Bookmark
PDF
Share
CaseIQ

Tangwall v. Wacker (In re Tangwall)

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ALASKA

Nov 4, 2014

Judgment

Subsequent
References

CaseIQ

JUDGE HERB ROSS

(Recalled)

In Chapter 7

MEMORANDUM FOR DISMISSAL OF COMPLAINT AGAINST LARRY COMPTON

Defendant trustee, Larry D. Compton, filed a motion to dismiss the complaint for failure to state a claim and because removal of a trustee should be pursued by motion, not an adversary complaint. No opposition has been filed. The court will grant the motion to dismiss on both grounds.

ECF No. 30.

A motion to remove a trustee must generally be based on some actual cause, although some cases consider the appearance of impropriety. In any event, it should have been pursued by a motion under FRBP 9014. Such a motion would have to at least flesh out the grounds on which removal is being sought.

3 Collier on Bankruptcy, ¶ 324.02[1], [2] (16^th ed. 2014).

The complaint states that Compton breached a fiduciary duty by failing to investigate the Wackers claim and because he "has shown himself to be prejudiced."

Complaint. ECF No. 1, ¶¶ 24 and 26.

The trustee's duty vis-a-vis the Wackers' claim is spelled out in 11 USC § 704(5): "if a purpose would be served, examine proofs of claims and object to the allowance of any claim that is improper." In a FRCP 12(b)(6) motion, the court can take judicial notice of certain facts. I will take judicial notice that:

Incorporated by FRBP 7012(b).

Daniels-Hall v. National Education Assoc., 629 F.3d 992, 998 (9^th Cir. 2010).

¦ no distribution has even been proposed at this time, and if one is never filed, the status of the Wackers' claim would be moot, so the debtor's challenge to Compton's performance of his duties is premature;
¦ if a distribution is proposed, the trustee can, at that time, file an objection to the Wackers' claim, if he chooses;
¦ the debtor has, himself, unsuccessfully challenged the Wackers' claim as spelled out in the court's memorandum for dismissal of debtor's complaint against the Wackers' claim on the grounds that the challenged Montana judgment on which the claim is based is entitled to full faith and credit; and,

¦ the debtor was himself unsuccessful in a prior claims objection to the Wackers' claim.

ECF Nos. 15 and 19.

Main case ECF No. 54 (September 16, 2013), Order Allowing Proof of Claim No. 3 as a Tardily Filed General Unsecured Claim.

The conclusionary statement that the trustee is "prejudiced" in not sufficient to state a plausible claim in this scenario. If the complaint does not state a plausible claim, it should be dismissed. The debtor's repetitive challenges to the Montana judgment on which the Wackers' claim is founded are beating a dead horse. The complaint against trustee Compton will be dismissed.

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).
--------

DATED: November 4, 2014

/s/ Herb Ross

HERB ROSS

U.S. Bankruptcy Judge
Serve
:
Donald Tangwall, for p
Erik LeRoy, Esq., for ?s Wacker and Boot Print Ranch
Larry D. Compton, ?
Cabot Christianson, Esq., for ?
Cheryl Rapp, Adv. Proc. Mgr.