*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

 

1This provision renders debts nondischargeable when they are

for money or extensions or renewals of credit obtained by false

pretenses, false representations, or actual fraud.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 98-20618

Summary Calendar

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FARRYL D. HOLUB,

Appellant,

versus

FIRST NATIONAL BANK, OF EL CAMPO,

Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-95-CV-3511)

_________________________________________________________________

April 27, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

The debtor Farryl D. Holub contests a judgment of the

bankruptcy court, affirmed by the district court, that held nondischargeable certain debts he incurred to First National Bank of

El Campo. On appeal, Holub contends that four elements of 11

U.S.C. § 523(a)(2)(A),1 which are essential to a finding of non-
2

dischargeability, were not proven by the bank: actual and

justifiable reliance; knowledge of falsehood; deception; and

proximate cause. As all of these elements are factual, we review

the bankruptcy court’s findings for clear error.

Two misrepresentations to the bank are at issue: Holub’s

homestead affidavit, which claimed homestead protection on 51.018

acres garnered, unbeknownst to the bank, from a spendthrift trust;

and a crop projection letter, which misrepresented the amount of

cotton Holub had available to serve as collateral for part of the

bank’s loan.

Holub’s dealings with the bank began in the early 1980's

when he secured interim financing for a home loan on a house in

Houston. In the late 1980's Holub and his wife returned to El

Campo, their childhood residence, where he took up farming as an

occupation. To refinance the overdue home loan, Holub executed a

deed of trust granting what was purported to be a first lien on the

north sixty acres of a 120-acre tract of real property that he

owned in Wharton County. (Holub never informed the bank that he

had executed a prior deed of trust in favor of his father on the

same property.) 

The bank began financing Holub’s farming operations until

the 1991 crop year, when the bank insisted on additional collateral

or a reduction in principal. At this point, the bank agreed to

accept a lien on the additional 60 acres of the 120-acre tract. To

ensure that the lien was not being granted on homestead property,

the bank’s lawyer procured a homestead affidavit from Holub which
3

described as homestead a tract of approximately 149 acres of real

property owned by his wife and an additional 51 acres being an

undivided 1/4 interest in approximately 204 acres of real property

in Wharton County. (A person may claim a 200-acre rural homestead

in Texas.) The bank’s attorney asked Holub whether the 51-acre

property, described as being “in trust,” had been distributed, and

Holub answered falsely that it had. Holub also executed a deed of

trust on January 2, 1991, which provides that no part of the 120

acres pledged to the bank was part of his homestead.

Based on these representations and the extra collateral,

the bank renewed the existing indebtedness and extended additional

credit in late in 1991 or early 1992.

In late 1991, Holub sought additional financing for the

1992 growing season although a significant amount of the 1991

indebtedness had not yet been repaid. Holub gave the bank a

computerized summary purporting to show the cotton which had been

ginned and for which he was waiting payment and cotton which was

stored in modules waiting to be ginned. Based on the summary, the

bank agreed to cover overdrafts in Holub’s checking accounts

related to 1992 crop expenses until Holub collected all of the 1991

crop proceeds. Unfortunately, by the time the crop summary was

provided to the bank, the cotton crop was already in the process of

being sold. 

Holub commenced a Chapter 12 bankruptcy in June, 1992,

but he agreed voluntarily to convert the case to Chapter 7. Holub

then claimed that the bank’s foreclosure on the 120-acre tract
 

2The bank also sought a denial of Holub’s discharge under 11

U.S.C. §727, but the bankruptcy court denied the broader remedy,

and the bank has not appealed this ruling.

4

violated his homestead rights. The bankruptcy judge tried the

homestead litigation before the nondischargeability case and found

that Holub could belatedly assert the homestead right in that

tract, notwithstanding his disclaimer to the bank in late 1991.

See Truman v. Deason, (In re Niland), 825 F.2d 801 (5th Cir. 1987).

During that litigation, however, the bankruptcy court warned Holub

that his victory might be short-lived.

In the current case, the bank first sought a declaration

of nondischargeability2 based on Holub’s misrepresentations that

the 120-acre tract was not subject to a homestead claim. Holub’s

defense consists, inter alia, of assertions that the bank should

not have believed that he would claim homestead protection over the

“trust” property, although he never informed the bank that the

trust was a spendthrift trust. Holub asserts that the bank should

have known about the spendthrift trust, because its lawyers

represented Holub’s father some years previously, when the father

established the spendthrift trust.

The bank also asserted that it renewed and extended crop

financing for Holub based on the false representations concerning

his cotton crop. Holub argues, by contrast, that the projections

were “a statement of the debtor’s financial condition” on which the

bank could not properly rely. Section 523(a)(2)(A).
5

Holub generally protests the bankruptcy court’s

credibility determinations and avers that the court did not find

that he displayed moral turpitude.

The bankruptcy court’s findings reject all of Holub’s

contentions. The court specifically found that Holub, trained as

an accountant, was well aware of the consequences of the loan

documents he was signing, and he deliberately misled the bank. The

court also found that the bank justifiably relied on Holub’s

representations. Field v. Mans, 516 U.S. 59, 116 S.Ct. 437 (1995);

Allison v. Roberts (In re Allison), 960 F.2d 481 (5th Cir. 1992).

Further, the court distinguished among the various loans and

allocated the judgment carefully to the amounts which were based on

the false representations. Based on our review of the briefs, the

court’s opinion, and pertinent portions of the record, we find no

clearly erroneous fact findings. Holub’s arguments might have

served well as a closing argument to the trial court, but they do

not meet the heavy burden of showing clear error.

AFFIRMED.