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Getting the error: "duplicate value found
duplicates value on record with id:
" when importing Quotas (Customizable Forecasting)
|Knowledge Article Number
When a user attempts to Import Quotas (RevenueForecast object available when using Customizable Forecasting) via the API using the Apex Data Loader, some of the updates work properly but other's error out with a message "duplicate value found: <unknown> duplicates value on record with id: <unknown>." In some circumstances the insert/update/upsert appears to work properly. However when the User record detail page is viewed, the corresponding Quota values are not visible.
|In order to update Quota information you will need to have the Revenue Forecast ID. However RevenueForecast records are not created by default when Customizable forecasting has been enabled. They are created when you edit and save a quota value for a specific period.
If Quota values have been edited or populated for Users/Periods when an Upsert/Insert operation is performed on the RevenueForecast table, the Quota's that previously existed will error out.
In order to update the Quota values for RevenueForecast records that currently exist, the user will need to add the RevenueForecast Id to the records which threw the error and then run an additional update operation.
In some circumstances it may be easier to start with a new Update file that already contains the Revenue Forecast Id's and populate the Quota information accordingly.
We can ensure that Revenue Forecast records exist for every period/user by creating a csv file which contains User Id, the Start Date for each period, and the Quota value for that given period.
Note: If you are utilizing Multiple Currencies you may need to specify the CurrencyISOCode column and populate it with the corresponding currency for the Quota values. If CurrencyISOCode is not specified the currency will be imported as the organizations standard currency.
Using this file run an insert operation on the Revenue Forecast table mapping the User Id, Quota, and Start Date columns in your file to the associated Salesforce fields.
During this operation you may receive errors such as "duplicate value found: <unknown> duplicates value on record with id: <unknown>" . This means that Revenue Forecast records for those given User ID and Period combinations already exist in Salesforce. You can ignore these errors. The remaining insert operations should be a success with a message that reads "Item Created" which indicates that Revenue Forecast records for those User Id and Period combinations have been created in Salesforce.
Now you should be able to run an export on the RevenueForecast table, which will include all of the User Id and Period combinations with their respective RevenueForecast ID's (which will show as Id on the table).
Note: The export results will only include previously created records and those which were created via the insert operation above. It is also recommended that you include the Startdate field for easier reference when working with the file. Optionally, you can also run an export on the User table including User Id's and Names. You can then use this file to populate a name column in your RevenueForecast Export File using Excel's Vlookup functionality this will allow you to reference name's rather than User Id's when working with the file.
Finally, use this file as the basis for populating the corresponding user's Quota amounts for the given periods. Using the updated file run an Update operation on the RevenueForecast table mapping Revenue Forecast ID to the Id column and Quota to Quota column in your export file. Note: You made need to map your CurrrencyISOcode column if you use multiple currencies. This will allow you to wholly populate all Quota amounts for affected users.

subset: commoncrawl


text:
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Hotfrog Canada provides information regarding Bijouterie Lavigne in Montreal QC. Bijouterie Lavigne is located at 8629 Rue Hochelaga, Montreal QC H1L 2M5 and provides Retail services. Contact them on (514) 353-0150 or by visiting them on their website http://www.said-joaillier.com.
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United States District Court, M.D. Pennsylvania
September 26, 2014
STEVEN S. BOCCHINO, Appellant,v.UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Appellee.
JAMES M. MUNLEY, District Judge.
Before the court for disposition is Appellant Steven S. Bocchino's appeal of Bankruptcy Judge John J. Thomas's decision issued on December 23, 2013. The matter has been fully briefed and is ripe for disposition. For the reasons stated below, the appeal will be DENIED.
In 1996, Appellant Bocchino worked as a stockbroker and general securities representative at M.A. Gillespie.[1] His superior at the time, Americo "Ricky" Gallo, alerted Bocchino to a private subscription offering for a company known as Traderz Associates Holding, Inc. (hereinafter "Traderz") that was potentially going public. Gallo told Bocchino that he would receive a commission on any investments his clients made in Traderz. Without performing any due diligence of his own, Bocchino immediately began contacting his clients and selling them a private investment in Traderz with the pitch that much money could be made in the investment.
To secure these sales, and the concomitant commissions, Bocchino made various statements, including that a model named Niki Taylor was involved with the company, with whom the public could communicate online about fashion tips and her line of clothing. (Doc. 3, Bankruptcy Court Trial Transcript at 28-29.) He asserts that at the time he believed none of the statements were untrue. Bocchino, however, had made no investigation of whether Traderz was incorporated, had bank accounts, or even an office. He relied solely on Gallo's minimal representations. Bocchino's clients paid over $30, 000 for Traderz subscriptions, and Bocchino received over $40, 000 directly from Traderz in commissions and bonuses.
