Gerard Paul Rottiers and Amy Victoria Rottiers

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
GERARD PAUL ROTTIERS and
AMY VICTORIA ROTTIERS,
Debtors. 	No. 13-10-12000 SL
MEMORANDUM OPINION ON ROMBAUER VINEYARDS, INC.’S
MOTION FOR SUMMARY JUDGMENT (doc 66) ON
MOTION TO DISMISS (doc 26)
This matter is before the Court on Rombauer Vineyards,
Inc.’s (“Rombauer”) Motion for Summary Judgment (doc 66) on the
Motion to Dismiss (doc 26) filed by creditor Associated Winery
Systems, Inc. (“ASW”) to which Rombauer filed a Joinder (doc 52).
Debtors filed a Response to the Motion to Dismiss (doc 35). 	ASW
filed a Joinder in Rombauer’s Motion for Summary Judgment (doc
67). 	ASW also filed a Supplemental Joinder in the Motion for
Summary Judgment (doc 69). 	Debtors filed a Response to
Rombauer’s Motion for Summary Judgment (doc 74). 	Debtors also
filed a Response to ASW’s Joinder in the Motion for Summary
Judgment and Supplemental Joinder in the Motion for Summary
Judgment (doc 75). 	Rombauer filed a Reply to Debtor’s Response
to the Motion for Summary Judgment (doc 79).
Debtors appear through their attorney Don Provencio.
Rombauer appears through its attorneys Thuma & Walker, A
Professional Corporation (David T. Thuma and Stephanie L.
Schaeffer). 	ASW appears through its attorney Modrall Sperling
Roehl Harris & Sisk, P.A. (Paul M. Fish). 	This is a core
proceeding concerning the administration of the estate. 	28
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U.S.C. § 157(b)(2)(A). 	For the reasons set forth below, the
Court finds that the Motion for Summary Judgment and Joinder
should be denied because Debtors are eligible for Chapter 13
relief.
THE MOTION TO DISMISS
ASW’s Motion to Dismiss (doc 26) is based on three grounds.
First, it alleges that Debtor’s noncontingent, liquidated,
unsecured debts exceed the statutory maximum permitted by 11
U.S.C. § 109(e). 	Second, it alleges that the plan is filed in
bad faith and that the proposed distribution under the plan is so
nominal as to be in bad faith. 	Third, it alleges that this case
is an “abusive filing” because it was a refiling after an earlier
Chapter 13 case was voluntarily dismissed by the Debtors, and
both filings were filed to stop litigation pending in a
California state court.
Rombauer’s Joinder in ASW’s Motion to Dismiss asks the Court
to grant ASW’s motion, and additionally alleges that the Debtors
also owe Rombauer about $1.6 million as an unsecured claim,
further demonstrating their ineligibility to be Chapter 13
debtors. 	Doc 52.
Debtors, in response to the Motion to Dismiss, deny their
ineligibility, deny the bad faith allegations, admit their
involvement in the California state case, admit they have filed
two Chapter 13 cases, and deny that this filing is abusive. 	Doc
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1That contested matter is simultaneously proceeding along
through its own summary judgment motion.
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35. 	In response to Rombauer’s Joinder in the Motion to Dismiss,
Debtors filed an Objection to Allowance of Rombauer’s Proof of
Claim (doc 47) 1.
Summary Judgment
Summary judgment is proper when there is no genuine issue as
to any material fact and the moving party is entitled to a
judgment as a matter of law. 	Bankruptcy Rule 7056(c). 	In
determining the facts for summary judgment purposes, the Court
may rely on affidavits made with personal knowledge that set
forth specific facts otherwise admissible in evidence and sworn
or certified copies of papers attached to the affidavits.
Fed.R.Civ.P. 56(e). 	When a motion for summary judgment is made
and supported by affidavits or other evidence, an adverse party
may not rest upon mere allegations or denials. 	Id. 	Rather,
“Rule 56(e) ... requires the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file,’ designate
‘specific facts showing that there is a genuine issue for
trial.’” 	Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
“Rule 56(e) permits a proper summary judgment motion to be
opposed by any of the kinds of evidentiary materials listed in
Rule 56(c), except the mere pleadings themselves.” 	Id. 	The
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court does not try the case on competing affidavits or
depositions; the court's function is only to determine if there
is a genuine issue for trial. 	Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).
