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2014 BNH 011 Note: This is an unreported opinion. Refer to LBR 1050-1 regarding citation. 

______________________________________________________________________________ 

UNITED STATES BANKRUPTCY COURT

 DISTRICT OF NEW HAMPSHIRE

In re: Bk. No. 13-10999-BAH 

Chapter 7 

Gerard L. Lemay, 

Debtor 

Kev-Ray Investments LLC, 

Plaintiff 

v. Adv. No. 13-1113-BAH 

Gerard L. Lemay, 

Defendant 

John J. Washburn 

Law Office of John Washburn 

Nashua, NH 

Attorney for the Plaintiff 

William Aivalikles 

Law Office of William E. Aivalikles, PA 

Nashua, NH 

Attorney for the Defendant

MEMORANDUM OPINION

Before the Court is the Motion for Summary Judgment (Doc. No. 57) (the “Motion”) filed 

by the defendant and debtor in this case, Gerard Lemay (the “Defendant”). The plaintiff, 

Kev-Ray Investments LLC, (the “Plaintiff”) objected to the Motion. In this adversary proceeding 

the Plaintiff seeks to except certain debts from the discharge under 11 U.S.C. § 523(a)(2)(A) and 

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(a)(6). The dispute in this case is largely related to a leaking roof—specifically, the roof of the 

property the Plaintiff leased to the Defendant. After the Defendant attempted unsuccessfully to 

repair the roof, he vacated the property, before the term of the lease had expired. The debts the 

Plaintiff seeks to except from discharge relate to that series of events. In the Motion, the 

Defendant argues that he is entitled to judgment as a matter of law on all three counts of the 

Plaintiff’s complaint. After reviewing the summary judgment record and weighing the arguments 

of the parties, the Court shall grant summary judgment as to Count I and deny it as to the remaining 

two counts. 

JURISDICTION 

This Court has authority to exercise jurisdiction over the subject matter and the parties 

pursuant to 28 U.S.C. §§ 1334, 157(a), and U.S. District Court for the District of New 

Hampshire Local Rule 77.4(a). This is a core proceeding in accordance with 28 U.S.C. § 157(b). 

BACKGROUND

 The majority of relevant and material facts in this case are in dispute. The Court will 

recount the undisputed facts and note where the positions of the parties differ—only to the extent 

necessary to set out a coherent factual background. The Plaintiff is a New Hampshire limited 

liability company wholly owned and managed by Donald Dumont. Dumont formed the LLC 

after Dumont and the Defendant had entered into the lease that is the framework of much of this 

dispute. It was the Defendant who first approached Dumont about renting commercial property 

where he could start an automobile service business. Dumont had recently entered into a separate 

transaction where he was to acquire the real property located at 30 East Hollis Street, in Nashua, 

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New Hampshire (the “Property”). The Defendant and Dumont visited the Property and discussed 

the possible terms of its lease. During these initial viewings it became obvious to both parties that 

the roof of the Property needed repairs. The roof and the repairs it needed accordingly featured in 

the negotiations over the lease. 

 The exact content and extent of these negotiations is in dispute. The Plaintiff alleges that 

the Defendant made representations—to Dumont—about his experience in roof repair, 

specifically that he was an “expert.” The Defendant denies that he made those representations. 

The Plaintiff also alleges that the Defendant made other representations that went into Dumont’s 

decision to lease the Property to the Defendant, namely the existence of business partners that 

would help the Defendant start up the auto repair business. 

 Whatever the exact content of the negotiations, the parties entered into a lease agreement 

on May 28, 2009 for a four-year lease of the Property (the “Lease”), with the lease period to begin 

on June 2, 2009. The Lease was originally between the Plaintiff and Dumont individually. The 

Lease, however, contemplated that Dumont could assign his interest freely, and did not impose any 

express conditions or restrictions on such an assignment. See Lease at 1 (“AGREEEMENT OF 

LEASE made this 5/28 of May, 2009 between Donald Dumont, or his assigns”). The parties do 

not dispute the assignability of the Lease. Dumont immediately assigned the Lease to the 

Plaintiff after the Property came under his control.1

 Among other things, the Lease required the following of the Defendant: 

a. Repair or replace the garage doors. 

b. Replace the side entrance steel door. 

c. Repair the rubber roof. 

d. Paint the entire building inside and out. 

