Olick v. Northampton Cnty. (In re Olick)
| Citation | 517 B.R. 549 |
| Decision Date | 16 September 2014 |
| Docket Number | Adversary No. 12–0631.,Bankruptcy No. 07–10880 ELF. |
| Parties | In re Thomas W. OLICK, Debtor. Thomas W. Olick, Plaintiff v. Northampton County, Defendant. |
| Court | United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania |
Thomas W. Olick, pro se.
Hugh J. Hutchison, Leonard Sciolla Hutchison Leonard & Tina, Philadelphia, PA, for Defendant.
Thomas Olick (“the Debtor”) filed a chapter 13 bankruptcy case on February 9, 2007. His chapter 13 plan was confirmed and he performed his obligations under the plan. He received a chapter 13 discharge on March 6, 2012.
The Debtor's bankruptcy case remains open in 2014, more than seven (7) years after it was filed and more than two and one-half (2 ½) years after the entry of his chapter 13 discharge, because the Debtor has filed at least sixteen (16) adversary complaints in this court since March 2007 in connection with the main bankruptcy case. Nine (9) of the seventeen (17) adversary complaints were filed prior to his March 6, 2012 discharge; at least seven (7) were filed after the entry of the discharge, the last one as recently as July 17, 2014.
More than half of the lawsuits the Debtor has filed in this court since 2007 involve the same issue—whether certain taxing authorities and governmental officials are violating bankruptcy law and Pennsylvania law in their attempts to collect real estate taxes they claim are due on several properties the Debtor owns. The adversary proceeding sub judice is one such lawsuit.1
This adversary proceeding was filed on October 11, 2012, more than six (6) months after the entry of his discharge. The Debtor's prime contention is that Defendant Northampton County (“the County”) violated the terms of his confirmed and completed chapter 13 plan and the terms of a settlement in a prior adversary proceeding by attempting to collect certain prepetition real estate taxes. He also claims that the County's collection efforts violate Pennsylvania law.
Presently before the court is the County's motion for summary judgment (“the Motion”).
As explained below, based on the evidence in the summary judgment record, there are no disputed issues of material fact. The record establishes that the County has not been attempting to collect taxes that fell due before the Debtor filed his bankruptcy case and that were provided for in his chapter 13 plan. Therefore, as a matter of law, the County's actions did not violate the Debtor's chapter 13 plan. As for the Debtor's claims based on the settlement of the prior adversary proceeding and the other state law claims, this court lacks subject matter jurisdiction to consider them.
Accordingly, I will grant the Motion and enter judgment in the County's favor on the Debtor's claim for enforcement of his confirmed chapter 13 plan and dismiss all of his other claims for lack of jurisdiction.
As stated above, the Debtor commenced this bankruptcy case on February 9, 2007. His chapter 13 plan was confirmed on January 22, 2008 and he received a chapter 13 discharge on March 6, 2012. Six (6) months after the entry of his discharge, on October 11, 2012, the Debtor initiated this adversary matter by filing a complaint against the City of Easton, the County, Portnoff Law Associates, LTD, Sal Panto, Howard White and William Murphy.
On December 13, 2012, I held a hearing to consider whether the court should dismiss the adversary proceeding for lack of subject matter jurisdiction or to abstain from hearing the matter, as well as discuss the possibility of a settlement. The Debtor and all of the Defendants other than the County (“the Other Defendants”) attended the hearing. At that time, the Plaintiff and the Other Defendants reached a global settlement encompassing a resolution of the claims in the adversary proceeding as well as two (2) other related proceedings (Adv. Nos. 12–444 and 12–628). (Doc. # 13). No settlement between the Debtor and the County was reached.
On March 7, 2013, the County filed a motion to dismiss the adversary to which the Plaintiff responded on April 6, 2013. (Doc. # 's 36, 53, 57 & 62). On June 5, 2013, I dismissed the Complaint, but granted the Debtor leave to file an amended complaint. (Doc. # 70). The Debtor filed an Amended Complaint against the County on June 14, 2013. (Doc. # 74).
In the Amended Complaint, the Debtor asserted claims for:
On July 9, 2013, the County filed a motion to dismiss the Amended Complaint, to which the Debtor responded on July 23, 2013. (Doc. # 's 76, 77). On August 7, 2013, I granted in part and denied in part the motion to dismiss the Amended Complaint. (Doc. # 78).
