In re Bonnett

895 F.2d 1155, 110 B.R. 1129, 22 Collier Bankr. Cas. 2d 657, 1989 U.S. App. LEXIS 20042, 1989 WL 168404
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 20, 1989
DocketNo. 87-2102
StatusPublished
Cited by59 cases

This text of 895 F.2d 1155 (In re Bonnett) 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
In re Bonnett, 895 F.2d 1155, 110 B.R. 1129, 22 Collier Bankr. Cas. 2d 657, 1989 U.S. App. LEXIS 20042, 1989 WL 168404 (7th Cir. 1989).

Opinion

KANNE, Circuit Judge.

This is an appeal of an order of the district court which reversed the bankruptcy court’s determination that a debt was nondischargeable under 11 U.S.C. § 523(a)(2)(B).1 Because we find that the district court applied an improper standard of review, we reverse.

BACKGROUND

James and Linda Bonnett (Bonnett) owned and operated Bonnett’s Turkey Hatchery, Inc. in southern Illinois. In August, 1980, Bonnett approached the National Bank of Petersburg (NBP) for a $500,-000 loan for the business. Since the loan request exceeded NBP’s lending limit, NBP asked another larger bank, the Illinois National Bank of Springfield (INB) to participate in the loan. We will refer to these two lenders collectively as the “Banks.”

Bonnett completed the usual loan applications, and he later forwarded the Banks a host of additional information which explained the history and operation of the hatchery. An uncertified financial audit was among these additional materials. Pri- or to reaching their loan decision, the Banks requested and received from Bon-nett a certified audit, detailing substantially the same information as the uncertified audit they previously were furnished. Both of these audits were prepared by an independent accountant, W. Leon Jones, C.P.A. Based on this information, the Banks approved the loan on December 1, 1980.

On March 19, 1982, approximately sixteen months after the Banks made the loan to Bonnett, the hatchery sought reorganization under Chapter 11. Three months later on June 10, 1982, this filing was converted to a Chapter 7 proceeding. The Bonnetts declared personal bankruptcy under Chapter 7 on May 17, 1982, which initiated this adversary proceeding.

Banks usually do not make loans of this magnitude without a security interest in some tangible, marketable asset which is worth as much or more than the value of the loan. When the debtor defaults, the lender may force the sale of the collateral, and, in theory, is made whole. When default occurs and the sale of the collateral fetches substantially less than the lender expected, the lender often questions the appraisal. The lender may have been intentionally misinformed about the collateral’s true value. 11 U.S.C. § 523(a)(2)(B) provides an avenue whereby a lender can seek to declare a fraudulently obtained loan nondischargeable. In this case the Banks seek such a determination. In short, the subject of this appeal is the value of turkeys.

I.

Under 11 U.S.C. § 523(a)(2)(B), the party seeking the exception to discharge has the burden of proving, by clear and convincing evidence, all four statutory elements. In re Bogstad, 779 F.2d 370, 372 (7th Cir.1985). The bankruptcy court held that the Banks met this burden, and found the debt nondischargeable. Bonnett appealed, and the district court took exception as to one statutory element (reasonable reliance; 11 U.S.C. § 523(a)(2)(B)(iii)) and reversed.

[1157]*1157We review factual findings of the bankruptcy court under a clearly erroneous standard, but review conclusions of law de novo (Bankruptcy Rule 8013). Our review of the relevant facts extends not to the district court's decision, but to the findings of fact made by the bankruptcy court itself. In re First Wisc. Nat’l Bank, 849 F.2d 284, 286 (7th Cir.1988); In re Kimzey, 761 F.2d 421, 423 (7th Cir.1985). The clearly erroneous standard, however, does not permit a trier of fact to be overturned “simply because [the appellate court] is convinced it would have decided the case differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Instead, where two permissible conclusions can be drawn, the factfinder’s choice cannot be clearly erroneous. EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 309 (7th Cir.1988). Special deference must be accorded to credibility determinations “for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief of what is said.” Anderson, 470 U.S. at 575, 105 S.Ct. at 1512.

The district court believed that Kimzey did not preclude de novo review of the issue of reasonableness, and properly noted the developing case law on reasonableness in a 11 U.S.C. § 523(a)(2)(B) proceeding. In re Bogstad, 779 F.2d 370, 372-73 n. 4 (7th Cir.1985) (citing In re Blatz, 37 B.R. 401, 404-05 (Bankr.E.D.Wis.1984)), aff'd sub nom. Regency National Bank v. Blatz, 67 B.R. 88 (E.D.Wis.1986). This court, however, has held that a bankruptcy court’s determination of dischargeability is subject to a clearly erroneous standard of review. In re Suttles, 819 F.2d 764, 765 (7th Cir.1987). Here, the bankruptcy court held two days of trial and was able to closely evaluate the witnesses’ testimony. Absent an abuse of discretion, an appellate court should not attempt to redetermine the credibility of witnesses. In re Pearson Brothers Co., 787 F.2d 1157, 1162 (7th Cir.1986).

The reasonableness of a creditor’s reliance should be determined on a case by case basis. In re Mullet, 817 F.2d 677, 679 (10th Cir.1987). Here, the Banks received both audited and unaudited statements from Bonnett. The unaudited financial statement Bonnett provided listed assets under two columns — “FAIR MARKET VALUE” and “HISTORICAL COST” (see Appendix I). End Note # 2 of the unaudited statement showed “the value of the breeding stock is the accumulated cost in the hens and toms.” This unaudited statement was reviewed by the Banks at a meeting with Bonnett on October 9, 1980. During that meeting, the parties also discussed the turkey flock to be used as collateral. A representative of INB requested a certified audit be provided to supplement the unaudited statement already received.

A week after this meeting the Banks toured the hatchery. Bonnett provided another detailed packet of information shortly thereafter, and referred three times to the unaudited statement in the accompanying letter. On December 1, 1980, the Banks met again with Bonnett, and discussed the recently provided audited financial statement. The audited statement reflected a “breeder stock” value of $963,690, again reproducing end note # 2.

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895 F.2d 1155, 110 B.R. 1129, 22 Collier Bankr. Cas. 2d 657, 1989 U.S. App. LEXIS 20042, 1989 WL 168404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bonnett-ca7-1989.