UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

In re: Case No. 19-16935-BKC-MAM

Renee Marie Bianca,

Debtor.

_________________________________/

Chapter 7

Eden Day Spa, Inc.,

Plaintiff.

Adv. Proc. No. 19-01332-MAM

v.

Renee Marie Bianca,

Defendant.

___________________________________/

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT (ECF NO. 13) AND 

SETTING PRETRIAL CONFERENCE

THIS MATTER came before the Court upon Plaintiff’s Motion for Final 

Summary Judgment on Counts II and III of its Complaint (ECF No. 13) (the “Motion”) 

(ECF No. 13) filed by Eden Day Spa, Inc. (“Eden”) and the response (ECF No. 21) 

Mindy A. Mora, Judge

United States Bankruptcy Court

_____________________________________________________________________________

ORDERED in the Southern District of Florida on March 10, 2020.

Case 19-01332-MAM Doc 35 Filed 03/10/20 Page 1 of 8
2

(“Response”) filed by the defendant/debtor, Renee Marie Bianca (“Debtor”). In 

addition to the Motion, Eden submitted numerous supplemental documents for the 

Court’s consideration. See, e.g. ̧ ECF Nos. 14, 15, 16, and 17. Collectively, these filings

constitute several hundred pages. 

On December 19, 2019, the Court directed the parties to submit briefing on 

the Motion. Debtor filed her Response, Eden filed a reply (ECF No. 31), and both 

parties submitted a joint pretrial stipulation of undisputed facts (ECF No. 26). After 

considering all documents filed by both parties, the Court denies Eden’s request for 

summary judgment because material facts remain in dispute. 

PROCEDURAL BACKGROUND AND COMPLAINT ALLEGATIONS 

Plaintiff’s complaint (ECF No. 1) (“Complaint”) asserts three causes of action: 

(i) nondischargeability pursuant to section 523(a)(6), (ii) objection to discharge 

pursuant to 11 U.S.C. § 727(a)(3), and (iii) objection to discharge pursuant to 11 

U.S.C. § 727(a)(4)(A). The Summary Judgment Motion seeks entry of judgment in 

favor of Plaintiffs on Counts II and III only. 

BACKGROUND

Eden employed Debtor as an aesthetician for many years. At some point 

during her employment, Debtor signed a non-compete agreement. Despite this 

agreement, Debtor started her own business offering facials and other spa services

after her work situation at Eden deteriorated. Eden sued in state court to enforce the 

terms of the non-compete. This litigation continued for several years pre-petition.

Case 19-01332-MAM Doc 35 Filed 03/10/20 Page 2 of 8
3

Immediately prior to filing her bankruptcy petition, Debtor supplemented her 

income by providing beauty services to clients within their own homes. Her clients

often paid for these services via Venmo or Zelle. During this bankruptcy case, Eden 

sought production of Debtor’s Venmo records (the “Venmo Records”) to determine 

whether Debtor properly accounted for this income in schedules and statements of 

financial affairs. 

Debtor initially failed to produce the Venmo Records but, after receiving 

clarification of the breadth of Eden’s document request, she apparently produced 

extensive records. In addition, Debtor’s original Schedule I erroneously failed to 

include any income disclosures. Upon discovery of the omission, however, Debtor

quickly filed amended schedules correcting the deficiency. 

The Complaint alleges that Debtor’s failure to produce the Venmo records and 

initial filing of incorrect information provides a basis for a denial of her discharge. In 

response, Debtor denies any malfeasance. She attributes the failure to produce to a 

mistaken interpretation of the document request and the inaccurate Schedule I to a 

technical error. 

CONCLUSIONS OF LAW

I. Jurisdiction

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) 

and 28 U.S.C. § 157(b). This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(I) & (J). 

II. Complaint

Plaintiff seeks relief under sections 523 and 727 of the Bankruptcy Code. 

Case 19-01332-MAM Doc 35 Filed 03/10/20 Page 3 of 8
4

Specifically, Count I of the Complaint alleges a claim for nondischargeabilty under 

11 U.S.C, § 523(a)(6). Counts II and III seek entry of a judgment denying Debtor’s 

discharge pursuant to 11 U.S.C. § 727(a)(3) and (a)(4)(A). The Motion seeks summary 

judgment only as to Counts II and III of the Complaint. 

III. Section 727 Standards 

a. § 727(a)(3)

Section 727(a)(3) (“§ 727(a)(3)”) provides that the Court shall grant the debtor 

a discharge, unless the debtor has “concealed, destroyed, mutilated, falsified, or failed 

to keep or preserve any recorded information, including books, documents, records, 

and papers, from which the debtor's financial condition or business transactions 

might be ascertained, unless such act or failure to act was justified under all of the 

circumstances of the case.” To successfully assert a claim under § 727(a)(3), the 

movant must prove that the debtor’s alleged destruction of documents or recordkeeping failure creates a situation in which it is “impossible to ascertain the financial 

condition and material business transactions of the debtor.” Butler v. Liu (In re Liu), 

288 B.R. 155, 161 (Bankr. N. D. Ga. 2002) (internal citations omitted). “Objections to 

discharge under § 727(a)(3) are not usually decided on summary judgment, as they 

normally require a fact intensive inquiry regarding the adequacy of the defendant's 

records.” Id. 

b. § 727(a)(4)(A)

Section 727(a)(4)(A) provides that the Court shall grant the debtor a discharge, 

unless the debtor knowingly and fraudulently, in or in connection with the case made 

Case 19-01332-MAM Doc 35 Filed 03/10/20 Page 4 of 8
5

a false oath or account. This subsection is “intended to ensure that adequate 

information is available to those interested in the administration of the bankruptcy 

estate without the need of examinations or investigations to determine whether the 

information is true.” Cadle Co. v. Leffingwell (In re Leffingwell), 279 B.R. 328, 338 

(Bankr. M.D. Fla. 2002) (internal citation and quotation marks omitted). Two 

elements must be proven in order to deny a debtor a discharge under § 727(a)(4)(A): 

“first, the debtor's oath or account must have been knowingly and fraudulently made, 

and second, it must be related to a material fact.” Rossi v. Dupree (In re Dupree), 336 

B.R. 490, 494 (Bankr. M.D. Fla. 2005). 

