“[T]he drafters [of the Bankruptcy Code] did not intend for bad faith to be “cause” for dismissal in subsection (a) [of Section 707 of the bankruptcy Code], which applies to all Chapter 7 cases. For these reasons, I follow those courts that hold that bad faith is not “cause” within the meaning of § 707(a) [of the Bankruptcy Code]. Second[ly], if bad faith constituted cause for dismissal under § 707(a) [of the Bankruptcy Code], I would hold that, on the facts alleged, the Debtor’s filing of a Chapter 7 petition to gain the benefits of the exemption provisions in the bankruptcy code is not bad faith. . . . The ability of the debtor to claim property as exempt is also subject to restrictions. . . . These are finally calibrated, limiting relief but not taking it all away. They evince a purpose, even in the face of serious fraudulent and criminal acts and even a determination that the filing of the case was an abuse of the provisions of the bankruptcy code to permit a minimum of $160,375 and exemptible value, and more to the extent that such additional value is deemed reasonably necessary to the support of the debtor and any dependent of the debtor. By taking the exemptions available to him-without objection by any party in interest-the Debtor is simply taking advantage of the benefit that the enactors of the Bankruptcy Code knowingly chose to make available to debtors, even in the face of prepetition fraudulent and felonious conduct. As the debtor’s counsel appropriately argued, quoting from In re Miller, ‘[t]he Debtor can hardly be faulted for having done what the law permits them to do.’ The point here is . . . that, judging from the purposes evident in the structure of the Bankruptcy Code, it was neither an abuse of the Code, nor at faith, for the debtor to have filed this case in order to avail himself of the homestead exemption as enhanced by the provisions of § 522(c) [of the Bankruptcy Code]. This is a protection that the law made available to him, and there is no bad faith in his taking advantage of it for the benefit of himself and his wife.”
“On January 17, 2019, the Court conducted a hearing on the motion for sanctions and the supplemental motion for sanctions, at which time the Court issued an Order treating the supplemental motion for sanctions as superseding the previously-filed motion for sanctions. During the course of oral argument, {Bank’s] counsel acknowledged that no witness list was provided to debtor’s counsel in response to the debtor’s discovery requests and that it did not provide the names or contact information regarding persons at Flagstar involved with reviewing and approving the 2013 loan modification or the debtor’s post-petition loan modification applications. [Bank’s] counsel indicated that [the Bank] had sent directly to debtor’s counsel (and not via its own counsel) [Bank’s] discovery responses on December 18, 2018, by both overnight mail and by electronic mail. Debtor’s counsel denied that he had ever received any of Flagstar’s discovery responses by means of electronic mail and was prepared to testify as to same under oath if so requested. [Bank’s] counsel further acknowledged that the form of [Bank’s] discovery responses was not in compliance with the provisions of Fed. R. Civ. P. 33(b)(3) and (5), made applicable hereto by Fed. R. Bankr. P. 7033, as they were not signed under oath and the objections were not subscribed to by [Bank’s] counsel. What’s more, at the January 17, 2019 hearing, [Bank’s] counsel acknowledged that [the Bank] was the “owner” of this loan and that while the mortgage loan held by it was “insured” by the U.S. Department of Housing and Urban Development, there was no third-party “investor/owner” of the loan. This shocking position was reiterated repeatedly in [Bank’s] responses to the debtor’s discovery requests and directly contradicted the reason [the Bank] gave the debtor for denying her permanent modification.
This case presents the highly unusual circumstance in which a debtor has been approved for a mortgage loan modification on a trial basis and has faithfully complied with the requirements of that modification by making the required trial payments, only to have the mortgage lender, here [the Bank], ultimately refuse to offer a permanent loan modification. The basis for the repudiation was set forth in a July 1, 2013 letter from [the Bank] to the debtor, cryptically stating as the basis for denial that the debtor was not approved for loss mitigation by ‘the investor/owner of the loan.’
One of the common threads running through these consolidated contested matters and the discovery requests was the debtor’s efforts to understand why, how and by whom her previously approved and fully performed trial period payment plan had been rejected when it came time for a permanent loan modification as well as why she had not been approved by [the Bank] for a post-petition loan modification. {The Bank] has repeatedly and without justification failed and refused to supply the debtor with that basic information. I find that [the Bank’s] discovery responses were not submitted to the debtor through her counsel in a timely fashion as required under Fed. R. Civ. P. 33(b)(2), despite [the Bank] being granted two separate extensions of time within which to respond, nor did the discovery responses comply with Fed. R. Civ. P. 33(b)(5), as they were not signed under oath and not signed by [Bank’s] counsel. The failure of [the Bank], in the first instance, to respond at all to the debtor’s discovery requests in a timely fashion, and then, after having been served the motion for sanctions, to respond to the discovery requests late and in an incomplete and internally contradictory manner that does not comply with the requirements of the Federal Rules of Civil Procedure, I find to be a flagrant violation of this Court’s discovery orders and a contempt of court. [The Bank] and its counsel were well aware of the requirements to comply with the discovery deadline set forth in the pre-trial order and subsequent orders extending the deadline and chose to ignore them.”
Successfully reversed on appeal bankruptcy court decision limiting the Debtor’s claim of exemption under Massachusetts Homestead Statute, Mass. Gen. Laws Ch. 188, § 1, et seq., based upon erroneous application of law to facts of the case.
Successfully obtained $62,000 judgment of non-dischargeability after six (6) day trial based upon Debtor’s embezzlement of funds from plaintiff under 11 U.S.C. § 523(a)(4).
Successfully disgorged $5,700 from predecessor counsel under 11 U.S.C. § 329(a) and (b) based on knowing and intentional failure to disclose additional compensation received by him from debtor and debtor’s mother; Predecessor counsel was ultimately disbarred by the Massachusetts Board of Bar Overseers.
Successfully objected to Debtor’s claims of exemption and exclusion under §§ 541(a)(6) and 541(c)(2) with respect to employee stock options, garnering more than $80,000 for the estate.
Successfully defended Chapter 7 Debtor from Creditor’s Motion to Dismiss Chapter 7 Case under 11 U.S.C. § 707(a) based upon alleged “bad faith”, so as to permit the creditors to circumvent the effect of 11 U.S.C. § 522(c) regarding Debtor’s claim of Homestead Exemption after Debtor waived his discharge of debts
Successfully defended creditor’s attempt to dismiss Chapter 7 case under 11 U.S.C. § 707(a) for supposed lack of “good faith” as “cause” therefor, so as to preclude Debtor from avoiding judicial lien of the same creditor based upon holding in case of In re Reinhold; Creditor’s Motion to Dismiss denied and Debtor’s Motion to Avoid…
Successfully prevented landlord from terminating commercial lease with Client yoga studio and negotiated settlement with landlord as part of comprehensive Chapter 11 Plan of Reorganization and completed same in less than twelve (12) months from commencement to conclusion.