Decisions of 2010


Bagley-UST vs. Lopano - Sanctions - September 20, 2010
Case No. 09-61439-7

In this adversary proceeding the United States Trustee (“UST”) filed a motion for contempt on June 11, 2010 (Docket No. 19), and this Court ordered the Defendant Vincent Lopano (“Lopano”) to appear and show cause why he should not be held in civil contempt and subject to sanctions for continuing to act as a bankruptcy petition preparer (“bpp”) in violation of 11 U.S.C. § 110 and the injunction issued by this Court in the Judgment entered on April 16 2010 (Dkt. 13). The show cause hearing was continued and the UST was authorized to conduct post-judgment discovery, and the show cause hearing was held at Missoula on September 9, 2010. Lopano failed to appear at the hearing as ordered by this Court.
The UST was represented by attorney Daniel P. McKay (“McKay”), who offered Exhibits (“Ex.”) 1, 2, 3, 4,
5, 6, and 7 for admission and argued that the Court should hold Lopano in contempt for violation of the injunction, and for failure to respond to the UST’s post-judgment discovery. The Court admitted Ex. 1, 2, 3, 4, 5, 6, and 7 into evidence. After review of the Exhibits and the record, including the injunction contained in Dkt. 13, the Court found that the UST had satisfied his burden of proof to show by clear and convincing evidence that Lopano is in contempt of this Court. The Court directed the UST to file an affidavit of fees and costs, which was filed by Declaration on September 14, 2010, in which McKay itemized 7.0 hours of attorney time researching contempt issues, preparing witness lists and exhibits and discovery, and preparing for and attending the September 9, 2010, show cause hearing. The UST requests attorney’s fees in the amount of $1,190, and nothing for costs. The Court finds that the amount of attorney’s fees requested is reasonable, and appropriate.
The Judgment entered by this Court (Dkt. 13) includes an injunction which provides “that Defendant Vincent Lopano, d/b/a bankruptcyseven.com, is permanently enjoined from engaging in any conduct in violation of 11 U.S.C. § 110, and is permanently enjoined from acting as a bankruptcy petition preparer in this District or in any other federal judicial district in the United States.” McKay stated at the hearing that Lopano failed to respond to the UST’s post-judgment discovery requests, and that he attempted a subterfuge to get around the injunction by changing the name of his internet website while continuing to act as a bankruptcy petition preparer. The UST’s evidence is uncontroverted.

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Case No. 09-61439-7
In this adversary proceeding the Plaintiff United States Trustee (“UST”) filed on March 26, 2010, a motion seeking summary judgment (Docket No. 11) against Defendant Vincent Lopano (“Lopano”), together with a Statement of Uncontroverted Facts (“SOUF”), memorandum of law, and exhibits. The UST seeks a money judgment against Lopano imposing fines for violations of 11 U.S.C. § 110, disgorgement of all fees charged by Lopano as a bankruptcy petition preparer (“BPP”) in this and other cases, and requests entry of a permanent injunction against Lopano enjoining him from advertising or acting as a BPP. Lopano filed an answer denying liability, but did not file a response to the motion for summary judgment. After review of the UST’s motion, memorandum of law, the record and applicable law, the UST’s motion will be granted and summary judgment will be entered against Lopano awarding the relief sought, for the reasons set forth below.
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Big Springs Realty - Crum vs. Blixseth -Core Proceedings - March 18, 2010

Case No. 09-61079-7

In this Adversary Proceeding, the Plaintiff filed a Motion for Determination of Core Proceeding on November 24, 2009, at docket entry no. 56, requesting that this Court enter, pursuant to 28 U.S.C. § 157(b)(3), an order that this Adversary Proceeding is a core proceeding.� This Adversary Proceeding was commenced on September 3, 2009, when the Plaintiff/Trustee filed a Complaint against the Defendant, Timothy L. Blixseth (“Blixseth”), requesting that the Court set aside and void certain distributions by the Debtor to Blixseth, that the Court enter judgment against Blixseth for the amount of the distributions and for prejudgment interest, and that the Court award the Plaintiff/Trustee her attorney fees and costs to the extent allowed by applicable rule or law. Blixseth filed an Answer to the Plaintiff/Trustee’s Complaint on October 28, 2009.
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Big Springs Realty - Crum vs. Blixseth - Injunction - March 18, 2010

Case No. 09-61079-7

Pending in this Adversary Proceeding are Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction filed November 20, 2009, at docket entry no. 49, and Plaintiff’s Application for Prejudgment Writ of Attachment filed January 27, 2010, at docket entry no. 130. A hearing on Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction was held December 8, 2009, in Butte and a hearing on Plaintiff’s Application for Prejudgment Writ of Attachment was held February 22, 2010, in Missoula. The Plaintiff was represented at the hearings by Robert K. Baldwin and Trent M. Gardner of Bozeman, Montana. The Defendant was represented at the hearings by Daniel D. Manson of Butte, Montana and Philip H. Stillman of Olivehain, California.
In the pending Motion for Temporary Restraining Order and Preliminary Injunction, the Plaintiff seeks an order preventing the Defendant from transferring, encumbering, conveying, or disposing of any assets whatsoever until further order of this Court. Also in such Motion, Plaintiff moves the Court for sanctions for contempt of court and discovery violations. Given the events that have transpired in this case, Plaintiff’s Motion for Temporary Restraining Order and request for sanctions are moot. The only matter still viable is Plaintiff’s Motion for Preliminary Injunction.
In the Application for Prejudgment Writ of Attachment, the Plaintiff/Trustee seeks to attach the Defendant’s distributional interest in Desert Ranch, LLLP, a Nevada Limited Liability Limited Partnership. To accomplish such, Plaintiff requests that the Court issue a writ to the United States Marshal in Montana, for Timothy L. Blixseth, as manager of Desert Ranch Management, LLC, which is the General Partner of Desert Ranch, LLLP. In the alternative, Plaintiff requests that the Court order Defendant to bring all evidence of his ownership in Desert Ranch, LLLP to Montana so the Sheriff can take possession of such papers.

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Big Springs Realty - Crum vs. Blixseth - Reconsider - May 28, 2010

Case No. 09-61079-7

In this Adversary Proceeding, after due notice, a hearing was held May 11, 2010, in Butte on: (1) the Plaintiff Darcy M. Crum’s (“Crum”) Motion to Strike Defendant’s Jury Demand filed March 2, 2010, at docket entry no. 147; (2) Defendant Timothy L. Blixseth’s (“Blixseth”) Motion for Reconsideration filed March 23, 2010, at docket entry no. 157; and (3) Blixseth’s Motion for Leave to File a First Amended Answer filed April 1, 2010, at docket entry no. 160. Trent M. Gardner of Bozeman, Montana appeared at the hearing on behalf of Crum and Daniel D. Manson of Butte, Montana appeared on behalf of Blixseth. The Court heard argument from counsel, but no witness testimony was presented and no exhibits were offered into evidence.
1. Crum’s Motion to Strike Defendant’s Jury Demand.
In the Motion to Strike Defendant’s Jury Demand, Crum seeks an order striking Blixseth’s jury demand. Crum also requests that the trial in this matter be conducted as a judge trial before the Bankruptcy Court with the undersigned presiding. Crum contends that the nature of Blixseth’s affirmative defenses subjects him to the equitable jurisdiction of this Court because Blixseth is asserting a claim against the bankruptcy estate. Specifically, Crum cites to the following affirmative defenses contained in Blixseth’s Answer filed October 28, 2009, at docket entry no. 26:

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Big Springs Realty - Crum vs. Blixseth - Sanctions - January 11, 2010

Case No. 09-61079-7

In this Adversary Proceeding, after due notice, a hearing was held January 5, 2010, in Butte on the Plaintiff’s Motion for Sanctions filed November 20, 2009, at docket entry no. 47; and Plaintiff’s Request for a Ruling filed December 23, 2009, at docket entry no. 103. Robert K. Baldwin and Trent M. Gardner of Bozeman, Montana appeared at the hearing on behalf of the Plaintiff, and Daniel D. Manson of Butte, Montana and Philip H. Stillman of Encinitas, California appeared on behalf of the Defendant. At the hearing, the Court heard argument from counsel, but no witness testimony or exhibits were offered.
Plaintiff’s Request for a Ruling filed December 23, 2009, relates to the Plaintiff’s Motion for Determination of Core Proceeding filed November 24, 2009. Plaintiff’s Motion for Determination of Core Proceeding and Motion for Temporary Restraining Order and Preliminary Injunction are under advisement and will be addressed by separate order. Plaintiff’s Request for a Ruling is, therefore, deemed under advisement and will be addressed in the separate order on the Motion for Determination of Core Proceeding and Motion for Temporary Restraining Order and Preliminary Injunction.
At the hearing held January 5, 2010, this Court granted Plaintiff’s Motion for Sanctions.� This Order expounds upon, clarifies and memorializes the Court’s oral ruling. In a vacuum, the Court’s imposition of sanctions against Blixseth may seem harsh. However, the Court’s ruling was not made in a vacuum but rather, includes a plethora of information and facts that the Court has learned not only from this Adversary Proceeding, but also from other various related cases over which I have presided.1 A little background perhaps puts the Court’s ruling in perspective.

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BLX Group Casa Captive vs. Blixseth - Motion to Amend - June 8, 2010

Case No. 09-61893-11

In this adversary proceeding several matters are pending, including (1) motion for judgment on the pleadings (Docket No. 68) filed by Defendant Carl A. Eklund, as Chapter 11 Trustee (“Trustee”) of the Estate of BLX Group, Inc. (“Estate”), and Plaintiffs’ objection thereto (Dkt. 82); motion to dismiss Claim Two of the amended complaint for lack of standing filed by Defendant Liner Grode Stein Yankelevitz, Sunshine Regenstreif & Taylor LLP (“Liner”) (Dkt. 76) and Plaintiffs’ objection thereto (Dkt. 85); and Plaintiffs’ Applications for leave to file second amended complaint (Dkt. 89) and for leave to file an amended answer to the Trustees and Estate’s counterclaim (Dkt. 90), and objections thereto filed by the Trustee and Estate (Dkt. 108) and by Liner (Dkt. 109). A hearing on these matters was held at Butte on April 6, 2010. The parties appeared represented by counsel and the Court heard oral argument. At the conclusion of oral argument the Court deemed the matters submitted and took them under advisement. After review of the motions, Applications, objections, responses, replies, and applicable law, these matters are ready for decision. For the reasons set forth below, based on the liberal rule for amendment of pleadings under Fed. R. Civ. P. 15(a)(2) in the Ninth Circuit, the Defendants’ objections are overruled and Plaintiffs’ Applications to file second amended complaint and to file amended answer both will be granted; the Trustee’s and Estate’s motion for judgment on the pleadings, to which Liner filed a joinder, will be denied; and Liner’s motion to dismiss Claim Two of Plaintiffs’ amended complaint will be denied.
The parties admit that this Court has subject matter jurisdiction of this adversary proceeding under 28 U.S.C. § 1334 and 28 U.S.C. § 157(c). This is a core proceeding under 28
U.S.C. § 157(b)(2).
No testimony or exhibits were admitted at the April 6, 2010, hearing. Plaintiffs were represented by attorney Joe E. Edwards (“Edwards”) of Day, Edwards, Propester & Christensen of Oklahoma City, Oklahoma. The Trustee and Estate were represented by the Trustee Carl Eklund, and by attorneys Vincent J. Marriott, III, and Joel E. Tasca (“Tasca”) of Ballard Spahr LLP, Philadelphia, PA. Liner was represented by attorneys Ellyn S. Garofalo (“Garofalo”) and Peter E. Garrell of Los Angeles, CA. Defendant Edra D. Blixseth (“Edra”) was represented by attorney Gary S. Deschenes of Great Falls, MT. The Court heard oral argument from Edwards for the Plaintiffs, and Tasca for the Trustee and Estate. Garofalo stated that Liner joins the argument of the Trustee and Estate

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BLX Group - Settlement - June 15, 2010

Case No. 09-61893-11

In this Chapter 11 bankruptcy, Carl A. Eklund (“Trustee”), the Chapter 11 Trustee herein, filed an Amended Motion Under Rule 9010 of the Bankruptcy Rules for Order Approving Settlement with CIP Yellowstone Lending, LLC on April 27, 2010. Richard J. Samson, as trustee for the Chapter 7 bankruptcy estate of Edra D. Blixseth (the “Edra Blixseth Trustee”) filed an Objection to the Trustee’s Amended Motion on May 14, 2010; Western Capital Partners, LLC filed an Objection to the Trustee’s Amended Motion on May 15, 2010; and Timothy L. Blixseth filed an Objection on May 15, 2010, and an Amended Objection to the Trustee’s Amended Motion on May 16, 2010. Marc S. Kirschner, as Trustee of the Yellowstone Club Liquidating Trust, filed a joiner to the Trustee’s Amended Motion on June 3, 2010. After due notice, a hearing on approval of the Trustee’s Amended Motion and the objections thereto, was held June 7, 2010, in Butte. Vincent J. Marriott, III of Philadelphia, Pennsylvania, Jon Bernhardt of Denver, Colorado and Steven Johnson of Great Falls, Montana appeared at the hearing on behalf of the Trustee; Christopher J. Conant of Denver, Colorado appeared on behalf of Western Capital
Partners, LLC; the Edra Blixseth Trustee, Richard J. Samson of Missoula, Montana appeared at the hearing; Daniel D. Manson of Butte, Montana appeared on behalf of Timothy L. Blixseth; Paul D. Moore and Barry Green of Boston, Massachusetts appeared on behalf of CrossHarbor Capital Partners LLC and CIP Yellowstone Lending LLC (CIP”); and Daniel P. McKay of Great Falls, Montana appeared on behalf of the United States Trustee. Carl A. Eklund and Matthew Kidd testified. The Trustee’s Demonstrative Exhibits 1 through 6 and the Trustee’s Exhibits 7 through 11 were admitted into evidence without objection.

