Simon v. Boccarsi (In re Boccarsi)

578 B.R. 800
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedDecember 14, 2017
DocketBankruptcy Case No. 16 B 29319; Adversary Case No. 17 A 00176
StatusPublished
Cited by2 cases

This text of 578 B.R. 800 (Simon v. Boccarsi (In re Boccarsi)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simon v. Boccarsi (In re Boccarsi), 578 B.R. 800 (Ill. 2017).

Opinion

MEMORANDUM OPINION

Janet S. Baer, United States Bankruptcy Judge

Mark Simon filed an adversary complaint against Constantino Joseph Boccarsi and Cari Ann Coglianese (the “Debtors”), seeking a determination that a judgment debt owed to him by the Debtors is not dischargeable pursuant to 11 U.S.C. §§ 523(a)(2)(A), (a)(4), and (a)(19).1 This matter is now before the Court on Simon’s motion for summary judgment on his securities fraud claim under § 523(a)(19).2 For the reasons set forth below, the Court finds that there are no genuine issues of material fact and that Simon is entitled to judgment as a matter of law on the securities fraud claim. As such, Simon’s motion will be granted, and judgment will be entered in his favor.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I).

BACKGROUND

The material facts in this case are undisputed. Those facts, gleaned from the docket, the pleadings, and the summary judgment statements and responses, as well as the exhibits attached thereto, are as follows.

On May 16, 2008, Simon filed a verified complaint against the Debtors and others in the Superior Court of the State of Arizona (the “state court”). (Defs.’ L.R. 7056-2 Resp. ¶ 2.) Among the other defendants named in the complaint were Allen J. White (“White”), an attorney for and officer of Simon’s Arizona-based mortgage company GD Financial Services of Arizona, Inc. (“GD Financial”); his wife Vicki White; and L.T. Fortune Capital, Inc. (“LTF”), an Illinois corporation of which Boccarsi is the principal shareholder.3 (Id at Ex. A1 ¶¶ 4, 6,11.)

According to the state court complaint, Boccarsi approached Simon in May 2006 at the offices of GD Financial regarding an investment opportunity in a “unique” stock trading program.4 (Id at Ex. A1 ¶ 10.) Specifically, Simon alleged that Boccarsi told him that the stock trading program had “never had a losing trading day,” that “no investor had ever lost any money” in the program, and that participation in the program “enabled investors to realize lucrative short-term profits.” (Id.) The state court complaint additionally alleged the following:

* White called Simon on three or four different occasions in May 2006 to encourage him to participate in the stock trading program.5 (Id. at ¶ 11.)
* White subsequently prepared an investor agreement (the “Investor Agreement”) for Simon to execute in order to take part in the program. (Id.) The Investor Agreement included various statements about invest ment advisory services, accredited investors, statutory exemptions from registration, and investment activity reports. (Id.) White assured Simon that he had drafted the Agreement to “protect everyone.” (Id. at ¶ 12.)
* Based on the statements made by Boccarsi and White, on May 22,2006, Simon transferred $100,000 to Boc-carsi so that Simon could participate in the stock trading program. (Id. at ¶ 13.)
* Shortly thereafter, Boccarsi told Simon that an additional $100,000 transfer was required under the Investor Agreement and reassured Simon of the program’s “inherent success.” 6 (Id. at ¶ 14.) Based on these representations, Simon transferred the additional $100,000 to Boccarsi.7 (Id.)
* Boccarsi was not an investment ad-visor, he did not invest Simon’s funds in the stock trading program as he told Simon he would, and, indeed, he did not have access to any such program as he represented he did. (Id. at ¶ 15.)
* Simon demanded the return of his money in February 2007.8 (Id. at ¶ 16.)
* In response, Boccarsi told Simon that, due to trading losses, there was only $37,000 remaining in Boccarsi’s foreign exchange ’ trading account from Simon’s initial investment. (Id.; Defs.’ L.R. 7056-2(A)(2)(b) Additional Facts ¶ 12.)
* Boccarsi ultimately returned $34,000 to Simon in mid-2007.9 (Defs.’ L.R, 7056-2 Resp. at Ex. A1 ¶ 16.)

Based on the allegations in the state court complaint, Simon sought damages against Boccarsi in five counts: (1) securities fraud and violation of § 44-1991 of the Arizona Revised Statutes (fraud in purchase or sale of securities), Ariz. Rev. Stat. § 44-1991; (2) fraud; (3) negligent misrepresentation; (4) violation of § 44-1841 of the Arizona Revised Statutes (sale of unregistered securities prohibited), Ariz. Rev. Stat. § 44-1841; and (5) violation of § 44-1842 of the Arizona Revised Statutes (transactions by unregistered dealers and salesmen prohibited), Ariz. Rev. Stat. § 44-1842.10 (Defs.’ L.R. 7056-2 Resp. ¶5 & Ex. A1 ¶¶ 17-55.)

On September 25, 2008, the state court dismissed Counts 4 and 5 of the complaint. (Id. at ¶ 6; Pl.’s L.R. 7056-1 Stmt, at Ex. D.) According to the court’s “minute entry” on that date, those counts were dismissed by agreement of the parties because they were barred by “an applicable statute of limitations.” (Pl.’s L.R. 7056-1 Stmt, at Ex. D.)

About eight months later, on May 15, 2009, counsel for the Debtors and LTF filed a motion to withdraw as attorneys of record because the Debtors and LTF had allegedly failed “to meet their obligations” to the law firm. (Defs.’ L.R. 7056-2 Resp. at Ex. A5.) The attorneys certified in their motion that the Debtors and LTF had been notified of the status of the case, including the dates and times of any court hearings, the need to comply with court orders, and the possibility of sanctions for non-compliance. (Id.) The attorneys also stated that the Debtors and LTF had been informed that it was “incumbent upon them to retain other counsel or to represent themselves” in a pro se capacity in connection with any further proceedings. (Id.) The state court subsequently granted counsel’s motion to withdraw. (Id. at Exs. A2 & A5.)

On May 28, 2010, White and his wife (together, the “Whites”) filed a motion for summary judgment in the state court case. (Defs.’ Resp. at 3; see also Defs.’ L.R. 7056-2 Resp. at Ex. A2.) According to the Debtors, the state court judge ordered that they attend the hearing. (Defs,’ Resp. at 3.) When they failed to do so, the state court struck the answer that they had previously filed.

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Cite This Page — Counsel Stack

Bluebook (online)
578 B.R. 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-boccarsi-in-re-boccarsi-ilnb-2017.