                                In the
 United States Court of Appeals
                  For the Seventh Circuit
                            ____________

No. 06-3396
IN RE:
   AVIE E. COHEN,
                                                                Debtor.
FISCHER INVESTMENT CAPITAL, INC.,
                                                Plaintiff-Appellant,
                                    v.

AVIE E. COHEN,
                                                Defendant-Appellee.
                            ____________
              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
          No. 06 C 3190—James F. Holderman, Chief Judge.
                            ____________
 ARGUED FEBRUARY 12, 2007—DECIDED NOVEMBER 9, 2007
                   ____________


 Before KANNE, ROVNER and SYKES, Circuit Judges.
   ROVNER, Circuit Judge. In March 2000, Fischer Invest-
ment Capital, Inc. (“Fischer”) loaned $207,000 to Avie
Cohen and his company, The Joblotter Inc. (“Joblotter”).
The loan was secured by, among other things, Joblotter’s
accounts receivable. When Cohen failed to timely repay
the debt, Fischer sued and won a default judgment
against Cohen in state court. But before Fischer could
enforce the judgment, Cohen declared bankruptcy. Fischer
filed an adversary complaint in the bankruptcy court
2                                            No. 06-3396

alleging that the list of Joblotter’s accounts receivable
was false and misleading, that it fraudulently induced
Fischer to make the loan, and that as a result, Cohen’s
debt to Fischer was not dischargable. The bankruptcy
court granted summary judgment to Cohen, ruling that
there was no evidence that the list of accounts receiv-
able was materially false or misleading, or that Cohen
had an intent to defraud Fischer. The district court
affirmed. Our jurisdiction arises under 28 U.S.C. § 1291
and we now affirm as well.


                            I.
  Avie Cohen was in the business of liquidating inventory.
He and Holly Borchert operated Joblotter out of their
home. Through their business, they bought, sold, and
brokered transactions in obsolete, damaged, and over-
stocked goods. In March 2000, Joblotter needed operating
capital and approached Fischer for a loan. Fischer asked
Joblotter to supply a list of accounts receivable to sup-
port the loan application and Borchert provided Fischer
with such a list.
  The list of accounts receivable was a three-page long
hand-written document that purported to show Joblotter’s
accounts receivable at various times in March 2000. The
first page, dated March 9, 2000, showed Joblotter had
receivables totaling $110,409.13. The second page, dated
March 23, 2000, is captioned in large letters “Approx.
Acct.’s Receivable” [sic] and shows receivables of
$104,854.40. The third page is titled “2000 Invoices” and
has no total, but we calculate it as $96,021.81. Some of
the entries on the first two pages, totaling about $26,000
in receivables, do not have invoice numbers assigned to
them. Borchert testified that those receivables without
invoice numbers were “just hopeful” but that she be-
lieved the list to be accurate at the time she gave it to
No. 06-3396                                                3

Fischer. Cohen testified that he did not participate in the
preparation or presentation of the list.
  On March 23, 2007, Fischer loaned $207,000 to Joblotter.
Cohen signed a promissory note and security agreement
that provided that the loan was to be secured by collateral
including “all . . . accounts receivable . . . whether now
existing or hereafter arising or acquired.” Fischer’s
president testified that absent the list of accounts re-
ceivable, Fischer would not have made the loan.
  Joblotter and Cohen were both responsible for repay-
ment of the loan, and both defaulted on it. Fischer sued
them in Illinois state court for breach of the promissory
note and security agreement. The state court entered a
default judgment in favor of Fischer for over half a million
dollars. But Fischer never colleted its default judgment
because shortly after Fischer began collection proceed-
ings, Cohen filed a voluntary petition for relief under
Chapter 7 of the Bankruptcy Code.
  Fischer responded with a timely adversary complaint
in the bankruptcy court alleging that Cohen’s debt was
not dischargable under 11 U.S.C. § 523(a)(2)(B) because
Joblotter’s list of accounts receivable was false and
misleading, and fraudulently induced Fischer to make
the loan. The bankruptcy court granted summary judg-
ment to Cohen, holding that Fischer had failed to produce
any evidence to support two of the requirements for non-
dischargability: material falsity, see § 523(a)(2)(B)(i), and
intent to deceive, see § 523(a)(2)(B)(iv).


