Peplinski v. Whitaker et al

OCR transcription for search; preserved printed pages are authoritative

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO

Inre. ROBERT WHITAKER and
ELAY NE G. MEDINA-WHITAKER Case No. 13-11395

Debtor.

STANLEY Z. PEPLINKSKI.
Plaintiff,
V. Adv. No. 13-01068

ROBERT WHITAKER and
ELAY NE 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.

INFORMATION
GP

2
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.
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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. 7012.1 Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.
2000).
1 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).
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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,
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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)
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(embezzlement and larceny).2 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)).
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
2 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.
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whom such debt is owed, … the court determines such debt to be excepted from discharge)
(emphasis added).3 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)).
The Plaintiff also appears to object to the Defendants receiving a discharge under 11
U.S.C. § 727(a)(4).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).
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.
3 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).
4 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.
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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.5 See Fed.R.Bankr.P. 1017(e) (The court may dismiss … an individual debtor‟s case
5 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.
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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).
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
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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
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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
Date entered on docket: March 28, 2014
COPY TO:
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Peter F Staiti
7400 Montgomery Blvd., Ste. 39
Albuquerque, NM 87109
Stanley Z. Peplinski
11220 Country Club DR. NE
Albuquerque, NM 87111
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g EXHIBIT
: ins ley
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IN THE UNITED STATES BANKRUPTCY COURT /O p
DISTRICT OF NEW MEXICO ie fi 4 4: I
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INRE ME ye
Robert Whitaker Case No: 13-11395-j7
Elayne G. Medina- Whitaker,
Debtors

Stanley Z. Peplinski, Adversary No, 13-1068 J

Plaintiff, Creditor
VS.
Robert Whitaker

Elayne G. Medina-Whitaker,
Defendants

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 | 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 USC §727 objecting to Debtor’s Chapter 7
discharge; to determine the dischargeability of debt to Plaintiff; and is filed in accordance with Part VI,

Adversarial Proceedings, of the Federal Rules of Bankruptcy Procedures regarding jurisdiction. This

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Court has jurisdiction over these proceedings, the subject matter, personne! 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:

o, CE cantesinnimepeinisiseminniminninentvinmentemmniiimiamiiinn

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 B1 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

>, timiabittinal pele - : snanstiniitmiemen eo oceans
el
—_ - . -

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petitio a
would stop
9.

guments, and Debtors never actually reviewed & si

In re Tran 427 BRS

the client. If the certification is false, the @prney is subject to g@nctions pursuant to Rule 9011.
1. In re Brown, 328 BR. 556, 559 (Bic ty N.D.Cal.2905). In this case, the negligence which caused

the unsigned schedules to be filed was gross neg. beng’. A camplete and honest listing of all assets is at

the very heart of bankrupicy relief. A debtor mcannol, under any circumstances, be allowed fo

Miemonstrating that he never actually signed

12,
bankruptcy case since debtor een signed by debtor... Bankruptcy
Which should only be undertaken by the ¥ dividual... “Federal Rule of
05(a)(2) provides that “[a] document filed by electrOgic means in compliance

is a very personal actiog’

hn must comply with local bankruptcy rule which specifically states that eacn"pgtition filed

clude an unsworn declaration with signatures of all debtors."

In_re Moynahan, Not Reported in B.R., 2008 WL 141585, Bkrtcy.N.D.Ohio,2008 (Januar! |,

me n.

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‘ ‘ simsiahinbisheimiiminabciia sitinianta —_
Aicnimmlaneanitadinani ' ; seins . seeaite _— -

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 [9A

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 .

Mfffna is not named anywhere on

picy Court has no

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 cath or account or (B) presented or used a false claim”.

ahan, but the attached petition PDF was for Debtor Shawn L, Bay, for

be corrected

opendtgr Thomas J. M
whom anothéegse has already been separately commenced. This is not a problem thal
sorrect petition PDF, because the filing of the petition by gefférson is the statutory
ofa case. 11 U.S.C. § 30(a). Rather, this p

r Mr. Moynahan in PDF %

by amendment of the

gffem necessitates the opening

act that effects commencemen

im. The within case must necessarily

of a new case with the correct petiitt

.. a debtor

who fijgs ast 8

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”

es she had used was done with the kind of ... fraudulent awareness required by the statute.
Analogous to_In_re Lewis 51 B.R. 353 Bkrtcy, N.Y., 1985 (27 June 1985) where Debto
pyovisions
Prity of the

fetition, stating

20.

petition (her deceased mother's name to obtain immediate relief afforded by automatic stay
of 11 US.

bankruptcy prom

M5362. “The court dismissed debtor’s entire case in order to preserve the in
3.” The Court disallowed Debtor's attorney motion to amend the
fa mere matter of
the Bankrupicy Code

her to escape all of its

“Accuracy in the Qption of a bankruptcy petition is of substantive importance —
jorm...Permitting (DeBgr) to amend her petition would afford her the protection
retroactive to the date & which she filed her petition, while permitting

Debtor's} creditors resulting

responsibilities during that t&yge...Amendment would impair the rights off

fromthe automatic stay...Debto haseessentially committed blatant fyflud on the court...in accordance
with...18 U.S.C. $3057 the Clerk o,

Order along with copies of all pape

e Bankruptcy Court shall trafemit a copy of the this Decision and
to the U.S. Attorney...The court has

contained in debtors fife

committed a yfolation of 18 U.S.C. §152 knowingly and.

