In re Radcliffe

• Decision Date: 19 July 2007
• Docket Number: Adversary No. 05-6264.,Bankruptcy No. 05-67516 JPK.
• Parties: In re Barry G. RADCLIFFE, Debtor. Barry G. Radcliffe, Plaintiff, v. International Painters and Allied Trades Industry Pension Fund, Defendant.
• Court: United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana

Page 401

372 B.R. 401

In re Barry G. RADCLIFFE, Debtor Barry G. Radcliffe, Plaintiff, v. International Painters and Allied Trades Industry Pension Fund, Defendant.

Bankruptcy No. 05-67516 JPK.

Adversary No. 05-6264.

United States Bankruptcy Court, N.D. Indiana, Hammond Division.

July 19, 2007.

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David M. Blaskovich, Esq., Casale, Woodward & Buls, LLP, Merrillville, IN, for the Plaintiff.

Frederick W. Dennerline, Esq., Indianapolis, IN, and Kent Cprek, Philadelphia, PA, for the Defendant.

MEMORANDUM OF DECISION CONCERNING FINAL JUDGMENT

J. PHILIP KLINGEBERGER, Bankruptcy Court.

On March 14, 2007, the Court entered its Memorandum of Decision and Order which preliminarily determined matters in this adversary proceeding.¹ On March 26, 2007, the defendant filed its "Defendant's Motion for Reconsideration of March 14, 2007 Order and Relief Under Rules 7052, 9023 and/or 9024". Because the order entered on March 24, 2007 did not constitute a final judgment, technically review of the order under Fed.R.Bankr.P. 7052/ Fed.R.Civ.P. 52(b), Fed.R.Bankr.P. 9023/Fed.R.Civ.P. 59 and Fed.R.Bankr.P. 9024/ Fed.R.Civ.P. 60(b) would not be appropriate. However, as provided by Fed. R.Bankr.P. 7054/ Fed.R.Civ.P. 54(b), the March 14, 2007 order — not being a final judgment — is subject to revision at any time before the entry of a judgment which adjudicates all claims asserted in this adversary proceeding, and the Court deems the defendant's motion filed on March 26, 2007 to request review of the matters addressed in the March 17, 2007 order prior to the entry of final judgment. A hearing on the defendant's motion was held on June 1, 2007, at which the Court heard the arguments of counsel for the plaintiff and counsel for the defendant. The Court now states this Memorandum of Decision as its findings of fact and conclusions of law pursuant to Fed.R.Bankr.P. 7052/Fed.R.Civ.P. 52(a) with respect to all claims advanced in this adversary proceeding, for the purposes of entry of final judgment in this case.²

This adversary proceeding, initiated by a complaint filed on December 7, 2005 by Barry G. Radcliffe ("Radcliffe") against International Painters and Allied Trades Industry Pension Fund ("International"), seeks a determination by the Court that actions undertaken by International with respect to pension benefits payable to Radcliffe under an ERISA-qualified plan constituted a violation of the automatic stay of 11 U.S.C. § 362(a), thus giving rise to an action on the part of Radcliffe under 11 U.S.C. § 362(h).³

In paragraph 29 of the Stipulation of Facts filed by the parties on May 4, 2006, the parties have stipulated that this Court has personal and subject matter jurisdiction "of the causes of action asserted in the complaint". The Court agrees. The complaint seeks relief pursuant to 11 U.S.C. § 362(h), and parenthetically pursuant to 11 U.S.C. § 105(a), and thus the Court's subject matter jurisdiction is provided by 28 U.S.C. § 1334(a) and (b), by 28 U.S.C. § 157(a) and (b), and by L.R. 200.1(a) of the Rules of the United States District Court for the Northern District of Indiana. The matters raised by the parties constitute core proceedings under 28 U.S.C. § 157(b)(2)(G) and (O).

I. HISTORY OF PROCEEDINGS AND THE RECORD

This adversary proceeding was initiated on December 7, 2005 by Radcliffe's filing of his complaint. International filed its answer to the complaint on January 5, 2006. Following several preliminary pretrial conferences, on April 5, 2006, the Court entered its Order Concerning Determination of Case on a Stipulated Record, which established the deadline for the parties' submission of a stipulation of facts and all controlling evidence to be considered by the Court in arriving at a final judgment in this case, and further provided deadlines for the submission of legal memoranda by both parties. The required Stipulation of Facts was filed on May 4, 2006, and subsequently the parties each timely submitted briefs in accordance with the order entered on April 5, 2006.

