DeShazo v. Heffernan

1It is, essentially, an action to quiet title. See Pa.R.C.P. 1061(b)(3) (describing an action to
quiet title as, inter alia, an action to compel an adverse party to admit the invalidity of a deed)
I N THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
I N RE 	: CHAPTER 13
:
DUDLEY F. DE SHAZO 	:
DEBTOR 	:
CASE NO. 06-10675
DUDLEY F. DE SHAZO 	:
PLAINTIFF 	:
V . 	:
:
TIMOTHY HEFFERNAN 	:
DEFENDANT 	: ADVERSARY PROCEEDING NO . 06-0218
:
O PINION
By: 	STEPHEN RASLAVICH , UNITED STATES BANKRUPTCY JUDGE .
Introduction
Before the Court are a number of motions related to Plaintiff’s Complaint for
Declaratory Relief. That Complaint seeks a determination that the real estate listed in
his Bankruptcy Schedule A is his property. 1 Defendant disputes that claim and has filed
a Motion for Summary Judgment. After Plaintiff filed a reply to that motion, Defendant
amended it to add a request for dismissal for failure to join necessary parties. Plaintiff
filed a motion to consolidate this adversary proceeding with the case which he brought
against the person whose name is on the deed to the property he claims to be his. All
of the motions are opposed. A hearing on the three requests was held on October 24,
2006, after which the Court took the matters under advisement. Because the Motion for
Summary Judgment is potentially dispositive of the entire matter, the Court will address
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2The Complaint alleges that this is a core proceeding when it references 28 U.S.C. § 157.
Complaint, ¶ 3. It explains that it seeks to determine the Plaintiff’s and Defendant’s interest in the
subject real estate. Id. While that sounds closest to subsection (b)(2)(K) (determining the validity
extent and priority of liens), it is more akin to subparagraph (H), proceedings regarding fraudulent
conveyances. 	However characterized, the allegation of core jurisdiction is admitted by the
Defendant. See Answer ¶ 3. This is, therefore, a core matter over which the Court may exercise
jurisdiction.
3 Fed.R.Civ.P. 56 is applicable to the instant proceeding pursuant to Rule 7056 of the
Federal Rules of Bankruptcy Procedure ("Fed.R.Bankr.P.")
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that motion first. For the reasons set forth below, the Defendant’s Motion for Summary
Judgment will be granted. 2
Standard for Summary Judgment
Motions for summary judgment are governed by Rule 56 of the Federal Rules of
Civil Procedure ("Fed.R.Civ.P."). 3 Pursuant to Rule 56, summary judgment should be
granted when the "pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). For purposes of Rule 56, a fact is material if it might affect the
outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 2510, 91 L.Ed.2d 202 (1986). The moving party has the burden of demonstrating
that no genuine issue of fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
The court's role in deciding a motion for summary judgment is not to weigh
evidence, but rather to determine whether the evidence presented points to a
disagreement that must be decided at trial, or whether the undisputed facts are so one
sided that one party must prevail as a matter of law. See Anderson v. Liberty Lobby,
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4The rule does expressly require affidavits. See F.R.C.P. 56(a).
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Inc., 477 U.S. at 247-252, 106 S.Ct. at 2509-12. In making this determination, the court
must consider all of the evidence presented, drawing all reasonable inferences
therefrom in the light most favorable to the nonmoving party, and against the movant.
See United States v. Premises Known as 717 South Woodward Street, 2 F.3d 529, 533
(3rd Cir.1993); J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d
Cir.1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1313, 113 L.Ed.2d 246 (1991); Gould,
Inc. v. A & M Battery and Tire Service, 950 F.Supp. 653, 656 (M.D.Pa.1997).
The Defendant’s Evidence
The burden of proof falls first on the Defendant who is the moving party here.
See Huang v. BP Amoco, 271 F.3d 560, 564 (3d Cir.2001) (“The moving party bears the
initial burden of demonstrating the absence of any genuine issue of material fact.”)
