Harrison v. Mavashev (In re Mavashev)
Harrison v. Mavashev (In re Mavashev)
Opinion of the Court
Matthew Harrison, Jr. ("Plaintiff" or "Trustee") brought this adversary proceeding objecting to the discharge of Michael Mavashev (the "Debtor") pursuant to
JURISDICTION
This Court has jurisdiction of this core proceeding under
BACKGROUND
The Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code on December 24, 2014. In his bankruptcy, the Debtor seeks to discharge over $2.3 million in unsecured claims, all of which is identified as business debt. On May 31, 2017, the Trustee commenced this adversary proceeding seeking a judgment denying the Debtor a discharge pursuant to §§ 727(a)(2), (3), (4), (5), and (7). A trial was held on July 12, 2018, which focused on the Trustee's objection to discharge based on the Debtor's failure to keep or preserve records pursuant to § 727(a)(3) and on the Debtor's unsatisfactory explanation of the loss and deficiency of assets to meet the Debtor's liabilities under § 727(a)(5). The Trustee and the Debtor each called two witnesses during the trial. The Trustee offered the testimony of Abraham Kaufman, the principal of a corporation which has filed a $50,000 claim in the bankruptcy case, and of Russell Kranzler, the accountant retained by the Trustee to help administer the estate. The Debtor testified, and also called Jo Amar, a friend of the Debtor who briefly worked in the diamond business.
Plaintiff contends that, pursuant § 727(a)(3), the Debtor is not entitled to a discharge, because the Debtor concealed or failed to keep or preserve business records sufficient to allow parties in interest to ascertain the Debtor's financial condition. Plaintiff also asserts that the Debtor is not entitled to a discharge under § 727(a)(5) because the Debtor has failed to explain sufficiently the loss and deficiency of assets to meet his liabilities. (Joint Pre-Trial Order, 14-16, ECF No. 42.) The Debtor contends that he kept records to the best of his ability and that any inadequacy in his record keeping was attributable to inexperience. (Joint Pre-Trial Order, 13, ¶ 7 at (bb)-(ff), ECF No. 42.)
EVIDENCE PRESENTED AT TRIAL
Russell Kranzler, a Certified Public Accountant, also licensed as a forensic accountant certified in financial forensics, with over 40 years of experience as an accountant, testified as an expert on behalf of the Trustee. Mr. Kranzler testified that the records the Debtor provided were atypical for the type of business the Debtor was in and were "impossible to follow." (Tr. 39-42.)
*60440:1-14.) Mr. Kranzler further explained that maintaining records on an accrual basis is also important from a practical standpoint: "[W]hen you're looking at precious gems type of inventory he was handling ... it's a prudent business decision to be on an accrual basis so you know exactly what people owe you, what you owe to people and how much inventory and what type of inventory you have on hand." (Tr. 40:7-14.)
Mr. Kranzler testified that a business using an accrual method of recordkeeping maintains "an accounts receivable balance supported by books and records that show what that accounts receivable balance is....[They also have] an accounts payable balance that would support what's due and owing [to] the creditors." (Tr. 73:17-25.) In contrast to the accrual method, the cash method of recordkeeping shows money that has been received and money that has been disbursed, which provides an incomplete picture of the business because it "doesn't account for merchandise delivered or merchandise purchased [on credit]." (Tr. 74:4-7.)
Mr. Kranzler testified that a business such as the Debtor's should maintain a general ledger with a cash receipts journal, cash disbursements journal, accounts receivable journal, and a system of inventory control. (Tr. 40:18-41:5.) Mr. Kranzler further testified that an inventory control system would be particularly important for a diamond dealer because of the nature of the inventory he is handling: each stone is unique, identified by an individual numbered certificate, and each is a high value item. (Tr. 40:25-41:5.) Mr. Kranzler testified that he did not receive "any of these types of records from the Debtor." (Tr. 41:6-10.)
Instead, Mr. Kranzler testified, the Debtor provided him with a collection of documents in two bins containing invoices and bank statements. (Tr. 47:4-7.) The Debtor failed deliver the documents in any "kind of organized fashion." (Tr. 50:7-12.) Mr. Kranzler testified that when he inventoried the bins and attempted to sort, organize, and catalogue their contents, it became apparent that the invoices, which are normally numbered sequentially, were incomplete, contained gaps, and were not in order, which made it impossible to match them against payments. (Tr. 49:11-61:23.) As a result, Mr. Kranzler testified, he was unable to use the invoices provided by the Debtor to piece together the Debtor's books and records. (Tr. 51:13-16.)
