In re Graziano
| Decision Date | 06 December 1983 |
| Docket Number | Adv. No. 883-0245-18.,Bankruptcy No. 883-30033-18 |
| Citation | 35 BR 589 |
| Parties | In re Robert W. GRAZIANO, Debtor. GREAT AMERICAN INSURANCE CO., Plaintiff, v. Robert W. GRAZIANO, Defendant. |
| Court | U.S. Bankruptcy Court — Eastern District of New York |
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Martini & Wynne, Lake Success, N.Y., for Great American.
Long, Tuminello, Besso, Seligman & Quinlan, Bay Shore, N.Y., for debtor/defendant.
DECISION
This action is brought by creditor, Great American Insurance Co. ("Great American") seeking a determination that a debt owed to it by Robert W. Graziano ("debtor") is nondischargeable pursuant to 11 U.S.C. § 523(a)(4) which excepts from discharge debts accruing from inter alia larceny and embezzlement.
From 1978 until 1980, debtor was employed as a salesman for H. Schnell & Company ("Schnell"), a fruit wholesaler located at the Hunt's Point Market, Bronx, New York. Debtor was responsible for the over-the-counter sale of produce to a regular clientele and for the collection of cash proceeds and extension of credit with respect to such transactions. During a twenty-four hour period, debtor would handle anywhere from ten to fifty thousand dollars in cash.
Debtor admits that at a point in time, which he places at the end of May or beginning of June, 1980, he was involved in a conversation with the president of a trade association of Korean retailers wherein it was requested that a better price be given to its members than that ordinarily charged. In the absence of such a concession, the association would seek an alternative source for the produce.
In response to this demand, debtor entered into a course of discounting prices to the association members without notice to his employer. In fact, the sales "tickets" he remitted to his employer indicated that the sales had been consummated at the authorized price level. Debtor posits as the underlying motive for the implementation of this practice his intention to increase the sales volume of Schnell.
At a point during the summer of 1980, Seymour Schnell, president of Schnell, directed that an investigation be conducted into the sales activities of debtor. To this end, the accounting firm of Touche Ross & Co. was retained to perform an independent audit and Richard Avidon, assistant to the president of Schnell, was assigned to oversee and assist in the accounting.
The audit disclosed that debtor's sales accounts showed a deficit of approximately $775,000. On the basis of the audit, Mr. Avidon filed a complaint with the Bronx County District Attorney. Debtor was indicted by the Bronx County Grand Jury on September 29, 1980 and charged with the crime of grand larceny in the second degree. At debtor's arraignment on April 29, 1981, he pleaded guilty as charged. On June 4, 1981, Supreme Court Judge Shackman sentenced debtor to pay a fine of $5,000.
On September 19, 1980, Schnell filed a proof of loss with Great American Insurance Co. ("Great American") which had issued a fidelity bond to Schnell covering inter alia employees' fraudulent or dishonest acts. Great American reimbursed Schnell in the amount of $50,000 which constituted the maximum allowable under the terms of the bond. By virtue of its payment of Schnell's claim, Great American asserts that it is subrogated to the rights of Schnell to the extent of amounts paid out on the claim, and is entitled to reimbursement in the amount of $9,224.42 for expenses incurred in investigating and auditing the claim.
On January 7, 1983, debtor filed a petition under Chapter 7 of the Bankruptcy Reform Act of 1978 ("Code"). On April 6, 1983, Great American commenced this adversary proceeding by filing its complaint with the clerk of this court. It should be noted however that Great American has not filed a proof of claim. The debtor interposed his answer on May 17, 1983. A trial was conducted on September 15, 1983 and continued on September 22, 1983. Decision was reserved.
As a preliminary matter, a creditor's failure to file a proof of claim does not act as a bar to an action to determine dischargeability although it will preclude a recovery against debtor's bankruptcy estate in the event no claim is filed on creditor's behalf. See B. WEINTRAUB & A. RESNICK, BANKRUPTCY LAW MANUAL, ¶ 5.04 (1980). The legislative history to the Code addresses this issue in its discussion of the basis for allowing the trustee or debtor to file a proof of claim on behalf of the creditor in liquidation cases.
the trustee or debtor may file a proof of claim if the creditor does not timely file. The purpose of this subsection 501(c) is mainly to protect the debtor if the creditor\'s claim is nondischargeable. If the creditor does not file, there would be no distribution on the claim, and the debtor would have a greater debt to repay after the case is closed than if the claim were paid in part or in full in the case. . . .
