Snyder v. Dykes (In re Dykes)

590 B.R. 904
CourtUnited States Bankruptcy Appellate Panel for the Eighth Circuit
DecidedOctober 29, 2018
DocketNo. 18-6006
StatusPublished
Cited by7 cases

This text of 590 B.R. 904 (Snyder v. Dykes (In re Dykes)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Snyder v. Dykes (In re Dykes), 590 B.R. 904 (bap8 2018).

Opinion

SCHERMER, Bankruptcy Judge

Daryll Christopher Dykes and Sharon Luster Dykes (Debtors) appeal the bankruptcy court's1 judgment denying their discharge. We have jurisdiction over this appeal from the final judgment of the bankruptcy court. See 28 U.S.C. § 158(b). For the reasons that follow, we affirm.

ISSUE

The issue on appeal is whether the bankruptcy court properly denied the Debtors' discharge under Bankruptcy Code § 727(a). We hold that it did.

BACKGROUND

On July 26, 2016, the Debtors filed a petition for relief under Chapter 7 of the United States Bankruptcy Code. Debtor Daryll Dykes (Mr. Dykes) is trained as a physician and a surgeon, and holds a law degree and a Ph.D. Sharon Dykes (Mrs. Dykes)2 is also trained as a physician and surgeon. As of the petition date, or shortly prior to that time, the Debtors were practicing medicine, either independently or *908through professional corporations. Mr. Dykes served as a Robert Wood Johnson Foundation Health Policy Fellow in Washington, D.C.

The Debtors' bankruptcy schedules showed debts exceeding $5 million. Schedule I lists monthly income of approximately $9,700.00 for Mr. Dykes and approximately $6,900.00 for Mrs. Dykes.

The Debtors filed their bankruptcy cases due to debts and judgments owed to creditors including judgments against the Debtors in excess of $4,146,000.00 arising from the construction of their home. The Debtors lost their home to a foreclosure in 2011. Mr. Dykes testified that after the Debtors' banker was convicted of mortgage fraud, including for the mortgage loan on the Debtors' home, the bank refused to restructure the Debtors' loan, and a balloon payment became due. The Debtors were not able to make the balloon payment or obtain alternate financing to avoid the foreclosure. The Debtors were forced to move out of their foreclosed home in 2012.

When the Debtors moved out of their home in 2012, they moved their personal property into three large 30-foot rented storage bins. The Debtors stopped paying the rent for storage, and with an amount owing of approximately $10,000.00, the property in the bins was forfeited and sold pre-petition. Mr. Dykes testified that the property in the storage bins was worth hundreds of thousands of dollars. There has not been an accounting for the property in the storage bins.

Because of the foreclosure of their home, Mrs. Dykes rented a house in Rosemount, Minnesota, and Mr. Dykes resided at an apartment in Minneapolis. They both moved later to a house in Minneapolis where Mrs. Dykes resided at the time of trial. At the time of trial, Mr. Dykes spent most of his time in Washington, D.C., where his fellowship was located.

Mr. Dykes testified that the Debtors' home loan ultimately led to their bankruptcy filing. After years of litigation between the bank and the Debtors, the bank obtained a judgment against the Debtors and levied the interest of Mr. Dykes in his medical practice. According to Mr. Dykes, because of this, in 2012 his income dropped from well over a million dollars a year to "essentially zero." Although Mr. Dykes began to rebuild his medical practice, events in 2014 and 2016 caused the practice to suffer.

Between November 2008 and March 2012, Mr. Dykes purchased dozens of watches from Bellusso Jewelers in Las Vegas, Nevada and ultimately accrued a debt of $390,700.00 to the jeweler. Mr. Dykes testified that after an initial period during which he and Ezra Bekhor of Bellusso Jewelers followed a formal process for the purchase of watches, which included paperwork for each sale, the process became less formal, and the jeweler shipped to Mr. Dykes multiple watches worth tens of thousands of dollars by Federal Express without paperwork from the jeweler. Mr. Dykes testified that he would return unwanted watches to the jeweler the same way. According to Mr. Dykes, he once received a time piece worth approximately $107,000.00 without paperwork, payment, or signature, and he returned the timepiece the same way. By the end of his relationship with the jeweler, Mr. Dykes had little to no paperwork concerning many of the watches still in his possession.

According to Mr. Dykes, the watches he collected were not as valuable without *909their original boxes or paperwork. At trial Mr. Dykes no longer had the boxes and paperwork for watches he purchased.

The documentary evidence that was preserved showed that the Debtors took possession from the jeweler of watches ranging in cost from $4,350.00 to $107,950.00, diamond earrings, and a Kuwait platinum bridal collection ring with a 3.15 carat diamond and two side stones. The ring was valued at approximately $68,000.00.

In October 2011, Mr. Dykes executed a confession of judgment in the amount of $390,700.00 in favor of Mr. Bekhor, the jeweler. In February 2013, Mr. Dykes returned to Mr. Bekhor (by giving them to the jeweler's attorney): (1) 27 watches; and (2) the Kwait platinum diamond ring. Mr. Dykes provided a list of the watches and the diamond ring that were returned. The Debtors did not provide evidence of the value attributed to the returned items or the balance owed on the confession of judgment after these items were returned.3 The watches on the list of returns did not match the watches listed as paid for in invoices from the jeweler that were submitted at trial.

The United States Trustee for Region 12 (U.S. Trustee) filed a timely complaint objecting to the Debtors' discharge. The complaint included counts for denial of the Debtors' discharge under several subsections of Bankruptcy Code § 727, including § 727(a)(3). Section 727(a)(3) was one of the bases upon which the bankruptcy court denied the Debtors' discharge.

STANDARD OF REVIEW

We review a bankruptcy court's findings of fact for clear error and conclusions of law de novo . Korte v. Internal Revenue Serv. (In re Korte) , 262 B.R. 464, 469 (8th Cir. BAP 2001) (citations omitted). We give due regard to the bankruptcy court's opportunity to judge the credibility of witnesses. Home Service Oil Co. v. Cecil (In re Cecil) , 542 B.R. 447, 451 (8th Cir. BAP 2015).

DISCUSSION

Denial of a discharge is a harsh remedy. Accordingly, the provisions under § 727 of the Bankruptcy Code"are strictly construed in favor of the debtor." See Korte, 262 B.R. at 471 (quoting Fox v. Schmit (In re Schmit) , 71 B.R. 587, 589-90 (Bankr. D. Minn.1987) ). "Importantly, however, § 727 was also included to prevent the debtor's abuse of the Bankruptcy Code."

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Cite This Page — Counsel Stack

Bluebook (online)
590 B.R. 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snyder-v-dykes-in-re-dykes-bap8-2018.