Provident Bank v. Antonucci (In re Antonucci)
Provident Bank v. Antonucci (In re Antonucci)
Opinion of the Court
I. INTRODUCTION
Before the Court for disposition are two separate matters in the bankruptcy case of Marc S. Antonucci (the "Debtor"). First, the Debtor seeks to avoid a judgment lien (the "Lien Avoidance Motion")
Second, Provident seeks a determination (i) that the Debtor is not entitled to a general discharge pursuant to § 727(a)(2) of the Bankruptcy Code, which in general prohibits a debtor's discharge where the debtor has engaged in misconduct with respect to property of the debtor or of the estate in an attempt to hinder, delay or defraud a creditor, and (ii) that the Debtor's judgment debt to Provident cannot be discharged pursuant to §§ 523(a)(2)(A) and (a)(2)(B) of the Bankruptcy Code, which except from a debtor's general discharge debts either (a) incurred by false pretenses, false representations, or actual fraud, or (b) incurred through a materially false written statement a debtor made with intent to deceive respecting the debtor's financial condition on which a creditor reasonably relied (the "Nondischargeability Action").
For the reasons set forth below, the Court finds Provident has established that the Debtor is not entitled to a general discharge pursuant to § 727(a)(2), and therefore will rule in favor of Provident in the Nondischargeability Action. With respect to the Lien Avoidance Motion, the Court will allow the Parties the opportunity to address the legal issue of whether the denial of the Debtor's discharge precludes the Debtor from avoiding Provident's judgment lien.
II. RELEVANT PROCEDURAL AND FACTUAL BACKGROUND
A. Provident's Pre-Petition Funding and the Debtor's Personal Guaranties
Provident is a New Jersey chartered stock capital savings bank. The Debtor was, at all times relevant here, a shareholder and officer of Specialty Flooring Systems, Inc. ("Specialty Flooring") and a managing member of Antar Realty, L.L.C. ("Antar"). Specialty Flooring was a flooring contractor headquartered in South Plainfield, New Jersey. Antar was a real estate company established to buy the building out of which Specialty Flooring was operating.
On or about February 5, 2010, Provident provided a working line of credit facility to Specialty Flooring in the amount of $3,000,000.00 (the "Revolving Credit Loan"). On November 5, 2010, Provident made (i) a term loan to Specialty Flooring in the amount of $2,000,000.00 (the "Specialty Flooring Term Loan," and together with the Revolving Credit Loan, the "Specialty Flooring Loans"), and (ii) a mortgage loan to Antar in the amount of $1,893,750.00 (the "Antar Loan"). In connection with the Specialty Flooring Loans, the Debtor executed a Guaranty of Payment (the "Specialty Flooring Guaranty") dated November 5, 2010, by which the Debtor unconditionally guaranteed Specialty Flooring's full payment and performance obligations with respect to the Specialty Flooring Loans. Likewise, in connection with the Antar Loan, the Debtor executed a Guaranty of Payment (the "Antar Guaranty," and together with the Specialty Flooring Guaranty, the "Personal Guaranties") dated November 5, 2010, by which the Debtor unconditionally guaranteed Antar's full payment and performance obligations with respect to the Antar Loan.
Each of the Personal Guaranties included the following term, whereby the Debtor *622warranted the accuracy of information and completeness of material disclosures contained in all documents provided to Provident in connection with the extensions of credit Provident gave to Specialty Flooring and Antar, respectively:
12. Accuracy of Information; Full Disclosure. Guarantor represents that neither this Guaranty nor any documents, financial statements, reports, notices, schedules, certificates, statements or other writings furnished by or on behalf of Guarantor to Lender in connection with the negotiation of the Loan Documents or the consummation of the transactions contemplated thereby, or required herein or by the other Loan Documents to be furnished by or on behalf of Guarantor, contains any untrue or misleading statement of a material fact; there is no fact that Guarantor has not disclosed to Lender in writing that materially affects adversely any of the Collateral covered by the Loan Agreement or the business affairs or financial condition of Guarantor, or the ability of Guarantor to perform this Guaranty and the other Loan Documents to which Guarantor is a party.
