Johnson v. Loomis (In re Loomis)

558 B.R. 214
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedSeptember 26, 2016
DocketCase No. 15-53006; Adv. Pro. No. 15-2167
StatusPublished
Cited by2 cases

This text of 558 B.R. 214 (Johnson v. Loomis (In re Loomis)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Loomis (In re Loomis), 558 B.R. 214 (Ohio 2016).

Opinion

MEMORANDUM OPINION AND ORDER REGARDING ADVERSARY COMPLAINT TO DETERMINE DISCHARGEABILITY (DOC. NO. 1)

CHARLES M. CALDWELL, Judge

This Memorandum Opinion and Order serves as the Court’s findings of fact and conclusions of law for the adversary proceeding filed by Richard W. Johnson (Plaintiff) against William A. and Katrina Y. Loomis (Defendants). It is based upon Section 523(a)(2)(A), (a)(2)(B), (a)(4), and (a)(6) of the United States Bankruptcy Code (Code). Plaintiff contends that two business loans totaling $8,000.00, and three credit card debts, are excepted from discharge. Considering the testimony and documents received into evidence, the Court finds and concludes that a portion of the debts are non-dischargeable. A brief history and bases for this ruling follow.

Plaintiff retired from a heating, ventilation, air-conditioning and cooling company (HVAC) after 38 years. Plaintiffs monthly retirement includes: Social Security ($1,760.00), a pension ($422.00), and rental income ($350.00). After Plaintiff retired, he attended the American School of Technology (AST), and earned HVAC, Refrigerant Handling, and EPA certifications. AST hired Plaintiff as an instructor before graduation, where he taught for approximately three years. Plaintiff and William A. Loomis (Defendant) met in 2008 while teaching HVAC courses at AST, and during that time became friends. Although AST later fired Defendant, the friendship endured, and indeed led to the financial losses suffered by Plaintiff.

Approximately a year later, on September 11, 2009, Defendant and his wife, Katrina Y. Loomis formed Restaurant Services of Ohio LLC (Restaurant Services), which provided HVAC and maintenance services to restaurants, such as Burger King. Defendant occasionally called upon Plaintiff to help troubleshoot HVAC problems for Restaurant Services. By 2011 Plaintiff started helping Restaurant Services complete work orders on a regular basis. Plaintiff enjoyed working, but never accepted payment, for fear that he would lose his Social Security benefits. However, while working on jobs, Plaintiff routinely purchased parts on his personal credit card, and then was reimbursed by Defendant.

As Restaurant Services began to grow, it became difficult for Defendant to operate out of his truck, and complete paperwork at home. As a result, he decided to lease a commercial building. In January, 2012, Defendant told Plaintiff he needed a $2,000.00 loan to pay a security deposit for commercial space. In response, on January 12, 2012, Plaintiff wrote a $2,000,00 check payable to Restaurant Services. Defendant orally agreed to pay $500.00 a month on the loan. However, twelve days prior to the loan, Restaurant Services’ checking account balance was $0.81, and at the time of the loan, the balance was $1,083.24.

On January 13, 2012, Defendant deposited the $2,000.00 check in the Restaurant Services’ ' account. Defendant acknowledged that he used that account for both business, and personal household expenses. Numerous transactions in the account were consumer purchases, including gas, food, and clothing. Most significantly, the bank statement for this period did not show the payment of a $2,000.00 security deposit.

After receiving the $2,000.00 loan, and in late January 2012, Defendant told Plaintiff that another HVAC company was going out of business. Further, Defendant told [218]*218Plaintiff that he could purchase its inventory for $6,000.00. He even showed Plaintiff a listing of the items for sale. To fund this purchase Defendant asked to borrow an additional $6,000.00. In response, Plaintiff withdrew funds from his 401K account, and on January 27, 2012, wrote yet another check, this time for $6,000.00, payable to Restaurant Services.

On that same day, Defendant deposited the check into Restaurant Services’ account. However, from January 27, 2012, to February 29, 2012, many of Restaurant Services’ bank transactions involved personal consumer items, such as gas, groceries and restaurants, and included airline tickets. Most significantly, the bank statements for this period do not show the purchase of $6,000.00 in inventory.

Even after borrowing a total of $8,000.00 from Plaintiff during January 2012, Defendant asked Plaintiff in the late summer of 2012, to help apply for a business credit card so his employees could purchase parts while working on jobs. As an explanation for not obtaining the card in his name, Defendant testified that he planned to buy a home, and he did not have a good credit score. Plaintiff testified that he agreed to assist Defendant thinking he was merely a “co-signer,” and not the primary obligor. During the application process, Plaintiff shared his personal information — social security number, date of birth, and mailing address — with Defendants. After American Express approved the credit card, it mailed monthly billing statements to Plaintiffs residence. Rather than opening and reviewing the statements, Plaintiff blithely gave them to Defendant.

After receiving Plaintiff’s personal financial identity for the American Express card, Defendant used this information to open two additional credit cards, without Plaintiffs knowledge and consent. Specifically, on June 29, 2012, Defendant applied for a “General Care” card to pay for dental work, and clumsily assumed Plaintiffs identity as “Ruchard” Johnson. In opening the General Care account, Defendant, however, used his own mailing address. On December 4, 2012, he signed a sales slip on this account for dental services in the amount of $2,455.00. Plaintiff credibly testified that he had no knowledge of the account and the related charges. Indeed, since Defendant used his own mailing address to open the General Care account, Plaintiff would never receive billing statements or any other communication.

Approximately nine months later, on September 16, 2013, Defendant applied for a Bank of America credit card in the name of “Richard Johnson, Restaurant Services.” Plaintiff testified that he never authorized Defendant to use his personal financial information to apply for this third card. Plaintiff also testified that he had a personal credit card with Bank of America since 1993. Around December 2013, Plaintiff attempted to purchase gasoline using his Bank of America credit card, but the transaction was declined. Because Plaintiffs current balance was paid in full, he contacted Bank of America to inquire. Bank of America responded that he had too many outstanding credit accounts.

Surprised by this news, Bank of America referred Plaintiff to its Fraud Department. Plaintiff testified that the Department ordered a credit report, and upon receipt he met with his local bank officer to review and discuss. In addition, Plaintiff testified that during this time, he also discovered that he was the only account holder on the American Express card, and not a “co-signer.”

A review of the Credit Report shows from June 29, 2012, to September 16, 2013, Bank of America, FIA Card Services, Capital One Bank, and General Care all made credit inquiries. Plaintiff credibly testified [219]*219he was unaware of and did not authorize these inquiries. In addition, the Credit Report shows that from March 1, 2013, to December 13, 2013, The Travelers Companies, Capital One Bank USA NA, Union Workers Credit Services, Barclays Bank Delaware, and USAA Federal Savings Bank made promotional inquiries.

After all these discoveries, Plaintiff contacted the Champaign County Sheriffs Department to report identity fraud. In addition, Plaintiff called General Care, and reported the card as fraud.

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Cite This Page — Counsel Stack

Bluebook (online)
558 B.R. 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-loomis-in-re-loomis-ohsb-2016.