Todd Allen Fulcher

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
NEW BERN DIVISION
IN RE:
TODD ALLEN FULCHER,
DEBTOR
CHAPTER 7
CASE NO. 10-00169-8-RDD
ORDER FOR CONTINUED DETENTION OF TODD ALLEN FULCHER
UNDER FEDERAL RULE OF BANKRUPTCY PROCEDURE 2005,
TO COMPEL ATTENDANCE AT MEETING OF CREDITORS,
AND COOPERATION WITH THE CHAPTER 7 TRUSTEE
On June 22, 2010, this Court entered an Order requiring Todd Allen Fulcher (the “Debtor”)
to appear and show cause as to why he should not be held in contempt or subject to such other
sanctions and directing the United States Marshal to apprehend the Debtor and bring him before this
Court for the Debtor to appear and show cause, if any, as to why the Debtor failed to appear at the
Meeting of Creditors scheduled on April 1, 2010 and explain to the Court why he has not cooperated
with the duly appointed Chapter 7 Trustee in the administration of this estate (the “Show Cause
Order”).
In addition to the Show Cause Order, on April 1, 2010, the Court entered an Order for
Apprehension of the Debtor under Bankruptcy Rule 2005 based on his failure to appear at the
Meeting of Creditors set earlier that morning (the “Apprehension Order”). Pursuant to the
SO ORDERED.
SIGNED this 03 day of August, 2010.
________________________________________
Randy D. Doub
United States Bankruptcy Judge
____________________________________________________________
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Apprehension Order, the United States Marshal was directed to apprehend the Debtor and bring him
before the Court without unreasonable delay. Upon apprehension of Mr. Fulcher, the United States
Marshal was directed to transport Mr. Fulcher to the Court so that the Court could conduct an
inquiry as to whether apprehension and continued detainment would be appropriate.
On July 6, 2010, the Court conducted a hearing on the Show Cause Order and Apprehension
Order in Wilson, North Carolina.
Upon consideration of the arguments of the Chapter 7 Trustee and the testimony of Mr.
Fulcher, the Court makes the following findings of fact:
1. 	The Debtor was apprehended in accordance with the previous orders of this Court,
and appeared at the hearing scheduled on July 6, 2010.
2. 	The Debtor testified to the following:
a. 	The Debtor currently has no mailing address.
b. 	At the time of hearing, the Debtor was in good health and not under the
influence of any illegal or prescription drugs, alcohol, or other substance.
c. 	The Debtor was previously detained by the Court pursuant to its order
docketed on March 12, 2010.
d. 	He was subsequently released on March 23, 2010, pursuant to the terms of
the Order Granting Joint Motion to Release Todd A. Fulcher from the
Continued Custody of the United States Marshal (the “Release Order”).
Under the terms of the Release Order, Mr. Fulcher was to appear at the
meeting of creditors scheduled for April 1, 2010, and cooperate, as well as,
communicate with the Chapter 7 Trustee. Further, Mr. Fulcher was not to
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enter onto any real properties owned by Mr. Fulcher without the permission
of the Chapter 7 Trustee.
e. 	At the time the Chapter 7 Trustee recommended his release on March 23,
2010, the Debtor understood that he was to appear on April 1, 2010 at 9:30
a.m. at the Bankruptcy Administrator’s office in Wilson, North Carolina for
his scheduled 341 Meeting of Creditors in connection with this bankruptcy
proceeding.
f. 	The Debtor testified that he reviewed the Release Order instructing him to
appear at the 341 Meeting of Creditors with counsel, who also advised him
of the need to appear.
g. 	On March 25, 2010, Mr. Fulcher was released from custody and picked up
by his friend, Graham Dixon. Mr. Dixon provided the Debtor with a car to
drive and a place to stay.
h. 	While staying with Mr. Dixon for few days, the Debtor developed a plan to
go to Florida with Kelli Cox, his girlfriend. He purchased a camper to drive
to Florida.
i. 	The Debtor testified that he did not know why he was going to Florida.
j. 	His friend, Graham Dixon, also provided him with a credit card to use while
he and Kelli were in Florida.
k. 	The Debtor stated that he overslept and did not wake up until 4:00 p.m. or
5:00 p.m. on April 1, 2010. He stated his failure to wake up was the reason
he failed to appear at his scheduled 341 Meeting of Creditors.
