Res-Ga Bay St. Louis, LLC v. Brooks (In re Brooks)

548 B.R. 585, 2016 Bankr. LEXIS 1010
CourtUnited States Bankruptcy Court, S.D. Georgia
DecidedMarch 30, 2016
DocketCase Number 13-10860; Adversary Proceeding Number 14-01016
StatusPublished
Cited by2 cases

This text of 548 B.R. 585 (Res-Ga Bay St. Louis, LLC v. Brooks (In re Brooks)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Res-Ga Bay St. Louis, LLC v. Brooks (In re Brooks), 548 B.R. 585, 2016 Bankr. LEXIS 1010 (Ga. 2016).

Opinion

OPINION AND ORDER

SUSAN D. BARRETT, CHIEF UNITED STATES BANKRUPTCY JUDGE

Before the Court are cross motions for summary judgment. Plaintiffs RES-GA BAY ST. LOUIS, LLC (“RES-GA”) and RREF II WBC ACQUISITIONS, LLC (“RREF”) seek summary judgment deny[587]*587ing William Jeffrey Brooks (“Debtor”) a dischai’ge pursuant to 11 U.S.C. § 727 (a)(2), (3), (4) and (5). Debtor seeks summary judgment dismissing the complaint contending Plaintiffs’ lack of standing to pursue this § 727(a) action. This is a core matter under 28 U.S.C. § 157(b)(2)(J) and the Court has jurisdiction pursuant to 28 U.S.C. § 1334. For the following reasons the cross summary judgment motions are DENIED.

UNDISPUTED FACTS

The claims of RREF and RES-GA arise out Debtor’s purported personal guaranty of construction loans. As to RREF, Debt- or and Christopher G. Mohr (“Mohr”) each own 50% of Brooks Mohr Builders, LLC (“BMB”), which obtained fourteen (14) loans from Branch Banking and Trust Company (“BB & T”) for the construction of single family houses. Brooks’ Dep. Tr. 9:17-59:8, June 30, 2015. Debtor and Mohr signed personal guaranties in connection with these fourteen (14) loans. See Claim Nos. 32-45, as amended. Debtor, through his company, WJ Brooks, Inc., also obtained two additional loans from BB & T which he personally guaranteed. See Brooks’ Dep. Tr. 9:17-59:10, June 30, 2015; Claim Nos. 46-3 and 47-3, as amended). RREF is the successor-in-interest to BB & T on these sixteen (16) loans.

After payment default, BB & T sued the borrower and guarantors in state court on the fourteen (14) loans. Pursuant to a pre-petition settlement agreement reached between BB & T, BMB, Debtor and Mohr, the original fourteen (14) notes and related loan documents were modified to, inter alia, reamortize the debt and extend the loan term. Brooks’ Dep. 129:1-12. As successor in interest to BB & T, RREF filed proofs of claims for its debt in Debt- or’s bankruptcy case. See Claim Nos. 32-47.

As to RES-GA, Debtor held an ownership interest in another construction company, BCM Development, LLC (“BCM”), which held an ownership interest in Pendergrass Development, LLC (“Pendergrass”). RES-GA filed an $11.7 million dollar1 proof of claim arising from a guaranty Debtor purportedly signed for a loan to Pendergrass from Alpha Bank & Trust (“Alpha”). RES-GA is the successor-in-interest to Alpha.

Plaintiffs, RREF and RES-GA, filed this § 727 adversary proceeding alleging Debtor is not entitled to a discharge under the following facts:

1. Debtor filed a chapter 11 bankruptcy petition on May 14,2013;

2. With Debtor’s consent the case was converted to a chapter 7 in May 2014. Dckt. No. 241, Chapter 7 Case No. 13-10860;

3. In April 2013, Debtor transferred $133,000.00 (“B & A Transfer”) to his then girlfriend, Rhonda Duggan (“Duggan”), purportedly to establish a new business, B & A Flowers, LLC. (“B & A Flowers”). Brooks’ Rule 2004 Tr. 96:15-96:17; 110:12-110:14, November 13, 2013; Brooks’ Dep. Tr. 86:15-86:17, June 30, 2015, Ex. 14. In his original bankruptcy schedules, Debtor made no disclosure of this transfer and he amended his schedules only after Plaintiffs uncovered the transfer during discovery. Dckt. Nos. 1 and 26, Chapter 7 Case No. 13-10860;

