In Re James D. FOUST, Debtor. UNITED STATES of Am., Appellant, v. James D. FOUST, Appellee, 52 F.3d 766 (8th Cir. 1995). · Go Syfert
In Re James D. FOUST, Debtor. UNITED STATES of Am., Appellant, v. James D. FOUST, Appellee, 52 F.3d 766 (8th Cir. 1995). Cases Citing This Book View Copy Cite
28 citation events (12 in the last 25 years) across 13 distinct courts.
Strongest positive: Diwan, L.L.C. v. Maha-Vishnu Corporation (ca8, 2017-02-17)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (rule) Diwan, L.L.C. v. Maha-Vishnu Corporation
8th Cir. · 2017 · confidence medium
“Although the district court’s conclusions about the bankruptcy court’s decision may carry some persuasive weight, our appellate review of the bankruptcy court’s decision is independent of the district court’s opinion.” United States v. Foust (In re Foust), 52 F.3d 766, 768 (8th Cir. 1995). 4 ■ Under the Bankruptcy Code, a debtor’s Chapter 11 plan may only be confirmed, inter alia, if any holder of an impaired claim or interest either accepts the plan or receives no less than he would under a Chapter 7 liquidation (the best-interest-of-the-creditors test), 11 U.S.C. § 1129 (a)…
discussed Cited as authority (rule) Curtis Nessan v. John Lovald
8th Cir. · 2012 · confidence medium
“Although the district court’s conclusions about the bankruptcy court’s decision may carry some persuasive weight, our appellate review of the bankruptcy court’s decision is independent of the district court’s opinion.” In re Foust, 52 F.3d 766, 768 (8th Cir.1995). ‘When a debtor files a Chapter 7 bankruptcy petition, all of the debtor’s assets become property of the bankruptcy estate .... ” Schwab v. Reilly, 560 U.S.-, 130 S.Ct. 2652, 2657 , 177 L.Ed.2d 234 (2010); see also 11 U.S.C. § 541 .
cited Cited as authority (rule) Teresa Feucht v. Leeann Pierce
8th Cir. · 2008 · confidence medium
Upon review of the bankruptcy court’s factual findings for clear error, and its legal conclusions de novo, see In re Foust, 52 F.3d 766, 768 (8th Cir.1995), we find no basis for reversal.
discussed Cited as authority (rule) Auto Mart, Inc. v. Wendt (In Re Wendt)
Bankr. W.D. Mo. · 2006 · confidence medium
United States v. Foust (In re Foust), 52 F.3d 766, 769 (8th Cir.1995); Ford Motor Credit Co. v. Owens, 807 F.2d 1556, 1559 (11th Cir.1987); Mercury Marine Acceptance Corp. v. Wheeler (In re Wheeler), 96 B.R. 201, 204 (W.D.Mo.1988) (citing Boyd v. Wimes, 664 S.W.2d 596, 598 (Mo.Ct.App.1984) (corporate officer may be held personally liable for conversion when he “has actual or constructive knowledge of the actionable wrong and ... participates therein.”)); John Deere Co. v. Deresinski (In re Deresinski), 216 B.R. 995 (Bankr.M.D.Fla.1998) (holding debtor personally liable for conversion of pr…
cited Cited as authority (rule) Payne v. Lomantini (In re Lomantini)
Bankr. E.D. Mo. · 2000 · confidence medium
In re Foust (United States v. Foust), 52 F.3d 766, 769 (8th Cir.1995).
discussed Cited as authority (rule) Mercantile Bank of Arkansas, N.A. v. Speers (In Re Speers)
Bankr. E.D. Ark. · 2000 · confidence medium
United States v. Foust (In re Foust), 52 F.3d 766, 769 (8th Cir.1995); Ford Motor Credit Co. v. Owens, 807 F.2d 1556, 1559 (11th Cir.1987); Mercury Marine Acceptance Corp. v. Wheeler (In re Wheeler), 96 B.R. 201, 204 (W.D.Mo. *146 1988); McGraw v. Weeks, 326 Ark. 285, 294 , 930 S.W.2d 365, 370 (1996) (citing Cash v. Carter, 312 Ark. 41 , 847 S.W.2d 18 (1993)).
cited Cited as authority (rule) Erickson v. Halverson (In Re Halverson)
Bankr. D. Minn. · 1998 · confidence medium
United States v. Foust (In re Foust), 52 F.3d 766, 768 (8th Cir. 1995)(per curiam), citing Grogan v. Garner, 498 U.S. 279, 291 , 111 S.Ct. 654 , 112 L.Ed.2d 755 (1991).
cited Cited as authority (rule) United States v. Balsam Corp.
Bankr. E.D. Mo. · 1997 · confidence medium
The Court conducts a de novo review of the Bankruptcy Court’s legal conclusions, see e.g., In re Foust, 52 F.3d 766, 768 (8th Cir.1995).
discussed Cited as authority (rule) Security Bank v. Wehri (In Re Wehri) (2×)
Bankr. D.N.D. · 1997 · confidence medium
United States v. Foust (In re Foust), 52 F.3d 766, 769 (8th Cir.1995) (per curiam).
discussed Cited as authority (rule) 36 Collier bankr.cas.2d 1463, Bankr. L. Rep. P 77,076 in Re Jerry Waugh, Debtor. Jerry Waugh v. Reuben Eldridge Sandra Eldridge James C. Luker, Trustee
8th Cir. · 1996 · confidence medium
Although the district court's conclusions about the bankruptcy court's decision may carry some persuasive weight, our appellate review of the bankruptcy court's decision is independent of the district court's opinion. 24 United States v. Foust (In re Foust), 52 F.3d 766, 768 (8th Cir.1995) (per curiam) (citations omitted). 25 The bankruptcy court's determination of whether a party acted willfully and maliciously inherently involves inquiry into and finding of intent, which is a question of fact.
