In Re Famisaran

224 B.R. 886, 1998 Bankr. LEXIS 1217, 1998 WL 670406
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedSeptember 28, 1998
Docket19-05420
StatusPublished
Cited by20 cases

This text of 224 B.R. 886 (In Re Famisaran) 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 Famisaran, 224 B.R. 886, 1998 Bankr. LEXIS 1217, 1998 WL 670406 (Ill. 1998).

Opinion

MEMORANDUM OPINION

JOHN A. SQUIRES, Bankruptcy Judge.

These matters come before the Court on the objections of Seoul Travel Service, Inc. (“Seoul Travel”) to confirmation of the Debtors’ third amended plan of reorganization, on the motion of Seoul Travel for sanctions against the Debtors pursuant to Federal *889 Rule of Bankruptcy Procedure 9011, and on the application of Susan G. Castagnoli & Associates (“Castagnoli”), attorney for the Debtors, for fees incurred in the representation of the Debtors. For the reasons set forth herein, the Court sustains the objections of Seoul Travel to the Debtors’ third amended plan and dismisses the case pursuant to 11 U.S.C. § 1307(c)(5). Further, under Federal Rule of Bankruptcy Procedure 9011, the Court imposes sanctions against the Debtors for filing false, misleading and inaccurate Schedules I and J and the Statement of Financial Affairs and dismisses the case. The Court awards Seoul Travel its reasonable attorney’s fees in the sum of $8,977.50 and expenses incurred in the sum of $420.32. Finally, the Court awards Susan Castagnoli fees in the sum of $3,354.00.

I. JURISDICTION AND PROCEDURE

The Court has jurisdiction to entertain these matters pursuant to 28 U.S.C. § 1334 and General Rule 2.33(A) of the United States District Court for the Northern District of Illinois. They are core proceedings under 28 U.S.C. § 157(b)(2)(A), (L) and (O).

II. FACTS AND BACKGROUND

The genesis of the dispute between the Debtors and Seoul Travel dates back to 1992 regarding airline tickets obtained through use of an NFS check which prompted state court litigation among the parties. See Seoul Travel’s Exhibit Cl. Seoul Travel recovered a judgment against the Debtors for the amount of their NSF check plus interest, attorneys’ fees, costs and punitive damages. The Debtors subsequently filed a Chapter 7 bankruptcy case in 1994, which was assigned to Judge Eugene R. Wedoff.

In a related adversary proceeding, Judge Wedoff entered an order on March 16, 1995, finding the debt owed by the Debtors to Seoul Travel in the sum of $25,151.18, inclusive of all costs, collection expenses, interest and reasonable attorneys’ fees, nondischargeable under 11 U.S.C. §§ 523(a)(2)(A), (a)(4) and (a)(6). See Seoul Travel’s Exhibit C2. Seoul Travel then instituted post-judgment proceedings pursuant to Federal Rule of Bankruptcy Procedure 7069 by utilizing the citation proceedings available under Illinois law. See Seoul Travel’s Exhibit C3. On August 7, 1997, the Court entered an order pursuant to 735 ILCS 5/2-1402(b)(3) and (m)(2) and Illinois Supreme Court Rule 277 which placed a lien upon the employment contract and present and future earnings of the Debtors. Id. At this point, Seoul Travel’s unpaid judgment plus accrued interest totaled the sum of $29,299.63. Id.

On October 2, 1997, the Debtors filed the present ease with a Chapter 13 petition and plan. The Debtors also filed their Statement of Financial Affairs and Schedules A through J. See Seoul Travel’s Exhibit C4. On December 8, 1997, Seoul Travel filed an objection to that plan on the basis that the plan incorrectly treated Seoul Travel as being unsecured. Seoul Travel argued that it was a secured creditor of the Debtors by virtue of the statutory citation lien which was imposed under 735 ILCS 5/2-1402(b)(3) and (m)(2) on the Debtors’ employment contracts and earnings with the postal service.

Also on December 8, 1997, the Debtors filed a first amended Chapter 13 plan. On February 25, 1998, Seoul Travel filed a supplement to its initial objections to confirmation of the Debtors’ plan. Seoul Travel’s supplementary objections to the first amended plan stated: (1) the plan mischaraeterized Seoul Travel as an unsecured creditor; (2) the plan discriminated against Seoul Travel in favor of another secured creditor, G.E. Capital, and treated them disparately; (3) the plan failed to propose paying both secured creditors on equal terms; (4) the plan was not proposed in good faith in that it did not accurately reflect either Debtors’ projected income and their actual, legitimate and reasonable expenditures; and (5) that Debtor Teresita Famisaran has a compulsive gambling problem by which thousands of dollars every year are squandered away. Seoul Travel stated that many of the representations in the Debtors’ Schedules B and J were false. Specifically, Seoul Travel alleged the following misrepresentations: (1) Schedule B incorrectly referenced only one vehicle when in fact the Debtors own and insure two vehicles; (2) in Schedule J the Debtors alleged that they paid rent, but in fact paid none; (3) *890 the Debtors’ medical expenses listed in Schedule J were false and undocumented; (4) the Debtors’ renters’/homeowners’ insurance expense in Schedule J were false and undocumented; (5) the Debtors’ water/sewer expenses in Schedule J were false and undocumented; (6) the Debtors’ gas and electric expenses were false and undocumented; (7) the $100.00 monthly phone bill was unnecessary and extravagant; (8) the Debtors failed to disclose the ownership of two cellular phones and their delinquent debt for two cellular lines to MCI Cellular; (9) their clothing expense was extravagant and undocumented; and (10) their food expense was excessive given that the Debtors live with their daughter. Seoul Travel stated that the plan was not feasible and was discriminatory as well as replete with falsehoods, conceal-ments, exaggerations and excessiveness based upon the Debtors’ false Schedules.

On that same date, Seoul Travel filed the pending motion for sanctions against the Debtors for filing false and frivolous pleadings. Seoul Travel alleged that the Debtors’ Schedules B and J were materially false and misleading as specifically set forth and outlined above in its supplementary objections. The attorney for Seoul Travel, Henry W. Fruehauf (“Fruehauf’) 1 attached a certificate to the motion for his fees and expenses incurred. Pursuant to that certificate, Frue-hauf expended 70 hours of time at $175.00 per hour for a total of $12,250.00. In addition, he incurred expenses in the sum of $520.32. Fruehauf seeks a multiplier of the actual fees expended in the amount of double the fees for a sum total of $24,500.00.

On June 15, 1998, Seoul Travel filed a second amendatory supplement to its objections to confirmation of the Debtors’ plan. This pleading objected to the Debtors’ first amended plan that had been filed on December 8,1997.

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Bluebook (online)
224 B.R. 886, 1998 Bankr. LEXIS 1217, 1998 WL 670406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-famisaran-ilnb-1998.