It is his aim to prove that Plaintiff transferred the property. To do that, he relies on
admitted pleadings and documentary evidence. 4 That evidence establishes the
following: in November 1999 the Plaintiff was the owner of the real property located at
183 Orchard Circle in Lansdale, Pennsylvania. Complaint, Answer ¶ 7. At that time,
Plaintiff placed a mortgage on the property to secure a loan. Id. Subsequently, he
defaulted on the loan and the property was scheduled for a Sheriff’s Sale on July 27,
2005. Id. ¶¶ 8,10 In the runup to the sale, the parties appear to have been discussing
some arrangement whereby the Plaintiff would sell the property to the Defendant, who,
in turn, would lease it back to the Plaintiff. Id. ¶¶ 13,14 On the day scheduled for the
Sheriff’s sale, the parties executed two agreements: the Real Estate Purchase Contract
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5The Defendant alleges that he cured the arrears but the Plaintiff is inexplicably reticent as
to whether that it is the case. Complaint, Answer ¶¶ 11, 12. Regardless, the deposit reflected on
the Purchase Contract is the same amount that was needed to reinstate the mortgage. It appears
safe to conclude, then, that Defendant cured the mortgage default.
6The Amended Motion states that Plaintiff assigned his right to purchase the property to
Helen Roytman. Helen Roytman is one of the Defendants named in the adversary proceeding no.
06-00450 which the Plaintiff seeks to consolidate with this one. The record, however, contains no
express assignment.
7In the Complaint, Plaintiff maintains that the Purchase Contract is incomplete but does not
specify how that document is deficient. 	See Complaint, ¶ 17. 	The Court’s own review of the
Contract does not reveal any deficiency.
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and the Residential Lease with Option to Purchase. See Complaint, Answer ¶¶ 17, 18;
Amended Motion for Summary Judgment, Ex. B, C. The Purchase Contract provided
that Plaintiff would convey the property to Defendant or a nominee of his choosing and
scheduled a closing on the property for September 30, 2005. Amended Motion, Ex. B.
The Lease provided that Plaintiff would rent the property for two years with an option to
buy it back. Id. Ex. C. The Sheriff’s sale did not occur because the mortgage arrears
were paid. Complaint ¶¶ 11, 12; Amended Motion, Ex. D.5 On September 30, 2005, a
deed was executed whereby the Plaintiff appears to have conveyed the property to
Helen T. Roytman. 6 Amended Motion, Ex. E. The Plaintiff continues to reside in the
property and receives mail correspondence there addressed to Roytman. See Docket
for Debtor’s Main Case No. 06-10675; Complaint ¶¶ 25,26.
To the Court, this evidence tends to confirm Plaintiff’s position. The Purchase
Contract, Lease and Deed all appear to have been validly executed. Each is signed by
both parties and the Deed was executed in the presence of a notary. All of the
documents are consistent with each other. 7 The Purchase Contract provides that
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Plaintiff would convey the property to Defendant or his nominee, which appears to have
happened here. See Deed. The Lease provides that Plaintiff would occupy the
property and he is living there now. See Voluntary Petition. The Contract provides for a
closing on September 30, 2005, which is the date of the Deed. The Contract also lists a
down payment equal to the amount paid to stop the Sheriff’s Sale. Compare Ex. B and
D. But the most probative piece of evidence is the Deed which is a notarized document.
The significance of the of the notary seal cannot be overestimated: “A notary’s
certificate of acknowledgment is prima facie evidence of the due execution of the
instrument.” Sheaffer v. Baeringer, 346 Pa. 32, 36, 29 A.2d 697, 699 (1943). These
documents—as well as what is alleged and admitted in the pleadings—demonstrate
that Plaintiff divested himself of the property. The Court, therefore, finds that the
Defendant has supported his motion for summary judgment. The burden thus shifts to
Plaintiff to demonstrate that his claim of ownership remains a triable issue of fact.
