In re Overmyer, Bankruptcy No. 82 B 20329
| Decision Date | 29 October 1990 |
| Docket Number | No. 83 Adv. 6036.,Bankruptcy No. 82 B 20329,83 Adv. 6036. |
| Citation | 121 BR 272 |
| Parties | In re Daniel H. OVERMYER, Debtor. Harvey S. BARR, as Trustee of Daniel H. Overmyer, Plaintiff, v. Daniel H. OVERMYER, Defendant. |
| Court | U.S. Bankruptcy Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Barr & Rosenbaum, Spring Valley, N.Y., for plaintiff.
Raymond J. Aab, New York City, for debtor/defendant.
DECISION ON MOTION FOR SUMMARY JUDGMENT
The plaintiff, Harvey S. Barr, as Trustee of the debtor, Daniel H. Overmyer ("the Trustee"), has moved this court, pursuant to Fed.R.Civ.P. 56, which is made applicable to this adversary proceeding by Bankruptcy Rule 7056, for summary judgment on all counts of a complaint filed with this court on or about April 24, 1985 (the "Complaint"). The Complaint instituted an adversary proceeding in which the Trustee seeks a denial of the debtor's discharge pursuant to 11 U.S.C. §§ 727(a)(2), 727(a)(3), 727(a)(4)(A), 727(a)(4)(B), 727(a)(5) and 727(a)(7) (the "Adversary Proceeding"). The Trustee asserts that there is no genuine issue of material fact to be litigated because the underlying facts which support a denial of the debtor's discharge have been fully litigated and determined in the proceedings in the Bankruptcy Court for the Northern District of Ohio reported as Hadar Leasing International Co., Inc. v. D.H. Overmyer Telecasting Co., Inc. (In re D.H. Overmyer Telecasting Co., Inc.), 23 B.R. 823 (Bankr.N.D.Ohio 1982), aff'd, 53 B.R. 963 (N.D.Ohio 1984), in the decision rendered by the United States Court of Appeals for the Sixth Circuit reported as United States v. Daniel Overmyer, 867 F.2d 937 (6th Cir.1989) and in the proceedings before this court reported as First National Bank of Boston v. Daniel H. Overmyer (In re Overmyer), 52 B.R. 111 (Bankr.S.D.N.Y.1985) (). In addition, the Trustee asserts that the debtor's failure to admit or deny paragraph 4 of the Complaint filed in the Adversary Proceeding constitutes an admission as set forth in Fed.R.Civ.P. 8(d).1
of the Debtor pursuant to 11 U.S.C. § 727. The Complaint sets forth eight claims for relief as follows:
Count 1
The Debtor's discharge should be denied pursuant to 11 U.S.C. § 727(a)(2) because during or after the one year preceding the filing of his petition, the debtor concealed his or his estate's equitable interests in several corporations, including Hadar Leasing International Co., Inc. ("Hadar") and D.H. Overmyer Co., Inc. ("D.H. Overmyer") (collectively referred to as "the Overmyer Companies").
Count 2
The Debtor's discharge should be denied pursuant to 11 U.S.C. § 727(a)(4)(A) because the Debtor made a false oath by signing the Bankruptcy Petition, Schedules and Statements of Affairs which failed to list any of the Debtor's equitable interests in the Overmyer Companies.
The Debtor's discharge should be denied pursuant to 11 U.S.C. § 727(a)(4)(B) because the Debtor listed false claims of some of the Overmyer Companies in his Schedules.
The Debtor's discharge should be denied pursuant to 11 U.S.C. §§ 727(a)(3) and 727(a)(7) because the Debtor, within one year preceding the filing date of the Petition, concealed information from which the financial condition or business records of some or all of the Overmyer Companies might be ascertained, by presenting, or causing to be presented, records that had been backdated.
The Debtor's discharge should be denied pursuant to 11 U.S.C. §§ 727(a)(3) and 727(a)(7) because the Debtor, within one year preceding the filing date of the Petition, destroyed, mutilated or did not keep records from which the financial or business transactions of some or all of the Overmyer Companies, might be ascertained.
