Opinion
Case No. A00-01191 DMD, Adv. Case No. 05-90034-DMD.
September 23, 2005
Gary Spraker, Esq. CHRISTIANSON SPRAKER Anchorage, Alaska Attorneys for Trustee
Serve: G. Spraker, Esq. Defendant Calendar
This matter having come before the Court on Plaintiff Kenneth Battley, Trustee's (Trustee), Emergency Ex Parte Motion to Set Date and Time for Motion for Preliminary Injunction to Compel Debtor to Perform Settlement Obligations. The Court previously held a hearing on the Trustee's Motion to Compel Debtor To Perform Settlement Obligations in the main bankruptcy case on Monday, September 19, 2005, at which the debtor and her counsel of record, Chris Johansen, were present. After hearing oral argument on the Trustee's motion, the Court noted that because the Trustee sought equitable relief against the debtor, the matter must proceed as an adversary action under Federal Rule of Bankruptcy Procedure 7001(7). The Trustee indicated that such action would be filed by September 23, 2005, and that he would be seeking injunctive relief at the time of the filing based upon his motion. The Court scheduled a hearing on the request for preliminary injunctive relief for Tuesday, September 27, 2005, at 10:00 a.m. in the Historic Courtroom, Old Federal Building, 605 W. 4th Ave., Anchorage, AK 99501. Neither the debtor, nor her counsel (who has subsequently withdrawn from representing the debtor) objected.
The Trustee has commenced the instant adversary action against the debtor seeking substantially the same relief request in the motion filed in the main case. He has also filed his Motion for Preliminary Injunction to Compel Debtor To Perform Settlement Obligations (Injunction Motion), and now seeks an order confirming the date and time of the hearing on the Injunction Motion.
The Court having reviewed the Emergency Ex Parte Motion to Set Date and Time for Motion for Preliminary Injunction to Compel Debtor to Perform Settlement Obligations, and being duly advised, finds that good cause exists to hold the hearing on the Trustee's Motion for Preliminary Injunction to Compel Debtor To Perform Settlement Obligations. The motion in the main case was properly noticed to the debtor. During the hearing on that case, the Court advised debtor that a hearing would be scheduled on any motion for injunctive relief on Tuesday, September 27, 2005, at 10:00 a.m., and no objection was raised. Because the basis for the current Injunction Motion, and the relief sought in that motion, substantially parallel the motion in the main case, the Court finds that defendant has had ample notice, and a hearing is appropriate and that date and time to consider the Injunction Motion. Therefore,
IT IS HEREBY ORDERED that the Trustee's Emergency Ex Parte Motion to Set Date and Time for Motion for Preliminary Injunction to Compel Debtor to Perform Settlement Obligations is GRANTED. The Court shall hold a hearing on the Trustee's Motion for Preliminary Injunction to Compel Debtor To Perform Settlement Obligations to determine his right to a preliminary injunction under Fed.R.Civ.P 65 on Tuesday, September 27, 2005, at 10:00 a.m. in the Historic Courtroom, Old Federal Building, 605 W. 4th Ave., Anchorage, Alaska. Defendant Gwen Anagick Walters is required to personally attend the hearing.
IT IS FURTHER ORDERED that the Trustee shall serve this order on Defendant by posting it at her residence by 6:00 p.m. on September 24, 2005, and mailing a copy of this order to the Defendant at 6215 Eastwood Ct., Anchorage, AK 99504 via first class mail.
Violation of this order may result in an order of contempt of court.