In re Kennedy
MEMORANDUM OPINION AND ORDER
This matter came before the Court for hearing on January 31, 2014 (the “Hearing”) on the Chapter 7 Involuntary Petition (“Petition for Relief’), (Dkt. No. 1), filed by Brandon Woodward, Carla Harper, and Haley Woodward (the “Petitioning Creditors”), and the Answer and Motion to Dismiss Involuntary Petition and for Other Relief, (Dkt. No. 4), filed by alleged debtor Richard N. Kennedy (“Kennedy”). Also before the Court is the Motion for Appointment of a Trustee, (Dkt. No. 85), filed by the Petitioning Creditors.
After considering the motions filed and exhibits attached thereto; counsels’ arguments at the Hearing; and the record, the Court finds that the Petition for Relief should be granted and states the following:
I. JURISDICTION
The Court has jurisdiction of the parties to and the subject matter of this proceeding pursuant to 28 U.S.C. § 1334. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), & (O). This memorandum opinion constitutes the Court’s findings of fact and conclusions of law pursuant to Federal Rules of Bankruptcy Procedure 1018 and 7052.
II. FINDINGS OF FACT
Kennedy was involved in an automobile accident with the Petitioning Creditors on January 1, 2010. (Dkt. No. 4 at 2 ¶ 1). He was apparently driving the wrong way on the highway while intoxicated and the resulting wreck caused the death of Carla Harper and Brandon Woodward’s one-year-old child. (Dkt. No. 90 at 8). Kennedy pleaded guilty to D.U.I. Manslaughter
On September 5, 2012, an amended final judgment was entered in favor of the Petitioning Creditors in the Circuit Court of Marion County, Mississippi (the “Circuit Court”), in the amount of 1.5 million dollars. (Dkt. No. 128 at 2 ¶ 1-2). On January 25, 2013, $50,011.45 was deposited into the registry of the Circuit Court and the judgment was partially satisfied in that amount. (Dkt. No. 128 at 2 ¶ 3, Exh. 20). At the Hearing, counsel for both parties clarified that Farm Bureau, and not Kennedy, paid the $50,011.45 that was deposited.
The winning bid was for 50 dollars and was placed by Jim Moore, apparently on behalf of Blake D. Smith (“Smith”), both of whom are attorneys at Copeland. (Dkt. No. 40 at 2 ¶ 3). There is a hand notation on the Sherriff s Assignment, which purports to sell “all claims, demands, actions, causes, [and] rights of action relating to Richard Kennedy’s cause of action against [Farm Bureau] arising from and relating to the claims brought by Plaintiffs in this cause” to Smith. (Id. at Exh. C; Dkt. No. 1 at Exh. D). Smith represents Farm Bureau. (Dkt. No. 40 at 2 ¶ 4). Counsel of record for Kennedy are also attorneys at Copeland.
On May 8, 2013, the Circuit Court entered an order, presented by the Petitioning Creditors, finding that the Writ could not be executed for failure of process. (Dkt. No. 128 at Exh. 35). Smith, counsel for Farm Bureau and the high bidder at auction, moved to vacate the order and quash any subsequently-issued writs. (Id. at Exh. 26). On May 20, 2013, the Petitioning Creditors moved to set aside the sale and on May 31, 2013, the Circuit Court denied their motion, stating that they sought “equitable relief that cannot
The Petitioning Creditors filed a Motion to Disqualify Copeland as counsel for Kennedy on September 9, 2013, alleging Copeland’s dual representation of both Farm Bureau and Kennedy amounted to either “an irreconcilable conflict of interest” or “a cooperative relationship in seeking to undermine [the Petitioning Creditors’] attempts at collection^] which gives the appearance of impropriety.” (Dkt. No. 40 at 3 ¶ 6). Indeed, Copeland has and continues to represent Farm Bureau’s interests and now purports to simultaneously represent Kennedy’s interests in opposing the Petition for Relief. According to Smith, an attorney with Copeland, the Petitioning Creditors “threatened to obtain an excess verdict against Kennedy in the Circuit Court of Marion County, Mississippi, and to attempt to collect it in [an allegedly] manufactured bad-faith suit against Farm Bureau. Smith was involved in representing Farm Bureau with respect to legal matters arising out of the same.” (Dkt. No. 34 at 2 ¶ 5). Apparently, Copeland has represented Farm Bureau’s interests in connection with the Petitioning Creditor’s suit against Kennedy, at least since the settlement offer. To that end, Copeland attorneys appeared at the Sherriff s sale and outbid the Petitioning Creditors to obtain Kennedy’s alleged cause of action against Farm Bureau. The subsequent order setting aside the sale for failure of process was set aside by Copeland attorneys. Now, Copeland attorneys are representing Kennedy in opposition to the Petition for Relief in what appears to be an effort to prevent a trustee from attempting to set aside the Sherriff s sale on Kennedy’s behalf. According to Kennedy’s engagement letter with Copeland, Copeland’s representation of Kennedy is limited as follows: “[t]he scope of our engagement and duties shall relate solely to assisting you regarding the Involuntary Bankruptcy Petition.” (Dkt. No. 59 at Exh. A), (emphasis added).
