Bajgar v. Martin ( 1997 )


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    United States Court of Appeals
    For the First Circuit
    ____________________

    No. 96-1600

    IN RE: JURAJ J. BAJGAR,

    Debtor,

    _____________________

    CAROL B. MARTIN, ADMINISTRATOR OF ESTATE OF FRANCIS A. MARTIN,
    Plaintiff/Creditor, Appellant,

    v.

    JURAJ J. BAJGAR,
    Defendant/Debtor, Appellee.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Morris E. Lasker, U.S. District Judge] ___________________

    ____________________

    Before

    Torruella, Chief Judge, ___________
    Bownes, Senior Circuit Judge, ____________________
    and Stahl, Circuit Judge. _____________

    ____________________

    Arthur J. Carakatsane for appellant. _____________________
    Richard S. Hackel for appellee. _________________

    ____________________

    January 17, 1997
    ____________________



















    STAHL, Circuit Judge. Creditor-Appellant Carol B. STAHL, Circuit Judge. _____________

    Martin appeals the district court's affirmance of the

    bankruptcy court's decision to grant Debtor-Appellee Juraj J.

    Bajgar a discharge pursuant to 11 U.S.C. 727(a)(2)(A) with

    respect to property that Bajgar fraudulently transferred

    within one year before the filing of his voluntary petition

    for relief under Chapter 7 of the Bankruptcy Code. We

    reverse.

    Background Background __________

    Bajgar and his wife jointly owned a vacant parcel

    of land in Port St. Lucie, Florida ("the Florida property").

    On November 10, 1993, Bajgar conveyed his interest in the

    land to his wife, purportedly as a belated engagement gift,

    delayed twenty-three years. In return, Bajgar received "love

    and affection." The conveyance was recorded on December 2,

    1993. At the time of the conveyance, Bajgar faced a

    collection action and several foreclosures. He conceded at

    trial that the transfer was fraudulent within the meaning of

    the Bankruptcy Code, admitting that the transfer was

    completed with actual intent to hinder, delay, or defraud his

    creditors.

    On May 16, 1994, less than one year after the

    conveyance of the Florida property, Bajgar filed a petition

    for relief under Chapter 7 of the Bankruptcy Code. In his

    petition, Bajgar disclosed the fraudulent transfer by



    -3- 3













    attaching a copy of the deed to the statement of affairs

    filed pursuant to 11 U.S.C. 521(1). At a June 20, 1994,

    mandatory creditors meeting, Bajgar and his wife volunteered

    to reconvey the Florida property.

    On August 19, 1994, Martin, one of Bajgar's

    creditors, filed a Complaint to Object to Discharge, which

    she amended on September 21, 1994. Martin's amended

    complaint alleged a violation of 11 U.S.C. 727(a)(2)(A),

    which precludes discharge for a debtor who transfers property

    within one year of the filing of a bankruptcy petition if he

    acts with the intent to hinder, delay, or defraud a creditor.

    On September 30, 1994, at Bajgar's request and on the advice

    of counsel, Bajgar's wife reconveyed the Florida property to

    herself and Bajgar jointly by quitclaim deed. Bajgar's wife

    completed the retransfer more than four months after Bajgar

    filed his voluntary bankruptcy petition, more than three

    months after the meeting with creditors, and more than one

    month after Martin first objected to discharge.

    The bankruptcy court (Hillman, J.) held that the

    conveyance of the Florida property did not constitute grounds

    to deny Bajgar's discharge under Section 727(a)(2)(A).

    Martin appealed this decision to the United States District

    Court for the District of Massachusetts. The district court

    (Lasker, J.) affirmed, determining that the re-transfer of

    the Florida property to Bajgar cured Bajgar's admittedly



    -4- 4













    fraudulent initial transfer. This appeal ensued.

