In re Zapas

530 B.R. 560, 73 Collier Bankr. Cas. 2d 1155, 86 U.C.C. Rep. Serv. 2d (West) 496, 2015 Bankr. LEXIS 1487, 60 Bankr. Ct. Dec. (CRR) 263, 2015 WL 2065764
CourtUnited States Bankruptcy Court, E.D. New York
DecidedMay 1, 2015
DocketCase No. 14-72098-reg
StatusPublished
Cited by5 cases

This text of 530 B.R. 560 (In re Zapas) 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 Zapas, 530 B.R. 560, 73 Collier Bankr. Cas. 2d 1155, 86 U.C.C. Rep. Serv. 2d (West) 496, 2015 Bankr. LEXIS 1487, 60 Bankr. Ct. Dec. (CRR) 263, 2015 WL 2065764 (N.Y. 2015).

Opinion

MEMORANDUM DECISION

(Re: Motion to Dismiss)

Robert E. Grossman, United States Bankruptcy Judge

Before the Court is a motion by the alleged debtor, John Zapas (“Zapas”), to dismiss this involuntary chapter 7 petition. The involuntary petition originally was filed by Christopher Vardaros, Nick Melis-sionos, Costas Katsifas, Konstantinos Tsa-has (“Judgment Creditors”), four judgment creditors holding a single judgment, and by Hung Far Realty, LLC (“Hung”). The petition was later joined by M. Peter' Construction Corp. (“M. Peter”) (the Judgment Creditors, Hung and .M. Peter are referred to herein as the “Petitioning Creditors”). Zapas argues that he has more than 12 creditors and § 303 of the Bankruptcy Code requires that the petition have been filed by three or more creditors. He argues that: (1) the Petitioning Creditors did not meet this requirement because the Judgment Creditors together constitute a single holder of a claim under § 303(b)(1); (2) because the judgment entered in favor of the Judgment Creditors was due to the malpractice of his state court attorney the claim is subject to a bona fide dispute; (3) Hung’s claim is also subject to a bona fide dispute because Zapas’s motion for leave to appeal Hung’s judgment was pending at the time the involuntary petition was filed; and (4) joining M. Peter subsequent to the filing of the involuntary petition did not cure the numerosity deficiencies, because M. Peter’s state law right of action is barred by the statute of limitations and thus M. Peter is not the “holder of a claim” under § 303(b)(1). Alternatively, Zapas argues the Court should abstain from exercising jurisdiction over this involuntary petition because both Zapas and his creditors will be better served by dismissal. Zapas requests that the Court impose attorney’s fees and costs under § 303(f)(1), and sanctions for bad faith pursuant to § 303(f)(2).

The Court finds that the Petitioning Creditors have satisfied the requirements of § 303(b)(1), i.e., that the involuntary petition was filed by “three or more entities, each of which is ... a holder of a claim ... that is not contingent as to liability or the subject of a bona fide dispute ...” and such claims are unsecured in an aggregate amount greater than $15,325. The Court finds that under the plain language of the Code, the Judgment Creditors each are the “holder, of a claim” against Zapas based on the pre-petition state court judgment which is, at this time, valid and enforceable.

Zapas’s remaining arguments. under §§ 303(b) and 305 are unavailing. However, this motion will be adjourned for further consideration of whether the order for relief should enter in this case. Specifically, there remains to be decided whether Zapas is generally not paying his debts as they become due pursuant to § 303(h)(1).

FACTS

I. The Involuntary Petition

On May 6, 2014, Hung and the Judgment Creditors filed an involuntary chapter 7 petition against Zapas pursuant to 11 U.S.C. § 303 (the “Petition”). According to the Petition, the Judgment Creditors each hold a claim against the Debtor in the [564]*564amount of $656,683.15, and Hung holds a claim for $460,374 (Petition 2, ECF No. 1). The Petitioning Creditors allege that Za-pas’s debts are primarily business debts, an involuntary can be brought against him, and that Zapas is generally not paying his debts as they become due. {Id.) The Petitioning Creditors filed a statement with the Petition indicating that they are all creditors of Zapas, they hold claims against him' that are “liquidated as to amount and noncontingent as to. liability ... exceeding] $1,100,000” in any liens they hold, and that Zapas has fewer than twelve creditors. {Id. at 2-3.) Later, on June 9, 2014, M. Peter joined the Petition. (Joinder, ECF No. 20.) M. Peter assorts that it holds a claim against Zapas in the amount of $7,450. {Id.)

