Robin Singh Educational Services, Inc. v. McCarthy (McCarthy)

488 B.R. 814, 2013 Bankr. LEXIS 1175
CourtBankruptcy Appellate Panel of the First Circuit
DecidedMarch 22, 2013
DocketBAP No. MB 12-059; Bankruptcy No. 10-11788-JNF; Adversary No. 10-01309-JNF
StatusPublished
Cited by28 cases

This text of 488 B.R. 814 (Robin Singh Educational Services, Inc. v. McCarthy (McCarthy)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robin Singh Educational Services, Inc. v. McCarthy (McCarthy), 488 B.R. 814, 2013 Bankr. LEXIS 1175 (bap1 2013).

Opinion

GODOY, Bankruptcy Judge.

Thomas P. McCarthy (the “Debtor”) appeals from the bankruptcy court’s. order denying his discharge pursuant to, §§ 727(a)(2)(B), and 727(a)(8), 727(a)(4).1 The Debtor admits that he omitted assets from his schedules, but contends that he did not have the requisite fraudulent intent because he suffers from attention deficit hyperactivity disorder (“ADHD”), which impairs his working memory. For the reasons set forth below, we AFFIRM.

BACKGROUND

I. The Procedural Background

A. The Bankruptcy Proceedings

In February 2010, the Debtor filed a chapter 13 petition, his schedules (the “Initial Schedules”), and a statement of financial affairs. In his Schedule B, the Debtor disclosed that he had only one bank account, a checking account at NESC Federal Credit Union (“NESC”) having a balance of $218.00 on the petition date. He did not identify any other bank accounts, nor did he list any accounts receivable. In his Schedule I, he listed income from his employment at Harvard University Department of Education, and self-employment income of $250.00 per month. In his statement of financial affairs, the Debtor stated in response to Question 18 that he had not operated a business in the last five years.

Thereafter, the Debtor converted his case to chapter 7. On May 13, 2010, the Debtor filed amended schedules (the “First Amended Schedules”), and the chapter 7 trustee held a § 341 meeting on June 15, 2010.

On September 14, 2010, Robin Singh Educational Services, Inc., d/b/a TestMas-ters (“TestMasters”), a creditor holding a [819]*819state court judgment,2 conducted a Rule 2004 examination of the Debtor pursuant to a bankruptcy court approved stipulation between the parties. The agreed order required the Debtor to produce all bank records and other bank documents from January 1, 2006, through the date of the request. The Debtor produced only four bank statements — three statements for the NESC account and one statement for a Bank of America checking account. The Debtor testified at his Rule 2004 examina,tion that “I shred everything like that,” referring to his bank statements and other financial records. As the Debtor failed to produce all of the requested records, Test-Masters then subpoenaed the Debtor’s bank records from NESC, Sovereign Bank, and Bank of America. Shortly thereafter, on September 22, 2010, the Debtor filed his second set of amended schedules (the “Second Amended Schedules”).

In November 2010, TestMasters commenced an adversary proceeding: (1) seeking a determination that the state court judgment has a binding, preclusive effect and should be excepted from discharge pursuant to §§ 523(a)(4) and (a)(6); and (2) objecting to the Debtor’s discharge pursuant to §§ 727(a)(2)(B), (a)(3), and (a)(4). In his answer to the amended complaint, the Debtor admitted that he had omitted assets from the Initial Schedules and had failed to produce certain documents, but denied that he acted either knowingly and fraudulently, or with the intent to hinder, delay or defraud any creditor. Discovery ensued, and TestMas-ters took a deposition of the Debtor on November 10, 2011. On November 22, 2011, the Debtor filed his third set of amended schedules (the “Third Amended Schedules”).

The bankruptcy court conducted a two-day trial with respect to the § 727 claims, at which two witnesses testified and numerous exhibits were introduced into evidence. At the close of TestMasters’ evidence, the Debtor moved for judgment as a matter of law, which ■ the bankruptcy court denied. At the conclusion of the trial, the bankruptcy court took the matter under advisement and ordered the parties to file post-trial briefs by July 16, 2012.

On July 12, 2012, more than six weeks after the trial was completed, and four days before the deadline for filing post-trial briefs, the Debtor filed an emergency motion to supplement the trial record to include the transcripts of the Debtor’s September 14, 2010 Rule 2004 examination and his deposition taken on November 10, 2011, in the adversary proceeding (collectively, the “deposition transcripts”). Test-Masters opposed the motion to supplement. On July 16, 2012, the bankruptcy court denied the motion to supplement “for the reasons stated in [TestMasters’] opposition.” Thereafter, on July 27, 2012, the Debtor filed his fourth set of amended schedules (the “Fourth Amended Schedules”).

On August 27, 2012, the bankruptcy court entered judgment against the Debtor denying his discharge under §§ 727(a)(2)(B), 727(a)(3), and 727(a)(4).3 [820]*820In its accompanying memorandum, the bankruptcy court found, among other things, that the Debtor intentionally and fraudulently omitted and undervalued assets on his schedules. In reaching its decision, the bankruptcy court considered the expert testimony regarding the Debt- or’s ADHD diagnosis, but found that the Debtor was not so impaired that he could not have the requisite fraudulent intent. This appeal followed.

II. The Evidence in the Bankruptcy Court

The Debtor is well-educated, holding a bachelor’s degree, and two master’s degrees. At the time of the trial, he was employed at the Harvard Graduate School of Education, where he performed data analysis and provided general technological support through maintenance of the school’s website.

A. Omitted and Undervalued Assets

The bankruptcy court found that the Debtor omitted and/or undervalued numerous assets in the Initial Schedules, that there were numerous discrepancies in his testimony regarding such assets, and that he failed to timely disclose the omitted assets in his subsequent amended schedules. The Debtor does not dispute the bankruptcy court’s description of his assets, the various schedule amendments, and the chronology of events related thereto.

(1) Undervalued NESC account

In his Initial Schedules, the Debtor disclosed only one bank account, an account at NESC having a balance of $218.00 on the petition date. The evidence showed, however, that the balance in the account for the month of February 2010 (when the petition was filed) was never less than $1,828.95. Although the Debtor testified at his Rule 2004 examination in September 2010, a portion of which was read into the trial record, that he believed he had withdrawn monies in person from the NESC account some time between February 1, 2010, and the petition date in order to pay his rent, the NESC bank statement did not show any such withdrawals. Furthermore, the Debtor contradicted his deposition testimony at trial, stating that he never withdrew any monies from the NESC account during that time period.

In addition, the Debtor testified at trial, and the evidence showed, that on March 8, 2010, he wrote a check for $1,700.00 payable to his father, Paul McCarthy, drawn on the NESC account. The bankruptcy court found that, because the Debtor made no deposits into the NESC account between the petition date and March 8, 2010, when he wrote the $1,700.00 check, Test-Masters had established that the account contained more than $218.00 at the time of the bankruptcy filing. It also found that the Debtor had failed to disclose approximately $1,600.00 in the NESC account on the Initial Schedules.

(2) Undisclosed Sovereign Bank Account

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Cite This Page — Counsel Stack

Bluebook (online)
488 B.R. 814, 2013 Bankr. LEXIS 1175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robin-singh-educational-services-inc-v-mccarthy-mccarthy-bap1-2013.