In re Matus
| Decision Date | 21 January 2004 |
| Docket Number | Bankruptcy No. 02-93358-CRM.,Adversary No. 02-9303-CRM. |
| Parties | In re Jose Orlando MATUS, Jr., Debtor. Eastern Diversified Distributors, Inc., Plaintiff, v. Jose Orlando Matus, Jr., Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Brian B. Pastor, Pastor Law Group, Atlanta, GA, for Plaintiff.
John A. Roberts, Melanie Webre, The Roberts Law Firm, Atlanta, GA, for Defendant.
THIS MATTER is before the Court on the Adversary Proceeding (the "Complaint") filed by Eastern Diversified Distributors, Inc. ("Eastern Diversified" or the "Plaintiff"). The Plaintiff seeks to deny a discharge to Jose Orlando Matus, Jr., the debtor in the above-styled bankruptcy case ("Matus" or the "Debtor"), pursuant to 11 U.S.C. §§ 727(a)(2), (a)(4)(A), and (a)(4)(D) (the "Bankruptcy Code"). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(J). A trial on the Complaint was held on October 30, 2003. The Court has considered the pleadings, briefs, and other documents submitted by the parties, as well as the testimony elicited at the trial. The Court concludes that the Debtor is not entitled to a discharge.
I. FACTUAL BACKGROUND
The Debtor is represented by John A. Roberts of The Roberts Law Firm ("Roberts" or "Counsel").1 Roberts also represents the Debtor in Eastern Diversified Services, Inc. d/b/a/ Premier Brass v. Jose Matus and JM Diversified Distributors, Inc. (Civil Action No. 01CV4818-6), in the Superior Court of DeKalb County, Georgia (the "DeKalb County action"). On January 17, 2002, Counsel filed a Notice of Suggestion of Bankruptcy (the "Notice of Bankruptcy") in the DeKalb County action. In March 2002, Counsel prepared a quitclaim deed (the "original deed") transferring the Debtor's undivided full interest in the Debtor's residence located in DeKalb County, Georgia, to his wife, Kelly Tanner Matus. The original deed was recorded in the DeKalb County records on March 4, 2002.
On March 28, 2002, the Debtor filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code, two months after Roberts prepared and filed the Notice of Bankruptcy and three weeks after the Debtor purportedly conveyed his interest his residence to his wife. The petition was signed by the Debtor and Roberts. On the petition date, the Debtor did not file Schedules A-J and the Summary of Schedules (collectively, the "Schedules"), or the Statement of Financial Affairs as mandated by section 521(1) of the Bankruptcy Code and Rule 1007 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"). The Debtor also failed to file the Attorney Disclosure Statement required by section 329(a) of the Bankruptcy Code and Rule 2016 of the Bankruptcy Rules (the "2016 Statement").
On April 4, 2002, the Debtor filed a Motion for Extension of Time to File Schedules and Statement of Affairs. Counsel indicated that due to the large number of creditors, an extension was necessary "in order for [the Debtor] to accurately complete and file with the Court his Schedules and Statement of Financial Affairs." The Court granted the request, and extended the time for filing until April 17, 2002. Instead of filing the required papers on April 17, 2002, Roberts prepared an Amended Quitclaim Deed (the "amended deed") to correct the legal description of the real property described in the original deed, and then had the amended deed recorded in DeKalb County. The Debtor did not seek Court approval, nor was the Chapter 7 Trustee, Tamara Ogier (the "Trustee"), advised of this postpetition transfer.
On April 18, 2002, the Debtor filed his Statement of Financial Affairs, declaring "under penalty of Perjury that [the Debtor] read the answers contained in the foregoing statement of financial affairs and any attachments thereto and that they are true and correct to the best of [his] knowledge information, and belief."2 The Debtor also filed his Schedules on April 18, 2002. Notably, the 2016 Statement was not filed.
On May 23, 2002, the section 341 meeting of creditors (the "meeting of creditors") was held. Although the Debtor made one voluntary admission (that he had an IRA valued at approximately $15,000), it was only after being questioned by the Trustee and Plaintiff's Counsel that he disclosed several omissions and acknowledged numerous inaccuracies in his Schedules and Statement of Financial Affairs. See Table 1 — Debtor's Filings and Admissions.
On June 7, 2002, the Debtor filed, under penalty of perjury, the Amendment to Schedules and Statement of Financial Affairs (the "first amendments"). The first amendments were filed to address omissions and misrepresentations discovered through the examination of the Debtor at the meeting of creditors. On August 29, 2002, the Debtor filed a second Amendment to Schedules and Statement of Financial Affairs (the "second amendments"). The Debtor submitted a notarized Verification, duly swearing that the facts contained in the second amendments were true and correct.
On October 29, 2003, one day before the trial on the Complaint, the Debtor filed the third Amendment to Schedules (the "third amendments"), attaching a notarized Verification affirming their veracity.
On October 31, 2003, the Court entered an Order directing Roberts to file the 2016 Statement. On November 13, 2003, Roberts filed the fourth Amendment to Schedules (the "fourth amendments"), along with the 2016 Statement. However, the Debtor's Verification was not filed with the 2016 Statement.
The following chart summarizes the Debtor's filings and admissions:
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