Bankruptcy and Divorce: A basic outline for the family law professional.
Published on August 10, 2013 by: Ian M. Falcone
The following outline was prepared to assist judges, attorneys and other non-bankruptcy professionals with common issues that frequently arise in family law cases. It is not intended to address any one issue in detail, but rather to provide a basic outline and starting point when faced with a bankruptcy situation. Please feel free to contact me if you have any questions.
THE AUTOMATIC STAY
A. When
does it apply?
1. The stay is automatic upon the filing of a bankruptcy
petition. Notice is not necessary (11 USCS § 362 automatic stay is in force
from time petition in bankruptcy is filed and fact that creditor had not
received notice of filing is irrelevant. In re Garcia (1982, ND Ill) 23 BR 266, 9 BCD 905. Because automatic stay becomes effective upon
filing of Chapter 13 bankruptcy petition under 11 USCS § 362(a), no formal
notice is required. Richard v Chicago (1987, ND Ill) 80 BR 451 (criticized in
In re Shah (2001, BC ED Pa) 46 CBC2d 101). Automatic stay is effective upon
filing of Chapter 13 debtor's petition and no formal notice is required. In re Davis (1987,
BC ND Ohio) 74 BR 406, 16 BCD 40.)
2.
Sanctions are not imposed unless the violation
was willful (11 USC 362(k) (1) Except as
provided in paragraph (2), an individual injured by any willful violation of a
stay provided by this section shall recover actual damages, including costs and
attorneys' fees, and, in appropriate circumstances, may recover punitive
damages. (2) If such violation is based
on an action taken by an entity in the good faith belief that subsection (h)
applies to the debtor, the recovery under paragraph (1) of this subsection
against such entity shall be limited to actual damages)
3.
There are a few exceptions to the stay being
automatic. If there has been a previous
case filed within one year of the current filing, the stay is only good for
thirty (30) days (11 U.S.C. 362(c)(3)), unless the Court extends the stay for
cause (which is liberally granted). If
two or more cases have been filed within the prior year, there is no stay
created upon filing. The debtor must
actually file a motion to impose the stay.
Be aware, however, that our local judges have taken the position that
although the stay may dissolve after 30 days (or not have been created in the
first place), a creditor cannot take action against an estate asset. (In re Ajaka
370 B.R. 426 (NDGA, 2007 Judge Murphy) In the instant case, it appears that all the property for which Debtor
seeks protection from the automatic stay is property of the estate. As §362(c)(3) does not apply to
terminate the stay as to property of the estate, relief under that
Bankruptcy Code section is unnecessary. (emphasis added))
B. What does
it prevent?
1. In
its most general application, the automatic stay prevents “the commencement or
continuation, including the issuance or employment of process, of a judicial,
administrative, or other action or proceeding against the debtor that was or
could have been commenced before the commencement of the case under this title,
or to recover a claim against the debtor that arose before the commencement of
the case. 11 U.S.C 362 (a)(1). However, the stay actually protects against
much more.
2. The
stay also protects against “the enforcement against the debtor or the debtor’s
property of a judgment obtained before the commencement of the case” (11 USC
362(a)(2)), “any act to obtain possession of property of or from the debtor’s
bankruptcy estate, or to exercise control over property of the estate” (11 USC
362(a)(3)), and “any act to create, perfect, or enforce any lien against the
property of the debtor’s bankruptcy estate” (11 USC 362(a)(4)).
3.
As you may have noticed, many of the protections
focus on actions against the “estate.” It
is important to understand that the definition of the “estate” changes from
bankruptcy chapter to bankruptcy chapter.
a.
11 U.S.C. 541 provides the basic definition of
the estate for Chapter 7 cases. (The commencement of a case under section
301, 302, or 303 of this title creates an estate. Such estate is comprised of
all the following property, wherever located and by whomever held: (1) Except
as provided in subsections (b) and (c)(2) of this section, all legal or
equitable interests of the debtor in property as of the commencement of the
case. (3) Any interest in property that
the trustee recovers under section 329(b), 363(n), 543, 550, 553, or 723 of this
title. (5) Any interest in property that would have been property of the estate
if such interest had been an interest of the debtor on the date of the filing
of the petition, and that the debtor acquires or becomes entitled to acquire
within 180 days after such date—(A) by bequest, devise, or inheritance;(B) as a
result of a property settlement agreement with the debtor's spouse, or of an
interlocutory or final divorce decree; or (C) as a beneficiary of a life
insurance policy or of a death benefit plan. 11 USC 541 (selectively edited).
b.
