- Category: Judge Somers
- Published on 24 March 2009
- Written by Judge Somers
Case 07-05338 Doc# 86 Filed 03/18/09
SIGNED this 18 day of March, 2009.
Page 1 of 15
Dale L. Somers
UNITED STATES BANKRUPTCY JUDGE
Opinion designated for print publication and on-line use
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS
TERRY G. ANDERSON and
BRENDA M. ANDERSON,
TERRY G. ANDERSON,
CASE NO. 07-11656
ADV. NO. 07-5338
MEMORANDUM OPINION AND ORDER FINDING DEBT
NONDISCHARGEABLE IN PART
This case is a dischargeability adversary proceeding under 11 U.S.C. §§ 523(a)(2)(A),
(a)(4), and (a)(6), seeking to except from discharge an unpaid judgment entered by the District
Case 07-05338 Doc# 86 Filed 03/18/09 Page 2 of 15
Court of Kearny County, Kansas, Case No. 2005 CV 10, in favor of Plaintiff Nathan Guinn
against Debtor Terry G. Anderson. The matter was taken under advisement following trial held
on January 9, 2009, at which Plaintiff appeared by J. Scott Koksal and Defendant appeared in
person and by counsel Paul W. Joslin. The Court is now ready to rule, and for the reason stated
below finds the judgment nondischargeable in part under § 523(a)(2)(A) and (a)(4). The Court
On December 23, 2003, Plaintiff Guinn was arrested for theft in Finney County, and his
bail was set at $10,000. Guinn contacted Anderson, who, as attorney-in-fact for American
Surety Company, provided an appearance bond. The claim of nondischargeablility arises out of
the undisputed fact that Plaintiff Guinn paid Defendant Anderson, a licensed bail bondsman,
between $8,000 and $9000 in excess of the premium for the $10,000 bail bond. Plaintiff and
Defendant have vastly different versions of the facts which gave rise to the excess payment.
Plaintiff Guinn, because he was incarcerated out of state, was unavailable for trial but
testified as follows by deposition. On February 23, 2003, both Plaintiff Guinn and his brother
were arrested in Finney County. Plaintiff’s bond was set at $10,000 and his brother’s at $1,000.
Guinn, who had not previously obtained an appearance bond, found Anderson’s name on a clip
board inside the jail and phoned him. According to Guinn, Anderson: (1) Said he would provide
1 This Court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C. §§
157(a) and 1334(a) and (b), and the Standing Order of the United States District Court for the District of
Kansas that exercised authority conferred by § 157(a) to refer to the District's bankruptcy judges all
matters under the Bankruptcy Code and all proceedings arising under the Code or arising in or related to a
case under the Code, effective July 10, 1984. Furthermore, this Court may hear and finally adjudicate this
matter because it is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). There is no objection to venue
or jurisdiction over the parties.
Case 07-05338 Doc# 86 Filed 03/18/09 Page 3 of 15
the bonds for $10,000, without a breakdown of costs other than there would be a $100 fee for
Guinn’s brother’s bond; (2) did not tell Guinn that he could have posted $10,000 cash in lieu of a
surety bond; (3) told Guinn he needed $10,000 to make sure that Guinn “didn’t run from the
courts;” and (4) represented that he would return all of the $10,000 except the $100 fee for his
brother’s bond, when Guinn’s case was over. Guinn testified on cross examination as follows:
Q. And you understood it was -- it was going to cost you
$10,000 to get out of jail; is that correct?
Q. And he [Anderson] didn’t -- he did not indicate that he
only needed a portion of that money to bail you out?
A. No, he didn’t.
Q. He -- as you previously testified you said he needed the
whole 10,000 to do it; is that correct?
Guinn withdrew approximately $10,0002 cash from his bank account, Anderson was given the
full amount of the withdrawal, and appearance bonds were provided.
Anderson testified in person as follows. He had been in the bonding business for about 3
to 4 months when Guinn called. The cost of a $10,000 appearance bond is 10% of the bond
amount, plus a $75 fee, which in this case was $1,075.3 Anderson’s version of the circumstances
surrounding the payment of approximately $10,000 is significantly different from that of Guinn.
