CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND v. BARBIC

Case No. 14 C 3312.

CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND et al Plaintiffs, v. MICHAEL BARBIC et al Defendant.

United States District Court, N.D. Illinois, Eastern Division.

February 24, 2016.


Attorney(s) appearing for the Case

Chicago Regional Council of Carpenters Welfare Fund, Plaintiff, represented by Travis J. Ketterman , Whitfield McGann & Ketterman.

Chicago Regional Council of Carpenters Apprentice Training Fund, Plaintiff, represented by Travis J. Ketterman , Whitfield McGann & Ketterman.

Chicago Regional Council of Carpenters Pension Fund, Plaintiff, represented by Travis J. Ketterman , Whitfield McGann & Ketterman.

Michael Barbic, Defendant, represented by John Vernon Schrock , John Schrock Law.


MOTION TO REINSTATE THE CASE AND ENTER JUDGMENT

Now come Plaintiffs, the Chicago Regional Council of Carpenters Pension Fund, et al., by their attorney, Travis J. Ketterman of Whitfield McGann & Ketterman, and respectfully requests that this Honorable Court reinstate the case and enter final judgment for the amounts found to be owed. In support of the motion, the Plaintiffs state as follows:

1. This action arises under Section 502 of the Employee Retirement Income Security Act and Section 301 of the Taft-Hartley Act. (29 U.S.C. §§1132 and 185). Jurisdiction is founded on the existence of questions arising thereunder.

2. Plaintiffs and Defendants entered into an Agreed Order of Dismissal on June 4, 2015. (Exhibit A — Agreed Order of Dismissal).

3. The Defendants made the following payments on the dates listed:

Payment Amount Payment Amount Past Due Due Date Due Receipt Date Received Amount 06/15/2015 $8,451.09 06/15/2015 $8,451.09 $0.00 07/15/2015 $8,451.06 07/27/2015 $8,451.00 $0.06 08/15/2015 $8,451.06 09/08/2015 $6,400.00 $2,051.06 09/15/2015 $8,451.06 10/14/2015 $4,000.00 $4,451.06 10/15/2015 $8,451.06 12/07/2015 $6,000.00 $2,451.06 11/15/2015 $8,451.06 $8,451.06 12/15/2015 $8,451.06 $8,451.06 01/15/2016 $8,451.06 $8,451.06 $67,608.51 $33,302.09 $34,306.42

4. On October 6, 2015, the Funds' attorney emailed the Defendants' attorney regarding the Defendants' late payments in August and September. The Defendants' attorney responded on October 7, 2015. (Exhibit B).

5. The Funds received an additional payment of $4,000.00 from the Defendants on October 14, 2015, but the Defendants remained delinquent in the settlement payments.

6. On November 30, 2015, the Funds' attorney and the Defendants' attorney exchanged a series of emails that discussed the delinquencies of the Defendant under the terms of the Agreed Order. (Exhibit C).

7. As a result of the email exchange on November 30, 2015, the Defendants did submit a check for $6,000 on December 7, 2015, but did not submit any additional payments.

8. On February 1, 2016, the Funds' attorney emailed the Defendants' attorney to provide an accounting of amounts owed and amounts paid. The email reiterated that the case must be reinstated prior to March 1, 2016 under the terms of the Agreed Order. Defendants' attorney acknowledged the email. (Exhibit D).

9. The Defendants have made no payments to the Funds since December 7, 2015.

10. In addition, Paragraph 3 of the Agreed Order of Dismissal provided:

That if the Defendant defaults on either paragraphs 1 or 2, the Plaintiffs shall have the right to reinstate this case for the sole purpose of entering Judgment for the balance owed pursuant to this Order, plus any additional unpaid ERISA contributions incurred, accrued interest, liquidated damages and Plaintiffs' attorney fees and cost expended in enforcing this order.

11. The Defendants breached Paragraph 1 of the Agreed Order of Dismissal by failing to make the agreed upon monthly installment payments to the Plaintiffs. The Defendants owes the Plaintiffs $34,306.42 under the Agreed Order of Dismissal. (Exhibit E — Sworn Declaration of John Libby).

