In re SAMANTHA DELAY-WILSON, In Chapter 7, Debtor(s) JEAN HEBERT, Plaintiff(s) v. SAMANTHA DELAY-WILSON, Defendant(s).

Case No. A10-00478-HAR, Adv Proc No A11-90005-HAR.United States Bankruptcy Court, D. Alaska.
April 22, 2011

MATTHEW J. SHIER (SBN 072638), JEREMY W. KATZ (SBN: 119418), PINNACLE LAW GROUP LLP, San Francisco, CA, Attorneys for Plaintiff Jean Hebert.

MEMORANDUM REGARDING LODGED DEFAULT JUDGMENT FORM
HERBERT ROSS, Recalled Bankruptcy Judge

I have not signed the lodged judgment (copy attached). For one thing, it does not include what the plaintiff seeks — a nondischargeability judgment. I would hesitate, based on the prove-up declarations supplied, [1] to sign a default judgment even if it did contain a 11 USC § 523(a) holding. The prove-up declarations say only that the allegations in the complaint are true.

For one thing, the declarations do not establish justifiable reliance required under § 523(a)(2)(A). Also, the underpinning of the complaint is an oral agreement between the parties if Hebert gave Delay-Wilson money — eventually $3.7 million — she would guarantee a 14.2% return on the money. Assuming that is true, it does not establish there was a present intent not to

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perform, which is an element of a § 523(a)(2)(A) claim.[2] Nor does it explain the history of the relationship, which began in August 2001, almost 11 years ago.

There was subsequently a lot of shucking and jiving by Delay-Wilson alleged by Hebert.[3] If this proves Hebert’s fraud or misrepresentation claim, provide the court with authority and connect the factual dots to § 523(a)(2)(A).

Likewise, provide the court with authority that Delay-Wilson was a fiduciary under Alaska law presumably to comply with § 523(a)(4). Hebert has not alleged embezzlement.

Finally, the § 523(a)(6) conversion claim is not sufficiently established. She could have lost the money in risky investments, without having actually converted it. At least provide the court some legal authority that the inference in the complaint supports a § 523(a)(6) judgment.

In short, the plaintiff must file an adequate prove-up declaration, with supporting legal analysis, to comply with FRBP 7055, incorporating FRCP 55(b)(2). I suggest the prove-up memo provide an outline, based on the well settled law in the 9th
Circuit with respect to §§ 523(a)(2)(A), (4), and (6), and explain how the facts and law support Hebert’s claims for each element.

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JUDGMENT BY DEFAULT
Upon consideration of the request for entry of default judgment against Samantha Delay-Wilson (the “Request”), the accompanying declarations, the pleadings and files in this Adversary Proceeding, including the Entry of Default (By Clerk), dated April 18, 2011, (docket number 5), and good cause appearing,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

1. The Request is granted.

2. Judgment is hereby made in favor of Plaintiff Jean Hebert against Defendant Samantha Delay-Wilson in the amount of $3,683,705.00, plus interest thereon at the legal rate from and after June 30, 2008, until paid in full, plus costs of suit herein incurred.

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Dated: April 21, 2011

[1] Docket Nos. 4 and 6, several declarations by Mr. Hebert and one by Mr. Shier.
[2] In re Ortenzo Hayes, 315 BR 579, 587 (Bankr CD Cal 2004).
[3] See, ¶ 8 of the complaint.

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