Ferguson Enterprises, Inc. v. Lort (In re Lort)

343 B.R. 302, 19 Fla. L. Weekly Fed. B 179, 2006 Bankr. LEXIS 526
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedFebruary 27, 2006
DocketBankruptcy No. 04-12667-3P3; Adversary No. 05-00098
StatusPublished

This text of 343 B.R. 302 (Ferguson Enterprises, Inc. v. Lort (In re Lort)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferguson Enterprises, Inc. v. Lort (In re Lort), 343 B.R. 302, 19 Fla. L. Weekly Fed. B 179, 2006 Bankr. LEXIS 526 (Fla. 2006).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GEORGE L. PROCTOR, Bankruptcy Judge.

This Proceeding is before the Court upon the Complaint filed by Ferguson Enterprises, Inc. seeking Denial of Discharge and Exception to Discharge. After a hearing held on October 27, 2005, the Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. On December 7, 2004, Defendant filed a petition for relief under Chapter 7 of the Bankruptcy Code.

2. Premier Plumbing (“Premier”) began its business operation in the year 2000. Defendant was the sole officer, director and corporate shareholder of Premier.

[304]*3043. In 2002, Premier opened a credit line of approximately $100,000 with Plaintiff. Plaintiff is a supplier of plumbing materials and fixtures. On November 6, 2002, Defendant personally guaranteed payment of Premier’s debt to Plaintiff. [ P Ex. 50, Tr. at 17]

4. From November 2002 to March 2004, Defendant and Premier ordered and received supplies from Plaintiff. [Tr. at 62, 65]

5. By the end of February, 2004, Defendant and Premier owed the Plaintiff over $103,714.24. [Tr. at 58]

6. Premier typically kept at least $30,000 of cash in its bank account in order to pay its suppliers. [Tr. at 44-45] By the end of April of 2004, the balance of Premier’s bank account was only $1,954.06. [Tr. at 46]

8. Between February and March of 2004, Defendant caused sums totaling $66,100 to be paid from Premier’s bank account to his relatives, former wives and girlfriend. The distribution of these payments is as follows: (1) a payment of $48,500 to his father on March 23, 2004, (2) a payment of $7,500 to his niece on March 9, 2004, (3) payment to his sister for $5,400 on March 8, 2004, (4) payment to his girlfriend, Leia Smith, in the amount of $3,000 on February 20, 2004, (5) payment to his former wife, Cynthia Lort, in the amount of $450 on February 9, 2004 and payment to his former wife, Christine Lort, in the amount of $1,250 on February 6, 2004. [P Ex. 25, 43, 22, 51, 52, 53]

9. Defendant testified that the $48,500 payment to his father was made to repay a $45,000 loan his father had made to the company. [Tr. at 35-37] Defendant also testified that the loan was not made as a single payment but as several large cash payments over a span of time. [Tr. at 37-38] Defendant could not recall the specific amounts of the individual payments or the dates the cash payments were made. [Tr at 37-38] Defendant was unable to produce any records, deposits or receipts in support of his claim that the cash payments were made to Premier. Also, Defendant could not even recall whether the promissory note was executed before the first payment was made or subsequent to that. [Tr. at 37]

10. Defendant testified that the payments made to his former wives, Christine and Cynthia Lort, were not business related. [Tr. at 26-27] Although Defendant testified that he had reimbursed the corporation for the payments made to his former wives, he was unable to produce any receipts in support of this assertion. [Tr. at 27]

11. Defendant testified that the $3,000 paid to his girlfriend, Leia Smith, was for work she did for his business and not as payment for the personal jobs she did for him, which included watching his daughter and maintaining his house. [Tr. at 24-25] However, Defendant admitted that he did not have a detailed understanding of what Ms. Smith did in order to earn the $3,000 and that he never gave her a W-2 or 1099. [Tr. at 25]

12. Defendant testified that the $5,400 check he wrote to his sister was for work she performed for the business. [Tr. At 32] No receipts or invoices for what services his sister performed for the company were produced. [Tr. At 32]

13. Defendant testified that the $7,500 check to his niece, Sandy Hill, was for work she performed for the business, which included cleaning houses and laying sod. [Tr. At 32]

14. Premier’s business effectively ended in March of 2004, when the company’s master plumber left.

[305]*30515. From January of 2004 to March of 2004, Plaintiff made numerous attempts to collect the debt it was owed from the Defendant and Premier Plumbing. [Tr. at 58-59]

CONCLUSION OF LAW

Plaintiff asserts the Defendant’s discharge should be denied pursuant to 11 U.S.C. § § 727(a)(2) and (a)(5) and an exception to discharge pursuant to § 523.

II U.S.C. § 727

11 U.S.C. § 727 provides various grounds for denial of a discharge. Actions to deny a debtor’s discharge pursuant to § 727 must be construed strictly against a creditor and liberally in favor of the debtor. In re Jacobs, 243 B.R. 836, 842 (Bankr.M.D.Fla.2000). Therefore, a creditor must prove that a debt is nondis-chargeable by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). However, the right to a discharge in bankruptcy has limitations. Id. Once a plaintiff meets its initial burden, the ultimate burden of persuasion rests with the defendant. In re Wilbur, 211 B.R. 98, 101 (Bankr.M.D.Fla.1997).

11 U.S.C. Section 727(a)(2)(A)

This Court has previously held that 11 U.S.C. § 727(a)(2)(A) requires the objecting party to show that: (1) a transfer occurred; (2) the property transferred was property of the debtor; (3) the transfer was within one year of the petition; and (4) at the time of the transfer the debtor possessed the intent to hinder, delay or defraud the creditor. Grant v. Benjamin, 210 B.R. 203, 208 (Bankr.M.D.Fla.1997).

a.Transfer occurred

It is undisputed that all the relevant transfers occurred.

b.Transferred property was property of the debtor

Defendant asserts that § 727(a)(2)(A) is not grounds upon which his discharge can be denied as the allegations and evidence all relate to transfers of the property of Defendant’s business, Premier Plumbing, and that there is no proof that Premier was an alter-ego of the Defendant. However, Plaintiff asserts that since the Defendant was the sole officer, director and corporate shareholder of Premier that the property transferred is property of the Debtor.

This Court has previously ruled that used car lots transferred by a debtor-husband’s car lot business to his non-debtor wife’s company, were to be considered property of the debtor’s estate since the debtor was president and 25% stockholder of the company that controlled the car lot business. Benjamin, 210 B.R. at 209. In the instant case, Defendant was the sole officer, director and corporate shareholder of Premier. Thus, in accordance with the reasoning this Court applied to reach its holding in Benjamin, the Court finds the property transferred in the instant case was property of the Defendant’s bankruptcy estate.

c. The transfer was within one year of the petition date

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Related

Grogan v. Garner
498 U.S. 279 (Supreme Court, 1991)
Clark v. Wilbur (In Re Wilbur)
211 B.R. 98 (M.D. Florida, 1997)
Grant v. Benjamin (In Re Benjamin)
210 B.R. 203 (M.D. Florida, 1997)
Clark v. Allen (In re Allen)
210 B.R. 861 (M.D. Florida, 1997)

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Bluebook (online)
343 B.R. 302, 19 Fla. L. Weekly Fed. B 179, 2006 Bankr. LEXIS 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferguson-enterprises-inc-v-lort-in-re-lort-flmb-2006.