Beverly Byrd and Ralph T. Byrd

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MARYLAND
at GREENBELT
In re: 	*
*
Ralph T. Byrd 	*
Beverly Byrd 	* 	Case No. 	04-35620-TJC
* 	(Substantively consolidated with
* 	01-25006-TJC)
*
Debtors 	* 	(Chapter 7)
*
*
*
* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	*
MEMORANDUM OF DECISION GRANTING THE MOTION OF CHAPTER 7
TRUSTEE TO AUTHORIZE THE REMOVAL OF PERSONS AND PROPERTY
FROM 4901 SUNDOWN ROAD, LAYTONSVILLE, MD
Before the Court is the Motion of the Chapter 7 Trustee to Authorize the Removal
of Persons and Property from 4901 Sundown Road, Laytonsville, MD (the “Motion”),
Docket No. 402, filed by Gregory P. Johnson, Chapter 7 Trustee, on September 18, 2006.
On October 5, 2006, the Debtors, Ralph T. Byrd, and Beverly Byrd, filed the Opposition
to the Motion of the Chapter 7 Trustee to Authorize the Removal of Persons and Property
from 4901 Sundown Road, Laytonsville, MD (“the Opposition”). Docket No. 418. 	In
the Motion, the Chapter 7 Trustee seeks to have the Debtors and their belongings
removed from their residence at 4901 Sundown Road, Laytonsville, MD (the “Property”)
Date signed December 11, 2006
Entered: December 11, 2006 Case 04-35620 Doc 480 Filed 12/11/06 Page 1 of 21

2
in order to clean and prepare it for sale, and market and sell it. The Debtors object,
arguing that removing them from their home will cause great disruption in their lives.
The Court held a hearing on the Motion on December 1, 2006. At the hearing, the
Chapter 7 Trustee testified at length about the condition of the Property and his need for
an order removing the Debtors and their belongings from the Property. The Debtors did
not testify or produce any evidence, and instead relied solely on the cross-examination of
the Chapter 7 Trustee and the arguments of Mr. Byrd. For the reasons set forth herein,
the Court will grant the Motion.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334, 157(a),
and Local Rule 402 of the United States District Court for the District of Maryland. This
is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). The following constitutes the
Court’s findings of fact and conclusions of law.
I. 	FINDINGS OF FACT
A. 	PROCEDURAL HISTORY
On December 14, 2001, Platinum Financial Services, a creditor, filed an
involuntary bankruptcy petition against Ralph T. Byrd ("Mr. Byrd") initiating case No.
01-25006. On July 17, 2002, the Court entered an order for relief on the involuntary
petition. On July 18, 2002, Roger Schlossberg was appointed the Chapter 7 Trustee (the
"First Chapter 7 Trustee"). On January 24, 2003, the District Court reversed the entry of
the order for relief. Thereafter, this Court entered an Order Staying All Matters and
Continuing All Hearings on April 15, 2003. On February 11, 2004, the United States
Court of Appeals for the Fourth Circuit reversed and remanded the District Court’s
decision reversing the entry of the Order for Relief.
Case 04-35620 Doc 480 Filed 12/11/06 Page 2 of 21

3
On Mr. Byrd's motion, on June 25, 2004, the Court entered an order converting
Ralph T. Byrd's case to a case under Chapter 11. On July 14, 2004, the Court entered an
Order Requiring The Appointment of a Chapter 11 Trustee, and Gregory P. Johnson was
subsequently appointed the Chapter 11 Trustee (the "Chapter 11 Trustee").
On November 11, 2004, Beverly S. Byrd ("Ms. Byrd") filed a petition under
Chapter 13 of the Bankruptcy Code initiating case No. 04-35620. 	Shortly thereafter, the
Chapter 11 Trustee filed a motion to substantively consolidate Mr. and Ms. Byrd's
bankruptcy proceedings. With the consent of Mr. and Mrs. Byrd, the Court granted the
consolidation request on January 13, 2005.
While proceeding under Chapter 13, the Debtors proposed an amended Chapter
13 plan wherein they proposed to pay $2850.00 per month for the first ten months of the
plan, then $3500.00 per month for the next twelve months, then $6052.00 per month for
38 months for a total term of sixty months. Docket No. 129 at p.1. On January 30, 2006,
after an extensive confirmation hearing, the Court entered an order denying confirmation
of the Chapter 13 plan without leave to amend.
Subsequently, on March 20, 2006, the consolidated Chapter 13 case was
converted to a case under Chapter 7. On April 3, 2006, Gregory P. Johnson was
appointed as Chapter 7 Trustee (the "Second Chapter 7 Trustee" or the “Trustee”).
B. 	THE TRUSTEES’ EFFORTS TO SELL THE PROPERTY
1. 	Efforts to sell the Property by the First Chapter 7 Trustee.
After the order for relief was entered on July 17, 2002 in Mr. Byrd's case, the First
Chapter 7 Trustee attempted to gain access to the Property. On September 13, 2002, the
First Chapter 7 Trustee filed a Motion to Authorize Trustee to Inspect and Secure Assets.
Case 04-35620 Doc 480 Filed 12/11/06 Page 3 of 21

