Agai v. Antoniou (In re Antoniou)

527 B.R. 71, 2015 Bankr. LEXIS 651
CourtUnited States Bankruptcy Court, E.D. New York
DecidedMarch 3, 2015
DocketCase No. 8-12-74788-reg; Adv. Proc. No. 8-12-8400-reg
StatusPublished
Cited by15 cases

This text of 527 B.R. 71 (Agai v. Antoniou (In re Antoniou)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Agai v. Antoniou (In re Antoniou), 527 B.R. 71, 2015 Bankr. LEXIS 651 (N.Y. 2015).

Opinion

MEMORANDUM DECISION

Hon. Robert E. Grossman, U.S.B.J.

Before the Court is a motion for summary judgment by the Plaintiffs, Jacob Agai, 291 Avenue P, LLC and Summer-field Developers, Inc. (collectively, the “Plaintiffs” or “Agai”), seeking judgment as a matter of law that the Debtor, Sokra-tis Antoniou (the “Debtor” or “Sokratis”), should be denied his discharge pursuant to 11 U.S.C. §§ 727(a)(3), (a)(4)(A) and (a)(5) of the Bankruptcy Code.1, Although much of the complaint alleges record-keeping, disclosure and accountability failures by the Debtor with respect to an entity, Dion-tech Consulting, Inc., of which the Debtor was part owner and (alleged) alter ego, the Court finds that the Debtor’s failures with respect to his own personal financial affairs warrants denial of the discharge in this case. As such, the Court need not decide whether the Debtor’s record-keeping, disclosure and accountability failures with respect to Diontech warrant denial of [75]*75the discharge on this motion for summary-judgment.

The uncontested facts establish that the Debtor failed to keep or preserve recorded information from which his financial condition might be ascertained in that he failed to maintain or preserve personal financial documents beginning mid-2010 and continuing through the bankruptcy filing in July 2012. For these reasons and as more fully explained herein, the Court finds in favor of the Plaintiffs under § 727(a)(3).

Procedural History

On July 31, 2012 (the “Petition Date”), the Debtor filed a petition for relief under chapter 7 of the Bankruptcy Code, and Kenneth Kirschenbaum, Esq. (“Trustee”) was subsequently appointed as trustee. On October 23, 2012, the Plaintiffs filed the instant complaint seeking to deny the Debtor’s discharge in its entirety and/or seeking to except the Plaintiffs’ debt from discharge under §§ 523(a)(2), (4) and (6). The Debtor filed an answer November 21, 2012. On December 11, 2013, Plaintiffs filed a Memorandum in Support of Motion for Leave to Amend the Complaint to add a claim under § 727(a)(2)(A),2 and for Summary Judgment on Plaintiffs’ § 727 claims as to Counts One (§ 727(a)(3)), Two (§ 727(a)(4)(A)) and Three (§ 727(a)(5)). The Debtor filed opposition to the motion on May 25, 2014, and the Plaintiffs filed a reply on May 29, 2014. A hearing on the Plaintiffs’ Motion was held June 2, 2014, at which time this matter was taken under submission.

Facts

From about 2000 to 2008, the Debtor was a one-third owner of a construction company, Diontech Consulting, Inc. (“Diontech”). (Schedule B, 12-74788-REG, ECF. No. 1.) The other two owners of Diontech were Dennis Mihalatos (“Mi-halatos”) and Stylianos Antoniou (“Stylia-nos”), both of whom are also debtors before this Court.3 In 2007, Plaintiffs sued Diontech and Mihalatos (but not the Debt- or and Stylianos) alleging that they suffered damages as a result of Diontech’s breach of two construction contracts. (Compl., 12-08400-REG, ECF No. 1 ¶ 1.) On September 19, 2011, after a trial in the Supreme Court of the State of New York, County of Richmond, Justice Dollard issued a decision and awarded the Plaintiffs judgments totaling approximately $5.8 million against Diontech and Mihalatos. (Deck of Michael Paul Bowen, Ex. 6, 12-08400-REG, ECF No. 18-11.) Plaintiffs subsequently commenced post-judgment proceedings pursuant to Article 52 of the New York Civil Practice Law and Rules to, inter alia, pierce the corporate veil of [76]*76Diontech and hold the Debtor personally liable, jointly and severally, with Diontech and the other Diontech principals, Mihala-tos and Stylianos. (Plaintiffs’ Mot. for Leave to Amend the Compl. and Summ. J., 12-08400-REG, ECF No. 16 at 7.) The bankruptcy filings by the Debtor, Mihala-tos and Stylianos stayed the Plaintiffs’ enforcement actions, and so on December 13, 2012, the Plaintiffs sought relief from the automatic stay to pursue the Article 52 proceeding. (Mot. for Relief from Stay, 12-74788-REG, ECF No. 13). The stay was lifted February 11, 2013. (Order Granting Mot. for Relief from Stay, 12-74788-REG, ECF No. 23.) On August 19, 2013, the state court entered a decision and order piercing the corporate veil and holding the Debtor jointly and severally liable for the $5.8 million judgment against Diontech and Mihalatos. (Decl. of Michael Paul Bowen, Ex. 7, 12-08400-REG, ECF No. 18-12.)

