Crocker v. Abad (In re Abad)

485 B.R. 369, 2013 WL 308898, 2013 Bankr. LEXIS 322
CourtUnited States Bankruptcy Court, W.D. Kentucky
DecidedJanuary 25, 2013
DocketBankruptcy No. 12-3028; Adversary No. 12-3037
StatusPublished

This text of 485 B.R. 369 (Crocker v. Abad (In re Abad)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crocker v. Abad (In re Abad), 485 B.R. 369, 2013 WL 308898, 2013 Bankr. LEXIS 322 (Ky. 2013).

Opinion

MEMORANDUM-OPINION

THOMAS H. FULTON, Bankruptcy Judge.

THIS ADVERSARY PROCEEDING is before the Court after the conclusion of a trial on the merits of the cause of action brought by the U.S. Trustee’s Office (“Plaintiff’) against Aldo Abad (“Defendant”) under 11 U.S.C. §§ 727(a)(2)(B) and 727(a)(4)(A). For the reasons set forth below, the Court determines that Abad is not entitled to a discharge under 11 U.S.C. § 727. By virtue of 28 U.S.C. § 157(b)(2)(I), this is a core proceeding. The following constitutes the Court’s Findings of Fact and Conclusions of Law pursuant to Federal Rule of Bankruptcy Procedure 7052.

FINDINGS OF FACT

It is an unfortunate fact of life that folks do not always tell the truth and that, indeed, some persons rarely tell the truth. And, while this Court finds that in practice the vast majority of debtors are “honest but unfortunate,” it occasionally comes across a dishonest and calculating debtor. This is one of those cases. On January 24, 2012, Abad personally used TurboTax tax preparation software to file his federal and tax returns. Abad’s tax return entitled him to a federal tax refund of $27,469.

The next day, January 25, 2012, Abad’s attorney Scott Wantland (“Wantland”) filed a chapter 7 bankruptcy petition on Abad’s behalf. In Schedule B of his bankruptcy petition Abad listed his personal property, including an “anticipated” tax refund of $4,500. (PL’s Ex. 3, at Schedule B.) Abad did not at any time attempt to amend his schedules.

On February 8, 2012, Abad received a net federal tax refund of $26,488 (the original $27,469 less a child support intercept of $981), which was deposited into a checking account that Abad held at Chase Bank (the “Tax Refund”). Abad then transferred portions of the Tax Refund to a second checking account and a savings account, also at Chase Bank.1 Abad later testified that he used a portion of the Tax Refund to repay his ex-wife’s credit card debt and a portion to pay for daily living expenses. Abad also testified that he did not use any of the Tax Refund to pay creditors listed on his bankruptcy petition.

On February 28, 2012, Abad, accompanied by Wantland, attended his 341 meeting of creditors. At the 341 meeting, Michael Wheatley (‘Wheatley”), chapter 7 panel trustee, and Gary Grimes, of the United States Trustee’s Office, interviewed Abad regarding his bankruptcy case. Wheatley asked Abad whether there were any errors or omissions in Abad’s bankruptcy petition. Abad answered “no.” (PL’s Ex. 4, at 4.) Wheatley then asked Abad about his taxes, as follows:

Wheatley: “Have you filed your 2011 taxes yet?”
Abad: “No.”

[371]*371(Id., at 5.) Later in the 341 meeting of creditors, Grimes and Abad had the following exchange:

Grimes: “And in 2011, you made a hundred and ninety-seven thousand; [sic] is that correct?”
Abad: “I have it here, but I’m going to have to pay taxes, so that’s why I haven’t filed.”

(Id., at 11.) Abad did not mention the Tax Refund when Wheatley questioned him regarding his income:

Wheatley: “And [unemployment compensation] is your only source of income?”
Abad: “Yes.”

(Id., at 8.) Wheatley then noted that Abad’s unemployment compensation income did not meet Abad’s stated monthly expenses:

Wheatley: “How you making up the difference?”
Abad: “I’ve had a little bit of savings and I borrow money from my sister for child support.”

(Id., at 9.)

Thus, during the 341 meeting, Abad twice affirmatively stated that he had not filed his tax returns and failed to disclose that he had recently received a substantial federal tax refund when questioned about his income and ability to pay his expenses.

Apparently, the U.S. Trustee’s Office had heightened concerns regarding Abad’s case, because on March 28, 2012, the U.S. Trustee’s Office filed a motion for a 2004 examination. Wfiiile not uncommon, it is certainly not typical for the U.S. Trustee to pursue a 2004 examination in a chapter 7 case. On March 30, 2012, the Court granted the U.S. Trustee’s motion and ordered Abad to submit to a 2004 examination.

On April 20, 2012, Abad, again accompanied by Wantland, submitted himself to the Rule 2004 examination. At the examination, assistant U.S. Trustee Joseph Golden (“Golden”) and Grimes — now armed with some of Abad’s bank account statements — asked Abad about certain large deposits into his bank account. Abad replied that he had received “more back” in tax refunds than the $4,500 he had anticipated on his bankruptcy petition and that he in fact received a tax refund that “was like $26,000.” (Def.’s Ex. 3, at 39.) Later during the 2004 examination, Abad confirmed that he had received the Tax Refund on February 8, 2012. When Golden pointed out that Abad had given different testimony at his 341 meeting, where he denied having filed a tax return, Abad replied that he could not explain his testimony at the 341 meeting and that it was “wrong.” (Id. at 63.) Before leaving the 2004 examination, Abad and Wantland agreed to provide additional documentation to the U.S. Trustee’s Office, including Abad’s 2011 federal tax return. Abad also signed a Form 4506T, authorizing the U.S. Trustee’s Office to obtain his tax records from the Internal Revenue Service (“I.R.S.”).

On or around April 27, 2012, Wantland appeared at the U.S. Trustee’s Office with a document that was purported to be Abad’s tax return. This return or draft return was inaccurate; it did not entitle Abad to a tax refund, but instead showed a tax liability of over $6,000. The U.S. Trustee’s Office subsequently received documentation from the I.R.S., and confirmed that Abad had in fact received a tax refund of $26,488.

The U.S. Trustee’s Office initiated an adversary proceeding against Abad, objecting to Abad’s chapter 7 discharge under 11 U.S.C. §§ 727(a)(2)(B) and 727(a)(4)(A). The U.S. Trustee’s Office al[372]*372leged that Abad intentionally misled panel trustee Wheatley and the U.S. Trustee’s Office about the Tax Refund in order to defraud creditors.

The U.S. Trustee’s Office deposed Abad — now accompanied by new counsel Marque Carey — on October 15, 2012. At the deposition, assistant U.S. Trustee Scott Goldberg (“Goldberg”) pressed Abad regarding the way Abad had presented his tax information on the bankruptcy petition and at the 341 meeting.

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Bluebook (online)
485 B.R. 369, 2013 WL 308898, 2013 Bankr. LEXIS 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crocker-v-abad-in-re-abad-kywb-2013.