Subsequently, Bocchino received a "tip" from an associate, Daniel Coyle, regarding investments in a second company, Fargo Holdings, Inc. (hereinafter "Fargo"). Bocchino testified that he received some "documentation" from Coyle, and that he met a day trader from Fargo, though his testimony conflicted as to whether he met that trader before or after he started soliciting his clients. Despite the fact that Bocchino, again, had not conducted any of his own due diligence, he began selling the Fargo stock, telling his clients that they would make money if they invested in the company. Relying on his statements, Bocchino's clients purchased over $55, 000 worth of Fargo stock, for which Bocchino received $14, 000 in cash commissions.
Sometime thereafter, Bocchino received information that Fargo might not be a legitimate enterprise, and he then began to investigate the company. Ultimately, the principals of both Traderz and Fargo were subject to criminal judgments for illegal activities related to their respective companies. The Traderz subscriptions became worthless, and Fargo disappeared.
In the early 2000s, the Securities and Exchange Commission (hereinafter "SEC") brought civil actions in federal district court against Bocchino and others related to Traderz and Fargo. See SEC v. Goldman Lender & Co. Holdings, et al., 98-CV-7525 (JGL) (S.D.N.Y.) (regarding Traderz); SEC v. Nnebe, et al., 01-CV-5247 (KMW) (S.D.N.Y.) (regarding Fargo). As a result of default judgments in both actions, Bocchino was ordered to pay: (1) $84, 959.70 in the Traderz action, including $35, 090 in disgorgement, $14, 779.70 in prejudgment interest, and a $35, 090 civil penalty to the SEC; and (2) $94, 007.85 in the Fargo matter, including $14, 800 in disgorgement, $4, 207.85 in interest, and a $75, 000 civil penalty to the SEC.
On March 2, 2009, Bocchino filed a petition for bankruptcy under Chapter 13 of the U.S. Bankruptcy Code (Title 11 U.S.C.). The SEC filed Adversary Proceeding 5:09-ap-00267-JJT under 11 U.S.C. § 523(a)(2)(A) on July 17, 2009, objecting to the discharge of the debt owed to the SEC pursuant to the two district court judgments. The parties disputed whether Bocchino obtained the funds owed to the SEC by fraud. If he did, the debts could not be discharged. A trial was held on that issue on January 23, 2013. Bocchino and one other person testified, and exhibits, including multiple depositions, were entered into the record.
On December 23, 2013, the bankruptcy court issued an Opinion and Order ruling in favor of the SEC. (Doc. 2-6.) The court found that though Bocchino did not knowingly make any false statements in selling the Traderz and Fargo investments, his conduct was grossly reckless and he was indifferent to the truth of his statements. Therefore, Bocchino acquired the funds by fraud, and, the bankruptcy court held, § 523(a)(2)(A) applied, rendering the debt non-dischargeable.[2] On January 6, 2014, appellant filed a motion to reconsider, which the bankruptcy court denied on February 19, 2014. Appellant filed notice of appeal to this court on March 5, 2014.
This court has jurisdiction over the instant bankruptcy appeal pursuant to 28 U.S.C. § 158(a)(1), which provides that the district courts of the United States have jurisdiction to hear appeals from final judgments, orders, and decrees of the bankruptcy courts.
Standard of Review
A district court reviews the bankruptcy court's decisions of law de novo . In re O'Brien Envtl. Energy, Inc. , 188 F.3d 116, 122 (3d Cir. 1999). The bankruptcy court's findings of fact will only be set aside if clearly erroneous. FED. R. BANKR. P. 8013 ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses."); In re O'Brien , 188 F.3d at 122.
Appellant asserts two issues on appeal. First, he argues that the bankruptcy court applied an incorrect standard in basing a finding of fraud (and hence non-dischargeability) on appellant's extreme and reckless indifference to the truth of his statements, rather than requiring actual knowledge of their falsity and intent to deceive. Second, appellant contends that the bankruptcy court erred in finding that his actions were the proximate cause of his clients' losses. The court will address these issues in turn.
A. 11 U.S.C. § 523 - Exceptions to Discharge
Before the bankruptcy court, Appellee, the SEC, successfully invoked § 523(a)(2)(A) to prevent the discharge of debts for money it claims was obtained by appellant through fraud. Section 523(a)(2)(A) renders debts for money obtained by "false pretenses, a false representation, or actual fraud" non-dischargeable under the Bankruptcy Act. This rule is in line with the policy goals of U.S. bankruptcy law, which exists "to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy a new opportunity in life...." Grogan v. Garner , 498 U.S. 279, 286 (1991); see also Schwab v. Reilly , 560 U.S. 770, 791 (2010). The § 523 exceptions are designed to limit that opportunity for a fresh start to the "honest but unfortunate debtor, " for whom bankruptcy is intended. Grogan , 498 U.S. at 286-87; In re Bogan , 302 B.R. 524, 529 (Bankr. W.D. Pa. 2003).
