RUSS KENDIG, Bankruptcy Judge.
Now comes Defendant Mirza N. Ahmad, M.D., pursuant to Rule 7015 of the Federal Rules of Bankruptcy Procedure and Rule 15(a)(2) of the Federal Rules of Civil Procedure, and hereby respectfully requests that this Honorable Court grant Defendant leave to file an Amended Answer in order to add the Affirmative Defenses of the expiration of the applicable statutes of limitations pursuant to Ohio Revised Code §2325.18(A), before and subsequent to the effective date of an amendment, dated June 2, 2004; and pursuant to Ohio Revised Code §2305.06, before and subsequent to the effective date of an amendment, dated September 28, 2012.
Defendant's Amended Answer includes the additional Affirmative Defenses as follows:
Defendant Dr. Ahmad further states that this Court has not set a date for the amendment of pleadings, no trial date has been set, and by agreement of the parties, the date for the filing of dispositive motions was extended to October 30, 2019.
This Court has jurisdiction pursuant to 28 U.S.C. §1334 and §157, and pursuant to the general order of reference. Venue in this district and division is proper pursuant to 28 U.S.C. §1409, and this is a core proceeding pursuant to 28 U.S.C. §157(b)(2)(H).
Therefore, Defendant Dr. Ahmad respectfully requests leave to file an Amended Answer and include the Affirmative Defenses set forth above, pursuant to Rule 7015 of the Federal Rules of Bankruptcy Procedure and Rule 15(a)(2) of the Federal Rules of Civil Procedure. A copy of the Amended Answer is attached hereto and incorporated herein as Exhibit A.
Rule 15(a)(2) of the Federal Rules of Civil Procedure, as applied to adversary proceedings by Rule 7015 of the Federal Rules of Bankruptcy Procedure, states that "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires."
Rule 15(a)(2) is a liberal standard that favors granting leave for amended pleadings on the "principal that cases should be tried on their merits rather than the technicalities of pleadings." Fenley v. Wood Group Mustang, Inc., S.D. Ohio No. 2:15-cv-00326, 2016 WL 10570260, *2 (Nov. 21, 2016). And in keeping with this liberal standard, motions for leave to amend should be granted absent "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962); see also, Anthony J. DeGirolamo v. The Quarry Golf Club, LLC (In re Wittmer), 2011 WL 2551023 *2 (Bankr.N.D. Ohio 2011). Defendant Dr. Ahmad maintains that these factors weigh in favor of this Honorable Court granting Defendant's motion to amend his Answer to include the Affirmative Defenses of the expirations of relevant Statutes of Limitations.
Defendant maintains that there has been no undue delay in making this motion to amend his answer. First, this Court has not set a date for the amendment of pleadings in this case. In addition, no trial date has been scheduled. And while the discovery cut-off date and the date for the filing of dispositive motions have been extended by the agreement of the parties, Plaintiff has conducted discovery by issuing written discovery requests to which Defendant has responded, and by taking the deposition of Defendant Dr. Ahmad. And while Defendant does not believe that Plaintiff will need to depose the Defendant further in order to defend against the affirmative defenses of the expiration of applicable statutes of limitations; nevertheless, if counsel for Plaintiff deems further discovery is warranted, Defendant will provide reasonable cooperation and accommodation.
Second, there is no bad faith or dilatory motive. Subsequent to Defendant's deposition, further evaluation and research was conducted in relation to Defendant's affirmative defenses of laches, waiver and estoppel. And in furtherance thereof, a review of the Stark County Court of Common Pleas, Domestic Relations Division docket for Case No. 83813 was conducted, and it appears that no efforts to enforce or collect the Judgment filed on January 5, 1981 concerning the obligation to pay the debtor $25,000 as a distribution of property were initiated or filed by the debtor.
As such, Defendant Dr. Ahmad maintains that there has been no undue delay, bad faith or dilatory motive in making this motion to amend his answer, and as such, Defendant respectfully requests that this Honorable Court grant leave for Defendant to file the Amended Answer.
