
    In re Donald R. MILLS, Jr., Debtor. H.P. MARKETING CORP., Plaintiff, v. Donald R. MILLS, Jr., Defendant.
    Bankruptcy No. 95-3235.
    United States Bankruptcy Court, N.D. Ohio, Western Division.
    Nov. 8, 1996.
    
      L. Mari Taoka, Toledo, OH, for Plaintiff.
    Raymond L. Beebe, Toledo, OH, for Defendant.
   MEMORANDUM OPINION AND DECISION

RICHARD L. SPEER, Bankruptcy Judge.

This cause comes before the Court after trial upon Plaintiffs Complaint to Determine the Dischargeability of a Debt. This Court has reviewed the written arguments of counsel, evidence presented at trial, as well as the entire record in the case. Based upon that review, and for the following reasons, the Court finds that the debt of Donald R. Mills, Jr. to H.P. Marketing Corp. in the amount of Twelve Thousand Seven Hundred Seventeen and 50/100 Dollars ($12,717.50) is dischargeable.

FACTS

The Defendant/Debtor in this case, Donald R. Mills, Jr. (hereinafter “Mills”), was a salesperson of photographic equipment for the Plaintiff, H.P. Marketing Corp. (hereinafter “HPM”). In his capacity as a salesperson, Mills received photographic equipment from HPM as samples of the photographic merchandise. Upon the termination of the sales relationship with HPM, Mills 'disposed of the samples by selling them rather than returning them to HPM. Mills did not use the proceeds of the sale to pay their value to HPM, but rather used the proceeds to pay personal expenses. It is Mills’ debt to HPM for the value of these samples which is at issue in this case. The value of the samples is stipulated by the parties to be Twelve Thousand Seven Hundred Seventeen and 50/100 Dollars ($12,717.50). HPM claims that the sale of the samples constitutes embezzlement. Mills claims that he simply exercised his option to retain the goods and be billed for them per the commission agreement between he and HPM, and per the business practice of HPM.

The relationship between HPM and Mills began in 1991, when Mills began to work as a “sub-representative” under a salesman for HPM. As a sub-representative, Mills observed HPM’s practice of providing salespersons with various samples of photographic equipment to facilitate the sale of merchandise. Mills also observed that the samples themselves could also be sold to customers. Mills attended sales meetings for representatives and sub-representatives for the purpose of improving sales techniques. At one such sales meeting, in June of 1992, HPM discussed the policies regarding sample items. As a result of this sales meeting a sales bulletin was issued on July 1,1992, to explain HPM’s policy with regard to samples in the possession of salespeople. The bulletin addressed “SOM,” which this Court believes to mean “samples of merchandise,” and provided in pertinent part:

6. SOM [Samples of Merchandise]
There is some confusion on how we want to handle SOM!
We have two different kinds of memo accounts:
A — With a time limit
B — For samples on a permanent basis
A. Items with a time limit are usually requested by you for special occasions. They come from our show merchandise samples and have to be scheduled. While we will make almost everything available, we do not have nor will we have 20 of everything as samples.
B. Here we are splitting the memo account into items with a net value of $100. and lower and $100. up.
$100. and lower
At time of shipment, we will bill you at 30% below our net with 90 days for a due date.
$100. and Over
At time of shipment you get a memo invoice.
After 180 days you will be billed at a net less 30% with 60 days for a due date.
The 30% off should allow you to sell your sample to a dealer at whatever attractive price you want to offer it provided, of course, you take good care of your samples.
Do not return the samples because if you can not sell it, then who should?
After all, we only sample you with merchandise where we feel the product is salable and we can move good quantities.

Mills continued in his capacity as sub-representative for approximately two years ending in November of 1992, when Mills entered into a commission agreement with HPM and became a salesperson in his own right. Under the terms of the commission agreement HPM would supply Mills with photographic equipment to be used for customer demonstrations. The agreement, which was drafted by HPM, included the following paragraph:

SAMPLES: A set of samples representative of the line will be made available by HP Marketing for demonstration purposes. Due care must be exercised to maintain samples in good working order and to maintain adequate insurance coverage at all times. Samples may be recalled by HP Marketing Corp. at any time. All samples must be accounted for at the termination of this agreement. Samples not accounted for at the termination of this agreement will be billed and become payable at list price less 50% and be deducted from any commission due.

