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Bankruptcy Law/Compelled to mediation & Form Fequest trial by Jury

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QUESTION: Hi!  The plaintiff filed a motion to compel mediation which was granted (so what else is new) and I had filed a Motion for Summary Judgment on 5/20/13. I have a hearing Monday 6-3-2013 9.m. on the summary judgment and the mediation is set for 6-3-2013 at 1pm in Missouri.  I'm in Illinois. The plaintiff requested a mediation judge I found out he KNEW because he's has Chap. 11 cases in front of this guy.  
In the event my sum. judg. is denied (by law it shouldn't be but that means nothing here) then there is a trial set fof 6/24/2013 at 9.am.  I want to file a Mot. for trial by Jury.  I can't find a proper format for that - do you have one or refer to me where I can find one?  
I sent an email to the plaintiff requesting the mediation be rescheduled because of the date conflict they caused by not informing the court of the mediation schedule consequently the sum. hearing was then scheduled on what they believed as an open date.  
I tried contacting the mediators office to find out what could be done and I was informed that no matter what they had the mediation scheduled for that date. NOW, IF by some miracle my sum. judg. is granted then there is no need for a mediation.  And, since I'm being treated like the dirt poor relative with a bad case of B.O., I'm not in much of a good mood to be cooperative. I may be forced to show up but I cannot be forced to 'mediate' right?
Since the judge ordered the mediation do I HAVE to attend since it is supposed to be voluntary. It is my understanding all I have to do is 'show up'. Can  they make binding decisions without my cooperation?  Unfortunately, I'm the wrong preson to FORCE into doing anything.  Makes one uncooperative doesn't it?  

Thanks!  Hope you had a good Memorial Day weekend!  It was quiet here.

ANSWER: Take 2-- system ate answer #1;  1) file a motion and request an expedited hearing on moving the mediation to your locale with the point being made that requiring you to travel OUT OF STATE is a financial hardship;  plenty of mediators are local;  if that doesn't work get the mediator will allow a phone call as this is largely a joke -- the parties in mediation agree to their own settlement (like that's going to happen here), unless they do it's NOT binding and is a run at settling.

Next, file a motion for withdrawal of the reference so you can have a jury trial;  this issue should have been brought up at the pre trial conference --- was it?  If so, it may be too late but in many circuits they don't let bk judges do jury trials -- or at least enter final orders on them.

If anyone asks you for your consent to have the bk court enter a final judgment, it means they consider the matter "non core" and that can happen only with everyone's consent -- do NOT consent.  Instead, if you don't the bk judge can only make findings and recommendations to the dist ct that itself enteres the final judgt and that can be after a second hearing......

Good luck with this.  There may be a filing fee for a w/d motion but it is decided by the district ct, not the bk court.

Make sure you also file a request (separate from the motion) for a jury trial.  It may be too late if you had a pre trial conf and the matter didn't come up.



---------- FOLLOW-UP ----------

QUESTION: I have prepared the Mot. of Trial by Jury - will mail a.m. They should receive it by Monday.  Then, I sent the mediation judge a FaX requesting a telephone conference due to hardship as you suggested. Yes, it IS a joke - these clowns have had two years to offer mediation or any other form of settlement - they haven't.  Now, they know I'm going to try to sue them outside this court IF this case is ever closed - in it's 4th year now, a Chap. 7, can you believe it. Attorneys here  have never heard of a Chap. 7 going to trial. No attorney will touch this case.  I find it totally interesting that when any thing is close to being discussed the first thing they want is a 'release' from me IF they settle.  They have taken a claim of $5021.99 and blown it up to just under $25,000.00 plus. I have new evidence from Amer. Express the account is not a valid claim and has even been purged from their records. I did submit a copy of those letters to this corrupt judge, hopefully he can read, where it should dawn on him that he allowed a claim to stand that did not exist!  It claim is bogus but they ignored me completely.  So, I wrote Am. Exp.asking for verification - they have even removed it from the credit bureau reports.  THERE is no record of this account as being open and active since 2004!  This belongs in Robert Ripley, wouldn't you agree?  FDIC said they would go after Am. Exp.if I had to pay this claim and if they find them culpable they WILL be forced to refund all money.  They can't do that as long as the case is in litigation.  
You gave me some home work - I had to look up the definition of 'non-core' - so I learned something new today.  But I usually do with your guidance. Thank the good Lord for souls like you.

