State Farm Bank, FSB v. Venegas

OCR transcription for search; preserved printed pages are authoritative

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UNITED STATES BANKRUPTCY COURT
For The Northern District Of California

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eC a

U.S. GOVERNME

INFORMATION

cPoA MOTION FOR SUMMARY JUDGMENT 14 ADVERSAR

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Entered on Docket
May 27, 2010

GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF CALIFORNIA

In re Case No. 08-54541-ASW
Chapter 7

ISRAEL VENEGAS aka VENEGAS

ISRAEL aka ISRAEL ARCOS and

LETICIA ARCOS VENEGAS aka

LETICIA G. ARCOS aka

A. VENEGAS LETICIA aka

G. ARCOS LETITIA,

Debtors.

STATE FARM BANK, FSB, Adversary No. 08-5328-ASW
Plaintiff,
VS.

LETICIA A. VENEGAS aka
LETICIA ARCOS VENEGAS,

Defendant.
/

MEMORANDUM DECISION ON STATE FARM BANK’S

MOTION FOR SUMMARY JUDGMENT
Before the Court is the motion of Plaintiff State Farm Bank,
FSB (“State Farm”) for summary judgment against Defendant Leticia
Arcos Venegas (“Debtor”). State Farm is represented by Cheryl C.

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UNITED STATES BANKRUPTCY COURT

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Rouse, Esq. of the Law Offices of Rouse & Bahlert. Debtor is
represented by Samuel A. Maverick, Esq. of the Law Offices of
Rodney M. Kleman. Debtor has filed no written opposition to
State Farm’s motion.

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.

T.

FACTUAL BACKGROUND

In September 2006, Debtor opened a credit card account with
State Farm. Affidavit of State Farm Bank, FSB Verifying Documents
in Support of Plaintiff’s Motion for Summary Judgment (the
“Affidavit”) at 7 5b. On June 19, 2008, Debtor paid the attorney
representing Debtor in this bankruptcy case and participated in
credit counseling. Statement of Financial Affairs at q 9,
Certificate of Credit Counsel filed August 19, 2008. Between
June 24, 2008 and July 17, 2008, five days after paying her
bankruptcy attorney, Debtor used her State Farm-issued Visa credit
card in forty-five transactions and incurred $6,898.37 in charges
for cash, goods and services, and fees. Affidavit at 5S(e). The
credit limit on Debtor’s account with State Farm was $6,500.
Affidavit at 7 5c. Prior to incurring the charges at issue
Debtor’s account was in good standing and had a zero balance.
Affidavit at @ 5i.

The charges at issue include, among other things, two cash
advances totaling $3,200.00, with associated fees of $96.00; one
charge at “Disney-WOTC” in the amount of $1,046.10; eight charges

at various restaurants totaling $428.88; two charges at Macy’s

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MOTION FOR SUMMARY JUDGMENT

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UNITED STATES BANKRUPTCY COURT

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Calbet

totaling $347.36; one charge at Toys ‘R’ Us in the amount of
$175.88; one charge at the Monterey Bay Aquarium in the amount of
$167.80; $32.22 at TLF*Flower Magik; $18.00 at Top Nails; $5.90 at
Sherri’s Cookies; $5.98 at Geni Sweet Things; $22.07 at Choice
Fashion; $48.47 at Designer Perfume; a total of $207.25 at the
AT&T Ballpark; and a total of $36.25 at Maya Cinemas. Affidavit,
Exhibit A.

Debtor, along with her joint-debtor husband, filed a
voluntary Chapter 7 bankruptcy petition on August 19, 2008 (the
“Petition Date”). The cash advances were incurred on or within 70
days of the Petition Date, and the charges for goods and services
were incurred on or within 90 days of the Petition Date.

According to Debtor’s Schedules, Debtor was unemployed
beginning April 16, 2008. Debtor ceased receiving disability
payments on June 1, 2008 and began receiving unemployment benefits

on June 23, 2008. Schedule I.

Il.

