EDWARD GAINES, Bankruptcy Judge
The matter before the court is the Motion for Summary Judgment filed by Derek A. Henderson, Trustee in the above styled adversary proceeding. Having considered the matter, the court concludes that the Motion should be granted.
I. FACTUAL BACKGROUND
1. On March 23, 2005, Rebecca Ann Gleghorn filed her petition under Chapter 7 of Title 11 of the United States Code in the United States Bankruptcy Court for the Southern District of Mississippi.
2. A complaint objecting to discharge was filed by Derek A. Henderson, Trustee on June 23, 2005, requesting the court to deny the debtor's discharge pursuant to 11 U.S.C. §§ 727(a)(2), (a)(3), (a)(4), (a)(5) and/or (a)(7).
3. The trustee filed his Motion for Summary Judgment on September 14, 2005, to which no responsive pleading was filed. The statement of Undisputed Facts in Support of the Motion for Summary Judgments sets out the facts upon which the trustee bases his complaint, and which the debtor admitted in her response to the complaint. The Trustee's Undisputed Facts in Support of Motion for Summary Judgment is attached as Exhibit "A" and incorporated herein by reference.
4. The trustee filed his memorandum claiming that there are no disputed factual issues and requesting summary judgment on the actions.
II. CONCLUSIONS OF LAW
The matter before the court is a core proceeding pursuant to 28 U.S.C. § 157. The court has jurisdiction over the parties and subject matter pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157.
The trustee has requested summary judgment pursuant to Federal Rule of Bankruptcy Procedure 7056 which makes applicable Federal Rule of Civil Procedure 56.
Summary judgment is appropriate if no genuine issues of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The Court views the evidence in the light most favorable to the non-movant.
Coleman v. Houston Indep. Sch. Dist., 113 F. 3d 528, 533 (5th Cir. 1997). The non-movant must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial to avoid summary judgment.
Celotex Corp. V. Catrett, 477 U.S. 317, 324,
106 S.Ct. 2548,
91 L.Ed. 2d 265 (1986).
Abarca v. Metropolitan Transit Authority, 404 F. 3d 938, 940 (5th Cir. 2005). Further, in
Society of Lloyd's v. Abransom, 2004 WL 690878 (N.D.Tex. 2004), the court stated:
A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule.
Hibernia Nat'l
Bank v. Administracion Central Sociedad Anonima,
776 F. 3d 1277, 1279 (5th Cir. 1985). However, when the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as
prima facie evidence of its entitlement to judgment.
Eversley v. Mbank Dallas, 843 F. 2d 172, 173-174 (5th Cir. 1999).
Id. at 3.
Insofar as the trustee's causes of action under 11 U.S.C. § 727 contain an element relating to fraudulent intent of the debtor, the court concludes, based on the undisputed facts and documentation set forth by the trustee, that intent may be inferred under the circumstances herein and that the trustee has sufficiently established the elements required for his causes of action and is entitled to judgment in his favor. See, First National Bank, Larned, v. Davison (In re Davison), 2004 WL 2852352 (10th Cir. BAP Kan. 2004) (knowing and fraudulent intent may be inferred through the facts and circumstances of a case); Foster v. Foster (In re Foster), 2006 WL 56862 (Bankr. W.D.Mo. 2006); First Savings Bank v. Turner (In re Turner), 2005 WL 3578795 (Bankr. D.N.M. 2005) (actual intent may be shown through circumstantial evidence from which court may infer whether defendant acted with actual intent to hinder, delay or defraud creditors); Clark v. Reed (In re Reed), 293 BR. 65 (Bankr. D.Kan. 2003) (a finding of actual intent may be based on circumstantial evidence or on inferences drawn from a course of conduct because a debtor is unlikely to testify that the intent was fraudulent). The court concludes that the trustee's Motion for Summary Judgment should be granted.
An order will be entered consistent with these findings and conclusions pursuant to Federal Rule of Bankruptcy Procedure 9021 and Federal Rule of Civil Procedure 58. This opinion shall constitute findings and conclusions pursuant to Federal Rule of Bankruptcy Procedure 7052 and Federal Rule of Civil Procedure 52.
UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
COMES NOW Derek A. Henderson, Trustee and submits this his Itemization of Undisputed Facts in Support of Motion rot Summary Judgment. The Trustee asserts that the following facts are undisputed:
UNDISPUTED FACTS 1.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 28 U.S.C. § 157. This matter is a core proceeding, (Admitted by Debtor's Answer to Complaint, Paragraph 1)
2.