    Standard of Review Standard of Review __________________

    "In an appeal from the district court's review of a

    bankruptcy court order, we independently review the

    bankruptcy court's decision, applying the 'clearly erroneous'

    standard to findings of fact and de novo review to _______

    conclusions of law." Grella v. Salem Five Cent Sav. Bank, 42 ______ _________________________

    F.3d 26, 30 (1st Cir. 1994); see also In re G.S.F. Corp., 938 ___ ____ __________________

    F.2d 1467, 1474 (1st Cir. 1991). The district court's

    determination that the re-transfer justified discharging

    Bajgar pursuant to Section 727(a)(2)(A) constitutes a

    conclusion of law that we subject to plenary review. See ___

    Century 21 Balfour Real Estate v. Menna (In re Menna), 16 ______________________________ _____ ___________

    F.3d 7, 10 (1st Cir. 1994); In re Erin Food Servs., Inc., 980 ____________________________

    F.2d 792, 799 (1st Cir. 1992).

    Discussion Discussion __________

    This case presents this Circuit with an issue of

    first impression: whether an admittedly fraudulent transfer

    of a debtor's property within one year before the filing of a

    voluntary petition for relief under Chapter 7 of the

    Bankruptcy Code is cured for purposes of dischargeability

    pursuant to Section 727(a)(2)(A) by its re-transfer to the

    debtor after the debtor files his petition. We hold that re-

    transfer subsequent to filing a voluntary bankruptcy petition





    -5- 5













    does not cure the fraudulent transfer, and, thus, does not

    avail the debtor discharge under Section 727.

    Title 11, Section 727(a)(2)(A) states in pertinent

    part:

    (a) The court shall grant the debtor a discharge,
    unless--

    (2) The debtor, with intent to hinder,
    delay, or defraud a creditor . . . has
    transferred . . .

    (A) property of the debtor within
    one year before the date of the
    filing of the petition.

    11 U.S.C. 727(a)(2)(A). Bajgar urges us to interpret the

    term "transferred" to mean "transferred and remained

    transferred" in the context of a debtor who reconveys

    property subsequent to filing a voluntary bankruptcy

    petition.

    As we have stated previously, "the task of

    interpretation begins with the text of the statute itself,

    and statutory language must be accorded its ordinary

    meaning." Telematics Int'l, Inc. v. NEMLC Leasing Corp., 967 ______________________ ___________________

    F.2d 703, 706 (1st Cir. 1992). "Where, as here, the

    statute's language is plain, 'the sole function of the courts

    is to enforce it according to its terms.'" United States v. _____________

    Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (quoting ______________________

    Caminetti v. United States, 242 U.S. 470, 485 (1917)). "The _________ _____________

    plain meaning of legislation should be conclusive, except in

    the 'rare cases [in which] the literal application of a


    -6- 6













    statute will produce a result demonstrably at odds with the

    intentions of the drafters.'" Ron Pair, 489 U.S. at 242 ________

    (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, _______ _________________________

    571 (1982)).

    The statutory language of Section 727(a)(2)(A) is

    sufficiently plain. The statute specifically authorizes

    denial of discharge if the debtor "transferred" property

    within one year prior to the date of filing the bankruptcy

    petition; it does not qualify this provision with a clause to

    the effect that transferred property must remain transferred.

    See 11 U.S.C. 727(a)(2)(A). ___

    The Bankruptcy Code, moreover, defines the term

    "transfer" broadly as "every mode, direct or indirect,

    absolute or conditional, voluntary or involuntary, of

    disposing of or parting with property or with an interest in

    property." 11 U.S.C. 101(54). Although the legislative

    history offers no guidance in interpreting "transfer" in the

    context of Section 727(a)(2)(A), the legislative history of

    Section 101(54), which defines "transfer," explains that

    "[t]he definition of transfer is as broad as possible." S.

    Rep. No. 989, 95th Cong. 27 (1978), reprinted in 1978 _________ __

    U.S.C.C.A.N. 5787, 5813; H.R. Rep. No. 595, 95th Cong. 314

    (1977). Limiting the definition of "transferred" to

    "transferred and remained transferred," in fact, would

    contradict the drafters' intent.



    -7- 7













    In support of his position, Bajgar recites Justice

    Douglas' admonition that courts "do not read . . . statutory

    words with the ease of a computer. There is an overriding

    consideration that equitable principles govern the exercise

    of bankruptcy jurisdiction." Bank of Marin v. England, 385 _____________ _______

    U.S. 99, 103 (1966). This recitation, however, is misplaced

    in this case. Bank of Marin addressed the issue of whether _____________

    or not "the payment by the drawee of a drawer bankrupt's

    checks after the date of th[e] filing [in bankruptcy] is a

    `transfer' within the meaning of [repealed 11 U.S.C.