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l. 	On April 1, 2010, his attorney telephoned the Debtor about why he did not
appear at his 341 Meeting of Creditors. The Debtor did not bother to call her
back and has not spoken to counsel since his release on March 23, 2010.
m. 	On April 1, 2010, the Debtor was contacted via telephone by Deputy United
States Marshal Daniel Tubman while purchasing a hitch in Raleigh for the
camper. The Debtor told Deputy Marshal Tubman that he would be back in
New Bern in approximately an hour to an hour and a half after their
conversation and that he would surrender at that time. 	Instead of
surrendering to Deputy Marshal Tubman or contacting him, the Debtor
picked up the camper and headed to Florida. He willfully did not surrender
to the custody of the United States Marshal.
n. 	His girlfriend, Kelli Cox, bought the gas for the trip to Florida.
o. 	The Debtor willfully neither contacted the United States Marshal or Deputy
Marshal Tubman, nor did he tell anyone his whereabouts.
p. 	The Debtor intended to stay in Florida for an extended period of time.
q. 	Once in Florida, the Debtor sent a text message to his brother, Glenn Fulcher.
r. 	The Debtor denies contacting Glenn Fulcher via a text message about hiding
the Debtor’s boat.
s. 	The Debtor and Kelli Cox flew back from Florida to get a pickup truck,
located at a specific location. The Debtor instructed Kelli Cox to pick up the
truck.
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t. 	Upon his return to North Carolina, the Debtor made no effort to contact
Deputy U.S. Marshal Daniel Tubman.
Apprehension and Detention is Appropriate Pursuant to Bankruptcy Rule 2005
Based on the foregoing findings of fact, the Court finds that the Chapter 7 Trustee has
satisfied his burden by clear and convincing evidence. Mr. Fulcher willfully disregarded the orders
to appear for examination as required by this Court. As such, apprehension and detention under
FED . R. BANKR . P. 2005 is appropriate.
FED . R. BANKR . P. 2005(c) requires that conditions of release be governed by the policies and
provisions of 18 U.S.C. § 3146(a) and (b). Section 3146 provides that failing to appear is an offense
in and of itself and that the penalty for doing so may not exceed one year.
Recalcitrant Witness
In addition, Mr. Fulcher is a recalcitrant witness pursuant to 28 U.S.C. § 1826 as a result of
repeatedly failing to comply with orders and instructions of this Court. In re Younger, 986 F.2d
1376, 1378 (11th Cir. 1993)(finding that confinement in a bankruptcy case is permitted but limited
to the length of the bankruptcy case or eighteen months, whichever is less); In re Continuum Care,
375 B.R. at 695 (recognizing the applicability of the recalcitrant witness statute in a bankruptcy
proceeding).
Section 1826(a) of Title 28 of the United States Code provides in pertinent part:
Whenever a witness in any proceeding before or ancillary to
any court or grand jury of the United States refuses without
just cause shown to comply with an order of the court to
testify … the court … may summarily order his confinement
at a suitable place until such time as the witness is willing to
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give such testimony ... No period of such confinement shall
exceed the life of … (1) the court proceeding … (2) before
which such refusal to comply with the court order occurred,
but in no event shall such confinement exceed eighteen months.
emphasis added.
By failing to appear at the 341 Meeting of Creditors on April 1, 2010, Mr. Fulcher willfully
refused to testify. This refusal is not exempted from Section 1826(a). The statute is clear that it
applies to any proceeding in a court of the United States. In re Younger, 986 F.2d at 1378.
Therefore, as a recalcitrant witness, Mr. Fulcher can be detained for a period of up to eighteen
months from the date of his confinement or the duration his bankruptcy proceeding, whichever is
less.
Civil Contempt
Judge Humrickhouse recently addressed the requirements of civil contempt in In re Adams.
Bankruptcy Case No. 04-03875-5-SWH (Bankr. E.D.N.C. July 7, 2010). 	The Fourth Circuit
articulated the standard to establish civil contempt in Ashcroft v. Conoco, Inc., 218 F.3d 288, 301
(4 th Cir. 2000). See also In re Adams, Bankruptcy Case No. 04-03875-5-SWH (Bankr. E.D.N.C. July
7, 2010). The four elements required for establishing civil contempt are as follows:
(1) the existence of a valid decree of which the alleged contemnor had actual or
constructive knowledge; (2)...that the decree was in the movant’s “favor”; (3)...that
the alleged contemnor by its conduct violated the terms of the decree; and (4)...that
[the] movant suffered harm as a result.
In re Adams, Bankruptcy Case No. 04-03875-5-SWH (Bankr. E.D.N.C. July 7, 2010)(quoting
Ashcroft v. Conoco, Inc., 218 F.3d at 301). Each of the elements must be established by clear and
convincing evidence. In re Adams, Bankruptcy Case No. 04-03875-5-SWH (Bankr. E.D.N.C. July
7, 2010)(citing Ashcroft v. Conoco, Inc., 218 F.3d at 301).
