Professional Documents
Culture Documents
No. 16-9006
IN RE JOSEPH M. CURRAN,
Debtor.
____________________
CAROLYN PRIVITERA,
Plaintiff, Appellant,
v.
JOSEPH M. CURRAN,
Defendant, Appellee.
Before
v. Becnel (In re Bandi), 683 F.3d 671, 676 (5th Cir. 2012), and
Cadwell v. Joelson (In re Joelson), 427 F.3d 700, 714 (10th Cir.
& Cofrin, LLP (In re Appling), 848 F.3d 953, 960 (11th Cir. 2017)
and Engler v. Van Steinburg (In re Van Steinburg), 744 F.2d 1060,
1061 (4th Cir. 1984) (employing broad approach). But courts should
see no need to enter onto terra incognita but, rather, decide the
I. BACKGROUND
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incurred. Grogan v. Garner, 498 U.S. 279, 283 (1991); Harrington
v. Simmons (In re Simmons), 810 F.3d 852, 855 (1st Cir. 2016).
Crawford), 841 F.3d 1, 7 (1st Cir. 2016) (quoting Grogan, 498 U.S.
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(the List), comprising property "belonging" to him "either by title
The plaintiff's attorney made only minor changes to the List before
trucks. The purchase price of each item was listed beside the
cost of the remaining items was slightly over $22,000. With the
trucks, the total cost of all the items ballooned to more than
further provided that the debtor would record and file all
behalf.
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The Agreement was executed in November of 2007, and the
and neither the plaintiff nor the debtor took any steps to perfect
defaulting in 2012.
costs). Later that year, the debtor without making any payment
11 U.S.C. 701-784.
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The debtor answered the complaint and then moved to
At the same time, the court denied the plaintiff's motion to amend
any case."
Appellate Panel for the First Circuit (the BAP). Because the
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See Fed. R. Bankr. P. 7012(b) (incorporating Federal Rule of Civil
show that the List was materially false. See Privitera v. Curran
(In re Curran), 554 B.R. 272, 282-83 (B.A.P. 1st Cir. 2016). At
the same time, the BAP affirmed the denial of the plaintiff's
followed.
II. ANALYSIS
In this circuit, appeals in bankruptcy cases proceed
may take his initial appeal either to the district court or to the
tribunal (be it the district court or the BAP) and focus instead
on the bankruptcy court's decision. See Wheeling & Lake Erie Ry.
Co. v. Keach (In re Montreal, Me. & Atl. Ry., Ltd.), 799 F.3d 1,
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Here, the plaintiff's challenge is twofold. First, she
assertions sequentially.
See Fed. R. Bankr. P. 7012; see also Rok Builders, LLC v. 2010-1
SFG Venture LLC (In re Moultonborough Hotel Grp., LLC), 726 F.3d
Auth., 682 F.3d 40, 44 (1st Cir. 2012)). Regardless of the label,
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In order to survive dismissal, a complaint need not set
550 U.S. 544, 555 (2007), but it must "contain sufficient factual
a motion to dismiss. SEC v. Tambone, 597 F.3d 436, 442 (1st Cir.
Colonial Mortg. Bankers Corp.), 324 F.3d 12, 15 (1st Cir. 2003)
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assume, for argument's sake, that the List constitutes a statement
Furio (In re Furio), 77 F.3d 622, 625 (2d Cir. 1996) (citation
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information must have been obligated to furnish it. See id.
(collecting cases).
the debtor gave her exactly what she had requested: a list of items
the purchase price) of each of the items. The plaintiff does not
claim that the substance of the List was in any way untrue, nor
enumerated items.
rests on a claim that it is what the debtor did not say that
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the complaint contains no facts indicating that the debtor was
items. In this respect, the Agreement states that the debtor would
F.3d 917, 920 & n.4 (10th Cir. 2004) (interpreting promise that
to secure the loan fully. Without such a promise, the debtor may
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whatever equity he had in any encumbered property,2 was sufficient
required.
Bos. Hotel Venture, LLC), 748 F.3d 393, 398 (1st Cir. 2014);
897 F.2d 611, 613 (1st Cir. 1990). In the absence of facts
traction.
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Striving to blunt the force of this reasoning, the
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Comm., 669 F.3d 50, 55 (1st Cir. 2012). The section 523(a)(2)(B)
15(a)(2).
Cir. 2006) (observing that courts need not "mindlessly grant every
request for leave to amend"). A court may deny leave to amend for
4
In a last-ditch attempt to snatch victory from the jaws of
defeat, the plaintiff invokes the tenet that a party to a
transaction must disclose "matters known to him that he knows to
be necessary to prevent his partial or ambiguous statement of the
facts from being misleading." Restatement (Second) of Torts
551(2)(b). No argument premised on section 551(2)(b) was raised
below and arguments advanced for the first time on appeal are
deemed waived. See B&T Masonry Constr. Co. v. Pub. Serv. Mutual
Ins. Co., 382 F.3d 36, 40 (1st Cir. 2004); see also Teamsters,
Chauffeurs, Warehousemen & Helpers Union v. Superline Transp. Co.,
953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is settled in
this circuit, it is that, absent the most extraordinary
circumstances, legal theories not raised squarely in the lower
court cannot be broached for the first time on appeal.").
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a variety of reasons, including "futility, bad faith, undue delay,
Children, Youth & Their Families, 274 F.3d 12, 19 (1st Cir. 2001).
a plausible claim for relief. See id.; see also Tambone, 597 F.3d
at 442.
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obtained the loan through either false pretenses or a false
Sharfarz v. Goguen (In re Goguen), 691 F.3d 62, 66 (1st Cir. 2012)
Levasseur), 737 F.3d 814, 818 (1st Cir. 2013) (citation omitted).
facts that the debtor knew to be untrue. The debtor was never
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Bos. Hotel Venture, 748 F.3d at 398; Harley-Davidson, 897 F.2d at
claim fails for much the same reason that her section 523(a)(2)(B)
claim fails: she has not pleaded facts sufficient to make out a
claim, insisting that because the debtor did not tell her about
misleading. These facts did not bear the weight of her section
523(a)(2)(B) claim, and they are likewise too flimsy to bear the
used in the course of his business and their cost when he purchased
them.
did the BAP, that an adequate basis existed for the bankruptcy
like the old claim, would have been futile. It follows that the
bankruptcy court did not abuse its discretion in denying the motion
III. CONCLUSION
the judgment is
Affirmed.
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