American Express Travel Related Services Co. v. Lorenzato (In re Lorenzato)

147 B.R. 346, 1992 Bankr. LEXIS 1857
CourtDistrict Court, S.D. New York
DecidedNovember 23, 1992
DocketBankruptcy No. 91 B 21691; No. 92 B 5032
StatusPublished

This text of 147 B.R. 346 (American Express Travel Related Services Co. v. Lorenzato (In re Lorenzato)) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Express Travel Related Services Co. v. Lorenzato (In re Lorenzato), 147 B.R. 346, 1992 Bankr. LEXIS 1857 (S.D.N.Y. 1992).

Opinion

HOWARD SCHWARTZBERG, Bankruptcy Judge.

Plaintiff, American express Travel Related Services Co., Inc. (“American Express”), seeks to deny the debtors’ discharge in bankruptcy pursuant to 11 U.S.C. § 727(a)(2)(A), involving a fraudulent concealment of assets subsection (a)(4)(a), relating to a false oath, and subsection (a)(5), concerning a failure to explain satisfactorily a loss or deficiency of assets. Additionally, American Express seeks a determination of nondischargeability pursuant to 11 U.S.C. § 523(a)(2)(A), based on the debtors’ allegedly obtaining property from American Express by false representations or fraudulent conduct.

FINDINGS OF FACT

1. The debtors, Mario Lorenzato and Lucy Lorenzato, are husband and wife who jointly filed with this court a voluntary petition for relief under Chapter 7 of the Bankruptcy Code on October 30, 1991, which constituted an order for relief pursuant to 11 U.S.C. § 301.

2. The plaintiff, American Express, is engaged in the business of issuing credit cards to approved members and providing credit services for its cardholders.

[347]*3473. In September of 1982, the defendant, Mario D. Lorenzato, applied for and obtained for himself and his wife, Lucy Lor-enzato, an American Express card and a supplemental American Express card for his wife.

4. In December of 1990 and January of 1991, eight jewelry items were ordered by telephone from the American Express Catalog collection and charged to the debtors’ American Express Card. To verify the purchase, the American Express representative asked for and obtained debtor Lucy Lorenzato’s social security number in addition to her American Express Card number. Four of the deliveries were to be made to Lucy Lorenzato’s residence at Laurel Road in Pound Ridge, New York, and four of the deliveries were to be made to Lucy Lorenzato at her daughter’s residence at Salem Road, Pound Ridge, New York. A detailed description of each of the jewelry shipments is as follows:

1. December 18, 1990 — 5 carat diamond ring, Shipped December 12, 1990 to Laurel Road. 5,995.00
2. December 20, 1990 — 1 carat diamond/gold bracelet Shipped December 21, 1990 to Salem Road. 1,995.00
3. December 20, 1990 — 1 carat diamond/gold bracelet Shipped December 21, 1990 to Salem Road. 1,995.00
4. December 20, 1990 — 1 carat diamond/gold bracelet Shipped December 21, 1990 to Salem Road. 1,995.00
5. December 20, 1990 — 1 carat diamond/gold bracelet Shipped December 21, 1990 to Salem Road. 1,995.00
6. January 17, 1991 — 10 carat tennis bracelet Shipped January 21, 1991 to Laurel Road. 12,000.00
7. January 17, 1991 — 5 carat diamond ring Shipped January 21, 1991 to Laurel Road. 5,995.00
8. January 21, 1991 — 10 carat Tennis Bracelet, Shipped January 22, 1991 to Laurel Road. 12,000.00
Total Purchases.$43,970.00

5. All the jewelry shipments were delivered either by United Parcel or Federal Express. The representatives from these shippers testified that they were requested by American Express to trace these deliveries which they did. The United Parcel representative produced proof of the deliveries to the debtor’s residence at Laurel Road. One of the delivery receipts was signed by the debtors’ son-in-law, Anthony Marino. The Federal Express driver testified that he knew Lucy Lorenzato from previous deliveries and that the receipt for the 10 carat tennis bracelet was signed by Lucy Lorenzato at her Laurel Road residence. He also testified that the receipt for the delivery of a 1 carat diamond/gold bracelet was signed at the Salem Road address by G. Marino. The Lorenzato’s daughter’s name is Gina Marino.

6. Lucy Lorenzato testified that she never ordered the jewelry and never received delivery, either at her residence on Laurel Road or at her daughter’s residence on Salem Road. She testified that she recalls that her husband, Mario Lorenzato, once telephoned American Express for the purpose of disclaiming liability for the jewelry purchases. Mario Lorenzato did not testify.

7. There was no evidence that the debtors ever submitted a written objection to any of the monthly statements of account issued by American Express nor did the debtors show that they ever corresponded with American Express to decline responsibility for the jewelry purchases.

8. The monthly statements of account from American Express between August 23, 1990 and May 25, 1991, which were mailed to the debtors, reflect substantial purchases by the debtors with the use of their American Express card, totalling $102,524.53, inclusive of charges and inter[348]*348est. The purchases include items for clothing, jewelry, perfume, fine china and automobile accessories. During this period three checks, each in the sum of $24,508.00 were returned for nonpayment.

9. The debtors’ Statement of Financial Affairs, which they filed with this court, reflect that they earned no income in 1990 and 1991 and that their income from other services totalled $864.00 per year. The $864.00 item represented an annual pension.

10. In Schedule B-2, Personal Property, they listed a value of $1,500.00 for wearing apparel, jewelry, firearms, sports equipment and other personal possessions.

11. The debtors did not list the jewelry purchases from American Express in December 1990 and January, 1991, totalling $43,970.00, nor did they give a satisfactory explanation as to what happened to the jewelry. Lucy Lorenzato simply denied that she purchased the eight jewelry items from American Express or that she ever received the jewelry shipments which the United Parcel and Federal Express representatives testified were delivered to the debtors’ residence on Laurel Road and to the Salem Road residence of their daughter, Gina Marino.

12. Lucy Lorenzato’s bald denial as to the purchase or receipt of the jewelry in question is not a satisfactory explanation because she did not speak for her husband, Mario, or her daughter, Gina, or her son-in-law, Anthony. A complete explanation would at least require that Mario, Gina and Anthony should also deny that they received or possess the jewelry in question. Hence, a mere denial by Lucy Lorenzato is incomplete and insufficient in the face of the testimony and written proof introduced by American Express.

DISCUSSION

It boggles the mind that American Express would allow these credit card holders to run up an open credit account to $102,-524.53, including the purchase of jewelry items for $43,970.00, during the year immediately preceding their Chapter 7 petition, at a time when they admittedly received no income for two years, other than an annual pension of $864.00 per year. These circumstances are even more incredible in light of the fact that the monthly account statements issued by American Express reflect that during this period three payment checks, each in the sum of $24,508.00, were rejected and returned by the drawee bank.

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147 B.R. 346, 1992 Bankr. LEXIS 1857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-express-travel-related-services-co-v-lorenzato-in-re-lorenzato-nysd-1992.