Judge Jacqueline P. Cox - Opinions / Outlines

Judge Jacqueline P. Cox

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.

04 A 02333, 04 B 09265

United States Trustee made a variety of legal challenges to a bankruptcy petition preparer’s conduct under various subsections of 11 U.S.C. § 110 in two separate chapter 7 cases. After conducting an evidentiary hearing, the court found that the bankruptcy petition preparer violated 11 U.S.C. § 110(b)(1), § 110(c)(1)-(2) and § 110(g)(1). The court imposed the maximum fine for each violation. The court also granted the United States Trustee’s request under 11 U.S.C. § 110(j) for an injunction permanently barring the defendant from operating as a bankruptcy petition preparer.

04 B 00114

Prior to the debtor filing a chapter 13 bankruptcy, the debtor’s personal residence was purchased by a third party at a foreclose sale initiated by the holder of the second mortgage against the property. The debtor and the successful bidder entered into an oral agreement whereby the debtor could retain the fee simple interest in her personal residence in exchange for the purchase price paid plus interest. Both parties agreed to extend the state court order for possession, which normally accompanies a sale-confirmation order, several times between August and December of 2003. The successful bidder alleged that the debtor filed her chapter 13 case for the sole purpose of delaying or thwarting its pursuit of an order for possession that was likely to be issued by the state court in the foreclosure proceeding. The successful bidder requested relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1) or an order of dismissal with a 180-day bar against refiling pursuant to 11 U.S.C. §§ 1307(c) and 349(a) so that it could seek to have the debtor dispossessed from the property. The court concluded that under the totality of the circumstances, dismissal under 11 U.S.C. § 1307(c) and 11 U.S.C. § 349(a) was not appropriate, as the debtor had not abused the bankruptcy process. However, the court did hold that “cause” existed to grant relief from the automatic stay because the debtor no longer held an interest in the property.

03 B 45189

The debtor filed for chapter 11 bankruptcy after MB Financial Bank unexpectedly set off funds in one of its bank accounts to satisfy an overdue loan obligation. While a settlement to return some of those funds was pending, the debtor’s president loaned the debtor “emergency advances” to ensure a construction project could proceed smoothly and to pay employee insurance premiums. The advances were made without notice to other parties or prior court approval. The debtor moved to repay the advances as an administrative expense. Two creditors objected. At issue was whether the advances qualified as valid post-petition extensions of credit to the debtor under 11 U.S.C. § 364. The Court held they were not since the advances were not incurred during the ordinary course of business as they were “emergency” advances. Also, the advances did not meet the vertical dimensions test that examines the reasonable expectations of creditors in light of their past relationship with the debtor and its incurrence of debt, including the amount, terms, frequency, sources, and timing of pre-petition extensions of credit from various sources. The Court also held that the debtor’s president did not hold a general unsecured claim since the advance was made post-petition.

03 B 46296

Plaintiff in a state court alter ego action against two principals (and a Judgment Creditor of the debtor) of a corporate chapter 7 debtor filed a motion to dismiss the debtor’s case or in the alternative, lift the automatic stay to permit the state court action to proceed. Noting that corporate chapter 7 cases have very limited purposes and that they do not demand the type of reorganizational analysis required in a chapter 11 or chapter 13 case, the court held that the debtor’s case was filed in “bad faith” and dismissed it for “cause.” The court concluded that the case served only to stay Plaintiff’s collection efforts, was an unfair litigation tactic designed to delay the Plaintiff’s state court alter-ego claim and that it was an attempt to shift the dispute, which could be resolved in state courts, to a bankruptcy forum.

03 B 29854, 03 A 03732

Ex-wife of a solvent chapter 11 debtor, who was a resident of Texas, moved to dismiss his case for “cause” pursuant to 11 U.S.C. § 1112(b), alleging that the debtor did not file his case in good faith. She also requested dismissal, or transfer of the case for improper and inconvenient venue under 28 U.S.C. § 1408(1) and Bankruptcy Rule 1014(a), to the more convenient forum of the Northern District of Texas. The court found that the debtor’s case was filed with the intent to delay his ex-wife from exercising traditional state law collection rights stemming from a state court judgment while he was attempting to collaterally attack the state court judgment underlying her claim. The court held that “cause” existed under 11 U.S.C. § 1112(b) to dismiss the bankruptcy case because it was not filed in “good faith.” The court additionally held that “cause” existed under 11 U.S.C. § 349(a) for dismissal with a one year bar to refiling a bankruptcy case because the debtor’s behavior showed a tendency toward recycling his contentions and interpretations of law rejected by one court to another court (in either the state or federal system) that lacked appellate jurisdiction over the rulings of which he complained.

In re Mary Will
November 20, 2003

02 B 36426

Although finance company’s allowed secured claim was paid in full in a prior chapter 13 case, which was later converted into a chapter 7, it refused to release the lien. After receiving a discharge in the chapter 7 case, the debtor filed another chapter 13 case but did not schedule the finance company as a creditor because it was her belief that the debt had been extinguished in the prior case. Having no notice of the new case, the finance company repossessed the vehicle and claimed that a fully secured balance still existed. The debtor filed a complaint against the finance company for damages and turnover of the car and alleged a willful violation of the stay pursuant to 11 U.S.C. § 362(h). The finance company filed a motion to annul the automatic stay and objected to confirmation of the debtor’s chapter 13 plan. The court held that the finance company’s refusal to expeditiously return the car to the debtor once notified of the pending chapter 13 case was a willful violation of the automatic stay. As such, the motion to annul the automatic stay was denied. The debtor was granted costs and awarded attorney fees along with compensatory and punitive damages. The issue involving the objection to confirmation was not litigated.

In re Sandra Lee Wright
October 20, 2003

03 B 02687

Unsecured creditor moved to file a tardy proof of claim and to be included in the debtor’s chapter 13 plan. The creditor alleged that notice of the proof of claim filing deadline was sent to an incorrect address. The court held that it lacked authority under the Bankruptcy Code or the Bankruptcy Rules to grant the creditor’s request to file a late claim. The court further held that the Due Process Clause did not provide an equitable exception to the otherwise strict terms of the chapter 13 claims bar date because the Bankruptcy Code, when construed as a whole, provides other forms of relief to creditors who do not have actual knowledge of a bankruptcy case in time to exercise procedural rights essential for protecting their claims.

In re Evelyn Watkins
August 22, 2003

03 B 21660

Secured creditor filed a motion requesting relief from the automatic stay in order to pursue its state law rights and remedies with respect to the debtor’s car that was stolen and totaled pre-petition. It additionally requested an order pursuant to Bankruptcy Rule 9013 directing the insurance company to pay it the full settlement amount in order to fulfill the pre-petition state-court judgment denying declaratory relief in favor of the debtor. The debtor argued that the attorneys’ fees incurred due to her attempt to collect the insurance proceeds should be paid out of the proceeds because her attorney is entitled to a superior equitable lien against the proceeds as a result of their contingency-fee agreement. The court held that full faith and credit must be afforded to the state court judgment in favor of the secured creditor on the issue. The court lacked subject-matter jurisdiction to consider the argument under the Rooker-Feldman doctrine. The court also held that the debtor could not claim a wild-card exemption in the insurance proceeds; nor could the debtor attempt to avoid the lien under 11 U.S.C. § 522(f)(1). The motion to modify the stay was granted.

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