08 B 01187,08 A 00237

In this chapter 11 matter, the shares of the Debtor were held in a trust. Wayne and Terry Cohen were beneficiaries of the trust and two co-trustees were named as trustees of the trust. Wayne was the President of the Debtor and Terry was its CEO. Both were the sole directors of the Debtor. Beginning in 2000, Wayne suspected Terry of looting the Debtor’s assets and notified the co-trustees on several occasions. Pursuant to the trust agreement, the co-trustees had the ability to appoint or remove directors and officers. Despite numerous assurance that they would investigate, the co-trustees did not act. Wayne eventually filed a shareholder’s derivative suit in the Chancery Court of Cook County, Illinois against Terry and the co-trustees for breach of fiduciary duty and civil conspiracy. Eventually, the Debtor was placed into bankruptcy and a creditors’ committee was formed. The committee removed the derivative action to this Court and filed its own adversary proceeding against, inter alai, Terry, Wayne, and the co-trustees. The committee’s complaint also sought relief for breach of fiduciary duty, recovery of fraudulent transfers, and other relief. Wayne eventually amended his complaint to include a RICO cause of action against Terry. The co-trustees moved to dismiss Wayne’s complaint on standing, causation, damages, and mitigation grounds. The co-trustees similarly moved against the committee. Terry moved to dismiss Wayne’s complaint on standing grounds. Wayne moved for judgment on the pleadings regarding the committee’s complaint against him alleging fraudulent transfers. The Court granted the motions to dismiss in part and denied them in part. Wayne’s motion for judgment on the pleadings was denied.

08 B 27287

In this chapter 11 matter, the debtor-lessor sought to reject a non-residential lease to the extent that the lease remained unexpired. The issue focused on an option to purchase allegedly contained in the lease. The lessee alleged that an option to purchase the property existed in the lease and that it properly exercised the option. The debtor denied that the option ever existed and refused to sell the property to the lessee. The lessee then abandoned the property when the option term ended but before the end of the lease term. The issue on the option’s existence was being litigated in DuPage County Circuit Court before the filing of the bankruptcy petition and is now stayed. The Court denied the motion and held that option contract was not an executory contract since it did not meet that definition on the date of filing the bankruptcy petition. The option would have been breached at the expiration of the option term by the debtor if the option did exist. Conversely, the lease would have been terminated by the lessee when it abandoned the property before the lease term ended if no option existed. Further proceedings are needed to determine if the option existed.

08 B 01187

The movant, the Official Committee of Unsecured Creditors of Hearthside Baking Co., Inc. (the “Committee”), sought entry of an order directing the Debtor to surrender an insurance policy indemnifying the life of one of the Debtor’s principals. After hearing, the Court held that the policy belonged to a third-party and not the Debtor, precluding the Committee’s requested relief. Further, it was noted that under Federal Rule of Bankruptcy Procedure 7001(2), such relief could not be granted via a motion. The Committee’s motion was denied.

05 B 27545

In this chapter 7 case, the chapter 7 trustee sought to employ Neal Levin of Freeborn Peters LLP as special counsel to pursue causes of action against certain parties affiliated with the debtor (“Teknek Parties”). Levin previously represented the chapter 7 trustee in this capacity and also represented the estate’s main creditor, Systems Division, Inc. (“SDI”) at a point during the bankruptcy case. Levin previously withdrew representation of both parties when the trustee initiated an adversary proceeding against SDI. Now, the trustee seeks to re-employ Levin for the limited purpose of pursuing causes of action against the Teknek Parties. Both the Teknek Parties and SDI object. SDI objected on the grounds that it previously withdrew its as of right and that alleged misconduct by Levin precluded his employment with the estate. The Court held that the Teknek Parties lacked standing to object to Levin’s re-employment and overruled SDI’s objection as it related to its assertion that it withdrew its claim and Levin’s alleged misconduct. However, the Court found that 11 U.S.C. 327(a) precluded Levin’s re-employment to the chapter 7 trustee in this case. Therefore, the objection was ultimately sustained.

