After an evidentiary hearing, the court denied a creditor’s complaint objecting to discharge and dischargeability. The debtors are the only two members in an LLC that once owned and operated golf equipment retailer with five locations in Nebraska and Iowa. The plaintiff and his business loaned money to the LLC because the plaintiff was close friends with the debtors’ family. Regular payments were made on the loan until the LLC’s cash-flow issues intensified. The debtor provided financial documentation to the plaintiff and kept him informed about store closings and liquidations. As store locations were sold, the LLC paid operating expenses, a sales tax debt, and some unsecured debts. The plaintiff thereafter filed a state-court replevin and collection action and the LLC turned over the assets remaining after the store liquidations. The debtors then filed this Chapter 7 petition.

With regard to the plaintiff’s claim under § 727(a)(2) for transfer or concealment of assets, the court ruled that because the assets at issue belonged to the LLC and not to the debtors, the creditor’s claim had no basis. Even if the assets were property of the estate, the creditor’s claim was based on a difference in value between amounts stated in pre-petition asset summaries provided to the creditor and the amounts actually turned over to the creditor as part of the replevin action. As the bankruptcy court noted, “[t]he plaintiff is not the first creditor secured primarily by inventory and equipment to find itself holding a significant deficiency claim on liquidation.” There also was no evidence of the debtors’ intent to hinder, delay, or defraud when they moved the LLC’s remaining inventory into storage. The creditor did not request that any of the assets be turned over to him; instead, he waited and then filed a replevin action.

With regard to the plaintiff’s claim under § 727(a)(3) for failure to preserve records, he did not establish that he requested any records, any records were destroyed, or existing records were inadequate. The evidence indicated the LLC’s business records were available and accessible.

With regard to the plaintiff’s claim under § 727(a)(4)(A) that the debtors made false oaths of material facts in connection with the bankruptcy case, the plaintiff did not establish a pattern of false statements. Omissions in the bankruptcy schedules were not knowingly and fraudulently made and were subsequently corrected. Discrepancies in asset values were attributable to the passage of time between the preparation of old financial statements and current bankruptcy schedules.

With regard to the plaintiff’s claim under § 727(a)(5) alleging the failure to satisfactorily explain the loss or deficiency of assets, the assets at issue belonged to the LLC, not to the debtors, so the debtors were under no obligation to explain a perceived loss or deficiency. Even if the assets belonged to the debtors, the plaintiff did not establish a loss or deficiency. The LLC’s assets were either turned over to creditors, recovered by third parties, held by landlords, or turned over to the plaintiff.

With regard to the plaintiff’s claim under § 523(a)(2)(A) alleging that the debtors falsely represented he would have a first-position lien on the LLC’s assets in exchange for one of the loans made, the evidence does not establish the necessary elements. First, there is no evidence the debtor represented that he could grant the plaintiff’s request for a first-position lien. Even if he did make such a representation, it is not a misrepresentation simply because the intended result did not happen. The evidence indicates that at the time the security agreement was signed, the debtor believed the plaintiff could be given a first-position lien. Moreover, the plaintiff did not rely on any such representation and made the loan without concern for collateral because he wanted to help the debtor.

With regard to the plaintiff’s claim under § 523(a)(2)(B) alleging that the debtors provided a false financial statement with intent to deceive, he did not establish an intent to deceive. In addition, the plaintiff’s loans were not made in reliance on the financial statements, and there is no evidence the financial statements were materially false. Any discrepancy was due to a flawed comparison of values.

Finally, with regard to the plaintiff’s claim under § 523(a)(6) alleging willful and malicious injury because the debtors paid unsecured creditors instead of the plaintiff, there was no evidence the debtors acted maliciously. Malice is not necessarily inferred from a debtor’s conduct of using proceeds to try to keep a business afloat. Here, the debtors tried to keep the last store open in order to maximize recovery for the plaintiff, among others. The plaintiff was kept apprised of the debtors’ plans and either agreed or acquiesced to them. At most, there was a breach of a security agreement, but it did not rise to the level of a willful and malicious injury. Accordingly, judgment was entered in favor of the defendants on the complaint.

The court dismissed the debtor’s fourth Chapter 13 case for cause and barred him from refiling for 180 days. In each of the cases, the debtor failed to timely file schedules, the statement of financial affairs, and a plan. His intent in filing bankruptcy is to delay or prevent his former wife from collecting a property equalization judgment awarded to her as part of the marital dissolution. This delay is prejudicial to creditors and is cause for dismissal under § 1307(c).

Cause for dismissal also exists because the debtor filed the bankruptcy petition in bad faith, failing to accurately state his debts and expenses, misrepresenting his assets, failing to comply with court orders, and attempting to manipulate the Bankruptcy Code.

Finally, the debtor is not an eligible Chapter 13 debtor because his only claimed income is a monthly Social Security payment of $1,000, which he does not commit to paying into a plan of reorganization. Even if the debtor were to fund his plan with Social Security income, it is insufficient to pay the $320,000 judgment owed to his former wife and his monthly $1,888 child support payments, so a plan would not meet the requirements of § 1322(a).

Because the debtor is a serial filer who consistently fails to comply with his obligations under the Bankruptcy Code, cause exists to bar the debtor from filing a bankruptcy petition for 180 days.

The court granted the trustee’s motion for turnover of a motor vehicle titled in the debtors’ names but allegedly owned by the debtor’s sister. While the debtors argued that the court should discern a resulting trust in favor of the sister because she paid for the vehicle, the court found that Nebraska statutory law is clear and unambiguous in not recognizing a resulting trust in a motor vehicle.

The court denied summary judgment on the United States Trustee’s complaint seeking a denial of discharge under §§ 727(a)(2), (a)(4)(A), and (a)(4)(D). While the plaintiff proved that the debtor failed to disclose several bank accounts, gave incorrect balances for accounts that were disclosed, and failed to disclose a number of cash transfers, under circumstances that lead to a presumption of intent to deceive, the debtor should be given the opportunity to rebut that presumption at trial. Likewise, the plaintiff established that the debtor made false oaths in his bankruptcy schedules and Statement of Financial Affairs, but the question of whether those false oaths were made knowingly and fraudulently should be established at trial.