11 U.S.C. 1306 expands that definition for the
purpose of Chapter 13. ((a) Property of the estate includes, in
addition to the property specified in section 541 of this title—(1) all
property of the kind specified in such section that the debtor acquires after
the commencement of the case but before the case is closed, dismissed, or
converted to a case under chapter 7, 11, or 12 of this title, whichever occurs
first; and (2) earnings from services performed by the debtor after the
commencement of the case but before the case is closed, dismissed, or converted
to a case under chapter 7, 11, or 12 of this title, whichever occurs first.) A similar provision can be found at 11 U.S.C.
1115 for Chapter 11 cases. ((a) In a case in which the debtor is an
individual, property of the estate includes, in addition to the property
specified in section 541—(1) all property of the kind specified in section 541
that the debtor acquires after the commencement of the case but before the case
is closed, dismissed, or converted to a case under chapter 7, 12, or 13,
whichever occurs first; and (2) earnings from services performed by the debtor
after the commencement of the case but before the case is closed, dismissed, or
converted to a case under chapter 7, 12, or 13, whichever occurs first.)
c.
The easiest way to think of the definition is
that Chapter 7 is a snapshot and Chapter 13 and 11 are motion pictures. On the date of filing imagine taking a
photograph of all of the debtor’s assets.
In a Chapter 7 case, the assets are fixed at the time of filing. The asset either existed or did not exist at
the time of filing. Post-petition income
was not in the photograph at the time of filing and therefore is not part of
the estate in a Chapter 7 case. However,
Chapter 13 and Chapter 11 are more like movies.
The camera follows the action during the case. As a result, post-petition income and other
assets that are acquired after filing become part of the estate.
C. Exceptions
to the stay:
1. The
following actions are NOT prohibited by the automatic stay.
a. sales or transfers of property initiated by the debtor (See In re Schwartz, 954 F. 2d 569). This would indicate that a debtor can
transfer property that is not property of the estate without relief from the
stay. However, because it is often
difficult to determine whether an asset is part of the estate, it is always
best to seek and obtain relief from the stay before completing an asset
transfer.
b. the
collection of a domestic support obligation from property that is not
property of the estate (11 USC 362(b)(2)(B)).
If a contempt action is filed against a debtor in a Chapter 7 case, in
theory, without lifting the stay, the Movant could proceed to collect solely
from post-petition income since it is not part of the estate (this would not be
true in a Chapter 11 or Chapter 13 case since post-petition earnings would be
considered part of the estate). Another
interesting theory would be to proceed solely against ERISA qualified assets
since they are not included in the definition of estate in any chapter (See 11
U.S.C. 541(b)(7)). The safest course of
action, of course, is to require the Movant to file Motion for Relief from the
Automatic Stay (timeline is approximately 30-60 days)
c. with
respect to the withholding of income that is property of the estate or property
of the debtor for payment of a domestic support obligation under a judicial or
administrative order or statute (11 USC 362(b)(2)(C). This section was added by BAPCPA to allow for
the entry of income deduction orders for DSOs.
(See In re Powers 2010 WL
942166 (Bankr. S.D. Ind. 2010)).
d. The
commencement or continuation of a criminal action or proceeding against the
debtor (11 USC 362(b)(1)).
i.
It is not always clear whether an action is
“criminal” in nature. Collection of a
“bad check” would seem to be a criminal proceeding. Nonetheless, our local bankruptcy judges have
often looked at the intent of the action to determine whether the action is
truly a criminal proceeding or a collection action in disguise.
ii.
The difference between criminal and civil
contempt can be crucial. If a party is
truly being held for criminal contempt, then that action should not be
prevented by the automatic stay. (Criminal matters, including criminal
contempt proceedings, are not subject to the automatic stay of 11 U.S.C.
§362. In re: Michael Hughes, NDGA
Judge Murphy 04-98206-MHM)
e. the
establishment of paternity (11 USC 362(b)(2)(A)(i))
f.
the establishment or modification of an order
for domestic support obligations (11 USC 362(b)(2)(A)(ii)). There can be some very strange results as a
result of what is and is not stayed. For
example: Ex-Wife files a contempt action
against Ex-Husband for failure to pay child support. Ex-Husband files a motion to modify his child
support obligation. The night before the
hearings, Ex-Husband files bankruptcy.
