Coluccio v. Sevastakis (In re Sevastakis)
Coluccio v. Sevastakis (In re Sevastakis)
Opinion of the Court
Presently before the Court in this adversary proceeding are competing motions for summary judgment. The first is a motion for summary judgment (ECF No. 24) filed by Plaintiffs Frank and Josephine Coluccio ("Plaintiffs") seeking to deny discharge of a debt owed to them by Debtor John Sevastakis ("Debtor") under
I. Jurisdiction
The Court has jurisdiction over this contested matter under
II. Background and Procedural History
The factual history of this case is well known to the parties and will not be repeated in detail here. The pertinent facts, which are undisputed and determinative of this case, are as follows: Plaintiffs entered into a written contract with Sevas Builders, Inc. for certain renovations and an addition to their single-family home. On September 28, 2006, Plaintiffs filed a Complaint in the Superior Court of New Jersey, Ocean County, seeking damages from Sevas Builders, Inc. and from Debtor (individually and as owner of Sevas Builders, Inc.) based upon breach of contract, negligence, breach of warranty, breach of the implied covenant of good faith and fair dealing, conversion, and violations of the New Jersey Consumer Fraud Act, N.J. STAT. ANN. § 56:8 ("NJCFA"). After a fourteen-day nonjury trial in Monmouth County Superior Court
On June 5, 2017, Debtor filed a voluntary petition for chapter 7 relief. Plaintiffs filed an adversary proceeding on April 3, 2017 seeking to declare the debt owed to them nondischargeable under
III. Legal Discussion
A. Summary Judgment Standard
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). As the Supreme Court has indicated, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.' " Celotex Corp. v. Catrett,
The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. Huang v. BP Amoco Corp.,
"Once the moving party establishes the absence of a genuine dispute of material fact, however, the burden shifts to the non-moving party to 'do more than simply show that there is some metaphysical doubt as to the material facts.' " In re Moran-Hernandez ,
B. Standard for Claim Under § 523(a)(2)(A)
Section 523 of the Bankruptcy Code provides that:
a discharge under section 727... of this title does not discharge an individual debtor from any debt-
...
(2) for money, property, services, ... or 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[.]
Courts have noted that "[a]lthough the terms 'false pretenses,' 'false representation,' and 'actual fraud' refer to different concepts, they are closely related and each requires a plaintiff to demonstrate proof of false or deceptive conduct, fraudulent intent, and justifiable reliance." In re Altieri , No. 11-12819,
(1) the debtor obtained money, property or services through a material misrepresentation;
(2) the debtor, at the time, knew the representation was false or made with gross recklessness as to its truth;
(3) the debtor intended to deceive the creditor;
(4) the creditor justifiably relied on the debtor's false representations; and
(5) the creditor sustained a loss and damages as a proximate result of the debtor's materially false representations.5
See In Re Gallagher ,
In cases involving a debtor-contractor, such as the case presently before this Court, courts in this Circuit have generally recognized "two ways to establish misrepresentation or fraud under section 523(a)(2)(A) : (1) to show that the contractor executed the contract never intending to comply with its terms, or (2) to demonstrate that the contractor intentionally misrepresented a material fact or qualification when soliciting the work." In re Purington , No. 11-11617,
C. Legal Discussion
In the instant motion for summary judgment, Plaintiffs state that they seek nondischargeability under § 523(a)(2)(A) due to Debtor's alleged "fraudulent acts as well as his false representations and false pretenses." Pls.' Br. Supp. Summ. J. 17, ECF No. 24-2. Therefore, Plaintiffs implicate all three grounds for relief under § 523(a)(2)(A) and focus on the second method for establishing a § 523(a)(2)(A) claim against a debtor-contractor: material misrepresentation of fact or qualifications. In support of their motion, Plaintiffs rely solely on the state trial court's findings of fraud and misrepresentation. In relevant part, Plaintiffs' motion cites: (1) Debtor's forgery of Plaintiff's signature on the permit application, and related misrepresentations; (2) Debtor's misrepresentations regarding his ability to draw architectural plans; (3) Debtor's misrepresentations to the township regarding the proposed non-residential use for the addition; (4) Debtor's failure to advise Plaintiffs that they would need a licensed architect or design professional to prepare drawings; (5) Debtor's failure to provide the project with a crawl space as indicated in the initial plans and agreement; and (6) Debtor's failure to build the addition to conform with requirements under the applicable building code. Plaintiffs argue that the opinion of the state trial court in the prior litigation makes findings with respect to each of these frauds and/or misrepresentations sufficient to satisfy the elements of § 523(a)(2)(A). Accordingly, Plaintiffs assert that the award of treble damages and attorney's fees and costs for violations of the New Jersey Consumer Fraud Act is nondischargeable.