*éasonable grounds to believe (Debtor)
fraudulently making a false declaration, certi{Mgtion, ver fication, or siatement under penalty of perjury”
21. 18 U.S.C. §3057(a) “Any judge, receiverNgr {

any violation under Chapter 9 of this title or otherffa

tee having reasonable grounds for believing that
of the United States relating to insolvent debtors,
receiverships, or reorganization plans has bg ed, or that an investigation should be had in

connection therewith, shall report to the ap tates Attorney all the facts & circumstances

Count 3; Joint We Filing is Improper andShould be Denied

22, Plaintiff alleges that Yebtors have not provided any proof that tgy are married (Exhibits >>>>
from Bernalillo and Valeygfia County Clerk); that Debtors are not actually Married but just co-habitating;
and that actions of Dejfors even if they were married, is more akin to single Nadividuals that a married
couple. Therefore int Bankruptcy petition does not meet the criteria for a joint p&dtion, is inappropriate
and should be dgflied by this Court.

11 U.S.C. §762 states “A joint case under a chapter of this litle is commenced by th&iling with the
bankrupiff court of a single petition under such chapter by an individual that may be a-debio&ynder such
chapifr and such individual's spouse. The commencement of a joint case under a chapter of Mis lille

cofstitules an order for relief under such chapter...Afier the commencement of a joint case, the pur!

ra o

Fe

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consen!*Factors thai will be relevant in the court's determination include the extent of jgintly held
property arfgthe amount of jointly-owned debts”

23. Plainti% alleges that, since Voluntary Bankruptcy Petition, Forms and Schedul & are not signed
by either Debtors&here is no record that one spouse. consented to the other spous "to commence this
Chapter 7 filing. Th@yefore, this Court should be dismiss with prejudice the Joint Pankruptcy petition. In
re Wenk 296 B.R. 719% Bkrtcy, E.D.Va., 2002 (16 July 2002) “Debtor's sift ature indicates debtor's

consent to the bankruptey%Jing, consent which can only be given by the flebtor... The court dismissed
bankruptcy case since deblor 'Mgtiorney filed a petition that had nat beenfSigned by debtor.”

24. Plaintiff alleges that Debs have not met 1! U.S.C. §302(% that joint filing is limited only to
married spouses; and barring proof Smarriage, Court should defy and dismiss with prejudice the joint

bankruptcy petition. _In_ re Coles 14 BaR. § Bkrtcy, Pa., 199 d 31 Aug 1981) “motion to consolidate.

cases for Debtors who were not marriedpui had lived fogether for three years is denied; for the
consolidation of cases treats the consolidate f one and may affect the substantive rights of
creditor... Because the debtors are not spouses, the&g precluded from filing a joint petition...”

25. Plaintiff avers that Robert Whitaker was pi :
knowS County Clerk‘s recording requirements & set

ously married and recorded his marriage to Sandra

J. Kosinski. Exhibit >>>; clearly indicating yf
precedence for recording a marriage certlfigg fe. If Debtors Were married, they would have recorded their

marriage certificate. Absence of mar faze certificate, Debtdtg are not married; are fraudulently using

married aliases like Mr. & Mrs. Robért Whitaker or Elayne G. Medina-Whitaker; and are fraudulently
claiming bankruptcy status as Join
26. Plaintiff alleges femalg’Debtor has consistently over her entir&life, and even today, uses her
unreported maiden name Elgfne Gloria Medina a.k.a. Elaine G. Medina and ¥

fmen than a married Joint Debtor; on official goverf gent identification cards,

aine Medina; and as such is

acting more as a single
social security adminjftration (SSA) records, criminal cases, employment files, ff gncial institutions and

day-to-day busines# transactions

ords:

2 Unofficial compilation of the U.S. Code as of Jan. 4, 2012 http:/Avww. law. cornell edi‘uscode/useprint himl

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licdusee."" NMSA §66-5-20 “In the event ...af name change, the person to whom the permiffor

of a

B division

driver™license was issued ... obtain a replacement’ NMSA §66-5-22 “When the nayfe

licensee iNghanged by marriage or otherwise... the person shall, within ten days, notify t
of the new adNgess” NMSA §66-5-24 "(A) The division is authorized to cancel... er § license
wif the licensee P&fed to give the required or correct information in his application
fraud” and (B) Upo
division. NMSA §&¢-5-38 “Making false affidavit is perjury... makefany false affidavit, or

erms of the Motor Vehicle

committed any
such cancellation, the licensee must surrender the licengf so canceled to the
knowingly swears or affirms¥glsely to any matter or thing required by thg
Code [66-1-1 NMSA 1978] to &

be punishable by fine or imprisonm®y! as other persons committinggperjury are punishable. “

ry and upon conviction shall
b. Law enforcement departments and crirt ale Debtor only by her legal name,

maiden name Elaine G. Medina a.k.a. ElaityMedina. Exhj
c. All her SSA records, her SSN card and SSA‘enefits.

