In re: Syed S. Chowdaury

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: June 30, 2014
• Docket: EC-13-1346-KuJuTa
• Status: Unpublished

Opinion

FILED JUN 30 2014 1 NO FO PUBL A IO T R IC T N SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. EC-13-1346-KuJuTa ) 6 SYED S. CHOWDAURY, ) Bk. No. 11-38996 ) 7 Debtor. ) Adv. No. 11-02724 ______________________________) 8 ) NITIN SHAH, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) SYED S. CHOWDAURY, ) 12 ) Appellee. ) 13 ______________________________) 14 Argued and Submitted on May 15, 2014 at Sacramento, California 15 Filed – June 30, 2014 16 Appeal from the United States Bankruptcy Court 17 for the Eastern District of California 18 Honorable Robert S. Bardwil, Bankruptcy Judge, Presiding 19 Appearances: William Steven Shumway argued for appellant Nitin 20 Shah; Aaron Christopher Koenig argued for appellee Syed S. Chowdaury. 21 22 Before: KURTZ, JURY and TAYLOR, Bankruptcy Judges. 23 24 25 26 * This disposition is not appropriate for publication. 27 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 28 See 9th Cir. BAP Rule 8013-1. 1 INTRODUCTION 2 Pursuant to 11 U.S.C. § 523(a)(2)(A),1 Creditor Nitin Shah 3 commenced nondischargeability litigation against debtor Syed S. 4 Chowdaury alleging that Chowdaury fraudulently induced Shah to 5 enter into an extension, renewal or refinancing of credit. 6 After trial, the bankruptcy court ruled against Shah. The 7 court found that Chowdaury did not make any misrepresentation or 8 false promise at or before the time Shah lent money to Chowdaury, 9 nor did Chowdaury intend to deceive Shah at the time Shah lent 10 the money. The bankruptcy court also ruled against Shah on the 11 alternate basis that Shah had failed to demonstrate justifiable 12 reliance. 13 Because Shah presented no evidence that Chowdaury’s conduct 14 proximately caused Shah to incur any damages, We AFFIRM. 15 FACTS 16 Chowdaury owned and operated two hotel properties in Lake 17 Tahoe, California, known as the Monaco Hotel and the Lone Pine 18 Inn.2 In 2003, Chowdaury was experiencing financial difficulties 19 and needed funds to pay back taxes and to make repairs to his 20 Lake Tahoe properties. Chowdaury approached his local bank, 21 which declined to lend him the money, but his banker put him in 22 touch with Shah, who agreed to loan money to Chowdaury. Between 23 roughly March and October of 2003, Shah made a series of advances 24 to Chowdaury, which totaled somewhere between $219,000 and 25 1 26 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 27 2 Chowdaury also is known by the name of Syed Ali. For ease 28 of reference, he is always referred to herein as Chowdaury.

2 1 $257,000. Shah made these 2003 advances without any formal loan 2 documentation, nor was there any clear agreement or understanding 3 on how or when Chowdaury would repay the loan. 4 In April 2004, Chowdaury still needed additional money. 5 According to Shah, he refused to lend Chowdaury any additional 6 money unless Chowdaury signed a promissory note covering the 2003 7 advances. The note Chowdaury signed, dated April 8, 2004, 8 provided for 10% interest and a principal amount of $205,000. 9 However, the note also provided that the principal amount would 10 be “substantiated by cancelled check copies & other papers.” 11 Straight Note (April 8, 2004) at p. 1. 12 The note also contained three potentially-conflicting 13 provisions regarding repayment. The printed form of the note 14 stated that the note was payable on demand. But an 15 interlineation on the face of the note stated: “Note will be paid 16 on Refinance of Monaco Hotel & Lone Pine Inn Refinance (Lake 17 Tahoe, Ca),” and a second intelineation stated: “Monaco Hotel 18 will fund the Note upon Refinance.” Id. 19 Apparently, Shah never loaned any additional money to 20 Chowdaury after Chowdaury signed the note. As for Chowdaury, 21 before signing the note, he made payments on account of the 2003 22 advances totaling $14,000. However, after signing the note, 23 Chowdaury never made any further payments to Shah. 24 Chowdaury subsequently refinanced his Lake Tahoe properties, 25 but he did not repay Shah. In 2009, after Shah learned of the 26 refinancing transactions, he filed a lawsuit against Chowdaury in 27 the Alameda County Superior Court. In 2011, while the state 28 court lawsuit was pending, Chowdaury commenced his chapter 7

