Mark Jacobs v. Carol A. Marcus-Rehtmeyer , 784 F.3d 430 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1891
IN RE: CAROL A. MARCUS-REHTMEYER,
Debtor-Appellee,
APPEAL OF MARK A. JACOBS and
CHIVALRY CONSULTING, INC.,
Creditors-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13-C-3919 — Gary S. Feinerman, Judge.
____________________
ARGUED NOVEMBER 10, 2014 — DECIDED APRIL 28, 2015
____________________
Before WOOD, Chief Judge, and ROVNER, and HAMILTON,
Circuit Judges.
ROVNER, Circuit Judge. After a contractual relationship
went sour, an Illinois state court ordered the defendant-
appellee, Carol A. Marcus-Rehtmeyer to pay approximately
$168,000 dollars to the plaintiff-appellants, Mark Jacobs and
Chivalry Consulting, Inc. (Chivalry). When she failed to do
so, Chivalry issued a citation to discover assets under Illinois
2 No. 14-1891
law, but before the matter was resolved, Marcus-Rehtmeyer
filed a Chapter 7 petition for bankruptcy. Chivalry appeared
in the bankruptcy court to object to the discharge of the debt
owed to them, claiming that Marcus-Rehtmeyer had con-
cealed her assets and income during the citation proceed-
ings. The bankruptcy court denied Chivalry’s objection and
the district court affirmed the rulings of the bankruptcy
court. Chivalry appeals the district court’s ruling, and be-
cause we conclude that Marcus-Rehtmeyer concealed assets
with the requisite intent, we reverse.
I.
Chivalry hired Marcus-Rehtmeyer to develop and manu-
facture a fantasy board game that Jacobs invented. The two
parties entered into a contract, and Chivalry paid Marcus-
Rehtmeyer over $128,000, but the relationship deteriorated
and Marcus-Rehtmeyer never produced the game. Chivalry
sued Marcus-Rehtmeyer in Illinois state court for breach of
contract and won a judgment of $168,331.59, plus a later
award of $621.25 in costs, but Marcus-Rehtmeyer never paid.
Consequently, on October 12, 2010, Chivalry issued a cita-
tion to discover assets. The citation commanded Marcus-
Rehtmeyer to appear in court and stated:
YOU ARE COMMANDED to produce at the
examination (bring with you) all books, papers,
or records in your possession or over which
you have control, which may contain infor-
mation concerning the property or income of,
or indebtedness due judgment debtor and: see
attached RIDER TO CITATION TO
DISCOVER ASSETS
No. 14-1891 3
You are prohibited from making or allowing
any transfer or other disposition of, or interfer-
ing with, any property not exempt from the en-
forcement of a judgment therefrom, a deduc-
tion order or garnishment, belonging to the
judgment debtor or to which he or she may be
entitled or which may thereafter be acquired
by or become due him or her, and from paying
over or otherwise disposing of any moneys not
so exempt which are due or to become due to
the judgment debtor, until further order of the
court or the termination of the proceeding,
whichever occurs first.
(R. 356) (emphasis in original). The citation followed the re-
quirements of Illinois Supreme Court Rule 277 and Section
2-1402 of the Illinois Code of Civil Procedure.
The rider to the citation required that Marcus-Rehtmeyer
produce the following documents:
Any and all documents, whether printed,
handwritten, typed, drawn, sketched, printed
or recorded by any physical, mechanical, mag-
netic, optical, electronic, or electrical means
whatsoever, pertaining to, relating to and/or
referring to any and all real property, personal
property, tangible property and intangible
property in which the Judgment Debtor has or
claims an ownership interest, or had or
claimed an ownership interest in within the
last five years, whether individually, jointly,
4 No. 14-1891
severally, beneficially, contingently or expect-
antly and any and all real property, personal
property, tangible property and intangible
property owned by any trust, corporation,
partnership, limited partnership, limited lia-
bility partnership, sub-chapter “S” corpora-
tion, joint venture, sole proprietorship or other
such entity in which the Judgment Debtor has
or claims an ownership interest, or in which it
had or claimed an ownership interest in within
the last five years, whether individually, joint-
ly, severally, beneficially, contingently or ex-
pectantly.
(R. 357) (emphasis in original).
At the citation examination on November 4, 2010, Mar-
cus-Rehtmeyer testified that she had no ownership interest
in any real estate whatsoever, and specifically, that she was
not a signatory to the mortgage on her residence in
Wheaton, Illinois. She also testified that she had no owner-
ship interest in any securities, stocks, bonds or other such
assets. She denied that she was a shareholder of a corpora-
tion named Lorac & Cire, Inc., stating that she had owned
50% of the shares of Lorac & Cire at the time the corporation
was formed, but that her shares were given up for payment
to her attorney. Furthermore, she testified that she did not
have an ownership interest in any office or electronic
equipment, including computers. Finally, she testified that
she no longer had a personal checking account, that she
closed it about a month prior to the citation examination,
and that she had no interest in any savings accounts.
