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In re A Trucking Crane Rental & Repair Co.

January 23, 2008

IN RE: A TRUCKING CRANE RENTAL & REPAIR CO., DEBTOR.
ALBERT O'ROURKE, APPELLANT,
v.
GERALD DAVIS, APPELLEE.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

Bankruptcy No. 05-7432-PB7

ORDER AFFIRMING THE BANKRUPTCY COURT'S ORDER; DISMISSING THE APPEAL WITH PREJUDICE AND DIRECTING ENTRY OF JUDGMENT Chapter 7 Trustee,

Appellant Albert O'Rourke ("O'Rourke" or "appellant") appearing pro se,*fn1 filed the above-captioned bankruptcy appeal on March 27, 2007. Appellant challenges the bankruptcy court's denial of his $1.1 billion dollar claim against the bankruptcy estate. The appeal has been fully briefed. For the reasons set forth below, the decision of the bankruptcy court will be affirmed in its entirety and the appeal dismissed with prejudice.

ISSUE PRESENTED

Did the bankruptcy court err when it disallowed appellant's Proof of Claim by sustaining appellee's objection to the claim.

STANDARD OF REVIEW

An appellant may petition the district court for review of a bankruptcy court's decision. . R. BANKR.P. 8013.*fn2 The applicable standard of review is identical to that employed by circuit courts of appeal in reviewing district court decisions. See Heritage Ford v. Baroff (In re Baroff), 105 F.3d 439, 441 (9th Cir. 1997). Legal conclusions are reviewed on a de novo basis, and factual determinations are assessed under a "clearly erroneous" standard. Murray v. Bammer (In re Bammer), 131 F.3d 788, 792 (9th Cir. 1997)(en banc).

The test for clear error is not whether the appellate court would make the same findings, but whether the reviewing court, on the entire evidence presented, has a definite and firm conviction that a mistake was made. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985). Therefore, a reviewing court may not overturn a decision, even if it would have weighed the evidence in a different manner, so long as the trial court's view of the evidence is plausible in light of the entire record. Id. In applying the clearly erroneous standard of review, the appellate court views the evidence in the light most favorable to the party who prevailed below. Lozier v. Auto. Owners Ins. Co., 951 F.2d 251, 253 (9th Cir. 1991).

PROCEDURAL BACKGROUND

An involuntary Chapter 7 petition was filed against A Trucking Rental and Repair Co. dba A.T.C. Rentals and Repairs, Inc. ("ATC") on August 12, 2005, in the United States Bankruptcy Court for the Southern District of California ("bankruptcy court") . The case was converted to a voluntary Chapter 11 case and a trustee appointed for the ATC bankruptcy estate ("Estate"). Thereafter, the court ordered that the case be reconverted to a Chapter 7 case.

One of the assets of the ATC estate is real property located at 2995 Commercial Street, San Diego, California 92113 (the "Property"). Appellant O'Rourke filed an unsecured non-priority Proof of Claim in the amount of $1.1 billion based upon his alleged sub-tenancy interest in a brick building on ATC's Property.*fn3

Gerald Davis, the Chapter 7 Trustee and appellee ("Trustee" or "appellee"), filed his objection to the claim on August 10, 2006. Appellant requested a hearing that was rescheduled several times. The bankruptcy court held an evidentiary hearing on March 15, 2007. The Trustee provided various exhibits and the testimony of four witnesses during the hearing. Appellant offered no witnesses on his behalf but provided his own testimony during the hearing and offered a copy of a one-page document dated November 2, 1994, to support his claim that is entitled: "Assignment of Sub-Lease and Tenancy to Jeff Pease and Al O'Rourke by Master Tenant Ralph Hughes, with a Retained interest by Hughes ('the Sublease')."*fn4 Based upon the Sublease document, appellant argued he held a sub-tenancy interest in a brick building located on the Property that Ralph Hughes ("Hughes") allegedly subleased to appellant. The bankruptcy judge sustained the Trustee's objection to the claim at the end of the evidentiary hearing. The Court issued a written order that was filed on April 3, 2007. Appellant filed his Notice of Appeal on March 23, 2007.

DISCUSSION

A. Legal Standard re: Proof ...


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