12. The additional accrued interest since the June 4, 2015 Agreed Order of Dismissal was entered is $1,288.67. (Exhibit E — Sworn Declaration of John Libby).

13. The Plaintiffs' attorney fees and costs expended in enforcing the June 4, 2015 Agreed Order of Dismissal was $2,026.25. (Exhibit E — Sworn Declaration of John Libby).

14. Accordingly, the Defendants owe the Plaintiffs $37,621.34, which represents $34,306.42 in remaining settlement payments, $1,288.67 in accrued interest since June 4, 2015 and $2,026.25 in attorney fees and costs enforcing the Agreed Order.

WHEREFORE, Plaintiffs pray:

a) For entry of Judgment in favor of the Plaintiffs and against the Defendants in the amount of $37,621.34. b) That Plaintiffs have such other and further relief as by the Court may be deemed just and equitable all at the Defendant's costs pursuant to 29 U.S.C. §1132(g)(2)(E). IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND et al Plaintiffs, Case No. 14 C 3312 v. Judge Brown MICHAEL BARBIC et al Defendant.

Agreed Order of Dismissal

The parties hereby agree that this case has been settled and that all issues and controversies have been resolved to their mutual satisfaction.

IT IS HEREBY ORDERED

1. That the Defendant Michael Barbie, individually and doing business as Barbic Builders, shall pay to the Plaintiffs Sixty-Seven Thousand Six Hundred Eight Dollars and Fifty-One Cents ($67,608.51) as follows: $8,451.09 on or before June 15, 2015 $8,451.06 on or before July 15, 2015 $8,451.06 on or before August 15, 2015 $8,451.06 on or before September 15, 2015 $8,451.06 on or before October 15, 2015 $8,451.06 on or before November 15, 2015 $8,451.06 on or before December 15, 2015 $8,451.06 on or before January 15, 2016 2. That the Defendant shall remain current in its ERISA monthly reporting and payment obligations to the Plaintiffs. 3. That if the Defendant defaults on either paragraphs 1 or 2, the Plaintiffs shall have the right to reinstate this case for the sole purpose of entering Judgment for the balance owed pursuant to this Order, plus any additional unpaid ERISA contributions incurred, accrued interest, liquidated damages and Plaintiffs' attorney fees and cost expended in enforcing this order. 4. This case is dismissed without prejudice with leave to reinstate on or before March 1, 2016. 5. In the event a motion to reinstate is not filed on or before March 1, 2016, the case shall be deemed dismissed with prejudice without further order of the Court. ENTERED:__________________________ Judge Brown Magistrate Judge DATED: June 4, 2015 Prepared by: Travis J. Ketterman Whitfield McGann & Ketterman 111 East Wacker Drive, Suite 2600 Chicago, Illinois 60601 (312) 251-9700 From: John Schrock <jvschrock@netscape.net> Sent: Wednesday, October 07, 2015 10:39 AM To: Travis Ketterman Subject: Re: Barbie Builders (19045)

Travis:

I have sent this on to my client. I will relay any information that he provides me.

John V. Schrock 24047 West Lockport Street Suite 201-M Plainfield, IL 60544 jvschrock@netscape.net 815-246-3100 Fax: 779-234-6675

Website Link

PRIVILEGE AND CONFIDENTIALITY NOTICE: This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 251-2521 and is legally privileged. The contents of this e-mail and any attachments are intended to be and to remain confidential, and it may be subject to the applicable attorney-client or work product privileges. If you are not the intended recipient of this message, or if this message has been addressed to you in error, immediately alert the sender by reply e-mail and then delete this message and its attachments. Do not deliver, distribute or copy this message or attachments if you are not the intended recipient. Do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments, although this e-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted for any damage arising in any way from its use.

----Original Message----

From: Travis Ketterman <tketterman@wmklaborlaw.com>

To: Nathan Lagalo <NLagalo@crccbenefits.org>; John Schrock <jvschrock@netscape.net>

Cc: John F. Libby <JLibby@crccbenefits.org>

Sent: Tue, Oct 6, 2015 7:34 pm

Subject: Re: Barbie Builders (19045)

John,

As you will see below, Barbie Builders is behind in its settlement payments to the Funds. Please let me know when your client will become current. We do not want to have to seek a judgment based on the failure to pay.

