APPLING v. LAMAR, ARCHER & COFRIN, LLP
Filing
13
ORDER that the decision of the Bankruptcy Court be AFFIRMED. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 3/28/16. (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
R. SCOTT APPLING,
:
:
Appellant,
:
:
v.
:
3:15‐CV‐031 (CAR)
:
:
LAMAR, ARCHER & COFRIN, LLP, :
:
Appellee.
:
_____________________________________ :
ORDER ON APPEAL
Before the Court is an appeal from the decision of the United States Bankruptcy
Court for the Middle District of Georgia, Athens Division. On appeal, Appellant‐Debtor
R. Scott Appling contends the Bankruptcy Court erred in concluding that the
$104,179.60 owed to Appellant Lamar, Archer & Cofrin, LLP, is nondischargeable in
bankruptcy under 11 U.S.C. § 523(a)(2)(A). This Court has considered the record, the
briefs filed by both parties, and the relevant case law. For the reasons discussed below,
the decision of the Bankruptcy Court is hereby AFFIRMED.
LEGAL STANDARD
The Court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 158(a). In
reviewing the decision of a bankruptcy court, a district court functions as an appellate
1
court.1 The Court must accept the Bankruptcy Court’s findings of fact, unless those
facts are clearly erroneous.2 The Court may not make independent factual findings.3
Conclusions of law, however, including the Bankruptcy Court’s interpretation and
application of the United States Bankruptcy Code, are reviewed de novo.4 Thus, this
Court owes no deference to the Bankruptcy Court’s interpretation of the law or its
application of the law to the facts.5
BACKGROUND
In 2004, Appellant Appling purchased a business that manufactured seating
components. Appellant subsequently learned he had been defrauded in the purchase
based on a misrepresentation of the business’s financial condition. He hired Appellee
Lamar, Archer & Cofrin, LLP to represent him as counsel. They worked for Appellant
on an hourly basis with fees due monthly. Appellant also hired Walter Gordon as local
counsel. Representing Appellant, Appellee filed suit against the seller and broker of the
business in the Superior Court of Franklin County, Georgia.
By March 16, 2005, Appellant owed Appellee $60,819.97 in unpaid legal fees.
Additionally, he owed Gordon around $18,000 in legal fees. Appellant emailed
1 See Williams v. EMC Mortg. Corp. (In re Williams), 216 F.3d 1295, 1296 (11th Cir. 2000) (per
curiam).
2 Id.
3 Equitable Life Assurance Socʹy v. Sublett (In re Sublett), 895 F.2d 1381, 1384 (11th Cir. 1990).
4 See Nordberg v. Arab Banking Corp. (In re Chase & Sanborn Corp.), 904 F.2d 588, 593 (11th Cir.
1990).
5 Goerg v. Parungao (In re Goerg), 930 F.2d 1563, 1566 (11th Cir. 1991).
2
Appellee complaining about the status and expenses of the litigation. In response,
partner Robert Lamar notified Appellant that failure to bring fees current would cause
Appellee to terminate its representation and place an attorney’s lien on Appellant’s file.6
On March 18, Appellant, Appellee, and Gordon met in Gordon’s office. Appellee
contends at the meeting Appellant stated his accountant, Mike Strickland, had
completed his amended tax return, and Appellant would receive a tax refund of
$104,000 to $105,000. Because this amount would be sufficient to bring the account
current and pay future fees, and because Appellant stated he would use the money for
this purpose, Appellee agreed to continue the representation. 7 At trial, the Bankruptcy
Court found Appellant did not represent at the March meeting that his accountant had
already prepared the tax return. However, the Bankruptcy court did find Appellant
represented that he would receive a tax refund of approximately $100,000.
On June 15, Appellant and his wife signed the amended tax return for the year
2002; however, this return only requested a refund of $60,718. On October 6, the I.R.S.
informed Appellant he and his wife would receive a refund of $59,851. Within two
weeks of receiving the letter from the I.R.S., Appellant and his wife obtained a refund of
$59,851. However, Appellant did not use the refund to pay his attorneys.
On November 2, 2005, Appellant and his wife met Appellee in its office for the
second time to discuss the unpaid legal fees and status of Appellee’s representation.
6 [Doc. 3] at 43.
