Bankruptcy

How Does Texas Lawyer and Bandit Robert Berleth Still Have Legal Access to Houston’s Federal Court?

Answer: Texas Lawyer Robert Berleth is part of the Ochlocracy. Article III Judges and Lawyers conspire together in Houston Federal Court.

Preferred Ready-Mix LLC v. Berleth

(22-03040)

United States Bankruptcy Court, S.D. Texas

NOV 9, 2022 | REPUBLISHED BY LIT: NOV. 11, 2022
Nov. 28, 2022

Appellant Designation

Nov. 14, 2022

Notice of Appeal was slow to arrive by Berleth, we thought it would be in this morn’.

U.S. Bankruptcy Court
Southern District of Texas (Houston)
Adversary Proceeding #: 22-03040
Create an Alert for This Case on RECAP

Assigned to: Bankruptcy Judge Jeffrey P Norman
Lead BK Case: 21-33369
Lead BK Title: Preferred Ready-Mix LLC
Lead BK Chapter: 11

Demand:

Date Filed: 03/07/22
Date Terminated: 11/09/22
Nature[s] of Suit: 11 Recovery of money/property – 542 turnover of property
14 Recovery of money/property – other
02 Other (e.g. other actions that would have been brought in state court if unrelated to bankruptcy)

 


Plaintiff
———————–

Preferred Ready-Mix LLC
8750 Scranton Street
Houston, TX 77041
Tax ID / EIN: 83-3546341
 

represented by

 

Joyce Williams Lindauer
Joyce W. Lindauer Attorney, PLLC
1412 Main Street
Suite 500
Dallas, TX 75202
972-503-4033
Email: joyce@joycelindauer.com

 

V.

Defendant
———————–

Robert Berleth
 

represented by

 

Paul James Hammer
Barron and Newburger
5555 West Loop S
Suite 235
Bellaire, TX 77401
832-271-4003
Fax : 512-279-0310
Email: phammer@bn-lawyers.com

Stephen Wayne Sather
Barron Newburger, P.C.
7320 N Mopac Expy
Ste 400
Austin, TX 78731
512-476-9103
Email: ssather@bn-lawyers.com

 


Defendant
———————–

Berleth and Associates
 

represented by

 

Paul James Hammer
(See above for address)

Stephen Wayne Sather
(See above for address)

 

