Pu v. Mitsopoulos (In re Mitsopoulos)

487 B.R. 604
CourtUnited States Bankruptcy Court, E.D. New York
DecidedMarch 8, 2013
DocketBankruptcy No. 11-41911; Adversary No. 11-1391-CEC
StatusPublished
Cited by8 cases

This text of 487 B.R. 604 (Pu v. Mitsopoulos (In re Mitsopoulos)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pu v. Mitsopoulos (In re Mitsopoulos), 487 B.R. 604 (N.Y. 2013).

Opinion

DECISION

CARLA CRAIG, Chief Judge.

Richard Pu (“Plaintiff”) brought this adversary proceeding objecting to the discharge of George Mitsopoulos (the “debt- or”) pursuant to § 727(a) of Title 11, U.S.C. (the “Bankruptcy Code”).1 This decision follows a trial held on the issue of whether the debtor’s discharge must be denied under § 727(a)(3) based upon the debtor’s failure to keep or preserve recorded information relating to his business, a pharmacy which closed during the year before he filed for bankruptcy. Because the records produced by the debtor are insufficient to allow parties in interest to ascertain the debtor’s financial condition, and because the debtor has not shown that the failure to keep or preserve records was justified, the debtor is denied a discharge pursuant to § 727(a)(3).

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b), and the Eastern District of New York standing order of reference dated August 28, 1996, as amended by order dated December 5, 2012. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(J). This decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Federal Rule of Bankruptcy Procedure 7052.

BACKGROUND

The debtor is a licensed pharmacist who owned and operated a retail pharmacy through his wholly owned corporation, Titan Pharmaceuticals & Nutrition, Inc. (“Titan”), from 1998 through June, 2010. Titan was a franchisee of Medicine Shoppe, Inc. until 2009, and thereafter operated independently under the name Health First, until it ceased doing business in June, 2010. Plaintiff represented the debtor and Titan in litigation with Medicine Shoppe from December, 2004 through June, 2006, and holds a claim for unpaid legal fees, which the debtor disputes.

The debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code on March 11, 2011. In his bankruptcy, the debtor seeks to discharge over $2 million in unsecured claims, over $1.3 million of which is listed as business debt. On July 14, 2011, Plaintiff filed the instant adversary proceeding seeking a judgment denying the debtor a discharge pursuant to § 727(a)(2)(6). A trial was held on November 29, 2012 on Plaintiffs objection to discharge based on the debtor’s failure to keep or preserve records under § 727(a)(3). At that trial, direct testimony was provided by affidavit, with witnesses available for cross-examination.

Plaintiff contends that pursuant to § 727(a)(3), the debtor is not entitled to a discharge because the debtor concealed or failed to keep or preserve business records of Titan sufficient to allow parties in interest to ascertain the debtor’s financial condition. The debtor counters that the information contained in his and Titan’s bank statements; certain documents prepared by his accountant, consisting of a transaction journal and two types of general ledgers prepared from Titan’s bank statements; and various other documents introduced at trial, provide sufficient information to allow parties in interest to ascertain his and Titan’s financial condition and business transactions. The debtor further contends that even if the records [608]*608are insufficient, his failure to keep or preserve Titan’s records is justified because his accountant approved of his record-keeping practices; because he believed that as a defunct corporation, Titan was not obligated to maintain additional records; and because certain records of Titan were disposed of by the tenant who took occupancy of Titan’s business premises after Titan turned over possession to the landlord, before he had an opportunity to retrieve them.

The principal records produced by the debtor at trial are contained in a 162-page exhibit consisting of a set of documents, dated on the last day of each month from December 2007 through February 2010, with the title “All Journal Transactions,” and two general ledgers for each quarter from December 2007 through March 2010, one labeled “General Ledger Detail,” and the other labeled “General Ledger Trial Balance.” (Ex. D-3a). The document entitled “All Journal Transactions” is a transaction journal that sets forth monthly cumulative debits and credits for general categories of transactions, including, among other items, purchases, general expenses, cash, inventory and loan balances. (Ex. D-3a at 1-33). The documents entitled “General Ledger Detail” provide three-month cumulative totals and account balances for these categories of transactions. (Ex. D-3a at 34-130). The documents entitled “General Ledger Trial Balance” provide a summary of the numbers provided in the General Ledger Detail. (Ex. D-3a at 131-162).

The debtor’s accountant, Michael Smith, testified that he used information provided by the debtor to create the journal and general ledgers, but did not independently evaluate or audit the information provided. See Affidavit of Michael Smith (“Smith Aff.”) ¶ 3. Both he and the debtor testified that the debtor provided him with can-celled checks and bank statements once a month. (Tr. 69:24-252; Affidavit of George Mitsopoulos (“Debtor Aff.”) ¶ 9). Mr. Smith then prepared handwritten journals, which were not introduced at trial, “within a couple of days” of receiving the statements and cancelled checks. (Tr. 75:13-16). Mr. Smith agreed with the characterization of the handwritten journals as similar to a “copy of Titan’s checkbook register.” (Tr. 144:6-8). Thereafter, “about once every three months,” Mr. Smith prepared the transaction journal on the computer, which he described as summaries of information contained in the handwritten journals and certain information obtained from other sources. (Tr. 75:17-20; 135:8-15). As Mr. Smith put it, “I’m taking like transactions and putting them together. So, if he issues a hundred checks for purchases of material, it all gets summarized into one total. One total gets posted to the computer.” (Tr. 135:19-22). Mr. Smith explained that the documents entitled “General Ledger Detail,” containing the same categories of transactions on a quarterly basis, posted the prior journal summary to the “accounts that they belong to,” and was created for the purpose of preparing Titan’s sales tax and income tax returns. (Tr. 139:5-7, 20-23). Finally, in the “General Ledger Trial Balance,” the numbers from the general ledger were “summarized and totaled, and it shows the opening balance before adjustments, whatever transpired in the period that was accounted for, and then ending balance in the final column.” (Tr. 141:19-24).

Mr. Smith testified that other information recorded in the journals, which could not be ascertained through the bank statements and cancelled checks, was obtained through other means. For example, the [609]*609amount of inventory in the store was communicated to him orally by the debtor, after a physical inventory count, “at least once a month” (Tr. 68:2-69:3; 131:16-25). Loan balances were ascertained by obtaining written end-of-year statements from each creditor detailing the loan activity for the year. (Tr. 128:10-129:16).

According to Mr. Smith, all original documents, including bank statements and cancelled checks, were returned to the debtor. (Tr. 143:1-20).

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Bluebook (online)
487 B.R. 604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pu-v-mitsopoulos-in-re-mitsopoulos-nyeb-2013.