Bajgar v. Martin
U.S. Court of Appeals for the First Circuit
Bajgar v. Martin
Opinion
USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 96-1600
IN RE: JURAJ J. BAJGAR,
Debtor,
_____________________
CAROL B. MARTIN, ADMINISTRATOR OF ESTATE OF FRANCIS A. MARTIN,
Plaintiff/Creditor, Appellant,
v.
JURAJ J. BAJGAR,
Defendant/Debtor, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Arthur J. Carakatsane for appellant. _____________________
Richard S. Hackel for appellee. _________________
____________________
January 17, 1997
____________________
STAHL, Circuit Judge. Creditor-Appellant Carol B. STAHL, Circuit Judge. _____________
Martin appeals the district court's affirmance of the
bankruptcy court's decision to grant Debtor-Appellee Juraj J.
Bajgar a discharge pursuant to 11 U.S.C. 727(a)(2)(A) with
respect to property that Bajgar fraudulently transferred
within one year before the filing of his voluntary petition
for relief under Chapter 7 of the Bankruptcy Code. We
reverse.
Background Background __________
Bajgar and his wife jointly owned a vacant parcel
of land in Port St. Lucie, Florida ("the Florida property").
On November 10, 1993, Bajgar conveyed his interest in the
land to his wife, purportedly as a belated engagement gift,
delayed twenty-three years. In return, Bajgar received "love
and affection." The conveyance was recorded on December 2,
1993. At the time of the conveyance, Bajgar faced a
collection action and several foreclosures. He conceded at
trial that the transfer was fraudulent within the meaning of
the Bankruptcy Code, admitting that the transfer was
completed with actual intent to hinder, delay, or defraud his
creditors.
On May 16, 1994, less than one year after the
conveyance of the Florida property, Bajgar filed a petition
for relief under Chapter 7 of the Bankruptcy Code. In his
petition, Bajgar disclosed the fraudulent transfer by
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attaching a copy of the deed to the statement of affairs
filed pursuant to 11 U.S.C. 521(1). At a June 20, 1994,
mandatory creditors meeting, Bajgar and his wife volunteered
to reconvey the Florida property.
On August 19, 1994, Martin, one of Bajgar's
creditors, filed a Complaint to Object to Discharge, which
she amended on September 21, 1994. Martin's amended
complaint alleged a violation of 11 U.S.C. 727(a)(2)(A),
which precludes discharge for a debtor who transfers property
within one year of the filing of a bankruptcy petition if he
acts with the intent to hinder, delay, or defraud a creditor.
On September 30, 1994, at Bajgar's request and on the advice
of counsel, Bajgar's wife reconveyed the Florida property to
herself and Bajgar jointly by quitclaim deed. Bajgar's wife
completed the retransfer more than four months after Bajgar
filed his voluntary bankruptcy petition, more than three
months after the meeting with creditors, and more than one
month after Martin first objected to discharge.
The bankruptcy court (Hillman, J.) held that the
conveyance of the Florida property did not constitute grounds
to deny Bajgar's discharge under Section 727(a)(2)(A).
Martin appealed this decision to the United States District
Court for the District of Massachusetts. The district court
(Lasker, J.) affirmed, determining that the re-transfer of
the Florida property to Bajgar cured Bajgar's admittedly
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fraudulent initial transfer. This appeal ensued.
Standard of Review Standard of Review __________________
"In an appeal from the district court's review of a
bankruptcy court order, we independently review the
bankruptcy court's decision, applying the 'clearly erroneous'
standard to findings of fact and de novo review to _______
conclusions of law." Grella v. Salem Five Cent Sav. Bank, 42 ______ _________________________
F.3d 26, 30 (1st Cir. 1994); see also In re G.S.F. Corp., 938 ___ ____ __________________
F.2d 1467, 1474 (1st Cir. 1991). The district court's
determination that the re-transfer justified discharging
Bajgar pursuant to Section 727(a)(2)(A) constitutes a
conclusion of law that we subject to plenary review. See ___
Century 21 Balfour Real Estate v. Menna (In re Menna), 16 ______________________________ _____ ___________
F.3d 7, 10 (1st Cir. 1994); In re Erin Food Servs., Inc., 980 ____________________________
F.2d 792, 799 (1st Cir. 1992).
