Central District Consumer Bankruptcy Attorney's Association

"Ain't it the truth?"
te:
>
> I tossing the materials I receivedat a very recent MCLE program on this topic...
>
>
> Peter M. Lively, J.D., M.B.A.
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>
>
> ________________________________
> To: cdcbaa@yahoogroups.com
> Sent: Monday, June 24, 2013 11:39 AM
> Subject: [cdcbaa] Re: fraud in CAL vs fraud in 523(a)(2)
>
>
>
> Prof. Lively, Glad you metioned that. Its another huge misconception.
>
> Muegler v. Benning 413 F.3d 864 (9th Cir. June, 2005)
>
> The 9th Circuit affirmed. Muegler opposed collateral estoppel saying there was no "identity of issues," "judgment on the merits," and a "full and fair opportunity to litigate," under Missouri law. As to identity of the issues, the debtor said that under Section 523(a)(2), a finding was required that he "obtained a direct or indirect benefit" from his misrepresentations which was not required under Missouri law. The 9th Circuit said that that finding is not required per the Supreme Court in Cohen v. De la Cruz where any "debt" owed as result of the fraud is non-dischargeable. The 9th Circuit stated: "As the Fifth Circuit noted, "Cohen indicates that whether the debt arises from fraud is the only consideration material to nondischargeability. It also indicates that we should not read requirements like receipt of benefits into 523(a)(2)(A) and that the discharge exceptions protect fraud victims rather than debtors." Winkler, 239 F.3d at 749."
>
> --- In mailto:cdcbaa%40yahoogroups.com, "Peter M. Lively" wrote:
> >
> > Jon,
> >
> > My understanding of the issues is that while the elements are essentially the same,a 523judgment requires that debtor musttrequire that thedefendantbenefited.
> >
> > Respectfully,
> > Peter
> >
> > Peter M. Lively, J.D., M.B.A.
> > Law Office of Peter M. Lively * Personal Financial Law Center I
> > 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> > Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
> >
> >
> > ________________________________
> > To: mailto:cdcbaa%40yahoogroups.com
> > Sent: Sunday, June 23, 2013 1:32 PM
> > Subject: [cdcbaa] fraud in CAL vs fraud in 523(a)(2)
> >
> >
> >
> > Someone posted recently that fraud under CA law is different than fraud under 523(a)(2). I held my tongue.
> >
> > This is from a June 2013 BAP case:
> >
> > The elements of fraud under Section 523(a)(2)(A) "`mirror the elements of common law fraud' and match those for actual fraud under California law, which requires that the plaintiff show: (1) misrepresentation; (2) knowledge of the falsity of the representation; (3) intent to induce reliance; (4) justifiable reliance; and (5) damages." Tobin v. Sans Souci Ltd. P'ship (In re Tobin), 258 B.R. 199, 203 (9th Cir. BAP 2001)(quoting Younie v. Gonya (In re Younie), 211 B.R. 367, 373"74 (9th Cir.BAP 1997), aff'd, 163 F.3d 609 (9th Cir. 1998)(table decision)).
> >
> > from Shahverdi v. William Hablinski Architecture (In re Shahverdi), BAP No. CC-12-1287-MkTaPa (unpublished) (9th Cir. BAP June, 2013)
> >
> > Time to jump in the pool. Jon
> >
>

The post was migrated from Yahoo.

