Filed: Sep. 26, 2018
Latest Update: Mar. 03, 2020
Summary: 17-3209 Pangea Capital Management, LLC v. Lakian UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _ August Term, 2018 (Argued: September 18, 2018 Questions Certified: September 26, 2018) Docket No. 17-3209 _ PANGEA CAPITAL MANAGEMENT, LLC, Petitioner-Appellant, – v. – JOHN R. LAKIAN, Respondent-Appellee, ANDREA LAKIAN, Intervenor-Appellee. _ B e f o r e: KATZMANN, Chief Judge, CHIN and LOHIER, Circuit Judges. _ Appeal from an order of the United States District Court for the Southern Dist
Summary: 17-3209 Pangea Capital Management, LLC v. Lakian UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _ August Term, 2018 (Argued: September 18, 2018 Questions Certified: September 26, 2018) Docket No. 17-3209 _ PANGEA CAPITAL MANAGEMENT, LLC, Petitioner-Appellant, – v. – JOHN R. LAKIAN, Respondent-Appellee, ANDREA LAKIAN, Intervenor-Appellee. _ B e f o r e: KATZMANN, Chief Judge, CHIN and LOHIER, Circuit Judges. _ Appeal from an order of the United States District Court for the Southern Distr..
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17‐3209
Pangea Capital Management, LLC v. Lakian
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2018
(Argued: September 18, 2018 Questions Certified: September 26, 2018)
Docket No. 17‐3209
_______________
PANGEA CAPITAL MANAGEMENT, LLC,
Petitioner‐Appellant,
– v. –
JOHN R. LAKIAN,
Respondent‐Appellee,
ANDREA LAKIAN,
Intervenor‐Appellee.
_______________
B e f o r e:
KATZMANN, Chief Judge, CHIN and LOHIER, Circuit Judges.
______________
Appeal from an order of the United States District Court for the Southern
District of New York (Kaplan, J.) granting in part and denying in part petitioner‐
appellant Pangea Capital Management, LLC’s motion for a writ of execution
upon the proceeds from the sale of a property previously owned by appellees
Andrea and John Lakian. Pangea, a judgment creditor of John, contends that the
district court erred in declining to award it the entirety of the proceeds, arguing
that its interest in the property took priority over an interest awarded to Andrea
in a divorce judgment, and that the trust in which title to the property had been
held was void as to John’s creditors. Because Pangea’s challenge raises questions
of New York law for which no controlling decisions of the New York Court of
Appeals exist, we CERTIFY questions to the Court of Appeals.
_______________
CAITLIN L. BRONNER (Dean G. Yuzek, on the brief), Ingram Yuzek
Gainen Carroll & Bertolotti, LLP, New York, NY, for Petitioner‐
Appellant.
John R. Lakian, pro se.
JUDITH R. RICHMAN (Joel Berger, on the brief), Sonnenfeld & Richman
LLP, New York, NY, for Intervenor‐Appellee.
_______________
KATZMANN, Chief Judge:
This appeal requires us to decide whether a spouse’s interest in real
property, which was allocated to her first in a trust agreement (giving her a 50%
interest) and then in a divorce judgment (giving her a 62.5% plus $75,000
interest), takes priority over a judgment creditor’s interest in the same property,
when the judgment creditor has docketed its judgment in the county where the
2
real property is located and the spouse has not. This determination hinges on an
issue of state law for which there is no controlling decision of the New York
Court of Appeals, and on which guidance from the Court of Appeals would be
decisive.
The property in question in this case was previously owned by intervenor‐
appellee Andrea Lakian (“Andrea”) and respondent‐appellee John Lakian
(“John”). Upon divorcing, Andrea and John stipulated that the property would
be sold and that Andrea would receive 62.5% plus $75,000 of the net proceeds;
their stipulation was incorporated into a divorce judgment entered by the New
York Supreme Court, New York County. Soon thereafter, petitioner‐appellant
Pangea Capital Management, LLC (“Pangea”) won an arbitration award against
John, which was confirmed and reduced to a judgment. After docketing its
judgment in the county where the property was located, Pangea moved for a
writ of execution, seeking to execute upon all of the proceeds from the sale. The
district court (Lewis A. Kaplan, Judge), in a thorough opinion, granted in part
and denied in part the motion, holding that Pangea could execute only upon the
share of the proceeds awarded to John in the divorce judgment, i.e., 37.5% less
$75,000.
