In re Greenberg

526 B.R. 101, 2015 Bankr. LEXIS 608, 2015 WL 869266
CourtUnited States Bankruptcy Court, E.D. New York
DecidedFebruary 27, 2015
DocketCase No. 13-44533 (CEC)
StatusPublished
Cited by11 cases

This text of 526 B.R. 101 (In re Greenberg) 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
In re Greenberg, 526 B.R. 101, 2015 Bankr. LEXIS 608, 2015 WL 869266 (N.Y. 2015).

Opinion

DECISION

CARLA E. CRAIG, Chief United States Bankruptcy Judge

This matter comes before the Court on the motion of the debtor, Jeffrey Green-berg (the “Debtor”), to reopen his bankruptcy ease to enforce his discharge and to hold creditor Anthony Germano (“Germano”) and his counsel, Richard A. Altman, Esq. (“Altman”), in contempt for violating the discharge injunction. Because Germano had notice of this case in time to file an adversary proceeding to determine the dischargeability of his claim, § 523(a)(3)(B) of the Bankruptcy Code is inapplicable. It follows that Germano’s claim was discharged under § 727 of the Bankruptcy Code and, therefore, the Debtor’s motion is granted.

JURISDICTION

This Court has jurisdiction of this core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I) and (0), 28 U.S.C. § 1334, and the Eastern District of New York standing order of reference dated August 28, 1986, as amended by order dated December 5, 2012. This decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Federal Rule of Bankruptcy Procedure 7052.

BACKGROUND

The following facts are not in dispute, except as otherwise indicated.

The Debtor filed this case on July 24, 2013.1 (Chapter 7 Voluntary Petition, 13-44533-CEC, ECF No. 1.) The Debtor’s schedules included a contingent, liquidated, and disputed unsecured claim by Germano valued at an unknown amount. (Schedule F, 13-44533-CEC, ECF No. 1.) Germano’s claim is based on a state court action for fraud, breach of contract, breach of warranty, and unjust enrichment which was commenced in 2009 (the “State Court Action”). (Mot. to Reopen Chapter 7 Case to Enforce Discharge and Discharge Injunction, Ex. A, 13-44533-CEC, ECF No. 18 at 12-23.) On the Debtor’s schedule F, Germano’s address was listed as “Anthony Germano c/o John Gordon Nicol Esq, Seaman & wainwright [sic] LLP, 771 Third Avenue, Ste 1505, New york, N.Y. [sic] 10017.” (Schedule F, 13-44533-CEC, ECF No. 1.)

On September 3, 2013, the Debtor visited his counsel’s office and notified his counsel that Mr. Nicol was no longer Germano’s counsel and that Altman now represented Germano. (Affirmation, 13-44533-CEC, ECF No. 21 at ¶ 3.) On September 24, 2013, an amended schedule F was filed in this ease (the “Amended Schedule F”). (Amended Schedule F, 13-44533-CEC, ECF No. 13.) The Amended Schedule F added the following names and addresses:

Anthony Germano

120 York Road

Thorofare, NJ 08086

Law Office of Richard Altman

285 W Fourth Street

New York, N.Y. 10014

Seaman & Wainwright LLP

160 E 38th Street

Ste 12B

New York, N.Y. 10016

Id. The Debtor’s counsel filed an affidavit of service on September 24, 2013 which stated that an amended schedule B was [103]*103served on the above parties on the same day. (Aff./CertiBcate of Service, 13-44533-CEC, ECF No. 14.)2 On September 6, 2013, the chapter 7 trustee filed a no asset report in this case. The Debtor received his discharge on November 6, 2013 and notice of the Debtor’s discharge was sent by the Bankruptcy Noticing Center to the above addresses on November 8, 2013. (Order Discharging Debtor and Final Decree, 13-44533-CEC, ECF No. 16; BNC Certificate of Mailing with Chapter 7 Discharge and Chapter 7 Final Decree, 13-44533-CEC, ECF No. 17.)

Germano and Altman admit that they each received a copy of the order granting the Debtor a discharge. (Decl. in Opp’n, 13-44533-CEC, ECF No. 20 at ¶ 4 of Germano Affidavit and ¶¶ 1, 6 of Altman Affidavit.) Both assert that this was the first notice of the bankruptcy filing they received. Id. Altman states that, after receiving notice of the discharge, he “reviewed the docket, the petition and applicable law, and determined that the lack of any timely notice or knowledge of the second petition did not bar me from continuing to litigate the debt in the New York Court County Supreme Court.” Id. at ¶ 10. Altman proceeded to file a motion for summary judgment in the State Court Action. (Mot. to Reopen Chapter 7 Case to Enforce Discharge and Discharge Inj., Ex. D, 13-44533-CEC, ECF No. 18 at 36 — 42.) Upon receiving the summary judgment motion, the Debtor’s counsel contacted Altman and informed him that the continuing prosecution of the state court action violated the automatic stay and demanded that Altman withdraw the motion. (Decl. in Opp’n, 13-44533-CEC, ECF No. 20 at ¶ 11 of Altman Affidavit.) Altman refused to do so. Id.

On March 12, 2014, the Debtor filed a pro se motion to re-open his bankruptcy case to enforce the discharge injunction and hold Germano and Altman in contempt. (Mot. to Reopen Chapter 7 Case to Enforce Discharge and Discharge Injunction, 13-44533-CEC, ECF No. 18.) On April 15, 2014, Altman filed a Declaration in Opposition to the Motion (the “Opposition”). Following an evidentiary hearing on July 1, 2014, at which the Debtor and his counsel testified, Altman submitted a memorandum of law (the “Memorandum”) and the Debtor submitted a response to the Memorandum (the “Response”). (Mem. of Law, 13-44533-CEC, ECF No. 29; Debtor’s Resp. to the Creditor Anthony Germano’s Mem. of Law, 13-44533-CEC, ECF No. 30.)

DISCUSSION

The Debtor received his discharge on November 6, 2013. Section 727 of the Bankruptcy Code defines the extent of the Debtor’s discharge: “Except as provided in section 523 of this title, a discharge under ■ subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter....” 11 U.S.C. § 727(b). Section 523 of the Bankruptcy Code, which governs exceptions to discharge, provides that,

“A discharge under section 727 ... of this title does not discharge an individual debtor from any debt—
(3) neither listed nor scheduled under section 521(a)(1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit—
[104]*104(A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing; or
(B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request.”

11 U.S.C. § 523(a)(3). Because one of the asserted bases of Germano’s claim is fraud (in addition to breach of contract, breach of warranty, and unjust enrichment), Germano’s claim could potentially constitute a debt of the kind specified .

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Cite This Page — Counsel Stack

Bluebook (online)
526 B.R. 101, 2015 Bankr. LEXIS 608, 2015 WL 869266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-greenberg-nyeb-2015.