Deghmane v. Tavitian (In re Tavitian)
| Decision Date | 19 June 2018 |
| Docket Number | Case No. 16-13829-JNF,Adv. P. No. 16-1191 |
| Parties | In re HAMAYAG S. TAVITIAN, Debtor KARIM DEGHMANE, Plaintiff v. HAMAYAG S. TAVITIAN, Defendant, Plaintiff in Counterclaim and Third Party Plaintiff v. KARIM J. DEGHMANE, Defendant in Counterclaim and CARLO CELLAI, Esq. and CELLAI LAW OFFICES, P.C. Third Party Defendants |
| Court | U.S. Bankruptcy Court — District of Massachusetts |
In re HAMAYAG S. TAVITIAN, Debtor
KARIM DEGHMANE, Plaintiff
v.
HAMAYAG S. TAVITIAN, Defendant, Plaintiff in Counterclaim and Third Party Plaintiff
v.
KARIM J. DEGHMANE, Defendant in Counterclaim
and
CARLO CELLAI, Esq. and CELLAI LAW OFFICES, P.C. Third Party Defendants
Case No. 16-13829-JNF
Adv. P. No. 16-1191
UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS
June 19, 2018
Chapter 7
MEMORANDUM
I. INTRODUCTION
The matters before the Court are Counts I, II, and III of the "Complaint to Determine Dischargeability" filed by the Plaintiff, Karim J. Deghmane (the "Plaintiff"), against Hamayag S. Tavitian (the "Defendant" or the "Debtor"). The Court previously dismissed Counts IV and V of the Plaintiff's Complaint, as well as the Defendant's
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Counterclaims against the Plaintiff and his Third Party Claims against the Plaintiff's attorney, Carlo Cellai, Esq., and the law firm of Cellai Law Offices, P.C.
The Court conducted a trial on April 10, 2018 with respect to the remaining counts of the Complaint pursuant to which the Plaintiff seeks to except a debt from discharge under 11 U.S.C. § 523(a)(2), (a)(4), and (a)(6) (Counts I-III). Through Count VI, the Plaintiff seeks damages under Mass. Gen. Laws ch. 93A. At the conclusion of the trial, the Court directed the parties to submit proposed findings of fact and conclusions of law by June 1, 2018. The Plaintiff complied with the Court's directive on May 10, 2018. The Defendant failed to submit proposed findings of fact and conclusions of law by the June 1, 2018 deadline.
Prior to the commencement of the Debtor's bankruptcy case on October 4, 2016, the Plaintiff obtained a default judgment from the Cambridge District Court Department of the Massachusetts Trial Court against the Defendant on October 26, 2012 in a civil action for damages for breach of contract, quantum meruit, Ch. 93A, conversion, and breach of the implied covenant of good faith and fair dealing.1 The debt the Plaintiff seeks to except from the Debtor's discharge in his bankruptcy case is that default judgment.
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At trial, the Plaintiff and the Defendant were the only witnesses to testify. The parties introduced a total of twelve exhibits into evidence. The issue presented is whether the Plaintiff sustained his burden of proof that the debt owed to him by the Defendant is excepted from discharge.
II. BACKGROUND2
The Debtor filed a voluntary Chapter 7 petition on October 4, 2016. He listed the Plaintiff as the holder of a nonpriority unsecured claim in the sum of $48,498.37 and nonpriority unsecured debts totaling $125,379.38. He listed his occupation as a driver for Lyft, Inc. In his Statement of Financial Affairs, he disclosed that he formerly was self-employed in a jewelry design business known as "Design by Hamo."
On January 11, 2017, the Chapter 7 trustee filed a Report of No Distribution. Approximately three months later, the order of discharge entered discharging the Debtor from all debts other than those excepted from discharge. The Plaintiff timely commenced the instant adversary proceeding seeking to except from the Debtor's discharge the amount of his state court default judgment. The Defendant failed to comply with discovery requests in the adversary proceeding, and, as noted above, failed to submit post-trial proposed findings of fact and conclusions of law.
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III. FACTS
The Plaintiff, a real estate developer, testified that he initially met the Defendant at a cigar shop on Mount Auburn Street in Watertown, Massachusetts that they both frequented. The Plaintiff stated that in the early fall of 2011 he gave a diamond to the Defendant to sell. The Plaintiff had acquired the diamond from a gemologist by the name of Stephanie A. Lyon and paid $13,660.50 for it. The receipt from the seller, dated September 21, 2005, reflects that the diamond was a princess cut, weighed 1.55 carats, and had a "VS2 clarity," an "E color," and a $20,000 replacement value.
According to the Plaintiff, the Defendant represented that he was a jeweler, that he made and sold jewelry, and that he worked with other jewelers in Boston, Massachusetts and environs. The Plaintiff testified that he informed the Defendant that he was prepared to sell the diamond for $8,000 and the Defendant agreed to sell it, assuring him that "he could move [the diamond] fairly quickly given the quality and the price that I was prepared to sell it for." Indeed, the Plaintiff stated that the Defendant told him that he could sell the diamond in a matter of days or weeks. The Plaintiff further testified that the Defendant's compensation for his sales efforts would be "whatever Mr. Tavitian was able to make beyond that $8,000."
