Tworog v. Tworog (In re Tworog)
| Decision Date | 20 January 2023 |
| Docket Number | BK 18-11752,A.P. 20-01008 |
| Parties | In re: John J. Tworog, Debtor v. William Burke, Defendant. John J. Tworog, Plaintiff, |
| Court | United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Rhode Island |
DECISION AND ORDER ON MOTION TO REOPEN CASE TO AMEND SCHEDULES AND TO RECONSIDER ORDER
Before the Court is plaintiff/debtor John J. Tworog's Motion to Reopen Bankruptcy Petition and Amend Schedules ("Motion to Reopen") (BK No. 18-11752, Doc. #209) and Motion to Reconsider Order ("Motion to Reconsider") (A.P. No 20-01008, Doc. #225)[1] filed on October 17, 2022, invoking Bankruptcy Rule 5010 for the Motion to Reopen and Bankruptcy Rule 9024 for the Motion to Reconsider (collectively the "Motions").[2]
This adversary proceeding arises out of the vexatious divorce proceedings between Mr. Tworog and his former, now deceased wife Dolores Tworog ("Dolores"). The defendant William Burke is an attorney who represented Dolores at some point during the divorce proceedings before the Rhode Island Family Court ("Family Court"). Mr. Tworog, a former lawyer, is appearing pro se in this adversary proceeding. This is his second attempt to get the Court to reconsider its May 14, 2021 decision and order denying the bulk of Mr Tworog's first motion to amend the complaint commencing this proceeding ("May 2021 Decision," Doc. #73). It is also his second try at reopening his bankruptcy case in an effort to end-run that decision. (See BK No. 18-11752, Doc. #199). Once again the Motions fail.
Mr. Burke filed an initial objection to the Motions (Doc. #227), and later, as directed by the Court, supplemented his objection with a more detailed memorandum (Doc. #251).
After reviewing the Motions and the various related filings, the Court concludes that the Motion to Reconsider must be denied for reasons that will be explained in detail. As a corollary, the Motion to Reopen to amend schedules to assert an alleged stay violation claim against Mr. Burke dating back to 2013 also must be denied as futile.
The relevant procedural history of this bankruptcy case and the adversary proceeding bears heavily in the Court's consideration of the Motions. Accordingly, a rather lengthy discussion of the same is provided. During the last 10 years, Mr. Tworog has filed five separate bankruptcy cases before this Court.[4] Relevant to the present proceeding is Mr. Tworog's 2013 bankruptcy case, during which this Court determined that the automatic stay under § 362(a) was in effect and halted, at least temporarily, the Family Court's adjudication of a contested matter during the divorce proceedings. (See BK No. 13-12130, Doc. #13). That case was short-lived and dismissed for failure to file required documents.
On October 23, 2018, Mr. Tworog filed the present bankruptcy case. On Schedule A/B (listing of assets), he disclosed the following claim: "Suit against Dolores Tworog, William Burke, and State of RI for Intentional Infliction of Emotional Distress." (BK No. 18-11752, Doc. #20, ⁋33). Ultimately, Mr. Tworog completed his obligations as a debtor and received his discharge. Thereafter, he filed a motion under Bankruptcy Code § 522(f) to avoid a judicial lien in the amount of $50,000, plus accruing interest, awarded to Mr. Burke by the Family Court for attorney's fees in connection with a contempt sanction. The lien was recorded against Mr. Tworog's personal residence. Solely as a precaution, Mr. Tworog also commenced this adversary proceeding attacking the lien in the event he was not successful in avoiding it in his underlying bankruptcy case. Mr. Tworog did indeed prevail and Mr. Burke's judgment lien was avoided under § 522(f) as impairing Mr. Tworog's homestead exemption.
On October 19, 2020, the underlying bankruptcy case was closed as fully administered. The adversary proceeding remained open for adjudication.
Seeking continuation of this adversary proceeding to recover funds from Mr. Burke, Mr. Tworog filed a motion to amend his original complaint. (Doc #26). Through such amendment, he sought to assert various claims against Mr. Burke, including a claim that Mr. Burke had violated the automatic stay on an unspecified date while his 2013 bankruptcy case was pending ("2013 Stay Violation Claim"). The motion was devoid of legal citation and adequate factual allegations to support it, and most significantly, was not accompanied by a proposed amended complaint. Objecting to the motion, Mr. Burke raised the doctrine of judicial estoppel, arguing that the schedules filed in the present bankruptcy case did not disclose the 2013 Stay Violation Claim. (Doc. #31, ⁋4). In his reply to the objection, Mr. Tworog did not disagree that he failed to list this claim on his schedules; rather, he argued that he had "outlined" these claims to the chapter 7 trustee at the § 341 meeting of creditors. (Doc. #43, ⁋9).
