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Chief Judge A. Benjamin Goldgar

Shawn S. Prate
November 5, 2021

19 B 9980

Judge Deborah L. Thorne

Judge Carol A. Doyle

Judge David D. Cleary

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.

Judge Timothy A. Barnes

19bk06255, 19ap00684
Upon the motion to dismiss the plaintiffs’ complaint, brought by the defendant for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), held:  the motion to dismiss is largely predicated on the belief that the Supreme Court’s ruling in City of Chicago v. Fulton, — U.S. —, 141 S. Ct. 585 (2020), forecloses the plaintiffs’ claims for violation of the automatic stay under sections 362(a)(4), (6) and (7) of the Bankruptcy Code.  Fultonwas, however, expressly limited to section 362(a)(3) of the Bankruptcy Code.  As a result, Fulton does not directly foreclose claims under sections 362(a)(4), (6) and (7) and the court declines to extend Fulton as requested by the defendant.

As to the sufficiency of the counts pled, the plaintiffs have sufficiently alleged violation of sections 362(a)(4), (6) and 542(a), but have failed to do so with respect to section 362(a)(7).  As a result, the plaintiffs’ claim under section 362(a)(7) will be dismissed as insufficiently pled but without prejudice and with leave to amend, while claims under sections 362(a)(4), (6) and 542(a) survive the motion.

The motion to dismiss also raises the propriety of imposing punitive damages against a municipality.  In this regard, the motion is well taken and the plaintiffs’ request for punitive damages is dismissed.  Section 106(a)(3) of the Bankruptcy Code governs, and the abrogation of sovereign immunity contained therein expressly omits immunity from punitive damages.  The motion to dismiss will be granted in this respect.

Finally, the defendant seeks to dismiss the plaintiffs’ request for class certification.  Class certification is a matter of consideration in a separate motion and not properly the subject of a motion to dismiss.  The defendant’s motion to dismiss is thus denied in this respect.  The court will set a separate deadline for a motion to certify the class and any opposition thereto.

The defendant’s motion to dismiss is, therefore, GRANTED IN PART AND DENIED IN PART.

Judge Donald R. Cassling

In re Jelena Dordevic
November 16, 2021

20 B 09807

Judge Jacqueline P. Cox

In re Robert M. Kowalski
November 12, 2021

18 BK 09130
A receiver appointed by a domestic relations judge seeks over $150,000 in administrative expenses for discovering assets that did not bring value to the bankruptcy estate.  The request was denied.