Grow Up Japan, Inc. v. Yoshida

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------X
In re
Ko Yoshida,
a/k/a Ko O. Yoshida,
Debtor.
-------------------------------------------------------X
Grow Up Japan, Inc.,
Plaintiff.
- against-
Ko Yoshida,
Defendant.
-------------------------------------------------------X
Chapter 13
Case No. 1-09-46070-jf
Adv. Pro. No. 1-09-01415-jf
DECISION AND ORDER GRANTING DEBTOR’S MOTION TO DISMISS
APPEARANCES:
Tristan C Loanzon
Loanzon Sheikh LLC
112 Madison Avenue, 5th Floor
New York, NY 10016
Attorney for the Plaintiff
Erica R Feynman
Rattet, Pasternak & Gordon Oliver, LLP
550 Mamaroneck Avenue
Harrison, NY 10528
Attorney for the Defendant
Jerome Feller
United States Bankruptcy Judge
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Grow Up Japan, Inc. (“GUJ”), commenced this Chapter 13 adversary proceeding against
Ko Yoshida (“Yoshida”), the Debtor/Defendant, seeking a determination that an amended
federal court judgment in the amount of $40,460.16 (“Judgment Debt”) is excepted from
discharge pursuant to 11 U.S.C. § 523(a)(4).1 Before the Court is Yoshida’s contested motion to
dismiss the adversary proceeding (“Motion To Dismiss”) pursuant to Fed. R. Bankr. P. 7012(b)
and Fed. R. Civ. P. 12(b)(6), for GUJ’s failure to state a claim upon which the requested relief
can 	be 	granted. 	Specifically, 	Yoshida 	maintains 	that 	the 	complaint 	fails 	to 	allege 	facts
constituting fraud or defalcation while acting in a fiduciary capacity.
Upon review of all the submissions and after hearing oral argument, the Court concludes
that the complaint should be dismissed. The complaint, even when read in a light most favorable
to GUJ, fails to plausibly establish a nondischargeable claim under § 523(a)(4). Accordingly,
Yoshida’s Motion To Dismiss is granted.
I.
In 2007, GUJ commenced a lawsuit in the United States District Court for Southern
District of New York against Yoshida, a former manager of its New York computer store,2 styled
Grow Up Japan Inc. v. Ko Computer Inc., & Ko Yoshida, 07 CV 3944 (S.D.N.Y.) (“District
Court Action”). The amended complaint in the District Court Action alleged that Yoshida
reported to GUJ, in 2004, that its New York store was experiencing financial difficulties. GUJ
further stated that on or about March 30, 2005, based on Yoshida’s reports; it closed the New
York store, terminated its lease at 431 Fifth Ave. and paid a penalty for early termination. After
closing the New York store, GUJ says that it discovered that Yoshida incorporated “Ko
1 11 U.S.C. § 1328(a)(2) makes § 523(a)(4) applicable to chapter 13 cases.
2 GUJ, a California corporation, conducted a computer store business as User’s Side, Inc., a New York Corporation,
at 431 Fifth Avenue in New York City.
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Computer” on or about February 2, 2004, and under that name opened a computer store on or
about April 15, 2005 at the same 431 Fifth Ave. location. 	GUJ charges Yoshida with assorted
misconduct, including allegations that, while employed as manager of GUJ’s New York
computer store, he engaged in competing business and usurped corporate opportunities. 	GUJ
sought judgment against Yoshida based upon separate claims sounding in fraud, conversion, an
accounting, breach of fiduciary duty, unfair competition, tortious interference and unjust
enrichment.
After extensive discovery, a 4-day jury trial began on January 12, 2009. Upon conclusion
of the trial, the only claim deemed worthy and sent to the jury for consideration was the breach
of fiduciary duty claim. In his charge to the jury, the district court judge instructed the panel to
consider the following:
Mr. Yoshida was the manager of User’s Side, the New York store
owned by Grow Up Japan. A manager has a duty to his employer
to act in good faith and in the employer’s best interests during the
period of his employment. 	In short, a manager is what we call a
fiduciary 	who 	owes 	his 	employer 	undivided 	and 	unqualified
loyalty and may not act in any manner contrary to the interests of
his employer. A person acting in a fiduciary capacity is required to
make truthful and complete disclosure to those whom the fiduciary
duty is owed and the fiduciary is forbidden to obtain an improper
advantage at the expense of his employer.
