          United States Court of Appeals
                     For the First Circuit

No. 13-1869

                    IN RE: ANDREA LEVASSEUR,

                             Debtor.


         OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY,

                            Appellee,

                               v.

                       ANDREA LEVASSEUR,

                           Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]


                              Before
                       Lynch, Chief Judge,
                Stahl and Lipez, Circuit Judges.


     David G. Baker on brief for appellant.
     Howard M. Brown, David C. Phalen, Lauren A. Solar, and
Bartlett Hackett Feinberg P.C. on brief for appellee.



                        December 16, 2013
              LYNCH, Chief Judge. A customer's taking advantage of her

bank's mistake led to this case. Andrea Levasseur appeals from the

district court's affirmance of the bankruptcy court's determination

that her debt to Old Republic National Title Insurance Company

("Old Republic") was not dischargeable in bankruptcy because it was

for   money     she   obtained   by   false   pretenses,   see    11   U.S.C.

§ 523(a)(2)(A), and because it was a debt arising from willful and

malicious injury, see id. § 523(a)(6).         Finding no error in either

the bankruptcy or the district court decisions, we affirm.             See In

re Levasseur, No. 12-12414-DPW, 2013 WL 2436688 (D. Mass. June 3,

2013); In re Levasseur, 482 B.R. 15 (Bankr. D. Mass. 2012).

              This case is clear, and there is no need to write

extensively, given the reasoning offered by the bankruptcy and

district courts.       See Moses v. Mele, 711 F.3d 213, 216 (1st Cir.

2013).

                                      I.

              The bankruptcy court made the following findings of fact,

based in part on its own assessment of Levasseur's testimony.             In

March 2003, Levasseur1 entered into a loan agreement with Fleet

Bank for a home equity line of credit secured by a second mortgage

on her home on Wethersfield Street in Rowley, Massachusetts.             The

original Home Equity Line credit limit was $124,200.             At the same


      1
       At this point, Levasseur was known as Andrea Sullivan. On
October 17, 2003, she married William Levasseur and took his name.
We refer to her as Levasseur throughout.

                                      -2-
time, Levasseur also opened an ordinary Fleet Checking Account, for

which Fleet sent her a starter check booklet. The checking account

number, 9467788365, appeared at the bottom of the starter checks.

The checks allowed her to draw on her available credit by writing

checks on this checking account, up to her credit limit.

          On November 14, 2003, Levasseur sold the Rowley Property,

and from the sale proceeds paid off both her first mortgage and the

Fleet Home Equity Account in full.          Levasseur knew that the Home

Equity Account would no longer be available to her when she sold

the Rowley Property.    Since she had no equity left in the Rowley

Property, there was no equity to secure a home equity line of

credit to her.    She had worked as a real estate agent and had

participated in closings before.

          By the time of the events of this case, Levasseur was

living   with   her   family    in    a    different   home   in   Byfield,

Massachusetts that she purchased in June 2003, and she had notified

Fleet of her new address.      She did not, however, notify Fleet that

she sold the Rowley Property.

          Sometime before June 1, 2005, Fleet and Bank of America

merged, and Bank of America became the successor by merger to Fleet

with respect to Levasseur's Home Equity Line and checking account.

Periodically, Levasseur received statements at her new address from

Fleet or Bank of America regarding the Home Equity Account, because

the credit line had never been formally closed following the sale


                                     -3-
of the Rowley Property.2        One such statement indicated that the

available credit on the Home Equity Line was $124,200.                   The

bankruptcy court found that from such statements, Levasseur knew it

was possible that Fleet and Bank of America had inadvertently left

the line of credit open.

              By June 2005, Levasseur's husband's business was in

financial distress, and her family was having trouble paying its

bills on time.     On June 15, she wrote a $50,000 check, made payable

to "Andrea P. Sullivan," her former name, using one of her Fleet

starter checks, which she had been provided to use with the

checking account she had opened.        The check displayed her checking

account number, 9467788365; however, in the memo line, she wrote

"75620032059124," which was her Home Equity Line account number.

She endorsed the back of this check with two signatures: one as

Andrea   P.    Sullivan   and   the   other   as   Andrea   Levasseur.   She

deposited that check into a Georgetown Savings Bank account that

she shared with her husband.          As of that date, the Fleet/Bank of

America checking account bearing the number on the bottom of the

starter check, 9467788365, was a closed account.

