BBI Architectural Services v. Janney (In re Janney)

557 B.R. 476
CourtUnited States Bankruptcy Court, M.D. Louisiana
DecidedSeptember 13, 2016
DocketCASE NO. 14-11278; ADV. NO. 15-1027
StatusPublished
Cited by1 cases

This text of 557 B.R. 476 (BBI Architectural Services v. Janney (In re Janney)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BBI Architectural Services v. Janney (In re Janney), 557 B.R. 476 (La. 2016).

Opinion

MEMORANDUM OPINION

DOUGLAS D. DODD, UNITED STATES BANKRUPTCY JUDGE

Plaintiff BBI Architectural Services (“BBI”) sued Todd T. Janney, Sr. (“Jan-ney”) to have Janney’s debt to it declared nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) and (B). This opinion explains why Janney’s debt to BBI is nondis-chargeable pursuant to Bankruptcy Code § 523(a)(2)(A).

Facts

BBI sued two companies Janney owned, Physician’s Choice Physical Therapy, Inc. (“PCPT”) and Physician’s Choice Physical Therapy of Livingston Parish, Inc. (“PCPTLP”), for unpaid pre-petition architectural services.1 The defendants settled with BBI for $22,500, payable in installments. ' Janney signed the settlement agreement and the October 23, 2013 promissory note both on his behalf and also as president of his closely held corporations. BBI did not know when the agreement was signed that neither Janney company remained in business: PCPTLP had shut its doors in 2010 and PCPT had ceased operations by May of 2012 according to Janney’s bankruptcy schedules, though in testimony Janney stated it had likely closed prior to that date.2

In accordance with the settlement, the parties to the litigation joined in a November 21, 2013 consent judgment that cast Janney himself in judgment to BBI in solido with PCPT and PCPTLP, though Janney was not a party to the lawsuit for reasons not made plain in the record. BBI later agreed to amend the judgment and remove Janney as a judgment debtor.3 PCPT, which had been closed for at least sixteen months, made the only two payments on the settlement and neither PCPT nor PCPTLP made any payments after [479]*479the consent judgment was amended.4

Janney and his wife filed chapter 7 on October 8, 2014. BBI timely sued to have Janney’s debt to it declared nondischargeable under 11 U.S.C. § 523(a)(2)(A) and (B). The court consolidated this adversary proceeding for trial with the claims in Rebecca Adams, LLC v. Todd T. Janney, Sr. (Adv. No. 15-1026).

I. False Representation and Actual Fraud pursuant to § 523(a)(2)(A)

BBI’s lawsuit centers on Janney’s actions negotiating a settlement and consent judgment. BBI claims that Janney misled it into settling with PCPT and PCPTLP when neither company remained in business. This, it contends, renders Janney’s debt to it nondischargeable under Bankruptcy Code § 523(a)(2)(A). That provision excepts from discharge debts obtained by “false pretenses, false representation, or actual fraud....”

The Fifth Circuit has developed two separate tests for dischargeability claims under § 523(a)(2)(A), predicated on which element of the statute the plaintiff is basing its claim. “When defining the elements of nondischargeability, the Fifth Circuit has distinguished between actual fraud on one hand and false pretenses and false representations on the other.” In re Quinlivan, 347 B.R. 811, 820 (Bankr.E.D.La.2006), aff'd, 2007 WL 1970980 (ED.La. June 29, 2007).

BBI argues that the debt is nondis-chargeable under section 523(a)(2)(A) both as having arisen through the debtor’s actual fraud but also as a result of his false representation. It contends that Janney committed both actual fraud and a false representation when he signed the promissory note and settlement agreement obligating companies he knew were not operating to pay a $22,500 debt.

A Janney Committed a False Representation When He Induced BBI to Settle with Two Non-Operating Businesses

BBI alleges that Janney’s conduct fell within the scope of Bankruptcy Code § 523(a)(2)(A) as a series of false representations that PCPT and PCPTLP were operational. In other words, it contends that Janney misled BBI by defending its lawsuit and negotiating a settlement on behalf of his defunct businesses.

A debtor’s false representation or false pretense falls within § 523(a)(2)(A) if it was “(1) [a] knowing and fraudulent falsehood ..., (2) describing past or current facts, (3) that [was] relied upon by the other party.” RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1292-93 (5th Cir.1995) (citing In re Allison, 960 F.2d 481, 484-85 (5th Cir.1992); In re Bercier, 934 F.2d 689, 692 (5th Cir.1991)). “Bankruptcy courts have overwhelmingly held that a debtor’s silence regarding a material fact can constitute. a false representation actionable under Section 523(a)(2)(A).” In re Selenberg, No. 14-10382, 2015 WL 5579697 at *2 (Bankr.E.D.La. Sept. 21, 2015), aff'd, 2016 WL 3034165 (E.D.La. May 27, 2016). See also In re Acosta, 2003 WL 23109775 at *14 (E.D.La. Dec. 30, 2003), aff'd, 406 F.3d 367 (5th Cir.2005), citing Wolstein v. Do-teroff (In re Docteroff), 133 F.3d 210, 216 (3d Cir.1997); In re Wyant, 236 B.R. 684, 695 (Bankr.D.Minn.1999).

The evidence established that Jan-ney knew that PCPT and PCPTLP were no longer in business when he signed the settlement agreement and promissory note [480]*480with BBI in Fall 20135 and that they were unable to honor their obligation to BBI when the parties settled. That evidence satisfies the first and second elements of the RecoverEdge test.

The credible evidence also supported a finding that Janney did not disclose his businesses’ status to BBI. Janney insisted at trial that he had disclosed to BBI in the course of state court proceedings that his two companies were no longer doing business and so cannot fairly be accused of misleading BBI. The defendant’s uncorroborated testimony on this point is not worthy of credibility,6 particularly in light of his insistence that he did not know he was personally liable on the promissory note despite being an experienced businessman, represented by counsel during the settlement process.

The last element of the test for nondis-chargeability under § 523(a)(2)(A) is whether the creditor justifiably relied on the debtor’s misrepresentation.7 The evidence established that BBI had no reason to suspect when it settled its lawsuit that PCPT and PCPTLP were not operating and could not honor their undertakings in the settlement.8 Thus PCPT and PCPTLP appeared to be going concerns, as far as BBI had any reason to believe.

No evidence was offered supporting a finding that BBI had any reason to suspect that PCPT and PCPTLP were not going concerns when it settled with Janney and his businesses and later when it agreed to release Janney from the consent judgment.9

In summary, BBI has established that Todd Janney’s debt to it is nondischargeable as a misrepresentation under § 523(a)(2)(A).

B. Janney Committed Actual Fraud When He Obligated Entities to a Judgment He Knew They Could Not Pay

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Smith v. Johnson-Battle (In re Johnson-Battle)
599 B.R. 769 (D. New Jersey, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
557 B.R. 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bbi-architectural-services-v-janney-in-re-janney-lamb-2016.