7 Id. at 17.
3
Appellant contends he informed Appellee he planned to use the tax refund to keep his
floundering business afloat instead of paying Appellee. However, the Bankruptcy Court
found Appellant represented to Appellee he had not yet received his refund, and he
would use his refund to pay the outstanding legal fees.8
In June 2006, a few months after the underlying litigation settled, Appellee
learned Appellant had received the refund and used it to prop up his business, not to
pay Appellee. In a letter dated June 26, Appellee demanded payment of the outstanding
legal fees within fourteen days. On July 19, Appellant responded that after the
November 2 meeting, his bankruptcy attorney suggested using the tax refund to help
his business instead of paying Appellee, and told Appellee, “[i]t should be obvious as to
what I chose to do since we are still open.”9
In October 2012, after not receiving payment, Appellee sued Appellant in the
Superior Court of Hart County, Georgia, and obtained a judgment for $104,179.60. In
January 2013, Appellant and his wife filed a petition under Chapter 7 of the Bankruptcy
Code. In an adversary proceeding, Appellee sought to have its claim against Appellant
rendered nondischargeable under 11 U.S.C. § 523(a)(2)(A). The Bankruptcy Court
concluded on March 10, 2015 that Appellant’s debt is nondischargeable, and this appeal
followed.
8 Id. at 68‐69; see also [Doc. 1‐2] at 14.
9 [Doc. 3] at 73.
4
ISSUES ON APPEAL
A. Whether the Bankruptcy Court erred in ruling Appellant’s alleged representation
was not an “oral statement respecting the debtor’s financial condition” under 11
U.S.C. § 523(a)(2)(A).
B. Whether the Bankruptcy Court erred in determining Appellee has a
nondischargeable claim against Appellant.
C. Whether the Bankruptcy Court erred in failing to apply the heightened standards
required under 11 U.S.C. § 523(a)(2)(A) and relevant case law for statements
concerning future acts and omissions.
D. Whether the Bankruptcy Court erred in determining Appellee proved reliance,
much less justifiable reliance, on any representation of Appellant.
E. Whether the Bankruptcy Court erred in determining damages as being the whole
amount of Appellee’s claim rather than measuring damages based on the alleged
misrepresentation itself.
DISCUSSION
I. Statement Respecting Debtor’s Financial Condition
Chapter 7 of the Bankruptcy Code provides for the discharge of certain debts
incurred by a debtor, allowing the debtor to obtain a fresh start.10 However, there are
10 Bandi v. Becnel (In re Bandi), 683 F.3d 671, 674 (2012) (citing 11 U.S.C. § 727).
5
exceptions to discharge, some of which are intended to protect victims of fraud.11 This
appeal’s threshold issue centers around the Bankruptcy Court’s interpretation of one of
those exceptions, 11 U.S.C. § 523(a)(2)(A).12
Pursuant to § 523(a)(2)(A), a debt “for money, property, services, or an extension,
renewal, or refinancing of credit” is nondischargeable “to the extent obtained by false
pretenses, a false representation, or actual fraud, other than a statement respecting the
debtor’s or an insider’s financial condition.” Additionally, a false oral statement is
sufficient to render a debt nondischargeable under § 523(a)(2)(A).13 Therefore, under
§ 523(a)(2)(A), for a false oral statement to be nondischargeable it must not be a
statement “respecting the debtor’s … financial condition.”14
Courts disagree whether to construe the phrase “respecting the debtor’s . . .
financial condition” broadly or strictly.15 According to the broad interpretation, “any
communication that has a bearing on the debtor’s financial position,” even if it only
pertains to a single asset, qualifies as a statement respecting the debtor’s financial
11 Id. (citing 11 U.S.C. § 523).
12 The sister exception to §523 (a)(2)(A) is § 523(a)(2)(B), which covers a debtor’s false “written
statement” of her financial condition. See Generac Power Systems, Inc., v. William A. Dato (In re
Dato), 410 B.R. 106, 110 (Bankr. S.D. Fla. 2009).
13 Ershowsky v. Freedman (In re Freedman), 427 F. App’x. 813, 818 (11th Cir. 2011) (per curiam). See
also Butler v. Roberts (In re Roberts), 54 B.R. 765, 770 (Bankr. D. N.D. 1985) (noting that subsection
“(a)(2)(A) includes any acts or statements including those made orally but excludes oral
statements respecting the debtorʹs financial condition”) (emphasis in original).
14 See Supra note 13.
15 Prim Capital Corp. v. May (In re May), 368 B.R. 85, 2007 WL 2052185, at *6 (6th Cir. BAP July 19,
2007) (unpublished decision).
6
condition.16 Under this interpretation, statements involving “conditions to purchase of
an asset, ownership of particular property, indebtedness to a creditor and
encumbrances on assets” qualify as statements respecting the debtor’s financial
condition.17 In contrast, the strict interpretation limits a statement respecting the
debtor’s financial condition to “financial‐type statements including balance sheets,
income statements, statements of changes in financial position, or income and debt
statements that provide what may be described as the debtor[’s] . . . net worth, overall
financial health, or equation of assets and liabilities.”18
This case turns on whether the Bankruptcy Court properly interpreted the phrase
“a statement respecting a debtor’s financial condition.” Although historically a majority
of courts followed the broad interpretation,19 in recent years, the majority of courts have
adopted the strict interpretation.20 The Eleventh Circuit, however, has yet to address
16 Id.
17 Skull Valley Band of Goshute Indians v. Chivers (In re Chivers), 275 B.R. 606, 614 (Bankr. D. Ut.
2002).
