463 B.R. 115
Bankr. N.D. Ill.2011Background
- Debtors Gregg A. Braverman and Stacy J. Braverman own a home in Oakland Ridge, Lake Villa, Illinois, within a subdivision with covenants in a Declaration restricting use of property.
- The Declaration requires a wood fence around rear yards with pools, regulates pool construction, and restricts alterations to a conservancy area; the Association enforces these covenants and may seek costs, including attorney’s fees.
- In 2004 the Bravermans built an in-ground pool and enclosed it with a wrought-iron fence, not wood, within a conservancy area, violating the Declaration.
- The Association sued in state court for injunctive relief, and the state court later issued a mandatory injunction ordering removal of the pool and fence and awarded attorney’s fees and costs.
- The Bravermans filed Chapter 7 bankruptcy; the automatic stay was annulled to validate the state court decision, and they received their discharge four days later; the Association then filed an adversary proceeding asserting two claims: a nondischargeable debt under §523(a)(6) for breach of the Declaration and a §523(a)(16) claim for post-petition attorney’s fees; the court granted in part and denied in part the motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §523(a)(6) nondischargeability requires an independent tort. | Association claims breach of the Declaration constitutes a tort. | Bravermans contend it is a contract breach, not tort. | Count I dismissed; no independent tort pleaded. |
| Whether post-petition attorney’s fees are nondischargeable under §523(a)(16). | Association incurred post-petition fees enforcing the Declaration. | Post-petition fees may be discharged. | Count II survives; post-petition fees alleged are nondischargeable. |
Key Cases Cited
- Kawaauhau v. Geiger, 523 U.S. 57 (1998) (willful and malicious injury requires intentional torts)
- Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346 (Bankr.N.D. Ill. 2001) (tortious conduct required for §523(a)(6))
- Salem Bend Condo. Ass’n v. Bullock-Williams (In re Bullock-Williams), 220 B.R. 345 (6th Cir. BAP 1998) (declarations run with the land; breach sounds in contract)