McAfee III, in his capacity as Trustee of Marital v. Harman

United States Bankruptcy Court, N.D. Georgia·Decided March 19, 2021·No. 11-05534·Unknown

Opinion

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Vorsreact one Date: March 19, 2021 lea □ - Ut Wt by | x Og Lisa Ritchey Craig U.S. Bankruptcy Court Judge

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN THE MATTER OF: : CASE NUMBERS JOSEPH H. HARMAN, BANKRUPTCY CASE : 11-67522-LRC Debtor.

JAMES T. McAFEE, III, : ADVERSARY PROCEEDING : NO. 11-05534-LRC Plaintiff, : V. : JOSEPH H. HARMAN, IN PROCEEDINGS UNDER : CHAPTER 7 OF THE Defendant. : BANKRUPTCY CODE ORDER Before the Court is a Motion for Summary Judgment (Doc. 107) (the “Motion’”) filed by Carolyn T. McAfee, as Executor of the Estate of James T. McAfee (“Former Plaintiff’). The Motion arises in connection with an amended complaint (Doc. 113) (the “Amended

Complaint”), which seeks a determination that a debt is nondischargeable pursuant to 11 U.S.C. § 523(a) and objects to Defendant’s discharge pursuant to 11 U.S.C. § 727(a).1 This matter constitutes a core proceeding over which this Court has subject matter jurisdiction.

See 28 U.S.C. § 157(b)(2)(I), (J); § 1334. I. Background and Introduction On June 14, 2011, Defendant filed a voluntary petition under Chapter 7 of the Bankruptcy Code (the “Petition Date”). (Case No. 11-67522-LRC, Doc. 1). Former Plaintiff filed a proof of claim in Defendant’s bankruptcy case claiming a debt of

$5,369,083.73 (the “Debt”) based upon a Final Judgment entered against Defendant in the State Court of Fulton County. See Doc. 114, pp. 6-7. On September 19, 2011, Former Plaintiff filed a complaint (Doc. 1) (the “Initial Complaint”). Count 1 of the Initial Complaint objected to Defendant’s discharge under §§ 727(a)(2) and (a)(7) while Counts 2, 3, and 4 of the Initial Complaint sought a nondischargeability determination under §§

523(a)(2), (a)(4), and (a)(6) respectively. See Initial Complaint, ¶¶ 70-134. In Count 1, the Initial Complaint asserted two reasons to deny Defendant’s discharge: (1) Defendant testified at his § 341 meeting of creditors that he transferred approximately $3,300 to his wife shortly before the Petition Date to avoid the funds being garnished by Former Plaintiff (the “$3,300 Transfer”); and (2) Defendant had, in connection with a case of an insider,

committed acts referred to in §§ 727(a)(3), (a)(4), and (a)(5) and was therefore not entitled to a discharge under § 727(a)(7). See id. at ¶¶ 70-81.

1 All further references to § are to the Bankruptcy Code, title 11 of the United States Code, unless otherwise noted. With leave of the Court, Former Plaintiff filed the First Amended Complaint (Doc. 113) (the “Amended Complaint”), which reasserts the claims made in the Initial Complaint and adds additional grounds to deny Defendant’s discharge under § 727(a), including the

following: 1. On May 25, 2011, a large apartment complex in Blacksburg, Virginia, known as Terrace View, sold for approximately $53,300,000. Due to Defendant’s 100% ownership interest in J.H.H. Holdings Corporation (“JHH”) and First Equities Partners II (“FEPII”), Defendant was entitled to receive a distribution of

approximately $1.7 million from the Terrace View sale proceeds. To avoid these funds being made available to his creditors, however, Defendant caused the approximately $1.7 million to be transferred to his wife (the “Terrace View Transfer”). See Amended Complaint, at ¶¶ 22-51, 142-46. 2. Defendant was also entitled to receive a distribution of $257,256 from the Terrace

