MEMORANDUM OPINION
I.INTRODUCTION
The matter before the court is the motion of Union Carbide Corporation (“Carbide”) for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure as incorporated into the Federal Rules of Bankruptcy Procedure by Rule 7012 and for payment of allowed claims. 1 For the reasons set forth below, the court denies Carbide’s motion for judgment on the pleadings, and grants in part and denies in part Carbide’s motion for payment.
II. JURISDICTION
This court has jurisdiction pursuant to 28 U.S.C. § 1334(b) and General Rule 2.33(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), (B), (C), and (0).
III. BACKGROUND
After the commencement of an involuntary petition on January 6, 1993 against Enviro-dyne Industries, Inc. (“Envirodyne”), on January 7, 1993, certain of Envirodyne’s subsidiaries (collectively “Debtors”) filed petitions for relief under chapter 11 of the Bankruptcy Code and Envirodyne consented to the entry of an order for relief in the involuntary case.
In re Envirodyne Indus., Inc.,
Viskase Corporation (“Viskase”) is a subsidiary of Envirodyne. In its filings, Viskase scheduled Carbide
2
as having an unsecured, undisputed, liquidated, and non-contingent claim totalling $494,421.95.
3
On May 10, 1993, Carbide filed an amended proof of claim (“Claim No. 598”) totalling $849,898.95, which represents the amounts due Carbide for goods, wares, and merchandise sold and delivered to Viskase on open account. Pur
On December 17, 1993, this court entered an order confirming the Debtors’ “First Amended Plan of Reorganization as Twice Modified” (“Plan”).
In re Envirodyne Indus., Inc.,
On June 28, 1994, Viskase timely filed an adversary complaint wherein Viskase objects to Claim No. 598, asserts a counterclaim against Carbide, and requests set-off. 4 Vis-kase did not list or disclose the counterclaim against Carbide in its petition for relief, in its schedule of assets (11 U.S.C. § 521(1)), in its disclosure statement (11 U.S.C. § 1125), or in its Plan. Viskase’s objection does not challenge the amount of Claim No. 598. Rather, Viskase, while admitting the amounts set forth in Claim No. 598, asserts that Carbide owes Viskase approximately $820,000 and seeks to offset this amount owed to it against the amount it owes Carbide. 5
The basis for the counterclaim arises out of the 1986 agreement between Carbide and Viskase (“Sales Agreement”) 6 for the sale of certain Carbide assets to Viskase. Among the assets sold was a plant in Osceola, Arkansas (“Osceola Plant”). According to the complaint, Carbide caused and was responsible for the release of hazardous substances contaminating the soil and the groundwater at the Osceola Plant prior to the 1986 sale. Viskase contends that it has incurred expenses in investigating and correcting the environmental damage caused by Carbide at the Osceola Plant. Viskase completed the investigation and the cleanup in 1992 pursuant to a consent decree entered into between Viskase and the State of Arkansas. Viskase asserts that Carbide owes Viskase reimbursement for the cleanup expenditures under two theories: (1) CERCLA 7 ; and (2) an indemnity clause contained in the Sales Agreement. Viskase seeks to set-off the amounts it is entitled to be reimbursed by Carbide against Carbide’s Claim No. 598. Viskase also seeks to set-off whatever amount of money that Carbide may be required to pay upon the conclusion of the now-pending litigation in the Ontario Court of Justice (“Canadian Litigation”). 8
IV. ISSUES
The following are the issues before the court:
(1) Whether the timely assertion of a counterclaim or set-off is a sufficient “objection” to preclude the payment of an allowed claim under a confirmed plan;
(2) Whether a debtor’s failure to list or disclose a claim against a creditor in its
(3) Whether a debtor’s failure to list or disclose a claim against a creditor in its schedule of assets, its disclosure statement, or its plan judicially estops the debtor from asserting that cause of action post-confirmation where the creditor in question was unimpaired under the plan and the debtor knew, and the creditor may well have known, the relevant facts prior to confirmation; and
(4) Whether a debtor is unable, by reason of state law, to assert a set-off against a creditor’s claim where the party seeks to offset an unadjudieated counterclaim as well as the results of unadjudicated foreign litigation.
