In re Kuzniewski
MEMORANDUM OPINION
Debtor Denise Kuzniewski seeks sanctions against North Shore Bank (a/k/a Illinois State Bank) (“North Shore”) and North Shore’s attorney, Andrea Lang, for their alleged failure to immediately “release” funds in accounts maintained at McHenry Savings Bank (“McHenry Bank”) that were subject to respondents’ pre-petition third party citation to discover assets upon McHenry Bank. For the reasons set forth herein, the motion will be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Debtor, an attorney, conducts her law practice through a limited liability company for which she is the 100% owner, The Law Offices of Denise M. Kuzniewski, LLC (“Kuzniewski LLC”). On June 7, 2013, Judge Bolger of the 22nd Judicial Circuit, McHenry County, Illinois entered a judgment of $22,548 plus court costs against “Denise M. Kuzniewski, individually and d/b/a the Law Office of Denise M. Kuzniewski” in favor of North Shore in a complaint under the Illinois Forcible Entry and Detainer Act. (Mot. for Rule to Show Cause, Ex. A, ECF No. 10.) The action was based on a default by the Debt- or or her law firm under an office lease in property. North Shore had obtained that property through a deed in lieu of foreclosure from the prior landlord.
In an effort to enforce the judgment, North Shore, through attorney Lang,
On July 29, 2013, the Debtor filed a voluntary petition under Chapter 13 of the Bankruptcy Code. Her initial filing consisted of a skeletal petition, submitted without schedules. This court’s docket reflects that the Debtor’s attorney electronically filed her petition at 8:28 a.m. Later that morning the citation hearing commenced before Judge Bolger. Attorney Lang appeared on behalf of North Shore as well as the Debtor’s bankruptcy counsel, Mr. Bro-dy. Ms. Lang initially asked the court to enter a turnover order in accordance with McHenry Bank’s answer to the citation. The Debtor’s counsel then stated that he had sent to Ms. Lang an e-mail about its bankruptcy after the Debtor had filed its Chapter 13 petition that morning. (Transcript, July 29, 2013 Hearing, ECF No. 32.) Ms. Lang testified, and it is not disputed, that she was unaware of this news until then. The court then briefly recessed. After some discussion between the attorneys, the matter was recalled and Judge Bolger was informed that Debtor’s attorney requested that the state court order the funds held by McHenry Bank be turned over to the Debtor. Ms. Lang asked that the funds remain with McHen-ry Bank until the bankruptcy court could make a determination. The Debtor’s counsel responded by insisting that the funds subject to the citation “belong” to the Debtor. Judge Bolger then ruled that it was the bankruptcy court that had jurisdiction to decide that matter, but the Debt- or still wished to be heard:
THE COURT: If Miss Kuzniewski has filed a Chapter 13, I’m not going to enter an order concerning these funds at all. The order should be entered by the bankruptcy court.
MR. BRODY: Well, that’s not entirely true, Judge.
THE COURT: Yes, it is true.
MR. BRODY: Can I — Can I respond with some—
THE COURT: You can respond, but I’m not going to enter an order. I don’t have jurisdiction of this matter anymore. The bankruptcy court has jurisdiction of the matter.
MR. BRODY: Counsel has an affirmative matter to dismiss this as of now. If she doesn’t—
THE COURT: I don’t think — I don’t know that that’s true or not. You can bring that matter before the bankruptcy judge.
MR. BRODY: I shall.
THE COURT: Good. Thank you.
MR. BRODY: Okay.
THE COURT: I need an order.
MR. BRODY: So what are we doing with the funds then at this time, Judge?
THE COURT: We’re just going to continue this matter generally. I’ll continue it to a specific date if you want me to.
MR. BRODY: No, let’s leave it general.
(Transcript, ECF No. 32.)
