LM Ins. Corp. v. De Caris (In re)

585 B.R. 787
CourtUnited States Bankruptcy Court, D. South Carolina
DecidedMay 23, 2018
DocketC/A No. 16–03112–DD; Adv. Pro. No. 16–80149–DD
StatusPublished
Cited by3 cases

This text of 585 B.R. 787 (LM Ins. Corp. v. De Caris (In re)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LM Ins. Corp. v. De Caris (In re), 585 B.R. 787 (S.C. 2018).

Opinion

David R. Duncan, Chief US Bankruptcy Judge

Givair Ribeiro De Caris ("Defendant") filed a voluntary petition for relief under chapter 7 of the bankruptcy code on June 23, 2016. LM Insurance Corporation's ("Plaintiff") complaint in this adversary proceeding contains two causes of action: non-dischargeability of Plaintiff's claim under 11 U.S.C. § 523(a)(2)(A) and objection to Defendant's discharge under 11 U.S.C. § 727(a)(3). Trial was held on May 15-16, 2018. Jurisdiction is premised upon *78928 U.S.C. §§ 1334 and 157(a). Venue is proper under 28 U.S.C. § 1409. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I) and 157(b)(2)(J).

FACTS

1. Defendant, the debtor in the underlying case, is an individual, a citizen of Brazil, and resident of South Carolina. Defendant moved to the United States in 2004 or 2005. He has always worked in the construction industry. Defendant's first language is Portuguese and his highest level of education is sixth grade.
2. Defendant operated a sole proprietorship in the construction industry from December 2012 through approximately March 2016.
3. Through the Workers Compensation Assigned Risk Plan, Defendant provided information and completed an Application for Insurance coverage December 28, 2012. Pursuant to the Application, all information provided by Defendant was provided under penalty of perjury and penalty of criminal prosecution.
4. Coverage for Defendant was assigned to Plaintiff through the Assigned Risk Plan. Once the coverage was assigned in the Assigned Risk Plan, Plaintiff was required to provide initial coverage, without further investigation, based on the information provided in the Application for Insurance. Plaintiff used the information provided by Defendant on the Assigned Risk Plan application to, among other things, set the premium due under the policy.
5. Defendant's Application indicated that he would operate as a sole proprietor and had no employees and no subcontractors.
6. Plaintiff issued worker's compensation insurance policy WC5-35S529957-012 ("2012/2013 Policy") to Defendant on December 29, 2012.
7. In January 2013, Defendant caused to be issued twenty-six Certificates of Insurance showing LM Insurance Corp. as worker's compensation insurer. The Certificates of Insurance were issued by Defendant's insurance agent Raymond Roe & Associates to Defendant. In discovery, Defendant produced 249 issued Certificates of Insurance. Defendant did work for and was paid by each person or entity that a Certificate of Insurance was issued to.
8. On February 18, 2014, Plaintiff performed an audit on the 2012/2013 Policy. Defendant hired a bookkeeper, Bernard Luvaga, to respond to and participate in the audit on his behalf. Luvaga provided the auditor with a copy of Defendant's purported 2013 Internal Revenue Service ("IRS") form 1040 Schedule C that reflected $80,700 in gross income. Defendant disclosed his use of cash paid subcontractors and cash paid contract labor in response to the audit. At the 2012/2013 audit, Defendant disclosed $57,702 in payments to subcontractor or contract labor to Plaintiff's auditor.
9. The 2012/2013 audit led Plaintiff to conclude that there was minimal exposure to loss, Defendant had no employees, no payroll, and did not engage in commercial work.
10. The 2013 IRS form Schedule C presented to the auditor at the audit was revised by Luvaga before it was filed with the IRS to reflect *790$4,971,264, not $80,700, in gross income.
11. Creditor issued insurance policies to Defendant in three subsequent years.
12. On February 20, 2015, Plaintiff performed an audit of the 2013/2014 policy period. In conducting the 2013/2014 policy audit, Defendant again hired his bookkeeper, Luvaga, to respond to the audit on his behalf.
13. At the 2013/2014 audit, Defendant disclosed $222,450 in payments to subcontract labor. Luvaga provided the auditor with a copy of a 2013 IRS form 1040 Schedule C showing income of $80,700. The filed 2013 IRS form Schedule C obtained in discovery reflected $4,971,264 in gross income.
14. Plaintiff sent Defendant an audit request for the 2014/2015 policy on January 26, 2016 and made phone calls to Defendant on January 26, 2016. Plaintiff sent Defendant an audit request for the 2015/2016 policy on April 13, 2016 and made phone calls to Defendant on April 3, 2016 but was unable to conduct an audit for either year because Defendant did not respond to the audit requests, did not show up at the scheduled audit, and did not provide any information.
15. Plaintiff calculated the estimated premiums owed by Defendant to be $7,124,591.98 for the period 2012-2015.
16. Debtor filed a voluntary petition for relief under chapter 7 of the bankruptcy code on June 23, 2016.
17. Debtor provided the chapter 7 Trustee and/or produced during discovery the following records:
a. 2013 IRS 1040;
b. 2014 IRS 1040;
c. 2015 IRS 1040;
d. 249 Insurance Certificates;
e. Bank statements for accounts for the twelve months prior to filing;
f. Contact information for his accountant and agent during the insurance audits;
g. IRS Transcript disclosing all 1099s issued to Debtor for 2013-2015;
h. IRS Transcript disclosing all 1099s issued from Debtor for 2013-2015.
18. According to Debtor's 2013, 2014 and 2015 tax returns, Debtor received $21,007,568.00 in gross income by supplying labor to South Carolina construction projects during the three annual tax periods prior to filing his bankruptcy petition.
19. Debtor's tax returns indicate that he paid out $4,916,572, $8,555,804, and $7,401,787 in contract labor for the years 2013, 2014, 2015.
20.

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Bluebook (online)
585 B.R. 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lm-ins-corp-v-de-caris-in-re-scb-2018.