Benjamin J Donato and Serena J Donato

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
In Re:
Benjamin J. Donato and
Serena J. Donato,
Debtors.
) 	Case No. 11-34418
)
) 	Chapter 7
)
)
) 	JUDGE MARY ANN WHIPPLE
ORDER DENYING MOTION FOR TURNOVER
This case is before the court on Debtor Benjamin Donato’s Motion for Turnover (“Motion”) [Doc.
# 18]. In the Motion, Debtor seeks an order directing the attorney for Creditor Capital One Bank (“Capital
One”) to turnover funds in the amount of $1,485.19 that were garnished from his wages during the ninety-
day period before Debtors’ bankruptcy petition was filed. The basis of the Motion is presumably that the
funds represent preference payments received by Capital One. In addition, Debtor contends that the funds
were exempt from attachment and may be avoided under 11 U.S.C. § 522(h). Debtor’s certificate of service
states that the Motion was served on Capital One’s attorney by ordinary U.S. mail. Capital One has not
opposed the Motion within the time set forth in the notice appended to it and as required by the local
bankruptcy rules. Nevertheless, the Motion is procedurally defective.
Under Bankruptcy Rule 7001, “a proceeding to recover money or property, other than a proceeding
to compel the debtor to deliver property to the trustee, or a proceeding under § 554(b) or § 725 of the Code,
Rule 2017, or Rule 6002,” must be brought by adversary proceeding, which is commenced by a properly
filed and served complaint. Fed. R. Bankr. P. 7001(1) and 7003; see, also, Camall Co. v. Steadfast Ins. Co.
Dated: December 6 2011
The court incorporates by reference in this paragraph and adopts as the findings and
orders of this court the document set forth below. This document has been entered
electronically in the record of the United States Bankruptcy Court for the Northern
District of Ohio.
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(In re Camall Co.), 16 Fed. Appx. 403 (6th Cir. 2001) (affirming bankruptcy court’s decision denying a
motion for turnover because it was filed as a motion rather than as an adversary proceeding as required
under Rule 7001); In re Perkins, 902 F.2d 1254, 1258 (7th Cir. 1990) (finding that a turnover order entered
in an action commenced by motion rather than by complaint must be vacated) ; In re Wheeler Tech., Inc.,
139 B.R. 235, 239 (B.A.P. 9th Cir. 1992) (vacating bankruptcy court’s order for turnover because
proceeding was “inappropriately brought by . . .motion where an adversary proceeding is required”); In re
Barringer, 244 B.R. 402, 410 (Bankr. E.D. Mich. 1999); In re Riding, 44 B.R. 846, 859 (Bankr. Utah 1984)
(stating that “[t]he Bankruptcy Rules mandate that the court await the commencement of an adversary
proceeding before determining whether turnover shall be required”). 	None of the exceptions to Rule
7001(1) are applicable in this case. Thus, Rule 7001 required Debtor to file his request for turnover as an
adversary proceeding, subject to the procedural rules governing such proceedings, including rules governing
service of the summons and complaint in Bankruptcy Rule 7004.
THEREFORE, for the foregoing reasons, good cause appearing,
IT IS ORDERED that Debtor’s Motion [Doc. # 18] be, and hereby is, DENIED, without
prejudice.
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