In ruling on a motion for summary judgment, the trial court
views the evidence and draws reasonable inferences therefrom in
the light most favorable to the nonmoving party. 	Mountain
Highlands, LLC v. Hendricks, 616 F.3d 1167, 1169-70 (10 th Cir.
2010)(citing Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th
Cir. 2005)). 	On those issues for which it bears the burden of
proof at trial, the nonmovant “must go beyond the pleadings and
designate specific facts so as to make a showing sufficient to
establish the existence of an element essential to [its] case in
order to survive summary judgment.” 	Id. at 1170 (quoting Cardoso
v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)) (internal
quotation marks omitted). 	“[F]ailure of proof of an essential
element renders all other facts immaterial.” 	Id. (quoting Koch
v. Koch Indus., Inc., 203 F.3d 1202, 1212 (10th Cir.), cert.
denied, 531 U.S. 926 (2000)).
New Mexico LBR 7056-1 governs summary judgment motions. It
provides, in part:
The memorandum in support of the motion shall set
out as its opening a concise statement of all of the
material facts as to which movant contends no genuine
issue exists. 	The facts shall be numbered and shall
refer with particularity to those portions of the
record upon which movant relies.
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A memorandum in opposition to the motion shall
contain a concise statement of the material facts as to
which the party contends a genuine issue does exist.
Each fact in dispute shall be numbered, shall refer
with particularity to those portions of the record upon
which the opposing party relies, and shall state the
number of the movant's fact that is disputed. 	All
material facts set forth in movant's statement that are
properly supported shall be deemed admitted unless
specifically controverted.
DISMISSAL
While the Motion to Dismiss cites three grounds, the Motion
for Summary Judgment and Joinder focus only on Debtors’
eligibility to be Chapter 13 debtors. 	Because the Court finds
the Debtors eligible, the remaining issues regarding bad faith
and abusive filing will be dealt with later, either at
confirmation or earlier at a hearing if requested by the
creditors.
Bankruptcy Code section 109 deals with eligibility
requirements for debtors. 	Section 109(e) deals specifically with
eligibility to be a Chapter 13 debtor:
Only an individual with regular income that owes, on
the date of the filing of the petition, noncontingent,
liquidated, unsecured debts of less than $360,475 and
noncontingent, liquidated, secured debts of less than
$1,081,400, or an individual with regular income and
such individual's spouse, except a stockbroker or a
commodity broker, that owe, on the date of the filing
of the petition, noncontingent, liquidated, unsecured
debts that aggregate less than $360,475 and
noncontingent, liquidated, secured debts of less than
$1,081,400 may be a debtor under chapter 13 of this
title.
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11 U.S.C. § 109(e) (amounts adjusted effective April 1, 2010).
The sole issue in this Motion for Summary Judgment is whether
Debtors owed, on April 22, 2010, noncontingent, liquidated,
unsecured debts that aggregate less than $360,475.
FACTS
Rombauer proposes 8 Undisputed Material Facts. 	Doc 66, p.2.
(“Facts R1-R8"). 	Debtors contested only Fact 3. 	The others are
deemed admitted under NM LBR 7056-1. 	And, Debtors’ objection to
Fact R3 is not really a statement that the Fact is disputed or a
citation to a contrary fact in the record; rather, it asks the
Court to read the language of a document carefully to determine
the true parties. 	Therefore, Fact 3 is deemed admitted also.
So, the Court adopts the following as undisputed:
R1. 	The debtors filed for bankruptcy relief under Chapter 13 on
April 22, 2010.
R2. 	Rombauer filed a proof of claim on July 16, 2010, for
$1,598,656.20 (the “Rombauer Claim”).
R3. 	Mr. Rottiers gave Rombauer a detailed proposal on June 20,
2007.
R4. 	The proposal was made by “Gerard Rottiers Consulting.”
R5. 	A copy of the proposal is attached to the Rombauer Claim.
R6. 	The proposal was signed by Gerard Rottiers individually.
