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UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

In re: ) 

 ) 

PAMELA H. WIGGINS, ) Case No. 18-13607-BFK 

 ) Chapter 7 

 ) 

Debtor. ) 

____________________________________) 

 ) 

RONALD APOSTOLAKIS ) Adversary Proceeding 

 ) No. 20-01068-BFK 

Plaintiff, ) 

 ) 

V. ) 

 ) 

DONALD F. KING, IN HIS CAPACITY ) 

AS CHAPTER 7 TRUSTEE, ) 

 ) 

Defendant. ) 

____________________________________) 

MEMORANDUM OPINION 

This matter came before the Court for a trial on the merits on May 7, 2021. At the 

conclusion of the trial, the Court requested that the parties file post-trial Memoranda of Law. The 

parties have filed their Memoranda, which the Court has reviewed. Docket Nos. 18, 19. For the 

reasons stated below, the Court finds for the Defendant, Donald F. King, Trustee (“the Trustee”). 

A separate Order will be entered granting Judgment for the Trustee. 

Findings of Fact 

The Court, having heard the evidence, makes the following findings of fact. 

A. The Acquisition of the Property. 

1. The Debtor in this bankruptcy case, Pamela H. Wiggins, is a resident of Fairfax, 

Virginia. 

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2. Her brother, Ronald Apostolakis, resides in Florida. 

3. Their mother, Genevieve Apostolakis, passed away on November 1, 2016.1 

4. In March 2015, Mr. Apostolakis and his mother decided to move to Pompano 

Beach, Florida. They purchased a home at 963 SE 9th Ave., Pompano Beach, FL 33064 (“the 

Property”). 

5. Mr. Apostolakis borrowed $80,000.00 from a friend, and personally supplied 

some additional funds, for the down payment. Pl. Ex. 10.2

6. Because of credit problems that Mr. Apostolakis was experiencing at the time, 

Mr. Apostolakis and his mother decided that they would take title to the Property solely in 

Genevieve’s name. Pl. Ex. 1. 

7. Mr. Apostolakis and his mother both resided in the Property. 

8. The mortgage was solely in Genevieve’s name. Pl. Ex. 8. 

9. Although title was solely in Genevieve’s name, Mr. Apostolakis made the 

mortgage payments and paid for the maintenance of the Property. 

10. All five of the siblings – Pamela Wiggins, Florence Reigle, Emmanuel 

Apostolakis, Ted Apostolakis, and Ronald Apostolakis – testified that they understood from the 

outset that the Property was Mr. Apostolakis’ property. The Debtor, Ms. Wiggins, testified that it 

was her brother’s house “from Day 1.” Ted Apostolakis testified that “my brother bought a 

house,” and “my mother lived there.” 

1 Because the Plaintiff, a number of the witnesses, and Genevieve Apostolakis all share the same last name, the 

Court will refer to Ms. Apostolakis as Genevieve. The Plaintiff, Ronald Apostolakis, will be referred to as Mr. 

Apostolakis. 

2 The Plaintiff’s Exhibits will be referred to as “Pl. Ex. __.” The Defendant’s Exhibits will be referred to as “Def. 

Ex. __.” 

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11. In June 2015, Mr. Apostolakis was concerned that title to the Property was in 

Genevieve’s name and not in his name. He and his mother went to see Ted Dipuzzio, an attorney 

in Florida, about a will for Genevieve. Mr. Dipuzzio advised them that they should re-title the 

Property in Mr. Apostolakis’ name, but no action was ever taken to do so. 

12. Mr. Apostolakis still resides in the Property. 

B. The Probate Proceedings in Florida. 

13. Genevieve passed away intestate, that is, without a known, original will.3

 

14. Mr. Apostolakis was appointed as the Personal Representative of her estate by the 

Broward County Circuit Court. Florida Probate Case No. PRC-18-1931. 

15. At the time she died, Genevieve had five heirs, including the Debtor, Ms. 

Wiggins, and the Plaintiff, Mr. Apostolakis. 

16. The Probate Estate consists of approximately $70,000.00 in assets: $60,0000.00 in 

annuities and $10,000.00 in Wells Fargo Stock. 

17. Mr. Dipuzzio testified that, although the Property is listed on an Inventory filed 

with the Broward County Circuit Court, he does not believe it to be property of the Probate 

Estate, owing to Mr. Apostolakis’ equitable claims to title. 

18. No determination has been made by the Broward County Circuit Court due to Ms. 

Wiggins’ bankruptcy filing and the automatic stay. 

C. Ms. Wiggins Files for Bankruptcy. 

19. Ms. Wiggins filed a Voluntary Petition under Chapter 7 with this Court on 

October 25, 2018. Mr. King was appointed as the Chapter 7 Trustee. 