PROCEDURAL BACKGROUND

On November 24, 2008, State Farm commenced the instant
Adversary Proceeding by timely filing a Complaint to Determine
Dischargeability of Debt (the “Complaint”). The Complaint seeks a
determination that a credit card debt of $6,898.37, plus interest
and costs, is nondischargeabile under 11 U.S.C. § 523 (a) (2) (A) and
(C).

Debtor filed an Answer to Complaint of State Farm Bank, FSB

on December 23, 2008 (the “Answer”).

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MOTION FOR SUMMARY JUDGMENT
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On March 19, 2009, State Farm’s counsel served Debtor with
Plaintiff’s First Set of Interrogatories, First Request for
Admissions and First Request for Production of Documents (the
“Discovery”). Declaration of Cheryl C. Rouse in Support of
Plaintiff’s Motion for Summary Judgment (“Rouse Declaration”) at
q¢ 3. The time to answer the Discovery expired on April 21, 2009.
On May 11, 2009, State Farm’s counsel wrote to Debtor’s counsel
advising that the time to respond had expired and requesting that
the responses be served. Id. at 9 4. Despite the efforts of
State Farm’s counsel, Debtor has never responded to the Discovery
or requested an extension of time to respond. Id.

On June 25, 2009,.State Farm filed Plaintiff’s Motion for
Summary Judgment (the “Motion”). On September 9, 2009, the Motion
was heard and the Court issued an Order Ordering State Farm Bank
to Provide Declaration in Support of Motion for Summary Judgment
{the Sorder”) . The Order required State Farm to file a
declaration authenticating the credit card statements. filed by
State Farm as an exhibit to the Complaint and an appendix to the
Rouse Declaration. In response to the Order, State Farm filed the

Affidavit on October 12, 2009.

IIl.
ANALYSIS
The Motion seeks Summary Judgment against Debtor. In support
of the Motion, State Farm relies primarily on the “deemed
admissions” arising from Debtor’s failure to respond timely to
Plaintiff’s Request for Admissions Under Federal Rule of

Bankruptcy Procedure 7036 and Federal Rule of Civil Procedure 36

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served on Debtor on March 19, 2009 (the “Request for Admissions”).
However, independent of the deemed admissions, there is

substantial evidence in support of the Motion.

A. Requirements for Summary Judgment under FRCP 56

Federal Rule of Civil Procedure (“FRCP”) 56, made applicable
by Federal Rule of Bankruptcy Procedure (“FRBP”) 7056, provides
that summary judgment shall be granted where the pleadings,
depositions, answers to interrogatories, admissions or affidavits
show that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). Therefore, to prevail on a motion for summary
judgment, State Farm must make a prima facie showing that no
genuine issue of material fact exists as to the elements of the
causes of action alleged in the underlying Complaint. Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

B. Deemed Admission under FRCP 36(a) (3)

In support of summary judgment, State Farm relies on Debtor’s
failure to respond to the Request for Admissions. Pursuant to
FRCP 36(b), made applicable by FRBP 7036, a party is deemed to
conclusively admit any matter stated in a request for admission
unless that party serves upon the requesting party a written
response or objection within 30 days. Although FRCP 36(b) allows
a party to move for withdrawal or amendment of such deemed
admissions, no such motion has been made in the instant case.
Without such a motion, the deemed admissions stand. Layton v.

Int’l Ass'n of Machinists and Aerospace Workers, 285 F.App’x. 340,

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2008 WL 1734191 (9% Cir. 2008) (citing American Auto. Ass’n v. AAA

Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1119-20 (5th

Cir. 1991) (abuse of discretion for the court to sua sponte
withdraw admissions without proper motion)). In addition, the
Ninth Circuit has held that “[u]nanswered requests for admissions
may be relied on as the basis for granting summary judgment.”

Conlon v. United States, 474 F.3d 616, 621 (9° Cir. 2007).