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There is no dispute that the Release Order and the Apprehension Order are valid decrees of
this Court, of which the Debtor had actual knowledge. The Debtor testified that not only had counsel
informed him that he needed to attend the 341 Meeting of Creditors, but that he also reviewed the
terms of the Release Order himself. Furthermore, Mr. Fulcher did not dispute that he had knowledge
of the Release Order and the requirement that he attend the Meeting of Creditors. He merely stated
his reason for not attending the Meeting of Creditors that he overslept. As to the Apprehension
Order, Mr. Fulcher stated that he spoke with Deputy Marshal Daniel Tubman and that he intended
to surrender to the authorities. As such, he was aware that the Apprehension Order had been entered
and that the United States Marshal was seeking to enforce such order based on his failure to comply
with other orders of this Court.
Although the Release Order permitted the Debtor to be released into custody, the terms of
the Release Order that required him to appear at the Meeting of Creditors were in “favor” of the
Chapter 7 Trustee, who is required to examine the Debtor and dutifully administer an estate.
With respect to the Apprehension Order, the Order was entered in “favor” of the Chapter 7
Trustees and to uphold the integrity of proceedings in this Court. The purpose of the Apprehension
Order was to detain Mr. Fulcher while the Chapter 7 Trustee, and the Chapter 7 Trustee in his
corporate proceedings, conducted certain examinations in connection with the administration of the
estates.
Based on Mr. Fulcher’s testimony, he knew his conduct was in direct conflict with the
Release Order and the Apprehension Order. Mr. Fulcher testified he knew the requirements of the
Release Order but failed to appear at the 341 Meeting of Creditors. Furthermore, he testified that
he spoke with Deputy Marshal Tubman and agreed to surrender, but then failed to meet Deputy
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1 See In re Fulcher Tire Sales & Service, Inc. - Case No. 10-00172-8-RDD; In re TAAF,
LLC - Case No. 10-00171-8-RDD; In re Todd Fulcher, LLC - Case No. 10-00174-8-RDD.
8
Marshal Tubman as he had arranged. 	Mr. Fulcher had no further contact with Deputy Marshal
Tubman until he was apprehended. Deputy Marshal Tubman informed Mr. Fulcher of the
Apprehension Order and Mr. Fulcher did not deny knowledge of the terms of the Release Order or
the Apprehension Order.
Lastly, the estates have suffered harm as the Chapter 7 Trustee has incurred legal fees and
expenses in his prosecution of motions that would not have been needed but for the Debtor’s
violation of the direct and clear terms of the Orders of this Court. Further, the Debtor’s failure to
abide by the orders of this Court have unduly delayed the administration of the estates.
Therefore, this Court finds the Debtor has not complied with orders issued by this Court
which provided direct, clear and specific directions as to the Debtor’s duty to appear at 341 meetings
and to cooperate with the Trustees that have been duly appointed; as well as to surrender himself
in compliance with the Apprehension Order.
Mr. Fulcher’s willful and blatant disregard for the orders of this Court establishes by clear
and convincing evidence that his actions are in civil contempt of this Court. As such, he may be
subject to additional penalties or sanctions in connection therewith which may be determined at a
later date.
CONCLUSION
Detention is permitted pursuant to FED . R. BANKR . P. 2005, 28 U.S.C. § 1826, and the
inherent contempt powers of this Court. To ensure Mr. Fulcher’s cooperation with the Chapter 7
Trustee in his individual proceeding, his cooperation with the Chapter 7 Trustee in three corporate
Chapter 7 cases,1 and his appearance at the Meetings of Creditors in his individual case, Mr. Fulcher
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shall remain in the custody of the United States Marshal until the occurrence of the latter of (1) the
Meeting of Creditors in his individual case is concluded by the Chapter 7 Trustee or (2) until such
time that the Chapter 7 Trustee in his individual case, the Chapter 7 Trustee in his corporate cases,
and the Office of the Bankruptcy Administrator have obtained any and all evidence necessary for
the administration of the requisite bankruptcy estates.
Therefore, Mr. Fulcher shall not be released until the Chapter 7 Trustee in the individual
case, the Chapter 7 Trustee in his corporate cases, and the Bankruptcy Administrator file a joint
Motion to Terminate Confinement of Todd Allen Fulcher setting forth facts supporting the basis for
release.
Further, the United States Marshal shall arrange for confinement of Mr. Fulcher and shall
transport him to and from any hearings or examinations scheduled in this proceeding or any other
proceeding in which Mr. Fulcher is associated that may be pending in this Court.
SO ORDERED.
END OF DOCUMENT
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