UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In the Matter of Chapter 7
Case No. 803-85912-478
MICHAEL BOYLE,
ORDER TO SHOW CAUSE
Debtor. TO HOLD DEBTOR IN
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UPON the annexed affirmation of Kenneth Kirschenbaum, dated January 15,
2004, and all prior proceedings, it is
ORDERED, that the debtor, Michael Boyle appear and show cause before
Bankruptcy Judge Dorothy Eisenberg, at the United States Bankruptcy Courthouse,
290 Federal Plaza, Room 760, Central Islip, New York, on the ____ day of January,
2004, at 10:00 a.m., or as soon thereafter as the parties can be heard, why an Order
should not be made and entered:
(a) pursuant to Bankruptcy Rules 9020 and 9014 finding the debtor to be in civil
contempt of court for failing to comply with this Court's order dated December 10, 2003,
(b) directing the United States Marshal to produce the debtor before the Court
during the Court's regular business hours;
(c) authorizing and directing the United States Marshal to take all necessary
steps to remove the debtor and other occupants and all of the debtor's property from
the Premises commonly known as 45 Frank Street, Valley Stream, New York;
(d) authorizing and directing the United States Marshal to incur any necessary
expense to remove the debtor and any other occupants and all of the debtor's exempt
property from the Premises, to secure said Premises, and to charge said expenses as a
claim against the Estate;
(e) fixing the monthly use and occupation expense which the debtor is required
to pay to the trustee, effective as of the date of filing through and including the date he
vacates or is removed from the premises, and applying the debtor's homestead
exemption if not otherwise paid;
(f) pursuant to 11 U.S.C Section 105(a), directing such action against the debtor
as may be necessary or appropriate to enforce or implement this Court's Order dated
December 10, 2003, so as to prevent an abuse of process by the debtor; and
(g) for such other and further relief as this Court deems just and proper, and it is
further
ORDERED, that service of this Order and the papers upon which it was granted
by first class mail upon Michael Boyle, at 45 Frank Street, Valley Stream, NY 11580,
the United States Marshal's Office, Long Island Federal Courthouse, 310 Federal
Plaza, Central Islip, New York 11722 and the United States Trustee, Long Island
Federal Courthouse, 560 Federal Plaza, Central Islip, New York 11722 on or before the
____ day of January 2004, shall be deemed good and sufficient service; and it is
further
ORDERED, that written opposition to the relief sought herein, if any, shall be
filed with the Clerk of the Bankruptcy Court, Long Island Federal Courthouse, 290
Federal Plaza, Central Islip, New York 11722 together with a copy marked for
Chambers, and served upon Kirschenbaum & Kirschenbaum, P.C., 200 Garden City
Plaza, Garden City, New York, 11530 so as to actually be received on or before
January , 2004.
Dated: Central Islip, New York
January , 2004
HONORABLE DOROTHY EISENBERG
UNITED STATES BANKRUPTCY JUDGE
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In the Matter of
Chapter 7
MICHAEL J. BOYLE, Case No. 803-85912-478
Debtor. AFFIRMATION
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Kenneth Kirschenbaum, an attorney duly admitted to practice before the courts
of the State of New York and before this Court, affirms the following to be true under
penalty of perjury:
1. I am the duly appointed and acting Trustee herein and a member of
KIRSCHENBAUM & KIRSCHENBAUM, P.C., I am fully familiar with the facts and
circumstances set forth in this affirmation.
2. This court issued an order dated December 10, 2003, directing the debtor to
file schedules by December 31, 2003 and to appear at his Bankruptcy Code Section
341(a) meeting of creditors on January 6, 2004. The order was duly served upon the
debtor as directed by the order and an affidavit of service filed with the Clerk of this
court.
3. The debtor has failed to comply with the order or any part thereof, and has
failed to provide any explanation as to why he has not complied with the order in any
respect.
4. The history of this matter and the background necessitating the application
for the December 10, 2003 order was fully presented in the affirmation of Steven
Sheinwald, dated November 11, 2003, which is on file with this Court.
5. The debtor, who has already enjoyed the benefits of this bankruptcy filing, in
addition to three previously dismissed petitions, has utterly failed to perform any
obligation on his part which he is required to perform, including complying with this
Court's order. Inasmuch as the debtor's conduct is an affront to this Court's order and
authority, and evinces the debtor's bad faith in filing his petition, it is appropriate that
the debtor be compelled to appear and explain himself to this Court so that this Court
can fashion appropriate relief, pursuant to 11 U.S.C. Section 105(a) necessary to carry
out the provisions of the Bankruptcy Code.
6. Although dismissal of this case for failing to file schedules and appear at the
first meeting is certainly one option, I do not believe that this debtor should be
rewarded in that way, an outcome that the debtor may have anticipated when filing.
Rather, this debtor appears to have real property which, if liquidated, will produce
substantial funds for the estate which will ultimately be distributed to the creditors.
However, the debtor's lack of cooperation has hampered administration of the estate.
Therefore, in addition to preserving the integrity of the bankruptcy process and
protecting the rights of the creditors, this debtor's failure to comply with this Court's
order and to show this Court the respect to which it is entitled, should not go
unpunished.
7. Based upon the debtor's actions since the filing of the petition, I have no
confidence that the debtor will cooperate with me in connection with the marketing and
sale of the real property. In fact I spoke to the real estate broker that I engaged to
market the property and she advised me that she has called the debtor numerous
times, at least ten telephone conversations, to schedule inspection of the property, and
the debtor has refused to cooperate. As such, I would request that the Court direct the
United States Marshal to take whatever steps are necessary to remove the debtor and
all of his exempt property from the premises and to secure the premises, thereby
allowing me and the real estate broker retained by me free access to market the
property.
8. Additionally, request is being made for the Court to fix the monthly use and
occupation expense which will have to be paid by the debtor, effective from the date of
the filing of the petition through the date he is removed from or vacates the premises.
As of the date of the filing of the petition the debtor was already behind 31 monthly
mortgage payments, and 4 more monthly payments have become due since that time.
Each monthly mortgage payment is $1,427.73. Given the debtor's failure to comply
with this Court's order, his failure to perform his obligations under the Bankruptcy
Code, his failure to provide cooperation in connection with the marketing of the
property, and the continuously eroding equity resulting from the debtor's failure to
tender the required monthly mortgage payments, the debtor should not be permitted to
continue to reside at the residence rent free. The creditors of the estate should not be
penalized because of the debtor's abuse of the bankruptcy process and lack of
cooperation. As such I am asking the Court to fix the monthly use and occupation to be
paid by the debtor effective upon the filing of the petition. To the extent that the debtor
does not pay the use and occupation fixed by the Court, request is hereby made to
deduct the amount not paid from the debtor's homestead exemption.
9. No prior application for the relief requested herein has been made to this
Court.
Dated: Garden City, New York
January 16, 2004
Kenneth Kirschenbaum (KK5082)