Beloff v. Gallini (In Re Gallini)

96 B.R. 491, 1989 Bankr. LEXIS 251, 1989 WL 17799
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedFebruary 27, 1989
DocketBankruptcy No. 5-88-00144, Adv. No. 5-88-0058
StatusPublished
Cited by7 cases

This text of 96 B.R. 491 (Beloff v. Gallini (In Re Gallini)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beloff v. Gallini (In Re Gallini), 96 B.R. 491, 1989 Bankr. LEXIS 251, 1989 WL 17799 (Pa. 1989).

Opinion

OPINION AND ORDER

THOMAS C. GIBBONS, Bankruptcy Judge:

This proceeding is before the Court on Complaint of the plaintiff, Jerome Beloff (hereinafter “Plaintiff”) objecting to the discharge of Patricia Gallini (hereinafter “Debtor”) pursuant to both 11 U.S.C. § 727 and § 523. For the reasons provided herein, the debtor’s discharge is hereby denied.

The two count complaint initiating this proceeding raises allegations under both 11 U.S.C. § 727 and § 523(a)(2) and (4). At the time of trial, the plaintiff made a request that the Court proceed to hear evidence only on the § 727 count and, if necessary, conduct a hearing in the future on the § 523 count. Defendant argued that both matters should be heard because the testimony elicited would prove that there was no debt due and owing from the debtor to the plaintiff. After hearing oral argument, the Court determined to hear evidence on the allegations of the § 727 count. Based upon the evidence adduced at trial, we find that plaintiff has met its burden under § 727 resulting in a general denial of debt- or’s discharge.

The facts are as follows. The debtor was the owner of real property known as “The Maple Lawn Inn” until on or about July 17, 1987 when the property was sold and the debtor collected the net proceeds from the sale approximating $258,716.43. Shortly thereafter, the debtor embarked on a cross country trip with a friend ending in Las Vegas, Nevada, where, according to the debtor, she gambled at various casinos and suffered losses approximating $245,000 within a two week period. Debtor returned home from her gambling trip with approximately $5,000. Debtor has no receipts and can present no evidence, either written or oral, to substantiate her claim of gambling losses. Prior to the debtor’s trip to Las Vegas, she had no real gambling experience.

The plaintiff’s primary interest in this matter is a claim that pursuant to a certain property settlement agreement entered into between the parties, the plaintiff was to receive approximately half of the proceeds of the sale of debtor’s real property. Consequently, he objects to the debtor’s discharge because of her failure to properly explain the loss of the proceeds of the sale. Debtor responds that she has adequately explained the dissipation of the assets by her acknowledgment of the receipt of the funds from the proceeds of the sale of the property and her subsequent trip to Las Vegas resulting in gambling losses approximating $245,000.

DISCUSSION

Section 727(a)(5) reads in pertinent part as follows:

§ 727. Discharge.
(a) The court shall grant the debtor a discharge, unless—
(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;

While the cases concerning a debtor’s failure to satisfactorily explain the loss of assets under § 727(a)(5) are legion, this court has found no better discussion nor more comprehensive compilation of cases dealing with this section than that presented in In re Drenckhahn, 77 B.R. 697 (Bankr.D.Minn.1987), where the court at p. 709 writes as follows:

“On its face, the statute allows a debtor to make satisfactory explanation of loss or deficiency of assets at any time ‘before determination of denial of discharge under [the] paragraph.’ Thus, a debtor may come forward with an explanation of loss or deficiency of assets during the *493 trial of an objection to discharge under § 727(a)(5), and present that explanation to the court for its determination as to whether or not it is satisfactory. It is clear, however, that this section is directed toward insuring debtors’ accountability for past transactions, and does not require or even allow inquiry into the substantive character of the loss or deficiency of assets itself. In re Nye, 64 B.R. 759, 762 (Bankr.E.D.N.C.1986). Section 727(a)(5) does not require that the explanation itself be meritorious, or that the loss or other disposition of assets be proper; it only requires that the explanation satisfactorily describe or account for the disposition. Id. The court’s inquiry is limited to whether the debtor has made or now makes an explanation for the loss or deficiency of assets at issue, and whether that explanation is satisfactory. These are questions of fact. In re Chalik, 748 F.2d 616, 619 (11th Cir.1984); In re Stuerke, 61 B.R. 623, 626 (Bankr. 9th Cir.1986). To be satisfactory, the explanation must convince the bankruptcy judge. In re Chalik, 748 F.2d at 619; In re Reed, 700 F.2d 986, 993 (5th Cir.1983); In re Yokley, 61 B.R. 198, 200-01 (Bankr.W.D.Ky.1986). The standard is one of reasonableness and credibility. In re Hendren, 51 B.R. 781, 788 (Bankr.E.D.Tenn.1985); In re Cohen, 47 B.R. 871, 874 (Bankr.S.D.Fla.1985). The debtor must explain his losses in such a manner as to evidence his good faith in the conduct of his financial affairs and in his efforts to make the explanation. In re Shapiro, 59 B.R. 844, 848; In re Hendren, 51 B.R. at 788 (Bankr.E.D.N.Y.1986); In re Cohen, 47 B.R. at 874; In re Wheeler, 38 B.R. 842, 846 (Bankr.E.D.Tenn.1984). The question of satisfactoriness again turns on the nature of the debtor’s business, financial affairs and lifestyle, In re Glaser, 49 B.R. 1015, 1020 (S.D.N.Y.1985), and the Court is afforded broad discretion to make the determination in light of all the circumstances before it. In re Martin, 698 F.2d 883, 886 (7th Cir.1983); In re Blasini, 67 B.R. 373, 375 (D.P.R.1986); In re Cohen, 47 B.R. at 875. In any event, the debtor must come forward with something more than generalized, vague, and uncorroborated statements in oral testimony. In re Dolin, 799 F.2d 251, 253 (6th Cir.1986); In re Chalik, 748 F.2d at 619; In re Martin, 698 F.2d at 886; In re Stuerke, 61 B.R. at 626; In re Blasini, 67 B.R. at 375; In re DeGase, 68 B.R. 504, 510 (Bankr.W.D.Mo.1986); In re Simone, 68 B.R. 475, 479 (Bankr.W.D.Mo.1983); In re Yokley, 61 B.R. at 200-01; In re Schermer, 59 B.R. 924, 925 (Bankr.W.D.Ky.1986) In re Delancey, 58 B.R. 762, 769 (Bankr.S.D.N.Y.1986); In re Switzer, 55 B.R. 991, 998 (Bankr.S.D.N.Y.1986); In re Hendren, 51 B.R. at 783; In re Ramos, 8 B.R. 490, 496 (Bankr.W.D.Wis.1981). Many cases appear to require production of actual books, financial records, and documents to corroborate a debtor’s in-court testimony.

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Bluebook (online)
96 B.R. 491, 1989 Bankr. LEXIS 251, 1989 WL 17799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beloff-v-gallini-in-re-gallini-pamb-1989.