The contempt action is stayed (11 U.S.C. 362(a)(1) and (2)), but the
modification action is not (11 U.S.C. 362(b)(2)(A)(ii)).
g. concerning
child custody or visitation (11 USC 362(b)(2)(A)(iii))
h. for
the dissolution of a marriage, except to the extent that such proceeding seeks
to determine the division of property that is property of the estate (11
USC 362(b)(2)(A)(iv)). Again, an asset
that is clearly not part of the estate can be divided, but determining whether
an asset is within that definition can be problematic. It is best to have the parties seek relief
from the Bankruptcy Court.
i.
regarding domestic violence (11 USC
362(b)(2)(A)(v))
2. The
safest answer in every case, of course, is to require the parties to file a
Motion for Relief from the Stay. The
process typically takes 30-60 days, but under limited circumstances, can be
heard on an emergency basis. The parties
can also file a motion and submit a consent order, which is typically entered
within a few days.
DISCHARGABILITY
1. Domestic
Support Obligations. Prior to October
15, 2007, the Bankruptcy Code differentiated between debts that were “in the
nature of alimony, maintenance, or support” and those that were merely
“property settlements.” As a general
rule, support-type debts were non-dischargeable, property settlements were
subject to a balancing test. As a
result, there was a fairly steady stream of litigation attempting to determine
the character, and therefore, the dischargeability of these debts. When the Bankruptcy Code was revised, several
substantial changes were made.
a.
The term Domestic Support Obligation was defined
as “a debt that accrues
before, on, or after the date of the order for relief in a case under this
title, including interest that accrues on that debt as provided under
applicable non-bankruptcy law notwithstanding any other provision of this
title, that is - (A) owed to or recoverable by - (i) a spouse, former spouse,
or child of the debtor or such child's parent, legal guardian, or responsible
relative; or (ii) a governmental unit; (B) in the nature of alimony,
maintenance, or support (including assistance provided by a governmental unit)
of such spouse, former spouse, or child of the debtor or such child's parent,
without regard to whether such debt is expressly so designated; (C) established
or subject to establishment before, on, or after the date of the order for
relief in a case under this title, by
reason of applicable provisions of - (i) a separation agreement, divorce
decree, or property settlement agreement; (ii) an order of a court of record;
or (iii) a determination made in accordance with applicable non-bankruptcy law
by a governmental unit; and (D) not assigned to a nongovernmental entity,
unless that obligation is assigned voluntarily by the spouse, former spouse,
child of the debtor, or such child's parent, legal guardian, or responsible relative for the
purpose of collecting the debt.” 11 U.S.C. 101(14A)
i.
Spouse or Former Spouse Requirement. Prior to the 2007 amendment, the vast
majority of courts [held] that there is no requirement that alimony,
maintenance of support be owed directly to a spouse or dependent in order to be
non-dischargeable under the Bankruptcy Code.”
In re MacDonald, 69 B.R. 259
(Bankr D. N.J. 1986). While the 2007
revisions might be read to contradict that interpretation, that has not been
the case. “[T[he fact that the
attorney’s fee award is payable directly to [the claimant’s attorney] has no
bearing on whether the debt is a DSO. In
re Marshall, 489 B.R. 630 (Bankr. S.D.GA. 2013)
b. DSO’s
are never dischargeable. A discharge
under Chapter 7 (11 USC 727), Chapter 11 (11 USC 1141), or Chapter 13 (11 USC
1328(b) does not discharge an individual debtor from any debt for a domestic
support obligation. (11 USC
523(a)(5)). In other words, DSOs are not
discharged even when there is a bankruptcy discharge entered.
c.
Labels Don’t Matter/Factors to Consider. Despite the fact that there is no such thing
as “Federal Divorce Law”, it is actually federal law that determines whether a
debt is a DSO. Of course, State law
plays a pivotal role in guiding the decision.
“A domestic obligation can be deemed actually in the nature of support .
