Wachovia Bank, National Association v. Voccia (In re Voccia)

477 B.R. 625
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedFebruary 1, 2011
DocketBankruptcy No. 09-33513-DOT; Adversary No. 09-03242-DOT
StatusPublished
Cited by9 cases

This text of 477 B.R. 625 (Wachovia Bank, National Association v. Voccia (In re Voccia)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wachovia Bank, National Association v. Voccia (In re Voccia), 477 B.R. 625 (Va. 2011).

Opinion

MEMORANDUM OPINION

DOUGLAS O. TICE JR., Chief Judge.

Plaintiff Wachovia Bank, National Association, a creditor in debtor’s chapter 7 bankruptcy case, brought this adversary proceeding to deny debtor’s discharge in bankruptcy pursuant to 11 U.S.C. § 727(a)(2)(A) and (B), and § 727(a)(4)(A). Trial on the complaint was held on October 4, 2010, at the conclusion of which the court deferred argument and requested the parties to submit proposed findings of fact and conclusions of law.

This adversary proceeding is a core matter pursuant to 28 U.S.C. § 157, and the court has subject matter jurisdiction pursuant to 28 U.S.C. § 1334.

After consideration of the trial record and the parties’ submissions, the -court finds, for reasons stated below, that the debtor’s discharge in bankruptcy will be denied.

Findings of Fact.

Background.

Debtor lives in Spotsylvania County, Virginia. He has been married to Pamela Voccia for twenty years, and they have two children.

Debtor, his brother Edward Voccia, and another individual are in business as concrete contractors. The three individuals are equal owners of Lands Concrete, Inc., a Virginia corporation organized under [628]*628Subchapter S of the Internal Revenue Code, 26 U.S.C. §§ 1361-1379. Lands Concrete was formed in 1997 to operate as a concrete contractor and is still engaged in business. The corporation’s 2008 federal income tax return discloses that it had gross income in the amount of $291,749 and an operating profit of $60,549. However, the corporation suffered a net loss based on its sales of property;1 debtor’s proportionate share of the loss was $76,688. On December 31, 2008, the corporation had total assets at book value of $430,925 and retained earnings of $64,925. (PL Ex. 10.)

The same three individuals are equal owners of East Coast Modulars, Inc., a Virginia Subchapter S corporation formed in 2004 and operating as a concrete contractor. That corporation’s 2009 federal income tax return discloses a profit of $627 on sales of $9,155. On December 31, 2009, East Coast Modulars had assets with a book value of $9,612, including $10,261 in cash, and no scheduled debt. (PI. Ex. 22.)

Debtor pro se filed this chapter 7 case on June 2, 2009. He was assisted in the preparation of the petition by David Silla-man, who previously had filed pro se his own bankruptcy petition but otherwise had little experience in preparing bankruptcy petitions.

Harry Shaia Jr. was appointed debtor’s chapter 7 trustee, and the initial § 341 meeting of creditors was held June 30, 2009. During this meeting, the trustee noted potential errors and omissions in the debtor’s petition and schedules and advised debtor to obtain counsel. The trustee adjourned the § 341 meeting to a later date to allow debtor to obtain counsel.

On August 17, 2009, attorney Jeanne E. Hovenden noted her appearance as counsel for debtor. On debtor’s behalf, Ms. Ho-venden filed five amended schedules to debtor’s petition on the following dates: 1) September 28, 2009 (Docket No. 47), 2) October 14, 2009 (Docket No. 57), 3) January 19, 2010 (Docket No. 85), 4) May 13, 2010 (Docket No. 119), and 5) September 17, 2010 (Docket No. 145). A summary of the amendments is attached as an Exhibit to this opinion. Debtor filed amended statements of affairs on January 19 and September 17, 2010.

On October 29, 2009, plaintiffs counsel conducted an examination of debtor under Fed. R. Bankr.P. 2004.

On September 13, 2010, plaintiffs counsel took debtor’s deposition.

Debtor’s Schedules of Assets and Statements of Affairs.

The following are significant aspects of debtor’s original and amended asset schedules.

REAL PROPERTY — SCHEDULE A

Debtor’s initial (pro se) Schedule A listed two parcels of real property, 8804 Boulevard of the Generals (Lot 8, Sec. 1, Estates of Lee-Jackson), Spotsylvania County, Virginia, at a value of $288,000 and 204 Privacy Road in Bumpass, Virginia, at a value of $250,000. The schedule stated that the properties were held by “Husband.”

First Amended Schedule A (September 28, 2009). The first amended schedules were filed after debtor had retained Jeanne Hovenden as his attorney. First amended Schedule A listed four parcels of real property in addition to the two properties listed in the initial Schedule A. The four new properties were 1) 58 Twin Oak Lane, Littleton, N.C. ($15,000); 2) 18 Country Club Shores, Gasburg, Virginia ($15,000); 3) vacant lot (Lot 129) on Lake Anna in Bien Venue ($25,000); 4) 35R Sunny Acres Road, Littleton, N.C. ($25,-[629]*629000). The first amended Schedule A stated that all six of the listed properties were owned as “Tenants by the Entireties.”2 The listed value of the Bumpass property was increased from $250,000 to $425,000.

Second Amended Schedule A (October H, 2009). Debtor’s second amended Schedule A listed the same properties as in the first amendment. However, this amendment stated that debtor’s interest in the Spotsylvania County property was “beneficial interest” rather than tenants by the entireties.3 This property, also known as Lot 8, Section 1 of the Estates of Lee-Jackson, is the residence of debtor and his wife and was formerly owned by them as tenants by the entireties. On August 25, 2008, Anthony and Pamela Voccacia conveyed this property in trust to Sugarland Properties, LLC, a Virginia limited liability company; they are the sole beneficiaries of the trust. The purpose for this transfer in trust was to protect debtor’s property from tort claims. (Stip. Facts 18; PI. Ex. 5.) Also in the second amended Schedule A, the value of 18 Country Club Shores was increased from $15,000 to $22,500 based on a contract to sell at that price. The total listed value of real property in the second amendment was $800,750.

Third Amended Schedule A (January 19, 2010). In his third amendment to Schedule A, debtor listed three properties not previously disclosed. These additional properties were shown to be owned as a tenant in common with debtor’s brother Edward Voecia and described as lots 12, 38 and 40 of Bien Benue (sic) Plantation at Lake Anna with listed values, respectively, of $60,800, $60,800, and $66,800. Real estate tax bills for these lots were mailed to debtor at his residence. (Stip. Facts 39.) Other changes to Schedule A in the third amendment included an increase in value for the Spotsylvania property from $288,000 to $325,000 and for Lot 129 Bien Venue from $25,000 to $60,800. Additionally, the amendment stated that debtor’s interest in his Spotsylvania residence was “beneficial interest with wife in trust that owns the property.” The third amended Schedule A listed total value of the scheduled real property at $1,061,950.

There were no further amendments to debtor’s real property schedules.

PERSONAL PROPERTY-SCHEDULE B

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Cite This Page — Counsel Stack

Bluebook (online)
477 B.R. 625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wachovia-bank-national-association-v-voccia-in-re-voccia-vaeb-2011.