CARLOTA M. BOHM, Bankruptcy Judge.
The matter before the Court is the Complaint to Determine Dischargeability of Debt Pursuant to 11 U.S.C. § 523 ("Complaint") filed by Plaintiff, Melbourne Wann ("Mr. Wann"), against the Debtor, Helen V. Sosso ("Debtor").
The above-captioned adversary proceeding was commenced on July 13, 2012. In the course of discovery, two motions to compel further deposition testimony were filed by Mr. Wann against non-parties, Joseph W. Nocito ("Mr. Nocito") and Mark Sosso, the Debtor's son. In those motions, Mr. Wann asserted that these individuals improperly invoked the Fifth Amendment privilege against self-incrimination at their respective depositions. This Court denied the motions to compel for the reasons set forth in its Memorandum Opinion dated May 7, 2013.
Thereafter, trial was scheduled. The parties filed pretrial statements and a joint pretrial statement, containing a number of stipulated facts. Trial was held on January 13, 2014, and January 29, 2014. Testimony of the following four witnesses was heard at trial: Mr. Wann; the Debtor; Harry Hunt, a licensed appraiser in the State of Florida; and Marty Benson, a licensed real estate agent in the State of
Following trial, the parties were given the opportunity to file statements of issues, briefs, and reply briefs. As these documents have been filed, the matter is ripe for decision.
Based upon the stipulated facts set forth in the parties' Joint Pretrial Statement, the testimony and evidence presented at trial, and this Court's assessment of the witnesses' credibility, the Court finds as set forth herein.
By way of background, the nature of the relationship between the Debtor and Mr. Wann is relevant to this proceeding. Mr. Wann is an experienced builder and developer who has been in the real estate development industry for approximately fifty years. The Debtor has been in the real estate business for approximately thirty-eight years and maintains a real estate broker's license in both Pennsylvania and Florida. The parties had been close friends for approximately thirty years. In the course of their friendship, they also did business together as the Debtor was the broker with whom Mr. Wann listed most of his properties in Pennsylvania. It is evident from the testimony that, based upon this long-standing friendship, a high level of trust existed between them at the time of the relevant transactions.
The dispute in this case results from the circumstances surrounding a project (the "Project") that began in 2005 to renovate a residential home located at 605 Kingfisher Lane, Longboat Key, Sarasota County, Florida (the "Property"). The idea and decision to take on the Project was that of Mark Sosso, the Debtor's son. See Transcript of 1/29/14, Doc. No. 107 ("Transcript II"), at 25. The Project was undertaken by Sosso Homes, LLC, a Florida limited liability company ("Sosso Homes"). From at least 2005 through 2007, the Debtor and her two sons, Mark Sosso and Scott Sosso, (collectively, the "Sossos") were identified as managers/members of Sosso Homes in certain annual reports filed with the Secretary of State; however, as discussed infra, the credible evidence establishes that Mark Sosso managed and controlled Sosso Homes. See Exhibits 21-23 and Transcript II, at 130.
In order to purchase the Property and fund the Project, Sosso Homes obtained a construction loan from Liberty Savings Bank. The Property was purchased by Sosso Homes on July 19, 2005, as evidenced by a deed recorded on July 22, 2005. In connection with the loan, a note
Prior to closing on the loan from Liberty Savings Bank, the Debtor approached Mr. Wann to gauge his interest in the Project as he had previously shown an interest to invest in property in the area. Although the Debtor admits to this involvement, she contends that she did not intend to be responsible for "putting this deal together" as it involved her longtime friend and her son. See Transcript II, at 26. The Debtor advised Mr. Wann that an additional $100,000.00 was needed for the closing of the loan and completion of the Project. When Mr. Wann agreed to loan the necessary funds, his understanding of the agreement was that the Sossos were to own the Property and execute a note and mortgage in connection with his loan, which mortgage the Debtor would cause to be recorded following closing on the loan with Liberty Savings Bank. See Transcript of 1/13/14, Doc. No. 91 ("Transcript I"), at 37, 42-43, 160-61. Ultimately, however, this is not what occurred.
