Opinion
Case No. 03-10554-JNF.
May 30, 2008
MEMORANDUM
I. INTRODUCTION
The issue before the Court is whether grounds exist to vacate this Court's order of March 12, 2007 (the "Order") allowing the "Debtor's Motion to Re-Open Case" (the "Motion to Reopen") filed by John Thomas Russo (the "Debtor") on February 27, 2007 for the purpose of listing his aunt, Jennie Russo ("Ms. Russo"), as a creditor on his schedules. Additionally, the Court must determine whether the parties are entitled to attorneys' fees and costs associated with an adversary proceeding commenced by Ms. Russo against the Debtor after the reopening of the case and whether a state court judgment and execution procured by her in 2006 should be deemed null and void under 11 U.S.C. § 524. The Court conducted an evidentiary hearing on this matter on March 12, 2008. All matters are now ripe for determination, and the Court makes the following findings of fact and rulings of law pursuant to Fed.R.Bankr.P. 7052.
As discussed below, the Debtor now contests that he owes a debt to Ms. Russo.
Although many of the facts giving rise to Ms. Russo's claims against the Debtor were set forth in the Court's prior decision in this case, Russo v. Russo, (In re Russo), No. 07-1194, 2007 WL 4233118 (Bankr. D. Mass. Nov. 28, 2007), a review of all relevant facts, as supplemented by the trial testimony, is warranted.
II. FACTS
Beginning in 1977, the Debtor operated a trucking business under the name J.T. Russo, Inc. The Debtor's business experienced a number of difficulties over the years, and he received checks or cash totaling approximately $82,000 from Ms. Russo between 1983 and 2000, which he used for his business and never repaid. Despite Ms. Russo's assistance, the Debtor's financial problems persisted and his health began to deteriorate. He closed his business sometime in 2000 and filed an individual voluntary petition under Chapter 7 of the Bankruptcy Code on January 22, 2003. According to the Debtor's schedules, the vast majority of his debt related to obligations of J.T. Russo, Inc., which he had personally guaranteed. He did not list Ms. Russo as a creditor on any of his schedules or lists, including the creditor matrix, and he did not mention her anywhere in his statement of financial affairs. On his Schedule A-Real Property, the Debtor listed his residence located in Natick, Massachusetts with a current market value of $475,000, subject to a mortgage in favor of Natick Federal Savings Bank securing an obligation of approximately $178,000. On Schedule C-Property Claimed as Exempt, the Debtor claimed the Massachusetts homestead exemption. See Mass. Gen. Laws ch. 188, § 1. Shortly after the meeting of creditors, the Chapter 7 Trustee filed a Report of No Distribution.
See Amended Schedule D-Creditors Holding Secured Claims, filed by the Debtor on March 3, 2003.
Sometime in early 2003, the Debtor had emergency surgery for removal of his gall bladder, and Ms. Russo cared for him at his Natick home while he recuperated in March of 2003. The Debtor testified that he first informed Ms. Russo of his bankruptcy filing around that time. The Debtor received a discharge of his dischargeable debts on December 18, 2003, and the Court closed the case on March 19, 2004. The Debtor never listed Ms. Russo as a creditor prior to the closure of the case.
The Debtor was unable to recall at trial the exact date of his surgery.
The Debtor sold his home in 2005 and did not deliver any of the sale proceeds to Ms. Russo. He then relocated to Florida and purchased a home there. Ms. Russo was dismayed that the Debtor did not repay her after the sale. She sent him a demand letter for the money in 2005, but he still failed to repay her. She then commenced an action against him in the Waltham District Court. The Debtor did not defend the action, and she obtained a default judgment and an execution against him from that court on July 14, 2006 and July 25, 2006, respectively. On September 24, 2006, the Debtor's mother died, and on January 24, 2007, Ms. Russo levied on the Debtor's one-quarter interest in real estate owned by his deceased mother (the "Property"). A few weeks later, on February 27, 2007, the Debtor filed the Motion to Reopen and requested leave to "to add an additional creditor to his petition," namely, Ms. Russo. He also moved to amend Schedule F-Creditors Holding Unsecured Nonpriority Claims for the purpose of listing Ms. Russo's claim in the amount of $83,000. He described Ms. Russo's claim as being owed "Since approx. 1987" and as a "Personal loan from aunt." He did not indicate whether the claim was contingent, unliquidated or disputed. The Court allowed both Motions on March 12, 2007. The Court issued a "Notice to Added Creditors" on March 13, 2007, advising Ms. Russo that the deadline to file a nondischargeability complaint was May 12, 2007.