£ Debtor never submitted a form SS-5 because

Fxhibits >>>> Since SSA still uses female
Debtor's maiden name, it is further proof that feThg
there was no marriage certificate that could be af dche§, Barring marriage certificate the SSA would
consider the SS-5 as incomplete and would ngfaccept grm nor change female Debtors name.

d. Separate annual income ~$25K- $29K in pér maiden name. 36 A Statement Exhibit

e. She files all IRS and NM tax returns gf head of household; wi P Ngo declaration of spouse. Exhibits
>>>> SSA links? directly to IRS gécords, also in female Debtors majden name

f. ABQ Academy financial aid aflication filed by Debtors on behalf oftheir daughter list parents as
Robert C, Whitaker and Elayfe G. Medina; the Debtors unmarried names. bits

pg. Female Debtor claims bfing unmarried and used her maiden name to file fo&gnd get approval for
food stamps and N edicaid for herself and her daughter Mariah . Exhibits >>>\gru >>>

h. Female Debtor ugfi maiden name to apply for and receive NM unemployment compe sation Exhbits

i. Patient in Blugross BlueShield (BC/BS) medical insurance and hospital bills Exhibit >>

j. She maintgfhs unreported bank accounts, separate from male Debtor, Bank of Albuquerque\gcount

5 htto:/Avww.socialsecurity zov/employer/GuideS01.do

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aindd HERTS Eo eter ore sutiaiaweeauedevuers coewiene oa wm OR UPtCMNETS FUT PLAT MERE CK
phone service (505) a Exhibit 40 ; Electric & gas utilities Exhibit 39;Circuit City a
ExNbit 41;:Secured & unsecured loans Exhibits; Credit card and applications Exhibit 36 ;

m. She ha

n, Even adver

ife and accidental death insurance policies in her maiden name Exhibit !
ers recognized female Debtor by her maiden name. Exhibit
, watches, decorative

0. That, except fora few token gifts, female Debtor purchased all of her jewe

ff, paintings in her sole and

pieces, clothes & shOgs, furniture, furnishings, household items, area r

separate name; has full c@mrols of her assets, including their disposig6n, independent of male Debtor.
27.
all manner of business and acting moMas a single man than
ation (SSA) ty

masse, financial accounts from female debtor.

agfe and unreported aliases to conduct
atried debtors: on official government

fords, employment files, financial institutions;

identification cards, social security adminis

day-to-day business matters; has separate inco

a. His State Employee Credit Union (SECU) acp6Uhy QB solely in his name Exhibits

b. Hehas income independent of female Qgdtor's and Rigs Separate tax returns, Exhibits >>>

c. He purchased and registers all 6 vey#les valued ~$29K Tis name or in concert with another family
member; but nothing is registgyéd jointly with female Debtor® Exhibits >>>>

d. He purchased all the hangf4nd power tools, workshop equipment garden tools, ladders; automotive
tools; storage equipgf€nt; stereo equipment, sound system , vide®recorders, cameras, digital
records/players ag computers. )

e. Except for ag@w token gifts, male Debtor purchased all his own jewelry, watche%clothes and shoes.

f. Bach Dg@tor has their own retirement plans, life insurance & accidental death inStyance; and has
cog#lete contro! of their assets independent of the other Debtor

23 Plaintiff alleges each Debtor brought and takes away luxury items from their separate live&before

tat ge . +
L? ew! a Fa ade ” LT i> Px a te cs at fa a en eo Ven

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. Fora 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 ....

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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 Mediria- Whitaker Elane Montoya
Elaine G. Medina Elayne G. Medina- Whitaker Elayne Montoya-Medina
Elayne G. Medina Elayne Medina- Whitaker Beatrice Medina
Elaine Medina Elayne Medina Whitaker Walter J. Florence & Cheryl B. Florence

Elayne Medina Elayne Whitaker-Medina

state agert all other names (i.e. aliases) used by the debtor in the last 8 years, including married, mgi@en

information you ha

b. Instruction #8: “Jncl he debtor's full name, all other names used withightight years before filing

the past eight years, including marriedpy aiden, and trade nayfés, shall be included in the petition. .

32. Imre Scott, 77 B.R. 636 Bankruptcy, N.UNghio, 17 Sey 987 the Court stated that :

a. “The information provided by a debtor in ... pe iouffhould not only be complete but truthful so that
the Court and other parties in interest can reasg abi egly upon the data contained therein. .

b. On the subject of fraud, the Court stated peat: “There is Wezeneral rule for determining what facts
will constitute fraud, but it is to be Joygl or not according to th&pecial facts of each particular case.
it is rarely susceptible of direct gfoof, but must ordinarily be establMyed by circumstantial evidence

and legitimate inferences arjfing there from, which taken as a whole, wilRyow the fraudulent intent

or purpose with which yf party acted.” .
c, On the subject of Jfll disclosure of aliases and addresses, the Court stated that: ince the debtor
indicated in hf filing the she had not used, or was not known by, any other names aM@addresses
within thgfRix (6) years immediately preceding the filing of her petition, evidences a clear (fepi on
her pit, inter alia, to conceal her identity to the Court and the Creditors. Such conduct on her po

eT v9 OU e eA ErCcUy tu ane

? htto://www.caeb.uscourts.zov/documents/ Forms/MISC/Eorms_ Instructions.pdf

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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 Debtors UNM Diploma and transcripts Exhibits __

is petition. 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 BI 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.

age 7 . ry 2 * 1 Q
WATT = = ga r. free cs Ey Le rst cs rt ra 50 a! Lf ix rheee) 2 or) apres Al ee in

Elaine G. Milbag ‘og driver's

why female Debtor did not list aliases o

commenced since Elayne G. Medina-Whj h the name as it appears on identification

39. Plaintiff alleges Debtors committed false oath, fraud & concealment on Schedule B L24 by not
providing, “Customer lists and other compilations containing PII 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 ialisaaimbsintmisadjetitesiaiiicalitithiiliiiciiiteidiiieiiiaAiaiiniiiinay

Rinsiagagag She committed false oath, concealment and fraud when female Debtor failed to disclose

