General Electro Music, Inc. v. Messore (In re Messore)

28 B.R. 968, 1983 Bankr. LEXIS 6355
CourtDistrict Court, D. Rhode Island
DecidedApril 22, 1983
DocketBankruptcy No. 8100936; Adv. No. 820042
StatusPublished

This text of 28 B.R. 968 (General Electro Music, Inc. v. Messore (In re Messore)) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
General Electro Music, Inc. v. Messore (In re Messore), 28 B.R. 968, 1983 Bankr. LEXIS 6355 (D.R.I. 1983).

Opinion

DECISION GRANTING IN PART AND DENYING IN PART PLAINTIFF’S COMPLAINT TO DECLARE DEBT NONDISCHARGEABLE

ARTHUR N. VOTOLATO, Jr., Bankruptcy Judge.

Heard on General Flectro Music, Inc.’s (GEM) complaint objecting to the discharge of certain debts pursuant to 11 U.S.C. § 523.1

At hearings held on December 8 and 9, 1982, the following evidence was presented.2 In July 1981, the debtors, together with Ron’s brother Ken Messore, applied for an organ franchise from GEM. It was contemplated and represented to GEM that Ron Messore was to handle the business affairs of the proposed venture, and that Ken would be in charge of sales. This arose as a specific topic of discussion because the parties were apparently in agreement that the enterprise would be viable only if Ron’s personal credit and managerial expertise were present to complement Ken’s sales ability. It is also uncontroverted that Ken was regarded as a super salesman, but that his credit rating and managerial skills were [970]*970severely lacking. After Ron and Leilani filled out and signed all the necessary papers, including a personal financial statement and a personal guaranty,3 GEM began delivering organs to Messore Organs, Inc. GEM extended a $25,000 line of credit to the corporation, and as each organ was sold, the corporation was required to remit the amount due to GEM on the sale. (Plaintiff’s Exhibit B)

Beginning in January 1981, the corporation (whose bookkeeping was handled by Leilani Messore) stopped remitting proceeds to GEM, and by March 1981 the amount overdue on organs sold was approximately $9800. In April 1981, Ron discovered the default4 and immediately contacted John Li, GEM’s credit manager. John Li and Ron Messore attempted to establish a plan to cure the default and salvage the operation, but this was unsuccessful. In October 1981, to reduce expenses, the Messores vacated the business location and moved the organ inventory to their Cranston residence. Sales continued to decline, and on November 23, 1981 the debtors filed a Chapter 7 petition. GEM made arrangements to pick up the unsold organs, which were still stored in the debtors’ Cranston house,5 but on the day before GEM’s scheduled pick-up, the organs were stolen.

GEM filed the instant complaint objecting to the dischargeability of its debt resulting from the unremitted proceeds of sales, and for the additional loss sustained as a result of the theft of the remaining organs. GEM argues that $9800 due from the sale of organs, and that $14,8006 in damages sustained as the result of the theft of unsold organs, all of which is personally guaranteed by the debtors (up to $25,000), are nondischargeable because: (1) GEM extended credit based upon the debtors’ personal financial statement, which was materially false and which was furnished by the debtors with the intent to deceive, 11 U.S.C. § 523(a)(2)(A); (2) the debtors obtained credit based on the false representation that Ron Messore would handle the management end of the business, 11 U.S.C. § 523(a)(2)(A); (3) the Messores received an extension of credit based on the false representation that there was sufficient equity in their real estate to cover the amount owed in the summer of 1981; and (4) the debt was for defalcation while acting in a fiduciary capacity, 11 U.S.C. § 523(a)(4).

For purposes of clarity, that portion of the debt owed on account of organs sold, and the amount owed on the stolen collateral will be treated separately.

THE DEBT DUE ON ORGANS SOLD

The evidence is contradictory concerning the date and/or location of discussions between John Li and Ron Messore, but even accepting the debtors’ version, the decision to grant the franchise was made in reliance upon and with the clear understanding that Ken would handle only sales, and that Ron would handle all other business. This finding is based on Ron Mes-sore’s knowledge that Ken had previously been turned down by GEM for a dealership, and that he (Ron) had discussed and stressed his own administrative abilities with John Li and/or his agent at their first meeting. John Li testified, and we conclude, that the $25,000 credit extension for the dealership was granted in reliance on Ron’s previous business experience, his as-[971]*971suranee that he would personally oversee the day to day affairs of the business, and his personal guaranty. (Plaintiff’s Exhibit A). Also, the decision to grant the franchise was not made until after GEM received a personal statement and guaranty from Ron Messore.

The record also discloses, and we conclude therefrom, that Ron never really intended to become involved with the operation of the organ dealership. Both Ron and Leilani admitted that Ron had other full-time employment, and that for him the corporation was “merely an investment.” Ron admitted that his only involvement with the business (prior to April 1981) was to move a few organs in the evening. We find that Ron’s representation that he would handle business matters was intentionally made in order to obtain the franchise, at a time when Ron knew he would have little or no involvement in the business, that the credit line was extended based on said representation, and that the Plaintiff’s reliance in this respect was reasonable.

11 U.S.C. § 523(a)(2)(A) provides that: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt—
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(2) for obtaining money, property, services, or an extension, renewal, or refinance of credit, by—
(A) false pretenses, a false representation, or actual fraud....

For the reasons stated, the $9800 debt for unremitted proceeds of organs sold is determined to be nondischargeable.7 11 U.S.C. § 523(a)(2)(A). See C.O.T.C.O. Gasoline, Inc. v. Jenes (In re Jenes), 18 B.R. 405 (Bkrtcy.S.D.Fla.1981) (to be excepted from discharge action by debtor must be intentional); Cook v. Cook (In re Cook), 13 B.R. 189 (Bkrtcy.S.D.Fla.1981) (representations must be made knowingly).

LIABILITY FOR STOLEN INVENTORY

The value of the inventory on hand when the debtors filed their Chapter 7 petition constitutes the remainder ($14,800) of the $24,600 debt owed to the Plaintiff. Based on a review of the entire record, the Court concludes that GEM has failed to establish that the portion of the debt attributed to the theft of the organs should be declared nondischargeable. See National Agents Service Co., Inc. v. Duiser (In re Duiser), 8 B.R. 397, 400 (Bkrtcy.W.D.Va.1981) (burden of proof on party seeking to hold debt non-dischargeable).

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Bluebook (online)
28 B.R. 968, 1983 Bankr. LEXIS 6355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-electro-music-inc-v-messore-in-re-messore-rid-1983.