UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

PIKEVILLE DIVISION

IN RE:

WILLIAM D. STILTNER, D/B/A

TAYLOR HILL COAL CO. AND

HEARTHSIDE FUELS, INC. CASE NO. 91-70187

DEBTORS

ROSALEE THACKER AND

EDITH THACKER PLAINTIFFS

VS: MEMORANDUM OPINION ADV. NO. 92-7015

WILLIAM D. STILTNER, ET AL DEFENDANTS

This matter is before the Court upon the Complaint of the Plaintiff herein, Rosalee Thacker, seeking to recover from the Debtors and the Trustee an interest in property pursuant to an Agreement, which is essentially a land sale contract, with Debtors as sellers, and the Plaintiff as purchaser, dated May 1, 1985. Apparently, thereafter, and the testimony is conflicting on this point, the Plaintiffs left the property and the property was retaken by the Debtors and no foreclosure proceeding was ever commenced against the property. The son of the Debtors moved into the property and certain improvements to the property were made. This case was tried before the Court on August 11, 1993 after which time the parties were directed to file briefs. Subsequent to that time, the Court has entered an Order allowing Edith Thacker to join in the Complaint, she being the other heir of Clinard Thacker, deceased.

The substance of the Complaint by the Plaintiffs in this matter is that by virtue of Kentucky law, Sebastian v. Floyd, 585 S.W.2d 381 (1969), a foreclosure proceeding was required to be filed to adjudicate and liquidate the interests of the Plaintiffs in the property.

All of the events concerning execution of the original agreement, and repossession of the property occurred in 1985 and early 1986.

At trial of the matter, it was established that Rosalee Thacker, Plaintiff, and her deceased husband, Clinard Thacker, filed a bankruptcy proceeding on July 24, 1986. That proceeding was filed in the Pikeville Division of this Court and is proceeding number 86-00202. The record in this proceeding clearly establishes that any claims the Thackers had against the Stiltners for their claimed interest in the property existed at the time the Thackers filed their bankruptcy proceeding. A review of that file indicates that no mention of such claim was made in the proceeding and it was, consequently, not administered or abandoned by the Trustee in that proceeding. The Trustee in that proceeding was Susan Mullins Johnson.

The question before the Court concerns the interest, if any, that the Thackers retained in this claim which predated their bankruptcy proceeding. 11 U.S.C. '554(d) provides: "Unless the court orders otherwise, property of the estate that is not abandoned under this section and that is not administered in the case remains property of the estate." This plainly means that property such as the claim of the Thackers is still property of their bankruptcy estate, despite the fact that the estate has been closed. In re Benefield, 102 B.R. 157 (Bkrtcy E.D. Ark. 1989). Therefore, it is clear that the Plaintiffs have no present claim to ownership of any cause of action relating to the land sale contract with the Stiltners. The cause of action asserted herein must be pursued by the trustee as long as it remains property of the estate.

A separate Order will be entered in this proceeding.

Dated this ______ day of March, 1994.

BY THE COURT

_______________________________

JUDGE

COPIES TO:

Eddy Coleman, Esq.

Lawrence R. Webster, Esq.

U.S. Trustee

Lucinda Masterton Hall, Esq.

Susan Mullins Johnson, Esq.