In re Raejean S. Bonham dba World Plus
Bankruptcy No. F95-00897
Unofficial Web Site
MOTION FOR SUMMARY JUDGMENT
(§363 - Right to Proceeds)
The Trustee, LARRY D. COMPTON, by and through his attorneys, Guess & Rudd, under authority of Bankruptcy Rule 7056 and 11 U.S.C. §363, moves for summary judgment on the following issues:
(a) The percentage of proceeds from the auction sale of the 1995 Harley Davidson motorcycle, Serial No. 1HD1DPL1XSY504483 to be disbursed to Steven A. Bonham and the percentage to be disbursed to the Trustee.
(b) The percentage of proceeds from the auction sale of the 1992 Harley Davidson motorcycle, Serial No. 1HD1GAL16NY301578 to be disbursed to Steven A. Bonham and the percentage to be disbursed to the Trustee.
(c) The percentage of proceeds from the auction sale of the Melroe 811 Bobcat Loader, Serial No. 510125500 to be disbursed to Steven A. Bonham and the percentage to be disbursed to the Trustee.
(d) The percentage of proceeds from the auction sale of the Melroe 853 Bobcat Loader 8' Hydraulic Blade to be disbursed to Steven A. Bonham and the percentage to be disbursed to the Trustee.
(e) The percentage of proceeds from the auction sale of the Melroe 811 Bobcat Loader Backhoe with bucket, Serial No. 630000622, to be disbursed to Steven A. Bonham and the percentage to be disbursed to the Trustee.
(f) The percentage of net auction proceeds from the auction sale of the 1992 Bayliner 36 foot motor vessel, Model No. 3688 EY, Engine Serial No. 0D800760, and the flatbed trailer for transporting it, Alaska License No. 6894 PS, Serial No. 1P9FG4318HA103177, to be disbursed to Steven A. Bonham and the percentage to be disbursed to the Trustee.
(g) The percentage of net auction proceeds from the auction sale of the 1992 Chevrolet Corvette, Vehicle Identification No. 1GYY33P5910414460, to be disbursed to Steven A. Bonham and the percentage to be disbursed to the Trustee.
(h) The percentage of stipulated proceeds from the auction sale of the 1990 Itasca Motor Home, Vehicle Identification No. 3FCLF53G1LJA00688, to be disbursed to Steven A. Bonham and the percentage to be disbursed to the Trustee.
The Trustee intends this motion to dispose of all claims relating to items of personal property involved in this adversary proceeding.
Steven A. Bonham, by court order and by force of 11 U.S.C. §363(i), had a seventy-two hour redemption period. He failed to exercise that right of redemption.
This motion is supported by the Affidavit of Larry D. Compton and a Memorandum of even date.
DATED at Fairbanks, Alaska this _____ day of August, 1996.
GUESS & RUDD
Attorneys for Trustee Larry ComptonJames D. DeWitt
ABA No. 760523
MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
(§363 - Right to Proceeds)
The Trustee seeks summary judgment as to the right to proceeds from the auction sale of the various items of personal property that are at issue in this proceeding. The court is faced with determination of how much of the proceeds are payable to the Trustee and how much to Steve Bonham. Summary judgment is appropriate because there are no issues of fact and the Trustee is entitled to judgment as a matter of law.
I. Facts.
The court's Findings of Fact and Conclusions of Law establish many of the facts relevant to the instant motion. References to the Findings of Fact and Conclusions of Law filed July 3, 1996 are referred to as "FF&CL." Neither the debtor nor Steven A. Bonham have taken any appeal from the FF&CL or the judgment entered under those FF&CL. The time for taking such an appeal has run.
Where the FF&CL do not fully resolve the factual issues before the court, it is because the Trustee still has not been able to locate the bank account records for 1988, 1989 and 1993. As is detailed in the Affidavit of Larry D. Compton accompanying this Memorandum, the Trustee has not been able to locate the original bank account records for any of the accounts used by the debtor and Steve Bonham, despite strenuous efforts to find them. While there are prospects for copies of portions of those records, it seems most likely that the originals are either (1) still in the possession of the debtor, despite her claims to the contrary; (2) destroyed by the debtor or someone acting for her; or (3) lost or misplaced by the United States.
