J & R Investment Co. v. Anthony (In re Anthony)
J & R Investment Co. v. Anthony (In re Anthony)
Opinion of the Court
MEMORANDUM DECISION
Prosecuting a bankruptcy case without the assistance of competent counsel is a risky endeavor, and one that occurs with unfortunate frequency in the District of Utah. For some debtors with straightforward financial circumstances and nobody chasing them, errors and inconsistencies in their filings may require additional investigation and explanation but will not ultimately jeopardize their ability to complete a chapter 7 case and obtain a discharge of their prepetition debts. But for Michael Anthony, with a motivated creditor on his heels, his decision to file a chapter 7 case without an attorney has led to years of additional conflict culminating in a two-day trial as to whether his December 2011 discharge should be revoked under
I. FACTS
The Debtor, Michael Anthony, began renting commercial storage space for his Freedom Storage business from the Plaintiff, J & R Investment Company, when it was run by John and Rita Billinis.
J & R obtained an order of partial summary judgment against Anthony in December 2007 for $169,743.24, but J & R did not get that order certified as final until August 2010.
J & R had no apparent basis for seeking nondischargeability of Anthony’s debt under § 523, and J & R filed no such complaint before the December 5, 2011 due date despite receiving proper notice of the bankruptcy case and relevant deadlines. Anthony completed all of his bankruptcy requirements, and nobody filed a § 727 complaint, so the Court issued Anthony a general discharge of his debts on December 6, 2011. But Anthony left J & R an opening thanks to the content of his self-completed bankruptcy papers. J & R conducted (or attempted to conduct) substantial discovery in the main case before ultimately filing this adversary proceeding on December 4, 2012 — two days shy of § 727(e)’s one-year deadline for seeking revocation of a debtor’s discharge under § 727(d)(1). The kitchen-sink complaint and its attachments totaled 125 pages and alleged claims for relief under each of § 727(d)(1), (2), and (3).
At trial, J & R alleged that Anthony made a number of errors and omissions that justify the revocation of his discharge. These include the following: (1) filing a false Payment Advices Certification;
II. DISCUSSION
A. Automatic Dismissal Under § 521(i)
At the start of the trial, Anthony made an oral motion for the Court to find that his main bankruptcy case had been automatically dismissed under § 521(i) retroactively effective as of the 46th day after the August 31, 2011 petition date. He argued that this result was mandated because of his admitted failure to file “copies of [two] payment advices or other evidence of payment” under § 521(a)(l)(B)(iv) as referenced in his Amended Payment Advices Certification filed in the main case on July 9, 2014 as docket # 48.
Countless cases have addressed the meaning and effect of “automatic dismissal” under the awkward language of § 521(a)(1) and (i), and the Court will not belabor the point here. Suffice it to say that whatever discretion the Court retains to “order[ ] otherwise” under § 521(a)(1)(B), this is the quintessential case for exercising such discretion.
The motion is denied.
B. § 727(d)(1)
Section 727(d)(1) provides that the Court “shall revoke a discharge granted under subsection (a) of this section if such discharge was obtained through the fraud of the debtor, and the requesting party did not know of such fraud until
J & R couches Anthony’s alleged fraud solely in terms of § 727(a)(4)(A), which provides that the Court “shall grant the debtor a discharge, unless the debtor knowingly and fraudulently, in or in connection with the case, made a false oath or account.”
Thus, a debtor’s discharge may be barred if he knowingly and fraudulently makes a false oath in or in connection with the case. A debtor's petition, schedules, statement of financial affairs, statements made at a 341 meeting, testimony given at a Federal Rule of Bankruptcy Procedure 2004 examination, and answers to interrogatories all constitute statements under oath for purposes of § 727(a)(4). The same holds true for deposition testimony and testimony at other hearings during the course of the bankruptcy case. The false oath also need not be an affirmative misstatement; knowing and fraudulent omissions will also suffice.
It is the purpose of § 727(a)(4) to enforce a debtor’s duty of disclosure and to ensure that the debtor provides reliable information to those who have an interest in the administration of the estate. The trustee and the creditors have the right to information that will allow them to evaluate the case and administer the estate’s property. Thus, complete financial disclosure is a condition precedent to the privilege of discharge.
