SAMPLE SUMMARY JUDGMENT BRIEF

PROCEDURAL HISTORY

This procedural history also contains the Procedural History for XXXXXX vs. XXXXXX, et als., which, according to Dick XXXXXX, will be heard on the same day of this action.

On or around November 10, 2003, plaintiff filed a Verified Complaint with Letter Brief and a proposed Order to Show Cause.

On November 12, 2003, plaintiff filed an Amended Verified Complaint, Letter Brief and Order to Show Cause.

On November 13, 2003, the Honorable XXXXXX XXXXXX, J.S.C., issued an Order to Show Cause, made returnable on January 6, 2004.

On November 20, 2003, plaintiff effectuated service of process upon all defendants and Interested Parties in accordance with the New Jersey Rules of Court.

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On or around December 2, 2003, plaintiff filed a Second Amended Verified Complaint, Letter Brief and Order to Show Cause.

On or around December 4, 2003, Defendants XXXXXX and XXXXXX filed a Counterclaim with no Answer which was filed with an emergent motion for restraints in the form of (1) restraining plaintiff from encumbering a piece of residential real estate that he gifted to himself from XXXXXX XXXXXX, (b) ordering an immediate custody changed of XXXXXX XXXXXX from plaintiff to Defendant XXXXXX and (c) restraining plaintiff from placing XXXXXX XXXXXX in a nursing home.

On December 10, 2003, a hearing was held before Judge XXXXXX pertaining to Defendants XXXXXX and XXXXXX' demand for temporary restraints which resulted in an Order (a) granting their motion to restrain plaintiff from encumbering the gifted real estate, (b) denying the demand for a custody change of XXXXXX XXXXXX, and (c) granting the demand to restrain plaintiff from placing XXXXXX XXXXXX in a nursing home.

On or around December 15, 2003, plaintiff filed a Third Amended Verified Complaint, Letter Brief and Order to Show Cause.

On December 24, 2003, XXXXXX, Esq., of the XXXXXX County Department of Social Services, Department of Adult Protective Services thereof, filed a Petition for Guardianship regarding XXXXXX XXXXXX along with an immediate demand for, inter alia, the return of the before mentioned residential real estate to XXXXXX XXXXXX.

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On January 5, 2004, the Honorable Robert XXXXXX, P.J.S.C., issued an Order to Show Cause regarding the before mentioned Petition for Guardianship.

STATEMENT OF FACTS

The facts of this case are adequately set forth in the accompanying Certification of XXXXXX J. XXXXXX. They will not be reiterated here.

LEGAL ARGUMENT

I. THE COURT HAS NOT BEEN PROVIDED SUFFICIENT EVIDENCE TO JUSTIFY AN INJUNCTION

Relief is demanded from the Court in the form of a preliminary, permanent or otherwise an emergent injunction Ordering XXXXXX XXXXXX to transfer a piece of residential real estate from himself to his father, John XXXXXX. As set forth below in the most explicit detail, the application is totally insufficient to justify such relief at this time.

In Crowe vs. De Gioria, 179 N.J. Super. 36 (App. Div.), appeal granted, 87 N.J. 412 (1981), rev'd and remanded, 90 N.J. 126 (1982), appeal after remand, 203 N.J. Super. 22 (App. Div.), certif. granted, 102 N.J. 320 (1985), aff'd, 102 N.J. 50 (1986), our Supreme Court enumerated a four-prong test, set forth below, that must be met in order for such relief to be granted.

In Crowe, Plaintiff Rose K. Crowe filed suit against her boyfriend of twenty-years, Defendant Sergio De Gioia, alleging that he had "breached his non-marital agreement to support her for life." Id., 90 N.J. at 129. Plaintiff's Complaint demanded "the court to enforce her alleged agreement with De Gioia for support, to compensate her for her services, and to award her a share of his assets, costs and counsel fees." Id., 90 N.J. at 130. Plaintiff moved for interim relief. Id.

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The Court granted her limited relief notwithstanding that defendant denied her allegations because the trial court "[f]ear[ed] the infliction of a grave injustice on Crowe if temporary relief were denied." Id. The Court granted plaintiff "$125 per week in support, permitted her to remain in the house, [and] restrained De Gioia from transferring any of his assets …." Id., 90 N.J. at 131. The Appellate Division granted defendant leave to appeal and reversed. Id.

