Lucero v. Town of Clayton

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
Phillip S. Lucero v. Town of Clayton
05-01208
Order, To Dismiss Adversary Proceeding .
Received on: 2006-04-17 14:37:37.000
2006-04-17 00:00:00.000
2006-04-17 00:00:00.000
James Burke
Case 05-01208-s Doc 18 Filed 04/17/06 Entered 04/17/06 15:45:00 Page 1 of 4

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
PHILLIP S. LUCERO,
Debtor. 	No. 7-04-11672 SS
PHILLIP S. LUCERO,
Plaintiff,
v. 	Adv. No. 05-1208 S
TOWN OF CLAYTON,
Defendant.
ORDER DISMISSING COMPLAINT
This matter came before the Court for a pretrial conference.
The parties agreed that no facts were in dispute, and that this
case could be resolved through briefs. 	Having considered the
stipulations and the briefs, the Court finds that this case
should be dismissed for lack of jurisdiction.
FACTS
1. 	Plaintiff (Debtor) filed a voluntary chapter 7 proceeding on
March 9, 2004 and received a discharge on June 21, 2004 at
which time the case was closed.
2. 	Debtor’s statement of intention stated that he intended to
surrender two parcels of real estate in Clayton, New Mexico.
3. 	The chapter 7 trustee abandoned all assets at the conclusion
of the section 341 meeting on April 16, 2004.
4. 	The secured creditor has not foreclosed on the property
Debtor intended to surrender.
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Page -2-
5. 	In July, 2005, Debtor incurred indebtedness to the Town of
Clayton due to his failure to keep the Clayton property free
of weeds as required by town ordinance.
6. 	Debtor seeks a declaratory judgment that his liability to
the Town of Clayton was a pre-petition debt and therefore
discharged.
CONCLUSIONS OF LAW
1. 	The debt in question is a post-petition debt. 	It is based
on actions that occurred in 2005. 	See Dixon v. United
States (In re Dixon), 210 B.R. 610, 612 (Bankr. W.D. Ok.
1997), aff’d, 218 B.R. 150 (10 th Cir. BAP 1998).
2. 	The bankruptcy court lost jurisdiction over the property and
disputes about the property when it was abandoned from the
estate. 	Gardner v. United States (In re Gardner), 913 F.2d
1515, 1518 (10 th Cir. 1990). 	Also, when the property was
abandoned, “the property stands as if no bankruptcy had been
filed and the debtor enjoys the same claim to it and
interest in it as he held previous to the filing of
bankruptcy.” 	In re Cruseturner, 8 B.R. 581, 591 (Bankr. D.
Utah 1981).
3. 	The Town of Clayton’s actions against the Debtor do not
arise in or arise under the Bankruptcy Code.
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4. 	The outcome of Debtor’s dispute with the Town of Clayton has
no relationship to the bankruptcy estate because it revolves
around a post-petition debt.
5. 	The Bankruptcy Court has no jurisdiction over this dispute
between the Town of Clayton and Debtor.
THEREFORE, IT IS ORDERED that this case is dismissed without
prejudice for lack of Bankruptcy Court jurisdiction.
Honorable James S. Starzynski
United States Bankruptcy Judge
I hereby certify that on April 17, 2006, a true and correct copy
of the foregoing was electronically transmitted, faxed,
delivered, or mailed to the listed counsel and/or parties.
Robert O Beck
PO Box 572
Clayton, NM 88415-0572
Michael K Daniels
PO Box 1640
Albuquerque, NM 87103-1640
Case 05-01208-s Doc 18 Filed 04/17/06 Entered 04/17/06 15:45:00 Page 4 of 4