Before the Court may deny a debtor’s discharge under § 727(a)(4)(A), however, the plaintiff must demonstrate that the debtor (1) knowingly and fraudulently made a false oath and (2) that the false oath relates to a material fact. A debtor will not be denied discharge if a false*837 statement is due to mere mistake or inadvertence. Moreover, an honest error or mere inaccuracy is not a proper basis for denial of discharge. However, reckless indifference to the truth ... has consistently been treated as the functional equivalent of fraud for purposes of § 727(a)(4)(A)-. Reckless disregard means not caring whether some representation is true or false.[23 ]
It is also true, as with § 727(a)(2), that no actual detriment to a creditor needs to be shown. A statement or omission is material under § 727(a)(4)(A) if it bears a relationship to the debtors’ business transactions, or if it concerns the discovery of assets, business dealings, or the existence or disposition of the debtors’ property. It is the debtors’ duty to disclose everything, not to make decisions about what they deem important enough for parties in interest to know.
Finally, factors considered under § 727(a)(4)(A) [when examining the totality of the circumstances] may include the number of omissions; the debtor’s profession as it relates tq the omissions; how the omission is discovered and how quickly the debtor rectifies the omission; any pattern to the omission; failure to correct all of the inconsistencies and omissions upon making allegedly curative amendments; whether the debtor had access to an attorney; whether the debtor was attempting to place his personal funds beyond the reach of creditors; the seriousness with which the debtor regarded his duties under the Code; and whether the false statements were made in an attempt to advance the debtor’s own interests. Even a debtor’s purported inexperience with financial affairs does not negate the fact that he made false oaths by knowingly swearing to false information.”24
With all this as prologue, the heart of this matter really involves Anthony’s income from his own business operations and his work as property manager for E.Z. Storage and One Unit Investments. One point of agreement between the parties is that Anthony failed to list the income that he received from Freedom Storage for 2009, 2010, and 2011 anywhere in his SOFA, Schedules, or Form 22A. Instead, he only listed income of $1,500/month from E.Z. Storage and $738/month from One Unit Investments. But he did disclose Freedom Storage in several locations— namely in Questions # 1 and 18a in the SOFA, and in Question # 14 in Schedule B — and consistently listed it as a defunct dba with no income and no value. In addition to this disclosure, the Court found Anthony to be credible when he testified that he was confused and focused on E.Z. Storage and One Unit Investments when he was completing his bankruptcy papers, because those were his income sources that still existed at the time.
J & R introduced transcripts of Anthony’s 2009, 2010, 2011, and 2012 tax returns into evidence,
As for his income from E.Z. Storage and One Unit Investments, the state of this record is inconclusive at absolute best. To be sure, the documents in evidence are riddled with inconsistencies, but anything beyond that is unclear. J & R tried to paint a picture of Anthony as a profit-sharing partner with Katherine in E.Z. Storage and One Unit Investments rather than a salaried employee, but the evidence does not bear that out.
Katherine’s credible testimony combined with copies of checks received by Anthony support the view that Katherine paid him as either a salaried employee or independent contractor, essentially as Katherine saw fit based on net profits for the month and without Katherine issuing him either a Form W-2 or 1099.
All told, the inconsistent numbers only create some smoke but point to no fire. Even J & R’s expert, Craig McQuarrie, could say nothing more than that discrepancies existed. But for all of these inconsistencies, J & R did not make a prima facie showing that Anthony listed an incorrect nature or understated amount of his income from E.Z. Storage and One Unit Investments.
As discussed above, Anthony admitted to receiving two “payment advices or other evidence of payment” in the 60 days before the petition date that he failed to disclose in his Payment Advices Certification.
The rest of J & R’s allegations can be disposed of in relatively short order. J & R offered no evidence that Anthony had any undisclosed interests in real property except for Katherine’s handwritten notes on two documents.
In sum, the Court finds that any true errors in Anthony’s bankruptcy papers were the result of his genuine ignorance, ineptitude, and confusion rather than any knowing fraud or even recklessness. So whether viewed as J & R failing to make a prima facie case on any particular allegation or Anthony’s successful rebuttal of a properly made prima facie case, J & R has not met its burden to demonstrate the requisite fraud by a preponderance of the evidence. Accordingly, Anthony’s discharge will not be revoked under § 727(d)(1).
