Robert A. Gatta

1
UNITED STATES BANKRUPTCY COURT
FOR THE
DISTRICT OF MASSACHUSETTS
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In re
ROBERT A. GATTA, JR., 	Chapter 7
Debtor 	Case No. 05-20524-JNF
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MEMORANDUM
I. INTRODUCTION
The matters before the Court are the Debtor’s Motion to Avoid Judicial Lien on
Residential Real Estate (the “Lien Avoidance Motion”) and the Opposition to the Motion
filed by Dianne and Geleme Pierre (the Pierres). The Pierres object to the Debtor’s use of
11 U.S.C. § 522(f)(1) to avoid a judicial lien they obtained against property located at 174
Jefferson Avenue, Everett, Massachusetts (the Everett Property”), owned jointly by the
Debtor, Robert A. Gatta, Jr. (“Gatta” or the “Debtor”), and Sandra D. Corneau (“Corneau”),
as joint tenants with right of survivorship. The Pierres assert that the Everett Property is
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not the Debtor’s principal residence, but rental property that he does not occupy. The issue
presented is whether the Debtor occupied or intended to occupy the Everett Property as
his principal residence at the time he recorded a declaration of homestead pursuant to
Mass. Gen. Laws ch. 188, § 1 on September 20, 2005, three weeks before he filed a voluntary
petition under Chapter 7 of the Bankruptcy Code. The issue is complicated by the Debtor’s
claim that he lives part-time in two places, namely at the Everett Property where he stays
with his daughter several days per week and also at the Revere, Massachusetts home of his
wife, whom he married on July 30, 2005, approximately seven weeks before he executed
the declaration of homestead.
The Court conducted an evidentiary hearing with respect to the Lien Avoidance
Motion and the Pierres’ Opposition on January 8, 2007. Three witnesses testified and 12
exhibits were introduced in evidence. The Court now makes its findings of fact and rulings
of law in accordance with Fed. R. Bankr. P. 7052.
II. FACTS
The Debtor acquired his interest in the Everett Property by Quitclaim Deed on
September 30, 1999. He took title to the Everett Property with Corneau, with whom he had
a long-term relationship and a teenage daughter. 	The Everett Property contains three
apartments. The Debtor and Corneau shared one apartment until at least January of 2004.
He and Corneau continue to share expenses associated with the Everett Property. Corneau
testified that the Debtor gives her “money and child support checks separately.” (Tr. p. 20).
Corneau, however, pays the electric bill which has an outstanding balance of $3,300.00.
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Although originally employed as a computer programer and truck driver, the
Debtor eventually went into the construction business, doing business as Excalibur
Construction, and obtained a Construction Supervisor’s license from the Massachusetts
Board of Building Regulations. Two licenses were submitted in evidence. The first, which
expired on September 5, 2005, lists Gatta’s address as 174 Jefferson Avenue, Everett,
Massachusetts - - the Everett Property. 	The second, which remains in effect, lists his
address as 544 Washington Ave., Revere, Massachusetts. That address is the home and
business address of his spouse, Kimberly Wall (“Wall”). 	Wall and her mother own a
corporation known as All The Best Construction Company, Inc. The Debtor is its treasurer
and has check writing authority. The Debtor testified at his deposition, the transcript of
which was submitted in evidence, that he does some contract work for the company,
adding: “I farm myself out, basically, I’m a subcontractor.”
On or around December 17, 2003, the Debtor and the Pierres executed a written
contract for a project located at 160 Garland Street, Everett, Massachusetts. The Debtor
estimated the cost of the project cost at $147,000.00. Gatta did not complete the work, and
the Pierres eventually commenced a civil action against him in the Middlesex Superior
Court Department of the Massachusetts Trial Court. Prior to commencing suit, however,
the Pierres’ counsel attempted to deliver a certified “Chapter 93A letter,” dated February
17, 2004, to the Debtor using the address of the Everett Property. The letter was unclaimed
and was returned to the Pierres’ counsel on or around March 6, 2004.
