Ragone v. Pizza Pan Elyria, LLC (In re Ragone)
| Decision Date | 21 May 2019 |
| Docket Number | Adv. Pro. No. 18-03070,Case No. 13-51335 |
| Parties | In Re: Frank R. Ragone, Jr., Debtor. Frank R. Ragone, Jr., Plaintiff, v. Pizza Pan Elyria, LLC, et al., Defendants. |
| Court | United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Northern District of Ohio |
The court incorporates by reference in this paragraph and adopts as the findings and analysis of this court the document set forth below. This document has been entered electronically in the record of the United States Bankruptcy Court for the Northern District of Ohio.
MEMORANDUM OF DECISION AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
This Adversary Proceeding comes before the court on Defendants Stefanik & Christie, LLC and John R. Christie's ("Defendants") Motion for Summary Judgment ("Motion"). [Adv. Doc. #20]. Plaintiff-Debtor Frank Ragone, Jr. filed a Response ("Response") [Adv. Doc. #25], and with permission from the court [Adv. Doc. #30] Defendants filed a Reply Brief ("Reply"). [Adv. Doc. 27].
In their Motion, Defendants seek summary judgment on Plaintiff-Debtor's automatic stay/discharge injunction violation claims, arguing that: 1) Defendants lacked notice of Plaintiff-Debtor's bankruptcy case; 2) that if a violation occurred, Defendants did not act willfully; and 3) that Plaintiff-Debtor cannot meet his evidentiary burden. [Adv. Doc. #20, pp. 4-6]. In his Response, Plaintiff-Debtor argues that summary judgment is inappropriate because genuine issues of material fact regarding Defendants' garnishment actions remain disputed. [Adv. Doc. #25, p. 8]. A Reply Brief [Adv. Doc. #27-1] was filed as an exhibit to Defendants' Motion to File Reply Brief Instanter. [Adv. Doc. #27]. Subsequently, the court entered an Order granting Defendants' motion to file their Reply Brief instanter. [Adv. Doc. #30].
The above captioned Adversary Proceeding was transferred to this court on September 20, 2018 [Adv. Doc. #12], and the case number was changed from 18-05009-amk to 18-03070-jpg. The court has jurisdiction over this proceeding pursuant to 28 U.S.C. §§1334, 157(a), and General Order 2012-7 of the United States District Court for the Northern District of Ohio. Actions to determine whether violations of the automatic stay and/or the discharge injunction have occurred are core proceedings that this Court may hear and determine. 28 U.S.C. §157(b)(1) and (b)(2)(A), (b)(2)(O).
Because Plaintiff-Debtor's claims turn on genuine issues of material fact that remain disputed, Defendant's Motion for Summary Judgment will be denied.
On summary judgment the types of evidence the court may consider are governed, in part, by Federal Rule of Civil Procedure 56(c)(1)(A)-(B)1, which states:
Federal Rule of Civil Procedure 56(c)(3) further states that: "The court need consider only the cited materials, but may consider other materials in the record."
Plaintiff Frank R. Ragone, Jr. ("Plaintiff" or "Ragone") filed Chapter 7 bankruptcy on May 8, 2013 in Akron, Ohio. See, , .].
At the time of filing, Ragone appears to have owed monies to Pizza Pan Elyria, LLC ("Pizza Pan") and/or Jeffrey A. Boring ("Boring"). [Adv. Doc. #1, p. 4, ¶11; Adv. Doc. #6, p. 2, ¶6; Doc. 27-1, p. 2; Case 13-51335, Claims Register, Claims ##1-1 & 2-1]. These obligations were listed in Ragone's Chapter 7 on Schedule F. [Doc. #1, p. 16; Adv. Doc. #1, p. 4, ¶13].
The Matrix attached to Ragone's Petition reflects that Pizza Pan Elyria, LLC was listed as having an address of "360 Cleveland Street, Elyria, OH 44035". [Doc. #1, p. 38]. Jeffery A. Boring's address was listed in the Matrix as: "Jeffery A. Boring, c/o Anthony Calabrese, III, 2450A One Cleveland Center, 1375 9th Street, Cleveland, OH 44114". Id.
The docket in Case 13-51335 reflects that the following notices were mailed, by the Bankruptcy Noticing Center, to Pizza Pan, and to Jeffery A. Boring, c/o Anthony Calabrese:
Ragone's Chapter 7 case was initially closed without a discharge on February 5, 2014, for failure to "timely file a Financial Management Course Certification (Form 23)". [Doc. #26].
