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In re Zahoruiko

United States District Court, D. Massachusetts

September 25, 2014

IN RE: J. GRAHAM ZAHORUIKO, Debtor.
v.
J. GRAHAM ZAHORUIKO, Defendant-Appellant PREMIER CAPITAL, LLC, Plaintiff-Appellee,

Page 161

In Re J Graham Zahoruiko, Pro se, Grafton, MA.

J. Graham Zahoruiko, Appellant, Pro se, Grafton, MA.

For J. Graham Zahoruiko, Appellant: Howard B. D'Amico, LEAD ATTORNEY, Howard B D'Amico, PC, Worcester, MA.

For Premier Capital, LLC, Appellee: Peter Antonelli, Thomas H. Curran, LEAD ATTORNEYS, LeClair Ryan, P.C., Boston, MA.

Asst. U.S. Trustee Richard King, Notice, Pro se, Worcester, MA.

United States Bankruptcy Court, District of Massachusetts, Notice, Pro se, Worcester, MA.

David M. Nickless, Chapter 7 Trustee, Trustee, Pro se, Fitchburg, MA.

Page 162

MEMORANDUM AND ORDER

WILLIAM G. YOUNG, DISTRICT JUDGE.

I. INTRODUCTION

This appeal of a final order of the United States Bankruptcy Court for the District of Massachusetts (the " Bankruptcy Court" ) is brought by J. Graham Zahoruiko (" Zahoruiko" ), seeking to overturn a judgment denying the discharge of his debt under section 727(a)(4)(A) of the Bankruptcy Code.

A. Procedural History

On November 9, 2012, Premier Capital, LLC (" Premier" ) initiated an adversary proceeding against Zahoruiko in Bankruptcy Court, seeking judgment either denying the discharge of Zahoruiko's debt under 11 U.S.C. § 727(a)(4)

Page 163

or excepting debts owed to Premier from discharge under 11 U.S.C. § 523(a)(2)(B). See United States Bankruptcy Court, District of Massachusetts (Worcester), Adversary Proceeding No. 12-04119 (" Adversary Docket" ), Compl. Objecting Dischargeability & Discharge Debts, ECF No. 1. A trial was held before Judge Melvin S. Hoffman on May 29, 2013. Adversary Docket, Hearings Held, May 29, 2013; see also Adversary Docket, Tr. Hr'g Re: Trial (" Trial Tr." ), May 29, 2013, ECF No. 42.[1] On October 17, 2013, Judge Hoffman issued his findings of fact and conclusions of law and entered judgment for Premier on the first count of its complaint pursuant to 11 U.S.C. § 727(a)(4)(A). See Adversary Docket, Findings Fact & Conclusions Law Regarding Objection Discharge & Dischargeability (" Bankr. Ct. Opinion" ), ECF No. 47; Adversary Docket, Judgment, ECF No. 48.[2]

Zahoruiko appealed the Bankruptcy Court's judgment, and the case was assigned to this Court on December 3, 2013. Elec. Notice, Dec. 3, 2013, ECF No. 6. Zahoruiko filed his appellant's brief on January 29, 2014. See Br. Def.-Appellant, G. Graham Zahoruiko (" Zahoruiko's Mem." ), ECF No. 8. Premier filed an appellee's brief in opposition on February 12, 2014. See Appellee Premier Capital, LLC's Br. Opp'n Appellant-Debtor J. Graham Zahoruiko's Br. Appeal (" Premier's Opp'n" ), ECF No. 9.

B. Undisputed Facts

On May 1, 2012, Zahoruiko filed for bankruptcy under Chapter 13 of the Bankruptcy Code. See United States Bankruptcy Court District of Massachusetts (Worcester), Bankruptcy Petition No. 12-41662 (" Bankr. Docket" ), Ch. 13 Voluntary Pet., ECF No. 1. Naturally, in the course of filing his Chapter 13 petition, Zahoruiko completed paperwork setting out in detail his financial circumstances as of May 1, 2012 (the " May 1 filings" ), and much of the controversy in this case focuses on what those statements left out. See generally Trial Tr., Ex. 1, USBC Previous Ch. 13 12-41662 (" Bankr. R." ) 12-52, ECF No. 3-1. In his Schedule B form, listing personal property, Zahoruiko failed to mention (1) his ownership of stock in two corporations, Refresh Software, Inc. (" Refresh" ) and Celltak Corp. (" Celltak" ), (2) his ownership of Restricted Stock Units affiliated with his then-employer, Anthelio Healthcare Solutions, Inc. (" Anthelio" ), and (3) his status as trustee of an asset-owning trust, the J. Graham Zahoruiko Living Trust (the " Trust" ). See id. at 23-25; see also Zahoruiko's Mem. 4-5; Bankr. Ct. Opinion 2-3. In his Statement of Financial Affairs (" SOFA" ), Zahoruiko failed to mention (1) payments he made to ...


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