A hearing was held on the Motion to Disqualify on October 25, 2013. Without reaching the merits of the Petitioning Creditors’ argument, the Court subsequently denied the motion on November 12, 2013, (Dkt. No. 73), because the Petitioning Creditors lacked standing to disqualify Copeland. See In re Yarn Processing Patent Validity Litig.,
III. CONCLUSIONS OF LAW
A. Burden of Proof
To prevail on their request for relief, the Petitioning Creditors must establish each of the requirements under 11 U.S.C. § 303 by a preponderance of the evidence. In re Green Hills Dev. Co., LLC,
1. § 303(a): Kennedy’s eligibility to be a debtor
The Petitioning Creditors must first show that Kennedy is eligible to be a debtor under Chapter 7. Section 303(a) provides: “[a]n involuntary case may be commenced only under chapter 7 or 11 of this title, and only against a person ... that may be a debtor under the chapter under which such case is commenced.” 11 U.S.C. § 303(a). The Petitioning Creditors filed the involuntary petition against Kennedy under Chapter 7. (Dkt. No. 1). Section 109 defines eligibility for liquidation under the Bankruptcy Code. 11 U.S.C. § 109. Kennedy does not contend that he is not an eligible debtor under Chapter 7. He is a United States Citizen and he does not appear to fall within any of the categories enumerated under § 109 that would prevent him from being a debt- or in Chapter 7. Thus, the Court finds that Kennedy is eligible to be a debtor under Chapter 7.
Accordingly, the Petitioning Creditors have met their burden with respect to § 303(a) and the Court now turns to whether they had standing to file the Petition for Relief under § 303(b).
2. § 303(b): Standing to file an involuntary petition
Next, the Petitioning Creditors must establish they have standing to file an involuntary petition under § 303(b). Section 303(b) provides:
An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title—
(1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute as to liability or amount, or an indenture trustee representing such a holder, if such noncontingent, undisputed claims aggregate at least $15,3251 more than the value of any lien on property of the debtor securing such claims held by the holders of such claims;
(2) if there are fewer than 12 such holders, excluding any employee or insider of such person and any transferee of a transfer that is voidable under section 544, 545, 547, 548, 549, or 724(a) of this title, by one or more of such holders that hold in the aggregate at least $15,325 of such claims....
11 U.S.C. § 303(b). There are three petitioning creditors in this case: Carla Harper, Brandon Woodward, and Hayley Woodward. (Dkt. No. 1). Hayley Woodward is a minor who is represented by Carla Harper. (Id.). Each petitioning creditor is the “holder of a claim against [Kennedy] that is not contingent as to liability or the subject of a bona fide dispute as to liability or amount.”
Accordingly, the Court finds that the Petitioning Creditors have met the standing requirements of § 303(b) and turns now to whether they have met their burden under § 303(h).
3. § 303(h): Whether Kennedy is generally paying his debts as they come due
Finally, the Petitioning Creditors must establish that their claim is not subject to a bona fide dispute and that Kennedy is not generally paying his debts as they become due. Section 303(h) provides that:
[AJfter trial, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed, only if—
(1) the debtor is generally not paying such debtor’s debts as such debts become due unless such debts are the subject of a bona fide dispute as to liability or amount....
11 U.S.C. § 303(h). Kennedy does not argue that the Petitioning Creditors’ claims are subject to a bona fide dispute and the Petitioning Creditors have obtained final judgment against Kennedy in state court. Thus, for the purposes of § 303(h), the Court need only consider whether Kennedy is generally paying his debts as they become due.
