Harrington v. Simmons (In re Simmons)
Harrington v. Simmons (In re Simmons)
Opinion of the Court
MEMORANDUM OF DECISION ON MOTION OF UNITED STATES TRUSTEE FOR PARTIAL SUMMARY JUDGMENT
William K. Harrington, the United States Trustee for this region (“UST”), has moved for summary judgment on counts I and III of his complaint seeking an order denying Michael J. Simmons, the defendant here and the debtor in the main case, a bankruptcy discharge. Mr. Simmons opposes the motion.
Facts
The material facts are undisputed and are taken from those facts in the UST’s statement of undisputed facts and those allegations in the complaint which Mr. Simmons admits are correct, from the transcript of Mr. Simmons’ July 25, 2011, deposition taken by the trustee pursuant to Fed. R. BamolP. 2004 and from the schedules of assets and liabilities and statement of financial affairs (“SOFA”) filed by Mr. Simmons in his bankruptcy case.
Mr. Simmons graduated from high school around 1995 and after a year or two of college at the University of Massachu
In 2006, with Mr. Kunz’s assistance, Mr. Simmons began investing in residential rental properties.
On December 7, 2010, Mr. Simmons filed his schedules of assets and liabilities and his SOFA in support of his bankruptcy petition. Schedule I indicates that Mr. Simmons is unemployed and has no income while schedule J reflects expenses of $1,572.96 a month. Mr. Simmons lives with family members who provide for all of his household expenses.
On Form B22A, the so-called means test, filed by Mr. Simmons in the main ease, Mr. Simmons reported $314.29 in net rent and other real property income per month for the six months preceding the filing of his bankruptcy petition. His SOFA indicates “negative income” for 2008 (-$33,619.00) and 2009 (-$26,619.00) and no income for 2010.
On schedule A, Mr. Simmons listed ownership interests in five properties:
a.107-111A Church Street, Unit 2, (Whitinsville) Northbridge, Massachusetts;22
b. 3-5 Johnson Street, Fitchburg, Massachusetts;
c. 50-60 Prichard Street, Fitchburg, Massachusetts;
d. 62-64 Prichard Street, Fitchburg, Massachusetts; and
e. 99-105 Church Street, (Whitinsville) Northbridge, Massachusetts.
Mr. Simmons’ statement of intent filed with his schedules and SOFA indicates that he intends to surrender the five properties.
According to schedule A and the SOFA, the three Fitchburg properties have been in receivership since March 2010. In addition, Mr. Simmons’ SOFA indicates that on November 10, 2009, he transferred a one-third interest in the three Fitchburg properties for no consideration to Mr. Kunz, who is described in the SOFA as a “business partner.” The SOFA also reflects that at the same time, Mr. Simmons transferred to Mr. Kunz one-third interests in properties located at 348 Elm Street and 158 Prichard Street in Fitchburg for no consideration.
In addition to the real estate listed on schedule A, schedule B indicates that Mr. Simmons owns or owned a 100% membership interest in William T.C. XI, LLC (“T.C. XI”); a 25% membership interest in William XI Properties Series, LLC (“Properties Series”) and “25% Stock” of Caleb Management Corporation (“Caleb Management”). According to the SOFA, T.C. XI and Properties Series are real estate holding companies while Caleb Manage
The $3,424,554.13 in unsecured debts listed by Mr. Simmons in schedule F includes $3,236,768.85 which is described as deficiencies on various mortgages or deficiencies arising after foreclosure associated with multiple properties.
On December 17, 2010, the UST requested Mr. Simmons to provide to him copies of certain documents related to his financial condition and business transactions, including bank account statements, canceled checks, and state and federal income tax returns. In response to the UST’s requests, Mr. Simmons produced, among other things, copies of his federal income tax returns for the years 2007, 2008 and 2009. Each return included a schedule E which reports “Supplemental Income and Loss” from rental real estate. Each schedule E to the tax returns listed only one rental real estate property, a condominium unit located at 111 Church Street in Northbridge, Massachusetts, and for which gross income of $3,000, $6,000 and $11,400, respectively, was reported.