I look forward to working with you to resolve this issue.

Travis

Sent from my iPhone

On Oct 6, 2015, at 4:17 PM, Nathan Lagalo <NLagalo@crccbenefits.org> wrote:

Travis,

Barbie Builders is not current with the payment plan. Below is a schedule of the payments made to date.

Payment Amount Payment Amount Past Due Due Date Due Receipt Date Received Amount 06/15/2015 $8,451.09 06/15/2015 $8,451.09 $0.00 07/15/2015 $8,451.06 07/27/2015 $8,451.00 $0.06 08/15/2015 $8,451.06 09/08/2015 $6,400.00 $2,051.06 09/15/2015 $8,451.06 $0.00 $8,451.06 10/15/2015 $8,451.06 11/15/2015 $8,451.06 12/15/2015 $8,451.06 01/15/2016 $8,451.06 $67,608.51 $23,302.09 $10,502.18

Thanks,

Nate Nathaniel Lagalo, Audit Dept Supervisor Chicago Regional Council of Carpenters Benefit Funds 12 E. Erie Street Chicago, IL 60611 Office: (312) 787-9455 x534 Direct: (312) 951-4905 Facsimile: (312) 787-3212 Email: nlagalo@crccbenefits.org

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THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE. If the reader of this message is not the intended recipient or an employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to this e-mail indicating in the subject line "Received in error" and then delete the message you received. Thank you very much for your cooperation. Chicago Regional Council of Carpenters Funds.

From: Travis Ketterman Sent: Monday, November 30, 2015 2:17 PM To: jvschrock Subject: RE: Barbie Builders (19045)

Thanks, I will let the Funds know.

Travis

From: jvschrock [mailto:jvschrock@netscape.net] Sent: Monday, November 30, 2015 2:10 PM To: Travis Ketterman <tketterman@wmklaborlaw.com> Subject: RE: Barbie Builders (19045)

Mr Ketterman:

Mr. Barbie advised that he is sending $6,000 today and another $6,000 in two weeks.

Sent from my Sprint Samsung Galaxy S® 6.

----Original message----

From: Travis Ketterman <tketterman@wmklaborlaw.com>

Date: 11/30/2015 11:16 AM (GMT-06:00)

To: John Schrock <jvschrock@netscape.net>

Subject: RE: Barbie Builders (19045)

As of today, Mr. Barbie owes $14,953.18. Another payment of $8,451.06 will be due on December 15.

Thanks,

Travis

From: John Schrock [mailto:jvschrock@netscape.net] Sent: Monday, November 30, 2015 11:13 AM To: Travis Ketterman <tketterman@wmklaborlaw,com> Subject: Re: Barbie Builders (19045)

Mr. Ketterman:

When I last talked to him, he advised me that he would be making a payment or two. How much does he owe as of today. Let me know and I will talk to him.

John V. Schrock John Schrock Law 24047 West Lockport Street Suite 201-M 815-246-3100 www.iohnschrocklaw.com ----Original Message---- From: Travis Ketterman <tketterman(S).wmklaborlaw.com> To: John Schrock <ivschrock@netscape.net> Sent: Mon, Nov 30, 2015 10:33 am Subject: FW: Barbie Builders (19045)

John,

Any chance that Barbie can get caught up on the settlement payments? If not, I will have to file a motion for judgment.

Thanks,

Travis

Travis J. Ketterman Whitfield McGann & Ketterman 111 East Wacker Drive, Suite 2600 Chicago, IL 60601 (312) 251-9700

THIS EMAIL AND ITS ATTACHMENTS ARE INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY WHO IS THE INTENDED RECIPIENT AND MAY CONTAIN INFORMATION THAT UNDER APPLICABLE LAW IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE OR ANY TYPE OF USE. IF THE READER IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, COPYING OR OTHER USE OF THIS EMAIL IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS EMAIL IN ERROR, PLEASE REPLY TO SENDER.

