Cordell v. Sturgeon (In re Sturgeon)

496 B.R. 215
CourtBankruptcy Appellate Panel of the Tenth Circuit
DecidedMay 14, 2013
DocketBAP No. WO-12-043; Bankruptcy No. 10-15850; Adversary No. 10-01197
StatusPublished
Cited by50 cases

This text of 496 B.R. 215 (Cordell v. Sturgeon (In re Sturgeon)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cordell v. Sturgeon (In re Sturgeon), 496 B.R. 215 (bap10 2013).

Opinion

OPINION

JACOBVITZ, Bankruptcy Judge.

The appellant, Scott Dustin Sturgeon (the “Debtor”), appeals the bankruptcy court’s judgment in favor of the appellee, Bank of Cordell (the “Bank”), on the Bank’s non-dischargeability complaint under 11 U.S.C. § 523(a)(2)(A) and (a)(2)(B). After a trial on the merits, the bankruptcy court concluded that, among other things, the Debtor engaged in a course and pattern of fraudulent activity to obtain loans and loan advances from the Bank rendering the debt in question non-dischargeable under 11 U.S.C. § 523(a)(2)(A). On appeal, the Debtor assigns error to various of the bankruptcy court’s findings of fact. As the Debtor has not shown the bankruptcy court’s decision under 11 U.S.C. § 523(a)(2)(A) to be the result of clear error, we AFFIRM the judgment.

I. FACTUAL BACKGROUND1

The Debtor is a practicing veterinarian who is also engaged in the cattle business. The Debtor conducted cattle operations in his individual name and through S & D Cattle, LLC (“S & D”), a business he owned along with his father, Dr. David Sturgeon, referred to herein as David. The Debtor, David, and the Debtor’s brother, Shane Sturgeon, all maintained commodity accounts with R.J. O’Brien, a commodities brokerage firm. The Debtor held commodity accounts in his individual name and in the name of 20/20 Cattle & Consulting, LLC (“20/20”), in which he owns a one-third interest along with David and Shane.

For several years prior to 2009, the Debtor and S & D financed their cattle operations through loans from the Bank. The Bank made loans to the Debtor and S & D to purchase cattle. The obligations to repay loan advances were secured by the cattle. To obtain funds, either the Debtor or David would identify the number of cattle to be purchased with the loan proceeds or, if the cattle had already been [219]*219purchased, the number so purchased. When the Debtor or S & D sold cattle, the check generally was made jointly payable to the Debtor and the Bank, as the lien-holder.

The non-dischargeable debt owed to the Bank by the Debtor, either as co-signer on S & D’s indebtedness or borrower, arose from the following seven loans:

Note No. Note Date Borrower & Cosigners Collateral Principal Amount Purpose 05820 06-25-08 Debtor & David All livestock among other collateral 150,000 Purchase 80 steers and 128 other cattle 65913 10-10-08 5 & D, Debtor 6 David Same as above 86,020 Purchase 130 steers 65914 10-10-08 5 & D, Debtor 6 David Same as above 86,000 Purchase 124 heifers 65915 10-10-08 5 & D, Debtor 6 David Same as above 70,000 Purchase 75 steers and 25 bulls 65933 11-06-08 5 & D, Debtor 6 David Same as above 84,000 Purchase 46 heifers and108 other cattle 65948 12-04-08 5 & D, Debtor 6 David Same as above 102,000 Purcha se 239 heifers 66957 12-29-08 5 & D, Debtor 6 David Same as above 150,000 Purchas e 22 steers and 224 heifers

In granting these loans, the Bank required the Debtor to submit an annual personal financial statement. At the Bank’s request, the Debtor submitted a personal financial statement on or before February 18, 2008.2 The Debtor opened a commodity account in his name, for the benefit of S & D, in late December 2007 or in the first half of January 2008. The financial statement did not disclose the existence of any commodity accounts owned by the Debtor, S & D, or 20/20. Since trading in commodities can create significant financial risks, the existence of such an account would be material to the Bank’s decision to extend credit to a particular borrower. The Bank was unaware of the existence of the Debtor’s commodity account until sometime after it ceased making loans or extending advances to the Debtor or S & D.

The Bank also required S & D to provide a periodic cattle inventory report (sometimes “CIR”) for the Bank to rely upon in making loans and approving loan advances. S & D provided CIRs to the Bank on or about July 16, 2008 and October 9, 2008. The Bank relied on S & D’s cattle inventories to determine whether there was sufficient equity in the cattle to grant loans to S & D, to approve loan advances, and to approve S & D’s retention of a portion of the cattle sale proceeds pledged to the Bank.

At some point prior to June, 2008, the Debtor, David, and Shane created a sham entity called the Sturgeon Partnership to market and sell cattle owned by S & D, [220]*220the Debtor, David, and Shane.3 The Debt- or executed numerous forward contracts on behalf of Sturgeon Partnership to sell cattle to Thigpen Livestock Company, Ltd. (“Thigpen”). David acted as an agent for Thigpen.4 The contracts required Thigpen to provide a $30.00 down payment to the Sturgeon Partnership for each head of cattle sold. All the cattle belonging to S & D and the Debtor sold to Thigpen under the contracts were subject to the Bank’s security interest. Thigpen made down payments of $30.00 per head by checks payable solely to the Sturgeon Partnership thereby allowing S & D, the Debtor, David and Shane to use those sale proceeds without oversight by the Bank as to the disposition of the funds. The down payment funds from the sale of S & D’s cattle were deposited in S & D’s account at the Bank, but none of the funds were paid to the Bank.

The Debtor also sold a portion of S & D’s cattle that was pledged to the Bank to Thigpen in the name of Washita Veterinary Clinic (the “Vet Clinic”), an entity owned by David and his spouse, the Debt- or’s mother.5 Payment was made directly to the Vet Clinic, and none of the funds were paid to the Bank. Neither the Debtor nor David disclosed to the Bank any material change in the way S & D did business.6

During the same year that the Sturgeon Partnership was formed, the Debtor and 20/20 suffered losses in their commodity accounts. The Debtor lost $43,777.08 and 20/20 lost $105,743.58. Because the Debt- or’s and 20/20’s commodity accounts declined in value, he was required to deposit additional funds into them or be subjected to the involuntary sale of holdings in these accounts as necessary to restore them to the required “margin” position. The Debtor had not made sufficient financial arrangements to adequately respond to the margin calls. As a result, the Debtor and S & D diverted considerable funds to these commodity accounts. The funds came from loan advances from the Bank and from sales of S & D cattle pledged to the Bank. On more than one occasion when loan advances were used to cover margin calls, David represented to the Bank that the loan advances would be used to purchase cattle.

In January, 2009, the bank hired Jason Ferguson to count S & D’s cattle pledged to the Bank and to prepare a CIR. Mr. Ferguson counted S & D’s cattle with the Debtor on January 5, 2009, and with David on January 14, 2009. Mr. Ferguson submitted the cattle inventory report to the Bank on January 22, 2009.

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Cite This Page — Counsel Stack

Bluebook (online)
496 B.R. 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cordell-v-sturgeon-in-re-sturgeon-bap10-2013.