United States Court of Appeals,
Eleventh Circuit.
No. 94-2384.
In re Edwin Leo VANN, Debtor.
CITY BANK & TRUST CO., Plaintiff-Appellant,
v.
Edwin Leo VANN, Defendant-Appellee.
Oct. 19, 1995.
Appeal from the United States District Court for the Middle District of Florida. (No. 93-817-CIV-T-21C), L. Clure Morton, Judge., and Bankruptcy Court (No. 90-10082-8B7), Thomas E. Baynes, Jr., Judge.
Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HENDERSON, Senior Circuit Judge.
BIRCH, Circuit Judge:
This appeal presents the first impression issue of what
standard of reliance a creditor must satisfy under section
523(a)(2)(A) of the Bankruptcy Code to prevent the discharge of a
debt. The bankruptcy court held that a creditor's reliance on the
debtor's misrepresentations must be reasonable. The court rejected
the creditor's claim that reasonable reliance was an overly
stringent standard or, in the alternative, that their reliance met
the reasonable reliance standard. The district court summarily
affirmed; we REVERSE and REMAND for further factfinding.
I. BACKGROUND
In 1985, defendant-appellee Edwin L. Vann sought credit from
City Bank for the opening of a cheese processing plant in
Tennessee. Vann submitted a financial statement to
plaintiff-appellant City Bank & Trust Company's ("City Bank"), and a representative from City Bank visited Vann at his home in Florida
to investigate the real estate holdings and other properties relied
upon by Vann to support the extension of credit. Between the
initiation of credit negotiations and the eventual closing of the
loan, Vann's financial condition deteriorated. City Bank did not
request updated financial information from Vann prior to the
closing of the loan, and Vann did not disclose these changes
despite representations in the loan documents that no changes had
occurred. Vann subsequently filed bankruptcy under Chapter 11. City Bank filed an adversary proceeding challenging the
dischargeability of Vann's debt to it. City Bank charged that Vann
obtained the credit by false pretenses, false representations, or
actual fraud under section 523(a)(2)(A), and that it reasonably
relied on Vann's financial statement, which was materially false
under section 523(a)(2)(B)1. The bankruptcy court concluded (1)
1 Section 523(a)(2) provides that an individual debtor's debt incurred
(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; [or]
(B) use of a statement in writing—
(i) that is materially false;
(ii) respecting the debtor's or an insider's financial condition;
(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and that, although the bank had been "hoodwinked" by Vann, there was no
actual fraud, (2) that, even if there were false pretenses or false
representations under section 523(a)(2)(A), City Bank was required
to show reasonable reliance on Vann's representations and it failed
to meet that standard; and (3) that City Bank's reliance on Vann's
materially false financial statement was unreasonable. R1-1-90-297
(Trans. of Proceedings).
Upon City Bank's motion for further findings of fact and
conclusions of law as to its section 523(a)(2)(A) claim, the
bankruptcy court held that City Bank's reliance must be reasonable
under both section 523(a)(2)(A) and section 523(a)(2)(B).
Therefore, it denied City Bank's motion and entered judgment in the
adversary proceeding for Vann. The district court summarily
affirmed the bankruptcy court. Because we conclude that, in
contrast to section 523(a)(2)(B), section 523(a)(2)(A) does not
require the creditor to show reasonable reliance on the debtor's
representations, we REVERSE and REMAND.
II. DISCUSSION
We review the bankruptcy court's construction of section
523(a)(2)(A) de novo. See Haas v. Internal Revenue Service (In re
Haas), 48 F.3d 1153, 1154 (11th Cir.1995). Section 523(a)(2)(A)
does not address the standard of reliance that a creditor must
prove to prevent discharge of a debt incurred for an extension of
credit obtained by false pretenses, false representation(s) or
(iv) that the debtor caused to be made or published with intent to deceive....
will not be discharged in bankruptcy. § 523(a)(2) (emphasis added). actual fraud. Nevertheless, the circuit courts agree that, before
the bankruptcy court will withhold discharge, the creditor must
show that it relied on the debtor's misstatements as a necessary
element of recovery for false pretenses, for false representations
or for actual fraud. See generally Eugene Parks Law Corp. Defined
Benefit Pension Plan v. Kirsh (In re Kirsh), 973 F.2d 1454, 1457
(9th Cir.1992) (per curiam); BancBoston Mortgage Corp. v. Ledford
(In re Ledford), 970 F.2d 1556, 1559-60 (6th Cir.1992), cert.
denied, --- U.S. ----, 113 S.Ct. 1272, 122 L.Ed.2d 667 (1993);
Allison v. Roberts (In re Allison), 960 F.2d 481, 484 (5th
Cir.1992); Commerce Bank & Trust Co. v. Burgess (In re Burgess),
955 F.2d 134, 140 (1st Cir.1992); Thul v. Ophaug (In re Ophaug),
827 F.2d 340, 343 (8th Cir.1987); Schweig v. Hunter (In re
Hunter), 780 F.2d 1577 (11th Cir.1986); First Nat'l. Bank of Red 2 Bud v. Kimzey (In re Kimzey), 761 F.2d 421, 423 (7th Cir.1985).
