In the Matter of William Albert Talor, AKA William A. Taylor, Bankrupt Public Finance Corporation of Redlands v. William A. Taylor ( 1975 )

OPINION

KILKENNY, Circuit Judge:

Appellant creditor filed an application to determine the dischargeability of a debt owed it by appellee bankrupt, claiming the debt to have been fraudulently obtained under § 17(a)(2) of the Bankruptcy Act, 11 U.S.C. § 35(a)(2). The bankruptcy referee found for appel-lee. Appellant petitioned for review, the district court sustained the referee’s findings and conclusions, and this appeal follows. We affirm.

FACTS

Appellee entered appellant’s office in October, 1971, and applied for a consolidation loan in excess of $3,000.00. He had previously obtained credit from appellant in August, 1970, and July, 1971. Appellee was asked by appellant’s agent to complete a form entitled “Statement for Purpose of Obtaining a Loan or Extension of Credit.” The form required a listing of the applicant’s other creditors, the nature of the other debts, and the amounts owed.

At the time of his loan application, appellee owed over $23,000.00 to other creditors, consisting, in part, of $13,-000.00 owing on a real property deed of trust. Appellee listed none of these debts on the statement. A significant factual dispute exists concerning what appellee was told by appellant’s agent to include on the form and the manner, if at all, in which appellee was led to respond.

Appellee testified that he informed appellant’s agent about the second mortgage on his home in Pico Rivera and included only the home in Fontana because the agent told him, “Put your house that you’re living in now, because that’s the debt you owe, anyway.” Ap-pellee said he did not enter the Pico Rivera debt and two smaller bills “. because he [appellant’s agent] said I didn’t need them on there.”

As a precondition to extending the credit, appellant obtained a security interest in the household furniture at his Fontana home. However, appellee failed to disclose, orally or otherwise, that he had given AVCO Financial Services an identical security interest a month earlier. Appellee said he believed appellant would find the AVCO transaction and the other debts in their own records since they had been dealing with him for a period of years. He denied any intention of hiding any debts from appellant.

The record shows that appellant did not rely entirely on the appellee’s statements or the written documents. It reveals that appellant ran a credit clearance exchange search on appellee, but evidently used the wrong exchange. This supports appellee’s claim that he thought their own records and inquiries would disclose the AVCO transaction. Appellant’s representative did not deny appellee’s testimony that he did not list the Pico Rivera debt and other small bills because the representative told him that he did not need to. The representative just did not recall any conversation that he might have had with appellee with reference to other debts. Beyond that, appellee testified that appellant knew that “. . .1 had a loan with AVCO before. It was on their listing there.”

Appellant’s witnesses testified that ap-pellee’s loan would never have been granted had he fully disclosed his liabilities, especially with regard to the AVCO security interest. In addition, appellant contended that it had no other way of knowing of appellee’s AVCO debt due to its being listed on an area credit clearance exchange different from their own.

After a full evidentiary hearing, the referee found £hat the evidence did not sustain appellant’s burden of proving that appellee intended to deceive appellant in obtaining the loan. Accordingly, the debt to appellant was ordered discharged.

ISSUES ON APPEAL

I. Did the referee apply to the evidence the proper burden of proof?

II. Did the referee err in finding that appellant failed to sustain its burden of proof?

I.

Section 17(a) of the Bankruptcy Act, 11 U.S.C. § 35(a), lists certain debts not affected by a discharge, including “(2) liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his [bankrupt’s] financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive . . .

[, 2] This section has traditionally been subject to the same rule of strict, literal construction governing all other exceptions to the Bankruptcy Act. Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915). Courts have consistently held that in order for § 17(a)(2) to bar a discharge, the party alleging fraud must prove actual or positive fraud, not merely fraud implied by law. In re Dolnick, 374 F.Supp. 84, 90 (N.D. 111.1974); In re Adams, 368 F.Supp. 80 (D.S.D.1973); United States v. Syros, 254 F.Supp. 195, 198 (E.D.Mo.1966); 1A Collier on Bankruptcy § 17. (S).¹ This fraud is the type involving moral turpitude or intentional wrong, and thus there can be no mere imputation of bad faith. According to Sweet v. Ritter Finance Co., 263 F.Supp. 540, 543 (W.D.Va. 1967), the objecting party’s burden of proof consists of five elements:

“. . . (1) the debtor made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such representations, and (5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.” [Emphasis supplied.]