4
In that motion, the First Chapter 7 Trustee requested, among other things, that he and a
real estate broker be granted access to the Property in order to value, inspect, show, and
market the Property. On December 18, 2002, the Court entered the Order Granting
Trustee’s Motion to Authorize Trustee to Inspect and Secure Assets. On January 16,
2003, the First Chapter 7 Trustee filed Trustee's Emergency Motion for Entry of an Order
for Writ of Assistance from the U.S. Marshal and Holding Debtor in Civil Contempt for
Failure to Comply with Order Granting Trustee's Motion to Authorize Trustee to Inspect
and Secure Assets. On April 10, 2003, the First Chapter 7 Trustee filed Trustee's
Supplemental Motion for Entry of an Order Holding Debtor in Contempt (the
"Supplemental Motion"). 	Prior to a ruling on these motions, the Court entered an order
staying all matters and hearings in the bankruptcy case on April 15, 2003.
On April 22, 2004, the Court entered an order allowing the bankruptcy case to go
forward. Subsequently, the Court held a hearing on the First Chapter 7 Trustee's
Supplemental Motion on June 23, 2004, and on June 24, 2004, entered the Order
Compelling Ralph T. Byrd to file Schedules and a Statement of Financial Affairs, to
Appear at Meeting of Creditors, to Provide Access to the Trustee and Granting Other
Appropriate Relief including the grant to the First Chapter 7 Trustee of full and
unfettered, immediate access during regular business hours to the Property. On the next
day, Mr. Byrd filed a motion to convert his Chapter 7 case to a case under Chapter 11 of
the Bankruptcy Code, thereby halting the efforts of the First Chapter 7 Trustee to sell the
Property.
Case 04-35620 Doc 480 Filed 12/11/06 Page 4 of 21

5
2. 	Efforts to sell the Property by the Chapter 11 Trustee.
The Chapter 11 Trustee filed multiple motions to gain access to the Property for
purposes of inspecting it in order to develop a sale plan. On August 25, 2004, the
Chapter 11 Trustee filed the Chapter 11 Trustee’s Motion for Entry of an Order for Writ
of Assistance from the U.S. Marshal and Request for Expedited Hearing. In that motion,
the Chapter 11 Trustee sought removal of the occupants of the Property in order to repair
the Property and market it for sale. On September 15, 2004, the Court entered the Order
Granting in Part Trustee’s Motion for entry of an Order for Writ of Assistance and
required the Debtor to provide the Chapter 11 Trustee and his approved real estate agent
access to the Property. On September 24, 2004, the Chapter 11 Trustee filed Chapter 11
Trustee’s Emergency Motion for Entry of an Order for Writ of Assistance from the U.S.
Marshal and Request for Expedited Hearing. In that motion, the Chapter 11 Trustee
stated that he was denied access to the property in contravention of the September 15,
2004 order.
On or about October 7, 2004, the Court entered an Order Enforcing this Court’s
Prior Orders Compelling Certain Actions and Cooperation by Debtor, Issuing Writ of
Assistance from U.S. Marshal, Granting (in Part) Chapter 11 Trustee’s Emergency
Motion for Entry of an Order for Writ of Assistance from U.S. Marshal, and Granting
Chapter 11 Trustee’s Request for Expedited Hearing. In that order, the Court granted the
Chapter 11 Trustee's request for Writ of Assistance and directed the U.S. Marshal to
provide any and all assistance required by the Chapter 11 Trustee to access the Property.
In support of this order, the Court issued written findings on the same day. The Court
found:
Case 04-35620 Doc 480 Filed 12/11/06 Page 5 of 21

