Tomey v. Dizinno (In re Dizinno)

Citation532 B.R. 231
Decision Date11 June 2015
Docket NumberAdv. No: 1:15-ap-00012-MDF.,Case No. 1:14-bk-05291-MDF.
PartiesIn re: Paul W. Dizinno, Debtor Mark Steven Tomey, Sr., Plaintiff v. Paul W. Dizinno, Defendant
CourtUnited States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Middle District of Pennsylvania

532 B.R. 231

In re: Paul W. Dizinno, Debtor
Mark Steven Tomey, Sr., Plaintiff
v.
Paul W. Dizinno, Defendant

Case No. 1:14-bk-05291-MDF.
Adv. No: 1:15-ap-00012-MDF.

United States Bankruptcy Court, M.D. Pennsylvania.

Signed June 11, 2015


[532 B.R. 233]


Mark Steven Tomey, Sr., Manchester, MD, pro se.

Brent Diefenderfer, CGA Law Firm, York, PA, for Defendant.

[532 B.R. 234]


OPINION

Mary D. France, Chief Bankruptcy Judge

On January 22, 2015, Mark Steven Tomey (“Tomey”), an unrepresented, unsecured creditor, filed a motion requesting the Court to “preclude the debt owed him by Paul Dizinno, or squash his request for bankruptcy relief.” The claim for relief is based on the failure of Paul Dizinno (“Debtor”) to repay a loan or series of loans totaling $4400. Tomey requested the Court either to except his debt from discharge in Debtor's case under 11 U.S.C. § 523(a)(2), or deny Debtor's discharge under 11 U.S.C. § 727(a)(3), (4), and (5). Therefore, the Court will treat the “motion” as having commenced an adversary proceeding under Federal Rule of Bankruptcy Procedure (“Fed. R. Bankr. P.”) 7001.1

Before the Court is Debtor's motion to dismiss Tomey's complaint.2 Debtor asserts two grounds for dismissal: (1) that the complaint fails to comply with the bankruptcy rules governing the format for pleadings as described in Fed. R. Bankr. P. 9010 and 9011; and (2) that the complaint fails to state a claim upon which relief can be granted under Fed. R. Bankr. P. 7012(b)(6). Debtor further requests that the Court strike Tomey's demand for a jury trial. For the reasons discussed below, the motion to dismiss will be granted but Tomey will be afforded leave to file an amended complaint addressing the deficiencies cited in this Opinion. However, the motion to strike the demand that this matter be heard by a jury will be granted, as no right to a jury attaches to Tomey's claims for relief.

I. Procedural History

Debtor filed the instant Chapter 7 bankruptcy petition on November 14, 2014. Tomey filed his complaint without paying the requisite filing fee for an adversary proceeding. On January 22, 2015, the Court issued a notice directing that the fee be paid within seven days or the adversary proceeding would be dismissed. Tomey failed to pay the fee and the proceeding was dismissed on February 2, 2015. After Tomey requested reinstatement of the case and paid the filing fee, the adversary proceeding was reinstated.

On April 7, 2015, Debtor filed the motion that is now before me to dismiss Tomey's complaint. Tomey filed an “Answer/Response” and a “Supplemental Answer/Response” on April 22, 2015. The matter is ready for disposition. 3

II. Factual Background

Debtor asked Tomey for a loan to help pay his property taxes. Tomey agreed, but the agreement was not reduced to writing. Thereafter, Debtor also requested and obtained additional “small loans” from Tomey, which Debtor promised to

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repay, but again nothing was reduced to writing. The date each loan was made and the exact amount of each loan is not specified in the complaint, but Debtor does not dispute that the aggregate amount of all loans extended by Tomey was $4400.

To persuade Tomey to extend the loans, Debtor promised to “do whatever it took to get caught up with his debts and then pay back” the loans. (Complaint, p. 2). Debtor further promised to “endeavor to pay back the $4400 in full within one year.” (Complaint, p. 11). Debtor also promised to look for supplemental work or a higher-paying job and to decrease his living expenses to facilitate repayment. Tomey asserts that he made the loans to Debtor in reliance on these assurances.

