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Summary Judgment in Adversary Case

BK Ct. ND IL EDAmerican Eagle vs. Friedman, 13-AP-01199

Bankruptcy Court, N.D. Ill., Eastern Div.  Opinion: December 29, 2015.

JACK B. SCHMETTERER, Bankruptcy Judge.

This case resulted in a Summary Judgment finding despite the assertion by the Debtor-Defendant of his 5th Amendment right to be free from self-incrimination.

Specifically, this Adversary Case arose from the Chapter 7 Bankruptcy filed by Arthur Friedman (“Debtor”). Creditor-Plaintiff, American Eagle Bank (the “Plaintiff) filed a 3-count Complaint to determine the dischargeability of debt as follows:

Count I  –  per 11 U.S.C. § 523(a)(2)(A)
Count II –  per 11 U.S.C. § 523(a)(6)
Count III-  per 11 U.S.C. §§ 727(a)(3) and (a)(5)
Count IV- per  11 U.S.C. §§ 727(a)(2), (4),(5) and (7)

Count IV was added in the Amended Complaint. The Debtor answered both the Complaint and the Amended Complaint.

On August 4, 2015 the Plaintiff served Requests for Admission pursuant to Fed.R.Bankr.P.7036. The Debtor never responded, and the Plaintiff brought a Motion for Summary Judgment as to Count IV, alleging that the unanswered Requests were deemed admitted under Fed.R.Civ.P.36(a)(3). The Court agreed, and Summary Judgment was granted on Count IV.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is proper in the Bankruptcy Court per 28 U.S.C. §1334, and this is a “core proceeding” under 28 U.S.C. §§157(b)(2)(A), (I), and (O) since it seeks to determine the dischargeability of a debt. Therefore, it “stems from the bankruptcy itself” and may be decided by a Bankruptcy Court (See: Stern v. Marshall, 131 S.Ct. 2594, 2618 (2011)).

II. UNCONTESTED FACTS

The Plaintiff filed a Statement of Material Facts as required by Local Rules, but the Debtor failed to file an opposing statement; thus “[a]ll material facts in [Plaintiff’s] statement…[were] deemed admitted.” Accordingly, the following was taken from the Plaintiff’s Statement of Material Facts, Debtor’s Answers, and the Requests for Admission:

Debtor was a principal and the president of Prestige Leasing (“Prestige”). Before filing, the Debtor was party to a lawsuit that was settled in his favor. As a result, the Debtor received $75,000 annually, minus attorneys’ fees.  Payments were made to Prestige until it was closed in 2011. After that time, payments were made to the Debtor. In his Answers the Debtor admitted as much, and that payments were received within a year of filing bankruptcy.

Moreover since the Debtor did not respond to the Requests for Admission within the 30-day time limit prescribed by the rules, the resulting admission could be deemed a violation of his Fifth Amendment right not to incriminate himself. Therefore, the Court’s inquiry began with a discussion of the Debtor’s Fifth Amendment rights.

III. FIFTH AMENDMENT

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const. amend. V. This privilege guarantees an individual’s right “to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for his silence.” Schmerber v. California, 384 U.S. 757, 760-61, 86 S.Ct. 1826, 1830-31, 16 L.Ed.2d 908 (1966).

The privilege may be “asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory;it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The privilege not only extends to answers that would in themselves support a conviction but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute a claimant for a crime. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). “This provision of the Amendment must be accorded liberal construction in favor of the right it was intended to secure.” Id. at 486.

In evaluating the Debtor’s assertion of the Fifth Amendment privilege against self-incrimination, the Court first looks to whether the Debtor has properly asserted the privilege, and, if so, then whether he waived the privilege through prior statements.

In short, both because the Debtor has failed properly to assert his Fifth Amendment privilege and because he waived it, he is unable to rely on the privilege in his response to the Motion to Summary Judgment. Moreover, because the Debtor cannot rely on the Fifth Amendment privilege here, the Court will treat the Plaintiff’s Requests for Admission as admitted under the default rule found in Fed. R. Civ. P. 36(a)(3).

IV. SUMMARY JUDGMENT

A motion for summary judgment is granted if the movant can demonstrate no genuine dispute as to any material fact. F.R.B.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether a genuine issue of material fact exists the Court must construe all facts in the light most favorable to the non-moving party. Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). Here, the Court ruled that there was no genuine issue of material fact.

V. CONCLUSION

The Court held that the Plaintiff showed that there was no genuine issue of material fact as to Count IV. Accordingly, Summary Judgment was granted on that Count alone.

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