I tossing the materials I receivedat a very recent MCLE program on this topic...
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
________________________________
To: cdcbaa@yahoogroups.com
Sent: Monday, June 24, 2013 11:39 AM
Subject: [cdcbaa] Re: fraud in CAL vs fraud in 523(a)(2)
Prof. Lively, Glad you metioned that. Its another huge misconception.
Muegler v. Benning 413 F.3d 864 (9th Cir. June, 2005)
The 9th Circuit affirmed. Muegler opposed collateral estoppel saying there was no "identity of issues," "judgment on the merits," and a "full and fair opportunity to litigate," under Missouri law. As to identity of the issues, the debtor said that under Section 523(a)(2), a finding was required that he "obtained a direct or indirect benefit" from his misrepresentations which was not required under Missouri law. The 9th Circuit said that that finding is not required per the Supreme Court in Cohen v. De la Cruz where any "debt" owed as result of the fraud is non-dischargeable. The 9th Circuit stated: "As the Fifth Circuit noted, "Cohen indicates that whether the debt arises from fraud is the only consideration material to nondischargeability. It also indicates that we should not read requirements like receipt of benefits into 523(a)(2)(A) and that the discharge exceptions protect fraud victims rather than debtors." Winkler, 239 F.3d at 749."
@...> wrote:
>
> Jon,
>
> My understanding of the issues is that while the elements are essentially the same,a 523judgment requires that debtor musttrequire that thedefendantbenefited.
>
> Respectfully,
> Peter
>
> Peter M. Lively, J.D., M.B.A.
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>
>
> ________________________________
> To: mailto:cdcbaa%40yahoogroups.com
> Sent: Sunday, June 23, 2013 1:32 PM
> Subject: [cdcbaa] fraud in CAL vs fraud in 523(a)(2)
>
>
>
> Someone posted recently that fraud under CA law is different than fraud under 523(a)(2). I held my tongue.
>
> This is from a June 2013 BAP case:
>
> The elements of fraud under Section 523(a)(2)(A) "`mirror the elements of common law fraud' and match those for actual fraud under California law, which requires that the plaintiff show: (1) misrepresentation; (2) knowledge of the falsity of the representation; (3) intent to induce reliance; (4) justifiable reliance; and (5) damages." Tobin v. Sans Souci Ltd. P'ship (In re Tobin), 258 B.R. 199, 203 (9th Cir. BAP 2001)(quoting Younie v. Gonya (In re Younie), 211 B.R. 367, 373"74 (9th Cir.BAP 1997), aff'd, 163 F.3d 609 (9th Cir. 1998)(table decision)).
>
> from Shahverdi v. William Hablinski Architecture (In re Shahverdi), BAP No. CC-12-1287-MkTaPa (unpublished) (9th Cir. BAP June, 2013)
>
> Time to jump in the pool. Jon
>

The post was migrated from Yahoo.

charsetndows-1252
This is a very useful, educational thread. I believe I was the one who provoked it with a comment that needed correction.
Thanks to our learned colleagues!
Jason
Jason Wallach
jwallach@gladstonemichel.com
On Jun 24, 2013, at 11:39 AM, jonhayes6666 wrote:
> Prof. Lively, Glad you metioned that. Its another huge misconception.
>
> Muegler v. Benning 413 F.3d 864 (9th Cir. June, 2005)
>
> The 9th Circuit affirmed. Muegler opposed collateral estoppel saying there was no "identity of issues," "judgment on the merits," and a "full and fair opportunity to litigate," under Missouri law. As to identity of the issues, the debtor said that under Section 523(a)(2), a finding was required that he "obtained a direct or indirect benefit" from his misrepresentations which was not required under Missouri law. The 9th Circuit said that that finding is not required per the Supreme Court in Cohen v. De la Cruz where any "debt" owed as result of the fraud is non-dischargeable. The 9th Circuit stated: "As the Fifth Circuit noted, "Cohen indicates that whether the debt arises from fraud is the only consideration material to nondischargeability. It also indicates that we should not read requirements like receipt of benefits into 523(a)(2)(A) and that the discharge exceptions protect fraud victims rather than debtors." Winkler, 239 F.3d at 749."
>
> --- In cdcbaa@yahoogroups.com, "Peter M. Lively" wrote:
> >
> > Jon,
> >
> > My understanding of the issues is that while the elements are essentially the same, a 523 judgment requires that debtor must have benefited from the fraud whereas CA law does not require that the defendant benefited.
> >
> > Respectfully,
> > Peter
> >
> > Peter M. Lively, J.D., M.B.A.
> > Law Office of Peter M. Lively * Personal Financial Law Center I
> > 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> > Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310) 391-2462
> >
> >
> > ________________________________
> > To: cdcbaa@yahoogroups.com
> > Sent: Sunday, June 23, 2013 1:32 PM
> > Subject: [cdcbaa] fraud in CAL vs fraud in 523(a)(2)
> >
> >
> >
> > Someone posted recently that fraud under CA law is different than fraud under 523(a)(2). I held my tongue.
> >
> > This is from a June 2013 BAP case:
> >
> > The elements of fraud under Section 523(a)(2)(A) "`mirror the elements of common law fraud' and match those for actual fraud under California law, which requires that the plaintiff show: (1) misrepresentation; (2) knowledge of the falsity of the representation; (3) intent to induce reliance; (4) justifiable reliance; and (5) damages." Tobin v. Sans Souci Ltd. P'ship (In re Tobin), 258 B.R. 199, 203 (9th Cir. BAP 2001)(quoting Younie v. Gonya (In re Younie), 211 B.R. 367, 373"74 (9th Cir.BAP 1997), aff'd, 163 F.3d 609 (9th Cir. 1998)(table decision)).
> >
> > from Shahverdi v. William Hablinski Architecture (In re Shahverdi), BAP No. CC-12-1287-MkTaPa (unpublished) (9th Cir. BAP June, 2013)
> >
> > Time to jump in the pool. Jon
> >
>
>
charsetndows-1252
This is a very useful, educational thread. I believe I was the one who provoked it with a comment that needed correction.Thanks to our learned colleagues!Jason
Jason Wallach
The post was migrated from Yahoo.