3 1 bankruptcy case, and Shah commenced an adversary proceeding 2 seeking to except Chowdaury’s indebtedness from discharge under 3 § 523(a)(2)(A).3 4 Shah’s operative pleading, his second amended complaint, 5 focused on the 2003 advances. Shah alleged that, with the intent 6 to fraudulently induce Shah to make the 2003 advances, Chowdaury 7 falsely represented his intent regarding the use of the loan 8 proceeds and regarding repayment of the loan. Shah’s statement 9 of facts in his unilateral pretrial statement was consistent with 10 the allegations set forth in his second amended complaint. 11 However, during trial, Shah’s focus shifted from the 2003 12 advances to the 2004 note. According to Shah, at the time 13 Chowdaury executed the 2004 note, Chowdaury falsely represented 14 that he would repay the 2003 advances when he refinanced his Lake 15 Tahoe properties. 16 By the end of the trial, Shah’s legal theory of recovery had 17 fully evolved to focus exclusively on the repayment 18 misrepresentation allegedly made at the time the 2004 note was 19 signed, as reflected in counsel’s closing argument. Indeed, 20 Shah’s counsel explicitly confirmed that the actionable 21 misrepresentation occurred at the time the 2004 note was signed 22 and not at the time of the 2003 advances: 23 THE COURT: Does your client assert that Mr. Chowdaury made the representation that your client would be 24 repaid upon the refinance of the Tahoe properties at any time before the note was signed, and that was April 25 26 3 The complaint ambiguously alleged that the debt was 27 nondischargeable under § 523(a), but Shah clarified at the time of trial that his nondischargeability claim was based on 28 § 523(a)(2)(A).

4 1 of 2004? 2 MR. SHUMWAY: No. This is the transaction. This is the event. That the renegotiation of the debt, the 3 obligation of 13 the debt – 4 THE COURT: At this point in time. 5 MR. SHUMWAY: -- created this situation at this point in time and this was how we were going to get repaid. 6 7 Tr. Trans. (May 13, 2013) at 93:7-16. 8 Shah’s trial testimony and Chowdaury’s trial testimony 9 differed considerably regarding the nature and purpose of the 10 2004 note. Whereas Shah attempted to characterize the 2004 note 11 as a refinancing of the 2003 advances, Chowdaury claimed that the 12 2004 note was meant to address new advances that Shah had agreed 13 to make but never made. 14 The bankruptcy court orally announced its findings of fact 15 and conclusions of law at the conclusion of the trial. The court 16 stated that it found both Shah and Chowdaury generally credible. 17 The court acknowledged inconsistencies in their respective 18 accounts of their business transactions, but it attributed these 19 inconsistencies to the very loose and informal manner in which 20 they transacted business. With respect to the purpose and nature 21 of the 2004 note, the court nonetheless concluded that Shah’s 22 explanation of the note was more credible than Chowdaury’s. 23 At the same time, the court rejected Shah’s characterization 24 of the 2004 note as a refinancing of the 2003 advances. Instead, 25 the court determined that the 2004 note was merely a written 26 memorialization of Chowdaury’s indebtedness for the 2003 27 28

