JERRY C. OLDSHUE, JR., U.S. BANKRUPTCY JUDGE.
This matter came before the Court for a trial on April 8, 2019, on the Complaint filed by the United States of America on behalf of its agency, the United States Department of Agriculture, Farm Service Agency (hereinafter referred to as "the USA" or "FSA") against Chapter 7 Debtor and Defendant, Patricia Marlaina Reid (hereinafter referred to as "Debtor" or "Reid"). Appearing on behalf of the USA was attorney Keith Jones, and on behalf of the Debtor was attorney Judson Crump. At the conclusion of the trial, the Court took the matter under submission and now issues its ruling thereon.
This Court has jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 1334 and 157, and the order of reference of the District Court dated August 25, 2015. This
The facts of this case are undisputed and the Court adopts the Stipulation of Undisputed Facts filed by the parties as set forth below. (Doc. 28).
Prior to March of 2016, Debtor testified that in order to start the farm that she had always dreamed of, she took out a loan to purchase twenty acres in Monroe County, Alabama. At the time of the land purchase, she was in a relationship with her boyfriend, Joshua Sawyer. Joshua Sawyer lived on the Frye Road Property with her and is also the father of her children.
On March 16, 2016, Debtor executed a promissory note, designated Loan Number 1, promising to pay the United States of America, acting through the Farm Service Agency, United States Department of Agriculture, the principal sum of $ 44,000 plus interest at a rate of 2.625%. On March 16, 2016, she also executed a promissory note, designated Loan Number 2, promising to pay FSA the principal sum of $ 6,000 plus interest at a rate of 2.625%. (Together, these promissory notes on Loan Number 1 and Loan Number 2 are hereinafter referred to as the "Notes"). On March 16, 2016, Reid also executed a security agreement granting FSA a security interest in "All farm equipment ... and inventory, now owned or hereafter acquired by the Debtor, together with all replacements, substitutions, additions, and accessions thereto, including but not limited to the following which are located in the State of Alabama."
In addition, the security agreement specifically included the following items:
Reid purchased the collateral with the loan proceeds and kept the collateral in her possession at the Frye Road property. Under the security agreement, Debtor was supposed to keep the cattle or return them to the FSA. She admitted that she was not permitted to sell or otherwise dispose of the cattle or the equipment.
In June of 2016, Reid learned of a dispute regarding the twenty acres she purchased to run the farm. The dispute involved a restriction against having cattle on the property. She testified that when she purchased the land in early 2016, she was told by the sellers that there were no restrictions on the property and that she could have cattle on it and such was reflected in the paperwork of the land purchase. In August of 2016, she went to court regarding the dispute; however, before going to court on the dispute, she contacted the FSA to ask for help in defending her, and the FSA told her that FSA lawyers represent the interests of FSA only and not FSA borrowers. The case was resolved with a finding that the restriction against cattle was in place, and she was given thirty (30) days to vacate the property.
By this time, Reid noticed that the collateral, except for the New Holland tractor
Despite her efforts to stop Rigsby from taking the cattle, Reid did not contact the police or report any of the missing collateral as stolen. Reid did not seek authorization from FSA to allow anyone to conceal, remove, sell, or otherwise dispose of the missing collateral. Reid did not affirmatively inform the FSA that the cattle had been stolen, and she did not attempt to recover or locate the missing collateral, or contemporaneously notify FSA of the missing collateral.
Sawyer was arrested in October 2016, for drug crimes and eluding the police. Reid vacated the Frye Road property in October or November 2016. The only collateral remaining at the property was the New Holland tractor, which she listed for sale on Facebook. Reid testified that she sold the New Holland tractor to an unknown purchaser for between $ 6,000.00 and $ 8,000.00. When asked whether she could obtain the purchaser's information from her Facebook history, Reid testified that she deleted the Facebook account years ago and no longer has access to that information. She then testified that she used the proceeds from the sale of the New Holland tractor to bail Sawyer out of jail. Reid admitted that she did not seek authorization from FSA to conceal, remove, sell, or otherwise dispose of the New Holland tractor, nor did she ever attempt to recover or locate the New Holland tractor, or notify FSA that she sold the New Holland tractor. Debtor testified that she never sold any of the other equipment listed in the security agreement, and only received money from the sale of the tractor, which was used as Sawyer's bail. When asked why she never filled out a police report regarding the stolen collateral, Debtor's explanation was that Sawyer was the father to her child.
Reid testified that payments on the loan were due annually, but she never made a payment toward either loan as the first payment had not become due when she vacated the property. Reid testified that she never intended to injure the FSA, and never intended for the collateral to be stolen in breach of the agreement with FSA. When asked about other collateral in her possession not included in the FSA security agreement, such as a Chevrolet Silverado financed through Tyndall Federal Credit Union and a Ford F-150 financed through another bank, she testified that she understood that those creditors would repossess the collateral and sue her for the debt if she did not make regular payments thereon.