The Plaintiff is Derek A. Henderson the duly appointed Chapter 7 Trustee for the bankruptcy estate of Rebecca Ann Gleghorn, Case No. 05-51170 HEG pending in the United States Bankruptcy Court for the Southern District of Mississippi. The Plaintiff's address if 111 East Capitol Street, Suite 455, Jackson, Mississippi 39201. (Admitted by Debtor's Answer to Complaint, Paragraph 2)
3.
The Defendant is Rebecca Ann Gleghorn, an individual residing in the Southern District of Mississippi and may receive service of process at 6 Theadore Trail, Prentiss, Mississippi 39474. Rebecca Ann Gleghorn is represented by April D. Taylor, Attorney at Law, PLLC, P.O. Box. 1526, Prentiss, Mississippi 39474. (Admitted by Debtor's Answer to Complaint Paragraph 3)
4.
On March 23, 2005, Rebecca Ann Gleghorn ("Debtor") filed her petition under Chapter 7 of the United States Bankruptcy Code before the United States Bankruptcy court for the Southern District of Mississippi. Derek A. Henderson was appointed the Chapter 7 Trustee, (Admitted by Debtor's Answer to Complaint, Paragraph 4)
5.
At the time, of the filing of the, bankruptcy petition, the Debtor also filed schedules and the, statement of financial affairs. The petition, the schedules and the statement of financial affairs were each signed by the, Debtor as being true and correct and under the penalty of perjury. (Admitted by Debtor's Answer to Complaint, Paragraph 5)
6.
By letter dated April 28, 2005, the Trustee requested the Debtor and the Debtor's counsel to provide financial information regarding the Debtor, By letter dated April 12, 2005, the Debtor provided copies of tax returns and bank statements to the Trustee, (Admitted by Debtor's Answer to Complaint, Paragraph 6)
7.
On May 2, 2005, the Debtor's § 341 meeting of creditors was held. During the 341 meeting, the Trustee determined that the Debtor received a state tax refund in the amount of $3,983.00 and a federal tax refund in the amount of S 12,794.(X) just prior to the filing of the bankruptcy petition. The state and federal refunds total $16,777.00. The state refund of $3,983.00 was received on or about March 7, 2005. The federal refunds of $12,794.00 was received on or about March 22, 2005. (Admitted by Debtor's Answer to Complaint, Paragraph 7)
8.
The Trustee requested additional information regarding the $16,777.00. The Debtor asserts that she spent the funds as follows: (1) $500 on March 25, 2005 to Jamesia Showers, a niece for school expense; (ii) $1,794 on March 22, 2005 deposited to her bank account. (iii) $1,000 on March 22, 2005 paid to Keith Gleghorn, This deposit was repayment of two $500 payments Keith Gleghorn made to the Debtor's Union Planters' account on March 9 and March 10, 2005; (iv) $8,000 on March 27, 2005 to Williams Remodeling for an air condition unit replacement, hot water heater replacement and gas pipes. It appears that the total job was $14,000 and the Debtor paid a portion of the money in September 2004. The balance was owed to Williams Remodeling. (V) $1,700 to the Green Grove Missionary Baptist Church for an offering. (Admitted by Debtor's Answer to Complaint Paragraph 8)
9.
According to the Debtor's petition, she signed tho petition on March 22, 2005. The petition was filed with the Court an March 23, 2005. (Admitted by Debtor's Answer to Complaint, Paragraph 9)
10.
Under the Debtor's Schedule B, Item No. 1, the Debtor lists no cash on hand. Under the Debtor's Schedule B, Item No. 2, the Debtor lists two (2) bank accounts totaling $1,100, Under Schedule B, Item No. 17, the Debtor lists no tax refunds. Under Schedule P, the Debtor does not list any debt owed to William Remodeling. (Admitted by Debtor's Answer to Complaint, Paragraph 10)
11.
Under the Debtor's Statement of Financial Affairs, Item No. 1, the Debtor has income of approximately $80,000 to $90,000 annually, (Admitted by Debtor's Answer to Complaint Paragraph 11)
12.
Under the Debtor's Statement of financial Affairs, Item No. 3, the debtor only lists payments made within ninety (90) days to Trust mark National Bank and Shell. The Debtor does not list any payments made to an insider, (Admitted by Debtor's Answer to Complaint, Paragraph 12)
13.
According to the Debtor's Schedule I and J, the Debtor has excess income in the amount of approximately $2,000 per month. (Admitted by Debtor's Answer to Complaint, Paragraph 13)