Dymarkowski v. Boyd (In re Bailey)

In Re: Kimberly Lazelle Bailey, Debtor.

Douglas A. Dymarkowski, Trustee Plaintiff, v. Darryl L. Boyd, Defendant.

Case No. 18-33023

Adv. Pro. No. 19-03055

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF OHIO WESTERN DIVISION

September 30, 2020

The court incorporates by reference in this paragraph and adopts as the findings and analysis of this court the document set forth below. This document has been entered electronically in the record of the United States Bankruptcy Court for the Northern District of Ohio.

Chapter 7

Judge John P. Gustafson

MEMORANDUM OF DECISION AND ORDER REGARDING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

This cause is before the court on Plaintiff-Trustee Doug Dymarkowski's ("Plaintiff" or "Trustee") Motion for Summary Judgment ("Motion"). Plaintiff is the duly appointed Chapter 7 Trustee of the bankruptcy estate of debtor Kimberly Lazelle Bailey ("Debtor") in this adversary proceeding against Defendant Darryl L. Boyd ("Defendant"), Debtor's brother.

JURISDICTION AND VENUE

The court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §1334(b) as a civil proceeding arising in or related to a case under Title 11. The Chapter 7 case and all proceedings in it arising under Title 11, including this adversary proceeding, have been referred to this court for decision. 28 U.S.C. §157(a); General Order 2012-7 of the United States District Court for the Northern District of Ohio. This is a core matter pursuant to 28 U.S.C. §157(b)(2)(H). Venue is proper pursuant to 28 U.S.C. §1409(a).

FACTUAL BACKGROUND

On summary judgment the types of evidence the court may consider are governed, in part, by Federal Rule of Civil Procedure 56(c)(1)(A)-(B)¹, which states:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Federal Rule of Civil Procedure 56(c)(3) further provides that: "The court need consider only the cited materials, but may consider other materials in the record."

On or about September 21, 2011, Defendant purchased the following real property for $900 through a tax sale: 2039 Joffre Street, Toledo Ohio 43607 ("Joffre Property"). [Doc. #22, p. 3, ¶1; Doc. #22, Def. Ex. 1, p. 5].

Defendant had outstanding real estate taxes and could not transfer the Joffre Property tohimself. [Doc. #22, p. 3, ¶1]. By quitclaim deed, Defendant deeded² the Joffre Property to Debtor. [Id.]. Defendant asserts that he called Debtor to get her permission to place her name on the deed that would transfer the Joffre Property to her. [Id.].

On or about January 2012, Defendant purchased the following property from Visio Limited et al. ("Visio Limited") through a Contract For Sale: 1104 Booth Avenue, Toledo, Ohio 43607 ("Booth Property") [Doc. #22, p. 3, ¶2; Doc. #22, Def. Ex. 3, pp. 7-9].³ The Booth Property was transferred from Visio Limited to "HBI LLC," but Defendant avers he "never formally formed this LLC." [Doc. #22, p. 3, ¶2]. Subsequently, in October of 2012, HBI LLC quit-claimed the Booth Property to Debtor Kimberly Bailey. [Doc. #22, p. 14]. His Affidavit states that he made the transfer so that he could get utilities in his name. [Doc. #22, p. 3, ¶2].

In late July of 2017, a quitclaim deed was executed transferring the Booth Property from the Debtor, Kimberly Bailey, to the Defendant. [Doc. #22, p. 15; Doc. #22, p. 3, ¶2]. Defendant's Affidavit reflects that he prepared the Booth Property deed. [Doc. #22, p. 3, ¶2]. Defendant's Affidavit states that the Booth Property is worth about $5,000. [Id.].

The deed quit-claiming the Joffre Property back to Defendant was executed on July, 2, 2018. [Doc. #22, p. 3, ¶1]. Defendant's Affidavit reflects that he prepared the Joffre Property deed. [Id.]. Defendant's Affidavit states that the Joffre Property was gutted by fire and has no value. [Id.].

The February 1, 2020 printouts of the Auditor's Reports reflect that Darryl L. Boyd is the record owner of both the Joffre and Booth Properties, with Kimberly L. Bailey as the former owner. [Docs. ##17-3 & 17-4]. The "sale amount" for each property is listed as $10. [Id.].

In his responses to the Trustee's Interrogatories, Defendant describes his interest in both the Joffre and Booth Properties as an ownership interest. [Doc. #17-5, p. 7, Q. #15, 16].

The Debtor filed for relief under Chapter 7 of Title 11 of the United States Code on or about October 1, 2018. [Case No. 18-3302, Doc. #1]. Debtor's Statement of Financial Affairs disclosed that prior to filing her bankruptcy case, the Debtor transferred the Joffre and Booth Properties to Defendant Darryl Boyd. [Case No. 18-3302, Doc. #1, pp. 38-39].

Plaintiff filed his complaint in this adversary proceeding seeking avoidance of the Debtor's transfer of the Joffre and Booth Properties described in Exhibits 17-1 and 17-2. [Doc. #1]. On January 28, 2020 this court entered an Adversary Proceeding Scheduling Order [Doc. #14], designating March 16, 2020 as the final day to file a motion for summary judgment, and April 3, 2020 as the final day to file any response. [Doc. #14, p. 2]. On February 17, 2020, Plaintiff filed their Motion for Summary Judgment. [Doc. #17].