According to Mr. Wann, his understanding of the agreement, and consequently the manner in which a note and mortgage (hereinafter, the "Wann Note", Exhibit 3, and "Wann Mortgage", Exhibit 4) were prepared by his counsel, resulted from discussions with Debtor and, in particular, a document provided to him by Debtor. See Transcript I, at 159-61 and Exhibit 2. Despite the Debtor's testimony that she did not intend to negotiate the deal between her son and her friend, the Court finds it likely that the Debtor and Mr. Wann at least discussed the transaction as they were close friends. The Court finds the extent, formality, and nature of these discussions, as well as the Debtor's role in the negotiations, to be uncertain. Based upon the evidence presented, it is not clear to the Court that the Debtor understood that Mr. Wann was relying almost exclusively upon their discussions to draft the terms of a note and mortgage. Although the Debtor's involvement to assist her son is obvious, especially as she contacted her friend, Mr. Wann, in the first place, the credible evidence establishes that this Project was the undertaking of Mark Sosso and Debtor's knowledge of the Project was derived predominantly from information he provided to her. Furthermore, although Mr. Wann was in contact with Debtor prior to the loan, he was also clearly in touch with Mark Sosso regarding the Project at this time. See Exhibit D.
Mr. Wann places particular emphasis on an unsigned commitment letter which he claims was provided to him by Debtor in June of 2005. Mr. Wann asserts that he relied upon the letter for the drafting of the Wann Note and Wann Mortgage. The letter dated June 17, 2005 ("June 17th Commitment Letter") was from Liberty Savings Bank to the Debtor, Scott Sosso, and Mark Sosso, identifying them as the borrowers. See Exhibit 2. Mr. Wann believed the commitment letter to be consistent with his understanding that the Sossos would personally own the Property despite the fact that the June 17th Commitment Letter does not explicitly address ownership by the Sossos. See Transcript I, at 31-34, 36. Very little time was provided to memorialize an agreement, and Mr. Wann directed his attorney to prepare the Wann Note and Wann Mortgage consistent with his understanding of the
The Court notes that Mr. Wann did receive additional documentation regarding the Project prior to making the loan. By way of a facsimile on or around June 21, 2005, Mark Sosso sent Mr. Wann a document identified as a "Cost Breakdown Sheet" for the Project. See Exhibit D. Significantly, the document identifies the Property by address and identifies the owner as Sosso Homes, LLC. When asked about his reaction to this information, Mr. Wann testified that he "wouldn't have even picked up on that." See Transcript I, at 157-58. While there was clearly a misunderstanding as to ownership of the Property, it does not appear that the ownership of the Property was purposefully concealed from Mr. Wann by the Debtor.
Ultimately, pursuant to the Wann Note, Mr. Wann loaned the sum of $100,000.00 to the Debtor, Sosso Homes, Mark Sosso and Scott Sosso. Under the terms of the Wann Note, Sosso Homes, the Debtor, Mark Sosso, and Scott Sosso were to be jointly and severally liable, and the Sossos were identified as the mortgagors in the Wann Mortgage. Based upon the Wann Note, Mr. Wann would be entitled to the repayment of his $100,000.00 initial investment, plus interest, and twenty-five percent of the proceeds from the sale of the Property. Notwithstanding the fact that Mr. Wann was making the loan to the Sossos under the terms of the Wann Note, only Mark Sosso personally met with Mr. Wann to execute the documents.
On or around June 28, 2005, Mark Sosso met with Mr. Wann in his office in Pittsburgh. At that time, Mark Sosso executed the Wann Note and Wann Mortgage in his individual capacity and, with respect to the Wann Note, as the representative of Sosso Homes, LLC, as well. Mr. Wann provided the $100,000.00 check to Mark Sosso along with the Wann Note and Wann Mortgage, without said documents being fully executed. Mr. Wann asserts that Mark Sosso was to provide the documents to Debtor. Although Mr. Wann testified that the Debtor never advised him that she did not receive a copy of these documents, there is no evidence that he ever attempted to verify receipt of the documents by Debtor or Scott Sosso. See Transcript I, at 53, 150-54. Neither the Debtor nor Scott Sosso signed either document.
Following Mark Sosso's execution of the Wann Note and Wann Mortgage, a second commitment letter dated July 19, 2005 ("July 19th Commitment Letter") was issued by Liberty Savings Bank to the Debtor and her two sons. See Exhibit 30. This letter is dated approximately one month later than the letter upon which Mr. Wann relied to draft his note and mortgage. Unlike the June 17th Commitment Letter, the July 19th Commitment Letter identifies the borrower as Sosso Homes and the guarantors as the Sossos, individually.