 

1 The Plaintiff had a different name when it acquired the lease, but the Court does not find this fact material. 

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e. Paint all floors with epoxy paint. 

f. Clean out the building and clean entire parking area. 

g. The existing heating system shall be repaired or replaced by the LESSEE, at LESSEE’s sole 

cost and expense, if the LESSEE determines it is necessary to do so. 

h. In the event the electrical system is not sufficient to meet the LESSEE’s needs, then the 

LESSEE shall upgrade or repair as needed at his sole cost and expense. 

Lease at ¶ 6. 

 At some point after the parties entered into the Lease, the roof of the Property began to 

leak. The Defendant attempted to repair the roof but was not successful. The parties disagree 

over many of the facts surrounding the Defendant’s attempts at repairing the roof. The Defendant 

asserts that he used his best efforts to repair the roof and that pre-existing structural defects blunted 

the success of his repair efforts. The Plaintiff argues that the Defendant did not really try to repair 

the roof, but rather intentionally damaged it as part of a scheme to get out of the Lease. 

 In October 2011, the Defendant vacated the Property. According to the Defendant, he 

moved out because the Property was unsafe and because the roof was still leaking. The Plaintiff 

argues that the Defendant was looking for an excuse to leave because his business was 

unsuccessful. The Defendant states that, at the time he abandoned the Property, he was current on 

all financial obligations to the Plaintiff, save for some amount of disputed real estate taxes owed 

under the Lease. The Plaintiff denies that the Defendant was current on rent or taxes. 

 After the Defendant abandoned the Property, the parties filed suit against each other in 

state court. The Defendant then filed his chapter 7 bankruptcy petition, which effectively halted 

the state court litigation. On July 21, 2013, the Plaintiff filed the adversary complaint that 

initiated the current proceeding. This complaint was later amended (Doc. No. 15) (the 

“Complaint”). 

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The Complaint contains three counts. In Count I, the Plaintiff seeks to except from 

discharge debts owed by the Defendant on account of the damage he caused to the Property, 

specifically in his attempts to repair the roof. The Plaintiff asserts that this damage amounts to 

“willful and malicious injury” and is non-dischargeable debt under 11 U.S.C. § 523(a)(6). Count 

II of the Complaint is based on the Defendant’s negotiation, performance, and various alleged 

breaches of the Lease. The Plaintiff asserts that the Defendant induced the Plaintiff to enter into 

the Lease through misrepresentations concerning the Defendant’s roof-repairing expertise and his 

financial history serious enough to make the claimed damages non-dischargeable under § 

523(a)(2)(A). Count III is a claim under New Hampshire RSA § 358-A:2, the Consumer 

Protection Act (the “CPA”), in which the Plaintiff claims the Defendant’s conduct in negotiating 

the Lease and attempts at performing under the Lease violated the provisions of the CPA. The 

Plaintiff asks the Court to find the Defendant liable under the CPA and determine the resulting 

debt to be non-dischargeable under section 523(a)(2)(A). 

After the Plaintiff amended the Complaint, the Defendant filed the Motion, seeking 

summary judgment on all counts; the Plaintiff objected. 

DISCUSSION

 I. Summary Judgment Standard 

 Summary judgment is appropriate when “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.” 

Fed.R.Civ.P. 56(a). “Genuine issues of fact are those that a factfinder could resolve in favor of 

the nonmovant, while material facts are those whose ‘existence or nonexistence has the potential to 

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change the outcome of the suit.’” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st 

Cir. 2014) (quoting Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London, 

637 F.3d 53, 56 (1st Cir. 2011)). In assessing the summary judgment record, a court must draw 

all reasonable inferences in favor of the non-moving party but is “not obliged to accept as true or to 

deem as a disputed material fact, each and every unsupported, subjective, conclusory, or 

imaginative statement made to the court by a party.” Adamson v. Walgreens Co., 750 F.3d 73, 78 

(1st Cir. 2014) (citations omitted). 

