ROBERT H. JACOBVITZ, United States Bankruptcy Judge.
The Court held a combined trial on the merits of the above adversary proceedings
Defendant Scott Bushey owned and operated tanning salons in Albuquerque, New Mexico. Many people who knew him felt his charisma. In fact, the success of his tanning salons was due in large part to his ability to empower people. He operated his tanning salon business under the corporate name Sun Center of America, Inc. ("Sun Center"). Mr. Bushey was the president and 100% shareholder of Sun Center. He also franchised the tanning salon business under the name Solarius Lifestyle Spa through another business entity, Solarius Franchising, LLC ("Solarius"). In 2007, Mr. Bushey, through Solarius, sold a franchise to Blonde & Bitter, LLC ("B & B"), a limited liability company formed and owned by Brandon Aschraft and his wife, Amber Ashcraft. B & B planned to open a tanning salon on Alameda Boulevard in Albuquerque.
B & B obtained an SBA guaranteed loan in the amount of $495,200.00 from First Community Bank. See Exhibit 192. Brandon and Amber Ashcraft, along with Mr. Ashcraft's parents, Roger and Nancy Cronk, guaranteed the loan. Id. The store opened in the spring of 2008, but failed to meet the anticipated sales projections. Sun Center, acting through its agent, Mr. Bushey, agreed to take over the business and assume the loan. Sun Center entered into an agreement with B & B to repurchase the franchise and assume certain obligations. Ultimately, however, Plaintiffs filed a lawsuit against Mr. Bushey, Sun Center, and Solarius over disputes concerning the franchise agreement and Sun Center's agreement to repurchase the franchise and assume certain obligations. The parties entered into an agreement in February of 2009 to settle their dispute. See Settlement Agreement and Mutual Release ("Settlement Agreement") — Exhibit 207. As part of the Settlement Agreement, Mr. Bushey guaranteed the SBA loan. Id. Sun Center assumed the loan, but First Community Bank would not release the Cronks or the Ashcrafts from their personal guaranties. Mr. Bushey executed an SBA Unconditional Guarantee on May 30, 2009. See Exhibit 192, p. 45. An addendum to the Settlement Agreement provided that First Community Bank's release of Plaintiffs would not be required until November 30, 2015 and that Mr. Bushey, Sun Center, and Solarius would seek to refinance the loan. See Addendum to Settlement Agreement and Mutual Release ("Addendum") — Exhibit 207. The Addendum provided further that Plaintiffs had the option to reassume operation, ownership and control of the tanning salon in the event Sun Center defaulted in payments due First Community Bank. Id. Sun Center defaulted under the loan, but neither Sun Center nor Mr. Bushey ever gave Plaintiffs the option to reassume the operation, ownership, and control of the tanning salon as contemplated under the Addendum.
U.S. Bank acquired First Community Bank and became the holder of the loan. Mr. Bushey contacted Second Wind Consultants,
Vance Dugger and Mr. Bushey were friends at one time. Mr. Dugger first met Mr. Bushey when Mr. Dugger went to the tanning salon as a customer. They went to bible study together. Mr. Bushey attended Mr. Dugger's wedding. At some point, Mr. Bushey suggested to Mr. Digger that he consider taking over Sun Center's tanning salon business. Mr. Dugger agreed that he would purchase the business and allow Mr. Bushey to continue to work at the business and act as its manager.
On September 20, 2013, Sun Center and Alameda Assets Management, LLC ("Alameda Assets") entered into a Purchase and Sale Agreement for the sale of substantially all of Sun Center's assets to Alameda Assets for $30,000.00. See Exhibit 9. Mr. Dugger owned 100% of Alameda Assets. The amount of the purchase price was the amount U.S. Bank agreed to accept from the buyer in exchange for releasing its lien against the assets. Mr. Dugger did not have any direct contact with U.S. Bank before the sale. Nor did Mr. Dugger have any direct contact with Second Wind regarding the transaction. Mr. Dugger understood that Second Wind prepared the documents for the transaction. Mr. Dugger agreed to the asset sale to help his friend, Mr. Bushey. Mr. Dugger does not remember reviewing any profit and loss statements, tax returns, or payroll records before agreeing to purchase the business. Even though Mr. Dugger was willing to help Mr. Bushey, Mr. Dugger made it clear that he would not put up the money to purchase the business; Mr. Bushey would have to come up with the money himself.
