In re Freeman

16 Citing cases

  1. In re Taylor

    58 B.R. 849 (Bankr. E.D. Va. 1986)   Cited 53 times
    Holding that co-owner who sold horse and kept other co-owner's share of proceeds was guilty of embezzlement within meaning of Sec. 523

    Even though the debtor may have had pressing needs for the money, the usual exigencies of business are not the type of "circumstances or conditions beyond the control" of the debtor that would negate the inference of an intent to deprive Clark of his property. Clark cites In re Freeman, 30 B.R. 704 (Bankr.W.D.La. 1983) as additional support for the notion that the debtor had an affirmative duty to remit $5,000.00 of the proceeds of the package sale to him.

  2. Lento v. Marshall (In re Marshall)

    497 B.R. 3 (Bankr. D. Mass. 2013)   Cited 6 times

    Such a duty is usually set forth in the parties' consignment agreement, and even if the parties do not โ€œadhere rigidlyโ€ to the agreed procedure, it is enough that the debtor knows that he has an affirmative duty at some time to remit funds to a certain creditor.See Hall v. Blanton (In re Blanton), 149 B.R. 393, 394 (Bankr.E.D.Va.1992); Moonan v. Bevilacqua (In re Bevilacqua), 53 B.R. 331, 334 (Bankr.S.D.N.Y.1985); Chrysler Credit Corporation v. Freeman (In re Freeman), 30 B.R. 704, 708 (Bankr.W.D.La.1983); Applegate v. Shuler (In re Shuler), 20 B.R. 163 (Bankr.D.Idaho 1982). A debtor's use of proceeds for business debts and continued business operations is no defense to embezzlement.

  3. In re Hoffman

    70 B.R. 155 (Bankr. W.D. Ark. 1986)   Cited 66 times
    Concluding that the debtor's "use of proceeds for business debts and continued farm operations is no defense to proof of embezzlement under 11 U.S.C. ยง 523."

    The failure of NBC to strictly adhere to the sale procedures of the security agreement did not relieve the debtor of his duty to remit sale proceeds to NBC. In re Freeman, 30 B.R. 704, 708 (Bkrtcy.W.D.La. 1983). Second, unlike the decision of In re Long, 774 F.2d at 875, interpreting 11 U.S.C. ยง 523(a)(6), Hoffman's use of the proceeds for business debts and continued farm operations is no defense to proof of embezzlement under 11 U.S.C. ยง 523(a)(4).

  4. First National Bank of Commerce v. Dove (In re Dove)

    78 B.R. 630 (Bankr. M.D. Ga. 1986)   Cited 9 times

    Unless the parties intended a trust, defined a trust res, and gave specific duties regarding the trust funds or unless a statute imposes a trust, the fiduciary relationship contemplated in section 523(a)(4) does not extend to financing arrangements or security agreements. Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir. 1980); Chrysler Credit Corp. v. Freeman (In re Freeman), 30 B.R. 704 (Bankr.W.D.La. 1983). The language of the promissory note Defendant signed for Rhythm Village, Inc., in his capacity as president, did not impose such a trust on Defendant, and there is no statutory trust that imposes a fiduciary relationship upon Defendant under the facts presented at trial.

  5. In re James

    42 B.R. 265 (Bankr. W.D. Ky. 1984)   Cited 41 times

    See also 11 U.S.C. ยง 523(c) (a creditor must request a dischargeability determination by a federal bankruptcy court, of subsection 4 type debts or they will be discharged).Moore v. United States, 160 U.S. 268, 16 S.Ct. 294, 40 L.Ed.2d 422 (1895); See also In re Freeman, 30 B.R. 704 (Bkrtcy.W.D.La. 1982); In re Crook, 13 B.R. 794 (Bkrtcy.Me. 1981). On July 22, 1977 the debtor, Bill James, a real estate broker, and the plaintiff in this action, a partnership between David Bailey and William Grissom, known as Bailey and Grissom Real Estate Brokers, entered into a contract with the heirs of the Andy Garvin Estate to sell, at public auction, the Beech Bend Amusement Park and surrounding acreage near Bowling Green, Kentucky.

  6. Auction Credit Enters. v. DeSouza (In re DeSouza)

    659 B.R. 288 (Bankr. E.D. Tex. 2024)   Cited 4 times

    In support Plaintiff relies on several cases finding embezzlement to exist because of trust obligations in auto dealer inventory financing agreements. See, e.g., In re Blanton, 149 B.R. 393, 394-95 (Bankr. E.D. Va. 1992) (sale of consigned automobiles and misappropriation of proceeds constituted embezzlement); see also In re Rebhan, 45 B.R. 609, 614 (Bankr. S.D. Fla. 1985) (sale of vehicles subject to floor plan agreement with creditor and misappropriation of proceeds was embezzlement), aff'd sub nom., Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257 (11th Cir. 1988); see also In re Freeman, 30 B.R. 704, 708 (Bankr. W.D. La. 1983) (sale of vehicles subject to floor plan agreement ruled to be embezzlement); see also In re Marinko, 148 B.R. 846, 850-51 (Bankr. N.D. Ohio 1992) (sale of floor plan vehicles out of trust constituted embezzlement).