Declaration in Opposition, Exhibit A at 13 (ECF Docket Number 10). 	The jury returned a
verdict, on January 15, 2009, finding that Yoshida breached a fiduciary duty owed to GUJ under
the standards defined by the district court judge. Although, GUJ sought at least $400,000 in
compensatory damages, plus punitive damages, for breach of fiduciary duty, the jury awarded
compensatory damages of $24,460.16, limited to the penalty paid for early termination of the
431 Fifth Ave. lease. Punitive damages were denied. Subsequently, an amended judgment was
entered to include interest and costs in the sum of $40,607.61, as of April 7, 2009.
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On July 21, 2009, Yoshida filed a petition for relief under chapter 13 of the Bankruptcy
Code. 	GUJ filed a proof of claim as unsecured creditor based upon the Judgment Debt. 	On
November 2, 2009, GUJ commenced the instant adversary proceeding. The complaint filed is
skeletal in both length and content. Excluding the customary introductory paragraphs, the
complaint amounts to six brief paragraphs, which read as follows:
5. Debtor Yoshida owes GUJ a sum of $40,607.61 (“Judgment
Debt”) as of April 7, 2009. An amended judgment from the United
States District Court for the Southern District of New York is
attached as Exhibit A.
6. The Judgment Debt was assessed against Yoshida after a jury
trial before Judge Gerard E. Lynch in the United States District
Court held from January 12 through January 16, 2009 [sic]. A copy
of the judgment is attached as Exhibit B.
7. The Judgment Debt arose from Yoshida’s breach of fiduciary
[duty] owed to Plaintiff GUJ.
8. Specifically, GUJ brought suit against Yoshida in case styled
Grow Up Japan, Inc. v. Ko Yoshida, 07 CV 3944 (S.D.N.Y.),
alleging that Yoshida (while the manager of GUJ’s office in New
York) 	breached 	his 	fiduciary 	duties 	to 	GUJ 	by 	engaging 	in
competing business and usurping corporate opportunities of GUJ.
After a 4-day jury trial, the jury found that Yoshida breached his
fiduciary duty to GUJ.
9. Debtor Yoshida did not appeal the judgment.
10. An April 6, 2009 order from the Court shows that the only
allegation for which the jury found in favor of GUJ involved a
breach of fiduciary duty.
Complaint, at 2 (ECF Docket Number 1). In light of these recitations, the complaint concludes
that “Yoshida’s Judgment Debt to GUJ arises from ‘fraud or defalcation while acting in a
fiduciary capacity,’ within the meaning of 11 U.S.C. Section 523(a)(4) and therefore should be
excepted from discharge.” Id.
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In lieu of filing an answer, Yoshida filed the Motion To Dismiss. 	He argues that GUJ
wrongly assumes that the breach of fiduciary duty finding in the District Court Action and
resultant 	Judgment 	Debt 	alleged 	in 	the 	complaint 	warrant 	a 	determination 	of 	non-
dischargeability 	under 	§ 	523(a)(4). 	Yoshida 	contends 	that 	GUJ 	has 	not 	pleaded 	facts
establishing that he was a fiduciary for purposes of § 523(a)(4) and that GUJ also failed to allege
any facts to support a finding of fraud or defalcation. 	While the complaint employs the term
“fraud”, counsel for GUJ retracted and conceded at oral argument that his client is not alleging
fraud. Transcript, at 8-9, 13 (ECF Document Number 14). 	Accordingly, we only address
whether GUJ stated a claim of defalcation while acting in a fiduciary capacity.
II.
Fed. R. Civ. P. 12(b)(6), made applicable to this adversary proceeding by Fed. R. Civ. P.
