Predatory loan, Violations of Illinois Mortgage Foreclosure Law, Violations of Consumer Fraud and Deceptive Business Practice Act, Bankruptcy Fraud: Used in land grab, to take away property, without a default.
johngunartt@sbcglobal.net An individual, has been left without a lawyer, see items # 57 & 58 of website. Now attempting to protect his Rights, against this large bank and it's many high powered attorneys.
need:
attorney for legal malpractice and any attorney, advocacy group, concerned individuals, that care about, legality, right from wrong, citizens and constitutional rights, willing to assist in resolving fair treatment.
John Gunartt, a victim of fraud and bankruptcy fraud, his voluntary chapter 11 business, reorganization, no personal consumer debt, all credit card debt and personal home, mortgage debt, was business debt. His case was converted to a personal involuntary chapter 7 liquidation, on the same day of motion, without time allowed, for a written reply, before the order was issued. As a result, all property and assets were stolen, taken or lost, including savings and checking accounts, investment, IRA and retirement accounts, with penalties for early withdrawal. I was left without legal assistance, my personal residence of more than 20 years, of which 100% of it's equity of approximate $160,000.00, was taken out and put into rehab of the commercial property, was also foreclosed on.
HISTORY:
I was a self employed, small business person, working as an independent real estate appraiser and property manager/developer, which was my livelihood for more than 20 years.
As part of my livelihood, I also was the owner of an 18 unit apartment building, with it's land, being very much in demand. The building, consist of 3 different sections at: 5900-04 West Madison Street & 10-16 North Mayfield Avenue, Chicago, IL 60644. I purchased the property in 1997 with personal funds, with full ownership for more than two years, prior to any bank involvement. No banks or personal loans for rehab were involved, until November 1999, when I received the construction loan from Old Kent/Fifth Third Bank.
I spent an enormous amount of personal funds on the purchase, combined with payments to remove various liens, until clear title was acquired. I then hired an architect to produce plans and specifications, which allowed me to purchase the required expensive building permits.
I have, all of my adult life, for more than 30 years, had well managed financial standing, with good to excellent credit ratings.
My credit report, did not show any delinquencies or judgments to any creditors, through the date of filing the voluntary chapter 11 petition, case no. 05B-25498, on June 28, 2005.
The involuntary conversion, to a chapter 7 liquidation, took place on November 16, 2005, a full month after the latest reform laws had taken effect. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Public Law No. 109-8, 119 Stat. 23, April 20, 2005).
1.
The "As Is" estimated value of $1,700,000.00, is for the 18 unit brick property and land, which is very much in demand, it has 3 different sections, located at: 5900-04 W. Madison Street & 10-16 North Mayfield Avenue, Chicago, IL 60644. Consisting of 6 completed condo units, 3 completed commercial rental spaces, tenants with leases, were waiting to take possession and 9 other partially completed units.
2.There has been violations of my Constitutional Rights to take away my property without any legitimate reason:
3.Decisions made in court, were without due process, violations of Federal Rules of Civil Proceedure, no time was allowed for the debtor to file a written reply, with a defense before the order was issued, on the same day, to take away his property.
4.Violations of Civil Rights, the Equal Credit Opportunity Act, Fifth Third Bank, breached the construction contract, would not release the committed funds from the 2nd approved loan, for completion of the project. No written notice given, as to why the funds were not released, the funds were from an established revolving line of credit.
Catastrophic Events Created by the Bank, which led to Filing the Voluntary Chapter 11 Reorganization.
see In re Krohn, 886 F. 2d 123, 126 (6th Cir. 1989). Accord, First USA v. Lamanna (In re Lamanna), 153 F. 3d 1 (1st Cir. 1998).
5.Catastrophic events associated my construction loan, were created by Old Kent/Fifth Third Bank, for more than 4 years, which led me to filing a voluntary chapter 11 reorganization.
Violations of the Consumer Fraud and Deceptive Business Practice Act, 815 ILCS 505/
Creation of two separate predatory loans:
6.Original structure of the loan, Old Kent/Fifth Third Bank, agreed to finance my construction loan for the above stated property, the loan began November 10, 1999 through June 10, 2002. The borrower at closing paid a 1% fee of the principal amount of the loan, $5,060.00, for a 30 year mortgage commitment, prepaid fee for the first 6 months to start.