In addition to the invoices, the Debtor also provided the Trustee with copies of his income tax returns for fiscal years 2010 through 2015, as well as bank statements (not including cancelled checks) for a that period. However, those documents provided no meaningful information about the Debtor's business. The tax returns, as noted above, were prepared on a cash basis, and therefore did not reflect the Debtor's accounts receivable or accounts payable. (Tr. 33:24-34:8.) Instead, the tax preparer recorded transactions based upon bank statements and cancelled checks (Tr. 34:18-19), which show only funds paid and received. (Tr. 35:3-11). Moreover, the Debtor did not provide copies of the canceled checks, and the write-up of transactions on the Debtor's tax returns did not identify the payee or check number involved, but simply reported the transactions as aggregate amounts. (Tr. 34:20-35:2.) The bank statements were equally unhelpful in understanding the Debtor's financial condition or business transactions, as they reflected receipts and disbursements, not identified by source or payee, and provided no information concerning receivables or payables. (Tr. 35:3-36:8.)
Also provided to the Trustee was a composition book in which the Debtor recorded *605some transactions. (Tr. 42:15-18; 74:22-75:2.) When asked on cross-examination whether the book contained business records or records of transactions, Mr. Kranzler testified as follows: "I don't know. It was impossible to follow it so I can't give you a credible answer. It could not be comprehended by anybody picking up that book and looking at it. It's not a normal business record. It was something that Mr. Mavashev kept for his own information and maybe he had an understanding of how that was looked at or viewed, but it's not a normal or typical business record." (Tr. 61:17-23.)
Mr. Kranzler testified that his review of the information the Debtor did provide, coupled with the schedules and claims filed in the bankruptcy case, led him to conclude that there are "at least 1.8 million dollars of goods that are unaccounted for." (Tr. 46:12-23.) This is because the Debtor's schedules, and the claims register, reflect claims of approximately $2.4 million for diamonds sold to the Debtor for which payment was not made. (Tr. 46:12-23.) If $2.4 million of merchandise was acquired by the Debtor, this should be reflected in inventory or receivables. The Debtor's schedule of assets, however, reflect no inventory and approximately $600,000 of "[u]npaid business debts." (Pet., Sch. B, ECF No. 1.) As a result, Mr. Kranzler concluded that "there's $1.8 million dollars of goods, at least 1.8 million dollars of goods, that are unaccounted for." (Tr. 46:21-23.) In short, Mr. Kranzler testified, "[i]t's literally impossible to reconstruct the records.... There should be a lot more inventory on hand than the records and the petition reflect." (Tr. 53:8-13.)
The Debtor testified about the origins and nature of his record keeping system. (Tr. 87-91.) The Debtor's late father taught him to take a book and write everything down. (Tr. 89-90.) The Debtor adopted this method because his "knowledge of computers was zero." (Tr. 89:23-90:2.) The Debtor acknowledged that while he tried to record all transactions in the book, "when you're alone in the business you cannot do everything." (Tr. 94:16-22.) The Debtor considered hiring a bookkeeper, but decided not to because "you have to pay at least $1,000 a person ...." (Tr. 94:16-22.) While the Debtor testified that he made his best efforts, he acknowledged that he was unable to record all transactions in his book. (Tr. 94:12-22.) The Debtor admitted that of those entries he did make, many did not include a date. (Tr. 223:18-20.) The crux of the Debtor's argument is that any deficiencies in his record keeping were because he was new to the country, had little computer skills, lacked business acumen, and worked too hard. (See, e.g., Tr. 309: 11-24.)
DISCUSSION
A. Denial of Discharge Under 11 U.S.C § 727(a)(3)
"(a) The court shall grant the debtor a discharge, unless-...
(3) 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."
"The fundamental policy underlying § 727(a)(3) is to insure that the trustee and the creditors receive sufficient information to enable them to trace the debtor's financial history, to ascertain the debtor's financial condition, and to reconstruct the debtor's business transactions."