Mr. Bushey provided from his personal assets the $30,000 purchase price for the sale of Sun Center's assets to Alameda Assets. To fund the purchase price, Mr. Bushey obtained a loan secured by a 2008 GMC truck. The owner listed on the title on the 2008 GMC truck is Scott Bushey. He took $25,000 in cash from the loan and deposited it into his girlfriend's checking account. See Exhibit 16. Mr. Bushey then withdrew money from the account, placed the cash in an envelope, and brought it to Mr. Dugger's office.
U.S. Bank released its lien on the collateral pledged to secure the loan to Sun Center upon its receipt of $30,000. See Letter from U.S. Bank to Sun Center confirming U.S. Bank's preliminary approval of the release of its security interest in Sun Center's assets upon receipt of $30,000, acknowledged by Sun Center and Mr. Bushey — Exhibit 101. U.S. Bank agreed to accept $30,000 in exchange for releasing its lien against the assets based on its belief that the purchase and sale transaction was at arm's length. Mr. Bushey,
Mr. Bushey took an active role in perpetrating a scheme to form a new entity to acquire Sun Center's assets and obtain a release of lien from U.S. Bank by falsely making it appear to be an arm's length transaction. Mr. Bushey's secret funding of the purchase price, and emails from Mr. Bushey to Second Wind, support this finding. See Exhibit 79 — Email dated December 4, 2013 from Mr. Bushey to Donald Todrin of Second Wind ("The transition of making a new LLC for the purchase of assets has also been an additional expense that far exceeds what I could have imagined because of the increased insurance expenses that I am having to pay as a result of protecting `the Buyer' of the assets."). Mr. Bushey's email communication to Second Wind also appears to confirm that Mr. Bushey put up the $30,000 purchase price. Id. ("I have basically lost an additional $30K in cash this year due to the circumstances of the workout not going according to plan."). Mr. Bushey never informed Plaintiffs of Sun Center's asset sale to Alameda Assets.
After Alameda Assets took over the business, Mr. Bushey continued to work at the tanning salon. He continued to treat the business as if he owned it. He was the authorized signor on Alameda Assets' checking account. He made several business trips, including travel to trade shows, and charged the travel and entertainment expenses to Alameda Assets. He also had Alameda Assets pay some of his personal expenses. He signed two checks for $5,168.46 each using Alameda Assets' checking account to purchase a motorcycle for himself. See Exhibit 26, p. 59. In connection with his purchase of a $110,000 Porsche, Mr. Bushey represented to the car dealer that he was the CEO of Sun Center earning a $300,000 annual salary. See Exhibit 31. At that time, Sun Center had already sold its assets to Alameda Assets. Mr. Bushey continued to have Alameda Assets pay the premiums on his whole life insurance policy. See Exhibit 30, p. 33 (signing a request for electronic funds transfer for payment of the insurance policy premiums from Alameda Assets' account; Mr. Bushey signed the request as "general partner managing operator"). Mr. Bushey did not have a membership interest in Alameda Assets.
Mr. Dugger eventually became frustrated with the way Mr. Bushey was managing Alameda Assets because Mr. Bushey was operating the business as if he still owned it. Mr. Bushey would not take direction from Mr. Dugger about how to run the business or keep business books and records in the manner Mr. Dugger required. On October 1, 2014, Mr. Dugger and Charles O'Donnell executed a Membership Interests Purchase Agreement (the "Sale Agreement"). See Exhibit 19. Under the Sale Agreement, Mr. O'Donnell acquired from Mr. Dugger 100% of the membership interests of Alameda Assets. Id. The Sale Agreement contains a stated purchase price of $35,000. Id. Mr. O'Donnell signed a Demand Promissory Note in favor of Vance Dugger in the amount of $30,000. Id. at p. 12. Mr. Bushey had introduced Mr. O'Donnell, who was also a customer at the salon, to Mr. Dugger. One day Mr. Dugger, Mr. O'Donnell, and Mr. Bushey
Despite the Sale Agreement, $1,746 was the figure ultimately used as the purchase price for the sale of Mr. Dugger's interest in Alameda Assets to Charles O'Donnell. A document called Release of Demand Promissory Note ("Release") purports to release all obligations under the Demand Promissory Note upon receipt of a "Lump sum payment of $1,746." Exhibit 19, p. 13. Once again, Mr. Bushey was the source of the money used for the sale. Mr. O'Donnell did not pay any money to acquire the membership interests of Alameda Assets. He did not pay $35,000 as reflected in the Sale Agreement; he did not pay the $30,000 under the Demand Promissory Note, and he did not pay the lump sum figure reflected in the Release. The Release does not contain Mr. Dugger's signature, yet it is clear from Mr. Dugger's testimony that Mr. Dugger received that sum of money and believes he sold his interest in Alameda Assets to Mr. O'Donnell. Mr. O'Donnell acquired the business for nothing. Mr. Bushey orchestrated the transaction and provided the money to close the sale, just as he did for Mr. Dugger when Alameda Assets purchased the assets of Sun Center.
