Old Republic National Title v. Levasseur

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Norman H. Stahl, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [13-1869]

Case: 13-1869

Document: 00116625465

Page: 1

Date Filed: 12/16/2013

Entry ID: 5788109

United States Court of Appeals
For the First Circuit
No. 13-1869
IN RE: ANDREA LEVASSEUR,
Debtor.

OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY,
Appellee,
v.
ANDREA LEVASSEUR,
Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]

Before
Lynch, Chief Judge,
Stahl and Lipez, Circuit Judges.

David G. Baker on brief for appellant.
Howard M. Brown, David C. Phalen, Lauren A. Solar, and
Bartlett Hackett Feinberg P.C. on brief for appellee.

December 16, 2013

Case: 13-1869

Document: 00116625465

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Date Filed: 12/16/2013

Entry ID: 5788109

LYNCH, Chief Judge. A customer's taking advantage of her
bank's mistake led to this case. Andrea Levasseur appeals from the
district court's affirmance of the bankruptcy court's determination
that her debt to Old Republic National Title Insurance Company
("Old Republic") was not dischargeable in bankruptcy because it was
for

money

she

obtained

by

false

pretenses,

see

11

U.S.C.

§ 523(a)(2)(A), and because it was a debt arising from willful and
malicious injury, see id. § 523(a)(6).

Finding no error in either

the bankruptcy or the district court decisions, we affirm.

See In

re Levasseur, No. 12-12414-DPW, 2013 WL 2436688 (D. Mass. June 3,
2013); In re Levasseur, 482 B.R. 15 (Bankr. D. Mass. 2012).
This case is clear, and there is no need to write
extensively, given the reasoning offered by the bankruptcy and
district courts.

See Moses v. Mele, 711 F.3d 213, 216 (1st Cir.

2013).
I.
The bankruptcy court made the following findings of fact,
based in part on its own assessment of Levasseur's testimony.

In

March 2003, Levasseur1 entered into a loan agreement with Fleet
Bank for a home equity line of credit secured by a second mortgage
on her home on Wethersfield Street in Rowley, Massachusetts.
original Home Equity Line credit limit was $124,200.

1

The

At the same

At this point, Levasseur was known as Andrea Sullivan. On
October 17, 2003, she married William Levasseur and took his name.
We refer to her as Levasseur throughout.
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time, Levasseur also opened an ordinary Fleet Checking Account, for
which Fleet sent her a starter check booklet. The checking account
number, 9467788365, appeared at the bottom of the starter checks.
The checks allowed her to draw on her available credit by writing
checks on this checking account, up to her credit limit.
On November 14, 2003, Levasseur sold the Rowley Property,
and from the sale proceeds paid off both her first mortgage and the
Fleet Home Equity Account in full.

Levasseur knew that the Home

Equity Account would no longer be available to her when she sold
the Rowley Property.

Since she had no equity left in the Rowley

Property, there was no equity to secure a home equity line of
credit to her.

She had worked as a real estate agent and had

participated in closings before.
By the time of the events of this case, Levasseur was
living

with

her

family

in

a

different

home

in

Byfield,

Massachusetts that she purchased in June 2003, and she had notified
Fleet of her new address.

She did not, however, notify Fleet that

she sold the Rowley Property.
Sometime before June 1, 2005, Fleet and Bank of America
merged, and Bank of America became the successor by merger to Fleet
with respect to Levasseur's Home Equity Line and checking account.
Periodically, Levasseur received statements at her new address from
Fleet or Bank of America regarding the Home Equity Account, because
the credit line had never been formally closed following the sale

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of the Rowley Property.2

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One such statement indicated that the

available credit on the Home Equity Line was $124,200.

The

bankruptcy court found that from such statements, Levasseur knew it
was possible that Fleet and Bank of America had inadvertently left
the line of credit open.
By June 2005, Levasseur's husband's business was in
financial distress, and her family was having trouble paying its
bills on time.

On June 15, she wrote a $50,000 check, made payable

to "Andrea P. Sullivan," her former name, using one of her Fleet
starter checks, which she had been provided to use with the
checking account she had opened.

The check displayed her checking

account number, 9467788365; however, in the memo line, she wrote
"75620032059124," which was her Home Equity Line account number.
She endorsed the back of this check with two signatures: one as
Andrea

P.

Sullivan

and

the

other

as

Andrea

Levasseur.

