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Eifler v. Wilson & Muir Bank & Trust Co.

United States District Court, Sixth Circuit

January 28, 2014

THOMAS O'HEARN EIFLER, JR, Appellant,
v.
WILSON & MUIR BANK & TRUST COMPANY, Appellee.

MEMORANDUM OPINION AND ORDER

JOSEPH H. McKINLEY, Chief District Judge.

This matter is before the Court on an appeal from the Bankruptcy Court. The Appellant, Thomas Eifler, argues that the Bankruptcy Court erred when it denied Appellant's discharge pursuant to 11 U.S.C. § 727(a)(2), (a)(4) in the amount of $1, 701, 793.66 owed to Wilson & Muir Bank & Trust Company [DN 6]. Also before the Court is Appellee's Motion for Oral Argument [DN 17]. Fully briefed, these matters are ripe for decision. For the following reasons, the Court AFFIRMS the decision of the Bankruptcy Court. The Court DENIES Appellee's Motion for an Oral Argument [DN 17].

I. BACKGROUND

This appeal arises out of an adversary proceeding filed by Wilson & Muir Bank & Trust Company ("Bank"), the Appellee, against Thomas Eifler ("Debtor" or "Eifler"). In that action, the Bank sought to deny discharge to some or all of the debt owed to it by Debtor pursuant to 11 U.S.C. §§ 523(a)(2)(A)-(B), 523(a)(6), 727(a)(2)(A), 727(a)(4), 727(a)(5). Following a trial on the issues and multiple filings by both parties, the Bankruptcy Court denied discharge to Debtor for all debts owed to Bank pursuant to 11 U.S.C. § 727(a)(2), (a)(4). The Debtor appeals that decision.

A. Wilson & Muir's Loans to Debtor

In 2005 Eifler consulted with Ardis Greenamyer ("Greenamyer") about the possibility of starting a crane and hoist business. In the following year, Debtor formed several single-member limited liability companies and began the process of obtaining financing for these businesses through discussions with several lending institutions, including Wilson & Muir. On May 11, 2007, the Bank extended its first commercial loan to Debtor for $598, 242.00, which was secured by Eifler in his official capacity with the business and by him personally. Over the course of that year, the Bank extended two more commercial loans on June 7, 2007 and December 24, 2007 for $730, 152.15 and $351, 895.00, respectively.

In addition to commercial loans, Wilson & Muir and Debtor entered into a Home Equity Line of Credit ("HELOC") in the amount of $700, 000 on August 8, 2007. At the time, the title to the home located at 407 Jarvis Lane, Louisville, Kentucky ("Jarvis Lane Property") was held in Mr. Eifler's name alone. It was purchased in 1996 for approximately $245, 000, with a $45, 000 down payment and a $200, 000 mortgage on the property. In 1997, Mrs. Eifler used a $125, 000 inheritance to pay down a portion of the mortgage on the property, despite the fact that she held no title ownership in the property.

The terms of the HELOC allowed Mr. Eifler to quickly gain access to funds without needing to make any prior representations as to his financial condition. While the Bank generally required a loan officer to approve a large draw on the HELOC, the draw would be approved as long as it was within the credit limits of the loan. Mrs. Eifler did not sign the HELOC, [1] but she, along with Mr. Eifler, signed the Real Estate Mortgage Revolving Credit Account ("Mortgage") that granted the Bank a mortgage in the Eifler's home in order to secure the HELOC. Wilson & Muir extended the $700, 000 line of credit based upon an appraisal of the Jarvis Lane Property showing the property value at $1 million. On September 22, 2009, Mr. Eifler transferred the Jarvis Lane Property to Mrs. Eifler by deed. The Eiflers decided to transfer the property to Mrs. Eifler after consulting with James Brown, an estate planning attorney, who advised them to do so in order to equalize their marital assets. However, Wilson & Muir was not notified of the transfer of the property. In fact, a financing statement submitted by Debtor to Bank on May 11, 2010 listed the Jarvis Lane Property as belonging to both Mr. and Mrs. Eifler.[2] After the transfer of property to Mrs. Eifler, Mr. Eifler made payments on the HELOC in the amount of $372, 165.00.

B. Greenamyer Suit

At some point in early 2009 or late 2008, Eifler's relationship with Greenamyer soured. Greenamyer filed a lawsuit in Jefferson County Circuit Court on February 11, 2009, alleging, inter alia, a 50% ownership interest in Eifler's crane and hoist LLCs. Although Greenamyer initially filed the suit pro se, he eventually retained counsel who filed an amended complaint on his behalf. The parties did not resolve the lawsuit prior to Eifler filing for bankruptcy.

