Citizens Bank v. Freeman (In re Freeman)

598 B.R. 839
CourtUnited States Bankruptcy Court, S.D. Mississippi
DecidedMarch 28, 2019
DocketCASE NO. 17-52309-KMS; ADV. NO. 18-06014-KMS; CASE NO. 17-52319-KMS; ADV. PROC. NO. 18-06013-KMS
StatusPublished

This text of 598 B.R. 839 (Citizens Bank v. Freeman (In re Freeman)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens Bank v. Freeman (In re Freeman), 598 B.R. 839 (Miss. 2019).

Opinion

Judge Katharine M. Samson, United States Bankruptcy Judge

These two adversary proceedings came on for joint trial on substantively identical Complaints by Plaintiff/Creditor Citizens Bank ("the Bank") against Defendants/Debtors Connor Dewayne Freeman ("Connor") and Derek Trace Cooley ("Trace"). These proceedings are within the bankruptcy court's core jurisdiction under 28 U.S.C. § 157(b)(2)(I).

The Bank challenges the dischargeability of debts owed by Connor and Trace on promissory notes for loans ("Loan One" and "Loan Two" or, together, "Loans") secured by farm equipment, trucks, and a trailer. The Loans went into default, and the Bank asserts that the amounts still owed are excepted from each Debtor's chapter 7 discharge under 11 U.S.C. § 523(a)(2)(A) and (a)(6). However, the Bank failed to prove nondischargeability as to either debt or either Debtor.

FINDINGS OF FACT

I. Summary

At the time these events transpired, Connor and Trace were, respectively, twenty-two and twenty-three years old. Connor had completed a two-year agriculture-related degree at a community college and worked full time as a farm hand on his father's farm. Trace's formal education ended with high school. He worked part time on the farm but made his living in the oil fields.

Connor, Trace, and Craig Freeman-Connor's father and Trace's father-in-law-were *843all makers on Loan One for $ 110,105.00 and Loan Two for $ 105,125.00. Connor and Trace signed the promissory notes and security agreements because Craig implored them to. Both young men believed they would never have to make any of the payments on either Loan, because Craig would make them all. And the loan officer was told that Craig "paid everything," as Trace put it.

Craig is now incarcerated, and neither Connor nor Trace are on speaking terms with him. Neither Connor nor Trace was ever in possession of any of the collateral that was pledged for the Loans and neither got any of the money that was loaned.

The complete story unfolded at trial through documentary evidence and testimony of Connor, Trace, and the Bank's President of Commercial Lending, Douglas Neal. The loan officer directly involved with the Loans, Stan Pickering, no longer works for the Bank and did not testify.

II. Loan One ($ 110,105.00)

On June 3, 2016, Connor, Trace, and Craig executed the promissory note and commercial security agreement for Loan One in one of the Bank's branch locations. Tr. 18:10-12, Trace A.P. ECF No. 23, Connor A.P. ECF No. 21;1 Bank Ex. Nos. 6, 7, ECF No. 19 at 9-15.2 Stan Pickering signed the documents for the Bank.

As Connor and Trace testified, the purpose of Loan One was to buy equipment for use on the farm. Tr. 71:3-6; 92:20-22. The borrowers pledged as collateral the seven pieces of equipment being purchased.3

The bill of sale, which was prepared by the Bank's loan processors and executed at the branch, conveyed the equipment to all three borrowers. ECF No. 19 at 7; Tr. 18:10-12; Tr. 40:23-25. But in Connor's and Trace's minds, the equipment was intended to be Craig's. Tr. 71:11-15; 91:13-16.

The seller was Thomas McLain, who had his own farming operation but also worked part-time on Craig's farm. Tr. 69:24-70:6. The Bank wrote a $ 110,000.00 check to McLain, with the additional $ 105.00 in loan proceeds going to fees. ECF No. 19 at 8, 28. Connor later heard that McLain cashed the check and gave the money to Craig. Tr. 72:21-73:2. McLain has since died. Tr. 76:13-16.

After the borrowers' default, the Bank was unable to recover its collateral, raising the question at trial of whether the collateral ever actually existed. Connor knew the equipment existed, having seen it, although he did not check the serial numbers. Tr. 70:9-14. Pickering saw cell-phone pictures of the "significant pieces," particularly the John Deere equipment. Tr. 19:18-20:1; 42:13-15. And according to Trace, McLain did indeed own the equipment. Tr. 99:23-24.

*844Also on the question of whether the collateral existed, deposition testimony by the manager of the local Deere dealership was read into the record at trial. He testified that product identification numbers for the two pieces of Deere equipment on the bill of sale did not conform to Deere's product numbering system, Tr. 111:22-112:21, but couldn't say whether the errors were intentional or inadvertent or who might have made them:

Q: And with these numbers, is it possible that those numbers could have been typed wrong?
A: Could have been. Yes, sir.
Q: Could they have been given to the bank, the wrong numbers, correct?
A: Correct. Correct.
Q: But do you know who made the error?
A: I have no idea.
....
Q: You do not know if it was intentional or not?
A: Correct.

Tr. 116:2-14.

Neither Connor nor Trace knows where the collateral is or what happened to it. Tr. 82:21-83:22; Tr. 101:25-102:12.

III. Loan Two ($ 105,125.00)

On July 1, 2016, exactly four weeks after executing the documents for Loan One, Connor, Trace, and Craig were back at the Bank branch office to sign an application, promissory note and commercial security agreement for Loan Two. Bank Ex. Nos. 10, 11, ECF No. 19 at 20-26. This time, the borrowers pledged a John Deere tractor with front end loader, a trailer,4 and two dump trucks, Tr. 30:12-16. The purpose of Loan Two was to refinance the trucks and equipment. Tr. 65:6-7.

Connor testified that this collateral existed. Tr. 87:13-15 ("Q: [D]o you actually know if it all actually ever existed? A: Yes, sir, it did exist."). Connor also testified that to his knowledge, Craig owned the collateral. Tr. 82:8-10 ("Q: [W]as it your understanding that your father owned the equipment? A: Yes, sir.") Again, Pickering saw pictures of the "big stuff," meaning at least the Deere tractor. Tr. 56:12-22. Again, the manager of the local Deere dealership testified that the product identification numbers on the Deere equipment did not conform to Deere's product numbering system, Tr. 112:22-114:8, but that he could draw no conclusions from that fact, Tr. 116:2-14.

Ownership of trucks is shown by title. For the trucks, Pickering was presented with open titles signed on the back by the previous owners. Tr. 57:22-25. The Bank retitled the trucks. Tr. 58:1. In whose names they were retitled-whether Connor's, Trace's, Craig's, any two, or all three-is unknown to the Court; the titles are not in evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
598 B.R. 839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-bank-v-freeman-in-re-freeman-mssb-2019.