Gene Frederick Lambert

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UNITED STATES BANKRUPTCY COURT
MIDDLE DISTRICT OF FLORIDA

CASE NO. 96-3531-6B7

In the Matter of: oe + FILED VIAMA
E L fe nh L I L
GENE F. LAMBERT HEC 21 1998 DEC 1998
Toy GAYADO, RORIDA
BANKAUP |
Debtor. CLERK: U5 DIVISION
MEMORANDUM OPINION

THIS CAUSE came on to be heard on December 1, 1998 on Debtor’s amendment
filed September 18, 1998 to amend the Schedule B to include assets not previously
scheduled, to amend Schedule C to exempt the assets as being owned as tenants by entirety,
the Trustee’s motion to strike the amendments as not made in good faith and to the prejudice
of creditors, and the Trustee’s objection to the Schedule C exemption of the assets known
as the shareholder loans due by Fair Oaks, Ltd., the shareholder interest in MRM Security
Systems, Inc. and the 3.7125% limited partnership interest in LPR Associates, Ltd., a
Michigan limited partnership. On November 30, 1998, Gene Lambert withdrew the
Schedule C exemption claims to MRM Security Systems, Inc. and the shareholder loans due
by Fair Oaks, Ltd. Upon the evidence presented, the Court makes the following findings
of fact and conclusions of law:

FINDINGS OF FACT

LPR Associates, Ltd. was formed as a Michigan limited partnership on September
25, 1986 (Trustee’s Ex. 134) to own a 120,000 square foot office building known as Powers
Court. A trial was held on September 24, 25, 30 and October 1, 1997 on the Trustee’s
objection to exemptions on other assets claimed to be owned as tenants by the entirety. The
parties have stipulated the testimony and documentary evidence used at that trial is equally
applicable to this objection to exemption. The Debtor presented two assignments of

partnership interest (Debtor’s Ex. 19 and 20) and a subscription agreement as his proof of

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tenancy by the entirety estate (Debtor’s Ex. 21). The debtor did not schedule this as an asset
nor claim this asset as exempt in Schedule C until September 18, 1998. The Debtor acquired
this interest due to an inheritance from his aunt and uncle.

Debtor’s Ex. 19 is an assignment of a partnership unit in LPR Associates. It has a
computer date of 1994 on each page on the bottom left hand corner. Debtor’s Ex. 19 is not
signed by Mrs. Lambert. The handwritten date next to Debtor’s signature is January 12,
1992 with Richard Lambert approving it January 14, 1992. Richard Lambert admitted this
document was not actually prepared until 1994. Mrs. Lambert did not sign Debtor’s Ex. 19.

Debtor’s Ex. 20 is an assignment of two (2) units in LPR Associates, Ltd. It has the
same computer date of 1994 and it is shown to be signed on January 1, 1994. Richard
Lambert confirmed Debtor’s Ex. 20 was prepared in 1994, but he could not tell if it was
backdated. Mrs. Lambert never signed Debtor’s Ex. 20.

Debtor’s Ex. 21 is also a subscription agreement. It is in a different form than the
form in Debtor’s Ex. 19 and 20. Debtor’s Ex. 21 is an eight (8) page document. It too, is
not signed by Mrs. Lambert. It is dated January 8, 1992 on page seven (7). Also, on page
seven, it shows a January 8, 1994 date. Page eight similarly shows two dates; one being
1992 and the other being 1994. Given the later dates, the Court must find the earliest these
documents could have been typed would have been 1994. By this date, Debtor was not
putting investments in Mrs. Lambert’s name, according to his testimony at page 138 of the
trial testimony where Gene Lambert was asked,

Q. And you also agree that since late ‘93 you have not put any investments in

Diane Lambert’s name either alone or as a tenant by entirety; isn’t that nght

A. Correct.

The other contradictory evidence presented by the Trustee to prove the asset was not
held as tenants by the entirety is as follows:

(A) The Trustee’s Ex. 136 is a certificate of amendment filed in the Public

Records of Michigan on September 19, 1994. Richard Lambert filed it,

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signing the document “supplement P” for all the limited partners as “attorney
in fact”. The certificate amendment on “supplement P” only lists the Debtor
as a new partner without any reference to Mrs. Lambert.