3
On appeal, Pangea argues that it was entitled to execute upon all of the
proceeds and that the district court’s conclusion to the contrary was error. In
evaluating Pangea’s challenge, we must first determine whether, as Pangea
asserts, Pangea’s interest in the property took priority over the interest granted to
Andrea in the divorce judgment because Andrea failed to docket the divorce
judgment in the county where the property was located. If it did, we must then
determine whether, as Pangea also asserts, the nature of the trust that held title to
the property entailed that John remained the absolute owner of the property
relative to his creditors during the Lakians’ marriage. Because both of these
issues turn on questions of state law for which no controlling decisions of the
New York Court of Appeals exist, we certify, pursuant to 22 N.Y.C.R.R.
§ 500.27(a) and 2d Cir. R. 27.2(a), two questions to the Court of Appeals.
BACKGROUND
I. The Property and the Trust
Andrea and John married in 1977. During their marriage they purchased,
improved, and resold several properties. On December 4, 2002, they purchased a
property on Shelter Island in Suffolk County, New York (the “Property”). The
purchase price was $4,500,000, which Andrea and John funded using the
4
proceeds from the sale of another property that they had owned. They later spent
more than $4,000,000 of their joint assets making improvements to the Property.
When they purchased the Property, title to it was placed in John’s name
alone, but shortly thereafter he transferred the Property to the GEMS II Realty
Trust (the “Trust”). The Declaration of Trust (the “Declaration”) provided that
John was the trustee of the Trust, and the attached Schedule of Beneficiaries
provided that Andrea and John were beneficiaries, each with a 50% interest. The
Declaration further provided that the Trustees, namely John and his successors,
“will hold any and all of the property that may be transferred to or acquired by
them in their capacity as Trustees (hereinafter referred to as ‘the Trust Premises’)
in trust for the purposes hereinafter contained.” App. 226. Those purposes were
expressly limited:
The purposes for which the Trust is formed and the functions to be
carried on by the Trustees are limited to holding the record legal title
of the Trust Premises for the benefit of the Beneficiaries. The Trust
shall not engage in any functions other than the holding of record
legal title to the Trust Premises, and such functions as are
necessarily incidental thereto and is intended to be merely a
nominee trust, so‐called, for Federal and State income tax purposes.
Except as herein provided in the case of the termination of this
Trust, the Trustees shall have no power to deal in or with the Trust
Premises, except as directed in writing by all of the Beneficiaries.
5
App. 227–28. Rather, the beneficiaries of the trust were given “control of the
management, operation and handling of the Trust Premises, and all matters
related thereto.” App. 228. Finally, the Declaration provided that the Trust “may
be terminated at any time by the then Beneficiaries” and “may also be revoked
and terminated at any time by all of the then Trustees.” App. 229. In the event
the Trust was terminated, the Declaration specified that “the Trust Premises shall
automatically vest in the Beneficiaries hereof as tenants in common . . . in
proportion to their respective interest[s].” App. 227.
II. Procedural history
John joined Pangea, a small investment management firm started in 2008,
as a co‐managing member, and he led Pangea’s primary investment vehicle.
Pangea later accused John of defrauding the company and improperly diverting
millions of dollars to himself. In June 2012, Pangea sued John in New York
Supreme Court. That proceeding was discontinued in favor of binding
arbitration.
