Fokkena v. Klages (In re Klages)

381 B.R. 550, 59 Collier Bankr. Cas. 2d 284, 2008 Bankr. LEXIS 186
CourtUnited States Bankruptcy Appellate Panel for the Eighth Circuit
DecidedJanuary 31, 2008
DocketBAP No. 07-6051 SI
StatusPublished
Cited by15 cases

This text of 381 B.R. 550 (Fokkena v. Klages (In re Klages)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fokkena v. Klages (In re Klages), 381 B.R. 550, 59 Collier Bankr. Cas. 2d 284, 2008 Bankr. LEXIS 186 (bap8 2008).

Opinion

SCHERMER, Bankruptcy Judge.

Robert D. Klages (“Debtor”) appeals the bankruptcy court’s1 judgment revoking his discharge for knowingly and fraudulently failing to turn over a tax refund to the Trustee of his Chapter 7 bankruptcy estate. We have jurisdiction over this appeal from the final order of the bankruptcy court. See 28 U.S.C. § 158(b). For the reasons set forth below, we affirm.

[552]*552ISSUE

The issue before this court is whether the bankruptcy court erred when it concluded that the Debtor’s failure to turn over his tax refund to the Trustee of his Chapter 7 bankruptcy estate was done knowingly and fraudulently. We conclude that the bankruptcy court did not err when it determined that the Debtor’s failure to turn over the tax refund was done knowingly and fraudulently. Accordingly, we affirm the revocation of the Debtor’s discharge.

BACKGROUND

The Debtor filed a petition for relief under Chapter 7 of the Bankruptcy Code on October 10, 2005. The Debtor attended the meeting of creditors pursuant to Section 341 of the Bankruptcy Code on November 15, 2005. At the meeting, Thomas L. Flynn, the Trustee of the Debtor’s Chapter 7 bankruptcy estate (“Trustee”), advised the Debtor not to spend any tax refund without first contacting the Trustee’s office. The Trustee further advised the Debtor not to spend any tax refund without first contacting the Trustee’s office even after receipt of a notice of discharge from the bankruptcy court. The Trustee gave the Debtor a written handout that contained the following admonition:

WARNING: Do not spend any of your tax refunds until you have received approval from my office, even it you have received notice from the Bankruptcy Court that a bankruptcy discharge has been entered. The bankruptcy discharge does not close your bankruptcy case or eliminate your need to turn over non-exempt assets. If it is determined that you owe nonexempt monies to your bankrupt estate, those funds need to be turned over immediately, in full (no payment plans will be accepted), upon notice from my office. Failure to comply with the terms of this letter or to cooperate with me in the administration of your bankruptcy estate may constitute cause to revoke your bankruptcy discharge. You will receive only one notice from my office of nonexempt monies due your bankruptcy estate and upon non-compliance, I will seek to revoke your bankruptcy discharge.

At the end of the meeting of creditors, the Trustee also requested the Debtor to send the Trustee a copy of his federal and state tax returns when he filed them.

The Debtor received a discharge on January 18, 2006. In February of 2006, the Debtor filed federal and state tax returns for calendar year 2005. The Debtor received a federal refund in the amount of $3,445 and a state refund in the amount of $65. The Debtor spent the tax refunds on living expenses.

On June 5, 2006, the Trustee filed a motion seeking the examination of the Debtor pursuant to Bankruptcy Rule 2004 (“First 2004 Motion”). In the First 2004 Motion, the Trustee requested the Debtor to attend an examination and to bring a copy of his 2005 federal and state tax returns to such examination. The Debtor provided the Trustee with a copy of his 2005 federal and state tax returns but did not appear for examination.

On June 21, 2006, the Trustee made demand upon the Debtor to turn over $1,556.11 of the tax refunds as the portion belonging to the Debtor’s bankruptcy estate. The Debtor failed to do so. On July 31, 2006, the Trustee filed a second motion seeking the examination of the Debtor pursuant to Bankruptcy Rule 2004 (“Second 2004 Motion”). In the Second 2004 Motion, the Trustee requested the Debtor to attend an examination and to bring $1,556.11 to the examination. The Debtor [553]*553failed to attend or to pay any amount to the Trustee.

The United States Trustee filed a complaint seeking the revocation of the Debt- or’s discharge for, inter alia, knowingly and fraudulently failing to deliver the nonexempt tax refund to the Trustee. At the trial the Debtor acknowledged receiving an oral warning from the- Trustee at the meeting of creditors not to spend any tax refund without first contacting the Trustee’s office. The Debtor also acknowledged receipt of the written handout but stated that he did not read it. The Debtor testified that he understood the warning to mean that he should not spend any refund without further notice from the court. The Debtor also acknowledged the Trustee’s request that the Debtor provide the Trustee with a copy of his tax returns when prepared.

The Debtor testified that when he received the notice of his discharge he believed that he did not owe anybody any money and that the Trustee was no longer interested in his tax refund. The bankruptcy court found that the Debtor’s testimony that he believed he could spend the refunds was not credible in light of the warnings to the contrary that he had received. The bankruptcy court found that the Debtor knowingly spent the money -with the intent to defraud the Trastee and the bankruptcy estate. Accordingly, the bankruptcy court revoked the Debtor’s discharge pursuant to Section 727(d)(2) of the Bankruptcy Code. The Debtor appealed the revocation of his discharge.

STANDARD OF REVIEW

We review the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. Richardson v. Sugg, 448 F.3d 1046, 1052 (8th Cir.2006); Four B. Corp. v. Food Barn Stores, Inc. (In re Food Barn Stores, Inc.), 107 F.3d 558, 561 (8th Cir.1997); Miller v. Kasden (In re Kasden), 209 B.R. 239, 241 (8th Cir. BAP 1997). We will overturn a factual finding only if it is not supported by substantial evidence in the record, if it is based on an erroneous view of the law, or if we are left with the definite and firm conviction than an error was made. Richardson v. Sugg, 448 F.3d at 1052. We afford due regard to the bankruptcy court’s judgment of the credibility of the witness. Fed.R. Bankr.P. 8013; Richardson v. Sugg, 448 F.3d at 1052; In re Kasden, 209 B.R. at 241. A factual finding supported by substantial evidence is not clearly erroneous. Richardson v. Sugg, 448 F.3d at 1052. Likewise, a trial court’s choice between two permissible views of the evidence is not clearly erroneous. Id.

DISCUSSION

The discharge of a Chapter 7 debtor shall be revoked if the debtor acquired property that is property of the estate and knowingly and fraudulently failed to report the acquisition of such property or to deliver such property to the trustee. 11 U.S.C. § 727(d)(2). The parties do not dispute that the non-exempt tax refund of $1,556.11 is property of the Debtor’s bankruptcy estate; nor do they dispute that the Debtor failed to deliver such property to the Trustee. The sole issue in dispute is whether the Debtor knowingly and fraudulently failed to turn over the non-exempt tax refund.

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Bluebook (online)
381 B.R. 550, 59 Collier Bankr. Cas. 2d 284, 2008 Bankr. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fokkena-v-klages-in-re-klages-bap8-2008.