No. 14-1891 5
As for the required documents, the only documents Mar-
cus-Rehtmeyer brought with her in response to the docu-
ment request were copies of her individual tax returns for
the years 2006-2009. Consequently, Chivalry continued the
citation and filed a motion to compel Marcus-Rehtmeyer’s
production of the required documents. On December 7,
2010, the state court ordered Marcus-Rehtmeyer to produce
copies of all documents described in the citation and, if she
had no such documents, an affidavit as to that fact.
As of January 4, 2011, Marcus-Rehtmeyer still had not
complied. Chivalry filed a renewed motion to compel, and
the next day the state court ordered her to produce all the
documents required by the citation order by January 13,
2011, and continued the matter until February 10, 2011. On
January 13, 2011, Marcus-Rehtmeyer produced a few docu-
ments responsive to the rider. On February 10, 2011, the
state court again ordered Marcus-Rehtmeyer to produce all
documents responsive to the citation by February 24, 2011.
On February 24, Marcus-Rehtmeyer filed a response in
which she stated that there were no documents relating to
checking and savings accounts and that she had no mort-
gage or deeds of trust documents because she held none.
On May 24, 2011, Chivalry filed a motion for a rule to
show cause arguing that Marcus-Rehtmeyer did not produce
all of the documents required of her, that she appeared to be
concealing documents about bank accounts and wages, that
she had provided inaccurate information, and had made it
difficult to access information relating to her assets. The
court scheduled a hearing for June 30, 2011, but the day be-
fore the hearing, on June 29, 2011, Marcus-Rehtmeyer skirted
the hearing by filing a bankruptcy petition pursuant to
6 No. 14-1891
Chapter 7 of the United States Bankruptcy Code, seeking to
discharge all of her debts.
Some documents filed in the bankruptcy court directly
conflicted with information Marcus-Rehtmeyer had provid-
ed in the state court pursuant to the citation. For example, in
the bankruptcy court, Marcus-Rehtmeyer stated that she
held real property—her personal residence in Wheaton, and
that she and her husband were co-debtors on two mortgages
on the property held by Chase Bank. She also listed as per-
sonal property, “100% of the common stock of Lorac & Cire,
Inc.,” and $500 worth of “desks, monitors, computer, and
filing cabinets.” Finally, her Statement of Financial Affairs
filed with the bankruptcy court listed income received as
$13,541.65 in 2010 and $25,000.00 in 2011, both from SciTech
Museum.
Chivalry appeared in the bankruptcy court to object to
Marcus-Rehtmeyer’s discharge of her to debt to Chivalry,
pursuant to 11 U.S.C. § 727(a)(2)(A) which disallows a dis-
charge where “the debtor, with intent to hinder, delay, or
defraud a creditor or an officer of the estate charged with
custody of property under this title, has transferred … or
concealed, or has permitted to be transferred … or concealed
property of the debtor, within one year before the date of the
filing of the petition.” Specifically, Chivalry argued that
Marcus-Rehtmeyer had concealed information relating to
income and property in (1) her ownership of her Wheaton
residence, (2) her ownership interest in Lorac & Cire, Inc.,
(3) her income from employment at SciTech museum; and
(4) her ownership interest in computers and electronic
equipment. The bankruptcy court conducted a trial on Feb-
No. 14-1891 7
ruary 14, 2013, and denied Chivalry’s objections the next
day.
During the bankruptcy trial, Marcus-Rehtmeyer testified
that when she and her husband acquired the Wheaton resi-
dence, they did so as joint tenants. Marcus-Rehtmeyer ad-
mitted that previously, during the citation examination, she
had stated that she did not have an ownership interest in
any real estate and that she was not a signatory to the mort-
gage on her residence. She also admitted that she had not
produced any documents pursuant to the citation order
demonstrating who was, in fact, a signatory on the mort-
gage. To explain the discrepancy between her testimony at
the bankruptcy proceedings and the citation proceedings,
she stated that when she and her husband refinanced the
property in 2008, she believed that only her husband had
signed the refinancing documents. She further alleged that
when she called Chase Bank to inquire about the mortgage,
a representative of the bank refused to speak with her about
it, claiming that only her husband was named on the ac-
count.
The bankruptcy court accepted Marcus-Rehtmeyer’s ex-
planation and held that Chivalry failed to establish by a pre-
ponderance of the evidence that Marcus-Rehtmeyer con-
cealed the property with an intent to defraud. It did so, in
part, because Marcus-Rehtmeyer’s lawyer had written to
Chivalry on May 12, 2011, stating that he had previously
provided the deed to the Wheaton property to Chivalry’s
counsel. 1 Chivalry denied receiving it, but in any event, the
1 There is contradictory evidence as to whether Marcus-Rehtmeyer did
indeed provide the deed. In her brief, Marcus-Rehtmeyer claims, “Ms.
Koleta, one of Chivalry’s attorneys, in her testimony, admitted that it
8 No. 14-1891
bankruptcy judge accepted the May 12, 2011 letter as evi-
dence that Marcus-Rehtmeyer did not have an intent to de-
fraud and that Chivalry, had it not received the deed, had
notice that such a deed existed and was publicly available.
