Petition for Writ of Certiorari — Timmons v. Cassell, 122 S. Ct. 548 (2001) (No. 01-474)

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| Supreme Court, U.8.

FILED

01 474 SEP 1 2 2001

IN THE

Supreme Court of the United States

John Caldwell Timmons, et al.

Petitioners

Vv.

Timothy Scott Cassell, et al.

Respondents

On Petition for a Writ of Certiorari

To The United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

John Caldwell Timmons

Petitioner pro se

10343 U.S. Rt. 23

Lockbourne, Ohio 43137

740-983-3654

vom ON NNSA RRR

Questions Presented for Review

Cassell serially filed a second Chapter 13

reorganization shortly after the first was dismissed.

Two appeals have been taken from orders issuing from

the second reorganization. Both appeals dealt with

the claim of the Timmons Heirs even though the

second appeal also addressed the sanctions that were

levied for alleged violations of Bankruptcy Rule 9011.

Would the decisions reached in Timmons v. Cassell

(Sixth Circuit), conflict with the decision reached

in Lindsey v. Normet (U.S. Supreme Court) and

Thompson v. Shoemaker (North Carolina Court of

Appeals)?

Would possession of a rerital structure determine

liability for delinquent rental payments to the

exclusion of subjective “habitability” standards?

Would Ohio Revised Code §§ 5321.04(A)(2) and (4)

impose a defense, in a non-payment of rent issue,

if the tenant failed to comply with Ohio Revised

Code §§ 5321.05 and 5321.07?

Would the withholding of rent, after a Chapter 13

Petition in Bankruptcy is filed, conflict with

averred principles of law as_ presented in

Restatement, 2d, Property, Landlord and Tenant,

§21.1?

Would the withholding of rental payments during

the pendency of a first reorganization constitute

bad faith or fraud and thus be controlled by

USC Title 11 § 523 (a)(2)(A) in the second

reorganization?

Would broken windows and damages arising from

the failure to maintain heat in a rental dwelling

constitute wilful and malicious destruction of

property and thus be controlled by USC Title 11 §

523 (a)(6) in a serial Chapter 13 Reorganization?

PARTIES TO PROCEEDING

Pursuant to S.Ct. Rule 14.1(b), Petitioners supply the

following list of parties in interest for this Petition:

Petitioners pro se

Timmons Heirs

Ann Timmons Root, pro_se, 4200 Lyon Drive,

Columbus, Ohio 43220 614-451-6521

John Caldwell Timmons, pro se, 10343 U.S. Rt. 23,

Lockbourne, Ohio 43137 740-983-3654

Pryor B. Timmons, Jr., pro se, 4610 Carrington Way,

Hilliard, Ohio 43026 614-529-8244

Respondents

David G. Korn, Esq., Counsel for Respondent, 919 Old

Henderson Road, Columbus, Ohio 43220,

614-324-5959

Frank Pees, Chapter 13 Trustee, 130 E. Wilson Bridge

Road, Worthington, Ohio 43085-2327, 614-436-6700

TABLE OF CONTENTS

PAGE

Questions Presented.................cccccccosssccssesssscoccooceeee, i

| AT ii

II ciinnisicdsuvesdocendesasnitesetecinestoaceiaaies iii

Re Is aisnnncncntssnccnsoennnreenssosesenceanenes iv-ix

PETITION FOR A WRIT OF CERTIORARI

Citations To Opinions Below. .................cccccceseseseeeeees l

Jurisdictional Statement....................ccccccccececeeceees 1-2

Statutory Provisions Involved..................cecececececeeeees 2

ETI dabktnseenntennenbacncnavicsdssbecnsscenecsscconseusconeces 2-6

IE Wr I CII, snc ccccconoreccdacsocscscccccsensesceces 6-7

Landiord-tenant Law6...............cccccccccssssssssceseceesee 8-11

EEE I ae a 11-13

Analysis of landlord-tenant rules........................ 13-15

Examination of Relevant Cases...............cccececeee. 15-20

Examination of Cases Cited Below..............60...6.. 20-24

SEEN Nialdicbidideeminaghaidbbicilbidebeninaniesannsindednses sae: 24-27

APPENDIX

Sixth Circuit Court's Order, 6/15/2001............. la-4a

BAP Order Reversing Sanctions, 11/6/2000......5a-14a

BAP Order Denying Rehearing, 7/25/2000............ 15a

BAP Affirming Order Cover, 6/19/2000................. 16a

BAP Affirming Order, 6/19/2000.................... 17a-23a

Bankruptcy Court's Sanction Order,

SS EE a I a 24a-26a

Bankruptcy Court's Order Imposing Sanctions,

IN halla tasnsndsahpinasdeeebboncaedessonsbsdeussanans; 27a-34a

Order on Timmons Heirs’ Claim, 12/1/99....... 35a-36a

Ohio Revised Code

Se Be ns Dintaksthcndchitcmeddsusisneshicnidaaintanbal 37a

RII Siiae Oe SE sccicnntenscinnsnnbntpsbendbeddeiedean 37a-38a

Se ae Ue ee ecanieniccccnsnncnncgnabaniacatnatndnnisabie’ 38a

SN Bear 1 NE At encncccceniastnnedsassosinasnncinssaren 38a-39a

I i 39a

SF eee 0 TE sncnsentnccauibansenscnddanadtnbsainns 39a-4la

SO Ban iis Biccescnciscicnicsssnstnsisesesaniatansconines 4la |

United States Code Title 11

USC 11 § 362. Automatic Stay......c.ccccccsecssssseseeees 4la )

USC 11§ 523. Exceptions to discharge................. 42a

Restatement, 2d., Property, Landlord and Tenant...42a

Selections from Claims Hearing. 11/23/99

Cassell testimony on Furnace...................0.c0+ 42a-43a

Cassell testimony on plumbing....................... 43a-45a

Cassell Testimony on motels...................sseee00s 45a-47a

Cassell testimony on driver's license...................0+. 47a

Cassell testimony on Habiltability and cleanliness..48a

Testimony of John Smith....................ccceeeeeees 48a-50a

TABLE OF AUTHORITIES

Cases ; Page

Cincinnati Oakland Motor Co. v. Meyer,

(Ct. App. Ohio, Hamilton County, 1930),

UE GM Pe nicutsthiietsdeiigbiemai heen a! ..23, 24

Dobson v. Howe, (Ohio, 1912), 18 OCC NS 384....... 19

Edgerton v. Page, 20 N.Y. 281.......cecccscessseceececees... 17

Freedline v. Cielensky, 184 N.E.2d 433,

436 (Ohio Ct. App. 1961)...........ccccccceeceocees., 20, 22, 23

Gay v. Davey, 25 N.E. 425........cccccccssssscesseecececeeecee, 19

In re Cassell, No. 98-57642.....0..0..cccsccsesseseoseeeeeeee... 4

In re Cassell, No. 99-52491.........cccecccssccesseeecese... 5, 10

Jordan v. Miller,

179 N.C. 73, 75, 101 S.E. 550, 551......ecccccsecceeeeses.. 17

Katz v. Comisar, 28 ONP NS 10, See binciininssntieembras 18

Lawrence v. Triangle Capital Corp.,

628 N.E.2d74, 75-76 (Ohio Ct. App. 1961).....20, 21,22

Lemle v Breeden, Supreme Court of Hawaii,

51 Hawaii 426, 462 P.2d 470,

40 A.L.R.3d 637 (1969).........:ccccccsscssesssssessececcceess.. 15

Lindsey v. Normet, U. S. Supreme Court,

Sh Te CI ence Mesiistsnintandasnamiacssiccacsecauccc 9

Peters v. Durroh, 277 N.E. 2d 69......ccccceeecee0-..... 19, 20

Reste Realty Corporation v. Cooper,

53 N.J. 444, 452, |

251 A.2d 268, 272 (1969)........ccccccscccsescecceeees.. 15, 18

Smith v. Wright, 65 Ohio App.2d 101 (1979),

TP OR HT A i icihidisdntiatgatiat ee ice 20

Thompson v. Shoemaker, 7 N.C.App.. 687,

173 S.E.2d 627 (1970)...........ccccesesccococeceeee, 16, 17, 20

Constitution, Statutes, and Rules

Authority Page

Ped. R. Civ. PucesGeete Hi sccscssecsetiinsiniauninccnsaspescnns 1

O.C2. Baie BB ccciicsiccrtennteciimmamaaimaaal 2

@. Ch, Beas BENG c.iccsndineeneedeniaee 2

@. Ct, Baee BE BE icccnicctatascatmaee 2

BOb, Bald BEB aincccrccvsteintesdeasies l

anhantear Btls WIE .ccccecscsissiessestisicdandcamlieadadis 1

Daniarentey Beals COE .cccnissrsaccisscessnscnisaieenenaniaal 1

98 ULL. © WI cnicsnintstsiaaiaae 2

CBS Tiile 13 BOO ercesisscisicisicevsiccanaee 5

CICS Tile 11 B CRN a csnsisssecsnectsscscmniescisunn 8, 24

URS Tile 25 OU cinscrcssciscttcssrssnhaaae 8, 24

Chie RG. 6 WIDE. GA cccicicsntecincsttiaueel 19, 25

Chto RR. C. 0 ONDE A ccicwsissnsestvteemetmeananl 21

Chile BR. C. BORNE AR ciicicctemememnaee 7, 20

Chit R. OC. SOPRA MR cicsiticiccissicdieaaee 9,13

Clato R. C. § SEBLOAMMD......ccccccccccccscccccese 10, 13, 24

Ohio R. C. § 5321.04(A)(4)............ccccccesesseees 10, 13, 24

Gite BR. C. CORRE SE veer 9, 13, 24

Clits Bi, 6, @ BRE I iivscissssciicnaananel 20, 21

Chto 92 C. O ORR BI ccctscccsessscneinieaiiann 14, 20

Chto R. G. BOE Diicisiccsscceoeiacitanan 7, 20, 22

oD ee |. Rn A 7

Clete G0. 6 GDA ..nsnssencsiinaaiienianenee 19

Miscellaneous

Restatement, 2d, Property,

Ee 8

vii

Citations from the Courts Below

Cases Page

Addon Corp., 231 B.R. 385

GREE. DEED, Ge BG DDD...nccoccceccccsscccconcccocecesceseccnne, 32a

Anderson v. City of Bessemer City, 470 U.S. 564,

573, 105 S.Ct. 1504, 1511 (1985)............ccccccceeeee. 19a

Barlow v. M.J. Waterman & Assocs., Inc.

(In re M.J. Waterman & Assocs., Inc.),

227 F.3d 604 (6% Cir. 2000)............cccccccccceccceccceeee. 7a

Belfance v. Black River Petroleum, Inc. (In re Hess),

209 B.R. 79, 80 (B.A.P. 6% Cir.

aT issenncnscdeienninsbinisiatttadatintaildnisindeubteintinmunoniiieiiis nase. 19a

Corzin v. Fordu (In re fordu),

201 F.3d 693 (6% Cir. 1999).............cccesesecesesecseseeeee 6a

Davis v. Crush, 862 F.2d 84, 88 (6% Cir. 1988)....... lla

First Union Mortgage Corp. v. Eubanks (In re Eubanks),

219 B.R. 468, 469 (B.A.P. 6 Cir. 1998)................... 3a

Freedline v. Cielensky, 184 N.E.2d 433,

436 (Ohio Ct. App. 1961)..............cccccceeeeeeeeseees 4a, 2la

Halverson v. Estate of Earl R. Camerson

(In re Mathiason) 16 F.3d 234 (8% Cir. 1994)...1la, 19a

Herron v. Jupiter Transp. Co..,

858 F.2d 332, 335 (6 Cir. 1988)........................... lla

In re: Cassell, No. 99-5249 1.............ccccccsseccececcceceee 9a

In re Hamilton, 104 B.R. 525, 526-527

(Bankr. M.D. Ga. 1 TEE ee eae: 32a

In re McAllister, 123 B.R. 393,

395-97 (Bankr. D. Oregon 1991)........ccccecccceceoceoees 32a

Cases Page

In re Start The Engines, Inc.

219 B.R. 264, 270 (Bankr. C.D. Ca. 1998).............. 32a

Knox v. Sunstar Acceptance Corp. (In re Knox),

237 B.R. 687, 697 (Bankr. N.D. Ill. 1999).............. 10a

Lawrence v. Triangle Capital Corp.,

628 N.E.2d 74, 75-76 (Ohio Ct. App. 1993)....... 4a, 22a

Mapother & Mapother, P.S. C. v. Cooper, (In re Downs),

103 F.3d 472, 481 (6% Cir. 1996)..............cccseeceeeees lla

McGhee v. Sanilac County,

934 F.2d 89, 93 (6 Cir. 1991).............cccceceseseeeeees lla

Nicholson v. Isaacman (In re Isaacman),

26 F.3d 629, 631 (6% Cir. 1994)..............ceceseeeeeeeeees 3a

Providian Bancorp v. Schartz (in re Shartz)

221 B.R. 397 (B.A.P. 6t Cir. 1998)............cccecereees 18a

Rembert v. AT&T Universal Card Servs., Inc.,

141 F.3d 277, 280 (6 Cir.), cert. Denied,

SR Ui: Be Ci iccnsincccccnssncscsnscvarsctsssicssessececsses 3a

Runfola & Assocs., Inc. v. Spectrum Reporting I, Inc.,

88 F.3d 368, 374 (6% Cir. 1996)...............csccseeeseees lla

Silverman v. Mutual Trust Life Ins. Co.

(In re Big Rapids Mall Assocs.),

98 F3d 926, 930 (6% Cir. 1999).............cccccsseeeeseeeees 6a

Smith v. Wright, 416 N.E.2d 655,

GE GRD C FI. Bic cnnccecatsccasccsccsccscossenes 4a, 22a

Tedeschi v. Falvo (In re Falvo),

227 B.R. 662, 663 (B.A.P. 6 Cir. 1998).............c0000 3a

United States v. united States Gypsum Co.,

333 U.S. 364, 395, 68 S. Ct. 525(1948).................. 19a

Rule Page

as caccnncnssenspardainichaceseadccubecasicazencaie 3a

a I WW Dadi dacs shcdiicastcsiccsaddecdusdnsiuasiencece 2a

Federal Rule of

Bankruptcy Procedure 8012................cccccceeeees 6a, 18a

Federal Rule of

Bankruptcy Procedure 8013...............cceccccecee0s 3a, 2la

Federal Rule of

Bankruptcy Procedure 8015..............ssssssssecesessseees 15a

Federal Rules of

Bankruptcy Procedure 9011

dedeacbenéscsecesassecinoncoveicxens 6a, 7a, 9a, 10a, 25a, 27a, 3la

i ee Oe chiisidicsdanccnelescesunibeisinansicnc. cose cos: 23a

Ee 6a, 18a

Fe I MR ainnsicsensnnsncinicdicconionndssesincsctnssss cl 6a

ey Sis MID inicinnskeccspsicnsennssicconvocasancecansace 22a

ee SI Riaicacctisncdiinnincsabsnsnanivdsncdscsmessontes 22a

Ohio R.C. §5321.04(A)(2).............cccccsssscccssssoeee 4a, 22a

Ohio R.C. §5321.04(A)(4)...........ccccccssececesessseeee 4a, 22a

Rule 34(j)(2)(C), Rules of the Sixth Circuit.......... 2a, 4a

Pn ee

PETITION FOR A WRIT OF CERTIORARI

CITATIONS TO OPINIONS BELOW

Pursuant to S. Ct. Rule 14.1(d), Petitioner

submits that no publication has been made of the

decisions of the Bankruptcy Appellate Panel or of the

Sixth Circuit. Electronic citation has been made for

the Reversal of the Sanctions Order by the BAP and is

found at:

Court of Appeals. ELECTRONIC CITATION: 2000 FED

App. 0011p, (6% Cir.), File Name: O0b0011p.06

JURISDICTIONAL STATEMENT

This is a Petition for Certiorari in regard to a

decision of the United States Court of Appeals for the

Sixth Circuit entered on June 15, 2001. No party has

sought rehearing or any extension of time to file this

petition. Review of the Bankruptcy Court's orders on

the Timmons Heirs’ claim is based upon an “abuse of

discretion” as well as a “clearly erroneous review of

finding of facts and improper conclusions of law” as

delineated by bankruptcy rule 8013 and Federal Rule ;

of Civil Procedure 52(a).

