Menu    6 ABR 544  

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ALASKA



In re ) Case No. A-99-00917-DMD
) Chapter: 7
SHARON R. KELLY )
)
Debtor         ) Adv. Proc. A-99-00917-002
_______________________________________) [BanCap No. 99-3039]
)
LARRY D. COMPTON, Trustee, )
) Order Amending Decision
Plaintiff,         ) Upon Motion for New Trial
)
vs. )
)
SHARON R. KELLY; NORMAN KELLY; ROSA )
CLAYPOOL a/k/a Rosa Fink; KEVIN HINES; )
MIDTOWN EXECUTIVES. INC.; and S.R. )
KELLY PROFESSIONALS, INC., )
)
)
Defendants.         )
_______________________________________)



Plaintiff Larry D. Compton and defendant Midtown Executives, Inc. having filed a Joint Motion for New Trial.


It having been stipulated to by and between the plaintiff Larry D. Compton and defendant Midtown Executives, Inc., by and through their respective counsel of record, that the Memorandum Decision entered on September 15, 2000 be amended, and


It appearing that the stipulation ought to be approved.


Now, therefore, it is ordered that the Memorandum Decision entered herein on September 15, 2000, be, and the same hereby is, amended as follows:


Part I "Introduction" be deleted in its entirety and the following inserted:



This is an action to recover fraudulent transfers and preferences and for other relief The court has jurisdiction pursuant to 28 U.S.C. § 1334(b) and the district court's order of reference. It is a core proceeding under 28 U.S.C. § 157(b)(2)(F) and (H). The trustee will recover the sum of $11,615.48 from Norman Kelly and $38,057.37 from Midtown Executives, Inc. The March 19, 1992 Deed of Trust Note from Sharon R. Kelly to Rosa   TOP    6 ABR 545   Claypool and Deed of Trust recorded March 25, 1992, in Book 2252 at page 856 are unenforceable, and the interest, if any, legal or equitable, of Rosa Claypool in the real property described therein is extinguished. The complaint will be dismissed as to Kevin Hines and S.R. Kelly Professionals, Inc., with prejudice. The trustee's objection to discharge count will be dismissed without prejudice.


Part II "Statement of Uncontested Facts" be amended by adding the following:



1. Alva Rowland made payments on an obligation owed to Rosa S. Claypool in the aggregate amount of $12,615.30, which payments were deposited in the Rosa S. Kelly and Sharon R. Kelly joint Smith Barney Account.
 
2. No part of the $12,500 transferred from the Sharon Kelly d/b/a HW account to the Sharon Kelly dlb/a MEOS account was subsequently transferred to Midtown Executives, Inc.
 
3. Under Alaska law the limitations period for enforcing a deed of trust by foreclosure is the same as the limitations period for the underlying obligation secured by the deed of trust and the limitations period begins to run on the date the last payment is made on the underlying obligation. [Osbourne v. Buckman, 993 P.2d 409 (Alaska 1999)]
 
4. The applicable limitation period for enforcing the March 18, 1992 deed of trust note is six years. [Former AS § 09.10.050, repealed in 1997; Silvers v. Silvers, 999 P.2d 786, 790, n. 14 (Alaska 2000)].

Part III "Analysis" paragraph B be amended to reflect the following:



1. The net contributions to the Rosa S. Claypool and Sharon R. Kelly joint Smith Barney account were $15,892.69 and $15,419.54, respectively.
 
2. Neither party has rebutted the presumption that each co-owner of a joint account owns an one-half (1/2) interest in the account.
 
3. Rosa Claypool and Sharon Kelly each owned an one-half (1/2) interest in the joint Smith Barney account.
 
4. The trustee is entitled to recover from Midtown Executives, Inc. the sum of $14,895.00.
 
5. Enforcement of the March 18, 1992 deed of trust note and the deed of trust securing said obligation is barred by the applicable limitation period and the holder thereof, Rosa, has no interest, legal or equitable, in the real property described in the deed of trust.


  TOP    6 ABR 546  

Part III "Analysis" paragraph E be deleted in its entirety.


Part IV "Conclusion" be amended by deleting the fourth sentence thereof and inserting in its stead the following. "Enforcement of the deed of trust and underlying deed of trust is barred by the applicable statute of limitations and any interest of Rosa Claypool in the real property is extinguished. The estates claims against Kevin Hines and S.R. Kelly Professionals, Inc. will be dismissed with prejudice."


It is further ordered that an amended judgment be entered on the Memorandum Decision as amended.



    Dated: October 3, 2000
                  BY THE COURT
                  DONALD MacDONALD IV
                  United States Bankruptcy Judge