1:04-ap-01262•McCann v. Baker
Gesamter Gesetzestext
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION In Re DAVID ALLEN BAKER, JR. DESIRAE LYNN BAKER Debtors JOHN M. MCCANN Plaintiff vs. DAVID ALLEN BAKER, JR. Defendant : : : : : : : : : : : : : : : : : Case No. 04-14239 Chapter 7 Judge Hopkins Adversary Case No. 04-1262 This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio. IT IS SO ORDERED. Dated: October 04, 2005 ____________________________________________________________ Case 1:04-ap-01262 Doc 19 Filed 10/04/05 Entered 10/05/05 16:51:10 Desc Main Document Page 1 of 4
Case No. 04-14239 Adv. Case No. 04-1262 2 MEMORANDUM OF DECISION ON JUDGMENT ENTRY GRANTING SUMMARY JUDGMENT The Plaintiff, John M. McCann (“McCann”), commenced this adversary proceeding with the filing of a complaint to determine dischargeability pursuant to 11 U.S.C. § 523(a)(4). Presently before the Court is a summary judgment motion (“Motion”) (Doc. 16) filed by McCann. McCann seeks a nondischargeable judgment under § 523(a)(4) for embezzlement. The Sixth Circuit has articulated the applicable legal standard as follows: Federal law defines “embezzlement” under section 523(a)(4) as “the fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come.” A creditor proves embezzlement by showing that he entrusted his property to the debtor, the debtor appropriated the property for a use other than that for which it was entrusted, and the circumstances indicate fraud. Brady v. McAllister (In re Brady), 101 F.3d 1165, 1173 (6th Cir. 1996) (citations omitted). McCann contends that the Defendant, David Allen Baker, Jr. (“Baker”), embezzled McCann’s wages under the pretense of paying the wages into a retirement plan. By his Motion, McCann argues that he is entitled to judgment under the doctrine of collateral estoppel. On September 22, 2003, the Court of Common Pleas, Butler County, Ohio, entered a default judgment against Baker in favor of McCann. See Doc. 16 at Ex. 3. The controlling authority on the preclusive effect of a state court default judgment is Sill v. Sweeney (In re Sweeney), 276 B.R. 186 (B.A.P. 6th Cir. 2002). In Sweeney, the BAP adopted the following two-part test to determine whether a default judgment from an Ohio state court is to be afforded preclusive effect in federal court: Case 1:04-ap-01262 Doc 19 Filed 10/04/05 Entered 10/05/05 16:51:10 Desc Main Document Page 2 of 4
Case No. 04-14239 Adv. Case No. 04-1262 3 "First, the plaintiff must actually submit to the state court admissible evidence apart from his pleadings. . . . Second, the state court, from the evidence submitted, must actually make findings of fact and conclusions of law which are sufficiently detailed to support the application of the collateral estoppel doctrine in the subsequent proceeding." Id. at 193 (quoting Hinze v. Robinson (In re Robinson) 242 B.R. 380, 387 (Bankr. N.D. Ohio 1999)). Based upon this standard, the BAP concluded that the federal court "must have some reliable way of knowing that the [state court] decision was made on the merits." Id. at 194. Although Baker did not file an answer or otherwise appear in the state court action, the court held an evidentiary hearing prior to the entry of its judgment. The record of the hearing, embodied in a forty-nine page transcript, reflects the following oral findings by the court: “The Court will find that . . . [Baker] participated in the fraud of Mr. McCann.” . . . “We’ll find that [McCann] has proven . . . that there [were] amounts due for . . . some type of federally qualified retirement plan.” See Doc. 16, Ex. 2 at 46; Doc. 16, Ex. 2 at 40. The judgment itself provides: “THE COURT FINDS that [McCann] is entitled to judgment against [Baker] for fraud . . . in the amount of $31,943.58.” See Doc. 16, Ex. 3. Based upon the extensive evidentiary record and the specific findings made by the state court, this Court concludes that the state court judgment is entitled to preclusive effect in this proceeding. Given the state court finding of fraud related to amounts that should have been applied to McCann’s retirement plan, this Court further holds that McCann has sustained his burden of proving embezzlement under the Brady standard. Case 1:04-ap-01262 Doc 19 Filed 10/04/05 Entered 10/05/05 16:51:10 Desc Main Document Page 3 of 4
Case No. 04-14239 Adv. Case No. 04-1262 4 For the foregoing reasons, the Motion will be GRANTED. McCann is entitled to judgment in the amount of $31,943.58, plus post-judgment interest from September 22, 2003, to the entry of this Court’s judgment. A judgment to this effect will be entered. Copies to: Lisa M. Ellis lmellis@rslegal.com William Theodore Knoebber tedknoebber@fuse.net U.S. Trustee ustpregion09.ci.ecf@usdoj.gov ### Case 1:04-ap-01262 Doc 19 Filed 10/04/05 Entered 10/05/05 16:51:10 Desc Main Document Page 4 of 4
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