In the Matter of: JAYME DAVIS SELL and ANDRA LYNNE SELL, Debtors. CHRISTINA D’SAACHS, Plaintiff, vs. JAYME DAVIS SELL and ANDRA LYNNE SELL, Defendants.
Case No. BK 25-80501; Case No. AP 25-8010
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF NEBRASKA
July 7, 2026
Brian S. Kruse, Chief Bankruptcy Judge
Chapter 7
The plaintiff Christina D’Saachs moves to amend the findings of fact and conclusions of law in the court’s order partially excepting the defendant’s debt from discharge (Doc. #93). The motion is denied to the extent it requests the court amend the judgment. The motion identifies no manifest error of law or fact. It simply reargues positions already considered and rejected. To the extent necessary, the following opinion supplements and further clarifies the underlying opinion.
Standard of Review
After a judgment is entered a party may ask a court to “amend its findings – or make additional findings – and may amend the judgment accordingly.”
Lincoln Provision, Inc. v. Aron Puretz, PMP, LLC, 2013 WL 6283736, at *2 (D. Neb. Dec. 4, 2013) (citations omitted). “Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment.” United States v. Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006).
Conclusions of Law
“Debt Free” as Financial Condition
The plaintiff argues the defendant’s statement he wanted to be “debt free” was treated solely as a statement respecting his financial condition. The argument overlooks that the order makes multiple independent holdings regarding the defendant’s “debt free” statement. The financial condition holding was included because the plaintiff invited it in her original post-trial brief.
In her original brief the plaintiff argued the debtor’s statement he wanted to become “debt free” was a false pretense because the defendant had other undisclosed loans and because the plaintiff’s loan would not satisfy all the defendant’s actual indebtedness. The argument failed because the statement, as the plaintiff argued it, concerns the defendant’s financial condition – the nature and extent of his other existing debt. As a representation about the defendant’s existing debts, the statement relates directly to his overall financial status. The plaintiff’s claim under this theory is barred because the plaintiff did not plead a claim regarding financial condition under
Future Commercial Debt
The plaintiff next argues she viewed the “debt free” and other representations as implying the defendant “wanted to stop incurring debt and did not want to have any commercial loans in the future.” This argument was also addressed and rejected.
I’m just trying to consolidate everything into 1 payment to allow me to make double the payments and literally be debt free.
As originally noted, the representation, as pled, is true. It is also not actionable construed as a statement regarding future borrowings. The United States Supreme Court directs we look to common law to determine whether a statement is actionable.
The operative terms in
§ 523(a)(2)(A) , on the other hand, “false pretenses, a false representation, or actual fraud,” carry the acquired meaning of terms of art. They are common-law terms, and, as we will shortly see in the case of “actual fraud,” which concerns us here, they imply elements that the common law has defined them to include.
Field v. Mans, 516 U.S. 59, 69, 116 S. Ct. 437, 443, 133 L. Ed. 2d 351 (1995). The common law distinguishes between factual statements and non-factual statements.
A factual claim is a statement that (1) admits of being adjudged true or false in a way that (2) admits of empirical verification. To be actionable, the statement must be a “specific and measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact.…
Puffery and statements of fact are mutually exclusive. If a statement is a specific, measurable claim or can be reasonably interpreted as being a factual claim, i.e., one capable of verification, the statement is
one of fact. Conversely, if the statement is not specific and measurable, and cannot be reasonably interpreted as providing a benchmark by which the veracity of the statement can be ascertained, the statement constitutes puffery.
American Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387, 391 (8th Cir. 2004) (construing the Lanham Act); see, e.g., Vogel v. E.D. Bullard Co., 597 F. App’x 817, 825 (6th Cir. 2014) (holding statements the defendants would help the plaintiff become “debt free” were not actionable).
The defendant stated he wanted to consolidate his loans at a lower rate to make larger payments, which would allow him to become debt free. Taken literally, this statement can be adjudged true or false. And as already held, it is a true statement. A consolidation loan at a lower rate would allow the defendant to service and retire his existing debt faster than separate high-interest loans.
