Cir. 2000). Service is sufficient as long as the summons and complaint are sent to debtor’s last
address provided by the debtor. Id.

Bankruptcy Rules 7004 and 7005 incorporate Fed. R. Civ. P. 4(c)(1) and Fed. R. Civ. P.
5(a)(2). Rule 5(a)(2) mandates that where a party is in default for failing to appear, a pleading
that asserts a new claim for relief against such a party must be served on that party in accordance
with Rule 4. Rule 4(c)(1) requires service of a summons with a copy of the complaint. When a
new or additional claim for relief is asserted against the same defendant, then a new summons
must be served with the amended complaint. Fed. R. Civ. P. 5(a)(2); See, e.g. Blair v. City of
Worcester, 522 F.3d 105, 109 (1st Cir. 2008).

Here, Kutrubis does not expressly deny receiving a copy of the Second Amended
Adversary Complaint. Kutrubis asserts that he was a party in default under Rule 5(a)(2) at the
time that Bowman sought to file the Second Amended Complaint because he had not filed an
appearance or any responsive pleading. Kutrubis further asserts that the Second Amended
Complaint alleged a new claim against him and therefore Bowman was required to execute at
new summons. Bowman asserts that she mailed him a copy of the complaint and filed with the
court a Certificate of Service on February 14, 2012. However, she did not execute a new
summons.

The Second Amended Complaint added Count II, seeking to bar Kutrubis’ discharge
based on his failure to comply with the bankruptcy court’s June 29, 2011, Order directing him to
turnover documents. Count II constitutes a new claim based on a different factual predicate and
different claim for relief than was previously alleged. Thus, Bowman failed to properly serve
Kutrubis pursuant to Rule 5(a)(2). The bankruptcy court accordingly lacked personal jurisdiction

over Kutrubis unless he waived his objection to personal jurisdiction. See Insurance Corp. of


bankruptcy court abused its discretion by denying his Rule 60(b)(1) motion because his failure to
appear and respond in the adversary proceeding was excusable neglect and the court did not
apply the proper standard. Kutrubis argued in his Rule 60(b)(1) motion that he could not appear
or respond to the adversary complaint because he had to care for his elderly mother, who was
suffering from a health crisis in January 2012. Kutrubis asserts that this fact shows that he
moved with reasonable promptness after the default judgment (within fourteen days), alleged a
meritorious defense (excusable neglect), and did not willfully default.

“The standard for reviewing whether neglect is ‘excusable’ is an equitable one, taking
into consideration relevant circumstances, including (1) the danger of prejudice to the non-
moving party; (2) the length of the delay and its impact on judicial proceedings; (3) the reason
for the delay (i.e., whether it was within the reasonable control of the movant); and (4) whether
the movant acted in good faith.” Sherman v. Quinn, 668 F.3d 421, 425-426 (7th Cir. 2012)
(citing Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P'ship., 507 U.S. 380, 395, 113 S. Ct. 1489,
123 L. Ed. 2d 74 (1993); Marquez v. Mineta, 424 F.3d 539, 541 (7th Cir. 2005)).

Here, the bankruptcy court expressly noted that the adversary proceedings had begun in
2011, nearly a year prior to the entry of the default judgment. The court also enumerated that
each of the occasions on which Kutrubis had failed to appear in court and that caring for an
elderly parent would not have precluded Kutrubis from finding legal representation or a care-
giver for the few hours required to make a court appearance. Further, in refusing to find
excusable neglect, the court cited Kutrubis’ prior service as a circuit court judge as indication

that Kutrubis was well-aware of the consequences of failing to respond to a complaint.

10


U.S.C. § 727(a)(6)(A) because the court did not specify which specific orders Kutrubis
disobeyed and the facts do not support the conclusion that Kutrubis was willfully non-compliant
with the court’s orders. Section 727(a)(6)(A) states that a court shall grant a debtor discharge
unless the debtor “has refused, in the case, to obey any lawful order of the court, other than to
respond to a material question or to testify.” 11 U.S.C. § 727(a)(6)(A). The court must find the
debtor’s non-compliance willful in order to deny discharge under section 727(a)(6)(A). In re
Jordan, 521 F.3d 430, 433 (4th Cir. 2008). To establish willfulness, the party objecting to
discharge must demonstrate that “the debtor received the order in question and failed to comply
with its terms.” Jd. The debtor must then explain his non-compliance. Jd.

