In re Ibrahim
| Decision Date | 27 February 2018 |
| Docket Number | Case No. 16-13549-JNF |
| Parties | In re ANWAR M. IBRAHIM, Debtor |
| Court | U.S. Bankruptcy Court — District of Massachusetts |
The contested matter before the Court for determination is the Motion filed by the Debtor, Anwar M. Ibrahim (the "Debtor"), for Damages for Violation of the Automatic Stay.1 Shortly after filing his original motion pro se, the Debtor engaged counsel, who then filed a "Motion for Leave to Supplement Motion for Sanctions for Violation of the Automatic Stay" (the "Stay Violation Motion") with respect to real property located at 263 Pearl Street, Malden Massachusetts which the Debtor listed on Schedule A/B: Property (the "Property'). In the Stay Violation Motion, the Debtor averred that Goshen Mortgage REO, LLC ("Goshen") willfully violated the automatic stay by continuing, after the commencement of this case on September 14, 2016, with a post-foreclosure eviction action that it had commenced prepetition against the Debtor and his adult children on June 20, 2016 in Malden District Court, Department of the Massachusetts Trial Court (the "Fourth Eviction Action"). According to the Debtor, numerous "Status Review" hearings held by the Malden District Court after the filing of his Chapter 13 petition were willful violations of the automatic stay by Goshen that caused him actual damages. The Debtor seeks compensation for both his attorneys' fees and for emotional distress, as well as punitive damages, under 11 U.S.C. § 362(k).
Goshen filed an opposition to the Stay Violation Motion in which it denied any violation of the automatic stay, and further contended that it did not seek judgment against the Debtor postpetition. It maintained that the scheduling of the numerous postpetition status conferences in the Malden District Court was due to the presence of other defendants, namely, the Debtor's adult children, as well as issues regarding the pendency and effect of the Debtor's bankruptcy case.
On May 3, 2017, this Court determined the Stay Violation Motion and Goshen's Opposition constituted a contested matter and that, pursuant to Fed. R. Bankr. P. 9014(c), Part VII of the Federal Rules of Bankruptcy Procedure governing adversary proceedings applied. The Court also entered a Scheduling Order setting discovery and other deadlines. On May 8, 2017, the Court scheduled an evidentiary hearing for November 14, 2017 to determine the merits of the Stay Violation Motion. The parties, however, did not comply with the Scheduling Order. Moreover, counsel to the Debtor sought a continuance of the trial which the Court granted. Goshen then filed a "Motion for Reconsideration of Trial Continuance and Further Request for Relief," as well as a "Motion for Entry onto Premises for Limited Purpose of Servicing Heating System."
On November 9, 2017, the Court held a hearing to consider the outstanding motions filed by the parties. The Court scheduled the evidentiary hearing on the Stay Violation Motion for December 12, 2017 and determined that the only issues were whether the automatic stay was violated, and if so, the extent of the Debtor's damages. The Court also granted Goshen's Motion for Entry onto Premises with conditions.
This Court conducted an evidentiary hearing in this contested matter on December 12, 2017 at which three witnesses testified: the Debtor, a constable who served an eviction execution on the Debtor in 2010, and Attorney Daniel Murphy, who represented JPMorgan Chase Bank, National Association ("JPMorgan Chase") in an eviction action in which the Debtor was a named defendant. The Debtor introduced into evidence a single exhibit; Goshen introduced into evidence 18 exhibits. Based upon the evidence adduced at trial, the Court now makes the following findings of fact and conclusions of law in accordance with Fed. R. Bankr. P. 7052.
The Debtor filed a Chapter 13 petition on September 14, 2016. On the petition he listed his residential address as 263 Pearl Street, Malden, Massachusetts. He listed his first name as Anwar and his last name as Ibrahim, although at the trial, the Debtor indicated that his first name is Ibrahim and his last name is Anwar and requested that he be called "Mr. Anwar."
On October 21, 2016, the Debtor filed his Schedules and Statement of Financial Affairs and other bankruptcy documents.2 He signed his petition, "Declaration About an Individual Debtor's Schedules," and Statement of Financial Affairs under the penalty of perjury. As noted above, on Schedule A/B: Property, the Debtor listed an ownership interest in the entire Property with a current value of $500,000.00. He did not disclose that the Property was a condominium or that there were two units in the building. On Schedule A/B, the Debtor, in response to question 33 regarding whether he had any claims against any third parties, answered "No." On Schedule C: The Property You Claim as Exempt, the Debtor claimed the entire Property as exempt to the extent of $500,000.00 pursuant to the Massachusetts homestead statute, Mass. Gen. Laws c. 188 §§ 1, 3.
