Gepner v. Kidd (In re Kidd)

Summarized by Steven Mulligan , Coan, Payton & Payne, LLC
10 years 4 months ago

Citation:

Gepner v. Kidd (In re Kidd), Case No. KS-14-065 (BAP 10th Cir. October 23, 2015). Unpublished.

Tag(s):

Ruling:

Actual fraud must be found to deny discharge under section 727(a)(2) and to deny a discharge under section 727(a)(4), the court must be convinced that the debtor knowingly and fraudulently made a false oath or account in connection with the bankruptcy case.

Procedural context:

Plaintiff appealed the bankruptcy court’s denial of objections to debtor’s discharge under sections 727(a)(2) and (4) because plaintiff believed essentially that the bankruptcy court failed to find that debtor had actual intent to defraud. The BAP also found that plaintiff failed to establish that transfers made over a year before the petition date were non-dischargeable under the “continuous concealment” doctrine. The BAP affirmed reviewing findings of fact for clear error.

Facts:

Plaintiff advanced debtor’s husband funds to help run a gift store in Kansas. The store eventually went out of business and debtor and her husband executed an agreement promising to repay plaintiff the money. Debtor’s husband died and debtor received insurance proceeds and inherited other funds and property. The funds were deposited in an account owned by her son and daughter in law. The funds in the bank account were considered “family” money to be shared by debtor, her son and daughter with each having rights to a third of such funds. Over a year prior to the petition date, funds were moved around various bank accounts and an additional transfer was made to another account within the year prior to the petition date.

Judge(s):

Thurman, Jacobvitz, Hall (Jacobvitz)

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