William S. Howard

“The court will therefore enter a separate order overruling his Motion for Summary Judgment and granting the Defendants’ Motion for Summary Judgment, and further overruling the Plaintiff trustee’s Motion to Sell Subject Property Pending Adjudication.”

After trial, the court quantified contract damages and retained the decision outside motion counts because it did not resolve a motion.

“Chase’s objection to the confirmation of the plan should therefore be overruled.”

“The court will therefore enter a separate order lifting the injunction in regard to Lyle and allowing it to enforce its guaranty against Zdolshek.”

“Amended KRS 382.270 is in conflict with a federal law and therefore unenforceable, and the Trustee may avoid CIT’s lien. d. Treatment of the IRS’s lien The Trustee has asserted in his Complaint that any amounts that would otherwise be secured by the IRS’s lien should be paid to the estate, and the lien treated as an unsecured priority claim pursuant to Bankruptcy Code section 724(b). In his Motion for Summary Judgment the Trustee states that CIT’s lien would have been superior to the IRS’s tax lien under state law, as the IRS recorded its lien on October 12, 2005, more than three years after CIT recorded its mortgage. CIT’s avoided lien is automatically preserved for the benefit of the estate pursuant to Code section 551, and, the Trustee contends, the estate enjoys priority over the IRS’s lien up to the amount of CIT’s mortgage as provided in Code section 724(b)(1). The IRS responds that if CIT’s lien was never perfected, it could not have been effective against subsequent lienholders such as the IRS and is not senior to the IRS’s tax lien. The IRS goes on to assert that there is no perfected lien to preserve for the benefit of the estate. The IRS also states that if the Trustee avoids CIT’s mortgage, the federal tax lien would be subordinated to priority claims pursuant to Code section 507(a)(l)-(7) as set out in Code section 724(b)(2), but that the IRS is entitled to payment pursuant to the provisions of section 724 whether the Trustee avoids the mortgage or not. Courts have consistently held that preservation of a lien avoided under Bankruptcy Code section 544 puts the estate in the shoes of the creditor whose lien is avoided; preservation does not improve the estate’s position viz-a-viz other creditors. A later, properly perfected creditor prevails in this instance, and the estate’s lien is junior to that later perfected security interest. See In re Carvell, 222 B.R. 178 (1st Cir. BAP 1998). The court must therefore agree with the IRS that its lien is superior to that of the estate, and that it is to be paid as a secured creditor from the proceeds of any sale of the subject property- An order in conformity with this opinion will be entered separately.”

“Zurich’s application for allowance of administrative expense should be denied.”

“Therefore the trustee’s interest in the property is superior to all others and he may avoid the subject mortgage and preserve it for the benefit of the estate.”

“In this instance the Trustee may therefore avoid and recover the transfer of the remainder interest to the Defendant, her conveyance of the subject property back to the Debtors notwithstanding.”

“In consideration of all the foregoing, it is the opinion of this court that the Defendant has not satisfied the requirements of Bankruptcy Rule 9011 for service of a motion for sanctions, and that its Motion *559 for Rule 9011 Sanctions should be and hereby is overruled.”

“For the reasons stated herein, the Court finds it appropriate that the $695.00 being held by the Trustee from previous plan payments made by the Caises in this matter should be refunded to the Caises in its entirety. Further, the Court finds that Ms. Knight should likewise refund to the Caises all sums which they paid to her for attorneys fees, costs and any other expenses relating to the herein Chapter 13 proceeding.”

“The court will therefore overrule the Plaintiffs Motion for Summary Judgment as it pertains to damages claimed in regard to violation of the stay. 6. Conclusion In consideration of all of the foregoing, the court has concluded that the Plaintiff has carried forward her burden of demonstrating that there is no genuine issue as to any material fact, and that she is entitled to judgment as a matter of law that the Defendant’s lien is invalid and without effect, and that its claim is unsecured. Further, the Plaintiffs interest in the truck is superior to all others and any interest the Defendant may have is subordinate to the Plaintiffs interest on behalf of the estate. The court will enter Summary Judgment for the Plaintiff by a separate order.”

“The court has sustained the motion and established a procedure for the estimation of the claims.”