Non-Filing Spouse Suffers Another Texas Homestead Loss

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") capped the amount of a homestead exemption which could be claimed by a debtor that acquired a homestead within 1,215 days prior to bankruptcy.    Currently, the amount of the cap, as set by 11 U.S.C. Sec. 522(p), is $160,375 in equity per debtor.  This cap has resulted in a seismic shift in Texas where the unlimited homestead exemption is part of the State Constitution.   Now debtors' attorneys must learn how to count to 1,215 and calculate the allowable equity before filing a bankruptcy petition. However, what of the case where only one spouse files?   The short answer is that all community property enters the bankruptcy estate and that the cap is based on the one spouse that filed.   This means that the non-filing spouse can be involuntarily divested of her otherwise sacrosanct homestead interest.    The Fifth Circuit has now ruled on three different variations of this scenario and in each case, including the recent decision in Wiggains v. Reed  (Matter of Wiggains), No. 15-11249 (5th Cir. 2/14/17), which can be found here, the non-filing spouse has come up short.

Fifth Circuit Report: First Quarter 2016

During the first quarter of 2016, the Fifth Circuit handed down some important decisions relating to bankruptcy and debt.     These include cases about how attorneys get paid from PACA proceeds, standing to object, denial of discharge, dismissal for cause, enforcing a chapter 11 plan, preferences, more fallout from the Stanford Ponzi scheme and some cases of general interest.

Click on the style of the case to go to the opinion.   

Fifth Circuit Report: June 2015

This month's Fifth Circuit report doesn't have a lot of bankruptcy sizzle:  an interesting case on abstention and remand,  two unpublished cases about how not to reserve a claim under a plan and a case about suing a trustee.   However, there are some fascinating cases about lenders, liens, fraudulent transfers, the Texas Debt Collection Act and the Fair Debt Collection Practices Act.    The big news here is that the Fifth Circuit vacated its Golf Channel decision and instead certified the question to the Texas Supreme Court.   Here are June's decisions.   (Click on the style of the case to go to the actual opinions).

  

Fifth Circuit's Bankruptcy Opinions from October 2014

It's been a slow month in the Fifth Circuit, my home Circuit with just two bankruptcy-related opinions.   This month's cases involve a non-filing spouse who lost her homestead interest and a bank which provided "reasonably equivalent" value but not enough to constitute a complete defense to a fraudulent transfer claim.

Homestead Exemption; Takings Claim by Non-Filing Spouse

Thaw v. Moser (Matter of Thaw), No. 14-40108 (5th Cir. 10/9/14), which can be found here, is another case of the non-filing spouse losing her homestead interest.   Dr. Stanley Thaw filed bankruptcy while his spouse, Kernell Thaw, did not.  Because the Thaws bought their home within 1,215 days, the exemption was capped at $146,450.   However, because Dr. Thaw had liquidated non-exempt property and used it to pay down the homestead, the Bankruptcy Court reduced the homestead exemption to $0 under Sec. 522(o).   Mrs. Thaw argued that  she had a separate homestead interest in the property and that the Bankruptcy Code provisions which eliminated the homestead exemption constituted an unconstitutional taking.   The Fifth Circuit held that because the homestead was purchased after the adoption of BAPCPA, there was not a valid takings claim.    "The Thaws acquired the property after the enactment of BAPCPA, there is no 'gratuitous confiscation,' and the sale is not 'so unreasonable or onerous as to compel compensation.'”   Opinion, p. 9.

Fraudulent Conveyance; Defense for Providing "Value"

In Williams v. Federal Deposit Insurance Corporation (Matter of Positive Health Management), No. 12-20687 (5th Cir. 10/16/14), which can be found here, the Fifth Circuit required an "innocent" recipient of a fraudulent transfer to return the funds received in excess of value given.     

The Debtor occupied a building which was owned by a related party and was subject to a lien.   The Debtor made the payments on the building as "rent."    Because the Debtor was not obligated on the building loan, Trustee Randy Williams brought suit to recover the funds as fraudulent transfers.   The Bankruptcy Court, having read Stern v. Marshall, submitted proposed findings of fact and conclusions of law to the District Court  which adopted them.    

The Bankruptcy Court found that the Debtor received "reasonably equivalent value" for the payments.    The Court found that the reasonable rental value of the property was $253,333.33 while the amount of the payments received was $367,681.35.   Although these two numbers were not equal, they were "reasonably equivalent."     Nevertheless, the Bankruptcy Court found that the transfers were made with actual intent to hinder, delay or defraud.   Unfortunately for the trustee, the Bankruptcy Court also found that the bank was entitled to a defense under 11 U.S.C. Sec. 548(c) for the reason that it took the payments in good faith and gave value in return.   In determining value, the Bankruptcy Court used the same "reasonably equivalent" standard that it used in determining liability.    The Court of Appeals held that for purposes of the defense, value meant dollar for dollar value.   Because the payments received by the bank were more than the rental value received by the Debtor, the bank had to pay back the excess of $114,348.02.

That's the news from the Fifth Circuit where the judges are strong, the clerks are good looking and all of the lawyers are above average.   (Apologies to Garrison Keillor).  

Fifth Circuit Affirms Stanford Receiver's Fraudulent Transfer Judgment Against Democratic and Republican Committees

In a display of pre-election bipartisanship, the Fifth Circuit affirmed a fraudulent transfer judgment in favor of Stanford International Bank Receiver Ralph Janvey against five Democratic and Republican campaign committees totaling approximately $1.6 million.    Janvey v. Democratic Senatorial Campaign Committee, Inc., No. 11-10704 (5th Cir. 10/23/12), which can be found here. While the opinion involved a receivership rather than a bankruptcy proceeding, the issues under the Texas Uniform Fraudulent Transfer Act have bankruptcy implications as well.

The District Court granted summary judgment to the Receiver on claims that the contributions were made with actual intent to hinder, delay or defraud creditors.    The Receiver alleged, and the District Court agreed, that payments made as part of a Ponzi scheme are presumptively made with intent to hinder, delay or defraud.   According to the Receiver, this shifted the burden to the committees to show a defense such as good faith or reasonably equivalent value.   The Committees did not argue on appeal that the Stanford entities received reasonably equivalent value for their political contributions.   Unfortunately this meant that the opinion did not contain what would have been an interesting discussion of what contributors receive for their donations.   The Committees no doubt concluded that the political risks of arguing that fraudsters receive a reasonably equivalent benefit for their contributions was too dangerous to advance (even if it could have been factually supported).

