at common law. It is a court of record because it can convict, fine and imprison. 12 Mod. 388, Salk. 200, 3 Bl.Comm. 24, 25, 1 Bac.Abr. 559, title, “Courts” (D).
Error lies of any judgment in a Court of Record. 5 Com.Dig. 700, title, “Pleader” (3B7). Upon a judgment rendered by any judge or court of record which acts according to the course of common law, though newly created by Act of Parliament, a writ of error lies. 1 Salk. 263, 266, 12 Mod. 390. So where a new offense is created and directed to be tried in an inferior court established according to the course of the common law, such inferior court tries the offense at common law, subject to be removed by writ of error, habeas corpus, certiorari, and to all the common-law proceedings. Cowp. 523, 524. It seems then that a writ of error lies to the Court of Quarter Sessions independent on the Acts of Assembly, according to the course of the common law.
The High Court of Errors and Appeals alone can issue such writ. The Supreme Court cannot, because their judgment might be reviewed by the High Court of Errors and Appeals, composed of the Chancellor and Judges of the Court of General Quarter Sessions of the Peace. And it would be impertinent that the Judges of the Court of Quarter Sessions should, in effect, af*568firm or reverse their own judgment, as they might on a writ of error to the Supreme Court. See Dyer 158, Cro.Car. 127, 128, 1 Bac.Abr. 557, title, “Courts” (C). A writ of error, by the express words of the constitution, lies to the Supreme Court, except where their judgment is final, as on appeal from the Orphans’ Court where that court has original jurisdiction, and on appeal from the Register’s Court. The High Court of Errors and Appeals has all the incidents of a court of error, and may issue a writ of error to any court of common law jurisdiction. Vide 3 Com.Dig. 328, title, “Courts” (P. 4.), 1 Salk. 408, 1 Bac.Abr. 565, title, “Courts”. It has succeeded to all the power formerly given to the Supreme Court as a court of error; and to the Court, of Appeal created by the Constitution of 1776. The powers or jurisdiction of the Court of Chancery, of the Court of Common Pleas, and of the Court of Quarter Sessions, are no more defined by the constitution than the powers of the High Court of Errors and Appeals, and yet they all respectively exercise, and rightfully too, all' the powers which ever did belong to those courts, except in cases where such powers have been assigned to other tribunals; and so may the High Court of Errors and Appeals. Unquestionably, Chief Justice Read ’ (see note d, 1 Del.Laws 124, and note f, 2 Del.Laws 1090) was of opinion that the High Court of Errors and Appeals might issue writs of error to the Court of General Quarter Sessions of the Peace.
In capital cases, such writs cannot be issued to that court, because the Acts of Assembly never gave such writs, and because the party was not entitled thereto but by the fiat of the attorney at common law. That court, though, has no jurisdiction in capital cases, except over negro slaves.
Mr. Rogers, the Attorney General, said in this cause, after the opinion of the Court had been delivered, that a writ of error would be a supersedeas. I hastily said that I did not believe the law was so. Afterwards I retracted publicly, in court, that opinion, having seen some cases which induced me so to do. The following authorities seem to warrant my retraction. Where the party cannot be restored to all that which shall be lost by the execution, (if it be made) when the judgment is reversed, then the writ of error shall be a supersedeas of the execution (at what time so ever it be brought as it seems intended), because otherwise it will be mischievous. 20 Vin.Abr. 66 pl. 1, cites 7 Hen. VI, 29. As if a juror be attainted in a writ of attaint, a writ of error shall be a supersedeas, because he cannot be re*569stored to that which he shall lose if the execution be made. 20 Vin.Abr. 66 pl. 2, cites 7 Hen. VI, 29.