6
The Chapter 11 Trustee has been attempting to market and sell the
Property consistent with his duties to the Estate and in accordance
with prior orders of the Court including the June 24th Order (P176)
and the September 17th Order (P272).
The Chapter 11 Trustee is working to sell the Property for the
benefit of the Estate in an expedited time frame….
********
…it is conceded by the Debtor that the Property is not being kept
up, though the effect on value of what the Debtor prefers to call
“deferred maintenance” is disputed.
Notwithstanding the deteriorating condition of the Property, the
Chapter 11 Trustee has identified one prospective purchaser who
apparently is aware of the condition of the property but may be
willing to pay $700,000.00, the full appraised value of the
Property, provided (i) the purchaser has an opportunity to inspect
the Property prior to offering a contract; (ii) and the Debtor and the
residents and their personal property are removed prior to closing.
********
Based on the record of the Emergency Hearing, it is clear the
Debtor has failed to comply with the terms of this Court’s orders,
especially P176 and P272 [the June 24 Order and the September 17
Order, respectively]. It is also clear that the Debtor has not acted
in accordance with the spirit of those orders, which above all
required his cooperation with the Chapter 11 Trustee, which is
after all a statutory duty of the Debtor under 11 U.S.C. § 523(3).
The Court recognizes and understands that the Debtor would like
to retain his home. That does not, however, excuse noncompliance
with orders of this Court.
********
Understandably, the Debtor would like to defer that day of
reckoning as long as possible… 1
On November 5, 2004, the Chapter 11 Trustee filed a motion to sell the Property
pursuant to 11 U.S.C. § 363. On November 11, 2004, Ms. Byrd filed a petition under
1 Findings in Support of October 7, 2004 Orders (I) Granting (In Part)Chapter 11 Trustee's Emergency
Motion for a Writ of Assistance and (II) Denying Debtor's Emergency Motion for A Stay Pending Appeal.
Docket No. 297 at p. 3-5 (entered in case no. 01-25006).
Case 04-35620 Doc 480 Filed 12/11/06 Page 6 of 21

7
Chapter 13 of the Bankruptcy Code, thereby halting the Chapter 11 Trustee's effort to sell
the Property.
3. 	Efforts to sell the Property by the Second Chapter 7 Trustee.
As noted above, on March 20, 2006, the Debtors’ substantively consolidated
Chapter 13 case was converted to a case under Chapter 7. On April 19, 2006, the Second
Chapter 7 Trustee filed a Motion to Enter Order Enforcing Court's Prior Orders
Compelling Actions and Cooperation by the Debtors and Issuing a Writ of Assistance
from the U.S. Marshal (the "Enforcement Motion").
On August 17, 2006, the Court entered Order Authorizing Employment of Real
Estate Broker in order to allow the Trustee to market and sell the Property. Moreover, on
August 23, 2006, the Court entered an Order Authorizing Employment of Moving
Company. That order provides that the Trustee is authorized to employ Begal
Enterprises, Inc. (“Begal”) to remove all personal property from the Property and to clean
the interior of the Property, if necessary, upon the Trustee’s request to the Court and
notice to the Debtors.
C. 	NOTICE TO THE DEBTORS THAT THEY WILL BE REQUIRED TO
VACATE THE PROPERTY
The Debtors have been on notice since at least shortly after the chapter 13 case
was converted to chapter 7 in March, 2006, that the Trustee would seek to have them
removed from the Property. On April 19, 2006, the Second Chapter 7 Trustee sent a
letter requesting that the Debtors commence cleaning the Property to place it in
marketable condition and requested that they plan to vacate the premises within thirty
days. In that letter, the Second Chapter 7 Trustee stated:
Case 04-35620 Doc 480 Filed 12/11/06 Page 7 of 21

8
We suggest that Mrs. Byrd, you [Mr. Byrd] and any other
occupants of the Property plan to vacate the premises
within the next thirty (30) days. If Mrs. Byrd, you or the
occupants choose to stay, they and you remain at their and
your own risk. In particular, you have expressed concern
over whether you will be able to adequately represent your
clients if you had to quickly move your practice to a new
location. We suggest that you immediately commence
moving your law practice to another location.
Letter to Debtors Dated April 19, 2006. Nothing in the record suggests that the Debtors
took any steps to vacate the Property or to prepare for an orderly transition of Mr. Byrd’s
law practice to a new location at any time since the April 19 letter.
More recently, on June 15, 2006, this Court held a hearing on the Trustee’s
Enforcement Motion. That motion had been unopposed at the time of the June 15
hearing. Docket No. 334 at p.109. The Court was prepared to grant that motion but stay
its enforcement for thirty days. Id. at p. 113. The order proposed by the Trustee which
the Court was prepared to enter included a writ of assistance to the U.S. Marshall to assist
the Trustee, among other things, “to remove all occupants from the Property, to oversee
the removal of any and all contents of the Property to the street and to assist the Trustee
in changing the locks and securing the Property.” Proposed Order at Docket No. 284 at
p. 3. At the June 15 hearing, the Debtors pledged that they would cooperate with the
Trustee and requested that the Court not enter the order even after thirty days “if, after
thirty days, you can see that things are moving smoothly.” Docket No. 334 at p. 114-115.
The Court expressly agreed to give the Debtors “one more chance here to cooperate,” id.,
and further stated:
The Court: 	But at this point, Mr. Byrd, there are two writs of assistance issued
to Mr. Johnson.
Case 04-35620 Doc 480 Filed 12/11/06 Page 8 of 21