On July 25, 2011, Richard King, an assistant UST, conducted an examination of Mr. Simmons pursuant to Fed. R. BanKR.P. 2004. Following the conclusion of Mr. Simmons’ rule 2004 examination, Mr. King requested “rent rolls or ledgers evidencing the amount of rents collected from the various rental properties; an accounting of income earned and the disposition of proceeds, including bank statements and canceled checks; and copies of any financial statements or reports submitted to any lender... ,”
On April 13, 2012, the UST commenced this adversary proceeding seeking pursuant to Bankruptcy Code § 727(a)(3), (4)
Jurisdiction
The court has jurisdiction over this proceeding pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding under 28 U.S.C. § 157(b)(2)(J). Venue is proper pursuant to 28 U.S.C. § 1409, because this proceeding is brought in the district where the bankruptcy case is pending.
Discussion
Summary Judgment Standard
Summary judgment is appropriate if “the pleadings, the discovery and disclo
Bankruptcy Code § 727(a)(8)
A primary purpose of our federal bankruptcy system is to afford the honest but unfortunate debtor a financial fresh start through a discharge in bankruptcy. See Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Bank of Boston v. Burr, 160 F.3d 843, 847 (1st Cir. 1998). In furtherance of this goal courts generally have adopted a view that exceptions to discharge must be narrowly construed with all doubts resolved in favor of the debtor. See, e.g., Palmacci v. Umpierrez, 121 F.3d 781, 786 (1st Cir. 1997); Martin v. Bajgar, 104 F.3d 495, 498 (1st Cir. 1997); Century 21 Balfour Real Estate v. Menna, 16 F.3d 7, 9 (1st Cir. 1994). “The reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural.” Boroff v. Tully (In re Tully), 818 F.2d 106, 110 (1st Cir. 1987) (internal quotation marks omitted). But as the Supreme Court has noted “in the same breath that we have invoked this ‘fresh start’ policy, we have been careful to explain that the [Bankruptcy] Act limits the opportunity for a completely unencumbered new beginning to the honest but unfortunate debtor.” Gro-gan, 498 U.S. at 286-87, 111 S.Ct. 654 (internal citations and quotation marks omitted). “[T]he very purpose of certain sections of the law ... is to make certain that those who seek the shelter of the bankruptcy code do not play fast and loose with their assets or with the reality of their affairs.” Palmacci, 121 F.3d at 786.
One of those sections, Bankruptcy Code § 727(a)(3), provides that the court shall grant 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.” Peterson v. Scott (In re Scott), 172 F.3d 959, 969 (7th Cir. 1999).
*169 The purpose of § 723(a)(3) of the Bankruptcy Code, and its predecessor, § 14(e)(2) of the Bankruptcy Act, is to ensure that dependable information is supplied to the Trustee and to creditors on which they can rely in tracing the Debtor’s financial history. The Trustee and creditors are entitled to complete and accurate information showing what property has passed through the Debt- or’s hands during the period prior to his bankruptcy.
Tucker v. Devine (In re Devine), 11 B.R. 487, 488 (Bankr.D.Mass. 1981). See also Scott, 172 F.3d at 969. While the statute does not require flawless recordkeeping, a debtor must produce accurate written information from which his financial picture can be ascertained. Id.
The list of offending acts in § 727(a)(3) is stated in the disjunctive. A debtor who conceals or destroys or mutilates or falsifies or fails to keep or fails to preserve records necessary to present a complete financial picture without justification for such behavior runs afoul of the section. And as the court in Scott emphasized, the words “keep” and “preserve” are not synonymous. Preserve means to retain a record after its creation. Lassman v. Hegarty (In re Hegarty), 400 B.R. 332, 342 (Bankr.D.Mass. 2008). “ ‘[K]eep’ has the same meaning it would have in phrases such as ‘to keep a diary’ or ‘keep a record,’ that is, to maintain a record by entering it in a book. Otherwise, the repetition of the word ‘preserve’ is superfluous, a disfavored result.” Scott, 172 F.3d at 969 (citing Mackey v. Lanier Collection Agency & Sen)., 486 U.S. 825, 837, n. 11, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988)).