Around the same time, the Lakians’ marriage was ending. After
discovering that John was having an affair, Andrea filed for divorce in New York
Supreme Court in December 2013. On May 4, 2015, Andrea and John executed a
6
Stipulation of Settlement and Agreement (the “Stipulation”) in order to settle
their pending divorce proceedings. The Stipulation provided that the Property
would be listed for sale; that John, as trustee of the Trust, would effectuate the
transfer of title to the purchaser; and that the net proceeds from the sale “shall be
divided so that the Wife receives 62.5% thereof plus $75,000 . . . and the Husband
receives 37.5% thereof less $75,000 . . . .” App. 293 (emphases in original). On June
9, 2015, the New York Supreme Court issued a Judgment of Divorce (the
“Divorce Judgment”), which incorporated the Stipulation by reference. The
Divorce Judgment was entered on June 11, 2015. Andrea never docketed the
Divorce Judgment in Suffolk County.
On January 5, 2016, the arbitration between John and Pangea resulted in an
Amended Partial Final Arbitration Award in favor of Pangea (the “Award”). On
February 3, 2016, Pangea filed a petition in the district court seeking to confirm
the Award and reduce it to a judgment. At the same time, it moved for an order
of attachment against the Property, which the district court granted. The district
court confirmed the Award in a decision on November 9, 2016, and it entered a
confirmation judgment in Pangea’s favor in the amount of $14,452,193.22 (the
“Confirmation Judgment”) on November 22, 2016. Pangea docketed the
7
Confirmation Judgment with the clerk of Suffolk County on November 28, 2016.
Thus, while the Divorce Judgment was entered before Pangea received the
Confirmation Judgment, Pangea docketed its judgment first (since Andrea never
docketed the Divorce Judgment).
On January 9, 2017, the district court so ordered a stipulation between
Pangea, John, and Andrea that authorized the sale of the Property. That
stipulation stated that it was intended to “maintain the status quo” and “not
impair any party’s rights, interests and priorities.” App. 70. The Property was
sold on February 13, 2017, and the net proceeds of $5,039,615.85 were deposited
with the district court (the “Proceeds”).
Pangea then moved for a writ of execution on all of the Proceeds pursuant
to Federal Rule of Civil Procedure 69 and New York Civil Practice Law and
Rules (“C.P.L.R.”) 5236 and 5239. Andrea and John each cross‐moved, pursuant
to Federal Rule of Civil Procedure 64 and C.P.L.R. 6221, for an order awarding
Andrea 62.5% plus $75,000 of the Proceeds. In an Opinion dated September 13,
2017, the district court granted Andrea’s and John’s cross motions and granted in
part and denied in part Pangea’s motion, ruling that Pangea could execute only
upon the share of the Proceeds awarded to John in the Divorce Judgment (i.e.,
8
32.5% less $75,000 of the Proceeds). In the course of reaching this conclusion, the
district court noted that the question of New York law raised by the motions had
never been presented to the New York Court of Appeals, but that the district
court was unable to certify that question. The Clerk of Court disbursed the
Proceeds in the proportions specified by the district court: Pangea received
$1,822,670.71, and Andrea received $3,237,784.52. This appeal followed.
DISCUSSION
Pangea’s challenge to the district court’s order consists of two steps. First,
Pangea contends that its interest in the Property takes priority over the interest
awarded to Andrea in the Divorce Judgment because Pangea docketed the
Confirmation Judgment, whereas Andrea never docketed the Divorce Judgment.
If that were the case, then Pangea asserts that Andrea would not be entitled to
62.5% plus $75,000 of the Proceeds, but only to whatever interest in the Property
she owned before the Divorce Judgment. Second (and assuming that it prevails
as to the first issue), Pangea contends that, before the Divorce Judgment, Andrea
had no interest in the Property that would take priority over liens against the
Property by John’s creditors, since the nature of the Trust entailed that John
remained the absolute owner of the Trust with regard to his creditors. Each of
9
these issues turns on the interpretation of New York law. “We review the district
court’s interpretation of a state statute de novo.” Corsair Special Situations Fund,
L.P. v. Pesiri, 863 F.3d 176, 179 (2d Cir. 2017).1
I. The relative priority of Andrea’s and Pangea’s respective interests
The first issue raised by Pangea’s challenge—whether Andrea was
required to docket the Divorce Judgment—turns on the interaction of two
statutes: Section 236 of New York’s Domestic Relations Law (“D.R.L.”), which
governs the distribution of marital assets upon dissolution of a marriage, and
C.P.L.R. 5203, which dictates the relative priority of judgment creditors who seek
to execute against a judgment debtor’s real property. Before turning to the
parties’ arguments, we briefly survey that statutory landscape.
