Brandt, Jr v. Pentech Financial Services, Inc

Filing 12

MEMORANDUM OPINION. The motions to withdraw the bankruptcy reference, motions for leave to file interlocutory appeals, requests for certification, and motions to vacate orders are denied without prejudice. Signed by the Honorable Samuel Der-Yeghiayan. Civil case terminated. Mailed notices.(rp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Suntrust Leasing Corporation

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
IBM Credit, LLC

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)

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Plainscapital Leasing, LLC

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Plainscapital Leasing, LLC

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
People’s Capital and Leasing Corp.

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No. 14 C 744

No. 14 C 871

No. 14 C 965

No. 14 C 966

No. 14 C 978

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
The Cit Group/Equipment Financing, Inc.

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v
Pentech Financial Services, Inc.

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
TD Banknorth Leasing Corp.

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)

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
KLC Financial, Inc.

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)

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
American Bank FSB

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)

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
IBM Credit, LLC

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)

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No. 14 C 980

No. 14 C 988

No. 14 C 989

No. 14 C 992

No. 14 C 993

No. 14 C 994

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
US Bancorp Inc.

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)

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
KLC Financial, Inc.

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)
)
)

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Pentech Financial Services, Inc.

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)
)
)
)

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
American Bank FSB

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)
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)

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
The Cit Group/Equipment Financing, Inc.

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)
)
)
)

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
People’s Capital and Leasing Corp.

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)
)
)
)

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No. 14 C 1025

No. 14 C 1065

No. 14 C 1083

No. 14 C 1087

No. 14 C 1091

No. 14 C 1092

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Leasing One Corporation

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
ICON Ear, LLC, ICON Ear II, LLC

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Ameristar Casino East Chicago, LLC

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Dana Malone

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Robert Langford

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Cory Doran

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No. 14 C 1093

No. 14 C 2192

No. 14 C 2260

No. 14 C 2261

No. 14 C 2263

No. 14 C 2264

William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Charter Airlines, LLC

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Shirley Drucker

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Richard Drucker

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Katie Malone

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William A. Brandt, Jr., solely in his
capacity as Plan Administrator for
Equipment Acquisition Resources, Inc.
v.
Rohr-Alpha, Inc.

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No. 14 C 2265

No. 14 C 2266

No. 14 C 2267

No. 14 C 2268

No. 14 C 2353

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on the parties’ motions to withdraw the
bankruptcy reference, motions for leave to file interlocutory appeals, requests for
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certification, and motions to vacate orders. For the reasons stated below, the motions
to withdraw the bankruptcy reference, motions for leave to file interlocutory appeals,

requests for certification, and the motions to vacate orders are denied without
prejudice.

BACKGROUND

On October 23, 2009, debtor Equipment Acquisition Resources, Inc. (EAR)
filed a voluntary Chapter 11 petition for bankruptcy in the United States Bankruptcy
Court for the Northern District of Illinois Case 09-B-39937 (Bankruptcy Case).
Plaintiff William A. Brandt, Jr., acting as EAR’s Plan Administrator, subsequently
filed adversary complaints against multiple Defendants in the Bankruptcy Case.
Specifically, in 2011, Brandt filed adversary complaints against Defendants Charter
Airlines, LLC (Charter) in adversary proceeding 11-A-2110, Rohr-Alpha, Inc.
(Rohr) in adversary proceeding 11-A-2147, Katie Malone in adversary proceeding
11-A-2171, Dana Malone in adversary proceeding 11-A-2179, Richard Drucker in
adversary proceeding 11-A-2181, Shirley Drucker in adversary proceeding 11-A2182, Ameristar Casino East Chicago, LLC (Ameristar) in adversary proceeding 11A-2185, Suntrust Leasing Corporation (Suntrust) in adversary proceeding 11-A2201, Cory Doran (Doran) in adversary proceeding 11-A-2189, U.S. Bancorp, Inc.
(U.S. Bancorp) in adversary proceeding 11-A-2196, American Bank FSB (American
Bank) in adversary proceeding 11-A-2200, The CIT Group/Equipment Financing,
Inc. (CIT Group) in adversary proceeding 11-A-2203, Robert Langford and RAL
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Associates in adversary proceeding 11-A-2209, KLC Financial, Inc. (KLC Financial)
in adversary proceeding 11-A-2222, Leasing One Corporation (Leasing One) in
adversary proceeding 11-A-2224, IBM Credit, LLC (IBM) in adversary proceeding
11-A-2227, Pentech Financial Services, Inc. (Pentech) in adversary proceeding 11A-2231, People’s Capital and Leasing, Corp. (People’s Capital) in adversary
proceeding 11-A-2233, Plainscapital Leasing, LLC (Plainscapital) in adversary
proceeding 11-A-2236, ICON Ear, LLC and ICON Ear II, LLC (ICON) in adversary
proceeding 11-A-2239, and TD Banknorth Leasing Corp (TD Banknorth) in
adversary proceeding 11-A-2582.
In January of 2014, the Bankruptcy Case was reassigned to a new bankruptcy
judge. Following such reassignment, Defendants Suntrust in case 14 C 744, IBM in
case 14 C 871, Plainscapital in case 14 C 965, KLC Financial in case 14 C 1065,
Pentech in case 14 C 1083, American Bank in case 14 C 1087, CIT Group in case 14
C 1091, People’s Capital in case 14 C 1092, Leasing One in case 14 C 1093, and
ICON in case 14 C 2192 filed motions to withdraw the bankruptcy reference of the
adversary proceedings pending in the Bankruptcy Case. Plaintiff also filed motions
to withdraw the bankruptcy reference of adversary proceedings pending in the
Bankruptcy Case relating to Defendants Ameristar in case 14 C 2260, Dana Malone

