Opinion
Case No.: 6:23-bk-01525-TPG Adv. Pro. No. 6:23-ap-00110-TPG
2024-04-11
IN RE: Haldun SENTURK, Debtor. NG Solutions, LLC, Plaintiff, v. Haldun Senturk, Defendant.
James J. Webb, Mitrani, Rynor, Adamsky & Toland, PA, Weston, FL, for Plaintiff. Christine S. Hansley, C.S. Hansley Law Firm, LLC, Rockledge, FL, for Defendant.
James J. Webb, Mitrani, Rynor, Adamsky & Toland, PA, Weston, FL, for Plaintiff. Christine S. Hansley, C.S. Hansley Law Firm, LLC, Rockledge, FL, for Defendant. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY FINAL JUDGMENT Tiffany P. Geyer, United States Bankruptcy Judge
THIS PROCEEDING is before the Court upon the Motion for Summary Final Judgment (the "Motion") filed by Plaintiff, NG Solutions, LLC. (Adv. No. 6:23-ap-00110-TPG, Doc. No. 11.) Pursuant to Local Rule 7001-1(k)(4)(F), the Plaintiff served the Motion by negative notice, informing the Defendant/Debtor, Haldun Senturk (the "Debtor"), that if he objects to the relief requested, he must file a response to the Motion within 21 days of service. (Id. at 1.) The Debtor did not file a response to the Motion. After reviewing the Motion, the Debtor's schedules, the Debtor's initial and amended statements of financial affairs, and the transcript from the Debtor's 2004 examination, the Court grants the Motion.
The Order cites documents filed in this proceeding as "Adv. No. 6:23-ap-00110-TPG," and documents filed in the Debtor's main bankruptcy case as "No. 6:23-bk-01525-TPG."
A court may take judicial notice of its own records. ITT Rayonier Inc. v. United States, 651 F.2d 343, 345 n.2 (5th Cir. Unit B July 20, 1981). The decisions of the United States Court of Appeals for the Fifth Circuit issued on or before September 30, 1981, are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).
I. FACTS AND PROCEDURAL HISTORY
The Plaintiff holds a judgment arising from a deficiency claim against the Debtor in connection with the Debtor's guaranty of a commercial loan obligation associated with Rockwood Enterprises, Inc. ("Rockwood") (Adv. No. 6:23-ap-00110-TPG, Doc. No. 1 ¶¶ 2-4; Doc. No. 1-1) after Rockwood's property was sold at a foreclosure sale for an amount less than the debt. The Plaintiff acquired the judgment against the Debtor for the deficiency by assignment on or about April 22, 2022. (Adv. No. 6:23-ap-00110-TPG, Doc. No. 1-1 at 1-2.) Plaintiff commenced post-judgment discovery, which was stayed when the Debtor filed his Chapter 7 case in this Court on April 24, 2023. (No. 6:23-bk-01525-TPG, Doc. No. 1.)
When the Debtor filed his schedules and statement of financial affairs ("SOFA"), he did not initially disclose his ownership of a credit union account (the "7991 Account"), a Robinhood investment account, a sum of cash kept in his home (the "Cash Reserves"), or any connection to or ownership of interests in Golden Star Food, Inc. ("GSFI"). (No. 6:23-bk-01525-TPG, Doc. No. 4 at 5-7, 29, Part 11.) However, on May 23, 2023, the day the Chapter 7 trustee conducted the Debtor's Section 341 meeting of creditors, the Debtor filed an amended SOFA, disclosing he served as an officer, director, or managing executive of GSFI, a grocery store/gas station, and that GSFI was administratively dissolved on September 23, 2022. (No. 6:23-bk-01525-TPG, Doc. No. 8 at 6, Part 11.) At no time did the Debtor amend his schedules or SOFA to disclose the 7991 Account, the Robinhood account, or the Cash Reserves.
"Robinhood is an investment platform offering commission-free trading of stocks, ETFs, cryptocurrency, and options—all through a mobile app or website." Kevin Mercadante, Robinhood Review: Pros, Cons, and If It's The Right Platform for You, TimeStamped (updated Feb. 14, 2024), https://time.com/personal-finance/article/robinhood-review/.