(B)} _Trustee’s Ex. Sb in evidence at paragraph eight is the marital dissolution
affidavit of Gene F, Lambert filed in the dissolution action on September 27,
1995 (approximately 11 months before the bankruptcy was filed). It shows at
paragraph eight the Debtor stated he owned this 3.7125% limited partnership
interest in LPR Associates, Ltd.

(C) Trustee’s Ex. 137 is an attachment to form 982 issued to limited partners for
the year ending December 31, 1994. It was issued only to Gene F. Lambert
as the partner.

(D) Trustee’s Ex. 60 tax return contains the form schedule K-1 issued in 1994 by
LPR Associates, Ltd. only to Gene F. Lambert.

CONCLUSIONS OF LAW

From the evidence presented, the Court finds the 3.7125% limited partnership interest
in LPR Associates, Ltd. is owned solely by the Debtor and not as tenants by the entirety
with Mrs. Lambert.

In the Memorandum Opinion dated December 16, 1997, the Court had the very same
issues of whether the investments were owned as tenants by the entirety or in his name
alone. In the Memorandum Opinion, the Court concluded investments were not held as
tenants by the entirety and set forth the various conclusions the Court reached in ruling the
assets were owned by Gene F. Lambert in his name alone. Consistent with the earlier ruling
with the earlier Memorandum Opinion, the Court finds the authenticity and credibility of
the Debtor’s documents were refuted by the Trustee’s evidence.

In addition, even if Debtor’s documents were credible, consistent with the earlier
Memorandum Opinion, the Trustee has sustained his burden by the preponderance of the

evidence to establish that neither Gene F. Lambert nor Mrs. Lambert had the requisite intent

Case ana <n Doc 353 «Filed a © Page 4 of 4

necessary to create a tenant by the entirety interest in the limited partnership interest and all
the required unities required were not in existence. Mrs. Lambert did not know of the
unilateral creation of a tenant by entirety interest in this limited partnership interest. Mrs.
Lambert never had possession or control of the limited partnership interest. Mrs. Lambert
never received a distribution or tax document issued in her name as a limited partner. Mr.
Lambert consistently took contrary positions to the tenants by the entities claim in the
dissolution affidavit, public filings in Michigan, and with the Internal Revenue Service.

Finally, the Trustee has established by the preponderance of the evidence that neither
the Debtor nor Richard Lambert acting as “attorney in fact” had the requisite donative intent
to make a gift of the investment to Mrs. Lambert. The argument of gift failed because none
of the properties came within the power and control of Mrs. Lambert as would be required
to establish an effective gift was made.

The Trustee’s objection to the Debtor’s exemptions of the shareholder loans due by
Fair Oaks, Ltd., and the shareholder interest in MRM Security Systems, Inc. are not ruled
upon because of the Debtor’s withdrawal of his claim to exemption. They are therefore,
property of the estate.

Based upon the foregoing reasons, the limited partnership interest in LPR Associates,
Ltd., a Michigan limited partnership, sought to be exempted by the Amended Schedule C
on September 18, 1998 is property of the estate, and the Trustee’s objections to the
exemption of the 3.7125% limited partnership interest in LPR Associates, Ltd., a Michigan
limited partnership will by separate Order be sustained, and the Trustee’s Motion to strike
the Debtor’s Amended Schedule C dated September 18, 1998 will be denied.

Dated this De cou lent oN , 1998 at Orlando, Florida.

HONORABLE ARTHUR BRISKMAN
UNITED STATES BANKRUPTCY JUDGE
Copies furnished by U. S. Mail to:
Raymond J. Rotella, Esq.,P .O. Box 113, Orlando, Fl 32802
John B. St. Lawrence, Esq., P. O. Box 1946, Orlando, Fl 32802

THAT THIS PAPER WAS SERVED

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