After Mr. O'Donnell acquired Alameda Assets, Mr. Bushey's girlfriend, Cecelia De La Fuente, served as the manager for a salary of $3,800 monthly, plus commissions. See Exhibit 20. Mr. Bushey's income from working at the salon was reduced to $1,000 per month. Mr. Bushey would give his paycheck to Ms. De la Fuente for use towards payment of the couple's shared household expenses. Because Ms. De la Fuente earned more money, she paid most of Mr. Bushey's household expenses. Post-petition, Mr. Bushey again served as manager of the business, and his salary increased to approximately $72,000 per year. Mr. O'Donnell has never taken an active role in the operation of the business. He does not regularly review the books and records of the business, give any direction to Mr. Bushey or Ms. De La Fuente regarding the operation of the business, or get involved in day-to-day business operations. Mr. O'Donnell's main concern is that Alameda Assets is current on all taxes because of his pass through tax liability. His accountant ensures that all of Alameda Assets' taxes are timely paid.
At the § 341(a) meeting of creditors, Mr. Bushey testified under oath that his business was taken back by U.S. Bank. When asked whether U.S. Bank repossessed the assets of the business, Mr. Bushey confirmed that it did. Mr. Bushey testified further at the § 341(a) meeting that U.S. Bank required him to sell the assets. Mr. Bushey also testified that he and Mr. Dugger were not friends. At a subsequent deposition, Mr. Bushey clarified that he and Mr. Dugger had been friends before the sale of Sun Center to Alameda Assets, but that after the sale their friendship had soured.
Mr. Bushey submitted to an examination under Fed. R. Bankr. P. 2004 (the "Rule 2004 Exam") on June 5, 2015. At the Rule 2004 Exam, Mr. Bushey testified under oath that he had nothing to do with the $30,000 payment to U.S. Bank, had nothing to do with the transaction involving the sale of Sun Center's assets to Alameda
Mr. Bushey also falsely testified under oath that he was not involved in the sale of Alameda Assets to Mr. O'Donnell. He testified at the Rule 2004 Exam that he knew of no reason why the note signed by Charles O'Donnell in favor of Alameda Assets was released for $1,746, and that he had nothing to do with the release of the note for $1,746. At a subsequent deposition, Mr. Bushey admitted that he gave the $1,746 to Mr. Dugger. It is clear from Mr. Bushey's false and inconsistent statements made under oath at his Rule 2004 Exam and in deposition testimony that Mr. Bushey wanted to hide from his creditors his participation in the sale of Sun Center to Alameda Assets and the sale of the interests in Alameda Assets to Mr. O'Donnell. He concealed his participation in these transactions because he did not want B & B, the Ashcrafts and the Cronks to find out about it.
Mr. Bushey did not list the SBA as a creditor or otherwise list his SBA guaranty in his Schedules. Nor did Mr. Bushey schedule the Ashcrafts, Cronks, or B & B as creditors. Instead, Mr. Bushey identified B & B and "Ashcraft and Cronk" as co-debtors on Schedule H. "Aschraft & Cronk" and B & B were included on the creditor mailing list care of The Chappell Law Firm. Mr. Bushey formed a business entity in 2013 called DELAFUENTE/BUSHEY, L.L.C. See Exhibit 201. He did not list his interest in DELAFUENTE/BUSHEY, L.L.C. in his Schedules or Statement of Financial Affairs. He considered that entity a "place holder."
On Schedule B, Mr. Bushey disclosed that he was the 100% owner of Sun Center, but that the business closed in December 2013. Mr. Bushey listed income from Solarius Consulting for 2015 and 2014 on his SOFA, Item 1 — Income from employment or operation of business. In actuality, Alameda Assets employed him during those years. Mr. Bushey testified that he considered Solarius Consulting a "d/b/a" of Alameda Assets.
