Blasbalg v. Negro (In re Negro)

176 B.R. 671, 1995 Bankr. LEXIS 79
CourtUnited States Bankruptcy Court, D. Rhode Island
DecidedJanuary 17, 1995
DocketBankruptcy No. 93-10087; Adv. No. 94-1052
StatusPublished
Cited by1 cases

This text of 176 B.R. 671 (Blasbalg v. Negro (In re Negro)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blasbalg v. Negro (In re Negro), 176 B.R. 671, 1995 Bankr. LEXIS 79 (R.I. 1995).

Opinion

ORDER

ARTHUR N. YOTOLATO, Bankruptcy Judge.

Heard on September 28, 29, and October 4, 1994, on: (1) the Trustee’s Motion to adjudge the Debtor in Contempt, and for the Imposition of Sanctions Against the Debtor; (2) the Trustee’s Motion for Judgment on the Pleadings; and (3) the Debtor’s Motion for Leave to File an Amended Answer to the Amended Complaint. We will address the pleadings in the order in which they appear above.

Motion to Adjudge in Contempt

One of the assets of the Chapter 7 estate is a farm on Collins Road in Westerly, Rhode Island. During the time relevant to this proceeding, the farm business was being operated by Kathleen Moriarty, the principal of Hopkinton Riding Stables, Inc. (Hopkin-ton), and a friend of Mr. Negro. The Trustee commenced two adversary proceedings against both Hopkinton and Moriarty; one [672]*672alleging various fraudulent transfers, and the other seeking a permanent injunction against the sale or transfer of estate assets by Hop-kinton and/or Moriarty, without prior Court approval.

On July 8, 1994, the Trustee entered into an agreement with Moriarty and Hopkinton, settling both adversary proceedings. As part of the compromise, Moriarty would keep four horses, a dog, the money in her personal bank account, two saddles, a bridle, and certain other personal possessions. It was agreed that the remainder of the disputed assets were the property of the estate. Moriarty also consented to the entry of a permanent injunction against the transfer of any property without Court approval. Shortly after the settlement Moriarty vacated the premises, and Mr. Negro took over the operation of the farm.

On July 26, 1994, the Trustee went to the farm to show some of the livestock to a prospective purchaser, and discovered that approximately seven horses, a horse trailer, six cows, and a dump truck were missing, or at least were not where they were supposed to be. The Debtor told the Trustee that “the animals must be in the rear portion of the farm,” and were just not visible from where they stood. The horses were not there, nor were they anywhere else on the farm. After further investigation, and being satisfied that Mr. Negro was not being candid, the Trustee filed the instant Motion for contempt and for the imposition of sanctions, alleging that the Debtor had violated the permanent injunction against transferring estate assets.1

At the hearing, the Debtor admitted that he did remove three horses and put them on a neighboring farm, “because they were like his children,” and he “was afraid they would be taken from him.” He also testified that in order to pay for farm operations after Moriarty left, he sold various animals for a total of $1,250, and also expended $4,000 of “his own money” to cover farm expenses between February and August 1994. The Debtor also testified that he had moved the dump truck to his garage in Groton, Connecticut, for transmission repairs. In none of his explanations has Mr. Negro given any acceptable reason why he moved estate property without requesting or receiving authority to do so.

The major items not accounted for in the Moriarty inventory were four quarter horses, over which there was much confusion regarding identity, because the Debtor refers to them by names different than those listed in the inventory. Although Mr. Negro also claims, disingenuously, we think, that he did not remember seeing any quarter horses on the farm when Moriarty departed, the burden on this issue is with the Trustee, and he comes up short, evidence-wise.

While we continue to have problems with the Debtor’s credibility in this case, together with his repeated attempts to appear unsophisticated and therefore not accountable for his ongoing misbehavior (a contention that is flatly rejected), we conclude, based on the record herein, that the Debtor’s actions, although far from acceptable, are not clearly sanctionable. The Debtor sold . livestock which otherwise would have required a significant amount of attention and expense,2 and as for the remaining livestock, he was faced with the task of providing care without running water or electricity. In the circumstances, giving him the benefit of quite a few doubts, and notwithstanding the fact that Mr. Negro is by far his own worst enemy when it comes to creating the appearance of impropriety, the Trustee has not shown that he is in willful contempt, in this instance. Therefore, with the element of willfulness not established, we find that the Debtor was in technical contempt only, and deny the request for sanctions.

Motion for Judgment on the Pleadings, & Motion for Leave to Amend Answer

We treat these Motions together, because the Debtor filed his Motion for Leave [673]*673to Amend Answer only in response to the Trustee’s Motion for Judgment on the Pleadings. The instant adversary proceeding was filed by the Trustee on February 9, 1994, on the following day, February 10, 1994, the Trustee filed an amended complaint objecting to the Debtor’s Discharge under 11 U.S.C. § 727(a)(2)(A), (a)(2)(B), (a)(3), (a)(4)(A), (a)(4)(C), (a)(4)(D), and (a)(7). On March 24, 1994, the Debtor filed his Answer to the Complaint through his then attorney of record, Richard Panciera, Esq. Although Geoffrey Regan, Esq., had previously been providing advice to Mr. Negro, he officially entered his appearance on behalf of the Debtor on April 18,1994. On April 25, 1994, the Trustee filed his Motion for Judgment on the Pleadings. More than three months later, on August 10, 1994, Mr. Regan filed a Motion for Leave to file an Amended Answer to the Complaint, as well as an Objection to the Trustee’s Motion for Judgment on the Pleadings. The Objection restated the Debt- or’s position that he would be seeking to amend his answer to the Complaint.

In reviewing the Motion to Amend, the Court recognizes that leave to amend “shall be freely given when justice so requires,” Fed.R.Civ.P. 15.3 However, a litigant’s ability to amend is not automatic or without limit. See Deasy v. Hill, 833 F.2d 38, 40 (4th Cir.1987), cert. denied, 485 U.S. 977, 108 S.Ct. 1271, 99 L.Ed.2d 483 (1988); In re Suburban Motor Freight, Inc., 114 B.R. 943, 950 (Bankr.S.D.Ohio 1990). The Supreme Court has stated that

[ i]n the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.”

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

As grounds for his Motion to Amend, the Debtor states that:

2. On or about March 18,1994 the Debtor was summoned to the offices of Richard Panciera, Esquire and directed to sign a document entitled “Debtor’s Answer to the Trustee’s Complaint Objecting to the Discharge of Debtor”;
3.

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176 B.R. 671, 1995 Bankr. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blasbalg-v-negro-in-re-negro-rib-1995.