Bryant v. Clements (In re Clements)

570 B.R. 803, 2017 Bankr. LEXIS 2102
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedJuly 27, 2017
DocketCase Number: 16-13848-7; Adversary Number: 17-12
StatusPublished
Cited by5 cases

This text of 570 B.R. 803 (Bryant v. Clements (In re Clements)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryant v. Clements (In re Clements), 570 B.R. 803, 2017 Bankr. LEXIS 2102 (Wis. 2017).

Opinion

MEMORANDUM DECISION

Hon. Catherine J. Furay, U.S. Bankruptcy Judge

This decision addresses the question of whether the debt of the Debtors/Defendants, Paul L. Clements and Tina M. Clements (“Defendants”), for money obtained in violation of state securities laws from the Plaintiffs, C. Brate Bryant, Elizabeth A. Bryant Living Trust, and C. Brate Bryant 1990 Revocable Trust (collectively “Plaintiffs”), is nondischargeable. The adversary complaint alleges that the Defendants’ obligation to repay the funds is not subject to discharge for various reasons, including the Defendants’ fraud, misrepresentation, use of a false financial statement, willful and malicious injury, and securities violations. While the complaint asserts claims under 11 U.S.C. §§ 523(a)(2)(A), (a)(4), (a)(6), and (a)(19), the motion before the Court is functionally for partial summary judgment. It is limited to the issue of whether the obligation is subject to discharge pursuant to section 523(a)(19) based on the Defendants’ purchase of a security in violation of Wis. Stats. §§ 551.301 and 551.509, Wisconsin’s state securities laws.

What distinguishes this case is that the Plaintiffs asserted claims in a pre-bank-ruptcy lawsuit that may be nondischargeable under 11 U.S.C. § 523(a)(19). Judgments were entered in that state court action determining there was a violation of Wis. Stats. §§ 551.301 and 551.509.

RELEVANT BACKGROUND

The Plaintiffs filed an action in state court against the Defendants on May 13, 2009. The Defendants participated in that action. That participation included filing a document that was construed by the court as an answer, in addition to appearances at hearings, requests for adjournments, and examinations of one or more witnesses.1 [806]*806Judgment on the pleadings as to the claim for sale of unregistered securities pursuant to Wis. Stat. § 802.06(3) was granted to the Plaintiffs by the state court on December 28, 2009. The state court judgment against the Defendants was entered on June 3, 2010, on the cause of action for sale of unregistered securities. The judgment was in the amount of $974,104.46 including costs and fees.

On December 10, 2010, a further judgment was entered in the same amount granting judgment based on three additional claims or causes of action. The sums awarded in that judgment were the same damages granted in the initial judgment but were determined to include additional interest from June 3, 2010. The order for judgment dated December 4, 2010 denied punitive damages.

The Defendants concede there is a state court judgment against them that is based on a determination there was a violation of Wisconsin state securities laws. Nonetheless, they argue the claims “were never actually litigated.” Despite having appeared at hearings and filing what was construed as an answer, the Defendants claim there was “no adjudication on the merits” since they did not defend or oppose the actions, resulting in a default judgment. Further, they argue they were unsophisticated and, without funds to continue defense of the matter, were unaware of the consequences of failing to defend.2 Finally, the Defendants dispute that the entire amount of the judgment is attributable to the claims for violation of securities law3 and they stress that payments from other liable parties were required to be applied to reduce the amount of the judgment.

The Plaintiffs respond that no material issues of fact have been established. They urge this Court to ignore the argument that the amount that is nondischargeable may be less than the original judgment based on payment from other' sources. The Plaintiffs contend that assertions based on “information and belief’ are insufficient to establish a genuine issue of fact. The judgment provides that the Plaintiffs “shall credit Paul Clements monies received from bankruptcy or the Receiver and provide notice upon receipt to Defendants.”

DISCUSSION

A. Jurisdiction

This Court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334, and the order of reference in this District.

A bankruptcy court to whom a case has been referred may enter a final judgment on any “corq” proceeding arising under the Bankruptcy Code or arising in a case under the Bankruptcy Code. 28 U.S.C. § 157(b)(1). Whether a debt is nondis-chargeable in a debtor’s bankruptcy case is a “core” proceeding. 28 U.S.C. § 157(b)(2)(I).

B. Summary Judgment Standards

Summary judgment is appropriate only if the record, including “affidavits or decla[807]*807rations ... or other materials” “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) and (c); Fed. R. Bankr. P. 7056. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct 1232, 31 L.Ed.2d 569 (1972); Mintz v. Mathers Fund, Inc., 463 F.2d 495 (7th Cir. 1972). Not every fact is material, and materiality depends on the applicable substantive law. Thus, if the disputed facts would not affect the outcome of the case, they are not material and do not preclude summary judgment.

The movant has the burden to demonstrate there is no genuine issue of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Furthermore, the evidence offered by the movant is viewed in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, once the motion for summary judgment has been made and properly supported, Celotex, 477 U.S. at 324, 106 S.Ct. 2548, the party opposing the motion may not rely on the mere allegations and denials contained in its pleadings. Rather, the opposing party must submit countervailing evidence to show that a genuine issue exists for trial. Fed. R. Civ. P. 56(e). No genuine issue for trial exists if the record taken as a whole does not allow a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

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Cite This Page — Counsel Stack

Bluebook (online)
570 B.R. 803, 2017 Bankr. LEXIS 2102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-clements-in-re-clements-wiwb-2017.