The Supreme Court granted Certification to decide "whether temporary relief can be awarded in a suit to enforce an agreement between unmarried cohabitants." Id., 90 N.J. at 128. In reversing the Appellate Division and reinstating the trial court's Order, the Court delineated the criteria for the grant of a temporary or preliminary injunction. Justice Pollock wrote,

Our principle is that a preliminary injunction should not issue except when necessary to prevent irreparable harm.

* * * *

A second principle is that temporary relief should be withheld when the legal right underlying plaintiff's claim is unsettled.

* * * *

A third rule is that a preliminary injunction should not issue where all material facts are controverted.

* * * *

The final test in considering the granting of a preliminary injunction is the relative hardship to the parties in granting or denying relief.

Id., 90 N.J. at 133-34.

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See also Zukerman by Zukerman v. Piper Pools, Inc., 232 N.J. Super. 74, 83, fn. 7 (App. Div.1989), quoting Zoning Board of Adj., Sparta Tp. vs. Service Elec. Cable T.V., 198 N.J. Super. 370 (App. Div. 1985) (before preliminary injunction issues plaintiff must establish likelihood of success on the merits; threat of immediate and irreparable harm; and that harm to the opposing party will be minimal).

Crowe remains, to date, the leading case cited by New Jersey Court's when adjudicating demands for preliminary or emergent injunctive relief. See, e.g., Community Hosp. Group Inc. v. More, 176 N.J. 70, on remand, 2003 WL 23015055, *5 (App. Div. 2003); Subcarrier Communications, Inc. vs. Day, 299 N.J. Super. 634 (App. Div. 1997); Paternoster vs. Shuster, 296 N.J. Super. 544 (App. Div. 1997); Sherman vs. Sherman, 330 N.J. Super. 638 (Ch. Div. 1999); and, Poff vs. Caro, 228 N.J. Super. 370 (Law Div. 1987).

In Point II of this Legal Brief, XXXXXX XXXXXX sets forth an argument under the United States Constitution to the effect that it would violate the "takings" clause of the Fourteenth Amendment for the Court to Order a transfer of the said real estate to XXXXXX XXXXXX without there first being a finding that it was in appropriately transferred to XXXXXX XXXXXX to begin with. Given the fact that U.S. Constitutional issues are involved in this action, the criteria for granting such preliminary, permanent and emergent relief under Federal law is also set forth below. That criteria is as follows:

(1) whether the movant has shown a reasonable probability of success on the merits;

(2) whether the movant will be irreparably injured by denial of the relief;

(3) whether granting the preliminary relief will result in even greater harm to the nonmoving party; and

(4) whether granting the preliminary relief will be in the public interest.

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Tanimura & Antle, Inc. v. Packed Fresh Produce, Inc., 222 F. 3d 132, 140 (3rd Cir. 2000), quoting Council of Alternative Political Parties vs. Hooks, 121 F. 3d 876, 879 (3rd Cir. 1997), and Amer. Civil Lib. Union vs. Black Horse Pike Reg's Bd. Of Educ., 84 F. 3d 1471, 1477, n. 2 (3rd Cir. 1996) (en banc).

The criteria requiring a showing of probability of success on the merits cannot be overemphasized. Caselaws of the United States Supreme Court provide that, "The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits." Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 494 (1999), quoting Doran vs. Salem Inn, Inc., 422 U.S. 922, 931 (1975).

A. There Is No Threat of Immediate Irrepairable Harm.

XXXXXX XXXXXX is subject to restraints imposed upon him by the Honorable XXXXXX XXXXXX, P.J.S.C., of the Superior Court of New Jersey, Chancery Division, County of XXXXXX, in an Order dated December 12, 2003, and no evidence - not even an allegation - has been made to the effect that XXXXXX XXXXXX has a tendency to attempt to disregard those restraints. In fact, in the two months since that Order issued, the subject premises remains safe and sound and John XXXXXX continues to reside there along with XXXXXX XXXXXX in the same manner that he had in the four continuous years prior to the transfer.