While these authorities are not controlling, they are persuasive and, in our opinion, properly construe Section 17(a)(2) of the Bankruptcy Act, 11 U.S.C. § 35(a)(2).

Cases such as Morimura, Arai & Co. v. Taback, 279 U.S. 24, 49 S.Ct. 212, 73 L.Ed. 586 (1929), on which appellant relies, construe former § 14(b) of the Bankruptcy Act, rather than § 17(a)(2), which is before us. Beyond that, the Master in Taback made no findings of fact, a failure which the Supreme Court recognized and then went on to make its own examination of the facts. We add that the “clearly erroneous” rule was not in effect at the time of the Taback decision. Other cases cited by appellant are no more in point.

Accordingly, we hold the burden of proof was on appellant to show that appellee intentionally and purposefully attempted to deceive appellant in obtaining the loan. Although a few cases suggest that the burden of proof changes when a prima facie case of falsity has been presented, the true rule is that while the burden of going forward may change, the burden of proof does not. Here, the appellee took the witness stand and obviously persuaded the referee of a lack of intent.

II.

Even assuming that appellee’s statements, the other testimony and exhibits present some evidence of fraudulent intent, nonetheless, we are subject to the “clearly erroneous” requirement of Rule 52(a), FRCivP. As in other civil matters, a bankruptcy referee’s findings of fact are to be upheld unless they are clearly erroneous. Coen v. Zick, 458 F.2d 326, 328 (CA9 1972); Kentile Floors, Inc. v. Winham, 440 F.2d 1128 (CA9 1971). The question of intent to deceive is particularly one of fact, and so the bankrupt’s credibility is an important factor. In re Ostrer, 393 F.2d 646 (CA2 1968);² Becker v. Shields, 237 F.2d 622, 625 (CA8 1956). Here, the referee’s findings must be accorded great weight because he had an opportunity to hear and observe the demeanor of the bankrupt and the other witnesses. Miguel v. Walsh, 447 F.2d 724, 726 (CA9 1971); Greenfield State Bank v. Copeland, 330 F.2d 767, 769 (CA9 1964).³

Our colleague’s dissent is grounded principally on selected language taken from United States v. United States Gypsum Co., 333 U.S. 364, 385-396, 68 S.Ct. 525, 92 L.Ed. 746 (1948), one of the classic cases on the “clearly erroneous” rule, which he says should be applied to our facts. Here, as distinguished from United States Gypsum, we are governed by a special statute which places squarely on the shoulders of the objecting creditor the burden of proof in establishing the bankrupt’s intent to defraud. The language used in the decision, emphasized in the dissent, must be read in the light of this controlling statute as construed in the cases cited in Part I of this opinion. In United States Gypsum, the Court held that “. . . proof of an express understanding that each party would sign the agreements was not a ‘prerequisite to an unlawful conspiracy’.” Id. at 394, 68 S.Ct. at 541. Beyond that, the Court held that in an antitrust case, “. . .a strong inference arises that such agreements [a series of separate, but similar, agreements with competitors] are the result of concerted action.” Id. Needless to say, there is no such presumption or inference in favor of appellant in the instant case. Here, the presumption under the statute favors ap-pellee. Consequently, United States Gypsum does not fit our facts.

Beyond that, our colleague’s own exhaustive majority opinion in Lundgren v. Freeman, 307 F.2d 104, 113-115 (CA9 1962), makes it clear that Rule 52(a) controls, even though the finding is based on documentary evidence or undisputed facts, when different inferences may be drawn from the evidence. Recent cases following the Lundgren rule are Transducer Patents Co. v. Renegotiation Board, 492 F.2d 247, 250 (CA9 1974), and United States v. Alaska S.S. Co., 491 F.2d 1147, 1151 (CA9 1974). Inasmuch as we believe that different inferences can be drawn from the entire record, some of which are favorable to appellee on the issue of intent, we hold that the referee’s findings are not clearly erroneous.

The judgment of the district court is affirmed.

1 . State courts are in agreement, e. g., General Finance Loan Co. of Downtown Shreveport v. Allen, 165 So.2d 20 (La.App.1964); Friendly Finance Co. v. Stover, 109 Ga.App. 21, 134 S.E.2d 837 (Ga.App. 1964); Zerega Distributing Co. v. Gough, 52 Wash.2d 443, 325 P.2d 894 (1958).

2 . Construing § 14c(3) of the Bankruptcy Act, 11 U.S.C. § 32(c)(3).

3 . For purposes of factual similarity to the instant case, see In re Adams, supra.