The following day the Debtor’s counsel sent an e-mail to Ms. Lang to again demand that North Shore dismiss its citation and “release the funds back to Ms. Kuz-niewski on or before noon on August 1, 2013.” (Mot., Ex. H, ECF No. 10.) Attorney Lang responded on August 1. She rejected the demand, and noted Judge Bol-ger’s ruling about his lack of jurisdiction and intention to preserve the status quo pending action in the bankruptcy proceedings. (Id. at Ex. J.) On August 6, 2013, the Debtor filed this motion for rule to show cause against attorney Lang and North Shore. The Debtor notes that North Shore failed to accede to her demand that North Shore immediately “dismiss” its citation and “release the funds” held by McHenry Bank back to the Debt- or, despite counsel’s requests made in front of Judge Bolger and in the July 30, 2013 e-mail.
On August 13, 2013, the Debtor filed a motion seeking an extension of the time to file her bankruptcy schedules. On August 23, 2013, the day of the initial hearing on the motion for rule to show cause, this court granted the Debtor the requested extension. The Debtor filed her schedules on August 30, 2013. Schedule B disclosed a checking account of $3,502.67 at McHen-ry Bank. Her Schedule C asserted an exemption in that account in the same amount pursuant to the Illinois ‘wild card exemption,’ 735 ILCS 5/12 — 1001(b). An additional $3,808.50 was deposited into the Debtor’s personal checking account at McHenry Bank between the petition date and August 30, 2013. This amount, the Debtor explained, constituted periodic child support payments from her ex-husband.
On September 13, 2013, and while the parties were in the process of briefing this motion, the Debtor filed a motion to avoid the North Shore lien in her checking account pursuant to 11 U.S.C. § 522(f). North Shore appeared but did not contest the motion, so long as it was without prejudice to the motion for rule to show cause and without prejudice to the two accounts in the name of Kuzniewski LLC. In an order entered on October 4, 2013, the court granted the motion to avoid the citation lien on the Debtor’s personal checking account only and directed North Shore to provide a copy of the order to McHenry Bank and to authorize the release of the lien. The parties reported on November 8, 2013 that the funds in the personal account had been released to the Debtor. However, the Debtor indicated that she wished to proceed on the motion for rule to show cause.
II. JURISDICTION
The court has jurisdiction to decide this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (G) and (O).
III. DISCUSSION
The central issue in this case is whether it was a violation of the automatic stay for North Shore and its attorney to fail to immediately take steps to either dismiss its citation or to cause McHenry Bank to release its administrative hold on the Debtor’s account. An automatic stay goes into effect upon the filing of the bank
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(2) the enforcement, against the debt- or or against property of the estate, of a judgment obtained before the commencement of the case under this title;
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the estate;
(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such hen secures a claim that arose before the commencement of the case under this title;
(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;
11 U.S.C. § 362(a). The automatic stay imposed under Section 362 serves two broad purposes:
First it provides debtors with protection against hungry creditors: ‘[i]t gives the debtor a breathing spell from its creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.’ ... Second, the stay assures creditors that the debtor’s other creditors are not racing to various courthouses to pursue the independent remedies to drain the debtor’s assets.
Dean v. Trans World Airlines, Inc.,
Section 362 provides that “an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(k)(l). To recover damages, a debtor must prove by a preponderance of the evidence, that:
(a) A bankruptcy petition was filed;
(b) The aggrieved debtor is an ‘individual’;
(c) The creditor had notice of the petition;
(d) The creditor’s actions were willful and violated the stay; and
(e) The debtor is entitled to a form of relief provided by Section 362(k).
Kondritz v. Univ. of Phoenix (In re Kondritz),
A. Certain Forms of Inaction May Constitute A Violation of the Stay
Here, the Debtor does not allege that either Ms. Lang or North Shore took
1. Exercising Control Over An Asset of the Estate
In Thompson v. General Motors Acceptance Corp., the Seventh Circuit held that a creditor who repossessed a vehicle pre-petition and refuses to return it to the debtor after a Chapter 13 case is filed violates the automatic stay.
