In re Doan's Truck Repair, Inc., Bankruptcy No. 83-00258.
| Decision Date | 19 September 1983 |
| Docket Number | Bankruptcy No. 83-00258. |
| Citation | 34 BR 180 |
| Parties | In re DOAN'S TRUCK REPAIR, INC., a Wyoming corporation, Debtor. |
| Court | U.S. Bankruptcy Court — District of Wyoming |
Noel S. Hyde of Nielsen & Senior, Salt Lake City, Utah, for debtor.
Robert H. Johnson, Rock Springs, Wyo., for First Sec.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Based upon the verified application for order to show cause filed herein by the above-named debtor, an order to appear and show cause was served upon First Security Bank of Rock Springs, a secured creditor herein, on August 2, 1983. Said order to appear and show cause came on for hearing before the undersigned at the United States Bankruptcy Court in Cheyenne Wyoming, on August 25, 1983. Having considered the testimony of witnesses and arguments of counsel, and being fully advised in the premises, the court enters the following findings of fact and conclusions of law:
FINDINGS OF FACT
This court does find as follows:
1. Leon J. Doan, Jr. filed an individual voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code on April 5, 1983, with the debtor as a debtor-in-possession.
2. Doan's Truck Repair, Inc., a Wyoming corporation, filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code on April 28, 1983, with the debtor as a debtor-in-possession, which case was subsequently converted to a case under Chapter 7 of the United States Bankruptcy Code on July 18, 1983.
3. Leon J. Doan, Jr. and Doan's Truck Repair, Inc., are two separate and distinct entities.
4. At the time of the filing of his voluntary petition on April 5, 1983, Leon J. Doan, Jr. was the owner of certain real property located at 1616 West Second Street, Rock Springs, Wyoming (hereinafter referred to as the "business property"), said business property being subject to a first mortgage in favor of First Security in the amount of $403,140.94.
5. From and after April 5, 1983, and at all times relevant hereto, Doan's Truck Repair, Inc. was a tenant at sufferance in said business property pursuant to an oral lease agreement with Leon J. Doan, Jr.
6. On April 13, 1983, First Security filed an application to modify stay with respect to its interest in the business property in the individual case of Leon J. Doan, Jr.
7. Following a hearing on June 2, 1983, to consider First Security's application to modify stay, an order was entered on June 16, 1983 granting the relief requested in the individual case of Leon J. Doan, Jr.
8. On June 29, 1983, First Security conducted a foreclosure sale of its interest in the business property and purchased said property at the sale.
9. Between June 29, 1983 and July 7, 1983, First Security, through its officers and agents, took possession and control of the building in which Doan's Truck Repair, Inc., the above-named debtor, was conducting its business under the jurisdiction and control of the bankruptcy court. On June 29, First Security installed new locks on the gate and the front door of the building. Debtor was not given a key to the locks. A 24-hour security guard was stationed on the premises commencing June 29, who logged all persons and vehicles entering and leaving the premises. Even debtor's customers could not remove their property without permission of the bank. Debtor and its customers could only have access to the business premises with the consent of the bank. Even with consent the premises were accessible only during the hours the bank was open, which excluded evenings, weekends, and holidays. The bank prevented removal from the premises, without permission of the bank, parts and vehicles which were owned by debtor and its customers. The bank refused to allow debtor to use its wrecker truck or testing equipment off of the premises. The bank was a secured creditor, but had not requested or obtained modification of the stay until after July 7, 1983. On one occasion the bank authorized another secured creditor to remove a lathe from the premises. That secured creditor had not requested or received modification of the automatic stay. On July 4, 1983, debtor was ordered to vacate the premises. The last time debtor was on the premises was July 7, 1983. No relief from automatic stay had been requested or received for such action.
10. The effects of the acts of First Security between June 29, 1983 and July 7, 1983, in limiting the debtor's access to the business property and controlling the debtor's use of equipment and other property located thereon, were to dispossess the debtor from the business premises and to force the cessation of regular business being conducted by the debtor.
11. The acts undertaken by First Security between June 29, 1983 and July 7, 1983, with respect to the interests of the above-named debtor in the business property and equipment located thereon, were undertaken without prior request to or approval of this Court.
12. From and after June 29, 1983, the debtor incurred the following reasonable and necessary expenses, which would not have been incurred but for the acts of First Security as described in paragraphs 9 and 10 above:
(a) Telephone service deposit $ 450.00
(b) Telephone line connection fee 300.00
(c) Forklift rental 549.12
(d) Truck rental 1,408.08
(e) Packaging materials (boxes) 283.92
(f) Additional laborers to assist in
moving 2,500.00
(g) Diverted employees—
(1) Joann Brennan 750.00
(2) Elaine Corinne 1,005.00
(3) Russ Losier 1,380.00
(4) Leon J. Doan, Jr....To continue reading
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