cited Cited as authority (rule) Jerry Waugh v. Reuben Eldridge
8th Cir. · 1996 · confidence medium
United States v. Foust (In re Foust), 52 F.3d 766, 768 (8th Cir.1995) (per curiam) (citations omitted).
discussed Cited as authority (rule) Princess House, Inc. v. Kraft (In Re Kraft)
Bankr. W.D. Mo. · 1996 · confidence medium
In United States v. Foust (In re Foust), 52 F.3d 766, 768 (8th Cir.1995), the Court inferred malice when debtor engaged in a pattern of deceit by selling his corporation’s crop at distant elevators, depositing proceeds in his personal accounts, reporting small yields to FmHA, and claiming someone stole crop from his silo.
discussed Cited as authority (rule) Rossi, McCreery & Assoc., Inc. v. Abbo (In Re Abbo)
Bankr. N.D. Ohio · 1996 · confidence medium
United States v. Foust (In re Foust), 52 F.3d 766, 768 (8th Cir.1995) (citing Grogan v. Garner, 498 U.S. 279, 291 , 111 S.Ct. 654, 661 , 112 L.Ed.2d 755 (1991)); Transamerica Commercial Finance Corp. v. Littleton (In re Littleton), 942 F.2d 551 , 554 (9th Cir.1991) (citing Grogan); Bethesda Hospital v. Kessnick (In re Kessnick), 174 B.R. 481, 484 (S.D.Ohio 1994) (citing Gro-gan ) (other citations omitted).
discussed Cited as authority (rule) In Re Wiley (2×)
N.D. Iowa · 1995 · confidence medium
In reviewing the district court’s disposition of the appeal, the court of appeals, as a second court of appeals, “sit[s] in the same position as did the district court.” See, e.g., Affeldt v. Westbrooke Condominium Assoc., 60 F.3d 1292, 1294-95 (8th Cir.1995); In re Kjellsen, 53 F.3d 944, 946 (8th Cir.1995); In re Foust, 52 F.3d 766, 768 (8th Cir.1995); In re Montgomery, 37 F.3d 413, 414-15 (8th Cir.1994); In re Wagner, 36 F.3d 723 , 726 (8th Cir.1994); In re Jones, 31 F.3d 659, 661 (8th Cir.1994).
cited Cited "see" JPMorgan Chase Bank v. Daniel Johnson
8th Cir. · 2013 · signal: see · confidence high
See United States v. Foust (In re Foust), 52 F.3d 766, 768 (8th Cir.1995).
discussed Cited "see" Madera v. Ameriquest Mortgage Co. (In Re Madera)
3rd Cir. · 2009 · signal: see · confidence high
See In re Foust, 52 F.3d 766, 768 (8th Cir.1995) (holding that district court erred by supplementing the bankruptcy court’s record with new evidence); see also In re Colorado Corp., 531 F.2d 463, 467 (10th Cir.1976) (“It is clear that the district court cannot receive evidence when reviewing a finding or an order by the bankruptcy judge.”).
discussed Cited "see" First American Title Insurance v. Lett (In Re Lett)
Bankr. W.D. Mo. · 1999 · signal: see · confidence high
In Barclays American/Business Credit, Inc. v. Long (In re Long), 774 F.2d 875, 879 (8th Cir.1985), the Eighth Circuit Court of Appeals commented that “a conversion of property (a simple interference with legal rights) is not enough in itself to prevent discharge of a debt,” id. at 879 , and formulated the following two-part test to determine whether a conversion, specifically a transfer in breach of a security agreement, constitutes a willful and malicious injury under § 523(a)(6): “The conduct must be (1) headstrong and knowing (‘willful’) and, (2) targeted at the creditor (‘mali…
discussed Cited "see, e.g." In Re: Woldeyohannes
D. Conn. · 2023 · signal: see, e.g. · confidence medium
See, e.g., In re Foust, 52 F.3d 766, 768 (8th Cir. 1995) (holding that the district court committed error by supplementing the bankruptcy court’s record with additional testimony); In re Branding Iron Motel, Inc., 798 F.2d 396 , 399 (10th Cir. 1986) (“Just as the court of appeals may not conduct an evidentiary hearing for a bankruptcy appeal, so too a district court may not conduct such hearing when it is acting in its capacity as an appellate court.”).
discussed Cited "see, e.g." One American Bank v. Jacobson (In re Jacobson)
Bankr. D. Iowa · 2015 · signal: see also · confidence medium
Kawaauhau, 523 U.S. at 61 , 118 S.Ct. 974 ; see also United States v. Foust (In re Foust), 52 F.3d 766, 769 (8th Cir.1995) (finding that the debtor knowingly converted a security interest and intended to injure the creditor where the debtor sold the grain subject to the security interest and then reported it stolen).
Retrieving the full opinion text from the archive…
Bankr. L. Rep. P 76,482 in Re James D. Foust, Debtor. United States of America
v.
James D. Foust
94-1758SI.
Court of Appeals for the Eighth Circuit.
Jun 23, 1995.
52 F.3d 766
Kevin R. Query, Des Moines, IA, argued, for appellant., John H. Neiman, West Des Moines, IA, argued, for appellee.
Arnold, Heaney, Fagg.
Cited by 22 opinions  |  Published
PER CURIAM.

