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Case 1-15-01176-nhl

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UNITED STATES BANKRUPTCY COURT


EASTERN DISTRICT OF NEW YORK
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In re:
JOANN D. SCHULTER, a/k/a
JOANNE D. BEVILACQUIA,

Entered 10/07/15 14:09:41

Chapter 7
Case No. 14-43538 (NHL)

Debtor.
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ROBERT L. GELTZER, as Trustee of the
Estate of JOANN D. SCHULTER, a/k/a
JOANNE D. BEVILACQUIA,
Plaintiff,

Adv. Pro. No.

-againstANTONIO BEVILACQUA,
Defendant.
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COMPLAINT
Robert L. Geltzer, as Chapter 7 trustee (Trustee or Plaintiff) of Joann D.
Schulter, the debtor (the Debtor), by his counsel, the Law Offices of Robert L. Geltzer, brings
this Complaint against Antonio Bevilacqua, the defendant (Defendant), and alleges as follows:
INTRODUCTORY STATEMENT
1.

This is an adversary proceeding seeking: (i) to avoid what the Trustee, upon

information and belief, alleges to be a fraudulent conveyance made by the Debtor to the
Defendant, the former husband of the Debtor, in connection with the transfer of property of the
Debtor, located at 218 Beacon Avenue, Staten Island, New York 10306; Block: 939, Lots: 251
and 252 (the Property); (ii) to recover from the Defendant the value of that transfer, alleged to
be a fraudulent conveyance; and (iii) a judgment in favor of the Plaintiff and against the
Defendant permitting the Plaintiff to sell the Property free of the interest of the Defendant with
such interest to attach to the net proceeds of sale. Claims are asserted under Sections 363, 548,

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550 and 551 of Title 11 of the United States Code, 11 U.S.C. 101 et seq. (the Bankruptcy
Code), and the common law of the State of New York.
THE PARTIES
2.

The Debtors bankruptcy case commenced on July 11, 2014, on which date the

Debtor filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code.
3.

The Trustee is the duly appointed and qualified Chapter 7 Trustee of the Debtor,

having been appointed on or about July 11, 2014 as interim trustee pursuant to 11 U.S.C. 701,
and thereafter trustee pursuant to 11 U.S.C. 702(d) and by operation of law. The Trustee is a
resident of the State of New York and is a licensed New York attorney maintaining an office at
1556 Third Avenue, Suite 505, New York, New York 10128.
4.

Upon information and belief, the Debtor, Joann D. Schulter, is an individual

residing at 25 Lyman Avenue, Staten Island, New York 10305.


5.

Upon information and belief, Antonio Bevilacqua is the former husband of the

Debtor, and resides 218 Beacon Avenue, Staten Island, New York 10306, which is the property.
JURISDICTION AND VENUE
6.

The United States District Court for the Eastern District of New York has

jurisdiction over this adversary proceeding under 28 U.S.C. 1334. By virtue of 28 U.S.C.
157(a), and the Order dated July 12, 1984 of District Court Chief Judge Weinstein of the
United States District Court for the Eastern District of New York.
7.

This is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A), (E), (H), (K),

(M), (N) and (O). The Plaintiff consents to the entry of final orders or judgments by this Court if
it is determined that this Court, absent consent of the parties herein, cannot enter final orders or
judgments consistent with Article III of the United States Constitution.

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8.

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Venue of the subject Chapter 7 case and of this adversary proceeding in this

district is proper pursuant to 28 U.S.C. 1408 and 1409.


FACTS
9.

Upon information and belief, according to New York City Department of

Finance, Office of the City Register, in October 2004, the Debtor purchased the Property from
Louis Mangone.
10.

Upon information and belief, according to New York City Department of

Finance, Office of the City Register, in October 2012, the Debtor transferred a one-half interest
in the Property (the Transfer) to her then husband, the Defendant.
11.

Upon information and belief, the Debtor and Defendant were divorced pursuant to

an April 19, 2013 Judgment of Divorce.


12.

At the time of the Transfer, according to New York City Market Value History

Report, the Property is believed to have had an approximate market value of $629,000.00, to
which mortgages of approximately $490,000.00 attached, leaving equity of approximately
$139,000.00, one-half of which, i.e., $69,500.00, was transferred to Defendant for no
consideration, and must be recovered by Trustee for the benefit of creditors.
13.

