Bank of Henderson v. O'Nan (In re O'Nan)

463 B.R. 439
CourtUnited States Bankruptcy Court, W.D. Kentucky
DecidedJanuary 24, 2012
DocketBankruptcy No. 11-40061; Adversary No. 11-4019
StatusPublished

This text of 463 B.R. 439 (Bank of Henderson v. O'Nan (In re O'Nan)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of Henderson v. O'Nan (In re O'Nan), 463 B.R. 439 (Ky. 2012).

Opinion

MEMORANDUM OPINION

ALAN C. STOUT, Bankruptcy Judge.

This matter came before the Court for trial on January 10, 2012. Both the Defendant, Norman S. O’Nan (“O’Nan”) and the Plaintiff, Bank of Henderson (the “Bank”) appeared with counsel. The parties presented testimony and exhibits for the Court to consider. The Court enters the following Findings of Fact and Conclusions of Law pursuant to Fed. R. Bank. P. 7052.

FINDINGS OF FACT

At some point in time prior to 2008, O’Nan purchased a business enterprise being operated at the time in Henderson, Kentucky from a Mr. Anthony Dunn. The business was known as Shelby Tire & Wheel of Henderson (“Shelby Tire & Wheel”). The purchase included various tools and equipment that were located at the premises in Henderson, Kentucky. For whatever reason, O’Nan and Mr. Dunn never memorialized the agreement. Due to eventual failure of the business, O’Nan never completed making payments to Mr. Dunn for the purchase of the property.

In March 2008, O’Nan opened an account with the Bank in the name of Shelby Tire & Wheel of Henderson, LLC. Although the business name included the term “LLC,” the business entity was never incorporated either as a corporation or a limited liability company. The account was funded with a draw on a line of credit from the Bank in the amount of $14,700.00. John Phillips, a Senior Vice President at the Bank, characterized this account as a demand note. O’Nan and the Bank renewed this debt in 2009 and 2010.

As of July 31, 2009, the business bank account had a balance of $4.04 with a debt to the Bank in the amount of $14,191.29 plus interest. The balance on the account with the Bank did not change for the remainder of 2009, with O’Nan maintaining a $4.04 balance. On February 25, 2010, after O’Nan failed to make several monthly payments, Mr. Phillips visited O’Nan and requested that O’Nan execute several loan documents, including a Promissory Note and Commercial Guaranty Agreement. (Bank’s Exh. 1-4). The Promissory Note was for the sum of $11,722.01. Pursuant to the debt instruments, the Bank was given a security interest in “collateral,” defined to include, but not be limited to:

All inventory, equipment, accounts (including but not limited to all health-care-insurance receivables), chattel paper, instruments (including but not limited to all promissory notes), letter-of-credit rights, letters of credit, documents, deposit accounts, investment property, money, other rights to payment and performance, and general intangibles (including but not limited to all software and all payment intangibles); all oil, gas and other minerals before extraction; all oil, gas, other minerals and accounts constituting as extracted collateral; all fixtures; all timber to be cut; all attachments, accessions, accessories, fittings, increases, tools, parts, repairs, supplies, and commingled goods relating to the foregoing property, and all additions, replacements of and substitutions for all or any part of the foregoing property; all insurance refunds relating to the foregoing property; all good will relating to the foregoing property; all records and data and embedded software relating to the foregoing property, and all equipment, inventory and software to utilize, create, maintain and process any such records and data on electronic media; [442]*442and all supporting obligations relating to the foregoing property; all whether now existing or hereafter arising, whether now owned or hereafter acquired or whether now or hereafter subject to any rights in the foregoing property; and all products and proceeds (including but not limited to all insurance payments) of or relating to the foregoing property

(Bank’s Exh. 3). No collateral is specifically mentioned or otherwise described in the documents. While Mr. Phillips testified that O’Nan represented to him at that time that he owned all the assets of Shelby Tire & Wheel, the Debtor disputed this testimony. O’Nan testified that he never told Mr. Phillips he owned the property, just like he never told Mr. Owens, the Bank officer he dealt with when he opened the account in 2008, that he did not own the collateral. O’Nan testified that he told Mr. Phillips that Mr. Dunn, the previous owner/operator of Shelby Tire & Wheel still owned the property in question. No evidence was presented that the Bank ever inspected the property or took any other actions to verify that the O’Nan owned any of the property associated with Shelby Tire & Wheel.1

The Bank did not advance any new funds upon the execution of these documents in 2010, but did agree to remove O’Nan’s wife as a guarantor on the original 2008 debt.2 The bank statement issued on February 26, 2010 does not show a deposit to the account for any new funds and in fact reflects an account balance of the same $4.04.

The business did not improve and O’Nan closed the business on May 10, 2010. At that time, he simply removed himself, along with a computer, from the premises. All the remaining equipment, tools, and inventory were left at the business premises, which O’Nan claimed was required by the terms of the Commercial Security Agreement. (Bank’s Exh. 3). O’Nan never informed the Bank he was shutting down the business. After the close of Shelby Tire & Wheel, the Bank tried to repossess the assets of the business, but was told that the property belonged to someone other than O’Nan. Even though O’Nan offered to surrender the computer, the one asset he owned outright, the Bank did not collect any funds or property through its repossession efforts.

On January 18, 2011, O’Nan filed a voluntary petition for bankruptcy relief under Chapter 7 of Title 11 of the Bankruptcy Code. On April 29, 2011, the Bank commenced this adversary proceeding against O’Nan seeking to except the loan balance from discharge pursuant to 11 U.S.C. § 523(a)(2) and (a)(6). The Bank contends that when O’Nan executed the documents in 2010, he pledged all the property of Shelby Tire & Wheel of Henderson, when in fact he owned none of the collateral pledged.

CONCLUSIONS OF LAW

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This adversary proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(I) and venue is proper under 28 U.S.C. § 1409(a). The parties have submitted to the jurisdiction of this Court.

Section 523 provides in pertinent part:

[443]*443(a) A discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) 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.

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Bluebook (online)
463 B.R. 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-henderson-v-onan-in-re-onan-kywb-2012.