Fido's Fences, Inc. v. Bordonaro (In re Bordonaro)

543 B.R. 692
CourtUnited States Bankruptcy Court, E.D. New York
DecidedJanuary 12, 2016
DocketCase No. 8-14-70190-reg; Adv. Proc. No. 8-14-70190-reg
StatusPublished
Cited by7 cases

This text of 543 B.R. 692 (Fido's Fences, Inc. v. Bordonaro (In re Bordonaro)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fido's Fences, Inc. v. Bordonaro (In re Bordonaro), 543 B.R. 692 (N.Y. 2016).

Opinion

DECISION AFTER TRIAL

Robert E. Grossman, United States Bankruptcy Judge

This matter is before the Court pursuant to an adversary proceeding commenced by Fido’s Fences, Inc. (the “Plaintiff’) against James J. Bordonaro (the “Defendant”) under 11 U.S.C. §§ 523(a)(2)(A) .& (a)(2)(B), and 727(a)(2)(A), (a)(2)(B), (a)(3), (a)(4)(A), (a)(4)(B), & (a)(5). At, trial, and consistent with the Joint Pretrial Memorandum filed by the parties, the legal, issues presented for decision related solely to 11 U.S.C. §§ 727(a)(3), (a)(4)(A), and (a)(4)(B). As such, the Plaintiff is deemed to have abandoned the causes of action arising under 11 U.S.C. '§ 523 and § 727(a)(2)(A), (a)(2)(B), and (a)(5).

The opportunity for an honest but unfortunate debtor to escape the yoke of debt and receive'a fresh start is among the founding principles of this nation, predating the republic. Such a fresh start, as contemplated by the Bankruptcy Code, is not a right but a privilege that is dependent upon strict compliance with the requirements of the Code. Relief from debt is absolutely contingent upon a debtor being forthcoming about his financial condition. The record in this case demonstrates numerous omissions and inaccuracies in the Defendant’s bankruptcy filings, the Defendant’s failure to produce documents, despite Court order, and the Defendant’s redaction of bank statements without justification. These instances of dishonest conduct are grounds to deny the Defendant’s discharge under 11 U.S.C. § 727. While the Defendant attempted to rebut the claims by proffering explanations for his deficiencies in disclosure at trial, the explanations did not provide legitimate bases for the Defendant’s conduct. In addition. The multiple inaccuracies contained in the Defendant’s petition and schedules were not cured" by the Defendant’s amendment and explanations at trial.

The Court finds that the Plaintiff has met its burden and established by a preponderance of the evidence that the Defendant concealed, destroyed, mutilated, falsified, or failed to keep or preserve records, without justification when the Defendant (i) produced redacted bank statements without" justification and (ii) failed to produce his log of cash transactions, despite ■ order by the -Court. The Defendant’s explanation for his actions rings hollow in the face of the record in this case. Accordingly, the Court denies the Defendant’s discharge pursuant to §• 727(a)(3). Additionally, the Court finds that the Plaintiff has established by a preponderance of the evidence that the Defendant knowingly and fraudulently made a false oath in the Defendant’s bankruptcy case when the Defendant, under penalty of perjury, misstated his income and assets and misrepresented that the Plaintiff held an unsecured claim rather than a secured claim on his Scheduled and Statement of Financial Affairs. The Defendant’s explanation that that the inaccuracies were the result of innocent mistakes is insufficient to rebut the prima facie case established by the Plaintiff.. Accordingly, the Court denies the Defendant’s discharge pursuant [696]*696to § 727(a)(4)(A).1

PROCEDURAL HISTORY

On January 20, 2014 (the “Petition Date”), the Defendant filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code. On October 2, 2014, the Plaintiff commenced this adversary proceeding against the Defendant by filing a complaint (the “Complaint”). On October 31,' 2014, the Defendant filed an answer to the Complaint. On May 6, 2015, the parties filed a joint pre-trial memorandum (the “Joint Pre-Trial Memorandum”). On May 12, 2015 and September 17, 2015, a trial was held, at which the Defendant testified and Exhibits 1 through 25 were each admitted, and at the closing of which this matter was deemed submitted: •

FACTS

The Joint Pretrial Memorandum sets forth certain agreed facts. Additional facts were developed from the trial testimony and exhibits. The Defendant is the sole owner and operator of Advance Graphics Design and Engineering and Advance Graphics Design and Development Corp. (collectively “Advance Graphics”). On March 8, 2013, the Plaintiff obtained a money judgment in the Supreme Court of New York, County, of Nassau, against the Defendant and Advance Graphics as a. result of the Defendant’s default under an October 12, 2012, Stipulation of Settlement (the “Judgment”). On the same day, the Plaintiff docketed, the Judgment with the Nassau County Clerk’s Office. The Plaintiff filed an execution against property with the Suffolk County Sheriffs Office to collect on the Judgment. An auction of the Defendant’s real property located at 1705 North Gardiner Drive, Bay Shore, New York 11706 (“1705 North Gardiner”) was seheduled; for January 21, 2014. One day before the scheduled sale, the Defendant filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code (the “Petition”), which stayed the auction.

The Defendant signed the Petition under penalty of perjury, and acknowledges having read the Petition prior to signing. The Defendant indicated on Schedule A that his'real property at 1705 North Gardiner was not encumbered by any liens or claims. ■ The Defendant indicated on Schedule B that he maintained a business checking account at New York Commercial Bank with a balance of $100. The Defendant listed only one secured creditor on Schedule D, Nationstar Mortgage, as holding a first mortgage on thé Defendant’s real property at 1707 North Gardiner Drive, Bay Shore, New York, 11706 (“1707 North Gardiner”). The Defendant listed the Plaintiff on Schedule F as an Unsecured, nonpriority creditor-with a claim in the amount of $150,175.14. The Defendant stated on Schedule I that he receives $1,995.58 per month as net income from operating a business and $925 per month in food stamps, for a total monthly income of $2,920.58. The Defendant further stated that his monthly expenses of $2,927.80 result in a monthly net income of -$7.22. The Defendant indicated on his Statement of Financial Affairs (“SOFA”) that his sole source of income for 2012 through 2014 was his business, Advance Graphics, and that his total income was $22,255 for 2012, $23,000 for 2013, and $3,100 in 2014 prior to the Petition Date. In addition, the Defendant indicated on his SOFA that he had closed his Capital One checking and savings accounts in March 2013, with remaining balances of $200 and $50, respectively. [697]*697The Defendant also stated on-his SOFA that none of his property had been attached, garnished, or seized within one year preceding the Petition Date and that the suit commenced by the Plaintiff against the Defendant had been “settled per stipulation.” Additionally, the Defendant stated on his SOFA that the Defendant had no ownership interest in, or management duties of, any business, and had not been self-employed, within six years preceding the Petition Date. The Defendant indicated on his Form 22A Chapter 7 Statement of Current Monthly Income and Means-Test Calculation (“Means Test”) that his sole source of income was from operating a business and that he had monthly gross receipts from the operation of a business of $3,353.17, monthly ordinary and necessary business expenses of $1,390.50, and, accordingly, a current monthly income of $1,962.67, or $23,552.04 per year.

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Bordonaro v. Fido's Fences, Inc.
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Cite This Page — Counsel Stack

Bluebook (online)
543 B.R. 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fidos-fences-inc-v-bordonaro-in-re-bordonaro-nyeb-2016.