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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,,,

4\, Plaintiff alleges that Debtors. committed bad faith, false oath, concealment, embezzlement, failure
to maintain records, destruction of records and fraud in this Bankruptcy case; @aemmiRRGiiallip

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.

rusted, with fraudulent intent to deprive the

gied rented viola from the Robertson & Sons

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hiinicimeniihimonminamominnnmneteiony.” = And female Debtor
violated U.S.C. §727(a)(3) and U.S.C. §727(a)(4)(D)

= o r or =

g her bankruptcy petition was sufficient to support charge and convicligg

bankruptey fraud claim™*tgg failure to “identify creditors of different ela Separate schedules. In

fo file for bankruptcy she could not then represent under penalty of perjury

ia

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, ¢ppeeeeelairerwelae
Hemnainictensepmiitenisienetintistitenianintennintenniteeimienteimnuasinnnnidabtimannniiaanialialds Debtor's
own records and exhibits provide prima fascia evidence of fraud. Exhibits>>

ent using a variant of her maiden name Elayne G. Medina or Elayne Medina; and jg

associated Mwgecards for purportedly providing personal care to Joe Montoya. As agg@ample female
Debtor had a fullt
Mr. Montoya. Other examP
b. Committed IRS & NM tax fraud"

reporting income from Personal Care Manag@agg

job at a doctor's office while concurrently. billing Mggg@ald for personal care to
ords. Exhbits

aiden name on tax returns and not

of fraud can be gleamed from Debtg
evasion by using gg
Rnibits

c. Federal Food Stamp Program fraud by usig Meo mane, claiming no husband & falsifying her

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Medicaid fraud by both the female DebtoT'amg

48. Plaintiff alleges that there is incopsjgnem®} Semgeatrice Medina Medicaid records and female

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. diiseiasdihéienbialaiiaienletdientten
M H rn H Sthe DF tel BA ds a bec. e coves eh TY bat oo

bioMjcal mother. | Female Debtor usurp the name and credit of Beatrice Medina to obtain cashyg

employrtigt &wages; obtain credit, services and products using the unreported aliases Beatrigg
and Bea Medi. From Debtors own records we gleam that:
ceived $500 kickback from GMC using Beatrice Exhibit

a. Female Debto®
b. Female Debtor rec@yyed Medicaid wages for purportedly taking care of Beatri

edina Exhibit
c. Female Debtor received®ytility service using Beatrice Medina Exhibit
d. Female Debtor received phdRg service using Beatrice Medina Exhiby
kenters insurance using BeatrigfMedina Exhibit
) ice using Beatrice Jfedina Exhibit

edina committee, in the 2007-08 Medicaid -

e.° Debtors received automobile and
f. Debtors received DirecTV Satellite sé
50e Plaintiff alleges that female Debtor @

fraud, when female debtors using unreported @ig@es submitted false application and employment

timecards to New Mexico Consumer Direct 3 are, LLC; which were subsequently paid by

Medicaid. As example during the week male Debtor billed Medicaid for providing
on vacation in Disneyland using

dina. Exhibits.

services to Beatrice Medina, but sg@fe week female Debtor ya

unreported Southwest Tickets pug/fased using maiden name Elaine
51, Plaintiff brings to tj

Federal HIPA and tag#ass on this information to the U.S, Attorney a

attention of this Court that female Debtor be in violation of state and

Medicaid Program for

investigation. Allg#Joe Montoya’s and Beatrice Medina’s Medicaid records are FARA protected. Debtor

HIPA violatigs gords instead of

include (a) Debtor being in possession of Joe Montoya’s Medicaid

retainingg@€cords at her employer place of business; (b) abandoning & losing control of Medtgid records

forgfyone to pick the documents, to disclose that the individuals was getting Medicaid; and th®gype &

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§2. 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 PI 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 Cable and Satellite services.

Count §: 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 % 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.

$7. 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

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... obtain a replacement”

2 “Whenever a person,... moves from the address named in the yg@ffed license... the

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__s«.-s«US.C. §727(aX(7) discharge shall be denied if “the debtor has
commitled any act specified in §(2), (3), (4), (5). or (6) of this subsection, on or within I year before the
date of the filing of the petition” U.S.C. §727(a)(4)(A) discharge shall be denied if “the debior
knowingly and fraudulently, in or in connection with the case made a false oath or account”

1

Exhibits showing female Debtor maRing,, frawals from male Debtor"s State Employees

Credit Union account (aig? 000; she pent false odtMeely claiming she made night deposits at KFCU
‘(Exhibit _) and laid bigs at KFCU had lost rent deposif_gubsequent KFCU investigations
* (Exhibit peetificed null results indicating female debtor made false oatiwad embezzled the funds.

