Aleshire v. Wells Fargo Bank, N.A.

589 B.R. 154
CourtDistrict Court, E.D. Illinois
DecidedJuly 9, 2018
DocketNo. 17 CV 617; Bankruptcy Case 15 BK 1652
StatusPublished
Cited by2 cases

This text of 589 B.R. 154 (Aleshire v. Wells Fargo Bank, N.A.) is published on Counsel Stack Legal Research, covering District Court, E.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aleshire v. Wells Fargo Bank, N.A., 589 B.R. 154 (illinoised 2018).

Opinion

MEMORANDUM OPINION

John J. Tharp, Jr., United States District Judge *155This is an appeal from a bankruptcy court order dismissing the debtor's Chapter 11 petition without a confirmed reorganization plan. The bankruptcy court concluded, and this Court agrees, that dismissal was appropriate because the debtor had been given ample time to present a confirmable plan but failed to do so.

I. BACKGROUND

The debtor in this case, Suzanne Aleshire, filed a bankruptcy petition under Chapter 11 on January 19, 2015. On Schedule A, a required listing of her assets, Ms. Aleshire indicated that she owned four properties, three located in Winnetka, Illinois (collectively, "the Winnetka properties"): (1) 1155 Chatfield Road; (2) 402 Willow Road;1 and (3) 739 Walden Road. The fourth property is located at 26861 Hickory Blvd., in Bonita Springs, Florida. These properties were, in the aggregate, underwater: Aleshire valued the properties at $2.4 million and stated that she owed about $2.786 million on them. Her filings indicated that the remainder of her assets totaled less than $5,000 and that her income was $11,703 per month, with about $10,000 of that coming from rental income from the properties and the remainder from Social Security. She claimed monthly expenses of only $1,665, a figure that did not include items such as the mortgage payments and taxes owed on any of her properties, which was information expressly required by Schedule J.

When she filed her petition, Aleshire had not made a mortgage payment on any of the Winnetka properties in more than seven years. She stopped making payments in 2008, she says, on the (dubious) advice of counsel assisting her in a dispute with Harris Bank-not Wells Fargo-relating to an erroneous credit report Harris had issued (and which apparently was adversely affecting her ability to secure loan modifications from Wells Fargo). The particulars of that dispute are not clear from the record but neither are they relevant; the gist of the story is that Aleshire maintains that she tried to resume making payments to Wells Fargo several months later but was rebuffed and told to complete the loan modification process, prompting her to abandon her efforts to pay any amounts owed on the mortgages. The bottom line of this saga is that Aleshire's accounts with respect to each of the mortgages on the Winnetka properties were substantially in arrears when she filed the bankruptcy petition at issue in this appeal.2

*156Over the course of the two years in which her chapter 11 petition was pending in the bankruptcy court, Aleshire proposed three reorganization plans, none of which were accepted by her creditors. Aleshire's first plan filed contemporaneously with her petition, proposed that the "Debtor will continue to operate her properties and use the income generated from the rentals to continue to meet the terms of the Lender's First Mortgages on Confirmation," but provided no detail as to how she would be able to do so financially given her reported net monthly income of approximately $10,000. Aleshire filed a second proposed plan on October 1, 2015 (Dkt. 85) and her third amended plan on April 12, 2016 (Dkt. 118). In her third amended plan, Aleshire proposed to pay, among other things, $2,201 a month to the IRS,3 $2,294 per month on the Willow Road property,4 $2,690 per month on the Walden Road property,5 and $2,683 a month for the Florida property.6 In addition, the plan contemplated that Wells Fargo would waive Aleshire's defaults as to the Chatfield property (Aleshire's residence) and that Aleshire would resume making payments as required under the terms of the mortgage loan on that property.7

*157Wells Fargo objected to the plan on a variety of specific grounds but all relating to the bank's view that the rental income generated by the properties, combined with Aleshire's other modest income, was not sufficient to cover the debt on the properties and failed to provide for reimbursement of pre- and post-petition property tax payments the bank had advanced. Aleshire responded to Wells Fargo's objections to the third amended plan by asserting that she had $16,986 in monthly income available to fund the plan (Dkt. 152 at 5); she did not identify the sources of that income or how she had increased her monthly income by more than $5,000 from the $11,703 she reported on Schedule A to the $16,986 figure represented in her response to Wells Fargo's objections. By Aleshire's reckoning, this plan gave her a surplus of some $400 per month. It did not, however, address the subject of property taxes that Wells Fargo had advanced.

In September 2016, Wells Fargo filed a motion to dismiss Aleshire's petition, arguing that her claim that she had almost $17,000 per month with which to fund the plan was "a red herring." According to Wells Fargo, the operating reports concerning the properties filed by Aleshire reflected that she was able to pay only an average of $2,190 per month, far less than needed even to cover the mortgage payments on the properties.8 The motion also argued that the operating reports showed that the Florida property lost more than $1,000 per month over the first 19 months of the case, which warranted dismissal on the ground that Aleshire's continuing operation of the properties was creating a "continuing loss to or diminution of the estate." 11 U.S.C. § 1112(b)(4)(A). Supplementing its first motion, Wells Fargo filed an additional motion to dismiss in November 2016, specifically alleging that Wells Fargo had paid more than $90,000 in post-petition property taxes on the Winnetka properties because Aleshire had failed to do so and that she lacked the resources to both fund the plan and repay Wells Fargo for the real estate tax payments it had made in Aleshire's stead.

Responding, Aleshire acknowledged that her plan required funding of $16,986 per month and "that she has not always hit this target during the course of the bankruptcy case." A56. She argued, however, that she would be able to make the target going forward. Social Security and monthly rent from the Willow Road and Walden Road properties, she maintained, would bring her $12,986 each month, and the remaining gap of $4,000 would be covered *158by rent on the Florida property, earnings from a retail job, and contributions from family members who pledged support of up to $2400 each month. Aleshire further explained that her husband had sufficient income to pay for her personal living expenses so her income was fully available to fund the plan. She did not, however, address the more than $300,000 in pre- and post-petition tax payments for which she was obligated to reimburse Wells Fargo.

The bankruptcy court held an evidentiary hearing on Wells Fargo's motions to dismiss on December 5, 2016.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
589 B.R. 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aleshire-v-wells-fargo-bank-na-illinoised-2018.