18 Id. at 615.
19 Id. at 615. See also Engler v. Van Steinburg (In re Steinburg), 744 F.2d 1060 (4th Cir. 1984); Conn.
Nat’l Bank v. Panaia (In re Panaia), 61 B.R. 959 (Bankr. D. Mass. 1986); King v. Prestridge (In re
Prestridge), 45 B.R. 681 (Bankr. W.D. Tenn. 1985).
20 In re Chivers, 275 B.R. at 615. See also Jokay Co. v. Mercado (In re Mercado), 144 B.R. 879, 881‐86
(Bankr. C.D. Cal. 1992); Weiss v. Alicea (In re Alicea), 230 B.R. 492, 503 (Bankr. S.D. N.Y. 1999)
(holding that “[t]he arguments supporting the strict view are more persuasive” because “[t]hey
are consistent with ordinary usage and faithful to the intent of Congress as reflected in the
statements of the sponsors” and “better reflect[] the limited purpose that subdivision (B) was
intended to serve”); Gehlhausen et al. v. Olinger (In re Olinger), 160 B.R. 1004, 1009 (Bankr. S.D.
Ind. 1993) (holding that “[t]he ordinary usage of ‘statement’ in connection with ‘financial
condition’ denotes either a representation of a personʹs overall ‘net worth’ or a personʹs overall
ability to generate income”); Bal‐Ross Grocers, Inc., v. Sansoucy (In re Sanscoucy); 136 B.R. 20, 23
7
this issue. Although the Fourth Circuit 21 follows the broad interpretation, the Fifth,22
Eighth, 23 and Tenth Circuits24 have adopted the strict interpretation. Finding the
reasoning of the Fifth Circuit persuasive, this Court finds that the Bankruptcy Court
rightly adopted the strict interpretation of § 523(a)(2)(A).25
As the Fifth Circuit has noted, other provisions of the Bankruptcy Code to
construe the phrase “financial condition” “to connote the overall net worth of an entity
or individual.”26 Indeed, the Supreme Court has interpreted a statement of financial
condition as equivalent to a statement about the debtor’s “bank balance.”27 Other courts,
like the fifth Circuit, have adopted the strict interpretation of “financial condition” and
(Bankr. D. N.H. 1992) (holding that “financial condition” refers to “a balance sheet and/or profit
and loss statement or other accounting of an entityʹs overall financial health and not a mere
statement as to a single asset or liability”).
21 In re Van Steinburg, 744 F.2d at 1060‐61.
22 In re Bandi, 683 F.3d at 676 (holding that “financial condition” means “the general overall
financial condition of an entity or individual, that is, the overall value of property and income
as compared to debt and liabilities”).
23 Rose v. Lauer (In re Lauer), 371 F.3d 406, 413 (8th Cir. 2004). Although the Eighth Circuit did not
explicitly endorse the strict interpretation, the Fifth Circuit notes that the Eighth Circuit’s
reasoning is consistent with the strict interpretation.
24 Cadwell v. Joelson (In re Joelson), 427 F.3d 700, 706‐07 (10th Cir. 2005).
25 Lamar, Archer & Cofrin v. Appling (In re Appling), 500 B.R. 246, 251 (Bankr. M.D. Ga. 2013).
26 Bandi v. Becnel (In re Bandi), 683 F.3d 671, 676‐77 (5th Cir. 2012) (citing 11 U.S.C. § 101(32)(A)‐
(C)).
27 Id. at 675 n.16 (quoting Field v. Mans, 516 U.S. 59, 76 (1995)). In Field, the Court repeatedly
refers to “false financial statements,” undermining the argument that Congress had not
intended to limit § 523(a)(2)(B) to false financial statements, which previously had been “the
strongest argument in favor of the broad interpretation.” In re Chivers, 275 B.R. at 615 (citing
Field, 516 U.S. at 76‐77).
8
argue that it better comports with normal commercial usage,28 the Bankruptcy Code’s
legislative history,29 a harmonious reading of the Code,30 and the purpose of §
523(a)(2)(B).31 This Court concurs. Accordingly, statements respecting the debtor’s
financial condition involve the debtor’s net worth, overall financial health, or equation
of assets and liabilities. A statement pertaining to a single asset is not a statement of
financial condition.