” Pepe’ Debtor's actions meet the definition of criminal intent, because the embeamagent were

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| aincided twice each month when male Debtor's employment direct deposit was made; and therg gee ho
excuse foPkexactions NMSA §30-16-8(A) “embezzlement consists of a person conyge@Mg to person's
own use anything of Vitis, with which the person has been entrusted, wilhgg@MQulent intent to deprive the
owner thereof." Blacks Law Detignary 9th Edition definggs#€fiminal intent” as: intent to commit an
actus reus without any justification, excuse Omalige@cfense. Also termed felonious intent.” State v.
Austin 80 N.M. 748, 461 P.2d 230 N.Mgpegf. 1969, September 19, 1969 “Criminal intent” is more than

“intentional” taking; rathergéPIs a mental state, a conscious Wremggoing. NMSA §30-16-8(E)

“Whoever commits gg@bezziement when the value of the thing embezzled or COmwazted is over two
thousand dred dollars (32,500) but not more than twenty thousand dollars ($20,000) is Bwilty of a

cor ce [el Any en pentane

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)
> wagations without paying with the intent to cheat or defraud the owner or person supgifing th
ervice, food, enléPiiagent or accommodations.’ NMSA §30-16-16(C)(4) " Whogyg@@ommits Jalsel
bbtaining services or accomnf@iadigns when the value of the sggyi@@" food, entertainment o
accommodations furnished is more than two Troweagd fivggys@@red dollars ($2,500) but not more tha
twenty thousand dollars ($20,000) is guilty ofgei¥O degree Jereay” —(b) Debtors criminally obtaine
water, sewer and trash utilities froma WUA without paying over $400 [oMteagg services; in violatio:
bf criminal statute yo830-16-16(A) NMSA §30-16-16(C)(4) “Whoever commits falteie obtainin

Ee atl hate at AEF ol ee Seashell Sleds £ olencacones ” ” “

al ‘niitacliadiasheecdadidliitintimiiapiitiniainmemes:, The Plaintiff ended up paying

Debtor's unpaid balance to prevent ABCWUA from placing a lien against his rental property.

ad. 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. |

‘
4 ge + . >
a bs bare Bs b alata er a ateha

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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. Deirntitineesntenrielnaearerienineriatiine ae naieimbbibins

NS NS ET: MeeVee PTT ere Ti PCS VOT HO Ver
i Nid inbdieStaitiedossanot 1 allies
gitamney i nebaliaiipiaiGilee Bute dh ten Qbaibiedoscmbbdbnt acinar . 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.

Pe ee a rt

ros .
ett dl sof da a ae Ms rs pa ld

etfO~Geur,, other than as part of a premeditated plan to i a tuality of filing for
hapter-7 discharge’? 4nd what better way to achieygesl fraudulent goals, than to hire

Bankruptcy attorney as Metro Court cod Cie A eeeMetro Court case and then claim insolvency.

age which resulted in thelr filing a

65, Plaintiff alleges then Debtors exgggs@@ their premeditated

[awe Chapter 7 pg meant to assure that

fn; in direct violation of Bankruptcy laws that’

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 | 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. iinlelesteceeicaladelasindenenjuisivnniiisllig

%8 Identifying Bankruptey Fraud by Joe G, Brown, et. al. htto://www.crfonline.oreg/ore/pdf/refil pdf

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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 1GKDT13W812114904; 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 Chevy 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. innvechonisbinlishrdsd-Bierter Geert

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

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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..." Debtors hiding $2300 cash is concealment failure to deliver $2300 to Trustee &
pocketing the cash is 4" degree felony larceny. WMSt—§30-hGul(A)Larcemcausisis of the sledbsiie

edt . ;
ILE Oe Fat Ore pe bts oo bs as

b. $6600 cash that female embezzled instead of paying rent. Exhibit Transaction Detail Report for
Debtor's savings account MMMM showing large sums of cash withdrawal months just prior to

filing Bankruptey; 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

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 -$55K 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 PI! provided to debtors in connection with obtaining a product or

service for personal, family & household"

d. .~$85,000-in-unreperted—financialfrem-ADQ—heademythatbebiors-received whieh —paideltll
BPrrsicate education from grades 7-12 over the six. year period 2004-2010. Ms >>>
- st pad misleading statements when they disclosed thg Gniy had no othe
jeash, checking interest or personal prope tyeafany other king & to disclose ABQ Academy as 4
- provider of financial aid is violation of Schggas snot 4.failure to provide “Customer lists ond
nage Provided to debtars in conneche Pith obtaining a product oi
pers ‘amily & household" Per ABQ Academy rules, the family beaTSteg,brunt o

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dollars per year.

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. ay ——@eeeegeD

evterterrenerreest fomameviestiant ” gnfudsatab stati Gitachetnntbiaa wr

serene -ereneioniniemennensininnnimigipaganeek, NOt turning over the ~$400 NM Gas Co.

refund to the Trustee. N@ubGiwhwmjedheaCihalemaldeladitaditadtihiitiiiia itsladiiniidddalinlelitialidditaulila diliniMMMCe lay
a promcimoniaiifipeetiasenhiciistial scateninatalaasnscleeaintenbannarinieliritacpai
ees 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 #@QQMMBR4275 from Farmers Insurance Group (Exhibit __—_—s«dy;:-: Debtors
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.
a me
PiyeciotiarentG60;p-orbeoienmuiliyned ‘nad

g. That Plaintiff received unreported income and goods from operating a child care facility at Plaintiff's

rental property for their great grandnicce @iesendenisheinbneiiompieteenteibertereinnenttertiatianeerenstrre raga
Rp eee eetendeso 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, | and J; which have a direct impact on “means test”.

Count 10: Debtors False Oath & Fraud Re Remainder of Petition Forms & Schedules

77, Ref Bl Pg 1 of 46: Plaintiff alleges that Debtor's estimated asset value $0-550K is false; more
accurate estimate is $1G0K - $150K

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78. Bl Pg2 of 46: Plaintiff alleges that checkmarks indicating Exhibit D completed and signed by mate
and female Debtors is faise. Actually neither Debtor did signed his Exhibit D.

