Ultra Litho Pyt, Limited v. Moore ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1508
ULTRA LITHO PYT, LIMITED,
Plaintiff - Appellee,
v.
JEFFREY F. MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Marvin J. Garbis, Senior District
Judge. (8:07-cv-01444-MJG)
Argued: September 23, 2009 Decided: October 15, 2009
Before MOTZ, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Irene M. KEELEY, United States District Judge for the Northern
District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Rand Lewis Gelber, LAW OFFICES OF RAND L. GELBER, Rockville,
Maryland, for Appellant. Damon Keith Bernstein, LAW OFFICE OF
DAMON K. BERNSTEIN, Rockville, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this Chapter 7 bankruptcy case, a creditor commenced an
advisory proceeding to determine the dischargeability of an
alleged debt. After a bench trial, the bankruptcy court granted
judgment for the creditor. In re Moore, 365 B.R. 589 (Bankr. D.
Md. 2007). The debtor, Jeffrey Moore, appeals to us from the
district court’s judgment affirming the bankruptcy court order.
We too affirm.
I.
Moore, founded, owned, and operated International Graphic
Services, Inc. (“IGS”), a Maryland corporation in the business
of brokering sales of printing presses. In 2000, Moore, on
behalf of IGS, executed two agreements to broker the sale of a
7-color Heidelburg printing press (“Press”) from Ultra Litho
Pyt, Limited to Nicholas Jannes. Ultra sought to sell the Press
to obtain sufficient funds and space to purchase a larger press
from KBA North America.
Pursuant to the first contract with Jannes, IGS agreed to
sell the Press for $1.65 million. The sale was contingent on
IGS obtaining ownership of the Press. Jannes, in accordance
with the contract, paid IGS a deposit of $412,500. Pursuant to
the second contract with Ultra, IGS agreed to purchase the Press
for $1.2 million. IGS paid Ultra a $120,000 deposit, using
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proceeds of the Jannes deposit, and agreed to pay the balance
with an irrevocable letter of credit upon removal of the Press
“no later than February 16, 2001.” IGS planned to use the
letter of credit it expected to obtain from Jannes to close the
deal with Ultra. Due to timing differences between the
obligations of Jannes to IGS and IGS to Ultra, however, these
initial transactions failed to close.
Subsequently, Ultra, Jannes, and KBA, in collaboration with
IGS, negotiated new agreements to sell the Press. Under one
agreement (“Press Agreement”), Ultra agreed to sell the Press to
KBA. In turn, KBA agreed to sell the Press to Jannes for $1.65
million, crediting Jannes for the $412,500 deposit initially
paid to IGS. Moore, on behalf of IGS, initially refused to sign
the Press Agreement and did so only after all parties agreed to
a broad release of IGS and its officers and shareholders, among
others.
Under another agreement (“Settlement Agreement”), which
memorialized a telephone conversation between Moore and Ultra
co-owner and director Colin Finck, Ultra and IGS “settle[d]
their differences with regard to the Contract by IGS and the
holding of the deposit from Jannes by IGS and allow[ed] payment
to IGS from said deposit.” The Settlement Agreement released
IGS of its obligations under the previous contract and
stipulated, among other things, that Ultra had already received
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$120,000 of the deposit, that IGS would keep $150,000 of the
deposit as consideration for services provided to Ultra and
Jannes, and that IGS was to wire $127,031.25 into Ultra’s bank
account. Although Finck verified with Jannes and Moore that
Jannes had, in fact, sent the deposit to IGS, he did not inquire
whether IGS had spent the funds. The bankruptcy court
determined that Ultra would not have agreed to the Press
Agreement if it had known that IGS had spent the Jannes deposit.
IGS never paid the $127,031.25 to Ultra. By the time Moore
executed the Settlement Agreement, IGS had spent the entire
Jannes deposit and had no other means by which to pay Ultra.
Moore filed a petition for Chapter 7 bankruptcy on August 17,
2005. Thereafter, Ultra filed a complaint pursuant to 11 U.S.C.
§ 523(a)(2)(2006) to determine the dischargeability of
$287,031.25 (the $127,031.25 owed Ultra plus the $150,000
retained by IGS as commission).
II.
After a bench trial, the bankruptcy court issued a well-
reasoned opinion, in which it granted judgment to Ultra. The
bankruptcy court determined that Moore’s $127,031.25 debt to
Ultra was an extension of credit obtained by fraudulent means
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and thus non-dischargeable. * Moore appealed that judgment to the
district court, which affirmed. See J.A. 343-345.
III.
Moore now appeals to this court. We review the judgment of
a district court sitting in review of a bankruptcy court de
novo, reviewing the bankruptcy court’s factual findings for
clear error and its legal determinations de novo. In re Biondo,
180 F.3d 126, 130 (4th Cir. 1999).
After careful consideration of the record, the briefs and
oral arguments, and the applicable law, we affirm on the basis
of the bankruptcy court’s well-reasoned opinion.
AFFIRMED
*
The bankruptcy court also concluded that IGS obtained
property by fraudulent means through the acquisition of a sole
ownership interest in the $150,000 commission. The bankruptcy
court’s finding of fact that “Ultra Litho and IGS operated as
if, and understood that, the Jannes Deposit was theirs to
divide,” sufficiently supports the conclusion that “Ultra Litho
had a sufficient stake in the Jannes Deposit that IGS’s receipt
of $150,000 of it by misrepresentation constituted receiving
‘property’ from Ultra Litho.” 365 B.R. at 602. The bankruptcy
court, however, entered judgment solely for the $127,031.25.
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