### THE HONORABLE HOWARD F. SACHS, United States District Judg e

for the Western District of Missouri, sitting by designation. ___________ No. 96-1390

___________ In re: Gary Joe Dean; * Lucille M. Dean, * * Debtors. * *

----------------------- * * Denitia Nichols; Robert J. * Johnson; Ashley Investment * Services, Inc.; Genesis * Development Corporation; * Appeal from the United States Premier Industrial Coatings, * District Court for the Inc.; Global Traffic Service, * Western District of Arkansas. Inc.; Global Industrial * Supplies, Inc., * * Appellants, * * v. * * William Randall Wright, Trustee * for Gary Joe Dean & Lucille M. * Dean, * * Appellee. *

__________ Submitted: November 22, 1996 Filed: February 20, 1997

__________ Before RIC HARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and SACHS, 1 District Judge.

___________ MAGILL, Circuit Judge.

### The Honorable James G. Mixon, Chief Bankruptcy Judge, United

States Bankruptcy Court for the Western District of Arkansas. The Honorable Harry F. Barnes, United States District Judg e for the Western District of Arkansas. -2- The d efendants in this 11 U.S.C. § 542 (1988) bankruptcy turnove r proceeding, Robert J. Johnson, Denitia Nichols, and several corporations, appealed the adverse decision of the bankruptcy court to the distric t 2 court. The district court affirmed the bankruptcy court's decision, and

3 the defen dants now appeal to this Court. The defendants argue that th e bank ruptcycourt erred when it (1) denied the defendants' motion fo r bank ruptcycourt abstention to state court, and (2) entered an orde r restraining the defen dants from disposing of assets prior to the entry of fina l judgment. The defendants also argue several other grounds fo r reversal. We affirm.

I. The underlying matter in this case is the Chapter 7 bankruptcy of Joe and Lucy Dean, the debtors, filed in July 1990. The bankruptcy court foun d that Joe Dean was defrauded by Johnson, who was Joe Dean's attorney, a s well as by Johnson's legal secretary, Nichols.

The matter currently before this Court is the turnover proceedin g filed by the trustee of the bankruptcy estate, William Randall Wright, on February 12, 1993, against Johnson and Nichols, as well as against certain corporate defendants, including Ashley Investment Services, Inc., Genesis Development Corporation, Premier Industrial Coat ings, Inc., Global Traffic Service, Inc., and Global Industrial Supplies, Inc. The trustee is seekin g the turnover of stock and certain assets of Hi-Tech Coatings, Inc. (Hi

Tech) and an accounting pursuant to § 542. See 11 U.S.C. § 542.

### -3- In respon se to the trustee's turnover request, the defendants filed
a moti on requesting bankruptcy court abstention and that the turnove r proceeding be decided in state court. The bankruptcy court denied thi s motion and heard the turnover proceeding itself. At the request of the defendants, th e turnover trial was bifurcated. Inthe first phase, the bankruptcy court determined the ownership of the Hi-Techstock and certain assets. The bankruptcy court entered an order on Octob er 20, 1993, holding, inter alia , that (1) Johnson is th e beneficial owner of all of the defendant corporations; (2) Johnson an d Nichols c onspired to defraud the debtor Joe Dean of his interest in Hi

Tech; (3) the debtors are the equitable owners o f Hi-Tech; (4) the trustee is entitled to a turnover of all the shares of H i-Tech from the defendants pursuant to 11 U.S.C. § 542; and (5) Nichols and Johnson must provide an accounting. See Bankr. Mem. Op. at 23-28 (Oct. 22, 1993). Furthermore, the bankruptcy court found that "irreparable injury may occur to th e debtors' estate if Johnson, Nichols and the corporate defendants are not restrainedfrom disposing of other assets or placing those assets beyond the reach of the trus tee." Id. at 27. Accordingly, the bankruptcy court entered a restrainingorder enjoining Johnson, Nichols, and the corporate defendants "from disposing of any assets held ei ther in their name or held equitably for them by another person." Id.

