Holcomb v. New Castle Financial Group, Inc.

FILED
NOT FOR PUBLICATION APR 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: ) No. 07-56630
SCOTT P. HOLCOMB, )
) D.C. No. CV-07-00206-ODW
Debtor. )
) MEMORANDUM*
)
SCOTT P. HOLCOMB, doing )
business as Holcomb Enterprises, )
)
Appellant, )
)
v. )
)
NEW CASTLE FINANCIAL )
GROUP, INC., )
)
Appellee. )
)
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Submitted April 6, 2010**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.
Scott P. Holcomb appeals the district court’s order affirming the bankruptcy
court’s decision that Holcomb was not entitled to discharge of his debt to New
Castle Financial Group, Inc. See 11 U.S.C. § 523(a)(2)(B). We affirm.
(1) Holcomb first asserts that the bankruptcy court erred when it
considered evidence that went to issues which were not properly before it because
they were not covered by the Pretrial Order. Pretrial orders do control the course
of proceedings,1 but they are not given a crabbed interpretation.2 The evidence in
question was actually listed in the Pretrial Order, was admissible on the issues of
reasonable reliance, intent, and credibility, and did not result in improper prejudice
to Holcomb. The bankruptcy court did not err.
(2) Holcomb then asserts that the evidence was insufficient to satisfy New
Castle’s burden to show by a preponderance of the evidence3 that he was not
entitled to his discharge. That, he says, is because the elements of 11 U.S.C. §
1See El-Hakem v. BJY Inc., 415 F.3d 1068, 1077 (9th Cir. 2005).
2
See First Card v. Hunt (In re Hunt), 238 F.3d 1098, 1101–02 (9th Cir.
2001).
3
See Candland v. Ins. Co. of N. Am. (In re Candland), 90 F.3d 1466, 1469
(9th Cir. 1996); La Trattoria, Inc. v. Lansford (In re Lansford), 822 F.2d 902, 904
(9th Cir. 1987).
2
523(a)(2)(B) were not shown.4 He claims that the bankruptcy court’s factual
determinations to the contrary were clearly erroneous. See Greene v. Savage (In re
Greene), 583 F.3d 614, 618 (9th Cir. 2009); Cooper v. Allustiarte (In re
Allustiarte), 786 F.2d 910, 917 (9th Cir. 1986). We disagree.
On this record, the evidence was sufficient to support the findings that
Holcomb tendered a written financial statement to New Castle,5 respecting his
financial condition;6 that the statement was materially false;7 that under all of the
circumstances (including his failure to mention his just filed bankruptcy petition)
his intent was to deceive New Castle;8 and that New Castle reasonably relied9 upon
that statement when it advanced Holcomb credit. As to the latter element, we note
that while New Castle could undoubtedly have been more wary and done more
4
See In re Candland, 90 F.3d at 1469; In re Lansford, 822 F.2d at 904.
5
11 U.S.C. § 523(a)(2)(B).
6
Id. § 523(a)(2)(B)(ii).
7
Id. § 523(a)(2)(B)(i).
8
See Khalil v. Developers Sur. & Indem. Co. (In re Khalil), 578 F.3d 1167,
1169 (9th Cir. 2009); Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015, 1018
(9th Cir. 1997); Pub. Fin. Corp. of Redlands v. Taylor (In re Taylor), 514 F.2d
1370, 1373–74 (9th Cir. 1975).
9
The totality of the circumstances supports that determination. See In re
Candland, 90 F.3d at 1471; see also Cashco Fin. Servs., Inc. v. McGee (In re
McGee), 359 B.R. 764, 774 (B.A.P. 9th Cir. 2006).
3
investigation, Holcomb clearly knew that the information regarding his financial
condition was important to New Castle,10 and it was not at all obvious that
Holcomb was in great financial difficulty.11
AFFIRMED.
10
See In re Lansford, 822 F.2d at 904.
11
In fact, there were no real difficulties with a prior transaction. Cf. Kentile
Floors, Inc. v. Winham, 440 F.2d 1128, 1131–32 (9th Cir. 1971) (more
investigation needed when creditor had a great deal of information suggesting
debtor distress).
4