Defendant filed a Motion to Extend Time to File a Response to Plaintiff's Motion for Summary Judgment on March 31, 2020. [Doc. #18]. This court granted Defendant's Motion and designated the final day for Defendant to file his response as May 15, 2020. [Doc. #19]. Defendant filed a second Motion to Extend Time to File a Response to Plaintiff's Motion for Summary Judgment on May 14, 2020. [Doc. #21]. That same day, Defendant filed a document labeled Filing of Affidavit of Defendant Darryl L. Boyd. [Doc. #22]. This court granted Defendant's motion [Doc. #21], and designated the final day for Defendant to file his response as June 5, 2020. [Doc. #23].

On June 23, 2020, this court set the matter for final telephonic hearing on July 14, 2020 at 3:00 p.m. [Doc. #25].

Plaintiff submitted the following in support of their motion for summary judgment:

1. A Quitclaim Deed, where Grantor, the Debtor, conveys and quitclaims to Grantee, the Defendant, all interest in Lot Numbers One Hundred Eighty-Nine(189) and One Hundred ninety (190) in parkside, a subdivision in the City of Toledo, Lucas County, Ohio, in accordance with Volume 27 of Plats, page 14, dated July 2, 2018 and recorded October 1, 2018. Recorded in the County Recorder for Lucas County. [Doc. #17-1].

2. A Quitclaim Deed, where Grantor, the Debtor, conveys and quitclaims to Grantee, the Defendant, all interest in LOT NUMBER TWO(2) IN BLOCK NUMBER 41 IN B. F. SAWYERS, S ADDITION TO THE CITY OF TOLEDO.LUCAS COUNTY. OHIO IN ACCORDANCE WITH VOLUME 19 OF PLATS, PAGE 13, dated July 28, 2017 and recorded July 31, 2017 in the County Recorder for Lucas County. [Doc. #17-2].

3. A copy of the Auditor's Report for 2039 Joffre Street, Toledo, Ohio 43607. [Doc. #17-3].

4. A copy of the Auditor's Report for 1104 Booth Avenue, Toledo, Ohio 43607. [Doc. #17-4].

5. Defendant's Answer to Plaintiff's First Set of Requests for Admission, Interrogatories and Requests for Production of Documents. [Doc. #17-5].

The Defendant filed the following:

1. Affidavit of Defendant Darryl L. Boyd. [Doc. #22, pp. 3-4].

2. Forfeited Land Certificate of Sale attached as Exhibit 1. [Doc. #22, p. 5].

3. A Quitclaim Deed: where Grantor, the Debtor, quitclaims to Grantee, the Defendant, all interest in Lot Numbers One Hundred Eighty-Nine(189) and One Hundred ninety (190) in parkside, a subdivision in the City of Toledo, Lucas County, Ohio, in accordance with Volume 27 of Plats, page 14, dated July 2, 2018 and recorded October 1, 2018. Recorded in the County Recorder for Lucas County. This deed is attached as Exhibit 2. [Doc. #22, p. 6].

4. A Contract for Sale between Visio Limited, et. al. and Darryl Boyd attached as Exhibit 3. [Doc. #22, pp. 7-10].

5. A Special/Limited Warranty Deed, between EH POOLED 1010 LP, a Texas limited partnership, the Grantor, and HBI LLC, in which Grantor does hereby grant, bargain, sell and convey, in fee simple, with Special and/or Limited Warranty of Title, unto the Grantees, the following described lots, tracts or parcels of land: Property Address: 1104 Booth Ave, Toledo OH 43608. All that certain lot or parcel of land, lying, being and situated in the City/Township/Borough of TOLEDO, County of Lucas, and the State of OH to-wit: LOT NUMBER TWO(2) IN BLOCK NUMBER 41 IN B. F. SAWYERS, S ADDITION TO THE CITY OF TOLEDO.LUCAS COUNTY. OHIOIN ACCORDANCE WITH VOLUME 19 OF PLATS, PAGE 13, dated January 13, 2012 and recorded February 24, 2012. Recorded in the County Recorder for Lucas County. Defendant attaches this as Exhibit 5. [Doc. #22, pp. 10-13].

6. A Quitclaim Deed, where Grantor, Defendant, conveys and quitclaims to Grantee, the Debtor, all interest in LOT NUMBER TWO(2) IN BLOCK NUMBER 41 IN B. F. SAWYERS, S ADDITION TO THE CITY OF TOLEDO.LUCAS COUNTY. OHIO IN ACCORDANCE WITH VOLUME 19 OF PLATS, PAGE 13, dated October 15, 2012 and recorded October 25, 2011 in the County Recorder for Lucas County. Defendant attaches this as Exhibit 5. [Doc. #22, p. 14].

7. A Quitclaim Deed, where Grantor, Debtor, conveys and quitclaims to Grantee, the Defendant, all interest in LOT NUMBER TWO(2) IN BLOCK NUMBER 41 IN B. F. SAWYERS, S ADDITION TO THE CITY OF TOLEDO.LUCAS COUNTY. OHIO IN ACCORDANCE WITH VOLUME 19 OF PLATS, PAGE 13, dated July 28, 2017 and recorded July 31, 2017 in the County Recorder for Lucas County. Defendant attaches this as Exhibit 6. [Doc. #22,

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