In his cross motion, Debtor takes the position that the state court did not make any findings with respect to his intent and, therefore, Plaintiffs cannot satisfy their burden under § 523(a)(2)(A) as a matter of law. Debtor also asserts that issues exist as to his individual liability and seeks summary judgment in his favor as to Plaintiffs' claims under § 523(a)(6) and § 727(a)(5). The Court does not find Debtor's arguments persuasive and, for the reasons set forth below, determines that Plaintiffs have established all elements of *204§ 523(a)(2)(A) in the debtor-contractor context by a preponderance of the evidence and, as such, are entitled to summary judgment on that claim.
1. Material Misrepresentations
On this record, the Court determines that Debtor made significant misrepresentations and created a false pretense when he entered into the contract with Plaintiffs. As an initial matter, the state court determined that Debtor had "fail[ed] to advise the plaintiffs of the requirement that they retain a licensed architect or design professional to prepare the drawings." Pls.' App'x (hereinafter "State Court Opinion") 26, ECF No. 24-3 at 52; see also In re Chung-Hwan Kim ,
Further, by entering into the contract with Plaintiffs, Debtor represented-both expressly and impliedly-that he would "obtain [the] necessary building permits," comply with all applicable ordinances, and complete the project in a lawful manner. State Court Opinion at 14. Despite these representations, Debtor engaged in the work without regard to appropriate permits, inspections, or compliance with other rules and laws. As the state court observed, Debtor "was comfortable with 'bending the rules' if needed to make the job more profitable." Id. at 8. It is evident from the record that Debtor not only bent the rules-but broke the rules-during the permit process. Debtor fraudulently signed the owner-Plaintiff's name on the permit application that he submitted to the township. With respect to this issue, the trial court found that Debtor had
signed [Plaintiff's] name on the permit application to the township under the 'owner's certification section,' rather than signing his own name under the section to be completed by an agent 'if the applicant is not the owner in fee.' [Debtor] admitted that [Plaintiff] had not given him express authorization to sign his name and could give no good reason for signing [Plaintiff's] name, other than to say that he did it 'because I felt they trusted me.'
State Court Opinion at 24-25.
The state court further noted that the permit indicated that Plaintiff had prepared the plans, and that the building was being used exclusively as a single-family residence. In fact, the plans were drawn by Debtor and the addition should have been labeled for "mixed use." The state court also found that Debtor made an intentional misrepresentation to the township when he referred to the addition as a "great room" on the permit application, as opposed to a "school room" as contemplated by the parties and memorialized in the contract documents. State Court Opinion at 26 n.20.
At trial, Debtor gave no plausible explanation for the actions he took and the misrepresentations he made, nor does he dispute or explain these misrepresentations in his Opposition to Plaintiffs' motion. In light of Debtor's undisputed statements and actions, this Court determines that Plaintiffs have met their burden of establishing the first element of a claim under § 523(a)(2)(A) by a preponderance of the evidence. This Court finds that Debtor made false material misrepresentations regarding his qualifications to prepare plans for the project, the need for an architect or design professional to prepare plans, and *205his method for obtaining permits and performing work as contemplated in the parties' contract.
2. Knowledge that the Representation was False
Another element which must be shown to establish a cause of action for nondischargeability under § 523(a)(2)(A) is that, at the time that the debtor made the representations or omissions, he knew that those representations were false, or that they were made with gross recklessness as to their truth. In re Purington ,
3. Intent
In order to succeed in a claim under § 523(a)(2)(A), a plaintiff must show by a preponderance of the evidence that a debtor possessed the requisite intent to deceive. Because a debtor will rarely admit to intentional deception, the intent element of a claim under § 523(a)(2)(A) is generally inferred from totality of the circumstances. In re Bocchino ,
A dischargeability determination rooted in § 523(a)(2)(A) cannot rely solely on a state court judgment under the NJCFA because "the NJCFA applies a strict liability standard to unlawful conduct by contractors while section 523(a)(2)(A) requires actual intent to defraud." In re Altieri ,
Specifically, as discussed above, Debtor misrepresented his qualifications and ability to design a roof that would comport with Plaintiffs' expectations under the contract. The Court is mindful that in the debtor-contractor context breach of contract or shoddy workmanship is insufficient to establish a claim under § 523(a)(2)(A). See, e.g. , In re Chung-Hwan Kim ,
As stated, Debtor withheld the need for an architect or design professional from Plaintiffs. Such a material omission cannot be considered merely negligent when one considers the lengths to which Debtor went to avoid drawing both Plaintiffs' and the township's attention toward the project and the architect requirement. Specifically, Debtor made material misrepresentations on the permit application as to who would be performing the work, who had prepared the plans, who would serve as general contractor, and the type of work being performed. The state court explicitly found that Debtor made these misrepresentations because
[i]f [Debtor] disclosed that he was the principal contractor and was the person making the application, he could not use his own drawings to support the application. Similarly, had [Debtor] disclosed that the construction had a potential 'mixed use,' the Town would not have accepted [Debtor's] plans and the plaintiffs, in all probability, would have been required to engage an architect - a circumstance which would have undoubtedly avoided many of the problems that arose during this project.
