Bowman v. Biletski (In re Lawrence Biletski SSN: XXX-Xx-4973)

• Decision Date: 04 April 2016
• Docket Number: BK Case No. 15-81967-CRJ-7,AP Case No. 15-80078-CRJ
• Parties: In the Matter of: Lawrence Biletski SSN: XXX-XX-4973 Debtor(s) Bill Bowman Plaintiff(s) v. Lawrence Biletski Defendant(s)
• Court: U.S. Bankruptcy Court — Northern District of Alabama

In the Matter of: Lawrence Biletski SSN: XXX-XX-4973 Debtor(s)Bill Bowman Plaintiff(s) v. Lawrence Biletski Defendant(s)

BK Case No. 15-81967-CRJ-7

AP Case No. 15-80078-CRJ

UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHERN DIVISION

April 4, 2016

Chapter 7

FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND ON SHOW CAUSE WHY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT BE DENIED FOR FAILURE TO TIMELY FILE THE MOTION

The Court having received and considered (a) the Plaintiff's Motion for Summary Judgment, Memorandum of Points and Authority in Support of Plaintiff's Motion for Summary Judgment with Exhibits, and Proposed Statement of Uncontroverted Facts and Conclusions of Law in Support of Motion for Summary Judgment; and (b) the Debtor/Defendant's Motion for Summary Judgment with Exhibits, finds that the Plaintiff's Motion for Summary Judgment should be denied; that the Defendant's Motion for Summary Judgment should be granted in part as to the Plaintiff's claims under 11 U.S.C. § 523 and 11 U.S.C. § 727(a)(4); and that the Defendant's Motion for Summary Judgment should be denied as to 11 U.S.C. § 727(a)(5).

The findings and conclusions set forth herein constitute the Court's Findings of Fact and Conclusions of Law pursuant to FED. R. BANKR. P. 7052. To the extent any of the following Findings of Fact constitute Conclusions of Law, they are adopted as such. Further, to the extent any of the Conclusions of Law set forth below constitute Findings of Fact, they are adopted as such.

FINDINGS OF FACT

1. Prior to filing this case, the Defendant sought relief under Chapter 7 of Title 11, United States Code, in the United States Bankruptcy Court for the Central District of California, case number 2:05-bk-21639-RN (the "California Bankruptcy Case").

2. In the California Bankruptcy Case, the Court found that: (a) the Plaintiff herein is the "Assignee of Record" of an Ex Parte Judgment and a Default Judgment (the "Assigned Judgments") against the Defendant; and (b) the Assigned Judgments were not listed or scheduled as claims in the California Bankruptcy Case, and therefore those debts were excepted from the Order of Discharge pursuant to 11 U.S.C. § 523(a)(3).

3. Since 2012 when the Plaintiff purchased the Assigned Judgments, he has vigorously pursued collection of the debts from the Defendant, and the Defendant has retained counsel to defend him in numerous proceedings in two states.

4. On July 23, 2015, the Defendant filed the present Chapter 7 case in the Northern District of Alabama, Northern Division. On Schedule D - Creditors Holding Secured Claims, the Defendant scheduled the Plaintiff as a secured creditor and listed the Assigned Judgments in the amounts of $59,993 and $97,786.

5. On September 30, 2015, the Plaintiff filed the above-styled Complaint in which he asserted three claims: (1) that the Assigned Judgments are nondischargeable in this case based on the finding of nondischargeability in the California Bankruptcy Case; (2) the Defendant's discharge should be denied under 11 U.S.C. § 727(a)(4)(A) for false oaths; and (3) the Defendant's discharge should be denied under 11 U.S.C. § 727(a)(5) for the unexplained loss of assets.

6. Prepetition, the Plaintiff filed an action in the Circuit Court of Madison County, Alabama against the Defendant alleging the Defendant transferred his ownership interest in his Alabama residence and an adjacent 800 square foot lot to his wife with intent to defraud the Plaintiff in violation of the Alabama Uniform Fraudulent Transfer Act, ALA. CODE 1975 § 8-9A-1 (the "AUFTA Case"). The Defendant transferred his one-halfinterest in the residence to his wife in May of 2013 in exchange for $7,500 more than two years before filing the present case. In the Defendant's Amended Statement of Financial Affairs filed on November 30, 2015, the Defendant listed the additional transfer on February 14, 2014 of an "800 square foot strip of lot adjacent to residence to wife based on builder's mistake." ECF 43.

7. The Plaintiff alleges that in giving responses to interrogatories in the AUFTA Case, the Defendant stated that as of April 10, 2015 his retirement funds had "decreased to $41,500." The Plaintiff alleges the Defendant has failed to explain the loss of the retirement assets disclosed in response to the interrogatories in the AUFTA Case because the Defendant did not list any retirement assets on Schedule B - Personal Property when he filed this case on July 23, 2015.

