Impulsora Del Territoria Sur, S.A. v. Cecchini (In Re Cecchini)

ELLIOTT, Bankruptcy Judge,

dissenting:

I dissent. The trial court stated, “The conversion of negotiable instruments is not a generally accepted collection practice. However, the fact that the debtors believed that they were collecting money which was owed to them by the plaintiff negates any intent to injure plaintiff.”

I disagree. Not only is it not a generally accepted collection procedure, it is outright theft. At 37 C.J.S. 61 the editors state that it is not a defense to a charge of forgery that accused had or considered that he had a'just claim for the amount which he would realize from a successful perpetration of the forgery; that accused intended to apply the money obtained by the forgery to the payment of a claim which he had against the person whose name he forged, or that accused believed that he had a right to resort to forgery and other illegal acts to collect a debt.

In State v. Daems, (1934) 97 Mont. 486, 37 P.2d 322, an attorney, without authority, completed blank checks which had been signed by the executor and intended for payment of creditors’ claims, by inserting amounts and his own name. The attorney then negotiated the checks and pocketed the proceeds. The attorney argued that he was owed fees by the estate and that the facts “precluded elements of criminality.” Id., 37 P.2d 322 at 326. The Montana Supreme Court held that even if Daems was entitled to the full amount as legal fees that he secured by. means of the checks, it was no defense to the charge of forgery.

We are required to accept the trial judge’s findings unless clearly erroneous, Bankruptcy Rule 8013.

A finding is clearly erroneous when the reviewing court is left with a firm conviction that a mistake has been made.

Allen v. United States, (9th Cir.1976), 541 F.2d 786, 788. The trial court’s view of Mr. Cecchini’s intent was too charitable and clearly erroneous. He intended to convert the Hotel’s funds to C.V.R.’s use and he was successful.

The logical extension of the majority’s opinion is that if Cecchini traveled to appellant’s hotel and obtained payment at the point of a gun, that the debt would be discharged because Cecchini believed he had a right to set off against the hotel’s debt to C.V.R. Investments. That would not be a defense to a charge of robbery and it should not be a defense to a claim of non-dis-chargeability under § 523(a)(6).

Cecchini had a perfectly acceptable remedy at law through suit and garnishment of the hotel receivables. He chose to forge the checks and convert the proceeds. The liability created should not be discharged.