Martinez v. Sears (In re Sears)

557 B.R. 193
CourtUnited States Bankruptcy Court, D. Colorado
DecidedSeptember 8, 2016
DocketCase No. 15-18889 HRT; Adversary No. 15-1257 HRT
StatusPublished
Cited by4 cases

This text of 557 B.R. 193 (Martinez v. Sears (In re Sears)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martinez v. Sears (In re Sears), 557 B.R. 193 (Colo. 2016).

Opinion

ORDER ON ADVERSARY COMPLAINT

Howard R. Tallman, Judge, United States Bankruptcy Court

This case comes before the Court for trial of Plaintiffs Complaint for Denial of Discharge Pursuant to 11 U.S.C. §§ 727(a)(3) and (a)(5) (docket #1).

' I- FACTS

A. Stipulated Facts

The following facts were stipulated to by the parties in their joint Pretrial Statement (docket. #24) filed with the Court on February 19, 2016.

1. Richard K. Sears (the “Debtor”) filed for relief under Chapter 7 of the [195]*195Bankruptcy Code on or about April 2, 2015 (the “Petition Date”).
2. The Debtor is an individual whose dwelling house or usual place of abode, according to his Petition in this case, is at 223 Nyberg Rd., Pueblo, CO 81006-9603.
3. Plaintiff Lynn- Martinez is the duly appointed Chapter 7 Trustee in the Debtor’s bankruptcy case (“Plaintiff’ or “Trustee”).
4. The Debtor is the sole shareholder, officer and director of Apache Park Land & Cattle Company, Apache Park Livestock, Inc., Private Land Bucks and Bulls, Inc., and Rocky Mountain Romangus, Inc.
5. The Debtor is a shareholder, officer and director of Trophy Outfitters, Inc.
6. The Debtor has provided QuickBooks ™ entries for 2008 through early 2015 for the Debtor and Apache Park Livestock, Inc., Private Land Bucks and Bulls, Inc., Rocky Mountain Roman-gus, Inc. and Trophy Outfitters, Inc.

B. Evidence At Trial

At trial, the parties stipulated to the admission of all proffered exhibits: Plaintiffs Exhibits 1 through 16 and Defendant’s Exhibits A through U. Plaintiffs Exhibit 17 and Defendant’s Exhibit V were offered and admitted during the trial.

Mr. Sears has a 7th grade education and no formal accounting training. He has worked picking fruit, in dehydration factories, and as a professional musician, recording artist and studio musician. At the end of 1971, he moved to Denver. He continued to work as a musician in Denver nightclubs, and did drywall work during the day. In 1975, Debtor entered into the outfitting business which he continues to operate today. Debtor moved to Montrose, Colorado, in 1978 and bought a restaurant-lounge which he operated until 1986. In 1983, he leased land for both hunting and grazing cattle. He started by pasturing cattle owned by others but, later, started acquiring his own cattle. In 1996, he changed his selection of bulls to the Ro-magnola breed, which yielded more profit than the Angus breed. According to Mr, Sears, the Angus breed is susceptible to pulmonary artery pressure which is a problem with pasturing at high altitude. Mr. Sears began to cross Romagnola bulls with Angus cows.

Mr. Sears operated his cattle and hunting businesses beginning in 2004 through five companies: Apache Park Land & Cattle Company, Apache Park Livestock, Inc., Private Land Bucks and Bulls, Inc., Rocky Mountain Romangus, Inc. and Trophy Outfitters, Inc. (the “Companies”). Mr. Sears was the sole shareholder, office and director of the Companies, with the exception of Trophy Outfitters, in which he is a 70% shareholder. Mr. Sears testified that he made the business decisions for the Companies.

Neither Mr. Sears’ wife, Erna Sears, nor his son, Matthew Sears, were officers, shareholders or directors of any of the Companies, Other than Erna Sears performing some bookkeeping for Rocky Mountain Romangus, neither had any role in the businesses, Matthew Sears is 28 years old. He is disabled and Mr. Sears provides his support.

Mr. Sears started, managed and owned the Companies and made the financial decisions. The Companies generated a total of $9,294,429.00 in income from 2008 to 2015:

[196]*196$299,050.00 Apache Park Land & Cattle Company
$1,727,444.00 Apache Park Livestock
$272,461.00 Private Land Bucks and Bulls
$3,516,533.00 Rocky Mountain Romangus, Inc.
$3.478.941.00 Trophy Outfitters
$9,294,429.00

Exhibit 8.

A portion of the Companies’ revenues was generated by entering into cattle investment contracts, described more fully below. Thus, through the Companies, Mr. Sears attracted $6,489,750.00 from cattle contract investors between 2008 and early 2015.

$2,217,000,00 Rocky Mountain Romangus; contracts entered into 2011-2012
$330,000.00 Apache Park Livestock; contracts entered into 2008-2009
$2,382,800.00 Private Land Bucks and Bulls; contracts entered into 2009-2012 $1.559,950.00 Trophy Outfitters; contracts entered into 2013-2014
$6,489,750.00

Exhibit 10.

Mr. Sears stipulated to the following description of the cattle contracts in a 2013 plea agreement:

The defendant’s hunting business operated in Colorado and New Mexico. He solicited customers to travel to these two states to hunt big game such as elk, deer, and bear. The cost of hunting packages ranged from approximately $2,000.00 to $10,000.00. The defendant accepted payment via cash, check and credit card.
The defendant operated the livestock businesses in Colorado. He solicited various investors and would act on their behalf to purchase herds of female cows commonly known as mother cows. Once a herd was purchased, the cattle were immediately leased to the defendant. Over the course of the contract period, the defendant maintained full control of the herd and had responsibility for caring for, maintaining, and breeding the mother cows. During the contract period the defendant was entitled to the herd’s offspring which he would either sell or use to breed additional offspring. In exchange for this arrangement, the investors received an annual leaseback payment from the defendant.

Exhibit 15, exhibit 1 attached, Plea Agreement Criminal Action No. 13-cr-00180-MSK, United States of America v. Sears.

The cattle leases were for three or five-year terms. The herd owner was to receive an annual return of either ten percent of principal or a ten percent increase in his or her herd. The purchase amount was to be returned on the termination date, with an option by the herd owner to extend for another three-year contract.

At the end of 2011, extreme drought conditions occurred and it was necessary to find more pasture. The drought was followed by hard winters. These conditions caused calf losses and required additional hay purchases at high prices. The Companies attempted to grow hay, but this endeavor was unsuccessful due to inadequate irrigation water allocations. At the end of 2012, when the Companies had the highest herd number of 300 mother cows and 1200 heifers, the herd was quarantined by the Colorado Veterinarian due to trichomonia-sis, a bovine venereal disease. This disease causes spontaneous abortions. By Novem[197]

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