Opinion
Bankruptcy Case No. 03-42400, Adversary No. 08-8032.
June 24, 2009
Monte Gray, SERVICE, SPINNER GRAY, Pocatello, Idaho, Attorney for R. Sam Hopkins, Trustee, Plaintiff.
Stephen J. Blaser, BLASER, SORENSEN OLESON, Blackfoot, Idaho, Attorneys for FFIC Grower Corp.
Jay A. Kohler, Idaho Falls, Idaho, Pro Se Defendant.
John O. Avery, Idaho Falls, Idaho, Pro Se Defendant.
Nicholas Thomason and Sandra Thomason, and Byron T. Thomason and Marilynn Thomason, Rexburg, Idaho, Pro Se Defendants.
MEMORANDUM OF DECISION
I. Introduction
In a prior adversary proceeding, the Court determined that a certain parcel of real estate referred to as the Agren property is subject to fractional ownership: Thomason Farms, Inc. ("TFI") owned an undivided two-thirds interest in the Agren property; and the remaining one-third interest became property of the bankruptcy estate of Greg and Diana Thomason. The Court ordered that the Agren property should be sold in the bankruptcy case free and clear of TFI's co-ownership interest therein, as provided in § 363(h). TFI and several of the individual Thomasons appealed that decision to the Bankruptcy Appellate Panel of the Ninth Circuit, which affirmed the Court's decision in all respects. See Adv. Proc. No. 04-6134, Docket No. 291.
A full discussion of the Court's findings and conclusions with respect to the Agren property is contained in its memorandum of decision and final judgment. Adv. Proc. No. 04-6134, Docket Nos. 138, 204.
Unless otherwise indicated, all chapter, section, and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101- 1330 and to the Federal Rules of Bankruptcy Procedure, Rules 1001-9036, in effect prior to the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), Pub.L. 109-8, 119 Stat. 23 (Apr. 20, 2005).
All references to "the Thomasons" include Byron, Sandra, Nicholas, and Marilynn, unless otherwise indicated.
Thereafter, on November 14, 2007, the Court granted the request of the chapter 7 trustee R. Sam Hopkins ("Trustee") to sell the Agren property for $990,000 cash, free and clear of all liens and interests therein. Docket No. 1, Ex. A. The Court's sale order authorized the closing agent to pay all closing costs, real property taxes, and the realtor's commission from the proceeds of the sale and to disburse the balance to Trustee to hold pending further order of the Court. Id.
The Agren property was indeed sold, and the net proceeds were disbursed to Trustee. On May 27, 2008, Trustee initiated this adversary proceeding to determine how to distribute the proceeds from the sale of the Agren property as among those parties claiming an interest or lien in the property. Following a three day trial, the Court took the issues under advisement for decision. Having now reviewed the evidence and testimony in the record, the arguments of the parties, and the applicable law, the Court disposes of the issues below.
This Memorandum constitutes the Court's findings of fact and conclusions of law. Rules 7052.
II. Facts
Prior to the sale of the Agren property, Trustee obtained a standard commitment for title insurance. Ex. 103. The title report for the commitment included a number of exceptions for various encumbrances which had been previously recorded concerning the property. Trustee named each of the individuals and entities identified in the exceptions as defendants in this adversary proceeding. These exceptions and parties include the following:
• A federal tax lien in the principal amount of $3,349.80 against taxpayer TFI, which was recorded on August 18, 1997;
• A lis pendens recorded by TFI on June 9, 2003 relating to Adversary Proceeding No. 03-6116 pending before the United States Bankruptcy Court for the District of Idaho;
• A judgment against TFI and in favor of Tri-River Chemical Co., Inc., d.b.a. UAP Northwest in the amount of $264,605.78 which was recorded on February 3, 2004;
• A lis pendens recorded by TFI on February 18, 2004 relating to Case No. CV-04-66 pending before the Idaho district court in Madison County;
• A mortgage dated April 16, 2004 granted by TFI to the Thomasons to secure an original indebtedness of unspecified amounts;
• A federal tax lien in the principal amount of $8,135.46 against taxpayer TFI which was recorded on September 22, 2005;
• A judgment lien against TFI and in favor of FFIC Grower Corp. ("FFIC") in the principal amount of $17,451,44 which was recorded on October 21, 2005;
Counsel for FFIC explained that prior to entering the judgment, the state court reduced the total amount of the judgment by $500, as evidenced by the hand written notation on the judgment. See Ex. 602. The abstract of judgment that was recorded, however, did not contain a similar reduction. See Ex. 603.