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2Rombauer objected to “Debtors do not believe they have any
personal liability to Rombauer Vineyards, Inc.” 	as not being a
“fact”. 	The Court agrees. 	It is a “belief” which is not
properly in a summary judgment affidavit. 	It is also a legal
conclusion which they are not qualified to make.
Page -7-
R7. 	The down payment made by Rombauer, in the amount of
$464,340, was by a check dated June 21, 2007, payable to
Gerard Rottiers Consulting.
R8. 	Mr. Rottiers deposited the check into his personal checking
account.
In Debtors’ Response (doc 74, pp.3-7) they submit their
version of 32 additional Undisputed Material Facts, (“Facts D1-
D32") to which Rombauer responded (doc 79). 	Rombauer’s responses
(if any) will be dealt with in footnotes to those facts. 	The
Court finds the following additional facts are not disputed:
D1. 	A creditor’s meeting was scheduled, held and concluded in
this case on May 27, 2010.
D2. 	Debtors listed Rombauer Vineyards, Inc. as a creditor in
Schedule F of their Petition and designated such claim as a
“contingent” business debt.
D3. 2 	[Debtors] listed Rombauer Vineyards, Inc. as a creditor in
Schedule F of their bankruptcy petition as a “contingent”
business debt for informational and precautionary purposes
only, due to a demand letter from attorneys for Rombauer
Vineyards, Inc. dated June 24, 2009 (see attachment to Proof
of Claim #9 filed by Rombauer Vineyards, Inc.). 	This letter
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suggested that Gerard Rottiers, as agent of Gerard
Consulting, Inc., obtained $25,115.20 from Rombauer
Vineyards, Inc. for the purchase of spare parts through
misrepresentation.
Rombauer admits that it generally agrees with this Fact
(as restated by the Court), but disagrees as to amounts owed
and supports the disagreement with the affidavit of John
Cochennette.
D4. 	On June 4, 2010, Associated Winery Systems, Inc. filed a
Motion To Dismiss.
D5. 	On June 24, 2010, Debtors filed a Response to the Motion To
Dismiss filed by Associated Winery Systems, Inc.
D6. 	Proof Of Claim #9 was filed in this case on behalf of
Rombauer Vineyards, Inc. by its President, Koerner Rombauer
on July 16, 2010 as an unsecured claim in the amount of
$1,598,656.20.
D7. 	On July 16, 2010, Koerner Rombauer had knowledge of these
bankruptcy proceedings.
D8. 	On July 27, 2010, Debtors filed an Objection To Allowance Of
Claim #9 Filed By Rombauer Vineyards, Inc.
D9. 	On August 3, 2010, David Thuma, Esq. and Samuel Roybal, Esq.
filed an entry of appearance on behalf of the creditor,
Rombauer Vineyards, Inc.
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3Rombauer argues that Debtors’ Proposed Facts 15, 16, 18,
19, 20, 21, 23, 24, 25 and 26 all assert that the “PROPOSAL”
attached to Rombauer’s Proof of Claim was signed by an entity
“Rombauer Vineyards” without a corporate designation, so Rombauer
Vineyards, Inc. lacks standing and is a different entity that has
not filed a proof of claim. 	Rombauer again cites to the
Cochenette affidavit. 	The Court agrees that these facts are
disputed. 	Furthermore, 1) they are generally legal conclusions
(continued...)
Page -9-
D10. On August 6, 2010, Rombauer Vineyards, Inc. filed its
Joinder In Associated Winery Systems, Inc.’s Motion To
Dismiss.
D11. On August 11, 2010, Debtors filed their Response to Rombauer
Vineyards, Inc.’s Joinder In Associated Winery Systems,
Inc.’s Motion To Dismiss.
D12. On August 25, 2010, David Thuma, Esq. filed Rombauer
Vineyards, Inc.’s Response to The Debtors’ Claim Objection
on behalf of his client which states at paragraph 2 that the
basis of its claim is a contract between Rombauer Vineyards,
Inc. and Gerard Rottiers and that a copy of the contract is
attached to the Rombauer Proof of Claim and is self-
explanatory.
D13. The contract referred to in Rombauer Vineyards, Inc.’s
Response To The Debtors’ Claim Objection (Court Docket entry
#61) is the “PROPOSAL” referred to by Debtors herein.
D14. The deadline to file a Proof Of Claim in this case was
August 25, 2010.
