Portis Borgata Complaint

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IN THE UNITED STATES BANKRUPTCY COURTFOR THE NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

In re:

CLINTON PORTIS, Case No. 15-10274-KKS

Chapter 11Debtor.

/

MARINA DISTRICT DEVELOPMENTCOMPANY, LLC, d/b/a BORGATA HOTELCASINO & SPA,

Adv. Case No.: ____________Plaintiff,

v.

CLINTON PORTIS,

Defendant./

COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT

Plaintiff, Marina District Development Company, LLC d/b/a Borgata Hotel Casino & Spa

(“Borgata” or the “Plaintiff”), by and through the undersigned counsel, files this Complaint to

Determine Dischargeability of Debt against the Debtor and Defendant herein, Clinton Portis

(“Debtor” or “Defendant”), and states as follows:

PROCEDURAL ALLEGATIONS

1. This Adversary Proceeding is brought in connection with Defendant’s Chapter 11

case bearing United States Bankruptcy Court for the District of Florida, Gainesville Division,

Case No. 15-10274-KKS.

2. This Court possesses jurisdiction over this Adversary Proceeding Complaint

pursuant to 28 U.S.C. § 1334.

Case 16-01001-KKS Doc 1 Filed 02/01/16 Page 1 of 23


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3. This is a core proceeding pursuant to 28 U.S.C. § 157(b).

4. This is an action to establish dischargeability of a debt under 11 U.S.C. §§

523(a)(2)(A), 523(a)(2)(B), and 523(a)(6).

FACTUAL ALLEGATIONS

5. On or about November 5, 2015, Defendant filed a Chapter 11 Bankruptcy

petition in the United States Bankruptcy Court for the Northern District of Florida, Gainesville

Division. See Bankr. Case No. 15-10274; Doc. 1.

6. Defendant is the Debtor in this Chapter 11 case.

7.

At all times relevant, Borgata operated a hotel/casino/entertainment complexknown as Borgata Hotel Casino & Spa in Atlantic City, New Jersey.

8. Borgata is, and at all times relevant hereto was, a holder of a casino license issued

by the New Jersey Control Commission which authorized it to operate a casino hotel in

accordance with the Casino Control Act and the regulations promulgated thereunder.

9. In January 18, 2011, Defendant submitted a Casino Credit Application (the

“Application”) to the Borgata. In his Application, Plaintiff made representations to the effect

that he had no financial problems or debt. These representations were reasonably relied upon by

Borgata, which then approved and a line of credit in favor of Defendant.

10. On numerous occasions subsequent to the approval of Defendant’s initial

Application for casino credit, Borgata extended credit on Defendant’s behalf.

11. As set forth in the annexed Exhibit “A”, through his line of credit at Borgata,

Defendant executed numerous checks to Borgata, six (6) of which were presented to the bank

and returned on the dates set forth therein. A copy of the front and back of these checks have

been annexed hereto and made a part hereof as Exhibit “B”.



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12. Borgata is a general unsecured creditor of the Debtor in the amount of One

Hundred Seventy Thousand Dollars ($170,000.00) (“Borgata’s claim”) based upon six returned

(6) counter checks (“Bad Checks”) executed and delivered by the Defendant.

13. These Bad Checks were drawn on the account Defendant provided to Borgata for

the purposes of their issuance and redemption, specifically the account held by Defendant at

Bank of America, Annandale, VA, account number 435017532194 (the “Bank”).

14. These Bad Checks were submitted for deposit, consistent with the applicable

provisions of the New Jersey Casino Control Act, and the applicable regulations relating thereto.

15.

Upon information and belief, at the time Defendant endorsed the Bad Checks, heknew that the Bad Checks would not be honored by the Bank as the account balance had already

been depleted and/or Defendant had planned to deplete the account prior to the time within

which the Bad Checks would have been redeemed by Borgata.

16. The counter-checks issued and endorsed by the Defendant contained, to the

immediate left of the signature, a statement which says the following: “I represent that I have

received cash and that said amount is available or on deposit in said bank or trust company

in my name. It is free from claims and is subject to this check. If dishonored interest will

be added at 12% per annum”

17. Borgata reasonably relied upon this representations made by the Defendant that

funds equal to the amount of the Bad Checks would be available for Borgata, said funds totaling

One Hundred Seventy Thousand Dollars ($170,000.00).

18. Defendant made material misrepresentations of fact insofar as he represented to

Borgata that there would be sufficient funds in his account. Reasonably relying upon such



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material misrepresentations, Borgata provided Two Hundred Thousand Dollars ($200,000.00) in

cash or gaming chips to Defendant for his use.

19. When the Bad Checks were not repaid and redeemed at the casino during the

redemption period, Borgata deposited the checks in question in accordance with its obligations

under the Casino Control Act.

20. Notwithstanding the Defendant’s representations, each of the checks bearing

check numbers 1154146, 1154150, 1154151, 1154157, 1154158, 1154182 were returned to

Borgata as “NSF,” meaning Not Sufficient Funds.