Although the bankruptcy court did not specifically identify an order which Kutrubis had
willfully disobeyed, the Second Amended Adversary Complaint identified the court’s June 29,
2011, order to turnover documents as the basis for non-dischargeability. Bowman’s motion for
default judgment also refers to Kutrubis’ failure to file an answer or otherwise appear in the case
on the dates ordered by the bankruptcy court. The court gave Kutrubis until February 10, 2012,
to answer or otherwise plead to the Second Amended Adversary Complaint and set a status
hearing for February 14, 2012. Kutrubis did not file an answer or responsive pleading to any of
Bowman’s adversary complaints and did not appear in court for the status hearing on February
14, 2012. Kutrubis also did not appear at the hearing on Bowman’s motion for default judgment
on March 7, 2012, and explain either his reasons for non-compliance or demonstrate that he had
complied with the June 29, 2011, Order.

The Seventh Circuit Court of Appeals instructs that the party seeking to demonstrate that
a lower court’s findings of fact were clearly erroneous has a heavy burden to bear. IPEC, Inc. v.

International Litho. Corp., 869 F.2d 1080, 1083 (7th Cir. 1989). The “clearly erroneous”


Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 704 102 S.Ct. 2099, 2105, 72
L.Ed.2d 492 (1982).

However, personal jurisdiction, unlike subject matter jurisdiction, is a “legal right
protecting the individual” and can be waived by the defendant. Jd. A party must include the
defense of lack of personal jurisdiction or insufficient service of process in its first responsive
pleading. Fed. R. Civ. P. 12(h)(1). Otherwise, the defendant waives the defense. Jd. “[O]nce the
defendant has waived objections based on insufficiency of process and submitted generally to

the jurisdiction of the court, the court is powerless to dismiss the suit for lack of personal
jurisdiction.” O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394, 1399 (7th Cir. 1993).

Kutrubis raises the defenses of insufficiency of service of process and lack of personal
jurisdiction for the first time in this appeal. His Motion to Vacate the default judgment pursuant
to Rules 59(e) and 60(b)(1) did not include the defenses of insufficiency of process or lack of
personal jurisdiction. Indeed, Kutribis acknowledged Bowman’s Second Amended Adversary
Complaint and the allegations therein, yet chose to challenge the default on the basis that his
failure to answer was excusable neglect and that the bankruptcy court committed a manifest
error of law by finding his debt not dischargeable for non-compliance with the turnover order.
While improper service generally destroys a court’s personal jurisdiction, Kutrubis waived any
challenge to personal jurisdiction by failing to raise the issue in his motion to vacate. See Mid-
Continent Wood Products, Inc. v. Harris, 936 F.2d 297, 301 (7th Cir. 1991). Therefore, this
Court concludes that the default judgment entered by the bankruptcy court is not void for lack of
personal jurisdiction.

2. Section 727(a)(6)(A)

Kutrubis also argues that the bankruptcy court erred in denying his discharge under 11


2002)(quoting Cincinnati Ins. Co. v. Flanders Elec. Motor Svc., 131 F.3d 625, 628 (7th Cir.
1997)). A court will not “second-guess the decision of a trial judge that is in conformity with
established legal principles and, in terms of its application of those principles to the facts of the
case, is within the range of options from which one would expect a reasonable trial judge to
select.” Liu v. Price Waterhouse LLP, 302 F.3d 749, 754 (7th Cir. 2002)(quoting Am. Nat’l Bank
& Trust v. Reg’l Transp. Auth., 125 F.3d 420 (7th Cir. 2002)).

On April 3, 2012, the bankruptcy court found that Kutrubis had been served with the
adversary complaint and had failed to appear before the court on multiple occasions and respond
to the complaint. The court further noted that Kutrubis’ only proffered reason for his failure to
comply with the requirements of bankruptcy procedure was that he needed to care for his elderly
mother; a fact, which did not preclude him from finding legal representation or a care-giver for
his mother during brief court appearances.

Relief under Rule 59(e) is warranted where “there has been a mistake of law or fact or
new evidence has been discovered that is material and could not have been discovered
previously.” Figgie Int'l v. Miller, 966 F.2d 1178, 1180 (7th Cir. 1992). There is nothing in the
record to indicate that the bankruptcy court abused its discretion by denying Kutrubis’ Rule
59(e) motion, finding that Kutrubis had failed to comply with the court’s orders in the adversary
proceeding. He argued in his motion that he turned over the documents to his then-counsel, who
subsequently turned them over to the bankruptcy trustee. However, he did not furnish the
bankruptcy court with any support for this contention or provide further factual enhancement
such as when he delivered the documents.