Marcus-Rehtmeyer also admitted during the bankruptcy
trial that despite stating at her citation examination that she
did not own shares of Lorac & Cire, she did, in fact, own
100% of the common stock. She explained the discrepancy
by noting that, at the time of the citation examination, she
earnestly believed she did not own shares of the common
stock of Lorac & Cire because she transferred them to her
attorneys as payment for legal services. Her attorney later
revealed, however, that Marcus-Rehtmeyer assigned the
shares as collateral for a promissory note given to her attor-
neys, and not as an outright transfer.
According to Marcus-Rehtmeyer’s filings, immediately
following the November 4, 2010 deposition for the citation,
Marcus-Rehtmeyer’s attorney, Douglas Tibble, questioned
the accuracy of her answers about her ownership interest in
her house and the Lorac & Cire stock. He promised Marcus-
was possible that the deed was tendered to her in open court.” Appellee
Brief at 19 (citing R. 952, p. 23). The page she cites of the record does not
support that statement. In fact the pages that precede and follow the cit-
ed page indicate that Ms. Koleta testified that she did not receive a deed
from Marcus-Rehtmeyer, and that all documents received by the firm
were immediately Bates stamped and filed in a manner designed to pre-
vent loss and misplacement. When pressed as to whether the Bates
stamping would guarantee that a document could not be misplaced or
mislaid, Ms. Koleta admitted that it was not a 100% guarantee. The only
evidence that Marcus-Rehtmeyer provided a deed is from another letter
dated May 11, 2011 in which her attorney, Douglas Tibble, claims that he
previously sent the deed to the plaintiffs. (R. 752).
No. 14-1891 9
Rehtmeyer that he would research the matter and send
Chivalry any documents he had. On March 3, 2011, Tibble
filed a formal response to the citation production request
stating “Rehtmeyer owns 50% of the shares of Lorac & Cire,
Inc. The stock certificates is (sic.) currently cannot be located.
Rehtmeyer owns 100% of the shares of Rehtmeyer, Inc. The
stock certificate is (sic) currently cannot be located.” (R. 742).
The bankruptcy court credited Marcus-Rehtmeyer’s tes-
timony that she believed she had transferred her shares of
the stock to her attorney, Tibble, as payment for unpaid at-
torney’s fees. The bankruptcy court noted that Marcus-
Rehtmeyer’s formal response of March 3 (see supra) clearly
stated that Marcus-Rehtmeyer owned the shares. It further
noted that Tibble’s March 25, 2011 letter had put Chivalry on
“inquiry notice” regarding her ownership interest in the
stock shares, although that explanation is harder to grasp.
The March 25, 2011 letter stated only that Tibble claimed he
“provided to you in court all of the corporate books, records
and documents we have of Lorac & Cire, Inc.” (R. 750). The
bankruptcy court accepted this disclosure as sufficient de-
spite the fact that it came long after the original November 4,
2010 deadline, and after Marcus-Rehtmeyer had ignored or-
ders requiring the documents or information by December
21, 2010, January 13, 2011, and February 24, 2011.
The district court, when reviewing the bankruptcy
court, concluded,
[A]fter reviewing the pertinent portions of the
record, this court finds that the bankruptcy
court’s credibility findings in Rehtmeyer’s fa-
vor and its bottomline conclusion that she did
not subjectively intend to hinder, delay, or de-
10 No. 14-1891
fraud Plaintiffs with respect to the Wheaton
property and the Lorac & Cire shares, while
not the only permissible conclusion that a ra-
tional factfinder could have drawn, was a per-
missible conclusion.
In re Marcus-Rehtmeyer, No. 13 C 3919, 2014 WL 1244055,
at * 3 (N.D. Ill., March 24, 2014) (emphasis in original), citing
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575
(1985) (“When a trial judge’s finding is based on his decision
to credit the testimony of one of two or more witnesses, each
of whom has told a coherent and facially plausible story that
is not contradicted by extrinsic evidence, that finding, if not
internally inconsistent, can virtually never be clear error.”);
In re Generes, 69 F.3d 821, 825 (7th Cir. 1995) (declining to
disturb the credibility determinations of the bankruptcy
court where the debtor presented no extrinsic evidence that
would undermine the trial court’s decision to choose the
creditor’s version of events over the debtor’s); In re Pearson
Bros. Co., 787 F.2d 1157, 1162 (7th Cir. 1986) (“the bankruptcy
judge’s determination ... was based upon the conflicting tes-
timony of two witnesses and must be upheld if the testimo-
ny accepted by the trier of fact was coherent, facially plausi-
ble and uncontradicted by documentary or objective evi-
dence”).
On appeal, we apply the same standard as the district
court, reviewing the bankruptcy court’s factual findings for
clear error and the legal conclusions of both the bankruptcy
court and the district court de novo. In re Mississippi Valley
Livestock, Inc., 745 F.3d 299, 302 (7th Cir. 2014). Whether a
debtor possessed the requisite intent to defraud is a question
of fact, which is subject to the “clearly erroneous” standard
No. 14-1891 11
of review. In re Davis, 638 F.3d 549, 553 (7th Cir. 2011). We
review de novo, however, the lower courts’ interpretation of
state law. James Michael Leasing Co. LLC v. PACCAR, Inc., 772
F.3d 815, 820 (7th Cir. 2014).