Only the 1993 records are critical to the instant motion. The Trustee asks the court, in the face of the debtor's inability to present the 1993 records, to assume that payments for and debt service for the assets in dispute was substantially the same in 1993 as in 1990, 1991, 1992, 1994 and 1995, the years for which records are available. During this period, by his own testimony, Steve Bonham was self-employed, doing business as S & S Services. The Trustee has found no evidence suggesting that the income of S & S Services was greater in 1993 than in the other years, or that payments for assets were made in any different way. The Trustee will demonstrate, on an asset by asset basis, how the absence of the 1993 records plays out on those assets a portion of whose purchase price or a portion of whose debt service was paid in 1993.
II. Argument.
1. 1995 Harley Davidson motorcycle, Serial No. 1HD1DPL1XSY504483.
The purchase price of the 1995 Harley Davidson was $17,408.45. FF&CL 10. The 1995 Harley was jointly owned by the debtor and Steve Bonham. FF&CL 12. $15,408.45 of the purchase price was paid by World Plus under Check No. 7262 on December 14, 1994. The balance of $2,000.00 was paid by Steve Bonham to the extent of $1,000 from unknown funds, and $1,000 by an unknown person from unknown funds.
The form of ownership shown on the certificate of title constitutes prima facie evidence of the ownership. AS 28.10.261. The Trustee has overcome the presumption of fifty-fifty ownership to the extent of $15,408.45. As to the remaining $2,000, the presumption under AS 28.10.261 still applies. The Trustee is entitled to the percentage ownership traced to World Plus monies and the percentage ownership attributed to the debtor under AS 28.10.261. In tabular form:
|
Purchase Price |
17,408.45 |
|
|
World Plus Funds |
15,408.45 |
88.51% |
|
Raejean Bonham |
1,000.00 |
5.74% |
|
Total to Trustee |
16,408.45 |
94.26% |
|
Total to Steve Bonham |
1,000.00 |
5.74% |
Whatever the net proceeds realized from the sale of the 1995 Harley, the Trustee is entitled to 94.26% of them and Steve Bonham is entitled to 5.74% of them.
2. 1992 Harley Davidson motorcycle, Serial No. 1HD1GAL16NY301578.
The purchase price of the 1992 Harley Davidson is not known. For purposes of this motion, the Trustee will assume it was equal to the purchase price for the 1995 Harley, $17,408.45. $13,250 of the purchase price is traceable to World Plus monies. FF&CL 14(f). The 1992 Harley was also jointly owned by the debtor and Steve Bonham. FF&CL 16. As to the presumed balance of the purchase price, $4,158.45, the source of the funds is not known.
The form of ownership shown on the certificate of title constitutes prima facie evidence of the ownership. AS 28.10.261. The Trustee has overcome the presumption of fifty-fifty ownership to the extent of $13,250.00. As to the remaining $4,158.45, the presumption under AS 28.10.261 still applies. The Trustee is entitled to the percentage ownership traced to World Plus monies and the percentage ownership attributed to the debtor under AS 28.10.261. In tabular form:
|
Purchase Price |
17,408.45 |
|
|
World Plus Funds |
13,250.00 |
76.11% |
|
Raejean Bonham |
2,079.23 |
11.94% |
|
Total to Trustee |
15,329.23 |
88.06% |
|
Total to Steve Bonham |
2,079.23 |
11.94% |
Whatever the net proceeds from the sale of the 1992 Harley, the Trustee is entitled to 88.06% of them and Steve Bonham is entitled to 11.94% of them.