Specialty Flooring Guaranty, at ¶12;
On November 16, 2012, Provident filed suit against the Debtor in the United States District Court for the District of New Jersey (the "New Jersey District Court"), alleging breach of the Personal Guaranties. On February 6, 2015, the New Jersey District Court entered an order granting final judgment to Provident in the amount of $7,391,404.88 (the "Personal Guaranties Judgment").
On September 22, 2016 (the "Petition Date"), prior to the State Court's resolution of the Second Motion to Compel and Protective Order Motion, the Debtor filed a voluntary petition under chapter 7 of the Bankruptcy Code.
B. The Debtor's Original Schedules
On October 5, 2016, the day before they were due to be filed, Debtor sought a 14-day extension to file, inter alia , his Schedules and Statements, and on October 13, 2016, the Debtor filed his Schedules and *623Statements.
With respect to his assets, the Debtor represented in his Schedule A/B that he owns a property located at 3525 Wellsford Lane, Doylestown, Pennsylvania (the "Doylestown Property") in fee simple, with "another."
With respect to his liabilities, the Debtor identified Provident as having a $7,391,404.88 unsecured claim based on a "guarantee of corporate obligation."
With respect to his income and expenses, the Debtor represented in his Schedule I that he was employed by Platinum Maintenance Services ("Platinum Maintenance") and had gross monthly wages of $19,184.88, which after deductions totaled $13,902.10.
C. The Debtor's Lien Avoidance Motion and Amended Schedules
On November 30, 2016, the Debtor filed the Lien Avoidance Motion, seeking to *624avoid Provident's judicial lien pursuant to § 522(f) of the Bankruptcy Code because the Debtor "claimed [the Doylestown Property] as exempt under the state exemptions of 11 U.S.C. Section 522(b)(3)(B) as the property is held jointly with the Debtor's spouse as tenants by the entireties."
The next day, on December 15, 2016, the Debtor filed an amended Schedule C that claimed an exemption for the Doylestown Property pursuant to § 522(b)(3)(B) as property the Debtor held as a tenant by the entirety.
On February 1, 2017, the Court held a hearing on the Lien Avoidance Motion and the Lien Avoidance Response. At the hearing Provident conceded that, in light of the Debtor's amended Schedules, Provident's judgment lien was avoidable.
D. Provident's Nondischargeability Action
On December 16, 2016, Provident filed a Complaint in the Nondischargeability Action (the "Complaint").
*625First, by Count I of the Complaint, Provident objects to the Debtor's general discharge pursuant to § 727(a)(2) of the Bankruptcy Code, which prohibits a debtor's discharge where 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."
Second, by Count II of the Complaint, Provident objects to the discharge of the Personal Guaranties Judgment pursuant to § 523(a)(2)(A) of the Bankruptcy Code, which excepts from a general discharge under § 727 any debt "for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by - (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition."
Third, by Count III of the Complaint, Provident objects to the discharge of the Personal Guaranties Judgment pursuant to § 523(a)(2)(B) of the Bankruptcy Code, which excepts from a general discharge under § 727 any debt "for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by - (B) use of a statement in writing - (i) that is materially false; (ii) respecting the debtor's or an insider's financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive."
On January 18, 2017, the Debtor filed an Answer to the Complaint, generally denying that Provident is entitled to the relief it seeks.
III. DISCUSSION
The Court believes the grant or denial of the Debtor's discharge may dictate whether Provident's judgment lien can be avoided. The Court will therefore first resolve the Nondischargeability Action before turning to the Lien Avoidance Motion.
A. The Nondischargeability Action
i. The Legal Standard for Nondischargeability Under § 727(a)(2)
Section 727's discharge provision is at the heart of the Bankruptcy Code's fresh start provisions, and the section is to be construed liberally in favor of the debtor. Rosen v. Bezner ,
In order to obtain relief under § 727(a)(2)(A), a plaintiff must establish four elements: (1) the debtor transferred, removed or concealed property; (2) the property belonged to the debtor; (3) the conduct occurred within one year of the petition date; and (4) the conduct was intended to hinder, delay or defraud a creditor. Shubert v. Grasso (In re Grasso) ,
Here, Provident has alleged that the Debtor has concealed property belonging to him or to the estate.
