Carter-Jones Lumber Co. v. Beatty (In re Beatty)
Carter-Jones Lumber Co. v. Beatty (In re Beatty)
Opinion of the Court
This adversary proceeding is before the court on a Motion for Summary Judgment ("Motion") filed by Plaintiff Carter-Jones Lumber Co. ("Plaintiff"), a creditor in the underlying Chapter 7 case. [Doc. # 19]. Defendant Jeffrey Scott Beatty ("Defendant-Debtor" or "Mr. Beatty") is the Chapter 7 Debtor. The Plaintiff's Motion seeks an order denying Defendant-Debtor's Chapter 7 discharge under
The district court has jurisdiction over the Defendant-Debtor's underlying Chapter 7 bankruptcy case as a case under Title 11 and over all proceedings arising in or related to that case, including this adversary proceeding.
For the reasons that follow, Plaintiff's Motion for Summary Judgment will be granted.
FACTUAL BACKGROUND
The following facts are undisputed. On June 2, 2016, Debtor filed a petition ("Petition") for relief under Chapter 7 of the Bankruptcy Code. [Case No. 16-31836, Doc. # 1].
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In addition, Defendant-Debtor identified some business interests and real estate transfers in Schedule A/B and his Statement of Financial Affairs, but not others. Specifically, he disclosed ownership interests in Trademark Roofing & Remodeling, LLC, Broadview Construction, LLC, and Broadview Builders, Ltd. [Doc. # 1, pp. 10-16 & 41], but did not include his membership interest in Beatty Enterprises, LLC, a real estate venture Defendant-Debtor entered into with his brother. [Id. , Pl. Ex. 4, p. 64]. Further, while Mr. Beatty listed an August 2015 transfer of a vacant lot located on Bellamy Road in Berlin Heights, Ohio [Case No. 16-31836, Doc. # 1, p. 39, Q. 18], he did not disclose other real estate transfers made within two years of his bankruptcy filing. Specifically, Defendant-Debtor had also transferred his ownership interests in two properties located in Sandusky to his brother in January of 2015. [Doc. # 19, Pl. Ex. 3, pp. 25-27; Pl. Ex. 4, pp. 11, 59]. Neither of the Sandusky transfers were listed on Defendant-Debtor's Statement of Financial Affairs in response to Question No. 18. [Case No. 16-31836, Doc. # 1, p. 39, Q. 18].
Plaintiff also asserts that there is a substantial discrepancy between the minimal assets claimed on Defendant-Debtor's schedules and the sizable income reported in his 2014 and 2015 tax returns. [Id. , Pl. Ex. 8, 9, 10, 11]. In Schedule A/B, Defendant-Debtor listed assets consisting of $25.00 in cash, $400.00 in a checking account, and personal items with a total value of $4,525.00. [Doc. # 1, pp 12-14]. As recorded in PNC bank records authenticated by Defendant-Debtor at the Rule 2004 examination, Defendant-Debtor withdrew a total of $264,130.00 from Broadview Construction LLC and Broadview Builders Ltd. accounts during 2014 and 2015. [Doc. # 19, Pl. Ex. 4, p. 90; Pl. Ex. 8]. The Schedules reflect that Mr. Beatty had a 100% ownership interest in both "Broadview Construction LLC" and "Broadview Builders Ltd". [Doc. # 1, p. 14]. Mr. Beatty's 2014 and 2015 federal tax returns further indicate that Defendant-Debtor reported $302,408.00 in income during that two year period. [Id. , Pl. Ex. 4, p. 90-93; Pl. Ex. 10, 11]. Upon being questioned as to his various withdrawals and reported income during the Rule 2004 examination, Defendant-Debtor failed to provide any explanation as to where these monies had gone. [Doc. # 19, Pl. Ex. 4, pp. 102-106].
In its Motion, Plaintiff asserts that the Defendant-Debtor's aforementioned omissions and inability to account for the discrepancy between the assets listed on his bankruptcy schedules and his significant past income are a basis for the denial of discharge under
*135[Id. , ¶ 83]. Lastly, Plaintiff argues that Defendant-Debtor systematically withdrew large sums of money from owned business entities, Broadview Construction, LLC and Broadview Builders, Ltd., and he cannot satisfactorily account for the loss or deficiency of those funds. [Id. , ¶ 107]. Accordingly, Defendant-Debtor's discharge should be denied under
In response, Defendant-Debtor argues that his failure to properly list assets material to his bankruptcy case can be explained by the fact that the bankruptcy forms and schedules had been recently changed before Mr. Beatty filed his Chapter 7 case. [Doc. # 20, pp. 4-5]. Defendant-Debtor also maintains that his failure to mention recent transfers of real property ought not subject him to a denial of discharge because said transfers were of over-encumbered real estate with no equity. [Id. , p. 3]. Finally, in response to the assertion that Defendant-Debtor has not explained satisfactorily any loss of assets or deficiency of assets to meet the debtor's liabilities under Section 727(a)(5), counsel asserts that there is no evidence that Mr. Beatty's business records were deficient in comparison with "others in his industry." [Id. , p. 4].
