Wells Fargo Bank, N.A. v. Sutton (In re Sutton)

557 B.R. 831
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedJuly 1, 2016
DocketCASE NO. 15-59460-BEM; ADVERSARY PROCEEDING NO. 15-5329-BEM
StatusPublished
Cited by6 cases

This text of 557 B.R. 831 (Wells Fargo Bank, N.A. v. Sutton (In re Sutton)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wells Fargo Bank, N.A. v. Sutton (In re Sutton), 557 B.R. 831 (Ga. 2016).

Opinion

ORDER

Barbara Ellis-Monro, U.S. Bankruptcy Court Judge

This matter comes before the Court on Defendant’s Motion to Dismiss [Doc. 23] and Plaintiffs Motion for Summary Judgment [Doc. 16], Plaintiff seeks a determination that its debt is nondischargeable. This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(I).

Defendant’s motion to dismiss claims Defendant is not liable for the debt at issue. Thus, it appears Defendant is seeking dismissal for failure to state a claim upon- which relief may be granted. See Fed. R. Civ. P. 12(b)(6), However, the motion was filed more than five months after Defendant filed an answer and one day after Plaintiff filed its motion for summary judgment. A Rule 12(b)(6) motion must be filed before filing an answer. However, the Court may treat the motion as one seeking judgment on the pleadings under Fed. R. Civ. P. 12(c). Filo America, Inc, v. Olhoss Trading Co., L.L.C., 321 F.Supp.2d 1266, 1267 (M.D.Ala.2004); accord Whitehurst v. Wal-Mart Stores, East, L.P., 329 Fed.Appx. 206, 208 (11th Cir.2008). Defendant in this proceeding is acting pro se and has not adhered to formal pleading requirements. Nevertheless, the Court finds it appropriate to treat her motion to dismiss as a motion for judgment on the pleadings.

I. Defendant’s Motion for Judgment on the Pleadings

A motion for judgment on the pleadings is governed by Fed. R. Civ. P. 12(c), made applicable in adversary proceedings by Fed. R. Bankr. P. 7012(b). The Court may grant judgment on the pleadings when “there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.” Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir.2001); Perez v. Wells Fargo N.A, 774 F.3d 1329, 1335 (11th Cir.2014). A motion for judgment on the pleadings “is governed by the same standards as a motion to dismiss for failure to state a claim — ” Adams v. City of Indianapolis, 742 F.3d 720, 727-28 (7th Cir.2014).

Fed, R. Civ. P. 8, incorporated by Fed. R. Bankr. P. 7008, sets forth a liberal pleading standard that requires the complaint to contain only “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss for failure to state a claim, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ... A claim has facial plausibility when the plaintiff pleads factual content that allows the [835]*835court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1987, 1949, 173 L.Ed.2d 868 (2009) (citations omitted). Attachments to the complaint are considered part of the pleadings for purposes of a Rule 12(b)(6) motion. Solis-Ramirez v. U.S. Dept, of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (citing Fed. R. Civ. P. 10(c)). In reviewing a motion for judgment on the pleadings, the Court “accept[s] as true all material facts alleged in the non-moving party’s pleading, and ... view[s] those facts in the light most favorable to the non-moving party,” Perez, 774 F.3d at 1335; see also Cline v. Tolliver, 434 Fed.Appx. 823, 825 (11th Cir.2011) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949).

When, as in this case, the complaint includes claims for fraud, Federal Rule of Civil Procedure 9(b) and Federal Rule of Bankruptcy Procedure 7009 require the complaint to “state with particularity the circumstances constituting fraud .... alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” To satisfy Rule 9(b), Plaintiff must allege: “(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud.” American Dental Assoc, v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir.2010) (internal quotation marks and citations omitted). Plaintiff “may plead circumstantial evidence from which the Court may infer intent.” Old Republic Nat’l Title Ins. Co. v. Presley (In re Presley), 490 B.R. 633, 638 (Bankr.N.D.Ga.2013) (Diehl, J.) (citing Dionne v. Keating (In re XYZ Options, Inc.), 154 F.3d 1262, 1271 (11th Cir.1998)).

Plaintiffs complaint seeks to liquidate its debt and seeks a determination that the debt is nondischargeable pursuant to 11 U.S.C. § 523(a)(2) and (a)(6), which provide as follows:

(a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt—
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by—
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(B) use of a statement in writing—
(i) that is materially false;
(ii) respecting the debtor’s or an insider’s financial condition;
• (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonable relied; and
(iv) that the debtor caused- to be made or published with intent to deceive;
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity[.]

11 U.S.C. § 523(a)(2), (6).

To state a claim for nondis-chargeability under § 523(a)(2)(A),1

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
557 B.R. 831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-fargo-bank-na-v-sutton-in-re-sutton-ganb-2016.