in case 14 C 2261, Robert Langford and RAL Associates in case 14 C 2263, Doran
in case 14 C 2264, Charter in case 14 C 2265, Shirley Drucker in case 14 C 2266,
Richard Drucker in case 14 C 2267, Katie Malone in case 14 C 2268, and Rohr in
case 14 C 2353. Plainscapital in case 14 C 966, People’s Capital in case 14 C 978,
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Leasing One in case 14 C 979, CIT Group in case 14 C 980, Pentech in case 14 C
988, TD Banknorth in case 14 C 989, KLC Financial in case 14 C 992, American
Bank in case 14 C 993, IBM in case 14 C 994 and U.S. Bancorp in case 14 C 1025
all filed motions for leave to file interlocutory appeals. People’s Capital in case 14 C
978, Pentech in case 14 C 988, and KLC Financial in case 14 C 992 have also filed
requests for certification. Additionally, Suntrust in case 14 C 744 and IBM in case
14 C 871 have filed motions to vacate orders in the Bankruptcy Case. Those of the
above referenced cases, which were not originally assigned to the undersigned judge,
were reassigned to the undersigned judge because they involve related bankruptcy
proceedings.

LEGAL STANDARD
Pursuant to 28 U.S.C. § 157(b)(1), “[b]ankruptcy judges may hear and
determine all cases under title 11 and all core proceedings arising under title 11, or
arising in a case under title 11, referred under subsection (a) . . ., and may enter
appropriate orders and judgments, subject to review under” 28 U.S.C. § 158. 28
U.S.C. § 157(b)(1). Pursuant to 28 U.S.C. § 157(d) a “district court may withdraw,
in whole or in part, any case or proceeding . . ., on its own motion or on timely
motion of any party, for cause shown.” Id. In addition, “[t]he district court shall, on
timely motion of a party, so withdraw a proceeding if the court determines that
resolution of the proceeding requires consideration of both title 11 and other laws of
the United States regulating organizations or activities affecting interstate
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commerce.” Id.; see also In re Coe-Truman Technologies, Inc., 214 B.R. 183, 185
(N.D. Ill. 1997)(stating that “withdrawal of the reference is mandatory only where
resolution of the claims will require substantial and material interpretation of a nontitle 11 statute, or which involve an analysis of significant open and unresolved
issues regarding non-Title 11 law” and “withdrawal of the reference is not required
where resolution of the proceeding involves the mere application of well-settled nonbankruptcy law to a new factual setting”)(internal quotations omitted)(quoting In re
Vicars Ins. Agency, Inc., 96 F.3d 959, 954 (7th Cir. 1996) and In re IQ
Telecommunications Inc., 70 B.R. 742, 745 (N.D. Ill. 1987)). In deciding whether to
grant a motion to withdraw reference, a district court should consider factors such as
“whether the parties requested a jury trial; whether the proceeding is core or noncore; judicial economy and convenience; conservation of debtor and creditor
resources; promoting the uniformity and efficiency of bankruptcy administration; and
the reduction of forum shopping and confusion.” In re Archdiocese of Milwaukee,
2013 WL 660018, at *1 (E.D. Wis. 2013)(internal quotations omitted)(quoting In re
Beale, 410 B.R. 613, 616 (N.D. Ill. 2009)). The determination of whether an
adversary proceeding involves a core or non-core proceedings is ‘the most important
factor’ in determining whether there is cause for withdrawal” mainly because “a
bankruptcy judge cannot enter a final judgment in a non-core proceeding.” In re
Archdiocese of Milwaukee, 2013 WL 660018 at *1 (quoting In re K & R Express Sys
., Inc., 382 B.R. 443, 446 (N.D. Ill. 2007)). The burden rests upon “the movant to
persuade the district court to withdraw the reference.” In re New Energy Corp., 2013
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WL 1192774, at *6 (Bankr. N.D. Ind. 2013).
Pursuant to 28 U.S.C. § 158(a), the district courts are provided with authority
to hear bankruptcy appeals as follows:
(a) The district courts of the United States shall have jurisdiction to hear
appeals
(1) from final judgments, orders, and decrees;
(2) from interlocutory orders and decrees issued under section 1121(d)
of title 11 increasing or reducing the time periods referred to in section
1121 of such title; and
(3) with leave of the court, from other interlocutory orders and decrees;
and, with leave of the court, from interlocutory orders and decrees, of
bankruptcy judges entered in cases and proceedings referred to the bankruptcy
judges under section 157 of this title. An appeal under this subsection shall be
taken only to the district court for the judicial district in which the bankruptcy
judge is serving.
Id. Courts generally look to 28 U.S.C. § 1292(b), which governs interlocutory
appeals to the federal circuit courts for the standard that should be applied to a
motion for leave to file an interlocutory appeal from bankruptcy proceedings. In re
Eastern Livestock Co., LLC, 2013 WL 4479080, at *5 (S.D. Ind. 2013); Kelly v.
Herrell, 2014 WL 1055134, at *5 (W.D. Wis. 2014).