A review of the record shows that Defendant-Debtor has not amended his Petition or supporting documents to include the various alleged omissions delineated in Plaintiff's Complaint.
LAW AND ANALYSIS
I. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, made applicable to this proceeding by Federal Rule of Bankruptcy Procedure 7056, summary judgment is proper only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In reviewing a motion for summary judgment, however, all inferences "must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. ,
The party moving for summary judgment 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 ,
Where the moving party has met its initial burden, the adverse party "may not rest upon the mere allegations or denials of his pleading but...must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. ,
*136SUMMARY JUDGEMENT
Denial or revocation of a debtor's discharge are extraordinary remedies that run contrary to the Bankruptcy Code's "fresh start" policy. Smith v. Jordan (In re Jordan ),
the very purpose of certain sections of the law, like11 U.S.C. § 727 (a)(4)(A), 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. The statutes are designed to insure that complete, truthful, and reliable information is put forward at the outset of the proceedings, so that decisions can be made by the parties in interest based on fact rather than fiction. As we have stated, "the successful functioning of the bankruptcy act hinges both upon the bankrupt's veracity and his willingness to make a full disclosure." Neither the trustee nor the creditors should be required to engage in a laborious tug-of-war to drag the simple truth into the glare of daylight.
Boroff v. Tully (In re Tully) ,
As the party seeking denial of Defendant-Debtor's discharge, the Plaintiff bears the burden of proof, see , Fed. R. Bankr. P. 4005, by a preponderance of the evidence. See , McDermott v. Davis (In re Davis) ,
Plaintiff seeks to have Defendant-Debtor's discharge denied under
II.
Section 727(a)(2) provides that:
(a) The court shall grant the debtor a discharge unless-
(2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated or concealed-
(A) property of the debtor, within one year before the date of the filing of the petition; or
(B) property of the estate, after the date of the filing of the petition[.]
Under this subsection, a plaintiff must prove the following two elements: "1) a disposition of property, such as concealment, and 2) 'a subjective intent on the debtor's part to hinder, delay or defraud a creditor through the act disposing of the property.' " Keeney v. Smith (In re Keeney) ,
Here, the first § 727(a)(2) element is satisfied by Defendant-Debtor's failure to disclose the garaged Ford Mustang in the Statement of Financial Affairs [Case No. 16-31836, Doc # 1, p. 40, q. 23] or on Schedule A/B. This constitutes concealment of estate property, particularly when viewed in concert with Defendant-Debtor's statement, made under oath in response to questioning by the Trustee at the 341 meeting, claiming that the vehicle belonged to a friend. [Doc. # 19, Pl. Ex. 3, pp. 16-18]. Defendant-Debtor both failed to list the vehicle on the Schedules and Statement of Financial Affairs, and testified that he had no ownership interest in it by stating that it belonged to a friend. [Id. ]. The failure to properly list his ownership of the Mustang, coupled with the false testimony that it belonged to a friend, improperly concealed the vehicle from the trustee, his creditors, and the court. See , In re Blasingame ,
The second § 727(a)(2) element is also satisfied by Defendant-Debtor's false statements to the Trustee when first questioned about the Mustang during the 341 meeting. Fraudulent intent is a factual issue determined by the court based on the totality of the circumstances. Keeney,
Even viewed in the light most favorable to Defendant-Debtor, Plaintiff has submitted strong evidence of Defendant-Debtor's subjective intent to deceive when he testified that the Ford Mustang in his garage belonged to a friend. [Doc. # 19, Pl. Ex. 3, pp. 16-17]. Moments later, Defendant-Debtor admitted that he was actually the Mustang's owner. [Id. , p. 17]. Thus, the evidence presented by Plaintiff demonstrates that Defendant-Debtor knew that his prior statement, that the vehicle belonged to a friend, was false when he made it. Further, when considered alongside Defendant-Debtor's numerous other omissions from the Petition, Plaintiff has presented evidence of a pattern of either deliberate misstatements or, at the very least, a reckless disregard for the requirement of full and honest disclosure. Hamo ,
This appears to meet Plaintiff's initial burden of showing "the absence of a genuine issue of material fact" as to the essential elements of the Defendant-Debtor's case. Celotex , 477 U.S. at 325, 106 S.Ct. at 2554. The Sixth Circuit has specifically held that this burden can be met where the respondent, having had sufficient opportunity for discovery, has no evidence to support their case. See , Street v. J.C. Bradford & Co. ,
Finally, as the Street decision specifically held, "[c]ases involving state of mind issues are not necessarily inappropriate for summary judgment."