7.The commitment fee of $5,060.00, was paid to Alliance Funding/Superior Bank, as indicated by the forward commitment letter, dated November 08, 1999. The loan approval letter is from Old Kent/Fifth Third Bank, which is dated September 24, 1999.
8.The first promissory note, is from November 10, 1999, until January 10, 2001, the construction loan amount is $506,000.00. The fee payment of $5,060.00, was for a 6 month commitment, which should carry me through May 2000, although the Note reads from November 10, 1999 through January 10, 2001.
9.Work at the project began in November 10, 1999 through January 10, 2001. Old Kent/Fifth Third Bank, then advised me that I had to stop work, while a 2nd loan amount could be prepared for completion of the 2nd building.
10.Work at the project was stopped from January 10, 2001 through October 10, 2001. During the 9 month delay, I continued to pay each month, the prepaid interest on the principal amount of the loan, without any interruptions, no delinquencies..
11.In October 10, 2001, I was informed by the bank, that the 2nd loan amount of $154,000.00, had been approved to complete the 2nd building.
12.I was unaware on October 10, 2001, that the Modified Note, had changed the original structure of the loan.
13.The Modified Note, removed the 30 year mortgage and put in a balloon payment, for principal to be paid immediately, this was all completed with the use of an exculpatory clause. Repayment in the original structure of the loan, was to come from sales and rental of the completed project.
14.The bank, informed me, in November 2001, that I could start back to work at the project, the new loan amount had been approved for completion of the 2nd building. I went to various suppliers and purchased all the needed materials and supplies to complete the project.
15.Subcontractors returned to work and started to complete the 2nd building and storefronts. I later submitted to Fifth Third Bank, as previous, the contractor's sworn statement, affidavit, the compliance inspector's approved report for payment of work completed.
16.Fifth Third Bank, breached the written construction contract, would not release the payment for personal funds that I had spent on construction and payment to subcontractors. This was part of the catastrophic events, created by the bank, which led to filing the chapter 11 bankruptcy.
17.The bank, breached the construction contract and never released the 2nd committed loan amount of $154,000.00, for completion of the project, represented personal funds and work, that had already been installed.
18.The bank, received a huge benefit of the borrower's personal funds, labor, materials and supplies for work at the 2nd building, 100% completion of the 3rd section, the commercial spaces, after breaching the written construction contract and never releasing any new funds.
19.The bank, received 30 months of uninterrupted mortgage interest payments on the principal amount of the loan, approximately $3,000.00 per month times 30 months. Daily occupation, security, maintenance and upkeep, continued rehab of the project, huge payments for vacant building insurance, taxes and free labor.
19.June 10, 2002, Fifth Third Bank, informed the borrower, that he must now make full payment of the principal amount of $506,000.00 of the loan.
20.The borrower also was informed in June 2002, that Alliance Funding/Superior Bank, had filed for bankruptcy, about a year earlier in the life of the loan and I had lost the 30 year mortgage, original structure of the loan. No notice was given to the borrower, that any changes had taken place in the original structure of the loan. The bank continued to fund the project and accept monthly interest payments, without any interruption, during the entire 30 months.
21.Fifth Third Bank, then offered, after June 10, 2002, the borrower, a forbearance agreement, with a general release to the bank and it's associates, effective immediately on the date of signing. The borrower, would get a short unreasonable amount of time, with a cloud on the title, to complete the project, sell the units and pay the bank, $660,000.00, or the property would be returned to the bank, without filing a foreclosure.
Notice of Lis Pendens Filed:
22.A filed notice of lis pendens, by the bank, would make any sales or transfer of title impossible.
23.The 6 completed condo units, has been for sale and sold several times, by various Realtors, since 2001, no closings could be completed, due to cloud on the title.
Wrongful Foreclosure Filed:
Violations of the Illinois Mortgage Foreclosure Law, 735 ILCS 5/15, No Default, No Notice of Default.
24.On November 27, 2002, the bank filed a wrongful foreclosure, case no. 02CH-21536.
25.On March 21, 2005, the bank received a summary judgment of foreclosure, the borrower was then left without legal representation.
26.The borrower was then pro se, he went back into court, within 90 days, with an affidavit and other proofs.
Summary Judgment Vacated:
27.On June 07, 2005, the summary judgment of foreclosure was vacated, case no. 02CH-21536.
