Schlant v. Galan (In re Galan)

522 B.R. 744
CourtUnited States Bankruptcy Court, W.D. New York
DecidedDecember 23, 2014
DocketBankruptcy No. 10-23016; Adversary Nos. 14-02012, 14-02017
StatusPublished
Cited by2 cases

This text of 522 B.R. 744 (Schlant v. Galan (In re Galan)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schlant v. Galan (In re Galan), 522 B.R. 744 (N.Y. 2014).

Opinion

DECISION AND ORDER GRANTING THE MOTION FOR ENTRY OF DEFAULT JUDGMENT BY THE CHAPTER 7 TRUSTEE AND REVOKING THE DEBTOR’S DISCHARGE PURSUANT TO 11 U.S.C. § 727

PAUL R. WARREN, Bankruptcy Judge.

Before the Court are separate motions, by the Chapter 7 Trustee and the United States Trustee, requesting entry of default judgment pursuant to Rule 55(b) FRCP and Rule 7055 FRBP, in each of the above adversary proceedings. ' The substitute Chapter 7 Trustee, Mark J. Schlant (“Chapter 7 Trustee”) commenced an adversary proceeding against the Debtor— Defendant, Eduardo Galan (“Galan”) on August 29, 2014 (ECF AP 14-02012 Nos. 5, 6).1 The United States Trustee, William K. Harrington (“UST”), subsequently commenced an adversary proceeding against Galan on October 14, 2014 (ECF AP 14-02017 Nos. 6, 10). Each adversary proceeding seeks revocation of Galan’s discharge, pursuant to 11 U.S.C. § 727(d)(2), because of (1) Galan’s failure to report, as property of the bankruptcy Estate, the post-petition entitlement to or acquisition of fire insurance proceeds with respect to Estate property located at 27 Potomac Street, Rochester, New York (“Potomac Property”), and (2) Galan’s failure to voluntarily disclose both the post-petition transfer of the Potomac Property to a third party and the failure to report sale proceeds resulting from the transfer, in violation of 11 U.S.C. § 727(a)(2)(B). Additionally, each adversary proceeding seeks revocation of Galan’s discharge, pursuant to 11 U.S.C. § 727(d)(3) and (a)(6), based on Galan’s failure to obey an August 26, 2013 Order of this Court requiring Galan to produce documents specified in the Chapter 7 Trustee’s earlier motion requesting a Rule 2004 FRBP examination.

On November 25, 2014, Galan filed an untimely response — in the form of a letter dated November 19, 2014 — to the UST’s complaint (ECF AP 14-02017 No. 8). The UST subsequently filed a motion for default judgment on December 4, 2014, requesting the Clerk’s entry of default and arguing that Galan’s letter was untimely and did not constitute an answer to the UST’s complaint (ECF AP 14-02017 No. 11). The Chapter 7 Trustee filed an affidavit in support of a request for entry of default by the Clerk of Court, together with a motion for entry of a default judgment by the Court, on December 5, 2014, asserting that Galan had failed to answer or otherwise respond to the Chapter 7 Trustee’s summons, served two months prior (ECF AP 14-02012 No. 7). On December 10, 2014, Galan filed identical letters in each adversary proceeding — dated December 5, 2014 — addressing the allegations in both complaints and responding to the pending motions for entry of default judgment (ECF AP 14-02012 No. 10; ECF AP 14-02017 No. 14).

The separate motions for default judgment by the Chapter 7 Trustee and the UST seek the same relief — entry of default judgment revoking Galan’s Chapter 7 discharge — arising out of the same series of transactions or events.2 Because the [747]*747grant of the relief sought by the Chapter 7 Trustee will necessarily render the UST’s motion superfluous, the Court will turn its attention to the Chapter 7 Trustee’s motion for default judgment, as it presents the most procedurally sound basis upon which to grant judgment in favor of the Chapter 7 Trustee. See infra Part III. Based on the written submissions of all parties, the oral arguments made by the parties, and the testimony of Galan at the December 18, 2014 hearing on the motions, the Chapter 7 Trustee’s motion for default judgment under Rule 55(b) FRCP is GRANTED. Galan’s Chapter 7 discharge is, therefore, REVOKED, pursuant to 11 U.S.C. § 727(d)(2). The UST’s motion is rendered MOOT.3

I.

JURISDICTION

The Court has jurisdiction to hear the motions pursuant to 28 U.S.C. § 157 and 28 U.S.C. § 1334(b). The matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2).

II.

FACTS

Galan filed a voluntary petition for Chapter 7 relief on December 22, 2010 (ECF BK No. 1). On Schedule A, Galan listed the Potomac Property, valuing his interest at $28,400.00 (ECF BK No. 1, Schedule A). On Schedule D, Galan listed a secured claim on the Potomac Property in the amount of $41,550.31 (ECF BK No. 1, Schedule D). Galan’s § 341 Meeting of Creditors was held on May 11, 2011, (ECF BK No. 45), and on June 3, 2011, Galan received his Chapter 7 discharge (ECF BK No. 48). However, Galan’s bankruptcy case remains open because the Chapter 7 Trustee is administering assets and several adversary proceedings are pending resolution.

Following entry of Galan’s Chapter 7 discharge, the original Chapter 7 Trustee, C. Bruce Lawrence, filed a statement indicating his intention to abandon the Potomac Property, dated December 30, 2011 (ECF BK No. 103). On March 13, 2014, Mark Schlant was appointed as the successor Chapter 7 Trustee (ECF BK No. 193). Thereafter, the Chapter 7 Trustee discovered that between the date of the filing of Galan’s bankruptcy petition and the date of his discharge, the Potomac Property was damaged by a fire, resulting in a casualty insurance claim that Galan made with the insurer but failed to disclose to the Chapter 7 Trustee (ECF AP 14-02012 No. 1 at ¶¶ 13-14). The Chapter 7 Trustee also discovered that on December 7, 2011, three weeks prior to the filing of the original Trustee’s statement of his intent to abandon, Galan had transferred the Potomac Property to a third party in exchange for $5,000 — while his bankruptcy ease was pending (ECF AP 14-02012 No. 1 at ¶ 15; No. 6, Exhibit C). Galan did not notify the former Chapter 7 Trustee that a third party purchaser for the Potomac Property existed, and Galan did not seek Court approval of the sale of the Potomac Property (ECF AP 14-02012 No. 1 at ¶¶ 16-17).

The Chapter 7 Trustee filed a complaint commencing an adversary proceeding against Galan on August 29, 2014 (ECF [748]*748BK No. 242; ECF AP 14-02012, No. 1).

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

Related

U.S. Trustee v. Kupersmith
D. Connecticut, 2020
Steege v. Johnsson (In re Johnsson)
551 B.R. 384 (N.D. Illinois, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
522 B.R. 744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schlant-v-galan-in-re-galan-nywb-2014.