SilverDeer, LLC

1 The petitioning creditors were: Robert Berton, Eldon Bolton, Andrea Burns, Edward
Burns, Gail Dwyer, Stephen Dwyer, James Farrell, Janice Farrell, Daniel Gillis, Wayne Gould,
Eric M. Levin, Betsy Sawicki, Howard Shareff, Shareff & Associates DDS P.A., Constance
Utecht, Michael Utecht, and Alan Woltman.
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
IN RE:
SILVERDEER, LLC,
DEBTOR.
CASE NO. 10-08980-8-JRL
CHAPTER 7
ORDER
This matter came before the court on Howard Jacobson’s, the debtor’s attorney, motion
for the court to release funds held by the court. A hearing was held on May 1, 2012 in Raleigh,
North Carolina.
An involuntary petition for relief under chapter 7 of the Bankruptcy Code naming
SilverDeer, LLC (“SilverDeer”) as debtor was filed by petitioning creditors 1 on November 1,
2010. On March 24, 2011, SilverDeer’s involuntary bankruptcy case was dismissed. In an order
entered May 3, 2011, the court entered a judgment in favor of Mr. Jacobson pursuant to 11
U.S.C. § 303(i) for SilverDeer’s costs and attorney’s fees in the amount of $24,678.41. The
SO ORDERED.
SIGNED this 09 day of May, 2012.
________________________________________
J. Rich Leonard
United States Bankruptcy Judge
____________________________________________________________
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2
petitioning creditors filed a notice of appeal regarding the May 3, 2011 order. On June 27, 2011,
the court entered an order staying the May 3, 2011 order pending appeal, on the condition that
the petitioning creditors post a $30,000.00 supersedeas bond with the court within 10 days. The
district court entered an order on December 28, 2011, affirming the bankruptcy court’s award of
$24,062.50 in attorney’s fees and $615.91 in costs. The district court directed the bankruptcy
court to direct this award to SilverDeer, LLC, which the bankruptcy court did by order entered
on January 23, 2012. SilverDeer assigned this judgment to Mr. Jacobson.
At the hearing, Branch Banking and Trust (“BB&T”) alleged that it was a judgment
creditor of the debtor and entitled to the money due to its status as a judgment creditor. Mr.
Jacobson argued that BB&T’s claim was unsecured and that BB&T was not entitled to any
proceeds from the fund held by the clerk.
“A judgment creditor acquires a lien on the judgment debtor’s real estate by docketing.
But he acquires no lien on the personalty until there has been a valid levy.” Community Credit
Co. Of Lenoir v. Norwood, 257 N.C. 87, 91 (1962). To constitute a valid levy on a money
judgment, the sheriff must gain possession of the property or bring it within his control. In re
Phipps, 202 N.C. 642 (1932). The court finds that BB&T does not have a valid lien on the
money judgment because the sheriff failed to levy on the funds.
However, this does not resolve the matter. While the hearing on this motion was taking
place, the Internal Revenue Service served a notice of levy on the Clerk of Court to encumber
any funds belonging to SilverDeer. The Clerk is directed to retain custody of the funds pending
further orders.
END OF DOCUMENT
Case 10-08980-8-JRL Doc 108 Filed 05/09/12 Entered 05/09/12 12:00:47 Page 2 of 2