Thompson is informative, but not directly on point. Here, unlike the creditor in Thompson, the respondents were not in possession of the funds in the account. Instead, the funds were in the Debtor’s account at a third party bank. Nor were the funds under the control of the respondents. While the third party bank had frozen the accounts in response to the pre-petition citation notice served by the respondents, the respondents could not obtain or direct the transfer of such funds without a further court order. See, e.g., Bank of America, N.A v. Johnson (In re Johnson),
2. Undoing Prior Violations of the Automatic Stay
Failure to take “reasonable steps” to remedy a prior stay violation in itself violates the automatic stay. Copeland v. Kandi,
3. Commencement or Continuation of a Proceeding
Although Section 362(a)(1) prohibits both the commencement and the “continuation” of a judicial proceeding, most courts have held that at least in some instances a case initiated before the petition date may be stayed for the course of the bankruptcy rather than dismissed without violating the automatic stay. See, e.g., Dennis v. A.H. Robins Co., Inc.,
In at least one Illinois case, while noting that some courts in other jurisdictions had required garnishment proceedings commenced pre-petition be dismissed pending resolution of the bankruptcy petition, the district court held that it would “not require formal dismissal of the garnishment proceedings [and would] not take any action in furtherance of the proceedings until the bankruptcy proceedings are resolved.” Chicago Painters’ & Decorators’ Pension, Health & Welfare & Deferred Savings Plan Trust Funds v. Cunha,
Here, the citation proceeding was commenced pre-petition. The state court was made aware of the bankruptcy quickly— less than an hour after it was filed — and before the state court made any substantive ruling. The state court immediately stayed the citation hearing and the respondents did not request that the court do otherwise. No obligations, deadlines or need to respond were imposed on the Debtor until the stay was lifted or the bankruptcy court ordered otherwise. This was sufficient and did not constitute a commencement or continuation of a judicial proceeding in violation of Section 362(a)(1).
4. Continuing Act to Enforce or Collect a Judgment or Debt
In some instances, a creditor may have an affirmative obligation to terminate certain acts or proceedings which were commenced pre-petition if they have the post-petition effect of collecting or attempting to collect a debt. Where a debt- or voluntarily initiates an automatic payroll deduction arrangement to pay a pre-petition debt, for example, the creditor violates the stay by continuing to deduct such amounts post-petition without the debtor’s formal post-petition consent. In re Hellums,
Here, the Debtor emphasizes that her bank put an administrative hold on her accounts in response to the citation and that exempt child support payments continued to be deposited in those accounts. She first cites In re HalL-Walker from this district to argue that the respondents are, therefore, required to dismiss the citation proceeding.
The citation proceeding under the Illinois statute, however, significantly differs in its substance and effect. Pursuant to 735 ILCS 5/2-1402(m), the proper service of a citation to discover assets on a third party respondent “creates a lien on ‘all personal property belonging to the judgment debtor in the possession or control of the third party or which thereafter may be acquired or come due the judgment debtor and comes into the possession or control of the third party to the time of the disposition of the citation.’ ” Cacok v. Covington,
It is this mixed nature of the proceeding that causes the tension with Section 362(a). The Debtor directs this court to a recent unpublished opinion in this district in which the court sanctioned a collection law firm for violating the automatic stay “when it refused to take steps to release the hold [that the third party citation re
In contrast, at least one published opinion from this district has stated that a judgment creditor is not required by the automatic stay to dismiss a citation, and if the creditor does so he or she will be treated as having voluntarily relinquished the citation lien. In re Tires N Tracks, Inc.,
Other courts have also agreed that a creditor should not be required to relinquish a valid hen to avoid sanctions for
While the automatic stay prevents creditors from taking certain actions, the Bankruptcy Code generally requires notice and an opportunity to be heard before a creditor may be deprived of a prop
Nor was dismissal of the citation proceeding necessary to protect either the Debtor or her bankruptcy estate. Since the state court was made aware of the bankruptcy and had stayed the citation proceeding, the status quo as of the petition date was maintained until this court could determine the rights of the parties to the funds in the accounts.
In this case, and in marked contrast to Thompson, the collateral securing North Shore’s lien was never in North Shore’s possession or control. Therefore, neither Section 362(a)(3) nor Section 542(a) (requiring any entity “in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363” to deliver such property to the trustee) apply. These provisions are central to the Seventh Circuit’s determination that the repossessed vehicle had to be returned immediately.
Here, of course, the controversy concerns a deposit account, not a vehicle.
