Alco Marine Agents, Inc., Pension Plan & Trust v. Weinberg (In re Weinberg)

81 B.R. 145, 1987 Bankr. LEXIS 2008, 16 Bankr. Ct. Dec. (CRR) 1251
CourtUnited States Bankruptcy Court, S.D. Florida.
DecidedDecember 28, 1987
DocketBankruptcy No. 87-00870-BKC-SMW; Adv. No. 87-0286-BKC-SMW-A
StatusPublished
Cited by1 cases

This text of 81 B.R. 145 (Alco Marine Agents, Inc., Pension Plan & Trust v. Weinberg (In re Weinberg)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Florida. primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alco Marine Agents, Inc., Pension Plan & Trust v. Weinberg (In re Weinberg), 81 B.R. 145, 1987 Bankr. LEXIS 2008, 16 Bankr. Ct. Dec. (CRR) 1251 (Fla. 1987).

Opinion

[146]*146FINDINGS OF FACTS AND CONCLUSIONS OF LAW

SIDNEY M. WEAVER, Bankruptcy Judge.

THIS CAUSE having come before the Court upon a complaint to Determine Dis-chargeability of a Debt owed by the debtor, pursuant to 11 U.S.C. § 523(a)(2)(A) and the Court, having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments of counsel and being otherwise fully advised in the premises does hereby make the following Findings of Fact and Conclusions of Law:

In February, 1981 Marian Jo Weinberg (the “debtor”) and Scott Gordon (“Gordon”), a third party, were approached by Robert Campbell (“Campbell”), who requested that the debtor and Gordon, take title to a vessel Campbell purportedly owned. Campbell wanted to temporarily place his boat in the debtor and Gordon’s names for tax purposes until April 20, 1981, at which time the title to the boat would be transferred back to Campbell and the debtor and Gordon would be compensated for their efforts. The debtor agreed to the transfer of title and together with Gordon and Campbell went to the Coast Guard Office in Miami where the transfer was finalized. The debtor did not review the vessel’s bill of sale to verify that Campbell held title but simply signed the papers at the request and direction of Campbell.

Subsequently, Campbell requested, and the debtor and Gordon agreed, to obtain a loan on the vessel. The debtor and Gordon consulted an attorney who advised them that the transfer of the boat’s title appeared proper and that they could transact the loan. For their protection, however, the attorney had the debtor and Gordon enter into an Indemnification Agreement with Campbell to hold them harmless against any claims arising from the transaction.

The negotiations for the loan occurred between Campbell, Russell P. McCain (the “creditor”), substituted as party plaintiff for Aleo Marine Agents by order of this Court, and the creditor’s attorney, with the debtor and Gordon being informally consulted about the collateral and other miscellaneous matters. The creditor had experienced prior dealings with Campbell where Campbell attempted to sell him stolen items. According to the creditor’s testimony, he was also aware that the loan money would go directly to Campbell, and that Campbell was a guarantor on a $20,000.00 promissory note executed in connection with the loan.

Upon the advise of Campbell, the debtor and Gordon listed the boat’s location as the debtor’s address on the loan documents at the time they executed the note. Subsequently, as agreed among the parties, the debtor received from the creditor a check for $8,500.00 and $11,000.00 in cash. Campbell was immediately given part of the money and the rest was placed in a restricted bank account in the names of the debtor and Gordon. The money was to be held in this account by the debtor and Gordon until their names were removed from both the note and the vessel’s title.

In March, 1981 the debtor’s attorney received papers purporting to transfer title of the boat back to Campbell and a new promissory note substituting Campbell as the sole obligor. Thereafter, the debtor’s attorney advised the debtor and Gordon that their names had been removed from the promissory note and that they could release the balance of the money to Campbell. On this advice, the debtor and Gordon released the remaining $10,000.00 to Campbell. The debtor, believing that she had been discharged of the debt, did not keep track of the boat’s whereabouts or the loan proceeds. The creditor did not notify the debtor of the loan’s maturity on August 13, 1981, nor did the creditor attempt to seize the vessel while it was docked in Miami. However, in January, 1983 the creditor instituted a suit in a Florida state court against the debtor to obtain payment of the loan. Realizing that something had gone wrong with respect to the collateral, the debtor returned to the Coast Guard office to discover that she was still listed as the vessel’s owner. Upon learning this, the debtor began searching for the vessel and [147]*147found it in Virginia where she instituted a lawsuit to regain possession. However, apparently Campbell had given the debtor a fraudulent bill of sale and therefore a Virginia federal court determined that the debtor’s title was a forgery and would not release the vessel.

Subsequently, a judgment was entered in the Florida state court in favor of the creditor. The state court judgment found that the debtor and Gordon were liable on the $20,000.00 promissory note that secured the personal loan extended by the creditor, however, no determination was made by the jury as to the issue of fraud. The creditor brings this action pursuant to 11 U.S.C. § 523(a)(2)(A) seeking to exempt from discharge the state court judgment due to the debtor’s misrepresentations or actual fraud.

Under 11 U.S.C. § 523(a)(2)(A) a debt will be excepted from discharge when a debtor makes a false representation when incurring a debt. In determining whether a particular debt is excepted from discharge, 11 U.S.C. § 523 should be strictly construed against the objecting creditor, and the burden is on the creditor to prove the exception. Hunter v. Schweig (In Re Hunter) 780 F.2d 1577 (11th Cir.1986). The bankruptcy court is not bound by a state court’s findings when determining the dischargeability of a debt under 11 U.S.C. § 523. Brown v. Felson, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). This Court, therefore, must determine whether the state court judgment is nondis-chargeable under 11 U.S.C. § 523.

11 U.S.C. § 523(a)(2)(A) states:

(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt-(2) for money, ..., to the extent obtained by—
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.

To bar a discharge of a debt for a false representation or fraud the creditor must show the following: that the debtor made a false representation with the purpose and intention of deceiving the creditor; the creditor relied on such representation; his reliance was reasonably founded; and the creditor sustained a loss as a result of the representation. Hunter, 780 F.2d at 1579; In re Mangel, 72 B.R. 516, 522 (Bankr.S.D.Fla.1987); In the Matter of Carpenter, 53 B.R. 724, 729 (Bankr.N.D.Ga.1985).

11 U.S.C. § 523

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Bluebook (online)
81 B.R. 145, 1987 Bankr. LEXIS 2008, 16 Bankr. Ct. Dec. (CRR) 1251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alco-marine-agents-inc-pension-plan-trust-v-weinberg-in-re-weinberg-flsb-1987.