Swiger v. Mansfield

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: ) Bankruptcy No. 18-24109-JAD

)

BRADLEY S. SWIGER, ) Chapter 13

Debtor. )

)

VICKY L. MANSFIELD, ) Adversary No. 19-02015-JAD

Plaintiff, )

)

-vs- )

)

BRADLEY S. SWIGER and )

RONDA J. WINNECOUR, )

CHAPTER 13 TRUSTEE, )

Defendants. )

)

)

IN RE: ) Bankruptcy No. 18-24109-JAD

)

BRADLEY S. SWIGER, ) Chapter 13

Debtor. )

)

BRADLEY S. SWIGER, ) Adversary No. 19-02009-JAD

Plaintiff, )

) Related to Doc. No. 33

-vs- )

) Adversary Nos. 19-2009-JAD and

VICKY L. MANSFIELD, ) 19-2015-JAD are consolidated at

Defendant. ) Adversary No. 19-2009-JAD

)

MEMORANDUM OPINION

The above-captioned matter concerns a motion for summary judgment

filed by the Debtor, Bradley S. Swiger (the “Debtor”) seeking a determination of

dischargeability for a debt owed to his ex-wife, Vicky L. Mansfield (“Ms.

Mansfield”). For the reasons set forth below, the Court will enter an order

denying the Debtor’s Motion for Summary Judgment (the “Motion for Summary

Judgment”, ECF No. 33).1

I.

Factual & Procedural History

The Debtor filed for relief under chapter 13 of the Bankruptcy Code (11

U.S.C. § 101 et seq.) on October 23, 2018. In his schedule of unsecured

creditors, the Debtor lists Ms. Mansfield as being owed a debt in the amount of

$78,000. See Schedule E/F: Creditors Who Have Unsecured Claims, 18-24109-

JAD, ECF No. 14, p. 15. The Debtor further identifies the debt to Ms.

Mansfield as being incurred on May 16, 2016 for “Marital Settlement

Agreement (Parent Plus Student Loan[.])” The parties now dispute whether this

debt (the “Mansfield Debt”) is dischargeable.

By way of background, the Debtor and Ms. Mansfield (together, the

“Parties”) are former spouses who married on March 7, 1993, and divorced in

2016. See Motion for Summary Judgment, p. 3. The Parties have two children,

Cassandra and Amanda. During the course of the Parties’ marriage and prior

to the commencement of divorce proceedings on May 11, 2015, certain loans

were taken out to finance Amanda’s college education (the “Student Loans”).

The circumstances surrounding the application for the Student Loans are

contested and form the basis of the nondischargeability dispute sub judice.

In short, Ms. Mansfield alleges that the Debtor fraudulently signed her

name to the Student Loan applications because any permission given to the

1 This Court has subject matter jurisdiction to enter a final judgment pursuant to 28

U.S.C. §§ 157 and 1334. This is a core matter pursuant to 11 U.S.C. § 157(b)(2)(A) &

(I).

Debtor to sign Ms. Mansfield’s name was conditioned on the Debtor’s alleged

representation that the Student Loans would be applied for jointly in both

Parties’ names. See Defendant’s Answer to Plaintiff’s Complaint to Determine

Dischargeability (the “Mansfield Answer”), 19-02009-JAD, ECF No. 4, ¶¶ 7-12.

The Debtor, for his part, alleges that he never applied for any Student Loans in

Ms. Mansfield’s name. See Motion for Summary Judgment, p. 10. Nonetheless,

what is not contested is that the Student Loans were ultimately borrowed

under the name of Ms. Mansfield alone.

Also disputed is whether and at what point Ms. Mansfield became aware

that she was the sole obligor on the Student Loans, as opposed to a co-obligor

with the Debtor. Ms. Mansfield alleges she only became aware of her sole

obligor status during the course of her divorce proceedings from the Debtor,

while the Debtor alleges that Ms. Mansfield knew of her status at all times. See

Mansfield Answer at ¶ 17; Motion for Summary Judgment, pp. 10-11.

