Rae v. Estate of Van Buren , 34 F. App'x 897 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: RICHARD RAE, 
Debtor.
RICHARD RAE
Plaintiff-Appellee,  No. 01-2238
v.
ESTATE OF RENE VAN BUREN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-99-1724-A, BK-97-12939)
Argued: April 4, 2002
Decided: May 2, 2002
Before MICHAEL and MOTZ, Circuit Judges, and
Walter K. STAPLETON, Senior Circuit Judge of the
United States Court of Appeals for the Third Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Jeffrey Marc Sherman, O’ROURKE & CUNDRA, Wash-
ington, D.C., for Appellant.
2 IN RE RAE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
After Richard Rae defaulted on a loan from Rene Van Buren, Rae
filed for bankruptcy protection. Because Rene Van Buren had died in
the interim, her estate filed a claim in Rae’s bankruptcy case. The
bankruptcy court disallowed the claim, reasoning that the underlying
loan was usurious under Florida law; the district court affirmed. The
Van Buren estate appeals, contending that Rae waived his usury argu-
ment below, that Rae failed to prove the loan was usurious, and that
Rae’s perjury and falsification require a new trial. We affirm.
I.
By way of background, we note that before the loan that led to this
appeal, Rae, the debtor, had conducted financial transactions for sev-
eral years with David Van Buren, the son and executor of the estate
of Rene Van Buren. In their dealings, Rae and David Van Buren
tended to rely on uneven and informal documentation.
Rae, David Van Buren, and Rene Van Buren were all present at the
formation of the loan in question. Rae’s account of that transaction,
which the bankruptcy court expressly credited over contrary testi-
mony by witnesses for the Van Buren estate, is that Rene Van Buren
loaned him $100,000, at 18% interest according to the written docu-
mentation, and that he paid an additional 12% interest, or $12,000, to
David Van Buren, to yield a total interest rate of 30%. Florida’s usury
law (which, the parties agree, applies here) forbids any recovery on
a debt with an interest rate greater than 25%, see Fla. Stat. ch. 687,
071 (2,7) (2002); Dixon v. Sharp, 276 So.2d 817, 819 (Fla. 1973), and
Rae testified that the transaction was deliberately structured in two
parts to hide the usury. The Van Buren estate contends that the trans-
actions were separate and legitimate.
IN RE RAE 3
Although he made various payments, the purpose and implications
of which the parties disputed below, Rae defaulted on the Van Buren
loan. Unable to meet other financial obligations as well, Rae applied
for and on August 8, 1998, received a general discharge in bank-
ruptcy. On November 9, 1998, however, after a trial, the bankruptcy
court revoked Rae’s general discharge under 11 U.S.C.A. § 727 (West
1993 & Supp. 2001), which bars discharge in certain circumstances.
In the revocation proceeding, Rae did not formally plead that the Van
Buren loan was invalid as usurious, but he did testify to this effect.
When revoking the discharge ("the revocation proceeding"), the
bankruptcy court declined to rule, as moved by the Van Buren estate,
that Rae’s debt to the Van Buren estate was nondischargeable. See 11
U.S.C.A. § 523 (West 1993 & Supp. 2001). After the revocation pro-
ceeding, then, the Van Buren estate was free to pursue its claim, since
all of Rae’s debts had been reinstated, but it had not won any specific
ruling as to its own claim.
On December 4, 1998, the Van Buren estate filed a proof of claim
in Rae’s bankruptcy case. See 11 U.S.C.A. §§ 501, 726 (West 1993
& Supp. 2001). Rae objected to this proof of claim on the ground that
the underlying loan had been usurious. See 11 U.S.C.A. § 502 (West
1993 & Supp. 2001). On April 20, 1999, after a bench trial ("the proof
of claim proceeding"), the bankruptcy court disallowed the Van
Buren estate’s claim against Rae, finding the loan usurious. Expressly
relying on credibility determinations favoring Rae over David Van
Buren and other witnesses for his mother’s estate, the court ruled that
the two payments constituted one transaction with an interest rate of
30% that was thus usurious under Florida law. In doing so, the court
noted, however, that Rae’s explanation of a particular check he had
submitted in support of his story was unsatisfactory, because Rae
could not explain why the check said "3 superbowls" as well as "inter-
est" in its description line.
