Bank of Western Oklahoma v. Cantrell (In re Cantrell)

208 B.R. 498, 1997 Bankr. LEXIS 697
CourtBankruptcy Appellate Panel of the Tenth Circuit
DecidedMay 23, 1997
DocketBAP No. WO-96-47; Bankruptcy No. 95-15151-BH; Adv. No. 95-1342
StatusPublished
Cited by2 cases

This text of 208 B.R. 498 (Bank of Western Oklahoma v. Cantrell (In re Cantrell)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of Western Oklahoma v. Cantrell (In re Cantrell), 208 B.R. 498, 1997 Bankr. LEXIS 697 (bap10 1997).

Opinion

OPINION

JAMES A. PUSATERI, Chief Judge.

Debtor C. Glenn Cantrell appeals a bankruptcy court decision, entered after a bench trial, concluding that his debt to the Bank of Western Oklahoma (“BOWO”) is nondisehargeable pursuant to 11 U.S.C. § 528(a)(6). Mr. Cantrell asks us to determine whether the bankruptcy court erred in: (1) finding his debt was for “willful and malicious injury” to BOWO’s property; (2) finding the debt was for “willful and malicious injury” even though BOWO’s officers had to know what he was doing and implicitly consented to his actions; and (3) declining to enter a judgment specifying the amount of his nondischargeable debt. For the reasons stated below, we affirm the bankruptcy court’s decision.1

I. Background

Debtor C. Glenn Cantrell (“Cantrell”) ran a large cow-calf operation, making most of his income from selling calves produced each year by his breeding cattle. The First National Bank of Chieksha (“FNB”) had a first lien on his cattle herd. In 1992, he began borrowing money from BOWO as well. By December 1993, he owed BOWO $593,750 on a cattle loan, and had a $175,000 operating loan or line of credit; both loans were secured by his cattle herd and certain real estate. Cantrell was to pay off FNB’s loan with part of BOWO’s cattle loan, but paid an unsecured debt instead, leaving BOWO holding a second lien on his cattle.

Consistent with industry standards, Cantrell's agreement with BOWO provided that he was to give BOWO the proceeds when he sold its collateral, and to arrange for buyers to pay him with checks made payable to him and BOWO. This way, he could spend the proceeds only with BOWO’s permission. Once, when he told BOWO he had paid it with a loan from a third party, BOWO allowed him to use some sale proceeds to repay that party. This was the only time BOWO gave him permission to use sale proceeds to pay someone besides the bank.

Cantrell sought to renew and expand the operating loan for 1995. BOWO renewed the loan but declined to increase its $175,000 limit. Apparently, this left only about $5,000 of credit available on the loan. BOWO’s chief financial and operating officers were cattlemen with substantial knowledge of the cattle business. They were, of course, aware that Cantrell could only obtain about $5,000 for his 1995 operations under the operating loan. However, Cantrell has directed us to no evidence in the record which demonstrates these officers (or any other BOWO employees) knew that except for his adult cattle, Cantrell then had no calves or assets he could sell, or other source he could tap, to obtain the money he might need to continue his business.

During 1994 and 1995, Cantrell sold many of his breeding cattle. He used some of the proceeds to repay the third party as noted above and deposited some with BOWO. He made another sale to another third party which led to a dispute that BOWO settled, obtaining some money for the cattle, though not as much as Cantrell claimed it should have. Finally, he also received $272,274.42 in sale proceeds which he spent without BOWO’s permission and without paying down FNB’s competing loan. BOWO based its dischargeability complaint on Cantrell’s unauthorized disposition of this money. After Cantrell filed for bankruptcy, BOWO liquidated its remaining collateral, leaving it with a claim for $144,794.26.

At trial, BOWO relied solely on § 523(a)(6), which excepts from discharge a debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” The bankruptcy court ruled orally at the end of the trial. It quickly [501]*501disposed of the willfulness requirement, saying,

[T]he act being claimed [sic] of here is the sale of the cattle without remittance of the proceeds to the plaintiff bank. There’s no question that that was a willful act of Mr. Cantrell, because he knew ... he was selling the cattle, and he knew he wasn’t paying the plaintiff. In virtually all of these eases, the willfulness part of its pretty much goes without saying, because you don’t ... sell cattle unknowingly.

The court then discussed the maliciousness requirement at some length, initially noting that it felt the word “malice,” as shown by various dictionary definitions, indicated an act that was done with ill will or was morally wrong. The court said, “I’m unable to find that [Cantrell] had any desire to injure the plaintiff bank, that he had any active ill will against it, or any hatred of it. He just sold the cattle and did something with the money other than to remit it to the bank.” Ultimately, however, the court turned to Tenth Circuit decisions which have discussed the meaning of “malicious” in § 523(a)(6). Interspersing quotations from C.I.T. Fin. Servs. v. Posta (In re Posta), 866 F.2d 364 (10th Cir. 1989), with its comments about applying the decision to the ease at hand, the court said:

“Malicious intent is demonstrated by evidence that the debtor had knowledge of the creditor’s rights,” which he did — he knew these cattle were pledged — “and that with that knowledge proceeded to take action in violation of those rights.”
Well, he had the knowledge that the bank had a security interest, and with that knowledge proceeded to sell the cattle without consent and without paying the money to the bank. The Court goes on:
“Such knowledge can be inferred from the debtor’s experience in the business”— he was well experienced — “his concealment of the sale” — he did conceal the sale — “or by his admission that he has read and understood the security agreement.”
There’s no question but that he knew the security agreement said the cattle were pledged.

The court also discussed and quoted from Dorr, Bentley & Pecha v. Pasek (In re Pasek), 983 F.2d 1524 (10th Cir.1993), saying the decision was the last Tenth Circuit ruling on the issue of which it was aware. The court concluded Pasek clearly declared that Posta was still the Circuit’s rule about the meaning of “malicious.”

After the court concluded the debt was nondischargeable, Cantrell’s counsel asked about the amount of the debt. The court said, “I don’t think that’s the function of the bankruptcy court to determine that,” and indicated the amount could be determined in a foreclosure proceeding that was apparently pending in state court.

II. Standard of Review

In reviewing an order of the bankruptcy court, an appellate court “reviews the factual determinations of the bankruptcy court under the clearly erroneous standard, and reviews the bankruptcy court’s construction of [a statute] de novo.” Taylor v. I.R.S. 69 F.3d 411, 415 (10th Cir.1995) (citations omitted).

A finding of fact is clearly erroneous only if the court has “the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364

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Bluebook (online)
208 B.R. 498, 1997 Bankr. LEXIS 697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-western-oklahoma-v-cantrell-in-re-cantrell-bap10-1997.