22 B 15005
Trustee sought court authorization under 11 U.S.C. § 365(a) to reject a lease, in a transaction that called for the landlord to pay the estate $10,000 and for the lease to be “terminated.”  In the alternative, the Trustee requested approval of the transaction under 11 U.S.C. § 363(b) as a sale of estate property.  A creditor that purportedly held an interest in the lease objected.  HELD: Motion denied.  First, rejection under § 365(a) does not equal termination.  Some courts have held that deemed rejection under § 365(d)(4) constitutes termination, but that subsection is not applicable to the facts of this case.  Since the motion and proposed order requested a finding that the lease was terminated, the court could not grant the relief sought under § 365(a).  Second, although § 363(b) provides authority for the Trustee to sell estate property with court permission, he must provide adequate protection to entities with an interest in that property.  No adequate protection was proposed for the creditor with an interest in the lease, so the court could not authorize the Trustee to sell it.

22 A 00172, 22 B 08837
Debtor borrowed money from SAIL prepetition.  The agreement between Debtor and SAIL provided for arbitration of all disputes.  SAIL filed a proof of claim in Debtor’s chapter 13 case.  Debtor filed a three count adversary proceeding objecting to SAIL’s claim and bringing a counterclaim.  In response, SAIL filed a motion to compel arbitration of all three counts of the complaint.  HELD: When an arbitration demand is made in a bankruptcy case, a conflict exists as to whether the court should enforce the bilateral arbitration agreement, or its in rem jurisdiction over the claims under the Bankruptcy Code.  Neither the Seventh Circuit nor the Supreme Court have addressed the narrow issue regarding the potential conflict between the Federal Arbitration Act and the Bankruptcy Code.  Counts I and III object to SAIL’s claim on the grounds that it is unenforceable under state law, specifically the Predatory Loan Prevention Act and the Consumer Fraud and Deceptive Business Practices Act.. Resolution of Counts I and III involves the allowance or disallowance of a claim against the estate, and must necessarily be determined in adjudicating SAIL’s claim.  Debtor’s plan will not be confirmed, creditors will not receive distributions, and Debtor’s discharge will not issue until Counts I and III are resolved.  If arbitration of these claims for relief is permitted, there would be an inherent conflict with the Bankruptcy Code, so the motion to compel must be denied.  Count II is a counterclaim under the Illinois Interest Act.  This claim for relief arises solely under state law.  Its resolution does not impact adjudication of SAIL’s claim. Debtor’s plan can be modified at a later date to provide for distribution to creditors of any recovery under Count II.  Sending this claim for relief to arbitration does not inherently conflict with the purposes of the Bankruptcy Code, and the motion to compel arbitration is granted as to Count II.

22 B 13205, 23 A 00016
Chapter 11 debtor asked the court to enter a preliminary injunction halting a creditor’s state court proceedings against its principals.  The state court litigation was based on the principals’ guarantee of a deficiency claim against the debtor.  HELD: 11 U.S.C. § 105(a) supports the bankruptcy court’s power to enter an injunction in order to protect its jurisdiction.  Many bankruptcy courts have used this power to enjoin litigation against a non-debtor.  To obtain such an injunction, the debtor had to prove a likelihood of a successful reorganization and that the injunction would serve the public interest.  First, it is not a high burden to show a reasonable likelihood of success in reorganization, and the debtor met this burden.  Debtor had already proposed a plan that depended on the principals being able to focus on their management and operation of debtor’s tenant.  Rent from this tenant would fund the plan and enable the debtor to pay its creditors in full.  Without the injunction, the principals’ attention would be diverted; this would jeopardize the proposed reorganization.  Second, it is in the public interest to maintain the tenant’s business and to allow the reorganization to proceed; doing so would benefit all parties in interest.  Debtor also established that failure to enjoin the creditor would result in irreparable harm and that it had an inadequate remedy at law, the remaining elements necessary for a preliminary injunction.