The similarity, however, ends there. Three standards of reliance
apparently are used by the circuit courts: (1) reasonable
2 The American Law of Torts provides that
[i]t is a fundamental principle of the law of fraud throughout the United States, regardless of the form of relief sought, that in order to secure redress, the representee (person to whom or which the misrepresentation was made) must have relied upon the statement or representation as an inducement to his action or injurious change of position. As the general American law declares, a representation must have been acted upon in the manner contemplated by the party making it, or else in some manner reasonably probable.
Stuart M. Speiser, Charles F. Krause, & Alfred W. Gans, 9 American Law of Torts § 32:49 (1992). reliance, (2) justifiable reliance, and (3) actual reliance.3
Although there is some debate about the exact meaning of
"reasonable" reliance, see In re Kirsh, 973 F.2d at 1459-60, we
conclude the requirement of reasonableness to be a more stringent
standard than justifiable reliance or actual reliance. But see
Martin v. Bank of Germantown (In re Martin), 761 F.2d 1163, 1166
(6th Cir.1985) (holding that the reasonableness requirement of §
523(a)(2)(B) "cannot be said to be a rigorous requirement, but
rather is directed at creditors acting in bad faith"). Reasonable
reliance connotes the use of the standard of ordinary and average
person. See In re Kirsh, 973 F.2d at 1458, 1459-60. The Tenth
Circuit, upon which the bankruptcy court relied, stated that
[t]his standard of reasonableness places a measure of responsibility upon a creditor to ensure that there exists some basis for relying upon the debtor's representations. Of course, the reasonableness of a creditor's reliance will be evaluated according to the particular facts and circumstances present in a given case.
First Bank v. Mullet (In re Mullet), 817 F.2d 677, 679 (10th
Cir.1987). The Tenth Circuit concluded that the bank's failure to
investigate precluded reasonable reliance. Id. at 681-82.
Interpreting § 523(a)(2)(B), the Fifth Circuit held that
reasonable reliance would be ascertained by asking the following
questions:
whether there had been previous business dealings with the debtor that gave rise to a relationship of trust; whether there were any "red flags" that would have alerted an ordinarily prudent lender to the possibility that the
3 Because of the split in the circuits, the Supreme Court has granted certiorari to a First Circuit case to answer this question. Field v. Mans, 1994 WL 497614, No. 94-1391, 1994 U.S.App. LEXIS 24927 (1st Cir. Aug. 29, 1994), cert. granted, --- U.S. ----, 115 S.Ct. 1821, 131 L.Ed.2d 743 (1995). representations relied upon were not accurate; and whether even minimal investigation would have revealed the inaccuracy of the debtor's representations.
Coston v. Bank of Malvern (In re Coston), 991 F.2d 257, 261 (5th
Cir.1993) (en banc) (per curiam); see also In re Ledford, 970 F.2d
at 1560 (using the same reliance standard for § 523(a)(2)(A) and §
523(a)(2)(B)).4
Justifiable reliance heretofore has been used only by the
Ninth Circuit. In re Kirsh, 973 F.2d at 1459. Justifiable
reliance represents a compromise between the rigid reasonableness
standard and the lenient actual reliance standard. At the other
end of the spectrum is actual reliance. Actual reliance requires
that the creditor prove that he in fact relied upon the
representations of the debtor. Reasonableness of the reliance may
be used as proof that the creditor did rely. In re Allison, 960
F.2d at 485. For the reasons set forth below, we join the Ninth
Circuit in adopting justifiable reliance as this circuit's standard
of reliance by a creditor on the debtor's misrepresentations to
prevent discharge of a debt pursuant to 11 U.S.C. § 523(a)(2)(A).5
4 To the extent that the reasonable reliance cases use a subjective standard to determine whether or not the reliance is adequate to prevent discharge, we would categorize the cases as adhering not to a true reasonable reliance standard, but rather to a justifiable reliance standard. See In re Kirsh, 973 F.2d at 1459-60 ("This use of the word "reasonable' in place of "justifiable' is of no real moment unless a later reader is led away from the true content of the reliance element."). 5 We address first the claim by Vann that we have already answered this question. Relying on Schweig v. Hunter (In re Hunter), 780 F.2d 1577 (11th Cir.1986), and St. Laurent v. Ambrose (In re St. Laurent), 991 F.2d 672 (11th Cir.1993), Vann argues that this court has expressly adopted a standard of reasonable reliance. Vann rests his argument on the following passage of In re St. Laurent: A. STATUTORY CONSTRUCTION
Although section 523(a)(2)(A) is silent with respect to the
For purposes of § 523(a)(2)(A), a creditor must prove that (1) the debtor made a false representation with intent to deceive the creditor, (2) the creditor relied on the representation, (3) that his reliance was reasonably founded, and (4) that the creditor sustained loss as a result of the representation.
