1 ABR 152

1 ABR 152

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ALASKA

In re: Case No. J90-00306	)
	)
ROBERT L. HORCHOVER, d/b/a	)
Alaska Sea Adventures,	)
	)
Debtor.	)
___________________________________________	)
ALASKA PACIFIC CAPITAL COMPANY,	)	Adversary No. J90-00306-001
	)	Chapter 11
Plaintiff,	)
	)
v.	)
ROBERT L. HORCHOVER, d/b/a	)
Alaska Sea Adventures,	)
	)
Defendant.	)
___________________________________________	)

ORDER DISMISSING COMPLAINT AND MOTION FOR RELIEF FROM STAY

Alaska Pacific Capital Company has filed an adversary proceeding seeking dismissal of the chapter 11 petition of the debtor Robert L. Horchover. Within this adversary proceeding, Alaska Pacific Capital Company has also moved to terminate the stay.

Bankruptcy Rule 7001 provides what actions are and are not to be considered adversary proceedings. An action for dismissal for bad faith filing is not an action for "injunction or other equitable relief."

"Other equitable relief" as used in Rule 7001(7) should include relief, other than injunctions, traditionally granted only by courts of equity. Accountings and specific performance immediately come to mind. Proceedings to obtain equitable subordination of 1 ABR 153 allowed claims or interests are also adversary proceedings, but these are covered by clause (8) of Rule 7001. (footnotes omitted)

9 Collier on Bankruptcy, 15th ed., paragraph 7001.10, p. 7001-23. Dismissal for bad faith filing has not been considered as an equitable proceeding by any bankruptcy court that I can find. Although Landmark Capital Company, 12 B.C.D. 594 (9th Cir. 1984) was an adversary proceeding, the facts giving rise to that decision arose in 1981 prior to the adoption of Rule 7001 in August of 1983. Moreover, Landmark was never really concerned with the differences between contested matters and adversarial proceedings. That issue was not before the court. We can only speculate as to why the dismissal was not treated as a contested matter. Other cases indicate that actions to convert or dismiss, under the old Rules, could only be brought as contested matters. In re Eli Wittle, 16 B.R. 197 (Bankr. Fla. 1981); Matter of Williams, 15 B.R. 655 (D.C. Mo. 1981), aff'd. 696 F.2d 999.^(1.)

The motion for relief from stay cannot be filed in an adversary action. Rule 4001(a)(1) provides:

(a) Relief from Stay.
(1) Motion. A motion for relief from an automatic stay provided by the Code shall be made in accordance with Rule 9014.

1 ABR 154 I note that the attorney for the defendant requests an award of costs and attorneys fees' for dismissal of the adversary action. None will be awarded. The defendant could easily have pointed out the procedural defects in the plaintiff's pleading at an early stage of the proceeding. Instead he waited, taking full advantage of the automatic stay. Secondly, all of the issues that have been addressed in this action apply to the motion to dismiss of the U.S. Trustee and Pacific Capital Company which will be heard on September 18, 1990 at 1:00 p.m. Finally, there is no authority for an award of attorneys' fees absent extreme and outrageous conduct. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612 (1975).

Therefore, (1) the plaintiff's complaint is dismissed without prejudice, each party to bear their own costs; (2) the plaintiff's motion for relief from stay is dismissed without prejudice; and (3) the defendant's request for an award of attorney's fees and costs is denied.

DATED: September 6, 1990.

Serve:	D. Bruce, Esq.
	L. Domke, Esq.
	B. Franklin, Esq.

N O T E S:

1 ABR 153 1. I have searched exhaustively for case authority dealing with the issue. I can find none that is squarely on point. If the plaintiff has any additional authority, the court will welcome it in a motion for reconsideration.