3. Melroe 811 Bobcat Loader, Serial No. 510125500.
The Melroe 853 Bobcat ("the Bobcat") was purchased January 16, 1993 for a purchase price of $25,130.00. FF&CL 17. The Bobcat was not certificate of title goods, FF&CL 18, so AS 28.10.261 does not operate. There are mixed indicia of ownership. On the one hand, ordinarily title passes to the buyer, here World Plus, AS 45.02.401(2). On the other, the seller's invoice, Exhibit C-1, provide for delivery to S & S Services. But in this instance, since all of the purchase price can be traced to World Plus, title does not matter. 100% of the net proceeds from the sale of the Bobcat belong to the Trustee.
4. Melroe 853 Bobcat Loader 8' Hydraulic Blade.
The Melroe 853 Bobcat Loader 8' Hydraulic Blade ("the Hydraulic Blade") was purchased February 26, 1993 for a price of $3,250.00. FF&CL 19. All of the purchase price was paid with World Plus monies. FF&CL 19. 100% of the net proceeds from the sale of the Hydraulic Blade belong to the Trustee.
5. Melroe 811 Bobcat Loader Backhoe with bucket, Serial No. 630000622.
The Melroe 811 Bobcat Loader Backhoe with bucket, Serial No. 63000062 ("the Backhoe") was purchased on April 10, 1995, putatively by S & S Services, for a total price of $9,420.00. FF&CL 20. While there was some effort to make it appear the Backhoe was purchased with S & S Services monies, in fact the purchase price is traceable to World Plus monies, FF&CL 21-25. This court has concluded the purchase price was paid with World Plus monies. FF&CL 26. 100% of the net proceeds of from the sale of the Backhoe belong to the Trustee.
6. 1992 Bayliner 36 foot motor vessel, Model No. 3688 EY, Engine Serial No. 0D800760, and the flatbed trailer for transporting it, Alaska License No. 6894 PS, Serial No. 1P9FG4318HA103177.
The 1992 Bayliner 36 foot motor vessel, Model No. 3688 EY, Engine Serial No. 0D800760, and the flatbed trailer for transporting it, Alaska License No. 6894 PS, Serial No. 1P9FG4318HA103177 ("the Bayliner") was not directly the subject of trial on June 24, 1996. The Affidavit of Larry D. Compton establishes the following facts regarding the purchase of the Bayliner:
(a) There was a down payment of $48,000. The down payment is believed to have come from sale of a smaller Bayliner motor vessel.
(b) The balance of the purchase price, some $109,999.93, was paid by a loan from First National Bank of Anchorage, secured in the vessel.
(c) The vessel was titled to the Debtor and Steve Bonham.
(d) The payment coupons for the vessel show $34,979.86 was paid by World Plus, $29,870.47 with funds from the joint account of the Debtor and her husband, and one payment of $1,572.13 that cannot be traced.
The Debtor and her husband owned the vessel as tenants by the entirety. See exhibit D to the Affidavit of Larry Compton. The Trustee is entitled a percentage ownership based upon one half of the down payment, one half of the payments made by the Debtor and Steve Bonham out of their joint account, and all of the payments made by World Plus. In tabular form:
|
|
Total |
Portion to Steve |
Portion to Debtor |
|
Purchase Price |
152,575.00 |
76,287.50 |
76,287.50 |
|
Downpayment |
48,000.00 |
24,000.00 |
24,000.00 |
|
World Plus Payments |
34,979.86 |
0.00 |
34,979.86 |
|
S & S Payments |
29,870.47 |
14,935.24 |
14,935.24 |
|
Untraced Payments |
1,572.13 |
786.07 |
786.07 |
|
Totals |
114,422.46 |
39,721.30 |
74,701.16 |
|
Percentage of Total |
100.00% |
34.71% |
65.29% |
The Trustee is entitled to 65.29% of the proceeds, net of costs of sale and the perfected lien, realized from the sale of Bayliner.
7. 1993 Chevrolet Corvette, Vehicle Identification No. 1GYY33P5910414460.