D15. 3
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3(...continued)
and 2) the Proof of Claim speaks for itself.
4Rombauer disputes “and was accepted on July 10, 2007 by an
entity labeled as “Rombauer Vineyards.” 	Rombauer is correct that
the document speaks for itself. 	The real parties to the contract
will end up being a legal decision.
5Rombauer admits this fact, as long as it means that the
contract was between itself and Mr. Rottier. 	Otherwise, it
disputes the fact. 	The Court, however, finds that if there is a
binding contract, which is really not disputed, it binds the
parties whoever they are.
6Rombauer objects stating that this document speaks for
itself. 	It does, and this is what it says.
Page -10-
D16. See footnote 3.
D17. 4 	The “PROPOSAL” was prepared by Gerard Rottiers on June 20,
2007.
D18. See footnote 3.
D19. See footnote 3.
D20. See footnote 3.
D21. See footnote 3.
D22. 5 	Rombauer Vineyards, Inc. believes the “PROPOSAL” is a
binding contract between the parties to the “PROPOSAL.”
D23. See footnote 3.
D24. See footnote 3.
D25. See footnote 3.
D26. See footnote 3.
D27. 6 	The “PROPOSAL” which is included in the Rombauer
Vineyards, Inc. Proof Of Claim specifically states at page 7
that “[a]ll mechanical defective parts are warranted for a
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7Rombauer disputes Facts D28, D29, D30 and D31 “all of which
relate to debtor’s theory that Rombauer’s claim is in the nature
of a warranty claim” and cites Cochennette Affidavit ¶ 11 as the
source of the dispute. 	Rombauer Reply, doc 79, p.2. 	Paragraph
11 of the affidavit does not conflict with Facts D28, D29 or D30.
Rather, it states that the equipment never worked, that Mr.
Rottiers should have known that before selling it, and it
attempts to calculate an estimate of its losses. 	It makes no
reference to the delivery, installation, completion date, or the
time a claim was first made. 	Therefore, the Court deems Facts
D28, D29 and D30 to be undisputed. 	Paragraph 11 also does not
conflict with Debtors proposed Fact D31.
8The Court rejects Fact 31. 	Fact 31 is simply Debtors’
protestation that they owed nothing to Rombauer on their petition
date. 	That is a legal determination for the Court.
Page -11-
year after installation and there is a 90-day period for all
electrical components. 	This warranty doesn’t cover
mishandling of the machinery or breakage due to faulty
supplies as well as poor maintenance of the equipment.”
D28. 7 	All equipment purchased through the “PROPOSAL” was
delivered and installed as set out in the “PROPOSAL.”
D29. Installation of the equipment which is set out in the
“PROPOSAL” was completed on or before May 1, 2008.
D30. No claim was made by any entity within the warranty period
set out in the “PROPOSAL.”
D31. 8
D32. On October 11, 2010, Debtors filed a Motion for Summary
Judgment on Debtors' Objection to Allowance of Claim #9
Filed by Rombauer Vineyards, Inc.
OTHER FACTS
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Debtors have no priority debts on Schedule E. 	(Doc 11).
Schedule F lists $77,101 of unsecured non-priority debts.
Schedule F also lists AWS as contingent-in litigation,
unliquidated and disputed in an unknown amount and Rombauer as a
contingent liability-business debt in the amount of $25,115.20.
Id.
Eleven proofs of claim are filed in this case. 	Numbers 1,
2, 5, 9 and 10 are filed as secured claims. 	The other claims are
unsecured non-priority claims:
Claim 	Creditor 	Amount
3 	PRA Receivables Management 	$3,908.57
4 	Chase Bank USA, N.A. 	$10,798.37
6 	American Express Bank 	$193.49
7 	CR Evergreen, LLC 	$30,052.99
subtotal 	$44,953.42
8 	AWS 	$1,052,878.76
9 	Rombauer 	$1,598,656.20
total 	$2,696,488.38
The total of all claims other than AWS and Rombauer is
$44,953.42. 	If either of AWS or Rombauer’s claim count toward
the eligibility requirement, Debtors are ineligible.
The Court finds that both AWS’s and Rombauer’s claims are
unliquidated and do not count toward eligibility.
