In re Raejean S. Bonham dba World Plus
Bankruptcy No. F95-00897
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NOTE: The Trustee has filed the following motion to enforce access to the real property in order to attempt to sell that property. Please also see the Supplemental Memorandum in Support of Access and the Supplemental Declaration Regarding New Evidence.
This motion is scheduled to be heard by the bankrputcy court in Fairbanks on June 16, 1996 at 2:00 PM.
UNITED STATES BANKRUPTCY COURT
DISTRICT OF ALASKA
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In Re: |
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RAEJEAN BONHAM, aka JEAN BONHAM, aka |
) |
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JEANNIE BONHAM dba WORLD PLUS |
) Bankruptcy No. F95-00897-HAR |
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Debtor. |
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_____________________________________ |
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LARRY D. COMPTON, |
) |
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Plaintiff, |
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) |
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v. |
) Adv Proc No. 95-00897-185-HAR |
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) Bancap No. 96-4298 |
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RAEJEAN S. BONHAM, STEVE A. |
) |
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BONHAM, ALLEN DALE CARTWRIGHT, |
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MARIA CARTWRIGHT aka MARIA |
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CAPORICCI, and JAMES T. DECKER, SR. |
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Defendants. |
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MOTION TO ENFORCE ORDER
The Trustee, Larry D. Compton, by and through his attorneys; Guess & Rudd, moves to enforce Paragraph 3 at page 3 of the court's Order Deferring Ruling on Partial Summary Judgment dated May 6, 1997.
As described in the Affidavit of Gerrie Duffy, the debtor has failed to comply with the court's order, and, at the date of this Motion, the debtor's real estate agent has yet to obtain access to the property, despite extended efforts.
The Trustee seeks the following relief:
1. An order compelling the debtor to grant immediate access to the debtor's residence to Gerrie Duffy and Larry Compton, under penalty of contempt.
2. An order extending the marketing period in the court's May 6, 1997 Order by two days for each day the debtor delays the trustee's right of access.
3. An order requiring the debtor to reimburse the trustee for the costs and attorney's fees of bringing this motion, in the amount of $1,000.00 and an additional reimbursement for the trustee's out-of-pocket costs of $50.00 and his time in the amount of $200.00.
4. An order, effective June 1, 1997, imposing a sanction of $250.00 per day against Steve Bonham and Raejean Bonham jointly, payable by credit against the proceeds from the sale of the personal property in Case No. F95-00897-004-HAR, for each day or part of a day in which the Bonhams deny any real estate agent access to the property.
5. An order, effective June 10, 1997, imposing a sanction of $1,000 per day against otherwise exempt property of Steve Bonham and Raejean Bonham, for each day or part of a day in which the Bonhams deny any real estate agent access to the property.
This motion is supported by a memorandum of even date.
DATED at Fairbanks, Alaska this ___ day of May, 1997.
GUESS & RUDD
Attorneys for Larry Compton
James D. DeWitt
ABA No. 760523
UNITED STATES BANKRUPTCY COURT
DISTRICT OF ALASKA
|
In Re: |
) |
|
RAEJEAN BONHAM, aka JEAN BONHAM, aka |
) |
|
JEANNIE BONHAM dba WORLD PLUS |
) Bankruptcy No. F95-00897-HAR |
|
Debtor. |
) |
|
_____________________________________ |
) |
|
LARRY D. COMPTON, |
) |
|
Plaintiff, |
) |
|
|
) |
|
v. |
) Adv Proc No. 95-00897-185-HAR |
|
|
) Bancap No. 96-4298 |
|
RAEJEAN S. BONHAM, STEVE A. |
) |
|
BONHAM, ALLEN DALE CARTWRIGHT, |
) |
|
MARIA CARTWRIGHT aka MARIA |
) |
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CAPORICCI, and JAMES T. DECKER, SR. |
) |
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Defendants. |
) |
AFFIDAVIT OF GERRIE DUFFY
STATE OF ALASKA )
FOURTH JUDICIAL DISTRICT )
GERRIE DUFFY, being first duly sworn, states that:
1. I am a licensed real estate agent employed at Coldwell Banker Greatland Realty, and I am the real estate agent primarily responsible for the listing of the real property at issue in this case. A copy of that listing is attached as Exhibit A.
2. Despite repeated, strenuous efforts, involving many telephone messages left on the answering machine of the Bonhams, and many facsimile messages to them, I have not been able to speak with Raejean Bonham or Steve Bonham. I have not been able to get either of them to agree to a time when I can inspect their residence. I have not been able to enter onto the property or inspect the residence. A log of my efforts to contact the Bonhams is attached as Exhibit B.
3. On one occasion, Wednesday, May 14, 1997 at 9:34 AM, Raejean Bonham returned a telephone call when I was not available to take her call. She left a message with her telephone number, "She came in late last night and was not able to return messages. There is no one at the house today, will try to call and set up an appointment for another day." She did not call back and has not returned any of my calls since.
4. I have received two facsimile messages from Raejean Bonham, one dated May 14, 1997 and one dated May 15, 1997. Copies at attached as Exhibits C and D, respectively. A copy of my reply facsimile message to Raejean Bonham is attached as Exhibit E.
5. Except for the Brief description of Steve Bonham's work schedule in Exhibit D, I have not received the sleep schedule for Steve Bonham as required by Paragraph 3(c) of the court's order.
6. Obviously, I will not be able to market the property unless I and other real estate agents have access to it.
7. Sales of residential property in Fairbanks are somewhat seasonal; the next few months are the peak season. To the extent that the Bonhams delay marketing the property during the summer months, they impact the ability to sell the property at all.
