In re Schwartz

532 B.R. 710, 73 Collier Bankr. Cas. 2d 286, 2015 Bankr. LEXIS 456, 2015 WL 3980345
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedFebruary 11, 2015
DocketCase No. 13 B 44047
StatusPublished
Cited by5 cases

This text of 532 B.R. 710 (In re Schwartz) 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 Schwartz, 532 B.R. 710, 73 Collier Bankr. Cas. 2d 286, 2015 Bankr. LEXIS 456, 2015 WL 3980345 (Ill. 2015).

Opinion

MEMORANDUM OPINION IN SUPPORT OF ORDER GRANTING MOTION TO DISMISS

PAMELA S. HOLLIS, U.S. Bankruptcy Judge

This matter came before the court on September 16, 2014.1 The court ruled orally at the end of that hearing, granting the motion of Barclays Capital, Inc. to dismiss Aseneta and Michael Schwartz’s Chapter 7 bankruptcy case. The order granting the motion to dismiss provided that the Sehwartzes’ time to appeal would be extended to fourteen days following the docketing of the court’s ruling on the case trustee’s fee application.

The parties eventually filed a joint request for certification of direct appeal to the Court of Appeals for the Seventh Circuit, and appeared before the court on January 15, 2015, to present this request. At that time, the court determined that a written opinion in support of the order granting the motion to dismiss would be appropriate in order to provide clarity to the record.

■ Barclays’ motion to dismiss was granted for cause pursuant to 11 U.S.C. § 707(a), as described below.. Since the court is issuing an order on the case trustee’s fee application concomitantly with this memorandum opinion, the time to appeal the order granting the motion to dismiss will begin to run on the docketing date of that fee application order. Fed. R. Bankr. P. 8002(a)(1) requires a notice of appeal to be filed within fourteen (14) days after entry of the judgment, which in this case would be February 25, 2015. The time to appeal the order granting the motion to dismiss is extended an additional seven (7) days,' however, to March 4, 2015, in consideration of the request made by Michael Schwartz in open court.

BACKGROUND

When Michael Schwartz joined Barclays Capital, Inc. in November 2010, he re- ' ceived a $2.8 million employment package. Of that amount, $400,000 was paid to him shortly after he began work, in the form of a loan that would be forgiven in equal installments on the first through seventh anniversaries of his start date.2 Michael’s employment with Barclays was terminated on May 22, 2012. This allegedly triggered an obligation to repay most of the $400,000. When Michael did not repay the funds, Barclays filed a Statement of Claim pursuant to the Financial Industry Regulatory Authority (FINRA). Michael filed certain counter-claims. In September 2013, the FINRA arbitration panel entered an award in favor of Barclays in the [712]*712amount of $568,568: compensatory damages of $314,286; interest of $9,603; and attorneys’ fees of $244,679.

On October 28, 2013, FINRA notified Michael that within three weeks he would be suspended from association for failure to pay the award, unless one of four defenses was applicable. Michael attempted to reach a negotiated settlement with Bar-clays, which would have been a satisfactory defense, but was unsuccessful. He then chose to file for relief under Chapter 7 of the Bankruptcy Code, which was another of the four defenses.

According to Schedule I, Michael earns monthly gross wages of $11,008.94. After deductions for payroll taxes, Social Security, insurance and a contribution of $20 to United Way, he takes home $7,349.52 in earned income. He also receives $2,200 in rental income from real property, for a total average monthly income of $9,549.52.

The Schwartzes’ monthly budget on Schedule J includes the following items:

[[Image here]]

The Schwartzes’ budgeted expenses exceed their income by $1,560.48.

In 2013, the year that they filed for relief under Chapter 7, the Schwartzes took one or two trips to Disney World in Orlando, Florida. In 2014, they went snowboarding a couple of times at a local ski resort. They also made regular monthly payments on their Range Rover and Michael voluntarily contributed 5% of his paycheck to a retirement plan. Although Aseneta does not work outside the home, their older child attends private kindergarten full time at a cost of $18,000/ year and started swimming lessons in the spring of 2014. Their younger child attends a drop-in program once or twice a week at a cost of $50 or $60 per session.

[713]*713LEGAL DISCUSSION

11 U.S.C. § 707 contains the Code sections that govern dismissal of a Chapter 7 case:

(a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including—
(1) unreasonable delay by the debtor that is prejudicial to creditors;
(2) nonpayment of any fees or charges required under chapter 123 of title 28; and
(3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521(a), but only on a motion by the United States trustee.
(b)(1) After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, trustee (or bankruptcy administrator, if any), or any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts, or, with the debtor’s consent, convert such a case to a case under chapter 11 or 13 of this title, if it finds that the granting of relief would be an abuse of the provisions of this chapter. In making a determination whether to dismiss a case under this section, the court may not take into consideration whether a debtor has made, or continues to make, charitable contributions (that meet the definition of “charitable contribution” under section 548(d)(3)) to any qualified religious or charitable entity or organization (as that term is defined in section 548(d)(4)).

Although Barclays requested dismissal under both §§ 707(a) and (b), § 707(b) is applicable only if a debtor’s “debts are primarily consumer debts.” Rather than consume the parties’ time and resources with an evidentiary hearing to determine whether the Sehwartzes’ debts are primarily consumer debts, the court determined that dismissal was appropriate for cause, under § 707(a).

The Seventh Circuit has not ruled on the meaning of “cause.”3 The Circuits that have reached a decision on this issue are split in their interpretation of § 707(a) — is it limited to technical and procedural issues, or is “cause” defined more expansively? Compare Perlin v. Hitachi Capital America Corp., 497 F.3d 364 (3rd Cir. 2007); Industrial Ins. Servs., Inc. v. Zick, 931 F.2d 1124 (6th Cir. 1991) with In re Padilla, 222 F.3d 1184 (9th Cir. 2000); In re Huckfeldt, 39 F.3d 829 (8th Cir. 1994). The trial level courts, including those within the Seventh Circuit, are split as well. Compare In re Adolph, 441 B.R. 909 (Bankr. N.D. Ill. 2011) (Goldgar, J.)

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

Related

LLC 1 07CH12487
N.D. Illinois, 2019
In re Dini
566 B.R. 220 (N.D. Illinois, 2017)
In re Gourley
549 B.R. 210 (N.D. Iowa, 2016)
In re Wilcox
539 B.R. 137 (S.D. Texas, 2015)
In re Rowell
536 B.R. 245 (E.D. Wisconsin, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
532 B.R. 710, 73 Collier Bankr. Cas. 2d 286, 2015 Bankr. LEXIS 456, 2015 WL 3980345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-schwartz-ilnb-2015.