                            II.
  We review the bankruptcy court’s grant of summary
judgment de novo, meaning that we will affirm only if
there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law.
4                                               No. 06-3396

See In re Globe Bldg. Materials, Inc., 463 F.3d 631, 632
(7th Cir. 2006). The bankruptcy code provides an exception
to the general rule of discharge in bankruptcy if, in certain
circumstances, the debtor obtained money, property,
services, or credit through the use of false written state-
ments. 11 U.S.C. § 523(a)(2)(B). The statute provides, in
relevant part, that the falsehood must be material and
deliberate:
    “(a) A discharge . . . does not discharge an individual
    debtor from any debt . . . (2) for money . . . 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 . . . reasonably relied; and
    (iv) that the debtor caused to be made or published
    with intent to deceive
11 U.S.C. § 523(a)(2)(B). Thus, to prevail on a claim under
this section, the creditor must prove that the debtor
made a materially false written statement about his
financial condition with the intent to deceive, and that
the creditor reasonably relied on the statement. In re
Sheridan, 57 F.3d 627, 633 (7th Cir. 1995). Because we
apply a presumption in favor of discharge in bankruptcy,
the creditor bears the burden to demonstrate by a prepon-
derance of the evidence that the exception applies. In re
Morris, 223 F.3d 548, 552 (7th Cir. 2000). To stave off
summary judgment, once the moving party has claimed
an absence of evidence supporting an element of the non-
moving party’s case, the non-movant must point to facts
in the record showing there is a genuine issue for trial.
Scaife v. Cook County, 446 F.3d 735, 739 (7th Cir. 2006).
Mere speculation is insufficient to defeat a motion for
No. 06-3396                                               5

summary judgment. Chicago Dist. Council of Carpenters
Pension Fund v. Reinke Insulation Co., 464 F.3d 651, 659
n.4 (7th Cir. 2006).


                            A.
  Fischer’s first argument is that the listed accounts
receivable were materially false because Borchert de-
scribed some of them as “hopeful.” But Fischer points to
nothing in the record to suggest that any of these accounts
receivable, even if merely “hopeful” rather than definite,
lacked a basis in fact. Indeed, Fischer’s president con-
ceded that he did not know (despite bearing the burden of
proof) whether any of the “hopeful” items were not “real
receivables” or were never collected. And of course the
fact that the debt was not repaid proves only that the
promissory note and security agreement was breached, not
that the unpaid debt is exempt from discharge in bank-
ruptcy.
  Fischer’s fall-back position is that many of the entries
on the list of accounts receivable were much larger (be-
tween $1,500 and $35,000) than Joblotter’s “typical”
receivables (between $200 and $2,000), and that there-
fore the list must have been materially false. But even if
we accept that some entries on the list were not typical of
Joblotter’s general receivables, that alone does not sug-
gest that those entries were false, let alone materially so.
Accordingly, the bankruptcy judge’s determination that
Fischer failed to carry its burden of proof with regard to
the alleged material falsity of the list of accounts re-
ceivable is correct.


                            B.
  Fischer next argues that the bankruptcy and district
courts erred in concluding that Fischer failed to supply
6                                               No. 06-3396

evidence that Cohen had an intent to deceive. In support
of its contention, Fischer offers a litany of incidents
bearing on Cohen’s character. For instance, Cohen offered
conflicting testimony on the whereabouts of his Rolex
watch, particular antiques, and certain automobile memo-
rabilia. Cohen also testified at various times that he
does not work, that he occasionally works, and that he
works several times a week. Additionally, Cohen stated
in his bankruptcy petition that he received no income
from employment or operation of his business in 2004,
but in a deposition stated that he received compensation
for “job-lotting” services in the same year. Finally, Fischer
notes that Cohen was convicted of a felony about 20 years
ago for his role in connection with an insurance fraud
scheme.
   All of this may suggest that Cohen has been dishonest
at times. But it was Borchert who prepared the list and
presented it to Fischer. Thus, even if there were inac-
curacies in that list, and even if the evidence of Cohen’s
other dishonest acts were admissible under Federal
Rules of Evidence 404(b) and 609(b), there is still no
basis for attributing to Cohen any inaccuracies in
Borchert’s list. One may speculate that Cohen instructed
Borchert to falsify the list, or that Borchert falsified it
and told Cohen as much. But of course speculation is not
evidence. And further, when he was presented with the
list, Cohen said he did not recognize it and denied know-
ing whether it was given to Fischer. Accordingly, even
if the list was fraudulently prepared by Borchert, there
is no evidence that Cohen knew that to be the case.
   Fischer argues that Borchert’s preparation of the list is
irrelevant because Cohen “adopted and used” the list as his
own. The parties do not dispute that Cohen adopted the
list, but Fischer has forfeited the argument that Cohen’s
adoption of the list necessarily requires a finding that he
intended to deceive Fischer. The argument was not raised
No. 06-3396                                                  7

in Fischer’s response to Cohen’s motion for summary
judgment before the bankruptcy court, nor was it raised in
Fischer’s appellate brief before the district court. The first
time Fischer raised this argument, albeit obliquely, was in
his reply brief in the district court, and this, of course, was
too late. Arguments not raised in the bankruptcy court are
forfeited on appeal. See In re Image Worldwide, Ltd., 139
F.3d 574, 582 (7th Cir. 1998). In any event, the argument
is of no weight because there is no evidence that Borchert
created the list with an intent to deceive Fischer; there
was nothing deceitful for Cohen to “adopt” for himself.


                             III.
  For the reasons stated above, the judgment of the
district court is AFFIRMED.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—11-9-07
