Condon Oil Co. v. Wood (In re Wood)

503 B.R. 705
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedAugust 19, 2013
DocketBankruptcy No. 12-13442; Adversary No. 12-00181
StatusPublished
Cited by5 cases

This text of 503 B.R. 705 (Condon Oil Co. v. Wood (In re Wood)) 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
Condon Oil Co. v. Wood (In re Wood), 503 B.R. 705 (Wis. 2013).

Opinion

MEMORANDUM DECISION

ROBERT D. MARTIN, Bankruptcy Judge.

From April 2009 through January 2012, Wisconsin Street Enterprises, Inc. (“WSE”) operated two gas stations in Portage, Wisconsin. Michael D. Wood, the defendant debtor, was president and part owner of WSE. Condon Oil Company, the plaintiff, sold WSE motor vehicle fuel. In a sales agreement dated March 26, 2009, WSE agreed to purchase gasoline and diesel fuel for its gas station located at 2211 West Wisconsin Street, Portage, WI (the “Wisconsin Street Sales Agreement”). In a later agreement, WSE agreed to purchase gasoline and diesel fuel for its gas station located at 2725 New Pinery Road, Portage, WI (the “New Pinery Sales Agreement”). The agreements branded the stations as ExxonMobil stations and stated that WSE would provide banking and routing numbers to Condon so electronic fund transfer (“EFT”) payments could be debited from WSE’s account. They also required that the point-of-sale (“POS”) equipment (“card readers”) route all debit and credit card payments to Con-don.

The debtor guaranteed all indebtedness of WSE to Condon in an agreement dated March 12, 2009. A year later, on March 18, 2010, the debtor signed a security agreement granting Condon a security interest in the gas pumps and POS equipment at both stations in order to obtain the release of certain rebates from Exxon-Mobil that Condon was holding in escrow. However, while WSE owned the designated collateral at the New Pinery Road location, another entity, Wisconsin Street Properties, owned the collateral at the Wisconsin Street location. The debtor mistakenly believed that WSE owned the equipment at both stations.

The debtor managed and operated both gas stations. He would identify the type and quantity of fuel the station required and place an order with Klemm Tank Lines (“Klemm”). In October 2011, WSE was struggling to maintain its cash flow. Because Condon could directly debit WSE’s main bank account, the debtor opened a bank account at another bank for employee wages to ensure that employees would be paid each month. Then in January 2012, the business unraveled. The debtor began placing partial load order for fuel in order to maintain minimum fuel capacity. He was hoping to wind up the Wisconsin Street location and keep the New Pinery Road location open, but it became clear that both locations would [709]*709have to shut down. Beginning January 6, 2012, Condon’s EFT drafts of WSE’s main bank account, to pay for fuel orders, bounced for insufficient funds. Between January 6-11, 2012, five attempted EFT drafts bounced. WSE did not pay for fuel orders delivered January 4-8, 2012. Additionally, the debtor placed handwritten signs over the credit card readers that said the business had been sold (even though it had not) and therefore only cash and check would be accepted for payment. Many customers would drive up, see the signs, and drive away. Customers who did purchase fuel were unable to make purchases with their credit cards. The credit card reports show a dramatic drop in credit card sales as a result of the signs placed over the card readers. For one location, the drop occurred on January 6, and for the other location, the drop occurred on January 11.

Condon argues that the debtor is personally liable for the amounts owed by WSE to Condon and that debt is nondis-chargeable in bankruptcy. And, Condon seeks a judgment for the nondischargeable debt.

By dint of the United States Supreme Court in Stem v. Marshall, this court recognizes its lack of constitutional jurisdiction to enter a money judgment for a debt that is determined to be nondis-chargeable. Stern v. Marshall, - U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011) reh’g denied, — U.S. -, 132 S.Ct. 56, 180 L.Ed.2d 924 (U.S.2011). Prior to Stern, it was a common practice for bankruptcy courts in the Seventh Circuit to adjudicate the issues of liability and damages along with dischargeability. See In re Hallahan, 936 F.2d 1496, 1508 (7th Cir.1991). Under the reasoning in Stern, this practice must be discontinued.

The Supreme Court in Stern reasoned that where a claim is founded on a “state law action independent of the federal bankruptcy law,” based on private rather than public rights, and “not necessarily resolvable by a ruling on the creditor’s proof of claim in bankruptcy,” it cannot be finally determined by an Article I bankruptcy judge.

Some bankruptcy courts have concluded that Stem does not affect a bankruptcy court’s authority to enter a final judgment on liability and damages in a dischargeability proceeding. See, e.g., In re Boricich, 464 B.R. 335 (Bankr.N.D.Ill.2011) (in which Judge Schmetterer held that it is necessary to determine the amount of debt in order to determine the debt that is nondischargeable). But the amount of the debt is patently unnecessary to a determination that it is nondischargeable. As Douglas Baird explains in Blue Collar Constitutional Law, the Supreme Court in Stem “distinguishes between administering the bankruptcy estate on the one hand and engaging in actions that are the province of a common law judge on the other.” Douglas G. Baird, Blue Collar Constitutional Law, 86 Am. Bankr. L.J. 3, 4-5 (2012). A debt need not be reduced to judgment in order for the court to determine whether that debt is nondischargeable. Johnson v. Weihert (In re Weihert), 489 B.R. 558, 564 (Bankr.W.D.Wis.2013). Once a debt is rendered nondischargeable, it becomes an ordinary debt, and entering judgment on such a debt is an exercise of federal judicial power:

Obtaining a judgment is the way that one private citizen can call upon the state to use force against another citizen to vindicate her rights. Authorizing the forcible seizure of property is a serious business. It is the essence of the judicial power. Because the bankruptcy judge is not an Article III judge, she lacks the power to authorize one citizen to take property away from another. It [710]*710is just as if a janitor at the courthouse entered the judgment. He does not possess the judicial power either. If you want authorization to take someone else’s property in the federal judicial system on account of an ordinary debt, you need to get it from an Article III judge.

Baird, 86 Am. Bankr. L.J. at 5-6 (footnote omitted). Therefore, since liquidating a nondischargeable debt is not necessary to administer the bankruptcy estate, and entering judgment is an exercise of judicial power, a bankruptcy judge lacks the constitutional authority to reduce a nondis-chargeable debt to judgment.

Section 523 of the Bankruptcy Code provides the list of debts that are excepted from a debtor’s discharge in bankruptcy. 11 U.S.C. § 523. Exceptions to discharge “are to be construed strictly against the creditor and liberally in favor of the debtor.” In re Slaton, 469 B.R. 814, 819 (Bankr.W.D.Wis.2012) (Judge Utschig) (citing In re Crosswhite, 148 F.3d 879, 881 (7th Cir.1998)). The creditor bears the burden of establishing non-dischargeability by a preponderance of the evidence. Slaton, 469 B.R. at 819 (citing Grogan v. Garner, 498 U.S. 279, 287-88, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)).

1) Condon’s § 523(a)(2) claim fails.

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503 B.R. 705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/condon-oil-co-v-wood-in-re-wood-wiwb-2013.