In Re Gary Oliver Campbell, Debtor. Marvin I. Wolf, Individually and as Trustee of the Samuel Wolf Trust, and Augusta Wolf v. Gary Oliver Campbell

159 F.3d 963, 40 Collier Bankr. Cas. 2d 1466, 1998 U.S. App. LEXIS 28020, 33 Bankr. Ct. Dec. (CRR) 498, 1998 WL 765004
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 4, 1998
Docket97-1540
StatusPublished
Cited by30 cases

This text of 159 F.3d 963 (In Re Gary Oliver Campbell, Debtor. Marvin I. Wolf, Individually and as Trustee of the Samuel Wolf Trust, and Augusta Wolf v. Gary Oliver Campbell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Gary Oliver Campbell, Debtor. Marvin I. Wolf, Individually and as Trustee of the Samuel Wolf Trust, and Augusta Wolf v. Gary Oliver Campbell, 159 F.3d 963, 40 Collier Bankr. Cas. 2d 1466, 1998 U.S. App. LEXIS 28020, 33 Bankr. Ct. Dec. (CRR) 498, 1998 WL 765004 (6th Cir. 1998).

Opinions

[1045]*1045MERRITT, J., delivered the opinion of the court, in which GILMAN, J., joined. KENNEDY, J. (pp. 967-69), delivered a separate opinion concurring in part and dissenting in part.

OPINION

MERRITT, Circuit Judge.

This appeal presents a technical issue under the dischargeability provision of the bankruptcy law: whether a fraudulently obtained new promise to forbear on an unpaid, nonfraudulent, dischargeable old indebtedness should render the new extension of credit nondischargeable, even though the creditor may in fact be no worse off economically as a result of the fraudulent refinancing. We conclude that § 523(a)(2)(B) of the Bankruptcy Code which precludes discharge of a debtor from any “extension, renewal, or refinancing of credit, to the extent obtained by” a false written statement, means that such a new extension of indebtedness is nondis-chargeable even though the creditor is unable to show additional damages arising therefrom.1 Otherwise, an insolvent debtor would have no legal incentive to be truthful in obtaining refinancing. In so holding, we follow the well-reasoned opinion of Judge Boudin for the First Circuit in In re Goodrich, 999 F.2d 22 (1st Cir.1993), and his explanation of the legislative history and purpose of § 523.

I.

Gary Campbell furnished false financial statements regarding his company’s financial condition to Marvin and Augusta Wolf in an effort to procure their forbearance from collection on a defaulted note. After reviewing the false documents, the Wolfs negotiated new repayment terms with Campbell and conditionally agreed to forbear. Campbell failed to make an interest payment required under the new terms, and the Wolfs sued to collect the amount he still owed them. The Wolfs’ lawsuit was stayed after Campbell and his company filed for bankruptcy. The Bankruptcy Court held that Campbell’s debt was dischargeable, but the District Court reversed. Campbell’s appeal seeks to raise two questions concerning the scope of 11 U.S.C. § 523(a)(2)(B). The first question is whether forbearance from collection is a “debt ... for money, property, services, or an extension, renewal, or refinancing of credit,” and the second is whether the statute requires the creditor to establish “damages” in the sense that the false statement induced it to give up a valuable collection remedy.

Before 1990, the Wolfs held approximately nineteen percent of the stock of the Uni-source Foods Corporation. During the 1980s, the Wolfs filed two lawsuits against Unisource’s majority shareholders ih state court. Campbell was a lawyer in the firm that represented National Home Products, Inc., which in 1989 was Unisource’s majority shareholder. In 1990, Campbell bought the Wolfs’ and his client’s interests in Unisource. With the purchase, he became the sole shareholder and sole director of Unisource’s wholly-owned subsidiary, the Amendt Corporation. Campbell made Amendt’s controller, Jacqueline Noetzel, the corporation president. In exchange for Campbell’s promise to pay them a purchase price of $1 million, the Wolfs agreed to cancel two judgments they had obtained against Unisource. Campbell paid the Wolfs half the purchase price at the closing and signed a promissory note for the remaining $500,000. The note required Campbell to make quarterly interest payments equal to nine percent of the remaining balance and annual principal payments of $50,000 in December of 1990 through 1993. Campbell’s final payment of $300,000 plus remaining interest was due on [1046]*1046December 31, 1994. In the event of a default, the interest rate would increase to eleven percent, and the Wolfs would have the right to accelerate the note. Amendt guaranteed the note, which was secured by mortgages on the company’s real property and by security agreements that in effect made the Wolfs secondary lienholders on other property and equipment. The note required Amendt to provide the Wolfs with profit-and-loss balance sheets each calendar quarter and to furnish an audited profit-and-loss statement each year.

Amendt was never profitable after Campbell's acquisition and suffered substantial losses until 1993, when it filed for bankruptcy. Despite the company’s financial difficulties, Campbell made the 1990 interest and principal payments as required. He also made all interest payments due in 1991, although his October interest payment was late. Campbell failed to make the $50,000 principal payment due at the end of the year, and the note has remained in default since then. Although the Wolfs had the right at this time to declare the note in default and demand immediate payment of the entire debt, they declined to do so. Instead, they made a number of demands for the amounts past due, and Campbell asked for several extensions. In February 1992, Campbell promised that he would pay the $50,000 in two equal installments on April 15 and May 15, 1992, but failed to do so. Campbell’s subsequent attempts to borrow the funds he needed from other creditors also failed. In October 1992, Campbell suggested restructuring the entire debt. The Wolfs considered Campbell’s proposal only after he paid the interest due in October 1992 and January 1993.

In March or April 1993, Campbell directed Noetzel to forward several earnings statements and balance sheets to the Wolfs’ attorney to facilitate the restructuring of the debt. The company’s inventory was substantially less than the $1,222,027 shown on the documents, which failed to reveal that between $100,000 and $200,000 of inventory was obsolete because the company had stopped selling certain products. The documents also failed to inform the Wolfs of an unexplained discrepancy between booked inventory and actual inventory amounting to at least $250,000. In addition, the asset figures included a $560,000 “Inter Co Receivable” known to be uncollectible. Campbell was aware that Am-endt’s assets were overstated in the materials he turned over to the Wolfs. Noetzel had informed Campbell as early as November 1992 that the company’s inventory was overvalued and that certain items needed to be written off, but Campbell told her that he wanted to maintain overstated values so as not to worry creditors.

After reviewing the false documents furnished by Campbell and Amendt, Marvin Wolf and his lawyer met in April 1993 with Campbell to discuss restructuring the debt. After Campbell answered numerous questions about Amendt’s financial situation to Wolfs satisfaction, the parties discussed new repayment terms. They discussed extending the repayment period by three years and keeping the interest rate at nine percent. Campbell provided á post-dated check for the interest payment due in April and agreed to make monthly, rather than quarterly, interest payments beginning in July 1993. The parties agreed that the restructuring would be contingent upon Campbell making the July interest payment. They did not reduce these terms to writing.

The Bankruptcy Court found that the parties entered into a bilateral contract for the extension of credit at the April 1993 meeting:

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Bluebook (online)
159 F.3d 963, 40 Collier Bankr. Cas. 2d 1466, 1998 U.S. App. LEXIS 28020, 33 Bankr. Ct. Dec. (CRR) 498, 1998 WL 765004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gary-oliver-campbell-debtor-marvin-i-wolf-individually-and-as-ca6-1998.