Instead, the Fifth Circuit addressed three issues.   First, the Court ruled that a Receiver, like a bankruptcy trustee, may pursue claims under the Texas Uniform Fraudulent Transfer Act on behalf of creditors.   The Committee had argued that the Receiver was not himself a creditor and therefore lacked standing to pursue the claims.

Next, the Court concluded that the transfers were made within the applicable limitations period.    Under Tex. Bus. & Com. Code Section 24.010(a)(1), a plaintiff must institute an action to recover transfers under the intent to defraud provision within one year after the later of when the transfers were made or when they "reasonably could have been discovered by the claimant."    In this case, the Receiver was appointed on February 16, 2009 and filed suit on February 20, 2010.    The Committees argued that because records of  the contributions were available online and had been discussed in the media, that the Receiver should have known about them not later than February 18, 2009, which would have made the suit untimely.   Because February 16 was President's Day, the Receiver was not able to gain access to the Stanford offices until February 17.    While this would have given the Receiver two days to discover the fraud, the Fifth Circuit applied a more sympathetic standard.   It stated:

 

Given the extent of the Stanford enterprises, the Receiver’s duties with regard to them, and the extent of the fraudulent transfers, it would not have been reasonable to expect him to immediately discover the fraud.

Opinion, p. 7.   Furthermore, the Court noted that it was the Defendants' burden to prove the limitations defense which meant that they were required to prove when the Receiver should have discovered the fraud.   Apparently, three days to discover a fraud, even one based on publicly available records, was reasonable.  

 

Because 11 U.S.C. Sec. 546 gives a bankruptcy trustee two years to commence an avoidance action, the benefit of the one year discovery rule is not readily apparent.    However, if a transfer took place more than one year prior to bankruptcy but was not readily discoverable during that time, a trustee could still file suit within two years after the order for relief.   Assume that a transfer was made on January 1, 2010 and the Debtor filed bankruptcy on January 1, 2012.    If creditors of the Debtor could not have discovered the transfer during the one year period prior to bankruptcy, then the trustee would have until January 1, 2014 to file suit.   While the discovery rule does not extend the trustee's period of time to file suit after bankruptcy is filed, it would extend the reach-back period for avoiding a transfer made prior to bankruptcy.   

 

Finally, the Fifth Circuit held that federal election law did not preempt TUFTA.    The Federal Campaign Act of 1971 preempts "any provision of State law with respect to election to federal office."    Unfortunately for the Committees, the Court held that generally applicable fraudulent transfer laws are not state laws "with respect to election to federal office."   The Court also held that the federal election laws do not occupy the field of election law so thoroughly as to preempt the suit.   The Court wrote that the federal election law did not apply to a contributor using an impermissible source of funds as opposed to the committee making an improper use of those funds.   Further, the Court noted that the committees' argument would lead to the absurd result that funds "stolen by force or fraud" would be protected so long as the committees otherwise complied with election law.

Because firms likely to fail have been known to curry favor by making political contributions, this opinion may help trustees avoid preemption arguments in the future.  

Stating a Cause of Action on an Avoidance Action After Iqbal

Pleading a claim to recover a preferential transfer is one of the most basic bankruptcy causes of action. Merely by establishing the date, amount and recipient of the transfer, the plaintiff can establish that a transfer was made, within 90 days before bankruptcy while the debtor was presumed to be insolvent. Most preference complaints include this basic information and then the conclusions that the payment was made on account of an antecedent debt and that the transferee received more than it would have received in a hypothetical chapter 7. Anyone who has practiced bankruptcy law for any period of time has seen (or drafted) the form complaint with an exhibit A describing the transfer. Preference complaints are sometimes paired with fraudulent conveyance claims making skeletal allegations.

After Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court signaled that a higher standard would be required for pleading, one of plausibility. Instead of pleading the bare elements of a cause of action, the pleading must contain sufficient facts to make the claim plausible.

How does that apply to common avoidance actions? Judge Craig Gargotta addressed that question in Crescent Resources Litigation Trust v. Nexen Pruet, LLC, Adv. No. 11-1082 (Bankr. W.D. Tex. 1/23/12), which can be found here.

In Nexen Pruet, the Litigation Trust filed a complaint which alleged two causes of action: a preference claim and a fraudulent transfer claim. The complaint included the following:

*A description of the debtors’ cash management system;

*A statement that the debtors’ schedules, statement of financial affairs, disclosure statement and a declaration of the debtors’ CFO (none of which were attached) indicated that the debtors were insolvent at all relevant times;

*An exhibit describing the transfers by date, amount, invoice number and date the check cleared; and

*A statement of each cause of action.

The defendant filed a motion to dismiss for failure to state a cause of action, alleging that the claims were based on “naked assertions devoid of further factual enhancement.” The Court found that both claims should be dismissed without prejudice.

The Court relied extensively upon In re Careamerica, Inc., 409 B.R. 737 (Bankr. E.D. N.C. 2009).

In the case of the preference claim, the Court found that the plaintiff had failed to allege sufficient facts to show that the transfer was made on account of an antecedent debt:

Notwithstanding the Court’s finding that the Trust has sufficiently pleaded the majority of the elements of a preferential transfer action, the Court finds that the Trust has not sufficiently pleaded the existence of an antecedent debt. By contrast to the cases cited above, including those which espouse even the most lenient of pleading standards, the Trust’s Complaint contains no description whatsoever of the Defendant, Nexen Pruet, much less a description of the nature of the relationship between Nexsen Pruet and the Debtors. The Complaint merely contains the conclusory allegation that “[t]he Transfers were made . . . for or on account of an antecedent debt owed by the particular Debtor to the Defendant before such Transfers were made,” with no factual allegations to support this contention (id. at 6). Without more, the Court is unable to infer the existence of an antecedent debt based on the conclusory allegations presented under Count I of the Complaint.

Opinion, p. 12.