From: Nathan Lagalo [mailto: NLagalo@crccbenefits.org] Sent: Tuesday, November 10, 2015 9:18 AM To: Travis Ketterman <tketterman@wmklaborlaw.com> Cc: John F. Libby <JLibbv@crccbenefits.org> Subject: RE: Barbie Builders (19045)

Travis,

FYI, Barbie has not made any additional payments since 10/14/15 and will soon be over 2 months behind schedule. Below are the payments to date.

Payment Amount Payment Amount Past Due Due Date Due Receipt Date Received Amount 06/15/2015 $8,451.09 06/15/2015 $8,451.09 $0.00 07/15/2015 $8,451.06 07/27/2015 $8,451.00 $0.06 08/15/2015 $8,451.06 09/08/2015 $6,400.00 $2,051.06 09/15/2015 $8,451.06 10/14/2015 $4,000.00 $4,451.06 10/15/2015 $8,451.06 $8,451.06 11/15/2015 $8,451.06 12/15/2015 $8,451.06 01/15/2016 $8,451.06 $67,608.51 $27,302.09 $14,953.24

Thanks,

Nate

Nathaniel Lagalo, Audit Dept Supervisor Chicago Regional Council of Carpenters Benefit Funds 12 E. Erie Street Chicago, IL 60611 Office: (312) 787-9455 x534 Direct: (312) 951-4905 Facsimile: (312) 787-3212 Email: nlagalo@crccbenefits.org

Your future — Our Focus

THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE. If the reader of this message is not the intended recipient or an employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to this e-mail indicating In the subject line "Received in error" and then delete the message you received. Thank you very much for your cooperation. Chicago Regional Council of Carpenters Funds.

From: John Schrock <jvschrock@netscape.net> Sent: Monday, February 01, 2016 2:06 PM To: Travis Ketterman Subject: Re: Barbie Builders

Travis:

I have forwarded you e-mail on to my client. Thanks for providing me this information.

John V. Schrock John Schrock Law 24047 West Lockport Street Suite 201-M Plainfield, IL 60544 815-246-3100 www.johnschrocklaw.com ----Original Message---- From: Travis Ketterman <tketterman@wmklaborlaw.com> To: John Schrock <jvschrock@netscape.net> Cc: John F. Libby <JLibby@crccbenefits.org>; Nathan Lagalo <NLagalo@crccbenefits.org> Sent: Mon, Feb 1, 2016 1:29 pm Subject: Barbie Builders

John,

The last payment received from your client (Michael Barbie / Barbie Builders) was on December 7, 2015. As you will see, Barbie Builders is delinquent in the amount of $34,306.42. Below is their payment schedule to date.

Payment Amount Payment Amount Past Due Due Date Due Receipt Date Received Amount 06/15/2015 $8,451.09 06/15/2015 $8,451.09 $0.00 07/15/2015 $8,451.06 07/27/2015 $8,451.00 $0.06 08/15/2015 $8,451.06 09/08/2015 $6,400.00 $2,051.06 09/15/2015 $8,451.06 10/14/2015 $4,000.00 $4,451.06 10/15/2015 $8,451.06 12/07/2015 $6,000.00 $2,451.06 11/15/2015 $8,451.06 $8,451.06 12/15/2015 $8,451.06 $8,451.06 01/15/2016 $8,451.06 $8,451.06 $67,608.51 $33,302.09 $34,306.42

The case must be reinstated prior to March 1, 2016. Please let me know your client's position and whether any additional payments will be made prior to February 12, 2016. Otherwise, I will be forced to file a motion to obtain a judgment against Michael Barbie individually under the terms of the Agreed Order of Dismissal.

Thanks,

Travis

Travis J. Ketterman Whitfield McGann & Ketterman in East Wacker Drive, Suite 2600 Chicago, IL 60601 (312) 251-9700

THIS EMAIL AND ITS ATTACHMENTS ARE INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY WHO IS THE INTENDED RECIPIENT AND MAY CONTAIN INFORMATION THAT UNDER APPLICABLE LAW IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE OR ANY TYPE OF USE. IF THE READER IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, COPYING OR OTHER USE OF THIS EMAIL IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS EMAIL IN ERROR, PLEASE REPLY TO SENDER.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION CHICAGO REGIONAL COUNCIL OF CARPENTERS PENSION FUND et al Plaintiffs, Case No. 14 C 3312 v. Judge Brown MICHAEL BARBIC et al Defendant.

