Northmark Bank v. Herzog (In re Herzog)

140 B.R. 936, 1992 Bankr. LEXIS 827
CourtDistrict Court, D. Massachusetts
DecidedMay 28, 1992
DocketBankruptcy No. 91-15952-WCH; Adv. No. 91-1602
StatusPublished
Cited by2 cases

This text of 140 B.R. 936 (Northmark Bank v. Herzog (In re Herzog)) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northmark Bank v. Herzog (In re Herzog), 140 B.R. 936, 1992 Bankr. LEXIS 827 (D. Mass. 1992).

Opinion

MEMORANDUM DECISION ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF DEBT

WILLIAM C. HILLMAN, Bankruptcy Judge.

Northmark Bank (“Bank”) brought this action against the Debtor, Leslie J. Herzog, [937]*937Jr. (“Herzog”) seeking a determination that certain debts due to it are nondischargeable under 11 U.S.C. 523(a)(2)(B). After a trial on the merits, the Court finds that the debts owed to the Bank are dischargeable.

Findings of Fact

Herzog began his involvement in the real estate industry working as a construction worker and purchasing properties individually and through a partnership after he graduated from Winchester High School. In January of 1985, he and John Nelson formed the real estate partnership, Strat-ford Management Associates (“Stratford”).

Stratford eventually acquired many pieces of real estate and corresponding liabilities. Herzog signed personal guarantees for many of the loans used to finance these acquisitions. In February of 1988, the partners began to quarrel and Nelson eventually sued Herzog in July of 1990. Pursuant to a stipulation, the partnership was dissolved and the lawsuit dismissed in December of 1990.

In June of 1988, Herzog decided to seek financing for certain commercial real estate ventures. Having conducted business with the Winchester Co-operative Bank (“Winchester”) in the past he sought financing there. He was reminded, however, that Winchester did not engage in commercial lending. The president of Winchester referred Herzog to the president of the Bank.

Thereafter, Herzog met with the president of the Bank, Ms. Jane Walsh (“Walsh”). Based on a conversation between the two bank presidents, Walsh stated that she knew that Herzog was seeking financing to acquiring a commercial building in Winchester. There is some dispute as to when Herzog offered his personal financial statement at the initial meeting.

Walsh testified that the Bank’s practice with respect to loans is to interview the client, review the credit analysis with the Credit Committee, make the loan decision, and then maintain business development contact. The Bank requires a financial statement and no other information when considering a commercial loan.

After receiving Herzog’s first financial statement, which was dated April 1, 1988, Walsh testified that she did not look into any references because Herzog had been referred by a bank president. The Bank did run a credit bureau check on Herzog which indicated a good credit history. The Bank made no other inquiries with respect to Herzog’s financial condition.

On the first financial statement, Herzog represented that he was the sole title holder of several properties. In fact, he owned most of the properties with his wife. He also omitted the outstanding liabilities of Stratford for which he was liable. He determined his equity in Stratford by totaling the market value of the Stratford properties, subtracting the outstanding mortgages, and dividing the total by two. He made mathematical errors. He listed, without further elaboration, a salary of $100,000.00 and a real estate income of $50,000.00.

Beginning in September of 1988 and continuing through July of 1989 the Bank loaned Herzog approximately $2,000,-000.00. Herzog used many of these loans to purchase income producing properties from Stratford. The Bank took first mortgages on these properties after receiving appraisals and income statements on each one. The unsecured loans were lines of credit. In September or October of 1989, Herzog began defaulting on his loans.

In November of 1989 the Bank and Her-zog entered into discussions regarding the status of the loans. Herzog represented that he was attempting to liquidate his properties. The Bank required, and Her-zog submitted, a second financial statement that had been prepared at that same time. This statement was as sparse as the first. After reviewing the second statement, however, the Bank agreed to forbear from taking any action against the properties. The Bank also extended the line of credit that it had approved in September of 1988 from $100,000.00 to $150,000.00. For this extension, the Bank took a first mortgage on a piece of land in Winchester and second mortgages on other pieces of property.

In October of 1990, Herzog sought to refinance his personal residence. Winchester agreed provided it retained its first position with respect to the total indebted[938]*938ness. Before the refinancing, Winchester was owed $70,000.00. As part of the refinancing it loaned Herzog an additional $200,000.00.

The Bank agreed to subordinate to the refinanced amount but prior thereto required that Herzog give a third financial statement. Herzog provided a statement, similar to the others, giving his financial condition as of January of 1990. The Bank thereafter agreed to subordinate to Winchester.

For the subordination, the Bank received an interest in a $65,000.00 certificate of deposit that Herzog had established at the Bank and an interest in two Corvette automobiles worth a total of $100,000.00. At this time, the residence had an appraised value of $750,000.00.

In July of 1991, Herzog filed his bankruptcy petition.

Discussion

For a debt to be deemed nondischargeable the moving party must show that the debt was:

(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 or services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive. 11 U.S.C. § 523(a)(2)(B).

Materially False Statement Respecting Debtor’s Financial Condition

A financial statement is materially false if it “paints a substantially untruthful picture of a financial condition by misrepresenting information of the type which would normally affect the decision to grant credit ... A financial statement which markedly overstates the value of a person’s assets, so as to distort his financial picture must be considered materially false.” Merchants Nat’l Bank v. Denenberg (In re Denenberg), 37 B.R. 267, 271 (Bankr. D.Mass.1983). Both Herzog’s enormous outstanding liabilities and the manner in which his properties were held were certainly items that would affect a decision whether to grant credit. The Court finds that the three financial statements were materially false.

Reasonable Reliance

The Court considers the third element, reasonable reliance, to be the thorniest issue. There is no doubt, based upon Walsh’s testimony, that the Bank, either in whole or in part, relied on the financial statements. The Court questions, however, whether such reliance was reasonable.

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Bluebook (online)
140 B.R. 936, 1992 Bankr. LEXIS 827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northmark-bank-v-herzog-in-re-herzog-mad-1992.