The Debtor's interest in the Property was not property of his bankruptcy estate because he became entitled to acquire it more than 180 days after the petition date. See 11 U.S.C. § 541(a)(5)(A).
Ms. Russo timely filed a nondischargeability Complaint against the Debtor on May 11, 2007 (the "Original Complaint"). In response to the Amended Complaint, the Debtor filed both a Motion to Dismiss (the "Original Motion to Dismiss"), supported by a Memorandum and an answer (the "Answer"). In the first paragraph of the Memorandum attached to the Original Motion to Dismiss, the Debtor stated:
In 1983 the Plaintiff, [Ms. Russo], agreed to loan money to her nephew, [the Debtor]. [The Debtor], the Defendant, requested this money so that he could put it toward his business. The Defendant intended to use this money for his business and he fully intended to repay the Plaintiff the total debt incurred.
Memorandum in Support of Debtor's Original Motion to Dismiss at ¶ 1. (emphasis added). In his Answer, the Debtor stated, in part: "The Debtor admits . . . that [Ms. Russo] loaned him money during the period of 1983 through 2000." See Plaintiff's Exhibit 4 at ¶ 4, see also ¶¶ 5 and 6. The Debtor pled a number of affirmative defenses in his Answer but never asserted by way of affirmative defense or otherwise that the monies were gifts.
Ms. Russo amended the Original Complaint on July 6, 2007 (the "Amended Complaint"). In the Amended Complaint, Ms. Russo sought a determination that $82,000 she loaned to the Debtor was nondischargeable under 11 U.S.C. § 523(a)(2)(A), because, she alleged, he borrowed the money for gambling instead of legitimate business purposes and under § 523(a)(2)(a), because the Debtor intentionally omitted her as a creditor in his original bankruptcy schedules. She supported the second count of the Amended Complaint with the affidavit of Mary Ann McGovern, the Debtor's sister ("Ms. McGovern"), who attested that the Debtor told her in 2003 that he had "intentionally omitted [Ms. Russo] as a creditor on his 2003 bankruptcy petition. . . ." Ms. Russo also alleged that her attachment of the Debtor's interest in the Property was the catalyst for the Debtor's filing of the Motion to Reopen.
In both the Original Complaint and the Amended Complaint, Ms. Russo alleged the total amount owed to her as $82,000. The Debtor, in his amended Schedule F, listed the amount at $83,000. For purposes of this decision, the Court relies on the figure asserted by Ms. Russo in the Complaints.
As explained in Russo, the Court presumed that this citation to 11 U.S.C. § 523(a)(2)(A) was a typographical error and that Ms. Russo intended to rely on § 523(a)(3) which provides an exception from discharge for certain debts which are not timely scheduled. See Russo at *3 n. 10.
The Debtor disputed that he intentionally omitted Ms. Russo from his schedules and filed an affidavit on June 15, 2007, in which he represented that he had advised her of his bankruptcy case "within about two months after I filed the petition. . . ." Ms. Russo filed her own affidavit on June 24, 2007 in which she attested that she "had no knowledge of [the] 2003 bankruptcy filing by [the Debtor]" and that she "learned of the . . . bankruptcy filing . . . in March of 2007."