Two orders issued from the bankruptcy court in |

regard to the claim of the Timmons Heirs. The first !

order established the claim at $459.00 and that

judgment was_ subsequently affirmed by the i

Bankruptcy Appellate Panel (BAP) and again by The

United States Court of Appeals for the Sixth Circuit

(6th Circuit). Prior to the BAP’s affirmation of the first

claim order, the bankruptcy court issued a second

order that levied sanctions for alleged violations of

Bankruptcy Rule 9011 and reduced the ciaim of the

Heirs to $0.00.

This second order was reversed on appeal by

the BAP. Even though the sanctions were reversed,

and superficially it would appear that the Timmons

Heirs had won, they continued with an appeal from

the BAP decision on the second order. The BAP had

failed to address the claims portion for the second

order, and indicated that this issue had been resolved

and affirmed in their decision rendered for the first

appeal. However, the Heir’s reasoned that if the

second order was a final order that sanctioned as well

as established the Heirs’ claim, then the first claim

order must have been interlocutory and was not a final

appealable order.

The Sixth Circuit affirmed the first claim order

as the controlling order in the second appeal but

affirmed the Bankruptcy Appellate Panel’s reversal of

the second order. It would seem that the first claim

order, like Lazarus, has now risen from the dead.

Affirmation by the Sixth Circuit thus confers the

jurisdiction for the resolution of this controversy in the

United States Supreme Court pursuant to 28 U.S.C. §

1254(1) and S. Ct. Rule 10(a) and 10(c).

STATUTORY PROVISIONS INVOLVED

Pursuant to S. Ct. Rule 14.1(f), Petitioners have

set out in full text the cited portions of The Ohio

Revised Code, The United States Code, and various

selections in the Appendix; at 37a — 50a

History

Timothy Scott Cassell is a United States Mail

Carrier. In 1992, he rented a dwelling owned by the

Timmons Heirs for the month to month payment of

$250.00. The property was an older farmhouse south

of Columbus, Ohio and situated on a dirt and gravel

lane about two thousand feet from U.S. Rt. 23, a

principal highway. The house has a partial basement,

OL ay

with access from the outside, four large rooms and a

bathroom on the first floor, with three bedrooms on

the second floor. The age of the house is unknown,

but a submersible pump supplied the house from a

drilled well. The kitchen had a sink and cabinets, a

modern bathroom had been added about 1970, and

about 1971 a forced air, fuel oil furnace had been

installed in the basement with ductwork and warm air

registers for the first floor. However, the windows and

doors were not completely air tight, some bricks had

falien from a chimney, some wooden steps for the front

porch had deteriorated (later removed), and a porch

floor had begun to sag.

John Timmons, one of the Timmons Heirs,

acted as agent for the family and pointed out the

defects to Cassell and a verbal lease was negotiated

with a monthly rent established at $250.00; a price

below market but with an allowance to compensate for

the presumed higher heating costs. Possession of the

property was transferred to Cassell without the

requirement of a security deposit. Shortly after

Cassell moved into the house, and without a rent

increase, John Timmons purchased a modern airtight

wood burning stove that was installed on the first

floor.

About 1996, the bathroom roof had started to

leak and was repaired although the damaged

plasterboard in the bathroom was not replaced. In

May of 1998, Cassell informed John Timmons that the

bathroom floor was sagging. An agreement was made

at this time that if Cassell paid up his delinquent rents

and remained current with future rental payments,

then Timmons would repair the floor and plasterboard.

There was also an agreement to increase the monthly

rental rate to $300.00.

In June of 1998, Cassell paid some of the

delinquent rents and Timmons thereupon asked a

local contractor to inspect the house and submit an

estimate for repairs. His report stated that the joists

and subfloor were rotted and a completely new floor

was needed. The cause was attributed to a pipe that

had frozen and split and was now spraying water on

the substructure.

Timmons asked for the balance of the rent in

July but was informed that Cassell had contacted a

lawyer and would need to file a bankruptcy by the end

of the month and that Timmons would be included as

a creditor. In August, Cassell informed Timmons that

the reorganization had been delayed but would be filed

soon. Two weeks later, Cassell informed Timmons

that the Chapter 13 Petition had just been filed. In

another two weeks, Timmons again asked for the rent

and asked why notice had not been received: Cassell

stated that he would check with his attorney. A

subsequent explanation was that the attorney had

forgotten to include Timmons on the List of Creditors

but would immediately modify the Petition to rectify

the oversight. Subsequent attempts to secure the rent

were met with hostility and contempt and even a

demand that Timmons get off the front porch. Further

attempts to secure the rent and to determine the

status of the reorganization proved just as fruitless

and on December 29, 1998, Timmons filed a Motion to

Dismiss for Case Number 98-57642 that had been

filed August 10, 1998.

Cassell was absent from the property for three

or four days at the beginning of 1999; this period

proved to be one of the winters coldest. Cassell was

again absent from the property at the end of January

1999. However, his personal property was left in the

house.

At the Dismissal hearing, held March 3, 1999, it

was determined that no payments had been withheld

from Petitioner's wages and no payments had been

made to creditors. The court dismissed the case for

nonperformance pursuant to a motion to dismiss

made by the trustee. Immediately after the hearing,

Timmons asked Cassell for the key so that he could

have possession of the house and thus begin cleanup

and repairs. Cassell stated at this time that he still

had personal property in the house and it was for him

to decide when the house was to be returned. Cassell

filed his second Petition for Reorganization under

Chapter 13, Case No. 99-52491, on March 22, 1999. _

On April 30, 1999, Timmons received a phone

call from Cassell informing him that he had removed

his personal property and that the key to the house

was in his mailbox. An inspection of the house, the

next day, found considerably more damage than had

been observed the previous summer. The upper tank

and the lower bowl of the commode had frozen and

now lay in pieces, the wastewater traps were split and,

when electricity was restored, it was discovered that

the plumbing had burst due to freezing. Twelve

broken windowpanes were discovered with broken

glass outside the house (plastic had been used to cover

the window sashes), and the bathroom floor was in

much worse condition than in the previous summer. A

hurried estimate was obtained for various repairs and

John Timmons did submit a claim on the bar date for

the sum of $7,750.00 dollars.

The court determined at hearing that Timmons

was not licensed to practice law and could no longer

submit documents for the Timmons Heirs. It was held

that John C. Timmons could represent himself but the

other two partners (siblings), Ann Timmons Root and

Pryor Brown Timmons Jr., would either need to

personally appear or would need to have

representation.! The Timmons Heirs did file an

1 John Timmons was dismissed from a pro se Chapter 12

Reorganization, by this court. The dismissal was allegedly

attributed to “bad faith and a lack of feasibility.” Evidence

of illegality or fraud was never introduced and the

allegations were predicated solely upon the “hardship” that

amended claim for the sum of $6,173.45 and did

appear together at subsequent hearings.

A hearing was held on the claim of the Timmons

Heirs that resulted in the order that denied back rent

and damages. The clean up costs and broken

windows were attributed to Cassell fo- an allowed

Claim of $459.00. A hearing was held on the Heirs’

Motion for Reconsideration and the Defendant's

Motion for ctions and Attorney fees. The Heirs

presented the defense that they had submitted an

amended claim with attached receipts (also indicating

that all work had not as yet been completed) and the

position that the continued possession of the house by

Cassell determined his liability for accrual of rent. The

Court failed to accept these arguments which

eventually resulted in the ensuing appeals.

STATEMENT OF THE CASE

This Supreme Court is now being asked, by the

Petitioners, to resolve issues that seems to be

intensifying in landlord-tenant relationships. Is that

relationship still dominated by the common law that

treats the lease as a conveyance of a property right or,

shall the lease now be considered as a contract?

Conveyance of a property right, with the transfer of

possession, infers that the covenants to pay rent and

to maintain and repair are separate and independent.

If the lease is now contractual in nature, then implied

warranties of habitability emerge with dependent and

. contingent covenants for rent payment from the tenant

might be imposed upon one creditor. The previous

reorganization lasted for a duration of five years. Appeals of

the dismissal order and a claims order were fruitlessly

pursued to the 6th Circuit Court. The legality for using a

bankruptcy “claims order” in a Judgment Decree In

Foreclosure for a first mortgagee was pursued in state court

and appeared at the U.S. Supreme Court as Case No. 97-

969 (cert. denied).

and the covenant to maintain and repair by the

landlord. In some jurisdictions, tenants have recently

been given the right to withhold rents and the courts

seem more inclined to impose penalties for failing to

maintain a standard of habitability that is increasingly

ratcheting upward

Failure to pay rent is a breach that oftentimes

terminates a lease with an accompanying eviction in

state court. Grounds for an eviction in Ohio are

spelled out by Ohio R.C. 5321.03 (1) for failure to pay

rent, and (2) for lack of reasonable care on the part of

the tenant who has complained to legal authorities of

housing code violations that are in fact attributable to

the complaining tenant. (Text at 36a). Eviction alone

does not necessarily terminate the landlord-tenant

relationship in Ohio because either party is entitled to

bring a second action pursuant to Ohio R.C. § 5321.12

for recovery of damages. This allows an action for

breach of contract or breach-of any duty that is

imposed by law (usually for unpaid rents but also for

damages sustained by the lessee). (Text at 36a)

The landlord forfeits a future benefit in the

stability of a lease for the right to regain possession

through a state court’s Forcible Entry and Detainer

action. The resulting eviction restores possession of

the property to the landlord and limits his losses to

one or two months of uncollected rent. The landlord,

pursuant to Ohio RC. 5321.12{1), can initiate a

second action to recover unpaid rent plus any

damages that can be attributed to the renter. In

reality, however, the landlord often absorbs the lost

rentals and repairs the damages without further

reliance upon the courts. An action to seek and collect

on a judgment is usually not worth the effort. The

evicted tenant likewise is penalized; his reputation is

exposed to, and suffers, public scrutiny and

subsequent attempts to secure decent housing may be

compromised.

Landlord-tenant Law

The Heirs believe that their claim against

Cassell is just and equitable and must be resolved by

a correct analysis of Constitutional, Federal, and Ohio

law. Not only should the damages and back rent be

awarded, but they should not be discharged in

bankruptcy. The Heirs believe that Cassell's decision

to stop paying rent was made before the petition date

for the first reorganization and after he had decided to

move from the property. It can be hypothesized that

Cassell decided that he would wait to be evicted or,

more probably, with knowledge of USC Title 11 § 362,

the automatic stay? (Text at 41a), resolved to maintain

possession as long as possible. This can be viewed as

a fraud that should not be encouraged or assisted by

the bankruptcy courts. The denial of discharge of debt

perpetrated and acquired by fraud is addressed by

tate e (U.S.C.) Title 11 a)(2){A) (text

at page 39a). The damages to the house were either

wilful destruction or inexcusable negligence on the

part of Cassell and also should not be discharged in

bankruptcy. The denial of discharge of debt for wilful

and malicious injury or damage is addressed at U.S.C.

Title 11 § 523 (a)(6) (text at 42a).

The applicable Federal position for the landlord-

tenant relationship after a lessee files for bankruptcy

protection is best found in Restatement, 2d, Property,

Landiord and Tenant §21.1 (Text at 42a). This “Black

Letter of the Law" does not equivocate about treatment

in the event of a bankruptcy of the lessee. Here the

landlord can retake possession (if the lease is rejected),

collect the pre-petition and post-petition rents, and

2 John Timmons was also cautious of the Automatic Stay

because of previous interactions with this court and with

the bankruptcy trustee whom he had subpoenaed in order

to obtain cancelled checks for his defense in the foreclosure

action in state court. However, Timmons did not receive all

checks.

recover damages allowed by the bankruptcy act. No

mention is made of a need to prove fraud or malicious

damage; the recovery is automatically allowed.

The United States Supreme Court, on review of

Oregon's Forcible Entry and Detainer law, previously

addressed the Constitutional issue in Lindsey; Lindsey

v. Normet, United States Supreme Court, 405 U.S. 56

(1972):

“We do not denigrate the importance of

decent, safe, and sanitary housing. But the

Constitution does not provide judicial remedies

for every social and economic ill. We are unable

to perceive in that document any constitutional

guarantee of access to dwellings of a particular

quality or any recognition of the right of a tenant

to occupy the real property of his landlord

beyond the term of his lease, without the

payment of rent or otherwise contrary to the

terms of the relevant agreement. Absent

constitutional mandate, the assurance of

adequate housing and the definition of landlord-

tenant relationships are legislative, not judicial,

functions.. Nor should we forget that the

Constitution expressly protects against

confiscation of private property or the income

therefrom.”

The e ord-Te t Act

(URLTA) was enacted in 1972 and is the codification of

the landlord-tenant relationship at the Federal Level.

The Qhio Residential Landlord tenant Act was

patterned after the URTLA and became part of the

Ohio Revised Code (O.R.C. or Ohio RC.) in 1974. It

retains its foundation in the common law; the .

covenant to pay rent and the covenant to maintain

and repair are separate and not contingent. Ohio R.C.

§ 5321.04 (text at 38a) delegates the responsibilities of

the landlord while Ohio R.C. § 5321.05 (text at 39a)

describes the duties of the tenant. The landlord is

required to maintain and repair ordinary wear and

tear whereas wasting of the premises by the tenant,

either intentionally or negligently, may result in

eviction and a secondary action for recovery of

damages attributable to the tenant.

The courts below have directed their attention to

the alleged condition of the property as portrayed by

the debtor Cassell: (The house) ---“was in an unfit

condition and the water damage resulted from the age

of the home and landlord neglect. Further, Ohio

landlord tenant law supports the bankruptcy court's

conclusion that the debtor was not liable for rent or for

damage to the property based upon its unfit condition.

See Ohio Rev. Code § 5321.04(A)(2) and (4).” Timmons

v. Cassell, 6 Circuit Opinion, (text at 4a); “----the

Debtor did not have to pay any rent because of the

property’s poor condition, which the court attributed

to the Heirs.” In re Cassell, No. 99-52491, BAP

Opinion (text at 8a). “Third, the court found that,

given evidence of the long standing abysmal,

uninhabitable condition of the home, and its age, that

all other charges for the claimed repairs were derived

from the neglect of the Timmons Heirs as the Debtor's

landlords.” In re Cassell, bankruptcy court’s Order

Imposing Sanctions, (text at 3la). “Finally, a

reasonable inquiry on the part of the Timmons Heirs

should have included some knowledge and recognition

of the extremely poor condition of the home to

determine what damages could fairly be attributed to

the debtor.” In re Cassell, bankruptcy court’s Order

Imposing Sanctions, (text at 33a).

