UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MONTANA

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1 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 1 of 22 James Knoepp Georgia Bar Number (Admitted pro hac vice) Southern Poverty Law Center 233 Peachtree Street NE, Suite 2150 Atlanta, GA Telephone: (404) Facsimile: (404) Jennifer A. Beardsley Montana Bar Number 8680 Beardsley Law Office, PLLC P.O. Box 975 Bonner, Montana Telephone: (406) Facsimile: (406) Attorneys for Plaintiffs UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MONTANA ) IN RE: JERRY ALBERT ELLER, ) Case No Debtor. ) ) Chapter 7 ESCOLASTICO DE LEON ) GRANADOS, ISAIAS PROFETA ) Adversary Proceeding No.: DE LEON GRANADOS, and ) ARMENIO PABLO CALMO, ) on behalf of themselves and all others ) similarly situated, ) COMPLAINT OBJECTING TO Plaintiffs, ) DISCHARGEABILITY OF vs. ) DEBTS AND DISCHARGE OF ) DEBTOR JERRY ALBERT ELLER, ) Defendant. ) CLASS ACTION )

2 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 2 of 22 Plaintiffs, on behalf of themselves and all others similarly situated, through counsel, hereby object pursuant to 11 U.S.C. 523 to the discharge of debts owed to them by Jerry Albert Eller ( Defendant or Debtor ), and also object to the discharge, in general, of Debtor pursuant to 11 U.S.C. 727, and respectfully represent as follows: JURISDICTION AND VENUE 1. The Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. 1334, 11 U.S.C. 523(a) and 727, and Bankruptcy Rule This adversary proceeding is one arising out of the Debtor filing a voluntary petition under chapter 7 of the Bankruptcy Code, which is case # pending in this Court. This is a core proceeding. 2. Venue is proper in this Court pursuant to 28 U.S.C and BACKGROUND AND FACTS 3. Plaintiffs Escolastico De Leon Granados, Isaias Profeta De Leon Granados, and Armenio Pablo Calmo ( Plaintiffs ), as well as the class of workers they represent, are foreign nationals who were previously employed by Defendant pursuant to H-2B temporary work visas. The Plaintiffs and the class of workers they represent are creditors of Defendant. 4. On June 6, 2005, Plaintiffs, on behalf of themselves and all others similarly situated, filed a class action complaint against Defendant Jerry Eller in 2

3 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 3 of 22 the United States District Court for the Northern District of Georgia, Atlanta Division, Case Number 1:05-CV-1473 (hereinafter the Class Action Litigation ). 5. In the Class Action Litigation, Plaintiffs alleged that they and their fellow class members had been subjected by the Defendant to willful violations of the Fair Labor Standards Act ( FLSA ), 29 U.S.C , as well as intentional violations of the Migrant and Seasonal Agricultural Worker Protection Act ( AWPA ), 29 U.S.C On October 15, 2005, the court in the Class Action Litigation certified Plaintiffs FLSA claims as a collective action, permitting individuals to opt-in to the case in which the Plaintiffs were serving as their representatives. A list of the twenty-three individuals who comprise the FLSA class is attached hereto as Exhibit A. Plaintiffs seek to represent these same individuals for purposes of this adversary proceeding with respect to whether the debts owed to them for violations of the FLSA should be deemed non-dischargeable pursuant to 11 U.S.C. 523(a)(6). 7. On September 28, 2006, the court in the Class Action Litigation certified Plaintiffs AWPA claims as a class action pursuant to Federal Rule of Civil Procedure 23. The Plaintiffs here are the representatives of a certified class defined as: all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(b), who were employed in the 3

4 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 4 of 22 Defendants forestry operations from June 1999 until the present. See De Leon Granados v. Eller & Sons Trees, Inc., No. 1:05-CV-1473, 2006 U.S. Dist. LEXIS 73781, at *52 (N.D. Ga. Sept. 28, 2006), aff d, 497 F.3d 1214 (11th Cir. 2007). The class consists of approximately 4,000 individuals. Plaintiffs seek to represent the same class of individuals in this adversary proceeding with respect to whether the debts owed to them for violations of the AWPA should be deemed nondischargeable pursuant to 11 U.S.C. 523(a)(6). 8. After extensive discovery and motions practice in the Class Action Litigation, the parties filed cross-motions for summary judgment on a number of issues, including whether the Defendant was liable to the Plaintiffs and the class members for willful violations of the FLSA and intentional violations of the AWPA. 9. On October 7, 2008, the court in the Class Action Litigation granted Plaintiffs motion for summary judgment and denied Defendant s motion for summary judgment on both the FLSA and AWPA claims. 10. In its summary judgment ruling, the court in the Class Action Litigation found that Defendant had willfully violated the FLSA by failing to pay the Plaintiffs and the twenty-three FLSA class members the minimum wage. See De Leon Granados v. Eller & Sons Trees, Inc., 581 F. Supp. 2d 1295,

