Schall v. Kupperstein (In re Kupperstein)
| Decision Date | 21 January 2021 |
| Docket Number | Adversary Proceeding No. 18-01101-MSH,Case No. 18-10098-MSH,Adversary Proceeding No. 18-01100-MSH |
| Citation | 624 B.R. 515 |
| Parties | IN RE: Donald C. KUPPERSTEIN Debtor Irene B. Schall, Successor Personal Representative of the Estate of Fred W. Kuhn, Plaintiff v. Donald C. Kupperstein Defendant Executive Office of Health and Human Services of the Commonwealth of Massachusetts Plaintiff v. Donald C. Kupperstein Defendant |
| Court | U.S. Bankruptcy Court — District of Massachusetts |
David G. Baker, Boston, MA, David B. Madoff, Madoff & Khoury LLP, Foxborough, MA, for Debtor.
The plaintiffs Irene B. Schall, as the personal representative of the estate of Fred W. Kuhn, and the Executive Office of Health and Human Services of the Commonwealth of Massachusetts ("EOHHS") commenced these adversary proceedings, filing multi-count complaints against the defendant, Donald C. Kupperstein, who is the debtor in the main case. In their complaints, which rely on common factual allegations, each plaintiff seeks to have Mr. Kupperstein's bankruptcy discharge denied under Bankruptcy Code § 727(a)(4)(A) based upon Mr. Kupperstein's having "made a false oath or account" "knowingly and fraudulently, in or in connection with [his bankruptcy] case."1 See Complaint at 7-10 (count IV), Schall v. Kupperstein , Adv. No. 18-01100 (Bankr. D. Mass. July 16, 2018), ECF No. 1 []; Complaint at 25-26 (count V), Exec. Office of Health & Human Servs. v. Kupperstein , Adv. No. 18-01101 (Bankr. D. Mass. July 16, 2018), ECF No. 1 [].2
Those claims were among the counts that survived Mr. Kupperstein's previous motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). The two adversary proceedings were consolidated for a trial on the § 727(a)(4)(A) counts, and the consolidated matters are now before me on Mr. Kupperstein's motions for summary judgment and the plaintiffs’ joint motion for summary judgment as to each proceeding. Mr. Kupperstein has included supporting briefs with his motions. He has separately filed an amended statement of undisputed facts. He has also filed multiple responses to the plaintiffs’ joint motion, including an amended response that is verified, as well as a supplemental brief providing additional legal authority. The plaintiffs have filed a brief in support of their joint motion and a statement of undisputed facts. They have also filed a joint response to Mr. Kupperstein's motions and to his amended statement of undisputed facts. Mr. Kupperstein did not timely respond to the plaintiffs’ statement of undisputed facts. Thus, for the purposes of considering the plaintiffs’ summary judgment motion, their undisputed facts are deemed to have been admitted by Mr. Kupperstein.3 See Fed. R. Civ. P. 56(e)(2) ; MLBR 7056-1, 9029-3 (adopting D. Mass. L.R. 56.1). Finally, the plaintiffs and Mr. Kupperstein have filed a joint pretrial memorandum.
Having considered the parties’ filings noted above and the record as a whole, as well as the arguments of counsel at a hearing on the motions, I now set forth my analysis and conclusions.4
The parties have been embroiled in a long-running dispute that came to a head when a Massachusetts state court invalidated the 2014 transfer of real property that was part of Mr. Kuhn's probate estate and upon which EOHHS had recorded a Medicaid lien. The transfer had been orchestrated by Mr. Kupperstein, who benefited from it. As part of the state court's ruling, Mr. Kupperstein was ordered to pay money to the plaintiffs. A more complete recounting in graphic detail of the events leading up to the voiding of the real estate transfer, the orders that Mr. Kupperstein pay the plaintiffs, and Mr. Kupperstein's bankruptcy filing are found in prior decisions by this and several other state and federal courts. E.g. , In re Kupperstein , 943 F.3d 12, 15-18, 25-26 (1st Cir. 2019) ; Oct. 24, 2019 Mem., EOHHS AP, ECF No. 26. In the interest of narrative economy, I offer only those facts that are relevant to my analysis of the § 727(a)(4)(A) claims.