On May 16, 2016, the Parties executed a Consent Order of Court in their

state court divorce proceedings (the “Consent Order”). See Complaint to

Determine Dischargeability of Marital Property Settlement Agreement Pursuant to

[§]523(a)(15) and [§]1328(a) (the “Debtor’s Complaint”), 19-02009-JAD, ECF No.

1, Ex. A. Pursuant to the Consent Order, the Parties agreed in-part, as follows:

7. The parties agree to be responsible for [s]tudent [l]oans for their

children as follows; a) Husband shall be solely responsible for the

child[’]s Amanda’s [l]oan which are currently in Wife[’]s name. He

will assume the entire balance, hold Wife harmless of this

obligation and make monthly payments directly to Fed Loans. Wife

shall ensure that Husband has all account numbers, bills,

addresses, payment coupons etc. so he can make his payments

directly.

. . .

11. This is a full and final settlement of all claims and there are no

other outstanding claims between these parties.

See Consent Order at ¶¶ 7 & 11.

The Debtor subsequently fell behind on payment of the Student Loans

and Ms. Mansfield commenced contempt proceedings against the Debtor for

failure to abide by the Consent Order. A contempt hearing was held on

September 11, 2018 before Master Melanie Shannon Rothey, Esq. Master

Rothey issued a Master’s Report and Recommendation on October 3, 2018. See

Defendant’s Appendix to Defendant’s Answer to the Plaintiff’s Concise Statement

of Material Facts Pursuant to L.B.R. 7056-1(b)(C)(3) (“Defendant’s Appendix”),

19-02009-JAD ECF No. 44-1, pp. 101-109. Master Rothey recommended that

the state court enter an order finding the Debtor in contempt. Master’s Report

and Recommendation, ECF No. 44-1 at pp. 108-109. Before the state court

could enter a final order, the Debtor filed for bankruptcy relief.

On January 21, 2019, the Debtor filed his Debtor’s Complaint at

adversary proceeding 19-02009-JAD seeking a determination that the

Mansfield Debt is dischargeable as a debt arising under a marital property

settlement agreement pursuant to 11 U.S.C. § 523(a)(15) and § 1328(a). In

response, Ms. Mansfield commenced her own adversary proceeding (19-02015-

JAD) by which she seeks a determination that the Mansfield Debt is non-

dischargeable under 11 U.S.C. § 523(a)(2)(A). The adversary proceedings have

since been consolidated at adversary proceeding 19-02009-JAD.

The Debtor now requests that summary judgment be entered in his favor

in the consolidated proceedings by way of his Debtor’s Motion for Summary

Judgment.

II.

Summary Judgment Standard

Federal Rule of Civil Procedure 56, made applicable to adversary

proceedings by Federal Rule of Bankruptcy Procedure 7056, provides, in part,

that “[t]he court shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” See Fed. R. Civ. P. 56(a).

“Summary judgment is appropriate only where ... there is no

genuine issue as to any material fact ... and the moving party is

entitled to judgment as a matter of law.” Melrose, Inc. v.

Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v.

Viacom, Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P.

56(a). Issues of fact are genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also

McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material

facts are those that will affect the outcome of the trial under

governing law. Anderson, 477 U.S. at 248. The Court’s role is “not

to weigh the evidence or to determine the truth of the matter, but

only to determine whether the evidence of record is such that a

reasonable jury could return a verdict for the nonmoving party.”

Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d

Cir. 2009). “In making this determination, ‘a court must view the

facts in the light most favorable to the nonmoving party and draw

all inferences in that party’s favor.’ ” Farrell v. Planters Lifesavers

Co., 206 F.3d 271, 278 (3d Cir. 2000) (quoting Armbruster v.

Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).

The moving party bears the initial responsibility of stating the

basis for its motion and identifying those portions of the record

that demonstrate the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323. If the moving party meets this burden,

the party opposing summary judgment “may not rest upon the

mere allegations or denials” of the pleading, but “must set forth

specific facts showing that there is a genuine issue for trial.”