    110(d)(5)]." Id. at 102. The Court determined "it would be ___

    inequitable to hold liable a drawee who pays checks of the

    bankrupt duly drawn but presented after bankruptcy, where no

    actual revocation of its authority has been made and it has

    not notice or knowledge of the bankruptcy." Id. at 103. ___

    Although Congress "has legislated the exception [that the

    Marin Court articulated with respect to the need for notice] _____

    in 542(c)," Poonja v. Charles Schwab & Co. (In re Dominion ______ ____________________ ______________

    Corp.), 199 B.R. 410, 413 (9th Cir. 1996), the legislative _____

    history makes plain that Congress, in revising the Bankruptcy

    Code, did not intend to limit the definition of the term

    "transfer." See S. Rep. No. 989, at 27; H.R. Rep. No 595, at ___

    314; see also Dominion Corp., 199 B.R. at 413 (explaining ___ ____ ______________

    that changes made to the Code following Marin pertained to _____

    the definition of "transferee" not "transfer"). In fact,



    -8- 8













    "[t]he word 'transfer' has always had a most comprehensive

    meaning under the bankruptcy laws and has been construed to

    include every method of disposing of or parting with property

    or its possession." 4 Collier on Bankruptcy 727.02[5] _____________________

    (15th ed. 1996). And, "[w]hatever force the assertion in

    Bank of Marin v. England, that 'equitable principles govern _____________ _______

    the exercise of bankruptcy jurisdiction' may have had under

    the 1898 Act, this approach has no place under the Code to

    the extent the statute addresses the question." Levit v. _____

    Ingersoll Rand Fin. Corp., 874 F.2d 1186, 1189 (7th Cir. _________________________

    1989); see also In re Taubman, 160 B.R. 964, 980 (S.D. Ohio ___ ____ _____________

    1993) ("It must [] be recognized that the exercise of []

    equitable principles . . . 'cannot contravene specific

    provisions of the Bankruptcy Code.'") (quoting Terex Corp. v. ___________

    Metropolitan Life Ins. Co., 984 F.2d 170, 173 (6th Cir. 1993)).1 __________________________

    ____________________

    1. The district court reasoned that "`the statutory right to
    a discharge should ordinarily be construed liberally in favor
    of the debtor.'" Martin v. Bajgar (In re Bajgar), C.A. No. ______ ______ ____________
    95-12562-MEL, slip op. at 2-3 (quoting In re Tully, 818 F.2d _______ ___________
    106, 110 (1st Cir. 1987)). Although Tully did posit that _____
    "`[t]he reasons for denying a discharge to a bankrupt must be
    real and substantial, not merely technical and conjectural,'"
    it also directed that, "[o]n the other hand, the very purpose
    of certain sections of the law, like 11 U.S.C. 727(a)[], is
    to make certain that those who seek the shelter of the
    bankruptcy code do not play fast and loose with their assets
    or with the reality of their affairs." Tully, 818 F.2d at _____
    110 (quoting Dilworth v. Booth, 69 F.2d 621, 624 (5th Cir. _______ ________ _____
    1934)). In a more recent case, moreover, we explained that
    "[e]xceptions to discharge are narrowly construed in
    furtherance of the Bankruptcy Code's `fresh start' policy and
    the claimant must show that its claim comes squarely within _____________________________________________________________
    an exception enumerated in Bankruptcy Code [727(a)(2)]." ___________________________________________________________
    Menna, 16 F.3d at 9 (emphasis added). In this case, Martin's _____

    -9- 9













    Without delving into the murky realm of legislative

    purpose and equitable principles, the Eleventh Circuit, one

    of the two other courts of appeals to address this issue,

    reached the same conclusion we reach today. See Davis v. ___ _____

    Davis (In re Davis), 911 F.2d 560 (11th Cir. 1990) (per _____ ___________

    curiam). In Davis, the Eleventh Circuit considered the case _____

    of a debtor ("Davis") who transferred a one-half interest in

    his home to his wife. See id. at 561. Upon the advice of a ___ ___

    bankruptcy lawyer, Davis re-transferred the property. The

    day following recordation of the deed formalizing this

    retransfer, and less than one year after the initial

    transfer, Davis filed for bankruptcy protection under Chapter

    7. Despite the fact that Davis disclosed the existence of

    the fraudulent transfers, a creditor filed an adversary

    proceeding to deny discharge under Section 727(a)(2)(A).