Defendant Dr. Ahmad has not previously requested leave to amend his answer, and there have been no repeated failures by Defendant to cure any deficiencies in the answer by prior amendments. As such, Defendant Dr. Ahmad respectfully requests that this Honorable Court grant leave for the Defendant to file the Amended Answer.
As stated above, this Court has not set a date for the amendment of pleadings and no trial date has been scheduled. The discovery cut-off date was extended by agreement of counsel to September 30
Defendant maintains that Plaintiff should not need to depose Defendant Dr. Ahmad further in order to defend against the affirmative defenses of the expirations of the applicable statutes of limitations. At his deposition, Dr. Ahmad testified as follows:
From this testimony, Dr. Ahmad indicated that no motions or actions were filed by the debtor in an effort to collect the alleged $25,000 debt indicated in the Judgment Entry of January 1981, and that there were no collection efforts filed according to his knowledge. However, if counsel for Plaintiff deems it necessary to conduct further relevant discovery concerning whether Defendant Ahmad has any knowledge or information as to the affirmative defenses that the adversary complaint is barred due to the Statutes of Limitations regarding dormant judgments and/or breach of contract, then Defendant will provide reasonable cooperation and accommodation for any such relevant requests.
There will be no undue prejudice to Plaintiff Trustee by virtue of the allowance of the requested amendments to Defendant's Answer with the additional Affirmative Defenses. Defendant Dr. Ahmad respectfully requests that this Honorable Court grant leave for Defendant to file the Amended Answer.
The Affirmative Defenses of the expiration of the Statutes of Limitations set forth Ohio Revised Code §2325.18(A), before and subsequent to the effective date of an amendment, dated June 2, 2004; and Ohio Revised Code §2305.06, before and subsequent to the effective date of an amendment, dated September 28, 2012, are applicable and lawful to Plaintiff Trustee's allegations, and Defendant's requested affirmative defenses to the adversary complaint and are thereby valid not futile amendments.
Revised Code §2325.18(A) states in pertinent part as follows: "An action to revive a judgment can only be brought within ten years from the time it became dormant, . . .". Prior to the amendment of this statute on June 2, 2004, the limitations period to revive a dormant judgment was 21 years from the time the judgment became dormant. According to Revised Code §2329.07(B), a judgment becomes "dormant and shall not operate as a lien against the estate of the judgment debtor unless one" of four actions is taken within five years of the judgment. Those actions are:
And, according to Revised Code §2325.15, a dormant judgment can only be revived as follows:
Defendant alleges that the Judgment Entry dated in January 1981, which is the basis for Plaintiff Trustee's complaint, is dormant and has not been revived according to Ohio Law within the prescribed Statute of Limitations. The debtor did not take any action on the Judgment Entry to collect the amount of $25,000 distribution of property as required by Revised Code §2329.07(B), or as required by former Revised Code §2329.07(A). Therefore, by operation of Ohio Law, the Judgment Entry is dormant and can no longer be enforced. Further, the debtor has not revived the dormant judgment as required and provided by Ohio Law. And pursuant to the Ohio Supreme Court, Ohio dormancy provisions apply to divorce judgments from the date of issuance. In re Estate of Mason, 2006-Ohio-3256, 109 Ohio St.3d 532, paragraph one of the Syllabus. See also, Stewart v. Campbell, 97 Ohio St. 335 (1918).
Finally, the Court in Martin v. Stoddard (In re Richard Stoddard), 248 B.R. 111, 116-117 (Bankr.N.D. Ohio 2000), stated as follows:
Defendant alleges that the Judgment Entry dated January 5, 1981, which is the sole basis for Plaintiff Trustee's adversary complaint, is dormant, and the statute of limitations to revive the judgment has expired. While there may be an issue as to whether the 10 or the 21 time period applies, 21 years after the Judgment Entry became dormant (plus five years after the date of the Entry) is January 5, 2006. Even if the date set forth in the complaint is considered, which Defendant maintains may not redress the dormancy issue, then according to paragraph 6 of the complaint, the time when Defendant Dr. Ahmad was obligated to pay the alleged judgment amount of $25,000 was October 25, 1991.