Determining whether an alleged debtor is generally not paying his debts as they become due “is not a balance-sheet insolvency test based on a comparison of assets and liabilities.... It is a factual, as distinguished from a legal, determination,” which “requires consideration of both the amount of the debts not being paid and the number of creditors not being paid.” In re Green Hills,
Kennedy argues that he is generally paying his debts as they come due, including living expenses and the criminal restitution he was ordered to pay to the State of Mississippi, and that the only debt he is not current on is the judgment.
Kennedy does not argue that he is paying or has paid anything towards the $1.5 million judgment against him that was awarded to the Petitioning Creditors.
Accordingly, the Petitioning Creditors have established that Kennedy is not generally paying his debts as they come due and they have thus established the required elements under § 303. The Court now turns to whether the petition was filed in bad faith.
B. Bad Faith
Good faith is not an explicit requirement for granting involuntary relief under § 303.
A determination of bad faith is generally predicated upon a finding that the petitioning creditor acted with wrongful motives, wrongful objectives, or both.
1. Improper Use or Purpose
First, Kennedy claims that the Petitioning Creditors filed the involuntary petition against him for an improper purpose without first exhausting their state-law collection remedies, which, Kennedy argues, amounts to bad faith. (Dkt. No. 4 at 5 ¶8). Kennedy further argues that the involuntary petition should be dismissed because of this alleged bad faith. (Dkt. No. 125 at 14). But the authority he cites for this proposition — two cases out of the
a. Improper Use
Kennedy does not define the “improper use” test or the “improper purpose” test. Instead, he conflates the two and argues that because the Petitioning Creditors filed the Petition for Relief “for the purposes of customary debt collection,” they have acted in bad faith. (Dkt. No. 125 at 14-15). The “improper use” test is an objective test that “finds bad faith when a petitioning creditor uses involuntary bankruptcy procedures in an attempt to obtain a ‘disproportionate advantage’ for itself, rather than to protect against other creditors obtaining disproportionate advantages, particularly when the petitioner could have advanced his own interest in a different forum.” In re Bayshore Wire Prods. Corp.,
The parties agree that the Petitioning Creditors are Kennedy’s only creditors that are not being paid. (Dkt. No. 128 at 3-4). Thus it is unclear how the Petitioning Creditors would obtain a “disproportionate advantage” for themselves over Kennedy’s other creditors by filing the involuntary petition. Kennedy does not argue that this is the case; instead he relies solely on his claim that the Petitioning Creditors can advance their own interests in a different forum; therefore, their attempt to collect their debt in bankruptcy court amounts to an improper use of the bankruptcy code. (Dkt. No. 125 at 15). In support of his position, Kennedy cites two cases from the Eleventh Circuit: Doane v. Friendship Airways Leasing, Inc., No. 11-61777-CIV-MORENO,
First, in Doane, K & H Ventures (“K & H”) — owned by Karl Doane — leased two charter airplanes to Friendship Airways Leasing, Inc. (Friendship). Id. at *1,
Next, in Smith the bankruptcy court found the petitioning creditor acted in bad faith and used the bankruptcy code as a substitute for customary debt collection procedures where it claimed the alleged debtor was illegally transferring assets. Smith,
Smith and Doane both involved petitioning creditors that failed to make any effort to exhaust their state court remedies. By contrast, in this case the Petitioning Creditors have attempted to pursue their state court collection remedies: they obtained a judgment at trial after a proposed settlement within policy limits was rejected; enrolled their judgment against Kennedy; moved for a writ of execution on Kennedy’s purported cause of action against Farm Bureau; attempted to purchase the cause of action at auction and were outbid by Farm Bureau’s attorneys; attempted to obtain a second writ; and attempted to set aside the Sherriffs sale. {See Dkt. No. 128 at 5-8). Kennedy argues that the Petitioning Creditors did not appeal the order denying their motion to set aside the Sherriffs sale and that the Petitioning Creditors have state-law remedies they failed to pursue before filing the involuntary petition. But there is at least some question as to whether the Petitioning Creditors have the ability to set aside the Sherriffs sale in state court.
