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concluding that the court would appoint an elisor to execute documents if bankruptcy party failed to comply with court order
Summary of this case from Sec. & Exch. Comm'n v. BIC Real Estate Dev. Corp.Opinion
Case No. 11-20034-PB7 Adv. No. 13-90151-PB
06-18-2014
In re JONGWON KIM and MYO RYUNG KIM, Debtors RICHARD M. KIPPERMAN, Chapter 7 Trustee, Plaintiff, v. JONGWON KIM, MYO RYUNG KIM and SONG K. MUN aka SUNG KEUN MOON, Defendants.
WRITTEN DECISION - NOT FOR PUBLICATION
ORDER ON TRUSTEE'S MOTION TO ENFORCE SETTLEMENT AND FOR PRELIMINARY INJUNCTION
At the center of the present dispute is the bankruptcy estate's interest in real property located in South Korea. Debtor Kim has filed proceedings in the South Korea court to release a provisional lien filed by Ms. Kwon, while she has asserted a claim against the plaintiff Kim in South Korea. It does not appear that Ms. Kwon has filed a claim in the bankruptcy case, although she was listed as an unsecured creditor on Schedule F. Meanwhile, post-petition, Mr. Mun was granted a lien on the South Korea property by Mr. Kim without any court authorization.
Both matters went to mediation and resulted in agreements, although the Kims were dragging their feet in executing the necessary documents. The litigation in South Korea is ongoing. Mr. Mun is reluctant to release his lien, as he agreed to do, while the South Korea litigation proceeds, and while the Kims have not executed the necessary documents.
All parties apparently need to be reminded that the South Korea property is property of this bankruptcy estate and is protected by the automatic stay of 11 U.S.C. § 3 62. That means, among other things, that no legal actions may be taken against the property anywhere else than before this Court, unless authorization has been obtained from this Court. No lien may be obtained or perfected; no execution of a judgment may proceed against the property; and it makes no legal difference that the subject property is located in South Korea. It is well established that the automatic stay has extraterritorial effect as to any property of the bankruptcy estate, "wherever located and by whomever held...." 11 U.S.C. § 541 (a); 28 U.S.C. § 1334(e). In re Lykes Bros. Steamship Co., Inc., 201 B.R. 282, 287 (Bankr.M.D.Fla. 1997); In re Nakash, 190 B.R. 763, 768 (Bahkr.S.D.NY 1996). See, also In re Simon, 153 F.3d 991 (9th Cir. 1998) (applying same analysis to the extraterritorial reach of a bankruptcy discharge injunction). All parties are reminded that consequences of a violation of the automatic stay of 11 U.S.C. § 362 will result in an award of damages under § 362(k), which may include punitive damages, as well, in appropriate circumstances.
All of the forgoing said, it is clear from the uncontroverted pleadings that Mr. Mun has failed to comply with the terms of the settlement he made with the trustee in this case. Moreover, it is equally clear that enforcement of Mr. Mun's obligation to release his lien on the South Korea property is the only effective remedy available. Accordingly, the Court orders that Mr. Mun must provide to counsel for the trustee properly notarized documents providing for the release of Mr. Mun's claim against the South Korea property, legally sufficient under South Korean law to record said release of his claim.
Mr. Mun is ordered to provide those documents to counsel for the trustee by July 2, 2014. If Mr. Mun fails to do so timely, counsel for the trustee may submit an order to this Court for the appointment of an elisor to sign such documents on Mr. Mun's behalf.
In the meantime, the previously agreed upon injunction remains in full force and effect.
IT IS SO ORDERED. DATED: JUNE 18, 2014
/s/_________
PETER W. BOWIE, Judge
United States Bankruptcy Court
CERTIFICATE OF MAILING
The undersigned, a regularly appointed and qualified clerk in the office of the United States Bankruptcy Court for the Southern District of California, at San Diego, hereby certifies that a true copy of the attached document, to wit:
ORDER ON TRUSTEE'S MOTION TO ENFORCE SETTLEMENT AND FOR PRELIMINARY INJUNCTIONwas enclosed in a sealed envelope bearing the lawful frank of the bankruptcy judges and mailed to each of the parties at their respective addresses listed below: Timothy J. Sullivan
110 Juniper St.
San Diego, CA 92101
Jongwon Kim
Myo Ryung Kim
1242 Old Canyon Drive
Hacienda Heights, CA 91745
Song K. Mun
20660 N. 40th Street, #1053
Phoenix, AZ 85050
Said envelope(s) containing such document was deposited by me in a regular United States Mail Box in the City of San Diego, in said District on June 18, 2014.
/s/_________
Lisa Cruz, Deputy Clerk
Notice Recipients
| District/Off: 0974-3 | User: llewis | Date Created: 6/18/2014 |
| Case: 13-90151-PB | Form ID: pdfO1 | Total: 3 |
Recipients of Notice of Electronic Filing:
aty Timothy J. Sullivan tjscls@aol.com
TOTAL: 1 Recipients submitted to the BNC (Bankruptcy Noticing Center):
dft Jongwon Kim 1242 Old Canyon Drive Hacienda Heights, CA 91745
dft Song K Mun 22660 N. 40th St. #1053 Phoenix, AZ 85050
TOTAL: 2