The most crucial aspect for a bankruptcy court’s consideration is whether the 

debtor has accurately and faithfully presented all material facts regarding the 

debtor’s financial condition. Leffingwell, 279 B.R. at 339. Because § 727(a)(4)(A) is 

intended to ensure that the chapter 7 trustee has ready access to all necessary facts, 

deliberate omissions by a debtor may trigger a denial of discharge. Id.; Chalik v. 

Moorefield (In re Chalik), 748 F.2d 616, 618 (11th Cir. 1984). 

There is a difference, however, between a debtor who deliberately seeks to 

obfuscate or mislead the court, and one who inadvertently fails to disclose assets in 

an initial filing. Dupree, 336 B.R. at 494. In discerning whether the debtor has 

demonstrated the requisite fraudulent intent to justify denial of discharge, the court 

should analyze whether the omissions or nondisclosures were part of a scheme on the 

part of the debtor to retain assets for his own benefit at the expense of his creditors. 

Id. A debtor is entitled to a discharge unless the court determines that the debtor 

Case 19-01332-MAM Doc 35 Filed 03/10/20 Page 5 of 8
6

engaged in fraudulent activity regarding his or her disclosure. Leffingwell, 279 B.R. 

339. 

IV. Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56(a), made applicable to 

bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056, the Court 

shall grant summary judgment “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.”

“When deciding summary judgment, the Court may look to materials in the record 

such as depositions, documents, affidavits or declarations, and admissions.” Certain 

Interested Underwriters at Lloyd’s, London v. AXA Equitable Life Ins. Co., 981 

F. Supp. 2d 1302, 1305-06 (S.D. Fla. 2013) (citing Fed. R. Civ. P. 56(c)). 

The Court “must view all the evidence and all factual inferences reasonably 

drawn from the evidence in the light most favorable to the nonmoving party.” Diaz 

v. Amerijet Int’l, Inc., 872 F. Supp. 2d 1365, 1368 (S.D. Fla. 2012) (quoting Stewart v. 

Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997))

(internal quotation marks omitted); see also Morton v. Kirkwood, 707 F.3d 1276, 1280 

(11th Cir. 2013). Finally, the moving party “always bears the initial responsibility of 

informing the . . . 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 Corp. v. Catrett, 477 U.S. 317, 323 (1986); see 

also Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314-15 (11th 

Case 19-01332-MAM Doc 35 Filed 03/10/20 Page 6 of 8
7

Cir. 2011). 

V. Genuine issues of material fact preclude entry of summary 

judgment 

After reviewing the record to date, the Court finds that many genuine disputes 

as to material facts exist. Specifically, the Court finds that the record does not 

illustrate the materiality of Debtor’s alleged non-disclosures, nor does it clarify any 

alleged impossibility of determining Debtor’s financial condition. To the contrary, the 

parties clearly dispute both these key aspects of the Court’s analysis. 

The Court discerns abundant issues of fact, including whether Debtor’s 

schedules were initially inadvertently filed with incorrect information and quickly 

corrected (as she contends) and whether Debtor’s initial failure to produce the Venmo 

Records to Eden arose from an intent to defraud the Court or her creditors. 

Separately, the Court observes that the chapter 7 trustee (the “Trustee”) fully 

analyzed Debtor’s case at the 341 meeting and issued a Report of No Distribution 

over six months ago. Since that date, the Trustee has not indicated that Debtor’s 

records demonstrate malfeasance. Although this inaction does not necessarily 

indicate that Debtor’s disclosures are sufficient, it does support a deeper analysis of 

whether the Debtor’s actions rise to a level sufficient to warrant denial of discharge, 

or if this adversary proceeding simply represents the continuance of a prepetition 

state court action. 

Because material facts remain in dispute, the Court must deny summary 

judgment. Upon completion of all pending discovery, the parties shall proceed to trial. 

Case 19-01332-MAM Doc 35 Filed 03/10/20 Page 7 of 8
8

CONCLUSION

With the Court being fully advised in the premises and for the reasons 

discussed above, the Court hereby ORDERS AND ADJUDGES that:

1. The Defendant’s Motion for Summary Judgment is DENIED. 

2. The pretrial conference will proceed on May 12, 2020 at 10:00 a.m. at 

the United States Bankruptcy Court, 1515 N. Flagler Drive, Courtroom A, 8th Floor, 

West Palm Beach, Florida 33401.

###

Copy to:

Mark S. Roher, Esq.

Law Office of Mark S. Roher, P.A.

150 S. Pine Island Road, Suite 300

Plantation, FL 33324

Attorney Roher is directed to serve this Order upon all parties to this Adversary 

Proceeding and file a conforming certificate of service. 

Case 19-01332-MAM Doc 35 Filed 03/10/20 Page 8 of 8