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Brown - Avoid Lien - October 14, 2010

Case No. 10-60467-13

In this Chapter 13 bankruptcy, after due notice, the Court held a hearing on September 20, 2010, in Billings on Debtors’ “Amended Motion for Order to Avoid Lien of Second Trustee Deed Holder Altana Federal Credit Union” filed April 23, 2010, at dkt. 19. At the hearing, Mark S. Hilario of Billings, Montana represented Debtors; and Margy Bonner of Billings, Montana, represented Altana Federal Credit Union (“Altana”). Real estate appraisers David Moen and Wendi Bruner testified as did the Vice President of Lending at Altana, Royal Carireau. The Court admitted Debtors’ Exhibits 1 and 2 and Altana’s Exhibits A, B and D into evidence. At the conclusion of the parties’ cases-in-chief, the Court took the matter under advisement. This Memorandum of Decision sets for the Court’s findings of fact and conclusions of law.
BACKGROUND
Debtors’ built their home in 2007. Debtor’s home is located on 1.032 acres. Debtors’ home is 5,090 square feet, with 2,702 square feet above ground and 2,388 below ground. Debtors’ home has seven bedrooms and at least 6 of the bedrooms have walk-in closets. The master bedroom has his and her walk-in closets and a see-through fireplace. Debtors’ basement has 9 foot ceilings and the plumbing and lighting fixtures in Debtors’ home are considered high-end.
Debtors’ home is located to the south of Billings, between Billings and Laurel, off a frontage road in an area referred to as the I-90 corridor. The property surrounding Debtors’ home is a mixture of residential and commercial property. The real estate appraisers agreed that Debtors’ home is located between communities, i.e. Billings and Laurel, in a low population density area. Wendi Bruner testified that Debtors’ home is approximately 10 to 15 minutes from downtown Billings. It appears that no homes have sold in Debtors’ immediate area since approximately 2005.
Altana originally funded the construction of Debtors’ home. Debtors represented to Altana in 2007 that their construction costs would or did total $526,850.00. In June of 2008, presumably after completion of Debtors’ home, Altana sold $417,000 of Debtors’ loan to PHH Mortgage. Altana took a second position loan against Debtors’ home in the amount of $85,000. Royal Carireau (“Carireau”) testified that dividing the loan into a first and second loan was intended to help Debtors because Debtors avoided the expense and hassle of dealing with a jumbo loan.

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Buckner - Modify Stay - December, 2010
Case No. 10-61402-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held November 2, 2010, in Butte on E. Earl Norwood’s (“Norwood”) Objection and Motion to Vacate October 5, 2010, Order filed October 14, 2010, at docket entry no. 26, and depending on the outcome of the foregoing matter, on Norwood’s Motion to Modify Stay filed September 15, 2010, at docket entry no. 12. James J. Screnar of Bozeman, Montana appeared at the hearing on behalf of Debtor and Jon E. Doak of Billings, Montana appeared on behalf of Norwood. The Court heard argument from counsel, but no witness testimony or exhibits were offered.
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Canton - Objective to Claim - August 26, 2010

Case No. 08-61683-11

Pending in this Chapter 11 case is the Debtor’s Objection (Docket No. 193), to Proof of Claim No. 39 filed by the Estate of Earl Pruyn, Jack Meyer Personal Representative (hereinafter “Pruyn”), based on money loaned. Debtor objects that Pruyn is not a creditor, and instead owes the Debtor $35,695 based on a “trade-out arrangement.” After notice a hearing on Debtor’s Objection was held at Great Falls on July 9, 2010. The parties were represented by counsel. Testimony was heard and exhibits were admitted. At the conclusion of the hearing the Court took Debtor’s Objection to Claim 39 under advisement. After review of Debtor’s Objection, Pruyn’s response (Dkt. 201), and the record, this matter is ready for decision. For the reasons set forth below the Debtor’s Objection is overruled and Claim 39 is allowed.

This Court has jurisdiction of this Chapter 7 case under 28 U.S.C. § 1334(a). Debtor’s Objection to allowance of Pruyn’s claim against the estate is a core proceeding under 28 U.S.C. § 157(b)(2)(B). This Memorandum includes the Court’s findings of fact and conclusions of law.

The Debtor James Canton (“Canton”) appeared and testified at the hearing on Debtor’s Objection, represented by attorney Gregory W. Duncan (“Duncan”) of Helena, Montana. Pruyn was represented by attorney Harold V. Dye of Missoula, Montana. Attorney Kevin S. Jones (“Jones”), who signed Proof of Claim 39 on behalf of Pruyn, and who has represented both Pruyn and Canton prior to this bankruptcy case, testified. Michael Harbine (“Harbine”), Canton’s employee Penny Howe (“Howe”), and another Pruyn attorney Liana J. Messer (“Messer”), also testified. The Court admitted Pruyn’s Exhibits (“Ex.”) 1, 2, 3, 4, 5, 6, and 7 into evidence. At the beginning of the hearing the Court sustained Pruyn’s objection to admission of the Debtor’s proposed exhibits and excluded them on the grounds the Debtor failed to file and exchange his exhibits three days prior to the hearing as required by Mont. LBR 5074-1(b) .
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Cavanaugh Broadwater vs. Cavanaugh - Summary Judgment  - June 26, 2010

Case No. 08-61002-11

  This Adversary Proceeding was commenced when Defendant Steve Cavanaugh Limited Partnership removed a pending civil case from the Montana First Judicial District Court, Broadwater County, as Case No. DV-08-41, entitled Broadwater County vs. Donald Neu and Janette Neu et al., to this Court after Debtor filed a Chapter 11 bankruptcy petition on July 25, 2008. The pending action was filed against the following Defendants: Donald and Janette Neu, American General Financial Services, Inc., Skipper’s Limited Partnership, Bank of the Rockies, N.A., William Hileman, Timothy Fallaw, James A. Mclean, Rolling Glen Ranch Corporation, Steve Cavanaugh Limited Partnership, and Steven L. and Susan L. Cavanaugh.
  On September 7, 2009, the Bank of the Rockies sought to amend its counterclaim against the Plaintiff Broadwater County, a political subdivision of the State of Montana (“County”), arguing that on May 23, 2008, the County filed its Complaint in this matter seeking a declaration that Bank of the Rockies’ security interests are subject to the respective Subdivision Improvements Agreements of Rolling Glen Ranch, and that no title to the property would transfer unless Bank of the Rockies paid the County $10,500 per lot. On July 24, 2008, Bank of the Rockies filed its Answer and Counterclaim. Bank of the Rockies then sought to amend its Counterclaim to include an unconstitutional taking claim under the U.S. Constitution. Bank of the Rockies’ aforementioned motion was granted on September 23, 2009, and Bank of the Rockies filed its Amended Counterclaim on September 24, 2009, doc. 19. The County filed a reply to the Amended Counterclaim on September 26, 2008, which reply included a demand for jury trial.

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Clark - Chapter 13 Confirmation - October 25, 2010

Case No. 10-60414-13

In this Chapter 13 bankruptcy, after due notice, the Court held a hearing on September 13, 2010, in Butte on confirmation of the Debtors’ Third Amended Chapter 13 Plan, filed August 24, 2010, to which objections were filed by the Chapter 13 Trustee and Helena Community Credit Union. Debtors were represented at the hearing by Benjamin C. Tiller of Helena, Montana. The Chapter 13 Trustee, Robert G. Drummond of Great Falls, Montana, also appeared at the hearing.� Helena Community Credit Union was represented at the hearing by John Grant of Helena, Montana. Debtors Phillip J. Clark (“Phillip”) and Michelle L. Clark (“Michelle”) testified. Jeri Matthews and Liz Eich also testified. Debtors’ Exhibit 1A and Helena Community Credit Union’s Exhibits 2 through 9 were admitted into evidence without objection. At the conclusion of the parties’ cases-in-chief the Court took the matter under advisement. After review of the record and applicable law, this matter is ready for decision. For the reasons set forth below the objections are overruled, in part, and sustained, in part, confirmation of Debtors’ Third Amended Chapter 13 Plan will be denied by separate order, and Debtors will be granted a final chance to amend their Chapter 13 plan.

This Court has jurisdiction in this Chapter 13 case under 28 U.S.C. § 1334(a).� Confirmation of Debtors’ Plan is a core proceeding under 28 U.S.C. § 157(b)(2)(L). This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law pursuant to F.R.B.P. 7052.
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Daniels-Daniels vs. American Educational - Adversary - September 15, 2010

Case No. 10-60842-13

The Debtor/Plaintiff, Nancy Marie Daniels (“Nancy”) filed a voluntary Chapter 13 bankruptcy petition on April 16, 2010. Nancy filed a Complaint on May 10, 2010, seeking to discharge a student loan debt under 11 U.S.C. § 523(a)(8). Defendants The Educational Institute, Inc. and National Collegiate Trust filed an Answer to Nancy’s Complaint on June 10, 2010.� Following a scheduling conference held July 7, 2010, the Court entered a scheduling order setting trial for September 13, 2010. The Court’s scheduling order also directed that the parties file their exhibit and witness lists on or before September 3, 2010. The scheduling order also provided:

Plaintiffs’ counsel shall be responsible for preparing the pretrial order and arranging the meeting of counsel attendant thereto. Nancy’s counsel timely filed Nancy’s exhibit and witness lists on September 3, 2010, but filed said lists in Debtor’s main bankruptcy case rather than this Adversary Proceeding. Nancy’s counsel did not file a pretrial order as directed by the Court.1 The Defendants tardily filed their exhibit and witness lists on September 9, 2010, but counsel explained that after hearing nothing from Nancy’s counsel, he assumed, as did this Court, that Nancy was not going forward with this matter. Nancy was represented at the trial by Daniel R. Sweeney of Butte, Montana. Defendants� The Educational Institute, Inc. and National Collegiate Trust were represented at the trial by Christian T. Nygren of Missoula, Montana. Nancy testified and Nancy’s Exhibit 1 and the Defendants’ Exhibits A through F were admitted into evidence without objection. At the conclusion of the trial, the Court took the matter under advisement. The matter is ready for decision. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.
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Dement - Chapter 13 Confirmation - January 14, 2010

Case No. 09-61582-13

Pending in this Chapter 13 case is confirmation of the Debtors’ Plan and the Chapter 13 Trustee’s objection thereto contending that the Plan fails to satisfy disposable income requirement of § 1325(b)(1)(B) by continuing payments of a secured debt for a trailer. The hearing on confirmation was held at Missoula on October 8, 2009. Debtors were represented by attorney Edward A. Murphy of Missoula, and Debtor Richard D. Dement (“Richard”) testified. The Standing Chapter 13 Trustee Robert G. Drummond appeared. Exhibit (“Ex.”) 1 was admitted into evidence. At the conclusion of the hearing the Court granted the parties time to file simultaneous briefs, after which the matter would be deemed submitted and taken under advisement. Briefing concluded on November 5, 2009. The parties’ briefs have been filed and reviewed by the Court together with the record and applicable law. The matter is ready for decision. For the reasons set forth below the Trustee’s objection is overruled and the Debtors’ Plan will be confirmed.

This Court has jurisdiction in this case under 28 U.S.C. § 1334(a). Confirmation of Debtor’s Plan is a core proceeding under 28 U.S.C. § 157(b)(2)(L). This Memorandum includes the Court’s findings of fact and conclusions of law.

