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Ball v. Franklin Williamson Properties, Inc.

United States District Court, S.D. Illinois

June 27, 2014

DENNIES ANDREW BALL, Appellant,
v.
FRANKLIN WILLIAMSON PROPERTIES, INC. and CREDIT UNION WEST, Appellees. Consolidated with No. 13-01024-DRH

OPINION

DAVID R. HERNDON, District Judge.

I. Introduction and Background

This matter involves two separate bankruptcy appeals that have been consolidated, 13-01023-DRH and 13-01024-DRH.[1] First, debtor/appellant Dennis Ball appeals from Chief Bankruptcy Judge Laura Grandy's September 9, 2013 Order finding: "There is no stay in this case, which is Debtor's third chapter 13 that has been filed within the last 8 months (and the fourth bankruptcy that has been pending within the last year)." See In re Ball, 13-40863-lkg (September 17, 2013 written order entered). The Order also authorized the creditors to exercise their rights as a secured creditor under state law. Id. Second, Ball appeals from Bankruptcy Judge Kenneth J. Meyers' August 30, 2013 Order finding:

"Debtor has failed to provide sufficient evidence to justify setting aside this Court's Order of June 26, 2013 granting the motion to annul stay. While Debtor insists that he did not receive notice of the June 26th hearing, the record in this case indicates otherwise.
The Court further finds that the filing of this bankruptcy petition was part of a scheme to delay and hinder Franklin-Williamson Properties, Inc., as the filing is one of multiple bankruptcy filings by the Debtor affecting the above described real estate...."

See In re Ball, 13-40016-lkg (Doc. 128)(footnotes omitted).

Finding no abuse of discretion in either order, the Court affirms both of the bankruptcy court's orders.

II. Facts

The Court adopts the relevant facts as set forth by the bankruptcy court. See Fed. R. Bankr.P. 8013 ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous...."). The facts below were discussed by the bankruptcy court and are not disputed by the parties. See In re Ball, 13-40863-lkg.

During 2013, Ball had four "pending" bankruptcy cases. Ball's first case pending was his Arizona bankruptcy bearing case number 2:11-bk-12248 GBN filed in the United States Bankruptcy Court for the District of Arizona. On May 30, 2013, Ball received a Discharge in the Arizona Bankruptcy and the case was closed. Ball's second bankruptcy case pending was an Illinois Chapter 13 proceeding filed in United States Bankruptcy Court for the Southern District of Illinois bearing case number 13-40016. This case was dismissed on March 4, 2013. Ball's third bankruptcy case pending was another Illinois Chapter 13 proceeding filed in the United States Bankruptcy Court for the Southern District of Illinois bearing case number 13-40561. This case was dismissed by the bankruptcy court on May 20, 2013. Ball's fourth bankruptcy case pending was filed in the United States Bankruptcy Court for the Southern District of Illinois bearing case number 13-40863. This case was filed on August 7, 2013.

On August 30, 2013, Bankruptcy Judge Meyers entered an order finding in part:

"Debtor has failed to provide sufficient evidence to justify setting aside this Court's Order of June 26, 2013 granting the motion to annul stay. While Debtor insists that he did not receive notice of the June 26th hearing, the record in this case indicates otherwise.
The Court further finds that the filing of this bankruptcy petition was part of a scheme to delay and hinder Franklin-Williamson Properties, Inc., as the filing is one of multiple bankruptcy filings by the Debtor affecting the above described real estate...."

See In re Ball, 13-40016-lkg (Doc. 128)(footnotes omitted). Thereafter, Chief Bankruptcy Judge Grandy entered an order finding in part that: "There is no stay in this case, which is Debtor's third chapter 13 that has been filed within the last 8 months (and the fourth bankruptcy that has been pending within the last year)." See In re Ball, 13-40863-lkg (September 17, 2013 written order). The order also authorized ...


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