Hartford Accident & Indemnity Co. v. Segal (In re Segal)

163 B.R. 677, 1994 Bankr. LEXIS 475
CourtDistrict Court, E.D. New York
DecidedFebruary 10, 1994
DocketBankruptcy No. 892-86262-20; Adv. No. 893-8074-20
StatusPublished

This text of 163 B.R. 677 (Hartford Accident & Indemnity Co. v. Segal (In re Segal)) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hartford Accident & Indemnity Co. v. Segal (In re Segal), 163 B.R. 677, 1994 Bankr. LEXIS 475 (E.D.N.Y. 1994).

Opinion

DECISION AND JUDGMENT

ROBERT JOHN HALL, Bankruptcy Judge.

PRELIMINARY STATEMENT

This matter comes before the Court upon an adversary proceeding (“Adversary Proceeding”) commenced by the above-captioned plaintiff (“Plaintiff’) against the above-referenced debtor (“Debtor”).

The Court has jurisdiction over this case pursuant to sections 157(a), 157(b)(1) and 1334(a) of title 28, United States Code (“title 28”) and the order of referral of matters to the bankruptcy judges by the United States District Court for the Eastern District of New York (Weinstein, C.J., 1986). This is a core proceeding pursuant to sections 157(b)(2)(I) and 157(b)(2)(0) of title 28.

For the reasons set forth below, the Court holds that the relief requested by Plaintiff is DENIED, Debtor is granted judgment that the debt owed Plaintiff is dischargeable, and the Adversary Proceeding is DISMISSED and may be CLOSED after entry of this judgment.

FACTS

The Debtor filed a petition for bankruptcy relief under chapter 7, of title 11, United States Code (“Bankruptcy Code”) on November 10, 1992. Plaintiff commenced the Adversary Proceeding by the filing of a complaint with the Court on February 26, 1993 (“Complaint”). Pursuant to the Adversary Proceeding, Plaintiff seeks judgment determining that the debt of $7,625.67 owed it is non-dischargeable.1 On March 18, 1993, acting pro se, Debtor filed her answer.

In its Complaint (dated February 26, 1993, at pages 2-3), Plaintiff alleges the following. Prior to her filing for bankruptcy relief, Debtor conducted a travel agency business as a principal of Danjon Travel, Inc. (“Danjon”) and Travalong Tours, Ltd. (“Travalong”). In order to issue airline tickets, Debtor was required to obtain a surety bond, which Plaintiff furnished to Debtor, Danjon and Travalong (“Bond”). Debtor agreed to indemnify the Plaintiff for payments made on behalf of Danjon and Travalong pursuant to the Bond. Danjon and Travalong did subsequently issue airline tickets for which neither they nor Debtor paid and, pursuant to the Bond, Plaintiff made payment to the appropriate entity for the tickets. Plaintiff demanded but never received reimbursement from Debtor for its payment and asserted a claim against Debtor therefor.

Furthermore, Plaintiff alleges:

At the time these transactions occurred, the [Debtor] knew or should have known that Danjon Travel, Inc., and Travalong Tours, Ltd., would not pay for the aforesaid airline tickets. The defendant obtained the surety bond and issued the airline tickets under false pretenses and false representations. The issuance of the airline tickets by the [D]ebtor was an implied representation that the [D]ebtor had the intent and wherewithal to pay for the tickets. [T]he surety relied on the representations and extended its surety. In fact, it is clear that the representation of the ability and intent to repay were false. This is a clear case in which the [D]ebtor issued [679]*679airline tickets -without any intention or wherewithal to pay the same. The factors in the ease all evidence intent to defraud plaintiffs.

Complaint of Plaintiff, dated February 26, 1993, at 2-3.

The Debtor’s answer provides:

When [Plaintiff] decided to sue me personally in 1992 for Travalong’s debts, why wasn’t fraud mentioned then? They claimed I was personally responsible for the debts because of an indemnity agreement I signed. There was no mention of fraud then.... In regards to [paragraph] 7 of their complaint, it is stated that I obtained surety bond and issued airline tickets under false pretenses and false representation. My bond was issued and renewed every year, based on certified financial statements, and I in turn paid my premiums. At the time the bond was renewed, my finances were in good shape, but as business declined the money went very fast. [T]here was never any false representation. I had all intentions of paying every bill, and did so until the very end, when all my money was gone and I couldn’t borrow anymore.... [T]here was obviously no intention of fraud on my part, and the only damage in this summons is the waste of the court’s time, and mine. I respectfully request that these charges be dismissed due to lack of evidence. ...

Debtor’s Answer, dated March 11,1993, at 3.

Clearly, issues of fact were created by Plaintiff’s and Debtor’s pleadings. When the Complaint was filed on February 26, 1993, our Clerk’s Office issued a summons which gave notice of a pre-trial hearing before the Court scheduled for April 13, 1993. Neither party sought any type of discovery, and a trial of the issues was scheduled to take place before the Court on September 22, 1993 (“Trial Date”). Only the Plaintiff appeared on the Trial Date, however.2

LEGAL DISCUSSION

Because a judgment determining that a debt is non-dischargeable is serious, and because sufficient issues of fact were created by the parties’ pleadings, the Court determined it necessary and proper on the Trial Date to conduct an inquest into whether Plaintiff could establish a prima facie ease. United Countries Trust Co. v. Knapp (In re Knapp), 137 B.R. 682, 584-86 (Bankr.D.N.J.1992); cf. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61 (2d Cir.1981); Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915 (9th Cir.1987); Silverman v. Katz (In re Katz), 146 B.R. 617, 620-21 (Bankr.E.D.N.Y.1992) (“objections to discharge must be construed strictly against the objectant and liberally in favor of the debtor.”) (numerous citations omitted). Thus, the Court permitted Plaintiff to establish its right to the judgment requested.

The Court will first discuss what Plaintiff established on the Trial Date, then will examine whether what was established satisfies the necessary elements of Plaintiffs claim for relief.

A. Case Presented by Plaintiff

Plaintiff immediately called its only witness, a gentleman employed by Plaintiff, whose title is “Claims Supervisor”. The direct testimony of the Claims Supervisor es[680]*680tablished the following. In his position, he handles surety bond claims. In 1987, Plaintiff accepted an application for a surety bond from the Debtor as president of Danjon, doing business as Travalong (previously defined as the “Bond”). The agreement between Plaintiff and Debtor, signed by the Debtor, included both corporate and personal indemnification agreements. The arrangement was that the Debtor, operating a travel agency, obtained airline tickets through the Airline Reporting Corporation (“ARC”). ARC requires travel agencies to obtain surety bonds to guarantee the obligations of the travel agencies. ARC notified Plaintiff sometime during the existence of this business relationship, that payments had not been received by Debtor for tickets which were issued. Plaintiff wrote to Debtor and her corporations attempting to have ARC paid directly from Debtor; to the best of the Claims Supervisor’s knowledge, ARC was not paid. Plaintiff determined that tickets were in fact issued to Debtor by ARC for which Debtor did not pay. Plaintiff then paid $7,625.67 to ARC pursuant to Plaintiffs obligation and responsibilities under the Bond.

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163 B.R. 677, 1994 Bankr. LEXIS 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartford-accident-indemnity-co-v-segal-in-re-segal-nyed-1994.