Rule 7016-1: Pretrial Procedures

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF NORTH CAROLINA

DIVISION
 

FINAL PRETRIAL ORDER
 

DATE OF CONFERENCE:    May 5, 1999

Appearance:  John Y. Lawyer, Raleigh, North Carolina, for plaintiff;

    Sam X. Attorney, Fayetteville, North Carolina, for defendant.
 

1. STIPULATIONS

1. All parties are properly before the court.

2. The court has jurisdiction of the parties and of the subject matter.

3. This is a core proceeding, or in the alternative, both parties have consented to hearing by the bankruptcy court.

4. All parties have been correctly designated.

5. There is no question as to misjoinder or nonjoinder of parties.

6. Facts:

1. Plaintiff is a New York corporation, licensed to do business and doing business in the State of North Carolina.

2. Defendant is a citizen of Wake County, North Carolina.

7. Legal Issues: The legal issue is whether the debt owed by the defendant to the plaintiff is nondischargeable under 11 U.S.C. § 523(a)(2)(B).

8. Factual Issues:

1. Did the defendant receive money, property, services, or an extension, renewal, or refinancing of credit through the use of a statement in writing that was materially false?

2. Did the written statement relate to the defendant's or an insider's financial condition?

3. Did the plaintiff reasonably rely on the written statement?

4. Did the defendant make or publish the written statement with the intent to deceive the plaintiff
    

2. CONTENTIONS

1. Plaintiff

1. Facts:

1. Plaintiff loaned defendant $XXX,XXX.XX based on written property appraisals that defendant had falsified materially.

2. The written appraisals were on real property owned by the defendant.

3. Plaintiff had no factual reason not to accept the appraisal and, therefore, reasonably relied on the appraisal.

4. Defendant had the appraisal done simply for its use in obtaining the loan from plaintiff.

2. Law:

1. The falsified property appraisal used by the defendant in obtaining a loan from the plaintiff has created a nondischargeable debt under 11 U.S.C. § 523(A)(2)(B).

2. Defendant

1. Facts:

1. Defendant did not falsify the property appraisals he used in obtaining the loan from the plaintiff.

2. Plaintiff is experienced as a commercial lender in the area and has made loans on property appraisals for 50 years.

3. Defendant had the appraisal done at the plaintiff's request.

2. Law:

1. The loan from plaintiff was not obtained through the use of a false appraisal and, therefore, the debt is dischargeable.

3. EXHIBITS
    

1. Plaintiff:

   Number	Title	Objection
   1	Appraisal of Bob Hope	Hearsay
   2	Deed of Trust dated 1/4/84	None
   3	Promissory Note dated 1/4/84	None
   4	Personal Financial Statement dated 12/3/83	None

2. B. Defendant:

   Number	Title	Objection
   1	Appraisal of Joe Smith	Hearsay
   2	Debtor's Bankruptcy Petition	None

4. DESIGNATION OF PLEADINGS AND DISCOVERY MATERIALS
    

1. Plaintiff:

   Document	Portion	Objection	Reason
   Plaintiff's	Nos. 1, 8	No. 8	Privilege
   first set of	and 9
   interrogatories
   Deposition	Vol. 1, line 6	Line 6, p. 1,	Hearsay
   of Richard Roe	p. 1, thru	thru line 2,
   	line 5, p. 6	p. 7

2. Defendant:  None
    

4. WITNESSES
    

1. Plaintiff:
    

   Name	Address	Proposed Testimony
   Frank Flake	Selma, N. C.	Loan officer - facts
   		surrounding the loan

2. Defendant:
    

   All witnesses listed by plaintiff:
   Name	Address	Proposed Testimony
   Sam Smith	Apex, N. C.	Facts surrounding
   		value of real property
   		in the debtor's area

Trial Time estimate:________________days.

APPROVED BY:

_____________________________                                                                  

U. S. Bankruptcy Judge

DATED:   
_____________________________