1 ABR 433

1 ABR 433

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ALASKA

In re: Case No. A90-00830	)
	)
SHANE NORMAN DERRYBERRY,	)
	)
Debtor.	)
______________________________________	)
THEODORE ROOSEVELT WILEY,	)
	)	Adversary No. A90-00830-001
Plaintiff,	)	Chapter 7
	)
v.	)
	)
SHANE NORMAN DERRYBERRY,	)
	)
Defendant.	)
______________________________________	)

OPINION AND ORDER

I. Introduction

This is an action by Theodore Roosevelt Wiley ("Wiley") objecting to the discharge of Shane N. Derryberry ("Derryberry"). It was tried before the court on March 4 and 5, 1991 along with adversary case no. A90-00829-001, Donna Marie White, Plaintiff v. Theodore Roosevelt Wiley, Defendant. Derryberry intervened in that action as a plaintiff regarding ownership of certain real property. All issues relating to the title of certain premises located at 901 W. 53rd Avenue in Anchorage were resolved in that adversary proceeding. The only issue before the court here involves objections to the discharge of Derryberry. For the reasons set forth herein, Derryberry's discharge will be denied.

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II. Factual Backqround

Shane Derryberry is Donna White's son. Donna White was the moving force behind International Travel Experts and International Travel Experts, Inc. Derryberry served as president and chairman of the board of International Travel Experts, Inc. The corporation and its predecessor actively did business in Anchorage. Office space was rented, employees hired, and tickets sold. Derryberry assisted in the office and sold tickets.

In response to question 2-C on the Statement of Affairs regarding engaging in any business during the six years immediately preceding the petition, Derryberry stated:

I was briefly the president of International Travel Experts of Anchorage, Alaska, but that business never did operate and I was unable to do any duties nor to generate any income as president.

What is true is that although I had no actual and true connection with the business known as International Travel Experts, Inc. ^(1.), I was nominally it's president. I knew nothing of the operation of that business.

Erratum: The printed edition incorrectly continues the footnote beginning on page 434 at the top of page 435. The web version of this case has the entire footnote together. The page marker was moved to the place where page 435 would have started had the footnote been correctly placed.

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III. Objections to Discharge

11 U.S.C. § 727 (a)(4) provides an exception to discharge when a debtor knowingly and fraudulently makes a false oath in connection with a case. In this instance the debtor Shane Derryberry made several false oaths. First, the statement in the Statement of Affairs that the business "never really operated" was materially false and misleading. He knew it operated. He participated in the operation of the business. He actively worked in the business. There was no legitimate reason for Derryberry to make such a false and misleading statement. It was the result of a knowing and fraudulent intent. Additionally, Derryberry's statement in the footnote to his affidavit, that "I never did any work for International Travel Experts." is materially false. The testimony of Derryberry's own mother supports the fact that Derryberry actively worked on behalf of International Travel Experts. In fact, according to Derryberry's mother, the purpose of establishing the businesses was to find Derryberry a source of employment other than "heavy labor". Derryberry actively worked for International Travel Experts and lied in his affidavit.

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By actively misrepresenting the status of his association with International Travel Experts and International Travel Experts, Inc., the debtor has knowingly and fraudulently made false oaths. Those false oaths are material and misleading to creditors. They amply justify the denial of his discharge and in accordance with 11 U.S.C. § 727. In re Sklarin, 69 B.R. 949 (Bankr. S.D.Fla. 1987); In re Chalik, 748 F.2d 616 (llth Cir. 1984); Williamson v. Fireman's Fund Ins. Co., 828 F.2d 249 (4th Cir. 1987).

The plaintiff has made other allegations of misconduct, which, in light of the court's finding herein are rendered moot. All title issues were ruled upon in the court's decision in adversary no. A90-00829-001 along with exempt property issues. They will not be addressed in this opinion.

IV. Order

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

1. The discharge of Shane Norman Derryberry is denied in accordance with 11 U.S.C. § 727(a)(4);

2. Plaintiff is awarded his costs; and

3. Each party shall bear their own attorney's fees in this action.

Let Judgment be entered and docketed accordingly

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DATED: March 13, 1991.

DONALD MacDONALD IV
United States Bankruptcy Judge

Serve:	J. Fitzgerald, Esq.
	G. Weiss, Esq.
	W. Barstow, Trustee
	Donna White

1 ABR 434-435 1. For several months ending on August 23, 1990, I was "President" of International Travel Experts, Inc., however it was only an honorary position pending my mother getting the business to operate so that we could work and have earnings from the travel agency. That never happened because Mr. Wiley (through Mr. Fitzgerald) kept taking legal actions that prevented the agency from earning any money whatsoever. Although incorporated and licensed, the agency never got ARC approval I believe because of information provided by Mr. Wiley and Mr. Fitzgerald to ARC. I never did any work for International Travel Experts.