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BRESSNER v. AMBROZIAK

May 16, 2003

KERMIT JAY BRESSNER, PLAINTIFF,
v.
SHIRLEE AMBROZIAK, DENNIS AMBROZIAK, AMZO MAILING SERVICES, INC. AND HARRIS BANK PALATINE, N.A., AS TRUSTEE UNDER TRUST AGREEMENT DATED MAY 12, 1998, AND KNOWN AS TRUST NUMBER 6938, DEFENDANTS.



The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge.

MEMORANDUM OPINION AND ORDER

Before this court is the second amended complaint filed by plaintiff Kermit Jay Bressner ("Bressner") against defendants Shirlee Ambroziak ("Shirlee"), Dennis Ambroziak ("Dennis"), Amzo Zip Mailing Services, Inc. ("Amzo") and Harris Bank Palatine, N.A., as Trustee under Trust Agreement dated May 12, 1998 and known as Trust Number 6938 ("trustee"). Plaintiff claims defendants engaged in a civil conspiracy against him (Count I) and violated the Illinois Uniform Fraudulent Transfer Act ("UFTA"), 740 ILCS 160/1 et seq., (Count II). Furthermore, plaintiff seeks the imposition of a constructive trust (Count III). Defendants move for dismissal of plaintiff's second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Diversity Jurisdiction is properly invoked pursuant to 28 U.S.C. § 1332, in that plaintiff alleges that he is a citizen of Arizona and that all defendants are citizens of Illinois and that the amount in controversy exceeds $75,000. For the reasons set forth below, the court grants the motion to dismiss.

STANDARDS FOR A MOTION TO DISMISS

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001). In ruling on a motion to dismiss, the court accepts as true all well-pleaded facts alleged in the complaint, and it draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002); Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999).

ALLEGATIONS FROM THE SECOND AMENDED COMPLAINT

In June 1982, Dennis and Shirlee Ambroziak (collectively, the "Ambroziaks") filed a Chapter 7 petition in bankruptcy court. Through an adversary proceeding, plaintiff obtained a judgment of nondischargeability against Dennis on a debt he owed plaintiff on a note in the amount over $485,000. Apart from this judgment, the debts of the Ambroziaks were discharged in October 1982. To plaintiff's great frustration, although he periodically "revived" the judgment, he has been unable to obtain satisfaction of the judgment. (Sec. Am. Compl. ¶ 14.) Plaintiff claims that the present value of the judgment exceeds $1.2 million.

Shortly after the Ambroziaks filed their bankruptcy petition, the United States Attorney for the Northern District of Illinois indicted Dennis for one count of mail fraud, 18 U.S.C. § 1341, and one count of criminal infringement of a copyright, 18 U.S.C. § 2319. On November 19, 1983, Dennis pled guilty to the counts and on January 20, 1994, the Honorable John F. Grady, United States District Judge, imposed three-years probation on both counts to run concurrently and a $5,000 fine on the mail fraud count. On February 5, 1985, the United States Attorney moved to revoke Dennis's probation based on his failure to file federal income tax returns for 1982, 1983 and 1984, although he falsely claimed he had done so. Plaintiff does not allege whether the court revoked Dennis's probation. On plaintiff's information and belief, however, Dennis has not filed any federal income tax returns for over twenty years.

In March 1986, a fire of suspicious origin severely damaged the Ambroziaks' residence and disrupted Dennis's business. The Ambroziaks' claim on an insurance policy was rejected, a law suit ensued, and in November 1993 a jury sided with the insurance company. Despite their financial setbacks, Dennis and Shirlee were able to fund the restoration of their fire-damaged residence in 1989 by granting a contractor title to a property in Wisconsin (valued at $36,500, with an $18,000 mortgage and, by the way, this asset did not appear on the Ambroziaks' bankruptcy petition). The Ambroziaks subsequently sold this residence to satisfy the contractor's liens.

In 1992, Shirlee bought a house on 3.5 acres of land in Woodstock, Illinois for $470,000 (the "Bull Valley Property") and within a short period of time she and Dennis made significant improvements to the property, substantially enhancing its value. Moreover, since 1997, the Ambroziaks have transferred cash and assets off-shore by acquiring or investing in luxury vacation and/or retirement properties in Anguilla, a small British dependency located at the northern end of the Leeward Islands in the Caribbean.

At some unspecified point post-discharge, Shirlee (with Dennis's help behind the scenes) started Amzo, which operated for a period of time out of the Bull Valley Property. By 1996, Shirlee expanded Amzo's operations into a 46,000 square-foot commercial building, located on west Chicago Avenue in Chicago, where Amzo currently employs some 30 employees. Shirlee bought this property for $700,000. Both the Bull Valley and the Chicago Avenue properties are held in land trusts of which Shirlee is the sole beneficiary. Plaintiff estimates the value of Amzo at approximately $1 million.

Plaintiff alleges that Dennis is a primary participant in the generation of wealth that is formally held by Shirlee and that the Ambroziaks have since the date of judgment conspired together to defraud plaintiff by hiding Dennis's assets and income so as to prevent plaintiff from collecting his judgment. Specifically, plaintiff alleges that the Ambroziaks conceal Dennis' s involvement in Amzo by making Shirlee the sole officer, director and stock holder of Amzo and conceal Dennis's interest in the Chicago Avenue and Anguilla properties. Furthermore, plaintiff alleges Shirlee filed a federal income tax return at some unspecified point where she listed Dennis's social security number as "999-99-9999." Moreover, plaintiff alleges that Shirlee executed land trust or bank loan applications in October 1992, February 1996, March 1996, January 1998, February 1998 and April 1998, where she failed to disclose (a) that Dennis worked at Amzo and was an important player in the business and (b) that Dennis had a "beneficial interest" in Amzo. In May 1998, Shirlee also caused a land trust to be created in which she named Dennis and their children as contingent beneficiaries and in June 1998, she mortgaged the Chicago Avenue property without disclosing (a) and (b) above. Plaintiff seeks the liquidation of assets belonging to Shirlee, which could satisfy the judgment if they belong to Dennis.

DISCUSSION

Plaintiff alleges the following claims against defendants: civil conspiracy (Count I); violation of the UFTA (Count II); and imposition of a constructive trust (Count III). ...


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