    Like Bajgar, Davis argued that "the word

    'transferred' should be read to mean 'transferred and

    remained transferred' at the time a debtor files his

    bankruptcy petition." Id. at 562. Refusing to discharge ___

    Davis, the Eleventh Circuit reasoned:

    Normally, a court should interpret a
    statute in a manner consistent with the

    ____________________

    claim that Bajgar should be denied discharge because Bajgar
    fraudulently transferred property within one year before the
    filing of the bankruptcy petition falls squarely within the
    exception that Section 727(a)(2)(A) enumerates. See 11 ___
    U.S.C. 727(a)(2)(A). The Tully court's instruction, _____
    therefore, does not control this case.

    -10- 10













    plain meaning of the language used in the
    statute. The statutory language of
    section 727(a)(2)(A) is plain and
    unambiguous. Congress certainly was
    capable of drafting a statute which would
    deny a discharge only when assets were
    fraudulently transferred and remained
    transferred at the time of filing of
    bankruptcy proceedings, but it did not.
    We are a court and not a legislative
    body; therefore, we are not free to
    create by interpretation an exception in
    a statute which is plain on its face.

    Id. (citations omitted). According to the Eleventh Circuit, ___

    therefore, if a debtor fraudulently transfers property within

    one year before the filing of a bankruptcy petition, he will

    not receive a discharge. See Najjar v. Kablaoui (In re ___ ______ ________ _____

    Kablaoui), 196 B.R. 705, 709 (S.D.N.Y. 1996) ("[T]he Eleventh ________

    Circuit wholly rejects the debtor's subsequent reconveyance

    of the fraudulently transferred property as a defense to a

    section 727(a)(2)(A) action.").

    While the plain language of Section 727(a)(2)(A)

    and the applicable legislative history point to the

    conclusion that, upon proper objection, any debtor who

    fraudulently transfers property within one year before the

    filing of a bankruptcy petition is not entitled to receive a

    discharge pursuant to Section 727, irrespective of the timing

    of a reconveyance, this case presents us with a debtor who

    reconveyed property several months subsequent to filing a

    voluntary bankruptcy petition. We need not decide now either

    the effect of a reconveyance made prior to the filing of a



    -11- 11













    voluntary bankruptcy petition or the question of a re-

    transfer effected immediately following the filing of an

    involuntary petition.

    Despite Section 727(a)(2)(A)'s plain language and

    the Davis court's interpretation, Bajgar seeks solace in a _____

    Ninth Circuit case, First Beverly Bank v. Adeeb (In re __________________ _____ _____

    Adeeb), 787 F.2d 1339, 1344 (9th Cir. 1986), which _____

    interpreted the term "transferred" to mean "transferred and

    remained transferred" in the context of Section 727(a)(2)(A).

    Both the bankruptcy court, see Bajgar, 186 B.R. at 8, and the ___ ______

    district court, see Martin v. Bajgar (In re Bajgar), C.A. No. ___ ______ ______ ____________

    95-12562-MEL, slip op. at 2 (D. Mass. March 19, 1996), found

    Adeeb persuasive in this case. We do not. _____

    In Adeeb, the court considered whether or not to _____

    discharge an individual ("Adeeb") who transferred property

    "with intent to hinder, delay, or defraud a creditor" within

    one year of the filing of a petition. See 787 F.2d at 1342, ___

    1344. Faced with demands from his creditors, Adeeb consulted

    with an attorney who had little bankruptcy experience.