V. ANALYSIS
A. Standards for Judgment on the Pleadings 9
A motion for judgment on the pleadings pursuant to Rule 12(c) “is subject to the same standard as a motion to dismiss under Rule 12.”
Craigs, Inc. v. General Elec. Capital Corp.,
B. Objections to Proof of Claim
Carbide asserts that it is entitled to immediate payment of the sum of $849,898.95, which represents (a) $494,421.95 scheduled as undisputed; (b) $293,562.90 claimed as a reclamation, or, in the alternative, an administrative, expense; and (c) $61,914.10, which is the difference between the unsecured claim as claimed by Carbide and as scheduled by Viskase. Carbide asserts that the sum of $61,914.10 is a Contested Claim to which no timely objection was filed because Viskase did not make a proper “objection” to Claim No. 598.
On the other hand, Viskase contends that it did file a proper “objection” to Claim No. 598 in the form of the adversary complaint wherein Viskase asserts a counterclaim and a request for set-off. Viskase acknowledges that it is not challenging or disputing the total amount of Claim No. 598. See Viskase Corporation’s Response Brief at 19. Instead, Viskase maintains that set-off and counterclaim are defenses to claims and properly serve as grounds for an “objection” to a claim. Viskase concludes that because it timely filed a proper objection to Claim No. 598, Claim No. 598 is not an Allowed Claim under the Plan that is entitled to immediate payment in full in cash.
The definition of what constitutes a Contested Claim is set forth in section 1.18 of the Plan. Where a claim is listed in the schedule of liabilities as undisputed, liquidated, and not contingent, and a proof of claim has been filed as to that claim, the claim is a Contested Claim, but only to the extent the amount set forth in the proof of claim exceeds the amount scheduled. Id. at § 1.18(b). 11 The result, under the terms of the Plan, is that the amount scheduled as owed to the claimant is not a Contested Claim, and, to that extent, it is an Allowed Claim. Id. at §§ 1.18(b) and 1.02(a). The excess amount or balance is a Contested Claim which, if a timely objection is filed, cannot become an Allowed Claim until the court rules on the objection or it is abandoned. Id. at §§ 1.18(b) and 1.02(b). 12
It is undisputed that in Viskase’s schedule of liabilities, Viskase listed Carbide’s claim in the amount of $494,421.95 as undisputed, liquidated, and non-contingent, that Carbide filed Claim No. 598 in the amount of $849,-898.95, and that the amount set forth in the proof of claim, $849,898.95, exceeds the amount set forth in Viskase’s schedule of liabilities, $494,421.95. It is also undisputed that Claim No. 598 consists of unsecured and administrative claims. The issue, therefore, is whether Claim No. 598 or any part thereof is an Allowed Claim under the Plan, which in turn requires a determination of whether it or any part thereof is a Contested Claim.
Pursuant to § 1.18(b) of the Plan, 13 $494,421.95 of Carbide’s Claim No. 598 constitutes an Allowed Claim, not a Contested Claim, because that is the amount listed as undisputed, liquidated, and not contingent in Viskase’s schedule of liabilities, and Carbide did file a proof of claim that exceeds the amount listed. See id. at §§ 1.02(a) and 1.18(b). Therefore, $494,421.95, as the scheduled amount, is an Allowed Claim, and, according to the terms of the Plan, it is to be paid now. Id. at §§ 2.01, 3.11, and 4.04. As an Allowed Claim under the Plan, that amount is not subject to the objection and Viskase is obligated to pay that amount. See id. at § 4.04. Accordingly, the court will grant Carbide’s motion for payment in part, that is, to the extent of $494,421.95, which represents the portion of Claim No. 598 that is an Allowed Claim under the Plan.
Viskase has agreed, through the Plan, to pay general unsecured and administrative claims in full to the extent such claims are Allowed Claims and not Contested Claims.
Id.
at §§ 1.02(a), 1.18(b), and 4.04. By definition, to the extent a claim or a part thereof
Under the terms of the Plan, the balance of Claim No. 598 or the excess amount of $355,477 constitutes a Contested Claim. See id. at § 1.18(b). This amount represents the difference between Claim No. 598 as filed, $849,898.95, and the scheduled amount of $494,421.95. Pursuant to the Plan, that excess portion, $355,477, is a Contested Claim and thus not an Allowed Claim. Id. at §§ 1.18(b) and 1.02. At the time of confirmation of the Plan, pursuant to § 1.18(b), no objection need be filed in order for a portion of a claim to be a Contested Claim (id. at § 1.18(b)), provided that it would become an Allowed Claim if no objection was filed within the objection deadline (id. at § 1.02(b)(ii)).