In June of 2007, representatives of the Debtor's mother's estate attempted to sell the Property. Upon a motion filed by the Debtor, the Court ordered on June 27, 2007 that the Debtor's interest in the sale proceeds be held in escrow. On July 13, 2007, the Debtor filed a "Renewed Motion to Dismiss" the Amended Complaint (the "Renewed Motion to Dismiss"), seeking costs and attorneys' fees pursuant to 11 U.S.C. § 523(d). He also sought a determination that the judgment and execution issued by the Waltham District Court are void and that Ms. Russo should be held in contempt for violating the discharge injunction imposed by 11 U.S.C. § 524. The Debtor did not dispute the existence or amount of the debt allegedly owed to Ms. Russo in the Renewed Motion to Dismiss and did not characterize the sums advanced as gifts. On the contrary, the first paragraph of the Debtor's Memorandum filed in support of the Renewed Motion to Dismiss is identical to above quoted language of the Memorandum attached to the Original Motion to Dismiss.
Pursuant to a further Order dated July 18, 2007, the Court directed counsel to the Debtor and Ms. Russo to hold the sum of $95,000 in a jointly controlled escrow account (the "Escrow Fund"), pending final resolution of the adversary proceeding between the parties.
That statute provides:
(d) If a creditor requests a determination of dischargeability of a consumer debt under subsection (a)(2) of this section, and such debt is discharged, the court shall grant judgment in favor of the debtor for the costs of, and a reasonable attorney's fee for, the proceeding if the court finds that the position of the creditor was not substantially justified, except that the court shall not award such costs and fees if special circumstances would make the award unjust.
11 U.S.C. § 523(d).
The Court conducted a hearing on the Renewed Motion to Dismiss on September 14, 2007 and thereafter issued a Memorandum and Order on November 28, 2007, denying the motion. See Russo v. Russo, (In re Russo), No. 07-1194, 2007 WL 4233118 (Bankr. D. Mass. Nov. 28, 2007). In its decision, the Court found that the facts alleged by Ms. Russo in the Amended Complaint transcended her claims for nondischargeability and raised serious questions about whether the Debtor initially concealed his bankruptcy filing from Ms. Russo and later sought to reopen the case for the specious purpose of insulating the Property from her reach. The Court ruled:
This adversary proceeding and all of the litigation between the parties in this Court ensued from the Court's order dated March 12, 2007 which allowed the Debtor's Motion to Reopen. Had the Court not permitted the Debtor to reopen the case, his debt to [Ms. Russo] would remain undischarged and she would be free to pursue him and his property interests in state court as she had been doing until March 12, 2007. . . . If the Plaintiff's position is correct, the Debtor's filing of the Motion Reopen was an attempted circumvention of the equitable principles underlying the Bankruptcy Code. The Court is therefore compelled to determine whether there has been an abuse of the judicial proceedings of this Court and whether to invoke the doctrine of judicial estoppel, or, at the very least, determine whether grounds exist for relief from the Court's order of March 12, 2007 under Fed.R.Civ.P. 60(b)(3).
. . .
Id. at * 5. The Court concluded that an evidentiary hearing was required to determine whether grounds existed to vacate the Order and deferred the issues regarding attorneys' fees and violation of the discharge injunction until the conclusion of that hearing.Id. at *6, *8.
The Court conducted the evidentiary hearing on March 12, 2008. Three witnesses testified: the Debtor, Ms. Russo, and Ms. McGovern, and the parties introduced four exhibits into evidence, including the Debtor's Answer to Ms. Russo's Original Complaint. There is no dispute that the Debtor initially failed to schedule Ms. Russo as creditor in his bankruptcy case. Indeed, the Debtor filed the Motion to Reopen for the sole purpose of adding her as a creditor. The narrow issue for determination at trial was whether the Debtor omitted her intentionally and then filed the Motion to Reopen to prevent her from reaching his interest in the Property. If so, grounds would exist to vacate the Order, the case would revert to the status quo ante, and Ms. Russo would be free to pursue the Debtor for the debt and her rights to the Property. Russo at *5.
