ND IL ED 2016, Bankruptcy No. 14-bk-02689
ND IL ED 2016, Adversary No. 14-ap-00321
Decision: March 28, 2016 Judge: Schmetterer
This Adversary case filed in a Chapter 13 Bankruptcy relates to promissory note fraud between the debtor and creditor. It was tried before Judge Schmetterer. Plaintiff/Creditor Anthony C. Gasunas (“Gasunas”) filed the Complaint to determine dischargeability of the debt owed to him by Debtor/Defendant William W. Yotis, III (“Yotis”). Specifically, the Complaint alleged that Yotis made knowing and fraudulent misrepresentations to borrow money from Gasunas and that the judgment obtained in State Court was not subject to a dischargeable in accordance with §523(a)(2)(A) and (B), as well as §523(a)(4).
Shortly after Yotis and Gasunas met, Yotis disclosed that he had lost his license to practice law. But Yotis also did not disclose that he had been criminally indicted for forgery and charged in a civil suit filed by the Illinois AG with consumer fraud and deceptive business practices. Nord did Yotis tell Gasunas about any allegations of fraud and related misconduct prior to or after he obtained a series of loans from Gasunas. From 2009 to 2010 Yotis solicited loans from Gasunas totaling $52,345 and gave him a Promissory Note in return. When Yotis failed to pay him back, Gasunas filed suit in State Court and secured a judgment for $52,345 plus costs (the “Judgment”). During this period Gasunas and Yotis were friends – having been introduced through Yotis’ wife – Cavallo – and for that reason the Judgment was extended. Prior to meeting Yotis, Gasunas learned from Cavallo that Yotis was a disbarred Attorney, but had gotten his life back together as a salesman for a remodeling company. Cavallo also told Gasunas that Yotis had been incarcerated on what she said were false charges. Eventually, Yotis and Gasunas met and became friendly.
Yotis acknowledged signing a Promissory Note but denied making any misrepresentations and argued instead that any reliance by Gasunas on his alleged representations would not have been justifiable – a prerequisite for such a claim of nondischargeability. In fact, Yotis claimed that Gasunas knew the terms and debt recited in the Promissory Note were false when he signed it.
Following a trial the Court concluded that there had been a series of misrepresentations by Yotis in obtaining loans from Gasunas and that reliance on those misrepresentations was justifiable. Accordingly, Judgment was entered in favor of Gasunas on Count I under § 523(a)(2)(A); but on Count II found in favor of Yotis.
The Bankruptcy Code is meant to provide a fresh start for the “honest but unfortunate debtor.” 523(a)(2)(A) excepts any debt obtained by “false pretenses, a false representation, or actual fraud . . .” from discharge.
Here, Yotis acknowledged signing the Promissory Note that formed the basis of the State Court judgment, and did not deny the facts that amounted to actual fraud. That was enough to except this debt from discharge. Moreover, Yotis’ Intent to deceive was present on these facts as well. Finally, it was clear that Gasunas relied on the representations made by Yotis.
Based on its analysis the Court granted relief on Count I of Gasunas’ Amende Complaint as to the debt that arose from the State Court judgment but denied relief as to Count II.