Belmont Wine Exchange, LLC v. Nascarella (In re Nascarella)
Belmont Wine Exchange, LLC v. Nascarella (In re Nascarella)
Opinion of the Court
MEMORANDUM OPINION ON MOTION FOR RECONSIDERATION OF SUMMARY JUDGMENT ORDER
The Debtor gave his son some wine and authorized him to sell it through a company the Debtor owned. Belmont Wine Exchange, which bought some of that wine, ultimately obtained a default judgment against the Debtor for fraud. Belmont seeks to have that judgment determined to be nondischargeable under Bankruptcy Code § 523(a)(2)(A). But there is no evidence in the record that the Debtor ever made any misrepresentation — false or otherwise — to Belmont in connection with the
The Eleventh Circuit has made clear that Strang is limited to the partnership and agency context. Here, there was no partnership or agency relationship between the Debtor and his son. As a consequence, fraud cannot be imputed to the Debtor under Strang. Nor is Belmont’s claim rendered nondischargeable merely because the Debtor may have benefitted from the proceeds from the wine sale since there is no evidence that the Debtor committed any fraud. Accordingly, Belmont’s § 523 claim is barred as a matter of law.
Factual Background
The Debtor forms 8501
Sometime around 2006, the Debtor formed 8501, LLC.
8501 sells wine to Belmont
The wine that Peter was going to sell through 8501 came from the Debtor.
The wine was delivered to Belmont in two shipments: one on August 22, 2007; the other on October 18, 2007.
8501 disburses at least some of the sales proceeds to Peter
Peter negotiated all six of those payments and deposited them into 8501’s account at Wachovia Bank;
All of the disbursements to Peter (or for his personal expenses) were by check and signed by the Debtor since he was the only signatory on the Wachovia account. Peter was not a signatory on the Wachovia account. The Debtor apparently gave Peter permission to sign his name.
Belmont rejects the second shipment
The day after Belmont received the second shipment, it began inspecting the wine.
The parties were ultimately unable to resolve their dispute, which led Belmont to sue Peter (the son, not the Debtor) in state court.
Each of the counts was brought against each defendant.
The Debtor files for bankruptcy
For the next two years, Belmont attempt to collect on its judgment. Meanwhile, the Debtor and his son tried to undo it. Peter said a default judgment never should have been entered against him because he had filed an answer to the original complaint. And the Debtor, for his part, says he should have never been named in the suit because he had nothing to do with the sale to Belmont. Unable to undo the judgment, the Debtor filed this bankruptcy case on October 6, 2011.
Belmont seeks to have its claim determined nondischargeable and objects to the Debtor’s discharge.
Shortly after the Debtor filed for bankruptcy, Belmont filed this adversary proceeding objecting to the Debtor’s discharge and asking the Court to determine that its claim is nondischargeable.
The Debtor moved for summary judgment on Belmont’s discharge and dis-chargeability claims.
The Debtor argued that Belmont could not prevail on its dischargeability claim as a matter of law for two reasons.
Belmont filed the affidavit of John Khouri in opposition to the Debtor’s summary judgment motion.
At the conclusion of the summary judgment hearing, the Court entered summary judgment in favor of the Debtor on Belmont’s discharge claim under § 727(a)(2) because that section requires Belmont to prove that the Debtor transferred an asset, and the undisputed record evidence was that the house in Vermont was transferred by the Debtor and his wife since they held it as tenants-by-the entirety,
In articulating its reasoning, the Court first observed that res judicata does not apply in actions under § 523.
Therefore, the Court was required to look to the record evidence in this case anew to determine if the Debtor committed fraud.
Belmont now seeks reconsideration of this Court’s summary judgment ruling for two reasons.
Conclusions of Law
The Court did not overlook the Supreme Court’s decision in Strang. For starters, an argument cannot be overlooked if it was never raised in the first place. Belmont claims in its motion for reconsideration that it argued repeatedly — both in its filings and at the summary judgment hearing — that the Debtor can be liable for fraud regardless of whether he personally made the misrepresentations that form the basis of Belmont’s fraud claim.
