159 B.R. 624 | D. Mass. | 1993
MEMORANDUM OF DECISION AND ORDER ON TRUSTEE’S MOTION FOR SUMMARY JUDGMENT
Defendant Stewart S. Grossman, as he is Trustee in Bankruptcy of Tremont Place Realty Trust, has moved for summary judgment. The Plaintiffs have not responded to the motion. The Plaintiffs are creditors of Tremont One Limited Partnership. By their complaint in this adversary proceeding, they seek an order substantively consolidating Tremont One Limited Partnership and the Debtor, Tremont Place Realty Trust, such that the two would constitute a single debtor in bankruptcy, or, in the alternative, an order dismissing the bankruptcy case of Tremont Place Realty Trust on the ground that the Debtor, being a realty trust, is not eligible to be a debtor under the Bankruptcy Code. In his answer and by his motion for summary judgment, the Trustee asserts the affirmative defense of laches, arguing that the complaint should be dismissed because, if it were permitted to go forward, the estate would be prejudiced by the Plaintiffs’ inexcusable delay in bringing this action.
The defense is well-founded. “Under the doctrine of laches, a right is lost if one unreasonably delays in the assertion of that right to the prejudice of the other party.’’ In re Halmar Distributors, Inc., 116 B.R. 328, 335 (Bankr.D.Mass.1990) and cases cited. The Debtor commenced this bankruptcy case by filing a petition under Chapter 11 of the Bankruptcy Code on July 19, 1989. Defendant Stuart Grossman was appointed Chapter 11
ORDER
For the reasons set forth above, the Motion of Defendant Stewart F. Grossman, Trustee of Tremont Place Realty Trust, for Summary Judgment is hereby ALLOWED. Judgment shall enter for the Defendants.
JUDGMENT
The Court having allowed the Motion of Defendant Stewart S. Grossman, Trustee in Bankruptcy of Tremont Place Realty Trust, for Summary Judgment,
It is hereby ORDERED and ADJUDGED that the Plaintiffs take nothing and that this adversary proceeding be and hereby is DISMISSED ON THE MERITS.
. Moreover, substantive consolidation requires notice to the creditors of both entities; the Trustee can be said to represent the creditors of the Debtor, but the Court has no indication that all the creditors of the Partnership have all been given notice of this proceeding.