9
Mr. Byrd: 	Yes.
The Court: 	I am saying, because this would be easier and less expensive for
everybody, including yourself, to go forward on a cooperative
basis. We will give it a try.
Mr. Byrd: 	Yes.
The Court: 	But it’s the ---
Mr. Byrd: 	I understand.
The Court: 	You understand what I’m saying.
Mr. Byrd: 	I understand. I understand loud and clear.
Id. at p. 116-117.
Next, the Trustee provided oral notice to the Debtors on September 15, 2006, that
he wanted all individuals and contents removed from the Property on or before October
15, 2006. The Trustee confirmed in writing his notice to the Debtors to vacate the
Property by letter dated September 18, 2006. In this letter the Trustee reiterated his
request that the Debtors be prepared to vacate the Property within 30 days. In particular,
the Trustee stated:
Mr. Johnson indicated that Mrs. Byrd and you should
vacate the Property by October 15, 2006, which was 30
days from the date he had such a discussion with you. We
ask that you remove all of the contents of the Property by
such time. At the very least, we strongly suggest that you
remove all personal property that you deem important or
valuable. It is likely that the business hired to remove the
contents of the property and to clean the property will find
it most efficient to place all contents of the Property in one
or more commercial-sized dumpsters. We are concerned
that placing the contents of the Property at the side of the
road will create a tremendous problem in your
neighborhood.
Case 04-35620 Doc 480 Filed 12/11/06 Page 9 of 21

10
Letter to Debtors dated September 18, 2006. On the same day, the Trustee filed the
instant Motion.
D. 	THE CONDITION OF THE PROPERTY
The Trustee examined the Property in the fall of 2004 and examined it again
(three times) in the past several months. The Property is a single family residence located
on an approximately 10 acre parcel. 	The Trustee introduced into evidence 50 pictures of
the Property taken during his recent inspections and testified at length, using the pictures
as a “virtual tour”, about the current condition of the Property. The Trustee also
presented 8 pictures of the Property that were taken in 2004, and testified at length about
the condition of the Property in 2004 as compared to today.
The Court finds that the Property is in deplorable condition. In no way could the
Property be marketed or shown in its present condition except to an investor who would
pay a steep discount from its value. There is no working electricity in the basement. The
Debtors turn off the main water to the Property every day because of water leaks, and
turn on the water temporarily only as needed. The inside of the Property has apparent
mold and mildew damage, and there appears to be substantial mold on the outside of the
Property – particularly the roof – as well. The Property is filled with papers, boxes,
debris and other personalty2 to the point where it is difficult to maneuver through the
rooms in the house. The outside of the Property also is littered with debris and the yard is
completely overgrown and unkempt. The Trustee has received an estimate from Begal
that it would take 10 workers a total of 48 hours each – for a total of 480 worker hours at
a cost of $38,000 – to clear the inside and outside of the Property of the personalty and
2 After Mr. Byrd objected to the Trustee’s characterization of the personalty littered throughout the inside
and outside of the Property as “junk,” the Trustee referred to it as “debris.”
Case 04-35620 Doc 480 Filed 12/11/06 Page 10 of 21

11
debris. Whether this estimate is high or low, the Court has no doubt that the task to clear
the Property of all the personalty will be a time-consuming job.
Because of the condition of the Property, the Trustee and the court-approved real
estate agent are having a difficult time estimating the Property’s fair value for purposes of
listing and selling the Property. In its current condition, they cannot determine the extent
of the damage from the water leaks, the electrical problems or the apparent mold and
mildew, or for that matter, make an accurate assessment of the Property’s structural
condition or mechanical systems. They will only be able to make these determinations
after the Property is cleared of the debris.
The Court further finds that the Property’s condition has deteriorated since 2004,
and continues to deteriorate. This fact was established by the Trustee’s testimony of the
condition of the Property in 2004 and today, and by a comparison of the pictures offered
into evidence by the Trustee from 2004 and today. The Property is not being maintained
and problems that existed in 2004 continue to exist, and have worsened since 2004. The
testimony and pictures also established that there is more personal property in the house,
and the outside of the Property is more littered and overgrown, today than in 2004.
E. 	THE LACK OF EQUITY FOR THE DEBTORS IN THE
BANKRUPTCY ESTATE
The Debtors have no equity in the bankruptcy estate and therefore no realistic
expectation of receiving any distribution. The Property is the only remaining valuable
asset of the estate. While recognizing the difficulty he faces in estimating the Property’s
value in its current condition, and qualifying his estimate in light of that difficulty, the
Trustee, having inspected the Property with the court-approved real estate agent, believes
that he may be able to sell the Property for $700,000 after he expends considerable funds
Case 04-35620 Doc 480 Filed 12/11/06 Page 11 of 21