1 Although the record seems to reflect that the Trust continued to hold title to the
Property after the Divorce Judgment was entered—since the Trust ultimately conveyed
title to the Property to the buyer of the Property—the parties’ arguments are based on
the premise that the Divorce Judgment effectively allocated to Andrea an interest in the
Property itself, rather than an interest in the Trust. We address those arguments as the
parties make them, but we note that it may also be possible to view the Divorce
Judgment as granting Andrea an increased interest in the Trust while the Trust
continued to hold the real property interest in the Property. If the Court of Appeals
were to accept our certification, it would of course be free to consider that alternate
view and any implications thereof.
10
In 1980, New York revised the D.R.L. by adopting a system of “equitable
distribution,” which is based on a view of marriage as an “economic
partnership.” McDermott v. McDermott, 507 N.Y.S.2d 390, 396 (2d Dep’t 1986).
Under that system, all property acquired by either or both spouses during the
marriage, “regardless of the form in which title is held,” is deemed “marital
property.” N.Y. Dom. Rel. Law § 236(B)(1)(c). Upon dissolution of the marriage,
marital property is equitably distributed by a court, see id. § 236(B)(5)(a)
(providing that, in a divorce action, “[e]xcept where the parties have provided in
an agreement for the disposition of their property . . . , the court . . . shall
determine the respective rights of the parties in their separate or marital
property, and shall provide for the disposition thereof in the final judgment”), or
pursuant to an agreement between the spouses, see id. § 236(B)(3). Allocations of
marital property effected by equitable distributions by courts pursuant to Section
236(B)(5)(a) and by separation agreements by parties pursuant to Section
236(B)(3) are treated similarly. See Kaplan v. Kaplan, 82 N.Y.2d 300, 307 (1993).
Spouses’ individual interests in marital property remain inchoate during
the marriage, up until the final judgment dissolving it: “At no point prior to
judgment does [D.R.L. Section 236] create any contingent or present vested
11
interests, legal or equitable, by virtue of the parties’ marital status . . . .” Musso v.
Ostashko, 468 F.3d 99, 105 (2d Cir. 2006) (per curiam) (quoting Leibowits v.
Leibowits, 462 N.Y.S.2d 469, 478 (2d Dep’t 1983) (O’Connor, J., concurring)); see
also McDermott, 507 N.Y.S.2d at 397 (describing a spouse’s interest in marital
property as “unenforceable and unallocated” before a divorce proceeding began,
“inchoate” during the proceeding, and only “matur[ing] into a true ownership
interest when the equitable distribution judgment terminate[s] the action”).
The C.P.L.R. sets forth the requirements for a judgment creditor to enforce
her judgment. To enforce a judgment, the judgment must first be entered, which
“occurs when the clerk files the judgment after signing it.” Musso, 468 F.3d at 106
(internal quotation marks omitted); see also N.Y. C.P.L.R. 5016(a). In addition,
under C.P.L.R. 5203(a), in order for a judgment creditor to gain rights in the
debtor’s real property, she must docket the judgment “with the county clerk in
the county where the real property is located.” Musso, 468 F.3d at 106. “The basic
rule of CPLR 5203(a) is that the priorities among competing judgment creditors
are determined on the basis of a pure horse race: the first to docket his judgment
in the county where the realty is located has full rights in the property, unless
there is a surplus.” Id. (internal quotation marks omitted). This “bright line rule
12
whereby the party that first notifies all interested third persons of its judgment
lien . . . by docketing . . . takes priority” serves the policy goals of “notify[ing]
potential creditors and other interested parties of the existing lien” and
“permit[ting] the lienholder to rely on its interest in the property.” Id.