On January 13, 2004, approximately one month before the Pierres’ counsel sent Gatta
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a letter pursuant to Mass. Gen. Laws ch. 93A, Corneau obtained an Abuse Prevention
Order against the Debtor from the Malden District Court. The order, violation of which
was punishable by imprisonment or fine, required the Debtor, to, among other things,
“immediately leave and stay away from the plaintiff’s residence.” Two days later, Corneau
obtained a modification of the order which awarded her custody of Amanda Gatta and
required the Debtor not to contact Amanda “either in person, by telephone, in writing or
otherwise, either directly or through someone else, and to stay at least 50 yards away from
them unless you receive written permission from the Court to do otherwise.” 	The
restraining order was served, in hand, on the Debtor at 544 Washington Ave., Revere,
Massachusetts. According to Corneau, she believed that Gatta was living there at that time
because she had found out that he had been seeing Wall. (Tr. p. 14).
Approximately 10 days after obtaining the restraining order, Corneau requested the
Malden District Court to vacate the order. 	On January 26, 2004, the court vacated the
restraining order. The Debtor testified that after the issuance of the restraining order he
“was out of the house approximately about three and a half months” . . . “because of - -
first, originally because of the restraining order and then also because of the fact that we
weren’t getting along, I was actually staying in motels.” (Tr. p. 30). Corneau, on the other
hand, testified that Gatta was living with her in February of 2004.
The Pierres obtained a default judgment against Gatta from the Middlesex Superior
Court on December 14, 2004. Prior to the entry of judgment, the Debtor, on December 12,
2004, appeared at an assessment of damages hearing in the Superior Court. In attempting
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to remove the default, Gatta admitted that he told the Superior Court judge “I had a
restraining order at the time and I was res - - I was staying at - - I may have said 544
Washington Ave. I’m not sure.” On cross-examination, the Debtor was asked whether the
restraining order was in effect in December of 2004. Initially, he admitted that there was
no restraining order in effect in December of 2004, stating: “Right. In December 2004 I was
living in Jefferson Ave.” 	(Tr. p. 32). He then contradicted himself, insisting that the
restraining order, which had been vacated on January 26, 2004, was still in effect. (Tr. p.
33). Indeed, he brought the copy of the restraining order to the hearing before the Superior
Court. Additionally, the Debtor testified that he was “out of the house before Christmas
[of 2004].” (Tr. p. 33). Because the Debtor was unsuccessful in persuading the court to
remove the default judgment entered against him, the Pierres eventually obtained an
execution on January 27, 2005, which they recorded six months later on August 9, 2005.
On July 30, 2005, the Debtor married Wall who, as noted above, resides at 544
Washington Ave., Revere, Massachusetts. 	On the marriage certificate, he listed 174
Jefferson Avenue, Everett, Massachusetts as his address, although it is clear to this Court
that he was not living there at the time. Referring to the summer of 2005, the Debtor stated:
“I was living at Jefferson Ave. I was also living in motels, and I was living with her [sic]
because I was also dating a couple of other women at the time.” (Tr. p. 53). Following their
marriage ceremony, Gatta and Wall went on a honeymoon to the Carribean and did not
return to the Boston area until August 21, 2005. 	Gatta did not advise Corneau of his
marriage plans. She learned of his marriage at about the same time she learned that the
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Pierres had obtained a lien on the Everett Property. Gatta testified during his deposition,
the transcript of which was submitted in evidence, that his marriage was “a surprise” to
his daughter.
Corneau admitted that when she received notice of the Pierres’ execution in August
of 2005 she was irate. Although she testified that she did not specifically recall telephoning
the Pierres’ attorney and telling him that Gatta no longer resided at the Everett Property,
she testified that she remembered calling Gatta “because that’s where my anger was
directed. . . .” (Tr. p. 23).
Corneau testified that Gatta now stays at her home with her daughter, on weekends,
“whenever I want[ . . . ] to go out and he comes on holidays.” (Tr. p. 17). She indicated that
when he stays at her home he sleeps in a finished bedroom in the basement and shares the
bathroom on the first floor. 	She explained that the reason for this arrangement is to
facilitate Gatta’s visitation with her daughter. She testified:
My daughter doesn’t want to go to Revere. 	She doesn’t - - neither one,
myself or my daughter, are pleasant or do get - - we don’t get along with his
wife, and so that would be the reason that he - - she’s - - we’ve all agreed for
him come there [the Everett Property]. Plus, there was a transition period
between my mother dying and him leaving and I thought that he needed to
be there more often, so that was what - - how we came about that
arrangement. I though that was convenient for everybody.
