Wildwood Property, L.L.C. v. Rauf (In re Rauf)

504 B.R. 838
CourtUnited States Bankruptcy Court, E.D. Michigan
DecidedJanuary 3, 2014
DocketBankruptcy No. 12-67060; Adversary Proceeding No. 13-04260-PJS
StatusPublished

This text of 504 B.R. 838 (Wildwood Property, L.L.C. v. Rauf (In re Rauf)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wildwood Property, L.L.C. v. Rauf (In re Rauf), 504 B.R. 838 (Mich. 2014).

Opinion

Opinion Denying Determination of Non-Dischargeable Debt After Trial

PHILLIP J. SHEFFERLY, Bankruptcy Judge.

Introduction

This matter is before the Court upon a complaint filed by Wildwood Property, L.L.C. (“Wildwood”) against the Debtor, Abdul Rauf (“Debtor”) seeking a determination that a debt owed by the Debtor to Wildwood is non-dischargeable. The Court has subject matter jurisdiction over this adversary proceeding under 28 U.S.C. §§ 1334(b), 157(a) and 157(b)(1) and (2)(I). For the reasons explained in this opinion, the Court denies Wildwood’s request for a determination of nondischargeability.

Procedural History

The Debtor filed this Chapter 7 bankruptcy case on December 14, 2012. On March 6, 2013, Wildwood filed this adversary proceeding. Wildwood’s complaint contains two counts. Count I seeks a determination of a non-dischargeable debt under § 523(a)(2)(A) of the Bankruptcy Code. Count II seeks a determination of a non-dischargeable debt under § 523(a)(2)(B) of the Bankruptcy Code.

After discovery was completed, Wild-wood filed a motion for summary judgment on both counts on September 30, 2013. The Debtor timely filed a response. On November 8, 2013, the Court heard Wild-wood’s motion. At the conclusion of the hearing, the Court granted Wildwood’s motion in part and denied it in part. As for count I, the Court found that there were no genuine issues of material fact with respect to two elements of § 523(a)(2)(A): the Debtor obtained money, property, services or credit from Wild-wood, and the Debtor did so through a material misrepresentation. However, the Court found that there were genuine issues of material fact with respect to four other elements of § 523(a)(2)(A): (i) whether the Debtor knew that the misrepresentation that he made was false or that he made the misrepresentation with gross recklessness as to its truth; (ii) whether the Debtor intended to deceive Wildwood; (iii) whether Wildwood justifiably relied on the Debtor’s misrepresentation; and (iv) whether Wildwood’s reliance was the proximate cause of its loss.

The Court also granted Wildwood a partial summary judgment with respect to count II of its complaint under § 523(a)(2)(B). The Court found that there were no genuine issues of material fact with respect to two elements of § 523(a)(2)(B): the Debtor used a written statement that was materially false, and the written statement pertained to the Debtor’s financial condition. However, the Court found that there were genuine issues of material fact with respect to two other elements of § 523(a)(2)(B): (i) whether Wildwood reasonably relied upon the false written statement regarding the Debtor’s financial condition; and (ii) whether the Debtor intended to deceive Wildwood.

On November 25, 2013, the Court held a joint final pretrial conference. Based upon the stipulation of Wildwood and the Debt- [841]*841or, as well as the rulings made by the Court at the final pretrial conference, the Court entered a joint final pretrial order on December 2, 2013. In the joint final pretrial order, both Wildwood and the Debtor identified the witnesses they intended to call at the trial, the exhibits they intended to introduce, and the legal authorities that supported their respective positions.

On December 18, 2013, the Court conducted the trial. Wildwood called four witnesses: George Nyman, a principal of Wildwood; Adam Nyman, an employee of a property management company owned by George Nyman; the Debtor; and Sha-hid Tahir, a former friend and business associate of the Debtor. Wildwood introduced into evidence exhibits 1-14. The Debtor called himself as his only witness. The Debtor introduced into evidence exhibits B, C, I, J, K, L, M, N, Q and R.1 At the conclusion of the trial, the Court took the matter under advisement. The following are the Court’s findings of fact and conclusions of law pursuant to Fed. R. Bankr.P. 7052.

Findings of Fact

The Debtor is a 59 year old individual who was born overseas but has lived in the United States for about the last 30 years. The Debtor obtained a degree in engineering in Manchester, England. The Debtor has been employed by Chrysler for over 25 years, and is presently a corporate quality engineer. The Debtor has a stable job with a six figure income. The Debtor is married, and for the past 14 years has lived at 2088 Rookery Drive, in Rochester Hills, Michigan (“Debtor’s Home”).

Although the precise date is not clear from the record, the Debtor at some point wanted to get into the restaurant business. Sometime in 2010, the Debtor and his wife, Salmi Rauf, got involved in a restaurant venture with another couple, Shahid Tahir, and his wife, Huma Shahid. Like the Debtor, Tahir had a job that was not in the restaurant business. He was a physical therapist who worked for his brother’s company. Initially, the two couples got involved in operating a small food kiosk. Eventually they planned to open restaurants. They created an entity by the name of International Fusion, LLC (“Fusion”). The Operating Agreement (“Operating Agreement”) for Fusion, dated August 19, 2010 (exhibit 10), identifies only two limited liability company members: Huma Shahid and Salmi Rauf, the two wives. Neither the Debtor nor Tahir were named as members of the limited liability company. The Operating Agreement listed the Debtor’s Home as the business address for Fusion, and stated that Fusion would operate under the assumed name of Thai Masala. The Operating Agreement further stated that Fusion would be capitalized by “an amount between $25,000 and $50,000 to be determined by the Members .... ” The Operating Agreement does not provide for either Tahir or the Debtor to act on behalf of Fusion in any capacity. Although not specified in writing, the thinking was that Tahir and his wife would be “silent partners,” and the Debtor and his wife would handle running the restaurants for Fusion.

In early November, 2010, Fusion opened a restaurant at Great Lakes Crossing, a shopping center owned by the Taubman Company (“Taubman”), a nationally recognized shopping mall owner and operator. The restaurant at Great Lakes Crossing was known as Thai Masala. Although the Debtor was not a member of Fusion, the Debtor was involved in the negotiations [842]*842with Taubman for the lease for Thai Masa-la, as evidenced by correspondence between the Debtor and Taubman in September, 2010 (exhibit J).

During the same time that the Debtor was negotiating a lease for Thai Masala with Great Lakes Crossing, the Debtor also began negotiating a lease for a restaurant to be opened in a 182,000 square foot shopping center located on Ford Road in Westland, Michigan, owned by Wildwood. George Nyman is the owner of Wildwood. George Nyman is also a broker, builder and property manager who has been in the real estate business since 1970. In addition to his interest in Wildwood, he is also an owner of Professional Property Management Company (“Professional Property”), a property management company that he opened in 1975 that manages apartments, shopping centers and office buildings for entities that he has an interest in.

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504 B.R. 838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wildwood-property-llc-v-rauf-in-re-rauf-mieb-2014.