KELLY, Circuit Judge.
Debtor-Appellant Nathan Welch appeals from the district court's order denying his motion for judgment on the pleadings and determining that a default judgment is nondischargeable in bankruptcy. Tripodi v. Capital Concepts, LLC, No. 2:09-CV-00071-CW, 2014 WL 2967941, at *9 (D.Utah July 1, 2014). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
This case arises out of the failure of the Talisman project, a high-end real estate development project in Wasatch County, Utah. Beginning in 2006, Mr. Welch worked to procure funding for the Talisman project, partly through a relationship with Capital Concepts, LLC, a third-party entity that solicited investors. Appellee Robert Tripodi was one of these investors, eventually putting $1 million into Talisman. To secure Mr. Tripodi's investment, Mr. Welch issued three promissory notes to Capital Concepts, which in turn, assigned the notes to Mr. Tripodi. Initially issued for one-year terms, the notes had an 18 percent annual interest rate, which increased to 24 percent upon default. The notes were personally guaranteed by Mr. Welch and secured by two separate but identical deeds of trust. These deeds secured multiple promissory notes up to $9.125 million and provided equal lien priority for the notes.
Mr. Welch ultimately defaulted on the notes. In January 2009, Mr. Tripodi filed a complaint against Mr. Welch in federal district court, alleging violations of state and federal securities laws. In March, Mr. Welch answered the complaint. In July, Mr. Welch's attorney filed a motion to withdraw as counsel, and the district court granted the motion and allowed Mr. Welch twenty days to engage a new attorney or appear pro se. I Aplt.App. 60-62. For seven months, Mr. Welch did not respond. In March 2010, Mr. Tripodi filed a motion for entry of default. The court granted the motion for entry of default and issued an order to show cause as to why a default judgment should not be entered. See Order, Tripodi v. Capital Concepts, LLC, No. 2:09-CV-00071-CW (D.Utah Mar. 30, 2010), ECF Nos. 37-38. Receiving no response, the district court entered an order granting the entry of default judgment against Mr. Welch in April 2010, providing various remedies, including foreclosure, and reserving on damages, costs, and attorney's fees. I Aplt.App. 90-92.
For the next year, Mr. Tripodi offered proof of damages, costs, and attorney's fees. In May 2011, the court found Mr. Tripodi was owed $729,161.65 plus post-judgment interest. II Aplt.App. 130. Mr.
For the first time in almost four years, Mr. Welch mounted a defense. Mr. Welch opposed a determination of damages and filed a cross-motion to set aside entry of default. The district court denied his motion as untimely and struck the memorandum in opposition. Id. at 197. Each party then filed post-judgment motions. Mr. Tripodi moved for an order determining that the judgment against Mr. Welch was nondischargeable under 11 U.S.C. § 523(a)(19). At the same time, Mr. Welch filed a motion asking the district court to (1) reconsider its refusal to set aside the entry of default under Fed. R.Civ.P. 55(c), (2) set aside the default judgment under Fed.R.Civ.P. 60(b), and (3) enter a judgment on the pleadings in Mr. Welch's favor under Fed.R.Civ.P. 12(c). In February 2014, the district court heard oral arguments on the motions. IV Aplt.App. 329-72. Ruling from the bench, the district court denied Mr. Welch's motion to set aside entry of default and entry of default judgment, and then, in a written order, the district court denied Welch's motion for judgment on the pleadings and granted Mr. Tripodi's motion finding the judgment was nondischargeable. Tripodi, 2014 WL 2967941, at *9.
Mr. Welch argues the district court erred in denying his motion for judgment on the pleadings and in granting Mr. Tripodi's motion that the default judgment is nondischargeable under 11 U.S.C. § 523(a)(19). We disagree.
Mr. Welch first attacks the default judgment on the merits, claiming that Mr. Tripodi failed to state a cause of action in his initial complaint. In doing so, Mr. Welch chooses not to directly challenge the district court's entry of default judgment against him; rather, he mounts a roundabout attack by questioning sufficiency of the pleadings. Therefore, although this appeal ostensibly challenges the district court's denial of Mr. Welch's motion for judgment on the pleadings—a decision we typically review de novo—we believe that an unavoidable threshold question is the "validity of the default judgment." See, e.g., Dennis Garberg & Assocs., Inc. v. Pack-Tech Int'l Corp., 115 F.3d 767, 771 (10th Cir.1997). We review a district court's entry of default judgment for an abuse of discretion. Niemi v. Lasshofer, 770 F.3d 1331, 1352 (10th Cir.2014). Because the entry of a default judgment is committed to the sound discretion of the district court, we will not overturn the court's decision "without a clear showing that . . . it manifests a clear error of judgment." Olcott, 327 F.3d at 1124.