As in Stoddard, the Judgment Entry that is the sole basis for Plaintiff Trustee's adversary complaint is dormant and has not been revived. And now, the Statute of Limitations for the revival of that dormant judgment has expired. Defendant Dr. Ahmad's liability on the Judgment Entry is thereby extinguished according to Ohio Law.
Finally, the Statute of Limitations regarding contracts in writing, Revised Code §2305.06 is 8 years, and prior to the amendment of this Statute, the limitations period was 15 years. Considering the Judgment Entry to be a written contract, and according to paragraph 6 of the complaint, since Defendant Dr. Ahmad was to pay the judgment amount of $25,000 on October 25, 1991, the limitations period expired on October 25, 1999. And applying the prior version of the statute, the limitations period expired on October 25, 2006. Both expiration times are well before the filing of the adversary complaint on May 2, 2019.
Therefore, there is no futility in the Amendment of the Answer to include the Affirmative Defenses for the expiration of the Statute of Limitations set forth in Revised Code §2325.18(A), and for the expiration of the Statute of Limitations as set forth in Revised Code §2305.06. As such, Defendant Dr. Ahmad respectfully requests that this Honorable Court grant leave him to file the Amended Answer.
For the reasons set forth herein, and pursuant to Rule 7015 of the Federal Rules of Bankruptcy Procedure and Rule 15(a)(2) of the Federal Rules of Civil Procedure, Defendant Mirza N. Ahmad, M.D. hereby respectfully requests that this Honorable Court grant Defendant leave to file an Amended Answer in order to add the Affirmative Defenses of the expiration of the applicable statutes of limitations pursuant to Ohio Revised Code §2325.18(A), before and subsequent to the effective date of an amendment, dated June 2, 2004; and pursuant to Ohio Revised Code §2305.06, before and subsequent to the effective date of an amendment, dated September 28, 2012.
Now comes Defendant Mirza N. Ahmad, M.D. (hereinafter "Ahmad") and for his Answer to the Complaint of Plaintiff Lisa M. Barbacci, Trustee (hereinafter "Trustee") hereby states as follows
1. Defendant Ahmad admits the allegations contained in paragraph 1 of the Complaint.
2. Defendant Ahmad admits the allegations contained in paragraph 2 of the Complaint.
3. Defendant Ahmad admits the allegations contained in paragraph 3 of the Complaint.
4. Defendant Ahmad hereby reaffirms paragraphs 1 through 3 of this Answer as if fully restated and incorporated herein.
5. Defendant Ahmad admits that he and the Debtor were husband and wife and that they were divorced pursuant to a Judgment Entry entered by the Stark County Court of Common Pleas, Division of Domestic Relations, on January 5, 1981 (hereinafter "DR Judgment Entry"), in the case captioned Mirza N. Ahmad v. Amy E. Ahmad, Case No. 83813; however, stating further, Defendant Ahmad denies each and every remaining allegation contained in paragraph 4 of the Complaint.
6. Defendant Ahmad admits that the DR Judgment Entry stated that the Debtor was "granted a lien in the amount of Twenty-Five Thousand Dollars ($25,000.00) ... which will be payable with interest at the rate of eight percent (8%) per annum, compounded annually, on the earliest of" three stated conditions; however, stating further, Defendant Ahmad denies each and every remaining allegation contained in paragraph 5 of the Complaint.
7. Defendant Ahmad admits that the earlier of the three aforementioned stated conditions in the DR Judgment Entry was the "expiration of the plaintiff-husband's obligation to pay either alimony or support"; however, stating further, Defendant Ahmad denies each and every allegation contained in paragraph 6 of the Complaint.
8. Defendant Ahmad denies each and every allegation contained in paragraph 7 of the Complaint.
9. Defendant Ahmad denies each and every allegation contained in paragraph 8 of the Complaint.
10. Defendant Ahmad denies each and every allegation contained in paragraph 9 of the Complaint.
11. Defendant Ahmad is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 10 of the Complaint and therefore denies the same.
