Opinion
Case No. 13-11395 Adv. No. 13-01068
03-28-2014
In re: ROBERT WHITAKER and ELAYNE G. MEDINA-WHITAKER Debtor. STANLEY Z. PEPLINKSKI. Plaintiff, v. ROBERT WHITAKER and ELAYNE G. MEDINA-WHITAKER Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the Motion to Amend Complaint ("Motion to Amend") and the Proposed Amended Complaint Objecting to Bankruptcy Filing and Discharge (the "Proposed Amended Complaint") filed by Plaintiff Stanley Peplinski, pro se. See Docket Nos. 12 and 20. The Plaintiff seeks to amend his complaint to include additional allegations detailing the misdeeds of Defendants Robert Whitaker and Elayne Medina-Whitaker. In his Complaint and Proposed Amended Complaint, the Plaintiff appears to seek a determination that certain debts are non-dischargeable under 11 U.S.C. §§ 523(a)(2)(A) and (a)(4) and that the Defendants' discharge should be denied under 11 U.S.C. § 727. After consideration of the Motion to Amend and the Proposed Amended Complaint, and being otherwise sufficiently informed, the Court finds that the Motion to Amend should be granted, in part, and denied, in part, as described below.
BACKGROUND
The Defendants filed a voluntary petition under Chapter 7 of the Bankruptcy Code on April 23, 2013. Shortly thereafter, the Plaintiff commenced an adversary proceeding against them objecting to discharge and to the dischargeability of certain debts. In the Complaint and the Proposed Amended Complaint, Plaintiff alleges that the Defendants leased residential property from him but failed to pay rent. He alleges that after evicting the Defendants, he obtained a judgment from the state court in the amount of $8,402 for past-due rent. The Court discerns that the Plaintiff seeks to have that amount declared non-dischargeable under 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(4). The Plaintiff also seems to contend that the Defendants' discharge should be denied under 11 U.S.C. § 727.
The Defendants filed an answer to the Complaint on July 26, 2013. At a scheduling conference held in September 2013, the Plaintiff expressed his desire to amend his complaint. The Court set a deadline for him to file a motion to amend the complaint with the proposed amended complaint attached. The Plaintiff filed the motion but failed to attach the proposed amended complaint. At a later hearing, the Plaintiff indicated he had difficulties attaching the proposed amended complaint because it was over a hundred pages long. After explaining the concept of notice pleading to the Plaintiff, the Court gave him an additional opportunity to file a proposed amended complaint but limited it to 30 pages. The Plaintiff filed the Proposed Amended Complaint, which was 31 pages single spaced, and then separately filed several hundred pages of exhibits. The exhibits contained a large variety of personal information belonging to the Defendants, including their social security numbers, copies of their tax returns, and copies of their medical records, all of which the Court sealed.
LAW REGARDING PLEADING STANDARDS AND AMENDMENTS
Fed.R.Civ.P. 15(a), made applicable to adversary proceedings by Fed.R.Bankr.P. 7015, provides liberal standards for amending a pleading before trial. U.S. v. Escamillo, 2006 WL 1401634, * 2 (10th Cir. 2006). "[B]efore a responsive pleading is filed, a party may amend a pleading at any time without leave of court, and after a responsive pleading is filed leave to amend 'shall be freely given when justice so requires.'" Id. (quoting Rule 15(a)). Courts may deny a request to amend "for reasons such as 'undue delay, bad faith ..., repeated failure to cure deficiencies ..., undue prejudice to the opposing party..., [and] futility of the amendment.'" Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).
An amendment would be futile when the proposed new complaint fails to state a claim upon which relief could be granted. Tenison v. Morgan, 2013 WL 323227, *2 (10th Cir. 2013) (noting that an "amendment[] would be futile ...[where] the complaint, even if amended as proposed, would still fail to state a claim"). See also Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012) (same). Therefore, a court need not grant leave to amend if "the amendment would not cure the deficiency" under Fed.R.Civ.P. 12(b)(6), made applicable to adversary proceedings by Fed.R.Bankr.P. 7012. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
In evaluating whether a pleading states a claim under 12(b)(6), the Court accepts as true all well pleaded facts and evaluates those facts in the light most favorable to the plaintiff. See Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1178 (10th Cir. 2012). To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain enough facts to state a cause of action that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The Court should look "to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). To withstand dismissal, the plaintiff must sufficiently allege all facts necessary to support the required elements under the legal theory proposed. Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
A proposed amendment must also comply with the pleading requirements set forth in Fed.R.Civ.P. 8, which requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2), made applicable to adversary proceedings by Fed.R.Bankr.P. 7008. When a pleading contains information unrelated to the claim, the Court has the power, on its own initiative or in response to a motion by the defendant, to strike any portions containing "redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f), made applicable to adversary proceedings by Fed.R.Bankr.P. 7012. See also Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (suggesting that a court has discretion to strike redundant or scandalous matter from a prospective amended complaint). The purpose of Rule 12(f) "is to save the time and money that would be spent litigating issues that will not affect the outcome of the case." United States v. Smuggler-Durant Mining Corp., 823 F.Supp. 873, 875 (D.Colo.1993); Tyco Electronics Corp. v. Milwaukee Elec. Tool Corp., 2012 WL 1205700, *11 (M.D. Pa. 2012) (same).
"Immaterial" allegations are generally defined as "hav[ing] no bearing on the subject matter of the litigation." Johnson v. The County of Macomb, 2008 WL 2064968, *1 (E.D.Mich. 2008). See also Dean v. Gillette, 2004 WL 3202867, *1 (D.Kan. 2004) ("Immaterial matter is defined as that which has no essential or important relationship to the claim for relief, or a statement of unnecessary particulars in connection with that which is material."). "Impertinent allegations have been defined as statements that do not pertain or are not necessary to the issues in question." New Day Farms, LLC v. Board of Trustees of York Tp., Ohio, 2009 WL 1652126, *3 (S.D. Ohio 2009) (citing 5C Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1380). "Scandalous" allegations "cast a cruelly derogatory light on a party or other person" or "unnecessarily reflect[] on the moral character of an individual." Glaser v. Jordan, 2010 WL 1268151, at *2 (D.Colo. Mar. 30, 2010); Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C.2003) (citing 2 Moore's Federal Practice § 12.37[3] at 12-97). See also Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) ("[I]f the complaint or other pleadings are abusive or contain offensive language, they may be stricken sua sponte under the inherent powers of the court.") (internal quotations omitted).