    Acting upon his attorney's advice, Adeeb transferred several

    properties to third parties. Adeeb then retained an

    experienced bankruptcy attorney, who advised him to re-

    transfer the properties and to disclose the initial transfers

    to his creditors. Adeeb followed this advice and immediately

    began to reverse the transfers while notifying his creditors



    -12- 12













    of his actions. Before Adeeb could complete the re-transfers

    and within one year of the initial fraudulent transfers,

    several of his creditors filed an involuntary bankruptcy

    petition against him. Determining not to contest this

    petition, several days later Adeeb filed a voluntary

    petition, "seeking a discharge of his indebtedness." Id. at ___

    1342.

    The Adeeb court determined that "reading _____

    `transferred' . . . to mean 'transferred and remained

    transferred' is most consistent with the legislative purpose

    of [Section 727(a)(2)(A)]." Id. at 1344. The Adeeb court ___ _____

    reasoned:

    First, this reading encourages honest
    debtors to recover property they have
    transferred during the year preceding
    bankruptcy. Encouraging debtors to
    recover improperly transferred property
    facilitates the equitable distribution of
    assets among creditors by ensuring that
    the trustee has possession of all of the
    debtor's assets. Second, this reading
    permits the honest debtor to undo his
    mistakes and receive his discharge.

    Id. at 1345. Treating Adeeb as the subject of an involuntary ___

    petition because "[t]he involuntary petition in this case

    began the bankruptcy process," id. at 1346 n.4, the court ___

    discharged Adeeb. The court held that "a debtor who has

    disclosed his previous transfers to his creditors and is

    making a good faith effort to recover the property

    transferred at the time an involuntary bankruptcy petition is ___________



    -13- 13













    filed is entitled to a discharge of his debts if he is

    otherwise qualified." Id. at 1346 (emphasis added). ___

    The Adeeb court, however, enunciated a different _____

    rule with respect to a debtor who files a voluntary _________

    bankruptcy petition: "[A] debtor who transfers property

    within one year of bankruptcy with the intent penalized by

    section 727(a)(2)(A) may not be denied discharge of his debts

    if he reveals the transfers to his creditors, recovers ________

    substantially all of the property before he files his _____________________________________________________

    bankruptcy petition, and is otherwise qualified for a ___________________

    discharge." Id. at 1345 (emphasis added). As the Adeeb ___ _____

    court explained, this rule demanding recovery prior to the

    filing of a petition "assumes the filing of a voluntary

    petition by the debtor. In that situation, the debtor

    controls the time of filing the petition. He is therefore

    able to time the filing to allow recovery of substantially

    all of his property." Id. at 1346. Adeeb thus makes clear ___ _____

    that the test applicable to a debtor subject to an

    involuntary bankruptcy petition differs substantially from

    the test the court would apply to a debtor filing a voluntary

    bankruptcy petition.

    Even were we to adopt Adeeb, its application to the _____

    instant case would result in denial of discharge. Bajgar did

    not recover any of the transferred property until well after

    he filed his voluntary bankruptcy petition. Although the



    -14- 14













    bankruptcy court noted the fact that Bajgar did not complete

    reconveyance of the property "until several months after the

    filing of the petition," Bajgar, 186 B.R. at 9, it determined ______

    that because Bajgar revealed the transfer at the time of his

    filing, "those facts satisfy the Adeeb test that the recovery _____

    be 'prior to the time the bankruptcy petition was filed or

    within a reasonable time after it was filed.'" Id. (quoting ___

    Adeeb, 787 F.2d at 1346). Contrary to the bankruptcy court's _____

    assertion, disclosure constitutes only one component of the

    activity necessary to secure discharge under Adeeb. See _____ ___

    Adeeb, 787 F.2d at 1345-46. Furthermore, the language that _____

    the bankruptcy court relies on from Adeeb applies to an _____

    involuntary petition, rather than a voluntary petition: "We

    emphasize that the debtor [subject] . . . to the filing of

    the involuntary petition . . . must actually recover the

    property within a reasonable time after the filing of the ___

    involuntary petition." Adeeb, 787 F.2d at 1346 (emphasis ____________________ _____

    added). In the case of a voluntary bankruptcy petition, such

    as Bajgar filed, however, "[t]he Ninth Circuit requires

    actual reconveyance of the fraudulently transferred property ____________________________________________________________

    before the bankruptcy filing." Kablaoui, 196 B.R. at 709 ____________________________ ________

    (explaining Adeeb) (emphasis added); see also Adeeb, 787 F.2d _____ ___ ____ _____

    at 1345-46; March v. Sanders (In re Sanders), 128 B.R. 963, _____ _______ _____________

    971 (W.D. La. 1991) ("Court of Appeals decisions . . . have

    taken the position that mere disclosure of actions prohibited



    -15- 15













    by Sec. 727(a)(2)(A) will not prevent denial of discharge.

