Holton v. Zaidel (In re Zaidel)

553 B.R. 655
CourtUnited States Bankruptcy Court, E.D. Wisconsin
DecidedJuly 14, 2016
DocketCase No. 15-27551-beh; Adversary No. 15-2450
StatusPublished
Cited by7 cases

This text of 553 B.R. 655 (Holton v. Zaidel (In re Zaidel)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holton v. Zaidel (In re Zaidel), 553 B.R. 655 (Wis. 2016).

Opinion

MEMORANDUM DECISION AND ORDER

Beth E. Hanan, United States Bankruptcy Judge

Plaintiff Mary' Holton seeks a determination that a debt owed her by Casey and Mandee Zaidel for replacement of her septic system is nondischargeable under 11 U.S.C. § 523(a)(2). She alleges the Zai-dels wrongfully and intentionally misrepresented the non-compíiant status of the septic system when selling their home to Ms. Holton. The Zaidels dispute the existence of the debt and in any event contend that it may be discharged in their chapter 7 bankruptcy case.

For the reasons that follow, the court finds that the Zaidels did not know that they made a false representation and lacked an intent to deceive Ms. Holton and, therefore, holds that their alleged debt to Ms. Holton is dischargeable under 11 U.S.C. § 523(a)(2)(A).1

I. Jurisdiction

The parties agree that the court has jurisdiction to decide this matter, based on the general order of reference entered by the United States District Court for this District and pursuant to the provisions of 28 U.S.C. §§ 157 and 1334. This is a core proceeding under 28 U.S.C. § 157(b)(2)(l). This matter was tried to the court on March 18, 2016, and after post-trial review of four deposition transcripts, fourteen exhibits and written closing statements, the court took the matter under advisement. Attorney Aaron Ninneman appeared on behalf of Ms. Holton and Attorney Larry Vesely appeared on behalf of the Zaidels. The following constitutes the court’s findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052.

II. Procedural History

On April 25, 2014, buyer Mary Holton sued the debtor-sellers Casey and Mandee Zaidel in Oconto County Circuit Court, asserting claims for breach of con-trad/warranty, intentional deceit/misrepresentation, and strict responsibility misrepresentation. The state court action was set for trial on June 30, 2015. On June 26, 2015, the Zaidels filed a chapter 7 bankruptcy petition.

Ms. Holton subsequently filed this adversary proceeding, seeking a determination that the Zaidels owe her a non-dis-chargeable debt of $12,187.00 under 11 ■U.S.C. § 523(a)(2)(A), for replacement of her septic system. Ms. Holton alleges that the Zaidels deceived her into purchasing a home from them by concealing the fact that the home’s septic system needed to be replaced. The Zaidels list an unsecured debt owed to Ms. Holton in that [659]*659amount, but describe the debt as “disputed,” and assert that the alleged debt is dischargeable in any event. See Case No. 15-27551, CM-ECF, Doc. No. 1, at 17; Adversary Case No. 15-02450, CM-ECF, Doc. No. 37.

III. Factual Findings

The parties did not stipulate to any facts. The following constitutes the court’s finding of facts based on the testimony of five live witnesses: Mandee and Casey Zaidel, Mary Holton, Julie Johnson and Kevin Brehmer. The court also considered deposition testimony of four additional witnesses — Tina Owens, Nicole Wil-lems, Casey Filz and George Chambers— and fourteen exhibits.

A. Offer to Purchase Negotiations

In August 2012, the Zaidels listed their Pulaski, Wisconsin home (“the Property”) for sale through realtor Tina Owens. A Condition Report signed by the Zaidels at that time stated that the sellers were not aware of any defects in the septic system (Exhibit 2, item C.7). See CM-ECF, Doc. No. 32, at 28. In early 2013, the Zaidels received and accepted an offer to purchase the Property. That offer ultimately fell through during the first or second week of March, because, as Mrs. Zaidel testified, the potential buyers could not obtain financing. See also CM-ECF, Doc. No. 34, at 2.

Plaintiff Mary Holton toured the Property for the first time at the end of March 2013, and for a second time in early April 2013. On April 5, 2013, she submitted a purchase offer through her realtor, Nicole Willems (Exhibit 1). See CM-ECF, Doc. No. 32, at 11. The Addendum to the offer required the Zaidels to provide Ms. Hol-ton, no later than 15 days prior to closing, “a current written report, including soil test data, if a soil test is required by county regulations ... which indicates that the [septic system] is not disapproved for current use and complies with current county requirements for continued operation.” Id., at 24.

The Addendum further noted at lines 100-103: “Buyer should check with the county, the municipal sewer/water district, and evaluate the well and private sanitary system ordinances and codes for additional requirements that may apply to the Property if material to Buyer’s decision to purchase.” Id., at 25.

Line 159 of the purchase offer states: “Seller represents to Buyer that as of the date of acceptance Seller has no notice or knowledge of Conditions Affecting the Property or Transaction (lines 64-114) other than those identified in Seller’s Real Estate Condition Report dated August 3, 2012, which was received by Buyer prior to Buyer signing this Offer and which is made a part of this Offer by reference — ” Id., at 5.

After a series of counter-offers, on April 9, 2013, the Zaidels accepted Ms. Holton’s offer, which incorporated the septic system compliance contingency of the original offer. Id., at 12-15.

B. The First Septic System Inspection

In the Spring of 2013, plumber Casey Filz and soil tester Jeffrey Zahm conducted an inspection of the Zaidels’ septic system, and the resulting inspection report found that the septic system did not meet code requirements. The parties disagree on the impetus for this first inspection (whether the Zaidels requested it because of Ms. Holton’s offer or in response to a prior accepted offer), and the timing of the inspection (whether it was conducted before or after Ms. Holton presented her [660]*660offer). The evidence on these two points conflicts:

• The inspection report completed by-Mr. Filz and Mr. Zahm (the “Filz/Zahm Report,” Exhibit 3) was signed and dated March 18, 2013 by Mr. Filz (which is before the date of Ms. Holton’s April 5 purchase offer), and signed and dated April 11, 2013 by Mr. Zahm (after Ms. Holton’s purchase offer). See CM-ECF, Doc. No. 32 at 30.

• Mr. Filz testified that he was contacted by someone — he assumed it was Mandee Zaidel — to conduct a septic system inspection on the Property, and that he went to the Property on or before March 18, 2013 to inspect the septic tank. He testified that he retained Mr. Zahm to conduct the soil reading portion of the inspection. Mr. Filz completed questions 2 through 8 on the report, and later Mr. Zahm completed questions 1 and 9. Mr. Filz stated that it was Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
553 B.R. 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holton-v-zaidel-in-re-zaidel-wieb-2016.