Agin v. Resendes (In re Borba)

549 B.R. 428
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedApril 7, 2016
DocketCase No. 14-11614-JNF; Adv. P. No. 14-1132
StatusPublished

This text of 549 B.R. 428 (Agin v. Resendes (In re Borba)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Agin v. Resendes (In re Borba), 549 B.R. 428 (Mass. 2016).

Opinion

MEMORANDUM

Joan N. Feeney, United States Bankruptcy Judge

I. INTRODUCTION

The matter before the Court is the seven-count Complaint filed by the Chapter 7 Trustee of the estate of Lucy Borba (the “Debtor”) against the Defendant, Sende Resendes (the “Defendant” or “Re-sendes”), who is the Debtor’s older sister.1 The Defendant answered the Complaint, the parties filed a Joint Pretrial Memorandum, and the Court conducted a trial on February 9, 2016.

At the trial, three witnesses testified and 29 exhibits were accepted into evidence. The issue presented is whether the Trustee sustained his burden of proving that the Debtor’s transfer of a one-half interest in property located at 680 Cohan-net Street, Taunton, Massachusetts (the “Property”) was voidable as either a constructively or intentionally fraudulent transfer under federal or state law. See 11 U.S.C. §§ 544, 548(a)(1)(A), (B), and Mass. Gen. Laws ch. 109A, §§ 5(a)(2), 6(a) and 5(a)(1).

II. FACTS2

In their Joint Pretrial Memorandum, the parties set forth numerous agreed facts which this Court has supplemented based upon the evidence adduced at trial. On April 10, 2014, the Debtor filed a Chapter 7 bankruptcy petition, although she testified that she contemplated filing a bankruptcy petition at the beginning of the year. The U.S. trustee appointed Warren E. Agin the interim Chapter 7 Trustee on April 11, 2014.

On May 19, 2014, less than six weeks after the Debtor filed her bankruptcy petition, . Green Tree Servicing LLC filed a [431]*431Motion for Relief from the Automatic Stay with respect to the Debtor’s property located at 107 Tremont Street, Taunton, Massachusetts. It alleged that a note and mortgage it held had been in default since March 1, 2012. Neither the Debtor nor the Chapter 7 Trustee opposed the Motion, and, accordingly, this Court, on June 3, 2014, entered an order granting Green Tree Servicing LLC relief from the automatic stay. The Trustee subsequently filed a Notice of Abandonment with respect to the Tremont Street property on September 24, 2015.

On July 8, 2014, the Chapter 7 Trustee .filed a request for a bar date for filing proofs of claim. The Court granted the request and established October 7, 2014 as the deadline for filing proofs of claim. Six creditors filed proofs of claim totaling $28,452.61. Neither Green Tree Servicing LLC nor the holder of a junior lien on the Debtor’s Tremont Street property filed a proof of claim.

With respect to the merits of the Trustee’s Complaint, Maria L. Gomes is the mother of the Debtor and her sister, the Defendant. Luis A. Gomes is the deceased stepfather of the Defendant and the Debtor. Manuel dosSantos conveyed the Property to Luis A. Gomes and Maria L. Gomes as tenants by the entirety and to the Defendant, Sendes [sic] D. Resendes, as joint tenants by deed, dated December 23, 1994, for a stated consideration of $119,900. The Defendant was a senior in high school at the time the deed was executed. She continues to reside in the Property; the Debtor resided in the Property until 2004.

Less than six months after the Defendant, her mother and step-father acquired the Property from Manuel dosSantos, the Defendant conveyed her interest in the Property to Luis A. Gomes and Maria L. Gomes as tenants by the entirety for a stated consideration of $1.00.3 On April 7, 1999, Luis A. Gomes and Maria L. Gomes conveyed the Property by Quitclaim Deed to themselves as Trustees of The Luis A. Gomes and Maria L. Gomes Family Trust for a stated consideration of $1.00. Luis A. Gomes died sometime in early 2003.

On July, 7 2003, Maria L. Gomes, as Trustee of The Luis A. Gomes and Maria L. Gomes Family Trust, transferred the Property to herself, the Defendant, and the Debtor as joint tenants with the right of survivorship. Less than two years later, on May 25, 2005, Maria L. Gomes, the Defendant and the Debtor transferred the Property by Quitclaim deed to the Defendant. On that same date, the Defendant refinanced the Property, executing a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”) to secure a note in the sum of $95,000 in favor of American Mortgage Network, Inc.

In addition, on May 25,2005, the date on which the Defendant became the sole owner of the Property, Elidió Camara conveyed property located at 107 Tremont Street, Taunton, Massachusetts to the Debtor for a stated consideration of $241,000. The Debtor and Matthew J. Borba executed a mortgage in favor of MERS to secure a note, executed only by the Debtor, to Homecomings Financial, LLC in the sum of $272,000 on the same day. On December 22, 2006, they executed an Open End Mortgage to MERS to secure a note to Homecomings Financial, LLC in the sum of $25,000.

The Defendant testified that her mother wished to be removed from the deed to the [432]*432Property “to get healthcare.” She also testified that the Debtor wished to be removed from the deed because “I believe her home time [sic] — first-time home buyer or something, I believe.”

The Defendant, who resides in the Property with her mother, her husband, and the couple’s two children, has made all the regular monthly mortgage payments since May 25, 2005. Indeed, the Defendant and her spouse, Ricardo Pereira, in addition to caring for Maria Gomes, who is 65 years old, does not speak English, and uses a cane, have paid all real estate taxes, made all insurance payments, and taken care of all repairs and expenses associated with the Property. The Property is assessed at $192,400 by the City of Taunton, although the Defendant testified that if she were to sell the Property she probably would ask no more than $180,000 for it. The Debtor has never contributed any money toward mortgage payments, real estate taxes, homeowner’s insurance or upkeep for the Property.

On or about January 26, 2006, after the Defendant executed the mortgage to MERS with regard , to the Property, but before she married Ricardo Pereira, she transferred the Property to herself and the Debtor as joint tenants by Quitclaim Deed for consideration of less than $1.00. The deed was not dated but it was recorded on January 26, 2006. The Defendant explained that her mother wanted her daughters to share ownership of the Property. The Defendant testified as follows:

Q. What was the purpose of that [the January 2006 transfer from the Defendant and the Defendant and the Debtor as joint tenants]?
A. I believe she wanted to be — oh, my mother wanted her name back on.
Q. Why?
A. She — she thinks the Portuguese laws and American laws are the same. She just wanted her name back on.
Q. You’re going to have to explain that to me.
A. She just — my mom just wanted her name back on because she had another daughter. I’m not sure—
Q. Did she want you to share—
A. Yes.
Q. —in the house?
A. Yes. Yeah
Q. In case she died?
A. Yeah.

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Bluebook (online)
549 B.R. 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agin-v-resendes-in-re-borba-mab-2016.