 The Plaintiff has the burden of proof to prove a debt’s nondischargeability under section 

523(a)(2) by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 283 (1991). 

Additionally, “exceptions to discharge are narrowly construed in furtherance of the Bankruptcy 

Code's ‘fresh start’ policy, and, for that reason, the claimant must show that his claim comes 

squarely within an exception enumerated in Bankruptcy Code § 523(a).” Palmacci v. Umpierrez, 

121 F.3d 781, 786 (1st Cir. 1997) (citation omitted). 

 II. Summary Judgment as to Count I: 11 U.S.C. § 523 (a)(6) 

 The Defendant argues that he is entitled to summary judgment on Count I because the 

Plaintiff has failed to present any evidence that the Defendant intentionally harmed the Plaintiff or 

his property. Section 523(a)(6) provides that “(a) A discharge under section 727 . . . of this title 

does not discharge an individual debtor from any debt-- (6) for willful and malicious injury by the 

debtor to another entity or to the property of another entity[.]” The relevant legal standard for 

intent under section 523(a)(6) is set out by the United States Supreme Court in Kawaauhau v. 

Geiger: 

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The word “willful” in (a)(6) modifies the word “injury,” indicating that 

nondischargeability takes a deliberate or intentional injury, not merely a deliberate or 

intentional act that leads to injury. Had Congress meant to exempt debts resulting from 

unintentionally inflicted injuries, it might have described instead “willful acts that cause 

injury.” 

Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). Courts in this district have explained that under 

Geiger “the injury, not the act, must be willful, as injuries arising from negligent or reckless 

conduct are not excepted from discharge under section 523(a)(6). In re Graham, 363 B.R. 32, 38 

(Bankr. D.N.H. 2007). 

 The Plaintiff cites to cases from within this Circuit that have found liability, post-Geiger, in 

situations where the debtor inflicted harm with substantial certainty of the injury that was likely to 

and did result. See Slosberg 225 B.R. 9, 18-19 (Bankr. D. Me. 1998) (“The first illustration offers 

practical guidance as to how this standard might factually appear: ‘A throws a bomb into B's office 

for the purpose of killing B. A knows that C, B's stenographer, is in the office. A has no desire to 

injure C, but knows that his act is substantially certain to do so. C is injured by the explosion. A is 

subject to liability to C for an intentional tort.’”) (quoting Restatement (Second) of Torts § 8A). 

 Assuming—without deciding—the Plaintiff is correct that the “substantial certainty” 

standard is viable under Geiger, the Plaintiff has not shown the existence of any evidence that 

meets this standard. No evidence in the summary judgment record shows that the Defendant 

undertook repairs to the roof while substantially certain that he would actually damage the 

Property. The Plaintiff points to some evidence tending show that the Defendant misused a 

roofing repair substance that had the potential to damage the roof further and that the Defendant 

did not actually have the knowledge or skill to properly repair the roof. Even if the Court were to 

take this evidence as the truth, the Plaintiff still has not produced evidence of willfulness within the 

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meaning of section 523(a)(6); at best that evidence demonstrates negligence or recklessness on the 

part of the Defendant. Accordingly, the Plaintiff, has failed to present any evidence on an 

essential element of his claim and the Court must grant summary judgment to the Defendant on 

Count I. 

 III. Summary Judgment as to Count II: 11 U.S.C. § 523(a)(2)(A) 

 To establish that a debt is nondischargeable under section 523(a)(2)(A), a creditor must 

satisfy six elements: the debtor (1) made a false representation, (2) with fraudulent intent or 

“scienter,” (3) with the intent that the creditor rely on the misrepresentation, (4) actually inducing 

reliance, (5) that such reliance was justifiable, (6) causing damages. Palmacci v. Umpierrez, 121 

F.3d 781, 786 (1st Cir. 1997). 

