In re Sinclair

• Citation: 556 B.R. 801
• Decision Date: 07 September 2016
• Docket Number: Case No. 11-34564
• Parties: In re: John W. Sinclair and Linda L. Sinclair, Debtors.
• Court: United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas

556 B.R. 801

In re: John W. Sinclair and Linda L. Sinclair, Debtors.

Case No. 11-34564

United States Bankruptcy Court, S.D. Texas, Houston Division.

Signed September 7, 2016

Melissa Rae Lanier, Currin, Wuest, Mielke, Paul & Knapp PLLC, Kingwood, TX, for Debtors.

MEMORANDUM OPINION REGARDING DEBTOR JOHN W. SINCLAIR'S: (1) MOTION TO FILE NON STANDARD MOTION FOR ENTRY OF CHAPTER 13 DISCHARGE; AND (2) NON-STANDARD MOTION FOR ENTRY OF DISCHARGE FOR MR. SINCLAIR

[Doc. Nos. 89 & 90]

Jeff Bohm, United States Bankruptcy Judge

I. INTRODUCTION

Another BAPCPA provision now presents a challenging analysis for this Court.¹ It involves statutory rape.

John W. Sinclair (“Mr. Sinclair”) and Linda L. Sinclair (“Ms. Sinclair”) (collectively, the “Debtors”) filed their Chapter 13 petition on May 31, 2011. Thereafter, this Court confirmed their Chapter 13 plan, and the Debtors made all of their plan payments. The Debtors have also taken the required financial management course, and filed the appropriate certificate on May 23, 2016. Thus, they have fulfilled the fundamental requirements to obtain a discharge.

But, there is a rub. 11 U.S.C. § 1328(h)(2),² in pertinent part, only permits this Court to grant a discharge if it finds “that there is no reasonable cause to believe that ... there is pending any proceeding in which the debtor may be found ... liable for a debt of the kind described in section 522(q)(1)(B).” Section 522(q)(1)(B)(iv) describes certain types of debts, including “a debt arising from ... any criminal act ... that caused serious physical injury or death to another individual in the preceding 5 years.” Read together, these two provisions only permit this Court to grant a discharge if the Court finds that there is no reasonable cause to believe that the Debtors can somehow become liable for a debt arising from a criminal act.

In the case at bar, this Court finds that it has reasonable cause to believe that a debt could arise from an existing criminal proceeding against Mr. Sinclair for his sexual relationship with a certain minor child (discussed more at length herein); and as such, this Court cannot grant him a discharge.³

The Court now makes the following Findings of Fact and Conclusions of Law pursuant to Rules 7052 and 9014. To the extent that any Finding of Fact is construed to be a Conclusion of Law, it is adopted as such; and to the extent that any Conclusion of Law is construed to be a Finding of Fact, it is adopted as such. Further, this Court reserves the right to make additional findings and conclusions as it deems necessary.

II. FINDINGS OF FACT

1. On May 31, 2011 (the “Petition Date”), the Debtors filed a Chapter 13 petition. [Doc. No. 1].

2. On October 17, 2011, this Court confirmed the Debtors' plan. [Doc. No. 49].

3. On March 4, 2013, the parents of a minor child filed an incident report with the Hudspeth County Sheriff's Office (the “Sheriff's Office”) concerning Mr. Sinclair's sexual relations with their minor daughter (the “Minor Child”). [Ex. No. 1, p. 6]. The incident report expressly states that Mr. Sinclair engaged in sexual intercourse with the Minor Child on numerous occasions. [Id. at p. 8].

4. On the same day, the Minor Child submitted to the Sheriff's Office a voluntary statement describing the events that occurred with Mr. Sinclair. [Id. at pp. 10-15]. According to her statement, in October 2012, the Minor Child began to visit Mr. Sinclair so that she could prepare meals for him. [Id. at p. 10]. Mr. Sinclair told the Minor Child that she “reminded him of his former wife” and “made him laugh and feel good,” so the Minor Child visited him almost daily. [Id. ]. The Minor Child expressed that she “didn't want to lose [Mr. Sinclair's] friendship,” so she continued to visit him after he explained the feelings he had for the Minor Child. [Id. ]. The Minor Child spent the night at Mr. Sinclair's home, and in October 2012, Mr. Sinclair kissed the Minor Child. [Id. ]. On October 23, 2012, the Minor Child celebrated her birthday at Mr. Sinclair's barn. [Id. at p. 11]. The Minor Child informed Mr. Sinclair that she did not have feelings for Mr. Sinclair; in response, Mr. Sinclair requested that she stop visiting his home. [Id. ]. Fearful that Mr. Sinclair would be “unhappy, starve, or kill himself,” the Minor Child continued to visit and cook for Mr. Sinclair, as well as “give [their relationship] another chance.” [Id. ]. Mr. Sinclair repeatedly told the Minor Child that “he would probably kill himself” if anything happened to the Minor Child. [Id. at pp. 10, 12]. Mr. Sinclair told the Minor Child that she was “the love of his life and that age didn't make a difference when it came to love,” which the Minor Child later came to believe. [Id. at p. 12]. The Minor Child felt “sorry” for Mr. Sinclair and felt that if she “brought [Mr. Sinclair] so much happiness, [she] would never want to take that away,” which made her believe she was doing the right thing by having sexual relations with Mr. Sinclair because he “really cared.” [Id. ].