8. In connection with discovery in the AUFTA Case, the Plaintiff proposed the following Interrogatory No. 5, "Other than employment, list the sources and amounts of all income you have received from any source, from January 1, 2012, to present, on a month-to-month basis." The Defendant responded:

Boeing Pension cash out: $25,350.00

BCF 401K cash out: $16,190.00

9. In support of his Motion for Summary Judgment, the Defendant filed an Affidavit in which he admits that he cashed out his 401(k) when his contract ended with BFC Solutions in October of 2014 and then cashed out his pension with Boeing in December of 2014. The Defendant avers that he cashed out the accounts to "help pay for the substantial attorneys' fees" he incurred in responding to the numerous pleadings filed by the Plaintiff.

10. On November 30, 2015, the Defendant filed Amended Schedules in this case. On Amended Schedule F - Creditors Holding Unsecured Nonpriority Claim, the Defendant listed two California attorneys as unsecured creditors: (1) Darren Gordon Smith in the amount of $28,000; and (2) David A. Tilem in the amount of $52,000. On his Amended Statement of Financial Affairs, the Defendant disclosed that within the 90 days immediately preceding the petition date, on May 5, 2015, he made a payment in the amount of $2,000 to David A. Tilem. The Defendant has not submitted any additionalevidence of documentation to support his allegation that he used his retirement funds to pay legal fees.

11. Finally, the Plaintiff asserts the Defendant made various false oaths in connection with the California Bankruptcy case and the AUFTA Case. The Plaintiff does not assert any allegations of false oath made by the Defendant in this bankruptcy case.

PROCEDURAL HISTORY

1. On November 25, 2015, this Court entered a Scheduling and Trial Order requiring the parties to file Motions for Summary Judgment with supporting affidavits on or before Thursday, February 25, 2016.

2. Five days after the deadline expired, on Tuesday, March 1, 2016, the Plaintiff filed his Motion for Summary Judgment, Memorandum of Points and Authority in Support of Plaintiff's Motion for Summary Judgment with Exhibits, and Proposed Statement of Uncontroverted Facts and Conclusions of Law in Support of Motion for Summary Judgment.

3. On March 2, 2016, the Court entered an Order to Show Cause Why Plaintiff's Motion for Summary Judgment Should not be Denied for Failure to Timely File the Motion, and directed the Plaintiff to appear telephonically on March 15, 2016 at 1:30 p.m., CDT, and show cause why the Motion should not be denied as being untimely.

4. On March 15, 2016, the Adversary Proceeding came before the Court for hearing on Telephonic Status Conference and the Order to Show Cause. The Plaintiff failed to appear for the hearing or file an Answer to the Order to Show Cause. Adam Dauro, Counsel for Defendant, appeared telephonically for the hearing. At the conclusion of the hearing, the Court took the Motions for Summary Judgment under advisement.

5. On March 15, 2016, the Court entered an Order Vacating Trial, and now issues this Order granting partial summary judgment in favor of the Defendant. By separate Order, the Court will reschedule the remaining issues under § 727(a)(5) for trial.

STANDARD OF REVIEW

1. Pursuant to FED. R. CIV. P. 56 as made applicable to Adversary Proceedings pursuant to FED. BANKR. R. P. 9014 and 7056, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); See alsoAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d 1179 (11th Cir. 2002).

2. The moving party bears the initial burden of showing that there is no genuine issue of material fact to be decided at trial. Celotex Corp., 477 U.S. at 323. When the moving party has satisfied its burden, the non-moving party cannot rest upon the pleadings. Instead, the non-moving party must go beyond the pleadings and demonstrate by affidavit or other appropriate means that there is a genuine issue of material fact for trial. Id. at 324. In determining whether there is a genuine issue of material fact, the evidence and all factual inferences must be viewed by the Court in the light most favorable to the party opposing summary judgment, and all reasonable doubts about the facts must be resolved in favor of the non-moving party. Acevedo v. First Union Nat. Bank, 476 F.3d 861, 865 (11th Cir. 2007); Andreini & Co. v. Pony Express Delivery Servs., Inc. (In re Pony Express Delivery Servs., Inc.), 440 F.3d 1296, 1300 (11th Cir. 2006).

3. "Cross-motions for summary judgment 'must be considered separately,' and 'each movant bears the burden of establishing that no genuine issue of material fact exits and that it is entitled to judgment as a matter of law.'" Sibille v. Davis, 2016 WL 1178662 (M.D. Ala. 2016); Noreen Wiscovitch-Rentas v. Villa Blanca VB Plaza, LLC (In re PMC Marketing Corp.), 543 B.R. 345 (B.A.P. 1st Cir. 2016); Avocent Huntsville Corp.v. ClearCube Tech., Inc., 443 F.Supp.2d 1284, 1293 (N.D. Ala. 2006)("The court must rule on each party's motion on an individual and separate basis,

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