5 1 advances.4 2 In addition, the bankruptcy court found that, prior to the 3 execution of the 2004 note, Chowdaury never made any 4 representation or promise, false or otherwise, regarding how the 5 2003 advances would be repaid. The court further found that 6 Chowdaury did not intend to deceive Shah at the time Shah made 7 the 2003 advances. 8 According to the bankruptcy court, Shah also failed to 9 demonstrate justifiable reliance. The court based this finding 10 on the following facts: (1) the loose and informal manner in 11 which Shah advanced funds to Chowdaury; (2) Shah’s awareness of 12 Chowdaury’s financial problems in general and more specifically 13 Chowdaury’s problems operating the Lake Tahoe properties; 14 (3) Shah’s knowledge that Chowdaury was unable to obtain a loan 15 from a conventional lender or other third parties; and (4) Shah’s 16 failure to require Chowdaury to produce any financial information 17 before Shah made the 2003 advances. 18 On June 6, 2013, the bankruptcy court entered judgment 19 against Shah and in favor of Chowdaury on Shah’s 20 nondischargeability claim. Shah timely filed his notice of 21 appeal on June 19, 2013. 22 JURISDICTION 23 The bankruptcy court had jurisdiction pursuant to 28 U.S.C. 24 §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. 25 4 26 Shah’s complaint allegations and his trial testimony generally are consistent with the bankruptcy court’s 27 determination that the note was a mere memorialization and not a refinancing. In any event, this determination is not critical to 28 our analysis and resolution of this appeal.

6 1 § 158. 2 ISSUE 3 Did the bankruptcy court commit reversible error when it 4 ruled against Shah on his § 523(a)(2)(A) claim? 5 STANDARDS OF REVIEW 6 In appeals from exception to discharge actions, we review 7 the bankruptcy court's findings of fact under the clearly 8 erroneous standard and its conclusions of law de novo. Oney v. 9 Weinberg (In re Weinberg), 410 B.R. 19, 28 (9th Cir. BAP 2009), 10 aff'd, 407 Fed.Appx. 176 (9th Cir. 2010). 11 A fact finding is not clearly erroneous unless it is 12 “illogical, implausible, or without support in the record.” Retz 13 v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010). 14 We may affirm on any ground supported by the record. Shanks 15 v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008). 16 DISCUSSION 17 In order to prove that its claim should be excepted from 18 discharge under § 523(a)(2)(A), a creditor must establish that it 19 was induced to provide “money, property or services” or to enter 20 into “an extension, renewal or refinancing of credit” by means of 21 “false pretenses, a false representation, or actual fraud.” 22 § 523(a)(2)(A); see also Ghomeshi v. Sabban (In re Sabban), 23 600 F.3d 1219, 1222 (9th Cir. 2010). In turn, the creditor can 24 establish fraud by demonstrating: (1) that the debtor made 25 misrepresentations, (2) that the debtor knew the 26 misrepresentations were false at the time they were made, 27 (3) that the debtor made them with the intent to deceive the 28 creditor, (4) that the creditor justifiably relied on the

7 1 misrepresentations, and (5) that, as a proximate cause of the 2 creditor’s reliance, the creditor was harmed. Id.; 3 In re Weinberg, 410 B.R. at 35. 4 Shah has not argued, either during trial or on appeal, that 5 Chowdaury made any actionable misrepresentations at the time Shah 6 made the 2003 advances. Instead, Shah argues that the debt 7 should be excepted from discharge because Chowdaury made a false 8 promise – that he would repay the 2003 advances upon refinance of 9 the Lake Tahoe properties – at the time he executed the 2004 10 note.5 11 Shah’s argument is fatally flawed. The record establishes 12 (and the bankruptcy court in essence found) that Chowdaury did 13 not induce Shah to do anything to his detriment on account of the 14 2004 promise to repay. Shah claims that, because Chowdaury 15 executed the note and promised therein to repay the debt upon the 16 refinance of the Lake Tahoe properties, Shah agreed to forbear 17 from attempting to collect on the debt until Chowdaury refinanced 18 the Lake Tahoe properties. There are three problems with this 19 claim. First, the record does not support it. On its face, the 20 note Chowdaury executed states that it is payable “on demand.” 21 While the note also states that it will be repaid upon refinance 22 of the Lake Tahoe properties, it is far from clear that the note 23 prohibited Shah from immediately demanding repayment or from 24 initiating a collection action if the debt was not repaid upon 25 5 26 A false promise is a type of misrepresentation that can support an exception to discharge under § 523(a)(2)(A), provided 27 that all of the § 523(a)(2)(A) elements are established. See McCrary v. Barrack (In re Barrack), 217 B.R. 598, 606-07 (9th 28 Cir. BAP 1998).

