Germain Lincoln Mercury of Columbus, Inc. v. Begun (In Re Begun)

136 B.R. 490, 1992 WL 20877
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedJanuary 29, 1992
DocketBankruptcy No. 2-90-04369, Adv. No. 2-90-0247
StatusPublished
Cited by16 cases

This text of 136 B.R. 490 (Germain Lincoln Mercury of Columbus, Inc. v. Begun (In Re Begun)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Germain Lincoln Mercury of Columbus, Inc. v. Begun (In Re Begun), 136 B.R. 490, 1992 WL 20877 (Ohio 1992).

Opinion

OPINION AND ORDER ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT

R. GUY COLE, Jr., Bankruptcy Judge.

I. Findings of Fact

Germain Lincoln Mercury of Columbus, Inc. (“Germain”) commenced this adversary proceeding against the debtor, Jeffrey S. Begun (the “Debtor”), demanding that *492 judgment be entered in Germain’s favor and against the Debtor in the amount of $19,660. Germain also requested a declaration that “Begun’s indebtedness to [Ger-main] is excepted from discharge pursuant to 11 U.S.C. § 523(a)(2)(A).” Complaint, para. 19B.

The Debtor answered the Complaint and stated two counterclaims against Germain. First, the Debtor alleged that Germain violated the automatic stay imposed by 11 U.S.C. § 362(a) by taking the Debtor’s oral deposition after the bankruptcy petition was filed. Actual damages, including costs and attorneys’ fees, and punitive damages were requested. Second, the Debtor alleged that Germain violated Fed.R.Bankr.P. (“Bankruptcy Rule”) 9011 by not conducting a reasonable inquiry before filing the Complaint in order to determine that it was “well grounded in fact and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” Counterclaim, para. 32. A Motion for Summary Judgment on the counterclaims was filed by Germain on November 15, 1991. An Order Granting Summary Judgment was entered on January 8, 1992, the date of the trial of this proceeding.

The record discloses that Scioto Valley Dealership (“SVD”), an Ohio corporation, was engaged in the business of acquiring and selling used motor vehicles. The Debt- or, owner of 50 percent of SVD’s common shares, ran the company’s daily operations. Karl Dernier, owner of the other 50 percent of SVD’s common shares, served as SVD’s “financial backing.” Transcript, p. 101. SVD had one or two other employees, including Larry Chizek. SVD ceased doing business in or about September, 1990.

In late 1988 or early 1989, SVD and Germain entered into a verbal arrangement pursuant to which SVD would purchase used motor vehicles wholesale from Ger-main for retail resale. SVD was to pay Germain for purchased vehicles with checks drawn on its business account at the Fifth Third Bank of Columbus (“Fifth Third”). However, several checks issued to Germain by SVD were dishonored by Fifth Third due to insufficient funds in SVD’s account. These checks were eventually honored. Transcript, p. 18. Ger-main nevertheless insisted that any subsequent purchases by SVD be “on a cash basis,” meaning Germain would have to be paid by cashier’s check, money order, or “something guaranteed.” Id.

After learning that Germain would accept only “cash” from SVD, the Debtor approached Germain’s controller, Sandra Flanagan, about SVD purchasing vehicles pursuant to a “sight draft arrangement.” Chizek had initially suggested use of such an arrangement to Begun. Transcript, pp. 156-57. According to Germain, the Debtor made several express and implied misrepresentations regarding this arrangement. The most significant allegation is that the Debtor informed Flanagan that SVD had obtained a line of credit from Fifth Third which would be sufficient to cover purchases of motor vehicles. Germain contends that in reality SVD’s line of credit was too low to cover such purchases.

It is undisputed that SVD had a line of credit through Fifth Third from the time SVD commenced business until the time it ceased operations. The Debtor testified that the line of credit had a limit of $20,-000; Dernier estimated the limit to be $25,-000 or $30,000. Based on the strength of the Debtor’s recollection, and Demler’s uncertainty as to the exact amount, the Court determines the amount of the line of credit that SVD had at Fifth Third to be $20,000. At the time the sight draft arrangement was entered into, this $20,000 line of credit at Fifth Third was the only financing available to SVD from Fifth Third.

Germain also alleges that the Debtor represented that the arrangement “would operate like a floor plan.” Transcript, pp. 20-21. Germain understood that it would “sign off” on a vehicle’s certificate of title, insert the title inside the draft (which was in the form of an envelope), and deposit the draft into its checking account at BancOhio National Bank. BancOhio, in turn, was to forward the draft and title to Fifth Third for payment. Transcript, p. 19. Fifth Third then was to release the title to SVD *493 upon acceptance of the sight draft by SVD. Germain understood that it would be paid upon acceptance of the draft; its account at BancOhio was to be credited within 24 to 48 hours after receipt of the draft by Fifth Third. Id. Flanagan testified that she is unaware of any floor plan arrangement where the seller is not paid for a vehicle until the dealer sells it. According to Flanagan, Germain was not interested in an arrangement in which Germain would be paid four to eight weeks after delivery of the sight draft; Germain expected immediate payment and crediting of its account. Transcript, pp. 24-25.

Although the arrangement between Ger-main and SVD was not reduced to writing, Flanagan testified that she contacted SVD’s banker at Fifth Third, Bob Anderson, whose name was given to her by the Debtor in order to verify the line of credit and sight draft arrangement. Anderson assured Flanagan that “everything was in place.” Transcript, p. 23. However, there is no evidence that Anderson discussed a sight draft or floor plan financing arrangement with Flanagan. Moreover, Anderson denies speaking with Flanagan about SVD’s line of credit or about a sight draft arrangement.

Pursuant to this arrangement, Germain first began using sight drafts in late April 1989. The evidence demonstrates that after Germain deposited a sight draft and title into its BancOhio account, those documents were delivered to Fifth Third. Fifth Third, upon the receipt of the draft and title, would release the title to SVD. Thus, the title would be in SVD’s possession prior to SVD’s formal acceptance of the draft and prior to paying Germain. In other words, contrary to Germain’s understanding of how the sight draft arrangement was to work, Fifth Third was releasing titles to vehicles prior to accepting the sight drafts and paying Germain. Oftentimes, as a result, Germain would not be paid, and its account would not be credited, for up to eight weeks while Fifth Third awaited the deposit by SVD of sufficient funds into its account to pay the sight draft. During this often eight-week period, SVÍ) was in possession of certificates of title sent to Fifth Third by BancOhio. It is unclear whether Germain would deliver the actual vehicles prior to payment.

Germain alleges that it has not been paid for two of the seventeen vehicles sold to SVD pursuant to the sight draft arrangement. Germain concedes it was paid for the other fifteen, although often not within the time period it believes it should have been paid. The two vehicles for which Germain has not been paid are a 1985 Ford Crown Victoria and a 1989 Buick LeSabre, for a total amount of $19,660. These vehicles were bought by SVD on or about May 26, 1989.

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Cite This Page — Counsel Stack

Bluebook (online)
136 B.R. 490, 1992 WL 20877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/germain-lincoln-mercury-of-columbus-inc-v-begun-in-re-begun-ohsb-1992.