21.

Various demands were made upon Defendant for the repayment of the OneHundred Seventy Thousand Dollars ($170,000.00) in returned Bad Checks.To date, however,

Defendant has made only six payments of Five Thousand Dollars ($5,000.00) each for a total of

thirty Thousand Dollars ($30,000.00) Dollars toward the amount owed.

22. Consequently, there remains a balance due and owing of One Hundred and

Seventy Thousand Dollars ($170,000.00), plus interest and attorneys’ fees.

COUNT I(Non-Dischargeability Pursuant to 11 U.S.C. § 523(a)(2)(A))

The allegations contained in paragraphs 1 through 22 are restated in their entirety.

23. Borgata’s claim is non-dischargeable under the provisions of the United States

Bankruptcy Code including, but not limited to, 11 U.S.C. § 523(a)(2)(A), which provides that:

“A discharge under . . . this title does not discharge an individual debtor from any debt for—

money, property, services, or an extension, renewal, or refinancing of credit, to the extent

obtained by—false pretenses, a false representation, or actual fraud . . .”



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24. As a result of the fraudulent conduct and materially false representations made by

Defendant, Borgata asserts that its unsecured claim is non-dischargeable against Defendant in an

amount of One Hundred Seventy Thousand Dollars ($170,000.00).

25. The Defendant incurred the debt in question through the use of written statements

which were knowingly materially false and upon which Borgata reasonably relied in connection

with the redemption of the markers in question, providing Defendant with One Hundred Seventy

Thousand Dollars ($170,000.00) in cash or gaming chips.

26. The Debtor’s issuance of a Bad Check is a false pretense because such checks are

made under the express and implied representation that it will be honored.27. Borgata suffered losses in the amount of One Hundred Seventy Thousand Dollars

($170,000.00) as a result of Defendant’s materially false representations.

28. The debt owed by Defendant to Borgata remains outstanding and, for the reasons

set forth above, is a non-dischargeable debt pursuant to the provisions of 11 U.S.C. § 523(a)(2).

WHEREFORE, Borgata demands the entry of Judgment declaring that the One Hundred

Seventy Thousand Dollars ($170,000.00) debt in question owed by Defendant to Borgata to be

non-dischargeable and, further, awarding Borgata interest, reasonable attorney’s fees and costs.

COUNT II(Non-Dischargeability Pursuant to 11 U.S.C. § 523(a)(2)(B))


29. Section 523(a)(2)(B) provides that: “A discharge under . . . this title does not

discharge an individual debtor from any debt for—use of a statement in writing—that is

materially false; respecting the debtor’s or an insider’s financial condition; on which the creditor

to whom the debtor is liable for such money, property, service or credit reasonably relied; and

that the debtor caused to be made or published with intent to deceive.”



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30. As a result of the Debtor’s materially false representations, Borgata asserts that its

unsecured claim is non-dischargeable against Defendant in an amount of One Hundred Seventy

Thousand Dollars ($170,000.00).

31. On January 18, 2011, Defendant submitted the Application (to the Borgata. In the

Application, Plaintiff made representations to the effect that he had no financial problems or

debt. These representations were reasonably relied upon by Borgata, which then approved and a

line of credit in favor of Defendant.

32. The Debtor’s line of credit was extended several times based on representations

by the Debtor which proved to be false.33. Based on information and belief, the Debtor knew such representations were

materially false at the time they were made and made such representations to induce Borgata to

extend credit to him.

WHEREFORE, Borgata demands the entry of Judgment declaring that the One Hundred

Seventy Thousand Dollars ($170,000.00) debt in question owed by Defendant to Borgata to be

non-dischargeable and, further, awarding Borgata interest, reasonable attorney’s fees and costs.

COUNT III(Non-Dischargeability Pursuant to 11 U.S.C. § 523(a)(6))


34. On January 18, 2011, Defendant submitted the Application to Borgata. In the

Application, Plaintiff made representations to the effect that he had no financial problems or

debt. These representations were reasonably relied upon by Borgata, which then approved and a

line of credit in favor of Defendant.

35. Based on these material misrepresentations Defendant’s line of credit was

subsequently increased, at Defendant’s request, on various occasions. Plaintiff contends the



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Submitted this 1st Day of February, 2016.

Respectfully submitted,

GENOVESE JOBLOVE & BATTISTA , P.A.

Counsel for the Plaintiff100 Southeast Second Street, 44 th FloorMiami, Florida 33131Telephone: 305-34-2300Facsimile: 305-349-2310

By: /s/ Glenn D. Moses_______Glenn D. Moses (FBN 174556)

and

COOPER LEVENSON P.A.Co-Counsel for Plaintiff1125 Atlantic Avenue, Suite 301Atlantic City, NJ 08401Telephone: 609-344-3161Facsimile: 609-344-0939

By: /s/ Eric A. Browndorf_____Eric A. Browndorf, Esq.



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Documents

Portis Borgata Complaint