Catastrophic Events Created By The Bank:
28.For more than 4 years of catastrophic events that had been created by the bank, which led the borrower, to filing on June 28, 2005, a chapter 11 reorganization, case no. 05B-25498. The Plan, requested approximately one year, to sell the 6 completed condo units and pay all creditors 100%.
Without Due Process:
29.Violations of Federal Rules of Bankruptcy Procedure, the bank, filed an 8 day, short notice of motion, the property was secured and monitored, with two 24 hour monitoring systems, continued daily rehab, all taxes, insurance was paid. The voluntary chapter 11 reorganization, was converted on November 16, 2005, which was the same day of motion, an order also was issued on the same day, converting to an involuntary chapter 7 liquidation, without allowing time for a reply, and defense, from the defendant.
The debtor's debts were all business debt, with a profit motive, he did not have any personal consumer debt, to authorize conversion to an involuntary personal chapter 7 or appointment of the chapter 7 trustee.
30.Only the bank's appraised low value, was allowed, which made the estate appear to be worthless. This allowed conversion from the voluntary chapter 11 reorganization, with "As Is " assets of more than $1,700,000.00, to be converted to the involuntary chapter 7 liquidation and without due process.
31.This allowed appointment of a chapter 7 liquidation trustee and payment of the bank's padded false claim. Once appointment was made, the trustee, then determined that the property had a much higher value.
The bank, agreed to settle their claim, with the trustee, reducing it by more than $200,000.00, which is the excess amount that it has been padded, if the trustee, would drop any adversary claims or lawsuits that the debtor had against the bank.
The trustee and his law firm, could then self enrich themselves, based on another person's hard earned money, labor and assets. The claim is for his efforts to settle with the bank. see excess fee payments, items no. 54 and 55.
32.The trustee also filed a motion to dismiss the debtor's adversary/counterclaim, which occurred prior to the bankruptcy petition and was based on non-core bankruptcy, cause of action, with jurisdiction in State Court, the trustee did not have authority to do so.
see Salomon v. Kaiser (In re Kaiser ) 722 F. 2d 1574, 1582 (2d Cir. 1983); Wechsler v. Squadron, Ellenoff Plesent & Sheinfeld L.L.P., 201 B.R. 635 (S.D.N.Y. 1996).
Filing a False Proof of Claim, 18 U.S.C. 152/4:
33.The trustee proceeded to pay the bank's false proof of claim, that has been padded in an excess amount of more than $200,000.00. The bank;s proof of claim, contain hand written entry of fees, charges, interest doubled and other charges, without any authority for payment, no delinquencies, no judgment, no court order, no default. One of the trustee's duties is to check a claim for validity.
34.The bank's proof of claim is from the Summary Judgment of Foreclosure, received in State Court.
35.The Summary Judgment of Foreclosure was already ruled on, March 21, 2005, case no. 02CH-21536.
36.The Summary Judgment of Foreclosure was Vacated on June 07, 2005, case no. 02CH-21536.
37.The rest of the estate, has been paid as excessive fees to the trustee and his law firm.
38.No legitimate creditor, the owner or subcontractors, received any payments, for an excessive amount of work and material that was put into the project. Fifth Third Bank, breached the written construction contract, after work was completed.
Internet Name Smearing: Used for Defamation of Character, to Discredit and to Mislead. Attached and unrelated court cases, in an attempt to deceive.
Additionally, we all know, simply because, one has been found guilty, do not always prove, one is actually guilty. Especially if you are an underage minor, without proper legal representation.
39.Misleading, when the name; John Gunartt, a small independent business person, is Googled or Yahoo and entered into a search engine, false and misleading, negative information is associated with his and innocent family members name.
"Let he, who is free of sin, be the first to cast a stone?"
40.Misleading, most of the information on the internet, he and innocent family members, do not know of, he do not have anything to do with: any criminal activity, gangs, indigent, child support, professional license reprimand, foul and abusive language. Internet slander has helped to destroy his business, his livelihood.
Additional Misleading Internet Information:
1.bankrupt.com/TCR Public/050630mbx, 9 largest unsecured creditors.
41.Misleading, 9 largest unsecured creditors, this case was converted from a voluntary chapter 11 business, to a personal debt, involuntary chapter 7 liquidation, with substantial means to pay all creditors 100%, only time was needed. The debtor, did not have any personal debt, the credit card debt, was all business debt, which was dismissed under involuntary chapter 7 liquidation, as personal debt. The voluntary chapter 11 business plan, would pay 100% to all creditors, both secured and unsecured.
see items, # 61 through # 74.
