In re Deiss

• Citation: 166 BR 92
• Decision Date: 31 March 1994
• Docket Number: Bankruptcy No. 93-47430-H3-13. Adv. No. 93-4612.
• Court: United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
• Parties: In re Paul E. DEISS, Debtor. Paul E. DEISS, Plaintiff, v. SOUTHWEST RECOVERY, U.S.A. Recovery, and Tire, Wheel & Hub Depo, Defendants.

166 B.R. 92 (1994)

In re Paul E. DEISS, Debtor.

Paul E. DEISS, Plaintiff, v. SOUTHWEST RECOVERY, U.S.A. Recovery, and Tire, Wheel & Hub Depo, Defendants.

Bankruptcy No. 93-47430-H3-13. Adv. No. 93-4612.

United States Bankruptcy Court, S.D. Texas, Houston Texas.

March 31, 1994.

Samuel L. Millege, Houston, TX, for debtor.

David Dickinson, Butler, Ewalt & Hailey, Houston, TX, for Southwest Recovery, et al.

MEMORANDUM OPINION

LETITIA Z. CLARK, Bankruptcy Judge.

This matter originated as a Complaint for Turnover of a 1993 Ford Mustang to Debtor by Southwest Recovery, an organization that repossess motor vehicles. The court makes the following Findings of Fact and Conclusions of Law and enters a separate Judgment in conjunction herewith, regarding turnover upon certain payments and adequate protection. To the extent any Findings of Fact herein are construed to be Conclusions of Law, they are hereby adopted as such. To the extent any Conclusions of Law herein are construed to be Findings of Fact, they are hereby adopted as such.

Deiss ordered "wheels" for the 1993 Mustang from Tire, Wheel and Hub ("TWH"). Henry Leon of TWH testified credibly concerning the facts surrounding this transaction. After TWH had rendered its services, Deiss picked up the vehicle and gave TWH a check for $750.00. He asked Leon to hold the check for a day so he, Deiss, could return and give Leon cash and retrieve the check. Leon did as he was asked. Deiss did not return, nor respond to telephone calls, so Leon deposited the check. It was returned NSF. Leon continued to attempt to call Deiss without success, including over 20 calls, by himself and his secretary, and leaving messages with Deiss' mother — and then turned the matter over to Southwest Recovery.

Southwest Recovery testified through Howard Bushman that it generally charges $1,000.00 for a repossession. This includes the necessary efforts to locate the vehicle.

The Mustang is registered in the name of Paul Deiss and his father, Egon Deiss. Paul Deiss testified that Egon Deiss also owns another vehicle, a Pontiac. Paul Deiss' schedules, of which the court takes judicial notice, reflect that he owns a 1992 Chevrolet Cavalier as well as the 1993 Mustang. He testified his father drives it. The only evidence before the court on the value of the Mustang is in Deiss' schedules, showing a value of $16,625.00.

Bushman testified that this repossession was unusually difficult because Deiss had moved recently. When he did locate Deiss, he found that Deiss watched the car closely. Several trips by Southwest Recovery were necessary to gain possession of the vehicle. The court found his testimony on this subject credible. Bushman testified that time involved in this repossession considerably exceeded the time usually needed to accomplish a repossession. His charge for this repossession was $1,700.00. He is subsequently charging $15.00 a day storage plus tax, for a total of $16.25 a day, plus his attorney's fees. Southwest Recovery and TWH are both listed in Deiss' schedules as holding secured mechanics liens.

Deiss had no credible explanation for his failure to pay Leon (TWH). His concern over the charges of Southwest Recovery is understandable, but these charges were brought on by his own actions, and were the more substantial due to the difficulty that both Leon and Southwest Recovery experienced in locating him. He gave no credible reasons for his failure to return calls, and the court finds he deliberately made himself difficult to reach.

Deiss is proposing to pay for the various charges through the plan in Ch. 13. He is also continuing to pay General Motors Acceptance Corporation ("GMAC") for the vehicle. Southwest Recovery insists that it be given the full amount owed before it turns over the vehicle.

A claim is secured to the extent of the value of the property on which the lien is fixed. 11 U.S.C. § 506. The Court holds that TWH and Southwest Recovery are secured to the extent of value their services and goods supplied, including storage, up to $16,625.00. Post-petition interest is permitted to the extent these claims are oversecured. Lincoln Sav. Bank, FSB v. Ron Pair Enter., 880 F.2d 1540, 1549 (2nd Cir.1989) (interpreting United States v. Ron Pair Enter., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)); City of Farmers Branch v. Pointer, 952 F.2d 82 (5th Cir. 1992), cert. denied, ___ U.S. ___, 112 S.Ct. 3035, 120 L.Ed.2d 904 (1992). However, attorneys' fees are not recoverable,...