Notwithstanding the foregoing, it was Debtor's understanding that Mr. Wann did loan funds for the Project and that he had an interest in the Property. See Transcript II, at 66. From June 2005 through 2007, Mr. Wann asserts that he likely spoke with the Debtor and Mark Sosso about the Project monthly. However, it is clear from the record that Mark Sosso was in charge of the Project. The evidence shows that Mr. Wann consistently relied upon Mark Sosso to provide him with updates, and Mr. Wann acknowledged that Mark Sosso controlled Sosso Homes. See Transcript I, at 50-52 and Exhibits 5 & 64. The evidence further indicates that it was Mark Sosso who was keeping track of the amount owed to Mr. Wann. See Transcript I, at 111-112 and Exhibit 14. In addition, following the commencement of Debtor's bankruptcy case, Mr. Wann contacted Mark Sosso in order to obtain the documents he would need to "write off" the debt. Of the numerous documents introduced into evidence, Mark Sosso consistently signed on behalf of Sosso Homes. Thus, while Scott Sosso and the Debtor may have been identified as members of Sosso Homes in certain annual reports filed with the Secretary of State, there is no credible evidence of their involvement in managing Sosso Homes or this particular Project.
Ultimately, the Property was sold by Sosso Homes on July 27, 2007. The circumstances surrounding the sale, however, are highly suspect. On June 15, 2007, Sosso Homes and Mr. Nocito entered into a contract for sale of the Property for the purchase price of $3,000,000.00, which contract was executed by Mark Sosso, on behalf of Sosso Homes. Based upon the credible evidence, Mark Sosso negotiated the sale and prepared the contract related thereto. See Transcript II, at 96. In fact, even the listing agent for the Property, Marty Benson, was unaware of the contract until shortly before closing.
Marty Benson was an independent contractor working for Prudential Palms Realty ("Prudential Palms").
Mark Sosso informed Debtor that he discovered a problem; he failed to include Mr. Wann's loan in the calculation of costs to determine the amount that would be received from the sale to Mr. Nocito. See Transcript II, at 103. The Debtor suggested that they speak with Mr. Nocito in an attempt to obtain the funds for Mr. Wann. See id. That attempt was unsuccessful, and Mr. Wann did not receive payment from the proceeds of the sale. Instead, he was informed that Mark Sosso forgot to include his loan in the calculation of costs.
Thereafter, some attempt was made to pay at least a portion of the obligation to Mr. Wann. On October 16, 2007, Sosso Homes issued a $10,000 check payable to Wann Corporation signed by Mark Sosso and drawn on Sosso Homes' account. See Exhibit J. Mr. Wann credited the amount against the obligation owed under the Wann Note. Subsequently, on May 12, 2009, Debtor sent a handwritten note to Mr. Wann along with a $1,200.00 check drawn on an account held by Debtor, Scott Sosso, and Mark Sosso, payable to Mr. Wann, which amount he credited against the obligation owed under the Wann Note. See Exhibits 8 and 9. The handwritten note indicated that Debtor would pay the obligation herself in varying amounts. According to Debtor, she sent the payment and agreed to pay the obligation so that Mr. Wann would not take any action to collect from Mark Sosso as he had no ability to pay. See Transcript II, at 110.
Although there had been promises to pay the debt, when Debtor filed her bankruptcy case in 2012, Mr. Wann decided that it was time to "write off" the debt. In order to do so, he needed the appropriate documentation regarding the transaction, which he sought from Mark Sosso. See Transcript I, at 83-84. In response, Mark Sosso provided Mr. Wann with certain documents, including the settlement statement, which Mr. Wann had never seen before. Mr. Wann discovered that the information relayed to him at the time of the sale of the Property in 2007 was entirely
Based on the foregoing, this Court considers whether the debt is dischargeable under § 523(a)(2)(A) or (a)(6) of the Bankruptcy Code.