The parties have argued over whether the counterclaim can serve as an “objection.” For the reasons set forth below, the Court agrees with Viskase that Viskase timely filed an “objection” to Claim No. 598. However, that “objection” is only applicable to that portion of Claim No. 598, $355,477, that exceeds the Allowed Claim. Accordingly, the court will deny Carbide’s motion for payment as to the balance of the claim, to wit, $355,477. That amount is not now due and will await a final order on the objection. See id. at §§ 1.18(b) and 1.02(b)(ii). 15
A counterclaim can serve as a proper objection to a creditor’s claim.
Citicorp North America, Inc. v. Finley (In re Washington Mfg. Co.),
Set-off can also serve as a proper basis for an objection and a proper ground for disallowance of a claim.
In re Bicoastal Corp.,
Furthermore, the word “objection” is not defined in the Bankruptcy Code or in the Federal Rules of Bankruptcy Procedure. In the absence of statutory guidance, the Plan will govern. Unless the meaning, form, or scope of the term “objection” is defined, restricted, or limited in some way by the terms of the Plan itself, the court must apply the general and ordinary meaning ascribed to that term.
In re Outdoor Sports Headquarters, Inc.,
C. Equitable Estoppel
Carbide, relying primarily on
Oneida Motor Freight, Inc. v. United Jersey Bank,
Viskase maintains that the grounds for the imposition of equitable estoppel are not present in this matter. Viskase asserts that (a) the counterclaim is relatively small in size; (b) Carbide had notice of Viskase’s claim against Carbide, even if that notice was not formal; (e) Carbide is not injured by the lack of formal notice; (d) Viskase could not have reorganized as quickly as it did if it were forced to investigate and analyze every potential cause of action prior to confirmation; and (e) Carbide did not rely on the schedule of assets, the disclosure statement, or the Plan as a statement that Viskase did not have a cause of action against Carbide, because Carbide was unimpaired under the Plan, thus precluding any decision or vote by Carbide in reliance on those documents. Although the court does not find all of Vis-kase’s arguments persuasive, the court nevertheless agrees that, under the facts before the court, Viskase is not equitably estopped from bringing its counterclaim and set-off, despite the lack of disclosure, because Carbide did not rely on the disclosure or lack thereof.
The Seventh Circuit has indicated that application of the doctrine of equitable estoppel is particularly appropriate in bankruptcy proceedings.
Citation Cycle Co., Inc. v. Yorke,
The traditional elements of equitable es-toppel are: (1) misrepresentation by the party against whom estoppel is asserted; (2) reasonable reliance on that misrepresentation by the party asserting estoppel; and (3) detriment to the party asserting estoppel. The burden of proof is on the party claiming estoppel.
Kennedy v. United States,
There is ample authority to support the application of the doctrine of equitable estoppel where a debtor fails to disclose a known cause of action
17
and later tries to assert that cause of action against a creditor post-confirmation.
18
In the seminal case of
Oneida,
the Third Circuit applied the doctrine of equitable estoppel to bar a former chapter 11 debtor from pursuing a cause of action for lender liability post-confirmation.
Oneida,
According to the court in Oneida, based on the statutory duties and a general equitable or fiduciary duty of disclosure, a debtor has an
express obligation of candid disclosure. The preparing and filing of a disclosure statement is a critical step in the reorganization of a Chapter 11 debtor.
* * * * * *
The importance of full disclosure is under-laid by the reliance placed upon the disclosure statement by the creditors and the court. Given this reliance we cannot overemphasize the debtor’s obligation to provide sufficient data to satisfy the Code standard of “adequate information.”
Id.
(emphasis supplied). The court relied on
Monroe County
for the proposition that, among other things, a debtor must disclose any litigation likely to arise in a non-bankruptcy setting.
Id.
The court imposed equitable estoppel because,
inter alia,
the creditor’s decisions regarding the stipulations to its lien, the settlement, and its favorable vote on the debtor’s plan would have been impacted and likely altered had the creditor known,
[i]n such circumstances, employment of equitable estoppel is required to preserve the integrity of the earlier proceedings, particularly where ... the creditors have reasonably acted in reliance upon the assumed finality and integrity of those adjudications.
