Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 1 of 23

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

In re:
CLINTON PORTIS,

Case No. 15-10274-KKS

Chapter 11

Debtor.
/
MARINA DISTRICT DEVELOPMENT
COMPANY, LLC, d/b/a BORGATA HOTEL
CASINO & 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 Defendants 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 2 of 23

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 complex

known 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 Defendants initial

Application for casino credit, Borgata extended credit on Defendants 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.

Case 16-01001-KKS

12.

Doc 1

Filed 02/01/16

Page 3 of 23

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

Hundred Seventy Thousand Dollars ($170,000.00) (Borgatas 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, he

knew 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

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 4 of 23

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 Defendants 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 One

Hundred 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.

Borgatas 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 byfalse pretenses, a false representation, or actual fraud . . .

Case 16-01001-KKS

24.

Doc 1

Filed 02/01/16

Page 5 of 23

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 Debtors 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 Defendants 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 attorneys fees and costs.
COUNT II
(Non-Dischargeability Pursuant to 11 U.S.C. 523(a)(2)(B))
The allegations contained in paragraphs 1 through 22 are restated in their entirety.
29.

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

discharge an individual debtor from any debt foruse of a statement in writingthat is

materially false; respecting the debtors or an insiders 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.

Case 16-01001-KKS

30.

Doc 1

Filed 02/01/16

Page 6 of 23

As a result of the Debtors 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 Debtors 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 attorneys fees and costs.
COUNT III
(Non-Dischargeability Pursuant to 11 U.S.C. 523(a)(6))
The allegations contained in paragraphs 1 through 21 are restated in their entirety.
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 Defendants line of credit was

subsequently increased, at Defendants request, on various occasions. Plaintiff contends the

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 7 of 23

initial issuance of the line of credit and subsequent increases were based on material
misrepresentations that Defendant knew were false at the time he filled out the Application.
36.

Based on Defendants written misrepresentations which he knew were materially

false, the Borgata incurred a One Hundred Seventy Thousand Dollars ($170,000.00) debt that
remains outstanding and is a non-dischargeable debt pursuant to the provisions of 11 U.S.C.
523(a)(6).
37.

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.
38.

Upon information and belief, the Debtor knew his available funds to pay the Bad

Checks were insufficient.

39.

The use of Bad Checks by the Debtor when the Debtor knew such checks were

insufficient to be redeemed is a willful and malicious injury to Borgata.

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 attorneys fees and costs.

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 8 of 23

Submitted this 1st Day of February, 2016.

Respectfully submitted,
GENOVESE JOBLOVE & BATTISTA, P.A.
Counsel for the Plaintiff
100 Southeast Second Street, 44th Floor
Miami, Florida 33131
Telephone: 305-34-2300
Facsimile: 305-349-2310
By: /s/ Glenn D. Moses_______
Glenn D. Moses (FBN 174556)
and
COOPER LEVENSON P.A.
Co-Counsel for Plaintiff
1125 Atlantic Avenue, Suite 301
Atlantic City, NJ 08401
Telephone: 609-344-3161
Facsimile: 609-344-0939
By: /s/ Eric A. Browndorf_____
Eric A. Browndorf, Esq.

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 9 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 10 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 11 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 12 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 13 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 14 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 15 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 16 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 17 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 18 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 19 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 20 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 21 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 22 of 23

Case 16-01001-KKS

Doc 1

Filed 02/01/16

Page 23 of 23