McDermott v. Schwartz (In re Schwartz)

527 B.R. 266
CourtUnited States Bankruptcy Court, E.D. Michigan
DecidedMarch 4, 2015
DocketCase No. 12-66764; Adversary Proceeding No. 13-4622-PJS
StatusPublished
Cited by1 cases

This text of 527 B.R. 266 (McDermott v. Schwartz (In re Schwartz)) 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. Schwartz (In re Schwartz), 527 B.R. 266 (Mich. 2015).

Opinion

[268]*268Opinion Denying Chapter 7 Discharge

Phillip J. Shefferly, United States Bankruptcy Judge

Introduction

This matter is before the Court on a complaint against the Debtor, Barry Mark Schwartz (“Debtor”), objecting to his discharge under . § 727(a)(2)(A) and § 727(a)(4)(A) of the Bankruptcy Code. The Court held a trial on February 25, 2015 and took the matter under advisement. This opinion constitutes the Court’s findings of fact and conclusions of law pursuant to Fed. R. Bankr. P. 7052. After carefully weighing all of the evidence received at trial, the Court concludes, for the reasons set forth in this opinion, that the Debtor’s discharge must be denied.

Jurisdiction

This is a core proceeding under 28 U.S.C. § 157(b)(2)(J), over which the Court has jurisdiction pursuant to 28 U.S.C. § 1334(a) and § 157(a).

Procedural History

On December 10, 2012, the Debtor filed this Chapter 7 case. At the time, the Debtor was represented by attorney Andrea Cartwright (“Cartwright”). On May 31, 2013, K. Jin Lim, the Chapter 7 trustee (“Trustee”), filed a two count complaint objecting to the Debtor’s discharge. Count I of the complaint objects to discharge under § 727(a)(2)(A) of the Bankruptcy Code based on allegations that the tíebtor transferred property within one year before filing his bankruptcy petition with intent to hinder, delay or defraud a creditor. Count II of the complaint objects to discharge under § 727(a)(4)(A) of the Bankruptcy Code based on allegations that the Debtor made false oaths regarding those transfers and regarding various other assets, and that he did so knowingly and fraudulently.

The Trustee and the Debtor entered into four separate stipulations extending the time for the Debtor to answer the complaint, the last of which extended the date to answer the complaint until October 15, 2013. When the complaint was not answered by that date, the Clerk of the Court entered the Debtor’s default on October 16, 2013. Just before the final deadline to answer the complaint, the United States Trustee (“UST”) substituted in for the Trustee as plaintiff. After the default was entered, the UST moved for entry of a default judgment. The Court granted the motion on October 24, 2013. The Debtor’s discharge was denied.

Several months passed by. On February 7, 2014, the Debtor, now represented by a new attorney, filed a motion to vacate the default judgment. The UST opposed the motion. After two lengthy hearings, the Court granted the motion and vacated the default judgment on April 22, 2014. The Court then set a deadline for the Debtor to answer the complaint and created a schedule for the adversary proceeding.

Eventually, the Debtor’s new attorney moved to withdraw from representation of the Debtor. The Debtor did not oppose the motion. On December 17, 2014, the Court granted the motion and permitted the Debtor’s new attorney to withdraw. Since that date, the Debtor defended this adversary proceeding pro se.

On February 5, 2015, the Court held a final pretrial conference. During the final pretrial conference, the Court admitted into evidence exhibits 1 through 23 by stipulation of the UST and the Debtor. At the trial, the UST called only one witness: the Debtor. The Debtor called himself and two other witnesses: Cartwright and Robert Peurach, the attorney for the Trustee.

[269]*269 Facts

The Court finds the following facts based on the testimony and exhibits admitted at trial.

The Debtor is an individual in his late sixties. He has been married for 32 years to his wife, Tracy, although they do not live together. Tracy lives in Florida. The Debtor lives in Michigan.

The Debtor made his living in the scrap metal business, primarily handling industrial accounts. For many years, the Debt- or was the sole owner of Schwartz Iron & Metal, Inc. (“SIMCO”). SIMCO operated at a facility owned by Studebaker Hawk Corporation, another entity owned by the Debtor. The facility was located on Mt. Elliott in Detroit, Michigan (“Studebaker Hawk Facility”).

In 2005, SIMCO got into financial difficulties and eventually was forced to wind down its business. For the next couple of years, the Debtor transacted some scrap business through another entity that he owned, Detroit Recycling. In 2007, the Debtor formed a third entity, Schwartz Iron & Metal Company, LLC (“Schwartz LLC”), to continue some scrap business at the Studebaker Hawk Facility. Because the Debtor had been in the scrap business for so long and had so many business relationships in that industry, it was not important to his customers precisely which entity they did business with, so long as they knew they were doing business with the Debtor.

Unfortunately, Schwartz LLC’s business began to deteriorate in 2008 and continued to do so for the next couple of years. During this same time frame', the Debtor also had to refinance the Studebaker Hawk Facility. The Debtor did so with Lachine Financial on what the Debtor believes were very onerous terms.

In 2010, the Debtor formed another entity, Thibault & Co., LLC (“Thibault”), for the purpose of purchasing a 1.1 acre vacant parcel adjacent to the Studebaker Hawk Facility. This parcel had previously been a power plant for Chrysler that had since been demolished. Thibault purchased it for $2,000.00. As the business of Schwartz LLC continued to decline, the Debtor wound up having to give a deed in lieu of foreclosure to Lachine Financial for the Studebaker Hawk Facility. The Debt- or then moved the remaining scrap business of Schwartz LLC to the adjacent parcel that was now owned by Thibault.

Although Schwartz LLC continued to transact some scrap business, the Debtor still had creditor problems. During the time that it had operated, SIMCO had a $500,000.00 line of credit with Fifth Third Bank that was personally guaranteed by the Debtor. Although the precise date is not clear from the record, Fifth Third Bank apparently sold its interest in the line of credit and personal guaranty to an entity known as Cadle Rock after SIMCO got into financial difficulty. At some point, although again not clear from the record, either Fifth Third Bank or Cadle Rock filed suit and obtained a judgment against the Debtor on his personal guaranty. Beginning in 2009 and continuing thereafter, Cadle Rock pursued actions to collect the judgment from the Debtor. Meanwhile, the business of Schwartz LLC continued to spiral.

By late 2011, Schwartz LLC could no longer function as an operating entity, although customers still continued to call the Debtor for various jobs. The Debtor’s own financial condition likewise continued to deteriorate. The Debtor’s personal residence in Franklin, Michigan was now in foreclosure. The Debtor’s primary bank account during this time was at Comerica Bank. The records from that bank ac[270]*270count (exhibit 7) reveal little activity during 2012, although the Debtor did continue to receive some jobs and did continue to generate some revenue from those jobs and through commission arrangements.

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Related

McDermott v. Koch (In re Koch)
564 B.R. 553 (E.D. Michigan, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
527 B.R. 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdermott-v-schwartz-in-re-schwartz-mieb-2015.