In re Saber
| Decision Date | 24 February 1999 |
| Docket Number | Adversary No. 98-2316-BKC-PGH-A.,Bankruptcy No. 98-22402-BKC-PGH |
| Parties | In re Steven S. SABER, Debtor. Sonya L. Salkin, as Bankruptcy Trustee for the Estate of Steven S. Saber, Plaintiff, v. Esther B. Slobodinsky, individually and as Successor Trustee, and Steven S. Saber, Defendants. |
| Court | United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Florida |
COPYRIGHT MATERIAL OMITTED
Ronald G. Neiwirth, Miami, FL.
Reggie D. Sanger, Ft. Lauderdale, FL, for Esther Slobodinsky.
Steven S. Saber, Hollywood, FL, Pro Se.
Chad P. Pugatch, Ft. Lauderdale, FL.
Sonya Salkin, Plantation, FL, trustee.
THIS MATTER came before the Court on October 30, 1998, upon Sonya L. Salkin's ("Plaintiff"), as Bankruptcy Trustee for the Estate of Steven S. Saber, Motion for Summary Judgment Against Steven S. Saber ("Saber") for Denial of Discharge and Against Esther B. Slobodinsky ("Slobodinsky") for Avoidance of Fraudulent Transfer (the "Motion for Summary Judgment"). On November 23, 1998, Slobodinsky filed a Response to Plaintiff's Motion for Summary Judgment and a Cross Motion for Summary Judgment. On November 30, 1998, Saber filed a Response to Plaintiff's Motion for Summary Judgment and a Cross Motion for Summary Judgment. Because Saber could not agree with Plaintiff and Slobodinsky on all of the material facts, Saber filed a Unilateral Statement of Facts on December 4, 1998. Subsequently, on December 30, 1998, Plaintiff and Slobodinsky filed a Joint Stipulation of Facts. The Court finds that there are sufficient undisputed material facts to render partial summary judgment appropriate.1See Clemons v. Dougherty County, 684 F.2d 1365, 1368 (11th Cir.1982) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). Having reviewed the Motion for Summary Judgment, the Responses and Cross Motions for Summary Judgment, Saber's Unilateral Statement of Facts, and the Joint Stipulation of Facts, the Court hereby enters the following findings of fact and conclusions of law.
Saber is a practicing attorney with a law office located at 2016 Harrison Street, Hollywood, Florida 33020 (the "Counsel Building"). Saber has a juris doctor degree and a master of laws degree in taxation. His law practice includes, inter alia, representing debtors in bankruptcy. On December 28, 1990, pursuant to Section 689.071, Florida Statutes, Saber entered into a Florida Land Trust Agreement (the "Land Trust") and a Beneficiary Agreement (Co-ownership) with Samuel S. Forman ("Forman"), and Lewis H. Cohen ("Cohen"). Neither agreement was recorded. The Counsel Building, which is the res of the Land Trust, is worth approximately $150,000.00 and was refinanced approximately six years ago with a mortgage of at least $75,000.00.2 Forman was designated as the Trustee of the Land Trust and one of its three Beneficiaries. In accordance with § 689.071, Forman received 100% of the legal and equitable title to the Counsel Building. Cohen and Saber were the other two Beneficiaries. Originally, each Beneficiary held a one-third beneficial interest in the Land Trust. Pursuant to paragraph 2(b)(4) of the Land Trust, the interest of the Beneficiaries
On June 18, 1991, Cohen assigned his one-third beneficial interest in the Land Trust to Saber. On August 29, 1991, Forman assigned his one-third beneficial interest in the Land Trust to Saber, giving Saber 100% of the beneficial interest. On that same day, Forman executed a Warranty Deed, conveying the legal and equitable title of the Counsel Building to Saber and making Saber the Successor Trustee of the Land Trust. As a result of the August 29, 1991 assignment and conveyance, Saber became the sole Beneficiary, holding 100% of the beneficial interest in the personal property of the Land Trust, and the Trustee, holding 100% of the legal and equitable interest in the real property of the Land Trust.
