Shedlarski v. Webster

OCR transcription for search; preserved printed pages are authoritative

UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

AUTHENTICATE

At

Entered on Docket
April 17, 2007
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
1
FILED
° APR
3 13 2097
Uni C
Jose, Califor Court
5
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7 UNITED STATES BANKRUPTCY COURT
8 NORTHERN DISTRICT OF CALTFORNIA
9 |} In re: ] Case No. 15-56449-ASW
]
10 | David Dennis Webster, ] Chapter 7
]
11 Debtor. ]
]
12 ]
Eric G. Shedlarski, J Adversary No. 05-5627
13 ]
Plaintiff, ]
14] vs. ]
]
15 || David Dennis Webster, ]
]
16 Defendant. ]
]
17
18 MEMORANDUM DECISION
DETERMINING DEBT TO BE DISCHARGEABLE
19
20 Before the Court is a complaint by Eric G. Shedlarski
21 | (“Creditor”) against David Dennis Webster, the Delotor in this
22 || Chapter 7 case (“Debtor”). The complaint seeks a determination of
23 || non-dischargeability for a stipulated judgment of $8,039.27 plus
24] interest and costs based upon 11 U.S.C. §523(a)(2).?
25 The matter has been tried and submitted for decision. Debtor
26 | is represented by Henry B. Niles III, Esq. Credizor is pro se.
27
28 ' Unless otherwise noted, all statutory references are to Title 11, United States Code, as
amended in 2005 (“Bankruptcy Code”).
MEMORANDUM DECISION DETERMINING

INFORMATION

GPO 15

pee OSBER PCRS Filed: 04/13/07 Entered: 04/17/07 16:37:22 Page 1 of

UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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trial, Creditor called himself as witness. Debto: called himself
as witness.

This Memorandum Decision constitutes the Court’s findings of
fact and conclusions of law, pursuant to Rule 7052 of the Federal

Rules of Bankruptcy Procedure.

I.
FACTS

Debtor works in the computer industry in business development.
Debtor is not an attorney. Debtor leased residential property
located at 16040 Redwood Lodge Road, Los Gatos, California 95033
(the “Property”) to Creditor pursuant to a written lease agreement
dated January 24, 2004. Debtor and his ex-wife formerly utilized
the Property as their residence. Under the lease agreement,
Creditor paid Debtor a security deposit of $7,000.

Creditor vacated the Property on February 8, 2005. Debtor and
Creditor agreed that certain items would be deduczed from the
security deposit, leaving $4,790 of the security deposit owed to
Creditor. Debtor failed to return the $4,790 to reditor.

Creditor tried to work with Debtor to obtain the return of the
security deposit to no avail. Creditor hired counsel and, on
March 24, 2005, Creditor sued Debtor in state court for the return
of the $4,790 deposit, $9,580 in penalty damages, plus attorneys
fees and costs of suit.

In early 2005, Debtor knew he was in financial trouble.

Debtor had not paid the mortgage on the Property since November
2004. Debtor put the Property on the market in January or February

2005. On May 12, 2005, a Notice of Default was recorded against

MEMORANDUM DECISION DETERMINING

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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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the Property on behalf of Debtor’s mortgage lende:. On August 24,
2005, a Notice of Trustee’s Sale (“Notice”) was recorded against
the Property. The Notice set a trustee’s sale fo: September 13,
2005. Debtor attempted to find a buyer for the Property prior to
the trustee’s sale. Debtor testified that he believed, on the
basis of his correspondence with real estate professionals, that
there was $150,000 of equity in the Property in August 2005.
Debtor’s realtor held an open house on the Properizy on August 28,
2005.

Debtor represented himself in the state cour: litigation with
Creditor. A trial was set on or about September 7, 2005. In early
August 2005, Debtor testified that Creditor called Debtor when
Debtor was in Canada visiting relatives. Debtor ‘:estified that he
was unable to talk with Creditor at that time and Debtor
established another time to call Creditor.