The government appeals the district court’s reversal of the bankruptcy court’s decision to deny James Foust a discharge of debts owed to the Small Business Administration (SBA) and the Farmers Home Administration (FmHA). See 11 U.S.C. § 523(a) (1988). We reverse and remand with instructions to reinstate the bankruptcy court’s decision denying James Foust a discharge.

James Foust and his brother John operated Foust Brothers Farms, Inc., a corporation that farmed several hundred acres in south-central Iowa. The Foust brothers also owned or controlled nearly twenty other corporations, which the Fousts used to conduct various farm-related activities. In 1984 and 1985, the Fousts obtained disaster farm loans for Foust Brothers Farms from the SBA and FmHA. The FmHA loan was secured by the Fousts’ 1985 crops and crop proceeds. The Fousts made only three payments on the SBA loan and no payments on the FmHA loan before John and James Foust filed bankruptcy petitions in 1988.

On behalf of the SBA and FmHA, the government filed bankruptcy claims against each brother and sought to have both Fousts denied a bankruptcy discharge of the SBA and FmHA debts. After a seven-day trial, the bankruptcy court issued a detailed opinion concluding both James and John Foust should be denied a discharge of the SBA and FmHA debts, because the Fousts had obtained the loans from the SBA and FmHA by actual fraud, see 11 U.S.C. § 523(a)(2)(A) (1988), and had willfully and maliciously converted the FmHA’s security interest in the Fousts’ crops and crop proceeds, see 11 U.S.C. § 523(a)(6) (1988). The bankruptcy court determined that James and John Foust defrauded the SBA and FmHA by intentionally misleading the agencies into believing Foust Brothers Farms, the recipient of the disaster loans, was run separately from the Fousts’ other corporations, when in fact the[*768] Fousts operated all their corporations with mixed assets and funds. The bankruptcy court found the Fousts’ deception prevented the SBA and FmHA from fully assessing the creditworthiness of the Fousts’ farming operation when the agencies made the loans. The bankruptcy court also determined James and John Foust had willfully and maliciously converted the FmHA’s security interest in the Fousts’ 1985 crops by selling the crops to distant grain elevators and placing the proceeds in the Fousts’ personal bank accounts at a time when payments on the FmHA loan were coming due. The court found the Fousts attempted to cover up the conversion by reporting extremely small yields for 1985 and by claiming someone had stolen the grain from their silo.