Importantly, while § 727(a)(2)(A) generally only encompasses a debtor's bad acts within one year of the bankruptcy filing, the Third Circuit Court of Appeals has adopted the "continuous concealment" doctrine to evaluate whether an act falls within the statute's temporal limit. Rosen ,
Establishing the requisite scienter under § 727(a)(2) imposes a considerable burden on a plaintiff objecting to a debtor's discharge, as the intent contemplated under § 727(a)(2) requires a plaintiff to show that the debtor had an actual, specific intent to defraud, hinder, or delay a creditor. Vara v. Clark (In re Clark) ,
ii. Provident Has Established the Requirements for Nondischargeability under § 727(a)(2)
Provident's argument that the Debtor should be denied a general discharge pursuant to § 727(a)(2) is based on two grounds: (a) the Debtor "concealed his property from Plaintiff's lawful right to enforce the collection of its Judgment by ignoring a lawfully issued State Court order that he submit to Plaintiff's Post Judgment Discovery Requests,"
Turning first to the Debtor's conduct in post-judgment discovery in the State Court, Provident did not establish that the Debtor's failure to answer post-judgment discovery constituted actual, specific intent to hinder, delay, or defraud Provident. While it may be that, had the State Court determined the Second Contempt Motion, the Debtor would have been subject to sanctions, the Debtor's bankruptcy filing stayed the litigation in the State Court. Therefore, no determination was made regarding whether the Debtor engaged in inappropriate or bad faith conduct in the State Court discovery. This Court was not presented with any testimony or other evidence regarding the nature of the discovery Provident requested, the Debtor's reason or lack thereof for not responding to it, why the Debtor moved for a protective order, or any other information that would allow this Court to make a determination as to whether the Debtor intentionally sought to hinder, delay, or defraud Provident in failing to respond to discovery in the State Court. It could be that the discovery Provident sought was impermissibly overbroad. It could be that the Debtor had no responsive documents. It could be that the Debtor did not believe he had an obligation to respond. Without evidence regarding the nature of the discovery sought and the reasons why the Debtor did not provide responses, this Court is not in a position to find that such failure constituted specific intent to conceal his assets, as required under § 727(a)(2).
Next for consideration is Provident's argument that the lack or incompleteness *629of disclosures in the Debtor's Schedules supports a finding that he is not entitled to a discharge. With respect to the Doylestown Property, the Debtor's original Schedule A/B listed the property among the Debtor's assets, held in fee simple ownership. The Debtor's original Schedule C failed to claim an exemption of the Debtor's interest in the Doylestown Property. Provident's Lien Avoidance Response noted both of these facts, and within days the Debtor filed amended Schedules to reflect that he owned the Doylestown Property as tenant by the entirety with his wife and was claiming an exemption for his interest in the property, the latter of which was consistent with the Debtor's Statement of Intention filed on the same day his original Schedules were filed. There is no doubt that debtors must file true and correct bankruptcy schedules in order to give the bankruptcy court and all parties-in-interest a complete and accurate picture of their financial position. See, e.g., Bezner v. Rittweger (In re Rittweger) ,
The Court also finds meritless Provident's assertion that the Debtor's representations in his Schedule A/B regarding his personal property constitute an attempt to conceal assets. At Trial, the Debtor's counsel questioned Mr. Jones regarding the grounds for Provident's assertion that the Debtor concealed personal property in his Schedules.
This leaves Provident's final argument with respect to the Debtor's Schedules, which is that the Debtor's responses in his Schedule A/B regarding his income and financial assets "raise the issue as to where [the Debtor] does put his monthly income." The Debtor testified that the last time he had a checking or savings account individually or jointly was approximately 2011.
