SAMPSON & ASSOCIATES
Bryan D. Sampson, Esq. (State Bar No. 143143)
Elizabeth Aronson, Esq. (#167869)
San Diego, California 92101
Attorneys for Plaintiff
LEGION FOR THE SURVIVAL OF FREEDOM, INC.
WILLIS and ELISABETH CARTO
LEGION FOR THE SURVIVAL OF FREEDOM, INC., a Texas Corporation,
WILLIS CARTO and ELISABETH CARTO
BANKRUPTCY CASE NO.: 98-08050 H7
ADV. PROCEEDING NO: 98-90374-H7
ORDER ON SUMMARY JUDGMENT
TIME: 10:00 a.m.
JUDGE: John J. Hargrove
Plaintiff/Creditor LEGION FOR THE SURVIVAL OF FREEDOM (hereinafter plaintiff “LSF")’s motion for summary judgment against Defendants/Debtors WILLIS CARTO and ELISABETH CARTO (hereinafter defendants “CARTOS"), as well as Defendants' cross motion for summary judgment against Plaintiff, first came before this count on the above date and time and then was continued for further briefing. Upon reviewing the pleadings filed by the parties, hearing oral argument and good cause appearing therefore,
IT IS HEREBY ORDERED that Defendants CARTOS' cross motion for summary judgment against Plaintiff LSF on all claims based upon the running of the applicable statute of limitations is denied as a material issue of fact exists regarding Mr. Carto’s residency in California and tolling of the applicable statute of limitations.
IT IS HEREBY ORDERED that summary judgment is granted in favor of Plaintiff LSF and against Defendants CARTOS on the first two elements of 11 U.S.C. Section 523(a)(4), i.e. the property rightfully came into the possession of Defendants CARTOS, a non-owner of the property, and Defendants CARTOS appropriated the property to a use other than that to which it was entrusted.
IT IS FURTHER ORDERED that a material issue of fact still exists on the third and final element of 11 U.S. C. Section 523 (a)(4) regarding Defendants CARTOS' fraudulent intent. Therefore, the court denies both Plaintiff and Defendants' motions for summary judgment on this issue.
IT IS HEREBY ORDERED that Plaintiff LSF’s complaint is hereby amended to include a claim for conversion under 11 U.S.C. Section 523(a)(6), without requiring any further pleading in the interest of judicial economy.
IT IS FURTHER ORDERED that summary judgment is hereby granted in favor of Plaintiff LSF and against Defendants CARTOS for conversion as all elements under 11 U.S.C. Section 523(a)(6) have been met.
[signed] Judge John Hargrove, Judge, United States Bankruptcy Court
NOTICE: Signature by the attorney constitutes a certification under Federal rule of Bankruptcy Procedure 9011 that the relief provided by the Order is the relief granted by the court.
Submitted by: [signed] Bryan D. Sampson, Esq.
In re: Cartos/Case No.: 98-08050-H7
LSF v. Carto/Adv. Case No.: 98-90374-H7
Order on Summary Judgment