In re McCoy

• Decision Date: 16 November 2006
• Docket Number: No. 05 C 43387.,05 C 43387.
• Parties: In re Robert McCOY, Debtor.
• Court: United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Illinois

355 B.R. 69

In re Robert McCOY, Debtor.

No. 05 C 43387.

United States Bankruptcy Court, N.D. Illinois, Eastern Division.

November 16, 2006.

COPYRIGHT MATERIAL OMITTED

David P. Lloyd, Grochocinski, Grochocinski and Lloyd, Orland Park, IL, for Debtor.

MEMORANDUM OPINION

JOHN H. SQUIRES, Bankruptcy Judge.

This matter comes before the Court on the objection of Robert McCoy (the "Debtor") to Claim Nos. 8 and 9 filed by Mutual Bank and Claim No. 10 filed by Mary E. Dik. For the reasons set forth herein, the Court overrules and denies, in part, the Debtor's objection to these claims. Claim Nos. 8 and 9 of Mutual Bank are duplicate claims, and thus, Claim No. 9 is hereby disallowed. Claim No. 8 is allowed. Claim No. 10 filed by Mary E. Dik is allowed.

I. JURISDICTION AND PROCEDURE

The Court has jurisdiction to decide this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. It is a core proceeding under 28 U.S.C. § 157(b)(2)(B).

II. FACTS AND BACKGROUND

On October 4, 2005, the Debtor filed a Chapter 13 bankruptcy petition. The Debtor's plan was confirmed on December 21, 2005. The plan provides for a ten percent distribution to general unsecured creditors.

On January 30, 2006, Mutual Bank filed two proofs of claim, each in the amount of $111,701.11, which were designated Claim Nos. 8 and 9.¹ On May 1, 2006, Mary E. Dik filed a proof of claim in the amount of $111,701.11, which was designated Claim No. 10. Mary E. Dik's claim was filed after the claims bar date.²

The circumstances underlying the proofs of claim are as follows. In May 2001, Mary E. Dik, a notary public and an employee of Mutual Bank, notarized the purported signatures of the Debtor and his then wife, Bonnie McCoy, on a mortgage on their home to secure a business loan to the Debtor from Security Bank of DuPage, now known as Mutual Bank. The Debtor admitted in a deposition in a state court action that he forged Bonnie McCoy's signature on the loan documents. Upon learning of the forgery, in 2004, Bonnie McCoy filed a marital dissolution proceeding and also filed a lawsuit in the state court against Mutual Bank and Mary E. Dik alleging that her signature on the mortgage was forged by the Debtor and improperly notarized by Mary E. Dik. (Resp.Ex. No. 1-C.) Bonnie McCoy did not name the Debtor in that lawsuit. Mutual Bank filed a third-party complaint against the Debtor and asserted fraud, negligence, breach of contract, breach of warranty, indemnification, and contribution. (Resp.Ex. No. 1.) On April 5, 2005, an order of default was entered against the Debtor in the state court action. (Resp.Ex. No. 2.) The state court action was stayed by the automatic stay in this bankruptcy case. On July 27, 2006, Mutual Bank and Mary E. Dik moved for relief from the stay to pursue discovery from the Debtor in the state court proceedings relative to the claims asserted against them there. That motion was granted by this Court on August 9, 2006.

III. APPLICABLE STANDARDS

Pursuant to Federal Rule of Bankruptcy Procedure 3001(f), "[a] proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." FED. R. BANKR. P. 3001(f); see also 11 U.S.C. §§ 501 and 502(a). Claim objectors carry the initial burden to produce some evidence to overcome this rebuttable presumption. In re O'Malley, 252 B.R. 451, 455-56 (Bankr.N.D.Ill.1999). "Once the objector has produced some basis for calling into question allowability of a claim, the burden then shifts back to the claimant to produce evidence to meet the objection and establish that the claim in fact is allowable." Id. at 456. However, the ultimate burden of persuasion always remains with the claimant to prove entitlement to the claim. In re Nejedlo, 324 B.R. 697, 699 (Bankr.E.D.Wis.2005); In re Octagon Roofing, 156 B.R. 214, 218 (Bankr. N.D.Ill.1993). The properly filed claims of Mutual Bank and Mary E. Dik constitute prima facie evidence of the validity and amount of those claims. The Debtor, as objector, has the burden of presenting evidence to rebut the claims' prima facie validity. If that burden is satisfied, then Mutual Bank and Mary E. Dik bear the ultimate burden of proving their claims. The parties waived their opportunity for an evidentiary hearing and chose to rest on their filed papers.