The argument could have — indeed it should have — been raised previously. After all, the entire basis of the Debtor’s summary judgment motion (at least as to the claim under § 523) was that he never made any representations — fraudulent or otherwise — to Belmont. Rather than argue that it did not matter whether the Debtor made the misrepresentations, Belmont persisted in arguing that he did.
In fact, once the Court orally announced its ruling at the conclusion of the summary judgment hearing, Belmont’s counsel asked the Court if it could submit supplemental authority for the proposition that a debt is nondischargeable — without proof of actual misrepresentations by the debtor— if a creditor shows that a corporate entity committed a fraud and that the debtor was the “sole potential actor” on behalf of the corporation.
A motion for reconsideration is not a vehicle for disappointed parties to reliti-gate previously-decided issues by raising new theories.
That is because Strang and its progeny are not applicable here. The issue in Strang was whether a cause of action under a promissory note had been discharged in a previous bankruptcy case.
That holding was specifically premised on partnership and agency law. The Court noted that if one partner makes fraudulent misrepresentations to an innocent person in the course of partnership business, the remaining partners cannot escape liability by claiming they did not know about the misrepresentations.
Numerous courts since Strang have held that the fraudulent acts of a partner could be imputed to a debtor in determining whether a debt is nondischargeable under § 523(a)(2).
Belmont concedes in its motion for reconsideration that the most important test for determining the existence of a partnership is the intent of the parties.
A partnership is created only where both parties contribute to the labor or capital, have a mutuality of interest in both profits and losses, and agree to share in the assets and liabilities of the business. Here, none of those three factors are present.
Nor is Peter the Debtor’s agent as a matter of law. An agency relationship may be established expressly or by estoppel (i.e., an apparent agency relationship). The standard for determining whether an agency relationship exists is whether the purported principal has control over the alleged agent.
Peter may have been 8501 ’s actual or apparent agent. The Debtor (who appears to be 8501’s sole member) did authorize Peter to sell wine through the company. So the Debtor knowingly permitted Peter to act as if he was authorized by 8501. And there does not appear to be any dispute that Belmont believed Peter was authorized to act on behalf of the company. Of course, establishing an agency relationship — actual or apparent — with 8501 does not help Belmont. It does no good for Belmont to impute fraud to 8501 since the company is not the debtor.
In reality, Belmont is attempting to impute the fraud of 8501’s agent to its sole member. Belmont’s argument essentially is that Peter defrauded Belmont; 8501 is liable for any fraud committed by Peter since Peter had, at a minimum, apparent (if not actual) authority to act on its behalf; and the Debtor is liable for that fraud since he is 8501’s sole member. Numer
In fact, the bankruptcy court for the district of New Mexico, in In re Bruton, refused to impute fraud to an owner of a limited liability company based on facts similar to those in this case.
David Bruton represented to the Bank that the sale price was sufficient to pay off the loan balance. He paid the Bank $15,000 upfront and explained that he would pay off the loan balance when he received the rest of the sales proceeds. In fact, the sales price was not sufficient to pay off the loan balance. Had the Bank known that, it would have taken some action to protect its interest. When the Brutons ultimately filed for bankruptcy, the Bank filed its dischargeability action.
The dischargeability action was brought against both David and Charlene even though it was undisputed that Charlene did not actively participate in the business; did not sign the loan or security agreement; did not participate in the sale of the business; and did not make any affirmative misrepresentations to the Bank.
At the outset, the Bruton court acknowledged that it is possible, under certain circumstances, to impute liability to parties who did not actively participate in alleged wrongdoing.