  7. Johnson v. Steen (In re Steen)

    626 B.R. 469 (Bankr. N.D. Tex. 2021)

    Though the Court concludes that embezzlement cannot arise from the facts here, it notes that some courts have found that the conversion of proceeds that are subject of a creditor's perfected security interest may constitute embezzlement. SeeJones v. Hall (In re Hall) , 295 B.R. 877, 882 (Bankr. W.D. Ark. 2003) ; Universal Pontiac-Buick-GMC Truck Inc. v. Routson (In re Routson) , 160 B.R. 595, 610โ€“11 (Bankr. D. Minn. 1993) (debtor's sale of vehicles subject to floor plan agreement with creditor was embezzlement); In re Harrell , 94 B.R. 86, 91 (Bankr. W.D. Tex. 1988) (determining that the debtor had appropriated the creditor's property "by failing to immediately and directly remit" the sales proceeds to creditor); In re Beasley , 62 B.R. 653, 655 (Bankr. W.D. Mo. 1986) (sale of grain subject to a perfected security interest constituted embezzlement); Chrysler Credit Corp. v. Freeman (In re Freeman) , 30 B.R. 704, 708 (Bankr. W.D. La. 1983) (sale of vehicles subject to floor plan agreement ruled to be embezzlement). Conclusion

  8. Deghmane v. Tavitian (In re Tavitian)

    Case No. 16-13829-JNF (Bankr. D. Mass. Jun. 19, 2018)   Cited 1 times

    In re Marshall, 497 B.R. at 14 (citing Hall v. Blanton (In re Blanton), 149 B.R. 393, 394 (Bankr. E.D. Va. 1992); Moonan v. Bevilacqua (In re Bevilacqua), 53 B.R. 331, 334 (Bankr. S.D.N.Y. 1985); Chrysler Credit Corporation v. Freeman (In re Freeman), 30 B.R. 704, 708 (Bankr.W.D.La.1983); Applegate v. Shuler (In re Shuler), 20 B.R. 163 (Bankr. D. Idaho 1982)). D. Section 523(a)(6)

  9. NYU Hosp. Ctr. v. HRH Constr. LLC (In re HRH Constr. LLC)

    Case No. 09-23665 (RDD) (Bankr. S.D.N.Y. Aug. 2, 2011)

    See S.E.C. v. Tambone, 597 F.3d 436, 450 (1st Cir. 2010) ("A party cannot switch horses mid-stream, changing its theory of liability at a later stage of the litigation in hopes of securing a swifter steed."); Armstrong Cork Co. v. Lyons, 366 F.2d 206, 209 n.3 (8th Cir. 1966) ("The plaintiff in his proof must ordinarily be confined to the cause of action set forth in his declaration or complaint, and must recover, if at all, on the case made therein."); Auguste v. Dep't of Corrections, 424 F. Supp. 2d 363, 368 (D. Conn. 2006) (declining to consider claims raised in memorandum response to motion for summary judgment, but not raised in original complaint). See also Opals on Ice Lingerie v. Bodylines, Inc., No. 99 CV 3761, 2002 WL 718850, at *4, 2002 U.S. Dist. LEXIS 10738, at *13-14 (E.D.N.Y. Mar. 4, 2002); Beckman v. U.S. Postal Service, 79 F. Supp. 2d 394, 408-10 (S.D.N.Y. 2000); Dir. Gen. of India Supply Mission v. S.S. Janet Quinn, 335 F. Supp. 1329, 1338 (S.D.N.Y. 1971); In re Freeman, 30 B.R. 704, 706-07 (Bankr. W.D. La. 1983).

  10. In re Hall

    CASE NO. 6:02-bk-70062M, AP NO. 6:02-ap-7090 (Bankr. W.D. Ark. Jul. 24, 2003)   Cited 24 times
    Concluding that a secured creditor's collateral may be embezzled for purposes of ยง 523

    Many courts hold that a debtor commits an embezzlement under section 523(a)(4) when the debtor sells mortgaged property and fails to remit the proceeds to a properly perfected, secured creditor or consignor. See, e.g., In re Blanton, 149 B.R. 393, 394-95 (Bankr.E.D.Va. 1992) (sale of consigned automobiles and misappropriation of proceeds constituted embezzlement); In re Rebhan, 45 B.R. 609, 614 (Bankr.S.D.Fla. 1985) (sale of vehicles subject to floor plan agreement with creditor and misappropriation of proceeds was embezzlement), aff'd sub nom. Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257 (11th Cir. 1988); In re Freeman, 30 B.R. 704, 708 (Bankr.W.D.La. 1983) (sale of vehicles subject to floor plan agreement ruled to be embezzlement); In re Beasly, 62 B.R. 653, 655 (Bankr. W.D. Mo. 1986) (sale of grain subject to a perfected security interest constituted embezzlement); In re Routson, 160 B.R. 595, 611 (Bankr.D.Minn. 1993) (debtor's sale of vehicles subject to floor plan agreement with creditor was embezzlement); In re Marinko, 148 B.R. 846, 850-51 (Bankr.N.D.Ohio 1992) (sale of floor plan vehicles out of trust constituted embezzlement).