08 B 06743

A secured creditor objected to the plan of a chapter 13 debtor. The creditor’s claim was for a retail installment contract on a motor vehicle. The plan initially provided for adequate protection payments of approximately 1% of the collateral until payment to the creditor would begin April 2009 when the creditor would begin to receive payment on its claim at 6.25% annum. The creditor objected, arguing that the amount of adequate protection was incorrect, that the plan violated the equal monthly payment provision of § 1325 of the Bankruptcy Code, that it was entitled to attorney’s fees as provided by the original contract between the parties, and the interest rate under the plan was insufficient. The plan was later amended using a calculation for adequate protection that uses the difference between the value of the motor vehicle from the month the petition was filed and the value of the motor vehicle in the month immediately after filing. The Court sustained the creditor’s adequate protection argument but noted that the plan was amended to provide the correct amount. Next, the Court overruled the creditor’s § 1325 argument since it is adequately protected under the plan and that § 1325 does not specifically require the equal monthly payments to a creditor to begin with the first payment to the chapter 13 trustee made under the plan. The creditor’s attorney’s fees were sustained since they were provided for by the original contract. Lastly, the Court held that the creditor did not meet its burden of proving that it was entitled to a higher interest rate than the one provided by the plan.

06 B 11328

Claimant filed a claim against the Debtors’ estate for a breach of contract relating to a contract for home repair work. Each party claimed the other breached the contract. A two-day hearing was held. The Debtors testified that the claimant made work difficult for the Debtors while performing under the contract. She constantly complained about the work, insulted and made vulgar comments consistently to one of the co-debtors while he was trying to work. Events culminated when claimant told the Debtors that she refused to pay any more than the initial deposit for any work the Debtors had done or would do under the contract. The Debtors also brought in a subsequent contractor to testify whom the claimant had also hired to do work on her home. His testimony echoed the Debtors’ testimony. The Debtors met their burden of rebutting the claimant’s claim and the claim was denied.

08 B 01187, 08 A 00237, 08 A 00279

Debtor corporation manufactured and sold cookies as the Maurice Lenell Cooky Company. Two brothers, Terry and Wayne Cohen, served as CEO and President and were sole directors of the company. The company was held in a trust with Wayne and Terry as beneficiaries. Defendants Blum and Gordon were co-trustees of the trust. A dispute formed between the brothers and Wayne filed suit in Cook County Chancery Court in March 2005 against Terry, Blum, and Gordon for Terry’s alleged looting of company assets and Blum and Gordon’s failure to properly investigate Wayne’s allegations. In January 2008, four creditors filed an involuntary petition against the Debtor. Except for a valuation proceeding that eventually became moot or abandoned, little progress was made in the Chancery Case. A committee of unsecured creditors was formed and was given authorization to prosecute causes of action and to intervene in the Chancery Court on behalf of the Debtor. Under this authority, the committee removed the Chancery Court case to this Court. Defendants Blum, Gordon, and Terry opposed removal of the case and filed motions before this Court disputing proper subject matter jurisdiction and for this Court to abstain from hearing the matter and remanding it back to the Chancery Court. The Court found proper “related to” jurisdiction and also denied the defendants’ motion for mandatory abstention, permissive abstention, and equitable remand pursuant to 28 U.S.C. § 1452(b). Further, the committee also filed its own adversary proceeding before this Court and sought to consolidate the removed Chancery Case with their adversary proceeding. This unopposed motion was joined by Wayne and was granted.

07 B 03856

Chapter 11 debtor LLCs objected to the claim of one of its former managing member and agent. The claimant still maintains a membership interest in debtor LLC after being removed as managing member and agent in a state court proceeding prior to the bankruptcy case. Two other members were appointed by the state court as managers of the debtor LLCs. The debtor LLCs filed a counterclaim along with their objection for breach of contract, breach of fiduciary duty, and equitable subordination. In response, the claimant filed a third-party complaint for equitable subordination against the current managing members alleging commingling of assets, undercapitalization, and mismanagement. The debtor LLCs and managing partners each filed motions to dismiss arguing that the claimant lacked standing to bring the suit, violated the automatic stay by bringing the suit, violated the Barton doctrine that precludes bringing a suit against a trustee (or DIP) or its current management without leave of the Court, that the issue was barred by res judicata and collateral estoppel since undercapitalization issues were raised during a prior objection to a motion to sell property in a separate proceeding, and that the third-party action was improper and should have been filed as an adversary proceeding. The Court held that the claimant had standing to bring claim for equitable subordination and did not violate the automatic stay in doing so. Also, the Court held the Barton doctrine was not violated since the suit was for alleged acts occurring pre-petition. Further, Res judicata and collateral estoppel were inapplicable because the facts alleged at the sale motion objection differed from those alleged in the current third-party complaint. Finally, the Court dismissed the third-party complaint as improper under rule 7014 and directed the claimant to re-file his suit as an adversary proceeding as required by Fed.R.Bank.P. 7001(8), and Fed.R.Bankr.P. 3007(b), which was amended December 10, 2007 requiring that all actions for relief as provided by Rule 7001(8) must be brought via an adversary proceeding. The debtor LLCs were directed by separate order to re-file their counterclaim as an adversary proceeding as required by Rules 7001(8) and 3007(b).

