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In re Zizza

United States District Court, D. Massachusetts

March 8, 2017

In re KIMBERLY ANN ZIZZA, Debtor.
v.
WILLIAM K. HARRINGON, UNITED STATES TRUSTEE FOR REGION 1, Appellee. KIMBERLY ANN ZIZZA, Appellant,

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge.

         Kimberly Ann Zizza appeals from the United States Bankruptcy Court's judgment denying her a discharge pursuant to 11 U.S.C. § 727(a)(4)(A). See Notice of Appeal [#1]. For the following reasons, the judgment is AFFIRMED.

         I. Background

         Zizza applied for Chapter 13 Bankruptcy on March 6, 2011. Joint Appendix 6 [#13].[1] On April 8, 2011, the standing Chapter 13 Trustee[2] convened and presided over a creditors' meeting as described at 11 U.S.C. § 341. (J.A. 43).

         In June and September 2011, Zizza amended certain bankruptcy filings. (J.A. 134, 154).

         On October 5, 2012, Trustee Pappalardo sought dismissal of Zizza's bankruptcy case for failure to make the plan payments. (J.A. 327). Shortly thereafter, on October 30, 2012, Zizza sought again to amend her bankruptcy filings, including her Statement of Financial Affairs. (J.A. 158). In these papers she sought to add “two different personal injury tort claims involving the Debtor as the plaintiff, ” as well as claimed exemptions of these claims. (J.A. 158).

         Following these disclosures, on November 21, 2012, Trustee Pappalardo moved to convert Zizza's Chapter 13 petition to a Chapter 7 petition. On January 22, 2013, the United States Bankruptcy Judge held a hearing on this motion, at which Zizza, her personal injury attorney Nicholas Guerrera, her bankruptcy attorney Anthony Rozzi, and Chapter 13 Trustee Pappalardo participated. (J.A. 214-237). Ruling from the bench, the Bankruptcy Judge converted the Chapter 13 petition to a Chapter 7 petition. (J.A. 235-236). On October 18, 2013, the United States Bankruptcy Appellate Panel for the First Circuit upheld this decision. (J.A. 239-248). The converted Chapter 7 proceedings then continued apace. (J.A. 12-21).

         II. The Adversary Proceedings

         On September 30, 2014, William Harrington, United States Trustee for Region One, commenced adversary proceedings against Zizza, requesting that she be denied discharge pursuant to 11 U.S.C. § 727. (J.A. 30-38); Complaint, United States Trustee v. Zizza, Ap. No. 14-04089 (Bankr. D. Mass. Sep. 30, 2014), ECF No. 1. As grounds, the United States Trustee asserted that Zizza had made repeated omissions in her bankruptcy filings, and that the record demonstrated both concealment of property under 11 U.S.C. § 727(a)(2), and fraudulent statements under 11 U.S.C. § 727(a)(4)(a), sufficient to warrant denial of discharge of Zizza's debt.

         On June 16, 2016, the Bankruptcy Judge presided over a trial in the adversary proceeding. (J.A. 361-511). Three witnesses testified-Zizza (represented by new counsel, Attorney David Baker), Attorney Rozzi, Zizza's attorney in the Chapter 13 proceedings, and Trustee Pappalardo. Twenty-six exhibits were admitted, including the transcript of the April 2011 creditors' meeting, and Zizza's filings in the Chapter 13 proceedings. (J.A. 514-515). The parties also stipulated to material facts. (J.A. 345-350). The stipulations and evidence at trial support the following chronology of events:

(1) On November 23, 2010, Zizza, an attorney, filed a lawsuit, Zizza v. Duffy, in Essex County Superior Court, seeking to recover damages for injuries Zizza allegedly sustained in a November 2007 car accident (the “Duffy Litigation”) (J.A. 347);
(2) On February 11, 2011, Zizza filed another lawsuit, Zizza v. Sapienza, also in Essex County Superior Court, seeking to recover damages for injuries Zizza allegedly sustained in a February 2008 car accident (the “Sapienza Litigation”) (J.A. 347);
(3) On February 25, 2011, the Essex County Superior Court entered an order of dismissal nisi in the Duffy Litigation for the case's failure to meet the Superior Court's $25, 000 jurisdictional threshold for damages (J.A. 347);
(4) On March 6, 2011, Zizza, through counsel, filed a voluntary Chapter 13 petition, which did not list as required any suits to which Zizza had been a party within the previous year and did not identify, inter alia, two accounts receivable in the aggregate amount of $7, 738.23, a judgment lien amounting to $20, 588.25, and an execution in the amount of $8, 037.25 (J.A. 346, 348)[3];
(5) On March 10, 2011, Zizza requested a hearing concerning the Essex County Superior Court's dismissal of the Duffy Litigation (J.A. 347); a hearing was granted and scheduled for April 12, 2011 (J.A. 347);
(6) On March 30, 2011, Zizza filed an emergency motion requesting that the Essex County Superior Court vacate its dismissal of the Duffy Litigation (J.A. 347);
(7) On April 8, 2011, Zizza (herself an attorney) testified at the creditors' meeting under oath, and was represented by Attorney Anthony Rozzi. (J.A. 43). Zizza affirmed that she both reviewed all her bankruptcy documents and had nothing to add. (J.A. 45). Attorney Rizzo corrected this statement and informed the Trustee that “there are lawsuits . . . that need to be added, ” along with a “personal injury claim.” (J.A. 45-46). Zizza then answered Trustee Pappalardo's inquiry as to whether the personal injury claim was “[f]or yourself” with a “Yes, ” and then proceeded to describe another lawsuit against her ex-husband in connection with child support, and a judicial lien against a client. (J.A. 46).[4] The parties then moved on to different topics.
(8) Later in the creditors' meeting, in response to Trustee Pappalardo's inquiry as to where Zizza would obtain a $20, 000 lump sum payment contemplated by her Chapter 13 plan, Zizza explained she “had several judgments right now, ” that she “anticipat[es] that one of those judgment would come through by the end of the plan, ” but that she had not listed these judgments in either her Schedule B or Schedule C forms filed in connection ...

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