The district court’s lukewarm acceptance of the bank-
ruptcy court‘s findings is no surprise. Given the contradicto-
ry revelations about the assets in the citation versus the
bankruptcy proceedings and the reticence of Marcus-
Rehtmeyer to disclose relevant documents after repeated
court orders, the district court’s skepticism is well-founded.
It seems that Marcus-Rehtmeyer’s explanations would cause
even the most forgiving of adjudicators to furrow his brow.
Why, for example, would it take Marcus-Rehtmeyer from
October until December to locate the deed to her house and
forward it to Chivalry? And when Marcus-Rehtmeyer testi-
fied that she transferred her stock in Lorac & Cire to her at-
torney, why would her attorney to whom she allegedly
transferred those very stocks, and who was sitting at the
very same table at the examination, not have immediately
corrected the mis-information, or at the very least called a
recess to investigate? And why would it have taken him
from November 4, 2010, until March 3, 2011 (and four court
orders) to file an answer clarifying that Marcus-Rehtmeyer
did, in fact, own the shares of Lorac & Cire stock. Marcus-
Rehtmeyer’s arguments are hard to digest. Nevertheless, the
district court’s respect for the bankruptcy court’s credibility
assessments and factual determinations was legitimate. This
court might view with skepticism Marcus-Rehtmeyer’s con-
fusion about whether she owned the Wheaton property and
the Lorac & Cire shares, but the bankruptcy court heard all
of the testimony and was in the best position to assess Mar-
cus-Rehtmeyer’s credibility, and it certainly was not outside
12 No. 14-1891
of the realm of reason that Marcus-Rehtmeyer was confused
about the ownership of her home and the stocks from her
defunct company. The district court was correct to defer to
the bankruptcy court’s determination of credibility and fac-
tual findings. First Weber Group, Inc. v. Horsfall, 738 F.3d 767,
776 (7th Cir. 2013).
During the bankruptcy trial, Marcus-Rehtmeyer also
admitted that information in her bankruptcy petition regard-
ing personal property such as computer equipment and of-
fice furniture conflicted with information she provided in
her citation examination. In the latter, she specified that she
owned no such equipment but the bankruptcy petition listed
$500 worth of such items. She testified that the equipment
listed on the bankruptcy schedules was that of Rhetmeyer,
Inc., a now defunct corporation. The bankruptcy court found
that Marcus-Rehtmeyer’s testimony that the equipment
listed on the bankruptcy schedules belonged to Rehtmeyer,
Inc. was consistent with her testimony at the citation exami-
nation. The district court did not make any of its own specif-
ic findings regarding the computer equipment, and Chivalry
does not pursue this matter on appeal. See Appellants’ Brief
at 22.
Finally, the bankruptcy court explored the question of
Marcus-Rehtmeyer’s salary from her employment as acting
director of SciTech Museum. Marcus-Rehtmeyer began
working for SciTech in 2010. She stated in her testimony be-
fore the bankruptcy court that her annual salary was $50,000,
and that she received $13,541.65 from SciTech in 2010,
$25,000 in 2011, and that the compensation was paid by
check in various installments. This testimony was consistent
with the disclosures she made in her Statement of Financial
No. 14-1891 13
Affairs in her bankruptcy petition. Neither party seems to be
able to articulate when Marcus-Rehtmeyer began her em-
ployment, when SciTech was obligated to pay her, and on
what dates they did, in fact, pay her. Ordinarily this type of
employment income would be the first and easiest target for
discovery in a citation to discover assets. The fact that the
details about such an obvious and traceable asset, such as a
check, are still unknown at this point in the litigation (after
traveling through state court and three layers of federal
courts) in and of itself certainly suggests that Marcus-
Rehtmeyer was not forthcoming in disclosing her assets. We
need not rely on this alone, however, to support a finding
that Marcus-Rehtmeyer concealed this asset with the intent
to hinder, delay or defraud her creditors.
Marcus-Rehtmeyer testified at the bankruptcy hearing
that she opened a new bank account and deposited the
checks from SciTech into that account. (R. 828). She also testi-
fied that she opened the bank account “around the date that
[she] first got a check.” Id. She later testified that she opened
the account with “Old Second Bank.” (R. 830). Marcus-
Rehtmeyer did not produce any documents at the citation
examination on November 4, 2010, reflecting any agree-
ments with SciTech, any receipts for payment, any cancelled
checks, or any bank accounts. Nor did she ever produce any
other documents of any kind that reflected her income from
SciTech. Marcus-Rehtmeyer testified that she received a W-2
from SciTech sometime in 2011, but never produced a copy
of that W-2.
Nevertheless, the bankruptcy court concluded that Chiv-
alry did not meet its burden of proving by a preponderance
of the evidence that Marcus-Rehtmeyer intended to conceal
14 No. 14-1891
her employment with SciTech. The bankruptcy court accept-
ed Marcus-Rehtmeyer’s testimony that she could not recall
when payments were made to her and how much those
payments were, and concluded, therefore, that it was possi-
ble that, at the date of the citation proceeding, she had not
received any income from SciTech at all. 2 The bankruptcy
court also accepted Marcus-Rehtmeyer’s testimony that, alt-
hough SciTech agreed to pay her an annual salary of $50,000,
the museum was often short on funds and therefore did not
pay her all of her compensation for 2010 and did not pay her
bi-weekly as it was supposed to. The bankruptcy court con-
cluded that Chivalry had failed to produce evidence that she
received any payments before the November 4 citation ex-
amination, and that it therefore failed to establish by a pre-
ponderance of the evidence that Marcus-Rehtmeyer con-
cealed her employment with SciTech.