I dismissed the Plaintiff's § 362(k) claim because, as a matter of law, the automatic stay had terminated before any of the events described in the Amended Complaint had occurred. However, at the same time, I also determined that the Plaintiff's § 362(k) claim should be construed as a request for relief under 11 U.S.C. § 105(a) to enforce the terms of the Debtor's confirmed chapter 13 plan and, as such, stated a valid claim for purposes of Fed.R.Civ.P. 12(b)(6).2
I dismissed the breach of contract claim, which was based on a settlement agreement between the parties in an earlier adversary proceeding (Adv. No. 08–264). I did so because the express terms of the agreement “provided only the equivalent of a release to the Plaintiff ... [and] no affirmative remedy in the event that the Defendant undertook prohibited collection activity.” (Order dated August 7, 2013, at n. 3; Doc. # 78).
I dismissed the fraud, negligence and conversion claims because they were not accompanied by factual allegations sufficient “to state a claim that is plausible on its face.” (Id. at n. 4) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
The August 7, 2013 Order authorized the Debtor to file a Second Amended Complaint with respect to the relief requested under the Bankruptcy Code () and the inadequately pled fraud, negligence and conversion claims.3 The Debtor filed a Second Amended Complaint on September 9, 2013. (Doc. # 100).
In the Second Amended Complaint, the Debtor stated two (2) counts: (1) 11 U.S.C. §§ 105 & 1327 and (2) fraud, negligence and conversion.4 The County did not seek dismissal of the nonbankruptcy claims, but instead filed an Answer on October 17, 2013. (Doc. # 108).
On February 10, 2014, the County filed the Motion. (Doc. # 175). After requesting and receiving an extension of time to file a response, the Debtor filed a brief in opposition to the Motion on June 27, 2014. (Doc. # 's 200 & 201). I also granted the County an extension of time to file a reply in support of the Motion. The County's reply was filed on July 18, 2014. (Doc. # 205). The matter is now ready for disposition.
The legal standard for the entry of summary judgment under Fed.R.Civ.P. 56, incorporated into bankruptcy adversary proceedings by Fed. R. Bankr.P. 7056, is well established. Summary judgment is appropriate only when, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. E.g., Tri–M Group, LLC v. Sharp,
638 F.3d 406, 415 (3d Cir.2011) ; In re Bath, 442 B.R. 377, 387 (Bankr.E.D.Pa.2010). In other words, summary judgment may be entered if there are no disputed issues of material fact and the undisputed facts would require a directed verdict in favor of the movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993).
In evaluating a motion for summary judgment, the court's role is not to weigh the evidence, but to determine whether there is a disputed, material fact for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact is one in which sufficient evidence exists that would permit a reasonable fact finder to return a verdict for the non-moving party. Id. at 248, 106 S.Ct. 2505. The court must view the underlying facts and make all reasonable inferences therefrom in the light most favorable to the party opposing the motion. Montone v. City of Jersey City, 709 F.3d 181, 189 (3d Cir.2013). On the other hand, if it appears that the evidence “is so one-sided that one party must prevail as a matter of law,” the court should enter judgment in that party's favor. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
As a threshold matter, the moving party's initial burden is to demonstrate that there are no disputed issues of material fact. E.g., U.S. v. Donovan, 661 F.3d 174, 185 (3d Cir.2011) ; Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir.1996). How the movant meets this burden and how the respondent may rebut the movant's showing is affected by the allocation of the evidentiary burden of persuasion if the dispute were to proceed to trial.
Here, the County (the moving party) does not have the burden of proof at trial. Therefore, it may establish the absence of a disputed issue of material fact and grounds for summary judgment one (1) of two (2) ways: First, and most simply, if the County presents evidence establishing that the undisputed facts negate at least one (1) element of the Debtor's claims, it is entitled to summary judgment. See Quaker State Minit–Lube, Inc. v. Fireman's Fund Ins. Co., 868 F.Supp. 1278, 1287 n. 5 (D.Utah 1994). Alternatively, the County may obtain summary judgment by demonstrating that the Debtor lacks evidence to support an essential element of its claim. See, e.g., Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir.1996) ; In re Polichuk, 506 B.R. 405,...
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