C. § 727(d)(2)
Section 727(d)(2) provides that the Court “shall revoke a discharge granted under subsection (a) of this section if the debtor acquired property that is property of the estate, or became entitled to acquire property that would be property of the estate, and knowingly and fraudulently failed to report the acquisition of or entitlement to such property, or to deliver or surrender such property to the trustee.” Although there is some question in the case law, “[a] careful reading of this section reveals that it applies only to property acquired by a debtor after his petition has been filed.”
D. Attorney’s Fees and Costs
In his trial brief, Anthony requested that J & R be required to pay all of his attorney’s fees and costs “for the harassment and having to defend against this frivolous action,” and he reiterated the request at the end of closing arguments. But Anthony fails to reference any statute, rule, or other basis for such an award. And although the allegations may have morphed slightly over time and J & R did not ultimately prevail, the complaint was far from frivolous in the main, and Anthony himself started this train down the wrong track.
The request is denied, and each party shall bear its own attorney’s fees and costs.
III. CONCLUSION
It is a well known adage in the legal community that a person who represents himself has a fool for a client. Such is unfortunately the case here. Michael
. All statutory references are to title 11 of the United States Code unless otherwise indicated.
. This Memorandum Decision constitutes the Court’s findings of fact and conclusions of law under Federal Rule of Civil Procedure 52, made applicable to this adversary proceeding by Federal Rule of Bankruptcy Procedure 7052. Any of the findings of fact herein are also deemed to be conclusions of law, and any conclusions of law herein are also deemed to be findings of fact, and they shall be equally binding as both.
. Some of the background facts are taken from the Affidavit of Barbara Billinis Coles-sides filed on July 8, 2014 as docket # 87. Given Barbara’s self-caused unavailability at trial and the limited purpose of her testimony, the Court permitted her testimony to be presented by affidavit. As her affidavit does not affect the outcome of this adversary proceeding, the Court accepts the factual statements contained therein — including as to J & R’s lack of knowledge of any alleged fraud until after Anthony's discharge was granted — and there is no need for Anthony to cross-examine her.
. Pltf. Exh. WW; Def. Exh. 1.
. Pltf. Exh. A, Tabs E and F.
. Pltf. Exh. A, Tab B. As of the bankruptcy petition date, J & R asserted a claim of $213,530.88 plus prepetition attorney’s fees. See Pltf. Exh. W.
. Def. Exh. 4.
. Pltf. Exh. Q. J & R also got a writ of execution issued by the state court in August 2011, but it was apparently not served before the bankruptcy petition date. See Pltf. Exh. S.
. Docket # 40 in main case # 11-32787.
. With J & R’s consent at the April 14, 2014 final pretrial conference, the Court dismissed the § 727(d)(3) count because J & R had no basis to allege that Anthony committed any of the acts specified in § 727(a)(6).
. Pltf. Exh. OO.
. Pltf. Exhs. C-E.
. Pltf. Exhs. SS and TT.
. Uncontroverted Fact #38 in the Pretrial Order (docket # 63) references a 2007 real property transaction, but there was no discussion of this issue at trial. On June 30, 2014, the Court denied J & R’s belated request to conduct additional discovery regarding any insurance claims related to the prepetition wreck of Anthony’s 1997 Ford Escort. This issue was also not discussed at trial.
. At trial, J & R attempted to revisit an issue that was partially broached as early as the February 20, 2014 hearing on J & R’s Motion for Relief Pursuant to Bankruptcy Rules 7016(f) and 7037(b) — namely, whether Anthony had anything to do with the failure and/or refusal of Katherine and Victor Romero to participate in discovery. At trial, there was no evidence presented to support this notion. But because of the actions of Katherine and Victor Romero during the discovery phase of this adversary proceeding, the Court gave J & R substantial latitude in questioning these witnesses at trial.
. See, e.g., Segarra-Miranda v. Acosta-Rivera (In re Acosta-Rivera), 557 F.3d 8, 14 (1st Cir. 2009) (“Where ... there is no continuing need for the information or a waiver is needed to prevent automatic dismissal from furthering a debtor’s abusive conduct, the court has discretion to take such an action” even after the 45th day has passed.); Wirum v. Warren (In re Warren), 568 F.3d 1113 (9th Cir. 2009) (agreeing with Acosta-Rivera); Simon v. Amir (In re Amir), 436 B.R. 1 (6th Cir. BAP 2010) (agreeing with Acosta-Rivera and Warren).
