GDO Investments, Inc. v. Glasgow (In re Glasgow)

370 B.R. 362, 2007 Bankr. LEXIS 2015
CourtUnited States Bankruptcy Court, D. Colorado
DecidedJune 7, 2007
DocketBankruptcy No. 05-44131-SSB; Adversary No. 06-01334-SBB
StatusPublished
Cited by6 cases

This text of 370 B.R. 362 (GDO Investments, Inc. v. Glasgow (In re Glasgow)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
GDO Investments, Inc. v. Glasgow (In re Glasgow), 370 B.R. 362, 2007 Bankr. LEXIS 2015 (Colo. 2007).

Opinion

MEMORANDUM OPINION AND ORDER DENYING IN PART, AND GRANTING IN PART, DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

SIDNEY B. BROOKS, Bankruptcy Judge.

THIS MATTER comes before the Court on the Debtor-Defendants’ Motion for Partial Summary Judgment filed on March 13, 2007 (Docket # 53), Creditor-Plaintiffs Response filed on April 12, 2007 (Docket # 64), and Defendants’ Reply filed on April [366]*36620, 2007 (Docket # 67). The Court, having reviewed the file and being advised in the matter, makes the following findings of fact, conclusions of law and Order.

The Defendants seek an order granting Partial Summary Judgment on the first two of the three claims for relief in the Plaintiffs Amended Complaint. Specifically, the Defendants seek Summary Judgment on Plaintiffs first claim for relief brought under 11 U.S.C. § 523(a)(2)(A) for fraud and the second claim for relief under 11 U.S.C. § 523(a)(2)(B) for false financial statements. The remaining claim for relief is under 11 U.S.C. § 523(a)(6) for conversion.

Generally, this case involves a series of transactions and multiple communications, over a period of eight years, between the Plaintiff, which was selling, leasing and financing day care centers to the Defendants, who were in turn buying, leasing and managing the centers. All three claims relate primarily to two promissory notes entered into by the Defendants’ business, Ridgewood Day School Child Care Center, Inc., and the Defendants’ personal guarantees and security agreements related to those notes.

I.Standard for Summary Judgment

Summary judgment is to be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.1 The moving party bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.2 This Court will review the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmov-ing party — here the Plaintiff.3

II. Material Facts that Exist Without Substantial Controversy

In accordance with Fed.R.Civ.P. 56(d), if summary judgment is not granted upon the whole case or for all the relief asked, this Court is to “if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted.” The parties appear to agree on the following facts:

1. Valerie and Chad Glasgow (“Defendants”) were the sole owners and officers of Ridgewood Day School Child Care Center, Inc. (“Ridgewood”), which operated two day care centers in Fort Collins, Colorado, from 1998 through 2005.4 One day care center was located on Avondale Court (the “Avondale Center”), the other was located on Prospect Road (the “Prospect Center”), collectively, the “Day Care Centers.” 5
2. Gene Oster and his wife, Diane, are the sole owners of GDO Investments, Inc. (“Plaintiff’).6
3. On November 26, 1997, Plaintiff and Ridgewood entered into a land installment contract (unconditionally guaranteed by the Defendants), in which Ridgewood was
[367]*367to purchase the Prospect Center by December 2002.7
4. On February 11, 1998, Ridgewood entered into a five-year lease whereby Ridgewood leased the Avondale Center from the Plaintiff. Ridgewood also signed a Promissory Note for the benefit of Plaintiff in the amount of $150,000, which was amended on March 31, 1998, to increase the principal amount to $180,000 (the “1998 Note”). The Avondale Lease and the Promissory Note were secured by personal guarantees from the Defendants to Plaintiff and a security agreement from Ridgewood pledging all of its accounts receivable/general intangibles, equipment, fixtures, inventory, and proceeds of collateral.8
5. On February 24, 2002, Gene Oster sent a letter to Valerie Glasgow regarding Ms. Glasgow’s request for permission to sign a lease agreement for a potential day care center at the Rigden Farm subdivision. In that letter, Mr. Oster states that he has “been advised that before such approval should be granted by GDO Investments, LLC, that a review of your financial statements is needed.” Therefore, Mr. Oster requested financials (personal and business) for the years 1999 through 2001.9
6. On April 29, 2002, Gene Oster sent another letter to Valerie Glasgow regarding Ridgewood’s desire to open another day care center. Mr. Oster again requested financial information, including monthly balance sheets and profit and loss statements for both Day Care Centers and documents showing the financing or loan commitment.10
7. The Defendants and Ridgewood did not provide financial information in response to Mr. Oster’s letters dated February 24, 2002 and April 29, 2002, and did not proceed with the opening of the new day care center.11
8. In December 2002, Ridgewood stopped making payments on the 1998 Note.12
9. In order to be able to purchase the real estate for the Day Care Centers, on June 23, 2003, Ridgewood and newly formed entities owned by the Defendants signed a new Promissory Note for the benefit of Plaintiff in the amount of $165,000 (the “2003 Note”). The 2003 Note was secured by a personal guaranty from Defendants and a security agreement issued by Ridgewood, Ridgewood Day School and Child Care Center-Avondale, Inc., Ridgewood Day School & Child Care Center and Ridgewood Day School and Child Care Center-Prospect, Inc., pledging all of their accounts receivable/general intangibles, equipment, fixtures, inventory, and proceeds of collateral as security for the payment of the 1998 Note and the 2003 Note. That same day Ridgewood and Plaintiff also extended the 1998 Note.13
10. On July 9, 2003, “Glasgow Investments — Prospect LLC” purchased the [368]*368Prospect Center and “Glasgow Investments — Avondale LLC” purchased the Avondale Center.
11.

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Bluebook (online)
370 B.R. 362, 2007 Bankr. LEXIS 2015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gdo-investments-inc-v-glasgow-in-re-glasgow-cob-2007.