Accordingly, the Court finds that the filing of the involuntary petition does not constitute an improper use of the bankruptcy code and turns now to whether the petition was filed for an improper purpose.
b. Improper Purpose
Under the subjective “improper purpose” test, “bad faith exists if the filing of the petition was motivated by ill will, malice, or a desire to embarrass or harass the alleged debtor.” In re Bayshore,
Accordingly, the Court finds that the Petitioning Creditors did not file the involuntary petition for an improper purpose and turns now to Kennedy’s allegation that the Petitioning Creditors failed to conduct any investigation before filing the involuntary petition.
2. Failure to Investigate
Last, without citing any authority, Kennedy argues that the failure to conduct an investigation into the relevant law and facts before filing an involuntary petition constitutes bad faith. (Dkt. No. 125 at 18-19). This inquiry appears to be part of the “Rule 9011” standard for finding bad faith, which employs specific questions to reach a determination, including: (1) whether the petitioning creditor made a reasonable inquiry into relevant facts and pertinent law before filing; (2) whether the involuntary filing was well grounded in fact; (3) whether the involuntary filing was warranted by existing law or a good faith argument for change in the current law; and (4) whether the filing was undertaken for an improper purpose, such as harassment, delay, or an effort to increase costs to obtain an advantage. 2 Collier on Bankruptcy ¶ 303.16 (16th ed. 2013). Under this test, answering one or more of the first three questions in the negative and the last question in the affirmative can lead to dismissal of the petition. Id. As discussed above, the Court finds that the Petitioning Creditors did not file the petition for an improper purpose, thus the Rule 9011 test has not been met. Nevertheless, the Court also finds that the Petitioning Creditors did not fail to conduct a proper investigation prior to filing the peti
Kennedy contends that a reasonable inquiry into the facts would have indicated that: (1) he had virtually no non-exempt assets; and (2) he had generally been paying all of his other debts as they became due, while a reasonable inquiry into the law would have indicated that: (1) the Petitioning Creditors were required to exhaust their state-court remedies prior to filing; and (2) the Rooker-Feldman doctrine precludes this Court from over-turning the Marion County Circuit Court’s decision, which is the sole reason for the filing. (Dkt. No. 125 at 19). But, as discussed above, Kennedy may have access to a cause of action against Farm Bureau, among others; the Court finds that Kennedy was not generally paying his debts as they become due; and the Petitioning Creditors were not required to completely exhaust all state court remedies prior to filing. Further, as discussed below, the Rooker-Feldman doctrine is inapplicable in this case.
Accordingly, the Court finds that the Petitioning Creditors have not acted in bad faith and turns now to Kennedy’s argument for permissive abstention under § 305(a).
C. Abstention
Finally, Kennedy moves for discretionary abstention under § 305(a). Section 305(a) states: “[t]he court, after notice and a hearing, may dismiss a case under this title, or may suspend all proceedings in a case under this title, at any time if — (1) the interests of creditors and the debtor would be better served by such dismissal or suspension....” 11 U.S.C. § 305(a). Abstention is an extraordinary remedy. In re StatePark Bldg. Grp., Ltd.,
Kennedy claims that abstention is appropriate, arguing: that the involuntary proceeding will not serve any legitimate bankruptcy purpose, thus the bankruptcy would amount to essentially a two-party dispute; that an alternative forum exists; that federal proceedings are unnecessary to reach a just and equitable solution; that entry of an order for relief will not promote the economy and efficiency of administration; and that the Petitioning Creditors have failed to exhaust their state-law collections remedies. (Dkt. No. 125 at 4-13). The Court considers each argument in turn.
Kennedy first argues that because he will not receive a discharge and he has few assets to liquidate, the twin purposes of Chapter 7 liquidation — the discharge of a debtor and the satisfaction of valid claims against the estate — cannot be served. (Id. at 4-5). This factor “has been used to further support a dismissal of an involuntary case that was filed not in favor of all creditors and the estate but to obtain a disproportionate advantage.... ” 2 Collier on Bankruptcy ¶ 305.2 (16th ed. 2013). But Kennedy ignores one major asset he has access to: the cause of action against Farm Bureau. Kennedy, or a Trustee stepping into his shoes, has standing to challenge the sale of that asset, while — as counsel for Farm Bureau has already argued — the Petitioning Creditors may not. And, according to the Petitioning Creditors, that asset alone could satisfy their claims against him. Moreover, Kennedy is not currently paying anything towards the judgment against him, opting instead to pay his recurring monthly obligations; his criminal restitution; and charitable contributions to his church, (e.g. Dkt. No. 128 at Exh. 9). Thus, a legitimate bankruptcy purpose — satisfaction of valid claims against the estate — may be fulfilled, at least in part, if relief is granted.