On appeal, Appellant argues this Court should follow the broad interpretation in
accordance with Bancorpsouth Bank v. Callaway (In re Callaway)32 and Baker v. Sharpe (In re
Sharpe).33 However, even the court in Callaway acknowledged that “a strict approach is
preferable to an overly broad approach” to the meaning of the term “financial
condition.”34 More importantly, the court in Callaway relied on the Bankruptcy
28 Chivers, 275 B.R. at 614‐16 (quoting Mercado, 144 B.R. at 885) (noting the argument that “the
normal commercial meaning and usage” of a statement of financial condition indicates either a
representation of net worth or overall ability to generate income).
29 Id. at 615 (citing In re Alicea, 230 B.R. at 501‐05 (noting the argument that the legislative history
refers to “false financial statement[s]”).
30 Id. (citing In re Sansoucy, 136 B.R. at 23) (noting the argument that “narrowing the definition of
financial condition in § 523(a)(2)(B) necessarily expands those statements, both written and oral,
that do not relate to financial condition that fall within § 523(a)(2)(A) and better harmonizes the
statute”).
31 Id. (citing Field, 516 U.S. at 76‐77) (noting the argument that Congress designed § 523(a)(2)(B)
to protect debtors from abusive lending practices). The Supreme Court’s “recitation of the
history of § 523(a)(2)(B) and its goal of preventing abuse by consumer finance companies . . .
lends strong support for adoption of the strict interpretation.” Id.
32 2006 WL 6589022 (Bankr. N.D. Ga. Nov. 28, 2006).
33 351 B.R. 409 (Bankr. N.D. Tex. 2006).
34 Callaway, 2006 WL 6589022, at *21.
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Appellate Panel’s holding in Cadwell v. Joelson (In re Joelson),35 which the Tenth Circuit
later reversed.36 Likewise, the Fifth Circuit’s decision in Bandi v. Becnel (In re Bandi)37
abrogated the holding of Sharpe on this issue.38 Therefore, the Court finds neither case
pervasive.
In the present case, the alleged misrepresentations consisted of two oral
statements by Appellant. Therefore, to establish the debt’s nondischargeability,
Appellee needed to show that Appellant’s statements did not involve Appellant’s
financial condition. Here, the Bankruptcy Court took the strict approach to the phrase
“respecting the debtor’s . . . financial condition,” and found Appellant’s statements
about his tax refund involved a single asset rather than Appellant’s net worth, overall
financial health, or equation of assets and liabilities, therefore, making it subject to §
523(a)(2)(A).39 Because the statements did not concern Appellant’s financial condition,
this Court finds the Bankruptcy Court did not err in holding Appellee stated a claim
under § 523(a)(2)(A).
II. Nondischargeability
35 307 B.R. 689 (10th Cir. 2004).
36 In re Joelson, 427 F.3d at 715 (holding that “a statement about one of [the debtor’s] assets is not
a statement” that respects the debtor’s financial condition and that “a statement about one part
of [the debtor’s] income flow . . . does not reflect [the debtor’s] overall financial health” and,
therefore, does not respect the debtor’s financial condition).
37 In re Bandi, 683 F.3d at 676.
38 Id.
39 In re Appling, 500 B.R. at 251.
10
Under § 523(a)(2)(A), a debtor who makes a false statement not involving
financial condition does not receive a discharge “for money, property, services, or an
extension, renewal, or refinancing of credit, to the extent obtained by false pretenses, a
false representation, or actual fraud. . . .”40 To establish an exception to discharge under
this section, the creditor must show that “the debtor made a false statement with the
purpose and intention of deceiving the creditor; the creditor relied on such false
statement; the creditorʹs reliance on the false statement was justifiably founded; and the
creditor sustained damage as a result of the false statement.”41 An objecting creditor
must prove each element by a preponderance of the evidence.42 However, the “courts
generally construe the statutory exceptions to discharge ‘liberally in favor of the
debtor.’”43
A. False Statement with Intent to Deceive
To establish the first element of § 523(a)(2)(A), the creditor must show “that the
debtor made a ‘false representation’ . . . with the intent to deceive the creditor.”44 The
debtor’s “statement of intent to perform an act in the future will not generally form the
basis of a false representation that is actionable under section 523(a)(2)(A) unless the
creditor can establish that the debtor lacked the subject intent to perform the act at the
40 11 U.S.C. § 523(a)(2)(A).