On August 10, 2023, Plaintiff conducted a 2004 examination of the Debtor during which the Debtor testified to or otherwise made clear the following information.
• The Debtor transferred money into the 7991 Account one month pre-petition in March 2023 and out of the 7991 Account one month post-petition in May 2023. (No. 6:23-bk-01525-TPG, Doc. No. 30-1 at 102.)
• He opened the Robinhood account in January 2019 (id. at 54); the account still existed on the petition date and the Debtor regularly received account statements and had the Robinhood application on his cellular phone at the time of his 2004 examination (id. at 54-57, 107).
• He has no records reflecting the amount of Cash Reserves he held at various times in his home. (Id. at 91-95.)
• He did not disclose the Cash Reserves on his schedules. (Id. at 95.)
• On the petition date he did not recall the amount of Cash Reserves in his home; it could be between "5-, $600" or also "maybe none[;]" he did not know because he did not check. (Id. at 95-96.)
• Of the Cash Reserves left on the date of the 2004 examination, he testified there was "[p]retty much none" but also "[m]aybe 500 bucks that I know." (Id. at 95.)
• In March 2023, he deposited $3,000 of the Cash Reserves into one of his accounts. (Id. at 91-96, 105.)
• He transferred his interests in GSFI to his cousin but there are no records evidencing the transaction (id. at 29, 40), he was a signatory on GSFI's operating account but has no bank account statements (id. at 37-38) and does not recall when he closed GSFI's accounts (id. at 38) or his last involvement with GSFI (id. at 39), and there were no written operating agreements relating to GSFI (id. at 39-41).
• He transferred a piece of property to his brother, but the terms of the transaction were not disclosed. (Id. at 63-66.)He also represented to his counsel that the 7991 Account was closed, but then produced bank statements for the 7991 Account demonstrating that it was not closed, after being pressed by Plaintiff's counsel who discovered the account in examining statements the Debtor produced for another account, which reflected transfers involving the 7991 Account. (Adv. No. 6:23-ap-00110-TPG, Doc. No. 11-4 at 2, 6, 10-11, 15.) And when the Debtor did produce statements, production was incomplete requiring further follow up. (Id. at 2.)
On September 6, 2023, Plaintiff filed a Complaint initiating this adversary proceeding against the Debtor, asserting four claims seeking to deny the Debtor a discharge: Count I, 11 U.S.C. § 727(a)(2) Fraudulent Transfer and Continuing Concealment; Count II, 11 U.S.C. § 727(a)(3) Failure to Maintain Records; Count III, 11 U.S.C. § 727(a)(4) False Statements Under Oath; and Count IV, 11 U.S.C. § 727(a)(5) Failure to Explain Loss of Assets. (Adv. No. 6:23-ap-00110-TPG, Doc. No. 1 at 6-10.) In the Motion, Plaintiff argues that it is entitled to summary judgment on the first three counts of the Complaint. (Adv. No. 6:23-ap-00110-TPG, Doc. No. 11.) As noted above, the Debtor did not file a response to the Motion, despite the standard language in the negative notice provision advising that the Motion may be granted in the absence of a response.
The Debtor filed an Answer to the Complaint generally asserting barebones denials and boilerplate affirmative defenses. (Adv. No. 6:23-ap-00110-TPG, Doc. No. 5.)
The Motion does not address Count IV, so the Court presumes the Plaintiff did not intend to seek a summary judgment in connection with the Debtor's failure to explain loss of assets pursuant to 11 U.S.C. § 727(a)(5).
II. LAW AND ANALYSIS
Federal Rule of Bankruptcy Procedure 7056 makes Federal Rule of Civil Procedure 56(a) applicable to bankruptcy proceedings. Rule 56(a) states, "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The party moving for summary judgment has the burden of establishing its right to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L.Ed. 2d 265 (1986); In re Patel, No. 6:18-BK-00036-KSJ, 2021 WL 4900792, at *2 (Bankr. M.D. Fla. Oct. 20, 2021). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986). A genuine issue exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S. Ct. at 2511, 91 L.Ed. 2d 202. If the movant meets its burden, then the burden shifts to the opposing party to demonstrate a genuine issue of material fact. Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017). "At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776, 167 L.Ed. 2d 686 (2007) (citing Fed. R. Civ. P. 56(c)).