Discussion Discussion __________
This case presents this Circuit with an issue of
first impression: whether an admittedly fraudulent transfer
of a debtor's property within one year before the filing of a
voluntary petition for relief under Chapter 7 of the
Bankruptcy Code is cured for purposes of dischargeability
pursuant to Section 727(a)(2)(A) by its re-transfer to the
debtor after the debtor files his petition. We hold that re-
transfer subsequent to filing a voluntary bankruptcy petition
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does not cure the fraudulent transfer, and, thus, does not
avail the debtor discharge under Section 727.
Title 11, Section 727(a)(2)(A) states in pertinent
part:
(a) The court shall grant the debtor a discharge,
unless--
(2) The debtor, with intent to hinder,
delay, or defraud a creditor . . . has
transferred . . .
(A) property of the debtor within
one year before the date of the
filing of the petition.
11 U.S.C. 727(a)(2)(A). Bajgar urges us to interpret the
term "transferred" to mean "transferred and remained
transferred" in the context of a debtor who reconveys
property subsequent to filing a voluntary bankruptcy
petition.
As we have stated previously, "the task of
interpretation begins with the text of the statute itself,
and statutory language must be accorded its ordinary
meaning." Telematics Int'l, Inc. v. NEMLC Leasing Corp., 967 ______________________ ___________________
F.2d 703, 706 (1st Cir. 1992). "Where, as here, the
statute's language is plain, 'the sole function of the courts
is to enforce it according to its terms.'" United States v. _____________
Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (quoting ______________________
Caminetti v. United States, 242 U.S. 470, 485 (1917)). "The _________ _____________
plain meaning of legislation should be conclusive, except in
the 'rare cases [in which] the literal application of a
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statute will produce a result demonstrably at odds with the
intentions of the drafters.'" Ron Pair, 489 U.S. at 242 ________
(quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, _______ _________________________
571 (1982)).
The statutory language of Section 727(a)(2)(A) is
sufficiently plain. The statute specifically authorizes
denial of discharge if the debtor "transferred" property
within one year prior to the date of filing the bankruptcy
petition; it does not qualify this provision with a clause to
the effect that transferred property must remain transferred.
See 11 U.S.C. 727(a)(2)(A). ___
The Bankruptcy Code, moreover, defines the term
"transfer" broadly as "every mode, direct or indirect,
absolute or conditional, voluntary or involuntary, of
disposing of or parting with property or with an interest in
property." 11 U.S.C. 101(54). Although the legislative
history offers no guidance in interpreting "transfer" in the
context of Section 727(a)(2)(A), the legislative history of
Section 101(54), which defines "transfer," explains that
"[t]he definition of transfer is as broad as possible." S.
Rep. No. 989, 95th Cong. 27 (1978), reprinted in 1978 _________ __
U.S.C.C.A.N. 5787, 5813; H.R. Rep. No. 595, 95th Cong. 314
(1977). Limiting the definition of "transferred" to
"transferred and remained transferred," in fact, would
contradict the drafters' intent.
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In support of his position, Bajgar recites Justice
Douglas' admonition that courts "do not read . . . statutory
words with the ease of a computer. There is an overriding
consideration that equitable principles govern the exercise
of bankruptcy jurisdiction." Bank of Marin v. England, 385 _____________ _______
U.S. 99, 103 (1966). This recitation, however, is misplaced
in this case. Bank of Marin addressed the issue of whether _____________
or not "the payment by the drawee of a drawer bankrupt's
checks after the date of th[e] filing [in bankruptcy] is a
`transfer' within the meaning of [repealed 11 U.S.C.
