Anketell v. Smith (In re Anketell)

565 B.R. 11
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedMarch 13, 2017
DocketCase No. 15-11362-FJB; Adversary Proceeding No. 15-1117-FJB, Adversary Proceeding No. 15-1124-FJB
StatusPublished

This text of 565 B.R. 11 (Anketell v. Smith (In re Anketell)) 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
Anketell v. Smith (In re Anketell), 565 B.R. 11 (Mass. 2017).

Opinion

MEMORANDUM OF DECISION

Frank J. Bailey, United States Bankruptcy Judge

I. Overview

In or around October 2014, Timothy Smith and Theresa DiPiro (the “Smiths”) hired Ground Up Construction, Inc. (“Ground Up Construction”), which was owned and operated by the chapter 7 debt- or, Damian Anketell (“Anketell”), to per[15]*15form an extensive renovation on their home in Newburyport, Massachusetts. In or around April 2015, after running out of funds, Anketell and Ground Up Construction abruptly stopped work on the Smiths’ renovation leaving the home with an exposed roof and no heating on the second floor. The Smiths subsequently contacted them credit card company to request a refund of certain payments made to Ground Up Construction. Days after halting work on the Smiths’ home, Anketell filed a chapter 7 petition commencing the present bankruptcy case. On the same day the petition was filed, the Smiths’ credit card company refunded the requested payments to the Smiths.

Anketell subsequently filed a complaint (and later an amended complaint) against the Smiths alleging a violation of the automatic stay based on the refunded credit card payments. The Smiths, in turn, filed a complaint against Anketell seeking a determination that a debt owed to them by Anketell arising out of the failed renovation is excepted from discharge under 11 U.S.C. § 523(a)(2) and (a)(6). The Court consolidated the two adversary proceedings for pre-trial and trial purposes and held a two-day trial. The Court now makes the following findings and rulings and on the basis thereof, concludes that Anketell’s amended complaint against the Smiths shall be dismissed on its merits and that any amounts owed by Anketell to the Smiths are excepted from discharge under 11 U.S.C. § 528(a)(2)(A).

II. Procedural History

On April 6, 2015, the Smiths commenced a civil action against Anketell, Ground Up Construction, and others in Essex Superi- or Court. On April 8, 2015, Anketell filed a petition for relief under chapter 7 of the Bankruptcy Code, commencing the present bankruptcy case. Anketell’s petition listed two “co-debtors” that each separately filed chapter 7 petitions on the same day as Anketell: Ground Up Construction and Castle Hill Properties, LLC (“Castle Hill Properties”). The filing of the bankruptcy petitions stayed the litigation in Massachusetts Superior Court as to the three chapter 7 debtors.

On April 28, 2015, the Smiths filed an adversary complaint naming Anketell, Ground Up Construction, and Castle Hill Properties as defendants and stating twelve counts arising under Massachusetts law. The Smiths eventually stipulated to a dismissal without prejudice of this initial complaint.

On June 16, 2015, Anketell and Ground Up Construction each filed separate complaints against the Smiths for determinations of alleged violations of the automatic stay. Anketell amended his complaint prior to the Smiths filing an answer, and Ground Up Construction later agreed to the dismissal of its complaint without prejudice. Anketell’s amended complaint alleged that the Smiths had made certain prepetition payments to Anketell’s electronic “PayPal” account. The amended complaint further alleged that the Smiths caused refunds of these payments to occur sometime after Anketell had filed his chapter 7 petition or that they failed to take reasonable steps to prevent the refunds upon learning of the bankruptcy petition. After Anketell amended his complaint, the Smiths filed a motion to dismiss the amended complaint.

On June 29, 2015, the Smiths filed a complaint against Anketell setting forth the nondischargeability counts under 11 U.S.C. § 523(a)(2) and (a)(6) as well six counts seeking various relief under Massachusetts law.

On October 21, 2015, the Court held a status conference in both of the present adversary proceedings. On the same day, the Court held a hearing on the Smiths’ [16]*16motion to dismiss Anketell’s amended complaint. Following the hearing, the Court denied the Smiths’ motion to dismiss and consolidated the two adversary proceedings for pretrial purposes.

On November 24, 2015 the Smiths’ attorney moved to withdraw. At a subsequent hearing on the motion to withdraw, the Smiths’ explained that they could no longer afford to pay their attorney in light of the cost of an anticipated trial. The Smiths stated that they would represent themselves at trial. The Court allowed the motion to withdraw, and the Smiths have since proceeded pro se in these matters.

On February 9, 2016, Anketell moved for summary judgment on the nondis-chargeability counts of the Smiths’ complaint against Anketell. Prior to trial, the Court denied this motion. Also prior to trial, the Court dismissed the state law counts of the Smiths’ complaint without prejudice to those counts being renewed in an appropriate forum at an appropriate time. Accordingly, what remained for adjudication at trial were the two nondis-chargeability counts of the Smiths’ complaint and Anketell’s amended complaint against the Smiths for a determination of a violation of the automatic stay.

The Court held a two-day consolidated trial in both adversary proceedings. Following the trial, the parties submitted proposed findings of fact and conclusions of law and returned to the Court to deliver closing arguments. After closing arguments, the Court took both matters under advisement.

III. Findings of Fact

The Smiths own and reside in a house in Newburyport, Massachusetts with them three daughters. In or around the summer of 2014, the couple sought to hire a contractor to perform an extensive renovation on their home. They reached Anketell and his business, Ground Up Construction, through the website HomeAdvisor.

Ground Up Construction is a Massachusetts corporation that Anketell caused to be incorporated in or around 2012. At all relevant times, Anketell has been the sole owner and operator of Ground Up Construction. Up to the time of the bankruptcy filing, Anketell operated a construction business through Ground Up Construction.

Castle Hill Properties is a Massachusetts limited liability company that Anke-tell caused to be organized in or around 2012. At all relevant times, Anketell has been the sole member and operator of Castle Hill Properties. Through Castle Hill Properties, Anketell attempted to run a so-called “flipping” business by purchasing properties, renovating them, and then selling them.

In or around the summer of 2014, Anke-tell visited the Smiths’ house multiple times to evaluate the project and to prepare a bid to do the work. Through multiple conversations, the Smiths explained to Anketell that they sought to raise the roof of the house, to build a dormer, to move a stairway, and to add a playroom, office, and extra bedroom.

During these meetings, Anketell told the Smiths that he was an experienced home improvement contractor with a rapidly expanding business. Anketell falsely told the Smiths that he had performed jobs of a similar scope to that of their proposed project.

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Cite This Page — Counsel Stack

Bluebook (online)
565 B.R. 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anketell-v-smith-in-re-anketell-mab-2017.