Opinion
Case No. 12-00026-PB11
04-23-2012
In re DAVID M. ANDERSON, Debtor.
WRITTEN DECISION - NOT FOR PUBLICATION
ORDER ON MOTION FOR
RELIEF FROM STAY
Asserted Creditors Victoria Place, LLC and James Lessley seek relief from the automatic stay in this Chapter 11 case. Relief would allow them to resume proceedings in state court against debtor Anderson and other defendants on multiple claims ranging from breach of contract to misrepresentation to fraud.
In opposition to the motion for relief, Mr. Anderson argues he is trying to move the case along quickly, has filed a draft proposed plan and disclosure statement, and proposes to seek estimation of the claims of Lessley and Victoria Place in order to speed the process along. It is true that 11 U.S.C. § 502(c) provides for estimation of a claim under certain circumstances. That subsection provides:
(c) There shall be estimated for purposes of allowance under this section -
(1) any contingent or unliquidated claim, the fixing or liquidation of which, as the case may be would unduly delay the administration of the case; or
(2) any right to payment arising from a right to an equitable remedy for breach of performance.
As of the most recent hearing on the relief from stay motion, debtor had not filed a motion to estimate. However, debtor invoked his intent to do so in opposition to the stay relief motion. That gives rise to the question of whether the claims of Mr. Lessley and Victoria Place, LLC are amenable to estimation under § 502(c). To be amenable, they must be either contingent or unliquidated. In re Audre, Inc.. 216 B.R. 19 (9th Cir. BAP 1997); In re Keenan, 201 B.R. 263 (Bankr. S.D. CA 1996).
In order to decide the relief from stay motion, the Court needs to resolve whether estimation is available to debtor and whether it will advance confirmation of a plan of reorganization. Accordingly, Mr. Anderson shall file and serve a motion to allow estimation (focused on the issues of contingency and liquidation, not amount) on or before May 14, 2012. Mr. Lessley and Victoria Place, LLC shall file and serve any opposition to the motion they may have on or before May 29, 2012. Debtor may file and serve a reply on or before June 5, 2012. Hearing on the motion to allow estimation will be held on June 18, 2012 at 11 a.m., before this Court. In the meantime, the automatic stay shall remain in full force and effect pending further order of this Court.
IT IS SO ORDERED.
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PETER W. BOWIE, Chief Judge
United States Bankruptcy Court