As with other challenges to discharge, the plaintiff bears the burden of establishing a prima facie case by a preponderance of the evidence. Grogan, 498 U.S. at 286, 111 S.Ct. 654, 112 L.Ed.2d 755, CM Temporary Servs., Inc. v. Bailey (In re Bailey), 375 B.R. 410, 415 (Bankr.S.D.Ohio 2007). This burden is not an onerous one and can be carried by evidence of the general nature of the debtor’s business or personal affairs, the types of transactions for which documents are sought and how the missing documents might shed light on the debtor’s financial condition. Id. “Congress’ use of the word ‘might’ emphasizes its intended lack of rig- or in the statutory standard. And the statute recognizes the practical reality that debtor is the gatekeeper of his or her own documents and information.” Strzesynski v. Devaul (In re Devaul), 318 B.R. 824, 834 (Bankr.N.D.Ohio 2004). When determining the adequacy of records produced, the court can consider the debtor’s education, business experience, sophistication, and the types of records typically preserved or kept in the particular business in which the debtor is engaged. Bailey, 375 B.R. at 415.
In some cases, this may require opinion testimony by lay witnesses, Fed.R.Evid. 701, or qualified expert witnesses, Fed. R.Evid. 702. In others, the simplicity of the debtor’s circumstances and the nature of the missing recorded information may be so basic as to allow the court to otherwise draw the conclusion on its own that the missing records are inherently such that one ‘might’ be able to ascertain a debtor’s financial condition or business transactions from them.
Devaul, 318 B.R. at 833-34.
Section 727(a)(3) allows a debt- or to avoid the harsh consequences of failing to keep and maintain records by proving the failure justified.
The issue of justification depends largely on what a normal, reasonable person would do under similar circumstances. The • inquiry should include the education, experience and sophistication of*170 the debtor; the volume of the debtor’s business; the complexity of the debtor’s business; the amount of credit extended to debtor in his business; and any other circumstances that should be considered in the interest of justice.
Meridian Bank, 958 F.2d at 1231 (quoting In re Wilson, 33 B.R. 689, 692 (Bankr.M.D.Ga. 1983)).
It is a question in each instance of reasonableness in the particular circumstances. Complete disclosure is in every case a condition precedent to the granting of discharge, and if such a disclosure is not possible without the keeping of books or records, then the absence of such amounts to that failure to which the act applies.
Therefore, while a debtor may justify his failure to keep records in some cases, a discharge may be granted only if the debtor presents an accurate and complete account of his financial affairs.
Razzaboni v. Schifano (In re Sehifano), 378 F.3d 60, 68 (1st Cir. 2004) (internal quotation marks and citations omitted). In Devaul the court reviewed several circumstances in which courts have applied the justification standard:
Applying this objective standard, courts have rejected a variety of justifications advanced under § 727(a)(3): small size of law practice, Id. at 1232; insufficient income to require filing of tax return did not justify failure to keep other records, Strbac, 235 B.R. at 884-85; tax protester’s subjective belief that there is no obligation to file tax returns, Hall, 174 B.R. at 215; chemical dependency and gambling addiction, Dolin, 799 F.2d at 253; related entities are small and closely held, and underlying source documents all exist but are just disorganized, Womble, 289 B.R. at 858; records in possession of wife and others, The Cadle Company v. Terrell, No. 4:01-CV-0399-E, 2001 U.S.Dist. LEXIS 21944, 2002 WL 22075 (N.D.Tex. January 7, 2002); and lawyer’s failure to pass bar exam and being made president of company only because of family nepotism, Wazeter, 209 B.R. at 230-31.
Other debtors have simply failed to prove the following asserted justifications by a preponderance of the evidence: written records or oral testimony otherwise establish debtor’s financial condition, Krohn v. Frommann (In re Frommann), 153 B.R. 113, 118 (Bankr.E.D.N.Y. 1993) and Colonial Bank v. Wynn (In re Wynn), 261 B.R. 286, 303-04 (Bankr.M.D.Ala. 2001); other physicians keep the records the same way, Buzzelli, 246 B.R. at 107-08; records were lost in moves or stolen in burglaries, Id. and Shappell’s Inc. v. Perry (In re Perry), 252 B.R. 541, 548 (Bankr.M.D.Fla. 2000); and mice ate records, Costello, 299 B.R. at 898.