12
placing the Property in marketable condition. 3 He estimates that the broker’s commission
and other costs of sale will be $50,000.
The Trustee’s commission payable under 11 U.S.C. § 326(a) on the
administration of estate funds of $650,000 (the net sales proceeds) would be
approximately $35,000. See 11 U.S.C. §326(a). The Trustee estimates that the secured
claims of the first and second trust holders to be $500,000. In addition, the Court has
allowed administrative claims in the total amount of approximately $144,000.4 The
Court has recently entered an order under which an amount estimated to be $52,350 held
by the Chapter 13 Trustee would be applied toward the approved administrative claims.
Docket No. 401.5 Accordingly, the current estimate of net funds available after current
known or approved expenses is as follows:
Estimated Sale Price 	$700,000
Less: 	Costs of sale 	($ 50,000)
Less: 	Trustee’s commission 	($ 35,000)
Less: 	Secured Claims 	($500,000)
Less: 	Allowed Administrative 	($144,000)
Claims:
Add: 	Chapter 13 funds 	$52,350
Net Funds Available 	$23,350
3 As an indication of both the value and the deteriorating condition of the Property, the Trustee had an offer
to purchase the Property in 2004 for $700,000. The Trustee believes he may be able to receive that price
today only after expending considerable funds to prepare it for sale, including substantial costs just to
remove the debris form the inside and outside of the Property.
4 The Court approved fees and costs of the Chapter 11 Trustee and his counsel in the aggregate amount of
$129,394.14. Docket Nos. 66 and 73 respectively, in Case No. 04-35620 by orders entered on March 28,
2005, and April 18, 2005. In addition, the Court held a hearing on Dec. 1, 2006 on the application for
administrative expenses of Platinum Financial Services (Docket No. 358). At the conclusion of that
hearing, the Court indicated that Platinum’s application will be granted in the amount of $15,621.41.
5 The exact amount of the funds held by the Chapter 13 Trustee was not established. The amount of
$52,350 was the amount that the Debtors asserted the Chapter 13 Trustee held. Docket No. 331 at p.2.
Case 04-35620 Doc 480 Filed 12/11/06 Page 12 of 21

13
Therefore, at the Trustee’s current estimate of the Property’s sale price, there will
be $23,350 of net funds available, without taking into account (1) the costs to clean the
Property, remove the personalty from the inside and outside, and put the Property in
marketable condition, which will be considerable; (2) the administrative costs of the
bankruptcy case in the current Chapter 7 6 ; (3) the administrative costs of the case
incurred while it was in the initial Chapter 7, Chapter 11 or Chapter 13 that have not yet
been filed or resolved7 ; or (4) any distribution to the pre-petition unsecured claims.
There is no doubt that these costs and claims will exceed $23,350. Therefore, the Court
finds that the Debtors will not receive a distribution from this estate.
II. 	CONCLUSIONS OF LAW
A. 	11 U.S.C. § 704(a)(1) REQUIRES THE TRUSTEE TO SELL THE
PROPERTY
Section 704(a) of the Bankruptcy Code sets forth a Chapter 7 trustee’s duties.
Section 704(a)(1) provides that the trustee “shall … collect and reduce to money the
property of the estate for which such trustee serves, and close such estate as expeditiously
as is compatible with the best interests of parties in interest.” 11 U.S.C. §704(a)(1). The
Bankruptcy Code provides a trustee with a number of tools to fulfill this duty. Section
521(a)(4) provides that a debtor “shall … if a trustee is serving in the case, surrender to
the trustee all property of the estate….” 	11 U.S.C. §521(a)(4) (emphasis added).
Section 363 authorizes a trustee, after notice and a hearing, to use, sell or lease property
of the estate other than in the ordinary course of business.
6 Counsel for the Trustee has recently filed an interim application for fees and expenses for services
rendered from the conversion of the case to Chapter 7 through September 30, 2006 in the amount of
$39,543 for fees and $2,469.93 for expenses. Docket No. 460.
7 Counsel for the Trustee also has included in the fee application (see n.6) a request for fees and services
rendered while the case was in Chapter 13 in the amount of $39,943 for fees and $2,875.74 for expenses.
Docket No. 460.
Case 04-35620 Doc 480 Filed 12/11/06 Page 13 of 21