7012(b), provides for dismissal of a lawsuit for “failure to state a claim upon which relief can be
granted.”3 The court’s task in reviewing a dismissal motion under Rule 12(b)(6) is “necessarily a
limited one.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A plaintiff is required only to allege,
not prove, sufficient facts establishing a claim to survive a motion to dismiss. 	The role of the
court is merely to assess the legal sufficiency of the complaint and not to assess the weight of
evidence which might be offered in support of the complaint. 	Koppel v. 4987 Corp., 167 F.3d
125, 133 (2d Cir. 1999); 	see Ryder Energy Distribution Corp. v. Merrill Lynch Commodities,
Inc., 748 F.2d 774, 779 (2d Cir. 1984); Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). In
so doing, the court must accept as true all well-pleaded factual allegations and draw all
reasonable inferences in favor of the plaintiff. See Ashcroft v. Iqbal, − U.S. − , 129 S. Ct. 1937,
3 All references, hereinafter, to a “Rule” refer to the Federal Rules of Civil Procedure.
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1949-50 (2009); Scheuer, 416 U.S. at 236; Acito v. IMCERA Group, Inc., 47 F.3d 47, 51 (2d Cir.
1995); Allen v. Westpoint Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).
A complaint will be deemed sufficient if it satisfies the general notice pleading
requirements set forth in Rule 8(a)(2). Rule 8(a)(2) calls for “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see City of Clinton v.
Pilgrim's Pride Corp., 653 F. Supp. 2d 669, 671 (N.D. Tex. 2009); In re Bunker Exploration
Co., 42 B.R. 297, 300 (Bankr. W.D. Okl. 1984).
While pleadings are to be liberally construed in favor of the plaintiff, the deference
accorded to a plaintiff is not without limitation. A defendant is entitled to fair notice of a
plaintiff's claim and the grounds upon which it rests so as to prepare an appropriate defense.
Erickson v. Pardus, 551 U.S. 89, 93 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
n.3 (2007); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). Thus, in
drafting a complaint, a plaintiff’s obligation to set forth the grounds for entitlement to relief
requires more than mere labels, conclusions, or some overly generalized statement that a plaintiff
has a claim against the defendant. Iqbal, 129 S. Ct. at 1949. Naked assertions devoid of factual
enhancements will not suffice. Id. “Factual allegations must be enough to raise a right to relief
above the speculative level,” and create a plausible entitlement for such relief. Twombly, 550
U.S. at 555; Iqbal, 129 S. Ct. at 1949-50. In sum, to survive a motion to dismiss, a complaint
must assert a cognizable legal theory and enough factual averments with respect to the
underlying elements of the claim that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Iqbal, 129 S. Ct. at 1950 (“where the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged -- but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’”).
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III.
A primary purpose of the bankruptcy law is to grant a fresh start from the weight of
oppressive indebtedness to the honest but unfortunate debtor. Grogan v. Garner, 498 U.S. 279,
286-87 (1991); Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934). 	A chapter 13 debtor is
granted a discharge of most pre-petition debt upon completion of all plan payments. See 11
U.S.C. § 1328. Prior to the enactment of the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005, Pub.L. 109-8, 119 Stat. 23 (“BAPCPA”), a chapter 13 debtor received
what was termed a “super discharge.” Upon completion of a chapter 13 plan, a debtor would be
granted a discharge of all debts excepted from discharge in a chapter 7 case pursuant to § 523(a).
Congress largely eliminated the super discharge under BAPCPA by amending § 1328 to provide
that any debt “of the kind specified . . . in paragraph (1) (B), (1)(C), (2), (3), (4), (5), (8), or (9) of
section 523(a)” would no longer be discharged in chapter 13. 11 U.S.C. § 1328(a)(2). Thus, the
§ 523(a)(4) exception to dischargeability is now applicable to Chapter 13 cases.
