Rafail Theokary

UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 7
:
RAFAIL THEOKARY, 	: 	Bankruptcy No. 07-11008DWS
:
Debtor. 	:
MEMORANDUM OPINION
BY: 	DIANE WEISS SIGMUND, United States Bankruptcy Judge
Before the Court is the Debtor’s Amended Motion to Reopen the above-captioned
bankruptcy case so that Debtor may file an adversary proceeding alleging willful violation
of the automatic stay by the parties identified below. 	For the reasons stated below, the
Motion shall be granted.
BACKGROUND
Debtor filed this Chapter 7 bankruptcy case on February 16, 2007. The Chapter 7
Trustee filed a Report of No Distribution and Debtor was discharged on January 14, 2008.
The case was closed on January 17, 2008.
Debtor wants to reopen this case to commence an adversary proceeding against
certain New Jersey individuals and businesses: Tom Shay, Eric Abbbatiello d/b/a Abbitiello
Racing Stables, Showplace Farms, and Gaitway Farms (the “Proposed Defendants”) to seek
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1 Those requirements are clearly stated in this Court’s standing Order M-3-3005 and
amendments thereto, which are posted on the Court’s website. The Order mandates that
attorneys file electronically or seek a temporary waiver or extension. Attorneys granted
waivers/extensions are allowed to submit papers if they are accompanied by a disk or CD-ROM
containing the documents in portable document format (PDF). I note that the docket reflects yet
another attempt by Pacaro to submit papers to the Clerk’s office on December 3, 2008 without
following these procedures. Pursuant to the Court’s standing order, these documents will also be
stricken.
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damages for willfully violating the automatic stay of §362(a). The Motion alleges that the
Proposed Defendants sold certain horses in which Debtor allegedly has a lease interest at a
stableman’s lien sale on Feb. 19, 2007, i.e. three days after his bankruptcy case was filed.
At the hearing on the Motion, Defendants were represented by defendant Jeffrey
Pacaro, Esquire (“Pacaro”). While Pacaro mailed a written “Certification” in response to the
Motion to the Clerk’s office, this documentary submission contravened the mandatory
electronic filling requirements imposed upon attorneys filing in this Court. After notice of
same, he failed to cure the filing defect. As such, the Certification was stricken from the
record. Doc. 71 (Order entered 11/17/2008). 1 At the hearing on November 4, 2008, the
Debtor objected to Paccaro’s participation because he was not a member of the bar of this
Court. This deficiency was remedied when the former Chapter 7 trustee, a member of our
bar, moved him pro hac vice. In allowing Paccaro to appear, I cautioned him that he must
comply with the local rules and procedural Orders of this Court, including the mandatory
electronic filing procedure. I also allowed him an additional week to supplement the record,
i.e. until November 11, 2008, but again expressly instructed him to follow the electronic
filing requirements of the Court. Pacaro did not electronically file any supplementation.
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DISCUSSION
Pursuant to section 350(b), “a case may be reopened in the court in which such case
was closed to administer assets, to accord relief to the debtor or for other cause.” Whether
to reopen a closed bankruptcy case is committed to the discretion of the bankruptcy court.
See, e.g., Donaldson v. Bernstein, 104 F.3d 547, 551 (3d Cir.1997); Judd v. Wolfe, 78 F.3d
110, 116 (3d Cir.1996).
In general, when a former debtor seeks to reopen a closed bankruptcy case, the court
should consider a variety of non-exclusive factors including: the length of time that the case
has been closed, see Matter of Case, 937 F.2d 1014, 1018 (5th Cir. 1991), whether a non-
bankruptcy forum, such as state court, has the ability to determine the dispute to be posed by
the debtor were the case reopened, see, e.g. In re Tinsley, 98 B.R. 791 (Bankr. S.D. Ohio
1989); whether prior litigation in bankruptcy court implicitly determined that state court
would be the appropriate forum to determine the rights, post-bankruptcy, of the parties;
whether any parties would be prejudiced were the case reopened or not reopened; the extent
of the benefit which the debtor seeks to achieve by reopening; and whether it is clear at the
outset that the debtor would not be entitled to any relief if the case were reopened. 	See
generally Arleaux v. Arleaux, 210 B.R. 148, 149 (B.A.P. 8th Cir. 1997), aff’d, 149 F.3d 1186
(8th Cir. 1998) (Table). This Court has previously refused to reopen a case where the cause
of action underlying the motion is patently without merit. In re Redcay, 2007 WL 4270378
(Bankr. E.D. Pa. Dec. 3, 2007). 	See also In re Janssen, 396 B.R. 624, 634 (Bankr. E.D.
Pa.2008) (recognizing court’s discretion to refuse reopening case where movant would
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2 In support of the Motion, Debtor sought to have me consider a one-page excerpt of the
transcript of a hearing purportedly before a New Jersey state court judge. Exhibit M-1. As that
single page was insufficient for me to determine what judgment was at issue and how it related
to a violation of the automatic stay in this case, I allowed Debtor (as I did Paccaro) to
supplement his record by filing the full transcript. 	That supplementation was also not made, and
therefore in deciding this preliminary motion, I do not consider the partial transcript as support
for reopening.
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clearly not be entitled to the relief sought after reopening); In re Carberry, 186 B.R. 401, 402
(Bankr. E.D. Va. 1995) (a bankruptcy “court should not reopen a bankruptcy case where it
appears that to do so would be futile and a waste of judicial resources”).
The Motion seeks relief for violation of the automatic stay. It appears that the action
Debtor complains of was taken after the bankruptcy case was filed. 	Stay violations are
clearly matters for bankruptcy court jurisdiction. 	While the state courts have concurrent
jurisdiction to determine the applicability of the automatic stay, see, e.g., In re Steward, 338
B.R. 654, (Bankr. D. N.J. 	2006), 	a cause of action seeking redress for violation of or
seeking enforcement of the automatic stay is generally held to be within the exclusive
jurisdiction of the Bankruptcy Court. See, e.g., In re Lucas, 312 B.R. 559, 571 (Bankr. D.
Md. 2004); In re Startec Global Communications Corp., 292 B.R. 246, 254 (Bankr. D. Md.
2003). Thus, I may not defer to the state court on this matter. Nor is the amount of time that
has elapsed, while seven months, so protracted to preclude the relief being sought.
While the above factors point to reopening the case, I questioned whether any action
was taken against the Debtor that would have been protected by the stay. 	Based on the
record made, I am still skeptical.2 However, I cannot state with certainty that no relief is
possible. Had Pacaro taken advantage of the opportunity presented to him to make a record
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in support of his objection, I might have been able to conclude otherwise. Accordingly I will
reopen the case and allow Debtor a brief window of opportunity to file the requested
adversary proceeding. 	This in no way prejudices the Defendants who will have full
opportunity to respond to the complaint, just as they were given opportunity to respond to
the Motion. Nothing in this Memorandum shall be construed as a finding with respect to the
merits of Debtor’s allegations of a stay violation.
In addition, while it should go without saying, I fully expect any further filings to be
made and served in compliance with the Federal Rules of Bankruptcy, and the Court’s Local
Rules and Standing Orders.
An Order consistent with this Memorandum Opinion shall be entered.
DIANE WEISS SIGMUND
U.S. Bankruptcy Judge
December 17, 2008
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