The term “liquidated” is not defined in the
Bankruptcy Code. However, it is well-settled that
whether a debt is “liquidated” turns on whether the
amount is “readily determinable.” ...
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The amount of debt is readily determinable only if
the process of determining the claim is fixed, certain,
or otherwise determined by a specific standard. 	See In
re Barcal, 213 B.R. 1008, 1014 (8th Cir. BAP 1997). 	On
the other hand, if the value of the claim depends on a
“future exercise of discretion, not restricted by
specific criteria, the claim is unliquidated.” 	See
Mazzeo v. United States (In re Mazzeo), 131 F.3d 295,
304 (2d Cir.1997) (internal quotation marks omitted).
...
Kanke v. Adams (In re Adams), 373 B.R. 116, 119-20 (10 th Cir. BAP
2007). 	The BAP’s concept of unliquidated is identical to that
in other jurisdictions. 	See, e.g., In re Doyle, 340 B.R. 381,
384 (Bankr. D. Or. 2006):
A debt is liquidated if “the amount of the debt is
readily determinable.” 	In re Slack, 187 F.3d 1070,
1073 (9th Cir. 1999). 	Ready determination depends on
“whether the amount due is fixed or certain or
otherwise ascertainable by reference to an agreement or
by a computation.” 	In re Nicholes, 184 B.R. 82, 89
(9th Cir. BAP 1995). 	“Whether a debt is subject to
‘ready determination’ depends on whether the amount is
easily calculable or whether an extensive hearing is
needed to determine the amount of the debt.” 	In re Ho,
274 B.R. 867, 873 (9th Cir. BAP 2002).
See also In re Knight, 55 F.3d 231, 235 (7 th Cir. 1995)(“[T]he
cases uniformly provide the method for determining whether a debt
is liquidated: If the amount of a claim has been ascertained or
can readily be calculated, it is liquidated.”)(Citation and
internal punctuation omitted.)
Debtors do dispute that they have any liability on either
Rombauer’s claim or AWS’s claim. 	However, whether a claim is
disputed is not relevant as to eligibility.
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While a minority of courts hold otherwise, the
overwhelming body of precedent holds that a dispute
regarding liability on a claim is insufficient to
render a claim unliquidated. 	See id. at 304–05 (citing
United States v. Verdunn, 89 F.3d 799, 802 n. 9 (11th
Cir.1996)) (“Most courts have concluded ... that
disputed debts are included in the calculation of the
amount of debt [for Chapter 13] eligibility
purposes.... [T]he vast majority of courts have held
that the existence of a dispute over either the
underlying liability or the amount of a debt does not
automatically render the debt either contingent or
unliquidated.”). ...
...
We believe that the majority approach is the
better reasoned one. Otherwise, a debtor, simply by
characterizing certain claims as disputed, could ensure
his eligibility to proceed under Chapter 13 in
circumstances that Congress intended to exclude from
that chapter.
Adams, 373 B.R. at 120.
Adams further discusses the procedure the Court should apply
in making the eligibility determination.
In considering eligibility, it is appropriate for
a court to “rely primarily upon a debtor's schedules
and proofs of claim, checking only to see if these
documents were filed in good faith.” 	Barcal, 213 B.R.
at 1015 (citing Comprehensive Accounting Corp. v.
Pearson (In re Pearson), 773 F.2d 751, 756 (6th
Cir.1985)). “In so doing, however, the court should
neither place total reliance upon a debtor's
characterization of a debt nor rely unquestionably on a
creditor's proof of claim, for to do so would place
eligibility in control of either the debtor or the
creditor.” 	Barcal, 213 B.R. at 1015 (citing In re
Madison, 168 B.R. 986, 989 (D. Haw.1994)). 	Therefore,
at a hearing on eligibility, the court should “canvass
and review the debtor's schedules and proofs of claim,
as well as other evidence offered by a debtor or the
creditor to decide only whether the good faith, facial
amount of the debtor's liquidated and non-contingent
debts exceed statutory limits.” 	Barcal, 213 B.R. at
1015.
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Page -15-
Id.