*606Helms v Gangemi (In re Gangemi),
To determine whether a debtor's discharge must be denied pursuant to § 727(a)(3), a court must apply a two-step analysis. D.A.N. Joint Venture v. Cacioli (In re Cacioli),
B. Adequacy of the Records Produced
"It is up to the bankruptcy court's broad discretion to determine on a case by case basis whether the records produced by the debtor are sufficient." Sethi,
For a debtor to avoid a denial of discharge pursuant to § 727(a)(3), that debtor must demonstrate there is written evidence from which that debtor's present financial condition and reasonably recent business transactions may be ascertained with substantial completeness and accuracy. Jaroslawicz v. Steinberg (In re Steinberg), No. 17 Civ. 4724 (LGS),
The documents produced by the Debtor concerning his business are clearly insufficient to allow parties in interest to ascertain the Debtor's business transactions. Courts consistently hold that in order to adequately ascertain a debtor's financial condition, the debtor must provide documents from which individual business transactions can be identified and substantiated. E.g., Rossi v. Moreo (In re Moreo), No. 07-71258-478,
Here, the record demonstrates that the Debtor failed to keep or preserve information, sufficient to permit parties in interest to ascertain the Debtor's financial condition or the Debtor's business transactions. The Debtor kept an incomplete and disorganized collection of invoices, and recorded transactions in haphazard fashion in his book. (Pl.'s Ex. 7 (Record Book).) Some entries include a date, price, and item sold or bought, but many entries lack such information. (Tr. 223:10-24; 225:2-14.) The invoices produced are incomplete and insufficient. (Tr. 64:14-24.) The bank statements, which lacked cancelled checks, and tax returns, provide no information about payables and receivables. (Tr. 34:15-37:23.) Taken together, the records produced are grossly insufficient to permit the Trustee or creditors to identify or substantiate the Debtor's business transactions.
In assessing the adequacy of financial records, courts may consider: (1) whether the Debtor was engaged in business, and if so, the complexity and volume of the business; (2) the amount of the Debtor's obligations; (3) whether the Debtor's failure to keep or preserve books and records was due to the Debtor's fault; (4) the Debtor's education, business experience, and sophistication; (5) the customary business practices for record keeping in the Debtor's type of business; (6) the degree of accuracy disclosed by the Debtor's existing books and records; (7) the extent of any egregious conduct on the Debtor's part; and (8) the Debtor's courtroom demeanor. Frommann,
Consideration of the eight Frommann factors supports the conclusion that the Debtor failed to keep or maintain adequate records as required by § 727(a)(3). The Debtor owned and operated a diamond wholesale business, and engaged in numerous transactions dealing with highly valuable goods. The Debtor's petition lists about $2.4 million in unsecured claims, all of which represent claims of creditors who delivered diamonds to the Debtor, but did not receive payment. Although the Debtor testified that he maintained records to the best of his ability, his failure was not due to circumstances beyond his control. C.f. Pereira v. Young (In re Young),
C. The Debtor's Justification
Whether a debtor's failure to keep books and records is justified is "a question in each instance of reasonableness in the particular circumstances." Cacioli,
The Debtor here has offered two justifications for his record keeping practices. First, the Debtor stated that he relied on his father for advice and help. (Tr. 212:5-22 ("I didn't know how to handle the business the way [Mr. Kranzler] was saying.").) The second justification the Debtor offered was that he tried his best but the demands of his business limited his capacity to maintain complete and accurate records. (Tr. 222:21-24 ("I was - I had to sell. I had to write. I had to run for checks. I had to do a lot of things.").)
The Debtor's explanations fail, under § 727(a)(3), to justify the Debtor's failure to maintain adequate records. The Debtor's statement that, based upon his father's advice, he believed that his method of record keeping was adequate, has been found insufficient to justify inadequate record keeping. See Frommann,
The Debtor's explanation, that, in operating his business by himself, the Debtor was too busy to effectively create and maintain complete and detailed business records, has also been found insufficient. Hunt v. Steffensen (In re Steffensen),
For these reasons, the Debtor has not carried his burden to justify his failure to provide adequate records.
D. Denial of Discharge under 727(a)(5)
"(a) The court shall grant the debtor a discharge, unless-...
(5) the debtor has failed 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."
A number of courts have held that where the plaintiff has established that the debtor has taken possession of gems and has neither the gems nor the proceeds of their sale, a prima facie case for denial of discharge has been made out. Polinski,
Here, the Plaintiff has made a prima facie case for the denial of the Debtor's discharge pursuant to § 727(a)(5). The testimony of the Trustee's accountant established that the Debtor has "at least 1.8 million dollars of goods that are unaccounted for." (Tr. 46:12-23.) The Debtor has not met his burden to show "business like conduct and good faith in relation to the gems." Polinski,
For these reasons, the Debtor's discharge must be denied under § 727(a)(5).
CONCLUSION
For the reasons set forth above, the Debtor is denied a discharge. Because the Debtor's discharge must be denied under §§ 727(a)(3) and (5), it is not necessary to decide whether discharge should be denied based on other grounds. A separate order and judgment will be issued.
Unless otherwise indicated, statutory references are to the Bankruptcy Code, Title 11, U.S.C.
"Tr." refers to the transcript of July 12, 2018, trial, filed on the electronic docket of this adversary proceeding at ECF. No. 44, by page and line number.
Reference
- Full Case Name
- IN RE: Michael MAVASHEV, Debtor. Matthew C. Harrison, Jr. v. Michael Mavashev
- Cited By
- 1 case
- Status
- Published