Filing Date # Docket Text
03/07/2022 1
(13 pgs)
Adversary case 22-03040. Nature of Suit: (11 (Recovery of money/property – 542 turnover of property)),(14 (Recovery of money/property – other)), (02 (Other (e.g. other actions that would have been brought in state court if unrelated to bankruptcy))) Complaint by Preferred Ready-Mix LLC against Robert Berleth, Berleth and Associates. Fee Amount $350 (Lindauer, Joyce) (Entered: 03/07/2022)
03/07/2022 2
(2 pgs)
Additional Attachments Re: /Adversary Proceeding Cover Sheet (related document(s):1 Complaint) (Filed By Preferred Ready-Mix LLC ).(Related document(s):1 Complaint) (Lindauer, Joyce) (Entered: 03/07/2022)
03/07/2022 3
(4 pgs)
Request for Issuance of Summons on Robert Berleth; Berleth and Associates. (Lindauer, Joyce) (Entered: 03/07/2022)
03/08/2022 4
(2 pgs)
Preliminary Pretrial Scheduling Order Signed on 3/8/2022 (Related document(s):1 Complaint) Pre-Trial Conference set for 5/11/2022 at 11:00 AM at Houston, Courtroom 403 (JPN). (mrios) (Entered: 03/08/2022)
03/09/2022 5
(4 pgs)
Summons Issued on Robert Berleth Date Issued 3/9/2022; Berleth and Associates Date Issued 3/9/2022. (hler) (Entered: 03/09/2022)
03/09/2022 6
(2 pgs)
Summons Service Executed on Robert Berleth 3/9/2022. (Lindauer, Joyce) (Entered: 03/09/2022)
03/09/2022 7
(2 pgs)
Summons Service Executed on Berleth and Associates 3/9/2022. (Lindauer, Joyce) (Entered: 03/09/2022)
03/10/2022 8
(3 pgs)
BNC Certificate of Mailing. (Related document(s):4 Scheduling Order) No. of Notices: 1. Notice Date 03/10/2022. (Admin.) (Entered: 03/10/2022)
03/21/2022 9
(2 pgs)
Notice of Appearance of counsel for Defendants. Filed by Robert Berleth, Berleth and Associates (Hammer, Paul) (Entered: 03/21/2022)
03/21/2022 10
(7 pgs; 2 docs)
Non-Opposition Motion to Invoke Adversary Rules and Consolidate Objection to Application for Allowance of Chapter 11 Administrative Expense Claim with Instant Adversary Proceeding Filed by Robert Berleth, Berleth and Associates Hearing scheduled for 4/22/2022 at 11:00 AM at Houston, Courtroom 403 (JPN). (Attachments: # 1 Proposed Order) (Hammer, Paul) (Entered: 03/21/2022)
03/21/2022 11
(2 pgs)
Notice of hearing. (Related document(s):10 Generic Motion) Filed by Robert Berleth, Berleth and Associates (Hammer, Paul) (Entered: 03/21/2022)
03/21/2022 12
(2 pgs)
Order Denying Motion (Related Doc # 10) Signed on 3/21/2022. (mrios) (Entered: 03/22/2022)
03/24/2022 13
(3 pgs)
BNC Certificate of Mailing. (Related document(s):12 Generic Order) No. of Notices: 1. Notice Date 03/24/2022. (Admin.) (Entered: 03/24/2022)
04/13/2022 14
(4 pgs; 2 docs)
Non-Opposition Motion to Extend Time To File An Answer To Plaintiff’s Complaint Filed by Robert Berleth, Berleth and Associates (Attachments: # 1 Proposed Order) (Hammer, Paul) (Entered: 04/13/2022)
04/13/2022 15
(33 pgs; 2 docs)
Motion to Dismiss Adversary Proceeding. Objections/Request for Hearing Due in 21 days. Filed by Robert Berleth, Berleth and Associates Hearing scheduled for 5/11/2022 at 11:00 AM at Houston, Courtroom 403 (JPN). (Attachments: # 1 Proposed Order) (Sather, Stephen) (Entered: 04/13/2022)
04/14/2022 16
(1 pg)
Order Granting Motion to Extend Time to File an Answer. (Related Doc # 14) Signed on 4/14/2022. (mrios) (Entered: 04/14/2022)
04/16/2022 17
(3 pgs)
BNC Certificate of Mailing. (Related document(s):16 Order on Motion to Extend Time) No. of Notices: 1. Notice Date 04/16/2022. (Admin.) (Entered: 04/16/2022)
04/24/2022 18
(70 pgs)
Objection /Plaintiff’s Objection and Response to Defendants’ Motion to Dismiss (related document(s):15 Motion to Dismiss Adversary Proceeding). Filed by Preferred Ready-Mix LLC (Lindauer, Joyce) (Entered: 04/24/2022)
05/02/2022 19
(38 pgs; 3 docs)
Reply to Plaintiff’s Opposition to Defendant’s Motion to Dismiss (related document(s):15 Motion to Dismiss Adversary Proceeding). Filed by Robert Berleth, Berleth and Associates (Attachments: # 1 EX 1 – Email Exchange # 2 EX 2 – Receivership Order) (Sather, Stephen) (Entered: 05/02/2022)
05/09/2022 20
(11 pgs)
Notice /Surreply to Defendant’s Reply to Plaintiff’s Opposition to Defendants’ Motion to Dismiss. (Related document(s):19 Reply) Filed by Preferred Ready-Mix LLC (Lindauer, Joyce) (Entered: 05/09/2022)
05/10/2022 21
(10 pgs)
Joint Pre Trial Statement (Filed By Preferred Ready-Mix LLC ).(Related document(s):4 Scheduling Order) (Lindauer, Joyce) (Entered: 05/10/2022)
05/10/2022 22
(4 pgs)
Order Regarding Motion to Dismiss. Signed on 5/10/2022 (Related document(s):15 Motion to Dismiss Adversary Proceeding) (mrios) (Entered: 05/10/2022)
05/11/2022 23 Courtroom Minutes. Time Hearing Held: 11:00. Appearances: Joyce Lindauer for the plaintiff, Stephen Sather for the defendants. (Related document(s):1 Complaint) Pretrial Conference held. Answer to be filed within 14 days. Parties agreed to proposed dates and deadlines. The Court will prepare and enter a scheduling order setting deadlines and a trial date. (TraceyConrad) (Entered: 05/11/2022)