An "Order and Notice of Garnishment" was filed by John R. Christie in Cleveland Municipal Court on June 6, 2014. [Adv. Doc. #25-1, Ex. E, p. 36]. Although it appears there were prior garnishments issued on the judgment against Ragone [Id., Ex. F, pp. 27-32], Exhibit E reflects that the garnishee was Mars Electric, which appears to have been Ragone's employer. [Id., Ex. E, p. 36].
From the docket in the Main Case, it appears that on June 19, 2014, Ragone's attorney filed what is docketed as "First Motion to Reopen Chapter 7 Case". [Doc. #28]. However, all that was included was a Certificate of Debtor Education, with no actual "Motion". Id. An Amended Motion to Reopen Chapter 7 Case was filed at Doc. #29. The Certificate of Credit Counseling was filed separately (again) at Doc. #30.
A second Amended Motion to Reopen Chapter Seven Case was filed on August 22, 2014. [Doc. #31]. For reasons unknown, the Order Granting Motion to Reopen Case was not entered until June 17, 2015. [Doc. #32]. The Order of Discharge was subsequently entered on June 18, 2015 [Doc. #33], with notice going out from the Bankruptcy Noticing Center as described above.
On May 20, 2016, a "Motion to Reopen Chapter 7 Case and Revoke Discharge" was filed on behalf of "judgment creditor, Stefanik & Christie". [Doc. #37]. The docket entry for Doc. #37 reflects, in part: . A Notice of Filing Deficiency reflected the need for a Certificate of Service. [Doc. #38]. On May 20, 2016, an Amended Motion, captioned "Motion to Reopen Chapter 7 Case and Revoke Discharge" was filed, with a Certificate of Service. [Doc. #39]. The docket entry for Doc. #39 reflects, in part: "Amended Motion to Reopen Filed by Creditor Pizza PanElyria LLC".
In both Motions to Reopen filed on behalf of "judgment creditor, Stefanik & Christie, LLC", the signature line reflected: "John R. Christie (bar number), Stefanik & Christie, LLC, 1375 East 9th Street, Suite 2450, Cleveland, Ohio 44114". [Docs. #37, p. 1; #39, p. 1]. A number of documents were attached to the Motions to Reopen, but no affidavits or other sworn statements were provided, nor were any of the attached documents certified. Notably, one of the documents attached to both Motions appears to be captioned as Cognovit Answer, filed on behalf of Jeffrey A. Boring. [Doc. 37-1, p. 16; Doc. 39-1, p. 16]. The signature line of the Cognovit Answer indicates that it was signed by John R. Christie as attorney for Defendant Boring. Id. The file stamp appears to reflect a filing date in January of 2013. Id. What appears to be the associated Cognovit Complaint, filed on behalf of "Plaintiff, The Calabrese Law Firm, LLC", more clearly shows what appears to be a file stamp date of January 9, 2013. [Doc. 37-1, Ex. B, p. 14; Doc. 39-1, Ex. B, p. 14].
The Clams Register reflects that on May 31, 2013, two identical (duplicate) claims were filed on behalf of Pizza Pan by Anthony O. Calabrese, Esq. [Case No. 13-51335, Claims 1-1 and 2-1]. The amount claimed, in each proof of claim, was $28,300. [Id.] The basis for the claim was listed as "Judgment". [Id.] The Certificate of Service reflects it was served upon Ragone's bankruptcy attorney at the time, Rebecca A. Clark. [Id., at p. 4].
The docket does not reflect that any objection was filed to the duplicate claim. The claims register does not reflect that either claim was withdrawn. The Trustee's Final Report, filed November 19, 2013, reflects that that claim 2-1 is a "duplicate", and it is listed at "$0.00". [Doc. #21, p. 5 ( )]. The Trustee's Final Report also indicates that "PIZZA PAN ELYRIA, LLC" was to receive a proposed payment of "736.76". [Doc. #21, p. 7]. Similarly, the document referred to on the docket as "Zero Bank Statement/Final Account", also known as "UST Form 101-7-TDR", reflects that Pizza Pan Elyria, LLC was paid "736.76" on Claim 1-1. [Doc. #25, p. 4].
The following evidence was submitted by De...
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