The 1992 Chevrolet Corvette, Vehicle Identification No. 1GYY33P5910414460, was not a subject of the trial on June 24, 1996. By earlier pleadings, the Trustee had established that on or about May 17, 1993, the debtor purchased a Chevrolet Corvette, Vehicle Identification No. 1G1YY33P5910514460, from Tip Top Chevrolet. The purchase price was $42,746.00, with a down payment of $5,000.00 and the balance financed through GMAC. The note and security agreement are accurately described in the motion for relief from stay filed by GMAC on or about February 21, 1996. The vehicle was owned jointly by the Debtor and Steve Bonham.
The Trustee cannot directly establish the source of $5,000 downpayment, but there is strong evidence it was drawn on the World Plus account. Exhibit L, attached to the Affidavit of Larry D. Compton, is a receipt from Tip Top Chevrolet to the Debtor for the downpayment. Since checks for 1993 are missing, as described in this memorandum and in the Affidavit, the Trustee cannot produce the instrument itself. But the receipt refers to the downpayment as made with check number 5856. Comparing checks numbers on the various accounts, it is clear this was a World Plus check. The Key Bank World Plus account check numbers in December 1993, the next period for which the Trustee has records, begin in the 6200 range. The Key Bank S & S Services account check numbers for mid-December 1993 are in the 4200 range. A check numbered 5856 was almost certainly drawn on the Key Bank World Plus account.
Using the same methodology as was applied to the Bayliner, the respective interests of the Trustee and Steve Bonham in the 1993 Corvette are:
|
|
Total |
Portion to Steve |
Portion to Debtor |
|
Purchase Price |
42,746.00 |
21,373.00 |
21,373.00 |
|
Downpayment |
5,000.00 |
0.00 |
5,000.00 |
|
World Plus Payments |
8,331.80 |
0.00 |
8,331.80 |
|
S & S Payments |
15,830.42 |
7,915.21 |
7,915.21 |
|
Untraced Payments |
1,572.13 |
786.07 |
786.07 |
|
Totals |
30,734.35 |
8,701.28 |
22,033.08 |
|
Percentage of Total |
100.00% |
28.31% |
71.69% |
The Trustee should receive 63.55% of the proceeds, net of costs of sale and secured debt, from the sale of the Corvette, and Steve Bonham should receive 36.45%.
8. 1990 Itasca Motor Home, Vehicle Identification No. 3FCLF53G1LJA00688.
The Debtor and Steve Bonham also owned jointly a 1990 Itasca Motor Home, Vehicle Identification No. 3FCLF53G1LJA00688, purchased on or about April 14, 1990 for $63,601. The documents attached to the motion for relief from stay filed by John Deere on or about March 11, 1996 accurately describe the terms of the purchase. By stipulation approved by the court, the Trustee sold the Itasca Motor Home at auction. The Itasca Motor Home sold for $31,000, less a ten percent commission of $3,100, for net auction proceeds of $27,900. At the time of sale, there remained due and owing to John Deere Credit more than $43,400. By agreement between the Trustee and John Deere Credit, the Trustee was paid $1,500 by John Deere Credit for his time and effort in the sale of the Itasca Motor Home.
Since neither the Debtor nor Steve Bonham had any equity in the Itasca Motor Home, and since the payment to the Trustee by John Deere Credit was for services performed by the Trustee for the benefit of John Deere Credit, Steven A. Bonham has no claim to any part of that $1,500.00.
III. Summary
Because the gross sale price of the Bayliner is not yet determined and the Trustee is still discussing with First National Bank of Anchorage and GMAC the amount to be paid to them in satisfaction of their security interests, the dollar amounts attributable to all assets cannot now be determined with certainty. But the percentages to be received by the Trustee and Steve Bonham can be so determined, as shown above. Those percentages are summarized here:
|
Asset |
Percent to Steve Bonham |
Percent to Trustee |
|
1995 Harley |
5.74% |
94.26% |
|
1992 Harley |
11.94% |
88.06% |
|
Bobcat Loader |
0.00% |
100.00% |
|
Hydraulic Blade |
0.00% |
100.00% |
|
Backhoe and Bucket |
0.00% |
100.00% |
|
1992 Bayliner |
34.71% |
65.29% |
|
1993 Corvette |
28.31% |
71.69% |
|
1990 Itasca Motor Home |
0.00% |
100.00% |
The Trustee respectfully requests that judgment be entered accordingly.
