Arden Van Upp

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MEMORANDUM RE DEBTOR’S
MOTION TO DISMISS TRUSTEE 	-1-
UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
ARDEN VAN UPP, aka DEE RICH,
aka DEE ELMALIK,
Debtor.
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Case No. 09-31932 TEC
Chapter 11
MEMORANDUM RE DEBTOR’S MOTION TO DISMISS TRUSTEE
On June 17, 2010, Debtor filed and served a motion to
terminate the appointment of the chapter 11 trustee pursuant to 11
U.S.C. § 1105, and scheduled the hearing on that motion for
July 14, 2010 at 9:30 a.m. 	In so doing, Debtor did not select a
date available for such matters under the court’s open-calendaring
system; nor did Debtor obtain the permission of the court to set
the matter on that date. 	On June 30, 2010, Trustee filed written
opposition to the motion. 	Approximately two weeks before the
scheduled hearing, the Courtroom Deputy advised Debtor’s counsel to
re-notice the matter for a date designated under the court’s open-
calendaring system for law and motion matters. 	Debtor’s counsel
Signed and Filed: July 19, 2010
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
July 20, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 09-31932 Doc# 414 Filed: 07/19/10 Entered: 07/20/10 08:06:20 Page 1 of
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MEMORANDUM RE DEBTOR’S
MOTION TO DISMISS TRUSTEE 	-2-
did not do so; nor did Debtor’s counsel advise Trustee that the
matter would not go forth on July 14th. 	The result of all this was
that Debtor did not appear on July 14th, but Trustee’s counsel,
having not been advised that the matter would not go forward on
that date, did appear. 	After reviewing the moving papers and the
opposition papers, the court determined that oral argument would
not be helpful, declined to hear any argument from Trustee’s
counsel, and ordered the matter submitted on the papers.
MERITS OF THE MOTION
The court previously ordered the appointment of a chapter 11
trustee on the basis of Debtor’s gross mismanagement of her
financial affairs. 	The most important instances of
mismanagement consisted of: (1) allowing the Webster Street
property to fall into an extreme state of disrepair; and (2)
discharging her attorney when he filed a motion to effect the sale
of the Webster Street property, where Debtor did not have
sufficient income to service the debt on that property, where the
court had advised Debtor that relief from stay would be granted if
Debtor did not attempt to sell that property promptly, and where
the Debtor had equity in that property that would be lost if relief
from stay was granted and the Webster Street property was lost in
foreclosure.
Debtor now moves to terminate the appointment of Trustee,
asserting that: (1) all creditors have been paid; (2) Debtor is
competent to manage her own affairs; and (3) she has filed suit
against Trustee in district court.
Section 1105 of the Bankruptcy Code leaves it to the
discretion of the bankruptcy court whether to terminate the
Case: 09-31932 Doc# 414 Filed: 07/19/10 Entered: 07/20/10 08:06:20 Page 2 of
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MEMORANDUM RE DEBTOR’S
MOTION TO DISMISS TRUSTEE 	-3-
appointment of a chapter 11 trustee and restore the debtor to
possession and management of the bankruptcy estate. 	For the
following reasons, I determine that the Trustee’s appointment
should not be terminated in this case at this time.
First, not all creditors have been paid. 	Debtor has filed
appeals that Trustee must defend. 	Debtor has filed a lawsuit that
Trustee must defend. 	Trustee may be entitled to be reimbursed by
the estate for fees and costs incurred in those disputes. 	This
court is not confidant that Debtor can be trusted to preserve and
manage the funds of the estate pending the outcome of those
disputes. 	Based on Debtor’s conduct in this case, this court is
not confident that Debtor would obey orders that this court might
enter directing her to use such funds to pay fees of Trustee and
his professionals.
Second, Debtor has not established any changed circumstances.
Debtor’s motion does not establish that Debtor is any more likely
to manage the bankruptcy estate properly at this date than on the
date the court ordered the appointment of a chapter 11 trustee.
**END OF MEMORANDUM**
Case: 09-31932 Doc# 414 Filed: 07/19/10 Entered: 07/20/10 08:06:20 Page 3 of
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