MEMORANDUM AND ORDER
Julian Salim ("Salim” or “appellant”) brings this appeal from the March 16, 2015 Memorandum Decision of Judge Elizabeth S. Stong of the Bankruptcy Court for the Eastern District of New York, which granted partial summary judgment to VW Credit, Inc. (“VCI” or “appellee”). For the reasons set forth below, the court DENIES appellant’s appeal, and AFFIRMS the Bankruptcy Court’s decision in its entirety.
BACKGROUND
The facts giving rise to this dispute are not contested by either party.
Big Apple Volkswagen, LLC, (“Big Apple”) is a car dealership in the Bronx, New York. Appellant was a managing member and a part owner with John Koeppel and Gzregorz Samborski of Big Apple.
I. The Loan Agreements
VCI provided Big Apple with a loan to enable Big Apple to purchase an inventory of motor vehicles, and provided Big Apple with a working capital line of credit in the form of promissory notes, executed on June 12, 2006, and March 19,-2007, respectively.
On June 12, 2006, Big Apple executed a promissory note, in the amount of $3,347,500.00, and a master security agreement (collectively, “Wholesale Loan Agreement”). (ECF No. 7, Appellee Opp. Br. at 4; Adv. Proc. No. 24, Jeffrey-Alexander Aff. ¶ 9.) Under the terms of the Wholesale Loan Agreement, upon the sale or lease of any vehicle, Big Apple was obligated to, inter alia, remit to VCI all sums owing from VCI’s advance on the vehicle. (Adv. Proc, No. 24, Jeffrey-Alexander Aff. Ex. 1, Master Sec. Agmt. at 1.) Big Apple also agreed to repay VCI the total amount outstanding under the note, in the event of a default. (Id; at 4.) On March 19, 2007, Big Apple executed a second promissory note, in the amount of $250,000.00, and a master security agreement (collectively, “Capital Loan Agreement”). (Adv. Proc. No. 24, Jeffrey-Alexander Aff. ¶ 13.) Pursuant to the terms of the Capital Loan Agreement, Big Apple agreed to repay the sums owing, with interest, at a schedule specified therein. (Id. ¶ 14.)
Under the terms of both loan agreements, Big Apple granted to VCI a security interest in Big Apple’s inventory of vehicles, chattels, and proceeds. (Adv. Proc. No. 24, Jeffrey-Alexander Aff. .Ex. 1, Master Sec. Agmt. at 2; id. Ex. 2, Sec. Agmt. and Capital Loan Agmt. at 2.) The two loan agreements were cross-defaulted,
Appellant claims to have borrowed $300,000.00 from Salim’s mother, which he states was used to provide initial funding for Big Apple. (ECF No. 5, Appellant Br. at 6.) A letter loan agreement, “effective June 1, 2006,” reflects that Big Apple and appellant would make annual payments to Salim’s mother, with the loan to be paid in full by April 1, 2011. (Adv. Proc. No. 23, Little Deck at 1118.) Appellant testified that he believed the loan from his mother was a secured debt, noticed with a UCC financing statement, but could not explain why the UCC financing statement was filed two years after the purported loan from his mother. (Adv. Proc. No. 23, Little Decl. Ex. 18, Julian Salim Dep. at 39-40; Adv. Proc. No. 23, Little Deck at 1124.)
II. VCI’s Interest and Audit
On March 11, 2011, upon learning that Big Apple was four months past due on a mutual vendor’s account, VCI sought to audit Big Apple’s automobile inventory. (Adv. Proc. No, 24, Jeffrey-Alexander Aff. ¶¶ 21-22.) VCI’s audit team was initially turned away by Big Apple management. (Id. ¶ 23.) On March 15, 2011, VCI learned that Big Apple was conducting a “secret liquidation of its inventory.” (Id. ¶ 24.) VCI was successfully able to complete an audit by March 16, 2011. The audit revealed that Big Apple had sold seventy-eight vehicles from its inventory and failed to remit payments, in the amount of $1,237,615,86, to VCI as required by the loan agreements.
(Id. ¶ 26.) In the automobile finance industry, such a sale is sometimes termed a “sale out of trust.” VW Credit, Inc. v. Salim (In re Salim), No. 13-42974, Adv.