Although not specifically stated in Adams, the above
quotation suggests that the Court should not conduct a full blown
trial that authenticates each and every debt listed on a debtor’s
schedules and the proofs of claim filed. 	This is the summary
approach suggested by other courts also. 	See In re Odette, 347
B.R. 60, 62-63 (Bankr. E.D. Mich. 2006):
[T]he nature of the threshold eligibility issue is such
that it should not be one that is lengthy, involved, or
so deeply evidentiary as to go to the point of having
the Court substantially dispose of the question of
whether or not the Debtors or either of them are
ultimately and legally liable for each of the debts the
existence or amount of which may have some bearing on
the eligibility issue.
See also In re Arcella-Coffman, 318 B.R. 463, 476-77 (Bankr. N.D.
Ind. 2004):
The focus of a proceeding under 11 U.S.C. § 109(e) is
not to liquidate claims, ... The purpose is to
determine, relatively quickly and relatively
inexpensively (in terms of both monetary expense for
the parties and expenditure of time by the parties and
by the Court), what of the debtor's debts are
“liquidated” and “noncontingent”, and of debts
fulfilling those criteria, the dollar amount that are
both secured and unsecured. 	As the ultimate
fact-finder, the Court has discretion as to the manner
in which this exploratory process will take place and
the weight to be given evidence pertinent to the
eligibility issues. 	This inquiry is not in the nature
of a B.R. 7056 summary judgment proceeding: the raising
of a genuine issue of material fact by a party does not
preclude the Court's determination of the contested
matter, based upon the record before it, without
further evidentiary proceedings. 	The Court deems it to
be imperative that procedures be employed which avoid
evidentiary hearings at which judging the credibility
of witnesses is necessary to determine the nature and
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Page -16-
amount of debts, especially in circumstances in which
statements in the debtor's schedules allow the Court to
circumstantially determine both the categorization and
amount of debts for the purpose of the § 109(e)
analysis.
ROMBAUER’S CLAIM IS UNLIQUIDATED
In Rombauer’s Motion for Summary Judgment (doc 66) it argues
that its claim against the Debtors is a contract claim that is
subject to ready determination and can be easily ascertained or
calculated. 	It contrasts its contract claim with a tort or
quantum meruit claim, which it correctly argues are generally
unliquidated. 	Arcella-Coffman, 318 B.R. at 473. 	Rombauer states
that its claim consists of four categories: 1) $833,301 loss
sustained; 2) $217,080 for the difference between price paid to
the Debtors and the amount recouped when some of the equipment
was sold, 3) $523,160 as a refund for returning the remaining
equipment, and 4) $25,115.20 paid to the Debtors to purchase
parts that it never received. 	The Court finds that the first
three categories are not liquidated.
First, the Proposal, dated June 20, 2007, limits warranty
coverage to one year and requires proper maintenance of the
equipment. 	Doc 52-1, p.11. 	Rombauer’s Proof of Claim includes a
letter from its attorney that shows the issue of warranty
coverage has been raised:
My client completely disagrees with the
accusations in Corfill’s May 6 th letter to my client
that the repairs to the filler were needed because my
client’s personnel “ha[d] incorrectly carried out the
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Page -17-
vapor sanitizing process on the machine ...” ... We
believe these claims of misuse are merely pretexts to
attempt to divert us from the real issue, that the
filler was not suitable for its intended use and
violated all express and implied warranties.
A trier of fact will need to determine if this is a warranty case
and apply warranty law.
Second, the date on that letter is June 24, 2009, well after
the one year period set out in the proposal. 	A trier of fact
would need to determine if the claims were timely.
Third, the Adams case teaches that lost business claims are
not to be considered as liquidated. 	Adams, 373 B.R. at 122.
Fourth, a purchaser of equipment is not automatically
entitled to recoup the difference between what it paid for an
item and what it sold it for after several years of use. 	A trier
of fact would at least need to determine the value derived from
the equipment before disposal, if this remedy were even available
after a warranty period. 	Similarly, a purchaser does not
automatically get to return used equipment for the purchase
price.
The fourth category of damages, the $25,115.20 paid to the
Debtors is liquidated. 	Even though this amount would not bring
the Debtors over the eligibility limit, the Court will not
include the $25,115.20. 	That is because this claim against the
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9“A debt is considered non-contingent where all events that
cause liability to arise occur pre-petition. It is only where
some future event must transpire before liability arises that a
debt is contingent.” 	Adams, 373 B.R. at 119-20 (citation
omitted.)