The district court agreed with the bankruptcy court’s
conclusions, also limiting its review to what assets Marcus-
Rehtmeyer held at the time of her citation examination. The
district court stated, “The evidence did not compel the bank-
ruptcy court to conclude that Rehtmeyer received income
2 We note that at the time of the citation examination there were only 57
days (8 weeks) remaining in 2010. At a salary of $50,000 per year, a total
payment of $13,541.65 would indicate that Marcus-Rehtmeyer had
worked for 14 weeks in 2010. If she was, in fact, underpaid as she claims,
then it is likely she worked more than 14 weeks. Although it was certain-
ly possible that SciTech made all of its payments in the last 57 days of the
year, it seems unlikely. And in any event, if Marcus-Rehtmeyer was
working during that time and SciTech owed her money, Marcus-
Rehtmeyer was required to disclose that expectant interest in response to
the citation to discover assets. See R. 357.
No. 14-1891 15
before her citation examination on November 4, 2010.” Mar-
cus-Rehtmeyer, 2014 WL 1244055 at *4 (emphasis ours).
Marcus-Rehtmeyer, however, most certainly had a duty
to disclose any payment she received from SciTech whether
she received it before or during the pendency of the citation.
Indeed, the very purpose of a citation to discover assets is to
allow a winning litigant to whom money is owed to find as-
sets when the losing party refuses to pay. 735 ILCS 5/2-
1402(a); Shipley v. Hoke, 22 N.E.3d 469, 471 (Ill. App. 4 Dist.,
2014) (“Supplementary proceedings allow a judgment credi-
tor to examine the judgment debtor or third parties to dis-
cover assets belonging to the judgment debtor that may be
used to satisfy the judgment. Such proceedings are com-
menced by the service of a citation—issued by the clerk at
the judgment creditor’s request—upon the judgment debtor
or a third party.”) It would be nonsensical then, to allow a
judgment debtor, like Marcus-Rehtmeyer, to avoid the dis-
covery of assets by merely stating that she could not recall
precisely when she received particular assets, or that she did
not receive the assets by the time the citation was first is-
sued.
The nature of the proceedings themselves dictate that
Marcus-Rehtmeyer had a continuing duty to disclose her as-
sets up until the time that the citation was terminated. First,
the proceedings begin at the moment the clerk issues the
service of citation:
A judgment creditor … is entitled to prosecute
supplementary proceedings for the purposes of
examining the judgment debtor or any other
person to discover assets or income of the
debtor not exempt from the enforcement of the
16 No. 14-1891
judgment … and of compelling the application
of non-exempt assets or income discovered to-
ward the payment of the amount due under
the judgment. A supplementary proceeding
shall be commenced by the service of a citation
issued by the clerk.
735 ILCS 5/2-1402(a).
Once the citation is served on the judgment debtor, a lien
is created in favor of the judgment creditor for all personal
property that the debtor has or acquires by the time the
court issues a disposition:
(m) The judgment or balance due on the judg-
ment becomes a lien when a citation is served
in accordance with subsection (a) of this Sec-
tion. The lien binds nonexempt personal prop-
erty, including money, choses in action, and ef-
fects of the judgment debtor as follows:
(1) When the citation is directed against
the judgment debtor, upon all personal
property belonging to the judgment
debtor in the possession or control of the
judgment debtor or which may thereaf-
ter be acquired or come due to the
judgment debtor to the time of the dis-
position of the citation.
735 ILCS 5/2-1402(m) (emphasis ours). The wording of
the citation itself also made clear that any interest in assets
whether contingent or expectant, must be disclosed. (R. 357)
(“Any and all documents … pertaining to, relating to and/or
referring to any and all real property, personal property,
No. 14-1891 17
tangible property, intangible property, in which the Judg-
ment Debtor has or claims an ownership interest … whether
… contingently or expectantly.”) Furthermore, any transfers
of funds after receipt of the citation violates the citation lien
unless the court gives permission for disbursement. 735 ILCS
5/2-1402(f). City of Chicago v. Air Auto Leasing Co., 697 N.E.2d
788, 791 (Ill. App. Ct. 1998). Thus it is of no moment that
Marcus-Rehtmeyer may not have had assets or known the
extent of them at the date of the citation examination. Both
the bankruptcy court and the affirming district court made a
legal error in the application of Illinois law by looking only
to what Marcus-Rehtmeyer owned or knew about at the date
of the citation examination. Both courts erred, therefore, by
accepting her defense that because SciTech did not pay her
all of her compensation in 2010 and she could not recall
when SciTech paid her, she may not have been paid by the
date of the citation examination on November 4, 2010. The
lower courts should have considered all payments made to
Marcus-Rehtmeyer until the citation expired. Marcus-
Rehtmeyer cannot avoid her legal obligation to disclose doc-
uments by claiming ignorance of the law.
