D'Angelo v. Blue Chip Federal Credit Union (In re D'Angelo)

524 B.R. 624
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedJanuary 7, 2015
DocketBankruptcy No. 1:11-bk-07248-RNO; Adversary No. 1:12-ap-00144-RNO
StatusPublished

This text of 524 B.R. 624 (D'Angelo v. Blue Chip Federal Credit Union (In re D'Angelo)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D'Angelo v. Blue Chip Federal Credit Union (In re D'Angelo), 524 B.R. 624 (Pa. 2015).

Opinion

OPINION1

ROBERT N. OPEL, II, Bankruptcy Judge.

The Chapter 13 Debtors in the Adversary Proceeding seek a determination of the priorities of two mortgages against their principal residence. For the reasons stated herein, I conclude that the mortgage held by Blue Chip Federal Credit Union is superior to any mortgage claim by Metro Bank.

I. JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157(b)(2). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (K).

II. PROCEDURAL HISTORY AND STIPULATION FACTS

I write today principally for the sake of the parties to this Adversary Proceeding. A more complete procedural history can be obtained by reviewing two prior Opinions which concerned motions for summary judgment by the respective Defendants, each of which were denied. Those Opinions are In re D’Angelo, 494 B.R. 639 (Bankr.M.D.Pa.2013) and In re D’Angelo, 505 B.R. 181 (Bankr.M.D.Pa.2014).

For purposes of this Opinion, I offer the following. A voluntary Chapter 13 proceeding was filed by Timothy and Ronda D’Angelo (“Debtors”) on October 25, 2011. The Debtors’ bankruptcy schedules include Schedule A — Real Property. Schedule A includes the Debtors’ principal residence, located on Tarryton Road, Harrisburg, Pennsylvania (“Tarryton Property”).

On May 24, 2014, the ■ Debtors commenced the within Adversary Proceeding. The proceeding seeks a determination of the respective priorities of mortgages against the Tarryton Property. The mortgages at issue are a mortgage in the face amount of $256,800.00 (“Metro Mortgage Three”) held by Metro Bank (“Metro”), and a mortgage in the face amount of $52,500.00 (“Blue Chip Mortgage”) held by Blue Chip Federal Credit Union (“Blue Chip”). Prior to trial, the parties filed a document titled Stipulated Facts, ECF No. 95. The Stipulation contains twenty-five paragraphs.

A one day trial on this dispute was held . on September 19, 2014, and post trial briefs have been submitted.

III.DISCUSSION

A. Should Any Adverse Inference be Drawn From the Parties’ Failure to Call Witnesses?

Metro argues that an adverse inference should be drawn because of the Debtors’ failure to call the Co-Plaintiff, Timothy D’Angelo, as a witness at the time of the trial. Further, Blue Chip argues that an adverse inference should be drawn because' of Metro Bank’s failure to call as witnesses Karen Ramm and Salvatore Fazzolari.

Generally,

A missing witness instruction is permissible when a party fails to call a witness who is either (1) “favorably disposed” to testify for that party, by virtue of status or relationship with the parties or (2) “peculiarly available” to that party, such [628]*628as being within the party’s “exclusive control”.

ID Security Systems Canada, Inc. v. Checkpoint Systems, Inc., 249 F.Supp.2d 622, 678 (E.D.Pa.2003), amended, 268 F.Supp.2d 448 (E.D.Pa.2003). However, when a potential witness is equally available or unavailable to the parties, this strongly militates against the drawing of an adverse inference. ID Security Systems Canada, 249 F.Supp.2d at 678, citing, United States v. Vastola, 899 F.2d 211, 235 (3d Cir.1990).

A witness is not unavailable to a party who fails to make any effort to seek his or her testimony. Chevron Corp. v. Donziger, 974 F.Supp.2d 362, 702 (S.D.N.Y.2014).

To invoke the missing witness rule, the burden of proof is. on the party who requests the court to draw an adverse inference. Adelson v. Hananel, 641 F.Supp.2d 65, 77, n. 3 (D.Mass.2009) aff'd 652 F.3d 75 (1st Cir.2011). In this case, I conclude that neither Metro nor Blue Chip have met their burdens concerning application of the missing witness rule. I find that neither party has shown that any missing witness was not equally available or unavailable. I note that Timothy D’Angelo appeared for a pre-trial deposition and there is nothing in the record to suggest that Metro sought his appearance at trial by the issuance and service of a subpoena. Also, nothing in the record establishes whether or not Karen Ramm and Salvatore Fazzolari are currently employees of Metro. I do note that the subject loan closing was held on July 21, 2008— more than six years ago.

Giving due consideration to the circumstances presented, I conclude that no adverse inference should be drawn from the parties’ failures to call Timothy D’Angelo, Karen Ramm, or Salvatore Fazzolari as witnesses.

B. Do the Allegations of the Original Complaint Constitute a Judicial Admission Concerning the Position of Metro Mortgage Three?

Metro argues that the original Complaint, which sought avoidance of the Blue Chip Mortgage, constitutes a judicial admission concerning the priority of Metro Mortgage Three. Reply Br. of Metro Bank to Post Trial Brs. of Debtors and Blue Chip Federal Credit Union, 3-5, ECF No. 100.

Generally, a judicial admission must be an unequivocal statement of fact. Statements of legal theory are not judicial admissions. In re Teleglobe Communications Corp., 493 F.3d 345, 377 (3d Cir.2007). Thus, the characterization by a Chapter 11 debtor of a document as a “lease” did not bind the debtor in a later proceeding which sought a determination as "to whether the document was a “true lease” or a disguised financing agreement. In re Pittsburgh Sports Associates Holding Co., 239 B.R. 75, 81 (Bankr.W.D.Pa.1999).

In support of its argument that certain of the bankruptcy schedules and the original Complaint constitute judicial admissions, Metro cites Community Ass’n Underwriters of America, Inc. v. Rhodes Development Group, Inc., 805 F.Supp.2d 95 (M.D.Pa.2011). I note that this decision was vacated in Community Ass’n Underwriters of America, Inc. v. Rhodes Development Group, Inc., 488 Fed.Appx. 547 (3d Cir.2012). Further, District Judge Rambo’s opinion includes:

Although caselaw appears to render the statements in the original complaint something less than conclusive judicial admissions, the court is nevertheless free to take such statements into account.

[629]*629Community Ass’n Underwriters of America, Inc. v. Rhodes Development Group, Inc., supra, at 108.

On May 27, 2014, with the consent of both Defendants, I directed that the Debtors file an Amended Complaint. An Amended Complaint, which was unverified — -just like the original Complaint — was filed on June 2, 2014.

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Related

Butner v. United States
440 U.S. 48 (Supreme Court, 1979)
Adelson v. Hananel
652 F.3d 75 (First Circuit, 2011)
In Re Teleglobe Communications Corp.
493 F.3d 345 (Third Circuit, 2007)
M & T Mortgage Corp. v. Trosky (In Re Trosky)
371 B.R. 701 (M.D. Pennsylvania, 2006)
In Re Pittsburgh Sports Associates Holding Co.
239 B.R. 75 (W.D. Pennsylvania, 1999)
Pfeiffer v. Bormes (In Re Bormes)
14 B.R. 895 (D. South Dakota, 1981)
Turek v. Dehart (In Re Turek)
346 B.R. 350 (M.D. Pennsylvania, 2006)
Smith v. One West Bank, FSB (In Re Smith)
449 B.R. 221 (M.D. Pennsylvania, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
524 B.R. 624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dangelo-v-blue-chip-federal-credit-union-in-re-dangelo-pamb-2015.