UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT
April 11, 2013
IN RE: FRANCISCO LUJAN GARCIA AND LIDUVINA GARCIA GARCIA, DEBTORS. J. TONY SERRA, APPELLANT,
JAMES E. SALVEN, CHAPTER 7 TRUSTEE, APPELLEE.
Appeal from the United States Bankruptcy Court for the Eastern District of California Honorable W. Richard Lee, Bankruptcy Judge, Presiding Bk. No. 08-14334 Adv. No. 09-01104
SUSAN M SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT
Submitted without Oral Argument on March 22, 2013
Filed - April 11, 2013
Before: DUNN, JURY and MARKELL, Bankruptcy Judges.
Shortly before filing their chapter 7 bankruptcy petition, 2 Francisco Lujan and Liduvina Garcia Garcia ("debtors") paid 3 appellant, J. Tony Serra ("Serra"), in advance for his 4 representation of their son in a criminal case.*fn2 The chapter 7 5 trustee ("Trustee") initiated an adversary proceeding against 6 Serra seeking to avoid the payment as a fraudulent transfer under 7 § 548(a)(1)(B). The bankruptcy court ruled in the Trustee's 8 favor, finding that he met his burden of proof under 9 § 548(a)(1)(B).
On appeal, Serra challenges only the bankruptcy court's 11 determinations as to whether the funds used to pay him were the 12 debtors' property and whether the debtors received "reasonably 13 equivalent value" for the transfer to Serra. We AFFIRM.
On May 1, 2008, the debtors' son, Miguel Angel Garcia, was 17 booked into Madera County jail on an attempted murder charge. On 18 May 15, 2008, the debtors paid $30,000 ("funds") to Serra, an 19 experienced criminal attorney, on their son's behalf to represent 20 him in the criminal case. The debtors paid Serra by personal check from their joint bank account ("transfer").*fn4 Serra cashed the check the next day. He later acknowledged in a letter, dated August 28, 2008, that he received the check from the debtors ("receipt letter").
The debtors filed their chapter 7 bankruptcy petition on July 22, 2008. They did not disclose the transfer in their statement of financial affairs ("SOFA") or their schedules.
The debtors later amended their SOFA to disclose the transfer ("amended SOFA"). They listed the transfer date as May 16, 2008, and Serra as the transferee. They also stated the following:
Debtors' son, Miguel Angel Garcia, was charged with a crime. Friends and family entrusted Debtors with approximately $29,000.00 to pay criminal defense attorney, J. Tony Serra, on son's behalf.
Approx. $1,000.00 was transferred from son, Miguel Angel Garcia, to debtors, to also pay attorney J. Tony Serra.
Total for attorney fees was $30,000. NO VALUE
Notably, the debtors did not amend their schedules to list as creditors the friends and family members who allegedly contributed portions of the funds.
The Trustee is the duly appointed trustee in the debtors' chapter 7 case. He initiated an adversary proceeding against Serra by filing a complaint to avoid the transfer under §§ 548 and 550*fn5 and to order Serra to turn over the transfer under § 542 ("complaint").*fn6 Representing himself, Serra answered the complaint with a general denial.
The Trustee later moved for summary judgment ("summary judgment motion"). He argued that no genuine issues of material fact existed because all of the elements to avoid the transfer under §§ 548 and 550 had been met. To buttress his summary judgment arguments, the Trustee pointed out that he sent Serra a request for admissions ("admissions request"). In the admissions request, he asked Serra to confirm the check's authenticity, the date and the amount of the transfer and the purpose of the transfer. The Trustee contended that the admissions request was deemed admitted when Serra failed to respond.
Serra did not answer the summary judgment motion but instead filed his own motion for summary judgment ("cross-motion"), asserting two affirmative defenses. First, he contended that the good faith exception under § 550(b)(1) applied.*fn7 Second, Serra argued that the debtors did receive reasonably equivalent value for the transfer in the form of their son's love, satisfaction that they performed their moral and familial duties, and a "heightened self-esteem" brought about by increased respect from family and friends for their sacrifice.
