In re Gonzalez
| Decision Date | 20 August 1968 |
| Docket Number | No. 66 B 594.,66 B 594. |
| Citation | 287 F. Supp. 281 |
| Parties | In the Matter of Victor J. GONZALEZ, Bankrupt. |
| Court | U.S. District Court — Southern District of New York |
Louis P. Rosenberg, Brooklyn, for the bankrupt.
No appearance in opposition on the motion.
This is an application to review the order of a Referee in bankruptcy sustaining Specifications of a creditor in objection to a discharge of the bankrupt on the ground that the bankrupt issued materially false statements in writing which were relied upon to extend credit (Bankruptcy Act, Sec. 14(c) (3)); 11 U. S.C. § 32(c) (3).
The issue before the Court turns on whether written false statements to procure credit were shown by evidence. No writing claimed to be false was tendered or received in evidence before the Referee. It was contended by the objecting creditor that there were such writings in existence (installment sales contracts) but they were never produced or marked in evidence before the Referee nor was their absence legally excused.
There is no appearance in opposition to the bankrupt's present application to review and set aside the denial of the discharge by the Referee.
The substitute submitted to the Referee for the requisite evidence of written false statements to procure credit was the testimony of a witness that the bankrupt had orally admitted to him the assignment of fictitious accounts to the extent of $4,000. (The alleged admission was denied by the bankrupt.) During the hearings the Referee inquired specifically whether there was a false financial statement and counsel for the creditor having answered in the affirmative was instructed by the Referee to "introduce it if it is in writing"; no writing was ever introduced.
The bankrupt submits authority albeit of an ancient vintage to the effect that the oral admissions of a party are competent evidence only when parol evidence of the fact sought to be shown by such oral admissions would be competent. Under this rule the alleged oral admission testified to in the record would not be significant on the issue of a false writing. Regardless of the validity of such a rule of evidence and its modern vitality, See, Richardson on Evidence (9th ed. 1964) § 556; McCormick, Law of Evidence, (1954) § 208; Wigmore on Evidence (3rd ed. 1940) § 1256, the statute clearly contemplates the existence of a false writing and until proof has established the existence of a false writing, or a proper foundation for use of secondary evidence thereof, a prima facie case has not been established and the burden of proving this ground of objection to a discharge is not met. "Only when the objecting creditor has discharged this burden, and not before, does the burden shift to the bankrupt". In re Schwartz, 135 F.2d 362 (2d Cir. 1943) Cf. In re Tabibian, 289 F.2d 793, 795 (2d Cir. 1961).
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In re Baiata
... ... (Emphasis added) ... It is beyond dispute that to satisfy § 523(a)(2)(B), there must exist a written statement which represents the debtor's financial condition. In re Youssef, CCH ¶ 66,032 (Dist.Ct.D. of C. 1976); In re Gonzalez, 287 F.Supp. 281 (S.D.N.Y.1968) ... In the case at bar, the plaintiff contends that the home improvement license application dated December 11, 1978, and the contract between the parties constitute such writings. The Court finds upon examination of the documents in question that ... ...
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In re Duiser
... ... 3 Collier on Bankruptcy ¶ 523.07 (15th ed. 1979). Likewise, under the Code, each element of § 523(a)(2) must be proved. Thus, a creditor must prove that the debt was obtained by the use of a statement (i) in writing, In re Gonzalez, 287 F.Supp. 281 (S.D.N.Y.1968); (ii) that is materially false, Doyle v. First National Bank, 231 F. 649 (4th Cir.), Matter of Kahn, 16 F.2d 501, aff'd. 22 F.2d 131 (4th Cir. 1927); (iii) respecting the debtor's or an insider's financial condition, See H.R.Rep.No.595, 95th Cong., 1st Sess. 312 ... ...
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In re Aldrich
... ... Gonzalez, 287 F.Supp. 281 (S.D.N.Y.1968) ... Whether or not a statement is material depends mainly upon whether the complainant relied upon it partially or entirely. Reliance must have been a contributing cause for extension of such credit. In Re Ellis, 1 BCD 798 (S.D.N.Y.1975). Partial ... ...
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In re Whitehouse, Bankruptcy No. 3-82-00578
... ... See 3 Collier on Bankruptcy, ¶ 523.091 (15th Ed., 1979), citing In Re Gonzalez, 287 F.Supp. 281 (S.D.N.Y.1968) ... 9. Whether or not a statement is material depends mainly upon whether the complainant relied upon it partially or entirely. Reliance must have been a contributing cause for extension of such credit. In Re Ellis, 1 B.C.D. 798 (S.D.N.Y.1975) ... ...