07 B 03856

Pro se creditor purchased a home from a third party in the debtor’s real estate development project. The creditor filed a timely proof of claim alleging repair items and building code violations. She subsequently filed several other claims after the claims bar date passed arguing that each amended her previous timely filed claim. The Court found that her attempted amendments asserted new claims that did not relate back to her original claim and that the new claims could not satisfy the excusable neglect standard for allowing a claim filed after the claims bar date. The creditor’s timely filed claim was denied because the debtor successfully met its burden in objecting the claim.

07 B 03856

Corporate creditor, through its vice president who is not an attorney, filed a claim against the debtor after the claims bar date passed. The debtor objected, arguing the claim was untimely filed. After obtaining counsel, the creditor argued that its claim should be allowed under the excusable neglect standard announced by the U.S. Supreme Court in Pioneer Inv. Services Co. v. Brunswick Assoc. L.P., 507 U.S. 380 (1993). The creditor specifically argued that when it filed its claim without counsel, it did not understand the complexities involved in filing a timely claim and that allowing its claim would have a de minimus impact on any potential distribution to the other creditors. The Court found that filing the claim without the aid of counsel was not excusable under the Pioneer test and that as a sophisticated business entity, the creditor should have recognized when an attorney was needed. The Court also found that allowing the claim would prejudice both the debtor and the other creditors who timely filed their claims since it would affect any distribution made.

04 B 45177, 06 A 01812

Creditor trustee filed a complaint to recover five alleged transfers made to the defendant from the debtor two months prior to the bankruptcy case. Three of the transfers were disposed via summary judgment for the defendant. A hearing was held regarding the remaining two transfers. The Court found that the remaining two transfers were made while the defendant was insolvent. The defendant asserted that the transfers were made in the ordinary course of business. This was rejected because the defendant only offered the testimony of its president who could not testify to the industry standard, and therefore, was not an expert witness. The defendant then argued that the transfers were made as part of a lease that was assumed post-petition by the debtor. The Court agreed and entered judgment for the defendant on the two remaining transfers base on the Seventh Circuit’s ruling in In re Superior Toy & Mfg. Co., Inc., 78 F.3d 1169 (7th Cir. 1996).

07 B 03856

Chapter 11 Debtor brought a motion to sell certain real estate. One principal of the Debtor had expressed his disapproval of the sale of the real estate as proposed in the motion to sell. The Court required that all principals of the Debtor must approve the sale. Debtor then moved for reconsideration of this ruling or in the alternative for an appointment of a trustee with limited power or an examiner with expanded power. On reconsideration, the Court found that all principals did not need to consent to the sale of the real estate. The Court also denied the Debtor's request for the appointment of a Trustee with limited power or an examiner with expanded power.

07 B 19200

Prior to the debtor’s bankruptcy filing, the mortgagee obtained a judgment of foreclosure in state court against the debtor, the owner of an apartment building, and its sole member. The state court also appointed a receiver to maintain the property. The debtor thereafter filed a single-asset real estate bankruptcy case before the property could be sold at a sheriff’s sale. The mortgagee brought an emergency motion under 11 U.S.C. § 543(d) seeking to excuse the receiver from having to turnover the apartment building to the debtor in accordance with 11 U.S.C. § 543(b). The court found that the Debtor’s prior mismanagement of the property and questionable business practices negated the statutory obligation of a custodian to turnover assets to a debtor in bankruptcy. The court concluded that the interests of creditors would be better served if the receiver was excused from complying with 11 U.S.C. § 543(b).

04 B 48014, 05 A 01624

Plaintiff Trustee and the Defendant filed cross-motions for summary judgment on the Trustee's adversary complaint. The adversary complaint sought avoidance under 11 U.S.C. § 544(b) and § 5 of the Illinois Uniform Fraudulent Transfer Act of the Debtor's pre-peition transfer of real estate to his wife, the Defendant. Prior to the transfer, the Debtor and his wife held the real estate as tenants by the entirety. The Trustee's adversary complaint also sought authority under 11 U.S.C. § 363(h) to sell the real estate. The Defendant argued that avoidance of the transfer will restore the property to the tenancy by the entirety estate that existed prior to the transfer being made and operate to keep the real estate beyond the reach of the Trustee's avoidance power. The Trustee argued that the tenancy by the entirety estate will not be revived once the transfer is avoided because whatever “entirety” existed prior to the transfer was voluntarily extinguished by the Debtor once the transfer was made. Moreover, even if the tenancy by the entirety comes back into existence after avoidance, 11 U.S.C. § 522(g) prohibits an exemption from being claimed in the real estate. The court granted summary judgment in favor of the Trustee and against the Defendant on all counts of adversary complaint.