(Tr. p. 21).
The Debtor testified that he spends between two and four nights per week at the
Everett Property and that he receives most of his mail there. He testified that “right now
I’m still spending time in both houses.” (Tr. p. 28). On cross examination, he testified that
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“I stay, you know, two to three nights at Jefferson Ave. and I stay - - I stay at Washington
Avenue after that with my wife.” (Tr. p. 51). He also stated during his deposition that
“[m]y primary is still 174 Jefferson Avenue because I plan on moving back in there with
my wife as soon as my daughter graduates,” adding “[m]y wife is going to be moving into
that home” and “Sandra is going to be getting out.” Corneau, however, stated that she
planned on staying in the Everett Property, where her brother and his son also have an
apartment.
The Everett Property has a third apartment which was occupied by William Bradley
(“Bradley”). Gatta and Bradley, who was eventually evicted for non-payment of rent, were
involved in an altercation in February of 2006 when Gatta employed a plumber to make
repairs to the heating system. Bradley assaulted Gatta with a sword. The police report was
submitted in evidence. It listed Gatta as the Victim/Witness with the following address:
544 Washington Avenue, Revere, Massachusetts. 	Additionally, Bradley submitted an
affidavit, which was submitted in evidence without objection, in which he stated that
during the period of his tenancy Gatta moved and “has not lived there since and was never
a resident of 174 Jefferson Avenue. Sandra lives with her daughter on the first floor, her
brother lives on the second floor with his son Christopher. Robert Gatta is a resident of
Washington Avenue, Revere, Massachusetts.” Although the Debtor’s lawyer did not object
to the submission of the affidavit, Gatta dismissed Bradley’s affidavit as unreliable in view
of his eviction and criminal conviction for assault with a dangerous weapon.
Gatta testified that he receives most of his mail at the Everett Property, that the
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Everett address is listed on his commercial driver’s license, that when he last voted he
voted in Everett, and that he pays excise taxes in Everett. 	He explained that the 544
Washington Avenue, Revere address appearing on his Construction Supervisor’s license
was “because that’s where her business address was out of,” an apparent reference to his
wife’s construction company, All The Best Construction Company, Inc., for which he works
as a subcontractor. The Debtor also testified that he registered his 2001 Harley-Davidson
motorcycle at the Revere address because he stores it there.
Geleme Pierre testified, without objection, about his attempts to contact the Debtor
after he walked off the job at Garland Street, Everett, Massachusetts. He stated: “I’ve gone
several times at 174 Jefferson Ave. [sic], and Sandra told me he doesn’t live there anymore.
I’ve seen her at the supermarket, and I ask her, ‘Can you help me?’ and she just say, ‘Hey,
I have no idea where he is. I don’t care.’” (Tr. p. 61). Mr. Pierre also recalled that Gatta told
the Superior Court judge that he was living on Washington Avenue in Revere,
Massachusetts.
The Debtor filed a voluntary petition under Chapter 7 on October 9, 2005, three
weeks after recording a declaration of homestead. 	On his petition he listed his street
address as 174 Jefferson Avenue, Everett, Massachusetts. He listed an ownership interest
in the Everett Property. On Schedule C-Property Claimed as Exempt, the Debtor claimed
a homestead exemption in the Property in the sum of $144,065.67 pursuant to Mass. Gen.
Laws ch. 188, § 1. On Schedule D-Creditors Holding Secured Claims, the Debtor listed the
Pierres as holders of a judicial lien against the Everett Property in the sum of $96,594.31.
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1 As discussed above, the Debtor was married to Kimberly Wall at the time he
filed his petition.
2 As noted above, Corneau testified that she received child support from the
Debtor.