Id. at 418. Although there is much merit to the decision in Oneida, this court finds that decision factually distinguishable, and thus the court declines to follow Oneida in the factual context of this matter. Consequently, the court concludes that Viskase is not equitably estopped from asserting its counterclaim.
The most significant distinction is that the reliance that was present in
Oneida
is not present here. One of the fundamental elements of the doctrine of equitable estoppel is reliance.
See Kennedy,
However, unlike in Oneida, the requisite reliance is not present here, as Carbide did not engage in negotiations with Viskase with a view toward a settlement and Carbide and Viskase did not agree to a stipulation or settlement agreement prior to and in order to secure Carbide’s favorable vote. Because Carbide’s claim was classified in Class 9C with the general unsecured claims of Enviro-dyne’s subsidiaries, its claim is to be paid in full in cash unless otherwise agreed. Plan at §§ 3.11 and 4.04. Carbide was not entitled to vote on the Plan because its claim is not impaired under the Plan. See 11 U.S.C. §§ 1124 and 1126(f). The court finds that Carbide did not actually rely on the accuracy of or the absence of disclosure in the schedules, the disclosure statement, or the Plan because there was no settlement negotiations or agreement and Carbide could not vote on the Plan. Therefore, Oneida is distinguishable from the matter before the court. 19
The facts in this matter are distinguishable from those in
Oneida
for a second reason. In
Oneida,
the theories of lender liability presented issues of fact similar and common to the subject matter of the settlement, as the extent and validity of the liens, like the lender liability issues, arose from the loan agreement.
Oneida,
However, unlike in
Oneida,
there is no such close connection between Carbide’s Claim No. 598 and Viskase’s counterclaim and request for set-off. Claim No. 598 essentially derives from unpaid goods and other merchandise that Carbide sold and delivered to Viskase on open account. In eon-
D. Judicial Estoppel
Carbide asserts that Viskase is barred from pursuing its counterclaim on the basis of the doctrine of judicial estoppel. “Judicial estoppel is a doctrine intended to prevent perversion of the judicial process.”
In re Cassidy,
There is no hard and fast or ready formula for determining the proper circumstances under which judicial estoppel is to be applied.
Levinson v. United States,
First, the later position must be clearly inconsistent with the earlier position. Also, the facts at issue should be the same in both cases. Finally, the party to be estopped must have convinced the first court to adopt its position; a litigant is not forever bound to a losing argument.
Levinson,
Although related to equitable estoppel, judicial estoppel is a separate and distinct doctrine.
Cassidy,
Like other varieties of estoppel, judicial estoppel “does not eliminate a claim or defense, but only prohibits a particular party from asserting it.”
Id.
at 642. As an equitable concept, judicial estoppel is within the sound discretion of the court.
Id.
The court is mindful that “judicial estoppel is strong medicine” because of its potentially harsh effects.
Chaveriat,
The doctrine of judicial estoppel has been applied to prevent a debtor from pursuing a cause of action post-confirmation where the debtor failed to disclose the cause of action in the schedules, disclosure statement, or plan. 21 Carbide, relying on Payless and Louden, contends that Viskase has adopted or taken inconsistent positions in two respects by asserting its counterclaim against Carbide post-confirmation, and thus should be judicially estopped from asserting that counterclaim. First, Carbide argues that, by not disclosing the counterclaim and instead remaining silent in violation of its statutory duty of disclosure, Viskase took the position that it did not have such a cause of action. Thus, Carbide reasons, the present assertion of the counterclaim is inconsistent with that prior position, and Viskase should be judicially estopped from proceeding with the counterclaim. Second, Carbide argues that, by scheduling Carbide’s unsecured claims as undisputed, liquidated, and not contingent, Vis-kase took the position that such claims are undisputed, liquidated, and not contingent. Carbide then reasons that, by filing the counterclaim in objection to those claims, Viskase is disputing the claims, which is inconsistent with the position allegedly adopted through the schedules.