It is often said that beauty lies in the eye of the

beholder and that one persons junk is another persons

treasure. The Timmons Heirs wish to assert that the

condition of the premises should have no bearing upon

Cassell’s failure to pay rent. The structure is an older

farmhouse but it should never be considered

“abysmal”. Nor was the property “uninhabitable” at

the time of the inspection made in June of 1998 when

Timmons agreed to remedy provided Cassell pay the

delinquent rents. Cassell had inspected the property

in 1992, before he har) agreed to the $250.00 per

month rent, and it may be assumed, because of this

reasonable rate, that the property was “worthy of its

hire”. The furnace worked properly at this time and

previous tenants had not had a problem with frozen

plumbing.

Claims hearing

On November 23, 1999, a hearing was held on

the debtor's objection to the claim of the Timmons

Heirs. During his testimony, Cassell stated that he

had various suppliers furnish heating oil for the

furnace but he sometimes brought his own fuel (in

five-gallon cans). He testified that 150 gallons would

heat the house for about one month. Further

testimony revealed that the furnace had not been

working for the last four or five years and that his

main source of heat had been the wood stove with

supplemental heat from electric and kerosene space

heaters that heated the first floor (transcript selection

at pg. 43a).*.

Cassell then testified that he had experienced

frozen pipes from the beginning and had become quite

8 Notice should be taken that John Timmons repaired the

plumbing and the bathroom and has now taken up

residence in the home formally occupied by Cassell.

Although the house requires expenditure of more money for

fuel in the winter, the location, access to a large barn and

several outbuildings, the increased size of the house, and a

large lawn were reasons to consider the premises superior

to the house that he occupied next door (100 yards away).

* It must be assumed that Cassell blamed Timmons for the

furnace not functioning properly even though Cassell never

reported the malfunction.

titi

adept at removing sections and replacing them with

new pipe. He acknowledged that the commode had

frozen and broken in January of 1999 but believed

that he was not responsible for the freeze damage to

the pipes or commode (transcript selection at pg. 43a-

45a).

Although not established directly from

testimony, it would have seemed that there must be

cause and effect; if heat is not maintained and the

furnace is not utilized, then pipes freeze.5 The toilet,

shower, and lavatory were still functional in June of

1998 when Timmons inspected the floor, and John

Smith testified at the hearing that he had to wait until

Cassell completed his shower before he could inspect

the bathroom floor in July of 1998.(transcript selection

at pg. 49a-50a).

Cassell further testified that the water in the

bathroom had to be shut off in 1999 and he was

forced to rent motel rooms in order to bathe and for

other hygienic purposes. However, he later admitted,

during cross-examination, that he had been going to

motels since 1997. This testimony identified a

recreational pattern that had continued into 1999

(transcript selection at pg. 43a).

Cassell hypothesized at the hearing that a

leaking roof (repaired two years earlier) had caused the

bathroom floor to rot which caused the bathtub to sag

which caused a water pipe to break which sprayed the

floor which caused the floor to rot, etc. etc. .(transcript

selection at pg. 43a-45a)

The Heirs contend that Cassell failed to heat the

house, the house froze, a water pipe under the

bathroom floor then burst, and, after it thawed, began

5 It should be noticed, although not in the record, that

Timmons had repaired pipes for Cassell several times and

refused to do more if Cassell would not maintain fuel for the

furnace and keep cellar doors shut.

spraying water on the bathroom floor. This caused the

floor to decay and it eventually began to sag in 1998.

However, when the Heirs submitted their amended

claim, they eliminated that portion which dealt with

structural damage. Although this was the most

probable explanation for the damaged floor, the Heirs

could not establish with certainty when the pipe had

frozen and if structural damage could be unequivocally

attributed to Cassell. The amended claim was limited

to damages for the repairs to the frozen plumbing, the

repair of the windowpanes that had been broken, the

loss of rents while the repairs were undertaken,

cleanup costs, and the delinquent rents

At the hearing, Cassell testified that he mowed

the yard and kept the property clean but admitted

under cross-examination that there was a problem

with trash and the yard was left in a very poor

condition.(Transcript at47a) John Smith, Mike Nickel,

and John Timmons independently testified that the

yard was a mess with trash, old tires, bagged cans,

chest high weeds and grass. (transcript selection at pg.

48a-50a).

- t Ss

The bankruptcy court and the reviewing courts

cite Ohio RC. § 5321.04 (A)(2) and (4) as the

controlling law after the bankruptcy court (improperly)

determined that the damages were attributable to

landlord neglect and failure to maintain. This section

of the Ohio Revised Code does require the landlord to

maintain and repair ordinary wear and tear (text at

37a). However, the Heirs feel that Cassell “trashed”

the house and ceased rental payments with fraudulent

intent. The relevant Ohio Revised Code should

therefore be found under Ohio R.C. § 5321.05 (6) that

requires the tenant to refrain from destroying, either

intentionally or negligently, the leased property (text at

37a).

’

;

Provisions are made pursuant to Qhio RC.

§ 5321.07 (A) and (B) (text beginning at 38a) for notice

to the landlord to repair defects pursuant to O.R.C. §

5321.04 and the steps that may be taken if repairs are

not timely provided. Provisions found in this section

requires the tenant to be current with rents and allows

a reasonable time for a landlord's performance. If not

corrected, then the tenant may deposit his rent with

the applicable clerk of courts and petition for court

ordered repairs, petition for release of the rents to be

applied for the repairs, or vacate the premises

(relinquish possession). The tenant could then defend

against a landlord's action for rent with the defense of

the doctrine of constructive eviction and breach of the

covenant of quiet enjoyment of his leasehold.

However, in a month to month verbal lease, it

would seem unnecessary to impose the formalities

required by O.R.C. § 5321.07. If the tenant retains

possession and pays his rent, theoretically he has

entered into a new lease term and has passively

accepted terms for the month that would encompass

the defect. The tenant could easily reject the new

monthly terms of the verbal lease by vacating the

leasehold and obtaining housing elsewhere. It would

seem, then, that economic factors control the verbal

lease.

If the tenant is responsible, exhibits good

husbandry over the premises, and is timely with the

rent, then a landlord is more than willing to repair or

allow the tenant the right to deduct reasonable repairs

from his rent. In the obverse, if the tenant fails to

mow the grass, fails to clean the house, causes

excessive depreciation, and his rental checks are

returned for insufficient funds, then the landlord may

wish that the current tenant would move. He would

then “throw the dice again and try to obtain a more

suitable tenant.”

Likewise, if the premises are worthy, reasonably

priced, and the landlord is cooperative, the tenant will

want to remain in a “good light” with the landlord and

will pay the rent. Differences are usually amicably

and informally worked out between the landlord and

tenant, with each wishing to please the other for fear

of loss with the uncertainty of another landlord or

tenant. Rejection of the verbal lease subjects the

tenant to moving costs and discomfort of dislocation

while the landlord usually loses one or more months

rents and suffers the discomfort of having to interview

prospective and unknown tenants.

Examination of Relevant Cases

Nowhere can we find a law that allows the

reformation of contracts after the consumption of

goods or services. The unexpected discovery of

cockroaches, rats, and other vermin in a dwelling at

the beginning of the leasehold might render a rental

unit unfit for habitation because of violations of

municipal health and safety codes. The tenant would

need to relinquish possession, however, to claim a

constructive eviction so that he might qualify for rent

abatement. The tenant may have been misled, defects

could have been hidden, or an unforeseen seasonal

impediment might occur (recurring flooded basement)

for the period that the prospective tenant inspected

but could not adequately evaluate his bargain. The

rule of caveat emptor should prevail unless

unavoidable mistake, fraud, or misrepresentations

were foisted upon the unwary tenant. See Reste

Realty Corporation v. Cooper, 53 N.J. 444, 452, 251

A.2d 268, 272 (1969).

However, as presented in Lemle, Lemle v Breeden,

Supreme Court of Hawaii, 51 Hawaii 426, 462 P.2d

470, 40 A.L.R.3d 637 (1969), equity would require the

individual to relinquish possession of the premises if

their sensibilities were so shocked when entering a

new leasehold. The correct remedy was found in

Lemle wherein the tenants moved into a property but

their right to the enjoyment of the premises was

interrupted by nocturnal invasion of rats from the

surrounding hills. They vacated the premises at the

end of three days and, in a subsequent action, argued

a constructive eviction and the landlord’s breach of an

implied warranty of habitability in order to recover

their deposits and prepaid rents. The courts returned

$1100.00 from the original deposit and advanced

rental of $1190.00; apparently $90.00 was allowed the

landlord for the three days that the Lemles possessed

the premises ($800 per month rental equates to

approximately $26.30 per day. The Lemles apparently

paid $11.10 more than their daily rate for the three

days). In order to have claimed constructive eviction,

the Lemleys needed to relinquish possession.

The courts are usually wary if a tenant seeks relief

from delinquent rents after he has held possession of

the premises for a lengthy period of time. See,

Thompson v. Shoemaker, North Carolina Court of

Appeals, 7N.C. App. 687, 173 S.E.2d 627 (1970). The

plaintiff in Thompson alleged that even though she was

poor and unable to seek other more expensive

housing, she was entitled to have a structure that

complied with the housing code. She sought the

return of her back rental payments plus damages for

her personal property as well as compensation for her

mental and physical agony perpetrated by the

substandard condition of her house and the failure of

the landlord to make the necessary repairs.

The courts held on appeal that the claim of

constructive eviction and illegality of the lease were

not applicable even though the premises were

substandard and the landlord had failed to repair.

The rents were voluntarily paid for fifty-three weeks

and the tenant had failed to abandon the premises

which would be necessary in order to argue

constructive eviction. The court further quoted from a ~

case decided in 1859, Edgerton v. Page, 20 N.Y. 281,

which held that:

“----jt would be grossly unjust to permit a

tenant to continue in possession of premises and

shield himself from payment of rent by reason of

alleged wrongful acts of the landlord.”

The courts further stated in Thompson that:

“Under the common law rule in effect in this

jurisdiction, a lessor is under no implied

covenant to repair the premises, and in the

absence of an agreement between the parties to

the contrary, is not under a duty to keep the

premises under repair, or to repair defects

existing at the time the lease is executed.”

“The fact that defendant’s alleged failure to

properly maintain the dwelling is in violation of a

municipal ordinance is not helpful to plaintiff

because she voluntarily continued to occupy the

premises after she learned of the violations. ----.”

The Thompson decision quotes from another North

Carolina case in regard to the covenant made by the

landlord to maintain and repair arising at the time the

lease was signed, and held that: “[T]he rule as stated

in the case of Jordan v. Miller, 179 N.C. 73, 75, 101

S.E. 550, 551, as follows:

Seren, A contract to repair does not

contemplate as damages for the failure to

perform it that any liability for personal injuries

shall grow out of the defective condition of the

premises; because the duty of the tenant, if the

landlord fails to perform his contract to repair, is to

do the work himself, and recover the cost in an

action for that purpose, or upon a counterclaim

in an action for rent, or if the premises are made

untenable by reason of the breach of contract,

the tenant may move out and defend in an action

for rent as upon an eviction.

Reste Realty Corporation v. Cooper, 53

N.J. 444, 452, 251 A.2d 268, 272 (1969) is another

case in which the Doctrine of Constructive Eviction

was argued after the tenant Cooper abandoned the

leased premises. Even though the tenancy had been

for more than one year, the court allowed the defense

because the lessor had not disclosed that rainwater

would flood the first floor and the landlord had not

performed on his promise to remedy after several

occasions of flooding

Although the doctrine requires that a tenant

exercise his option to _ relinquish possession

immediately or his right to relief under the doctrine

may be waived if not timely, the concept of deception

or misrepresentations in the formation of the lease

were foisted upon the unwary Cooper. It was the duty

of Reste Realty to disclose, and remedy, the condition.

The doctrine still would not relieve Cooper from his

rental liability that would continue until the date of

the surrender of possession.

Katz v. Comisar, 28 ONP NS 10, (1930) is

another vermin case that trumps the above cited

cases. The plaintiff moved into a flat and found

bedbugs. These insects could be found in the

surrounding apartments and Katz (supposedly)

quickly moved out. It was held that:

“The presence of vermin in a flat at the

beginning of the term without the fault of the

tenant but to other

flats in the same building, has been held to be a

constructive eviction”.

Katz is identical to Reste from the standpoint

that misrepresentation, unavoidable mistake, or

deception may have been present at the formation of

the lease. The termination of the lease would be the

date of abandonment where theoretically, as in Lemle,

a determination of the rent could be prorated; some

benefit was received by Katz if only for a _ short

duration.

Ohio R.C. § 5301.11 addresses the situation

found when the property is rendered uninhabitable by

calamity or fire. This section absolves the tenant from

paying further rent when a structure is rendered

untenable by calamity if the tenant is not at fault or

has not perpetrated the act by his own neglect. The

lessee must also, at this time, surrender possession so

that he will be granted relief from further rental

payments. (Text at 36a).

Gay v. Davey, (Ohio 1890), 47 Ohio St 396, 25

N.E. 425 is a case that was brought to Ohio General

Code § 6521, the precursor of Ohio R.C. 5301.11:

“The Statute, im case the buildings are

destroyed, does not clothe the landlord with the

power of terminating the lease, and if the tenant

alone is to have the option of so doing and may

be discharged from the obligation to pay rent, he

must give up the possession and control of the

premises to him who is entitled to the revision.”

Dobson v. Howe, (Ohio 1912), 18 OCC NS 384 is

a case that parallels Gay v. Davey. A grocery store

burned and the landlord was notified that the tenant

Howe would immediately vacate and _ relinquish

possession. Landlord Dobson sued for his rent stating

that it was the duty of Howe to repair and then offset

from the rents or counterclaim in the action for rent.

The courts held that: “The lessee of a building which,

without fault or neglect on his part, is destroyed or so

injured by the elements or other cause ------- . The

lessee _mus 4 on of the

premises so leased.”

Peters v. Durroh, 277 N.E.2d 69:

The defendant had allowed water to overflow in the

kitchen of an apartment and the floor was ruined. The

tenant vacated the property but left his possessions in

the premises and retained the keys. The courts held

that the tenant was responsible for the repair of the

floor because of his negligence and the rent continued

until the keys were returned. Possession was not

terminated until the personal property was removed

d the ke ed.

on o s Cited Below

The Appellate Courts have cited three cases to

support the bankruptcy court’s denial of rent and

repairs to the Timmons Heirs. These are: Freedline v.

Cielensky, 184 N.E.2d 433,436 (Ohio Ct. App. 1961),

Lawrence v. Triangle Capital Corp., 628 N.E.2d74, 75-

76 (Ohio Ct. App. 1961), and Smith v. Wright, 65 Ohio

App.2d 101 (1979),416 N.E. 2d 655, 661. The

Timmons Heirs believe that the cases either support

their position or they should have been reversed if

appealed.

