Household Finance Corp. v. Neal (In re Neal)

35 B.R. 64, 1983 Bankr. LEXIS 4999
CourtDistrict Court, D. Maryland
DecidedNovember 17, 1983
DocketBankruptcy No. 83-1-0255; Adv. No. 83-0575A
StatusPublished
Cited by2 cases

This text of 35 B.R. 64 (Household Finance Corp. v. Neal (In re Neal)) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Household Finance Corp. v. Neal (In re Neal), 35 B.R. 64, 1983 Bankr. LEXIS 4999 (D. Md. 1983).

Opinion

[65]*65MEMORANDUM OF DECISION

PAUL MANNES, Bankruptcy Judge.

Plaintiff Household Finance Corporation seeks a declaration that the $2,433.78 debt owed to it by Kevin Lee Neal is nondis-chargeable. 11 U.S.C. § 528(a)(2) provides:

(a) A discharge under section 727,1141, or 1328(b) of this title does not discharge an individual debtor from any debt—
* * * * * *
(2) for obtaining money, property, services, or an extension, renewal, or refinance of credit, by—
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; or
(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 liable for obtaining such money, property, services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive;

The facts of this case are simple and for the most part undisputed. Debtor works for IBM as a marketing representative. In August, 1981, he was transferred by IBM from the West Coast to the East Coast. On April 10,1981, he filed in the United States Bankruptcy Court for the Northern District of California a voluntary petition under Chapter 7. His counsel was Dianne M. Mill-ner. Her affidavit dated September 8,1988 (defendant’s Exhibit No. 3), details the fate of the California proceeding:

“I, Dianne M. Millner, declare as follows:
1. I am an attorney licensed to practice law in the state of California. I am a partner in the law firm of Millner & McGee.
2. On April 10, 1981, our firm filed a Chapter 7 petition for Kevin Lee Neal in the Bankruptcy Court for the Northern District of California.
3. I personally examined the court file in this matter on September 6,1983. The file indicates that the court granted Mr. Neal’s application to pay the filing fee in installments.
4. Mr. Neal attended the Section 341(a) hearing on June 4, 1981.
5. My examination of the Bankruptcy Court’s file on September 6, 1983 indicated that Mr. Neal told the court clerk at the § 341(a) hearing that his address had been changed to 600 Oak Street No. 4, San Francisco, California.
6. The Court file indicates that an Order to Show Cause why Mr. Neal’s petition should not be dismissed for non-payment of filing fee was sent to the bankruptcy trustee and to the debtor at 600 Oak Street No. 14, San Francisco, California. The OSC was not sent to our firm. The OSC required Mr. Neal to personally appear on October 15, 1981 to show cause why the petition should not be dismissed for nonpayment of the filing fee.
7. The Court file indicates that the debtor did not appear and that an Order of Dismissal was entered on November 24, 1981. When our office received a copy of the Order of Dismissal, we sent a copy to Mr. Neal’s last known address.
8. Mr. Neal’s discharge hearing was set for November 16, 1981. To the best of my knowledge, according to local practice, attorneys and debtors were not required to appear at discharge hearings unless the debtor wished to enter into a reaffirmation agreement or unless there was other unusual business. Our firm did not prepare any reaffirmation agreement or other motion for Mr. Neal.
I declare under penalty of perjury that the foregoing is true and correct to the best of my information and belief.
Dated 9-8 ,1983 /s/ DIANNE M. MILLNER”

Debtor moved to the Metropolitan Washington area. In July, 1982, he applied for an HFC loan to finance a vacation. He did not mention the previous bankruptcy on the loan application as the application did not request such information. The court finds [66]*66that he stated that he lived in Reston four months prior to moving to his present address and that there was no misstatement concerning his residence. Debtor did not know that there was any problem with the California proceeding prior to being contacted by a California creditor some time after the consummation of the HFC loan.

Household Finance Corporation would not have made the loan had it known of either the California proceeding or the outstanding debts that had not been discharged. Debtor submitted a materially false financial statement that was reasonably relied upon by HFC. However, the false statement was published in good faith. Debtor believed at the time he made the statement that it was accurate. He did not act recklessly or in wanton disregard of the truth or falsity of the facts stated. In re Hospelhorn, 5 CBC 2d 660, 663 (Bkrtcy.S.D.Ohio 1981). He acted on the representation of counsel that the case was concluded in that he did not have to appear for a hearing pursuant to § 524(d) to ascertain whether or not a discharge has been granted.

The admittedly false statements made here relate to the financial condition of debtor and are governed by § 523(a)(2)(B). Blackwell v. Dabney, 702 F.2d 490, 492 (4th Cir.1983). The central issue is the intent to deceive. This element was described thoroughly in In re Magnusson, 14 B.R. 662, 669, 8 BCD 708 (Bkrtcy.N.D.N.Y.1981):

Assuming arguendo that reasonable reliance was shown, the last element of requisite proof for the Credit Union is clear and convincing evidence of the Debtor’s “intent to deceive” when executing his Application. See, 11 U.S.C. 523(a)(2)(B)(iv). Obtaining credit by a materially false financial statement will prevent bankruptcy discharge if the bankruptcy-debtor either (1) had actual knowledge of the falsity of the statement, or (2) demonstrated reckless indifference to the accuracy of the facts stated therein. Matter of Bardwell, 610 F.2d 228, 229 (5th Cir.1980); in accord, In re Paul L. Barrett, 2 B.R. 296, 298 (Bkrtcy.E.D.Pa.1980) (re: Bankruptcy Act of 1898, § 17(a)(2). Where a person knowingly or recklessly makes a false representation which the person knows or should know, will induce another to make a loan, intent to deceive may logically be inferred. Carini v. Matera, 592 F.2d 378 (7th Cir.1979) citing to In re Nelson, 561 F.2d 1342, 1346-47 (9th Cir.1977). This inference arises because where a debtor knowingly makes a false statement, he must be held to have intended the natural and necessary consequences of his act. In re Arnold Jay Norton, Jr., 11 B.R. 141, 145 (Bkrtcy.D.Vt.1980) citing to In re Stine, 60 F.Supp. 703 (E.D.Mo.1945).

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Bluebook (online)
35 B.R. 64, 1983 Bankr. LEXIS 4999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/household-finance-corp-v-neal-in-re-neal-mdd-1983.