Bub v. Rockstone Capital, LLC

516 B.R. 685, 2014 U.S. Dist. LEXIS 87286, 2014 WL 2882613
CourtDistrict Court, E.D. New York
DecidedJune 25, 2014
DocketNo. 14-cv-546 (JFB)
StatusPublished
Cited by18 cases

This text of 516 B.R. 685 (Bub v. Rockstone Capital, LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bub v. Rockstone Capital, LLC, 516 B.R. 685, 2014 U.S. Dist. LEXIS 87286, 2014 WL 2882613 (E.D.N.Y. 2014).

Opinion

[688]*688memorandum and order

JOSEPH F. BIANCO, District Judge.

Keith Bub (“Bub” or “debtor”) appeals from an order entered by the United States Bankruptcy Court for the Eastern District of New York (the “Bankruptcy Court”) in the underlying bankruptcy proceeding. After trial and in an opinion dated November 13, 2013 (the “November 13 Order” or “Bankr.Ct. Op”), the Honorable Robert E. Grossman denied debtor’s discharge, pursuant to 11 U.S.C. § 727(a)(4)(A), on the grounds that debtor made false and fraudulent statements regarding his income and expenses, and his company’s assets and liabilities, with the intent to deceive the creditors and the Bankruptcy Court.

On appeal, Bub argues that the November 13 Order should be reversed and that he should be granted a discharge, or that the case be remanded for an evidentiary hearing, because the Bankruptcy Court erroneously concluded that Bub falsely and intentionally underrepresented his income and the amount of funds he drew from his business, The Storage Guys, Inc. (“The Storage Guys”); misrepresented his monthly expenses; and misrepresented The Storage Guys’ assets and liabilities. Bub argues that the Bankruptcy Court did not thoroughly analyze the evidence and should have sought additional information, and that the evidence does not support a finding of falsehoods or intent to deceive. Appellee Rockstone Capital, LLC (“Rock-stone”) opposes and argues, inter alia, that, in addition to the false statements in Bub’s Schedules and Statement of Financial Affairs, upon which the Bankruptcy Court correctly relied in reaching its determination, “[t]he court properly detailed wrongful conduct to demonstrate that Debtor has engaged in a long campaign of hiding assets and of false statements under oath in his efforts to evade legitimate efforts of creditors to recover on their claims and that Debtor’s falsehoods continued in his bankruptcy schedules and his evasive testimony at the trial of this action.” (Appellee’s Brief, at 3.)

For the reasons set forth below, the Court finds debtor’s arguments on appeal to be unpersuasive and affirms the Bankruptcy Court’s November 13 Order. Specifically, having carefully reviewed the record, the Court concludes that the Bankruptcy Court’s determination that debtor made several false statements knowingly and with fraudulent intent was not clearly erroneous. Therefore, the Bankruptcy Court did not err in entering judgment in favor of Rockstone on its third, fourth, and fifth causes of action.1

I. BACKGROUND

A. Facts2

Rockstone is a creditor of debtor pursuant to a judgment entered in New York State Supreme Court, Suffolk County, on May 27, 2009, in the amount of $632,466.80. [689]*689(Complaint Objecting to Discharge ¶ 2, R-1.) The debt arose in connection with a loan guaranteed by debtor and made by Rockstone to one of debtor’s former businesses. (Bankr.Ct. Op., at 4.) Debtor owned and operated several businesses related to computer consulting for small businesses over the course of his professional career. (T-41-43.) As of the petition date, debtor’s sole source of income came from The Storage Guys, a computer consulting business owned entirely by debtor. (Bankr.Ct. Op., at 4; see Schedule I, ER-1 (Voluntary Petition & Exhibits).)

In his Chapter 7 Bankruptcy Petition, debtor listed that he had $91,000 in real property assets, $114,437.13 in personal property assets, $1,531,703.12 in liabilities to creditors holding secured claims, and $32,861.16 in liabilities to creditors holding unsecured non-priority claims; that his current income was $4,447.24; that his current expenditures were $4,423.09; and that he had no domestic support obligations. According to Schedule I, $1,110 of plaintiffs income came from his girlfriend’s contribution to household expenses. Therefore, plaintiffs monthly income from his business was $3,837.24.

On Schedule B, Bub listed a one hundred percent ownership interest in Country Road 332 LLC, with an “unknown” value. (Schedule B, at 2.) Country Road 32 LLC owns one-third of a condominium in Gainesville, Florida (the “Gainesville Condo”). (See T-48-49.) The other owners are Barbara Anzalone (debtor’s first wife) and Joshua Bub (debtor’s adult son). (Id. at 49.) Debtor’s older daughter and her fiancé live in the condominium and do not pay rent. (Bankr.Ct. Op., at 5; T-113.) On Schedule D, debtor disclosed that he is obligated to Wells Fargo Home Mortgage in the amount of $124,472.40. (Schedule D, at 2.) The obligation is secured by a mortgage on the Gainesville Condo, which debtor valued at $100,000.3 (Id.) On Schedule J, debtor listed a rent or home mortgage payment expense in the amount of $550.00 per month. (Schedule J, at 1.) He also listed an expense in the monthly amount of $135.00 for a maintenance fee. (Id. at 2.) At trial, Bub testified that this was his monthly “contribution toward a mortgage payment on [the] condo.” (T-112.) He stated that he was making the payments, despite not having any ownership interest, in lieu of repaying arrears owed to his ex-wife in connection with unpaid child support. (Id. at 113-14.) Debtor also testified that he stopped making payments around the time he filed the petition because he could no longer afford to make them. (Id. at 120.) Debtor did not amend Schedule J to correct the nature of this expense, and he did not delete it as an expense after he stopped paying. At trial, debtor stated that he listed it because “[fit’s something I had been paying. And that’s what I understood this [Schedule J] to be. It’s my expenses.”4 (Id.)

[690]*690The Bankruptcy Court found that “there is no documentary evidence to support a monthly rental or mortgage expense in this amount [$550].” (Bankr.Ct. Op., at 8.) Bank account records reflect that, for approximately one year prior to the petition date, monthly transfers in the amount of $1100 were made from a TD Bank account in the name of The Storage Guys to Bub’s personal bank account. (Id.; see The Storage Guys Bank Account Statements, ER-6; Bub Bank Account Statements, EB-1.) In addition, each month, an electronic payment in the amount of $1,093.97 was made from Bub’s account to Wells Fargo Home Mortgage. (Bankr.Ct. Op., at 8; see Bub Bank Account Statements.) Neither bank account reflects a monthly payment or debit in the amount of $550 (or $685). (Bankr.Ct. Op., at 8.) The Bankruptcy Court thus concluded that “[t]his documentary evidence contradicts the Debtor’s testimony and supports the conclusion that the Debtor was paying the entire monthly mortgage on the Gaines-ville Condo with funds generated from The Storage Guys for the entire year prior to the Petition Date.”5 (Id. at 8-9.)

On Schedule B, debtor listed his stock interest in The Storage Guys. (Schedule B, at 2.) He indicated that The Storage Guys had “[n]o assets,” and he valued his stock interest at zero. (Id.) At the same time, however, The Storage Guys’ bank account balance was approximately $19,000. (T110.) At trial, debtor testified that he wrote “no assets” in his disclosure because, as of the petition date, The Storage Guys had no “net” assets. (Id.)

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Cite This Page — Counsel Stack

Bluebook (online)
516 B.R. 685, 2014 U.S. Dist. LEXIS 87286, 2014 WL 2882613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bub-v-rockstone-capital-llc-nyed-2014.