In November of 1993, Mills notified HPM of his intent to terminate the employment relationship. At that time various photographic equipment remained in Mills’ possession. On December 10,1993, Mills requested a list of samples via facsimile. On December 14, 1993, HPM “faxed” Mills a list of the equipment charged to Mills’ account. Mills did not return any samples to HPM. On January 17, 1994, HPM wrote Mills requesting either return of the items or payment. Mills testified that there were numerous items listed that he did not have in his possession. Despite various written, telefacsimile, and telephonic attempts HPM was unable to contact Mills subsequent to his December 10th request.

On May 25,1994, HPM filed a complaint in the Lucas County Court of Common Pleas seeking a money judgment against Mills. The complaint claimed a debt due “on an account.” At trial in this Court, Mills testified that he began to sell the sample photographic equipment in his possession in July of 1994, and received approximately Seven Thousand Dollars ($7,000.00). Mills explained that he did not return the samples to HPM or use the proceeds of the sale to pay HPM because of a personal crisis and related expenses.

On August 30, 1994, HPM obtained a default judgment against Mills in the amount of Seventeen Thousand Six Hundred Fifty-three and 80/100 Dollars ($17,653.80) plus costs and interest. However, as mentioned above, the parties have stipulated for purposes of the present proceeding that the amount in question is Twelve Thousand Seven Hundred Seventeen and 50/100 Dollars ($12,717.50).

Mills filed for relief under Chapter 7 of the Bankruptcy Code on March 31, 1995, and subsequently received a discharge of all dis-chargeable debts. The pre-petition sales of the photographic equipment were not disclosed in Mills’ bankruptcy petition or his personal income tax returns. HPM timely filed the present adversary proceeding, and the trial was held.

LAW

The Bankruptcy Code provides in pertinent part as follows:

11 U.S.C. § 523. Exceptions to Discharge
(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—
(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny;
11 U.S.C. § 727. Discharge
(a) The court shall grant the debtor a discharge, unless—
(2) the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed—
(A) property of the debtor, within one year before the date of the filing of the petition;
(4) the debtor knowingly and fraudulently, in or in connection with the case—
(A) made a false oath or account;

DISCUSSION

The sole issue presented in this ease is whether the debt at issue is dischargeable. Determinations concerning the dischargeability of partícula!’ debts are core proceedings pursuant to 28 U.S.C. § 157. Thus, this case is a core proceeding.

HPM charges that the debt at issue in this case arises from an act which constitutes embezzlement, and is therefore nondischargeable per § 523(a)(4) of the Bankruptcy Code. Section 523(a)(4) provides that debts resulting from “fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny,” are nondischargeable. It should be noted that a plain reading of § 523(a)(4) reveals there is no fiduciary capacity requirement for debts resulting from embezzlement or larceny. In re Shane, 140 B.R. 964, 967 (Bankr.N.D.Ohio 1991); In re Imbody, 104 B.R. 830, 840 (Bankr.N.D.Ohio 1989); In re Shinew, 33 B.R. 588, 592 (Bankr.N.D.Ohio 1983); 3 Collier On Bankruptcy 523.14 at 523-96 (15th ed.1996). In this case, HPM asserts that Mills’ actions establish nondischargeability solely under the embezzlement theory.