Under Rule 60(b)(1), a court may provide relief from judgment for “mistake,

inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Kutrubis argues that the


IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
In re: )
)
LAMBROS J. KUTRUBIS, ) No. 12 ev 4042
)
Debtor. ) Judge Sharon Johnson Coleman
)
)
)
LAMBROS J. KUTRUBIS, )
) Appeal from:
Appellant, )
) Adv. Case No. 11 A 1879
v. )
)
GLORIA BOWMAN, )
)
Appellee. )

Memorandum Opinion and Order

On March 7, 2012, the United States Bankruptcy Court for the Northern District of
Illinois entered a default judgment order denying the debtor, Lambros J. Kutrubis, discharge
pursuant to 11 U.S.C. § 727(a)(6)(A) of the creditor Gloria Bowman’s unsecured claim of
$2,500. On April 3, 2012, the bankruptcy court denied Kutrubis’ motion for relief from the
March 7, 2012, default judgment. Kutrubis argues on appeal that the judgment of the bankruptcy
court is void because the court lacked in personam jurisdiction. For the reasons stated herein, the
decision of the bankruptcy court is affirmed.
Background

Kutrubis, a retired Cook County Circuit Court judge, filed a voluntary petition for relief
under Chapter 11 of Title 11 of the Unites States Code, 11 U.S.C. § 101, on January 12, 2010.
Kutrubis listed total assets worth $2,082,856.56 and total liabilities of $2,494,348.45. Gloria

Bowman, Kutrubis’ ex-wife’s daughter, is identified in Kutrubis’ Schedule F as an unsecured


Therefore, this Court concludes that the bankruptcy court did not abuse its discretion by
declining to grant Kutrubis relief from default judgment based on his proffered claim of
“excusable neglect.”

Conclusion
For the reasons stated herein, this Court affirms the decision of the bankruptcy court.

Affirmed.

Date: February 14, 2013

Ent

Sharon Johnson Coleman

11


standard means that the reviewing court must be left “with the definite and firm conviction that a
mistake has been made.” Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1201 (7th Cir.
1989) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). In his
motion to vacate the default judgment, Kutrubis acknowledged that he did not answer any of the
complaints filed in the adversary proceeding. On the record at the hearing on the motion for
default judgment, the bankruptcy court considered Kutrubis’ continued failure to appear and
answer the allegations in the adversary complaint as indications of willful non-compliance.
Moreover, Kutrubis admits that he never produced the documents to Bowman on the date
specified in the June 29, 2011, Order. Instead, Kutrubis argued in his motion to vacate that he
had turned over the documents to his former counsel, who delivered them to counsel for the
trustee of the bankruptcy estate. There is no evidence in the record to suggest that Kutrubis did
in fact comply with the bankruptcy court’s order to produce all the documents in his possession
relating to the South Halsted property. Therefore, Kutrubis fails to meet his burden and this
Court is not left with the firm conviction that a mistake has been made.
3. Motion to Vacate

Kutrubis also argues that the bankruptcy court abused its discretion when it denied his
motion to vacate the default judgment. Kutrubis argues that the bankruptcy court did not apply
the proper standard for denying his motion to vacate under either Bankruptcy Rule 9023, which
incorporates Federal Rule of Civil Procedure 59(e), and alternatively, under Bankruptcy Rule
9024, which incorporates Federal Rule of Civil Procedure 60(b)(1). This Court disagrees.

“A party appealing under [the abuse of discretion standard] bears a heavy burden, for ‘a
decision constitutes an abuse of discretion when it is not just clearly incorrect, but down-right

unreasonable.” Zhou v. Guardian Life Ins. Co. of Am., 295 F.3d 677, 679 (7th Cir.


differently. Freeland v. Enodis Corp., 540 F.3d 721, 729 (7th Cir. 2008). The appellant,
Kutrubis, bears the burden of showing clear error. See Hower v. Molding Sys. Eng’g Corp., 445
F.3d 935, 939 (7th Cir. 2006).
Discussion

Kutrubis argues that the bankruptcy court erred in entering the default judgment against
him and denying his discharge pursuant to 11 U.S.C. § 727(a)(6)(A) because Bowman did not
properly serve the Second Amended Adversary Complaint and therefore the bankruptcy court
lacked personal jurisdiction over the Kutrubis in the adversary proceeding. Kutrubis also argues
that the bankruptcy court erred in denying his discharge under U.S.C. § 727(a)(6)(A) “on
account of his disobedience of court orders that were entered in this case” because the court
neither identified the specific orders that Kutrubis violated nor found that Kutrubis willfully
refused to comply. Lastly, Kutrubis argues that the bankruptcy court abused its discretion when
it denied his motion to vacate the default judgment because it did not consider all the requisite
elements for denying a motion to vacate pursuant to Rule 59(e) or Rule 60(b)(1).

