Gordon v. Mcghee Auto Sales, Inc. (In re Goins)

598 B.R. 497
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedMarch 18, 2019
DocketCASE NO. 13-70835-BEM; ADVERSARY PROCEEDING NO. 17-5255-BEM
StatusPublished
Cited by2 cases

This text of 598 B.R. 497 (Gordon v. Mcghee Auto Sales, Inc. (In re Goins)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordon v. Mcghee Auto Sales, Inc. (In re Goins), 598 B.R. 497 (Ga. 2019).

Opinion

Barbara Ellis-Monro, U.S. Bankruptcy Court Judge

This matter is before the Court on Plaintiff's Motion for Summary Judgment (the "Motion"). [Doc. 11]. This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(A), (E), and (O), and the Court has jurisdiction pursuant to 28 U.S.C. § 1334(b).1 This proceeding arises out of Debtors' alleged unauthorized use of funds from the settlement of a postpetition personal injury claim to purchase vehicles from Defendant as gifts for Debtors' children and grandchildren.

Plaintiff, the Chapter 7 Trustee, filed a complaint seeking to avoid the unauthorized postpetition transfers, to recover the value of the transfers from Defendant, to preserve the transfers for the estate, and to obtain turnover of the funds. Plaintiff filed his complaint (the "Complaint") on October 12, 2017. [Doc. 1]. Defendant filed an Answer (the "Answer") on November 13, 2017. [Doc. 4]. Plaintiff's Motion includes a Statement of Material Facts as to Which There Is No Genuine Issue to Be Tried (the "SMF"). [Doc. 12]. Defendant filed a Response to Trustee's Motion for Summary Judgment (the "Response" or "Resp."), including an Affidavit of Clifford McGhee, CEO of McGhee Auto Sales (the "McGhee Aff.") [Doc. 15].

I. Summary Judgment Standard

Summary judgment is governed by Fed. R. Bankr. P. 7056 and Fed. R. Civ. P. 56, which provides that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The substantive law applicable to the case determines which facts are material.

*500Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute of material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. Id.

The moving party has the burden of establishing its entitlement to summary judgment. Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991). The moving party must identify the pleadings, discovery materials, or affidavits that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once this burden is met, the nonmoving party cannot merely rely on allegations or denials in its own pleadings. Anderson , 477 U.S. at 249, 106 S.Ct. at 2510 (citations omitted). Rather, the nonmoving party must present specific facts supported by evidence that demonstrate there is a genuine material dispute. Id.

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, ... or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). Material facts contained in the moving party's statement of material facts that are not specifically controverted by the nonmoving party will be deemed admitted. BLR N.D. Ga. 7056-1(a)(2).

II. Material Facts Not in Dispute

Debtors Ivan Goins and Gabriella Gibbs filed a Chapter 13 petition on September 24, 2013. [Complaint ¶ 7; Answer ¶ 3; SMF ¶ 1]. The Court entered an order confirming their Chapter 13 plan on April 14, 2014. [Complaint ¶ 8, Answer ¶ 4; SMF ¶ 2]. The plan provided no dividend to general unsecured creditors. [Id. ]. On December 11, 2015, the Chapter 13 Trustee filed a motion to dismiss the bankruptcy case for failure to make plan payments. [Complaint ¶ 9; Answer ¶ 5; SMF ¶ 3]. On April 13, 2016, the Court entered an order converting the case to Chapter 7, at which time Plaintiff was appointed as Chapter 7 Trustee. [Complaint ¶ 10; Answer ¶ 6; SMF ¶ 4].

At the second reset meeting of creditors, held on July 11, 2016, Debtors testified that on October 6, 2014, they were both injured in an automobile accident. [Complaint ¶ 14; SMF ¶ 7; Resp. at 4]. A year after the accident, Debtors received a settlement of $ 500,000 (the "Settlement"). [Complaint ¶ 14; SMF ¶ 8; Resp. at 4]. Debtors never amended their sworn statements to disclose the personal injury claim or their sworn schedules to schedule the Settlement. [Complaint ¶ 15; SMF ¶ 9; Resp. at 4]. Debtors testified that approximately $ 250,000 went to legal fees, expenses, and medical costs. [Complaint ¶ 15; SMF ¶ 10; Resp. at 4]. On October 17, 2015, Debtors deposited $ 286,971.37 (the "Remaining Settlement Funds") in their joint bank account. [Complaint ¶ 16; SMF ¶ 11]. When questioned by Plaintiff, Debtors testified that they only had about $ 20,000 of the Remaining Settlement Funds. [Complaint ¶ 17; SMF ¶ 12].

Plaintiff directed Debtors to immediately turn over those funds to him. [Complaint ¶ 17; SMF ¶ 13]. To date, Debtors have turned over $ 16,000 in cash, plus the Chapter 13 Trustee returned $ 3,161.18. [Complaint ¶ 17; SMF ¶ 14]. Debtors further testified that their children and grandchildren all received gifts from the Remaining Settlement Funds. [Complaint ¶ 18; SMF ¶ 15]. Debtors have six children between the ages of 23 and 34, all of whom *501received between $ 10,000 and $ 20,000 as gifts.

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Bluebook (online)
598 B.R. 497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-mcghee-auto-sales-inc-in-re-goins-ganb-2019.