DISCUSSION
The respective parties, as referenced above, have filed motions to withdraw the
bankruptcy reference of the adversary proceedings pending in the Bankruptcy Case,

motions for leave to file interlocutory appeals, requests for certification, and motions
to vacate orders in the Bankruptcy Case.
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I. Motions to Withdraw the Reference
A threshold issue for a motion to withdraw the reference is whether the motion
was filed in a timely fashion. A district court may grant a mandatory or permissive
motion to withdraw when there is a “timely motion” to withdraw. 28 U.S.C. §
157(d).
The record reflects that the Bankruptcy Case has been pending since October
23, 2009 and adversary proceedings against Defendants Charter, Rohr, Suntrust,
IBM, Plainscapital, People’s Capital, Leasing One, CIT Group, Pentech, KLC
Financial, American Bank, ICON, Ameristar, Dana Malone, Doran, Shirley Drucker,
Richard Drucker, Katie Malone, and Robert Langford and RAL Associates have
been proceeding since October of 2011. The record reflects that Suntrust, IBM,
Plainscapital, People’s Capital, Leasing One, CIT Group, Pentech, KLC Financial,
American Bank and ICON all waited until early 2014 to file their motions to
withdraw the bankruptcy reference. Plaintiff, who filed all of the adversary

proceedings in the Bankruptcy Case in 2011, waited even longer than Defendants to
file his motions motions to withdraw the bankruptcy reference. Specifically,
Plaintiff waited until March 28, 2014 to file his motions to withdraw the bankruptcy
reference relating to the adversary proceedings involving Charter, Ameristar, Dana