4. The B & A Transfer substantially depleted Debtor’s cash assets, taking his bank account balance from almost $150,000.00 before the transfer, to roughly $3,000.00 in the weeks preceding the peti[588]*588tion date. Brooks’ Rule 2004 Tr. 110:8— 110:11, November 13,2013; Ex. 14;

5. Debtor also transferred an additional $5,000.00 to B & A Flowers, a business purportedly owned by Duggan, four months before the petition date. Brooks’ Rule 2004 Tr. 95:17-96:14, November 13, 2013;

6. Debtor is the purported sole manager of B & A Flowers and runs the day to day operations, including ordering the inventory and filing papers with B & A Flowers’ accountant. Duggan Rule 2004 Tr. 13:3-18:22, 27:7-18 and 28:1-9; Brooks’ Rule 2004 Tr. 32:4-32:12, November 13, 2013; Brooks’ Dep. Tr. 72:13-72:23, June 30, 2015. Duggan and Debtor testified Debt- or maintains control over how much he gets paid by B & A Flowers and how many of his personal bills are paid by B & A Flowers. I dr,

7. Debtor’s Amended Disclosure Statement filed in this case provides that Duggan “has agreed to transfer 100% of the stock in B & A Flowers to Debtor.” Dckt. No. 161, Chapter 7 Case No. 13-10860. Subsequently, .both Duggan and Debtor testified that there was no plan to transfer ownership of B & A Flowers to Debtor. Duggan 2004 Tr. 30:3-12, June 29, 2015; Brooks Dep. Tr. 84-85, June 30, 2015;

8. Duggan has not invested any money into B & A Flowers. Duggan 2004 Tr, 40:8-14, June 29, 2015. Duggan has not received a salary or distribution from B & A Flowers, but B & A Flowers has paid for the maintenance of her car and its upkeep, such as tires, brakes, oil changes and insurance. Duggan 2004 18:23-25-19:1-3;

9. Debtor also admits he lent $5,000.00 to Flower Garden, a business owned by Duggan’s mother, two months before he filed his bankruptcy petition. Brooks’ Rule 2004 Tr. 102:19-102:24, November 13, 2013; Ex. 13. The loan was not repaid by Flower Garden until June 2013, post-petition. Brooks’ Rule 2004 Tr. 103:7-103:8, November 13, 2013. In his bankruptcy schedules, Debtor failed to disclose this loan. Dckt. Nos. 1 and 471, Chapter 7 Case No. 13-1086;

10. Debtor also made transfers to insiders. Specifically, Debtor admits transferring $13,870.00 to his business partner, Mohr, paid in installments of $4,870.00 and $9,000.00 in January 2013. Brooks’ Rule 2004 Tr. 92:10-94:7, November 13, 2013, Ex. 12;

11. As the founder and previous officer of the Georgia Deer Association, Inc., Debtor purportedly loaned himself $27,500.00 from the organization without any written agreement. Brooks’ Rule 2004 Tr. 94:8-95:16, November 13, 2013; Brooks Dep. Tr. 122:6-123:6, June 30, 2015. Debtor purportedly repaid Georgia Deer Association, Inc. this same amount in January 2013, four months before the petition date. Brooks’ Rule 2004 Tr. 94:8-95:16, November 13, 2013, Ex. 12. Debtor failed to disclose his lifetime membership in the Georgia Deer Association, Inc. on his schedules. Brooks’ Rule 2004 Tr. 68:18-68:21, November 13,2013, Ex. 12;

12. Debtor failed to disclose Semper Fi Whitetails, LLC, a company owned by Debtor to facilitate deer breeding. Brooks’ Rule 2004 Tr. 240:5-243:4, November 13, 2013. Three months prior to filing his petition, Debtor transferred $30,000.00 to Extreme Whitetails, LLC to pay for the artificial insemination of a deer owned by Debtor. Brooks’ Rule 2004 Tr. 103:18-104:5, November 13,2013, Ex. 13;

13. Plaintiffs contend Debtor is unable to explain the source and full disposition of two large deposits; one $160,575.00 made in December 2012 and the other made in January 2013 in the amount of $259,362.00. Brooks’ Rule 2004 Tr. 85:4-88:24, Novem[589]*589ber 18, 2013, Exs. 11-12.

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548 B.R. 585, 2016 Bankr. LEXIS 1010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/res-ga-bay-st-louis-llc-v-brooks-in-re-brooks-gasb-2016.