United States Trustee v. Gregg (In re Gregg)

510 B.R. 614
CourtUnited States Bankruptcy Court, W.D. Missouri
DecidedMay 15, 2014
DocketBankruptcy No. 14-60394; Adversary Nos. 13-6060, 13-6065
StatusPublished
Cited by3 cases

This text of 510 B.R. 614 (United States Trustee v. Gregg (In re Gregg)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Missouri 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. Gregg (In re Gregg), 510 B.R. 614 (Mo. 2014).

Opinion

MEMORANDUM OPINION AND ORDER DIRECTING JUDGMENT IN FAVOR OF PLAINTIFFS AND DENYING THE DEBTOR’S DISCHARGE PURSUANT TO 11 U.S.C. § 727

ARTHUR B. FEDERMAN, Chief Judge.

The United States Trustee (the “UST”) and Regions Bank, N.A., filed Complaints seeking denial of Debtor Richard Thomas Gregg’s discharge pursuant to 11 U.S.C. § 727. For the reasons announced at the conclusion of the trial held on May 7, 2014, as supplemented by those that follow, judgment will be entered in favor of the Plaintiffs, the UST and Regions Bank, N.A., on Counts Six through Sixteen of the Complaints and the Debtor’s discharge will be denied pursuant to § 727 of the Bankruptcy Code.

At the outset, as the Plaintiffs point out, the Debtor did not file an Answer to the Complaints in either of the two adversary proceedings here. Because the Debtor failed to deny the factual allegations alleged in the Complaints, those facts are deemed admitted.1 In addition, as discussed more fully in prior Orders in these proceedings,2 the Debtor has refused to answer questions in these adversary proceedings based on an assertion of his Fifth Amendment privilege, and he did not personally appear at the trial. As a result, while the discharge cannot be denied solely based on a bankruptcy debtor’s assertion of his Fifth Amendment rights, the Court may draw adverse inferences from his refusal to testify in this civil action.3 Similarly, as the UST points out, the Fifth Amendment does not generally apply to documents prepared in the course of nor[618]*618mal business activities,4 unless the person asserting the privilege shows that the production of specific documents will be incriminating.5 Despite having extensive business dealings, the Debtor has produced almost no records at all, and has not shown that production of any particular document requested by the Chapter 7 Trustee would incriminate him. Thus, the Court may draw adverse inferences from the Debtor’s refusal to produce documents and business records requested by the Chapter 7 Trustee. Finally, although the Debtor did not refute any of the Plaintiffs’ evidence with evidence of his own at trial, the Plaintiffs in fact produced substantial evidence at trial supporting the denial of the Debtor’s discharge.

GENERAL BACKGROUND

Prior to filing his bankruptcy petition, the Debtor was involved in many business activities in and around southern Missouri. Among other things, he had controlling interests in two banks and several real estate holding companies. On February 28, 2013, the Debtor was indicted by a federal grand jury in Springfield, Missouri.6 The Indictment contains seventeen counts of alleged criminal violations arising from his banking and business dealings, including bank fraud, wire fraud, and money laundering. One of the counts in the Indictment (Count 17) alleges that the Debtor committed bankruptcy fraud and made an intentionally false statement in the bankruptcy case of 1717 Market Place LLC,7 a company controlled by the Debt- or. The criminal case is currently set for trial on July 14, 2014.

Meanwhile, shortly after being indicted, the Debtor filed this individual bankruptcy case as a Chapter 11 on March 19, 2013. The Debtor filed his Schedules and Statement of Financial Affairs on May 14, 2013, both of which were signed by the Debtor and contained declarations under penalty of perjury that the Debtor had read the documents and that they were “true and correct to the best of [his] knowledge, information, and belief.”8

On the motion of the UST, and with the Debtor’s consent, the case was converted [619]*619to Chapter 7 on May 22, 2013. The Debt- or has declined to answer questions asked by the Chapter 7 Trustee and creditors regarding his financial affairs at three scheduled § 341 meetings, each time asserting his Fifth Amendment privilege against self-incrimination. He has also failed to produce documents related to his and his companies’ financial affairs requested in the normal course by the Chapter 7 Trustee.

The UST filed this adversary proceeding on November 21, 2013, and filed an Amended Complaint on December 27, 2013. Among the sixteen counts pled by the UST against the Debtor here, Counts One through Five allege false oaths and concealment of assets in connection with the 1717 Market Place bankruptcy case. Counts Six through Eleven allege false statements and fraudulent transfers in this, the Debtor’s individual bankruptcy case. Count Twelve alleges a fraudulent post-petition transfer in the Debtor’s individual case, and Counts Thirteen through Sixteen allege that the Debtor failed to explain a loss of assets, failed to obey a court order, withheld documents from the Chapter 7 Trustee, and failed to preserve records, all in connection with this, his individual case.

Regions Bank filed a separate adversary proceeding to deny the Debtor’s discharge in this bankruptcy case. Regions Bank’s Complaint contains factual allegations similar to those in the UST’s Amended Complaint and the counts pled by Regions mirror those in the UST’s Amended Complaint.

In each of the two adversary proceedings, the Debtor requested that these proceedings be stayed pending the outcome of the criminal case. This Court denied those requests. The Debtor appealed those Orders to the United States District Court for the Western District of Missouri, and sought a stay pending appeal, which this Court also denied. The appeals remain pending, although now appear to be moot due to this ruling on the merits.

This Court conducted a trial on May 7, 2014. Although the Debtor’s attorney appeared at the trial, the Debtor did not personally appear.

At the trial, the bulk of the evidence was presented through the testimony of Fred C. Moon, the Chapter 7 Trustee in the Debtor’s individual case, as well as documentary evidence and judicial notice of court files and documents.

DENIAL OF DISCHARGE UNDER 11 U.S.C. § 727(a)

Section 727(a) provides, in relevant part, that the court shall grant the debtor a discharge, unless—

(2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed—
(A) property of the debtor, within one year before the date of the filing of the petition; or
(B) property of the estate, after the date of the filing of the petition....
(3) the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case;
(4) the debtor knowingly and fraudulently, in or in connection with the case—

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Cite This Page — Counsel Stack

Bluebook (online)
510 B.R. 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-trustee-v-gregg-in-re-gregg-mowb-2014.