IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

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1 Document Page 1 of 15 IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division ) In re: ) Case No RGM Ronald Steven Federici, ) Chapter 7 Debtor. ) ) ) W. Clarkson McDow, Jr., ) United States Trustee., ) Plaintiff, ) Adv. Proc. No RGM v. ) Ronald Steven Federici, ) Defendant. ) ) ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT OF UNITED STATES TRUSTEE OBJECTING TO DISCHARGE PURSUANT TO 11 U.S.C. 727 Defendant Ronald Steven Federici ( Federici or Defendant ), by and through the undersigned counsel, respectfully files his Answer and Affirmative Defenses to the Complaint of United States Trustee Objecting to Discharge Pursuant to 11 U.S.C. 727 (the "Complaint") filed by W. Clarkson McDow, Jr., United States Trustee ( Plaintiff ), and states as follows: ANSWER 1. Defendant admits the allegations contained in paragraph 1 of the Complaint. 2. Defendant admits the allegations contained in paragraph 2 of the Complaint. 3. Defendant admits the allegations contained in paragraph 3 of the Complaint. 4. Defendant admits the allegations contained in paragraph 4 of the Complaint. 5. Defendant admits the allegations contained in paragraph 5 of the Complaint. 6. Defendant admits the allegations contained in paragraph 6 of the Complaint. 7. With respect to the allegations contained in paragraph 7 of the Complaint, the Petition, Schedules of Assets and Liabilities and Statement of Financial Affairs filed in the above- Robert M. Marino, Esq. VSB #26076 Redmon Peyton & Braswell, LLP 510 King Street, Suite 301 Alexandria, VA Counsel for Ronald Steven Federici

2 Document Page 2 of 15 captioned Chapter 7 case (the Bankruptcy Case ) speak for themselves. Defendant denies any express or implied allegation that he knowingly or intentionally committed perjury in supplying information with respect to the completion of any of the aforementioned documents. 8. With respect to the allegations contained in paragraph 8 of the Complaint, the Petition filed in Bankruptcy Case speaks for itself. Defendant denies any express or implied allegation that he knowingly or intentionally supplied untrue or incorrect information in the Petition. 9. With respect to the allegations contained in paragraph 9 of the Complaint, the Summary and Schedules filed in Bankruptcy Case speak for themselves. Defendant denies any express or implied allegation that he knowingly or intentionally supplied untrue or incorrect information in the Summary or Schedules. 10. With respect to the allegations contained in paragraph 10 of the Complaint, the Statement of Financial Affairs filed in Bankruptcy Case speaks for itself. Defendant denies any express or implied allegation that he knowingly or intentionally supplied untrue or incorrect information in the Statement of Financial Affairs or the attachments thereto. 11. With respect to the allegations contained in paragraph 11 of the Complaint, the Defendant admits that the real property located at Connor Drive, Unit T-1, Centreville, Virginia (the Centreville Property ) was not included in Schedule A of the Schedules of Assets and Liabilities initially filed in the Bankruptcy Case. Defendant denies any express or implied allegation that he knowingly or intentionally omitted the Centreville Property from the Schedules. Defendant further states that on or about August 3, 2007, he caused to be filed in the Bankruptcy Case an Amended Schedule A which properly reflected the Centreville Property as an asset. 12. Defendant admits the allegations contained in paragraph 12 of the Complaint. Defendant further states that he has only been married since April With respect to the allegations contained in paragraph 13 of the Complaint, Schedule I filed in Bankruptcy Case speaks for itself. Defendant denies any express or implied allegation that he had any legal obligation or requirement to list his wife s income in Schedule I. 2

