Turbo Aleae Investments, Inc. v. Borschow (In re Borschow)

467 B.R. 410, 2012 WL 443963, 2012 U.S. Dist. LEXIS 16512
CourtDistrict Court, W.D. Texas
DecidedFebruary 8, 2012
DocketNo. EP-11-CV-248-KC
StatusPublished
Cited by8 cases

This text of 467 B.R. 410 (Turbo Aleae Investments, Inc. v. Borschow (In re Borschow)) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turbo Aleae Investments, Inc. v. Borschow (In re Borschow), 467 B.R. 410, 2012 WL 443963, 2012 U.S. Dist. LEXIS 16512 (W.D. Tex. 2012).

Opinion

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered Allen C. Borschow and Patricia L. Borschow’s appeal from a final order of the United States Bankruptcy Court for the Western District of Texas. Br. of Cross-Appellants (“Debtors’ Brief’), ECF No. 6. The Court also considered Turbo Aleae Investments Inc.’s competing appeal regarding the bankruptcy court’s final judgment. Turbo Aleae Investments Inc.’s Opening Br. (“Turbos’s Brief’), ECF No. 7.

For the reasons set forth below, the Court AFFIRMS the bankruptcy court’s rulings.

I. BACKGROUND

The bankruptcy court conducted a trial on December 3, 2010, and found the following facts. See Turbo Aleae Invs., Inc. v. Borschow (In re Borschow), 454 B.R. 374, 379 (Bankr.W.D.Tex.2011). Allen C. Borschow (“Allen”) and Patricia L. Borschow (“Patricia”) (collectively “Debtors”) owned a business called Borschow Industries (“BI”). Id. at 381. BI, in turn, owned a company called Almost Originals that specialized in transferring prints of artwork onto canvas. Id. In 2004, the business began to decline, and Debtors needed an injection of cash. Id. BI obtained a Small Business Administration Loan through State National Bank (“SNB”) for $90,000 (the “SNB Loan”). The SNB Loan was secured by all of BI’s inventory, accounts receivable, and equipment. Id. Additionally, BI secured a $75,000 line of credit by executing a promissory note with SNB that was also secured by all of BI’s inventory, accounts receivable, and equipment. See id.; Debtors’ Resp. 14, ECF No. 10; Turbo’s Reply 4, ECF No. 12.

In 2005, Allen became friends with Ernest Koury (“Ernest”) and Omar Koury (“Omar”) (collectively “Kourys”). In re Borschow, 454 B.R. at 381. The three met at the El Paso Country Club and played poker together. Id. In March of 2006, Allen, through Almost Originals, began working with Eureka Media Group (“Eureka”) to create a catalogue of prints and update BI’s website. Id. Ernest owns and operates Eureka, a high tech marketing and promotions business. Id.

[414]*414Despite hopes that Eureka would reinvigorate BI’s business, BI continued to lose money. See id. Debtors became increasingly dissatisfied with Eureka’s work, complaining that Eureka failed to complete the catalogue in a timely manner and failed to sufficiently populate the website with images of its products. See id. Debtors were also not paying Eureka, and thus BI started to owe Eureka thousands of dollars. See id. at 381-82. To make matters worse, BI’s business account was overdrawn and incurring fees. See id. at 385, 390-91.

In September of 2006, Allen announced at the weekly poker game that he could no longer afford his membership at the El Paso Country Club. Id. at 381. According to Allen, the Kourys then asked if they could help. Id.

Allen and the Kourys met a few days later at Jaxon’s Restaurant and Brewing Company. Id. Exactly what the parties discussed at that meeting is not clear. Id. However, two things are certain. First, the parties agreed that Allen would talk to the Kourys’ banker at JPMorgan Chase Bank (“Chase Bank”) about obtaining a loan. Id. at 382. Second, Omar started loaning Allen money after their meeting at Jax-on’s. Id.

On September 30, 2006, Omar wrote the first check payable to Allen for $10,000. Id. On November 3, 2006, Turbo Aleae Investments Inc. (“Turbo”) acting through Omar, wrote another check payable to Allen, this time for $80,000. Id. Omar and Allen were directors of Turbo. Id. at 381. That same day, Allen signed a promissory note in favor of Turbo for $90,000. Id. at 382.

On December 1, 2006, Omar wrote a third check payable to Allen in the amount of $10,000, and wrote in the memo section “personal loan.” Id. On December 8, 2006, Omar wrote a fourth check payable to Allen for $27,608.46, again labeled as a “personal loan.” Id; Debtors’ Br. 3. On January 18, 2007, Omar wrote a final check payable to Allen — this time in the amount of $21,391.54 (the “Final Check”). In re Borschow, 454 B.R. at 382, 401. Omar labeled the Final Check as a “personal loan.” Id. at 382.

At some point during this time period, Chase Bank declined to grant Allen, BI or Debtors a loan. Id. Instead, on January 25, 2007, Turbo obtained a loan from Chase Bank for $150,000 with an interest rate of 7.25%. Id.

On January 29, 2007, Allen signed a second promissory note in favor of Turbo in the amount of $150,000 with an interest rate of 10.25% (the “January 29th Note”). Id. Although the total amount from the cheeks only added up to $149,000, Omar testified that the extra $1,000, the difference between the $149,000 lent by the checks and the $150,000 January 29th Note, reflected accrued interest. Id. at 382 n. 3.

On September 18, 2007, both Allen and Patricia executed a letter agreement in favor of Turbo in the amount of $174,500.41 (the “Letter Agreement”). Id. at 383. This was the first time that Patricia was involved with the loans. See id. at 383, 403. The Letter Agreement consolidated all the debt owed by Debtors and BI to Turbo — specifically the $153,775 balance from the January 29th Note and the remaining amount BI owed to Eureka for its work on BI’s catalogue and website. See id. at 383. As part of the agreement, Debtors immediately paid $7,000 to Turbo. Id. On September 28, 2007, Debtors executed a new promissory note in favor of Turbo for approximately $167,500 with an interest rate of 10.25% (the “Final Turbo Note”). Id. Debtors agreed to pay monthly payments to Turbo of $1,700. Id.

[415]*415Debtors made the first six payments on the Final Turbo Note, for a total of $10,200, but then stopped paying in March of 2008. See id. On January 26, 2009, Debtors filed for bankruptcy under Chapter 7. Id. Turbo then filed an adversary proceeding in Debtors’ bankruptcy case seeking a determination that Debtors fraudulently secured the loans from Turbo, and thus the loans are non-dischargeable under 11 U.S.C. § 523(a)(2)(A). Id. at 379. Section 523(a)(2)(A) states that “money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by false pretenses, a false representation, or actual fraud” is non-dis-chargeable in bankruptcy. 11 U.S.C. § 523(a)(2)(A).

To support their claim under § 523(a)(2)(A), the Kourys testified that Allen promised during the loan process that he would use the loans (1) to pay off the SNB Loan, which would release SNB’s lien on BI’s equipment, (2) to cover the overdrafts and bank charges in BI’s business bank accounts, (3) to obtain life insurance listing Turbo as a beneficiary, and (4) to pay off the amount owed to Eureka.1 In re Borschow, 454 B.R. at 388-93.

In regard to the first three promises — to pay off the SNB Loan, to cover the overdrafts, and to obtain life insurance — the bankruptcy court found the Kourys’ testimony lacked credibility. See id. at 398-400, 402.

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Bluebook (online)
467 B.R. 410, 2012 WL 443963, 2012 U.S. Dist. LEXIS 16512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turbo-aleae-investments-inc-v-borschow-in-re-borschow-txwd-2012.