Other courts have accepted the following justifications for a debtor’s failure to keep records under the particular circumstances of the case: debtor wife reasonably relied on husband to keep records, Cox, 41 F.3d at 1298-1300; debtor running small concrete business was poorly educated, unsophisticated and had little business experience, Eggert v. Sendecky (In re Sendecky), 283 B.R. 760, 764 (8th Cir. BAP 2002); destruction of records not debtor’s fault and debtor lacked ability or knowledge to establish or maintain bookkeeping system for real estate business, Hunter v. Kinney (In re Kinney), 33 B.R. 594, 596 (Bankr.N.D.Ohio 1983); self-employed debtor running gas station with very little formal education was justified in keeping records that were not “a paragon of clarity.” Energy Marketing Corp. v. Sutton (In re Sutton), 39 B.R. 390, 398 (Bankr.M.D.Tenn. 1984); medi*171 cal problems arising from auto accident, Benningfield, 109 B.R. at 293; and unsophisticated businesswoman relied on bookkeeper to maintain books and records, G & J Investments v. Zell (In re Zell), 108 B.R. 615 (Bankr.S.D.Ohio 1989).
Id. at 837-38.
Bankruptcy Code § 727(a)(5)
Under Bankruptcy Code § 727(a)(5) a debtor may be denied a discharge if he “fails to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor’s liabilities.” The debtor’s explanation must satisfy two concerns. “First, it must be supported by at least some corroboration. Second, the corroboration must be sufficient to eliminate the need for any speculation as to what happened to all of the assets.” Aoki v. Atto Corp. (In re Aoki), 323 B.R. 803, 817 (1st Cir. BAP 2005). A “discharge will be denied when a debtor makes only a vague evidentiary showing that the missing assets involved have been used to pay unspecified creditors, or where the debtor fails to provide corroborative documentary evidence to confirm his explanation.” Id.
Applying the Law to the Facts
Mr. Simmons disputes the UST’s assertion that he failed to keep accurate records sufficient to give the UST and his creditors a clear picture of his finances for the period before and up to his bankruptcy petition date. In a seven sentence affidavit he says that he gave the UST everything he had or could reasonably recover from others who controlled the documents and that there is nothing more for him to give because he was not involved in the management of any of the properties. He claims that he was a “dupe to Mr. Kunz and his associates.”
Mr. Simmons’ inability to document the income and expenses for the properties he owned, financed, retained individuals or entities to manage and for which he collected rents over a period of years is shocking and disturbing. The same is true for his inability to document the basis for being unable to pay the more than $4 million of debt he brings into his bankruptcy case.
It is only in the exceptional circumstance that I would deny a party his day in court to establish justification for his conduct, especially in a fact intensive inquiry involving discharge denial. But this is such a circumstance. I am not basing my decision on Mr. Simmons credibility or lack thereof. Taking Mr. Simmons at his word that he gave the UST all the records he had or could get his hands on and that he was merely a patsy for Mr. Kunz, his failure to have kept or maintained records that would establish a clear picture of his financial status prior to and on the date of his bankruptcy filing remains unjustifiable under the circumstances.
Mr. Simmons is a high school graduate with some level of college education. He dropped out of college for the very purpose of learning the real estate business from Mr. Kunz, with whom he worked for many years. During the period prior to his bankruptcy Mr. Simmons owned at least 27 pieces of real estate, borrowing millions of dollars in connection with these properties. If Mr. Simmons was so foolish or naive as to think that because he was acting as a shill for Mr. Kunz he would be excused from the basic responsibilities imposed on any owner of real estate, he must unfortunately be required to suffer the consequences of his poor judgment. Mr. Simmons’ choice to act as Charlie McCarthy to Mr. Kunz’s Edgar Bergen no more justifies his inability to account for the
Conclusion
Because Mr. Simmons failed without justification to keep and maintain complete and accurate financial records or to present any corroborating evidence from which the UST, his chapter 7 trustee or creditors could satisfy themselves as to his financial condition, business transactions or the losses he incurred, I will grant the UST’s motion for summary judgment as to counts I and III of his complaint.
A separate judgment will enter denying Mr. Simmons’ discharge pursuant to Bankruptcy Code § 727(a)(3) and § 727(a)(5).
. Transcript of the July 25, 2011 Fed. R. Bankr.P. 2004 examination of Michael J. Simmons ("Simmons Tr.”) at 16-17, 20.
. Id. at 19 and 22.
. Id. at 21-22.
. Id. at 21.
. Id. at 32.
. Statement of Undisputed Facts at ¶ 30.
. Simmons Tr. at 29-30.
. Id. at 32.
. Statement of Undisputed Facts at 11 31.
. Simmons Tr. at 50.
. Id. at 51.
. Id. at 50-56.
. Id.
. Id. at 58.
. Id. at 57.
. Id.