“Embezzlement is the fraudulent appropriation of property by a person to whom such property had been lawfully entrusted or into whose hands it has lawfully come.” Shane, 140 B.R. at 967, citing Moore v. United States, 160 U.S. 268, 16 S.Ct. 294, 40 L.Ed. 422 (1895). See also In re James, 42 B.R. 265, 266 (Bankr.W.D.Ky.1984); Black’s Law Dictionary at 522 (6th Ed.1991); 3 Collier On Bankruptcy 523.14[3] at 523-97 (15th ed.1996). Therefore, HPM must prove that (1) Mills lawfully acquired the property with the consent of HPM; (2) Mills appropriated the property for his own use; and (3) some form of fraud or deceit was used. Shane, 140 B.R. at 967. The United States Supreme Court has held that the preponderance of the evidence standard of proof should be applied to all dischargeability exceptions under § 523(a) of the Bankruptcy Code. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991). Exceptions to dischargeability are to be strictly construed in favor of the debtor. In re Ward, 857 F.2d 1082, 1083 (6th Cir.1988) citing Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915) and In re Hunter, 780 F.2d 1577, 1579 (11th Cir.1986).

Two of the three elements for embezzlement are clearly shown in the present case. First, the property was acquired by lawful means. The facts indicate that Mills received the samples from HPM for the purpose of facilitating sales. Second, he appropriated the property for his own use, having sold them and retained the proceeds. The use of fraud or deceit is the final element of embezzlement that must be proven by HPM. The issue before this Court is whether Mills acted fraudulently when he disposed of the samples, or whether he reasonably assumed he could undertake personal liability for the payment of the value of the samples.

The commission agreement between Mills and HPM states that all samples must be kept in good condition, that HPM may recall samples at any time, and that all samples must be accounted for at the termination of this agreement. This would tend to indicate that HPM retained ownership of the samples entrusted to their salespeople. However, the agreement also provides that, “Samples not accounted for at the termination of this agreement will be billed and become payable at list price less 50% and be deducted from any commission due.” Thus, the contract provides for the remedy for a salesperson’s failure to account for the samples. That is, the salesperson will become personally liable for the samples not returned. Thus, this provision would appear to operate to allow a salesperson to either return the samples, or to retain and be hable for them. This conclusion is bolstered by the fact that HPM drafted this agreement, considering the long established principle in contract law that the drafter of a contract bears the burden for any ambiguity. In re Harstad, 155 B.R. 500, 510-511 (Bankr.D.Minn.1993) citing Adelman v. Minnwest Bank of Ortonville, Ortonville, Minn., 97 B.R. 569, 572 (Bankr.D.S.D.1988), Local Union 288 v. C.R.S.T., Inc., 795 F.2d 1400, 1406 (8th Cir.) cert. denied, 479 U.S. 1007, 107 S.Ct. 647, 93 L.Ed.2d 702 (1986), Premier Resources Ltd. v. Northern Natural Gas Co., 616 F.2d 1171, 1178 (10th Cir.1980), Restatement (Second) of Contracts § 206 (1979), and In re Stratford of Texas Inc., 635 F.2d 365, 368 (5th Cir.1981).

The sales bulletin dated July 1, 1992, also supports the conclusion that salespersons may elect to retain the items and be billed for them. In fact, the bulletin appears to encourage it. It provides that salespersons will be billed at a discount to assist them in selling the samples, and specifically states, “Do not return the samples because if you can not sell it, then who should? After all, we only sample you with merchandise where we feel the product is salable and we can move good quantities.” The bulletin also appears to show that while salespersons were attempting to sell the samples, HPM would automatically bill the salespersons. Further, Mills testified that during his employment with HPM he was often billed for samples that had been shipped to him. He further testified that previous amounts owed to HPM for samples received were automatically deducted from his commission payments.

It is also noteworthy that when HPM filed suit against Mills on May 25, 1994, it did so “on an account” and not for the conversion of property. A copy of the “account” was attached to the state court complaint, and listed the items allegedly retained by Mills, along with the prices for which he was billed.

Based on these facts, it appears to this Court that it was HPM’s practice to automatically sell the samples to the salespersons by billing them and deducting the amount from commissions due, and yet still claim the rights of ownership if payment could not be compelled. The result is ambiguity as to when the ownership of the samples actually transfers, and whether an option to buy is conferred in the practice or contract. It is obvious that HPM wanted to assume that salespersons would purchase the samples, and would routinely bill them prior to any affirmative election made by the salespersons. Thus, it appears to this Court that the salesperson is, at a minimum, given the opportunity to elect to retain the items and become liable for the debt. Further, regardless of the determination of the specific property and contract rights of the parties, this Court cannot find that Mills had the intent necessary for embezzlement. Mills could routinely elect to purchase the items and resell them, and later be billed for the debt. Thus, the resulting debt, which in this case went unpaid, is simply an ordinary debt.