Marcus-Rehtmeyer argues that even if she had such a
continuing obligation, Chivalry cannot prove that she had
the requisite intent to hinder, delay or defraud a creditor. See
11 U.S.C. § 727(a)(2)(A). Intent is a question of fact, but we
think that even under the clearly erroneous standard of re-
view, no reasonable fact-finder could have found that Mar-
cus-Rehtmeyer did not have the intent to either hinder, de-
lay, or defraud her creditor Chivalry. See Davis, 638 F.3d at
553. Marcus-Rehtmeyer asserts in her defense that she could
not have known that she was required to disclose her
SciTech income, as the only mention of “income” was in
18 No. 14-1891
small print on the first page of the citation and that a specific
category for employment or income did not appear in the
rider to the citation. She also claims that she was not asked
any questions about her income or employment at her cita-
tion examination. Given the purpose and name of the “cita-
tion to discover assets,” it belies reason to think that anyone,
particularly a person represented by counsel, would think
that she need not disclose employment or associated income
as an asset. Moreover, how could Chivalry have asked Mar-
cus-Rehtmeyer about her income from an employer it knew
nothing about? Marcus-Rehtmeyer never disclosed any W-2
forms, contracts, agreements, checks or pay advices from
SciTech. Although Marcus-Rehtmeyer stressed that she dis-
closed her tax returns from 2006 through 2009, she never
disclosed her 2010 tax returns which were the most relevant
for divulging monies paid by SciTech.
But if common sense did not dictate the disclosure, the
explicit language of the citation surely did. The requirement
to produce documents relating to property and income was
not merely mentioned in fine print, as Marcus-Rehtmeyer
argues, but appeared on the very face of the citation follow-
ing the bold words, “YOU ARE COMMANDED to produce
. . .records … concerning the … income” of the debtor. (R.
356). It is difficult to imagine a more broadly worded request
than that on the face of the citation and the rider. The face of
the citation requires “all books, papers or records in your
possession or over which you have control, which may con-
tain information concerning the … income of or indebted-
ness due the judgment debtor.” (R. 356) (emphasis ours). The
rider required
No. 14-1891 19
Any and all documents, whether printed,
handwritten, typed, drawn, sketched, printed
or recorded by any physical, mechanical, mag-
netic, optical, electronic, or electrical means
whatsoever, pertaining to, relating to and/or
referring to any and all real property, personal
property, tangible property and intangible
property in which the Judgment Debtor has or
claims an ownership interest, or had or
claimed an ownership interest in within the
last five years, whether individually, jointly,
severally, beneficially, contingently or expect-
antly.
(R. 357) (emphasis ours). Furthermore, the specific examples
in the rider included not only federal and state income tax
returns, including 1099 and W-2 forms, but also commercial
paper, which would have included the checks she received
from SciTech. 3 Finally, the rider specifically stated “Those
documents include, but are not limited to or by, the follow-
ing and any and all documents pertaining to, referring to,
relating to, evidencing and/or supporting the following:”
(R. 357). Marcus-Rehtmeyer was represented by counsel, a
profession that well-understands the meaning of “including
but not limited to” language.
Marcus-Rehtmeyer argues in her brief on appeal that at
the close of her citation examination, when the matter was
3 If Marcus-Rehtmeyer could not locate the checks, she could have re-
quested copies of them from SciTech. There was no testimony that Mar-
cus-Rehtmeyer made any attempt to find evidence of the checks or pay-
ment disbursed.
20 No. 14-1891
continued due to her failure to produce certain documents,
the only documents requested thereafter “’that should have
been produced’ were records pertaining to Carol’s account
at American Chartered Bank, the mortgage on her house,
and her car loan,” and in a follow up conversation, a copy of
a past judgment order entered in a case filed against her by
American Express. Marcus-Rehtmeyer’s Brief at 5. See also id.
at 29-30. This argument is blatantly false. In a court order
dated December 7, 2010, the court ordered Marcus-
Rehtmeyer to produce “all documents described in the cita-
tions to said defendants by Dec 21, 2010. If there are no doc-
uments responsive to any specific request, defendants shall
provide an affidavit as to that fact, also by Dec. 21, 2010.”
(R. 403). 4 The request was clear and yet that date came and
went without compliance. After a renewed motion to com-
pel, the court issued yet another order, on January 5, 2011,
again ordering Marcus-Rehtmeyer to produce “all docu-
ments required by the citations” by January 13, 2011.
(R. 404). And then, once again, in an order dated February
10, 2011, the court ordered Marcus-Rehtmeyer to produce
“all documents responsive to their citations on or before
February 24, 2011.” (R. 405). Marcus-Rehtmeyer cites a letter
from Chivalry’s counsel to Marcus-Rehtmeyer’s counsel
claiming that the documents requested were limited to a
named few. Once again this is false. The letter from Chival-
4 The state court orders included in the record were neither signed nor
dated. This court was able to retrieve the final signed and dated orders
from the Circuit Court of DuPage County, which are identical to the or-
ders in the record in all manner, except that they also include the date
and signature of the circuit court judge. The dates we use are from these
final signed and dated orders.
