Mungenast v. Darr (In re Darr)

472 B.R. 888, 2012 WL 966942, 2012 Bankr. LEXIS 1201
CourtUnited States Bankruptcy Court, E.D. Missouri
DecidedMarch 20, 2012
DocketBankruptcy No. 09-50395; Adversary No. 11-4067-705
StatusPublished
Cited by5 cases

This text of 472 B.R. 888 (Mungenast v. Darr (In re Darr)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mungenast v. Darr (In re Darr), 472 B.R. 888, 2012 WL 966942, 2012 Bankr. LEXIS 1201 (Mo. 2012).

Opinion

MEMORANDUM OPINION

CHARLES E. RENDLEN, Bankruptcy Judge.

On March 23, 2011, the Plaintiff (the “Trust”) filed a three-count First Amended Complaint (the “Complaint”) [Docket # 5], objecting to the granting of a discharge under § 727(a) of title 11 of the United States Code (the “Bankruptcy Code”1) and seeking related equitable relief.2 On June 2, 2011, the Debtor-Defendant (the “Debt- or”) filed an Answer [Docket #24]. On November 16, 2011, the matter went to trial and was taken under submission after post-trial briefing. The Court now issues this Memorandum Opinion in support of its contemporaneously entered Order of Judgment overruling the objection and granting judgment for the Debtor on all Counts.

I. FACTUAL BACKGROUND

For approximately forty years, the Debtor owned auto dealerships in St. Louis. For much of that time, he operated through “Don Darr Chevrolet, Inc. d/b/a Don Darr Pontiac” (“DDC”), of which he was the sole shareholder. On December 15, 1998, the Debtor, in his individual capacity, entered into a lease (the “Lease”) with David F. Mungenast and Barbara Mungenast, predecessors to the Trust, whereby the Debtor agreed to lease real property from the Mungenasts. DDC then operated at that leased property. Over the years, the parties allowed the Lease to continue, with adjustments to the amounts owed thereunder. As of October 2007, the base monthly rent was $41,000.00.

On April 6, 2007, DDC and Bommarito Pontiac South, Inc. (“Bommarito”) entered into an asset purchase agreement (the “APA”), whereby DDC agreed to sell its assets to Bommarito (effecting the “Sale”). At the June 15, 2007 closing on the Sale, DDC received two checks from Bommarito Pontiac-Mazda South, Inc., totaling $1,214,326.09 (the “Sale Proceeds”). The Debtor executed the APA on behalf of DDC, as President and Sole Shareholder.

Attached to the APA as Exhibit ll(j) was a non-compete agreement (the “NCA”) signed by Bommarito, DDC, and [893]*893the Debtor individually. Pursuant to the NCA, the Debtor agreed not to compete with Bommarito, and Bommarito agreed to pay a consulting fee (the “Consulting Income”). The redacted copy of the NCA entered into evidence reads: “Bommarito shall pay to Don Darr, or any corporation Don Darr directs, in writing, a consultant fee_of a month for a period of Twelve (12) months, with the first payment to be due one month after the Closing Date, for a total of Two Hundred Forty _ over term.” The evidence showed that $240,000.00 in Consulting Income was paid in monthly payments of $10,000.00 a month for 24 months, beginning the month after the closing on the Sale.

Also attached to the APA as Exhibit 4 was a phantom stock option, pursuant to which the Debtor in his personal capacity had 30 days after the Sale closing to exercise an option to purchase a non-voting 10% interest in Bommarito. In exchange for this option, the Debtor agreed not to compete with Bommarito. Within 30 days of the Sale closing, the Debtor caused to be transferred $400,094.55 of the Sale Proceeds from DDC to Bommarito, purportedly in exchange for the phantom stock. The phantom stock, however, was never issued. Instead, Bommarito carried its obligation as a note. Bommarito reported the income paid on this obligation (the “Interest Income”) each year beginning in tax year 2009 on an I.R.S. Form 1099-INT (“1099-INT”) issued to the Debtor in his individual capacity. As such, putting substance over form, the transfer of the $400,094.55 did not effect a stock purchase; it effected a loan to Bommarito for which the Debtor received interest payments. Moreover, because the Debtor treated $400,094.55 of the Sale Proceeds as his personal assets, and because both parties treated the Interest Income as being a debt owed to the Debtor in his individual capacity and not to DDC, the loan arising from the $400,094.55 transfer was a loan made by the Debtor to Bommarito. In addition to directing DDC to transfer $400,094.55 of the Sale Proceeds to Bom-marito, the Debtor also caused DDC to use Sale Proceeds to pay creditors, such as contractors, subcontractors, and government entities.

Through October 2007, the Debtor performed his obligations under the Lease. Thereafter, he defaulted. On February 22, 2008, the Trust filed a petition against the Debtor in state court for rent and possession (the “State Case”). On October 15, 2009 (the “Petition Date”), before a judgment was entered in the State Case, the Debtor filed his petition for bankruptcy relief.

The Debtor has a high school education and is 72 years old. As will be set forth in further detail herein, the Debtor fundamentally misunderstood the nature of the post-Sale income he received from Bom-marito, as well as some of his disclosure obligations under bankruptcy law. This confusion resulted in the Debtor making numerous representations that were incorrect or inconsistent.

II. COUNT I: OBJECTION TO DISCHARGE

A. Overview of Law on Objecting to Discharge

The Court grants a discharge once an individual debtor has satisfied his statutory obligations, unless circumstances warrant denial of a discharge. 11 U.S.C. § 727(a). Section 727(a) sets forth the circumstances that require denial of a discharge, most of which reflect the public policy of granting a discharge only to an honest debtor with clean hands. Because denial of a discharge is a drastic remedy, Sullivan v. Bieniek (In re Bieniek), 417 [894]*894B.R. 138, 136 (Bankr.D.Minn.2009) (internal citations omitted), § 727(a) “must be construed liberally in favor of the debtor and strictly against the objecting party with the burden of proof resting squarely upon the latter,” id. at 136-37 (citing In re Kaler v. Huynh (In re Huynh), 392 B.R. 802, 809-10 (Bankr.D.N.D.2008)). Pursuant to Federal Rule of Bankruptcy Procedure 7001(4), the filing of a § 727(a) objection commences an adversary proceeding. At the trial on the objection, the objecting party must establish its objection by a preponderance of the evidence. Floret LLC. v. Sendecky (In re Sendecky), 283 B.R. 760, 763 (8th Cir. BAP 2002).

B. Analysis of § 727(a) Objection

In the Complaint, the Trust alleges that denial of a discharge is proper under paragraphs (2), (3), (4)(A), (5), and (7) of § 727(a). The Court will address the objection as it relates to each § 727(a) paragraph, in turn below.

1. Objection as brought pursuant to § 727(a)(2).

Section 727(a)(2)(A-B) provides that the court shall grant the debtor a discharge, unless “the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred, removed, destroyed, mutilated, or concealed ... (A) property of the debtor, within one year before the date of the filing of the petition; or (B) property of the estate, after the date of the filing of the petition.” The elements “transferred, removed, destroyed, mutilated, or concealed” are disjunctive.

a. “Concealment” ground under § 727(a)(2).

Concealment by the failure to schedule the post-Sale income fi'om Bommari-to.

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Cite This Page — Counsel Stack

Bluebook (online)
472 B.R. 888, 2012 WL 966942, 2012 Bankr. LEXIS 1201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mungenast-v-darr-in-re-darr-moeb-2012.