Id. at 676 (emphasis added). Indeed, we have stated that a creditor's reliance must be "reasonably founded." See id.; In re Hunter, 780 F.2d at 1579. Vann contends that because In re St. Laurent was addressing the application of collateral estoppel to section 523(a)(2)(A), our statement regarding "reasonably founded" is binding on us.
We do not view In re St. Laurent with the same effect. Our finding that collateral estoppel precluded the bankruptcy court from relitigating fraud was based on our conclusion that the "elements of common law fraud in Florida " "closely mirror" the requirements of section 523(a)(2)(A) and, hence, are "sufficiently identical ... to meet the first prong of the test for collateral estoppel." ' " In re St. Laurent, 991 F.2d at 676 (omission in original) (quoting In re Jolly, 124 B.R. 365, 367 (Bankr.M.D.Fla.1991)). Moreover, the Florida standard of reliance we cited in In re St. Laurent was actual reliance. Id. at 676 ("To prove fraud under Florida law, a plaintiff must establish that the defendant made a "deliberate and knowing misrepresentation designed to cause, and actually causing detrimental reliance by the plaintiff.' ") (quoting First Interstate Dev. Corp. v. Ablanedo, 511 So.2d 536, 539 (Fla.1987)). In In re Hunter, we concluded that there were no false representations or false pretenses, and accordingly, we never reached the issue of reliance. In re Hunter, 780 F.2d at 1580. We made no statement in In re St. Laurent or in In re Hunter, regarding what "reasonably founded" means, and we refuse to be bound by dicta. See New Port Largo, Inc. v. Monroe County, 985 F.2d 1488, 1500 n. 7 ("For good or for bad, opinion-writing judges—unlike legislators—can make cases decide no more than the cases present. For example, no matter how often or how plainly a judicial panel may put in its opinion that "we hold X,' "X' is not law and is not binding on later panels unless "X' was squarely presented by the facts of the case and was a proposition that absolutely must have been decided to decide the concrete case then before the court.") (Edmondson, J., concurring), cert. denied, --- U.S. ----, 114 S.Ct. 439, 126 L.Ed.2d 373 (1993). Hence, we now address for the first time directly what standard of reliance is required under section 523(a)(2)(A). standard of reliance, its companion section 523(a)(2)(B) is not.
Subsection (B) states prominently that the creditor's reliance on
the debtor's statement must have been reasonable. We thus begin
with the basic premise of statutory construction that " " "[w]here
Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion." ' " Rodriguez v. United States,
480 U.S. 522, 525, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (per
curiam) (quoting Russello v. United States, 464 U.S. 16, 23, 104
S.Ct. 296, 300, 78 L.Ed.2d 17 (1983)); accord In re Haas, 48 F.3d
at 1156-57; United States v. Jordan, 915 F.2d 622, 628 (11th
Cir.1990), cert. denied, 499 U.S. 979, 111 S.Ct. 1629, 113 L.Ed.2d
725 (1991). Vann has pointed to no authority supporting the
concept that Congress specifically intended for a reasonable
reliance standard to apply. Thus, we can deduce from the exclusion
of the reasonable reliance standard in the section immediately
preceding section 523(a)(2)(B) only that some other standard than
reasonable was intended by the legislature. Cf. In re Ophaug, 827
F.2d at 343 (relying on the purpose behind subsection (B) to
conclude "having no reason to think that Congress meant anything
other than what it said, we can only conclude that section
523(a)(2)(A) does not require a creditor to prove that his reliance
on the debtor's fraudulent misrepresentations was reasonable").