If true, despite these promises Debtor did not obtain supplemental work or a higher-paying job. He made personal expenditures that Tomey considered imprudent. He sold personal assets, such as a used Chevrolet pick-up truck, that were worth more than the sale price. In Tomey's view, Debtor did not adjust his lifestyle or decrease his living expenses in any significant way as promised. Further, Tomey asserts that after receiving the loans, Debtor failed to repay any of the amounts borrowed or even offer to repay the amounts borrowed.

III. Discussion
A. Should the complaint be dismissed for failing to comply with the pleading requirements of the Federal Rules of Bankruptcy Procedure?

Debtor asserts that Tomey's complaint should be dismissed because it fails to comply with Fed. R. Bankr. P. 9010(b) and Fed. R. Bankr. P. 9011. Rule 9010(b) requires a party to assert claims against the opposing party in numbered paragraphs and, equally important, to limit each paragraph “as far as practicable to a single set of circumstances.” Fed. R. Bankr. P. 9010(b).

Tomey's complaint consists of a fourteen-page narrative without numbered paragraphs. The narrative includes assertions unrelated to the loan transactions or to Debtor's failure to repay the loans. For instance, numerous paragraphs are devoted to discussions of Tomey's own financial problems or Debtor's relationship with his parents, matters wholly irrelevant to a case under either § 523(a)(2)(A) or § 727(a)(3), (4) or (5). As currently presented, it is impossible for Debtor to respond coherently to Tomey's complaint. Therefore, the Court will issue an order providing that the complaint will be dismissed unless Tomey files within thirty days an amended complaint with numbered paragraphs limited to a single topic, asserting the facts necessary to establish a basis for the Court either to except Tomey's loan from Debtor's discharge or deny Debtor's discharge.

Fed. R. Bankr. P. 9011 provides that “a party who is not represented shall sign all papers” and that any unsigned paper shall be stricken unless omission of the signature is corrected promptly after being brought to the attention of the pro se party. In this case, Tomey did not sign the complaint filed with the Court, although a signature line appears at the bottom of the last page. On April 7, 2015, Debtor filed his motion to dismiss pointing out the absence of Tomey's signature, yet as of the date of this Opinion, Tomey has not corrected this omission. Accordingly, it would be appropriate to strike the complaint because it is not signed. Because Tomey otherwise will be granted leave to amend the complaint to conform to Fed. R. Bankr. P. 9010, if he files an amended complaint, it must be signed before it is filed with the Court. If it is not signed,

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the amended complaint will be dismissed without further notice or hearing.

B. Should the complaint be dismissed for failing to state a claim on which relief can be granted under Fed. R. Bankr. P. 9012.

Fed. R. Bank. P. 9012 incorporates Rule 12 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). Fed. R. Civ. P. 12(b)(6) requires a court to dismiss any complaint that fails on its face to “state a claim upon which relief can be granted.” The purpose of the rule is “to test the legal sufficiency of the complaint.” Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir.2003). When considering whether to dismiss a complaint as legally insufficient, a court must “accept all well-pleaded allegations in the complaint as true, and view them in the light most favorable to the plaintiff.” Carino v. Stefan, 376 F.3d 156, 159 (3d Cir.2004). The court is not required to find that the plaintiff is likely to prevail at trial, only whether “under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002).

The Court has experienced the same difficulty as Debtor in identifying the facts underlying Tomey's claim for relief because of his failure to properly set forth the allegations as required by the Rules. This is true even though the Court has read the allegations liberally and has applied a less stringent standard because Tomey is filing pro se. SeePerlberger v. Caplan & Luber, LLP, 152 F.Supp.2d 650, 653 (E.D.Pa.2001) (citing Haines v. Kerner, 404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Gibbs v. Roman, 116 F.3d 83, 86 n. 6 (3d Cir.1997)) (holding that the pleadings by pro se parties are held to a less stringent standard than pleadings drafted by counsel). “Although the standard used to evaluate a motion to dismiss in a pro se action is a liberal one, the court must still endeavor to separate ‘pleadings that ... are no more than conclusions' from ‘well-pleaded factual allegations' that are entitled to a presumption of veracity.” Obotetukudo v. Clarion University of Pennsylvania, Civil Action No. 13–0639, 2015 WL 1524460, *1 n. 1 (W.D. Pa. April 2, 2015) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

For factual allegations to be considered “well-pleaded,” the averments must “raise a reasonable expectation that discovery will reveal evidence of [each] necessary element” of the Plaintiff's case. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556...

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