Tri-County Credit v. Heuang Vanh Leuang ( 1997 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 97-6040SIDM
In re: *
*
HEUANG VANH LEUANG, *
*
Debtor *
*
TRI-COUNTY CREDIT UNION, *
*
Plaintiff-Appellant *
* Appeal from the United
-v.- * States Bankruptcy Court
* for the Southern District
HEUANG VANH LEUANG, * of Iowa
*
Defendant-Appellee *
Submitted: August 21, 1997
Filed: September 10, 1997
Before KRESSEL, SCHERMER, and DREHER, Bankruptcy Judges.
DREHER, Bankruptcy Judge
This is an appeal from the bankruptcy court's decision which
determined that Debtor's obligations on three loan transactions were not
excepted from discharge under § 523(a)(2)(A) of the Bankruptcy Code.
For the reasons set forth below, we affirm.
In 1995, Debtor entered into three loan transactions with
Appellant. In connection with each, Debtor signed a loan application
which included personal financial information. Appellant asserts that
Debtor made a number of false statements in the loan applications.
These included representing that he was not married and had no
dependents, that he owned three vehicles, and that he was a student and
his father was an engineer. Appellant also asserts that, with respect
to one of the loans, Debtor represented that he intended to use the
proceeds to purchase a van when, in fact, he did not.
The bankruptcy court determined that Debtor made some false
statements and did not use the proceeds of one of the loans to purchase
a van, as Debtor had represented he would. The court also found that
Appellant had not proved other elements of a cause of action under §
523(a)(2)(A). These included knowledge of falsity, intent to deceive,
materiality, and justifiable reliance. The bankruptcy court, thus, held
the debts arising from the loans were not excepted from discharge.
On appeal, findings of fact will not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the
bankruptcy court to judge the credibility of a witness. Fed. R. Bankr.
P. 8013; First Nat’l Bank of Olathe, Kansas v. Pontow, 111 F.3d 604, 609
(8th Cir. 1997). "A finding is 'clearly erroneous' when although there
is evidence to support
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it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed." Anderson v.
City of Bessemer, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d
518 (1985) (quoting U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395, 68
S.Ct.525, 541-42, 92 L. Ed. 746 (1948)). We review the legal conclusions
of the bankruptcy court de novo. First Nat'l, 111 F.3d at 609; Estate
of Sholdan v. Dietz, (In re Sholdan), 108 F.3d 886, 888 (8th Cir. 1997).
The bankruptcy court's findings of fact were not clearly
erroneous. There was ample evidence in the record to sustain each of
the court's detailed factual findings. Debtor explained each
inconsistency in the loan applications and also provided an explanation
for why he did not purchase the van with the loan proceeds. The
bankruptcy court judged his testimony to be credible. It is not the
function of an appellate court to substitute its judgment of the
credibility of a witness for that of the trial court. U.S. v. Triplett,
104 F.3d 1074, 1080 (8th Cir. 1997), cert. denied, __ U.S. __, 117 S. Ct.
1837, 137 L. Ed. 2d 1042 (1997), and cert. denied, __ U.S. __, 117 S. Ct.
2445, 138 L. Ed. 2d 204 (1997); U.S. v. Ballew, 40 F.3d 936, 942 (8th Cir.
1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1813, 131 L. Ed. 2d 737
(1995); Handeen v. LeMaire (In re LeMaire), 898 F.2d 1346, 1349 (8th
Cir. 1990).
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The bankruptcy court concluded that the debts were not excepted
from discharge under § 523(a)(2)(A). However,
§ 523(a)(2)(B) was applicable to that portion of Appellant's case which
rested on misrepresentations contained in written statements concerning
Debtor's financial condition. First Nat'l, 111 F.3d at 609. Appellant
did not specifically plead, nor attempt to prove, a cause of action
under § 523(a)(2)(B). In addition to being deficient with respect to the
elements of proof on which the bankruptcy court made findings, the
record is devoid of any evidence1 of reasonable reliance. Appellant,
thus, also failed to prove a cause of action under § 523(a)(2)(B).
ACCORDINGLY, the decision of the bankruptcy court is AFFIRMED.
A true copy.
Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL
FOR THE EIGHTH CIRCUIT
1
At oral argument debtor moved to strike portions of
Appellant's Appendix, or, alternatively, to supplement the
record. This court has granted the request to supplement the
record. Accordingly, the record includes both the Appellant's
Appendix and the Supplemental Appendix of the Defendant-Appellee.
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