While the Plaintiffs’ lawsuit was pending, around the end of 2008, Diontech ceased doing business, and the company was dissolved around 2009. (Pis’ EDNY Local Bankr.Rule 7056.1 Statement of Undisputed Material Facts, 12-08400-REG, ECF. No. 17 ¶ 15.) The Diontech general ledgers for 2007 and 2008 show total “loans” to the Debtor in the amount of $29,000. (Plaintiffs’ Mot. for Leave to Amend the Compl. and Summ. J., 12-08400-REG, ECF No. 16 at 33.) Dion-tech’s 2008 Tax Returns report cumulative “Loans to shareholders” in an amount of $1,001,768 at the end of the tax year. (Decl. of Michael Paul Bowen, Ex. 33, 12-08400-REG, ECF No. 18-45 at 4.) Despite these documents, the Debtor claims not to have received any “loans” from Diontech and explains that he “believes the funds were payments for services for Diontech.” (Sokratis G. Antoniou’s Mem. of Law in Opp’n, 12-08400-REG, ECF. No. 29 at 13.)

Prior to bankruptcy, the Debtor was also a part owner of several entities whose business was to buy, improve and re-sell real property. The Debtor admits that he was involved in buying and re-selling at least three houses between 2005 and 2008. Id. ¶ 59. The Debtor held a one-third interest in one such entity, 31-72, AMA, LLC, a company formed in or about 2005 to own certain real property in Astoria, New York. Id. ¶ 47. Between 2007 and 2010, the Debtor admits to investing “approximately $15,000 to fix the house [owned by 31-71 AMA] so that a certificate of occupancy could be obtained.” Id. The Debtor admitted that in 2010 he received $36,000 in connection with the sale of a property owned by 31-72 AMA. Id. According to the Debtor, he deposited those funds into an account at Atlantic Bank and used them for living expenses. Id. The Debtor did not disclose his interest in 31-72 AMA LLC anywhere in his bankruptcy petition and schedules. Nor did he include the $36,000 distribution he received from that entity in his statement of income for 2010.

The Debtor also did not disclose in his schedules or statements, any interest in an entity called 93 AMA LLC. The Plaintiffs allege that the Debtor held an interest in this entity and in support thereof offer as an exhibit a document, dated July 6, 2007, which purports to bear the Debtor’s signature on a “Business Client Profile” submitted to Signature Bank in the name of 93 AMA LLC. The Debtor’s name and purported signature appear next to the title “member-manager.” (Decl. of Michael Paul Bowen, Ex. 20, 12-08400-REG, ECF. No. 18-30 at 23-24.) The Debtor maintains that this is not his handwriting but rather it appears to be the handwriting of his former business partner, Dennis Miha-latos, (Sokratis G. Antoniou’s Aff. in Opp’n, 12-08400-REG, ECF. No. 30, ¶ 18.)

[77]*77The Debtor did disclose on Schedule B that he held a one-third interest in an entity called 24-65 AMA LLC, which owned certain real property, also in Astoria. According to the Debtor, the real property owned by 24-65 AMA LLC was in foreclosure and the building had no certificate of occupancy.

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Cite This Page — Counsel Stack

Bluebook (online)
527 B.R. 71, 2015 Bankr. LEXIS 651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agai-v-antoniou-in-re-antoniou-nyeb-2015.