III. Southern District of New York District Court Proceedings
On March 21, 2011, VCI filed a complaint against Big Apple, appellant, Koep-pel, and Samborski, in the Southern District of New York alleging claims for breach of contract, breach of guaranties, and replevin of the collateral. VW Credit, Inc. v. Big Apple Volkswagen, LLC, No. 11-cv-1950,
On March 15, 2012, Judge Paul A. En-gelmayer granted VCI summary judgment as to the liability portion of VCI’s breach of contract claims against Koeppel, Sam-borski, and appellant. Judge Engelmayer found that Big Apple had sold numerous vehicles, but failed to remit any payment to VCI. Because Koeppel, Samborski, and appellant had personally guaranteed the contract, Judge Engelmayer concluded that they had breached their contract with VCI and were liable for damages. Id. at *3-4.
On November 29, 2012, Judge Engel-mayer granted summary judgment on VCI’s motion as to damages on the breach of contract claim against Koeppel, Sambor-ski, and appellant. Judge Engelmayer found that there was no genuine issue of material fact as to the damages owed to VCI, and determined that Koeppel, Sam-borski, and Salim were liable to VCI in the amount of $1,146,758.11. VW Credit, Inc. v. Big Apple Volkswagen, LLC, No. 11-cv-1950,
IV. Bankruptcy Proceedings
On May 15, 2013, appellant filed for Chapter 7 bankruptcy in the Eastern District of New York, in which he sought to discharge the $1,146,758.11 judgment entered against him in the Southern District action. In re Salim,
On June 11, 2014, VCI moved for summary judgment on its claims against appellant. On March 16, 2015, Bankruptcy Judge Elizabeth S. Stong denied VCI’s motion for summary judgment with respect to its claims under Bankruptcy Code Section 523(a)(4), but granted VCI’s motion for summary judgment under Bankruptcy Code Section 523(a)(6).
Judge Stong first found that collateral estoppel prevented the parties from relit-igating Judge Engelmayer’s determinations that Big Apple “sold 78 vehicles from its inventory, but did not remit payment, as required under the Wholesale Loan Agreement, to VCI,” and that, in accordance with the terms of the continuing guaranty executed by appellant, appellant was liable to VCI in the amount of $1,146,758.11. Id. at *13. Judge Stong next denied VCI’s motion for summary judgment on its Section 523(a)(4) claims. Finally, Judge Stong granted VCI summary judgment as to its claim under Bankruptcy Code Section 523(a)(6). Judge Stong concluded that summary judgment was appropriate because appellant had acted willfully and maliciously, and injured VCI. Id. at *25-29. Judge Stong’s Memorandum Deci
STANDARDS OF REVIEW
I. Standard on Bankruptcy Appeal
This court has jurisdiction to hear appeals from decisions of a bankruptcy court pursuant to 28 U.S.C. § 158(a), which provides in relevant part that “[t]he district courts of the United States shall have jurisdiction to hear appeals ... from final judgment, orders, and decrees ... of bankruptcy judges.” 28 U.S.C. § 158(a). A district court generally reviews the findings of fact of a bankruptcy court for clear error and reviews conclusions of law de novo. 3939 WPR Funding LLC v. Campbell (In re Campbell),
II. Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), which applies in an adversary proceeding pursuant to Bankruptcy Rule 7056, the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Bronx Household of Faith v. Bd. of Educ. of City of N.Y.,
The moving party bears the burden of showing that it is entitled to summary judgment. See Anderson v. Liberty Lobby, Inc.,
The court is required to view the evidence in the light most favorable to the party opposing summary judgment, and to draw all reasonable inferences in favor of that party. Amnesty Am. v. Town of West Hartford,
Appellant argues that Judge Stong incorrectly applied collateral estoppel to the issue of intent, and that appellant has raised a genuine issue of fact regarding whether or not his actions were willful and malicious. Appellee argues that Judge Stong’s opinion should be affirmed, that appellant’s appeal should be dismissed as untimely, and that appellant’s appeal should be dismissed for failure to comply with Bankruptcy Rule 8014. For the following reasons, the court denies appellant’s appeal because it is untimely. In the alternative, even if appellant had timely filed his appeal, the court would affirm Judge Stong’s decision in its entirety.