With respect to the fraudulent conveyance claim, the Court found that the pleadings with regard to both insolvency and lack of reasonably equivalent had not been adequately pled, concluding:

In this case, like in Caremerica, the Trust’s allegations with respect to the fraudulent transfer claim contained in Count Two of the Complaint do no more than mirror the elements of § 548(a)(1)(B) (see docket no. 1, at 7). The Trust argues that the Complaint, read in its entirety, contains a “detailed pleading of insolvency” and a “clear pleading of reasonably equivalent value.” (Docket no 1 at 9.) Like in Caremerica, however, “other than dates, amounts, and names of transferees included in Exhibit B,” along with general conclusory allegations of insolvency and reasonably equivalent value, the Trust fails to support its allegations with factual assertions. (citation omitted).

First, with regard to insolvency, the Trust alleges that the Debtors’ Schedules, Statements of Financial Affairs, and Disclosure Statement, along with the declaration of the Debtors’ chief financial officer, reflect that the Debtors were “deeply insolvent at all times relevant to the complaint.” (Docket no. 1 at 5.) The Trust did not attach any of these documents to its Complaint nor did it refer the Court to any specific facts provided in these documents that would allow the Court to draw a reasonable inference of insolvency. The Trust further alleges that the Debtors were insolvent “under a number of tests” and then proceeds to describe each test, without providing the applicable facts to support a finding of insolvency under any of them (id.). Second, with regard to reasonably equivalent value, the Complaint contains only one sentence, which states, “The Debtor or Debtors identified on Exhibit B received less than the reasonably equivalent value in exchange for the Transfer(s).” (Docket no. 1, at 7.) In light of Iqbal and Twombly, this Court will not accept such “threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” (citation omitted).

Opinion, pp. 14-15.

The Nexen Pruet opinion has much different implications for the two causes of actions involved. With regard to preference claims, the opinion imposes only a minor burden. In performing its due diligence before filing suit, the plaintiff should have investigated the relationship between the debtor and the creditor and, in particular, should have reviewed the invoices submitted by the creditor. Thus, pleading facts with regard to an antecedent debt should not impose a significant burden. By the same token, it does not provide that much more information to the defendant, who presumably would know this information as well.

The fraudulent conveyance claim is another matter. A preference is a preference primarily because of timing. On the other hand, a fraudulent conveyance could be based on any number of scenarios from a payment made on the debt of another to a payment made to an insider based on made-up invoices. In this regard, the heightened pleading requirements provide useful information to the defendant, as well as requiring the plaintiff to have a theory which would survive scrutiny under Rule 9011. In many cases, a preference claim and a fraudulent conveyance claim will be mutually exclusive. Generally, an antecedent debt implies value. Thus, only an antecedent debt in a transaction for less than reasonably equivalent value could be actionable under both statutes. By requiring a higher standard for pleading fraudulent conveyance claims, the Court protects defendants from having to respond to potentially spurious claims.

TOUSA Fraudulent Conveyance Judgment Reversed by District Court

In a 113 page opinion, U.S. District Judge Alan S. Gold has reversed a controversial fraudulent conveyance judgment in the TOUSA bankruptcy case. In re TOUSA, Inc., Case No. 10-60017 (S.D. Fl. 2/11/11). You can find the opinion here.

A Series of Highly Unfortunate Events

TOUSA involved a network of related companies in the homebuilding business. They obtained liquidity for their operations through a revolving line of credit granted by Citicorp North America as administrative agent ("the Revolver"). Ultimately, the Revolver was guaranteed by the TOUSA subsidiaries and their assets were pledged as collateral.

Meanwhile, TOUSA entered into a Joint Venture with Falcone/Ritchie, LLC to acquire some of the homebuilding assets of Transeastern Properties, Inc. ("the TransEastern JV"). To fund the TransEastern JV, they took out new debt independently of the Revolver (the "TransEastern Debt"). The lenders on this debt were known as the TransEastern Lenders. TOUSA and some, but not all, of its subsidiaries, guaranteed the TransEastern Debt.

The joint venture did not go well and the TransEastern Lenders declared a default.

At this point, Citicorp became uncomfortable and demanded that the TOUSA subs pledge collateral for the Revolver. Because they wanted to continue benefitting from the funds available under the Revolver, they agreed.

Meanwhile, the TransEastern Lenders brought suit against TOUSA and the other parties liable on the TransEastern Debt. TOUSA saw that it had three choices: 1) litigate; 2) file bankruptcy or 3) settle. They didn't believe that they could survive an extensive lawsuit. They also were afraid that if the parent filed bankruptcy, funding for the operating subsidiaries would dry up.

With settlement being the only viable option, they settled. The TOUSA group took out new loans from, appropriately enough, the New Lenders. The debt to the New Lenders was guaranteed by the subsidiaries and the subsidiaries pledged their assets. Citicorp agreed to allow the New Lenders to have an equal lien on the assets that were already pledged to them.

The effect of this transaction was that a larger group of TOUSA companies (the "Conveying Subsidiaries") pledged their assets and guaranteed the new debt where previously, only the parent company and a few subsidiaries had been liable for the TransEastern Debt.

The settlement occurred on July 31, 2007. The TransEastern Lenders received payment of over $426 million on debt exceeding $600 million.

Unfortunately, the settlement with the TransEastern Lenders did not spell the end of the TOUSA troubles. August 2007 was described as a “once in a century credit tsunami,” a “Black Swan” event, and an “economic Pearl Harbor.” TOUSA and many of its subsidiaries filed chapter 11 on January 29, 2008. The Creditors' Committee filed suit against the TransEastern Lenders and the New Lenders asserting that the TransEastern settlement constituted a fraudulent conveyance.

The Bankruptcy Court found that the Conveying Subsidiaries did not receive reasonably equivalent value. The Court found that they did not receive any direct benefit from having their assets encumbered and that, on top of that, they failed to prevent the bankruptcy of the parent company. The Bankruptcy Court dismissed the prospect that the Conveying Subsidiaries would have been harmed by a default under the Revolver caused by the TransEastern litigation.

The Court also found that "the New Lenders and the Transeastern Lenders did not act in good faith and were grossly negligent when they engaged in the July 31 Transaction on the basis that there was 'overwhelming evidence that TOUSA was financially distressed.'” District Court Opinion, p. 38.

The Bankruptcy Court avoided the liens of the New Lenders and ordered the TransEastern Lenders to disgorge the payments it had received and to pay prejudgment interest.