Prof. Lively, Glad you metioned that. Its another huge misconception.
Muegler v. Benning 413 F.3d 864 (9th Cir. June, 2005)
The 9th Circuit affirmed. Muegler opposed collateral estoppel saying there was no "identity of issues," "judgment on the merits," and a "full and fair opportunity to litigate," under Missouri law. As to identity of the issues, the debtor said that under Section 523(a)(2), a finding was required that he "obtained a direct or indirect benefit" from his misrepresentations which was not required under Missouri law. The 9th Circuit said that that finding is not required per the Supreme Court in Cohen v. De la Cruz where any "debt" owed as result of the fraud is non-dischargeable. The 9th Circuit stated: "As the Fifth Circuit noted, "Cohen indicates that whether the debt arises from fraud is the only consideration material to nondischargeability. It also indicates that we should not read requirements like receipt of benefits into 523(a)(2)(A) and that the discharge exceptions protect fraud victims rather than debtors." Winkler, 239 F.3d at 749."
te:
>
> Jon,
>
> My understanding of the issues is that while the elements are essentially the same,a 523judgment requires that debtor musthave>
> Respectfully,
> Peter
>
> Peter M. Lively, J.D., M.B.A.
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
>
>
> ________________________________
> To: cdcbaa@yahoogroups.com
> Sent: Sunday, June 23, 2013 1:32 PM
> Subject: [cdcbaa] fraud in CAL vs fraud in 523(a)(2)
>
>
>
> Someone posted recently that fraud under CA law is different than fraud under 523(a)(2). I held my tongue.
>
> This is from a June 2013 BAP case:
>
> The elements of fraud under Section 523(a)(2)(A) "`mirror the elements of common law fraud' and match those for actual fraud under California law, which requires that the plaintiff show: (1) misrepresentation; (2) knowledge of the falsity of the representation; (3) intent to induce reliance; (4) justifiable reliance; and (5) damages." Tobin v. Sans Souci Ltd. P'ship (In re Tobin), 258 B.R. 199, 203 (9th Cir. BAP 2001)(quoting Younie v. Gonya (In re Younie), 211 B.R. 367, 373"74 (9th Cir.BAP 1997), aff'd, 163 F.3d 609 (9th Cir. 1998)(table decision)).
>
> from Shahverdi v. William Hablinski Architecture (In re Shahverdi), BAP No. CC-12-1287-MkTaPa (unpublished) (9th Cir. BAP June, 2013)
>
> Time to jump in the pool. Jon
>

The post was migrated from Yahoo.