View sale proceeds due to Defendant’s limited partnership interest in New River Valley Associates, Ltd (“NRV”) (admitted to by Defendant, see Doc. 130, ¶ 14). On May 25, 2011, Defendant caused the $257,256 to be transferred to the escrow account of Shadrix Lane, P.C.—a law firm Defendant had no prior dealings with— rather than transferred to Smith Conerly, LP’s escrow account to avoid the funds

being garnished by Former Plaintiff pursuant to a garnishment action Former Plaintiff had filed against Smith Conerly, LP on April 20, 2011 (the “NRV Transfer”). See Amended Complaint, ¶¶ 52-57, 147-50. 3. On May 26, 2011, Shadrix Lane, P.C. transferred $89,202.18 of the $257,256 NVR funds to Smith Conerly, LP (the “Smith Conerly Transfer”). See id. at ¶¶ 58-59, 151; see also Doc. 130, ¶ 34 (Defendant admitting that $89,202.18 was transferred from Shadrix Lane, P.C. to Smith Conerly, LP). In Defendant’s bankruptcy schedules and

statement of financial affairs, Defendant disclosed that Shadrix Lane, P.C. was holding $168,053.87 of the NRV funds, but did not disclose the Smith Conerly Transfer or account for the $89,202.18 transferred to Smith Conerly, LP. According to Defendant, the Smith Conerly Transfer was to be used as a retainer for services to be rendered in Defendant’s bankruptcy case. However, Smith Conerly, LP’s

disclosure of compensation filed with the Court only reported that $25,000 had been received from Defendant. See id. at ¶¶ 60-65, 151. Along with the Motion, Former Plaintiff filed a brief in support (Doc. 108) (the “Brief in Support”) and a Statement of Material Facts as to Which no Genuine Issue Exists to be Tried (Doc. 108, pp. 21-29) (“Plaintiff’s SUMF”). The Motion seeks summary

judgment denying Defendant’s discharge under § 727(a) based upon the $3,300 Transfer,2

2 On September 11, 2014, Judge Murphy granted Former Plaintiff summary judgment that Defendant was not entitled to a discharge under § 727(a)(2) based upon the $3,300 Transfer Defendant made to his wife. See Doc. 145 (the “Order”). Judge Murphy did not address the other transfers in the Order. Following an appeal by Defendant, the United States District Court reversed the grant of summary judgment and reinstated the Motion on the basis that, “as a matter of law,” a debtor cannot have an “intent to hinder or delay a creditor from taking” Social Security funds that are exempt from garnishment or execution under 42 U.S.C. § 407(a). See Doc. 159. In an order denying Former Plaintiff’s subsequent motion for interlocutory appeal, the District Court clarified its order, stating that it was not remanding the case to this Court to consider whether a transfer of exempt Social Security funds could ever form the basis of a claim under § 727(a)(2). Rather, the District Court directed that, following the reversal of the Order, the “Bankruptcy Court is to consider the remainder of the Plaintiff’s motion for summary judgment (not including the § 727 and § 407 issues) and other motions and eventually try the adversary proceeding, if necessary.” Harman v. McAfee, Civ. Action No. 1-14-CV-3442-SCJ, at 3 (N.D. Ga. Sept. 2, 2015). Thereafter, the case was transferred to the oversigned upon Judge Murphy’s retirement. the NRV Transfer, the Smith Conerly Transfer, and Defendant’s failure to disclose the Smith Conerly Transfer in his bankruptcy case. On March 31, 2014, Defendant filed a response to Plaintiff’s SUMF (Doc. 130) (the “Response”) as well as a brief in opposition

to the Motion (Doc. 131) (the “Brief in Opposition”). Defendant also filed a Declaration of Joseph H. Harman (Doc. 129) (the “Declaration”). Through his Brief in Opposition, Defendant argues, among other things, that disputed material issues of fact preclude summary judgment.3 Thereafter, on March 24, 2017, Former Plaintiff filed a Motion to Substitute Party

(Doc. 173) (the “Substitution Motion”), which stated that on January 11, 2017, Former Plaintiff transferred her interest in this case to her son, J.

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McAfee III, in his capacity as Trustee of Marital v. Harman, (Ga. 2021).

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