H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 351 (1977), reprinted in Appendix 2 Collier on Bankruptcy (15th ed. 1983); see S.Rep. No. 95-989, 95th Cong., 2d Sess. 61 (1978), U.S.Code Cong. & Admin.News, pp. 5787, 5847 reprinted in Appendix 3 Collier on Bankruptcy (15th ed. 1983).
Thus, the legislature clearly intended that an adversary proceeding could be brought by a creditor to determine nondischargeability notwithstanding such creditor's failure to file a proof of claim.
Such legislative intent may be corroborated by reference to the definitional sections of the Code and applicable Bankruptcy Rules.
Rule 409(a)(1) which governs this proceeding states that "a bankrupt or any creditor may file a complaint with the court to obtain a determination of the dischargeability of any debt." Section 101(9) of the Code defines "creditor" in pertinent part as "an entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor." Claim is defined in § 101(4) as:
Therefore, so long as an entity has a claim against the debtor, as distinguished from a claim against the debtor's estate, that entity may commence a proceeding to determine the dischargeability of a debt (see 11 U.S.C. § 502).
SECTION 523(a)(4)
Great American proceeds under 11 U.S.C. § 523(a)(4) on the theory that its claim against debtor, alleged to be in the amount of $59,224.42, is nondischargeable in bankruptcy in that it arose as the consequence of debtor's embezzlement or larceny of funds from his employer, Schnell. Great American must carry the burden of proving that its debt comes within Section 523(a)(4) of the Code. In re Cross, 666 F.2d 873 (5th Cir.1982); In re Ayers, 25 B.R. 762 (Bkrtcy. M.D.Tenn.1982); In re Thurston, 18 B.R. 545 (Bkrtcy.M.D.Ga.1982). The § 523(a) exceptions are to be strictly construed in favor of the debtor. Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915); In re Thurston, supra. Claims that debts are nondischargeable under subsection 523(a)(4) should be examined with special care. In re Fasulo, 25 B.R. 583 (D.Conn. 1982).
In addition, "where dishonesty or fraud, is at issue, the courts have typically required a higher standard of proof." In re Magnusson, 14 B.R. 662, 667, 8 B.C.D. 708, 711 (Bkrtcy.N.D.N.Y.1981) quoting In re Huff, 1 B.R. 354, 357, 1 C.B.C.2d 171, 173 (Bkrtcy.D.Utah 1979). Thus, where plaintiff seeks to show that debtor was guilty of embezzlement or larceny it must prove each of the elements of its cause of action by clear and convincing evidence. In re Storms, 28 B.R. 761 (Bkrtcy.E.D.N.C.1983); In re DeRosa, 20 B.R. 307 (Bkrtcy.S.D.N.Y. 1982); In re Crook, 13 B.R. 794, 4 C.B.C.2d 1451 (Bkrtcy.D.Me.1981).
Section 523(a)(4) provides:
A discharge under section 727, 1141 or 1328(b) of this title does not discharge an individual debtor from any debt — . . . (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.
Section 523(a)(4) constitutes a significant revision of its predecessor section 17(a)(4) under the "Bankruptcy Statute of 1898" ("Act") in two respects. First, it includes larceny as an independent basis to preclude the discharge of a debt. See H.R. Rep. No. 95-595, 95th Cong., 1st Sess. at 364, reprinted in Appendix 2 Collier on Bankruptcy (15th ed. 1983). Second, the phrase "while acting in a fiduciary capacity" does not qualify the word embezzlement, or the new category larceny, and thus the coverage of § 523(a)(4) is broadened in its application to nonfiduciaries. 3 Collier on Bankruptcy, ¶ 523.141c at 523-98 (15th ed. 1983); In re Carlton, 26 B.R. 202 (Bkrtcy.M.D.Tenn.1982); In re Crook, supra.
The definitions of the terms larceny and embezzlement in § 523(a)(4) are to be determined under federal common law. Id.; In re Storms, supra. Embezzlement is defined as "the fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come." In re Carlton, supra, citing Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 295, 40 L.Ed. 422 (1895); 3 Collier on Bankruptcy ¶ 523.143 at 523-107 (15th ed. 1983). Larceny is defined as the fraudulent and wrongful taking and carrying away the property of another with intent to convert such property to the taker's use without the consent of the owner. Id. Larceny does not differ from embezzlement except with respect to the manner in which the funds or property come into the possession of...
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