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6500 Cherrywood Ln - Greenbelt, MD 20770 - Main Tel: 301-344-8018 map
101 W Lombard St Room 8530 - Baltimore, MD 21201 - Main Tel: 410-962-2688

Debtor, an experienced mortgage broker and real estate professional who engineered and caused the establishment of a conservation easement and environmental mitigation credit bank as to certain valuable real estate which he owned, acted with the requisite fraudulent intent under 11 U.S.C. § 523(a)(2)(A) when he conveyed and transfered the same real estate in fee simple to good faith purchasers for value but continued to sell those mitigation credits to third parties, such that the resulting judgment entered by the state court should be excepted from his discharge. Fraudulent intent, for purposes of Section 523(a)(2)(A), requires that the debtor subjectively intended to deceive the creditor, based on the totality of the circumstances. Such intent may be inferred from the circumstances, including when the debtor knowingly or recklessly made false representations. In this case, Debtor argued that he was simply and innocently mistaken as to his right to continue selling the credits after conveying the underlying real property and that he did not intend to defraud the Plaintiffs. The Court found the existence of fraudulent intent based on a confluence of factors: 1) Debtor misrepresented to Plaintiffs at closing that all of the credits had been sold and at no time disclosed his intention to continue selling the credits post-settlement, 2) no documents either severed the interest in the credits from the interest in the land or disclosed the existence of the credits, 3) no documents supported Debtor's argument that he honestly believed he retained the right to continue to sell the credits, despite the fact that Debtor engineered the creation of the property rights at issue, 4) any ongoing maintenance duties as to the conservation easement, if Debtor had any, did not entitle Debtor to exercise control over the credits, and 5) Debtor sold the credits in at least 15 separate transactions post-settlement utilizing a form contract that erroneously continued to identify his wholly-owned entity as the owner of the real estate.

Robert A. Gordon