Matter of Jones

117 B.R. 415, 1990 Bankr. LEXIS 1732, 20 Bankr. Ct. Dec. (CRR) 1315, 1990 WL 114338
CourtUnited States Bankruptcy Court, N.D. Indiana
DecidedJuly 26, 1990
Docket19-20080
StatusPublished
Cited by13 cases

This text of 117 B.R. 415 (Matter of Jones) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Jones, 117 B.R. 415, 1990 Bankr. LEXIS 1732, 20 Bankr. Ct. Dec. (CRR) 1315, 1990 WL 114338 (Ind. 1990).

Opinion

DECISION

ROBERT E. GRANT, District Judge.

Between March 20, 1987 and March 14, 1990, the debtor filed five separate petitions for relief under the United States Bankruptcy Code. Each case created the automatic stay of 11 U.S.C. § 362. Each case was also dismissed; the most recent dismissal carrying with it the prohibition that debtor shall not be eligible for relief under any Chapter of Title 11 for a period of one year. This matter is currently before the court on Lincoln National Bank and Trust Company’s motion for sanctions. Pursuant to Bankruptcy Rule 9011, Lincoln Bank seeks the imposition of sanctions as a result of debtor’s third and fourth bankruptcy petitions.

Lincoln Bank is a creditor of the Debtor, James Melbourne Jones and his wife, Rho-nita E. Jones. As security for payment of the obligation to it, Lincoln Bank holds the first mortgage upon debtor’s residence.

The debtor has failed and refused to make the mortgage payments due Lincoln Bank for over five years.

On October 9, 1986, Lincoln Bank filed a complaint against the debtor and his wife, with the Allen Superior Court, which sought to foreclose its mortgage upon their residence. A hearing on the bank’s motion for summary judgment was to have taken place in that action on March 20, 1987 at 9:00 a.m. On the morning of March 20, 1987, before the state court could hear the bank’s motion for summary judgmént, the debtor filed a petition for relief under Chapter 11 which was docketed with this court as Case Number 87-10333. This case was dismissed in July of 1987 due to debt- or’s failure to file proper schedules.

Following the dismissal of debtor’s first case, the hearing on the bank’s motion for summary judgment was re-scheduled for July 30, 1987 at 9:00 a.m. On the morning of July 30, 1987, before the state court could hear the motion for summary judgment, the debtor filed his second petition for relief under Chapter 11, which was docketed in this court as Case Number 87-11018. By its order of February 11, 1988, this court relieved Lincoln National Bank of the automatic stay and ordered the residence securing payment of the amounts due it to be abandoned. Debtor’s second bankruptcy case was dismissed on February 19, 1988 due to debtor’s failure to file a plan and disclosure statement.

Sometime between February 19, 1988 and May 31, 1989, Lincoln Bank was successful in reducing its claim against the debtor to judgment and obtaining a decree *418 of foreclosure. A sheriffs sale was scheduled for May 31, 1989, at which the debt- or's residence was to be sold.

On May 30, 1989, the debtor filed his third bankruptcy petition, this time seeking relief under Chapter 7, which was docketed in this court as Case Number 89-10813. Debtor requested and, by the court’s order of June 15, 1989, was granted an extension of time to June 26, 1989 within which to file the statement of affairs, schedule of assets, and schedule of income and expenses. On June 26, 1989, rather than filing the required statement and schedules, debtor, by counsel, filed a motion to dismiss the Chapter 7 case “for the reason that debtor does not wish to proceed.” During the pendency of the issues raised by debtor's motion to dismiss, Lincoln Bank requested and, on September 13, 1989, received relief from the automatic stay and the abandonment of the real estate securing its claim. As a result of this relief, debtor’s residence was again scheduled to be sold at a sheriff’s sale to be held on November 15, 1989.

On November 14, 1989, the debtor filed his fourth bankruptcy case with another petition for relief under Chapter 11, which was docketed in this court as Case Number 89-11690. On the date that this petition was filed, the debtor’s prior Chapter 7 was still pending before the court and, because of the pending motion to dismiss, no discharge had been entered.

Debtor’s motion to dismiss his Chapter 7 case was granted by the court’s order of January 8, 1990, with the proviso that the court would retain jurisdiction over Lincoln Bank’s pending motion for sanctions.

Debtor’s fourth bankruptcy case, the Chapter 11 petition docketed as Case Number 89-11690, was dismissed by the court’s order of January 11, 1990, with the proviso that the court would retain jurisdiction over a pending motion for sanctions filed on behalf of Lincoln Bank.

In each of the debtor’s first four bankruptcy eases, Mr. Roland Gariepy served as counsel for the debtor and signed the petitions as counsel for the debtor.

Following the dismissal of debtor’s fourth bankruptcy, the sheriff’s sale of debtor’s residence was rescheduled for March 14, 1990. On March 14, 1990, before this sale could take place, the debtor, this time proceeding pro-se, filed his fifth bankruptcy case with a petition for relief under Chapter 11.

Debtor has filed five bankruptcy petitions in less than three years; the first four of which were signed by both Roland W. Gariepy, as counsel for the debtor, and the debtor. The most recent petition was signed solely by the debtor.

Lincoln National Bank asks the court to impose sanctions upon the debtor and his counsel as a result of the third and fourth bankruptcy petitions. The bank contends that these petitions were signed and filed in violation of Bankruptcy Rule 9011. As sanctions, at a minimum, it seeks to recover the reasonable costs, expenses, and attorney fees it has incurred as a result of the two petitions in question. The evidence before the court indicates that these charges total $2,216.75, which the court finds to be reasonable.

While the provisions of Bankruptcy Rule 9011 are different from its counterpart, Rule 11 of the Federal Rules of Civil Procedure, for the purposes of this decision these differences are meaningless. In relevant part, the Rule provides

Every petition, pleading, motion and other paper served or filed in a case under the Code on behalf of a party represented by an attorney ... shall be signed by at least one attorney of record in the attorney’s individual name_ The signature of an attorney or a party constitutes a certificate that the attorney or party has read the document; that to the best of the attorney’s or party’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, to cause delay, or to increase the cost of litigation.... If a document is signed in violation of this rule, the *419 court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. Bankruptcy Rule 9011 (emphasis added).

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Cite This Page — Counsel Stack

Bluebook (online)
117 B.R. 415, 1990 Bankr. LEXIS 1732, 20 Bankr. Ct. Dec. (CRR) 1315, 1990 WL 114338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-jones-innb-1990.