In Smith, the action was for eviction of the

tenant for failure to pay rent pursuant to Ohio RC.

§ 5321.03. The tenant claimed infestations of insects,

rodents, etc. as an excuse for nonpayment. When the

magistrate determined that the tenant had not

complied with O.R.C. § 5321.07 for notice to remedy

and deposit of rents with the clerk of court, then no

further defense could be entertained and the landlord

prevailed. Smith reinforced the common law that the

covenant to pay rent was separate from the covenant

to repair and maintain. This would not have

precluded the tenant from pursuing damages with a

separate action pursuant to O.R.C. § 5321.12 or asa

counterclaim in an action by the landlord to collect the

back rent. However, in the separate action for rent, it

would seem that the tenant could not claim a

constructive eviction because he retained possession

as determined in Thompson.

In Lawrence, the court granted abatement of

the first three months rent because of an alleged

infestation of cockroaches. The tenant complained to

the landlord who then sent exterminators to remedy

the situation. When a second complaint was received,

the landlord sent the exterminator a second time.

However, Lawrence also complained to housing

authorities and an inspector for the health department

found dead roaches. The inspector issued an order to

eliminate the roaches but Lawrence applied to the

courts and began depositing rents as provided in

O.R.C. § 5321.07. This section of the Code affords the

landlord an appropriate time, usually thirty days, to

remedy the defect. The landlord responded twice to

the complaints and it must be assumed that the

remedy or extermination was successful because the

text of the decision indicates that the inspector found

dead roaches.

The concluding arguments presented in

Triangle’s brief, are quite appropriate although

discounted (ridiculed?) by the court:

“Although the existence of vermin in an

apartment may cause the tenant some trouble in

eradicating them, it is not always a matter of

sufficient gravity to relieve the tenant of his

liability. The evidence does not reflect that Mrs.

Lawrence was deprived of the beneficial use of

the premises in a substantial manner. At no

time did the housing inspector find that the

premises were uninhabitable or truly unsafe

during the relevant time frame associated with

this case.”

Tenant complaints to a building or judicial

authority for building, housing, safety, or health code

violations does partially immunize the tenant from a

landlords future actions because she can then claim

retaliatory eviction or retaliatory rent increase

pursuant to Ohio RC. § 5321.02 [A); it must be

acknowledged that Lawrence did receive an abatement

of $1170.00 which should now be considered as an

unjust reward.. It must be assumed that Lawrence

had ample time in which she could inspect the

premises, before the lease was signed, and had not

seen or discovered the cockroaches. The landlord

should not be faulted for fraud in the inducement to

enter a contract unless the complaining party could

prove that the landlord had previously been aware of

the problem; this was never argued. As provided in

Lemle, the proper course was for the complaining

party to immediately vacate the property on a claim of

constructive eviction. In an action under Ohio RC.

9321.12, she then could seek the return of her deposit

and that part of her advanced rent to which she was

entitled for damages to her right to peaceful enjoyment

of the premises. The tenant did not relinquish

possession and, as in Thompson, she could not claim

constructive eviction. Lawrence should have been

reversed on appeal.

In Freedline, the court held that a tenant is only

obligated to repair or improve premises when there is

an agreement to do so, or if the tenant’s conduct

amounts to waste. He is not obligated to make repair

made necessary as a result of ordinary wear and tear.

The Freedlines and the Cielenskys were friends who

had exchanged services, without expectation of

recompense. Freedlines provided their basement rent

free for five and one half years and the Cielenskys had

used their own funds to install non-removable fixtures

and improvements to the basement that they used for

an apartment. At the end of five years and seven

months, the widowed Mrs. Freedline asked that the

Cielenskys begin paying rent. The Cielenskys

thereupon filed suit for the improvements they had

made in the basement. The second part of the

decision stated that, in a tenancy at will, “A tenant is

only o fe) rove ses which result

from an agreement to do so, or as a result of conduct

that amounts to waste. He is not obligated to make a

repair made necessary as the result of ordinary wear

and tear.” This ruling was patterned after the

language found in Cincinnati Oakland Motor Co. v.

Meyer, (Ct. App. Ohio, Hamilton County, 1930), 174

N.E. 154. This case was for the return of moneys

expended by a tenant to install a new furnace, after

several years of occupancy, because it would have

been the same cost if they had repaired the old

furnace.

“(1).. In the absence of statute, ordinance, or

express i. pnp or covenant, the Ieasor_Dandior®)

is not bound to to the le

“(2). In the absence of express secaainne:

covenant, statute, or ordinance, the tenant's obligation

is not to re but is t

ent st vo waste to re e

re s to the rd subs as

condition as received, wear and tear excepted.”

Because the Cincinnati Oakland Motor Co. had

not presented evidence to prove the depreciable life of

the furnace, they could not prove that the defect was

caused by ordinary wear and tear and thus had to pay

for the new furnace. “The stipulation being wholly

silent as to the cause of the defective condition of the

plant, burden be on the tenant to re

replace, unless excused by a showing that reasonable

wear _and tear had caused the defects, we are

constrained to hold that the installation was for the

tenant's benefit and in fulfilling his duty, and must be

at his cost.”

The operative words applicable to this case are

found in the phrases: “or as a result of conduct that

amounts to waste.” Freedline. And further:“the

t's ob is not to . but is

effect t t vo waste

and_to return the premises to the landlord in

subs fe) fe) received, wear and

tear excepted.” Cincinnati Oakland Motor Co. v. Meyer.

Conclusions

The bankruptcy court and the reviewing courts

have stated that the damage to the premises leased by

Cassell, was attributed to landlord neglect and was

controlled by Ohio R.C. 5321.04 (A)(2) and (4). This is

contrary to the preponderance of the evidence and

must shock the sensibilities of any reasonable person

and leave that person with the firm impression that

error, mistake, and injustice has been committed. The

record and proceedings, pertaining to this case,

indicates that a travesty has been committed, in the

interpretation of the laws and statutes of The United

States and of The State of Ohio. A reasonable analysis

arrived at by reasonable people would necessitate the

conclusion that Timothy Scott Cassell, either

negligently, by failing to exercise a required covenant,

or intentionally by commission of act, caused the

damage to the Timmons Heirs’ property. This would

not be a violation of the landlord’s duties prescribed by

Qhio R.C. 5321.04 but must instead be considered a

violation of a tenant’s duties as prescribed by Ohio

R.C. 5321.05. The covenant to cause no harm and to

return the property to landlord in essentially the

condition that it had been received, absent ordinary

wear and tear, has been violated.

The damages to the premises must be assigned

to Cassell and and should be viewed as malicious and

intentional or wilfully negligent and should not be

discharged in bankruptcy pursuant to USC Title 11

§523 (a)(6). Likewise, Cassell’s withholding of rent was

a wilful and intentional act and, if committed while

under the protection of bankruptcy law and the

automatic stay must be considered a fraud. Cassell

should not be discharged in bankruptcy pursuant to

USC Title 11 § 523 (a)(2)(A) ©

If the building had been damaged or destroyed

by fire, weather, or other circumstance that was not

Cassell's fault, then the action would be entertained

pursuant to Ohio R.C. 5301.11. However, to obtain

relief under that section of the Code, Cassell would

have had to relinquish possession. The rents would

continue until his personal goods were removed from

the premises and the keys were returned to the

landlord. This would be consistent with Peters v.

Durroh. In all circumstances, it seems that in order to

escape further liability for rent, Cassell would have

had to remove his property and return the keys.

Constructive eviction necessitates that possession is

returned to the landlord.

The tenant Cassell seems oblivious to the fact

that there is cause and effect between his

responsibility to maintain heat in the premises and the

resulting damage to the premises. Water pipes,

commodes, waste-water traps, and the structure of the

premises itself were damaged, primarily due to the

water released after the house froze, but the

contributory agent was Cassell who permitted the

house to freeze. When asked by his attorney if he had

broken the commode, he nebulously answers no, that

he did not break the commode but that there was

water in the commode that froze, and that caused the

commode to break. He promotes the fanciful analysis

that a leak in the roof, two years previously, had in

some manner caused the floor to rot. This allowed the

6 It should be noted that three months rent or treble

damages with reasonable attorney fees, can be levied

against a tenant who retains possession and whose holdover

is wilful and not in good faith pursuant to § 4.301(c) of the

Uniform Residential Landlord and Tenant act. However, no

such provision can be found in the 1974 Ohio Residential

Landlord and Tenant Act.

floor to fail, the bathtub to sink, and this series of

events caused a water pipe underneath the bathroom

floor to break. This analysis stretches the bounds of

reason and falls into the lap of ridiculous, the arms of

ludicrous, and consorts with the daughter of idiocy.

An attorney that utilizes every known and reasonable

avenue in the promotion or defense of his client should

be praised. Likewise, fanaticism in the pursuit of a

cause at the expense of reason and common sense is a

mark against the integrity of the legal system and

should not be tolerated.

The Timmons Heirs are partners by devise with

interests in property inherited from their parents. The

concept of the Common Law Doctrine of Seizin is as

unfamiliar and perplexing to them as is the recent

action of a local court (Columbus, Ohio) that held a

landlord in contempt for failing to maintain his rental

properties. This individual has been sentenced to 180

days in jail (suspended) and has been ordered to

occupy one of his housing units until all units are

repaired. He has recently been ordered back to court

for failing to timely repair pursuant to the courts’

finding of contempt. The penalty for this failure to

timely repair could possibly be the re-imposition of the

180 day jail sentence. This individual has indicated

that he intends to sell his properties because tenant

complaints have imposed an enormous financial and

emotional burden with attendant unforeseen and

unexpected legal demands.

It would appear that the actions of that court

may be well intentioned but in fact are misguided (if

not unconstitutional) and will have a negative effect

upon the housing market. Very few individuals will

wish to invest in properties that might subject them to

imprisonment. Also, this court’s action may in fact be

sinister with a de facto “confiscation of private

property”. Whatever the situation, the complaining

tenants will eventually lose because of the resulting

reduction in supply of housing units or the increased

cost of housing to offset higher maintenance costs and

legal fees.

The Petitioners believe that landlord-tenant law

may be viewed as a string. The string follows either an

unobstructed and unfettered path, with free market

forces pulling the string, or is shoved into a hopeless

jumble in which the courts exert increasing pressures

from behind to force the string into the “correct” path.

Respectfully Submitted September12, 2001

APPENDICES

BIAA~ AEN IO

BE SE BERENS REEL. MINCE SA LE MEISE AS ARP LR

No. 00-4523

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

In re: TIMOTHY SCOTT CASSELL,

Debtor

JOHN C. TIMMONS; PRYOR B. TIMMONS, JR.:

ANN T. ROOT,

Appellants,

¥.

TIMOTHY SCOTT CASSELL; FRANK PEES, Trustee,

Appellees.

Nem Norm Nee Nee Ne Ne Ne Nee ee ee Nee

Filed

June 15, 2001

LEONARD GREEN,Clerk

Sixth Circuit Rule 28(g) limits citation to specific situations.

Please see Rule 28(g) before citing in a proceeding in a court in the

Sixth Circuit. If cited, a copy must be served on other parties and

the court. ‘

This notice is to be prominently displayed if this decision is

reproduced.

Before: MARTIN, Chief Judge; NORRIS, Circuit

Judge; QUIST, District Judge.”

John C. Timmons, Pryor B. Timmons, and Ann

T. Root (the “Timmons Heirs”), appeal a judgment of

7 *The Honorable Gordon J. Quist, United States District Judge for

the Western District of Michigan, sitting by designation.

the Bankruptcy Appellate Panel (“BAP”) which affirmed

two decisions of the bankruptcy court of the Southern

District of Ohio. This case has been referred to a panel

of the court pursuant to Rule 34(j)(1), Rules of the

Sixth Circuit. Upon examination, this panel

unanimously agrees that oral argument is not needed.

Fed. R. App. P. 34{a).

Because the parties are familiar with the factual

and procedural history of this case, we need not

recount it here. Suffice it to say that the debtor,

Timothy Scott Cassell, lived in a house rented from the

Timmons Heirs until shortly before he filed his

Chapter 13 petition in the bankruptcy court. The

Timmons Heirs, filed a claim for rent and damage to

that property and the debtor objected to it. The

bankruptcy court entered an order allowing the claim

in part, but disallowing amounts for rent and water

damage. The Timmons Heirs appealed the

disallowance of those amounts to the BAP. They also

appealed the bankruptcy court's denial of their motion

for reconsideration. The BAP affirmed the bankruptcy

court’s disallowance of the claim amounts for rent and

water damage on June 19, 2000. The BAP also

affirmed the bankruptcy court’s denial of the motion

for consideration in that same opinion. No notice of

appeal was filed from the BAP’s June 19, 2000

decision.

The bankruptcy court also sanctioned the

Timmons Heirs under Bankruptcy Rule 9011 for their

conduct in connection with the filing of their claim in

this case. The Timmons Heirs appealed that decision

to the BAP. The BAP concluded that the bankruptcy

court abused its discretion in imposing sanctions and

reversed the bankruptcy court’s decision. The

Timmons Heirs filed a notice of appeal to this court on

December 6, 2000.

Initially, the debtor contends that the Timmons

Heirs’ notice of appeal targets only the November 6,

2000 BAP decision, not the June 19, 2000 BAP

decision, and that our review should be limited

accordingly. See Fed. R. App. P. 3(c) (stating that the

notice of appeal must designate the challenged order

or judgment). The contention is rejected. The

Timmons Heirs’ notice of appeal, although inartfully

drafted, invokes both orders.

Bankruptcy cases differ from most other

federal cases in that the court of appeals does not

afford first-instance appellate review. Rather,

Congress has provided for intermediate review,

conferring on district courts and federal bankruptcy

appellate panels the authority to hear appeals from

bankruptcy court decisions, but preserving to the

parties a right of further review in the courts of

appeals. See 28 U.S.C. § 158. Whether such an

appeal comes to this court by way of the district

court or the BAP, the standard of review is the same:

this court focuses on the bankruptcy court's

decision, scrutinize that court’s findings of fact for

clear error, and afford de novo review to its

conclusions of law. See Rembert v. AT&T Universal

Card Servus., Inc. (In reRembert), 141 F.3d 277, 280

(6th Cir.), cert. denied, 525 U.S. 978 (1998):

Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629,

631 (6th Cir. 1994). Findings of fact are reviewed

under the clearly erroneous standard. See Fed. R.

Bankr. P. 8013. A finding of fact is clearly erroneous

“when although there is evidence to support it, the

reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.” Tedeschi v. Falvo (In re Falvo), 227 B.R.

662, 663 (B.A.P. 6th Cir. 1998) (citations omitted).

Conclusions of law are reviewed de novo. “De novo

review requires the Panel to review questions of law

independent of the bankruptcy court's

determination.” First Union Mortgage Corp. v.

Eubanks (In re Eubanks), 219 B.R. 468, 469 (B.A_P.

6th Cir. 1998).

Upon_ review, we conclude that sufficient

evidence in the record supports the bankruptcy

court’s order disallowing the Timmons Heirs’ claim.

The home in question was in an unfit condition and

the water damage resulted from the age of the home

and landlord neglect. Further, Ohio landlord and

tenant law supports the bankruptcy court's

conclusion that the debtor was not liable for rent or

for damage to the property based on its unfit

condition. See Ohio Rev. Code § 5321 .04(A)(2) and

(4) (Banks-Baldwin 2000); See Lawrence v. Triangle

Capital Corp., 628 N.E.2d 74, 75-76 (Ohio Ct. App.

