Kolb v. Bentley (In re Bentley)

599 B.R. 369
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedApril 9, 2019
DocketCase No. 6:17-bk-00294-KSJ; Adversary No. 6:17-ap-00119-KSJ
StatusPublished

This text of 599 B.R. 369 (Kolb v. Bentley (In re Bentley)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kolb v. Bentley (In re Bentley), 599 B.R. 369 (Fla. 2019).

Opinion

Karen S. Jennemann, United States Bankruptcy Judge

After a two-day trial,1 the Court is convinced that the Debtor, Catherine Bentley, although elderly, filed this bankruptcy case to avoid the consequences of her intentionally fraudulent actions in concealing and later selling a valuable antique car, ignoring a court order to turn over the car, and improperly pocketing the proceeds rather than giving the monies to the proper party, Dr. Susan Kolb ("Kolb"), who had a superior interest in and right to possess the car. And as explained below, the Debtor is denied a discharge; her homestead exemption is reduced; there is a constructive trust and equitable lien on the Home for $ $ 112,767.04; and Claim 4 of Dr. Kolb is allowed a nondischargeable claim of $ 133,141.12.

Chronology of Relevant Events

To say both the facts and the legal arguments in this dispute are unique is an enormous understatement. Debtor, assisted by her nephew and lawyer, went to extraordinary lengths to hide a valuable 1930 Cord Phaeton (the "Cord"), sell it secretly, use the proceeds to pay off her home mortgage, and then file bankruptcy all to keep Kolb from getting paid on a $ 50,000 loan she made to the Debtor's son in 2007. The following is a chronology of the events.

1986: Debtor's divorce is finalized. She received a lien on the Cord as security for alimony her ex-husband owed her.2 No evidence indicates the Debtor ever recorded this lien.
1992: After the divorce, the Cord was sold at least once to Jefco Leasing Company (through its then owner Jimmy Freeman).3 This sale was the subject of litigation in Georgia. In an opinion reversing the trial court, the Georgia Court of Appeals explained the Debtor did not follow the correct *374procedure to secure her interest in the Cord, so she only had an unsecured interest in the Cord4 that was inferior to Freeman's interest.5 Nothing in the record credibly establishes the Debtor ever gained a legal interest or title to the Cord.
2005 through 2008 : The Cord was registered to Lynford Bentley, the Debtor's son ("Lynford").6
2006: Creditor Susan Kolb lent $ 50,000 to Lynford, her longtime friend.7 In the loan documents, the Cord was referenced as security.8 Although there was disputed testimony and evidence offered, the Court specifically finds Kolb's testimony true and credible that Kolb lent Lynford $ 50,000 (which he received), the Cord was intended to act as security for repayment of the loan, and the loan was not repaid before he died.9 Lynford made a few payments in 2006 and 2007, further supporting the validity of the loan.10
October and November 2009: Kolb asked Lynford to deliver the Cord to her because he stopped paying on the loan.11
December 8, 2009: Lynford died.12
December 1, 2013: Kolb filed a Complaint in the Georgia State Court against Lynford's long-time girlfriend, Belinda Horne,13 to recover the Cord or its value (the "Georgia Case").14 Debtor originally was not a party to this litigation but later was added as a defendant.15
May 30, 2014: Debtor moved the Cord from Georgia to Florida and, on May 30, 2014, signed a lease with All Aboard Storage to store the Cord in Daytona Beach, Florida.16 The *375Cord also was delivered to All Aboard Storage on May 30, 2014.17 (The Cord stayed in this storage unit until it was moved again on June 27, 2015.)
January 9, 2015: Debtor acknowledged in a deposition taken in the Georgia Case she moved the Cord from Georgia to an undisclosed storage facility in Florida.18 Debtor testified she owned the Cord.19 Debtor, knowing that Kolb was asserting a superior interest in the Cord, was evasive and refused to disclose to her where the Cord was stored.20 Debtor later told her nephew and eventual guardian, Gary Graybill, about this deposition and that she was upset Kolb was challenging her ownership of the Cord.21 Debtor had knowledge the Cord's ownership was contested by Kolb in January 2015.
June 11, 2015 : Judge Howe orally ordered in the Georgia Case an interlocutory writ of possession would issue entitling Kolb to possession of the Cord. Debtor and Horne spoke later that evening.22 Although the substance of their conversation is unknown, the circumstances and timing of the call justify an assumption that Horne told the Debtor about Judge Howe's oral ruling.
June 27, 2015: The All Aboard storage unit was accessed three times.23 Acting on behalf of Auctions America and at the direction of the Debtor, Reliable Carriers, Inc. removed the Cord from All Aboard on this day.24
July 2015 : Not knowing the location of the Cord and due to the Debtor's refusal to disclose its whereabout, Kolb filed financing statements in three places: Cherokee County, *376Georgia; Cobb County, Georgia; and Volusia County, Florida.25 These documents referenced the Cord as collateral and named Lynford as the borrower.26
July 20, 2015: Consistent with Judge Howe's earlier ruling, a writ of possession formally was entered in the Georgia Case awarding Kolb possession of the Cord "immediately."27
July 28, 2015: Debtor received pleadings filed by Kolb in Volusia County, Florida, specifically Kolb's Motion for the Entry of a Break Order.28 Although service may have been technically improper because it was not served by certified mail, the Court finds technical service is irrelevant because I find the Debtor actually received Kolb's motion by regular mail and had actual knowledge Kolb was seeking a break order to get the Cord. Of course, the Debtor had actual knowledge Kolb was seeking the Cord since her deposition in January 2015. The motion seeking a break order was just another step Kolb had to take because of Debtor's continuing refusal to provide information about the location of the Cord.
August 11, 2015: Debtor directly communicated with Auctions America to coordinate the auction sale of the Cord. Debtor untruthfully stated she owned the Cord due to her divorce decree.29 Debtor signed a consignment agreement to sell the Cord.30

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Bluebook (online)
599 B.R. 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kolb-v-bentley-in-re-bentley-flmb-2019.