14
In this case, the Trustee filed the Motion pursuant to Section 521 seeking an order
requiring the Debtors to turnover to him possession and control of the Property in
anticipation of its sale.8 The Trustee plans to clean, market and sell the Property; indeed,
as described in the Findings of Fact, either this Trustee or a prior Trustee has been
attempting to do so for several years. The Court previously approved the Trustee’s
retention of a real estate agent to list the Property for sale and assist the Trustee in selling
the Property. Docket No. 375. The Court also previously approved the Trustee’s
retention of a cleaning and moving company in the event those services are needed.
Docket No. 385. The actions taken by the Trustee in anticipation of selling the Property
are not unusual in a Chapter 7 case and are entirely consistent with the Trustee’s duties.
B. 	THE DEBTORS DESIRE TO REMAIN IN THEIR HOME DOES NOT
OVERRIDE SECTION 704(a)(1)
The Debtors point out that Section 704(a)(1) requires the Trustee to act “as
expeditiously as is compatible with the best interests of parties in interest.” 11 U.S.C.
§704(a)(1). They contend that they are “parties in interest” because they have a
pecuniary interest in the Property. They contend that the Court must consider their plight
in determining whether to order the turnover of possession and control of the Property.
In particular, the Debtors ask the Court to consider the disruption that moving will have
on their lives and the effect moving will have on Mr. Byrd’s home-based law practice.
This Court concludes that, assuming the effect a turnover order will have on the Debtors
8 The Debtors filed a motion to strike the Motion contending that it should have been brought as an
adversary proceeding under Fed. R. Bank. Proc.7001. Docket No. 457. The Court summarily denied the
motion to strike as not filed in compliance with the local rules. Docket No. 465. At the December 1st
hearing on the Motion, the Debtors sought to revive the motion to strike. The Court treated the Debtors’
argument at the hearing as an oral motion to reconsider the denial of the motion to strike. The Court denied
the oral motion to reconsider on the merits, because under the express provisions of Fed. R. Bank. Proc.
7001(1) a proceeding to compel the debtor to turnover or deliver property to the trustee is brought by
motion, not adversary proceeding.
Case 04-35620 Doc 480 Filed 12/11/06 Page 14 of 21

15
is a factor for the Court to consider in whether to grant the Motion, that factor does not
override the Trustee’s duty to sell the Property and administer the estate for the benefit of
creditors, particularly in light of the time that has been given to the Debtors to prepare to
vacate and the deteriorating condition of the Property.
First, the Court has misgivings as to the extent to which the Debtors are parties in
interest in this case for purposes of Section 704(a)(1), or at least, what “interest” the
Debtors seek to protect. 	As the Debtors point out, the Fourth Circuit has interpreted the
term “parties in interest” to include “all persons whose pecuniary interests are directly
affected by the bankruptcy proceedings. Yadkin Valley Bank & Trust Co. v. McGee (In
re Hutchinson), 5 F.3d 750, 756 (4th Cir. 1993). A “pecuniary interest” is an interest that
relates to or is of money. 9
As set forth in Section E of the Findings of Fact, it is now clear that the Debtors
will not receive a distribution from this estate. See supra, Findings of Fact at Section E.
Of particular concern to the Court is that it appears certain that the proceeds from the sale
of the Property will be insufficient to pay the administrative claims of the bankruptcy
case, much less make any distribution to the pre-petition unsecured creditors.
At the hearing on the Motion, the Trustee raised the issue of whether the Debtors
have a sufficient pecuniary interest in this case to have continued standing to object to the
sale of the Property, object to claims, or participate in other estate administration matters.
See Willemain v. Kivitz, 764 F.2d 1019 (4th Cir. 1985) (Finding that an insolvent debtor
was not a party in interest and lacked standing to object to a sale of estate assets because
he had no pecuniary interest in the distribution of his assets among his creditors.) The
9 “Monetary; consisting of money or that which can be valued in money.” Black’s Law Dictionary 782
(6 th ed. 1991).
Case 04-35620 Doc 480 Filed 12/11/06 Page 15 of 21

16
issue of the extent to which the Debtors continue to have standing to participate in this
case will be addressed in the context of the particular case administration matters as
presented by the Trustee or other parties. For purposes of this ruling, the Court concludes
that to the extent the Debtors have any remaining pecuniary interest in the Property or the
estate, that interest is best served by having them vacate the Property and allowing the
Trustee to attempt to maximize the recovery from its sale.
In connection with the Motion, the Court has fully allowed the Debtors to
prosecute their objection to the Motion and participate in this contested matter. The Court
has accepted the Debtors’ contention that they are parties in interest for purposes of
Section 704(1)(1) because they reside on the Property, and will address the Debtors’
contention that the disruption that a turnover order will have to the Debtors’ personal
lives requires the Court to delay the sales process. The Court concludes that, for several
reasons, any disruption the Debtors face does not warrant deferring the sale process
mandated by Section 704(a)(1).
First, the Debtors have been on notice for four years that the Property would be
sold if they were unsuccessful in their substantial efforts to prevent the sale in the
bankruptcy cases. See supra, Findings of Fact at Section B. Thus the Debtors have long
known that this “day of reckoning” would come if they did not convince a court to halt it.
See supra at p. 6 quoting Docket No. 297 at p. 3-5 (entered in Case No. 01-25006). 	.
Second, Section 704(a)(1) requires that the Trustee act “as expeditiously as is
compatible with the best interests of parties in interest.” 11 U.S.C. § 704(a)(1) The
Debtors have had specific notice and opportunity since the case was converted to Chapter
7 eight months ago to make an orderly move of Mr. Byrd’s law practice. As described
Case 04-35620 Doc 480 Filed 12/11/06 Page 16 of 21