Pangea contends that the docketing requirement in C.P.L.R. 5203(a)
applies to an interest in real property awarded in a divorce judgment pursuant to
D.R.L. Section 236. In other words, Pangea argues that the recipient of such an
award is like a judgment creditor and therefore must docket the divorce
judgment if her interest is to take priority over the interests of subsequent
judgment creditors who docket their judgments. Applying that principle to the
facts of this case, Pangea asserts that Andrea’s failure to docket the Divorce
Judgment before Pangea docketed the Confirmation Judgment means that
Pangea’s interest in the Property takes priority. However, Pangea cites no
decisions from New York courts that adopt this view.
Rather, in support of its position, Pangea refers to our decision in Musso, in
which, interpreting New York law, we held that marital assets that had been
awarded to a wife, Tanya Ostashko, in a state court matrimonial proceeding
were “nevertheless part of the husband’s bankruptcy estate” where an
13
involuntary bankruptcy petition was filed “after the state court’s decision but
before the state court judgment [was] entered.” Id. at 102. That was so, we
concluded, “[b]ecause Tanya’s interest in the property did not completely vest
until after the involuntary petition was filed.” Id. at 108. In the course of reaching
that conclusion, we stated that “the enforcement of [an equitable distribution
award] is no different than the enforcement of any other judgment,” and that,
under New York law, “the priority of judgment creditors is determined on the
basis of the order in which judgments are docketed or executed.” Id. at 102. These
statements align with Pangea’s view that divorce judgments are subject to the
docketing requirements of C.P.L.R. 5203(a).
However, there is a notable (and potentially critical) difference between
the facts underlying Musso and the facts in this case: in Musso, the state court
matrimonial judgment had been neither entered nor docketed, whereas here the
Divorce Judgment was entered but not docketed. Our holding in Musso therefore
does not squarely control this case. Moreover, some statements in Musso indicate
that the reason that Tanya’s interest in the marital property did not vest in time
was not that the matrimonial judgment was not docketed, but rather that it was
not entered. We stated that “[a] mere judicial declaration of equitable
14
distribution, without entry, cannot give a spouse an interest in property superior
to that of a creditor . . . holding a valid judgment lien. . . . Rights in equitable
distribution, like judgment liens, vest no earlier than entry of the judgment by which
they are created.” Id. at 107 (emphases added); see also id. (stating that “entry of
the judgment is critical, under New York law, to cementing the spouse’s interest
in the property” in relation to another creditor). Because it is not entirely clear
whether the outcome in Musso followed from the failure to enter the matrimonial
judgment or the failure to docket it, Musso does not dictate the result for us
where, as here, a judgment pursuant to D.R.L. Section 236 is entered but not
docketed.
Pangea also relies on an amendment to C.P.L.R. 5203 enacted in response
to our decision in Musso. The amendment provides a limited exception to
C.P.L.R. 5203(a)’s docketing requirement: if one receives a judicial award of an
interest in real property, and the award is reduced to a judgment that is docketed
within 30 days, then the judgment takes priority over a judicial lien created by a
bankruptcy petition filed on or after the date the award issued. N.Y. C.P.L.R.