Bly with 180 day deadline by reviewing
date/time of 23 Aug 2013 2:34PM

petition forms. Court can confirm tha

the filed Certificate of Counseling whi

is automatic

eSirt Rules if Debtors do not comply with the 180day deadline the
80. Form 6 Pg 9 of 46: Under the block entitled spe 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 gath
Bankruptcy fraud and concealment when they did not disclose interest in various real properties.
enicditisdainiencdininasnpapnepetipnsiaimheamonnnnieasmiguoiag. Plaintiff alleges Debtors

have interest in the real property belonging to: male Debtor's Parents 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.” 1

, imehemnierspiterini ‘ ; samianh smevintesslonmbivenineiensatanafetis

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83. Form 61 Schedule J- 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 “[fmthencdebioxangaiclonmpnmnnnteh da .

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; past 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

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987. Plaintiff-alteges-that over-the-pastdeeade-Bebtors-fited-fraucutenttme returns, wit ferty atten
to byade taxes; and provided misleading information on petition regarding their tax debt. There A
Debtofs, past due taxes are not dischargeable debts and should not be used in Debtors means Jest or
anywhere bankruptcy consideration of dischargability of other debts. Recommend instead tyat Court
view frauduldnt tax filings as other examples of Debtor false oath. If Debtors attempted to gtceive IRS
and NM taxation Departments, how readily would Debtors attempt to deceive Bankruptcy G Burt?
88. Section s23@ (INC) provides that debts for taxes relating to fraudulent returnsggér for which the
debtor “willfully attempted in any manner to evade or defeat such tax” are nondischgfigeable. Cassidy v.
Commissioner, 814 F.2d any (7th Cir. 1987). And Sections 26 U.S.C. 7201-7203 Eals with tax fraud
89, Plaintiff alleges, based, j “ part on IRS tax returns, that Debtors are not #arried. If Debtors claim
to be married then they filed stparate, fraudulent, Federal and NM tax g@turns for years 2003-2009
(Exhibits ss thru: __—_+) and on a Npeit corresponding application 4ffinancial aid request at ABQ
Academy; and possibly on their 201 0-20. [3 returns.
a, Exhibits >> and >> 2009 and 2007 Debtors filed separate tayffeturns. Female Debtor lists status as
Head of Household using unreported utharied alias Elafne G. Medina, which is variant of her}
maiden name Elaine G. Medina. And corréspondinglf male Debtor should have filed returns as}
Single. Instead male Debtor files using ee, ias Robert C. Whitaker; status married filing},
separately, with purported spouse named Elayne Madina. If Debtors were married female spouse's
» name would have been something like Elayng hitak® . her filing status would have to be married}
filing separately, not as head of householgg The 2009 & 2Q07 returns show Debtors are not married; }
they filed fraudulent separate returns tggake advantage ofa to ee tax bracket; and they avoided taxes.
b. -Exhibits >> and >> 2008 Debtorsf#iled separate tax return. Fegale Debtor lists status as Head of
Household using unreported ungfarried alias Elayne G. Medina. AN correspondingly, male Debtor
should have filed returns af Single with | exemption. Instead mal 4 Debtor files returns using
-unreported alias Robert Y Whitaker filing status married filing separate % a laiming 2 exemptions,
one for self and anothff for purported spouse named Elayne Medina. 2008 tz veturns show Debtors
are not married; yey falsely claimed more exemptions then they were entitled {0 and they used
wrong filing sffus & lower tax bracket to fraudulently avoid paying taxes. \
c. Exhibits >yMand >> 2006 Debtors filed separate tax returns, Female Debtor lists stat 4,as Head of

Househd using unreported alias Elayne MedinaWhitaker and claiming 2 exemptions, of a for self]

andffne for daughter. But male Debtor using unreported alias Robert C. Whitaker files as rAgrrie. |

fling jointly, claims 2 exemptions; one for self and one for purported spouse named Elayne Media.

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P FORE pee ptahtisedie-lOWertR-OPRONCELG=F FAUT Hit PRY Gide PAREN aNeS yore arrere-eentere ony -
4 fi ctitious surname Medina Whitaker. ;

d. Exfigits >> and >> 2005 Debtors filed separate tax returns. Form 8879 shows female De Bor fi iling
under he unreported alias Elayne Medina; and presume from pattern of filing usit gf Gatus Head of
Household. “But male Debtor using unreported alias Robert C. Whitaker ; as married filing
separately; purp® Hed spouse named Elayne Medina, which is evidenced by er SSN on the tax form.
2005 tax returns shoWDebtors are not married; they falsely claimed mgf exemptions then they were
entitled to; and they used “wrong filing status & lower tax bracket toffaudulently avoid paying taxes.

e. Exhibits >> and >> 2004 Debjors filed separate tax returns. Jy male Debtor lists status as “Head of
Household” using unreported alia€layne G. Medina, whigifis an alias of her maiden name Elaine G.
Medina. And male Debtor using unfeported alias [}é ftor Robert C. Whitaker files as Single, no

spouse is named, and no spouse SSN is [ed onghe form. Clearly the 2004 IRS tax returns show

Debtors are not married; may be the closest at Debtors have yet to submitting an accurate filing;
and should be used as a baseline for compg' bus all oMer tax returns and filings.

f. Exhibits >> and >> 2003 Debtors filgé separate tax rettyps. Female Debtor lists status’ as “Head of
Household” using unreported alig#Elayne G. Medina, whichNg an alias of her maiden name Elaine G.
Medina. But male Debtor ugfig unreported alias Debtor Robe €. Whitaker files as married filing
separately. Male DebtogS committed multiple counts of tax fraud a) claiming status as married
filing separate returnfo falsely take advantage of a lower tax bracket (b)¢laiming more exemptions
than they were eg@ftled to: one for self and the 2 for child named SMB, Wajch is also claimed on
female Debtoys tax return; and (c) creating a fictitious alias name, for child who ts
always gg@s by QURNNEES 2s shown on all of female Debtor's tax returns a EIC Earned
IncomfCredit Child Information Forms.

