Memorandum of Decision Re: Failure to File Written Opposition

DO NOT PUBLISH This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
In re JOHN S. EVERDING,                                                                     No. 92-12027      Debtor. ___________________________/
Memorandum of Decision
     Claimant Craig Campbell is a medical doctor who treated the debtor in relation to personal injuries suffered before the debtor filed his Chapter 7 petition. After the filing, the trustee compromised the debtor's lawsuit for the injuries and now holds about $7,000.00. The remainder of the $45,000.00 settlement was paid to the attorney who handled the case and to the debtor on account of his claim of exemption.      Campbell claims he is entitled to a lien on the proceeds for the full amount of his services, $5,141.00. The trustee, who evidently learned of this and other lien claims only after he had agreed to turn over most of the settlement proceeds to the debtor and his counsel, takes the position that Campbell is entitled only to a proration of his claim. The trustee has tendered $3,429.07, which Campbell has refused. Thus, the amount in dispute here is about $1,700.00.      On June 15, 1995, Campbell's motion for relief from the stay came before the court. Campbell sought leave to bring an action to enforce his lien. The court granted the motion, so long as the suit was commenced in this court.      When Campbell filed his motion for relief from the automatic stay, he also filed a motion to compel the trustee to abandon the proceeds of the settlement. The motion was noticed to be heard on June 30, 1995, and came before the court on that date. A full 28 days notice of the hearing was given to the trustee and all creditors.      When the court prepared for the June 30 calendar, it found no opposition to the motion filed by any party and therefore did not review the motion in detail. The trustee's law firm, which has been practicing in this court for over 30 years, appeared and announced for the first time that the trustee opposed the motion. Counsel admitted that no written opposition had been filed, notwithstanding Local Rule 7-914(c)(1) which requires, when 28 days notice of a hearing are given, that any opposition be filed at least 14 days before the hearing.      Because counsel for the trustee was experienced and should have known better, and because there was only a small amount of money at issue, the court treated the motion as unopposed and granted it. The trustee's motion for reconsideration is now before the court.      The present motion is based on a false statement. Counsel for the trustee says that he did not file opposition to the abandonment motion because at the June 15 hearing the abandonment motion "was discussed and summarily disposed of wherein the Court ruled that it would grant relief from the stay but it would not order abandonment of the lien proceeds." The court has listened to the tape (which was available to counsel for a nominal fee) of the June 15 hearing. The court made no ruling at all as to the abandonment motion, which was discussed only once, by Campbell's counsel, only to state that it had been filed.      The court does not like to dispose of disputes on procedural grounds instead of the merits. However, in this case counsel for the trustee is very experienced and should have known better than to ignore the local rule requiring a written objection to the motion. By so doing, he caused Campbell to incur additional attorney's fees and inconvenienced the court. Since the amount in dispute was not large, the court chose to treat the motion as unopposed rather than hold further hearings to fix the amount of sanctions. The court still feels that this was appropriate under the circumstances. The motion for reconsideration will accordingly be denied.      Because the basis for the motion for reconsideration was not true, in that the court had done nothing on June 15 which could have been construed as a "summary disposition" of the abandonment motion, the court orders counsel for the trustee to pay to Campbell the additional sum of $350.00 pursuant to FRBP 9011.      Counsel for Campbell shall submit an appropriate form of order.
Dated: August 29, 1995                                                                                                  _______________________                                                                                                                                                    Alan Jaroslovsky                                                                                                                                                    U.S. Bankruptcy