1993); Smith v. Wright, 416 N.E.2d 655, 661 (Ohio Ct.

App. 1979); Freedline v. Cielensky, 184 N.E.2d 433,

436 (Ohio Ct. App. 1961).

Accordingly, the orders of the BAP, dated

June 19, 2000 and November 6, 2000, are affirmed.

Rule 34(j)(2)(C), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

/S/ Leonard Green

Clerk

ELECTRONIC CITATION: 2000 FED App. 0011p

(6% Cir.) File Name: 00b0011p.06

BANKRUPTCY APPELLATE PANEL

OF THE SIXTH CIRCUIT

In re: Timothy Scott Cassell,

Debtor

JOHN C. TIMMONS, ET.AL.,

Appellants

Vv.

TIMOTHY SCOTT CASSELL,

Appellee

Nem Nem re Nee Nr Ne Nee Nee Nee Nee Nee ee

No. 00-8037

Appeal from the United States Bankruptcy Court for

the Southern District of Ohio, Eastern Division, at

_ Columbus.

No. 99-52491

Submitted on Briefs: October 4, 2000

Decided and Filed: November 6, 2000

Before: MORGENSTERN-CLARREN, RHODES, and

STOSBERG, Bankruptcy Appellate Panel Judges.

COUNSEL

ON BRIEF: David G. Korn, Columbus, Ohio, for

Apellee. Ann T. Root, Columbus, Ohio, pro se, Pryor B.

Timmons, Jr., Hilliard, Ohio, pro se, John C.

Timmons, Lockbourne, Ohio, pro Se.

OPINION

PAL E. MORGENSTERN-CLARREN, Bankruptcy

Appellate Panel Judge. The bankruptcy court

sanctioned John Timmons, Ann Root, and Pryor

Timmons (the “Timmons Heirs” or the “Heirs”)® under

Bankruptcy Rule 9011 for their conduct in connection

with the filing of a claim in this Chapter 13 case. The

Timmons Heirs appeal that decision. The Panel has

determined after examining the briefs, appendix, and

_ record that oral argument is not needed. FED. R.

BANKR. P.8012. For the reasons stated below, the

Panel concludes that the bankruptcy court abused its

discretion in imposing sanctions, and so we

REVERSE.

I. JURISDICTION AND STANDARD OF REVIEW

The Bankruptcy Appellate Panel of the Sixth

Circuit has jurisdiction over this appeal from a final

order of the United States Bankruptcy Court for the

Southern District of Ohio. 28 U.S.C. §~ 158(a)(1) and

(c). Decisions regarding the imposition of sanctions

under Bankruptcy Rule 9011 are reviewed for an

abuse of discretion. Corzin v. Fordu (In re Fordu), 201

F.3d 693 (6th Cir. 1999). A bankruptcy court “abuses

its discretion if it bases its conclusion on an erroneous

version of the law or on a clearly erroneous

assessment of the evidence.” Silverman v. Mutual

Trust Life Ins. Co. (In re Big Rapids Mall Assocs.), 98 F

3d 926, 930 (6th. Cir.1999). The overall question is

whether the reviewing court has a definite and firm

conviction that the trial court committed a clear error

8The Timmons Heirs are heirs (through their parents’

pending probate estates) to rental property which was leased by

the Debtor.

of judgment, using the reasonable person standard.

Barlow v. M.J. Waterman & Assocs., Inc. (In re MJ.

Waterman & Assocs., Inc.), 227 F.3d 604 (6th Cir.

2000).

Il. ISSUE ON APPEAL

The issue is whether the bankruptcy court’s

decision to sanction the Heirs under Bankruptcy Rule

9011 was an abuse of its discretion.

Ill. FACTS

Prepetition. the Debtor rented a house from the

Timmons Heirs under an oral lease. John Timmons

was primarily responsible for the rental relationship

with the Debtor. The Debtor filed his Chapter 13 case

on March 22, 1999 and the court set a bar date for

filing proofs of claim. The Timmons Heirs regained

possession of the house at some point between the

case filing date and the bar date.

_ John Timmons, on behalf of the Heirs, signed

and filed a timely proof of claim. The claim totaled

$7,750 and set forth specific amounts for rent

(calculated at $300 a month for 11.5 months),

property damage allegedly caused by the Debtor, loss

of rental income, and property clean-up ($200),

without attaching any supporting documents. The

Heirs had not yet begun to repair the house at the

time the original claim was filed. The Debtor objected

to the claim as filed, but “recommended” that it be

allowed in the amount of $896 ($600 for two months

rent, $96 for window damage, and $200 for property

clean-up). The Debtor did not dispute that he had

stopped paying rent prepetition. He asserted,

however, that the additional amounts for rent and

property damage should be disallowed because the

house was uninhabitable and any damage resulted

from landlord neglect.

Later, after the property repairs were underway,

all three Heirs signed and filed an amended claim in

the amount of $6,173.45.9 They attached receipts for

some of the repair expenses and identified other claim

amounts as estimated because the repair work was in

process. The Heirs also stated that they were doing

other work to improve the house and that these

repairs were not chargeable to the Debtor. They

reduced the amount attributable to property damage,

which explains the lower claim amount.

The bankruptcy court held an evidentiary

hearing on the objection to claim, at which time the

Heirs argued that the Debtor caused the property

damage when he allowed the pipes to freeze and the

Debtor argued that the damage resulted from the

Heirs’ failure to maintain the property. The court

allowed the claim in the amount of $459

($259 for window damage and $200 for clean-up). All

other amounts were disallowed because the court

found that the Heirs did not prove their claim and that

the Debtor did not have to pay any rent because of the

property’s poor condition, which the court attributed

to the Heirs.!°

The bankruptcy court then issued a show

cause order that required the Timmons Heirs to:

show cause why they should not be

sanctioned for failure to have evidentiary

support for all of their factual contentions

contained in their Proof of Claim and to

9 The document is titled “Claimants['] Receipts for Repairs.” The

three Heirs signed this in compliance with the court's ruling that

John Timmons, a non-lawyer, could only represent himself. _—

all acted pro se throughout these proceedings.

10This Panel affirmed the claim decision in Timmons v. Cassell (In

re. Cassell), Nos. 00-8009 and 00-8010 (B.A.P. 6 Cir. June 19,

2000) on the grounds that the factual findings were not clearly

erroneous and Ohio Landlord-tenet law supported the legal

conclusion that no rent was due because of the property's

condition.

establish that their claim was not filed to

harass, cause unnecessary delay or needless

increase in litigation costs as contemplated by

FRBP 9011(b).

In re Cassell, No. 99-52491, Order to Show Cause for

Imposition of Sanctions at 1-2 (Bankr. S.D. Ohio Dec.

1, 1999). The court held a hearing on this order and

issued a written opinion. After reviewing its original

decision -concerning the claim and the law

surrounding Bankruptcy Rule 9011, the court

concluded that sanctions should be imposed because:

a reasonable inquiry was not made prior to

the filing of the claim, and that indeed Mus.

Root and Mr. Pryor Timmons did not have

any independent knowledge of the contents

of their own claim. A reasonable inquiry

would have dictated some explanation for

the contractual basis for the claimed rental

atrearage and the provision of invoices

and/or receipts to evidence claimed

damages and cleaning expenses. Finally, a

reasonable inquiry on the part of the

Timmons Heirs should have included some

knowledge and recognition of the extremely

poor condition of the home due to its age

and significant structural problems. The

Timmons Heirs simply filed a claim, and

what ensued was the previously detailed

flurry of litigation. The scope and intensity

of litigation could have been reduced had

the Timmons Heirs gathered and filed with

their claim supporting data and scrutinized

the condition of the home to determine what

damages could fairly be attributed to the

Debtor.

In re Cassell, No. 99-52491, Order Imposing Sanctions

at 6-7 (Bankr. S.D. Ohio Mar. 6, 2000). The court

sanctioned the Heirs by awarding the Debtor attorney

10a

fees and his lost wages for attending hearings and

striking the previously-allowed claim. The Heirs argue

that the court made a clearly erroneous assessment of ‘

the evidence and abused its discretion in imposing

sanctions. The Debtor contends that the decision was

within the bankruptcy court's discretion.

IV. DISCUSSION ;

Federal Rule of Bankruptcy Procedure 9011

The bankruptcy court relied on these provisions of

Bankruptcy Rule 9011:

(b) Representations to the Court. By

presenting to the court (whether by signing,

filing, submitting, or later advocating) .a

petition, pleading, written motion, or other

paper, an . unrepresented party is certifying

that to the best of the person's knowledge,

information, and belief, formed after an

inquiry reasonable under the

circumstances, —

(1) it is not being presented for any

improper purpose, such as to harass

or to cause unnecessary delay or

needless increase in the cost of

litigation; [and]

» &ee

(3) the allegations and other factual

contentions have evidentiary

FED. R. BANKR. P. 9011(b)(1) and (3). Proofs of claim

must meet the standards of this Rule. See Knox v.

‘0 GREE an Sree erences

lla

Sunstar Acceptance Corp. (In re Knox), 237 B.R. 687,

697 (Bankr. N.D. Ill. 1999).

The Sixth Circuit has held that: the test for

imposing Rule 9011 sanctions is whether the

individual's conduct was reasonable under the

circumstances. In applying this test, the bankruptcy

court “is not to use the benefit of hindsight but ‘should

test the signer’s conduct by inquiring what was

reasonable to believe at the time the [claim] . . . was

submitted.”

Mapother & Mapother, P.S. C. v. Cooper (In re Downs),

103 F.3d 472, 481 (6th Cir. 1996) (quoting McGhee v.

Sanilac County, 934 F.2d 89, 93 (6th Cir. 1991)

(internal citation omitted)). Factors to consider in

making this determination include the amount of time

available for investigation, the nature of the

investigation, and whether the claim is based on a

plausible view of the law. Davis v. Crush, 862 F.2d 84,

88 (6th Cir. 1988).

Rule 9011 also imposes a_ continuing

responsibility to review and reevaluate pleadings and

modify them when It is appropriate. Runfola &

Assocs., Inc. v. Spectrum Reporting II, Inc., 88 F.3d 368,

374 (6th Cir. 1996) (“In Herron v. Jupiter Transp. Co.,

858 F.2d 332, 335 (6th Cir. 1988), this court stated

that ‘the reasonable inquiry under Rule 11 is not a

one-time obligation.’ ‘[T]he plaintiff is impressed with a

continuing responsibility to review and reevaluate his

pleadings and where appropriate modify them to

conform to Rule 11.’ Id. at 335-36.”).

The Bankruptcy Court Decision

The bankruptcy court found that the Timmons Heirs

filed their claim without making the reasonable

inquiry required by Rule 9011 and that by doing so

they unnecessarily increased the costs of litigation for

the purpose of obtaining higher payment. The Panel

concludes that this decision was an abuse of

12a

discretion because it is based on a clearly erroneous

assessment of the evidence.

In concluding that the Heirs did not make a

reasonable inquiry, the court found that if they had

investigated they would have been able to explain the

contractual basis for the rent claim. The record ciearly

shows, however, that the Heirs did explain the

contractual basis, which was that they had an oral

contract at $300 a month rent and the Debtor had

stopped paying rent. There was no written

documentation that could have been attached to the

claim because the agreement was oral. The Debtor did

not dispute these positions and they were factually

well-grounded when the claim was filed.

With respect to the $200 claim for clean-up

costs, the court cited the Heirs’ failure to provide

invoices or other documents. The Debtor, however,

acknowledged in his objection that he owed the $200.

No documentation or other proof was needed.

The court also faulted the Heirs for not

documenting their property damage claim when the

claim was filed. The court did not consider, however,

that they could not have attached repair invoices or

receipts to the original claim because they had not yet

begun to repair the property. The court also did not

consider that after the repairs were underway, the

Heirs amended the claim to provide some receipts and

to explain why other items were estimated. They also

acknowledged at that time that certain repair work

was not attributable to the Debtor. The Heirs stated at

the show cause hearing that they did not have

additional invoices or receipts because the repairs

were being done by a person who was living rent-free

on the property in exchange for the repair work. These

uncontested statements explain the reasonable basis

for the Heirs’ factual position and the court did not

find them to lack credibility. Viewing the issue as of

the time that the claim was submitted and amended,

13a

the record clearly shows that the Heirs made a

reasonable inquiry under the circumstances and had

evidentiary support for their position.

The court also held that a reasonable pre-filing

inquiry would have included recognition by the

Timmons Heirs that the house was in poor condition

due to age and structural problems, rather than to the

Debtor's actions. Again, the reasonableness of the

Heirs’ conduct must be examined without the benefit

of hindsight. The parties agreed from the outset that

there were major problems with the house, although

they disagreed as to who was responsible for its

condition. The Heirs contended that the Debtor

caused the problems by failing to maintain the heat

and the Debtor claimed that the problems resulted

when the Heirs failed to make necessary repairs. As

noted above, the Debtor himself admitted from the

outset that he owed some amounts for property

damage and clean-up. And the Heirs did reduce their

damage claim as they began to do the repairs. They

also recognized in the amended filing that they needed

to do some improvements at their own expense. The

facts clearly show that the Heirs did consider what

damages were attributable to the Debtor, and that

they did have a factual basis for their position, even

though the court did not ultimately agree with their

assessment when it concluded that the Debtor was

responsible for only a small part of the damage.

Finally, the bankruptcy court found that two of

the Timmons Heirs did not make a reasonable inquiry

because they did not have independent knowledge

about their claim. These two Heirs correctly point out

that they did not sign or advocate the original claim;

they only signed the amendment. The court did not

consider that, in pursuing the amended claim, these

two Heirs relied on the personal knowledge of the third

claimant (their brother) who was primarily responsible

for the rental relationship with the Debtor. The court

l4a

did not make any findings as to why that reliance was

not reasonable under the circumstances or why it

established sanctionable conduct. -

The Heirs were, no doubt, doggedly persistent

in the belief that their claim should be allowed for a

greater amount than the court ultimately awarded.

The Panel has a definite and firm conviction, however,

that the finding that the Heirs did not make a

reasonable inquiry under the circumstances and did

not have evidentiary support for their position is a

clearly erroneous assessment of the evidence. As a

result, the bankruptcy court abused its discretion in

imposing Rule 9011 sanctions.

V. CONCLUSION

The bankruptcy court’s decision to impose

sanctions under Bankruptcy Rule 9011 is REVERSED.

Having concluded that no basis exists to award

sanctions, the Panel will not address the remaining

issues raised by the Timmons Heirs.

15a

BANKRUPTCY APPELLATE PANEL

OF THE SIXTH CIRCUIT

In re: Timothy Scott Cassell,

Debtor

JOHN C. TIMMONS, ET.AL.,

Appellants

TIMOTHY SCOTT CASSELL,

Appellee

Nem Ne Nr ee Nee Nee eee Nee

Nos. 00-8009 and 00-8010

Filed July 25, 2000

Appeai from the United States Bankruptcy Court

for the Southern District of Ohio, Eastern Division, at

Columbus.

No. 99-52491

Before: MORGENSTERN-CLARREN,

RHODES, and STOSBERG, Bankruptcy Appellate

Panel Judges.

