Commercial real estate Lawyer
Practice Areas: Commercial, Energy & Utilities
OUTCOME: Order for the Plaintiff, CIT Technology, Affirmed
Action to recover business machinery and rent for the use of that machinery. See full published opinion at:: http://scholar.google.com/scholar_case?case=588618536590387281&q=CIT+technology++vs+Tricycl ... e&hl=en&as_sdt=20000000002
OUTCOME: The court granted the purchaser's motion to compel.
The agent had been the insurance agent for the insurance company. Subsequent to filing Chapter 11 bankruptcy, the agent sold its office assets to the purchaser. After the sale occurred, the insurance c ... ompany refused to turnover the commissions it had previously owed to the agent covered by the order, prompting the purchaser to file the motion. The court held that the matter was a core proceeding under 28 U.S.C.S. § 157 because the matter concerned the court's own order and arose in a case under Title 11. The court found that the insurance company did not have an "interest" for purposes of 11 U.S.C.S. § 363(f). The court further found that the insurance company did not have a right of recoupment against the commissions earned postpetition, thus, it also did not have a legitimate defense to the purchaser's motion to enforce the order. The court cautioned the parties, however, that its determination only covered commissions related to the agent's business operation that was sold to the purchaser because any commissions owed to the agent because of the agency agreement covering the agent's other business operation were not covered by the order.
OUTCOME: The court awarded the creditor a judgment against the debtor, declared that the creditor's judgment was nondischargeable, and dismissed the debtor's counterclaims.
The debtor filed a voluntary petition for Chapter 7 bankruptcy relief. The creditor filed an adversary proceeding, seeking nondischargability of a claim for certain embezzled funds. The creditor also s ... ought prejudgment and postjudgment interest, accountants' and attorneys' fee, costs, and expenses. The debtor filed a counterclaim for sanctions for a frivolous action, actual and punitive damages for violation of §§ 362, 553, and attorneys' fees and costs. Upon consideration, the court granted a nondischargeable judgment to the creditor, dismissed the debtor's counterclaims, eliminated a portion of the creditor's gallonage liability to the estate, and denied the parties' requests for interest, expenses, and fees. In light of the debtor's concession that he misappropriated the creditor's funds, the court's role was to determine the amount of the creditor's loss. The court held that the creditor had satisfied its burden of showing, via gross profit analysis, that the full amount of its claimed losses was caused by the debtor's embezzlement. The debtor's counterclaims were denied because the record did not support one claim, and the debtor did not have standing to assert the other.
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