In re Rose

8 Citing cases

  1. Hays v. DMAC Investments, Inc. (In re RDM Sports Group, Inc.)

    250 B.R. 805 (Bankr. N.D. Ga. 2000)   Cited 21 times
    Holding that lessor failed to establish a "new value" defense because its act of calling off sheriff's sale of personal property was forbearance and not "new value"

    Provided that all of the elements of a preference are satisfied, the fixing of a judicial lien is itself a transfer subject to avoidance. Cullen Ctr. Bank Trust v. Hensley (Matter of Criswell), 102 F.3d 1411, 1415 (5th Cir. 1997); In re Jim-O-Lette, Inc., 140 B.R. 874 (Bankr. N.D. Tex. 1992); Carlson v. Rose (In re Rose), 86 B.R. 193, 194 n. 1 (Bankr. W.D. Mo. 1988); Lewis v. Custom Heating Co. (In re Joseph M. Eaton Builders, Inc.), 84 B.R. 56, 58 n. 1 (Bankr. W.D. Pa. 1988). It has already been established that as of June 23, 1997, the day of the sheriffs levy and the establishment of its lien, DMAC was a creditor with an antecedent debt. Insolvency is presumed during the preference period. The creation of DMAC's judicial lien preceded the bankruptcy petition by sixty-seven (67) days.

  2. In re Brown

    226 B.R. 39 (W.D. Mo. 1998)   Cited 15 times
    Holding that creditor who did not timely perfect lien in mobile home after refinancing loan not entitled to subrogation even though delay resulted from prior PMSI holder's delay in releasing lien

    Jones Truck Lines, 83 F.3d at 258. 11 U.S.C. ยง 101(32)(A); Carlson v. Rose (In re Rose), 86 B.R. 193, 194 (Bankr.W.D.Mo. 1988). Debtor's secured liabilities consist of the claim of Chase in the amount of $29,114.44, the claim of NationsBank in the amount of $6,400.

  3. In re Sklar Exploration Co.

    649 B.R. 45 (Bankr. D. Colo. 2023)

    The burden then shifts to the Defendant to produce some evidence to rebut the presumption. Carlson v. Rose (In re Rose) , 86 B.R. 193, 194 (Bankr. W.D. Mo. 1988) (citing Sandoz v. Fred Wilson Drilling Co. (Matter of Emerald Oil Co.) , 695 F.2d 833, 837-38 (5th Cir. 1983) ). If the Defendant had done so here, then this fact would have to be tried in court.

  4. In re Furrs Supermarkets, Inc.

    No. 01-10779 SA, Adv. No. 02-1208 S (Bankr. D.N.M. Apr. 5, 2006)

    However, these voicemails are not authenticated or otherwise admissible, do not establish a genuine fact question and are hearsay. Furthermore, the test for insolvency does not include an ability to pay debts on a current basis; insolvency is a balance sheet test. See Carlson v. Rose (In re Rose), 86 B.R. 193, 195 (Bankr. W.D. Mo. 1988). Similarly, the press articles that Bunzl attached are hearsay and do not indicate that Furrs was solvent on a balance sheet basis.

  5. In re Wallace's Bookstores, Inc.

    316 B.R. 254 (Bankr. E.D. Ky. 2004)   Cited 16 times
    Holding that the financial statements offered by the preference defendant "are insufficient per se to rebut the presumption of insolvency"

    Ms. Faulkner's report does not reflect that she investigated the collectibility of the shareholder receivable. See Thompson v. Jonovich (In re Food Fibre Prot., Ltd.), 168 B.R. 408, 417 (Bankr. D. Ariz. 1994); see also Carlson v. Rose (In re Rose), 86 B.R. 193, 195 (Bankr. W.D. Mo. 1988) (holding that rebutting presumption of insolvency required evidence of fair valuation of accounts receivable: "Accounts receivable need not be taken at face value when circumstances cast doubt on their collectibility."). Ms. Faulkner's deposition testimony adds little to the report, indicating that her inclusion of the receivable was based largely on the fact that the shareholder had repaid previous loans.