She

deposited that check into a Georgetown Savings Bank account that
she shared with her husband.

As of that date, the Fleet/Bank of

America checking account bearing the number on the bottom of the
starter check, 9467788365, was a closed account.
On June 16, she obtained an official check from Bank of
America's Newburyport branch for $100,000 on her Fleet Home Equity
Line, which she also deposited in her Georgetown Savings account.

2

Although the Home Equity Account had been paid in full, the
formal discharge of the Home Equity Mortgage was not recorded until
after the events of the case.
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The Newburyport branch, which previously had been a Fleet branch,
was where Levasseur had executed the closing documents for the Home
Equity Line in 2003.
The

first

check

(for

$50,000)

was

returned

for

insufficient funds around June 21, because that check was drawn on
her closed checking account.

Her Georgetown Savings account was

accordingly debited $50,000.
On July 19, Levasseur obtained a $24,200 cashier's check
from the same Newburyport branch, again made payable to "Andrea P.
Sullivan," which she endorsed and deposited in the Georgetown
Savings account as well.

The June 16 and July 19 official checks

totaled $124,200, the exact limit on the Home Equity Line.
The bankruptcy court also found that the Newburyport Bank
of America tellers, based on available records, could not have
determined that the Home Equity Account should have been closed
when the Rowley Property was sold and that Levasseur's check
requests should accordingly have been denied. The bankruptcy court
found that Levasseur's testimony that she thought at the time that
she was drawing on a different loan than the Home Equity Account
was "thoroughly implausible."

In re Levasseur, 482 B.R. at 25.

Levasseur then failed to pay back the $124,200 drawn from
the

Rowley

Home

Equity

Account.

Bank

of

America

commenced

foreclosure proceedings on the Rowley Property.

The new owners

were

debt

insured

by

Old

Republic,

which

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paid

the

to

avoid

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foreclosure and took an assignment of all of Bank of America's
rights against Levasseur.

In October 2006, Old Republic brought

suit against Levasseur in state court.

When she failed to defend,

a default judgment was entered against her on May 23, 2007.

When

Levasseur failed to satisfy an initial execution of judgment, the
court issued an alias execution on September 12, 2007, in the
amount of $159,845.95 plus postjudgment interest at a rate of 12
percent per year.
In December 2007, Levasseur filed for bankruptcy.

In

August 2008, Old Republic sought a determination that its prepetition judgment was excepted from discharge as a debt for fraud,
false pretenses or misrepresentation, 11 U.S.C. § 523(a)(2), and
willful and malicious injury, id. § 523(a)(6).

The bankruptcy

court agreed on both grounds, In re Levasseur, 482 B.R. at 30, 32.
We find no error and affirm.
II.
This court's review directly addresses the bankruptcy
court's decision, and we review findings of fact for clear error
and conclusions of law de novo.

Gannett v. Carp (In re Carp), 340

F.3d 15, 21 (1st Cir. 2003).
For

the

debt

to

be

non-dischargeable

in

bankruptcy

because it was obtained under false pretenses, see 11 U.S.C.
§ 523(a)(2)(A), Old Republic had to prove that Levasseur made a
false

representation

with

fraudulent

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intent

(i.e.,

with

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"scienter"), that she intended to induce the bank to justifiably
rely on her misrepresentation, that the bank did in fact rely on
the representation, and that the reliance caused a pecuniary loss.
See Palmacci v. Umpierrez, 121 F.3d 781, 786 (1st Cir. 1997).

A

false pretense or misrepresentation can be created "when the
circumstances imply a particular set of facts, and one party knows
the facts to be otherwise," and where the silent party "may have a
duty to correct what would otherwise be a false impression." In re
Moen, 238 B.R. 785, 791 (B.A.P. 8th Cir. 1999) (quoting In re
Malcom, 145 B.R. 259, 263 (Bankr. N.D. Ill. 1992)).

Similarly,

scienter is established where an individual "knows or believes that
the matter is not as [s]he represents it to be."

Palmacci, 121

F.3d at 787 (quoting Restatement (Second) of Torts § 526).
The

record

plainly

supports

the

bankruptcy

court's

conclusion that Levasseur was fully aware that the Home Equity
Account should no longer have been available for her use after the
sale of the Rowley Property. Levasseur had not applied for any new
lines of credit at Bank of America.

