Larry M Scearce

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Case 1:05-bk-11059 Doc 29 Filed 08/15/05 Entered 08/17/05 08:03:09 Desc Main
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This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southem District of Ohio.

IT SS SO ORDERED.

di

Dated: August 15, 2005 JWincent Aug, Jr.
United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT
WESTERN DIVISION
In re Case No. 05-11059
Larry Scearce Chapter 13 (Judge Aug)

Debtor
ORDER DENYING DEBTOR’S MOTION FOR CONTEMPT

This matter is before the Court on the Debtor’s motion for contempt (Doc.
14) and Cinergy’s reply (Doc. 26). A hearing was held on July 27, 2005.

The Debtor contends that Cinergy should be held in contempt for failing to
re-establish utility service. Cinergy contends that the duties imposed upon it under
11 U.S.C. §366 do not apply where it is able to prove that tampering and/or
unauthorized utility usage occurred at the Debtor’s premises.

The subject property involved is 2866 Wilbrahan, a single family home.
Since 1989, the property has been titled in the name of the Debtor and Cynthia
Scearce, his now deceased wife. The Debtor was estranged from his wife for four
or five years before her death and did not live in the house full time during that
period. He did periodically return to the house, attempting to reconcile with his

AUTHENTICATED

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wife. In his bankruptcy schedules, the Debtor lists 2866 Wilbrahan as his
residence, although his schedules also indicate that he is currently living elsewhere.
He testified at the hearing that he would like to return to Wilbrahan property to live
once the electricity is back on.

Originally, the utility account at the property was in the name of Cynthia
Scearce. This account was turned off for nonpayment in April 1998.

In November 1998, a new account was established at the property in the
name of Debbie Alcorn. It was explained at the hearing that Debbie Alcorn is the
Debtor’s daughter’s sister-in-law. This account was disconnected for nonpayment
in August 2003. This disconnection process involved sealing the electric meter
located inside the property. At the hearing, Cinergy’s senior representative for
tampering and theft testified that sealing and unsealing an electric meter is very
dangerous because it is “live.”

In September 2003, a Cinergy employee noticed an air conditioner in
operation at the property. Subsequently, Cinergy investigators were denied access
to the property. Ultimately, on March 9, 2004, Cinergy cut off electric service to
the property at the utility pole on the street.

At some point, an individual named Eric Mullins requested that service be
restored at the property. He failed to comply with Cinergy’s request to provide a
copy of a lease or picture identification. It is Cinergy’s policy to require such
proof to prevent fraud. Therefore, service was never re-established at the property.

The Debtor filed his bankruptcy petition on February 18, 2005.

A utility may not refuse service to a debtor “solely” on the basis of an
unpaid prepetition debt. 11 U.S.C. §366(a). The use of the word “solely” in the
statue implies that there may be other grounds for the utility to refuse to furnish
service. E.g., Inre Webb, 38 B.R. 541 (Bankr. E.D. Pa. 1984). Indeed, it is well-
settled that a utility may refuse service to a debtor if the utility is able to prove that
tampering and/or unauthorized utility usage took place on the debtor’s property.
Id. followed by In re Morris, 66 B.R. 28 (D. E.D. Mich. 1986) and Memphis Light,
Gas & Water Division v. Farley, 135 B.R. 292 (D. W.D. Tenn. 1991). The
rationale behind these decisions is based not only on economic factors but also on
the safety factors involved and the risks posed to the public by those who tamper
with utility equipment. In re Webb, 38 B.R. at 544.

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The Debtor does not challenge Cinergy’s contention regarding tampering
and/or theft of services. Rather, the Debtor contends that he never knew of the
theft of services and that he never benefitted from the theft of services. We find
this to be unpersuasive.

First, it would be a rare instance where anyone would openly admit to a
criminal act.

Second, as co-owner of the property, the Debtor assumed the benefits and
burdens of such ownership. His house, the people living there with his permission,
and his personal contents therein benefitted from the stolen utility services,
regardless of whose name the account was in and regardless of whether the Debtor
was there or not on a regular basis.

Third, the safety concerns exist, regardless of the Debtor’s state of mind.
Accordingly, the Debtor’s motion for contempt is hereby DENIED.
IT IS SO ORDERED.
Distribution list:
Debtor
Christine Hill, Esq.
Eric French, Esq.

Chapter 13 Trustee
U.S. Trustee

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