The Court finds that the Debtor's testimony, and most critically his admission that in 2011 he removed his name from his bank account effectively to avoid a creditor's collection efforts and has never thereafter deposited his substantial monthly earnings into an account in his own name, establishes Provident's position that the Debtor has concealed his income from creditors with specific intent to hinder, delay or defraud them. As noted above, the Third Circuit recognizes the doctrine of "continuous concealment" of assets in the scenario where a debtor concealed assets outside of the statute's one-year look-back period, but that concealment continued into the statutory window. The requirements of that doctrine may be found to have been met where the debtor transferred property outside the look-back period but retained a beneficial or equitable interest in the property and continued to treat it in the same manner as before the transfer. See, e.g., Corona ,
Here, each of these requirements has been established by a preponderance of the evidence by the Debtor's own testimony. The Debtor acknowledged that his impetus for removing his name from the bank account he shared with his wife in 2011 was to evade a union creditor's lien efforts due to late payment of union benefits.
*631Therefore, unlike instances where a court must look to badges of fraud to determine whether a debtor had specific intent to hinder, delay, or defraud creditors when making a transfer, this case presents the rare instance where a debtor has admitted to having that specific intent. The Court also finds that this intent continued into the one-year look-back period under § 727(a)(2), and indeed continued through the Petition Date and beyond. The Debtor testified that since removing his name from the account he has never deposited another paycheck in an account in his own name, instead continuing to deposit his substantial income into the account maintained in his wife's name. The Debtor testified that from May of 2012 through December of 2017, well past the time he filed his bankruptcy petition, his wage checks were issued to him by hand delivery or by mailing them to his wife. These paychecks were all deposited into the account bearing only his wife's name, thus designed to shield them from creditors' collection efforts.
Moreover, the Debtor admitted that although he deposited all paychecks into his wife's account, he never departed with his interest in these funds. Rather, they have been used to pay the monthly living expenses of the Debtor and his family. Where the account ownership was modified in the first place to avoid creditor collection efforts, this does not present a case where a married couple innocently deposits wages into a pre-existing account bearing the name of one spouse or the other while using that account as a joint account. Here the Debtor, facing a creditor's collection efforts on a debt for which he alone was liable, purposefully removed himself from legal ownership of the bank account to hinder those collection efforts, but continued to deposit his wages into the account and continued to use the funds in that account for his own benefit. The Third Circuit has found that concealment includes preventing the discovery of or the withholding of knowledge of property. Henderson ,
iii. Nondischargeability Under §§ 523(a)(2)(A) and 523(a)(2)(B)
Because the Court has determined that the Debtor is not entitled to a discharge of his pre-petition debts pursuant to § 727(a)(2) of the Bankruptcy Code, including the Personal Guaranties Judgment held by Provident, it is unnecessary for the Court to determine whether Provident has also satisfied its burden for establishing nondischargeability under §§ 523(a)(2)(A) or 523(a)(2)(B).
B. The Lien Avoidance Motion
As noted above, given the Debtor's amended Schedules, Provident conceded at the February 1, 2017 hearing on the Lien Avoidance Motion that its judicial lien could be avoided. Provident, however, pressed its position on the Lien Avoidance Timing Issue, arguing that avoidance should not be effective immediately but instead should be suspended pending the determination of the Nondischargeability Action. The Debtor argued in response that § 522(c) and the United States Supreme Court's decision in Law v. Siegel ,
The Court has now resolved the Nondischargeability Action, finding the Debtor is not entitled to a discharge. As such, the Lien Avoidance Timing Issue is moot, and the issue remaining for the Court is whether, in light of that determination, the Debtor is still entitled to claim an exemption in the Doylestown Property and avoid Provident's lien to the extent it impairs the exemption. The Court believes, however, that Provident has not been given the opportunity to address that issue because, at the time of the February 1, 2017 hearing on the Lien Avoidance Motion, the issue argued and to be briefed was the Lien Avoidance Timing Issue.
The Court will therefore give the Parties the opportunity to address whether the denial of the Debtor's discharge precludes him from claiming an exemption in the Doylestown Property and avoiding Provident's judgment lien to the extent it impairs that exemption.
IV. CONCLUSION
For the reasons discussed above, this Court will (i) enter judgment in favor of Provident in the Nondischargeability Action, and (ii) set a status hearing for further proceedings on the Lien Avoidance Motion.
An Order consistent with this Memorandum will be entered.