Debtor testified that he returned Creditor’s call the next day
and had a fifteen-minute telephone conversation. Debtor testified
that, during that conversation, Debtor told Credi:zor that the
Property was in foreclosure and that Debtor was contemplating
bankruptcy, but that Debtor anticipated that the »roperty would
sell before bankruptcy at a price great enough to pay Creditor’s
debt. Debtor testified that he also told Credito:: that Debtor’s
marital difficulties were complicating the sale of the Property.
Debtor distinctly recalled offering Creditor a lien on the Property
in that phone conversation since Debtor believed there was
sufficient equity in the Property to pay such a lien. Debtor did

not recall if Debtor or Creditor initiated the idea of a lien.

“f

MEMORANDUM DECISION DETERMINING

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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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Creditor acknowledged that Debtor communicated with Creditor
and Creditor’s state court counsel regarding the state court
action. Creditor testified that he recalled one personal telephone
call with Debtor in August 2005 that lasted about five minutes.
Creditor testified that Creditor was aware of Debtor’s financial
distress during the relevant time period and knew that the Property
was for sale. Creditor was also aware that Debtor and his wife
were separated. Creditor maintained that he was unaware that the
Property was in foreclosure.

On the eve of the state court trial, Creditor’s counsel
confirmed with Debtor that Debtor had agreed to a lien on the
Property, and Creditor and Debtor entered into a stipulated
judgment in the state court action. Pursuant to the stipulated
judgment filed on September 7, 2005, Creditor agreed to reduce his
claim from approximately $14,500.00 to $8,039.27 and to forebear
from further collection actions. The parties also agreed that the
stipulated judgment would operate as a lien on the Property.

Creditor testified that Debtor failed to ment:ion the pending
foreclosure proceedings during the settlement negotiations.
Creditor asserted that he would not have entered <nto the
stipulated judgment if he had known of the pending foreclosure
proceedings. Creditor testified that he did not believe that

either a judgment or a judgment lien guaranteed payment of what

Debtor owed Creditor.

Debtor testified that during this period, Debtor was under the
mistaken belief of fact and law that, if he provided Creditor with
a judgment lien against the Property, that lien would survive a

non-judicial foreclosure sale under California law. Debtor

MEMORANDUM DECISION DETERMINING

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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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believed in August and September 2005 that at a foreclosure sale,
the Property would be subject to auction and would sell at the
highest price and all liens on the Property would be paid in order
of preference, i.e., that Creditor’s junior lien would be paid as
part of the foreclosure.

The trustee’s sale took place on September 13, 2005, and the
Property reverted to the lender. Debtor filed fo: bankruptcy on
September 29, 2005. Creditor testified that he did not learn of
the foreclosure sale until November 15, 2005. Creditor filed this
action on December 27, 2005.

Debtor asserts there was no factual basis fo: Creditor’s non-
dischargeability complaint and seeks an award of viees and costs

under 11 U.S.C. §523(d).

Il.
APPLICABLE LAW

A debt arising from actual fraud “other than a statement
respecting the debtor's or an insider’s financial condition” is
excepted from a Chapter 7 discharge pursuant to §523(a)(2)(A). The
elements of a claim under this statute are:

(1) a representation, fraudulent omission or deceptive

conduct by the debtor;

(2) knowledge of the falsity or deceptiveness of his

statement or conduct;

(3) an intent to deceive;

(4) justifiable reliance by the creditor on the debtor’s

statement or conduct;

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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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(5) damage to the creditor proximately caused by its reliance
on the debtor’s statement or conduct.

In re Harmon, 250 F.3d 1240, 1246 (9th Cir. 2001).

“A debtor’s failure to disclose material facts constitutes a
fraudulent omission under §523(a) (2) (A) if the deltor was under a
duty to disclose and the debtor’s omission was mot:ivated by an
intent to deceive.” Harmon, 250 F.3d at 1246 n.4.,

Absent a duty to disclose, the intent that must be shown for a
determination of nondischargeability under §523(a (2) (A) is actual
intent, not merely intent implied in law, or constructive intent,
Id. at 1249 n.10.

“Regardless of whether one is under a duty to speak or
disclose facts, one who does speak must speak the whole truth, and
not by partial suppression or concealment make the utterance

untruthful and misleading.” American Trust Co. v. California

Western States Life Ins. Co., 15 Cal. 2d 42, 65 (7.940).

The fact that a party had “constructive notice of the truth

from public records is no defense to fraud.” Bishop Creek Lodge v.

