Moore v. Pedigo (In re Pedigo)

106 B.R. 279, 1989 Bankr. LEXIS 1703
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedSeptember 28, 1989
DocketBankruptcy No. 88-7947-8P7; Adv. Nos. 89-175, 89-134
StatusPublished

This text of 106 B.R. 279 (Moore v. Pedigo (In re Pedigo)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. Pedigo (In re Pedigo), 106 B.R. 279, 1989 Bankr. LEXIS 1703 (Fla. 1989).

Opinion

FINDINGS OF FACTS, CONCLUSIONS OF LAW AND MEMORANDUM OPINION

ALEXANDER L. PASKAY, Chief Judge.

THIS is a Chapter 7 liquidation case and the matters under consideration are two challenges to the discharge of Marion E. Pedigo (Debtor). The first is presented b.y a Complaint filed by Debbie Green Moore (Moore), as personal representative of the estate of Twanna LaShon Green, a deceased minor, and as a surviving parent of Twanna LaShon Green in Adversary Proceeding No. 89-175. In her three-count Complaint Moore contends that the Debtor should be denied a discharge pursuant to § 727(a)(2), § 727(a)(3), and § 727(a)(4) of the Bankruptcy Code. In Count I, Moore alleges that within one year of the commencement of the Bankruptcy case, the Debtor transferred several parcels of real property and assigned certain mortgages receivable with the specific intent to hinder or delay creditors. Based on the foregoing, Moore asserts that the Debtor is not entitled to a general bankruptcy discharge by virtue of § 727(a)(2) of the Bankruptcy Code.

In Count II, Moore argues that the Debt- or has concealed, destroyed, mutilated, falsified, or failed to keep books and records from which the Debtor’s financial condition or business transactions might be ascertained and, therefore, he is not entitled to a discharge by virtue of § 727(a)(3). Count III of Moore’s Complaint states that the Debtor knowingly and fraudulently made a false oath in or in connection with the [281]*281Bankruptcy case by failing to disclose the transfer of assets and by failing to disclose income. As a result, Moore maintains that the Debtor should be denied a discharge pursuant to § 727(a)(4) of the Bankruptcy Code.

The second Complaint is brought by Larry S. Hyman, the duly appointed and acting Trustee for the estate of the Debtor. In his two-count Complaint, the Trustee seeks a denial of the discharge pursuant to § 727 of the Bankruptcy Code. In Count I, the Trustee states that the Debtor has transferred real property with the intent to hinder, delay, or defraud creditors or the Trustee and that the Debtor should, therefore, be denied a discharge pursuant to § 727(a)(2) of the Bankruptcy Code. In Cóunt II of the Trustee’s Complaint, he alleges that the Debtor, under penalty of perjury, failed to disclose transfers of property on his statement of financial affairs and, therefore, made a false oath in the Bankruptcy Case. As a result, the Trustee seeks a denial of the discharge of the Debt- or pursuant to § 727(a)(4).

At the conclusion of the pretrial conference, the parties agreed that the adversary proceedings would be consolidated for trial and that the evidence presented at that time would resolve all issues raised by the Complaints of the Trustee and Moore. The facts established at the final evidentiary hearing which are relevant to the disposition of these matters are as follows:

The Debtor, who is now divorced, was married to Hazel M. Pedigo for more than twenty-five years. The Debtor during the marriage acquired several parcels of real property located in the southside of St. Petersburg. While these properties were acquired allegedly as rental property, it is the Debtor’s contention they were not very rentable, and that he did not receive any meaningful income from the properties. The Debtor at this time is a handyman and in general earns his living as an independent contractor repairing residential properties.

On January 23, 1988, the Debtor, via a quit-claim deed, conveyed all his right, title and interest in 685 30th Avenue South, St. Petersburg, Florida, to his then wife, Hazel M. Pedigo. The deed indicated on its face that it was recorded in the public records of Pinellas County on March 30, 1988 (Plaintiff’s Exh. No. 11). In addition, the Debtor deeded his right, title and interest in other real property located in St. Petersburg to his then wife. This deed stated on its face that it was executed on January 23, 1983, and was notarized on March 23, 1983. However, the notary’s stamp indicates that the notary’s commission, which is valid for four years, was to expire on October 9, 1991. .This deed, even though executed in 1983, was not recorded until March 25, 1988 (Plaintiff’s Exh. No. 3). The Debtor also executed a quitclaim deed on the same day, January 23, 1983, conveying by a quitclaim deed all his right, title and interest in certain adjoining property to his then wife. This deed, just like the previous one, was purportedly executed on January 23, 1983, and was purportedly notarized the 26th day of January, 1983, again notwithstanding the fact that the stamp of the notary indicates that the notary’s commission was to expire on October 9, 1991 (Plaintiff’s Exh. No. 4). The Debtor also executed, again on July 10, 1987, a quitclaim deed conveying to his then wife real property. This deed, like the others, is notarized, by the same notary allegedly on the 15th day of July, 1987, even though the commission of the notary would expire on October 9, 1991. It is noteworthy that the deed again was recorded on the same date as the others, March 25, 1988 (Plaintiff’s Exh. No. 7).

On November 15, 1987, the Debtor also conveyed his interest in real property by way of a quitclaim deed to his then wife. • This deed indicates on its face it was executed on November 15, 1987, but was not recorded until March 25, 1988.

The Debtor also assigned a certain mortgage note receivable due from by Denver J. Stutler and Stuart Arnold, III, on June 10, 1987, to his then wife. This assignment, unlike the other deeds, was recorded on November 10, 1988, the date the document was notarized. The Debtor assigned another mortgage note executed by Henry E. Turner and Ruby Lee Turner to his exwife. This assignment bears an exe[282]*282cution date of November 20, 1987, and was also recorded on March 25, 1988, in the public records of Pinellas County. It should be noted in this connection that, while the Débtor professed to have no legal knowledge in real estate transactions, all the documents recited earlier were prepared by him, with the exception of the one assignment of mortgage which was prepared by an attorney.

In 1985, the Debtor was the owner and operator of an apartment house which was destroyed by fire and, as a result of the fire, an infant known as Twanna LaShon Green was killed. The estate of Twanna Green sued the Debtor in the Circuit Court in and for Pinellas County and sought to recover damages. On July 19, 1988, the Circuit Court, based on a jury verdict, awarded a money judgment in the principal amount of $450,000 against the Debtor which, after being credited with a payment made by the co-Defendant, still represents an outstanding liability of $444,500.

On December 29, 1988, the Debtor filed his Voluntary Petition for Relief under Chapter 7 of the Bankruptcy Code. In connection with this Petition, the Debtor also filed his Statement of Financial Affairs. The Schedule of Liabilities filed by the Debtor indicates one secured creditor, the Debtor’s son, who allegedly obtained a mortgage on the Debtor’s residence; an unsecured obligation to Sears, Roebuck in the amount of $2,300; and the judgment rendered by the Circuit Court rendered in favor of Twanna LaShon Green, scheduled to be in the amount of $444,500. The only other claim scheduled is a contingent liability to the Bank of Boston which relates to a mortgage of one of the properties which was transferred by the Debtor to his then wife.

In response to Question No.

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106 B.R. 279, 1989 Bankr. LEXIS 1703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-pedigo-in-re-pedigo-flmb-1989.