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The application provides that the residence must be transferred back at this time because, inter alia, John XXXXXX may be in need of ancillary services, such as a homemaker or the like. There are two valid points to make concerning this argument. First, since MXXXXXXy, February 16, 2004, XXXXXX XXXXXX has been receiving the services of an experienced home health aide at the residence. John XXXXXX can more than afford to pay for twelve (12) hours of those services (at less than $20.00 per hour) per week without having to use funds from liquidating the real estate. John XXXXXX has an annual income from his pension and Social Security that exceeds $22,000.00 per year. In addition to that, he currently receives funding from XXXXXX County and the State of New Jersey in the vicinity of $20,000.00 per year that pays perhaps about eighty-five (85%) of the cost of XXXXXX XXXXXX attending an adult day care program, J.F.K. Hartwyck, in Edison, New Jersey. He also has phenomenal insurance as part of his pension from AT&T that requires him to pay only a nominal co-pay for medical services and $80.00 total per month for all of his medications combined. John XXXXXX has such excellent health insurance that he pays only a $10.00 co-pay every ninety (90) days for a hormone shot that he receives for his prostate cancer. His insurance pays the other $2,990.00 for each shot (each shot is considered non-evasive surgery).

Second, as set forth below in more detail below in Point I(B), John XXXXXX executed a Durable Power of Attorney in October 2000 that lists XXXXXX J. XXXXXX and XXXXXX A. XXXXXX-XXXXXX as his attorneys-in-fact and grants them the right to act unilaterally in making decisions on his behalf. The decisions that they are authorized to make on his behalf pursuant to that document include the right to gift to themselves in any amount from his estate, without court approval, providing that the said gifting does not interfere with John XXXXXX' needs.

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As such, the Court has not been presented with a suggestion of an irreparable harm that John XXXXXX may suffer if the real estate is not transferred back to him at this time, or even if the real estate is never transferred back to him at all. Under the said Durable Power of Attorney, the question before the Court is whether XXXXXX XXXXXX is currently receiving whatever services he needs and whether he will continue to do so in the future.

B. The Legal Rights Involved Herein Are Well-Established.

The one Crowe prong that favors the applicants is that the law governing this area is well established. This case presents the question of what authority an attorney-in-fact has to gift to him- or herself pursuant to authority to do so granted by the principle in a Durable Power of Attorney. It is without question that such gifting clause are valid and enforceable providing that they are fair and in accord with public policy and other applicable laws.

A general power-of-attorney does not give the attorney-in-fact the right to make gifts to him- or herself or to any other person or entity. In Re Keri, 356 N.J. Super. 170 (App. Div. 2002), certif. granted, 175 N.J. 549 (2003). It only gives him or her the right to act for and on behalf of the principle in the principle's best interests. Id. at 173, fn. 1, and cases cited. See also State vs. Kennedy, 61 N.J. 509, 512 (1972) ("But a power of attorney of course is not an instrument of gift. In itself, it is no more than … an authorization to the attorney to act for the principal").

Accordingly, the Appellate Division in In Re Keri held that two sons did not have the right to gift to themselves as attorneys-in-fact from their incompetent mother's estate, even under circumstances where the mother's care would not be adversely affected by the transfer, because the power of attorney did not grant them the authority to do so. "In 1996, she executed a general power of attorney … that … did not provide for [the attorney-in-fact] to make gifts on her behalf to himself or anyone else …" Id.

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The power of attorney in the case at bar, however, is entirely different than the one presented in In Re Keri and all of the caselaws relied upon by the Court in deciding that case. The Durable Power of Attorney executed by John XXXXXX explicitly grants plaintiff, as attorney-in-fact, the authority to make gifts at any time, of any amount, to himself or to others, without court approval, providing that doing so will not interfere with John XXXXXX' care. It explicitly provides that XXXXXX XXXXXX OR XXXXXX XXXXXX, as the attorneys-in-fact, have the right

To make gifts, outright or in trust, without court approval, to such person or persons from the group consisting of my family members (including my attorney-in-fact), in such amounts, at such time and on such terms as my attorney-in-fact may decide for the purpose, amongst others, of appropriate tax planning for my estate; provided, however, that my attorney-in-fact shall make no gift that would interfere with my maintenance at the best possible living standard in accordance to my means.

(See John XXXXXX' Durable Power of Attorney
attached as Exhibit A to the accompanying Certification
of XXXXXX J. XXXXXX.)

