Doeling v. Peluso (In re Peluso)

592 B.R. 684
CourtUnited States Bankruptcy Court, D. North Dakota
DecidedOctober 18, 2018
DocketBankruptcy No. 17-30413; Adversary No. 17-7023
StatusPublished

This text of 592 B.R. 684 (Doeling v. Peluso (In re Peluso)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. North Dakota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doeling v. Peluso (In re Peluso), 592 B.R. 684 (N.D. 2018).

Opinion

SHON HASTINGS, JUDGE

I. INTRODUCTION

Gene W. Doeling, Chapter 7 Trustee, filed a Complaint seeking a denial of Debtor/Defendant Michael J. Peluso's discharge *687under 11 U.S.C. § 727(a)(2) and (4). The Trustee alleges that Debtor: (1) transferred funds to his mother prepetition and postpetition with the intent to hinder, delay or defraud creditors; and (2) knowingly and fraudulently made false oaths or accounts in connection with this case by failing to disclose the transfers to his mother and assets he owned on the date of petition. Doc. 1.

Debtor filed an Answer to the Complaint, asserting that: (1) he did not transfer assets to his mother but simply gave her authority to disperse Debtor's funds as he directed; and (2) any omissions were inadvertent, unintentional and based on "nominal oversights." Doc. 4 at 3.

For the following reasons, the Court finds in favor of the Trustee and orders that Debtor is denied a discharge.

II. FACTS

A. Debtor's Failed Business Venture

In 2011, Debtor purchased and became the sole owner of RJKL Corporation. RJKL operated Zachmeier Manufacturing, which constructed boat docks and ice fishing houses. Debtor purchased RJKL from Russell and Jennifer Smith, who previously purchased it from Leo Zachmeier and Tony Wald. Debtor was not represented by counsel in connection with his purchase of RJKL.

After purchasing RJKL, Debtor discovered many challenging issues with the business. Debtor claimed the previous owners left a "lot of loose ends" as well as "ratty books so it was hard to get a good grip on what was actually there and what wasn't." According to Debtor, he "assumed liabilities of hundreds of thousands of dollars" under the purchase agreement with the Smiths. He also assumed responsibility for building $100,000 in docks to fulfill prior commitments made by the Smiths.

Adding to these difficulties, the Missouri River flooded Bismarck in 2011 which affected both the business and Debtor personally.

Debtor addressed these challenges by seeking professional advice from accountants and bankers. He discontinued the dock business and focused on manufacturing ice fishing houses. He reduced the number of employees to streamline the business and minimize overhead, and he performed "lots of work on his own dime." Despite his efforts, Debtor "never could gain traction." The business was never profitable while Debtor owned it. Ultimately, Debtor could not save the business. Debtor did not operate the business in the year and a half prior to July 5, 2017, the date he petitioned for bankruptcy relief.

Attorney LaRoy Baird, who represented Debtor in his bankruptcy case, testified at the trial in this case. Attorney Baird characterized Debtor's purchase of the business as a "terrible decision." The business owed large debts when Debtor purchased it, and Debtor assumed this debt. Debtor then personally guaranteed additional debt trying to keep the business operating.

At some point, Debtor could no longer make the payments for his purchase of the business. Zachmeier and Wald sued the Smiths, who commenced a third-party action against Debtor. Ex. 6. On June 13, 2017, Zachmeier and Wald obtained an amended judgment in state court against the Smiths. Ex. 6. The court found that Debtor "contractually agreed to indemnify and hold Smiths harmless with respect to any financial obligations of RJKL, including the Promissory Note" signed by the Smiths when they purchased the business from Zachmeier and Wald. Ex. 6. Accordingly, the state court found Debtor liable to the Smiths for $232,147.65, the total sum of the judgment awarded to Zachmeier and Wald, plus interest. Id. The court *688also found Debtor liable for the Smiths' attorney's fees and costs totaling $48,205.28. Id. To satisfy the judgment, the Smiths pursued a wage garnishment against Debtor.

B. The Months Before Bankruptcy: The Edward Jones Account and Fishing Guide and Tournament Earnings

After he stopped operating his dock and fish house manufacturing business, Debtor held various jobs. In the summer of 2017, Debtor competed in professional fishing tournaments and worked as a fishing guide on Devils Lake for Perch Eyes Outfitters in addition to his regular employment as a substitute teacher and instructional aid for handicapped students. He did not have a set schedule as a fishing guide. Instead, Jason Feldner, the owner of Perch Eyes, contacted Debtor as needed. The fishing clients paid Perch Eyes, and Feldner paid Debtor. Feldner left checks for Debtor and the other guides in the Perch Eyes shop, and the guides "fetched them" at their convenience.

In the summer of 2017, Debtor owned two Edward Jones accounts opened in 2004 through his previous employment. Only one of the accounts was a qualified retirement account. Prior to June 2017, he did not withdraw any funds from the accounts.

On June 2, 2017, Debtor withdrew the full balance of funds in the account that did not qualify as a retirement account.1 Ex. 1 at T-3. Edward Jones mailed Debtor a check in the sum $15,258.24 which Debtor received a few days later. Although Debtor held a business account at American Bank Center, he did not deposit the proceeds into this account, add his mother's name to the American Bank Center account or open a new account under his name. Instead, he endorsed the check, gave it to his mother and asked her to pay his bills with the proceeds. Debtor also gave his mother an $800.00 check he had recently earned either as a fishing guide or received as a prize for winning a fishing tournament and asked her to pay bills with this money as well. Debtor gave his mother a handwritten list of bills to pay, including his mortgage, taxes, child support and Attorney Baird's fees. Ex. 106.

Debtor claims he asked his mother to pay his bills because he was out of town during most of this period either competing in fishing tournaments or providing guide services. According to his mother, Debtor was trying to make enough money to pay his mortgage and child support obligations. Debtor, who was newly divorced at the time, depended on his mother to ensure his bills were paid. Debtor wanted to pay his bills and knew his mother-whom Debtor characterized as "like a secretary" for him-would do it for him.

Debtor's mother opened a checking account in her name only at Kirkwood Bank & Trust on June 21, 2017. Ex. 9. She explained that she opened the account because she did not want Debtor's money in her personal account. She felt she could be "accountable" for the money if she used a separate account. She deposited the two checks in the sums of $800.00 and $15,258.24 on June 21, 2017, and another check for $800.00 from guide services on July 6, 2017. Ex. 9 at T-46. According to a handwritten ledger she kept, Debtor's mother wrote 14 checks on June 26, 2017, leaving $4,696.84 in the account.

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Cite This Page — Counsel Stack

Bluebook (online)
592 B.R. 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doeling-v-peluso-in-re-peluso-ndb-2018.