The District Court Opinion

The District Court teed up the issues as:

(1) whether the Transeastern Lenders can be compelled to disgorge to the Conveying Subsidiaries funds paid by TOUSA to satisfy a legitimate, uncontested debt, where the Conveying Subsidiaries did not control the transferred funds, and

(2) whether the Transeastern Lenders are liable for disgorgement as the entities “for whose benefit” the Conveying Subsidiaries transferred the Liens to the New Lenders, where the Transeastern Lenders received no direct and immediate benefit from the Lien Transfer.

District Court Opinion, p. 42.

Parroted Findings Not Entitled to Clearly Erroneous Review

Normally "reasonably equivalent value" would be a fact question reviewed under the clearly erroneous standard. However, the District Court had harsh words for the Bankruptcy Court 's findings. The Bankruptcy Court adopted 446 out of 448 proposed findings from the Committee in whole or in part while adopting none of the 1,600 findings proposed by the Defendants. In its Brief, the Defendants contended that out of 500 pages of post-trial submissions, not "a single case, exhibit or other piece of evidence cited by them appears in the Opinion unless and to the extent it was also cited by the Committee."

The District Court stated:

The “clearly erroneous” standard of review for factual findings is relaxed in circumstances where a lower court adopted one party’s proposed order verbatim. (citation omitted). This practice has been heavily criticized and discouraged by the U.S. Supreme Court and by the Eleventh Circuit. (citation omitted). (“Many courts simply decide the case in favor of the plaintiff or the defendant, have him prepare the findings of fact and conclusions of law and sign them. This has been denounced by every court of appeals save one. This is an abandonment of the duty and the trust that has been placed in the judge by these rules. It is a noncompliance with Rule 52 specifically and it betrays the primary purpose of Rule 52—the primary purpose being that the preparation of these findings by the judge shall assist in the adjudication of the lawsuit. I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case.”) (citing J. SKELLY WRIGHT, SEMINARS FOR NEWLY APPOINTED UNITED STATES DISTRICT JUDGES 166 (1963).

District Court Opinion, pp. 44-45.

I have no way to know whether the Bankruptcy Court's wholesale adoption of the Committee's findings was the result of judicial laziness or simply because the Committee's lawyers were extremely persuasive. However, when the Court simply parrots back the findings proposed by one party, the court has ceased being a neutral arbiter and has become a mouthpiece for the winning party. As the District Court correctly noted, "When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case.”

Before You Can Figure Out If It Was a Fraudulent Conveyance, You Have to Figure Out What Happened

The District Court began its analysis by examining the substance of the transactions.

Those transactions involved three distinct asset transfers:

1. TOUSA caused certain of the Conveying Subsidiaries to convey the liens on their real property assets and become obligated to a collection of financial entities referred here as the New Lenders.

2. In exchange for the liens and the obligations, the New Lenders loaned funds and provided credit facilities, the New Loans, to TOUSA; and

3. TOUSA used the funds from the New Lenders in part to satisfy its $421 million debt to the Transeastern Lenders.

District Court Opinion, p. 47. The District Court then contrasted this analysis with the Bankruptcy Court's findings.

The Bankruptcy Court found the Transeastern Lenders liable under Section 548 on two different bases of liability, for two distinct fraudulent transfers:

(1) as direct transferees of the New Loan proceeds paid in satisfaction of a valid antecedent debt; and (2) as entities “for whose benefit” the Conveying Subsidiaries transferred the liens to the New Lenders. In essence, the Bankruptcy Court found that the Conveying Subsidiaries had a property interest in the New Loan proceeds that TOUSA transferred to the Transeastern Lenders, received only minimal value in exchange for relinquishing that property, and were insolvent. Accordingly, the Bankruptcy Court voided the entire transfer and ordered the Transeastern Lenders to disgorge the funds received in satisfaction of the undisputed debt they were owed. [Op., p. 180–81]. The Bankruptcy Court’s Opinion adopted both of the Committee’s theories of liability in the same language used in the Committee’s post-trial papers with only the barest of word changes, and without attempting to harmonize these two mutually exclusive theories.

District Court Opinion, pp. 47-48.

This passage highlights an important aspect of applying fraudulent transfer law to complex financial transactions. Because these transactions involve multiple transactions and multiple parties, the way that you slice and dice the transactions may determine the outcome. The Bankruptcy Court collapsed the transactions into a single transfer where the assets of the Conveying Subsidiaries were used to pay the debt of the parent TOUSA. On the other hand, the District Court examined each transaction independently.

The District Court Rejects the Direct Transferee Theory

The District Court had no trouble rejecting the theory that the TransEastern Lenders were the recipient of a direct transfer of property of the Conveying Subsidiaries. The loan proceeds from the New Lenders were deposited into an account of a subsidiary which was not one of the Conveying Subsidiaries. The Conveying Subsidiaries never had any control over these funds. As a result, the Conveying Subsidiaries did not have a property interest in the funds paid to the TransEastern Lenders. The control test is important under the Eleventh Circuit decision in In re Chase & Sanborn Corp., 848 F.2d 1196 (11th Cir. 1988).

The District Court was dismissive of both the Bankruptcy Court's reasoning and the arguments advanced by the Committee on appeal.

Without any factual dispute in the record, both the First and Second Lien Term Loan Agreements directed that the proceeds of the New Loans be used to satisfy the Transeastern Settlement. Specifically, Section 4.12 of the agreements required the proceeds of the loans to be used to fund the “Acquisition,” defined as “the contribution by the ‘Administrative Borrower’ [TOUSA] to the Transeastern JV Entities of an amount necessary to discharge all amounts of outstanding indebtedness of the Transeasatern JV Entities.” [Trial. Exh. 360 §§ 1.1, 4.12]. Under the totality of the circumstances, the Bankruptcy Court’s findings and legal conclusions were neither “logical” nor “consistent with the equitable concepts underlying bankruptcy law.”

* * *

The Bankruptcy Court erred by failing to apply the Eleventh Circuit’s control test to the totality of the circumstances as established by the actual documents governing the transactions. Rather, it dismissed the test, expressly rejecting as “clearly wrong” the proposition that ‘control’ is an essential element of any property interest under Section 548. [Op., p. 157]. The Bankruptcy Court expressed the view that a control test “would negate the paradigmatic example of a fraudulent transfer, in which the owner of an insolvent corporation transfers corporate funds to a personal account for his personal use” because the owner’s de facto control over the funds cannot vitiate the corporation’s control over, and property interest in, the funds. [Id. at 158].