Because of the unique nature of an Illinois citation lien and the circumstances of this case it would have been unfair to force North Shore to have to immediately decide whether to file a motion for stay relief or dismiss its citation upon learning of the bankruptcy. As discussed above, a citation lien in Illinois attaches only to nonexempt property. Here, as of the petition date, the Debtor had not asserted any exemptions, partially because the bankruptcy stayed the initial return date hearing on the citation. Without knowing how much of the account the Debtor would claim as exempt, North Shore would have had little or no way to determine whether the value of the lien exceeded the filing fee and costs and expenses of filing a motion for relief from stay, or if it was better off just dismissing the citation. The Debtor did not file schedules and assert her exemptions until August 30, 2013. The 341 meeting of creditors was not concluded until September 17, 2013, meaning the time to object to claims of exemption ran at least through October 17, 2013. It is notable that once the Debtor finally filed schedules and provided more information about the accounts, North Shore readily consented to this court avoiding the lien on the Debtor’s personal bank account.
Finally, it is notable that North Shore’s citation lien apparently covered two corporate deposit accounts of the Debtor’s law firm that the Debtor has admitted are not property of the estate. The citation as to such accounts would not have violated the automatic stay, but dismissal of the citation proceeding would have destroyed North Shore’s lien in those accounts. The Debtor argues that North Shore should have taken steps to get McHenry Bank to release at least the Debtor’s funds, or the Debtor’s exempt funds, but has not explained how North Shore could have done so without jeopardizing its lien, including its lien in the non-estate accounts. The Debtor suggested that North Shore could have telephoned McHenry Bank, but it seems unlikely given the language in the citation notice and case law on citation respondent liability that McHenry Bank would have acted without a court order. It is also highly questionable whether North Shore could have sought a partial release order from the state court bank without violating the automatic stay in doing so. In order to rule on a request for partial relief, the state court would have presumably had to decide issues such as the Debtor’s interest or ownership in accounts and the validity of the Debtor’s exemptions. At least one court has held that “post-filing dismissal in favor of the bankrupt of an action that falls within the purview of the automatic stay violates the stay where the decision to dismiss first requires the court to consider other issues presented by or related to the underlying case.” Dean v. Trans World Airlines, Inc.,
Therefore, based on the undisputed facts, the Debtor has not demonstrated that either North Shore or Attorney Lang violated the automatic stay when they did not immediately dismiss the citation lien on the three bank accounts, two of which later the Debtor conceded are not property of the estate.
B. Any Violation of the Stay Was Not Shown to be Willful
Even if North Shore’s or Ms. Lang’s inaction had been a violation of the
C. Conclusion
Therefore, Debtor’s motion for rule to show cause will be denied. The foregoing constitutes findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a) and Fed. R. Bankr.P. 7052.
A separate order will be entered consistent with this Memorandum Opinion.
Notes
. These three balances add up to $9,513.74. The Debtor has not explained the $15 discrepancy from the $9,528.74 amount listed in McHenry Bank’s answer to the citation.
. It has not been alleged that the Debtor was required to appear at future status hearings during the pendency of the bankruptcy case. Cf. In re Hafer, No. 13-10568,
. The lien is considered perfected as of the date the citation is served on the citation respondent. Cacok,
. The debtor in Rose did not seek sanctions against the judgment creditor who held the citation lien, and the creditor had already voluntarily dismissed its citation by the time the motion was heard, so it is not surprising that the court did not discuss the potential effect of dismissal on the creditor's lien rights or whether any lesser step than dismissal would have been acceptable.
. The court in In re Johnson suggested that for continuing garnishments a creditor may have an obligation to take at least some step, such as informing the employer of the bankruptcy.
. Concern that the automatic stay simply maintain the status quo and not alter secured creditors’ vested rights is also seen in Section 362(b)(3), which "permits perfection, or maintenance or continuation of perfection, free of the automatic stay that would otherwise be applicable, under circumstances in which the creditor’s action would be effective against a trustee.” 3 Collier on Bankruptcy ¶ 362.05[4] (Alan N. Resnick & Henry J. Som-mer eds., 16th ed. 2013).