Crocker v. Stiff (In re Stiff)

519 B.R. 665
United States Bankruptcy Court, E.D. Kentucky·Decided October 3, 2014·No. Bankruptcy No. 12-53085; Adversary No. 13-5030·Published·Cited by 1 cases

Opinion

MEMORANDUM OPINION

GREGORY R. SCHAAF, Bankruptcy Judge.

In this action, the United States Trustee seeks denial of discharge to the Debtor, a bloodstock agent, based on 11 U.S.C. §§ 727(a)(3) and 727(a)(5). The U.S. Trustee alleges the Debtor failed to keep records that would help assess his financial condition and explain the loss of certain assets. The U.S. Trustee raises questions with the disposition of two loans, cash withdrawals over a seven-year period, funds which the Debtor solicited from investors to purchase horses and interests in horses, and shares in a syndicated stallion.

The purpose of § 727(a)(3) and § 727(a)(5) is to “remove[] the risk to creditors of ‘the withholding or concealment of assets by the bankrupt.’ ” In re Caneva, 550 F.3d 755, 761 (9th Cir.2008) (quoting Burchett v. Myers, 202 F.2d 920, 926 (9th Cir.1953)). The testimony suggests the Debtor may have grossly mismanaged his investors’ money and it is clear his recordkeeping was poor. Still, it seems clear where the money in this case went: the Debtor spent it. Thus, a denial of discharge grounded on provisions enacted to check the concealment of assets from creditors is not warranted.

I. FACTS AND PROCEDURAL HISTORY.

The facts, procedural history and issues for trial were set up in the Memorandum Opinion which denied the Debtor’s motion for summary judgment. [Doc. 29; published at Crocker v. Stiff (In re Stiff), 512 B.R. 893 (Bankr.E.D.Ky.2014) ]. The Memorandum Opinion describes the procedural history as follows:

Debtor filed a Chapter 7 petition for bankruptcy on December 7, 2012. Debt- or listed nine judgment debts on his petition. On March 15, 2013, several of Debtor’s scheduled judgment creditors filed a nondischargeability action, generally alleging that their judgments against Debtor were for fraud and hence non-dischargeable. On June 7, 2013, that adversary proceeding was voluntarily dismissed. On August 28, 2013, the U.S. Trustee filed this adversary proceeding, objecting to Debtor’s discharge under 11 U.S.C. §§ 727(a)(2)(A) (concealment of assets with intent to hinder or delay creditors), 727(a)(3) (failure to maintain records), and 727(a)(5) (failure to explain the loss of assets). The U.S. Trustee subsequently dismissed the § 727(a)(2)(A) count, explaining at the hearing on Debtor’s motion for summary judgment that he dismissed the count because he was unable to find evidence that Debtor concealed any assets within one year prior to the commencement of Debtor’s case, as § 727(a)(2)(A) requires.

Stiff, 512 B.R. at 895.

The Debtor’s summary judgment request essentially argued for a two-year limit on the look back period for a non-dischargeability action under either § 727(a)(3) or § 727(a)(5). The Memorandum Opinion concluded there was no outer limit; the time period merely affected the reasonableness of the failure to keep records or the need to explain a loss of assets. Id. at 898-901. With respect to lost assets, a normal two-year look-back period may be extended with respect to-substantial assets relative to a debtor’s liabilities. Id. at 900-01. The Memorandum Opinion [668]*668further explained that the length of time a debtor is required to keep records will depend on the nature of the business in which the debtor is engaged, the size of the transaction, and other facts and circumstances of the case. Id. at 898-99.

The Memorandum Opinion further recognized a burden-shifting framework that places the initial obligation to show missing records or a loss of assets on the U.S. Trustee. Once the U.S. Trustee proves that a debtor failed to keep records of the kind required by § 727(a)(3), the burden shifts to the debtor to explain why his failure to keep the records was reasonable. The U.S. Trustee also has the initial burden to identify certain assets previously owned by the debtor that he no longer possesses. Once that occurs, the debtor must explain the loss of those assets.

The Memorandum Opinion recognized four asset groups identified by the U.S. Trustee that would require additional proof:

(i) the U.S. Trastee argues that Debtor has failed to explain the loss of the $194,000 cash withdrawn from two bank accounts from 2002 to 2009;

(ii) the funds owed on a $55,000 note payable in 2004 and a $35,000 note payable in 2006;

(iii) funds solicited to invest in stallion seasons and broodmare prospects in 2004 and 2005, and

(iv) interests in Equality, a stud horse, transferred between 2003 and 2009.

Crocker v. Stiff, 512 B.R. at 896 (organized in the order of presentation herein).

The Memorandum Opinion determined that the Debtor had not established as a matter of law that his failure to keep records regarding these items was reasonable. Id. at 899. It reserved on whether the U.S. Trustee had met its burden to prove that Debtor failed to keep § 727(a)(3) records. Id. at 897 n. 2. On the § 727(a)(5) count, the Memorandum Opinion held that the U.S. Trustee had shown that some explanation was required as to the cash and promissory notes, items (i) and (ii), but it was not yet clear an explanation was required for any loss related to the investments in stallion seasons and broodmares or the shares in Equality, items (iii) and (iv). Id. at 901. Further proof of the materiality of these assets, given their remoteness from the bankruptcy, would be required at trial. Id.

II. ANALYSIS.

A. Item (i): Cash Withdrawals.

The U.S. Trustee identified $194,000 that was taken from the Debtor’s personal account and the business account of Bay Bloodstock between 2002 and the first half of 2009. The Debtor testified that the U.S. Trustee’s calculation does not give credit for $74,000 that was redeposited into the Bay Bloodstock account. The Debtor also asserts the U.S. Trustee’s calculation does not account for a $33,000 check that was initially rejected for lack of endorsement, but later corrected. If true, the Debtor must only account for cash totaling $87,000.

1. The Debtor’s Failure to Keep Records for the Cash Withdrawals Does Not Justify a Denial of Discharge under § 727(a)(3).

The Debtor’s failure to keep detailed records explaining his use of $28,000 a year in cash (or by the Debtor’s calculation, about $12,500 a year) for a period beginning ten years, and ending over three years, before the petition date is not unreasonable. As discussed in more detail hereafter, the Debtor credibly testified that he spent the cash he withdrew on personal living expenses, including food and living accommodations, vacations, jew[669]*669elry, gambling and certain aspects of his business. Even the U.S. Trustee’s expert witness on accounting issues, Todd Wright, testified that individuals would not normally keep records of ordinary living expenses going back more than two or three years.

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Crocker v. Stiff (In re Stiff), 519 B.R. 665 (Ky. 2014).

519 B.R. 665 (Crocker v. Stiff (In re Stiff)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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