In re Moss

• Decision Date: 17 June 2020
• Docket Number: Adv. Pro. No.: 19-2191,Case No.: 12-38448
• Parties: Re: IN RE Alexander MOSS
• Court: U.S. Bankruptcy Court — District of New Jersey

618 B.R. 123

Re: IN RE Alexander MOSS

Case No.: 12-38448

Adv. Pro. No.: 19-2191

United States Bankruptcy Court, D. New Jersey.

Signed June 17, 2020

Edward Hanratty, Esq., 80 Court Street, Freehold, NJ 07728, Attorney for Alexander Moss, Plaintiff.

Michael G. Celli, Jr., Esq., 382 Morris Avenue, Long Branch, NJ 07740, Attorney for Township of Neptune, Defendant.

Michael B. Kaplan, United States Bankruptcy Judge

Counsel:

This matter comes before the Court on a motion (ECF No. 23) filed by Alexander Moss (the "Plaintiff") in the above-captioned adversary proceeding, seeking summary judgment in his favor as to the count in the complaint asserting a violation of the discharge order and requesting the Court enter an order assessing liability against defendant, the Township of Neptune ("Defendant"). Defendant responded by opposing the entirety of Plaintiff's motion and filing a cross motion (ECF No. 28) seeking summary judgment and dismissing the entirety of the adversary proceeding complaint, with prejudice.

The Court has reviewed all the submissions and has considered the arguments made during the hearing on June 2, 2020. For the reasons set forth below, Plaintiff's motion for summary judgment is GRANTED as to liability. Defendant's cross motion for summary judgment is DENIED. This Court shall schedule an evidentiary hearing to determine appropriate damages in favor of the Plaintiff.

I. Background

Plaintiff filed a voluntary petition for relief under chapter 13 of the United States Bankruptcy Code on December 4, 2012 (No. 12-38448). Neptune Township Municipal Court was listed as an unsecured nonpriority creditor on the petition and continued to receive notice of the then-pending bankruptcy matter. Plaintiff's former attorney filed a motion to rescind a driver's license suspension order entered by the Neptune Township Municipal Court for non-payment of pre-petition fines. In response to the motion, on February 27, 2013, this Court entered a self-executing order, voiding the prior license suspension order. Order Voiding Driver's License Suspension Order ... by Neptune Township, ECF No. 18, Case No. 12-38448. On November 29, 2016, Plaintiff received his chapter 13 discharge. The next day, Plaintiff's former counsel sent a letter to Defendant notifying it of Plaintiff's discharge and supplied a copy of the discharge order. Former counsel even went as far to educate Defendant as to a 1992 Memorandum to Municipal Court Judges from the New Jersey Administrative Office of Courts concerning a directive stating that courts must cease enforcement of pre-petition fines and suspensions in respect of any chapter 13 discharge. However, on February 7, 2017, former counsel was forced to contact Defendant because its computer system showed that Plaintiff still owed fines or penalties to Neptune Township, despite such fines and penalties being discharged in the chapter 13 case and Defendant having been placed on notice of Plaintiff's discharge.

The initial bankruptcy case was reopened on April 30, 2018, on Plaintiff's motion for violation of the automatic stay. A second order was entered on June 14, 2018, specifying that, "Neptune Twp Municipal Court is hereby in violation of the automatic stay and shall immediately take the necessary efforts to correct their records ... and be prohibited from sending any collection letters to the debtor threatening the suspension of debtor's driving privileges and registration of debtor's vehicle." Order Granting Motion for Violation of Automatic Stay Against Neptune Township 3, ECF No. 46, Case No. 12-38448.¹

In addition to the above case history, Plaintiff provided several recent notices from Defendant for this Court to review. On December 13, 2019 and December 27, 2019, Defendant issued notices alerting Plaintiff that he was in arrears on payments for violating N.J. STAT. ANN . § 39:3-4 (2013) for driving after his license was suspended or revoked, and that if he did not cure such arrears by early January, a warrant would be issued for his arrest and his driving privileges and vehicle registration would be suspended. These notices followed earlier notices, dated, October 3, 2019 and November 4, 2019, in which Plaintiff was advised that his hearing for violating N.J. STAT. ANN . § 39:3-4, which the offense occurred on April 2, 1992, was being rescheduled. Indeed, On June 19, 2019, Plaintiff had received another scheduling notice pertaining to the April 2, 1992 violation, as well as a second violation that had occurred on June 24, 2001 related to N.J. STAT. ANN . § 39:4-97.2.