17
further in the Findings of Fact, the April 19, 2006 letter by the Trustee, the relief sought
by the Trustee and the statements by the Court at the June 15, 2006 hearing, and the
September 18, 2006 letter by the Trustee all put the Debtors on notice that the Property
was going to be sold absent a stay. See Findings of Fact at Section C. The Debtors,
therefore, have had more than eight months notice in which to prepare to move from the
Property.10 Taking into account the two additional months the Debtors are being given to
vacate the Property under this ruling, see infra at page 20, the Debtors will have had 10
months from the conversion of this case to Chapter 7 to surrender property of the estate to
the Trustee. Ten months is an unusually long amount of time for a Chapter 7 debtor to
remain in possession of property of the estate and certainly is more than sufficient time to
meet the mandate of Section 704(a)(1).
Third, the Court finds the Debtors’ claim that being required to vacate the
Property will cause substantial harm to Mr. Byrd’s law practice was not supported by any
evidence they presented at the hearing. The Debtors simply state that because Mr. Byrd
practices law out of the Property, the granting of the Motion will cause substantial harm
to that practice. The Debtors offered no evidence whatsoever about any efforts they have
taken to search for alternative housing, whether they have the ability to relocate, or
10 In their Opposition at page 2, the Debtors rely on In re DeMarco, 114 B.R. 121, 124 (Bankr. D. W. Va.
1990), in support of the proposition that they were not obligated to move from the Property without a court
order. Assuming this proposition is true, it affords the Debtors no relief. First, the Trustee is seeking an
order of removal in the Motion, consistent with the dictates of DeMarco. Second, the Court is not granting
the Motion because the Debtors have failed to comply with a prior order to vacate. Rather, the prior efforts
of the Trustees to have the Debtors removed from the Property and to sell the Property served as ample
notice to the Debtors that this day would come if they were unsuccessful in preventing the sale through
their efforts in the bankruptcy cases. Whether the Debtors have violated the letter or spirit of prior Court
orders is not before the Court in the Motion.
Case 04-35620 Doc 480 Filed 12/11/06 Page 17 of 21

18
whether they have funds available to relocate, or the effect that moving will have on Mr.
Byrd’s law practice.11
This complete absence of any evidence offered by the Debtors of whether they
have resources available to relocate is troublesome in light of the Debtors’ ongoing
statements and litigation position in the bankruptcy case. First, the Debtors have stated
that they continue to make monthly payments on the first and second deeds of trust
against the Property, and therefore the Court concludes inferentially that they have
various resources available to them. More significantly, the Debtors filed a joint
amended Chapter 13 plan in November 2005. Docket No. 129. At the confirmation
hearing on the plan, the Debtors contended that the plan was feasible and should be
confirmed. They have appealed the denial of confirmation of the plan and continue to
assert in this Court - and presumably on appeal - that the proposed amended plan is
feasible and should be confirmed. Under the Debtors’ proposed amended plan, they were
required to pay $2,850 per month during the first 10 months of the Chapter 13 case,12
$3,500 per month during the next 12 months, and $6,052 per month for the next 38
months. See Docket 129 at p.1. The 22nd month anniversary of the Chapter 13 case has
passed. This means that the Debtors currently would have been required to pay $6,052
per month to the Chapter 13 Trustee under their plan, and would have been required to
maintain those payments for 38 months. By continuing to assert that their plan is
11 As stated above, supra at p. 2, Mr. Byrd did not testify at the hearing or offer any evidence. On cross-
examination of the Trustee, he had the Trustee repeat statements to the effect that Mr. Byrd had told the
Trustee during the Trustee’s inspection of the Property that the Debtors did not have the funds to move out
of the Property. Because Mr. Byrd was at the hearing and available to testify, the Court does not accept as
probative Mr. Byrd’s out-of-court statements that he had the Trustee repeat on cross-examination. Such
self-serving hearsay is not an admission of a party-opponent and was not offered “against a party.” Fed. R.
Evid. 801(c) and (d)(2) made applicable in bankruptcy by Fed. R. Bankr. P. 9017. But see infra at n. 13.
12 The payments required by the plan commence upon the filing of the initial plan, rather than the filing of
the amended plan. 11 U.S.C. § 1326(a)(1).
Case 04-35620 Doc 480 Filed 12/11/06 Page 18 of 21

