United States Trustee v. Govani (In re Govani)

509 B.R. 675
CourtUnited States Bankruptcy Court, N.D. Iowa
DecidedApril 17, 2014
DocketBankruptcy No. 12-00429; Adversary No. 12-09076
StatusPublished
Cited by11 cases

This text of 509 B.R. 675 (United States Trustee v. Govani (In re Govani)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States Trustee v. Govani (In re Govani), 509 B.R. 675 (Iowa 2014).

Opinion

[678]*678TRIAL RULING

THAD J. COLLINS, Chief Judge.

This case came before the Court for trial in Cedar Rapids, Iowa on the United States Trustee’s Complaint seeking denial of Debtors’ discharge under 11 U.S.C. § 727. Janet Reasoner appeared on behalf of the U.S. Trustee. Steve Klesner appeared on behalf of Debtor/Defendants. The Court took the matter under advisement. The parties filed post-trial briefs. This is a core proceeding under 28 U.S.C. § 157(b)(2)(J).

STATEMENT OF THE CASE

The U.S. Trustee seeks a determination that Debtors are not eligible for a bankruptcy discharge under 11 U.S.C. § 727(a)(2), § 727(a)(4)(A), and § 727(a)(5). The U.S. Trustee provided evidence at trial that Debtors did not accurately report all of their prepetition assets and transfers and then signed under oath the statement of financial affairs and schedules containing incorrect information. The U.S. Trustee argues that Debtors committed these acts with the intent to hinder, delay, or defraud the estate or a creditor, and knowingly and fraudulently signed the incorrect statements and schedules. The U.S. Trustee also alleges that Debtors have not provided documentation accounting for the use of cash withdrawn from bank accounts prepetition. The U.S. Trustee argues that Debtors have failed to satisfactorily explain the use of this cash, which is now unavailable to the estate.

Debtors admit they failed to disclose assets and transfers, made errors and omissions in the signed documentation, and spent cash. However, they deny that these mistakes merit a denial of their bankruptcy discharge. Debtors deny that the transfers or omissions were done with the intent to hinder, delay, or defraud the estate or a creditor. Debtors also argue and presented evidence that the incorrect statements on the schedules and statement of financial affairs were not made knowingly and fraudulently. Finally, Debtors argue and presented evidence that they have adequately explained use of the cash. The Court finds Debtors’ evidence to be credible, and as explained below, finds that the U.S. Trustee has not proven all of the elements of 11 U.S.C. § 727(a)(2), § 727(a)(4)(A), or § 727(a)(5).

FINDINGS OF FACT

Debtors filed for Chapter 7 bankruptcy on March 9, 2012. The parties largely agree on the facts of this case, but dispute the characterization of those facts and Debtors’ intent. Mr. Govani testified for Debtors. Debtors moved to the United States from India in 1989. English is Mr. Govani’s third language. He testified that he is better at speaking English than he is reading and writing it. Mr. Govani’s difficulty with English was very evident during his testimony. Mr. Govani testified that his wife, co-debtor Mrs. Govani, has even poorer English. Mrs. Govani did not testify at trial.

From 1989 to 2008, Debtors lived in Indiana. In 2008, they moved to Iowa after they purchased the Rodeway Inn, a budget hotel, in Cedar Rapids. They retained their home in Indiana, and rented it out. Debtors both ran and lived in the hotel with their two sons. They had a very modest, if not Spartan, lifestyle in their day-to-day living. The purchase of the hotel was facilitated by a first mortgage for $1,050,000, which included a personal guarantee, and a second mortgage from the previous owners for $150,000. Mr. Govani bought the hotel to pursue the “American dream” of owning and running a business. The business did not do well from the beginning.

[679]*679During Debtors’ descent into bankruptcy, Debtors made a number of transactions to which the U.S. Trustee objects. First, Debtors frequently ran their personal credit cards at the hotel and then withdrew that money from the business account in cash to pay personal debts or expenses. Through this method, Debtors received cash advances from their credit cards. Mr. Govani testified that he did not see anything wrong with using the credit cards in this fashion. He stated that he had called the credit card company to check on this practice and the person he spoke with told him this was okay. Debtors also opened a new credit card account in order to obtain more advances at their business. Debtors opened that account on August 5, 2011. They immediately charged $5,000 at their business. They charged an additional $3,400 three days later.

Debtors also withdrew large amounts of cash for living expenses. For instance, on April 18, 2011, Debtors withdrew $10,000 from their personal bank account. Mr. Govani explained how this money was used to pay living expenses. Since Debtors lived in the hotel, they did not have a kitchen and ate out frequently. Additionally, they frequently used cash to pay for basic living expenses because Mrs. Govani did not know how to write a check.

The U.S. Trustee pointed out that Debtors also paid back a $5,000 loan to a personal friend, Ratilal Patel, and made Mr. Patel a $3,000 loan on July 5, 2011. The funds for this transaction were acquired through the process of running Debtors’ personal credit card at their business, and then withdrawing the funds from their business. All of this occurred seven to nine months before the bankruptcy filing.

By June 2011, Debtors stopped making payments on the motel mortgage. That same month, CRST — a local trucking company — made an offer to buy the motel for $1,000,000. Debtors declined the offer, because it would not be enough to pay off the two mortgages. However, the two parties continued negotiations and Debtors were hopeful they could get a price to pay all bills and make a small profit. On July 26, 2011, Debtors met with Attorney Janet Hong, a well-respected lawyer, to negotiate the sale of the motel to CRST.

The day after meeting with Attorney Janet Hong about the potential sale of the hotel, Mr. Govani purchased $16,195 of jewelry from Raj Jewels. The purchase consisted of a gold bangle, a gold bracelet, and two gold chains. At trial, Mr. Govani testified that he purchased the gold as a gift for his wife because ■ he had never previously been able to purchase a nice gift for her — and they had lived a meager existence for quite some time. He also noted his belief at the time was that the hotel would sell for a profit and he felt he could afford the purchase. Debtor originally told the U.S. Trustee that he had made the jewelry purchase as a short-term investment in gold.

Soon after that, Debtors also made additional purchases that the U.S. Trustee objects to. Debtors purchased $4,515.34 in electronics at Best Buy on August 4, 2011. This purchase consisted of a laptop, a tablet, and a home projection theater. In late August 2011, Debtors also purchased $700 in gas cards, paid approximately $2,000 for three storage units in Indiana for storage while they lived in the hotel, and paid an annual life insurance premium of $2,557.18.

On August 12, 2011, Mr. Govani sold the gold bangle purchased three weeks earlier for $8,000 cash to a hotel guest. Mr. Govani testified that he realized he needed the money in order to make the upcoming franchise payment for the business. He decided it was best if he sold the bangle [680]*680even though it made him feel bad to take a gift back from his wife.

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Cite This Page — Counsel Stack

Bluebook (online)
509 B.R. 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-trustee-v-govani-in-re-govani-ianb-2014.