Gonzales v. Beery et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
JEROME GRIGGS BEERY,
Debtor. No. 7-94-10504 SS
YVETTE J. GONZALES, TRUSTEE,
Plaintiff,
v. Adv. No. 09-1191 S
JEROME GRIGGS BEERY,
JOYCE K. BEERY,
COUNTRYWIDE BANK FSB,
UNITED STATES OF AMERICA, (IRS), and
FIRST NATIONAL BANK OF SANTA FE,
Defendants.
MEMORANDUM OPINION IN SUPPORT OF
ORDER DENYING DEBTOR’S MOTIONS TO DISMISS
Debtor Jerome Beery has filed two motions to dismiss, both
at docket 18. Trustee Yvette Gonzales has responded. Doc 22.
Both motions will be denied.
Trustee filed this adversary proceeding to quiet title to
the estate’s undivided one-half interest in a residential
property located at 565 Navajo, Los Alamos, New Mexico. Trustee
claims that Debtor and his wife owned that property at the time
Debtor filed his chapter 7 petition in February 1994, and that
therefore by operation of law Debtor’s undivided half interest in
the property became property of the estate by virtue of
§541(a)(1). Debtor disputes that claim and argues in his first	1
Neither the complaint nor any of the responses of the	1
defendants have raised the issue of the entire residence coming
into the estate pursuant to §541(a)(2), nor does the judgment
entered in an earlier adversary proceeding referred to below
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motion (doc 18 at 1) that in February 1985, he transferred his
half interest to his spouse, Joyce K. Beery, and thus there was
nothing to pass to the estate upon the filing of the petition.2
Debtor also acknowledges that in a previous adversary proceeding
[Gonzales v. Beery, Adv Pro 97-1059], the Court (the Honorable
Mark B. McFeeley, the predecessor judge in the bankruptcy case
and the adversary proceedings) ruled on this very issue, holding
that
[t]he Debtor’s undivided one half interest in the Los
Alamos Property [565 Navajo] as a joint tenant entered
the Debtor’s estate at the time he filed his Chapter 7
petition....
Id., Judgment, at 3 of 5 (97-1059 doc 195). The judgment was
appealed, Notice of Appeal (97-1059 doc 197), which appeal was
dismissed. Mandate to Dismiss Appeal (97-1059 doc 208).
Debtor argues that this decision was “serious error”, doc 18
at 1, but without the appellate court having overruled the
judgment, such a claim is unavailing. The ruling that what was
Debtor’s undivided half interest in the Los Alamos Property
(also styled Gonzales v. Beery, but numbered adv pro 97-1059),
and so the Court will not consider that issue either.
The motions to dismiss argue matters outside the pleadings	2
and thus more properly should be prosecuted as motions for
summary judgment. As such, of course, the motions to dismiss
completely fail to comply with the requirements for motions for
summary judgment. See generally F.R.B.P. 7056; NM LBR 7056-1
(2010). The motions could be dismissed on those grounds alone,
and the Court hereby does so, but the Court also deems it more
expeditious and useful for the parties to rule on the substance
of the motions to dismiss.
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became part of the estate with the filing of the bankruptcy
petition in February 1994, is binding on Debtor by virtue of the
doctrine of claim preclusion or res judicata.
Res judicata ensures the finality of decisions. Under
res judicata, “a final judgment on the merits bars
further claims by parties or their privies based on the
same cause of action.” Montana v. United States, 440
U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210
(1979). Res judicata prevents litigation of all grounds
for, or defenses to, recovery that were previously
available to the parties, regardless of whether they
were asserted or determined in the prior proceeding.
Chicot County Drainage Dist. v. Baxter State Bank, 308
U.S. 371, 378, 60 S.Ct. 317, 320, 84 L.Ed. 329 (1940);
1B J. Moore, Federal Practice ¶ 0.405[1] (2d ed. 1974).
Res judicata thus encourages reliance on judicial
decisions, bars vexatious litigation, and frees the
courts to resolve other disputes.
Brown v. Felsen, 442 U.S. 127, 131 (1979).
In consequence, Debtor’s first motion to dismiss must be
denied.
Debtor’s second motion to dismiss states that Joyce Beery
mortgaged the entire Los Alamos Property [including the estate’s
interest] in order to obtain funds to pay taxes to the United
States Treasury, Internal Revenue Service, that the taxes paid
benefitted the estate because the taxes paid were jointly owed by
Joyce Beery and the estate, and therefore “the case should be
dismissed since it was to the advantage of the bankruptcy estate
to have the IRS debt paid”. Doc 18 at 2. Debtor goes on to
request the Court to award Joyce Beery “a judgment against the
Trustee in the amount of the one-half of the amount paid to the
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IRS”. Id. Of course, Debtor does not have standing to make such
a request on behalf of Joyce Beery, so the motion – both requests
– must be denied on that basis alone. Further, whether the
estate is liable for having a debt paid for it (assuming this is
what happened) is an entirely different issue from whether the
Trustee should be able to clear up the title on the Los Alamos
Property, and thus constitutes no basis for the motion to
dismiss.
For the foregoing reasons, an order shall enter denying
Debtor’s motions to dismiss (doc 18).
James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: April 11, 2011
COPY TO:
William J Arland, III
PO Box 1089
Santa Fe, NM 87504-1357
Clifford C Gramer, Jr
3733 Eubank Blvd NE
Albuquerque, NM 87111-3536
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