5 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 5 of 22 (N.D. Ga. 2008). 1 The court also found that the Plaintiffs and the twenty-three FLSA class members were entitled to liquidated damages in an amount equal to their unpaid minimum wages because Defendant was unable to establish that his failure to pay the minimum wage was in good faith and objectively reasonable. See id. at The court in the Class Action Litigation awarded Plaintiffs and the FLSA class members $53, in unpaid wages and liquidated damages. This figure was later corrected by the court on November 4, 2009, to $57, in unpaid wages and liquidated damages pursuant to the FLSA. See Order dated November 4, 2009 (attached hereto as Exhibit B). 12. As a result of the Plaintiffs and the FLSA class members prevailing on their FLSA claims in the Class Action Litigation, Plaintiffs and the FLSA class members are entitled to an award of attorneys fees and costs pursuant to the FLSA, 29 U.S.C Prior to the filing of Defendant s bankruptcy petition, the court in the Class Action Litigation had not determined the amount of attorneys 1 The summary judgment decision refers to twenty-five individuals who were found to have been owed minimum wages and liquidated damages by the Defendant due to violations of the FLSA. This was erroneous and due to an error by Plaintiffs that was later corrected by the court, which amended its summary judgment award to include the twenty-six individuals (the three lead Plaintiffs and twenty-three class members) identified on Exhibit A attached hereto. See Order dated November 4, 2009 (attached hereto as Exhibit B). 5

6 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 6 of 22 fees and costs to which Plaintiffs and the FLSA class members were entitled in addition to the minimum wages and liquidated damages they were awarded. 13. In its summary judgment ruling, the court in the Class Action Litigation also found that Defendant violated the AWPA by failing to pay the Plaintiffs and the AWPA class members their wages when due, and by violating, without justification, the working arrangement entered into between the Defendant and the Plaintiffs and other AWPA class members. See De Leon Granados, 581 F. Supp. 2d at , The court also determined that Defendant s violations of the AWPA were intentional. See id. at On September 29, 2009, the court in the Class Action Litigation ruled on additional cross motions for summary judgment in the Class Action Litigation and found that Defendant intentionally violated the AWPA by failing to make, keep, and preserve accurate and complete records regarding the Plaintiffs and class members employment. See Order dated September 29, 2009 (attached hereto as Exhibit C). 15. On August 26, 2010, the parties in the Class Action Litigation filed a stipulation with the court that the actual damages related to the Plaintiffs and AWPA class members claims for failure to pay wages when due and violation of the working arrangement were $11,320, See Stipulation filed August 26, 2010 (attached hereto as Exhibit D). 6

7 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 7 of On September 23, 2010, Defendant filed a voluntary petition under chapter 7 of the Bankruptcy Code in this Court. Prior to the filing of Defendant s voluntary petition, the court in the Class Action Litigation had not yet ruled on the amount of statutory damages the Plaintiffs and class members were entitled to for the additional violation of the AWPA recordkeeping provisions found by the court on September 29, The questions regarding the amount of AWPA statutory damages and the amount of attorneys fees and costs are the sole outstanding issues remaining in the Class Action Litigation. CLASS ACTION ALLEGATIONS 18. Plaintiffs reallege and incorporate by reference each and every statement and allegation contained in paragraphs 1 through 17 above. 19. Plaintiffs have already been certified by the United States District Court for the Northern District of Georgia as the representatives of a class under the FLSA consisting of twenty-three additional individuals. This prior certification decision is subject to collateral estoppel in this proceeding and should not be relitigated. 20. Alternatively, Plaintiffs assert that they are similarly situated to the other twenty-three individuals they seek to represent in this proceeding (see Exhibit A attached hereto) such that certification of a FLSA class is appropriate by 7

