In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13‐1797, 13‐1807
CENTERPOINT ENERGY SERVICES, INC.,
Plaintiff‐Appellee,
v.
CAMEEL HALIM, et al.,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 2121 — Virginia M. Kendall, Judge.
____________________
ARGUED JANUARY 23, 2014 — DECIDED FEBRUARY 18, 2014
____________________
Before POSNER and RIPPLE, Circuit Judges, and GILBERT,
District Judge.*
POSNER, Circuit Judge. This is a diversity suit charging vi‐
olations of 740 ILCS §§ 160/1 et seq., Illinois’s version of the
Uniform Fraudulent Transfer Act, and of the Illinois com‐
mon law of successor and alter ego liability. The plaintiff is a
gas company that the parties refer to as CES. The defendants
*
Of the Southern District of Illinois, sitting by designation.
2 Nos. 13‐1797, 13‐1807
are a married couple named Halim (and the Halims’ person‐
al trusts, which need not be discussed separately, however)
and a company they wholly own named WR Property Man‐
agement, LLC. The district court granted summary judg‐
ment in favor of CES and entered a final judgment for $2.7
million (we round all dollar figures to the nearest hundred
thousand), which includes interest and attorneys’ fees along
with damages.
In the fall of 2006 Wilmette Real Estate & Management
Co., LLC, another company wholly owned by the Halims (in
fact WR’s predecessor, as we’ll see), had contracted with
CES to buy natural gas from it. The Halims owned, among
other assets, 41 rental properties in the Chicago area. Wil‐
mette was the manager and lessor of these properties, and
was responsible for supplying gas to them. CES delivered
gas to the properties pursuant to the contract, but in No‐
vember 2007 Wilmette stopped paying it. Between then and
March 1, 2008, when CES finally cut off service, Wilmette
racked up $1.2 million in gas bills, which it refused to pay.
CES sued Wilmette in Illinois state court for breach of
contract. The court granted summary judgment in favor of
CES and in December 2009 entered a final judgment for $1.7
million, affirmed in Centerpoint Energy Services, Inc. v. Wil‐
mette Real Estate & Management Co., 2010 WL 9922947 (Ill.
App. Sept. 14, 2010). The difference between the amount of
the judgment and the $1.2 million in unpaid gas bills repre‐
sented interest and attorneys’ fees. The contract had re‐
quired Wilmette, should it be delinquent in paying CES’s
invoices, to compensate CES “for all costs and expenses in‐
curred by [CES] (including reasonable attorney fees) to col‐
lect amounts due and owing” under the contract, and to pay
Nos. 13‐1797, 13‐1807 3
interest on the unpaid balance at an uncompounded rate of
1.5 percent per month (18 percent per year).
Wilmette paid no part of the judgment. For by this time it
was a shell, though it had not been dissolved. In July 2008,
just three weeks after CES had filed suit, the Halims had
transferred all of Wilmette’s financial and other assets, along
with all of its contracts and employees, to a new company,
defendant WR Property Management, LLC, also wholly
owned by the Halims, as we noted. Even before the transfer
to WR the Halims had taken steps to prevent the judgment
against Wilmette from being paid. Wilmette had billed the
lessees of the properties it managed for the gas that it had
bought from CES and delivered to the lessees. And the les‐
sees had paid—$1.2 million. The Halims caused Wilmette to
transfer that money to them rather than use it to honor its
contractual obligation to CES.
In April 2010, some four months after the entry of judg‐
ment in the state court case, CES, unable to collect the judg‐
ment, sued the Halims and WR in federal court, alleging
fraudulent conveyance of Wilmette’s assets to the Halims
and WR in violation of the Fraudulent Transfer Act; succes‐
sor liability (of WR as successor to Wilmette); and alter ego
liability—the Halims were the alter ego of Wilmette and lia‐
ble therefore for its debts regardless of any fraudulent trans‐
fers. The district judge granted summary judgment for CES
on the fraudulent‐conveyance and successor‐liability claims
and having done so dismissed the alter ego charge as moot.
She entered a final judgment against the Halims and WR for
$2.7 million—the amount of the unpaid state‐court judgment
against Wilmette, plus post‐judgment interest from the date
4 Nos. 13‐1797, 13‐1807
of that judgment at an annual rate of 9 percent and attor‐
neys’ fees incurred by CES in the district court proceeding.
The Fraudulent Transfer Act punishes two types of fraud
on a creditor. The first (“actual fraud”) is a transfer of assets
“with actual intent to hinder, delay, or defraud any credi‐
tor.” 740 ILCS 160/5(a)(1). The second (“constructive fraud”)
is a transfer of assets “without receiving a reasonably equiv‐
alent value in exchange for the transfer or obligation, and the
debtor … intended to incur, or believed or reasonably
should have believed that he would incur, debts beyond his
ability to pay as they became due.” 740 ILCS 160/5(a)(2)(B).