III.
A prerequisite to the privilege of discharge is complete financial disclosure. Keeney ,
1) the debtor made a statement under oath; 2) the statement was false; 3) the debtor knew the statement was false; 4) the debtor made the statement with fraudulent intent; and (5) the statement related materially to the bankruptcy case.
The Sixth Circuit explained fraudulent intent as contemplated under this section as follows:
[I]ntent to defraud "involves a material representation that you know to be false, or, what amounts to the same thing, an omission that you know will create an erroneous impression." In re Chavin ,150 F.3d 726 , 728 (7th Cir. 1998). A reckless disregard as to whether a representation is true will also satisfy the intent requirement. SeeId. " '[C]ourts may deduce fraudulent intent from all the facts and circumstances of a case.' "
*139Williamson v. Fireman's Fund Ins. Co. ,828 F.2d 249 , 252 (4th Cir. 1987) (citation omitted). However, a debtor is entitled to discharge if false information is the result of mistake or inadvertence.
"The fundamental purpose of § 727(a)(4)(A) is to insure that the trustee and creditors have accurate information without having to do costly investigations." U.S. Trustee v. Zhang (In re Zhang) ,
Statements in bankruptcy schedules and at 341 meetings are given under penalty of perjury. Hamo ,
Courts have noted that there are only subtle differences between (a)(4)(A) and (a)(2): one requires a false oath, and the other requires the concealment of property. Burke ,
Here, the court finds that Plaintiff has carried its burden of establishing all five Keeney elements. First, Defendant-Debtor omitted the Mustang from Schedules filed under penalty of perjury and provided testimony regarding the Mustang while under oath at the 341 hearing. [Doc. # 19, Pl. Ex. 3, pp. 16-18]. Second, Defendant-Debtor falsely testified that the Mustang belonged to a friend. [Id. , p. 17]. Third, Defendant-Debtor knew that his testimony was false because Defendant-Debtor admitted that he was the Mustang's owner shortly after claiming that it belonged to a friend. [Id. ].
As for the fourth Keeney element, this court has already found that Defendant-Debtor demonstrated fraudulent intent under § 727(a)(2) and "fraudulent intent under [ § 727(a)(4)(A) ] is practically *140identical." McDermott v. Capra (In re Capra) , No 16-1010,
Plaintiff has also established the fifth Keeney element of materiality given that Defendant-Debtor's testimony regarding the Mustang "bears a relationship to the [Defendant-Debtor's] business or estate" and "concerns the discovery of assets." Keeney ,
Thus, Plaintiff has proven all five Keeney elements by a preponderance of the evidence, even viewing the evidence in the light most favorable to the Defendant-Debtor. Accordingly, Defendant-Debtor's discharge will be denied under § 727(a)(4)(A) as well.
IV.
Another component of the Bankruptcy Code's emphasis on full and honest disclosure as prerequisite to the relief of discharge deals in the debtor's ability to explain any substantial loss of assets incurred during the lead-up to filing a petition.
In order to prevail on a claim brought under this section, the plaintiff "has the burden to identify assets which the debtor at one time owned and claims, in his schedules, to no longer possess." Crocker v. Stiff (In re Stiff ),
A debtor's explanation pursuant to a § 727(a)(5) claim, while not necessarily needing to be comprehensive, must be "satisfactory." Stiff ,
Though Defendant-Debtor's response asserts that there is no proof that his financial records are not on par with other similarly situated sole proprietorships, this argument cannot prevail where there is no explanation
Thus, the unexplained loss of assets violates § 727(a)(5) and Plaintiff accordingly prevails on its claim.
CONCLUSION
For all of the foregoing reasons, the court finds that Plaintiff has met its burden of proving that Defendant-Debtor 1) attempted to conceal ownership of a Ford Mustang under
THEREFORE, for the foregoing reasons, good cause appearing,
IT IS ORDERED that the Plaintiff's Motion for Summary Judgment [Doc. # 19] be, and hereby is, GRANTED. The court will enter a separate judgment in accordance with this Memorandum of Decision and Order.
As permitted by Rule 56 (c)(3) of the Federal Rules of Civil Procedure, applicable in this adversary proceeding under Rule 7056 of the Federal Rules of Bankruptcy Procedure, the court takes judicial notice of the contents of its case docket and the Debtor's schedules. Fed. R. Bankr. P. 9017 ; Fed. R. Evid. 201(b)(2) ; In re Calder ,
This is not a case where the Debtor-Defendant has asserted a Fifth Amendment privilege. See ,
See e.g. , Beneficial Mortg. Co. v. Craig (In re Craig ),
Reference
- Full Case Name
- IN RE: Jeffrey Scott BEATTY, Debtor. Carter-Jones Lumber Co. v. Jeffrey Scott Beatty
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