Ms. Russo is a 90 year old woman. She testified that she made several loans in cash or by check to the Debtor over a seventeen year period to assist him with his trucking business. She testified that he promised to repay the money "when he got around to it[,]" or when he could "round up some money[,]" Tr. at 6, 15, 16, and 19. She introduced a number of checks and bank statements into evidence to document the loans. Due to the passage of time, she could not remember the specific circumstances surrounding each loan she made to the Debtor. She insisted, however, that she expected to be paid back. The Debtor asserted at trial that the checks and bank statements were too incomplete to support a claim to $82,000. On cross examination, Debtor's counsel showed Ms. Russo transcripts of her deposition which took place a week prior to trial, during which she testified under oath that she had never asked the Debtor for repayment. Tr. at 15-16. Ms. Russo appeared confused by the comparison of her live testimony to that of her earlier deposition and insisted that she had asked the Debtor for repayment. Id. She also appeared confused when questioned about the number of times she saw the Debtor since 2000 and the dates of certain events. Despite her confusion over the dates, she had specific recollections about the Debtor's convalescence in 2003. When questioned about whether the Debtor first told her of his bankruptcy filing during this time, she replied "I didn't hear that for a while. No, no. John never told me direct[ly] himself." Tr. at 33. During cross examination, counsel asked her whether the Debtor raised the issue of the unpaid debt in early 2003:
She introduced four canceled checks dated from 1989 to 1997 totaling $41,000, made payable to the Debtor or J.T. Russo, Inc. and one cashier's check, dated January 1, 1998, in the amount of $20,000, made payable to her. The bank statements reflected checks issued in amounts between $1,500 to $5,000, in the years 1983, 1984, 1985, 1997 and 1999, but did not reflect that the checks were made payable to or cashed by the Debtor.
Q: And isn't it true that you said, 'Don't worry about it, John. Your health is more important'?
A: Yes. It was after, when I found out he was talking to me about it, I sa[id], 'John, get back — get back on your feet again and get better.' I sa[id], 'Then we'll discuss things differently.'
Tr. at 33.
At the conclusion of her direct testimony, the Court inquired of Ms. Russo when she first learned of the Debtor's bankruptcy filing. She could not recall the specific date but testified that she heard about it "right after it happened." Tr. at 43-44. She reiterated that the Debtor told her he would repay her when he could, and when asked by the Court whether she ever told the Debtor that sums she gave him were gifts, she replied: "No, never. Never." Tr. at 43.
This testimony is not consistent with Ms. Russo's affidavit in which she attested that she learned of the bankruptcy filing from the Debtor in March of 2007. See Plaintiff's Exhibit No. 2.
Ms. McGovern testified that her brother told her about his bankruptcy filing in 2003 and that he intentionally omitted Ms. Russo from his list of creditors "because he wanted to pay her back." Tr. at 46. She indicated that she did not tell her aunt about her bother's bankruptcy case. She testified:
This testimony is consistent with Ms. McGovern's affidavit filed in connection with Ms. Russo's Amended Complaint.
Q: Do you recall any conversation about loan repayment in conjunction with the selling of his [Natick] house?
A: Just that he would sell — give it back when he sold his [Natick] house.
Tr. at 47. The Debtor denied making that statement to his sister. Tr. at 83.
The Debtor admitted receiving checks from Ms. Russo several times over the years, but claimed that she never asked for repayment. He testified that he never promised repayment after the sale of his home or at any other time and that he considered the monies to be gifts. Tr. at 78, 79, 87, and 92. When asked why he did not list Ms. Russo as a creditor in his bankruptcy case, he replied: "I didn't — because it never — it never came up. . . . My aunt said . . . 'Don't worry about it. . . .' and it wasn't even a matter of concern." Tr. at 77-78. The Debtor later clarified this answer when examined by the Court:
[M]y aunt, you know, my aunt never mentioned anything about the money, so if I had known that this was going to come up in 2006 or '07, I would have put my aunt on it, but she always just said to me, 'Don't worry about the money, as long as you have your health.' Or I would have put her on there.
Tr. at 103. When asked what his understanding was as to these monies, he replied:
She had — she had — she had helped out other members of the family, that she believed that's what she was there for. She's a great lady. She was there for, to help people that was [sic] in trouble. I mean, I know she helped my father, she helped me. She's helped out my cousin, she's helped a lot of people out. But she's never asked for any money in return.
Tr. at 78-79.
He recounted numerous conversations and visits he had with Ms. Russo since 2000 and specifically recalled their March, 2003 discussion during his convalescence:
Q: And did you have a discussion with her about the bankruptcy?
