In re: Ottoson-King v.

3 F. App'x 147
CourtCourt of Appeals for the Fourth Circuit
DecidedFebruary 20, 2001
Docket00-1706
StatusUnpublished
Cited by9 cases

This text of 3 F. App'x 147 (In re: Ottoson-King v.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re: Ottoson-King v., 3 F. App'x 147 (4th Cir. 2001).

Opinion

OPINION

PER CURIAM.

Ann Ottoson-King petitioned for bankruptcy under Chapter 7. Ed and Lue Powers, creditors of Ottoson-King’s, objected to her discharge. After a two-day trial, the bankruptcy court, ruling from the bench, denied Ottoson-King a discharge on the ground that, under 11 U.S.C. § 727(a)(5) (1994), she had failed to explain adequately the loss of assets that she had previously listed on financial statements. Ottoson-King appeals the district court’s affirmance of that ruling. We, too, affirm. I.

Ottoson-King, an attorney, practiced law for twelve years until 1992 when her firm dissolved. After that, Ottoson-King and a partner established a corporation known as American Coastal Ties Marines, Inc. (ACT Marines). In February 1995, ACT Marines purchased the assets of two companies owned by Mr. and Mrs. Powers. The purchase of the Powers’ companies was financed by U.S. Bank in the State of Washington. Business assets and the personal guarantees of Ottoson-King and the Powers secured this bank loan. ACT Marines folded in 1997 and, in 1998, OttosonKing petitioned for bankruptcy. After the dissolution of ACT Marines, the Powers were forced to repay the loan to U.S. Bank. They subsequently obtained a judgment against Ottoson-King in the amount of the bank loan, $1,116,937.70.

In connection with the acquisition of the loan from U.S. Bank, in February 1995, Ottoson-King submitted a financial statement to the bank that stated her net worth as $1,942,993. That statement showed $270,000 in savings, $260,000 in stocks and bonds, $1,195,000 in real estate, a $50,000 claim against her former law firm, and $750,000 of “appraised and certified antiques and jewelry.” In May 1996, approximately one year later, Ottoson-King submitted a second financial statement to U.S. Bank showing a net worth of $2,030,225. This statement showed only nominal savings, but $250,000 in stocks, $1,245,000 in real estate, $50,000 in an IRA account and, again, $750,000 in antiques and jewelry.

On her bankruptcy schedules, filed in June 1998, Ottoson-King listed real estate of only $575,000, $50,000 in a joint bank account with her husband, $600,000 in a joint brokerage account with her husband, two IRA accounts totaling $50,000 and antiques and jewelry of an unknown amount. Although she never formally amended her bankruptcy schedules, when pressed by her Chapter 7 trustee at the meeting of creditors, Ottoson-King furnished an itemized listing of clothing, antiques and jewelry. That list included only $615 in heirlooms and $500 in jewelry.

*150 At her deposition, Ottoson-King was asked about the difference between the $750,000 in antiques and jewelry shown on the 1996 financial statement and the approximately $1100 in antiques and jewelry listed on the bankruptcy schedule. Otto-son-King answered that she did not know and did not remember which items she believed, in 1995 and 1996, were worth $750,000. When asked if she had any jewelry or antiques worth $750,000, OttosonKing replied that she must have believed that she did at the time she completed the financial statements, but that she did not know if she did, in fact, have any items worth that amount. She did acknowledge that she had not disposed of any antiques or jewelry listed in the financial statements since February 1995, nor had such items depreciated. When asked to account for the discrepancy between the earlier financial statements and the bankruptcy schedules, Ottoson-King answered that she did not know if anything had happened to the assets that would cause the discrepancy.

Another large, allegedly missing, asset is the $250,000 in stocks listed on OttosonKing’s 1996 U.S. Bank financial statement. These stocks were not listed on OttosonKing’s bankruptcy schedule; rather, on the schedule, the only similar item Otto-son-King listed was a $600,000 brokerage account held as a tenancy by the entirety with her husband. At trial, Ottoson-King stated that the stocks listed on the 1996 financial statement may have been part of the $600,000 brokerage account listed on her bankruptcy schedule, but she was not certain. She attempted to explain her confusion by stating that her husband handled the finances in her family. The bankruptcy court found this explanation unsatisfactory because Ottoson-King was not an unsophisticated party, but rather a businesswoman with a law degree, an MBA, and many credits toward an MLA, and because there was no reason why she could not remember the events of only a few years ago.

Ottoson-King’s husband also testified at the trial. In his testimony, he indicated that he did not believe that his wife possessed antiques or jewelry worth $750,000 in either May 1996, or at the time of bankruptcy. He stated that he owned some antiques but that he did not know their value. He had not disposed of any antiques between 1996 and 1998.

The bankruptcy court concluded that Ottoson-King “gave no satisfactory response” to the questions concerning the loss of assets previously listed on her financial statements. The court recognized that Ottoson-King had testified that, on the instruction of a U.S. Bank officer, she had included both her and her husband’s assets in the 1996 financial statement, and that the bank officer’s deposition testimony neither confirmed nor refuted OttosonKing’s assertion. The bankruptcy court found, however, that financial statement itself did not indicate whether particular assets were solely or jointly owned. For these reasons, the bankruptcy court refused to discharge Ottoson-King. The district court affirmed this ruling on the reasoning of the bankruptcy court.

II.

In bankruptcy cases, we review the district court’s judgment de novo, and the bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. See In re Tudor Assosc., Ltd., II, 20 F.3d 115, 119 (4th Cir.1994). In reviewing the bankruptcy court’s findings of fact, we must give “due regard ... to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” Fed. R.Bankr.P. 8013.

The Bankruptcy Code provides that a debtor should be denied a discharge if “the debtor has failed to explain satisfactorily ... any loss of assets or deficiency *151 of assets to meet the debtor’s liabilities.” 11 U.S.C. § 727(a)(5). This statute “gives a court broad power to decline to grant a discharge in bankruptcy where the debtor does not adequately explain a shortage, loss, or disappearance of assets.” In re Martin, 698 F.2d 883, 886 (7th Cir.1983). “In a proceeding involving Section 727(a)(5), the initial burden is on the party objecting to a discharge to produce evidence establishing the basis for his objection whereupon the burden shifts to the debtor to explain satisfactorily the loss or deficiency of assets.” In re Farouki, 133 B.R. 769, 777 (Bankr.E.D.Va.1991), aff'd 14 F.3d 244, 251 (4th Cir.1994); In re Chalik,

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3 F. App'x 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ottoson-king-v-ca4-2001.