In re Raejean S. Bonham dba World Plus
Bankruptcy No. F95-00897
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MOTION FOR RECONSIDERATION
AND RENEWED MOTION FOR SUMMARY JUDGMENT
(§363 - Right to Proceeds)

The Trustee, under authority of Local Bankruptcy Rule 9013-2(b), moves for reconsideration of the court's Order Deferring Ruling on Motion for Summary Judgment (Docket No. 82).

This motion is supported by a memorandum of even date, the exhibits thereto and other pleadings filed this date.

DATED at Fairbanks, Alaska this ___ day of October, 1996.

GUESS & RUDD
Attorneys for Trustee

James D. DeWitt
ABA No. 760523

MEMORANDUM IN SUPPORT OF
MOTION FOR RECONSIDERATION
AND RENEWED MOTION FOR SUMMARY JUDGMENT
(§363 - Right to Proceeds)

The court, by order filed October 8, 1996, deferred ruling on the Trustee's motion for summary judgment regarding the proceeds from the sale of the personal property. The Trustee by this motion asks the court to reconsider that ruling.

The court identified several reasons for deferring ruling. The Trustee will address them individually.

1. Not All of the Assets Have Been Sold.

All of the personal property that was the subject of the court's order filed July 3, 1996 has been sold. The only item of personal property that has not been sold is the Porsche 944. As to that automobile, service on Lirette was never effected. With this Motion, as stated in the motion for summary judgment, note 1, is filed a Notice of Dismissal Without Prejudice.

The following table summarizes the proceeds from the sale of the various items of personal property:

Date and Manner of Sale	Description of Asset Sold	Gross Proceeds from Auction	Net Proceeds to Estate
August 7, 1996, Public Auction	1992 36 foot Bayliner motor vessel	$90,000.00	$2,000.00
May 13, 1996, Public Auction	1992 Chevrolet Corvette	28,000.00	1,500.00
May 13, 1996, Public Auction	1990 Itasca Motor Home	31,000.00	1,500.00
August 7, 1996, Public Auction	1995 Harley Davidson Motorcycle	15,900.00	14,310.00
August 7, 1996, Public Auction	1992 Harley Davidson Motorcycle	14,100.00	12,690.00
August 7, 1996, Public Auction	Bobcat Loader, backhoe attachment and hydraulic blade attachment	29,000.00	26,100.00

The reports of auction for the sale of each of these assets have been filed previously, but are in any event attached to this Motion as Exhibits A and B. There is no unsold item of personal property remaining in the case.

2. The Family House Has Not Been Sold.

The family residence is not the subject of this litigation. No case has been commenced regarding the residence. The Trustee does not yet even commenced an action for the sale of the family residence. To bring such an action, the Trustee must be able to identify, with some level of certainty, the source of the funds used, and particularly the funds used for the downpayment. As the court will recall, the Debtor claims not to have those records, the records were not found among the documents at her business premises, and the Trustee has been diligently seeking them at other possible locations.

The Trustee is aware of no case authority which requires all property of the estate be sold before a determination can be made as to the right to proceeds. Indeed, as is evident from the earlier motion for summary judgment, each asset must be analyzed individually to determine who paid how much if its purchase price.

Moreover, it is unfair to all of the parties to require, in effect, completion of liquidation of the estate as a condition precedent to allocation between Steve Bonham and the Trustee of the assets already liquidated. Steve Bonham is subject to a preliminary injunction constraining his ability to sell assets. The practical effect of the court's order deferring a ruling is to deny him the right to the use money that is lawfully his.

It is also unfair to the Trustee to impose such a condition precedent. The Trustee and the Trustee's counsel have incurred very substantial expenses in the administration of this case. Most of those expenses are the result of obstructive and dilatory tactics on the part of the Debtor and, to a certain extent, Steve Bonham. For example:

(a) The Debtor and Steve Bonham rejected all settlement offers in this specific matter, raised fact issues in opposition to the Trustee's initial motion for summary judgment which were later proven by the Trustee to be false or misleading, and, when they came to trial, failed to even bother to bring the exhibits assembled and served upon them. Even after a recess for lunch, when they would have had an opportunity to bring the exhibits from home, they failed to do so. The plain inference is that Steve Bonham had no real goal except to delay and frustrate the administration of the case.

(b) The court will recall that the Debtor opposed acceptance of a late bid on the 1992 Bayliner which would have netted Steve Bonham additional money, claiming she wanted to protect the integrity of the auction process. The court can reasonably view that claim with suspicion.

(c) The Debtor has taken or attempted to take several appeals to the U.S. District Court and to the 9th Circuit Court of Appeals which were utterly without merit, in attempts to delay administration of the case.
(d) The Debtor sought a writ of mandamus from the 9th Circuit Court of Appeals requiring recusal of the court, and a stay pending determination of that writ.

