Matter of Frisby, No. S74-41B.

Decision Date27 April 1976
Docket NumberNo. S74-41B.
Citation444 F. Supp. 227
CourtU.S. District Court — Southern District of Mississippi
PartiesIn the Matter of Sally Stephenson FRISBY, in Bankruptcy. W. F. HOLDER, d/b/a Commercial Finance Co., Appellant-Plaintiff, v. Sally Stephenson FRISBY, Appellee-Defendant.

Jason H. Floyd, Floyd & Floyd, Gulfport, Miss., for appellant-plaintiff.

Cecil G. Johnson, Biloxi, Miss., for appellee-defendant.


DAN M. RUSSELL, Jr., Chief Judge.

This appeal arises from the bankruptcy of Sally Stephenson Frisby.

The hearing was held before the Referee in Bankruptcy on September 25, 1975, to determine the dischargeability of the Appellee's debt to Appellant pursuant to § 17(a)(2) of the Bankruptcy Act (11 U.S.C. § 35) which provides:

"A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as (2) are liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive, or for willful and malicious conversion of the property of another; . . ."

Appellant alleges that the discharge of the bankrupt as far as it affects this particular indebtedness should be denied since the Appellee had obtained a loan in the amount of $960.00 on October 10, 1973 from the Appellant by falsely representing that she was the owner of certain household furnishings and appliances pledged as collateral for this loan. Two other allegations of fraud were charged against Appellee by Appellant, but at the hearing, the objection to the dischargeability of the debt was restricted to the issue of wrongful conversion of mortgaged property under § 17(a)(2) of the Bankruptcy Act, supra.

The Referee in Bankruptcy, after a full hearing, found that the uncontradicted testimony of the Appellee-Bankrupt was to the effect that she discarded worn out furniture, which she had pledged as collateral to the Appellant, and her testimony in this regard was consistent throughout the hearing in spite of efforts by the Appellant to discredit her on cross-examination. The Referee in Bankruptcy further found that her testimony and attitude convinced him that she acted in good faith in her dealings with the creditor and was in no way guilty of any fraud, deception or wrongful conversion of property.

The Referee's findings of fact are binding upon this Court unless they are clearly erroneous. Fed.R.Civ.P. 52(a). This was incorporated into the Bankruptcy Rules as Rule 810, which provides:

"Upon an appeal the district court may affirm, modify, or reverse a referee's judgment or order, or remand with instructions for further proceedings. The court shall accept the referee's findings of fact unless they are clearly erroneous, and shall give due regard to the opportunity of the referee to judge the credibility of the witnesses."

Even should this Court feel constrained to find adversely to the Appellee here, it is bound by the Referee's findings unless clearly erroneous under the rules set out immediately above.

An examination of the record reveals that this case involved nothing more than household furniture, with a highly suspect marketable value. The Referee pointed out in his opinion that "household goods are not accepted by the creditor as collateral because of liquidation value, but because they are precious to the debtor...

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4 cases
  • Matter of Haynes
    • United States
    • U.S. Bankruptcy Court — Eastern District of Michigan
    • April 26, 1982
    ... ... 813, 818 (Bkrtcy.E.D.N.Y. 1981). See also, Matter of Kearny Chemicals, Inc., 468 F.Supp. 1107 (D.Del.1979); Matter of Frisby, 444 F.Supp. 227 (S.D.Miss. 1976); Matter of Warren, 7 B.R. 546 19 BR 852 (Bkrtcy.M.D.Ga.1980); In re Gabrielson, 5 B.C.D. 1248, 1 B.R. 563 ... ...
  • In re La Brant
    • United States
    • U.S. Bankruptcy Court — Northern District of Illinois
    • September 20, 1982
    ... ...         EDWARD B. TOLES, Bankruptcy Judge ...         This matter coming on to be heard upon the complaint of Hanne Vessel, doing business as HTH Northshore ... Miss. Loan Corp. v. Boyd, 1 Ill.App.3d 927, 274 N.E.2d 825, 827 (1st Dist. 1971); In re Frisby, 444 F.Supp. 227, 228 (S.D.Miss.1976); In re Love, 577 F.2d 344, 348 (5th Cir. 1978) ... ...
  • In re Kyriazes
    • United States
    • U.S. Bankruptcy Court — Northern District of Illinois
    • March 10, 1983
    ... ...         EDWARD B. TOLES, Bankruptcy Judge ...         This matter coming on to be heard on the complaint of JOSEPH DE BARTOLO De Bartolo, a subcontractor engaged in ... Miss. Loan Corp. v. Boyd, 1 Ill.App.3d 927, 274 N.E.2d 825, 827 (1st Dist.1971); In re Frisby", 444 F.Supp. 227, 228 (S.D.Miss.1976); In re Love, 577 F.2d 344, 348 (5th Cir.1978) ...      \xC2" ... ...
  • Prudential Credit Services v. Hill
    • United States
    • U.S. District Court — Southern District of Mississippi
    • April 28, 1981
    ... ... Matter of Hammons, 614 F.2d 399, 402 (5th Cir. 1980); Matter of Bardwell, 610 F.2d 228, 230 (5th Cir. ); Matter of Frisby, 444 F.Supp. 227, 228 (S.D.Miss.1976); In Re Knight, 421 F.Supp. 1387, 1390 (M.D.La. 1976), aff'd., ... ...

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