Elliott v. Herrera
Elliott v. Herrera
Opinion of the Court
Henry H. Herrera was adjudicated a bankrupt on an involuntary petition filed March 20, 1964. In due course he was granted, over the trustee’s objection, a discharge in bankruptcy. The district court affirmed the order and the trustee has appealed.
Of the several grounds of objection asserted below, those urged in this court are that the bankrupt, within twelve months next preceding the filing of the petition in bankruptcy, transferred and concealed assets with intent to hinder, delay and defraud creditors [11 U.S.C. 32(c) (4)]; that he failed to keep books of account and records [11 U.S.C. 32(c) (2)]; and that he failed to explain satisfactorily losses of assets [11 U.S.C. 32(c) (7)].
Even so, if this was all the evidence touching the issue we would no doubt accept the referee’s ultimate finding that Herrera did not intend to hinder, delay or defraud his creditors for, although a referee’s factual determinations are not conclusive, a reviewing court is most reluctant to substitute its judgment for that of the referee who has observed the witnesses and heard their testimony.
However, the record before us also contains direct evidence in the form of Herrera’s own testimony that the transfer was made to hinder his creditors. Thus, when examined at the first creditors' meeting by Mr. Potts, one of the trustee’s attorneys, Herrera admitted that his “purpose was to just lease the equipment back so that I could keep operating and still somebody wouldn’t go and take it over. I wanted to pay my obligations”; that the assets were transferred in order to put them in another name to prevent their attachment; and that he cashed and kept on his person, rather than deposited and placed in his bank account, three of the checks amounting to $15,000 which he had received as part payment for the transfer, in order to avoid attachment of the money. He frankly stated: “I couldn’t take $25,000, and when I was trying to remedy a situation, and only go and have an attachment. * * * ”
The judgment of the district court is reversed and the matter is remanded with directions to enter an order denying the discharge.
. It is not unlikely that the referee failed to apply the correct or any legal test to the evidence in reaching his conclusion for, when orally stating his decision to grant the discharge, he added this most remarkable comment:
“This bankruptcy has been pending about three years. We have had copious amounts of testimony. We have had Mr. Joe Potts in here who looked like he was going to make a veritable lifetime job out of this. Finally, we had to separate Mr. Potts and some of the witnesses and attorneys. So, we are all of the opinion that Mr. Herrera must have been one of the biggest crooks in the world; and, then the books and records are not in too good shape, but I don’t think it will do the creditors a bit of good to deny his discharge; and from a practical standpoint, let’s don’t waste too much time and argument here despite all the evidence that Mr. MacDonald (the trustee’s special auditor) clearly made in the exhibits that I struck. So I will allow his discharge.”
Reference
- Full Case Name
- Peter M. ELLIOTT, as Trustee in Bankruptcy for the Estate of Henry H. Herrera, dba U. S. Eagle Fertilizer Co. and Gardenland Nursery, Bankrupt v. Henry H. HERRERA, dba U. S. Eagle Fertilizer Co. and Gardenland Nursery, Bankrupt
- Cited By
- 3 cases
- Status
- Published