Farley v. Kempff

538 B.R. 431, 2015 U.S. Dist. LEXIS 116616, 2015 WL 5173966
CourtDistrict Court, N.D. Illinois
DecidedSeptember 1, 2015
DocketNo. 14 C 9810
StatusPublished

This text of 538 B.R. 431 (Farley v. Kempff) is published on Counsel Stack Legal Research, covering District 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
Farley v. Kempff, 538 B.R. 431, 2015 U.S. Dist. LEXIS 116616, 2015 WL 5173966 (N.D. Ill. 2015).

Opinion

Memorandum Opinion and Order

Thomas M. Durkin, United States District Judge

Plaintiff-appellant Brian Farley has appealed the bankruptcy court’s judgment in favor of defendant-appellee Margaret Kempff (“Kempff,” or “Margaret”) on Farley’s adversary complaint challenging Kempffs Chapter 7 discharge under 11 U.S.C. § 727(a)(2) and (a)(4). Farley argues that thé bankruptcy court erred in finding that Kempff did not intentionally or recklessly (1) transfer property while her Chapter 7 petition was pending without the bankruptcy court’s permission; and (2) file materially false bankruptcy schedules. For the following reasons, the Court affirms the bankruptcy court’s judgment.1

Background 2

1. Kempffs Alleged Debt to Farley

Margaret’s ex-husband, Bart Kempff (“Bart”), stole more than $1 million from the company where he worked as an in-house attorney. R. 18-1 at 4. In an attempt to replenish the money that he had stolen, Bart obtained a $400,000 loan from Farley, ostensibly to acquire real estate that Bart intended to develop. Id. at 45. As security for the loan, Bart promised to give Farley a security interest in the investment property and a second mortgage on the home that Bart shared with Margaret. Id. at 5. After Bart signed a note and mortgage naming Bart and Margaret as promisors/mortgagors, Farely gave Bart a check for $400,000, which Bart then transferred to his employer’s accounts in $100,000 increments over the next several days. Id. at 6. Bart told Farley that Margaret was aware that she needed to sign the note and the mortgage, and promised Farley that he would obtain her signature. Id. In fact, he had not told Margaret about those documents. Id.

Before Bart returned fully-executed copies of the documents to Farley, he and Margaret obtained a bank loan secured by a second mortgage on their home. Id. Two days after that loan closed, Bart forged Margaret’s signature on the note and mortgage and returned the documents to Farley. Id. at 8-9. Farley then recorded the mortgage, which at that point was third in order of priority. Id. at 11.

[435]*435The first mortgagee later filed a foreclosure complaint against the Kempffs, naming the second mortgagee and Farley as additional defendants. Id. at 12. Farley filed cross-claims against Margaret and Bart for fraud and breach of contract, obtaining an $840,000 judgment against Bart. Id. The state court stayed Farley’s cross-claims against Margaret after she filed her bankruptcy petition in March 2012. Id.

After Farley conducted Rule 2004 examinations of Kempff and her parents, he filed an adversary complaint against Margaret challenging her discharge under 11 U.S.C. §§ 528 and 727. Id.; see also Fed. R. Bankr.P.2004(a) (authorizing the bankruptcy court to order the examination of a party “[o]n motion of any party in interest”). After a three-day bench trial, the bankruptcy court read into the record extensive findings of fact and conclusions of law, ruling in Margaret’s favor on all of Farley’s claims. See R. 18—1.3

II. Alleged False Statements and Material Omissions In Kempffs Bankruptcy Schedules

A. 11 U.S.C. § 727(a)(4)(A)

Farley claims that Margaret violated 11 U.S.C. § 727(a)(4)(A), which bars discharge to debtors who knowingly and fraudulently make a “false oath or account” “in or in connection with” the bankruptcy case. In support of this claim, Farley cites several inaccuracies in Margaret’s original and amended bankruptcy schedules.

1. The Kempffs’ Judgment of Marriage Dissolution & Marital Settlement Agreement

In Margaret’s original Schedule B (listing her personal property), she checked' “None” beside the space reserved for “[ajl-imony, maintenance, support, and property settlements to which the debtor is or may be entitled. Give particulars.” R. 20-4 at 15. She again checked “None” beside this category in her amended Schedule B, filed January 10, 2013. R. 21-1 at 3. She did, however, disclose “[cjlaims against ex-husband Bart Kempff, pursuant to Judgment of Marriage Dissolution” in the space reserved for “[ojther contingent and unliqui-dated claims of every nature.... ” Id. She estimated that the value of those claims was' “0.00.” Id. The amount of Bart’s obligation to Margaret, which came to light at trial, was more than $300,000. R. 18-1 at 49. The parties’ Marital Settlement Agreement, attached to the Judgment of Marriage Dissolution, also obligated Bart to indemnify Margaret for certain obligations, including debts to her parents and to Farley. Id.; see also R. 22-2 at 11.

The bankruptcy court credited Margaret’s testimony that she did not include the divorce settlement in her original schedules because Bart had “not paid one cent of the amount that he owes” and that she had “no expectation of ever receiving anything from him.” R. 18-1 at 48; see also Id. at 50 (“Margaret testified credibly that she originally did not list amounts owed ... by Bart to her because she had never received any payments and believed that she would never receive any payments and so, therefore, she felt the value of the obligations was zero.”). While she should have disclosed the divorce settlement, the court concluded that the omission was immaterial and that she had not intended to deceive her creditors:

The court finds that she honestly believed the agreement was worthless and [436]*436uncollectible and honestly didn’t even think of it as an asset. While she should have disclosed the obligations and listed their value as zero, her failure to list was not a material omission and was not made with intent to deceive.

Id. at 53.

The bankruptcy court further concluded that her amended Schedule B was hot false. See Id. at 51 (“[T]he value of the claims at zero is a fair reflection of not only Margaret’s belief about the value of the claims at the time, but the court’s estimation of those values as well based on the evidence presented here.”). Bart, a disbarred attorney and convicted felon, had dim economic prospects. Id. The court found Bart’s testimony that he planned to pay Margaret “at some point in the future ... utterly unbelievable.” Id. at 51; see also Id. at 36 (“The court also finds that Bart was not a credible witness. He is not only a convicted felon for stealing funds, he’s admitted to defrauding Farley, and he was obviously lying throughout this proceedings.”).4

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Cite This Page — Counsel Stack

Bluebook (online)
538 B.R. 431, 2015 U.S. Dist. LEXIS 116616, 2015 WL 5173966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farley-v-kempff-ilnd-2015.