5203(c). In effect, the exception seems to establish a grace period for entry and
docketing that is designed to thwart the strategic filing of bankruptcy petitions
15
upon the issuance of an award of ownership of an interest in real property. While
it is undisputed that the exception does not apply in this case, its enactment
appears to presuppose a particular understanding of C.P.L.R. 5203. A
Memorandum in Support of Legislation that was appended to the relevant bill
subscribes to the view that C.P.L.R. 5203(a)’s docketing requirement applies to
judgments pursuant to D.R.L. § 236: it states that “docketing effectuates legal
ownership and the docketing date determines the seniority of competing
property interests,” and so, on the facts of Musso, “[u]nder CPLR 5203(a), [the]
Supreme Court’s award of the marital home could not be enforced until
docketed,” Special App. 40. The scope of the exception in C.P.L.R. 5203(c) is
consistent with that understanding: if only entry and not docketing were needed
for an award to vest in circumstances like those present in Musso, then it would
be odd to require not only the entry but also the docketing of an award within 30
days for the exception to apply. And yet, although these indications of the
legislature’s view of C.P.L.R. 5203 are informative, they do not, on their own,
resolve the question before us.
Andrea, for her part, relies on lower state court decisions that reject
Pangea’s view. For example, in Darling v. Darling, the New York Supreme Court
16
addressed a judgment creditor’s attempt to execute on property after entry of a
divorce judgment awarding that property to a spouse, where the spouse had not
taken steps to execute on the divorce judgment. 869 N.Y.S.2d 307 (Sup. Ct. 2008).2
The Darling court distinguished our decision in Musso, since in Darling—as
here—the divorce judgment had been entered. Id. at 316. Moreover, Darling,
disagreeing with Musso, stated that “there is a material difference between the
usual judgment creditor, seeking to collect a money judgment from any property
owned by the judgment debtor, and the distributee under a divorce judgment,
seeking possession of specific property awarded from the marital estate.” Id. at
317. Accordingly, Darling held that an equitable distribution award renders the
recipient spouse “a transferee as to the marital property distributed, rather than a
judgment creditor, for purposes of [CPLR] Article 52,” and that the spouse’s
interest vests upon entry of the divorce judgment at the latest. Id. at 318; see also
Rodriguez v. Sepe, 908 N.Y.S.2d 854, 859 (Sup. Ct. 2010) (concluding case was “not
2 The property at issue in Darling consisted of co‐op shares, which are personal,
not real, property under New York law. 869 N.Y.S.2d at 312‐13.
17
a battle of judgment creditors” where judgment creditor sought to attach assets
distributed to one spouse pursuant to a divorce judgment).3
While Darling suggests that New York courts might well reject Pangea’s
view, it remains the case that the parties have not cited, and we have not found,
any controlling decisions from the New York Court of Appeals, or any decisions
from the Appellate Division in analogous circumstances that indicate how the
Court of Appeals would likely decide the issue presented by Pangea’s first
challenge. Accordingly, we certify the following question to the Court of
Appeals: If an entered divorce judgment grants a spouse an interest in real property
pursuant to D.R.L. Section 236, and the spouse does not docket the divorce judgment in
the county where the property is located, is the spouse’s interest subject to attachment by
a subsequent judgment creditor that has docketed its judgment and seeks to execute
against the property?
3 As a general matter, New York courts have stressed that the entry of a divorce
judgment is the critical point at which previously inchoate rights to marital property
mature into individual ownership interests. See, e.g., Sinha v. Sinha, 727 N.Y.S.2d 537,
539 (3d Dep’t 2001) (“[M]arital property rights are determined upon the granting of a
divorce . . . .”); McDermott, 507 N.Y.S.2d at 397 (finding that a right to a marital asset
“matured into a true ownership interest when the equitable distribution judgment
terminated the action”); Rodriguez, 908 N.Y.S.2d at 859 (finding that a right to a marital
asset is “inchoate during the divorce, but that right matured upon the filing of the
judgment of divorce”).
18
II. The validity of the Trust as to John’s creditors
Assuming that the first issue is decided in Pangea’s favor, and that
Pangea’s interest therefore takes priority over the interest that Andrea was
awarded in the Divorce Judgment, the next question is whether Andrea retained
some lesser interest in the Property that Pangea cannot reach, specifically the
50% beneficial interest that the documents governing the Trust purported to
grant her. Pangea contends that it should be able to reach the entirety of the
Proceeds on the theory that the Trust is invalid with regard to John’s creditors.
