Davis v. Osborne (In re Osborne)

476 B.R. 284
CourtUnited States Bankruptcy Court, D. Kansas
DecidedJuly 27, 2012
DocketBankruptcy No. 08-12350; Adversary No. 10-5033
StatusPublished
Cited by18 cases

This text of 476 B.R. 284 (Davis v. Osborne (In re Osborne)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Osborne (In re Osborne), 476 B.R. 284 (Kan. 2012).

Opinion

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART THE TRUSTEE’S SECOND AMENDED COMPLAINT FOR REVOCATION OF DISCHARGE

DALE L. SOMERS, Bankruptcy Judge.

Trial on the Trustee’s Second Amended Complaint for Revocation of Discharge was held on May 29, 2012.1 The Plaintiff, Carl B. Davis, Chapter 7 Trustee (Trustee), appeared by Elizabeth A. Carson of Bruce, Bruce & Lehman, L.L.C. The Defendant, Debtor Donald P. Osborne (Debt- or), appeared pro se. There were no other appearances. Having carefully considered the testimony, the exhibits, and the statements on behalf of the parties, the Court finds that Debtor’s discharge should be revoked under 11 U.S.C. § 727(d)(1),2 based upon commissions of acts specified in § 727(a)(4)(A).

BACKGROUND FACTS.

This Chapter 7 bankruptcy was filed by Debtor Donald P. Osborne pro se on September 17, 2008. Debtor received a discharge on April 20, 2009. The Trustee’s Second Amended Complaint3 is in three counts. In Count I, the Trustee seeks to have Debtor’s discharge revoked under § 727(d) based upon his failure to appear for a Rule 2004 examination on November 23, 2009; his failure to appear at hearings on January 19, 2010, and February 1, 2010, to show cause why he should not be held in contempt for failing to appear for the Rule 2004 examination; and his failure to pay a sanction of $500 imposed by the Court. Count II prays for revocation of discharge under § 727(d)(1) based upon Debtor’s failure to list real property interests in his Schedules, in violation of §§ 727(a)(4) and 727(a)(2). Count III prays for revocation of discharge under § 727(d)(1) for Debtor’s failure to identify in his Schedules all assets and all creditors; his sale of property of the estate and failure to turn over the proceeds; his use of various persons and entities as his alter ego to buy, sell, and hold property; and his engaging in substantial business activities not disclosed in his Schedules or to the Trustee, in violation of §§ 727(a)(4) and 727(a)(2).

FINDINGS OF FACT.

Debtor is a single person who was born in 1943. For most of his adult life, Debtor [288]*288has been engaged in the businesses of buying and selling real estate, buying and selling tractors and trailers, and over-the-road trucking. Generally, these businesses were conducted under the trade name of Don Osborne Enterprises. No formal business records were kept, and apparently no effort was made to separate his business and personal affairs. Although Debtor has filed tax returns, he has not paid any income taxes since 1970.

Debtor and Margie C. Osborne were married in 1969. For years, Margie Osborne and Lorraine O. Dawson, Debtor’s mother, engaged in the business of property leasing, under the name Hays Partners. No formal business records of Hays Partners were introduced at trial. Although Debtor testified that he was not an owner but only served as a financial consultant or advisor to Hays Partners, the Court finds that the financial affairs of Debtor, Margie Osborne, and Lorraine Dawson were not cleanly separated. For example, Debtor testified that a bank account in his name at Golden Belt Bank received deposits of funds from Hays Partners and made payments to or on behalf of Debtor. In addition, a federal income tax Form 1040C for Hays Partners, listing Debtor as the proprietor of Hays Partners, was filed with Debtor’s 2006 federal tax return. Nevertheless, there is not sufficient evidence in this record for the Court to hold that property of Hays Partners should have been included in Debtor’s schedules.

In 2004, two events occurred which prompted Debtor to begin to rearrange his financial affairs. First, the IRS questioned Debtor’s tax returns for 2001 and 2002. Second, Debtor, who was “self insured” for vehicle liability purposes, was involved in a motor vehicle accident which resulted in personal injury to members of the Albert family, who subsequently sued him for damages. As to the tax liability, Debtor sought and obtained innocent spouse protection for his wife. Also, soon after the accident, Margie Osborne petitioned for a divorce, which was granted in December 2004. The parties agreed to a separation agreement under which Debtor retained his business, Don Osborne Enterprises, valued in the agreement at $785,000, and Margie retained Colorado real property valued at $500,000 and retirement accounts valued at $223,140.81. All debts since the date of separation, which was stated in the divorce documents to be September 1, 1994, were held to be Debtor’s separate obligations. Debtor’s testimony as to the basis for the valuation of his business was neither consistent nor credible.4 According to Debtor, after the divorce, the operation of Debtor’s, his wife’s, and his mother’s businesses did not change, except Debtor became the sole owner of Don Osborne Enterprises and he lost his one-half interest in the Colorado real property, which he quitclaim deeded to Margie Osborne.

Trial on the personal injury lawsuit filed by the Alberts against Debtor was held on September 2, 2008. On September 17, 2008, Debtor filed his voluntary petition under Chapter 7. On October 21, 2008, a journal entry of judgment for $1,176,386.04 was entered in favor of the plaintiffs and against Debtor and Don Osborne Enterprises, which were found to be one and the same. Intervenor Columbia Insurance Company was granted a claim of subrogation in the amount of $137,600, with a right of indemnification from Debtor. Debtor [289]*289considers the personal injury litigation to be fraudulent.

Debtor’s Statement of Financial Affairs, signed under penalty of perjury, contains answers to questions which are neither accurate nor complete. In response to Question 1, Debtor reported he had no income from employment or the operation of a business from the beginning of the calendar year to the date of filing, and no such income during the two years immediately preceding the calendar year in which the petition was filed. Yet Debtor testified that he engaged in his businesses throughout his adult life, except for the period from the date of filing to the date of discharge, and he admitted having had income in 2006 and 2007 from the buying and selling of trucks and from hauling freight. He stated that he did not include the income for the year in which the petition was filed because he had not done his taxes before filing and that he failed to state his gross income for the two prior years because it was not that important.

Debtor reported nothing in response to Question 10, “Other transfers,” which requests information about non-ordinary-course transfers made within two years preceding the commencement of the case. Yet Debtor testified that in 2006, Don Osborne Enterprises, which had been valued at $786,000 in December 2004 for the divorce case, liquidated some of its inventory and rolling stock. His 2006 tax return reports gross receipts or sales of $45,431, and an inventory value at the end of the year of $31,300. The only personal property Debtor reported on Schedule A was $600 in cash, $50 worth of clothing, and four vehicles, worth an aggregate of $3,500. The inventory remaining at the end of 2006 was either liquidated before filing and not reported in response to Question 10, or held by Debtor on the date of filing and not included in his Schedules.

In response to Question 11, Debtor identified no closed financial accounts.

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Cite This Page — Counsel Stack

Bluebook (online)
476 B.R. 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-osborne-in-re-osborne-ksb-2012.