deBenedictis v. Brady-Zell

2014 | Cited 0 times | First Circuit | June 25, 2014

United States Court of Appeals For the First Circuit

No. 13-9014


Debtor. ____________________


Creditor, Appellant,



Debtor, Appellee.




Howard, Selya and Thompson, Circuit Judges.

Danielle E. deBenedictis and deBenedictis, Miller & Blum, P.A. on brief for appellant. Logan A. Weinkauf and Benner & Weinkauf, P.C. on brief for appellee.

June 25, 2014

SELYA, Circuit Judge. Faced with the grim prospect of a

crumbling marriage, Karen A. Brady-Zell (the debtor) engaged

Danielle E. deBenedictis (the attorney) to act as her counsel. The

debtor paid the attorney an up-front retainer of $25,000. After

the representation ended, the attorney billed the debtor for

additional fees and expenses of roughly $62,000. The debtor

balked, and the attorney filed a state-court collection action.

The debtor then petitioned for bankruptcy protection,

effectively staying the pending state-court action. See 11 U.S.C.

§ 362(a). She listed the balance due to the attorney among her

scheduled debts. Left holding what appeared to be an empty bag (or

nearly so), the attorney instituted an adversary proceeding in the

bankruptcy court under, inter alia, 11 U.S.C. § 523(a)(2)(A).1 She

asserted that the debt had been incurred through false and

fraudulent representations and under false pretenses and was,

therefore, nondischargeable.

Following a bench trial, the bankruptcy court wrote a

thoughtful rescript in which it concluded that the attorney had not

carried her burden of proving either false pretenses or a false

representation and proceeded to dismiss the adversary proceeding.

See deBenedictis v. Brady-Zell (In re Brady-Zell), No. 10-1119,

1 With exceptions not relevant here, 11 U.S.C. § 523(a)(2)(A) provides that a discharge in bankruptcy "does not discharge an individual debtor from any debt . . . to the extent obtained by . . . false pretenses, a false representation, or actual fraud."


2013 WL 1342479 , at *8-9 (Bankr. D. Mass. Apr. 2, 2013). On an

intermediate appeal, the Bankruptcy Appellate Panel (BAP) upheld

the bankruptcy court's ukase. It, too, offered a closely reasoned

explanation of its ruling. See deBenedictis v. Brady-Zell (In re

Brady-Zell), 500 B.R. 295 , 301-05 (B.A.P. 1st Cir. 2013).

Unwilling to take "no" for an answer, the attorney

appealed the BAP's decision. After careful consideration, we


We need not tarry. Having scrutinized the papers in the

case and surveyed the applicable law, we discern no principled

basis for disturbing the findings and conclusions of the lower

courts. With this in mind, we can be brief; after all, we have

explained before that when lower courts have supportably found the

facts, applied the appropriate legal standards, articulated their

reasoning clearly, and reached a correct result, a reviewing court

ought not to write at length merely to hear its own words resonate.

See, e.g., Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1 , 2

(1st Cir. 2004); Lawton v. State Mut. Life Assur. Co., 101 F.3d

218 , 220 (1st Cir. 1996); Ayala v. Union de Tronquistas, Local 901,

74 F.3d 344 , 345 (1st Cir. 1996); Holders Capital Corp. v. Cal.

Union Ins. Co. (In re San Juan Dupont Plaza Hotel Fire Litig.), 989

F.2d 36 , 38 (1st Cir. 1993). Accordingly, we affirm the judgment

for substantially the reasons previously elucidated by the


bankruptcy court and the BAP, pausing only to add a few


First: The attorney's principal claim is that, at the

start of the lawyer-client relationship, the debtor falsely

promised to pay her fees. In other words, she alleges that the

debtor made a commitment to pay whatever fees thereafter might

accrue without the slightest intention of honoring that commitment.

To prove that the debt is nondischargeable under 11

U.S.C. § 523(a)(2)(A), the attorney qua creditor had to complete a

six-step march. This march required her to show that the debtor

(i) made a knowingly false representation, (ii) intending to

deceive the creditor, and (iii) to induce the creditor to rely upon

the false promise; with the result that (iv) the creditor relied

upon the false promise, and (v) justifiably so, so that (vi) damage

resulted. See McCrory v. Spigel (In re Spigel), 260 F.3d 27 , 32

(1st Cir. 2001); Palmacci v. Umpierrez, 121 F.3d 781 , 786 (1st Cir.


