Judge David D. Cleary - Opinions

Judge David D. Cleary

In re: Dimitrios Tsanos
April 29, 2022

22 B 00998
Chapter 13 Trustee sought dismissal of Debtor’s case as well as a bar to refiling.  HELD: While automatic dismissal was not appropriate, cause existed to dismiss the case under 11 U.S.C. § 1307(c).  There was no evidence that Debtor, who owed significant arrearages to two mortgagees and had not made any postpetition mortgage payments, could propose a feasible plan.  Additionally, Debtor did not timely file his schedules, did not attend two scheduled meetings of creditors and did not make his first plan payment until well past the deadline in § 1326.  The court declined to impose a 180-day bar to refiling under § 109(g)(1).  Trustee did not prove that Debtor deliberately and intentionally failed to abide by court orders or to appear before the court in proper prosecution of the case.  The court also denied the Trustee’s request to impose a bar under § 349, finding that the evidence did not establish that Debtor filed this case in bad faith.

In re: Tracy Drake
February 23, 2022

21 B 4903
Tax purchaser Integrity objected to confirmation of chapter 13 plan on the grounds that the interest rate Debtor proposed did not provide Integrity with the present value of the allowed amount of its claim as required by 11 U.S.C. § 1325(a)(5)(B)(ii).  HELD: Objection sustained.  A portion of Integrity’s claim is a tax claim under 11 U.S.C. § 511.  Therefore, the appropriate interest rate is determined by reference to applicable nonbankruptcy law.  Since a tax purchaser holds a secured claim for delinquent taxes, the applicable nonbankruptcy law is the section of the Illinois Property Tax Code that calculates interest on unpaid taxes at 1.5% per month, or 18% annually.  The appropriate rate of interest on the remainder of Integrity’s claim is determined under the standard set forth in Till.

In re: Robert Smith, Jr.
February 17, 2022

21 B 12101
Debtor filed a chapter 13 plan that proposed to separately classify a nondischargeable claim and pay it in full while other unsecured creditors receive a 10% distribution.  The Chapter 13 Trustee objected to confirmation on the grounds that the plan unfairly discriminated under 11 U.S.C. § 1322(b).  HELD: The Bankruptcy Code allows separate classification of unsecured claims and does not prohibit discrimination in a plan.  Any discrimination, however, must be fair.  Although the Code does not define what is fair, the Seventh Circuit allows bankruptcy judges to seek a result that is reasonable in light of the purpose of the applicable chapter of the Code.  The separately classified claim in this case is not of the type that would enable a plan to be viable.  It is a nondischargeable debt that resulted from overpayment of disaster assistance funds.  Therefore, it is not reasonable to separately classify this claim, and by doing so the plan unfairly discriminates.

In re Cecilia Gonzalez
December 17, 2021

21 B 1498
Mortgagee Byline Bank sought to vacate confirmation of Debtor’s chapter 13 plan under Fed. R. Civ. P. 60(b).  HELD: Motion denied.  First, Byline’s mistake in confusing this debtor with another did not support relief under Rule 60(b)(1) for “mistake, inadvertence, surprise, or excusable neglect.”  Second, Byline presented no evidence to support its claim that fraud justified relief from the confirmation order under Rule 60(b)(3).  Third, Byline’s allegations did not rise to the level of extraordinary circumstances that must be found for a court to provide relief from an order for “any other reason that justifies” it under Rule 60(b)(6).  Byline did not contend that the confirmation order was void and should be vacated under Rule 60(b)(4).  Nevertheless, the court considered this argument and determined that Debtor provided Byline with notice that satisfied the requirements of due process.

21 B 12228
Attorneys filed application to be employed as a subchapter V chapter 11 debtor’s substitute counsel.  Their application included a request for approval of a postpetition retainer.  The U.S. Trustee objected, arguing that the Bankruptcy Code does not expressly provide for postpetition retainers.  HELD: Under the plain language of 11 U.S.C. §§ 328 and 363(b), which apply in all of chapter 11, including subchapter V, the court may authorize the debtor to use property of the estate outside the ordinary course of business to pay a postpetition retainer to its professionals.  In this case, the facts supported the use of § 363 to authorize a postpetition retainer, and the court approved the application.

In re Kahniyah Corder
September 15, 2021

21 B 10189
Creditor Future Finance, which held a nonpossessory secured claim against the Debtor’s car, repossessed that car prepetition.  After Debtor filed for relief under chapter 13, she demanded that Future Finance return the car.  When it did not, Debtor filed a motion for turnover.  Future Finance then filed a motion for relief from stay.  HELD: 11 U.S.C. § 542 requires Future Finance to turn over the car.  Based on the Debtor’s allegations, the car provides a means for her to earn a living, transport her children and fund a plan.  Therefore, it is not of inconsequential value and benefit to the estate, and turnover is mandatory.  Debtor’s request for sanctions is denied under the particular circumstances of this case, including expedited actions by the parties and substantive challenges to turnover.  Since Debtor seeks to use the car, she must provide adequate protection to Future Finance.  Debtor’s proposed payments of $200 per month and proof of a full coverage insurance policy provide Future Finance with adequate protection of its interest.  Future Finance’s request to lift the automatic stay is denied.  Cause does not exist to modify the stay.  Alternatively, while Debtor did not dispute that she lacks equity in the car, she showed that it is necessary for an effective reorganization.

In re: Kalid Jama
July 22, 2021

19 B 35595
Debtor asked the court to reopen his bankruptcy case for the purpose of pursuing an action under 11 U.S.C. § 362(k).  Held: Motion denied for three reasons.  First, Debtor is a debtor in another bankruptcy case and cannot have two open cases.  Second, Debtor was never eligible to be a debtor in his closed bankruptcy case because he did not complete the credit counseling requirement.  Finally, the court already denied relief under § 362(k), finding that the while the creditor had violated the stay, it did not do so willfully.  Therefore, there would be no purpose to reopening the case.

18 B 35437, 19 A 1009
Creditor sought denial of Debtor/Defendant’s discharge under 11 U.S.C. §§ 727(a)(2), (a)(3) and (a)(4).  Following trial, court found Debtor intended to defraud his creditors when he gave proceeds from a workers’ compensation claim to his brother, who then returned the money in cash payments.  Judgment entered for the creditor under § 727(a)(2).  However, Debtor’s lack of extensive financial records was justified under all the circumstances of the case, and he did not make false oaths with intent to defraud.  Judgment entered for the Debtor under §§ 727(a)(3) and (a)(4).

14 B 34232, 16 A 691
Defendants asked the court to compel Plaintiff to produce documents identified as privileged, asserting that Plaintiff placed the documents “at issue” and waived privilege.  Held: under federal law, at-issue waiver occurs when a party affirmatively puts at issue the specific communication to which the privilege attaches.  Since Plaintiff did not assert a claim or defense that put any specific communications at issue, he did not waive the privilege.

14 B 34232
Applicant requested allowance and payment of administrative expense claim as a “substantial contribution” to the case pursuant to 11 U.S.C. § 503(b)(3)(D).  Held: Section 503(b)(3)(D) does not support the allowance of an administrative expense claim in a case under chapter 7.

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