Testifying on behalf of the FSA, was Bryan Rhea. Mr. Rhea testified he has been a loan manager for twelve years for the FSA and he supervises three employees in the areas of loan making and loan servicing in ten counties. He stated he personally assisted Debtor in obtaining the two loans at issue when she came to the FSA in March of 2016. When he was questioned about his conversations with Debtor regarding the land dispute, he reiterated that FSA had an interest in the collateral and cows only, not the real property. He also stated that when Debtor reached out
Based on Debtor's acts and omission discussed above, the USA requests that the Court find the debt owed to the FSA in the amount of $ 52,048.56 plus interest be found nondischargeable pursuant to 11 U.S.C. § 523(a)(2) for fraud, (a)(4) for fiduciary defalcation and embezzlement, and (a)(6) for willful and malicious injury.
Debtor requests a finding that she lacked the requisite intent to harm the FSA at every stage of this loan and the Court should find the debt owed to the FSA dischargeable in its entirety. For the following reasons, the Court finds that the debt owed to the FSA by Debtor is nondischargeable in the amount of $ 7,000.00, which is the approximate amount for which Debtor improperly sold the New Holland tractor.
"Exceptions to the discharge of a particular debt are strictly construed in favor of the defendant." In re Kanewske, 2017 WL 4381282, at *6 (Bankr. M.D. Fla. Sept. 29, 2017). Here, the defendant is the Debtor. "[T]he denial of a defendant's discharge is an `extraordinary remedy' and an `extreme penalty' to the defendant. Id. Therefore, any challenge to a defendant's discharge must be construed strictly against the objecting party and liberally in favor of the defendant. Id. The standard of proof to be applied in all § 523(a) dischargeability proceedings is "the ordinary preponderance-of-the-evidence standard." Matter of Staggs, 573 B.R. 898, 908 (Bankr. N.D. Ala. 2017)(citing Grogan v. Garner, 498 U.S. 279, 286-88, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) ).
Count I
Under Count II of the Complaint, the USA requests that the entire debt owed by Debtor be found nondischargeable due to Debtor's embezzlement of the collateral pledged as security on the loans. Section 523(a)(4) excepts from discharge any debt that was obtained by debtor by fraud or defalcation while acting a fiduciary capacity,
The USA fails to specifically address the allegation of embezzlement in its Complaint, and raises the issue for the first time in its pretrial brief. Despite failing to specifically plead embezzlement in the Complaint, the Court finds that the USA is not excluded from litigating the same at trial. Where a complaint does not specifically use the term "embezzlement," if the facts as pled in the complaint arise to the act of embezzlement, then embezzlement can nonetheless be adequately pled. See In re Taylor, 551 B.R. 506, 521 (Bankr. M.D. Ala. 2016). Therefore, because the USA has pled facts that appear to rise to the level of embezzlement, the Court will consider the evidence presented in relation to the allegation of embezzlement.
"Bankruptcy courts define embezzlement as the `fraudulent appropriation of property of another by a person to whom such property has been entrusted or to whose hands it has lawfully come.'" In re Taylor, 551 B.R. 506, 521 (Bankr. M.D. Ala. 2016)(citing Matter of Weber, 892 F.2d 534, 538 (7th Cir.1989) (quoting Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 40 S.Ct. 422 (1895) ); see also Belfry v. Cardozo (In re Belfry), 862 F.2d 661, 662 (8th Cir.1988). To establish embezzlement, a creditor must show that: (1) the creditor entrusted property to the debtor; (2) the debtor appropriated the property for a use other than that for which it was entrusted; and (3) the circumstances indicate fraud." Matter of Chaney, 596 B.R. 385, 405 (Bankr. N.D. Ala. 2018). "Debts which arise from simple conversion are not excepted from discharge." In re Taylor, at 521. Instead, "the creditor must show that the misappropriation was done with fraudulent intent." Ibid. "Fraudulent intent may be inferred from surrounding
Considering the evidence presented at trial and the record as a whole, the Court finds that the first two elements of embezzlement are satisfied: (1) the FSA entrusted property to the Debtor and (2) the Debtor appropriated the property for a use other than that for which it was entrusted. The third element (that the circumstances indicate fraud), however, is not satisfied. The burden of proof on dischargeability issues the "the ordinary preponderance-of-the-evidence standard." Matter of Staggs, 573 B.R. 898, 908 (Bankr. N.D. Ala. 2017)(citing Grogan v. Garner, 498 U.S. 279, 286-88, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) ). Any challenge to a defendant's discharge must be construed strictly against the objecting party and liberally in favor of the debtor. In re Kanewske, 2017 WL 4381282, at *6 (Bankr. M.D. Fla. Sept. 29, 2017). Here the Court construes the evidence liberally in favor of the Debtor and finds that the USA failed to meet its burden of proof that the circumstances indicate fraud rising to the level of embezzlement. Therefore, the relief requested in Count II is due to be and hereby is DENIED.
Finally, the USA requests relief in Count III pursuant to § 523(a)(6) for willful and malicious injury when Debtor sold the New Holland tractor, used the proceeds for her own benefit, and failed to inform the FSA of the sale of the tractor. Having considered the evidence presented, the Court finds in favor of the USA and concludes that the value of the New Holland tractor is nondischargeable.