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Diamond vs. Northcutt - Summary Judgment - January 15, 2010

Case No. 09-60946-7

Pending in this Adversary Proceeding is the Plaintiffs’ Joint Motion for Summary Judgment as to Count 1 of the Amended Adversarial Complaint filed November 30, 2009, at docket entry no. 43. The Plaintiffs’ Motion for Summary Judgment was accompanied by the affidavits of Neil Diamond and Albert Diamond, a Memorandum and a document that is titled “Separate Statement of Uncontroverted Facts.” In response thereto, the Debtor/Defendant filed a Response to the Plaintiffs’ Motion for Summary Judgment, along with the Debtor/Defendant’s Affidavit in Opposition to Plaintiffs’ Motion for Summary Judgment, a Statement of Genuine Issues and the Debtor/Defendant’s Brief in Opposition to the Plaintiffs’ Motion for Summary Judgment.
Mont. LBR. 7056-1(1) requires that “[a] separate, short, and concise ‘Statement of Uncontroverted Facts’ must accompany every motion for summary judgment. Failure to submit this statement constitutes grounds for denial of the motion. The statement shall set forth separately each fact, in serial, not narrative form, and shall specify the specific portion of the record where the fact can be found (e.g., affidavit, deposition, etc.).” The Plaintiffs’ Separate Statement of Uncontroverted Facts does not set forth any facts on which this Court can grant summary judgment.

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Didier - Motion to Vacate Property - March 5, 2010

Case No. 07-60849-7
Pending in this Chapter 7 case is the Trustee’s Motion (Docket No. 333) for Order requiring the Debtor to vacate real property located on Flathead Lake at 1263 Lakeshore Drive , Rollins, Montana. The Debtor Christin D. Didier objected (Dkt. 341) on the grounds 1263 Lakeshore Drive is owned a the C.D. Didier Family Trust (hereinafter the “Trust”) and is not property of the estate. A hearing on the Trustee’s Motion was held at Missoula on February 16, 2010. The Trustee Darcy M. Crum appeared in support of the Motion. Debtor Christin D. Didier (“Debtor” or Didier”) appeared by videoconference and testified, represented by attorney James
A. Patten of Billings, Montana. Exhibits (“Ex.”) A and B were admitted into evidence. At the close of the hearing the Court took the Motion under advisement. After review of the record and applicable law, the Debtor’s objection is overruled and the Trustee’s Motion for Order requiring Debtor to Vacate is granted for the reasons set forth below.
This Court has jurisdiction in this case under 28 U.S.C. § 1334(a). The Trustee’s Motion the legal description is stated further in the Motion as: “Crescent Beach Lot 15 – Section 29, Township 25 N, Range 20 W.” for Order requiring Christin to vacate the property is a core proceeding under 28 U.S.C. § 157(b)(2)(E) involving orders to turn over property of the estate. The Trustee’s Motion to require the Debtor to vacate and turn over property of the estate is procedurally proper under F.R.B.P. Rule 9014(a) and Rule 7001(1) . This Memorandum includes the Court’s Findings of Fact and Conclusions of Law.

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Edra Blixseth - Motion to Sell - February 23, 2010

Case No. 09-60452-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held January 29, 2010, in
Missoula on the Chapter 7 Trustee’s:


MOTION OF CHAPTER 7 TRUSTEE PURSUANT TO 11 U.S.C. §§ 105(a), 363(b), 363(f) AND 365, AND FED. R. BANKR. P. 2002(a)(2), 6004 AND 6006 FOR ORDER (A) APPROVING THE SALE OF REAL PROPERTY KNOWN AS “FAMILY COMPOUND AT YELLOWSTONE MOUNTAIN CLUB” FREE AND CLEAR OF LIENS, CLAIMS, INTERESTS AND ENCUMBRANCES, (B) APPROVING BIDDING PROCEDURES AND AUTHORIZING THE TRUSTEE TO SOLICIT HIGHER AND BETTER OFFERS PURSUANT TO PROPOSED NOTICE OF SALE, (C) GRANTING RELIEF FROM STAY ON THE FAMILY COMPOUND AT YELLOWSTONE MOUNTAIN CLUB AND ON PROPERTY LOCATED AT 18 KING EDWARD COURT, RANCHO MIRAGE, CALIFORNIA AND (D) GRANTING RELATED RELIEF
 

filed December 18, 2009, at docket entry no. 576, together with the objections thereto filed by:
Marc S. Kirschner, as Trustee (the “Yellowstone Trustee”) of the Yellowstone Club Liquidating
Trust (“YCLT”); Western Capital Partners, LLC; and Greg LeMond, David and Sacia Morris and
Sacia Enterprises, Inc. (the “LeMond Group”). The Chapter 7 Trustee, Richard J. Samson, who
appeared personally at the hearing and testified, was represented by David B. Cotner of Missoula, Montana. In addition, YCLT was represented at the hearing by Charles W. Hingle of Billings, Montana, Western Capital Partners was represented by Robert W. Hatch, II of Denver, Colorado, the LeMond Group was represented at the hearing by K. John Shaffer of Los Angeles, California and James J. Screnar of Bozeman, Montana, and CIP Yellowstone Lending, LLC (“CIP”) was represented by Paul D. Moore and Barry D. Green of Boston, Massachusetts and Benjamin P. Hursh of Missoula, Montana. The Trustee’s Exhibits 2 through 13, CIP’s Exhibit 1 and the LeMond Group’s Exhibits 14 and 16 were admitted into evidence.
 

In a footnote, YCLT states that it “will ask the Court to take notice of the testimony on value and entitlements for the Family Compound during the hearing on the motion for relief from the automatic stay held October 2, 8 and 9, 2009, in the BLX Case.” Given the inter-relatedness of this case to the other Blixseth entity bankruptcies and associated proceedings, this Court deems it appropriate to take judicial notice of the proceedings in the BLX bankruptcy and the Yellowstone Club entities’ bankruptcies.
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Edra Blixseth - Reimpose Automatic Stay - August 16, 2010

Case No. 09-60452-7

In this Chapter 7 bankruptcy, after due notice, a hearing was held August 10, 2010, in Butte on the Chapter 7 Trustee’s Motion to Enforce the Automatic Stay Against Western Capital Partners filed August 4, 2010, at docket entry no. 769, together with Western Capital Partners, LLC’s objection thereto filed August 10, 2010. The Chapter 7 Trustee, Richard J. Samson of Missoula, Montana, appeared at the hearing personally and with counsel, Bradley R. Duncan and Hugh R. McCullough of Seattle, Washington. Western Capital Partners, LLC (“WCP”) was represented at the hearing by Robert W. Hatch, II of Denver, Colorado. The Court heard argument of counsel and WCP’s Exhibit 1 through 9 and the Trustee’s Exhibits 1 through 5 were admitted into evidence without objection. No witness testimony was offered by either party.
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Edra Blixseth - Western Capital vs. Blixseth - Summary Judgment - September 27, 2010
Case No. 09-60452-7

In this Adversary Proceeding, Plaintiff Western Capital Partners, LLC (“WCP”) filed a Motion for Summary Judgment to Determine the Non-Dischargeability of a Debt on August 20, 2010. See docket entry no. 26. WCP’s Motion for Summary Judgment was accompanied by a Brief in support thereof, a Statement of Uncontroverted Facts and various affidavits and supporting exhibits. The following are WCP’s purported uncontroverted facts:
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Garsjo-Little Horn Bank vs. Garsjo - Summary Judgment - September 30, 2010
Case No. 09-62271-7

In this Adversary Proceeding, Defendant Donna Mae Garsjo (“Donna”), through counsel, filed a Motion for Summary Judgment on August 25, 2010. See docket entry no. 28. Donna’s Motion for Summary Judgment is accompanied by a Memorandum in support thereof, an Affidavit of Donna, a Declaration of attorney James A. Patten, and a Statement of Uncontroverted Facts. The following are Donna’s purported uncontroverted facts and the Plaintiff’s statement of genuine issues:
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Harrod-Exemption - January 22, 2010
Case No. 09-61752-7

In this Chapter 7 case an objection to Debtor’s claim of homestead exemption was filed on October 29, 2009, by James P. Spurgetis (“Spurgetis”), Trustee for the Kamielle Kim Smith Trust (“Smith Trust”). The Debtor filed a response, and after due notice a hearing on Smith Trust’s objection was held at Missoula on December 11, 2009. The Debtor was represented by attorney Thomas Trigg (“Trigg”). The Smith Trust was represented by attorney Jean Adele Carter (“Carter”). Attorney Mark McLaverty (“McLaverty”) testified. Exhibits (“Ex.”) 1, 2, 3, A and B were admitted into evidence, but the Court admitted Ex. 1 only for the limited purpose of showing that it was filed in state court . In addition parties’ counsel agreed to admit facts numbered 1–through –11 and 13 of the Debtor’s response brief (Docket No. 13), at pages 2 through 4. At the conclusion of the hearing the Court took the objection under advisement.

The Court ruled at the hearing that the statements in Ex. 1 are hearsay under FED. R. EVID. 801(c), and not admissible under FED. R. EVID. 802.

After review of the record and applicable law, for the reasons set forth below the Court overrules the Smith Trust’s objection for failure to satisfy its burden of proof under F.R.B.P. 4003(c) of proving that the Debtor’s objection was not properly claimed.

This Court has exclusive jurisdiction in this Chapter 7 case under 28 U.S.C. § 1334(a). Smith Trust’s objection to Debtor’s claim of exemption is a core proceeding under 28 U.S.C. § 157(b)(2)(B). This Memorandum includes the Court’s findings of fact and conclusions of law.

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Hayes-Richardson vs. Tolzman - Contract - May 19, 2010
Case No. 07-60316-7

In this Adversary Proceeding, after due notice, a hearing on the Plaintiffs’ Motion for Summary Judgment was held May 11, 2010, in Butte. Charles E. Petaja of Helena, Montana appeared at the hearing on behalf of the Plaintiffs Tom and Sue Hanson, the Chapter 7 Trustee, Ross Richardson of Butte, Montana, appeared on his own behalf, and the Defendant, Kerry Tolzmann (“Tolzmann”), appeared pro se. Plaintiff Tom Hanson testified. No exhibits were offered into evidence.

The Plaintiffs filed a Motion for Summary Judgment on April 7, 2010, seeking judgment in their favor. The Plaintiffs’ Motion was accompanied by a brief in support thereof and a Statement of Uncontroverted Facts. Tolzmann did not file any response to the pending Motion for Summary Judgment, but did file a response to the Plaintiffs’ Complaint on April 12, 2010. In summary, Tolzmann’s response is that he would like to continue working toward finishing the pending sales transaction.

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Holt - Modified Plan - August 20, 2010
Case No. 09-62439-13

In this Chapter 13 bankruptcy, after due notice, a hearing was held August 10, 2010, in Butte on: (1) Debtor’s Motion for Modification of Plan filed July 5, 2010, together with approval of Debtor’s Seventh Amended Chapter 13 plan filed August 9, 2010; (2) the Motion to Modify Stay filed on behalf of Vince Stone and Junior H. Troyer on July 7, 2010; (3) the Motion to Modify Stay filed on behalf of Jacqueline Sohm on July 8, 2010; and (4) the Motion to Modify Stay filed on behalf of Donald and Janette Neu on July 8, 2010. Gregory W. Duncan of Helena, Montana appeared at the hearing on behalf of the Debtor, Daniel R. Sweeney of Butte, Montana appeared at the hearing on behalf of creditors Jacqueline Sohm and Donald and Janette Neu, and Harold V. Dye of Missoula, Montana appeared at the hearing on behalf of creditors Vince Stone and Junior H. Troyer. The Chapter 13 Trustee, Robert G. Drummond of Great Falls, Montana, also appeared at the hearing. Vince Stone and Junior H. Troyer’s Exhibit 1, Jacqueline Sohm and Donald and Janette Neu’s Exhibits 1 and 2, and Debtor’s Exhibits 1, 2, 3, 6, 9, 10, 14 and 18 were admitted into evidence without objection. Daniel E. Riley, Debtor and Diana Morris testified. At the conclusion of the hearing, the Court denied confirmation of Debtor’s Seventh Amended Chapter 13 Plan and took the Motions to Modify Stay under advisement.

This Court has jurisdiction in this bankruptcy case under 28 U.S.C. § 1334(a). The pending motions are core proceedings under 28 U.S.C. § 157(b)(2). This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

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Jarvar vs. Title Cash - Sanctions - March 30, 2010
Case No. 04-62762-7

In this adversary proceeding Plaintiff filed a motion to compel discovery and production of documents (Docket No. 77), and an amended motion for sanctions (Dkt. 88) against Defendants for their failure to disclose and produce documents in response to requests for production and under an informal agreement made at a deposition, and Defendants’ failure to supplement. A hearing on the motions to compel and for sanctions was held at Missoula on March 19, 2010. The parties were represented at the hearing by counsel. Plaintiff was represented by attorneys Eric S. Hummel (“Hummel”) of Eric Hummel, PLLC, and James H.

