Matter of Ratajczak

Decision Date06 August 1980
Docket NumberBankruptcy No. 80-126 C.
Citation5 BR 583
PartiesIn the Matter of Holger P. RATAJCZAK, Debtor. MAAS BROTHERS, INC., Plaintiff, v. Holger P. RATAJCZAK, Defendant.
CourtU.S. Bankruptcy Court — Middle District of Florida

John R. Shuman, Clearwater, Fla., for plaintiff.

John Thomas Schrotel, Tampa, Fla., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION DETERMINING DISCHARGEABILITY

ALEXANDER L. PASKAY, Chief Bankruptcy Judge.

THIS IS a contested discharge proceeding and the matter under consideration is the dischargeability, vel non, of a debt admittedly owed to the Plaintiff, Maas Brothers, Inc. by Holger P. Ratajczak, the Defendant involved in the above-captioned adversary proceeding. The complaint seeks a determination that the Defendant is indebted to the Plaintiff in the amount of $1,919.72 and that this indebtedness was created by the Defendant through false pretenses in that he never intended to pay for the merchandise or other things of value obtained by him from the Plaintiff. Accordingly, so contends the Plaintiff, the indebtedness shall be declared to be outside of the protective provisions of the general bankruptcy discharge by virtue of § 523a(2)(A), 11 U.S.C. § 523a(2)(A) of the Bankruptcy Code.

The record as established at the final evidentiary hearing reveals the following:

The Defendant is a college graduate and is currently working on his Masters Degree in education. In the early 1970's, the Defendant established a charge account with the Plaintiff and during the entire period of time, up to the time he filed bankruptcy, maintained his account in good standing and there is no serious dispute that there were no excessive charges on his charge account until sometime in late October of 1979.

The record further reveals that the Defendant, after having been discharged from the Army, had various and sundry employments, none of them of any great consequence, and primarily attended school on a GI Bill and sustained himself and his wife basically on the benefits he received from the Government either in the form of a GI Bill, tuition assistance and a small monthly disability payment plus a federally guaranteed student loan. The Defendant's wife, while working in the earlier years as a clerk, did not work at all during the year 1979 due to pregnancy. In September of 1979, she gave birth to a child and although it appears that she intended to go back to work shortly thereafter, she suffered post-partum depression which required treatment by a psychiatrist and extensive hospitalization subsequent to the Defendant filing his petition under Chapter 7.

The record further indicates that the Defendant maintained two accounts with the Plaintiff, Account No. 738727-7 F and Account No. 739660-0 D. It appears, however, this later account was satisfied and is not involved in the present controversy. Account No. 738727-7 F carried a modest monthly balance up to October 20th. Thus, the September statement indicates an ending balance of $326.16 and the October 20th statement had an ending balance of $571.80. However, the activity on this account markedly increased between October 20th and January 12th, reflecting purchases in excess of a thousand dollars, out of which $900 represents not actual purchases, but purchases of gift certificates on credit, which appear to have been used by the Defendant as a means to obtain not only merchandise but, at least at times, cash representing the difference between the face amount of the certificates and an actual purchase. The record further reveals that these certificates were not in fact purchased to be given to friends or relatives as gifts at all, but were used by the Defendant and his wife.

The record further reveals that on January 30th the Defendant consulted an attorney for the first time for the purpose of inquiring about the possibility of filing bankruptcy and their voluntary petition was, in fact, filed on the following day, February 1, 1980. The Statement of Affairs filed by the Defendant reveals that the total income during the year of 1979 was $2,000 and the year of 1978 was $1,000. It further appears, as noted earlier, that the wife had no earnings during the year of 1979 and the Schedule of Liabilities indicates a total of secured indebtedness in the amount of $1,300, which in addition to a 1979 Chevrolet Camaro, includes hard goods purchased on credit from the Plaintiff, the balance of which is not involved in this controversy, and a small loan which is secured by household goods. However, the schedules also indicate a total unsecured indebtedness of $6,656, among which there is a liability to J.C. Penney in the amount of $4,500 and a balance to Burdines, another department store, in the amount of $1,400. The Defendant obtained his position with the County of Hillsborough as a clerk typist in September of 1979 and had a disposable income from...

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