Kennedy also claims that where the bankruptcy proceeding is essentially a two-party dispute, courts have abstained. (Dkt. No. 125 at 5). But § 303(b)(2) specifically contemplates a two-party dispute by allowing a single creditor holding a claim greater than $15,325.00 that is not contingent as to liability or subject to a bona fide dispute to file an involuntary petition. 11 U.S.C. § 303(b)(2) (stating that an involuntary petition may be commenced “by one or more [creditors]”) (emphasis added). Nevertheless, Kennedy cites two cases outside the Fifth Circuit— In re Mountain Dairies, Inc.,
First, in Mountain Dairies, a single creditor filed an involuntary petition against the then-defunct alleged debtor corporation. Mountain Dairies,
Next, in Spade, the primary petitioning creditor first sued the alleged debtor in state court to collect on a personal guaranty. Spade,
2.Alternative Forum
Next, Kennedy argues that the Petitioning Creditors failed to exhaust their state-court remedies and the availability of an alternate forum requires abstention. In support of this position, Kennedy quotes In re Cates,
3.Necessity of Federal Proceedings
Third, Kennedy argues that, because the Petitioning Creditors may pursue their actions against Kennedy in state court, federal proceedings are unnecessary. While the Petitioning Creditors may be able to pursue fraudulent transfer claims against Kennedy under state law, this factor is one of many the court considers when deciding whether to abstain and, as Kennedy claims, it may justify a decision to abstain, but — like the other factors — it does not require abstention. And if the Petitioning Creditors lack standing in state court to set aside the Sherriff s sale — as counsel for Farm Bureau has previously argued— their only means of doing so may be in bankruptcy court, where a Trustee can pursue the cause of action in Kennedy’s place.
4.Economy and Efficiency
Fourth, Kennedy argues that an order for relief will not promote administrative economy and efficiency because “the Court will be burdened with time consuming, expensive litigation to undo the Sherrifs Sale.... ” and “Kennedy and his creditors would languish in bankruptcy” while the Trustee attempts to set it aside. (Dkt. No. 125 at 11). Kennedy again cited Spade for support. But, unlike Spade, there is no duplicative litigation in this case. Thus, it makes no difference whether the time and expense to appeal the Sherriffs sale is spent by the Petitioning Creditors in state court or the estate in bankruptcy court. And their standing to set aside the sale in state court is questionable, whereas Kennedy’s standing to do so is not. Moreover,
5. Exhaustion of Remedies
Finally, Kennedy argues that abstention is warranted because the Petitioning Creditors filed their petition for an improper purpose, namely to get this Court to overturn the Marion County Circuit Court and undo the Sherriffs sale. (Dkt. No. 125 at 12-13). Kennedy argues that abstention is warranted under the Rooker-Feldman doctrine, which “bars this court from ‘sit[ting] in appellate review of state court decisions.’ ” (Id. at 13) (quoting Necaise v. Necaise (In re Necaise),
IV. CONCLUSION
For the reasons stated above, the Court finds that the Petition for Relief should be granted. The Petitioning Creditors have met their burden under § 303; Kennedy has failed to show they acted in bad faith; and this Court is not inclined to abstain from exercising jurisdiction over the involuntary petition. Therefore, Kennedy’s motion to dismiss should be denied. An order for relief on the Involuntary Petition will be entered.
IT IS THEREFORE ORDERED AND ADJUDGED that the Petition for Relief is GRANTED and Kennedy’s motion to dismiss is DENIED.
SO ORDERED
Notes
. The Court did not take up .the Motion for Appointment of a Trustee at the Hearing.
. Kennedy introduced 30 exhibits without objection. (Dkt. No. 128, Exhs. 3-32). The Petitioning Creditors introduced 7 exhibits: Exhibits 1, 2, 33, 34, 35 and 36 were introduced without objection; Exhibit 37 was admitted over Kennedy's objection based on relevance; and the Court sustained Kennedy’s relevance objection to Exhibit 38. (Dkt. No. 128, Exhs. 1-2, 33-37).
