Davis v. Iadevito (In re Lenders Mortgage Services, Inc.)

224 B.R. 707, 1997 Bankr. LEXIS 2287
CourtUnited States Bankruptcy Court, E.D. Missouri
DecidedSeptember 26, 1997
DocketBankruptcy No. 94-41527-293; Adversary No. 96-4320-293
StatusPublished

This text of 224 B.R. 707 (Davis v. Iadevito (In re Lenders Mortgage Services, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Iadevito (In re Lenders Mortgage Services, Inc.), 224 B.R. 707, 1997 Bankr. LEXIS 2287 (Mo. 1997).

Opinion

MEMORANDUM OPINION

DAVID P. McDONALD, Bankruptcy Judge.

JURISDICTION

This Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334, 151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(E) which the Court may hear and determine.

BACKGROUND

1. The creditors of Lenders Mortgage Services, Inc. (Lenders), filed an involuntary petition of bankruptcy against Lenders on March 18,1994.

2. Leslie A. Davis was appointed trustee of Lenders’ bankruptcy estate.

3. On September 27, 1997, the Trustee filed this adversary complaint on behalf of the estate against defendants Joseph Iadevi-to and Theresa Janson seeking the turnover of at least $772,955.11. The Trustee’s com[708]*708plaint was comprised of four counts; the first sought turnover under section 542 of the Bankruptcy Code, the second sought a money judgment, the third was based on a theory of money had and received, and the fourth alleged a breach of contract.

4. Defendant Joseph Iadevito, who was and remains incarcerated, filed a pro se answer to the complaint on November 7, 1996. Iadevito denied that he owed money to the Debtor, denied that he possessed any assets belonging to the Debtor’s estate and, by way of defense, asserted that approximately a month and one half before the filing of the involuntary petition he had caused $377,-000.00 of his own funds to be placed into one of the Debtor’s accounts.

5. Janson has not filed an answer to the Trustee’s complaint.

6. The Trustee served Iadevito with his First Set of Interrogatories and his First Request for Production of Documents on November 22,1996.

7. For reasons undisclosed by the record the Trustee served Iadevito a second copy of his First Request for Production of Documents on November 25,1996.

8. On January 8,1997, the Court received Iadevito’s first Motion to Extend Discovery Period. Iadevito mentioned his limited access to the prison’s law library, his limited access to the prison’s copiers, and his limited access to the prison’s telephones as reasons for needing additional time to complete discovery. Iadevito also noted that depending upon the answers the Trustee provided to the first set of interrogatories he had directed to the Trustee and the responses he received to other mail inquiries he had made, he might need to issue further interrogatories.

9. The Trustee served Iadevito with his Second Set of Interrogatories and his First Requests for Admissions on January 30, 1996.

10. The Court granted Defendant Iadevi-to’s Motion and extended the discovery deadline to May 13, 1997. The Court subsequently granted Iadevito’s second Motion to Extend Discovery Period and extended that period to September 3,1997.

11. The Trustee filed a Motion for Partial Summary Judgment supported with an affidavit. The Trustee seeks summary judgment against Theresa Janson because she has not filed an answer in this matter despite being properly served with a summons and copy of the adversary complaint. The Trustee argues he is entitled to summary judgment against Joseph Iadevito because the pertinent facts were deemed admitted when Iadevito failed either to request an extension of the time to answer the requests or to file answers to the requests for admissions within thirty (30) days after service.

12. Iadevito filed a response to the Trustee’s Motion for Partial Summary Judgment. He explains that he cannot answer the Trustee’s interrogatories of him until the Trustee answers the interrogatories he has served on the Trustee. In further response, Iadevito explains that the Trustee confused him by serving his requests for admissions and second set of interrogatories as “one discovery item” and argues, without citing legal support, that serving requests for admissions in such a form obviates the need to comply with Federal Rule of Civil Procedure 36’s thirty-day time limit and requires only that the recipient of such requests comply with the general discovery deadline established for the case.

13. In the same filing as his response to the Trustee’s Motion for Partial Summary Judgment, Iadevito included a Motion to Compel the PlaintiffiTrustee to respond to interrogatories Iadevito had sent to him.

14. The Trustee filed a response to Ia-devito’s combined responsive pleading and Motion to Compel. In the only portion of the Trustee’s pleading that can be construed as addressing Iadevito’s Motion to Compel, the Trustee stated that Iadevito’s argument that he could not answer the Trustee’s discovery until first receiving responses to his discovery from the Trustee was “illogical and unfounded.”

15. On July 8, 1997, Kim Fine filed a Motion to Quash Defendant Joseph Iadevito’s First Request for Testimony of a Non-Party by Deposition upon Written Questions. Fine [709]*709argued that there was “no legal authority for said written interrogatories.”

16. Defendant filed a response to Fine’s Motion to Quash in which he asserted that Fine was his executive assistant when he was Debtor’s president. Iadevito further stated that as his executive assistant Fine had authority to: write checks and otherwise transfer the Debtor’s funds; deposit money into his personal accounts; establish general ledger accounts on the Debtor’s books and charge items to those accounts; and obligate the Debtor on promissory notes. Iadevito argued that because fine had such extensive knowledge of the Debtor’s operations and because the Trustee had the opportunity to depose Fine, he should be permitted to question her.

17. On July 10, 1997, Iadevito filed a second response to the Trustee’s Motion for Partial Summary Judgment together with Interim Responses to the Trustee’s First Requests for Admissions and Second Set of Interrogatories Directed to Joseph Iadevito. In his response, Iadevito admits he pleaded guilty to felony bank fraud before the United States District Court for the Eastern District of Missouri and that he is now incarcerated at a prison camp in Marion, Illinois. Iadevito also admits Debtor advanced and/or loaned him $100,000.00 to use as a down payment on a home in Wentzville, Missouri. However, in response beyond the scope of the requested admission, Iadevito asserts that the $100,-000.00 was probably repaid but that he could not definitively state whether it was repaid without knowing the disposition of the funds paid by his wife in a suit the Trustee brought against her.

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224 B.R. 707, 1997 Bankr. LEXIS 2287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-iadevito-in-re-lenders-mortgage-services-inc-moeb-1997.