8 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 8 of 22 this Court even absent collateral estoppel. Plaintiffs and the twenty-three FLSA class members were all paid by Defendant in the same manner and according to the same employment practices, and each of them was not paid proper minimum wages by the Defendant in the exact same manner. 21. Plaintiffs have already been certified by the United States District Court for the Northern District of Georgia as the representatives of a Federal Rule of Civil Procedure 23 class under the AWPA consisting of approximately 4,000 individuals. This certification decision was upheld on appeal by the United States Court of Appeals for the Eleventh Circuit. The AWPA class certification decision, and its affirmance, are subject to collateral estoppel in this proceeding and should not be re-litigated. 22. Alternatively and as outlined in paragraphs 23 to 27 below, Plaintiffs satisfy all of the requirements of Federal Rule of Civil Procedure 23, which applies to these proceedings pursuant to Federal Rule of Bankruptcy Procedure 7023, such that certification of a class is appropriate by this Court even absent collateral estoppel. 23. The class Plaintiffs seek to represent is defined as: all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(b), who were employed in the Defendants forestry operations from June 1999 until the present. See De Leon Granados v. Eller & Sons Trees, 8

9 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 9 of 22 Inc., No. 1:05-CV-1473, 2006 U.S. Dist. LEXIS 73781, at *52 (N.D. Ga. Sept. 28, 2006), aff d, 497 F.3d 1214 (11th Cir. 2007). 2 The class consists of approximately 4,000 individuals who maintain their permanent residences in Guatemala and/or Mexico and migrate frequently for work pursuant to temporary visas. As such, the class is so numerous that joinder of all members is impracticable. 24. There are questions of law or fact common to the class. In particular, whether the debts owed to Plaintiffs and the AWPA class members for Defendant s violations of the AWPA are for willful and malicious injury such that they should not be discharged under 11 U.S.C. 523(a)(6) is common to all members. 25. The claims of the Plaintiffs are typical of the claims of the class in that Plaintiffs and class members were all subjected to identical violations of the AWPA and the same willful and malicious injuries for which they are seeking a determination of non-dischargeability pursuant to 11 U.S.C. 523(a)(6). 26. The Plaintiffs have no conflicts with the AWPA class members and will fairly and adequately represent the interests of the class. Plaintiffs have 2 As was their right under Rule 23, some individuals opted-out of the class certified by the court in the Class Action Litigation. The Plaintiffs here do not seek to represent those individuals, who are no longer members of the class. 9

10 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 10 of 22 counsel experienced in class action litigation who will adequately represent the interests of all class members. 27. Questions of law and fact common to the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and adequately adjudicating this matter. Whether the debts owed to the Plaintiffs and AWPA class members by Defendant is for a willful and malicious injury will be determined without reference to any issues affecting individual class members. In addition, the class members have no interest or ability to individually prosecute their own actions in this Court, and the underlying Class Action Litigation involving the debts owed to the class members by Defendant has already determined that Defendant intentionally violated the AWPA on a class-wide basis. COUNT I NON-DISCHARGEABILITY OF DEBTS PURSUANT TO 11 U.S.C. 523(a)(6) FOR WILLFUL AND MALICIOUS INJURY BY DEBTOR TO THE PLAINTIFFS AND FLSA CLASS MEMBERS 28. Plaintiffs reallege and incorporate by reference each and every statement and allegation contained in paragraphs 1 through 27 above. 29. Plaintiffs and the twenty-three FLSA class members they represent were employed by Defendant in his forestry contracting business as H-2B temporary foreign workers. 10

11 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 11 of As already determined by the United States District Court for the Northern District of Georgia, the Plaintiffs and FLSA class members were not paid the minimum wage by Defendant as required by law and suffered damages as a result. 31. As already determined by the United States District Court for the Northern District of Georgia, the Defendant s failure to pay the Plaintiffs and the FLSA class members the minimum wage was willful, without a good faith basis for believing his actions were in conformity with the law, and was not objectively reasonable. 32. Defendant s failure to pay the Plaintiffs and the FLSA class members the minimum wage in accordance with the FLSA was an intentional and wrongful act which caused Plaintiffs and the FLSA class members injury in the form of lost wages. Defendant s failure to pay the Plaintiffs and the FLSA class members the minimum wage was done without just cause or excuse. Defendant had the clear ability to pay the Plaintiffs and the FLSA class members the proper wages in accordance with federal law, but simply chose not to. 33. Defendant s failure to pay the Plaintiffs and the FLSA class members properly in accordance with the FLSA caused a willful and malicious injury to them such that the debts owed by Defendant to the Plaintiffs and the FLSA class members, including attorneys fees and costs to which they are entitled under the 11

