IN THE XXX BANKRUPTCY COURT

for the SOUTHERN DISTRICT OF XXX

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SET ASIDE JUDGMENT AND INTERROGATORIES

XXXl &   

    XXX, PC

XXX

    Attorney for Plaintiff

TABLE OF CONTENTS

TABLE OF CONTENTS. 2

TABLE OF AUTHORITIES. 2

EVIDENCE SUBMITTED. 3

STATEMENT OF FACTS. 4

ARGUMENTS. 6

A.    THIS COURT HAS JURISDICTION TO COSNIDER STATE LAW CLAIMS IN DISCHARGEABILITY CASES. 7

B.    THE TRUSTEE OF HAS A DUTY TO ADMINISTER THE ESTATE RESPONSIBLY. 8

CONCLUSION.. 9

TABLE OF AUTHORITIES

Cases

XXX………………………………………………………………………… 7

COMES NOW the Defendant, IKECHUKWU OKORIE, pro se, and for his Memorandum of law in support of its Amended Motion to Set aside the Judgment and Interrogatories of Wells Fargo; and Motion to Compel the Trustee to Pay Wells Fargo from the Proceeds of the Sale of Real Property, and states as follows:

EVIDENCE SUBMITTED

In support of this motion, Defendant submits the following evidence as exhibits:

1. Exhibit 1a and b (loan settlement on the two properties sold to the benefit of Judgment lien by Wells Fargo)
2. Exhibit 2.  (E-mail from The Trustee Mrs. Kim stating that she wants to pay Wells Fargo in full).
3. Exhibit 3. (Letter to US Trustees office).
4. Exhibit 4. (Showing that Wells Fargo is getting monthly payments under Chapter 11).

STATEMENT OF FACTS

Wells Fargo after Defendant’s discharge has gone after Defendant’s wife Mrs. Vivian Okorie for the debt discharged in this bankruptcy with added interest of $115,000 and lawyer fees after getting $360,000 from the trustee on a dischargeable judgment lien.

Wells Fargo debt was a line of credit to Inland Family Practice.

Wells Fargo secured an uncontested judgment through fraud on the court in the circuit court of Forrest County.

Wells Fargo rolled that judgment to a building owned by Royal Oaks in Destin and also properties in Forrest County.

The judge in that case specifically told the lawyer Mr. Philip Hearn that represented Inland and Defendant to review the judgment with Defendant prior to signing but the lawyer did not do so. Not only did Mr. Hearn not do what the Judge instructed him to review with Defendant but waited until Wells Fargo rolled the judgment in on all the properties to let Defendant know.

Defendant did not know until he got service about the liens that a hearing was even done on the matter.

Mrs. Vivian did not receive service on that lawsuit for it was served on Defendant at the clinic at XXX. Since the line of credit was to Inland there was no need for Defendant to discuss that with anyone else. 

Wells Fargo deliberately served Defendant’s wife the motion for the interrogatories to a non-existent lawyer Mr. Hearn and at an address, which Defendant used 13 years ago. This was done to fraudulently get the court to sign off on the interrogatories.

Further, the hearing was done on zoom with no notification to Defendant and his wife.

Wells Fargo is currently being paid under Inland plan.

The Destin property was sold for $1.5MILLION by the bankruptcy trustee and 912 W. Pine Hattiesburg MS 39402 a mortgage sold for $204,000 making a total of $1.704Million.

The first bank loan which was a non-purchase loan was paid with the proceeds of these loans made to Inland.

Wells Fargo was paid $220,000 from the proceeds PLUS $140,000 FROM 912 W. Pine building.  Exhibit 1a and b (loan settlement on the two properties sold to the benefit of Judgment lien by XXX)

Wells Fargo did not want to get more money from the Trustee because they have been charging interest on the judgment to the tune of $115,000 plus additional per diem $35/day since July, XXX.

Majority of these interests was added while this case was in bankruptcy.

There is still $261,888 left over from the sale of these two properties.

During the negotiations for the sale, the Trustee stated that she was doing us (Defendant and his wife) a favor to sell the property and pay XXXin full. See Exhibit 2.  (e-mail from The Trustee Mrs. Kim stating that she wants to pay XXX in full).

After the sale Defendant and his wife do not know where the remaining of the money has gone. Defendant has asked the US Trustee’s office to see how it is possible that a secured creditor could get less on a secured security. This money was enough to satisfy Wells Fargo’s judgment if it was legitimately applied as promised by the trustee. Exhibit 3. (Letter to US Trustees office)

Inland is in Chapter 11 with a confirmed plan and Wells Fargo is getting monthly payments on that plan.   Exhibit 4

Mrs. Vivian did not object to any sale of Defendant’s marital properties in this bankruptcy because the trustee said her aim is to pay off Wells Fargo since Mrs. Vivian was a guarantor to their loans.

Majority of the debt in this bankruptcy were loan made to Inland Family Practice that Defendant personally guaranteed. None of the building the Trustee has sold was purchased by loan money mortgage.

Wells Fargo’s continued harassment and intimidation tactics on debt collection as to this bankruptcy case, and is nothing but deplorable.