To succeed under Section 523(a)(6), a creditor must prove that the injury at issue is both willful and malicious. In re Carter, 593 B.R. 354, 363-64 (Bankr. M.D. Fla. 2018). Willfulness requires "a showing of an intentional or deliberate act, which is not done merely in reckless disregard of the rights of another." In re Walker, 48 F.3d 1161, 1163 (11th Cir. 1995). "Malicious means that the debtor's act be "wrongful and without just cause or excessive even in the absence of personal hatred, spite or ill-will." Id. The debtor must commit an act "the purpose of which is to cause injury or which is substantially certain to cause injury." In re Carter, 593 B.R. at 364; In re Walker, 48 F.3d 1161, 1165 (11th Cir. 1995). To establish malice for purposes of § 523(a)(6), "a showing of specific intent to harm another is not necessary." Matter of Vickrey, 2018 WL 5255218, at *6 (Bankr. N.D. Ala. Oct. 1, 2018)(citing Beem v. Ferguson, 713 Fed. Appx. 974, 984 (11th Cir. 2018) ).
Section 523(a)(6) does not reach a mere "failure to meet a duty of care that results in injury to someone." Matter of Vickrey, 2018 WL 5255218, at *6 (Bankr. N.D. Ala. Oct. 1, 2018)(citing Loucks v. Smith, 531 B.R. 1, 12 (Bankr. M.D. Ala. 2015)(Sawyer, J.) ). A negligent or even reckless act is not sufficient to except a debt from discharge under Section 523(a)(6). Carter at *6. When financial harms are alleged, it must be shown that the debtor "actually knew, at the time of the intentional act, that injury was substantially certain to result." Petroleum Realty I, LLC v. McCravy (In re McCravy), 2015 WL 3916811, at *9 (Bankr. S.D. Fla. 2015); Kane v. Stewart Tilghman Fox & Bianchi Pa (In re Kane), 755 F.3d 1285, 1293 (11th Cir. 2014).
"The Eleventh Circuit has acknowledged that the Circuits are split as to whether the term `substantial certainty' is a subjective
In Nix, Judge Jessup succinctly summarized Monson,
Matter of Nix, No. 17-81289-CRJ-7, 2018 WL 3339620, at *6. The bankruptcy court in Monson found the debtor's conduct substantiated a finding under § 523(a)(6) for willful and malicious injury within the meaning of the statute. Id. The Eleventh Circuit affirmed on appeal stating that the act of absconding with the creditor's collateral and using it to open a new business was an "intentional act the purpose of which was to cause injury or which was substantially certain to cause injury." Id.
The facts in Nix are similar:
Matter of Nix, No. 17-81289-CRJ-7, 2018 WL 3339620, at *6. The bankruptcy court found that Dr. Nix knew that his actions were substantially certain to cause injury to PNC's ability to obtain repayment of its loan for purposes of § 523(a)(6). The bankruptcy court further found that that Dr. Nix committed a malicious injury because the injury was wrongful and without just cause, and excessive for purposes of § 523(a)(6).
Regarding the element of malice, the "Eleventh Circuit has explained that a showing of specific intent to harm another is not necessary." Id. (citing In re Kane, 755 F.3d at 1294). "Instead, for purposes of § 523(a)(6) "[m]alice can be implied... and constructive or implied malice can be found if the nature of the act itself implies a sufficient degree of malice." Nix, 2018 WL 3339620, at *7 (citing Monson, 661 Fed.Appx. at 683)(citation omitted) ).
Applying Monson and Nix to the evidence presented at trial in this case, the Court finds that Debtor's sale of the New Holland tractor and misappropriation of the sale proceeds to pay her boyfriend's bail is sufficient to establish a willful and malicious injury to the USA. Debtor's testimony regarding the two vehicle loans and her understanding of what would happen if she didn't make payments on those loans demonstrates that she knew her actions would harm or were substantially certain to injure the USA. Debtor's failure to disclose the sale to the USA or turnover the proceeds to the USA is further evidence of such willful and malicious conduct.
The USA requests that the entire amount of $ 52,048.56 plus interest be rendered nondischargeable; however, the Court finds that the USA only met its burden of proof as to the New Holland tractor. The Debtor testified at trial that the tractor was sold for $ 6,000-$ 8,000, but she could not remember the exact amount. This was the only evidence presented regarding the value of the tractor at the time of the sale. Therefore, in an effort to "split the baby," the Court finds that the debt owed by Debtor to the FSA for the tractor is due to be and hereby is nondischargeable in the amount of $ 7,000.00.
Based on the foregoing, the Court finds against the USA and in favor of the Debtor on Counts I and II of the Complaint, and in favor of the USA and against the Debtor on Count III of the Complaint. The debt owed by Debtor to the USA is hereby rendered nondischargeable in the amount of $ 7,000.00.
This Memorandum Opinion and Order resolves all matters raised in the Complaint. This adversary proceeding shall be DISMISSED with prejudice as soon as practicable.
