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Case 10-02174 Doc 24 Filed 11/06/11 Entered 11/06/11 16:13:53 Desc Main

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UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION



In re:







BRYAN DOUGLAS KIMMELL,





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Debtor. )
















JOSEPH R. VOILAND, TRUSTEE








v.


GALE S. KIMMELL,


Plaintiff,



















Defendant.

Case No. 10 - 36039



Chapter 7

Adversary No. 10-02174



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Defendant, GALE S. KIMMELL, for her Answer to the Amended Complaint of Plaintiff,

ANSWER TO AMENDED COMPLAINT



JOSEPH R. VOILAND, TRUSTEE, states as follows:

1.

This court has jurisdiction over adversary proceeding pursuant to 28 U.S.C. §1334 and

the Internal Operating Procedure 15(a) of the United States District Court for the

Northern District of Illinois.

ANSWER: Admits.

2.

This complaint initiates a core proceeding pursuant to 28 U.S.C. §157(b)(2)(H) and that

this is a proceeding to determine, avoid or recover fraudulent conveyances.

ANSWER: Admits.

3.

Venue in this District is proper pursuant to 28 U.S.C §1409(a) and that this proceeding is

commenced in the same District as the related Chapter 7 bankruptcy case.



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ANSWER: Admits.

4.

On August 12, 2010, the Debtor, Bryan Douglas Kimmell filed a voluntary petition in

bankruptcy under Chapter 7 of the Bankruptcy Code.

ANSWER: Admits.

5.

That Joseph R. Voiland is the appointed and acting Trustee in the above pending

bankruptcy proceeding.

ANSWER: Admits.

6.

That on or about December 3, 2007 the Debtor, Bryan D. Kimmell was married to the

Defendant, Gale S. Kimmell.

ANSWER: Admits.

7.

On March 7, 2009, a Judgment for Dissolution of Marriage was entered into between

Bryan Douglas Kimmell and Gale S. Kimmell.

ANSWER: Admits.

8.

The Judgment for Dissolution of Marriage was entered by agreement of the parties.

ANSWER: Admits.

9.

That pursuant to the terms and provisions of the Marital Settlement Agreement entered

into between Bryan Douglas Kimmell and Gale Kimmell, Bryan Kimmell received assets

totaling approximately $85,000.00 and Gale Kimmell received assets totaling approximately

$190,000.00.

ANSWER: Deny.

10.

At the time of the entry of the Marital Settlement Agreement, the Debtor was indebted to

various creditors who are also creditors in his Chapter 7 Bankruptcy Case.



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ANSWER: Defendant denies generally the allegation of paragraph 10 and Defendant lacks

sufficient knowledge or information to form a belief as to whether or not the allegation is true.

11.

That at the time of the entry of the Marital Settlement Agreement, Bryan Kimmell had

substantial debt which exceeded the value of the assets her received pursuant to the

Marital Settlement Agreement.

ANSWER: Defendant denies generally the allegation of paragraph 11 and Defendant lacks

sufficient knowledge or information to form a belief as to whether or not the allegation is

true.

12.

That as a result of the division of property pursuant to the Marital Settlement Agreement

entered

into between

the parties,

the Defendant, Gale S. Kimmell received a

disproportionate share of the marital assets.

ANSWER: Deny.

13.

That the disproportionate amount received by the Defendant, Gale Kimmell totaled

$62,500.00.

ANSWER: Deny.

COUNT I

AVOIDANCE OF TRANSER PURSUANT TO 11 U.S.C. §548 AND §550

1-14. Plaintiff realleges Paragraphs 1 through 14 as Paragraphs 1 through 14 hereunder.

ANSWER: Defendant repeats her Answers to Paragraphs 1-14 as her Answers to the

allegations contained in paragraphs 1-14 of Count I.

15.

Upon information and belief, the transfer by the Debtor to Gale Kimmell was made:

(a) with the actual intent to hinder, delay or defraud its creditors; or

(b) without receiving a reasonably equivalent value in exchange for the transfer at a time

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when:













(1) The Debtor was insolvent or became insolvent as a result of the transfer; or

(2) The Debtor was engaged or was about to engage in business or transaction for

which his remaining assets were an unreasonably small capital in relation to such

business or transactions; or

(3) The Debtor intended to incur or believed that he would incur debts beyond his

ability to pay as they became due.

ANSWER: Defendant denies generally the allegation of paragraph 15 and Defendant lacks

sufficient knowledge or information to form a belief as to whether or not the allegation is

true.

16.

The transfer by the Debtor to Gale Kimmell constitutes a fraudulent transfer within the



meaning of 11 U.S.C. §548(a) and should be avoided.

ANSWER: Deny

17.