Viskase responds that it did not abuse the judicial process and that the doctrine of judicial estoppel does not apply to this matter. In support of this contention, Viskase asserts that (a) Viskase lacked the opportunity to deal with its claim against Carbide prior to the claims objection bar date; (b) Viskase did not make any representations to the court as to Carbide’s claim or the counterclaim prior to the objection; (c) Viskase reserved the right to timely file objections to proofs of claims, and Viskase merely exercised this right; (d) Viskase was not required to disclose all potential claims against creditors because of the reservation of the right to object; (e) Carbide had notice of the substance of the counterclaim; and (f) the establishment of a claims objection bar date implicitly disclosed the possibility of objections. For the reasons set forth below, the court concludes that the doctrine of judicial estop-pel does not bar Viskase from pursuing its counterclaim and request for set-off.
As discussed above, in order to apply the doctrine of judicial estoppel, the party to be estopped must have intentionally taken a subsequent position inconsistent with a prior position.
See Cassidy,
Unlike in Oneida, Viskase’s counterclaim does not assert a position contrary to the listing of the claim as undisputed. The counterclaim relates to reimbursement for environmental pollution cleanup expenses under an indemnity clause in the Sales Agreement and pursuant to federal law. In contrast, Carbide’s claim is for goods sold and delivered on open account, and has nothing to do with the Sales Agreement or the environmental issues. The assertion of Viskase’s counterclaim does not contradict the assertion of Carbide’s claim because the two are wholly separate and distinct. Here, it is not necessary to disprove one in order to prove the other, as both the claim and the counterclaim can be proved independent of each other. Therefore, under the facts and circumstances of this matter, Viskase has not assumed a position clearly inconsistent with the position assumed in the schedules by asserting the counterclaim.
Had Viskase affirmatively stated to this court, through a hearing, a pleading, or even the Plan, that it did not have a cause of action against Carbide or that it did not have any potential cause of action, thereby implying that it had investigated such things to no avail, and then brought this counterclaim later, this court might be inclined to invoke judicial estoppel to prevent such a maneuver.
See Air One, Inc. v. Wing On Bank, Ltd. (In re Air One, Inc.),
E. Set-off Under State Law
Carbide asserts that 11 U.S.C. § 558 applies to set-off by a debtor, that state law applies thereto, and that, under Illinois law, Viskase is not entitled to set-off because the debts are not mutual, mature, and liquidated. 23 Although Viskase agrees with the first two contentions, Viskase strongly disagrees with the third, as Viskase maintains that the debts are mutual, mature, and liquidated. The court need not resolve this issue at this time. To do so would be premature in that the merits of the counterclaim have not yet been adjudicated. This issue will be more properly before the court once the merits have been addressed.
VI. CONCLUSION
For the reasons set forth above, the court will, by separate order, (i) deny Viskase’s motion to strike; (ii) deny Viskase’s alternative motion for oral argument; (iii) deny Carbide’s motion for judgment on the pleadings; and (iv) grant in part Carbide’s motion for payment to the extent of $494,421.95 and deny Carbide’s motion for payment as to $355,477, which represents the balance of Carbide’s Claim No. 598.
Notes
.Viskase has also filed a "Motion to Strike Certain Portions of Union Carbide Corporation's Reply Brief, or, in the Alternative, to Schedule Oral Argument.” The court denies this motion. First, the portions sought to be stricken relate to matters upon which the court has ruled in favor of Viskase and the motion is therefore moot based on the court's disposition of Carbide's motion. Second, the court finds there is little or no merit to the allegations contained in Viskase's motion to strike. Accordingly, no discussion of the motion to strike is necessary and that motion is denied. Carbide’s alternative motion for oral argument is also denied for similar reasons.
. Union Carbide Corporation merged into Union Carbide Chemicals and Plastics Company, Inc. in 1994. The latter filed Claim No. 598. As a result of the merger, the new entity, Union Carbide Corporation, is deemed to be the holder of Claim No. 598.
. This amount is comprised of several individually noted unsecured obligations of Viskase’s to entities related to or subsidiaries of Carbide. Both parties have treated these individual obligations as one claim and for purposes of this opinion, the court will do so as well.
. Viskase objected to Carbide's claim on the basis of set-off. Whether or not the counterclaim and request for set-off constitute an "objection” is the subject of considerable disagreement. The court resolves the issue in Part V, Subpart B.
. Essentially, Viskase seeks to "strike a balance,” in that if Viskase is successful in its motion, then the competing amounts would virtually cancel or nullify one another.