IV. DISCUSSION

The Debtor contends that the claims of Mutual Bank and Mary E. Dik are for reimbursement or contribution of an entity that is liable with the Debtor pursuant to 11 U.S.C. § 502(e)(1). Specifically, the Debtor maintains the claims are based on liability that may exist to Bonnie McCoy based on her allegation that the Debtor forged her signature on the loan documents. Further, the Debtor argues that the claim of Bonnie McCoy is deemed disallowed because she was properly scheduled and did not timely file a claim, and therefore, her claim is disallowed as defined Din § 502(e)(1)(A). The Debtor contends that the claims are contingent as defined in § 502(e)(1)(B). According to the Debtor, the claims of Mutual Bank and Mary E. Dik should be subrogated to the claim of Bonnie McCoy pursuant to 11 U.S.C. § 509. Alternatively, the Debtor states that the claim of Mary E. Dik is not a claim on which the Debtor is liable because Bonnie McCoy's claim against Mary E. Dik is based on a different theory-allegation of false notarization of documents.

Mutual Bank and Mary E. Dik argue that the Debtor's reference to §§ 502(e) and 509 is not germane to the claims at issue. According to Mutual Bank and Mary E. Dik, the Debtor's repeated contentions that the claims at bar are for reimbursement and contribution are incorrect. Rather, the claimants argue that Bonnie McCoy's complaint against them and Mutual Bank's complaint against the Debtor show that Mutual Bank and Mary E. Dik are pursuing claims that are direct in nature, e.g., fraud, negligence, breach of contract, and breach of warranty.

The Debtor objects to the claims of Mutual Bank and Mary E. Dik under 11 U.S.C. § 502(e)(1) which provides as follows:

(e)(1) Notwithstanding subsections (a), (b) and (c) of this section and paragraph (2) of this subsection, the court shall disallow any claim for reimbursement or contribution of an entity that is liable with the debtor on or has secured the claim of a creditor, to the extent that

(A) such creditor's claim against the estate is disallowed;

(B) such claim for reimbursement or contribution is contingent as of the time of allowance or disallowance of such claim for reimbursement or contribution; or

(C) such entity asserts a right of subrogation to the rights of such creditor under section 509 of this title.

11 U.S.C. § 502(e)(1).

First, the Debtor argues that the claim of Bonnie McCoy is deemed disallowed because she was properly scheduled as a creditor and did not timely file a claim. Therefore, according to the Debtor, her claim is disallowed as defined in § 502(e)(1)(A). The Debtor maintains that the alleged disallowance of Bonnie McCoy's claim is sufficient to bar the claims of Mutual Bank and Mary E. Dik. The Court rejects this contention. A claim must be filed before it can be allowed or disallowed. The failure of a scheduled creditor to file a claim by the deadline date does not mean that the unified claim is disallowed. Indeed, Bonnie McCoy never filed a claim in this bankruptcy case. Therefore, she did not have a claim that could be either allowed or disallowed. Thus, the Debtor's argument that Bonnie McCoy's unified claim has been disallowed under § 502(e)(1)(A) fails. Accordingly, the Debtor has not established that Claim No. 8 of Mutual Bank and Claim No. 10 of Mary E. Dik should be disallowed under § 502(e)(1)(A).

Next, in order to disallow a claim for reimbursement of or contribution to an entity that is co-liable with the debtor under § 502(e)(1)(B), three factors must be established: (1) the claim must be one for reimbursement or contribution; (2) the party asserting entitlement to reimbursement or contribution must be liable with the debtor on the underlying claim; and (3) the claim must be contingent at the time of its allowance or disallowance. Norpak Corp. v. Eagle-Picher Indus., Inc., 131 F.3d 1185, 1187 (6th Cir.1997); In re GCO Servs., LLC, 324 B.R. 459, 465 (Bankr.S.D.N.Y.2005); In re Farley, Inc., 225 B.R. 407, 411 (Bankr.N.D.Ill.1998); In re Drexel Burnham Lambert Group, Inc., 146 B.R. 98, 100-01 (Bankr.S.D.N.Y.1992); In re A & H, Inc., 122 B.R. 84, 85 (Bankr. W.D.Wis.1990); In re Provincetown-Boston Airlines, Inc., 72 B.R. 307, 309 (Bankr. M.D.Fla.1987).

Mutual Bank and Mary E. Dik rely on the legislative history of § 502(e)(1) and contend that their claims are not of the kind subject to disallowance under this section. The legislative history of § 502(e)(1) speaks to the claims of "codebtor, surety or guarantor" and states as follows:

[Section 502(e)], also derived from present law, requires disallowance of the claim for reimbursement or contribution of a codebtor, surety or guarantor of an obligation of the debtor, unless the claim of the creditor on such obligation has been paid in full. The provision prevents competition between a creditor and his guarantor for the limited proceeds in the estate.

S. REP. No. 95-989, at 65 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5851, 6310; H.R. REP. No. 95-595, at 354 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 5851, 6310. One court noted that "[s]ection 502(e)(1)(B) is also designed to prevent double payment by an estate for the same underlying liability. `The section is not intended to immunize debtors from contingent liability,' but instead protects debtors from multiple liability on contingent debts." Farley, 225 B.R. at 411 (quoting Eagle-Picher, 131 F.3d at 1187).

In addition to codebtor situations created by contract, § 502(e)(1)(B) applies to disallow contingent...