McDermott v. Koch (In re Koch)

564 B.R. 553
CourtUnited States Bankruptcy Court, E.D. Michigan
DecidedJanuary 13, 2017
DocketCase No.: 15-42834; Adversary Proceeding Case No.: 15-04644
StatusPublished
Cited by1 cases

This text of 564 B.R. 553 (McDermott v. Koch (In re Koch)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDermott v. Koch (In re Koch), 564 B.R. 553 (Mich. 2017).

Opinion

OPINION AND ORDER GRANTING THE UNITED STATES TRUSTEE’S OBJECTION TO DEFENDANT’S CHAPTER 7 DISCHARGE

Mark A. Randon, United States Bankruptcy Judge

I. INTRODUCTION

Candis Koch was a restaurateur and real estate investor. As a business owner, she successfully navigated several complex financial and real estate transactions. But when mounting debt necessitated an individual Chapter 7 bankruptcy, Koch failed to list all of her assets; substantially under reported her liabilities; listed “$0.00” in income and expenses; and omitted several pre-petition property transfers to her daughter. Three weeks later, during her 341 Meeting of Creditors, Koch testified that she had listed all of her assets and liabilities—when she still had not—and said that her schedules did not need to be amended—when, quite obviously, they did.

For ten months,■ the original filings stood, essentially unchanged. It was not until after the United States Trustee (“UST”) and a creditor challenged her right to a discharge—and the Court ordered her appearance at a Rule 2004 examination—that Koch obtained new counsel; amended her schedules to accurately reveal the state of her financial affairs and property transfers; and turned over approximately $9,000.00 to the Chapter 7 Trustee. As for the original omissions and false statements, Koch blames: (1) the ineptitude of her first bankruptcy attorney; [556]*556(2) her belief that her daughter “technically owned” property titled in Koch’s name; and (3) imprecise questioning by the Chapter 7 Trustee. The Court conducted a two-day trial.

Because the Court finds that Koch’s testimony was not credible, and her proffered justifications belied by her record as a sophisticated businesswoman, the Court DENIES Koch a Chapter, 7 discharge under sections 727(a)(2)(A) and 727(a)(4)(A) of the bankruptcy code.

II. JURISDICTION

The Court has subject-matter jurisdiction over this adversary proceeding under 28 U.S.C. § 1334(b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(J).1

III. FINDINGS OF FACT

A Koch’s Businesses

Koch owned several companies, including: The T.A.C. Group, Inc.; Tin Fish II, LLC; Tin Fish III, LLC; Tin Fish of Novi, LLC; and Brandon Investments, Inc. She had been in the restaurant business for at least 15 years and a licensed real estate broker for at least 35 years. Through Brandon Investments and her friend’s company, Dawn Investments, Koch flipped dozens of houses and at least one commercial building.

In 2002, Koch purchased her first Tin Fish restaurant in Fair Haven. That restaurant operated until 2011. She borrowed approximately $1.2 million from Fifth Third Bank to pay off the Fair Éaven property and finance the acquisition of furniture, fixtures, and equipment for a second Tin Fish restaurant at the Partridge Creek Mall in 2008. That restaurant operated until 2014. In 2010, while both the Fair Haven and Partridge Creek restaurants were still in operation, Koch opened a third Tin Fish restaurant at the Twelve Oaks Mall. That restaurant operated until 2013.

Koch did not always use conventional financing: she had individual investors including her brother, Robert Beller; her brother-in-law, Mark Dermanulian; and her friend, Father Paul Chateau.

Koch’s daughter, Allison, “owned” two related companies: (1) Tin Fish Management, LLC; and (2) C-Squared, LLC. Tin Fish Management operated a Tin Fish restaurant at Jefferson Beach Marina from 2013 until 2015.2 Allison, however, testified at her deposition that she did not know anything about C-Squared.3 According to Allison, the only business she had an interest in was Tin Fin Management:

Q. Do you have any interest in any business?
A. Right now? No.
Q. Okay. Have you, since you graduated from high school?
A. Have I owned any businesses since I graduated from high school?
Q. Yes.
A. Yes. Tin Fish Management.
Q. Any others?
A. No.
[557]*557Q. Have you had an interest in any companies, businesses, entities, you know, whatever you want to call them, since you graduated from high school?
A. No.
Q. As far as you know, have you been a member of any LLCs, since you graduated from high school?
A. No, just Tin Fish Management.
[[Image here]]
Q. Was C-Squared an entity owned or operated by your mom?
[[Image here]]
A. I’m not sure. I think so.

(Dep. at pp. 26-27,133).

B. Koch’s Financial Dealings with Allison

In December 2010, Koch deeded a condominium in Naples, Florida to Allison for no consideration. Allison later sold the condo for $500,000.00; her approximate net profit was $300,000.00. She used $82,000.00 of the proceeds to purchase a house on Jefferson Avenue where Koch currently resides, rent free. It is unclear how much, if any, of the proceeds went into Allison’s bank account.

Koch started regularly accessing Allison’s bank account in 2014. Allison testified at her deposition that: (1) “[her] mom can write whatever checks she wants out of [her] checkbook”; (2) “[her] mom can do whatever she wants with [her] bank account”; (3) “[she] trust[s] her [mom] a hundred percent. She [her mom] can do whatever she wants with [her] bank account.” (Dep. at pp. 35, 40). Indeed, the following exchange occurred during Allison’s deposition:

Q: So would your mom write a check out and then you would just sign it, out of your account?
A. She can, sure.
* * * '
Q. Did she ever write out checks ... from your account and just put them in front of you and ask you to sign them?
A. Nothing without my knowledge or consent.
Q. So if she wrote this check out and you signed it, what did she tell you it was for?
A. I don’t ask. I trust whatever she wants to do with my account.
[[Image here]]
A. My mom can do whatever she wants with my account, that’s fine.

(Dep. at pp. 48, 56-57). The evidence shows Koch freely wrote checks to various companies to and from Allison’s account— with no apparent benefit to Allison:

1. Brandon Investments to Allison;4
2. Allison to Brandon Investments;5
3. Allison to Dawn Investments;6
4.

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Cite This Page — Counsel Stack

Bluebook (online)
564 B.R. 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdermott-v-koch-in-re-koch-mieb-2017.