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

543 B.R. 692
United States Bankruptcy Court, E.D. New York·Decided January 12, 2016·No. Case No. 8-14-70190-reg; Adv. Proc. No. 8-14-70190-reg·Published·Cited by 7 cases

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] to § 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.

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

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