Those obstructive and dilatory tactics have cost the estate tens of thousands of dollars in costs and attorneys' fees. If, as the Trustee suspects, the Debtor is attempting to make this case as difficult and expensive as possible to administer, then delaying the order in this case is rewarding and encouraging that behavior.

3. Other Issues Raised in the Adversary Actions.

At the time the instant motion for summary judgment was filed, Case No. F95-00897-004 had not been consolidated with F95-00897-001. The consolidation caused issues in the injunction case - a claim for an accounting, surrender of records and a permanent injunction - to be technically present in the consolidated proceeding.

The Trustee reminds the court that an order for summary judgment is not a judgment itself. If the court does grant the Trustee's motion for summary judgment, it will not itself operate to authorize use of the funds. The Trustee will then have to seek entry of a judgment, either as a final judgment or under Bankruptcy Rule 7054 and Fed. R. Civ. P. 54 or a Partial Final Judgment under Bankruptcy Rule 7054 and Fed. R. Civ. P. 54(b). The court need not wait for resolution of issues in the consolidated case before granting the order for summary judgment. The issue of whether to grant Rule 54(b) relief as to the order for summary judgment is not yet before the court.

However, turning to the issues in the consolidated case, the Trustee is deeply skeptical that the Debtor or Steve Bonham would be able to complete an accounting, even if ordered to do so. The Debtor has been unable to file meaningful schedules and statements, even under penalty of contempt. As is evident from the record in the trial on the § 363(h) issues, the Debtor has engaged in a wide variety of tactics to conceal the uses she has made of assets of the estate. See, for example, the uses made of funds for the purchase of the 1992 Harley Davidson Motorcycle described at Findings of Fact Nos. 13-14.

Accordingly, there is filed with this motion a Motion for Dismissal Without Prejudice of those portions of the complaint seeking an accounting. The Trustee specifically reserves the right to re-file those counts if circumstances warrant it.

Regarding the portions of the complaint in Case No. F95-0897-001 seeking turnover of records, the Debtor and Steve Bonham have testified and filed pleadings on several occasions representing that they have no records of any kind in their care, custody, possession and control. In reliance upon those representations, the Trustee has filed with this motion a Motion for Dismissal Without Prejudice of those portions of the complaint seeking a turnover of records. The Trustee specifically reserves the right to re-file those counts if circumstances warrant it.

The only issue that will remain before the court relates to the request for injunctive relief as to Steve Bonham. By separate motion of even date, the Trustee seeks entry of a permanent injunction.

Thus, while resolution of all of the issues in the consolidated cases are not necessary or even relevant to the grant or denial of the pending motion for summary judgment, in fact all of the remaining issues are before the court for resolution.

If the court determines that all of the issues are not presently resolved, the Trustee is still entitled to partial summary judgment under Rule 56(d). See In re Anderson, 29 C.B.C.2d 1462, 159 B.R. 830 (B.Ct. N.D. IL 1993). Partial summary judgment is appropriate where a summary judgment motion addresses all of the issues in one count. Plainly, all of the counts of the complaint in F95-00897-004-HAR are resolved by the combined motion for summary judgment and dismissal without prejudice of James Todd Lirette.

4. The Debtor's Untimely Objections to Summary Judgment.

The Debtor served the Trustee with an untimely opposition to the motion for summary judgment, an untimely "response" to the certificate of no objections, and identical affidavits signed by the Debtor and Steve Bonham. Service was effected on or about October 8, 1996. Apparently, some or all of these pleadings were served on the court, but not on the Trustee, via facsimile on or before October 7, 1996.

The pleadings are untimely. The Debtor and Steve Bonham offer no explanation or excuse for filing untimely. By separate motion, the Trustee has moved to strike those pleadings. Unless and until the court requires the Debtor to adhere to the deadlines imposed by Bankruptcy Rules, the Debtor will ignore them. In addition, the Trustee has filed a reply to the untimely opposition to motion for summary judgment in the event the court does not strike the opposition as untimely.

5. The Requirement of a Liquidated Sum.

As is shown earlier in this pleading, the personal property over which the court has jurisdiction has been entirely liquidated. See pages 2-3, supra.

6. Proof That a Final Judgment Is Appropriate.

The Trustee does not understand this issue to be ripe. There is no order for summary judgment entered as yet. But since the court seems to be inviting such a motion, the Trustee has filed a Motion for Partial Judgment under Fed. R. Civ. P. 54(b) this same date.

CONCLUSION

The Trustee has shown that there is no basis for deferring entry of an order for summary judgment. The court should reconsider its order filed October 8, 1996 and enter an order for summary judgment under §363 regarding the proceeds.

DATED at Fairbanks, Alaska this ___ day of October, 1996.

GUESS & RUDD
Attorneys for Trustee

James D. DeWitt
ABA No. 760523

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