              On June 16, she obtained an official check from Bank of

America's Newburyport branch for $100,000 on her Fleet Home Equity

Line, which she also deposited in her Georgetown Savings account.


     2
       Although the Home Equity Account had been paid in full, the
formal discharge of the Home Equity Mortgage was not recorded until
after the events of the case.

                                      -4-
The Newburyport branch, which previously had been a Fleet branch,

was where Levasseur had executed the closing documents for the Home

Equity Line in 2003.

            The   first      check   (for   $50,000)     was    returned    for

insufficient funds around June 21, because that check was drawn on

her closed checking account.         Her Georgetown Savings account was

accordingly debited $50,000.

            On July 19, Levasseur obtained a $24,200 cashier's check

from the same Newburyport branch, again made payable to "Andrea P.

Sullivan," which she endorsed and deposited in the Georgetown

Savings account as well.        The June 16 and July 19 official checks

totaled $124,200, the exact limit on the Home Equity Line.

            The bankruptcy court also found that the Newburyport Bank

of America tellers, based on available records, could not have

determined that the Home Equity Account should have been closed

when the Rowley Property was sold and that Levasseur's check

requests should accordingly have been denied. The bankruptcy court

found that Levasseur's testimony that she thought at the time that

she was drawing on a different loan than the Home Equity Account

was "thoroughly implausible."         In re Levasseur, 482 B.R. at 25.

            Levasseur then failed to pay back the $124,200 drawn from

the    Rowley   Home   Equity   Account.     Bank   of    America     commenced

foreclosure proceedings on the Rowley Property.                The new owners

were   insured    by   Old   Republic,   which   paid    the   debt   to   avoid


                                      -5-
foreclosure and took an assignment of all of Bank of America's

rights against Levasseur.         In October 2006, Old Republic brought

suit against Levasseur in state court.           When she failed to defend,

a default judgment was entered against her on May 23, 2007.              When

Levasseur failed to satisfy an initial execution of judgment, the

court issued an alias execution on September 12, 2007, in the

amount of $159,845.95 plus postjudgment interest at a rate of 12

percent per year.

          In December 2007, Levasseur filed for bankruptcy.                In

August 2008, Old Republic sought a determination that its pre-

petition judgment was excepted from discharge as a debt for fraud,

false pretenses or misrepresentation, 11 U.S.C. § 523(a)(2), and

willful and malicious injury, id. § 523(a)(6).                 The bankruptcy

court agreed on both grounds, In re Levasseur, 482 B.R. at 30, 32.

We find no error and affirm.

                                         II.

          This court's review directly addresses the bankruptcy

court's decision, and we review findings of fact for clear error

and conclusions of law de novo.           Gannett v. Carp (In re Carp), 340

F.3d 15, 21 (1st Cir. 2003).

          For   the   debt   to     be    non-dischargeable    in   bankruptcy

because it was obtained under false pretenses, see 11 U.S.C.

§ 523(a)(2)(A), Old Republic had to prove that Levasseur made a

false   representation       with        fraudulent   intent    (i.e.,   with


                                         -6-
"scienter"), that she intended to induce the bank to justifiably

rely on her misrepresentation, that the bank did in fact rely on

the representation, and that the reliance caused a pecuniary loss.

See Palmacci v. Umpierrez, 121 F.3d 781, 786 (1st Cir. 1997).          A

false pretense or misrepresentation can be created "when the

circumstances imply a particular set of facts, and one party knows

the facts to be otherwise," and where the silent party "may have a

duty to correct what would otherwise be a false impression." In re

Moen, 238 B.R. 785, 791 (B.A.P. 8th Cir. 1999) (quoting In re

Malcom, 145 B.R. 259, 263 (Bankr. N.D. Ill. 1992)).         Similarly,

scienter is established where an individual "knows or believes that

the matter is not as [s]he represents it to be."         Palmacci, 121

F.3d at 787 (quoting Restatement (Second) of Torts § 526).

          The   record   plainly   supports   the   bankruptcy   court's

conclusion that Levasseur was fully aware that the Home Equity

Account should no longer have been available for her use after the

sale of the Rowley Property. Levasseur had not applied for any new

lines of credit at Bank of America.       The court did not err in

rejecting her implausible contention that she thought she was

drawing on a new line of credit (in the exact amount of the earlier

Home Equity Line).   When she twice visited the Newburyport branch

to obtain certified checks from an account that she knew should not

have been available, Levasseur acted under false pretenses and with

an intent to defraud.