The creditor "has the burden of proving beyond a preponderance of the evidence" that his claim comes within an exception to discharge. In re Bryen, 449 F.Appx. 165, 167 (3d Cir. 2011). "Exceptions to discharge are narrowly construed to further the Bankruptcy Code's fresh start' policy[.]" In re White , 128 F.Appx. 994, 998 (4th Cir. 2005) (citing Grogan at 286). The exceptions, however, are to be enforced where appropriate "to make certain that those who seek shelter of the bankruptcy code do not play fast and loose with their assets or with the reality of their affairs." Palmacci v. Umpierrez , 121 F.3d 781, 786 (1st Cir. 1997). By ensuring that debts for money obtained through bad acts cannot be wiped clean in bankruptcy, § 523(a)(2) prevents wrongdoers from pressing the law into service as an accessory after the fact in retaining their ill-gotten gains.
B. Recklessness is sufficient for a finding of fraud.
As a preliminary matter, appellant does not contest the bankruptcy court's factual findings. Therefore, we accept the facts as true. The bankruptcy court found that appellant's failure to perform any due diligence before selling the investments constituted extreme and reckless indifference to his duty as a fiduciary to "conduct independent investigation into the quality of the product he was selling." (Doc. 2-6, Opinion of the Bankruptcy Court (hereinafter "Op.") at 7).
The appellant instead argues that his misrepresentations, which were the product of his gross and egregious recklessness, do not satisfy the required elements for a claim under § 523(a)(2)(A). Though appellant acknowledges at the outset that "an intent to deceive may be found upon a finding of recklessness, " he, somewhat confusingly, argues that "actual wrongful intent to deceive" is also required. Both statements, however, cannot be true; we will therefore review the bankruptcy court's decisions of law de novo .
As previously stated, § 523(a)(2)(A) renders debts for money obtained by "false pretenses, a false representation, or actual fraud" non-dischargeable under the Bankruptcy Code. The court can find, and the parties have identified, no precedent binding on this court on the question of whether § 523(a)(2)(A) requires a showing of actual knowledge of falsity and intent to deceive. The Third Circuit Court of Appeals has not yet addressed this issue, although other district courts within the Third Circuit have, and they are persuasive. Still, we approach this as a question of first impression.
The bankruptcy court found guidance in the Supreme Court's recent opinion in Bullock v. BankChampaign, N.A. , 133 S.Ct. 1754 (2013). While, as the bankruptcy court acknowledges, Bullock involved § 523(a)(4) and not § 523(a)(2)(A), we agree that the Court's reasoning is instructive. Section 523(a)(4) provides that an individual cannot obtain a bankruptcy discharge from a debt "for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." In an opinion delivered by Justice Breyer, a unanimous Court held that the term "defalcation" in § 523(a)(4) "includes a culpable state of mind requirement akin to that which accompanies application of the other terms in the same statutory phrase, " including fraud. Id . The Court defined that state of mind as "one involving knowledge of, or gross recklessness in respect to, the improper nature of the relevant fiduciary behavior." Id.
Here, the bankruptcy court looked to Justice Breyer's examination of "intentional" conduct where "actual knowledge of wrongdoing is lacking." Id. at 1759-60. "We include as intentional not only conduct that the fiduciary knows is improper but also reckless conduct of the kind that the criminal law often treats as the equivalent." Id . In other words, the Supreme Court held that the culpable state of mind required to prove fraud and defalcation by a fiduciary is satisfied by a finding of recklessness, at least for the purposes of one exception to bankruptcy dischargeability. We find this persuasive in examining the identical term - fraud - in a similar exception to dischargeability.
We next look to the Third Circuit Court of Appeals. Again, no case is squarely on point, but we find Insurance Company of North America v. Cohn (In re Cohn) , 54 F.3d 1108 (3d Cir. 1995) to be instructive. In Cohn, the court examined the same question we have before us, but with respect to § 523(a)(2)(B), which prevents the discharge of funds obtained by use of certain materially false written statements. This provision contains an express "intent to deceive" requirement in the statutory language, which its companion provision, § 523(a)(2)(A), does not. The Cohn court held that a "creditor can establish intent to deceive by proving reckless indifference to, or reckless disregard of, the accuracy of the information in the financial statement of the debtor when the totality of the circumstances supports such an inference." Cohn , 54 F.3d at 1119. This standard of proof is utilized because of the evidentiary challenges inherent in proving the intent element:
We acknowledge that because a debtor will rarely, if ever, admit that deception was his purpose, this fourth element of § 523(a)(2)(B) is extremely difficult for a creditor to prove by direct evidence. Thus, we join with other courts, including the Courts of Appeals for the Sixth, Tenth, and Eleventh Circuits, in holding that the intent to deceive can be inferred from the totality of the circumstances, including the debtor's reckless disregard for the truth.
