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Richard Smith and Ohannes Korogluvan v. Vartan Seferian

December 21, 2011

RICHARD SMITH AND OHANNES KOROGLUVAN, APPELLANTS,
v.
VARTAN SEFERIAN, APPELLEE.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Richard Smith and Ohannes Korogluyan ("Appellants") appeal a decision of the Bankruptcy Court for the Northern District of Illinois granting summary judgment in favor of the debtor, Vartan Seferian ("Appellee"). The Appellants argue that the decision of the bankruptcy court was wrong and must be reversed. They claim that the Appellee procured his discharge of debt by fraudand that he violated an order of the bankruptcy court. For the reasons set forth below, the decision is affirmed.

I. The Procedural Background

Appellants are judgment creditors of Vartan Seferian, the bankrupt. Appellants obtained a state court judgment against Seferian for $214,000 prior to his filing for bankruptcy protection. On January 29, 2009, Seferian filed for relief under Chapter 7 of the Bankruptcy Code. The meeting of the creditors took place on March 13, 2009. Shortly thereafter, the Appellants moved for leave to conduct Rule 2004 examinations of Seferian, his wife Barbara, his mother Elmast, and another person named Yousif Bahi. The Rule 2004 motion was filed 25 days before the deadline to object to the debtor's discharge. In the Rule 2004 motion, Appellants stated:

At the 341 meeting, the debtor admitted that either he or his wife engaged in financial transactions with Elmast and Yousif that were not disclosed in debtor's schedules.

Upon information and belief, the debtor has been improperly concealing/transferring assets and has involved his wife Barbara Seferian and Yousif Bahi in the concealing/transferring of said assets.

The bankruptcy court granted the motion for leave to conduct the Rule 2004 examinations on April 24, 2009. The examinations were originally scheduled for May 13 and 14, 2009. However, at Seferian's request the examinations were rescheduled, and ultimately were conducted on June 23, 2009.

On May 13, 2009, the bankruptcy court granted Seferian a discharge of debt. Seferian's creditors received notice of the case, including the Appellants, on January 30, 2009. The notice identified May 12, 2009 as the deadline for the parties in interest to file complaints objecting to the discharge. Nevertheless, Appellants failed to request an extension of the deadline to object pursuant to Fed. R. Bankr. P. 4004(b) and they failed to object to the discharge prior to the deadline.

Appellants filed the instant adversary proceeding in December 2009, seeking to revoke the discharge of debt granted to Seferian. The adversary complaint in the bankruptcy court contained two counts. Count I claimed revocation of the discharge pursuant to 11 U.S.C. § 727(d)(1), alleging that Seferian obtained his discharge through fraud because he concealed assets and failed to disclose various financial transactions in his schedules. Count II claimed revocation of the discharge pursuant to 11 U.S.C. § 727(d)(3), alleging that Seferian disobeyed an order of the court by refusing to respond fully to questions during his Rule 2004 examination and by failing to produce requested documents.

Seferian moved for summary judgment on both counts of the complaint, which the bankruptcy court granted on June 2, 2011. As to Count I, the court held that the undisputed facts failed to establish that the Appellants were unaware of the fraud before Seferian's discharge was granted. As to Count II, the court held that the undisputed facts failed to establish that Seferian disobeyed any order of the court. This appeal followed.

Appellants make two claims on appeal. First, Appellants claim that the bankruptcy court erred in finding that they had actual or constructive knowledge of the fraud prior to the May 12 deadline. Second, they contend that the bankruptcy court incorrectly concluded that Seferian had complied with an order of the court.

II. The Standard of Review

This Court reviews the bankruptcy court's findings of fact for clear error and its conclusions of law de novo. See Reeves v. Davis, 638 F.3d 549, 553 (7th Cir. 2011); In re Doctors Hosp. of Hyde Park, 474 F.3d 421, 426 (7th Cir. 2007). Under the clearly erroneous standard, "a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." See Tidwell v Smith, 582 F.3d 767, 777 (7th Cir. 2009) (quoting United States v U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). When the evidence viewed on appeal discloses two permissible views, the choice between them by the initial factfinder cannot be clearly erroneous. Freeland v. Enodis Corp., 540 F.3d 721, 732 (citing Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)). The ...


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