The same law is in writ of error upon an attainder of felony, 20 Vin.Abr. pl. 3, cites 7 Hen. VI, 29. When one is in éxecution, they cannot supersede it by error, but he must continue committed, else there would be no remedy to bring him into custody in case the judgment should be affirmed; but on an audita querela, the party is discharged by bail because this is a new suit, and the party is never to be taken again. 20 Vin.Abr. 67 pl. 7, cites 2 Keb. 43, pl. 88; Pasch. 18 Car. II, B.R.,1 The King v. Whitmore. In the marginal note he cites Sid. 286 pl. 23, same case, and gives it thus: The party was in execution at the suit of the King upon a conviction on an indictment in the Quarter Sessions for deer-stealing and breaking parks, so when persons were fined to the King at the Sessions and in execution for it, and brought habeas corpus and a writ of error, the court would not bail them, because they are in execution for the King; but it was said that it is usual in the Crown Office to bail in such case, Sid. 320 pl. 10; Hil. 18 and 19, Car. II, B.R.,2 The King v. Marscull et al., Inhabitants of Lyme House. Siderfin agrees with this marginal note. (See 15 Ves.Jr. 182, where it is said by Lord Eldon that in criminal proceedings a writ of error does not delay the punishment, March 16, 1826.)3
A writ of error is a supersedeas to the issuing of execution from the delivery of the writ till the day of return be past; but then, if the plaintiff proceeds not to the removal of the record, execution shall be granted for his delay; but a certiorari is a supersedeas from the time of the delivery thereof forever, unless a procedendo issues. 2 Hale P.C. 213, (he cites 21 Hen. VI, c. 28, Dyer 245a.) See Hob. 116. Execution may be awarded after the day of the return of writ of error, no suit being made by plaintiff in the writ of error for the certificate of the record, which is the default of the plaintiff. But if writ of error is brought for mere delay, the court below will stay execution. 1 H.Bl. 432, 4 Term 436. These last cases, Dyer, Blackstone, Term,' are in civil cases.
That is, Easter Term, 18 Car. II, Banca Regis (King’s Bench).
That is, Hilary term, 18 and 19 Car. II, Banca Regis (King’s Bench).
The words within the parentheses are written in different ink, and must have been added some years after the body of the note. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487580/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487581/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487582/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487584/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487586/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487588/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487590/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487611/ | The Chancellor
said that the pressure of business was such that the Court had not had time to commit to paper the facts as they had occurred in this cause, nor to advert to and compare the circumstances of the transaction with the cases which had been cited in the argument. And this, he said, is not necessary to be done, because in the case stated in the record every circumstance upon which the question turned was minutely detailed, and the law arising upon the facts there was too clear to admit of any doubt.
The Bank, without any consent or agreement with Hedges, the indorser, on October 19, 1818, accepted a confession of judgment from Walker, the drawer, on a suit brought on this note, and gave him a stay of execution until the first day of June, 1819. Here, after Hedges, the indorser, was fixed, time was given to the drawer, and thereby it was put out of the power of Hedges to secure himself. It is the settled doctrine that if the holder of the note gives time, he does it at his peril. Hedges might have come in after he was fixed and paid the money, and then recovered against Walker; but after the judgment was confessed, he could not have paid the money and resorted to Walker before the expiration of the stay of execution. The true point in this case is whether Hedges, by paying the money after this confession of judgment, could have had a remedy against Walker before the first of June, 1819. He certainly could not, because the Bank was the proprietor of the note and had a right to make its own terms with Walker, which Hedges could not violate. A payment by him would have been voluntary, and contrary to the arrangement between the Bank and Walker, for which no suit would lie. Hedges could have been continued liable only by reserving the remedy against him with his consent.
Judgment reversed unanimously, Cooper, J., hesitante. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487591/ | The Chancellor
conversed with Louis McLane alone; and he in the presence of the Court, communicated [with] R. H. Bayard, *595James A. Bayard and Dr. Gillaspie. It was the desire of Mrs. Bayard that Dr. Gillaspie should be the guardian of Edward, and she had instructed him to choose the doctor; but the Chancellor desired Mr. McLane to inform those gentlemen that if Edward' chose Dr. Gillaspie, the Court would not approve of him. Dr. Gillaspie was already the agent of Mrs. Bayard, and was so much concerned by this agency both in the estates of the late James A. Bayard, and of Mr. Bassett, the father of Mrs. Bayard, that it seemed altogether improper that he should be entrusted with the estate of any of the wards, particularly if there should be any loss of their estates while they were in the hands of Mrs.. Bayard.
Petitions being presented, Edward Bayard chose his brothers,. Richard H. Bayard and James A. Bayard, to be his guardians, who were approved and appointed by the Court. Samuel Spachman of Philadelphia, merchant, and George Gillaspie, physician, sureties for said guardians. Bond in $50,000.
Richard H. Bayard was appointed guardian of Mary Jane' Bayard. The said S. Spachman and G. Gillaspie, and James A. Bayard were sureties for R. H. Bayard. Bond in $50,000.
James A. Bayard was appointed guardian of Henry M. Bayard., Spachman and Gillaspie and Richard H. Bayard were his sureties. Bond in $50,000. | 01-04-2023 | 11-18-2022 |
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