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 Ted Dipuzzio, counsel for Mr. Apostolakis as Personal Representative in the Probate Estate, testified that there 

was a copy of a will, but that the original could not be located, nor could the witnesses be located. 

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20. Mr. Apostolakis filed an unsecured Proof of Claim in the amount of $180,000.00 

for “money loaned.” Proof of Claim 11-1. 

21. Mr. Apostolakis also filed a Motion for Relief from the Automatic Stay “to file a 

petition in the Florida Probate Court, and/or initiate other litigation in Florida, to determine the 

interest of the heirs related to the subject property. . . .” Case No. 18-13607-BFK, Docket No. 29 

at 3. 

22. The Trustee opposed the Motion. Docket No. 32. 

23. The Court denied the Relief from Stay Motion, finding that this Court had 

exclusive jurisdiction to determine whether the Debtor’s one-fifth interest in the Property was 

property of the bankruptcy estate, and that the Trustee’s interest in the Property, if any, could be 

prejudiced by any findings made by the Probate Court in Florida. Docket No. 43. 

24. Mr. Apostolakis then filed this Adversary Proceeding to determine his interest in 

the Property. Case No. 20-01068-BFK, Docket No. 1. 

Conclusions of Law 

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Order of 

Reference entered by the U.S. District Court for this District on August 15, 1984. This is a core 

proceeding under 28 U.S.C. §§ 157(b)(2)(A) (matters concerning the administration of the 

estate) and (O) (proceedings affecting the liquidation of assets of the estate). 

The Court rejects the Plaintiff’s argument that the probate exception to federal 

jurisdiction applies here. This is a core proceeding to determine property of the estate under 

Bankruptcy Code Section 541(a) and to determine the Trustee’s rights under Section 544 of the 

Code. The Supreme Court has held that the probate exception is a narrow one, allowing state 

probate courts to undertake “the probate or annulment of a will[,] the administration of a 

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decedent's estate[, and] precludes federal courts from endeavoring to dispose of property that is 

in the custody of a state probate court.” Marshall v. Marshall, 547 U.S. 293, 311-12 (2006). 

However, the probate exception “does not bar federal courts from adjudicating matters outside 

those confines and otherwise within federal jurisdiction.” Id. at 312. In Lee Graham Shopping 

Center, LLC v. Estate of Kirsh, 777 F.3d 678, 681 (4th Cir. 2015), the Fourth Circuit held that 

the probate exception only applies where the federal court is called upon “to probate a will, to 

annul a will, to administer a decedent’s estate; or to dispose of property in the custody of a state 

probate court.” In this case, the Court determines in Part I, below, that title to the Property was 

vested in the heirs, including the Debtor in this case, as of the filing of the bankruptcy case, not 

in the Probate Estate. The Court finds, therefore, that the probate exception does not apply. 

I. Counts I, II, and III - Declaratory Judgment. 

Counts I, II, and III all seek essentially the same relief – a determination that the Property 

is not property of the bankruptcy estate. See Complaint, Count I (“Is the Real Property Part of the 

Bankruptcy Estate?”), Count II (“The Real Property Remains Titled in [the] Mother’s Name”), 

and Count III (“The Real Property Belongs to Ronald Apostolakis”). The Court will address 

these Counts together. 

When a bankruptcy case is filed an estate is created which includes “all legal or equitable 

interests of the debtor in property in property . . . wherever located and by whomever held. . . .” 

11 U.S.C. § 541(a). The Court looks to applicable non-bankruptcy law, here that of the State of 

Florida, to determine the ownership interests of the parties in the Property. Butner v. United 

States, 440 U.S. 48, 55 (1979) (“Property interests are created and defined by state law. Unless 

some federal interest requires a different result. . . .”) This turns in part on whether title to the 

Property devolved to Genevieve’s heirs upon her death, or whether legal title passed into the 

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Probate Estate. This threshold inquiry is important for the resolution of the second question, 

below, regarding the Trustee’s rights in the Property. If Ms. Wiggins had only an interest in the 

Probate Estate when she filed for bankruptcy, the Trustee’s rights may not be as strong as they 

would be if she held title to the real property. Compare Wells Fargo Funding v. Gold (In re 

Taneja), 432 B.R. 216, 220-21 (E.D. Va. 2009) (equitable claims to real property subject to 

Trustee’s rights under Bankruptcy Code Section 544(a)(3)), with Burke v. Salahi (In re Salahi), 

2012 WL 3249550, at *6-7 (Bankr. E.D. Va. 2012) (trustee’s rights under Bankruptcy Code 

Sections 544(a)(1) and (2) in personal property are subject to fraudulent transfer claims). 