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On Schedules I -Current Income of Individual Debtor(s), the Debtor disclosed that he is a
single, self-employed carpenter, with one dependent, earning $1,000.00 in regular monthly
income from the operation of a business, and $1,850.00 in income from real property. 1 On
Schedule J-Current Expenditures of Individual Debtor(s), the Debtor did not list any
expenses for “Alimony, maintenance, and support paid to others” or “Payments for
support of additional dependents not living at your home.”2
III. DISCUSSION
The issue before the Court is whether the Debtor may avoid the Pierres’ lien on the
ground that it impairs his claimed homestead exemption. Although the Pierres did not
object to the Debtor’s claimed homestead exemption within 30-days of the conclusion of
the meeting of creditors in accordance with Fed. R. Bankr. P. 4003(b), this Court, in In re
Tinker, 355 B.R. 380 (Bankr. D. Mass. 2006), adopted the reasoning in In re Schoonover, 331
F.3d 575 (7th Cir. 2003), and In re Maylin, 155 B.R. 605 (Bankr. D. Me. 1993), holding that
a judicial lienholder’s failure to object to a claimed exemption does not bar a later objection
to a lien avoidance motion. The Court stated the following:
The denial of the right to assert the validity of the debtor’s exemption as a
defense to a § 522(f) motion would defeat the secured creditor’s option not
to participate in the bankruptcy case. To repeat, “[j]ust as § 522(1) and Rule
4003(b) put the onus of timely objection on general unsecured creditors, so
§ 522(f) and Rules 4003(d) and 9014 put the onus of contesting a lien on
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3 The statute provides, in relevant part:
[T]he debtor may avoid the fixing of a lien on an interest of the debtor in
property to the extent that such lien impairs an exemption to which the
debtor would have been entitled... if such lien is (a) a judicial lien . . . .
11 U.S.C. § 522(f)(1)(A).
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debtors; the clock for lienholders runs from the motion under § 522(f) and not
from the meeting of unsecured creditors.” Schoonover, 331 F.3d at 578.
Tinker, 355 B.R. at 386 (footnote omitted). Accordingly, the Pierres are not barred from
contesting the Debtor’s Lien Avoidance Motion, although they did not object to his claimed
homestead exemption within 30-days of the conclusion of the meeting of creditors held
pursuant to 11 U.S.C. § 341(a). See Fed. R. Bankr. P. 4003(b).
Pursuant to 11 U.S.C. § 522(f)(1),3 a debtor may avoid a judicial lien which impairs
an exemption. “In order to be successful in avoiding a judicial lien pursuant to § 522(f), the
Court must determine: (1) whether the debtor is entitled to an exemption; (2) the extent to
which the lien may be avoided; and (3) whether the lien does in fact impair the exemption.”
Tinker, 355 B.R. at 382 (citing In re Mariano, 311 B.R. 335, 340 (Bankr. D. Mass.2004); In re
Betz, 273 B.R. 313, 320-21 (Bankr. D. Mass. 2002)). Moreover, the debtor has the burden of
proof on all avoidance issues. In re DeCarolis, 259 B.R. 467, 471 (B.A.P. 1st Cir. 2001)(citing
In re Kerbs, 207 B.R. 211, 214 (Bankr. D. Mont.1997)). 	Specifically, the Debtor must
establish his interest in the asset claimed as exempt; that he is entitled to the exemption;
that the lien impairs the exemption; and that the lien is a judicial lien. DeCarolis, 259 B.R.
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4 In the situation where a creditor objects to a debtor’s claimed exemption, in
contrast to the situation present in this case, the objecting creditor has the burden of
proof. In In re Marrama, 307 B.R. 332, 336 (Bankr. D. Mass. 2004). The court in
Marrama explained:
The party objecting to a claim of exemption bears the burden of proving
that the debtor did not properly claim the exemption. Fed. R. Bankr. P.
4003(c). Thus, the objecting party bears the burden to establish that the
debtor did not create a valid estate of homestead, or alternatively, that it
no longer existed at the time of the filing of the bankruptcy. In re
Edwards, 281 B.R. 439, 446 (Bankr. D. Mass. 2002).
Furthermore, “[if] the objecting party can produce evidence to rebut the
exemption, the burden of production then shifts to the debtor to come
forward with unequivocal evidence to demonstrate that the exemption is
proper . . . the burden of persuasion, however, always remains with the
objecting party.” Carter v. Anderson, 182 F.3d 1027, 1029 (9th Cir.1999).
Marrama, 307 B.R. at 336.
