Dilbay v. Demir (In re Demir)

500 B.R. 913
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedNovember 7, 2013
DocketBankruptcy No. 11-bk-52053; Adversary No. 12-ap-661
StatusPublished
Cited by6 cases

This text of 500 B.R. 913 (Dilbay v. Demir (In re Demir)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dilbay v. Demir (In re Demir), 500 B.R. 913 (Ill. 2013).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER TRIAL

JACK B. SCHMETTERER, Bankruptcy Judge.

Debtor and Adversary Defendant, Yasar Demir, filed for bankruptcy relief under chapter 7. Creditor and Adversary Plaintiff, Burak Dilbay, objected to the Debtor’s discharge under §§ 727(a)(2)(A) (Count I), 727(a)(3) (Count II), and 727(a)(4)(A) (Count III), alleging that Debtor transferred or concealed property of the debtor when he removed certain restaurant equipment from Istanbul Restaurant, that Debt- or failed to keep adequate records from which the debtor’s business transactions might be ascertained, and that Debtor made a false oath by omitting his ownership of property and income from his bankruptcy schedules.

Trial was held over three afternoons on September 16, 17, and 19 of 2013. Following trial, the parties were invited to file proposed findings of fact and conclusions of law, and present arguments in writing. For the following reasons, Debtor’s discharge is denied under § 727(a)(4)(A) (Count III) for making false oaths, but not under the other counts of this Adversary Proceeding.

Findings of Fact

Debtor is a chef specializing in Turkish style foods and a sometime restaurant owner. In 2009, Debtor and Plaintiff orally agreed to go into business operating a Turkish style restaurant. On May 18, 2009, Debtor signed a lease for restaurant space at 3613 North Broadway Street in Chicago. On May 19, 2009, DHD Group, Inc. (“DHD Group”) was incorporated. Some time after that, they opened “Istanbul Restaurant” at the 3613 North Broadway location, with each party contributing his time and money to get the restaurant open.

On February 15, 2010, the parties entered into a stock sales agreement wherein Plaintiff conveyed 100% of the shares of DHD Group to Debtor for $22,000, to be paid in $2,000 installments per month over the following year. The “Certificate of Stock Sales Agreement” purported to transfer all shares of DHD group. Further, the Agreement recited that “The assets as listed on exhibit A owned by the Seller and/or the Corporation for the operation of the Business and being acquired by The buyer hereunder is in its possession. All assets to be taken in working condition,” but there was no exhibit A attached to the Agreement.

Later, Debtor incorporated AYD Group, Inc. (“AYD Group”), which continued doing business under the name of Istanbul Restaurant at the same location. Over the next several months, the relationship between the parties soured. Around July, 2010, Plaintiff filed a lawsuit against Debt- or in state court for breach of contract. On August 4, 2010, Plaintiff filed a UCC financing statement reciting a purported security interest in the equipment of Istanbul Restaurant, listing individual pieces of equipment. After a jury trial in Novem[917]*917ber 2011, Dilbay obtained a dollar judgment in his favor for $22,000.

On February 2, 2011, while the state court ease was pending, Plaintiff observed Debtor moving equipment, including a stove, coolers, a television, a pizza oven, and a “point of sale” system (consisting of cash registers and computers for processing credit card transactions) out of Istanbul Restaurant onto a U-Haul truck. The equipment was moved to an empty restaurant storefront in Bensenville, Illinois, which would eventually open as “Kebab House.” There is a dispute as to who owned the equipment when Debtor removed it from Istanbul Restaurant. Plaintiff testified, “I’m calling it mine because I purchased those with the DHD Group’s money. I sold the business, including the equipment, but none of it was done the way it was supposed to.” Further, Plaintiff asserted a lien against the restaurant equipment, as evidenced by the UCC financing statement filed by him. Plaintiff also testified that creditors continue to pursue him under a personal guarantee that he signed with regard to the “point of sale” system used in Istanbul Restaurant, despite his protestations that, in fact, Debtor has possession of the system.

Fatma Akturk, Plaintiffs wife, testified that before Debtor removed the restaurant equipment from Istanbul Restaurant, it was operating normally as a restaurant. When the equipment was moved, the Istanbul Restaurant storefront looked empty, with most of the furniture left inside the premises (belonging to the landlord), having been piled in the center of the restaurant. The TV, point of sale system, a stove, a fryer, and a pizza oven were moved on February 20, 2011 in a U-Haul truck or Demir’s car. The removal of that equipment ended business operations of Istanbul Restaurant, and could not be considered within the ordinary course of a restaurant business.

Some of the restaurant equipment that was removed was eventually sold by Debt- or to Ahmet Rushid, the owner of Kebab House in Bensenville. Some other equipment was said by Debtor to have been abandoned as worthless. Debtor testified that he gave the point of sale system to Rushid as a gift in appreciation for financial assistance that Rushid gave to Debtor, although his attorney argued after trial that the transfer was in consideration for that financial assistance. After disposing of the equipment he had removed from Istanbul Restaurant, Debtor began working at Kebab House for $450 per week. The exact start date is not clear, but Debt- or testified that he started working at Kebab House about two years before trial, or around September 2011.' In his answer to Interrogatory No. 7 of the First Set of Interrogatories, (“Identify every source of income you have had in the last six (6) years, including, but not limited to, any cash you took from your restaurants”), Debtor’s answer stated that, “Since 2011, [Debtor] has been a W-2 employee.”

Around February or March, 2012, the owner of Kebab House (Ahmet Rushid) died, and his heirs sold the restaurant to Debtor’s wife for monthly installment payments. There was no testimony as to the purchase price, and no sale document was offered into evidence.

One month before trial in this Adversary Proceeding, Plaintiff and Fatma Akturk visited Debtor’s new restaurant in Bensen-ville, Kebab House. Plaintiff and Akturk both testified that they went inside that restaurant but did not stay because they knew they were not welcome. Plaintiff further testified that he saw the same 46-inch TV and point of sale system at the restaurant, basing his conclusion that they were the same on his personal familiarity [918]*918with those items when they were at Istanbul Restaurant.

Debtor filed his bankruptcy petition for relief under chapter 7 on December 30, 2011.

Both parties offered into evidence bank statements, including check images, of DHD group for the period from July 2009 to January 2010.

Additional findings of fact appear in the following Conclusions of Law.

Conclusions of Law

Jurisdiction

Jurisdiction lies over this objection to proof of claim under 28 U.S.C. § 1334 and is referred here by Internal Procedure 15(a) of the District Court for the Northern District of Illinois. This matter is an objection to discharge, and is therefore a core proceeding under 28 U.S.C. § 157(b)(2)(I). This case only concerns issues relating to dischargeability of the debtor. Neither party has requested adjudication of any underlying debts.

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Cite This Page — Counsel Stack

Bluebook (online)
500 B.R. 913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dilbay-v-demir-in-re-demir-ilnb-2013.