Based upon Trustees Court-appointed accountants review of certain of Debtors

books and records provided to the Trustee, and upon information and belief, the Debtor was
insolvent at the time of Transfer or was rendered insolvent as a result of such Transfer.
COUNT ONE: AVOIDANCE OF THE FRAUDULENT TRANSFER
AS A FRAUDULENT CONVEYANCE PURSUANT TO 11 U.S.C.
548 AND 551, AND RECOVERY OF THE VALUE OF THE
FRAUDULENT TRANSFER PURSUANT TO
11 U.S.C. 550(a)
14.

The Trustee repeats and realleges each of the prior allegations contained in

paragraphs 1 through 13 of this Complaint as though fully set forth herein.


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Upon information and belief, the Transfer was a transfer under 105(54) of the

Bankruptcy Code.
16.

Upon information an belief, no monetary or other consideration was received by

the Debtor from the Defendant in exchange for the Transfer.


17.

Upon information and belief, the Debtor received less than a reasonably

equivalent value for the Transfer.


18.

Upon information and belief, the Debtor was insolvent at the time of the Transfer

or was rendered insolvent as a result of such Transfer.


19.

Based on the foregoing, and pursuant to 548 and 550 of the Bankruptcy Code,

the Trustee is entitled to judgment against the Defendant in the amount of $69,500.00; plus
interest from and after the date of this Complaint.
20.

Pursuant to 11 U.S.C. 551, the interests so avoided should be preserved for the

benefit of the estate.


COUNT TWO: UNJUST ENRICHMENT FROM THE
FRAUDULENT TRANSFER
21.

The Trustee repeats and realleges each of the prior allegations contained in

paragraphs 1 through 20 of this Complaint as though fully set forth herein.


22.

Upon information and belief, the Debtor did not receive any benefit in connection

with the Transfer to the Defendant.


23.

Upon information and belief, in contrast, Defendant has been unfairly benefited

by wrongfully receiving and retaining the Transfer, and has been unjustly enriched thereby.
24.

By reason of the foregoing unjust enrichment of the Defendant, the Trustee is

entitled to judgment against the Defendant for the value of the Transfer in the amount of
$69,500.00; plus interest upon all of the foregoing, all for the benefit of the Debtors estate.
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COUNT THREE: SALE OF THE PROPERTY PURSUANT


TO 11 U.S.C. 363(h)
25.

The Trustee repeats and realleges each of the prior allegations contained in

paragraphs 1 through 24 of this Complaint as though fully set forth herein.


26.

That, upon information and belief, neither the Defendant nor Debtor has assigned,

incumbent, hypothecated, or otherwise conveyed his or her respective interest in the Property to
any third parties.
27.

Upon information and belief, the Property consists of a residence such that

partition of the Property between the estate and the Defendant is impracticable.
28.

That a sale of only the estates undivided interests in the Property would realize

significantly less for the estate than would a sale of such Property free of the interest of the
Defendant.
29.

That the benefit to the bankruptcy estate of sales of the Property free of the

interests of the Defendant therein outweigh the hardship, if any, which would be caused the
Defendant thereby.
30.

That the Property is not used in the production, transmission, or distribution, for

sale, of electric energy or of natural or synthetic gas for heat, light or power.
WHEREFORE, the Trustee seeks an order and/or judgment against the Defendant
as follows:
1.

On Count One, a determination that the Transfer constitutes a fraudulent

conveyance and is subject to avoidance under 11 U.S.C. 548 and 551, and that, pursuant to 11
U.S.C. 550(a), the Trustee may recover from the Defendant the value of the Transfer in the

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amount of $69,500.00, plus interest upon all of the foregoing, all for the benefit of the Debtors
estate;
2.

On Count Two, a determination that the Trustee is entitled to judgment against the

Defendant for the value of the Transfer in the amount of $69,500.00, plus interest upon all of the
foregoing, all for the benefit of the Debtors estate;
3.

One Count Three, Plaintiff respectfully requests pursuant to 11 U.S.C. 363(h)

that this Court enter judgments in favor of the Plaintiff and against the Defendant permitting the
Plaintiff to sell the Property free of the interest of the Defendant with such interest to attach to
the net proceeds of sale.
Dated: New York, New York
October 7, 2015

LAW OFFICES OF ROBERT L. GELTZER


Counsel for Plaintiff Robert L. Geltzer, as
Chapter 7 Trustee of Joanne D. Schulter
By:
ROBERT L. GELTZER, ESQ.
1556 Third Avenue
New York, NY 10128
(212) 410-0100