In re Wilson

536 B.R. 218, 2015 WL 5118751
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedAugust 28, 2015
DocketCase No. 12bk29926
StatusPublished
Cited by5 cases

This text of 536 B.R. 218 (In re Wilson) 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 Wilson, 536 B.R. 218, 2015 WL 5118751 (Ill. 2015).

Opinion

MEMORANDUM DECISION

Bruce W. Black, United States Bankruptcy Judge

This dispute concerns the intersection of the automatic stay under the Bankruptcy Code1 and the sale of property for nonpayment of real estate taxes under the Illinois Property Tax Code, 35 ILCS 200/1-1 et seq. The Debtor has not participated in the contest. Two creditors have .filed motions for retroactive relief from the automatic stay. A third creditor asks prospective relief from the stay and a declaration that actions by the state court were void. The ultimate purchaser has moved to intervene and supports the retroactive relief from the stay. For the reasons below the court concludes that retroactive relief from the stay is appropriate.

Background

The following facts are not in dispute. On July 30, 2012, Lea Deidre Wilson (the [220]*220Debtor) filed a petition for bankruptcy relief under chapter 13 of the Bankruptcy Code. The Debtor’s Schedules include the real property at 1223 E. 85th Street, Chicago, IL (the Property). The schedules list the Property at $107,000, subject to a secured claim of $10,000. The Debtor also states in her Schedules that the Property is “encumbered by a $64,000 mortgage from CitiMortgage not in debtor’s name— sold for tax debt 9/15/10.” (Dkt. 1, Schedule A). According to the Debtor’s Modified Plan, confirmed on January 22, 2013, the Debtor intended to sell the Property by March 20, 2013 and use the non-exempt proceeds to help fund her Chapter 13 plan. The Debtor did not sell the Property, and according to the parties’ briefs the Debtor merely vacated the Property at some point. The issue here is the ownership of the Property.

A. CitiBank

The Debtor acquired her interest in the Property from Louella Wilson through a quit claim deed dated November 30, 2007 and recorded on December 13, 2007. Previously, on or about September 11, 2007, Louella Wilson had encumbered the Property with a mortgage in favor of CitiBank, N.A. (“CitiBank”), and the Debtor took the Property subject to the mortgage. According to CitiBank, the last payment it received on the mortgage was on April 22, 2011. As a result, CitiBank filed a foreclosure suit against both the Debtor and Louella Wilson in the Circuit Court of Cook County, Illinois. That suit was ultimately dismissed on December 21, 2011 for want of prosecution. CitiBank never moved to vacate the dismissal or to refile its foreclosure suit.

Even though CitiMortgage was incorrectly listed as the mortgagee on the Debt- or’s Schedules, CitiBank did in fact receive notice of the bankruptcy filing as it was also listed as a “Creditor Holding Unsecured Non-Priority Claims” on the Debt- or’s Schedule F due to an Overdraft Account.

The Debtor’s confirmed plan did not provide for CitiBank as a secured creditor. As a consequence, Citibank was treated as an unsecured creditor. CitiBank did file a proof of claim, but it was filed on December 27, 2012, after the claims bar date. Consequently, the Chapter 13 Trustee objected to CitiBank’s proof of claim, and on July 16, 2013 the court disallowed the claim in full.

B. Gothic/Goliath

In 2008 the Debtor failed to pay real estate taxes on the Property, and on September 15, 2010 the Debtor’s 2008 delinquent tax debt was sold to Gothic Investment, LTD (“Gothic”). Under the Illinois statute the redemption date was set as July 2, 2013. On January 10, 2013 Gothic filed a petition for a tax deed with the Illinois circuit court. Gothic served both the Debtor and CitiBank with the required Take Notices. The Notice informed the parties that the tax debt was bought by Gothic, that the redemption date was July 2, 2013, and that the matter was set for hearing on August 2, 2013. It also informed the parties that title to the Property would transfer if the Property were not redeemed and urged the parties to redeem. Neither the Debtor nor CitiBank redeemed by the redemption date.

On August 2, 2013 the state court scheduled an evidentiary hearing to determine whether the tax deed should be issued. That hearing was held on August 13, 2013, and no one appeared to oppose Gothic. After a brief evidentiary hearing, the matter was taken under advisement. On August 21, 2013 the state court entered an Order Directing County Clerk to Issue Tax Deed and for Other Relief. On Sep[221]*221tember 4, 2013, Gothic’s Tax Deed was recorded. Gothic then sold the property to Goliath Corporation (“Goliath”) on March 28, 2014. Goliath’s warranty deed from Gothic was recorded on April 8, 2014. According to Goliath’s briefs, Goliath then spent about $85,000 renovating the Property. After the renovations, Goliath sold the property to Roslyn Harris (“Harris”) on October 23, 2014, who recorded the warranty deed on November 18, 2014. Harris has taken out two mortgages on the Property, and, by all indication, she currently resides there.

C. Case at Hand

Despite admitting in her schedules that the Property was “sold for tax debt 9/15/10,” the Debtor’s schedules only list the Cook County Collector as the creditor to whom the tax debt is owed. (Dkt, 1). The Schedules did not list Gothic as a creditor, and, according to the briefs, Gothic did not learn of the bankruptcy until a dispute arose between Gothic and CitiBank over CitiBank’s mortgage in March of 2015.

After learning of the bankruptcy, Gothic filed the present Motion to Annul Stay asking for this Court to annul the automatic stay, nunc pro tunc, to the date of filing. Goliath has filed its own Motion to Retroactively Annul the Automatic Stay and for Other Relief which requests that this court retroactively annul the stay to the date of filing of the petition, and to ratify the state court issuance of the tax deed to Gothic, Gothic’s transfer to Goliath, and Goliath’s transfer to Harris. CitiBank has filed a Motion to Declare Tax Deed Void and for Relief from the Automatic Stay. Finally, Harris brought a Motion to Intervene in Addition to Motion for Leave to File Memorandum in Support of Motion to Annul Stay and in Opposition to Petition to Declare Tax Deed Void.

The four motions have been consolidated here, and for the following reasons Gothic’s motion will be granted, Goliath’s motion will be granted, CitiBank’s motion will be granted in part and denied in part, and Harris’s motion will be denied as moot.

II. Jurisdiction

This court has subject matter jurisdiction under 28 U.S.C. § 1334(a)and Internal Operating Procedure 15(a) of the District Court for the Northern District of Illinois. Pursuant to 28 U.S.C. § 157(b)(1), the bankruptcy judge presiding over a referred case has jurisdiction to enter appropriate orders and judgments in “core proceedings” within the case. Because the motions now before the court deal with the automatic stay, they are core proceedings under 28 U.S.C. § 157(b)(2)(G), and this court may enter final orders.

III. Discussion

A. The Automatic Stay

Section 362(a) of the Bankruptcy Code provides that a petition filed under Title 11 operates as a stay of:

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Cite This Page — Counsel Stack

Bluebook (online)
536 B.R. 218, 2015 WL 5118751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wilson-ilnb-2015.