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UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

11-53376

Case No.
Chapter 13
Hon. Steven W. Rhodes

In re
MARILYN FESSLER

Debtor.

________________________________________________________________

REPLY BRIEF IN SUPPORT OF BELFOR USA GROUP, INC.’S MOTION TO
DISMISS DEBTOR’S BANKRUPTCY CASE PURSUANT TO 11 U.S.C. § 1307

INTRODUCTION

Throughout the Debtor’s Objection to Belfor USA Group, Inc.’s (“Belfor”) Motion to

Dismiss (“Objection”), the Debtor spends the majority of her time contending that: (i) Belfor did

not adequately complete its contract; (ii) Belfor hoodwinked the state court into almost getting a

personal judgment against her; (iii) Belfor’s claims have yet to be adjudicated against the Debtor;

and (iv) the Debtor would like an opportunity to defend Belfor’s claims on the merits. Quite

frankly, the Debtor’s opportunity to defend Belfor’s claim was at the scheduled hearing on

Belfor’s Motion for Contempt. The Debtor, instead of defending Belfor’s claim, filed her

bankruptcy petition the day before the hearing in the state court. By filing bankruptcy, the

Debtor’s automatic stay stopped the state court process and now, ironically, the Debtor claims

she never had the opportunity to litigate the claims against her. Such a claim is disingenuous. If

the Debtor would like such an opportunity, then Belfor’s Motion to Dismiss should be granted

and the parties should continue litigating this dispute in the Oakland County Circuit Court.

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ARGUMENT

A.

THE DEBTOR’S ATTEMPT TO REARGUE AND REVISIT THE STATE
COURT JUDGMENT PROVES THAT THE PARTIES’ DISPUTE
SHOULD BE BEFORE THE STATE COURT.

Throughout the Debtor’s Objection and Affidavit, the Debtor contends that “[a]t a

minimum, [she] is entitled to an opportunity to respond to the allegations against her and not to

be bound by a judgment in a case in which she was not a party. The law demands this

opportunity….” Objection, p. 8. The Debtor further contends that Belfor’s claim is invalid and

that “Ms. Fessler must be afforded the opportunity to defend these claims.” Id. at p. 12. The

purpose of Belfor’s Motion to Dismiss is to give the Debtor this opportunity – to continue this

two-party dispute in the Oakland County Circuit Court where it belongs. In that venue, she can

raise her objections and arguments with the Oakland County Circuit court to modify its order

and/or set it aside. Indeed, that is the proper place for her to raise such arguments, not here.

B.

THIS IS A TWO-PARTY DISPUTE: DEBTOR’S REFERENCE TO THE
PNC GUARANTY IS DISENGENOUS.

In an attempt to refute Belfor’s contention that this is a two-party dispute between the

Debtor and Belfor, the Debtor contends that her unknown debt with PNC Bank is the other

“reason” for filing bankruptcy. This contention is meritless. The PNC guaranty was entered into

forbearance in 2008 and will not expire until May, 2012. (Objection, Ex. E). Moreover, Debtor

has offered no evidence that PNC is foreclosing on the property, collecting under the guaranty or

is otherwise demanding payment of the guaranty. Indeed, the Debtor cannot even identify the

amount at issue, while at the same time claiming that the PNC Guaranty was a

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crucial factor in her determination to file bankruptcy1. A point she did not raise during her 341

meeting of creditors. Since Belfor was the only creditor knocking on the Debtor’s door, it is

clear that this is a two-party dispute between Belfor and the Debtor. Indeed, the Debtor spends

the majority of her Objection rehashing the state court judgment and requesting an opportunity to

respond to the litigation—the Debtor has such an opportunity in the state court action.

CONCLUSION

The facts are simple: Debtor filed bankruptcy the day before the Motion for Contempt

and the Debtor testified at her 341 Meeting that she filed bankruptcy as a direct result of Belfor’s

Motion for Contempt and that she was current with her other creditors. The Debtor’s sole

purpose in filing bankruptcy is clear: to use it as a sword to circumvent Belfor’s collection

efforts.

For the reasons set forth above, Belfor respectfully requests that this Court grant its

Motion to Dismiss.

Respectfully submitted,

/s/ Jonathan C. Myers
Jonathan C. Myers (P69972)
JAFFE RAITT HEUER & WEISS, P.C.
Attorneys for Belfor USA Group, Inc.
27777 Franklin Road, Suite 2500
Southfield, MI 48034
248-351-3000
[email protected]


1 Debtor’s assertion that “it is entirely disingenuous for Belfor to claim no knowledge of the
liabilities to PNC Bank…as PNC Bank intervened in the [State Court Action]” is without merit.
Objection, p. 10. PNC intervened in order to assert its mortgage interest in the subject property.
At no time did PNC identify that it had a guaranty with the Debtor.

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