DATED at Fairbanks, Alaska this _____ day of August, 1996.
GUESS & RUDD
Attorneys for Trustee Larry Compton/s/James D. DeWitt
ABA No. 760523
AFFIDAVIT OF LARRY D. COMPTON
IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
(§363 - Right to Proceeds)
The Trustee, LARRY D. COMPTON, being first duly sworn, states that:
1. I am the duly qualified and acting Trustee in the above-entitled Chapter 7 proceeding.
2. I have personal knowledge of the matters set forth in this affidavit, except as noted in this affidavit.
MISSING BANK RECORDS
3. I have reviewed those portions of the books and records of the debtor which are available to me. I cannot and do not represent to the court that I am fully informed as to the debtor's detailed finances. I am in possession and control, through my attorneys, of the following records of the debtor and her business activities:
(a) The joint checking account of the debtor and her husband at Key Bank of Alaska, account number 75019140, for 1990, 1991, 1992, 1994 and 1995.
(b) The business checking account of World Plus, Inc. at Key Bank of Alaska, account number 70013071, for December 1989, all of 1990, 1991, 1992, 1994 and 1995.
(c) The business checking account of Atlantic Pacific Funding Corporation at First National Bank of Anchorage, account number 2510-194-0, from approximately October 1993 to present.
(d) The business checking account of World Plus, Inc. at Denali State Bank, account number 1028281, for the period the account was open (a portion of 1995).
(e) The business checking account of World Plus, Inc. at Merrill Lynch, account number 28H-07015, for the period the account was open (a portion of 1995).
4. Despite strenuous efforts, I have not been able to locate bank statements, deposit slips or checks for most of calendar years 1988, 1989 or 1993 for either the joint checking account of the debtor and her husband at Key Bank of Alaska, account number 75019140, or the business checking account of World Plus, Inc. at Key Bank of Alaska, account number 70013071. I refer to these bank records in this Affidavit as "the Missing Records."
5. In an effort to obtain those Missing Records, I have caused counsel to issue subpoenas to (a) Ed Maynard & Associates, the debtor's former accountants, (b) Robinson & Sinz, CPA's, and (c) Key Bank of Alaska. Ed Maynard & Associates did not have any bank records. Based upon oral representations from counsel for Robinson & Sinz, they do not have any bank records, although they may have some summaries. Key Bank of Alaska has advised me that records for all of 1988 have been purged from its system as a matter of routine record destruction, along with the first half of 1989. Production of the records Key Bank still has is estimated to cost $20,000 and take a year and a half.
6. My investigation has disclosed that on two occasions, the United States seized records of the debtor. First on or about January 21, 1995, the United States seized records under a search warrant. And on or about September 11, 1995, the United States again seized records, this time under a grand jury subpoena. Bank records appear to have been taken under the grand jury subpoena.
7. On the instructions of Special U.S. Attorney Joe Beck, those records have been returned to the Trustee. Mr. Beck advises that, to the best of his knowledge and belief, none of the business records taken under either the search warrant or the grand jury subpoena remain in the possession or control of the United States.
8. I have made a careful, detailed examination of the bank records and other materials returned. The Missing Records are not among the materials returned by the United States.
9. My investigations suggested that another entity had obtained copies of bank records from Key Bank of Alaska. Based upon that suggestion, I have asked the United States District Court for the District of Alaska to authorize the release of business records obtained by the grand jury from third parties. That motion is now pending before the United States District Court.
10. The United States Attorney has advised the U.S. District Court that it has only the following business records:
(a) The joint checking account of the debtor and her husband at Key Bank of Alaska, account number 75019140, 1988 statements and deposits, 1989 statements and deposits and 1993 deposits.
(b) The business checking account of World Plus, Inc. at Key Bank of Alaska, account number 70013071, 1988 deposits and 1993 statements, deposits and checks.
