Coston v. Bank of Malvern (In Re Coston)

153 F.2d 257
Court of Appeals for the Fifth Circuit·Decided May 19, 1993·No. 92-4399·Published

Opinion

PER CURIAM:

We have taken this case en banc for the sole purpose of deciding whether the “reasonableness” of a creditor’s reliance under 11 U.S.C. § 523(a)(2)(B) is an issue of law subject to de novo review on appeal or a question of fact to be reviewed under the clearly erroneous standard. Today we hold that, for purposes of section 523(a)(2)(B), the reasonableness of a creditor’s reliance is a question of fact, which is reviewable only for clear error. In so doing, we overrule our opinion in In re Jordan, 927 F.2d 221 (5th Cir.1991), to the extent it held that reasonableness of reliance is a conclusion of law.

I.

In June 1987, Rodney and Billie Coston (the Costons) applied to the Bank of Mal-vern (the Bank), which is located in Mal-vern, Arkansas, for a $175,000 loan. To obtain the loan, the Costons were required to submit a joint financial statement to the Bank. On that statement, Rodney represented that his account in his employer’s retirement plan was worth $1.2 million (which it was) and was readily convertible into cash (which it was not). Rodney repeated these representations at several subsequent meetings with bank officials. Relying on these representations, the Bank decided to make the $175,000 loan to the Costons, who in turn executed a note in favor of the Bank.

About a year and a half later, in January 1989, the Costons filed a petition for bankruptcy in the Eastern District of Texas. 1 The Bank thereafter objected to the Co-ston’s discharge from the $175,000 note, arguing that the debt was not dischargea-ble under 11 U.S.C. § 523(a)(2)(B). The bankruptcy court agreed. In particular, the bankruptcy court determined that (1) the Costons had submitted a materially false written statement to the Bank, (2) the statement concerned the Costons’ financial condition, (3) the Costons intended to deceive the Bank, and (4) the Bank reasonably relied on the statement. The bankruptcy court also rejected the Costons’ argument that the Bank’s objection to discharge was untimely.

On appeal to the district court, the Co-stons argued that the bankruptcy court erred in finding that the Bank timely objected to their discharge and that the Bank reasonably relied on their financial statement. The district court rejected these arguments and affirmed the bankruptcy court’s determination that the $175,000 note was non-dischargeable. The Costons then appealed to this court.

The panel that originally decided this appeal reversed the district court’s decision. See In re Coston, 987 F.2d 1096 (5th Cir.1992). The panel agreed with the bankruptcy and district courts that the Bank’s motion for denial of discharge was timely. With respect to the bankruptcy court’s determination that the Bank had reasonably relied on the Coston’s materially false financial statement, however, the panel dutifully applied the de novo standard of review announced in In re Jordan. And, in reviewing the bankruptcy court’s reasonable reliance determination de novo, the panel concluded that, although it was a close question, the Bank’s “reliance on the [Costons’] statement without so much as *260 making a single telephone call to verify liquidity simply was not reasonable.” The panel therefore held as a matter of law that the $175,000 note was subject to discharge.

II.

Because our policy of reviewing de novo reasonableness of reliance determinations under section 523(a)(2)(B) is in conflict with the policy of other circuits, we decided to rehear this case en banc, thereby vacating the panel opinion. Specifically, we now consider whether, despite our statement in In re Jordan to the contrary, a bankruptcy court’s determination regarding the reasonableness of a creditor’s reliance under section 523(a)(2)(B) is factual in nature and therefore insulated by the clearly erroneous standard of review. 2 For the following reasons, we hold that it is.

A.

First, our statement in In re Jordan, that “[t]he reasonableness of reliance is a conclusion of law,” 927 F.2d at 227, appears to have been unnecessary. After all, we ultimately agreed with the bankruptcy court’s determination that the creditor had reasonably relied on the financial documents submitted by the debtors. In hindsight we are persuaded that our statement was not necessary to the decision to affirm the bankruptcy court’s determination that the specific debt involved was non-dis-chargeable under section 523(a)(2)(B).

B.

In addition, since our decision in In re Jordan, it has become clear that our policy of reviewing de novo the bankruptcy court’s reasonableness of reliance determination is in conflict with the rule in other circuits. Most recently, in In re Woolum, 979 F.2d 71 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1645, 123 L.Ed.2d 267 (1993), the Sixth Circuit joined the majority of circuits that have considered the issue and rejected our de novo approach. It explicitly held that “[t]he district court committed reversible error in determining that reasonable reliance by a lender [under section 523(a)(2)(B) ] is a mixed question of law and fact, and then reviewing the bankruptcy court’s decision under a de novo standard.” Id. at 75. The Sixth Circuit further noted:

Our view of the matter is in accord with the holdings of the Courts of Appeals for the Seventh, Ninth and Tenth Circuits. See Matter of Bonnett, 895 F.2d 1155, 1157 (7th Cir.1989); In re Lansford, 822 F.2d 902, 904 (9th Cir.1987); In re Watson, 958 F.2d 977, 978 (10th Cir.1992). We decline to follow the holding of the Court of Appeals for the Fifth Circuit in Matter of Jordan, 927 F.2d 221, 225 (1991), where that court found that reasonableness of reliance was a conclusion of law subject to de novo review.

Id. at 76; see also In re Collins, 946 F.2d 815

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