Cossitt of James H. Cossitt, PC, of Kalispell, Montana. Defendants were represented by attorney Thane Johnson (“Johnson”) of Johnson, Berg, McEvoy & Bostock, PLLP, of Kalispell, Montana. Plaintiff’s attorney James H. Cossitt (“Cossitt”) testified, and Plaintiff’s Exhibits (“Ex.”) 1– through – 16 were admitted without objection. After the conclusion of the parties’ cases-in-chief the Court heard argument of counsel.

Based on Johnson’s admission to the Court at the hearing that approximately ninety (90) pages of attachments to an “Asset Purchase Agreement”, Ex. 1 , were not produced by the Defendants in response to requests for production (“RFP”), or pursuant to an informal agreement entered into at the end of the deposition of Defendant Roy Hutcheson (“Hutcheson”) the Court granted the motion to compel at the hearing and ordered Defendants to produce any document which has not produced in response to RFPs. With respect to the Defendant’s failure to produce the exhibits referred to in Ex. 1 Johnson stated: “I can’t defend that and won’t try.” Based on the record and Johnson’s admission, Plaintiff’s motion for sanctions will be granted for the reasons set forth below.

The parties agree that this Court has jurisdiction of this removed adversary proceeding under 28 U.S.C. § 1334(b) and 28 U.S.C. § 1367, and that this is a core proceeding under 28 U.S.C. § 157(b)(2). This memorandum contains the Court’s findings of fact and conclusions of law.

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Jarvar vs. Title Cash - Summary Judgment - April 29, 2010
Case No. 04-62762-7

In this adversary proceeding Plaintiff’s Second Motion for Summary Judgment (Docket No. 74) is pending against Defendants Title Cash of Montana, Inc. (“Title Cash”), EZ Title Pawn, Inc. (“EZ Title”), Hutcheson Enterprises, Inc. (“Hutcheson, Inc.”), and Roy Hutcheson (“Hutcheson”) on the issue of liability only on Counts V, VII, VIII, IX, and X of Plaintiff’s 3rd Amended and Substituted Complaint (“3rd Complaint”) (Dkt. 64). Title Cash filed a response in opposition and a cross motion for partial summary judgment on Count V (Dkt. 98 ). Plaintiff filed a reply brief (Dkt. 105), and a hearing on these matters was held at Missoula on March 19, 2010. The parties appeared represented by counsel. Attorneys James H. Cossitt (“Cossitt”) of James H. Cossitt, PC, Kalispell, Montana, and Eric S. Hummel (“Hummel”) of Kalispell appeared representing the Plaintiff, and Thane Johnson (“Johnson”) of Johnson, Berg, McEvoy & Bostock, PLLP Kalispell appeared representing Defendants. After hearing argument of counsel the Court took both motions for summary judgment under advisement at the conclusion of the hearing. The motions for summary judgment and briefs have been reviewed by the Court, together with the record and applicable law. These matters are ready for decision. For the reasons set forth below, Plaintiff’s second motion for summary judgment and Title Cash’s cross motion for summary judgment both will be denied.

The parties agree that this Court has jurisdiction of this removed adversary proceeding under 28 U.S.C. § 1334(b) and 28 U.S.C. § 1367, and that this is a core proceeding under 28 U.S.C. § 157(b)(2). This memorandum contains the Court’s findings of fact and conclusions of law under FED. R. BANKR. P. 7052 (applying FED. R. CIV. P. 52) in adversary proceedings.

Plaintiff’s second motion seeks summary judgment for liability on several counts of the condition of Defendant’s response brief and cross motion, Docket No. 98, warrants comment. The bold subject headings at pages 2, 5, 6, 8, 10, and 14, all are missing letters which render the headings almost indecipherable. Whether that is a result of a computer glitch or some other reason, it is not this Court’s role to fill in the blanks. Rule 9011(b) requires an “inquiry reasonable under the circumstances” before presenting a paper to the Court, which at a minimum requires quality control such as review or proofreading before filing a paper. Johnson’s filing of Dkt. 98 in such a condition falls short of the standard of practice expected in this Court.

2Plaintiff’s first motion for summary judgment (Dkt. 18) was granted in part and denied in part by Memorandum of Decision (Dkt. 55) and Order (Dkt. 56) entered on December 18, 2009. Trial is scheduled to commence on May 17, 2010.

Plaintiff’s 3rd Complaint. Count V seeks judgment against Title Cash for unfair or deceptive acts or practices in violation of the Montana Unfair Trade Practices and Consumer Protection Act of 1973 (hereinafter the “CPA”), MONTANA CODE ANNOTATED (“MCA”) § 33-14-101, et seq.), with the amount of damages to be determined at trial. Count VII seeks judgment against Hutcheson and Hutcheson, Inc., based on the theory of alter ego. Count VIII seeks judgment against EZ Title and Hutcheson based on theories of successor liability . Count IX seeks judgment against Title Cash, EZ Title, and Hutcheson, Inc., based on the equitable theory of piercing the corporate veil. Count X seeks judgment and liability against all Defendants avoiding the corporate transfers from Title Cash to EZ Title as fraudulent transfer under MCA § 31-2-333(2). Title Cash opposes Plaintiff’s second motion contending that genuine issues of material fact exist with respect to each Count, and moves for summary judgment barring Plaintiff’s CPA claim of Count V under the theory of collateral estoppel.

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Jonas-Jonas vs. Jonas - Attorneys Fees Sanction - September 16, 2010
Case No. 10-60248-7

Pending in this adversary proceeding is the amount of attorney fees to be awarded against the Plaintiff Edwin Ritter Jonas (“Edwin”) as sanctions for Edwin’s failure to comply with the deadline set by this Court’s Scheduling Order (Docket No. 9) for making initial disclosures. A hearing on the amount of attorney fees was held at Missoula on September 9, 2010. Edwin was represented by attorney Edwin A. Murphy (“Murphy”) of Missoula in opposition to the amount of attorney fees requested by Defendant Linda B. Jonas (“Linda”). Linda was represented by attorney Robert Erickson. No testimony or exhibits were admitted. Argument of counsel was heard, after which the Court took the matter under advisement. After review of the record, Edwin’s objection is overruled and Linda is awarded $1,124.50 in attorney fees as sanctions for Edwin’s failure to make initial disclosures by the deadline set by the Scheduling Order. The Court finds that the $1,124.50 amount of attorney fees requested by Linda is reasonable.

This Court has jurisdiction of this adversary proceeding under 28 U.S.C. § 1334(b).

The Court held an initial scheduling conference in this adversary proceeding on May 12, 2010, after which the Court entered its Scheduling Order, Dkt. 9. After hearing statements from the parties regarding scheduling, the Scheduling Order set several deadlines, the first of which stated: “All initial disclosures shall be made by June 8, 2010.” The Scheduling Order stated plainly: “The parties shall comply with the schedule herein specified or be subject to sanctions, contempt, and expenses as provided by the Federal Rules of Bankruptcy Procedure, as may be requested by either party.”

Murphy admits that Edwin failed to make the initial disclosures by June 8, 2010. Linda filed her second motion to dismiss on June 10, 2010 (Dkt. 13) based upon Edwin’s failure to make initial disclosures and requesting dismissal and sanctions. Edwin’s response (Dkt. 19) states that the initial disclosures were made on June 28, 2010. The Court, after a hearing, denied Linda’s motion to dismiss but granted her request for sanctions, and directed her to file an affidavit of attorney fees and costs (Dkt. 29).

Linda filed her affidavit on August 16, 2010 (Dkt. 36), with a billing statement itemizing attorney services provided by Linda’s attorneys Quentin M. Rhoades (“Rhoades”) and Erickson from June 10, 2010, for drafting the motion to dismiss, through August 5, 2010, for reviewing Edwin’s objection and preparing for the hearing. The affidavit of attorney fees includes nothing after August 5, 2010, although Linda’s attorney participated in the September 9, 2010, hearing. The amount of attorney fees requested by Linda is $1,124.50, and she requests nothing for costs.

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Jonas-Jonas vs. Jonas - Motion to Dismiss - August 12, 2010
Case No. 10-60248-7

Defendant Linda B. Jonas’ (“Linda”) Motion (Docket No. 5) to Dismiss Counts III, IV and V of the complaint filed by the Plaintiff/Debtor Edwin Ritter Jonas, III (“Edwin”), her former spouse, based on FED. R. CIV. P. 12(b)(1) (applicable in this adversary proceeding under F.R.B.P. 7012(b)) and the Rooker-Feldman doctrine is pending in this adversary proceeding. Plaintiff filed an objection and a hearing was held on the Motion at Missoula on June 10, 2010. TheRooker-Feldman doctrine takes its name from two Supreme Court cases: Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). parties appeared represented by counsel. Linda was represented by Quentin Rhoades (“Rhoades”) of Missoula. Edwin was represented by attorney Edwin A. Murphy (“Murphy”) of Missoula. The parties agreed that the Motion involved a legal question, and no testimony or exhibits were admitted. The Court granted the parties additional time to file briefs, which have been reviewed by the Court together with the pleadings and applicable law. This matter is ready for decision. For the reasons set forth below Linda’s Motion will be granted.
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Keith - Contempt - December 21, 2010
Case No. 10-61722-7

In this Chapter 7 bankruptcy, the United States Trustee filed on October 29, 2010, a Motion for Order Requiring Debtor to Show Cause Why He Should Not Be Held in Contempt. On November 16, 2010, the Court granted the United States Trustee’s Motion by entering an Order to Show Cause, wherein Debtor was ordered to appear before this Court in Billings on December 20, 2010, and show cause why he should not be held in civil contempt and subject to sanctions for violating this Court’s Order. Debtor did not appear at the December 20, 2010, hearing as directed. Neal G. Jensen of Great Falls, Montana appeared at the hearing on behalf of the United States Trustee. The Court heard statements from Neal Jensen, but no testimony was offered. This Memorandum of Decision sets forth the Court’s finding of fact and conclusions of law.
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Keith - Convert - September 29, 2010
Case No. 10-61722-11

In this Chapter 11 bankruptcy, after due notice, a hearing was held September 20, 2010, in Billings on First Interstate Bank Billings Height Branch (“FIB”) Motion to Convert to Chapter 7 filed August 9, 2010, and the United States Trustee’s (“UST”) Motion to Dismiss or Convert to Chapter 7 filed August 10, 2010. Wells Fargo Bank, N.A., Western Security Bank and Rocky Mountain Bank joined in the UST’s Motion to Convert. Allen Beck of Lewistown, Montana appeared at the hearing on behalf of Debtor; James A. Patten of Billings, Montana appeared at the hearing on behalf of FIB; Neal G. Jensen of Great Falls, Montana appeared on behalf of the UST; Doug James of Billings, Montana appeared on behalf of Wells Fargo Bank, N.A.; Malcolm H. Goodrich of Billings, Montana appeared on behalf of Western Security Bank; Richard J. Samson of Missoula, Montana appeared on behalf of Rocky Mountain Bank; and Keith A. Jones of Helena, Montana appeared on behalf of the Montana Department of Revenue. Debtor Phillip Dennis Keith testified. The UST’s Exhibits 1, 2 and 3 were admitted into evidence without objection.
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Lakeside Venture-Bryden vs. Lakeside Ventures - Removal - June 22,2010
Case No. 08-61562-7

In this adversary proceeding the Plaintiff Lori L. Bryden (“Lori”) seeks to recover damages from the Defendant/Debtor Lakeside Ventures, LLC (“LLC”), her former employer, for wrongful discharge under MONT. CODE ANN. (“MCA”) § 39-2-904(1)(b). LLC denies that its discharge of Lori was wrongful, or that she suffered damages as a result. After trial of this cause, and after review of the parties’ briefs, the record and applicable law, this matter is ready for decision. For the reasons set forth below, Judgment shall be entered for the Defendant dismissing Lori’s complaint. The Court concludes that Plaintiff failed to satisfy her burden of proof that her discharge from LLC’s employment was not for good cause under MCA § 39-2-903(5).

The parties agreed in the approved Final Pretrial Order (Docket No. 14) that this Court has jurisdiction of this adversary proceeding under 28 U.S.C. §1334(b), and agree that this is a core proceeding under 28 U.S.C. § 157(b)(2). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law under F.R.B.P. 7052 (applying Fed. R. Civ. P. 52 in adversary proceedings).

Trial of this adversary proceeding was held at Missoula on April 14, 2010. Lori appeared and testified, represented by attorney Scott G. Hilderman of Kalispell, Montana. Defendant LLC was represented by attorney Jon R. Binney (“Binney”) of Missoula. Plaintiff’s Exhibits (“Ex.”) 1, 2, 3, 4, 5, and Defendant’s Ex. A, B, C, D, E, and F, were admitted into evidence by stipulation. At the conclusion of the parties’ cases-in-chief the Court granted counsel time to file briefs, which have been filed and reviewed by the Court together with the record and applicable law.