In applying the aforementioned rules, courts should construe a pro se litigant's pleadings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Allowances will be made, for example, "for the pro se plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (internal quotations omitted). Notwithstanding these allowances, the Tenth Circuit "has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants." Id.
DISCUSSION
The Plaintiff seeks to amend his complaint to include additional allegations against the Defendants. According to the Plaintiff, the Defendants: (1) fraudulently induced the Plaintiff to allow them to live in his rental property for a substantial period of time without paying rent; (2) wrote a series of bad rent checks; (3) misappropriated funds earmarked for paying rent; and (4) lied on their bankruptcy petition and schedules. Consequently, the Plaintiff contends that the Defendants are not entitled to bankruptcy relief.
Based on these allegations, the Court discerns that the Plaintiff intends to object to the dischargeability of certain debts under 11 U.S.C. §§ 523(a)(2)(A) (fraud) and 523(a)(4) (embezzlement and larceny). Section 523(a)(2)(A) excepts from discharge any debts arising from fraud. To prevail on a non-dischargeability claim under that section, a plaintiff must demonstrate that: "1) the debtor made a false representation [or in the case of a false pretence, an implied misrepresentation that is meat to create and foster a false impression]; 2) ... with the intent to deceive the creditor; 3) the creditor relied on the false representation [or implied misrepresentation]; 4) the creditor's reliance was justified; and 5) the creditor was damaged as a result." In re Larranaga, 2011 WL 1344562 at *2 (Bankr.D.N.M. 2011) (citing Fowler Bros v. Young (In re Young), 91 F.3d 1367, 1373 (10th Cir.1996)).
In attempting to discern the Plaintiff s intent, the Court is not limiting him to claims under those subsections. If the Plaintiff believes the surviving allegations in the Proposed Amended Complaint support a nondischargeability claim under other subsections of 11 U.S.C. § 523(a), he may ask that those claims be added to the pre-trial order.
Section 523(a)(4) excepts from discharge debts arising from fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. Embezzlement consists of "the fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come." Klemens v. Wallace (In re Wallace), 840 F.2d 762, 765 (10th Cir.1988). Larceny is defined as "the fraudulent and wrongful taking and carrying away of the property of another with intent to convert the property to the taker's use without the consent of the owner." Hernandez v. Musgrave (In re Musgrave), 2011 WL 312883, *5 (10th Cir. BAP 2011) (quoting 4 Collier on Bankruptcy ¶ 523.10[2], 523-77 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.2009)).
To have standing to object to the dischargeability of a debt under Sections 523(a)(2)(A) or (a)(4), the movant must be the party who actually suffered the injury. See 11 U.S.C. § 523(c)(1) (noting that "the debtor shall be discharged from a debt of a kind specified in paragraph (2), (4), or (6) of subsection (a) of this section, unless, on request of the creditor to whom such debt is owed, ... the court determines such debt to be excepted from discharge) (emphasis added). A movant may not "bring a § 523(a) claim on behalf of third parties." In re Boydstun, 2013 WL 5134324, *5 (Bankr.D.N.M. 2013) (J. Thuma) (citing In re Olson, 454 B.R. 466, 478 (Bankr.W.D.Mo.2011)).
See also Corso v. Walker, 449 B.R. 838, 848-849 (W.D.Pa. 2011) ("[A] creditor's standing to invoke § 523(a)(2)(A) is limited to fraud claims stemming from its own transfers to the debtor and is therefore precluded from seeking exceptions to the discharge of debts based on fraudulent activity allegedly committed by the debtor against third parties."); In re Spivey, 440 B.R. 539, 546 (Bankr.W.D.Ark. 2010) (dismissing a claim under Section 523(a)(4) where the alleged embezzlement caused no direct injury to the plaintiffs).
The Plaintiff also appears to object to the Defendants receiving a discharge under 11 U.S.C. § 727(a)(4). An objection to discharge under Section 727(a)(4) requires the creditor to prove: "(1) that the debtor made a false statement under oath; (2) that the debtor knew the statement was false; (3) that she made the statement with fraudulent intent; and (4) that the statement was material." In re Majors, 2005 WL 2077497, at *3 (10th Cir. BAP 2005). See also In re Brown, 108 F.3d 1290, 1294 (10th Cir.1997) (creditor must demonstrate by a preponderance of the evidence that the debtor knowingly and fraudulently made an oath that relates to a material fact).
As the Court previously explained in the context of Section 523(a), the Plaintiff is not limited to Section 727(a)(4) if his surviving allegations support a claim under other subsections of 11 U.S.C. § 727.
Many of the allegations in the Proposed Amended Complaint are unrelated to the Plaintiff's claims under Sections 523 or 727. The Plaintiff will therefore not be permitted to amend his complaint to include such allegations. Instead of identifying, line by line, which allegations are futile, immaterial, impertinent, or scandalous, the Court will discuss certain categories of allegations which he will not be allowed to assert. A copy of the Proposed Amended Complaint designating the deleted portions will be attached as an exhibit to this Memorandum Opinion and Order.
