Jacob Agai, 291 Avenue P, LLC v. Antoniou (In re Antoniou)

515 B.R. 9, 2014 WL 3973855, 2014 Bankr. LEXIS 3458
CourtUnited States Bankruptcy Court, E.D. New York
DecidedAugust 14, 2014
DocketCase No. 12-45622(CEC); Adv. Pro. No. 12-01299-CEC
StatusPublished
Cited by37 cases

This text of 515 B.R. 9 (Jacob Agai, 291 Avenue P, LLC v. Antoniou (In re Antoniou)) 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
Jacob Agai, 291 Avenue P, LLC v. Antoniou (In re Antoniou), 515 B.R. 9, 2014 WL 3973855, 2014 Bankr. LEXIS 3458 (N.Y. 2014).

Opinion

Chapter 7

DECISION

CARLA E. CRAIG, Chief United States Bankruptcy Judge

This matter comes before the court on the motion of Jacob Agai, 291 Avenue P, LLC, and Summerfield Developers, Inc. (the “Plaintiffs”), seeking summary judgment pursuant to Federal Rule of Civil Procedure 56(a), made applicable here by Federal Rule of Bankruptcy Procedure 7056, against Stylianos Antoniou (the “Debtor”), seeking denial of discharge under 11 U.S.C. §§ 727(a)(2)(A), 727(a)(3), 727(a)(4)(A), and 727(a)(5).

The uncontested facts show that the Debtor transferred and concealed property with intent to hinder, delay, or defraud creditors within one year of the filing by deliberately diverting his paychecks and other income to his wife’s bank account in order to prevent his creditors from garnishing these funds; that he concealed or failed to keep or preserve recorded information from which his financial condition might be ascertained; and that he knowingly and fraudulently made a false oath by failing to disclose the existence of the bank account containing his earnings, failing to disclose the transfers of these funds to his wife, and significantly misstating his income for 2010 and 2011 on his schedules and Statement of Financial Affairs filed in the case. Accordingly, for the reasons set forth below, Plaintiffs’ motion for summary judgment is granted.

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b), and the Eastern District of New York standing order of reference dated August 28,1996. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(J). 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 facts set forth below are not in dispute, except as otherwise noted.

The Debtor filed a voluntary petition under chapter 7 of the Bankruptcy Code on July 31, 2012 (the “Filing Date”). (Petition, 12-45622-CEC, ECF No. 1). On October 24, 2012, Plaintiffs filed an adversary proceeding objecting to the Debtor’s discharge pursuant to 11 U.S.C. § 727(c). (Compl., 12-01299-CEC, ECF No. 1.) On December 16, 2013, Plaintiffs filed a motion for summary judgment (the “Motion”). (Plaintiffs Mot. for Leave to Amend the Compl. and Summ. J., 12-01299-CEC, ECF No. 14.)

Debtor owned one third of a construction company called Diontech Consulting, Inc. (“Diontech”) from approximately 2000 to the beginning of 2008. (Schedule B, 12-45622-CEC, ECF No. 1; Deck of Michael Paul Bowen, Ex. 8, pp. 5:11-9:10, pp. 21:16-22:13, 12-01299-CEC, ECF No. 16-12.) According to Plaintiffs, in 2007, Dion-tech breached two construction contracts. [14]*14(Compl. ¶ 1, 12-01299-CEC, ECF No. 1.) After a trial in the Supreme Court of the State of New York, County of Richmond, Justice Kim Dollard issued a decision awarding a judgment of approximately $4.8 million, in favor of Plaintiffs, against Diontech, on September 19, 2011. (Decl. of Michael Paul Bowen, Ex. 6, 12-01299-CEC, ECF No. 16-10.) Plaintiffs subsequently commenced a post judgment proceeding pursuant to Article 52 of the New York Civil Practice Law and Rules (N.Y. C.P.L.R.) to, inter alia, pierce the corporate veil of Diontech and hold the Debtor personally liable, jointly and severally, with Diontech and the other Diontech principals. (Plaintiffs’ Mot. for Leave to Amend the Compl. and Summ. J., 12-01299-CEC, ECF No. 14 at 6-7.)

