Holding: So long as there is not a contrary published opinion from the District Court of Arizona, this Court will follow the opinions of the Ninth Circuit BAP, whether or not this Court agrees with the reasoning behind the particular BAP decision. The BAP in the Friedman decision held that the absolute priority rule does not apply in an individual debtor’s Chapter 11 case. The rationale for its 2-1 decision is set out in the extensive opinion penned in Friedman by Bankruptcy Judge Clarkson. Although this Court tends to favor the dissenting decision of Judge Jury in Friedman, for the reasons stated above, this Court feels duty bound to follow the majority’s holding in Friedman. Accordingly, the objection to the Debtor’s chapter 11 plan based on absolute priority grounds is hereby overruled.
The District of Arizona offers a database of opinions for the years 2014 to current, listed by year and judge.
Holding: The fees which Debtors seek to collect are related to the substance of a pending Appeal. Because the outcome of the Appeal may alter the Court’s prior ruling, the Court finds that it has been divested of jurisdiction to proceed with implementation of only a portion of the Memorandum. Even if it were possible to partially implement the Memorandum, judicial economy would not be served by having only one part of the Memorandum reduced to judgment. If Debtors succeed on the Appeal, the Court will then have to determine the amount of their actual and punitive damages, as well as their claim for additional attorneys’ fees incurred in the Appeal. Such a piecemeal, time-consuming process is not cost effective for the Court or the parties.
Holding: Plaintiff asserts a large number of claims, many of which involve different factual circumstances. This Court finds that, at least with respect to Plaintiff's predecessors whose relationship with Eckerman was simply that of passive investors purchasing investment opportunities, application of the test set forth in Reves dictates a finding that the Eckerman notes were securities and, therefore, Plaintiff's securities claims may be pursued as part of this case.
Holding: The Amended Plan does not satisfy § 1129’s confirmation requirements. Dismissal of the case is not in the best interest of creditors. Appointment of a Chapter 11 trustee is not economically feasible. Accordingly, the case is converted to Chapter 7.
Holding: According to Schedule 1 of the Tempe Tower, LLC Operating Agreement, on February 24, 2013, the Debtor's membership interests in Tempe Tower changed from 50% to zero and Pure Country's membership interests changed from 50% to 100%. The Court has been asked to determine if Schedule 1 is enforceable. Under Arizona law, parties to an operating agreement can contract, as the parties here did in Schedule 1, for changes in membership interests between the parties.
Holding: The location of the Building on the Lot and the Adjacent Lot will undoubtedly continue to bedevil the Debtor and the Plaintiffs, but the Debtor may not use his Chapter 13 case for a second bite at the apple regarding the effect and enforceability of the Settlement Agreement. Accordingly, the Motion for Summary Judgment is GRANTED
Holding: In an earlier ruling, the Court found Debtors liable to Plaintiff pursuant to Section 523(a)(4) as a result of the embezzlement by Mr. Campbell of funds invested by PMM Investments, LLC, and directed the Plaintiff to file an accounting of the debt due, taking into account any setoffs or payments already made on the underlying debt. Plaintiff shall have judgment against the Defendants in the principal amount of $737,006.25, with accrued interest and attorneys’ fees thereon, which shall be a nondischargeable debt pursuant to 11 U.S.C § 523(a)(4).
Holding: Plaintiff is entitled to recover the amount of a Commission as a
non-dischargeable debt but not the amount of a Note as Plaintiff failed to meet the necessary burden of proof under § 523(a)(2) or (6).
Holding: Enterprise contends it is entitled to superpriority administrative expense claims because the adequate protection provided to it by the Debtors was insufficient to cover the actual decrease in the value of its collateral. Because Enterprise has not proven that its collateral decreased in value, the Court denies Enterprise’s Superpriority Application.
Holding: The Operating Agreement is an executory contract, the purchase option within the Operating Agreement was triggered by an unenforceable ipso facto clause, and a valid trigger of the purchase option would nevertheless require stay relief, which relief is not presently warranted.