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United States Bankruptcy Court for the Northern District of New York
April 9, 2010, Decided; April 9, 2010, Filed
Case No. 08-33020, Chapter 7, Adv. Proc. No. 09-50008
MEMORANDUM-DECISION AND ORDER
In this adversary proceeding, Northeast Remarketing Services, Inc. ("Plaintiff) seeks a determination that two debts arising from the alleged conversion of automobile sale proceeds by Constance L. Guthier d/b/a Integrity Auto ("Defendant" or "Debtor"), one reduced to judgment in the amount of $27,184.65 plus interest and the second involving a 2002 BMW automobile in the amount of $27,669.75 plus interest, 1 are nondischargeable under the provisions of 11 U.S.C. sections 523(a)(2), (a)(4) and (a)(6). Defendant answered the complaint by way of general denial and raised several affirmative defenses. On June 29, 2009, Defendant filed an amended answer, which set forth three breach of contract counterclaims. In its reply, Plaintiff denied the allegations and raised the statute of frauds as an affirmative defense to Defendant's counterclaims.
The court conducted a trial on the complaint and counterclaims on September 3, 2009. Because the court finds that Defendant wrongfully converted proceeds arising from the sales of motor vehicles for her own use and that said conversion constituted a "willful and malicious injury by the debtor to another" and the same facts support a finding of embezzlement, this court finds the debts to be nondischargeable under sections 523(a)(6) and (a)(4). The court further finds Defendant's counterclaims to be without merit. This memorandum-decision incorporates the court's findings of fact and conclusions of law as permitted by Fed. R. Bankr. P. 7052.
The court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157(a), 157(b)(1), 157(b)(2)(I) and 1334(b).
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2010 Bankr. LEXIS 2128 *; 2010 WL 1443989
In re: Constance L. Guthier d/b/a Integrity Auto, Debtor.Northeast Remarketing Services, Inc., Plaintiff, v. Constance L. Guthier d/b/a Integrity Auto, Defendant.
willful, sales, conversion, Buyout, funds, retail, proceeds of sale, nondischargeable, counterclaims, malicious, state court, fiduciary, embezzlement, financing, larceny, malicious injury, net proceeds, purchaser, parties, terms
Bankruptcy Law, Discharge & Dischargeability, Exceptions to Discharge, General Overview, Evidence, Burdens of Proof, Preponderance of Evidence, Malicious & Willful Injury, Torts, Intentional Torts, Conversion, Elements, Civil Procedure, Preclusion of Judgments, Estoppel, Collateral Estoppel, Embezzlement & False Representations, Criminal Law & Procedure, Theft & Related Offenses, Larceny & Theft, Embezzlement, Business & Corporate Compliance, Contract Formation, Consideration, Mutual Obligations, Allocation, Contracts Law, Types of Contracts, Oral Agreements, Contracts Law, Statute of Frauds, Requirements, Performance