Carmona v. Carmona (In re Carmona)

• Decision Date: 19 January 2018
• Docket Number: ADVERSARY NO. 16–5003,CASE NO: 16–50155, ADVERSARY NO. 16–5008
• Citation: 580 B.R. 690
• Parties: IN RE: Hector Ricardo CARMONA; aka Carmona Millan, Debtor Hector Ricardo Carmona, Plaintiff v. Maria Eugenia Carmona, Defendant Maria Eugenia Rosales, Plaintiff v. Hector Ricardo Carmona, Defendant
• Court: U.S. Bankruptcy Court — Southern District of Texas

580 B.R. 690

IN RE: Hector Ricardo CARMONA; aka Carmona Millan, Debtor

Hector Ricardo Carmona, Plaintiff

v.Maria Eugenia Carmona, Defendant

Maria Eugenia Rosales, Plaintiff

v.Hector Ricardo Carmona, Defendant

CASE NO: 16–50155

ADVERSARY NO. 16–5003

ADVERSARY NO. 16–5008

United States Bankruptcy Court, S.D. Texas, Laredo Division.

Signed January 19, 2018

Carl Michael Barto, Law Office of Carl M. Barto, Adolfo Campero, Jr., Campero & Associates, P.C., Laredo, TX, Leslie M. Luttrell, Luttrell + Carmody Law Group, San Antonio, TX, for Plaintiff/Defendant.

MEMORANDUM OPINION GRANTING MARIA EUGENIA ROSALES' MOTION FOR NON–RECOGNITION OF FOREIGN COUNTRY JUDGEMENTS & RELATED MATTERS

Resolving ECF Nos. 46, 104, 121 & 131

Eduardo V. Rodriguez, United States Bankruptcy Judge

I. INTRODUCTION

"Divorce is a declaration of independence with only two signers."¹ True independence in this particular case has been elusive thus far. The story of the case sub judice began in March 2012, when Maria Eugenia Rosales ("MER ") filed for divorce from her husband Hector Ricardo Carmona ("HRC ") (jointly the "Parties ") in Laredo, Texas, which is located in Webb County. Although the Parties entered into a mediated settlement agreement—which ultimately served as a basis for the entry of a Final Decree of Divorce—a flurry of litigation, initiated by HRC, ensued in the United States of Mexico resulting in multiple foreign judgments being entered against MER. This Court is now tasked with deciding a matter of first impression: to wit, whether to grant MER's Motion for Non–Recognition of Foreign Country Judgments ("Motion for Non–Recognition ").

II. FINDINGS OF FACT

This Court makes the following findings of fact and conclusions of law pursuant to Fed. R. Bankr. P. 7052, which incorporates Fed. R. Civ. P. 52, and 9014. Any finding of fact more properly considered a conclusion of law, or any conclusion of law more properly considered a finding of fact, should be so considered.

The facts and documents in this case are not only voluminous, they are contentious. Here, the Court lays out the pertinent facts to determining the Motion for Non–Recognition as succinctly as possible. The matter now before this Court commenced in 1991 when MER sold real property in Guanajuato, Mexico or the "San Antonio Calichar Lot" ("SA Calichar Lot ") without HRC's permission. See ECF No. 46 at 2; ECF No. 189—Ex.² A–21 at 4–5 (stating that the SA Calichar Lot was purchased during the marriage by HRC and MER and was community property); ECF No. 189—Ex. C at 8 (noting that MER sold the SA Calichar Lot without HRC's authorization).

On March 7, 2012, MER filed a Petition for Divorce, styled as Cause No. 2012CVG000327 D1 In the Matter of the marriage of Maria Carmona and Hector R. Carmona Millan ("IMMO Carmona or Divorce Proceeding "), in the District Court, 49^th Judicial District, Webb County, Texas. ECF No. 189—Ex. A; ECF No. 189—Ex. A–1; ECF No. 187–2. On March 23, 2012, HRC filed his Original Answer and Counter–Petition for Divorce, which was subsequently amended. ECF No. 189—Ex. A–1; ECF No. 187–3. In his Counter–Petition for Divorce, HRC alleged, inter alia , that MER sold and transferred community assets to third parties without his consent or knowledge and committed fraud on the community. ECF No. 187–3.

On July 12, 2012, and in response to interrogatories propounded to him during the Divorce Proceeding, HRC stated that MER committed fraud "in the selling of a LOT, in San Antonio Calichar in 1991, without my acknowledge [sic] and consent, $100,000.00."³ ECF No. 189—Ex. A–22 at 17. On October 18, 2013, MER testified in an oral deposition in which she admitted to selling the SA Calichar Lot in 1991 without HRC's consent. ECF No. 189—Ex. B at 6. On November 4, 2013, HRC filed his Second Amended Inventory & Appraisement, which included the SA Calichar Lot and a notation that it was owned by MER and it had been sold without HRC's authorization. ECF No. 189—Ex. C.

On November 5, 2013, the Parties entered into a Mediated Settlement Agreement ("MSA ") in which mediation was conducted by the Honorable Raul Vasquez ("Vasquez "). ECF No. 189—Ex. A–1 at 69. The MSA declares that HRC and MER "intend to be contractually bound by the ... terms and conditions." Id. Included in the MSA is the following recitation:

This settlement agreement, however, is intended to be binding and enforceable upon the parties immediately and agree that the formal documents and final orders of the court will not change the material and essential terms of this agreement. Furthermore, the parties agree that any conflict shall be resolved by the Mediator, Judge Raul Vasquez, and that such resolution by the mediator of such conflict shall be final and binding on the parties.