The law is different, however, for corporations and limited liability companies. As the Bruton court recognized, corporations and limited liability companies — unlike partnerships — generally protect shareholders or members from liability unless they
The Court noted that imputing David’s fraud to Charlene based solely on her status as a member of a limited liability company would be inconsistent with the intent of § 523:
Holding a debtor liable for the fraudulent acts of another party when there has been no allegation of a partnership or agency relationship is “inconsistent with the general principle that § 523(a)(2)(A) ‘contemplates frauds involving moral turpitude or intentional wrong; fraud implied in law which may exist without imputation of bad faith or immorality, is insufficient.’ ”78
While the Eleventh Circuit has not addressed this issue in the context of imputing fraud to an innocent member of a limited liability company, it expressly refused to extend Str'ang beyond the partnership or agency context in In re Villa,
There, Donald Hoffend (an investor) sought to have his claim against the debt- or, which was based on a violation of federal securities law, determined to be nondis-chargeable under § 523(a)(2)(A). Hoffend conceded that the debtor had not made any false misrepresentations. But he alleged that the debtor was liable for the fraud committed by the employees of his brokerage firm (the debtor was the sole shareholder of the brokerage firm) as a “controlling person” under § 20(a) of the Securities and Exchange Act. The Villa court initially noted that, under the Supreme Court’s decision in Neal v. Clark, a debt did not fall within § 523(a)(2)(A) unless the debtor committed positive, actual fraud.
The Villa court then noted that Strang stands for the proposition that Neal’s “positive fraud” requirement can be satisfied by the fraud of a debtor’s partner.
But the Villa court held that the fraud of the brokerage firm’s employees could not be imputed to the debtor in that case because liability under § 20(a) was not equivalent to liability under partnership law or agency principles:
[W]e are bound to a narrow reading of Strang. Strang imputed liability for fraud in bankruptcy based on the common law of partnership and agency. In the instant case, there is no suggestion that [the debtor] and [the brokerage firm] were partners, so partnership law, as applied in Strang, is inapplicable in this case.... [T]o hold that § 20(a) liability may render a debt nondischargeable under § 523(a)(2)(A) would be to extend the holding of Strang beyond its basis in agency law. We conclude that*339 the potential scope of § 20(a) liability does not fall within a narrow reading of Strang.83
In reaching its holding, the Eleventh Circuit expressly noted that it was mindful of its obligation to strictly construe exceptions to discharge in order to give effect to the “fresh start” policy in bankruptcy.
This Court is bound to follow Eleventh Circuit precedent. And while the facts in Villa are not directly on point, the Eleventh Circuit’s reasoning in that case is: Strang should not be extended beyond its basis in agency law. And by imputing Peter’s alleged fraud to the Debtor, that is precisely what the Court would be doing. Accordingly, the Strang decision does not warrant this Court reconsidering its summary judgment ruling.
The only plausible argument for the Court to reconsider its ruling (absent evidence that the Debtor actually committed fraud) is a line of cases suggesting — at least on their face — that a debt is nondis-chargeable if the debtor benefits in any way from money obtained through deception. There is some evidence in this case, after all, that the Debtor may have bene-fitted from Peter’s alleged fraud.
There, the debtor (who was one of three principals of Range Corporation) prepared a fraudulent financial statement that was submitted to Century Bank in connection with a loan application. The debtor gave conflicting testimony about whether he had given the fraudulent statement to the Bank. During his 341 meeting, he testified that he did. At trial, however, he testified that he left the false statement with his brother (another Range Corporation principal), who gave the statement to the Bank. In either case, there was no dispute that the Debtor prepared the false financial statement, the statement was given to the Bank, and the Bank loaned Range Corporation $50,000 based on that statement.
In considering the Bank’s claim under § 523(a)(2)(B), Judge Paskay noted that there was a split of authority regarding what constitutes “obtaining money” under that section.
In Holwerda, the debtor benefitted from his deception even though he did not procure money for himself. That is because he used his false statement to procure money for Range Corporation. And he was one of only three principals of Range Corporation. The Fifth Circuit, in In re
Luce, however, misconstrues Holwerda. Luce dtes Holwerda for the proposition that a “debt is nondischargeable ‘[i]f the debtor benefits in some way’ from the money, property, services or credit obtained through deception.”
Here, to the extent the Debtor benefit-ted from any of the proceeds of the sale of wine, those proceeds were not obtained through his own deception. As discussed above, there is no record evidence that the Debtor made any fraudulent misrepresentations to Belmont. The Court is unaware of any binding precedent — outside the partnership or agency context — holding that a debt is dischargeable simply because the debtor benefits in some way from money obtained through the fraud of another. Accordingly, the mere fact that the Debtor may have benefitted from the sale proceeds does not, by itself, render Belmont’s debt nondischargeable.
