SunTrust Bank v. Mitchell (In re Mitchell)

496 B.R. 625
CourtUnited States Bankruptcy Court, N.D. Florida
DecidedJuly 15, 2013
DocketBankruptcy No. 12-40082-KKS; Adversary No. 12-04014-KKS
StatusPublished
Cited by5 cases

This text of 496 B.R. 625 (SunTrust Bank v. Mitchell (In re Mitchell)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SunTrust Bank v. Mitchell (In re Mitchell), 496 B.R. 625 (Fla. 2013).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DOC. 34)

KAREN K. SPECIE, Bankruptcy Judge.

Central to the bankruptcy process is the notion of transparency; in order to receive a discharge, debtors must put all of their “cards on the table.” SunTrust Bank (“SunTrust”) seeks denial of the Debtors’ discharge on the basis, inter alia, that the Debtors failed to disclose all of their assets and transfers in their Schedules and Statement of Financial Affairs and, as to the assets they disclosed, listed them at incredible values. The Court must decide whether by their conduct, based on the undisputed material facts, the Debtors left some of their “cards” off the table and essentially hidden from SunTrust, the Chapter 7 Trustee and other creditors such that this Court should deny their discharge.

BACKGROUND

The basic facts are undisputed. Ms. Mitchell has two master’s degrees in psychology and social work with an emphasis on applied behavioral analysis. She works for a private company as a behavior analyst for students in public schools. Mr. Mitchell has a bachelor’s degree and has owned a variety of businesses over the years, including a luxury car garage, two investment companies and the Blue Print Shop, LLC, a company where he is currently employed and that he owns with his wife. Over the years both Debtors signed notes or personal guarantees for commercial loans for Mr. Mitchell’s businesses. In 2008, Ms. Mitchell received an inheritance of $328,715.83 from her mother’s estate. Between 2008 and 2011 Ms. Mitchell loaned a substantial portion of her inheritance to two of her husband’s businesses. Starting in May of 2010, the Debtors were sued by several creditors on promissory notes and personal guarantees.1 At various times during that year the Debtors sold stocks and mutual funds for a total of $340,801.00. Sometime in 2011 the Debt[629]*629ors began thinking of filing bankruptcy.2 In July of 2011, within seven months prior to filing Chapter 7, Ms. Mitchell gave $16,000 of her inheritance money to the Debtors’ 25-year-old daughter. The Debtors filed a voluntary petition for Chapter 7 relief on February 16, 2012. At the time of filing, the Debtors were represented by a bankruptcy attorney with years of experience in this Court.

Along with their petition the Debtors filed their initial Schedules and Statement of Financial Affairs (“SOFA”). In their initial Schedule B, under category B.4 (household goods and furnishings, including audio, video and computer equipment), the Debtors listed the following items as having a value of $1,455:

[S]ofa, chairs, table, lamp table, wooden trunk, paintings, secretary chest, 2 side chairs, unfinished desk, rug, baskets, dining table corner cabinets, side board, 10 dining room chairs, rung, hall table, wooden box, wooden clock, rug runner, 9 prints, 2 sofas, coffee table, lamp tables, bench, lamps, old TV, speaks, DVD, turntable, sofa, chair, roll top desk, safe, TV, DVD3

The Debtors also listed in their initial Schedule B two boats: a “1995 Chaperell [sic] 17ft inoperable” and “1985 Hughes [sic] Flats boat, 90hp Yahama 2 stroke [inoperable] w/ trailer [bad tires and bearings],” and listed a value for each boat of only $100. The Debtors did not disclose Ms. Mitchell’s gift of $16,000 to the parties’ daughter seven months prior, nor did they list their sale of any stocks or mutual funds. During the § 341 meeting on March 26, 2012, the Chapter 7 Trustee (the “Trustee”) and the attorney for Sun-Trust questioned the Debtors about discrepancies in their initial Schedules and SOFA.

On April 24, 2012 SunTrust filed a motion, with the Debtors’ consent, to take the Debtors’ Rule 2004 examination. On April 25, 2012, SunTrust filed a motion seeking an extension of the deadline to file a § 727 complaint, in which it alleged that the Debtors “may have undervalued their assets, may have failed to list all their assets” and may have transferred property within one year prior to filing their Chapter 7 petition.4 In its filings SunTrust let the parties, including the Debtors, know that the Trustee was hiring an appraiser “to more properly identify and value [the Debtors’] assets.” Pursuant to a Consent Order entered May 10, 2012 the Debtors agreed to appear for their Rule 2004 examinations on May 21, 2012.5 On May 17, the Court authorized the Trustee to retain an appraiser to conduct an appraisal of the Debtors’ tangible property.6 That same day, the Debtors filed their amended Schedules B, I and J and amended SOFA.7

On their amended Schedule B the Debtors increased the value of their personal property by a total of $10,390 by making the following changes:

1. They added three items that were not originally disclosed, which they described as: “12 piece silver place setting, 12 each crockery, 10 pictures/crockery, toys,”8 which in[630]*630creased the values of their personal property by $2,640.
2. They increased the values of the two boats: the value of the Chaparral boat went from $100 to $1,500 and the Hewes flats boat increased from $100 to $5,000, increasing the values of their personal property by an additional $6,300.
3. They increased the value of the “1985 VW Rabbit inoperable” from $50 to $1,500, increasing the values of their personal property by an additional $1,450.

The amended SOFA disclosed for the first time, in answer to Question 7 (gifts made by the Debtors within one year pre-petition), the $16,000 gift to their adult daughter, but still made no mention of the sales of stocks and mutual funds.9

Notably, the Debtors live in a home listed on their Schedule A as being worth $400,000, but never listed any beds, dressers, bedroom furniture or dishes, pots, pans, or other kitchen-related items on either their original or amended Schedules.

On May 21, 2012 SunTrust took a Rule 2004 examination of both Debtors at which the Debtors produced a list of their personal property entitled “Home inventory Dec. 30, 2011 up dated [sic] 5/17/12” (“list”). Ms. Mitchell testified that she prepared this list at the direction of the Debtors’ then bankruptcy attorney in preparation for filing bankruptcy and that she updated the list on May 17, 2012.10 Mr. Mitchell testified that they updated the list by adding items as a result of a meeting with their then lawyer the week prior to the Rule 2004 exams.11 Both debtors testified that they gave the updated list to their bankruptcy lawyer with which to prepare their amended Schedule B.12 The list contains considerably more assets than were listed in either their original or amended Schedule B. The Debtors have not filed this list with the Court, nor have their Schedules ever been amended to include all items on this list not previously disclosed.

The Debtors’ 2010 Federal tax return, filed within 18 months pre-petition, contained the information about the Debtors’ sale of $340,801 in stock and mutual funds during 2010 missing from both the initial and amended SOFA. Also missing from the Debtors’ original or amended Schedules were loans payable to Ms. Mitchell by the Blue Print Shop, LLC.

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Cite This Page — Counsel Stack

Bluebook (online)
496 B.R. 625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suntrust-bank-v-mitchell-in-re-mitchell-flnb-2013.