Pursuant to 11 U.S.C. §550, the Trustee is entitled to recover the value of the amount of



the transfer from the Debtor to the Defendant, Gale Kimmell.

ANSWER: Deny

COUNT II

AVOIDANCE OF TRANSFER PURSUANT TO 740 ILCS 160/5 AND 160/9(b)

1-14. Plaintiff realleges Paragraphs I through 14 as Paragraphs I through 14 hereunder.

ANSWER: Defendant repeats her Answers to Paragraphs 1-14 as her Answers to the

allegations contained in paragraphs 1-14 of Count II.

15.

Upon information and belief, the transfer by the Debtor to Gale Kimmell was made:



(a) with the actual intent to hinder, delay or defraud its creditors; or

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(b) without receiving a reasonably equivalent value in exchange for the transfer at

a time when:















(1) The Debtor was insolvent or became insolvent as a result of the

transfer; or

(2) The Debtor was engaged or was about to engage in business or

transaction for which his remaining assets were an unreasonably small

capital in relation to such business or transactions; or

(3) The Debtor intended to incur or believed that he would incur debts

beyond his ability to pay as they became due.

ANSWER: Defendant denies generally the allegation of paragraph 15 of Count II and

Defendant lacks sufficient knowledge or information to form a belief as to whether or not

the allegation is true.

16.

The transfer by the Debtor to Gale Kimmell constitutes a fraudulent transfer within the



meaning of 740 ILCS 160/5 and should be avoided.

ANSWER: Deny

17.

Pursuant to 740 ILCS 160/9(b), the Trustee is entitled to recover the present value of the



amount of the transfer from the Debtor to the Defendant, Gale Kimmell.

ANSWER: Deny

COUNT III

A VOIDANCE OF TRANSFER PURSUANT TO 740 ILCS 160/6 AND 160/9(b)

1-14. Plaintiff realleges Paragraphs I through 14 as Paragraphs I through 14 hereunder.

ANSWER: Defendant repeats her Answers to Paragraphs 1-14 as her Answers to the

allegations contained in paragraphs 1-14 of Count III.



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15.

The transfer by the Debtor was made without receiving a reasonably equivalent value in



exchange for the transfer or obligation.

ANSWER: Deny

16.

The Debtor was insolvent at the time or the Debtor became insolvent as a result of the



transfer or obligation.

ANSWER: Defendant denies generally the allegation of paragraph 16 of Count III and

Defendant lacks sufficient knowledge or information to form a belief as to whether or not

the allegation is true.

17.

The transfer by the Debtor to Gale Kimmell constitutes a fraudulent transfer within the



meaning of 740 ILCS 160/6 and should be avoided.

ANSWER: Deny

18.

Pursuant to 740 ILCS 160/9(b), the Trustee is entitled to recover the present value of the



amount of the transfer from the Debtor to the Defendant, Gale Kimmell.

ANSWER: Deny

FIRST AFFIRMATIVE DEFENSE

14.

As a first affirmative defense, Defendant alleges that the adversary complaint was not

filed with substantial justification pursuant to §157(b)(2)(H) in that Plaintiff did not conduct an

adequate investigation into the merits of Debtor’s Chapter 7 filing.



SECOND AFFIRMATIVE DEFENSE

15.

As a second affirmative defense, Plaintiff fails to state claim under Sections 160/5 or 160/6

of the Illinois Uniform Fraudulent Transfer Act (740 ILCS 160/5 et seq. and 740 ILCS 160/6 et

seq.) upon which relief may be granted. Plaintiff fails to allege with specificity the fraudulent



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conveyance relied upon by plaintiff to support a claim under the Illinois Uniform Fraudulent

Transfer Act (740 ILCS 160/5 et seq. and 740 ILCS 160/6 et seq.).

WHEREFORE, Defendant demands judgment against the Plaintiff dismissing the complaint, with

an award of attorney’s fees to Defendant's attorney and costs to defend this action and for such other

and further relief as to this court deems just and equitable.

Dated: November 6, 2011





/s/ Derrick B. Hager
Derrick B. Hager,
Attorney for Gale S. Kimmell









PROOF OF SERVICE

The undersigned certifies that the foregoing ANSWER TO AMENDED COMPLAINT was

served upon the Plaintiff by depositing a copy thereof in the U.S. Mail, postage prepaid, in

envelopes addressed to those listed below on the 6th day of November, 2011.




















The Honorable Joseph R. Voiland
Chapter 7 Trustee
1625 Wing Road
Yorkville, IL 60560













/s/ Derrick B. Hager











Defendant’s Attorney

Name Derrick B. Hager 6286310
Derrick B. Hager, PC
Derrick B. Hager, Attorney at Law
1525 Kautz Rd. Suite 400
West Chicago, IL 60185
630-587-7490
630-587-7493fax






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