The parties had no written agreement regarding the sale of the diamond in the early fall of 2011. After several weeks passed, however, the Plaintiff became apprehensive about the Defendant's failure to promptly sell the diamond and began calling the Defendant and sending him text messages. According to the Plaintiff, he did not know where the diamond was until late November, although the Defendant
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represented that "there was movement on the sale of the diamond and that I had no reason for concern." Nevertheless, the Plaintiff's concerns increased over time owing to "the abundance of excuses" proffered by the Defendant for his failure to sell the diamond and pay the Plaintiff.
On November 30, 2011, the Plaintiff advised the Defendant that he either wanted the diamond returned to him or $8,000 that very day, although he testified that he had learned by then that the diamond was in the possession of a jeweler in Worcester, Massachusetts who had mounted it in a ring setting. The Plaintiff texted the following demand to the Defendant: "My office tomorrow 12pm 188 newton street Brighton. $8K and I'm not taking a $1 less [sic]."
The parties did not meet on December 1, 2011. Eventually, on December 3, 2011, they met in the parking lot of the International House of Pancakes on Soldiers Field Road in Brighton, Massachusetts. At that time, the Plaintiff presented the Defendant with an "Agreement for Consignment," which according to the Plaintiff, the Defendant willingly and confidently signed. The Agreement, which the Plaintiff drafted, provided the following:
I, Karim J. Deghmane authorize and grant right to Hamo Tavitian of Hamo Jewelers or any other or future entity owned or ran by [sic] Hamo Tavitian to sell a loose VS2, E Clarity princess cut diamond (GIA Certification to be provided) to be placed under consignment for an agreed upon sale price of no less than $8000.00. The terms of the sales and consignment agreement are as follows:
-Hamo Tavitan [sic] agrees to have the agreed upon amount of $8000.00 to be paid in full by no later than midnight March 1, 2011 [sic]
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-A deposit of no less than $3000.00 is to be provided by no later than 11:59pm [sic] on December 31, 2011.
-Karim Deghmane grants Hamo Tavitian full autonomy in the sale of the diamond as he sees fit.
-Karim Deghmane will not question or request additional funds from Hamo Tavitian regardless of sales price or proceeds that Hamo Tavitian receives as a result of the sale of the diamond or any variation of [sic].
-Failure for [sic] Hamo Tavitian to either return the diamond in its original condition or violate the terms of this agreement will result in legal action against Hamo Taviatan [sic] and Karim Deghmane will seek the original purchase price of the diamond along with any damages and legal fees incurred in order to recoup any and all losses incurred. Furthermore, Failure [sic] for [sic] Hamo Tavitian to meet the conditions of the agreement and is unable [sic] to return the diamond in its original condition will result in criminal action taken against Hamo Tavitian.
-If the diamond is mounted it will be deemed to no longer be in original condition [sic]
Both parties agree that the information provided is sworn under the pains and penalties of perjury.
The Plaintiff testified that at the time he executed the Agreement he believed that the Defendant "had already sold the diamond and kept the money." He also indicated he had provided the Defendant with the GIA certification for the diamond.
On December 26, 2011 and December 29, 2011, the Plaintiff texted the Defendant about a meeting to obtain the $3,000 deposit. On December 29, 2011, the Defendant texted the Plaintiff that he would be at the Plaintiff's office at noon, stating "its definet" [sic]. The Defendant, however, did not show up to meet the Plaintiff on December 31, 2011. On January 2, 2012, the Plaintiff texted the Defendant the following: "It's Monday Hamo?" The Defendant responded to the text indicating that he would call the Plaintiff
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in an hour. In response, the Plaintiff texted: "If I'm not getting my money today Hamo don't bother calling." The Defendant then wrote the following: "Don't think I am avoiding u wait few days I call u soon little difficulty thanks" [sic].
The Plaintiff ultimately contacted the Watertown police and then filed an application for a criminal complaint in the Waltham District Court on February 21, 2012. According to the Plaintiff, the court's clerk magistrate scheduled a hearing on the application for a criminal complaint which the Defendant attended. Although an agreement was reached following the hearing pursuant to which the Defendant agreed to pay the Plaintiff the full amount owed, the Plaintiff testified that the Defendant never paid him any money before he commenced a civil action in the Cambridge District Court. Prior to filing a civil complaint in the Cambridge District Court, the Plaintiff caused a Ch. 93A demand letter to be sent to the Defendant, but received no response. The Court takes judicial notice that in his Complaint, the Plaintiff represented the following:
On July 18, 2012, the Plaintiff instituted a civil action, Docket Number 12-52CV-0533, in the Cambridge District Court seeking damages from the Debtor/Defendant under...
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