According to Anderson, the money in excess of the bond premium paid to Anderson by Guinn
2 Anderson testified that the amount withdrawn was slightly less than $10,000, but did not recall
the precise amount. The Court will use $10,000, since the precise amount is not material to the issues
before the Court.
3 Guinn testified that he paid $100 for his brother’s bond.
Case 07-05338 Doc# 86 Filed 03/18/09 Page 4 of 15
was an “inducement”or gift offered by Guinn,4 which Anderson accepted, without making an
agreement to return any of the payment. Mr. Anderson testified as follows:
. . . When I visited with him [Mr. Guinn] the morning of the 23rd,
there was nobody available to co-sign [a cash bond], and he
continuously called me throughout the day. By the end of the day
when I was up there writing another bail bond, he asked if I would
come talk to him again. At that time when I was sitting there with
him, he told me he had money in a bank in Scott City. He then
told me, he said I will give you all of the money if you will get me
out of jail today. You can keep all that money if you will just get
me out of jail today, so I can be with my pregnant wife for
Q. He made you an offer?
A. Yes, sir, he did.
Q. Okay. Did you accept that offer?
A. Yes, sir, I did.
It is Anderson’s contention that although he told Guinn that he could post a $10,000 cash bond
with the assistance of someone other than Anderson and that the money, less costs, would be
returned if he appeared, Guinn nevertheless turned over the $10,000 to Anderson as a gift.
After Guinn’s last court appearance, he called Anderson and requested return of the
excess payment. Guinn contends that Anderson told him he would need another day to check
with the court. Thereafter, Anderson did not return the money and, according to Guinn,
Anderson told Guinn that Anderson’s wife had spent it on credit cards and bills. Anderson’s
version is different. Anderson testified that he told Guinn that he had given the money to
Anderson as a gift “and we signed paper work according to do that.” Anderson then called a
4 In a motion for summary judgment, which was treated as a trial brief (doc. 30), Anderson
contended that the excess payment was a “bribe.” At the close of the trial, Anderson’s counsel moved to
conform the pleadings to the evidence, so the Court shall disregard this position which is contrary to the
Case 07-05338 Doc# 86 Filed 03/18/09 Page 5 of 15
representative of the bonding company who, according to Anderson, “said you should be okay,”
since he represented he had a signed receipt. When Anderson couldn’t find the receipt, he called
Guinn but denies that the told him that his wife had spent the money. Anderson testified that he
told Guinn that he did not have sufficient cash to make the payment since the extra payment had
been used for salaries and business expenses and suggested the parties meet so he could sign a
promissory note. According to Anderson, until inquiry following Guinn’s request for payment,
Anderson thought he had a right to take the excess payment.
Anderson agreed to restore the excess payment to Guinn through periodic payments, but
eventually stopped making payments. In March 2004, Anderson executed and delivered to
Guinn a promissory note for payment of $8400, with interest at 7% per year, and providing for
the payment of attorney fees and costs of collection. Anderson defaulted. On June 2, 2005,
Guinn sued Anderson on the note in Kearny County District Court. A Journal Entry granted
Guinn judgment against Anderson for $7,116, comprised of $5,800 principal, $330 interest, plus
interest from the date of judgment until paid, $870 in attorney fees, and $116 for costs.
Anderson testified that he had no notice that the judgment would be entered against him because
his attorney did not keep him informed of the lawsuit, but he has never sought to have the
judgment set aside.
FINDINGS OF FACT AND CONCLUSIONS OF LAW.
