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Judge Jacqueline P. Cox

12 B 08807

In this Chapter 13 proceeding, the Court sustained Creditors’ objection to confirmation of Debtors’ Plan, holding that the Debtors’ obligations under a Settlement Agreement with a former employer (including a non-compete clause) were non-monetary in nature, and therefore were not a "claim" for bankruptcy purposes. Only claims for money can be discharged. The Settlement Agreement included language that the non-monetary provisions of Articles 3 and 4 were the essence of the agreement and that should the Debtors fail to perform the duties prescribed in those provisions, injunctive relief would be appropriate to require the Debtors to perform the duties. The Court also noted that the provision governing attorney’s fees was not a compensation remedy, but was designed to make the prevailing party whole after the resolution of disputes.

11 B 42873, 11 A 02278

4100 West Grand LLC, debtor in possession, filed this adversary proceeding against defendant, TY Grand LLC, to avoid and recover a transfer alleged to be fraudulent pursuant to 11 U.S.C. §§ 544, 548 and 740 ILL. COMP. STAT. §§ 160/5 and 160/6. As a threshold matter, the Court relied on the Stern v. Marshalldecision and its progeny in determining that the Court had authority to enter a final judgment in the adversary, as the proofs of claim filed by the defendant made clear that their resolution depended on the outcome of the debtor’s fraudulent conveyance claims. Proof of claim no. 3-5 provided that if TY Grand did not prevail in the litigation, its secured claim would be $2,722,170.34. If TY Grand prevailed, it would have no claim against the Debtor. Because the fraudulent conveyance cause of action was resolved in the process of ruling on the proofs of claim, the bankruptcy court has authority to enter a final order herein. Stern v. Marshall, —U.S.—, 131 S.Ct. 2594, 2620 (2011). In the alternative, should a reviewing court find that this court lacked authority to enter a final order, the Court held that its memorandum opinion may serve as its proposed findings of fact and conclusions of law under section 157(c)1. This adversary proceeding was initiated after TY Grand LLC recorded a deed in lieu of foreclosure for Property valued at $1.115 million after 4100 West Grand LLC defaulted under the terms of the parties’ Forbearance Agreement. During the forbearance period, TY Grand also received cash payments in the amount $485,000. Pursuant to the terms of the agreement, after the recording of the deed, TY Grand LLC waived its right to sue for non-monetary defaults under the agreement, as well as the deficiency amount of $2,510,123.90. The Court entered judgment in favor of TY Grand, holding that 4100 West Grand LLC received reasonably equivalent value in exchange for the transfer. The Court determined that TY Grand LLC received value in the amount of $2,310,000, which amount represents the value of the Property transferred ($1.115 million); $485,000 in cash payments; and a claim under the Forbearance Agreement worth approximately $710,000; whereas the Debtor received a release of a $2.5 million debt

Judge A. Benjamin Goldgar

10 B 36039, 10 A 02174

Judge Timothy A. Barnes

08 B 10095, 10 A 00824
Upon the Defendant’s motion to dismiss the Chapter 11 Liquidation Trustee’s adversary proceeding to avoid alleged fraudulent or preferential transfers, citing Stern-challenges to constitutional grounds and failure to state cause of action on which relief could be granted, held: (i) bankruptcy court, even as non-Article-III court, had constitutional authority to enter final decision on preference avoidance claims; (ii) court also had authority to finally decide fraudulent transfer claims, regardless of whether claims were asserted under bankruptcy fraudulent transfer statute or pursuant to state law in exercise of powers accorded under strong-arm statute; and (iii) allegations in the Liquidation Trustee’s complaint stated plausible claim for relief.  Motion to dismiss denied.

In re Victoria C. Quade
October 10, 2012

12 B 26779
Upon the Judgment Creditor’s motion for relief from automatic stay and the Debtor’s motion to avoid the Judgment Creditor’s  liens as impairing exemption, held: (i) the Debtor’s ownership rights in funds that were in possession of third party were estate property, despite the Judgment Creditor’s prepetition service of state-court turnover order on third party; (ii) any postpetition setoff against judgment without leave of court by the Judgment Creditor of the Debtor’s royalties was void; (iii) conditional grant of motion for stay relief was warranted; (iv) neither res judicata nor Rooker-Feldman doctrine applied to bar the Debtor from claiming exemptions and seeking to avoid judicial liens impairing those exemptions; and (v) any royalties collected by the Judgment Creditor postpetition were estate property in which the Debtor could claim exemption. Motion for relief from stay granted in part and denied in part.  Motion to avoid liens granted.