Line 10 of the SOFA directs the debtor to list all transfers of property (other than in the ordinary course of business) made within two years before the date of the commencement of the bankruptcy case. Mr. Bushey checked the box "None" in Line 10. Mr. Bushey did not disclose the sale of his 2008 GMC Truck in response to Line 10. In his mind, even though the 2008 GMC Truck was titled in his name, Sun Center paid for the truck and the truck was used for business purposes. He considered it an asset of the business.
On Schedule I, Mr. Bushey listed a contribution of $2,800 from his girlfriend, Cecelia de La Fuente as part of his monthly income. He also identified Ms. De La Fuente as a dependent. Mr. Bushey did not include Ms. De La Fuente's monthly expenses on Schedule J.
Mr. Bushey filed a proof of claim in the Vaughan Company, Realtors ("VCR") bankruptcy case. He did not list that claim on Schedule D.
Bankruptcy affords debtors a way to "reorder their affairs, make peace with their creditors, and enjoy `a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.'" Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 S.Ct. 1230 (1934)). Because of this "fresh start" policy, "[e]xceptions to discharge are to be narrowly construed, and ... doubt is to be resolved in the debtor's favor." Affordable Bail Bonds, Inc. v. Sandoval (In re Sandoval), 541 F.3d 997, 1001 (10th Cir. 2008) (quotation marks and citation omitted).
Denial of discharge is a particularly harsh penalty because it prevents a debtor from discharging any pre-petition debts.
Plaintiffs and the United States Trustee request the Court to deny Mr. Bushey's discharge under § 727(a)(4). Under that section, a debtor's discharge may be denied upon a finding that "the debtor knowingly and fraudulently, in or in connection with the case ... made a false oath or account." 11 U.S.C. § 727(a)(4). "A debtor's petition, schedules, statement of financial affairs, statements made at a 341 meeting, testimony given at a Federal Rule of Bankruptcy Procedure 2004 examination, and answers to interrogatories all constitute statements under oath for purposes of § 727(a)(4)." Freelife Int'l, LLC v. Butler (In re Butler), 377 B.R. 895, 922 (Bankr. D. Utah 2006) (internal quotation marks and citation omitted).
A false oath is material "`if it bears a relationship to the bankrupt's business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.'" United States Trustee v. Garland (In re Garland), 417 B.R. 805, 814 (10th Cir. BAP 2009) (quoting Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 618 (11th Cir. 1984)).
Because a debtor is unlikely to admit to an intention to defraud, the Court may infer the debtor's fraudulent intent from the surrounding facts and circumstances. Calder, 907 F.2d at 955-56 (observing that "the debtor will be the only person able to testify directly concerning his intent and he is unlikely to state that his intent was fraudulent[,]" and stating that `[t]herefore, fraudulent intent may be deduced from the facts and circumstances of a case.") (citations omitted).
Mr. Bushey testified under oath at the § 341(a) meeting of creditors that his business was taken back by U.S. Bank and that U.S. Bank required him to sell the
Although Mr. Bushey's testimony at the § 341(a) meeting of creditors falls short of the required standard for denial of discharge, his subsequent false testimony at his Rule 2004 Exam and at subsequent depositions regarding his role in the transactions involving the sale of his business warrants the denial of Mr. Bushey's discharge under 11 U.S.C. § 727(a)(4).
Mr. Bushey testified under oath at his Rule 2004 Exam that he had nothing to do with the payment of $30,000 to U.S. Bank and had nothing to do with the transaction involving the sale of Sun Center's assets to Alameda Assets. He falsely testified that Mr. Dugger paid the $30,000 purchase price when, in fact, Mr. Bushey provided the funds for the asset sale to Alameda Assets. He made Sun Center's sale of assets to Alameda Assets appear to be an arm's length transaction to deceive U.S. Bank so it would release its lien for $30,000. Mr. Bushey funded the $30,000 purchase price for the sale of Sun Center's assets to Alameda Assets from funds he obtained from the 2008 GMC titled in his name. He put the funds in his girlfriend's bank account, then withdrew the cash and put it in an envelope so that it would not appear that he was the source of the funds. Mr. Bushey also gave false deposition testimony under oath that he was not involved in the sale of the membership interests in Alameda Assets to Mr. O'Donnell. Yet he introduced Mr. O'Donnell to Mr. Dugger and, once again, provided the purchase price with his own funds.