Scira, 46 Cal. App. 4th 1721, 1734 (1996). The existence of such
records “may be relevant to whether the victim’s ireliance was
justifiable, but it is not, by itself, conclusive.” Id.

The Bankruptcy Code is “designed to afford debtors a fresh
start, and we interpret liberally its provisions Zavoring debtors.”
in re Bugna, 33 F.3d 1054, 1059 (9th Cir. 1994). The Code’s
limited exceptions to the general policy of discharge are to be

construed narrowly. In re Riso, 978 F.2d 1151, 11.54 (9th Cir.

1992).

MEMORANDUM DECISION DETERMINING

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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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The plaintiff in an action for determination of
dischargeability under §523(a) bears the burden of proving all
elements of the claim(s) for relief asserted by a preponderance of

the evidence. Grogan v. Garner, 498 U.S. 279, 287 (1991).

Til.
ANALYSIS
1. Dischargeability Under Section 523(a) (2)

Here, Creditor has not met his burden of proof that Debtor
knowingly made a fraudulent omission with the intent to deceive
Creditor during settlement negotiations related to the state court
action. Despite Creditor’s allegations, the evidence does not
support a finding that Debtor knew or should have known that the
judgment lien would not survive foreclosure or that the Debtor
misrepresented the utility of that lien as consideration for
settlement.

The alleged fraudulent omission by Debtor is Debtor’s failure
to inform Creditor of the foreclosure proceedings pending against
the Property at the time of the settlement negotiations. Under the
terms of the settlement, Debtor conveyed a judgment lien against
the Property to Creditor. Creditor testified that he was not aware
that foreclosure proceedings were underway against: the Property at
the time of the settlement negotiations. On the other hand, Debtor
testified that he informed Creditor of the pending foreclosure by
phone while Debtor was in Canada visiting his fam:.ly.

Debtor testified that he was certain he had :nformed Creditor
of the pending foreclosure because Debtor had writ:ten several notes

to himself as to what Debtor planned to say to Creditor when Debtor

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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

1 |} returned Creditor’s call. Debtor emphasized that he included the

2 || foreclosure in his notes and reiterated that he described his

3 || financial trouble, his plans to sell the Property his marital

4) problems, and the pending foreclosure during the fifteen minute

5 || conversation with Creditor.

6 Creditor testified that he recalled having a phone

7 || conversation with Debtor in August 2005 and also testified that he

8 | knew the Property was for sale, that Debtor was experiencing

9 marital problems, and that Debtor was in financia!. trouble.

10 | Creditor testified that he did not know about the pending

11 | foreclosure. Creditor indicated that Creditor’s counsel, who

12 || represented Creditor in the state court action, may have received

13 |} such a call from Debtor about the pending foreclosure. Creditor’s

14 counsel did not testify and Creditor did not present any other

15 | evidence to rebut Debtor’s testimony that Debtor :-nformed Creditor

16 |} of the foreclosure.

17 Debtor and Creditor presented equally credib2.e testimony. The

18 || Court believes that Creditor is sure that Debtor did not tell him

19} of the pending foreclosure. It is possible that Debtor thought he

20 | told Creditor of the foreclosure but did not, e.g., because Debtor

21 |) was sure Creditor would get paid on his lien even in a foreclosure.

22 | It also is very possible that Debtor informed Creditor’s counsel,

23 | but not Creditor, of the pending foreclosure. That is perhaps the

24)/most likely scenario of what occurred. Either way, Debtor's

25 | conduct does not constitute fraud.

26 The parties agreed to settle their state court dispute on

27 |} terms that included a judgment lien against the Property in the

28 | amount of $8,039.27. A judgment lien is of speculative value and
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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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the lien’s worth turned on the ultimate exchange price of the
Property. The Property did not fetch a high enough price to pay
all claims against it, and Creditor received no compensation post-
sale. Had the Property sold on different terms, however,
Creditor’s lien might well have entitled him to payment.

Creditor asserts that Debtor was aware at the time of the
settlement negotiations that the judgment lien would not survive
the pending foreclosure sale and Debtor therefore knew that
Debtor's failure to mention the foreclosure was deceptive. Debtor
credibly testified that he had no such knowledge.