I. Immaterial, Impertinent, or Futile Allegations
The majority of the allegations the Court elected to strike contain legal arguments. While it is appropriate to state the legal theory upon which the factual allegations are predicated and the code section under which a claim is made, a complaint should not include legal arguments or a discussion of case law. See Womack v. Ocwen Loan Servicing, LLC, 2013 WL 5661128, *1 (D.Colo. 2013) (noting that "legal arguments...are not appropriately included in a complaint); Lyshorn v. J.P. Morgan Chase Bank, 2013 WL 792632, *2 (N.D.Cal. 2013) (dismissing complaint because it was "excessively long and include[d] irrelevant factual allegations ... as well as improper legal argument). As discussed above, a complaint need only include "a short and plain statement of facts showing entitlement to relief." Brainard v. BAC Home Loans Servicing, LP, 2012 WL 5992181, *1 (10th Cir. 2012) (internal quotations omitted).
Another category of immaterial allegations relate to whether the Defendants filed their petition in bad faith, whether granting bankruptcy relief would constitute an abuse of Title 11, or whether their petition was otherwise defective. For example, Counts 1, 3, 15, and 19 relate to whether the Debtors: (1) signed their petition; (2) qualify for Chapter 7 under the means test; (3) should have filed jointly; and (4) should be permitted to file bankruptcy. Such allegations speak to dismissal of the Defendants' bankruptcy case and are not relevant to discharge or dischargeability. See generally 11 U.S.C. § 707(b); In re Stewart, 175 F.3d 796, 808 (10th Cir. 1999) (considering issues such as bad faith and abuse on a motion to dismiss under Section 707(b)). A creditor seeking dismissal must file a motion in the main bankruptcy case, not a complaint. See Fed.R.Bankr.P. 1017(e) (The court may dismiss ... an individual debtor's case for abuse under § 707(b) only on motion and after a hearing....) (emphasis added). The Court will therefore strike any allegations or counts seeking dismissal under Section 707(b).
The Court is not suggesting that the Plaintiff file a motion to dismiss, nor is it making any determination as to whether he would prevail on such a motion.
Many of the allegations also relate to claims that the Plaintiff has no standing to pursue. For example, Counts 12 through 14 relate to whether debts for taxes, student loans, or medical bills are dischargeable. Other portions of the Proposed Amended Complaint allege that Mrs. Medina-Whitaker embezzled from or committed various frauds upon individuals other than the Plaintiff. As the Court discussed above, the Plaintiff only has standing to contest the dischargeability of debts owed to him. Such amendments are futile and will therefore not be permitted.
Except as described below, the remaining allegations the Court intends to strike contain unnecessary particulars or are immaterial to the Plaintiff's claims. For example, the Plaintiff accuses the Defendants of violating various laws that are unrelated to the judgment for past-due rent. He provides details about whether, and to what extent, the Defendants receive food stamps or other social services. None of these allegations are relevant to the matter at hand (i.e. whether the judgment for past due rent is dischargeable under Section 523 and whether the Defendants' discharge should be denied under Section 727).
II. Scandalous or Harrassing Allegations
A number of the allegations present scandalous facts which serve no purpose other than to embarrass or harass the Defendants. For example, the Plaintiff questions the nature of the Defendants' romantic relationship, includes details about how often they purchase gifts for one another, and provides information about where the Defendants' daughter attended high school. He also alludes to a relationship Mrs. Medina-Whitaker had with another man and alleges that she and her husband act more like single people than a married couple. As the Tenth Circuit aptly observed, "[s]uch writings are intolerable, and [the Court] will not tolerate them." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (using Rule 12(f) to strike briefs that "do little more than attempt to impugn ... integrity"). The Court will therefore strike all scandalous allegations which are irrelevant to the Plaintiff's claims under Sections 523 and 727.
III. Exhibits
The Plaintiff included over a hundred pages of exhibits along with the Proposed Amended Complaint. The exhibits include photographs of: (1) the Defendants' dogs; (2) the contents of the Mrs. Medina-Whitaker's jewelry boxes; (3) the inside of the Defendants' restroom; and (4) the contents of the Defendants' closets. They also included unredacted copies of the Defendants' tax returns, cell phone bills, retirement account statements, personnel files, credit card statements, and medical records, and a copy of Mr. Whitaker's college diploma along with his father's obituary. The Plaintiff contends that he obtained these documents by digging through the Defendants' trash.
It is possible that some of these exhibits may be relevant to the Plaintiff's claims. However, a complaint need not "include specific evidence [or] factual allegations in addition to those required by Rule 8." Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2nd Cir.2010). See also E.E.O.C. v. Peoplemark, Inc., 732 F.3d 584, 619 (6th Cir. 2013) (noting that a complaint "need not include evidence") (internal quotations omitted). To the extent the exhibits contain any information relevant to the Plaintiff's claims, such information is in the category of unnecessary particulars. The Court will therefore strike the exhibits in their entirety. In answering the Proposed Amended Complaint, the Defendants will not be required to respond to allegations regarding the contents of any of the exhibits. If the Plaintiff would like to reoffer the exhibits at an appropriate time (for example, in connection with a dispositive motion or at trial), he may do so, subject to the rules of evidence and any order by the Court governing the exchange and presentation of exhibits.
WHEREFORE, IT IS HEREBY ORDERED that the Motion to Amend will be granted, in part, and denied, in part, as follows:
1. The Proposed Amended Complaint attached to this Memorandum Opinion and Order - which reflects the surviving allegations not stricken by the Court - will be filed of record by the Clerk's Office.
2. The Court will only consider the surviving allegations in that document and will not consider any allegations it has stricken.
3. In allowing the Plaintiff to assert the surviving allegations, the Court is making no determination as to their validity and/or whether they adequately state a claim under 11 U.S.C. §§ 523(a) or 727.
4. All exhibits filed in connection with the Proposed Amended Complaint (Docket Nos. 21-43) are stricken. Such exhibits will not considered by the Court unless and until they are re-proffered and admitted in evidence.
ORDERED FURTHER that the deadline for the Defendants to file an answer to the Amended Complaint, as modified by the Court, is April 30, 2014.
__________
ROBERT H. JACOBVITZ
United States Bankruptcy Judge
COPY TO: Peter F Staiti
7400 Montgomery Blvd., Ste. 39
Albuquerque, NM 87109
Stanley Z. Peplinski
11220 Country Club DR. NE
Albuquerque, NM 87111
IN RE
Robert Whitaker
Elayne G. Medina-Whitaker,
Debtors
Stanley Z. Peplinski,
Plaintiff, Creditor
vs.