05/12/2022 24
(1 pg)
 PDF with attached Audio File. Court Date & Time [ 5/11/2022 11:04:40 AM ]. File Size [ 1681 KB ]. Run Time [ 00:03:30 ]. (admin). (Entered: 05/12/2022)
05/12/2022 25
(6 pgs)
BNC Certificate of Mailing. (Related document(s):22 Generic Order) No. of Notices: 1. Notice Date 05/12/2022. (Admin.) (Entered: 05/12/2022)
05/13/2022 26
(3 pgs)
Order Scheduling Trial and Setting Deadlines. Signed on 5/13/2022 (Related document(s):1 Complaint) Discovery due by 9/8/2022. Trial date set for 11/8/2022 at 09:30 AM at Houston, Courtroom 403 (JPN). (mrios) (Entered: 05/13/2022)
05/15/2022 27
(5 pgs)
BNC Certificate of Mailing. (Related document(s):26 Comprehensive Scheduling Order) No. of Notices: 1. Notice Date 05/15/2022. (Admin.) (Entered: 05/15/2022)
05/26/2022 28
(4 pgs)
Answer to Complaint (Related document(s):1 Complaint) Filed by Robert Berleth (Sather, Stephen) (Entered: 05/26/2022)
10/10/2022 29
(3 pgs)
Motion For Summary Judgment. Objections/Request for Hearing Due in 21 days. Filed by Preferred Ready-Mix LLC (Lindauer, Joyce) (Entered: 10/10/2022)
10/10/2022 30
(17 pgs)
Brief (Filed By Preferred Ready-Mix LLC ).(Related document(s):29 Motion For Summary Judgment) (Lindauer, Joyce) (Entered: 10/10/2022)
10/10/2022 31
(128 pgs)
Notice /Appendix in Support. (Related document(s):30 Brief) Filed by Preferred Ready-Mix LLC (Lindauer, Joyce) (Entered: 10/10/2022)
10/11/2022 32
(1 pg)
Order Setting Hearing Signed on 10/11/2022 (Related document(s):29 Motion For Summary Judgment) Hearing scheduled for 11/8/2022 at 09:30 AM at Houston, Courtroom 403 (JPN). (mrios) (Entered: 10/11/2022)
10/11/2022 33
(2 pgs)
Certificate of Service (Filed By Preferred Ready-Mix LLC ).(Related document(s):32 Order Setting Hearing) (Lindauer, Joyce) (Entered: 10/11/2022)
10/13/2022 34
(3 pgs)
BNC Certificate of Mailing. (Related document(s):32 Order Setting Hearing) No. of Notices: 1. Notice Date 10/13/2022. (Admin.) (Entered: 10/13/2022)
10/21/2022 35
(34 pgs; 3 docs)
Motion to withdraw deemed admissions. Filed by Robert Berleth Hearing scheduled for 11/2/2022 at 11:00 AM at Houston, Courtroom 403 (JPN). (Attachments: # 1 Proposed Order # 2 Defendant’s Discovery Responses) (Hammer, Paul) (Entered: 10/21/2022)
10/21/2022 36
(2 pgs)
Notice of withdrawal of Docket No. 35. (Related document(s):35 Generic Motion) Filed by Robert Berleth (Hammer, Paul) (Entered: 10/21/2022)
10/21/2022 37
(34 pgs; 3 docs)
Motion to withdraw deemed admissions. Filed by Robert Berleth Hearing scheduled for 11/2/2022 at 11:00 AM at Houston, Courtroom 403 (JPN). (Attachments: # 1 Proposed Order # 2 Defendant’s Discovery Responses) (Hammer, Paul) (Entered: 10/21/2022)
10/24/2022 38
(1 pg)
Order Resetting Hearing Signed on 10/24/2022 (Related document(s):37 Motion to Withdraw Deemed Admissions) Hearing rescheduled for 11/8/2022 at 09:30 AM at Houston, Courtroom 403 (JPN). (TraceyConrad) (Entered: 10/24/2022)
10/25/2022 39
(149 pgs; 19 docs)
Response (related document(s):29 Motion For Summary Judgment). Filed by Robert Berleth (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Index # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit # 18 Exhibit) (Sather, Stephen) (Entered: 10/25/2022)
10/26/2022 40
(3 pgs)
BNC Certificate of Mailing. (Related document(s):38 Order Setting Hearing) No. of Notices: 1. Notice Date 10/26/2022. (Admin.) (Entered: 10/26/2022)
10/28/2022 41
(4 pgs; 2 docs)
Motion to Continue Hearing On (related document(s):38 Order Setting Hearing). Filed by Preferred Ready-Mix LLC (Attachments: # 1 Proposed Order) (Lindauer, Joyce) (Entered: 10/28/2022)
10/31/2022 42
(2 pgs)
Order Denying Motion To Continue/Reschedule Hearing On (Related Doc # 41) Signed on 10/31/2022. (mrios) (Entered: 10/31/2022)
10/31/2022 43
(2 pgs)
Notice and Order for Trial Exhibits and Personal Appearance. Signed on 10/31/2022 (Related document(s):1 Complaint) (mrios) (Entered: 10/31/2022)
11/01/2022 44
(7 pgs)
Order Denying Motion For Summary Judgment in 4:22-ap-3040 (Related Doc # 29) Signed on 11/1/2022. (mrios) (Entered: 11/01/2022)
11/01/2022 45
(6 pgs)
Objection and Response to Defendants’ Motion to Withdraw Deemed Admissions (related document(s):37 Generic Motion). Filed by Preferred Ready-Mix LLC (Lindauer, Joyce) (Entered: 11/01/2022)
11/02/2022 46
(3 pgs)
Order Denying Motion to Withdraw Deemed Admissions (Related Doc # 37) Signed on 11/2/2022. (mrios) (Entered: 11/02/2022)
11/02/2022 47
(4 pgs)
BNC Certificate of Mailing. (Related document(s):43 Generic Order) No. of Notices: 1. Notice Date 11/02/2022. (Admin.) (Entered: 11/02/2022)
11/02/2022 48