On May 31, 2006, International filed its "Defendant's Motion for Relief from Automatic Stay" in case number 05-67516. This motion sought relief from the automatic stay, retroactive to the date of the filing of Radcliffe's Chapter 7 case, with respect to setoff of pension benefits payable by International to Radcliffe. By its Order of Consolidation of Contested Matter Into Adversary Proceeding entered by the Court on July 26, 2006 in case number 05-67516, the Court and the parties determined that the issues raised by International's motion for relief from the automatic stay were substantially related to the issues in this adversary proceeding. That order consolidated the issues in the contested matter arising from the motion for stay relief into the adversary proceeding, and determined that the issues in the contested matter would be determined in conjunction with determination of issues in the adversary proceeding — again on the basis of a stipulated record to be filed by the parties, as was provided for by the Court's order entered on April 5, 2006.

The consolidated proceeding is before the Court for final determination.

II. THE FACTUAL RECORD ESTABLISHED BY THE PARTIES

The factual record is established solely by the Stipulation of Facts filed by the parties on May 4, 2006. Among the pertinent facts are those stated as follows in the Stipulation of Facts:

1. The Pension Fund is a trust fund or "multiemployer plan" and "employee benefit pension plan" with its principal place of business and is administered from an office located at 1750 New York Avenue, N.W., Washington, DC 20006.

2. Gary J. Meyers is Fund Administrator of the Pension Fund and has authority to act as a representative of the Fund in this matter.

3. Glass Service, Inc. ("Company") is a company owned and previously operated by Debtor and Roger Duszynski ("Duszynski").

4. Debtor and Duszynski were officers of Company.

5. The Company signed a collective bargaining agreement ("Labor Contract") with District Council 91, affiliated with the International Union of Painters and Allied Trades, for the period July 1, 2003 to June 30, 2006 on August 18, 2003.

6. In early 2004, the Company became delinquent in its contributions to the Pension Fund. The delinquency continued through several months of that year and through March of 2005.

7. On or about May 10, 2004, Company, Debtor and Duszynski executed an installment Promissory Note ("Note") in favor of the Pension Fund.

8. Debtor and Duszynski executed a Personal Guarantee obligating them personally to all obligations of Company in the event of a default by Company on the Note.

9. On December 28, 2004, the Pension Fund filed a Complaint against Debtor, the Company and Duszynski, in the United States District Court for the District of Columbia, which was docketed as Civil Action No. 04-2247 (the "DDC Action").

10. On or about April 28, 2005, a judgment by default was entered in the DDC Action in favor of the Pension Fund against Debtor and his codefendants. The judgment, was not appealed and became final.

11. The judgment in the DDC Action was transferred to Indiana on August 31, 2005, as IUPAT Fund v. Glass Service, et al., No. 2:05MC0016 (N.D.Ind.).

12. The Company ceased operations in May 2005.

13. Before September 2005, Debtor filed an application with the Pension Fund for pension benefits.

14. On or about September 29, 2005, Debtor received a summary of pension plan benefit alternatives in a letter from the Pension Fund. Debtor completed the forms on October 6, 2005 and returned them to the Pension Fund, on or about October 13, 2005.

15. Debtor commenced a Chapter 7 bankruptcy on or about October 13, 2005 (the "Petition Date"), in the United States Bankruptcy Court for the Northern District Of Indiana — Hammond Division, which was docketed as In Re: Barry G. Radcliffe, Case No.: 05-67516-jpk (the "Debtor's Bankruptcy").

16. The Pension Fund was listed as a creditor on Debtor's Schedule E — Creditors Holding Unsecured Priority Claims in the Debtor's Bankruptcy in the amount of $107,500.00.

17. The Pension Fund filed a Proof of Claim on February 24, 2006 in the Debtor's Bankruptcy. An accurate copy of the proof of claim is attached as Exhibit 7.

18. On November 2, 2005, the Pension Fund, by its representative Gary J. Meyers Fund Administrator, sent a letter to Debtor.

19. On November 3, 2005, Debtor sent a letter to the Pension Fund, in care of Gary J. Meyers, Fund Administrator.

20. On November 11, 2005, counsel for Debtor, Danette Garza, sent a letter to the Pension Fund.

21. From August 2005 to date, Debtor has not received any cash, check or deposit to a personal account of the Debtor or an account of the trustee in the Debtor's Bankruptcy or other payment from the Pension Fund.

22. From the date of the judgment in the DDC Action to the date of this stipulation, the Pension Fund states under penalty of perjury that it has not received any cash, check, deposit or other payment from Company or Duszynski. Debtor has no admissible evidence to the contrary.

23. A copy of the summary plan description for the International Painters and Allied Trades Industry Pension Plan, effective January 1, 2003, was mailed to and received by Debtor before the Debtor's Bankruptcy, and any summary of material modifications after its issuance was mailed to and received by Debtor before the Debtor's Bankruptcy.

24. The assets of the Pension Fund and any pension benefits payable to Debtor are not part of the bankruptcy estate in the Debtor's Bankruptcy.

In more narrative form, as established by the foregoing, and as established by the documentary attachments to the Stipulation of Facts, Radcliffe was an officer in a corporation doing business under the name of Glass Service, Inc. This corporation was a party to a collective bargaining agreement between...