In Re Boyer
VANESSA L. BRYANT, District Judge.
The appellant, Republic Credit Corporation I (“Republic“), appeals from the judgment of the bankruptcy court granting a discharge to the debtor, George K. Boyer (“debtor“), in his Chapter 7 bankruptcy proceeding. See In re Boyer, 367 B.R. 34 (Bankr.D.Conn.2007). On appeal, Republic claims that the bankruptcy court made erroneous factual findings and misinterpreted the law. For the reasons given below, the judgment of the bankruptcy court is AFFIRMED.1
The following facts are relevant to this appeal. Republic, which is one of the debtor‘s unsecured creditors, alleged that the debtor had concealed his interest in certain real and personal property that he transferred to his wife, Mary Boyer, for no consideration in the 1980s. Republic further alleged that the debtor‘s son, Kenneth Boyer, employed the debtor from 2000 through 2002 but paid his wages directly to Mary Boyer. Republic filed a complaint against the debtor on July 18, 2003, approximately two years after he filed his Chapter 7 petition. The complaint sought a denial of discharge on the grounds that the debtor had (1) concealed his interests in the real and personal property and wages in violation of
Section 727(a) provides, inter alia, that the bankruptcy court “shall grant the debtor a discharge” as long as the debtor has not concealed his property or knowingly and fraudulently made a false oath.2 Although
The bankruptcy court conducted a trial on Republic‘s complaint over eight days between August 1, 2005 and March 21, 2006 and then issued its decision in favor of the debtor on April 9, 2007. As to Republic‘s claim regarding the allegedly concealed property interests, the court found that Republic had failed to satisfy its burden of proving that the debtor acted with intent to defraud pursuant to
The court also found that Republic had failed to satisfy its burden of proving that the debtor acted knowingly and fraudulently pursuant to
As to Republic‘s claim regarding Kenneth Boyer‘s alleged payment of the debtor‘s wages directly to Mary Boyer, the court found that Kenneth Boyer‘s payments to Mary Boyer did not represent the debtor‘s wages from 2000 to 2002. Instead, the court credited the testimony of Kenneth Boyer and Mary Boyer that the payments related to a loan that Mary Boyer gave to Kenneth Boyer in order to avoid foreclosure of an investment property. In return for a $95,000 loan, Kenneth Boyer agreed to pay Mary Boyer an additional 150 percent of that amount, or $142,500, in the form of biweekly payroll checks from 2000 to 2002, even though Mary Boyer performed no work for Kenneth Boyer‘s business. Mary Boyer requested that arrangement because she wanted to receive health insurance as an employee of Kenneth Boyer‘s company. The court noted that the arrangement “may have been unorthodox” but that Kenneth Boyer and Mary Boyer were credible witnesses. Accordingly, the court rejected Republic‘s claim that the payments were disguised or concealed compensation owed to the debtor for his employment by Kenneth Boyer. Id. at 46-47. On April 16, 2007, Republic filed this appeal from the judgment in favor of the debtor.
Jurisdiction over this appeal is conferred by
On appeal, Republic claims that the bankruptcy court improperly determined that the debtor lacked intent to defraud in connection with the property transfer to Mary Boyer and his omission of that property from his bankruptcy petition, schedules, and statement of financial affairs. “The issue of a debtor‘s intent is a question of fact, or of inference to be drawn from facts, for the bankruptcy court to determine.” In re Estarellas, 338 B.R. 538, 541 (Bankr.D.Conn.2006). As the court in the present case noted, the issue of intent depends “largely upon an assessment of the credibility and demeanor of the debtor.” In re Boyer, 367 B.R. at 44 (citing In re Sterman, 244 B.R. 499, 504-505 (D.Mass.1999)).
Republic argues that the court should not have credited the debtor‘s estate planning explanation for the property transfer to Mary Boyer or the corroborating testimony of the debtor‘s attorney at the time. Republic points out that the debtor‘s attorney did not practice estate planning and that the attorney was a friend and business associate of the debtor, having owned one share of a limited partnership of which the debtor was the general partner, and having transferred that one share to Mary Boyer for no consideration. Republic also cites the lack of evidence that the debtor engaged in estate planning after receiving his attorney‘s advice. Furthermore, Republic argues that despite the debtor‘s transfer to Mary Boyer, he retained all the benefits of ownership of the property and contributed to the mortgage payments, taxes, insurance, maintenance, electricity, and heating. In light of those facts, Republic contends that there were sufficient “badges of fraud”3 for the court to infer fraudulent intent.
Although Republic has identified evidence on which the bankruptcy court reasonably could have found that the debtor had fraudulent intent, the court chose to credit evidence to the contrary. It is not this Court‘s role to retry the case or to weigh the evidence as it sees fit. On the basis of the cold record alone, this Court does not have the definite and firm conviction that the bankruptcy court‘s decision to credit the testimony of the debtor, his attorney, Kenneth Boyer, and Mary Boyer was clearly erroneous.
The judgment of the bankruptcy court is AFFIRMED. The Clerk is directed to CLOSE this file.
IT IS SO ORDERED.
VANESSA L. BRYANT
UNITED STATES DISTRICT JUDGE