Mack Financial Corp. v. Rowe (In re Rowe)

145 B.R. 556, 1992 Bankr. LEXIS 1530
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedSeptember 15, 1992
DocketBankruptcy No. 91-3357; Related No. 91-31977
StatusPublished
Cited by3 cases

This text of 145 B.R. 556 (Mack Financial Corp. v. Rowe (In re Rowe)) 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
Mack Financial Corp. v. Rowe (In re Rowe), 145 B.R. 556, 1992 Bankr. LEXIS 1530 (Ohio 1992).

Opinion

MEMORANDUM OPINION AND ORDER

RICHARD L. SPEER, Bankruptcy Judge.

This cause came before the Court on Plaintiff’s Complaint Objecting to the Discharge of Debts pursuant to 11 U.S.C. 727(a)(2)(A). A trial on the merits was held on August 11, 1992 in which the parties were afforded the opportunity to present evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the arguments of counsel, stipulations, exhibits, relevant statutory and case law, as well as the entire record. Based upon that review, and for the following reasons, the Court finds that Plaintiff is granted judgment against the Defendant, Richard Rowe, in the amount of Sixty One Thousand Five Hundred Dollars ($61,500.00); and that pursuant to 11 U.S.C. 727(a)(2)(A), this judgment is Nondischargeable.

STIPULATIONS

The parties have entered into the following stipulations:

1. Defendant is the owner and operator of R & R Truck Agency.
2. Plaintiff is a secured creditor by virtue of notes and security interests obtained from Defendants upon their purchase of numerous vehicles financed by Plaintiff.
3. On June 28, 1991, Plaintiff repossessed two of Defendant’s vehicles. These vehicles were in reasonable condition, ordinary wear and tear excepted.
4.Defendant surrendered to Plaintiff the following trucks on the accompanying dates:
One (1) 19Y8 Mack Tractor July 14, 1991
One (1) 1984 Mack Truck & R July 15, 1991
Two (2) 1985 MHS Trucks Mack July 15, 1991
Three (3) Mack Trucks July 16, 1991
One (1) other Truck July 20, 1991
5. The trucks specifically listed in 114 above were not roadworthy and had been stripped of various parts, all contrary to the terms of the security agreement.
6. The sole issue before the Court is whether Defendant had the requisite intent to hinder, delay, or defraud the Plaintiff when he removed and concealed or permitted the removal and concealment of property owned by Defendant within one year before the date of filing of his petition, as required under 11 U.S.C. 727(a)(2)(A).

FACTS

The basic facts are not in dispute. Defendant purchased seven (7) trucks from Flag City Truck & Equipment (hereafter “Flag City”) as follows:

One (1) 1989 Mack 36" Sleeper March 14, 1989
One (1) 1978 Mack Fifth Wheel May 14, 1990
Five (5) 1985 Mack Fifth Wheels May 14, 1990

[558]*558Karla Rowe, Defendant’s spouse, is a guarantor for the March 14, 1989 purchase from Flag City only. Lima Mack Sales & Service (hereafter “Lima Mack”) sold Defendant a 1984 Mack Tractor on June 2, 1989. Both Flag City and Lima Mack are secured creditors whose agreements were assigned to Plaintiff. According to the security agreements, Defendant warranted to keep all trucks in good condition, excepting “reasonable wear and tear”. Further, the security agreements attach to all accessions. Defendant is aware of both provisions under the security agreements.

Defendant’s business began to fail during January, 1991. Although operational, the business was generating little, if any, revenue. To maintain day-to-day operations, Defendant permitted his drivers to interchange parts between trucks. This involved the removal of parts from one truck and the attachment of that part to another truck (also referred to as cannibalizing). Batteries were removed from some trucks as were tires. The turbo was removed from one truck and placed in another truck. Defendant did advise his employees to place a notice on the truck that the turbo was missing. An employee replaced the seat, stacks and chrome wheels on one truck with his own items. Defendant admits advising his employee that he could remove those items belonging to him before Plaintiff took possession. Upon repossession, those items purchased by Defendant’s employee and those items initially removed from the truck were both missing from the truck.

On May 16, 1991, Defendant filed a Petition for Relief under Chapter 7 of the United States Bankruptcy Code. During June, 1991 and July, 1991, Defendant voluntarily surrendered the fleet purchased from Lima Mick and Flag City to Plaintiff.

Defendant disavows any personal involvement regarding the removal, destruction or hiding of trucks. During this time he was in Canada. Before his departure, Defendant did advise his staff to prepare all trucks for repossession by July 13,1991. Although Defendant was not pleased with the manner in which his trucks were repossessed, he professes no animosity toward Plaintiff.

During July, 1991, Plaintiff authorized Jeff Fremont, sales manager for Flag City, to retrieve three of Defendant’s trucks from Caledonia, Ohio. All three vehicles were immovable so each was towed to Toledo. The defects to the three vehicles as observed by Mr. Fremont are as follows: the turbo was removed from one truck; several tires were removed from all trucks; several tires were deflated on all trucks; several tires had been replaced on all trucks; and a clutch cable was broken on one truck. The truck with the missing turbo included a notice that the turbo had been removed.

Henry Helton, owner of Flag City, assisted in the repossession of Defendant’s trucks. Mr. Helton noted that in addition to those defects observed by Mr. Fremont, four batteries had been removed from one truck. Since the truck required all four batteries to start, the truck was immovable.

Upon repossession, Flag City repaired all eight trucks. The total costs of repair, excepting aesthetic or cosmetic changes, was Thirty Nine Thousand Two Hundred Seventy Seven and 16/100 Dollars ($39,-277.16). Flag City then sold all eight trucks to Acme Leasing and Lima Mack for One Hundred Thirty Thousand Dollars ($130,800.00). Flag City garnered a profit of Nineteen Thousand Five Hundred Twenty Two and 84/100 Dollars ($19,522.84).

At the time of repossession, the total balance owed to Plaintiff on Defendant’s loan was One Hundred Sixty Thousand Five Hundred Dollars ($160,500.00). Plaintiff was able to recoup Seventy Two Thousand Dollars ($72,000.00) through the sale of the vehicles to Flag City. Adjustments and other recourse total approximately Twenty Seven Thousand Dollars ($27,-000.00) and therefore the deficiency owed to Plaintiff totals Sixty One Thousand Five Hundred Dollars ($61,500.00).

[559]*559LAW

Section 727(a)(2)(A) provides:

(a) The Court shall grant the debtor a discharge unless—
(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 [11 USCS § 101 et seq.], has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed—

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Bluebook (online)
145 B.R. 556, 1992 Bankr. LEXIS 1530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-financial-corp-v-rowe-in-re-rowe-ohnb-1992.