09 B 39937, 11 A 02239
Upon the Defendant’s motion to dismiss the Chapter 11 Plan Administrator’s adversary proceeding, seeking to avoid and recover as fraudulent transfers lease payments transferred from Debtor to Defendant that purportedly were part of fraudulent scheme, held: (i) the claims in the Amended Complaint clearly provided the elements of a Ponzi-type scheme and thus provided a theory out of which a constructive trust may arise under Illinois law; and (ii) while the in pari delicto doctrine may be available in the context of a claim for constructive trust, there are no allegations in the count in question that the Plan Administrator also participated in the alleged fraud, only that such a fraud existed.  Motion to dismiss denied.

Judge Janet S. Baer

11 B 45378

In re Nekessa Danyelle Johnson The debtor filed a motion to vacate the Court’s order of March 27, 2012, which disallowed her exemption in an adoption tax credit provided by the Internal Revenue Code (the “I.R.C.”) on the basis of the general “public assistance benefit” exemption in 735 Ill. Comp. Stat. 5/12-1001(g)(1). The issue of whether the adoption tax credit is a public assistance benefit for purposes of the Illinois exemption statute is one of first impression in this jurisdiction. The Court noted that because the debtor filed her petition and taxes and claimed the credit in tax year 2011, section 36C of the I.R.C., which was in effect for that tax year, governed the matter. Explaining that the adoption tax credit was enacted as a financial incentive to defray the high costs associated with the adoption process, the Court noted that the Patient Protection and Affordable Care Act, which amended the I.R.C. for tax years 2010 and 2011, made the adoption tax credit refundable, allowing lower-income adoptive families to receive, for the first time, a cash refund from the government for their adoption expenses. Because the credit was refundable for the tax year at issue and because the Seventh Circuit has instructed that an exemption statute should be liberally construed in favor of the debtor, the Court granted the debtor’s motion to vacate the order that had disallowed her exemption in the adoption tax credit and overruled the trustee’s objection to the exemption.

In re Tranise D. Rose
October 2, 2012

12 B 27635

In re Tranise D. Rose The debtor filed a motion for sanctions against the collections law firm representing debtor's judgment creditor, alleging a violation of the automatic stay. Prior to the bankruptcy case, the law firm caused a citation to discover assets to be served on the debtor's bank, which placed an administrative hold on debtor's bank accounts. The issue before the Court was whether the law firm willfully violated the automatic stay when it refused to take steps to release the hold on the bank accounts upon learning of the bankruptcy petition. The Court held that continuation of the citation proceeding violated § 362(a)(1) of the Bankruptcy Code. The Court further found that the law firm's violation was willful. The law firm refused to to take steps to release the funds, asked for case law in support of debtor's position, and demanded an order from the bankruptcy court before it would comply with debtor's request to dismiss the citation proceeding. Although the law firm eventually proceeded to get the funds released, it failed to communicate that decision to debtor's counsel even though it knew of counsel's intent to seek sanctions if steps were not immediately taken to release the hold on debtor's accounts. The law firm further exacerbated the situation by failing to appear the initial hearing on the motion for sanctions. The Court granted the motion and awarded attorneys' fees as a sanction against the law firm and in favor of Debtor's counsel pursuant to § 362(k)(1).

Judge Pamela S. Hollis

Private equity fund Sun Capital purchased a 100+ year old family-owned retailer, financed the purchase through an LBO, ended up as the secured lender, and put the company in Chapter 11 less than 18 months later. After Sun obtained a covenant not to be sued, Debtor filed suit against its former shareholders, three siblings. Debtor sought avoidance of the sale and recovery of sale proceeds, alleging that the LBO was a fraudulent conveyance that rendered the Debtor insolvent or undercapitalized. After several days of trial and review of two expert valuation reports as well as thousands of pages of deposition testimony and other exhibits, the court entered judgment for the Defendants. The court declined to collapse the LBO, which would have been enough to end the lawsuit. The court then analyzed the expert reports, determining that it was not the sale that left the company insolvent or undercapitalized.