Nourbakhsh v. Gayden (In Re Nourbakhsh)

162 B.R. 841, 94 Daily Journal DAR 996, 94 Cal. Daily Op. Serv. 588, 1994 Bankr. LEXIS 28, 1994 WL 22312

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: January 10, 1994
• Docket: BAP No. SC-92-1615-AsRO. Bankruptcy No. 90-05884. Adv. No. 90-90529
• Status: Published

Opinions

OPINION

ASHLAND, Chief Judge:

A creditor who obtained a default judgment in a Florida State Court sued the debt- or to determine the nondischargeability of this debt pursuant to 11 U.S.C. § 523(a)(2)(A). The bankruptcy court granted the creditor’s motion for summary judgment finding that there were no genuine issues of material fact because of the collateral estoppel effect of the Florida State Court judgment. We affirm.

STATEMENT OF FACTS

The debtor Emil Nourbakhsh and his affiliated corporation, The Gold Exchange, invested in precious metals for their clients. John and Miriam Gayden placed five orders with Nourbakhsh between 1986 and 1987. Although the Gaydens paid approximately $54,188.71 for the precious metals, they received none.

On May 23, 1988 the Gaydens filed a complaint alleging fraud, civil theft, breach of contract, usury, and violations of Florida RICO statutes against Nourbakhsh and The Gold Exchange in the circuit court of the 18th Judicial Circuit of Brevard County, Florida. On July 1,1988 Nourbakhsh filed a motion to dismiss the complaint for lack of jurisdiction. On September 15, 1988 the Florida State Court denied the motion, finding that there were sufficient contacts to satisfy jurisdiction requirements.

On October 11, 1988 Nourbakhsh served answers to interrogatories. On October 28, 1988 the Gaydens successfully brought a motion for default in Florida State Court because Nourbakhsh had not served or filed an answer to the complaint within 20 days. The Gaydnes then moved for judgment after default and a hearing was held on November 9, 1988. The Florida State Court entered a judgment after default on December 15,1988 in the amount of $255,506.13. On April 2, 1990 the Superior Court of the State of California, County of San Diego entered a sister state judgment in the amount of $255,506.13.

Nourbakhsh subsequently filed a Chapter 7 petition in the United States Bankruptcy Court for the Southern District of California on July 13, 1990. The Gaydens filed a complaint to determine whether the judgment was nondischai’geable pursuant to 11 U.S.C. § 523(a)(2)(A) on October 17, 1990. On March 5,1992 the Gaydens filed a motion for summary judgment arguing that Nour-bakhsh was collaterally estopped from litigating the issue of fraud. On March 19, 1992 the bankruptcy court granted the motion for summary judgment. Nourbakhsh appeals from that decision.

ISSUES

Whether the bankruptcy court erred in finding that Nourbakhsh is collaterally es-topped from litigating the issue of fraud pursuant to 11 U.S.C. § 523(a)(2)(A) after the Florida State Court issued a default judgment against him for failing to answer a complaint alleging state law fraud.

STANDARD OF REVIEW

A bankruptcy court’s decision to grant summary judgment is reviewed de novo. Jones v. Union Pac. R.R. Co., 968 F.2d 937, 940 (9th Cir.1992); In re Baird, 114 B.R. 198, 201 (9th Cir. BAP 1990). An appellate court must determine whether the bankruptcy court correctly found that there was no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Baird, 114 B.R. at 201.

DISCUSSION

I. A Default Judgment Entered in a Florida State Court Does Not Preclude a Bankruptcy Court From Applying Collateral Estoppel to the Same Issues Alleged in a Discharge Proceeding Pursuant to 11 U.S.C. § 523

Nourbakhsh argues that the Florida State Court default judgment does not collaterally estop him from trying the issue of fraud in a bankruptcy court. The Supreme Court recently examined issue preclusion in the context of a dischargeability proceeding stating: “[w]e now clarify that collateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a).” Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755 (1991). In Grogan, the Court unanimously held that the burden of proof for discharge-ability complaints is by a preponderance of the evidence. Grogan, 498 U.S. at 287-88, 111 S.Ct. at 660. Accordingly, bankruptcy courts are required to apply the full faith and credit doctrine to dischargeability issues such as fraud. See, 28 U.S.C. § 1738.

