Bank of America, N.A. v. Caruk Holdings Arkansas, LLC et al

Filing 51

ORDER granting 50 Motion to Reopen Case; Case reopened, as set forth. Signed by Honorable Jimm Larry Hendren on December 5, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BANK OF AMERICA, N.A.

PLAINTIFF

v.

Civil No. 11-2096

CARUK HOLDINGS ARKANSAS, LLC;
DENISE L. CARUK; and
GORDON C. CARUK

DEFENDANTS

O R D E R
Now

on

this

5th

day

of

December

2012,

comes

on

for

consideration plaintiff's Status Report and Motion to Reactivate
Case, Fix Deadlines, and Reset Dates (document #50). The Court,
being well and sufficiently advised, finds and orders as follows:
1.

Plaintiff Bank of America, N.A. (BANA) filed this action

on May 27, 2011, seeking foreclosure on real property held by
defendant Caruk Holdings. Defendants Gordon and Denise Caruk (the
Caruks) are personal guarantors of a Loan Agreement in favor of
BANA, which is secured by the real property at issue.
2.

On

August

27,

2012,

the

Caruks

filed

a

voluntary

petition seeking bankruptcy protection under Chapter 11 of the
United States Bankruptcy Code (11 U.S.C. § 101 et seq.) in the
United States Bankruptcy Court for the District of Arizona, docket
number 2:12-bk-19096-SSC.
3.

On August 28, 2012, the Court ordered the Caruks to pay

BANA's reasonable expenses, including attorneys' fees, caused by
their failure to appear for their June 27, 2012 depositions

(document #43). At that time, neither BANA nor the Court was aware
of the Caruks' bankruptcy proceedings.
4.

Also on August 28, 2012, the Court entered a Memorandum

Opinion and Order granting BANA summary judgment against defendant
Caruk Holdings Arkansas, LLC (document #44). The Court further
ordered BANA to seek summary judgment from the Caruks within ten
days of the Memorandum Opinion and Order. Again, neither BANA nor
the Court was aware of the Caruks' bankruptcy proceedings at the
time the order was entered.
5.

On August 29, 2012, BANA filed a Notice and Suggestion

of Bankruptcy Filing by Defendants Denise L. Caruk and Gordon C.
Caruk, informing the Court of the Caruks' bankruptcy proceedings.
6.

In light of the Caruks' bankruptcy proceedings, the

Court ordered an administrative termination on October 9, 2012
(document #49), without prejudice to the right of the parties to
reopen the case for good cause shown, for entry of any stipulation
or order, or for any other purpose required to obtain final
determination of this litigation.
7.

Since that time, BANA has sought and obtained a relief

from the automatic stay in the Caruks' bankruptcy proceedings, as
evidenced by a copy of the Arizona Bankruptcy Court's November 14,
2012 order finding that
[a]ll stays, injunctions against lien enforcement,
including the automatic stay under 11 U.S.C. Section
362(a), are hereby terminated with respect to Bank of
America, N.A.'s interest in and to the subject Real
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Property located in Mansfield, Sebastian County,
Arkansas, commonly known as 3002 West Highway 96,
Mansfield, AR 72944.
The Arizona Bankruptcy Court's order was entered nunc pro tunc as
of August 27, 2012, the date the Caruks filed their bankruptcy
petition.
8.

Based on the foregoing, the Court finds that this case

should be reopened for good cause shown. The automatic stay, for
which the administrative termination was ordered, has been lifted
and is no longer a bar to BANA's proceeding in this litigation.
9.

Because the Arizona Bankruptcy Court's order was entered

nunc pro tunc as of August 27, 2012, the Court finds that its
Order (document #43) and Memorandum Opinion (document #44) entered
on August 28, 2012 remain valid and enforceable. BANA will be
allowed ten (10) days from the date of this Order to comply with
the directives of the August 28, 2012 orders. Specifically, BANA
is directed to file the following within ten (10) days:
*

an

affidavit

detailing

its

reasonable

expenses,

including attorneys' fees, caused by the Caruks' failure to appear
for their depositions on June 27, 2012; and
*

a motion seeking summary judgment against the Caruks.

10.

An amended scheduling order setting a new trial date

will be entered under separate order.
IT IS THEREFORE ORDERED that BANA's Motion to Reactivate
Case, Fix Deadlines, and Reset Dates (document #50) is granted,

-3-

and this case is hereby reopened.
IT IS FURTHER ORDERED that BANA file the following within ten
(10) days of this order:
*

an

affidavit

detailing

its

reasonable

expenses,

including attorneys' fees, caused by the Caruks' failure to appear
for their depositions on June 27, 2012; and
*

a motion seeking summary judgment against the Caruks.

IT IS SO ORDERED.

/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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