The Plaintiff’s Response
Where Plaintiff identifies a material factual dispute is in the validity of the Deed.
Plaintiff maintains that the Deed is invalid because he never signed it. Reply, 1. But
there was disagreement at the hearing as to what evidence Plaintiff was required to
offer to make the issue triable. Plaintiff maintains that his pleadings are enough and
that the issue boils down to one of credibility. Transcript (T-) 11,16 To quote counsel,
“it’s a question of who [sic] you believe.” T-14. Has Plaintiff articulated the correct
standard for assessing this summary judgment request?
He has not. In pertinent part, Rule 56 provides:
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[w]hen a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not
rest upon the mere allegations or denials of the adverse
party's pleading, but the adverse party's response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.
F.R.C.P. 56(e) (emphasis added). The Supreme Court has interpreted this rule to mean
exactly what it says: “To successfully oppose entry of summary judgment, the
nonmoving party may not simply rest on its pleadings, but must designate specific
factual averments through the use of affidavits or other permissible evidentiary material
that demonstrate a triable factual dispute.” Celotex Corp. v. Catrett, 477 U.S. at 324,
106 S.Ct. at 2553; Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-50, 106 S.Ct. at
2509-11. Such evidence must be sufficient to support a jury's factual determination in
favor of the nonmoving party. Id. Evidence that merely raises some metaphysical
doubt regarding the validity of a material fact is insufficient to satisfy the nonmoving
party's burden. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). If the nonmoving party fails
to adduce sufficient evidence in connection with an essential element of the case for
which it bears the burden of proof at trial, the moving party is entitled to entry of
summary judgment in its favor as a matter of law. Celotex Corp. v. Catrett, 477 U.S. at
322-23, 106 S.Ct. at 2552-53. Has Plaintiff satisfied his burden of offering evidence to
support his claim that he did not sign the deed?
He has not. An acknowledgment of a deed can only be impeached by clear and
convincing evidence of fraud. Popovitch v. Kasperlik, 70 F.Supp. 376, 383-84 (W.D.Pa.
1947). Arguably, Plaintiff makes an implicit claim of fraud when he alleges that he “has
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never attended a settlement or conveyed title to [the property];” that “at no other time did
[he] sign a deed or any other documents in favor of the Defendant” and that “ownership
of the property was never given by [him] to Defendant.” Complaint, ¶¶ 20-22. However,
those allegations are not supported by evidence (i.e., “specific facts”) of fraud. All that
is offered is supposition that he might have been elsewhere when the closing took
place. (T-14,15) Suppositions, however, are not proofs. See Druker v. Thomas
Jefferson University Hospital, 2005 WL 579741 *4 (E.D.Pa.) (requiring plaintiff to offer
evidence in support of subjective suppositions). They are the “metaphysical doubt[s]”
that the High Court deemed deficient in Matsushita, supra. At a minimum, some
explanation of where he was on the day of the purported conveyance is required here.
Without any evidence, the Court cannot make any inferences—much less reasonable
ones—in Plaintiff’s favor. See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356
(explaining that inferences must be drawn from underlying facts) 	Put another way, his
failure to produce evidence of a triable fact means that he cannot enjoy any of the
presumptions afforded a party against whom summary judgment is sought. See Tunnell
v. Wiley, 514 F.2d 971, 976 (3d Cir. 1975) (“Given the opportunity to respond to a
movant's affidavits, an adverse party may not rest upon a mere cryptic and conclusory
allegation in his pleading, but must set forth specific facts showing that there is a
genuinely disputed factual issue for trial. Where this opportunity to supplement the
record is ignored, summary judgment for the movant who has carried his burden of
proof is appropriate.”) Based on the evidence offered by Plaintiff at the hearing, the
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8At the hearing the Plaintiff challenged for the first time the admissibility of the Deed. T-4.
He maintains that the Defendant’s copy of the Deed is not authenticated. T-12. Without a certified
copy of the deed, his argument concludes, the document is not admissible. Id.