(c) The business checking account of Atlantic Pacific Funding Corporation at First National Bank of Anchorage, account number 2510-194-0, 1993 statements, deposits and checks.
11. I emphasize I do not yet have these records, which I believe were obtained by the United States directly from Key Bank and First National Bank of Anchorage. I do not know whether I will ever obtain these records.
12. Even if the U.S. District Court permits the Trustee to copy the records it does have, I will still not have all of the Missing Records. Assuming I obtain those copies, I will still lack the following:
(a) The joint checking account of the debtor and her husband at Key Bank of Alaska, account number 75019140, 1988 checks, 1989 checks and 1993 statements and checks.
(b) The business checking account of World Plus, Inc. at Key Bank of Alaska, account number 70013071, 1988 checks and statements, and 1989 statements, checks and deposits.
13. In the case all of the records described in Paragraph 12 from 1988 and the first half of 1989, those records may never be available to me; certainly they are not available from Key Bank; it has purged them.
14. It seems most likely that the originals are either (a) still in the possession of the debtor or someone acting for her, despite her claims to the contrary; (b) destroyed by the debtor or someone acting for her; or (c) lost or misplaced by the United States.
15. Where records are not available to me, I ask the court to find that payments on the items of personal property that are the subject of this proceeding be assumed to have been the same in 1988, 1989 and 1993 as those made in the years for which I have business records. For example, if the evidence is that World Plus made an average of two-thirds of the payments on the Bayliner loan at First National Bank of Anchorage in 1992 and 1994, I ask the court to conclude that World Plus made two-thirds of the payments in 1993 as well.
1992 Bayliner
16. Exhibit A to this affidavit is the invoice from Salcha Marine, dated February 24, 1992, Invoice No. 2004, reflecting the purchase of the boat.
17. The $152,275 purchase price of the boat was paid by a down payment shown on the invoice as $25,500, to be raised to $40,000. The debtor testified at her Rule 2004 examination that the down payment was $48,000. The balance of the purchase price was paid by a note in the amount of $109,999.93 given by the debtor and Steve Bonham to First National Bank of Anchorage ("FNBA"). A copy of the note is attached as Exhibit B. The note required monthly installment payments of $1,572.13. The debtor and her husband purchased credit life insurance for the FNBA note by a premium of $9,999.93. A copy of the loan disclosure form is attached as Exhibit C. The note is secured in the vessel by a ship mortgage in favor of FNBA. A copy of the ship mortgage is attached as Exhibit D.
18. Among the debtor's records, I found the payment coupons for the FNBA vessel loan described above. Copies of the payment stubs are attached as Exhibit E. The court will note most of the coupon stubs have noted the date of payment, the check number and the notation "WP" or "S&S." The debtor has testified that payments described in coupon stubs marked "WP" were paid with checks drawn on a World Plus checking account, Key Bank of Alaska account number 70013071, and payments described in a coupon stub marked "S&S" were paid with checks drawn on S & S Services account, Key Bank of Alaska account number 75019140.
19. I have reviewed the payment coupon stubs and tabulated them as to the account from which payment was made as follows:
Payment Date World Plus S & S Unknown Apr-92 1,572.13 May-92 1,572.13 Jun-92 1,572.13 Jul-92 1,572.13 Aug-92 1,572.13 Sep-92 1,572.13 Oct-92 1,572.13 Nov-92 1,572.13 Dec-92 1,572.13 Jan-93 1,572.13 Feb-93 1,572.13 Mar-93 1,572.13 Apr-93 1,572.13 May-93 1,572.13 Jun-93 1,572.13 Jul-93 1,572.13 Aug-93 1,572.13 Sep-93 1,572.13 Oct-93 1,572.13 Nov-93 1,572.13 Dec-93 1,572.13 Jan-94 1,572.13 Feb-94 1,572.13 Mar-94 1,572.13 Apr-94 1,572.13 May-94 1,572.13 Jun-94 1,572.13 Jul-94 1,572.13 Aug-94 1,572.13 Sep-94 1,572.13 Oct-94 1,572.13 Nov-94 1,572.13 Dec-94 1,572.13 Jan-95 1,572.13 Feb-95 1,572.13 Mar-95 1,572.13 Apr-95 1,572.13 May-95 1,807.93 Jun-95 1,572.13 Jul-95 1,650.73 Aug-95 1,650.73 Sep-95 1,572.13 Oct-95 Nov-95 Dec-95 TOTALS 34,979.86 29,870.47 1,572.13
Based upon the debtor's records, then, more than half of the installment payments on the 1992 Bayliner came exclusively from World Plus funds.