TERMS OF SETTLEMENT:

Petitioner [MER] and Respondent [HRC] hereby agree to settle all claims and controversies between them in this lawsuit.

Id. The MSA, however, did not specifically mention the SA Calichar Lot. See id.

On February 4, 2014, MER filed a Notice of Filing Settlement Agreement. ECF No. 187–6. Thereafter and on February 14, 2014, MER filed a Motion to Enforce the MSA, Motion to Modify Temporary Orders, Motion for Sanctions, and Motion for Trial ("Motion to Enforce "). ECF No. 187–7. The Motion to Enforce alleged that HRC failed to perform his duties under the MSA and requested that the state court enforce the MSA. Id. On March 17, 2014, MER filed an Application for Injunctive Relief, Supplemental Motion to Modify Temporary Orders, and Second Motion for Sanctions in State Court where MER again sought the assistance of the state court in enforcing the terms of the MSA. ECF No. 187–9.

On April 17, 2014, a Final Decree of Divorce ("Final Decree ") was entered, which, inter alia , divided up the assets and liabilities between the Parties. ECF No. 187–11. Notably, the Final Decree provided, inter alia , that:

[HRC] shall pay to [MER] the total amount of $1.85 million with $1.0 million within 60 days of the signing of the decree and the balance of $850,000.00 upon the sale of the Michelson residence, which must be put up for sale immediately, but no later than two years after the decree is signed.

Id. at 16.

The Final Decree also approved the MSA. ECF No. 187–11 ("The Court approves the agreement which settles all claims and controversies between the parties in this lawsuit ... and orders the parties to do all things necessary to effectuate the agreement.") (emphasis added). Further, the Final Decree ordered:

that all relief requested in this case and not expressly granted is denied except that any community property or community debt that is not divided or awarded to the parties herein shall remain undivided and belonging to the community estate for future fair and equitable distribution by this Court. This is a final appealable judgment, for which let execution and all writs and process necessary to enforce this judgment issue.

Id. Soon thereafter and on April 25, 2014 MER filed a Petition for Enforcement and Application for Injunctive Relief contending, inter alia , that HRC violated the MSA and Final Decree by filing a "civil suit in Mexico complaining of a 1991 sale of real property" by MER. ECF No. 187–12.

On May 9, 2014, HRC filed a Motion for New Trial and a Motion to Reconsider, which were both denied on May 14, 2014. ECF Nos. 187–13, 187–14, 187–16, 187–17. Additionally, on May 13, 2014, HRC filed a Motion to Set Aside Mediated Settlement Agreement, which alleged that HRC "was fraudulently induced into entering because [c]ounsel for [MER] has pleadings on file requesting injunctive relief for an action that [MER] and her counsel agreed to [sic]occur in the future during mediation." ECF No. 187–15.

On May 27, 2014, HRC filed his Notice of Appeal of the Final Decree. ECF No. 187–20. Additionally, on August 4, 2014, HRC filed a civil complaint in Nuevo Laredo, Tamaulipas, Mexico ("Nuevo Laredo ") seeking, inter alia , a declaration that MER unlawfully sold the SA Calichar Lot. ECF No. 189—Ex. A–6. Thereafter, on August 13, 2014, the appeal of the Final Decree was dismissed at HRC's request. ECF No. 187–24; ECF No. 187–28.

On March 19, 2015, MER appealed a judgment, discussed infra , issued in Nuevo Laredo against her and in favor of HRC. ECF No. 189—Ex. A–11 ("Appeal "). On March 26, 2015, HRC filed a Motion to Nullify Signature in Nuevo Laredo, arguing that MER's signature on the Appeal was a forgery, which was confirmed by HRC's designated handwriting expert, Alejandro Rene Cancino Romay. ECF No. 189—Ex. A–12; ECF No. 189—Ex. A–15. Although MER attempted to have that finding vacated and have her own expert designated, the Mexican court ultimately sided with HRC. Compare ECF No. 189—Ex. A–13 with ECF No. 189—Ex. A at 8. On April 12, 2016, MER filed an application for injunction ("MER's Injunction ") seeking a stay of the various judgments against her in Nuevo Laredo. ECF No. 55–2 at 2.

On July 21, 2016, HRC filed for bankruptcy under chapter 11 of title 11 of the United States Bankruptcy Code.⁴ Bankr. ECF No. 1.⁵ HRC lists the property at 2518 Mickelson Court, Laredo, Texas 78045 as his homestead. Bankr. ECF No. 112 at 3. Additionally, HRC listed MER as a creditor on Schedule E/F holding a contingent and disputed claim in the amount of $850,000.00 with the notations (i) "[p]er divorce decree with [HRC] as part of division of property[; (ii) u]pon the sale of 2518 Mickelson residence. Debtor's ex-wife." Bankr. ECF No. 9 at 21. HRC amended his Schedules and continued to list MER's $850,000.00 claim with the notation "Monetary Component of the division of property pursuant to divorce decree." Bankr. ECF No. 112 at 24.

On July 22, 2016, HRC removed IMMO Carmona—in which several matters are pending⁶ —to this Court for setoff of a judgment recovered by HRC against MER of a debt owed by HRC to MER under 11 U.S.C. §§ 553, 558.⁷ ECF Nos. 1, 24. On October 13, 2016, the Nuevo Laredo Court denied MER's Injunction. ECF No. 55–2 at 3. On December 27, 2016,...