In re Briglevich
| Decision Date | 08 October 1992 |
| Docket Number | Adv. No. 90-0711.,Bankruptcy No. A85-00514 |
| Citation | 147 BR 1015 |
| Parties | In re Joseph Michael BRIGLEVICH, Debtor. Paul H. ANDERSON, Jr., Trustee, Plaintiff, v. Joseph Michael BRIGLEVICH, Rose Briglevich, Ana Vlahinich, George Briglevich, John Briglevich, and Steve Briglevich, Defendants. |
| Court | U.S. Bankruptcy Court — Northern District of Georgia |
John Howard, Fortson & White, Atlanta, GA, for plaintiff.
William L. Rothschild, Branch, Pike, Ganz & O'Callaghan, Atlanta, GA, for defendants other than Joseph Michael Briglevich.
This adversary proceeding is before the Court on two motions for summary judgment. One of the defendants, Dr. Rose Briglevich, has filed a motion for partial summary judgment, and the plaintiff Chapter 7 Trustee has filed a motion for summary judgment as to all of plaintiff's claims.
In this adversary proceeding, plaintiff seeks to void and set aside transfers by the debtor of three parcels of real estate. All of the transfers at issue took place after the commencement of debtor's Chapter 11 case, without authorization of the bankruptcy court, and without notice to creditors.
There are six named defendants. Defendant Joseph Michael Briglevich is the debtor. At the time debtor filed this bankruptcy case, debtor was married to defendant Rose Briglevich. Defendant Ana Vlahinich is Rose Briglevich's mother, and defendants George, John and Steve Briglevich are the children of debtor and defendant Rose Briglevich.
The three parcels of real property are as follows: (1) the marital residence of Joseph and Rose Briglevich at 4002 Ridge Road, Smyrna, Cobb County, Georgia, referred to as the "Home"; (2) a ¾ acre parcel on McClatchey Circle, Peachtree Manor Heights, Atlanta, Fulton County, Georgia, referred to as the "Fulton County Property"; and (3) a 2.98 acre parcel on Coverbridge Road, Smyrna, Cobb County, Georgia, referred to as the "Coverbridge Property."
Defendant Rose Briglevich's motion for partial summary judgment seeks a dismissal of plaintiff's claim to set aside debtor's transfer to her of debtor's interest in the Home. Plaintiff seeks a summary judgment setting aside debtor's transfers of all three properties and a money judgment against defendant Rose Briglevich to satisfy all encumbrances which she has placed on the Home or the Fulton County Property. Plaintiff also seeks to recover attorneys fees from defendant Rose Briglevich.
The material facts are not in dispute. When debtor filed bankruptcy on February 1, 1985, debtor was identified in the appropriate county land records as the sole owner of record of all three properties. Debtor listed all three properties as assets of the estate. Debtor included language in his bankruptcy schedules that he considered his wife to have an equitable interest in these properties. However, it is undisputed that record title to all these properties was in debtor's name alone and that each of the three properties was acquired in debtor's name. The Home was acquired in the name of Joseph Briglevich on July 19, 1976. The Fulton County Property was acquired in the name of Joseph Briglevich on November 30, 1973. The Coverbridge Property was acquired in the name of Joseph Briglevich on October 12, 1977.
Defendant Rose Briglevich filed a complaint for divorce against debtor Joseph Briglevich in the Superior Court of Cobb County on March 5, 1987. Debtor did not answer the complaint for divorce and did not make any appearance in the divorce proceedings or contest in any way the final judgment and decree of divorce which was entered on August 11, 1987. Defendant Rose Briglevich did not seek or obtain relief from the automatic stay under 11 U.S.C. § 362(a) to allow the state court to engage in the division or distribution of debtor's property.
The divorce decree awarded Rose Briglevich, among other things, full fee simple title and possession in the Home and the Fulton County Property. The divorce decree awarded debtor full fee simple title and possession to the Coverbridge Property.
The divorce decree at ¶ 28 provided as follows:
Plaintiff/ROSE BRIGLEVICH and Defendant/JOSEPH BRIGLEVICH, are hereby ORDERED and DIRECTED from time to time, at the request of the other party, to execute, acknowledge and deliver to such other party any and all additional instruments, documents and the like that may be required to give full force and effect to the provisions of this Final Judgment And Decree Of Divorce. If either party shall fail to comply with the provisions of this paragraph, this Final Judgment And Decree Of Divorce shall constitute an actual grant, assignment and conveyance of property and the rights in such manner, and with such force and effect as shall be necessary to effectuate the terms of this Final Judgment And Decree of Divorce.