8. The impact of the Bonhams stalling and delaying tactics creates a grave risk that other real estate agents will regard the property as more trouble than it is worth. That perception would gravely impact the ability to sell the property for the price set by the court.
9. For the reasons set forth in this affidavit, I believe that access to the property requires the court's immediate attention.
/s/Gerrie Duffy
SWORN TO AND SUBSCRIBED before me at Fairbanks, Alaska this ___ day of May, 1997.
UNITED STATES BANKRUPTCY COURT
DISTRICT OF ALASKA
|
In Re: |
) |
|
RAEJEAN BONHAM, aka JEAN BONHAM, aka |
) |
|
JEANNIE BONHAM dba WORLD PLUS |
) Bankruptcy No. F95-00897-HAR |
|
Debtor. |
) |
|
_____________________________________ |
) |
|
LARRY D. COMPTON, |
) |
|
Plaintiff, |
) |
|
|
) |
|
v. |
) Adv Proc No. 95-00897-185-HAR |
|
|
) Bancap No. 96-4298 |
|
RAEJEAN S. BONHAM, STEVE A. |
) |
|
BONHAM, ALLEN DALE CARTWRIGHT, |
) |
|
MARIA CARTWRIGHT aka MARIA |
) |
|
CAPORICCI, and JAMES T. DECKER, SR. |
) |
|
Defendants. |
) |
MEMORANDUM IN SUPPORT OF
MOTION TO ENFORCE ORDER
Predictably, the debtor and Steve Bonham have failed to comply with the court's Order Deferring Ruling on Partial Summary Judgment dated May 6, 1997. As detailed in the Affidavit of Gerrie Duffy filed with this motion, the debtor and Steve Bonham have stone-walled all efforts by the trustee's real estate agent to make an inspection of the property.
The trustee believes that without immediate, serious sanctions, the debtor will continue to drag her feet, obstructing, delaying and frustrating efforts to sell the property. Her conduct here is part of a pattern she has shown from the outset. There is every reason to expect she will continue the pattern unless and until the court imposes significant sanctions.
The court already has before it the trustee's Second Renewed Motion for Order to Show Cause, filed February 20, 1997, demonstrating the debtor's attempts to defraud the estate of the value of this property through an attempted conspiracy with Maria Caporicci and Allen Dale Cartwright. If, as those pleadings make clear, the debtor will attempt bankruptcy fraud in an effort to frustrate the sale of the Bonhams' residence, then the court is going to have to take strong action to assure that the debtor complies with its Order of May 6, 1997.
The court has shown remarkable restraint with the debtor, and has assumed Steve Bonham was a comparatively innocent party. An unfortunate side-effect of the court's restraint is an apparent belief by the debtor that she can ignore court orders. Even stalling is injurious to the estate and the creditors; the court will recall that under the terms of the settlement with Caporicci and Cartwright, the trustee has two years to sell the property. The better part of a month has already been lost. From the Bonhams' point of view, they are succeeding in their goal of avoiding the sale of the residence.
Unless and until the court enters an order compelling access, with meaningful sanctions, the Bonhams will continue to ignore the court's orders, since delay serves their interests. The issue should not be whether the court will enter sanctions, but rather what those sanctions will be. The trustee asks the court to consider the following sanctions:
1. An order to show cause why the debtor and Steve Bonham should not be held in contempt for failure to comply with the court's order of May 6, 1997..
2. An order extending the marketing period in the court's May 6, 1997 Order by two days for each day the debtor delays the trustee's right of access.
3. An order requiring the debtor to reimburse the trustee for the costs and attorney's fees of bringing this motion, in the amount of $1,000.00 and an additional reimbursement for the trustee's out-of-pocket costs of $50.00 and his time in the amount of $200.00.
4. An order, effective June 1, 1997, imposing a sanction of $250.00 per day against Steve Bonham and Raejean Bonham jointly, payable by credit against the proceeds from the sale of the personal property in Case No. F95-00897-004-HAR, for each day or part of a day in which the Bonhams deny any real estate agent access to the property.
5. An order, effective June 10, 1997, imposing a sanction of $1,000 per day against otherwise exempt property of Steve Bonham and Raejean Bonham, for each day or part of a day in which the Bonhams deny any real estate agent access to the property.
It is absolutely essential that free and undisputed access be given to real estate agents selling the property. If the Bonhams succeed in creating the appearance that presentation of the property to prospective purchasers is too difficult to be worth the trouble, real estate agents will become reluctant to show the property and then the Bonhams will have succeeded in hampering the sale of the property. That may well affect the market price, and may have already impaired the value of the property.
These remedies and sanctions may preserve the value of the residence for the creditors.
The trustee has provided authority for civil contempt proceedings
to the court on three earlier occasions and will not waste the
court's time with additional citations here. Instead, the trustee
urges the court to act at once to demonstrate to the Bonhams that
they may not ignore court orders with impunity.
However, with regard to the fifth sanction, the trustee directs the
court's attention to In re Swanson, 207 B.R. 76, 1997 WL
160345 (Bankr. D. N.J.), where the court held sanctions for contempt
could be offset against a homestead exemption, and that sanctions for
contempt were not administrative expenses for purposes of 11 U.S.C.
§522(k). The proposed relief sought by the trustee would delay
imposition of this aspect of the court's order to June 10, 1997.
DATED at Fairbanks, Alaska this ___ day of May, 1997.
GUESS & RUDD
Attorneys for the Trustee
James D. DeWitt
ABA No. 760523
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