Counsel for FFIC explained that prior to entering the judgment, the state court reduced the total amount of the judgment by $500, as evidenced by the hand written notation on the judgment. See Ex. 602. The abstract of judgment that was recorded, however, did not contain a similar reduction. See Ex. 603.
• A notice of claim of attorney's lien in the amount of $35,000 recorded by Jay Kohler ("Kohler") on February 7, 2006;
• A grazing permit which was granted by Double T Farming and Ranching, Inc., to Evan Wise which was recorded on August 7, 2006;
• A notice of claim of attorney's lien in the amount of $41,619.31 which was recorded by John Avery ("Avery") on July 9, 2007.
See Ex. 103.
When the sale of the Agren property closed, the closing agent paid all sale costs, real estate taxes, and the realtor's commission as authorized by the Court's prior order. The balance of the sale proceeds, amounting to $929,310.24, were paid over to Trustee. In an order entered on August 1, 2008, the Court authorized Trustee to bifurcate the remaining sale proceeds. See Bankr. Case No. 03-42400, Docket No. 239. In this order, one-third of the proceeds were to be paid to Trustee for distribution in the bankruptcy estate of Greg and Diana Thomason. Trustee was ordered to hold the remaining two-thirds of the proceeds in trust pending further order of the Court. Id.
III. Discussion and Disposition
A. Defaulted Parties
On August 29, 2008, Trustee applied for entry of Clerk's default pursuant to Rule 7055 as against Defendants TFI, Evan Wise, Tri-River Chemical Co., Inc., FFIC, and Double T Farming and Ranching, for failure to file a responsive pleading. The default was entered on September 2, 2008. Docket No. 18. Thereafter, the Court set aside the Clerk's default with respect to FFIC, which filed a tardy answer. See Docket Nos. 27, 28.
At the commencement of the trial, Trustee moved for the entry of a default judgment against all parties that had failed to respond to the complaint. The Court reserved ruling on that motion. Trustee also requested that a default judgment be entered against Byron and Sandra Thomason, who did not personally appear on the first day of trial. The Court denied that request. At the conclusion of the trial, the Court announced its intention to enter a enter default judgment against all parties that did not appear, with the exception of Sandra Thomason who had appeared in writing, although she was not personally present in the courtroom. Accordingly, Trustee is entitled to relief as requested in his complaint as against Defendants TFI, Evan Wise, Tri-River Chemical Co., Inc., and Double T Farming and Ranching. The Court's judgment shall order that those parties receive no payments from the Agren property sale proceeds.
B. Federal Tax Liens
In its pretrial order dated October 22, 2008, the Court directed all parties to exchange exhibits and witness lists, and to file a pretrial memorandum, at least seven days prior to trial. Docket No. 29. The IRS did not file a pretrial brief, but it did file an exhibit list on March 20, 2009, to which it attached a copy of a proposed exhibit. This solitary exhibit was marked as Ex. 900, and bears the title "Filed Tax Liens." Docket No. 55. The day before trial, the IRS and Trustee agreed in a document filed with the Court that this exhibit could be admitted as evidence. Docket No. 58. That agreement contains only the signatures of counsel for the IRS and Trustee. The agreement was not approved by any of the other parties or attorneys appearing in the proceeding, nor does it appear that they were participants in the agreement.
The IRS did not appear at the trial, and the Court proceeded with the presentation of evidence in its absence. At the close of Trustee's case in chief, and in accordance with its pretrial order regarding the presentation of evidence, the Court asked again if there was any appearance on behalf of the IRS. There was no response. The Court deemed the IRS's failure to appear as a waiver of its right to present evidence and testimony. See Minutes of Trial, Docket No. 61. The evidentiary presentation continued with the other parties who had appeared, and at the conclusion thereof, the evidentiary record was deemed closed. As a result, Ex. 900 was never offered nor admitted into the evidentiary record.
Even so, in each of their respective arguments, Trustee, Kohler, and Avery concede that both of the IRS's recorded liens are valid secured liens with first and second priority positions. The Thomasons generally contest the validity of the Agren property sale and many of the liens recorded as to that property, but have not specifically challenged the validity or priority of the IRS's liens. Taking a slightly different approach, FFIC argues that because it did not appear, "the Court has entered default against [the IRS]" and therefore it is not entitled to a priority position with respect to these proceeds. Docket No. 67.