You may be thinking of:
*In re Arm*, 87 F.3d 1466 (9th Cir. 1996) which discussed the "indirect
benefit to the debtor from a fraud in which he participates is sufficient
to prevent debtor from receiving the benefits of bankruptcy."
It doesn't read as a requirement that needs to be satisfied, but rather, if
present, it satisfies the elements of fraud.
Christine
On Mon, Jun 24, 2013 at 10:32 AM, Peter M. Lively wrote:
> **
>
>
> Jon,
>
> My understanding of the issues is that while the elements are essentially
> the same, a 523 judgment requires that debtor must have benefited from the
> fraud whereas CA law does not require that the defendant benefited.
>
> Respectfully,
> Peter
>
> Peter M. Lively, J.D., M.B.A.
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310)
> 391-2462
>
> *From:* jonhayes6666
> *To:* cdcbaa@yahoogroups.com
> *Sent:* Sunday, June 23, 2013 1:32 PM
> *Subject:* [cdcbaa] fraud in CAL vs fraud in 523(a)(2)
> **
>
> Someone posted recently that fraud under CA law is different than fraud
> under 523(a)(2). I held my tongue.
>
> This is from a June 2013 BAP case:
>
> The elements of fraud under Section 523(a)(2)(A) "`mirror the elements of
> common law fraud' and match those for actual fraud under California law,
> which requires that the plaintiff show: (1) misrepresentation; (2)
> knowledge of the falsity of the representation; (3) intent to induce
> reliance; (4) justifiable reliance; and (5) damages." Tobin v. Sans Souci
> Ltd. P'ship (In re Tobin), 258 B.R. 199, 203 (9th Cir. BAP 2001)(quoting
> Younie v. Gonya (In re Younie), 211 B.R. 367, 37374 (9th Cir.BAP 1997),
> aff'd, 163 F.3d 609 (9th Cir. 1998)(table decision)).
>
> from Shahverdi v. William Hablinski Architecture (In re Shahverdi), BAP
> No. CC-12-1287-MkTaPa (unpublished) (9th Cir. BAP June, 2013)
>
> Time to jump in the pool. Jon
>
> ****
>
>
>
Christine A. Wilton, Esq.
Law Office of Christine A. Wilton
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You may be thinking of: In re Arm, 87 F.3d 1466 (9th Cir. 1996) which discussed the "indirect benefit to the debtor from a fraud in which he participates is sufficient to prevent debtor from receiving the benefits of bankruptcy."
It doesn't read as a requirement that needs to be satisfied, but rather, if present, it satisfies the elements of fraud.ChristineOn Mon, Jun 24, 2013 at 10:32 AM, Peter M. Lively <petermlively2000@yahoo.com> wrote:

The post was migrated from Yahoo.

Jon,
My understanding of the issues is that while the elements are essentially the same,a 523judgment requires that debtor musthavebenefited from the fraud whereas CA law does notrequire that theRespectfully,
Peter
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
________________________________
To: cdcbaa@yahoogroups.com
Sent: Sunday, June 23, 2013 1:32 PM
Subject: [cdcbaa] fraud in CAL vs fraud in 523(a)(2)
Someone posted recently that fraud under CA law is different than fraud under 523(a)(2). I held my tongue.
This is from a June 2013 BAP case:
The elements of fraud under Section 523(a)(2)(A) "`mirror the elements of common law fraud' and match those for actual fraud under California law, which requires that the plaintiff show: (1) misrepresentation; (2) knowledge of the falsity of the representation; (3) intent to induce reliance; (4) justifiable reliance; and (5) damages." Tobin v. Sans Souci Ltd. P'ship (In re Tobin), 258 B.R. 199, 203 (9th Cir. BAP 2001)(quoting Younie v. Gonya (In re Younie), 211 B.R. 367, 37374 (9th Cir.BAP 1997), aff'd, 163 F.3d 609 (9th Cir. 1998)(table decision)).
from Shahverdi v. William Hablinski Architecture (In re Shahverdi), BAP No. CC-12-1287-MkTaPa (unpublished) (9th Cir. BAP June, 2013)
Time to jump in the pool. Jon

The post was migrated from Yahoo.

Someone posted recently that fraud under CA law is different than fraud under 523(a)(2). I held my tongue.
This is from a June 2013 BAP case:
The elements of fraud under Section 523(a)(2)(A) "`mirror the elements of common law fraud' and match those for actual fraud under California law, which requires that the plaintiff show: (1) misrepresentation; (2) knowledge of the falsity of the representation; (3) intent to induce reliance; (4) justifiable reliance; and (5) damages." Tobin v. Sans Souci Ltd. P'ship (In re Tobin), 258 B.R. 199, 203 (9th Cir. BAP 2001)(quoting Younie v. Gonya (In re Younie), 211 B.R. 367, 37374 (9th Cir.BAP 1997), aff'd, 163 F.3d 609 (9th Cir. 1998)(table decision)).
from Shahverdi v. William Hablinski Architecture (In re Shahverdi), BAP No. CC-12-1287-MkTaPa (unpublished) (9th Cir. BAP June, 2013)
Time to jump in the pool. Jon

The post was migrated from Yahoo.