In re Shenberg
Decision Date | 05 July 1977 |
Docket Number | No. 77 B 1946 and 77 B 1947.,77 B 1946 and 77 B 1947. |
Citation | 433 F. Supp. 677 |
Parties | In re Jay C. SHENBERG, Bankrupt-Appellee. Patricia A. SHENBERG, Bankrupt-Appellee, v. VILLAGE OF CARPENTERSVILLE, a Municipal Corporation, Defendant-Appellant. |
Court | U.S. District Court — Northern District of Illinois |
Jay C. Shenberg and Patricia A. Shenberg (pro se).
Richard W. Husted, Elgin, Ill., for defendant-appellant.
This appeal is by a creditor who seeks review of an order entered in separate bankruptcy proceedings filed by a husband and wife. The issue presented is whether a municipality can be restrained from withholding or refusing water service to bankrupts who fail to pay water bills that became due after the bankruptcy petitions were filed. This court holds that the municipality cannot be so restrained; that the bankruptcy judge erred in entering the order from which the appeal is taken; therefore, the cause is reversed and remanded for further proceedings consistent with the views expressed in this memorandum.
The decision of the village to terminate water service to the Shenbergs was not to collect the $289.00 debt that had been scheduled in the bankruptcy petitions; it was to enforce the provisions of its municipal code and compel payment of water bills that became due after the petitions were filed. In this appeal, the village contends that while it could not, by shutting off water service to the Shenbergs, compel payment of the scheduled debt, it cannot be restrained from withholding or refusing water service for non-payment of bills that became due after beginning of bankruptcy proceedings because to do so would require it to violate the ordinance that regulates its proprietary functions. The village argues that the order entered by the bankruptcy court was not a stay order; it was a mandatory injunction that requires it to continue furnishing water and sewer services to the bankrupts in violation of its municipal code.
These points are argued by the village in a brief filed in compliance with Rule 808, Bankruptcy Rules. The Shenbergs have not answered. Instead, Patricia Shenberg appeared before this court, pro se, and stated that she and her husband had moved from the Village of Carpentersville; and consequently, they had no desire to contest this appeal. It appears, then, that it may no longer be necessary to enforce the injunction order. However, because similar questions may arise again, this court will explicate its resolution of the issue presented by this appeal.
Section 11(a) of the Bankruptcy Act, 11 U.S.C. § 29(a), provides that a suit which is founded on a claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition by or against him, shall be stayed until adjudication or dismissal of the bankruptcy proceedings. If such person is adjudged a bankrupt, actions against him may be further stayed until the question of his discharge is determined by the court after a hearing, or by his filing a waiver of, or having lost, his right to a discharge, or, in the case of a corporation, by its failure to file an application for discharge within the time prescribed under the Act. 9 Am. Jur.2d Bankruptcy ...
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Ryan v. Ohio Edison Co., 77-3458
... ... Rutgers University, 445 F.Supp. 1362, 1367-68 (D.N.J.1978) (section 14 does not prevent public university from withholding transcripts for failure to pay discharged debt although Supremacy Clause does); In re Shenberg, 433 F.Supp. 677 (N.D.Ill.1977) (Bankruptcy Act does not prohibit municipality from shutting off water service for failure to pay discharged debt where a statute compelled the service to be discontinued for failure to pay debts); Matter of Thompson, 416 F.Supp. 991 (S.D.Texas 1976) (section 14 does ... ...
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MATTER OF MAHURKAR DOUBLE LUMEN HEMODIALYSIS CATH.
... ... E.g., Bambu Sales, Inc. v. Sultana Crackers, Inc., 683 F.Supp. 899 (E.D.N.Y.1988); Steak & Brew, Inc. v. Makris, 177 U.S.P.Q. 412 (D.Conn.1973); In re Shenberg, 433 F.Supp. 677 (N.D.Ill.1977); Brennan v. T & T Trucking, Inc., 396 F.Supp. 615 (N.D.Okla.1975). These cases are uninformative in litigation under a portion of the 1978 Code, § 362(a)(1), that changed dramatically. Although Bambu was decided under § 362(a), it relied only on older cases ... ...
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Marine Midland Bank v. Herriott
...proceeding need not be stayed because the order of this court will not interfere with the bankruptcy proceedings. In re Shenberg, 433 F.Supp. 677, 680 (N.D.Ill.1977). Indeed our resolution of the issues brought before us clarifies for the Bankruptcy Court the creditor status of the plaintif......