                                   -7-
          As   to     the   remaining     elements   required   under

§ 523(a)(2)(A), the bankruptcy court was again correct.     Levasseur

"did not alert the bank to what [s]he knew to be an error because

[s]he planned to use the error to h[er] advantage."      In re Moen,

238 B.R. at 793.    Her intent was to obtain the two bank checks --

to induce the bank's reliance on her request -- and it is plain

that the bank did in fact rely on her representations.    In light of

the information available to the Bank of America tellers at the

time, it was not at all apparent to them that the account should

have been closed, and their reliance on Levasseur's representations

was justifiable.    See In re Aoki, 323 B.R. 803, 816 (B.A.P. 1st

Cir. 2005) (noting the "relatively low" standard for justifiable

reliance and stating that "a party may justifiably rely on a

misrepresentation even when he could have ascertained its falsity

by conducting an investigation").       Finally, the Bank's pecuniary

losses that resulted from Levasseur's actions are quite clear.

          We affirm the bankruptcy court's finding that the debt is

non-dischargeable under § 523(a)(2)(A).      This alone is sufficient

to sustain the outcome below, but we also affirm the bankruptcy

court's alternative holding that the debt is not dischargeable on

the basis of § 523(a)(6).

          Section 523(a)(6) of the Bankruptcy Code exempts from

discharge any debt "for willful and malicious injury by the debtor

to another entity or to the property of another entity." 11 U.S.C.


                                 -8-
§ 523(a)(6) (emphasis added).        An injury is malicious "if it was

wrongful and without just cause or excuse, even in the absence of

personal hatred, spite or ill-will."              Printy    v. Dean Witter

Reynolds, Inc., 110 F.3d 853, 859 (1st Cir. 1997) (quoting 4

Collier on Bankruptcy ¶ 523.12 (15th ed. 1996)).            The injury must

have been committed in "conscious disregard of one's duties." Id.

Willfulness requires "a showing of intent to injure or at least of

intent to do an act which the debtor is substantially certain will

lead to the injury in question."       In re Neronha, 344 B.R. 229, 231

(Bankr. D. Mass. 2006).

           The record abundantly supports the bankruptcy court's

determination that Levasseur's "objectively wrongful" actions,

"committed in conscious disregard of her duty not to deceive,"

Levasseur,   482   B.R.   at   32,   were   malicious.       Likewise,   the

willfulness requirement was satisfied by Levasseur's deliberate use

of a false pretense -- that the Home Equity Line was and should

still have been available to her following the Rowley Property sale

-- to obtain $124,200 from Bank of America.

           Further, our decision in Printy supports this result.

The debtor in Printy took advantage of a stock brokerage's computer

error,   which   incorrectly   credited     his   account   an   extra   $3.5

million, by withdrawing and borrowing against funds that the debtor

knew he did not own.      110 F.3d at 859-60.      So too here: Levasseur

took full advantage of Bank of America's error in failing to close


                                     -9-
her Home Equity Account when she sold the Rowley property and gave

the Bank no notice of the sale.          The bankruptcy court was correct

to find the debt to be non-dischargeable, and we affirm on those

grounds.       We   need   not   reach     the   other   grounds   for   non-

dischargeability under § 523(a).

             Levasseur mounts an additional argument.          She contends

that the bankruptcy court erred when it granted Old Republic's

motion to strike a portion of her pretrial memorandum and for

sanctions.     The bankruptcy court granted Old Republic's motion

after Levasseur missed multiple deadlines set by the pretrial order

and failed to cooperate in the submission of a joint pretrial

memorandum.     A bankruptcy court "has broad discretion to preserve

the integrity of a pretrial order," and we have noted that "an

appellate court generally should not interfere with a trial court's

decision to admit or exclude evidence based on its interpretation

of its own pretrial order."       Alberty-Vélez v. Corporación de P.R.

para la Difusión Pública, 242 F.3d 418, 423 (1st Cir. 2001).              Our

review is for abuse of discretion, see id., and there was none.

                                   III.

             The judgment of the bankruptcy court is affirmed.           Costs

are awarded to Old Republic.




                                    -10-