41 Johannessen et al. v. Johannessen (In re Johannessen), 76 F.3d 347, 350 (11th Cir. 1996).
42 Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 304 (11th Cir. 1994) (citing Grogan v. Garner,
498 U.S. 279, 291 (1991)).
43 Id. (citing Boroff v. Tully (In re Tully), 818 F.2d 106, 110 (1st Cir. 1987)).
44 Duncan v. Bucciarelli (In re Bucciarelli), 429 B.R. 372, 375 (Bankr. N.D. Ga. 2010).
11
time the statement was made.”45Accordingly, the finder of fact must determine whether
the debtor “in good faith . . . intended to keep his promise.”46 While an honest but
unreasonable belief in the truth of the representation does not by itself establish deceit,
“the very unreasonableness of such a belief may be strong evidence that it does not in
fact exist.”47 Moreover, the court may infer intent to deceive from the debtor’s reckless
disregard for the veracity of a statement.48
Because debtors generally do not admit they made a promise with the intent to
deceive the creditor or without the intent to perform, the court may “infer such
fraudulent intent from the facts and circumstances of the case.”49 The debtor’s
fraudulent intent constitutes an issue of fact and, therefore, this Court must review the
Bankruptcy Court’s determination under the “clearly erroneous” standard.50 Because a
determination of intent “depends largely upon an assessment of the credibility and
demeanor of the debtor, deference to the Bankruptcy Courtʹs factual findings is
particularly appropriate.”51
Here, Appellant first argues the Bankruptcy Court erred in finding Appellant
made a false representation. Appellant points to his testimony, as well as Gordon’s
45 Id. (citing Allison v. Roberts (In re Allison), 960 F.2d 481 (5th Cir. 1992)).
46 Palmacci v. Umpierrez, 121 F.3d 781, 788 (1st Cir. 1997).
47 Id. (emphasis in original).
48 In re Miller, 39 F.3d at 305.
49 In re Bucciarelli, 429 B.R. at 375‐76 (Bankr. N.D. Ga. 2010).
50 Barnett v. Osbourne (In re Osborne), 455 B.R. 247, 252 (Bankr. M.D. Fla. 2010).
51 Williamson v. Fireman’s Fund Insurance Co., 828 F.2d 249, 252 (4th Cir. 1987).
12
testimony, that he never stated a set amount for the expected tax refund in the March
2005 meeting. However, Lamar testified to the contrary, stating that Appellant said he
“had met with his accountant and that they had already prepared the tax return for
[sic], and he . . . was going to get a substantial refund, he represented in excess of
$100,000” that he would use to pay the existing debt and future fees and expenses.52
Because the Bankruptcy Court’s finding of fact was supported by Lamar’s testimony,
this Court cannot say based on contradictory testimony it was clearly erroneous.53
Next, Appellant challenges the Bankruptcy Court’s factual finding Appellant
intended to deceive Appellee when he stated the refund would be approximately
$100,000. The Bankruptcy Court made this finding after multiplying Appellant’s income
in 2002 and 2003 by a 28 percent tax rate.54 Because Appellant related two different
versions, the Bankruptcy Court found that the total amount of taxes paid was either
$87,640 or $84,990.55 In either case, the Bankruptcy Court found it implausible that
Appellant’s accountant would have told Appellant that his potential tax refund would
52 [Doc. 3] at 216.
53 United States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994) (noting that the appellate court “will
not ordinarily review the factfinderʹs determination of credibility”); see also Palmacci, 121 F.3d at
785 (noting “[p]articular deference” is due to the bankruptcy courtʹs “findings that depend on
the credibility of other witnesses and on the weight to be accorded to such testimony”).
54 [Doc. 1‐2] at 10‐11.
55 Id.
13
have been over $100,000. Therefore, the Bankruptcy Court concluded that Appellant did
not honestly believe he would receive a refund of over $100,000.56
On appeal, Appellant asserts the Bankruptcy Court speculated about what the
accountant would have said about prevailing tax rates and argues the Bankruptcy
Court’s assumptions about tax rates do not constitute evidence. However, we conclude
the Bankruptcy Court did not err. Appellant testified his accountant calculated his
expected tax refund using a 28 percent interest rate; therefore, the Bankruptcy Court
based its findings on the evidence of Appellant’s own testimony rather than
speculations or assumptions.57
Appellant also challenges the Bankruptcy Court’s factual finding that he made a
misrepresentation at the November 2005 meeting. In making its finding, the Bankruptcy
Court relied on Lamar’s testimony that Appellant falsely stated he had not yet received
the refund check. Similar to his arguments regarding the March meeting, Appellant
proffers his testimony as well as his wife’s, which contradicted Lamar’s testimony.
Additionally, he contends the Bankruptcy Court violated Federal Rule of Evidence 1003
when it based its finding of a misrepresentation on its “suspicions” about Appellant’s
introduction of a copy of his wife’s notes from the March meeting, rather than
submitting the original notes.58 Appellant further contends the Bankruptcy Court erred
56 Id.
57 [Doc. 3] at 305.
58 [Doc. 1‐2] at 14.
14
in finding fault with Appellant’s submission of the copy of the notes rather than the
original because Appellee failed to object to the admission of the copy. This Court finds
Appellant’s arguments unpersuasive.