The full faith and credit statute provides that state judicial proceedings “shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.” 28 U.S.C. § 1738; see also, Marrese v. American Academy of Orthopedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1984), reh’g denied, 471 U.S. 1062, 105 S.Ct. 2127, 85 L.Ed.2d 491 (1985). The Supreme Court in Marrese stated that the full faith and credit statute “directs a federal court to refer to the preclusion law of the State in which judgment was rendered.” Marrese, 470 U.S. at 380, 105 S.Ct. at 1331. In this case the default judgment was entered in a Florida State Court and we therefore look to Florida law to determine the elements of collateral estoppel.

The elements of collateral estoppel under Florida state law, require that: (1) the parties must be identical; (2) the issues must be identical; and (3) the matter has been fully litigated in a court of competent jurisdiction. Trucking Employees of N. Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843, 845 (Fla.1984); Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.1977); Daniel Int’l Corp. v. Better Constr., Inc., 593 So.2d 524, 527 (Fla.Dist.Ct.App.1991), review denied, Better Constr., Inc. v. Daniel Int’l Corp., 602 So.2d 941 (Fla.1992); West Point Constr. Co. v. Fidelity and Deposit Co., 515 So.2d 1374, 1376 (Fla.Dist.Ct.App.1987).

The identity of the parties element is satisfied. The state court judgment in this case was in favor of the plaintiff Gaydens and against the defendant Nourbakhsh. In the bankruptcy court, the plaintiff Gaydens sued the defendant Nourbakhsh. Similarly, the issues addressed in the state court are identical to the issues before the bankruptcy court. The elements of common law fraud under Florida law “closely mirror the requirements of 523(a)(2)(A) and, hence are sufficiently identical ... to meet ... the test for collateral estoppel.” In re Seifert, 130 B.R. 607, 609 (Bankr.M.D.Fla.1991) (quoting In re Powell, 95 B.R. 236 (Bankr.S.D.Fla.1989), aff'd, 108 B.R. 343 (S.D.Fla.1989), aff'd without opinion, 914 F.2d 268 (11th Cir.1990).

Finally, the issue of fraud was determined and fully litigated in a Florida State Court pursuant to Florida state law. We recognize the considerable divergence in the courts with respect to whether the entry of a default judgment is tantamount to having a matter “actually litigated.” Compare, e.g., In re McMillan, 579 F.2d 289 (3d Cir.1978); and Spilman v. Harley, 656 F.2d 224 (6th Cir.1981); with In re Marsowicz, 120 B.R. 602 (Bankr.S.D.Fla.1990); In re Heuser, 127 B.R. 895 (Bankr.N.D.Fla.1991); In re Seifert, 130 B.R. 607 (Bankr.M.D.Fla.1991); and In re Arguez, 134 B.R. 55 (Bankr.S.D.Fla.1991). However, we do not need to analyze the standard in other jurisdictions for persuasive authority. The Supreme Court in Marrese specifically stated that the full faith and credit statute directs a federal court to refer to the preclusion law of the State in which the judgment was rendered. Marrese, 470 U.S. at 380, 105 S.Ct. at 1331. Accordingly, only an analysis of Florida’s preclusion law is relevant to the outcome in this case.

In Florida, “a default judgment conclusively establishes between the parties ... the truth of all material allegations contained in the complaint in the first action and every fact necessary to uphold the default judgment, but such judgment is not conclusive as to any defense or issue which was not raised and is not necessary to uphold the default judgment.” Perez v. Rodriguez, 349 So.2d 826, 827 (Fla.Dist.Ct.App.1977); Baum v. Pines Realty, Inc., 164 So.2d 517, 522 (Fla.Dist.Ct.1964); see also, Masciarelli v. Maco Supply Corp., 224 So.2d 329, 330 (Fla.1969). Additionally, “for purposes of res judicata, a judgment entered upon default is just as conclusive as one which was hotly contested.” Cabinet Craft, Inc. v. A.G. Spanos, 348 So.2d 920, 922 (Fla.Dist.Ct.App.1977); see also, Martino v. Florida Ins. Guaranty Assoc., 383 So.2d 942, 944 (Fla.Dist.Ct.App.1980). Based upon the preceding language, we find that a Florida State Court would hold that the entry of a default judgment is tantamount to a dispute that has been “actually litigated.”

