CASE NO. 09-02937.United States Bankruptcy Court, D. Hawaii.
April 21, 2010
KLEVANSKY PIPER VAN ETTEN, LLP, A Limited Liability Law Partnership, SIMON KLEVANSKY 3217-0, ALIKA L. PIPER 6949-0, Honolulu, Hawaii, Attorneys for Creditor, PACIFIC SOURCE, INC. and MARK MASON.
FINDINGS OF FACT AND CONCLUSIONS OF LAW RESPECTING DEBTORS’ MOTION FOR AWARD OF DAMAGES AS A RESULT OF VIOLATION OF THE AUTOMATIC STAY BY CREDITOR PACIFIC SOURCE, INC. AND CREDITOR MARK MASON, FILED ON MARCH 8, 2010 Related Docket No.: 39
LLOYD KING, Bankruptcy Judge
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The Motion for Award of Damages as a Result of Violation of the Automatic Stay (the “Motion”), filed on March 8, 2010 by Debtors DALE JULIAN PARSONS, JR. and MARY VIRGINIA PARSONS (collectively the “Debtors”) came on for hearing on March 31, 2010, before the Honorable Lloyd King, United States Bankruptcy Judge. Ramon Ferrer, Esq. appeared on behalf of the Debtors, who were also in attendance. Simon Klevansky, Esq. and Alika L. Piper, Esq. appeared on behalf of Creditor Pacific Source, Inc. (“Pacific Source”) and Mark Mason. There were no other appearances.
The Court has read the Motion and the opposition and reply memoranda filed in response thereto, and has heard the arguments of counsel at the hearing. For the reasons stated on the record, pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure, the Court issues the following Findings of Fact and Conclusions of Law:
Findings of Fact
1. Aloha Package Homes, LLC (“APH”) is not in bankruptcy.
2. The assets of APH are not property of the bankruptcy estate.
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3. APH is a separate business entity from the Debtors. APH had its own business dealings with Pacific Source and Mark Mason.
4. The Debtors guaranteed the obligations of APH to Pacific Source.
5. The actions which the Debtors allege were violations of the automatic stay, however, involve business dealings between APH and Pacific Source and Mark Mason, and not the Debtors.
6. Because APH is not in bankruptcy, APH is not protected by the automatic stay, and there was no violation of the automatic stay by Pacific Source and Mark Mason.
7. The Debtors’ allegations regarding the “Vineyard” project are incomplete, and the Debtors have failed to prove that the acts of Pacific Source or Mark Mason with respect to that project violated the automatic stay.
8. The Debtors have the burden to prove the alleged improper actions on the part of Pacific Source and Mark Mason violated the automatic stay. The Debtors have failed to meet that burden.
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CONCLUSION OF LAW
Based on the foregoing Findings of Fact, Pacific Source and Mark Mason have not violated the automatic stay.