Debtor testified that he in fact anticipated that the Property
would sell at a high enough price that the Creditor’s junior lien
would have been paid. Debtor testified that the Property had a
mortgage of $800,000 and that he believed the Property would sell
for $1,060,000. Debtor further testified that the experienced real
estate professionals with whom Debtor dealt failed to anticipate
the low sale price at which the Property ultimately transferred.

To corroborate Debtor’s testimony, Debtor admitted documents
indicating that the Property had a listing price of $1,060,000 when
Debtor and Creditor entered settlement negotiations. Debtor also
testified that he was under the mistaken belief of fact and law
that, if the Property underwent a foreclosure sale, an auction
would take place and all liens would be paid.

Creditor presented no evidence to rebut Debtor’s credible
testimony other than his own equally credible testimony. Creditor
did not prove by a preponderance of the evidence that Debtor knew
or should have known of the judgment lien’s worthlessness.

Accordingly, it cannot be found that Debtor knew that a failure to

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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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mention the foreclosure would be deceptive. Whether or not Debtor
informed Creditor or Creditor’s counsel of the pending foreclosure,
Debtor’s conduct did not constitute fraud because Debtor lacked the
requisite intent. Harmon, 250 F.3d at 1249 n.10.

Creditor did not prove by a preponderance of the evidence that
Debtor intended to or acted with the purpose of deceiving Creditor.
Creditor did not introduce any evidence to suggest: that he was
justified in his reliance on Debtor’s representat:.ons. The Court
notes in this regard that Creditor does not allege that Debtor
represented that the Property was not in foreclosure. Debtor
argues that Creditor was represented by counsel in the state court
action and that it was the responsibility of Cred:.tor’s counsel to
investigate the status of the Property. The Notice was a matter of
public record and Creditor’s failure to investigate the status of
the Property by himself or by his counsel may not constitute

justifiable reliance. Bishop Creek, 46 Cal. App. 4th at 1734.

As for damages, Debtor argues that if Creditor had gone to
trial rather than accept the stipulated judgment ‘ien, Creditor
would have, at best, received a judgment lien like the one offered
by Debtor during the settlement negotiations and that such a lien
also would not have survived the foreclosure sale. On this basis,
Debtor argues that the alleged fraud left Creditor in the same
position among other creditors that he would have held had Creditor
proceeded with his state court claim.

Debtor’s argument assumes Creditor was faced with only two
options -- pursue the state court action and, if successful,
recover a judgment lien, or agree to a stipulated judgment and

accept a lien as settlement. Creditor testified that, had he known

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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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of the foreclosure, Creditor might have sought alternative
consideration during the settlement negotiations. Creditor’s
testimony was vague and speculative and Creditor failed to

substantiate his argument that he would have acted differently if

he had knowledge of the pending foreclosure sale. Creditor did not

prove by a preponderance of the evidence that he suffered damage as

a result of Debtor’s alleged fraud.
2. Costs and Attorney’s Fees Under Section 523(d)

Debtor seeks recovery of his attorney’s fees and costs
incurred during the course of this adversary proceeding under 11
U.S.C. §523(d). Bankruptcy Code Section 523(d) provides:

If a creditor requests a determination of

dischargeability of a consumer debt under subsection

(a) (2) of this section, and such debt is discharged, the

court shall grant judgment in favor of the debtor for the

costs of, and a reasonable attorney’s fee for, the
proceeding if the court finds that the posit:.on of the
creditor was not substantially justified, except that the
court shall not award such costs and fees if special
circumstances would make the award unjust.
A consumer debt is defined in Bankruptcy Code Sect:ion 101(8) as
“debt incurred by an individual primarily for a personal, family,
or household purpose.”

Once a debtor establishes that the obligation is a
dischargeable consumer debt, the burden shifts to the creditor to
show that the position of the creditor was “substantially
justified” or that “special circumstances” would make the award
unjust. In re Stine, 254 B.R. 244, 249 (9th Cir. BAP 2000). The
standard of substantial justification is met if the creditor

demonstrates a reasonable basis in law or fact to file an action.

id.

