Missouri Family Support Division v. McGinnis (In re McGinnis)

558 B.R. 306, 2016 Bankr. LEXIS 3452
CourtUnited States Bankruptcy Court, W.D. Missouri
DecidedSeptember 22, 2016
DocketCase No. 16-40158-13-abf; Adversary No. 16-4044-13-abf
StatusPublished

This text of 558 B.R. 306 (Missouri Family Support Division v. McGinnis (In re McGinnis)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Missouri Family Support Division v. McGinnis (In re McGinnis), 558 B.R. 306, 2016 Bankr. LEXIS 3452 (Mo. 2016).

Opinion

MEMORANDUM OPINION

Arthur B. Federman, Bankruptcy Judge

The Missouri Department of Social Services, Family Support Division (the “DFS”), filed this adversary proceeding against Debtor-Defendant Lisa Marie McGinnis, asking that an alleged debt for overpayment of food stamp assistance be declared nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(2)(B). For the reasons that follow, the Clerk of Court will be ordered to enter Judgment in favor of Debtor-Defendant Lisa Marie McGinnis.

Debtor Lisa McGinnis and her now-ex-spouse, Scott McGinnis, were married in 1992. They have five children together. On October 21, 2005, at a time when Lisa and Scott were living together, they made an [307]*307Application for Food Stamp Benefits with the DFS. The Application listed themselves and the five children as members of the household. At that time, Lisa was not employed, and Scott reported wages of • $1,382.04 per month. Based on this income and the other financial information supplied by the McGinnises, the DFS provided the McGinnises with food stamp benefits in the amount of $259 per month for November and December 2005, and $722 per month for January through April 2006.

The DFS representative testified that, when a person applies for food stamp benefits, the applicant is informed that he or she must report any change of circumstances to the DFS. According to the DFS representative, Lisa reported on January 4, 2006, that Scott had left the residence, which would explain why her benefits jumped from $259 per month to $722 per month. In addition, a food stamp recipient apparently must reapply every six months, and provide updated financial information on the new application.

Thus, on April 13, 2006, Lisa again applied for food stamp benefits for herself and five children, reporting that Scott was no longer a member of the household. Attached to this Application was a statement, handwritten and signed by Scott, stating that he was no longer living at the home; that he was living with friends; and that he was paying Lisa’s rent at $850 per month. Lisa listed no income from wages or other sources. Based on the financial information supplied, Lisa continued to receive $722 per month in food stamps from May through October 2006.

On October 25, 2006, Lisa again applied for food stamp benefits for herself and her five children, listing no income, and again not listing Scott as a member of the household. Based on the household financial information submitted, Lisa received food stamp benefits in the amount of $738 per month from November 2006 through April 2007.

On April 30, 2007, Lisa applied for food stamp benefits for herself and five children, listing no income, and again not listing Scott as a member of the household. Based on the information provided, Lisa received food stamp benefits of $738 per month from May through September 2007, and $772 per month in October 2007. Although the DFS submitted into evidence no Application for October 2007, the evidence showed that Lisa continued to receive food stamp benefits in the amount of $772 from November 2007 through May 2008. . ■.

Meanwhile, sometime in late 2007 or early 2008, the DFS became suspicious that Scott had actually been living in the home, and opened an investigation, discussed more fully below. As a result of that investigation, the DFS determined that Scott had been a household member during the time Lisa reported that he was not; that he had wages from employment; and that Lisa had been overpaid food stamp benefits totaling $19,436 as a result of the alleged misrepresentations.

On September 30, 2011, the DFS sent Lisa a letter informing her of the results of the investigation. It asked her to sign a promissory note promising to repay the $19,436 overpayment. It also asked her to sign a waiver which would disqualify her from the food stamp program for a' period of twelve months for committing a violation of the program. Lisa did not respond to the letter. Therefore, on January 20, 2012, the DFS issued a Decision and Order disqualifying Lisa from the food stamp program for twelve months based on her alleged misrepresentations that Scott was not living at the home.

Lisa testified that she and Scott were finally divorced in 2014, after a brief re[308]*308union between 2010 and 2011. Sometime after 2008, Lisa obtained an Associate’s Degree in Science and began working as an emergency medical technician. Scott has been ordered to pay child support, but has not been consistent in doing so.

In February 2014, .the DFS intercepted an income tax refund in the amount of $7,133, leaving a balance owed of $12,303. Other than that interception, Lisa has made no payments to the DFS on the overpayment assessment.

Lisa filed a Chapter 13 bankruptcy case on January 25, 2016. The DFS filed this adversary proceeding seeking a determination that its $12,303 assessment for food stamp benefits be declared nondischargeable under § 523(a)(2)(A) and § 523(a)(2)(B).

Nondischargeability Under § 523(a)

Section 523(a)(2)(A) of the Bankruptcy Code provides that a discharge under § 727 does not discharge an individual debtor from any debt “for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by ... false pretenses, a false representation, or actual fraud.”1 In order to prevail on a nondischargeability cause of action for actual fraud under § 523(a)(2)(A), the DFS must prove, by a preponderance of the evidence: (1) that Lisa made representations; (2) that at the time she made the representations she knew they were false; (3) that she made such representations with the intention and purpose of deceiving the DFS; (4) that the DFS justifiably relied on such representations; and (5) that the DFS sustained the alleged loss and damages as a proximate result of the representation having been made.2

Section 523(a)(2)(B) excepts from discharge any debt—

(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by—
(B) use of a statement in writing—
(i) that is materially false;
(ii) respecting the debtor’s or an insider’s financial condition;
(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive ....3

Again, the person objecting to the discharge of a debt must prove each and every element of the discharge exception by a preponderance of the evidence.4

The DFS asserts that Lisa made both verbal and written misrepresentations that Scott was not living in the home and, therefore, the debt should be nondis-chargeable under both subparagraphs (A) and (B).

Collateral Estoppel

At the outset, although the DFS did not initially plead that collateral estoppel applies, DFS’s counsel indicated at a pretrial conference that the DFS planned to make such an argument, based on its Decision and Order disqualifying Lisa from the food stamp program. At that pretrial confer

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Bluebook (online)
558 B.R. 306, 2016 Bankr. LEXIS 3452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/missouri-family-support-division-v-mcginnis-in-re-mcginnis-mowb-2016.