Judge Jacqueline P. Cox - Opinions / Outlines

Judge Jacqueline P. Cox

02 B 08699, 04 A 01322

Creditor’s Trust created under a confirmed chapter 11 plan moved for partial summary judgment on its adversary proceeding seeking avoidance under 11 U.S.C. § 547(b) of three pre-petition transfers the debtor made to the defendant. The defendant argued that the transfers fell within the “ordinary course of business” and “new value” exceptions of 11 U.S.C. § 547(c) and were not subject to avoidance. Finding that the “ordinary course of business” exception applied even though the payments were technically late according to a new contract negotiated during the preference period, the court denied the motion for summary judgment and entered judgment for the defendant on its motion for summary judgment.

04 B 45177

Creditor requested an award of costs and attorneys’ fees it incurred when the debtor-in -possession filed a notice of appeal without first seeking a modification of the automatic stay imposed by 11 U.S.C. § 362(a). The court held that a trustee, or a debtor-in-possession, has the authority to unilaterally waive the protections of the automatic stay to proceed with acts of estate administration that would otherwise violate 11 U.S.C. § 362(a) if performed by anyone else. Creditor’s request was denied.

05 B 13874

In re Otha Isaac Special Note: two related, successive opinions regarding Chapter 13 plan confirmation The holder of mortgages on three separate parcels of property owned by the debtor objected to confirmation of her chapter 13 plan because it incorrectly listed the amount of the arrears, failed to provide for the payment of property taxes and insurance premiums, failed to correctly list the monthly mortgage payments coming due during the term of the plan, and failed to make provisions for a balloon payment. Aside from the debtor’s willingness to correct discrepancies in the plan, the debtor argued that her plan was feasible because the balloon payment would be satisfied when due by either refinancing the mortgage or selling the property. The plan would also provide that the automatic stay would automatically be modified if the balloon payment was not made according to these terms. The court found the debtor’s plan to be unfeasible under 11 U.S.C. § 1325(a)(6) because its success hinged upon the occurrence of a speculative and contingent event in the distant future.

03 B 13825, 04 A 01861

In re Dianne Logan Creditor brought an adversary proceeding against this chapter 7 debtor requesting that the debt the debtor incurred borrowing money from it to purchase a car be excepted from her discharge under 11 U.S.C. §§ 523(a)(2), (a)(4) & (a)(6). The seller of the car never registered the car’s title showing that it was transferred from the prior owner to himself and then to the debtor. Neither was the seller able to produce the title during the trial. Debtor testified that an unidentified person or company towed the car to an unidentified location after she abandoned it on the side of a road near her home because of mechanical problems. The court’s ruling in favor of the Creditor was based, in part, on the gaping holes, inconsistencies, and implausible nature of the debtor’s evidence and theory of what happened to the car.

04 B 06663, 04 A 02415

Chapter 13 debtor sought to invalidate a mortgage on her residential real estate because she did not know or understand that she was entering into a mortgage transaction due to a medical condition. Court found against the debtor due to a lack of medical evidence relating to the debtor’s medical condition at the time the mortgage was created.

04 B 02682, 04 A 02054

The debtor’s former spouse initiated an adversary proceeding against the debtor to determine whether the debtor’s obligation under a marital settlement agreement to hold him harmless on certain joint liabilities was excepted from discharge under 11 U.S.C. §§ 523(a)(5) and (a)(15). On a motion for summary judgment, the court found that the debt owed by the debtor to her former spouse was nondischargeable under § 523(a)(5).

In re Lugean Brooks
March 30, 2005

04 B 39514

Prior to the debtor’s bankruptcy filing, a “Consent Judgment of Foreclosure” was entered in a suit filed in state court to dispossess the debtor of his residence under the Illinois Mortgage Foreclosure Law. The property was purchased under an installment land contract. The debtor’s proposed chapter 13 plan attempted to cure his default under the installment land contract. The debtor filed a motion requesting the court to vacate its prior order denying confirmation of his chapter 13 plan. The debtor also moved to have his chapter 13 plan confirmed over the objection of the official title holders and the sellers under an installment land contract. The court denied the debtor’s motion and found that the debtor held merely a possessory interest in the property at the time of filing and did not possess a right to cure the default in a chapter 13 plan under 11 U.S.C. §§ 108(b) and 1322(c).

03 B 46296

After a corporate debtor’s chapter 7 case was dismissed on creditor’s motion, creditor moved under Bankruptcy Rule 9011 to be reimbursed from the debtor’s counsel for legal work its attorney performed in response to the debtor’s improperly filed voluntary petition. The court concluded that the debtor and its attorney violated Rule 9011(b)(1) of the Federal Rules of Bankruptcy Procedure by filing its chapter 7 case with the intent to delay, frustrate, and cause expense to the creditor. The court imposed a sanction under Bankruptcy Rule 9011(c) against the debtor’s counsel for the creditor’s attorneys fees.

04 B 13843

The United States Trustee filed a motion to dismiss or convert a chapter 11 case arguing that the case was not filed in good faith, that the debtor had no real need for bankruptcy reorganization, that the debtor’s plan was both unconfirmable and unfeasible, and that the true creditor body (as opposed to shareholders) would not be well served by continued prosecution of a trade-secret-misappropriation action in state court. The court concluded that “cause” existed under 11 U.S.C. §§ 1112(b)(1) and (b)(2) to dismiss the case due to the highly speculative nature of the state court action which was the debtor’s primary asset. The court alternatively found that “cause” existed that the chapter 11 case was filed in bad faith.

In re Griffin
August 26, 2004

04 B 19670

Through counsel, the chapter 7 debtors moved to redeem a vehicle under § 722. The court granted the motion but requested that counsel provide the court with additional information on the fee arrangement between the debtors and the debtors’ counsel. Supplemental documents revealed that (1) although the bankruptcy case was not filed until May 20, 2004, counsel began billing for the motion on February 8, 2004; and (2) a tripartite arrangement existed between the debtors, debtors’ counsel and a third party where the third party made a post-petition loan to the debtors to pay counsel for the pre-petition debt created by counsel’s pre-petition retainer agreement with the debtors and to redeem the vehicle from the secured creditor. The court found that the additional revenue from the redemption motion was not voluntarily disclosed to the court. The court concluded that counsel was not entitled to a fee for bringing the motion to redeem.

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