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  • 8/6/2019 SUPPLEMENTAL OBJECTION

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    ENVER W. PAINTER, JR. (JD 2525)

    Attorney at Law, A Law Corporation

    1188 Bishop Street, Suite 2505

    Honolulu, Hawaii 96813

    Telephone: (808) 537-9777Facsimile: (808) 537-9207

    [email protected]

    General Counsel for Trustee

    DANE S. FIELD

    IN THE UNITED STATES BANKRUPTCY COURT

    FOR THE DISTRICT OF HAWAII

    In re

    DALE JULIAN PARSONS, JR., and

    MARY VIRGINIA PARSONS

    Debtors

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    Case No. 09-02937

    TRUSTEES SUPPLEMENTAL

    OBJECTION TO DEBTORS

    MOTION TO COMPEL TRUSTEE

    TO ABANDON PROPERTY

    Continued HearingDate: August 10, 2011

    Time: 10:30 a.m.

    Judge: The Honorable Robert J. Faris

    TRUSTEES SUPPLEMENTAL OBJECTION TO DEBTORS MOTION

    TO COMPEL TRUSTEE TO ABANDON PROPERTY (Dkt. # 208)

    Comes Now the duly appointed and acting Chapter 7 Trustee, Dane S.

    Field, by and through his undersigned counsel and object to the Debtors Motion

    to Compel Trustee to Abandon Property filed herein on June 20, 2011, Dkt. # 208

    as follows.

    U.S. Bankruptcy Court - Hawaii #09-02937 Dkt # 224 Filed 08/08/11 Page 1 of 3

    mailto:[email protected]:[email protected]
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    As stated in the Trustees initial objection to Debtors instant Motion, it is

    axiomatic that the burden of proving that the property to be abandoned is of

    inconsequential value or benefit to the estate rest squarely upon the shoulder of the

    party requesting abandonment. Here the Debtors/ Movants have not meet their

    burden.

    Also as stated in the Trustees initial objection to Debtors instant Motion,

    the Trustee is negotiating with American Savings Bank (ASB) for the sale of the

    property with a substantial carve out for the estate.

    Lastly, since filing his initial objection to the Debtors instant Motion, the

    Trustees has discovered that American Savings Banks (ASB) purported

    mortgage in the subject property was not properly perfected at the time of the

    filing of the petition. To the contrary, the Mortgage was in fact in favor of MERS

    as nominee for ASB at the time of the filing of the petition. It was only

    subsequent to the filing of the petition that MERS conveyed its mortgage interest

    in the subject property to ASB. The Trustee believes that his hypothetical lien

    creditor status conferred by 544 of the Bankruptcy Code is superior to and has

    priority over any security interest ASB may claim in the property. The Trustee has

    advised ASB of his belief that his 544 status is superior to any claimed mortgage

    interest of ASB and is awaiting ASBs response.

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    U.S. Bankruptcy Court - Hawaii #09-02937 Dkt # 224 Filed 08/08/11 Page 2 of 3

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    The Trustees counsel has also advised Debtors counsel, Ramon Ferrer of his

    beliefs regarding the priority of ASBs mortgage interest vis a via the Trustees

    hypothetical lien creditor status and has requested that the Debtors withdraw their

    instant Motion. To date Mr. Ferrer has not responded to counsel requests.

    The Trustees counsel is presently in the Republic of Palau and will not be

    able to attend the continued hearing on the instant motion in person or via

    telephone.

    As the subject property has value to the estate, the amount of which is yet to

    be determined and which amount could be substantial should ASB agree with the

    Trustees assessment of the priorities of their respective claims or the Trustee

    prevail on his belief that his interest in the property is superior to ASBs

    unperfected mortgage interest, the instant Motion should be denied.

    Alternatively, the Trustee requests that the hearing on the Motion be continued

    until his counsel can appear before the Court and present argument and evidence

    of the estates interest in the subject property.

    Dated: Koror, Palau, August 9, 2011

    /s/Enver W. Painter, Jr.

    E NVER W. PAINTER, JR

    General Counsel for Trustee DANE S. FIELD

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    U.S. Bankruptcy Court - Hawaii #09-02937 Dkt # 224 Filed 08/08/11 Page 3 of 3