As a preliminary matter, the Court will address the Debtor's contention that Mr. Wann's underlying causes of action, for breach of contract and/or any related tort action alleging fraud, are barred by the applicable statutes of limitation. The Complaint is a request to determine dischargeability under 11 U.S.C. § 523. Therein, Mr. Wann does not plead the underlying causes of action; instead, the Complaint assumes the existence of the underlying debt as follows:
See Complaint, at ¶ 8. Although the parties stipulate that Mr. Wann has a valid unsecured claim against the Debtor, the parties disagree as to the basis for said claim. Mr. Wann asserts that the claim is derived from the loan made pursuant to the Wann Note in 2005 while the Debtor contends that the claim arises as a result of her subsequent promise to pay Mr. Wann following the sale of the Property in order to dissuade Mr. Wann from taking action to collect against her son. Because the underlying causes of action were not pled in the Complaint, neither those causes of action nor the corresponding statutes of limitation were properly raised before this Court. The Complaint seeks a determination of nondischargeability of an undisputed debt. Therefore, dischargeability of the asserted debt will be resolved herein.
The statutory exceptions to discharge set forth in § 523 must be viewed in light of the underlying policy of the Bankruptcy Code, i.e. the goal of providing a fresh start, and "are generally construed `narrowly against the creditor and in favor of the debtor.'" Boston Univ. v. Mehta (In re Mehta), 310 F.3d 308, 311 (3d Cir.2002) (quoting In re Pelkowski, 990 F.2d 737, 744 (3d Cir.1993)). The party opposing discharge has the burden of proving nondischargeability by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). In light of these standards, the Court will address the applicability of § 523(a)(2)(A)
Beginning with § 523(a)(2)(A), a debt "for money ... to the extent obtained, by ... false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition" will not be discharged. See 11 U.S.C. § 523(a)(2)(A). Thus, as a threshold matter, the debt at issue must have resulted from a debtor's fraudulent conduct. See Jones v. Dressler (In re Dressler), 431 B.R. 127, 131 (Bankr. W.D.Pa.2010). To establish that a debt was obtained by a false representation under § 523(a)(2)(A), the plaintiff must prove that the debtor made a representation, knowing it to be false at that time, with the intent and purpose of deceiving plaintiff, who justifiably relied upon said representation and sustained a loss as the proximate result. Id. at 130. Similarly, the same must be proven for the purpose of establishing false pretenses, except that the misrepresentation is implied or rather is a product of debtor's conduct which fostered a false impression. Id. at 130. To the extent some courts treat actual fraud as a broader concept under the statute, the debtor's intent to defraud must nonetheless be established. Id. at 130-31. Thus, regardless of whether a plaintiff alleges false pretenses, false representation or actual fraud, a plaintiff must prove by a preponderance of the evidence that the debtor possessed the intent to defraud. Id. at 130-31. See also Gaussa v. Crawford (In re Crawford), 476 B.R. 890, 895 (Bankr.W.D.Pa.2012). Establishing intent of the debtor is a difficult burden.
In the Complaint, Mr. Wann alleged three misrepresentations by Debtor: (1) Debtor's intention to execute the Wann Note and Wann Mortgage; (2) Debtor's intention to record the Wann Mortgage or cause said mortgage to be recorded; and (3) payment to Mr. Wann upon sale of the Property. In addition, although not contained within the Complaint, Mr. Wann asserts that Debtor intentionally misrepresented who would own the Property. While maintaining that this is an attempt by Mr. Wann to amend his Complaint after trial, the Debtor contends that Mr. Wann nonetheless fails to meet his burden on this point. This Court agrees that Mr. Wann failed to meet his burden with respect to all four alleged misrepresentations.
Beginning with the allegation regarding misrepresentation of ownership, Mr. Wann asserts that he relied upon representations by the Debtor and the June 17th Commitment Letter for the drafting of the Wann Note and Wann Mortgage. To the extent Mr. Wann alleges that the Debtor intentionally misrepresented the ownership of
Furthermore, with respect to Mr. Wann's reliance upon the June 17th Commitment Letter, that letter was the document in existence at the time the Wann Note and Wann Mortgage were drafted. The Sossos executed that document only days before Mark Sosso met with Mr. Wann to sign the Wann Note and Wan Mortgage, and there is no evidence that it was fraudulently provided to Mr. Wann by the Debtor. See Exhibit 29. The fact that the commitment letter was amended less than one month after Mark Sosso executed the Wann Note and Wann Mortgage does not establish an attempt to misrepresent ownership by providing Mr. Wann with the June 17th Commitment Letter. Furthermore, the July 19th Commitment Letter could not have been provided to Mr. Wann to assist him in preparing the Wann Note and Wann Mortgage as it did not exist until after that time. Although the facts certainly raise the question of why Mark Sosso, the only one of the Sossos who read and executed the Wann Note and Wann Mortgage, did not advise Mr. Wann of the July 19th Commitment Letter when it was issued, the circumstances do not support the conclusion that, Debtor, assuming she sent the June 17th Commitment Letter to Mr. Wann, misrepresented the true nature of the loan from Liberty Savings Bank and/or the ownership of the Property.