On appeal to the district court, the district court took testimony from James Foust and reversed the bankruptcy court’s decision to deny James Foust a discharge. The district court found James Foust had relatively little involvement in the financial operations of the Fousts’ corporations and was not as sophisticated as John Foust. Concluding § 523(a) required the government to prove its claims by clear and convincing evidence, the district court determined the government failed to show James Foust had intentionally defrauded the SBA and the FmHA, or had willfully and maliciously converted the FmHA’s collateral.

The government now contends the district court committed error by supplementing the bankruptcy court’s record with James Foust’s testimony. We agree. Because the district court was sitting as an appellate court reviewing the bankruptcy court’s decision to deny discharge, the district court should not have taken additional testimony from James Foust. See Branding Iron Motel, Inc. v. Sandlian Equity, Inc. (In re Branding Iron Motel, Inc.), 798 F.2d 396, 399 (10th Cir.1986).

We also agree with the government’s contention that the district court committed error by concluding the government had to prove its claims by clear and convincing evidence. In Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991), the Supreme Court held that the preponderance of the evidence standard applies to the dischargeability exceptions in § 523(a). Thus, the district court erroneously held the government to a higher standard of proof than § 523(a) requires.

Despite the district court’s errors, we need not remand this case for reconsideration by the district court. When reviewing a bankruptcy court’s decision to deny discharge, we apply the same standard of review that the district court is supposed to apply: we review the bankruptcy court’s factual findings for clear error and its conclusions of law de novo. Sinclair Oil Corp. v. Jones (In re Jones), 31 F.3d 659, 661 (8th Cir.1994). Although the district court’s conclusions about the bankruptcy court’s decision may carry some persuasive weight, our appellate review of the bankruptcy court’s decision is independent of the district court’s opinion. See Heartland Fed. Sav. & Loan Ass’n v. Briscoe Enters., Ltd. (In re Briscoe Enters., Ltd), 994 F.2d 1160, 1163 (5th Cir.), cert. denied, — U.S. -, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993). Thus, instead of remanding the case for further review by the district court, we can proceed independently to review the bankruptcy court’s decision based on the bankruptcy court’s record.

Having reviewed the bankruptcy court’s record, we find ample support for the bankruptcy court’s conclusion that James Foust should be denied a discharge. James Foust was a director of several of the Fousts’ corporations, was well aware of how the corporations were run, signed loan agreements and supporting documents for the SBA and FmHa, and never disclosed the fact that the Fousts did not keep the assets or finances of Foust Brothers Farms separate from their other corporations. Thus, the evidence supports the bankruptcy court’s finding that James Foust intentionally defrauded the SBA and FmHA. See Caspers v. Van Horne (In re Van Horne), 823 F.2d 1285, 1288 (8th Cir.1987) (intentional nondisclosure of material fact can be actual fraud under § 523(a)(2)(A)). The bankruptcy court’s record also shows that in late 1985 and early 1986, James Foust sold significant amounts of corn to grain elevators along the Missis[*769] sippi River, deposited proceeds from the grain sales in his personal bank account, and participated in reporting purported thefts of grain from the Fousts’ silo. We believe this evidence was sufficient for the bankruptcy court to find James Foust knowingly took grain subject to the FmHA’s security interest, sold the grain far from the Fousts’ farms to conceal the sales, put the proceeds in his personal account, and fabricated reports of grain thefts to cover up the scheme, all at a time when payments on the FmHA loan were coming due. Thus, the evidence also supports the bankruptcy court’s finding that James Foust knowingly converted the FmHA’s security interest and knew the conversion would almost certainly harm the FmHA, as required for a willful and malicious conversion under § 523(a)(6). See Barclays Am./Business Credit, Inc. v. Long (In re Long), 774 F.2d 875, 881 (8th Cir.1985).

Accordingly, we reverse and remand with instructions to reinstate the bankruptcy court’s decision denying James Foust a discharge of debts owed to the SBA and FmHA.