1993 CORVETTE
20. On or about May 17, 1993, the debtor purchased a Chevrolet Corvette, Vehicle Identification No. 1G1YY33P5910514460, from Tip Top Chevrolet. A copy of the purchase contract is attached to this affidavit as Exhibit F. As shown by the invoice, the purchase price was $42,746.00, with a down payment of $5,000.00 and the balance financed through GMAC. The note and security agreement are accurately described in the motion for relief from stay filed by GMAC on or about February 21, 1996.
21. I have not been able to locate the source of the downpayment, but I believe there is strong circumstantial evidence that it was a check from World Plus. Attached to this Affidavit as Exhibit L is a copy of a receipt from Tip Top Chevrolet to the Debtor for $5,000 dated May 17, 1993, showing the downpayment was made with Check No. 5856. Checks for that part of 1993 are not available, as I have described earlier in this Affidavit. But I have reviewed check number sequences for the various accounts, and a check numbered 5856 drawn in May of 1993 was almost certainly drawn on the Key Bank World Plus account. Checks drawn on the Key Bank World Plus account in mid-December 1993 are numbered in the 6200-6300 range. By contrast, checks drawn in late December, 1993 on the Kay Bank S & S Services account are numbered in the 4000-4200 range. In my opinion, the circumstantial evidence overwhelmingly supports the conclusion the downpayment was made by World Plus.
22. Among the debtor's records, I found the payment coupons for the GMAC financing of the balance of the purchase price. Copies of the payment coupon stubs are attached to this affidavit as Exhibit G. As is the case with the FNBA financing of the boat, the court will note most of the coupon stubs have noted the date of payment, the check number and the notation "WP" or "S&S." The debtor has testified that payments described in coupon stubs marked "WP" were paid with checks drawn on a World Plus checking account, and payments described in a coupon stub marked "S&S" were paid with checks drawn on S & S Services account.
23. I have reviewed the payment coupon stubs and tabulated them as to the account from which payment was made as follows:
Corvette
Payment Date World Plus S & S Unknown Jun-93 833.18 Jul-93 833.18 Jul-93 833.18 Aug-93 833.18 Sep-93 833.18 Oct-93 833.18 Nov-93 833.18 Dec-93 833.18 Jan-94 833.18 Feb-94 833.18 Mar-94 833.18 Apr-94 833.18 May-94 833.18 Jun-94 833.18 Jul-94 833.18 Aug-94 833.18 Sep-94 833.18 Oct-94 833.18 Nov-94 833.18 Dec-94 833.18 Jan-95 833.18 Feb-95 833.18 Mar-95 833.18 Apr-95 833.18 May-95 833.18 Jun-95 833.18 Jul-95 833.18 Aug-95 833.18 Sep-95 833.18 Oct-95 833.18 Nov-95 833.18 Dec-95 TOTALS 8,331.80 15,830.42 1,666.36
24. The Corvette was owned jointly by the Debtor and Steve Bonham. A copy of the motor vehicle registration is attached as Exhibit H. By stipulation approved by the court, the Corvette was sold at public auction on May 13, 1996 for $28,000, which, net of a commission of ten percent or $2,800, resulted in net auction proceeds of $25,200.