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 n.11 (1986)). “For an issue to be genuine, the nonmovant

needs to supply more than a scintilla of evidence in support of its

position—there must be sufficient evidence (not mere allegations)

for a reasonable jury to find for the nonmovant.” Coolspring Stone

Supply v. Am. States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993);

see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.

2005) (noting that a party opposing summary judgment “must

present more than just bare assertions, conclusory allegations or

suspicions to show the existence of a genuine issue”) (internal

quotation marks omitted).

Hadeed v. Advanced Vascular Res. of Johnstown, LLC, No. 3:15-CV-22, 2017

WL 4998663, at *4 (W.D. Pa. Oct. 30, 2017).

III.

Analysis

In his Motion for Summary Judgment, the Debtor posits four questions

for resolution:

1. Whether an equitable distribution award that arises from a

divorce action is nondischargeable, as determined by 11 U.S.C.

§523(a)(15)?

2. Whether an equitable distribution award that arises from a

divorce action is dischargeable under 11 U.S.C. §1328(a)?

3. Whether an equitable distribution award in a divorce action

could be considered to be in the nature of alimony, maintenance or

support, and therefore, non-dischargeable pursuant to 11 U.S.C.

§523(a)(5)?

4. Whether the equitable distribution award runs afoul of

§523(a)(2) and is considered to be excepted from discharge if the

debt was obtained by false pretenses, a false representation, or

actual fraud?

See Motion for Summary Judgment, p. 5.

First, the Court notes that the manner in which the first three questions

are phrased—in that they seek a determination of whether “an” equitable

distribution order as opposed to “the” equitable distribution order (a/k/a the

Consent Order) would be dischargeable—speaks in generalities and not to the

specifics of this case. Indeed, the Debtor’s analysis in his Motion for Summary

Judgment for the first two questions does not discuss any of the particulars of

this matter. If the Debtor truly intended the issues to be phrased in this

expansive nature, answering them fully would require this Court to produce a

treatise on hypothetical situations not immediately before the Court. The

Court declines to issue such an advisory opinion.

To the extent the Debtor intended a more narrow inquiry, it appears that

a detailed analysis of whether the Mansfield Debt created by the Consent Order

is dischargeable under 11 U.S.C. § 523(a)(15) and § 1328(a), and/or whether it

is nondischargeable under § 523(a)(5), is unnecessary in this case. This is

because Ms. Mansfield has conceded (or appears to concede) in her pleadings

that if the debt is not found to be nondischargeable on account of § 523(a)(2)(A)

it is otherwise dischargeable.

For example, in her answer to the Debtor’s Complaint, Ms. Mansfield

responded “Admitted” to the Debtor’s averment that: “The above-mentioned

debt is not in the nature of alimony, maintenance or support and therefore

does not run afoul of [§]523(a)(5).” See Debtor’s Complaint at ¶ 5; Defendant’s

Answer to Plaintiff’s Complaint to Determine Dischargeability (the “Mansfield

Answer”), 19-02009-JAD, ECF No. 4, ¶ 5. Ms. Mansfield also wrote in her

Answer that “Debtor seeks to discharge this settlement debt as a mere marital

obligation pursuant to 11 U.S.C. §1328, by means of the super discharge of

marital obligations that are otherwise non-dischargeable pursuant to 11 U.S.C.

§523(a)(15).” Mansfield Answer at ¶ 32.

That, except for applicability of § 523(a)(2), Ms. Mansfield does not

contest the dischargeability of the Mansfield Debt is further supported by the

fact that Ms. Mansfield did not address the first three issues posed by the

Debtor in her Defendant Vicky Mansfield’s Brief in Opposition to Plaintiff

Bradley S. Swiger’s Motion for Summary Judgment (the “Mansfield Brief”). See

19-02009-JAD, ECF No. 45. Instead, Ms. Mansfield opted to solely address the

fourth issue concerning nondischargeability pursuant to § 523(a)(2). Thus, the

entirety of Ms. Mansfield’s opposition to summary judgment concerns the

Debtor’s allegedly fraudulent execution of the Student Loan documents in Ms.

Mansfield’s name alone. See e.g. Mansfield Brief at p. 5 (“Summary Judgment

is not appropriate in this case, because of the dispute over whether Bradley

signed Vicky’s name to the student loans.”)

