Gebhardt v. Saunders (In re Saunders)

528 B.R. 860
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedApril 3, 2015
DocketCase No.: 12-63663; ADVERSARY PROCEEDING Case No.: 13-5337-JRS
StatusPublished
Cited by2 cases

This text of 528 B.R. 860 (Gebhardt v. Saunders (In re Saunders)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gebhardt v. Saunders (In re Saunders), 528 B.R. 860 (Ga. 2015).

Opinion

ORDER

James R. Sacca, U.S. Bankruptcy Court Judge

Currently before the Court are the U.S. Trustee’s (the “Trustee”) Motion to Compel the Defendant to Answer Oral Questions at a Deposition (Doc. 83) and Addendum to Motion to Compel the Defendant to Answer Oral Questions at a Deposition (Doc. 96) (collectively, the “Motion”). The Court must consider three issues to resolve the motion: (a) whether the Defendant may invoke her Fifth Amendment privilege against self-incrimination in response to certain questions asked by the Trustee, (b) if she may invoke the privilege here, whether she waived the right to do so and (c) whether the Debtor should be compelled to answer certain questions she contends are irrelevant.

Facts

Defendant filed for chapter 7 relief on June 1, 2012. She received a discharge on September 25, 2012. Subsequently, on September 24 2013, within the one year period required by the Code, the Trustee [864]*864brought this adversary proceeding seeking to revoke her discharge pursuant to § 727(d)(1). The complaint alleges that the Defendant failed to disclose prepetition income, assets, and causes of actions on her petition, Schedules, and Statement of Financial Affairs, as well as at the § 341 meeting of creditors and, therefore, her discharge should be revoked because it was obtained through fraud. (CompLIffl 44-49).

With respect to the matters involving the assertion of the Fifth Amendment privilege against self-incrimination, the privilege was asserted at an oral examination with respect to Defendant’s response to Question 18 on her Statement of Financial Affairs filed in her bankruptcy case under penalty of perjury. In Question 18, a debtor is required to answer whether she was an officer, director, partner, or managing executive of a corporation, partner in a partnership, sole proprietor, or was self-employed in a trade, profession, or other activity either full or part time within six years immediately preceding the commencement of the case. Defendant’s response to this question was to check the box marked “None.”

The questions to which Defendant refused to answer on the grounds of relevancy involved her responses to Question 1 on her Statement of Financial Affairs and those areas on her Schedule B-Personal Property. In Question 1 on the Statement of Financial Affairs, a debtor is required to disclose her gross income from employment or operation of a business, trade or profession from (a) the beginning of the calendar year to the petition date, which in this case was 2012, and (b) the two calendar years prior to the calendar year in which the petition was filed, which in this case were 2010 and 2011. Defendant’s response to this question, which was not broken down by year, was simply “$12,480 Social Security.”1

With respect to Schedule B-Personal Property, a debtor is required to disclose “other contingent and unliquidated claims of every nature, including ... counterclaims ...” as well as “other personal property of any kind not already listed here.” Defendant checked “None” under each of those categories. About two months after her discharge was entered, Defendant was a named plaintiff in a class action in which damages were sought in excess of $4 billion.

In January 2015, the Defendant was examined under oath at a deposition by the Trustee. During the examination, the Trustee questioned the Defendant specifically about her response to Questions 18 and areas related to her responses to Question 1 and disclosures on Schedule B. The questions and her responses are attached to the original Motion as Exhibit A. With respect to the questions to which she asserted her Fifth Amendment privilege, her testimony about related matters before and after invocation of the privilege is attached to the Addendum as Exhibits B and C, respectively. When Defendant claimed her Fifth Amendment privilege, she would not answer the questions specifically about her answer to Question 18. The Defendant did, however, answer questions regarding her involvement in the International Environmental Association, her involvement in conducting forensic loan audits and analyses, and various forensic loan auditing courses for which she was an instructor within six years preceding the commencement of her bankruptcy case.

[865]*865Throughout the examination there were multiple other questions that the Defendant refused to answer on grounds that they were irrelevant. For example, she also would not answer for whom she performed services and how much she was paid, nor did she answer some questions about the lawsuit she filed shortly after her discharge.

Thereafter, the Trustee filed his motion to compel. A hearing was held on the motion on March 3, 2015, at which both the Defendant and counsel for the Trustee appeared. After considering all matters of record and the arguments of the parties, the Court stated on the record the reasons it would compel the Defendant to answer the questions to which the Defendant objected on the grounds of relevancy and order her to answer those questions and reasonable follow up questions. The Court took under advisement that portion of the Motion in which the Trustee sought an order compelling the Defendant to answer the questions to which she invoked her Fifth Amendment privilege. The Court invited the parties to submit briefs on those Fifth Amendment issues. Thereafter, the Trustee filed his Addendum, but the Defendant filed no further pleadings or authorities.

Discussion

“The fifth amendment privilege against self-incrimination “protects a person ... against being incriminated by his own compelled testimonial communications.” U.S. v. Argomaniz, 925 F.2d 1349, 1352 (11th Cir.1991) (citing Fisher v. United States, 425 U.S. 391, 409, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)). “It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.” Id. at 1352-53. “The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. U.S., 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

■ The questions and answers to which Defendant asserted her Fifth Amendment privilege as set forth in Exhibit A to the Addendum (the “Questions”), are as follows:

Q: “ — you were not an officer, director, partner, or managing executive of a corporation, partner in a partnership, sole proprietor, or self-employed in a trade, profession, or other activity either full-time or part-time?”
A: “Interesting.”
Q: “So my question for you, ma’am, is the block there at paragraph 18 is checked none. Is this a correct answer?”
A: “Sir, I am not going to answer. I’m going to take the Fifth because there is extenuating circumstances, and I don’t think it’s well-described in this paragraph.”
Q: “I’m sorry. When you say you’re taking the fifth, what does that mean?

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Cite This Page — Counsel Stack

Bluebook (online)
528 B.R. 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gebhardt-v-saunders-in-re-saunders-ganb-2015.