Francis Tucker v. Ohio Valley Amusement Company

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cv-00038-FPS,5:09-bk-00914 Copies to all parties and the district court/agency. [998980708].. [11-2341]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2341

In Re:

FRANCIS CLIFFORD TUCKER,
Debtor.

------------------------------FRANCIS CLIFFORD TUCKER, Debtor,
Debtor - Appellant,
v.
OHIO VALLEY AMUSEMENT COMPANY, Creditor;
Creditor; ALEXAS INTERTAINMENT, LLC, Creditor,

ALLAN

HART,

Creditors - Appellees.

Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cv-00038-FPS; 5:09-bk-00914)

Submitted:

October 24, 2012

Decided:

November 14, 2012

Before DAVIS and FLOYD, Circuit Judges, and Catherine C. EAGLES,
United States District Judge for the Middle District of North
Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

Paul J. Harris, Wheeling, West Virginia, for Appellant. Steven
L. Thomas, KAY CASTO & CHANEY PLLC, Charleston, West Virginia,
for Appellees.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Petitioning creditors-appellees, Ohio Valley Amusement
Company,

Alexas

Intertainment,

LLC,

and

Al

Hart,

filed

an

involuntary bankruptcy action under Chapter 7 of the Bankruptcy
Code (“the Code”) pursuant to 11 U.S.C. § 303 against debtorappellant Francis C. Tucker on April 27, 2009, in the United
States

Bankruptcy

Virginia.

Court

for

the

Northern

District

of

West

After Tucker filed an answer and two unsuccessful

motions to dismiss, the bankruptcy court held a trial on the
contested

petition.

bankruptcy
satisfied

court
their

established

that

At

the

found

that

burden

under

each

of

the

conclusion
the
11

of

the

petitioning
U.S.C.

three

§

trial,

the

creditors

had

303(b)(1),

creditors

held

having

qualified

claims that were not contingent, not the subject of a bona fide
dispute, and entailed values that, in the aggregate, satisfied
the statutory threshold.

The bankruptcy court further found

that the petitioning creditors satisfied their burden under 11
U.S.C. § 303(h)(1) to establish that Tucker was generally not
paying his debts as they became due.

Accordingly, on November

22, 2010, the bankruptcy court entered an Order for Relief on
the petition.
Tucker filed a timely appeal of the bankruptcy court’s
order to the district court.

On October 31, 2011, the district

court affirmed the bankruptcy court’s Order for Relief.
noted a timely appeal to this Court on November 29, 2011.
3

Tucker

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After the case was calendared for oral argument, the
parties moved to submit the appeal on the briefs and we granted
the motion.

Having carefully reviewed the briefs, record and

applicable law, we affirm for the reasons stated by the district
court in its thorough opinion.

See In Re: Francis Clifford

Tucker, 2011 WL 5192801 (N.D. W. Va. Oct. 31, 2011).
AFFIRMED

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