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Community First Bank v. Donovan D. Frank (In re Frank), Ch. 7, BK18-41022-TLS, A18-4027-TLS (Aug. 26, 2020)

After a trial seeking denial of discharge under 11 U.S.C. § 727, the court ruled in favor of the debtor. The plaintiff had filed the complaint seeking a declaration that the debtor is a business partner to his non-debtor spouse, who owns a business that buys, breeds, and sells cattle. Because the debtor did not list this alleged partnership interest in his bankruptcy schedules or Statement of Financial Affairs, and declared under oath the schedules as filed were correct, the plaintiff sought to deny him a discharge from his debts under §§ 727(a)(2) and (4).

After hearing the evidence, the court found that the business belongs to the debtor’s wife and is operated by her and her children without input or assistance from the debtor. The court ruled:

The plaintiff’s argument is based primarily on assumptions and inferences rather than facts. Plaintiff is essentially asking the court to assume that [Debtor’s wife] could not conduct the business of buying, breeding, and re-selling cattle without substantial involvement by [the debtor], who had a longer history of such activities. The court, however, cannot rely on assumptions and inferences. Instead, facts must be presented. As discussed above, the facts are lacking.

Plaintiff has failed to prove the existence of a partnership by a preponderance of the evidence. Therefore, Count I of plaintiff’s complaint seeking a declaratory judgment as to the existence of a partnership is denied. Further, Counts II and III seeking denial of discharge are also denied as they are premised on the existence of a partnership under Count I.


Thursday, August 27, 2020
Judge Thomas L. Saladino