Pergament v. Thilman (In re Thilman)

548 B.R. 1, 2016 Bankr. LEXIS 927
CourtUnited States Bankruptcy Court, E.D. New York
DecidedMarch 24, 2016
DocketCase No. 12-75157-las; Adv. Pro. No. 13-08172-las
StatusPublished
Cited by9 cases

This text of 548 B.R. 1 (Pergament v. Thilman (In re Thilman)) 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
Pergament v. Thilman (In re Thilman), 548 B.R. 1, 2016 Bankr. LEXIS 927 (N.Y. 2016).

Opinion

MEMORANDUM DECISION AND ORDER

Louis A. Scarcella, United States Bankruptcy Judge

I. Introduction

On October 22, 2013, plaintiff Marc A. Pergament (“plaintiff’) filed this action against the debtor, Norman Thilman (“defendant”), to revoke his discharge pursuant to 11 U.S.C. §§ 727(d)(3) and 727(a)(6)(A). Under 11 U.S.C. § 727(a)(6)(A), as incorporated by 11 U.S.C. § 727(d)(3), a debtor’s discharge shall be revoked if the debtor refuses to obey a lawful order of the court, except an order to respond to a material question or to testify. See 11 U.S.C. § 727(a)(6)(A). In his complaint, plaintiff asserts'that defendant refused to obey the order of this Court, dated August 6, 2013, directing him to produce certain documents and appear for an examination under Rule 2004 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”). It is this conduct, plaintiff contends, which calls for revocation of the discharge previously granted to defendant.

[4]*4Now pending before the Court is plaintiffs unopposed motion dated September 8, 2015 for sanctions against defendant under Rule 37(b)(2) of the Federal Rules of Civil Procedure1 (“Fed. R. Civ. P.”) based on his failure to obey this Court’s orders dated December 23, 2014 and July 9, 2015 directing him to produce certain documents and appear for a deposition (“Motion”). [Dkt. No. 40]. Defendant did not file a response to the Motion and did not appear at the hearing on this matter, which was held on November 12, 2015. Having considered the arguments presented by plaintiff, the relevant law, and the record in this case, and for the reasons set forth below, the Motion for terminating sanctions is granted, and judgment shall be entered by the Court revoking defendant’s discharge.

II. Jurisdiction

The Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1334(b) and the Standing Order of Reference entered by the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. § 157(a), dated August 28, 1986,- as amended by Order dated December 5, 2012, effective nunc pro tunc as of June 23, 2011. Venue lies under 28 U.S.C. § 1409. This is a core proceeding under 28 U.S.C. § 157(b)(2)(J). A bankruptcy judge may hear and finally decide any core proceeding. 28 U.S.C. § 157(b)(1). An action to revoke a debt- or’s discharge under 11 U.S.C. § 727(d)(3) “stems from the bankruptcy itself,” and may constitutionally be decided by a bankruptcy judge. Stern v. Marshall, 564 U.S. 462, 131 S.Ct. 2594, 2618, 180 L.Ed.2d 475 (2011). Accordingly final judgment is within the scope of the Court’s jurisdictional and constitutional authority.

III. Background

The factual background giving rise to the Motion was detailed in the Court’s prior Memorandum Decision dated July 9, 2015 (the “July 9 Memorandum Decision”) [Dkt. No. 34], familiarity with which is assumed. Accordingly, the Court recounts below only those facts pertinent to the resolution of the Motion.

Defendant received a discharge under 11 U.S.C. § 727 on February 1, 2013.' On July 9, 2013, plaintiff filed a motion pursuant to Bankruptcy Rule 2004 seeking an order (i) authorizing the examination of defendant and (ii) directing defendant to produce documents (the “Rule 200k Motion”). Defendant did not file a response to the Rule 2004 Motion. After a hearing on notice to defendant and his bankruptcy counsel, Rocco & Rocco, P.C. (“Rocco”), an order was entered on August 6, 2013 granting the Rule 2004 Motion (the “Rule 200k Order*’).

In accordance with the Rule 2004 Order, plaintiff issued a subpoena (the “200k Subpoena”) directing defendant to produce all requested documents by August 20, 2013 and to appear for an examination (the “Rule 200k Examination”) at his office on August 29, 2013. By letter dated August 27, 2013, Rocco advised plaintiff that defendant had relocated to New Port Richey, Florida. At the request of Rocco, the Rule 2004 Examination was adjourned to allow defendant additional time to search for responsive documents. Thereafter, plaintiff sought to reschedule the Rule 2004 Examination. Receiving no response to his request for an adjourned date, plaintiff, by letter dated September 18, 2013, de[5]*5manded that defendant appear for his Rule 2004 Examination on October 3, 2013. The letter warned that if defendant failed to respond to the 2004 Subpoena and appear at the Rule 2004 Examination, plaintiff would pursue all remedies available to him, including an action to revoke defendant’s discharge.

By letter dated October 3, 2013 [Dkt. No. 6-4], Rocco informed plaintiff that defendant would not be coming to New York for the Rule 2004 Examination because he did not have sufficient funds to pay the associated travel costs or any of his creditors as he is on disability, and one half of his disability payment is subject to garnishment by his first wife for back child support. In addition, Rocco advised that “due to [defendant’s] current financial situation in Florida, he is not concerned about having his discharge revoked.” Rocco further advised that defendant notified him that his services were no longer needed. Thus, defendant did not produce any of the documents specified in the 2004 Subpoena and did not appear for his rescheduled Rule 2004 Examination,

On October 22, 2013, plaintiff commenced this adversary proceeding against defendant seeking to revoke his discharge pursuant to 11 U.S.C. §§ 727(d)(3) and 727(a)(6)(A) based on his failure to obey the Rule 2004 Order. [Dkt. No. 1], On March 18, 2014, defendant filed an answer to the complaint. [Dkt. No. 14].

On April 7, 2014, defendant was served with plaintiffs First Request for Production of Documents and a Notice of Deposition for May 22, 2014.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
548 B.R. 1, 2016 Bankr. LEXIS 927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pergament-v-thilman-in-re-thilman-nyeb-2016.