Matter of Rickey
| Decision Date | 30 January 1981 |
| Docket Number | Bankruptcy No. 80-961 C. |
| Citation | 8 BR 860 |
| Parties | In the Matter of Burton Norris RICKEY, Debtor. SUN BANK AND TRUST COMPANY OF ST. PETERSBURG, Plaintiff, v. Burton Norris RICKEY, Defendant. |
| Court | U.S. Bankruptcy Court — Middle District of Florida |
Burton Norris Rickey, pro se.
Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for Sun Bank & Trust Co. of St. Petersburg.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
THIS IS a contested discharge proceeding initiated by Sun Bank and Trust Company of St. Petersburg (the Bank), the plaintiff who filed this adversary proceeding. The Bank seeks a determination that the debt owed to the Bank by Burton Norris Rickey, (the Debtor) involved in the above-captioned Chapter 7 proceeding shall be declared to be non-dischargeable pursuant to § 523(a)(2)(B) of the Bankruptcy Code. The Bank also seeks the entry of a money judgment pursuant to Bankruptcy Rule 409. The evidence as developed at the final evidentiary hearing reveals the following:
The Debtor is an attorney at law admitted to practice in this State since 1968 and is currently employed as an assistant city attorney by the City of St. Petersburg, Florida. At the time pertinent to this transaction, he was in private practice and apparently in need of funds to maintain his practice. The Debtor approached the Bank in February of 1980 and sought a loan in the amount of $2,000. Prior to granting the loan, he was furnished by the Bank officer a document entitled "Application for Installment Loan" (Pl's. Exh. # 2) and a document entitled "Personal Financial Statement" consisting of four (4) pages. Although it is not clear, it appears that the Debtor filled out the Personal Financial Statement shortly after he was handed the same and after having completed the document, presented it to the loan officer who shortly thereafter approved the loan in the amount of $2,000 and the Debtor received $2,000 after signing a promissory note in the same amount. The loan officer who handled this transaction had authority to grant unsecured loans in this amount without approval of another officer or a loan committee. The Personal Financial Statement indicates in the asset column under real estate that the Debtor is the sole owner of real property valued at $60,000. This column refers to Schedule # 5, part of the same exhibit where the borrower is required to state that the legal and equitable title to all the real estate listed in the statement is solely in the name of the undersigned. Schedule # 5 is left blank indicating again that the real property in question was owned solely by the Debtor. The Personal Financial Statement also indicates that the Debtor was a co-owner of certain securities in the amount of $30,000 listed by him in column 7 of the Personal Financial Statement. This column also refers to a supplementary Schedule # 4 which indicates that the securities referred to were supposed to be Certificates of Deposit in the Clearwater Federal Savings & Loan registered in the name of the Debtor and one Margaret Fulton who turned out to be the mother of the Debtor.
There is no question that the real property in question was owned at all times by the Debtor and his wife as tenants by the entireties and was never solely owned by the Debtor himself. It is equally without dispute that the Debtor has never seen the Certificates of Deposit and the only rational basis to state that he had some interest in the Certificates of Deposit was an alleged statement made to him by his mother that she placed his name on the Certificates for the purpose of assuring that in the event she dies, the Debtor will automatically acquire the Certificates of Deposit without the necessity of going through a probate proceeding. There is hardly any doubt that the Debtor knew at the time he filed the Personal Financial Statement that he had no present cognizable interest in the Certificates. The Debtor did not make any independent investigation as to whether or not the Certificates of Deposit were in existence or whether or not his name appeared as a co-owner. The Debtor offered no explanation why he listed the real property as solely owned by him and concerning the alleged ownership of the Certificates of Deposit he stated that he relied solely on his mother's statement. In addition, he claims that he was assured that the Personal Financial Statement was merely a formality and the loan was granted to him solely based on his good credit history. The Debtor also, of course, denies that he intended to deceive the Bank.
The claim of non-dischargeability is based on § 523(a)(2)(B) which provides in pertinent part as follows:
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