Robert Whitaker
Elayne G. Medina-Whitaker,
Defendants
Case No: 13-11395-j7
Adversary No. 13-1068 J
Proposed Amended Complaint Objecting to Bankruptcy Filing and to Discharge
Comes now Plaintiff, Stanley Z. Peplinski, Pro Se, begs leave of this Court to file this amended complaint objecting to Debtors Chapter 7 Bankruptcy and discharge of all debts. And states that: 1. Plaintiff begs Court's permission to submit this lengthy complaint; something that may not be routine; but certainly within limits of court rules. Because Plaintiff alleges Debtor committed multiple counts of bankruptcy fraud, Plaintiff asserts that it is within his right to submit considerable details and extensive number of exhibits to back up his claims. And for sake of brevity, where Plaintiff intrudes exhibits it is meant to state "Exhibit xxx is a true copy of..." 2. Table 1 is a Table of Contents and serves as highlight of complaint; Table 2 is a list of Exhibits; both serve to facilitate Court in navigating thru this pleading. Background to this case is included as Exhibit 3. Debtor's family tree & relationship to Debtor's assets & debts are included as Exhibit 4.
Jurisdiction, Venue and Standing
3. This adversarial pleading is filed pursuant to (JSC §727 objecting to Debtor's Chapter 7 discharge; to determine the dischargeability of debt to Plaintiff; and is filed in accordance with Part VII, Adversarial Proceedings, of the Federal Rules of Bankruptcy Procedures regarding jurisdiction. This Court has jurisdiction over these proceedings, the subject matter, personnel and venue to decide this objection. This objection is core to the referenced Debtor's Chapter 7 Petition and the pleader does consent to entry of final orders/judgment by this Bankruptcy Judge. 4. Plaintiff is a resident of Bernalillo County, New Mexico and is a U.S. Citizen. 5. Plaintiff has standing to bring this complaint: he is a creditor named in Debtor's Bankruptcy petition; and has right to object to discharge of his $8402 Metro Court Judgment 6. Plaintiff alleges that with respect to female Debtor named Elayne G. Medina-Whitaker: a) no such legal Debtor exists with the name Elayne G. Medina-Whitaker, (b) female Debtor has not provided proof of this identity; (c) there is no traceability of Elaine G. Medina-Whitaker to Plaintiff's judgment; (d) she has not provided proof of US citizenship; and (e) she made false oath on venue & residency sections of the petition. In effect Elayne G. Medina is not an individual; does not have standing in this Court; the Plaintiff begs this Court to dismiss Bankruptcy petition with prejudice and in support, Plaintiff states that:
a.
b. Based on accumulated evidence, the name Elayne G. Medina-Whitaker is a fictitious name created by Debtor; i.e. Elayne G. Medina-Whitaker is not an individual. If this Court compares Debtor's name on the petition, Elayne G, Medina-Whitaker, with any official government records, like driver's license & IDs (Exhibits ___), NM MVD records (Exhibit _) and SSA records (Exhibit _) the Court will find that no such Debtor named Elayne G. Medina-Whitaker exists; which is prima facia evidence that female Debtor falsified her name on the petition; and that debtor is not an individual. c. No Debtor named Elayne G. Medina-Whitaker resided at his rental property. Exhibit >>> lists the names of residence; but Debtor named Elayne G. Medina-Whitaker is not on the list; accuracy of the lease is attested by renters as noted by initials at the bottom of Exhibit >». Therefore On Form BI Pg 2 in Section entitled "Venue" female Debtor made false oath when she put a check mark in the box marked "Debtor has been domiciled or has had a residence, principal place of business, or principal assets in this District for 180 days immediately preceding the date of this petition or for a longer part of such 180 days than in any other District." d. On Form Bl Pg 2 of 46 in the Section entitled "Certificate by a Debtor Who Resides as a Tenant of Residential Property" the Debtor named Elayne G. Medina-Whitaker made false oath when she placed checkmark in the boxes marked "Landlord has a judgment against the debtor for possession of debtor's residence" Debtor named Elayne G. Medina-Whitaker is not listed in the Metro Court Judgment Case T-4-CV-2013-004000; see Exhibits _ e. the Court will find that male Debtor falsified his legal name on the petition.
Count 2: Metro Court Judgment is Exempt from Discharge
14. Plaintiff avers that Metro Tenant-Landlord restitution case T-4-CV-2013-004000 is against Debtors named Robert Whitaker and Elayne Whitaker-Medina; not against Elayne G. Medina-Whitaker a. Elayne Whitaker-Medina is the name stated on the Metro Judgment granted Plaintiff. Exhibit 19A b. Elayne Whitaker-Medina is the name stated on the Metro Court Summons. Exhibit _. c. Elayne Whitaker-Medina is the name stated on the Return of Service. Exhibit _. 16. Therefore, Plaintiff alleges that Metro Judgment T-4-CV-2013-004000 is exempt from Chapter 7 bankruptcy proceeding; that the Bankruptcy Court should lift the stay against this Plaintiff/Creditor; and the Plaintiff be allowed to pursue collections against Elayne Whitaker-Medina. 17. 11 USC §727(a)(4) debtor's discharge should be denied when "debtor knowingly & fraudulently, in connection with the ease (A) made a false oath or account or (B) presented or used a false claim".
