Jahn v. Hughes (In re Hughes)

490 B.R. 784
CourtUnited States Bankruptcy Court, E.D. Tennessee
DecidedApril 12, 2013
DocketBankruptcy No. 12-12364; Adversary No. 12-1086
StatusPublished
Cited by3 cases

This text of 490 B.R. 784 (Jahn v. Hughes (In re Hughes)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jahn v. Hughes (In re Hughes), 490 B.R. 784 (Tenn. 2013).

Opinion

[786]*786MEMORANDUM

SHELLEY D. RUCKER, Bankruptcy Judge.

In this adversary proceeding the Trustee, Richard P. Jahn, Jr. (“Plaintiff’ or “Trustee”) asks this court to deny the discharge of the debtors, Darrell Eugene Hughes and Lori Lynn Hughes (“Debtors”), pursuant to 11 U.S.C. § 727(a)(4)(A). The Debtors deny that they engaged in conduct prohibited by § 727(a)(4)(A) and assert that they are entitled to a discharge pursuant to Chapter 7 of the Bankruptcy Code. After a review of the testimony, exhibits and relevant case law, the court finds that the Debtors’ discharges should be denied.

These are the court’s findings of fact and conclusions of law pursuant to Fed. R. Bankr.P. 7052.

I. Facts

The Debtors filed their Chapter 7 petition for bankruptcy on May 8, 2012. Trial Exhibit 1 Petition, Statement of Financial Affairs and Schedules. Mr. Hughes is not employed. He was disabled following a heart attack he suffered in 2007. Mrs. Hughes also has medical problems. She suffered a job loss shortly after her husband’s heart attack, but she is now employed. The Hugheses also took in Mr. Hughes’ ailing mother in 2010. She passed away in 2011 leaving the family with her funeral expenses. The Debtors have four children, one of whom still lives at home with his parents. See Trial Testimony of Lori Lynn Hughes (“Mrs. Hughes’ Testimony”), April 9, 2013 at 9:40-9:47 a.m., 10:15 a.m.; Trial Testimony of Darrell Eugene Hughes (“Mr. Hughes’ Testimony”), April 9, 2013, at 10:21-10:32 a.m.

After suffering his heart attack, Mr. Hughes joined a class action products liability lawsuit, filed in Colorado, against the manufacturer of Avandia, a drug used for treating diabetes (“Class Action Lawsuit”). The plaintiffs in the Class Action Lawsuit contended that the drug caused heart attacks in patients who took it. In March of 2012, Mr. Hughes received a partial settlement check related to the Class Action Lawsuit in the amount of $43,806.89 (“Settlement Payment”). See Trial Exhibit 8, Trial Exhibit 10, Partial Transcript of 341 Meeting Held on June 15, 2012 (“341 Meeting Transcript”). The Settlement Payment represented his initial settlement payment after the deduction of attorneys’ fees. Mr. Hughes’ Testimony, April 9, 2013 at 10:35-10:36 a.m.; Trial Exhibit 10, 341 Meeting Transcript. Mrs. Hughes testified that they made plans about how to use this money when they learned it was coming. She stated that paying “old, old bills” “wasn’t what we were thinking of doing with this money.” Mrs. Hughes’ Testimony, April 9, 2013 at 9:55 a.m. She testified that “every bill was past due” and that they were desperate. Mrs. Hughes’ Testimony, April 9, 2013 at 9:46-9:47 a.m.; 9:50-9:55 a.m. The Debtors had no checking account and were concerned about garnishment of anything they might put into an account. Id. at 9:48 a.m. For these reasons, they took the settlement check to a check cashing company where they paid a fee of over $1500 to obtain the settlement in cash — stacks of one hundred dollar bills. Id. Mrs. Hughes testified that she was “terrified” having that much cash. Id. This sum of money was more money than the Debtors had made together in any one of the three years preceding their bankruptcy filing. Trial Exhibit 1 at 8, Statement of Financial Affairs, Question 1.

Over the next eight days in March, the Debtors spent the entire Settlement Payment. Exhibit 8 presented at trial shows how $38,975 of the Settlement Payment [787]*787was spent. Trial Exhibit 8. They paid $10,000 as a down payment on a 2011 used car, made a gift of $3500 to two of their children to make up for missed Christmases, birthdays and graduations. Mrs. Hughes’ Testimony, April 9, 2013 at 9:50-9:51 a.m. They repaid an aunt $3000 for her help with Mr. Hughes’ mother, and they repaid a brother with cash and the transfer of a truck. They paid off title pawn companies that held their cars, their wedding rings and all of their electronic household goods. See Trial Exhibit 8; Trial Exhibit 10, 341 Meeting Transcript. They surrendered a 2006 automobile that had been having mechanical problems. They moved from their mold infested mobile home to a new apartment and bought new furniture, as well as some luxuries like a large television set and a gaming system. After several years of financial deprivation — even desperation — the Settlement Payment was providing them with a fresh start. That fresh start was cut short when the owners of the mobile home they had surrendered threatened to sue them for the balance due on the mobile home. In response to that threat, the Debtors sought bankruptcy relief. See Mrs. Hughes’ Testimony, April 9, 2013 at 9:52-9:54 a.m.; Trial Exhibit 8; Trial Exhibit 10, 341 Meeting Transcript.

The Debtors initially approached their attorney about a Chapter 13 proceeding but were advised that a Chapter 7 might be the appropriate route given that Mrs. Hughes had very little income and that Mr. Hughes was on disability. Mrs. Hughes’ Testimony, April 9, 2013 at 10:02 a.m. They worked with a paralegal and completed their petition, statement of financial affairs and schedules. The list of creditors was obtained from a credit report and supplemented by the Debtors. Id. at 10:10 a.m. That list was 17 pages long and listed over $65,000 in unsecured debts which included automobile deficiencies, credit cards, and, as was to be expected given the Debtors’ medical problems, numerous medical bills. See Trial Exhibit 1, pp. 24^1. Approximately eight weeks after receiving the Settlement Payment, the Debtors filed Chapter 7 bankruptcy and Richard P. Jahn, Jr. was appointed as their trustee.

The statements which are the basis of the Trustee’s complaint are contained in the Statement of Financial Affairs (“SOFA”) and the Schedules. The petition is signed under penalty of perjury. Trial Exhibit 1 at 3. The Debtors signed that they had obtained and read the notice required by 11 U.S.C. § 342(b). Id. That notice is to be provided to every debtor at their first meeting with a debtor’s attorney who falls within the definition of a debt relief agency. The attorney is required to give the debtors a notice that “a person who knowingly and fraudulently conceals assets or makes a false oath or statement under penalty of perjury in connection with a case under this title shall be subject to fine, imprisonment, or both.” 11 U.S.C. § 342(b)(2)(A).

The SOFA is also signed by both Debtors under penalty of perjury. Trial Exhibit 1 at 14. The Debtors swore that they read the answers and that they were “true and correct.” Contrary to this representation, there are several answers that are neither true nor correct.

SOFA Question 2 asks for a disclosure of all other income the Debtors received from sources other than employment or the operation of a business. The Settlement Payment is not listed there. When Mr. Hughes was asked at trial why he had omitted the Settlement Payment, he stated that he did not think it was income. Mr. Hughes’ Testimony, April 9, 2013 at 10:35-10:37 a.m. He did not disclose this payment to his attorney or the paralegal as[788]*788sembling his SOFA or schedules.

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Cite This Page — Counsel Stack

Bluebook (online)
490 B.R. 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jahn-v-hughes-in-re-hughes-tneb-2013.