  6. In re Schwinn Bicycle Co.

    192 B.R. 477 (Bankr. N.D. Ill. 1996)   Cited 18 times

    [w]hile it is recognized that the statements made in a Debtor's schedule can constitute evidence which may be used in subsequent proceedings, the magnitude of the discrepancy between the scheduled values and the actual sales prices strongly suggests that any inference which could be drawn from the schedules is not worthy of serious consideration. Id.; accord, Carlson v. Rose (In re Rose), 86 B.R. 193, 195 (Bankr.W.D.Mo. 1988) (overstatement of value of assets in bankruptcy schedules is not sufficient to rebut presumption of insolvency); Howdeshell of Ft. Myers v. Dunham-Bush, Inc. (In re Howdeshell of Ft. Myers), 55 B.R. 470, 473 (Bankr.M.D.Fla. 1985) (court is not required to accept erroneous valuation in schedules); Friedman v. Ginsburg (In re David Jones Builder, Inc.), 129 B.R. 682, 692 (Bankr.S.D.Fla. 1991) (court may ignore valuations of debtor's assets that are overly optimistic or unrealistic); Miller Rhoads, Inc. Secured Creditors' Trust v. Airways Industries, Inc. (In re Miller Rhoads, Inc.), 146 B.R. at 956 (courts should rely on evidence more accurate than debtor's schedules such as current appraisals, opinion testimony or actual sales of assets when determining insolvency). 12.

  7. In re Tennessee Chemical Co.

    143 B.R. 468 (Bankr. E.D. Tenn. 1992)   Cited 13 times
    Rejecting contention of trustee's expert that preferred stock should be treated as debt for solvency analysis

    If the evidence of value is more complex, it goes beyond trying to save the presumption and gets into the basic question of solvency or not. Compare Pembroke Development Corp. v. A.P.L. Window (In re Pembroke Development Corp.), 122 B.R. 610 (Bankr.S.D.Fla. 1991), and Bluegrass Ford-Mercury, Inc. v. Farmers National Bank (In re Blue-grass Ford-Mercury, Inc.), 942 F.2d 381 (6th Cir. 1991); Carlson v. Rose (In re Rose), 86 B.R. 193 (Bankr.W.D.Mo. 1988); W.L. Mead, Inc. v. Central States Pension Fund (In re W.L. Mead, Inc.), 70 B.R. 651 (Bankr.N.D.Ohio 1986). See also Akers v. Koubourlis (In re Koubourlis), 869 F.2d 1319, 19 Bankr.Ct.Dec. 367 (9th Cir. 1989); Kreis v. Shope (In re Ressler), 61 B.R. 403 (Bankr.E.D.Tenn.

  8. In re Miller Rhoads, Inc.

    146 B.R. 950 (Bankr. E.D. Va. 1992)   Cited 19 times
    Finding that the debtor's "schedules were materially flawed, especially with regard to the real property values, and that the defendants' reliance on these values is insufficient to overcome the presumption of insolvency"

    Bigler v. American Mutual Liability Insurance Company (In the Matter of Bollinger Corp.), 11 C.B.C. 563, 565 (Bankr.W.D.Pa. 1976) ( citing, Horner v. Hamner, 249 F. 134 (4th Cir. 1918)). See also, Pembroke Development Corp., 122 B.R. at 612 ("current appraisals of a debtor's assets afford a more accurate determination of a debtor's solvency than can be had solely by reference to a balance sheet"); Knapp v. Applewhite (In re Knapp), 119 B.R. 285, 288 (Bankr.M.D.Fla. 1990); W.L. Mead, Inc. v. Central States Pension Fund (In re W.L. Mead, Inc.), 70 B.R. 651 (Bankr.N.D.Ohio 1986); Carlson v. Rose (In re Rose), 86 B.R. 193, 195 (Bankr.W.D.Mo. 1988) (overstatement of value of assets in bankruptcy schedules is not enough to rebut presumption of insolvency); Howdeshell of Ft. Myers v. Dunham-Bush, Inc. (In re Howdeshell of Ft. Myers), 55 B.R. 470, 473 (Bankr.M.D.Fla. 1985) (court is not required to accept erroneous valuation in schedules); Energy Cooperative, Inc. v. Cities Service Co. (In re Energy Cooperative,Inc.), 109 B.R. 822, 824 (Bankr.N.D.Ill. 1989). The evidence before this court demonstrates plainly that M R's schedules were materially flawed, especially with regard to the real property values, and that the defendants' reliance on these values is insufficient to overcome the presumption of insolvency under ยง 547(f).