Colombo Bank, F.S.B. v. Sharp

477 B.R. 613, 2008 U.S. Dist. LEXIS 123724, 2008 WL 8889979
CourtDistrict Court, D. Maryland
DecidedMay 5, 2008
DocketCivil Action No. DKC 2007-2935
StatusPublished
Cited by9 cases

This text of 477 B.R. 613 (Colombo Bank, F.S.B. v. Sharp) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colombo Bank, F.S.B. v. Sharp, 477 B.R. 613, 2008 U.S. Dist. LEXIS 123724, 2008 WL 8889979 (D. Md. 2008).

Opinion

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution is the appeal of Colombo Bank, F.S.B. from the Orders of United States Bankruptcy Judge Nancy V. Alquist denying Colombo Bank’s objection to discharge, (bankr. papers 61, 82). Oral argument is deemed unnecessary because the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. See Fed.R.Bankr.P. 8012. For the reasons that follow, the court will affirm the orders of the bankruptcy court.

I. Background

This appeal arises from a consolidated adversary proceeding in which the bankruptcy court granted Peter and Joycelyn Sharp a discharge of the debt they owed to Colombo Bank, F.S.B. (“the Bank”). The Sharps defaulted on a loan from the Bank and subsequently filed for Chapter 7 bankruptcy, under which their debt to the Bank would be discharged. In the proceeding below, the Bank sought a determination of nondischargeability under 11 U.S.C. § 523(a)(2)(A) and § 523(a)(2)(B).1 The bankruptcy court rejected the Bank’s arguments and found that no exceptions to discharge applied. The undisputed facts found by the bankruptcy court are as follows.

Mr. Sharp is the founding member, president and sole shareholder of First Charter Title Corporation. In either March or April 1995, Mr. Sharp approached the Bank for a $500,000 loan to fund an amount owing from a settlement agreement reached with a client of First Charter. On September 25, 1995, the parties closed on a $500,000 loan to be repaid within one year. As security for the loan, the Bank received a mortgage which it believed was a second priority lien on the Sharps’ Bethesda residence and a second priority lien on the Sharps’ South Carolina vacation home. The Bank did not know that its mortgage was in fact in third position behind the first mortgages and an undisclosed second mortgage from Signet Bank to secure a home equity line of credit in the amount of $75,000 (“the Signet loan”).

At some point prior to closing, as part of the loan negotiations, Mr. Sharp presented the Bank with a financial disclosure statement dated December 12, 1994, which pur[618]*618ported to describe Mr. Sharp’s assets and liabilities. (Pl.’s Hr’g Ex. 3). The principal assets listed were the ownership of First Charter (valued at $3 million), the Sharps’ residence in Bethesda, Maryland (valued at $1.3 million), and the Sharps’ vacation residence in South Carolina (valued at $525,000). The principal liabilities listed were the first mortgages on each of the Maryland and South Carolina properties (for $748,000 and $367,000, respectively).2 The financial statement did not list the Signet loan, even though it had been recorded on March 6, 1995. The bankruptcy court found that Mr. Sharp’s presentment of the December 1994 disclosure after the Signet loan had been made was a fraudulent misrepresentation.

Also in connection with the loan negotiations, Mr. Sharp provided a commitment for title insurance from American Pioneer, to which was attached a title abstract of the Bethesda property prepared by First Charter. (Pl.’s Hr’g Ex. 9). Although the title abstract had an effective date of September 11, 1995, it did not reflect the Signet loan. At the hearing below, Mr. Sharp attempted to explain the deficiency by stating that the abstract had been prepared in January 1995. The bankruptcy court did not believe that a professional title company would issue a title commitment based on eight month-old title work. The court found that Mr. Sharp “misled the Bank and that he deliberately furnished a stale financial disclosure and a stale title abstract which he knew did not reflect the Signet Loan and mortgage.” (Bankr. Paper 61, at 6) (emphasis in original).

Although the bankruptcy court found that Mr. Sharp made a fraudulent misrepresentation to the Bank, it found that the Bank had not established the other elements necessary to require an exception to discharge under either 11 U.S.C. § 523(a)(2)(A) or § 523(a)(2)(B). The court found that Mrs. Sharp did not know of the misrepresentations and had no intent to deceive. The Bank does not appeal the court’s findings regarding Mrs. Sharp.

The Bank presents the following four issues on appeal: regarding 11 U.S.C. § 523(a)(2)(A), did the bankruptcy court err in finding that the Bank did not justifiably rely on Mr. Sharp’s fraudulent concealment of the Signet loan? and did the court err in concluding that the fraudulent concealment of the Signet loan was not the proximate cause of its loss? Regarding 11 U.S.C. § 523(a)(2)(B), did the court err in finding that the fraudulent financial statement was immaterial to the Bank’s loss? and did the court err in finding that the Bank’s reliance on Mr. Sharp’s fraudulent financial statement was not reasonable?

II. Standard of Review

On appeal from the bankruptcy court, the district court acts as an appellate court and reviews the bankruptcy court’s findings of fact for clear error and conclusions of law de novo. See In re Johnson, 960 F.2d 396, 399 (4th Cir.1992); In re Bryson Props., XVIII, 961 F.2d 496, 499 (4th Cir.1992). For findings of fact, “due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” Fed. R.Bankr.P. 8013. Under the clearly erroneous standard, a reviewing court will not reverse “simply because it is convinced that it would have decided the case differently.” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Citizens Bank of Md. v. Broyles (Matter of Broyles), 55 F.3d 980, [619]*619983 (4th Cir.1995). A finding of fact is clearly erroneous only when the reviewing court “is left with a definite and firm conviction that a mistake has been committed.” Anderson, 470 U.S. at 573, 105 S.Ct. 1504 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 574, 105 S.Ct. 1504.

III. Analysis

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Cite This Page — Counsel Stack

Bluebook (online)
477 B.R. 613, 2008 U.S. Dist. LEXIS 123724, 2008 WL 8889979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colombo-bank-fsb-v-sharp-mdd-2008.