Strzyzewski v. Strzyzewski (In re Strzyzewski)

44 B.R. 27, 1984 Bankr. LEXIS 5181
CourtDistrict Court, E.D. Wisconsin
DecidedAugust 20, 1984
DocketBankruptcy No. 83-01106; Adv. No. 83-0870
StatusPublished

This text of 44 B.R. 27 (Strzyzewski v. Strzyzewski (In re Strzyzewski)) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Strzyzewski v. Strzyzewski (In re Strzyzewski), 44 B.R. 27, 1984 Bankr. LEXIS 5181 (E.D. Wis. 1984).

Opinion

DECISION

JAMES E. SHAPIRO, Bankruptcy Judge.

Raymond Strzyzewski (“plaintiff”) seeks to declare an obligation due to him from the debtor Dorothy Strzyzewski (“defendant”) nondischargeable, pursuant to § 523(a)(2)(A) of the Bankruptcy Code.1

The plaintiff and defendant were married on November 28, 1978. Each party had been married previously. Their marriage has been short, but stormy. It finally culminated, not only in the commencement of this adversary action, but in the commencement of a divorce action which is still pending.2

[28]*28In July of 1977 (before the parties met), the defendant and her father had purchased a restaurant and tavern known as “Pumpkin’s Log Cabin” located in Hiles, Wisconsin. Shortly after this purchase, the defendant’s father told her that he “wanted out of the business”. Thereafter, the defendant accommodated her father by taking over the entire interest in the restaurant and tavern business and by assuming the full obligation on the loan from Crandon State Bank in connection with the original purchase. It was around the same time when defendant began to encounter her business difficulties that she and plaintiff met and started to see each other socially. The defendant told the plaintiff of her financial predicament. In September of 1977, plaintiff provided the defendant with $10,000.00 for use in the business in order to help her with her existing cash shortage. The defendant testified that the plaintiff told her that “this $10,000.00 will help you — use it as you see fit”. The defendant further stated that she never promised to marry the plaintiff as an inducement for making this payment and that she never promised to turn over any interest in her business to him. The plaintiff, on the other hand, claims that he was promised an interest in the business in exchange for the $10,000.00 and for all monies which he had advanced thereafter. Unfortunately, the understanding between the parties regarding the purpose of the initial $10,000.00 payment (as well as all other payments made by the plaintiff) and regarding what the plaintiff had anticipated receiving in return for the payments, was never clearly defined. There was nothing in writing when the monies were advanced. It was a loose and informal arrangement which was further complicated by the fact that after the first $10,-000.00 payment, all additional payments made by the plaintiff were remitted directly to the defendant’s son, Gregory Cegiel-ski. Mr. Cegielski operated the restaurant and tavern for his mother, and it was he who disbursed the payments received from the plaintiff.

The testimony revealed that the $10,-000.00 provided by the plaintiff in October of 1977 was placed in a bank account in the defendant’s name. It was shortly after the marriage of the parties in November of 1977 that the plaintiff became aware that the defendant had other obligations outstanding. The plaintiff thereupon demanded and in December of 1977, received a return of the initial $10,000.00 advanced, except for $2,600.00 which was applied (at the behest of plaintiff) to pay off a loan covering a balance due on the defendant’s automobile. Thereafter, from time to time, plaintiff advanced additional funds to Mr. Cegielski for use in the restaurant and tavern. It is unclear from the testimony precisely how these payments were to be applied or how much was actually paid. The plaintiff testified it was his intention that the funds were to be used solely for mortgage payments on the restaurant and tavern, and that this intention was expressed to both the defendant and her son. However, while some of the funds were used for this purpose, other funds were also used for other business related expenses.

In April of 1978, in an effort to clarify the understanding regarding these payments, the defendant executed a promissory note in the sum of $11,000.00 to the plaintiff (the parties at that time having apparently agreed that at least this amount was due and should be recognized as a binding obligation in a written document.) The note was payable five years after the date of the note with interest at the rate of six per cent and contained the following statement:

“In the event the promissee (sic) shall predecease the promissor (sic) herein, this note shall be deemd (sic) to have been paid in full.”

This note was drafted by Attorney Woodrow Kerr. With the exception of this note, no other documents — such as a security agreement or an assignment of an interest in the business to the plaintiff — were ever prepared and executed between the parties.

[29]*29Eventually, both the marriage and the business soured. The defendant lost the tavern and the restaurant in a bitterly contested mortgage foreclosure suit and then filed her voluntary petition in bankruptcy on March 29, 1983. The plaintiff thereafter filed this action to declare the obligation due him nondischargeable. As a basis for his complaint, he has contended that he was promised a Vs interest in the business in exchange for all monies to be advanced for the business. He further claimed that there were other misrepresentations made by the defendant, including false statements that her mother was also putting $10,000.00 into the business and that all monies paid by the plaintiff (after the payment of the initial $10,000.00) would be directly applied to mortgage payments on the restaurant and tavern.

As previously noted, the precise purpose for which the monies were to be used is unclear. The parties acknowledged that a gift was never contemplated. This meant that either an investment or a loan (or a combination of both) resulted. The casual manner in which this transaction was handled makes it extremely difficult to decipher its true nature. However, the existence of a promissory note indicates that the establishment of a loan, in contrast to an investment, was contemplated. In particular, the statement on the note relieving the defendant of any further obligation in the event of the plaintiffs prior death, negated the concept that the plaintiff expected to receive an interest in the defendant’s business. The lack of any other documents further supports this conclusion.

In any event, whether the funds paid by the plaintiff were intended as an investment or as a loan, is really inconsequential. In either case, there was no fraud established. On dischargeability issues, the party seeking to establish an exception to discharge has the burden of proving that all of the elements of the fraud exception to discharge exist and these elements must be proven by clear and convincing evidence. In re Neumann, 13 B.R. 128 (Bankr.E.D.Wis.1981); Matter of Trewyn, 12 B.R. 543 (Bankr.W.D.Wis.1981). Exceptions to discharge are narrowly construed against the creditor and in favor of the debtor. Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915). The elements needed to establish fraud under § 523(a)(2)(A) have been elaborated in several Wisconsin cases. In Matter of Schnore, 13 B.R. 249 (Bankr.W.D.Wis.1981), Judge Martin stated, 13 B.R. at page 252:

“The appropriate standard requires that for a debt to be held nondischargeable, the following must have been true at the time the property was obtained:
1. The debtor obtained the property by means of representations which he knew were false or which were made with reckless disregard to their truthfulness;
2.

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Related

Gleason v. Thaw
236 U.S. 558 (Supreme Court, 1915)
Long v. Trewyn (In Re Trewyn)
12 B.R. 543 (W.D. Wisconsin, 1981)
Brauman Paper Co. v. Neumann (In Re Neumann)
13 B.R. 128 (E.D. Wisconsin, 1981)
H. C. Prange Co. v. Schnore (In Re Schnore)
13 B.R. 249 (W.D. Wisconsin, 1981)

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Bluebook (online)
44 B.R. 27, 1984 Bankr. LEXIS 5181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strzyzewski-v-strzyzewski-in-re-strzyzewski-wied-1984.