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In re Russ James & Associates, Case No. 97-25972, Debtor v. River Park Meadows Ltd. P'ship, et al., Adv. No. 97-2474 and Adv. No. 97-2474 supplement. (March 1999) -- Judge McGarity

Chapter 11 debtor commenced an adversary proceeding for breach of construction contracts in connection with five condominium projects. Each party to each contract alleged the other parties breached first, most and worst; although all parties breached at some point. On the Bouraxis properties, the debtor breached by failing to pay subcontractors; Boraxis breached by allowing the insurance to lapse on a project and by terminating the debtor on all projects after the latter exercised its right to demand assurance of payment. On the Zignego projects, the debtor breached by failing to pay subcontractors and not completing projects timely;  Zignego breached by bypassing the debtor and paying the subcontractors directly. Ultimately, the court found that Zignego had allowed claims against the debtor and the debtor was entitled to a judgment against the Bouraxis defendants.

In re Charles R. Cole, Case No. 94-27002 (February 1999) -- Judge McGarity

Prepetition, the uninsured chapter 13 debtor was involved in a collision involving multiple vehicles.  While litigation was pending in state court to determine damages and liabilities, an injured party and his insurance company filed claims against the debtor's estate.  The injured party settled with a third party's insurer for $250,000, but preserved his rights against its uninsured motorist insurance carrier and the debtor. The claim against the injured party's insurer went to arbitration wherein it was determined that total damages were only $131,000.  While the claimant asserted he was entitled to assert his claim against the estate, the debtor argued the claimant was overpaid and payments made during the plan should be returned.  The bankruptcy court was unable to quantify the claim without knowing the percentage of the debtor's negligence and matters were set for further proceedings.

In re Frank Pio Crivello, Case No. 92-27252 (December 1998) -- Judge McGarity

The matter was remanded from the Seventh Circuit Court of Appeals. Upon the hearing for final compensation, the bankruptcy court had revoked the employment order for chapter 7 debtor's counsel and denied compensation in its entirety, finding that counsel was not a disinterested person and that the firm willfully failed to disclose critical facts and connections with the debtor. After appeals, the case was remanded for a new hearing on whether counsel was entitled to any compensation under sec. 328(c). The bankruptcy court concluded the original ruling revoking the appointment of counsel was correct and counsel was not entitled to any fees.

In re Charlet M. Harmon, Case No. 96-20834 (July 1998) -- Judge McGarity

Chapter 13 debtor filed a motion for contempt against a creditor for violating the permanent injunction under sec. 524(a)(2) by continuing collection activities with respect to a prepetition discharged debt. The creditor took efforts to recover its collateral post-discharge when it believed it had retained a valid lien in the debtor's vehicle. The court denied the motion because the creditor did not have actual knowledge of the bankruptcy in order to file a proof of claim. The other unsecured creditors received 100% of their filed claims, but this creditor did not have a similar opportunity. Therefore, the lien survived the discharge and the unsecured claim was not discharged.

In re Milwaukee Engraving Co., Inc., Case No. 98-21027 Published: In re Milwaukee Engraving Co., Inc., 230 B.R. 370 (June 1998) -- Judge McGarity

After its application for employment was denied on the ground that it was disinterested, counsel filed a motion for compensation for services it provided to the chapter 11 debtor before its application was denied. The bankruptcy court held that services provided by counsel could be compensated as necessary costs of preserving the estate.

In re J H Collectibles, Inc., Case No. 96-28214 (May 1998) -- Judge McGarity

The U.S. Trustee objected to counsel for the chapter 11 official committee of unsecured creditors' application for an order approving a compromise and settlement of its amended claim. The claim was for post-confirmation fees totaling $205,607, incurred in finalizing a settlement, preparing its final fee application, defending its final fee application, and for other "supplemental administrative services." After objections to the claim were filed, the banks and post-confirmation committee agreed to settle the matter with the unsecured creditors committee counsel by allowing an administrative claim in the amount of $36,800. The court approved the settlement, finding the integrity of the negotiation process had not been compromised and all of the parties had been effectively represented.

In re Richard & Kay Rieger, Case No. 96-22013, Gerald Niedert v. Richard Rieger, Adversary No. 96-2440 (February 1998) -- Judge McGarity

Neighbor brought an adversary proceeding against the chapter 7 debtor-property owner, seeking determinations of liability and nondischargeability with respect to potential obligations arising from the debtor's conduct in a state court property dispute. The bankruptcy court dismissed the complaint.  Under Wisconsin law, the debtor was entitled to absolute witness immunity for statements he made in an affidavit submitted in a third-party's state court against the neighbor seeking to enjoin the neighbor from building a two-story home.  There was no exception to the discharge, notwithstanding the debtor's willful and malicious harm to the neighbor's interest and the substantial damage that resulted.

In re Denise Harrison, Case No. 96-28304 (January 1998) -- Judge McGarity

Chapter 7 debtor filed a motion for contempt against credit card company for violating the permanent injunction under sec. 524(a)(2) by continuing with collection activities relating to a prepetition debt.  The creditor contended it was seeking to collect a postpetition obligation. The debtor had filed her petition on October 9th at 9:57 am. Also on October 9th, the debtor deposited a $750 cash advance check from the creditor at her bank. The check was honored October 11th.  The court determined the transfer occurred postpetition, making the obligation postpetition, as well.  Because the creditor did not violate the discharge injunction, the debtor's motion for contempt was denied.

In re J H Collectibles, Inc., Case No. 96-28214 (December 1997) -- Judge McGarity

Counsel for the chapter 11 official committee of unsecured creditors filed its final fee application in the total amount of $840,119.24, a portion of which had been approved on an interim basis. A trial was held on the creditors' and U.S. Trustee's objections.  The court determined that the fees requested for committee meetings and relations was bordering on the ridiculous and reduced the amount requested by 50%. Second, the fees requested for work done on the plan and disclosure statement was reduced by 40% due to the abrasiveness of committee counsel and its unwillingness to negotiate terms. Third, the fees requested for work done on cash collateral issues was reduced by 20% as the court felt the amount requested was excessive. Fourth, the fees requested in connection with the sale and sale procedures was reduced by 20% as there were more efficient ways to have reached the end result.  Finally, the court reduced counsel's blended rate on the remaining fees by 15% to put it in line with the blended rate of debtor's counsel.  After the aforementioned reductions, the court awarded committee counsel final fees and costs in the amount of $641,832.22.

In re Isaac Wilson, Case No. 96-29993, Gaile Biggers v. Debtor, Adversary No. 97-2094 Published: In re Wilson, 216 B.R. 258 (November 1997) -- Judge McGarity

Chapter 7 debtor's ex-employee brought an adversary proceeding to except a debt from discharge as one for the debtor's "willful and malicious injury" to her person.  On the ex-employee's motion for summary judgment based on the preclusive effect of a state agency action, the court held that the mere fact that the debtor was not represented by an attorney in the administrative proceedings before the Equal Rights Division of the Wisconsin Department of Industry, Labor and Human Relations did not prevent the bankruptcy court from giving preclusive effect the final agency decision that the debtor had sexually harassed his former employee. The agency action collaterally estopped the debtor from disputing the "willful and malicious" nature of his acts, for debt dischargeability purposes.

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