On Schedule D: Creditors Who Have Claims Secured by Property, the Debtor listed Goshen as the holder of a claim secured by the Property. In Column A, he listed the amount of the claim at $0.00, in Column B, he listed the value of the collateral supporting the claim at $500,000.00, and, in Column C, he listed the unsecured portion of the claim at $0.00. He also checked the box indicating that the secured claim was disputed. He did not describe the nature of the lien and failed to check any of the boxes containing descriptions of liens. He represented that that he was the only debtor owing the debt.
On Schedule D, the Debtor also listed a secured claim held by Guidance Residential, LLC ("Guidance") in the amount of $600,000.00 secured by the Property. He listed the value of the collateral at $500,000.00, indicating that the unsecured portion of the claim was $100,000.00. He further represented that he owed that debt with a nondebtor, that the claim was disputed, and that the nature of the lien was both an agreement and a first mortgage. On Schedule H: Your Codebtors, the Debtor listed 2004-0000446, LLC as a codebtor with respect to the Guidance mortgage.
In Schedule I: Your Income, the Debtor represented that he was not employed and earned no monthly wages, salary or commissions; he listed a single source of monthly income from "Family support payments that you, a non-filing spouse, or a dependent regularly receive," in the amount of $2,500.00; on Schedule J: Your Expenses, he indicated that he had no expenses relating to "rental or home ownership expenses for your residence," although he listed $100.00 for "property, homeowner's, or renter's insurance: and $200.00 for "Homeowner's association or condominium dues." His other expenses for himself and his two teenage dependents3 related to "electricity, heat, natural gas" ($200.00), water, sewer, garbage collection ($100.00), as well as expenses for telephones, food, clothing, transportation, and the like. The Debtor's expenses totaled $2,275.00. The Debtor did not disclose any income from employment for his spouse on Schedule I, although as noted below, he indicated that he was married; he did not list his spouse as a dependent on Schedule J.
In response to questions on the Statement of Financial Affairs ("SOFA"), the Debtor responded that he is married, and had lived in his current residence during the past three years. In Part 4 of his SOFA, in response to question 9, the Debtor stated that he was a party to a lawsuit within one year prior to the commencement of his bankruptcy case, referencing a pending "Postforeclosure [sic] Eviction" action brought by Goshen in the Malden District Court, adding the following:
Related court dates include October 25 (motion hearing for possession as to debtor's children) and November (post-foreclosure eviction of debtor) Dates set purant [sic] to creditor's representation that automatic stay not applicable [sic].4
In Part 7 of his SOFA, in response to Question 19, relating to transfers of property within 10 years before the commencement of his bankruptcy case to a self settled trust or similar device, the Debtor answered "yes." He identified the transferee as the 263 Pearl Street Condominium Trust, the date of the transfer as October 7, 2008, and described the property transferred and its value as follows:
In Part 9 of his SOFA in response to question 23, relating to "Property You Hold or Control for Someone Else," the Debtor indicated that he held a "television, computer, exercise bicycle - left by former tenant" and that the property was owned by Abdelkader Orizzi, whose address he listed as 263 Pearl Street, Malden, MA 02148 - - the same address as the Debtor's residence.
The Debtor filed a Chapter 13 Plan on October 21, 2016. He proposed to pay the trustee $249 per month over 36 months. He did not propose to treat or pay any secured claims in his plan; he proposed to pay a five percent dividend to holders of unsecured claims, which totaled $21,205.50. In addition to moving to dismiss the Debtor's Chapter 13 case, the Chapter 13 Trustee objected to confirmation of the Debtor's plan, asserting that 1) the plan failed to treat the mortgage claims listed on Schedule D, and 2) the Debtor had not submitted evidence of the value of his Property, which also was the subject of the Chapter 13 Trustee's objection to the Debtor's claimed homestead exemption. In her objection to the Debtor's claimed homestead exemption, the Trustee maintained that the Debtor was not an owner of the Property for the purposes of Mass. Gen. Laws ch. 188, § 1 because the Property had been foreclosed...
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