That brings the Court to Belmont’s second argument: the Court overlooked evidence of actual fraud by the Debtor. In its motion for reconsideration, Belmont points to a list of facts showing that:
• the Debtor formed a “shell company” (8501) and authorized Peter to sell wine on behalf of the company;
• 8501 had no employees;
• the Debtor supplied the wine that was ultimately sold to Belmont;
• there was a substantial disparity between the value of the wine that the Debtor gave his son and the price that Belmont paid for that wine; and,
• the Debtor was spent some (or all) of the money defrauded from Belmont (including gambling away some of that money).94
Belmont says those facts, along with the facts set forth in Khouri’s affidavit, show that the Debtor used 8501 to perpetrate a fraud. To be sure, the Court is required to construe all evidence in the light most favorable to Belmont.
But Belmont misconstrues a number of facts in the record. For instance, Belmont says the Debtor acknowledged receiving checks from Belmont.
The reality is that is there is no evidence that the wine that the Debtor gave to his son, which was ultimately sold to Belmont, was “inferior.” It may not have been as valuable as Peter represented to Belmont, but there is no evidence that the Debtor knew Peter intended to — or, in fact, did— misrepresent the value of the wine to Belmont. Nor is there any evidence that the Debtor knew about any issues with the wine until he was added as a defendant to the state court lawsuit.
Without any of that evidence, a jury could not — as Belmont suggests — return a verdict in favor of Belmont on its claim that the Debtor participated in a fraudulent scheme. All the evidence shows is that the Debtor set up a company (most likely to use for a real estate investment); the Debtor later allowed his son to use the company to sell wine that the Debtor gave him; and the Debtor’s son may have— unbeknownst to his father — defrauded Belmont in connection with the sale of that wine. That is a far cry from what is required under § 523. Accordingly, the Court did not overlook any facts showing that the Debtor committed actual fraud.
Conclusion
As the Eleventh Circuit observed in Villa, this Court is bound by a narrow reading of Strang. Moreover, the Court is required to narrowly construe § 523(a)(2) in order to give effect to the Bankruptcy Code’s policy of providing debtors with a “fresh start.” Accordingly, the Court will not reconsider its prior summary judgment ruling in favor of the Debtor on Belmont’s claim under § 523. The Court will deny Belmont’s motion for reconsideration by separate order.
. Adv. Doc. No. 27-2 at p. 38, 11. 17-18 & p. 38,11. 3-5.
. Id. atp. 38,11. 1-9; Adv. Doc. No. 27-3 atp. 51, 11. 7-10 & p. 52, 11. 15-23; Adv. Doc. No. 42-1 atp. 18,11. 2-7.
. Adv. Doc. No. 42-1 atp. 12, 11. 8-10, p. 18, 11. 10-12 &p. 19, L&emdash;p. 20, 1. 8.
. Adv. Doc. No. 27-2 at p. 39, 11. 12-16; Adv. Doc. No. 42-1 at p. 12, 11. 8-10 & p. 29, 1. 20&emdash;p. 31,1. 1.
. Adv. Doc. No. 42-1 at p. 30, l. 23-p. 31, l. 1 & p. 33, l. 16-p. 34, l. 9
. Id. at p. 31,1. 24&emdash;p. 32,1. 23.
. Id. at p. 43, 1. 23&emdash;p. 45, 1. 8; Adv. Doc. No. 27-1 at ¶¶ 1-4; Adv. Doc. No. 42-4.
. Adv. Doc. No. 27-1 at ¶¶ 8 & 12.
. Id. at ¶¶ 5-7.
. Id. at ¶¶ 9-11.
. Adv. Doc. No. 27-4.
. Adv. Doc. No. 42-1 at p. 10, 1. 21&emdash;p. 11, 1. 13 &p. 47, 11. 12-14.
. Id. at p.26,1. 11 — p.27,1. 21.