12 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 12 of 22 FLSA. Therefore, pursuant to 11 U.S.C. 523(a)(6), the Debtor in not entitled to a discharge of such debts. COUNT II NON-DISCHARGEABILITY OF DEBTS PURSUANT TO 11 U.S.C. 523(a)(6) FOR WILLFUL AND MALICIOUS INJURY BY DEBTOR TO THE PLAINTIFFS AND AWPA CLASS MEMBERS 34. Plaintiffs reallege and incorporate by reference each and every statement and allegation contained in paragraphs 1 through 33 above. 35. Plaintiffs and the approximate 4,000 AWPA class members they represent were employed by Defendant in his forestry contracting business as H- 2B temporary foreign workers. 36. As already determined by the United States District Court for the Northern District of Georgia, the Plaintiffs and the AWPA class members were not paid their proper wages when due by the Defendant and the Defendant violated the terms of the working arrangement that applied to his employment of the Plaintiffs and the AWPA class members. 37. As already determined by the United States District Court for the Northern District of Georgia, the Defendant s failure to pay the Plaintiffs and the AWPA class members their proper wages when due, as well as the Defendant s violation of the Plaintiffs and AWPA class members working arrangements, were intentional violations of the AWPA. 12

13 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 13 of As a result of the Defendant s intentional violations of the AWPA, Defendant owes the Plaintiffs and AWPA class members a debt of at least $11,320,646.95, representing the actual damages stipulated to by Defendant and the Plaintiffs and AWPA class members based on the court s rulings in the Class Action Litigation. This figure is based on the Defendant s violation of the AWPA provision related to the failure to pay wages when due and the violation of the AWPA working arrangements. 39. As already determined by the United States District Court for the Northern District of Georgia, the Defendant also intentionally violated the AWPA s recordkeeping provisions with respect to the Plaintiffs and AWPA class members by failing to make, keep, and preserve accurate records related to their employment, for which they are entitled to an award of statutory damages pursuant to the AWPA. 40. As a result of the violations of the AWPA recordkeeping provisions as outlined above in paragraph 39, the Plaintiffs and the AWPA class members are owed an additional amount in statutory damages, not to exceed $500, Defendant s violations of the AWPA with respect to the Plaintiffs and the AWPA class members were intentional and wrongful acts which caused the Plaintiffs and the AWPA class members injury in the form of lost wages. Defendant s violations of the AWPA were done without just cause or excuse. 13

14 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 14 of Defendant s violations of the AWPA caused a willful and malicious injury to the Plaintiffs and the AWPA class members such that the debts owed by Defendant to them are non-dischargeable pursuant to 11 U.S.C. 523(a)(6). COUNT III NON-DISCHARGE UNDER 11 U.S.C. 727(a)(4)(A) 43. Plaintiffs reallege and incorporate by reference each and every statement and allegation contained in paragraphs 1 through 42 above. 44. Defendant signed his voluntary petition, schedule, and statement of financial affairs under penalty of perjury on September 24, On November 29, 2010, the trustee commenced the meeting of creditors pursuant to 11 U.S.C At the meeting the Defendant appeared and reaffirmed, under oath, the accuracy and completeness of his voluntary petition, schedules, and statement of financial affairs after making a few minor corrections not relevant here. 46. Official Bankruptcy Form Schedule B - Personal Property required Defendant to disclose all of his personal property assets. Plaintiffs allege that the Defendant did not disclose all of his personal property assets and knowingly and fraudulently, in connection with this case, made false oaths or accounts regarding the disposition, ownership, and transfer of assets in order to prevent such assets from being reachable by creditors. 14

