Bankruptcy - Discharge - Denial.


Byline: Mass. Lawyers Weekly Staff

Where a creditor has requested that a Chapter 7 debtor be denied a discharge, that request should be granted, as the debtor failed to keep and preserve adequate books and records and transferred property with the intent to hinder, delay and defraud.

" The Court infers from the Debtor's failure to fully comply with discovery orders to produce records, coupled with his invocation of the Fifth Amendment, that, had he complied with his responsibilities to produce discoverable materials, his records would have revealed information adverse to his interest in obtaining a Chapter 7 discharge.

"With respect to Count I under 11 U.S.C. 727(a)(2)(A), which precludes the entry of a discharge if the debtor, with intent to hinder, delay, or defraud a creditor, has transferred, removed, or concealed property of the estate within one year before the date of the filing of the petition, a plaintiff must establish the following: '(1) transfer or concealment of property (2) that belonged to the debtor (3) less than a year before the bankruptcy petition (4) with actual intent to hinder, delay, or defraud a creditor.'

"The Court concludes that the Debtor's discharge should be denied under 11 U.S.C. 727(a)(2)(A) because the Debtor transferred cash in the amount of $42,000.00 from his personal bank account at Belmont Savings Bank ending in 1750 to the G D Humanitarian Foundation with the intent to hinder, delay and defraud a creditor.

"To warrant denial of discharge under 727(a)(2)(B), a plaintiff must establish that the debtor, with intent to hinder, delay and defraud a creditor, transferred property of the estate after the filing of the petition. Patriot's count under 727(a)(2)(B) is predicated upon proof that the contents of the websites and brochures belonging to National Tax Institute, Inc. and CPE Meetings Inc., as well as good will, were assets of the Debtor and that, upon the filing of the bankruptcy petition, those assets became property of his bankruptcy estate which he then transferred to Fustolo CPE, LLC with intent to hinder, delay, and defraud creditors.

" Accordingly, the Debtor is not entitled to a discharge under 727(a)(2)(B).

"Section 727(a)(3) provides that the court shall grant the debtor a discharge, unless '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...

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