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In Re v. Mary K. Mackanin

March 30, 2012

IN RE: MARY K. MACKANIN,
DEBTOR
VILMA HERNANDEZ, AS MOTHER AND NEXT FRIEND OF CARLOS
JOVAL, A MINOR,
APPELLANT,
v.
MARY K. MACKANIN, APPELLEE.



Appeal from U.S.B.C. No. 09-13314

The opinion of the court was delivered by: Judge Ronald A. Guzman

MEMORANDUM OPINION AND ORDER

Vilma Hernandez appeals Bankruptcy Judge Squires' April 15, 2011 order denying her motion to reopen Mary K. MacKanin's ("Debtor's") bankruptcy case to modify the discharge injunction. For the reasons provided below, the Court affirms the bankruptcy court's order.

Facts

On July 24, 2007, Hernandez gave birth at Northwest Community Hospital and was cared for by, among others, Debtor, a certified nurse midwife who was employed by Ob-Gyne Associates. (Br. Pl.-Appellant 6.) Hernandez's baby, Carlos Joval, was born with severe and permanent brain damage. (Id. 5-6.)

On October 18, 2007, Hernandez filed a medical malpractice suit against the hospital, Ob--Gyne and some of the medical professionals who cared for her during labor and delivery, but did not name Debtor as a defendant. (Id. 6-7; see Mot. Extend Time File Compl. Objecting Discharge Debtor, Ex. B, Compl., Hernandez v. Nw. Cmty. Hosp., No. 2007 L 11661 (Cir. Ct. Cook Cnty.), Dkt. No. 16.)

In October 2008, Debtor's employment with Ob-Gyne ended. (Br. Def.-Appellee 2.) Because its insurance policy no longer covered Debtor, Ob-Gyne bought a new tail insurance policy to cover any and all potential claims arising from Debtor's employment with Ob-Gyne. (Id. 2-3.)

On April 15, 2009, Debtor filed for Chapter 7 bankruptcy relief. (Br. Pl.-Appellant 7.) Debtor did not list Hernandez in the schedule of creditors. (Id.)

On July 28, 2009, after learning about the malpractice suit, Debtor told Hernandez's counsel about the bankruptcy. (Id.)

On August 7, and 18, 2009, respectively, Hernandez asked the bankruptcy court for an extension of time to file a complaint objecting to discharge and to lift the automatic stay so she could add Debtor as a defendant to the malpractice suit. (Id. 7-8.) On August 21, 2009, Judge Squires granted both motions and gave Hernandez until October 9, 2009 to file a complaint objecting to discharge. (In re MacKanin, 09 B 13314, Aug. 19, 2009 Orders, Dkt. Nos. 21-22.)

Hernandez did not, however, file a complaint, or seek an extension of time do so, by that date. (Br. Pl.-Appellant 9.) Consequently, on October 14, 2009, Judge Squires discharged the Debtor. (Id.) On October 19, 2009, he dismissed the case. (Id. 10.)

After the discharge and a period of unemployment, Debtor obtained a license and credentials in Texas and was hired by a Texas university to train and supervise medical students and interns in labor and delivery. (Br. Def.-Appellee 4-5.) Her position is funded by grants. (Id.)

On September 24, 2010, Hernandez named Debtor as a defendant in the malpractice suit and "demand[ed] judgment against the [Debtor], individually and as agent and servant of OB-GYNE Associates, . . . in an amount in excess of $50,000.00." (See Motion Reopen, Ex. D, Am. Compl., Count IV ¶ 10, Dkt. No. 26-4.) Debtor moved to dismiss, arguing that the bankruptcy discharge order barred Hernandez's claims. (Br. Pl.-Appellant 14.) The state court agreed and dismissed Hernandez's claims against Debtor. (Id. 14-17.)

On February 28, 2011, Hernandez asked the bankruptcy court to reopen the case and modify the discharge order. (Br. Def.-Appellee 5.) The ...


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