I. Timeliness of Appeal
VCI argues that the court should dismiss appellant’s appeal as untimely because the March 16, 2015 Order granting summary judgment to VCI that appellant’s debt was not dischargeable was a final order that was appealable under 28 U.S.C. § 158(a). VCI asserts that the March 16, 2015 Order fully adjudicated the “singular” claim that appellant’s debt was nondis-chargeable. (ECF No. 7, Appellee Br. at 20-22.) Appellant argues that the March 16, 2015 Order only granted partial summary judgment, and was therefore an unappealable interlocutory order. (ECF No. 9, Appellant Reply at 2-3.) For the following reasons, the court concludes that the Bankruptcy Court’s March 16, 2015 Order was a final order that disposed of VCI’s claim that Salim’s debt is nondis-chargeable. Consequently, the appeal is dismissed as untimely.
This court has appellate jurisdiction to hear bankruptcy appeals “from final judgments, orders, and decrees,” or, “with leave of the court, from other interlocutory orders and decrees.” 28 U.S.C. § 158(a)(1). Generally, “a final order is one that conclusively determines the rights of the parties to the litigation, leaving nothing for the district court to do but execute the order,” Shimer v. Fugazy (In re Fugazy Exp., Inc.),
Appellant asserts that the Bankruptcy Court only granted partial summary judgment, and that VCI’s claim under Bankruptcy Code 523(a)(4) was still pending. Therefore, appellant argues, the March 16, 2015 Order is an interlocutory order and did not become appealable until VCI’s remaining claims under Bankruptcy
The court disagrees, and holds that "the March 16, 2015 Order was a final order and was, therefore, appealable as of right under 28 U.S.C. § 158(a)(1). Judge Stong’s order conclusively adjudicated an entire claim upon which relief could be granted. By granting summary judgment to VCI on its claim under Bankruptcy Code Section 523(a)(6), the order determined that Sal-im’s debts were nondischargeable. VCI’s claims under Bankruptcy Code Section 523(a)(4) did not provide for separately enforceable recovery. Rather, Salim’s conduct was alleged to have only caused a single harm which resulted in a judgment of liability and damages. Whether VCI was granted summary judgment on either theory presented in its claim of nondischarge-ability in the adversary proceeding, VCI sought the same remedy of nondischarge-ability on the same debt, irrespective of the specific basis under the Bankruptcy Code. After the Bankruptcy Court concluded that Salim’s debts were nondis-chargeable under Section 523(a)(6), there was no further relief for VCI to seek, and “there was simply nothing further to be done in the Bankruptcy Court.” In re The Bennett Funding Grp., Inc.,
To appeal timely from an order of a bankruptcy court to a district court, a party must file a notice of appeal within the time prescribed by Federal Rule of Bankruptcy Procedure 8002. Fed. R. Bankr. P. 8001(a). Rule 8002 requires that a party file a notice of appeal within fourteen days of the “date of the entry of the judgment, order, or decree appealed from.” Fed. R, Bankr. P. 8002(a). Over a year had elapsed between Judge Stong’s final order was entered on March 16, 2015, and appellant filing this appeal on April 20, 2016, and consequently, the appeal is dismissed as untimely.
II. Merits
The court dismisses this appeal because it is untimely. Even if the appeal were timely, however, the court would affirm Judge Stong’s March 16, 2015 Order that appellant’s debt is not dischargeable. First, upon de novo review, the court concludes that Judge Stong properly applied collateral estoppel. Second, upon de novo review, the court affirms Judge Stong’s conclusion that Salim’s conduct was willful and malicious under Bankruptcy Code Section 523(a)(6).