. (Dkt. No. 128 at Exh. 36). As part of his sentence, Kennedy was ordered to pay restitution to Brandon Woodward and Carla Harper in the amount of $30,000 in addition to a fine of $1,500 and all costs of court. (Id.).
. The order granting Kennedy’s motion for leave to deposit sums into the court's registry also clarifies that the $50,000 deposit consists of “liability limits ... from Kennedy's automobile insurance policy -with [Farm Bureau], ...'' (Dkt. No. 128 at Exh. 19).
. 11 U.S.C. § 303(b). According to the Amended Final Judgment, Brandon Woodward was awarded judgment in the amount of $250,000.00 plus post-judgment interest; Hayley Woodward was awarded $100,000.00 plus post-judgment interest; Brandon Woodward and Carla Harper, on behalf of all wrongful death beneficiaries of Caynen Woodward, were awarded $650,000.00 plus post-judgment interest; and Carla Harper, Hayley Woodward, and Brandon Woodward were collectively awarded $500,000 for punitive damages plus post-judgment interest. (Dkt. No. 128 at Exh. 3).
. (Dkt. No. 128 at 3). Specifically, Kennedy argues he is paying approximately: (1) $300.00 per month to satisfy the $30,000.00 he owes in criminal restitution; (2) $88.00 per month to the Mississippi Department of Corrections; (3) $425.00 per month in rent; (4) $100.00 per month for automobile insur-anee; (5) $50.00 per month to AT & T; (6) $130.00 per month to DirectTV; (7) $23.00 per month for utilities; (8) $60.00 per month to Entergy Mississippi.; and (8) revolving credit lines through Amazon.com, Sears, and Capital One. (Id..).
.The parties do stipulate that Farm Bureau has paid $50,011.45 towards the judgment. (Dkt. No. 128 at 3). But the plain language of the statute contemplates whether “the debtor is generally not paying....” 11 U.S.C. § 303(h)(1) (emphasis added). Further, the money was deposited well before the petition was filed, and the Petitioning Creditors have yet to receive any of the proceeds from that deposit. (Dkt. No. 128 at 2 ¶ 3; Dkt. No. 90 at 9).
. "Greater than 95% of Kennedy’s debt is owing to [the Petitioning Creditors].” (Dkt. No. 128 at 5 ¶ 16).
. "Section 303(b) does not require an involuntary petition be filed in good faith, any more than section 301 requires that a voluntary petition be filed in good faith.” 2 Collier on Bankruptcy ¶ 303.16 (16th ed. 2013).
. Section 303(i) states:
(i) If the court dismisses a petition under this section other than on consent of all petitioners and the debtor, and if the debtor does not waive the right to judgment under this subsection, the court may grant judgment—
(1) against the petitioners and in favor of the debtor for—
(A) costs; or
(B) a reasonable attorney’s fee; or
(2) against any petitioner that filed the petition in bad faith, for — •
(A) any damages proximately caused by such filing; or
(B) punitive damages.
11 U.S.C. § 303(i) (emphasis added).
. McMillan,
. In his trial brief, Kennedy argues that the Petitioning Creditors "concede that they can still appeal the Circuit Court Orders refusing to overturn the Sherriffs Sale.” (Dkt. No. 125
. In an affidavit signed May 29, 2013, Kennedy stated that had “no objection to the Execution Sale that occurred on May 6, 2013.” (Dkt. No. 128 at Exh. 34). And the Petitioning Creditor's standing to challenge the sale is questionable. See Indus. Sales Corp. v. Reliance Mfg. Co.,
. In arguing the applicability of Rooker-Feldman, Kennedy points to the Marion County Circuit Court’s final orders (1) denying the Petitioning Creditor's motion to set aside the Sherriffs sale; and (2) vacating its order granting a second writ of execution. (Dkt. No. 128 at Exhs. 31, 32). But neither order contains any judgment on the merits of the Petitioning Creditor’s arguments: the order denying the motion to set aside simply states that "the Motion seeks equitable relief that cannot be granted by a court of law,” (Id. at Exh. 31), and the order vacating the prior judgment states that “consistent with the Court’s Order [denying the motion to set aside], the Court’s Order of May 8, 2013 is hereby vacated....” (Id. at Exh. 32).