NextGear Capital, Inc. v. MejoradoNextGear Capital, Inc. v. Mejorado
MEMORANDUM OPINION
NextGear Capital, Inc. (“NextGear“) sued Luis Mejorado (“Mejorado“) claiming that his debt to it should be declared nondischargeable pursuant to
FACTS
The Parties’ Agreement
Mejorado was the sole proprietor of Ace Auto Group, a car dealership. NextGear financed Mejorado‘s inventory purchases, initially allowing him to borrow up to $50,000, as the defendant‘s demand promissory note in NextGear‘s favor reflects (the “Note“).1 It later increased Mejorado‘s borrowing limit to $875,000. NextGear took a security interest2 in its lender-financed inventory and titles to those vehicles as well as a blanket security interest in “other collateral” Mejorado owned as described in the Note.3 Although Mejorado agreed to pay NextGear the sale proceeds of vehicles it had financed within twenty-four hours after he‘d received them, in practice, Mejorado usually sent NextGear its money within seven days.
NextGear‘s Title Release Program allowed Mejorado some flexibility with inventory it had financed. The program enabled Mejorado to take possession of vehicles subject to NextGear‘s lien and their certificates of title without simultaneously paying NextGear. If Mejorado did not sell a vehicle within seven days, the program required him to return the certificates of title to NextGear; but he agreed to send NextGear the money within twenty-four hours of any car he did sell during that seven-day period. If Mejorado failed to turn over the proceeds to NextGear timely, their agreement provided that he would immediately owe the lender the balance on the vehicle.
NextGear claims that it is still owed $67,470.40 for the Sierra and Tahoe.6 At trial Mejorado conceded that this amount was accurate. He testified that he never delivered the vehicles or their certificates of title to NextGear or paid it the sale proceeds, instead depositing them in his bank account and using the money for other purposes.
Mejorado also acquired the Range Rover through the Title Release Program for $99,000.7 The defendant testified that he signed a false buyer‘s order—a document itemizing the price of each item on the vehicle—reflecting that he owned the Range Rover, which in fact belonged to NextGear. He used the buyer‘s order to borrow $102,285.93 from American Eagle Credit Union,8 which secured its loan with a first lien on the car.9 Mejorado, on behalf of Ace Auto, then sold the Range Rover to himself: he transferred title to his name and deposited the sales proceeds (that is, American Eagle loan proceeds) in his business account. After using it for a few months, Mejorado traded the Range Rover to Gateway Buick GMC. The plaintiff‘s evidence was less than clear regarding the subsequent transactions associated with
Mejorado never revealed to NextGear that he‘d used its property, the Ranger Rover, for personal purposes; that he‘d traded the Range Rover for the GMC Sierra; or that he secured financing from American Eagle using inventory he‘d acquired with NextGear‘s money and that remained subject to its security interest. Instead, Mejorado used the proceeds of NextGear‘s collateral to pay his debts to other lenders, to make payroll for his car dealership and to satisfy other business overhead.13
NextGear also financed Mejorado‘s acquisition of a 2016 Cadillac Escalade (“Escalade“) for which he never paid. Mejorado sold the Escalade subject to NextGear‘s lien to a third party for $63,509.27 and used the sale proceeds to pay expenses and debts secured by other vehicles NextGear had not financed.14 NextGear claims it is owed $57,012.50 for the Escalade.15
Bankruptcy
§ 523(a)(2)(A)
NextGear claims that Mejorado‘s debt to it was one “for money, property, services, or an extension, renewal, or refinancing of credit” that was “obtained by false pretenses, a false representation, or actual fraud.” With respect to false representations and false pretenses, a creditor must prove that (1) the debtor made a representation; (2) the debtor knew the representation was false; (3) the debtor made the representation with the intention to deceive the creditor; (4) that the creditor actually and justifiably relied on such representations; and (5) that the creditor sustained losses as a proximate result of its reliance. In re Acosta, 406 F.3d at 372; RecoverEdge, L.P. v. Pentecost, 44 F.3d 1284, 1293 (5th Cir. 1995); McCoun v. Rea (In re Rea), 245 B.R. 77, 85 (Bankr. N.D. Tex. 2000). False representations and false pretenses within the meaning of
NextGear alleges that Mejorado committed fraud by borrowing money from it to buy vehicles he transferred to others or put to his personal use, all without repaying NextGear. It also contends that Mejorado made false representations every time he asked NextGear to extend credit to finance a vehicle
Although the evidence established the first and second elements of
A. The GMC Sierra and Chevrolet Tahoe
NextGear proved that every time Mejorado asked it to release the certificate of title for a vehicle NextGear financed, he represented that within seven days he would either: (1) pay NextGear the proceeds of the sale of the vehicle; or (2) return the vehicle‘s title to NextGear.17 Though Mejorado knew of his
Mejorado indeed breached his contractual undertaking to NextGear but the plaintiff failed to prove that the defendant acted with the intent necessary to render the debt nondischargeable. NextGear offered no evidence establishing that when he asked NextGear for their certificates of title, Mejorado did not intend to repay it or return the certificates of title should he fail to sell the vehicles. Mejorado‘s uncontradicted testimony was that he‘d previously remitted to NextGear the proceeds of sale of about seven hundred vehicles it had financed.20 This evidence supports a finding that when he made the representations to NextGear concerning the specific vehicles at issue in this lawsuit, Mejorado intended to repay NextGear timely and only afterward decided to divert the sale proceeds to other purposes.