The Court’s review of that issue reveals that the Federal Rules of Evidence apply to
bankruptcy cases. See B.R. 9017; F.R.E. 1101(b). A condition precedent to admissibility of a
document is authenticity. 	See F.R.E. 901, Advisory Committee Notes (“This requirement of
showing authenticity … falls into the category of relevancy dependent upon fulfillment of a condition
of fact and is governed by …Rule 104(b)) A document is authentic when the proponent offers
evidence sufficient to support a finding that the document is what the proponent says it is. 	Id.
While Rule 901 provides illustrative examples of methods of authentication, Rule 902 recognizes
that some evidence is intrinsically authentic. 	Among such examples of self-proof are certified
copies of public records and acknowledged documents. See F.R.E. 902(4) and (8). Although the
Deed as offered contains a notary’s acknowledgment, it is only a copy, and not an original. This
matters given rule 1003's disallowance of a duplicate in lieu of an original document where
authenticity is at issue. 	See F.R.E. 1003(1). 	Thus, the copy of the deed would not be self-
authenticating under rule 902(8). Even so, the Court observed that the notary seal and recording
information on the copy are indications of veracity. 	T-12. 	For that reason, the Court advised
Plaintiff that if he wishes to press the issue of authenticity, he may file a motion for reconsideration
on that point. T-13. The Court is skeptical, however, that this is an argument borne of desperation.
Accordingly, if Plaintiff presses this point (which he can easily confirm) and if it turns out that
Defendant produces a certified copy identical to the copy already in the record, then the Court will
consider Rule 9011 and Plaintiff may be required to pay the costs of putting Defendant through that
needless exercise. T-13,14.
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Court finds that Defendant is entitled to summary judgment in this adversary
proceeding. 8
The Affidavit
The day after the hearing, the Plaintiff hand-delivered to the Court’s chambers a
document styled “Affidavit.” This comes after the Court advised Plaintiff that his mere
denials were insufficient to survive summary judgment and without leave to reopen and
supplement the record. Is this permitted by the applicable rules?
It is not. Rule 56 provides that “[t]he adverse party prior to the day of hearing
may serve opposing affidavits.” F.R.C.P. 56(c) (emphasis added). Likewise,
Bankruptcy Rule 9006 provides, in pertinent part, that “opposing affidavits may be
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served not later than one day before the hearing, unless the court permits them to be
served at some other time.” B.R. 9006(d) (emphasis added). Under either rule, then,
Plaintiff’s affidavit is untimely. In such case, Bankruptcy Rule 9006 which provides that
“the court for cause shown may at any time in its discretion …(2) on motion made after
the expiration of the specified period permit the act to be done where the failure to act
was the result of excusable neglect.” B.R. 9006(b)(1) (emphasis added). Because
plaintiff’s affidavit was not accompanied by a motion, it is out of order. Under these
circumstances, the Court lacks discretion to admit the affidavit. See Lujan v. Nat'l
Wildlife Fed., 497 U.S. 871, 896-97, 110 S.Ct. 3177, 3192-93, 111 L.Ed.2d 695 (1990)
(stating that request for enlargement after expiration of deadline requires motion
demonstrating excusable neglect)
But even assuming that the Court were to admit the affidavit, the result would be
the same. The affidavit is wholly self-serving; it does no more than paraphrase what it
is in the Complaint. More to the point, it never controverts the evidence which the
Defendant has offered. On summary judgment, this is fatal as the Supreme Court has
explained:
In ruling upon a Rule 56 motion, a District Court must
resolve any factual issues of controversy in favor of the non-
moving party only in the sense that, where the facts
specifically averred by that party contradict facts specifically
averred by the movant, the motion must be denied. That is a
world apart from “assuming” that general averments
embrace the “specific facts” needed to sustain the complaint.
As set forth above, Rule 56(e) provides that judgment “shall
be entered” against the nonmoving party unless affidavits or
other evidence “set forth specific facts showing that there is
a genuine issue for trial.” The object of this provision is not to
replace conclusory allegations of the complaint or answer
with conclusory allegations of an affidavit.