Count 4: Debtor False Oath. Fraud & Concealment Re True Identity & Aliases
29. Plaintiff alleges both Debtors committed false oath, fraud, concealment and destruction of vital records-when they failed to reveal their true identify and disclose all aliases used within 8 yrs immediately preceding filing of petition; and such failure has a direct bearing on this case. For a totality of these alias allegations, Plaintiff requests this Court dismiss with prejudice the Debtor's Bankruptcy petition 30. Plaintiff alleges Debtors list of aliases feels like a "Fruit-of-the-Month" club where each Debtor used an alias to target specific class of Creditor; many aliases were fabricated; in other situations Debtors used unreported names & credit of relatives and previous creditors. Known male debtor's aliases can be gleamed from debtor records Exhibits .... a. Male Debtor listed only Robert Whitaker; whereas in reality he uses at least 9 different aliases;
Robert Craig Whitaker R.P, Whitaker Fred K. Whitaker
Robert C. Whitaker R.P. Whitaker, Jr. Fred Whitaker
Robert Whitaker R.C. Whitaker
b. Female Debtor lists only Elayne G. Medina-Whitaker; whereas she uses at least 18 different aliases:
Elaine Gloria Medina Elaine Whitaker Joe Montoya
Elayne Gloria Medina Elaine Medina-Whitaker Elane Montoya
Elaine G Medina Elayne G. Medina-Whitaker Elayne Montoya-Medma
Elayne G. Medina Elayne Medina-Whitaker Beatrice Medina
Elaine Medina Elayne Medina Whitaker Walter J. Florence & Cheryl B. Florence
Elayne Medina Elayne Whitaker-Medina
33. Plaintiff avers unreported alias Robert Craig Whitaker is male Debtor's birth name so there is no justification for Debtor not listing his birth name on his petition; especially when he used his birth name on so many important documents including Debtor's UNM Diploma and transcripts Exhibits _______ 36. Plaintiff avers that male Debtor usurp his brother's name, Fred K. Whitaker, a.k.a. Fred Whitaker & his credit to purchase a 2004 Honda Accord License HSX898, made disclosure he was owner & made vehicle loan payments. Exhibits... 37. Plaintiff alleges Elaine Gloria Medina is joint female Debtor"s true maiden name, including the proper spelling of the first name. Therefore, there is no excusable reason why she did not list her maiden name on form B1. Failure by Debtor's attorney to assure maiden name was listed on Form B1 indicates this petition was either rushed, was carelessly prepared, was not reviewed & signed by Joint Debtor or was intentionally left blank to create impediment to finding true identity and assets of female Debtor. 39. Plaintiff alleges Debtors committed false oath, fraud & concealment on Schedule B L24 by not providing "Customer lists and other compilations containing PR provided to debtors in connection with obtaining a product or service for personal, family & household" by failing to report family & friends Joe Montoya, Beatrice Medina, Steven A. Medina, Christina Padilla & Francis M. Medina. Exhibits. 40. Plaintiff alleges that she committed false oath, concealment and fraud when female Debtor failed to disclose aliases Elayne Medina, Elaine Whitaker, Elayne Whitaker, Joe Montoya, Joseph Montoya, Elayne Montoya-Medina "Joe and Elane Montoya" and Elane Montoya; and that she used these aliases and individual person"s credit to obtain goods and services Exhibits, 41. Plaintiff alleges that Debtors committed bad faith, false oath, concealment, embezzlement, failure to maintain records, destruction of records and fraud in this Bankruptcy case; a. Female Debtor committed false oath bankruptcy fraud when she failed to disclose her aliases Elaine Whitaker & Elayne Whitaker; and name of Joe Montoya, whose name & credit she used to rent viola. b. Debtors committed false oath bankruptcy fraud when they failed to disclose that they are in possession of a viola (15" Johannes Kohr SN RVS8218) valued at $1477 in 2006. c. Female Debtor committed false oath bankruptcy fraud when she failed to disclose the Robertson & Sons Violin Shop as a Creditor for which female Debtor had a rental account number MON2974 with an unpaid balance of $1477, back in 2006 and that the balance as of today remains unpaid.
And female Debtor violated U.S.C. §727(a)(3) and U.S.C. §727(a)(4)(D) 44. Plaintiff alleges that female Debtor's embezzlement is pattern of fraud 46. Plaintiff alleges that if Debtors are claiming to be married then female Debtor committed false oath, concealment, failure to maintain records, destruction of records, Bankruptcy fraud, Debtor's own records and exhibits provide prima fascia evidence of fraud. Exhibits» 49. Plaintiff alleges that Debtors committed false oath, concealment and fraud when on Form Bl female Debtor failed to disclose aliases Beatrice Median and Bea Medina. 52. Plaintiff alleges that Debtors committed bad faith, false oath, concealment, failure to maintain + records, destruction of records and fraud in this Bankruptcy case: On Schedule B Line 24 failure to provide "Customer lists and other compilations containing PII provided to debtors in connection -with obtaining a product or service for personal, family & household" Failing to report name of Joe Montoya and Beatrice Medina and associated Gable and Satellite services.
