Kuhn v. Bandy (In re Bandy)

58 B.R. 359, 1986 Bankr. LEXIS 6598
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedFebruary 28, 1986
DocketBankruptcy No. 584-1050; Adv. No. 584-0219
StatusPublished

This text of 58 B.R. 359 (Kuhn v. Bandy (In re Bandy)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kuhn v. Bandy (In re Bandy), 58 B.R. 359, 1986 Bankr. LEXIS 6598 (Ohio 1986).

Opinion

FINDING AS TO OBJECTIONS TO DISCHARGE

H.F. WHITE, Bankruptcy Judge.

A trial was held on February 25, 1986 on Counts I, II, and IV of the complaint objecting to discharge of the debtor, Peter H. Bandy, by Richard I. Kuhn, trustee of the estate of Crane Howard Lithograph Company. Appearing on behalf of the trustee was David M. Hunter, and on behalf of Peter H. Bandy, James L. Bickett and Dale V. Wilson. At the close of all evidence, the plaintiff moved for admission into evidence of all his exhibits:. The court admitted into evidence the following exhibits: Plaintiff’s Exhibits 1, 4, 6, 7, 8, 9, 10, 13, 13(a), 13(b), 13(f) and 13(g). The defendant then moved for a directed verdict as to Counts II and IV which motion was granted by the court. The plaintiff presented no evidence as to Count I. Based upon the pleadings, briefs, oral testimony and exhibits admitted into [360]*360evidence at trial, the court makes the following Finding of Fact and Law.

FINDING OF FACT

1. On March 22, 1984 The Crane Howard Lithograph Company (herein “Crane Howard”) filed its petition for relief under chapter 11 of title 11 of the United States Code which was later converted to a case under chapter 7 on March 25, 1985.

2. On September 7, 1984 Peter H. Bandy filed his petition for relief under chapter 7 of title 11 of the Code.

3. Mr. Bandy owned a controlling interest in Crane Howard from 1973 until on or about February 14, 1984, initially as an 80 percent shareholder and finally as a 97 percent shareholder.

4. Crane Howard was a custom printing establishment, and among its clients were Goodyear Rubber Company, Standard Oil, Ohio Bell Telephone Company, Borden Foods, Rex Humbard Foundation, PTL Television Network, and Arocom.

5. In November, 1980 Mr. Bandy on behalf of Crane Howard entered into an agreement with Union Commerce Bank nka Huntington National Bank (herein “Bank”) which provided Crane Howard with a line of credit valued at 80 percent of its “qualified accounts receivable” plus a certain percentage of the value of its inventory. The line of credit was established on a revolving basis depending upon the current value of the accounts receivable, and it varied from approximately $1.1 to $1.3 million. The phrase “qualified accounts receivable” was defined by the Accounts Receivable and Inventory Security Agreement between the parties as meeting certain specifications, inter alia that the goods sold to create the account receivable had been shipped to the account débtor. Plaintiffs Ex. 4.

6. Crane Howard would report its accounts receivable activity, and report all cash received, daily to the Bank under the direction and supervision of Mr. Bandy.

7. The accounts receivable activity of Crane Howard was also subject to periodic review by the Bank’s auditors. The auditors would reconcile the receivables against the daily report by checking the business records of Crane Howard, and perform a test procedure as to the validity of the receivables. Crane Howard always cooperated by providing any and all records requested by the auditors. Through this periodic review, the Bank established the eligible base for the revolving line of credit.

8. In addition to its security interest in the accounts receivable, inventory, equipment and works in process of Crane Howard, the Bank also held a secured position in a certain wet press and in a 29 acre farm located in Stark County and owned by Mr. Bandy.

9. It was the practice of Crane Howard to generate computer invoices for some works in process, to retain these invoices, to report the relevant accounts to the Bank as qualified accounts receivable, then to later credit the original invoice and reissue a new invoice for the same goods which second invoice was sent to the customer at or near the time of shipment. This “pre-billing” practice had gone on for a number of years, and was necessary at times to accommodate the larger corporate customers which were slow in generating purchase orders and which sometimes asked Crane Howard to warehouse the orders.

10. The Bank was aware of this pre-bill-ing procedure and acquiesced in this practice. Robert J. Graham, Vice President of asset-based lending, business development and administration of secured borrowers for the Bank from August, 1983 until September, 1985, first became aware of this pre-billing practice in mid-September, 1983 from the Bank’s own audit. The Bank never told Mr. Bandy not to pre-bill, nor did it cut off Crane Howard’s line of credit.

11. In mid-January, 1984, Mr. Graham discussed with Mr. Bandy an Arocom invoice for $140,000 dated November 30, 1983 for pre-billed goods which appeared on the Bank’s audit report, but did not threaten to cancel the line of credit, nor did he credit the account back to the debtor.

[361]*36112. There was some evidence presented that it was an industry practice to pre-bill accounts and to hold completed orders for drop-shipment later at the customer’s request.

13. Mr. Bandy owned another business entity known as Saalfield Motors dba Alpha Press. The books of Crane Howard show a transfer of some real estate valued at $110,210 and investment vehicles valued at $94,000 to Crane Howard, and a corresponding reduction of an indebtedness of Alpha Press to Crane Howard. See Plaintiff’s Ex. 10. The relevant corporate records cover a period ending December 31, 1982. The real estate was never transferred by deed to Crane Howard. The transfer of the vehicles by the car dealership (Saalfield Motors) was made at the Bank’s request. The transfer of the vehicles appeared in the corporate minutes, but the titles to the vehicles were never transferred to Crane Howard. Mr. Bandy testified that the titles were not transferred to Crane Howard in order to save the otherwise payable 5V2 percent sales tax on the transfer. Crane Howard had physical possession of only some of the vehicles. There was no concealment; all entries were documented on the corporate books and records of the debtor.

' ISSUE

Whether the plaintiff presented sufficient evidence on Counts II and IV of the complaint seeking a denial of discharge of Peter H. Bandy pursuant to 11 U.S.C. section 727 for falsifying the accounts receivable records of Crane Howard, and for his fraudulent transfer of certain assets to Crane Howard to reduce his personal indebtedness?

DISCUSSION OF LAW

Richard I. Kuhn, trustee of the estate of The Crane Howard Lithograph Company and plaintiff, seeks a denial of discharge of Peter H. Bandy, debtor and defendant herein, for certain acts in violation of 11 U.S.C. section 727(a):

(a) The court shall grant the debtor a discharge, unless—
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(2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed—
(A) property of the debtor, within one year before the date of the filing of the petition;
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Cite This Page — Counsel Stack

Bluebook (online)
58 B.R. 359, 1986 Bankr. LEXIS 6598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuhn-v-bandy-in-re-bandy-ohnb-1986.