Leathem v. Von Volkmar (In Re Von Volkmar)

217 B.R. 561, 1998 Bankr. LEXIS 81, 1998 WL 45200
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedFebruary 2, 1998
Docket19-03826
StatusPublished
Cited by16 cases

This text of 217 B.R. 561 (Leathem v. Von Volkmar (In Re Von Volkmar)) 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
Leathem v. Von Volkmar (In Re Von Volkmar), 217 B.R. 561, 1998 Bankr. LEXIS 81, 1998 WL 45200 (Ill. 1998).

Opinion

AMENDED MEMORANDUM OPINION

JOHN H. SQUIRES, Bankruptcy Judge.

This matter comes before the Court on Plaintiffs demand for a trial by jury and Defendant’s denial thereof. For reasons set forth herein, the Court strikes and denies the demand as a matter of right as it applies to the equitable determination of whether Plaintiffs claims against Defendant are discharge-able under 11 U.S.C. § 523(a)(6). Because all the underlying claims which Plaintiff seeks to have liquidated are in the nature of alleged personal injuries, the Court lacks subject matter jurisdiction under 28 U.S.C. § 157(b)(5) to make such liquidation and award. Plaintiff may forthwith move to withdraw the District Court’s reference of this matter under 28 U.S.C. § 157(d) in order to preserve his claimed right to have a jury assess Defendant’s liability and award the damages claimed appropriate for Plaintiffs alleged personal injuries.

I. JURISDICTION AND PROCEDURE

This Court has jurisdiction to entertain this matter pursuant to 28 U.S.C. § 1334 and Local General Rule 2.33(A) of the United States District Court for the Northern District of Illinois. The determination of the issue of whether Plaintiff’s claims against Defendant are dischargeable or not under 11 U.S.C. § 523(a)(6) is a core proceeding under 28 U.S.C. § 157(b)(2)®. The Court, however, lacks subject matter jurisdiction to try or liquidate Plaintiff’s personal injury claims against either the bankruptcy estate or Defendant under 28 U.S.C. § 157(b)(5).

II. FACTS AND BACKGROUND

Defendant, Richele von Volkmar ffk/a Richele Leathern (“Defendant”), filed for bankruptcy protection under Chapter 7 of the United States Bankruptcy Code, 11 U.S.C. § 101 et seq., on February 14,1997. Prior to Defendant’s bankruptcy filing, Plaintiff, William Leathern (“Plaintiff”), filed two state court actions against Defendant involving various claims. Plaintiff initiated this adversary proceeding, pursuant to 11 U.S.C. § 523(a)(6), to determine dischargeability of various alleged debts based on the allegations presented in the state court actions. Because the state court actions were unresolved at the time of Defendant’s bankruptcy filing, Plaintiff also seeks liquidation and awards of damages for the claims underlying his dischargeability complaint as well as the dischargeability determination.

Plaintiff’s complaint includes the following allegations. Plaintiff and Defendant are former husband and wife. During the course of their marriage, the parties had two children. Defendant allegedly had threatened that she would “destroy [Plaintiffs] life and good reputation” if Plaintiff ever filed a dissolution of marriage petition (Plaintiffs Complaint, ¶ 10), which he did. Since their marital dis-' solution, Defendant has allegedly done exactly as she threatened. Plaintiffs complaint in this matter consists of the following six counts brought under 11 U.S.C. § 523(a)(6) and references his underlying state tort claims: (1) Count I: malicious prosecution of a criminal battery proceeding; (2) Count II: malicious prosecution of a civil proceeding for *563 an order of protection; (3) Count III: intentional infliction of emotional distress for false allegations of child sexual abuse and homosexuality; (4) Count IV: false light defamation relating to the prior counts; (5) Count V: tortious interference with business relationship relating to the prior counts; and (6) Count VI: defamation per se relating to the prior counts. In addition, the complaint contains a jury demand as to all counts. Among other things in her answer, Defendant denies that Plaintiff has a right to trial by jury in this Court and raises various affirmative defenses including privilege, immunity and statute of limitations.

It is the Court’s opinion that the jurisdictional limits created by 28 U.S.C. § 157(b)(5) effectively preclude this Court from determining the amounts of Plaintiffs various claims for damages against the Defendant and his demand for a jury trial on those issues can only be heard in the District Court for this District pursuant to § 157(b)(5). Consequently, in light of the limited subject matter jurisdiction of the Court, this opinion need not further extensively discuss the parties’ dispute over Plaintiffs claimed right to trial by jury and any related Seventh Amendment implications or application of 28 U.S.C. § 1411(a).

III. DISCUSSION

A. Jury Trials in Dischargeability Actions

In N.I.S. Corp. v. Hallahan (In re Hallahan), 936 F.2d 1496 (7th Cir.1991), the Seventh Circuit addressed the issue of whether a plaintiff is entitled to a jury trial in a bankruptcy dischargeability action. After conducting the two-part inquiry mandated by the Supreme Court in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) 1 the Seventh Circuit found that historically dischargeability proceedings had been tried without juries and the relief sought was equitable in nature “since the essence of a dischargeability claim is a declaration that a debt is indeed dis-chargeable or non-dischargeable.” Hallahan, 936 F.2d at 1505. As such, the Hallar han court determined that there wás no Seventh Amendment right to a jury trial in a dischargeability action. Id. This holding is controlling and must be followed by this Court.

After determining that no Seventh Amendment right to a jury trial existed on the equitable issue of whether the claim should be discharged under the Bankruptcy Code, the Hallahan court discussed whether 28 U.S.C. § 1411 conferred a right to a jury trial in a dischargeability proceeding. Section 1411 states as follows:

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

Related

Tucker v. Sansom
N.D. Ohio, 2025
Tyler Gordon
D. Idaho, 2022
Byrnes v. Byrnes
D. New Mexico, 2022
Kozec v. Murphy (In re Murphy)
569 B.R. 402 (E.D. North Carolina, 2017)
In re Residential Capital, LLC
536 B.R. 566 (S.D. New York, 2015)
In re Mason
514 B.R. 852 (E.D. Kentucky, 2014)
Reid v. Unilever United States, Inc.
964 F. Supp. 2d 893 (N.D. Illinois, 2013)
Dorris v. Chacon (In Re Chacon)
438 B.R. 725 (D. New Mexico, 2010)
Unnamed Citizens a Thru E v. White (In Re White)
410 B.R. 195 (W.D. Virginia, 2008)
Rizzo v. Passialis (In Re Passialis)
292 B.R. 346 (N.D. Illinois, 2003)
Leathem v. Von Volkmar (In Re Von Volkmar)
218 B.R. 890 (N.D. Illinois, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
217 B.R. 561, 1998 Bankr. LEXIS 81, 1998 WL 45200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leathem-v-von-volkmar-in-re-von-volkmar-ilnb-1998.