Oliver v. Zimmerman (In re Zimmerman)

567 B.R. 521, 77 Collier Bankr. Cas. 2d 528, 2017 Bankr. LEXIS 457
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedFebruary 16, 2017
DocketCase No.: 16-31038; Adv. Pro. No. 16-3077
StatusPublished
Cited by6 cases

This text of 567 B.R. 521 (Oliver v. Zimmerman (In re Zimmerman)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oliver v. Zimmerman (In re Zimmerman), 567 B.R. 521, 77 Collier Bankr. Cas. 2d 528, 2017 Bankr. LEXIS 457 (Ohio 2017).

Opinion

MEMORANDUM OF DECISION

Mary Ann Whipple, United States Bankruptcy Judge

This adversary proceeding is before the court for decision after trial on Plaintiffs [524]*524pro se complaint to determine discharge-ability of a debt owed to him by Defendant. Defendant is a debtor in the underlying Chapter 7 case. Plaintiffs complaint is based upon Defendant’s failure to complete construction of a pole barn on Plaintiffs property after contracting to do so and after Plaintiff paid him $36,000. According to Plaintiff, Defendant owes him a debt resulting from his fraudulent representations that should be excepted from his Chapter 7 discharge. Although not specifically identified in his complaint, Plaintiff is proceeding under 11 U.S.C. § 523(a)(2)(A).

The district court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 1334(b) as a civil proceeding arising in or related to a case under Title 11. This proceeding has been referred to this court by the district court under its general order of reference. 28 U.S.C. § 157(a); General Order 2012-7 of the United States District Court for the Northern District of Ohio. Proceedings to determine discharge-ability of debts are core proceedings that the court may hear and decide. 28 U.S.C. § 157(b)(1) and (b)(2)(I).

This Memorandum of Decision constitutes the court’s findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52, made applicable to this adversary proceeding by Fed. R. Bankr. P. 7052. Regardless of whether specifically referred to in this Memorandum of Decision, the court has examined the submitted materials, weighed the credibility of the witnesses, considered all of the evidence, and reviewed the entire record of the case. Based upon that review, and for the reasons discussed -below, the court finds that Plaintiff is entitled to judgment that a debt owed him pursuant to a Cognovit Note signed by Defendant is nondischargeable under 11 U.S.C. § 523(a)(2)(A).

FINDINGS OF FACT

Plaintiff entered into a contract with Central Ohio Builders LLC (“the LLC”) on August 2, 2009, for the construction of a pole barn on his property. Defendant was the principal of the LLC. The contract provided for payment by Plaintiff as follows:

1. $30,000 Down — PAID TO MATERIAL-SUPPLIERS
2. $ 6,000 First Day On Job 1/3
3. $ 6,000 Framing Completion 1/3
4. $ 6,000 Upon Completion 1/3

[Def. Ex. A]. Next to “PAID TO MATERIAL SUPPLIERS” is the handwritten notation, “J & H Construction.” [Id.]. Information provided to the LLC’s customers includes a statement that it “allow[s] the customer to pay our material suppliers direct to assure the rightful property owner that NO liens can be filed.” [PI. Ex. IB, final ¶ (emphasis in original) ].

Plaintiff made a check payable to J & H Construction dated August 2, 2009, in the amount of $30,000. [PI. Ex. 3A]. The parties’ testimony regarding why the check was made payable to J & H Construction differs. According to Defendant, he began talking to Plaintiff about building a pole barn two years before the contract was executed and at a time when he was doing business as J & H Construction, Defendant testified that he had created, and was doing business as, the LLC at the time the contract was signed but Plaintiff had already made the check out to J & H Construction, allegedly the name by which Plaintiff knew the business. According to Defendant, the parties were both in a hurry at the time the contract was signed and thought it “was no big deal,” since the bank would accept a check made out to J & H Construction for deposit in the LLC’s account. Defendant testified that he therefore made the handwritten notation “J & H Construction” on the contract next to [525]*525“PAID TO MATERIAL SUPPLIERS.” The court does not find Defendant’s testimony credible.

The court instead credits Plaintiffs testimony that he first met with Defendant in early to midsummer 2009 to discuss building the pole barn. According to Plaintiff, Defendant brought the contract to his home in the evening on August 2, 2009. Plaintiff testified that Defendant had previously told him that he would most likely be purchasing materials for the pole barn from Menards but that, at the time the contract was signed, Defendant told him that he found a supplier in southern Ohio called J & H Construction and that the check should be made payable to that company. As one of the LLC’s selling points to its customers is direct payment of material suppliers, Plaintiffs testimony comports with the written information document. And nothing about the parties’ described interactions point to a finding of fact that their relationship had commenced years earlier.

Plaintiffs $30,000 check was deposited August 6, 2009, in the LLC’s checking account at National City Bank, the account from which all of the LLC’s business expenses were paid. On August 10, 2009, Defendant purchased framing materials for the pole barn at Menards for a total amount of $14,072.40. [See PI. Ex. 4A-C]. On September 14, 2009, framing of the pole barn began, and Plaintiff made out a check payable to the LLC in the amount of $6,000 as required by the contract. [PI. Ex. 3B]. The structure of the contract tells the court that this advance was intended to cover labor needed to proceed with the job. Although a crew of four or five people worked on construction of the pole barn for approximately two weeks, in- early October work stopped. At that time, framing of the pole barn was approximately eighty-five percent complete. In addition to completing framing, remaining work included installing the doors and the exterior metal walls and roof. According to Defendant, the cost of metal to complete the job was approximately $15,000, By September 30, 2009, the balance in the LLC’s checking account was only $4,355.37.

After trying to contact Defendant multiple times, during the week of October 12, 2009, Defendant told Plaintiff that he was ill. According to Defendant he had the swine flu and was unable to work. Defendant testified that he chose not to send a work crew to Plaintiffs job site without him and that he instead had the crew work on a job at the house next door to Defendant. Plaintiff spoke to Defendant again during the last week of October. At that time, Defendant told him not to worry, that the framing would be completed the next day, and that he would order the metal for completion of the pole barn and it would be delivered by the end of the week. However, framing was not completed, and Defendant never ordered the metal required for completion. Although Defendant testified that the metal was not ordered because Plaintiff never chose the color, the court credits Plaintiffs testimony that he told Defendant the colors he had chosen in October.

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Cite This Page — Counsel Stack

Bluebook (online)
567 B.R. 521, 77 Collier Bankr. Cas. 2d 528, 2017 Bankr. LEXIS 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oliver-v-zimmerman-in-re-zimmerman-ohnb-2017.