12. Defendant Ahmad states that in the event that an amount may be determined to be owed to the Debtor pursuant to the DR Judgment Entry, any such determination shall be subject to the terms of the DR Judgment Entry, as properly read, interpreted and applied, and shall be subject to Defendant's affirmative defenses; however, stating further, Defendant Ahmad denies each and every allegation contained in paragraph 11 of the Complaint.
13. Defendant Ahmad is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 12 of the Complaint and therefore denies the same.
14. Defendant Ahmad hereby reaffirms paragraphs 1 through 13 of this Answer as if fully restated and incorporated herein.
15. Defendant Ahmad admits that the DR Judgment Entry stated that the Debtor was "granted a lien in the amount of Twenty-Five Thousand Dollars ($25,000.00) against the Mirza N. Ahmad, M.D., Inc. stock"; however, stating further, Defendant Ahmad denies each and every remaining allegation contained in paragraph 13 of the Complaint.
16. Defendant Ahmad denies each and every allegation contained in paragraph 14 of the Complaint.
17. The Complaint fails to state a claim upon against Defendant Ahmad upon which relief can be granted, and therefore the Complaint must be dismissed.
18. The claims of the Plaintiff Trustee arise from alleged claims of the Debtor and are barred pursuant to the Doctrines of Waiver, Promissory Estoppel, Equitable Estoppel, and Laches, and therefore the Complaint must be dismissed.
19. The claims of the Plaintiff Trustee arise from alleged claims of the Debtor and are barred due to the failure of the Debtor to mitigate damages.
20. Defendant Ahmad reserves the right to modify and/or to assert additional or other applicable affirmative defenses which may be ascertained and discovered through further investigation and discovery during this action.
21. The claims of the Plaintiff Trustee arise from alleged claims of the Debtor and are barred due to the operation of Ohio Statutes regarding dormant judgments, Ohio Revised Code §§ 2325.15 et. seq., including, but not limited to the expiration of the Statute of Limitations on actions to revive dormant judgments, Ohio Revised Code § 2325.18(A).
22. The claims of the Plaintiff Trustee arise from alleged claims of the Debtor and are barred due to the expiration of the Statute of Limitations regarding contracts in writing, Ohio Revised Code § 2305.06.
The plaintiff-husband is ordered to assign the certificate of title to said automobile to defendant-wife within ten (10) days of the filing of this Judgment Entry.
The Court further orders that defendant-wife shall have The _________________________________________, free and clear of any claim of the plaintiff-husband thereto.
The Court further orders that plaintiff-husband shall have the apartment furniture located at his apartment at located at the marital residence at _____________________________ Ohio; all ___________________________________________________________ all shares of _____________________________________________________________ _______________________________________________________________________ _____________________________________________________________________ all interest in the _________________________________________________ husband; all assets in the _______________________________________________ _________ at and the ______________________________________________ presently titled in plaintiff-husband's name, as his own property, free and clear of any claims of the defendant-wife thereto; provided, however, that defendant-wife is granted a lien in the amount of Twenty-five Thousand Dollars ($25,000.00) against the Mirza N. Ahmad, M.D., Inc. stock which will be payable with interest at the rate of eight percent (8%) per annum compounded annually, on the earliest of the following conditions:
Wife's lien on MD stock.
This lien with interest to the date of payment will be payable by the plaintiff-husband to the defendant-wife as a further distribution of property.
The defendant-wife is further awarded the sum of __________________ _____________________________________________________ as her interest in the aforesaid ___________________________________________ the _______________________________________________________________ ________________________________________________ defendant-wife within ten (10) days of the filing of this Judgment Entry.
The Court further orders that plaintiff-husband shall maintain
Plaintiff-husband is ordered to pay all indebtedness due and owing on the ___________________ maintained by the parties during their marriage and save defendant-wife harmless from any indebtedness due and owing thereon.
Defendant-wife is ordered to pay all indebtedness due and owing on the ________________________________________________ account, both of which accounts were maintained by the parties during their marriage and save plaintiff-husband harmless from any indebtedness due and owing thereon.
Plaintiff-husband and defendant-wife are each ordered to pay his or her own attorney fees.
