In re Lucero

Full title: In re: PHILLIP S. LUCERO, Debtor. PHILLIP S. LUCERO, Plaintiff, v. TOWN OF…

Court: United States Bankruptcy Court, D. New Mexico

Date published: Apr 17, 2006

No. 7-04-11672 SS, Adv. No. 05-1208 S (Bankr. D.N.M. Apr. 17, 2006)

Opinion

No. 7-04-11672 SS, Adv. No. 05-1208 S.

April 17, 2006

ORDER DISMISSING COMPLAINT

JAMES STARZYNSKI, Bankruptcy Judge

This matter came before the Court for a pretrial conference. The parties agreed that no facts were in dispute, and that this case could be resolved through briefs. Having considered the stipulations and the briefs, the Court finds that this case should be dismissed for lack of jurisdiction.

FACTS

1. Plaintiff (Debtor) filed a voluntary chapter 7 proceeding on March 9, 2004 and received a discharge on June 21, 2004 at which time the case was closed.

2. Debtor's statement of intention stated that he intended to surrender two parcels of real estate in Clayton, New Mexico.

3. The chapter 7 trustee abandoned all assets at the conclusion of the section 341 meeting on April 16, 2004.

4. The secured creditor has not foreclosed on the property Debtor intended to surrender.

5. In July, 2005, Debtor incurred indebtedness to the Town of Clayton due to his failure to keep the Clayton property free of weeds as required by town ordinance.

6. Debtor seeks a declaratory judgment that his liability to the Town of Clayton was a pre-petition debt and therefore discharged.

CONCLUSIONS OF LAW

1. The debt in question is a post-petition debt. It is based on actions that occurred in 2005. See Dixon v. United States (In re Dixon), 210 B.R. 610, 612 (Bankr. W.D. Ok. 1997), aff'd, 218 B.R. 150 (10^th Cir. BAP 1998).

2. The bankruptcy court lost jurisdiction over the property and disputes about the property when it was abandoned from the estate. Gardner v. United States (In re Gardner), 913 F.2d 1515, 1518 (10^th Cir. 1990). Also, when the property was abandoned, "the property stands as if no bankruptcy had been filed and the debtor enjoys the same claim to it and interest in it as he held previous to the filing of bankruptcy." In re Cruseturner, 8 B.R. 581, 591 (Bankr. D. Utah 1981).

3. The Town of Clayton's actions against the Debtor do not arise in or arise under the Bankruptcy Code.

4. The outcome of Debtor's dispute with the Town of Clayton has no relationship to the bankruptcy estate because it revolves around a post-petition debt.

5. The Bankruptcy Court has no jurisdiction over this dispute between the Town of Clayton and Debtor.

THEREFORE, IT IS ORDERED that this case is dismissed without prejudice for lack of Bankruptcy Court jurisdiction.