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Lasely - Sanction Automatic Stay - March 2010
Case No. 08-60713-13

In this Chapter 13 case, after due notice, a hearing was held December 14, 2009, in Billings on Debtors’ Motion for Sanctions for Violation of the Automatic Stay filed November 4, 2009, at docket entry no. 60, which Motion is opposed by the County of Los Angeles, Child Support Service Department (“CSSD”). Phillip R. Oliver of Billings, Montana appeared at the hearing on behalf of Debtors and Sheila C. Lebowitz of Commerce, California appeared on behalf of CSSD. The Debtor Keith Allen Lasley (“Keith”) appeared and testified. Debtors’ Exhibits A, B, D and E and CSSD’s Exhibits 2 and 4 were admitted into evidence without objection at the hearing.
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Luce vs. PHH Mortgage - Amend Judgment - March 25,2010
Case No. 09-60332-7

In this Adversary Proceeding, after due notice, a hearing was held March 9, 2010, in Billings on the Plaintiffs’ Motion to Alter or Amend Judgment filed February 2, 2010, together with the opposition thereto by counsel for Defendant PHH Mortgage Services. James A. Patten of Billings, Montana, appeared at the hearing on behalf of the Plaintiffs and Mark E. Noennig of Billings, Montana, appeared at the hearing on behalf of PHH Mortgage Services. The Court heard argument from counsel, but no witness testimony or exhibits were offered.

On January 26, 2010, this Court entered a Memorandum of Decision and Judgment in favor of PHH Mortgage Services and against the Debtor/Plaintiffs, concluding that PHH Mortgage Services had a valid lien against Plaintiffs’ real property at Lot 1 Moser Dome Acres Subdivision, Yellowstone County, Montana, and the record should be reformed to reflect that SEG Federal Credit Union’s Deed of Reconveyance is invalid and void. Based upon the foregoing, the Court dismissed the Debtor/Plaintiffs’ Amended Complaint filed October 28, 2009, with prejudice.

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Luce vs. PHH Mortgage - Judgment - January 26, 2010
Case No. 09-60332-7

In this Adversary Proceeding, after due notice, trial in this matter was scheduled to commence on December 14, 2009. However, in lieu of trial, the Debtor/Plaintiffs, Western Security Bank (WSB) and PHH Mortgage Services (PHH) entered into and filed on December 14, 2009, a Stipulated Statement of Facts in Lieu of Testimony. The agreed facts, as set forth in the Stipulation, are as follows:
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Martushev-Crum vs. Greek Orthodox Church - Summary Judgment

- December 17, 2010
Case No. 09-60507-7

In this adversary proceeding brought by the Plaintiff/Trustee Darcy M. Crum to avoid and recover an alleged fraudulent transfer of real property by the Debtors to the Defendant Greek Orthodox Church of Corvallis (hereinafter “the Church”) under 11 U.S.C. § 548(a), and to cancel the property which is the subject of this adversary proceeding is described on Plaintiff’s Amended Complaint as “Lot 13, Block 8, Corvallis, Ravalli County, Montana, according to the recorded plat thereof, together with portions of alley vacated in Commissioner’s Journal Book 3, page 173, and that part of street vacated in Commissioner’s Book 3, page 139, which portions attach by operation of law.” Defendants’ amended answer at paragraph 3 admits the property description, and the property is hereinafter otherwise referred to as the “subject property.” the quit claim deed to the Church and quiet title and determine that Debtors retained the interest in the subject property and that it is now vested property of the estate, the Plaintiff has filed a Motion for Summary Judgment (Docket No. 15) (“Motion”), including a Statement of Uncontroverted Facts. Defendants answered admitting that the transfer took place, but deny liability and object to Plaintiff’s Motion. Both sides have filed briefs, which have been reviewed by the Court together with the record and applicable law. This matter is ready for decision. For the reasons set forth below the Court will grant Plaintiff’s Motion and enter Judgment for the Plaintiff avoiding the transfer under § 548(a) and quieting title to the subject property in the name of the Plaintiff as Trustee of the estate in Case No. 09-60507-7.

The parties admit that this Court has jurisdiction of this adversary proceeding under 28 U.S.C. § 1334 and 157. This proceeding is a core proceeding to determine, avoid, or recover a fraudulent transfer under 28 U.S.C. § 157(b)(2)(H) and § 548(a)(1)(B). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law with respect to the Plaintiff’s Motion, as provided under F.R.B.P. 7052.

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Martushev-Crum vs. Martushev - Summary Judgment - December 17, 2010
Case No. 09-60507-7

In this adversary proceeding brought by the Plaintiff/Trustee Darcy M. Crum to recover alleged fraudulent transfers by the Debtors to the Defendant under 11 U.S.C. § 548(a), and to avoid a preferential transfer to Defendant under 11 U.S.C. § 547, the Plaintiff has filed a Motion for Summary Judgment (Docket No. 10), including a Statement of Uncontroverted Facts. Defendant Elizaveta Martushev (“Elizaveta”) admits the transfers in her answer, but denies liability under §§ 547 and 548, and objects to Plaintiff’s Motion. Both sides have filed briefs, which have been reviewed by the Court together with the record and applicable law. This matter is ready for decision. For the reasons set forth below the Court denies Plaintiff’s Motion, and finds that Plaintiff failed to satisfy her burden to show an absence of genuine issue of material fact under F.R.B.P. 7056 (applying Fed. R. Civ. P. 56 in adversary proceedings). The parties admit that this Court has jurisdiction of this adversary proceeding under 28 U.S.C. § 1334 and 157. This is a core proceeding to determine, avoid, or recover a fraudulent transfer under 28 U.S.C. § 157(b)(2)(H) and § 548(a)(1)(B), and to determine, avoid and recover a preference under § 157(b)(2)(F) and § 547(b). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law with respect to the Plaintiff’s Motion, as provided under F.R.B.P. 7052.
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Martushev-Crum vs. Tomka Construction - Judgment - December 16, 2010
Case No. 09-60507-7

In this adversary proceeding brought by the Plaintiff/Trustee Darcy M. Crum to recover an alleged fraudulent transfer by the Debtors to the Defendant under 11 U.S.C. § 548(a), the Plaintiff has filed a Motion for Summary Judgment (Docket No. 10), including a Statement of Uncontroverted Facts. Defendant Tomka & Sons Construction, Inc. (“Tomka”) admits that it received a $90,000 transfer from the Debtors, but denies liability under § 548 and objects to Plaintiff’s Motion. Both sides have filed briefs, which have been reviewed by the Court together with the record and applicable law. This matter is ready for decision. For the reasons set forth below the Court denies Plaintiff’s Motion and finds that Plaintiff failed to satisfy her burden to show an absence of genuine issue of material fact under F.R.B.P. 7056 (applying Fed. R. Civ. P. 56 in adversary proceedings).

The parties admit that this Court has jurisdiction of this adversary proceeding under 28

U.S.C. § 1334 and 157. This is a core proceeding to determine, avoid, or recover a fraudulent transfer under 28 U.S.C. § 157(b)(2)(H) and § 548(a)(1)(B). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law with respect to the Plaintiff’s Motion, as provided under F.R.B.P. 7052.

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Martushev-Julius vs. Martushev - Judgment - April 9, 2010
Case No. 09-60507-7

In this adversary proceeding, which is set for trial commencing on April 20, 2010, Plaintiff Babs Julius filed: (1) a motion partial summary judgment (Docket No. 13) seeking a determination that Defendants are liable for “actual fraud, construction fraud, or fraudulent and deceptive acts” involving the sale by Defendants of a home to Plaintiff and subsequent remodeling contract; and (2) a motion in limine. Defendants have filed objections to both motions, and a statement of genuine issues of fact. Pursuant to Mont. LBR 7056-1(d), no oral argument hearing has been scheduled. Due to the shortness of time before trial, the Court deems these matters submitted and ready for decision. For the reasons set forth below Plaintiff’s motion for summary judgment will be denied, and Plaintiff’s motion in limine will be granted in part and denied in part.

This Court has jurisdiction of this adversary proceeding under 28 U.S.C. § 1334. The parties agree that this Court has jurisdiction of this matter and that this is a core proceeding under 28 U.S.C. § 157(b)(2)(I). This Memorandum includes the Court’s findings of fact and conclusions of law under FED. R. BANKR. P. 7052 (applying FED. R. CIV. P. 52) in adversary proceedings.

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Mastel - Confirmation of Liquidation - January 15, 2010
Case No. 09-60784-13

Pending in this Chapter 13 case is confirmation of Debtors’ amended Chapter 13 Plan. Objections were filed by the Chapter 13 Trustee Robert G. Drummond and by secured creditor GES, Inc. (“GES”). GES, which is co-owner of Debtors’ ranch in Missoula County, Montana, also filed a motion to dismiss or convert the case to Chapter 7. After a hearing on confirmation held on November 12, 2009, the Court denied confirmation but allowed Debtors to file an amended Plan, which was filed. Objections to the amended Plan were filed by the Trustee and GES, and a hearing on confirmation and on GES’s motion was held at Missoula on December 11, 2009. No additional testimony was heard. Debtors were represented by Daniel S. Morgan (“Morgan”) of Missoula. The Trustee and GES appeared. Attorney Brian J. Smith of Missoula representing GES. After hearing argument of counsel the Court took both matters under advisement. After review of the record and applicable law, for the reasons set forth below the objections to confirmation will be overruled and GES’s motion to dismiss or convert denied by separate Order, and Debtors’ amended Plan will be confirmed. Both Debtors testified at the November 12, 2009, hearing, which the Court deems part of the record for purposes of determining whether to confirm their amended Plan.

This Court has jurisdiction in this case under 28 U.S.C. § 1334(a). Confirmation of Debtors’ Plan is a core proceeding under 28 U.S.C. § 157(b)(2)(L), and GES’s motion to dismiss or convert is a core proceeding. This Memorandum includes the Court’s findings of fact and conclusions of law.

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McMillan - Objective to Claim  - October 15, 2010
Case No. 09-62417-13

In this Chapter 13 case the Trustee filed on July 26, 2010, a Notice of Late Filed Claim (Docket No. 26) objecting to Proof of Claim No. 13 filed by the Social Security Administration (“SSA”). SSA filed a response and motion to file its Proof of Claim out of time. After due notice, a hearing on the Trustee’s objection to late filed claim was held at Missoula on October 14, 2010. The Chapter 13 Standing Trustee Robert G. Drummond of Great Falls, Montana, appeared at the hearing. SSA was represented at the hearing by Assistant United States Attorney George F. Darragh, Jr. (“Darragh”). No testimony or exhibits were admitted. The parties agreed that there are no disputed facts. The Court noted that its decision likely is governed by its decision In re Quesnell, 18 Mont. B.R. 80, 83 (Bankr. D. Mont. 1999), based upon which SSA’s late filed claim should be disallowed, but the claim not subject to any discharge entered in this case because of the Debtor’s failure to serve SSA or the appropriate counsel at the proper address required for service. The Court withheld its decision in order to review Quesnell, and having reviewed that decision the Court now sustains the Trustee’s objection and disallows SSA’s Claim 13 as a late filed claim, but directs that neither any confirmed plan nor any discharge entered in this case shall apply to SSA’s debt for overpayment owed by the Debtor.
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Moonlight Basin-Lehman vs. Moonlight - Dismiss - August 26, 2010
Case No. 09-62327-11

In this Adversary Proceeding, two matters were submitted to the Court without hearing: Woodlands Commercial Bank’s Motion to Dismiss Third Party Complaint filed June 4, 2010, at docket entry no. 56; and Lehman Commercial Paper Inc., Lehman Brothers Holdings, Inc., Francis Gilhool, David O’Reilly, and Kurt Kohlmeyer’s Motion to Dismiss the Counterclaims and Third Party Complaint of Moonlight Debtors filed June 4, 2010, at docket entry no. 59. Also, after due notice, a hearing was held August 10, 2010, in Butte on the Motion for Protective Order and Stay of Discovery by Lenders and Third Party Defendants filed by Lehman Commercial Paper Inc., Lehman Brothers Holdings, Inc., Francis Gilhool, David O’Reilly, and Kurt Kohlmeyer on July 16, 2010, at docket entry no. 103, and on Woodlands Commercial Bank’s Motion to Stay Certain Discovery Activities and to Vacate the Trial Date filed July 16, 2010, at docket entry no. 107.1
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Moonlight Basin-Lehman vs. Moonlight - Summary Judgment - June 25, 2010
Case No. 09-62327-11

