In re Jakovljevic-Ostojic

517 B.R. 119, 2014 Bankr. LEXIS 4066, 2014 WL 4628906
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedSeptember 17, 2014
DocketNo. 13BK27271
StatusPublished
Cited by15 cases

This text of 517 B.R. 119 (In re Jakovljevic-Ostojic) 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 Jakovljevic-Ostojic, 517 B.R. 119, 2014 Bankr. LEXIS 4066, 2014 WL 4628906 (Ill. 2014).

Opinion

MEMORANDUM DECISION

TIMOTHY A. BARNES, Bankruptcy Judge.

The matter before the court arises out of the court’s issuance of an order to show cause (the “Order To Show Cause ”) as to why the bankruptcy case of debtor Violeta Jakovljevic-Ostojic (the “Debtor”) should not be dismissed for cause pursuant to 11 U.S.C. § 707(a). For the reasons set forth herein, this case shall be dismissed pursuant to 11 U.S.C. § 707(a).

JURISDICTION

The federal district courts have “original and exclusive jurisdiction” of all cases un[121]*121der title 11 of the United States Code (the “Bankruptcy Code ”). 28 U.S.C. § 1884(a). The federal district courts also have “original but not exclusive jurisdiction” of all civil proceedings arising under title 11 of the Bankruptcy Code, or arising in or related to cases under title 11. 28 U.S.C. § 1334(b). District courts may, however, refer these cases to the bankruptcy judges for their districts. 28 U.S.C. § 157(a). In accordance with section 157(a), the District Court for the Northern District of Illinois has referred all of its bankruptcy cases to the Bankruptcy Court for the Northern District of Illinois. N.D. Ill. Internal Operating Procedure 15(a).

A bankruptcy judge to whom a case has been referred may enter final judgment on any core proceeding arising under the Bankruptcy Code or arising in a case under title 11. 28 U.S.C. § 157(b)(1). A motion to dismiss a bankruptcy case may only arise in a case under title 11 and is therefore a core matter in which this court has jurisdiction to enter final orders under 28 U.S.C. § 157(b)(2)(A). In re Deutscher, 419 B.R. 42, 43 (Bankr.N.D.Ill.2009) (Barbosa, J.).

Accordingly, final judgment is within the scope of the court’s authority.

PROCEDURAL HISTORY

Before the court is the question of whether the Debtor’s chapter 7 bankruptcy case should be dismissed “for cause” under section 707(a) of the Bankruptcy Code. To best understand the matter, it is necessary to understand first the circumstances which led the court to enter the Order To Show Cause.

On July 5, 2013, the Debtor commenced the above-captioned case by filing a petition under chapter 7 of the Bankruptcy Code (the “Petition Date ”). On August 22, 2013, a meeting of creditors (the “311 Meeting”) was conducted by the trustee (the “Chapter 7 Trustee ”). The following day, the Chapter 7 Trustee filed a “Chapter 7 Trustee’s Report of No Distribution” (the “No Asset Report ”) in the case. The No Asset Report indicated that “there is no property available for distribution from the estate over and above that exempted by law.”

Ordinarily, the filing of the No Asset Report will result in a debtor receiving its discharge under section 727(a) of the Bankruptcy Code once the period for objections under Rule 4004(a) of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) has expired. That did not occur here, as before the expiration of that period, Pella Windows & Doors, Inc. (“Pella ”), one of the creditors of the Debtor, filed a Motion To Dismiss for Cause (the “Motion To Dismiss ”) under section 707(b) of the Bankruptcy Code. Pursuant to Rule 4004(c)(1)(D), a discharge may not be entered while a motion to dismiss under section 707 is pending.

The Motion To Dismiss alleged that the Debtor’s bankruptcy case constituted an abuse of chapter 7, and thus should be dismissed under section 707(b)(1) of the Bankruptcy Code. Among the abusive aspects of the case alleged by Pella were: (1) significant expenditures by the Debtor on questionable purchases, made immediately prior to the commencement of the case and after Pella had served the Debtor with a citation to discover assets, (2) undisclosed payments to family members made within the year preceding the case and (3) an excessive and unreasonable proposed budget, particularly with respect to the high housing expense.

The court conducted several hearings on the Motion To Dismiss. On November 12, 2013, the court conducted an initial hearing and set a briefing schedule on the Motion [122]*122To Dismiss. After the conclusion of briefing, the court on December 17, 2013 conducted a second hearing and determined that an evidentiary hearing was necessary. That hearing was scheduled for January 27, 2014.

Prior to the evidentiary hearing, the Debtor obtained the assistance of new counsel. With the assistance of new counsel, the Debtor amended her Schedules F, I and J. She also amended her bankruptcy Petition, to indicate that her debts were primarily business debts, not consumer ones. Those amendments, discussed in more detail below, were made in the week prior to the evidentiary hearing, the last being filed just two business days before the hearing. In light of the late-filed amendments to the Schedules and Petition, the court continued the hearing on the Motion To Dismiss that was scheduled for January 27, 2014 to March 3, 2014. Prior to the March 3, 2014 hearing, the Debtor amended her Schedule F.

On March 3, 2013, the court considered the Motion To Dismiss on its merits. Because the Debtor’s amendments had changed the nature of the Debtor’s debts from primarily consumer to primarily business debts, the court determined that a ruling on the merits of the Motion To Dismiss was procedurally forestalled. The court therefore denied the Motion To Dismiss but, because the amendments not only fundamentally changed the nature of the Debtor’s debts but also added creditors well beyond the deadline to object to the Debtor’s discharge under Bankruptcy Rule 4004, the court on its own motion entered the Order To Show Cause to join the issue of whether the Debtor’s actions had not given rise for dismissal “for cause” under section 707(a) of the Bankruptcy Code.

In considering the Order To Show Cause, the court has considered the arguments of the parties at the hearings on the Order To Show Cause that took place on April 28, 2014, June 17, 2014 and August 26, 2014 and the hearings on the Motion To Dismiss (collectively, the “Hearings”), as well as the evidence adduced at the Hearings, and has reviewed and considered the following filed documents in the bankruptcy case:

(1) Chapter 7 Voluntary Petition [Docket No. 1];
(2) Schedules A, B, C, D, E, F, G, I, and J [Docket No. 15];
(3) The Debtor’s Statement of Financial Affairs [Docket No. 16];
(4) Pella’s Motion To Dismiss [Docket No. 33];
(5) The Debtor’s Response to Motion To Dismiss [Docket No. 37];

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Cite This Page — Counsel Stack

Bluebook (online)
517 B.R. 119, 2014 Bankr. LEXIS 4066, 2014 WL 4628906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jakovljevic-ostojic-ilnb-2014.