Spier v. Weinstock (In re Weinstock)

177 B.R. 482, 1994 Bankr. LEXIS 2211
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedSeptember 28, 1994
DocketBankruptcy No. 88-21881T; Adv. No. 89-0424
StatusPublished

This text of 177 B.R. 482 (Spier v. Weinstock (In re Weinstock)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spier v. Weinstock (In re Weinstock), 177 B.R. 482, 1994 Bankr. LEXIS 2211 (Pa. 1994).

Opinion

MEMORANDUM OPINION

THOMAS M. TWARDOWSKI, Bankruptcy Judge.

Before the court is a complaint objecting to the dischargeability of a debt allegedly1 owed by defendant to plaintiffs under 11 U.S.C. § 523(a)(2)(A). This alleged debt arose from plaintiffs’ purchase of a part-time podiatry practice from defendant. Specifically, plaintiffs claim they sustained approximately $30,000.00 in damages as a result of misrepresentations made by defendant during the parties’ negotiations concerning the number of patients defendant treated in his part-time practice and the income generated by his part-time practice. Plaintiffs further maintain that the damages they allegedly sustained should be found nondischargeable under § 523(a)(2)(A) because they resulted from actions they took in reliance upon these misrepresentations. Because we have determined that plaintiffs have not met their burden of proof, we find the alleged debt dis-chargeable and enter judgment in favor of defendant. We begin our analysis with a summary of the relevant facts.

Defendant is a podiatrist who sold his part-time podiatry practice in Lansdowne, Maryland (“Lansdowne”) to plaintiffs in December of 1987. At the time he opened his part-time practice in Lansdowne in March of 1986, and during the time he operated his part-time Lansdowne practice, defendant was also employed part-time by United Footcare Centers (“United Footcare”). United Footcare had two offices located in the Baltimore area. Specifically, United Footcare had an office in Randallstown, Maryland, which was approximately fifteen to twenty miles from Lans-downe, and an office in Parkville, Maryland, which was approximately forty miles from Lansdowne. Defendant had been employed by United Footcare from the summer of 1983 until approximately July of 1987, at which time he decided to end his relationship with United Footcare and sell his part-time practice in Lansdowne to relocate. To facilitate [484]*484the sale of his practice, defendant placed advertisements in various podiatry journals. Plaintiffs learned about the sale of defendant’s practice through one of these advertisements. Plaintiffs then contacted defendant in November of 1987 to discuss the possibility of purchasing defendant’s part-time practice.

Only one of the plaintiffs, Dr. Bernhard, met with defendant during the first meeting which was held at defendant’s office in Lans-downe. During this meeting, defendant showed Dr. Bernhard all of the records which were in his office at that time. These included patient ledger cards, day sheets and an appointment book. Defendant also showed Dr. Bernhard a financial statement which reflected that defendant’s gross revenue from his part-time Lansdowne practice from January of 1987 through September of 1987 was approximately $47,000.00. Dr. Bernhard testified that defendant advised him that he saw between sixty and seventy patients a month at the Lansdowne office and that approximately one-half of these patients were new patients. Dr. Bernhard further testified that he was aware that defendant was affiliated with another podiatry practice at the time defendant operated his part-time practice in the Lansdowne office. Defendant testified that the parties did not discuss many of the details during the first meeting and that Dr. Bernhard seemed eager to purchase the Lansdowne practice.

Shortly thereafter, defendant met with plaintiff, Dr. Spier, at the Lansdowne office to discuss the potential purchase. During this meeting, Dr. Spier reviewed the records which were maintained by defendant, including the patient ledger cards, patient charts, day sheets and the appointment book defendant maintained for his Lansdowne practice. Dr. Spier also examined the equipment which was in the Lansdowne office. Dr. Spier testified that he discussed the “logistics” of the practice with defendant, i.e., what defendant spent on rent, phone bills and the equipment lease. Dr. Spier further testified that defendant advised him that he saw between sixty and seventy patients a month at the Lans-downe office, with fifteen to twenty of these patients being new patients, and that all of the income reflected on the day sheets and ledger cards was generated at the Lans-downe office. Finally, Dr. Spier testified that during the parties’ negotiations, he was aware that defendant was affiliated with another podiatry practice at the time defendant operated his part-time practice in Lans-downe. Defendant testified that neither plaintiff requested additional information from him and that both plaintiffs seemed convinced that they wanted to purchase the Lansdowne practice.

Thereafter, in December of 1987,.plaintiffs and defendant executed an agreement under which plaintiffs agreed to purchase defendant’s part-time Lansdowne practice (and the equipment in the Lansdowne office) for $10,-000.00. In addition, plaintiffs agreed to assume defendant’s liability under an equipment lease. Plaintiffs then opened a part-time podiatry practice in the Lansdowne office. However, plaintiffs were disappointed with the income they were generating from the operation of their Lansdowne office. Specifically, plaintiffs testified that despite extensive advertising, they averaged only between five and eight appointments a week. Accordingly, plaintiffs closed their Lans-downe office in May of 1988, after operating their practice for only approximately five months. Thereafter, plaintiffs received notice of defendant’s bankruptcy filing, and they then filed this complaint objecting, under § 523(a)(2)(A), to the dischargeability of the debt they believe defendant owes them. We now turn to an analysis of § 523(a)(2)(A).

We begin by noting that exceptions to discharge are narrowly construed against the creditor and in favor of the debtor. Lipka v. Donley (In re Donley), 115 B.R. 502, 503 (Bankr.E.D.Pa.1990); Koltman v. Hammill (In re Hammill), 61 B.R. 555, 556 (Bankr.E.D.Pa.1986); Seiders v. Fenninger (In re Fenninger), 49 B.R. 307, 310 (Bankr.E.D.Pa.1985). This is in keeping with the fresh start concept underlying the Bankruptcy Code. In addition, the burden of proof in a dischargeability dispute is on the party objecting to the dischargeability of the debt who must prove his case by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).

[485]*485Turning to the specific discharge-ability exception relied upon by plaintiffs in this case, we note that in order for a debt to be found nondisehargeable under 11 U.S.C. § 523(a)(2)(A), the plaintiff must prove each of the following elements by a preponderance of the evidence: (1) that the defendant made a materially false representation; (2) knowing that it was false; (3) with the intent and purpose of deceiving the plaintiff; (k) that the plaintiff reasonably relied upon the representation; and (5) sustained damage as a proximate result of the representation having been made. Donley, 115 B.R. at 503; Hammill, 61 B.R. at 556; Volk of Philadelphia, Inc. v. Gelfand (In re Gelfand), 47 B.R. 876, 879 (Bankr.E.D.Pa.1985).

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Related

Grogan v. Garner
498 U.S. 279 (Supreme Court, 1991)
Seiders v. Fenninger (In Re Fenninger)
49 B.R. 307 (E.D. Pennsylvania, 1985)
Koltman v. Hammill (In Re Hammill)
61 B.R. 555 (E.D. Pennsylvania, 1986)
Volk of Philadelphia, Inc. v. Gelfand (In Re Gelfand)
47 B.R. 876 (E.D. Pennsylvania, 1985)
Lipka v. Donley (In Re Donley)
115 B.R. 502 (E.D. Pennsylvania, 1990)

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Bluebook (online)
177 B.R. 482, 1994 Bankr. LEXIS 2211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spier-v-weinstock-in-re-weinstock-paeb-1994.