II. The Petitioning Creditors

A. Vardaros, Melissionos, Katsifas, and Tsahas

The Judgment Creditors hold a pre-petition state court judgment against Zapas in the amount of $656,683.15. The judgment resulted from an action that the Judgment Creditors commenced against Zapas to recover money they allegedly gave to Zapas, pursuant to an oral agreement, to purchase real estate to be held in trust for them. The Judgment Creditors alleged that Zapas purchased the property, but did not make the agreed upon transfer of the property to them.

The Judgment Creditors alleged seven causes of action in the complaint underlying their judgment: (1) to quiet title pursuant to Article 15; (2) to impose constructive trust; (3) to recover damages for unjust enrichment; (4) to recover for breach of contract; (5) to recover for fraud; (6) for declaratory judgment; and (7) to impose and equitable lien. Zapas moved for summary judgment on all seven claims, and the state court denied summary judgment on all of them except the claim seeking to quiet title pursuant to Article 15. The court found that there were triable issues of fact remaining and scheduled a trial on liability and damages. However, Zapas failed to appear and defaulted at trial. The state court struck Zapas’s answer from the record and awarded a default judgment in favor of the Judgment Creditors. The state court judgment does not apportion the amount of damages that is owed to each Judgment Creditor individually. {Id., Ex. B.) The judgment states as follows:

IT IS ADJUDGED, that plaintiffs Christopher Vardaros, Nick Melissionos, Costa Kastsifas (sic) and Konstantinos Tsahas ... shall recover of defendant John Zapas ... $656,683.15 and that plaintiffs Christopher Vardaros, Nick Melissionos, Costas Kastsifas (sic) and Konstantinos Tsahas shall have execution therefore.

Zapas contends that the default was caused by his former attorney, Sean Serpe, because he failed to appear in court. (Zapas Aff. 2, ¶ 6,' ECF No. 8.) Serpe has since been suspended from practicing law. (Id., Ex. A) Zapas filed a motion to vacate the default judgment, but it was denied. {Id.) Zapas filed an appeal, and lost on appeal. {Id.) The appellate court found that despite the allegation of failure of his attorney, Zapas’s pattern of willful default and neglect would not be excused. (Decision, Vardaros v. Zapas, 105 A.D.3d 1037, 963 N.Y.S.2d 408 (2013)).

B. Hung Far

Hung holds a pre-petition state court judgment against Zapas in the amount of $460,374 (Zapas Aff., Ex. C, D.) Hung entered into a written contract to purchase real property from Zapas for $2,999,000 in March 2007. (Id.) Hung brought an action in state court seeking specific performance [565]*565on the contract or return of the $299,000 deposit. (Id.) A nonjury trial was held and judgment was entered in favor of Zapas on September 12, 2011. (Id.) Hung appealed, and on July 10, 2013, the judgment was reversed and the appellate court directed that judgment enter in favor of Hung in the amount of $299,000 plus interest from March 17, 2008. (Id.) Zapas filed a motion for leave to appeal the reversal and, despite the pendency of the instant involuntary bankruptcy proceeding, the New York Court of Appeals denied Zapas’s motion for leave to appeal on July 1, 2014. (Petitioning Creditors’ Letter, July 7, 2014, ECF No.

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530 B.R. 560, 73 Collier Bankr. Cas. 2d 1155, 86 U.C.C. Rep. Serv. 2d (West) 496, 2015 Bankr. LEXIS 1487, 60 Bankr. Ct. Dec. (CRR) 263, 2015 WL 2065764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-zapas-nyeb-2015.