United States v. Perea (In re Perea)

89 B.R. 128, 5 Bankr. Ct. Rep. 274, 1988 Bankr. LEXIS 1087
CourtDistrict Court, D. Colorado
DecidedJuly 18, 1988
DocketBankruptcy No. 87-B-01255 E; Adv. No. 87 J 0546
StatusPublished
Cited by2 cases

This text of 89 B.R. 128 (United States v. Perea (In re Perea)) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Perea (In re Perea), 89 B.R. 128, 5 Bankr. Ct. Rep. 274, 1988 Bankr. LEXIS 1087 (D. Colo. 1988).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HAROLD L. MAI, Bankruptcy Judge.

THIS MATTER having come on for trial on a Complaint to Determine Discharge: [129]*129Dahil M. Goss, Assistant United States Attorney, appearing for plaintiff; Jeffrey Anderson of Johnson and Anderson, Little-ton, Colorado, appearing for debtors/defendants.

The court having considered the parties’ stipulation as to certain facts, the testimony and exhibits received at trial, the closing arguments submitted by briefs, and having-heard argument of counsel and being fully advised, does hereby find and conclude as follows:

FINDINGS OF FACT

1. Plaintiff in this case is the Small Business Administration (SBA), an agency of the United States of America, which guarantees small business loans obtained through commercial lending institutions.

2. The First National Bank of Alamosa (the Bank) is a commercial lending institution in Alamosa, Colorado.

3. Defendants in this case, Stanley E. Perea (Mr. Perea) and Glenda R. Perea (Mrs. Perea), acting as President and Secretary of Perea and Associates, P.C., applied for and obtained an SBA guaranteed loan in the amount of $380,000 from the Bank.

4. Mr. Perea, has been a Certified Public Accountant since 1978-79. He worked for Peat, Marwick, Mitchell and Co., as an auditor for one (1) year. He also worked as a comptroller for the Banco International in Tucson, Arizona, for approximately a year and a half.

5. Mr. Perea was self-employed as a Certified Public Accountant from 1975 to 1979. During this time he was involved in management services including loan packaging for banks, SBA, Economic Development Agency (EDA), acquisition audits, and consulting on sales, mergers, and liquidation.

6. Mr. Perea was a member of the SBA Region 8 Denver Advisory Council prior to his application for an SBA guaranteed loan. Mr. Perea is a knowledgeable, sophisticated, and experienced person in commercial credit transactions.

7. In 1981, Mr. Perea formed the accounting firm of Perea and Associates, a Professional Corporation, in Denver, Colorado.

8. Robert Litzau (Litzau), Kenneth Heuer (Heuer), Ervina Mattson (Mattson), and Myrna Schmidt (Schmidt) were all certified public accountants who joined Perea and Associates, P.C., as shareholders, at different times.

9. As of January 24, 1985, the shareholders of Perea and Associates, P.C., were:

Stanley E. Perea 29%
Kenneth Heuer 25Va%
Robert Litzau 25x/2%
Ervina Mattson 10%
Myrna Schmidt 10%

10. Thomas LeVasseur (LeVasseur), an accountant, invested in the firm but could not become a shareholder because he was not a certified public accountant. He worked for Perea and Associates, P.C., as the Office Administrator in charge of the computerized billing system. He had no authority to make changes or adjustments to the financial statements without the approval and authorization from the president of the firm.

11. Mr. Perea was the President and Chairman of the Board of Perea and Associates, P.C., from its inception. As President and Manager of Perea and Associates, P.C., Mr. Perea organized, planned, and managed the firm. Mr. Perea was familiar with the books and records of the firm and the manner in which they were maintained. Mr. Perea participated in the meeting of the Board of Directors of Perea and Associates, P.C. (Denver), from its inception.

12. In early 1984, Mr. Perea moved to Alamosa, Colorado, and opened an accounting office. The office in Alamosa was not part of Perea and Associates, P.C. (Denver). Litzau became the President of Per-ea and Associates, P.C. (Denver), when Mr. Perea moved to Alamosa, Colorado. Mr. Perea, nevertheless, remained a shareholder and Chairman of the Board of Directors of Perea and Associates, P.C. (Denver).

13. Mr. Perea remained involved in the management of Perea and Associates, P.C. (Denver), even while residing in Alamosa and during the first six (6) months of 1985. [130]*130Mr. Perea was involved in the collection of accounts receivable, client development, client relations, and in the supervision of Litzau. During March, April, and May of 1985, Mr. Perea met with the other shareholders on a monthly basis to go over the financial statements and the accounts receivable of Perea and Associates, P.C.

14. Ms. Mattson became a shareholder in Perea and Associates, P.C., in May, 1984. She had been a certified public accountant since 1974. She specialized in auditing work and performed all of the audit work for the firm. Ms. Mattson became the President of Perea and Associates, P.C., after Litzau's resignation in May, 1985.

15. Perea and Associates, P.C. Denver, experienced losses since its inception. In the summer of 1985, Perea and Associates, P.C., had problems with collecting on their receivables and could not pay their pay-ables. Mattson, Heuer, Schmidt, and Le-Vasseur applied for an SBA loan in the amount of $325,000. With this money they planned to pay off a debt to the United Bank of Lakewood in the amount of $250,-000 and have $75,000 in working capital.

16. Ms. Mattson was asked by the other shareholders to prepare some projections on what the funds from the SBA loan would do for the firm. The result of these projections was that the business would be bankrupt in six (6) months even with the SBA loan that would provide the business with a $75,000 injection of working capital.

17. The shareholders then asked Matt-son to analyze the financial statement of Perea and Associates, P.C., to determine why the business was showing a net worth when the projections predicted imminent bankruptcy. Accordingly, Ms. Mattson analyzed the financial statement generated by Perea and Associates, P.C. (Denver), as of July 31, 1985. She reviewed the accounts receivable, notes receivable, work in progress, retained earnings, and the capital account.

18. Ms. Mattson consulted with the tax manager, the other shareholders, and Le-Yasseur and determined that the $64,-971.97 shown on the financial statement of Perea and Associates, P.C., as of July 31, 1985, as work in progress was overstated. She determined that only approximately $16,000 of the work in progress shown could be substantiated by firm records. Consequently, she proposed writing off approximately $48,000 of the work in progress.

19. Upon review and analysis of the accounts receivable (collection and trade) as shown in the financial statement of Perea and Associates, P.C. (Denver), as of July 31, 1985, she recommended that the financial statement be adjusted as follows:

a. a reduction of $52,575.42 to accounts receivable (trade),
b. a reduction of $23,283 to accounts receivable (collection),
c. creation of an allowance for uncol-lectible accounts (collection) of $5,626 (which reduces the accounts receivable by that amount),
d. a reduction of $48,025 to work in progress.

20. The above adjustments reduced the current assets of Perea and Associates, P.C. (Denver), as of July 31, 1985, from $267,943 to $138,333.95.

21. Mattson reviewed the capital account of Perea and Associates, P.C., from the date of inception to July 31, 1985.

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Bluebook (online)
89 B.R. 128, 5 Bankr. Ct. Rep. 274, 1988 Bankr. LEXIS 1087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-perea-in-re-perea-cod-1988.