A. Collateral Estoppel
“Parties may invoke collateral estoppel to preclude relitigation of the elements necessary to meet a § 523(a) exception.” Ball v. A.O. Smith Corp.,
Judge Stong held that collateral estoppel applied to the following determinations by Judge Engelmayer: “that Big Apple sold vehicles without remitting payment to VCI, that VCI accelerated payments due under the Loan Agreements after discovering Big Apple’s breach, ... that Salim personally guaranteed those agreements^] ... determined VCI’s damages from the sale out of trust, and ... [that] VCI’s damages included consequential damages such as VCI’s expenses to protect its collateral, as well as its attorneys’ fees and costs.” In re Salim,
Appellant argues that VCI’s allegations of fraud and the issue of whether he was willful and malicious was not considered in Judge Engelmayer’s opinions, and therefore would not be subject to collateral estoppel. Although Judge Stong agreed with appellant that Judge Engelmayer did not consider appellant’s intent, Judge Stong’s opinion expressly acknowledged that, and did not apply collateral estoppel to the issue of appellant’s intent. Id.
Furthermore, upon a de novo review, the court finds that collateral estoppel was appropriately applied to Judge Engelmayer’s findings: the sale out of trust by Big Apple, which sold vehicles without remitting payment to VCI; VCI accelerated payments due under the loan agreements after discovering Big Apple’s breach; Sal-im signed a personal guaranty and was thus liable; VCI suffered damages from Big Apple’s sale out of trust; and VCI’s damages were in the amount of $1,146,758.11. The foregoing identical issues to those thát were actually litigated, considered and decided by Judge Engel-mayer were again raised by appellant in the adversary proceeding. Appellant was represented in each proceeding and had a full and fair opportunity to litigate the issues, and the resolution of these same issues was necessary to support a full and final judgment on the merits in the district court case before Judge Engelmayer. See Big Apple I,
Accordingly, appellant’s request for the court to reverse the Bankruptcy Court’s application of collateral estoppel is denied.
B. Section 523(a)(6)
i. Legal Standard
The Bankruptcy Code permits individuals to discharge preexisting debts in order to give afford relief to “honest but unfortunate” debtors. Cohen v. de la Cruz,
For a debt to be nondischargeable under Section 523(a)(6), the injury caused must have been willful. See Ka-
Extrapolating from the Supreme Court’s analysis of the willfulness requirement of Section 523(a)(6) in Geiger, district courts and bankruptcy courts in this Circuit have coalesced around a “substantially certain” test; courts find willful intent to cause injury where “the actor knows that the consequences are certain, or substantially certain, to result from his act.” Margulies v. Hough (In re Margulies I),
With respect to the malice requirement, the Second Circuit has stated that, as used in Section 523(a)(6), “‘malicious’ means wrongful and without just cause or excuse, even in the absénce of personal hatred, spite or ill-will.” In re Stelluti,
Where a debtor’s actions are motivated by potential profits, courts have refrained from implying malice in the absence of additional aggravating conduct. See Whitaker Secs., LLC v. Rosenfeld (In re Rosenfeld),
ii. Analysis
Appellant argues that he raised genuine issues of disputed fact that were material to whether his conduct was willful and malicious under Section 523(a)(6), (EOF No. 5, Appellant Br. at 18-24.)
1. Willfulness
Judge Stong concluded that appellant acted willfully by deliberately and intentionally causing injury to VCI, by causing Big Apple to repay his mother over VCI, despite appellant’s personal guaranty of Big Apple’s contractual obligation to pay VCI from the proceeds of vehicle sales, and in sending Big Apple’s' funds outside of the United States to pursue a business venture in Syria. In re Salim,
Appellant argues that he did not subjectively believe the consequences were substantially certain to result from his actions. (Id. at 18.) He argues that that the following facts, raised in his affidavit in opposition to VCI’s motion for summary judgment before the Bankruptcy Court, raise genuine disputes as to whether appellant believed his conduct was substantially certain to injure VCI: (1) he was in the business of buying and selling cars all over the world; (2) he had done other business deals with Osman, an individual in Syria,
The court finds that appellant failed to raise a genuine issue of disputed fact as to whether he willfully caused injury to VCI. The record shows that Big Apple breached the Wholesale Loan Agreement by selling 78 vehicles from its inventory but not remitting payment to VCI, and that appellant had guaranteed Big Apple’s performance to VCI under the loan agreements. Big Apple I,
2. Malice
Next, appellant argues that summary judgment should have been denied because the Bankruptcy Court did not consider that his investments in Syria and repayment of the loan to his mother were driven by potential benefits for Big Apple, and therefore were not malicious. (ECF No. 5, Appellant Br. at 22-24.) Further, appellant argues that he did not intend to harm VCI. (Id.)