Id. It is worth noting that the Court of Appeals came to this conclusion long before Bullock, though the reasoning is similar.
The court finds this reasoning to be as applicable to § 523(a)(2)(A) as to § 523(a)(2)(B). Other courts in this Circuit have already accepted this reasoning. See In re Purington, No. 12-4135, 2013 WL 3442893, at *2-3 (D.N.J. July 9, 2013); In re Pandolfelli, Nos. 11-579, 11-5231, 11-7031, 2012 WL 503668, at *7 (D.N.J. 2012); Starr v. Reynolds , 193 B.R. 195, 200 (D.N.J. 1996). The standard that has developed for establishing a claim under § 523(a)(2)(A), is that a party must show each of the following elements:
(1) that the debtor obtained money, property or services through a material misrepresentation; (2) that the debtor, at the time of the transaction, had knowledge of the falsity of the misrepresentation or reckless disregard or gross recklessness as to its truth; (3) that the debtor made the misrepresentation with intent to deceive; (4) that the plaintiff reasonably relied on the representation; and (5) that the plaintiff suffered loss, which was proximately caused by the debtor's conduct.
In re Purington, 2013 WL 3442893 at *2-3. The Purington court explains that the third prong of the test can be satisfied by reckless disregard for the truth. Id.
Appellant directs the court's attention to In re White , 128 F.Appx. 994 (4th Cir. 2005). The Court of Appeals for the Fourth Circuit held that a fraudulent misrepresentation is proven if the debtor's representation was either "known to be false or recklessly made without knowing whether it was true or false." Id. at 9-10. Likewise, the White court found that "[a] showing of reckless indifference to the truth is sufficient to demonstrate the requisite intent to deceive." Id. at 11. Echoing the Third Circuit's reasoning in In re Cohn, the court explained that evidence of recklessness was sufficient to prove knowledge and intent because "a debtor will rarely, if ever, admit to acting with an intent to deceive, [so] intent may be inferred from the totality of the circumstances." Id.
In re White is especially instructive in this case because the White court reviewed whether a debt was non-dischargeable under § 523(a)(2)(A). As in the case before us, the bankruptcy court in White made a finding that the debtor had made representations with reckless disregard for their truth, and held that that was sufficient to prove the intent requirement. 128 F.Appx. at 1001. The district court reversed, based on what the Court of Appeals called an improper " de novo review of the [factual] record." Id . The Court of Appeals, finding no clear error in the bankruptcy court's findings of fact, then reversed the district court and reinstated the bankruptcy court's finding that the debt was not dischargeable. Id. at 1002-03. The Fourth Circuit did not disturb the bankruptcy court's legal conclusion that a debtor's recklessness was a sufficient foundation upon which to conclude there was an intent to deceive.
Appellant also relies on two bankruptcy court cases that he argues demonstrate a hard and fast requirement for a court to find actual intent to deceive, as opposed to mere recklessness. Neither of these cases is relevant to the matter at bar. In In re Styer, Case 08-02096, Doc. 125 (Bankr. E.D. Pa. 2013), the debtor was found to have credibly testified that she had an affirmative belief in the value of the wrap mortgage investment she sold, demonstrating detailed knowledge about the product. Id. at 20-22. Further, the debtor in Styer had invested in the product herself, and she and her family lost a substantial amount of money. Id. at 22. Most importantly, the creditors in that case did not argue, and the bankruptcy court never found, that the debtor's actions were reckless. If her misrepresentations had been reckless, then the court might have considered whether that finding satisfied the intent element of § 523(a)(2)(A). For these reasons, Styer is not helpful.
Appellant next points to In re Peak, Case 12-00126-8-ATS, Doc. 47 (Bankr. E.D. N.C. 2013). This case is similarly irrelevant. As in Styer, the Peak court never discussed recklessness, and merely found that the plaintiffs had not met their burden to prove knowledge or intent. Id. at 7. The court did not consider whether knowledge and intent can be proven by recklessness.
Further, the debtor in that case was a homebuilder who essentially had gotten in over her head with respect to an investment offering related to her company that she did not fully understand. Id. at 5-6. She had no experience or expertise in financial offerings, and her actions did not approach the "gross recklessness" found in Mr. Bocchino's dealings. Therefore, Peak is distinguishable on both its facts and legal reasoning.