The enumerated exceptions to discharge under § 523(a) advances the public policy of
denying relief from debts resulting from undesirable behavior and furthers certain other social
policy interests. See The Andy Warhol Foundation for Visual Arts, Inc. v. Hayes (In re Hayes),
183 F.3d 162, 167 (2d. Cir. 1999); Cazenovia College v. Renshaw (In re Renshaw), 222 F.3d 82,
86 (2d Cir. N.Y. 2000) (“[T]here are circumstances where giving a debtor a fresh start in life is
not the paramount concern and protection of the creditor becomes more important.”). However,
to obtain a determination of non-dischargeability, a creditor must show that his claim comes
squarely within an exception enumerated in § 523(a). 	Kawaauhau v. Geiger, 523 U.S. 57, 62,
(1998) (observing that “exceptions to discharge ‘should be confined to those plainly expressed’”)
(quoting Gleason v. Thaw, 236 U.S. 558, 562 (1915)); McCrory v. Spigel (In re Spigel), 260 F.3d
27, 32 (1st Cir. 2001). 	A narrow and strict construction of the exceptions to discharge against
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the creditor and in favor of the debtor is necessary to implement the Bankruptcy Code’s purpose
of giving a debtor a new beginning. See Union Fire Ins. Co. of Pittsburgh, Pa. v. Bonnanzio (In
re Bonnanzio), 91 F. 3d 296, 300 (2d Cir. 1996); Caspers v. Van Horne (In re Van Horne), 823
F.2d 1285, 1287 (8th Cir. 1987); Cross v. Murphy & Robinson Inv. Cy. (In re Cross), 666 F.2d
873, 879-80 (5th Cir. 1982).
Insofar as here relevant, to be excepted from discharge under § 523(a)(4), GUJ’s claim
must have arisen from a “defalcation while acting in a fiduciary capacity”. 	A finding of non-
dischargeability under this provision requires a showing of (i) the existence of a fiduciary
relationship between the debtor and the objecting creditor, and (ii) a defalcation committed by
the debtor in the course of that relationship. See Antlers Roof-Truss and Builders Supply v. Storie
(In re Storie), 216 B.R. 283, 286 (B.A.P. 10th Cir. 1997); Freer v. Beetler (In re Beetler), 368
B.R. 720, 725 (Bankr. C.D. Ill. 2007). It follows that the issue posed by the Motion To Dismiss
is whether GUJ’s complaint contains sufficient allegations, either direct or inferential, to
plausibly support the conclusion that Yoshida committed a defalcation while acting in a fiduciary
capacity within the meaning of § 523(a)(4). 	Accordingly, we will separately examine the
“fiduciary” and “defalcation” elements of § 523(a)(4).
IV.
Yoshida was an employee/manager of GUJ’s computer store in New York City. As such,
in the District Court Action, Yoshida was considered a fiduciary of GUJ. The complaint in this
dischargeability adversary proceeding alleges Yoshida’s manager status and GUJ argues that in
light of the fiduciary status found to exist in the District Court Action, Yoshida should be
considered a fiduciary for purposes of § 523(a)(4). GUJ is mistaken.
Section 523(a)(4) does not define the term “fiduciary”. Nonetheless, it is well established
that the fiduciary concept incorporated in § 523(a)(4) and its predecessor statutes is a narrow
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one, generally involving express trusts, technical trusts or statutorily imposed trusts; it does not
extend to resultant trusts imposed by operation of law or equity. Davis v. Aetna Acceptance Co.,
293 U.S. 328, 333 (1934); Upshur v. Brisco, 138 U.S. 365, 375-76 (1891); Chapman v. Forsyth,
43 U.S. (How.) 202, 207 (1844); Commonwealth Land Title Co. v. Blaszak (In re Blaszak), 397
F.3d 386, 391 (6th Cir. 2005); Tudor Oaks Ltd. Partnership v. Cochrane (In re Cochran), 124
F.3d 978, 983 (8th Cir. 1997); LSP Investment Partnership v. Bennet (In re Bennet), 989 F.2d
779, 784 (5th 1993); Teichman v. Teichman (In re Teichman), 774 F.2d 875, 878 (9th Cir. 1985);
Evans v. Pollard (In re Evans), 161 B.R. 474, 477-78 (B.A.P. 9 th Cir. 1993); Zohlman v. Zoldan,
226, B.R. 767, 772 (S.D.N.Y. 1998) (Under § 523(a)(4), “[c]onstructive or implied trusts, or any
trust where the existence of the trust is created merely on the basis of wrongful conduct (a trust
ex maleficio) do not create a fiduciary relationship.”); but see In re Hayes, 183 F.2d at 169
(“[N]either Chapman nor Davis casts serious doubt on the fact that certain relationships not
constituting actual trusts are within the” § 523(a)(4) exception to discharge.); Artis v. West (In re
West), 339 B.R. 557, 566 (Bankr. E.D.N.Y. 2006) (“Nevertheless, the fiduciary connection
arising from a technical or express trust does not exhaust the universe of fiduciary relationships
that fall within the ambit of § 523(a)(4)”).