District Court Opinion, p. 49, 50-51. Similarly, the Court noted that, "In its Appeal Brief, the Committee offered no substantive response to the Transeastern Lenders’ position that the Conveying Subsidiaries never had any property interest in the New Loan proceeds, and thus transferred nothing to the Transeastern Lenders." District Court Opinion, p. 54.

District Court Finds Clear Error in Finding Lack of Reasonably Equivalent Value

In a mind-numbing discussion, the District Court found that the Bankruptcy Court committed clear error in finding lack of reasonably equivalent value. On the one hand, the Bankruptcy Court found that the Conveying Subsidiaries had only a minimal interest in the loan proceeds because they had been "forced" to agree to the use of these funds to pay the TransEastern Lenders. The District Court held that if the Conveying Subsidiaries had only a minimal interest in the loan proceeds, that they needed only to receive a minimal value to receive reasonably equivalent value.

The approaches taken by the Bankruptcy Court and the District Court illustrate the difference between a forest or the trees approach. The Bankruptcy Court looked at the forest. It concluded that the Conveying Subsidiaries' assets were encumbered to pay a debt of the parent. The District Court looked at the trees. The Conveying Subsidiaries encumbered their assets in return for loan proceeds. If those loan proceeds were used improvidently, that did not change the fact that they received reasonably equivalent value from the loan itself. They all had boards and the boards voted to approve the transaction.

At this point, the District Court opinion has an almost Alice in Wonderland quality. If you encumber your assets in return for loan proceeds in which you have a minimal interest, you need only receive minimal value in return. Of course, if the assets were encumbered by full value liens and the Conveying Subsidiaries received only a minimal interest in the net proceeds, it stands to reason that there is a disconnect here.

Indirect Value Is Still Value

The District Court returned to surer footing when it analyzed the question of indirect value. The Bankruptcy Court held that if the Conveying Subsidiaries did not receive direct value, that the TransEastern Lenders had the burden to prove receipt of indirect value. However, the District Court noted that the Plaintiff had the burden to prove lack of reasonably equivalent value, whether it was direct or indirect. Thus, the Bankruptcy Court placed the burden of proof on the wrong party.

The District Court concluded that "the record establishes beyond dispute that the Conveying

Subsidiaries themselves, as compared to only the TOUSA Parent, received indirect economic benefits, constituting reasonably equivalent “value,” in exchange for their lien transfers." District Court Opinion, pp. 63-64.

The District Court found that the Bankruptcy Court committed an error of law when it held that avoiding default under the Revolver could not constitute value to the Conveying Subsidiaries.

Nonetheless, I conclude that the Bankruptcy Court committed legal error in holding that the “avoidance of default and bankruptcy by the Conveying Subsidiaries” is as a matter of law “not property and therefore is not cognizable as ‘value’” under Section 548 of the Bankruptcy Code.

District Court Opinion, p. 64.

I think this is an important conclusion. Using the forest and the trees analogy again, at the forest level, it was reasonable for the Conveying Subsidiaries to conclude that avoiding the financial decapitation of their parent was in their collective interest. As Ben Franklin once said, "We must all hang together or we shall all hang separately." However, in this case, the Bankruptcy Court was looking at the trees when it concluded that the Conveying Subsidiaries encumbered their assets for the gratuitous benefit of their parent. If the economy had not descended into an economic black hole, the decision of the Conveying Subsidiaries to attempt to save themselves by saving their parent would have been quite sound. Reasonably equivalent value must be determined based on July 31, 2007 rather than August 2007.

The District Court opinion goes on for another fifty pages. However, the most important part is on page 64.

The District Court opinion is Act II of a drama which will continue to at least Act III and possibly Act IV. What it does is set forth two very different approaches to the same problem. The Eleventh Circuit panel which receives this appeal will have some deep thinking in store for them.

Debtor Wins Big Damages in Fraudulent Conveyance Case

When fraudulent transfer claims arise in bankruptcy, the debtor is usually accused of being the dishonest transferor. However, in a recent case from Chief U.S. Bankruptcy Judge Ronald King, the Debtor successfully pursued a claim against her disbarred ex-husband. Galaz v. Galaz, Adv. No. 08-5043 (Bankr. W.D. Tex. 11/12/10). The opinion can be found here.

A Tangled Procedural Web

The procedural context of the case is incredibly complex (but fortunately is not necessary to understand the 14 page opinion). Denise Vernon sued Lisa Galaz in a dispute over a company called Worldwide Subsidy Group, LLC. Lisa then filed chapter 13. Both Denise and Lisa's ex-husband Raul filed non-dischargeability complaints against Lisa. Lisa removed Denise's action to bankruptcy court. Lisa then sued Raul as a third party defendant relating to the WSG transactions. While this action was pending, Lisa also sued Raul, his father Alfredo and their company Segundo Suenos, LLC for transactions arising out of another company called Artists Rights Foundation, LLC ("ARF"). After mediation, Denise and Lisa settled their claims and those disputes were dismissed. Raul then tried to force Lisa to join Julian James, the other member of ARF. Instead, the Court allowed Raul to file a third party claim against Julian. Julian filed a claim against Raul. Thus, by the time the case went to trial, Lisa and Julian were asserting claims against Raul, Alfredo and Segundo Suenos, who asserted claims back against them.

The Underlying Facts

So what gave rise to all these dead trees? It all had to do with the right to collect royalties from the popular funk and soul group The Ohio Players. Raul and Julian formed ARF to collect royalties relating to The Ohio Players. When Raul and Lisa were divorced, Lisa was awarded 1/2 of Raul's interest in ARF. Raul then sent a notice to Julian seeking to remove him as a member due to failure to pay expenses related to ARF (including legal fees charged by Raul after he was disbarred as a California attorney). Raul sent this notice to the address designated in the LLC agreement even though he knew that Julian would not receive this notice. Raul then unilaterally conveyed the assets of ARF to Segundo Suenos, LLC and dissolved ARF.

The Issues

The issues at trial were:

1. Was the transfer from ARF to Segundo Suenos, LLC void for failure to be authorized by the company?
2. Was Raul collaterally estopped to deny the invalidity of the transaction?
3. Was the transfer a fraudulent conveyance?
4. Did Raul breach his fiduciary duty to Lisa and Julian?

