In re Oliver
| Decision Date | 22 May 2009 |
| Docket Number | Adversary No. 08-3129.,Bankruptcy No. 08-31832. |
| Parties | In re David W. OLIVER, Debtor N. David Roberts, Jr., Trustee, Plaintiff v. David W. Oliver, Defendant. |
| Court | United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Eastern District of Tennessee |
N. David Roberts, Jr., Esq., Knoxville, TN, for Plaintiff.
Moore & Brooks, Brenda G. Brooks, Esq., Knoxville, TN, for Defendant/Debtor.
MEMORANDUM ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION TO STRIKE
This adversary proceeding is before the court upon the Complaint filed by the Plaintiff on September 22, 2008, objecting to the Defendant's discharge under 11 U.S.C. § 727(a)(2)(A) and (4)(A) (2006). The Defendant did not file a responsive pleading; instead, on November 6, 2008, he filed the Defendant's Motion for Summary Judgment (Motion for Summary Judgment), accompanied by his brief and Statement of Undisputed Facts in Support of Motion for Summary Judgment required by E.D. Tenn. LBR 7056-1, as amended on December 11, 2008 (Defendant's Statement of Undisputed Material Facts). Also filed in support of the Motion for Summary Judgment were the following exhibits: (1) the Defendant's statements and schedules filed in his Chapter 7 bankruptcy case; (2) the November 6, 2008 Affidavit of Brenda G. Brooks, with the following attachments: (A) a letter from Ms. Brooks to the Plaintiff dated July 25, 2008; (B) a July 16, 2008 letter from Ms. Brooks to the Plaintiff; (C) a payoff statement as of June 27, 2008, from Countrywide Bank for a loan secured by real property located at 9844 Kristi Drive, Knoxville, Tennessee; (D) invoices from Betty Kay Reynolds, P.C., a certified public accountant, dated June 30, 2007, and March 10, 2008; and (E) Customer Ledgers from Reynolds Piper & Associates, PC, evidencing payments received between January 1, 2006, to December 31, 2008, from Conlogue-Oliver, LLC and the Defendant; (3) the October 29, 2008 Affidavit of the Defendant; and (4) the October 30, 2008 Affidavit of Mariah Byrd.
In compliance with E.D. Tenn. LBR 7056-1(b), the Plaintiff filed his Response to Defendant's Statement of Undisputed Material Facts and his Statement of Additional Undisputed Material Facts (Plaintiff's Statement of Undisputed Material Facts) on December 15, 2008.1 In support of his position, the Plaintiff also filed the following: (1) the partial transcript of the Rule 2004 Examination of the Defendant taken September 9, 2008; (2) the partial transcript of the Rule 2004 examination of Aaron M. Householder taken September 9, 2008,2 and (3) the October 29, 2008 Affidavit of the Plaintiff, accompanied by fifteen exhibits marked Exhibits A through O.
On January 6, 2009, the Defendant filed a Response to Plaintiff's Statement of Additional Undisputed Facts and the Defendant's Motion to Strike (Motion to Strike), seeking to strike or quash portions of the Plaintiff's Affidavit, Exhibits I, J, K, L, M, N, and O thereto, and the transcript of Mr. Householder's Rule 2004 examination. The Plaintiff filed his Response to Defendant's Motion to Strike (Response to Motion to Strike) on January 7, 2009.
This is a core proceeding. 28 U.S.C. § 157(b)(2)(J) (2006).
Rule 56, made applicable in bankruptcy proceedings by Rule 7056 of the Federal Rules of Bankruptcy Procedure, provides that summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). When deciding a motion for summary judgment, the court does not weigh the evidence to determine the truth of the matter asserted but simply determines whether a genuine issue for trial exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The facts and all resulting inferences are viewed in a light most favorable to the non-moving party, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and the court will decide whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 106 S.Ct. at 2512.
"[O]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,]" Anderson, 106 S.Ct. at 2510, and the Defendant, as the moving party, bears the initial burden of proof that there are no genuine issues of material fact, such that he is entitled to judgment as a matter of law. Owens Corning v. Nat'l Union Fire Ins. Co., 257 F.3d 484, 491 (6th Cir.2001). Thereafter, the burden shifts to the Plaintiff, as the nonmoving party, to provide sufficient proof of a genuine issue for trial through the use of affidavits or other evidence and not merely through reliance upon the allegations or denials contained in the pleadings. FED.R.CIV.P. 56(e)(2); see also Matsushita, 106 S.Ct. at 1356; Harris v. Gen. Motors Corp., 201 F.3d 800, 802 (6th Cir. 2000). Reliance upon a "mere scintilla of evidence in support of the non-moving party is insufficient[,]" Nye v. CSX Transp., Inc., 437 F.3d 556, 563 (6th Cir.2006), and any affidavits filed in support of or in opposition to summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated[ and i]f a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit." FED.R.CIV.P. 56(e)(1). "These requirements are mandatory[, and an] affidavit that does not satisfy the requirements of Rule 56(e) is subject to a motion to strike." Collazos-Cruz v. United States, 117 F.3d 1420 (table), 1997 U.S.App. LEXIS 17196, at *6-7, 1997 WL 377037, at *2 (6th Cir. 1997).
In opposition to the Motion for Summary Judgment, the Plaintiff filed an Affidavit with fifteen exhibits appended thereto. In his Motion to Strike, the Defendant seeks to strike or quash specific portions of the Plaintiff's Affidavit, Exhibits I, J, K, L, M, N, and O thereto, and the transcript of Mr. Householder's Rule 2004 examination, arguing that the Affidavit does not properly authenticate those specific exhibits, thereby rendering the Plaintiff's reliance thereon inadmissible hearsay, and that Mr. Householder's testimony from his Rule 2004 examination is additionally inadmissible hearsay. In support of his arguments, the Defendant cites to and relies upon Rule 56(e) and its requirement that any documents attached to an affidavit in a support of summary judgment motion be sworn or certified, as well as Rule 801 of the Federal Rules of Evidence which states as follows:
(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(d) Statements which are not hearsay. A statement is not hearsay if —
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
The Plaintiff, in his Response to Motion to Strike, asserts that the averments in his Affidavit and the disputed exhibits are not inadmissible hearsay, relying upon the following subsections to Rule 803 of the Federal Rules of Evidence, which provides that "[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness":
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(6) Records of Regularly Conducted Activity. — A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with ...
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