Jou v. Adalian (In re Adalian)

500 B.R. 402
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedNovember 5, 2013
DocketBankruptcy No. 5-11-bk-04952 RNO; Adversary No. 5-11-ap-00480 RNO
StatusPublished
Cited by6 cases

This text of 500 B.R. 402 (Jou v. Adalian (In re Adalian)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jou v. Adalian (In re Adalian), 500 B.R. 402 (Pa. 2013).

Opinion

OPINION

ROBERT N. OPEL, II, Bankruptcy Judge.

Pending before the Court is the Plaintiffs Motion for Partial Summary Judgment Regarding Counts IV, V, and VI of the Amended Complaint (“Summary Judgment Motion”). Each count seeks to deny the Debtor/Defendant a Chapter 7 discharge pursuant to a particular subsection of 11 U.S.C. § 727 of the Bankruptcy Code. For the reasons stated hereafter, I will grant the Summary Judgment Motion regarding Counts IV and VI. The Summary Judgment Motion on Count V will be denied.

I. Jurisdiction

The Court has jurisdiction of the matters complained of herein pursuant to 28 U.S.C. §§ 1334 and 157(b)(1) and (2). The matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I) and (J).

II. Facts and Procedural History

This is the third dispositive motion I have considered in the within Adversary Proceeding. In the early 1990s, the Plaintiff, Emerson M.F. Jou (“Jou”), made loans to the Debtor/Defendant, Gregory M. Adalian (“Adalian”). Adalian filed a Chapter 7 bankruptcy in this Court on July 14, 2011. Jou filed a timely Complaint which sought a determination of the dischargeability of his claim against Adali-an. More to the point, the Complaint also objected to Adalian’s Chapter 7 discharge.

I previously wrote opinions on two different motions to dismiss in this Adversary Proceeding. A more detailed procedural history may be obtained by referring to those Opinions. The Opinions are: Jou v. Adalian (In re Adalian), 474 B.R. 150 (Bankr.M.D.Pa.2012) and Jou v. Adalian (In re: Adalian), 481 B.R. 290 (Bankr.M.D.Pa.2012).

Today, I consider Jou’s Summary Judgment Motion. Jou seeks summary judgment regarding Counts IV, V, and VI of his Amended Complaint. Each of the subject counts objects to Adalian’s Chapter 7 discharge. Count IV is based upon 11 U.S.C. § 727(a)(3) 1, Count V is based upon § 727(a)(4)(A), and Count VI is based upon § 727(a)(5).

Jou supported his Summary Judgment Motion by way of a Plaintiffs Statement of Material Facts. Jou has also submitted the Brief of Plaintiff, Emerson M.F. Jou in Support of Motion for Partial Summary Judgment, as well as numerous exhibits which reflect matters obtained through the discovery process. Adalian opposes the Summary Judgment Motion and has filed the Debtor/Defendant’s Counter-Statement of Material Facts, as well as Defendant’s Brief in Opposition to Plaintiffs Motion for Partial Summary Judgment. Attached to Adalian’s Counter-Statement of Material Facts is a copy of the transcript of a July 16, 2013, videotaped deposition of Jou. The Summary Judgment Motion is thus ripe for decision.

III.Discussion

A. Summary Judgment Standard

Federal Rule of Bankruptcy Procedure 7056 makes Federal Rule of Civil Procedure 56 applicable to bankruptcy adversary proceedings. Pursuant to Rule 56, the Court shall grant summary judgment [406]*406to the moving party “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). Therefore, the movant has the burden to prove the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Madera v. Ameriquest Mortg. Co. (In re Madera), 363 B.R. 718, 724 (Bankr.E.D.Pa.2007); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (U.S.1986). A material fact is a fact that might affect the outcome of the suit under the governing law. An issue is genuine when there is sufficient evidence supporting the claimed factual dispute so as to require a judge or jury to resolve the parties’ differing versions of the truth at trial. Official Comm. Of Unsecured Creditors v. Baldwin (In re Lemington Home for Aged), 659 F.3d 282, 290 (3d Cir.2011). In evaluating the evidence, the Court must view the facts in the light most favorable to the non-moving party and draw all inferences in favor of that party. Shull v. PNC Bank (In re Shull), 493 B.R. 453, 455 (Bankr.M.D.Pa.2013) (internal citations omitted).

When deciding a motion for summary judgment, a court may consider matters in the record, including pleadings, depositions, answers to interrogatories, admissions, and any affidavits. Fed. R. Bankr.P. 7056(c); Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 276 (3d Cir.2001) (in deciding a summary judgment motion, the record should be reviewed as a whole picture).

Pursuant to Federal Rule of Evidence 201,1 take judicial notice of the documents on the docket for this Adversary Proceeding, as well as the documents on the docket in Adalian’s underlying Chapter 7 bankruptcy. Abbatiello v. Nat’l Collegiate Trust (In re Abbatiello), 484 B.R. 655, 658 (Bankr.M.D.Pa.2013); Steinman v. Spencer (In re Argus Group 1700, Inc.), 206 B.R. 737, 757 n. 8 (Bankr.E.D.Pa.1996).

It is important to remember that “the court’s role in deciding a motion for summary judgment is not to weigh evidence, but rather to determine whether the evidence presented points to a disagreement that must be decided at trial, or whether the undisputed facts are so one sided that one party must prevail as a matter of law.” DeShazo v. Heffernan (In re DeShazo), 354 B.R. 720, 722 (Bankr.E.D.Pa.2006) (internal citations omitted).

Throughout my analysis, I will view the facts in the light most favorable to the non-moving party, Adalian. I also note that to sustain an objection to Chapter 7 discharge under § 727, the allegations must be proven by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287-88, 111 S.Ct. 654, 660, 112 L.Ed.2d 755 (1991); United States Tr. v. Zimmerman (In re Zimmerman), 320 B.R. 800, 806 (Bankr.M.D.Pa.2005); Staiano v. Sheets (In re Sheets), 269 B.R. 339, 340 (Bankr.M.D.Pa.2001).

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Bluebook (online)
500 B.R. 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jou-v-adalian-in-re-adalian-pamb-2013.