No. 14-1891 21
ry’s counsel to Marcus-Rehtmeyer’s counsel requested that
he forward within ten days, “[a]ll documents Carol Reht-
meyer and Rehtmeyer, Inc. were required to produce at the
citation proceeding per the Rider to the Citation to Discover
Assets, including but not limited to, the following:” (R. 384).
As we have just explained the citation and its rider required
all documents related to income. Marcus-Rehtmeyer’s ar-
gument that the documents requested were limited to a few
specific documents about which Chivalry inquired at the ex-
amination is clearly and unequivocally incorrect.
The citation could not have been more clear that it re-
quired federal and state tax returns including W-2 and 1099
forms, yet Marcus-Rehtmeyer never disclosed her W-2 forms
or any other documentation that would have disclosed the
SciTech income and what became of it, despite the fact that
she testified that she indeed received a W-2 for 2010 some-
time in 2011. (R. 891-92). 5 Recall that the citation to discover
assets was issued on October 12, 2010 and terminated when
she filed bankruptcy on June 29, 2011. We can assume, based
on an employer’s legal obligation, that she received the W-2
by the end of January 2011, but in any event, surely she had
5 The bankruptcy court stated in its oral opinion, that Marcus-Rehtmeyer
“did not recall receiving a W-2 or 1099 form for income tax purpose. This
statement, however, is incorrect. At the bankruptcy trial, Marcus-
Rehtmeyer testified as follows:
Q (by counsel for Chivalry): When did you get a W-2 from SciTech?
A (by Marcus-Rehtmeyer): It was after the next year, so …
Q: Sometime in 2011?
A: Yes
(R. 891-92)
22 No. 14-1891
it by the time the citation proceedings terminated at the end
of June 2011.
Marcus-Rehtmeyer did not disclose assets from SciTech
at the citation examination; she did not do so after a motion
to compel was filed on December 3, 2010; she did not do so
after the court subsequently, on December 7, ordered her to
produce all documents; she did not do so after a second mo-
tion to compel and subsequent order on January 5, 2011; nor
did she do so after the court issued a nearly identical order
on February 10, 2011, which clearly would have encom-
passed any assets she obtained in 2010. She did not do so at
any time before the citation terminated with the filing of the
bankruptcy petition.
It is uncontroverted that Marcus-Rehtmeyer had received
or was receiving compensation from SciTech during the
course of the citation to discover assets, and that she did
something with that money. Marcus-Rehtmeyer also re-
ceived $25,000 from SciTech in 2011. To the extent she re-
ceived any of this income in the first six months of 2011 (and
it seems logical to assume that SciTech would not have gone
six months without paying her), these funds also should
have been disclosed.
And although much ado was made of the Old Second
National Bank and whether an account was opened there
before or after the citation proceedings terminated, the fact
of the matter is that there is no doubt that Marcus-
Rehtmeyer received compensation from SciTech. She either
deposited the money in some bank somewhere, or she trans-
ferred or disposed of the assets during the pendency of the
citation proceeding in violation of state law and the state
court’s order which clearly stated,
No. 14-1891 23
You are prohibited from making or allowing
any transfer or other disposition of, or interfer-
ing with, any property not exempt from the en-
forcement of a judgment therefrom, a deduc-
tion order or garnishment, belonging to the
judgment debtor or to which he or she may be
entitled or which may thereafter be acquired
by or become due him or her, and from paying
over or otherwise disposing of any moneys not
so exempt which are due or to become due to
the judgment debtor, until further order of the
court or the termination of the proceeding,
whichever occurs first.
(R. 356); 735 ILCS 5/2-1402(f).
The existence or not of an Old Second National Bank ac-
count is a distraction. Marcus-Rehtmeyer received money
but did not report it to the Circuit Court of DuPage County
and has not, to this day, accounted for it in any manner.
This should end the matter regarding the Old Second Na-
tional account, but even if we were to delve further, the evi-
dence of concealment only grows deeper. At the citation ex-
amination, Marcus-Rehtmeyer testified that she no longer
had a personal checking account, that it was closed about a
month prior to the examination, and that she had no interest
in any savings accounts. (R. 54-56). At the bankruptcy hear-
ing, Marcus-Rehtmeyer testified for the first time, that she
opened a checking account around the time she received her
first check from SciTech (sometime in 2010) and that she de-
posited the SciTech checks into her checking account (R.
828). This began the rigmarole about whether Marcus-
Rehtmeyer had an account at Old Second National Bank at
24 No. 14-1891
the time of the citation. During post-trial motions before the
bankruptcy court, Marcus-Rehtmeyer filed two affidavits
purporting to establish that she did not open an account at
Old Second National Bank until one month after she filed
her bankruptcy petition.
The Old Second National Bank account is a red herring
and diverted attention away from the real questions which
were (1) what happened to the money Marcus-Rehtmeyer
received from SciTech that she stated she placed into a bank
account around the time she received it and (2) why was it
not disclosed? If Marcus-Rehtmeyer opened a checking ac-
count in 2010, she either did so before the citation examina-
tion on November 4, 2010, and failed to disclose its existence,
or she opened it after November 4, 2010, but before the end
of the year when her obligations to disclose under the cita-
tion were still ongoing. When and whether she opened a
particular account at Old Second National Bank of Aurora is
irrelevant. The only relevant question is why the income
from SciTech, that all parties agree she earned, was not dis-
closed.
