In re Bernhardy, Bankruptcy No. 87 B 10753

• Decision Date: 18 August 1989
• Docket Number: Bankruptcy No. 87 B 10753,Adv. No. 87 A 1040.
• Citation: 103 BR 198
• Parties: In re Kathleen Marie BERNHARDY, Debtor. FIRST NATIONAL BANK OF LINCOLNSHIRE, Plaintiff, v. Kathleen Marie BERNHARDY, Defendant.
• Court: U.S. Bankruptcy Court — Northern District of Illinois

103 B.R. 198 (1989)

In re Kathleen Marie BERNHARDY, Debtor FIRST NATIONAL BANK OF LINCOLNSHIRE, Plaintiff, v. Kathleen Marie BERNHARDY, Defendant.

Bankruptcy No. 87 B 10753, Adv. No. 87 A 1040.

United States Bankruptcy Court, N.D. Illinois, E.D.

August 18, 1989.

Richard Zabelski, Evanston, Ill., for debtor, defendant, Kathleen Marie Bernhardy.

Keevan D. Morgan, Morgan & Bley, Ltd., Chicago, Ill., for plaintiff, First Nat. Bank of Lincolnshire.

MEMORANDUM AND ORDER

THOMAS JAMES, Bankruptcy Judge.

Plaintiff, First National Bank of Lincolnshire, has moved for summary judgment on the request of Kathleen Marie Bernhardy, defendant, for the allowance of fees pursuant to § 523(d) of the Bankruptcy Code which provides that the court may award costs and reasonable attorney's fees to a debtor where the court has discharged a debt of a creditor who has requested a determination of the dischargeability of the debt under Code § 523(a)(2). The court for the reasons stated will deny First National's motion.

On September 27, 1988, this court held a trial on First National's complaint under Code § 523(a)(2) to determine the dischargeability of an alleged debt that Kathleen owed to First National. After First National had completed presentation of its evidence, Kathleen moved for dismissal under Fed.R.Civ.P. 41(b) Bankruptcy Rule 7041 on the ground that upon the facts and the law First National had shown no right to relief. This court granted the motion and dismissed the complaint for the reasons stated in open court on that date.

First National appealed. On April 17, 1989, the district court affirmed this court's decision dismissing First National's adversary proceeding. On May 25, 1989, Kathleen filed her petition requesting the allowance of fees.

First National contends that Kathleen's request filed on May 25, 1989 should be denied because she did not specifically request attorney's fees in her answer to the adversary proceeding and because the filing on May 25 was untimely. We do not agree with First National's contentions. Some courts without reference to such a provision have held that a debtor must request an award in the answer to the complaint, e.g., In re Finnie, 21 B.R. 368, 371 (Bkrtcy.D.Mass.1982). Others, that a debtor need not plead a request for fees in the answer, e.g., In re Sidore, 41 B.R. 206, 209 (Bkrtcy.W.D.N.Y.1984). The latter is the proper view. There is no provision in the Code or the rules that requires Kathleen to plead a request for attorney's fees.

Code § 523(d) places any plaintiff who files an adversary proceeding under Code § 523(a)(2) on notice that a debtor may be entitled to costs and reasonable attorney's fees if the court dismisses the complaint. If we must find some request in the answer, we are of the opinion that the general language of the prayer in Kathleen's answer to grant her "such other relief as is just" is sufficient. This general language and the provisions of Code § 523(d) gave First National sufficient notice that Kathleen would be able to seek a judgment against First National for costs and fees, if Kathleen's alleged debt is discharged. We do not believe that the provision that the court "shall grant judgment" is to be considered as requiring some type of "pleading" to obtain the award. A judgment gives a defendant the...