Count 5: Debtor False Oath & Concealment Re Addresses
53. Plaintiff alleges Debtors committed false oath, bankruptcy fraud, concealment and destruction of vital records by not providing all addresses used within the eight years immediately preceding filing of petition; falsifying address on petition; maintaining false address in court .file for 8 months; and failure to disclose current address with this court & creditor despite repeated requests by Plaintiff, For a totality of these allegations, Plaintiff requests Court dismiss Bankruptcy case with prejudice. 54. Plaintiff alleges Debtors used 11 unreported addresses Exhibits>>>
7317 Welton NE.ABQ, NM 87109 6229 Dennison Rd SW, ABQ. NM 87121
6706 Los Arboles NE, ABQ, NM 87112 6225 Dennison Rd SW, ABQ. NM 87121
8607 Los Arboles NE, ABQ, NM 87112 3519 Thaxton SE ABQ, NM 87106
8706 Los Arboles NE, ABQ, NM 87112 4901 Lafayette NE, ABQ, NM 87
615 McCloskey Dr. SW, ABQ, NM 87121 10332 Heron Rd SW ABQ, NM 87121
1421 ½ Bonitas SW. ABQ, NM 87105
55. Plaintiff alleges that both Debtors committed false oath and fraud by listing their address as 7300 Welton Dr. NE. ABQ, NM 87109 and continue using this address post petition. Metro Court Judge had restored this rental property back to Plaintiff; tenants were ordered by Metro Court Judge to vacate NLT 22 April 2013; the day before commencement of Bankruptcy case, tenants had been served with and were in the process of being evicted from this address; and tenants had already made other living arrangements. And there was no Debtor named Elayne G. Medina-Whitaker resided at his rental property. 57. Plaintiff begs this Court to order Debtors to (a) stop using Plaintiff's rental property address; (b) immediately provide & update court records with current physical address(es); or (c) face court sanctions
Count 6: Debtor's Pre-petition Criminal Acts are Not Dischargeable Debts
60. Plaintiff alleges Debtor's pre-petition committed felonious criminal acts to defraud Plaintiff, KFCU and ABCWUA: female Debtor embezzled rent money, she made false accusations and false oath regarding KFCU role in missing rent money; male Debtor issued worthless checks and both Debtors feloniously obtained accommodations and & utilities. For a totality of these allegations, the Metro Court Restitution Judgment $8402Judgment (Exhibit _) should be exempt from Bankruptcy discharge. Exhibits _ thru _. U.S.C. §727(aX7) discharge shall be denied if "the debtor has committed any act specified in §(2), (3), (4), (5), or (6) of this subsection, on or within 1 year before the date of the filing of the petition" U.S.C. §727(a)(4)(A) discharge shall be denied if "the debtor knowingly and fraudulently, in or in connection with the case made a false oath or account" 62. Plaintiff alleges two additional two criminal components to Debtors actions in the Metro Judgment, therefore, the $8402 is exempt from discharge in Bankruptcy case, (a) Debtors criminally obtained accommodations without paying rent; violation of criminal statute NMSA §30-16-16(A) The Plaintiff ended up paying Debtor's unpaid balance to prevent ABCWUA from placing a lien against his rental property.
Count 7: Debtors Acted in Bad Faith
64. Debtors never had any intentions to pay rent, the utilities or the Metro Court Tenant-Landlord judgment; Debtors pocketed the cash that were intended for these purposes and then used the Metro Court and Federal Courts to obtain discharge of their debt. 65. Plaintiff alleges that Debtors knew that Landlord/Plaintiff was wise to their KFCU rent deposit fraud (Count ) and was planning on taking tenants to Court for Restitution and eviction. In response, to Debtors hired bankruptcy attorney Peter F. Staiti to represent Debtors in a Tenant-Landlord case filed by Plaintiff in Metropolitan Court. Debtors with pre-meditated intent lost (known as a dive in the sport of boxing) the Tenant-Landlord case just so that a judgment for non-payment of rent could be entered for the record; whereby Debtors would then immediately turn around to file Chapter-7 Bankruptcy and falsely claim insolvency and no assets. This was a calculated plot from the beginning so that Debtors, with malice intent, could rob Landlord/Plaintiff; pocket the $8402 cash they were supposed to be paying Plaintiff; live rent and utility free; and caused damages to the property. 66. Debtors did not show up for negation meetings; did not deliver $2300 as promised.
Count 8: False Oath. Fraud and Concealment re Debtor's Vehicles
67. Plaintiff alleges Debtors made false oath, bankruptcy fraud and concealment when on Schedule B L25 they declared ownership of only 1 vehicle, 2004 Honda Accord; they did not own or were in possession any another vehicles; and that no vehicles was being held by someone else. 68. Plaintiff alleges that Debtors actually own 6 vehicles: (a) that Debtors are the registered owners of four vehicles; (b) that Debtors own and in possession of two vehicles that Debtors keep registered under some else's name; and (c) that Debtors possibly own one more, seventh, vehicle that is being used and held by someone else. Six of the seven vehicles are summarized in Exhibit ___ Table>>>> below and described in detail in the following section. 69. Plaintiff alleges that estimated total retail value of the 6 vehicles, listed at the top half of Table, is -$29,000 as opposed to $7,700 disclosed by Debtors. In addition the total value of the 4 vehicles listed in the lower half of Table>>> is -$38,000; making the combined value of all 10 vehicles in Table >>> ~ $67,000; and this figure more accurately represents the vested interest by this Court and Plaintiff. 70. The 2004 Honda Accord, NM HSX898, is the only vehicle listed by Debtors. However, Debtors committed false oath, fraud and concealment by failing to list alias Fred K. Whitaker as co-signed for the vehicle; and undervalued vehicle value by $2900; actual NADA value is $9900. Exhibits >>> thru >>>. 71. Plaintiff alleges Debtors committed false oath, fraud and concealment and their actions serves to support Plaintiff's claim to dismiss Bankruptcy case with prejudice by failing to disclose ownership of: a. 2001 GMC Jimmy VIN 1GKDT13W8I2114904; that male Debtor used unreported alias R.P.Whitaker to purchase this vehicle and kept it registered in R.P. Whitaker's name. This vehicle has a NADA retail vaLue of-$4475. Exhibits »> thru »> b. 1994 Honda Accord VIN 1HGCD7152RA060214; that male Debtor used unreported alias Robert C. Whitaker to purchase this vehicle and kept it registered in Robert C. Whitaker name. This vehicle has a NADA retail value of-$2675, Exhibits >» thru »> c. 1989 Honda Accord, NM License 452GDK; male Debtor used unreported alias Robert C. Whitaker to purchase this vehicle and kept it registered in Robert C. Whitaker name. Per CarsForSale http://www//CarsForSale.com. this automobile has a retail value of $2200. Exhibits »> thru >» d. 1988 Chew truck, license DWT976; male Debtor keeps registered in unreported alias R.P. Whitaker. Per NADA this is a classic vehicle sought after by Chevy truck collectors; retails -$5300. Exhibits »> thru »» e. 1998 Blue GMC Sonoma, license 457KCZ; Debtors keep registered in unreported alias & previous owners Walter J or Karen Florence name, despite purchasing vehicle nearly a decade ago. This vehicle has a NADA retail value of-$4275. Exhibits »> thru »> 72. Plaintiff begs Court to deny Debtor's attempt to amend original petition to now include the 1998 GMC Sonoma, or any of the vehicles identified above. 73. Plaintiff alleges this Court & Plaintiff have vested interest in 4 vehicles listed in lower half of Table ___: 2012 Honda Civic; 2007 Chevy Malibu; 2004 Nisson Maxima; and 2004 Dodge Dakota Club Pickup truck. Even though Beatrice Medina was never a tenant at Plaintiff's 7300 Welton rental property she fraudulently uses this address for insuring and hiding these 4 vehicles. Exhibits >>> thru >>>>
