Parker (Trustee) v. Banks

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
In Re:
Victor B. Banks, Jr.,
Debtor.
Ericka S. Parker, Trustee,
Plaintiff,
v.
Victor B. Banks, Jr.,
Defendant.
) 	Case No.: 11-31229
)
) 	Chapter 7
)
) 	Adv. Pro. No. 11-3169
)
) 	Hon. Mary Ann Whipple
)
)
)
)
)
)
)
)
MEMORANDUM OF DECISION AND ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
This adversary proceeding is before the court on Plaintiff’s unopposed Motion for Summary
Judgment [Doc. # 11]. Plaintiff is the Chapter 7 Trustee in Defendant/Debtor’s underlying Chapter 7 case.
In her complaint, Plaintiff objects to Defendant’s discharge under 11 U.S.C. § 727(a)(6)(A). The district
court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §1334(b) as a civil proceeding
arising under Title 11. This proceeding has been referred to this court by the district court under its general
order of reference. 28 U.S.C. § 157(a); General Order 2012-7 of the United States District Court for the
Northern District of Ohio. The court has jurisdiction over this adversary proceeding under 	28 U.S.C.
§1334(b) and the general order of reference entered in this district. Proceedings to determine objections to
the record of the United States Bankruptcy Court for the Northern District of Ohio.
of this court the document set forth below. This document has been entered electronically in
The court incorporates by reference in this paragraph and adopts as the findings and orders
Dated: May 31 2012
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discharge are core proceedings that this court may hear and determine. 28 U.S.C. § 157(b)(1) and (b)(2)(J).
For the reasons that follow, Plaintiff’s Motion will be granted.
FACTS
The following undisputed facts are set forth in Plaintiff’s affidavit. 	Plaintiff is the trustee in
Defendant’s underlying Chapter 7 case that was filed on March 12, 2011. Defendant appeared at the first
meeting of creditors on June 2, 2011, and was unable to fully answer Plaintiff’s questions. His testimony
at the meeting was vague, and Defendant was uncooperative. The meeting of creditors was continued to
June 16, 2011, for further clarification and evidence to support Defendant’s testimony, which Defendant
failed to provide. On July 12, 2011, the court entered an order directing Defendant to turn over to Plaintiff
on or before August 3, 2011, certain documents, including a copy of his 2010 W-2 and/or 1099, a copy of
his pay advices for the sixty days prior to filing his bankruptcy petition, and evidence of the source of the
funds for bank deposits made on November 15, 2010, and February 14, 2011, along with an accounting as
to how the money was spent. [Doc. # 23]. To date, Debtor has not provided the documents required under
the court’s order.
The court takes judicial notice of the fact that its July 12, 2011, order was sent by the Bankruptcy
Noticing Center to Debtor on July 14, 2011, by first class mail at the address set forth in his bankruptcy
petition. 1 Without denying any allegation in the complaint, the answer filed on behalf of Defendant by his
attorney states that “Debtor has disappeared and has not been in contact with his family or his attorney’s
office since approximately August 6, 2011.” [Doc. # 5].
LAW AND ANALYSIS
I. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, made applicable to this proceeding by
Federal Rule of Bankruptcy Procedure 7056, summary judgment is proper only where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). In reviewing a motion for summary judgment, however, all reasonable inferences “must be viewed
in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-88 (1986). The party moving for summary judgment always bears the initial
responsibility of informing the court of the basis for its motion, “and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any’
1 The court takes judicial notice of the contents of its case docket. Fed. R. Bankr. P. 9017; Fed. R. Evid. 201(b)(2); In
re Calder, 907 F.2d 953, 955 n.2 (10th Cir. 1990); St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1171-
72 (6 th Cir. 1979) (stating that judicial notice is particularly applicable to the court’s own records of litigation closely related to
the case before it).
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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Where the moving party has met its initial burden, the adverse party “may not rest
upon the mere allegations or denials of his pleading but . . . must set forth specific facts showing that there
is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue
for trial exists if the evidence is such that a reasonable factfinder could find in favor of the nonmoving party.