0. Plaintiff begs this Court to scrutinize both Debtors tax returns for fraud and tax evasion; ayd to

repft both Debtors to the U.S. District Attorney, the IRS and NM Taxation & Revenue Department 1¢

G)
.y

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fag" test. The debtor must demonstrate that he or she has male a good faith attempt to make paygrénts

on the Yagn... In addition to examining the payment history of the loan, the court will exgplfine such
factors as: efisegs to get and keep ajob; present employment; job history; whether the depfOr's education
and skills are beinSeysed to the best advantage; and atiempts by the debtor to li within his or her

means. If the debtor fails geet his burden on this factor, the debt is excepted from discharge.

Count 14: Debtor Medical Expenses are Not Dig sargeable Debts

93, Plaintiff alleges that medical expe ficy petition forms are not the debts of

either Debtor; nor the responsibility of either Debi and jv & Debtor's have provided no proof that listed
medical expenses are Debtor's debts. On the conf AM egll listed medical creditors have out of state
Jaddresses that have no relationship to Debtors. . (one of the m¥d jeal expenses are dischargeable debts nor
should any aspect of these medical expenses be used in means test CMculations. By listing debts that are
not their responsibility, Debtors proved misleading statements, committtd false oath bankruptcy fraud.

94, Citing In. re Scott, "infg fnation provided by a debtor... should not Ody be complete but truthful

30 that the Cour! and othegfoarties in inferest can reasonably rely upon ihe data cOmjained therein,”

y, Count 15: Debtor’s Fail Means Test
p95. PlaMtiff alleges that Debtors have failed the means test and provides his estimate of DeDiy

incoygé’ expenses and assets in the attached Excel spreadsheet Exhibit. Therefore, this Court should

m . ra a ith . irae al

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-I2 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 >>>>>.

10 Gleissner, Richard “The Discharge of Debt”

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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 VALIC 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 401K plan from her employer NM
Neurological Associates. Exhibit

h. Each Debtor has ~$200,000 life time pension income from Social Security

ray ys ry . . +
— 4 ‘a g , i: 2 bo a Lene sat art

a a o

proc¥gdings the Debtors VALIC pension account, 401K or Retiree Health Care Plan accounts; especial
when DeDigrs committed multiple counts of fraud.

98. Plaint® alleges Debtors PERA is not exempt property; do not meet the requément for
exemption; and the’ agurt should take charge of funds coming into and going out of thesg@ttirement plans
by (a) liquidating this P RRA and other plans to payoff Debtor debts, including pgyfng Plaintiff's Metro
Court Judgment; (b) stoppin her Debtor contributions to these plans and ggfnishing those proceeds to
pay down judgment; and (c) gar ing future plan distributions.to pay dg#n the judgment.

99. Plaintiff asserts that the Bar Ryptcy Court has jurisdictiog*Over Debtor's PERA account, self-
directed retirement accounts and cash TMgnds from retireg@nt accounts; especially where Debtors
committed bankruptcy fraud, fraudulently trans ferred 3 gfls into pension & self-directed accounts; and

concealed cash disbursements from these accounts. gi

100. Plaintiff avers that New Mexico pggfion for Pyblic employees is governed by the Public
€ surface it appears taat NM PERA is not subject to process of

Employees Retirement Act (PERA). Onj
Kruptcy proceedings. NMSAX¥J978) §10-11-135 states: Except as

service and are protected assets in bgf
provided in Sections 10-1]-13@ and 10-11-136.1 NMSA 1978, none BK the money, pensions or other

g cither in law or in equity
Sections §10-11-136
hild support.

benefits mentioned in the Public Employees Retirement Act shall be assignad
or be subject to exegt fion, levy, attachment, garnishment or other legal proces$

and 10-11-136

dre not applicable to this case since they deal with divorce, alimony a

eon; and that

Fedegé bis rule

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exemption statutes NMSA (1978) §10-11-135%

that it does not allow a debtors to find shelter in thé fc

Count 17: Debtors Concealed, Destroyed or Attempted Destruction of Vital Records

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* 104. Plaintiff alleges Debtors committed false oath and fraud by destroying or atternpting 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.

106%. Plaintiff alleges that each Debtor/Defendant has a track record of false oath, fraudulent filings
ivity that this Court needs to be aware of and take into consideration when making a dg€ision

§ Plaintiff

criminal
regarding the wgythfulness, the completeness and integrity of the Bankruptcy Petition. And j

belief that if this Ggurt uses a microscope point of view to scrutinize the Bankruptcygfetition, forms,

nt petition with the

schedules it will indepe dently arrive at the conclusion that Debtors filed a fraud

Plaintiff defrauded the

Avhich, Debtors are liable for.

intent to deceive this court; Wgtain free rent and free utilities at the expense o
Creditors identified in the petitioMggand other creditors not disclosed, but fg
107. Throughout the pleading Plai

now he presents remainder of Debtor frau dgat has been uncovg

uff has discussed criminal act nd fraud that Debtors perpetrated;

fd and have bearing on this case.

in the amount 0$232-256/mth in food stamps;
all the while making false oath by claiming | ¥ g was unemployed; that she & daughter
were living alone at the rental propertygfit . SW&aBQ, NM 87121; and that she alone

was paying rent and utilities.