2. see 2007 cv 04012-In re 800 South Wells Commercial LLC
select 1:2007cv02399-Gunartt v. Fifth Third Bank, Appellee: Fifth Third Bank, Trustee Norman Newman.
42.Misleading, I do not know of 800 South Wells Commercial LLC, website, but my name is associated with this company, when it is searched on the internet.
43.My Adversary Case No. 06 A 01157, was dismissed and Appealed to District Court, Case No. 1:2007cv02399, still pending. With a request for a jury trial, notice in the adversary complaint, that I was not in agreement with a final decision from the bankruptcy judge.
44.The adversary complaint is for non-core bankruptcy causes of action, caused in State Court, when Fifth Third Bank, breached the written construction contract and other violations which led to bankruptcy.
45.The cause of action, has nothing to do with bankruptcy law, they would survive whether there was a bankruptcy or not.
46.The trustee has no authority to dismiss the debtor's adversary complaint, which is non-core bankruptcy, cause of action. Jurisdiction for the cause of action committed by Fifth Third Bank, is with State Court.
Denied Substantial Means of my Proposed Plan under Chapter 11, to Pay all Creditors 100%, both Secured and Unsecured, none are delinquent.
A chapter 11 plan that offers the same proposal as a chapter 13 or chapter 7, cannot be denied by the creditor.
Violations of Bankruptcy Reform Laws, latest Public Law (No. 109-8, 119 Stat. 23, April 20, 2005).
47.No court time allowed for a written reply, to present the appraisals of the project, the 6 condo sales, the 3 rental storefronts, with leases and income, with the proposed Plan, which would have shown the true value.
48.The property was well maintained, with daily upkeep, all utilities was paid, well lit lighting fully secured with two 24 hour monitoring systems, all taxes, insurance and utilities were fully paid, prior to involvement, by the trustee.
Chapter 7 Trustee Conflict of Interest:
49.The chapter 7 trustee, do not meet the 1st requirement, for the appointment of a trustee, he is not a disinterested party.
50.The trustee admits in a written court reply, that his law firm has represented the purchaser in the past and presently represents an entity of the purchaser.
51.The "As Is" estimated value of the 18 unit property was worth $1,700,000.00, sales of the 6 condo units from one building section, was worth $840,000.00 to $900,000.00, income of $3,000.00, per month, from 3 completed storefronts. The 6 completed condo units, from one building, would pay any delinquent creditor, although there were none.
52.The trustee rejected much higher sales offers from the court appointed Realtor, hired to sell the 6 completed condo units.
52a.He then undersold, all 3 sections of the property, for much less than one section would have sold for, by the court appointed Realtor. The entire estate was undersold, by atleast $1,000,000.00 to someone that the trustee, admits in a reply, that his law firm, has represented in the past and presently represents an entity of the purchaser at the time of sale.
53.The property had been legally separated, each section had a separate legal description and separate tax numbers, to be sold separately.
Excessive Fee Payment To Trustee And His Law Firm:
see Boldt v. United States Trustee (In re Jenkins), 130 F. 3d 1335, 1342 (9th Cir. 1997).
54.The trustee and his law firm requested and received on December 06, 2006, excessive fees, the 1st fee amount of $90,715.00.
55.The trustee and his law firm's 2nd fee request was on December 18, 2007, in the amount of $53,654.50.
56.The debtor was advised by his attorney, to file a chapter 11 reorganization, as a small independent business person, he would be allowed court time to repay any bank payments.
57.The debtor's attorney, requested and was fully paid his fee in the amount of $5,000.00, prior to filing the chapter 11 petition. Once the fee was collected and the petition was filed, the debtor's attorney failed to present the chapter 11 plan, which was in his posession. (without a plan, there was no chance to succeed with a chapter 11). The "As Is " estimated value of the estate was $1,700,000.00, the value of the 6 completed condo units, would sell for $840,000.00 to $900,000.00. Monthly income, from 3 completed storefronts, that had approved leases and tenants waiting to take possession, was $3,000.00 per month.
57a.The debtor's attorney did not present to the court, the debtor's plan of reorganization, (which was given to him prior to filing the petition), which included approved leases for 3 storefronts, contracts of sold condo units.
