Saturday, June 28, 2014

The Trustee's Artistic Metaphor

Recently I attended a CLE seminar in which the learned professor discoursed on the difference between a metaphor and a simile.   A metaphor is a statement which is not literally true (for example, you never see a wolf actually wearing sheep's clothing) but conveys a truth through comparison.     This discussion came in handy when I came across the following pleading filed by Western District of Texas Trustee John Patrick Lowe who used Whistler's first nocturne as an extended metaphor for the disclosure provided to him in the case.  I provide the pleading for you in its entirety.

Case Summary

It's Whistler's first "nocturne", created in 1871 when he was only 37 years old.  The viewer is on the Battersea bank of the river Thames in London at night looking across to Chelsea on the other bank. A stylized barge is on the river. Lights on the far side of the river reflect across the river surface. And a figure, also stylized, appears on the near bank. An example of what Whistler called "art for art's sake". No lesson of any sort, religious, moral, ethical or otherwise, nothing informative, nothing historical.

Only something created for the thrill of it. And for the thrill created in certain viewers. It's also an example of the manipulation of facts, the suppression of some facts and the enhancement of others. Suppressed were the range of a normal pallette, what with blue, blue, blue but with minor hints of black to distinguish outlines and yellow to depict the reflection of lights on the river Thames. A hundred years later and without the detail it could very well be a "Blue Rothko". Also suppressed were details, something which would enable the viewer to tell where we are, what time of day it is or what's we're looking at. None of the bustle or activity of the day. No buildings really. And one's sense of proportion is put off by the size of the figure in relation to the barge and to objects on the far bank. Enhanced were color, mood, atmosphere. The picture is nothing if not atmospheric.

Paragraph 10 of the Debtor's Statement of Financial Affairs discloses her transfer of interests in real property in Orange and Tyler Counties, Texas to her daughters in May and August of 2012, less than two years prior to the commencement of the case.  Those statements and her testimony at the meetings of creditors were also an example  in the enhancement and suppression of facts. Suppressed were evidence of the value of the interests, the presence in the chains of title of, not necessarily oil and gas leases, but instruments disclosing oil and gas companies' intent to engage in seismic activity with respect to some of the interests, the brutal and extremely material fact that her daughters had peddled on most of what they'd acquired from their mother, the Debtor, shortly after having acquired those interests. Enhanced were her medical condition and the medical conditions of several family members, financial hardship, divorce and the so-called lack of any value to the interests, their extreme "sentimental value" to the family. The interests had been in the family for years and should stay in the family for years, the Trustee was told.

The Trustee had to interpret these stylized facts; adjust his point of view; use his imagination. He discovered the facts which had been suppressed: oil and gas activity; real objective value attributable to the mineral estates; real objective value attributable to the surface estates; the lack of sentimental value as perceived by the Debtor's daughters; the recent resale of most of the interests for dramatically increased prices.  And ignored the facts which had been emphasized. And at the end of the day, the Trustee had settled the estate's claims to avoid the transfers and recover the transferred interests for an amount sufficient to pay all allowed creditors claims a 100% dividend plus post-petition interest.

The Trustee's final report before distribution also proposes a small surplus distribution to the Debtor, her fee, as it were, for having created this beguiling work. Art for art's sake.
 John Patrick Lowe, Case No. 13-11741, Dkt. #25 (Bankr. W.D. Tex. 6/5/14).

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