Powell v. Shorty's Used Cars (In re Powell)

555 B.R. 907
CourtUnited States Bankruptcy Court, S.D. Georgia
DecidedAugust 26, 2016
DocketNumber 14-30471-EJC; Adversary Number 14-03021-EJC
StatusPublished

This text of 555 B.R. 907 (Powell v. Shorty's Used Cars (In re Powell)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Powell v. Shorty's Used Cars (In re Powell), 555 B.R. 907 (Ga. 2016).

Opinion

MEMORANDUM OF DECISION

Edward J. Coleman, III, Judge United States Bankruptcy Court Southern District of Georgia

The Debtor, Todd Powell, filed his Chapter 13 petition and plan on November 19, 2014. (Dckt. 1). In his Schedule- “B”, the Debtor listed two vehicles, a 1997 Dodge 3500 truck and a 1999 Honda Passport automobile. Id. The Debtor listed Shorty’s Used Cars (“Shorty’s”) as holding a security interest in each vehicle. Id. As of the petition date, the Debtor had not made payments on the vehicles for more than a year. The Debtor’s plan proposed to retain the vehicles and continue to make monthly payments to Shorty’s at an interest rate of 5.25%. On November 12, 2014, seven (7) days prior to the Debtor filing bankruptcy, Shorty’s dispatched two wreckers to repossess both vehicles. For reasons that will be explained below, Shorty’s only repossessed the Honda Passport automobile.

On November 19, 2014, the date of the filing of the petition, Debtor’s counsel faxed a letter to Shorty’s demanding return of the Honda Passport as property of the estate. Shorty’s declined the request but offered to allow the debtor to redeem the vehicle for $4,026.36. The Debtor responded by filing the instant adversary proceeding. This Court held a trial on the matter on March 14, 2016. The Debtor did not appear at trial. The owner of Shorty’s, Wendell Bearden, did not appear either. However, Debtor’s counsel had subpoenaed Shorty’s agent, Ed Saunders, whose limited testimony provided sufficient evidence for the Court to decide the merits of the case. Upon conclusion of the trial, the Court took the matter under advisement. Based on the evidence presented and other matters in the record the Court finds that Shorty’s has willfully violated the automatic stay provisions o f 11 U.S.C. § 362.

I. JURISDICTION

This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1334(a), 28 U.S.C. § 157(a), and the Standing Order of Reference signed by then Chief Judge Anthony A. Alaimo on July 13,1984. This is a “core proceeding” within the meaning of 28 U.S.C. § 157(b)(2)(E). In accordance with Bankruptcy Rule 7052, the Court makes the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

A. The Parties’ Contentions

The Debtor contends that at the time of filing his bankruptcy he still had an interest in the Honda Passport, namely his right to redemption, and thus the vehicle [910]*910became property of the Debtor’s bankruptcy estate. Accordingly, the Debtor argues that Shorty’s violated the automatic stay provisions of 11 U.S.C. § 362 by refusing to return the Honda Passport upon the Debtor’s demand and by conditioning the return of the vehicle upon full payment of any past-due balance. The Debtor further contends that he suffered actual damages as a result of Shorty’s violation.

In Shorty’s proposed findings of facts and conclusions of law, it suggested the following defense:

The. defendant financed two vehicles to the Plaintiff/Debtor. Both vehicles under separate contracts, were in default and the payments were nearly one year behind. Prior to the Plaintiff filing the bankruptcy action, the Defendant sent [wreckers] to repossess the two cars. Mr. Powell offered Mr. Bearden, the principal [of] Shorty’s [Used] Cars that if Shorty’s would only repossess one car and leave the other, the truck, Mr. Powell would catch up the late payments and Mr. Powell promised that there would be no more late payments. Mr. Bearden accepted the offer, allowing Mr. Powell to keep the truck. The defendant has possession of the car.

(Adv. Dckt. 45).

