1:09-ap-01109•Smith v. Papera
Texto completo
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 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
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 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
Continue sua pesquisa no ChatGPT ou Claude
Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.