The Trustee opposed the cross-motion, contending that the good faith exception under § 550(b)(1) did not apply because Serra was the initial transferee. He also pointed out various procedural defects, including Serra's failure to provide a statement of undisputed facts and to serve a notice of hearing with the cross-motion.
On November 18, 2009, the bankruptcy court held a hearing on the summary judgment motion and cross-motion ("summary judgment hearing").*fn8 Serra did not appear personally at the summary judgment hearing, but had another non-bankruptcy attorney appear on his behalf.*fn9 Serra's attorney requested that the bankruptcy court continue the summary judgment hearing to allow Serra to find a bankruptcy attorney and to file a response to the summary judgment motion. Tr. of November 18, 2009 hr'g, 6:19-23, 7:23-25. The bankruptcy court denied Serra's request for a continuance of the summary judgment hearing. Tr. of November 18, 2009, 8:17.
1 The bankruptcy court also denied the cross-motion "as being 2 in improper form and not supported by evidence." Tr. of 3 November 18, 2009 hr'g, 4:21-23. It further noted that the 4 cross-motion had not been served with a notice of hearing. Tr. 5 of November 18, 2009 hr'g, 4:23.
6 The bankruptcy court went on to grant the Trustee's summary 7 judgment motion concluding that no triable issues of material 8 fact existed. It determined that the debtors made the transfer 9 two months prepetition. The bankruptcy court also determined 10 that the debtors did not receive consideration for the transfer, 11 i.e., that they did not "receive anything in return that 12 enhanced the bankruptcy estate." Tr. of November 18, 2009 hr'g, 13 8:24-25. It acknowledged that though the debtors "were trying in 14 good faith to help their son . . . the measure of consideration 15 here [under § 548 was] not good will and good feelings . . . it 16 [was] whether the estate received anything back of value that 17 could be used to pay creditors." Tr. of November 18, 2009 hr'g, 18 9:11-16. It also determined that the debtors were insolvent at 19 the time they made the transfer: that there was "substantially 20 more debt when they filed bankruptcy than they have assets and no 21 evidence of anything that would cause the decrease in the assets 22 in the two months prior to the filing of the bankruptcy." Tr. of 23 November 18, 2009 hr'g, 9:4-7.
24 Serra appealed to the district court, which affirmed the 25 bankruptcy court on all but one of its determinations. The 26 district court found that the bankruptcy court did not rule on 27 the issue of whether the funds were the debtors' property. The 28 district court concluded that it was unclear "whether the [Trustee] established this element pursuant to summary judgment standards, and whether the bankruptcy court considered the evidence in the record." Order on Bankruptcy Appeal, 17:7-9. The district court remanded that single issue to the bankruptcy court for its determination. The bankruptcy court held a trial on the remanded issue on June 1, 2012. Two days before the trial, Serra filed a document titled, "Defendant's Submission." In it, he advised the bankruptcy court that he waived both his appearance at and participation in the trial.*fn10 Counsel for the Trustee appeared at the trial, but Serra did not. At the outset of the trial, the bankruptcy court noted that Serra had waived his appearance at and participation in the trial. Tr. of June 1, 2012 hr'g, 3:13-22.
The Trustee's counsel requested that the bankruptcy court enter all of the Trustee's exhibits as evidence, including copies of the check, the receipt letter and the debtors' bankruptcy schedules. Tr. of June 1, 2012 hr'g, 4:9-20. The bankruptcy court admitted all of the exhibits into evidence with no opposition from Serra. Tr. of June 1, 2012 hr'g, 4:19-20.
At the close of argument, the bankruptcy court pointed out that Serra did not provide any evidence regarding the contributions made by the debtors' friends and family to the 1 funds; no evidence was given "as to when that was done, when it 2 was put in [the debtors'] account, how long it was there, whether 3 it was commingled with other money." Tr. of June 1, 2012 hr'g, 4 8:1-3. The bankruptcy court stressed that it was "not prepared 5 to find, based on that representation alone, that the debtors 6 were just a conduit for this money." Tr. of June 1, 2012 hr'g, 7 8:4-6. It found that the check was the debtors' property. Tr. 8 of June 1, 2012 hr'g, 8:17-18. It thus ruled in the Trustee's 9 favor. Tr. of June 1, 2012 hr'g, 8:22.