The Debtor's discharge should be denied pursuant to 11 U.S.C. §§ 727(a)(4)(A) and 727(a)(7) because the Debtor filed at least one false affidavit with the Ohio Bankruptcy Court in connection with the bankruptcy cases of Hadar and D.H. Overmyer which were filed on March 27, 1981 and November 16, 1973, respectively.
The Debtor's discharge should be denied pursuant to 11 U.S.C. § 727(a)(5) because the debtor has failed to satisfactorily explain the loss and deficiency of assets to meet his liabilities.
The Debtor's discharge should be denied pursuant to 11 U.S.C. § 727(a)(3) because the Debtor concealed, destroyed, mutilated, falsified, or failed to keep or preserve recorded information from which the Debtor's financial condition or business transactions might be ascertained.
3. The Debtor filed a pro se answer on or about July 17, 1989 (the "Answer") which admitted that he had signed a bankruptcy petition and certain accompanying papers and that the Ohio Bankruptcy Court made certain determinations, the validity of which the debtor questioned. However, he specifically denied all of the remaining allegations in the Complaint with the exception of paragraph 4 to which the debtor made no reference. Paragraph 4 of the Complaint provides:
4. The Answer also contained two affirmative defenses. These affirmative defenses were that the complaint failed to state a claim upon which relief can be granted and that the decision rendered by the Bankruptcy Court in Ohio was invalid because it violated the automatic stay in this case.
5. The Trustee filed a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56, made applicable by Bankruptcy Rule 7056, on or about June 6, 1990.
6. On or about August 24, 1990, a Cross-motion for Denial of the Trustee's Motion for Summary Judgment (the "Cross-motion") was filed with this court by the Debtor. In addition to denial of the Trustee's Summary Judgment Motion, the debtor sought an order pursuant to Fed.R. Civ.P. 15(a) to amend his answer so that he could deny paragraph 4 of the Complaint.
7. On or about August 24, 1990, the Debtor filed an unsigned, undated, amended answer (the "Amended Answer") which denied, with certain exceptions, paragraph 4 of the Complaint.
8. This court issued a Preliminary Memorandum Decision on Motion and Cross Motion for Summary Judgment on September 10, 1990 (the "Preliminary Decision") which determined that the Amended Answer was not signed by Mr. Overmyer's attorney, as required by Fed.R.Civ.P. 11 which is made applicable by Bankruptcy Rule 7011. The Preliminary Decision also ordered a properly signed, Amended Answer to be filed with this court within 10 days. In addition, the Preliminary Decision ordered that if a properly signed, amended answer was not filed within 10 days, then the Amended Answer would be stricken and those averments in the complaint which were not answered in the Answer filed with this court on or about July 17, 1989 would be deemed admitted in accordance with Fed.R. Civ.P. 8 and Bankruptcy Rule 7008.
9. On or about September 18, 1990, another amended answer was filed with this court and signed by Daniel H. Overmyer, rather than the attorney of record (the "Second Amended Answer"). Accompanying the Second Amended Answer was a letter to the court dated September 17, 1990 in which the debtor expressed that his attorney was the attorney of record only in connection with defending the Trustee's Motion for Summary Judgment. This court, in turn, sent a letter to the attorney dated September 27, 1990, which noted that the attorney had submitted to this court a motion pursuant to Fed.R.Civ.P. 15(a) seeking to amend Mr. Overmyer's answer. The letter gave the attorney until October 5, 1990 to submit a properly signed, amended answer. A properly signed, amended answer was filed with this court on October 10, 1990 (the "Third Amended Answer").
10. In his Third Amended Answer, the Debtor denied the allegations contained in paragraph 4 of the Complaint, except that he admitted that the Ohio Bankruptcy Court made "certain determinations concerning the debtor's control over the Hadar and DHO entities." The Debtor further disputed that "he had any equitable interest in those entities such as might pass to the trustee herein." Finally, the debtor answered that he disputes the findings of the Ohio Bankruptcy Court with respect to any equitable interests in Hadar and DHO.
In ruling on a motion for summary judgment, the court must review the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, to determine if there is no genuine issue as to any material fact so that the moving party is entitled to a judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses . . ." Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Electric Industrial Co., Inc. v. Zenith Radio Corp., 475 U.S. 574, 599, 106 S.Ct. 1348, 1362, 89 L.Ed.2d 538 (1986).
To continue reading
Request your trial