Summit Credit Union v. Goldbeck (In re Goldbeck)

590 B.R. 881
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedSeptember 7, 2018
DocketCase No.: 17-13077-7; Adversary No.: 17-103
StatusPublished
Cited by7 cases

This text of 590 B.R. 881 (Summit Credit Union v. Goldbeck (In re Goldbeck)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Summit Credit Union v. Goldbeck (In re Goldbeck), 590 B.R. 881 (Wis. 2018).

Opinion

Hon. Catherine J. Furay, U.S. Bankruptcy Judge

Debtors Todd and Jodi Goldbeck ("Defendant" or "Goldbeck" when referring to Todd Goldbeck and "Debtors" when referred to jointly) filed a chapter 7 petition. Summit Credit Union ("Summit") filed this adversary proceeding seeking to declare a judgment against Goldbeck nondischargeable under 11 U.S.C. §§ 523(a)(2)(A), (a)(2)(B), and (a)(6).

Summit moved for summary judgment with supporting affidavits. Defendant opposes the motion. He submitted an affidavit of counsel attaching three exhibits.1

FACTS

Defendant is a physical therapist and athletic trainer. Hoping to expand his practice, he formulated a plan to build his own facility (the "Facility"). In support of that project, Defendant worked with the University of Wisconsin-Whitewater to prepare a feasibility study for a fitness facility in Jefferson, Wisconsin. The study concluded there was an opportunity for a new training center.

Bolstered by the study, Defendant began soliciting investors and lenders. In the fall of 2014, Defendant met with James Holden ("Holden"), a Summit Vice President, and Jason Herlitzke ("Herlitzke"), the Small Business Administration ("SBA") contact at Summit. In December 2014, Defendant sent the feasibility study, a business plan, and some projections to Summit. The next month he told Summit a local economic development authority had agreed to make a loan for equipment for the Facility.

By August 2015, discussions with Summit and the SBA were proceeding in earnest. Defendant provided a signed "General Building Specifications and Cost Estimate" dated April 27, 2015, to Summit *885for a 47,800 square foot facility at a cost of $2,234,343.90. Defendant and Summit negotiated and eventually agreed to terms to finance the Facility.

The parties anticipated and arranged for the financing to be in the form of an SBA loan. Defendant consulted with Business Lending Partners ("BLP"), a private non-profit organization that services and processes SBA 504 loans. Defendant represented he had already bought some equipment and stated it cost $50,000. The month after, Defendant said the equipment would cost about $150,000 and he factored that amount into his Projected Opening Balance Sheet. He again produced a construction budget asserting the "total construction cost" would be about $2.5 million. He said he was putting together a list of the existing equipment. He also gave Summit final plans and specifications for the building. The plans show a complete, usable building. Defendant admits nothing in the plans "indicates that the construction costs identified ... are for anything other than a completed building."

References to a second phase of construction appear in the emails between Defendant and Summit. The references begin with an indication that Defendant will "have the option to purchase 5 more acres ... whenever that time comes." The precise details of phase 2 are not defined, although there are references to basketball and tennis courts and another 90,000 square feet of construction. It appeared phase 2 was to consist of an expansion of a by-then fully completed facility. As noted in his exchange with BLP, Defendant anticipated he would buy additional equipment when he had the budget to do so.

To minimize its risk, Summit required Defendant to rent out some of the Facility and procure a signed lease before the execution of the loan. Summit also wanted an assignment of rents to support payments as they came due. Defendant told Summit that Watertown Regional Medical Center ("WRMC") intended to lease space in the Facility. In August, Defendant sent Summit a lease between the Facility and WRMC purportedly signed by WRMC (the "WRMC Lease"). The loan was then closed.

Shortly after the execution of the loan, Defendant emailed Summit about financing for phase 2. By then, the project was already $500,000 over the budget presented to Summit. Defendant asserted he needed another $805,000 for the land purchase for phase 2. Defendant suggested that the interest in the project had been overwhelming and he "would need more equipment to handle [the new members'] needs." In response, Holden expressed shock the project was over budget and advised Defendant to "get phase 1 completed, financially stable, and then look at the next phase." By October, Defendant had secured a $600,000 line of credit from a "high school classmate."

Toby Krause ("Krause"), sole proprietor of T. Krause Custom Builders, LLC, was the contractor for the project. Defendant knew Krause from previous construction projects and from high school. Krause saw the plans and specifications from the architects. Before preparing a budget, Krause obtained bids from subcontractors. Based on the bids, the cost to construct a finished facility approached $5 million. He then prepared a budget and contract that Defendant signed. The contract was not in an amount based on the bids.

In April 2015, Krause prepared the cost estimate. It said the actual cost would be $2,770,707.90. Krause testified that the budget submitted to Summit was for only *886about half of the construction cost. According to Krause, Defendant instructed the budget should be for half the cost. The estimate did not include finish materials inside. Krause testified that Defendant was aware of that fact. Krause, with Defendant, also prepared an actual budget reflecting the genuine cost of the project. In the late summer or fall of 2015, before construction began, that new construction contract and budget were prepared and signed but not given to Summit.

Defendant used the estimate and agreement of $2,770,707.90 when he applied for the Summit loan. He explained that he would be saving money because of his relationship with many subcontractors. Even so, he knew this price was false.

In September, Defendant knew a final construction contract was needed to close the loan. Defendant gave Summit a signed contract with Krause. It said the cost was "not to exceed $2,570,000.00." The contract conveyed it was for the construction of a completed facility per the plans and specifications previously submitted.

The loan closed. Simultaneous with the execution of the loan, Defendant's company, Xcel Sports Complex, LLC, and Summit entered into a Construction Loan Disbursement Agreement ("Disbursement Agreement") with Fidelity Land Title, Ltd. ("Fidelity"). Under that agreement, financing for the project would flow through Fidelity under the terms defined in the Disbursement Agreement.

A later cost estimate dated November 30, 2015-after the parties signed the loan-projected the cost would be $4,548,185. Krause testified the estimate given to Summit applied only to half the project. He also agreed that nothing in that estimate would reveal it applied to less than the whole project.

John Graf, the former Senior Vice President and Chief Financial Officer of WRMC, is the person whose signature seems to appear on the WRMC Lease. Graf acknowledges in an affidavit that there were some discussions with Defendant about the possibility of a lease for medical office space. He denies signing the supposed WRMC Lease and confirms he authorized no other person to sign his name.

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Cite This Page — Counsel Stack

Bluebook (online)
590 B.R. 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summit-credit-union-v-goldbeck-in-re-goldbeck-wiwb-2018.