10 The bankruptcy court issued a minute order requiring the 11 Trustee to submit factual findings and legal conclusions by 12 June 14, 2012. Civil Minute Order. It allowed Serra until 13 June 21, 2012, to file an opposition. Id.
14 Serra timely filed his opposition, arguing that the evidence 15 did not support the bankruptcy court's ruling. Defendant's 16 Objection to Court's Ruling of June 1, 2012. He contended that 17 the sole issue before the bankruptcy court was whether the 18 debtors were a conduit for the funds paid to him. Serra argued 19 that the check did not address this issue; no evidence had been 20 presented as to "the origin of [the funds;] whether it was 21 provided by others; whether it was a loan to Debtors; when it was 22 put into the account[;] whether it was derived from multiple 23 deposits, and from multiple checks from others." Defendant's 24 Objection to Court's Ruling of June 1, 2012, 2:4-7. He further 25 noted that the debtors had not been examined. Defendant's 26 Objection to Court's Ruling of June 1, 2012, 2:7-8.
27 The bankruptcy court issued its memorandum decision on 28 July 17, 2012. It found that the Trustee met his burden in demonstrating that the funds were the debtors' property. It determined that the evidence showed that the debtors wrote a personal check in the amount of $30,000, payable to Serra from their joint bank account. It further noted that Serra had acknowledged in the receipt letter that the check came directly from the debtors.
The bankruptcy court reasoned that because the debtors' names appeared on the check, it follow[ed] that Debtors had control over the associated bank account along with any funds in that account, including the $30,000 that was later transferred. Given this control, the Debtors presumably had an ownership interest in the funds located in their bank account immediately before the Debtors transferred them to Serra via a personal check.
Memorandum Decision after Trial, 5:21-25.
It noted that Serra did not introduce any evidence "rebutting this presumption and showing that the $30,000 can be traced to another source other than from the Debtors." Memorandum Decision after Trial, 6:2-3. Because he did not appear at or participate in the trial, Serra failed to introduce any evidence to rebut this presumption. Because it already formally decided the other elements of the Trustee's fraudulent transfer claim, the bankruptcy court ruled in his favor. It entered judgment against Serra on October 5, 2012.*fn11 Serra appealed.
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(E) and (H). We have jurisdiction under 28 U.S.C. § 158.
1) Did the bankruptcy court err in determining that the funds were the debtors' property?
2) Did the bankruptcy court err in determining that the 1 debtors did not receive reasonably equivalent value for the 2 transfer?
3 STANDARDS OF REVIEW
4 We review the bankruptcy court's factual findings for clear 5 error and its legal conclusions de novo. Decker v. Tramiel 6 (In re JTS Corp.), 617 F.3d 1102, 1109 (9th Cir. 2010).
7 A factual finding is clearly erroneous if it is "illogical, 8 implausible or without support in the record." Retz v. Samson 9 (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010). Where there 10 is admitted evidence in the record to support the bankruptcy 11 court's fact findings, an appellate court cannot substitute its 12 views of the facts for those of the bankruptcy court. Anderson 13 v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985). "Where 14 there are two permissible views of the evidence, the factfinder's 15 choice between them cannot be clearly erroneous." Id. at 574.
