In re Gillis

293 B.R. 134, 2002 WL 32099796
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedOctober 31, 2002
DocketNo. 01-35395
StatusPublished

This text of 293 B.R. 134 (In re Gillis) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Gillis, 293 B.R. 134, 2002 WL 32099796 (Ohio 2002).

Opinion

DECISION AND ORDER

RICHARD L. SPEER, Bankruptcy Judge.

This cause comes before the Court after a Hearing on the Debtors’ Objection to the Proof of claim filed by Cashland, Inc. At the Hearing, the Court held that it would [135]*135take the matter under advisement, and permitted the Parties to file supplemental briefs in support of their respective positions. Within the time frame allowed, however, only Cashland submitted a supplemental brief. After reviewing this brief, together with all of the other materials submitted in this case, the Court, for the reasons that will now be explained, finds that the Debtors’ objection should be Overruled.

LEGAL DISCUSSION

At issue in this case is the validity of the proof of claim filed by Cashland, Inc. (hereinafter referred to as simply “Cash-land”). As the allowance or disallowance of claims against the estate are core proceedings pursuant to 28 U.S.C. § 157(b)(2)(B), this Court has been conferred with the jurisdictional authority to enter final orders in this matter.

In a Chapter 13 case, a creditor must file a proof of claim in order to participate in a distribution of estate assets. See, e.g., In re Stewart, 247 B.R. 515, 521 (Bankr.M.D.Fla.2000) (“distributions pursuant to a chapter 13 .plan are predicated upon the filing of a proof of claim.”). Pursuant to 11 U.S.C. § 502(a), a proof of claim will be deemed to be allowed, and thus entitled to a distribution, unless objected to by a party in interest. In addition, once objected to, a proof of claim will only be disallowed if one of the grounds set forth in § 502 of the Bankruptcy Code is established.

As it applies thereto, the Debtors contend that Cashland’s proof of claim should be disallowed in its entirety because, in violation of § 502(b)(1), the claim is unenforceable under applicable law. In particular, the Debtors contend that Cashland’s claim violates O.R.C. § 1315.41(D) because it seeks treble damages. In opposition thereto, it is the position of Cashland that its proof of claim does not improperly seek treble damages, but instead merely seeks permissible liquidated damages in the amount of One Hundred Eighty-three dollars ($183.00). As it relates to this argument, Cashland asserts that in lieu of receiving liquidated damages, it would still be entitled to assert a claim of Two Hundred Twenty-eight and 33/100 dollars ($228.33) on account of accrued prepetition interest. In addition, Cashland has challenged the Debtors’ objection on procedural grounds; namely, that the Debtors were dilatory in filing their objection.

Relevant to the respective positions of the Parties are these particular facts:

On April 14, 2001, the Debtor, Michelle Gillis, obtained a payday advance loan from Cashland in the amount of $500.00. For the loan, the Debtor presented to Cashland two checks in the amount of $287.50 each. As a loan origination fee, the Debtor was charged $75.00. The terms of the Parties’ contract provided that the Debtor would be charged an annual percentage rate of 121.67% pursuant O.R.C. § 1315.35 to 1315.44.
On April 29, 2001, the Debtor’s checks were presented for payment, but were returned because of insufficient funds. As a result, Cashland incurred a check charge of $44.50.
On May 11, 2001, the Debtor paid $50.00 to Cashland.
On August 29, 2001, the Debtors filed a petition in this Court for relief under Chapter 13 of the United States Bankruptcy Code.
On September 21, 2001, the Court sent notice to Cashland of the Debtors’ bankruptcy petition. In said notice, the Court set January 30, 2002, as the deadline for creditors to file a proof of claim.
On October 4, 2001, Cashland filed a proof of claim as an unsecured creditor [136]*136in the amount of $752.50. This amount was calculated as follows:
4/14/01 Checks $575.00
Returned Check fee $ 44.50
Payment Made -$ 50.00
Liquidated damages pursuant to O.R.C.
§ 2307.61(a)(1)(b), prorated to reflect partial payments $183.00
Total ' $752.50
On February 7, 2002, the Court confirmed the Debtors’ Chapter 13 Plan. In this plan, it was provided that the Debtors’ unsecured creditors were to be paid 100% of their allowed claims.
On June 8, 2002, the Debtors filed an objection to Cashland’s proof of claim.

In addition to the above information, the Parties do not dispute that Cashland is a check-cashing business and as such is regulated by Ohio law. See O.R.C. § 1315.35(A).

Section 2913.11 of the Ohio Revised Code, which is entitled “Passing Bad Checks,” makes it a crime for any person “with purpose to defraud, ... [to] issue or transfer or cause to be issued or transferred a check or other negotiable instrument, knowing that it will be dishonored.” In addition, to the criminal penalties imposed for a violation of this provision, O.R.C. § 2307.611 creates a civil cause of action for any party aggrieved by a person’s violation of § 2913.11. In pursuing a civil cause of action, § 2307.61(A)(1) permits- a party to pursue either compensatory damages or liquidated damages. For a party, such as Cashland, who seeks to recover liquidated damages, paragraph (A)(1)(b) of the statute provides two options: First, pursuant to subparagraph (i), the aggrieved party may recover “Two hundred dollars[.]” Second, as set forth in subparagraph (ii), the aggrieved party may recover “[t]hree times the value of the property at the time it was willfully damaged or was the subject of a theft offense .... ” In this case, of course, given that Cashland is attempting to recover, on a prorated basis, Two Hundred dollars ($200.00) in liquidated damages from the Debtor, it is apparent that Cashland is seeking to collect damages under subpara-graph (A)(l)(b)(i), and not subparagraph (A)(l)(b)(ii).

Recently, the Ohio State legislature established a regulatory scheme for businesses, such as Cashland, engaged in the practice of cashing checks. See O.R.C. § 1315.35 thru 1315.44. In doing so, the legislature, under paragraph (D) of § 1315.41, proscribed check-cashing busi[137]*137nesses from collecting “treble damages pursuant to division (A)(l)(b)(ii) of § 2307.61 of the Revised Code in connection with any civil action to collect a loan after a default due to a check ...

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Cite This Page — Counsel Stack

Bluebook (online)
293 B.R. 134, 2002 WL 32099796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gillis-ohnb-2002.