. The Sales Agreement was dated January 31, 1986. By its caption, Union Carbide Corporation, Union Carbide Canada, Ltd, and Union Carbide Films Packaging, Inc. were the sellers, while Viskase and its affiliates were the buyers. Envirodyne was listed as a shareholder.
. CERCLA is the acronym for the federal environmental legislation otherwise known as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by, inter alia, the Superfimd Amendments and Reauthorization Act of 1986. See 42 U.S.C §§ 9601-9675.
. The Canadian Litigation relates to environmental pollution problems at a plant in Canada which Carbide sold to Viskase trader the Sales Agreement.
. Federal Rule of Civil Procedure 12(c), as incorporated in Rule 7012 of the Federal Rules of Bankruptcy Procedure, provides:
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
FED.R.CIV.P. 12(c); FED.R.BANKR.P. 7012.
. The Debtors' Plan has been confirmed.
See In re Envirodyne Indus., Inc.,
. § 1.18(b) of the Plan provides:
Contested, when used with respect to a Claim, means a Claim against the Debtors ... (b) that is listed in the Debtors' Schedules as undisputed, liquidated, and not contingent and as to which a proof of claim has been filed with the Bankruptcy Court, to the extent the proof of claim exceeds the scheduled amount; .... Plan at § 1.18(b). This section is applicable here. First, the individual claims that comprise Carbide's total claim against Viskase are listed in Viskase’s schedule of liabilities as undisputed, liquidated, and not contingent. Second, Carbide did file a proof of claim as to that scheduled claim. See Claim No. 598. Finally, the proof of claim exceeds the scheduled amount.
. Of course, to the extent the court sustains the objection, the claim is disallowed.
. This section applies for the reasons set forth above. See note 11 supra.
. Where a proof of claim has been filed as to a Contested Claim and a timely objection thereto has not been filed, that proof of claim is an Allowed Claim, except if that claim "is to be determined in a forum other than the Bankruptcy Court, in which case such Claim shall not become allowed until determined by Final Order of such other forum and allowed by Final Order of the Bankruptcy Court...." Plan at § 1.02(b)(1). This section does not apply because, as will be seen, Viskase did timely file an objection to Carbide’s Claim No. 598.
. In addition, this is not the proper procedural posture for the court to determine the existence or extent of Carbide’s alleged lien or administrative expense priority. The matter before the court is a motion for judgment on the pleadings and a motion for payment. Neither of these motions require the court to characterize the claim in order to decide the motions. As, the characterization issue is not before the court, it will not be discussed. The court has only determined that $355,477 is not now due. That amount may or may not be subject to set-off by virtue of Viskase's counterclaim, but that will not be known until the completion of future proceedings.
. Because the counterclaim serves as a proper "objection" to Carbide's claim to the extent of the balance of $355,477, this is the result mandated by the Plan. See Plan at §§ 1.02(b)(ii) and 1.18(b).
. By "known cause of action,” the court is referring to a situation where the debtor knows "of all of the facts that were pertinent to its current lawsuit when it filed bankruptcy ... [and no] new information was acquired post-filing....” or where the “facts underlying the cause of action were known to Debtor ... before the plan was confirmed.”
Hoffman v. First Nat'l Bank of Akron (In re Hoffman),
.
See, e.g., Hay v. First Interstate Bank of Kalispell,
. Other cases may also be distinguished based on the reliance involved where there is a pre-confirmation settlement and stipulation between the debtor and a creditor, yet the debtor asserts an undisclosed cause of action against that creditor post-confirmation.
See, e.g., Hoffman,
. Other courts have found that intentional misconduct is a necessary element to the application of judicial estoppel.
See, e.g., United States v. McCaskey,
.
See, e.g., Payless Wholesale Distribs., Inc. v. Alberto Culver (P.R.), Inc.,
.
But cf. Louden,
. Assuming without deciding that state law applies, Illinois law is the applicable law. Neither party has raised a conflict of laws or choice of law issue or objection. Moreover, wherever the parties do refer to state law, it is the substantive law of Illinois. In the absence of a choice of law objection, the Court will apply the substantive law of Illinois to those issues governed by non-bankruptcy law.
See Wood v. Mid-Valley, Inc.,