After the motion to amend the complaint was denied without prejudice, Mr. Tworog filed a proposed amended complaint describing several claims against Mr. Burke, among them, the alleged 2013 Stay Violation Claim. (Doc. #64, ⁋ 11). Supplementing his original objection, Mr. Burke again argued that Mr. Tworog "failed to disclose any potential claim against Mr. Burke on his Bankruptcy schedules[.]" (Doc. #70, ⁋ 5). Although he filed a reply, Mr. Tworog once again did not refute the charge that he failed to list the claim on his schedules. (Doc. #71, ⁋ 18).
In its decision and order entered on May 14, 2021, the Court permitted Mr. Tworog to amend the complaint only as to a claim against Mr. Burke for a stay violation that allegedly occurred during the present case in October 2018 ("2018 Stay Violation Claim"). Relevant to the current Motions before the Court, the amendment of the complaint to pursue the 2013 Stay Violation Claim was denied as futile because it is a prepetition claim that was not disclosed on the 2018 bankruptcy schedules. Consequently, the Court determined, among other reasons, that Mr. Tworog is judicially estopped from pursuing that claim in this adversary proceeding. (Doc. #73, p. 8).[6]
Obviously dissatisfied with the Court's ruling, on May 28, 2021, Mr. Tworog filed his first motion to reconsider the May 2021 Decision (Doc. #80), as well as another motion to amend and make additional findings (Doc. #81). The substance of both motions were identical and they simply stated in their entirety:
The Court denied both motions, primarily for failure to "establish a manifest error of law or fact or to present newly discovered evidence that warrants" alteration of the May 2021 Decision. See In re Witkowski, 523 B.R. 300, 308 (B.A.P. 1st Cir. 2014) (). (Doc. #89, p. 4).
On June 21, 2022, over one year after the Court's May 2021 Decision and the day before the scheduled trial on the 2018 Stay Violation Claim, Mr. Tworog filed an expedited motion to reopen his bankruptcy case in order to amend his schedules to clearly list the 2013 Stay Violation Claim. (BK No. 18-11752, Doc. #199). In the motion, Mr. Tworog presented, for the first time to this court, his argument that his listing of a claim of "intentional infliction of emotional distress" against Mr. Burke on Schedule A/B is one and the same with the 2013 Stay Violation Claim and the Court erred in applying the doctrine of judicial estoppel to prevent him from amending the complaint to assert that claim.
During the day and a half trial, Mr. Tworog attempted to raise the 2013 Stay Violation Claim addressed in his first motion to reopen. However, he was barred from doing so because the 14-day objection period on that motion had not expired. Mr. Burke timely objected to this first motion to reopen (BK No. 18-11752, Doc. #200), Mr. Tworog filed a response (BK No. 18-11752, Doc. #201), and the Court held a hearing on the motion on August 10, 2022. In a bench decision on the record, the Court denied the first motion to reopen on several grounds, including that the motion was futile in light of the May 2021 Decision determining that Mr. Tworog was estopped from pursuing the claim before this Court. (BK No. 18-11752, Doc. #204).
During the hearing Mr. Tworog maintained that he had previously raised the argument that his scheduling of the "intentional infliction of emotional distress" claim was intended as and sufficiently described the 2013 Stay Violation Claim. Although the Court had carefully reviewed the record and advised Mr. Tworog that it could not find this argument asserted in any of his prior filings, Mr. Tworog was given an opportunity to prove the Court wrong. He was given a brief period to file a statement informing the Court of the filings or hearings where he had previously raised this argument. (BK No. 18-11752, Doc. #205). He subsequently filed a response which failed to provide a citation to either the record or a prior filing in which he had previously made this argument-that the listing of a claim against Mr. Burke for "intentional infliction of emotional distress" is the equivalent of listing the 2013 Stay Violation Claim. (BK No. 18-11752, Doc. #207).[7]
This finally brings us to the present Motions.
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