06 B 08771

Debtors filed a chapter 7 bankruptcy case and obtained a discharge. The chapter 7 trustee filed a No Asset Report and the case was closed. Approximately 7 months later, the debtors’ case was re-opened for the purpose of disclosing 2 pre-petition causes of actions that were omitted from their bankruptcy schedules. The chapter 7 trustee previously assigned to the case was re-appointed as trustee. After the case was re-opened, the defendants involved in the one matter pending in state court (the other matter is a workers compensation claim) obtained an order dismissing the law suit with prejudice because the debtors failed to properly list it in the bankruptcy case. The chapter 7 trustee moved for an order of contempt against the defendants for violating the automatic stay. The court held that (1) the unscheduled lawsuit was never abandoned by the trustee and is still property of the estate protected by the automatic stay; (2) the trustee, not the debtors, hold the exclusive right to pursue the cause of action in state court; (3) the defendants violated the automatic stay and the state court order of dismissal is void ab initio; and (4) neither an order of contempt nor an award of damages were warranted based on the circumstances of the case.

07 B 03856

Chapter 11 debtors filed application to employ law firm as special litigation counsel to represent them in pending state-court litigation involving derivative claims and counterclaims the debtors’ principals filed against each other on behalf of certain debtors. The court overruled the objection from one of the debtors’ principal members and prior manager and held that the law firm’s employment was in the best interest of the estate and that the interests of the debtors’ controlling principals, who are defendants in the state court litigation, are not adverse to the estates’ interests. The court also noted that special counsel risked total denial of any requested compensation award if it failed to timely disclose the development of an adverse interest while representing the debtors.

05 B 46676

The debtor objected to the claim of the Social Security Administration (SSA) that she owed it $38,878.40 for overpayment of disability benefits. The SSA's motion to dismiss the claim objection was granted because debtor did not exhaust her administrative remedies by first securing SSA's review of her position that she had not received more than she was entitled to. The Social Security Act allows review of SSA's final decisions via a civil action and deprives the courts of original jurisdiction of such matters. The court also found that even though the government violated the automatic stay by sending the debtor a demand letter after the bankruptcy petition was filed, it was questionable whether stay violation damages could be proven because the debtor pursued the government by filing its claim, objecting to it and seeking court review of the SSA's position.

05 B 13171, 05 A 1582

An attorney was ordered to produce documents sought by subpoena in relation to his representation of 2 debtors. The court declined to order disclosure based on the common interest exception to the attorney- client privilege because the clients did not jointly seek the attorney's professional services. However disclosure was ordered based on a finding that the crime-fraud exception to the attorney-client privilege was applicable.

05 B 27545, 06 A 00412

In re Teknek, LLC; Phillip Levey, Trustee v. Sheila Hamilton et al. Defendants, who are citizens of the United Kingdom, moved to dismiss Trustee’s adversary complaint for lack of personal jurisdiction or, in the alternative, on grounds of forum non conveniens. The court found under Bankruptcy Rule 7004, 28 U.S.C. § 1334(b) and the Fifth Amendment of the United States Constitution that it could exercise personal jurisdiction over the defendants. The court additionally held that even though insolvency proceedings were pending in the United Kingdom for a foreign company with essentially the same ownership structure as the chapter 7 debtor and that the United Kingdom would provide an adequate alternative forum, the balancing of private and public factors was such that dismissal based on forum non conveniens would not be appropriate.

06 B 02169

Prior to the petition date, the debtor’s non-filing spouse obtained title to property for which he executed a note secured by a mortgage which included an anti-modification provision. He later transferred title to his wife who did not assume the payment obligations of the note or the mortgage. A default on the mortgage note ensued and the wife filed this chapter 13 case seeking to pay the arrears in her reorganization plan. Mortgagee filed a motion to lift the automatic stay citing the debtor’s lack of privity of contract. The court held that because of United States Supreme Court precedent which defines "claim" to include obligations for which a debtor has no personal liability, only in rem liability, the debtor’s interest in the property could be included in a chapter 13 plan. The court also held that inclusion of the debt in the debtor’s plan did not impermissibly modify the lender’s rights under § 1322(b)(2) but instead provided extra protection as it gives the lender an additional person from whom to seek satisfaction of the underlying obligation. The court noted that Illinois law may dictate that a creditor-debtor relationship exists between the debtor and Mortgagee based upon the Illinois Family Expense Act and under an Illinois Supreme Court case that held that a lender's acceptance of an interim grantee's payments makes the grantee the primary obligor on a debt.