In re Hoey

• Citation: 364 B.R. 427
• Decision Date: 22 September 2005
• Docket Number: Bankruptcy No. 00-35503-BKC-SHF.,Adversary No. 02-3064-BKC-SHF-A.
• Parties: In re William E. HOEY, Debtor. James. A. Bonfiglio, Esq. and James A. Bonfiglio, P.A., Plaintiffs, v. William E. Hoey, and Shirley M. Hoey, Donald Baltrus, Mortgage Works Unlimited, Inc., Gordon Kenyon, Rochelle Kenyon, Gary W. Fox, Francis v. Childs, Trustee, and Deborah Menotte, Trustee, Defendants.
• Court: United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Florida

364 B.R. 427 In re William E. HOEY, Debtor.
James. A. Bonfiglio, Esq. and James A. Bonfiglio, P.A., Plaintiffs,
v.
William E. Hoey, and Shirley M. Hoey, Donald Baltrus, Mortgage Works Unlimited, Inc., Gordon Kenyon, Rochelle Kenyon, Gary W. Fox, Francis v. Childs, Trustee, and Deborah Menotte, Trustee, Defendants. Bankruptcy No. 00-35503-BKC-SHF. Adversary No. 02-3064-BKC-SHF-A. United States Bankruptcy Court, S.D. Florida. September 22, 2005.

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Beckett & Lee LLP, Malvern, PA, James A. Bonfiglio, Boynton Beach, FL, Leslie Gem Cloyd, Ft. Lauderdale, FL, Thomas D. DeCarlo, West Palm Beach, FL, Dario D. Diaz, Tampa, FL, Steven Ellison, West Palm Beach, Peter Max Fallon, Tampa, FL, James L. Fly, Orlando, FL, Kenneth M. Jones, Plantation, FL, Chad S. Paiva, Stuart, FL, Shamila Sharma, Tampa, FL, for creditors.

William E. Hoey, Charlotte, NC, pro se.

Deborah Menotte, West Palm Beach, FL, trustee.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR FINAL SUMMARY JUDGMENT AS TO COUNT I OF THE AMENDED COMPLAINT AND DENYING IN PART AND GRANTING IN PART THE CHILDS GROUP'S CROSS-MOTION FOR SUMMARY JUDGMENT

STEVEN H. FRIEDMAN, United States Bankruptcy Judge.

THIS CAUSE came on to be heard on February 2, 2005 upon the Plaintiffs' Motion for Final Summary Judgment and the Defendants' Motion for Partial Summary Judgment. The bankruptcy case of William E. Hoey, Case No. 00-35503-BKCSHF was commenced on December 11, 2000, with the debtor's filing of his voluntary

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chapter 7 petition. Among the creditors listed in the debtor's bankruptcy schedules are James A. Bonfiglio, Esq. and James A. Bonfiglio, P.A. (collectively, "Plaintiffs") as being owed an unsecured debt in the amount of $200,000.00. On March 7, 2002, the instant adversary proceeding was filed by Plaintiffs, seeking a determination of the rights of the respective parties to the adversary proceeding as against the real property located at 345 Lantern Bay Drive, Jupiter, Florida, and establishing the priority of the charging lien asserted by Plaintiffs as being superior to the property interests of any of the Defendants to this adversary proceeding. On February 26, 2004 this Court entered its Order Partially Granting Plaintiff's Motion for Partial Summary Judgment as to Count I of the Amended Complaint and Denying the Childs Group's Cross Motion for Summary Judgment (C.P. 79), determining that the charging lien of Plaintiffs has priority over the mortgage held by Francis V. Childs, Gary Fox, Gordon Kenyon, and Rochelle Kenyon ("Defendants"). Plaintiffs now seek turnover of the remaining proceeds generated from the sale of the debtor's real property and additionally seeks interest, costs and attorney's fees pursuant to 11 U.S.C. § 506(b). The Court, having considered the testimony, argument presented and being otherwise duly advised in the premises, grants in part Plaintiffs' Motion for Final Summary Judgment and grants in part the Defendants' Motion for Partial Summary Judgment.

This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 1334, 157(b)(1) and 157(b)(2)(I). This is a core matter in accordance with 28 U.S.C. § 157(b)(2)(I). Federal Rule of Civil Procedure 56(c), made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056, provides that "the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show...