3 Document Page 3 of Defendant is without sufficient information to admit or deny the allegations contained in paragraph 14 of the Complaint and therefore denies the same. Defendant further denies any express or implied allegation that he had any legal obligation or requirement to investigate or disclose his wife s income in connection with the Bankruptcy Case. 15. With respect to the allegations contained in paragraph 15 of the Complaint, the Defendant admits that the civil action styled Ronald S. Federici v. Joni L. Probandt, et al., Case No (the Probandt Action ) was not included in response to Question 4.a. of the Statement of Financial Affairs ( SOFA ) initially filed in the Bankruptcy Case. Defendant denies any express or implied allegation that he knowingly or intentionally omitted the Probandt Action from the SOFA. Defendant further states that on or about August 3, 2007, he caused to be filed in the Bankruptcy Case an Amended SOFA which included reference to the Probandt Action and noted that the action had been settled. 16. Defendant is without sufficient information to admit or deny the allegations contained in paragraph 16 of the Complaint and therefore denies same and demands strict proof intentionally omitted debts and/or obligations in the Schedules. 17. With respect to the allegations contained in paragraph 17 of the Complaint, the Certificate of Service appended to the Notice of Chapter 7 Bankruptcy Case (Docket Entry No. 6) speaks for itself. 18. With respect to the allegations contained in paragraph 18 of the Complaint, the Certificate of Service appended to the Order to Debtor (Docket Entry No. 7) speaks for itself. 19. With respect to the allegations contained in paragraph 19 of the Complaint, the Order to Debtor (Docket Entry No. 7) speaks for itself. 20. The allegations contained in paragraph 20 of the Complaint set forth a legal conclusion for which no response is required. 21. Defendant admits the allegations contained in paragraph 21 of the Complaint. 3

4 Document Page 4 of The allegations contained in paragraph 22 of the Complaint set forth a legal conclusion for which no response is required. 23. The allegations contained in paragraph 23 of the Complaint set forth a legal conclusion for which no response is required. 24. The allegations contained in paragraph 24 of the Complaint set forth a legal conclusion for which no response is required. Defendant further states that the referenced Agreement and Declaration of Trust speaks for itself. 25. The allegations contained in paragraph 25 of the Complaint set forth a legal conclusion for which no response is required. 26. The allegations contained in paragraph 26 of the Complaint set forth a legal conclusion for which no response is required. 27. Defendant is without sufficient information to admit or deny the allegations contained in paragraph 27 of the Complaint and therefore denies same and demands strict proof thereof. Defendant further denies any express or implied allegation that the Chapter 7 Trustee s knowledge, agreement or consent to a transfer of the subject real property was legally required under the circumstances. 28. With respect to the allegations contained in paragraph 28 of the Complaint, the docket maintained in the Bankruptcy Case speaks for itself. Defendant further states that the docket does not appear to reflect any order approving any transfer of real property in the Bankruptcy Case. Defendant denies any express or implied allegation that a court order approving a transfer of the subject real property was legally required under the circumstances. 29. With respect to the allegations contained in paragraph 29 of the Complaint, the docket maintained in the Bankruptcy Case speaks for itself. Defendant further states that the docket does not appear to reflect any notice with respect to a transfer of real property in the Bankruptcy Case. Defendant denies any express or implied allegation that notice to creditors or other parties in interest with respect to a transfer of the subject property was legally required under the circumstances. 4

5 Document Page 5 of With respect to the allegations contained in paragraph 30 of the Complaint, the Debtor admits that he executed the referenced Deed of Appointment of Successor Trustee on the date indicated. The remaining allegations set forth a legal conclusion for which no response is required. Defendant further states that the Deed of Appointment speaks for itself. 31. Defendant is without sufficient information to admit or deny the allegations contained in paragraph 31 of the Complaint and therefore denies same and demands strict proof thereof. Defendant further denies any express or implied allegation that the Chapter 7 Trustee s knowledge, agreement or consent to the appointment of the subject successor trustee was legally required under the circumstances. 32. With respect to the allegations contained in paragraph 32 of the Complaint, the docket maintained in the Bankruptcy Case speaks for itself. Defendant further states that the docket does not appear to reflect any order authorizing the appointment of any successor trustee for any trust. Defendant denies any express or implied allegation that a court order authorizing the appointment of the subject successor trustee was legally required under the circumstances. 33. The allegations contained in paragraph 33 of the Complaint set forth a legal conclusion for which no response is required. 34. Defendant is without sufficient information to admit or deny the allegations contained in paragraph 34 of the Complaint and therefore denies same and demands strict proof thereof. Defendant further denies any express or implied allegation that the Chapter 7 Trustee s knowledge, agreement or consent to the assignment of the subject beneficial interest was legally required under the circumstances. 35. With respect to the allegations contained in paragraph 35 of the Complaint, the docket maintained in the Bankruptcy Case speaks for itself. Defendant further states that the docket does not appear to reflect any order authorizing the assignment of any beneficial interest in any trust. Defendant denies any express or implied allegation that a court order authorizing the assignment of the subject beneficial interest was legally required under the circumstances. 5

