Summary
holding that preferential transfer claim was not entitled to jury trial, but without any discussion of nature of relief sought or whether a claim against the bankruptcy estate had been filed
Summary of this case from Growers Packing v. Community Bank of HomesteadOpinion
Bankruptcy No. 88-02602-BKC-AJC. Adv. No. 89-0485-BKC-AJC-A.
March 23, 1990.
Reggie David Sanger, Fort Lauderdale, Fla., for plaintiff.
Robert A. Mark, Miami, Fla., for DeJulios and Sheinfelds.
Lance H. Baker, Fort Lauderdale, Fla., for Glazers and Glazer, Inc.
Marika Tolz, Hollywood, Fla., trustee.
ORDER ON MOTION TO DETERMINE DEFENDANTS' ENTITLEMENT TO JURY TRIAL
THIS MATTER having come before this Court on February 26, 1990 at 10:30 o'clock A.M. on the Plaintiff's Motion to Determine Defendants' Entitlement to Jury Trial, and the Court having reviewed the pleadings and the applicable authority, including the Supreme Court's recent decision in Granfinanciera v. Nordberg, ___ U.S. ___, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), and the Court having considered the argument of counsel, it is hereby
ORDERED AND ADJUDGED that:
1. By separate Order entered this day, the Court is dismissing Counts V and VI of the amended complaint. Accordingly, Defendants' request for jury trial on these two counts is now moot.
2. Defendants, MORRIS GLAZER, MARLYN GLAZER and GLAZER, INC., are entitled to a trial by jury on the fraudulent conveyance claims alleged in Count IV of the Amended Complaint.
3. Of the remaining four counts of the Amended Complaint, Defendants, ALAN L. SHEINFELD and SUSAN SHEINFELD, are named only in Count III which seeks to avoid alleged preferential transfers. This Court does not interpret Granfinanciera to require a jury trial on preference claims brought pursuant to Section 547 of the Bankruptcy Code and denies the SHEINFELD Defendants' request for jury trial on Count III.
4. Defendants, DOMINIC DeJULIO and ROSALIND DeJULIO, have waived any right to jury trial on Counts I and II of the Amended Complaint by filing a Proof of Claim in this proceeding.
5. The Court sua sponte grants the Plaintiff/Trustee leave to amend the complaint to seek declaratory relief with respect to those issues in dispute in the fraudulent conveyance claims presently asserted in Count IV of the Amended Complaint. If declaratory relief is sought, the Defendants will not have a right to a jury trial.
DONE AND ORDERED.