Rose v. Bargeski

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MARYLAND
at Greenbelt
IN RE: 	:
:
AUDREY YVONNE BARGESKI 	: 	Case No. 01-18272PM
: 	Chapter 7
Debtor 	:
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - :
CHERYL E. ROSE, Chapter 7 Trustee 	:
Plaintiff 	:
vs. 	: 	Adversary No. 04-1432PM
:
ALBERT M. BARGESKI 	:
Defendant 	:
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - :
ALBERT M. BARGESKI 	:
Third-Party Plaintiff 	:
vs. 	:
:
AUDREY YVONNE BARGESKI 	:
Third-Party Defendant 	:
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - :
AUDREY YVONNE BARGESKI 	:
Third-Party Plaintiff 	:
vs. 	:
:
ALBERT M. BARGESKI 	:
Third-Party Defendant 	:
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - :
MEMORANDUM OF DECISION
This case comes before the court on the Motion filed by Albert M. Bargeski to dismiss
the third-party complaint filed by Audrey Yvonne Bargeski. Before ruling on the motion, the
Date signed November 16, 2004
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The attorneys of record in this adversary proceeding did not represent the parties in the1
divorce action. Had Albert’s attorney consulted with someone with a basic understanding of the
interrelationship of bankruptcy and divorce, Albert would have been protected from this action
by the Trustee.
court will summarize where it finds itself in this adversary proceeding now set for trial on
January 13, 2005.
The complaint filed by the Chapter 7 Trustee is simple enough. It seeks to avoid a post-
petition transfer effected pursuant to a Voluntary Separation and Property Settlement Agreement
dated May 21, 2002 (the “Agreement”). In that Agreement, the Debtor, Audrey Y. Bargeski,
now Audrey Y. Buckbee (sometimes “Audrey”), and her husband, Albert M. Bargeski
(sometimes “Albert”), divided the property accumulated in their 13-year marriage and dealt with
all claims each had against the other. The Trustee seeks to recover from Albert the value of
property received by him under the Agreement, that is, one-half of the former marital residence, a
pontoon boat, and an automobile. The Trustee argues that the transfers were without
consideration, and this appears true as to the estate’s interest in the property conveyed. But, the
actual consideration flowing from Albert to Audrey was substantial as one might conclude from a
reading of the letter from Albert’s lawyer to Audrey’s lawyer dated February 8, 2002. A copy of
this letter is an exhibit to Audrey’s Motion to Dismiss Third-Party Complaint. It seems that
while the Trustee is pursuing Albert for what he received under the parties’ Agreement, nothing
is being done to pursue Audrey for the property that she is said to have retained under the
Agreement. Clapp’s letter asserts that Audrey took away no less than what Albert did from the
marriage.
The Debtor filed a bankruptcy case under Chapter 13 on June 26, 2001. While the case
was pending under Chapter 13, the parties entered into the Agreement. The lawyers negotiating
this Agreement on behalf of the parties were oblivious to the implications of the pending1
bankruptcy case. Had the Debtor then exercised her absolute right to dismiss the case, as she had
the right to do pursuant to 11 U.S.C. § 1307(a), the parties would have gone on their merry way,
and this dispute would not be before this court. She did not. Instead, Audrey exercised her
absolute right to convert the case pursuant to 11 U.S.C. § 1307(a), laying the groundwork for the
action against Albert by the Trustee. An Order converting the case was entered November 21,
2002, after the conveyance of the real property in August. The court assumes that the parties
executed all necessary papers to effectuate their Agreement before conversion of the case.
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Having done all that was required of him under the Agreement, Albert was justifiably
upset by the turn of events whereby the Trustee sought to recover what Audrey had turned over
to him in consideration of all that was given up to her. He filed a third-party complaint against
Audrey seeking indemnity and damages. Audrey’s motion to dismiss his third-party complaint
was denied by Judge Akard in an Order entered August 23, 2004. Undeterred, a pleading called
a Third-Party Complaint to Determine Dischargeability of Debt was filed on Audrey’s behalf that
was countered by the Motion to Dismiss filed by Albert that is the pending motion before the
court. Audrey’s reflexive action against Albert seems more akin to a cross-claim or a
counterclaim than a third-party complaint. Whatever it is called does not make a difference.
For the reasons that caused Judge Akard to deny the motion to dismiss the third-party
complaint filed by Albert against Audrey, the court will dismiss the third-party complaint filed by
Audrey against Albert. All that it accomplishes is to restate the argument made by Audrey in her
motion to the third-party complaint that was denied by Judge Akard. In any event, Audrey’s
third-party complaint is redundant, because if Albert is unsuccessful and Audrey successful in
her argument that 11 U.S.C. § 348(d) causes Albert’s claim to be discharged, then in essence she
prevails on the issues raised by her third-party complaint.
If the Trustee prevails in his action against Albert, then the issue between Albert and
Audrey is when Albert’s causes of action arose against Audrey. Compare In re M. Frenville Co.,
744 F.2d 332, 336-37 (CA3 1984), with In re Black, 70 B.R. 645 (BC Utah 1986). This is an
interesting issue of law. However, considering all of the circumstances of this case, the parties
would be well advised to seek their own resolution of this dispute before the court makes a
resolution for them early next year.
An appropriate order will be entered.
cc:
James M. Hoffman, Esq., 11921 Rockville Pike, Suite 300, Rockville, MD 20852
Harry T. deMoll, Esq., 129 West Patrick Street, #3, Frederick, MD 21701
Laura J. Margulies, Esq., 6205 Executive Blvd., Rockville, MD 20852
Cheryl E. Rose, Trustee, 50 W. Edmonston Drive, Suite 600, Rockville, MD 20852
End of Memorandum
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