In re Berk

• Decision Date: 02 April 1973
• Docket Number: No. 71 B 587.,71 B 587.
• Citation: 356 F. Supp. 453
• Parties: In the Matter of Robert M. BERK, Bankrupt.
• Court: U.S. District Court — Eastern District of New York

356 F. Supp. 453

In the Matter of Robert M. BERK, Bankrupt.

No. 71 B 587.

United States District Court, E. D. New York.

April 2, 1973.

Jaspan & Kaplan by Arthur W. Jaspan, Mineola, N. Y., for bankrupt.

Arthur L. Webber by Ernst L. Bendix, New York City, for creditor.

MEMORANDUM AND ORDER

NEAHER, District Judge.

This is a petition by the bankrupt to review a referee's determination that a personal bank loan owed by the bankrupt is not dischargeable. Discharge was denied because of petitioner's failure to mention on the loan application the existence of a $75,000 second mortgage on his $80,000 house which he had given as security for repayment of an obligation incurred by a family corporation.

The sole issue in dispute is whether a discharge is barred because petitioner intentionally made a "false" written financial statement within the meaning of § 17(a)(2) of the Bankruptcy Act, 11 U.S.C. § 35(a)(2) ("the Act").¹ The word "false" means more than erroneous or untrue and imports an intention to deceive. Collier, Bankruptcy, § 1440.

Petitioner does not deny he made an untrue statement in the credit extension application in controversy herein when he omitted disclosure of the $75,000 second mortgage. Nor does he claim he forgot to list that mortgage, but only that he knowingly failed to do so out of a misapprehension. In other words, his only dispute with the referee's ruling is that of the two principal elements of intent to deceive—knowledge and deceitful purpose—there has been no demonstration in the record of the latter. Thus, he argues, "as to the matter of deceitful intention, the Referee made no specific findings of fact, expressing only a general conclusion that petitioner issued a materially false statement with intent to deceive" (Br. 6).

The referee in his memorandum of June 27, 1972 specifically found

"1. The Bankrupt issued a materially false statement of his assets and liabilities with the intention of obtaining a loan and extension of a loan from the Bank of Commerce.

"2. The said statement was issued with the intention to deceive the Bank of Commerce."

In support of these findings the referee's memorandum particularly noted that the bankrupt was the chief officer and sole stockholder of J. Berk, Inc., on whose behalf the house mortgage was given. Further, the memorandum stated that petitioner had extensive business experience and had operated a real estate company. These conclusions are amply supported in the record.

It is clear that such factors weighed heavily against petitioner's bare statement that he had omitted the second mortgage because as far as he was concerned he had no "involvement with it" as "the business was paying the debt." While not labeled as findings of fact, these factors and inferences drawn therefrom were clearly findings of fact. Cf. In re Beasley-Gilbert's, Inc., 285 F. Supp. 359, 363 (S.D.Ohio 1968). Thus, the referee made findings of fact and law on the issue of intent to deceive, and these findings constitute sufficiently specific adjudication of the point.

The referee's findings and conclusions must be confirmed unless they are clearly erroneous. A finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United Staes v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

Moreover, § 14(c) of the Act, 11 U.S.C. § 32(c), provides that

". . . If, upon the hearing of an objection to a discharge, the objector shall show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed any of the acts which, under this subdivision, would prevent his discharge in bankruptcy, then the burden of proving that he has not committed any of such acts shall be upon the bankrupt."

Consequently, where a ground for denying a discharge is shown which falls within the literal wording of the Act, a...