A debt is not created by a person while acting in a “fiduciary capacity” in the popular
sense of the term, merely because it is created under circumstances in which trust or confidence
is reposed in the debtor. 	The broad general definition of fiduciary, i.e., relationships involving
confidence, trust and good faith, are excluded from the reach of § 523(a)(4). Cal Micro, Inc. v.
Cantrell (In re Cantrell), 329 F.3d 1119, 1125 (9th Cir. 2003); Farina v. Balzano (In re Balzano),
127 B.R. 524, 532 (Bankr. E.D.N.Y. 1991). While state law can be consulted, whether a debtor
was acting in a fiduciary capacity is a matter of federal law. See In re Hayes, 183 F.3d 162, 166-
67; Ragsdale v. Haller, 780 F.3d 794, 796 (9th Cir. 1986); Carlisle Cashway, Inc. v. Johnson (In
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re Johnson), 691 F.2d 249, 251 (6th Cir. 1982); Angelle v. Reed (In re Angelle), 610 F.2d 1335,
1341 (5th Cir. 1980); Prudential-Bache Securities v. Sawyer (In re Sawyer), 112 B.R. 386, 389
(D. Colo. 1990); Schwalbe v. Gans (In re Gans), 75 B.R. 474, 489 (Bankr. S.D.N.Y. 1987).
The instructions to the jury by the district court judge in the District Court Action
described the fiduciary relationship applicable in that litigation as a general one of trust,
confidence 	and 	good 	faith, 	presumably 	under 	state 	or 	common 	law, 	between 	an
employee/manager and employer. 	Thus, the focus of the jury verdict and the Judgment Debt
based upon that verdict was Yoshida’s breach of a duty of loyalty to GUJ as employee/manager
of its computer store. 	The critical question is whether this is the type of fiduciary relationship
contemplated by § 523(a)(4).
The only fact alleged by GUJ in its complaint to support the claim of a fiduciary
relationship is Yoshida’s employee/manager status. However, an employment relationship alone
does not give rise to a fiduciary relationship for purposes of § 523(a)(4). See E.L. Hamm &
Assoc. v. Sparrow (In re Sparrow), 306 B.R. 812, 832 (Bankr. E.D. Va. 2003); Adams v. Scheller
(In re Scheller), 265 B.R. 39, 52 (Bankr. S.D.N.Y. 2001); Solar Systems and Peripherals, Inc. v.
Burress (In re Burress), 245 B.R. 811, 877-78 (Bankr. D. Colo. 2000); Landrin v. Community
Mutual Sav. Bank (In re Landrin), 173 B.R. 307, 311 (Bankr. S.D.N.Y. 1994); BPS Guard Servs.
v. Myrick (In re Myrick), 172 B.R. 633, 636-37 (Bankr. D. Neb. 1994). Nor does the elevation of
an employee to a managerial position bring into being a fiduciary relationship within the purview
of § 523(a)(4). 	See Novartis Corp. v. Luppino (In re Luppino), 221 B.R. 693, 698-99 (holding
that management level employee responsible for evaluating contractor bids and against whom a
state court judgment was obtained for breach of fiduciary duty of loyalty and commercial bribery
was not acting in a fiduciary capacity within meaning of § 523(a)(4)); Colonial-Interstate, Inc. v.