This issue also turns on the interpretation and application of state statutes, this
time New York’s Estates, Powers and Trusts Law (“E.P.T.L.”).
Pangea invokes two principles codified in the E.P.T.L. in support of its
argument. First, “[w]here a creator reserves an unqualified power of revocation,
he remains the absolute owner of the property disposed of so far as the rights of
his creditors or purchasers are concerned.” N.Y. Est. Powers & Trusts Law § 10‐
10.6. Second, “[a] disposition in trust for the use of the creator is void as against
the existing or subsequent creditors of the creator.” N.Y. Est. Powers & Trusts
Law § 7‐3.1(a). As noted above, John was the settlor, the trustee, and one of the
two beneficiaries of the Trust. Accordingly, Pangea argues, under E.P.T.L.
19
Sections 10‐10.6 and 7‐3.1(a), John remained the absolute owner of the Property
and the Trust cannot shield it from his creditors.
In response, Andrea contends that the normal rules regarding revocable
and self‐settled trusts do not apply, as the Trust was expressly designated as a
so‐called “nominee trust.” App. 227. She admits, however, that nominee trusts
are “unique to Massachusetts state law,” and she has not cited any New York
decisions recognizing such trusts. Intervenor‐Appellee’s Br. 25.4 Andrea also
argues that the Trust should be considered a passive trust under E.P.T.L. Section
7‐1.2 because it does not assign any functions to the trustee except to hold title to
the Property. See Matter of Gagliardi, 55 N.Y.2d 109, 113 (1982) (“It is well and
long established that . . . because the instrument allocates no functions to the
trustee, a passive or naked trust is created.”); Ward v. Saranac Lake Fed. Sav. &
Loan Ass’n, 369 N.Y.S.2d 540, 542 (3d Dep’t 1975) (“A direction simply that
property is to be held or used, or that [it] is to be held in trust, for a named
person or persons . . . creates only a passive trust.” (internal quotation marks
omitted)). If the Trust is passive, then the Property should vest directly in the
4 Because Andrea has not argued that Massachusetts law governs the Trust, and
because she makes arguments based on New York’s trust law, we assume that New
York law applies.
20
beneficiaries, leaving Andrea and John each with a 50% interest. See Gagliardi, 55
N.Y.2d at 113 (“[S]o long as identity of the beneficiary is clear, a passive trust
automatically is executed by vesting the entire interest in the res in the
[beneficiary].”). In that event, Andrea’s 50% interest would be her property, not
subject to attachment by John’s creditors.
Pangea argues that the Trust cannot be passive because John, as trustee,
possessed the unfettered right to revoke it. This argument finds some support in
New York decisions. See, e.g., Ward, 369 N.Y.S.2d at 542–43 (concluding that
purported trust accounts “fail[ed] as passive” but that the purported trust
property reverted to the estate of the settlor, in part because the settlor retained
“absolute control” over whether to withdraw the property); see also Campenello v.
Conrow, 485 N.Y.S.2d 469, 471 (Co. Ct. 1985) (rejecting the argument that
instruments effected passive trusts because they “clearly evidence[d] retention of
full power in the settlor‐trustee to dispose of the property and to use and dispose
of the proceeds thereof during his lifetime”).
However, on this issue as well we have found no controlling decision of
the Court of Appeals, nor any decision by any New York court addressing the
effect of a purported nominee trust under New York law. Accordingly, we
21
conditionally certify to the Court of Appeals a second question, which need only
be decided if the first question is decided in Pangea’s favor: If a settlor creates a
trust solely for the purpose of holding title to property for the benefit of himself and
another beneficiary, and the settlor retains the unfettered right to revoke the trust, does
the settlor remain the absolute owner of the trust property relative to his creditors, or is
the trust property conveyed to the beneficiaries?
III. Certification
“Although the parties did not request certification, we are empowered
to seek certification nostra sponte.” Corsair, 863 F.3d at 182–83 (quoting Kuhne v.