B. LEGISLATIVE HISTORY
Because Congress failed to provide the standard of reliance
in section 523(a)(2)(A), we look to the legislative history of that section to determine whether Congress's intent can be ascertained
there. Sections 523(a)(2) of the 1978 Bankruptcy Code embodied the
revision of Bankruptcy Act section 17(2). Although there is little
information concerning the passage of section 523(a)(2)(A),
specifically, it is clear that the Congress intended the reasonable
reliance standard only for a nondischargeability claim made
pursuant to section 523(a)(2)(B). The House of Representatives
Report on the Bankruptcy Code of 1978 contained a lengthy statement
regarding the use of false financial statements to obtain money,
property, services, or credit. See H.R.Rep. No. 595, 95th Cong.,
1st Sess. 129-32 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6090-
93. Section 523(a)(2)(B) specifically was enacted to protect
consumers against "abuse in consumer cases," and to guard "the
fresh start goal of the bankruptcy discharge." Id. at 130, 1978
U.S.C.C.A.N. at 6091 (emphasis added). The report, where
discussing the effect of false financial statements, states in
pertinent part: "[t]he difference[ ] [is] that current law ...
requires only reliance, not reasonable reliance, by the creditor on
the statement. The courts have recently begun to require that the
reliance be reasonable, however." Id. Nowhere in the report is a
reference made to a requirement of reasonable reliance to prevent
discharge on the basis of unwritten false statements. 6 Thus, our
6 In fact, the statements of one Representative, 124 Cong.Rec. 11,089 (1978) (statement of Rep. Edwards), reprinted in 1978 U.S.C.C.A.N. 6436, 6453, and one Senator, 124 Cong.Rec. 17,406 (1978) (statement of Sen. DeConcini), reprinted in 1978 U.S.C.C.A.N. 6505, 6522 emphasize that sections 523(a)(2)(A) and 523(a)(2)(B) are mutually exclusive in their purposes, supporting the construction that reasonable reliance cannot be read into section 523(a)(2)(A). conclusion that only section 523(a)(2)(B) requires reasonable
reliance is fortified.
C. COMMON LAW
Because neither the statute nor the legislative history
indicates whether a creditor must demonstrate actual reliance7 or
justifiable reliance to prevent discharge according to section
523(a)(2)(A), we turn to the common law. See In re Kirsh, 973 F.2d
at 1457-58; Cf. Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501
U.S. 104, 106-108, 111 S.Ct. 2166, 2169, 115 L.Ed.2d 96 (1991)
("Congress is understood to legislate against a background of
common-law adjudicatory principles."); Briscoe v. LaHue, 460 U.S.
325, 330-34, 103 S.Ct. 1108, 1113-15, 75 L.Ed.2d 96 (1983)
(concluding that witness immunity was " "so well grounded in
history and reason' that we cannot believe that Congress impinged
on it "by covert inclusion in the general language before us' "
(quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788,
95 L.Ed. 1019 (1951))); United States v. Turley, 352 U.S. 407,
411, 77 S.Ct. 397, 399, 1 L.Ed.2d 430 (1957) ("We recognize that
where a federal criminal statute uses a common-law term of
established meaning without otherwise defining it, the general
practice is to give that term its common-law meaning."). The
Restatement (Second) of Torts provides the common law rule in these
cases:
The recipient of a fraudulent misrepresentation can recover against its maker for pecuniary loss resulting from it if, but
7 The statement in House Report No. 595 that "current law ... requires only reliance" pertains to § 523(a)(2)(B), and thus, the statement does not reveal congressional intent regarding § 523(a)(2)(A). only if,
(a) he relies on the misrepresentation in acting or refraining from action, and
(b) his reliance is justifiable.
Restatement (Second) of Torts § 537 (1977) (emphasis added).
Another generally recognized authority, Prosser & Keeton on
Torts states that "[n]ot only must there be reliance but the
reliance must be justifiable under the circumstances." W. Page
Keeton, Prosser & Keeton on Torts § 108, at 749 (5th ed. 1984).
The justifiability requirement provides "some objective
corroboration to plaintiff's claim that he did rely." Id. at 750.
To constitute justifiable reliance, "[t]he plaintiff's
conduct must not be so utterly unreasonable, in the light of the
information apparent to him, that the law may properly say that his
loss is his own responsibility." Id. This conclusion, however,
does not mean that the reliance must be objectively reasonable.