110(d)(5)]." Id. at 102. The Court determined "it would be ___
inequitable to hold liable a drawee who pays checks of the
bankrupt duly drawn but presented after bankruptcy, where no
actual revocation of its authority has been made and it has
not notice or knowledge of the bankruptcy." Id. at 103. ___
Although Congress "has legislated the exception [that the
Marin Court articulated with respect to the need for notice] _____
in 542(c)," Poonja v. Charles Schwab & Co. (In re Dominion ______ ____________________ ______________
Corp.), 199 B.R. 410, 413 (9th Cir. 1996), the legislative _____
history makes plain that Congress, in revising the Bankruptcy
Code, did not intend to limit the definition of the term
"transfer." See S. Rep. No. 989, at 27; H.R. Rep. No 595, at ___
314; see also Dominion Corp., 199 B.R. at 413 (explaining ___ ____ ______________
that changes made to the Code following Marin pertained to _____
the definition of "transferee" not "transfer"). In fact,
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"[t]he word 'transfer' has always had a most comprehensive
meaning under the bankruptcy laws and has been construed to
include every method of disposing of or parting with property
or its possession." 4 Collier on Bankruptcy 727.02[5] _____________________
(15th ed. 1996). And, "[w]hatever force the assertion in
Bank of Marin v. England, that 'equitable principles govern _____________ _______
the exercise of bankruptcy jurisdiction' may have had under
the 1898 Act, this approach has no place under the Code to
the extent the statute addresses the question." Levit v. _____
Ingersoll Rand Fin. Corp., 874 F.2d 1186, 1189 (7th Cir. _________________________
1989); see also In re Taubman, 160 B.R. 964, 980 (S.D. Ohio ___ ____ _____________
1993) ("It must [] be recognized that the exercise of []
equitable principles . . . 'cannot contravene specific
provisions of the Bankruptcy Code.'") (quoting Terex Corp. v. ___________
Metropolitan Life Ins. Co., 984 F.2d 170, 173 (6th Cir. 1993)).1 __________________________
____________________
1. The district court reasoned that "`the statutory right to
a discharge should ordinarily be construed liberally in favor
of the debtor.'" Martin v. Bajgar (In re Bajgar), C.A. No. ______ ______ ____________
95-12562-MEL, slip op. at 2-3 (quoting In re Tully, 818 F.2d _______ ___________
106, 110 (1st Cir. 1987)). Although Tully did posit that _____
"`[t]he reasons for denying a discharge to a bankrupt must be
real and substantial, not merely technical and conjectural,'"
it also directed that, "[o]n the other hand, the very purpose
of certain sections of the law, like 11 U.S.C. 727(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." Tully, 818 F.2d at _____
110 (quoting Dilworth v. Booth, 69 F.2d 621, 624 (5th Cir. _______ ________ _____
1934)). In a more recent case, moreover, we explained that
"[e]xceptions to discharge are narrowly construed in
furtherance of the Bankruptcy Code's `fresh start' policy and
the claimant must show that its claim comes squarely within _____________________________________________________________
an exception enumerated in Bankruptcy Code [727(a)(2)]." ___________________________________________________________
Menna, 16 F.3d at 9 (emphasis added). In this case, Martin's _____
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Without delving into the murky realm of legislative
purpose and equitable principles, the Eleventh Circuit, one
of the two other courts of appeals to address this issue,
reached the same conclusion we reach today. See Davis v. ___ _____
Davis (In re Davis), 911 F.2d 560 (11th Cir. 1990) (per _____ ___________
curiam). In Davis, the Eleventh Circuit considered the case _____
of a debtor ("Davis") who transferred a one-half interest in
his home to his wife. See id. at 561. Upon the advice of a ___ ___
bankruptcy lawyer, Davis re-transferred the property. The
day following recordation of the deed formalizing this
retransfer, and less than one year after the initial
transfer, Davis filed for bankruptcy protection under Chapter
7. Despite the fact that Davis disclosed the existence of
the fraudulent transfers, a creditor filed an adversary
proceeding to deny discharge under Section 727(a)(2)(A).
Like Bajgar, Davis argued that "the word
'transferred' should be read to mean 'transferred and
remained transferred' at the time a debtor files his
bankruptcy petition." Id. at 562. Refusing to discharge ___
Davis, the Eleventh Circuit reasoned:
Normally, a court should interpret a
statute in a manner consistent with the
____________________
claim that Bajgar should be denied discharge because Bajgar
fraudulently transferred property within one year before the
filing of the bankruptcy petition falls squarely within the
exception that Section 727(a)(2)(A) enumerates. See 11 ___
U.S.C. 727(a)(2)(A). The Tully court's instruction, _____
therefore, does not control this case.