First, the Defendant argues that he is entitled to summary judgment on Count II because the 

Court may not consider evidence of any pre-contractual negotiations between the parties: the 

Lease is a completely integrated document. See Lease ¶ 31. In essence, the Defendant asserts 

that Count II is foreclosed by the parol evidence rule. If the Court cannot consider the pre-Lease 

negotiations, where all of the alleged misrepresentations occurred, then the Plaintiff could not 

sustain its claim in Count II. However, the Defendant’s argument ignores a well-trod exception 

to the parol evidence rule. 

 In New Hampshire, “the first step in determining whether parol evidence is admissible is 

to consider whether the writing is a total integration and completely expresses the agreement of the 

parties.” Lapierre v. Cabral, 122 N.H. 301, 306 (1982). But, even if a court finds that a contract 

is totally integrated, “the parol evidence rule does not preclude the use of evidence tending to 

prove fraud or misrepresentation.” Ingaharro v. Blanchette, 122 N.H. 54, 56 (1982). Since the 

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Plaintiff is trying to do just that in making his case under section 523(a)(2)(A), the Court does not 

need to address this point further. Parol evidence is admissible with respect to Count II. 

Second, the Defendant argues that the Plaintiff will be unable to prove that it relied on the 

misrepresentations because the pre-Lease negotiations took place between the Defendant and 

Dumont, not the Defendant and the Plaintiff. In other words, the Defendant argues that the 

assignment of the Lease to the Plaintiff prevents the Plaintiff from relying on the Defendant’s 

pre-lease representations. As a preliminary matter, the Court notes that the Defendant has cited 

no authority to support this argument, but even aside from that fact, the argument is unavailing for 

two reasons. 

First, while acknowledging the legal distinction between Dumont and the plaintiff, 

Kev-Ray Investments LLC, the Court notes that the factual difference between the two is slight. 

Dumont is the sole member and manager of the Plaintiff. The parties agree that the pre-Lease 

negotiations took place between the Defendant and Dumont and that the assignment of the Lease 

occurred on the first day of the term of the Lease. On this disputed record, it is unclear to the 

Court whether the assignment of the Lease to the Plaintiff was contemplated by both Dumont and 

the Defendant during the negotiation stage. If the assignment was contemplated by the parties 

beforehand, the Defendant’s position becomes unsustainable. From his perspective, it would 

have been part of the transaction that the Plaintiff would rely on representations made to Dumont 

personally. The Court is unwilling to close the door on this possibility at the summary judgment 

stage, given the factual uncertainty surrounding the negotiations. 

The Court is unwilling to accept the Defendant’s intervening assignment defense for a 

second reason, which is rooted in an interpretation of the reliance element of section 523(a)(2). 

Courts in the First Circuit do not appear to have addressed this issue in detail. Outside of this 

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Circuit, courts have held that an intervening assignment should not prevent an assignee from 

attempting to prove its reliance on misrepresentations made to the assignor by a debtor, both in the 

context of section 523(a)(2)(A) and (a)(2)(B).2 In In re Borschow, a creditor—a friend of the 

debtor—agreed to lend money to the debtor in the midst of a poker game. Turbo Aleae 

Investments, Inc. v. Borschow (In re Borschow), 467 B.R. 410, 414 (N.D. Tex. 2012). The 

creditor began by lending money to the debtor personally. The creditor eventually assigned the 

debt to a corporation, in which the creditor had some ownership interest or authority. The 

corporation continued lending the debtor money. Id. At some point, the debtor filed a chapter 7 

bankruptcy case, and the corporation filed suit seeking to determine the debt to be 

nondischargeable under section 523(a)(2)(A). Id. at 415. The debtor in Borschow made the 

same argument the Defendant makes in this case: that the assignment prevented the corporation 

from proving reliance on statements made to the individual assignee-creditor. Id. at 419. 

