Cite as: [Unpublished]
re Staber W. Reese, Jr., Audrey M. Reese, Debtors
Bankruptcy Case No. 85-01498-7
United States Bankruptcy Court
W.D. Wisconsin, Eau Claire Division
May 15, 1987
Barbara A. Hermanson, for
John H. Ames, for trustee.
Michael F. Roe, for DeByle, Inc.
Thomas S. Utschig, United States Bankruptcy Judge.
MEMORANDUM OPINION, FINDINGS OF FACT,
AND CONCLUSIONS OF LAW
DeByle, Inc. (DeByle), by Michael F. Roe, has filed a motion requesting the court to
vacate the order entered on December 31, 1986. The debtors appear by Barbara A. Hermanson.
The trustee, Arthur L. Eberlein, appears by John H. Ames and objects to the motion. DeByle
also requests that the court enjoin the trustee from disbursing funds that he has
The facts in this case are not complicated. In July of 1985 a judgment was entered in
Wisconsin state court proceedings in which DeByle became obligated to pay the debtors. On
August 1, 1985, the debtors filed their bankruptcy petition. DeByle received notice of the
debtors' bankruptcy filing. DeByle failed to timely file an appeal from the Wisconsin
state court judgment. DeByle argues that it did not timely file the notice of appeal
because it believed it was stayed from filing such notice by the 11 U.S.C. § 362
DeByle filed a motion for relief from stay on December 18, 1985. That motion was
granted on January 16, 1986. DeByle filed a notice of appeal in Wisconsin state court
proceedings on February 15, 1986. The Court of Appeals requested briefs on the issue of
whether the notice of appeal had been timely filed. The Wisconsin Court of Appeals on
March 20, 1986, issued an order dismissing the appeal because it had not been timely filed
under Wisconsin law. DeByle then petitioned the Wisconsin Supreme Court for a review of
the Court of Appeals decision. The petition for review was denied on July 25, 1986.
DeByle now intends to commence an action in the United States District Court seeking
relief from the state court decisions.
DeByle filed a motion in this bankruptcy case to prohibit the trustee from initiating
further collection activity on October 22, 1986. On November 5, 1986, the trustee filed a
motion for a turnover order pursuant to the state court judgment. A hearing was held on
these motions on December 17, 1986, at which DeByle failed to appear. The court granted
the trustee's motion and denied DeByle's motion at the scheduled hearing. This order was
reduced to writing and entered on December 31, 1986.
DeByle filed a motion on January 16, 1987, for rehearing and/or reconsideration of the
order entered at the hearing of December 17, 1986. In support for its motion DeByle argues
that it did not receive notice of the hearing. DeByle further requests that the court
enjoin the trustee from disbursing any of the funds that were collected on account of the
state court judgment. A telephone conference was held in this matter on March 10, 1987, at
which DeByle was ordered to file a memorandum in support of its motion by
March 31, 1987. This order was reduced to writing and entered on March 18, 1987. DeByle
did not timely file its memorandum as ordered. The court received a memorandum from DeByle
on April 13, 1987, that was apparently mailed on April 10, 1987.
Initially, the court notes that generally when a party requests injunctive relief in a
bankruptcy case an adversary proceeding is necessary. Bankruptcy Rule 7001. DeByle has not
started an adversary proceeding. The court also notes that a substantial period of time
expired after the hearing on December 17, 1986, before DeByle requested a rehearing. It
further appears that DeByle did not timely file its brief as ordered by the Bankruptcy
Court. It is the opinion of the Court, based on the facts and circumstances of this
bankruptcy case, after a full review of the file, and upon reading the legal memoranda
provided with appropriate consideration and weight given thereto that the motion of
DeByle, Inc., should be denied.
This opinion shall constitute findings of fact and conclusions of law in accordance
with Bankruptcy Rule 7052.