Our interpretation of Florida law is supported by four bankruptcy opinions emanating from three districts in Florida that directly address the standard for issue preclusion iri a Florida State Court. First, the court in In re Marsowicz, 120 B.R. 602 (Bankr.S.D.Fla.1990), stated that “the fact that a default was entered against the debtors in the state court action will not preclude this Court from applying collateral estoppel to the state court judgment.” Marsowicz, 120 B.R. at 604 (the Marsowicz court cited to three of the Florida cases discussed supra, Baum, Perez, and Cabinet Craft).

Second, the court in In re Heuser, 127 B.R. 895 (Bankr.N.D.Fla.1991), stated that:

The plaintiff in this case has received a default judgment finding that the debtor obtained the funds by use of false pretenses or false representations; he willfully and maliciously converted those funds; and, he obtained the funds with the intent to appropriate the money for his own use, thereby damaging the plaintiffs. Whereas the plaintiff alleges the same facts as alleged in the state court action, the debtor is precluded, under Florida law, from raising any defense to the plaintiffs discharge-ability action. Consequently the plaintiff is entitled [to a summary judgment.]

Heuser, 127 B.R. at 898 (the Heuser court cited two of the Florida cases discussed supra, Perez and Martino).

Third, the court in In re Arguez, 134 B.R. 55 (Bankr.S.D.Fla.1991), stated that “the fact that a default was entered against the DEBTORS in the State Court action will not preclude this Court from applying collateral estoppel to the State Court judgment.” Ar-guez, 134 B.R. at 58. The Arguez court compared the elements under 11 U.S.C. § 523(a)(2)(A) with the findings entered in the default judgment and held that “[t]he requirements of Florida collateral estoppel have been satisfied so as to preclude the re-litigation of the issues conclusively adjudicated in the State Court by virtue of the default and final judgment.” Arguez, 134 B.R. at 59 (the Arguez court cited three of the Florida cases discussed supra, Baum, Perez, and Cabinet Craft).

Finally, the court in Seifert stated that “ ‘actually litigated’ only contemplates that the defendant have been given a full opportunity to defend himself.” In re Seifert, 130 B.R. 607, 609 (Bankr.M.D.Fla.1991). In Seifert, the defendants chose not to answer the state court complaint and a default judgment ensued. The court went on to state that the judgment should not be discounted because of the plaintiffs decision not to participate in the state court case. Seifert, 130 B.R. at 609.

We must next determine whether there is an exception to granting the state court default judgment full faith and credit pursuant to 28 U.S.C. § 1738. The Supreme Court in Marrese stated that even if the federal court must grant preclusive effect to a state court judgment, the federal court shall avoid preclusion if there is an exception to 28 U.S.C. § 1738: the full faith and credit statute. Marrese, 470 U.S. at 381, 105 S.Ct. at 1332. The Court proposed two potential exceptions: (1) a subsequently enacted statute that either expressly or impliedly repeals § 1738; and (2) a judicially created exception in circumstances where the state law indicates that litigation of a particular claim or issue should be barred in a subsequent federal proceeding. Marrese, 470 U.S. at 380 & 383, 105 S.Ct. at 1331 & 1333.

We have not found nor has Nourbakhsh cited to any authority indicating that § 1738 has been repealed by statute. The court in In re Byard, 47 B.R. 700 (Bankr.M.D.Tenn.1985), stated that the exception to full faith and credit is limited:

There is no compelling statement of federal bankruptcy law which expressly or impliedly excepts to the normal operation of § 1738 where the state court judgment for which issue preclusive effect is sought is a default judgment.

Byard, 47 B.R. at 707. Similarly, we decline to take this opportunity ,to fashion an exception to Florida’s collateral estoppel law. The Byard court stated that:

The implied repealer of § 1738 in bankruptcy proceedings recognized by the Supreme Court in Brown and acknowledged by the Supreme Court in Marrese was restricted by the Supreme Court in Brown to claim preclusion. Since the decision in Bro%m, the implied repealer exception to § 1738 has been very narrowly construed by the Supreme Court.

Byard, 47 B.R. at 707 (emphasis added) (citation omitted).