21 B 00472, 22 A 00102
Defendant Ben Tesler sought dismissal of Plaintiff 4820 & 4901 Ltd.’s five count complaint seeking denial of Tesler’s discharge.  HELD: Plaintiff plausibly alleged a claim for relief under three subsections of 11 U.S.C. § 727(a).  First, the complaint adequately stated a cause of action for concealment under § 727(a)(2).  At this stage of the proceedings, an allegation that assets were deliberately withheld from Defendant’s schedules is sufficient to state a claim for concealment.  The intent requirement of this section is in the disjunctive, so the complaint need only allege an intent to hinder or delay or defraud.  Allegations regarding Defendant’s course of conduct plausibly pleaded the required intent.  Second, the complaint adequately stated a cause of action for failure to keep or preserve records under § 727(a)(3).  It contained allegations that Defendant did not produce all requested documents and, with his background and experience, should have known how to keep and preserve records.  Finally, the complaint adequately stated a cause of action for making a false oath in connection with the case under § 727(a)(4)(A), because Plaintiff alleged that Defendant omitted two assets from his schedules that he should have known to disclose.  As with the claim for relief under § 727(a)(2), allegations regarding Defendant’s course of conduct were sufficient to plead an intent to defraud.  The court granted the motion to dismiss the counts in which Plaintiff sought relief under § 727(a)(4)(D) and (a)(6).  Section 727(a)(4)(D) requires allegations that a defendant withheld information with an officer of the estate, and there were none in the complaint.  Finally, in its response Plaintiff asked to withdraw the § 727(a)(6) count.

22 B 12839
Shortly after Debtor filed his third chapter 13 case within a year, American Credit Acceptance (“ACA”) sought relief from the stay.  It argued that cause existed to modify the stay because its secured interest in Debtor’s car was not adequately protected.  HELD: Cause, which includes a lack of adequate protection, existed to grant relief from the stay.  Although Debtor obtained full coverage insurance after ACA filed its motion, and he proposed preconfirmation payments in an amount sufficient to satisfy either of two commonly used tests, the court must balance all relevant factors to determine whether a creditor is adequately protected.  Although Debtor proposed payments to ACA in his plan, these payments were not feasible.  The income available on Schedule J did not match the amount of his plan payments, even without taking into account a new obligation to pay rent.  Moreover, Debtor’s prepetition conduct – his two previous cases were dismissed prior to confirmation, his prepetition default equaled approximately 16 months of payments, and ACA had already repossessed the car twice – further supported a finding that ACA was not adequately protected.  Therefore, the court granted the motion for relief from the automatic stay.

19 B 21730
In accordance with section 3.1 of Debtor’s confirmed plan, the chapter 13 Trustee sought recovery of funds distributed to the City of Chicago after relief from stay as to the City’s collateral was granted to another creditor.  The City brought a motion to enforce the plan and for declaratory relief, seeking a finding that the Trustee wrongly interpreted the following language in section 3.1: “If relief from the automatic stay is ordered as to any item of collateral listed in this paragraph, then, unless otherwise ordered by the court, all payments under this paragraph as to that collateral will cease, and all secured claims based on that collateral will no longer be treated by the plan.”  HELD: The court has both inherent authority and a statutory basis to interpret and enforce a confirmed plan.  This language in section 3.1 is unambiguous.  The plain meaning of the language is that when relief from stay is granted, all secured claims based on that collateral – even those not listed in section 3.1 – are no longer treated by the plan.  This provision does not render the national form plan unconfirmable, and the history of the form plan’s drafting does not dictate a different result.  If parties prefer a different result, they may include a nonstandard provision in section 8.1, or request that the court “order otherwise” at the time stay relief is granted.  In this case, the Trustee was correct to stop making payments and to demand that the City return funds paid after the court granted relief from the stay.

21 B 11947, 22 A 8
Plaintiffs invested in a company for which Defendant was a managing member.  They have not received any return on their investment and brought a four count complaint seeking to except their claim from Defendant’s discharge.  HELD: Plaintiffs did not plead sufficient allegations to establish a plausible claim for relief under § 523(a)(2), although they will be allowed to amend the complaint to do so.  Among other issues, a document on which Plaintiffs allegedly relied was not provided to them by Defendant, and the complaint did not allege that the employee who did provide it was Defendant’s agent.  The complaint does state a claim under § 523(a)(4), but only with respect to actions taken after Plaintiffs had already invested in the company, and not for securities fraud.  Finally, the complaint does not state a claim for relief under § 523(a)(6).  Plaintiffs did not respond to Defendant’s argument that the § 523(a)(6) claim should be dismissed.