MEMORANDUM DECISION DETERMINING
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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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Here, Debtor failed to establish that the discharged debt is a
consumer debt. The debt here is comprised of an unreturned
security deposit that arose from the relationship of Debtor and
Creditor as landlord and tenant. Debtor testified that Debtor’s
activity as a landlord was clearly second to Debtor’s primary
career in the computer industry. It was while conducting business
as a landlord that Debtor became obligated to Creditor. Debts
related to rental activity incurred by part-time ‘andlords are not
consumer debts under Section 101(8). In re Pedigo, 296 B.R. 485,
491 (Bankr. S.D. Ind. 2003).% In Pedigo, a retired widower
incurred a loan accrued to prepare his property for use by a
tenant. The Pedigo court determined that the debtor’s dealings as
a part-time landlord were business oriented and held that the debt
was not a consumer debt. Id. Here Debtor’s obligation to Creditor
likewise developed from Debtor’s dealings as a part-time landlord
when he leased the Property to Creditor. Under Pedigo, the debt in
this case is not a consumer debt.

Debtor also asserts that Creditor lacked substantial
justification to bring this action. Debtor assert:s Debtor’s
actions or omissions were not fraudulent. Debtor also argues that
whether or not Creditor agreed to accept the stipulated judgment
lien as consideration for settling the state court: action, Creditor
would have received such a judgment lien after trial and that,
therefore, Creditor had no grounds to assert that Creditor suffered
damage as a result of fraud as a matter of law. Debtor’s argument

assumes Creditor was faced with only two options --- pursue the

* The Pedigo court interpreted Bankruptcy Code §101(7), the predecessor section to
Bankruptcy Code §101(8). Bankruptcy Code §101(8) continues former Bankruptcy Code §101(7)
without change.

MEMORANDUM DECISION DETERMINING

OQ
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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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state court action and, if successful, recover a judgment lien, or
agree to a stipulated judgment and accept a lien as settlement.
The Court disagrees with Debtor.

First, Creditor waived any penalty damages by settling with
Debtor. Had Creditor proceeded to trial rather trian settle with
Debtor, Creditor might have obtained a larger judgment. Second,
Creditor suggested that, had he known of the foreclosure, Creditor
might have sought alternative consideration for settlement and that
Creditor thereby suffered damage as a result of f:raud and had a
reasonable basis in law to assert his claim. Debzor did not
introduce evidence to rebut Creditor’s testimony. Finally, the
Court notes that a material fact was in dispute, 3.g., whether or
not Debtor informed Creditor of the pending foreclosure. It was
necessary for the Court to review substantial teszimony in order to
make a determination on that matter.

In sum, Creditor demonstrated that Creditor 1ad a reasonable
basis in law and in fact to assert his §523(a)(2) action. Stine,
254 B.R. at 249. Accordingly, the Court finds that Creditor had
substantial justification for filing this claim and Debtor's

request for fees and costs is denied. Id.

CONCLUSION

For the foregoing reasons, the claim asserted by Creditor
against Debtor is discharged under 11 U.S.C. §523(a). Debtor’s
request for attorney’s fees and costs under 11 U.33.C. §523(d) is
/ f /

/ f/f
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denied. Counsel for Debtor shall submit a proposed judgment after review by Creditor as to form.
Dated:
April 13, 2007
Carhur S. Weissbrodt
ARTHUR S. WEISSBRODT UNITED STATES BANKRUPTCY JUDGE
UNITED STATES BANKRUPTCY COURT For The Northern District Of California
MEMORANDUM DECISION DETERMINING Case:05-05627CHDOC# 23 Filed: 04/13/07
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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

—

Court Service List
Eric G. Shedlarski

1060 Valley View
Ben Lomond, CA 95005

David Dennis Webster
Pompano Beach, FL 33066
Henry B. Niles, III, Esq.

340 Soquel Ave. #105
Santa Cruz, CA 95062

Chapter 7 Trustee

John W. Richardson
5161 Soquel Dr. #F
Soquel, CA 95073

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U.S. Trustee

Office of the U.S. Trustee /
U.S. Federal Bldg.

280 S lst St. #268

San Jose, CA 95113-3004

No NY NY NY NY NY DN WD NO RFF Ee EO ESE Ele
ao SN BNO A FR WHO NO KF CO OO ON ONC Pe BY LY

MEMORANDUM DECISION DETERMINING

Cape OS OS6 27S BEEF Z3 Filed: 04/13/

1802 Eleuthera Point, Apt. F-4

Law Offices of Henry B. Niles III

SJ

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