Tillery v. Hughes (In Re Hughes)

184 B.R. 902, 1995 Bankr. LEXIS 1019
CourtUnited States Bankruptcy Court, E.D. Louisiana
DecidedJuly 18, 1995
Docket19-10076
StatusPublished
Cited by7 cases

This text of 184 B.R. 902 (Tillery v. Hughes (In Re Hughes)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tillery v. Hughes (In Re Hughes), 184 B.R. 902, 1995 Bankr. LEXIS 1019 (La. 1995).

Opinion

MEMORANDUM OPINION

JERRY A. BROWN, Bankruptcy Judge.

This adversary proceeding was tried on March 3,1995 on the consolidated complaints of First Union National Bank of North Carolina (“First Union”) and Robert E. Tillery (“Tillery”) objecting to the debtor’s discharge under various subsections of Section 727 of the Code, 11 U.S.C. § 727. At the conclusion of the trial, the court found in favor of the debtor/defendant as to the portions of the complaints relating to Section 727(a)(5), and dismissed those portions of the complaint. The remaining grounds for discharge were taken under advisement. At issue, therefore, are the plaintiffs’ complaints objecting to the debtor’s discharge under Section 727(a)(2), (a)(3), and (a)(4). After reviewing the pleadings, the evidence at trial, and the arguments of counsel, the court makes the following determinations. 1

I. FACTS

A. Procedural background.

1. On March 2, 1994, the debtor, a practicing dentist, filed a voluntary petition under Chapter 7. He also filed a Statement of Financial Affairs and Schedule of Assets and Liabilities signed under penalty of perjury. On May 24, 1994, a Rule 2004 Examination was conducted of the debtor by First Union and Tillery, creditors and plaintiffs in this adversary proceeding. On June 6, 1994, First Union timely filed a complaint to deny debtor’s discharge. On the same day, Tillery filed a similar complaint also seeking to deny the debtor’s discharge under Section 727. On June 27,1994, the debtor filed an Amendment to Schedules amending Schedule “F” and the Summary of Schedules to include James H. Brown as a creditor holding an unsecured non-priority claim in the amount of $705,325.39. Pursuant to a minute entry dated August 10, 1994 the above-referenced adversary proceedings were consolidated for trial purposes only.

*904 B. Debtor’s history of transfers and/or concealment of property.

2. A review of the petition, the Statement of Financial Affairs and Schedule of Assets and Liabilities filed by the debtor would lead one to believe that the debtor was a self-employed dentist operating as a sole proprietor with no assets, who resided in Metairie, Louisiana in a rented residence, drove a rental car, and had no income except that from corporations which paid his living expenses. A closer examination, however, of all the facts reveals a totally different picture.

3. First Union is the successor in interest to Northwestern Bank and is a creditor of the debtor’s estate pursuant to a judgment rendered by the Superior Court for the County of Burke, State of North Carolina on September 1, 1981 in the principal amount of $39,000 together with interest thereon at the rate of 12% per annum from November 9, 1979, until paid together with a sum equal to 15% additional on both principal and interest due as attorney’s fees, and costs. (PL 8, Pre-Trial Order, Statement of Uncontested Material Fact No. 2 (hereinafter designated as “Uncontested Fact”); P.Ex. 33.)

4. Tillery is a creditor of the debtor’s estate pursuant to a judgment rendered by the 21st Judicial District Court for the State of Louisiana on December 11, 1986 in the principal amount of $15,521.43 together with interest at the rate of 12% per annum from October 27, 1986, plus costs. (Uncontested Fact No. 4; P.Ex. 2).

5. On July 27, 1979, the debtor and his former spouse transferred the property at 25602 Colonial Drive, Denham Springs to H. David Hughes, D.D.S., a Professional Corporation. Plaintiffs Exhibit 5; Testimony of H.D. Hughes at p. 129. The debtor continued to live at that address until at least eight months prior to the filing of the bankruptcy petition.

6. This professional corporation is listed in the debtor’s schedules under Item 12 of Schedule B with an interest of “0.00”. (P.Ex. 37). The debtor’s testimony with respect to the ownership of the stock in this entity is vague. (PI. 18, Transcript of March 3, 1995 (“Trans.”) at 127-128).

7. The records of the Louisiana Secretary of State reflect that at the time of filing the debtor was an officer for that entity. (P.Ex. 36). At the trial, the debtor testified that it was possible that he was still listed as an officer of that entity. (Trans, at 122).

8. This entity also owns the property described in Plaintiffs Exhibit 30 which includes the real property identified as municipal number 1310 S. Range, Denham Springs and numerous items of movable property incidental to the practice of dentistry. (P.Ex. 30; Trans, at 131-32).

9. The office building at 1310 S. Range is the location in which the debtor has provided dental services for several entities through purported consulting agreements. (Trans, at 77-82 and 132).

10. Associated Family Dentistry, Inc. is a Louisiana corporation which was incorporated by the debtor in 1985. Uncontested Fact No. 15.

11. Prior to September of 1994 the debtor was the president and agent for service of process for Associated Family Dentistry, Inc. Uncontested Fact No. 13.

12. All of the debtor’s personal living expenses including clothing, meals, entertainment, transportation, household, and tuition expenses are paid for by third parties including Associated Family Dentistry, Inc. Uncontested Fact No. 17.

13. At the time of filing, the debtor owned one share of Associated Family Dentistry, Inc. Uncontested Fact No. 14. The remaining shares as of the date of filing were owned by the debtor’s second wife, Tina Far-aehi Hughes. Id. At trial the debtor attempted to contradict this uncontested issue of material fact and denied any ownership of stock in Associated Family Dentistry, Inc. (Trans, at 152). The court does not find this testimony credible and does not accept the denial.

14. H. David Hughes, D.D.S., a Professional Corporation, is also the record owner of the real property identified by municipal address 8196 Hermitage, Denham Springs *905 which is currently occupied by the debtor’s former wife, Gloria McDuffy Hughes. (Trans, at 130; P.Ex. 4).

15. The debtor has never entered into a community property settlement with his first wife, Gloria McDuffy Hughes. (Trans, at 130-131).

16. The debtor testified that he was providing dental services to patients of Affiliated Family Dentistry, Inc. at the 1310 S. Range location pursuant to a consulting agreement with Products Marketing, Inc. and Management Company, a Cayman Islands Corporation, which agreement had been assigned to Enregle, an Arizona Trust, and then assigned again to Affiliated Family Dentist, Inc. (Trans, at 86).

17. Under the debtor’s so called consulting agreements, all of the debtor’s personal living expenses are either paid for or reimbursed by third parties. The debtor for at least the past ten years has received no reported salary or wages from any person or entity as a consequence of his providing professional dental services. (Uneontested Fact No. 11; Trans, at 77-82).

18.

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Bluebook (online)
184 B.R. 902, 1995 Bankr. LEXIS 1019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tillery-v-hughes-in-re-hughes-laeb-1995.