Upon consideration of the petition for rehearing

filed by the appellants, the Panel finds that the

petition is untimely under FEDERAL RULE OF

BANKRUPTCY PROCEDURE 8015 and, additionally,

that when considered on the merits it does not state

good cause. It is, therefore, ORDERED that the

petition for rehearing is DENIED.

ENTERED BY ORDER OF THE PANEL

/S/ _Leonard Green

Leonard Green, Clerk

16a

BANKRUPTCY APPELLATE PANEL

OF THE SIXTH CIRCUIT

Nos. 00-8009/8010

Filed June 19, 2000

Leonard Green, Clerk

In re: Timothy Scott Cassell, Debtor

JOHN C. TIMMONS, et al.,

Appellants

TIMOTHY SCOTT CASSELL,

Appellee

Before: MORGENSTERN-CLARREN, RHODES, and

STOSBERG, Judges of the Bankruptcy Appellate Panel

JUDGMENT

On Appeal from the United States Bankruptcy Court

for the Southern District of Ohio at Columbus

FILED: June 19, 2000

This cause having been submitted upon the

record of lower court proceedings and the briefs of the

parties, it is the judgment of the Bankruptcy Appellate

Panel that the decision of the Bankruptcy Court

disallowing the claim amounts for rent and water

damage is AFFIRMED as set forth in the opinion filed

contemporaneously with this judgment. IT IS

FURTHER ORDERED that the Bankruptcy Court's

denial of the motion for reconsideration is also

AFFIRMED.

FOR THE PANEL

/s/ Leonard Green

Leonard Green, Clerk

17a

“By order of the Bankruptcy Appellate Panel of

the Sixth Circuit, the precedential effect of this decision

is limited to the case and parties pursuant to 6% Cir.

BAP LBR 8010-1(c).”

BANKRUPTCY APPELLATE PANEL

OF THE SIXTH CIRCUIT

In re: Timothy Scott Cassell,

Debtor

JOHN C. TIMMONS, ET.AL.,

Appellants

Vv.

TIMOTHY SCOTT CASSELL,

Appellee

ee ee

Nos. 00-8009 and 00-8010

Appeal from the United States Bankruptcy Court for

the Southern District of Ohio, Eastern Division, at

Columbus.

No. 99-52491

Submitted: May 30, 2000

Decided and Filed: June 19, 2000

Before: MORGENSTERN-CLARREN, RHODES, and

STOSBERG,

Bankruptcy Appellate Panel Judges.

COUNSEL

ON BRIEF: David G. Korn, Columbus, Ohio, for

Appellee. John C. Timmons, Lockbourne, Ohio, Pryor

B. Timmons, Jr., Hilliard, Ohio, Ann T. Root,

Columbus, Ohio, pro Se.

18a

OPINION

PAT E. MORGENSTERN-CLARREN, Bankruptcy

Judge. The Debtor Timothy Cassell lived in a house

rented from John Timmons, Ann Root, and Pryor

Timmons (the “Timmons Heirs”!! until shortly before

he filed his Chapter 13 case. The Timmons Heirs filed

a claim for rent and damage to that property and the

Debtor objected to it. The bankruptcy court entered

an order allowing the claim in part, but disallowing

amounts for rent and water damage. The Timmons

Heirs appeal the disallowance of those amounts. They

also appeal the bankruptcy court’s denial of their

motion for reconsideration. The Panel has

unanimously determined after examining the briefs,

appendix, and record that oral argument is not

needed. FED. R. BANKR. P. 8012. For the reasons

stated below, we AFFIRM.

I. ISSUES ON APPEAL

This appeal raises two issues. The first is

whether the bankruptcy court's findings of fact are

clearly erroneous. The second is whether the

bankruptcy court abused its discretion in denying the

motion for reconsideration.

II. JURISDICTION AND STANDARD OF REVIEW

The Bankruptcy Appellate Panel of the Sixth Circuit

has jurisdiction over this appeal. The United States

District Court for the Southern District of Ohio has

authorized appeals to the BAP of final orders of

bankruptcy courts under 28 U.S.C. § 158(a)(1). The

bankruptcy court's findings of fact are reviewed under

the clearly erroneous standard. Providian Bancorp v.

11 The Timmons Heirs are heirs to the rental property through

their parents’ pending probate estates. —~

19a

Shartz (in re Shartz), 221 B.R. 397 (B.A.P. 6th Cir.

1998). A finding of fact is clearly erroneous “when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite

and firm conviction that a mistake has been

committed.” Anderson v. City of Bessemer City, 470

U.S. 564, 573, 105 S.Ct. 1504, 1511 (1985) (quoting

United States v. United States Gypsum Co., 333 U.S.

364, 395, 68 S. Ct. 525 (1948)).

The denial of a motion to reconsider a claim is

reviewed for an abuse of discretion. Halverson v.

Estate of Earl R. Cameron (In re Mathiason), 16 F.3d

234 (8th Cir. 1994). “A court has abused its discretion

if the reviewing court has a definite and firm

conviction that the trial court committed a clear error

in judgment in the conclusion that it reached based on

all the appropriate factors.” Belfance v. Black River

Petroleum, Inc. (In re Hess), 209 B.R. 79, 80 (B.A.P. 6th

Cir. 1997).

iil. FACTS

The Debtor rented a house from the Timmons

Heirs for several years under an oral lease agreement.

The parties did not have an agreement, oral or written,

that the Debtor would repair or maintain the property.

The Debtor moved out of the house in January 1999

and filed this Chapter 13 case on March 22, 1999.

The Timmons Heirs filed a timely claim in the amount

of $7,750 for rent, property damage (including broken

windows and water damage), and clean up and

disposal of trash. The Debtor objected to the rent

claim, in part on the ground that the property was

uninhabitable during the period for which rent was

sought. He objected to the water damage claim

because this damage resulted from landlord default

and waste of the premises. :

The bankruptcy court held an evidentiary

hearing. At that hearing, the Debtor testified that the

20a

home was a rundown, hundred year old farmhouse,

with a multitude of problems both inside and out. He

testified that falling bricks from the chimney made it

hazardous to be outside. The interior problems

centered on the kitchen and bathroom. The kitchen

water pipes froze annually due to lack of insulation

and insufficient heat. In 1997, water leaked from the

roof into the bathroom, which caused the ceiling to

decay and crumble. Water would then pour through

the ceiling in a rainstorm. While the roof was

eventually repaired, the damage to the ceiling and

bathroom floor was not. The floor later caved in and

the bathtub sank. Once or twice a year, the bathroom

became infested with flying insects. As a result of a

continuing water leak in the bathroom, the Debtor

resorted to staying at motels so that he could shower

before going to work. The Debtor stated that water to

the bathroom eventually had to be shut off to stop the

damage and that the home was not habitable from

June of 1998 forward.

John Smith, a witness called by the Timmons

Heirs, substantiated the unusable condition of the

bathroom. He testified that John Timmons wanted to

hire him to repair the bathroom floor in 1998, but he

refused to take the job because the water damage had

caused such unsanitary conditions. John Timmons

also _ testified, stating that the problems were

attributable for the most part to the Debtor's actions.

At the close of the evidence, the bankruptcy

court rendered an oral opinion. The court allowed the

claim in the total amount of $459 ($259 for window

repairs and $200 for clean up and trash disposal)

based on the Debtor’s acknowledgment at trial that he

was liable for those amounts. The court disallowed

the rent and water damage claims, finding that: (1) the

parties did not have a lease agreement that addressed

rent and repair and maintenance obligations; (2) the

Debtor was not responsible for the water damage

2la

because the poor condition of the property resulted

from its age and landlord neglect; and (3) the Timmons

Heirs failed to prove they were entitled to rent and

damages.

The Timmons Heirs moved to reconsider the

disallowance decision on the ground\ that the

bankruptcy court had misinterpreted the evidence

presented and should consider additional evidence.

The court denied the motion because it concluded

there was no legal or factual basis for reconsideration.

IV. DISCUSSION

The Claim Order

The Timmons Heirs challenge the bankruptcy

court's finding that the home was in an unfit condition

and that the water damage resulted from the age of

the home and landlord neglect. In making these

factual findings, the court credited the Debtor’s

testimony over that offered by the Timmons Heirs.

When considering whether findings of fact should be

set aside, “due regard shall be given to the opportunity

of the bankruptcy court to judge the credibility of the

witnesses.” FED. R. BANKR. P. 8013. Upon review,

the Panel concludes that the factual findings are

amply supported by the record and are not clearly

erroneous.

Ohio landlord and tenant law supports the

bankruptcy court’s conclusion that the Debtor was not

liable for rent or for damage to the property based on

its unfit condition. Under Ohio law, a tenant is not

responsible for repairs unless the repairs are required

as a result of his waste, or by agreement. See

Freedline v. Cielensky, 184 N.E.2d 433 (Ohio Ct. App.

1961). The parties here did not have an agreement

that the Debtor would be responsible for repairs. And,

because the court concluded that the Debtor did not

cause the water damage, he was not otherwise liable

for the repairs.

22a

In contrast, Ohio Revised Code § 5321.04

requires a landlord to maintain plumbing and keep

rental property in a fit and habitable condition:

(A) A landlord who is a party to a rental

agreement shall do all of the following:

(2) Make all repairs and do whatever is

reasonably necessary to put and keep the

premises in a fit and habitable condition;

(4) Maintain in good and safe working order

and condition all electrical, plumbing,

sanitary, heating, ventilating, and air

conditioning fixtures and appliances, and

elevators, supplied or required to be

supplied by him].]

OHIO REV. CODE §~ 5321 .04(A)(2} and (4) (Banks-

Baldwin 2000). These duties apply to both oral and

written lease agreements. OHIO REV. CODE §

5321.01(D) (Banks-Baldwin 2000). A landlord's failure

to comply with these statutory requirements may

reduce the amount of rent that would otherwise be

owed. See Smith v. Wright, 416 N.E.2d 655, 661 (Ohio

Ct. App. 1979). A tenant is entitled to a reasonable

rent abatement based on conditions which render the

premises uninhabitable. Lawrence v. Triangle Capital

Corp., 628 N.E.2d 74 (Ohio Ct. App. i993). The

bankruptcy court, therefore, correctly concluded that

the landlord’s failure to keep this property in a fit and

habitable condition and failure to maintain the

plumbing was a defense to the Debtor's payment of

rent.

The Reconsideration Order

The Timmons Heirs also argue that the

bankruptcy court abused its discretion when it denied

23a

their motion for reconsideration and failed to consider

additional information regarding the rent and water

damage issues. Bankruptcy Code § 502(j) provides in

pertinent part that “[a] claim that has been allowed or

disallowed may be reconsidered for cause. A

reconsidered claim may be allowed or disallowed

according to the equities of the case.” 11 U.S.C. §

502(j). The bankruptcy court's factual determinations

are not clearly erroneous and its legal conclusion that

rent and damages were not owed by the Debtor is

sound based on Ohio law. Under these

circumstances; the court did not abuse its discretion

in denying the motion to reconsider. _

CONCLUSION

The bankruptcy court's disallowance of the

claim amounts for rent and water damage is

AFFIRMED. The bankruptcy court’s denial of the

motion for reconsideration is also AFFIRMED.

24a

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

In re: Chapter 13

Case No. 99-52491

TIMOTHY SCOTT CASSELL SSN: 585-94-7987

Debtor Judge Caldwell

This matter came on for consideration by the

Court upon the Debtor’s Request for the Imposition of

Monetary Sanctions and Directives of a Nonmonetary

Nature, filed March 23, 2000, (hereinafter “the

Sanctions Request”), together with Debtor's

Memorandum in Support, and the Affidavit and time

record of Debtor's case attorney. The Sanctions

Request asks that this Court award monetary

sanctions and impose directives of a nonmonetary

nature in favor of Debtor and against interested

parties John Caldwell Timmons, Ann Root, and Pryor

B. Timmons, Jr., jointly and severally, and also

against these persons in their organizational capacity,

as the Timmons Heirs (hereinafter collectively “the

Respondents”). The Court having reviewed the same,

and being filly advised in the premises hereof, hereby

makes the following findings and conclusions:

The Court hereby finds that the Sanctions

eee

25a

Request was served and filed pursuant to Rule 901 lof

the Federal Rules of Bankruptcy Procedure and Local

Bankruptcy Rule 9011-3, and that none of the

Respondents have filed memoranda opposing the relief

sought by Debtor, nor have they requested a hearing.

The Court finds that prior to Debtor’s filing the

Sanctions Request, the Court made a-certain Order

Imposing Sanctions Pursuant to FRBP 9011(c)(1)(B),

which was entered on March 6, 2000, and which set

forth that the Court had . . . “determined that the

imposition of sanctions is appropriate pursuant to

Federal Rules of Bankruptcy Procedure 9011... .“,

and that “. . . the Timmons Heirs should be

sanctioned, jointly and severally. . . .” In so doing, the

Court recognizes that FRBP 9011 (c)(2) provides for

imposition of both monetary and nonmonetary

sanctions, and that without limiting the Court in

determination of the nature and extent of the

sanctions appropriate for any given situation, LBR

9011-3 enumerates specific sanctions that may be

applied. The Sanctions Request asks that the Court

sanction the Respondents by striking and totally

disallowing that portion of the Timmons Heirs proof of

claim that was previously allowed in the amount of

$459. 00, and also by adjudging them jointly and

severally liable for damages to Debtor in the amount of

$478.23, and to Debtor's case attorney in the amount

of $4,097.25.

For good cause shown the Court hereby Orders

that the Sanctions Request shall be and hereby is

granted. It is hereby Ordered that the Timmons Heirs

Proof of Claim, previously allowed in the amount of

$459.00 and disallowed for all amounts in excess of

$459.00, shall be totally disallowed, and that the

Chapter 13 Trustee shall administer said claim in

accordance with this Order. It is further Ordered that

John Caldwell Timmons, Ann Root, and Pryor B.

Timmons, Jr., jointly and severally, both individually

and also collectively in their capacity as the Timmons

26a

Heirs, shall pay the sum of $478.23 to Debtor Timothy

Scott Cassell, and shall pay the sum of $4,097.25 to

Debtor’s case attorney, David G. Korn, and that

judgment for such amounts is hereby Ordered. These

money judgments are based upon the Debtor’s and

Debtor’s case attorney's representations regarding

costs and expenditures for the period of July 26, 1999

through March 22; 2000, and Debtor and his counsel

may file further requests for imposition of monetary

sanctions as other and further costs and expenditures

are incurred. It is further Ordered that the monetary

sanctions shall be paid forthwith, or as Debtor and

Debtors case attorney may agree with the

Respondents. In the event of Respondent’s failure to

comply with the terms of this Order, Debtor and/or

Debtor’s case attorney may move for other and further

relief for contempt of this Court Order.

IT IS SO ORDERED.

Date: Charles M. Caldwell

(Entered 5/30/00) U.S. BANKRUPTCY JUDGE

Copies to:

David G. Korn, Esq. Frank M Pees, Trustee

208 East State Street 130 E. Wilson Bridge Rd.

Columbus, OH 43215 Suite 200

Worthington, Ohio 43215

Timothy Scott Cassell John Caldwell Timmons

11143 Route23 10375 Route 23

Lockbourne, OH 43137 Lockborne, Ohio 43137

Ann Root Pryor B. Timmons, Jr.