A. Exceptions from Discharge in General.
Guinn seeks to except from discharge the amount due him from Anderson on the Kearney
County judgment. If Anderson’s debt to Guinn was nondischargeable when it arose, the
execution of the promissory note, which did not include a release from any claims, such as fraud
Case 07-05338 Doc# 86 Filed 03/18/09 Page 6 of 15
or embezzlement, and was the basis for the judgment, did not make Anderson’s dishonest debt
honest. Under these circumstances, there are two separate and distinct causes of action: One is
on the debt and the other is on dischargeability of that debt.5 The debt which is the subject of the
note and judgment can amount to a debt for money obtained by fraud under the dischargeability
statute.6 The Court’s focus is therefore upon the circumstances which lead to the creation of the
debt owed by Anderson to Guinn for return of the amount paid in excess of the true cost of the
“The discharge provisions of § 523 will be strictly construed against the creditor and
liberally construed in favor of the debtor.”7 The Creditor has the burden of proof on all elements
by a preponderance of the evidence.8 Often credibility based upon the court’s observation of
witness demeanor plays a significant role in determining dischargeability. However, in this case,
the fact that Plaintiff Guinn was required to testify by deposition and Defendant Anderson
testified in person presents the Court with difficulties when ascertaining their credibility. The
Court has therefore evaluated the conflicting testimony based upon its content and consistency
with all the circumstances rather than based upon evaluation of witness demeanor or general
5 Resolution Trust Corp. v. McKendry (In re McKendry), 40 F.3d 331, 336 (10th Cir. 1994),
citing Brockenbrough v. Taylor (In re Taylor), 54 B.R. 515, 517-18 (Bankr. E.D. Va. 1985).
6Archer v. Warner, 538 U.S. 314 (2003).
7 Groetken v. Davis (In re Davis), 246 B.R. 646, 652 (10th Cir. BAP 2000) aff’d in part, vacated
in part on other grounds, 35 Fed. Appx. 826 (10th Cir. 2002).
8 Grogan v. Garner, 498 U.S. 279 (1991).
Case 07-05338 Doc# 86 Filed 03/18/09 Page 7 of 15
B. Exception from Discharge under § 523(a)(2)(A).
Guinn first alleges that his claim against Anderson should be excepted from discharge
under § 523(a)(2)(A), money or property to the extent obtained by “false pretenses, a false
representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s
financial condition.” Establishing an exception to discharge based upon misrepresentation is
often stated to require the following elements: (1) The debtor made a representation; (2) at the
time of the representation, the debtor knew it to be false; (3) the debtor made the representation
with the intention and purpose of deceiving the creditor; (4) the creditor justifiably relied on the
representation; and (5) the creditor sustained the alleged loss and damage as a proximate result
of the representation having been made.9 The frauds included within misrepresentations
sufficient to deny discharge must “involve moral turpitude or intentional wrong; fraud implied in
law, which may be established without imputation of bad faith or immorality, is insufficient.”10
Fraudulent intent need not be shown by direct evidence and may be inferred from the
circumstances. “The bankruptcy court must consider whether the totality of the circumstances
‘presents a picture of deceptive conduct by the debtor which indicates intent to deceive the
9 See e.g. Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1373 (10th Cir. 1996) (stating five
elements but requiring that creditor's reliance be reasonable); Field v. Mans, 516 U.S. 59 (1995) (holding
that creditor reliance must be justifiable); In re Davis, 246 B.R. at 652.
10 4 Collier on Bankruptcy ¶ 523.08[d] (Alan N. Resnick & Henry J. Sommer eds.-in-chief,
15th ed. rev. 2008).
11 In re Davis, 246 B.R. at 652, quoting 3 William L. Norton, Jr., Norton Bankruptcy Law and
Practice 2d 47:16, n. 62 (1999).
Case 07-05338 Doc# 86 Filed 03/18/09 Page 8 of 15
The Court finds that Guinn has sustained his burden of proof under this subsection. As to
the first element, Guinn testified by deposition that Anderson represented that it would cost him
the full $10,000 to get out of jail, that he needed $10,000 to make sure that Guinn “didn’t run
from the courts.” Anderson denied Guinn’s statement. Anderson testified that Guinn offered the
payment in excess of the bond premiums and fees as an inducement or gift for getting Guinn and
his brother out of jail. The Court finds Anderson’s assertion not worthy of belief. There is no
evidence that Guinn understood that he was making a gift to Anderson. Guinn testified that
Anderson represented that he would return the excess payment. Guinn would not have asked for
the return of the excess money if he believed he had made a gift. The testimony of Guinn rather
than Anderson is consistent with the circumstances of the transaction. That Anderson
represented that payment of the full amount was required is supported by Anderson’s denial that
he represented to Guinn that he would refund the charges in excess of the bond costs after the
criminal case was concluded. Further, Anderson did not testify that the excess payment was
requested as collateral or for any other legitimate purpose. The Court finds that Anderson made
the representation that he needed the full $10,000 to post the appearance bonds, as alleged by
Guinn and rejects Anderson’s contention that Guinn gave Anderson the excess funds as a gift or
As to the second element, the Court finds that Anderson knew the representation that he
needed the full $10,000 payment was false when made. As a bail bondsman, Anderson knew
the cost of the bonds.
