Post Road Partners LLC v. Walters (In re Walters)

359 B.R. 156, 2006 Bankr. LEXIS 1858
CourtUnited States Bankruptcy Court, E.D. Kentucky
DecidedAugust 28, 2006
DocketBankruptcy No. 05-55527; Adversary No. 06-5044
StatusPublished
Cited by3 cases

This text of 359 B.R. 156 (Post Road Partners LLC v. Walters (In re Walters)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Post Road Partners LLC v. Walters (In re Walters), 359 B.R. 156, 2006 Bankr. LEXIS 1858 (Ky. 2006).

Opinion

MEMORANDUM OPINION

WILLIAM S. HOWARD, Bankruptcy Judge.

This matter has been submitted for decision on the Plaintiffs Motion for Summary Judgment and the Defendant’s Response. The Plaintiff commenced this action on February 6, 2006 by filing a Complaint to Determine Dischargeability of Debt pursuant to Bankruptcy Code sections 523(a)(2)(A) and (B) and 523(a)(6). The Defendant’s debt to the Plaintiff arises from his personal guaranty on a lease. The Plaintiff seeks $90,000.00 for non-payment of rental installments, $20,880.85 for the value of personal property the Defendant allegedly removed from the Plaintiffs property, and $11,180.40 for non-payment of ad valorem taxes. This court has jurisdiction of this matter pursuant to Judicial Code section 1334(b); it is a core proceeding pursuant to Judicial Code section 157(b)(2)(I). For the reasons set out below, the court will sustain the Plaintiffs Motion for Summary Judgment.

1. Factual and procedural history

The Defendant owned and operated Red Snapper Corporation, d/b/a Furlong’s, a seafood restaurant (“Red Snapper”). In February 2004, he approached the Plaintiff about moving the restaurant’s location to property the Plaintiff owned, otherwise known as the Coach House, in Lexington. On February 25, 2004, the Defendant executed an Agreement to Lease whereby he agreed to lease the Coach House premises from the Plaintiff under certain terms and conditions, one of which was his providing a current financial statement. The Defendant provided such a financial statement which he prepared for the first quarter of 2003 (according to the Plaintiff), reflecting that he had assets of $1,695,000.00 and liabilities of $424,500.00 for a total net worth of $1,270,500.00.

The Plaintiff states it did some research in regard to the Defendant’s home and ran a personal credit report. Some unpaid medical bills were attributed to the Defendant’s insurance company’s failure to pay. The Plaintiff discerned no other “red [159]*159flags” that indicated the information the Defendant provided was inaccurate. The Plaintiff did not doubt the accuracy of the financial statement and was satisfied with the Defendant’s financial status as portrayed therein.

On March 18, 2004, the Defendant executed a Land and Building Lease (“the Lease”) on behalf of Red Snapper in which he unconditionally guaranteed the full payment and performance of all Red Snapper’s obligations and responsibilities as set forth in the Lease. In December 2004, Red Snapper abandoned the Coach House, defaulted on the Lease and relinquished possession to the Plaintiff. The Plaintiff also alleges that the Defendant wrongfully removed various items of its personal property from the premises.

The Defendant filed his Chapter 7 petition in this court on October 14, 2005. On December 6, 2005, he filed an amendment to his schedules which evidences liabilities of $1,348,056.16 and assets of $415,420.00, his liabilities therefore exceeding his assets by some $932,636.00. As stated above, the Plaintiff filed its Complaint on February 6, 2006. The Defendant apparently filed his Answer in his bankruptcy case, but never filed it in this proceeding. The Plaintiff filed its Motion for Summary Judgment on June 2, 2006, supported by the Affidavit of Ben H. Levy, managing member for the Plaintiff (“Levy Affidavit”). A hearing was conducted on June 27, 2006. By the time of the hearing the Defendant had not responded to the Motion for Summary Judgment. The court gave him eight days to respond, or have summary judgment entered for the Plaintiff. The Defendant filed his Response with Affidavit attached on July 5, 2006. The Plaintiff filed a Reply on July 10, 2006, and the matter was then taken under submission.

2. Discussion

a. The summary judgment standard

Federal Rule of Civil Procedure 56(c), made applicable in bankruptcy by Bankruptcy Rule 7056, provides that summary judgment is appropriate and “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The Supreme Court has observed that

this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.
As to materiality, the substantive law will identify which facts are material. Only disputes over facts which might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)(emphasis in original).

The summary judgment standard is set out in Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986):

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an [160]*160essential element of the nonmoving party’s case necessarily renders all other facts immaterial.

The Sixth Circuit has opined that “[r]ead together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment asserting that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

b. Non-dischargeable debt pursuant to section 523(a)(2)(B)

The Plaintiff seeks to have the debt it claims the Defendant owes it declared non-dischargeable pursuant to Bankruptcy Code section 523(a)(2)(B). It makes no argument in regard to section 523(a)(2)(A). In order to except a debt from discharge pursuant to section 523(a)(2)(B), the Plaintiff must demonstrate that the Defendant obtained money, property, services, or an extension, renewal, or refinancing of credit, by use of a statement in writing that is materially false respecting the Defendant’s financial condition, on which the Plaintiff reasonably relied, and that the Defendant caused to be made or published with intent to deceive. The party objecting to discharge must prove each element by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 660, 112 L.Ed.2d 755 (1991).

Here the Defendant offered a written statement respecting his financial condition.

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Cite This Page — Counsel Stack

Bluebook (online)
359 B.R. 156, 2006 Bankr. LEXIS 1858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/post-road-partners-llc-v-walters-in-re-walters-kyeb-2006.