A: Yes. I told her a couple of months — a couple of weeks that — after I filed that, 'Aunt Jennie, you know, I'm not doing anything in the business. I can't do it anymore. I owe so many people money, I filed bankruptcy.' And she used to say to me, 'John, your health comes first. Don't worry about the money. Your health comes first. That's what I'm here for, to help my nieces and nephews.'
This testimony is consistent with the Debtor's affidavit. See Plaintiff's Exhibit 3.
Tr. at 71. The Debtor made repeated references during his testimony to this conversation and his understanding that he no longer had to worry about the obligation. See Tr. at 75, 78, 80, and 103. When questioned about his characterization of the monies as a loan in both his Answer and in his amended Schedule F, he replied that those documents should have reflected the word "gift" instead of "loan." Tr. at 92.
III. DISCUSSION
As discussed above, the purpose of the evidentiary hearing was to determine whether the Debtor was attempting to circumvent the equitable principles underlying the Bankruptcy Code when he moved to reopen the case and whether grounds exist to vacate the Order reopening this case. The Court finds that such grounds do exist and will vacate the Order.
As noted in this Court's prior decision,
The decision to reopen a case under 11 U.S.C. § 350 is discretionary. Mass. Dep't of Revenue v. Crocker (In re Crocker), 362 B.R. 49, 53 (B.A.P. 1st Cir. 2007) (citing In re McGuire, 299 B.R. 53, 55 (Bankr.D.R.I. 2003)). "This discretion depends upon the circumstances of the individual case and accords with the equitable nature of all bankruptcy court proceedings." Id. (quoting In re Case, 937 F.2d 1014, 1018 (5th Cir. 1991)). The Code does not define "other cause" in § 350 but bankruptcy courts may consider equitable factors in determining whether such exists. In re Malden Mills Indus., Inc., 361 B.R. 1, 7 (Bankr.D.Mass. 2007).
In re Russo, No. 07-1194, 2007 WL 4233118 *5 (Bankr. D. Mass. Nov. 28, 2007).
The Debtor advanced two irreconcilable theories at trial for initially failing to list Ms. Russo as a creditor. First, he testified that he believed the funds received from Ms. Russo were gifts, much like she had extended to other members of his family, which he had no obligation to repay. See Tr. at 77-80, 86-87, and 92. He also testified that he omitted her from his bankruptcy schedules because she forgave the debt in March, 2003 when he was ill. See Tr. at 71, 75, 80, and 103. The latter position is nonsensical because the Debtor filed his bankruptcy petition two months before any alleged loan forgiveness occurred. Further, the Court finds that the Debtor's testimony that Ms. Russo forgave his obligations to her to be incredible because of the conflicting testimony on this subject offered by him and Ms. Russo. She maintained that, rather than forgiving the loans in 2003, she told him not to worry about the money until after he got "back on his feet." See Tr. at 33. The credible evidence establishes that, far from being a complete release, Ms. Russo's statement reflected her willingness to wait for repayment until the Debtor regained his health. That reprieve ended in 2005 when the Debtor sold his home and failed to deliver any proceeds to her. The Debtor did not remit payment afer she sent the 2005 demand letter, and he allowed the Waltham District Court action to proceed to default judgment. By that time, Ms. Russo had unambiguously demonstrated her expectation of repayment, and the Debtor took no action to reopen his case until two years later after she attached his interest in the Property.
The Debtor's fallback position, that the funds advanced by Ms. Russo were gifts from the outset, is simply not credible and is unsupported by any document filed by the Debtor in this case or in the adversary proceeding. Indeed, those documents contradict this defense. See Plaintiff's Exhibit 4 and the Memoranda filed by the Debtor in support of the Original Motion to Dismiss and the Renewed Motion to Dismiss, in all of which he conceded that he owed Ms. Russo a debt in the amount of at least $82,000. The parties engaged in extensive litigation in this case and in the adversary proceeding following the entry of the Order. The Debtor filed objections to discovery motions and motions involving the sale of the Property, an affidavit, and two motions to dismiss Ms. Russo's complaints. Nowhere in any of those pleadings did he characterize Ms. Russo's claim as disputed or the monies advanced by her as gifts.