110. f OT, Was

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§14-12A-26 b 2: §14-12A-9(B). Female Debtor, as Notary Public, continued to violatg@/NM statues by
not updating her'gddresses with SOS & Surety Bond Company during years that her fommission was in
force. Plaintiff begs “his Court to report female Debtors to the U.S. District Attoryfy, NM SOS and NM

District Attorney regarding female Debtor violations of and prosecution under NM Notary Public statutes,

lll. Plaintiff alleges Mat Debtors committed criminal fraud and conceffment upon this court, the
original vehicle owners, credits and upon NM MVD by intentionally keghing, for ten years, the Sonoma
vehicle license plate 457KCZ ahd vehicle registration in the name @f the original owners, Walter J.
Florence or Karen Florence; as evi ced by Exhibit >>> » whic is a certified copy of the 2013 NM
MVD vehicle registration for this GN K Sonoma. Violatio & NMSA MVD statutes are criminal
offenses. NMSA §66-5-38 clearly states Pras “Making False iifidavil is perjury. By keeping the GMC
Sonoma license and registration in the F loren’ \ name,fhe Debtors for 10 years intentionally hid this

asset under someone else's name; that could not beYagd under their name or any of their aliases.

Count 18: Debtor's Did Not Exercisy é ither | Oy ations: Including 3 Party Liability
: options to resolve financial issues with

112. Plaintiff alleges that Debtors did y ff exercise oth

Creditors, prior to and in lieu of filing J br r Bankruptcy; options _ that Debtors could have exercised to
prevent getting into debt in the first y, fe: not embezzling cash; no’ fansferri ng cash & assets to insiders;
not taking on someone else's debt‘ ye responsibilities; not falsifying ti returns; not purchasing so many
vehicles and assets. And are ay Gnber of options available to pay off thady debts: petting a job, there is

an; sale of vehicles; using

no reason female Debtor isn‘for can't work; cashing out portion of pension

unreported cash and incoyge f ; using money saved by not paying child's schooling shaving insiders return
portion of cash & assety Aransferred to them; having insiders that have 3" party liabilN apay for debts.

113. Plaintiff offgfed tenants opportunity to stay in rental dwelling and payoff past % Wwe amounts thru
long term paymeffts. However, tenants failed to show up at negotiation meetings with thi Ki attorney &
deliver the $2 700 cash the night preceding filing petition; all of which that would have secured % ac deal.
114. Pla itt alleges Debtors have and had other options to pay down or pay off creditors:

a. $1 180 rental damage deposit; $810 unreported PNM & gas deposit refund

b. 71300 unreported cash kickback (referral fees) from GMC Quality Dealerships

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Case 13-01068-j} Doc 49 _ Filed 03/28/14 Entered 03/28/14 16:13:55 Page 41 of 43

$3 1,200 -$55,000 unreported cash siphoned off to insiders (parents)
Selkoff Debtors 5 of 6 vehicles valued at ~$29,000 or obtain loans against vehicles

AnnuatR S and NM tax refunds that Debtors received over the past decade; including 2013 refyffds

Zz a m ©

~ $6569 oh h female Debtor received from her Welles Fargo Retirement fund ; ~$1000 casyftrom

female 401K Pegirement fund ; ~$779 cash female Debtor received from her 2" 401K gyn

i, ~$85,000 financis haid Debtors received from Albuquerque Academy

j. Cash out part of the $400,000 PERA and retirement funds; stop making PER4#ontributions

k, Receive assistance from amily members and friends. Quid pro-quo, ifMDebtors were previously
taking care of other family meg bers; at time of need why are not famibymembers helping Debtors?

1. Place a°* party liability against Rebtors friends and family that usgfhe Plaintiff's rental property and
addresses even though they are not dkythe lease to pay down thg8402Metro Judgment

m. File a claim against Debtor's renters ins¥ gance for unpaid rgft, court costs and damages.

n. Cash in the $68.44 Farmers Group Ins checks .

Count 19; Bankruptcy is A fhrcads o Metro Court Judgment
y using th&Bankruptcy Court as a means to appeal the

115. Plaintiff alleges that Debtors are illegg
restitution judgment ordered by the Metrop6litan Court. Bankrigtcy petition is an immediate appeal from
the lower Court judgment. ‘ .
116. Plaintiff avers that since ebtors did not show up at the Meth \Court Trial. they did not exercise
all of their lower court optigifs so they forfeit their legal right to appel, If Debtors did not express

6 in Metro Court on the day of trial, then they ca Ne be allowed to use higher

enough interest to show )
Courts to protect thefinancial interests and assets. This Court should exemp “yletro Court Judgment
and lift the stay s#Plaintiff can move on with collection of the Judgment. .

117. Fede
‘A motion for a stay pending appeal seeks to delay the effect of a district court ord®& or agency
SF ederal

€! Courts Judicial Center['']: stay is the postponement or halting of a judic® i, proceeding or
judgme

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 Plaintiffs Metro Court Judgment. Plaintiff further asks that Court award cost, fees and

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Case 13-01068-j} Doc 49 _ Filed 03/28/14 Entered 03/28/14 16:13:55 Page 42 of 43

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) 362-273]

CERTIFICATE OF SERVICE

I certify that | 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 | am unable to mail cepies 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.

Abaky {0 gto

Stanley Z. Peplinski

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