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Courts throughout the United States, along with all major legal encyclopedias and treatises (Am. Jur., A.L.R., C.J.S., etc.), agree that such gifting clauses are permissible and enforceable. See, e.g., Kaname Fujino vs. Clark, Attorney General D.C. Hawaii, 71 F. Supp. 1, 4 (D. Hawaii 1947), aff'd, 172 F.2d 384 (9th Cir. 1949), cert. denied, 337 U.S. 937 (1949), rehearing denied, 338 U.S. 839 (1949) ("To authorize a gift of an asset by an agent, the agent must have such a power expressly and clearly conferred"); Zawadski de Bueno v. Bueno Castro, 822 F.2d 416, 421-22 (3rd Cir. 1987), citing Von Wedel vs. McGrath, 180 F.2d 716 (3rd Cir. 1950)(holding that gifts were inappropriate because there was no gifting clause); Von Wedel vs.Clark, 84 F. Supp. 299, 300 (D. N.J. 1949) ("The terms of the power, although broad and sweeping, contain no specific authorization to make a gift"); 38A C.J.S. §13 (Contracts) ("A gift by an attorney in fact to himself or a third party is barred absent a clear intent to the contrary evidenced in the writing"); Crosby v. Luehrs, 669 N.W. 2d 635, 644 (Neb. 2003) ("fiduciary will not be allowed to feather his or her own nest unless the power of attorney specifically allows such conduct"); Praefke v. American Enterprise Life Ins. Co., 257 Wis. 2d 637, 644, 655 N.W. 2d 456, 459 (Wis. App. 2002) (using same exact language as used in Crosby, supra); and, Estate of Keatinge v. Biddle, 789 A. 2d. 1271, 1275 (Me. 2002) ("The holder of a durable power of attorney, as the agent, is not entitled to use the grantor's money for his own benefit or to make gifts to himself unless the written power of attorney specifically provides").

Accordingly, the gifting clause is per se legally valid and enforceable.

C. Just About All Of The Material Facts Are In Dispute.

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It is also in dispute as to whether John XXXXXX would have wanted XXXXXX XXXXXX to gift the entire real estate to himself; whether John XXXXXX is in need of residential care at this time; whether John XXXXXX can have the ancillary services that he allegedly needs without having to have the house transferred back to him; how to construe the gifting clause contained in the said Durable Power of Attorney; and, and how, if at all, John XXXXXX' care has diminished to any degree since the gift was made.

All of these questions will have a bearing upon whether XXXXXX XXXXXX appropriately gifted the real estate to himself, and all of those questions are in dispute.

D. XXXXXX XXXXXX Will Be Hardshipped By The Transfer.

As set forth hereinabove, there is no evidence before the Court that John XXXXXX is suffering a hardship by the real estate not being transferred back to him at this time. Furthermore, XXXXXX XXXXXX is already subject to restraints that he consented to before Judge XXXXXX preventing him from encumbering the property. Therefore, leaving the house in XXXXXX XXXXXX' name would be de minimus.

As set forth in Point II, infra, however, transferring the house from XXXXXX XXXXXX without first finding that it was inappropriately transferred to him raises significant questions of law under both the New Jersey and United States Constitutions.

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E. XXXXXX XXXXXX Is Likely to Succeed On The Merits.

XXXXXX XXXXXX is likely to ultimately succeed in this case on the merits. The arrangement suggested herein provides that John XXXXXX is entitled to have care as delineated in his Durable Power of Attorney while XXXXXX XXXXXX is entitled to gift to himself in any amount at anytime. It has already been set forth above that gifting clauses are legally permissible and enforceable per se. It has also been set forth above that XXXXXX XXXXXX is John XXXXXX' son, that XXXXXX XXXXXX has been John XXXXXX' live-in caretaker for the past four (4) years (and continues to be such to date and is more than willing to continue to be into the future) and that XXXXXX XXXXXX has always been one of John XXXXXX' primary beneficiaries as listed in his Last Will and Testament.

Accordingly, XXXXXX XXXXXX is likely to succeed on the "gifting issue" in this case.

F. Denying the Preliminary Injunction Will Serve The Public's Interests.

Public policy provides that caregivers should be permitted to gift to themselves, as compensation or otherwise, especially when they have been a live-in caretaker to the alleged incompetent for a substantial period of time as XXXXXX XXXXXX has been for the past four (4) consistent years. The Court would violate those public polices by Ordering a transfer of the real estate back to John XXXXXX under these circumstances.

