Attorney-at-Law

OBLIGING BUT BEFUDDLED

In Uncategorized on 01/26/2018 at 15:50

I do have sympathy for that Obliging Jurist, Judge David Gustafson, when confronted with Cecil K. Kyei, Docket No. 9118-12, filed 1/26/18.

CKK’s tactic seems to be to enter into a stipulated decision after he files Chapter 13. Then the stipulated decision is tossed on 11USC§362(a)(8) grounds, whereupon CKK stipulates again, and files Chapter again.

Nice.

So Judge Gustafson gets a little bewildered. “On June 8, 2015, the parties filed a stipulation (ECF 20) reflecting a settlement of the case, and on June 25, 2015, the Court duly entered decision (ECF 23). However, on November 18, 2015, respondent filed a motion to vacate (ECF 24), advising the Court that petitioner had filed a bankruptcy petition on November 17, 2015 (i.e., before June 2015, when the parties filed their stipulation and the Court entered its decision). Because the automatic stay of 11 U.S.C. § 362(a)(8) had deprived this Court of jurisdiction to enter decision in this case, we vacated the decision by order of November 23, 2015 (ECF 25).” Order, at p. 1.

Judge, I think you meant that CKK filed his petition on November 17, 2014, which is definitely before June 25, 2015, and not November 17, 2015, which isn’t. CKK’s in-again, out-again would confuse anyone.

So after that bankruptcy proceeding was tossed, IRS tried again to file a motion for entry of decision before CKK hit the Bankruptcy Court NDGA yet again.

But IRS is now farblungeit, if I may be permitted an arcane technical term.

“The motion as it appears on the Court’s electronic record is evidently missing multiple pages, because the motion consists of numbered paragraphs that skip from 2 to 17. The motion alleges that ‘respondent’s counsel has not received a reply [to an unspecified communication] from petitioner’, and that ‘Petitioner’s telephone number remains out of service.’ The motion requests ‘that the Court enter a decision in this case pursuant to the agreement of the parties and in accordance with the attached decision document’ (i.e., ECF 23). As far as we can tell, the motion relies solely on the alleged agreement of June 2015 and not on any default or lack of prosecution under Rule 123(a) or (b).” Order, at pp. 2-3.

Judge Gustafson, now thoroughly befogged, failed to notice that the agreement IRS was relying upon was the June 2015 stip which was voided per the automatic stay. In an earlier order, Judge Gustafson ordered CKK to show earlier this week to argue about entering a decision.

Of course CKK didn’t show. And if the agreement IRS relied upon was void, why should CKK waste time? Even if decision was entered by default, it was still void.

So Judge Gustafson tells IRS the ”… motion for entry of decision is denied without prejudice to the filing of a motion that is complete and that explains how an agreement entered into in June 2015 would not have been void by virtue of the automatic stay.” Order, at p. 2.

And both IRS and CKK should ”…make an appropriate filing, which shall include the party’s recommendation as to further proceedings.” Order, at p. 2.

My morning line is 8 to 5 for the Bankruptcy Court for the Northern District of GA.

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