Heptacore, Inc. v. Luster

50 F. App'x 781
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 1, 2002
DocketNos. 02-1790, 02-1792
StatusPublished
Cited by9 cases

This text of 50 F. App'x 781 (Heptacore, Inc. v. Luster) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heptacore, Inc. v. Luster, 50 F. App'x 781 (7th Cir. 2002).

Opinion

ORDER

Scott Luster, the debtor in Chapter 7 bankruptcy, appeals the district court’s affirmation of the bankruptcy court’s holding that certain of his debts were nondischargeable in bankruptcy, and Heptacore, Incorporated, the creditor, cross-appeals the district court’s affirmation of the bankruptcy court’s holding that certain of Luster’s debts were dischargeable in bankruptcy. We affirm.

I.

Scott Luster had a business relationship with Wayne Drury and his family. Drury was the chief financial officer of an excavating company and used Luster’s services as a broker locating high-yield certificates of deposit for investment by the company. This worked out well in the 1980’s, which gave Luster credibility with the Drurys. When the interest rate bonanza abated, Luster sought other ways to profit from the relationship with Drary. In 1994 he approached Drury about investing in a company he had set up called Cash Flow Management (“CFM”). Drury and other investors formed Heptacore, which was an investment holding company. Heptacore agreed to Luster’s proposal that it finance CFM in the business of factoring, which involved the purchase of delinquent accounts receivable from various companies at a substantial discount and the subsequent attempt to collect the delinquent debts. A condition of the agreement between CFM and Heptacore was that Luster personally guarantee the repayment of all sums Heptacore loaned to CFM.

For a while the factoring business had some success; thus the relationship between the two companies went well in 1995 and early 1996. CFM paid four or five principal payments on the $500,000 credit line, and some interest payments. In the spring of 1996, however, CFM and Luster realized that a large number of invoices were not collectible. Luster says that he thought that some of the invoices were fake, and he contacted the FBI to investigate the alleged problem. In the meantime, Luster joined the board of directors of a drug testing company called Occupational Health Associates (“Occupational Health”). CFM had been factoring Occupational Health’s receivables in 1995 and 1996, a practice that continued after Luster joined Occupational Health’s board. Luster had also, in January 1996, started a company called Industrial Health Associates (“Industrial Health”), using funds derived from receivables that CFM factored for Occupational Health. Luster also used $80,000 of Heptacore’s money as venture capital for Industrial Health, instead of using those funds for their proper purpose: factoring.

In May 1996, Luster requested that Heptacore extend $50,000 of credit for “funding needed for continued business” as to three of CFM’s clients. On May 15, Heptacore sent the money and CFM immediately transferred $50,000 to Industrial Health, purchasing all the shares of Industrial Health’s stock. Industrial Health then issued a check payable to Luster for $50,000. The check’s notation said “payroll advance,” and Luster promptly deposited the check into his personal checking account. None of the three client companies ever saw any of the $50,000. Luster [783]*783also used $5,000 of Heptacore’s money intended for factoring instead to repay a loan made to CFM by Rate Search, Incorporated, which Luster owned. Heptacore maintains that it did not know of Luster’s controlling interest in Industrial Health or Occupational Health during this time.

By the autumn of 1996, CFM was hemorrhaging money, which Luster attributed to the alleged purchase of phony invoices and clients’ conversion of funds. Luster argued that, on Heptacore’s direction, he closed down CFM, paid CFM’s outstanding payables, and sent Heptacore the balance of the funding account. As part of the winding down of CFM, Luster authorized, and expended, $150,000 of Heptacore’s money to pay creditors. One of those creditors included Rate Search. Heptacore’s position is that it never authorized Luster to spend the $150,000 on winding down, because CFM owed Heptacore $678,000 and it knew CFM was destined for bankruptcy.

On April 11, 2000, Luster and his wife filed a voluntary, joint petition for Chapter 7 bankruptcy relief. On July 14, 2000, Heptacore filed an adversary proceeding in the United States Bankruptcy Court for the Southern District of Illinois. Heptacore alleged that discharging Luster’s debt would, inter alia, contravene 11 U.S.C. § 523(a)(2)(A).1

The bankruptcy court held that Heptacore failed to show that the entirety of its series of transactions with Luster was fraudulent and thus refused to declare the full amount of Luster’s debt to Heptacore nondischargeable under § 523(a)(2)(A). The bankruptcy court also held, however, that Heptacore had proven by a preponderance of the evidence that Luster committed four specific instances of fraud: (1) the $50,000 purchase of stock in Occupational Health; (2) the $80,000 used as start-up capital for Industrial Health; (3) the $5,000 that Luster used to pay Rate Search; and (4) the $150,000 that Luster spent to wind up CFM. The bankruptcy court thus held that $285,000 of Luster’s debt was nondischargeable under § 523(a)(2)(A). On appeal to the United States District Court for the Southern District of Illinois, the district court affirmed that holding.

Luster appeals, and Heptacore cross-appeals, raising three issues. First, Luster argues that the bankruptcy court erred in deciding, and the district court erred in affirming the decision, that Luster committed the four specific acts of fraud discussed above. Second, Luster contends that the bankruptcy court applied an incorrect legal standard in determining that certain of Luster’s obligations to Heptacore were nondischargeable for fraud under § 523(a)(2)(A). Finally, Heptacore argues that the bankruptcy court erred in deciding that Luster’s full debt of $678,000 was not nondischargeable under § 523(a)(2)(A).

II.

The first issue on appeal is whether the bankruptcy court erred in deciding, and the district court erred in affirming the decision, that Luster committed the four specific acts of fraud discussed above. We review for clear error the bankruptcy court’s determination of whether fraud existed under § 523(a)(2)(A). Mayer v. Spanel Int’l, Ltd. (In re Mayer), 51 F.3d 670, 676 (7th Cir.1995). Section 523(a)(2)(A) prohibits the discharge of debt incurred by “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or insider’s financial [784]*784condition[.]” In In re Maurice, 21 F.3d 767 (7th Cir.1994), this court held that, to prove nondischargeability under § 523(a)(2)(A), a creditor2 must establish that: (1) the debtor obtained the money through a representation that was false or was made with such reckless regard for the truth as to constitute willful misrepresentation; (2) the debtor had an actual intent to defraud; and (3) the creditor actually and reasonably relied on the false representation. Id at 774. In Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995), the Supreme Court held that the creditor’s reliance need only be justifiable, but not necessarily reasonable, thus modifying the third criterion we set forth in Maurice. Id. at 74;

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Bluebook (online)
50 F. App'x 781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heptacore-inc-v-luster-ca7-2002.