Collum v. Redden (In re Redden)
Collum v. Redden (In re Redden)
Opinion of the Court
MEMORANDUM OPINION
The matter before the court is Edward R. Collum’s Amended Complaint to Determine Nondischargeability of Debt. Collum asserts nondischargeability on his claim of $158,950 on the basis of 11 U.S.C. § 523(a)(2)(A) which provides that a discharge
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 or an insider’s financial condition
Trial was held on August 23, 1999. Facts stipulated by the parties and found by the court are as follows:
On May 6, 1992, Collum as seller and E.C.I. Properties, Inc. and/or Assigns, as buyer, executed a sales contract of property located at 10 E. Chapman, Alexandria, Virginia.
Debtor eventually wanted to sell the Quincy Street property and requested in December of 1993 that Collum release his deed of trust on it to facilitate the sale. Debtor wanted Collum to take a substitute deed of trust on property located at 514 Fontaine Street
At trial, Collum testified that on June 11, 1994, Debtor proposed that the Fon-taine Street property be substituted for the Quincy Street Property, the existing second deed of trust having been paid off with the proceeds of sale of Quincy Street. Collum was aware that the first mortgage on that property was in the amount of over $300,000, asked Debtor about it, and was assured that the mortgage was current. He also testified that the tax assessed value of the property was $400,000. Witness John Seeley testified that he was present on June 11, 1994, when Debtor asserted that “everything” was “up to date” on the Fontaine Street property. However, the fact of the matter was that Debtor had ceased paying the first mortgage in January of that year and, on April 22, 1994, had conveyed the property to Thomas Duling.
To prove nondischargeability under § 523(a)(2)(A), Collum must establish that Debtor engaged in false pretenses, false representation or actual fraud on which Collum justifiably relied and by which he was damaged. It is clear from the credible testimony that Collum was damaged by this transaction: the Fontaine Street property was foreclosed upon and Collum lost the security for his debt when he released the $67,000 escrow and allowed the Fontaine Street property to be substituted for it in reliance on Debtor’s representations. It is also clear that Debtor falsely represented that he owned the Fontaine Street property and that the mortgage on it was current. He had already conveyed it to Duling when he purported to grant a second deed of trust to Collum with respect to it, and the deed to Duling was recorded before Collum agreed to the allonge or released the escrow.
Debtor testified that on April 22, 1994, he put the Fontaine Street property into a land trust agreement because he was making a will and his attorney suggested that he put properties in trust. He asserts that he retained full legal and beneficial ownership of the property despite the transfer. The documents are to the contrary. The land trust agreement provided that Debt- or’s interest was a personal one in the earnings and proceeds of the property. It expressly stated that Debtor “shall not have any legal or equitable right, title or interest, as realty, in or to the real estate.”
Debtor asserts that the Certificate of Partial Satisfaction,
The only issue remaining for us to decide is whether Collum justifiably relied on Debtor’s representations. In Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995), the debtor obtained from the Fields a waiver of rights under a due-on-sale clause without disclosing that he had already-conveyed the property in question. The bankruptcy court held that the debtor had made false representations upon which the Fields had relied, to their detriment, in extending credit. The bankruptcy court held, however, that a reasonable person would have checked whether the property had been conveyed before agreeing to waive their rights and so the debt was dischargeable. The Supreme Court reversed, holding that under § 523(a)(2)(A) only justifiable, not reasonable, reliance, was required. The Court described justifiable rebanee as “a matter of the qualities and characteristics of the particular plaintiff, and the circumstances of the particular case, rather than the application of a community standard of conduct to all cases.” 516 U.S. at 71, 116 S.Ct. at 444. In addition, reliance can be justified even though the plaintiff could have ascertained the falsity of the representations if the plaintiff had investigated.