5. In July 2014, Mr. Sinclair was indicted with a second degree felony of “Indecency with a Child Sexual Contact,” a violation of Texas Penal Code § 21.11(a)(1). The State of Texas specifically indicted him with four counts of sexual assault of “a child younger than 17 years of age.” [Id. at pp. 1-5]. Further, the indictment sets forth that the sexual assaults began around November 15, 2012. [Id. at p. 1]. No trial has yet been held, so Mr. Sinclair has not been convicted. The lawsuit that has resulted from the indictment is styled as follows: THE STATE OF TEXAS vs. John Sinclair, No. 5648-205th, in the District Court of Hudspeth County, Texas. (the “Criminal Proceeding”) [Ex. No. 2, p.1].

6. On September 16, 2015, pursuant an order entered in the Criminal Proceeding, a physician conducted an examination of Mr. Sinclair to determine his competency to stand trial. [Debtor's Ex. No. 5, p. 1]. On October 22, 2015, the examining physician drafted a document entitled “Forensic Psychological Evaluation: Competence to Stand Trial” (the “Evaluation”). [Ex. No. 5]. The Evaluation found that Mr. Sinclair is incompetent to stand trial. [Id. at p. 4]. The examining physician stated that “there is [a] possibility that Mr. Sinclair is malingering his symptoms, and if so, there would be little cause for a finding of incompetency.” [Id. ]. Further, according to the Evaluation, the examining physician believes that “Mr. Sinclair can be restored to competency in the foreseeable future [which would] require formal and intensive psychiatric treatment ....” [Id. at p. 5].

7. By May 23, 2016, the Debtors had made all of their required plan payments in their Chapter 13 case, [Doc. No. 82], taken the required financial management course, [Doc. Nos. 80 & 81], and filed the appropriate certificate, [Doc. Nos. 88 & 90], thereby fulfilling the fundamental requirements to obtain a discharge.

8. On June 29, 2016, Ms. Sinclair filed her Debtors' Certification, Motion for Entry of Chapter 13 Discharge, and Proposed Discharge Order (the “Motion for Entry of Discharge for Ms. Sinclair”). [Doc. No. 88]. The Motion for Entry of Discharge for Ms. Sinclair is the standard form motion promulgated by the Southern District of Texas. SeeBankruptcy Forms & Filing Fees, U.S. DIST. & BANKR. COURT S. DIST. OF TEX. , http://www.txs.uscourts.gov/bankruptcy/bankruptcy-forms-filing-fees (allowing access to the form titled “Debtor's Certification and Motion for Entry of Chapter 13 Discharge”).

9. On the same day, Mr. Sinclair filed two pleadings. First, he filed a pleading entitled: “Motion to File Non Standard Motion for Entry of Chapter 13 Discharge and Proposed Discharge Order” (the “Motion for Leave to File a Non-Standard Motion”). [Doc. No. 89]. The purpose of filing the Motion for Leave to File a Non-Standard Motion is to seek leave of this Court to allow him to file the a motion requesting a discharge that is not the standard form motion promulgated by the Southern District of Texas. The Motion for Leave to File a Non-Standard Motion expressly states that: “The criminal proceeding currently pending is not of the kind described in section 522(q)(1)(A) nor does it involve any liability for a debt of the kind described in section 522(q)(1)(B).” [Id. at p. 2].

10. The second pleading that Mr. Sinclair filed on June 29, 2016 is entitled: “Debtor's Certification, Motion for Entry of Chapter 13 Discharge and Proposed Discharge Order (Non-Standard )” (the “Non-Standard Motion for Entry of Discharge for Mr. Sinclair”). [Doc. No. 90] (emphasis added). It is this particular pleading that Mr. Sinclair, by filing the Motion for Leave to File a Non-Standard Motion, seeks permission from this Court to file. In the Non-Standard Motion for Entry of Discharge for Mr. Sinclair, he makes the exact same representations that his wife makes in her Motion for Entry of Discharge for Ms. Sinclair, with one exception. In paragraph F, whereas Ms. Sinclair—in accordance with the form promulgated by the Southern District of Texas—represents that “No criminal proceeding is pending against me alleging that I am guilty of a felony,” [Doc. No. 88], Mr. Sinclair makes the following representation: “No criminal proceeding is pending against me alleging that I am guilty of a felony of the kind described in section 522(q)(1)(A) or liable for a debt of the kind described in section 522(q)(1)(B),” [Doc. No. 90]. Thus, read together, Mr. Sinclair's two pleadings—the Motion for Leave to File a Non-Standard Motion and the Non-Standard Motion for Entry of Discharge for Mr. Sinclair (the “Two Motions”)—are aimed at convincing this Court to grant him a Chapter 13 discharge without using the standard form, which he is precluded from using due to the existence of the felony indictment pending against him. [See Finding of Fact No. 5]. Stated differently, Mr. Sinclair wants this Court to grant him a discharge even though he has been indicted for a felony and faces a trial in

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