Greene et al v. Ferraro

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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
KENNETH C. GREENE and
BARBARA J. GREENE,
Debtors.
KENNETH C. GREENE and
BARBARA J. GREENE,
Plaintiffs,
vs.
LORETTA FERRARO,
Defendant.
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Case No. 98-13553
Chapter 7
Adv. Proc. No. 11-1063
MEMORANDUM RE PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
On May 2, 2011, the court held a hearing on the motion for
temporary restraining order filed by Kenneth C. Greene and Barbara
J. Greene (collectively the Greenes). 	Kenneth C. Greene appeared
in pro per for the Greenes. 	Iain A. Macdonald appeared for Loretta
Ferraro (Ferraro). 	Upon due consideration, for the reasons stated
below, and for the reasons stated on the record at the hearing, the
court denies the motion for temporary restraining order.
(1) The motion for temporary restraining order is denied,
because the Greenes have not established that Ferraro asserts a
-1-	MEMORANDUM RE MOTION FOR TRO
Signed and Filed: May 04, 2011
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
May 04, 2011
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 11-01063 Doc# 24 Filed: 05/04/11 Entered: 05/04/11 16:02:38 Page 1 of 3

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pre-petition claim against the Greenes in Marin County Superior
Court Case No. CIV-095990 (the State Court Action).
(2) The Greenes’ sworn Schedule A (Real Property) 1 and the
April 26, 1998 agreement between the Greenes and Ferraro establish
that, on the September 22, 1998 petition date, the Greenes held a
twenty percent tenancy-in-common interest in the real property
commonly known as 91 Corte Del Bayo, Larkspur, California (the
Property) and Ferraro and her partner, Bonnie Wagstaff, 2 held the
remaining eighty percent interest in the Property. 	Only the
Greenes’ twenty percent interest in the Property became property of
their bankruptcy estate. 	11 U.S.C. § 541(a)(1); In re Keefe, 2010
WL 1417796 (Bankr. E.D. Va. 2010). 	There is no evidence that title
to the Property changed before or after the Greenes filed their
bankruptcy petition. 3 	For example, there is no evidence that the
Greenes’ sworn Schedule A was in error, that the estate purchased
Ferraro’s interest in the Property, or that the trustee sold
Ferraro’s interest in the Property.
(3) The Greenes have not established that Ferraro is asserting
any claim in the State Court Action other than a claim for harm to
Ferraro’s ownership interest in the Property based upon the
Greenes’ post-petition conduct. 	The discharge injunction does not
bar a claim against a debtor that is based on post-petition
1 Schedule A, which the Greenes filed in their 1998 bankruptcy
case (Case No. 98-13553), is attached as Exhibit D to the adversary
proceeding complaint.
2 Ms. Wagstaff is now deceased. 	There is no evidence in the
record regarding what happened to her ownership interest in the
Property.
3 Although the Greenes contend that Ferraro no longer held
title to the Property at the time the Greenes filed their
bankruptcy petition, and that Ferraro is no longer on title, there
is no evidence before this court that this is so.
-2-	MEMORANDUM RE MOTION FOR TRO
Case: 11-01063 Doc# 24 Filed: 05/04/11 Entered: 05/04/11 16:02:38 Page 2 of 3

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conduct; 4 nor did the discharge or any other aspect of the Greenes’
prior bankruptcy case vitiate any ownership interest Defendants had
in the Property. 5
(4) If she wishes to do so, the Judge presiding over the State
Court Action is invited to call the above-signed Judge at 415-268-
2360 regarding this order.
**END OF MEMORANDUM**
4 11 U.S.C. § 541(a)(3).
5 The discharge injunction would, however, bar any in personam
claim by Ferraro against the Greenes, such as a claim for fraud in
the inducement in the execution of the 1998 contract, unless
Ferraro were to establish in a proceeding before this court that
such claim were excepted from the Greenes’ discharge.
-3-	MEMORANDUM RE MOTION FOR TRO
Case: 11-01063 Doc# 24 Filed: 05/04/11 Entered: 05/04/11 16:02:38 Page 3 of 3