. Adv. Doc. No. 42-8. It appears that from July 1, 2007 through November 23, 2007 — the range of bank statements contained in the record — 8501 disbursed $128,268.93. Id.
. Adv. Doc. No. 42-1 at p. 70, 1. 8 — p. 81, 1. 7; Adv. Doc. No. 42-9 at 6, 15, 24, 31, 33, 58, 59, 63, 69, 89, 95, 105, 106, 109, 135 & 137.
. Id. at p. 9,11. 10-13.
. Id. 42-1 at p. 29,11. 13-19.
. Id. at p. 22, 1. 5 — p. 26, 1. 2 & p. 73, 11. 19-22.
. Adv. Doc. No. 27-1 at ¶¶ 12 & 13.
. Id. at ¶¶ 13. 14 & 21.
. Id. at ¶¶ 13 & 21.
. Id. at ¶¶ 15-19.
. There appears to be some confusion about who Belmont sued. The complaint only names "Peter Nascarella” as the defendant. The Debtor and his son, as mentioned above, share the same first and last name. In either case, it is unnecessary for the Court to resolve that issue.
. Adv. Doc. No. 1-1.
. Id.
. Id.
. Id. at ¶¶ 31, 33. 36 & 41.
. Adv. Doc. No. 1-2.
. Doc. No. 1.
. Adv. Doc. No. 1.
. Adv. Doc. No. 21.
. Id. at ¶¶ 11 & 12.
. Id. at ¶¶ 6-9.
. Id.; Adv. Doc. Nos. 26-1, 39-1 & 40-1.
. Adv. Doc. No. 40-1 at ¶¶ 6 & 7; Adv. Doc. No. 42-1 at p. 13, 11. 11-15 & p. 14, 1. 24- — p. 15,1. 1.
. Adv. Doc. No. 21 at ¶¶ 6-9 & 13.
. Adv. Doc. No. 27-1.
. Adv. Doc. No. 27 at ¶¶ 2-4 & 21-28.
. Adv. Doc. No. 27.
. Adv. Doc. No. 44; Adv. Doc. No. 56 at pp. 42-43.
. Adv. Doc. No. 44; Adv. Doc. No. 56 at pp. 38-42.
. Adv. Doc. No. 56 at 38-39; Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979).
. Adv. Doc. No. 56 at 39-40.
. There is another reason collateral estoppel does not apply. Where the complaint in the prior proceeding contains multiple causes of action, but the final judgment awards only a single monetary amount without designating the cause of action that the award relates to or specifying a basis for the award, it cannot be known whether any particular cause of action was ''essential” to the final judgment. Here, the state court judgment says Belmont was the "prevailing party to this action on all counts of the Amended Complaint.” Dimmitt & Owens Fin., Inc. v. Green (In re Green), 262 B.R. 557, 567 (Bankr.M.D.Fla. 2001).
.Adv. Doc. No. 56 at 41-43.
. Id.
. Adv. Doc. No. 46.
. Id. at 1-5.
. Id. at 5-15.
. The Court has jurisdiction over this contested matter under 28 U.S.C. § 1334. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I) & (J).
. Adv. Doc. No. 46 at 2.
. Adv. Doc. Nos. 25 & 27.
. Adv. Doc. No. 56.
. Id. at 45-46.
. In re Waczewski, 2005 WL 1330691, at *1 (Bankr.M.D.Fla. 2005) (Jennemann, J.).
. Id. (citing In re Investors Florida Aggressive Growth Fund, Ltd., 168 B.R. 760, 768 (Bankr.N.D.Fla. 1994)).
. Strang v. Bradner, 114 U.S. 555, 560-61, 5 S.Ct 1038, 29 L.Ed. 248 (1885).
. Id. at 559-60, 5 S.Ct. 1038.
. Id. at 561, 5 S.Ct. 1038.
. Id.
. Id.