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II. IT WOULD OFFEND THE N.J. AND U.S. CONSTITUTIONS TO TRANSFER THE REAL ESTATE BACK TO JOHN XXXXXX WITHOUT FIRST FINDING THE TRANSFER TO BE INVALID

The Fourteenth Amendment to the United States Constitution provides that, "No State shall … deprive any person of … property … without due process of law …" U.S. Const., Amend. XIV, Sec. I thereof. In addition, the New Jersey Constitution provides that, "All persons … have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness". N.J. Const., Art. I, Sec I.

A. The Application Requires The Court to Pre-Judge The Case.

XXXXXX XXXXXX has a property interest in the real estate that is protected by both the New Jersey and United States Constitutions. It would violate that interest to deprive him of that property without first finding that he is not entitled to it, and the facts to make that determination are materially in dispute. This procedural safeguard is well-recognized under Federal law and in the Federal Rules of Civil Procedure. See Levine v. Comcoa Ltd., 70 F. 3d 1191, 1195 (11th Cir. 1995) ("Under the Rules, it is not just notice and a hearing that allows a TRO to become a preliminary injunction, but findings of fact and conclusions of law which adjudicate the property right involved thereby satisfying due process") (dicta) (Emp. In Orig.); O'Connor vs. Peru State College, 728 F. 2d 1001, 1002-03 (8th Cir. 1984) ("The proceedings are at an early stage and to prejudge the evidence before it is fully collated and demonstrated is basically unfair. Under these circumstances, the court should avoid deciding with any degree of certainty who will succeed or not succeed"); Forts vs. Ward, 566 F. 2d 849, 851 (2d Cir. 1977) ("The existence of factual disputes necessitates an evidentiary hearing ... before a motion for a preliminary injunction may be decided"); Four Seasons Hotels And Resorts, B.V. v. Consorcio Barr, S.A., 320 F. 3d 1205, 1211 (11th Cir. 2003) ("While an evidentiary hearing is not always required before the issuance of a preliminary injunction, where facts are bitterly contested and credibility determinations must be made to decide whether injunctive relief should issue, an evidentiary hearing must be held … Where conflicting factual information place[s] in serious dispute issues central to [a party's] claims and much depends upon the accurate presentation of numerous facts, the trial court err[s] in not holding an evidentiary hearing to resolve these hotly contested issues").

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III. THE SUBJECT PREMISES IS NOT THREATENDED BY XXXXXX XXXXXX' RECENT FILING FOR CHAPTER 7 BANKRUPTCY

Over the last several days, counsel for XXXXXX XXXXXX and XXXXXX XXXXXX has taken issue with the fact that XXXXXX XXXXXX filed for Chapter 7 Bankruptcy in November 2003, which was granted in January 2004. Counsel argues that since XXXXXX XXXXXX transferred the real estate to himself after the date that he filed for Bankruptcy, but before the discharge date, that the real estate is part of XXXXXX XXXXXX' estate that may be attached upon by XXXXXX XXXXXX' creditors.

Nothing is further from the truth, and nothing is more established in Bankruptcy law than that any assets a debtor, such as XXXXXX XXXXXX, accumulates after the date of filing for bankruptcy is the sole property of XXXXXX XXXXXX' that may not be attached upon by any of his creditors except in limited circumstances, such as fraud. The date that governs is the filing date, not the discharge date that sometimes does not come for years after the filing.

The entire text of the applicable statute, 11 U.S.C. §541, is set forth below. The Court is referred to the wording of 11 U.S.C. §541(a), which states that the filing of a case under the bankruptcy code "creates an estate". Id. This statute sets forth what is and is not part of the said bankruptcy estate. 11 U.S.C. §541(a)(1) provides that the bankruptcy estate consists of all property that the debtor owns or has an interest in "as of the commencement of the case". Id. Moreover, 11 U.S.C. §541(b)(1) explicitly provides that property, such as John XXXXXX' residential real estate in the case at bar, that the debtor has access to only for the benefit of a third-party does not constitute part of the bankruptcy estate.

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(a) The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held:

(1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case.

(2) All interests of the debtor and the debtor's spouse in community property as of the commencement of the case that is--

(A) under the sole, equal, or joint management and control of the debtor; or

(B) liable for an allowable claim against the debtor, or for both an allowable claim against the debtor and an allowable claim against the debtor's spouse, to the extent that such interest is so liable.

(3) Any interest in property that the trustee recovers under section 329(b), 363(n), 543, 550, 553, or 723 of this title.

