A.Y. McDonald Indus., Inc. v. McDonald (In re McDonald)

586 B.R. 32
CourtUnited States Bankruptcy Court, N.D. Iowa
DecidedApril 20, 2018
DocketBankruptcy No. 17–00400; Adversary No. 17–09033
StatusPublished
Cited by2 cases

This text of 586 B.R. 32 (A.Y. McDonald Indus., Inc. v. McDonald (In re McDonald)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.Y. McDonald Indus., Inc. v. McDonald (In re McDonald), 586 B.R. 32 (Iowa 2018).

Opinion

THAD J. COLLINS, CHIEF BANKRUPTCY JUDGE

This matter came before the Court for telephonic hearing on January 24, 2018. Brian Kane appeared for Plaintiff, AY McDonald Industries, Inc. ("AY"). Michael McDonald ("Debtor") appeared for himself pro se. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I).

*36STATEMENT OF THE CASE

Debtor was formerly a member of the board of directors and an officer of AY, as well as an employee of an AY subsidiary. Debtor was fired or resigned from all of his positions with AY and its subsidiary after the company learned he had misappropriated funds. Debtor signed a promissory note and Restitution Agreement in which he agreed to pay restitution to AY and liquidate property to make payments on the promissory note. In a later Amendment to Restitution Agreement, Debtor also agreed to sign a power of attorney ("POA") allowing the appointed attorney-in-fact to pay over to AY distributions Debtor received from two spendthrift trusts. In exchange, AY agreed to cease collection activities. This POA remained in place until Debtor attempted to revoke it on the same day he filed for bankruptcy.

In this adversary action, AY asks the Court to find the debt Debtor owes to AY to be nondischargeable under 11 U.S.C. § 523(a)(4) and 11 U.S.C. § 523(a)(6). AY also asks the Court to declare Debtor's attempted revocation of his POA invalid and enjoin him from attempting to do so in the future. Finally, AY asks the Court to dismiss Debtor's counterclaim that AY violated Iowa Code § 633A.2302(2) and that he is entitled to damages for this purported violation. AY filed a Motion for Summary Judgment on these issues. Debtor, acting pro se, filed an objection to AY's Motion on February 26, 2018.

The Court finds that summary judgment is appropriate. The Court dismisses Debtor's counterclaim with prejudice. The Court denies AY's Motion for Injunctive and Declaratory Relief, finding that the proper remedy for Debtor's revocation of his POA is AY's release from its obligation to cease collection activities under the Amendment to Restitution Agreement. Finally, the Court finds that Debtor's debt to AY is nondischargeable under 11 U.S.C. § 523(a)(4).

STATEMENT OF THE FACTS

From October of 1983 to May of 2012, Debtor was an employee of A.Y. McDonald Mfg. Co., which is a subsidiary of AY. From October of 1983 to May of 2012, Debtor was a member of the board of directors of AY. From 1989 to May of 2012, Debtor was an officer of both A.Y. McDonald Mfg. Co. and AY. Immediately before his termination, Debtor was Senior Vice President of AY.

Part of Debtor's duties as Senior V.P. of AY was to manage payroll for executive compensation. At some point before May 2012, AY learned that Debtor authorized payments to himself which were disproportional to payments made to other executives. AY believed these payments were improper. On May 1, 2012, AY terminated Debtor as an employee of A.Y. McDonald Mfg. Co. and as Senior V.P. of AY. On that same day, Debtor resigned from AY's board of directors.

On May 16, 2012, McGladrey LLC, an accounting firm, issued a letter to AY summarizing the payments Debtor authorized to himself. AY then hired Control Risks, a risk assessment consulting firm, to investigate Debtor. Control Risks sent two consultants to AY's office in Dubuque to interview Debtor and several other individuals regarding Debtor's actions. In his interview with Control Risks, Debtor made several incriminating statements regarding misappropriation of AY funds. Control Risks issued a report summarizing its interview with Debtor, making recommendations regarding efficient restitution arrangements, and providing a detailed list of Debtor's assets.

On July 19, 2012, Debtor signed a promissory note agreeing to pay AY $2,538,500 for the misappropriated funds. On August *3731, 2012, Debtor signed a Restitution Agreement in which he acknowledged that he engaged in conduct not authorized by AY's board of directors and agreed to pay AY the amount listed in the promissory note as restitution. Under the Restitution Agreement, Debtor also agreed to liquidate, or use his best efforts to liquidate, property, including his 401k, and to pay liquidation proceeds toward the promissory note. In the Restitution Agreement, Debtor also agreed to sign a Statement of Confession of Judgment, which AY would file in state court in the event that Debtor defaulted under the Restitution Agreement.

Debtor defaulted on the Restitution Agreement on June 13, 2013. AY filed the Statement of Confession of Judgment in Dubuque County District Court, Case No. 01311 LACV058015. AY alleged that Debtor defaulted under the Restitution Agreement by failing to liquidate his 401k. Judge Margaret Lingreen signed and entered a Judgment of Confession the same day for the amount then owing on the promissory note, $1,325,174.89. Debtor filed a Motion to Vacate that judgment. Judge Michael Shubatt denied Debtor's Motion to Vacate on November 11, 2013.

AY made various collection efforts against Debtor after he defaulted under the Restitution Agreement. On October 21, 2014, Debtor signed the Amendment to Restitution Agreement (the "Amendment"). Under the Amendment, AY agreed to cease collection activities against Debtor if he executed a POA. Debtor did so and under this POA the appointed attorney-in-fact received Debtor's quarterly income payments from two trusts of which Debtor was a beneficiary, the J. Bruce McDonald Trust and the Delos L. McDonald Trust. The attorney-in-fact paid those disbursements to AY. From December 2014 to March 2017, AY received a total of $167,134.21 in payments under this arrangement.

Debtor filed for bankruptcy on April 10, 2017. AY filed a Motion for Relief from Stay on May 19, 2017. On May 22, 2017, AY filed its first adversary, Adversary Proceeding No. 17-09027, asking this Court to find its debt nondischargeable under 11 U.S.C. § 523(a)(4) and 11 U.S.C. § 523(a)(6). On May 31, 2017, Debtor's attorney mailed to AY a document that purported to revoke Debtor's POA. Debtor signed it dated May 10, 2017.

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Bluebook (online)
586 B.R. 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ay-mcdonald-indus-inc-v-mcdonald-in-re-mcdonald-ianb-2018.