Count 9: Debtor's False Oath, Concealment and Fraud Regarding Cash & Other
74. Plaintiff alleges that Debtors committed multiple counts of false oath, concealment, fraud and larceny when Debtors failed to disclose the following items; Exhibits >>>> updated Schedules B, I, J: a. $2300 they were in possession on night before filing for bankruptcy, as part of negotiations with landlord that would have stayed debtor's eviction. Exhibit _Plaintiff's attorney stating "Thank you Stanley.. Mrs. Whitaker tells me she has $2300.00 dollars to give you today if they can continue with the lease.. . " Debtor'% hiding $2300 cash is concealment failure to deliver $2300 to Trustee & pocketing the cash is 4th degree felony larceny. b. $6600 cash that female embezzled instead of paying rent. Exhibit, __ Transaction Detail Report for Debtor's savings account showing large sums of cash withdrawal months just prior to filing Bankruptcy; Debtors hiding this $6600 cash is concealment. Debtor's failure to deliver the $6600 cash to Trustee is fraud; Debtor's pocketing the $6600 cash instead of delivering it to the Trustee is 3rd degree felony larceny. c. $31,200 cash that Debtors, by their own written admission, siphoned off to insiders, male Debtors parents, during the time period 2005-2009; based on Debtor's past track record that the actual amount could be as high -S55K during the years 2005-2013. Exhibits>>> Failure to disclose is concealment and failure to report is fraud. Failing to disclose parents R.P. Whitaker and Fannie Whitaker as recipient of financial aid is also a violation of Schedule B Line 24 failure to provide "Customer lists and other compilations containing PI1 provided to debtors in connection with obtaining a product or service for personal, family & household" e. ~$810 cash deposits with PNM and New Mexico Gas Company & refunds of those deposits back to Debtors; and Debtors failed to turn over deposit proceeds to Trustee. not turning over the ~$400 NM Gas Co. refund to the Trustee. Plaintiff alleges that Debtor's actions to discard PNM deposit receipt invoices to have destroyed NM Gas Co deposit receipts ~2 weeks after they filed for bankruptcy, constitutes attempted destruction of vital records in violation of U.S.C. §727(a)(3) and U.S.C. §727(a)(4)(d). f. $68.44 check refund check 4275 from Farmers Insurance Group (Exhibit_); Debtor's hiding this check from Bankruptcy Trustee is concealment. Debtor's responsibility to turn over this check to the Bankruptcy Court Trustee. Debtor's failure to deliver this check to Trustee is fraud. g. That Plaintiff received unreported income and goods from operating a child care facility at Plaintiff's rental property for their great grandniece the granddaughter can could to school, work and make an income. Debtors made false oath & committed fraud by including day care facility operating expenses on Schedule B, I and J; which have a direct impact on "means test".
Count 10: Debtors False Oath & Fraud Re Remainder of Petition Forms & Schedules
77. Ref B1 Pg 1 of 46: Plaintiff alleges that Debtor's estimated asset value $0-$50K is false; more accurate estimate is S100K - S150K 78. B1 Pg 2 of 46: Plaintiff alleges that checkmarks indicating Exhibit D completed and signed by male and female Debtors is false. Actually neither Debtor did signed his Exhibit D. 80. Form 6 Pg 9 of 46: Under the block entitled type of Liability, Debtors failed to include taxes, student loans, divorce decree obligations and obligations to pensions and profit sharing. Under the block entitled "state the following", Debtors failed to include Sch-E non-priority amount. 81. Form 6A, pg 10 of 46, Schedule A Real Property Plaintiff alleges that Debtors made false oath Bankruptcy fraud and concealment when they did not disclose interest in various real properties. Plaintiff alleges Debtors have interest in the real property belonging to: male Debtor's Parent's home since he provide $32-54K assistance to parents, including upkeep of this home and male debtor was included in father's will when he passed away; male Debtor's ex-wife; male Debtor's sister Vanessa Whitaker, male Debtor brother Fred Whitaker, male Debtor 3 daughters current & future real property; female Debtor father Arthur Medina and mother Beatrice Medina (and all her aliases); all of male & female Debtor sister, brothers, nieces, grandnieces, nephews and grandnephews and extended family 82. Form 6B, pg 13 of 46, Schedule B Line 19: Plaintiff alleges that Debtors made false oath Bankruptcy fraud and concealment when they did not disclose interest in class action suit against First Security Bank, who was lien holder for Debtor's 1989 Honda Accord; and attempted destruction of vital documents when Debtors discarded "Notice of Class Action Suite and Settlement Offer." 83. Form 61 Schedule I- Current Income: Plaintiff alleges that Debtor's income needs to be increased by $165 per week ($660/mth) for taking care of a child. Income is based on the $125/wk that Debtor's claimed on the child care they were paying Beatrice Medina for their baby in 2003-2004 timeframe and adjusted for 3% annual inflation rate. Plaintiff alleges now that the "shoe is on the other foot" that this is only equitable; since Debtors previously claimed child care refunds and received payments from their Cafeteria Plan, the Debtors now should be reporting in-kind receipt of income, adjusted for inflation, for operating a child care facility. 84. Plaintiff alleges that Debtors made false oath on Schedule J and states that: a. Debtor's were operating a child care facility from Plaintiff's rental property. Consequently the Debtors expenses to be reduced by the amount allocated to child care facility operations such as: paying for food, diapers & expendables, toys, use of house, utilities, rent, cleaning, etc. b. Schedule J Line labeled "Food" needs to be reduce from $400/mth to $200 to discount for child's food for running day care center. c. Line labeled "Insurance-Auto" needs to be reduced from $80/mth to zero since male Debtor's brother Fred Whitaker is the named insured for the 2004 Honda Accord; and as such is responsible for insurance payments. 85. Plaintiff alleges that Debtors made false oath when they placed a checkmark on B7, Pg 36 or 46, in the box "None" next to the paragraph "
a.