A Short Course in LLC Law

The Court's ruling highlights the intricacies of limited liability company law. Under the LLC agreement, Raul and Julian were the members of the company. The divorce decree awarded Lisa 1/2 of Raul's interest. Under the LLC agreement, assignees were deemed to hold an "economic interest" in the LLC but would not be members unless agreed to by all of the members. By signing off on the Divorce Decree, Raul agreed to allow Lisa to be a member. However, Julian did not. As a result, Lisa held an "economic interest" but was not entitled to vote. Under the LLC agreement, if a member failed to respond to a written request for capital contributions within 10 days, his interest could be converted into an "economic interest." Raul sent a notice to Julian at the address specified in the LLC agreement and Julian did not respond. However, this was not surprising, since Raul knew that Julian would not receive a notice sent to this address.

Raul contended that he had carte blanche to convey the ARF assets because he was the only voting member. He contended that Lisa was never a member and that Julian ceased being a member by virtue of the notice. The Court held that he was half right. As an assignee, Lisa did not have the right to participate in management due to Julian's failure to approve her as a member. However, the notice sent to Julian was not sufficient to take away his vote because it did not identify any specific expenses to pay and was not received by him to boot. Thus, the transfer was not authorized.

The Court also found that Raul was bound by a California Court of Appeals opinion finding that Segundos Sueno had not established its entitlement to the Ohio Players royalties and found that the case contained sufficient badges of fraud to constitute a fraudulent transfer.

Relying on California law, the Court found that members of an LLC owed a fiduciary duty to each other, but not to persons holding an "economic interest" in the company. The California LLC statute expressly adopted the fiduciary standard applicable between general partners which did not reach assignees. As a result, Julian could recover for breach of fiduciary duty but Lisa could not. However, the Court ruled that Lisa and Julian could recover from Raul for fraud.

The Damages

Lisa was awarded actual damages of $250,000 and punitive damages of $250,000, while Julian recovered actual damages of $500,000 and punitive damages of $500,000. The Court ruled that the royalties would vest 50% in Julian, 25% in Raul and 25% in Lisa. It also ruled that Lisa and Julian could collect their damages out of Raul's share.

What Does This Mean for the Chapter 13?

One goal of BAPCPA was to expedite confirmation of chapter 13 plans. This case illustrates that there are some cases that just don't fit that mold. When the case was filed the Debtor scheduled her interest in WSG at $0 and did not list her interest in ARF. If the case had been confirmed at that time based on the facts known at that time, the Debtor would have been required to make a very low distribution to creditors.

However, apparently as the result of the extensive amounts recovered from litigation in the case, the Court ordered the Debtor to pay $200,000 to unsecured creditors plus amounts paid to secured creditors and attorneys. Since the Debtor is already required to effectively pay 100% to unsecured creditors, the recovery from Raul would not appear to increase her obligation to creditors except for one important point. The Debtor was required to make her payment to unsecured creditors in addition to her payments to attorneys. Since the attorney's fees required to litigate the matter were substantial (the court has already approved over $75,000 in fees), the cost to recover the asset is borne directly by the Debtor. It seems a cruel twist of fate that the harder the Debtor and her attorneys had to work to recover funds for the creditors, the more the Debtor is required to pay.

What Does It All Mean?

On one level, this is a case about California LLC law and the difference between a member and the holder of an economic interest. However, on a big picture basis, it is a testament to the perils of dealing with a case involving an ex-spouse and assets that could only be recovered through litigation. When the Debtor's counsel took this case, he most likely did not contemplate that a chapter 13 bankruptcy in San Antonio would generate 418 docket entries in the main case alone. The result of the hard work by Debtor's counsel and Special Counsel is that unsecured creditors will get paid in full.

Tangled Financial Web Allows Assets to Escape Trustee's Reach

A recent opinion by Bankruptcy Judge Craig Gargotta demonstrates the problems arising from the use of cash management systems and also provides an object lesson in why lawyers should have more than a passing knowledge of accounting concepts. In Ingalls v. SMTC Corporation, No. 06-1283 (Bankr. W.D. Tex. 9/11/09), the bankruptcy trustee sought to recover millions of dollars in inter-corporate transfers. After a two week trial, the court issued a 94 page opinion denying all relief.

The case was precipitated when SMTC Manufacturing of Texas filed a chapter 7 petition after divesting its assets. While the debtor paid all of its current trade debt, it also made numerous transfers to insiders leaving it unable to pay a sizeable debt on its lease.

The transfers challenged by the trustee fell into four categories:

1) Payments to the parent company’s affiliates in North Carolina and Mexico;

2) Expense reallocations which increased the Texas company’s share of expenses;

3) Approximately $41 million transferred to the holding company through a cash management system; and

4) Transfer of the debtor’s fixed assets to affiliates.

The Corporate Structure and Cash Management System

To understand the case, it is necessary to understand the relationship between the debtor and its affiliated companies, their cash management system and the companies’ secured debt.

The corporate structure consisted of a parent company, SMTC Corporation, which owned a holding company, HTM Holdings, Inc. HTM owned the operating companies, including SMTC Manufacturing of Texas.

The companies used a cash management system which centralized their funds. Prior to March 2002, the operating companies would deposit funds into their operating accounts which would be swept into a zero balance account maintained by the holding company. The funds in the zero balance account would be applied to the holding company’s debt to Lehman Brothers. As funds were needed by the operating companies, they could either be paid from funds deposited into the operating account that day or funds advanced from the Lehman Brothers loan. Beginning in March 2002, Lehman Brothers required that all funds be deposited into a lockbox account so that the only funds available for operations came from the Lehman Brothers loan.

Lehman Brothers provided a revolving credit line to the holding company which was used to fund the operating companies. The parties kept track of how much money was paid to and paid from each of the operating companies. This number was their portion of the debt. However, each of the operating companies guaranteed the entire debt and pledged their assets. To the extent that any operating company paid more than its individual balance on the loan, it had a right of contribution against the other operating companies.

While the Texas company initially enjoyed a period of rapid growth, it ran into trouble in 2002. In mid-2002, SMTC Texas laid off about half of its employees and moved its manufacturing operations to Mexico. The cost of labor in Mexico was $3.00 per hour compared to $19.00 in Texas. However, even this was not enough to allow the debtor to meet Dell’s pricing demands so that it eventually dropped (or disengaged from) Dell as a customer. After that, it lost Alcatel as a customer and corporate decided that it was time to close the doors. The debtor surrendered its leased facilities in May 2003 and filed chapter 7 in December 2004. Significantly, the other affiliated companies continued to operate and did not file bankruptcy. The chapter 7 trustee looked at all of the transfers out of SMTC and cried foul, leading to a fraudulent transfer complaint.