In the matter before us, Collum’s reliance on Debtor’s representations about the Fontaine Street property was justified. He knew that the sale of the Quincy Street property paid off the second ben on the Fontaine Street property and that he would therefore be the second instead of third lienholder. He knew the amount of the first mortgage and that Debtor owned the property. When Debtor offered the property to Collum as substitute collateral in June of 1994, Collum had no reason to suspect it had been transferred after December 1993 when Debtor first offered it to him or that the mortgage was in default. Debtor in fact assured him that the mortgage was current and the testimony of witness John Seeley is reasonably construed as confirming this. Thus, there were none of the “red flags” which Field v. Mans referred to as indications that Collum should have investigated further. Al
. The court's jurisdiction was not at issue. This Memorandum Opinion constitutes our findings of fact and conclusions of law.
. This contract is not part of the record.
. The only deed of trust dated July 16, 1992, in the record identifies Lot 60, Block D, in the Villa Heights subdivision. It appears that this is the Quincy Street property.
.The Fontaine Street property is sometimes referred to in pleadings as having a street number of 614 but the deed of trust dated December 21, 1993, identifies it as number 514.
. The Fontaine Street property was foreclosed upon on November 27, 1994.
. Another deed of trust that had been in second position was satisfied, apparently by means of the sale of the Quincy Street property-
. Also on June 11, 1994, Collum executed an allonge (modification of the promissory note) when he agreed to move his lien to the Fon-taine Street property. Debtor asserts that the allonge served only to benefit Collum in that it advanced the payment due date from the sixteenth to the first of each month, reduced the grace period for late payments from fifteen to five days, and accelerated principal payments and, therefore, Collum does not have a § 523(a)(2)(A) claim on the basis of the allonge. The allonge also provided that Debt- or would make curtailment payments on the principal in the amount of $10,000 on the second anniversary of the note "and the same amount biannually thereafter.” Previously, the parties had agreed in the addendum of May 6, 1992, to the sales contract that Collum “may request a curtail of $10,000 on the second anniversary” and biannually thereafter. (Emphasis added.) By the allonge, Debtor was required to make payments. Before Col-lum agreed to release the escrow he received a payment of $10,149 from the $67,000 in escrow. The balance was paid to Debtor’s father. This $10,149 was allocated as follows: approximately $5,000 as consideration for the curtailment, $5,000 to reduction of principal, and the balance toward interest. By virtue of the payment the note was brought current and the principal amount due to Collum was reduced from $67,000 to $62,000. The complaint, however, relies on the release of the $67,000 escrow as the basis for the nondischargeability of this debt. The allonge is not crucial to our analysis. Even if it were, it is part of a broader transaction in which Collum released his claim to the escrow and released the deed of trust in the Quincy Street property. The allonge is more evidence that the original debt was restructured, thus representing an extension, renewal or refinancing of credit.
. Duling was the trustee of a land trust into which Debtor placed the Fontaine Street property. Debtor asserts that he did so as part of his estate planning.
. Debtor also testified that by or in June of 1994 he had received at least one foreclosure notice. He didn't tell Collum this either.
. Although the property was "in trust”, the interest of Debtor, as the beneficiary', was, by the terms of the land trust agreement, an interest in personal property, not the real estate itself.
. According to the complaint, the judgment consisted of $62,000 plus interest of 11 per
. In his opening statement at trial, Debtor’s counsel argued that Collum knew of Debtor's financial problems because Debtor was in arrears to Collum.
. The land trust agreement stated that the Debtor as beneficiary had the right to direct the trustee in his dealings with the property in certain respects as detailed in the land trust agreement and the right to “manage and control” the property. However, Debtor's interest in the property was limited to that of personalty.
.Debtor asserts that he would have instructed Duling, as trustee of the land trust, to execute another deed of trust if Collum had told him to do so. This is both irrelevant and small comfort to Collum. Debtor materially misrepresented the facts about this property to induce Collum to release the escrow. Col-lum justifiably relied upon those misrepresentations and was injured as a result.
. The Certificate of Partial Satisfaction also noted that the unpaid portion of the note was being secured by property at 614 Fontaine Street. The pleadings in this adversary refer to 514 Fontaine Street.
Reference
- Full Case Name
- In re Robert C. REDDEN, Debtor. Edward R. Collum v. Robert C. Redden
- Status
- Published