18 A) Property of the debtor
19 To avoid a transfer as fraudulent under § 548(a)(1)(B), a 20 bankruptcy trustee must demonstrate that: 1) the transfer 21 involved the debtor's property; 2) the transfer was made within 22 two years of filing the bankruptcy petition; 3) the debtor 23 received less than reasonably equivalent value in exchange for 24 the transfer; and 4) the debtor was insolvent at the time of the 25 transfer or became insolvent because of it. Wyle v. C.H. Rider & 26 Family (In re United Energy Corp.), 944 F.2d 589, 594 (9th Cir. 27 1991). The bankruptcy trustee bears the burden of proof by a 28 preponderance of the evidence. See, e.g., Western Wire Works, 1 Inc. v. Lawler (In re Lawler), 141 B.R. 425, 428 (9th Cir. BAP 2 1992)("[T]he preponderance of the evidence standard applies in 3 all bankruptcy proceedings grounded in allegations of fraud.") 4 (citing Grogan v. Garner, 498 U.S. 279, 286-87 (1991)). See also 5 5 Collier on Bankruptcy ¶ 548.11[b](Alan N. Resnick & Henry J. 6 Sommer, eds., 16th ed. rev. 2012)(stating that because the 7 bankruptcy trustee will be the plaintiff in a § 548(a) action, he 8 has the burden of establishing his case).
9 On appeal, Serra disputes the bankruptcy court's 10 determination as to whether the funds were the debtors' property. 11 He argues that the bankruptcy court mistakenly relied on the bank 12 statement, which only demonstrated that the funds came from the 13 debtors' bank account. The bank statement did not show the 14 actual source of the funds. Serra contends that there was no 15 evidence showing whether the funds were the debtors' own or an 16 accumulation of funds from different people.
17 Although "the term 'property of the debtor' is not defined 18 in the Bankruptcy Code," it is defined broadly. Danning v. Bozek 19 (In re Bullion Reserve of North America), 836 F.2d 1214, 1217 20 (9th Cir. 1988). Generally, property belongs to the debtor "if 21 its transfer will deprive the bankruptcy estate of something 22 which could otherwise be used to satisfy the claims of 23 creditors." Id. (defining "property of the debtor" within the 24 context of § 547(b)). See also In re Kimura, 969 F.2d 806, 810 25 (9th Cir. 1992)(defining property as "an aggregate of rights; 26 'the right to dispose of a thing in every legal way, to possess 27 it, to use it, and to exclude everyone else from interfering with 28 it.'")(quoting Black's Law Dictionary 1095 (5th ed. 1979)).
1 Here, the Trustee presented evidence demonstrating that the 2 debtors owned the funds. At the trial, his counsel submitted a 3 copy of the check made out to Serra; the check listed the names 4 of both debtors and their home address. Counsel for the Trustee 5 also submitted a copy of the debtors' schedules, which listed a 6 checking account with Wells Fargo Bank from which the check was 7 issued. She also submitted a copy of the receipt letter wherein 8 Serra acknowledged that the debtor, Francisco Lujan Garcia, had 9 paid him by check. Serra did not challenge the admissibility of 10 these documents.
11 Serra complains about the lack of evidence but he himself 12 did not proffer any evidence to counter that proffered by the 13 Trustee. Serra waived his right to present evidence by expressly 14 declining to appear at and participate in the trial. He cannot 15 now cavil the bankruptcy court's finding. 16 Based on the record before us, we determine that the Trustee 17 satisfied his burden of proof by providing evidence demonstrating 18 that the funds paid to Serra were the debtors' property. Serra 19 did not offer any evidence to rebut the Trustee's evidence. We 20 thus conclude that the bankruptcy court did not err in ruling in 21 the Trustee's favor on the § 548(a)(1)(B) claim against Serra.
23 B) Reasonably equivalent value
24 Serra also appeals the bankruptcy court's determination that 25 the debtors did not receive reasonably equivalent value for the 26 transfer. The district court affirmed the bankruptcy court's 27 determination of this issue on summary judgment. Although Serra 28 appealed the district court's ruling, the Ninth Circuit dismissed his appeal because, in light of the district court's decision and remand, the disposition of the adversary proceeding was not final. See infra n.10.
The district court resolved the reasonably equivalent value issue in its decision on Serra's first appeal. If Serra seeks further review of that issue, he must take his arguments to the Ninth Circuit in a further appeal.*fn13 See 28 U.S.C. § 158(a) and (b).
Based on the foregoing discussion and analysis, we AFFIRM.