Galliher et al v. Internal Revenue Service

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Case 07-04035 Doc30 Filed 06/04/08 Entered 06/04/08 14:52:52 Desc Main

DECISION AND ORDER ON DEFENDANT’S MOTIOI

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UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS

In re
PARRISH M. GALLIHER and
VALERIE S. MASON,

Debtors Chapte
No. 05
PARRISH M. GALLIHER and
VALERIE S. MASON,
Plaintiffs
v. : A.P.N
INTERNAL REVENUE SERVICE :

Defendant

r7
-41368-JBR

lo. 07-4035

N TO RECONSIDER

This matter having come before the Court on the Defendant's Motion to Reconsider

(Docket #28) (the “Motion”) and the Plaintiffs’ Opposition thereto (Docket #29), after due

consideration of the relevant pleadings, including the Court’s Memor|

andum of Decision

(Docket #26) and the Summary Judgment Order (Docket #27), whi¢h the Defendant seeks

to have reconsidered, the Court hereby makes the following findings

of law:

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Reconsideration 1s appropriate;

The Coutt confirms the portion of the Order granting suf
favor of the Plaintiffs with respect Count II of the Comp
violation of the automatic stay. It appears that a portion

was property of the bankruptcy estate and, therefore, sub

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of fact and conclusions

mimary judgment in
laint, which alleged a
bf the 2005 tax refund

ect to the automatic

Case 07-04035 Doc 30 Filed 06/04/08 Entered 06/04/08 14:52:52 Desc Main
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ss)

he Plaintiffs’ Complaint fails to allege an injury as a resu t of the violation of the
automatic stay that would entitle them to damages under M1 US.C. § 362(k).
Moteover, attorney’s fees and costs with respect to that portion of the Plaintiffs’
Complaint are unwarranted as the Court ordered the retain of the refund in
response to the Debtor’s Motion to Enforce Automatic Stay on March 8, 2007.
For the foregoing reasons, the Defendant’s Motion is ALLOWED and the
Court’s Order of April 28, 2008 (Docket #27) 1s amended to strike the portion
that reads: “There remain material factual issues to be tried under Count II

concerning damages and costs asserted by the Plaintiffs.”

Dated: June 4, 2008 By the Court, |

Joel B. Rosenthal
United States Bankruptcy Judge