. Id. at 57 and 65.
. Id. at 65.
. Id.
. Id. at 51.
. Statement of Undisputed Facts at ¶ 47. Mr. Simmons testified at his Rule 2004 examination in July 2011 that he was not employed at that time. Simmons Tr. at 13.
. Mr. Simmons owned three units that share the address of 107-111A Church Street in Whitinsville. According to Mr. Simmons’ response to question 5 of the SOFA, Litton Loan Service apparently foreclosed or otherwise received possession of one of the units although the response simply identifies the property as "107-111A Chruch [sic] Street, Whitinsville, MA.”
.The properties reflected on schedule F giving rise to deficiency liabilities are:
a. 211-213 Park Street, Gardner, Massachusetts;
b. 7-11 Glazier Street, Gardner, Massachusetts;
c. 153 & 158 Prichard Street, Fitchburg, Massachusetts;
d. 348 Elm Street, Fitchburg, Massachusetts;
e. 66 Mechanic Street, Fitchburg, Massachusetts;
f. 94 Daniels Street, Fitchburg, Massachusetts;
g. 19 Ward Street, Worcester, Massachusetts;
h. 107-111A Church Street, Units 1 and 3, Whitinsville, Massachusetts;
i. 129 Elm Street, Fitchburg, Massachusetts;
j. 215 & 217 Beacon Street, Worcester, Massachusetts;
k. 69 & 71 Maywood Street, [no town listed];
l. 32 Birch Street, [no town listed];
m. 26-30 Crescent Street, [no town listed];
n. 6-8 Marion Street, [no town listed];
o. 74 Abbott Street, Gardner, Massachusetts
p. 99 Church Street, [no town listed but presumably Whitinsville]; and
q. Ill Church Street, [no town listed but presumably Whitinsville].
. Updated Affidavit of Richard King, Esq. [docket # 61] at ¶ 2.
. Id.
. Id. at ¶ 4. See also Updated Affidavit of Sophia L. Selzo [docket #61] at ¶ 3 and Affidavit of Evelyn Rossi [docket #61] at ¶ 3.
. According to the updated affidavit of Sophia L. Selzo of the UST’s staff, the records produced by Mr. Simmons included insurance binders and cancellation of insurance notices for some of the properties; inspection letters for repairs to be made to certain properties; an insurance binder for a 2002 BMW 3251 for policy year 7/3/07-7/3/08; an insurance proposal for Caleb Management; checks showing payments to McLaughlin Insurance Company; copies of some bank checks from Avidia Bank with no corresponding bank statements and not for the full two year period requested; snow removal receipts; list of rents collected for some of the properties and for less than the two year period requested; copies of purchase and sale agreements and HUD settlement statements for some of the properties purchased by Mr. Simmons; a copy of an 8/30/07 check in the amount of $27,000 and payable to "M. Simmons”; an 8/21/07 check from Prospect Investment, Inc. in the amount of $39,000 payable to "M. Simmons”; and miscellaneous receipts for purchases; documents relating to the purchase or lease of a BMW. According to the affidavit of Evelyn Rossi of the UST’s staff, Mr. Simmons also produced copies of deposit slips from Digital Credit Union, Bank of America, Avidia Bank and Marlborough Savings Bank for some part of the two years prepetition but with no bank statements; a typewritten "money summary” apparently prepared by Mr. Simmons; copies of handwritten notes; a note signed by Michael Fronte "receiving $17,000”; copy of a $10,000 treasurer's check to “MPAT” (presumably the Massachusetts Property Assistance Trust) from Michael Simmons re: “Loan Modifications”; copies of a few rent checks; a copy of a record of a wire transfer from Morton Simmons’ Fidelity Investment Account; email correspondence and wire instructions from Mr. Simmons to the Massachusetts Property Assistance Trust; various store receipts and notes; copies of closing documents for some of the properties owned by Mr. Simmons; various repair bills and receipts from Home Depot; real estate taxes and water and sewer bills for some properties; copies of court documents; certain insurance notices; and copies of canceled checks from Morton Simmons, Jr.
.See Affidavit of Michael J. Simmons in Support of Opposition to Motion for Summary Judgment [# 31].
Reference
- Full Case Name
- In re Michael J. SIMMONS, Debtor. William K. Harrington, United States Trustee v. Michael J. Simmons
- Cited By
- 3 cases
- Status
- Published