Mac Services of Baton Rouge, Inc. v. Short (In re Short)

60 B.R. 38, 1985 Bankr. LEXIS 6676
CourtDistrict Court, M.D. Louisiana
DecidedFebruary 20, 1985
DocketBankruptcy No. 84-00134; Adv. No. 84-0099
StatusPublished

This text of 60 B.R. 38 (Mac Services of Baton Rouge, Inc. v. Short (In re Short)) is published on Counsel Stack Legal Research, covering District Court, M.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mac Services of Baton Rouge, Inc. v. Short (In re Short), 60 B.R. 38, 1985 Bankr. LEXIS 6676 (M.D. La. 1985).

Opinion

REASONS FOR DENIAL OF DISCHARGE

WESLEY W. STEEN, Bankruptcy Judge.

I. Jurisdiction of the Court

This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By order dated August 2, 1984, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to the Bankruptcy Judge for the district and ordered the Bankruptcy Judge to exercise all authority permitted by 28 U.S.C. § 157.

This is a core proceeding as defined in 28 U.S.C. § 157(b)(2)(J); pursuant to 28 U.S.C. § 157(b)(1), the Bankruptcy Judge for this district may hear and determine all core proceedings arising in a case under Title 11 referred under 28 U.S.C. § 157(a), and the Bankruptcy Judge may enter appropriate orders and judgments.

No party has objected to the exercise of jurisdiction by the Bankruptcy Judge. No party has filed a motion under 28 U.S.C. § 157(d) to withdraw all or part of the case or any proceeding thereunder, and the District Court has not done so on its own motion.

[39]*39 II. Facts

The Debtor filed this case on February 24, 1984. It is not a joint case; Mr. Short is the Debtor. The Debtor and Mrs. Short are married and live together under Louisiana’s community property regime. By virtue of that law, all their earnings for the applicable period are community property and, therefore, are owned equally by Mr. and Mrs. Short. There is no evidence or allegation that any asset relevant to this case was anything other than community property.

On November 4, 1983, the Debtor became unemployed. Prior to that date, he had been employed as a salesman for Home Life. The Debtor had also been involved as an investor with George McCauley in two corporations: M & S Equipment Rental and M & S Oilfield Service. Those businesses did not fare well, and, in 1983, the Debtor faced substantial liability on corporate debt that he had guaranteed as well as with respect to “responsible officer” penalties for employee withholding taxes due the United States. Relations between McCauley and the Debtor deteriorated dramatically during this time. The Debtor’s loss of employment in early November was untimely, indeed.

A few days after losing his job, the Debt- or borrowed $4,000.00 from a friend, Tony Hobgood, and, according to the Debtor’s schedules, secured that loan with a “mortgage” on a “house trailer.” With respect to this transaction, the evidence is slightly at variance with the schedules.1 It appears that the Debtor, Hobgood, and McCauley were each one-third lessees of land on which they placed a mobile home that they used as a fishing camp. The “mortgage” described in the schedules apparently included both the mobile home and the lease, although the schedules only referred to the mobile home. . In addition, the leasehold interest was not disclosed as an asset in the Debtor’s schedules. The Debtor testified that he gave the $4,000.00 loan proceeds to his wife and that the funds were deposited in a Telco Credit Union “checking” account (hereinafter the “Telco account”). The Debtor testified that he gave the funds to his wife for disbursement because she paid the bills and because she was better at money management than he. The Debtor also testified that he believed that the funds were deposited in the Telco account because “I think that’s the one that she pays bills out of.”

A few days later, Mrs. Short paid their attorney $1,500.00 to be held in trust for whatever future legal services he might provide.2 Mrs. Short testified that she and the Debtor did not then anticipate filing a bankruptcy petition but wanted to be prepared for whatever legal developments might occur. That testimony does not accord with the Debtor’s schedules which show in Attachment 3 a $1,500.00 payment on November 30: “Deposited in trust, $750 for bankruptcy representation, $750 to be credited on balance [due] leaving $452.50 due — actual transfer of funds from trust to operating account occurred January 11, 1984, in the amount of $1000.”

A few weeks later, about the end of November, Mr. Short received about $3,000.00 in payment of various entitlements due on his termination of employment. He testified that he gave these funds to his wife for deposit to her Telco account for payment of bills.

A few weeks later, the second mortgage on the family residence was refinanced. The proceeds were used first to pay off the existing second mortgage and the remainder (about $8,000.00) was deposited into the same Telco account. Mrs. Short testified that this refinancing was accomplished in [40]*40part to reduce the interest rate on the prior second mortgage and in part to obtain funds to have available “to settle” a dispute with McCauley and to be ready for an IRS claim for delinquent employment taxes and withholding (i.e., 100% penalty). Both the Debtor and Mrs. Short testified that these funds so obtained were actually used to pay bills. Complainant asserts that the bills chosen for payment were those of friends and others who had continuing utility to the Debtor.

As noted, the Debtor filed his voluntary petition and schedule of financial affairs on February 24, 1984. The Debtor’s schedules are seriously deficient in several respects:

(1) Several community property bank accounts are not mentioned. The Trustee discovered these accounts upon interrogation of the Debtor and recovered $10,321.06 as a result.
(2) There was no reference to Mrs. Short’s income or substantial retirement and employee benefits (which, on account of Louisiana community property law, belong one-half to Mr. Short.) Although this property might be exempt, it must be listed and the exemption claimed.
(3) There was a failure to list in the schedules preferential transfers to third party creditors within 90 days of filing.
(4) There was a failure to list in the schedules a preferential payment to the Debtor’s mother-in-law.

There is no question but that the failure to disclose assets constitutes a concealment of assets. The Court is convinced that the Debtor (as well as his wife who assisted in preparing the schedules) knew about these items and intentionally omitted them from the schedules. The only question is whether there was an “intent to hinder, delay, or defraud” a creditor or an officer of the estate; if so, then the Debtor is not entitled to a discharge under 11 U.S.C. § 727(a)(2).

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Related

Discharge
11 U.S.C. § 727(a)(2)
Procedures
28 U.S.C. § 157(a)

Cite This Page — Counsel Stack

Bluebook (online)
60 B.R. 38, 1985 Bankr. LEXIS 6676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mac-services-of-baton-rouge-inc-v-short-in-re-short-lamd-1985.