The appellant places great emphasis on a statement in the bankruptcy court's opinion, "Bocchino did not knowingly make any false statements." (Op. at 2). But, as appellant himself acknowledges, a finding of intent to deceive can be based on recklessness. That the bankruptcy court did not find actual knowledge and direct proof of intent to deceive does not, as appellant urges, end the inquiry. For the reasons articulated above, it merely refocuses the analysis on appellant's gross and egregiously reckless disregard for the truth.
The court is persuaded by the reasoning articulated by the Supreme Court in Bullock, the Third Circuit Court of Appeals in In re Cohn, and the Fourth Circuit in In re White. To give full effect to the policy goals underlying the Bankruptcy Code and the exceptions to discharge contained therein, we hold that a finding that a debtor made a material misrepresentation with reckless disregard for the truth is sufficient to prove that the misrepresentation was made knowingly and with intent to deceive for the purposes of § 523(a)(2)(A). The bankruptcy court did not err in applying this standard.
C. Appellant's Fraud was a Proximate Cause of his Clients' Losses
The fifth element that a creditor must prove to invoke the exception to dischargeability in § 523(a)(2)(A) is "that the plaintiff suffered loss, which was proximately caused by the debtor's conduct." In re Purington, 2013 WL 3442893 at *2-3. Appellant argues that the losses suffered by his clients as a result of the failure of their investments were not proximately caused by his fraudulent misrepresentations. Among appellant's reasons for this assertion are: (1) the losses were caused by the "defalcation of the principals of both Traderz and Fargo, both of whom received criminal sentences"[3]; (2) Bocchino had direct access to the principal of Traderz; and (3) after selling the investments without performing any prior research, Bocchino eventually did obtain some information on both companies. The court disagrees.
"Proximate cause" is a legal term of art, and the proximate cause requirement of § 523(a)(2)(A) has been likened to the term's use in the realm of tort law. See Archer v. Warner , 538 U.S. 314, 325-26 (2003) (Thomas, J., dissenting); In re Britton , 950 F.2d 602, 604 (9th Cir. 1991); In re Karpo, 2011 Bankr. LEXIS 2881, 25-26 (Bankr. D.N.J. July 22, 2011).
Writing in the context of § 523(a)(2), Justice Thomas wrote in Archer v. Warner that the Supreme Court:
has been less than clear with respect to the requirements for establishing proximate cause. In the past, the Court has applied the term "proximate cause' to label generically the judicial tools used to limit a person's responsibility for the consequences of that person's own acts." Holmes v. Securities Investor Protection Corporation , 503 U.S. 258, 268 (1992). The Court has explained that, "at bottom, the notion of proximate cause reflects ideas of what justice demands, or of what is administratively possible and convenient.'" Id . (quoting W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 41, p. 264 (5th ed. 1984)); see also Palsgraf v. Long Island R. R. Co. , 248 N.Y. 339, 352 (1928) (Andrews, J., dissenting) ("What we do mean by the word proximate' is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point"). While the concept of proximate cause is somewhat amorphous, see Keeton 279, the common law is clear that certain intervening events - otherwise called "superseding causes" - are sufficient to sever the causal nexus and cut off all liability. See Exxon Co., U.S.A. v. Sofec, Inc. , 517 U.S. 830, 837 (1996) ("The doctrine of superseding cause is... applied where the defendant's negligence in fact substantially contributed to the plaintiff's injury, but the injury was actually brought about by a later cause of independent origin that was not foreseeable" (quoting 1 T. Schoenbaum, Admiralty and Maritime Law § 5-3, pp. 165-166 (2d ed. 1994))); 57A Am. Jur. 2d Negligence § 790 (1989) ("The intervention, between the negligence of the defendant and the occurrence of an injury to the plaintiff, of a new, independent, and efficient cause, or of a superseding cause, of the injury renders the negligence of the defendant a remote cause of the injury, and he cannot be held liable, notwithstanding the existence of some connection between his negligence and the injury").
538 U.S. at 325-26.
It has been said that proximate cause depends upon whether the conduct at issue was significant and important enough to hold the defendant legally responsible, "[b]ut both significance and importance turn upon conclusions in terms of legal policy, so that they depend on whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred." In re Britton , 950 F.2d at 604-05 (citing W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 42 at 273 (5th ed. 1984)).
Here, Bocchino sold investments to his clients, who relied upon his representations that those investments would produce profit. Bocchino had done no research into the companies whose investments he sold, and had no basis upon which to make the representations he did. His clients relied on his statements, along with his expertise and position as fiduciary, in buying the investments. The investments then failed, and the clients suffered losses. These facts are not disputed on appeal.