The Borschow court did not accept this argument. Citing prevailing precedent in the 

Ninth and Seventh Circuits, the court held that an intervening assignment did not bar a creditor 

from proving reliance on statements made by the debtor to an assignor. Id.; see New Falls Corp. 

v. Boyajian (In re Boyajian), 367 B.R. 138 (B.A.P. 9th Cir. 2007) (assignment does not bar 

reliance by assignee in § 523(a)(2)(B) context); FDIC v. Meyer (In re Meyer), 120 F.3d 66, 70-71 

(7th Cir. 1997) (“[T]he very reason that the institution of assignment exists is to enable [a] 

[c]reditor to transfer its rights against [d]ebtor[.]”). The court based its decision on both the 

 

2

 Section 523(a)(2)(B) is a related sub-section of section 523(a)(2) distinguished from (a)(2)(A) in that the debtor 

makes misrepresentations in writing. The text of this sub-section reads: “(a) A discharge under section 727, 1141, 

1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt-- (2) for money, 

property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by-- (B) use of a statement 

in writing-- (i) that is materially false; (ii) respecting the debtor's or an insider's financial condition; (iii) on which the

creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the 

debtor caused to be made or published with intent to deceive[.]” 11 U.S.C.A. § 523 (West 2014). 

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language of the statute and policy considerations. First, nothing in the language of the statute 

prevented an assignee creditor from establishing reliance on statements made to the assignor. 

Borschow at 420 (“[T]he language of the statute does not suggest that loan's characterization as 

fraudulent somehow changes if the original creditor later assigns the loan.”). Second, the court 

could find no policy reason to permit the debtor to escape possible nondischargeability claims 

“simply because the defrauded party later chose to assign the loan.” Id. Finally, the court noted 

that the institution of assignment is central to the functioning of the debt market; allowing a debtor 

to escape claims of fraud would hinder the ability of assignees to rely on due diligence performed 

by the assignor: 

The purchasers of the loans rely on the original creditor to assess the risk of default. The 

original creditor, in turn, relies on the borrower to provide accurate information. If the 

borrower defrauded the original creditor, the bankruptcy code recognizes that the creditor 

should not have to suffer discharge—after all, the creditor assessed the risk based on false 

information. If that first assignment were to negate a means to challenge dischargeability, 

as Debtors argue, later purchasers of the loan would lose this valuable protection from 

bankruptcy discharges. This in turn would diminish the value of loans on the secondary 

market or force parties to spend resources investigating the original loan transaction for 

potential fraud. 

Id. 

Even though the facts here do not involve the public debt market, the Court finds the 

reasoning of Borschow and the cases it cites persuasive. In real terms, where the difference 

between Dumont as an individual and the Plaintiff is slight, misrepresentations made to either 

Dumont or the Plaintiff—a single member LLC of which Dumont is the sole member—would still 

have to be made to the same person. It would work an injustice upon the Plaintiff to prevent it 

from attempting to establish nondischargeability under these circumstances. Additionally, 

nothing the Court has gleaned from New Hampshire law counsels a different holding. In New 

Hampshire, the general rule is that the “assignee obtains the rights of the assignor at the time of the 

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assignment.” Stateline Steel Erectors, Inc. v. Shields, 150 N.H. 332, 336 (2003) (quoting YYY 

Corp. v. Gazda, 145 N.H. 53, 61 (2000)). Following this general rule, if the assignor had a 

potential claim under section 523(a)(2)(A) against the debtor, an assignee creditor should be able 

to pursue that claim. For these reasons, the Court finds that the assignment of the Lease does not 

bar the Plaintiff’s claims in Count II. 

The balance of the Defendant’s arguments relies on heavily contested factual issues 

surrounding both the pre-lease representations and causation of damage to the Property. The 

factual issues make it impossible for the Court to decide the merit of those arguments on summary 

judgment. The Court disregards the parts of the Motion that argue as if Count II were premised 

on section 523(a)(2)(B). At the hearing, the parties agreed that the Plaintiff was not asserting any 

such claims. The Court shall deny the Motion as it pertains to Count II. 