Malone, Doran, Shirley Drucker, Richard Drucker, Katie Malone, Rohr, and Robert
Langford and RAL Associates. Thus, the record shows excessive delays in the filing
of the motions to withdraw the reference. Defendants argue that their motions to
withdraw are timely because they acted based on a decision by the Supreme Court in
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Stern v. Marshall, 131 S.Ct. 2594 (U.S. 2011), and on decisions made by the Seventh
Circuit in In re Ortiz, 665 F.3d 906 (7th Cir. 2011), and Wellness Intern. Network,
Ltd. v. Sharif, 727 F.3d 751 (7th Cir. 2013). None of the parties have pointed to any
portions of above-referenced decisions that are directly on point in this case or that
would bar the bankruptcy court in the Bankruptcy Case from ruling on the adversary
proceedings. For example, Plaintiff speculates as to what appears to be an accurate
reading of Seventh Circuit precedent and acknowledges that the legal issues
presented in the motions to withdraw involve an “open question.” (14 C 965: DE
8:2; 14 C 1091: DE 11:2). The parties also disagree over the relevance of the ruling
in Peterson v. Somers Dublin Ltd., 729 F.3d 741 (7th Cir. 2013) to the instant cases.
The parties acknowledge that none of the above-referenced decisions are dispositive,
and indicate that a forthcoming ruling by the Supreme Court on the appeal from In re
Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) may contain dispositive
law on the withdrawal issue now before this court. No such ruling has yet been
made by the Supreme Court in Bellingham.
The rulings in Stern, Ortiz, and Wellness were not directly on point, and the
parties were not justified in waiting years to pursue the instant motions. In addition,
to the extent that the parties claim to have acted pursuant to the above-referenced
decisions, the motions to withdraw now before this court were filed a significant
amount of time after the decisions in Stern, Ortiz, and Wellness. The parties have
failed to explain why it took them years to come to the realization that the adversary
proceedings should be withdrawn from the Bankruptcy Case. The movants bear a
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burden to show the court that withdrawal is appropriate and the movants have failed
to provide sufficient information to show that their motions are timely.
The parties also argue that their motions to withdraw are not untimely because
they brought such motions when the newly assigned bankruptcy judge raised the
issue of withdrawal in January of 2014. The parties cite to a transcript from hearings
before the bankruptcy judge. However, the parties should have been well aware long
before the case was assigned to the new bankruptcy judge that withdrawal requests
must be timely made pursuant to the law. Thus, the suggestion made by the
bankruptcy judge at a hearing in 2014, years after the adversary proceedings had
been pending, do not provide justification for the significant delays in bringing the
instant motions to withdraw.
Plaintiff contends that the cases that he seeks to withdraw will “languish” in
the Bankruptcy Case without any ultimate resolution. (14 C 2260: DE 1:7).
However, as Plaintiff acknowledges in other briefings on this issue, when the
Supreme Court rules in Bellingham the Court may resolve issues relating to
withdrawal and thus it is premature to withdraw the reference at this juncture. (14 C
1091: DE 11:2). The court notes that when the Supreme Court rules in Bellingham,
if that ruling materially alters the legal landscape that is relevant to the withdrawals
sought in these cases, and if the parties pursue motions to withdraw the reference in a
timely fashion following such ruling, such motions to withdraw the reference at that
juncture will be properly adjudicated. The court also notes that judicial efficiency is
promoted by denying the motions to withdraw the reference at this juncture.
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Inefficiency has already been evident in the recent withdrawal process thus far. The
court notes that the parties argue in extensive briefing regarding the holdings in
Stern, Ortiz, Wellness, and Peterson while at the same time acknowledging that such
arguments may soon be moot when the Supreme Court decides the appeal in
Bellingham. Inefficiency is also shown by the fact that Plaintiff has sought, in a
piecemeal fashion, to oppose the withdrawal of certain adversary defendants even
when no proof of claim was filed. The parties have failed to show how the adversary
proceedings, which have been pending in the Bankruptcy Case since October of
2011, have now in 2014 become an inefficient forum requiring adjudication by this
court. Judicial economy will be promoted if these cases remain in the bankruptcy
court at this juncture, and are not prematurely and/or improperly withdrawn to the
district court. Therefore, the motions to withdraw the bankruptcy reference are
denied without prejudice.

II. Motions for Interlocutory Appeals
As referenced above, certain Defendants have filed motions for leave to file
interlocutory appeals. In general, leave should be granted for an interlocutory appeal
from bankruptcy proceedings: (1) when the proceeding “involves a controlling
question of law,” (2) when “there is substantial ground for difference of opinion” in
the proceeding, and (3) when “an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” In re Eastern Livestock Co., LLC,
2013 WL 4479080, at *6.
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Defendants seek leave to appeal rulings by the newly assigned bankruptcy
judge denying their motions to dismiss. Defendants contend that the bankruptcy
judge did not rule consistent with B.E.L.T., Inc. v. Wachovia Corp., 403 F.3d 474,
476 (7th Cir. 2005). However, in ruling, the bankruptcy judge also indicated that
based on Stern and Seventh Circuit precedent, he lacked subject matter jurisdiction to
enter a final order or judgment. As explained above, the parties anticipate that the
Supreme Court may make a ruling in Bellingham that will resolve certain legal issues
that are relevant in these cases. Thus, to prematurely allow appeals to proceed in this
case on the eve of a ruling by the Supreme Court will not materially advance the
ultimate resolution in these cases. In fact, allowing interlocutory appeals cause
unnecessary delays and inefficiencies in these cases because certain Defendants may
seek to return to the bankruptcy court in the midst of the interlocutory appeals based
on a future ruling in Bellingham. Therefore, the motions for leave to file
interlocutory appeals are denied without prejudice.

III. Requests For Certification
People’s Capital, Pentech, and KLC Financial have also filed requests for
certification. Pursuant to Federal Rule of Bankruptcy Procedure 8001(f), a party
may seek certification for a direct appeal to a circuit court of appeals. Fed. R. Bankr.
P. 8001(f). As explained above, allowing the interlocutory appeals to proceed in this
court at this juncture will not promote the efficient administration of justice. Nor
have the parties shown that a certification for a direct appeal to the Seventh Circuit is
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warranted at this juncture. Therefore, the request for certification is denied without
prejudice.

IV. Motions to Vacate
Suntrust and IBM have filed motions to vacate orders in the Bankruptcy Case.
As explained above, the court denied Suntrust and IBM’s motions to withdraw
reference, and the court denied IBM’s motion for leave to file an interlocutory
appeal. Thus, no part of the Bankruptcy Case is before this court and the motions to
vacate orders are denied without prejudice.

CONCLUSION
Based on the forgoing analysis, the motions to withdraw the bankruptcy
reference, motions for leave to file interlocutory appeals, requests for certification,

and motions to vacate orders are denied without prejudice.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: April 30, 2014

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