Lane v. Barney (In re Lane)

Summarized by Lars Fuller , BakerHostetler
10 years 5 months ago

Citation:

Lane v. Barney, BAP No. WY-14-061 (BAP 10th Cir. Sept. 28, 2015)

Tag(s):

Ruling:

BAP affirmed in part, and reversed in part, order of bankruptcy court (D. Wy.) taxing costs against chapter 7 debtor incurred by trustee in retaking possession of estate property. Notwithstanding debtor's obstreperous conduct, refusal to comply with settlement agreement, refusal to comply with court orders, and failure to appear at hearing on issue of costs, BAP found reversible error in the bankruptcy court's assessment of $3,103 against debtor for cleaning costs, when settlement agreement and writ of execution for possession did not include debtor's requirement to clean properties prior to turnover. BAP affirmed bankruptcy court's assessment of approximately $26,140 in fees in costs related to the trustee's eviction of debtor. BAP declined to address debtor's attempt to re-appeal issues previously dismissed by the Tenth Circuit for debtor's failure to prosecute. Notwithstanding the debtor's obstreperous conduct, including consistent opposition to the trustee, and refusal to abide by court orders or the debtor's own settlement agreements, plus the debtor's appeals of all orders, all other of which were appealed up to the Tenth Circuit and then dismissed for failure to prosecute, the BAP reviewed in careful, deliberate, thorough detail the propriety of the bankruptcy court's assessment of costs against the debtor following the debtor's refusal to vacate properties that he had voluntarily agreed to surrender, which required the trustee to obtain and execute a writ of execution with the use of U.S. Marshalls, before concluding that while the majority of fees and costs were appropriately taxed, the cleaning costs were not, and thus reversed that aspect of the bankruptcy court's decision.

Procedural context:

After bankruptcy court entered order taxing costs against chapter 7 debtor related to trustee's efforts to re-take possession of real property, debtor appealed to 10th Circuit BAP.

Facts:

Debtor voluntarily filed chapter 7, and then contested every attempt by the trustee to administer the estate. After nearly two years of disputes, the trustee, debtor, and various family members of the debtor reach two separate settlement agreements that included in part debtor's obligation to surrender two properties to the trustee. Debtor breached the settlement agreement, including by refusing to allow the trustee to show the properties for sale, and then refusing to vacate the properties. The trustee obtained a writ of execution from the bankruptcy court to obtain possession, including authorization for use of the U.S. Marshalls, as well as authorization to then list the properties for sale, and authorization to submit a bill of costs . .

Judge(s):

Cornish, Nugent, Somers

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