FFIC is almost correct. Although the Court announced its intention to enter a default judgment against all parties that did not appear, it has not yet done so. However, that judgment will be entered in connection with this decision. And while most of the appearing parties are willing to concede the validity of the IRS's liens and its position with respect to priority, there was no evidence introduced in the record to support payment of these tax liens. The IRS was given sufficient opportunity to appear and protect its interest, but it chose not to do so. Filing a stipulation with the Plaintiff on the day before trial in which seven of the parties that appeared in this action have not joined is inadequate to constitute a proper offer to admit the IRS exhibit into evidence. After all, it is the Court's duty to determine the admissibility of evidence, not the parties', and all of the parties claiming an interest in these funds, not merely Plaintiff, should have an opportunity to object to a documentary exhibit. Based upon the record before the Court, the IRS is not entitled to share in any distribution made from the TFI two-thirds portion of the proceeds at this juncture. C. The Thomason Mortgage
To address its failure to participate at trial to prove up its claim, upon proper request, the Court may be willing to reconsider this ruling, and order that the taxes allegedly secured by the recorded IRS liens be paid. However, if it seeks reconsideration and payment, the Court would recommend that IRS obtain the consent of all parties claiming an interest in the sale proceeds appearing in this action. In the alternative, IRS can look to TFI's other assets for satisfaction of its tax claims.
The individual Thomasons claim to hold an unsatisfied mortgage on the Agren property which allegedly secures debts due and owing to them by their company, TFI. This mortgage is evidenced by a document entitled "Real Property Mortgage and Chattel Property Lien." Ex. 102. It was signed by Nicholas and Byron Thomason on behalf of TFI as mortgagor, and by each of the Thomasons as mortgagees on April 17, 2004. Id. It was recorded in Madison County on April 19, 2004. Id.
Trustee contends this mortgage is legally deficient and is therefore invalid. The Thomasons, of course, dispute this argument. The Court agrees with Trustee.
FFIC and Avery concur with Trustee and advance similar arguments urging the invalidity of the purported mortgage. Kohler has taken no position with respect to this mortgage.
In Idaho, a mortgage is a form of contract, and can only be created by a writing, executed with all of the formalities required to convey real property. Idaho Code § 45-902. The general requirements for a conveyance of real property are outlined in the Idaho Code, which provides:
A conveyance of an estate in real property may be made by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing. The name of the grantee and his complete mailing address must appear on such instrument.
Idaho Code § 55-601. See also Chavez v. Barrus, 192 P.3d 1036, 1044 (Idaho 2008) (endorsing this general rule). Thus, for a mortgage to be valid, it must be in writing, subscribed by the mortgagor, or by his agent, and include the name of the mortgagee and his complete mailing address.
The document at issue in this case is signed by both Nicholas and Byron Thomason as president and secretary of TFI, respectively. As such, it clearly satisfies the first requirement that the instrument be subscribed by the mortgagor or his agent. However, the latter requirement under the statute is not satisfied. Although each of the Thomasons also signed the document, they did not include their complete mailing addresses on the instrument, nor did they incorporate them by reference to some other document. As such, this mortgage instrument fails to comply with the requirements under Idaho law and is therefore invalid.
In addition to this deficiency, to the extent the document is a contract between TFI and the Thomasons, it lacks several essential terms. The amount of the debt is not identified, and with the exception of the notation that the debt is "due and owing," there are no repayment terms. Because a mortgage is subject to the statute of frauds, gaps in essential terms cannot be filled by parol evidence. Lawrence v. Jones, 864 P.2d 194, 197 (Idaho Ct. App. 1993). A contract must be complete, definite and certain in all its material terms, or contain provisions which are capable in themselves of being reduced to certainty. Id., citing Giacobbi Square v. PEK Corp., 670 P.2d 51, 53 (Idaho 1983).
Because the Court finds the Thomasons' mortgage to fatally imprecise and vague, it is invalid and does not entitle them to receive a distribution from the proceeds of the Agren property. D. FFIC's Judgment Lien
The Court had previously held that, under state law, this mortgage also did not attach to the one-third interest in the Agren property owned by Greg and Diana Thomason, and now their bankruptcy estate. See Memorandum of Decision at 66-67, Adv. Proc. No. 04-6134, Docket No. 138.