ANSWER: In law school our favorite past time around the saloon table after class is "what if".  Let's play "what if".  What if you dont get your jury trial and what if they get custody of the funds in question?  Is it true that the only claim filed is AX?

If AX does not file a claim or withdraws the claim they did file OR files a claim for money they're not entitled to, then what?  You can object to any claims filed.

The joker in the deck is YOU have standing to object to claims in this case (not legally due for example) because the surplus would revert to you.  

So I'd proceed forward with your jury trial but understand you still have some cards to play afterward.  As nothing the trustee did resulted in any benefit to any creditors, the trustee should not receive any fees and ditto the attorney for the estate, in my opinion.

Keep me posted!  Lee



---------- FOLLOW-UP ----------

QUESTION: Yes, there is only ONE creditor in the amount of $5021.99.  REALLY!

You won't believe this one. The 'mediation' was scheduled for 6/3, 1 pm and the hearing for the S. J. at 9 am on 6/3. When we got to court, the judge was frustrated because he stated 'the mediation was to have taken place BEFORE the S.J. hearing - so, he did not want to rule on my S. J., and sent Wallace (attorney) and I out into the hall to discuss settlement. I had appealed this claim but the 7th circuit in their stupidity ruled in favor and upheld the claim - they are as intelligent as a box of hammers when it comes to financial matters, as is this attorney BUT I'm stuck with the claim. It is too late to go to the Supreme court to reverse that ruling, made in 2011, I found I had only 90 days to dispute the 7th circuit.
Wallace kept saying 'shoot me a figure' so I did.  They had attorney billings in excess of approximately $17,000.00,plus the $5021.99 AM, and $1255.50 for trustee, so I shot him a figure of $6500.00.  He accepted it and is supposed to be preparing the Order for the court's approval.  Then, it will be over. I will go to the FDIC iin Salt Lake City, UTah to file a complaint against AECB for filing a fabricated and bogus claim, which, I have found is a normal practice for them and they have been made to refund millions and millions of dollars to customers and card holders - you would think they would learn, but they don't.  So, I'm waiting for Wallace to send me a copy of the 'settlement agreement' prior to his filing it so I can submit a copy to the FDIC.  

What do you think?

Answer
Good luck with all this.  You might also complain to the state bar as well as the FDIC on all tis and I wouldn't hesitate to complain about the judicial misconduct to the circuit;  if you go to the circuit's website you'll see a procedure to do that.  Wait until the judgment is entered and final (15 days after entry) before you do anything else.

Lee

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LEE HORNER, ESQ.

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Consumer bankruptcy questions invited. I've been filing Chapter 7, 11 and 13 cases since 1985 in Calif and Arizona. I do NOT do homework questions. Let me know what state you're located in when you write. My bankruptcy practice is limited to California and Arizona but inquiries from other states are welcome. Your local jurisdiction determines exemptions. Find more background information at our website, www.freshStartAz.info. Individual Chapter 11 and small business chapter 11 questions invited. We can also advise on the creditor's side if for example you have a fraud case, money judgment etc against someone who has filed (or is threatening) bankruptcy. We have filed and defended numerous adversary complaints in bankruptcy court and opposed trustees' demands for turnover of assets from time to time.

Experience

My partners and I have filed over 5000 consumer and small business cases to date in California and Arizona.

Organizations
I've been a member of the California bar since 1984 and Arizona since 2004; also a member of the National Association of Consumer Bankruptcy Attorneys, Bankruptcy section of the Arizona State Bar, Tucson Association of Consumer Bankruptcy Attorneys, Arizona Consumer Bankruptcy Counsel and American Hellenic Educational and Progressive Association (AHEPA).

Publications
I've written a booklet on land trusts for real estate owners, players and dealers, and co-authored a special edition of "Stop Sitting on Your Assets". I was a writer of a monthly law review article relating to California real estate issues and pending and recently enacted legislation.

Education/Credentials
Attorney at law, experienced in trial procedures, adversary complaints filed and defended and numerous claims objection proceedings as well as filing cases for consumer and small business debtors.

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