(4 pgs)
BNC Certificate of Mailing. (Related document(s):42 Order on Motion to Continue/Reschedule Hearing) No. of Notices: 1. Notice Date 11/02/2022. (Admin.) (Entered: 11/02/2022)
11/03/2022 49
(8 pgs)
Brief (Filed By Robert Berleth ).(Related document(s):26 Comprehensive Scheduling Order) (Sather, Stephen) (Entered: 11/03/2022)
11/03/2022 50
(46 pgs; 3 docs)
Stipulation By Preferred Ready-Mix LLC and Robert Berleth. Does this document include an agreed order or otherwise request that the judge sign a document? No. (Filed By Preferred Ready-Mix LLC ). (Attachments: # 1 Plaintiff’s Requests for Admission # 2 Defendant’s Witness and Exhibit List) (Lindauer, Joyce) (Entered: 11/03/2022)
11/03/2022 51
(11 pgs)
Brief (Filed By Preferred Ready-Mix LLC ).(Related document(s):26 Comprehensive Scheduling Order) (Lindauer, Joyce) (Entered: 11/03/2022)
11/03/2022 52
(9 pgs)
BNC Certificate of Mailing. (Related document(s):44 Order on Motion For Summary Judgment) No. of Notices: 1. Notice Date 11/03/2022. (Admin.) (Entered: 11/03/2022)
11/04/2022 53
(292 pgs; 27 docs)
Exhibit List (Filed By Robert Berleth ).(Related document(s):43 Generic Order) (Attachments: # 1 Exhibit 1 # 2 Exhibit 2 # 3 Exhibit 3 # 4 Exhibit 4 # 5 Exhibit 5 # 6 Exhibit 6 # 7 Exhibit 7 # 8 Exhibit 8 # 9 Exhibit 9 # 10 Exhibit 10 # 11 Exhibit 11 # 12 Exhibit 12 # 13 Exhibit 12A # 14 Exhibit 12B # 15 Exhibit 13 # 16 Exhibit 14 # 17 Exhibit 15 # 18 Exhibit 16 # 19 Exhibit 17 # 20 Exhibit 18 # 21 Exhibit 19 # 22 Exhibit 20 # 23 Exhibit 21 # 24 Exhibit 22 # 25 Exhibit 23 # 26 Exhibit 24) (Sather, Stephen) (Entered: 11/04/2022)
11/04/2022 54
(1001 pgs; 62 docs)
Exhibit List, Witness List (Filed By Preferred Ready-Mix LLC ).(Related document(s):43 Generic Order) (Attachments: # 1 Exhibit 1 # 2 Exhibit 2 # 3 Exhibit 3 # 4 Exhibit 4 # 5 Exhibit 5 # 6 Exhibit 6 # 7 Exhibit 7 # 8 Exhibit 8 # 9 Exhibit 9 # 10 Exhibit 10 # 11 Exhibit 11 # 12 Exhibit 12 # 13 Exhibit 13 # 14 Exhibit 14 # 15 Exhibit 15 # 16 Exhibit 16 # 17 Exhibit 17 # 18 Exhibit 18 # 19 Exhibit 19 # 20 Exhibit 20 # 21 Exhibit 21 # 22 Exhibit 22 # 23 Exhibit 23 # 24 Exhibit 24 # 25 Exhibit 25 # 26 Exhibit 26 # 27 Exhibit 27 # 28 Exhibit 28 # 29 Exhibit 29 # 30 Exhibit 30 # 31 Exhibit 31 # 32 Exhibit 32 # 33 Exhibit 33 # 34 Exhibit 34 # 35 Exhibit 35 # 36 Exhibit 36 # 37 Exhibit 37 # 38 Exhibit 38 # 39 Exhibit 39 # 40 Exhibit 40 # 41 Exhibit 41 # 42 Exhibit 42 # 43 Exhibit 43 # 44 Exhibit 44 # 45 Exhibit 45 # 46 Exhibit 46 # 47 Exhibit 47 # 48 Exhibit 48 # 49 Exhibit 49 # 50 Exhibit 50 # 51 Exhibit 51 # 52 Exhibit 52 # 53 Exhibit 53 # 54 Exhibit 54 # 55 Exhibit 55 # 56 Exhibit 56 # 57 Exhibit 57 # 58 Exhibit 58 # 59 Exhibit 59 # 60 Exhibit 60 # 61 Exhibit 61) (Lindauer, Joyce) (Entered: 11/04/2022)
11/04/2022 55
(5 pgs)
BNC Certificate of Mailing. (Related document(s):46 Generic Order) No. of Notices: 1. Notice Date 11/04/2022. (Admin.) (Entered: 11/04/2022)
11/07/2022 56
(4 pgs)
Supplemental Brief (Filed By Preferred Ready-Mix LLC ).(Related document(s):51 Brief) (Lindauer, Joyce) (Entered: 11/07/2022)
11/08/2022 57 Courtroom Minutes. Time Hearing Held: 9:30. Appearances: Jules Slim for the plaintiff, Stephen Sather for the defendants. (Related document(s):1 Complaint) TRIAL – Parties stipulated to the admission of exhibits. Plaintiff exhibits at ECF #54 3-6, 9-13, 25-27, 29-37, 39, 41, 43-45, and 48-51 were admitted. Defendant exhibits at ECF #53 1 thru 26 were admitted. Opening Statement made by both parties. Elmer Lewis sworn. Direct and cross examination conducted by counsel. Bill Hammer sworn. Direct and cross examination conducted by counsel. Plaintiff exhibits 54-60 and 54-61 were admitted. Robert Foran sworn. Direct and cross examination conducted by counsel. Plaintiff exhibits 54-16, 17, 14, and 7 were admitted. Plaintiff rest. Robert Berleth sworn. Direct and cross examination conducted by counsel. Defendants exhbits 54-8 was admitted. Defendants rest. Closing arguments heard. Matter taken under advisement. (TraceyConrad) (Entered: 11/08/2022)
11/08/2022 58
(1 pg)
 PDF with attached Audio File. Court Date & Time [ 11/8/2022 9:29:37 AM ]. File Size [ 53608 KB ]. Run Time [ 01:51:41 ]. (TRIAL). (admin). (Entered: 11/08/2022)
11/08/2022 59
(1 pg)
 PDF with attached Audio File. Court Date & Time [ 11/8/2022 11:34:55 AM ]. File Size [ 62376 KB ]. Run Time [ 02:09:57 ]. (TRIAL). (admin). (Entered: 11/08/2022)
11/09/2022 60
(9 pgs)
Memorandum Opinion of Bankruptcy Judge Signed on 11/9/2022 (Related document(s):1 Complaint) (TraceyConrad) (Entered: 11/09/2022)
11/09/2022 61
(2 pgs)
Final Judgment in 4:22-ap-3040 Signed on 11/9/2022. This is a final order that disposes of all claims and causes of action in this case. This adversary is closed. (TraceyConrad) (Entered: 11/09/2022)