On April 30, 1999, the Van Buren estate moved for reconsideration
pursuant to Bankruptcy Rule 9023 (2002). On June 10, 1999, the Van
Buren estate amended and supplemented its earlier motion to recon-
sider, moving for relief from the judgment or a new trial under Bank-
ruptcy Rules 9023 and 9024 (2002). The ground for the supplemental
pleading, which had not been raised in the April 30 motion, was
4 IN RE RAE
newly discovered evidence of fraud. The Van Buren estate offered
new evidence that Rae had altered the markings on two checks,
including the check that the bankruptcy court had expressly found
questionable in its earlier ruling; after the checks cleared, Rae added
the notation "interest" to the description section of one check and
"prepaid interest" to that of the other check.
On June 15, 1999, the bankruptcy court held a hearing on the
estate’s motion. Rae was unable to dispute the Van Buren estate’s evi-
dence of fraud. Nevertheless, the court denied the estate’s motion in
all respects on July 9, 1999, explaining, inter alia, that "notations on
the checks weighed so little in the balance that it could not affect the
result reached." Whether the court held an entirely new trial or merely
reopened the record for new evidence, the court specifically stated, "I
am convinced that I would reach exactly the same result on the under-
lying issue, which was the defense of usury in this case."
The district court affirmed in full, and the Van Buren estate timely
noted this appeal. We review the bankruptcy court’s findings of fact
for clear error and the legal conclusions of the bankruptcy and district
courts de novo, considering the record as a whole. See In re Morris
Communications, 914 F.2d 458, 467 (4th Cir. 1990).
II.
The Van Buren estate first contends that in support of Rae’s con-
tention that the loan was usurious, Rae failed to offer "clear and satis-
factory" evidence, as required by Florida law. We disagree. To show
that a transaction is usurious, Florida law requires "clear and satisfac-
tory" evidence of (a) an existing loan, (b) an understanding that the
money would be returned, (c) an agreement that the rate of interest
would be greater than the legal limit, and (d) a "corrupt intent to take
more than the legal rate for the use of the money loaned." Dixon, 276
So.2d at 819 (citation omitted). In attacking Rae’s evidence of usury,
the Van Buren estate relies on negative findings that the bankruptcy
court made as to Rae’s honesty and other factors that fundamentally
go to the witnesses’ relative credibility. The Achilles heel of this
approach is the bankruptcy court’s explicit determination that Rae’s
credibility — even in light of the altered checks — was greater than
that of the Van Buren estate’s witnesses. Rae’s account, once
IN RE RAE 5
accepted by the trier of fact, is more than sufficient, considered with
the available documentation, to provide clear and satisfactory evi-
dence that the agreement among Rae and the Van Burens was usuri-
ous under Florida law. For the reasons stated by the district court, see
Estate of Van Buren v. Rae (In re Rae), No. 99-1724-A, slip op. at
3-4 (E.D. Va. Aug. 23, 2001), we will not second guess the credibility
determinations of the bankruptcy court.
The estate next argues that because Rae failed formally to plead an
affirmative defense of usury during the revocation proceeding, he
waived the right to make any usury argument in the future. See Bankr.
R. 7008, 7013, 4007(e) (2002). At the proof of claim proceeding, the
bankruptcy judge ruled that at the revocation proceeding he had never
reached the question of the validity of the Van Buren loan to Rae,
because he had rejected the Van Buren estate’s argument at an earlier
step, when ruling that the Van Buren debt was not nondischargeable
under § 523. In order to rule the other way, to hold the debt nondis-
chargeable, the court would have had to reach the debt’s validity, but
in declining to so rule, the court said, it simply did not reach the issue.
As the court noted, the usury issue was raised in testimony in the
revocation proceeding, though not formally pled. In addition, the Van
Buren estate later had a full opportunity to litigate the matter in the
proof of claim proceeding.
Under the rationale that the Van Buren estate urges upon us, every
dischargeability and revocation proceeding would have to address the
validity of every underlying claim. Yet, the estate has not cited a sin-
gle case, considering either dischargeability, (11 U.S.C.A. § 523) or
revocation (11 U.S.C.A. § 727), with the result it seeks in this case.