Under Florida law, “[a]ny part of the estate of a decedent not effectively disposed of by 

will passes to the decedent’s heirs. . . .” Fl. St. § 732.101(1). The case law is clear that title to 

real property vests in the heirs at the time of death. Slater v. Slater, 437 So.2d 1110 (Fla. 5th 

DCA 1983) (“The title to real property owned by an intestate decedent descends at death directly 

to the heirs subject to administration of the estate.”); Ray v. Rotella, 425 So.2d 94, 96 (Fla. 5th 

DCA 1982) (“the title to the property of an intestate decedent passes at death directly to the heirs 

subject to the administration of the estate”); Grobard v. Grobard, 382 So.2d 117, 118 (Fla. 3d 

DCA 1980). The court in Ray v. Rotella described the probate estate’s interest in the property of 

a decedent as “limited rights to possession of, and power over the title to, the property of a 

decedent.” 425 So.2d, at 96. The Court explained these limited powers as follows: 

The personal representative has limited rights to possession of, and power over 

the title to, the property of a decedent. If necessary for purposes of administration, 

the personal representative has a right to possession and control of the decedent's 

property, except the homestead. § 733.607, Fla.Stat. (1981). The powers of the 

representative over the property of the estate are limited. § 733.612, Fla.Stat. 

(1981). In the absence of a will, the personal representative possesses the estate 

property only for the purposes of payment of debts; family allowances; estate and 

inheritance taxes; claims, charges and expenses of administration; to enforce 

contributions; to equalize advances; and for distribution. § 733.608, Fla.Stat. 

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(1981). The personal representative does have certain powers of 

distribution. See §§ 733.608(3), 733.612(26), and 733.810, Fla.Stat. (1981). 

Id.

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 The Plaintiff argues that “the beneficiaries do not really get ‘title,’ and the ‘distribution’ 

only occurs when the asset is distributed or when the PR’s term comes to an end (which 

effectively distributes the asset).” Pl. Mem. at 3. In the Plaintiff’s view, “until the Probate Estate 

is fully administered[,] the title [to the] Property has not passed on to the heirs and all estate 

matter[s] must be resolved and administration of Probate Estate completed.” Id. This argument, 

however, confuses the completed administration of the Probate Estate with title to the Property. 

The opinion in Ray v. Rotella made this clear: “since the heirs have already inherited the title, 

the distribution to them is not of the title but is of the personal representative’s rights and is 

legally more in the nature of a formal termination of the possession and power of divestment that 

exists in the personal representative during administration.” 425 So.2d, at 96 (emphasis added). 

The Court finds, therefore, that Ms. Wiggins had title to a one-fifth interest in the 

Property as of the death of Genevieve Apostolakis on November 1, 2016. 

II. Count IV and V – Constructive Trust and Resulting Trust. 

Counts IV and V seek the imposition of a constructive trust and a resulting trust, 

respectively, in the Property. In order to impose a constructive trust under Florida law, the 

Plaintiff must demonstrate by clear and convincing evidence: (1) the existence of a promise 

express or implied, (2) transfer of the property and reliance thereon, (3) the existence of a 

confidential relationship, and (4) unjust enrichment. Silva v. de la Noval, 307 So.3d 131, 134 

(Fla. 3d DCA 2020); Abreu v. Amaro, 534 So.2d 771, 772 (Fla. 3d DCA 1988). A resulting trust 

arises where “a person furnishes money to purchase property in the name of another, with both 

4

 This is consistent with Mr. Dipuzzo’s testimony that the Property is not part of the probate estate. 

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parties intending at the time that the legal title be held by the named grantee for the benefit of the 

unnamed purchaser of the property.” Petithomme v. Petithomme, 232 So.3d 1058, 1061 (Fla. 3d 

DCA 2017); Key v. Trattmann, 959 So.2d 339, 342–43 (Fla. 1st DCA 2007). Both types of 

claims, in this case, represent an unrecorded, equitable interest in property. 

The Trustee, however, has the rights of a bona fide purchaser of the Property without 

notice of Mr. Apostolakis’ unrecorded, equitable interests. 11 U.S.C. § 544(a)(3). The question is 

whether under Florida law, assuming that Mr. Apostalakis has demonstrated that he is entitled to 

a constructive trust or a resulting trust, a bona fide purchaser without notice of these interests 

would take title free and clear of them. The Court finds that, in this contest, the bona fide 

purchaser wins. 

Under Florida law, “real property is presumed to be held as it is titled unless the debtor is 

able to rebut the strong presumption in favor of a recorded deed.” Sanchez-Villalba v. Herkert, 

No. 12–23199–CIV, 2013 WL 537496, at *4 (S.D. Fla. Feb. 12, 2013) citing Reasoner v. 