4200 Lyon Drive 4610 Carrington Way

Columbus, OH 43220 Hilliard, Ohio 43026

U.S. Trustee

170 North High Street, Suite 200

Columbus, OH 43215

27a -

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

In re Case No. 99-52491

Timothy Scott Cassell, SSN: 585-94-7987

Debtor Chapter 13

(Judge Caldwell)

ORDER IMPOSING SANCTIONS

PURSUANT TO FRBP 9011(c)(1)(B)

FILED, Clerk, March 3, 2000 @ 8:00 AM

Entered 3/6/00

On January 6, 2000, the Court conducted a

hearing on its December 1, 1999, Order to Show

Cause for Imposition of Sanctions Pursuant to FRBP

9011(c)(1)(B) and the November 17, 1999, Debtor's

Motion to Strike and Motion for Sanctions Against

Party in Interest for Failure to Provide Discovery

(“Sanctions Motion”). Based upon the statements of

the parties and counsel at that hearing, and based

upon a review of the record in this case, the Court has

determined that the imposition of sanctions is

appropriate pursuant to Federal Rule of Bankruptcy

Procedure 9011.!2 A brief summary of the history of

this case will illustrate the bases for this Court's

decision.

For a number of years the Debtor, Timothy

Scott Cassell (“Debtor”), pursuant to an oral

The Court has based its ruling solely on the Order to Show

Cause and FRBP 9011 because they directly relate to the proof of

claim that served as the catalyst for all the subsequent litigation.

For this reason and the fact that a decision has been

rendered on the merits of the claims dispute, the Debtor’s

November 17, 1999, Sanctions Motion and the related Claimants’

November 10, 1999, Motion for Reconsideration are rendered

moot.

28a

agreement, rented a home owned by the Timmons

Heirs, consisting of three siblings, John Caldwell

Timmons (“Mr. John Timmons”), Ann Timmons Root

(“Mrs. Root”), and Pryor B. Timmons, Jr. (“Mr. Pryor

Timmons”). -On March 22, 1999, the Debtor

commenced his second chapter 13 bankruptcy, and

scheduled a contingent, unliquidated and disputed

debt for unpaid rent on the home in the amount of

$1,995.00. On May 13, 1999, Mr. John Timmons filed

a pleading captioned as “Creditor’s Objection to

Debtor’s Plan of Reorganization and Motion for Relief

from Automatic Stay,” and asserted the Debtor could

afford to pay all his debts and sought recovery for rent

and other damages, “as yet undetermined.” On May

17, 1999, Debtor's Motion to\ Strike Creditor’s

Objection and Motion for Relief From Stay and

Debtor’s Motion for Sanctions was filed. This Motion

was based upon the fact the Objection was untimely,

and it included a request for modification of the stay

that must be sought by separate motion, pursuant to

local rules. At the May 17, 1999, confirmation

hearing, the Court struck the Objection and confirmed

the Debtor’s plan that provides for a fifty percent (50%)

dividend to unsecured creditors. No sanctions,

however, were awarded at that time.

Subsequently, on July 20, 1999, Mr. John

Timmons filed a proof of claim on behalf of the

Timmons Heirs. In this claim, the sum of $7,750.00

was sought as follows:

Rental: 1/2 of June 1998-May 1999 = 11.5

months @ $300.00/month = $3450

Damages: Broken windows, Frozen pipes,

Bathroom floor = $357.)

Loss of rental income ior r repairs: 2 months *

$300.00/month = $ 600

Clean up and disposal of trash, old

refrigerators, and stoves = $ 200

29a

The proof of claim was not supported by any contracts,

receipts and/or invoices.!3 On July 30, 1999, Debtor’s

Objection to Claim of Timmons Heirs was filed. In this

Objection, the Debtor recommended the claim be

allowed only in the amount of $896.00 based upon

broken windows, clean up costs and two months rent

the Debtor conceded was owed. The Debtor asserted

that all other charges emanated from the poor

condition of the home due to the Timmons Heirs’

failure to make needed improvements.

What followed was a highly unusual number of

pleadings and orders for a claims dispute in a

consumer chapter 13 proceeding. They all became

part of the record in order to simply reach some

judicial resolution on the dispute between the parties.

For ease of reference a summary of a portion of the

pleadings and orders follows:

Filing/Entry Date Pleading/Order Relief Requested Disposition

August 7, 1999. Statement of Opposition and Request for

Hearing. Mr. John T!.amons on behalf of himself and the

Timmons Heirs opposes proposed treatment offered by the

Debtor and requests a hearing. Hearing commenced on

October 5, 1999, and continued to November 2, 1999, for a

status conference and concluded on the merits on November

23, 1999.

October 8, 1999. Order Disqualifying John Caldwell

Timmons from representing parties. Based upon the oral

motion of Debtor’s Counsel at the October 5, 1999, hearing.

The order precluded Mr. John Timmons, as a non-lawyer,

from representing the interests of Mrs. Root and Mr. Pryor

Timmons.

October 8, 1999. Order Requiring Filing of Discovery

Motions. During the October 5, 1999, hearing it became

clear that the Debtor would require discovery to ascertain

the basjejs for the claim. The order required the Debtor to

18 It should be noted that Official Form 10 (Proof of Claim)

prescribed by the Judicial Conference of the United States

contemplates, through its structure and instructions, the

attachment of supporting documents.

30a

file appropriate discovery motions by October 12, 1999. The

Order further provided that upon completion of discovery a

hearing on the claims dispute would be set.

October 12, 1999. Debtor's Motion to Compel. The

Motion asserts that informal attempts to obtain discovery

from July - September, 1999, failed, and seeks entry of an

order requiring answers to interrogatories and production of

documents relevant to the claims dispute. Order granting

Debtor’s Motion to Compel Discovery entered on November

5, 1999.

November 2, 1999. Claimant's Abbreviated Response to

Debtor’s Demand for Discovery. Only a portion of the

information sought was provided.

November 5, 1999. Order granting Debtor's Motion to

Compel Discovery. The Order was entered that required

responses to the interrogatories and the provision of

requested documents.

November 5, 1999. Order Establishing Hearing

Procedures.

Order scheduling a hearing on the Merits.

November 10, 1999. Claimants’ Motion for

Reconsideration. The Claimants request reconsideration of

the November 5, 1999, Order regarding discovery on the

basis that too much discovery is being sought. Ruling

deferred to reach merits of claim.

November 17, 1999. Debtor’s Sanctions Motion. The

Debtor requested that all pleadings filed by the Claimants be

stricken and sanctions imposed for failure to provide

ordered discovery. Ruling deferred to reach merits of

claim.

November 17, 1999. Claimant’s Receipts for Repairs.

Claimants finally provide a list of relevant repairs and some

receipts.

At this juncture, it became apparent, given the

high level of conflict, that further litigation over

discovery would only serve to increase costs and delay

for all parties. For this reason, the Court deferred

ruling on the November 10, 1999, Claimants’ Motion

for Reconsideration and the November 17, 1999,

Sanctions Motion. Subsequently, on November 23,

1999, the Court conducted a hearing on the merits of

3la

the claim, and concluded that it should only be

allowed in the amount of $459.00 as detailed in the

subsequent Order on Debtor’s Objection to Claim of

Timmons Heirs entered on December 1, 1999.

The Court's decision was based upon three

factors. First, the claim itself was not supported by

any documentation (contracts, receipts and/or

invoices), and the testimony and other evidence

received on November 23, 1999, failed to shed any

further light on the nature of the contractual

relationship between the parties and the bases for

claimed damages. Second, two of the Timmons Heirs,

Mrs. Root and Mr. Pryor Timmons, had very limited

knowledge of the relevant facts and damages asserted

in the claim, and solely relied on their brother, Mr.

John Timmons. Third, the Court found that, given

evidence of the long-standing abysmal, uninhabitable

condition of the home, and its age, that all other

charges for the claimed repairs were derived from the

neglect of the Timmons Heirs as the Debtor's

landlords.

After finally reaching a decision on the merits,

the Court concluded that it was appropriate to issue

the subject Order to Show Cause and to

simultaneously set for hearing the Debtor’s Sanctions

Motion. This step was taken based upon a review of

the woefully deficient proof of claim, the failure to cure

the deficiencies at the hearing on the merits, the

apparent lack of any due diligence and/or personal

knowledge on behalf of Mrs. Root and Mr. Pryor

Timmons, and in view of the level of litigation required

to adjudicate a common claims dispute in a routine

chapter 13 proceeding.

Federal Rule of Bankruptcy Procedure 901 1(b)

provides in relevant part as follows:

By presenting to the court .. . a petition, pleading,

written motion, or other paper, an attorney or

32a

unrepresented party is certifying that to the

best of the — s sagen information.

have evidentiary support o or, if apecitica so

identified, are likely to have evidentiary

support after a reasonable opportunity for

further investigation or discovery; er

(emphasis supplied).

The purpose of the sanction provision is to deter

litigation abuse and unnecessary filings, and to

compensate parties that have been harmed. In re

Addon Corp., 231 B.R. 385 (Bankr. N.D. Ga. 1999). In

' deciding to impose sanctions, courts must employ an

objective standard and examine the reasonableness of

the conduct under the circumstances, and the

purpose of the filing of pleadings may be inferred from

their consequences. In re Start The Engines. Inc., 219

B.R. 264, 270 (Bankr. C.D. Ca. 1998).

Courts have imposed upon creditors the

obligation to make sure that there is some correct,

factual basis for claims that are filed, like all other

pleadings, and to make reasonable pre-filing inquiry

as to their basis. In re McAllister, 123 B.R. 393, 395-

97 (Bankr. D. Oregon 1991 )(Oregon Department of

Revenue sanctioned for filing precautionary claims for

years debtor did not reside in state); In re Hamilton,

104 B.R. 525, 526-527 (Bankr. M.D. Ga. 1 989)(IRS

sanctioned for filing a claim on taxes for years that

they were not owed).

At the January 6, 2000, hearing the Court heard

the staternents of Debtors Counsel, Mr. John

33a

Timmons and Mrs. Root. Mr. Pryor Timmons did not

attend the hearing. The Court finds based upon these

statements that a reasonable inquiry was not made

prior to the filing of the claim, and that indeed Mrs.

Root and Mr. Pryor Timmons did not have any

independent knowledge of the contents of their own

claim. A reasonable inquiry would have dictated some

explanation for the contractual basis for the claimed

rental arrearage and the provision of invoices and/or

receipts to evidence claimed damages and cleaning

expenses. Finally, a reasonable inquiry on the part of

the Timmons Heirs should have included some

knowledge and recognition of the extremely poor

condition of the home due to its age and significant

structural problems. The Timmons Heirs simply filed

a claim, and what ensued was the previously detailed

flurry of litigation. The scope and intensity of litigation

could have been reduced had the Timmons Heirs

gathered and filed with their claim supporting data

and scrutinized the condition of the home to determine

what damages could fairly be attributed to the Debtor.

For these reasons, the Court concludes that the

Timmons Heirs, after failing to prevent confirmation of

the plan, acted, through the filing of the proof of claim,

to unnecessarily increase the costs of litigation in the

hope to extract higher payment. For this reason, the

Court has concluded the Timmons Heirs should be

sanctioned, jointly and severally. Accordingly, within

twenty days from entry of this Order, the Debtor shall

file and serve a pleading that details the sanctions

requested pursuant to FRBP 9011. Upon review, a

separate order awarding sanctions will be entered.

IT IS SO ORDERED.

Date: MAR_2, 2000 /S/ Charles M. Caldwell

Charles M. Caldwell

United States Bankruptcy Judge

34a

Copies to:

David G. Korn, Esq. - Frank M Pees, Trustee

208 East State Street 130 E. Wilson Bridge Rd.

Columbus, OH 43215 Suite 200

: Worthington, Ohio 43215

Timothy Scott Cassell John Caldwell Timmons

11143 Route23 10375 Route 23

Lockbourne, OH 43137 Lockborne, Ohio 43137

Ann Root Pryor B. Timmons, Jr.

4200 Lyon Drive 4610 Carrington Way

Columbus, OH 43220 Hilliard, Ohio 43026

U.S. Trustee

170 North High Street, Suite 200

Columbus, OH 43215

35a

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

In re: Chapter 13

‘ Case No. 99-52491

TIMOTHY SCOTT CASSELL SSN: 585-94-7987

ORDER ON DEBTOR'S OBJECTIGN TO CLAIM

OF TIMMONS HEIRS

FILED, Clerk, November 30, 1999,.2:14 P.M.

Entered 12/1/99

This matter came on for hearing before the

Court on November 23, 1999 upon the Proof of Claim

of the Timmons Heirs in the amount of $7,750.00,

Debtor’s Objection to the Timmons Heirs Proof of

Claim and the Timmons Heirs’ request for hearing.

The Court having received evidence and being fully

advised in the premises, for good cause shown the

Court hereby makes the following findings of fact and

conclusions of law:

Debtor’s Chapter 13 case was filed March 22,

1999, and the Timmons Heirs Proof of Claim was filed

July 20, 1999. The said Proof of Claim contained no

attachments in support of any of the elements of the

debts claimed in the Proof of Claim. The elements so

claimed are: $3,450.00 in rent arrearage; $3,500.00 in

physical damages to the premises; $600.00 in lost

rents; and $200.00 in costs of cleaning the premises.

Debtor acknowledged, and the Court finds, that

$259.00 for window repairs and $200.00 for clean-up

are charges properly chargeable to Debtor. The Court

further finds that two (2) of the Timmons Heirs, having

testified regarding the Proof of Claim, have very limited

knowledge regarding the debts set forth in therein.

Further, the Proof of Claim is unsupported by a

written lease or rental agreement setting forth the

rents payable by the tenant or the tenant’s and

36a

landlord’s respective responsibility for repairs and

maintenance of the premises. The Court further finds

that the receipts submitted by the claimant in support

of the Proof of Claim do not substantiate the amount

claimed, and that the testimony of witnesses is

insufficient to establish liability of Debtor for the debts

claimed. Further, the evidence, including photographs

of the premises at issue establish that the condition of

the premises is the result of the age of the premises

and the neglect of its owner, for which Debtor is not

chargeable.

On the basis of the Courts findings it is

hereby Ordered that the Proof of Claim is allowed in

the amount of $459.00, and that it is disallowed for

all amounts in excess of $459.00, and that the

Chapter 13 Trustee shall make payment upon said

claim in accordance with this Order.

IT IS SO ORDERED. :

Date: November 30,1999 /s/ Charles M. Caldwell

(Entered 12/1/99) U.S. BANKRUPTCY JUDGE

Copies to:

David G. Korn, Esq. Frank M Pees, Trustee

208 East State Street 130 E. Wilson Bridge Rd.

Columbus, OH 43215 Suite 200

Worthington, Ohio 43215

Timothy Scott Cassell John Caldwell Timmons

11143 Route23 10375 Route 23

Lockbourne, OH 43137 Lockborne, Ohio 43137

Ann Root Pryor B. Timmons, Jr.

4200 Lyon Drive 4610 Carrington Way

Columbus, OH 43220 Hilliard, Ohio 43026

U.S. Trustee

170 North High Street, Suite 200

Columbus, OH 43215

Ohio R.C. § 5301.11 Effect of destruction of building

upon lessee.

