Basis for 523(a)(6) -- must it be perfected?
Posted: Sun May 12, 2013 11:36 am
Watch out for a major change of circumstance between the signing and the failure to deliver. Could support a good intent initially and later nonperformance. Ask about that on the 2004.
Jason
Sent from my iPhone
On May 11, 2013, at 4:27 PM, "Steven B. Lever" wrote:
> Boy, I wish you were the judge. Id love to see what you just wrote on the judges tentative opinion. Thank you
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> Btw, thats really my sense of it too.
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> The 2004 exam is on Monday and Im having a lovely Saturday here preparing for it.
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Stella Havkin
> Sent: Saturday, May 11, 2013 4:16 PM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Basis for 523(a)(6) -- must it be perfected?
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> I think you have a very strong case as a creditor. When a debtor enters into an agreement, makes no payments on $100,000, then fails to deliver the collateral which was part of the benefit of the bargain for providing the loan in the first place, then it is not just a breach. All payments for loans are in the future. I dont think the future event is the issue. The failure to deliver the collateral triggered by failure to pay, is a part and parcel of an intent to defraud.
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> Stella
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Steven B. Lever
> Sent: Saturday, May 11, 2013 3:41 PM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Basis for 523(a)(6) -- must it be perfected?
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> Stella;
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> I rep the creditor, so I dont really want the argument it was merely a breach, Im just thinking on the other side. I think lack of any payments or any provision of security shows at least bad faith, but does it have to relate to the original promise? In other words, can you misrepresent an intention because that always deals with a future act. Is failure to act on a promise in the future a misrepresentation?
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> Steve
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Stella Havkin
> Sent: Saturday, May 11, 2013 3:30 PM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Basis for 523(a)(6) -- must it be perfected?
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> Then maybe you have an argument that it was only a breach. Your problem is that he did not make any payments. Even two payments would have shown an intent to perform.
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Steven B. Lever
> Sent: Saturday, May 11, 2013 2:15 PM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Basis for 523(a)(6) -- must it be perfected?
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> I think so too, although he was not to tender the security until after the default on the note, about 6 months after signing. Could he not have intended to do it 6 months earlier and then change his mind?
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Stella Havkin
> Sent: Saturday, May 11, 2013 2:10 PM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Basis for 523(a)(6) -- must it be perfected?
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> It is a misrepresentation under 523(a)(2).
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Steven B. Lever
> Sent: Saturday, May 11, 2013 1:59 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Basis for 523(a)(6) -- must it be perfected?
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> I have a creditor client to has a homemade note and security agreement that was executed in 2010 when he was playing amateur lawyer/banker and loaned over $100,000. The borrower promised to give over a Deed of Trust and various property if he didnt pay in the 6 month term.
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> He has never paid anything and filed Chapter 7 this year. Im wondering if his failure to hand over any property or a deed of trust to his residential property, sold in 2012, is the basis for conversion, or whether the failure to hand over the security is just one more broken promise in addition to the promise to pay.
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> Do you think there may be an 11 U.S.C. 523(a)(6) claim here?
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> Steve
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> Law Offices of Steven B. Lever
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> > Steven B. Lever
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> >( Tel. (562) 436-5456 ext. 1
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> >( Fax (562) 485-6886
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> >* sblever@leverlaw.com
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