The issue for the Court’s consideration of the instant Motion
is whether the statements deemed to be admitted by Debtor under
FRCP 36 are sufficient to support the entry of summary judgment in
this matter under FRCP 56.

Interpreting Federal Rule of Civil Procedure
56 the Ninth Circuit has held that it is “the
burden of the moving party to demonstrate the
absence of any material fact.” This is true,
even when the party against whom the motion
for summary judgment is directed has not filed
any opposition. A court should deny a motion
for summary judgment if “the movant's papers

themselves demonstrate the existence of
a material issue of fact.”

Cristobal v. Siegal, 26 F.3d 1488, 1494-95 (9th Cir.

1994) (citations omitted). Even though Debtor has failed to oppose
this motion, Cristobal makes clear that the Court must nonetheless
determine whether State Farm has demonstrated that no material
fact exists as to the elements of the alleged causes of action.
The Court must closely examine the elements of the causes of
action and the statements State Farm seeks to have deemed admitted
by Debtor. In addition, the Court may take notice of the filings

in this case. Fed. R. Evid. 201.

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Cc. Causes of Action Alleged in the Complaint
The Complaint has alleged two causes of action -- Bankruptcy
Code § 523(a) (2) (A) and Bankruptcy Code § 523(a) (2) (C). The

pertinent language from Bankruptcy Code § 523(a) is 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 .. . financial
condition .

or

(C) (i) for purposes of subparagraph (A)--

(I) consumer debts owed to a single
creditor and aggregating more than $550 for
luxury goods or services incurred by an
individual debtor on or within 90 days before
the order for relief under this title are
presumed to be nondischargeable; and

(II) cash advances aggregating more than
$825 that are extensions of consumer credit
under an open end credit plan obtained by an
individual debtor on or within 70 days before
the order for relief under this title, are
presumed to be nondischargeable

11 U.S.C. §523(a).

1. Bankruptcy Code § 523 (a) (2) (C)

Bankruptcy Code § 523(a) (2) (C) provides two presumptions for
nondischargeability under 523(a) (2) -- one for luxury goods and
services and one for cash advances. Consumer debts owed to a

single creditor and aggregating more than $550 for luxury goods

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and services incurred by an individual within 90 days of the order
for relief are presumed nondischargeable under

§ 523(a) (2) (C) (i) (I). The presumption period under

§ 523(a) (2) (C) (i) (II) for cash advances aggregating more than $875
is 70 days prior to the order for relief.

However, “goods or services reasonably necessary for the
support or maintenance of the debtor or a dependant of the debtor”
as defined in Bankruptcy Code § 523(a) (2) (C) (ii) (II), are not
considered “luxuries.” The mere fact that goods or services do
not qualify as necessities does not automatically mean that they

are “luxuries.” Shah v. Shaw (In re Shaw), 294 B.R. 652 (Bankr.

W.D. Pa. 2003). Considerations bearing on whether a purchase
qualifies as a “luxury” purchase include the following:
circumstances surrounding the purchase; whether the item serves a
significant family function; and whether the purchase shows
financial irresponsibility. Purchases that are extravagant,
indulgent, or nonessential under the circumstances are considered

“luxury” purchases. General Motors Acceptance Corp. v. McDonald

(In re McDonald), 129 B.R. 279, 283 (Bankr. M.D. Fla. 1991); Meyer

v. Meyer (In re Meyer), 296 B.R. 849, 865 (Bankr. N.D. Ala. 2003).

2. Bankruptcy Code § 523(a) (2) (A)

Without the application of the two presumptions of
nondischargeability, the creditor must prove actual fraud by a
preponderance of the evidence to prevail ina nondischargeability

action under Bankruptcy Code § 523(a) (2) (A). In re Etell, 188

F.3d 1141, 1144 (9 Cir. 1999); Grogan v. Garner, 498 U.S. 279,

286 (1991). The elements of a fraud cause of action are: (1) the

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debtor made representations to the creditor; (2) the debtor knew
the representations were false at the time they were made; (3) the
debtor made the representations with the intention and purpose of
deceiving the creditor; (4) the creditor relied on the
representations; and (5) the creditor sustained the alleged loss
and damage as the proximate result of the representations having

been made. Citibank v. Eashai (In re EFashai), 87 F.3d 1082, 1086

(OT! Cir. 1996). With respect to a credit card debt, where the
purchases are made with no intention at that time to repay the
debt, the debt must be held non-dischargeable pursuant to

§ 523(a) (2) (A). Citibank v. Dougherty (In re Dougherty), 84 B.R.