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plain meaning of the language used in the
statute. The statutory language of
section 727(a)(2)(A) is plain and
unambiguous. Congress certainly was
capable of drafting a statute which would
deny a discharge only when assets were
fraudulently transferred and remained
transferred at the time of filing of
bankruptcy proceedings, but it did not.
We are a court and not a legislative
body; therefore, we are not free to
create by interpretation an exception in
a statute which is plain on its face.
Id. (citations omitted). According to the Eleventh Circuit, ___
therefore, if a debtor fraudulently transfers property within
one year before the filing of a bankruptcy petition, he will
not receive a discharge. See Najjar v. Kablaoui (In re ___ ______ ________ _____
Kablaoui), 196 B.R. 705, 709 (S.D.N.Y. 1996) ("[T]he Eleventh ________
Circuit wholly rejects the debtor's subsequent reconveyance
of the fraudulently transferred property as a defense to a
section 727(a)(2)(A) action.").
While the plain language of Section 727(a)(2)(A)
and the applicable legislative history point to the
conclusion that, upon proper objection, any debtor who
fraudulently transfers property within one year before the
filing of a bankruptcy petition is not entitled to receive a
discharge pursuant to Section 727, irrespective of the timing
of a reconveyance, this case presents us with a debtor who
reconveyed property several months subsequent to filing a
voluntary bankruptcy petition. We need not decide now either
the effect of a reconveyance made prior to the filing of a
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voluntary bankruptcy petition or the question of a re-
transfer effected immediately following the filing of an
involuntary petition.
Despite Section 727(a)(2)(A)'s plain language and
the Davis court's interpretation, Bajgar seeks solace in a _____
Ninth Circuit case, First Beverly Bank v. Adeeb (In re __________________ _____ _____
Adeeb), 787 F.2d 1339, 1344 (9th Cir. 1986), which _____
interpreted the term "transferred" to mean "transferred and
remained transferred" in the context of Section 727(a)(2)(A).
Both the bankruptcy court, see Bajgar, 186 B.R. at 8, and the ___ ______
district court, see Martin v. Bajgar (In re Bajgar), C.A. No. ___ ______ ______ ____________
95-12562-MEL, slip op. at 2 (D. Mass. March 19, 1996), found
Adeeb persuasive in this case. We do not. _____
In Adeeb, the court considered whether or not to _____
discharge an individual ("Adeeb") who transferred property
"with intent to hinder, delay, or defraud a creditor" within
one year of the filing of a petition. See 787 F.2d at 1342, ___
1344. Faced with demands from his creditors, Adeeb consulted
with an attorney who had little bankruptcy experience.
Acting upon his attorney's advice, Adeeb transferred several
properties to third parties. Adeeb then retained an
experienced bankruptcy attorney, who advised him to re-
transfer the properties and to disclose the initial transfers
to his creditors. Adeeb followed this advice and immediately
began to reverse the transfers while notifying his creditors
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of his actions. Before Adeeb could complete the re-transfers
and within one year of the initial fraudulent transfers,
several of his creditors filed an involuntary bankruptcy
petition against him. Determining not to contest this
petition, several days later Adeeb filed a voluntary
petition, "seeking a discharge of his indebtedness." Id. at ___
1342.
The Adeeb court determined that "reading _____
`transferred' . . . to mean 'transferred and remained
transferred' is most consistent with the legislative purpose
of [Section 727(a)(2)(A)]." Id. at 1344. The Adeeb court ___ _____
reasoned:
First, this reading encourages honest
debtors to recover property they have
transferred during the year preceding
bankruptcy. Encouraging debtors to
recover improperly transferred property
facilitates the equitable distribution of
assets among creditors by ensuring that
the trustee has possession of all of the
debtor's assets. Second, this reading
permits the honest debtor to undo his
mistakes and receive his discharge.