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9The Court notes in passing that the signature on the Deed appears strikingly the same as
that on Plaintiff’s Affidavit.
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…
It will not do to “presume” the missing facts because without
them the affidavits would not establish the injury that they
generally allege. That converts the operation of Rule 56 to a
circular promenade: plaintiff's complaint makes general
allegation of injury; defendant contests through Rule 56
existence of specific facts to support injury; plaintiff responds
with affidavit containing general allegation of injury, which
must be deemed to constitute averment of requisite specific
facts since otherwise allegation of injury would be
unsupported (which is precisely what defendant claims it is).
Lujan, supra, 497 U.S. at 888-89, 110 S.Ct. at 3188-89 (emphasis added). Yet this is
exactly what the Affidavit would have the Court do. It dresses up the allegations in the
Complaint as statements under oath. And it does so without adding a shred of
specificity or detail. Some degree of elaboration on the forgery claim is required
especially given the presence of the notary seal on the deed and the Plaintiff’s
unadorned claim that he was elsewhere, the seal notwithstanding. The notary is a
neutral party to this dispute with no stake in the outcome. See Lewars v. Weaver, 121
Pa. 268, 291, 15 A. 514, 518 (1888) (observing that a notary is an entirely disinterested
person as to transaction he witnesses) So this is not a matter requiring Plaintiff to offer
more proof than the movant or to prove a negative; rather, he must offer some evidence
that would support a verdict in his favor. The problem for Plaintiff is that his Affidavit,
even if it were admitted, is wholly without probative value.9 It is no more than a facile
attempt to manufacture a triable issue of fact so as to survive summary judgment. In
that regard it fails.
Summary
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The Court holds that Defendant is entitled to summary judgment. Entry of
judgment in Defendant’s favor, in turn, moots both the Defendant’s Motion to Join as
well as the Plaintiff’s Motion to Consolidate, neither of which need further be
considered.
An appropriate order follows.
By the Court:
____________________________________
Stephen Raslavich
United States Bankruptcy Judge
Dated: 	November 16, 2006
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I N THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
I N RE 	: CHAPTER 13
:
DUDLEY F. DE SHAZO 	:
DEBTOR 	:
CASE NO. 06-10675
DUDLEY F. DE SHAZO 	:
PLAINTIFF 	:
V . 	:
TIMOTHY HEFFERNAN 	:
DEFENDANT 	: ADVERSARY PROCEEDING NO . 06-0218
:
Order
AND NOW, upon consideration of the Defendant’s Amended Motion for
Summary Judgment and Motion to Dismiss for Failure to Join Necessary Parties, the
Plaintiff’s Motion to Consolidate, the parties’ respective opposition to the motions, after
a hearing held on October 24, 2006, and for the reasons set forth in the foregoing
Opinion, it is hereby:
ORDERED, that the Defendant’s Amended Motion for Summary Judgment is
granted and that the Plaintiff’s claims in this adversary proceeding are dismissed; and it
is
FURTHER ORDERED, that the Defendant’s Motion to Join and the Plaintiff’s
Motion to Consolidate are denied as moot.
By the Court:
Stephen Raslavich
Dated: November 16, 2006 	United States Bankruptcy Judge
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MAILING LIST:
George Conway, Esquire
Office Of The U.S. Trustee
833 Chestnut Street
Suite 500
Philadelphia PA 19106
Michael S. Schwartz, Esquire
7600 West Chester Pike
2d Floor-West
Upper Darby, PA 19082
William D. Schroeder, Jr., Esquire
Edward J Carreiro, Jr., Esquire
262A Bethlehem Pike, Suite 102
Colmar, PA 18915
Laura E. Vendzules, Esquire
DILWORTH PAXSON LLP
3200 Mellon Bank Center
1735 Market Street
Philadelphia, PA 19103-7595
Nancy Mulvehill, Courtroom Deputy
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