Souther v. Tate (In re Tate)

535 B.R. 914
CourtUnited States Bankruptcy Court, S.D. Georgia
DecidedAugust 21, 2015
DocketNUMBER 12-20238
StatusPublished

This text of 535 B.R. 914 (Souther v. Tate (In re Tate)) 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
Souther v. Tate (In re Tate), 535 B.R. 914 (Ga. 2015).

Opinion

OPINION AND ORDER GRANTING MOTION TO COMPEL TURNOVER AND ENTRY OF MONEY JUDGMENT

JOHN S. DALIS, United States Bankruptcy Judge

This matter is before me on the chapter 7. Trustee’s Amended and Re-Cast Motion to Compel Debtor Carolyn Tate to Turnover Property of the Bankruptcy Estate (“Amended Turnover Motion”). I find that the Trustee has met the burden necessary to compel turnover of property of the estate that Mrs. Tate has failed to surrender. Further, I find that based on Mrs. Tate’s evasive testimony and refusal to comply with her duty to turn over and account for property of the estate in her possession, a money judgment for the value of that property is appropriate now.

BACKGROUND

Carolyn Tate and her husband, Kipp Leshone Tate, filed for chapter 7 bankruptcy relief on February 27, 2012. (ECF No. I.)1 Schedule B of the Tates’ bankruptcy petition lists an /‘Arbitration Claim Pending vs. D.C. Metropolitan Police Dept.” as property of the estate, values the arbitration action at $280,000.00, and claims a $10,000.00 exemption in any award resulting from the arbitration action. (Sch. B of ECF No. 1, at 10.)

In June 2013, a decision on the arbitration action reinstated Mr. Tate to his former position with the D.C. Metropolitan Police and awarded him full back pay and other benefits for the period of February 18, 2006, to April 20, 2013. (Ex. A of ECF No. 192.)

[916]*916On August 20, 2013, after being prompted by his Union Attorney, Mr. Tate called the Trustee’s office to inform the Trustee that he had received a net payment from the arbitration action in late June (“Award Funds”). (ECF No. 192 ¶ 9.)

The next day, August 21, 2013, the Trustee filed a motion to compel Mr. Tate to turn over the Award Funds. (ECF No. 51.)

On September 12, 2013, I granted the Trustee’s motion (“Turnover Order”). (ECF No. 56.) However, Mr. Tate failed to comply with the Turnover Order and the Trustee initiated contempt proceedings against him shortly thereafter on October 2, 2013 (“Contempt Proceedings”). (Mot. for Contempt, ECF No. 62.)

In November 2013, the Tates turned over $19,583.00 to the Trustee prior to a hearing held on November 7, 2013, in the Contempt Proceedings. However, Mr. Tate had not provided any explanation of where the remaining Award Funds were and was not present at the hearing to testify. I continued the hearing.

At the continued hearing on January 9, 2014, Mr. Tate testified regarding the disposition of the Award Funds not surrendered to the Trustee. He stated that he was no longer in possession of any of the Award Funds, claiming he had lost a significant amount gambling and spent the rest on daily living expenses. (Jan. 9, 2014, Hr’g Tr. at 5:25-7:13, ECF No. 83.)

. On January 23, 2014, following the continued hearing, Mr. Tate and the Trustee submitted certain stipulations regarding the Award Funds. (ECF No. 76.) The stipulations included a document created by Mr. Tate purporting to show how the Award Funds were spent prior to August 21, 2013 (“First Accounting”). (Id. at Exs. D and E.) In the First Accounting, similar to his testimony, Mr. Tate claimed that all of the Award Funds not withdrawn on August 21, 2013, had been gambled away or spent on daily living expenses. (Id.) The stipulations also included copies of bank statements and cancelled checks written by Mr. and Mrs. Tate prior to this same date. (Id. at Exs. B and C.)

On January 27, 2014, presumably as a result of the information disclosed at the continued hearing and in the stipulations, the Trustee filed a motion to compel Mrs. Tate to turn over the Award Funds (“Turnover Motion”). An initial hearing was held on the Turnover Motion on March 13, 2014 (“Initial Turnover Hearing”). At the conclusion of the Initial Turnover Hearing, I took the Turnover Motion under advisement and ordered the parties to submit letter briefs. However, due to the ongoing contempt proceedings against Mr. Tate, the proceedings to compel Mrs. Tate to turn over the Award Funds were in effect stayed until June 2015.

In the meantime, the Trustee 'continued his efforts to coerce Mr. Tate’s compliance with the Turnover Order. On March 28, 2014, I found Mr. Tate in contempt for his failure to comply with the Turnover Order. (ECF No. 86.) I gave Mr. Tate twenty-eight days to purge his contempt and imposed a daily fine of $100.00 per day until he did so. (Id. at 26-27.) Additionally, I stated that if Mr. Tate did not purge his contempt within twenty-eight days, I would order him incarcerated until he did so. (Id. at 27.)

After twenty-eight days, Mr. Tate had not purged his contempt. On April 30, 2014, I entered an order requesting that the District Court for the Southern District of Georgia (“District Court”) issue an arrest warrant for Mr. Tate. (ECF No. 96.) Mr. Tate appealed my order. (ECF Nos. 97,99.)

On appeal, the District Court remanded the ease for development of a more complete record. (ECF No. 117.) I held a [917]*917continued hearing on September 11,2014, for that purpose (“Remand Hearing”).

Prior to the Remand Hearing, the Trustee received records from SunTrust Bank (“SunTrust”) in response to a subpoena (“Trustee’s Bank Records”). (Ex. A of ECF No. 85.) These records told a significantly different story from the one Mr. Tate told through his previous testimony and the First Accounting.

When confronted with the Trustee’s Bank Records at the Remand Hearing, Mr. Tate admitted under oath that the First Accounting and his previous testimony were false. (Sept. 11, 2014, Hr’g Tr. at 16:12-17:6, ECF No. 189.) However, Mr. Tate did not explain what he actually did with the money aside from claiming that it had all been used on “just daily living expenses.” (Id. at 23:25-24:1.)

Following the Remand Hearing, I found that Mr. Tate remained in contempt and I renewed my request to the District Court for the issuance of an arrest warrant. Mr. Tate was arrested and spent three nights in jail before being released with a new deadline to submit a detailed accounting of how the Award Funds had been spent.

On March 12, 2015, I transmitted a record of both Mr. and Mrs. Tate’s actions in this case to the United States Attorney for the Southern District of Georgia for the purpose of considering various criminal charges (“Criminal Referral”).

Mr. Tate submitted the detailed accounting a month-and-a-half after the deadline I set. On April 15, 2015, after reviewing the detailed accounting, I found Mr. Tate remained in contempt and entered a judgment against him in favor of the Trustee. (ECF No. 170, at 13.) I specifically found that, in addition to being late, the detailed accounting submitted did not include any supporting documentation, did not include his income during the specified period, and did not account for all of the funds in question. (Id. at 7-8.)

Following the entry of a judgment against Mr. Tate, a continued hearing on the Turnover Motion (“Continued Hearing”)was scheduled for June 8, 2015, to allow Mrs. Tate to address the evidence contained in the Trustee’s Bank Records and Mr. Tate’s admission that the First Accounting and his previous testimony were not true.

After the Continued Hearing, the Trustee filed a motion on June 10, 2015, requesting permission to amend the Turnover Motion. (ECF No. 163.) The Trustee sought to include a prayer that a judgment be entered against Mrs.

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535 B.R. 914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/souther-v-tate-in-re-tate-gasb-2015.