Appellant argues that the crimes committed by the principals of Traderz and Fargo were the proximate cause of his clients' losses, and therefore his own reckless misrepresentations could not have been the proximate cause of those losses. This argument ignores the well-established legal rule that there can be more than one proximate cause of an event. See, e.g., Staub v. Proctor Hosp. , 131 S.Ct. 1186, 1192 (U.S. 2011) ("[I]t is common for injuries to have multiple proximate causes.").
What appellant may be asserting is that the crimes of Traderz's and Fargo's principals were superseding causes that severed the causal relationship between his recklessness and his clients' losses. This assertion is misplaced, because the bad acts of the companies' principals were a reasonably foreseeable possibility when appellant decided to sell the investments without due diligence. "The doctrine of superseding cause is... applied where the defendant's negligence in fact substantially contributed to the plaintiff's injury, but the injury was actually brought about by a later cause of independent origin that was not foreseeable." Exxon Co., U.S.A. v. Sofec, Inc. , 517 U.S. 830, 837 (1996). It is entirely foreseeable that a company's executives may act in bad faith, causing losses to investors. Indeed, the diligence appellant should have performed, had he not recklessly failed to do so, would have included a search for indications of the potential for such bad faith acts on the part of the offering company.
Moreover, while the crimes that the companies' principals committed certainly constitute a proximate cause of the losses incurred by their investors, that does nothing to change the fact that it was appellant, through his reckless misrepresentations, who caused his clients to be among that unfortunate group. In this respect, appellant's reliance on In re Moon , 1997 WL 3425685 (Bankr. E.D. Va. 1997) is misplaced. In that case the court concluded that the evidence did not support a finding of proximate causation. The court said that even without the misrepresentations of the debtor, the creditor "would have received the same poorly built house." Id. at 17. In the case at bar, however, nothing before the court indicates that Bocchino's clients, though they may have purchased some investment, would have purchased the offerings from Traderz and Fargo even absent Bocchino's reckless misrepresentations. Therefore, those misrepresentations, that is to say, Bocchino's fraud, caused his clients' losses.
Appellant next argues that because he had direct access to the principal of Traderz, which, he asserts, means he "was able to establish, at very least [sic], to the best of his knowledge, that the principal had the wherewithal, financially and experience-wise, to accomplish the goals of the organization.'" This fact is irrelevant to the proximate cause analysis. Appellant is merely attempting to re-litigate the bankruptcy court's finding that appellant's conduct constituted recklessness. This conclusion is a factual finding, and we find no clear error in that finding.
Appellant's final argument is the most confounding. Appellant asserts that proximate cause cannot be found because after selling the investments without performing any prior research, appellant eventually did obtain some information on both companies. He cites no authority for this proposition, that somehow post hoc due diligence absolves the recklessness with which the initial sale was made. He argues that because this diligence was performed sometime before the criminal acts of the companies' principals led to the failure of the investments, that means that Bocchino had, at that time, "a sufficient basis to attempt to sell interests in the enterprise." What this logically-gymnastic argument elides is the fact that since he had already sold the investments by that time, this new-found knowledge as to the investment products did absolutely nothing to remove his clients from harm's way. As we said above, Bocchino's recklessness caused his clients to purchase the investments; that he became less reckless after that sale did not change the fact that his clients still owned the investments. So it cannot possibly have retroactively undone the causal nexus.
Appellant highlights Bocchino's own testimony that "[a]t least with regard to Traderz, Bocchino advocated that funds be returned to at least one investor." (See Bankruptcy Court Transcript, Doc. 3, at 66). Self-serving, uncorroborated testimony notwithstanding, this statement only trains a spotlight on all the clients Bocchino did not seek to use his belated knowledge to help. Regardless of any research he conducted after the fact, it was still Bocchino's reckless misrepresentations that proximately caused his clients to purchase the investments, and therefore to suffer losses.
For the reasons stated above, the court holds that the bankruptcy court correctly found that the debts for funds appellant gained by fraud, enumerated in the underlying civil judgments, are not dischargeable under § 523(a)(2)(A). The bankruptcy court's decision will therefore be AFFIRMED, and appellant's appeal will be DENIED. An appropriate order follows.
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August 3, 1994
Appeal from the Circuit Court of Cook County. Honorable James G. Donegan, Judge Presiding.
Released for Publication September 13, 1994.