. .even if it is not considered ‘support’ under state law.” In re
Strickland, 90 F. 3d 444 (11th Cir. 1996). My favorite summary of this area of law is
“If you take a can of peas and slap a corn label on it, does that make it a can
of corn? The answer, or course, is
no. “Whether a given debt is in the nature of support is an
issue of federal law. Although federal law controls, state law does provide
guidance in determining whether the obligation should be considered 'support'
under § 523(a)(5). To make this determination a bankruptcy court should
undertake a simple inquiry as to whether the obligation can legitimately be
characterized as support, that is, whether it is in the nature of support. In
conducting this inquiry, a court cannot rely solely on the label used by the parties.
As other courts have recognized, it is likely that neither the parties nor the
divorce court contemplated the effect of a subsequent bankruptcy when the
obligation arose. The court must therefore look beyond the label to examine
whether the debt actually is in the nature of support or alimony. A debt is in
the nature of support or alimony if at the time of its creation the parties
intended the obligation to function as support or alimony. Thus, the party
seeking to hold the debt nondischargeable has the burden of proving by a
preponderance of the evidence that the parties intended the obligation as
support.” Cummings v. Cummings, 244 F.3d 1263,
1265 (11th Cir. 2001)). Having
said that, the Courts (See In re Mac Donald, 194 B.R. 283 (N.D.
Ga., 1996) typically look at any number of factors, including, but not limited
to:
i.
The intent of the parties.
ii.
Is the obligation subject to contingencies, such
as death or remarriage?
iii.
Is the obligation intended to balance disparate
incomes of the parties?
iv.
Is the debt payable in installments or a lump
sum?
v.
Is the obligation enforceable by contempt?
vi.
What was the length of the marriage?
vii.
Was there a clear need for support?
viii.
What was the tax treatment of the obligation?
d. Concurrent
Jurisdiction. The State and Federal
Courts have concurrent jurisdiction to make determinations of dischargeability
under 11 U.S.C. 523(a)(5). (See 11 USC 523(c) omitting 523(a)(5) from
those debts that require an adversary proceeding to be filed to prevent
discharge)
e. Examples:
i.
Education Expenses. Generally speaking,
education expenses for a minor child are considered a form of support. This is true, even for post-majority
education expenses (“the nature of
debtor's promise to pay educational expenses and child support is not
determined by the legal age of majority under state law. The bankruptcy court
characterized the agreement to pay educational expenses as in the nature of
support, and the only ground on which debtor has challenged that characterization
on appeal relates to the state law legal duty as determined by the age of
majority.” In re Harrell, 754 F.
2d 902 (11th Cir. 1985))
ii.
Medical and health insurance. Courts typically examine the relative
financial circumstances of the parties to determine whether an obligation to
pay health insurance is a support obligation.
(“In
addition to the Final Decree's assessment of $400.00 per child as monthly child
support, the Interlocutory Orders of the court ordered the Debtor to pay any
and all existing debts related to the medical care of the four children. Like
the creation of the Debtor's direct support obligation, the assessment of
responsibility for these debts formed part and parcel of an unmistakably clear
program by the state court to insure the present and future well-being of the
children. As such, to the extent that these debts still remain outstanding, the
Debtor may not discharge responsibility for them in bankruptcy.” Matter of Robinson 193 B.R. 367 (Bankr. N.D. Ga. 1996)
iii.
Life Insurance.
Courts have found that, to the extent a life insurance obligation is
intended to protect a support obligation, that debt is, itself, a support
obligation and is non-dischargeable. In re Merrill 252 B.R. 497 (B.A.P. 10th
Cir. 2000), aff’d, 15 Fed. Appx. 766 (10th Cir. 2001)
iv.
Effect of Assignment. Prior to the 2005 Amendments, an assignment
could effectively terminate a support obligation in bankruptcy. The new Bankruptcy Code expressly allows for
assignment so long as it is “voluntary” and “for the purpose of collecting the
debt.” (See 11 U.S.C. 101 (14A)(D) including within the definition of “domestic
support obligation” debts “not assigned to a nongovernmental entity, unless
that obligation is assigned voluntarily by the spouse, former spouse, child of
the debtor, or such child's parent, legal guardian, or responsible relative for
the purpose of collecting the debt.”)
v.
Attorneys Fees.
Attorneys fees awarded in connection with a support award are typically
considered “in the nature of” support as well and are therefore
non-dischargeable. The determination
generally turns on the relative financial circumstances of the parties. (Ҥ 523(a)(5) requires nothing more than "a simple
inquiry as to whether the obligation can legitimately be characterized as
support." In re Harrell, 754 F.2d
at 906 (11th Cir. 1985)).
