Fangio v. Russell (In re Russell)

507 B.R. 786
CourtUnited States Bankruptcy Court, N.D. New York
DecidedMarch 26, 2014
DocketBankruptcy No. 13-30256; Adversary No. 13-50016
StatusPublished
Cited by3 cases

This text of 507 B.R. 786 (Fangio v. Russell (In re Russell)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fangio v. Russell (In re Russell), 507 B.R. 786 (N.Y. 2014).

Opinion

MEMORANDUM-DECISION AND ORDER

MARGARET CANGILOS-RUIZ, Bankruptcy Judge.

In her complaint, Mary Lannon Fangio, Trustee (“Trustee”), objects to the discharge of Alisha A. Russell (“Debtor”) pursuant to 11 U.S.C. §§ 727(a)(2)(A) and (B), (a)(3), (a)(4) and (a)(5),1 and requests judgment in an amount not less than $7,500. Issue was joined upon the filing of Debt- or’s answer in general denial. The court conducted a trial on February 7, 2014. In addition to the evidence adduced at trial, the court takes judicial notice of the filings made in the underlying bankruptcy case. [790]*790For the reasons which follow, the court sustains the Trustee’s objections, denies Debtor a discharge, and awards judgment in the amount of $7,143.75.

Jurisdiction

The court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 1334(b) and §§ 157(b)(2)(E) and (J). This memorandum-decision and order incorporates the court’s findings of fact and conclusions of law as permitted by Fed. R. Bankr.P. 7052.

Background Facts

Debtor filed a voluntary petition on February 22, 2013. At that time, Debtor was represented by Craig C. Humpleby, Esq. The petition and schedules are dated February 12, 2013, the same day that Debtor retained Mr. Humpleby. Exs. A, K. On schedule B, Debtor indicated that she had $100 in cash and $8,000 on deposit with Empower Federal Credit Union (“Empower”) and was owed a tax refund of approximately $2,800 from New York State, all of which she claimed as exempt on schedule C. Debtor scheduled no real property and no non-exempt personal property. Debtor did not list any secured or priority creditors. Schedule F lists ten creditors, whose claims total $16,874.91. Ex. A at 21-30.

In the statement of financial affairs, sworn to on February 12, 2013, Debtor listed Wells Fargo Auto Finance as the only creditor to whom she had made payments in the prior 90 days (Question # 3). She also averred that she had not made any transfers of money or property within the two years immediately prior to filing (Question # 10) and was not holding property on another’s behalf (Question # 14). Ex. A at 36-39.

The first meeting of creditors was held on March 22, 2013 (the “March Meeting”). At the Trustee’s request, Debtor produced bank statements for her accounts at Empower for the 90-day period immediately preceding the filing. Exs. B-E (the “Bank Statements”). Contrary to schedule B, the Bank Statements indicate that Debtor had $8,601.37 on deposit as of the date of the petition.2 Significantly and contrary to the averment in the statement of financial affairs, the Bank Statements reveal that on January 30, 2013, Debtor had transferred $7,143.75 from her Empower savings account to an account that Debtor later identified as belonging to her daughter (the “January Transfer”). The Bank Statements also reveal that sizeable “Mixed Coin” deposits had been made approximately every 2 weeks (the “Mixed Coin Deposits”). Exs. B-E.

At the March Meeting, Debtor testified that she had used the funds from the January Transfer to pay back rent, unpaid utility bills and amounts owed for child care expenses. Ex. F at 4-7. Noting that this testimony contradicted the statement of financial affairs, the Trustee told the Debtor that she would need to account for the funds. Ex. F at 7-8. The Trustee explained that, taken together, the January Transfer and the Debtor’s tax refunds were “more than you’re allowed for a[ cash] exemption by law.” Ex. F at 6. Debtor acknowledged the conflict between her testimony and the disclosures in the statement of financial affairs. Ex. F at 7-8. The Trustee adjourned the meeting for Debtor to account for her use of the funds from the January Transfer. Ex. F at 9. Sometime after the March Meeting, Debt- or turned over several receipts and documents to account for her claimed use of the funds from the January Transfer. Ex. G.

[791]*791The Trustee reconvened the meeting of creditors on May 10, 2013 (the “May Meeting”). There, Debtor testified that the January Transfer was directed into her daughter’s account. Ex. H at 3-4. The funds, which belonged to Debtor, were “from five years of saving up.” Ex. H at 3. As to the several receipts and documents that she had provided the Trustee, Debtor testified that the expenses were paid using her tax refunds. Debtor explained that she used her annual tax refunds, when necessary, to pay debts that accumulated in the later part of the year. Ex. H at 4. The funds from the January Transfer were still in her daughter’s account. Ex. H at 5. Debtor “didn’t realize” that she would need to disclose the transfer and denied trying to hide the January Transfer from the Trustee. Ex. H at 4, 8.

Debtor also testified at the May Meeting that she had permitted a friend, who owned a coin-operated washer and dryer business, to make the Mixed Coin Deposits. The friend, whom Debtor identified as Stacy Allen, did not have a bank account. Debtor would withdraw funds whenever Ms. Allen needed money. Debtor did not maintain an account book on Ms. Allen’s behalf, but stated that Ms. Allen kept records. Debtor indicated the Ms. Allen could provide the Trustee with copies of the records. Ex. H at 5-7.

Near the end of the May Meeting, the Trustee again explained that Debtor was “way over” the allowed cash exemption. The Trustee expressed frustration with the lack of clarity in Debtor’s testimony, particularly given that the testimony contradicted the disclosures in the schedules and statement of financial affairs. Ex. H at 7-9. The Trustee again adjourned the meeting to provide Debtor an opportunity to explain her financial transactions. Ex. H at 9.

Shortly after the May Meeting, Mr. Fix was substituted as Debtor’s counsel. Ex. I.3 By letter dated July 17, 2013, Mr. Fix informed the Trustee that Debtor had provided “rational explanations as to her financial transactions.” Ex. J. The Trustee responded, asking that Mr. Fix provide the explanations and that Debtor turn over the funds from the January Transfer. Ex. J.

The Trustee received no further explanation and no funds were turned over, prompting the filing of the present complaint.

Testimony at Trial

The Debtor was the first witness to testify. She acknowledged that schedule B did not accurately reflect her Empower account balances as of the filing. Debtor admitted that — contrary to the averments in the statement of financial affairs — she had transferred, shortly before filing, $7,143.75 into her daughter’s account, which Debtor stated was used to manage expenses related to her daughter’s care and not as a future savings account. She also admitted holding property on another’s behalf with respect to the Mixed Coin Deposits and that she had failed to disclose payments to her landlord and child care provider made shortly before the filing. Further, Debtor admitted that the transactions evidenced by the receipts and documents submitted to the Trustee were not related to the January Transfer but instead involved payments made with her tax refunds. Despite the Trustee’s requests, Debtor failed to provide satisfactory documentation for the questioned financial transactions.

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Cite This Page — Counsel Stack

Bluebook (online)
507 B.R. 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fangio-v-russell-in-re-russell-nynb-2014.