Ayers (In re Ayers), 83 B.R. 83, 88 (Bankr. M.D. Ga. 1988) (holding that defendant, a former
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manager of plaintiff was merely an agent or factor of plaintiff and did not assume a fiduciary
capacity sufficient to render his debt nondischargeable); DL & B Oil Co. v. Dawson (In re
Dawson), 16 B.R. 343, 346 (Bankr. N.D. Ill. 1982) (Operator of gasoline service station, even
though a “trusted agent” of the owner, is not a fiduciary in the strict and narrow sense used in the
Bankruptcy Code.); Mullis v. Walker (In re Walker), 7 B.R. 563, 564 (Bankr. M.D. Ga. 1980)
(Under § 523(a)(4), “[a] service station manager, even though he has the responsibility of
collecting proceeds of sales from the station, accounting therefor and depositing cash amounts
thereof, is not a fiduciary.”).
To satisfy the “fiduciary” pleading requirement, GUJ must establish that Yoshida was a
fiduciary within the meaning of § 523(a)(4). Because the complaint fails to plead the existence
of an express, technical or statutory trust, or any other cognizable fiduciary connection, the
complaint fails to plead a fiduciary relationship under § 523(a)(4).
V.
As indicated above, there is a two step process in determining whether a debt falls within
§ 523(a)(4), “defalcation while acting in a fiduciary capacity”, exception to discharge. The first
step is to establish a fiduciary relationship. 	As we have shown, GUJ has failed to plead the
requisite fiduciary relationship required by § 523(a)(4). 	The second step is to ascertain if
defalcation occurred during that relationship. 	GUJ also failed to adequately plead defalcation.
Without any underlying factual allegations whatsoever, the complaint declares:
As a result of these actions, Yoshida’s Judgment Debt to GUJ
arises from ‘… defalcation while acting in fiduciary capacity,’
within the meaning of 11 U.S.C. Section 523(a)(4) and therefore
should be excepted from discharge.
A pleader must allege some particular facts upon which his claim is based. 	A pleader does not
satisfy Rule 8(a) merely by parroting the statutory language of § 523(a)(4). 	See United States ex
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rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 240 (1 st Cir.), cert denied, 543 U.S. 820
(2004).
While some circuits have held than an innocent mistake or negligence can constitute
defalcation and other circuits require a level of fault greater than mere negligence, the Second
Circuit, in Denton v. Hyman (In re Hyman), 502 F.3d 61 (2d Cir. 2007), aligning itself with the
First Circuit, held that defalcation, under § 523(a)(4) “requires a showing of conscious
misbehavior or extreme recklessness – a showing akin to the showing required for scienter in the
securities law context.” Hyman, 502 F.3d at 68 (citing Rutanen v. Baylis (In re Baylis), 313 F.3d
9, 20 (1st Cir. 2002). This standard has been summarized by the Second Circuit as follows:
The scienter needed in connection with securities fraud is intent to
deceive, manipulate, or defraud, or knowing misconduct. 	As 	a
pleading requirement, a plaintiff must either (a) allege facts to
show that defendants had both motive and opportunity to commit
fraud or (b) allege facts that constitute strong circumstantial
evidence or conscious misbehavior or recklessness.
Press v. Chemical Inv. Servs. Corp., 166 F.3d 529, 538 (2d Cir. 1999) (citations and internal
quotations omitted).
The Judgment Debt in the District Court Action was based solely upon Yoshida’s
conduct relating to the early termination of GUJ’s lease. 	To satisfy the “defalcation” pleading
requirement, GUJ must establish that Yoshida committed defalcation in connection with the
lease termination. We find that GUJ makes no such allegation.
VI.
For all of the foregoing reasons, this Court determines that GUJ’s complaint fails to
allege supportive facts to plausibly suggest that there was a fiduciary relationship between GUJ
and Yoshida and that Yoshida committed a defalcation within the meaning of § 523(a)(4). Nor
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has GUJ made any showing that it would be able to amend its complaint in a manner that would
survive dismissal.
Based thereon, it is hereby
ORDERED, as follows:
1. 	Yoshida’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), made applicable
hereto by Fed. R. Bankr. P. 7012(b), is granted; and
2. 	The Judgment Debt obtained by GUJ in the District Court Action is not excepted
from discharge.
Dated: Brooklyn, New York
August 23, 2010
s/Jerome Feller
Jerome Feller
United States Bankruptcy Judge
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