In re Rielly

545 B.R. 435, 2016 Bankr. LEXIS 434, 2016 WL 552693
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedFebruary 11, 2016
DocketCase No. 15-15003-JNF
StatusPublished
Cited by1 cases

This text of 545 B.R. 435 (In re Rielly) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Rielly, 545 B.R. 435, 2016 Bankr. LEXIS 434, 2016 WL 552693 (Mass. 2016).

Opinion

[437]*437MEMORANDUM

Joan N. Feeney, United States Bankruptcy Judge

I. INTRODUCTION

The matter before the Court is the “Motion for Sanctions Against E.I. Franchise Company and Request for Emergency Determination” (the “Motion”) filed by the Chapter 7 debtor, Kevin M. Rielly (the “Debtor”), through which he seeks a determination that E.I. Franchise Company, LLC (“E.I.”) willfully violated the automatic stay when it attached and levied on the Debtor’s checking and brokerage accounts pursuant to a state court trustee process order and refused to release the attachments on those accounts despite notice of the commencement of the bankruptcy ease. Based on the asserted stay violation, the Debtor seeks actual damages, attorneys’ fees and costs as well as punitive damages pursuant to 11 U.S.C. § 362(k)(l). E.I. filed an Opposition to the Motion, and the Debtor filed a Supplement to the Motion. The Court conducted a nonevidentiary hearing on January 8, 2016, deemed the Motion and Opposition to be a contested matter, and scheduled an evi-dentiary hearing due to the existence of disputed issues of material fact.

At the evidentiary hearing held on January 14, 2016, the Court advised the parties that it would hear evidence on the issue of whether E.I. willfully violated the automatic stay and that a determination of damages, if appropriate, would be the subject of a later hearing. Two witnesses, including the Debtor, testified at the evidentiary hearing, and 17 exhibits were introduced into evidence. Both parties submitted requests for proposed findings of fact and conclusions of law.

The Court has jurisdiction over this matter pursuant to '28 U.S.C. § 1334(a) and (b) and the order of reference from the United States District Court for the District of Massachusetts. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (0). Based upon a review of the evidence submitted at the evi-dentiary hearing and the entire course of proceedings in this case,1 the Court now makes the following findings of fact and conclusions of law pursuant to Fed. R. Bankr. P. 7052. For purposes of background, the Court has also taken notice of the averments in the Motion, the Supplement and the Opposition.

II. FACTS AND PROCEDURAL HISTORY

The Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code on December 30, 2015 (the “petition date”) together with all Schedules and Statements. Stewart F.’ Grossman was appointed the Chapter 7 trustee (the “Trustee”). The Section 341 meeting of creditors was scheduled for February 4, 2016, and notice of the meeting was sent to creditors on January 4, 2016. In response to Question 12 on the voluntary petition, “Are you a sole proprietor of any full-or part-time business?” the Debtor listed “Kevin Rielly, dba Joppa Business Solutions” with an address of 29 Maple Street, West Newbury, Massachusetts, which is also the Debtor’s home address. On his Schedule A/B: “Property,” the Debtor listed the following financial accounts in response to Item 17 entitled “Deposits of Money:” a business checking account with a balance of $2,155.48 (the “Joppa checking account”),2 [438]*438a personal checking account with a balance of $249.42, and a brokerage/investment account with TD Ameritrade with a balance of $14,713.48 (the “brokerage account”). Other than the reference to TD Ameri-trade, the Debtor did not list the names of the institutions where thé accounts were located or the applicable account numbers, although the Debtor held both checking accounts at Citizens Bank. On his original Schedule C: “The Property You Claim as Exempt,” the Debtor selected the federal exemptions pursuant to 11 U.S.C. § 522(b)(2) and claimed the following amounts in his financial accounts as exempt pursuant to § 522(d)(5): the full balances in the Joppa checking account ($2,155.48) and the personal checking account ($249.42) and $6,573.10 of the $14,713.48 held in the brokerage account. On Schedule E/F: “Creditors Who Have Unsecured Claims,” the Debtor listed E.I. with a nonpriority unsecured claim in the amount of $90,644.49.

On January 5, 2016, the Debtor filed the Motion in which he represented that he sought bankruptcy relief as a result of a failed business he owned and operated as a franchisee of E.I. called Upper Deck Training, which did business as “Extra Innings,” a baseball/softball training facility in Woburn, Massachusetts. According to the Debtor, he learned that E.I. attached and levied on the Joppa checking and the brokerage accounts on Thursday December 31, 2015, one day after the petition date. The Debtor asserted that immediately upon learning of the attachment of the accounts, his counsel contacted E.I.’s counsel to request that the attachments be released and that the attached funds be returned to the Debtor, but that E.I failed and refused to do so. The Debt- or filed the Motion seeking damages, costs and fees for E.I.’s alleged willful violation of 11 U.S.C. § 362(a)(1), (2), (3) and (6). To the extent E.I. asserted that it is a secured creditor with respect to the funds in those accounts, the Debtor maintained that it also violated 11 U.S.C. § 362(a)(4) and (a)(5).

In its Opposition, E.I. asserted that the Debtor owes it a total of $114,971.39, exclusive of attorneys’ fees and costs, stemming from an unpaid 2014 judgment which arose due to the Debtor’s breach of a franchise agreement with E.I. It maintained that its “temporary” refusal to release its trustee process attachments on the accounts did not violate the stay, its status as a secured creditor entitles it to seek adequate protection, that any obligation it has to release the attachments is an obligation owed to the Trustee, not the Debtor, and that it is entitled to reasonable time to seek relief from stay to obtain adequate protection of its interests and to comply with any turnover obligation. It also asserted that upon the Debtor’s request for release of the trustee process attachments, it had requested the Debtor provide it with assurances that he would “not dispose of the assets and put them out of reach of creditors and the duly-appointed Trustee.” According to E.I., the Debtor refused to give any such assurance. E.I. also asserted in the Opposition that it would shortly file a motion for relief from stay.3

[439]*439As stated above, the Court conducted a nonevidentiary hearing on January 8, 2016, at which counsel to the Trustee was also present. The Debtor represented that a deposit of $1,110.04 in prepetition wages was made into the Joppa checking account postpetition on December 31, 2015, one day after the filing of the petition.

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Cite This Page — Counsel Stack

Bluebook (online)
545 B.R. 435, 2016 Bankr. LEXIS 434, 2016 WL 552693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rielly-mab-2016.