Plaintiff asserts that it is entitled to summary judgment under three subsections of 11 U.S.C. § 727(a). (Adv. No. 6:23-ap-00110-TPG, Doc. No. 11 at 11-18.) The court may deny discharge under § 727(a) upon several bases, even if "the particular debts owed are themselves not the product of fraud or of a type excepted from discharge under § 523." Law Offices of Dominic J. Salfi, P.A. v. Prevatt (In re Prevatt), 261 B.R. 54, 58 (Bankr. M.D. Fla. 2000). The party objecting to discharge has the burden "to bring forward credible evidence establishing that a debtor may be denied discharge by the court based on § 727(a)." Id. If that burden is met, the debtor then must "bring forward enough credible evidence to dissuade the court from exercising its discretion to deny the debtor discharge based on the evidence presented by the objecting party." Id. "A finding . . . under any single subsection of section 727 is sufficient to deny . . . a discharge." Protos v. Silver (In re Protos), 322 F. App'x 930, 932-33 (11th Cir. 2009).
In the Eleventh Circuit, "Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority." 11th Cir. R. 36-2.
A. 11 U.S.C. § 727(a)(2) - Count I
In Count I, Plaintiff asks that the Debtor be denied discharge under 11 U.S.C. § 727(a)(2) because the Debtor transferred and concealed property, intending to hinder, delay or defraud creditors. (Adv. No. 6:23-ap-00110-TPG, Doc. No. 1 ¶¶ 8-11.) To prevail under Count I, Plaintiff must show "(1) that the act complained of was done within one year prior to the date the petition was filed, (2) with actual intent to hinder, delay, or defraud a creditor, (3) that the act was that of the debtor, and (4) that the act consisted of transferring, removing, destroying, or concealing any of the debtor's property." Jennings v. Maxfield (In re Jennings), 533 F.3d 1333, 1339 (11th Cir. 2008). Plaintiff has the burden of showing actual fraudulent intent. Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 306 (11th Cir. 1994). "Since it is unlikely that a debtor will admit that he intended to hinder, delay, or defraud his creditors, the debtor's intent may be established by circumstantial evidence or inferred from the debtor's course of conduct." In re Jennings, 533 F.3d at 1339.
Here, the Debtor failed to disclose the 7991 Account, the Robinhood account, and the Cash Reserves. (No. 6:23-bk-01525-TPG, Doc. No. 4 at 5-6.) The Debtor made transfers into and out of the 7991 Account shortly before and shortly after filing for bankruptcy (No. 6:23-bk-01525-TPG, Doc. No. 30-1 at 102) and deposited $3,000 from his Cash Reserves into an account one month prior to the petition date (Id. at 91-96, 105). He opened the Robinhood account in January 2019, the account was still open on the petition date, and the Debtor was still receiving account statements post-petition. (Id. at 54-57, 107.) These facts demonstrate the Debtor was cognizant of his 7991 Account, his Robinhood account, and his Cash Reserves, but concealed them; he did not amend his schedules to include these assets at any time and only admitted to owning them during his 2004 examination. It is also unclear when and under what terms the Debtor transferred a piece of property to his brother.
The Bankruptcy Code does not demand an infallible memory. Indeed, a "voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of course at any time before the case is closed." Fed. R. Bankr. P. 1009(a). The principles of permitting amendment as a matter of course and granting bankruptcy courts broad discretion to reopen a closed case to administer an asset not previously scheduled "recognize that omissions occur and liberally allow amendment and correction of disclosures . . . ." Slater v. United States Steel Corp., 871 F.3d 1174, 1187 (11th Cir. 2017); In re Allen, 454 B.R. 894, 897 (Bankr. S.D. Fla. 2011) ("Debtors have an almost unfettered right to amend their schedules while their case remains open."). Unfortunately, here the Debtor took no steps to correct the nondisclosures.