Bankr. Docket No. 25.
Adv. Pro. Docket No. 1.
All facts cited herein are derived from the parties' proposed findings of fact submitted after the trial in this matter. Bankr. Docket Nos. 19, 20.
Trial Exhibit P-3.
Trial Exhibit P-4.
Trial Exhibit P-5.
Trial Exhibit P-6.
Trial Exhibit P-7.
Bankr. Docket No. 1.
The docket reflects that this Court did not enter an order approving or denying the Debtor's request for an extension of the deadline to file his Schedules and Statements prior to his filing them on October 13, 2016.
Bankr. Docket No. 14, Schedule A/B, Question 1.1.
Bankr. Docket No. 14, Schedule A/B, Questions 6, 7 and 12.
Bankr. Docket No. 14, Schedule A/B, Questions 16 to 36.
Bankr. Docket No. 14, Schedule C, Questions 1 and 2.
Bankr. Docket No. 16.
Bankr. Docket No. 14, Schedule E/F, Question 4.4. Designation of Provident's claim as unsecured is inconsistent with the Debtor's Lien Avoidance Motion seeking to avoid Provident's judgment lien, but the Court interprets the Lien Avoidance Motion as the Debtor's subsequent recognition that Provident holds a secured claim based on the Personal Guaranties Judgment.
Bankr. Docket No. 14, Schedule E/F, Question 4.6.
Bankr. Docket No. 14, Schedule I, Question 2.
Bankr. Docket No. 14, Schedule J, Question 4.4.
Bankr. Docket No. 25.
Bankr, Docket No. 30.
Bankr. Docket No. 32, Schedule C, Question 2.
Bankr. Docket No. 34, Schedule A/B, Question 1.1.
Audio Transcript, February 1, 2017 Hearing at 11:02 to 11:03; 11:07 to 11:08; Bankr. Docket No. 40, Memorandum of Law of Provident Bank in Opposition to Debtor's Motion to Avoid Lien/Judgment (the "Provident Lien Avoidance Brief"), at p. 5-6.
Audio Transcript, February 1, 2017 Hearing at 11:03 to 11:04; Provident Lien Avoidance Brief, at p. 5-6.
Audio Transcript, February 1, 2017 Hearing at 11:05.
Audio Transcript, February 1, 2017 Hearing at 11:08.
Bankr. Docket Nos. 40, 42.
Adv. Pro. Docket No. 1.
Complaint, at ¶26.
Complaint, at ¶37.
Complaint, at ¶38.
Complaint, at ¶40.
Complaint, at ¶43.
Complaint, at ¶47.
Complaint, at ¶50.
Complaint, at ¶¶51, 52.
Complaint, at ¶53.
Adv. Pro. Docket No. 5.
Adv. Pro. Docket Nos. 19, 20.
Complaint, at ¶¶26, 27, 40.
The badges of fraud courts have considered are: (1) the transfer or obligation was to an insider; (2) the debtor retained possession or control of the property transferred after the transfer; (3) the transfer or obligation was disclosed or concealed; (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) the transfer was of substantially all of the debtor's assets; (6) the debtor absconded; (7) the debtor removed or concealed assets; (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) the transfer occurred shortly before or shortly after a substantial debt was incurred; (11) the debtor transferred the essential assets of a business to a lienor who transferred the assets to an insider of the debtor. Clark ,
Complaint, at ¶26.
Complaint, at ¶¶27-40.
Trial Transcript, 76:6 to 77:21.
Trial transcript, 76:19 to 77:21.
Trial Transcript, 76:6 to 76:16.
Trial Transcript, 121:3 to 121:20.
Trial Transcript, 96:19 to 96:23.
Trial Transcript, 96:24 to 97:25.
Trial Transcript, 98:13 to 99:20; 120:19 to 121:2.
Trial Transcript, 100:8 to 105:25; 112:2 to 112:17.
Trial Transcript, 106:1 to 106:19.
Reference
- Full Case Name
- IN RE: Marc S. ANTONUCCI, Debtor. Provident Bank v. Marc S. Antonucci
- Cited By
- 1 case
- Status
- Published