Nourbakhsh argues that Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), stands for the proposition that when nondischargeability of a debt based on fraud is an issue, the bankruptcy court is not precluded by a state court judgment from litigating the issue. Consequently, Nourbakhsh argues that the bankruptcy court incorrectly gave preclusive effect to the state court’s finding of fraud and granting summary judgment.

However, in Brown, the state court did not adjudicate the issue.of fraud. Judgment was solely based on a stipulation providing for recovery. Brown, 442 U.S. at 128, 99 S.Ct. at 2207. The debtor in Brown argued that because the creditor did not specifically litigate whether the debt was incurred by fraud in state court, the creditor was precluded from determining the issue in bankruptcy court. The court disagreed with this analysis. Instead, the Court ruled that the bankruptcy court was not bound by res judicata. The Court explained that the issue of fraud was never litigated and was now “for the first time, squarely in issue.” Brown, 442 U.S. at 138, 99 S.Ct. at 2212.

Here, unlike in Brown, the Florida State Court determination was not based on a settlement agreement. A complaint for fraud was filed, both sides were present at a hearing to determine personal jurisdiction and the entry of default. Interrogatories to Nourbakhsh were answered. Moreover, as previously discussed, according to Florida law, the issue of fraud can be determined regardless of whether a default judgment is entered. Thus, the bankruptcy court was not determining the issue of fraud for the first time. Consequently, the bankruptcy court correctly applied issue preclusion and we decline to create an exception to the implementation of 28 U.S.C. § 1738.

II. The Florida State Court Sufficiently Evaluated the Evidence to Enter a Default Judgment Based on the Elements of Fraud

Having concluded that Florida law does not preclude a court from applying collateral estoppel to the state court default judgment, we look to the process leading to the entry of the default judgment to insure that the elements of fraud were adequately established. Nourbakhsh argues that the bankruptcy court should not apply collateral estoppel because of obvious injustice. He points out that he could not afford to travel to Florida nor hire an attorney to represent him at the hearing. However, he provides no evidence other than his own affidavit.

The facts, however, are that the Gaydens filed a complaint for fraud against Nour-bakhsh in Florida State Court. Nour-bakhsh’s counsel filed a motion to dismiss the complaint for lack of jurisdiction. At the hearing, Nourbakhsh’s counsel argued the merits of the complaint and presented evidence concerning the motion to dismiss. The Florida State Court determined that it had personal jurisdiction over Mr. Nourbakhsh. Soon thereafter, Nourbakhsh served answers to interrogatories supplied by the Gaydens. The Florida State Court then held two hearings pertaining to the default. First, on October 28, 1988 the state court held a hearing on the Gaydens’ motion to enter default for failing to answer the complaint within 20 days. The Gaydens maintain Nourbakhsh’s attorney made his last appearance before the state court at this hearing. The court granted this motion.

Second, the state court held a prove-up hearing on November 9, 1988 and entered the default judgment on December 15, 1988. The state court submitted the following findings of fact in the judgment after default:

(1) Nourbakhsh engaged in a scheme to defraud with systematic solicitations and false representations that they would sell to the Gaydens precious metals according to a secured layaway program and wanton disregard of Plaintiffs rights;

(2) Nourbakhsh’s actions constituted a pattern of criminal activity;

(3) Nourbakhsh’s action constituted a pattern of racketeering activity in that each act was done with the same intent, result and purpose to defraud and injure the Gaydens; and

(4) Nourbakhsh in the course of his scheme to defraud exacted illegal, unbar-gained for fabricated charges.

Given the extent of Nourbakhsh’s involvement in the ease and the procedure implemented by the Florida court prior to entering the default judgment, we find that the elements under 11 U.S.C. § 523(a)(2)(A) have been satisfied.

CONCLUSION

After the Florida State Court issued a default judgment against Nourbakhsh based on a complaint for fraud, the bankruptcy court correctly precluded Nourbakhsh from litigating the issue of fraud pursuant to 11 U.S.C. § 523(a)(2)(A). Following the Supreme Court in Marrese v. American Academy of Orthopedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), a Florida State Court would give preclusive effect to a state court default judgement based on fraud and no federal exception to § 1738 applies. Therefore, we affirm the bankruptcy court’s decision to apply issue preclusion pursuant to 28 U.S.C. § 1738 and grant summary judgment.