    What may allow discharge is disclosure accompanied by

    voluntary prepetition reversal of the prohibited activities . ____________________

    . . .") (emphasis added). As the Kablaoui court concluded, ________

    "[h]ere the Debtor did not attempt to recover any of the

    transferred property before filing for bankruptcy. Thus,

    these transfers were not 'undone' under the Ninth Circuit's

    definition of 'transfer.'" Kablaoui, 196 B.R. at 709. ________

    The bankruptcy court, again relying on Adeeb, _____

    endeavored to buttress its construction of Section

    727(a)(2)(A) by insisting that construing "transferred" to

    mean "transferred and remained transferred" furthers the

    general purpose of the Bankruptcy Code. See Bajgar, 186 B.R. ___ ______

    at 7-8. We recognize that reading the term "transferred" to

    mean "transferred and remained transferred," could be

    construed, in certain instances, to advance the "purpose of

    the Bankruptcy Act to [distribute] the assets of the bankrupt

    . . . among creditors and then to relieve the honest debtor

    from the weight of oppressive indebtedness and permit him to

    start afresh free from the obligations and responsibilities

    consequent upon business misfortunes." Williams v. United ________ ______

    States Fidelity & Guarantee Co., 236 U.S. 549, 554-55 (1915); _______________________________

    Adeeb, 787 F.2d at 1345. This purpose affords the "honest _____

    but unfortunate debtor who surrenders for distribution the

    property which he owns at the time of bankruptcy, a new _________________________



    -16- 16













    opportunity in life and a clear field for future effort,

    unhampered by the pressure and discouragement of preexisting

    debt." Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934). ______________ ____

    In this case, however, Bajgar did not reveal his

    initial fraudulent transfer until he filed his bankruptcy

    petition. In addition, Bajgar consulted with an experienced

    bankruptcy attorney at the time he executed the initial

    fraudulent transfer. It was not until he faced the prospect

    of being denied discharge pursuant to Section 727(a)(2)(A)

    that Bajgar actually reconveyed the property.

    We are not presented with an "honest but

    unfortunate debtor" that the Bankruptcy Code envisions as the

    deserving recipient of a fresh start. Cf. Huckfeldt v. ___ _________

    Huckfeldt (In re Huckfeldt), 39 F.3d 829, 832-33 (8th Cir. _________ _______________

    1994) (describing individual who did not constitute "honest

    but unfortunate debtor"); Barclays/American Business Credit, __________________________________

    Inc. v. Adams (In re Adams), 31 F.3d 389, 393-94 (6th Cir. ____ _____ ___________

    1994) (refusing to discharge a debtor pursuant to Section

    727(a)(2)(A)), cert. denied, 115 S. Ct. 903 (1995).2 _____ ______

    ____________________

    2. Adeeb, by contrast, did present such a picture. The
    Adeeb court explained: _____

    We are . . . persuaded by practical
    considerations that a discharge should
    not be denied in the present situation.
    It is not uncommon for an uncounseled or
    poorly counseled debtor faced with
    mounting debts and pressure from his
    creditors to attempt to protect his
    property by transferring it to others.

    -17- 17













    Contrary to the bankruptcy court's determination, therefore,

    denying Bajgar discharge actually comports with the "purpose"

    of the Bankruptcy Act. See Grogan v. Garner, 498 U.S 279, ___ ______ ______

    286-87 (1991) ("[I]n the same breath that we have invoked

    th[e] 'fresh start' policy, we have been careful to explain

    that the [Bankruptcy] Act limits the opportunity for a

    completely unencumbered new beginning to the 'honest but

    unfortunate debtor.'"); Citibank, N.A. v. Eashai (In re ______________ ______ _____