Greiman, Tully, Cerda
JUSTICE GREIMAN delivered the opinion of the court:
In determining the amount of child support payable by Respondent, Gary McLaughlin, to Petitioner, Margaret McGowan, the trial court excluded from the statutory guidelines provided in the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/101 et seq. (West 1992)) certain allowances paid to Respondent by reason of his employment as an active member of the United States armed forces. The trial court also provided a plan for Respondent to pay the arrearage for medical expenses incurred on behalf of the parties' minor child.
Petitioner contends on appeal: (1) the trial court should have included Respondent's military allowances or benefits in determining the amount of child support; and (2) the installment plan for the satisfaction of the arrearage is improper since it requires an interest rate to be imposed upon the balance due from time to time and mandates an excessive period for the payment of the obligation.
We reverse as to the trial court's failure to include the allowancesin the computation of child support, and affirm as to the Disposition of the arrearage.
This opinion is filed pursuant to the provisions of Illinois Supreme Court Rule 23(a)(1). Official Reports Advance Sheet No. 15 (July 20, 1994), R.23, effective July 1, 1994.
In addition to a soldier's base pay, Congress has provided an allowance for quarters to supplement off-base housing expenses (BAQ), a variable housing allowance (VHA) and a basic allowance for subsistence (BAS). The record shows that all of Respondent's military allowances added to his base pay minus his income tax deductions provide him with a monthly income of $2,206.36, which would yield a monthly child support obligation of $441.27 for his and Petitioner's minor child under the relevant statutory guidelines which establish child support payments amounting to 20% of the payor's net income for a single child. (750 ILCS 5/105(a)(1) (West 1992).) The trial court, however, determined Respondent's child support obligation by subtracting his BAQ, VHA and BAS allowances and deducting for taxes to reduce the amount of child support to $282 a month.
The Act defines "net income" in an all-inclusive manner and then specifies the sums excluded from the formula. Section 505(a)(3) of the Act provides:
"(3) 'Net income' is defined as the total of all income from all sources, minus the following deductions:
(a) Federal income tax (properly calculated withholding or estimated payments);
(b) State income tax (properly calculated withholding or estimated payments);
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions required by law or a condition of employment;
(e) Union dues;
(f) Dependent and individual health/hospitalization insurance premiums;
(g) Prior obligations of support or maintenance actually paid pursuant to a court order;
(h) Expenditures for repayment of debt that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period." (Emphasis added.) (750 ILCS 5/505(a)(3) (West 1992).)
Courts are required to give the language employed by the General Assembly in the enactment of a statute its plain and ordinary meaning. (See Scadron v. City of Des Plaines (1992), 153 Ill. 2d 164, 185, 606 N.E.2d 1154, 180 Ill. Dec. 77.) Hence, the Act's reference to "all sources" must be given effect to include military allowances in the computation of child support.
Moreover, we recognize that the Act has been broadly interpreted to include as income the lump sum settlement from a workers' compensation injury ( In re Marriage of Dodds (1991), 222 Ill. App. 3d 99, 583 N.E.2d 608, 164 Ill. Dec. 692); income from investments as well as bonuses from a closely-held corporation ( In re Marriage of Olson (1992), 223 Ill. App. 3d 636, 585 N.E.2d 1082, 166 Ill. Dec. 60); and passive income from bonds and securities ( In re Marriage of Harmon (1991), 210 Ill. App. 3d 92, 568 N.E.2d 948, 154 Ill. Dec. 727). The courts have also determined "income" includes the availability of additional spendable funds due to a spouse's income ( In re Marriage of Keown (1992), 225 Ill. App. 3d 808, 587 N.E.2d 644, 167 Ill. Dec. 375); and non-recurring income is not deductible from net income ( In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 551 N.E.2d 737, 141 Ill. Dec. 550).
We also recognize, however, that the Act contemplates circumstances which dictate that a court exercise its discretion to employ less than the statutory guidelines with regard to "net income." In those cases, the court must articulate its reasons in writing. (750 ILCS 5/505(a)(2) (West 1992).)
For example, if the allowance granted is predicated upon the cost of living at the soldier's station, the court can consider whether he or she requires the entire amount to satisfy housing or other needs. In this regard, the court might determine whether the soldier shares his or her housing expenses with another person.
While this is a case of first impression in Illinois, it is not the first time courts have considered military allowances or entitlement in fixing child support. At least six states have previously addressed this issue and reached Conclusions consistent with the majority.
Five states have determined that military allowances are a species of renumeration subject to child support payments. ( Alexander v. Armstrong (1992), 415 Pa.Super. 263, 609 A.2d 183; Hautala v. Hautala (S.D. 1988), 417 N.W.2d 879; Merkel v. Merkel (1988), 51 Ohio App. 3d 110, 554 N.E.2d 1346; Jackson v. Jackson (Minn. Ct. App. 1987), 403 N.W.2d 248; Peterson v. Peterson (1982), 98 N.M. 744, 652 P.2d 1195.) The court of the sixth state, in Riley v. Riley (Ala. App. 1990), 562 So.2d 265, found no abuse of discretion in declining to consider military allowances as income where there were no mandatory child support guidelines at the time of the court order; however, the subsequent Alabama statute provided for mandatory child support guidelines to include consideration of such allowances.