Fisikelli, 153 So. 98, 105 (Fla. 1934). The Sanchez-Villalba case involved circumstances similar 

to those in this case. In Sanchez-Villalba, the Debtor asserted that her father put title in her, her 

mother’s, and her sibling’s names for estate planning purposes, but that she only had bare legal 

title and not equitable title. Id. at *1. The District Court rejected this claim, holding “under the 

Florida Recording Statute, Fla. Stat. § 695.01, bona fide purchasers prevail over unrecorded 

equitable interests.” Id. at *4 See also In re Corzo, 406 B.R. 154, 161 (Bankr. S.D. Fla. 2008) 

(“Under Florida's recording statute, Fla. Stat. § 695.01, a bona fide purchaser of real property 

takes precedence over unrecorded equitable interests.”); In re Loewen Group Int’l, 292 B.R. 522, 

527 (Bankr. D. Del. 2003) (“a bona fide purchaser of real property under Florida law may avoid 

an unrecorded interest”); Dubai Islamic Bank v. Attorneys’ Title Ins. Fund, 778 So.2d 413 (Fla. 

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3d DCA 2001) (beneficiary of a constructive trust holds an unrecorded interest that is inferior to 

the interest of a bona fide purchaser). 

The Plaintiff’s argument on this issue is essentially a restatement of his argument on the 

first question, above. He asserts that “we are not yet there,” and that the issues “should continue 

to be decided by the pending state court proceedings.” Def. Mem. at 8-9. He further argues that 

this Court cannot address whether the Trustee has the powers of a bona fide purchaser until it is 

determined by the Florida Probate court whether the Plaintiff owns the entire Property or not. Id.

But, this Court has decided, above, that it has jurisdiction to decide the issues, and that a onefifth title to the Property vested in Ms. Wiggins as of the date of Genevieve’s death. There is no 

real legal argument that the Trustee’s powers as a bona fide purchaser are subject to the 

Plaintiff’s unrecorded, equitable interests in the Property.5 

The Court holds, therefore that the Trustee’s rights as a bona fide purchaser without 

notice are superior to Mr. Apostolakis’ equitable claims in the property. Judgment will be 

entered for the Trustee. 

III. Count VI – Determination of Claim. 

The parties agreed at the trial that Count VI is not ripe for a decision because the Trustee 

has not objected to Mr. Apostolakis’ proof of claim. The Court, therefore, will dismiss Count VI 

without prejudice. 

5

 The case of In re Halabi, 184 F.3d 1335 (11th Cir. 1999), upon which the Plaintiff relies, is distinguishable.

Halabi involved the Chapter 7 Trustee’s attempt to avoid the assignment of a mortgage against the Debtor’s real 

property. The Eleventh Circuit held that, notwithstanding the Trustee’s powers under Section 544, the bankruptcy 

estate had no interest in the mortgage itself, so the assignment of the mortgage could not be avoided. 184 F.3d, at 

1337 (“the assignment of the perfected mortgage—from Republic to Farragut, from Farragut to Atlantic and, finally, 

from Atlantic to Federal—did not involve the transfer of any property belonging to the debtor or to the debtor's 

estate. In each instance, the assignment was merely the transfer of one mortgagee’s interest to a successor 

mortgagee.”) 

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Conclusion 

For the foregoing reasons, the Court will enter a separate Judgment Order under which: 

A. Judgment will be granted in favor of the Trustee. The Court will declare that Ms. 

Wiggins’ one-fifth interest in the Property is property of the bankruptcy estate under Counts I, II, 

and III. 

B. Judgment also will be entered for the Trustee denying the Plaintiff’s request for 

the imposition of a constructive trust or a resulting trust under Counts IV and V. 

C. Count VI will be dismissed without prejudice. 

D. The Clerk will mail copies of this Memorandum Opinion, together with the 

accompanying Judgment Order, or will provide cm-ecf notice of their entry, to the parties below. 

Date: _____________________ ___________________________________ 

 Brian F. Kenney 

Alexandria, Virginia United States Bankruptcy Judge 

Copies to: 

Ronald Apostolakis 

3627 Embassy Lane 

Fairfax, VA 22030 

Plaintiff 

George LeRoy Moran, Esquire 

4041 University Drive, Suite 301 

Fairfax, VA 22030-3410 

Counsel for Plaintiff 

Donald F. King, Esquire 

1775 Wiehle Avenue, Suite 400 

Reston, VA 20190 

Defendant 

Alexander McDonald Laughlin, Esquire 

1775 Wiehle Avenue, Suite 400 

Reston, VA 20190 

Counsel for Defendant 

Jul 14 2021 /s/ Brian F Kenney

Entered On Docket: July 14, 2021

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