Gosney v. Law (In Re Gosney)

205 B.R. 418, 37 Collier Bankr. Cas. 2d 1094, 97 Cal. Daily Op. Serv. 2457, 1996 Bankr. LEXIS 1818, 1996 WL 790414
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedNovember 26, 1996
DocketBAP No. SC-95-1978-AsJO, Bankruptcy No. 94-03081-M7, Adv. No. 94-90368-M7
StatusPublished
Cited by13 cases

This text of 205 B.R. 418 (Gosney v. Law (In Re Gosney)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gosney v. Law (In Re Gosney), 205 B.R. 418, 37 Collier Bankr. Cas. 2d 1094, 97 Cal. Daily Op. Serv. 2457, 1996 Bankr. LEXIS 1818, 1996 WL 790414 (bap9 1996).

Opinion

OPINION

ASHLAND, Bankruptcy Judge:

STATEMENT OF FACTS

The debtors, Jack and Colleen Gosney, were social acquaintances and business partners of Richard Riel, a mortgage broker. At all relevant times herein, debtors and Riel jointly owned two investment properties.

In September 1990, debtors purchased a single family residence in San Diego, California. Debtors applied for a construction loan on the property from Seacoast Equities, a commercial lender. The loan application was denied. Subsequently, Riel, acting on behalf of debtors, approached Walter Law, creditor, for a construction loan. Riel presented to Law the loan package used for the Seacoast application which contained residential loan applications, appraisals, credit applications, employment verifications, bank statements, and IRS tax returns.

Law reviewed the loan package for approximately one month prior to making the loan to the debtors. Relying on the information contained in the package and on debtors’ representation that the loan would be used for improvements on the property, Law loaned the debtors $70,000 in November 1991. The loan was secured by a second deed of trust on the property.

Approximately two months later, the proceeds from the Law loan were exhausted and construction was not complete. Subsequently, debtors applied for an FHA Title 1 loan of $15,000 from First Western Bank. Debtors presented allegedly false employment verification documents to Law to persuade Law to subordinate his loan in favor of First Western. Law agreed to subordinate his second deed of trust in favor of the First Western loan.

The debtors became delinquent on their monthly payments to Law approximately one year after the loan transaction. Law met with an attorney on March 1, 1993, on which date Law’s legal expenses began to accrue. Law filed a complaint in superior court against debtors in May 1993, alleging breach of the loan contract. Law and the debtors litigated the issue in state court until March 1994.

In March 1994, debtors filed for Chapter 7 bankruptcy. Law filed an adversary proceeding claiming that debtors owed him $83,-266.72 in principal and interest. Law alleged that the debt was obtained by false representations and actual fraud and is therefore excepted from discharge pursuant to 11 U.S.C. Sections 523(a)(2)(A) and (B).

After trial, the court determined that the principal amount of the debt, $70,000, was not dischargeable pursuant to 11 U.S.C. §§ 523(a)(2)(A) and (B);. prepetition interest of $13,266.72 on the principal amount of the *420 debt was not dischargeable; and the attorney fees of $5,499 from the underlying state court action was not dischargeable. Debtors appeal the court’s order.

ISSUES ON APPEAL

1. Whether the bankruptcy court erred in determining that the debt owed to Law is excepted from discharge pursuant to §§ 523(a)(2)(A) and (B).

2. Whether the bankruptcy court erred in determining that prepetition interest on the principal amount of the debt is nondischargeable.

3. Whether the bankruptcy court erred in determining that attorney fees from the underlying state court action are nondischargeable.

STANDARD OF REVIEW

A bankruptcy court’s findings of fact are reviewed under the clearly erroneous standard. Mann v. Alexander Dawson, Inc., 907 F.2d 923, 926 (9th Cir.1990). A finding of fact is clearly erroneous if, after a review of the record, the appellate panel is left with a definite and firm conviction that error has been committed. In re Apte, 180 B.R. 223 (9th Cir. BAP 1995), aff'd, 96 F.3d 1319 (9th Cir.1996). The determination of reasonable reliance is a question of fact subject to the clearly erroneous standard of review. In re Lansford, 822 F.2d 902, 904 (9th Cir.1987).

An award of prejudgment interest by a trial court should be reviewed under the abuse of discretion standard. In re Sternberg, 85 F.3d 1400, 1405 (9th Cir.1996). An award of attorney fees is also reviewed under the abuse of discretion standard. In re Weibel, 176 B.R. 209, 211 (9th Cir. BAP 1994). A court abuses its discretion when it fails to apply the correct law or the decision is based upon a clearly erroneous finding of material fact. In re Sternberg, 85 F.3d at 1405.

A bankruptcy court’s conclusions of law are reviewed de novo. In re Daniels-Head & Assoc., 819 F.2d 914, 918 (9th Cir.1987).

DISCUSSION

I. Reasonable Reliance

Section 523(a)(2) provides in pertinent part that a debtor is not entitled to be discharged from any debt to the extent that the debt was obtained by:

(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(B) use of a statement in writing—
(i) that is materially false;
(ii) respecting the debtor’s or an insider’s financial condition;
(iii) on which the creditor to whom the debtor is hable for such money, property, services or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive.

II U.S.C. § 523(a)(2).

A creditor alleging actual fraud under § 523(a)(2)(B) must show the following seven elements in order to preclude a debt- or’s discharge:

(1) a representation of fact by the debtor;
(2) that was material;
(3) that the-debtor knew at the time to be false;
(4) that the debtor made with the intention of deceiving the creditor;
(5) upon which the creditor relied;
(6) that the creditor’s reliance was reasonable; and
(7) that damage proximately resulted from the misrepresentation.

In re Berr, 172 B.R. 299 (9th Cir. BAP 1994); In re Siriani, 967 F.2d 302, 304 (9th Cir.1992). The creditor has the burden of proving these elements by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).

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205 B.R. 418, 37 Collier Bankr. Cas. 2d 1094, 97 Cal. Daily Op. Serv. 2457, 1996 Bankr. LEXIS 1818, 1996 WL 790414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gosney-v-law-in-re-gosney-bap9-1996.