In addition, the statement does not amount to a representation the defendant would never again borrow from commercial lenders. Neither do other contemporaneous statements, which include, without limitation: the defendant wanted to build a life with the plaintiff; debt caused him stress; and he wanted to pay the plaintiff “instead of these schmucks.” These are expressions of sentiment and desire. They are not representations of complete abstention from future commercial borrowing.1 The evidence supports the defendant did not represent he would forbear from borrowing money from a commercial lender in the short term or the long term. Likewise, the parties’ written loan agreement contains no covenant not to borrow.
The plaintiff argues she testified the defendant specifically represented he would not take out other commercial loans and that this testimony was not contradicted. But her actual testimony was much more generic and lacked meaningful details essential to proving fraud. The plaintiff’s actual testimony, including the specific testimony referenced in her brief, was she inferred the defendant’s statements to be a representation the defendant would not take out additional commercial loans. When she testified, the
When you were agreeing to this loan with him in September of 2022, was that kind of the premise that you had that um uh that he was going to try to become better financially and not get caught up with all these commercial loans that were stressing him out?
And:
Is [taking additional loans] that something that you believe um was either falsely indicated to you or actually represented to you that he was um ah not going to engage with these, eh take out these significant loans with commercial lenders anymore?
This is not testimony the defendant falsely represented, “If you loan me money, I will never again borrow from commercial lenders”, on a specific date, time, and place. The statements are merely the plaintiff’s interpretation of what she believed the defendant’s future intent to be. Her interpretation is not actionable. The court weighed the evidence and considered the totality of the parties’ testimony. The plaintiff’s testimony and the defendant’s statements about commercial lenders and borrowing do not, individually or collectively, support the plaintiff’s claim under
Even if the defendant had represented he would not borrow additional money from commercial lenders, the court already weighed the evidence and found the plaintiff’s claim fails because the statement was not false. The evidence the plaintiff marshals now and marshalled originally is the defendant’s subsequent borrowing. But subsequent borrowing does not, without more, establish that on September 22, 2022, the defendant had already formed and concealed an intent to keep borrowing. A promise of future performance is fraudulent under
It is not enough that for any reason, good or bad, the speaker changes his mind and fails or refuses to carry his expressed intention into effect. Whether the facts and circumstances justify a conclusion that a defendant knows a representation is false when made is ordinarily a question for the jury. Intent not to perform cannot be shown solely by nonperformance, it must be shown by other evidence.
The plaintiff cites 6050 Grant, LLC, v. Hanson (In re Hanson), 437 B.R. 322, 327–28 (Bankr. N.D. Ill. 2010), for the proposition that conduct after a loan may evidence the defendant’s state of mind when the loan was obtained. But the defendant’s conduct, viewed in its totality, is consistent with and supports the defendant intended to perform all obligations when he borrowed money from the plaintiff, and did not harbor a secret intent to borrow more. He was employed. He set up wage withholding. He did not cancel it. He repaid $3,471.02 by January 2, 2023. He only stopped performing because he lost his job, which he did not expect.
The plaintiff concedes the relevant inquiry is the defendant’s intent on September 22, 2022. The order resolved that inquiry against her on the original loan. The plaintiff’s motion offers no new evidence and no error; it only offers competing inferences from the record.
Wage Withholding
The plaintiff asserts error in the factual finding that the defendant voluntarily set up wage withholding because the parties’ written loan agreement required direct deposit. The finding is accurate. But it does not carry the weight the plaintiff assigns it. The defendant’s intent to perform is based on multiple independent reasons. Again, the defendant was employed. He made payments for several months. He repaid $3,471.02 by January 2, 2023. The payments stopped only because he lost his job.
The finding the defendant set up the withholding simply addressed the plaintiff’s argument that the payments were involuntary. But the payments were voluntary. The defendant both set up the withholding and did not terminate the withholding after the loan was funded, even though he could have. Whether the agreement required direct deposit does not change that
Conclusion
The plaintiff’s motion is denied to the extent it seeks to reverse any findings of fact or conclusions of law. It identifies no manifest error of law or fact. It simply reargues findings the court already made.
Dated: July 7, 2026
BY THE COURT:
/s/ Brian S. Kruse
Brian S. Kruse
Chief Bankruptcy Judge