Follo v. Morency

507 B.R. 421, 2014 U.S. Dist. LEXIS 36846, 2014 WL 1046874
CourtDistrict Court, D. Massachusetts
DecidedMarch 19, 2014
DocketCivil Action No. 13-11217-WGY
StatusPublished
Cited by4 cases

This text of 507 B.R. 421 (Follo v. Morency) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Follo v. Morency, 507 B.R. 421, 2014 U.S. Dist. LEXIS 36846, 2014 WL 1046874 (D. Mass. 2014).

Opinion

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

Carl Folio, Folio Hospitality, Inc., and Carpa Real Estate, LLC (collectively, “Folio”) appeal from a judgment of the [424]*424Bankruptcy Court for the District of Massachusetts (“Bankruptcy Court”), which held that Susan Morency’s (“Moreney”) judgment debt was not excepted from discharge pursuant to either 11 U.S.C. § 523(a)(2)(A) (“Section 523(a)(2)(A)”) or 11 U.S.C. § 523(a)(2)(B) (“Section 523(a)(2)(B)”).

These proceedings have their origins in a real estate transaction fraudulently induced by Moreney, a Vermont judgment subsequently finding Moreney liable for common-law fraud, and this bankruptcy filing. The crux of this appeal is whether the Vermont judgment can be used to establish the elements necessary to sustain a non-discharge of debt under either Section 523(a)(2)(A) or Section 523(a)(2)(B).

In the proceedings before the Bankruptcy Court, Folio alleged that the judgment of the Vermont Supreme Court (“the Vermont Judgment”) precluded the Bankruptcy Court from reconsidering the issues necessary to establish non-discharge under either Section 523(a)(2)(A) or Section 523(a)(2)(B). The Bankruptcy Court disagreed, concluding that the Vermont Judgment did not have preclusive effect and dismissing Folio’s claim. On appeal Folio argues that the Bankruptcy Court erred when it ruled that:

(i) ... [Folio’s] claim is not excepted from discharge; (ii) ... the determinations of the Vermont Supreme Court did not fulfill the requirements of 11 U.S.C. [sections] 523(a)(2)(B) and/or (a)(2)(A); and (iii) ... when it found that Folio is not entitled to judgment under 11 U.S.C. [sections] 523(a)(2)(B) and/or (a)(2)(A) on the basis of the issue preclusive effect of the Vermont determinations and judgment.

Br. Appellants Carl Folio, Folio Hospitality, Inc. & Carpa Real Estate, LLC (“Folio Brief’) 2, ECF No. 12.

A. Procedural Posture

On April 5, 2010, Moreney filed a petition of relief as per chapter 7 of the Bankruptcy Code, In re Morency, No. 10-13666-FJB, 2013 WL 1342485, at *1 (Bankr.D.Mass. Apr. 2, 2013) (Bailey, Bankr. J.), and on May 14, 2010, Folio filed an adversarial complaint objecting to the discharge of its debt, Bankr.Docket, Adversary Case 10-01122 (“Bankr. Docket”) No. 1, ECF No. 3. This matter proceeded before the Bankruptcy Court, which on March 2, 2013, entered a judgment ordering the dismissal of Folio’s complaint and the discharge of Morency’s judgment debt. Bankr.Docket No. 92. Subsequently, on May 20, 2013, Folio filed a notice of appeal, electing to have the case heard by the United States District Court for the District of Massachusetts, Election Appellants To Have Appeal Heard U.S. District Ct., ECF No. 2, and, on the same date, the appeal was assigned to this session of the Court. Elec. Notice, May 20, 2013, ECF No. 5. Folio filed the appellant’s brief on June 28, 2013. Folio Brief. On July 11, Moreney filed the appellee’s brief, Br. Ap-pellee Susan C. Moreney (“Moreney Brief’), ECF No. 13, and Folio filed a reply on July 25, Reply Br. Appellants Carl Folio, Folio Hospitality, Inc. & Carpa Real Estate, LLC (“Folio Reply”), ECF No. 14.

B. Factual Summary

The facts of this case have been well traversed in prior decisions and, with this in mind, the Court here provides but a summary of those facts relevant to the proceeding at hand.

In 2008 Folio purchased an inn (“the Inn”) and an adjacent cottage from Moren-ey and Paul Florindo (“Florindo”). Mor-eney, 2013 WL 1342485, at *3. During the negotiations, Folio was presented with a number of documents, including informa[425]*425tion regarding the financial status of the Inn, tax returns and room occupancy information, upon which it relied. See Follo v. Florindo, 185 Vt. 390, 395, 410, 970 A.2d 1230 (2009). Following Folio’s purchase it became apparent that this information was incorrect. Id. at 396, 970 A.2d 1230. Consequently, Folio commenced proceedings in the Windham (Vermont) Superior Court against Morency, Florindo, and others for a series of offences, including common law fraud and violations of Vermont’s Consumer Fraud Act. Id. at 394, 396, 970 A.2d 1230. Although punitive damages are appropriate in Vermont where there is “an intentional act with a specific intent to defraud the buyer,” the Vermont Superior Court ruled punitive damages were not proper as matter of law and accordingly did not put this issue to the jury. Id. at 413, 970 A.2d 1230. The jury found Mor-ency and Florindo liable on both the aforementioned claims and assessed compensatory damages of $645,000. See id. at 397-98, 970 A.2d 1230. The trial judge ordered a remittitur reducing these damages to $295,000. Id. at 398, 970 A.2d 1230.

Both parties appealed. The Vermont Supreme Court affirmed, but reversed the Superior Court’s exclusion of punitive damages as matter of law. Id. at 394, 970 A.2d 1230.

Following the decision of the Vermont Supreme Court, but before the quantum of punitive damages owed had been determined, Morency filed for bankruptcy. See In re Morency, 2013 WL 1342485, at *4.

II. JURISDICTION

This Court has jurisdiction to hear appeals from “final judgments, orders, and decrees” of the bankruptcy court. 28 U.S.C. § 158(a)(1). Here the Bankruptcy Court has entered a final decision on the merits, see In re Morency, 2013 WL 1342485 at *13, and thus this Court has jurisdiction to consider the appeal.

III. ANALYSIS

A. Standard of Review

A district court reviewing the decisions of a bankruptcy court reviews all legal conclusions under a de novo standard, and all factual findings for clear error. Palmacci v. Umpierrez, 121 F.3d 781, 785 (1st Cir.1997).

B. Scope of the Exception to Discharge

In all bankruptcy proceedings there is a strong presumption in favor of discharge. See Local Loan Co. v. Hunt, 292 U.S. 234, 244-45, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). The Bankruptcy Code is intended to provide “honest but unfortunate debtor[s],” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991), with a fresh start — “a new opportunity in life ... unhampered by the pressure and discouragement of preexisting debt.” In re Spigel, 260 F.3d 27, 31-32 (1st Cir.2001) (quoting Hunt, 292 U.S. at 244, 54 S.Ct. 695); see, e.g. In re O’Donnell, 728 F.3d at 42.

Nonetheless, section 523(a)(2) of the Bankruptcy Code provides two complementary but distinct exceptions to discharge for some debts incurred as a result of the debtor’s fraudulent conduct. See 11 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
507 B.R. 421, 2014 U.S. Dist. LEXIS 36846, 2014 WL 1046874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/follo-v-morency-mad-2014.