Was There A Transfer?

The first major issue which the court had to consider was whether there had been any “transfers” at all. Under the Texas Uniform Fraudulent Transfer Act (TUFTA), the definition of a transfer excludes “property to the extent it is encumbered by a valid lien.” The defendants argued that no “transfers” occurred because:

1) Each individual asset transferred was worth less than the amount of the total debt: and

2) Because the debtor was liable for the entire Lehman debt, its collective assets had no equity.

The court ruled against the asset by asset approach. It found that if there was equity in the debtor’s collective assets that transfer of individual assets from that pool would be deemed to be made from the unencumbered portion of the assets rather than the encumbered ones.

This made it necessary to determine whether there was equity in the debtor’s collective assets, raising some difficult accounting issues. The difficulty arose because of the interplay between the following facts:

1) The debtor’s assets were greater than its share of the Lehman Brothers loan at some points in time;

2) The debtor had guaranteed the entire Lehman Brothers loan, which far exceeded its assets; and

3) The SMTC family of companies was making all of their payments n the Lehman Brothers loan, although there were some covenant defaults.

This raised the question of what portion of the Lehman Brothers debt should be accounted for on the debtor’s balance sheet. The trustee argued that the debtor’s obligation on the Lehman Brothers debt was a contingent obligation which did not belong on the balance sheet because of the low probability that the debtor would be called upon to perform. The defendants argued that the entire amount should be included because the debtor was unconditionally liable.

The court agreed that the debt was a contingent liability. However, whether a contingent liability should be stated on the debtor’s balance sheet depended on the likelihood that the contingency would occur and that it would affect the debtor’s balance sheet. A contingent liability could be shown on the balance sheet if the contingency was likely to occur, could be referenced in a footnote or could be omitted entirely if the contingency was unlikely to occur.

The court found that the appropriate way to measure the contingent liability was to apply a percentage to the likelihood that the guaranty would be called upon and multiply that percentage by the amount of the debt. The trustee argued that the appropriate percentage was 0% based on the fact that the SMTC companies had not defaulted upon the debt and that the debt was later paid off. The court rejected this argument because the SMTC companies had defaulted under their loan covenants and that the debt was only paid off through a restructuring in which Lehman Brothers accepted stock in partial satisfaction. Because the possibility that the debtor would be called upon to satisfy the guaranty was greater than 0% and the trustee did not advance an alternate number, the court refused to exclude the debt as a contingent liability.

However, that was not the end of the inquiry. Even though the debtor could be called upon to pay the entire debt, it had a right to contribution from its co-debtors. This was an asset which needed to be added to the balance sheet. The court assumed that the value of the right of contribution was equal to the portion of the debt which exceeded the debtor’s individual account. This may have been a leap of faith, since the court did not analyze the ability of the other companies to pay their portions. However, given that the debt was retired without payment from SMTC Texas, it may have been a reasonable conclusion. The net result was that for determining the debtor’s equity in its assets, the court examined the value of the debtor’s assets minus the amount of the debtor’s portion of the Lehman Brothers loan. The result of this analysis was that the debtor had equity in its assets until March 2003. Once the debtor reached the no equity stage, it could transfer its assets away without risk because they had no net value and were not “transfers” under TUFTA.
The effect of the court’s ruling was to exclude the transfer of the fixed assets and $3.9 million of the cash transferred through the cash management system.

Note that the result would not be the same in an action brought under 11 U.S.C. §548. The definition of “transfer” under the Bankruptcy Code does not exclude encumbered property. 11 U.S.C. §101(54). Thus, it is possible to bring a fraudulent conveyance action to recover a fully encumbered piece of property under the Bankruptcy Code, while the same transfer would not be covered under the Texas statute.

Fraudulent Conveyance Analysis

Under the Texas statute, like the Bankruptcy Code, a transfer can be avoided as a fraudulent conveyance if it is made “with actual intent to hinder, delay or defraud any creditor” or if it was made for less than reasonably equivalent value while insolvent. Actual intent can be shown through direct evidence or through badges of fraud. TUFTA, unlike the Bankruptcy Code, legislatively defines eleven badges of fraud. The badges of fraud are:

1. The transfer was to an insider;

2. The debtor retained possession or control of the property transferred after the transfer;

3. The transfer or obligation was concealed;

4. Before the transfer was made or obligation incurred, the debtor had been sued or threatened with suit;

5. The transfer was of substantially all the debtor’s assets;

6. The debtor absconded;

7. The debtor removed or concealed assets;

8. The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;

9. The debtor was insolvent or became insolvent shortly after a substantial debt was incurred;

10. The transfer occurred shortly before or after a substantial debt was incurred; and

11. The debtor transferred the essential elements of the business to a lienor who transferred the assets to an insider of the debtor.

Tex. Bus. & Com. Code §24.005(b).

The list of badges of fraud raises several interesting issues. First, the issues of solvency and reasonably equivalent value are included in the badges of fraud. Thus, it would make sense to determine these issues first, since a positive finding on these two elements would eliminate the need to determine the other nine badges of fraud. The other implication is that since solvency and reasonably equivalent value are just two of eleven badges of fraud, a transfer can be fraudulent even though the debtor was solvent at the time or received reasonably equivalent value. The second interesting question is how many badges of fraud are enough. The meticulous Judge Gargotta noted that the presence of “many” badges of fraud “will always make out a strong case of fraud” and that four or five have been found to be sufficient in some cases. On the other hand, one badge of fraud is not enough. Once a sufficient number of badges of fraud are established, then the burden shifts to the transferee to establish some “legitimate supervening purpose.”

Analysis of Actual Intent to Hinder, Delay or Defraud

Judge Gargotta chose to do the more difficult analysis of intent to hinder, delay or defraud first. His decision on these issues effectively decided the constructive fraud issue as well.