Be fore the second phase of the turnover trial was completed, th e defendants filed a motion to lift the restrainin g order and grant them the authority to transfer assets so that they could pay their attorney. This motion was denied, and the defendants appealed t his ruling to the district court. The second phase of the turnover tri al was the accounting phase. At the conclusion of this phase, the court entered judgment against Johnson for $643,654.00 and against Nichols for $248,097.55. Judgment was als o entered against the corporate

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defendant s for $891,451.55. See Bankr. Mem. Op. at 38 (July 29, 1994)
. In a ddition, the court granted the trustee an equitable lien agains t Nichols's homestead. Id.
The def endants appealed these rulings as well as the amount of th e judgments entered aga inst them to the district court. The district court affirmed.

II.
The defendants argue that the bankruptcy court should have abst ained. While the district court had jurisdiction to review this issue, see 2 8 U.S.C. § 158(a) (1994), we do not. See 28 U.S.C. § 1334(d) (1994).

We may n ot review a bankruptcy court's decision whether to abstai n from a proceeding if that proceeding is a core proceeding. See 28 U.S.C. § 1334(c) and (d) (19 94). While the bankruptcy code does not define core proceedings, 28 U.S.C. § 157(b)(2) (1994) provid es a non-exclusive list of proceedings that have been designated as core pr oceedings. In particular, this list includes as a core proceeding "orders to turn over property of the estate . . . ." 28 U.S.C. § 157(b)(2)(E).
The p roceeding before the bankruptcy court was an 11 U.S.C. § 54 2 turnov er proceeding--that is, a proceeding used to effectuate the "tur n over [of] property of the estate . . . ." 28 U.S.C. § 157(b)(2)(E). The trustee instituted th e turnover proceeding before the bankruptcy court in order to bring the Hi-Tech stock and certain assets owned by the debto r back into the bankruptcy estate. As such, it was a core proceeding. See id. ; cf. In re Cassidy Land & Cattle Co. , 836 F.2d 1130, 1133 (8th Cir
. 1988) (holding that a turnover proceeding involv ing a mortgage foreclosure that will result in assets being brought into the bankruptcy estate is a core proceeding); In re Gallucci , 931 F.2d 738, 742 (11th Cir. 1991)

### -5-

(holding that the debtor must have an interest i n the property that is the subject of the turnover proceeding for it to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(E)); In re Kinkaid , 917 F.2d 1162, 1165 (9th Cir. 1990) (noting that, where a trustee in a turnover proceeding is seekin g property owned by the debtor (as opposed to merely property owed to th e debtor), "determining the nature and extent of property of the estate is also a fundamental function of a bankruptcy court" and therefore th e turnover action is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) (quotations and citations omitted)). Consequently, because the turnover proceeding in this case was a core proceeding, we do not have jurisdiction to review the bankruptcy court's decision to refrain from abstaining.

III.
The defendants argue that the bankruptcy court erred when it entered an order restraining them from disposing of any assets before fina l disposit ionof the turnover trial. The defendants assert that th e bankru ptcycourt's restraining order amounted to the sort of improper , prejud gment sequestration prohibited by Fuentes v. Shevin , 407 U.S. 6 7 (1972). They rely on the fact that the second phase of the turnover trial , the accounting phase, had not yet been completedto argue that the court's re straining order was an improper prejudgment sequestration of thei r property. We disagree.

Fuentes i s inapposite. In Fuentes , the Supreme Court struck a s unconstitutional a Florida replevin statute that allowed a local sheriff to take property, without prior notice or a hearing of any kind, from a person ac cused of wrongfully holding that property. Id. at 96. I n contrast, the defendants here had a full and fair opportunity to defen d themselves before the bankruptcy court. It was only after the first phase of the turnover trial, which

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establ ishednot only the defendants' wrongful conduct but also th e egregious nature of t hat conduct, that the restraining order was entered. Furthermore, given the defendants' demonstrated proclivity for liquidating assets in order to hide them from the trustee, see Bankr. Mem. Op. at 27 (Oct. 22, 1993), the restraining order falls squarely within the ambit of 11 U.S.C. § 105(a) (1988), which allows the bank ruptcy courts to "issue an order . . . that is necessary or appropriate to carry out the provision of thi s title." Thus, we conclude that the bankruptcy court's restrainin g order was not improper.

IV.
The appel lants bring to us a variety of other grounds for reversal. Having reviewed these grounds, we find them all to be meritless. See 8th Cir. R. 47B. Accordingly, we affirm.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.