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As to the third element, the Court finds intent to deceive. Because intent to deceive is
rarely admitted, it “must be inferred by the totality of the circumstances of the case at hand.”12
Those circumstances include not only the conduct at the time of the representation, but also
subsequent conduct which provides an indication of debtor’s state of mind at the time of the
representation.13 In this case, intent to deceive is evidenced by several factors. First, neither
Anderson nor Guinn testified that Guinn was informed of the true costs of the bonds. Second,
Anderson did not testify that he requested the excess payment as collateral in the event the bond
was forfeited. Third, Anderson’s testimony that the excess payment was a gift or inducement
offered by Guinn is so incredible that the Court finds it to be an after the fact rationale to hide his
intent to deceive. Fourth, Anderson’s denial that he told Guinn he would return the excess
evidences that Anderson intended to acquire the excess funds for his own use and not to return
the money. Fifth, Anderson’s assertion, if true, that he did not know it was improper to take
money in excess of the premium and fees until he inquired following Guinn’s request for return
of the funds, does not refute the allegation that he obtained the funds by deceit. The intent to
deceive element of nondischargeability under § 524(a)(2)(A) is not concerned with knowledge of
the legal duties of the debtor; it focuses upon whether the debtor was deceptive in his dealings
with the creditor.
As to the fourth element, there is no question that Guinn justifiably relied upon
Anderson’s representation that he needed the full $10,000. From Guinn’s perspective, Anderson
was in a position of power. Anderson was a bail bondsman, and Guinn was incarcerated.
12 Chevy Chase Bank FSB v. Kukuk (In re Kukuk), 225 B.R. 778, 786 (10th Cir. BAP 1998).
13 In re Davis, 246 B.R. at 652.
Case 07-05338 Doc# 86 Filed 03/18/09 Page 10 of 15
Anderson was the only person Guinn contacted for procuring his and his brother’s release.
Guinn had no prior experience in being released after posting an appearance bond. There is no
evidence that he knew the cost of an appearance bond or even that a cash bond could have been
posted without the assistance of a bail bondsman. Further, Guinn understood that the funds not
needed to purchase the bonds would be returned if the bonds were not forfeited. Under the
circumstances of Guinn’s incarceration and Anderson’s business of a bail bondsman, Guinn’s
reliance on Anderson and payment of the full amount to Anderson was justifiable.
Finally, the record is clear that Guinn was damaged by his justifiable reliance on
Anderson’s misrepresentation. Five thousand eight hundred dollars of the overpayment has not
been paid by Anderson to Guinn.
For the foregoing reasons, the Court finds that the judgment is excepted from discharge
under § 523(a)(2)(A). Anderson falsely represented to Guinn that he needed the full $10,000 to
get Guinn and his brother out of jail; Anderson knew the representation was false when made;
Anderson made the representation with intent to deceive Guinn so he could acquire excess funds
for his own use; Guinn justifiably relied upon the representation; and Guinn suffered a loss.