SWORN DECLARATION PURSUANT TO 28 U.S.C.A. § 1746

NOW COMES JOHN LIBBY, who after being duly sworn upon oath, states as follows:

1. I am the Manager of Audit and Collections for the Chicago Regional Council of Carpenters Pension Fund, the Chicago Regional Council of Carpenters Welfare Fund, the Chicago Regional Council of Carpenters Supplemental Retirement Fund, and the Chicago Regional Council of Carpenters Apprentice Training Fund ("Trust Funds") and in such capacity I am authorized to make this Declaration on behalf of the Trust Funds.

2. The Trust Funds receive contributions from numerous employers pursuant to Collective Bargaining Agreements between the employers and the Chicago Regional Council of Carpenters, ("Union"), and therefore, are multiemployer plans. (29 U.S.C. § 1002). The Trust Funds are administered at 12 East Erie, Chicago, Illinois and venue is proper in the Northern District of Illinois.

3. The Defendants are employers engaged in an industry affecting commerce that entered into a Collective Bargaining Agreement whose terms require the Defendants to pay fringe benefits to the Trust Funds.

4. The Collective Bargaining Agreement also binds the Defendants to the provisions of the Agreement and Declarations of Trust that created the Trust Funds ("Trust Agreements").

5. The Defendants are required to make contributions to the Trust Funds for each hour worked by its carpenter employees at the rate and in the manner specified in the Collective Bargaining Agreements and Trust Agreements. In addition, the Defendant is required to make contributions to the Trust Funds measured by the hours worked by subcontractors that are not signatory to a Collective Bargaining Agreement with the Union.

6. The Parties submitted an Agreed Order of Dismissal to this Court, which was entered by Judge Brown on June 4, 2015. The Agreed Order of Dismissal provided for the Defendants to remit $67,608.51 to the Trust Funds in six monthly installments beginning on June 15, 2015.

7. The Defendants violated Paragraph 1 of the June 4, 2015 Agreed Order of Dismissal by failing to pay the Plaintiffs in accord with the payment plan as provided in the Agreed Order of Dismissal.

8. The Defendant made the following payments on the dates listed:

Payment Amount Payment Amount Past Due Due Date Due Receipt Date Received Amount 06/15/2015 $8,451.09 06/15/2015 $8,451.09 $0.00 07/15/2015 $8,451.06 07/27/2015 $8,451.00 $0.06 08/15/2015 $8,451.06 09/08/2015 $6,400.00 $2,051.06 09/15/2015 $8,451.06 10/14/2015 $4,000.00 $4,451.06 10/15/2015 $8,451.06 12/07/2015 $6,000.00 $2,451.06 11/15/2015 $8,451.06 $8,451.06 12/15/2015 $8,451.06 $8,451.06 01/15/2016 $8,451.06 $8,451.06 $67,608.51 $33,302.09 $34,306.42

9. In addition, Paragraph 3 of the Agreed Order of Dismissal provided:

That if the Defendant defaults on either paragraphs 1 or 2, the Plaintiffs shall have the right to reinstate this case for the sole purpose of entering Judgment for the balance owed pursuant to this Order, plus any additional unpaid ERISA contributions incurred, accrued interest, liquidated damages and Plaintiffs' attorney fees and cost expended in enforcing this order.

10. The additional accrued interest since the June 4, 2015 Agreed Order of Dismissal was entered is $1,288.67.

11. The Plaintiffs' attorney fees and costs expended in enforcing the June 4, 2015 Agreed Order of Dismissal was $2,026.25.

12. Accordingly, the Defendants owe the Plaintiffs $37,621.34, which represents $34,306.42 in remaining settlement payments, $1,288.67 in accrued interest since June 4, 2015 and $2,026.25 in attorney fees and costs enforcing the Agreed Order.

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in this Declaration is true and correct.

By:___________________ JOHN LIBBY Manager, Audit and Collections

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