Wednesday, August 28, 2013

I want my nickel. (Fed. R. Bankr. P. 3010)

I represent a client who was owed a significant amount of money, about $150,000.  We filed suit and shortly thereafter the defendant filed Ch. 7 bankruptcy.  The trustee discovered that the defendant owed a piece of property without a mortgage. The trustee hired a realtor, sold the property, and distributed nearly $200,000 pro rata among all of the creditors.  My client got a nice chunk of that money.

Then, after that money was distributed, the trustee filed additional paperwork with the bankruptcy court indicating that an additional $0.49 remained in his bank account due to an accounting error.  That money should have been distributed to the creditors.  The final paragraph of the trustee's report indicated that supplemental distribution checks were printed for the creditors but were made payable to the U.S. Bankruptcy Court pursuant to FRBP 3010.  The attachment listed my client as being owed $0.15 of that money.  

I had to look up Rule 3010, which provides as follows:
"(a) Chapter 7 Cases. In a chapter 7 case no dividend in an amount less than $5 shall be distributed by the trustee to any creditor unless authorized by local rule or order of the court. Any such dividend not distributed to a creditor shall be treated in the same manner as unclaimed funds as provided in § 347 of the Code."
Section 347 talks about unclaimed property.  That section sets forth certain timelines, after which any unclaimed money is "paid into the court."  That makes sense.  It also makes sense that trustees should not have to spend their own time and money dealing with amounts less than $5.00.

But, I was unaware of the rule.  So, I looked it up, did some reading, reviewed the trustee's supplemental report, emailed my client, spent about $200.00 in billable time, and eventually determined that my client wasn't going to get its $0.15; and, therefore, I wasn't going to get my nickel. 

Wednesday, August 14, 2013

SmithAmundsen LLC is Hiring.

SmithAmundsen LLC seeks an associate attorney to join its busy Labor and Employment team in the St. Charles office. Must have 4-6 years of experience. A background in HR is preferred, but not required. Must have experience in at least one of the following areas: Labor (negotiations and arbitrations), wage & hour claims, or discrimination. Ideal candidate will be highly-motivated and can hit the ground running. Excellent writing skills are required. 

Please send resume, writing sample, and salary requirements to:

Saturday, August 3, 2013

Dave's not here, man.

The federal court for the Northern District of Illinois recently held that the smell of marijuana does not justify a warrantless search of someone's home.  The case involved a woman who was wanted for questioning by the police.  They went to her house but her husband would not let them in without a warrant.  But the police smelled marijuana so they barged in without a warrant and arrested the man and his wife for resisting arrest and possession of marijuana.

The couple filed a federal civil rights lawsuit against the two arresting officers alleging that they falsely arrested and beat the couple in violation of the Fourth Amendment.  The police officers moved for summary judgment under the theory that the odor of marijuana created exigent circumstances that allowed them to proceed without a warrant.  

The court applied an objective test that asks whether a reasonable police officer in the defendants' position would have believed that an emergency existed which justified entering the residence without getting a warrant.  The court explained that exigent circumstances only arise in true emergencies where there is a "compelling need for official action and no time to secure a warrant."  

In this case, all the officers had was the odor of marijuana.  The court acknowledged that possession of marijuana is a crime in Illinois, but stated that the mere smell of marijuana did not suggest a significant crime was occurring.  The court found that the smell of burnt marijuana provides probable cause that a crime had been committed, but is insufficient to rise to the emergency level justify a warrantless entry into somebody's house.  The court found that possession of marijuana was a misdemeanor and that the exigent circumstances doctrine should be restricted to cases involving "serious crimes."  

So, the police officers' motion for summary judgment was denied.  The case will proceed to trial on the false arrest claims, or they'll settle.  Two pot-smoking, cop-fighting ne'er-do-wells do not exactly make the most sympathetic plaintiffs ever, but it's definitely an interesting case.  I wonder how much it's worth?  Any guesses?

Thursday, August 1, 2013

Supreme Court Revisits the Illinois "Mailbox Rule"

You may have heard of the “mailbox rule” at some point in your life. Defined by Illinois common law, the mailbox rule simply refers to when a document or pleading is considered “filed” in civil actions.  Under certain circumstances, such as when filing discovery pleadings, notices of appeal, and appellate briefs, a document is considered filed as of the day on which it was put in the mail.       

Grusceczka v. Commission, 2013 IL 114212 involved analysis of the mailbox rule in connection with the filing of an appeal of a worker’s compensation decision to the circuit court.  In Grusceczka, Petitioner’s attorney received the adverse decision from the Commission on April 20, 2009.  Under the Worker’s Compensation Act, a party has 20 days from the date of receipt of the Commission’s decision to file an action for circuit court review.  820 ILCS 305/19(f)(1).  Petitioner’s attorney mailed his petition for circuit court review and accompanying documents on May 4, 2009, well within the 20-day deadline.  However, the circuit clerk’s office did not file stamp those documents until May 14, 2009, outside of the deadline.   

While the circuit court ruled on the merits of the case (and still denied benefits), the Second District Appellate Court ruled that the circuit court never had jurisdiction to hear the case based upon its determination that the petition for review was untimely filed.  The Supreme Court reversed and held that the mailbox rule applied to the filing of a petition to review to the circuit court of a decision of the Commission.  Important to its analysis, the Court noted that the legislature had considered the matter of restricting the mailbox rule in a variety of other situations and only chose to preclude it as to the Election Code.  Additionally, while noting that the mailbox rule does not apply to the filing of a new civil action, the Court held that a petition to review was different in that important factors in the filing of a new complaint, such as the statute of limitations and notice to the other party, were simply not present with respect to circuit court review of a worker’s compensation decision.

Those intending to take full benefit of the mailbox rule beware.  As indicated above the mailbox rule does not apply to a new complaint being filed.  If your statute of limitations is on the day you mail the new complaint to the court to be filed, it will be filed AFTER the statute of limitations and your case will be barred. 

So the mailbox rule lives on…at least so long as we are still using mail and Cliff Clavin is delivering your mail.