 


 

PACER Service Center
Transaction Receipt
11/11/2022 11:42:47

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:22-cv-04114

Create an Alert for This Case on RECAP

Roesle v. Nolan Star Trucking LLC et al
Assigned to: Judge David Hittner

Case in other court:  400th Judicial District Court of Fort Bend County, 19DCV267154

Cause: 28:1441 Notice of Removal

Date Filed: 11/28/2022
Jury Demand: Defendant
Nature of Suit: 190 Contract: Other
Jurisdiction: Federal Question
Plaintiff
Cameron Roesle represented by Derek W Loetzerich
The Law Office of Derek Loetzerich
PO Box 542069
Houston, TX 77254
713-955-8543
Email: derek@loetzerichlaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
Nolan Star Trucking LLC
Defendant
Robert Foran represented by Robert Foran
8716 Blackhawk Blvd
Houston, TX 77075
346-702-6951
PRO SE

 

Date Filed # Docket Text
11/28/2022 1 NOTICE OF REMOVAL from 400th Judicial District of Fort Bend County, case number 1-9DCV-267154 ( Filing fee $ 402) filed by Robert Foran, Nolan Star Trucking LLC. (Attachments: # 1 Civil Cover Sheet)(TerriHanniable, 4) (Entered: 11/28/2022)
12/01/2022 2 First MOTION to Remand by Cameron Roesle, filed. Motion Docket Date 12/22/2022. (Attachments: # 1 Exhibit A – Judgment, # 2 Exhibit Motion for Contempt, # 3 Proposed Order to Remand)(Loetzerich, Derek) (Entered: 12/01/2022)
12/02/2022 3 ORDER that any response to the First Motion to Remand must be filed on or before December 9, 2022 at 12:00 p.m. or the motion will be deemed unopposed. (Signed by Judge David Hittner) Parties notified.(ealexander, 4) (Entered: 12/02/2022)

 


 

PACER Service Center
Transaction Receipt
12/02/2022 22:46:50

MEMORANDUM OPINION

Trial was held on November 8, 2022. For the reasons so stated the Complaint for Turnover and Related Relief is granted in part and denied in part.