19
feasible, the Debtors are essentially representing to the Court that they have $6,052 of
income available each month to support the plan. The Court can only conclude that the
Debtors failed to introduce any evidence of the resources available to them because of
their ongoing effort to establish the feasibility of their plan: Either they have $6000
available to them each month to support a plan and therefore have substantial resources to
find alternative living arrangement, or they do not have resources above the amounts they
have to service the first and second deeds of trust and therefore do not have the ability to
support the plan. In either event, the Court is left only to guess because the Debtors
failed to introduce any evidence that relocating would cause them a hardship other than to
simply argue that it would disrupt Mr. Byrd’s law practice.13
C. 	THE DEBTORS HAVE NOT OBTAINED A STAY PENDING APPEAL
AND THE PROPERTY CONTINUES TO DETERIORATE
Finally, the Debtors argue that “while critical rulings are on appeal” it is in the
best interest of the estate to maintain the status quo pending the resolution of those
appeals. This Court disagrees.
First, several of the Debtors’ appeals to the District Court have recently been
denied, including the appeal of the order denying confirmation of the Debtors’ Chapter
13 plan and the appeal of the order converting the case to Chapter 7. 	See Docket No.
470.
Second, the Debtors have sought but have failed to obtain a stay of these rulings
pending appeal. This is not for lack of trying. The Debtors have filed numerous motions
13 The Court concludes that even if the Court accepts the self-serving hearsay statements of Mr. Byrd to the
Trustee that he does not have the resource to move, see supra at n. 11, the Court nevertheless would grant
the Motion because (1) the deteriorating condition of the Property is harmful to the estate; (2) the Debtors
have had ample notice and opportunity that they would be required to move; and (3) the Byrd’s failed to
introduce any evidence of the harm to them that would result from an order to vacate.
Case 04-35620 Doc 480 Filed 12/11/06 Page 19 of 21

20
for reconsideration, motions for stay pending appeal, and notices of appeal. At least the
Bankruptcy Court, and presumably the District Court as well since this Court is not aware
that any stay has been granted, has reviewed the Debtor’s stay motions under the well
established four-prong test and has ruled that the Debtors are not entitled to a stay
pending appeal. See e.g., Docket Nos. 469, 422, 341, and 326.
Third, the Court finds and concludes that the Debtors have failed to maintain the
Property and its deteriorating condition is harmful to the estate. See supra, Findings of
Fact at Section D. At least as early as October 7, 2004, this Court concluded that the
Property was in “deteriorating condition” and that the Debtors “conceded …. the
Property is not being kept up….” See supra, at p. 6 quoting Docket No. 297 at p. 4
(entered in Case No. 01-25006). As this Court finds in the Findings of Fact, the evidence
adduced by the Trustee at the hearing on the Motion establishes overwhelmingly that the
Property continues to deteriorate and that it is not being properly maintained. Supra
Findings of Fact at Section D. Accordingly, the Court concludes that it is in the best
interest of all parties for the Debtors to vacate the Property to allow the Trustee to
administer the Property for the benefit of the estate.
D. 	TIMING OF REMOVAL
The Trustee requested an order requiring the Debtors to vacate the Property by
January 15, 2007 with a writ of assistance to the United States Marshall to remove the
Debtors and their belongings if they have not vacated by that date. At the conclusion of
the December 1 hearing, the Court informed Mr. Byrd that it intended to issue a written
opinion but, so that the Debtor would have notice at the time of the December 1 hearing
that they would be required to vacate, further informed the Debtors that it was going to
Case 04-35620 Doc 480 Filed 12/11/06 Page 20 of 21

21
grant the Motion. After the Debtors pledged to keep the first and second deeds of trust
payments current as consideration for their continued possession of the Property, the
Court announced that it would require the Debtors to vacate by January 31, 2007.
Accordingly, at the December 1 hearing, the Debtors were given 62 days notice that they
must vacate the Property. The Court further finds that if the Debtors have not vacated the
Property by January 31, 2007, then they clearly do not intend to voluntarily vacate and
the Trustee shall be entitled to employ the services of the United States Marshal to take
exclusive possession of the Property at any time after that date.
III. 	CONCLUSION
For the foregoing reasons, the Court shall enter an order granting the Motion and
requiring on or before January 31, 2007 that the Debtors vacate the Property, and remove
all of their belongings and personal property that they desire to keep unless the Trustee
specifically directs them to leave to any particular items of personal property that is
property of the estate. The order shall also require the Debtors to keep the first and
second deeds of trust current as consideration for their possession of the Property, and
shall provide a writ of assistance to the United States Marshall to assist the Trustee in
removing the Debtors or their belongings on and after February 1, 2007.
Copies to:
Debtors
Trustee
Office of the U.S. Trustee
All Parties on the Mailing Matrix
END OF ORDER
Case 04-35620 Doc 480 Filed 12/11/06 Page 21 of 21