Alside, Inc. v. Creed (In re Creed)

92 B.R. 240, 1988 Bankr. LEXIS 1809
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedNovember 1, 1988
DocketBankruptcy No. B87-559; Adv. No. B88-252
StatusPublished
Cited by1 cases

This text of 92 B.R. 240 (Alside, Inc. v. Creed (In re Creed)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alside, Inc. v. Creed (In re Creed), 92 B.R. 240, 1988 Bankr. LEXIS 1809 (Ohio 1988).

Opinion

MEMORANDUM OF OPINION AND ORDER

RANDOLPH BAXTER, Bankruptcy Judge.

This matter came on for trial upon the Complaint of Alside, Inc. (Alside) seeking a determination of dischargeability of its judgment claim against Myles R. Creed (Defendant-Debtor). Upon an examination of the pleadings, argument of counsel and the evidence adduced, the following constitutes the Court’s findings and conclusions as required under Rule 7052 of the Bankruptcy Rules:

I.

This is a core proceeding under provisions of 28 U.S.C. 157(b)(2)(I), with jurisdiction further conferred under 28 U.S.C. 1334 and General Order No. 84 of this District. The Plaintiff, Alside, extended credit to the Debtor on or about August 10, 1984. (See, Ex. 1). Entitled “Credit application and Representations” and date-stamped “Aug. 15, 1984,” the Debtor provided the requested information, inclusive of business identity, location, references, and a financial statement. In furtherance of that application, Alside extended credit for the Debtor to make purchases for his business known as Home Services. In December of 1984, Alside terminated the Debtor’s credit and commenced an action in the State court to recover on its account. That matter was resolved by a consent judgment against the Debtor in an amount of $12,207.24, plus costs and interest at a rate of ten percent (10%), accruing as of January 10, 1985.1

On February 23,1987, the Debtor and his spouse filed their joint petition seeking an order of relief under Chapter 13. Subsequently, on February 12, 1988, their case [241]*241was converted for liquidation under Chapter 7. Among the debts scheduled by the Debtors on their Chapter 13 schedules was the debt owed to Alside in the disputed amount of $13,000.00, and designated as an obligation of the co-debtor, Myles Creed. Alside’s claim was filed in an amount of $18,000.00.2 To preclude a discharge of its claim, Alside instituted this adversary proceeding.

II.

Alleging that it extended credit to the Debtor as a result of fraudulent inducement, the Plaintiff seeks to enjoin a discharge of its claim pursuant to provisions of § 523(a)(2)(A) and (B) of the Code [11 U.S.C. 523(a)(2)(A) and (B)]. The disposi-tive issue for a resolution of this matter is whether the Plaintiffs reliance upon the Debtor’s representations was reasonable to warrant a denial of discharge. Alside’s Complaint, as amended, indicates that it extended credit to the Debtor based upon the Debtor’s knowing and willful misrepresentations regarding his business relationship with a third party and his trade relations with his trade references. Alside further contended that it relied on those representations, extended credit to the Debtor, and was damaged as a result of that reliance in an amount of $15,707.43, rendering such debt nondischargeable. In response thereto, the Debtor admitted owing Alside $13,000.00, admitted that one Tom Vespucci was incorrectly listed as his business partner, but specifically denied all other Complaint allegations, except for the jurisdictional provisions.

III.

Except as provided under § 523 of the Code, a discharge under § 727(b) discharges the debtor from all debts which arose prior to the date of the order for relief.3 The exceptions to discharge relevant to this matter are found under provisions of § 523(a)(2)(A) and (B). In pertinent part, it is noted that—

(a) A discharge under 727 ... of this title does not discharge an individual debtor from any debt—
... (2) for money, property, services, or an extension, renewal, or refinancing of credit, 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.
(B) Use of a statement in writing—
(i) that is materially false;
(ii) respecting the debtor’s or an insider’s financial condition;
(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive.... 11 U.S.C. 523(a)(2)(A) and (B).

A review of the testimony and other admitted evidence reveals the Debtor, Myles R. Creed, applied to the Plaintiff for an extension of credit on or about August 10, 1984. In furtherance of that effort, he filled out a credit application form and signed it. (See Ex. # 1; Debtor’s Cross-Exam. Testimony.) On the credit application, he listed his business name as being “Home Services — Tom’s Roofing,” with a business address of 4381 Hudson Drive, Stow, Ohio 44224. He also stated on the application that the form of his business entity was a partnership, with himself and one Tom Vespucci being the co-partners and principals. Upon cross-examination and inquiry of the Court, he admitted that the true name of his business was “Home Services,” and not “Home Services — Tom’s Roofing.” He further admitted that the form of his business entity was a sole [242]*242proprietorship and not a partnership, as indicated on the credit application form he filed with Alside. He further acknowledged that Tom Vespucci was his wife’s nephew and never had been his business partner (Debtor, Cross-Exam.). He further testified that Tom Vespucci was a business person who owned and operated Tom’s Roofing which was located at 4381 Hudson Drive in Stow, Ohio. On direct examination, he testified that his (Debtor’s) business was located at the Hudson Drive address at the time of his application and remained there for a period of six months.

The Debtor testified that the Plaintiff, Alside, extended credit to him following the submission of his credit application. (Debt- or, Cross-Exam.). His testimony further reveals that he had never dealt with Alside on a cash basis, and that he conducted business with Alside prior to August of 1983, but terminated his business dealings with Alside during late 1984. He stated that he knew what was meant by a partnership when he filled out Alside’s credit application (Debtor; Direct Exam.).

Upon Court inquiry, the Debtor testified that his former business was an unincorporated sole proprietorship wherein he discontinued business operations in late 1985. He further testified that he used Tom’s Roofing as part of his credit application with Alside to strengthen his application prospects, and the business addresses used on the application were his business’ addresses. His testimony also revealed that he listed Tom Vespucci’s name as his co-partner and principal on the credit application to assist him in obtaining the credit extension. He knew that those representations were false.

An examination of the Debtor’s petition and schedules was also made. Therein, it is noted that pre-conversion, he stated on his Chapter 13 Statement (Para.

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Cite This Page — Counsel Stack

Bluebook (online)
92 B.R. 240, 1988 Bankr. LEXIS 1809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alside-inc-v-creed-in-re-creed-ohnb-1988.