PROCEDURAL BACKGROUND

The debtor, Preferred Ready Mix LLC, the plaintiff herein (“Ready-Mix”) brought suit against Robert Berleth, (“Berleth”) a State Court receiver in this adversary under four counts, Turnover, Stay Violation, Conversion and Disallowance of Claim. Prior to the filing of this adversary proceeding the debtor was the owner/operator of concrete mixing trucks. The debtor is a limited liability corporation, which is fifty percent owned by Robert Foran (“Foran”). Berleth and Associates has been dismissed from this proceeding.1

1 ECF No. 22

Foran had financial difficulty, and after a Texas state court suit styled Roesle v. Foran et al, 19-DVC-267154, in Fort Bend County, 400th Judicial District Court, entered default judgment2 against Foran and Nolan Star Trucking, LLC, Berleth was appointed as receiver.

The order appointing receiver was first entered, as to Foran and Nolan Star Trucking on June 4, 2021,3 and then on September 30, 2022, by an ex parte order supplement receivership4 also against Preferred Ready-Mix, LLC.5 Pursuant to the ex parte order, Berleth seized, in part, the assets of Ready-Mix on or about October 1, 2021.

On October 14, 2021, the debtor filed a Chapter 11 case.6

By October 21, 2022, Berleth had actual notice of the bankruptcy filing.7

At this juncture, given proper notice by the debtor of the filing and demand for possession of the seized assets by counsel, the Court would have expected an orderly progression in this case.

That is seized assets would have been turned over to the debtor, and Berleth would have filed a claim for administrative expenses.8

This did not occur.

Ready-Mix, unfortunately, had very serious issues with its choice of counsel. Counsel who filed the case for Ready-Mix was unresponsive, disappeared, and ordered to disgorge her retainer.

Ultimately, the Court was forced to issue an arrest warrant as her unresponsiveness accrued.

She was arrested and has filed personal bankruptcy to avoid the Court’s disgorgement order entered in this case against her.

2 ECF No. 53-1

3 ECF No. 53-2

4 ECF No. 53-4

5 The Court issues no ruling as to the validity or appropriateness of this order. While raised at trial, it was not plead and not relevant to the causes of action raised by the debtor/plaintiff.

6 Case No. 21-33369

7 Berleth admitted having notice by October 21, 2022 but the Court finds that he had actual notice on October 14, 2021, the same day as the filing of the Chapter 11 petition.

8 Pursuant to 11 USC § 542 and/or § 543.

This, unfortunately, led to a delay in turnover for which Berleth is not responsible.9

However, the debtor did make demand on November 10, 202210 and Berleth should be held liable for any delay thereafter.

By two letters, one dated November 10, 2021, and one dated November 29, 2021, counsel for the debtor requested return of trucks, equipment, tools and various other items.

Berleth did not comply with the November 10, 2021 demand. He thereafter caused further delay resulting in a partial turnover of trucks on November 20, 2022, which was followed up with an additional turnover on December 6, 2022.

This adversary proceeding was thereafter filed on March 7, 2022.

FACTUAL FINDINGS AND CONCLUSIONS OF LAW

Berleth on October 1, 2021, seized six Peterbilt Mixer Trucks, a 2003 Ford Model F250, compressor and tools on the Ford Truck, office supplies and office records from the debtor.

While demand for turnover was not made immediately after the filing of the Chapter 11 of the debtor due to issues of counsel, demand was properly made by the debtor’s new counsel for return of these items on November 10, 2021.

Thereafter, emails11 indicate the response of Berleth12 to the debtor and vindicate the debtor’s complaints against him.13

Most of these responses are serious

9 The Court finds a ten-day delay for which Berleth is liable but only from November 10, 2021, to November 20, 2021. The remainder of the delay is directly attributable to the initial representation [and lack of action] of the debtor by its initial counsel as described herein. The mixing trucks and Ford Truck sat unused between seizure and turnover to the debtor, which was fifty days. Given their age and mileage (See pictures at ECF Nos. 53-5 – 53-11) it is not unexpected that they would have mechanical difficulties that the debtor would have to repair. The trucks had battery/tire issues [batteries discharged, and tires went flat] and in one instance due to nonuse the brakes pads fused to the brake discs.

10 ECF No 54-3

11 ECF No. 53-17

12 “I really need my tow fee ($5,565), and I think I can get the tow guy to take his invoice as an administrative expense. Can your guy do that, and we’ll get these tracks released this weekend.” “Please see attached invoice which will need to be paid by certified funds prior to any release of the vehicles.” “… there are several serious issues with this case that I would like to discuss with you, most importantly your authority to represent Preferred Ready-Mix, LLC.” “I’ll do $2,500 with the rest of my expenses accepted as administrative expenses if he turns over the blue Mack daycab he has previously been ordered to surrender.”

13 Berleth also claimed his delay in turnover was due to his going on vacation. As stated on the record, the Court does not consider his vacation, apparently a cruise, in any way a viable excuse for any delay in turnover. As a claimed “expert” receiver, he cannot simply disappear for ten days on vacation and not have associate counsel to which to turn emergency matters, like the one in this case, to during his absence.

impediments to immediate turnover and are patently impermissible.

