IN RE: Wright, Ivis CASE NO. 94-50971
UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
IN RE: Wright, Ivis
CASE NO. 94-50971
This case was heard by the court on May 8, 1996 on motions of the debtor, Morgan & Son Dairy, a partnership, by counsel, for an order staying pending appeal the order of the court entered on April 25, 1996 granting Ernest barker relief from stay and permitting him to enforce his security interest in 19 head of Holstein cows and all offspring, products, increase or additions thereto, together with the proceeds thereof.
The debtor has also moved the court to compel Ernest Barker to return the cattle which he repossessed pursuant to the order of April 25, 996, alleging Barker violated the automatic stay in repossessing said livestock before the time to appeal from the order of April 25, 1996 had expired.
The court determined that both motions should be and hereby are overruled.
The security agreement dated March 2, 1994 by which Ernest Barker sold and retained a security interest in the 19 Holstein cows shows the cows were sold by Mr. Barker to Gerald Morgan and Randy Morgan individually and not to the debtor Morgan & Son Dairy. The security interest of Mr. Barker in the cows was perfected by filing a financing statement on March 8, 1994 in the office of the Fleming County Court Clerk as file no. 94-518. The debtor had possession of the cows and was milking them at its dairy facility and selling the milk, by the debtor partnership entity has no ownership interest in the cows. There is no evidence that the debtor partnership or the Morgans individually made any of the payments of $491.34 per month provided for by the security agreement. The original sales price was $23,125.00. The indebtedness to Ernest Barker is listed in the schedules as $28,000.00. In any event, this is not a debt of the partnership and the cows are not property of the partnership.
The ten-day stay against enforcement of judgments provided for by Rule 62(a) of the Federal Rules of Civil Procedure, as made applicable by Rule 7062 of the Federal Rules of Bankruptcy Procedure, does not apply to orders granting relief from stay. Rule 7062, Federal Rules of Bankruptcy Procedure.
The debtor is not entitled to a stay of the order granting relief from stay pending appeal because the debtor had only a possessory interest and has no ownership interest in the Holstein cows released to Ernest Baker.
By the court -
Joe Lee, Chief Judge
Richard J. Getty, Esq.
Jerry D. Truitt, Esq.
Michael Baker, Esq.