Sdrawde Titleholders, Inc. v. Mills (In Re Mills)

73 B.R. 638, 1987 Bankr. LEXIS 788
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedApril 21, 1987
DocketBAP No. CC 86-1122 MoVMe, Bankruptcy No. LA 83-00140 GM, Adv. No. 83-3882 GM
StatusPublished
Cited by5 cases

This text of 73 B.R. 638 (Sdrawde Titleholders, Inc. v. Mills (In Re Mills)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sdrawde Titleholders, Inc. v. Mills (In Re Mills), 73 B.R. 638, 1987 Bankr. LEXIS 788 (bap9 1987).

Opinions

OPINION

MOOREMAN, Bankruptcy Judge.

By this appeal, the debtor challenges an order of the bankruptcy court precluding the discharge of a debt resulting from the operation of a hotel by the debtor. The trial court found that the debtor had committed waste during his possession of the hotel by failing to adequately maintain the premises. On this basis, the court refused discharge of a debt owing to the holder of the deed of trust pursuant to 11 U.S.C. Section 523(a)(6). For the reasons set forth below, we affirm.

FACTS

The debtor herein, Mills, purchased a 67 unit hotel building from Martin Edwards on December 31, 1980, with a sales price of $900,000 and deed of trust in the amount of $880,000.1 Prior to selling the hotel to Mills, Edwards spent approximately two years and $200,000.00 [R.T. p. 18, Ins. 17-25] to repair and refurbish the building to a reasonable condition. [See e.g. R.T. Ins. 14-16] At the time of the transfer to Mills, gross income on the property was approximately $14,000.00/month [R.T. p. 19, In. 25 — p. 20, In. 8] and the building was about 95 percent occupied. [R.T. p. 20, Ins. 9-12]

During negotiations for the sale of the building, Mills represented to Edwards that he and his wife had substantial experience with property management and that he was currently managing another hotel property. [R.T. p. 76, Ins. 1-9; Finding of Fact # 12]

Edwards conveyed his interest to the plaintiff herein, Sdrawde, and Mills subsequently took possession of the unit in February, 1981. Upon receipt of the premises by Mills, the building was in compliance with applicable codes and ordinances and in satisfactory condition and repair with no known infestation of roaches and/or other vermin. [R.T. p. 12-16, 70; Finding of Fact #11] Edwards discussed with Mills [640]*640the various aspects of the operation of the premises as a hotel rather than as apartments (e.g. local law allowed easier removal of problem renters in a hotel). In addition, Edwards informed Mills of the numerous systems he had devised to maintain the premises and avoid vandalism, as well as providing the various forms to continue these mechanisms. Finally, Edwards offered Mills free consulting services with respect to the operation and management of the hotel and encouraged his use of these services. [See R.T. p. 40, Ins. 7-25; p. 43, In. 21 — p. 44, In. 25; p. 46, Ins. 15-17; p. 47, In. 23 — p. 49, In. 1]

Mills testified that the income from the building during his ownership was about $7,000/month. He also testified that spent approximately $3,000/month on maintenance and repairs for three months as well as making the first three monthly payments of $8,000/month due under the deed of trust with Edwards. [R.T. p. 84, In. 24 — p. 85, In. 1; p. 89, Ins. 10-17; see also p. 26, In. 9-16] There is no dispute that Mills did not contribute any funds either to maintain or repair the premises or on the deed of trust obligation. During this latter time period, several checks were tendered to Edwards by Mills although Mills immediately stopped payment on those checks to avoid negotiation. [R.T. p. 27, In. 12 — p. 28, In. 11; Plaintiffs Trial Exhibit # 5]

On September 3, 1981, a state court receiver removed Mills from possession based upon his failure to comply with the terms of the sales contract. As a result of Mills’ default, the property was sold at a non-judi-eial trustee’s sale, with Sdrawde purchasing the building for a bid of $100.00. At the time of the sale, the outstanding obligation owed by Mills was $606,565.67.

Upon return of the property to Edwards, an inspection was performed on the premises. From this inspection, it was determined that 48 of the 67 rooms were in violation of the state and city housing laws and ordinances. [Plaintiff’s Trial Exhibit # 8 & 9; Finding of Fact*# 17] The general sanitation of the building and the fire equipment were also found to be in violation of the requisite codes and ordinances. [Id.] Two of the four communal showers had deteriorated such that they were unusable and one of the four public restrooms in the building was out of service. [Id.] In light of these conditions, the vacancy factor for the building was much higher than when Mills purchased the hotel.

In order for Edwards to restore the building to acceptable standards, he was required to spend at least $125,000.00 over the six months it took to finish the repairs. [R.T. p. 38, Ins. 9-20] However, two years passed prior to achieving the income stream which had been attained prior to the sale to Mills.

Mills filed for bankruptcy protection after the trustee sale. Sdrawde, as legal title holder to the property, brought an adversary action seeking to hold non-dischargea-ble the amount owing to them. The basis of the action was that Mills had committed waste upon the property. After a hearing on the matter, the court found that the plaintiff was entitled to an award of $143,-750.00 as a result of the waste caused by Mills, and that this award was non-dis-chargeable. The debtor appeals this decision on two grounds, claiming that waste does not amount to conduct sufficient to prevent dischargeability and that based upon the amount of the bid by the plaintiff at the foreclosure sale, it is precluded from obtaining such a judgment.

STANDARD OF REVIEW

In reviewing decisions of the bankruptcy court, this Court reviews conclusions of law de novo and findings of fact shall not be set aside unless clearly erroneous. See Bankruptcy Rule 8013; Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); In re Global Development Corp., 759 F.2d 724, 726 (9th Cir.1985).

As set forth in 11 U.S.C. Section 523(a)(6),

(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt—
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity.”

[641]*641In a recent opinion, the Ninth Circuit Court of Appeals has defined “willful and malicious” as “an intentional act which causes injury.” See In re Cecchini, 780 F.2d 1440, 1442 (9th Cir.1986). The Court set forth the appropriate standard as follows: “Therefore, a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse, may constitute a willful and malicious injury.” Id., at 1443, citing 8 Collier on Bankruptcy Section 523.16 (15th ed. 1983).

In the instant case, the trial court found that debtor had committed waste through willful mismanagement by failing to adequately preserve and maintain the premises in the condition in which he obtained them from the seller, during a time period during which income was not utilized to protect the property. These findings included numerous violations of fire, health and safety codes, rendering much of the premises unusable.

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73 B.R. 638, 1987 Bankr. LEXIS 788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sdrawde-titleholders-inc-v-mills-in-re-mills-bap9-1987.