Id. Although a party fails to respond to a motion for summary judgment, the court must nevertheless satisfy
itself that the moving party has met the demands of Rule 56 before granting the motion. See Guarino v.
Brookfield Twp. Trustees, 980 F.2d 399, 407 (6th Cir. 1992).
II. 11 U.S.C. § 727(a)(6)(A)
Under 11 U.S.C. § 727, an individual debtor is entitled to a discharge unless one of the enumerated
exceptions to discharge specified in that section is established. The party objecting to the discharge has the
burden of proving by a preponderance of the evidence that an exception applies. Keeney v. Smith (In re
Keeney), 227 F.3d 679, 683 (6th Cir. 2000). 	Plaintiff objects to Debtor’s Chapter 7 discharge pursuant to
§ 727(a)(6)(A), which provides that a debtor who “has refused . . . to obey any lawful order of the court,
other than an order to respond to a material question or to testify” must be denied a discharge in bankruptcy.
The word “refused” as used in § 727(a)(6)(A) must be distinguished from the word “failed” that is
used elsewhere in § 727(a). As a consequence, something more than a mere failure to comply with a court
order must be established to deny a debtor’s bankruptcy discharge. Yoppolo v. Freeman (In re Freeman),
293 B.R. 413, 415 (Bankr. N.D. Ohio 2002). Courts have determined that the showing necessary to deny
a debtor a discharge for refusing to obey an order is the same as that for determining whether to hold a party
liable for civil contempt. Id.; Hazlett v. Gorshe (In re Gorshe), 269 B.R. 744, 747 (Bankr. S.D. Ohio 2001);
United States v. Richardson (In re Richardson), 85 B.R. 1008, 1011 (Bankr. W.D. Mo. 1988). In a civil
contempt proceeding, three elements must be established: “(1) the alleged contemnor had knowledge of the
order which he is said to have violated; (2) the alleged contemnor did in fact violate the order; and (3) the
order violated must have been specific and definite.” Freeman, 293 B.R. at 415-16; see Smith v. Jordan (In
re Jordan), 521 F.3d 430, 433 (4th Cir. 2008) (stating that the party objecting to discharge satisfies her
burden under § 727(a)(6)(A) by demonstrating that the debtor received the order in question and failed to
comply with its terms and that such a showing then imposes upon the debtor an obligation to explain his
non-compliance).
In this case, notice of the court’s July 12, 2011, order requiring Defendant to turn over certain
required documents was sent to him by the Bankruptcy Noticing Center on July 14, 2012, before he
absented himself from contact with counsel and his family. 	“The common law has long recognized a
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presumption that an item properly mailed was received by the addressee.” Bratton v. Yoder Co. (In re Yoder
Co.), 758 F.2d 1114, 1118 (6th Cir. 1985). The court also notes from the docket in the underlying Chapter
7 case that it began to receive return mail of documents sent by the court through the Bankruptcy Noticing
Center to Debtor, but the first document returned was the court’s order granting the Trustee’s application
to employ counsel, which was entered on September 7, 2011, after the July 12 order in issue. [See Doc. #
4]. The July 12, 2011, order sent to Defendant by the court is not in the returned mail docketed by the court.
[Id.]. Having failed to rebut the presumption of receipt, and the Chapter case docket and record not showing
the order having been returned to the court as undeliverable, there is no genuine dispute that Defendant had
knowledge of the court’s July 12, 2011, order.
As established by Plaintiff’s affidavit, there is also no dispute that Defendant violated the order by
not turning over to Plaintiff the required documents.
And finally, the court’s order meets the “specific and definite” requirement as it specifically
identifies the documents to be turned over by Defendant and states the date by which they must be provided
to Plaintiff. Thus, there is no dispute that Plaintiff has met her burden with respect to each element under
Freeman.
THEREFORE, for the foregoing reasons, good cause appearing,
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. # 11] be and hereby is,
GRANTED.
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