• U.S. Bankruptcy Court
  • 10-22729
  • Sep 30 2013 (Date Decided)
  • Dabrowski, J.

Any fiduciary relationship arising out of a nondiscretionary broker-client relationship exists in the context of a particular transaction. Cameron and Marianne Smith filed a voluntary petition under Chapter 7. Ewa Zielinski commenced this adversary proceeding to except her claim from discharge under §523(a)(2)(A) for false representations or §523(a)(4) for fraud or defalcation by a fiduciary. The court's findings included the following facts. Zielinski moved her mutual fund accounts to the Investment Firm of Edward Jones following, and to remain a client of, Marianne Smith. Around 2005, Zielinski asked about real estate. Marianne Smith twice indicated she was not knowledgeable and Edward Jones did not handle real estate investments. Smith suggested Zielinski contact Cameron Smith, who worked in Florida real estate. He co-owned jointly with Marianne Smith, uninvolved in business operations, Fast Title, Inc. Fast Title purchased vacant lots in a client's development. Upon Cameron Smith's suggestion, Zielinski also purchased two lots to "flip." Marianne Smith changed firms. Zielinski, no longer a client, obtained her assistance to wire funds for the closing. Following a precipitous market decline, Zielinski's lots went unsold. Cameron Smith became financially unable to repurchase her lots as he previously agreed. Zielinski filed a complaint against Marianne Smith and Edward Jones with FINRA, the Financial Industry Regulation Authority. The investigation closed but caused Marianne Smith's job loss. The Smiths settled with Zielinski and defaulted on payments. Zielinski obtained a Florida judgment for the unpaid balance. The bankruptcy court found Zielinski's credibility undermined, including by her FINRA complaint allegations. She failed to establish the requisite "fiduciary" relationship for her §523(a)(4) claim of fiduciary defalcation. Marianne Smith serviced nondiscretionary accounts for Zielinski and made it clear she was not knowledgeable about, and Edward Jones was not involved in, real estate. Any real estate discussion did not relate to a transaction within the scope of their broker-client relationship. The plaintiff failed to prove her fraud claims under §523(a)(2)(A). No credible evidence supported the allegation that Cameron Smith, in signing the repurchase agreement, and both Smiths, in signing the settlement agreement, falsely represented their intent. No evidence supported a claim of actual fraud. From Zielinski's purchase of the lots, the Smiths received only a $340 payment to Fast Title for handing the closing. The subject debt was dischargeable.