6 Document Page 6 of With respect to the allegations contained in paragraph 36 of the Complaint, Defendant admits that he received the sum of $250,000 from Sovereign Capital Development Authority, LP ( Sovereign ). The remaining allegations of the paragraph set forth a legal conclusion for which no response is required. To the extent that a response is required, Defendant denies all of the remaining allegations and demands strict proof thereof. 37. With respect to the allegations contained in paragraph 37 of the Complaint, Defendant admits that he did not provide notice to the Chapter 7 Trustee, the Court or the creditors that he received a $250,000 loan from Sovereign. Defendant denies any express or implied allegation that notice with respect to receipt of the loan proceeds was legally required under the circumstances. 38. Defendant admits the allegations contained in paragraph 38 of the Complaint. 39. Defendant is without sufficient information to admit or deny the allegations contained in paragraph 39 of the Complaint and therefore denies same and demands strict proof thereof. Defendant denies any express or implied allegation that the Chapter 7 Trustee s knowledge, agreement or consent to the subject disbursements was legally required under the circumstances. 40. With respect to the allegations contained in paragraph 40 of the Complaint, the docket maintained in the Bankruptcy Case speaks for itself. Defendant further states that the docket does not appear to reflect any order authorizing any disbursements to creditors of the bankruptcy estate. Defendant denies any express or implied allegation that a court order authorizing the subject disbursements was legally required under the circumstances. 41. Defendant admits the allegations contained in paragraph 41 of the Complaint. 42. Defendant admits the allegations contained in paragraph 42 of the Complaint. 43. With respect to the allegations contained in paragraph 43 of the Complaint, the Transcript of the Meeting of Creditors speaks for itself. To the extent that the Transcript disagrees with the allegations of paragraph 43, Defendant denies the allegations and demands strict proof 6

7 Document Page 7 of 15 intentionally omitted information in his Schedules or SOFA. 44. With respect to the allegations contained in paragraph 43 of the Complaint, the Transcript of the Meeting of Creditors speaks for itself. To the extent that the Transcript disagrees with the allegations of paragraph 44, Defendant denies the allegations and demands strict proof intentionally failed to disclose his ownership of the Centreville Property at the meeting of creditors. 45. With respect to the allegations contained in paragraph 45 of the Complaint, the Transcript of the Meeting of Creditors speaks for itself. To the extent that the Transcript disagrees with the allegations of paragraph 44, Defendant denies the allegations and demands strict proof intentionally failed to disclose the subject transfer at the meeting of creditors. Defendant further denies any express or implied allegation that disclosure of the subject transfer was legally required under the circumstances. 46. Defendant incorporated the answers set forth in paragraphs 1 through 45 of this 47. Defendant denies the allegations contained in paragraph 47 of the Complaint and demands strict proof thereof. The wherefore paragraph following paragraph 47 constitutes a Defendant denies all allegations contained therein and demands strict proof thereof. 48. Defendant incorporated the answers set forth in paragraphs 1 through 47 of this 49. Defendant denies the allegations contained in paragraph 49 of the Complaint and demands strict proof thereof. The wherefore paragraph following paragraph 49 constitutes a Defendant denies all allegations contained therein and demands strict proof thereof. 7

8 Document Page 8 of Defendant incorporated the answers set forth in paragraphs 1 through 49 of this 51. Defendant denies the allegations contained in paragraph 51 of the Complaint and demands strict proof thereof. The wherefore paragraph following paragraph 51 constitutes a Defendant denies all allegations contained therein and demands strict proof thereof. 52. Defendant incorporated the answers set forth in paragraphs 1 through 51 of this 53. Defendant denies the allegations contained in paragraph 53 of the Complaint and demands strict proof thereof. The wherefore paragraph following paragraph 53 constitutes a Defendant denies all allegations contained therein and demands strict proof thereof Defendant incorporated the answers set forth in paragraphs 1 through 53 of this 55. Defendant denies the allegations contained in paragraph 55 of the Complaint and demands strict proof thereof. The wherefore paragraph following paragraph 55 constitutes a Defendant denies all allegations contained therein and demands strict proof thereof. 56. Defendant incorporated the answers set forth in paragraphs 1 through 55 of this 57. Defendant denies the allegations contained in paragraph 57 of the Complaint and demands strict proof thereof. The wherefore paragraph following paragraph 57 constitutes a Defendant denies all allegations contained therein and demands strict proof thereof. 58. Defendant incorporated the answers set forth in paragraphs 1 through 57 of this 8