Nor did NextGear justifiably rely on Mejorado‘s representations, the degree of reliance
NextGear and Mejorado had conducted business since 2013. During the course of their dealings, numerous “red flags” should have alerted NextGear that Mejorado was departing from the parties’
In sum, NextGear failed to meet its burden of proof under
B. The Range Rover
NextGear also failed to prove that Mejorado‘s debt for the Range Rover should be excepted from discharge under
The presence of “red flags” that should have put the creditor on notice is a defense to a
523(a)(4)
NextGear‘s claim that Mejorado‘s debt should be declared nondischargeable requires proof of a fiduciary relationship between the parties at the time the debt was created. Texas Lottery Commission v. Tran (In re Tran), 151 F.3d 339, 342-43 (5th Cir. 1998). But
NextGear argues that the Note and Security Agreement obligated Mejorado to hold and segregate for its benefit the specific sales proceeds from the sale of both the Title Vehicles and the Escalade, rather than simply an amount equal to the sale price. It points to paragraph 4(f) of the Note, which instructed Mejorado to hold all sales proceeds in trust for NextGear‘s sole benefit and to remit them to the lender within twenty-four (24) hours of receipt.34
NextGear also alleged that Mejorado embezzled NextGear‘s property. Embezzlement is “fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come.” Miller v. J.D. Abrams Incorporated (In re Miller), 156 F.3d 598, 602 (5th Cir. 1998). NextGear can establish embezzlement for purposes of
NextGear advanced funds it entrusted to Mejorado to buy inventory for his auto dealership, including in part the Title Vehicles and Escalade. Mejorado‘s testimony satisfies the first and second elements. Mejorado acquired the Range Rover for his personal use and used the proceeds from the sale of other vehicles subject to NextGear‘s lien to pay his dealership‘s expenses. However, Mejorado‘s testimony was insufficient to establish fraudulent intent, as the foregoing discussion of
523(a)(6)
Mejorado does not dispute the validity of NextGear‘s security interest in the vehicles and his knowledge of that security interest. Nor does Mejorado deny that: he acquired the Title Vehicles and the Escalade using funds he‘d borrowed from NextGear; acquired the Range Rover for his personal use without paying NextGear for the car; borrowed from American Eagle Credit Union using the Rover as collateral; and later traded the car to Gateway GMC to purchase a 2017 GMC Sierra.
The evidence established the substantial certainty that Mejorado‘s actions were likely to injure NextGear, even though Mejorado denies that he intended to injure NextGear. Mejorado knew of NextGear‘s security interest in the vehicles as well as his obligations to the plaintiff. He testified about his experience in the car sale business and admitted that he understood the use of floor plan financing to purchase vehicle inventory for resale. Undoubtedly, it was substantially certain that Mejorado‘s decision to use the proceeds of NextGear‘s collateral to pay personal and business expenses of his sole proprietorship and to acquire vehicles for his personal use would injure NextGear. Accordingly, his
Finally, NextGear successfully proved the amounts Mejorado owed for each of the Title Vehicles. NextGear‘s Receivable Detail Report reflects:
- (1) 2016 Chevrolet Tahoe: NextGear advanced $39,299.00 to Mejorado and the payoff is $38,684.60;
- (2) 2016 Cadillac Escalade: NextGear advanced $58,199.00 and the payoff is $57,012.50;
- (3) 2016 Land Rover: NextGear advanced $99,000 and the payoff is $96,761.31; and
- (4) 2015 GMC Sierra: NextGear advanced $27,665.00 and the payoff is $27,529.23.35
Mejorado at trial confirmed the accuracy of these amounts.36 Accordingly, $219,987.64 is nondischargeable under
Conclusion
NextGear failed to carry its burden of proving that Mejorado‘s obligation to it should be excepted from discharge on the basis on false representations or actual fraud within the meaning of
Counsel for NextGear should prepare and circulate among the parties a proposed judgment in accordance with this ruling, to be submitted to the court within fifteen days.