Brown v. Ferrari (In re Ferrari)

587 B.R. 504
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedAugust 7, 2018
DocketBankruptcy Case No. 15 B 35985; Adversary Case No. 17 A 00192
StatusPublished
Cited by3 cases

This text of 587 B.R. 504 (Brown v. Ferrari (In re Ferrari)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Ferrari (In re Ferrari), 587 B.R. 504 (Ill. 2018).

Opinion

Janet S. Baer, United States Bankruptcy Judge

This matter is before the Court on the adversary complaint filed against Robert J. Ferrari (the "Debtor") by plaintiff David R. Brown, not individually but as the chapter 7 trustee for the Debtor's bankruptcy estate (the "Trustee"). The Trustee objects to the Debtor's discharge pursuant to 11 U.S.C. §§ 727(a)(2)(A), (a)(3), and (a)(5) of the Bankruptcy Code.1 For the reasons outlined below, the Court finds in favor of the Trustee and against the Debtor on Counts II and III of the complaint and holds that the Debtor is not entitled to a discharge under §§ 727(a)(3) and (a)(5). As for Count I, the Court finds that the Trustee has failed to meet his burden under § 727(a)(2)(A). As such, that count will be dismissed.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. This is a core proceeding under 28 U.S.C. § 157(b)(2)(J).

BACKGROUND

The Debtor originally filed his bankruptcy case under chapter 13 of the Bankruptcy Code on October 22, 2015 (the "Petition Date"). (Pretrial Stmt. ¶ 4.2 ) The case was involuntarily converted to chapter 7 on the motion of FirstMerit Bank, N.A. ("FirstMerit Bank") on October 17, 2016. (Id. ; Bankr. Dkt. 127.3 )

The Debtor is a licensed real estate broker and the president and sole shareholder of Best Seats Available, Inc. ("Best Seats"), a ticket broker. (Pretrial Stmt. ¶¶ 7 & 8.) The Debtor owns a home located at 810 Brentwood Drive in Bensenville, Illinois (the "Home"). (Id. ¶ 6.) The Trustee alleges that the Home is the Debtor's most valuable asset and that, on the Petition Date, it was worth between $300,000 and $500,000. (Pretrial Stmt., Trustee's Claims, at 1 ¶ 1.) The Debtor obtained an appraisal of the Home in November 2015 which reflected a value of $330,000. (Pretrial Stmt. ¶ 30.)

On the Petition Date, the Home was encumbered by a purchase money mortgage which is currently held by JPMorgan Chase Bank ("Chase Bank"). (Id. ¶ 21.) The Debtor's amended schedule D shows *509the amount owed on the first mortgage as $148,119.85. (Id. ¶ 28; Bankr. Dkt. 45.) On the Petition Date, the Home was also encumbered by a junior mortgage allegedly securing an equity line of credit in the amount of $375,000. (Pretrial Stmt. ¶ 33; Trustee Exs. 7 & 8.4 ) The junior mortgage was the subject of a separate adversary proceeding brought by the Trustee under §§ 506(a)(1), 547, and 548. (Adv. No. 16-00757.) That case was dismissed in December 2017 after the Trustee agreed to accept $110,000 for the purchase of the estate's interest in the Home. (Id. at Adv. Dkt. 38; see also Bankr. Dkt. 166 & 170.) The circumstances surrounding the junior mortgage, and related matters, however, are relevant to this adversary proceeding.

In order to understand the issues before the Court here, some history is required. On February 11, 2005, Stave Properties, Inc. ("Stave"), an Illinois corporation owned by the Debtor and an individual named Joseph Betancourt ("Betancourt"), executed a note and a mortgage in favor of Mount Prospect National Bank ("Mount Prospect Bank") on the property commonly known as 2170-2174 North Stave Street in Chicago (the "Stave Note"). (Pretrial Stmt. ¶¶ 12 & 13.) On the same day, the Debtor executed in favor of Mount Prospect Bank both a guaranty of the Stave Note and a second mortgage on his Home to secure his guaranty of the Stave Note (the "Stave 2nd Mortgage"). (Id. ¶ 14.) The Stave guaranty was also secured by a mortgage on Betancourt's home. (Tr. 133:22-134:1.5 ) FirstMerit Bank is the successor-in-interest to Mount Prospect Bank as to both the Stave Note and the Stave 2nd Mortgage. (Pretrial Stmt. ¶ 15.)

On April 17, 2015, FirstMerit Bank obtained a judgment against Stave, the Debtor, and Betancourt on the Stave Note and guarantees in the amount of $246,772.95. (Id. ¶ 16.) Thereafter, the Debtor and Betancourt satisfied the judgment, with Betancourt paying approximately $220,000 and the Debtor paying about $24,000 to FirstMerit Bank. (Tr. 134:1-6.) As a result of those payments, a Notice of Satisfaction of Judgment was filed by FirstMerit Bank on April 21, 2015 (Trustee Ex. 13), and on May 4, 2015, a Release of Mortgage as to the Stave 2nd Mortgage was recorded with the DuPage County Recorder's Office (Pretrial Stmt. ¶¶ 17 & 18; Trustee Ex. 14). Thus, as of April 21, 2015, the Debtor's Home was encumbered by only the Chase Bank mortgage, and the Debtor had approximately $182,000 of equity in the Home (using the appraisal figure provided by the Debtor). (Pretrial Stmt. ¶¶ 22 & 28.)

At all times relevant, the Debtor, along with his daughter Maria Ferrari ("Maria"), had another obligation owing to FirstMerit Bank. According to the Debtor, that obligation was in the amount of approximately $300,000 and was secured by a mortgage on a single-family lot located on Cortland Street in Chicago. (Tr. 130:6-25.) The Debtor testified that the property securing the debt was ultimately sold and that a deficiency of approximately $80,000 remained owing to FirstMerit Bank. (Tr. 131:22-132:8.) The Debtor further testified that he tried to work with FirstMerit Bank to resolve the Cortland obligation but was unsuccessful in doing so. (Tr. 130:4-133:5.)

The amended proof of claim filed by FirstMerit Bank in the Debtor's case conflicts *510with the Debtor's testimony.6 According to that proof of claim, filed on February 5, 2018 and identified as No. 5-2, FirstMerit Bank alleges an unsecured claim in the amount of $248,100.77. (Bankr. Dkt., Claims Register, Claim 5-2 at 1-3.) The attachments to the proof of claim indicate that the obligation arose from a promissory note executed by 2425 W. Cortland Properties, Inc., a company of which the Debtor served as president and Maria as secretary. (Id. at 26-28.) The note was dated April 30, 2010 in the original principal amount of $312,062.74 and was secured by a mortgage on the Cortland Street property, as well as property located in Lombard, Illinois, owned solely by Maria and her husband Juan Salgado. (Id. at 26-30.) The indebtedness was further secured by a commercial guaranty executed by the Debtor and a personal guaranty executed by Maria. (Id. at 31.)

FirstMerit Bank ultimately obtained an Order Appointing Selling Officer and Judgment of Foreclosure and Sale with respect to the note, mortgage, and guarantees. (Id.

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Cite This Page — Counsel Stack

Bluebook (online)
587 B.R. 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-ferrari-in-re-ferrari-ilnb-2018.