C. Final Draw on HELOC and Retention of Counsel

By October of 2010, Debtor indicated that his crane and hoist companies were suffering significant financial issues. On October 25, 2010, Mr. Eifler drew $340, 000 on the line of credit extended to him under the terms of the HELOC. This final draw took the remaining amount of available credit down to zero. That same day, Eifler took the full $340, 000 and deposited the funds in a joint account at Commonwealth Bank. Then, on November 2, 2010, Eifler transferred the full $340, 000 to a joint account at Fidelity Investments ("Fidelity"). This transfer occurred only a day after a meeting at Wilson & Muir in which Eifler informed the Bank that he was holding the $340, 000 at Commonwealth Bank.

On December 10, 2010, Eifler began seeking legal advice from Tom Frentz ("Frentz"), a bankruptcy attorney, to assist in liquidating business assets to pay lenders. Initially, it appears that Eifler hired Frentz as a workout specialist, not for the purpose of filing for bankruptcy. However, starting in January of 2011, the time sheets from Frentz's office reflected research on bankruptcy issues. Although Eifler contended that bankruptcy was not discussed until November of 2011, the Bankruptcy Court found his testimony not credible based on multiple entries on time sheets from Frentz's office that reflected research into bankruptcy issues. On January 27, 2011, Marie Fields, a paralegal in Frentz's office, recorded time for researching and drafting a memo on non-dischargeability issues for Eifler. Additionally, Frentz's time sheets reflected research on preference law and pre-payments on February 28, 2011, which was just three days after Wilson & Muir filed a collection action in Jefferson Circuit Court.

The $340, 000 from the final HELOC draw remained in a joint Fidelity account until March 4, 2011. At that time, Eifler had Fidelity split the money equally into two individual accounts, one of which was held by him and the other held by Mrs. Eifler.[3] According to Frentz's testimony, he perceived this split of the HELOC acceptable because he considered the funds to be marital property in which both Mr. and Mrs. Eifler had an equitable interest. Frentz's recommended splitting the Fidelity account at some point in January of 2011 even though Eifler did not do so until March. In between Mr. Frentz's advice and the actual splitting of the funds, Wilson & Muir filed a collection action against Eifler in Jefferson Circuit Court on February 23, 2011.

On May 3, 2011, Mr. Eifler transferred $41, 825, representing one-half of the Eifler's 2010 income tax refund, to Mrs. Eifler. A month later, on July 7, 2011, Eifler transferred $20, 000 to his sister-in-law out of his individual Fidelity account even though Mrs. Eifler's account contained ample funds to make such a transfer. On December 15, 2011, Eifler made two significant transfers. The first was to Mrs. Eifler for $28, 234.38, one-half of Mr. Eifler's paycheck. The second was to St. Xavier High School in the amount of $12, 000, which was a prepayment of tuition made nine months in advance. The following day, Eifler made another tuition prepayment to Sacred Heart Model School in the amount of $16, 900, which was also made nine months in advance. The final transfer on December 22, 2011, a week before filing bankruptcy, was to Mrs. Eifler for $3, 613.12, one-half of Mr. Eifler's paycheck. At the time Mr. Eifler filed for bankruptcy, he only had $22.04 in his individual Fidelity account and Mrs. Eifler had $103, 786.73 in her account.

D. Bankruptcy and Schedules and Statement of Financial Affairs

After filing for bankruptcy on December 29, 2011, Eifler submitted his Bankruptcy Schedules and Statement of Financial Affairs ("SoFA") on January 12, 2012. Prior to filing the Schedules and SoFA, Frentz stated that Mr. Eifler would have had about three or four opportunities to review all the information provided on the statements. The Bankruptcy Court summarized Frentz's process as follows:

(1) he first has clients fill out the documents in pencil, (2) the Schedules and SoFA were then typed up and reviewed by the client for errors, (3) errors would have been corrected and the documents would have been reviewed again by the client, and (4) finally, they would have been typed in final, at which time Frenz and the client would have gone over them together. Only after these steps had been taken would the Schedules and SoFA been filed.

(Mem., DN 7-1, at 27-28, ¶ 157).

Eifler's Schedule B (Personal Property) listed only a one-half interest in his Joint Commonwealth Bank account in the amount of $521. Eifler failed to list on either Schedule B or the SoFA his individual Fidelity account, a Forex.com investment account, [4] and a Wilson & Muir checking account.[5] In addition to failing to list certain accounts, Eifler's SoFA failed to identify several transfers made by him leading up to his filing of bankruptcy. The Bankruptcy Court identified two sections, Number 10 ("Other transfers, " transfers made within two years prior to filing for bankruptcy outside the ordinary course of business) and Number 7 ("Gifts, " transfers made within a year of bankruptcy), that Appellant left completely blank on the SoFA. Specifically, the Bankruptcy Court identified the following six transfers that should have been listed on Debtor's SoFA:

a. The March 29, 2011 transfer of approximately $177, 000 to Ashley;
b. The May 3, 2011 transfer of $41, 825.00 to Ashley;
c. The July 7, 2011 transfer of $20, 000.00 to the sister-in-law in Switzerland;
d. The tuition pre-payments of over $45, 000.00 made on December ...

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