Almost two years later, on July 8, 1993, Saber purported to assign his 100% beneficial interest in the personal property of the Land Trust to his mother, Slobodinsky. On that date, there were no judgments or suits initiated against Saber, and Saber was solvent. In 1995, however, William C. Stasch sued Saber for legal malpractice in the Circuit Court for the 17th Judicial Circuit, Broward County, Florida (Case No. 95-013554(14)).
On January 9, 1998, at 9:00 a.m., the parties to the malpractice suit attended mediation. An agreement was not reached at mediation and so the parties proceeded to trial the following week. On the same day as the mediation, Saber executed a Quit Claim Deed purportedly resigning his position as Trustee and making Slobodinsky the Second Successor Trustee of the Land Trust. On January 16, 1998, at the conclusion of the malpractice trial, the jury entered a verdict in favor of William C. Stasch and against Saber. The written final judgment, awarding William C. Stasch $613,584.90, was signed on February 2, 1998. On April 8, 1998, Saber voluntarily filed for protection under Chapter 7 of the Bankruptcy Code (the "Petition Date") Saber was insolvent when he filed for bankruptcy.
On June 16, 1998, Plaintiff filed an Adversary Proceeding (No. 98-2196-BKC-PGH) to recover two pieces of property, namely Boynton Beach Property and Volusia County Property, from Slobodinsky and Sandra Shapira ("Shapira"), Saber's sister. On October 14, 1998, the parties to that Adversary Proceeding filed a Stipulation which resulted in Plaintiff's recovery of the Boynton Beach and Volusia County Property, without any admission of liability on the part of Slobodinsky or Shapira. On September 15, 1998, Plaintiff filed the instant Adversary Proceeding to recover an alleged fraudulent or preferential transfer to Slobodinsky and for denial of Saber's discharge.
In Plaintiff's Motion for Summary Judgment, Plaintiff alleges that Saber fraudulently transferred the Counsel Building and made false oaths in the Bankruptcy Schedules and Statement of Financial Affairs. Based thereon, Plaintiff argues that Saber should be denied his discharge pursuant to 11 U.S.C. § 727(a)(2), (3), & (4). Plaintiff further asserts that this Court should avoid the allegedly fraudulent transfer of the Counsel Building to Slobodinsky for the benefit of Saber's Bankruptcy Estate.
In Saber's Response and Cross Motion for Summary Judgment, Saber contends that he did not make false oaths in his Bankruptcy Schedules and Statement of Financial Affairs. Instead, Saber insists that he made careless omissions; he did not intend to mislead or defraud any creditor. Furthermore, Saber asserts that he transferred the Counsel Building to Slobodinsky in 1993, and so he did not fraudulently transfer that real property to an insider within one year of the Petition Date. Saber therefore argues that his discharge should not be denied.
Finally, in Slobodinsky's Response and Cross Motion for Summary Judgment, she also contends that Saber transferred the Counsel Building to her in 1993, rather than within one year prior to the Petition Date as Plaintiff suggests. Therefore, Slobodinsky argues that the Court should not avoid the 1993 transfer of the Counsel Building for the benefit of Saber's Bankruptcy Estate because it was not fraudulent.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and 28 U.S.C. § 157(b)(2)(F), (H), & (J). This is a core proceeding under 28 U.S.C. § 157(b)(2)(F), (H), & (J).
Federal Rule of Civil Procedure 56(c), made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056, provides that Summary Judgment is appropriate if the Court determines that the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, "the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). "Summary Judgment is appropriate when, after drawing all reasonable inference in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Murray v. National Broadcasting Co., Inc., 844 F.2d 988, 992 (2d Cir.1988).
In a motion for summary judgment, the moving party initially bears the burden of establishing the absence of a genuine issue as to any material fact. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548 (citing Adickes, 398 U.S. at 159, 90 S.Ct. 1598). That burden can be satisfied by demonstrating the absence of evidence supporting the nonmovant's case. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. When a motion for summary judgment is made and supported by the movant, Fed.R.Civ.P. 56(e) requires the nonmoving party to set forth specific facts demonstrating that genuine issues of material fact...
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