On January 9, 2018, Plaintiffs filed a motion for relief from the automatic stay seeking to pursue this state court litigation against the Debtor. (Mot. for Relief from Stay, 12-45622-CEC, ECF No. 11.) That motion was granted on February 13, 2013. (Order Granting Mot. For Relief From Stay, 12-45622-CEC, ECF No. 16.) On August 19, 2013, Justice Dollard entered a decision and order piercing the corporate veil and holding the Debtor jointly and severally liable for the $5.8 million judgment against Diontech. (Decl. of Michael Paul Bowen, Ex. 7, 12-01299-CEC, ECF No. 16-11.)

In his petition, the Debtor did not list any interests in bank accounts on his schedule of personal property. (Schedule B, 12-45622-CEC, ECF No. 1.) However, the Debtor’s wife maintained a bank account at TD Bank (the “Bank Account”). (Supp. Aff. in Opp’n of Suzanne Antoniou, 12-01299-CEC, ECF No. 31 at ¶ 2; Decl. of Michael Paul Bowen, Ex. 8, pp. 58:11-59:9, 12-01299-CEC, ECF No. 16-12.) From 2010 to until the end of 2011, the Debtor worked for Centex Builders Inc. (“Centex”), a construction company, and received regular paychecks.1 (Supp. Aff. in Opp’n of Stylianos Antoniou ¶ 13, 12-01299-CEC, ECF No. 30 at ¶¶ 13-15.) According to the Debtor’s affidavit, he directed Centex to make his payroll checks payable to his wife in order to avoid garnishment of his income by creditors. Id. at ¶ 13. These checks were then deposited into the Bank Account. (See Supp. Aff. in Opp’n of Stylianos Antoniou, Ex. H, 12-01299, ECF No. 30-8; Decl. of Michael Paul Bowen, Ex. 33, 12-01299-CEC, ECF No. 16-43.) From March 2010 to November 2011, over $60,000 of the Debtor’s paychecks were deposited into the Bank Account. (Decl. of Michael Paul Bowen, Ex. 33, 12-01299-CEC, ECF No. 16 — 43.) The Debtor states that, in diverting his pay to his wife’s bank account, he “did not intend to defraud a creditor; [he] wanted to avoid the frustration of the process.” (Supp. Aff. in Opp’n of Stylianos Antoniou, 12-01299-CEC, ECF No. 30 at ¶ 14.)

The Debtor left Centex in November 2011 and began working for his current employer, Zeus Construction, in December of 2011. (Supp. Aff. in Opp’n of Stylianos Antoniou, 12-01299, ECF No. 30 at ¶¶ 15-16.) The Debtor states that during the time he was employed by Zeus Construction, he followed a practice of cashing his paychecks and depositing the cash into the Bank Account. (Supp. Aff. in Opp’n of Stylianos Antoniou, 12-01299-CEC, ECF No. 30 at ¶ 17.) The Debtor’s wife submitted an affidavit stating that she was unemployed since 2002, except for a period in [15]*152004. (Supp. Aff. in Opp’n of Suzanne Antoniou, 12-01299-CEC, ECF No. 31 at ¶ 3.) During the period between December, 2011 and the Filing Date, almost $70,000 was deposited into the Bank Account. (See Supp. Aff. in Opp’n of Stylianos Anto-niou, Ex. H, 12-01299-CEC, ECF No. 30.) Based on the Debtor’s and his wife’s admissions, it is clear that most or all these funds are proceeds of the Debtor’s paychecks from Zeus Construction, or rental income from property owned by the Debt- or, either individually or jointly. (Hr’g Tr. 18:14-16 & 19:19-21, May 8, 2014, 12-01299, ECF No.

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Cite This Page — Counsel Stack

Bluebook (online)
515 B.R. 9, 2014 WL 3973855, 2014 Bankr. LEXIS 3458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacob-agai-291-avenue-p-llc-v-antoniou-in-re-antoniou-nyeb-2014.