Kent v. McDermott (In re Kent)

594 B.R. 863
CourtDistrict Court, E.D. Michigan
DecidedOctober 23, 2018
DocketCase Number 18-11858
StatusPublished

This text of 594 B.R. 863 (Kent v. McDermott (In re Kent)) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kent v. McDermott (In re Kent), 594 B.R. 863 (E.D. Mich. 2018).

Opinion

DAVID M. LAWSON, United States District Judge

David M. Kent, a former plastic surgeon, filed a Chapter 7 bankruptcy petition, listing among his debts certain obligations that resulted from a state court action for separate maintenance. Kent's estranged wife, Linda Kent, filed an adversary proceeding complaint alleging fraud and challenging dischargeability. After Linda's attorney was allowed to withdraw, and her own enthusiasm for the case waned, the bankruptcy court allowed the United States Trustee to substitute as the plaintiff in the adversary proceeding and contest the discharge. David Kent appeals the substitution order, contending that the bankruptcy court abused its discretion by allowing the substitution. This Court has jurisdiction over the appeal and affirms the bankruptcy court's order.

I.

David Kent filed his bankruptcy petition on November 18, 2016. In his schedule of liabilities, he disclosed more than $53 million in unsecured obligations, many of which were personal guarantees for the debts of a defunct business. He also listed substantial assets including several homes - one valued at $4 million - artwork valued at more than $30,000, and *866furniture worth more than $26,000. The Chapter 7 trustee suspected that Kent had concealed and was disposing of assets outside the bankruptcy process, and on January 4, 2017 she filed a motion for access to Kent's houses to inspect and preserve any property she found there. The bankruptcy court granted that motion.

Linda Kent filed her adversary proceeding complaint on May 26, 2017 objecting to the discharge. She alleged that the Kents were involved in a separate maintenance proceeding in state court, and that as part of the settlement David Kent had procured an agreement to have certain proceeds of an insurance policy deposited into a joint account, thereafter to be paid to him periodically as "spousal support." Linda contended that David orchestrated that arrangement to conceal those funds from his creditors in the bankruptcy case; she said those funds actually comprised marital property that was divided between the spouses under the divorce settlement agreement. The agreement also divided other property, including two homes that were to be sold, with the estimated proceeds of between $5 million and $8 million to be split between the spouses with 60% going to David and 40% to Linda. The complaint also alleged that certain valuable personal property was to be sold by a court-appointed receiver, with 50% of the proceeds going to Linda. However, Linda alleged, David had not performed under the agreement and had either taken possession of or sold and pocketed the proceeds from numerous items of marital property.

In Count I of her complaint, Linda contended that a discharge of obligations owed to her should not be granted because they are "domestic support obligation[s]," see 11 U.S.C. § 523(a)(5), and because David's conduct in failing to maintain one of the subject homes in good condition for sale breached the divorce settlement and caused that home to sell for substantially less than originally was estimated. The discounted sale, she alleged, resulted in a large deficiency from an unsatisfied second mortgage, for which Linda anticipated she would remain personally and solely liable if David was granted a bankruptcy discharge of his personal obligation on the note. In Counts II through IV of her complaint, Linda alleged that the discharge should be denied under 11 U.S.C. § 727, because David had improperly concealed or disposed of property of the estate, id. § 727(a)(2) ; withheld or destroyed records from which the value of property of the estate could have been determined, id. § 727(a)(3) ; and swore falsely in his bankruptcy schedules and other filings to conceal the true value or existence of numerous items of property of the estate that he had sold for his own benefit, id. § 727(a)(4).

David filed a motion to dismiss the adversary complaint, in which he argued that Linda lacked standing to bring the action. He reasoned that because all of his debts to her were non-dischargeable under 11 U.S.C. § 523(a)(5) (exempting from discharge obligations for "domestic support") and (a)(15) (exempting from discharge obligations other for debts "to a ... former spouse ... incurred by the debtor in ... a divorce or separation or in connection with a separation agreement [or] divorce decree"), Linda lacked standing to object to his general discharge under 11 U.S.C. § 727. The bankruptcy court found that some of the debts Linda alleged may be dischargeable despite section 523(a)(5) and (15) and denied the motion to dismiss in a ruling from the bench on August 12, 2017. David did not appeal that ruling.

On May 8, 2018, Linda Kent's attorneys in the adversary proceeding filed a motion to withdraw, which the bankruptcy court *867granted. On May 31, 2018, the United States Trustee filed a motion for leave to substitute as the plaintiff in the adversary proceeding. The bankruptcy court granted the motion after it concluded that the substitution would not result in any substantive alteration in the issues presented or any delay in the trial. The Trustee merely sought to advance some of the same claims that originally were pleaded by Linda Kent in her complaint (but not including the claims based on sections 523(a) ), on which discovery already had been concluded.

David Kent filed his notice of appeal two days later.

II.

David Kent backed up his notice of appeal with a motion for permission to appeal, covering a potential jurisdiction al challenge with belt and suspenders. The district court has appellate jurisdiction over a bankruptcy court's "final judgments, orders, and decrees," certain interlocutory orders not involved here, and other interlocutory orders when leave of court is granted. 28 U.S.C. § 158(a). Although "the finality requirement is considered in a more pragmatic and less technical way in bankruptcy cases than in other situations," In re Cyberco Holdings, Inc. ,

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Bluebook (online)
594 B.R. 863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kent-v-mcdermott-in-re-kent-mied-2018.