Upon an objection to confirmation of the debtor’s chapter 13 plan, wherein a creditor alleged that the debtor could not comply with the requirements of “surrender” in section 1325(a)(5)(C) of the United States Bankruptcy Code as the debtor proposed to surrender a vehicle that had been previously stolen and that, therefore, could not be delivered to the creditor, held: “Surrender” in section 1325(a)(5)(C) does not always require the debtor to physically deliver the vehicle. Because the Debtor proposes surrender in good faith, physical delivery is not required. As a result, the creditor’s objection is overruled.
Judge Timothy A. Barnes - Opinions / Outlines
Judge Timothy A. Barnes
July 17, 2015
July 13, 2015
10 B 51428
Upon the creditor’s motion to allow claim under Federal Rule of Bankruptcy Procedure 9006, wherein the creditor sought to have the court allow its claim as a timely general unsecured claim when the claim was allegedly delivered directly to the office of the clerk of court rather than electronically filed and, despite being tendered to the clerk’s office prior to the claims deadline, not entered on the claims register until almost 4 years after the claims deadline, and where creditor sought to have the court enter an order amending the chapter 7 trustee’s previously approved final report, held: Rule 9006 does not apply to the deadline to file claims in a chapter 7 case. The claim was filed for purposes of Rule 3002 when the claim was entered on the claims register, almost 4 years after the claims deadline. As a result, the claim is a tardily filed unsecured claim which would receive zero distribution even if the final report were to be amended and, thus, the creditor’s motion is denied.
June 22, 2015
13 B 30975, 13 A 01294
Upon the Defendant’s amended motion to dismiss the Plaintiff’s adversary complaint objecting to discharge of debt owed to A&H Caring Connections, Inc. (“A&H”) pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(6) and 11 U.S.C. § 727(a), the underlying interest having been assigned to the Plaintiff by A&H and the Defendant seeking dismissal of the complaint for failure to state a claim upon which relief can be granted on the grounds that the underlying assignment is void as a matter of public policy and in violation of Illinois law, held: For purposes of testing the sufficiency of the complaint under Federal Rule of Civil Procedure 12(b)(6), the Defendant has failed to satisfy his burden of showing the complaint is insufficient. The amended motion to dismiss is DENIED.
13 B 37655, 14 A 00100
Upon the creditor’s adversary complaint objecting to the Debtor’s discharge under 11 U.S.C. § 727(a)(7), wherein the creditor alleged that the Debtor violated 11 U.S.C. §§ 727(a)(2), (3) and (4) in the bankruptcy case of the company of which the Debtor was sole member and president by permitting checks made out to the company to be deposited into the Debtor’s father’s account, by failing to secure the company’s books and records and by making false oaths for failing to list the same checks and other payments to the Debtor’s father on the company’s bankruptcy documents, held:
December 31, 2014
11 B 41555, 13 A 01243
Upon certain defendants’ motions to dismiss the Trustee’s fraudulent conveyance adversary complaint on statute of limitations grounds, the Trustee argues that it may rely on such longer statute of limitations as may be applicable to the IRS as an actual prepetition creditor of the bankruptcy estate.
11 B 00701, 11 A 00966
Upon the Creditor’s commenced adversary complaint against Debtor seeking a determination that a debt allegedly owed by the Debtor to the Creditor is nondischargeable under 11 U.S.C. § 523(a)(2)(A) and (a)(6), wherein the Creditor alleged that the debtor obtained title insurance policies through false pretenses, false representation and/or actual fraud, and that the underlying loan from the bank, which debt was assigned to the Creditor, was also obtained through false pretenses, false representation and/or actual fraud, held: The Debtor is obligated on both debts to the Creditor, and the Creditor proved by a preponderance of the evidence that the debts were incurred by false pretenses, false representations and actual fraud. As a result, the debts are nondischargeable.
September 17, 2014
13 B 27271
Upon the court’s issuance, sua sponte, of an order to show cause as to why the bankruptcy case of debtor Violeta Jakovljevic-Ostojic should not be dismissed for cause pursuant to 11 U.S.C. § 707(a), held: the Debtor’s actions demonstrate a lack of good faith in filing this case and have resulted in an unreasonable delay that is prejudicial to creditors. The court therefore dismisses this case pursuant to 11 U.S.C. § 707(a).
September 11, 2014
11 B 38875, 12 A 00155
Upon the Debtor’s motion to vacate the court’s summary judgment order, held: The Debtor failed to establish sufficient grounds under Federal Rule of Civil Procedure 59 or 60 to set aside or modify this court’s previous grant of summary judgment based, in part, on a state court judgment. Further, the Debtor failed to show that a transfer of personal property made in alleged satisfaction of the state court judgment, but made prior to the Debtor entering into the judgment, satisfied the judgment for purposes of Federal Rule of Civil Procedure 60(b)(5). The court therefore denies the Debtor’s motion to vacate.
August 18, 2014
13 B 39194
Upon the Motion of Leticia Zaragoza for Relief from the Automatic Stay Pending Arbitration, brought by Leticia Zaragoza (the “Movant”), held: The Movant has failed to demonstrate cause for relief from stay under 11 U.S.C. § 362(d). The Movant’s assertion that the Chicago Board of Trade (the “CBOT”) is better suited to determine the Movant’s claim against the bankruptcy estate is not supported by the arguments of the parties. Further, the Movant’s assertion that a claim against the Debtor arising out of a pending arbitration matter before the CBOT is outside this court’s constitutional authority under the reasoning of Stern v. Marshall is inapposite to the actual holding of Stern and is not well taken. Nothing within Stern’s holding stands for the proposition that this court may not determine the propriety of a claim asserted against the bankruptcy estate. Such a function lies at the heart of bankruptcy jurisdiction, and is squarely within this court’s authority. The court therefore denies the Movant’s request, without prejudice to the Movant’s ability to reassert the request, if appropriate, should the circumstances underlying the request have changed materially.
May 21, 2014
12 B 49658
Upon the Motion for Allowance of Secured Claim and Turnover of Collateral Proceeds, brought by United Central Bank (“UCB”), and the Cross Motion for Partial Turnover of Proceeds of Sales, brought by the Illinois Department of Revenue (“IDOR”), to determine the higher priority claim in the proceeds from a section 363 sale, held: UCB is entitled to a claim secured in the entire amount of the proceeds of the sale. IDOR has secured, priority unsecured and general unsecured claims, all of which are lower in priority to UCB’s secured claim. IDOR’s right to assert transferee liability is an “interest” for purposes of a section 363(f) sale, potentially entitling IDOR to adequate protection under section 363(e). As IDOR’s interest is, however, subordinate to that of UCB’s secured claim and IDOR’s claim is therefore “out of the money,” there is no harm from which IDOR is entitled to protection. The court therefore grants UCB’s request for allowance of secured claims and turnover of collateral proceeds and denies the IDOR’s request for partial turnover.