The Court concludes that the Debtor's gift defense is nothing more than a recently contrived position asserted for the purpose of shielding his postpetition asset, the Property, from the reach of a creditor he intentionally omitted from his original bankruptcy schedules.
The Court recognizes infirmities in Ms. Russo's testimony concerning the dates she was informed of the bankruptcy filing and the insufficiency of the checks and bank statements to establish the total $82,000 debt. Nevertheless, the Court concludes that the Debtor took advantage of Ms. Russo's age. Even if he had mentioned to her in early 2003 that he had filed a bankruptcy petition because his business failed, the circumstance of any such disclosure would not have been adequate to fully apprise her that he personally filed bankruptcy. She could have assumed that he filed a bankruptcy petition on behalf of his business and that he intended to repay the personal loans she made to him, particularly because she received no official notice of his bankruptcy filing. Further, the alleged disclosure occurred at a time when she was worried about his health and well-being. Given his health at the time and her obvious concern about him, it would have been incumbent upon the Debtor to specifically advise his elderly aunt that she needed to engage legal counsel to protect her rights in the bankruptcy court. Given her age and the circumstances of the Debtor's illness, it is extremely unlikely that Ms. Russo would have had any idea of the ramifications of the Debtor's failure to list her as a creditor. Moreover, the Court finds that Ms. Russo's recollection of specific conversations and her characterization of the financial assistance she rendered to the Debtor to be both credible and consistent with the undisputed facts in this matter. The Debtor has waived any rights to challenge the amount of the debt or recharacterize it as a gift. The Debtor had three opportunities to discharge this debt or claim that it was disputed or a gift. First, when he filed his original schedules, second when he reopened the case and lastly when he moved to dismiss Ms. Russo's complaints. The Court will hold the Debtor to his own admissions and will not reward him for this protracted attempt to reap the benefits of the Bankruptcy Code while failing to adhere to its requirements.
Having discounted his gift defense, the Court is unable to determine why the Debtor initially failed to list Ms. Russo as a creditor. As Ms. McGovern testified, he may have intended to repay Ms. Russo once relieved of his business debts after discharge. The Court concludes, however, that his misrepresentations and misconduct are grounds for Ms. Russo's relief from the Order under Fed.R.Civ.P. 60(b), made applicable hereto by Fed.R.Bankr.P. 9024.
The Rule provides:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed.R.Civ.P. 60(b).
As noted above, the decision to reopen a case to afford relief to a debtor is within the discretion of the Court. This Court, in the exercise of its discretion, concludes that it should not have permitted the Debtor to reopen his bankruptcy case three years after receiving a discharge in an attempt to discharge an obligation to his aunt whom he admitted was generous to him and cared for him when he was ill. The Debtor's decisions in failing to list her as a creditor and in belatedly concocting a theory that she intended to give him monies for his business reflect an obvious attempt to manipulate the Bankruptcy Code to his advantage. Because this Court can and must weigh the circumstances of the individual case in accordance with the equitable nature of bankruptcy proceedings, the Court concludes the equities weigh against the Debtor. To repeat, the Court finds that the Debtor's testimony was contrived and that he took advantage of his aunt's good will to obtain monies and support without listing her as creditor in his original petition. When the opportunity to repay her from the sale of his house and his inheritance occurred, he sought to reopen his case to discharge his obligations to her. The Court will not condone that conduct.
IV. CONCLUSION
For the above stated reasons, the Court vacates the Order. The $82,000 debt owed to Ms. Russo by the Debtor and any judgments, liens or executions obtained by her in state court in connection therewith are not affected by the Debtor's bankruptcy discharge. She is entitled to an immediate distribution of the Escrow Fund, and she is also free to pursue whatever additional rights she may have against the Debtor based upon the debt, including any rights to seek attorneys' fees and costs in state court. The adversary proceeding commenced by Ms. Russo against the Debtor is dismissed as it is now moot, and the Court accordingly denies the Debtor's requests for attorneys' fees and for findings of violation of the discharge injunction under 11 U.S.C. § 524. A separate order shall enter.