15 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 15 of The Defendant listed on his voluntary petition a 2005 Dodge Caravan as the sole property of his wife, Yvonne Eller. The 2005 Dodge Caravan was paid for, in part, using the separate funds of the Defendant, and/or was paid for, in part, with joint marital funds. As such, Defendant had an interest in the 2005 Dodge Caravan that should have been disclosed on Schedule B. Defendant s failure to disclose an interest in the 2005 Dodge Caravan was a knowing and fraudulent making of a false oath or account in connection with his bankruptcy case. 48. The Defendant listed on his voluntary petition a 2001 Ford F-350 as the sole property of his wife, Yvonne Eller. The 2001 Ford F-350 was Defendant s work vehicle provided by Eller & Sons Trees, Inc. that was purchased by Yvonne Eller on or about February 9, 2009, for $11,000. At the time of the purchase, Eller & Sons Trees, Inc. was a corporation that had ceased operations and of which Defendant was the 100% shareholder. 49. At the time of the purchase of the Ford F-350 in February, 2009, Yvonne Eller did not have sufficient sources of funds from which to make the purchase of the Ford F-350. The 2001 Ford F-350 was purchased, in part, using the separate funds of the Defendant, and/or was purchased, in part, with joint marital funds. As such, Defendant had an interest in the 2001 Ford F-350 that should have been disclosed on Schedule B. His failure to disclose an interest in the 15

16 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 16 of Ford F-350 was a knowing and fraudulent making of a false oath or account in connection with his bankruptcy case. 50. The Defendant listed on his voluntary petition a 2009 Toyota Sienna van as the sole property of his wife, Yvonne Eller. The 2009 Toyota Sienna was purchased brand new from a dealership in July 2009, for approximately $25,000 and titled in the name of Yvonne Eller only. Defendant provided a check to the dealership in the amount of $19,500 from his separate bank account toward the purchase price, while Yvonne Eller provided a check in the amount of $4,500 from her separate bank account. In addition, a vehicle believed to be owned jointly by Defendant and his wife was used as a trade-in toward the purchase of the 2009 Toyota Sienna. As such, Debtor had an interest in the 2009 Toyota Sienna that should have been disclosed on Schedule B. Defendant s failure to disclose an interest in the 2009 Toyota Sienna was a knowing and fraudulent making of a false oath or account in connection with his bankruptcy case. 51. The Defendant listed on his voluntary petition a John Deere backhoe, a John Deere mower, a table saw, a welder, and an anti-freeze exchanger as the sole property of his wife, Yvonne Eller. On or about April 22, 2009, Yvonne Eller purchased the items listed above for $9, from Eller and Sons Trees, Inc., a corporation that had ceased operations and of which Defendant was the 100% shareholder. 16

17 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 17 of At the time of the purchase Yvonne Eller did not have sufficient sources of funds from which to make the purchase of the items listed above in paragraph 51. The items listed above in paragraph 51 were purchased, in part, using the separate funds of the Defendant, and/or were purchased, in part, with joint marital funds. As such, Defendant had an interest in the items listed above in paragraph 51that should have been disclosed on Schedule B. His failure to disclose an interest in the items listed above in paragraph 51 was a knowing and fraudulent making of a false oath or account in connection with his bankruptcy case. 53. During the two years prior to filing his voluntary petition, Defendant made numerous transfers of money to his wife, Yvonne Eller, by writing checks to her from his personal bank account that were then deposited in the separate account of his wife, none of which were disclosed on Statement of Financial Affairs #10 on his voluntary petition. The funds transferred from the Defendant to his wife were then used, in part, to make the purchases of items described above in paragraphs 47 through 52 that are claimed to be owned solely by Defendant s wife. Defendant s failure to disclose these transfers was a knowing and fraudulent making of a false oath or account in connection with his bankruptcy case. 54. In addition to the items already identified above, the Defendant listed on pages 115 and 128 of his voluntary petition a number of additional personal 17

18 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 18 of 22 items as the sole property of his wife, Yvonne Eller. These additional personal items that were listed as the sole property of Defendant s wife on the voluntary petition were actually items that were acquired using joint marital funds. These items were listed as the sole property of Defendant s wife on the voluntary petition solely because she uses the items more than Defendant and so they would not be subject to the bankruptcy estate. 55. Defendant s failure to disclose his interest in these additional items described in paragraph 54 was a knowing and fraudulent making of a false oath or account in connection with his bankruptcy case. 56. Schedule D-Creditors Holding Secured Claims required Defendant to accurately list all secured debts. 57. On Schedule D, Defendant listed an alleged debt owing to his wife, Yvonne Eller, in the amount of $328,557 that is allegedly secured by a mortgage on the home they own jointly in Trout Creek, Montana. 58. The alleged security interest held by Yvonne Eller relates to a promissory note provided to her by Defendant involving one-half of the marital funds used in a failed investment with Rippatoe Placer, LLC. 59. The promissory note provided by Defendant to his wife did not involve the loan of any money from Yvonne Eller to the Defendant and lacks consideration. 18

