Nakonetschny v. Rezykowski (In re Rezykowski)

493 B.R. 713
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedJune 19, 2013
DocketBankruptcy No. 11-19726 ELF; Adversary No. 12-0309 ELF
StatusPublished
Cited by10 cases

This text of 493 B.R. 713 (Nakonetschny v. Rezykowski (In re Rezykowski)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nakonetschny v. Rezykowski (In re Rezykowski), 493 B.R. 713 (Pa. 2013).

Opinion

OPINION

ERIC L. FRANK, Chief Judge.

I. INTRODUCTION

In 2008, Debtor Danielle Rezykowski (“the Debtor”) purchased a retail apparel store known as Circles, LLC (“Circles”) from Robin Nakonetschny (“the Plaintiff’). The Debtor signed a promissory note for most of the purchase price. The note was secured by the assets of the business. In approximately late 2010 and early 2011, the Debtor conducted a “blow out” sale and closed the business. The Debtor opened a separate account for the proceeds from the blow out sale, but later took the money for herself, ostensibly for her own back wages. Shortly thereafter, the Debtor filed for individual chapter 7 bankruptcy relief.

The Plaintiff instituted this adversary proceeding against the Debtor requesting a determination that the Debtor’s use of the proceeds from the blow out sale gave rise to a debt for willful and malicious injury that is excepted from discharge under 11 U.S.C. § 523(a)(6).

The crux of this dispute is whether the Debtor’s payment to herself caused a “willful and malicious” injury to the Plaintiff; i.e., whether the Debtor’s conduct was wrongful and whether she purposefully inflicted the injury or acted in such a manner that she was substantially certain that injury would result. See In re Singer, 2010 WL 3732944, at *5 (D.N.J. Sept. 17, 2010) (citing In re Conte, 33 F.3d 303, 305 (3d Cir.1994)).

Based on the evidence presented at trial, I find, by a preponderance of the evidence, that: the Debtor’s appropriation of the sale proceeds was wrongful; she caused a willful and malicious injury to the Plaintiffs property rights; and the debt to the Plaintiff arising therefrom is nondischargeable under § 523(a)(6).

II. PROCEDURAL HISTORY

The Debtor filed her chapter 7 bankruptcy petition on December 23, 2011. The § 341 meeting of creditors was set for January 25, 2012. Thus, the deadline for filing objections to discharge or discharge-ability was March 26, 2012. See Fed. R. Bankr.P. 4007(c).1

[717]*717The Plaintiff filed a complaint in the main bankruptcy case entitled “Third Party Complaint” on March 26, 2012. (Ex. P-2). On April 13, 2013, the Plaintiff initiated this adversary proceeding by filing the same complaint (“the Complaint”). (Ex. D-5).

In the preamble to the Complaint, the Plaintiff asserted an objection to the Debt- or’s discharge under § 727(a) in the Complaint. (Ex. D-5). In the numbered counts of her Complaint, however, the Plaintiff cited only to § 523(a)(2) and (a)(6). (Id.).

The Debtor filed a motion to dismiss the Complaint, listing numerous deficiencies, including legal insufficiency and lack of service of process. The parties settled the motion by allowing the Plaintiff leave to file an amended complaint. The Plaintiff filed an amended complaint (“the Amended Complaint”) on July 12, 2012, (Doc. #8), asserting claims under 11 U.S.C. § 727(a)(2), (a)(3) and (a)(5). The Debtor filed her Answer to the Amended Complaint on June 18, 2012. (Doc. # 10).

Trial of this adversary proceeding was held on February 1, 2013. At the conclusion of the trial, the Plaintiff abandoned her objections to the Debtor’s discharge under § 727(a). (N.T. 10:53:41).2 The parties agreed, however, to permit the Plaintiff to amend her Amended Complaint orally to set forth a claim for nondis-chargeability under 11 U.S.C. § 523(a)(6). (N.T. 10:50:00). As a result, the only claim remaining is the Plaintiff’s request the subject debt be excepted from discharge pursuant to § 523(a)(6). (See Doc. # 26).

Post-trial briefing was completed on March 7, 2013.

III. FINDINGS OF FACT

The Business Sale Transaction

1. In August 2005, Circles was organized as a limited liability company. (Ex. P-1 at 42).

2. Circles operated a retail children’s clothing store at 5 South Main Street, Doylestown, Pennsylvania. (Id. at 14).

3. Sometime prior to April 2008, the Plaintiff entered into negotiations for the sale of Circles and specified business assets to the Debtor.

4. On April 16, 2008, the parties closed on the sale of Circles. The sale transaction was documented by several contracts, which included, inter alia, a business purchase agreement, promissory note, and security agreement. (See Ex. P-1).

5. The Business Purchase Agreement (“the BPA”) provided for the sale of Circles by the Plaintiff to the Debtor for a purchase price of $58,244.67. (See id. at 13-26). Attached as exhibits to the BPA were a list of fixtures, assets and the inventory included in the sale. (Id. at 22).

6. As part of the recitals, the BPA stated that the Debtor “wishes to operate a retail children’s clothing store and desires to acquire the business.” (Id. at 14).

7. At the closing, the Debtor paid a down payment of $1,000.00 and executed a “Secured Promissory Note” (“the Note”) in favor of the Plaintiff, in the principal amount of $57,244.67, with an interest rate of nine (9) percent. (Id. at 28-31).

8. The principal amount of the Note was to be repaid over sixty (60) months, beginning June 15, 2008. The initial six (6) monthly payments under the Note were at a reduced rate, with the balance of [718]*718the payments at $1,293.21 per month. (Id. at 28).

9. Under the Note, the failure to make any payment of principal or interest within ten (10) days of the due date constituted a default. Upon default, the holder had the right to accelerate the Note and declare all amounts under the Note immediately due. (Id.).

10. The Note included a confession of judgment clause which allowed the Plaintiff to confess judgment in the event of the Debtor’s default. (Id.).

11. In connection with Note, the Debt- or executed a “Security Agreement” (“the Security Agreement”) for the repayment of the Note. (Id. at 32-37).

12. In the Security Agreement, the Debtor granted the Plaintiff a security interest in the business assets of the retail children’s clothing store, including the inventory (“the Collateral”). (See id. at 32, 34).3

13. The Security Agreement defined “Collateral” to include, inter alia:

substitutions, replacements, additions, accessions, proceeds, products to or of any of the foregoing, including, but not limited to ... any and all Accounts, General Intangibles, Negotiable Collateral, Inventory ... money, deposits, accounts or other tangible or intangible property resulting from the sale or other disposition of the Accounts, General Intangibles, Negotiable Collateral, Inventory ... or any portion thereof or interest therein and the proceeds thereof.

(Id.

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Cite This Page — Counsel Stack

Bluebook (online)
493 B.R. 713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nakonetschny-v-rezykowski-in-re-rezykowski-paeb-2013.