In re Barbaria

229 B.R. 124, 13 Tex.Bankr.Ct.Rep. 142, 1998 Bankr. LEXIS 1752
CourtUnited States Bankruptcy Court, E.D. Texas
DecidedDecember 7, 1998
DocketBankruptcy Nos. 97-42392, 98-42262
StatusPublished
Cited by1 cases

This text of 229 B.R. 124 (In re Barbaria) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Barbaria, 229 B.R. 124, 13 Tex.Bankr.Ct.Rep. 142, 1998 Bankr. LEXIS 1752 (Tex. 1998).

Opinion

MEMORANDUM OPINION

DONALD R. SHARP, Chief Judge.

The Court has before it the question of the dismissal of the captioned related bankruptcy [125]*125proceedings along with all attendant adversary proceedings in either case. This memorandum opinion deals with both of the above cited cases which were combined for hearing. Separate orders will be issued as to each case.

The hearing before the Court is actually a rehearing on the Court’s earlier order of dismissal. The history of this case is that Joseph A. Barbaria filed a Chapter 11 proceeding which was subsequently converted to Chapter 7 with the appointment of Mark Weisbart as Chapter 7 Trustee. During some of the contentious litigation involved in that case, a bankruptcy proceeding for the Barbaria Family Trust, a trust established by and controlled by Joseph A. Barbaria was filed. It is difficult to recite the history of this ease but it can safely be summed up in saying that no meaningful steps toward a reorganization in chapter 11 were ever accomplished and no meaningful steps toward collection and liquidation of a Chapter 7 estate have ever been accomplished. The heart of the dispute that first arose in the Chapter 11 proceeding was the ownership of a home in which Mr. Barbaria lives. The property, earlier stipulated to be worth $700,000.00, is a residence located in Plano, Texas. The mortgage indebtedness against the property is somewhere between $600,-000.00 and $650,000.00. By agreement of the parties, the stay was lifted while the Barba-ria case was still pending as a Chapter 11 and immediately litigation arose over attempts enjoin any foreclosure with the parties eventually working out various agreements which may or may not have been consummated at this time. It is clear there is no substantial equity in this property for the benefit of either the bankruptcy estate of the Barbaria Family Trust or Joseph A. Bar-baria depending on who the ultimate owner of the property might turn out to be.

It is undisputed that the principal creditor of Mr. Barbaria is the Internal Revenue Service. Evidence has established that Mr. Bar-baria apparently failed to file tax returns from sometime in the early 1980s through 1993 or 1994. At some point, apparently in 1993, the Internal Revenue Service instituted an “amnesty” program wherein parties who had failed to file tax returns were allowed to file with the understanding that criminal prosecution for failure to file would be waived. Mr. Barbaria took advantage of that window of opportunity and apparently filed ten or twelve years of delinquent tax returns resulting in a tax liability of about 1.2 million dollars. The dispute now centers over the Internal Revenue Service’s efforts to collect the tax liability.

This Court held numerous hearings in the bankruptcy proceeding of Joseph Barbaria both before it was converted and after conversion to Chapter 7 and at one point, orally expressed the opinion that the matter should probably be dismissed. This conclusion was prompted by several factors. First, it was apparent to the Court that no meaningful efforts were being made toward a reorganization of a debtor with an ongoing business; second, it was apparent that the only creditor taking an active interest in the case was the Internal Revenue Service so that this Court was essentially refereeing a two party dispute; and third, it was clear that Mr. Barba-ria had no intention of cooperating in a full disclosure of his assets or his income and was only using the bankruptcy process to thwart the Internal Revenue Service in its collection efforts. Mr. Barbaria was placed on the stand on at least three different occasions and consistently refused to answer any question beyond his name and address by invoking his Fifth Amendment privilege against self-incrimination. This Court certainly does not have any quarrel with Mr. Barbaria’s right to invoke his Fifth Amendment privilege against self-incrimination and does not attribute an inference of bad faith or bad motive on Mr. Barbaria’s part by virtue of his having invoked his constitutional right not to testify. What this Court did note, was that Mr. Barbaria’s refusal to testify along with the totality of the circumstances in this case made it clear that no meaningful bankruptcy reorganization or liquidation could take place. No creditor, other than the Internal Revenue Service, appeared in the action and all proceedings were nothing more than two party disputes between Mr. Barba-ria and the Internal Revenue Service which primarily centered around his failure to disclose information to them and their continued [126]*126attempts to get him to answer questions under oath. None of the attempts were successful.

Motions to dismiss Barbaria’s case were filed by the Debtor and motions to dismiss the Trust case (later withdrawn) were filed by the Internal Revenue Service. This Court, in keeping with its earlier expressed intention that the cases probably should be dismissed entered a short memorandum opinion and order of dismissal as to both cases without a hearing. Following that hearing, the United States Trustee’s office filed a request for rehearing and asserted that it was improper for the Court to dismiss the case without giving all parties and all Creditors the opportunity to demonstrate that the best interest of Creditors would be served by maintaining the case in bankruptcy court. The primary authority cited by the U.S. Trustee’s office was the Littlecreek case which did not deal with dismissal but with the fact that the Court should not find bad faith on the part of a debtor without a full evidentiary hearing. The Internal Revenue Service joined in the United States Trustee’s motion for reconsideration and creditors, K and B Lewis Texas Ltd. and Gary Drilling, also filed a joinder requesting reconsideration of the Court’s dismissal. The Court granted the request and set the matter for hearing at which all parties were given the opportunity to demonstrate that there was some meaningful reason to keep this ease in bankruptcy court.

This opinion constitutes the Court’s findings of fact and conclusions of law in regard to that hearing and disposes of the issues before the Court. Upon reconsideration and upon allowing all parties to develop a full evidentiary record, the Court is convinced that its earlier inclination to dismiss these cases was the correct one. The United States Trustee elected not to participate in the hearing since its position was not that it had information which would require the case to remain in bankruptcy court, but simply that it was procedurally improper to dismiss the case without allowing all of the Creditors an opportunity to conduct a full evidentiary hearing. In essence, the relief requested by the United States Trustee had been granted by simply scheduling the evidentiary hearing.

The hearing, as had all other proceedings in this case, quickly turned into nothing more than a two party dispute between the Internal Revenue Service and Barbaria. Gary Drilling, who had filed an objection to dismissal on the grounds that it intended to file a dischargeability complaint under § 523 of the Code, did not appear at the hearing and K & B Lewis appeared at the hearing through counsel and simply reiterated by way of oral argument that it preferred that the cases not be dismissed and asserted that the best interest of Creditors would be met by maintaining the Barbaria entities in a bankruptcy proceeding. K & B had no evidence to present.

The Chapter 7 Trustee appeared and stated that he believed that the Chapter 7 estate was administratively insolvent.

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Robert Earl Turner Jr.
W.D. Texas, 2022

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Bluebook (online)
229 B.R. 124, 13 Tex.Bankr.Ct.Rep. 142, 1998 Bankr. LEXIS 1752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-barbaria-txeb-1998.