McDermott v. Spencer (In re Spencer)

539 B.R. 777
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedOctober 13, 2015
DocketCase No. 13-34284; Adv. Pro. No. 14-03018
StatusPublished

This text of 539 B.R. 777 (McDermott v. Spencer (In re Spencer)) 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
McDermott v. Spencer (In re Spencer), 539 B.R. 777 (Ohio 2015).

Opinion

MEMORANDUM OF DECISION

John P. Gustafson, United States Bankruptcy Judge

This adversary proceeding is before the Court for decision after trial on the amended complaint [Doc. # 22] of Plaintiff Daniel M. McDermott, United States Trustee (“the UST”) alleging that Defendants’ discharge of debts should be denied under claims made pursuant to 11 U.S.C. §§ 727(a)(2)(A) (Count 1), (a)(3) (Count II), (a)(4)(a) (Count III), and (a)(5) (Count TV).

The district court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 1334(b) as a civil proceeding arising in a case under or arising under Title 11. This proceeding has been referred to this court by the district court under its general order of reference. 28 U.S.C. § 157(a); General Order 2012-7 of the United States District Court for the Northern District of Ohio. Proceedings to determine objections to discharge are core proceedings that the court may hear and decide. 28 U.S.C. § 157(b)(1), (b)(2)(J).

This Memorandum of Decision constitutes the court’s findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52, made applicable to this adversary proceeding by Fed. R. Bankr.P. 7052. Regardless of whether specifically referred to in this Memorandum of Decision, the court has examined the submitted materials, weighed the credibility of the witnesses, considered all of the' evidence, and reviewed thé entire record of the case. Based upon that review, and for the reasons discussed below, the court finds that Defendant Joseph A. Spencer’s discharge will be denied pursuant to 11 U.S.C. § 727(a)(4)(A).

FINDINGS OF FACT

Defendants Joseph A. Spencer (“Mr.Spencer”) and Dee V. Spencer (“Mrs.Spencer”) are the joint debtors in the underlying Chapter 7 case filed on October 16, 2013. Mr. Spencer, over the course of the past thirty-nine (39) years, has worked, among other positions, as a teacher, a theater set designer, an associate dean at the University of Toledo, a management consultant in the field of manufacturing, and as a Vice President and Partner at Findlay Davies, and has an advanced degree. Mrs. Spencer worked for a security company and Goodwill over the of course of their marriage, but she' has largely spent her time as a homemaker.

Mr. Spencer testified that in early April 2013, he had originally consulted with a bankruptcy attorney regarding a possible bankruptcy filing, but after several meet[780]*780ings, Mr. Spencer decided not to employ the first attorney he consulted. Mr. Spencer informed the court that one of the reasons he declined to employ the attorney had to do with the change in the amount a debtor could claim as an Ohio homestead exemption. Based on Mr. Spencer’s own research on filing for bankruptcy, he learned that Ohio’s homestead exemption, that had been capped at $21,625.00, had recently increased to $132,900.00. When this information was brought to the first attorney’s attention, Mr. Spencer testified that the attorney was unaware that any change had occurred.

Using a different bankruptcy attorney, Mr. and Mrs. Spencer (collectively, “Defendants”) filed their petition on October 16, 2013. [Case No. 13-34284, Doc. # 1]. At the same time, they filed their bankruptcy Schedules and the Statement of Financial Affairs (“SOFA”), signed under penalty of perjury (the “Original Schedules”) [Jd].

On Defendants’ Original Schedules, they listed personal property with a total value of $10,866.00. [Pl.Ex. A, p. 22], The personal property listed in Defendants’ Original Schedules consisted of the following: $1,800 in an account listed as “PNC Bank”; “[m]isc. furniture and household goods” valued at $2,000.00; “[m]isc. wearing apparel” valued at $700.00; a “TIAA Cref Retirement Annity” valued at $4,000.00; a “1994 Oldsmobile Bravada” valued at $522.00; and a “2003 Saab” valued at $1,844.00. [Id. at pp. 20-21].

On Defendants’ Original Schedule F, they scheduled $79,311.40 of unsecured nonpriority claims, mostly from credit cards and other consumer debt. [Id. at pp. 26-31]. On their SOFA, filed with their Original Schedules, Defendants checked the box indicating “none” when describing the “gifts or charitable contributions they made within one year immediately preceding the commencement of the case except ordinary and usual gifts to family members aggregating less than $200 in value per individual family member.” [Id. at 38]. Additionally, on Question 10 of their SOFA, Defendants described as “none” the “property, other than property transferred in the ordinary course of the business or financial affairs of the debtor, transferred either absolutely or as a security within two years preceding the commencement of the case.” Id. at 39.

Mr. Spencer testified at trial that their initial petition and Schedules were filled out by the bankruptcy attorney they employed to file their Chapter 7 case. Mr. and Mrs. Spencer testified that they both sat down and answered questions asked by their bankruptcy attorney as he prepared their petition. The Defendants stated that they did not fill anything out, and their attorney “wrote down the numbers.” Mr. Spencer, when asked at trial whether his answer to SOFA question 7 (regarding gifts made in the previous year), was indeed “none” when originally asked by his attorney, confirmed that his answer on that day was “none.” Mr. Spencer did not remember being asked any questions regarding Question 10 of the SOFA. He believed that his bankruptcy attorney had “paraphrased” the question, but he could not recall with specificity whether the question was read to him verbatim, or if the question had been paraphrased. “It was my recollection that we were talking about the prior year,” as opposed to the two year period of property transfers set forth in Question 10. See also, Pl.Ex. G, pp. G21-G23.

Mrs. Spencer testified that she “vaguely” remembered sitting in the attorney’s office and going over Question 7 on their SOFA, regarding gifts. As for Question 10, Mrs. Spencer recalled thinking that the question was asking about real estate or [781]*781real property. See also, PLEx. G, pp. G21-G23.

After Defendants’ petition had been filed, and prior to the § 341 meeting of creditors, attorney Ben Randall (“Attorney Randall”) contacted Patti Baumgartner-Novak (“the Chapter 7 Trustee” or “Trustee”), the Chapter 7 Trustee assigned to Defendants’ case. At the trial, the Trustee testified that Attorney Randall had reached out to her based upon his personal knowledge and “made a referral” that Defendants assets were not accurately listed on their petition, and the Trustee noted in her testimony that there was no jewelry listed on Defendants’ Original Schedules. [Pl.Ex. A, p. 20, Line 7].

In response to the “referral”, the Trustee requested that debtor’s counsel and Defendants produce more detailed schedules.

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539 B.R. 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdermott-v-spencer-in-re-spencer-ohnb-2015.