Shappell's Inc. v. Perry (In Re Perry)Shappell's Inc. v. Perry (In Re Perry)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Proceeding is before the Court on the Complaint Objecting to Discharge and/or to Except Debt from Discharge filed by Shapell’s Inc. (“Plaintiff’) on September 30, 1999. Defendant, Brian 6. Perry (“Debtor”) filed an answer on November 2, 1999. The Court conducted a trial on March 28-29, 2000. In lieu of closing argument, the Court asked the parties to submit proposed findings of facts and conclusions of law, proposed judgments, and memoranda of law. Upon review of the evidence presented and the submissions of counsel, the Court makes
FINDINGS OF FACT
In February 1997, Debtor began doing business as Big Cat Construction (“BCC”). BCC cleared real property for new construction but did no vertical construction. BCC would contract with dirt hauling companies, such as Plaintiff, to assist in clearing lots. Debtor claimed that he underbid a project for a large developer that eventually forced him to cease doing business as BCC. While doing business as BCC, Debt- or maintained an office at 3750 Kori Road, Jacksonville, FL, a mailing address of P.O. Box 56933, and a telephone number of (904) 262-3880. Debtor claimed that he shut down BCC around June or July of 1998. At that time Debtor claimed that BCC’s only assets were leased equipment and account receivables. Debtor claimed that as these receivables were paid, he would pay BCC bills.
On February 21, 1997 Cheryl L. Styers, Debtor’s sister-in-law, registered the fictitious name and began business as Concrete Land and Site Development (“CLSD”). Shortly after Debtor ceased doing business as BCC, he began working at CLSD. While working with CLSD, Debtor did the same kind of land clearing work he did as BCC.
On August 25, 1998, C.R. Styers, Debt- or’s mother-in-law, incorporated Big Cat Construction, Inc. (“BCC, Inc.”). On November 5, 1998, C.R. Styers incorporated Concrete, Land and Site Development, Inc. (“CLSD, Inc.”). 1 BCC, Inc. and CLSD, Inc. had the same listed address, mailing address, and telephone number as BCC.
Sunshine Companies, Inc. provided employees for all of these business entities. Debtor worked for Sunshine Companies, Inc. for over three years, serving as a leased employee to these business entities. No matter which entity Debtor worked for at the time, the same payroll account was used to make payroll with Sunshine Companies, Inc. from September 27, 1996 to June 10, 1999. Additionally, BCC and CLSD were co-insured under the same general liability policy.
Debtor testified as to various financial transactions between these entities. Debt- or’s attitude toward the Court carried the same disregard and disarray as he did toward organization in his business affairs. During June 1998, when Debtor testified that he was closing down BCC, BCC’s ledger indicates cash withdrawals of $37,-739.91. Debtor testified that this money went to CLSD to pay his creditors. In July 1998, Debtor made additional cash withdrawals from BCC in the amount of $6,996.35 and paid $40,731.63 to CLSD. Debtor could not properly account for these transactions and did not introduce any evidence to show that any creditors received payment and if so, in what amount. Debtor testified that one of the reasons he withdrew cash from BCC was to prevent creditors from levying on his assets.
Debtor failed to produce business records.
2
Debtor claimed BCC’s business records no longer existed because business records and a computer containing business records were stolen from the office. Debtor presented no evidence to corroborate this testimony. Debtor testified that his bankruptcy schedules were incorrect, but he intended to file corrected schedules.
3
Debtor testified that CLSD, and
At some point prior to trial Debtor advised Plaintiff that no records existed for BCC, Inc. because BCC, Inc. was never operated as a business. However, BCC, Inc. maintained a bank account at South Trust Bank in Jacksonville, Florida, performed work, collected monies, and disbursed monies. In October of 1998, after BCC had supposedly shutdown, BCC, Inc. received $22,280.00 from BCC and unex-plainably disbursed $25,000.00 to CLSD, Inc. BCC, Inc., CLSD, and BCC frequently wrote checks to each other. Debtor characterized some of these transfers as loans, but these “loans” were not documented.
