In re Wood

601 B.R. 754
CourtUnited States Bankruptcy Court, W.D. Kentucky
DecidedMay 15, 2019
DocketCASE NO. 18-32555
StatusPublished

This text of 601 B.R. 754 (In re Wood) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Wood, 601 B.R. 754 (Ky. 2019).

Opinion

Alan C. Stout, United States Bankruptcy Judge

This case comes before the Court on the Motion to Convert From Chapter 7 to Chapter 13 (the "Motion") filed by Julie Marie Wood (the "Debtor"). The Motion is somewhat brief, and simply states that the Debtor is eligible to be a debtor under Chapter 13 of the Code and desires to convert this matter to a case under that Chapter. Both Michael E. Wheatley, the Chapter 7 Trustee, and Creditor Janice Gerstenecker ("Gerstenecker") objected to the Motion. The Court conducted an evidentiary hearing on the Motion on April 23-24, 2019. At the hearing, the Debtor, the Chapter 7 Trustee, and counsel for Gerstenecker all appeared. Based upon the testimony presented, the exhibits introduced at trial, the argument of counsel, and the record in this case, the Court concludes that the Motion must be denied.

The Court enters the following Findings of Fact and Conclusions of Law pursuant to Fed. R. Bank. P. 7052.

FINDINGS OF FACT

A. The Debtor

The Debtor is a single, middle-aged mother of two children. She is a licensed physical therapist, with a four year degree in biology from the University of Kentucky, as well as a two year graduate degree from Bellarmine University. The Debtor has a long work history, wherein she has held multiple jobs since completing her education. The Debtor is not a financially *756unsophisticated person as she claims, with no understanding of financial matters. Indeed, the Debtor has handled financial matters throughout her adult life, including the filing of multiple tax returns, borrowing funds to finance her education, and borrowing funds to pay off those student loans. The Debtor is in charge of her household, and handles all the financial matters associated therewith, including the care and education of her children.

B. The Loan

In 2014, the Debtor was married to Gerstenecker's son, Adam Gerstenecker. To finance the Debtor's second degree from Bellarmine, the Debtor took out certain student loans. On or about September 16, 2014, Gerstenecker loaned the Debtor $78,444.02 to pay off the above-referenced student loans. The Debtor made four monthly installment payments to Gerstenecker on the loan. Once the Debtor and her former spouse began having marital difficulties and a divorce was imminent, the Debtor stopped making payments on the loan to Gerstenecker.

Gerstenecker filed suit against the Debtor in Alabama state court in December of 2015. Gerstenecker prevailed at the trial court, which entered a judgment in favor of Gerstenecker for the loan balance. The Debtor appealed, and the case eventually reached the Alabama Supreme Court.

On May 19, 2017, the Alabama Supreme Court affirmed the trial court's judgment, finding that the transaction between Gerstenecker and the Debtor was a loan, rather than a gift as claimed by the Debtor. The Alabama Supreme Court reversed, however, on the amount of the damages award because it appeared that the trial court had erroneously read into the contract an acceleration-of-payments clause. The matter was remanded back to the trial court to calculate the amount owed based upon the accrued payments as of the date of the judgment. A final judgment was entered on September 11, 2017, in the amount of $30,300.00 (the outstanding balance on the missed loan payments from January 1, 2015 to September 11, 2017), plus 7.5% post-judgment interest (the "Judgment").1 Gerstenecker claims that the full amount owed to her is $75,644.00, and, at this time, there does not appear to be any dispute as to the amount of the debt owed to Gerstenecker.

C. The Bank Accounts

When the Debtor was young, perhaps before she graduated from high school, the Debtor and her family members opened several bank accounts (three with PNC Bank and one with BB & T). These accounts were in the name of the Debtor and her father Jack Wood (individually or as a custodian), or the Debtor and her father and sister Jennifer Wood. The ownership and control of these accounts is a puzzle. The Debtor testified that she either 1) used the funds in the accounts to pay bills, including her Alabama attorney's fees, or 2) she knew of the accounts but never used the funds. When pressed, the Debtor testified that while she did not use the bank accounts, she knew her name was on the accounts and that funds from the accounts were used to pay her bills. She also acknowledged that she could withdraw these funds and that the funds in these accounts *757could have been used to pay on the debt owed to Gerstenecker.

Jack Wood testified that he used some of the funds from these accounts to help support the Debtor. Jack Wood also testified that all the money in the accounts belonged to him.2 Both the Debtor's testimony and her father's testimony, however, revealed that these accounts were funded, at least in part, by the Debtor's income tax refunds. Notwithstanding the origin of the funds, Mr. Wood considered the funds his, based upon his financial support of the Debtor. In his mind, when he paid a bill for the Debtor, it was not familial support, but instead a loan to be repaid from the Debtor's tax refunds. Of course, neither the Debtor nor her father kept an accounting or any bookkeeping to determine if the amount "loaned" equaled the amount taken from the income tax refunds. Mr. Wood received and kept all the bank statements on these accounts.

The Court will take a moment to stress that whatever the actual pay arrangement the Debtor had with her father on the funds in these accounts, she knew of these accounts and she knew that these accounts were funded, at least in part, by her income tax refunds.

As stated above the Alabama Supreme Court issued its opinion on May 19, 2017, and the trial court issued its final judgment on September 11, 2017. A few weeks prior to the final trial court ruling, on August 21, 2017, Jack Wood closed these four accounts and withdrew the funds. The accounts contained some $57,364.91 (BB & T --$21,728.38; PNC Acct. #1 -- 6,802.45; PNC Acct. #2 -- $6,476.31; PNC Acct. # 3 -- $22,357.77). Mr. Wood was able to accomplish these closings with just the signature of himself and Jennifer Wood, the Debtor's sister. For some unexplained reason, the Debtor's signature was not required to close the accounts to which she was a named owner. Some of the funds were deposited into new accounts in the name of Jack Wood and the Debtor's sister, Jennifer Wood. Jack Wood testified that his actions were motivated by the imminent trial court final judgment and his desire to protect the funds from Gerstenecker.

It does not appear that the Debtor received any of the funds from these four accounts, despite the fact that she funded the accounts, in part, with her income tax refunds. Jack Wood testified that he neither notified the Debtor that he was closing the accounts, nor gave her any of the funds from the accounts. It was not clear, and the Court cannot find that the Debtor knew about the closings of these accounts and the disposition of the funds contained therein.

D. The Real Estate Business

The Debtor testified that her father prepared her income tax returns her whole adult life.

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Bluebook (online)
601 B.R. 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wood-kywb-2019.