Plaintiffs’ Motion for Summary Judgment on the Releases filed February 22, 2010, at docket entry no. 16, is pending in this Adversary Proceeding. Plaintiffs’ Motion is accompanied by a Memorandum in support thereof and, in accordance with Mont. LBR 7056-1, Plaintiffs filed a separate Statement of Undisputed Facts at docket entry no. 17. Plaintiffs also filed two Affidavits of Thomas Buffa and an Affidavit of Wayne S. Cook, Jr. In response thereto, the various Moonlight Debtor/Defendants, together with Moonlight Basin Ranch, Inc. filed Opposition to the Plaintiffs’ Motion on March 26, 2010, along with a separate Statement of Genuine Issues which is found at docket entry no. 40. The Moonlight Debtors and Moonlight Basin Ranch, Inc.’s Statement of Genuine Issues was accompanied by Affidavits of Russ McElyea (Chief Operating Officer for Moonlight) and Gerrit Cormany (Chief Financial Officer for Moonlight) along with various materials prepared by Lehman Brothers. The remaining defendants consisting of Lee Poole, Six Shooter, LLC, JVLP, LLC, Tim William Anderson, Aardvark, LLC, Frontier Stone, LLC and Moonlight Basin Holdings, LLC, filed a Brief in Opposition to Motion for Summary Judgment on March 26, 2010, and also filed a separate The Moonlight Debtors consist of Moonlight Basin Ranch, LP, Moonlight Basin, LLC (Case No. 09-62332); Lone Mountain Food & Beverage, LLC (Case No. 09-62328); Moonlight Lodge, LLC (Case No. 09-62329); Moonlight Golf, LLC (Case No. 09-62330); Moonlight Spa, LLC (Case No.09-62331); Mountain Top Construction, LLC (Case No. 09-62370); Treeline Springs, LLC (Case No. 09-62368); and Moonlight Basin Mezz, LLC (Case No. 09-62334). Moonlight Basin Ranch, Inc. is not a debtor before this Court, but it appears that it has the same counsel as the Moonlight Debtors. Statement of Genuine Issues which is found at docket entry no. 42. The various parties in this Adversary Proceeding are identified by the Court as follows: The Moonlight Debtors: Moonlight Basin Ranch, LP, an Ohio limited partnership (“MBRanch”); Moonlight Basin Mezz, LLC, a Delaware limited liability company (“Mezz”) which holds 99% of the partnership interests in MBRanch and 100% of the issued and outstanding shares of stock in Moonlight Basin Ranch, Inc.; Moonlight Basin, LLC (“Basin”) ; Lone Mountain Food & Beverage, LLC (“Lone Mountain”); Moonlight Lodge, LLC (“Lodge”); Moonlight Golf, LLC (“Golf”); Moonlight Spa, LLC (“Spa”); Mountain Top Construction Company, LLC (“Mountain Top”); and Treeline Springs, LLC (“Treeline”).

The Lehman Brothers parties: Lehman Commercial Paper, Inc. (“LCPI”); Lehman Brothers Holdings, Inc. (“LBHI”); Lehman Brothers Commercial Bank (“LBCB”); Lehman Brothers, Inc. (“LBI”); The non-Debtor Defendants: Moonlight Basin Ranch, Inc., an Ohio corporation and owner of 1% general partnership interest in MBRanch; Moonlight Basin Holdings, LLC, a Delaware limited liability company, which is a member of, and holds 100% of the membership interests in Mezz; Lee Poole (“Poole”); Tim William Anderson (“Anderson”); Six Shooter, LLC (“Six Shooter”); Aardvark, LLC (“Aardvark”); and Frontier Stone, LLC (“Frontier”). The following is a chronological summary of the events in this case: July 22, First Amendment

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Moonlight Basin-Lehman vs. Moonlight - Summary - September 17, 2010
Case No. 09-62327-11

Pending in this Adversary Proceeding is a Motion for Summary Judgment filed July 21, 2010, by Defendants Lee Poole, Six Shooter LLC, JVLP LLC, Tim William Anderson, Aardvark LLC, Frontier Stone LLC, and Moonlight Basin Holdings LLC (collectively the “Poole Defendants”). See docket entry no. 118. The Poole Defendants’ Motion for Summary Judgment was accompanied by a Brief in support thereof, a Statement of Undisputed Facts and an Affidavit of Lee Poole (“Poole”). The Poole Defendants argue that the following are undisputed facts:
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Prigge - Chapter 13 Confirmation - March 4, 2010

Case No. 09-61545-13
Pending in this Chapter 13 case is confirmation of the Debtor’s amended Plan and objections thereto filed by Chapter 13 Trustee and by Gregg and Malinda Pike (“Pikes”) on the ground the Plan is not filed in good faith as required by 11 U.S.C. § 1325(a)(3). The hearing on confirmation was held at Great Falls on December 18, 2010. Debtor Todd W. Prigge (“Prigge” or “Debtor”) filed an amended Plan and amended Schedules I and J on December 17, 2009 (Docket No. 62) and appeared and testified at the hearing represented by attorney Gary S. Deschenes of Great Falls. The Standing Chapter 13 Trustee Robert G. Drummond appeared in opposition. Pikes were represented by attorney John P. Paul of Great Falls. Debtor’s Exhibits (“Ex.”) A and B, and the Trustee’s Ex. 1, 2, 3, 4, and 7, were admitted into evidence without objection. At the conclusion of the hearing the Court granted the parties time to file stipulated facts relating to the Trustee’s objection no. 6 , and briefs, after which the matter would be

1Objection no. 6 in Docket No. 58, pages 3 to 10, is based on the disposable income requirement of 11 U.S.C. § 1325(b), and alleges that Official Form 22C does not follow § 1325(b)(3) as it incorporates 11 U.S.C. § 707(b)(2), because Debtor claims excessive expenses for payment of debts.

deemed submitted and taken under advisement. The Court extended briefing by agreement of the parties through the end of January 2010. The stipulated facts and briefs have been filed and reviewed by the Court together with the record and applicable law. The matter is ready for decision. For the reasons set forth below the Trustee’s “disposable income” objection to confirmation is sustained in part and confirmation of Debtor’s amended Plan will be denied because of Prigge’s voluntary contributions to his 401(k) plan, but the Debtor will be granted a final opportunity to file a confirmable Plan.

This Court has jurisdiction in this Chapter 13 case under 28 U.S.C. § 1334(a). Confirmation of Debtor’s Plan is a core proceeding under 28 U.S.C. § 157(b)(2)(L). This Memorandum includes the Court’s findings of fact and conclusions of law.

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Ryan - Relief from Stay - August 6, 2010
Case No. 10-60925-13

After due notice hearing was held at Missoula on August 5, 2010, on the motion to modify stay filed by Glacier Bank on June 22, 2010 (Docket No. 20). The Chapter 13 Trustee filed a consent. Debtors filed an objection and were represented at the hearing by attorney Jon R. Binney (“Binney”), and Debtor William Timothy Ryan testified. Debtors also called real estate broker William T. Leininger (“Leininger”) to testify. Glacier Bank was represented at the hearing by attorney James C. Bartlett (“Bartlett”), and Glacier Bank officer Robert Taylor (“Taylor”) testified. Exhibits (“Ex.”) 1, 2, 3, 4, 5 and 6 were admitted into evidence. At the conclusion of the hearing the Court granted Glacier Bank’s motion at the hearing, finding that cause exists under 11 U.S.C. § 362(d)(1) to modify the stay.

This Court has exclusive jurisdiction in this Chapter 13 case under 28 U.S.C. § 1334(a). Glacier Bank’s motion to modify stay is a core proceeding under 28 U.S.C. § 157(b)(2)(G). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law for its decision granting Glacier Bank’s motion to modify the stay.

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Stokes - Turnover - August 27, 2010
Case No. 09-60265-7

Trustee’s second Motion for Turnover of Assets of the Estate (Docket No. 240) (“Motion”), filed March 26, 2010, which seeks turnover of items of personal property listed in Dkt. 90 is pending in this Chapter 7 case. The Debtor filed an objection (Dkt. 244) on the grounds that claim preclusion is not applicable and that the Debtor has amended his Schedule C to claim exemptions in the items under a different, correct statute. The Court conducted a hearing on the Trustee’s Motion at Missoula on July 15, 2010. The Trustee filed a supplemental brief (Dkt. 313) and was represented at the hearing by James H. Cossitt (“Cossitt”) of Kalispell, Montana. Debtor appeared represented by attorney Edward A. Murphy (“Murphy”) of Missoula. No testimony or exhibits were admitted. The Court heard argument from counsel, and at the conclusion of the hearing took the Motion under advisement. After review of the record and applicable law, for the reasons set forth below the Trustee’s second Motion for Turnover will be denied.

Those items include: three MAK 90 guns valued at $1,800; one 300 Mag Kimber gun valued at $1,400; fishing gear valued at $37,960; guitars valued at $8,820; and an FCC license for radio station KGEZ valued at $1,500,000. The FCC radio license has been recovered and sold previously.

This Court has jurisdiction of this Chapter 7 case under 28 U.S.C. § 1334(a). The Trustee’s Motion for Turnover and allowance of exemptions from property of the estate are core proceedings under 28 U.S.C. § 157(b)(2)(B) & (E). This Memorandum includes the Court’s findings of fact and conclusions of law.

At issue is whether the Debtor was precluded under the doctrine of claim preclusion from amending his Schedule C to claim exemptions in the subject property after earlier exemptions were disallowed. Under controlling Ninth Circuit authority, Arnold v. Gill (In re Arnold), 252 B.R. 778, 784 (9 Cir. 2000), (citing Martinson v. Michael, 17 Mont. B.R. 192, 198, 163 F.3d 526, 529 (9 Cir. 1998)), this Court has no discretion to disallow amended exemptions unless the amendment has been made in bad faith or prejudices third parties. The Trustee failed to show bad faith or prejudice to third parties resulting from Debtor’s amendment to his Schedule C.

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Tamke - Chapter 12 confirmation - January 14, 2010
Case No. 09-60833-12

In this Chapter 12 bankruptcy, after due notice, a hearing was held December 10, 2009, in Butte on confirmation of Debtor’s Second Amended Chapter 12 Plan filed December 8, 2009.The Chapter 12 Trustee, James D. Volk of Great Falls, Montana, appeared at the hearing as did� James A. Patten of Billings, Montana on behalf of the Debtor, Ross P. Richardson of Butte, Montana on behalf of Lena Tamcke, John Grant of Helena, Montana on behalf of Peoples Bank of Deer Lodge (the “Bank”), and Timothy C. Fox of Helena on behalf of Diversified Financial Service, LLC. William Bandy, Jim Lane, Debtor, Lena Tamcke (“Lena”), Scott Heaffner and Mark Anderson testified. Debtor’s Exhibits A, B and C, Lena’s Exhibit A-1, and the Bank’s Exhibits A through J were admitted into evidence.

This Court has jurisdiction of this Chapter 12 bankruptcy case under 28 U.S.C. § 1334(a). This is a core proceeding involving confirmation of a plan under 28 U.S.C. § 157(b)(2)(L). The parties’ memoranda have been filed and reviewed by the Court together with the record and applicable law. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law.

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Voss - Objection to Claim - March 24, 2010
Case No. 09-62224-13

 In this Chapter 13 bankruptcy, after due notice a hearing was held February 22, 2010, in Billings on Debtor’s Objection to Proof of Claim No. 4 filed by Dennis Huber. Joanne M. Briese of Billings, Montana appeared at the hearing on behalf of the Debtor, and Kevin J. Chapman of Williston, North Dakota appeared at the hearing on behalf of Dennis Huber. Jonathan Voss (“Voss”) and Dennis Huber (“Huber”) testified. Exhibits C1 and C2 were admitted into evidence without objection. The parties have filed post-hearing briefs and the matter is ready for decision.
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Welsh - Confirmation of Chapter 13 Plan - November 16, 2010
Case No. 10-61285-13

Confirmation of Debtors’ Plan (Docket No. 2) is pending in this Chapter 13 case. The Chapter 13 Trustee Robert G. Drummond objects to confirmation on the grounds that the Plan is not proposed in good faith as required under 11 U.S.C. § 1325(a)(3) because Debtors proposed to continue making payments on several secured claims while making “minuscule” payment to general unsecured creditors . The hearing on confirmation was held at Missoula on September 9,Paragraph 2 of the Trustee’s objection (Dkt. 15), based on the disposable income requirement of 11 U.S.C. § 1325(b)(2), was withdrawn by the Trustee at Dkt. 30. In his post-hearing brief, however (Dkt. 31), at pages 5 to 8 the Trustee revives his disposable income objection.

2010. Debtors were represented by attorney Edward A. Murphy (“Murphy”) of Missoula, and Sharon Welsh (“Sharon”) testified. The Trustee appeared in opposition to confirmation. No exhibits were admitted. At the conclusion of the parties’ cases-in-chief the Court granted the parties time to file additional briefs, which have been filed and reviewed by the Court along with the record and applicable law. This matter is ready for decision. For the reasons set forth below the Court overrules the Trustee’s objection and orders Debtors’ Chapter 13 Plan confirmed.