Judge Stong concluded that the record showed that appellant caused Big Apple to breach its contractual obligations to VCI under the loan agreements by intentionally failing to remit, and instead diverting, the proceeds of its vehicle sales, and that appellant personally guaranteed Big Apple’s obligations to VCI. The record showed that appellant caused Big Apple to transfer its funds to his mother and brother rather than comply with his obligations to VCI. Judge Stong also found that appellant’s assertions that his understanding of the seniority of Big Apple’s .debt to his mother was contradicted by the plain terms of the loan agreement and inconsistent with his guaranty. In re Salim,
Upon a de novo review, the court agrees with the Bankruptcy Court’s conclusion that there is no genuine dispute in the
Despite his affidavit, appellant’s transfer of $335,000.00 to his mother clearly was in breach of his personal guaranty, and was wrongful and without just cause or excuse. Appellant does not dispute that VCI had a superior position to the proceeds of Big Apple’s vehicle sales under the loan agreements. (Adv. Proc. No. 37, Tr. of Aug. 19, 2014 hrg. at 3T (“[Appellant] is not questioning [VCI’s] right to priority.”). Furthermore, appellant has testified that he was aware that VCI had a senior secured interest in Big Apple’s assets when he signed the guaranty. (Adv. Proc. No. 23, Little Decl. Ex. 18, Julian Salim Dep. at 28-29, 32.) Even construing the evidence in favor of the nonmoving party, the court notes that the record does not provide any justification or excuse for the transfer of funds to appellant’s mother. There is no evidence that transferring $335,000.00 away from a senior lender, VCI, to pay off a debt owed to a junior lender, appellant’s mother, would benefit Big Apple or was otherwise justified. See Northeast Remarketing Servs., Inc. v. Guthier (In re Guthier), No. 09-50008,
The court also concludes that appellant’s transfer of funds to his brother in Syria was not justified or excused. Appellant states that “[h]e was in the business of buying and selling cars all over the world,” “[h]e had done other business deals with Rami Osman in the past,” “[h]e believed he was buying cars in the ordinary course of business. Salim entered into an agreement with Rami Osman,” and “Salim believed that the deal in Syria would have ‘been extremely lucrative and resulted [sic] in a multi-million dollar transaction.’” (ECF No. 5, Appellant Br. at 21.)
These self-serving assertions, however, are not supported by any evidence in the record. See Bellsouth Telecomms., Inc. v. W.R. Grace & Co.,
Additionally, appellant has failed to raise material facts which dispute the other indi-cia of malice: that he was aware that the loan from VCI required Big Apple to remit funds upon sale of vehicles, that Big Apple refused to permit VCI to audit Big Apple’s inventory, and that the funds were transferred at or about the same time that VCI auditors were denied entry to Big Apple. In re Alessi,
Appellant’s reliance on Ford Motor Credit Co. v. Gallaudet (In re Gallaudet),
CONCLUSION
For the foregoing reasons, the judgment of the Bankruptcy Court is AFFIRMED in its entirety and the appeal is dismissed. The Clerk of Court is respectfully directed to enter judgment and close the case.
SO ORDERED
Notes
.Many of the underlying facts were litigated in two summary judgment motions before Judge Paul A, Engelmayer of the United States District Court for the Southern District of New York. Additionally, appellant did not contest appellee’s Statement of Undisputed Material Facts under Local Rule 70S6.1 before the bankruptcy court.
. Koeppel’s partnership stake was purchased by Samborski and Salim in or around 2010, at which point Koeppel's ownership interest in Big Apple was extinguished. (Adv. Proc, No. 31, Salim Aff. ¶¶ 2-3.)
. Citations to the adversary procedure Bankruptcy Record before Judge Stong, contained in ECF No. 2, shall be referenced as citations to "Adv. Proc.”
. Appellee urges the court to dismiss appellant’s appeal for failure to comply with Federal Rule of Bankruptcy Procedure 8014. Because the appeal is dismissed as untimely, the court need not consider appellant’s additional procedural grounds for dismissal.