Desert Palace, Inc. v. Molieri

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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
DANILO M. MOLIERI,
Debtor.
DESERT PALACE, INC.,
Plaintiff,
vs.
DANILO M. MOLIERI,
Defendant.
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Case No: 09-31696 TEC
Chapter 7
Adv. Proc. No. 09-3159 TC
Date: December 11, 2009
Time: 9:30 a.m.
Ctrm: Hon. Thomas E. Carlson
235 Pine St., 23rd Fl.
San Francisco, CA
MEMORANDUM RE DEFENDANT’S MOTION TO DISMISS
Upon due consideration, and for the reasons stated below, the
court denies Defendant’s motion to dismiss the complaint.
The complaint asserts a single claim for denial of discharge
under section 523(a)(2)(C), based on an alleged gambling debt in
the sum of $150,000, incurred 27 days before Defendant filed for
chapter 7 bankruptcy relief. 	Compl., ¶¶ 5-11.
Signed and Filed: December 10, 2009
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
December 11, 2009
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 09-03159 Doc# 11 Filed: 12/10/09 Entered: 12/11/09 10:35:03 Page 1 of 3

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The Bankruptcy Code does not define “luxury goods or
services.” 	Rather, it provides that such goods or services do not
include goods or services “reasonably necessary for the support or
maintenance of the debtor or a dependent of the debtor.” 	11 U.S.C.
§ 523(a)(2)(C)(ii)(II). 	Whether a gambling debt was reasonably
necessary for the support of maintenance of a debtor or a debtor’s
dependent is a question of fact, because it turns on the purpose
for which Debtor engaged in the gambling. 	Assuming, arguendo, that
the sole case cited by Defendant in support of his motion to
dismiss were binding on this court, it does not hold, as a matter
of law, that gambling debts are reasonably necessary for the
support of debtor. 	Rather, the court denied creditor’s section
523(a)(2)(C) claim on the evidence that Debtor gambled in a failed
effort to earn money to repay the creditors of his foundering
automobile sales business. 	In re Hall, 228 B.R. 483, (Bankr. M.D.
Ga. 1998).
*END OF MEMORANDUM**
Case: 09-03159 Doc# 11 Filed: 12/10/09 Entered: 12/11/09 10:35:03 Page 2 of 3

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Court Service List
Robert G. Aisenstein, Esq.
Law Offices of Robert G. Aisenstein
2114 Fountain Springs Dr.
Henderson, NV 89074
Joel K. Belway, Esq.
Law Offices of Joel K. Belway
235 Montgomery St. #668
San Francisco, CA 94104
Case: 09-03159 Doc# 11 Filed: 12/10/09 Entered: 12/11/09 10:35:03 Page 3 of 3