Wann v. Sosso (In re Sosso)

516 B.R. 303
CourtUnited States Bankruptcy Court, W.D. Pennsylvania
DecidedAugust 25, 2014
DocketBankruptcy No. 12-21641-CMB; Adversary No. 12-2267-CMB
StatusPublished
Cited by3 cases

This text of 516 B.R. 303 (Wann v. Sosso (In re Sosso)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wann v. Sosso (In re Sosso), 516 B.R. 303 (Pa. 2014).

Opinion

MEMORANDUM OPINION

CARLOTA M. BOHM, Bankruptcy Judge.

The matter before the Court is the Complaint to Determine Dischargeability of Debt Pursuant to 11 U.S.C. § 528 (“Complaint”) filed by Plaintiff, Melbourne Wann (“Mr. Wann”), against the Debtor, Helen V. Sosso (“Debtor”).1 The Complaint asserts that the debt owed to Mr. Wann is not dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(6). For the reasons stated herein, this Court finds that the debt is dischargeable.

BACKGROUND AND PROCEDURAL HISTORY

The above-captioned adversary proceeding was commenced on July 13, 2012. In the course of discovery, two motions to compel further deposition testimony were filed by Mr. Wann against non-parties, Joseph W. Nocito (“Mr. Nocito”) and Mark Sosso, the Debtor’s son. In those motions, Mr. Wann asserted that these individuals improperly invoked the Fifth Amendment privilege against self-incrimination at their respective depositions. This Court denied the motions to compel for the reasons set forth in its Memorandum Opinion dated May 7, 2013.

Thereafter, trial was scheduled. The parties filed pretrial statements and a joint pretrial statement, containing a number of stipulated facts. Trial was held on January 13, 2014, and January 29, 2014. Testimony of the following four witnesses was heard at trial: Mr. Wann; the Debtor; Harry Hunt, a licensed appraiser in the State of Florida; and Marty Benson, a licensed real estate agent in the State of [306]*306Florida.2 Although the Debtor’s two sons, Mark Sosso and Scott Sosso, and Mr. No-cito were served with subpoenas, counsel for each of them appeared on the first day of trial and represented that these individuals would invoke their Fifth Amendment privilege as to the areas upon which their testimony would be sought. Upon this representation, these individuals were not called to testify.3

Following trial, the parties were given the opportunity to file statements of issues, briefs, and reply briefs. As these documents have been filed, the matter is ripe for decision.

FINDINGS OF FACT

Based upon the stipulated facts set forth in the parties’ Joint Pretrial Statement, the testimony and evidence presented at trial, and this Court’s assessment of the witnesses’ credibility, the Court finds as set forth herein.

By way of background, the nature of the relationship between the Debtor and Mr. Wann is relevant to this proceeding. Mr. Wann is an experienced builder and developer who has been in the real estate development industry for approximately fifty years. The Debtor has been in the real estate business for approximately thirty-eight years and maintains a real estate broker’s license in both Pennsylvania and Florida. The parties had been close friends for approximately thirty years. In the course of their friendship, they also did business together as the Debtor was the broker with whom Mr. Wann listed most of his properties in Pennsylvania. It is evident from the testimony that, based upon this long-standing friendship, a high level of trust existed between them at the time of the relevant transactions.

The dispute in this case results from the circumstances surrounding a project (the “Project”) that began in 2005 to renovate a residential home located at 605 Kingfisher Lane, Longboat Key, Sarasota County, Florida (the “Property”). The idea and decision to take on the Project was that of Mark Sosso, the Debtor’s son. See Transcript of 1/29/14, Doc. No. 107 (“Transcript II”), at 25. The Project was undertaken by Sosso Homes, LLC, a Florida limited liability company (“Sosso Homes”). From at least 2005 through 2007, the Debtor and her two sons, Mark Sosso and Scott Sosso, (collectively, the “Sossos”) were identified as managers/members of Sosso Homes in certain annual reports filed with the Secretary of State; however, as discussed infra, the credible evidence establishes that Mark Sosso managed and controlled Sosso Homes. See Exhibits 21-23 and Transcript II, at 130.

In order to purchase the Property and fund the Project, Sosso Homes obtained a construction loan from Liberty Savings Bank. The Property was purchased by Sosso Homes on July 19, 2005, as evidenced by a deed recorded on July 22, 2005. In connection with the loan, a note [307]*307in the amount of $1,620,000.00 to Liberty Savings Bank was executed by Mark Sos-so, as managing member of Sosso Homes. A mortgage, identifying Sosso Homes as the mortgagor and executed by Mark Sos-so as the managing member of Sosso Homes, was recorded on July 22, 2005. Accordingly, the loan was secured by a first mortgage hen against the Property. The Debtor, Scott Sosso, and Mark Sosso were each guarantors of the loan obtained from Liberty Savings Bank.

Prior to closing on the loan from Liberty Savings Bank, the Debtor approached Mr. Wann to gauge his interest in the Project as he had previously shown an interest to invest in property in the area. Although the Debtor admits to this involvement, she contends that she did not intend to be responsible for “putting this deal together” as it involved her longtime friend and her son. See Transcript II, at 26. The Debtor advised Mr. Wann that an additional $100,000.00 was needed for the closing of the loan and completion of the Project. When Mr. Wann agreed to loan the necessary funds, his understanding of the agreement was that the Sossos were to own the Property and execute a note and mortgage in connection with, his loan, which mortgage the Debtor would cause to be recorded following closing on the loan with Liberty Savings Bank. See Transcript of 1/13/14, Doc. No. 91 (“Transcript I”), at 37, 42-43, 160-61. Ultimately, however, this is not what occurred.

According to Mr. Wann, his understanding of the agreement, and consequently the manner in which a note and mortgage (hereinafter, the ‘Wann Note”, Exhibit 3, and Wann Mortgage”, Exhibit 4) were prepared by his counsel, resulted from discussions with Debtor and, in particular, a document provided to him by Debtor. See Transcript I, at 159-61 and Exhibit 2. Despite the Debtor’s testimony that she did not intend to negotiate the deal between her son and her friend, the Court finds it likely that the Debtor and Mr. Wann at least discussed the transaction as they were close friends. The Court finds the extent, formality, and nature of these discussions, as well as the Debtor’s role in the negotiations, to be uncertain. Based upon the evidence presented, it is not clear to the Court that the Debtor understood that Mr. Wann was relying almost exclusively upon their discussions to draft the terms of a note and mortgage. Although the Debtor’s involvement to assist her son is obvious, especially as she contacted her friend, Mr. Wann, in the first place, the credible evidence establishes that this Project was the undertaking of Mark Sosso and Debtor’s knowledge of the Project was derived predominantly from information he provided to her. Furthermore, although Mr. Wann was in contact with Debtor prior to the loan, he was also clearly in touch with Mark Sosso regarding the Project at this time. See Exhibit D.

Mr. Wann places particular emphasis on an unsigned commitment letter which he claims was provided to him by Debtor in June of 2005. Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
516 B.R. 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wann-v-sosso-in-re-sosso-pawb-2014.