1. Personal Jurisdiction

Valid service of process is necessary for the court to exercise personal jurisdiction over a
defendant. United States v. Ligas, 549 F.3d 497, 500 (7th Cir. 2008). A judgment is void where
the requirements of service of process are not satisfied. In re Cappuccilli, 193 B.R. 483, 488
(Bankr. N.D.Ill. 1996). Bankruptcy Rule 7004 governs the requirements for service of process
and incorporates parts of Federal Rule of Civil Procedure 4, but Bankruptcy Rule 7004(b)(9)
allows service on a debtor by first class mail. Bankruptcy Rule 7004(b)(9). Proof of actual
receipt of the summons and complaint is not required, only that the summons and complaint

were mailed to both the debtor and the debtor’s attorney. Jn re Vincze, 230 F.3d 297, 299 (7th


Amended Adversary Complaint added a second count seeking denial of Kutrubis’ discharge
pursuant to 11 U.S.C. § 727(a)(6)(A) based on Kutrubis’ alleged failure to comply with the June
29, 2011, Order to turnover documents. At the status hearing on December 27, 2011, the court
gave Kutrubis until February 10, 2012, to file a responsive pleading.

Kutrubis contends that he never received service of summons and the Second Amended
Adversary Complaint. Bowman asserts that she sent Kutrubis the complaint by First Class
Certified U.S. Mail on January 11, 2012. A document titled “Certificate of Service” was filed on
February 14, 2012, which is linked to the original summons. Kutrubis did not file an appearance
or any responsive pleading. On February 28, 2012, Bowman filed a motion for default judgment,
which the bankruptcy court granted on March 7, 2012, denying Kutrubis’ discharge under 11
U.S.C. § 727(a)(6)(A) for failing to comply with the court’s orders. On March 21, 2012,
Kutrubis filed a motion to vacate the judgment pursuant to Federal Rules of Bankruptcy
Procedure 9023 and 9024, which incorporate Rules 59(e) and 60(b)(1) of the Federal Rules of
Civil Procedure. The court denied the motion. Kutrubis now appeals from the default judgment
and the denial of his motion to vacate the default judgment.

Standard of Review

The district court has jurisdiction over appeals from final orders of the bankruptcy court
pursuant to 28 U.S.C. §158(a)(1). A bankruptcy court’s legal conclusions and mixed questions of
law and fact are reviewed de novo. Mungo v. Taylor, 355 F.3d 969, 974 (7th Cir. 2004). Factual
findings are reviewed for clear error. Fed. R. Bankr. P. 8013. The clear error standard applies to
the review of the bankruptcy court’s dischargeability determination. See In re Bonnett, 895 F.2d
1155, 1157 (7th Cir. 1989). This court will not reverse the bankruptcy court’s determinations as

long as they are “plausible” based on the record, even if this court would have decided


creditor in the amount of $11,500.00. On June 8, 2010, Bowman filed a proof of claim against
Kutrubis’ bankruptcy estate for unsecured claim of $11,500 and a secured claim in the amount of
$1,000,000 based on profits of a business venture that was marital property between Kutrubis
and Bowman’s mother. On December 3, 2010, Kutrubis filed an objection to the Bowman claim
on the basis that it was overstated and unsubstantiated. On January 25, 2011, the bankruptcy
court disallowed Bowman’s secured claim entirely, but allowed her an unsecured claim of
$2,500. Thereafter, the case was converted from Chapter 11 to Chapter 7 of the Bankruptcy
Code.

On May 23, 2011, Bowman filed a “Routine Motion for Order Compelling Production of
Documents and Examination Pursuant to Rule 2004 and Rule 30(b)(6) of the Federal Rules of
Civil Procedure.” On June 29, 2011, the bankruptcy court ordered Kutrubis to “turnover all
documents relating to the 231-233 S. Halsted property in his possession or control from 1994 to
the present.” The remainder of the motion was entered and continued until December 27, 2011,
when it was denied. Bowman did not take action to enforce the turnover order.

On September 12, 2011, Bowman filed a pro se adversary complaint objecting to the
discharge pursuant to 11 U.S.C. § 727(a) and 11 U.S.C. §523(a). Summons issued in connection
with the Adversary Complaint, requiring Kutrubis to answer within 30 days. Bowman filed a
Proof of Service Summons Executed on September 20, 2011. She then filed an Amended
Adversary Complaint on October 3, 2011, pursuant to Bankruptcy Rule 7015(a)(1)(A). Kutrubis
claims that Bowman never served the Amended Adversary Complaint. The bankruptcy court
reset the initial October status to December 27, 2011, at which time Bowman requested leave to
file a Second Amended Adversary Complaint. The court allowed Bowman to file her Second

Amended Adversary Complaint, which she did on January 11, 2012. Bowman’s Second