Berleth had no authority to condition turnover.

He intentionally and improperly used the leverage of his possession of the debtor’s major assets and made demands for payment against the debtor in order to thwart immediate turnover.

This is impermissible.

Additionally, he

[or his agents] collected estate assets from the debtor in the form of a $2,500.00 payment without Court authority.

This type of behavior cannot be condoned and must be remedied by this Court.

Berleth’s failure to act to turn over assets, together with his demands, effectively held the major assets of the debtor hostage.

Berleth in his testimony indicated that he had followed the rules in this bankruptcy case.

The Court strongly disagrees. The Court finds that Berleth attempted to use his position as a state court appointed receiver to thwart the provisions of 11 U.S.C. §§ 542 and 543.

Berleth provided an accounting to this Court in the underlying bankruptcy case on February 18, 2022.14

The accounting is generous in Berleth’s view of the facts but confirms the turnovers on November 20, 2021, and December 6, 2021.

The Court has applied the preponderance of the evidence standard to all claims of the plaintiff, except as noted and placed the burden of proof on the plaintiff.

TURNOVER

Turnover is available to a trustee or debtor-in-possession.

Section 542 of the Bankruptcy Code generally requires a noncustodial entity who has possession, custody, or control of property of the estate that the trustee may use, sell, or lease under Section 363 or may exempt under Section 522 to deliver to the trustee and account for the property or the value of such property.

Section 543 generally requires a custodian with knowledge of the commencement of the case to deliver to the

14 Case No. 21-33369, ECF No. 100

trustee and account for such property of the estate and the proceeds of such property.

The provisions of Section 542(a) of the Bankruptcy Code, governing the turnover of tangible property, are intended to be self-executing.

The debtor/plaintiff has by clear and convincing evidence met its burden as to the six Peterbilt Mixer Trucks, the 2003 Ford Model F250 and the compressor.

The Court can find that as to this property prior to turnover

(1) the property was in the possession, custody or control of another entity;

(2) the property could be used in accordance with the provisions of Section 363;

and

(3) the property had more than inconsequential value to the debtor’s estate.

However, as to the remainder of the property claimed by the debtor to be subject to turnover, the evidence is less substantial [as later described] and fails to meet a burden of clear and convincing evidence or even a lesser evidentiary standard of a preponderance of the evidence.

Turnover of the six Peterbilt Mixer Trucks, the 2003 Ford Model F250 and the compressor has already occurred.

The debtor seeks damages as a result of Berleth’s actions, including attorney fees and costs.

The court finds it may sanction a party for violation of sections 542 or 543 of the Bankruptcy Code.

The debtor did not call a witness for attorney’s fees, so no attorney fees are awarded, but the Court grants damages of $500.00 per day, for each of the six Peterbilt Trucks and the Ford Truck, for each of the ten days the vehicles were not turned over.

Therefore, there is a total damage award of $35,000.00 for the plaintiff and against Berleth.

AUTOMATIC STAY

A debtor may recover damages for violation of the automatic stay in the context of a third party’s exercising of control over property of the estate subject to a turnover proceeding or demand pursuant to Section 362(a)(3) of the bankruptcy code.

The burden of proof on damages is on the

plaintiff, and damages must be proven with reasonable certainty.15

Here, the plaintiff seeks remedies for violation of 11 U.S.C. § 362, including any remedies under 11 U.S.C. 362(k).

Berleth argues that since the plaintiff is not an individual, it does not have standing to seek damages under 11 U.S.C. § 362(k).16

The Court does not find that persuasive, as the Fifth Circuit has noted that a corporate debtor fell within the definition of an individual.17

Berleth admits, however, that the Court does have the authority to find contempt for the failure to abide by a court order.

Here, the Court finds Berleth’s actions were with actual knowledge of the bankruptcy filing and intentional, with the intent to deprive the debtor of his assets.

Additionally, his actions were not in good faith and in contravention of the provisions of the automatic stay.

Furthermore, the Court finds that Berleth did more than just passive retention of estate property, as demand was made.18 Consequences for violations of the automatic stay can be severe.

Parties that willfully violate the automatic stay may be liable to debtors for actual damages, including costs, attorneys’ fees, and, in appropriate circumstances, punitive damages.19

Here, actual damages would be duplicative of the damage award from violation of sections 543 and 542 of the Bankruptcy Code.

However, to the extent the prior award of damages is inappropriate, it is awarded here as actual

15 In re Garza, 605 B.R. 817(Bankr. S.D. Tex. 2019).

16 Brief, ECF No. 49, page 4.

17 In re Community Home Financial Services, Inc., 583 B.R. 1, (Bankr. S.D. Miss. 2018), citing St. Paul Fire & Marine Ins. Co. V. Labuzan, 579 F.3d 533, 541 (5th Cir. 2009); Matter of Community Home Financial Services Corporation, 32 F.4th 472, 487 (5th Cir. 2022) (“we have previously held that both debtors and creditors have standing to sue under

§ 362(k)).