57b.The debtor's attorney did not present to the court the debtor's 6 appraisals, that would show it's "As Is" estimate of value to be more than $1,700,000.00, without any delinquent or defaulted creditors or court judgments, that would require liquidation of one's assets to pay any creditors.
58.The trustee, on December 06, 2006, authorized additional payment in the amount of $12,977.67, from the post petition, post conversion, liquidated estate, to the debtor's attorney.
59.The debtor, had already paid his attorney, prior to filing the chapter 11 petition. The attorney's negligence is part of the reason why the case was converted. The debtor's attorney, did not challenge the case, for being converted to a chapter 7 personal bankruptcy, he did not present, the debtor's appraisals, to show a fair estimate of valure, with excessive value. The debtor, did not have any personal consumer debt, it was all business debt, with a profit motive. There were no delinquent creditors, as reported in his credit reports.
60.The debtor was in objection to any payments to anyone under the involuntary chapter 7 personal bankruptcy. The debtor had substantial means and was denied, under the voluntary chapter 11 reorganization, to pay all creditors 100%, only time was needed.
No Creditors or Debtor, Received any Payments:
61.No creditors, the debtor or subcontractors received any payments from the liquidated estate, which is the purpose of liquidation.
Data below, based on information received from the:
U.S. Department of Justice Chapter 7 Trustee's Handbook, Rules and Regulations To Be Followed.
Personal Debt:
62.The most common consumer debts are home mortgages, credit card debt and personal loans, the debtor did not have either.
see Wyman, A 707(b) Sampler, Norton Bankruptcy Law Adviser, Issue No. 5, page 2 (May 1994). Debt incurred for a business venture or with a profit motive is not consumer debt. see Cypher Chiropractic Center v. Runski (In re Runski), 102 F. 3d 744, 747 (4th Cir. 1996). Debt that is owed for income taxes is not consumer debt. see In re Westberry, 215 F. 3d 589, 591-94 (6th Cir. 2000).
63.When reviewing for consumer debt, the trustee should consider all listed debt, secured and unsecured, not just debt to be discharged. see Price v. U.S. Trustee (In re Price), 353 F. 3d 1135 (9th Cir. 2004).
64.The trustee should be aware that credit card debts may not in all instances constitute consumer debts.
65.When the credit transaction involves a profit motive, it is outside the definition of a consumer credit transaction.
66.Mortgage debt is considered a consumer debt, In re Kelly, 841 F. 2d 908, 915 (9th Cir. 1988), unless the proceeds are used for a business purpose. In re Funk, 146 B.R. 118 (D.N.J. 1992).
67.The trustee should be alert to residential mortgage borrowing that is used to finance business operations or investments and therefore, constitutes a non-consumer obligation.
No Personal Debt, only Business Debt:
68.The voluntary chapter 11, business debt, was converted on the same day of hearing, November 16, 2005, to an involuntary personal debt, chapter 7 bankruptcy.
69.The debtor, did not have any personal debt, all credit card use and residential mortgage debt, was for business use, there were no personal consumer debt loans.
70.The debts that are listed in the chapter 11 bankruptcy, are from credit cards and home mortgage, all are business debt. Each was used for rehab of his realty project, with a profit motive, which is not primary consumer debt.
71.All credit card debt, of approximately $78,000.00 that is listed in the voluntary chapter 11 reorganization, were lines of credit, established and used to rehab the commercial realty project, with a profit motive, no debt was for personal use.
72.The debtor purchased his personal residence in June 1984, with a cash payment, the entire amount of the 1st and 2nd mortgage debt listed with Fifth Third Bank and Washington Mutual Bank, consist of 100% of equity taken from the residence, approximately $140,000.00, was taken out and used to rehab the commercial realty project, with a profit motive
73.Mortgage equity and credit card lines of credit were used, paid off and reused throughout the life of the rehab process, beginning in November 1999 through March 2005, date of the summary judgment of foreclosure.
74.Debt that is owed for income taxes, is not consumer debt, see in Westberry, 215 F. 3d 589, 591-94 (6th Cir. 2000).
75.The debtor's credit card and residential mortgage debt, was not personal consumer debt. It was 100% business debt, used to rehab the commercial property, with a profit motive. My case was converted from a voluntary chapter 11, to chapter an involuntary 7 liquidation, without the debtor having any personal consumer debt, no delinquencies, no judgment, no default. see item # 62 for explanation of primary consumer debt.