    Eashai), 87 F.3d 1082, 1088 (9th Cir. 1996) ("This exception ______

    to discharge furthers the policy that an honest but

    unfortunate debtor obtains a fresh start while a dishonest

    debtor does not benefit from his wrongdoing."); Mayer v. _____

    Spanel Int'l Ltd., 51 F.3d 670, 674 (7th Cir.) ("Congress _________________

    concluded that preventing fraud is more important than

    letting defrauders start over with a clean slate, and we must

    respect that judgment."), cert. denied, 116 S. Ct. 563 (1995).3 _____ ______

    ____________________

    Upon later reflection or upon obtaining
    advice from experienced bankruptcy
    counsel, the debtor may realize his
    original transfer of property was a
    mistake.

    Adeeb, 787 F.2d at 1345. At oral argument in the instant _____
    case, however, Bajgar's attorney informed us that Bajgar was
    well-counseled by an experienced bankruptcy lawyer throughout
    the period in question, including the time he executed the
    initial fraudulent transfer.

    3. As for the Bankruptcy Code's objective of guaranteeing
    the equitable distribution of a petitioner's estate among his
    creditors, it is likely that our decision, by denying
    discharge, will facilitate this outcome by deterring
    petitioners from fraudulently transferring property within

    -18- 18













    Conclusion Conclusion __________

    Martin's claim "comes squarely within" Section

    727(a)(2)(A)'s exception for property fraudulently

    transferred within one year of the filing of a bankruptcy

    petition. See Menna, 16 F.3d at 9. It is for Congress to ___ _____

    determine whether or not this exception should be recast. We

    REVERSE and REMAND to the district court with instructions to

    remand to the bankruptcy court for proceedings consistent

    with this opinion.






























    ____________________

    one year of filing a voluntary bankruptcy petition in the
    first place.

    -19- 19






Document Info

Docket Number: 96-1600

Filed Date: 1/23/1997

Precedential Status: Precedential

Modified Date: 9/21/2015

Authorities (20)

In Re G.S.F. CORPORATION, Debtor, Chase Commercial ... , 938 F.2d 1467 ( 1991 )

Paul J. Grella, Trustee v. Salem Five Cent Savings Bank , 42 F.3d 26 ( 1994 )

Century 21 Balfour Real Estate v. Menna , 16 F.3d 7 ( 1994 )

Bankr. L. Rep. P 71,787 in Re John E. Tully, Debtor. Henry ... , 818 F.2d 106 ( 1987 )

in-re-erin-food-services-inc-debtor-the-travelers-insurance-company-v , 980 F.2d 792 ( 1992 )

Telematics International, Inc. v. Nemlc Leasing Corporation , 967 F.2d 703 ( 1992 )

Louis W. Levit, Trustee of V.N. Deprizio Construction Co. v.... , 874 F.2d 1186 ( 1989 )

In Re Terex Corporation, Debtor. Terex Corporation v. ... , 984 F.2d 170 ( 1993 )

Bankr. L. Rep. P 76,030 in Re Edsel Adams and Frances T. ... , 31 F.3d 389 ( 1994 )

In Re Don Young Davis, Debtor. Don Young Davis v. Roe J. ... , 911 F.2d 560 ( 1990 )

Dilworth v. Boothe , 69 F.2d 621 ( 1934 )

In the Matter of John E. Mayer and Deborah Mayer, Debtors-... , 51 F.3d 670 ( 1995 )

32-collier-bankrcas2d-418-bankr-l-rep-p-76172-in-re-roger-eugene , 39 F.3d 829 ( 1994 )

In Re Amjad I. Eashai, Debtor. Citibank (South Dakota), N.A.... , 87 F.3d 1082 ( 1996 )

Williams v. United States Fidelity & Guaranty Co. , 35 S. Ct. 289 ( 1915 )

Caminetti v. United States , 37 S. Ct. 192 ( 1917 )

Local Loan Co. v. Hunt , 54 S. Ct. 695 ( 1934 )

Griffin v. Oceanic Contractors, Inc. , 102 S. Ct. 3245 ( 1982 )

Bank of Marin v. England , 87 S. Ct. 274 ( 1966 )

United States v. Ron Pair Enterprises, Inc. , 109 S. Ct. 1026 ( 1989 )

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