Harrington v. Simmons (Simmons)

525 B.R. 543, 2015 Bankr. LEXIS 664, 60 Bankr. Ct. Dec. (CRR) 191
CourtBankruptcy Appellate Panel of the First Circuit
DecidedMarch 3, 2015
DocketBAP No. MW 14-048; Bankruptcy No. 10-45664-MSH; Adversary No. 12-04035-MSH
StatusPublished
Cited by16 cases

This text of 525 B.R. 543 (Harrington v. Simmons (Simmons)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrington v. Simmons (Simmons), 525 B.R. 543, 2015 Bankr. LEXIS 664, 60 Bankr. Ct. Dec. (CRR) 191 (bap1 2015).

Opinion

KORNREICH, Bankruptcy Judge.

On the request of the United States Trustee (“UST”), the bankruptcy court entered summary judgment denying the discharge of Michael J. Simmons because of his failure to keep business records and his failure to explain satisfactorily the loss of assets. On appeal Simmons asserts he preserved his right to trial by demonstrating a genuine dispute of material fact with evidence justifying his paltry record keeping and explaining the loss of assets. We disagree and AFFIRM the summary judgment.

BACKGROUND

Simmons is a high school graduate with two years of college education. He quit [545]*545college to help an individual named Kai Kunz start a real estate business. For some period of time they lived together. In 2006, Simmons began investing in real estate in his own name. Kunz helped him find properties and arrange financing. By 2007, Simmons had acquired 27 residential rental properties in Fitchburg, Gardner, Haverhill, Leominster, Whitinsville, and Worcester, Massachusetts.

Simmons hired managers to collect the rents and manage the properties. He received some rents in cash and some in checks. Most rents were deposited into accounts maintained by Simmons or the managers. Simmons did not segregate the rents or maintain separate accounts for each tenant. Some of the rents were retained by managers to pay for repairs. The record does not disclose the identity of all of the property managers, the receipts due or received by Simmons, or the location of and balance in any bank account maintained by him with respect to these properties.

Simmons commenced this chapter 7 case in November 2010. His schedules and statement of affairs revealed an interest in only five of the 27 properties and his intention to surrender those five. He was unemployed and dependent upon family for lodging and support. He reported no income from 2008 to 2010, little cash on hand, no meaningful balance in any bank account, and no assets of value to the bankruptcy estate.

Simmons listed unsecured claims in excess of $4,000,000.00, most of which arose from mortgage deficiencies, and secured claims of $1,540,961.91 on the five properties.

The UST asked Simmons to provide copies of documents relating to his financial condition and business transactions, including bank account statements, canceled checks, and state and federal income tax returns. Among other things, Simmons produced copies of his federal tax returns for the years 2007, 2008, and 2009. Each return for those years included a schedule of supplemental income and loss from real estate showing income from only one property.

The UST conducted an examination of Simmons pursuant to Rule 2004. See Fed. R. Bankr.P.2004. At that examination, Simmons could not recall any details regarding the income and expenses of his real estate business. Thereafter, the UST repeatedly asked Simmons to turn over rent rolls or ledgers evidencing the amount of rents collected. Simmons produced none.

In April 2012, the UST commenced an adversary proceeding objecting to Simmons’ discharge. The complaint contained three counts: Count I under § 727(a)(3) for failure to keep or preserve records; Count II ’ under § 727(a)(4) for giving a false oath or account; and Count III under § 727(a)(5) for failure to explain satisfactorily the loss of assets.1 Simmons raised several affirmative defenses including one stating the UST’s claims were barred by the acts of third parties.

The UST asked for summary judgment on Counts I and III. He supported his motion with the affidavits of his counsel and a paralegal specialist, and a statement of material facts showing Simmons had failed to keep adequate books and records- and failed to explain satisfactorily the loss of rental income. Simmons did not contest the UST’s assertions of fact in any meaningful way. Instead he argued that under the circumstances his record keeping deli-[546]*546ciencies were justified and the losses were explained satisfactorily. In support of these arguments Simmons provided a bar-ebones affidavit stating: he had turned over all the records he had or could obtain reasonably; he did not receive most of the rents; he did not handle the management of any properties; and he had been a “dupe” to Kunz and his associates. Between the filing of the motion and the hearing, Simmons continued to deliver multifarious documents to the UST, including a large trash barrel containing a hodgepodge of papers.

After the hearing, the UST supplemented the record by adding the affidavit of his records clerk, updated affidavits of his counsel and the paralegal specialist, and the transcript of Simmons’ testimony at the Rule 2004 examination. The clerk’s affidavit described the records delivered by Simmons as including a few rent checks, merchandise receipts, repair bills, court documents, handwritten notes, and deposit slips. Simmons’ testimony showed he put the properties in his own name at the urging of Kunz; he attended all of the closings and executed all of the mortgages; and he allowed others to manage his properties.

Concluding that Simmons had failed to keep records from which his financial condition or business transactions might be ascertained, and that he did not explain satisfactorily the loss of rental income, the bankruptcy court entered summary judgment in favor of the UST on Counts I and III. Regarding Simmons’ defenses of justi‘fication and satisfactory explanation, the bankruptcy court stated:

It is only in the exceptional circumstance that I would deny a party his day in court to establish justification for his conduct, especially in a fact intensive inquiry involving discharge denial. But this is such a circumstance. I am not basing my decision on Mr. Simmons credibility or lack thereof. Taking Mr. Simmons at his word that he gave the UST all the records he had or could get his hands on and that he was merely a patsy for Mr. Kunz, his failure to have kept or maintained records that would establish a clear picture of his financial status prior to and on the date of his bankruptcy filing remains unjustifiable under the circumstances.
Mr. Simmons is a high school graduate with some level of college education. He dropped out of college for the very purpose of learning the real estate business from Mr. Kunz, with whom he worked • for many years. During the period prior to his bankruptcy Mr. Simmons owned at least 27 pieces of real estate, borrowing millions of dollars in connection with these properties. If Mr. Simmons was so foolish or naive as to think that because he was acting as a shill for Mr. Kunz he would be excused from the basic responsibilities imposed on any owner of real estate, he must unfortunately be required to suffer the consequences of his poor judgment. Mr. Simmons’ choice to act as Charlie McCarthy to Mr. Kunz’s Edgar Bergen no more justifies his inability to account for the operation of the real estate he owned and the losses he claims to have incurred than would it excuse his failure to comply with the municipal health and safety codes imposed upon him as a landlord.

On appeal, Simmons asserts he had preserved his right to trial by demonstrating a genuine dispute of material fact regarding his claim of victimization by Kunz.

JURISDICTION

We may hear appeals from a final judgment of the bankruptcy court. See 28 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
525 B.R. 543, 2015 Bankr. LEXIS 664, 60 Bankr. Ct. Dec. (CRR) 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrington-v-simmons-simmons-bap1-2015.