Rule 1003 concerns the admissibility of a copy of an original document.59 The
credibility to be accorded the duplicate remains a question of fact.60 Acting as finder of
fact, the Bankruptcy Court found the admission of the copy rather than the original
raised suspicions. Because the Bankruptcy Court’s finding involved the credibility or
weight to be given the document, it did not violate Rule 1003.
Moreover, even if the Bankruptcy Court’s suspicions about the notes violated
Rule 1003, these suspicions did not constitute the Bankruptcy Court’s sole basis for its
findings. The Bankruptcy Court explicitly based its findings on the demeanor of the
witnesses, the conflicting testimony given by Appellant and his wife, and Appellant’s
failure to remind Lamar of his supposed November statements in the letter sent to
Lamar in July 2006.61 Consequently, this Court cannot say the Bankruptcy Court
committed clear error by crediting the testimony of one witness over that of others.
59 Fed. R. Evid. 1003. The Rule provides that “[a] duplicate is admissible to the same extent as the
original unless a genuine question is raised about the originalʹs authenticity or the
circumstances make it unfair to admit the duplicate” (emphasis added).
60 Hill v. City of Houston, 235 F.3d 1339 (Table), 2000 WL 1672663, *7 (5th Cir. 2000) (noting that
“under either rule [1003 or 1008], the question of whether [the document] is a fake or rather an
authentic copy, [is] a fact question which [is] properly submitted to the jury”) (unpublished
opinion).
61 [Doc. 1‐2] at 14.
15
Finally, Appellant contends the Bankruptcy Court erred by failing to “apply the
heightened standards required under 11 U.S.C. § 523(a)(2)(A) and relevant case law for
statements concerning future acts and omissions.”62 In other words, Appellant argues
the Bankruptcy Court improperly found Appellant actually intended to deceive
Appellee in making his statement in March 2005 regarding the amount of his expected
tax refund.
To constitute fraud under § 523(a)(2)(A), a false statement concerning a future act
or omission requires “actual intent to mislead, which is more than mere negligence.”63
However, a court may infer actual intent to deceive from the debtor’s reckless disregard
for the truth of the representation.64 The debtor’s knowledge that he cannot pay
constitutes a circumstance from which the court may infer intent to deceive.65
According to Appellant, his statement in March 2005 as to the amount of his
expected tax return involved a future act and was an earnestly held belief, thereby
precluding a finding of fraud absent actual intent not to perform. In support of his
contention that he merely held an “overly optimistic” belief that his tax return would
amount to approximately $100,000,66 Appellant cites In re Hill.67 In Hill, the bankruptcy
court found that no fraudulent misrepresentation occurred where the debtor claimed he
62 [Doc. 9] at 17.
63 Palmacci, 121 F.3d at 788.
64 Id. at 788‐89 (citing Ins. Co. of N. Am. v. Cohn (In re Cohn), 54 F.3d 1108, 1118‐19 (3d Cir. 1995)).
65 Id. at 789.
66 [Doc. 12] at 3.
67 425 B.R. 766 (Bankr. W.D. N.C. 2010).
16
would pay legal fees by refinancing his house, even though he was completing a credit
counseling course as a prerequisite to filing in bankruptcy. However, unlike the present
case, the court in Hill found that although the debtor’s belief that he would be able to
pay the legal fees was “unrealistic, [the debtor’s] intention appear[ed] earnestly held.”68
Here, the Bankruptcy Court inferred Appellant’s intent to deceive based on the
impossibility of Appellant’s representation that his income multiplied by his stated tax
rate could produce a tax refund of approximately $100,000 and found Appellant’s belief
was not earnestly held—in other words, Appellant intended to deceive Appellee.
Because this Court must give great deference to the Bankruptcy Court’s factual findings
regarding intent,69 we conclude the mathematical unreasonableness of Appellant’s
alleged belief constitutes sufficient evidence the belief was not earnestly held. 70
Therefore, the Bankruptcy Court did not commit clear error by finding Appellant
knowingly misrepresented the amount of the tax refund.
Moreover, even if the Bankruptcy Court had improperly found Appellant
actually intended to deceive Appellee in the March 2005 statement, its conclusion is not
error because Appellant’s November 2005 statement did not involve a future act or
68 Id. at 776.
69 Williams v. Fireman’s Fund Insurance Co., 828 F.2d at 252.
70 Appellant further argues that the United States Supreme Court’s holding in Bullock v.
Bankchampaign, N.A., 133 S. Ct. 1754 (2013), effectively abrogates a creditor’s ability to establish
intent to deceive based on reckless disregard. However, Bullock involved the scienter
requirement for defalcation under 11 U.S.C. § 523(a)(4) and has no application here. Moreover,
to the extent Appellant raises an equitable argument based on the totality of the circumstances,
this Court is not persuaded that Appellee’s allegation of fraud requires strict scrutiny.
