Ruby v. Ryan (In re Ryan)

472 B.R. 714, 2012 WL 1144333, 2012 Bankr. LEXIS 1458
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedApril 4, 2012
DocketBankruptcy No. 08-50805-FJS; Adversary No. 10-05026-FJS
StatusPublished
Cited by14 cases

This text of 472 B.R. 714 (Ruby v. Ryan (In re Ryan)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ruby v. Ryan (In re Ryan), 472 B.R. 714, 2012 WL 1144333, 2012 Bankr. LEXIS 1458 (Va. 2012).

Opinion

MEMORANDUM OPINION

FRANK J. SANTORO, Bankruptcy Judge.

This matter comes before the Court upon Plaintiffs Motion for Default Judgment, The Court has subject-matter jurisdiction over this proceeding pursuant to 28 U.S.C. §§ 1334(b) and 157(a) and the General Order of Reference from the United States District Court for the Eastern District of Virginia dated August 15, 1984. This matter arises under Title 11 of the United States Code and is a core proceeding pursuant to 28 U.S.C. § 27459012 157(b)(2)(A), (E), (F), (H), (K) and (0). The following constitutes the Court’s findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure. Fed. R. Bankr.P. 7052. For the reasons set forth below, the Court finds that Defendants are in default and, therefore, the Court will enter a Default Judgment against Defendants, entitling Plaintiff to recovery under 11 U.S.C. § 550(a).

I. PROCEDURAL BACKGROUND

On July 16, 2008 Mykal S. Ryan (the “Debtor”) filed a voluntary petition under Chapter 7 of Title 11 of the United States Code (the “Petition”).1 (Case No. 08-50805-FJS, Doc. No. 1.) Relief was ordered. David R. Ruby (the “Plaintiff’) was appointed as Chapter 7 Trustee and continues to serve in that capacity.

Thereafter, on July 15, 2010, the Plaintiff initiated the above-captioned adversary proceeding by filing a complaint (the “Complaint”) against the Debtor’s parents, Helen E. Ryan (“Mrs. Ryan”) and John J. Ryan, Jr. (“Mr. Ryan”) (collectively the “Defendants”). (Doc. No. 1.) The Complaint seeks: (i) to avoid and recover fraudulent transfers, fraudulent conveyances and voluntary conveyances; (ii) to avoid and recover preferential transfers; (iii) to avoid and recover post-petition transfers; (iv) turnover of assets; and (v) a judgment of sums determined to be due the bankruptcy estate by the Defendants. (Compl. ¶¶ 42-74.)

On July 21, 2010, the Court issued a Summons and Notice in Adversary Proceeding (the “Summons”). (Doc. No. 3.) The Summons established an initial pretrial conference date of September 28, 2010, and required the Defendants to file [717]*717an answer or other responsive pleading no later than August 20, 2010. (Doc. No. 3.) The Plaintiff effectuated service of the Summons and Complaint upon the Defendants at their San Diego, California dwelling, via first-class mail, postage prepaid, on July 28, 2010. See Fed. R. Bankr.P. 7004(b)(1). (Doc. No. 4.) Thereafter, on August 18, 2010, Mrs. Ryan filed, pro se, a responsive pleading styled as “Motion to Request Dismissal of the Complaint” (the “First Motion to Dismiss”). (Doc. No. 5.) On August 25, 2010, the Clerk of Court issued to Mrs. Ryan a Confirmation of Request for Hearing, which established a September 28, 2010 hearing date on the First Motion to Dismiss and instructed Mrs. Ryan to provide notice of the same. (Doc. No. 6.)

Thereafter, on September 27, 2010, Mrs. Ryan filed a document with the Court entitled “Motion to Stay Adversary Proceeding” (the “Motion to Stay”). (Doc. No. 11.) The Motion to Stay requested that the Court “stay the [above-captioned matter] for [njinety (90) days and re-evaluate at that time,” due to an illness affecting Mr. Ryan. (Doc. No. 11.)

On September 28, 2010, the Court convened a pre-trial conference (the “Pre-trial Conference”) and a hearing on the First Motion to Dismiss. (Doc. No. 12.) The Defendants failed to appear, although they were notified of the date, time, and location of the Pre-trial Conference and of the hearing on the First Motion to Dismiss, and were afforded an opportunity to attend the same via telephone. (Doc. No. 12.) At the Pre-trial Conference, the Court established a trial date of May 11, 2011, a common discovery deadline of March 31, 2011, and a bar date of April 20, 2011 for all dispositive motions, including motions for summary judgment; the Court entered a pre-trial order memorializing the same on October 4, 2010. (Doc. No. 13.) Additionally, the Court noted that although the Motion to Stay was filed one day prior, it was not accompanied by a request for an expedited hearing. Therefore, the Court stated that the Motion to Stay was not properly before the Court at that time, and that it would be set for a hearing in the ordinary course.2 Subsequently, on November 22, 2010, the Court administratively dismissed the First Motion to Dismiss for failure to prosecute. (Doc. No. 27.) Neither Defendant filed, thereafter, any other responsive pleading or motion pursuant to Federal Rule of Bankruptcy Procedure 7012.

Following an approved substitution of counsel for the Chapter 7 Trustee, the Court convened a continued pre-trial conference on March 22, 2011 (the “Continued Pre-trial Conference”). (Doc. Nos. 31, 48.) The Defendants were notified of the Continued Pre-trial Conference but failed to attend, despite being afforded the opportunity to appear via telephone. (Doc. No. 48.) Thereafter, the Court entered an amended pre-trial order on March 28, 2011 (the “Amended Pre-trial Order”). (Doc. No. 51.) The Amended Pre-trial Order established a new common discovery deadline date of June 30, 2011, and provided that “all motions, including Motions for Summary Judgment ... are to be filed on or before July 15, 2011.” (Doc. No. 51.) The Amended Pre-trial Order further provided that “[a]ll exhibits proposed by the Plaintiff and the Defendant(s) are to be exchanged with the other parties and filed with the Court at least ten (10) days prior to [the] trial” date of August 31, 2011. (Doc. No. 51.)

[718]*718On July 5, 2011, Mrs. Ryan filed, pro se, a second motion with the Court, styled as “Motion to Dismiss or Transfer Adversary Proceeding” (the “Second Motion to Dismiss”). (Doc. No. 67.) The Court issued a Confirmation of Request for Hearing on July 7, 2011, which set a hearing date of July 26, 2011 on the Second Motion to Dismiss, instructed Mrs. Ryan to provide notice of the same, and afforded Mrs. Ryan an opportunity to appear via telephone. (Doc. No. 68.) Thereafter, on July 14, 2011, Mrs. Ryan filed with the Court a letter (the “Letter”) objecting to the July 26, 2011 hearing date on the Second Motion to Dismiss. (Doc. No. 72.) The Court treated the Letter as a motion to continue the hearing on the Second Motion to Dismiss (the “Motion to Continue”) (Doc. No. 75.), and scheduled a hearing on the same for August 16, 2011.3 (Doc. No. 79.)

Subsequently, on July 13, 2011, the Plaintiff filed a Motion for Default Judgment pursuant to Federal Rule of Bankruptcy Procedure 7055. (Doc. No.

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Bluebook (online)
472 B.R. 714, 2012 WL 1144333, 2012 Bankr. LEXIS 1458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruby-v-ryan-in-re-ryan-vaeb-2012.