Buckley v. Bartenwerfer (In re Bartenwerfer)

549 B.R. 222
CourtUnited States Bankruptcy Court, N.D. California
DecidedApril 1, 2016
DocketCase No. 13-30827 HLB; Adv. Proc. No. 13-03185 HLB
StatusPublished
Cited by1 cases

This text of 549 B.R. 222 (Buckley v. Bartenwerfer (In re Bartenwerfer)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buckley v. Bartenwerfer (In re Bartenwerfer), 549 B.R. 222 (Cal. 2016).

Opinion

MEMORANDUM DECISION

HANNAH L. BLUMENSTIEL, U.S. Bankruptcy Judge

I. INTRODUCTION

This matter came on for trial on January 19 and 22, 2016 on Plaintiff Kieran Buckley’s complaint to determine the dis-chargeability of debt pursuant to 11 U.S.C. § 523(a)(2)(A).1 The sole issue at trial was whether Defendants David and Kate Bar-tenwerfer fraudulently omitted disclosing material defects plaguing real property sold by the Bartenwerfers to Mr. Buckley.

Janet Brayer and Stephen Finestone appeared for Mr. Buckley. Iain MacDonald and Matthew Olson appeared for the Bar-tenwerfers. After the parties rested, the Court took the matter under advisement.

This memorandum decision constitutes the Court’s findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure, as made applicable to this adversary proceeding by Rule 7052 of the Federal Rules of Bankruptcy Procedure. This court has jurisdiction over this action under 28 U.S.C. § 1334(b). The parties have consented to entry of final judgment by this Court in this action, which is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). Venue of this lawsuit is proper pursuant to 28 U.S.C. § 1409.

For the reasons that follow, the Court finds that the Bartenwerfers fraudulently omitted disclosing material defects on the subjéct property and that their related debt to Mr. Buckley is non-dischargeable pursuant to section 523(a)(2)(A).

II. BACKGROUND

Mr. Bartenwerfer received an MBA from Stanford in 1995. He has no education or training in construction and does not hold a contractor’s license. Mrs. Bar-tenwerfer has worked at McKesson for 10 years and is currently employed as a Manager. She also holds a California real [225]*225estate agent’s license. Schedule I.2 The Bartenwerfers operate two businesses: RJUOP I, LLC, a property development business, and Parthenon Design. Statement of Financial Affairs no. 18.

The Bartenwerfers bought and extensively remodeled a home located at 549 28th Street, San Francisco, California (the “Property”), which they subsequently sold to Mr. Buckley. The Bartenwerfers signed disclosure statements regarding the condition of the Property on November 11, 2007. They signed the sales contract on January 24, 2008. Escrow closed on March 14, 2008. Post-sale, Mr. Buckley discovered undisclosed defects and ultimately sued the Bartenwerfers in San Francisco County Superior Court to recoup damages under a number of theories. After a 19-day trial, a jury entered a special verdict. As relevant to this proceeding, the jury found in favor of Mr. Buckley on his'claim for Non-Disclosure of Material Facts as follows:

(1) The Bartenwerfers failed to disclose information that they knew or should have known about water leaks, window conditions, permits, and the fire escape.
(2) Mr. Buckley did not know and could not have reasonably discovered this information.
(3) The Bartenwerfers knew or reasonably should have known that Mr. Buckley did not know and could not have reasonably discovered the information.
(4) This information significantly affected the value or desirability of the property.
(5) Mr. Buckley was harmed.
(6) The Bartenwerfers’ failure to disclose the information was a substantial factor in causing Mr. Buckley’s harm.

The state court entered a judgment against the Bartenwerfers in the amount of $444,671. After post-trial briefing, Mr. Buckley accepted a $210,000 reduction in the amount of the judgment, which was amended to award $234,671.

Mr. Buckley requests a finding of non-dischargeability under section 523(a)(2)(A) as to the damages awarded by the state court for non-disclosure of issues relating to water leaks ($48,981), window conditions ($20,000), status of permits ($14,888), and the fire escape ($5,076); the value/cost differential ($90,000); and costs of suit ($40,-019.89) for a total non-dischargeable debt in the amount of $218,964.89.

The Bartenwerfers do not dispute the amount of damages, but assert that they did not possess the fraudulent intent necessary to except the judgment from discharge under section 523(a)(2)(A).3

[226]*226III. LEGAL STANDARDS

A. Exception to Discharge under section 523(a)(2)

Section 523(a)(2)(A) provides: (a) A discharge under ... 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. 11 U.S.C. § 523(a)(2)(A).

To prevail in a section 523(a)(2)(A) action, a creditor must prove five elements by preponderance of the evidence: (1) a misrepresentation, fraudulent omission or deceptive conduct by the debtor; (2) knowledge of the falsity or deceptiveness of his statement or conduct; (3) the debtor made the representation with the intention and purpose of deceiving the creditor; (4) the creditor justifiably relied on the representation; and (5) the creditor sustained damage as the proximate result of the representation. Turtle Rock Meadows Homeowners Ass’n. v. Slyman (In re Slyman), 234 F.3d 1081, 1085 (9th Cir.2000).

B. Collateral Estoppel

Principles of collateral estoppel apply to proceedings seeking exceptions from discharge pursuant to 11 U.S.C. § 523(a). Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Under the Full Faith and Credit Act, 28 U.S.C. § 1738, the preclusive effect of a state court judgment in a subsequent bankruptcy proceeding is determined by the preclusion law of the state in which the judgment was issued. Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001) (citations omitted). Thus, California law governs the preclusive effect of Mr. Buckley’s judgment.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
549 B.R. 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckley-v-bartenwerfer-in-re-bartenwerfer-canb-2016.