Opinion
Case No. 9:15-bk-4241-FMD
11-14-2019
In re: Benjamin H. Yormak, Debtor.
Chapter 7 ORDER DENYING CREDITOR STEVEN R. YORMAK'S MOTION FOR CONTEMPT ORDER AND SANCTIONS AGAINST SETH E. MILES , BRETT E. VON BORKE, DAVID M. BUCKNER, AND THE LAW FIRM OF BUCKNER + MILES
THIS CASE came before the Court without a hearing to consider Creditor Steven R. Yormak's Motion for Contempt Order and Sanctions against Seth E. Miles, Brett E. Von Borke, David M. Buckner, and the Law Firm of Buckner + Miles (the "Motion").
Doc. No. 661.
In the Motion, Steven R. Yormak ("Creditor") asserts that Seth E. Miles, Brett E. von Borke, David M. Buckner, and the law firm of Buckner + Miles (together, "Respondents") should be found in contempt for violating this Court's Order Arising from Status Conference on Trustee's Corrected Motion to Determine that Attorney's Fees in CBL Litigation Are Property of the Estate (the June 17, 2019 Order). Creditor alleges that Respondents have received attorney's fees due to Debtor, Benjamin H. Yormak, in connection with a case pending in the United States District Court for the Middle District of Florida styled Wave Length Hair Salons of Florida, Inc. v. CBL & Associates, Inc., Case No. 2:2016-cv-00206 (the CBL Litigation), and that Respondents violated the June 17, 2019 Order by failing to pay attorney's fees due to Debtor to the Chapter 7 Trustee in this bankruptcy case.
Doc. No. 598.
For a court to find a party in contempt for violating an order, "the offending party must have knowingly and willfully violated a definite and specific court order." "The requirements of the order violated must be clear." Here, the June 17, 2019 Order provides only that any attorney's fees due to Debtor from the CBL Litigation shall be paid directly to the Trustee; it does not identify the specific parties who are subject to the Order, does not provide a date by which the fees must be paid, and does not set forth any other requirements or details for payment. Additionally, it appears that Respondents filed a Motion to Mediate Entitlement and Allocation of Fees in the CBL Litigation on October 15, 2019, and asked the District Court to direct the parties to mediation regarding the allocation of the fees.
In re Dorado Marine, Inc., 343 B.R. 711, 713 (Bankr. M.D. Fla. 2006)(citing In re Alamo, 239 B.R. 623 (Bankr. M.D. Fla. 1999)).
In re Hamrick, 551 B.R. 860, 862 (Bankr. N.D. Fla. 2016).
Exhibit 3 to Doc. No. 661.
For these reasons, the Court cannot find that Respondents knowingly and willfully violated a definite and specific court order, and Creditor's Motion is denied. In addition, it is the Chapter 7 Trustee's responsibility and duty to collect assets of the estate.
11 U.S.C. § 704(a)(1). --------
Accordingly, it is
ORDERED that the Motion is denied, without prejudice to the Chapter 7 Trustee's right to file a motion to compel compliance with the June 17, 2019 Order.
DATED: November 14, 2019. /s/ Caryl E. Delano
Caryl E. Delano
Chief United States Bankruptcy Judge