. Adv. Doc. No. 46 at 3-4 (citing BancBoston Mtg. Corp. v. Ledford (In re Ledford), 970 F.2d 1556-62 (6th Cir. 1992); Impulsora Del Territorio Sur, S.A. v. Cecchini (In re Cecchini), 780 F.2d 1440, 1443 (9th Cir. 1986); Moore v. Gill (In re Gill), 181 B.R. 666, 673-74 (Bankr.N.D.Ga. 1995); Terminal Builder Mart of Piedmont, Inc. v. Warren (In re Warren), 7 B.R. 571, 573 (Bankr.N.D.Ala. 1980)).
. Id. (citing W-V Enters., Inc. v. Croft (In re Croft), 150 B.R. 955, 958 (Bankr.E.D.Mo. 1993); Love v. Smith (In re Smith), 98 B.R. 423, 426 (Bankr.C.D.Ill. 1989); Citizens State Bank of Maryville v. Walker (In re Walker), 53 B.R. 174, 179 (Bankr.W.D.Mo. 1985)).
. Id.
. Burger v. Hartley, 896 F.Supp.2d 1157, 1167 (S.D.Fla. 2012); Bar-Am v. Grosman (In re Grosman), 2007 WL 1526701, at *14 (Bankr.M.D.Fla. May 22, 2007) (Jennemann, J.).
. Belik v. Carlson Travel Group, Inc., 864 F.Supp.2d 1302, 1310-11 (S.D.Fla. 2011); Vermeulen v. Worldwide Holidays, Inc., 922 So.2d 271, 274-75 (Fla. 3d DCA 2006); Chase Manhattan Mortg. Corp. v. Scott, Royce, Harris, Bryan Barra, Jorgensen, P.A., 694 So.2d 827, 832 (Fla. 4th DCA 1997).
. Belik, 864 F.Supp.2d at 1310-11; Vermeulen, 922 So.2d at 274-75; Chase Manhattan Mortg. Corp., 694 So.2d at 832.
. Chase Manhattan Mortg. Corp., 694 So.2d at 832.
. See, e.g., RecoverEdge, LP v. Pentecost, 44 F.3d 1284, 1287 (5th Cir. 1995); Columbia State Bank v. Daviscourt (In re Daviscourt), 353 B.R. 674, 686-87 (10th Cir. BAP 2006); Porter Capital Corp. v. Campbell (In re Campbell), 2008 WL 4682785, at *4-5 (Bankr.E.D.Tenn. Oct. 21, 2008); Bank of Washington Cty. v. Wright (In re Wright), 299 B.R. 648, 658 (Bankr.M.D.Ga. 2003).
. First New Mexico Bank v. Bruton (In re Bruton), 2010 WL 2737201, at *5-6 (Bankr.D.N.M. Jul. 12, 2010).
. Id. at 2-3.
. Id. at 4.
. Id.
. Id. at 5.
. Id.
. Id.
. Id.
. Id. (quoting RecoverEdge, LP v. Pentecost, 44 F.3d 1284, 1297 (5th Cir. 1995)).
. Hoffend v. Villa (In re Villa), 261 F.3d 1148 (11th Cir. 2001).
. Id. at 1150-51.
. Id. at 1151.
. Id.
. Id. at 1152-53.
. Id. at 1153-54.
. Adv. Doc. No. 27-2 at p. 41, 11. 20-25 & p. 47,1. 16 — p. 49,1. 11.
.Century First Nat'l Bank v. Holwerda (In re Holwerda), 29 B.R. 486 (Bankr.M.D.Fla. 1983) (Paskay, J.).
. Id. at 489.
. Id.
. In re Luce, 960 F.2d 1277 (5th Cir. 1992).
. Id. at 1287 (quoting Holwerda, 29 B.R. at 489).
. Luce, 960 F.2d at 1282-83.
. Adv. Doc. No. 46 at 7-14.
. Id. 46 at 7.
. Adv. Doc. No. 27-2 at p. 37,11. 7-18.
. Adv. Doc. No. 46 at 7.
Reference
- Full Case Name
- In re Peter NASCARELLA, Jr., Debtor. Belmont Wine Exchange, LLC v. Peter Nascarella, Jr.
- Cited By
- 6 cases
- Status
- Published