. Lawrence Nat’l Bank v. Edmonds (In re Edmonds), 924 F.2d 176, 180 (10th Cir. 1991).
. Wilson & Muir B. & T. Co. v. Eifler (In re Eifler), Adv. No. 12-3052, 2013 WL 3300639, at *23 (Bankr.W.D.Ky. July 1, 2013) (analyzing § 727(a)(2)); see also Lincoln Sav. Bank v. Freese (In re Freese), Adv. No. 09-9140, 2010 WL 2978527, at *2 (Bankr.N.D.Iowa July 27, 2010) (describing intent as a "critical factual question” under § 727(a)(4)(A)).
. Murphy v. Vanschoiack (In re Vanschoiack), 356 B.R. 56, 65 (Bankr.D.Idaho 2006). Anthony was agitated at times on the stand, but the Court found his demeanor and testimony to be credible. The Court also found his lack of sophistication and confusion over tax, business, and overall financial issues to be sincere.
. Freelife Int'l, LLC v. Butler (In re Butler), 377 B.R. 895, 915 (Bankr.D.Utah 2006); see also Saviano v. Tylee (In re Tylee), 512 B.R. 409, 415-16 (Bankr.E.D.N.Y. 2014) (discussing the shifting burden in an action under § 727(d)(1) and (a)(4)(A)); Fed. R. Bankr.P. 4005.
. Davis v. Osborne (In re Osborne), 476 B.R. 284, 297 (Bankr.D.Kan. 2012).
. See, e.g., Lincoln Nat’l Life Ins. Co. v. Silver (In re Silver), 367 B.R. 795, 805-06 (Bankr.D.N.M. 2007) (analyzing the history of § 727(d)(1) and its connection to § 727(a)(2)-(5)).
. Cf. Schechter v. McAniff (In re McAniff), Adv. Nos. 03-A-4407 and 03-A-4408, 2004 WL 1146699, at *5 (Bankr.N.D.Ill. May 21, 2004) (discussing "ignorance or ineptitude” and stating that "if the debtor was inept, he may or may not have been sufficiently reckless as to imply fraud”); Buckeye Ret. Co., LLC v. Heil (In re Heil), 289 B.R. 897, 903 (Bankr.E.D.Tenn. 2003) ("A discharge may not be revoked based upon a debtor’s ignorance of the law or carelessness of the parties.”).
. Butler, 377 B.R. at 922-24 (Bankr.D.Utah 2006) (internal quotes and citations omitted).
. Pltf.Exhs.M-P.
. See, e.g., In re Castle Arch Real Estate Inv. Co., LLC, No. 11-35082, 2013 WL 1603319, at *8 (Bankr.D.Utah Apr. 15, 2013) (“Even equipoise of the evidence is not enough for the party with the burden of proof to prevail.’’).
. See, e.g., Pltf. Exhs. W-Y; Def. Exh. 2.
. See Pltf. Exhs. H and L (which are color versions of Pltf. Exhs. KK, Bates # s TXPLS 59 and 27, respectively).
. See Pltf. Exhs. H and KK, Bates # s TXPLS 52-53.
. See Pltf. Exh. KK, Bates # TXPLS 52, Column C.
. When comparing just the net income from Anthony’s 2009-12 tax return transcripts with the income listed in his Schedules, SOFA, and Form 22A, the bankruptcy papers actually allege more income than the transcripts.
. Pltf. Exh. OO.
. Pltf. Exhs. J and LL, Bates # SHIELD 63.
. Def. Exh. 4.
. Pltf. Exhs. SS and TT.
. Docket # s 64 and 70, respectively.
. Citicorp Real Estate, Inc. v. DaMaia (In re DaMaia), 217 F.3d 838, 2000 WL 977395, at *2 (4th Cir. 2000) (table).
. Cf. State Bank of India v. Kaliana (In re Kaliana), 207 B.R. 597 (Bankr.N.D.Ill. 1997) (denying award of attorney's fees and costs under Rule 9011 in § 727(d) action).
Reference
- Full Case Name
- In re Michael Frederick ANTHONY, Debtor. J & R Investment Company, a Utah limited partnership v. Michael Frederick Anthony
- Cited By
- 3 cases
- Status
- Published