9 Document Page 9 of With respect to the allegations contained in paragraph 59 of the Complaint, the Transcript of the Meeting of Creditors speaks for itself. To the extent that the Transcript disagrees with the allegations of paragraph 59, Defendant denies the allegations and demands strict proof intentionally provided untrue or inaccurate information in his petition, schedules or statement of financial affairs. 60. Defendant denies the allegations contained in paragraph 60 of the Complaint and demands strict proof thereof. The wherefore paragraph following paragraph 60 constitutes a Defendant denies all allegations contained therein and demands strict proof thereof 61. Defendant incorporated the answers set forth in paragraphs 1 through 60 of this 62. With respect to the allegations contained in paragraph 62 of the Complaint, the Transcript of the Meeting of Creditors speaks for itself. To the extent that the Transcript disagrees with the allegations of paragraph 59, Defendant denies the allegations and demands strict proof intentionally provided untrue or inaccurate information in his petition, schedules or statement of financial affairs. 63. Defendant denies the allegations contained in paragraph 63 of the Complaint and demands strict proof thereof. The wherefore paragraph following paragraph 63 constitutes a Defendant denies all allegations contained therein and demands strict proof thereof 64. Defendant incorporated the answers set forth in paragraphs 1 through 63 of this 65. With respect to the allegations contained in paragraph 65 of the Complaint, the Transcript of the Meeting of Creditors speaks for itself. To the extent that the Transcript disagrees with the allegations of paragraph 65, Defendant denies the allegations and demands strict proof 9

10 Document Page 10 of 15 intentionally provided untrue or inaccurate information in his petition, schedules or statement of financial affairs. 66. Defendant denies the allegations contained in paragraph 66 of the Complaint and demands strict proof thereof. The wherefore paragraph following paragraph 66 constitutes a Defendant denies all allegations contained therein and demands strict proof thereof 67. Defendant incorporated the answers set forth in paragraphs 1 through 66 of this 68. With respect to the allegations contained in paragraph 68 of the Complaint, the Transcript of the Meeting of Creditors speaks for itself. To the extent that the Transcript disagrees with the allegations of paragraph 68, Defendant denies the allegations and demands strict proof intentionally provided untrue or inaccurate information in his petition, schedules or statement of financial affairs. 69. Defendant denies the allegations contained in paragraph 69 of the Complaint and demands strict proof thereof. The wherefore paragraph following paragraph 69 constitutes a Defendant denies all allegations contained therein and demands strict proof thereof 70. The final paragraph of the Complaint constitutes a prayer for relief for which no response is required. To the extent that a response is required, Defendant denies all allegations contained therein and demands strict proof thereof. Defendant also asks for such other and further relief as is just and proper. 10

11 Document Page 11 of 15 AFFIRMATIVE DEFENSES First Affirmative Defense The Complaint fails to state a claim upon which relief may be granted. Second Affirmative Defense At no time during the pendency of the Bankruptcy Case has the real property at Compton Road, Clifton, Virginia ( Clifton Property ) contained any equity. Specifically, at all time relevant to this adversary proceeding, the estimated fair market value of the Clifton Property was exceeded by the value of the liens encumbering said property. As such, the Clifton Property could never have provided any benefit to unsecured creditors, would never have been administered by the Chapter 7 Trustee, and should have been abandoned pursuant to the provisions of 11 U.S.C In the absence of any equity in the Clifton Property and in light of the inevitable abandonment of said property, creditors could not have been harmed by any transfer of the Clifton Property. Third Affirmative Defense The Defendant s debts listed in his Schedules were primarily of a business nature and were not primarily of a consumer nature. As such, Defendant s wife s financial information was irrelevant to the Chapter 7 case and Defendant was not legally required to provide information with respect to his wife s income in order to qualify for relief under Chapter 7 of the Bankruptcy Code. Furthermore, even if the Defendant s debts were primarily of a consumer nature, the Defendant s wife maintained a separate household as of the commencement of the Bankruptcy Case. As such, Defendant s wife s financial information was irrelevant to the Chapter 7 case and 11