Charles Styers, Debtor’s father-in-law, testified to the history of these business entities and provided some clarity to Debt- or’s vague recollection of business operations. On the second day of the trial, Charles Styers presented a summary he had prepared after discovering financial documents after the first day of trial. These BCC documents were intermingled with those of CLSD and CLSD, Inc. and showed that CLSD received approximately $76,741.57 from Debtor.
On October 30, 1998 Plaintiff obtained a Final Judgment against Debtor in Case Number 98-4636-CA in the Circuit Court, Fourth Judicial Circuit, Duval County, Florida, in the amount of $70,729.87. On April 19, 1999, Debtor filed a voluntary petition for Chapter 7 bankruptcy relief. On June 17, 1999, Norman P. Freedman, Plaintiffs counsel, issued a subpoena for Rule 2004 examination that commanded C.R. Styers to produce various documents. C.R. Styers did not produce any of the listed documents at the July 9, 1999 2004 examination. On September 30, 1999, Plaintiff filed a Complaint Objecting to Discharge and/or to Except Debt from Discharge. Plaintiff objects to Debtor’s discharge on various grounds. On November 2, 1999, Debtor filed an answer denying material allegations in Plaintiffs Complaint.
CONCLUSIONS OF LAW
Having disposed of issues concerning dischargeability under Section 523 at trial, the only issue that remains is whether Debtor is entitled to a discharge under Section 727 of the Bankruptcy Code. Section 727 provides in pertinent part that:
The court shall grant the debtor a discharge, unless—
(2) 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;
(3) the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case;
(4) the debtor knowingly and fraudulently, in or in connection with the case—
(A) made a false oath or account;
(B) presented or used a false claim;
(C) gave, offered, received, or attempted to obtain money, property, or advantage, or a promise of money, property, or advantage, for acting or forbearing to act; or
(D) withheld from an officer of the estate entitled to possession under this title, any recorded information, including books, documents, records, and papers, relating to the debtor’s property or financial affairs;
(5) the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor’s liabilities;
11 U.S.C. § 727(a) (West 2000).
The Bankruptcy Code favors discharge of the honest debtor’s debts and provisions denying this discharge to a debtor are generally construed liberally in favor of the debtor and strictly against the creditor.
See Cohen v. McElroy (In re McElroy),
Federal Rule of Bankruptcy Procedure 4005 provides that the initial burden of proof on an objection to discharge lies with the plaintiff. FED. R. BANKR. P. 4005. Plaintiff bears the initial burden of proving, by a preponderance of the evidence, that Debtor’s discharge should be denied.
See Grogan v. Garner,
a. Section 727(a)(2)(A).
Pursuant to 11 U.S.C. § 727(a)(2)(A), the objecting party must prove by a preponderance of the evidence that: (1) a transfer occurred; (2) the transfer was of debtor’s property; (3) the transfer was within one year of the petition, and (4) the transfer was done with the intent to hinder, delay, or defraud a creditor or the trustee.
See Williamson Const., Inc. v. Ross (In re Ross),
The preponderance of the evidence establishes that Debtor transferred property within one year of filing his petition with the intent to hinder, delay, or defraud his creditors. Debtor admits to jockeying funds between family-run business entities to avoid such funds being levied by his creditors. Debtor claims that he did not intend to hinder, delay or defraud his creditors when he transferred funds to CLSD,
Debtor transferred funds to keep his business affairs afloat. Debtor paid some creditors with funds he was attempting to keep from other creditors in order to stay in business and had no recollection or records of who was paid and how much they received. Debtor boasted about the cash nature of the business, of making large cash payments to get work done, and of “under the table” business transactions. Debtor stated that he felt like he could stay in business and even felt as if he could revive BCC after he closed down doing business as BCC.
Debtor’s assets were transferred to business entities owned by his relatives, one of the “badges of fraud”. There is additional evidence establishing that Debt- or sought to intentionally deceive his creditors. For these reasons, the Court finds that Plaintiffs objection based on Section 727(a)(2)(A) must be sustained.
b. Section 727(a)(3).
