United States District Court, N.D. Indiana
OPINION AND ORDER
JOSEPH S. VAN BOKKELEN, District Judge.
This case arises from a vehicle sale where Defendant, Robert F. Crabbe, used a personal check for the purchase price of the vehicle. This check was dishonored by the Defendant's bank and returned to the Plaintiff as unpaid due to insufficient funds. Plaintiff, who has an open bankruptcy case in Northern District of Indiana, now seeks to recover from Defendant under the Indiana Check Deception statute. Following Plaintiff's Motion for Summary Judgment, the Bankruptcy Court submitted Proposed Findings of Fact and Conclusions of Law to this Court as this issue is not a core proceeding and falls outside of the "related to" jurisdiction granted in 28 U.S.C. § 157(c). The Court, having reviewed these findings and conclusions de novo, agrees with the Bankruptcy Court. Accordingly, for the reasons outlined below, Defendant's counterclaim is dismissed with prejudice and Defendant is ordered to pay Plaintiff $50, 161.
A. Summary Judgment Standard
A motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party seeking summary judgment bears the initial responsibility of informing a court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party supports its motion for summary judgment with affidavits or other materials, it thereby shifts to the non-moving party the burden of showing that an issue of material fact exists. Keri v. Bd. of Trust. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006).
Rule 56(e) specifies that once a properly supported motion for summary judgment is made, "the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts to establish that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party. Keri, 458 F.3d at 628. A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986).
Of significance to this case, Local Rule B-7056-1(a) for the Northern District of Indiana requires that the non-moving party file "within thirty (30) days of the date the motion is served upon it... a "Statement of Genuine Issues" setting forth all material facts as to which it is contended there exists a genuine issue, supported [by]... other admissible evidence, together with any affidavits or other documentary material controverting the movant's position." Bankr. N.D. Ind. R. 7056-1(a); see also N.D. Ind. R. 56-1 (outlining that a party opposing a motion for summary judgment must file a response brief and "any materials that the party contends raise a genuine dispute."). The court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except as disputed by the non-moving party. Bankr. N.D. Ind. R. 7056-1(a). If a non-movant fails to dispute the movant's version of events, the movant's statement of material facts is adopted as true, so long as it is supported by admissible evidence. Westbrook v. BSA, 560 Fed.Appx. 574, 575 (7th Cir. 2014). Nevertheless, summary judgment is not granted as a matter of course when the opposing party fails to offer opposing affidavits or evidence. White v. Indiana Realty Assoc. II, 555 N.E.2d 454, 457 (Ind. 1990).
Before filing for bankruptcy under Chapter 11 of the Bankruptcy Code, Plaintiff agreed to sell a 1998 GMC C7500 to Defendant for $25, 250. (DE 2, R. at 7.) Defendant entered into this agreement on behalf of his business, Keystone Stump & Tree, which is based on Levittown, Pennsylvania. (Id. ) On October 10, 2013, Defendant issued a check in the full amount of the purchase price to Plaintiff. (Id. at 8.) When Plaintiff attempted to cash the check at Defendant's bank, the check was dishonored and returned to Plaintiff due to insufficient funds in Defendant's account. (Id. ) On January 16, 2014, Plaintiff mailed a written notice to Defendant alerting him to this issue and requesting payment of the previously agreed to purchase price. (Id. )
On February 11, 2014, Plaintiff filed a Complaint against Defendant seeking full payment of the purchase price, treble damages, and attorneys' fees, pursuant to the Indiana Check Deception statute, Ind. Code § 35-43-5-5. (Id. ) Defendant answered Plaintiff's Complaint and admitted the check was dishonored by his bank, but refused to pay Plaintiff the agreed upon purchase price. (Id. ) With his Answer, Plaintiff filed a counterclaim against the Plaintiff seeking to rescind the sale and recover damages. (DE 2, R. at 2.) On June 24, 2014, Plaintiff filed a motion for summary judgment on its claim against Defendant, which the Defendant has never responded to. After reviewing the motion, the Bankruptcy Court issued proposed findings of fact and conclusions of law that determined Defendant's actions constituted check deception under Indiana law. (DE 2, R. at 37.)
Failing to respond to Plaintiff's Motion for Summary Judgment was just the beginning of Defendant's disregard for the Bankruptcy Court and this case. The Bankruptcy Court scheduled a pre-trial conference for September 8, 2014, which Defendant did not attend. (DE 2, R. at 27, 34.) After Defendant's failure to appear for the pre-trial conference, the Bankruptcy Court scheduled a hearing for October 20, 2014, to receive evidence on the issue of Plaintiff's damages and to consider whether Defendant's counterclaim should be dismissed. (DE 2, R. at 34.) The Bankruptcy Court also ordered the Defendant to "show cause, in writing, why an order [dismissing his counterclaim] should not be entered." (DE 2, R. at 38.) Defendant did not attend the show cause hearing or submit any written materials justifying his absence and apparent disregard for the Bankruptcy Court's orders. (Id. ) As a result the Bankruptcy Court contends that "[n]othing short of a dismissal with prejudice can effectively respond to such unexplained misconduct." (Id. )
C. Check Deception - Indiana Code § 35-43-5-5
Indiana's Check Deception statute, Ind. Code § 35-43-5-5, criminalizes the knowing or intentional delivery of a check to acquire property that a party knows will not be honored by a credit institution. The statute also states that the fact that a party delivered a check that the credit institution refuses to honor is "prima facie evidence that the person knew the check... would not be honored." Ind. Code § 35-43-5-5(c). The statute also provides that the name, residence, business, or mailing address on the check provide prima facie evidence as to the identity of the maker of the check. Indiana Code § 34-24-3-1 creates a civil action arising from this criminal behavior, Lambert v. Yellowbird, Inc., 496 ...