1.
Awards Payable to
Opposing Counsel. This has been an area
of concern for some time. An award owed
solely to opposing counsel is clearly not “owed to, or recoverable by a spouse”. However, despite concerns, most Courts seem
to find that the award is still a form of support. “it is
clear that pre-BAPCPA precedent overwhelmingly concludes that an
award of
attorney’s fees does not lose its DSO character by being payable directly to
the attorney. Matter of Holt,
40 B.R. 1009 (S.D. Ga. 1984); Stevens,
2006 Bankr. LEXIS 5096, 2006 WL 6885815; see
also In re Bedingfield, 42 B.R. 641 (S.D. Ga. 1983) (support obligations
may be DSOs even if not payable directly to wife or children). Post-BAPCPA
cases have reached similar decisions. See,
e.g., In re Andrews, 434
B.R. 541 (Bankr. W.D. Ark. 2010) (finding under current law that attorney’s fee
award arising from a divorce decree was a ‘domestic support obligation′’ even
though the payee was former wife’s attorney); Rogowski, 462 B.R. 435 (surveying cases and holding that
matrimonial attorney’s fees payable directly to the attorney satisfied the
definition of DSO).” In re Marshall, 489
B.R. 630 (Bankr. N.D. Ga. 2013).
2.
Attorney’s fees to a
party’s own attorney. These fees are not
a domestic support obligation and are dischargeable on the same basis as any
other unsecured general debt. “Every court that has published a decision
on this issue has held that a debt due from a debtor for his or her own
attorney fees incurred in connection with matrimonial and related proceedings
are dischargeable.” (In re Dean, 231
B.R. 19 (Bankr. W.D. N.Y. 1999). Attorneys
are free to secure their debts, which would change their treatment. This, of course, is not common practice, but
does happen on occasion.
vi.
Guardian Ad Litem Fees. Guardian Ad Litem fees are typically
considered support obligations and are non-dischargeable. However, since the payee is not a “spouse or
former spouse” similar concerns exist as those above. Again, despite the plain language of 11 U.S.C.
101(14A), most Courts have ignored the payee and examined the nature of the
debt itself to determine whether the debt is dischargeable. “It is nearly universally recognized that
when a state domestic relations court appoints a guardian ad litem to protect
the interests of a child, the services provided by the guardian ad litem have
the effect of providing support. The parents or other parties who created the
dispute requiring the appointment of the guardian ad litem must bear the cost
of that support. Accordingly, equity requires—and the clear weight of caselaw
authority holds—that fees incurred by a guardian ad litem be classified as a
support obligation that may not be discharged by the parent or other party
responsible for the fees. Cf. Reissig v.
Gruber (In re Gruber), 436 B.R. 39, 43
(Bankr.N.D.Ohio 2010) (‘[T]he
attorney fees were awarded in a proceeding concerning the health and welfare of
the Parties' children. As such, it is impractical to sever the award of
attorney fees from the needs of the children.’)” In re Kassicieh, 467 B.R. 445 (Bankr. S.D.Ohio, 2012).
vii.
Mediation Fees.
I have not seen a case on this issue, but if a party is ordered to pay
mediation fees for which the other party is responsible, presumably the debt
would either be non-dischargeable as a support obligation (523(a)(5)) or as an
“other debt” in “connection with a separation agreement, divorce decree or
other court of record” (523(a)(15)).
Remember that if the obligation is construed as an “other debt” it would
be discharged in a completed Chapter 13 case.
f.
Hindsight is 20/20. Orders and agreements are not always drafted
with bankruptcy concerns in mind. The
following are examples of language that could be used to require the payment of
alimony.
i.
“Husband shall pay Wife the sum of $25,000 in
monthly installments of $1000.” This
example certainly could be alimony, but it begs more questions: Was it labeled alimony? Was there other property division? How long were the parties married?
ii.
“Due to the income disparity of the parties and
their relative financial positions, the following is awarded as alimony: Husband shall pay Wife $25,000 in monthly
installments of $1000.” While this
language is far from perfect, it certainly lends itself to a clearer
determination that this was, in fact, intended as alimony.
iii.
Hedging.