Cohen & Slamowitz, LLP, 579 F.3d 189, 198 (2d Cir. 2009)). Pursuant to the New
York Court of Appeals’ rules, “[w]henever it appears . . . that determinative
questions of New York law are involved in a case pending before [a federal
circuit court] for which no controlling precedent of the Court of Appeals exists,
the court may certify the dispositive questions of law to the Court of Appeals.”
22 N.Y.C.R.R. § 500.27(a); see also 2d Cir. R. 27.2(a) (“If state law permits, the
court may certify a question of state law to that state’s highest court.”).
Our decision to certify questions to the Court of Appeals is discretionary.
See Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 41–42 (2d Cir. 2010). In
22
deciding whether to exercise that discretion, we consider whether “the New
York Court of Appeals has not squarely addressed an issue and other decisions
by New York courts are insufficient to predict how the Court of Appeals would
resolve it”; whether “the statute’s plain language does not indicate the answer”;
whether “a decision on the merits requires value judgments and important
public policy choices that the New York Court of Appeals is better situated than
we [are] to make”; and whether “the questions certified will control the outcome
of the case.” Id. at 42 (internal quotation marks omitted). Each of those factors
weighs in favor of certification in this case.
First, as discussed above, the Court of Appeals has not decided the specific
questions of New York law that this appeal raises, “[n]or have issues similar to
those raised here been litigated in New York courts often enough that sufficient
precedents exist for use to make a determination concerning their proper
outcome.” Commodity Futures Trading Comm’n v. Walsh, 618 F.3d 218, 231 (2d Cir.
2010) (internal quotation marks and brackets omitted). Second, because the
questions in this case require reconciling different statutory provisions, the plain
language of those provisions is not conclusive. Third, the resolution of the first
question in this appeal may broadly impact interests in real property awarded in
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equitable distribution judgments, and accordingly “[w]e believe that the New
York Court of Appeals is better situated than we are to decide this issue given its
greater familiarity with New York matrimonial litigation and the likely
importance of the issue to New York domestic relations law.” Id. Fourth, the
answers to the questions will dictate the respective shares of the Proceeds to
which Pangea and Andrea are entitled, thereby resolving this appeal and the
parties’ dispute.
Because those factors weigh in favor of certification, we certify the
questions formulated above and restated below. We are not unsympathetic to the
concern, raised by Andrea, that the further proceedings required by certification
will impose additional burdens on her resources. However, we are confident that
the Court of Appeals, if it chooses to accept our certification, will be in the best
position to decide the questions in this case and will do so expeditiously, as is its
usual practice.
CONCLUSION
For the reasons stated, the Court hereby certifies the following questions to
the New York Court of Appeals:
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(1) If an entered divorce judgment grants a spouse an interest in real
property pursuant to D.R.L. Section 236, and the spouse does not
docket the divorce judgment in the county where the property is
located, is the spouse’s interest subject to attachment by a subsequent
judgment creditor that has docketed its judgment and seeks to execute
against the property?
(2) If the answer to Question (1) is “no,” then: If a settlor creates a trust solely
for the purpose of holding title to property for the benefit of himself
and another beneficiary, and the settlor retains the unfettered right to
revoke the trust, does the settlor remain the absolute owner of the trust
property relative to his creditors, or is the trust property conveyed to
the beneficiaries?
We invite the Court of Appeals to reformulate these questions as it sees fit
or expand them to address any other issues of New York law that would assist
this Court in determining whether Pangea may execute against all or only a
specified portion of the Proceeds.
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It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of
the New York Court of Appeals this opinion as our certificate, together with a
complete set of briefs, appendices, and the record filed in this case by the parties.
This panel retains jurisdiction for purposes of resolving this appeal once the New
York Court of Appeals has responded to our certification.
CERTIFICATE
The foregoing is hereby certified to the New York Court of Appeals
pursuant to 22 N.Y.C.R.R. § 500.27(a) and 2d Cir. R. 27.2(a), as ordered by the
United States Court of Appeals for the Second Circuit.
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