Page -18-
Debtors is contingent 9 on a future finding by a court that the
corporate veil should be pierced. 	See Holland v. DePaulis (In re
DePaulis), 2008 WL 4446999 (W.D. N.C. 2008)(Affirming bankruptcy
court’s ruling that an individual was contingently liable for
corporate debt before veil was actually pierced.)
In summary, the Court finds that the entire Rombauer claim
is not included in the eligibility total. 	Next, the Court turns
to the AWS claim.
AWS’S CLAIM IS UNLIQUIDATED
AWS’s claim consists of a proof of claim and the attached
affidavit of Antonio Prospero, a principal in Prospero Equipment
Corporation of California, d/b/a AWS. 	His affidavit states that
Mr. Rottiers was a senior vice president of AWS and attended
trade shows to meet buyers. 	Because Mr. Prospero lives in New
York, Debtor took charge of the California operations. 	At a
January 2007 trade show a number of sales leads developed. 	Mr.
Propsero made many inquiries to Debtor after the trade show, but
was told nothing was happening with the leads. 	Then, in May
2007, Debtor left AWS’s employment. 	Mr. Prospero and his son
found papers and computer records that Debtor had been soliciting
AWS’s prospects and existing customers to enter contracts with a
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new business that Debtor was forming. 	Mr. Prospero also asserts
that Debtor took assets of AWS and sold them, keeping the money.
Mr. Prospero further states that in his business there is a
40% markup on equipment he sells. 	Therefore, there would be
$400,000 profit on a $1,000,000 sale. 	He alleges that the
information he has shows that AWS lost $1,036,701.76 of profit.
This is a tort claim. 	It could be based on conversion,
interference with contractual relations, interference with
prospective contractual relations, even possibly prima facie
tort. 	It is not, however, a liquidated claim for bankruptcy
purposes.
DECISION
Debtor did not file a cross-motion for summary judgment on
the issue of eligibility under section 109(e). 	However,
The weight of authority is that summary judgment
may be rendered in favor of the opposing party even
though he has made no formal cross-motion under rule
56. And while an appellate court should not grant
summary judgment in favor of the nonmoving party where
the movant has not had the opportunity to present the
applicable facts, if the facts were fully developed at
the summary judgment hearing so that the court of
appeals can determine that the nonmoving party clearly
was entitled to a judgment as a matter of law, an entry
of judgment for the nonmoving party may be proper if
there is no procedural prejudice to the moving party.
Doña Ana Mutual Water Consumers Ass’n v. City of Las Cruces, New
Mexico, 516 F.3d 900, 912 (10 th Cir. 2008)(quoting Dickeson v.
Quarberg, 844 F.2d 1435, 1444 n. 8 (10th Cir. 1988)).
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In this case, the Court finds that there is no genuine issue
of material fact that both moving creditors’ claims are
unliquidated and excludable from the section 109(e) eligibility
calculation. 	The Court finds that both parties asked the Court
to dismiss on this ground (AWS’s motion and Rombauer’s joinder),
and that both parties sought summary judgment (Rombauer’s motion
and AWS’s joinder), so they knew or should have known that all
evidence to eligibility was ripe for review. 	The Court will
therefore enter summary judgment for Debtors and against Rombauer
and AWS on the issue of eligibility. 	A separate Order will
enter.
Honorable James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: 	April 12, 2011
Copies to:
Donald Provencio
1721 Carlisle Blvd NE
Albuquerque, NM 87110-5621
Kelley L. Skehen
625 Silver Avenue SW
Suite 350
Albuquerque, NM 87102-3111
Paul M Fish
PO Box 2168
Albuquerque, NM 87103-2168
Samuel I Roybal
PO Box 1966
Albuquerque, NM 87103-1966
Stephanie L Schaeffer
Thuma & Walker, P.C.
500 Marquette NW Suite 650
Albuquerque, NM 87102
David T Thuma
500 Marquette Ave NW Ste 650
Albuquerque, NM 87102-5309
Office of the United States
Trustee
PO Box 608
Albuquerque, NM 87103-0608
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