12 Document Page 12 of 15 Defendant was not legally required to provide information with respect to his wife s income in order to qualify for relief under Chapter 7 of the Bankruptcy Code. Fourth Affirmative Defense Defendant did not knowingly or intentionally fail to disclose his ownership interest in the Centreville Property. The Centreville Property was the subject of a lawsuit in 2006 (Probandt Action), the settlement of which resulted in the recordation of a quitclaim deed conveying title to the Centreville Property to the Defendant. Prior to that time, the Defendant did not own the Centreville Property and did not have any responsibility for its maintenance or upkeep. At the time of the Centreville Property s conveyance to the Defendant and continuing through the filing of the Bankruptcy Case, Defendant s health was greatly debilitated by cancer and this hampered his ability to clearly and completely recall his real property interests. When he was reminded of his interest in the Centreville Property, he promptly amended his Schedules to reflect his ownership interest therein. The Chapter 7 Trustee was not impeded or prevented from taking appropriate action to administer the Centreville Property. Indeed, the Chapter 7 Trustee took no affirmative steps to administer this asset in the Bankruptcy Case, the Centreville Property was subsequently the subject of a lift stay motion which was granted by the Court, and the property may actually have been foreclosed. Fifth Affirmative Defense Defendant did not knowingly or intentionally fail to disclose the Probandt Action in the SOFA. Defendant s poor health, leading up to and continuing through the commencement of the Bankruptcy Case, hampered his ability to clearly and completely recall all lawsuits to which he was a party. When he was reminded of the Probandt Action, he promptly amended his SOFA to reflect it in Question 4.b. and noted that the action had been settled. Again, the omission from the 12

13 Document Page 13 of 15 SOFA did not impede or prevent the Chapter 7 Trustee from taking appropriate action to administer the Centreville Property. Sixth Affirmative Defense The $250,000 in proceeds received by Defendant from Sovereign constituted a postpetition loan secured by a lien in the Clifton Property. The Defendant is required to repay the loan in the future. While the mechanics of the lien are not conventional, the intention of the Defendant was to convey a lien in the Clifton Property in exchange for the loan and Defendant believed that he was conveying a lien in the Clifton Property by virtue of the documents which Sovereign required that he sign. At all times relevant to this action, Defendant believed that the Clifton Property did not contain any equity and Sovereign did not require that the Property have equity to make the loan. Seventh Affirmative Defense Defendant did not knowingly or intentionally fail to disclose all of his creditors in his Schedules, SOFA or petition. Any omission of a creditor on Defendant s bankruptcy Schedules was inadvertent and unintentional, attributable in part to his poor health leading up to the filing of the Bankruptcy Case. investigation or discovery. Eighth Affirmative Defense Defendant reserves the right to assert additional defenses based upon further 13

14 Document Page 14 of 15 WHEREFORE, for the foregoing reasons, Defendant respectfully requests that this Court enter judgment (a) dismissing the Complaint and directing the immediate entry of a discharge in Defendant s Bankruptcy Case; (b) awarding to the Defendant costs, expenses and reasonable attorneys' fees; and (c) granting to the Defendant such other and further relief as is just and appropriate. Dated: January 28, 2008 Respectfully submitted, /s/ Robert M. Marino Robert M. Marino, Esq. VSB #26076 Redmon, Peyton & Braswell, LLP 510 King Street, Suite 301 Alexandria, Virginia Phone: Facsimile: Counsel for Defendant Ronald S. Federici 14

15 Document Page 15 of 15 CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing Answer to be served this 28 th day of January, 2008, by upon the following persons: Jack Frankel, Esq. Office of United States Trustee 115 South Union Street Alexandria, VA /s/ Robert M. Marino Robert M. Marino 15

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