BMW Financial Services, N.A. v. Rivas (In re Rivas)

558 B.R. 690
CourtUnited States Bankruptcy Court, D. New Jersey
DecidedOctober 21, 2016
DocketCase No. 14-14111 (VFP); Adv. Pro. No. 14-1469 (VFP)
StatusPublished

This text of 558 B.R. 690 (BMW Financial Services, N.A. v. Rivas (In re Rivas)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BMW Financial Services, N.A. v. Rivas (In re Rivas), 558 B.R. 690 (N.J. 2016).

Opinion

OPINION

VINCENT F. PAPALIA, United States Bankruptcy Judge

I.INTRODUCTION

This matter is before the Court on the trial of BMW Financial Services’ (the “Plaintiff’ or “BMW”) Complaint objecting to the discharge of Reyvis D. Rivas (the “Debtor”) under §§ 727(a)(2), (a)(3) and (a)(5) of the Bankruptcy Code based primarily on the “disappearance” of a 2011 BMW X6 vehicle purchased by Debtor (the “Vehicle”). Debtor claims it was stolen; BMW claims its theft was orchestrated by the Debtor. Trial was conducted on April 9, 2015, after which the Court directed the parties to make post-trial submissions. Subsequent to trial and the post-trial submissions, the Debtor advised the Court that the Vehicle had been located in California (Dkt. Nos. 34 and 35). As a result, the parties requested and were granted time to make additional submissions regarding this newly discovered evidence. The record was closed in this matter on July 18, 2016. The Court considered the testimony, the evidence at trial and the parties’ pre- and post-trial submissions (to the extent referred to in this Opinion), and now renders its decision.

II. JURISDICTION

The Court has jurisdiction over this matter under 28 U.S.C. §§ 1334(a) and 157(a) and the Standing Order of the United States District Court dated July 10, 1984, as amended September 18, 2012, referring all bankruptcy cases to the bankruptcy court. This matter is a core proceeding within the meaning of 28 U.S.C. §§ 157(b)(2)(A) and (J). Venue is proper in this Court pursuant to 28 U.S.C. § 1408. The following constitutes the Court’s findings of fact and conclusions of law as required by Fed. R. Bankr. P. 7052.1

III. PROCEDURAL HISTORY

On March 6, 2014, the Debtor filed a Chapter 7 bankruptcy petition (Main Dkt. No. 1). On May 13, 2014, the Plaintiff timely filed an Adversary Complaint ob[693]*693jecting to the Debtor’s discharge under §§ 727 (a)(2), (a)(8) and (a)(5) of the Bankruptcy Code (Main Dkt. No. 10).

At two prior hearings on the case, the first on July 15, 2014, at which the Court denied Debtor’s motion for summary judgment or to dismiss the complaint, and the second on December 16, 2014, at which the Court denied Plaintiffs motion to amend the complaint, Judge Kaplan (who was previously assigned to this case) limited the factual bases of Plaintiffs claims to the Debtor’s loss or theft of the Vehicle as conduct that may require the Court to deny Debtor’s discharge under 11 U.S.C. §§ 727(a)(2)(A), (a)(3) or (a)(5). The Court made clear that it would not allow Debtor’s failure to provide insurance as a basis to deny discharge under 11 U.S.C. § 727(a)(3) (failure to maintain adequate records). At the July 15, 2014 hearing, the Court observed:

I’m looking at the complaint. The only possibility I would see as a basis for a 727 objection to discharge would be if there was some collusion between Mr. Rivas and whoever stole the vehicle, and ... the vehicle was liquidated, sold as part of some machinations.

(Dkt. No. 23, 7/15/14 Hr’g Tr. 2:16-21). Later in that hearing, the Court rejected Plaintiffs proposal to base the § 727(a)(3)' claim on any failure by Debtor to provide proof of insurance of the Vehicle:

Ms. Español: Under 727, Your Honor, (a)(3) the debtor adequately failed to provide records of vehicle insurance and he’s required to do so under the contract, Your Honor.
The Court: No, you’re not going to win on that, all right?
The Court: That’s [727(a)(3) ] — financial records to disclose is the financial picture, not a specific type of record or document that benefits primarily your client. ... You’re not going to win on most of the grounds under 727, especially with the insurance. ... [Discovery] should be tailored to what you can establish to prove a viable claim under 727, specifically, 727(a)(3) [sic], the debtors concealed, destroyed, mutilated, falsified any assets or possibly 727(a)(2) with the intent to hinder, delay or defraud, and he’s destroyed or removed certain assets.

(Dkt. No. 23, 7/15/14 Hr’g Tr. 4:1-20).

On December 16, 2014, the Court denied the Plaintiffs motion to amend the complaint to include a count under 11 U.S.C. § 523 to except the debt from discharge or make Debtor’s conduct in entering the retail installment contract a basis for denying discharge under § 727(a).2 The Court opened the hearing with the question:

[W]hat have you discovered in — uncovered in discovery that goes to the theft of the vehicle or a basis that you wouldn’t have had before?

(Dkt. No. 24, 12/16/14 Hr’g Tr. 4:7-9). The Court concluded by reiterating that the factual and legal issues for Plaintiffs claim were limited to the loss of the Vehicle:

[Yjour complaint is under 727(a).... And it’s 727(a)(2) to hinder, delay or defraud, you transferred or concealed an asset, 727(a)(5), the debtor has failed to explain the loss of an asset, and 727(a)(3) deals with books and records.
That’s different than challenging the underlying transaction as far as going into the transaction in the first place. That’s an after the fact. That’s where’s the [694]*694vehicle. That’s where you fail to explain where the vehicle is gone or you’re still concealing the vehicle or you engage— you fail to produce records showing where the vehicle is. ... [I]t’s unrelated to going into you shouldn’t have entered into the transaction in the first place or you committed a false representation in entering into the transaction in the first place or even providing a false financial statement.

(Dkt. No. 24, 12/16/14 Hr’g Tr. 8:16-9:7). The Court then denied the Plaintiffs motion to amend the complaint to include the § 523(a) count (Dkt. No. 24, 12/16/14 Hr’g Tr. 9:13-14). This Court will not revisit any of these rulings by Judge Kaplan, as it was not expressly asked to do so, although some of Plaintiffs arguments seem to do so implicitly, and this Court agrees with Judge Kaplan’s analysis in any event.

On April 9, 2015, a trial was held (Dkt. No. 30). The Debtor and his brother Gilberto M. Rivas were the only witnesses called (Dkt. No. 30). For the reasons that follow, the Court will deny Plaintiffs claims for relief and dismiss the Complaint, with prejudice and without costs.

IV. STATEMENT OF FACTS

A. The Purchase of the Vehicle

On June 20, 2013, the Debtor’s 21st birthday, the Debtor and his brother, Gilberto M.

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Cite This Page — Counsel Stack

Bluebook (online)
558 B.R. 690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bmw-financial-services-na-v-rivas-in-re-rivas-njb-2016.