Miller v. Beehner (In re Beehner)

76 B.R. 265, 1984 Bankr. LEXIS 5755
CourtDistrict Court, N.D. New York
DecidedMay 2, 1984
DocketBankruptcy No. 83 00599; Adv. No. 83 0150
StatusPublished
Cited by1 cases

This text of 76 B.R. 265 (Miller v. Beehner (In re Beehner)) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Beehner (In re Beehner), 76 B.R. 265, 1984 Bankr. LEXIS 5755 (N.D.N.Y. 1984).

Opinion

LEON J. MARKETOS, Bankruptcy Judge.

In this adversary proceeding, Steven F. Miller (hereinafter, the Plaintiff) seeks to have declared nondischargeable a debt in the amount of $16,235.91, plus interest, incurred by Christopher D. Beehner (hereinafter, the Debtor). Having heard testimony from the Plaintiff and Debtor, and having reviewed the pleadings, testimony and the evidence adduced at the trial, held on December 19, 1983, the Court makes the following:

FINDINGS OF FACT

1. On May 18,1983, the Debtor filed for liquidation relief from creditors pursuant to Chapter 7 of Title 11 U.S.C. (hereinafter, the Code). Thereafter, Plaintiff filed the instant adversary on July 12, 1983.

2. Plaintiff and Debtor became acquainted while both were employed at a company entitled “Anarin Microwave” (hereinafter, Anarin). Plaintiff, who was hired in approximately 1972, was an assistant to the president of Anarin, while the Debtor, who was hired in April 1980, was employed as a cost accountant. The parties met once a week as their job duties required them to work together on the company inventory.

3. Debtor is a graduate of the University of New Hampshire and holds a degree in accounting. He completed approximately sixty (60) accounting hours in order to obtain his degree. His salary at Anarin was $15,500.00 per annum. While employed at Anarin, Plaintiff taught the Debtor about trading stock options.

4. In March 1982, Plaintiff, after ten (10) years employment at Anarin, left Ana-rin, and started his own stock brokerage firm called “Individual Securities” (hereinafter, Securities). Securities was operated as a sole proprietorship out of the Syracuse area; it was part of a Long Island franchise operation. Plaintiff and Debtor maintained contact after Plaintiffs departure from Anarin. Debtor called Plaintiff on a daily basis to obtain price quotes for certain stock options or trades.

5. There was uncontradicted testimony of the Debtor that Plaintiff repeatedly asked Debtor to become employed as a broker for Securities. Debtor testified that Plaintiff asked Debtor to work for Securities as a broker on at least six (6) separate occasions. The Debtor states he initially refused Plaintiffs requests and informed Plaintiff he had minimal financial resources. However, after these repeated attempts, Debtor agreed, in November 1982, to become a broker for Securities.

6. As a prerequisite to commencing actual stock trading with Securities, the Debtor was required to furnish a signed financial disclosure statement. (Plaintiffs Exhibit #7). This disclosure statement was signed by the Debtor on November 5, 1982. The form was required to be submitted for approval to Dominick Investor Services (hereinafter, Dominick) located on Wall Street in New York City. Dominick was the firm utilized by Securities to make the actual stock trades.

7. There is sharply conflicting testimony as to how the disclosure statement was actually completed. Plaintiff testified that he completely filled out the form in about five (5) minutes, pursuant to information provided by the Debtor, before the Debtor signed the form. However, in contrast, Debtor testified the Plaintiff instructed him to sign the form first, which he did, and then Plaintiff thereafter, filled in the information which Dominick required in order to qualify Debtor as a trader.

8. The completed form was submitted to and processed by Dominick. In Dominick’s usual course of business, it sent a copy of the disclosure form to the Debtor [267]*267requesting verification of any inaccuracies. (Plaintiffs Exhibit 2.) The form indicated the Debtor had $35,000.00 yearly employment income, $20,000.00 other yearly income, and a net worth of $80,000.00. Debt- or testified that upon review of the form, although the notice requested Debtor to notify Dominick directly, the Debtor notified Plaintiff of the inaccuracies and the Plaintiff informed him the inaccuracies did not matter, and “that is what they [Dominick] want to see anyway”. This testimony was firmly rebutted by the Plaintiff who denied ever being notified of any errors or misstatements on the financial disclosure form.

9. Plaintiff stated it was Securities’ practice to not attempt to verify financial information provided by applicants if the size of the individual transactions to be made were less than $20,000.00. Debtor’s individual transactions were always less than $20,000.00.

10. Debtor testified that although he did not have much money at the time the parties agreed to trade together, he stated he had “access” to money through his family and friends.

11. While both parties were still at Ana-rin, the Plaintiff hired the Debtor’s superi- or at an annual salary of less than $20,-000.00. In response to a question propounded to Plaintiff on cross examination, the Plaintiff stated it did not strike him as “odd” that the Debtor could list $35,000.00 annual income on the disclosure statement, even though, while just recently at Anarin, Plaintiff had hired Debtor’s superior at a much lower yearly salary. Plaintiff explained the apparent discrepancy by stating that he thought the Debtor was “moonlighting” at another job.

12. Plaintiff never asked Debtor to explain the $35,000.00 income figure. Plaintiff never contacted Anarin to attempt to verify Debtor’s stated income. Plaintiff never inquired into the source of the Debt- or’s “other income” listed on the disclosure form at $20,000.00. Plaintiff did nothing to attempt to verify the information provided in the disclosure statement.

13. Plaintiff testified he relied on the disclosure statement when he decided to grant Debtor the right to trade options with Securities.

14. The parties entered into a series of stock option transactions. The plaintiff testified the Debtor bounced a check which was to be used to pay for the first trade. However, the Debtor subsequently submitted payment to Dominick. Debtor explained he failed to “transfer” the money quick enough. Thereafter, the subject debt arose from what the parties both testified to as the “Honeywell” trade. This trade occurred on April 25, 1983 and it consisted of two (2) parts totaling $16,235.91. After payment was not received in a timely fashion from the Debtor, Plaintiff notified him of the delinquency, but the Debtor assured him payment was forthcoming. In addition, the Plaintiff testified that the Debtor told him he mailed the check directly to Dominick. Debtor never made the payment and the Plaintiff was personally required to pay the $16,235.00 debt. Plaintiff testified the Debtor never told him he had no money, nor did Debtor allow Plaintiff an opportunity to mitigate damages by informing him that he could not pay. Plaintiff contends he learned for the first time that Debtor could not pay for the Honeywell trade nearly two (2) weeks after the original sale, on approximately May 9, 1983.

15. Plaintiff stated he did not liquidate the account, as per company rules on default, as he trusted the Debtor based on their “friendship”.

16. The Debtor did not declare any of the $16,235.91 debt as a loss on his tax return for the year in question.

17. The Debtor filed a prior petition in bankruptcy on February 24, 1982, which was dismissed for failure to appear at his discharge hearing. This fact was unknown to Plaintiff at the time the parties started trading together. Plaintiff contends that if Debtor had informed him of this fact, he would not have extended Debtor the right to trade.

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Cite This Page — Counsel Stack

Bluebook (online)
76 B.R. 265, 1984 Bankr. LEXIS 5755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-beehner-in-re-beehner-nynd-1984.