Mr. Bushey concealed his role in these transactions because he did not want his creditors, especially B & B, the Ashcrafts, and the Cronks, to find out that he provided the purchase price in both transactions. By falsely testifying that he was not involved and did not know where Mr. Dugger came up with the funds to purchase Sun Center's assets, Mr. Bushey intended to prevent creditors from understanding the true nature of his business transactions. These transactions made it look like Mr. Bushey did not own or control the business, yet Mr. Bushey continued to operate the business as if he were the owner. Even though the transactions occurred long before the petition date, these misstatements are material because they relate to Mr. Bushey's business dealings and the disposition of his assets. Mr. Bushey's blatantly false testimony at the Rule 2004 Exam and subsequent depositions was made with the intent to obfuscate his participation in these transactions in order to conceal his fraudulent scheme and potentially avoid objections to his discharge or to the dischargeability of particular debts.
"The fundamental purpose of § 727(a)(4) is to insure that the trustee and creditors have accurate information without having to conduct costly investigations." Davis v. Weddington (In re Weddington), 457 B.R. 102, 113 (Bankr. D. Kan. 2011) (citing Retz, 606 F.3d at 1196). By concealing his participation in these pre-petition business transactions, Mr. Bushey caused his creditors to have to dig out the truth.
Mr. Bushey's SOFA and Schedules contain some omissions and false statements. Yet some of these false statements and omissions resulted from mere inadvertence or inattention to detail and were not fraudulent. For example, Mr. Bushey's omission of his girlfriend's expenses on Schedule J despite listing her as a dependent is more likely unintentional than knowing and fraudulent.
Mr. Bushey testified that he did not disclose the sale of the 2008 GMC Truck in his SOFA because he believed Sun Center owned the asset. His testimony that he considered Solarius to be a d/b/a of Alameda Assets also provides some explanation for his misidentification of Solarius instead of Alameda Assets as the source of his income from 2014 and 2015. While not finding that these omissions and misstatements meet the knowing and fraudulent standard required for denial of discharge under § 727(a)(4), they lend further support for the Court's conclusion that Mr. Bushey's false testimony at the Rule 2004 Exam and depositions was both knowing and fraudulent. These misstatements and omissions are consistent with Mr. Bushey's fraudulent scheme to sell Sun Center's assets to Alameda Assets and obtain a release of the lien from U.S. Bank, yet continue to treat the business as if he were its owner. Mr. Bushey's undisclosed sale of his 2008 GMC Truck funded Sun Center's "sale" of assets to Alameda Assets which Mr. Bushey presented to U.S. Bank and his creditors as an arm's length transaction. Similarly, by listing Alameda Assets as his current employer on Schedule J, while identifying Solarius as the source of his income for the 2014 and 2015, Mr. Bushey obfuscated his pre-petition employment history and suggested that his current employer was unconnected to his prior employer. Further, Mr. Bushey took an artificially reduced salary and made his girlfriend manager so that on the petition date, the higher salary would be attributed to her. And because Mr. Bushey technically no longer held an interest in Sun Center or Alameda Assets on the petition date, he did not have to disclose an interest in those entities in his bankruptcy schedules.
A bankruptcy discharge is a privilege, not a right. Juzwiak, 89 F.3d at 427. See also, Wieland v. Gordon (In re Gordon), 509 B.R. 359, 370 (Bankr. N.D. Okla. 2014) ("`[A] discharge in bankruptcy is a privilege, not a right, and should only inure to the benefit of the honest debtor.'") (quoting Juzwiak, 89 F.3d at 427). Debtors "who `play fast and loose with their assets or with the reality of their
Mr. Bushey actively planned and participated in two sham transactions: 1) the sale of Sun Center's assets to Alameda Assets; and 2) the sale of the membership interests in Alameda Assets to Charles O'Donnell. In both transactions, Mr. Bushey provided the money for the purchase price. He then lied about his role in these transactions at the Rule 2004 Exam, and at subsequent depositions given in connection with this bankruptcy case in an effort to hide these business dealings from his creditors. These false statements, made under oath in connection with his bankruptcy case were knowing, fraudulent, and material, and warrant denial of discharge under § 727(a)(4).
Having denied Mr. Bushey's discharge under § 727(a)(4), the Court need not address Plaintiffs' remaining claims for denial of discharge under other subsections of § 727(a).
The Court will enter a separate order consistent with this Memorandum Opinion.