This Court has jurisdiction in this Chapter 13 case under 28 U.S.C. § 1334(a). Confirmation of Debtors’ Plan is a core proceeding under 28 U.S.C. § 157(b)(2)(L). This Memorandum includes the Court’s findings of fact and conclusions of law as provided at F.R.B.P. 7052 (applying Fed. R. Civ. P. 52).

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Yellowstone Club - Approval of Agreement March 24, 2010
Case No. 08-61570-11 Substantively Consolidated with:
Case No. 08-61571-11, Case No. 08-61573-11 and Jointly Administered with: Case No. 08-61572-11

In the above-referenced Chapter 11 bankruptcy cases, after due notice, a hearing was held February 11, 2010, in Butte on Marc S. Kirschner, as Trustee of the Yellowstone Club Liquidating Trust’s (“YCLT”), Motion for Approval of Post-Effective Date Agreement with Certain B Equity Interest Holders for Modification of Payment Priority and Other Relief filed on December 11, 2009, at dkt. 1366, together with the objection thereto filed by Timothy L. Blixseth. John G. Turner, III of Amarillo, Texas, and Charles W. Hingle of Billings, Montana, appeared at the hearing on behalf of the Trustee and YCLT; Joel E. Guthals of Billings, Montana, appeared at the hearing on behalf of Timothy L. Blixseth; and Ronald A. Bender of Missoula, Montana, appeared at the hearing on behalf of the 7 Non-Settling Class B Members. The Trustee, Marc S. Kirschner, testified and Exhibits 1, 2, 3, 4 and 5 were admitted into evidence without objection.

The 7 Non-Settling Class B Members are Michael Snow, Greg C. Branch, A.C. and Linda Markkula, Spano Yellowstone Holdings Limited Partnership, Robert P. and Katharine M. Watson, Bankers Financial Corporation and Mountain Vista Properties BG. See Exhibit A to the Term Sheet attached to YCLT’s Motion at dkt. 1366. The 7 Non-Settling Class B Members (“Class B Members”) are Class B Shareholders who hold a 7.1428% equity interest in Yellowstone Mountain Club, LLC and Yellowstone Development Company, LLC. The Class B Members commenced Adversary Proceeding No. 09-00018 against BLX Group, Inc., f/k/a Blixseth Group, Inc. (“BLX”), Timothy L. Blixseth (“Blixseth”) and Edra D. Blixseth on March 3, 2009. YCLT, in its pending motion, seeks approval of the terms of an agreement with the Class B Members which would allow the Class B Members a general unsecured claim with the same priority as the Prepetition Lenders in the amount of $22 million in exchange for the assignment by the Class B Members of their claims or the proceeds thereof against the majoritRoss P. Richardson, Chapter 7 Trustee of Yellowstone Club World, LLC, filed an objection to YCLT’s motion on December 22, 2009, but later withdrew such objection on February 15, 2010. owners of the Debtor entities, past and present, including their pending claims in Adversary

Proceeding No. 09-00018, to YCLT. YCLT argues that the agreement between it and the Class B Members is contemplated by Debtors’ confirmed Third Amended Joint Plan of Reorganization and the Trust Agreement that governs the work of YCLT.

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Yellowstone Club - Objection to Claim
Case No. 08-61570-11

In this Chapter 11 bankruptcy, after due notice, a hearing was held September 20, 2010, in Billings on the Yellowstone Club Liquidating Trust’s Motion for Summary Judgment of Robert Sumpter Proof of Claim No. 741 filed August 12, 2010, at docket entry no. 1932, together with Robert Sumpter’s objection thereto. Robert L. Sterup of Billings, Montana appeared at the hearing on behalf of the Yellowstone Club Liquidating Trust (“YCLT”) and Stephen C. Mackey of Billings, Montana appeared on behalf of Robert Sumpter (“Sumpter”).
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Yellowstone Club - Objection to Stipulation - June 15, 2010
Case No. 08-61570-11

In this Chapter 11 bankruptcy, Marc S. Kirschner, as Trustee of the Yellowstone Club Liquidating Trust, filed on September 14, 2009, an Objection to Proof of Claim No. 531 filed by Greg LeMond. Thereafter, Marc S. Kirschner (“Trustee”), as Trustee of the Yellowstone Club Liquidating Trust and Greg LeMond (“LeMond”), through their respective counsel, entered into a “Stipulation and Joint Motion for Allowance of Claim, [and] Partial Compromise of Adversary Proceeding No. 09-00031" which was filed on January 26, 2010, at docket entry no. 1504. Overlook Partners, LLC (“Overlook”) and Timothy L. Blixseth (“Blixseth”) filed a Response and Objection to approval of the Stipulation between the Trustee and LeMond on February 10, 2010. After due notice, a hearing on approval of the Stipulation between the Trustee and LeMond, together with Overlook and Blixseth’s objection thereto, was held June 7, 2010, in Butte. Shane

P. Coleman of Billings, Montana appeared at the hearing on behalf of the Trustee, Trent M. Gardner of Bozeman, Montana appeared on behalf of LeMond and Joel E. Guthals of Billings, Montana appeared on behalf of Overlook and Blixseth. Marc Kirschner and Michael Doyle testified. The Trustee’s Exhibits 1 through 4 and Blixseth’s Exhibits A through O were admitted into evidence without objection.

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Yellowstone Club-Blixseth vs. Kirshner - Decision - August 6, 2010
Case No. 08-61570-11

Rule 9017, F.R.B.P., provides that the Federal Rules of Evidence apply in cases under the Bankruptcy Code. It is a commonly-accepted practice to take “judicial notice” of a court's records. See 3 J. Weinstein & M. Berger, WEINSTEIN'S EVIDENCE ¶¶ 201 [03] at 201-35 to -40 (1992). The practice is particularly useful in bankruptcy litigation in which individual adversary proceedings and contested matters, each of which is procedurally distinct and has its own record, all occur within, and are affected by, the context of the parent bankruptcy case. See id. For the reasons discussed above, this Court takes judicial notice of the proceedings in the related bankruptcy cases and adversary proceedings discussed in this Memorandum of Decision for the purpose of providing additional background regarding the nature of the dispute and the relationship of the parties.

Timothy L. Blixseth (“Blixseth”), the plaintiff-in-intervention and the now captioned Plaintiff in this matter, and his former spouse, Edra Blixseth (“Edra”), were the founders of Yellowstone Mountain Club, LLC (“YMC”), Yellowstone Development, LLC (“YD”), Big Sky Ridge, LLC, and Yellowstone Club Construction Company, LLC. The four aforementioned limited liability companies comprise the Yellowstone Club and will be referred to generally as the Debtors or the Yellowstone Club entities. Through the Yellowstone Club entities, Blixseth and Edra began development in the late 1990's of the Yellowstone Club on land that Blixseth acquired through various transactions. The parties maintain that the Yellowstone Club is the world’s only private ski and golf community. The Yellowstone Club is a members only master-planned unit development, situated on 13,500 acres of private land in Madison County near Big Sky, Montana. At its conclusion, the Blixseths contemplated that the Yellowstone Club would consist of roughly 864 dwelling units situated in seven planned residential areas or neighborhoods.

Members join the Yellowstone Club because of its amenities, including the Warren Miller Lodge, 17 ski runs, equestrian center, Tom Weiskopf 18-hole golf course, kids’ facilities and other various amenities such as food and retail shops. The Blixseths anticipated that the Yellowstone Club would eventually have in the neighborhood of 900 members. As of the Debtors’ petition date, the Yellowstone Club had roughly 340 members. To get the Yellowstone Club off the ground, Blixseth sold equity interests in the Yellowstone Club to various persons who were referred to as Pioneer and Frontier Members. The 25 Pioneer and 15 Frontier Members were permitted to purchase their lots at the Yellowstone Club and their Yellowstone Club memberships at substantially reduced prices.

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Yellowstone Club-Blixseth vs. Kirshner - Motion to Amend - January 22, 2010
Case No. 08-61570-11

Under advisement in this Adversary Proceeding is the Motion for Leave to File an Amended Answer and Counterclaim filed by Marc S. Kirschner, as Trustee of the Yellowstone Club Liquidating Trust (“YCLT”), on November 25, 2009, at docket entry no. 353. After due notice, a hearing on the YCLT’s Motion was held January 5, 2010, in Butte. Shane P. Coleman of Billings, Montana and Steven L. Hoard of Amarillo, Texas appeared on behalf of YCLT and Joel E. Guthals of Billings, Montana appeared on behalf of the Plaintiff-Intervenor, Timothy L. Blixseth (“Blixseth”). The Court heard comments from counsel, but no witness testimony or exhibits were offered into evidence.

YCLT seeks in its Motion to amend the answer and counterclaim previously filed in this case by the Debtor and the unsecured creditors’ committee. YCLT asserts that the primary changes contained in the proposed amended answer are (a) the affirmative pleading in paragraph 31 that the Debtors’ causes of action against Blixseth are not barred by the applicable statute of limitations under the discovery rule, the doctrine of fraudulent concealment, and/or the doctrine of adverse domination and (b) the affirmative pleading in paragraph 38 that the Debtors’ release of Blixseth executed in conjunction with the Marital Settlement Agreement is unenforceable as a matter of law because it was given without consideration to the Debtors and constitutes a fraudulent conveyance. The primary changes in the proposed Amended Counterclaim are the addition of causes of action for violations of MONT. CODE ANN. (“MCA”) § 35-8-604(1), conversion, unjust enrichment, and punitive damages (Sections VI, X, XI, and XII, respectively). Otherwise, the changes in YCLT’s proposed Amended Answer and Counterclaim are non-substantive. No new facts are alleged, other than with respect to incontrovertible procedural facts that have been changed to reflect the current posture of the case.

YCLT contends that its motion to amend is governed by F.R.Civ.P. 15(a), which provides that a “party may amend the party’s pleading only by leave of court or by written consent of the adverse party and leave shall be freely given when justice so requires.” Blixseth counters that once a court has issued an order pursuant to F.R.Civ.P 16(b), if a party seeks to amend an answer the matter is governed by Rule 16 and not by Rule 15.

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Yellowstone Club-Blixseth vs. Kirshner - Reconsider - September 7, 2010
Case No. 08-61570-11
In this Adversary Proceeding, the now-captioned Defendant, Marc S. Kirschner, Trustee of the Yellowstone Club Liquidating Trust (“YCLT”), filed on August 27, 2010, and in response to a Memorandum of Decision and Judgment entered by this Court on August 16, 2010, a Motion for Reconsideration and to Alter or Amend the Order of Judgment of August 16, 2010, Pursuant to Federal Rules of Bankruptcy Procedure 9023 and 7052. The matter is scheduled for hearing on September 20, 2010. For the reasons discussed herein, the Court grants YCLT’s Motion in part, denies said Motion in part, and vacates the September 20, 2010, hearing.

In the pending Motion, YCLT seeks reconsideration and clarification of the Court’s Memorandum of Decision (Docket No. 575) and Judgment (the “Judgment”) (Docket No. 576) or to alter or amend the judgment: (1) to affix damages in an amount certain in this case; (2) to confirm that the Court’s Memorandum of Decision was not intended to modify the Third Amended Joint Plan of Reorganization (“Plan”) (Docket No. 995) or the “waterfall” of payment priorities set forth in Section 7.17 thereof; (3) to address the applicability of the in pari delicto and unclean hands defenses; and (4) to address whether the doctrine of apportionment has been or should be applied here.

Rule 59, Fed.R.Civ.P., incorporated into the Federal Rules of Bankruptcy Procedure by Rule 9023, provides in pertinent part: “A new trial may be granted to all or any of the parties and on all or part of the issues . . . (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States. On a motion for a new trial in an action tried without a jury, the court may open the judgement if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” Under Rule 59(e), “[a]ny motion to alter or amend a judgment must be filed not later than 10 days after entry of the judgment.” Rule 59(e) includes motions for reconsideration.

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Yellowstone Club-Blixseth vs. Kirshner - Summary Judgment - February 17, 2010
Case No. 08-61570-11

In this adversary proceeding the Plaintiff/Intervenor/Counterclaimant Defendant Timothy Blixseth (hereinafter “Blixseth”) has moved for summary judgment with a supporting brief and a s tatement of Undisputed Facts (Docket No. 486) seeking dismissal of all claims against him brought by the Defendant/Counterclaimant Marc S. Kirschner, as Trustee of the Yellowstone Club Liquidating Trust (the “Trust”). The Trust filed a response in opposition and “Statement of Genuine Issues” (Dkt. 499). Blixseth filed a reply (Dkt. 521). A hearing on Blixseth’s Motion was held at Missoula on February 16, 2010. Blixseth was represented at the hearing by Brent Bastian of Boise, Idaho. The Trust was represented by Steven L. Hoard of Amarillo, Texas. The Court heard argument. After review of the Motion, briefs, attachments, the record and applicable law, this matter is ready for decision. The Court concludes that Blixseth has failed to satisfy his burden under FED. R. BANKR. P. 7056 (applying FED. R. CIV. P. 56 in adversary proceedings) of showing that no genuine issue of material fact exists and that Blixseth is entitled to summary judgment as a matter of law with respect to any of the Trust’s claims. Blixseth’s Motion for Summary Judgment is denied.