This Adversary Proceeding was filed on October 21, 2019, seeking damages for "a violation of the bankruptcy code's discharge provisions, in that the debtor obtained a discharge of the relevant debt, and the creditor continues to act in a manner inconsistent with the debtor's rights under the code." Plaintiff's Complaint 2, ECF No. 1. On January 3, 2020, Plaintiff's current counsel sent a letter to Defendant concerning an outstanding arrest warrant and Plaintiff's lost wages, mental and emotional harm, and additional attorney fees, court costs and lost time from work due to Defendant's conduct. Defendant filed a cross motion opposing the entirety of Plaintiff's motion and seeking summary judgment to ultimately dismiss this adversary proceeding with prejudice ("Cross Motion").

Inexplicably, Defendant questions whether Plaintiff's motor vehicle fines were discharged in Plaintiff's chapter 13 bankruptcy.² "The only issue (STILL yet to be properly and adequately determined) is whether all of the outstanding fines and costs at issue were subject to discharge, and if so, whether they were actually discharged by the November 29, 2016 Order of Discharge." Defendant's Cross Motion 12, ECF No. 28. Yet, Defendant's suggestion that the fines and penalties are not related to motor vehicle charges is clearly without merit. Plaintiff provided copies of relevant notices from Defendant that specifically reference violations to Title 39, which unequivocally regulates motor vehicles and traffic.³

This Court has no reservations in determining that these fines were discharged in the underlying bankruptcy. This Court has taken judicial notice of the docket of the original chapter 13 bankruptcy petition dated December 4, 2012, and confirmed Neptune Township was included as an unsecured nonpriority creditor.⁴ Defendant was properly noticed of the petition filing and was subsequently advised of the entry of a discharge. As a result, the only remaining issues before the Court are whether Neptune Township violated the discharge order by continuing to notice Plaintiff for fines that were discharged in 2016, and whether Defendant has any defenses under either Sovereign Immunity or the New Jersey Tort Claims Act.

II. Summary Judgment Standard

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P . 56(a). As the Supreme Court has indicated, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action.’ " Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986) (citing FED. R. CIV. P . 1 ). "In deciding a motion for summary judgment, the judge's function is to determine if there is a genuine issue for trial." Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993).

The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. Huang v. BP Amoco Corp., 271 F.3d 560, 564 (3d Cir. 2001) (citing Celotex Corp., 477 U.S. at 323, 106 S. Ct. 2548 ). In determining whether a factual dispute warranting trial exists, the court must view the record evidence and the summary judgment submissions in the light most favorable to the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). Disputed material facts are those "that might affect the outcome of the suit under the governing law." Id. at 248, 106 S. Ct. 2505. A dispute is genuine when it is "triable," that is, when reasonable minds could disagree on the result. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted).

"Once the moving party establishes the absence of a genuine dispute of material fact, however, the burden shifts to the non-moving party to ‘do more than simply show that there is some metaphysical doubt as to the material facts.’ " In re Moran-Hernandez , 544 B.R. 796, 800 (Bankr. D.N.J. 2016) (quoting Matsushita, 475 U.S. at 586, 106 S. Ct. 1348 ). A party may not defeat a motion for summary judgment unless it sets forth specific facts, in a form that "would be admissible in evidence," establishing the existence of a genuine dispute of material fact for trial. FED. R. CIV. P . 56(e) (providing that in response to a summary judgment motion the "adverse party may not rest upon the mere allegations or denials of [its] pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine [dispute] for trial"); see also Fireman's Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) ; Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972). If the nonmoving party's evidence is a mere scintilla or is not "significantly probative," the court may grant summary judgment. Liberty Lobby, Inc. , 477 U.S. at 249–250, 106 S.Ct. 2505. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ " Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

III. Violation of the Discharge Order

Pursuant to 11...