Opinion
No. CV04 400 20 29-S
January 6, 2006
MEMORANDUM OF DECISION
This matter comes before the court after being transferred from the Small Claims docket, upon motion of the defendant City of Bridgeport, hereinafter "City."
The salient facts as developed at trial do not appear to be seriously in dispute.
The plaintiff, Barbara Smyers, was discharged of her debts in the U.S. Bankruptcy Court, District of Connecticut (Bridgeport) on November 27, 2001. (Plaintiff's Exhibit E.) The discharge was granted under § 727 of Title 11, of the Bankruptcy Code. Her case can be classified as a "No-Asset" estate.
The Plaintiff did not list the City of Bridgeport as a debtor on her bankruptcy petition although automobile taxes on the Grand Lists of 1999 2000 were assessed against her automobile at that time.
The plaintiff paid the taxes to the City at the tax collectors office on 3/20/02 in the amount of $1,469.14. (Plaintiff's Exhibit D.) She claims she informed the tax collector's office of her claim of discharge but to no avail, and was forced to pay the taxes in order to obtain her Connecticut car registration renewal.
The plaintiff has sued the City for reimbursement of the monies she paid on what she claims to be a debt discharged in bankruptcy. She made no motion to reopen her No-Asset Chapter 7 case with the Bankruptcy Court.
The City denied the allegations in the plaintiff's revised complaint and set forth in its four special defenses that the City was not listed as a creditor on the Plaintiff's bankruptcy petition; that it had no notice of the filing; that the plaintiff never moved to reopen her case to name the City as a creditor; and that by paying the taxes she waived her claim of discharge and is now estopped from pursuing such claim.
The controlling issue in this case is whether actual scheduling of a creditor is a no-asset bankruptcy matter is necessary to render an otherwise dischargeable debt discharged.
The debt in issue here is the municipality's personal property tax assessments on the plaintiff's automobile for the 1999 2000 years.
The City has not challenged the fact that the tax bill would have been discharged if they had been property scheduled on the petition but claims that lacking a reopening of her petition, she cannot avail herself of that resolution.
The City's defense rests on the fact that there were no scheduling of these debts in the bankruptcy petition and that the City had no notice of the filing, thereby defeating the plaintiff's claim that the debts were discharged as to it. Further, the City relies on the theory of estoppel in that the payment of the taxes subsequent to the discharge amounted to a waiver by the plaintiff from now making such a claim.
The plaintiff relies on the holding in the matter of In re: Kim Elizabeth Refino, U.S. Bankruptcy Court, District of Connecticut, 2003 (Weil, J.). In that case the court issued a memorandum of decision on a motion to re-open a No-Asset Chapter 7 case to permit the addition of creditors who had been omitted from the debtor's petition.
The Bankruptcy Court denied the motion to re-open because ". . . in No-Asset cases, actual scheduling of a creditor is not necessary to render an otherwise dischargeable debt discharged." The court cited Beazley v. California Land Title Co., F.2d 1433 (9th Circuit 1993); In re Rollinson, 273 B.R. 352 (Bankr.D.Conn. 2002) (Dabrowski, J.). The court reasoned in it's memorandum, that the objecting creditors were in no better or worse position if the schedules were amended or not. As indicated in the Beazley case ( supra), an amendment to the schedule would be a pointless exercise.
In a concurring opinion in Beazley, Judge O'Scannlain noted at page 1437 that ". . . (S)ince dischargeability is unaffected by scheduling a no-asset, no bar case, `reopening the case merely to schedule the debt is for all practical purposes a useless gesture'". In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C. 1990).
Here, lacking any showing by the City that the debts in question were in a non-dischargeable category, then re-opening the plaintiff's matter in the Bankruptcy Court would put the City in no better or worse position. Consequently, the defenses raised of failure to schedule and lack of notice are unavailing. As to the defense of Waiver/Estoppel, the City has not sustained its burden of proof and the court finds the plaintiff's testimony credible to the extent that she paid the taxes under protest and did not waive any rights to continue her claim of discharge.
While the plaintiff's claim for damages is in the amount of $2,209.26, the only evidence of loss is the actual payment made to the Bridgeport Tax Collector's office in the amount of $1,469.14 (Plaintiff's Exhibit D.) Judgment may enter in favor of the plaintiff to recover the sum of $1,469.14 from the Defendant City of Bridgeport.