After a default judgment is handed down, a defendant admits to a complaint's well-pleaded facts and forfeits his or her ability to contest those facts. Id. at 1125 (quoting Jackson, 302 F.3d at 525). Here, by answering the complaint and then failing to defend against it, Mr. Welch
However, even in default, a defendant is not prohibited from challenging the legal sufficiency of the admitted factual allegations. The judgment must be supported by a sufficient basis in the pleadings. Bixler v. Foster, 596 F.3d 751, 762 (10th Cir.2010). A sufficient basis exists here. The complaint alleged several violations of federal and state securities law: sale of unregistered securities, sale of securities by an unlicensed broker or dealer, federal securities fraud, false registration statement, and sale of security related to a false registration statement. See Complaint at 27-39, Tripodi v. Capital Concepts, LLC, No. 2:09-CV-00071-CW (D.Utah Jan. 28, 2009) (stating claims related to securities violations in the fifth, sixth, seventh, ninth, and tenth causes of action). The facts supporting these allegations, deemed true after default, form the basis for a cognizable claim of state and federal securities fraud, specifically that the notes were, in fact, securities. See Reves v. Ernst & Young, 494 U.S. 56, 65-67, 110 S.Ct. 945, 108 L.Ed.2d 47 (1990) (adopting a four-part test to determine whether a note bears a "resemblance" to a non-security, specifically looking to (1) the buyer's and seller's motivations, (2) the plan of distribution, (3) the investing public's expectations, and (4) whether risk-reducing factors are present). Mr. Tripodi alleged that as a buyer, he invested in the Talisman project because it was a "high-yielding investment" opportunity with interest rates ranging from 18 to 24 percent. Tripodi, 2014 WL 2967941, at *1-2; see Reves, 494 U.S. at 66, 110 S.Ct. 945 (first factor). Mr. Tripodi claimed he ultimately invested because he relied on misrepresentations that the project would be successful and that he would recoup the promised return. Tripodi, 2014 WL 2967941, at *4. He asserted that the investment was structured for broad distribution and available to unsophisticated investors, such as himself. Id. at *5; see Reves, 494 U.S. at 66, 110 S.Ct. 945 (second factor). He did not negotiate or revise the terms of the investment. Tripodi, 2014 WL 2967941, at *5. These facts could support a finding that the investing public would also consider these notes to be securities. Id. at *6; see Reves, 494 U.S. at 66, 110 S.Ct. 945 (third factor). Finally, Mr. Tripodi alleged that the little collateral provided offered only "limited security for the investors." Tripodi, 2014 WL 2967941, at *7; see Reves, 494 U.S. at 67, 110 S.Ct. 945 (fourth factor).
Many of Mr. Welch's arguments to the contrary are an attempt to refute these underlying facts. He claims that the notes were not securities, namely that Mr. Tripodi's investment was simply "short-term, bridge financing" and that several risk-reducing factors protected the notes. He bases these claims on facts laid out in affidavits filed nearly four years after the district court entered default judgment against him. But again, his default prohibits him from disputing the facts. Mr. Welch also disputes the legal sufficiency of the complaint, claiming that a finding that these notes are securities is foreclosed by Resolution Trust Corp. v. Stone, 998 F.2d 1534 (10th Cir.1993), and that the notes fail the "investment contract" test, see SEC v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946). Neither argument allows Mr. Welch to prevail. His comparison to Resolution Trust Corp. fails
Because these arguments fail, we need only look at the pleadings and decide whether the notes can be classified as securities under the facts alleged in the complaint. For all the reasons previously discussed, we find Mr. Tripodi's complaint met that standard. The district court did not abuse its discretion in entering a default judgment, and thus, fairness requires that we enforce it. See Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444 (10th Cir.1983). We affirm the denial of judgment on the pleadings.
Mr. Welch next appeals the district court's order finding the default judgment against him is nondischargeable under 11 U.S.C. § 523(a)(19). Whether a debt is dischargeable in bankruptcy under § 523 is a question of law subject to de novo review. In re Troff, 488 F.3d 1237, 1239 (10th Cir.2007).
The Bankruptcy Code generally allows the debtor a fresh start. Certain debts, however, are exempt from discharge by statute. See 11 U.S.C. § 523. The district court granted Tripodi's motion that the default judgment against Welch cannot be discharged because it falls within the ambit of § 523(a)(19). We agree.
Added to the Bankruptcy Code in 2002, § 523(a)(19) renders debts nondischargeable when they arise in connection with a violation of state or federal securities law.
On appeal, Mr. Welch argues that this court generally refuses to give preclusive effect to default judgments in bankruptcy. That is only partially true. This court has refused to give preclusive effect to certain default judgments under § 523(a)(2), a different discharge exception under the Bankruptcy Code.
This holding is supported by well-reasoned authority from other federal courts. See, e.g., In re Pujdak, 462 B.R. 560, 578-79 (Bankr.D.S.C.2011) (finding a default judgment issued in connection with violations of the South Carolina Securities Act is nondischargeable in bankruptcy under § 523(a)(19)); see also Meyer v. Rigdon, 36 F.3d 1375, 1382 (7th Cir.1994) (finding any final judgment, including a default judgment, must be given preclusive effect under § 523(a)(11), which, like § 523(a)(19), requires proof of a final judgment). The district court properly found that Welch's default judgment is nondischargeable under § 523(a)(19).
AFFIRMED.
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