In re Sausser, Bankruptcy No. 92-3048-8P7
| Decision Date | 28 September 1993 |
| Docket Number | Bankruptcy No. 92-3048-8P7,Adv. No. 92-545. |
| Citation | 159 BR 352 |
| Parties | In re Roger A. SAUSSER, Debtor. Judy A. HOLLAND, Plaintiff, v. Roger A. SAUSSER, Defendant. |
| Court | U.S. Bankruptcy Court — Middle District of Florida |
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Alberto F. Gomez, Jr., Tampa, FL, for plaintiff.
Buddy D. Ford, Tampa, FL, for debtor, defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION
This is a Chapter 7 liquidation case and the matter under consideration is an Objection filed by Judy A. Holland (Plaintiff) to the discharge of Roger A. Sausser (Debtor) pursuant to 11 U.S.C. § 727(a)(4)(A), (a)(2)(A), and (a)(3).
In Count I, the Plaintiff alleges that the Debtor knowingly and fraudulently made false oaths in connection with this case by failing to disclose his interest in certain assets on his Schedules and Statement of Financial Affairs. The claim in Count II is based on the contention that the Debtor concealed and otherwise did not disclose certain of his assets with the intent to hinder, delay, and defraud his creditors. In Count III, the Plaintiff claims that the Debtor failed to maintain proper books and records documenting his financial conditions. The pertinent facts as established by the record and at the evidentiary hearing are as follows:
The Debtor filed his petition for relief pursuant to Chapter 7 of the Bankruptcy Code on March 6, 1992. Along with his Petition for Relief, the Debtor filed his Schedule of Assets and Liabilities and his Statement of Financial Affairs, which were signed by the Debtor under penalty of perjury.
It is undisputed that at all times relevant the Debtor owned a three bedroom, two bath cypress log home built in 1989. The log house has a total of 2,800 square feet and is built on a 2.2 acre lot. In addition to the log house, the Debtor also owns a 1978 double-wide Guerdon mobile home which was originally owned by the Debtor and Andrea Sausser, his deceased former wife, and now the Debtor is the sole owner of the mobile home.
The entire 2.2 acre parcel is divided by a chain link fence, separating it into distinct parcels, one for the log home and the other for the mobile home. Each carries a separate street address, a separate mailbox, and has separate electric meters.
The Debtor lived in the log house and listed the street address for this parcel as 13203 Blissfield Road on his Florida driver's license. The mobile home, which carries the address of 13215 Blissfield Road, was leased out by the Debtor, and was not used and is still not used as his residence.
The Debtor in his Schedule "A" (Real Property) listed the log home only as his residence, specifically its street address, but made no mention of the parcel on which the mobile home sits. Neither did the Debtor list his ownership interest in the mobile home or that he had leased the mobile home and received lease payments from the tenant, both pre and post petition.
In addition, on or about November of 1991, four months prior to filing, the Debtor listed the log home for sale, advertising it as a custom built cypress log home situated on 1.2 acres of land, with numerous amenities, including a pond, for a price of $220,000. No reference to the adjoining mobile home parcel was made in the ad.
According to the Debtor, by listing only the address of his log home residence, he presumed that this would constitute the entire 2.2 acre parcel, since the entire property — both the mobile home parcel and the log home parcel — is covered by one tax bill and both are encumbered by a first and second mortgage. Therefore, the Debtor considered the entire 2.2 acres as his homestead and made the single disclosure on his schedules to include his interest in the mobile home, reportedly on the advice of his attorney.
In addition, it is undisputed that the Debtor did not disclose his ownership interest in an 18' Orlando Star Clipper boat. The record reveals that on February 4, 1991, the Debtor's father transferred his ownership interest in the boat to the Debtor. The Debtor kept and is still keeping the boat at his log home resident. On March 4, 1991, or after the Debtor obtained title to the boat, he transferred the title back to his father. It is without dispute that the Debtor did not receive any consideration for this transfer and the boat was transferred admittedly for the sole purpose of keeping the boat out of any subsequent bankruptcy case. In this connection, it should be pointed out that the boat was listed as an amenity in the advertised offering of the Debtor's log home parcel for sale. According to the State of Florida title records, the title was issued in the Debtor's name as of February 4, 1991, and was still listed as such on the "corrected registration" issued in June 1991, some three months after the purported transfer back to his father. Further, the title records still lists the Debtor as the owner as of November 1992, some eight months after the filing of his petition for bankruptcy.
On February 20, 1992, the Debtor remarried, approximately two weeks prior to filing his voluntary Petition for relief. He testified at his deposition that he purchased his fiance's engagement ring and wedding band in January of 1992, paying a total of approximately $450 for both. However, in answering Question 7 on his Statement of Financial Affairs requesting the disclosure of gifts, the debtor answered the question in the negative.
Based on these facts, the Plaintiff, who is the ex-wife and a creditor of the Debtor, contends that the Debtor is not entitled to his discharge. The Plaintiff asserts that the failure to disclose assets constitutes false oath, and concealment of assets to hinder, delay and defraud creditors is sufficient to deny the Debtor his discharge pursuant to 11 U.S.C. § 727(a)(2)(A) and (a)(4)(A). Further, the Plaintiff contends that the Debtor's failure to maintain proper books and records documenting his financial requirements is also grounds to deny the Debtor his discharge pursuant to § 727(a)(3). These subsections of § 727 read in pertinent part as follows:
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