C. Exception from Discharge under § 523(a)(4).
Guinn also asserts his claim is nondischargeable under § 524(a)(4), fraud while acting in
a fiduciary capacity, embezzlement, or larceny. The Court finds the fiduciary capacity portion of
§ 524(a)(4) is inapplicable in this case. The fiduciary capacity exception applies only where a
technical or express trust is recognized under state law.14 “An express or technical trust may be
created by an agreement that contains: (1) an explicit declaration by the parties of an intent to
14 McCreary v. Kichler (In re Kichler), 226 B.R. 910, 913 (Bankr. D. Kan. 1998).
Case 07-05338 Doc# 86 Filed 03/18/09 Page 11 of 15
create a trust; (2) specific and definite property or subject matter of the trust; and (3) acceptance
of the duties by the trustee.”15 The standard is strict, and a fiduciary relationship will not be
implied. Generally, the exception from discharge does not apply to frauds of agents, bailees,
brokers, and partners.16
Guinn has presented no evidence of an agreement with Anderson that could constitute a
trust relationship. Guinn has not cited and the Court has not found any statutes creating a
fiduciary relationship or cases holding there is a fiduciary relationship between a bondsman and
his principal. On the other hand, it has been held that the relationship between a bail bondsman
and the commercial surety company he represents is based upon contract, and fraud of the
bondsman relating to failure to indemnify the bonding company upon a bond forfeiture is not
excepted from discharge under § 524(a)(4).17 Likewise a bail bondsman’s debt to the state for
forfeiture amounts is not excepted from discharge.18 In face of this authority, the absence of any
case law finding a fiduciary relationship between bondsman and principal, and the absence of a
Kansas statute declaring such a relationship, the Court finds there was not a fiduciary
relationship between Guinn and Anderson.
However, Guinn has established the elements for exception from discharge under the
embezzlement portion of § 524(a)(4). “Embezzlement, for purposes of this section, is the
‘fraudulent appropriation of property of another by person to whom such property has been
16 4 Collier on Bankruptcy ¶ 523.10[d].
17 Pioneer Gen’l Ins. Co. v. Midkiff (In re Midiff), 86 B.R. 239, 241 (Bankr. D. Colo.1988).
18 Hickman v. Texas (In re Hickman), 260 F.3d 400 (5th Cir. 2001).
Case 07-05338 Doc# 86 Filed 03/18/09 Page 12 of 15
entrusted or into whose hands it has lawfully come.’”19 It has been said that the elements of
embezzlement are: “(1) appropriation of funds for the debtor’s own benefit by fraudulent intent
or deceit; (2) the deposit of the resulting funds in an account accessible only to the debtor; and
(3) the disbursal or use of those funds without explanation of reason or purpose.”20 “Fraudulent
appropriation requires ‘fraud in fact, involving moral turpitude or intentional wrong, rather than
implied or constructive fraud.’”21
In this case, the Court finds the evidence supports a finding of embezzlement. It is clear
that the excess payment came into Anderson’s hands with the consent of Guinn. It is equally
clear, as examined above, that Anderson obtained the funds in excess of the cost of the
appearance bonds for his own benefit by deceit. After payment by Guinn to Anderson, the funds
were not available to Guinn. Without explanation to Guinn, Anderson used the funds for his
The Kansas Supreme Court in somewhat similar circumstances found an insurance
agent’s multiple fraudulent overcharges of premiums for health and accident insurance to be
criminal acts of obtaining money under false pretenses.22 Defendant Aiken, while acting as a
representative of American Insurance Company, on five occasions misrepresented the premiums
on health and accident insurance, by, for example, charging an annual premium of $68.50, when
19 Belfry v. Cardozo (In re Belfry), 862 F. 2d 661, 662 (8th Cir. 1988), quoting In re Schultz, 46
B.R. 880, 889 (Bankr. D. Nev. 1985).
20 4 Collier on Banlruptcy ¶ 523.10.
21 In re Kichler, 226 B.R. at 914, quoting Driggs v. Black (In re Black), 787 F.2d 503, 507(10th
22 State v. Aiken, 174 Kan. 162, 254 P.2d 264 (1953).
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the true premium was $33.00. On appeal from his conviction, Aiken contended that
misrepresentation of price was not an element of obtaining money by false pretenses. The
Supreme Court rejected this argument finding that “a false representation made with intent to
cheat and defraud another by which money is obtained is a false pretense”23 for purpose of the
In this case, the Court finds that Anderson embezzled the excess payment he received
from Guinn, and Guinn’s claim is excepted from discharge under § 523(a)(4).