The Bankruptcy Court in In re Epperson, 45 B.R. 708 (Bankr.E.D.Tenn.1985), had before it a ease similar to the case at hand. In Epperson, the creditor provided the debtor with guns for sale on consignment. The debtor was given “unfettered power of disposition ... so long as the agreed-upon price was returned to Plaintiff following that disposition.” Id. at 710. Faced with financial difficulties and unable to pay the creditor for firearms he had sold, the debtor filed a petition for bankruptcy. Since the Debtor had unlimited discretion regarding how and for what price he would sell the firearms, the sale of them created nothing more than an ordinary debt and did not result from an act of embezzlement. Id. at 711. Although this Court realizes that the standard of proof applied by the Epperson court was that of clear and convincing evidence, and that the standard of proof in dischargeability determinations has been lowered to the preponderance of the evidence standard by the Supreme Court in Grogan v. Garner, this Court nevertheless finds that a similar outcome is warranted in the case at bar.

Plaintiff makes a number of arguments attempting to show the Mills’ fraudulent intent. Plaintiff points to Mills’ December 10, 1993, facsimile, which requested a list of items allegedly in his possession. Plaintiff asserts that this request indicates acknowledgment that he was obligated to return the samples rather than become liable for the cash value. However, simply asking HPM about the samples does not evidence fraudulent intent as required to show embezzlement. Nor does it change what this Court believes to be the nature of the commission agreement and business practice of HPM, which allowed Mills to retain the samples and incur the debt.

HPM also points to the fact that the value that the items were sold for was only about Seven Thousand Dollars ($7,000.00), which is far less than the stipulated value of Twelve Thousand Seven Hundred Seventeen and 50/100 Dollars ($12,717.50). Though this certainly does not lend support to the propriety of Mills actions, this Court does not feel that it changes the result in this case. First, the items were not all sold at once, so it is not clear whether Mills expected the shortfall. Second, there was disagreement between Mills and HPM as to which items he had in his possession at the time the relationship was terminated. HPM assumed Mills had more samples than Mills says he had. As it appears to be a routine encouraged by HPM for salespersons to sell samples, such a discrepancy seems plausible, and can at least partially explain the difference in the value received upon their sale. Finally, the propriety of the election to retain the items and incur the debt does not change the nature of the agreement and business practice which allowed Mills to do so.

HPM also argues that fraudulent intent can also be evidenced by the fact that the sale of the photographic equipment and the disposition of the proceeds was not listed on Debtor’s 1994 Federal Income Tax forms, or on his bankruptcy schedules. While a failure to conform with the Bankruptcy Code can, in appropriate circumstances, be grounds for the denial of a discharge under § 727(a)(4), that is not what is at issue in this case. What is at issue in this case is whether Debtor possessed the requisite intent to defraud in conjunction with the alleged act of embezzlement. Perhaps HPM is trying to assert that the Debtor was trying to cover up what he knew to be embezzlement, and so his self-perceived guilt is evidence of a fraudulent intent at the time of the' alleged act of embezzlement. If so, this Court finds such an indirect inference lacking substance in this case, and it is further weakened by the fact that HPM was properly listed as a creditor and received the appropriate notice of the bankruptcy.

This Court concludes that HPM failed to prove that Mills acted with the requisite fraudulent intent necessary to show embezzlement by the sale of the photographic equipment. In reaching the conclusions found herein, the Court has considered all the evidence and arguments of counsel, regardless of whether they are specifically mentioned in this opinion.

Accordingly, it is

ORDERED that the debt owed to Plaintiff totals Twelve Thousand Seven Hundred Seventeen and 50/100 Dollars ($12,717.50), and that this debt be, and is hereby, determined DISCHARGEABLE.  