Further, the Debtor was not truthful about the 7991 Account. The Debtor told his attorney the account was closed, but subsequently produced bank statements clearly demonstrating it was not closed. (Adv. No. 6:23-ap-00110-TPG, Doc. No. 11-4 at 10.) The Debtor produced the bank statements only after further inquiry from Plaintiff's counsel who only discovered the account when examining statements the Debtor produced for another account which reflected transfers involving the 7991 Account. (Id. at 2, 6, 10-11, 15.) This, coupled with the proximity in time to the petition date of transfers involving the 7991 Account and the Cash Reserves, supports the inference that the Debtor intended to hinder, delay, or defraud his creditors. He concealed assets he knew he had and misrepresented the status of his 7991 Account. See In re Protos, 322 F. App'x at 933 ("While a single, isolated instance of non-disclosure or improper disclosure may not support a finding of fraudulent intent, we find that the repeated nature of non-disclosures and improper disclosures made by the Appellant in his schedules and SOFA supports the bankruptcy court's finding of fraudulent intent.").
On December 12, 2023, the Court entered an order granting the joint stipulation filed by the Debtor and his counsel granting counsel leave to withdraw. (No. 6:23-bk-01525-TPG, Doc. No. 28.)
The Debtor did send a subsequent email to his counsel regarding the 7991 Account stating, "I do not know, why I thought I closed the account." (Adv. No. 6:23-ap-00110-TPG, Doc. No. 11-4 at 15-16.) Considering the timing and frequency of transfers involving this account and the fact that the Debtor had a debit card for the account in his wallet at the 2004 examination (No. 6:23-bk-01525-TPG, Doc. No. 30-1 at 101), the Debtor's statement that he thought he closed the account lacks credibility.
The Debtor's 2004 examination testimony further reflects that he was uncooperative and did not take seriously the obligations of candor incumbent upon every debtor seeking a discharge. Bankruptcy exists to relieve the honest but unfortunate debtor of the burdens of debt so that they may move forward with a fresh start. See Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 304 (11th Cir. 1994). In exchange, a debtor must approach his or her disclosure obligations with the utmost of care and good faith. See In re Sofro, 110 B.R. 989, 991 (Bankr. S.D. Fla. 1990) ("A debtor has a paramount duty to consider all questions posed on a statement or schedule carefully and see that the question is answered completely in all respects."). In this case, the Court concludes the Debtor concealed assets with the intent to hinder, delay, or defraud his creditors within the year prior to filing his Chapter 7 case and thus forfeited a discharge pursuant to 11 U.S.C. § 727(a)(2).
The Debtor's 2004 examination testimony demonstrates that he cared little about providing full and accurate disclosures. The following excerpts are just a few of multiple instances demonstrating his general recalcitrance:
A: I'm just getting tired of these kind of questions because we are not going anywhere.(No. 6:23-bk-01525-TPG, Doc. No. 30-1 at 57-58.)
Q: We are going somewhere, sir.
A: No. We [are] not going anywhere. Because it [is] just taking my time and your time. It doesn't go anywhere. You just asked me if I have any money. No, I don't. You cannot come after me. I have no money. Thank you.
Q: All right. We have talked about Robinhood. Do you have any other brokerage accounts?
A: No. I just said one. That's it. Are you trying to say that I'm hiding something? You don't know me. Thank you.
Q: I will answer all your questions after the deposition, sir. Until then, you can stop asking.
A: Your questions are going nowhere.
Q: Hold on, sir. You're just going on and on. I'm waiting for you to be polite. You are making it —(Id. at 94-95.)
A: I cannot be polite because this is just wasting your time, my time, her time.
A: I'm just saying that you are just wasting the time. She has got to go. I got to go.(Id. at 108.)
Q: It would go much faster if you just answered the question.
A: I did answer the question. Nonsense question.