17
intentional omission. At the November meeting, Appellant stated he had not yet
received the tax refund, when in fact he had. Because this second misrepresentation
involved a past event known at the time by Appellant to be false, Appellant cannot
plausibly claim he lacked intent to deceive in making the statement. Consequently, the
Bankruptcy Court did not err in finding Appellant made a false statement with intent to
deceive.
B. Justifiable Reliance
Although the text of § 523(a)(2)(A) does not impose a reliance requirement, the
United States Supreme Court has held that, in accordance with common law tort
principles of fraud, an exception to discharge under this section requires justifiable
reliance by the creditor on the debtor’s false statement.71 The justifiable reliance
standard “does not mean that [the creditor’s] conduct must conform to the standard of
the reasonable man.”72 Instead, “[j]ustification is a matter of the qualities and
characteristics of the particular plaintiff, and the circumstances of the particular case,
rather than of the application of a community standard of conduct to all cases.”73
Accordingly, the justifiable reliance standard is “less demanding” than the standard of
reasonable reliance.74 Under the justifiable reliance standard, the creditor need only
investigate the facts if, “under the circumstances, the facts should be apparent to one of
71 Field, 516 U.S. at 69‐75.
72 Id. at 70‐71 (quoting Restatement (Second) of Torts, § 545A, Comment b (1976)).
73 Id. at 71 (quoting Restatement (Second) of Torts, § 545A, Comment b (1976)).
74 Id. at 61.
18
his knowledge and intelligence from a cursory glance, or he has discovered something
which should serve as a warning that he is being deceived.”75 Justifiable reliance
“requires only that the creditor did not ‘blindly [rely] upon a misrepresentation the
falsity of which would be patent to him if he had utilized his opportunity to make a
cursory examination or investigation.’”76
Here, Appellant argues the Bankruptcy Court erred in finding Appellee relied,
much less justifiably relied, on Appellant’s false statement. Appellant contends
Appellee could not have relied on Appellant’s March 2005 statement that his future tax
refund would be sufficient to pay the unpaid fees because Appellee knew of
Appellant’s poor financial condition. In particular, Appellant points to the facts that
Appellee spoke to a bankruptcy attorney about Appellant, asked Appellant’s mother to
pay the bill at one point, and admitted it knew of Appellant’s financial problems arising
from the business. Moreover, Appellant contends Appellee’s actions after the March
2005 indicate a lack of reliance given that Appellee did not know the IRS would even
approve the tax return, did not review the tax return, did not draw up any documents
to reflect assignment of the funds from the tax return, and did not write a letter
confirming its conversations with Appellant.
Contrary to Appellant’s assertions, however, whatever Appellee may have
known or suspected about Appellant’s financial condition has no bearing on whether
75 Id. at 71‐72 (quoting W. Prosser, Law of Torts § 108, p. 718 (4th ed. 1971)).
76 Ojeda v. Goldberg, 599 F.3d 712, 717 (7th Cir. 2010) (quoting Field, 516 U.S. at 71).
19
Appellee justifiably relied upon Appellant’s statement in March 2005 that he would
receive a tax refund. Appellant can point to no evidence of deceit with respect to the tax
refund that should have been apparent to Appellee upon a “cursory examination.”77
Poor overall financial health does not inherently preclude receipt of a substantial tax
refund. Therefore, under the justifiable reliance standard, Appellee had no duty to
investigate the matter. That Appellant did, in fact, receive a significant tax refund in the
amount of $59,851 only underscores the justifiability of Appellee’s reliance, even if the
refund was considerably less than Appellant had promised. Moreover, Appellant fails
to cite any evidence specific to the November 2005 statement indicating Appellee could
not have justifiably relied upon the statement. To the extent Appellant argues that
Appellee’s knowledge of Appellant’s general financial condition precluded justifiable
reliance, that argument fails for the same reasons it fails for the March 2005 statement.
At trial, Lamar testified Appellee agreed to continue representing Appellant in
reliance on Appellant’s false statements about the tax refund. Lamar further testified
that had Appellee known the truth, it would have stopped the representation, put an
attorney’s lien on Appellant’s file, and begun collection of unpaid fees. Because
Appellant has no evidence that should have alerted Appellee to Appellant’s deceit
specifically regarding the tax refund, the Bankruptcy Court did not err in determining
Appellee established justifiable reliance.