This Court has jurisdiction in this adversary proceeding under 28 U.S.C. § 1334(b). The Trust’s claims against Blixseth are proceedings brought pursuant to the terms of the confirmed Chapter 11 Plan in the above-captioned Chapter 11 case.

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Yellowstone Club-Kirshner - Desert Ranch - Dismiss - August 31, 2010
Case No. 08-61570-11

In this Adversary Proceeding, after due notice, a hearing was held April 6, 2010, in Butte on the Defendants’ Motion to Dismiss the Complaint filed March 2, 2010, at docket entry no. 11, wherein the Defendants seek dismissal of this Adversary Proceeding for lack of subject matter jurisdiction (FED.R.CIV.P. 12(b)(1)), for lack of personal jurisdiction as to Desert Ranch LLLP, Desert Ranch Management, LLC and George Mack (FED.R.CIV.P. 12(b)(2)), and for failure to state a claim upon which relief can be granted (Count I) (FED.R.CIV.P. 12(b)(6)). The Plaintiff, Marc S. Kirschner, as Trustee of the Yellowstone Club Liquidating Trust (“YCLT”), filed a Memorandum in Opposition to the Defendant’s Motion to Dismiss on March 16, 2010. The Defendants filed an Amended Reply in Support of Their Motion to Dismiss on March 31, 2010. After due notice, a hearing on the Defendants’ Motion to Dismiss was held April 6, 2010, in Butte. Brian A. Glasser of Charleston, West Virginia and Shane P. Coleman of Billings, Montana appeared at the hearing on behalf of YCLT, and Benjamin A. Schwartzman of Boise, Idaho appeared on behalf of the Defendants. Brent Bastian of Boise, Idaho, who has not made a formal appearance in this Adversary Proceeding, also appeared on behalf of the Defendants and Paul D. Moore of Boston, Massachusetts appeared on behalf of CrossHarbor Capital Partners, LLC and CIP Yellowstone Lending, LLC. No testimony was heard and no exhibits were offered into evidence.
FED.R.CIV.P. 12(b) is applicable to this proceeding by virtue of F.R.B.P. 7012(b).

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Yellowstone Club-Snow vs. BLX Group - Motion to Dismiss - June 14, 2010
Case No. 08-61570-11

In this Adversary Proceeding, after due notice, a hearing was held June 7, 2010, in Butte on Timothy Blixseth’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(h)(2) filed April 28, 2010, at docket entry no. 206. Brent Bastian of Boise, Idaho appeared at the hearing on behalf of Timothy Blixseth (“Blixseth”) and Brian A. Glasser of Charleston, West Virginia and Ronald A. Bender of Missoula, Montana appeared at the hearing on behalf of the Plaintiffs.

Blixseth argues that the Plaintiffs, by removing all damage claims and causes of action against Edra Blixseth and BLX Group, Inc., f/k/a Blixseth Group, Inc. (“BLX”) in their amended complaint filed March 22, 2010, “functionally” dismissed Edra Blixseth and BLX in all but name, thereby creating an obvious misjoinder problem because Edra Blixseth and BLX are necessary and indispensable parties to this action. The Plaintiffs counter that Blixseth has not sustained his burden of proof under Rule 12(b)(7), that there has been no misjoinder and that even if there was a misjoinder, dismissal is not the appropriate remedy.

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Yellowstone Club-Snow vs. BLX Group - Summary Judgment Motion to Dismiss

- August 4, 2010

Case No. 08-61570-11
Following commencement of this Adversary Proceeding on March 3, 2009, a pretrial scheduling conference was held September 25, 2009. Pursuant to a pretrial scheduling order entered that same date, trial was originally scheduled to commence on February 24, 2010. The Court subsequently deconsolidated this Adversary Proceeding from 09-00017 and 09-00014 on January 14, 2010, and rescheduled the pretrial scheduling conference. The Court then entered a second pretrial scheduling order on January 28, 2010, setting June 11, 2010, as the deadline to file all pretrial motions, with trial commencing on August 23, 2010.
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Yellowstone Club World - Approve Settlement - June 10, 2010
Case No. 09-60061-7

Pending in this Chapter 7 case is the Trustee Ross P. Richardson’s (“Trustee”) Motion, filed February 12, 2010 (Docket No. 168) for Order Approving Settlement (“Motion”) with Timothy L. Blixseth (“Blixseth”) and entities Blixseth controls. Several objections were filed, but all objections were resolved by settlement except a limited objection filed by CrossHarbor Capital Partners, LLC, and its subsidiaries (“CrossHarbor”) (Dkt. 216 & 290). Two hearings have been held on the Trustee’s Motion, including a telephonic hearing on June 2, 2010. At the June 2, 2010, hearing the Court heard argument from counsel, including John L. Amsden (“Amsden”) for the Trustee and Benjamin P. Hursh (“Hursh”) for CrossHarbor. At the conclusion of the June 2, 2010, hearing, the Court verbally overruled CrossHarbor’s objection and granted the Trustee’s Motion. This Memorandum sets forth the Court’s reasoning after consideration of the factors for approval of settlements set forth in Martin v. Kane (In re A & C Properties), 784 F.2d 1377, 1380-81 (9 Cir. 1986) cert. denied sub nom. Martin v. Robinson, 479 U.S. 854, 107 S.Ct. 189, 93 L.Ed. 2d 122 (1986).

This Court has jurisdiction of this involuntary Chapter 7 case under 28 U.S.C. § 1334(a). The Trustee’s Motion is a core proceeding under 28 U.S.C. § 157(b)(2).

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Yellowstone Club World - Dismiss
Case No. 09-60061-7

In this Adversary Proceeding, after due notice, a hearing was held June 7, 2010, in Butte on Third-Party Defendants Timothy L. Blixseth and Blixseth Group of Washington, LLC’s Motion to Dismiss for Lack of Subject Matter Jurisdiction filed April 27, 2010, at docket entry no. 104, and on Dieter Huckestein’s Motion for Leave to File Second Amended Third Party Complaint filed May 3, 2010, at docket entry no. 105. Daniel D. Manson of Butte, Montana appeared at the hearing on behalf of Timothy L. Blixseth and Blixseth Group of Washington, LLC (collectively “Blixseth”) and David A. Shaneyfelt and Joseph G. Balice of Ventura, California and Kenneth R. Dyrud of Missoula, Montana appeared at the hearing on behalf of Dieter Huckestein (“Huckestein”). The Court heard argument from counsel, but no witness testimony or exhibits were offered.

Blixseth seeks dismissal of Huckestein’s third-party claims arguing that the claims by Huckestein against Blixseth are not core proceedings and do not invoke the “related to” subject matter jurisdiction of this Court. Procedurally, Ross P. Richardson, the Trustee in Debtor’s Chapter 7 bankruptcy, filed a complaint against Blixseth and various other entity defendants on October 20, 2009. The Trustee subsequently amended his complaint on November 24, 2009, to add claims against Huckestein and Hotel Procurement Services, LLC. Blixseth filed an answer to the amended complaint on December 8, 2010, and an amended answer on December 16, 2009.

The first pleading filed by Huckestein and Hotel Procurement Services, LLC in this matter was on January 11, 2010, when said parties filed a Motion to Dismiss the Trustee’s Complaint under Fed.R.Civ.P. 12(B)(6). On that same date, and without answering the Trustee’s amended complaint, Huckestein filed a Third Party Complaint against Blixseth. Huckestein and Hotel Procurement Services, LLC never answered the Trustee’s Amended Complaint, and instead, resolved their dispute at a mediation held February 11, 2010, wherein the Trustee and Huckestein essentially walked away from their claims against each other. By agreement of the parties, Blixseth has not yet answered Huckestein’s Third Party Complaint.

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Yellowstone Club World - Objection to Claim _ March 15, 2010
Case No. 09-60061-7

In this Chapter 7 bankruptcy, the Trustee filed on November 19, 2009, an Objection to Proof of Claim No. 37 filed by Marc S. Kirschner, as the Trustee of the Yellowstone Club Liquidating Trust (“YCLT”), on November 10, 2009, wherein YCLT asserts an unsecured claim against the Debtor in the amount of $2,334,862.36. YCLT subsequently amended Proof of Claim No. 37 on December 22, 2009, to assert an unsecured claim in the amount of $2,875,227.46 against the Debtor. Briefs outlining three threshold issues with respect to the Trustee’s Objection were filed in related Adversary Proceeding 09-00066 on January 8, 2010, by the Trustee and January 12, 2010, by YCLT. This Memorandum of Decision sets forth the Court’s findings of fact and conclusions of law with respect to the three threshold issues presented by the Trustee.
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Yellowstone Club World-Richardson vs. Blixseth - Judgment - July 8, 2010
Case No. 09-60061-7

In this Adversary Proceeding, after due notice, a hearing was held July 6, 2010, in Butte on Dieter Huckestein’s (“Huckestein”) Motion to Alter or Amend Judgment Following Blixseth’s Second Motion to Dismiss Adversary Proceedings filed June 18, 2010, at docket entry no. 117, together with Timothy L. Blixseth’s (“Blixseth”) objection thereto. Huckestein was represented at the hearing by attorneys David A. Shaneyfelt and Joseph G. Balice of Ventura, California and Kenneth R. Dyrud of Missoula, Montana. Blixseth was represented by Daniel D. Manson of Butte, Montana. The Court heard argument from counsel, but no witness testimony or exhibits were offered.

This Court previously ruled in a Memorandum of Decision and separate Order entered June 9, 2010, that it did not have subject matter jurisdiction over Huckestein’s claims against Blixseth. Huckestein requests that the Court review, reconsider, and amend its June 9, 2010, ruling under Federal Rule of Civil Procedure 59(e) and Federal Rule of Bankruptcy Procedure 9023, arguing that the Court may not have had the benefit of reviewing Huckestein’s opposition to Blixseth’s second motion to dismiss. More to the point, Huckestein argues that the Court erroneously applied the law when it determined that it lacked subject matter jurisdiction.

Blixseth counters in his Opposition at docket entry no. 120 that the Court made no clear error warranting amendment or alteration of the Court’s prior ruling. The Court sees no reason to restate the facts set forth in the Memorandum of Decision entered June 9, 2010, but instead incorporates such facts by reference.

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Yellowstone Club-Yellowstone Development vs. Sumpter - Summary Judgment

- June 29, 2010

Case No. 08-61570-11
Yellowstone Development, LLC, the Plaintiff (“YD”), filed this adversary proceeding on November 29, 2009. Robert Sumpter, the Defendant (“Sumpter”), answered and counterclaimed December 30, 2009 (Docket No. 14). YD filed an answer January 18, 2010 (Docket No. 23). Sumpter filed a motion for summary judgment April 1, 2010 (Docket No. 27), together with a brief in support of his motion for summary judgment (Docket No. 28) and a statement of uncontroverted facts (Docket No. 29). This Court denied Sumpter’s motion for summary judgment for failure to comply with Mont. LBR 7056-1(a) and 9013-1(e) with leave to refile (Docket No. 31). Sumpter filed an amended motion for summary judgment April 2, 2010 (Docket No. 32) without refiling his statement of uncontroverted facts or supporting brief. YD responded and filed a cross motion for summary judgment April 16, 2010 (Docket No. 34) along with a statement of genuine issues (Docket No. 35) and a statement of uncontroverted facts (Docket No. 37). Sumpter did not file a statement of genuine issues. On April 20, 2010, the parties stipulated to vacate the scheduled trial and submitted the competing motions for summary judgment to this Court for decision based on filed pleadings and briefings (Docket No. 39). The stipulation allowed each party to submit one additional brief. Sumpter filed his reply brief and response to YD’s cross motion May 3, 2010 (Docket No. 41) while YD filed his reply and final brief to the cross motions for summary judgment May 17, 2010 (Docket No. 43).

The Court has reviewed the pleadings, the competing motions for summary judgment, the statements of uncontroverted facts and exhibits, the stipulation agreement, and the parties’ responses. The stipulation agreement requests, “Upon the completion of the filing of these Briefs, the matter will be deemed submitted and the Court may, based on its review of the briefs and the record make appropriate findings and enter corresponding conclusions of law that resolve the competing claims presented by the Parties.” In the interest of efficiency and at the parties’ request for resolution to their claims, the Court is now ready to issue a decision in this proceeding.

For the reasons set forth below, the Court finds the 2004 Porsche was property of the bankruptcy estate as of the petition date.

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