B. 11 U.S.C. § 727(a)(3) - Count II
In Count II, the Plaintiff seeks to deny the Debtor's discharge pursuant to 11 U.S.C. § 727(a)(3), alleging he unjustifiably "concealed, . . . or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor's financial condition or business transactions might be ascertained . . . ." A prima facie case under § 727(a)(3) requires the Plaintiff to demonstrate three elements:
(1) that the debtor failed to keep or preserve adequate records, (2) that such failure makes it impossible to ascertain the debtor's financial condition and material business transactions, and (3) . . . that the debtor failed to keep records for a purpose—namely to avoid having to surrender such records for discovery to a suspicious creditor or trustee.Coady v. D.A.N. Joint Venture, L.P., No. 08-81332-CIV, 2009 WL 9041189, at *12 (S.D. Fla. Apr. 1, 2009), aff'd sub nom. In re Coady, 588 F.3d 1312 (11th Cir. 2009); but see In re Hahn, 362 B.R. 542, 547 (Bankr. S.D. Fla. 2007) (concluding there is no requirement to prove that the failure to keep records must be purposeful to deny discharge under § 727(a)(3)). If the "debtor failed to keep enough records to corroborate [his] explanation for conduct from which the objecting party has created an inference of fraudulent intent through evidence of its own[,]" then discharge will be denied. In re Prevatt, 261 B.R. at 59.
"A plaintiff meets its initial burden under § 727(a)(3) by showing that the records are insufficient to ascertain the debtor's financial condition and business transactions." In re Ballinger, No. 8:16-BK-07755-RCT, 2018 WL 11206151, at *7 (Bankr. M.D. Fla. Sept. 28, 2018). If this burden is met, "the debtor must justify the failure to keep records. A blanket assertion that the records are sufficient or statements that it was the normal practice of the debtor not to keep records does not satisfy the debtor's burden." Id. at *8. "Subsection (a)(3) does not contain a fraudulent intent requirement." In re Protos, 322 F. App'x 930, 935 (11th Cir. 2009).
Here, the Plaintiff met its burden of demonstrating that the Debtor failed to keep adequate records, and that the records the Debtor did produce are insufficient to ascertain the Debtor's true financial condition. The Debtor testified that he held thousands of dollars in Cash Reserves, dissipated these funds over time (No. 6:23-bk-01525-TPG, Doc. No. 30-1 at 93-94, 97), but lacked any records regarding the total amount of Cash Reserves at any point (id. at 93). Perhaps most critically, he did not bother to verify the amount of Cash Reserves on hand as of the petition date in order to record it on his schedules. (Id. at 95-96.)
Standing in isolation, the lack of documentation reflecting the amount of Cash Reserves the Debtor possessed at any given time might not be sufficient to meet Plaintiff's burden under § 727(a)(3). But in addition to this lack of accounting, the Debtor had no documentation regarding GSFI. Despite being a signatory on GSFI's operating account, the Debtor testified that he had none of GSFI's bank account statements. (Id. at 37-38.) He transferred his interests in GSFI to his cousin but there are no records evidencing the transaction or whether there was any consideration for the transfer. (Id. at 29, 40.) Finally, the Debtor testified that there were no written operating agreements relating to GSFI. (Id. at 39-41.) Thus, it is difficult to impossible to ascertain and verify the circumstances surrounding the operations and transfer of this entity.
Plaintiff met the burden of demonstrating that the Debtor did not retain adequate records and that the records the Debtor did produce are insufficient to determine the Debtor's true financial condition. Because the Debtor did not respond to the Motion, he did not provide any information which could justify or explain the failure to maintain records. Plaintiff is therefore granted summary judgment under § 727(a)(3) that the Debtor is not entitled to a discharge.
C. 11 U.S.C. § 727(a)(4) - Count III
Section 727(a)(4), the basis for Count III, requires withholding of discharge when "the debtor knowingly and fraudulently, in or in connection with the case . . . made a false oath or account . . . or . . . withheld from an officer of the estate . . . any recorded information, including books, documents, records, and papers, relating to the debtor's property or financial affairs." In re Chalik, 748 F.2d 616, 618 (11th Cir. 1984). A false oath must be material to bar discharge; materiality is evaluated against the debtor's business dealings and property transactions. Id. "An omission from the debtor's SOFA or schedules may constitute false oaths under this provision." Id. at 618 & n. 3. "Although a single omission is generally insufficient to support an objection to discharge, a series of omissions may create a pattern which demonstrates the debtor's reckless disregard for the truth." In re Tretick, No. 3:04-AP-395, 2006 WL 8463182, at *3 (Bankr. M.D. Fla. Jan. 4, 2006) (presumption of fraudulent intent demonstrating a reckless disregard for the truth existed where debtor failed to provide a complete list of her assets including cash and joint assets).