The purpose of Section 727(a)(3) is to give creditors and the bankruptcy court complete and accurate information concerning the status of a debtor’s affairs and to test the completeness of the disclosure requisite to a discharge.
See PNC Bank v. Buzzelli (In re Buzzelli),
Plaintiff established that Debt- or failed to maintain and preserve adequate records. Plaintiff also established that such failure made it impossible to ascertain both Debtor’s financial conditions and material business transactions. Accordingly, the burden shifts to Debtor.
Although not required to provide a full accounting, debtors must produce some records from which a financial condition could be ascertained or show that failure to keep records is justified.
See Clark,
c. Section 727(a)(4).
Section 727(a)(4) provides four distinct grounds to deny a debtor’s dis
Plaintiffs initial burden under Section 727(a)(4)(A) requires establishing that: (1) Debtor made a statement under oath, (2) such statement was false, (3) Debtor knew the statement was false, (4) Debtor made the statement with fraudulent intent, and (5) the statement related materially to the bankruptcy case.
See Congress Talcott Corp. v. Sicari (In re Sicari),
Debtor’s duty in filing his bankruptcy petition was to list all assets and fully answer the questions set forth in the petition. Debtor performed this duty under penalty of perjury. Debtor did not list the numerous transfers to his family’s business entities in his original schedules, rather almost one month after trial Debtor filed an Amended Statement of Financial Affairs.
While Debtor’s omission of these transfers from his schedules constitutes a false oath, the Court finds no evidence that Debtor omitted these transfers with fraudulent intent. Nor does the Court believe that Debtor’s counsel acted improperly in the underlying bankruptcy matter or in the discovery stage of this adversary proceeding as Plaintiff suggested. The acts giving rise to Debtor not receiving a discharge occurred prior to Debtor’s filing for bankruptcy protection and fall squarely on Debtor’s shoulders. Nevertheless, Plaintiff failed to establish that Debtor’s discharge should be denied under Section 727(a)(4) and the objection based on Section 727(a)(4) overruled.
d. Section 727(a)(5).
Section 727(a)(5) works in tandem with Section 727(a)(3), to foster the same process of investigation and disclosure, by requiring that debtors give a satisfactory explanation of their insolvency, after commencing their bankruptcy case.
See PNC Bank,
Additionally, as with Section 727(a)(3), the burden shifts to a debtor to explain losses or deficiencies once evidence of disappearance of substantial assets is
As is the case with inquiry under Section 727(a)(3), there is no time limitation under Section 727(a)(5) as to events and transactions occurring within a specific number of months or years before the bankruptcy case.
See PNC Bank,
If the Court could find Debtor’s testimony to be convincing in this case, then an objection under Section 727(a)(5) could not be sustained. However, the Court does not find Debtor’s testimony to be convincing with regard to disposal of large amounts of cash he admittedly received. Debtor claims that he paid BCC creditors with this money, but there is simply no evidence to corroborate Debtor’s testimony. Accordingly, Plaintiffs objection under Section 727(a)(5) must be sustained.
CONCLUSION
For the reasons discussed above, the Court finds that Debtor is not entitled to a bankruptcy discharge pursuant to Section 727 of the Bankruptcy Code. A separate judgment will be entered in accordance with these Findings of Fact and Conclusions of Law.
Notes
.C.R. Styers testified that her daughter, Cheryl Styers, owned CLSD, and that C.R. Styers took over CLSD without formal agreement. C.R. Styers incorporated CLSD, Inc. and testified that she felt CLSD and CLSD, Inc. were essentially the same entities. When BCC shut down, CLSD, assisted by Debtor, took over BCC’s major accounts and employed BCC's workers.
. Plaintiff received BCC's general ledgers and journals from Debtor's accountant.
. Debtor filed an Amended Statement of Financial Affairs on April 28, 2000. (Doc. 48.)