"Although the plaintiff's reliance on the misrepresentation must be
justifiable, ... this does not mean that his conduct must conform
to the standard of the reasonable man." Restatement (Second) of
Torts § 545A cmt. b. Justifiable reliance is gauged by "an
individual standard of the plaintiff's own capacity and the
knowledge which he has, or which may fairly be charged against him
from the facts within his observation in the light of his
individual case." Prosser & Keeton on Torts at 751 (emphasis
added). Additionally,
[i]t is only where, under the circumstances, the facts should be apparent to one of [plaintiff's] knowledge and intelligence from a cursory glance, or he has discovered something which should serve as a warning that he is being deceived, that he is required to make an investigation of his own. Id. at 752 (footnotes omitted); see also Mayer v. Spanel Int'l
Ltd. (In re Mayer), 51 F.3d 670, 676 (7th Cir.1995) ("A victim who
lacks access to the truth, and has not been alerted to the facts
that would alert him to the truth, is not to be ... blocked by a
discharge under the bankruptcy laws—just because he did not conduct
a more thorough investigation."). Under the common law, a person
was not barred from recovery because he failed to undertake an
investigation of the truth of a misrepresentation even where "the
reasonable man of ordinary caution would do so." Restatement
(Second) of Torts § 545A cmt. b. This subjective construction is
consistent with the Supreme Court's interpretation of the statutory
purpose. See Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654,
659, 12 L.Ed.2d 755 (1991) ("We think it unlikely that Congress ...
would have favored the interest in giving perpetrators of fraud a
fresh start over the interest in protecting victims of fraud.").
Thus, we adopt the standard of justifiable reliance.
The bankruptcy court embraced the reasonable reliance
standard as stated by the Tenth Circuit and concluded that the bank
would have been "better served by demanding an appraisal," of
certain property and should have made other inquiries of the debtor
to ascertain the status of other properties. R1-1-90-292. The
court found that because the bank failed to do so, it was not
entitled to discharge on the basis of either section 523(a)(2)(A)
or section 523(a)(2)(B). Although the bankruptcy court, with
hindsight, can see plainly that the bank would have been "better
served by demanding an appraisal" and by making further inquiries
of the debtor, even the cases upon which the court relied admonish that the court should not " "second guess a creditor's decision to
make a loan' " or " "base its decision regarding discharge on
whether it would have extended the loan.' " In re Mullet, 817 F.2d
at 681 (quoting Northern Trust Co. v. Garman (In re Garman), 643
F.2d 1252, 1258 (7th Cir.1980) (interpreting section 17(2) of the
Bankruptcy Act), cert. denied, 450 U.S. 910, 101 S.Ct. 1347, 67
L.Ed.2d 333 (1981)).
By adopting the standard of justifiable reliance, we
necessarily reject the standard of actual reliance employed by the
Eighth Circuit in In re Ophaug and the Fifth Circuit In re Allison.
It cannot be argued that a standard of actual reliance is supported
by the plain language of the statute. Section 523(a)(2)(A) does
not mention reliance in any form and, to the extent that reliance
is required, it is as an element of actual fraud, false pretenses
or false representations that must be proven to prevent discharge
of the debt. Moreover, a standard of actual reliance does not
"reflect a fair balance between the[ ] conflicting interests" of
discouraging fraud and of providing the honest but unfortunate
debtor a fresh start that are present in the dischargeability
provisions. Grogan, 498 U.S. at 287, 111 S.Ct. at 659. A standard
of actual reliance requires little of the creditor; whereas,
justifiable reliance requires the creditor to act appropriately
according to his individual circumstances. Therefore, the fresh
start policy of the Bankruptcy Code is intact while fraudulent
debtors are precluded from profiting from their misdeeds.
D. APPLICATION OF JUSTIFIABLE RELIANCE STANDARD
With respect to section 523(a)(2)(A), the bankruptcy court found that, although Vann "hoodwinked" City Bank, there was no
actual fraud in Vann's obtaining the loan from City Bank. R1-1-90-
297. The bankruptcy court, however, refused to make any additional
factfinding to assist our review. If Vann obtained the loan from
City Bank by false pretenses or by a false representation, and if
City Bank justifiably relied on his misrepresentations, then Vann
is not entitled to discharge of that debt. City Bank is not
required to prove that it reasonably relied on Vann's
misrepresentations.
III. CONCLUSION
This appeal required us to decide the standard of reliance
that a creditor must satisfy under section 523(a)(2)(A) of the
Bankruptcy Code to prevent discharge of a debt. We have determined
that standard to be justifiable reliance. Because the bankruptcy
court did not make sufficient factfindings for our review, we
REVERSE and REMAND to the district court with instructions to
remand to the bankruptcy court for proceedings consistent with this
opinion.