UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF MICHIGAN
Hon. Steven W. Rhodes
REPLY BRIEF IN SUPPORT OF BELFOR USA GROUP, INC.’S MOTION TO
DISMISS DEBTOR’S BANKRUPTCY CASE PURSUANT TO 11 U.S.C. § 1307
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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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.
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.
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
For the reasons set forth above, Belfor respectfully requests that this Court grant its
Motion to Dismiss.
/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
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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