Dietz, In re
| Decision Date | 04 September 1990 |
| Docket Number | 89-35031,Nos. 89-35030,s. 89-35030 |
| Citation | 914 F.2d 161 |
| Parties | 23 Collier Bankr.Cas.2d 1006, Bankr. L. Rep. P 73,611 In re Lelon C. DIETZ, dba Com-Group Portland; Airbrush Digest Publishing, Debtors. Peggy C. ROSS; Jeannette F. Hardy; Larry G. Wrenn; Jonathan M. Yost; Barclays American Financial Inc.; Carl P. Dietz; O. Rufine Dietz; Isabel Tynon Martell; Karen Lisbakken Lowery, Appellants, v. John MITCHELL, Trustee, Appellee. In re Lelon C. DIETZ, dba Com-Group Portland; Airbrush Digest Publishing, Debtors. Lelon C. DIETZ, Appellant, v. John MITCHELL, Trustee, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jonathan Yost, Huntington Beach, Cal., for appellants.
Steve Rissberger, Ranson, Blackman & Simson, Portland, Or., for appellee.
Appeal from the Ninth Circuit Bankruptcy Appellate Panel.
Before WRIGHT, TANG and CANBY, Circuit Judges.
John Mitchell, the trustee in bankruptcy, requested that the bankruptcy court deny or, in the alternative, revoke Lelon Dietz's chapter 7 discharge; and that it order certain individuals to return various sums of money that Dietz, without Mitchell's authority, had paid them from estate assets. The bankruptcy court granted Mitchell's requests, and the Bankruptcy Appellate Panel affirmed in all respects. 94 BR 637. Dietz and the payees appeal. We affirm.
In the fall of 1984, after Dietz had filed a voluntary petition for relief and had subsequently defaulted on his chapter 11 plan, the bankruptcy court placed Dietz's estate into liquidation under chapter 7 of the bankruptcy code, 11 U.S.C. Secs. 701-766, and appointed Mitchell as trustee. Dietz's creditors met in December 1984, and the subsequent 60-day period for objecting to discharge of debts expired without any objections having been filed. Although Dietz thereby became entitled to discharge on February 15, 1985, the court never entered a formal order to that effect. 1
Pursuant to his authority, Mitchell had decided to operate one of Dietz's two sole proprietorships ("Com-Group", a custom printing operation) and not to operate the other ("Airbrush", a magazine publishing and distribution operation). Despite the trustee's decision, Dietz took steps to continue Airbrush. Without informing Mitchell or the creditors, Dietz opened a bank account in Virginia, and deposited in it proceeds from prepaid subscriptions, accounts receivable and a loan from his fiance. Dietz also drew on the account in order to keep the business going.
Mitchell first became aware of the Virginia account sometime in January 1985; he obtained official records of the account on February 18, 1985. Four days later, on February 22, 1985, he filed a complaint in which he asked that the court either deny or revoke Dietz's discharge. 2 Subsequently, Mitchell filed several adversary proceedings against individuals who had received payments from the Virginia account.
The bankruptcy court ruled that, because no objection had been filed within 60 days after the meeting of Dietz's creditors, Dietz's discharge was "deemed to have been entered" on the 60th day, i.e., February 15, 1985. The court also found, among other things, that the Virginia account was property of the chapter 7 estate, that Dietz knowingly and intentionally failed to disclose the account's existence in order to misappropriate assets of the estate, and that Dietz acted to hinder and defraud the trustee and creditors of the estate. Consequently, the court revoked the discharge. 3 It also determined that nine of the eleven individuals who received funds from the Virginia account must repay the estate.
Dietz and the Virginia account payees claim that the bankruptcy court's resolution of Mitchell's actions suffered from procedural and substantive defects. Having reviewed the court's findings of fact for clear error and its conclusions of law de novo, see Daniel v. Security Pac. Nat. Bank (In re Daniel), 771 F.2d 1352, 1353 (9th Cir.), cert. denied, 475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986), we reject these challenges. We affirm the judgment both as to the revocation of Dietz's discharge and as to the liability of the nine payees to make repayments to the estate.
The bankruptcy code provision under which Mitchell brought this action states that on request of a trustee the court shall revoke a discharge if
the debtor acquired property that is property of the estate ... and knowingly and fraudulently failed to report the acquisition of or entitlement to such property, or to deliver or surrender such property to the trustee....
11 U.S.C. Sec. 727(d)(2). Courts have interpreted this section to require that the trustee must have learned of the debtor's fraud after discharge had been granted. See, e.g., Werner v. Puente (In re Puente), 49 B.R. 966, 969 (Bankr.W.D.N.Y.1985); In re Lyons, 23 B.R. 123, 125-26 (Bankr.E.D.Va.1982). 4 Dietz claims that Mitchell's request for revocation was insufficient for two independent reasons: first, there was nothing to revoke since the court had never entered an order of discharge; second, Mitchell knew before the date of discharge the facts on which he based his request for revocation. Neither of these contentions has merit.
Although the bankruptcy court had not formally entered an order of discharge at the time Mitchell requested revocation, it did not err by considering the request. See In re Meo, 84 B.R. 24, 28 (Bankr.M.D.Pa.1988) (). By "deem[ing the discharge] to have been entered" on February 15, 1985, the court acted consistently with the spirit of the bankruptcy rules, which contemplate that discharge is effective immediately upon expiration of the 60-day period following the creditors' meeting, so long as no objections are filed. See Bankr.Rule 4004(c); B. Weintraub and A. Resnick, Bankruptcy Law Manual, p 3.04 at 3-19 (rev. ed. 1986) ( that in the absence of timely objections discharge is "automatic" and "a matter of course").
Nor did the bankruptcy court clearly err by finding that Mitchell learned of the basis for revocation only after February 15, 1985, the effective date of discharge. Although Mitchell became aware in January 5 that the Virginia account existed and that Dietz had written a check on that account to an Airbrush employee, Mitchell did not know that the funds in the account were estate assets. Indeed, Dietz had informed Mitchell that the funds in the account were the proceeds of a loan. According to Mitchell's testimony, it was not until February 18, 1985, when he received official records from the Virginia bank, that he realized the account predated Dietz's involuntary bankruptcy and contained money belonging to the estate. Thus, sufficient evidence supported the finding that Mitchell learned of the critical fact--Dietz's unauthorized use of estate funds--after the effective date of discharge.
The bankruptcy code provisions under which Mitchell proceeded against the Virginia account payees allowed him, as trustee, to "avoid" unauthorized transfers of estate property, and to recover that property from the initial transferee, or from any subsequent transferees who did not prove that they received the property in good faith, for value, and without knowledge of the voidability of the transfer. See 11 U.S.C. Secs. 549(a), 550(a) and (b). The Virginia account payees claim that Mitchell's attempted recovery must fail, first, because he filed the actions after Dietz's discharge became effective; and, second, because the payees were initial transferees and received the property in good faith. Both of these arguments are incorrect.
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