Concealment “includes preventing discovery, fraudu-
lently transferring or withholding knowledge or information
required by law to be made known.” In re Scott, 172 F.3d 959,
967 (7th Cir. 1999). Marcus-Rehtmeyer had a duty to disclose
the SciTech compensation. Our explanation above makes
clear that the information was “required by law to be made
known.” Id. No reasonable debtor (and particularly one rep-
resented by counsel) could conclude that she need not dis-
close employment income in a citation to discover assets. For
many debtors, employment income is the primary asset a
creditor can reach. And if common sense eluded both Mar-
No. 14-1891 25
cus-Rehtmeyer and her counsel, the explicit language from
the citation and the rider, and Illinois law on supplementary
proceedings made clear that she had this duty. There can be
no other conclusion than that Marcus-Rehtmeyer concealed
her SciTech income with an intent to hinder, delay, or de-
fraud Chivalry. See 11 U.S.C. § 727(a)(2)(A).
The district court, like the bankruptcy court before it,
misunderstood the time frame to which it should have
looked. The obligation to disclose assets continued during
the entire pendency of the citation to discover assets. Both
the district court and the bankruptcy court therefore misap-
plied state law by looking only at what assets the plaintiffs
could prove that Marcus-Rehtmeyer held at the time of the
November 4, 2011 citation examination, and clearly erred by
concluding that Marcus-Rehtmeyer did not conceal her in-
come from SciTech with the intent to hinder, delay or de-
fraud its creditor, Chivalry. The judgment of the district
court must be reversed.
II.
Based on Marcus-Rehtmeyer’s bankruptcy trial testimo-
ny about the Old Second National Bank, Chivalry filed post-
trial motions. The first motion requested relief under Federal
Rule of Civil Procedure 59(a)(2) and/or to amend the judg-
ment under Rule 59(e) based on Marcus-Rehtmeyer’s une-
quivocal trial admission that she had a bank account during
the pendency of the citation. Chivalry’s second motion re-
quested leave to amend the complaint to add allegations re-
lating to the new bank account so that the bankruptcy court
26 No. 14-1891
could sustain objections to the discharge on grounds alleged
in the complaint. 6
Marcus-Rehtmeyer filed a combined response to the
post-trial motions, attaching her affidavit and one from Bar-
bara Collette, an Operations Officer with Old Second Na-
tional Bank of Aurora. The affidavits purported to establish
that Marcus-Rehtmeyer did not open an account with that
bank until July 28, 2011, one month after she filed her bank-
ruptcy petition. The statements in the affidavits directly con-
tradicted Marcus-Rehtmeyer’s sworn testimony at the bank-
ruptcy trial that she opened a checking account around the
time she was paid by SciTech and deposited the checks
therein, and that the account was at the Old Second National
Bank. (R. 828, 830). Chivalry moved to strike the affidavits
for the following reasons: (1) they were an impermissible at-
tempt to re-open the proofs, (2) they were deficient under
28 U.S.C. § 1746, (3) they did not help Marcus-Rehtmeyer as
she did not dispute that she received compensation from
SciTech in 2010 in the form of checks, and (4) she did not
dispute that she deposited those checks into a bank account.
Although the bankruptcy court agreed with Chivalry
that the post-trial affidavits were deficient, it gave Marcus-
Rehtmeyer the opportunity to re-file those affidavits to com-
ply with 28 U.S.C. § 1746. The bankruptcy court did not ad-
dress Chivalry’s arguments that the affidavits were an im-
6 A plaintiff may amend the complaint pursuant to Federal Rule of Civil
Procedure 15(a) with leave of the court after a court has set aside or va-
cated a judgment under Rule 59(e) or 60(b). Paganis v. Blonstein, 3 F.3d
1067, 1072 (7th Cir. 1993).
No. 14-1891 27
permissible avenue to reopen the proofs nor did it allow
Chivalry to respond to the allegations in the order.
Because we conclude that Marcus-Rehtmeyer, with the
“intent to hinder, delay, or defraud a creditor or an officer of
the estate charged with custody of property under this title,
has … concealed, or has permitted to be … concealed prop-
erty of the debtor, within one year before the date of the fil-
ing of the petition” 11 U.S.C. § 727(a)(2)(A), we need not re-
solve the post-trial motions. As we have already explained,
it was not critical to the disposition that the court decide
whether or not Marcus-Rehtmeyer had an account with Old
Second National Bank of Aurora during the pendency of the
citation. It was enough to establish that Marcus-Rehtmeyer
received assets from SciTech and that these assets should
have been disclosed during the pendency of the citation. As
we have concluded, they should have been.
Consequently, we reverse the judgment of the district
court affirming the bankruptcy court’s order that denied the
plaintiffs-appellant’s objection to the discharge of Marcus-
Rehtmeyer’s debt. We remand to the bankruptcy court with
instructions to reverse its denial of the objection to the dis-
charge.
REVERSED.