In re Howell Enterprises, Inc., Bankruptcy No. HE 88-58M

• Court: United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — Eastern District of Arkansas
• Writing for the Court: JAMES G. MIXON
• Citation: 99 BR 413
• Parties: In re HOWELL ENTERPRISES, INC., Debtor. HOWELL ENTERPRISES, INC., Plaintiff, v. FIRST NATIONAL BANK IN STUTTGART, ARKANSAS, Defendant.
• Decision Date: 24 February 1989
• Docket Number: Bankruptcy No. HE 88-58M,Adv. No. 88-132.

99 B.R. 413 (1989)

In re HOWELL ENTERPRISES, INC., Debtor.
HOWELL ENTERPRISES, INC., Plaintiff,
v.
FIRST NATIONAL BANK IN STUTTGART, ARKANSAS, Defendant.

Bankruptcy No. HE 88-58M, Adv. No. 88-132.

United States Bankruptcy Court, E.D. Arkansas, Helena Division.

February 24, 1989.

99 BR 414

David M. Fuqua, N. Little Rock, Ark., for plaintiff.

Robert Dittrich, Stuttgart, Ark., for defendant.

ORDER

JAMES G. MIXON, Bankruptcy Judge.

On April 4, 1988, Howell Enterprises, Inc., (Howell) filed a voluntary petition for relief under the provisions of chapter 11 of the United States Bankruptcy Code. On April 11, 1988, Howell initiated this adversary proceeding against First National Bank in Stuttgart, Arkansas, (First National) to recover an alleged fraudulent conveyance. First National's answer to the complaint was filed approximately twenty days late, and Howell has asked the Court to enter a default judgment against First National.

The proceeding before the Court is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(H), and the Court has jurisdiction of this matter.

The facts are not in dispute. A copy of Howell's complaint, along with the summons and notice, was mailed on April 13, 1988, to the president of First National and to Robert Dittrich (Dittrich), counsel for First National. Dittrich testified that he prepared an answer and transmittal letter in late April or early May and assumed that it had been forwarded by his office staff to the Bankruptcy Clerk's office for filing. However, some time after the answer was due,¹ David Fuqua (Fuqua), attorney for Howell, notified Dittrich that he had not received a copy of the answer and that an answer had not been filed with the Bankruptcy Clerk's office. After a fruitless search for the missing answer, Dittrich prepared an answer identical to the first document and mailed copies to the Bankruptcy Clerk's office and Fuqua on June 2, 1988. The answer was file-marked by the Bankruptcy Clerk's office on June 6, 1988. On that same date, a motion for default judgment was filed by Howell.

Entries of default and default judgments are governed by Fed.R.Civ.P. 55, applicable in adversary proceedings in bankruptcy court through Bankruptcy Rule 7055. The rule provides in pertinent part as follows:

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party\'s default.

(b) Judgment. Judgment by default may be entered as follows:

(1) By the Clerk. When the plaintiff\'s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person.

(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor. . . . If the party against whom judgment by default is sought has appeared in the action, the party . . . shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to

...