In re Arns

372 B.R. 876, 2007 Bankr. LEXIS 2629, 48 Bankr. Ct. Dec. (CRR) 172, 2007 WL 2255120
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedAugust 7, 2007
DocketNo. 05 B 26651
StatusPublished
Cited by4 cases

This text of 372 B.R. 876 (In re Arns) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Arns, 372 B.R. 876, 2007 Bankr. LEXIS 2629, 48 Bankr. Ct. Dec. (CRR) 172, 2007 WL 2255120 (Ill. 2007).

Opinion

MEMORANDUM OPINION

JOHN H. SQUIRES, Bankruptcy Judge.

These matters come before the Court on the motion of Richard G. Arns (the “Debt- or”) for sanctions pursuant to 11 U.S.C. §§ 105 and 524 against LaSalle Bank, NA f/k/a LaSalle Bank, F.S.B., a division of ABN AMRO Mortgage Group, Inc. (“La-Salle Bank”), and on the motion of LaSalle Bank to clarify or modify the order confirming the Debtor’s plan of reorganization. For the reasons set forth herein, the Court denies the Debtor’s motion for sanctions and grants LaSalle Bank’s motion to clarify the order of confirmation to allow it to proceed with its judgment of foreclosure and sale in state court.

I. JURISDICTION AND PROCEDURE

The Court has jurisdiction to decide this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. It is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (L), and (0).

II. FACTS AND BACKGROUND

Most of the facts are undisputed. On July 5, 2005, the Debtor filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. On September 30, 2005, the Court entered an order converting the Chapter 7 case to a Chapter 11 case.

The Debtor is the owner of real property located in Burr Ridge, Illinois (the “Burr Ridge Property”). LaSalle Bank, a division of ABN AMRO Mortgage Group, Inc., held the first mortgage, dated November 12, 1998, on the Burr Ridge Property. (Debtor Ex. No. 1.) Additionally, the underlying debt was also secured by a security interest in the Debtor’s personal property and an interest in all rents from the property. (Id.) The mortgage and credit agreement contained a variable in[879]*879terest rate to be paid over thirty years. (Id.) Prior to the filing of the bankruptcy case, on July 26, 2004, LaSalle Bank foreclosed the mortgage, resulting in the entry of a judgment of foreclosure in DuPage County, Illinois. (LaSalle Bank Ex. No. 3.)

On January 19, 2006, this Court entered an agreed order continuing the automatic stay as to LaSalle Bank. (Docket No. 58.) On January 30, 2006, the Debtor filed a plan of reorganization (the “Plan”). (Docket No. 59.) Paragraph 5.1 of the Plan provided for the following treatment of the secured claim of LaSalle Bank:

The [LaSalle Bank] Credit Agreement shall be recast and restructured (the “Restructured Promissory Note”). The Restructured Promissory Note shall be in an amount equal to the outstanding obligation under the Credit Agreement and shall include the principal balance, accrued interest and costs and expenses including legal fees and costs. The Restructured Promissory Note shall be amortized with monthly payments of interest and principal over a twenty-five (25) year term with interest calculated at the rate of seven percent (7%) per annum and an additional monthly real estate tax escrow payment in an amount equal to one twelfth (1/12) of the real estate tax bill for the last ascertainable tax year. The Restructured Promissory Note shall mature and be due in full three (3) years after the Effective Date. The Restructured Promissory Note may be prepaid without penalty. The Restructured Promissory Note shall be col-lateralized by a first priority mortgage lien in and against the Burr Ridge Property. The Credit Agreement and Mortgage previously granted to [LaSalle Bank] shall have the same validity, perfection, and enforceability as they had pre-petition without any further action by the Debtor or [LaSalle Bank] and without executing or recording any financing statements, security agreements, or other documents including the Restructured Promissory Note. The Debtor shall execute such reasonable documentation as deemed necessary by [LaSalle Bank] to document the restructuring in accordance with the terms set forth herein. Once [LaSalle Bank’s] Class 1 secured claim has been paid, in full, [LaSalle Bank] shall cause the Mortgage lien to be released and the Credit Agreement and any other loan documentation, to be cancelled and surrendered as satisfied. The Plan does not provide for any further distributions to Class 1 claimants. Class 1 claims are impaired under the Plan.

(Id.) (footnote omitted).

LaSalle Bank filed an objection to the Debtor’s disclosure statement on March 9, 2006. (Debtor Ex. No. 3.) Throughout March and April, 2006, LaSalle Bank and the Debtor began conversations about the Debtor’s proposed Plan and its treatment of LaSalle Bank’s rights under the mortgage. LaSalle Bank maintains that it discussed with the Debtor its interest in the Burr Ridge Property, its alleged protection by the anti-modification provision in 11 U.S.C. § 1123(b)(5), and that the Debt- or’s Plan impermissibly impaired its claim. Furthermore, LaSalle Bank contends that it entered into a side agreement with the Debtor that it would vote to accept the Plan as long as LaSalle Bank could go forward with the original judgment of foreclosure in the event the Debtor defaulted under the terms of the Plan. The Debtor claims that no such agreement was entered into and that there is no documenta[880]*880tion to confirm that LaSalle Bank could move forward with the foreclosure in the event of a default under the Plan.

On July 13, 2006, this Court entered a confirmation order (the “Confirmation Order”). (Debtor Ex. No. 5.) The Confirmation Order modified Paragraph 5.1 of the Plan to add the following provisions:

(a) The Restructured Promissory Note to [LaSalle Bank] shall be in the amount of $1,026,139.89.
(b) In the event of a two (2) month default of the monthly payments provided for in the Restructured Promissory Note, [LaSalle Bank] or its attorneys shall give written Notice of Default to the Debtor and the Debtor’s attorney that, unless within fourteen (14) days of the mailing of the Notice of Default, [LaSalle Bank] or its attorneys receive evidence of the cure of the default, the Plan injunction shall be immediately modified, without further notice, to permit [LaSalle Bank] to pursue its contractual rights and state remedies with regards to the Burr Ridge Property.
(c) The Debtor shall maintain hazard insurance on the Burr Ridge Property naming [LaSalle Bank] or its assigns as loss payee and shall, on or before January 15th of each year, transmit to [La-Salle Bank] verification that the annual premium on the hazard insurance policy has been paid.

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Cite This Page — Counsel Stack

Bluebook (online)
372 B.R. 876, 2007 Bankr. LEXIS 2629, 48 Bankr. Ct. Dec. (CRR) 172, 2007 WL 2255120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-arns-ilnb-2007.