Menu   5 ABR 122

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ALASKA

In re SANJAY TALWAR, and MOLINA TALWAR,

                              Debtors

Case No. A96-00898-HAR

Chapter 7
LATHA SUBRAMANIAN,

                              Plaintiff

v.

SANJAY TALWAR, and LARRY D. COMPTON, in his official capacity as Trustee,

                              Defendant

 ADV PROC NO A96-00898-001-HAR

(BANCAP No. 97-3004)

[Consolidated For Trial]

LATHA SUBRAMANIAN,

                              Plaintiff

v.

SANJAY TALWAR,

                              Defendant

 ADV PROC NO A96-00898-002-HAR

(BANCAP No. 97-3005)


MEMORANDUM DECISION DENYING PLAINTIFF'S MOTION FOR AMENDMENT OF JUDGMENT OR FOR RELIEF FROM JUDGMENT


1. BASIS OF MOTION- Latha Subramanian filed Plaintiff's Motion For Amendment Of Judgment Or For Relief From Judgment on December 15, 1997 (Docket Entry 56). The motion asks the court to revise its findings regarding failure to grant emotional damages and damages for lost rent. I will deny the motion on both counts and enter a separate order.

2. EMOTIONAL DAMAGES- The claim for emotional damages is based on 11 USC § 523(a)(6). In reviewing my notes and memory of the trial, I 5 ABR 123   TOP   cannot say that Sanjay Talwar acted "maliciously" as that term is used in § 523(a)(6). In the recent case of In re Bammer, ____ F3d ____, 1997 WL 728480 (9th Cir 1997), the court analyzed the "malicious" element. The court said:

The law of our circuit defines a "malicious" injury as one involving (1) a wrongful act, (2) "done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse." In re Cecchini, 780 F.2d 1440, 1443 (9th Cir.1986) (emphasis added). This four-part definition does not require a showing of biblical malice, i.e., personal hatred, spite, or ill-will. Id. at 1442-43. Nor does it require a showing of an intent to injure, but rather it requires only an intentional act which causes injury. Id. Moreover, we held in In re Britton, 950 F.2d 602, 606 (9th Cir.1991) that a court applying this test must take into consideration a policy that favors the victims of fraud over the perpetrators.

Although Sanjay may have played on Latha's emotions and been a cad, his actions do not seem so outrageous, evil, fraudulent, or "malicious" as to warrant nondischargeability under § 523(a)(6). See, 4 Collier on Bankruptcy, ¶¶ 523.12[ 1-2] (Matthew Bender 15th Ed Rev 1997).

3. RENTAL DAMAGES- I also decline to modify the findings regarding denial of rental damages. At the time Latha purchased the 4-plex with Sanjay, she knew he was married, although he may have indicated that the marriage was in name only. I was, however, somewhat skeptical of Latha's testimony that during the fifty-five months that Sanjay lived in the apartment of which Latha was half owner on the title, she was at no time aware that Molina was living there also.

Latha was in constant contact with Sanjay. She called him often and went over to the apartment, presumably not going in at all or at least not when Molina was there according to her testimony. One can infer that she would have 5 ABR 124   TOP   had to be very unobservant, indeed, to not notice that Molina was around.

There appeared to be a tightknit Indian community in Anchorage. Latha worked as a physician in a clinic with another physician who was Sanjay's brother-in-law. This belies the claim that Latha was totally ignorant of Molina's presence.

The importance of this testimony to Latha's claim for rental damages is in the reasonable inferences to be drawn about the nature of any representations Sanjay made (verbally or by his actions) and whether she justifiably relied on them. 11 USC § 523(a)(2)(A) depends on a misrepresentation on which the claimant justifiably relied. See, In re Kirsh, 973 F2d 1454, 1457-60 (9th Cir 1992), discussing justifiable reliance under § 523(a)(2)(A).

Given the lack of testimony about a specific misrepresentation vis-a-vis the occupancy of the apartment, especially one that the court believes was accepted at face value by Latha, the case for nondischargeability of the rental damages under § 523(a)(2)(A) is rather weak.

Also, the evidence regarding the rental damages was not clear to me and I therefore denied recovery. For example, there were only several brief tables with little explanation regarding the calculation of damages. The testimony was cursory. Latha argued that Sanjay did not do a good job, but it is also true that Sanjay did act as a manager for the 4-plex for over four years. In any event, even if the damages were proven, they are dischargeable given the court's doubts about the nature of the misrepresentation and Latha's justifiable reliance.

5 ABR 125   TOP   In my findings, at ¶ 3.2, I found: "Unbeknownst to Latha, he moved Molina in too. Latha found out in about November 1993, and became irate." I was merely repeating Latha's contentions, and perhaps should have identified my skepticism at that point. Since I had determined to rule against damages related to Sanjay's occupancy and management of the 4-plex, I did not accurately put down my finding about whether Latha knew about Molina or not. In the present memorandum, I more accurately set out my view of the evidence, or what I found.

    DATED:    December 16, 1997

              HERBERT A. ROSS
              Bankruptcy Judge