77 Id.
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III. Damages
Section 523(a)(2)(A) of the Bankruptcy Code renders nondischargeable certain
fraudulently‐incurred debts “for money, property, services, or an extension, renewal, or
refinancing of credit, to the extent obtained by false pretenses, a false representation, or
actual fraud . . . .”78 Consequently, the statute applies to both “the primary debtor‐
creditor relationship” and “secondary debt transactions.”79 While the primary debtor‐
creditor relationship involves provision of money, property, or services, secondary debt
transactions include extensions, renewals, and refinancing.80 A secondary debt
transaction constitutes “an autonomous transaction that results in the lengthening of a
debtor‐creditor relationship” whereby “the creditor grants a reprieve to the debtor.”81
Therefore, an extension of credit represents “an agreed enlargement of time allowed for
payment.”82
Although the Eleventh Circuit has not addressed the issue, several courts have
held § 523(a)(2) does not impose a “new money” requirement on claims arising out of
secondary debt transactions. 83 In other words, “a false representation in connection with
78 11 U.S.C. § 523(a)(2)(A).
79 Foley & Lardner v. Biondo (In re Biondo), 180 F.3d 126, 131‐32 (4th Cir. 1999).
80 Id.
81 Id.
82 Id.
83 See Household Fin. Corp. v. Greenidge (In re Greenidge), 75 B.R. 245, 247 (Bankr. M.D. Ga. 1987)
(holding that “the better view is that a false representation in connection with a renewal or
21
a renewal or refinancing of credit may render the entire debt nondischargeable” even if
the creditor did not lend new money in reliance on the false statement.84
Here, Appellant argues the Bankruptcy Court erred in measuring damages by
the entire amount of Appellee’s claim rather than by the damages arising after
Appellant’s misrepresentation. Appellant does not seriously dispute the absence of a per
se “new money” requirement for nondischargeability. Instead, he argues the measure of
damages is zero because Appellee extended no new net value after Appellant’s false
statement in March 2005. In support of this argument, Appellant cites Household Finance
Corp. v. Greenidge (In re Greenidge), wherein the Bankruptcy Court held that, even
without a “new money” requirement, the refinanced portion of the debt was
dischargeable because the creditor failed to establish its reliance as to that portion.85 In
effect, Appellant seeks to import a “new money” requirement into the measure of
damages. Under such a rule, a creditor attempting to establish the nondischargeability
of a debt would have to prove “how it would have collected the debt, what assets
refinancing of credit may render the entire debt nondischargeable”); Cho Hung Bank v. Kim (In re
Kim), 62 F.3d 1511 (9th Cir. 1995) (citing Cho Hung Bank v. Kim (In re Kim), 163 B.R. 157, 159 (9th
Cir. BAP (Cal.) 1994)) (adopting Bankruptcy Appellate Panel’s holding that there is no
requirement that “‘an extension of credit’ be joined by an advance of further funds in order for a
creditor to have a claim for relief”); In re Ojeda, 599 F.3d at 720 (holding that because creditor
forbore from collecting the entire debt due to debtor’s fraudulent inducement, the entire debt
was nondischargeable); Wolf v. Campbell (In re Campbell), 159 F.3d 963, 966‐67 (6th Cir. 1998)
(holding that because creditor’s forbearance from demanding immediate repayment of the debt
was based on the false statement, the entire amount was nondischargeable).
84 In re Greenidge, 75 B.R. at 247.
85 Id.
22
would have been available then but not later,” and the specific “pecuniary loss due to
the forbearance from collecting the debt . . . .”86
Appellant’s reliance on Greenidge, however, is inapposite. There, the Bankruptcy
Court held the creditor provided insufficient evidence “to prove that it forfeited any
remedies or otherwise relied to its detriment on the Debtor’s false financial statement in
refinancing the earlier debt . . . .”87 Here, in contrast, the Bankruptcy Court found that
once Appellant became delinquent on payments, Appellee forbore from collecting the
overdue amounts in reliance on Appellant’s false statement. This forbearance
constituted an extension of credit. Accordingly, the entire debt is nondischargeable.
Finally, Appellant argues Appellee failed to prove any damages because the debt
was uncollectible both before and after Appellant’s false statements. However, “[a]
creditor need not also show that he could have collected on the loan prior to the
bankruptcy but for the new extension of credit” to establish the debt is
nondischargeable.88 A debtor’s “incentive to act with integrity should not end once he
becomes insolvent,” and bankruptcy law should avoid “creat[ing] a perverse incentive
for insolvent debtors to lie to creditors to get them to forbear collection” of debts.89
86 [Doc. 9] at 25.
87 In re Greenidge, 75 B.R. at 247.
88 In re Campbell, 159 F.3d at 966‐67 (citing Shawmut Bank, N.A., v. Goodrich (In re Goodrich), 999
F.2d 22, 25‐26 (1st Cir. 1993)).
89 Id.
23
Consequently, Appellant’s insolvency does not preclude Appellee from establishing
that the entire debt is nondischargeable.
CONCLUSION
Having reviewed the applicable law and the arguments of the parties, the Court
agrees with the decision of the Bankruptcy Court. Accordingly, it is HEREBY
ORDERED that the decision of the Bankruptcy Court be AFFIRMED.
SO ORDERED, this 28th day of March, 2016.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
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