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(4) Any interest in property preserved for the benefit of or ordered transferred to the estate under section 510(c) or 551 of this title.

(5) Any interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date--

(A) by bequest, devise, or inheritance;

(B) as a result of a property settlement agreement with the debtor's spouse, or of an interlocutory or final divorce decree; or

(C) as a beneficiary of a life insurance policy or of a death benefit plan.

(6) Proceeds, product, offspring, rents, or profits of or from property of the estate, except such as are earnings from services performed by an individual debtor after the commencement of the case.

(7) Any interest in property that the estate acquires after the commencement of the case.

(b) Property of the estate does not include --

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(1) any power that the debtor may exercise solely for the benefit of an entity other than the debtor;

(2) any interest of the debtor as a lessee under a lease of nonresidential real property that has terminated at the expiration of the stated term of such lease before the commencement of the case under this title, and ceases to include any interest of the debtor as a lessee under a lease of nonresidential real property that has terminated at the expiration of the stated term of such lease during the case;

(3) any eligibility of the debtor to participate in programs authorized under the Higher Education Act of 1965 (20 U.S.C. 1001 et seq.; 42 U.S.C. 2751 et seq.), or any accreditation status or State licensure of the debtor as an educational institution;

(4) any interest of the debtor in liquid or gaseous hydrocarbons to the extent that--

(A)(i) the debtor has transferred or has agreed to transfer such interest pursuant to a farmout agreement or any written agreement directly related to a farmout agreement; and

(ii) but for the operation of this paragraph, the estate could include the interest referred to in clause (i) only by virtue of section 365 or 544(a)(3) of this title; or

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(B)(i) the debtor has transferred such interest pursuant to a written conveyance of a production payment to an entity that does not participate in the operation of the property from which such production payment is transferred; and

(ii) but for the operation of this paragraph, the estate could include the interest referred to in clause (i) only by virtue of section 542 of this title; or

(5) any interest in cash or cash equivalents that constitute proceeds of a sale by the debtor of a money order that is made--

(A) on or after the date that is 14 days prior to the date on which the petition is filed; and

(B) under an agreement with a money order issuer that prohibits the commingling of such proceeds with property of the debtor (notwithstanding that, contrary to the agreement, the proceeds may have been commingled with property of the debtor), unless the money order issuer had not taken action, prior to the filing of the petition, to require compliance with the prohibition. Paragraph (4) shall not be construed to exclude from the estate any consideration the debtor retains, receives, or is entitled to receive for transferring an interest in liquid or gaseous hydrocarbons pursuant to a farmout agreement.

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(c)(1) Except as provided in paragraph (2) of this subsection, an interest of the debtor in property becomes property of the estate under subsection (a)(1), (a)(2), or (a)(5) of this section notwithstanding any provision in an agreement, transfer instrument, or applicable nonbankruptcy law--

(A) that restricts or conditions transfer of such interest by the debtor; or

(B) that is conditioned on the insolvency or financial condition of the debtor, on the commencement of a case under this title, or on the appointment of or taking possession by a trustee in a case under this title or a custodian before such commencement, and that effects or gives an option to effect a forfeiture, modification, or termination of the debtor's interest in property.

(2) A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title.

(d) Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest, such as a mortgage secured by real property, or an interest in such a mortgage, sold by the debtor but as to which the debtor retains legal title to service or supervise the servicing of such mortgage or interest, becomes property of the estate under subsection (a)(1) or (2) of this section only to the extent of the debtor's legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold.

Id. (Emp. Supp.)

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As such, any position taken by a party in this case to the effect that the residential real estate is part of XXXXXX XXXXXX' bankruptcy estate is totally erroneous.

CONCLUSION

For the foregoing reasons the Court should not enjoin XXXXXX XXXXXX to return the real estate to John XXXXXX until adequate facts have been presented the Court. All material facts in this case are in dispute and there has been no opportunity for depositions and other discovery to be had. Finally, XXXXXX XXXXXX has set forth a prima facie case to the effect that the transfer may very well have been valid, and he has constitutionally protected property interests in the real estate until such a time as it is proven that the transfer was invalid.

Respectfully Submitted,

LAW OFFICES OF XXXXXXXXXXXXXXX,


_________________________________
XXXXXX XXXXXX, Esq.
Attorney for Defendant

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