Id. at 1345. Treating Adeeb as the subject of an involuntary ___
petition because "[t]he involuntary petition in this case
began the bankruptcy process," id. at 1346 n.4, the court ___
discharged Adeeb. The court held that "a debtor who has
disclosed his previous transfers to his creditors and is
making a good faith effort to recover the property
transferred at the time an involuntary bankruptcy petition is ___________
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filed is entitled to a discharge of his debts if he is
otherwise qualified." Id. at 1346 (emphasis added). ___
The Adeeb court, however, enunciated a different _____
rule with respect to a debtor who files a voluntary _________
bankruptcy petition: "[A] debtor who transfers property
within one year of bankruptcy with the intent penalized by
section 727(a)(2)(A) may not be denied discharge of his debts
if he reveals the transfers to his creditors, recovers ________
substantially all of the property before he files his _____________________________________________________
bankruptcy petition, and is otherwise qualified for a ___________________
discharge." Id. at 1345 (emphasis added). As the Adeeb ___ _____
court explained, this rule demanding recovery prior to the
filing of a petition "assumes the filing of a voluntary
petition by the debtor. In that situation, the debtor
controls the time of filing the petition. He is therefore
able to time the filing to allow recovery of substantially
all of his property." Id. at 1346. Adeeb thus makes clear ___ _____
that the test applicable to a debtor subject to an
involuntary bankruptcy petition differs substantially from
the test the court would apply to a debtor filing a voluntary
bankruptcy petition.
Even were we to adopt Adeeb, its application to the _____
instant case would result in denial of discharge. Bajgar did
not recover any of the transferred property until well after
he filed his voluntary bankruptcy petition. Although the
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bankruptcy court noted the fact that Bajgar did not complete
reconveyance of the property "until several months after the
filing of the petition," Bajgar, 186 B.R. at 9, it determined ______
that because Bajgar revealed the transfer at the time of his
filing, "those facts satisfy the Adeeb test that the recovery _____
be 'prior to the time the bankruptcy petition was filed or
within a reasonable time after it was filed.'" Id. (quoting ___
Adeeb, 787 F.2d at 1346). Contrary to the bankruptcy court's _____
assertion, disclosure constitutes only one component of the
activity necessary to secure discharge under Adeeb. See _____ ___
Adeeb, 787 F.2d at 1345-46. Furthermore, the language that _____
the bankruptcy court relies on from Adeeb applies to an _____
involuntary petition, rather than a voluntary petition: "We
emphasize that the debtor [subject] . . . to the filing of
the involuntary petition . . . must actually recover the
property within a reasonable time after the filing of the ___
involuntary petition." Adeeb, 787 F.2d at 1346 (emphasis ____________________ _____
added). In the case of a voluntary bankruptcy petition, such
as Bajgar filed, however, "[t]he Ninth Circuit requires
actual reconveyance of the fraudulently transferred property ____________________________________________________________
before the bankruptcy filing." Kablaoui, 196 B.R. at 709 ____________________________ ________
(explaining Adeeb) (emphasis added); see also Adeeb, 787 F.2d _____ ___ ____ _____
at 1345-46; March v. Sanders (In re Sanders), 128 B.R. 963, _____ _______ _____________
971 (W.D. La. 1991) ("Court of Appeals decisions . . . have
taken the position that mere disclosure of actions prohibited
-15- 15
by Sec. 727(a)(2)(A) will not prevent denial of discharge.