The divorce decree was recorded in the Cobb County land records on October 27, 1988. Defendant Rose Briglevich's counsel prepared quitclaim deeds for debtor's signature transferring all of debtor's interest in the Home and the Fulton County Property to Rose Briglevich. Both quitclaim deeds are dated August 29, 1988. The quitclaim deed on the Home was not recorded in the Cobb County land records until November 3, 1989. The quitclaim deed on the Fulton County Property was not recorded in the Fulton County land records until November 13, 1989.
Debtor also executed a quitclaim deed transferring all of his interest in the Coverbridge Property to defendant Ana Vlahinich, his mother-in-law, and to his three sons, defendants George, John and Steve Briglevich. The quitclaim deed is dated August 29, 1988, but was not recorded until November 3, 1989.
Defendant Rose Briglevich never sought or obtained relief from the automatic stay in order to allow the state court to divide debtor's property. Debtor gave no notice of his divorce, the purported property division contained in the divorce decree, or any of the quitclaim deeds identified above to the bankruptcy court or to his creditors. Neither debtor nor any of the other defendants ever sought court approval of the transfer of debtor's interest in the three parcels of property. Neither debtor nor his counsel ever filed notice of the bankruptcy filing in the land records of Fulton County or Cobb County.
The instant complaint was filed on December 6, 1990 by creditors Klaus and Brigette Rees, very shortly after they learned of the transfers of debtor's property.1 The Court appointed a Chapter 11 trustee on January 23, 1991. The trustee gave a prompt report of his investigation and filed a motion to convert the case to a case under Chapter 7 on February 8, 1991. The case was converted to a case under Chapter 7 on April 12, 1991, and the trustee was substituted as the plaintiff in this adversary proceeding on August 9, 1991.
The parties dispute some facts, but the disputed facts are not material or relevant to the key issues which can be decided on summary judgment. Defendant Rose Briglevich contends that she paid for all three of these properties. She contends that she openly and continuously occupied the Home to the exclusion of debtor after September 20, 1986, that debtor moved out of the Home in 1985 and that debtor lived with another woman at another address from April, 1987 until July, 1991. Defendant Rose Briglevich contends that she "permitted" Joseph Briglevich to retain the Coverbridge Property in the divorce decree, because she understood that he would deed the Coverbridge Property directly to the sons and to her mother, Mrs. Vlahinich. Defendant Rose Briglevich also contends that her sons built the bridge on the Coverbridge Property. Plaintiff disputes all of these contentions.
The parties also sharply dispute whether defendants had knowledge of debtor's bankruptcy at the time of these unauthorized transfers. Defendant Rose Briglevich contends that neither she nor her mother or her sons had any knowledge that the bankruptcy case had been filed. Plaintiff contends that defendant Rose Briglevich was well aware of the bankruptcy. Plaintiff contends that defendant Rose Briglevich signed and received letters relating to the bankruptcy proceeding, that she even testified in the United States Bankruptcy Court in 1986, and that she met with debtor's counsel to discuss the bankruptcy proceeding.
Defendant Rose Briglevich argues that plaintiff's action to set aside the conveyance of the Home is barred by the statute of limitations provision in 11 U.S.C. § 549(d) which provides, in pertinent part, that an action to set aside a post-petition transfer of property of the estate must be commenced within two years after the date of the transfer. Defendant Rose Briglevich argues that the Home was transferred when the divorce decree was signed in August of 1987 and/or when defendant Rose Briglevich occupied the Home to the exclusion of debtor in 1986 and that the claim asserted in December of 1990 comes too late.
There are several difficulties with defendant Rose Briglevich's motion. First and foremost, the motion fails to address the effect of the automatic stay on the portions of the divorce decree that distribute property of the debtor or direct that debtor's property be transferred to his wife. Those portions are null and void.
The automatic stay provision of the Bankruptcy Code provides a list of actions that are stayed by the filing of a petition for relief. Section 362(a) provides, in pertinent part, as follows:
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