However, this Court is mindful that the points set forth in the preceding

paragraph could be attributed to the way in which the Debtor phrased the

issues in his Motion for Summary Judgment. In that, the first three issues

were not phrased as specific to this case. Accordingly, Ms. Mansfield will have

further opportunity in these proceedings to address these admissions if she

elects to do so. Likewise, the Debtor will be afforded an opportunity to be

heard as well.

Moreover, even if properly raised before this Court, a final determination

as to dischargeability pursuant to § 523(a)(15) and § 1328(a) would be

premature at this stage of the Debtor’s bankruptcy case. As set forth in this

Court’s opinion in In re Walker:

11 U.S.C. § 1328(a) allows a debtor in a Chapter 13 case to be

discharged from subsection 523(a)(15) debts that would otherwise

be nondischargeable if the debtor’s case were filed under Chapter 7

or 11. As such, once the Debtor completes all payments under a

confirmed Chapter 13 plan [a debt otherwise nondischargeable

under § 523(a)(15)] may be discharged pursuant to the

“superdischarge” provision of 11 U.S.C. § 1328(a).

Corso v. Walker (In re Walker), 439 B.R. 854, 861-862 (Bankr. W.D. Pa.

2010), aff'd sub nom. Corso v. Walker, 449 B.R. 838 (W.D. Pa. 2011).

As it stands, the Debtor is less than two years into his five-year Chapter

13 Plan. See Chapter 13 Plan Dated: November 6, 2018, 18-24109-JAD, ECF

No. 15. Accordingly, whether the Debtor will ultimately be entitled to a

discharge of the Mansfield Debt under § 523(a)(15) will depend on the Debtor’s

successful completion of his Chapter 13 Plan and this basis for discharge is

not yet ripe.

Turning to the fourth issue, dischargeability under 11 U.S.C. § 523(a)(2),

this statutory provision excepts from a discharge granted pursuant to 11

U.S.C. § 1328(b), any debt “for money, property, services, or an extension,

renewal, or refinancing of credit, to the extent obtained by-- (A) false pretenses,

a false representation, or actual fraud, other than a statement respecting the

debtor's or an insider's financial condition[.]”

The Debtor challenges Ms. Mansfield’s standing to pursue the 11 U.S.C.

§ 523(a)(2) claim against him. The Debtor asserts that “The provision excepting

a debt from discharge because it was obtained by ‘false pretenses, a false

representation, or actual fraud’ is only available to individuals who actually

transferred the ‘money, property or services.’ . . . In other words, in this

instance Mr. Swiger had to be the transferor, and he was not.’ ” See Motion for

Summary Judgment at pp. 8-9. In setting forth his position, the Debtor cites to

Hackenberg v. Druckenmiller (In re Druckenmiller), Adv. No. 1:09-ap-00313,

2010 WL 1257353 (Bankr. M.D.Pa. Mar. 26, 2010) and Corso v. Walker, 449

B.R. 838 (W.D.Pa. 2011), which affirmed this Court’s holding in Corso v.

Walker (In re Walker), 439 B.R. 854 (Bankr. W.D. Pa. 2010). However, those

cases do not support the Debtor’s position of non-standing.

The facts and issues of In re Walker, which itself cites In re

Druckenmiller, are nearly analogous to the matter at hand. In Walker the

debtor-wife applied for student loans in the name of her non-debtor husband

for the benefit of their child. In later divorce proceedings, the debtor-wife

agreed pursuant to a marital settlement agreement to pay the student loans

and indemnify the husband. The debtor-wife failed to make the payments and

thereafter, filed for chapter 13 bankruptcy protection. The husband sought a

determination of nondischargeability relevant to the student loan debt under

several theories, including 11 U.S.C. § 523(a)(2). This Court found issue with

the husband’s standing to bring a § 523(a)(2) claim with respect to his

allegations that the debtor-wife failed to disclose the extent of the loans during

negotiation of the settlement, observing that, the plaintiff was not a “transferor”

under the circumstances. See In re Walker, 439 B.R. at 859-860.