The court did not err in

rejecting her implausible contention that she thought she was
drawing on a new line of credit (in the exact amount of the earlier
Home Equity Line).

When she twice visited the Newburyport branch

to obtain certified checks from an account that she knew should not
have been available, Levasseur acted under false pretenses and with
an intent to defraud.

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As

to

the

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remaining

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elements

Entry ID: 5788109

required

§ 523(a)(2)(A), the bankruptcy court was again correct.

under

Levasseur

"did not alert the bank to what [s]he knew to be an error because
[s]he planned to use the error to h[er] advantage."
238 B.R. at 793.

In re Moen,

Her intent was to obtain the two bank checks --

to induce the bank's reliance on her request -- and it is plain
that the bank did in fact rely on her representations.

In light of

the information available to the Bank of America tellers at the
time, it was not at all apparent to them that the account should
have been closed, and their reliance on Levasseur's representations
was justifiable.

See In re Aoki, 323 B.R. 803, 816 (B.A.P. 1st

Cir. 2005) (noting the "relatively low" standard for justifiable
reliance and stating that "a party may justifiably rely on a
misrepresentation even when he could have ascertained its falsity
by conducting an investigation").

Finally, the Bank's pecuniary

losses that resulted from Levasseur's actions are quite clear.
We affirm the bankruptcy court's finding that the debt is
non-dischargeable under § 523(a)(2)(A).

This alone is sufficient

to sustain the outcome below, but we also affirm the bankruptcy
court's alternative holding that the debt is not dischargeable on
the basis of § 523(a)(6).
Section 523(a)(6) of the Bankruptcy Code exempts from
discharge any debt "for willful and malicious injury by the debtor
to another entity or to the property of another entity." 11 U.S.C.

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§ 523(a)(6) (emphasis added).

Date Filed: 12/16/2013

Entry ID: 5788109

An injury is malicious "if it was

wrongful and without just cause or excuse, even in the absence of
personal hatred, spite or ill-will."

Printy

v. Dean Witter

Reynolds, Inc., 110 F.3d 853, 859 (1st Cir. 1997) (quoting 4
Collier on Bankruptcy ¶ 523.12 (15th ed. 1996)).

The injury must

have been committed in "conscious disregard of one's duties." Id.
Willfulness requires "a showing of intent to injure or at least of
intent to do an act which the debtor is substantially certain will
lead to the injury in question."

In re Neronha, 344 B.R. 229, 231

(Bankr. D. Mass. 2006).
The record abundantly supports the bankruptcy court's
determination that Levasseur's "objectively wrongful" actions,
"committed in conscious disregard of her duty not to deceive,"
Levasseur,

482

B.R.

at

32,

were

malicious.

Likewise,

the

willfulness requirement was satisfied by Levasseur's deliberate use
of a false pretense -- that the Home Equity Line was and should
still have been available to her following the Rowley Property sale
-- to obtain $124,200 from Bank of America.
Further, our decision in Printy supports this result.
The debtor in Printy took advantage of a stock brokerage's computer
error,

which

incorrectly

credited

his

account

an

extra

$3.5

million, by withdrawing and borrowing against funds that the debtor
knew he did not own.

110 F.3d at 859-60.

So too here: Levasseur

took full advantage of Bank of America's error in failing to close

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her Home Equity Account when she sold the Rowley property and gave
the Bank no notice of the sale.

The bankruptcy court was correct

to find the debt to be non-dischargeable, and we affirm on those
grounds.

We

need

not

reach

the

other

grounds

for

non-

dischargeability under § 523(a).
Levasseur mounts an additional argument.

She contends

that the bankruptcy court erred when it granted Old Republic's
motion to strike a portion of her pretrial memorandum and for
sanctions.

The bankruptcy court granted Old Republic's motion

after Levasseur missed multiple deadlines set by the pretrial order
and failed to cooperate in the submission of a joint pretrial
memorandum.

A bankruptcy court "has broad discretion to preserve

the integrity of a pretrial order," and we have noted that "an
appellate court generally should not interfere with a trial court's
decision to admit or exclude evidence based on its interpretation
of its own pretrial order."

Alberty-Vélez v. Corporación de P.R.

para la Difusión Pública, 242 F.3d 418, 423 (1st Cir. 2001).

Our

review is for abuse of discretion, see id., and there was none.
III.
The judgment of the bankruptcy court is affirmed.
are awarded to Old Republic.

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Costs