In 2005, FFIC filed a complaint against TFI in state court to collect an open account. TFI failed to appear at a pretrial conference, and on October 11, 2005, the court entered a default judgment against TFI and in favor of FFIC in the amount of $16,951.44. Ex. 602. The judgment was to accrue interest at the statutory rate of 8.375% per annum. An abstract of this judgment was recorded by FFIC's counsel in Madison County on October 21, 2005. Ex. 603.
Pursuant to Idaho Code § 10-1110, upon recordation of an abstract, a judgment becomes a lien upon all real property owned by the judgment debtor, in this case TFI, in the county. A lien recorded in this matter continues in effect for five years from the date of the judgment. Idaho Code § 10-1110. At trial, none of the parties effectively challenged the validity of FFIC's lien. The Court concludes that FFIC holds a valid lien that attaches to TFI's interest in the sale proceeds of the Agren property. FFIC's lien is prior in time to all other liens on the property, and the full amount due on the judgment should be paid by Trustee from the sale proceeds.
E. Attorney's Charging Liens
The Thomasons challenge the liens of two attorneys who claim liens on the Agren property sale proceeds.
The Thomasons retained Kohler and Avery to represent them and TFI at different stages in this seemingly endless litigation in this bankruptcy case. However, both Kohler and Avery have long since withdrawn as counsel of record. They allege that their former clients failed to pay them in full for their services; they now seek to recover the balance due from the sale proceeds. Each recorded an attorney's charging lien which, they argue, attached to TFI's interest in the sale proceeds of the Agren Property.
The statute upon which the attorneys rely is Idaho Code § 3-205, which in pertinent part provides:
From the commencement of an action, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client's favor and the proceeds thereof in whosoever hands they may come[.]
Idaho Code § 3-205. This statute recognizes that a charging lien in favor of an attorney may attach to the client's cause of action to secure the payment of attorneys' fees incurred by the attorney in procuring benefits for his client. In re Secaur, 83 I.B.C.R. 175, 176 (Bankr. D. Idaho 1983); Skelton v. Spencer, 625 P.2d 1072, 1078 (Idaho 1981). Interpreting this statute, the Idaho Supreme Court explained:
The law is well settled that an attorney in asserting a charging lien is entitled to recover against sums which his efforts have brought forth. Variously phrased, the intent of the law on this point is to allow the attorney an interest in the fruits of his skill and labors. The lien secures his right to compensation for obtaining the recovery or "fund" for his client. Of course, where the attorney's efforts are sterile, there would be nothing against which the lien right could be asserted, but where he has produced a fund, he has an equitable interest therein recognized by the lien statute and relevant case law.
Skelton, 625 P.2d at 1078. The court then set forth five distinct requirements for the establishment of a valid charging lien:
(1) [T]hat there is a fund in court or otherwise available for distribution on equitable principles, (2) that the services of the attorney operated substantially or primarily to secure the fund out of which he seeks to be paid, (3) that it was agreed that counsel look to the fund rather than the client for his compensation, (4) that the lien claimed is limited to costs, fees or other disbursements incurred in the litigation by which the fund was raised and (5) that there are equitable considerations which necessitate the recognition and application of the charging lien.
Id. at 1079 (internal citation omitted).
Two years after Skelton was decided, the Idaho Supreme Court recognized that an attorney's lien could arise even in situations in which no "fund" was created by the attorney's efforts. See Frazee v. Frazee, 660 P.2d 928 (Idaho 1983). However, in those cases, the Supreme Court recognized that "`[t]he equitable source of the claimed charging lien necessitates that an attorney take affirmative steps in an adjudicative process to perfect and reduce his lien to a judgment or order of the court." Id. at 931. The court clarified that "[a] charging lien is only brought about by some affirmative act of the party asserting the lien in reducing it to a judgment or order of the court." Id.
This Court, relying upon the state court case law, has also previously discussed the limited circumstances under which an attorney's charging lien will be enforced:
If the cause of action results in a judgment or settlement, i.e., creation of a "fund," and if that fund was the agreed upon source of payment of the fees (such as in a contingency fee arrangement), then a court with access to that fund may recognize the lien as an equitable matter in distributing the fund to parties claiming interests therein. If the five elements of Skelton do not exist, and the attorney is claiming a lien on property other than a "fund" which he helped create and to which it was agreed he would look for compensation, he must undertake an adjudicative process to "perfect and reduce his lien to a judgment or order of the court." A failure to do so, according to the [Idaho] court, raises due process implications.
