Archives for posts with tag: bankruptcy

The bank repossessed collateral including a Kawasaki Ninja motorcycle but under Wisconsin law the debtor retained some property rights prior to sale, so now in Bankruptcy proceedings the debtor’s estate has rights to that property. The banks failure to return the property was a willful violation and the bank was held in contempt.

In re: Jason R. Herbst, Debtor.

(Chapter 13) Case No. 12-11044

UNITED STATES BANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

469 B.R. 299

April 11, 2012, Decided

Opinion by US Bankruptcy Judge Robert D. Martin:

Jason Herbst (the debtor) filed a Chapter 13 petition on February 29, 2012, and a Motion for Contempt and for Return of Property on March 6, 2012. He alleges that Talmer Bank & Trust (the bank) violated the automatic stay by refusing to return equipment that the bank repossessed prepetition.

The repossessed equipment was the subject to security agreements that provided as a remedy for default, the bank “may repossess the Property so long as the repossession does not involve a breach of the peace. [The bank] may sell, lease, or otherwise dispose of the Property as provided by law.” The debtor defaulted, and in March 2011, the bank filed a complaint for replevin in Lafayette County. A default judgment was entered against the debtor on May 16, 2011, which states:

“…Plaintiff is entitled to possess and sell the following collateral:

Machinery, vehicles, fixtures, farm machinery and equipment, shop equipment, office and record keeping equipment, parts and tools

Farm products, crops, feed, seed, fertilizer, medicines and supplies.

All government program payments.

2004 Kawasaki Ninja 250R VIN: JKADXMF164DA06034

2005 Chevrolet truck VIN: 1GCJK33215F920432

Plaintiff may sell said collateral as provided in the Security Agreements subject to this action and apply the net sale proceeds to the above stated sum adjudged due and owing from Defendant to Plaintiff…

Plaintiff shall be entitled to issuance of a Writ of Replevin upon request of plaintiff.”

Under a Writ of Replevin, the bank repossessed five items of equipment on December 8, 2011, and placed them at an auction house. There is no evidence that a sale or other disposition has yet occurred. Nor is there evidence that a contract for disposition was formed. The bank has refused to release the replevied equipment. The debtor seeks to have the bank adjudged to be in contempt for violation of the § 362(a) stay. He also seeks actual and punitive damages (including costs and attorney fees), and the return of the collateral to the debtor.

Finding,

Wisconsin law indicates that the debtor retains a right of redemption as long as a sale or contract for sale has not occurred

and

The bank may have believed that it was legally entitled to retain possession of the collateral in light of the judgment, but a violation of the stay is “willful” even if the actor believes himself justified. Since the bank knew of the bankruptcy filing and still retained possession of the collateral, it willfully violated the stay. Therefore, the bank is in contempt until it returns the collateral.

This bankruptcy case with fraudulent credit filings, involves a Kawasaki Ninja 900 motorcyle. The question is about whether debts will be discharged in bankruptcy. The Court decides that some of the debt is and because of fraud, some of it isn’t.

In re: CARL VASILE and TERESA VASILE, Debtors. AUTOMOTIVE FINANCE CORPORATION, Plaintiff, v. CARL VASILE and TERESA VASILE, Defendants.
CASE NO.: 02-1465-3F7, ADV. NO.: 02-131
UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA, JACKSONVILLE DIVISION
297 B.R. 893;
2003 Bankr. LEXIS 1025; 16 Fla. L. Weekly Fed. B 253
August 12, 2003, Decided

On December 11, 2000 Carl Vasile presented Plaintiff with a bill of sale evidencing the purchase by Union Credit from Auto Temps of ten motorcycles and two cars. Included in the bill of sale were the following motorcycles for which Plaintiff has not been repaid:

including:

5.) a 2000 Kawasaki Ninja 900 motorcycle with a $ 9,000.00 purchase price. (Pl.’s Ex. 37 at 405.) (AFC Stock No. 503.) Union Credit purchased the motorcycle for $ 4,320.00 on September 7, 2000. (Pl.’s Ex. 41 at 4140.)

2000 kawasaki ninja 900

The 1999 district court opinion is by Judge Gregory M. Sleet about a partnership in bankruptcy. The Court has to determine whether certain payments were preferential and to be reclaimed by the company’s debtors. Here we see another unnecessary reference to Teenage Mutant Ninja Turtles, again likening them to Power Rangers and this time also to Barney.

In re: COLLEGEVILLE/IMAGINEERING, L.P., Debtor. COLLEGEVILLE/IMAGINEERING, L.P., Plaintiff, v. L.J. LIFF AND ASSOCIATES, LIMITED, Defendant. COLLEGEVILLE/IMAGINEERING, L.P., Plaintiff, v. LAWRENCE J. LIFF, Defendant.

Chapter 11, Civil Action No. 97-413-GMS and Civil Action No. 97-414-GMS
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
1999 U.S. Dist. LEXIS 23622
October 5, 1999, Decided

In explaining how the company’s business went bad:

this new Partnership was fairly successful. Like its predecessor and namesake, the Partnership would build up a large inventory of non-licensed costumes (e.g., ghosts, goblins, witches, skeletons, etc.) early in the year and, then, secure the crucial licenses for the more popular characters (such as the Teenage Mutant Ninja Turtles or Barney) a few months before Halloween. As a result, the Partnership enjoyed a competitive advantage over other costume manufacturers since stores typically buy all of their Halloween products from one vendor. Because of its historical success in this area, the Partnership was able to fund its activities by borrowing heavily from its lender, Meridian Bank, during the year and then paying off its line of credit with the proceeds from its Halloween sales after the season had ended. For the most part, the Partnership’s loans were unsecured.

However, in the Summer of 1994, the Partnership learned that it would not able to obtain a license for the most popular characters of the season—the “Power Rangers.” Consequently, its sales suffered terribly and, by the end of the year, the Partnership had incurred a $10 to $12 million shortfall and was thus in default with respect to its obligations to Meridian.

Previous NinjaLaw cases about Ninja Turtles:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

First mention of Ninja Turtles in F.Ct. where it’s actually about them
Mirage Studios v. Weng et.al. – April 29, 1994

Burger King Kids Club with Mutant Ninja Turtles – multi-ethnic path to Glee and Celebrity Apprentice
CK Company v. Burger King – September 29, 1994

Ninja Turtles again, this time with FASA’s BattleTech, ExoSquad, RoboTech and Playmates
Fasa v. Playmates – June 19, 1995
(WITH POWER RANGERS)

Spam vs Spa’am with Splinter from TMNT and Pumbaa from Lion King
Hormel Foods v. Jim Henson Productions – September 22, 1995

Ring Pops not utilitarian so trademark protects after patent expired
Topps Company v. Verburg – December 12, 1996

Ninja Turtles as euphemism for Prison Response Team
Clark v. Westchester County – April 30, 1998

Statue of a Ninja Turtle – heroin in it
Reyes v. Miller – June 23, 1999