Daniel J. Nickel, P.C. represented a small business client recently in a federal case, here in Chicago, concerning trademark infringement. The firm’s client, and plaintiff in the case, was a medical provider in the Chicago area and sued to stop a competitor from infringing its trademark, Redefining Rehabilitation. Filed last June, the complaint asked for injunctive relief and damages. Shortly after the suit was filed, and in a triumph for Mr. Nickel’s client, the competing business agreed to end its use of the mark and paid funds to settle, which covered the plaintiff’s attorneys’ fees and additional damages (settlement terms were not confidential).

Long before filing suit, the plaintiff had applied to register its trademark with the United States Patent and Trademark Office. The mark had not received final registration approval. Nevertheless, in some instances federal law protects trademarks prior to their registration. The plaintiff alleged that the competitor copied its trademark when the competitor opened its business under a virtually identical name.

In court filings, the plaintiff presented witnesses who knew about the competitor’s intent to copy the trademark. The defendant had told the witnesses about his intention to take the Redefining Rehabilitation mark and incorporate his own company under a virtually identical name. As Mr. Nickel argued in court pleadings, the defendant’s actions amounted to intentional infringement and had to be immediately stopped, because the defendant’s use of a similar name caused confusion among customers. In the settlement, the competing company agreed to change its name and also paid funds to cover the plaintiff’s attorneys’ fees and other damages.

* The above information, and other articles presented in this website, are in compliance with Illinois RPC 1.6 as amended January 1, 2010.

Daniel Nickel represented Merpati Airlines, an Asia-based airline, in pursuing a fraud claim against an individual debtor in the United States Bankruptcy Court in Chicago. Merpati had a $1 million judgment against Alan Messner, the debtor. In Merpati’s adversary proceeding and related proceedings concerning the debtor, Merpati achieved its goal – the $1 million judgment was not dischargeable under the Bankruptcy Code.

In 2007, Merpati engaged Alan Messner and his business partners to lease two commercial airplanes. (The information presented here about the 2007 deal comes from a separate lawsuit that Merpati filed in federal court in the District of Columbia.) Messner’s business partner in the deal was a lawyer at a Washington D.C. law firm, Hume & Associates. In the deal, Merpati paid an up-front $1 million deposit that was held in the law firm’s trust account. As alleged in Merpati’s complaint, Messner and the law firm’s lawyers “knew that the security deposit was to be used solely to secure the [airplane] leases.” Merpati further alleged that, when the deal failed to be completed, instead of returning the deposit to Merpati as Merpati demanded, a lawyer at the firm “caused all or a portion of the security deposit to be paid” to himself, another lawyer at the firm, and Messner.

Merpati obtained a $1 million judgment against Messner.

After Merpati began procedures to enforce the judgment, Messner, a Chicago area resident, filed for Chapter 7 bankruptcy.

Normally, all claims against a Chapter 7 debtor, including judgments, are discharged or dismissed after the court approves the bankruptcy. There are exceptions to discharge, however, under Section 523 of the Bankruptcy Code. In Merpati’s case, the Bankruptcy Code states that a debt will not be discharged if obtained in a fraudulent manner.

Because Merpati believed that Messner acted fraudulently, Mr. Nickel aggressively pursued Merpati’s claim for non-dischargeability of the $1 million judgment against Messner. By collecting Messner’s bank and other financial records, and a two-day deposition of the debtor, Mr. Nickel marshaled evidence to show that fraud occurred and filed an adversary proceeding on Merpati’s behalf.

The United States Chapter 7 Trustee also became interested in the case and filed a separate adversary proceeding for non-discharge against the debtor. In 2009, Judge Sonderby granted judgment on the trustee’s case against the debtor. As a result, Messner’s $1 million debt to Merpati was not discharged and Merpati preserved its right to collect the $1 million.

Daniel J. Nickel P.C. represents creditors in state court and also in adversary proceedings under Section 523 of the Bankruptcy Code, as well as preference actions and contested proceedings in bankruptcy. Before a creditor writes off significant debt of a party in bankruptcy as “bad debt,” the creditor should consult a lawyer and carefully consider the facts of the case and see if there is any basis to prevent the debt from being discharged.

Merpati Airlines v. Alan Messner, No. 08-00234, United States Bankruptcy Court, N.D. Illinois.

The firm achieved some justice for an individual who lived in rural Illinois. The firm’s client, who was the defendant in the case, had a modest income.  However, like many people she had significant equity in her home.  The defendant’s home equity was reduced to nothing when a creditor filed a $118,000 judgment against her property.

The story begins back in 1999, when the defendant co-signed a note for her brother to buy a $38,000 semi-trailer. Her brother defaulted on payments, so the finance company filed suit in New York City and somehow the $38,000 obligation turned into a $118,000 default judgment against the defendant. The creditor then brought its oversized judgment to Illinois to enforce it. Mr. Nickel defended this individual and did the heavy lifting to ask the Illinois court to refuse to enforce the New York Judgment. Mr. Nickel argued in pleadings that the creditor did not serve process on the defendant and also that the judgment was fraudulently obtained. Therefore, the creditor’s judgment could not be enforced.

The firm obtained a great result. Just before the court was set to rule in May 2010, the creditor settled for $3,600 in new payments and kept the defendant’s prior payments of about $10,000 (settlement terms were not confidential and were filed with court). In return, the creditor agreed to release its lien against the defendant’s home. The law firm of Daniel J. Nickel, P.C. was proud to help this defendant who was caught in a difficult situation. Her case was a just cause against an over-reaching creditor who did not follow the rules for serving legal process on a party.

Daniel J. Nickel, P.C. has an established practice in creditor/debtor rights. The firm represents creditors and debtors in workouts, state court and in bankruptcy proceedings.

*The above information is in compliance with Illinois RPC 1.6 as amended January 1, 2010.

Show Dates:             Tuesday, December 6 – Saturday, December 10

Time:                          8:00 p.m. – 10:00 p.m.

Location:                  DePaul University Merle Reskin Theatre, 60 East Balbo Drive, Chicago

Tickets ($25/$45) can be purchased online at www.barshow.org, plus view entertaining videos of past years’ shows or call 312-554-2134. Daniel Nickel is one of the show’s cast members.

CIG Howard v. Hispanic Housing v. Mulder, No. 04 L 009880, Cook County Circuit Court