56 Assoc. v. Diorio

9 Citing cases

  1. Desmond v. Francis (In re Francis)

    597 B.R. 195 (Bankr. D. Mass. 2019)   Cited 4 times
    Stating that the estate's share of the net proceeds is to exceed existing liens on the debtor's interest in the property in explaining the trustee's burden under § 363(h) to show that the sale of the property would produce a benefit to the estate

    The Court rejects Ruth's argument because "condominiumization is not a form of partition." Collins v. Duda (In re Duda), 422 B.R. 339, 348 (Bankr. D. Mass. 2010), citing 56 Assoc. & 57 Assoc. v. Diorio , 381 B.R. 431, 436 (D.R.I. 2008). The condominium, including the individual units, would still be held in a tenancy by the entirety.

  2. In re Lunden

    524 B.R. 410 (Bankr. D. Mass. 2015)   Cited 1 times
    Awarding attorney's fees, punitive damages of $1,000, and credit monitoring for one year where social security number and date of birth not redacted

    Bessette, 230 F.3d at 445.See also Hann v. Educational Credit Management Corp. (In re Hann), 711 F.3d 235, 243 (1st Cir.2013) ; Fatsis v. Braunstein (In re Fatsis), 405 B.R. 1, 7 (1st Cir. BAP 2009) ; 56 Assoc. v. Diorio, 381 B.R. 431, 440–41 (Bankr.D.R.I.2008) ; In re Barry, 330 B.R. 28, 37–38 (Bankr.D.Mass.2005) ; Curtis v. LaSalle Nat'l Bank (In re Curtis), 322 B.R. 470, 485–86 (Bankr.D.Mass.2005).

  3. Higgason v. Brown (In re Brown)

    504 B.R. 446 (Bankr. E.D. Ky. 2014)

    “[P]racticable is not a synonym for possible; nor is it a synonym for practical. Its meaning falls between the two concepts of possibility and practicality, and incorporates both ideas—something that is not only possible, but also feasible and sensible.” 56 Associates v. DiOrio, 381 B.R. 431, 436 (D.R.I.2008). In 56 Associates, the court determined it was impracticable to partition commercial property that housed a bar, a restaurant and several apartments.

  4. In re Smith

    CASE NO. 10-52808-JDW (Bankr. M.D. Ga. May. 29, 2012)   Cited 1 times

    -------- Sanctions may include a Chapter 7 trustee's attorney fees and costs. For example, in 56 Associates and 57 Associates v. Diorio, 381 B.R. 431 (D.R.I. 2008), the bankruptcy judge authorized the Chapter 7 trustee to sell property co-owned by the debtor and his non-debtor partners free of the interests of the partners. Id. at 439.

  5. In re Wolk

    451 B.R. 468 (B.A.P. 8th Cir. 2011)   Cited 4 times
    Affirming bankruptcy court's denial of trustee's motion to sell interest of co-owner where "[t]he bankruptcy court correctly recognized that the maximum benefit to the estate was one-half of the equity in the property, or $31,535.54, less commissions and costs of sale" and that the "trustee failed to prove that any of such funds, if realized, would ultimately be available for distribution to unsecured creditors of the debtor."

    The trustee bears the burden of proving that he has met each of the four elements under § 363(h). Wright v. Wright (In re Wright), 2009 WL 2384189, at *2 (Bankr.W.D.Ark. July 31, 2009); 56 Assoc. v. Diorio, 381 B.R. 431 (D.R.I.2008); Yoppolo v. Schwenker (In re Ziegler), 396 B.R. 1, 3 (Bankr.N.D.Ohio 2008). In particular, the trustee bears the ultimate burden to show that the benefit to the estate outweighs the detriment to the defendant.

  6. In re Spickelmire

    433 B.R. 792 (Bankr. D. Idaho 2010)   Cited 7 times
    Holding that trustee bears the burden of proof on § 363(h)

    Its meaning falls between the two concepts of possibility and practicality, and incorporates both ideas — something that is not only possible, but also feasible and sensible. 56 Assoc. v. Diorio, 381 B.R. 431, 436 (D.R.I. 2008). Partition assumes that a property may be physically divided in order that all the co-owners could each be given an appropriate portion of the whole.

  7. Collins v. Duda (In re Duda)

    422 B.R. 339 (Bankr. D. Mass. 2010)   Cited 8 times
    Holding that a chapter 7 trustee has superior rights to an unrecorded interest in real property pursuant to § 544

    However, "condominiumization is not a form of partition." 56 Assoc. & 57 Assoc. v. Diorio, 381 B.R. 431, 436 (D.R.I.2008) (upholding the decision of the bankruptcy court). And in particular cases, "converting [a] building to condominiums [makes] no economic sense."

  8. In re Hutchins

    393 B.R. 257 (Bankr. D. Me. 2008)   Cited 1 times

    The credit union assumes an award of fees in this case is pursuant to Bankruptcy Rule 9011, but I disclaim any reliance on this rule. Instead, I rely on my inherent power to enforce local rules ( see Reasonover v. St. Louis County, Mo., 447 F.3d 569, 579 (8th Cir.2006) ( “ District courts have broad discretion to ... enforce local rules" )), and the authorization of 11 U.S.C. sec. 105(a) ( see 56 Assoc. v. Diorio, 381 B.R. 431, 440-41 (D.R.I.2008) (finding sec. 105(a) as the basis for an award of counsel fees in connection with defending against a motion to compel)).          The debtor claims she unnecessarily incurred $ 486.50 in fees defending the motion for relief from stay and obtaining its withdrawal, and another $1,072.50 in fees prosecuting the motion to strike.

  9. In re Heinze

    Case No. 02-83050C-7D, Adversary No. 08-09012 (Bankr. M.D.N.C. Aug. 1, 2008)   Cited 3 times

    See In re Valley Health Sys., 383 B.R. 156, 163 (Bankr. C.D. Calif. 2006) (finding of impracticability under section 109(c)(5) was based upon need to act quickly in order to avoid risk of loss of assets). In order for a partition to be practicable, it must not only be physically possible, it also must be feasible and sensible, and a partition that is not feasible and sensible is impracticable. 56Assoc. v. Diorio, 381 B.R. 431, 436 (D.R.I. 2008). A partition in kind in this case would entail dividing the assets into two equal shares.