Nonetheless, with respect to the husband’s § 523(a)(2) claim based on his

allegations that his ex-wife acted fraudulently in signing his name to the loan

documents without permission, this Court found that in light of the Supreme

Court’s decision in Archer v. Warner, 538 U.S. 314, 123 S.Ct. 1462, 155

L.Ed.2d 454 (2003), the husband was “able to look beyond the [s]ettlement

[a]greement to allege he was defrauded during the original transaction that

gave rise to the [l]oan [d]ebt.” In re Walker, 439 B.R. at 860.

In Archer, the purchasers of a business brought suit in state court

against the sellers alleging fraud. The parties to that litigation settled their

claims with the sellers agreeing to pay the purchasers a certain sum. The

settlement also called for the execution of releases of all claims related to the

litigation, except with respect to the amount payable thereunder. In addition to

releasing “any and every right, claim, or demand” that the purchasers “now

have or might otherwise hereafter have against” the sellers with the exception

of the settlement amount, the releases also provided that the settlement was a

compromise of the disputed claims, that the sellers admitted no guilt and that

the payment was not to be construed as an admission of liability. See Archer,

at 317. Thereafter, the sellers defaulted on their settlement payments and filed

for chapter 7 bankruptcy relief. The purchasers commenced a

nondischargeability action against the sellers, but were unsuccessful as the

majority opinion of the Fourth Circuit Court of Appeals found that the

settlement acted as a novation of the original debt and thus, any debt on the

basis of fraud was replaced by a contractual debt. See Archer, at 318.

The Supreme Court reversed the decision of the Fourth Circuit, observing

that while the settlement agreement may have created a novation, that alone

did not bar the purchasers from “showing that the settlement debt arose out of

‘false pretenses, a false representation, or actual fraud,’ and consequently [was]

nondischargeable, 11 U.S.C. § 523(a)(2)(A).” Archer, at 323. In arriving at its

decision, the majority relied on an earlier Supreme Court decision, Brown v.

Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979).

In Brown, the Supreme Court rejected the contention that res judicata

would prevent a bankruptcy court from looking at the claim which culminated

in a consent judgment to determine dischargeability. “Claim preclusion did not

prevent the Bankruptcy Court from looking beyond the record of the state-

court proceeding and the documents that terminated that proceeding (the

stipulation and consent judgment) in order to decide whether the debt at issue

(namely, the debt embodied in the consent decree and stipulation) was a debt

for money obtained by fraud.” Archer, at 320 (citing Brown, at 138-139).

The Archer Court also found influential the Brown Court’s point that by

changing the nondischargeability provision from excepting only “judgments”

sounding in fraud to all “liabilities[,]” that “ ‘Congress intended the fullest

possible inquiry’ to ensure that ‘all debts arising out of’ fraud are ‘excepted

from discharge,’ no matter what their form.” Archer, at 321 (quoting Brown at

138). Moreover, that:

Congress also intended to allow the relevant determination

(whether a debt arises out of fraud) to take place in bankruptcy

court, not to force it to occur earlier in state court at a time when

nondischargeability concerns “are not directly in issue and neither

party has a full incentive to litigate them.” Brown, 442 U.S., at

134, 99 S.Ct. 2205.

The only difference we can find between Brown and the present

case consists of the fact that the relevant debt here is embodied in

a settlement, not in a stipulation and consent judgment. But we do

not see how that difference could prove determinative. The

dischargeability provision applies to all debts that “aris[e] out of”

fraud. Id., at 138, 99 S.Ct. 2205.

Archer v. Warner, 538 U.S. at 321.

As summarized, it was found that “the mere fact that a conscientious

creditor has previously reduced his claim to judgment should not bar further

inquiry into the true nature of the debt.” Archer, at 320-321 (quoting Brown).

In light of these holdings, this Court in In re Walker stated that:

Therefore, while the Debtor's representations concerning the

Settlement Agreement in which the Plaintiff did not transfer any

“money, property, or services” to the Debtor is of no moment, the

conduct of the Debtor during the original transaction is relevant to

a determination of whether the balance of the Loan Debt was

incurred by fraud.