The subjective element (“actual intent”) makes the first type
of fraudulent conveyance more difficult to prove, and while
CES alleged both types, it based its motion for summary
judgment (which the district judge granted) on the second. It
argued successfully that the Halims had caused Wilmette to
transfer all its assets to them and WR, leaving Wilmette—
which received nothing in return—unable to pay its debt to
CES.
The defendants argue that the assets transferred by Wil‐
mette belonged not to it but to the Halims personally, their
personal assets being commingled in Wilmette’s bank ac‐
counts with Wilmette’s own assets. But what the evidence
showed was different—that the Halims managed Wilmette’s
finances in such a way that the company would have a “zero
balance” so that creditors could not collect a judgment
against it. If it incurred a debt that the Halims wanted paid,
for example a debt to a contractor who did work on one of
their properties, the Halims would deposit money in Wil‐
mette’s bank account to enable Wilmette to pay the debt. If
there was money left over after the debt was paid, or when
Nos. 13‐1797, 13‐1807 5
Wilmette received rental or other money, the Halims would
cause Wilmette to transfer the money to them for deposit in
their personal bank accounts, leaving Wilmette with a zero
balance.
Between 2005 and 2008 Wilmette transferred $10.9 mil‐
lion to the Halims. They say that rather than being intended
to evade the judgment the transfer was repayment of loans
that the Halims had made to Wilmette. But there are no loan
documents. They say they deposited $26 million in Wil‐
mette’s account during this period, but there is no documen‐
tation of that either. The absence of documentation supports
CES’s claim of alter ego liability; Wilmette was the Halims’
piggy bank. If, moreover, they provided Wilmette with a net
capital infusion of $15.1 million ($26 million – $10.9 million),
what happened to that money? Wilmette reported a net loss
during the three‐year period of the supposed transfers to
and from the Halims. They do not explain where the $15.1
million went.
And lest CES find anything in Wilmette’s bank accounts
or other assets to levy on in satisfaction of a judgment in the
breach of contract suit, remember that shortly after that suit
was filed the Halims had emptied all of Wilmette’s remain‐
ing assets (having already transferred to their personal bank
accounts the $1.2 million that Wilmette had obtained from
the resale of CES’s gas to its lessees) into their newly created,
wholly owned company WR.
So CES proved constructive fraud. It also proved succes‐
sor liability. Under Illinois law, the purchase even of a com‐
pany’s entire assets ordinarily does not cause the purchaser
to assume the company’s liabilities. But there are exceptions,
of which the most common and obvious is if the purchaser
6 Nos. 13‐1797, 13‐1807
expressly assumes those liabilities. Vernon v. Schuster, 688
N.E.2d 1172, 1175–76 (Ill. 1997); Diguilio v. Goss International
Corp., 906 N.E.2d 1268, 1275–76 (Ill. App. 2009). Wilmette did
that, assigning to WR “all its rights and obligations as manag‐
ing agent for the properties” (emphasis added)—obligations
that included Wilmette’s debt to CES. The defendants have
conceded as they must that WR is Wilmette’s successor. So
WR is liable for Wilmette’s debt but so are the Halims for
having caused Wilmette to transfer to them the $1.2 million
that Wilmette owed CES, an action that in combination with
the transfer of Wilmette’s remaining assets to WR—also en‐
gineered by the Halims—rendered Wilmette unable to pay
any part of the gas bill, let alone the state‐court judgment.
There is no more need for us than there was for the dis‐
trict judge to address CES’s third claim for relief—that the
Halims are the alter ego of Wilmette and WR. But we don’t
want to leave the impression that it is a negligible claim; it is
a strong claim. The Halims commingled Wilmette’s assets
with their personal assets, failing as we saw earlier to com‐
ply with the formalities that would have provided documen‐
tary evidence of an allocation of assets between them and
Wilmette. And now they are doing the same with WR’s as‐
sets. They began in April 2011 to drain WR’s assets into yet
another company of their creation, CH Ventures, LLC, and
the process is, it appears, now complete, leaving WR the
same kind of empty shell as Wilmette. (The “Contact Us”
page on CH Venture’s website lists the company’s name as
“WR Property Management, LLC.” www.chven
turesllc.com/contact.php (visited Feb. 18, 2014).) So entwined
are the Halims and WR that it was a violation of Fed. R.
App. P. 32(a)(7)(B) for the Halims, and WR, to file separate
Nos. 13‐1797, 13‐1807 7
opening and reply briefs, the combined length of which vio‐
lates the word limits in that rule.
If the Halims are wise, they will start heeding the adage:
if you’re in a hole, stop digging.
