Smith v. Papera

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
DAVID ROBERT PAPERA, 	No. 09-11651
Debtor(s).
______________________________________/
ARLO HALE SMITH,
Plaintiff(s),
v. 	A.P. No. 09-1109
DAVID ROBERT PAPERA,
Defendant(s).
_______________________________________/
Memorandum on Second Motion to Dismiss
_________________
Despite the liberal use of exclamation points, plaintiff’s amended complaint reads like little
more than the unhappiness of an attorney who did not get paid by a client. 	Aside from allegations of
oral misrepresentation of financial condition - which must be in writing to establish a claim of
nondischargeability pursuant to § 523(a)(2) - the complaint alleges only false promises, not false facts.
The issue is whether such allegations can state a claim under § 523(a)(2).
The prevailing rule followed by most of the courts is that fraud may be predicated on promises
Entered on Docket
January 13, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 09-01109 Doc# 25 Filed: 01/13/10 Entered: 01/13/10 12:31:33 Page 1 of 2

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made with a present intention not to perform them. 37 Am. Jur.2d Fraud and Deceit § 90. See, e.g.,
Matter of Bercier, 934 F.2d 689, 692 (5th Cir. 1991). 	Accordingly, it appears that the complaint is
sufficient to survive a motion to dismiss. How plaintiff expects to prove that defendant intended to
deceive him the court has no idea. Moreover, repeated reliance of an attorney on a series of breached
promises to pay does not seem justifiable and undermines the case even if intent is proven.
Nonetheless, these are issues for trial and do not render the complaint subject to dismissal.
Since this is not a contract case, the fact that there might not have been a written contract is
irrelevant, as well as being outside the four corners of the complaint.
For the foregoing reasons, defendant’s motion to dismiss the amended complaint will be
denied. 	Defendant may have 20 days after entry of an appropriate order, which plaintiff shall submit,
to answer the complaint.
Dated: January 13, 2010
SAlan Jaroslovsky
U.S. Bankruptcy Judge
Case: 09-01109 Doc# 25 Filed: 01/13/10 Entered: 01/13/10 12:31:33 Page 2 of 2