What may allow discharge is disclosure accompanied by
voluntary prepetition reversal of the prohibited activities . ____________________
. . .") (emphasis added). As the Kablaoui court concluded, ________
"[h]ere the Debtor did not attempt to recover any of the
transferred property before filing for bankruptcy. Thus,
these transfers were not 'undone' under the Ninth Circuit's
definition of 'transfer.'" Kablaoui, 196 B.R. at 709. ________
The bankruptcy court, again relying on Adeeb, _____
endeavored to buttress its construction of Section
727(a)(2)(A) by insisting that construing "transferred" to
mean "transferred and remained transferred" furthers the
general purpose of the Bankruptcy Code. See Bajgar, 186 B.R. ___ ______
at 7-8. We recognize that reading the term "transferred" to
mean "transferred and remained transferred," could be
construed, in certain instances, to advance the "purpose of
the Bankruptcy Act to [distribute] the assets of the bankrupt
. . . among creditors and then to relieve the honest debtor
from the weight of oppressive indebtedness and permit him to
start afresh free from the obligations and responsibilities
consequent upon business misfortunes." Williams v. United ________ ______
States Fidelity & Guarantee Co., 236 U.S. 549, 554-55 (1915); _______________________________
Adeeb, 787 F.2d at 1345. This purpose affords the "honest _____
but unfortunate debtor who surrenders for distribution the
property which he owns at the time of bankruptcy, a new _________________________
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opportunity in life and a clear field for future effort,
unhampered by the pressure and discouragement of preexisting
debt." Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934). ______________ ____
In this case, however, Bajgar did not reveal his
initial fraudulent transfer until he filed his bankruptcy
petition. In addition, Bajgar consulted with an experienced
bankruptcy attorney at the time he executed the initial
fraudulent transfer. It was not until he faced the prospect
of being denied discharge pursuant to Section 727(a)(2)(A)
that Bajgar actually reconveyed the property.
We are not presented with an "honest but
unfortunate debtor" that the Bankruptcy Code envisions as the
deserving recipient of a fresh start. Cf. Huckfeldt v. ___ _________
Huckfeldt (In re Huckfeldt), 39 F.3d 829, 832-33 (8th Cir. _________ _______________
1994) (describing individual who did not constitute "honest
but unfortunate debtor"); Barclays/American Business Credit, __________________________________
Inc. v. Adams (In re Adams), 31 F.3d 389, 393-94 (6th Cir. ____ _____ ___________
1994) (refusing to discharge a debtor pursuant to Section
727(a)(2)(A)), cert. denied, 115 S. Ct. 903 (1995).2 _____ ______
____________________
2. Adeeb, by contrast, did present such a picture. The
Adeeb court explained: _____
We are . . . persuaded by practical
considerations that a discharge should
not be denied in the present situation.
It is not uncommon for an uncounseled or
poorly counseled debtor faced with
mounting debts and pressure from his
creditors to attempt to protect his
property by transferring it to others.
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Contrary to the bankruptcy court's determination, therefore,
denying Bajgar discharge actually comports with the "purpose"
of the Bankruptcy Act. See Grogan v. Garner, 498 U.S 279, ___ ______ ______
286-87 (1991) ("[I]n the same breath that we have invoked
th[e] '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.'"); Citibank, N.A. v. Eashai (In re ______________ ______ _____
Eashai), 87 F.3d 1082, 1088 (9th Cir. 1996) ("This exception ______
to discharge furthers the policy that an honest but
unfortunate debtor obtains a fresh start while a dishonest
debtor does not benefit from his wrongdoing."); Mayer v. _____
Spanel Int'l Ltd., 51 F.3d 670, 674 (7th Cir.) ("Congress _________________
concluded that preventing fraud is more important than
letting defrauders start over with a clean slate, and we must
respect that judgment."), cert. denied, 116 S. Ct. 563 (1995).3 _____ ______
____________________
Upon later reflection or upon obtaining
advice from experienced bankruptcy
counsel, the debtor may realize his
original transfer of property was a
mistake.
Adeeb, 787 F.2d at 1345. At oral argument in the instant _____
case, however, Bajgar's attorney informed us that Bajgar was
well-counseled by an experienced bankruptcy lawyer throughout
the period in question, including the time he executed the
initial fraudulent transfer.
3. As for the Bankruptcy Code's objective of guaranteeing
the equitable distribution of a petitioner's estate among his
creditors, it is likely that our decision, by denying
discharge, will facilitate this outcome by deterring
petitioners from fraudulently transferring property within
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Conclusion Conclusion __________
Martin's claim "comes squarely within" Section
727(a)(2)(A)'s exception for property fraudulently
transferred within one year of the filing of a bankruptcy
petition. See Menna, 16 F.3d at 9. It is for Congress to ___ _____
determine whether or not this exception should be recast. We
REVERSE and REMAND to the district court with instructions to
remand to the bankruptcy court for proceedings consistent
with this opinion.
____________________
one year of filing a voluntary bankruptcy petition in the
first place.
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