In re Secaur, 83 I.B.C.R. 175, 177-78 (Bankr. D. Idaho 1983) (emphasis in original; internal citation omitted).
Unfortunately, in their arguments in their briefs, Kohler and Avery gloss over the requirements laid down in Skelton and Frazee. Both seem to suggest that, simply because the Agren property was associated with the multi-faceted litigation occurring in this Court, there is a basis for them to claim an enforceable charging lien in its sale proceeds. The Court respectfully disagrees.
Neither of these liens purport to attach only to the Agren property and its proceeds. Avery argues that in addition to the Agren property, his lien attaches to the Teton Pastures property. Kohler argues his lien attaches to the Agren and Teton Pasture properties, as well as to two other parcels that were involved in the litigation.
1. The Skelton requirements are not satisfied.
In this case, Trustee sought and received approval from the Court to sell the Agren property, and is currently holding the bulk of those sale proceeds in trust, pending further order of the Court. In a general sense, then, there is a "fund" available for distribution by order of this Court. However, the Court disagrees that these proceeds fall within the "creation of a fund" theory as contemplated by Idaho Code § 3-205 and Skelton. See In re Secaur, 83 I.B.C.R. 175, 178 (Bankr. D. Idaho 1983) (questioning whether the division of preexisting community real property in the divorce context fell within the "creation of a fund" theory).
In support of his argument, Avery cites one case, Dragotoiu v. Dragotoiu, 991 P.2d 369 (Idaho Ct. App. 1998), which he contends is factually similar to this one, in which an attorney sought to enforce an attorney's lien pursuant to Idaho Code § 3-205. Avery argues that in that case, the attorney was "entitled to a claim for an attorney lien against all community property owned by his client in his divorce representation[.]" Docket No. 69.
Kohler cites no Idaho cases to support his argument.
While this is obviously not a divorce case, the Court acknowledges similarities between the facts her and in Dragotoiu. Despite the similarities, however, Dragotiou offers little help to Avery or Kohler.
The principal similarity between the two cases is that the attorneys had withdrawn from their representation of their clients prior to the time they sought to enforce their attorneys' liens. Moreover, while the litigation in this Court did not involve spouses seeking to dissolve a marriage and divide community assets, it could be viewed as an attempt by the Thomason family and TFI to "divorce" themselves financially from the interests held by Greg and Diana Thomason, and to split up the company's valuable assets.
Although Avery contends the attorney's lien in Dragotiou attached to all community property owned by his client, a careful reading of the Court of Appeals decision reveals otherwise. There was no discussion by the court regarding to which funds, if any, the attorney's lien would attach. Certainly the decision did not hold that any property which Mr. Dragotoiu was awarded pursuant to the state court's division of community property in the divorce decree constituted a "fund" to which his attorney's lien could attach. In short, Dragotoiu does not stand for the proposition that the proceeds from the Agren property sale constitute a fund from which Kohler or Avery should expect to look for payment, and the Court makes no such finding. But even if the sale proceeds do constitute a fund within the meaning of Skelton, the other requirements laid out by the Idaho Supreme Court are not satisfied.
As the dissent in Skelton clearly pointed out, a lien acquired pursuant to Idaho Code § 3-205 is "limited to those claims placed in litigation," and does not extend to a client's assets in general. Skelton, 625 P.2d at 1081. The Agren property was an existing asset of TFI and the bankruptcy estate of Greg and Diana Thomason. Kohler and Avery did nothing to bring this asset into existence. Moreover, and perhaps more importantly, the attorneys were unsuccessful in their principal argument in the litigation: that their client, TFI, was the sole owner of the property. In short, the attorneys' efforts in the litigation did not, primarily or substantially, secure the sale proceeds for their client.
In addition, neither Kohler nor Avery were employed by TFI on a contingency basis; both charged hourly fees for their services. In this regard, nothing in the testimony or evidence shows that either lawyer agreed to look solely to the property "recovered" for payment as opposed to being paid directly by their clients. Indeed, the evidence is to the contrary. Both Kohler and Avery received an initial cash retainer, and both sought and received various interim cash payments from their clients. See Exs. 502, 709. As a result, another important Skelton element is not satisfied.
In short, because all of the elements required by Skelton are not satisfied, Kohler and Avery are not entitled to attorneys' liens under any "fund" theory.