We need to discuss two more issues. 735 ILCS 5/2‐1303
provides that “judgments recovered in any court shall draw
interest at the rate of 9% per annum from the date of the
judgment until satisfied.” The district court ruled that CES
was entitled to such interest beginning on the date of the
state court judgment. Relying on language in the gas con‐
tract, CES had asked for interest at the rate of 18 percent ra‐
ther than 9 percent, but the district court ruled that under
Illinois law the terms of a contract sued upon “merge” into
the final judgment in a suit on the contract, thus limiting a
prevailing plaintiff to the relief granted in the judgment. Do‐
err v. Schmitt, 31 N.E.2d 971, 972 (Ill. 1941); Bank of Pawnee v.
Joslin, 521 N.E.2d 1177, 1186–87 (Ill. App. 1988); U.S. Mort‐
gage Co. v. Sperry, 138 U.S. 313, 352 (1891) (Illinois law). To
allow a fresh suit would be in effect to allow the reopening
of a suit that had been closed by the entry of a final judg‐
ment. The state court judgment for CES had made no provi‐
sion for interest, so CES’s claim to 18 percent interest rested
entirely on the language of the contract, and the contract suit
could not be reopened to correct that omission from the
judgment.
But as a consolation prize the district court awarded CES
statutory post‐judgment interest dating from the entry of the
final judgment in the state court case. In effect the district
court said to CES: “I can’t give you 18 percent, but you’re
entitled by Illinois law to 9 percent, so I’ll give you that.”
8 Nos. 13‐1797, 13‐1807
The defendants challenge this ruling on the ground that
CES hadn’t proposed 9 percent as an alternative rate of in‐
terest to which it might be entitled. Actually CES had pro‐
posed the 9‐percent alternative, in its petition for fees and
interest. And in any event both the imposition of post‐
judgment interest and the 9 percent rate are required by the
Illinois statute. 735 ILCS 5/2‐1303; Niemeyer v. Wendy’s Inter‐
national, Inc., 782 N.E.2d 774, 777 (Ill. App. 2002); Houben v.
Telular Corp., 309 F.3d 1028, 1039 (7th Cir. 2002) (Illinois law).
No proposal, no contractual provision, is required.
Last is the question of attorneys’ fees incurred by CES in
the current litigation. The contract language quoted at the
beginning of this opinion, which makes Wilmette (and de‐
rivatively the Halims and WR) liable “for all costs and ex‐
penses incurred by [CES] (including reasonable attorney
fees) to collect amounts due and owing,” is broad enough to
embrace the expenses incurred by CES in this suit—a suit to
collect amounts owed CES by virtue of Wilmette’s breach.
But the defendants argue that the right conferred by the con‐
tractual language is extinguished by the merger rule already
mentioned, and that therefore CES should have asked the
state court to include in its judgment an order that the de‐
fendants pay attorneys’ fees incurred in any subsequent suit
by CES to enforce the judgment, such as the present suit.
Not so. Illinois law does not merge a contractual right to
attorneys’ fees into a judgment when the fees are “ancillary
to the primary cause of action,” Stein v. Spainhour, 553
N.E.2d 73, 76 (Ill. App. 1990); see also Lowrance v. Hacker, 966
F.2d 1153, 1157–58 (7th Cir. 1992) (Illinois law), and the at‐
torneys’ fees incurred by CES to enforce the state court
judgment in a separate proceeding in a different court sys‐
Nos. 13‐1797, 13‐1807 9
tem were ancillary to the fees incurred in the primary pro‐
ceeding, which was the state court case that established the
defendants’ breach of the gas contract.
Merger would encourage the kind of contumacy dis‐
played by the Halims in this case, because by voiding the
attorneys’ fees provision in the gas contract it would reduce
the cost to them of unlawfully resisting efforts to collect a
judgment awarded against them and upheld on appeal. And
the prospect of merger would give the creditor an incentive
to ask the court in his collection suit (CES’s state court suit)
either to leave the judgment open to allow an additional
award of fees should the creditor have to bring a separate
suit to enforce the judgment, or to award the creditor some
rough estimate of what the future collection costs would be
likely to be. Neither is a satisfactory solution to problems
created by a merger rule. Moorhead v. Dodd, 265 S.W.3d 201,
204–05 (Ky. 2008).
The defendants make a number of other arguments, but
they are makeweights, repetitive, or frivolous, and do not
merit discussion, with one minor exception. The defendants
are correct that the postjudgment interest rate applicable to
the judgment entered by the district court (as distinct from
the earlier state‐court judgment) is 0.14 percent per annum,
not the 0.15 percent that the district court awarded. 28 U.S.C.
§ 1961(a). This works out to a difference of about $270 a
year—on a judgment of $2.7 million. Nevertheless the de‐
fendants are entitled to the correction, and we direct the dis‐
trict judge to make it.
With that minor modification, the judgment of the dis‐
trict court is AFFIRMED.