On January 11, 2018, Mr. Kupperstein filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code. With his petition, Mr. Kupperstein filed a statement of financial affairs ("SOFA"), schedules of assets and liabilities, and other required documents. See Pet., Case No. 18-10098, ECF No. 1.5 Separately, he filed a statement of his current monthly income. See CMI Statement, Case No. 18-10098, ECF No. 4. Signing and dating the petition by hand, Mr. Kupperstein "declare[d] under penalty of perjury that the information provided [was] true and correct." Pet. 8. Likewise, hand signing and dating a declaration regarding electronic filing, Mr. Kupperstein "declare[d] under penalty of perjury that all of the information contained in [his] Petition, Schedules, Statements and Lists ..., filed electronically, [was] true and correct." Pet. 10; see also Def.'s Mot. Summ. J. Exs. 71, Kupperstein Dep. 43:15, July 11, 2018 (confirming his signature on and understanding of the declaration).6 Mr. Kupperstein's SOFA, a declaration about his schedules, and the statement of his current monthly income all bear his electronic signature, declaring under penalty of perjury that the filings were true and correct.
Mr. Kupperstein does not claim to have misunderstood the significance of signing the bankruptcy forms. Indeed, he is not unsophisticated in such matters. Although represented by counsel in the main case and in these adversary proceedings, Mr. Kupperstein himself is an attorney admitted to practice in the Commonwealth of Massachusetts in 1985, who "is still active on an occasional basis."7 Joint Pretrial Mem. 5; see also Def.'s Mot. Summ. J. Exs. 50-55, Kupperstein Dep. 22:24-27:16, July 11, 2018 (discussing his law practice).
As detailed below, the plaintiffs have identified numerous alleged falsehoods in Mr. Kupperstein's petition, statements, and schedules, as well as during a July 2018 examination of Mr. Kupperstein under oath pursuant to Federal Rule of Bankruptcy Procedure 2004. To the extent that Mr. Kupperstein has addressed the plaintiffs’ allegations, he has generally asserted that the plaintiffs lack admissible evidence to show the falsity of his statements under oath or his having made them with knowing and fraudulent intent. Mr. Kupperstein also maintains that any false statements were not material. Apart from these generalized assertions, Mr. Kupperstein has largely neglected to address key allegations and evidence in detail despite the shifting burden of proof that applies to him with respect to claims under § 727(a)(4)(A).
Summary judgment must be granted if the moving party shows that no material fact is genuinely disputed and that, as a matter of law, the moving party is entitled to judgment in its favor. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Fed. R. Bankr. P. 7056 (). To show that no material fact is genuinely disputed, the moving party must cite materials in the record or show an adverse party's lack of sufficient admissible evidence to support a claim or defense for which it would bear the burden of proof at trial. See Fed. R. Civ. P. 56(c)(1) ; Celotex , 477 U.S. at 322-23, 106 S.Ct. 2548 ; see also Martinez v. Colon , 54 F.3d 980, 984 (1st Cir. 1995) (); Medina-Munoz v. R.J. Reynolds Tobacco Co. , 896 F.2d 5, 8 (1st Cir. 1990) ().
If the moving party meets its burden, the non-moving party cannot avoid summary judgment unless it establishes that a material fact is genuinely disputed. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do so, the non-moving party may also cite materials in the record, or the non-moving party may show that the moving party's cited materials would be inadmissible at trial or that such materials fail to establish the absence of a genuine dispute. See Fed. R. Civ. P. 56(c)(1)-(2) ; Razzaboni v. Schifano (In re Schifano) , 378 F.3d 60, 66 (1st Cir. 2004) ( ). If the non-moving party would bear the burden of proof at trial on a specific issue, including a defense, "the non-movant ... must adduce sufficient evidence to permit the trier of fact to resolve that issue in his favor." Harrington v. Simmons (In re Simmons) , 810 F.3d 852, 857, 859 (1st Cir. 2016).
The court must consider each party's cited materials but "may [also] consider other materials in the record." Fed. R. Civ. P. 56(c)(3). Those materials "and all reasonable inferences therefrom [are considered] in the light most favorable to the non-moving parties," including when considering cross-motions for summary judgment, with the court "view[ing] each motion, separately, through this prism." See Estate of Hevia v. Portrio Corp. , 602 F.3d 34, 40 (1st Cir. 2010) ; see also Blackie v. Maine , 75 F.3d 716, 721 (1st Cir. 1996) ). Ultimately, with cross-motions for summary judgment, the court "must determine based on the undisputed facts whether either the plaintiffs or the defendant[ ] deserve judgment as a matter of law." Hartford Fire Ins. Co. v. CNA Ins. Co. (Europe) , 633 F.3d 50, 53 (1st Cir. 2011).
Although "the statutory right to a discharge should ordinarily be...
To continue reading
Request your trial