2. The Frazee requirements are not satisfied.
Because the Skelton requirements for establishing a charging lien are not met, Kohler and Avery must invoke an adjudicative process to "perfect and reduce [their liens] to a judgment or order of the court." Secaur, 83 I.B.C.R. at 178. They have not done so. While they recorded notices of their claims to attorney's liens in Madison County, where the Agren property is situated, they did not seek to reduce their claims to a judgment prior to recording their lien claims.
In Frazee, the Idaho Supreme Court identified the problem with this approach. It stated:
The ethical and policy considerations involved in a construction of attorney's lien statutes were recently before the Washington Supreme Court in Ross v. Scannell, 97 Wash.2d 598, 647 P.2d 1004 (1982). The court there dealt with the practice of liens of attorneys being attached to property for unadjudicated and unliquidated claims:
"Although we recognize the common problems faced by attorneys in collecting their well deserved fees, the reasons for our hesitancy are apparent. The result of our approving the practice would allow members of the Bar to cloud title to real property with `claims of attorney lien' without resort to any adjudication of such claims. The potential for economic coercion by attorneys is obvious. . . .
"In an age when ethics of the bar are scrutinized in every quarter, we must hold that the result reached by the trial court [allowing the unperfected attorney lien] is one neither contemplated by the attorney lien statute nor in accord with the public interest."
Frazee, 660 P.2d at 930-31 (quoting Ross v. Scannell, 647 P.2d at 1008-09). The court held that an attorney's attempt to seek a writ of execution, without earlier obtaining a judicial determination as to the amount actually owed to him, deprived his client of due process and was improper. Id. at 931.
Kohler's and Avery's tactics are similar to those of the attorney in Frazee. While their respective lien notices refer to specific dollar amounts, these amounts have not previously been adjudicated as representing the true balance due to them for their services, nor have their clients been afforded any due process with respect to this issue. See Exs. 503, 702, 707.
Kohler's notice indicates the amount of his lien is $35,000. Ex. 503. Avery's initial notice indicates the amount of his lien was $41,619.31. Ex. 702. Avery then filed an amended notice which claimed $73,249.05 as of February 26, 2008, with interest accruing at 18% per annum. Ex. 707.
The Court concludes that the requirements for establishing a Frazee charging lien are not met. Neither Kohler nor Avery are entitled to a distribution from the TFI portion of the Agren property proceeds on account of their alleged attorneys' liens.
The Thomasons vigorously challenge the amounts claimed to be due by both Kohler and Avery. Because they are not entitled to a lien, and the issue before the Court involves only the distribution of funds generated from the sale of the Agren property, the Court need not, and does not, resolve this dispute. And this decision does not impact the lawyers' right to seek to collect their debts through other means, such as by suit against TFI in state court.
IV. Conclusion
In summary, FFIC is the only party that has submitted sufficient proof to support its claim to a lien on the proceeds of the Agren property. Trustee is directed to pay FFIC $22,210.72 from the TFI two-thirds portion of the sale proceeds which he is holding in trust. Trustee shall be ordered to disburse the balance of the sale proceeds to the Clerk of the Madison County District Court, to be distributed by order of that court in connection with the pending action for dissolution of TFI.
FFIC did not submit proof of the current balance due on its judgment, so the Court has calculated that amount from the information contained on the face of the judgment. The original amount of FFIC's judgment was $16,951.44. Interest on that amount accrues at the rate of 8.375% per annum, or, according to the Court's calculations, $3.89 per diem. Therefore, as of, June 24, 2009, the total amount of interest accrued is $5,259.28.
In its prior decision, the Court adjudged that Greg Thomason, and now through him, the bankruptcy estate, owns a minority shareholder interest in TFI. The Court is advised that Trustee is seeking, through a state court action, a judicial dissolution of that company, and distribution of its assets to shareholders. Since that action is apparently contested by the Thomasons, in the exercise of this Court's discretion, it is appropriate that any of the Agren property sale proceeds to which TFI may be entitled be paid into the Clerk of the state court. The interested parties may then request an order for distribution of the funds from the state court. None of the parties have voiced an objection to that course of action. Of course, this Court expresses no opinion regarding the issues in that action nor how the TFI funds or assets should be administered.
Counsel for Trustee shall promptly submit an appropriate form of judgment, consistent with this decision, for entry by the Court. Counsel for FFIC shall approve the form of the judgment.