b. Male Debtor committed fraud and false oath when he failed to disclose he was previously married to and subsequently divorced from Sandra J. Kosinski; post marriage to male Debtor she assumed husband's surname and became known as Sandra J. Whitaker. The couple was married on 8 June 1977; divorced on 20 Sept 1986. Exhibits _ thru _. 86. On Schedule F failed to disclose Dish Networks as a creditor with whom Debtors have an unpaid balance of $539; which was written off by creditor
Count 16: PERA and Pension Plans are Not Exempt Assets
96. Plaintiff alleges Debtors committed false oath, bankruptcy fraud, misleading statements and destruction of vital records when on Schedule B L-12 they listed the total value of interest in IRA, ERISA, Keogh or other pension or profit sharing plans as: single PERA account $26,314.89. But Debtors undervalued the plans reported; failed to disclose all of their pension plans; and concealed cash from pension plans they already cashed out. In reality, Debtors have multiple retirement plans with a combined value at nearly $530,000 including Social Security; and Debtors have already cashed out from other retirement plans an unreported additional amount of-$8348. And even after filing for bankruptcy, Debtors continue to fraudulently convert cash into purportedly protected assets instead of paying their debts. Supporting financial figures are gleamed from Debtor's own records. Exhibits >>>>> thru >>>>>. a. Debtors undervalued PERA account by -$69,000; accurate PERA value is -$91,681 Exhibits>>>> b. Debtors have an unreported Retiree Health Care Plan/Account to which male Debtor and employer make bi-weekly contributions; and which has a current estimated values of-$7453. Exhibits >>> c. Debtors have an unreported TSA VAL1C pension account valued -$1210. Exhibits >>> d. Female Debtor has an unreported pension account from employment at the NM Fairground. Exhibit e. Female Debtor already cashed in approx $6569 Welles Fargo Retirement from her Southwest Medical Association Profit Sharing & Salary Def Plan Exhibit f. Female Debtor already cashed in approx $1000 from her 401K retirement fund from her employer Southwest Medical Associates. Exhibits g. Female Debtor already cashed in approx $779 from her 40IK plan from her employer NM Neurological Associates. Exhibit h. Each Debtor has -$200,000 life time pension income from Social Security
Count 17: Debtors Concealed, Destroyed or Attempted Destruction of Vital Records
104. Plaintiff alleges Debtors committed false oath and fraud by destroying or attempting to destroy evidence that would reveal Debtor's identity, addresses, assets & creditors; by discarded all their records just prior to or at time of filing for bankruptcy in violation of Sections U.S.C. §727(a)(3) and §727(a)(4)(D). These records have a direct bearing on the case at bar. Therefore bankruptcy petition should be dismissed with prejudice. 105. Plaintiff's avers that the majority of evidence presented as Exhibits comes from the trash that tenants discarded. Exhibits ..... Through sorting of the trash Plaintiff is now able to reconstruct many of Plaintiff's finances, assets & frauds over the past 20 years. Plaintiff requests that Court view Debtor's discarding these documents as prima fascia evidence that Debtor's intended to destroy vital records in their Chapter-7 Bankruptcy case; such action is a criminal offense under the Bankruptcy laws.
Summary
Wherefore, Plaintiff has shown that Debtors did not exercise alternatives to Chapter 7, submitted a fraudulent bankruptcy petition, do not pass the means test, committed multiple acts of false oath, fraud & concealment and attempted destruction of vital records this Court should dismiss Creditor's petition and exempt Plaintiff's Metro Court Judgment. Plaintiff further asks that Court award cost, fees and damages to Plaintiff including but not limited to compensation for the Plaintiff's enormous amount of time and energy spent in researching this case, disclosing this fraud, preparing, filing and presenting this complaint; protecting himself from a fraudulent Bankruptcy petition; and for the emotional drain, stress and Impact to his health that that Debtor's petition has brought upon him and into his life. That the Court take appropriate action against Debtors for filing fraudulent Bankruptcy petition. And Plaintiff begs this Court to report both Debtors to the U.S. District Attorney and appropriate government agencies named in the body of pleading regarding additional fraud Debtors perpetrated on the IRS, NM TRD, MVD, Medicaid, Food Stamp and Unemployment programs.
Respectfully Submitted by
Stanley Z. Peplinski, Pro Se
11220 Country Club DR. NE
Albuquerque, NM 87111
(505)362-2731
CERTIFICATE OF SERVICE
I certify that I mailed a copy of the foregoing document to the following parties via the United States Postal Service (USPS) First Class mail, postage pre-paid, on this 10th day of December 2013. Debtor's Attorney,
Peter F, Staiti
320 Gold Ave SW Suite 1400
Albuquerque, NM 87102
And that I am unable to mail copies directly to the Debtors since they no longer reside at 7300 Welton, NE, ABQ, NM 87109, which is Debtor's address on file with this Court; and that Debtor's have failed to provide an updated residence address. Stanley Z. Peplinski
Notice Recipients
District/Off: 1084-1
Case: 13-01068-j
User: christa
Form ID: pdfor1
Date Created: 3/28/2014
Total: 2
Recipients of Notice of Electronic Filing:
aty Peter F Staiti peter@staitilawoffices.com
TOTAL: 1 Recipients submitted to the BNC (Bankruptcy Noticing Center):
pla Stanley Z. Peplinski 11220 Country Club DR. NE Albuquerque, NM 87111
TOTAL: 1