Federal Deposit Insurance Corp. v. Hendren (In Re Hendren)

51 B.R. 781
CourtUnited States Bankruptcy Court, E.D. Tennessee
DecidedJuly 17, 1985
DocketBankruptcy No. 3-84-00309, Adv. No. 3-84-0249
StatusPublished
Cited by21 cases

This text of 51 B.R. 781 (Federal Deposit Insurance Corp. v. Hendren (In Re Hendren)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Deposit Insurance Corp. v. Hendren (In Re Hendren), 51 B.R. 781 (Tenn. 1985).

Opinion

MEMORANDUM

CLIVE W. BARE, Bankruptcy Judge.

Plaintiff Federal Deposit Insurance Corporation (FDIC) challenges the debtor’s right to a discharge and alleges as grounds for denial 11 U.S.C.A. § 727(a)(2)(A), § 727(a)(4)(A) and § 727(a)(5) (1979). 1 Trial *782 was held January 8, 1985. On February 20, 1985, the debtor moved to reopen the hearing for further proof. This motion was granted on March 7, 1985, and additional proof, limited to § 727(a)(5), was received April 2, 1985.

FDIC is the holder of certain obligations payable by the debtor by virtue of FDIC’s acquisition of those assets after First Security Bank in Erwin, Tennessee, and Wa-tauga Valley Bank in Elizabethton, Tennessee, were closed by the Commissioner of Financial Institutions on April 6, 1984.

FDIC’s objections may be summarized as follows:

a. the transfer of approximately $122,-000.00 worth of personal property to various family members after October, 1983, and the cancellation of a $20,000.00 note receivable from one of her sons in November, 1983, in violation of § 727(a)(2)(A);
b. discrepancies in the debtor’s testimony at two § 341 meetings, in violation of § 727(a)(4)(A);
c. the debtor’s failure to adequately explain the disposition of the proceeds of various loans to her and her family members, as well as the disposition of certain articles of jewelry and marketable securities, in violation of § 727(a)(5).

Plaintiff’s Proposed Findings of Fact and Conclusions of Law, at 2 (filed February 22, 1985).

I

The debtor, Barbara Hendren, filed a voluntary petition under Chapter 13 of the United States Bankruptcy Code on February 24, 1984, and a meeting of creditors was held pursuant to § 341 on March 26, 1984. The debtor subsequently filed a motion pursuant to 11 U.S.C.A. § 1307(a) to convert her case to one under Chapter 7 and a second meeting of creditors was held on May 25, 1984. The debtor testified under oath at both hearings.

It does not appear from the record in this case that the debtor ever engaged extensively in business operation. In her chapter 13 statement she indicated her present employment was that of a secretary. The record does indicate that in October 1983 she had an interest in Lee’s Robo car wash in Erwin. See infra II.2.C.

The court has carefully reviewed the mass of material introduced in this proceeding, including pleadings, briefs, depositions, stipulations, amended stipulations and exhibits. The debtor’s admitted failure to keep adequate books and/or records reflecting her financial transactions and bank borrowings has compounded the court’s task. After two trials and a review of the testimony and exhibits the debtor concedes: “It is still unclear ... as to exactly how much money debtor had borrowed from the plaintiff [FDIC as successor to First Security Bank and Watauga Valley Bank] and other banks, in the years of 1977 through 1983. The amounts, however, are somewhere between $520,000.00 to $580,000.00.” Defendant’s Supplemental Proposed Findings of Fact and Conclusions of Law, at 1-2 (filed May 6, 1985).

II

Failure to Explain Loss of Assets Under § 727(a)(5)

1. At trial, January 8, 1985, plaintiff introduced the testimony of a bank examiner, Barnes, which indicated that approximately $312,538.14 loan proceeds from two banks had gone to the debtor either directly or indirectly during the years 1980, 1981, 1982, and 1983. The examiner’s testimony *783 was based upon his review of First Security Bank’s and Watauga Valley Bank’s internal records. His testimony indicated that the debtor had either received proceeds checks from various loans or that when the debtor’s relatives became obligated on certain notes which she had cosigned, the proceeds went to pay off prior obligations in her name. Mr. Barnes’s testimony was founded on certain exhibits submitted in conjunction with a Request for Admissions filed by plaintiff on November 27, 1984, and answered by defendant on December 11, 1984. An itemization of Barnes’s testimony, by exhibit, is as follows:

A. Exhibit B (promissory note dated October 31, 1983, in the principal amount of $90,107.07 payable to First Security Bank, signed by Rose Young (debtor’s mother) 2 and Barbara Hendren) paid off a prior loan to the debtor for $76,000.00, which was disbursed as follows:

(1) $6,000.00 disbursed January 16, 1982, which was deposited in the debtor’s bank account.
(2) $17,000.00 deposited to the debtor’s bank account on November 13, 1980.
(3) $35,000.00 disbursed on April 21, 1981, which was deposited in the debtor’s checking account at United American Bank in Johnson City.
(4) $18,000.00 disbursed on February 28, 1981, to the debtor’s son, Lee, and negotiated at Valley Federal Savings & Loan after the debtor endorsed the proceeds check.

B. Exhibit C (promissory note in the principal amount of $50,000.00 to Watauga Valley Bank, signed by Rose Young, Barbara Hendren, and Joe Hendren) renewed a $55,000.00 obligation incurred by the debt- or on September 24, 1981. The proceeds of this loan were disbursed to the debtor on September 23,1981, and negotiated at United American Bank in Washington County.

C. Exhibit E (promissory note in the principal amount of $6,500.00 signed to First Security Bank by Barbara and Jody Hendren) was a renewal of an obligation incurred on January 19, 1980. The debtor received the proceeds check for the loan and negotiated it at Valley Federal Savings and Loan.

D. Exhibit F (promissory note in the principal amount of $6,800.00 to First Security Bank, signed by Barbara and Jody Hendren). The proceeds check for this loan was given to Jody Hendren on April 13,1982, endorsed by the debtor and deposited in a Merrill Lynch account in Johnson City.

E. Exhibit G (promissory note in the principal amount of $20,000.00 to First Security Bank, signed by Lee and Barbara Hendren). The loan was originally disbursed on March 15, 1982, by a proceeds check to Lee Hendren, endorsed by the debtor, and deposited in a Merrill Lynch account in Johnson City.

F. Exhibit I (promissory note in the principal amount of $6,900.00 to First Security Bank signed by Barbara and Lee Hendren and an undisclosed third party). Six thousand dollars ($6,000.00) of these funds were eventually placed in the debt- or’s bank account on November 4, 1982, along with $3,000.00 from Jody Hendren and $500.00 from an unknown source.

G. Exhibit J (promissory note in the principal amount of $18,669.57 to First Security Bank, signed by Rose Young and Barbara Hendren) was a renewal of a $27,-000.00 obligation. The proceeds of this loan were disbursed as follows:

(1) $10,000.00 check to Barbara Hen-dren on January 27, 1981.
(2) $7,000.00 check to Barbara Hen-dren on January 27, 1981.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hendon v. Lufkin (In Re Lufkin)
393 B.R. 585 (E.D. Tennessee, 2008)
Gordon v. Courtney (In Re Courtney)
351 B.R. 491 (E.D. Tennessee, 2006)
Taunt v. Patrick (In Re Patrick)
290 B.R. 306 (E.D. Michigan, 2003)
Buckeye Retirement Co. v. Heil (In Re Heil)
289 B.R. 897 (E.D. Tennessee, 2003)
In re: Ottoson-King v.
3 F. App'x 147 (Fourth Circuit, 2001)
Thaler v. Erdheim (In Re Erdheim)
197 B.R. 23 (E.D. New York, 1996)
Minsky v. Silverstein (In Re Silverstein)
151 B.R. 657 (E.D. New York, 1993)
Pyramid Technology Corp. v. Cook (In Re Cook)
146 B.R. 934 (E.D. Pennsylvania, 1992)
Haywood Properties, Ltd. v. Jacobe (In Re Jacobe)
116 B.R. 463 (E.D. Virginia, 1990)
G & J Investments v. Zell (In Re Zell)
108 B.R. 615 (S.D. Ohio, 1989)
Beloff v. Gallini (In Re Gallini)
96 B.R. 491 (M.D. Pennsylvania, 1989)
Crocker v. Fowlkes (In re Fowlkes)
91 B.R. 829 (M.D. Tennessee, 1988)
Barker v. Clemens (In Re Clemens)
83 B.R. 945 (N.D. Ohio, 1988)
Losinski v. Losinski (In Re Losinski)
80 B.R. 464 (D. Minnesota, 1987)
Schultz v. Shapiro (In Re Shapiro)
59 B.R. 844 (E.D. New York, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
51 B.R. 781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-corp-v-hendren-in-re-hendren-tneb-1985.