16 B 01529
After investigating Debtor’s assets and the estate’s potential claims, Trustee filed a qui tam lawsuit.  Several years of litigation ensued, including an appeal to the Illinois Supreme Court.  The qui tam defendant – now a creditor as well, having bought a claim against the estate – offered to purchase the lawsuit from the Trustee for an amount equal to all allowed claims against the estate.  Trustee declined the offer.  The defendant brought a motion to compel Trustee to comply with his duties under 11 U.S.C. § 704.  HELD: Movant did not comply with Fed. R. Bankr. P. 9013, which requires every motion to “state with particularity the grounds therefor[.]”  At oral argument, movant clarified that it sought a determination that this is a surplus estate case.  The court found that this determination would be an advisory opinion.  Under the case-or-controversy requirement of the Constitution, the court does not have subject matter jurisdiction to render an advisory opinion.  Therefore, the request to determine whether there is a surplus estate was denied.  To the extent the motion to compel sought to require the Trustee to provide information regarding his pre-lawsuit investigation of asset transfers by the Debtor, the motion was granted.  The movant’s request to find that the special counsel Trustee employed to prosecute the lawsuit had an undisclosed conflict was denied after movant admitted this motion was not the appropriate procedure for reconsideration of a retention order.

21 B 13170
Chapter 13 Trustee sought dismissal prior to confirmation, arguing that the proposed plan did not comply with 11 U.S.C. § 1325(a)(6).  HELD: Debtor did not establish by a preponderance of the evidence that she would be able to make all payments under the plan and to comply with the plan.  To be feasible, a plan must have a reasonable likelihood of success.  Although this requirement is not rigorous, a debtor must show that her income exceeds expenses by an amount sufficient to make the proposed payments.  While Debtor had sufficient disposable income on the petition date, her spouse’s monthly severance pay would end in September 2022, leaving her with negative disposable income.  Her assertions that she would have additional income from a new job and a friend’s voluntary contributions, and that her spouse would look for employment, were not supported by evidence.  Neither were her vague contentions that there was room in her budget to reduce expenses.  Therefore, she could not satisfy the feasibility requirement of § 1325(a)(6).

20 B 20833
Chapter 11 subchapter V debtor confirmed its consensual plan.  After the effective date of the plan, and after four payments were made to creditors, debtor requested authority to modify the confirmed plan.  The U.S. Trustee objected on the grounds that the plan was substantially consummated and could not be modified.  HELD: 11 U.S.C. § 1193(b) permits a debtor to modify a plan confirmed under § 1191(a) at any time after confirmation and before substantial consummation.  “Substantial consummation” is defined in 11 U.S.C. § 1101(2) and contains three elements.  The parties did not dispute that the first and second elements were satisfied.  Debtor took the position that payments under the plan were de minimis, which did not satisfy the third requirement of “commencement of distribution under the plan.”  The court determined that under the plain, unambiguous language of the statute, § 1101(2)(C) requires only that distribution under the plan has begun.  “It means, simply, that the process contemplated in the confirmed plan is underway.”  Since four payments had been made, the process of distribution was underway and the plan was substantially consummated.  Therefore, the debtor could not modify the plan.

21 B 10216
Trustee objected to confirmation of Debtor’s chapter 13 plan on the grounds that he did not propose the plan in good faith and that the plan does not provide that all of his projected disposable income will be committed to unsecured creditors.  HELD: Objection overruled.  Debtor established by a preponderance of the evidence that he proposed the plan in good faith.  The testimony supported a finding that he is separated from his non-filing spouse and that his amended schedules I and J represent his current financial situation.  Debtor also established that his plan provides for all of his projected disposable income to be applied to make payments to his unsecured creditors.  The proper test for whether his separated spouse’s income should be included asks if her income is paid on a regular basis for the household expenses of the debtor or his dependents.  Also, as a below-median debtor, his claimed expenses are necessary and reasonable; this was a question of fact resolved by the testimony, exhibits and judicial discretion.  Finally, Debtor established the amount of his income.

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.

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.

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.

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.

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.

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.