Tobkin v. Florida Bar

509 B.R. 731, 2014 WL 105375, 2014 U.S. Dist. LEXIS 3021
CourtDistrict Court, S.D. Florida
DecidedJanuary 10, 2014
DocketNo. 13-20992-CIV
StatusPublished
Cited by2 cases

This text of 509 B.R. 731 (Tobkin v. Florida Bar) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tobkin v. Florida Bar, 509 B.R. 731, 2014 WL 105375, 2014 U.S. Dist. LEXIS 3021 (S.D. Fla. 2014).

Opinion

OPINION AND ORDER

KENNETH A. MARRA, District Judge.

Donald Alan Tobkin (“Tobkin”), a Chapter 7 debtor, appeals the Bankruptcy Court’s Memorandum Opinion Denying [732]*732the Debtor’s Motion to Dismiss and Granting The Florida Bar’s Motion for Summary Judgment (“Opinion”) [DE 1; Adv. Pro. No. 12-01415, ECF No. 42]. The Court has carefully considered the briefs and supplemental filings of the parties, the entire record on appeal, and is otherwise fully advised in the premises.

I. Background

On March 10, 2010, the Florida Supreme Court entered a judgment in favor of The Florida Bar (“Florida Bar”) against Tob-kin, disbarring Tobkin from the practice of law in the State of Florida for a period of five years (the “Disbarment Judgment”). As part of the disbarment, the Supreme Court of Florida imposed a sanction against Tobkin that required him to pay restitution for the benefit of his former client in the amount of $20,602.04. Additionally, pursuant to its discretionary authority under Rules Regulating the Florida Bar 3-76(q)(2), the Supreme Court of Florida imposed a judgment against Tob-kin in favor of the Florida Bar in the amount of $12,217.39 (the “Cost Judgment”).

On September 1, 2011, Tobkin filed a voluntary bankruptcy petition under Chapter 13 in the Bankruptcy Court for the Southern District of Florida. In re Donald Alan Tobkin, Case No. 11-34669-LMI. Tobkin listed the Florida Bar on Schedule D as a secured creditor, but failed to list the Florida Bar on the “Creditor Matrix.” Opinion at 2. Thus, the Florida Bar did not receive notice of the bankruptcy petition until after the claims bar date. On February 23, 2012, the case was converted from Chapter 13 to Chapter 7. Id.

On January 3, 2012, Tobkin filed an adversary complaint seeking to (1) disallow the Florida Bar’s yet-to-be filed claim, (2) strike any yet-to-be filed objection of the Florida Bar to Tobkin’s Chapter 13 Plan, (3) determine the validity, priority and extent of the Florid Bar’s yet-to-be filed claim, and (4) invalidate and void the Disbarment Judgment. Opinion at 3. Tobkin v. The Florida Bar, Adv. Pro. No. 12-01003 (Bankr.S.D.Fla.) (“Initial Adversary Proceeding”). The Florida Bar moved to dismiss the Initial Adversary Proceeding, which motion was granted. Adv. Pro. No. 12-01003, ECF No. 17. Id.

On May 22, 2012, the Florida Bar filed an adversary proceeding against Tobkin, The Florida Bar v. Tobkin, Adv. Pro. No. 12-01415 (Bankr.S.D.Fla.) (“Dischargeability Action”), seeking a determination that the Cost Judgment against Tobkin is non-dischargeable under 11 U.S.C. § 523(a)(7) [Adv. Pro. No. 12-01415, ECF No. 1], On July 9, 2012, Tobkin filed a Motion to Dismiss the Adversary Proceeding (“Motion to Dismiss”) [Adv. Pro. No. 12-01415, ECF No. 11]. Shortly thereafter, on July 18, 2012, the Florida Bar filed its Motion for Summary Judgment (“Motion for Summary Judgment”) [Adv. Pro. No. 12-01415, ECF No. 17],

Prior to the hearing on both the Motion to Dismiss and the Motion for Summary Judgment in the Dischargeability Action, Tobkin served the Florida Bar with several sets of requests for admission. The Florida Bar served answers to Tobkin’s First Set of Requests for Admission, but sought a protective order regarding the remaining requests arguing they would not lead to information pertaining to the dis-chargeability of the Cost Judgment. See Adv. Pro. No. 12-01415, ECF No. 27. In the days after the Florida Bar’s Motion for Protective Order, Tobkin filed a Motion to Compel Better Responses from the Florida Bar. On October 15, 2012, the Bankruptcy Court entered an Order Granting the Florida Bar’s Motion for Protective Order and a separate Order Denying Appellant’s Motion to Compel. [Adv. Pro. No. 12-01415, ECF No. 36, 37]. Tobkin [733]*733did not attempt to file an interlocutory appeal of either order but argues now that the Bankruptcy Court erred in denying his Motion to Compel.

On October 9, 2012, the Bankruptcy Court conducted a hearing on the Motion to Dismiss and Motion for Summary Judgment. On November 26, 2012, the Bankruptcy Court issued its Opinion [Adv. Pro. No. 12-01415, ECF No. 42], which determined the Cost Judgment to be non-dis-chargeable under Section 523(a)(7). On December 10, 2012, Tobkin filed a Motion for Relief from Judgment or Order (“Motion for Relief’) [Adv. Pro. No. 12-01415, ECF No. 47], which the Bankruptcy Court denied on January 17, 2013 (“Reconsideration Order”) [Adv. Pro. No. 12-01415, ECF No. 59]. Tobkin brought the instant appeal seeking review of the Opinion and the Reconsideration Order.

II. Legal Standard

An appellate court reviews de novo a bankruptcy court’s grant of summary judgment, applying the same legal standard used by the bankruptcy court. See In re Delco Oil, Inc., 599 F.3d 1255, 1257-58 (11th Cir.2010); Fed. R. Bankr.P. 7056 (making Fed.R.Civ.P. 56’s summary judgment standard applicable in bankruptcy adversary proceedings). Summary judgment is proper if the pleadings, discovery, any affidavits and disclosure materials on file show “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

III. Discussion

Dischargeability of the Debt

Under 11 U.S.C. § 523(a), certain debts are excepted from discharge in bankruptcy proceedings, including any debt “for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, [which] is not compensation for actual pecuniary loss,” id. § 523(a)(7). Section 523(a)(7) applies both to civil and criminal penalties. See In re Feingold, 730 F.3d 1268, 1276 (11th Cir.2013) citing U.S. Dep’t of Hous. & Urban Dev. v. Cost Control Mktg. & Sales Mgmt. of Va., Inc., 64 F.3d 920, 927-28 (4th Cir.1995). Here, Tobkin argues the Bankruptcy Court erred in granting summary judgment because the Florida Bar “fatally failed to allege [it is] a ‘government’ creditor and could never prove [it is] a government entity.” DE 9 at 20 of 31. Therefore, the issue on appeal is whether the Cost Judgment the Florida Bar seeks to collect from Tobkin is a fine or penalty payable to and for the benefit of a governmental unit.

Governmental Unit

On appeal, Tobkin contends that the Florida Bar is not any type of government entity. DE 9 at 26 of 31. He bases this argument on the fact that the Florida Bar, in response to a request for admission, admitted that it is not a “government entity,” as well as the Florida Bar’s exclusion from the Bankruptcy Code’s definition of a “governmental unit” under 11 U.S.C. § 101(27).

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Cite This Page — Counsel Stack

Bluebook (online)
509 B.R. 731, 2014 WL 105375, 2014 U.S. Dist. LEXIS 3021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tobkin-v-florida-bar-flsd-2014.