Bank of Nebraska v. Rose (In re Rose)

483 B.R. 540
CourtUnited States Bankruptcy Appellate Panel for the Eighth Circuit
DecidedDecember 20, 2012
DocketBAP No. 12-6046
StatusPublished
Cited by13 cases

This text of 483 B.R. 540 (Bank of Nebraska v. Rose (In re Rose)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of Nebraska v. Rose (In re Rose), 483 B.R. 540 (bap8 2012).

Opinion

NAIL, Bankruptcy Judge.

Mark M. Rose (“Debtor”) appeals the June 11, 2012 judgment of the bankruptcy court1 determining the debt he owed to Bank of Nebraska (“Bank”) was excepted from discharge under 11 U.S.C. § 523(a)(2)(B) and denying any recovery on Debtor’s counterclaim. We affirm.

BACKGROUND

Over a three-year period beginning in 2003, Debtor borrowed money from Bank and pledged various items as collateral. Debtor ultimately defaulted on the loans. After Bank sold the collateral and applied the proceeds to the indebtedness, a deficiency of more than $300,000.00 remained.

[543]*543Debtor filed a petition for relief under chapter 7 of the bankruptcy code on September 11, 2005. Bank timely filed a complaint to determine the dischargeability of its claim under 11 U.S.C. § 523(a)(2)(B), and Debtor timely filed an answer. Debt- or later amended his answer to add a nine-count counterclaim.

In his counterclaim, Debtor alleged Bank breached several of its duties under Nebraska law and converted a lengthy list of Debtor’s assets (“the state law counterclaims”). Debtor asked the bankruptcy court to void Bank’s security interest and award him damages for Bank’s alleged wrongdoing. On Debtor’s motion, Thomas D. Stalnaker, the chapter 7 trustee, was subsequently joined as a defendant and counterclaimant.

The matter was tried, and following its receipt of post-trial briefs from Bank and Debtor, the bankruptcy court entered a memorandum order and a judgment excepting Bank’s claim from discharge under 11 U.S.C. § 523(a)(2)(B) and denying Debtor any recovery on the state law counterclaims. Debtor timely filed a notice of appeal.

STANDARD OF REVIEW

Debtor’s appeal involves issues of both fact and law. We review the bankruptcy court’s findings of fact for clear error and its legal conclusions de novo. Islamov v. Ungar (In re Ungar), 633 F.3d 675, 678-79 (8th Cir.2011).

DISCUSSION

Debtor raises seven issues on appeal: (1) whether the bankruptcy court erred by using a subjective justifiable reliance standard rather than an objective reasonable reliance legal standard in determining whether Bank reasonably relied on Debt- or’s financial statements and borrowing base certificates in granting Debtor an extension, renewal, or refinancing of credit; (2) whether the bankruptcy court erred in finding Bank reasonably relied on Debt- or’s financial statements and borrowing base certificates; (3) whether the bankruptcy court erred in finding Debtor published his financial statements and borrowing base certificates with the intent to deceive Bank; (4) whether the bankruptcy court erred in finding Bank acted in a commercially reasonable manner in its handling, inventorying, and disposing of Debtor’s coins and inventory; (5) whether the bankruptcy court erred in finding Debtor’s coins had a maximum value of $35,000 in the summer of 2005 and further finding Debtor’s opinion of the value of his coins was overstated; (6) whether the bankruptcy court erred in finding Debtor testified when he bid a job, he treated the bid as an account receivable, even if he did not actually get the job, and when a customer paid all or part of the price in advance, Debtor did not necessarily credit the pre-payment against the account receivable, and further finding Debtor created mythical accounts receivable; and (7) whether the bankruptcy court had jurisdiction to enter a final judgment on Debtor’s state law counterclaims.

With respect to the first issue, Debtor argues the bankruptcy court applied a “subjective justifiable reliance” standard in determining whether Bank reasonably relied on Debtor’s written statements. We disagree. The bankruptcy court did not refer to “justifiable reliance” anywhere in its memorandum order. Instead, citing Jacobus v. Binns (In re Binns), 328 B.R. 126, 130 (8th Cir. BAP 2005), and Northland Nat’l Bank v. Lindsey (In re Lindsey), 443 B.R. 808, 813 (8th Cir. BAP 2011), the bankruptcy court stated — correctly—“[t]o except a debt from discharge under 11 U.S.C. § 523(a)(2)(B), a creditor must prove, by a preponderance [544]*544of the evidence, that the debtor obtained money by (1) use of a statement in writing that was materially false; (2) that pertained to his or his business’s financial condition; (3) on which the plaintiff reasonably relied; and (4) that the debtor made with the intent to deceive the plaintiff.” (Emphasis added). Citing First Nat’l Bank of Olathe v. Pontow (In re Pontow), 111 F.3d 604, 610 (8th Cir.1997), the bankruptcy court further stated— again correctly — “[reasonable reliance is determined by looking at the totality of the circumstances.” (Emphasis added). We are therefore satisfied the bankruptcy court applied the correct legal standard in determining whether Bank reasonably relied on Debtor’s written statements.

With respect to the next five issues, which call into question many of the bankruptcy court’s findings of fact, the record before us does not permit our consideration of Debtor’s arguments. “Within 14 days after filing the notice of appeal ... the appellant shall file with the clerk and serve on the appellee a designation of the items to be included in the record on appeal[.]” Fed.R.Bankr.P. 8006. Debtor did not file or serve such a designation. The record before us therefore comprises only the bankruptcy court’s memorandum order and judgment and Debtor’s notice of appeal. Id. Significantly, that record does not include an official transcript of the three-day trial before the bankruptcy court.2 As we are thus unable to review the evidence presented to the bankruptcy court, we cannot conclude the bankruptcy court’s findings of fact are clearly erroneous. Marino v. Seeley (In re Marino), 437 B.R. 676, 679 (8th Cir. BAP 2010) (citation therein).

Finally, with respect to the remaining issue, Debtor argues under Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), the bankruptcy court lacked jurisdiction to enter a final judgment on the state law counterclaims. While we do not agree the issue is one of jurisdiction, we acknowledge a bankruptcy court “lack[s] the constitutional authority to enter a final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor’s proof of claim.” Stern, 131 S.Ct. at 2620 (emphasis added). In this case, however, Debtor not only consented to the bankruptcy court’s entering a final judgment on the state law counterclaims, he lacks standing to pursue an appeal from the bankruptcy court’s final judgment on those counterclaims.

A bankruptcy court may enter a final judgment in a non-core, related proceeding, if the parties consent. 28 U.S.C. § 157

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Bluebook (online)
483 B.R. 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-nebraska-v-rose-in-re-rose-bap8-2012.