By: dmc-admin//September 16, 2002//
By: dmc-admin//September 16, 2002//
“HD filed a proof of claim in SNA’s bankruptcy case on Sept. 13, 1996, and two weeks later, HD filed a jury demand in the second adversary action. Subsequently, on Dec. 4, 1996, the bankruptcy court disallowed HD’s proof of claim with prejudice when it approved a settlement in the first adversary proceeding. We conclude that HD’s actions were sufficient to consent to the equitable jurisdiction of the bankruptcy court because HD triggered the process of allowance and disallowance of claims when it filed its proof of claim on Sept. 13.
“HD makes several arguments on appeal contending that under the present circumstances it retained its right to a trial by jury. We, however, find none of these arguments persuasive. For example, HD cites to several cases where creditors properly withdrew their proof of claim filings, pursuant to Bankruptcy Rule 3006, and thus retained their right to request a jury. See, e.g., Smith v. Dowden, 47 F.3d 940, 943 (8th Cir. 1995); In re 20/20 Sport, Inc., 200 B.R. 972, 979-80 (Bankr. S.D.N.Y. 1996). These cases, however, are unlike the present appeal because in Dowden and 20/20 Sport the creditors properly withdrew their proof of claim filings pursuant to Rule 3006, whereas here HD never withdrew its proof of claim filing. Rather, the court specifically ordered as part of the parties’ settlement agreement in the first adversary proceeding that HD’s proof of claim be disallowed with prejudice and therefore, cases such as Dowden are easily distinguishable from the case at bar.”
Affirmed as modified.
Appeals from the United States District Court for the Northern District of Illinois, Leinenweber, J., Kanne, J.