The allowances at issue are not subject to Federal income tax nor are they subject to garnishment. The argument is made that such criteria should be used in determining whether they are included in the computation to which the guidelines are applied. However, "income" for tax purposes is not synonymous with "income" for determining child support. (See In re Marriage of McBride (1988), 166 Ill. App. 3d 504, 510, 519 N.E.2d 1095, 116 Ill. Dec. 880.) The fact that the Internal Revenue Code excludes from gross income qualified military benefits, of which military allowances are a part (see 26 U.S.C.A. § 134 (1993)), is of little weight in determining whether to include BAQ, VHA or BAS as income in calculating child support. ( Alexander, 609 A.2d at 186.) The purpose of the two calculations are different. While the Internal Revenue Code is concerned with reaching an amount of taxable income, the support provisions in the Act deal with reaching the amount of income of both parents in order to determine the sum each parent can pay for the support of their child. Alexander, 609 A.2d at 186, citing Pa.R.Civ.P. 1910.16-1.
Moreover, if the Illinois legislature "intended its definition of income for child support purposes to parallel the calculation of income for tax purposes, then the language of the child support statutes or guidelines would have reflected this." ( Alexander, 609 A.2d at 186.) It clearly does not.
Whether or not the funds can be reached by garnishment is also not appropriate in considering what is included in the child support formula. Hautala and Peterson stand for the proposition that under Federal law, military allowances are not subject to garnishment and are beyond the reach of creditors including the recipients of child support. (See Hautala, 417 N.W.2d at 881; Peterson, 652 P.2d at 1198.) Regulations promulgated pursuant to 42 U.S.C. § 659 (1991), which provide for enforcement of support obligations of Federal employees, clearly state that BAQ, VHA and BAS are not garnishable. ( Hautala, 417 N.W.2d at 881, citing 5 C.F.R. § 581.104(h)(2) (1980).) The Federal laws and regulations cited above are not in conflict with the Act. As the Supreme Court stated in Rose v. Rose (1987), 481 U.S. 619, 635, 95 L. Ed. 2d 599, 614, 107 S.Ct. 2029, 2039, "While it may be true that these funds are exempt from garnishment or attachment while in the hands of the Administrator, we are not persuaded that once these funds are delivered to the [soldier] a state court cannot require that [soldier] to use them to satisfy an order of child support." The Court recognized that Congress intended the Federal law to avoidsovereign immunity problems, not to shield income from valid support orders. Hautala, 417 N.W.2d at 881; Peterson, 652 P.2d at 1198 (Congress enacted § 659 to ensure a divorced military spouse would continue to provide financial support, so long as was required, to either his former spouse or to children of the marriage, or both).
This case does not present a supremacy of laws issue. To the contrary, the Department of Defense by regulation and otherwise encourages members of the armed forces to fulfil their family commitments. (See Army Regulation 608-99, par. 2-4(b) (1985).) Since most soldiers are mindful of these responsibilities, there is no reason to judicially legislate an exception to our income guidelines for child support. Accordingly, the trial court erred in excluding the stated allowances as income under 750 ILCS 5/505(a)(3) (West 1992).
As to the second issue, the trial court found Respondent in arrears to Petitioner in the amount of $3,672.63 for therapy provided to the parties' minor child and directed that Respondent satisfy this sum by the payment of monthly installments of $98, the obligation to bear interest at the rate of 6% per year. Respondent states he is unsure whether the court's determination impliedly authorizes him to pay Petitioner for future therapy obligations as well.
Requiring Respondent to pay the therapy bills most certainly requires a finding that he is responsible for such medical expenses in the future, although a future court may be called upon to ensure that subsequent medical expenses are within the ambit of the judgment of dissolution. We recognize the payment plan is generous; however, the plan is within the trial court's discretion which we are not inclined to disturb on review.
For the foregoing reasons we affirm the trial court in its treatment of the arrearage, reverse as to its exclusion of allowances granted to military personnel, and remand to provide the trial court an opportunity to set child support in accordance with the dictates of the Illinois General Assembly's child support guidelines while allowing Respondent the occasion to interpose any special circumstances to which he might avail himself.
Affirmed in part; reversed in part and remanded with directions.
TULLY, P.J., and CERDA, J., concur.
© 1998 VersusLaw Inc.
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