It is Shorty’s position that the Debtor gave up any interest he had in the Honda Passport when he entered into the above-mentioned agreement with Mr. Bearden. Accordingly, the Honda Passport never became property of the estate as defined by 11 U.S.C. § 541. This would have presented an issue for the Court to decide, however, as will be explained, Mr. Bearden did not appear at the trial and no other evidence of any such agreement was submitted to the Court.

B. The Pre-Trial Proceedings

On December 19, 2014, the Debtor served the adversary Complaint (adv. dckt. 1) on Shorty’s, who then filed its First Answer to Complaint (adv. dckt. 4) on January 20, 2015. The parties held their Rule 26(f) conference on April 13, 2015, but did not submit a Rule 26(f) report. Accordingly, the Court held a show cause hearing on June 9, 2015 due to the parties’ failure to file such a report. The parties did not file their Rule 26(f) report until June 24, 2015. (Adv. Dckt. 16). As a result, the Court was unable to file its Scheduling Order until June 29, 2015. (Adv. Dckt. 17). Neither party pursued discovery.

1. The Parties’ Rule 26(a)(1) Disclosures

On February 17, 2015, Debtor’s counsel served Shorty’s counsel with the Debtor’s Rule 26(a)(1) disclosures and identified the Debtor as the only witness with information regarding the case. (Adv. Dckt. 6). The disclosures also asserted that the only documents in the Debtor’s possession were attached to the Complaint. However, there are no documents attached the Debtor’s Complaint. On September 23, 2015, Debt- or’s counsel supplemented the Debtor’s disclosures and identified that the Debtor’s turnover demand letters dated November 19, 2014, proof of insurance on the Honda Passport, and Shorty’s response letter dated November 20, 2014 were currently in possession of the Debtor. (Adv. Dckt. 24, 25).

For whatever reason, Shorty’s found some difficulty in making its Rule 26(a)(1) disclosures. On September 13, 2015 the Court held a pre-trial conference, at which point it was brought to the Court’s attention that Shorty’s had yet to serve Debt- or’s counsel with its disclosures. At the conference, counsel for Shorty’s stated that he thought he had already sent Shorty’s Rule 26(a)(1) disclosures to Debtor’s [911]*911counsel. However, Debtor’s counsel denied receiving any such disclosures. After giving Shorty’s counsel the benefit of the doubt, the Court gave Shorty’s a deadline of September 16, 2015 to file its Rule 26(a)(1) disclosures1 Shorty’s did not file its Rule 26(a)(1) disclosures until March 11, 2016, well beyond the 72-hour deadline granted by this Court and only three days prior to trial. (Adv. Dckt. 49). In its Rule 26(a)(1) disclosures, Shorty’s identified Ed Saunders and Wendell Bearden as the only two parties with information regarding the case. Shorty’s also asserted that the car title for the Honda Passport, which was never produced, was the only document in its possession.2 (Adv. Dckt. 49).

2. The Pre-Trial Order

This case ran into further issues when the parties attempted to file a proposed pre-trial order.

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

Related

Jove Engineering, Inc. v. Internal Revenue Service
92 F.3d 1539 (Eleventh Circuit, 1996)
Weber v. SEFCU (In Re Weber)
719 F.3d 72 (Second Circuit, 2013)
Motors Acceptance Corp. v. Rozier
597 S.E.2d 367 (Supreme Court of Georgia, 2004)
Thompson v. General Motors Acceptance Corp., LLC
566 F.3d 699 (Seventh Circuit, 2009)
In Re Fitch
217 B.R. 286 (S.D. California, 1998)
In Re Zajni
403 B.R. 891 (M.D. Florida, 2008)
Roche v. Pep Boys, Inc. (In Re Roche)
361 B.R. 615 (N.D. Georgia, 2005)
Unified People's Federal Credit Union v. Yates (In Re Yates)
8 A.L.R. Fed. 2d 837 (Tenth Circuit, 2005)
Brown v. Joe Addison, Inc. (In Re Brown)
210 B.R. 878 (S.D. Georgia, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
555 B.R. 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-shortys-used-cars-in-re-powell-gasb-2016.