Saturday, May 16, 2009

Does the 30-day bankruptcy stay terminate in its entirety?

The 2005 Amendments to the bankruptcy code included some changes to application of the automatic stay in serial bankruptcy cases. Under 11 U.S.C. §362(c)(3), a Debtor who files a case within one year of the dismissal of a prior case only gets the stay for 30 days, unless extended on timely motion. Under 11 U.S.C §362(c)(4), a Debtor who files a case within one year of the dismissal of two or more prior cases gets no stay at all, unless imposed on timely motion. If the stay is not extended or imposed, a party in interest can file a motion to confirm that no stay is in effect.

Seems simple enough, but alas, it isn’t. Some Courts have concluded that the inclusion of the phrase "with respect to the debtor" in §362(c)(3) and omission of that phrase from §362(c)(4) means that the 30 day stay terminates only as to the debtor and the debtor’s property, but does not terminate with respect to property of the bankruptcy estate. These Courts have held that if the 30 day stay is not extended on timely motion, Creditors can take action against the Debtor by making collection calls and sending collection letters, but can not take action against property of the bankruptcy estate by repossessing or foreclosing their collateral.

Other Courts have concluded that the phrase "with respect to the debtor" in §362(c)(3)and omission of that phrase from §362(c)(4) means that the 30-day stay applies to one spouse in a joint case, where one spouse had a prior bankruptcy case dismissed within a year of the filing of the current case. These Courts have criticized opposing views as contrary to legislative intent, and held that unless extended on timely motion, the 30 day stay terminates in its entirety.

Recently, Bankruptcy Judge Wedoff considered the issue and held that the 30 day stay terminates in its entirety. In Re Daniels, 2009 Bankr. LEXIS 919. Previously, Judge Schmetterer came to the same conclusion. In Re Curry, 324 B.R. 394, 2007 Bankr. Lexis 474.

Welcome Pete Bastianen!

The Northern Law Blog is pleased to announce the addition of another Guest Contributor. Pete Bastianen is employed at Codilis & Associates, P.C. in Burr Ridge. He concentrates his practice in the areas of foreclosure and bankruptcy. We look forward to hearing more from Pete in these areas.

Welcome aboard Pete!

Big Brother is watching...and listening

This interesting example of the utmost invasion of privacy is out of London. A 48-year-old woman was apparently arrested for...ahem..."execessively noisy sex". If you desire, you can find the entire article at http://www.suntimes.com/news/otherviews/1577146,CST-EDT-open16.article.

I had no idea that Great Britain had become such a part of the public's private life. I found the fact that they have 5 million closed-circuit television cameras to monitor people's outside behavior a bit troubling. And now, they have decided to move their way into the public's bedroom. The offending woman was previously banned from having excessively noisy sex in all of England because someone had previously reported her. According to the article, a neighbor can make a complaint that someone is disturbing the peace and ultimately get an Anti-Social Behavior Order issued against the offending party. This is what happened to our 48-year-old vocalist. Perhaps we should consider double sound-proofing our walls.

Thursday, May 14, 2009

The Drew Peterson Rule

Will County State's Attorney James Glasgow received a favor from outgoing Governor Rod Blagojevich when the former governor signed into law the controversial "Drew Peterson" exception to Illinois' hearsay law.

The relevant portion of the "Hearsay exception for intentional murder of a witness" is set forth below:

"(a) A statement is not rendered inadmissible by the hearsay rule if it is offered against a party that has killed the declarant intending to procure the unavailability of the declarant as a witness in a criminal or civil proceeding.

(b) While intent to procure the unavailability of the witness is a necessary element for the introduction of the statements, it need not be the sole motivation behind the murder which procured the unavailability of the declarant as a witness."

So, in order to use Ms. Savio's statements against him, the State must prove that Drew Peterson killed Ms. Savio "intending to procure the unavailability of the declarant as a witness in a criminal or civil proceeding." That is legalese for he killed her "to prevent her from testifying against him."

Surely the State is not going to say that he killed her to prevent her from testifying at the upcoming murder trial. That is ridiculous. So, they must plan to argue that he killed her to prevent her from testifying against him in their divorce case. I recall reading that she was found dead in the bathtub "shortly before their divorce was finalized." Nothing that I read had any more detail than that. It is unclear whether there were any hearings scheduled in their divorce case at which Ms. Savio was expected to testify. Of course, there is always the possibility that she could testify at the prove-up, so I guess until the divorce was finalized there was always the possibility that she would testify at least once more.

So, unless this law is declared unconstitutional before trial, it is likely that Ms. Savio will be allowed to testify from "beyond the grave." Still, I have my doubts as to the strength of the state's case. It will really be embarrassing if they go to all this trouble to amend the state's criminal code to prosecute one guy, and still lose.

Hearsay exception for intentional murder of a witness. 725 ILCS 5/115-10.6.

Wednesday, May 13, 2009

Mechanics Lien Cheat Sheet

GENERAL CONTRACTOR:

Lien: A verified claim for mechanics lien must be recorded within 4 months of last providing work.

Foreclosure: An action to foreclose a mechanics lien must be filed (and a lis pendens recorded) within two years of last providing work, or within 30 days after a demand to commence the suit pursuant to 770 ILCS 60/34.

SUBCONTRACTOR/MATERIAL SUPPLIER:

Homeowners Notice: Subcontractors supplying services or materials to a single family, owner-occupied residence must notify the occupants that it is supplying services or materials within 60 days from the date of first supplying services or materials.

Notice of Claim: Subcontractors must serve a written notice of the claim on the owner and the lender within 90 days of last performing work or delivering materials.

Lien: A verified claim for mechanics lien must be recorded 4 months of last performing work or delivering materials.

Foreclosure: An action to foreclose a mechanics lien must be filed (and a lis pendens recorded) within two years of last providing work, or within 30 days after a demand to commence the suit pursuant to 770 ILCS 60/34.

Sunday, May 10, 2009

Ordinance Violation Does Not Equal Negligence

Husband and wife are in their early sixties. They live on the rented top floor of a two-flat in Chicago. Wife notices that husband has been missing from the house for some time. She calls out his name. She hears him respond from the alley behind the house. He yells back that he fell over the railing of their back porch. He then loses consciousness and dies. An investigation reveals that the back porch and railing are in violation of several city ordinances. Wife files a wrongful death lawsuit against the landlord.

Landlord moves for summary judgment alleging that plaintiff cannot prove that the ordinance violations proximately caused her husband's death. Landlord points out that there were no witnesses to the fall. Even the decedent's statement that he "fell over the railing" does not tell why he fell over the railing. He could have been climbing on the railing at the time and been blown off by the wind, or knocked off by a bird, or pushed off by his wife, etc.

The trial court and the appellate court both agree. Liability cannot be predicated on conjecture, rather proximate cause is established when there is reasonable certainty that the defendant's acts or omissions caused the injury. Violations of an ordinance or a failure to comply with the building code, by themselves without evidence that the violations caused the injury, do not establish proximate cause.

Strutz v. Vicere, 1-07-2564, decided by the 1st District on April 29, 2009. Not yet released for publication.

Friday, May 1, 2009

How NOT to avoid jury duty.

Although it worked for Erik Slye of Belgrade, Montana (he was excused from jury duty), I would not recommend this course of action for anyone else trying to avoid his or her civic duty.

See Affidavit of Erik Slye here.