R & R Express, Inc. v. Cawthon (In re Cawthon)

594 B.R. 913
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedDecember 6, 2018
DocketCASE NO. 18-54741-WLH; ADVERSARY PROCEEDING NO. 18-5138-WLH
StatusPublished
Cited by12 cases

This text of 594 B.R. 913 (R & R Express, Inc. v. Cawthon (In re Cawthon)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
R & R Express, Inc. v. Cawthon (In re Cawthon), 594 B.R. 913 (Ga. 2018).

Opinion

Wendy L. Hagenau, U.S. Bankruptcy Court Judge

THIS MATTER is before the Court on Defendant's Renewed Motion to Dismiss (the "Motion") (Doc. No. 8). This matter is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(I) and (J), and the Court has jurisdiction over the proceeding pursuant to 28 U.S.C. §§ 1334 and 157.

I. FACTS

Plaintiff, a transportation company, hired Defendant as a contract dispatcher. Plaintiff contacted Defendant when it needed a truck to deliver freight in and around Georgia. Defendant would then find a driver to complete the route. Plaintiff would invoice the customer for payment. Plaintiff alleges Defendant collected and kept payments from customers.

More specifically, Plaintiff alleges Defendant represented to customers that they were to pay her, rather than Plaintiff, and she would remit the payments to Plaintiff. Plaintiff alleges Defendant represented to a customer, Swift Logistics, that it was to pay her rather than Plaintiff, and Swift Logistics paid Defendant $551.82 on June 17, 2015 under false pretenses that she was accepting the payment on Plaintiff's behalf. Plaintiff alleges Defendant never submitted the funds to it. Plaintiff alleges Defendant received several other payments, in the amounts of $409.50, $409.50, $409.50, $461.10, $409.50, and $409.50, under similar pretenses and never submitted the payments to Plaintiff. Plaintiff states Defendant also intercepted a payment on February 23, 2015 for $343.00.

Plaintiff filed a complaint in the Court of Common Pleas of Allegheny County, Pennsylvania and obtained a judgment against Defendant in the amount of $78,488.62. Plaintiff domesticated the judgment in Georgia. Plaintiff filed a second action in the Court of Common Pleas of Allegheny County, Pennsylvania and obtained a judgment against Defendant for $26,732.91; it was also domesticated in Georgia.

Defendant filed a petition under chapter 7 of the Bankruptcy Code on March 20, 2018. Defendant stated on Schedule A/B she held checking and savings accounts with Navy Federal Credit Union and Delta Community Credit Union. On Schedule D, Defendant listed three vehicles subject to *919secured claims: a 2016 BMW 740i, a 2008 Harley Davidson motorcycle, and a 2013 BMW X5; on Schedule G she listed a Harley Davidson Sportster subject to an auto lease. On her Statement of Financial Affairs, Official Form 107, Defendant stated she was not married. On Schedule I, Defendant stated she was employed by Gilco Trucking as a dispatcher for approximately six years.

Plaintiff filed a complaint on June 25, 2018 seeking a determination a debt owed to it by Defendant is nondischargeable pursuant to sections 523(a)(2) and 523(a)(4) of the Bankruptcy Code and to deny Defendant a discharge pursuant to section 727(a)(2) and 727(a)(4) of the Bankruptcy Code. Defendant answered and moved to dismiss the complaint. Plaintiff then filed an Amended Complaint. Thereafter, Defendant filed the Motion. For the reasons stated below, the Court grants the Motion in part and denies the Motion in part.

II. MOTION TO DISMISS STANDARD

Defendant seeks dismissal of the Amended Complaint pursuant to Federal Rule of Bankruptcy Procedure 12(b)(6), made applicable by Federal Rule of Bankruptcy Procedure 7012, for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A complaint is plausible on its face when the plaintiff pleads factual content necessary for the court to draw the reasonable inference the defendant is liable for the conduct alleged. Id.

While the plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, the purpose of a motion to dismiss is not to resolve disputed facts or decide the merits of a case. Rather, the purpose of a motion to dismiss is to ensure the plaintiff has provided notice of the grounds which entitle him to relief. Twombly, 550 U.S. at 561, 127 S.Ct. 1955. The facts alleged must be taken as true, and dismissal is inappropriate merely because it appears unlikely the plaintiff can prove those facts or will ultimately prevail on the merits. Official Comm. of Unsecured Creditors of Tousa, Inc. v. Technical Olympic, S.A. (In re Tousa), 437 B.R. 447, 452 (Bankr. S.D. Fla. 2010) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) ).

III. DISCUSSION

a. Plaintiff has alleged facts to support a plausible claim under § 523(a)(2)(A)

Plaintiff contends Defendant's debt should be deemed nondischargeable pursuant to section 523(a)(2)(A) because it was incurred under false pretenses.

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Cite This Page — Counsel Stack

Bluebook (online)
594 B.R. 913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/r-r-express-inc-v-cawthon-in-re-cawthon-ganb-2018.