667 B.R. 171
Bankr. N.D. Ga.2025Background
- Plaintiffs Elijah and Korinne Robb entered into contracts with debtor Nathan Christopher Gividen, doing business as Southern Oaks Construction, for construction and staining work on their property.
- Plaintiffs allege Gividen misrepresented purchasing materials, failed to perform as contractually agreed, did not obtain necessary permits, and failed to refund monies after a breach.
- Plaintiffs commenced an adversary proceeding in Gividen's Chapter 7 bankruptcy, seeking to declare their claim non-dischargeable under various Bankruptcy Code sections, mostly for fraud and related misconduct.
- Defendant moved to dismiss the complaint for failure to state a claim and insufficient particularity, arguing the facts alleged only amount to breach of contract.
- No response to the motion to dismiss was filed by the pro se Plaintiffs.
- The Bankruptcy Court assessed whether Plaintiffs sufficiently pled claims under the cited bankruptcy code provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exception to discharge under § 523(a)(4) (fiduciary duty/embezzlement) | Debtor's conduct involved breach of trust or embezzlement | No fiduciary relationship; no embezzlement | Dismissed: No fiduciary relation or plausible embezzlement |
| Claims under §§ 547 and 548 (preferences/fraudulent transfers) | Debtor made fraudulent/preferential transfers | Only trustee has standing; no such transfers pled | Dismissed: Plaintiffs lack standing and did not allege facts |
| Denial of discharge under §§ 727(a)(3), (a)(4) (recordkeeping/fraudulent oath) | Debtor hid/destroyed/falsified records or false oath | No such facts alleged | Dismissed: Plaintiffs did not plead sufficient facts |
| Exception to discharge under § 523(a)(2)(A) (actual fraud) | Debtor obtained funds by knowingly false representations | No intent to defraud alleged, just breach of contract | Denied: Claim plausible; core issue is debtor's intent |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard for Rule 12(b)(6): allegations must raise right to relief above speculative level)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for stating a claim)
- Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171 (11th Cir. 1993) (dismissal appropriate on dispositive issue of law)
- Bank of Am. v. Seligman (In re Seligman), 478 B.R. 497 (Bankr. N.D. Ga. 2012) (facial plausibility standard in bankruptcy proceedings)
- First Nat’l Bank of Mobile v. Roddenberry, 701 F.2d 927 (11th Cir. 1983) (fraud under § 523(a)(2)(A) requires intent to mislead or trick)