The Judge rejected the trustee’s arguments regarding direct evidence of fraudulent intent. The Trustee contended that emails discussing the possibility of bankrupting the Texas company and “walking away” from the lease combined with failure to produce board minutes where these options were discussed was proof that the corporate parent intended to defraud the lessor. The trustee also argued that the debtor hindered the lessor when it failed to make several payments on the lease when it had the cash to do so. The court was not moved by this evidence. Discussing the option of bankrupting the company and walking away from the lease did not go one step further and establish intent to transfer the assets away. The court did not give any particular significance to failure to produce the board minutes, refusing to draw an inference that the minutes would have been harmful.

This led to a discussion of badges of fraud. As a preliminary matter, Judge Gargotta had already determined that the debtor was insolvent throughout the relevant period. As a result, one badge of fraud and half of the constructive fraud analysis had already been decided. It was not contested that the transfers were made to insiders, so that a second badge of fraud was present. However, at this point, the trustee hit a wall as the court failed to find any additional badges of fraud.

Badge 1: Transfers were made to insiders. This badge was not disputed.

Badge 2: The debtor retained possession or control of the property transferred. This badge was not present.

Badge 3: The transfer or obligation was concealed. All of the transactions were recorded on the debtor’s books. The transfers were all properly documented. As a result, this badge was not present.

Badge 4: Before the transfer was made, the debtor had been threatened with suit. The debtor was not sued until after it shut down in May 2003.

Badge 5: The transfer was of substantially all the debtor’s assets. Collectively the transfers were of substantially all the debtor’s assets. However, individually none of them were. Furthermore, because the Texas statute excluded fully encumbered assets from the definition of “transfer,” the final series of transfers were not considered. As a result, when the last transfer which could be considered to be a transfer was made, the debtor still had assets left, defeating this badge.

Badge 6: The debtor absconded. This was another badge implicated by the definition of transfer. Because the only “transfers” which could be considered were those occurring prior to March 2003, this badge did not apply because the debtor was still operating its business at this time.

Badge 7: The debtor removed or concealed assets. This badge is similar to badge 3. However, instead of concealing transactions, it relates to concealing assets. However, the result is the same. Since the debtor accounted for all of the transfers in its records, it did not conceal assets.

Badge 8: Reasonably equivalent value. I will return to this badge.

Badge 9: The debtor was insolvent or became insolvent. The court found this issue was present.

Badge 10: The transfer occurred or the obligation was incurred shortly before or shortly after a substantial debt was incurred. The only major debt which the debtor had was its lease. This was incurred on September 1, 2001. All of the disputed transfers occurred during 2002 and 2003. As a result, this badge was not present.

Badge 11: The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. This was not present.

Based on the definition of transfer and facts which were not seriously contested, the most badges of fraud that could be established was three. Thus, the whole case boiled down to reasonably equivalent value.

Reasonably Equivalent Value

1. The Trustee challenged $104,646.00 in payments to SMTC Charlotte from February 2002 to June 2002 and $37 million to SMTC Mex/SMTC Chihuahua from February 2002 to February 2003.

While these transfers were substantial, the defendants established that the SMTC companies transferred their manufacturing operations from Texas to Mexico to take advantage of lower wages. However, Dell continued to place orders with SMTC Texas, which then filled them with product purchased from SMTC Mex and SMTC Chihuahua. The Debtor added a mark-up to the product purchased from Mexico before it sold it to Dell. The defendants produced invoices, bills of lading and other documents to establish that the transfers to the affiliated companies were for payment of product actually purchased which the debtor sold for a profit. Thus, this group of transfers was factually shown to be for reasonably equivalent value.

2. The Trustee challenged approximately $2 million in expense reallocations between the debtor and the corporate office.

The defendants established that the expense reallocations were based on recommendations from the companies’ accountants and were reasonable. Thus, this set of transactions was supported by reasonably equivalent value.

3. The Trustee challenged $37 million in funds which were upstreamed to the holding company by the cash management system.

This looked to be the trustee’s strongest claim. Between January 2002 and December 2003, the Debtor transferred $41 more to the holding company than it received back. This seemed to be a simple cash in cash out analysis showing a net transfer without reasonably equivalent value. However, this was a case where the complexities of the cash management system worked against the trustee. The court concluded that the trustee’s expert only considered transactions running through the debtor’s bank account and not transactions reconciled at the corporate level. Because many inter-corporate transactions were handled through reconciliations, the court found that an analysis of the bank statements only was insufficient to show whether the debtor received reasonably equivalent value.

The Court stated:

The Trustee has not provided the Court a complete picture that explains specifically why reasonably equivalent value was not received. What the ZBA Master Bank Reconciliation demonstrates is that the $41.1 million figure that was derived solely by analyzing the bank accounts does not accurately reflect the payments made to SMTC Mex or any of the other affiliates on behalf of the Debtor via intercompany transfers. The Trustee failed to account for this reconciliation in his explanation as to what effect these transactions would have on reasonably equivalent value. He therefore has not proved the absence of reasonably equivalent value by a preponderance of the evidence.

Opinion, p. 70.

With this finding, the trustee’s case was doomed.

Why It’s Hard To Be The Trustee

This was a difficult case for the trustee. He was faced with a debtor which had transferred all of its assets to affiliates (although it also paid $3.9 million to trade creditors). However, the case turned into a battle of the accountants. The trustee starts off at a disadvantage in a battle of experts because the trustee usually starts off without any cash to pay experts. In this particular case, the trustee sought to employ an accountant on a contingent fee basis. Unfortunately, this violated the disciplinary rules governing accountants in Texas and the court disqualified the expert. The trustee then had to retain another accountant to testify based on the first accountant’s compilations. The court did allow the first accountant to testify as a fact witness. Thus, the defendant had access to its own expert accountant which it retained as well as the defendants’ management, while the trustee had to start over with a new expert who was looking in from the outside.

Concluding Thoughts

SMTC illustrates the difficulties arising from inter-related companies with a common cash management system. The SMTC companies succeeded in walling off SMTC Texas and allowing it to fail. Despite the fact that many of the assets were transferred to affiliates, it was extremely difficult to unscramble the companies’ finances. The court successfully worked through the issues related to contingent liabilities and rights of contribution. However, it found that the trustee’s expert had failed to account for all of the value provided to the debtor. The result was not based on knowing the answer, but on uncertainty resulting from the inability to fully deconstruct the companies’ intertwined finances. While the defendants may have prevailed in any circumstance, the complexity of the arrangement was certainly an assisting factor for the defense.