State Court Opinion at 25-26. Accordingly, the record indicates that Debtor intentionally lied on the permit application to avoid drawing attention to the project, and to trick the township and Plaintiffs into using his own drawings as opposed to those of a licensed architect or design professional. Furthermore, Debtor admittedly forged Plaintiff's signature on the application document to accomplish this goal. Debtor does not offer any explanation or present any argument suggesting that his intentions were honest in this respect. Based on these circumstances, the only conclusion that can be drawn is that Debtor made these misrepresentations intentionally to deceive the township and Plaintiffs.
Given the totality of the circumstances in the instant case, this Court concludes *207that Plaintiffs have established the intent element of a § 523(a)(2)(A) claim by a preponderance of the evidence.
4. Reliance
To prevail on their § 523(a)(2)(A) cause of action, Plaintiffs must also establish that they relied Debtor's misrepresentations and that their reliance was justified. See Field v. Mans ,
This Court finds that Plaintiffs in this case were justified in relying on Debtor, an experienced contractor, to complete their project in a manner consistent with their contract and all building code requirements. At the very least, Plaintiffs were justified in their reliance on Debtor to obtain the necessary permits and inspections, and were under no obligation to conduct an investigation to ensure that Debtor had not forged their signature or misreported information on the permit application.
5. Damages and proximate cause
The final element of a claim under § 523(a)(2)(A) requires a plaintiff to suffer a loss proximately caused by defendant's conduct. See, e.g. , In re Chung-Hwan Kim ,
D. Debtor's Arguments and Opposition
As set forth above, in his Motion and Opposition, Debtor asserts that *208Plaintiffs have failed to make any argument regarding "piercing the corporate veil" or based on an "alter ego" theory and, thus, cannot show that Debtor, individually, is liable for the entire amount of the judgment. Debtor further states that the state court's opinion did not distinguish between Debtor and his company when it made the relevant findings. Debtor's argument fails for several reasons. First, contrary to Debtor's assertion, the state court's opinion is replete with specific findings with respect to Debtor's actions as an individual. See, e.g. , State Court Opinion at 25, 26, 29. Moreover, the concepts of an alter ego and of piercing the corporate veil are employed as a method of determining liability. In this case, the state court already settled the issue of liability and determined that Debtor, in his individual capacity, and Sevas Builders, Inc. are jointly and severally liable for the amount of the judgment. "A liability is joint and several when the creditor may sue one or more of the parties to such liability separately, or all of them together, at his [or her] option." S.E.C. v. J.W. Barclay & Co. ,
This Court notes that the cases relied on by Debtor, In re M.M. Winkler & Assocs. ,
IV. Conclusion
For the foregoing reasons, the Court finds that Debtor knowingly misrepresented his qualifications and obligations under the contract with the intent to deceive Plaintiffs. Debtor's cross-motion for summary judgment is denied, Plaintiffs' motion is granted, and the debt owed to Plaintiffs in the amount of $761,927.00 is nondischargeable under § 523(a)(2)(A). Counsel for Plaintiffs shall submit a proposed form of Order consistent with this Opinion.
To the extent that any of the findings of fact might constitute conclusions of law, they are adopted as such. Conversely, to the extent that any conclusions of law constitute findings of fact, they are adopted as such.
On December 1, 2006, venue was transferred from Ocean County to Monmouth County.
In their Complaint, Plaintiffs also sought relief under § 727(a)(5) and § 523(a)(6) ; however, their summary judgment motion is limited to their claim under § 523(a)(2)(A).
The Bankruptcy Code ("Code") is set forth in
This Court notes that there does not exist in the Third Circuit a singular, universally-used test for proving a claim under § 523(a)(2)(A). However, a close inspection of existing case law reveals that all tests require a movant to fulfill the same basic requirements, and the primary differences between the tests are the number of elements which define the test for establishing a claim. Compare In re Bocchino ,
The Court notes that several courts within our circuit-including the Third Circuit itself-have described the fourth element of § 523(a)(2)(A) as requiring "reasonable" reliance. See, e.g. , In re Bocchino ,
Reference
- Full Case Name
- IN RE: John SEVASTAKIS, Debtor. Frank Coluccio & Josephine Coluccio v. John Sevastakis
- Cited By
- 16 cases
- Status
- Published