19 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 19 of Defendant knew at the time of his bankruptcy filing that the alleged security interest held by his wife as a result of the promissory note did not involve a loan of money to him from his wife. In fact, Defendant and his wife wrote off a portion of the amounts identified in the promissory note and mortgage as investment losses on their joint federal tax returns more than a year before recording the mortgage and more than two years before Defendant filed his voluntary petition. 61. The Defendant s listing of this alleged security interest constitutes the knowing and fraudulent making of a false oath or account in connection with his bankruptcy case. 62. Furthermore, the Defendant s listing of the security interest at the value provided on his schedules without taking into account the fact that a substantial portion had been written off on his joint taxes as an investment loss constitutes the knowing and fraudulent making of a false oath or account in connection with his bankruptcy case. 63. Pursuant to 11 U.S.C. 727(a)(4)(A), Defendant is not entitled to a discharge based on the actions detailed above, all of which involve the knowing and fraudulent making of false oaths or accounts in connection with his bankruptcy case. 19

20 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 20 of 22 COUNT IV NON-DISCHARGE UNDER 11 U.S.C. 727(a)(2) 64. Plaintiffs reallege and incorporate by reference each and every statement and allegation contained in paragraphs 1 through 63 above. 65. By his actions as described in paragraphs 46 through 62 above, as well as other actions, Defendant has transferred, removed, or concealed property he owned with the intent to hinder, delay, or defraud creditors and to prevent his assets from being reached by creditors. Alternatively, Defendant has permitted to be transferred, removed, or concealed property he owned with the intent to hinder, delay, or defraud creditors and to prevent his assets from being reached by creditors. 66. Although the actions described in paragraphs 46 through 62 above occurred more than one year prior to the Defendant filing his voluntary petition, Defendant continued to use and enjoy the property identified in paragraphs 46 through 62, and retained a secret beneficial interest in the identified property, during the year prior to the filing of his voluntary petition. 67. Pursuant to 11 U.S.C. 727(a)(2), Defendant is not entitled to a discharge based on the actions detailed above. 20

21 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 21 of 22 WHEREFORE, Plaintiffs pray for relief as follows: 1. With respect to Count I, that the Court appoint them as the representatives of a certified class consisting of the twenty-three FLSA class members and treat the claims in Count I as being brought on behalf of the Plaintiffs and the FLSA class members; 2. With respect to Count II, that the Court appoint them as the representatives of a certified class consisting of the AWPA class members and treat the claims in Count II as being brought on behalf of the Plaintiffs and the AWPA class members; 3. With respect to Count I, enter judgment and an order denying Defendant a discharge with respect to the FLSA debts owed to the Plaintiffs and the twenty-three FLSA class members, including attorneys fees and costs, pursuant to 11 U.S.C. 523(a)(6); 4. With respect to Count II, enter judgment and an order denying Defendant a discharge with respect to the AWPA debts owed to the Plaintiffs and the AWPA class members pursuant to 11 U.S.C. 523(a)(6); 5. With respect to Count III, enter judgment and an order denying Defendant a discharge pursuant to 11 U.S.C. 727(a)(4)(A); 6. With respect to Count IV, enter judgment and an order denying Defendant a discharge pursuant to 11 U.S.C. 727(a)(2); 21

22 RBK Doc#: 1 Filed: 03/15/11 Entered: 03/15/11 11:56:59 Page 22 of 22 action; and 7. For an award of costs and attorneys fees incurred in prosecuting this 8. For such other and further relief as the Court deems just and proper. DATED this 15th day of March, Respectfully Submitted, /s/ James M. Knoepp James Knoepp Georgia Bar Number (Admitted pro hac vice) Southern Poverty Law Center 233 Peachtree Street NE, Suite 2150 Atlanta, GA Telephone: (404) Fax: (404) /s/ Jennifer A. Beardsley Jennifer A. Beardsley Montana Bar Number 8680 Beardsley Law Office, PLLC P.O. Box 975 Bonner, Montana Telephone: (406) Fax: (406) Attorneys for Plaintiffs/De Leon Granados, et al. Creditors 22

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