The burden of proving the elements underlying each of

these six steps by a preponderance of the evidence rests with the

party seeking nondischargeability. See McCrory, 260 F.3d at 32.

A creditor arguing for an exception to nondischargeability must

prove all six elements; if her proof falls short on any element,

her quest for nondischargeability fails. See id.


Here, the bankruptcy court went no further than the first

two elements. It found that the attorney had not proven by

preponderant evidence that the promise to pay was either knowingly

false when made or intended to deceive. See deBenedictis, 2013 WL

1342479 , at *8. The court premised this determination squarely on

the burden of proof: it painstakingly reviewed the record and

concluded that the weight of the evidence was "split about even."


Given this fully supportable assessment, we can find no

fault with the court's determination that the attorney failed to

carry her burden of proof. When the weight of the evidence is in

equipoise, a party cannot plausibly be said to have carried the

devoir of persuasion. See Toye v. O'Donnell (In re O'Donnell), 728

F.3d 41 , 45 (1st Cir. 2013).

Second: The attorney labors to cast the relevant events

in a light more flattering to her theory of the case. Stripped of

rhetorical flourishes, this amounts to an invitation for us to

reweigh the evidence and balance the decisional scales differently.

We decline this invitation.

At this stage of bankruptcy litigation, the task of an

appellate court is not to find the facts anew but, rather, to assay

the bankruptcy court's factfinding for clear error.2 See Boroff v.

2 Our standard of review is not affected by the fact that this is a second-tier appeal. Because our review of the BAP's decision is de novo, see Smith v. Pritchett (In re Smith), 586 F.3d 69 , 73


Tully (In re Tully), 818 F.2d 106 , 109 (1st Cir. 1987). While the

evidence as a whole is capable of supporting the inference of

knowing falsity drawn by the attorney, it likewise is capable of

supporting the inference of inconclusiveness drawn by the

bankruptcy court. That ends this aspect of the matter: it is

apodictic that where the facts can support two plausible but

conflicting interpretations of a body of evidence, the factfinder's

choice between them cannot be clearly erroneous. See Gannett v.

Carp (In re Carp), 340 F.3d 15 , 25 (1st Cir. 2003); see also United

States v. Romain, 393 F.3d 63 , 69 (1st Cir. 2004).

Third: The attorney argues pejoratively that the debtor

was shown to be a liar and that the debtor's "dishonest and

untrustworthy" testimony undermines the bankruptcy court's

factfinding. This argument is wide of the mark. The bankruptcy

court did not rest its decision on any illusions about the debtor's

veracity. To the contrary, the bankruptcy court found much of her

testimony to be self-serving and not deserving of credence. See

deBenedictis, 2013 WL 1342479 , at *2.

Taking this lack of veracity into account, however, it

proceeded to find that the attorney's proof was not preponderant.

See id. at *7-8. We are not aware of any rule that mandates a

finding of nondischargeability against a party simply because her

(1st Cir. 2009), we look through that decision and directly review the bankruptcy court's findings of fact for clear error, see id.; see also Fed. R. Bankr. P. 8013.


testimony lacks candor. Although we do not countenance untruthful

testimony, a finding of nondischargeability requires more than a

showing that the debtor exhibited a serious character flaw. The

attorney, who had the burden of proof, made no such additional

showing here.

We need go no further. The Bankruptcy Code is designed

to give debtors a fresh start, and exceptions to this principle

should be narrowly construed. Rutanen v. Baylis (In re Baylis),

313 F.3d 9 , 17 (1st Cir. 2002).

In this instance, the attorney did not carry her burden

of proving her entitlement to such an exception. The courts below

explained at length why the attorney's arguments (including

arguments not mentioned above) were unavailing, and it would serve

no useful purpose to repastinate that well-plowed ground. It

suffices to say that the attorney's appeal, though full of sound

and fury, is lacking in substance.



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