 IV. Summary Judgment as to Count III: CPA & 11 U.S.C. § 523(a)(2)(A) 

 In Count III, the Plaintiff asks the Court for two things: (1) to determine whether the 

Defendant is liable under the CPA and (2) to find any damages resulting from that liability to be 

nondischargeable under section 523(a)(2)(A). With respect to Count III, the Motion focuses on 

only the CPA claims and does not mention the nondischargeability aspect. The Defendant argues 

that the Court should grant him summary judgment on Count III because he was not in the business 

of roofing, and the CPA only covers transactions in the ordinary course of business. 

 NH R.S.A. § 358-A:2—the CPA—provides that “[i]t shall be unlawful for any person to 

use any unfair method of competition or any unfair or deceptive act or practice in the conduct of 

any trade or commerce within this state.” The terms “trade” and “commerce” are defined in 

R.S.A. § 358-A:1(II): “‘Trade’ and ‘commerce’ shall include the advertising, offering for sale, 

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sale, or distribution of any services and any property, tangible or intangible, real, personal or 

mixed, and any other article, commodity, or thing of value wherever situate, and shall include any 

trade or commerce directly or indirectly affecting the people of this state.” Although the range of 

conduct prohibited in the CPA appears broad, the New Hampshire Supreme Court has held 

otherwise. Ellis v. Candia Trailers and Snow Equipment, Inc., 164 N.H. 457, 465 (2012) (“We 

have held that the scope of the CPA is narrower than its broad language may suggest, and that it 

does not encompass isolated sales or contracts that are not undertaken in the ordinary course of a 

trade or business.”) (citing Hughes v. DiSalvo, 143 N.H. 576 (1999) (holding that the sale of a 

home from one individual to another, as part of a single, isolated transaction does not come within 

the ambit of the CPA). 

 In Ellis, an individual who was in the business of selling and installing truck-bed parts sold 

his business, Precision Truck. The buyer later brought claims against the individual seller, 

claiming violations of the CPA in the conduct of the sale. The Ellis court held that the sale of the 

business was not covered by the CPA because the sale of Precision Truck was not in the ordinary 

course of the seller’s business (the selling of truck parts); it appeared to be a single, isolated 

transaction. Ellis at 465-66. 

 Here, the undisputed facts indicate that the Defendant was in the business of running an 

automotive service business. It is unquestioned that the Defendant’s leasing of space in which to 

operate the business is an ordinary course transaction. All of the representations made between 

Dumont and the Defendant that lead to the execution of the Lease were in furtherance of that goal. 

This is true regardless of whether the representations relate to the covenant to repair the roof, or the 

covenant to pay rent—both included in the Lease. All of the claims in Count III appear to relate 

to alleged unfair or deceptive practices the Defendant engaged in to negotiate or perform a lease. 

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Both the negotiation and performance of the Lease were integral to the ordinary course of the 

Defendant’s business. Unlike the sale of the business in Ellis, which almost by definition is a 

one-time transaction, a business such as the Defendant’s may enter into any number of commercial 

real estate leases, consecutively or sequentially, in the ordinary course of its operations. 

The Court finds that the claims in Count III come within the protection of the CPA. The balance 

of the Motion on this count relates to the level of intent required to breach the CPA, a matter as to 

which issues of material fact exist. Accordingly, the Court shall deny the Motion as to Count III. 

CONCLUSION

For the reasons stated above the Court shall grant the Motion as to Count I and deny it as to 

Counts II and III. This opinion constitutes the Court=s findings of fact and conclusions of law in 

accordance with Federal Rule of Bankruptcy Procedure 7052. The Court will issue a separate 

order consistent with this opinion. 

 ENTERED at Manchester, New Hampshire. 

Date: September 19, 2014 /s/ Bruce A. Harwood 

 Bruce A. Harwood 

 Chief Bankruptcy Judge 

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