McKell v. Griffith (In re Griffith)

568 B.R. 444
CourtUnited States Bankruptcy Court, D. Utah
DecidedMarch 7, 2017
DocketBankruptcy Number: 15-27071; Adversary Proceeding No. 15-02188
StatusPublished
Cited by1 cases

This text of 568 B.R. 444 (McKell v. Griffith (In re Griffith)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKell v. Griffith (In re Griffith), 568 B.R. 444 (Utah 2017).

Opinion

KEVIN R. ANDERSON, U.S Bankruptcy Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The matter before the Court is the Plaintiffs Complaint for determination of dischargeability of a debt under 11 U.S.C. § 523(a)(2)(A)-(B). A trial was held on January 18, 2017 at 9:00 a.m. The Plaintiff, Robert McKell, and his counsel, Joshua [448]*448Lee, appeared. Likewise, the Defendant, Kevin Griffith, appeared with his counsel, Steven Rogers and Nicholas Russell. After considering the evidence, including facts as stipulated to or admitted by the parties, as adduced from testimony, or as established by the introduction of exhibits, and after assessing the credibility of the witnesses, considering the arguments of counsel, and conducting an independent review of the law, the Court is prepared to rule and now issues its findings of fact and conclusions of law. Any of the findings of fact herein are deemed, to the extent appropriate, to be conclusions of law, and any of the conclusions of law herein are similarly deemed to be findings of fact, and they shall be equally binding as both.

I.INTRODUCTION

In this case, the Debtor learned of a potentially lucrative business investment but needed immediate cash before the window of opportunity closed. The Debtor approached a social and business acquaintance (the “Creditor”) to lend him $25,000 with the promise of a $50,000 repayment within 30 days. To “secure” the loan, the Debtor gave the Creditor a warranty deed on residential property. The Debtor represented there was sufficient equity in the property to fully satisfy the loan, when in fact a trust deed fully encumbered the property. The investment failed, no payments were made on the loan, but the Creditor never recorded the warranty deed. Five years later, with the Debtor now in bankruptcy, the Creditor asks this Court to declare the debt nondischargeable based on the Debtor’s misrepresentation of equity in the property. The Debtor counters that he did not know the trust deed had been recorded, and that his former employer had agreed to pay off the note associated with the trust deed; thus, at the time of the loan, the Debtor had a genuine and reasonable belief that there was sufficient equity in the property to satisfy the obligation. For the reasons set forth below, the Court finds that the debt is dischargeable.

II. JURISDICTION, NOTICE, AND VENUE

The Court has jurisdiction over this contested matter pursuant to 28 U.S.C. § 1334(a)-(b) and 28 U.S.C. § 157(b). The Plaintiffs request for a determination as to the dischargeability of a particular debt is a core, proceeding under 28 U.S.C. § 157(b)(2)(I), and the Court may enter a final order. Venue is appropriate in this District under 28 U.S.C. §§ 1408 and 1409, and notice of this hearing was properly given to all parties in interest.

III. FINDINGS OF FACT

1) The Loan

Shortly before October 11, 2011, Debt- or/Defendant Kevin Robert Griffith (the “Debtor”) approached a social and business acquaintance, Robert McKell (“McKell”), with a short-term, overseas investment opportunity involving the production of identification cards for African immigrants seeking entry into European countries (the “ID Card Venture”).1 The Debtor asked McKell to lend him $25,000 to cover production costs but stated they must act quickly or the opportunity would be lost. Based on the profit potential of the ID Card Venture, the Debtor offered McKell a 200% return within one month.2 [449]*449McKell ultimately agreed to loan the money, and on October 11, 2011, the parties met at McKell’s bank to negotiate and complete the loan (the “Loan”).3 At the bank, McKell and the Debtor reviewed four documents: (1) a promissory note; (2) a warranty deed; (3) a handwritten document; and (4) a property tax report.4 The Debtor’s representations in these documents are at the core of this proceeding,

a) The Promissory Note & Warranty Deed

The promissory note provided that McKell would loan the Debtor $25,000,5 and in return, the Debtor would repay McKell $50,000 by November 10, 2011 (the “McKell Note”).6 To secure the loan, the McKell Note required the Debtor to “pledge, assign, and/or grant” to McKell the residential real property located at 4361 Vrain Street, Denver, Colorado 80212 (the “Vrain St. Property” or the “Property”).7 The McKell Note contains the following representation: “Maker [the Debtor] warranties that this property is owned by Maker and is free and clear of all encumbrances.” 8 The McKell Note provided that in the event of default, “[McKell] shall have the remedy of filing the Warranty Deed that has the same date as this document, and taking full ownership of the property listed herein as Collateral.”9 Consistent therewith, the Debtor signed and delivered to McKell a warranty deed to the Vrain St. Property (the “Warranty Deed”).10

b) The Handwritten Document & the Tax Assessment

Also at the bank, the Debtor wrote out and signed a declaration regarding equity in the Property (the “Equity Declaration”).11 The Equity Declaration states: “Equity in home referenced in this transaction belongs to Kevin R. Griffith and fully secures this loan dated 11 October 2011 between the ‘Parties’, Kevin R. Griffith and Robert C. McKell.”12 The Debtor testified that he intended the phrase “fully secures” to mean that he owned sufficient equity in the Property to secure the McKell Note. McKell testified that he thought the Debtor prepared the Equity Declaration to overcome McKell’s reluctance to loan the money.

While at the bank, McKell also had the Debtor review and initial a print-out from the Denver County Assessor’s Office re[450]*450garding the Vrain St. Property (the “Tax Assessment”).13 The Tax Assessment shows that it was printed on October 10, 2011, at 2:59 p.m., which is the day before the Loan. The Tax Assessment values the Property at $288,200 and lists the names of “GRIFFITH, KEVIN R & SUSAN.”14 Susan Griffith is the Debtor’s ex-spouse. The Debtor testified that McKell asked him to prepare the Equity Declaration because the Tax Assessment listed Susan Griffith as a co-owner of the Property.

After completing their negotiations and reviewing and signing the documents, McKell delivered to the Debtor the sum of $25,000.

2) The Debtor Defaults on the McKell Note

The ID Card Venture did not pan out, and the Debtor did not repay the McKell Note on November 10, 2011.15 At trial, McKell and the Debtor gave different accounts as to what happened thereafter,

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Bluebook (online)
568 B.R. 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckell-v-griffith-in-re-griffith-utb-2017.