A false oath must be proven by a preponderance of the evidence to be both fraudulent and material. Swicegood v. Ginn, 924 F.2d 230, 232 (11th Cir. 1991). If these elements are established with credible evidence, then "the burden shifts to the debtor to convince the court not to deny discharge based on the objecting party's evidence." In re Phillips, 476 F. App'x 813, 816 (11th Cir. 2012). To deny discharge under § 727(a)(4), there must be a finding based on extrinsic evidence that fraud exists, i.e., that the debtor acted with actual intent. In re Unger, 333 B.R. 461, 465 (Bankr. M.D. Fla. 2005). "[A] debtor's intent to hinder the trustee and creditors may be inferred solely from a debtor's false and misleading testimony which effectively obscures the assets of the estate." In re Prevatt, 261 B.R. at 59.
The evidence before the Court reflects a series of omissions by the Debtor. On the schedules, filed with his petition and signed under penalty of perjury, the Debtor failed to disclose the 7991 Account, the Robinhood account, and the Cash Reserves. (No. 6:23-bk-01525-TPG, Doc. No. 4 at 5-6, 23.) The Debtor admits he transferred money into the 7991 Account in March 2023 and out of it in May 2023—one month before and one month after filing for bankruptcy. (No. 6:23-bk-01525-TPG, Doc. No. 30-1 at 102.) The Robinhood account was opened in January 2019 (id. at 54), and there is a Robinhood statement from July 2023 (id. 54-57, 107). Regarding the Cash Reserves, the Debtor stated in his 2004 examination that in March 2023, he deposited $3,000 from the Cash Reserves. (Id. at 91-96, 105.) Although the Debtor made these transactions around the time he filed bankruptcy, he did not disclose these assets or transfers as required, and this failure is material because each of these assets constitutes property of the estate subject to administration for the benefit of creditors.
In addition to failing to disclose assets, the Debtor claimed either having no knowledge or no memory throughout his 2004 examination. For example, the phrase "don't know" appears in the examination 83 times, and the phrase "don't remember" appears 67 times. (Id. at 9-111.) The information the Debtor states that he does not know or remember includes:
During the 2004 examination, Plaintiff's counsel asked the Debtor if he had taken "any kind of medication this morning that would impair [his] ability to think or recollect[,]" and the Debtor answered that he had not. (No. 6:23-bk-01525-TPG, Doc. No. 30-1 at 7-8.)
• his wife's maiden name (id. at 10);
• the month in which he was married, although he can narrow down the year to 1992 or 1993 (id.);
• the Debtor's connection to his cousin's business owning gas stations, even though the Debtor ran one of his businesses (id. at 17);
• the last business entity the Debtor owned an interest in (id. at 67);
• whether he owned the business entity that operated a Winter Haven gas station (id. at 67);
• why he initially withheld from production a second batch of bank statements (id. at 74);
• who various creditors are that he listed on his schedules (id. at 75-79);
• whether he is still a certificate holder for an AB operator for inground tanks and gas station distribution (id. at 83);
• the maximum amount that was in the Cash Reserves at any point in time (id. at 94-95); and
• why he did not amend his schedules to report the 7991 Account in May when he made a transfer from it to his other account (id. at 103).
The series of omissions, plus the Debtor's purported inability to know or recall substantial information, supports the conclusion that the Debtor possessed fraudulent intent. Because the Debtor did not respond to the Motion, he failed to rebut the presumption of fraudulent intent, and Plaintiff is entitled to judgment as a matter of law that the Debtor's discharge must be denied pursuant to § 727(a)(4) due to the Debtor's false oath.
III. CONCLUSION
The Debtor's reckless disregard with respect to record keeping and disclosure in this Chapter 7 case gives rise to an inference of fraud. Because the Debtor failed to respond to the Motion, he presented no evidence overcoming this inference. The record before the Court thus demonstrates no genuine issue of material fact, and Plaintiff is entitled to judgment as a matter of law that the Debtor's discharge should be denied pursuant to § 727(a)(2), (a)(3), and (a)(4).
Accordingly, it is
ORDERED:
1. The Motion (Doc. No. 11) is GRANTED;
2. A summary final judgment is entered as to Counts I, II, and III of the Complaint.
ORDERED.