IN RE: DAVID W. BOWEN CASE NO. 05-30914 ADVERSARY NO. 05-3043 ORDER SUMMARY JUDGMENT MOTIONS DISCHARGEABILITY

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

FRANKFORT DIVISION

IN RE:

DAVID W. BOWEN CASE NO. 05-30914

DEBTOR

PEOPLES EXCHANGE BANK PLAINTIFF

VS. ADVERSARY NO. 05-3043

DAVID E. BOWEN DEFENDANT

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

This matter comes before the court on cross motions for summary judgment filed by the Plaintiff Peoples Exchange Bank (“Bank”) (Doc. 28) and by the Defendant David E. Bowen (“Bowen”) (Doc. 29). The Bank seeks summary judgment on the only surviving count of its complaint (the Bank acknowledged on the record in court and by agreed order that it is not pursuing its 523(a)(2) claims) to determine the dischargeability of Bowen’s debt owed on a construction loan, in the amount of $252,448.00, as set forth on the Bank’s proof of claim. The Bank asserts that the debt is nondischargeable under 11 U.S.C. 523(a)(4), alleging that the debt is one of defalcation while Bowen was in a fiduciary capacity. Mr. Bowen likewise seeks summary judgment, arguing that the Bank’s complaint should be dismissed for the lack of any technical trust as required by cases interpreting 523(a)(4). At a hearing on the pending motions held July 7, 2006, the parties agreed that the facts are not in dispute and that the matter turns solely on the court’s interpretation of whether a technical trust is created by and imposed on Bowen under KRS 376.050. Accordingly,

the court makes the following Findings of Fact, Conclusions of Law and Order.

Findings of Fact

1. On August 22, 2003, the Debtor David Bowen obtained a “Draw Down Line of Credit” loan from People’s Exchange Bank evidenced by two instruments: A Note in the maximum principal amount of $242,448.00 at an annual interest rate of 6% and a Construction Mortgage on Lot #15 of Eagle Trace Subdivision, Clay City, Powell County, Kentucky, securing the Note’s principal and interest, with an additional $25,000 for additional advances.

2. The purpose of the loan was to provide Bowen with funds necessary to construct a custom home for resale on the Eagle Trace Estates lot in Clay City, Kentucky.

3. The Note and Mortgage were recorded on August 29, 2003 in the office of the Powell County, Kentucky Clerk.

4. Beginning on August 29, 2003, and continuing through March 8, 2004, Mr. Bowen obtained principal advances on the Note and Mortgage in the amount of $243,495.93. The Bank did not allow any further advances to Mr. Bowen after March 8, 2004.

4. As of March 8, 2004, Mr. Bowen had made no payments on the loan, as no payments were due under the terms of the loan until August 21, 2004.

5. According to a Bank Construction Report, as of March 19, 2004, with one hundred percent (100%) of the loan proceeds having been withdrawn on the construction draw down loan, only forty five percent (45%) of the house construction had been completed.

6. After Bowen experienced several construction delays, including the total loss of his personal residence from a fire in which some construction materials and records were stored, the Bank declared the Note to be in default on June 4, 2004.

7. The Bank filed a foreclosure proceeding styled Peoples Exchange Bank v. David W. Bowen, et al., Powell Circuit Court, Civ. Action No. 04-CI-165 and Bowen counterclaimed under a theory of lender liability.

8. The state court action proceeded with the parties engaging in discovery until Mr. Bowen filed a Chapter 7 bankruptcy petition on September 28, 2005.

9. The Bank initiated this Adversary Proceeding to determine the dischargeability of the debt owed to it by Mr. Bowen on December 23, 2005, asserting, among other counts no longer before the court, that Mr. Bowen had committed defalcation by violating the provisions of KRS 376.050 and that the debt was therefore not dischargeable in bankruptcy under 523(a)(4).

Conclusions of Law

1. Section 523(a)(4) of the Bankruptcy Code provides that “a discharge under the Code does not discharge an individual debtor from any debt...for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” The Sixth Circuit has defined “defalcation” to encompass embezzlement and misappropriation by a fiduciary, as well as the “failure to properly account for such funds.” Capitol Indemnity Corp. v. Interstate Agency, Inc. (In re Interstate Agency), 760 F.2d 121,125 (6^th Cir. 1985) (citations omitted); see also Kriegish v. Lipan (In re Kriegish), No. 02-1610, 2004 WL 346041, *2-6 (6^th Cir. Feb. 23, 2004).

2. In order to find a debt nondischargeable under 523(a)(4) due to defalcation, the court requires proof by a preponderance of the evidence of the following: 1) A pre-existing fiduciary relationship; 2) a breach of that fiduciary relationship; and 3) a resulting loss. R.E. America, Inc. v. Garver (In re Garver), 116 F.3d 176, 178-79 (6^th Cir. 1997); Peoples Bank & Trust Company of Hazard v. Penick (In re Penick), Unpublished, 149 F.3d 1184 (Table), 1998 WL 344039 (6^th Cir. 1998).

3. In both Garver and Penick, the Sixth Circuit was careful to narrowly limit the nondischargeability exception provided for in 523(a)(4) to “only those situations involving an express or technical trust relationship arising from placement of a specific res in the hands of a debtor,” Penick, at *5, quoting Garver, 116 F.3d at 180.

4. The Bank’s position is that KRS 376.050 establishes the necessary elements of a trust relationship between the borrower and the lender in that the funds disbursed under the terms of the loan agreement are to be used solely for the construction of the home. KRS 376.050 (2) provides that no person shall willfully misappropriate or misapply the proceeds received from a loan made for the purpose of, among other things, erecting a building. KRS 376.990 (1) provides that any person who violates the provisions of subsection (2) of KRS 376.050 shall be guilty of a Class D felony.

5. Because Mr. Bowen had drawn down all of the proceeds under the loan but only completed forty five percent (45%) of the home and cannot account for all of the borrowed funds, the Bank claims he has committed defalcation for purposes of 523(a)(4) and that his debt to the Bank should be determined not dischargeable in bankruptcy. The Bank further argues that the alleged trust relationship between it and Mr. Bowen necessary for a viable claim under 523(a)(4) arises by virtue of the statute KRS 376.050 and the governing documents which came into existence upon execution thereof.

6. The court finds that the position advocated by the Bank does not fall within the narrow confines for application of 523(a)(4), as defined by the controlling Sixth Circuit cases which this court is bound to follow. The relationship between the Bank and Mr. Bowen is simply one of borrower and lender, and even though Kentucky statutory law may impose an obligation upon construction borrowers to use the loan proceeds for the agreed upon purpose of construction, it does not create a technical trust with a specific res placed in the hands of a borrower who owes a fiduciary duty to the lender.

ORDER

For the reasons set forth above, and based on the record in this case, including arguments of counsel, the court hereby finds that the Motion for Summary Judgment of Peoples Exchange Bank should be OVERRULED and that the Motion for Summary Judgment of David Bowen should be SUSTAINED. The complaint of Peoples Exchange Bank is hereby DISMISSED and the debt owed by David Bowen to Peoples Exchange Bank is subject to the court’s Order of Discharge entered herein on January 20, 2006.

Copies to:

Scott White, Esq.

Scott T. Rickman, Esq.

Matthew B. Bunch, Esq.