In re Walker, 439 B.R. at 860.2

2 Beside the fact that this Court is bound by the holdings of the Supreme Court, this

Court also sees the logic behind its decisions in Brown and Archer. In short, if the

Court were prohibited from looking beyond a consent judgment or settlement to

ascertain the nature of the debt any debtor would be able to effectively side-step the

nondischargeability provisions of the Bankruptcy Code by first reducing an otherwise

nondischargeable debt to a contractual settlement debt and then subsequently

discharging that settlement debt in bankruptcy. This would subvert the often-stated

intent of the Bankruptcy Code to provide the “honest, but unfortunate” debtor with

relief in favor of the “deceitful, yet legally cunning” debtor. Moreover, such result

would effectively discourage consensual resolution of claims, resulting in increased

legal costs to all parties and further burdening the state-court system.

On appeal, the District Court agreed with this Court’s findings, stating

that this Court “correctly determined that in light of Archer v. Warner, 538 U.S.

314, 123 S.Ct. 1462, 155 L.Ed.2d 454 (2003), § 523(a)(2)(A) potentially covered

claims of fraud or false representations committed during an initial transaction

or a later settlement agreement resolving a prior fraud claim.” Corso v. Walker,

449 B.R. at 848.

On his end, the Debtor recognizes the Archer holding, and even appears

to acknowledge its effect on his standing argument. In continuation of the

Debtor’s standing argument quoted above, the Debtor, citing to Archer, wrote:

“In other words, in this instance Mr. Swiger had to be the transferor, and he

was not. That being the case §523(a)(2) would not apply and the debt would be

dischargeable. However, Ms. Mansfield is permitted to look outside the

boundaries of any marital property settlement agreement and scrutinize the

conduct of Mr. Swiger to determine whether the debt was obtained by fraud.”

Motion for Summary Judgment at p. 9.

Nonetheless, the Debtor avers that Archer is distinguishable from the

matter at hand, arguing that:

In Archer, the settlement agreement made no reference to the issue

of fraud, and therefore, the Court permitted further inquiry on that

particular issue. However, in this case the issue of fraud was

resolved at the time of the settlement and no further inquiry

should be allowed. Paragraph 19 of Ms. Mansfield’s Adversary

Complaint states that the settlement agreement settles all claims

in the divorce action and Ms. Mansfield’s claims against the Debtor

“relating to his misrepresentation with regard to the children’s

student loans.” (See, Mansfield Complaint, Appendix U) Further,

the Consent Order dated May 16, 2016 states that this is a “full

and final settlement of all claims and that there are no other

outstanding claims between the parties.” (See, Consent Order,

Appendix Q)

Therefore, it is not necessary to have any further inquiry because

all claims have been settled, including any potential claim of fraud.

Motion for Summary Judgment at p. 9.

The Court takes the Debtor’s position two-fold. First, that the Consent

Order herein is distinguishable because the Archer settlement made no

reference to the fraud claims. Second, that the “full and final settlement”

language cuts off the Court’s ability to look beyond the language of the Consent

order.

As to the first argument, the Court fails to see the merit of the Debtor’s

argument largely because the Consent Order does not actually reference a

fraud claim. Although the Debtor acknowledges that the issue of fraud was

resolved by the Consent Order, a reading of the face of the Consent Order does

not divulge that information. This Court fails to see how the matter at hand is

distinguishable from Archer. Moreover, even if the fraud claim was resolved on

the face of the Consent Order, the Debtor fails to fully articulate the relevance

and legal effect, if any.

As to the second argument, this Court also finds no distinction between

this case and Archer as the settlement agreement in Archer was also

accompanied by broad releases to “any and all claims,” with the exception of

the settlement amount. See Archer, at 317. However, to the extent there is a

distinction, the Debtor fails to sufficiently articulate his argument.

Accordingly, for purposes of summary judgment the Debtor has failed to

show that Archer is inapplicable. As such, inquiry into the Debtor’s allegedly

fraudulent conduct in applying for the Student Loans forming the basis of the

Mansfield Debt is permitted in this matter.

