John Deere Credit Service v. McLaughlin (In Re McLaughlin)

109 B.R. 14, 1989 Bankr. LEXIS 2269, 20 Bankr. Ct. Dec. (CRR) 4, 1989 WL 158563
CourtUnited States Bankruptcy Court, D. New Hampshire
DecidedDecember 14, 1989
Docket19-01013
StatusPublished
Cited by12 cases

This text of 109 B.R. 14 (John Deere Credit Service v. McLaughlin (In Re McLaughlin)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John Deere Credit Service v. McLaughlin (In Re McLaughlin), 109 B.R. 14, 1989 Bankr. LEXIS 2269, 20 Bankr. Ct. Dec. (CRR) 4, 1989 WL 158563 (N.H. 1989).

Opinion

MEMORANDUM OPINION

JAMES E. YACOS, Bankruptcy Judge.

This chapter 11 adversary proceeding involves a complaint filed by a creditor, John Deere Credit Service, against the debtor. The complaint seeks to declare the creditor’s debt nondischargeable pursuant to § 523(a)(6) because the debtor allegedly willfully and maliciously converted property subject to the creditor’s security interest. This Court has jurisdiction under 28 U.S.C. § 157(b)(2)(B), (I), and the general reference order dated February 1, 1985 by the U.S. District Court for the District of New Hampshire. This matter came on for a hearing on May 15, 1989, and on that date I dictated my findings of fact into the record.

FINDINGS OF FACT

1. On September 25, 1985, debtor purchased a diesel tractor, loader bucket, rotary cutter and trailer for personal use from plaintiff pursuant to a retail installment contract and security agreement. The original total purchase price was $20,-851.00.

2. In July, 1986, the debtor sold these items to a person of whom the debtor kept no record.

3. The debtor did not inform the plaintiff of the sale, nor did the debtor attempt to get the plaintiff’s prior consent.

4. The debtor was aware of the security interest in the property at the time of sale. Moreover, due to his experience as an automobile salesman for eighteen years he knew the security agreement meant the secured lender was entitled to get paid out of the collateral if he did not pay off the debt.

5. The debtor used the money to start a used car business. The debtor honestly believed he could pay the debt to the plaintiff with his anticipated future business success.

6. At the time of the sale, the debtor had substantial unencumbered assets, including home equity and a vacation home. These items enabled debtor to obtain $200,-000.00 in financing by November 1986 to enhance his used car business. In February 1988 he received $500,000.00 from New England Mortgage Company for the business.

7. Debtor’s used car business failed when a bank that had previously committed for further financing refused to honor floor planning arrangements for new vehicles which the debtor had purchased, and otherwise obligated himself upon, in reliance upon the previous commitment.

8. After selling the collateral, the debt- or made a few more scheduled payments under his installment sales contract before ceasing payment. The Court does not believe these payments were made in an attempt to conceal the conversion from the plaintiff.

STATUTORY PROVISION

The only statutory provision at issue is 11 U.S.C. § 523(a)(6). That section reads in pertinent part:

(a) A discharge under Section 727, 1141, 1228(a), 1228(b), or 1328(b) of this *16 title does not discharge an individual from any debt—
* * j}s * * *
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity;

DISCUSSION

There are numerous conversion cases from other jurisdictions that implicate section 523(a)(6), particularly cases involving conversions of property subject to a security interest. Although the cases can be analyzed to some extent based on their differing facts, the real difference in the cases is the legal standard being applied to the term “malicious”. There are four different legal standards used by Courts in conversion cases that implicate section 523(a)(6). See generally In re Horldt, 86 B.R. 823 (Bankr.E.D.Pa. 1988).

The first group of cases hold that if a debtor acts intentionally without just cause, then no evidence of a specific intent to injure need be shown to find the debtor acted maliciously. The leading case for this position is In re Cecchini, 780 F.2d 1440 (9th Cir.1986). In holding the conversion at issue nondischargeable the court stated:

When a wrongful act such as conversion, done intentionally, necessarily produces harm and is without just cause or excuse, it is “willful and malicious” even absent proof of a specific intent to injure.

Id. at 1443.

Not surprisingly, subsequent cases in the Ninth Circuit almost always find a conversion nondischargeable as long as the debtor read and understood the security agreement. See, e.g., In re Manser, 99 B.R. 434 (Bankr. 9th Cir.1989); In re Sandman, 68 B.R. 784 (Bankr.D.Mont.1987).

Other courts have also adopted this stringent view regarding nondischargeable debt arising from conversions. See, e.g., In re Guy, 101 B.R. 961 (Bankr.N.D.Ind.1988); In re Iaquinta, 95 B.R. 576 (N.D.Ill.1989); In re Cardillo, 39 B.R. 548 (Bankr.D.Mass.1984); In re Thomas, 36 B.R. 851 (Bankr.W.D.Ky.1984); In re Nelson, 35 B.R. 766 (Bankr.N.D.Ill.1983); In re Scotella, 18 B.R. 975 (Bankr.N.D.Ill.1982); In re McCloud, 7 B.R. 819 (Bankr.M.D.Tenn. 1980).

This position has been criticized as too pro-creditor. As one Court stated:

[T]o allow a creditor to have a debt owed him found nondischargeable merely upon a showing that the debtor acted intentionally, without just cause or excuse, and without further inquiring into the debtor’s intent or knowledge of the wrongful nature of his conduct, at least circumstantially, can cause severe harm to an innocent debtor.

In re Horldt, 86 B.R. 823, 827-28 (Bankr.E.D.Pa.1988).

The second group of cases hold that malice cannot be found constructively, but must be evidenced by a specific intent to injure the creditor. See, e.g., In re Hawley, 65 B.R. 241 (D.Colo.1986); In re Lane, 76 B.R. 1016 (Bankr.E.D.Pa.1987); In re Gallaudet, III, 46 B.R. 918 (Bankr.D.Vt.1985); Matter of McLaughlin, 14 B.R. 773 (Bankr.N.D.Ga.1981); In re Hodges, 4 B.R. 513 (Bankr.W.D.Va.1980).

Almost all of this latter group of cases find the debt dischargeable. As one court has stated:

[T]o require a creditor to establish that the debtor disposed of the collateral with the specific intent of injuring the creditor imposes a difficult, if not insurmountable, burden upon the creditors.

In re Horldt, 86 B.R. 823, 827 (Bankr.E.D.Pa.1988). See also In re Guy, 101 B.R. 961, 982 (Bankr.N.D.Ind.1988) (“[Mjost conversions of property are made to reduce financial strain and reduce expenses rather than to injure the creditor’s interest specifically”).

A third position — an intermediate position — is a “totality of the circumstances” approach. These courts allow circumstantial evidence to determine the question of malice. Only two courts have adopted this approach. See In re Horldt, 86 B.R. 823 (Bankr.E.D.Pa.1988); Matter of Burdick, 65 B.R. 105 (Bankr.N.D.Ind.1986).

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Bluebook (online)
109 B.R. 14, 1989 Bankr. LEXIS 2269, 20 Bankr. Ct. Dec. (CRR) 4, 1989 WL 158563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-deere-credit-service-v-mclaughlin-in-re-mclaughlin-nhb-1989.