With respect to Mr. Wann's contention that the Debtor misrepresented her intention to execute a note and mortgage and subsequently cause said mortgage to be recorded, this Court does not doubt that, in the course of discussions with Mr. Wann, Debtor represented her willingness to sign a note and/or mortgage related to the loan as she became a guarantor of the loan from Liberty Savings Bank. However, there is no evidence that the Debtor ever received the Wann Note and Wann Mortgage, and Mr. Wann did not attempt to verify receipt of these documents by the Debtor. Accordingly, assuming the Debtor did promise to do as Mr. Wann alleges, she never had the opportunity to fulfill her promise. The Court finds no misrepresentation is apparent on these facts.
With respect to any representation made by the Debtor to Mr. Wann regarding payment of the obligation upon the sale of the Property, the evidence indicates that the Debtor believed this to be true. In fact, she approached Mr. Wann to inform
Based on the foregoing, Mr. Wann failed to prove that the Debtor possessed the requisite intent to defraud for the purpose of establishing nondischargeability under § 523(a)(2)(A).
Pursuant to 11 U.S.C. § 523(a)(6), a debt "for willful and malicious injury by the debtor to another entity or to the property of another entity" is excepted from discharge. This Court has previously set forth the standard under this provision as follows:
See Enterprise Bank v. Hannan (In re Hannan), 477 B.R. 603, 612 (Bankr. W.D.Pa.2012). The Complaint does not clearly identify what particular conduct by the Debtor was willful and malicious under the terms of the statute. As developed at trial and set forth in his brief, it is Mr. Wann's position that the Debtor, who was aware of his interest in the Property, knowingly and intentionally allowed the Property to be sold without any payments being made to Mr. Wann with the substantial certainty that injury would result.
For the apparent purpose of establishing the Debtor's knowledge and control over the sale to Mr. Nocito, Mr. Wann describes the Debtor as "the Managing Member of Sosso Homes ..., the owner or purported owner of Prudential Palms Realty..., and an owner of Americo Title, LLC ..." See Plaintiff's Brief, Doc. No. 113, at 8. The Court notes that there was contradictory testimony with respect to Debtor's role and/or interest in these entities. While the Court does not doubt that the testimony of Mr. Wann and Mr. Benson
Despite Mr. Wann's contentions, based upon the evidence presented, it was not Debtor, but rather Mark Sosso, whose conduct caused his harm. Mark Sosso personally met with Mr. Wann in 2005 to execute the Wann Note and Wann Mortgage and obtain funds for the Project. Mark Sosso is the only one who specifically knew the terms of the loan and affirmatively represented his agreement to those terms. Subsequently, Mark Sosso reached an agreement to sell the Property on behalf of Sosso Homes to Mr. Nocito in 2007, and there is no credible evidence upon which to conclude that Debtor was involved in negotiating the agreement. Following the negotiation of the contract for sale, Mark Sosso represented to Mr. Wann, Mr. Benson, and the Debtor that there would be no profit on the sale. The Court notes the highly suspicious circumstances surrounding the sale of the Property to Mr. Nocito, and an extensive amount of evidence was presented regarding the transaction. However, for purposes of this proceeding, Mr. Wann must prove "willful and malicious injury by the debtor" under § 523(a)(6). As it was Mark Sosso who controlled Sosso Homes, the Court finds that much of the evidence was not relevant. While the Court acknowledges that, based upon the evidence presented, Mr. Wann was likely defrauded by certain individuals involved in the transaction, Mr. Wann did not meet his burden with respect to the Debtor.
The Court notes that Mr. Wann's conduct was uncharacteristically informal for such a significant loan. This informality is likely the result of a number of factors, including the close friendship between Mr. Wann and the Debtor and the short timeframe available to prepare the Wann Note