The lessee of a building which, without fault or

neglect on his part, is destroyed or so injured as to be

unfit for occupancy, is not liable to pay rent to the

lessor or owner thereof, after such destruction or

injury, unless otherwise expressly provided by written

agreement or covenant. The lessee thereupon must

surrender possession of such premises.

Qhio R.C. Title 53, Chapter 5321, Landlord-Tenant

§ 5321.02 Retaliation of landlord prohibited

(A) Subject to section 5821.03 of the Revised

Code. A landlord may not retaliate against a

tenant by increasing a tenant's rent,

decreasing services that are due to the

tenant, or bringing or threatening to bring

an action for possession of the tenant's

premises because:

(1) The tenant has complained to an

appropriate governmental agency of a

violation of a building, housing, health, or

safety code that is applicable to the

premises, and the violation materially

affects health and safety.

(2} The tenant has complained to the landlord

of any violation of section 5321.04 of the

Revised Code;

(3) The tenant joined with other tenants for the

purpose of negotiating or dealing collectively

with the landlord on any of the terms and

conditions of a rental agreement.

(B) If a landlord acts in violation of division (A)

of this section the tenant may:

38a

(1) Use the retaliatory action of the landlord as

a defense to an action by the landlord to

reciver possession of the premises;

(2) Recover possession of the premises; or

(3) Terminate the rental agreement.

In addition, the tenant may recover from the

landlord any actual damagestogether with

reasonable attorneys’ fees.

prohibit a landlord from increasing the rent to

reflect thee cost of improvements installed by

the landlordin or about the premises or to

reflect an increase in other costs of operation of

the premises.

§ 5321.03 Actions by landlord authorized.

(A) Notwithstanding section 5321.02 of the Revised

Code, a landlord may bring an action under Chapter

1923. Of the Revised Code for possession of the

premises if:

(1) The tenant is in default in the payment of rent;

(2) The violation of the applicable building, housing,

health, or safety code that the tenant complained of

was -primarily caused by any act or lack of

reasonable care by the tenant, or by any other

person in the tenant’s household, or by anyone on

the premises with the consent of the tenant;

§ 5321.04 Obligations of landlord.

(A) A landlord who is a party to a rental agreement

shail do all of the following:

(1) Comply with the requirements of all applicable

building, housing, health, and safety codes that

materially affect health and safety;

39a

(2) Make all repairs and do whatever is reasonably

necessary to put and keep the premises in a fit and

habitable condition;

(3) Keep all common areas of the premises in a safe

and sanitary condition.

(4) Maintain in good and safe working order and

condition all electrical, plumbing, sanitary, heating,

ventilating, and air conditioning fixtures and

appliances, and elevators, supplied or required to

be supplied by him;

§ 5321.05 Obligations of tenant.

(A) A tenant who is a party to a rental agreement shall

do all of the following:

(1) Keep that part of the premises that he occupies

and uses safe and sanitary

(2) Dispose of all rubbish, garbagr, and other waste in

a clean, safe, and sanitary manner

(3) Keep all plumbing

(4) Use and operate all electrical and plumbing

fixtures properly.

(5) Comply with the requirements imposed on tenants

by all applicable state and local housing, health,

and safety codes.

(6) Personally refrain and forbid any other person who

is on the premises with his permission from

intentionally or negligently destroying, defacing,

» OF removing any fixture, appliance, or

other part of the premises.

other than the obligation specified in division (A)(9)

of that section, or any obligation imposed upon him

40a

by the rental agreement, if the conditions of the

residential premises are such that the tenant

reasonably believes that a landlord has failed to

fulfill any such obligations, or if a governmental

agencyhas found that the premises are not in

compliance with building, housing, health, or

safety codes that apply to any condition of the

premises that could materially affect the health

and safety of an -occupant, the tenant may give

notice in writing to the landlord, specifying the

acts, omissions, or code violations that constitute

noncompliance. The notice shall be sent to the

person or place where rent is normally paid.

(B) If a landlord receives the notice described in

division (A) of this section and after receipt of the

notice fails to remedy the condition within a

reasonable time considering the severity of the

condition and the time necessary to remedy it, or

within 30 days, whichever is sooner, and if the

tenant is current in rent payments due under the

rental agreement, the tenant may do one of the

following:

(1) Deposit all rent that is due and thereafter becomes

due the landlord with the clerk of the municipal or

county court having jurisdiction in the territory in

which the residential premises are located;

(2) Apply to the court for an order directing the

landlord to remedy the condition. As part of the

application, the tenant may deposit rent pursuant

to (B)(1) of this section, may apply for an order

reducing the periodic rent due the landlord until

the landlord remedies the condition, and may apply

for an order to use the rent deposited to remedy the

condition. In any order issued pursuant to this

division, the court may require the tenant to

deposit rent with the clerk of court as provided in

division (B)(1) of this section.

4la

(3) Terminate the rental agreement.

§5321.12 Recover damages.

In any action under chapter 5321 of the Revised

Code, any party may recover damages for the breach of

contract or the breach of any duty that is imposed by

law.

United States Code Title 11

USC Title 11 § 362. Automatic stay

(a) Except as provided in subsection (b) of this

section, a petition filed under section 301, 302, or 303

of this title, or an application filed under section 5(a)(3)

of the Securities Investor Protection Act of 1970,

operates as a stay, applicable to all entities, of---

(1) 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 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 under this title:

(2) the enforcement ----- . NA

(3) any act to obtain possession of property of the

estate or of property from the estate or to

exercise control over the property of the estate.

(4) - (8) NA

(b) - (g) NA

(h) Ana individual injured by any wilful violation of a

stay provided by this section shall recover actual

damages, including costs and attorney’s fees, and,

in appropriate circumstances, may recover

punitive damages.

42a

USC 11 § 523. Exceptions to discharge

(a) A discharge under section 727, 1141, 1228(a),

1228(b), Or 1328(b) of this title does not discharge

an individual debtor from any debt -

(2) for money, property, services, or an extension,

renewal, or refinancing of credit, to the extent

obtained by —

(A) false pretenses, a false representation, or

actual fraud, other than a_ statement

respecting the debtor's or an insider's

financial condition;

(6) for wilful and malicious injury by the debtor to

another entity or to the property of another entity; fe

Restatement, 2d, Property, Landlord and Tenant

§ 21.1 In the event of bankruptcy of the lessee and if

the tenant or his trustee rejects the lease, then the

landlord may: (1) Retake possession of the leased

property. (2) recover rent to the date of the filing of

the petition in bankruptcy; (3) recover compensation

for the use and occupancy of the leased property by

the tenant or his trustee following the tenant's filing of

the petition in bankruptcy; and (4) recover damages to

the extent allowed by the bankruptcy act.

Q. “When you did fill up the tank, let's say, did that

then run for one week, two weeks, a month?

A. One hundred and fifty gallons would last for about

a month.

Q. About a month?

A. Yes.

ii a

43a

Q. How often did you fill that tank the last four or five

years? Did you mainly use -- what form of heat in the

house?

A. Wood stove and kerosene heaters.

Q. So you didn't use the furnace in the basement at

all?”

A. Yes, we did, but you asked me what we mainly

used.

Q. Mainly used upstairs?

A. Yes.” (Transcript pg. 74-75)

Cassell or, direct by his attorney David Korn, Esa.

Q. As a result of the plumbing setup and heating

setup, was there any problem with usage of the water

in the winter?

A. Yes. There was a problem with the kitchen

plumbing, it would freeze just about every year. There

was one pipe that ran up the northwest wall of the

house, it wasn't insulated, the wall, that is, nor the

pipe, and it was an almost annual rite that that would

freeze, and I would have to go down and thaw it out

and replace that myself or wait until summertime.

Q. Didn't your landlord come over and fix his frozen

pipes?

A. Occasionally. I think maybe once or twice in the

first couple of years, then it just got to where it was

easier and would take much less time for me to do it

myself than to have John over there.

Q. What procedure did you follow in order to fix the

frozen pipe problem?

A. As far as when John would repair it?

Q. No, you.

A. I would get a hacksaw and cut the broken section

of the pipe down in the cellar and go up into the

44a

kitchen and underneath the kitchen sink, [ would

hacksaw the top end of the pipe and I would pull it

either down or up, depending on the length and the

qualities of the repair, and I would get some glue and

buy a new piece of pipe and stick it on there.

You did this at your own expense?

Yes.

You have just described pipe replacement?

Yes. 3

So I assume when the pipe froze, it also burst?

Yes.

So it would leak if you didn't do the replacement

Yes, if it would thaw, it would leak, yes.

rOorororo

Q. Pi ig ig li

claimed by the Timmons' Heirs for a toilet, $83.55,

purchased at Lowe's?

A. I think that seems a little high for a toilet, you can

get them for $40.

Did you break the toilet?

No.

Did you do anything to cause damage to the toilet?

Not to my knowledge.

To your knowledge, is the toilet broken?

Yes, the toilet is broken.

Really. When did it break?

It was broken sometime in January.

January of 1999?

ororororo

45a

A. Yes.

Q. And do you know what caused the toilet to break?

A. It appeared there had been water in the tank and it

had frozen, and expanded and broken the tank.

Q. So when you testified earlier that the water had to

be shut off in January of 1999, the water was still

shut off because of that sunken bathtub?

JOHN TIMMONS: His contention is that he had to go

to a hotel to clean up after the damage had been done.

My contention is that he didn't have to go to a hotel

but he went out, partied and then got a room to stay

the night so he wouldn't be picked up for drunk

driving the next day. A lot of times, he would come

back Sunday morning after being out all night ---

THE COURT: Mr. Timmons, I am not going to allow

that questioning. Let's stay focused on the claim in

the objection, please.

JOHN TIMMONS: Well, part of the reasoning is that

he didn't have the money to pay his rent because he

was having to go to the hotels. (Transcript pg. 69)

Q. Mr. Cassell, you say you stayed in a motel because

you didn't have water in the bathroom; is that

right?

A. Yes.

Q. When was that, when did you first start staying in

that motel?

A. The winter of 1997.

Q. Winter of '97?

A. Yes.

46a

Q. What motel was that?

A. That was a different motel, different motels,

sometimes it was the Ramada Inn in Grove City,

sometimes it was the Shady Manor Motel on High

Street.

Q. In 1997, you had water in your bathroom?

A. Sometimes.

Q. Did you have problems with the plumbing before, I

mean, 1997?

A. Yes.

Q. I mean, in 1997, you started staying in motels

because you didn't have any water?

A. Late '97, early '98, yes.

Q. You are saying then that the water stopped

working in 1998, though, I think your testimony was?

A. The water stopped working a number of times over

the years.

Q. Did you pay the motel bill?

A. Yes.

Q. You don't have the receipts here?

A. No.

Q. How much did the motel cost usually?

A. As I testified earlier, somewhere between $25 and

$50 per night.

Q. And you had to have a motel because you didn't

have any way to take a shower or clean up for work; is

that it?

A. Yes. (Transcript at pgs 77-78).

THE COURT: What bearing does it have, the question

you asked? |

47a

JOHN TIMMONS: The bearing is that Mr. Cassell is

trying to make a case he had to rent the motel for

hygienic purposes. My case is that there may have

been some other reason.

THE COURT: Why don't you ask him that? If you

wish to ask him that directly.

BY JOHN TIMMONS:

Q. Did you, Mr. Cassell -- what would happen if you --

would you ever lose your license, what would happen

to your job?

A. I would lose my job.

Q. So your license, your job depends upon having a

license to drive a car? |

A. Yes.

~Q. When you drive, do you drive all the time or do you

sometimes have your friends drive?

MR. KORN: Objection. I still don't see that this

question, or any conceivable answer to that question,

would have any bearing whatsoever on the matter at

issue.

THE COURT; What are you trying to get at, Mr.

Timmons?

JOHN TIMMONS: If I do, I can say this in my own

testimony, but what I am saying is that Mr. Cassell

has had some problems, | believe, and to keep from

being picked up, he has had to rent the motels.

ZeAW FPN

te eh a4 thot

THE WITNESS: Yes, I mowed the lawn.

BY JOHN TIMMONS:

Q. Did you mow it every week, every two weeks, every

four weeks?

48a

A. I mowed it when it needed it.

Q. Did you do that up to the time you left the house?

A. Yes. Coe pg 71)

Q. It must have been sis in some other time. Did --

you state, though, in 1997, you stayed in this motel,

but in 1998, you were having problems with the water

supply and it was cut off; is that right?

A. Yes.

Q. Well, there's one other thing. On the condition,

the grounds around the house, did you ever clean up

the yard, the trash, did you bring a dumpster in?

A. Yes.

Q. Did you pick everything up and throw it into the

-dumpster?

A. Yes. I will admit, the house on the grounds were

not left in pristine condition by any means. I realize

they were left dirty and some trash and stuff, and I

have no problem with paying the $200 you claimed in

your claim for that cleanup. (Transcript at 83 - 84)

Q. What condition would you say, would you describe

the yard?

A. Actually, it was never really taken care of. The

grass was never mowed, weeds growing all over the

place. There was some kind of vines or something,

could have been poison ivy vines growing up through

the shingles of the house. A lot of weeds, in bad

shape.

Q. Did you ever see any trash in the yard?

A. Yes.

Q. Did you see trash in bags and tires?

49a

A. Yes, it was quite a bit of trash lying around.

w- Did it appear like the yard had ever been mowed?

A. Not really.

Q. All right. He has been there for eight years, the

possibility was it was mowed, but you didn't see it?

A. Yes, I would say it could be a possibility.

Q. Did you see plastic on the windows?

A. Yes, there was plastic on the wiadows.

Q. And those windows were covered usually in the

countryside, sometimes people cover windows with

plastic; is that correct?

A. Yes.

Q. Why is that?

A. Because they don't have no windows in there.

Q. There were no windows -- did you go around and

look in the house to see what windows were broken?

A. No.

Q. You did not?

A.- No. I did not actually physically go in and look

around and walk around and look at the windows.

Q. But you did see from outside, there were broken

windows?

A. Yes, you could see several windows out there in the

front when pulling up into the driveway, probably six

or eight windows in front of the house, and I would

say, a good portion of those was gone.

Q. Would you say that is normal?

A. No.

-Q. Would you say the house would be drafty?

A. Extremely drafty out there in the country, yes.

50a

Q. How long do you think those windows have been

broken?

A. I really don't know. You got a lot of water that is

damage on the window seals, on the windows, so I

imagine some of those windows have probably been

broken for a few years. eee at pgs 94-96)

JOHN TIMMONS: Your Honor, I believe it would be

relevant from the standpoint, if the yard suppose --

supposedly, Mr. Cassell vacated the premises in

January.

THE COURT: I am going to allow the question.

BY JOHN TIMMONS:

Q. Could you testify according to the condition of the

yard?

A. Very poor, very bad shape, probably six or seven

feet high.

Q. Grass and weeds were six and seven feet tall?

A. Yes. i

Q. Did you see trash any place?

A. Yes, there was trash in the house, trash out in the

yard.

Q. Did you -- Mr. Cassell evidently had several things

in the yard, and when you were trying to clean up the

yard, did you break the mower? |

A. Yes, I broke something like that.

Q. You had to take the bush hog?

A. Yes.

Q. A big tractor, and clean up the yard?

A. Right.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.