D. Exception from Discharge under § 523(a)(6).
The Court finds that the debt is not excepted from discharge under § 524(a)(6), willful
and malicious injury to property of another. That subsection provides a claim “for willful and
malicious injury by the debtor to another entity or to the property of another entity” shall be
excepted from discharge. Although fraud as a basis for nondischargeability is specifically
addressed by § 523(a)(2) and not by § 523(a)(6), the same fraudulent conduct may give rise to a
nondischargeability claim under both subsections.24 However, without proof of both a willful act
and malicious injury the objection to discharge under this subsection fails.25 The exception
covers “only acts done with the actual intent to cause injury.”26 In order to constitute a willful
act, the debtor must intend to cause the consequences of his act or believe that the consequences
23 Id, 174 Kan. at 165.
24 Ferris v. Stokes (In re Stokes), 995 F.2d 76 (5th Cir. 1993).
25 Panalis v. Moore (In re Moore), 357 F.3d 1125, 1129 (10th Cir. 2004).
26 Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998).
Case 07-05338 Doc# 86 Filed 03/18/09 Page 14 of 15
are substantially certain to follow.27 The malicious element requires proof that “the debtor either
intend the resulting injury or intentionally take action that is substantially certain to cause the
injury.”28 “[N]ondischargeability takes a deliberate or intentional injury, not merely a deliberate
or intentional act that leads to injury.”29 The exception generally applies to tort damages
resulting from intentional torts, such as assault and battery or intentional infliction of emotional
Therefore, as to the § 523(a)(6) claim, the question is whether Anderson’s conduct was
willful and malicious. The Court finds that Guinn has failed to establish these elements. There
is not sufficient evidence that Anderson acted with intent to cause harm to Guinn. Rather, the
evidence leads the Court to conclude that Anderson engaged in deliberate or intentional acts
which lead to injury but the injury was not deliberate and intentional. Anderson acted
deceitfully to benefit himself, but not with malice.
E. Amount Excepted from Discharge.
Next the Court must determine whether only the unpaid amount owed under the note, the
$5,800 outstanding on the obligation to return the excess payment, or the entire judgment,
including interest, attorney fees and costs, shall be excepted from discharge. The Court observes
that § 523(a)(2)(A) excepts from discharge any debt for money to the extent obtained by fraud
and § 523(a)(4) excepts from discharge any debt for embezzlement. As applied to this case, both
of these subsections limit the exception from discharge to the amount of the excess payment not
27 In re Moore, 357 F.3d at 1129, citing Mitsubishi Motors Credit of Amer., Inc. v. Longley (In re
Longley), 235 B.R. 651, 657 (10th Cir. BAP 1999).
28 Id., quoting Hope v. Walker (In re Walker), 48 F.3d 1161, 1164 (11th Cir. 1995).
29 Kawaauhau v. Geiger, 523 U.S. at 61.
Case 07-05338 Doc# 86 Filed 03/18/09 Page 15 of 15
already returned; the amount excepted from discharge is the amount owed obtained by fraud or
the amount embezzled. There is no allegation that the promissory note, which was the subject of
the judgment and which provided for interest, fees, and expenses, was colored by fraud. The
Court therefore holds that Guinn’s claim is excepted from discharge to the extent of $5,800, the
amount outstanding on Anderson’s agreement with Guinn to return the excess payment.
The Court holds $5,800 of the judgment, the amount owed by Anderson to Guinn
pursuant to the note under which Anderson promised to return the excess payment for the bonds
to Guinn, is nondischargeable under § 523(a)(2)(A) and § 523(a)(4). The interest, attorney fees,
and court costs included in the judgment are not excepted from discharge.
The foregoing constitute Findings of Fact and Conclusions of Law under Rule 7052 of
the Federal Rules of Bankruptcy Procedure which makes Rule 52(a) of the Federal Rules of
Civil Procedure applicable to this matter. A judgment based upon this ruling will be entered on a
separate document as required by Federal Rule of Bankruptcy Procedure 9021 and Federal Rule
of Civil Procedure 58.
IT IS SO ORDERED.
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