8 1 demand. Nor is there anything else in the record indicating 2 that, until the Lake Tahoe properties were refinanced, Shah was 3 prohibited from demanding payment of the debt or from initiating 4 collection activities. 5 Second, even if Shah did affirmatively agree to forbear from 6 collecting on the debt pending the refinance of the Lake Tahoe 7 properties, the record indicates that Chowdaury neither induced 8 nor solicited this agreement to forbear. Rather, based on the 9 evidence adduced at trial, Chowdaury unilaterally decided to 10 forbear. Presumably, he agreed to forbear because he realized 11 that this was his only realistic hope of collecting on the debt. 12 A creditor’s unilateral decision to forbear is not actionable 13 under § 523(a)(2)(A) unless the debtor induced that forbearance 14 by making a false representation. See FO–Farmer's Outlet, Inc. 15 V. Daniell (In re Daniell), 2013 WL 5933657, at **9-10 (9th Cir. 16 BAP 2013). 17 And third, even if Chowdaury did induce Shah to forbear from 18 collecting on the debt, Shah presented no evidence that 19 Chowdaury’s promise to repay proximately caused Shah to incur 20 damages. In order to prevail on a § 523(a)(2)(A) claim based on 21 the creditor’s forbearance, the creditor must prove, among other 22 things, that at the time of the forbearance, “it had valuable 23 collection remedies.” Cho–Hung Bank v. Kim (In re Kim), 163 B.R. 24 157, 161 (9th Cir. BAP 1994), aff'd and adopted, 62 F.3d 1511 25 (9th Cir. 1995); see also Stevens v. Nw. Nat'l Ins. Co. 26 (In re Siriani), 967 F.2d 302, 305 (9th Cir. 1992)(same holding 27 in the context of § 523(a)(2)(B)). The creditor also must prove 28 that “those remedies lost value” during the time of forebearance.

9 1 In re Kim, 163 B.R. at 161. In short, the creditor proves 2 proximate causation and damages only to the extent it shows that 3 its remedies lost value during the forbearance period. Id. 4 Simply put, even if we were to accept Shah’s claim that he 5 was induced to forbear from collecting on Chowdaury’s debt based 6 on Chowdaury’s allegedly false promise to repay the debt upon the 7 refinancing of the Lake Tahoe properties, Shah still would lose 8 this appeal because Shah presented no evidence at trial 9 indicating that he had valuable collection remedies that he lost 10 as a result of his forbearance. 11 Shah also cannot prevail on appeal because he did not 12 adequately address in his opening appeal brief the bankruptcy 13 court’s alternate grounds for its judgment – its finding that 14 Shah did not justifiably rely on Chowdaury’s promise to repay. 15 Shah’s appeal brief devotes only one paragraph to the bankruptcy 16 court’s justifiable reliance finding. In that single paragraph, 17 Shah marshals a handful of facts, some of which are not even in 18 the record, which might have permitted the bankruptcy court to 19 find justifiable reliance. But Shah has not demonstrated on 20 appeal that no reasonable factfinder could have found an absence 21 of justifiable reliance on the record presented. “Where there 22 are two permissible views of the evidence, the factfinder's 23 choice between them cannot be clearly erroneous.” Anderson v. 24 City of Bessemer City, N.C., 470 U.S. 564, 574 (1985). 25 Put another way, Shah has failed to demonstrate that the 26 bankruptcy court’s finding regarding justifiable reliance was 27 “illogical, implausible, or without support in the record.” 28 In re Retz, 606 F.3d at 1196. Accordingly, we cannot say that

10 1 the court’s finding of no justifiable reliance was clearly 2 erroneous. 3 CONCLUSION 4 For the reasons set forth above, we AFFIRM the bankruptcy 5 court’s judgment. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28