ARGUMENTS

A.    THIS COURT HAS JURISDICTION TO COSNIDER STATE LAW CLAIMS IN DISCHARGEABILITY CASES

A bankruptcy court’s has authority to fully adjudge state-law claims in dischargeability actions. Stern v. Marshall, 564 U.S. 462, 479-80 (2011). Further, bankruptcy courts have both subject matter jurisdiction and the constitutional authority to liquidate state-law claims as part of the adjudication of any dischargeability issue. See Saenz v. Gomez (In re Saenz), No. 17-41004, 2018 WL 3746810 (5th Cir. Aug. XXX); Countrywide Home Loans, Inc. v. Cowin (In re Cowin), 492 B.R. 858, 887 (Bankr. S.D. Tex. 2013) (finding that Stern v. Marshall, 564 U.S. 462, 479-80 (20XX), left intact a bankruptcy court’s authority to fully adjudge state-law claims in dischargeability actions).

Defendant contends that Plaintiff’s conduct in the State Court case amounted to unreasonable and vexatious behavior. And for that reason, this Honorable Court should frown upon such behavior. Unreasonable and vexatious behavior requires “evidence of bad faith, improper motive, or reckless disregard of the duty owed to the court.” Edwards v. Gen. Motors Corp., 153 F.3d 242, 246 (5th Cir. 19XX); see also In re Osborne, 375 B.R. 216, 224-25 (M.D. La. 20XXX) (quotations omitted) (“Unreasonable and vexatious conduct is harassing or annoying, or evinces the intentional or reckless pursuit of a claim, defense or position that is or should be known by the lawyer to be unwarranted in fact or law.”).

Defendant avers that throughout the case at the State Court, Defendant’s wife, Mrs. Vivian Okorie, was never served and was never notified of the proceedings at the Court. Notably, Plaintiff (Wells Fargo) served Mrs. Vivian on 39 Pleasant Pond Lane, Hattiesburg MS 39402, which address the Defendants left 13 years ago. Further, Wells Fargo had a court hearing on zoom without notifying the Defendant. In that regard, Defendant contends that failure of the said Plaintiff to conduct proper service on Defendant and Mrs. Vivian Okorie; failure to provide sufficient notice; and relying on the judgment obtained by fraud, amounted to unreasonable and vexatious behavior. This Court should therefore vacate and/or fail to recognize and/or enforce the State Court judgment.

B.     THE TRUSTEE OF HAS A DUTY TO ADMINISTER THE ESTATE RESPONSIBLY

A trustee’s primary responsibility is to administer the estate on behalf of the creditors in a legally responsible manner. In re Vogt, 250 B.R. 250, 259 (Bankr. M.D. La. 2000).

Trustees, as fiduciaries, need to be held to account. To say that a man is a fiduciary only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? In what respect has he failed to discharge these obligations? And what are the consequences of his deviation from duty? SEC v. Chenery Corp., 318 U.S. 80, 85-86, 63 S.Ct. 454, 458, 87 L.Ed. 626 (1943). The trustee and his representatives are officers of the court. Their fiduciary duty is to administer the estate. In re J.M. Wells, Inc., 575 F.2d 329, 331 (1st Cir. 1978). They must be totally objective, and must never perform as self-serving parties. In re Redman, 69 B.R. 27, 29 (Bkr.D.Hawaii 1986). A bankruptcy court’s duties include supervising trustees “in their efforts on behalf of the estate and creditors”. State Financial Service, Inc. v. Collector of Revenue, 565 F.2d 161 (5th Cir. 1977).

According to the Supreme Court, “a trusteeship is serious business and is not to be undertaken lightly. . . .” XXX”. In Mosser, the Court recognized that a trustee may derive some qualified immunity from the “difficult business judgments” he is called upon to make. However, that immunity will not protect the trustee from personal liability for negligent or wilful acts. Id. at 273-74. In interpreting Mosser, the circuit courts are split regarding the imposition of personal liability for acts of negligence. See Carter v. Schott (In re Carter Paper Co.), 220 B.R. 276, 293-94 (Bankr.M.D.La. 1998) (discussing in detail the split in circuits); see also Norton Bankruptcy Law and Practice 2d § 79:21 p. 79-45 n. 44.

In the instant action, Defendant contends that the Trustee has a fiduciary duty to conduct himself responsibly. Accordingly, the Trustee should use the proceeds of the sale to settle the debt as stated by Defendant. Besides, this Court would rightly hold the Trsutee personally liable for a breach of the said duty by failing to carry out his duties accordingly. Defendant therefore moves this Court to Compel Trustee to Pay Wells Fargo from the Proceeds of the Sale of Real Property.

CONCLUSION

In light of the foregoing, Defendant prays this Honorable Court set up a hearing to determine where the r,est of the money from the sale of the property is going; and also to set aside the judgment on Mrs. Vivian. Defendant also prays for any other relief this Court deems just. 

Dated: _________________

Respectfully submitted,

CERTFICIATE OF SERVICE

I Ikechukwu Okorie certify that on this date 11/01/XXX, I mailed, via United States Mail, postage prepaid, email This document to the following counsel on record:

XXX

XXX

XXX                

Respectfully submitted,