653, 657 (9% Cir. BAP 1988).

The intention of the debtor to repay the creditor is central
to both the second and third factors of the fraud cause of action
under Eashai. The Dougherty decision set forth a list of twelve
non-exclusive factors to be considered in determining debtor’s
intent.! The Ninth Circuit adopted these factors in Eashai, 87
F.3d at 1088.

As to the fourth element of fraud under Eashai, the issuer of
a credit card “justifiably relies on a representation of intent to

repay as long as the account is not in default and any initial

' The factors are: (1) the length of time between the charges

made and the filing of bankruptcy; (2) whether or not an attorney has
been consulted concerning the filing of bankruptcy before the charges
were made; (3) the number of charges made; (4) the amount of the
charges; (5) the financial condition of the debtor at the time the
charges are made; (6) whether the charges were above the credit limit
of the account; (7) whether the debtor made multiple charges on the
same day; (8) whether or not the debtor was employed; (9) the debtor’s
prospects for employment; (10) financial sophistication of the debtor;
(11) whether there was a sudden change in the debtor’s buying habits;
and (12) whether the purchases were made for luxuries or necessities.
Dougherty, 84 B.R. at 657.

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investigations into a credit report do not raise red flags that

would make reliance unjustifiable.” Anastas v. American Savings

Bank (In re Anastas), 94 F.3d 1280, 1286 (9th Cir. 1996).

D. Summary Judgment is Supported by Deemed Admissions

Applying the deemed admissions, State Farm has made a prima
facie showing as to both causes of action alleged in the
Complaint. Request for Admission 56 states that Debtor incurred
the charges at issue were incurred through false pretenses, a
false representation or actual fraud.

Beyond this conclusory admission, however, the Request for
Admissions establishes the elements of actual fraud required under
Bankruptcy Code § 523(a)(6). Paragraph 4 of the Request for
Admissions establishes that Debtor made, authorized or allowed
another to make the charges at issue. Paragraph 52 of the Request
for Admissions states that at the time the charges at issue were
made, Debtor did not have the intent to repay the debt. Further,
the Request for Admissions sets forth additional elements that
have been held to be indicative of fraudulent intent under the so-
called “Dougherty factors.”* Paragraph 54 of the Request for
Admissions provides that Debtor does not dispute that State Farm
justifiably relied on Debtor’s misrepresentation of her intent and
ability to repay the charges at issue.° Finally, Paragraph 55 of
the Request for Admissions establishes that State Farm sustained

loss and damages in the amount of $6,898.37, which balance State

> See Request for Admissions, @1 6, 7, 19, 20, 29, and 31-52.

3 State Farm’s justifiable reliance is also supported by Request

for Admissions @I@%@ 27 and 28 and Affidavit at 51.

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Farm is unable to collect, as a proximate result of extending
credit based on Debtor’s misrepresentations.

The Request for Admission also establishes the elements for
the Complaint’s cause of action under Bankruptcy Code

§ 523 (a) (2) (C). ee Request for Admission, W710, 11 and 19.

E. Further Evidence in Support of Summary Judgment

Although the Motion relies primarily on the deemed
admissions, the pleadings in support of the Motion also cite to
other evidence outside these deemed admissions. Debtor’s credit
card statements, submitted as an attachment on the Complaint and
the Rouse Declaration, show that the charging activity during the
pre-petition period at issue was inconsistent with, and
represented a sudden change from, Debtor’s prior use of the
account. Before incurring the charges at issue, Debtor’s account
had a zero balance and was in good standing. The charges at issue
thereafter exceeded the credit limit on Debtor’s account and
Debtor made no payment on the account after incurring the charges.

