Fogg ex rel. Estate of Brown v. Pearl (In re Pearl)

502 B.R. 429, 2013 WL 6321521, 2013 Bankr. LEXIS 5110, 58 Bankr. Ct. Dec. (CRR) 267
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedDecember 5, 2013
DocketBankruptcy No. 12-11372 ELF; Adversary No. 12-0382
StatusPublished
Cited by18 cases

This text of 502 B.R. 429 (Fogg ex rel. Estate of Brown v. Pearl (In re Pearl)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fogg ex rel. Estate of Brown v. Pearl (In re Pearl), 502 B.R. 429, 2013 WL 6321521, 2013 Bankr. LEXIS 5110, 58 Bankr. Ct. Dec. (CRR) 267 (Pa. 2013).

Opinion

OPINION

ERIC L. FRANK, Chief Judge.

I. INTRODUCTION

Earlier this year, the Supreme Court issued its decision in Bullock v. BankChampaign, N.A., — U.S. -, 133 S.Ct. 1754, 185 L.Ed.2d 922 (2013), resolving an issue of bankruptcy law that divided the lower courts for close to 100 years. That issue was whether 11 U.S.C. § 523(a)(4), which provides that a debt “for ... defalcation while acting in a fiduciary capacity” is nondischargeable in a chapter 7 case, requires any level of scienter (and if so, what degree of scienter).

In Bullock, the Court held that “defalcation” under § 523(a)(4) requires a heightened level of scienter. For a debt to be nondischargeable under § 523(a)(4), the Debtor’s conduct must either (1) “involve bad faith, moral turpitude, or other immoral conduct;” or (2) must have been “reckless,” i.e., involving a conscious disregard or a willful blindness to a substantial and unjustifiable risk that the conduct violated the debtor’s fiduciary duty. 133 S.Ct. at 1757.

This adversary proceeding is the first nondischargeability determination in this court since Bullock was decided. It arises from a family dispute regarding the management of the guardianship estate of an incapacitated 60 year old woman, Alice Brown (“Ms. Brown”). The plaintiff is David Fogg (“the Plaintiff’), who is Ms. Brown’s brother, and her current, court-appointed guardian. The Defendant is Lorie Pearl (“the Debtor”), the debtor in this bankruptcy case. The Debtor is Ms. Brown’s daughter (and the Plaintiffs niece). The Debtor served as her mother’s guardian before the state court removed her and appointed the Plaintiff as her replacement.

The Plaintiff claims that, during the period of the Debtor’s guardianship, the Debtor breached her fiduciary duties and that the breach constituted a “defalcation” under 11 U.S.C. § 523(a)(4), rendering the resulting debt nondischargeable. The debt at issue consists of a $58,396.42 “surcharge” imposed by the state court (“the Surcharge”), plus claims for an additional surcharge that had not yet been requested by the Plaintiff prior to the Debtor’s bankruptcy filing (“the Claimed Additional Surcharge”).

Based on the evidence presented at trial of this adversary proceeding, I conclude that the Plaintiff has proven that the debts arising from the losses suffered by Ms. Brown’s guardianship estate during the Debtor’s tenure as guardian — both the debt already determined by the state court [433]*433and the claimed debt pending when the Debtor filed this bankruptcy case — together constitute a debt for defalcation that is nondischargeable under 11 U.S.C. § 523(a)(4).1

II. PROCEDURAL HISTORY

On February 16, 2012, the Debtor filed a chapter 7 bankruptcy petition. (N.T. at 61-62). On May 11, 2011, the Plaintiff initiated this adversary proceeding by filing a complaint pursuant to 11 U.S.C. §§ 523(a)(4) and (6) seeking a determination that the Surcharge and the Claimed Additional Surcharge are excepted from the Debtor’s discharge. The Debtor’s chapter 7 discharge was granted on November 7, 2013.

Trial of this adversary proceeding was held and concluded on February 22, 2013. Three (3) witnesses testified: (1) the Debt- or, (2) the Plaintiff, and (3) Richard Ma-gee, Jr. (the Plaintiffs counsel in the state court guardianship proceedings).

After the trial, I placed the matter in suspense pending the outcome of the U.S. Supreme Court’s decision in Bullock v. Bank-Champaign, N.A. On May 20, 2013, shortly after the Supreme Court’s announcement of its decision in Bullock, I entered an order removing this proceeding from the suspense docket and establishing a briefing schedule. Briefing was completed on June 19, 2013.

III. FINDINGS OF FACT

I make the following findings of fact based upon the testimonial and documentary evidence presented at trial and the undisputed facts set forth in the parties’ Joint Pretrial Statement.

The Parties

1. The Debtor is Ms. Brown’s daughter. (Joint Pretrial Statement ¶ 6).

2. The Plaintiff is Ms. Brown’s brother and the Debtor’s uncle. (Id. ¶ 7).

Pearl’s Appointment as Guardian of Ms. Brown’s Estate

3. Ms. Brown was born on November 16,1946. (Id. ¶ 5)

4. In the fall of 2006, the Debtor came to learn that Ms. Brown’s mental health was deteriorating. (Notes of Testimony (“N.T.”) at 83).

5. The Debtor also came to learn that Ms. Brown owed approximately $50,000.00 in back taxes and that her residence, 124 Rodney Circle in Bryn Mawr, Pennsylvania (“the Rodney Circle Property”) had been sold in a tax sale for $130,000.00. (Id. at 83, 85).

6. In the fall of 2006, the Rodney Circle Property was in very poor condition. It was moldy and had no heat, air conditioning or running water. (Id. at 83).

7. At some point after discovering the existence of her mother’s housing crisis, the Debtor met with family members to discuss the situation. Those family members included the Plaintiff, the Plaintiffs spouse, Ms. Brown’s sister (the Debtor’s aunt) and the Debtor’s brother.2 (Id. at 84).

[434]*4348. At the meeting, the family agreed that the Debtor would seek appointment as her mother’s guardian and that they (the family) would try to save the house. (Id. at 84-85).

9. On November 27, 2006, the Debtor filed a Petition for Adjudication of Incapacity and for an Appointment of Plenary Guardian of the Person and Estate for Alice Brown in the Delaware County Court of Common Pleas of Pennsylvania (“the C.P. Court”). (Ex. Fogg-1).

10. The Debtor’s aunt paid the attorney’s fees for the petition to set aside the sale. (N.T. at 87).

11. The Debtor paid the attorney’s fees for the petition to appoint her as guardian. (Id.).

12. On January 22, 2007, the C.P. Court found Alice Brown to be an incapacitated person, who could not manage her personal or financial affairs and appointed the Debtor as the plenary guardian of Alice Brown’s person and her estate (“the Estate”). (Ex. Fogg-2).

18. Upon her appointment, the Debtor received a description from the Orphan’s Court of the rules and duties for conducting the guardianship (“the Orphan’s Court Rules”). (N.T. at 63; Ex. Fogg-19 at 1).

14.At the time of the Debtor’s appointment as guardian, the Orphan’s Court Rules provided, in relevant part, that:

a. the guardian of the Estate must manage the assets using the “standard of reasonable prudence” and that “risky investments are not permitted, unless specifically authorized by the Court.”
b. court permission is required before selling real estate or using principal;
c.

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Cite This Page — Counsel Stack

Bluebook (online)
502 B.R. 429, 2013 WL 6321521, 2013 Bankr. LEXIS 5110, 58 Bankr. Ct. Dec. (CRR) 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fogg-ex-rel-estate-of-brown-v-pearl-in-re-pearl-paeb-2013.