I get a fair number of questions asking whether this language or that language
will prevent discharge if the obligee files for bankruptcy. My favorite is the “hedged bet.” The proposed
language might as well read as follows:
“We mean for this to be property settlement so no one has to pay any
taxes, but if you file bankruptcy, well then, of course, we meant for it to be
alimony and it can’t be discharged in bankruptcy.” There simply are no “magic words.” The obligation either was intended as a property
settlement or as alimony at the time it was created; it doesn’t change because
one party filed for bankruptcy protection.
2. Property
Settlement/Other. Although lawyers still
use the term “property settlement” to refer to the debts included under 11
U.S.C. 523(a)(15), the better term would probably be “other debts”. In 2005, Section 523(a)(15) of the Bankruptcy
Code was amended to read, “to a spouse, former spouse, or child of the debtor
and not of the kind described in paragraph (5) that is incurred by the debtor
in the course of a divorce or separation or in connection with a separation
agreement, divorce decree or other order of a court of record, or a
determination made in accordance with State or territorial law by a
governmental unit.” Clearly, this
definition expands coverage of debts beyond traditional “property settlement”
obligations.
a. Differences
among the Chapters. The treatment of
these types of debts varies tremendously between Chapter 7 and Chapter 13.
i.
Chapter 7.
The old “balancing test” is gone.
If a debtor files Chapter 7, not only are the DSO’s not discharged, but
any debt that could be included within the 523(a)(15) definition is not
discharged either. The creditor need not
take any action to protect his or her rights.
The language “separation agreement, divorce decree or other order of
a court of record” (emphasis added) has virtually eliminated the discharge
of any debt that is related to a divorce or other domestic action. (“the Award granted to Respondent in
connection with defending her rights under the divorce decree falls within the
meaning of 523(a)(15).” In re Howerton, N.D.Ga.
12-01055.
See also In re Koscielski 2011 WL 338634 (Bankr. N.D. Ill, January
31, 2011) concluding that attorneys fees incurred in connection with
enforcement of a divorce decree were non-dischargeable pursuant to 11 USC
523(a)(15), In re Cavagnetto, 2012 WL
6585560 (Bankr N.D. Ill 2012) holding that attorneys fees as a sanction against
the debtor for filing a baseless complaint in connection with divorce
proceedings were not dischargeable under 11 U.S.C. 523 (a)(15), Zimmerman v. Hying, 477 B.R. 731 (Bankr.
E.D. Wis. 2012) attorneys fees ordered pursuant to post-divorce contempt
proceedings non-dischargeable under both 523(a)(5) and 523(a)(15))
ii.
Chapter 13.
Upon successful completion of a Chapter 13 plan, any unpaid debt for
“property settlement” (or “other debt”) is discharged. 11 U.S.C. 1328(a)(2) (The omission of a reference to 523(a)(15)
allows a “property settlement” (“other debt”) to be discharged.) As a
result, a former spouse should take care to examine the treatment and
classification of their debt prior to confirmation of the Chapter 13 Plan. They should also be sure to file a proof of
claim within the applicable timelines.
b. Adversary
Proceeding Requirement. The 2005
amendments to the Bankruptcy Code eliminated the need for a creditor to file an
adversary proceeding (Complaint to Determine Dischargeability) for any debts
other than those under 523(a)(2), (4) and (6).
DSOs and property settlements are not part of those sections. Therefore, while it is not imperative that a
creditor files an action during the bankruptcy case, it is certainly
advisable. In theory, a case can be
reopened to file to adversary proceeding to determine dischargeability at a later
date.
3.
Concurrent Jurisdiction. Both the Bankruptcy Court and Superior Court
have the right to determine dischargeability under 523(a)(5) and (15) (“although the bankruptcy court has exclusive jurisdiction
to determine the dischargeability of certain debts resulting from false
financial statements, fraud, embezzlement, larceny or willful and malicious
injury by a debtor, 11 U.S.C. §523(c), state courts have concurrent
jurisdiction to determine the dischargeability of other potentially
nondischargeable debts, including debts arising in domestic law proceedings
that may be nondischargeable under §523(a)(5) or (15).” Cummings v. Cummings, 244 F.3d 1263
(11th Cir. 2001); Eden v. Robert A
Chapski, Ltd., 405 F.3d 582 (7th Cir. 2005)).
