In re Muzquiz, Bankruptcy No. 82-01953-H3-6

• Decision Date: 01 June 1990
• Docket Number: Adv. No. 83-2597-H3.,Bankruptcy No. 82-01953-H3-6
• Citation: 122 BR 56
• Parties: In re Moses MUZQUIZ, Jr., Debtor. W. Steve SMITH, Trustee, Plaintiff, v. George WEISSFISCH, Individually and as Trustee, Pasadena Internal Medicine and Cardiology Clinic, Inc., Bob L. Plyler, a/k/a Bobbie Lee Plyler, as Trustee, Moses Muzquiz, Jr., Carra Muzquiz, a/k/a Carra Elaine Leonard, Moses Muzquiz, III, Sylvia Muzquiz, Daniel K. Trevino, as liquidating Trustee of American National Bank, Bob L. Plyler and Paulette Plyler, Individually, Defendants.
• Court: U.S. Bankruptcy Court — Southern District of Texas

122 B.R. 56 (1990)

In re Moses MUZQUIZ, Jr., DebtorW. Steve SMITH, Trustee, Plaintiff, v.George WEISSFISCH, Individually and as Trustee, Pasadena Internal Medicine and Cardiology Clinic, Inc., Bob L. Plyler, a/k/a Bobbie Lee Plyler, as Trustee, Moses Muzquiz, Jr., Carra Muzquiz, a/k/a Carra Elaine Leonard, Moses Muzquiz, III, Sylvia Muzquiz, Daniel K. Trevino, as liquidatingTrustee of American National Bank, Bob L. Plyler and Paulette Plyler, Individually, Defendants.

Bankruptcy No. 82-01953-H3-6, Adv. No. 83-2597-H3.

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

June 1, 1990.

Charles E. Long, Woodard, Hall & Primm, Houston, Tex., for trustee.

Arnold Schafer, Schafer & Weiner, Birmingham, Mich., for debtor.

MEMORANDUM OPINION

LETITIA Z. CLARK, Bankruptcy Judge.

Came on for consideration the Motion To Set Aside Default Judgment filed by Debtor, Moses Muzquiz, Jr., and the Trustee's Motion for Sanctions contained in his Response To Moses Muzquiz, Jr.'s Motion To Set Aside Default Judgment and after considering the pleadings and memoranda, the court makes the following findings of fact and conclusions of law and enters a separate Judgment in conjunction herewith denying Debtor's Motion.To the extent any findings of fact herein are construed to be conclusions of law, they are hereby adopted as such.To the extent any conclusions of law herein are construed to be findings of fact, they are hereby adopted as such.

The court takes judicial notice of the docket sheets and of its own orders in this adversary proceeding and in the Debtor's main case as well as of certain pleadings herein identified by Docket Number or date, and of the record of the hearing before the court on September 10, 1987.

On December 23, 1983, the Chapter 7Trustee filed a complaint against the Debtor, among others, seeking a denial of discharge and recovery of various fraudulent transfers made by Debtor.On February 13, 1984 the Debtor filed an answer to the complaint.The Debtor thereafter consistently and intentionally refused to participate in discovery efforts or be examined by the Trustee.See Docket Sheet, Adversary 83-2597-H3, and discussion below.On January 6, 1988 a Judgment was entered against defendant Debtor disposing of the above referenced adversary action.The Judgment granted the Trustee the relief requested in the complaint.

Debtor is a medical doctor who sought the protection of Bankruptcy in the Southern District of Texas, refused to cooperate with Trustee or to make his assets available to his creditors as is required by the Code, and thereafter moved to Michigan, there to rejuvenate his finances by continued practice of his profession, and continued failure to advise his creditors, the court, and the Trustee of his whereabouts.

The Debtor's failure to cooperate or to appear before this court began soon after the initial complaint was filed by the Trustee.On January 23, 1985Trustee filed his "Notice of Oral Deposition" of the Debtor (DocketNo. 31) scheduling the initial deposition for February 5, 1985.Subsequent to the deposition date, on February 13, 1985, Debtor filed a Motion for Protective Order(DocketNo. 35).Trustee then filed a Motion to Compel Attendance at Deposition and For Sanctions along with a Response to The Debtor's Motion for Protective Order(DocketNos. 37 and 46).On May 1, 1985, this court held a hearing on the above Motions resulting in the court's approving an Agreed Order entered into between the Trustee and Debtor wherein the Debtor specifically consented to being deposed in Houston, Texas and to payment of sanctions to the Trustee in the amount of $130.00 (DocketNo. 48).Pursuant to the Agreed Order, Debtor was to have paid the sanctions by May 14, 1985, and by June 7, 1985 was to have chosen a date for the taking of his deposition, which was to have been held sometime before August 1, 1985.The record shows that Debtor subsequently failed to pay sanctions and refused to choose a deposition date.

On June 26, 1985, Trustee again filed a Motion for Contempt and Additional Sanctions (DocketNo. 49).The court scheduled a hearing on this Motion for August 30, 1985(DocketNo. 50).Thereafter, on August 16, 1985 the Debtor filed another Motion for Protective Order and Other Relief alleging that subsequent to the agreement setting a deposition date, the Debtor had moved to Michigan, and that health problems precluded his attendance (DocketNo. 52).Before the August 30, 1985court hearing, Trustee filed a Second Motion for contempt and additional sanctions (DocketNo. 56) which Motion was scheduled for hearing on October 15, 1985.At the hearing held by the court on August 30, 1985, the court found the Debtor to be in contempt for failure to pay the previous sanctions of $130.00.In addition, the court found the letter from Debtor's doctor concerning his health problems inconclusive and unconvincing and not directly related to the Motion that was under consideration.Due to the nonappearance of Debtor and his counsel at that hearing, the court set show cause hearings for October 15, 1985.(Minutes of Court's hearing, entered September 9, 1985.)

On October 15, 1985the court held a hearing on its show cause Orders and the Trustee's Second Motion for Contempt.The court awarded the Trustee the amount of $3,500.00 in stipulated sanctions against the defendant with payment to have been made on or before October 31, 1985.In addition, Debtor was to make himself available for deposition on or before that same date.The court also ruled that failure of the Debtor to do either would result in striking of pleadings and a default judgment.(SeeDocketNo. 71.)

Thereafter, the court modified the date for the taking of the deposition and the Debtor was directed to appear on or before November 30, 1985.(DocketNo. 66.)Debtor never paid the sanctions award and refused and failed to appear for the deposition without explanation.As a result, the Trustee moved for entry of default against Debtor, among others.This was granted by the court on June 26, 1986(DocketNo. 78) with all parties being duly notified.Thereafter, a Notice of Trial setting was properly served on Debtor, at two different addresses, on August 8, 1987 scheduling same for September 10, 1987, at which time Debtor again failed to appear.(DocketNos. 137, 151, & 174.)

The Trustee put on evidence, and oral findings of fact and conclusions of law were made pursuant to Federal Rules of Civil Procedure 52 and Bankruptcy Rule 7052.Thereafter, the court signed its Final Judgment dated January 6, 1988 with all parties being duly notified of same.(DocketNo. 173.)On February 28, 1990, over two years after entry of Final Judgment, Debtor filed the present Motion.(DocketNo. 175....