1990 ITASCA MOTOR HOME
25. The Debtor and Steve Bonham also owned jointly a 1990 Itasca Motor Home, Vehicle Identification No. 3FCLF53G1LJA00688, purchased on or about April 14, 1990 for $63,601. The documents attached to the motion for relief from stay filed by John Deere on or about March 11, 1996 accurately describe the terms of the purchase.
26. The debtor and Steve Bonham paid $13,800 as a down payment, $5,000 in cash and $6,800 by trading in a motor home they already owned. They financed the balance of $49,801 by a loan from John Deere Credit Services bearing interest at 14.50% per annum, calling for monthly installments of $680.64 for a period of fifteen years. A copy of the Consumer Loan Contract is attached to this Affidavit as Exhibit I.
27. By stipulation approved by the court, the Trustee sold the Itasca Motor Home at auction. The Itasca Motor Home sold for $31,000, less a ten percent commission of $3,100, for net auction proceeds of $27,900. At the time of sale, there remained due and owing to John Deere Credit more than $43,400. By agreement between the Trustee and John Deere Credit, the Trustee was paid $1,500 by John Deere Credit for his time and effort in the sale of the Itasca Motor Home.
28. Since neither the Debtor nor Steve Bonham had any equity in the Itasca Motor Home, and since the payment to the Trustee by John Deere Credit was for services performed by the Trustee for the benefit of John Deere Credit, Steven A. Bonham has no claim to any part of that $1,500.00.
29. At my instructions, my counsel gave Steven A. Bonham written notice of the redemption right as to the two motorcycles, the Bobcat, the Hydraulic Blade and the Backhoe. A copy of the letter giving notice is attached to this Affidavit as Exhibit J.
30. Steven A. Bonham made no effort to exercise his redemption rights under 11 U.S.C. §363(i). However, the Debtor did write to the Trustee's counsel by undated letter received August 15, 1996, a copy of which is attached to this Affidavit as Exhibit K.
FURTHER AFFIANT SAYETH NAUGHT.
DATED at Fairbanks, Alaska this ___ day of August, 1996.
/s/LARRY D. COMPTON
SUBSCRIBED AND SWORN to before me this _____ day of ________________, 1996.
ORDER FOR SUMMARY JUDGMENT
(§363 - Right to Proceeds)
The Trustee moved for summary judgment on the rights as between the Trustee and Steven A. Bonham to the proceeds from the sale of various items of personal property that were the subject of this complaint.
After consideration of the arguments of the parties, the record in earlier stages of this proceeding, and the evidence, the court finds that there are no material issues of disputed fact and that the percentages of ownership of the Trustee and Steven A. Bonham in each of the assets can be determined as a matter of law. Therefore;
IT IS ORDERED that the proceeds from the sale of each of the following items of personal property be distributed as follows:
|
Asset |
Percent to Steve Bonham |
Percent to Trustee |
|
1995 Harley |
5.74% |
94.26% |
|
1992 Harley |
11.94% |
88.06% |
|
Bobcat Loader |
0.00% |
100.00% |
|
Hydraulic Blade |
0.00% |
100.00% |
|
Backhoe and Bucket |
0.00% |
100.00% |
|
1992 Bayliner |
34.71% |
65.29% |
|
1993 Corvette |
28.31% |
71.69% |
|
1990 Itasca Motor Home |
0.00% |
100.00% |
IT IS FURTHER ORDERED that under 11 U.S.C. §363(j), the foregoing percentages shall be applied to the proceeds from the sale, net of costs of transport and sale, but prior to any deduction for trustee's fees under 11 U.S.C. §326.
IT IS FURTHER ORDERED that the Trustee upon entry of this order shall disburse monies in accord with the schedule set out above in the case of all of the assets except the Bayliner and the Corvette. In the case of the Bayliner, monies shall not disburse until after court approval of the auction sale and an accounting to the court for the amount due to First National Bank of Anchorage. In the case of the Corvette, monies shall not disburse until the Trustee has filed an accounting for the amount due to GMAC.
DATED at ________________, Alaska this ___ day of __________, 1996.
[LODGED]
Herbert A. Ross
Bankruptcy Judge