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| In re RAEJEAN BONHAM, aka Jean
Bonham, aka Jeannie Bonham, dba
World Plus,
Debtor(s) |
Case No. F95-00897-HAR In Chapter 7 ADV PROC NO F95-00897-006-HAR BANCAP No. 96-4048) ORDER DENYING MOTION FOR SUMMARY JUDGMENT [Airport Rentals, Inc.] |
| AIRPORT RENTALS, INC., Plaintiff(s) v. RAEJEAN BONHAM, aka Jean Bonham, aka Jeannie Bonham, dba World Plus, Defendant(s) |
Airport Rentals, Inc. filed a motion for summary judgment (Docket Entry 4). The motion does not advise the court on which count summary judgment is sought. It contains no declarations or evidentiary materials in support.
By referring to Airport Rentals' complaint on my own initiative, I see that there is a count to avoid Ms. Bonham's discharge under § 727(a) and the dischargeability of the specific debt to Airport Rentals under § 523(a)(2), (4), and (6). The court does not know whether the allegations are under 523(a)(2)(A) or 523(a)(2)(B). In her answer, Ms. Bonham denied the allegations under § 523(a).
The memorandum in support of the motion for summary judgment (Docket Entry 5) also does not even mention which count is involved. The argument is structured as if it sought a summary judgment under § 727(a) to avoid Ms. Bonham's discharge.
At a status conference I held on July 19, 1996, I entered a common order staying all § 727(a) counts in a number of cases. Airport Rentals concurred in this order, which was entered on July 24, 1995 (Docket Entry 14). I therefore presume that the motion concerns the § 523(a) count.
In an adversary proceeding brought by the petitioners in this
voluntary case, Rentschler, Yoder, and McCormick (Adversary -003), I
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denied a motion for summary judgment on the grounds that while Ms. Bonham
might hypothetically be a person who engages in fraud in connection with
her operation of World Plus, this does not establish the specific allegations of a § 523(a) action. No proof of the specifics of Airport
Rental's case was submitted -- for example, regarding the amount of the
investment, when it was made, what Ms. Bonham said or did, what reliance
Airport Rental put on it, etc.
Airport Rentals' reply and memorandum filed by Airport Rentals (Docket Entry 11) is of no more help.
FRCP 7056 and FRCivP 56(c) provides:
(c) Motion and Proceedings Thereon. . . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .
In its motion for summary judgment, plaintiff generally reiterates that the court determined that the debtor appeared to have been engaged in a Ponzi scheme, and that she had misused corporate funds. Airport has, however, shown no facts why its specific claim is nondischargeable. Airport has the intial burden of showing the facts supporting its entitlement to nondischargeability. Adickes v. Kress & Co., 398 US 144, 159, 90 SCt 1598, 1608, 26 LEd2d 142 (1970); Local No. 169, Association of Western Pulp And Paper Workers v ITT Rayonier, Inc., 971 F2d 347, 355 (9th Cir 1992); Luckett v Bethlehem Steel Corp., 618 F2d 1373, 1382 (10th Cir 1980); Earwood v Norfolk Southern Ry. Co., 845 FSupp 880, 883 (ND Ga 1993).
To show, for example, nondischargeability under § 523(a)(2)(A), it must show five elements: representation, knowledge of falsity, intention to deceive, justifiable reliance, and loss or damage. See, In re Kirsh, 973 F2d 1454, 1457 (9th Cir 1992). This has been recently refined and expanded upon by In re Eashai, ____ F3d _____ (9th Cir 1996). Airport does not discuss the elements of any of the § 523(a)(2), (4), or (6) counts or show how its facts satisfy each element.
Therefore, IT IS ORDERED that the motion for summary judgment (Docket Entry 4) is DENIED WITHOUT PREJUDICE.