Consequently, resolution of this adversary proceeding will turn on the

facts proven and the application of both § 523(a)(2) and the case law

interpreting it. See e.g., Husky Int’l Electronics, Inc. v. Ritz, __ U.S. __, 136

S.Ct. 1581, 194 L.Ed.2d 655 (2016); Field v. Mans, 516 U.S. 59, 116 S.Ct. 437,

133 L.Ed.2d 351 (1995); McClellan v. Cantrell, 217 F.3d 890 (7th Cir. 2000);

Compton v. Moschell (In re Moschell), 607 B.R. 487 (Bankr. W.D. Pa. 2019);

and Elliott v. Kiesewetter (In re Kiesewetter), 391 B.R. 740 (Bankr. W.D. Pa.

2008).

The parties have submitted numerous pleadings, exhibits, and affidavits

in support of their conflicting positions. Without providing a full accounting or

recitation of the filings, this Court is satisfied that genuine issues of material

fact exist as to the claim based on actual fraud. This Court’s conclusion is

particularly acute since the pleadings are not robust enough for the Court to

make a finding as to the Debtor’s motive or state of mind (which is required in

cases predicated on “actual fraud”). See e.g., Rosen v. Bezner, 996 F.2d 1527

(3d Cir. 1993)(reversing grant of summary judgment when case concerned

defendant’s motive or intent). Accordingly, the Debtor is not entitled to

judgment as a matter of law on the § 523(a)(2) claim.

Before concluding, in the Debtor’s Reply Brief to Brief in Opposition to

Debtor’s Motion for Summary Judgment (ECF No. 50), the Debtor argues that

Ms. Mansfield’s use of an affidavit by the Parties’ daughter, Amanda Swiger,

should not be permitted because it was procured after the close of discovery.

See ECF No. 50 at pp. 5-6. In particular, the Debtor points out that Amanda

Swiger’s affidavit, dated October 30, 2019, was taken after the averred August

1, 2019 discovery deadline. This Court notes the irony in the Debtor’s position

regarding Amanda Swiger’s affidavit as in the very same pleading the Debtor

attaches for the Court’s consideration a communication from the Federal

Student Aid Student Loan Support Center dated November 20, 2019. See

Debtor’s Reply Brief, ECF No. 50, pp. 8-9, and Debtor’s Reply Brief Appendix,

ECF No. 50-2, pp. 2-3.

Nonetheless, given that almost eight months have elapsed since the filing

of the documents in question, and since the parties have had ample

opportunity to put them into perspective, neither party is prejudiced by the

Court’s due consideration of the referenced evidence in connection with

rendering its decision today.3 Accordingly, the Debtor’s objection to the

introduction of Amanda Swiger’s affidavit is overruled.

3 The hearing on the Motion for Summary Judgment was originally scheduled for

October 16, 2019. The hearing was continued several times both by request of the

Parties and by this Court’s initiative. See Various Orders at ECF Nos. 36, 42, 51, 53,

55, and 57. With the emergence of the COVID-19 pandemic, the hearing was once

again continued from May 1, 2020 until August 5, 2020. Upon reviewing the

submissions of the Parties, the Court has concluded that no argument is necessary

regarding the Motion for Summary Judgment. Given the Court’s decision herein, the

August 5, 2020 hearing shall be a status conference, at which time the Parties will be

IV.

Conclusion

For the foregoing reasons, the Court shall enter an order denying the

Debtor’s Motion for Summary Judgment (ECF No. 33) and scheduling further

proceedings consistent with this Memorandum Opinion.

Dated: July 24, 2020 Se 2

Jeffery A. Deller,

United States Bankruptcy Judge

Case Administrator to Serve:

FILED

Debtor 7/24/20 1:34 pm

Rodney D. Shepherd, Esq. CLERK

Mary Bower Sheats, Esq. U.S. BANKRUPTCY

Rhonda J. Winnecour, Trustee COURT - WDPA

expected to address the timing and mechanics of the trial of this matter in light of the

global health emergency.

18