The estate does point to cases showing that a bankruptcy court may
address validity during a dischargeability proceeding under § 523. See
In re Gergely, 186 B.R. 951 (B.A.P. 9th Cir. 1995), rev’d on other
grounds, 110 F.3d 1448 (9th Cir. 1997); In re Shapiro, 22 B.R. 685(Bankr. E.D. Pa. 1982). But it has failed to offer (nor have we
located) any case holding that a debtor waived an invalidity argument
by failing to raise it in a proceeding in which a court did not deem
a debt nondischargeable under § 523. Cf. Sanders v. First Nat’l Bank
in Great Bend, 114 B.R. 507 (M.D. Tenn. 1990) (dismissing a civil
non-bankruptcy complaint because it had not been pled in an earlier
proceeding that resulted in a ruling of nondischargeability). Nor has
6 IN RE RAE
the Van Buren estate identified a single case dealing with a determi-
nation of the validity of a debt at a general revocation proceeding
under § 727.
Moreover, contrary to the Van Buren estate’s contention that the
usury defense is waived and therefore "forever barred," the bank-
ruptcy rules allow a debtor to resurrect even a compulsory counter-
claim if it can show "oversight, inadvertence, or excusable neglect, or
when justice so requires." Sanders, 114 B.R. at 515 n.3; Bankr. R.
7008, 7013. Given the liberality of the rules, and the Van Buren
estate’s failure either to provide one case on point or to show surprise
or prejudice, we decline to reverse the bankruptcy court for its han-
dling of this litigation.
Finally, the Van Buren estate contends that the bankruptcy court
violated Bankruptcy Rules 9023 and 9024, which incorporate Federal
Rules of Civil Procedure 59 and 60, respectively, in refusing to over-
turn its own usury ruling on the ground that Rae perjured himself and
faked evidence. Although we view the evidence of Rae’s fraud at
least as seriously as did the bankruptcy judge, who described it as
"very troubling," we find no basis for finding a violation of Bank-
ruptcy Rules 9023 or 9024.
With respect to Rule 9023, the bankruptcy court explained that the
motion was late given that rule’s strict ten-day time limit. See Fed. R.
Civ. P. 59. The Van Buren estate made no argument in its brief as to
the timeliness of the motion, and has thus waived any challenge to
this procedural ruling. See Fed. R. App. P. 28(a)(9); see, e.g., Marvel
Specialty Co. v. Bell Hosiery Mills, Inc., 330 F.2d 164, 169 n.5 (4th
Cir. 1964).
As for Rule 9024 (incorporating Rule 60), contrary to the implica-
tion of the Van Buren estate’s argument, the bankruptcy court plainly
understood the different standards applicable under Federal Rules of
Procedure 60(b)(2) and 60(b)(3). Pursuant to Rule 60(b)(2), the court
noted not only that the newly discovered evidence was cumulative but
also that it would not have altered the result of the trial; both are rele-
vant observations under that subsection of the rule. See Boryan v.
United States, 884 F.2d 767, 771 (4th Cir. 1989). We see no reason
IN RE RAE 7
to believe that these conclusions constituted an abuse of discretion.
See id. at 772.
Under Rule 60(b)(3), the bankruptcy court had to determine
whether the Van Buren estate had shown a "meritorious defense,"
misconduct proven by clear and convincing evidence, and that the
movant was not fully permitted to present its case because of the mis-
conduct. Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir. 1994) (grant-
ing a new bench trial). The bankruptcy court rejected the motion on
the third prong. The court concluded that the estate had had a full and
fair opportunity to litigate its case despite this evidence, noting that
the parties extensively debated what the notations on the checks might
have meant and what the checks might have covered. Indeed, David
Van Buren testified as to the difference in handwriting between the
two notations on one check, and the court itself, in its judgment
before the new evidence of falsification was offered, noted that Rae
had been unable satisfactorily to account for one check. Given that the
bankruptcy court held a full two-hour hearing on the new evidence,
and that the bankruptcy court had expressly doubted this aspect of
Rae’s testimony in its initial ruling, we decline to hold that the court
abused its discretion in denying the motion.
III.
For these reasons, the district court’s judgment affirming the judg-
ment of the bankruptcy court is
AFFIRMED.