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at 471. 4
The issue in this case is whether the Debtor is entitled to the homestead exemption
he claimed on Schedule C. 	If he is not, he will have failed to satisfy one of the four
elements set forth in DeCarolis, and he cannot avoid the judicial lien obtained by the
Pierres.
Section 1 of the Massachusetts Homestead Statute provides, in relevant part, the
following:
An estate of homestead to the extent of $500,000 in the land and buildings
may be acquired pursuant to this chapter by an owner or owners of a home
or one or all who rightfully possess the premise by lease or otherwise and who
occupy or intend to occupy said home as a principal residence. Said estate shall be
exempt from the laws of conveyance, descent, devise, attachment, levy on
execution and sale for payment of debts or legacies . . . .
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Mass. Gen. Laws ch. 188 § 1 (emphasis supplied). “[T]he requirement (of occupancy or
intent to occupy as a principal residence) appears in the statute only as a limitation on the
acquisition of the estate of homestead.” In re Webber, 278 B.R. 294, 298 (Bankr. D. Mass.
2002)(footnote omitted, emphasis in original). Thus, the determinative issue in this case
is whether the Debtor occupied or intended to occupy the Everett Property, as his principal
residence, at the time he recorded the Declaration of Homestead. 	The Debtor has the
burden of establishing that he occupied or intended to occupy the Everett Property as his
principal residence on September 20, 2005.
Based upon the chronology developed during the trial, the Court finds that the
Debtor married Wall on July 30, 2005, without apprising Corneau or his daughter of his
marriage plans; that he went on a three-week honeymoon after the wedding; and that he
returned to the Boston area on August 21, 2005 to be greeted by a former girlfriend who
was upset and irate about the lien affecting the Everett Property. The Court further finds
that, one month later, Gatta recorded a declaration of homestead with respect to the Everett
Property, ostensibly evincing his occupancy or intent to occupy it as his principal residence.
The Court finds that the Debtor’s testimony both during the trial and during his
deposition was evasive, inconsistent, and incredible. The Everett Property was not the
Debtor’s principal residence on September 20, 2005. The Debtor’s conduct in marrying
Wall without disclosing his intention to do so to his daughter or his long-term companion,
Corneau, coupled Corneau’s discovery of the judicial lien on the Everett Property while the
Debtor was on his honeymoon, compels the conclusion that the Debtor was not a welcome
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guest at the Everett Property in the weeks after his return from his honeymoon. Although
homestead exemptions must be construed liberally in favor of debtors, In re Garran, 338
F.3d 1, 6 (1st Cir. 2003) (citing Shamban v. Masidlover, 429 Mass. 50, 705 N.E.2d 1136, 1138
(1999)), this Court cannot accept the Debtor’s testimony that his principal residence was
the same as that of his spurned girlfriend and not that of his wife whom he had just
married. The Court is not persuaded that spending time at the Everett Property two or
three days per week satisfies the requirement of the Homestead statute. Moreover, the
Court is not persuaded by the Debtor’s testimony that he receives mail at the Everett
Property and that he pays excise taxes in Everett.
The Court finds that Corneau’s testimony that the Debtor resides at 174 Jefferson
Avenue is tinged with bias and that she exaggerated the extent of the Debtor’s occupancy
following his return from his honeymoon. Because of the Debtor’s conduct, as Corneau
immediately recognized, her position vis à vis the Everett Property is untenable. Unless
the Pierres’ judicial lien is avoided, they may be able to force a sale of the Everett Property,
a circumstance that would jeopardize her and her family’s continued enjoyment of their
residence. Thus, Corneau had every incentive to assist the Debtor in convincing this Court
that he occupied the Everett Property as his principal residence within two month of his
marriage to Wall. As noted, the Court finds that the Debtor’s testimony was incredible and
he failed in his burden of proof, notwithstanding Corneau’s testimony.
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IV. CONCLUSION
Upon consideration of the foregoing, the Court shall enter an order denying the
Debtor’s Lien Avoidance Motion.
By the Court,
______________________________
Joan N. Feeney
United States Bankruptcy Judge
Dated: 	March 28, 2007
cc: Richard M. Schifone, Esq., Alfred Paul Farese, Jr., Lynne F. Riley, Esq., U.S.Trustee
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