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Momoh v. Osayande

United States District Court, District of Columbia

February 6, 2017

DIRISU OJO MOMOH, Appellant,
v.
VICTOR OSAYANDE, Appellee.

          MEMORANDUM OPINION

          AMIT P. MEHTA UNITED STATES DISTRICT JUDGE.

         Dirisu Ojo Momoh appeals from a Bankruptcy Court determination that his debt to Victor Osayande is not dischargeable because Momoh obtained the money he owes by fraud. Momoh contends that the Bankruptcy Court erred in reaching that conclusion because the record evidence demonstrates he did not intend to deceive Osayande, but, in fact, repaid Osayande in part, thereby establishing Momoh's intent to repay Osayande. Upon review of the record and consideration of the parties' briefs, the court affirms the ruling of the Bankruptcy Court.

         I

         The court assumes the parties' familiarity with the underlying record and recites only what is necessary to resolve the narrow issue on appeal.

         In early 2011, Momoh approached Osayande with an opportunity to invest in Momoh's business, “Dirisu Momoh Auto Sales, Inc., ” which purportedly purchased cars in the United States and resold them in Nigeria for a profit. See Br. of the Appellee, ECF No. 7 [hereinafter Appellee's Br.], at 5[1]; Appellee's Br., App'x, ECF No. 7-1, at 28-102 [hereinafter Osayande Direct Exam. Tr.], at 4-7. Dirisu Momoh Auto Sales, Inc. did not exist. See Br. of the Appellant, ECF No. 6 [hereinafter Appellant's Br.], App'x, ECF No. 6-1, at 24-40 [hereinafter Trial Ruling Tr.], at 10. Momoh and Osayande subsequently entered into two contracts-one in April 2011, the other in July 2011-under each of which Osayande invested $6, 500 in “Dirisu Momoh Auto Sales, Inc.” and expected to earn a profit of $1, 625 on a bi-monthly basis for a set period of time. See Appellant's Br., App'x, ECF No. 6-1 [hereinafter Appellant's App'x], at 20-21. On March 26, 2012, Osayande filed a police report claiming Momoh had defrauded him. Appellant's Br., App'x, ECF No. 6-1, at 18-19 [hereinafter Police Report], at 1. The Police Report reflects that Osayande gave the police a copy of the two contracts and supposedly made a statement “that [Momoh] did give him 1600 dollars in June of 2011.” Id. at 2.

         At trial, Momoh testified that he made three payments to Osayande to satisfy his obligations under the contracts. First, he claimed he made a cash payment to Osayande in June 2011, for which Osayande refused to give him a receipt. See Trial Ruling Tr. at 12. Second, Momoh testified he wired two payments to Osayande on September 26, 2011. In support, he submitted an exhibit purporting to show that he made two wire transfers-one for $759 and one for $734-to “Victor Osayange, ” in Salt Lake City, Utah, on September 26, 2011, via Western Union. Appellant's App'x at 17.

         Osayande testified that he never received any payments from Momoh. See Osayande Direct Exam. Tr. at 19, 25. Additionally, he stated under oath that his name is not spelled with a “g, ” and he has never been to Salt Lake City, Utah. See Id. at 25-27. Lastly, Osayande testified that the Police Report misstates what he told the police; instead, he “told the police that [Momoh] said he gave [Osayande] $1600, and that's not true.” Id. at 33.

         The Bankruptcy Court ultimately credited Osayande's testimony over Momoh's testimony and ruled that the debt was not dischargeable because it was procured by actual fraud. See In re Momoh, No. 14-291, 2016 WL 270155, at *2, 5-6 (Bankr. D.D.C. Jan. 20, 2016).

         II

         Federal district courts have jurisdiction to review the final judgments of the bankruptcy courts in their judicial district. See 28 U.S.C. § 158(a). In so doing, the district court reviews the bankruptcy court's legal conclusions de novo and factual findings for clear error. Yelverton v. District of Columbia, 529 B.R. 1, 3 (D.D.C. 2014).

         Clear error exists only when the reviewing court “is left with the definite and firm conviction that a mistake has been committed.” Moore v. Robbins, 24 F.Supp.3d 88, 94 (D.D.C. 2014) (internal quotation mark omitted). “If the [fact-finding] court's account of the evidence is plausible in light of the record viewed in its entirety, the [reviewing court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” See Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985); accord Hope 7 Monroe St. Ltd. P'ship v. RIASO L.L.C., 473 B.R. 1, 6 (D.D.C. 2012), aff'd, 743 F.3d 867 (D.C. Cir. 2014). Indeed, “[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574; accord Moore, 24 F.Supp.3d at 94. This standard applies equally to the district court's review of oral and documentary record evidence, as well as the bankruptcy court's credibility determinations. See Alberts v. HCA, Inc., 496 B.R. 1, 9, 18-19 (D.D.C. 2013); In re Chreky, 450 B.R. 247, 251- 52 (D.D.C. 2011).

         Under Section 523 of Title 11 of the United States Code, an individual debtor in bankruptcy seeking discharge of his debts under Section 727 remains liable for monetary debts “obtained by- false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition.” 11 U.S.C. § 523(a)(2)(A). The terms “false pretenses, ” “false representation, ” and “actual fraud” “imply elements that the common law has defined them to include” at the time each term was added to the statutory provision. Field v. Mans, 516 U.S. 59, 69-70 (1995); see Husky Int'l Electronics, Inc. v. Ritz, 578 U.S.___, 136 S.Ct. 1581, 1586 (2016). The Supreme Court has read the term “actual fraud” broadly to mean “anything that counts as ‘fraud' and is done with wrongful intent.” Husky Int'l Electronics, 136 S.Ct. at 1590. When the term “actual fraud” was added to § 523(a)(2)(A) in 1978, the District of Columbia defined the elements of fraud as: “(1) a false representation (2) in reference to material fact, (3) made with knowledge of its falsity, (4) with the intent to deceive, and (5) action is taken in reliance upon the representation.” Bennett v. Kiggins, 377 A.2d 57, 59 (D.C. 1977); accord Va. Academy of Clinical Psychologists v. Grp. Hospitalization & Med. Servs., Inc., 878 A.2d 1226, 1233 (D.C. 2005).

         III

         Momoh raises two interrelated arguments why the Bankruptcy Court erred in concluding he intended to deceive Osayande. First, Momoh contends that Osayande bore the burden of proof at trial to show Momoh intended to deceive him, and Osayande failed to submit evidence proving Momoh had no intention of repaying Osayande. Second, Momoh asserts that the evidence he introduced firmly establishes that ...


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