The detail of the charges incurred also supports the
application of the presumptions for nondischargeability under
Bankruptcy Code § 523(a) (2) (C) (i) (I) and (ITI). The charges at
issue were all incurred on or within the relevant time periods
‘before Debtor filed her bankruptcy petition. The-charges include
two cash advances totaling $3,200. Most of the remaining charges
appear, on their face, to be for luxury goods and services |
incurred within the 90-day presumption period under section
523(a) (2) (C) (i) (I), and includes such charges as $1,406.10 at

Disneyland; $428.88 at various restaurants; $207.25 at the AT&T

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Ballpark; $175.88 at Toys “R” Us; $167.80 at the Monterey Bay
Aquarium; $48.47 at Designer Perfume; $36.25 at Maya Cinemas;
$32.22 at TLF*Flower Magik; $22.07 at Choice Fashion; $18.00 at
Top Nails; $5.98 at Geni Sweet Things; and $5.90 at Sherri’s
Cookies. An additional $235.46 represents cash advance fees, a
late fee, an overlimit fee, and finance charges based solely on
the charges at issue.’ State Farm appears to have a presumption of
nondischargeability for approximately $6,322.67, not including
charges for transportation, dental and education costs, which are
likely reasonably necessary expenses.

There is additional support for the contention that Debtor
was in a poor financial state when Debtor incurred the charges at
issue prior to filing for bankruptcy. According to Schedules I
and J of Debtor’s petition, Debtor and her spouse had joint
monthly income of $4,770.09 and monthly expenses of $4,828.00, not
including payments on the subject credit card debt. Debtor was
unemployed from April 16, 2008, and relied on disability and
unemployment compensation as sources of income. Further,
according to Debtor’s Statement of Financial Affairs and
Certificate of Credit Counseling, Debtor contemplated filing for
bankruptcy, consulted an attorney regarding relief under
bankruptcy law, and attended credit counseling. Nonetheless,

Debtor proceeded thereafter to incur all of the charges at issue.

4 Bankruptcy Code § 523(a) (2) (A) prevents the discharge of “any
debt” respecting money, property, services, or credit that the debtor
has fraudulently obtained. Cohen v. de la Cruz, 523 U.S. 213, 218
(1998). As Cohen makes clear, “[o]nce it is established that specific
money or property has been obtained by fraud... ‘any debt’ arising
therefrom is excepted from discharge.” Id. at 218.

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State Farm has successfully carried its summary judgment
burden with respect to all the elements of fraud under 11 U.S.C.

§ 523(a) (2) (A), even without reliance upon the deemed admissions.

Iv.

CONCLUSION

For the reasons set forth in this Memorandum Decision, State
Farm’s Motion for Summary Judgment is granted. Counsel for State

Farm shall submit a proposed form of judgment after serving it for

SZ ucahueh

ARTHUR S. WEISSBRODT
UNITED STATES BANKRUPTCY JUDGE

review upon counsel for Debtor.

ay

DATED: May 26, 2010

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1 Court Service List
2 Plaintiff
State Farm Bank, FSB
3 c/o Becket & Lee LLP
16 General Warren Boulevard
4 P.O. Box 3001
Malvern, PA 19355
5
Plaintiff’s Attorney
6 Cheryl C. Rouse
Law Offices of Rouse and Bahlert
7 345 Franklin Street
San Francisco, CA 94102
8
Defendant
9 Leticia A. Venegas
225 Park Street
10 Salinas, CA 93901
11 Defendant’s Attorney
Samuel Maverick
12 Maverick Law Offices
1945 Murguia Avenue
13 Santa Clara, CA 95050-6933
14 U.S. Trustee
Office of the U.S. Trustee / SJ
15 U.S. Federal Bldg.
280 South lst Street #268
16 San Jose, CA 95113-3004
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