18 City of Chicago, Ill v. Fulton, 141 S.Ct. 585, 590-92 (2021) (holding that the passive retention of estate property, absent a turnover order or demand, does not violate the automatic stay). Here, a demand for turnover was made by plaintiff on November 10, 2021, and the property was not returned until November 20, 2021, and December 6, 2021. The facts differ from the facts in City of Chicago as this adversary was filed, this Court held a trial, and procedural safeguards were followed.

19 Section 362(h) provides: “An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.”

damages on the same calculation noted above.20

Additionally, given the finding of bad faith and intentional actions by Berleth, the Court awards punitive damages of $10,000.00.

Accordingly, total damages for violation of the automatic stay are awarded in the amount of $45,000.00 for the plaintiff against Berleth.

CONVERSION

The Court finds that the plaintiff has failed in its burden of proof of conversion.

There are four elements to a conversion claim:

(1) Plaintiff owned, had legal possession of, or was entitled to possession of the property;

(2) Defendant assumed and exercised dominion and control over the property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with plaintiff’s rights;

(3) Plaintiff made a demand for the property;

(4) Defendant refused to return the property.21

The debtor’s evidence of ownership, its legal title, and possession of the tools it claims were converted by Berleth is lacking.

The debtor had no inventory of the tools it claims were converted.

Moreover, there was no specific list of tools reflected in the asset schedules filed in the Chapter 11 case.

The pleadings in the complaint as to the tools converted are without specificity.

The list of tools introduced into evidence is not credible.22

The list was prepared on the eve of trial from dubious memory, making the list suspect, and the values even more so.

Prepared at least 396 days after the seizure [October 1, 2021 to November 1, 2022] it simply is not credible enough to meet the burden of proof required for a finding of ownership for conversion.

Still further, the pictures presented by Berleth of the tools that were in the Truck after its seizure23 placed more

20 In re Imperial Petroleum Recovery Corporation, 2021 WL 933989, at *9 (Bankr. S.D. Tex. Mar. 11, 2021) (Generally damages for willful stay violations are limited to actual damages, and must be supported by sufficient factual findings).

21 Apple Imports, Inc. v. Koole, 945 S.W.2d 895, 899 (1997).

22 ECF No. 54-14

23 ECF Nos. 53-5 – 53-11

doubt that these tools existed or that they were converted. Therefore, the plaintiff fails on this claim.

DISALLOWANCE OF CLAIM

The administrative expense claim filed on February 18, 2022 by Berleth requesting  $7,000.00 is disallowed.24

Berleth’s application for an administrative claim requests compensation under 11 U.S.C. § 503(b)(1)(A) as he claims that he incurred these expenses post-petition “in exchange for the assets being returned so that the Debtor could continue to conduct business.”

In assessing whether an administrative expense should be awarded, the Fifth Circuit has held that a § 503(b)(1)(A) expense “must have been of benefit to the estate and its creditors.”

First, and importantly Berleth is guilty of demanding and receiving estate property for turnover without court authority.25

This is sufficient cause to disallow his claim.

However, his delay in turnover, including the leverage of asset possession, and his improper demand for payment greatly inflated any claims he may have held.

Therefore, Berleth’s claimed administrative expense was of no benefit to the estate and its creditors. The claim is either wholly or mostly self-serving and inflated due to his improper actions detailed in this order.

CONCLUSION

The Court grants judgment to the Plaintiff under three counts, Turnover, Stay Violation, and Disallowance of Claim.

The Court denies relief on the count of conversion.

THEREFORE, IT IS ORDERED that judgment is granted in favor of the plaintiff, Preferred Ready-Mix LLC, in the amount of $45,000.00, comprised of actual damages in the amount of $35,000.00, and punitive damages in the amount of $10,000.00.

24 Bankruptcy Case No. 21-33369, ECF No. 98

25 Emails indicate Berleth or his agents demanded greater sums but received $2500.

IT IS FURTHER ORDERED that Robert Berleth’s administrative claim in the amount of $7,000.00 is disallowed.

All other relief is denied. This is a final order disposing of all other claims.

SIGNED 11/09/2022

UNITED STATES BANKRUPTCY JUDGE JEFFREY NORMAN

Berleth’s Misconduct Warranted Disciplinary Action and Criminal Referral. Judge Sim Lake Rejected All.

Texas Lawyer Berleth’s misconduct mirrors a case we highlighted on LIF, the Allan Campbell Pen Series. Judge Lake’s Reprimand is Offensive.

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Texas Lawyer Robert Berleth and His Law Firm are in Violation of the Texas Finance Code

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How Does Texas Lawyer and Bandit Robert Berleth Still Have Legal Access to Houston’s Federal Court?
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