CHRISTINE M. ARGUELLO, United States District Judge.
This matter is before the Court on Chapter 7 Trustee David E. Lewis's ("the Trustee") appeal of the Bankruptcy Court's Order, entered on January 24, 2018, in case No. 09-34404. Dennis W. Scruggs ("Respondent") opposes the appeal. The Court has jurisdiction under 28 U.S.C. § 158(a)(1). For the following reasons, the Order of the Bankruptcy Court is reversed.
The Bankruptcy Court awarded two claims in favor of Respondent, which form the basis of the instant appeal. Accordingly, the Court will consider:
The Debtor in this case is Health Trio Inc. ("Debtor HT Inc.") which developed and licensed software used by health insurance companies to administer claims. "Over the years," however, Dr. Malik Hasan, the founder and majority shareholder of Debtor HT Inc., "engaged in a scheme to manipulate HT Inc.'s assets and defraud creditors." (Rec. at 585.) Between 2000 and 2005, Hasan made cash contributions in the approximate amount of $16.8 million to Debtor HT Inc. None of these contributions were approved by the Board of Directors of Debtor HT Inc., nor did Hasan obtain any collateral to secure repayment of these funds. Nonetheless, at a December 2005 board meeting, the Board approved the issuance of promissory notes and a security agreement, which pledged
Respondent is a certified public accountant who was originally employed as the chief financial officer of Debtor HT Inc. Respondent began his employment in July 2004, and his salary was $122,500 per year. His duties from July 2004 through February 2009 included "managing cash receipts and disbursements, performing financial and tax accounting and reporting, managing Debtor HT Inc.'s contracts and routinely interfacing with attorneys on Debtor HT Inc.'s litigation." (Id. at 586.) Respondent signed the promissory notes and the security agreement as an officer of Debtor HT Inc.
In 2007, Immedient Corporation—one of the three petitioning creditors against Debtor HT Inc.—obtained a judgment against Debtor HT Inc. Subsequently, Hasan demanded to be repaid for the contributions he had made to Debtor HT Inc. Hasan sued Debtor HT Inc. on the security agreement and promissory notes, and Debtor HT Inc. did not defend itself in the lawsuit. Accordingly, Hasan obtained a default judgment in the amount of $21.79 million. Respondent signed both an affidavit in support of Hasan's judgment and an assignment of assets to Hasan, and Debtor HT Inc. surrendered all of its assets to Hasan. "When questioned about signing the insider foreclosure documents, [Respondent] testified he was an accountant, not a lawyer, and as an employee of HT Inc., he did what he was told." (Id. at 587.) Thereafter, Hasan formed a new entity called Health Trio LLC ("HT LLC").
Hasan purchased Debtor HT Inc.'s assets at a foreclosure sale and transferred the assets and Debtor HT Inc.'s business to HT LLC.
(Id.) Thus, Respondent testified that he had two CFO positions from October 2007
Respondent testified that he "became concerned about his potential liability and future due to the involuntary petition litigation." (Id.) As a result, Respondent sought, inter alia, an indemnification agreement from Hasan regarding Respondent's activities as an officer, director, and shareholder of Debtor HT Inc. Respondent further testified that, when Hasan refused Respondent's requests, he resigned from his paid position at HT LLC—but not his unpaid position at Debtor
The gap period between the time the involuntary petition was filed and the entry of the order for relief lasted from February 18, 2009, until May 5, 2012. Respondent testified that, after he resigned his paid position with HT LLC in January 2010, "he remained CFO of HT Inc. during and after the Gap Period until the Trustee was appointed in December 2012." (Id. at 588.) Respondent asserts:
(Id.) Despite Respondent's admission on cross-examination by the Trustee that "the only benefit to the Debtor [HT Inc.] ... during this gap period ... [was] that Dr. Hassan was continuing to receive money on his security interest [which] reduced the amount that was owed to him on the secured claim," (Supp. Rec. at 222), the Bankruptcy Court found that Respondent "provided routine CFO services to HT Inc. in the Gap Period ... for the benefit of HT Inc.....", and awarded Respondent $46,959.
Additionally, the Bankruptcy Court found that Respondent "provided a substantial contribution to the chapter 7 bankruptcy estate in the post-petition period by conferring an actual, direct and demonstrable benefit to the estate in supporting the trustee's litigation claims." (Id.) Specifically, Respondent provided a "six-inch three-ring binder litigation notebook for use in the investigation and prosecution of two adversary proceedings," which ultimately settled for a combined total of $1,225,000. (Id. at 589.) The notebook was a product of Respondent's efforts during the gap period to catalogue, identify, maintain, and preserve documents that could eventually be relevant to subsequent litigation.
On February 2, 2018, the Trustee initiated the instant appeal arguing that the Bankruptcy Court erred in granting Respondent's gap period claim and awarding Respondent funds for his contribution to the Chapter 7 case. Respondent filed a Response (Doc. # 13) on May 11, 2018, and the Trustee filed a Reply (Doc. # 14) on May 23, 2018.
This Court reviews the Bankruptcy Court's legal determinations de novo. See In re Baldwin, 593 F.3d 1155, 1159 (10th Cir. 2010). The Court also reviews de novo mixed questions of law and fact that primarily involve legal issues. See In re Wes Dor Inc., 996 F.2d 237 (10th Cir. 1993). The Bankruptcy Court's factual findings are reviewed for clear error. See In re Johnson, 477 B.R. 156, 168 (10th Cir. BAP 2012). If a "lower court's factual findings are premised on improper legal standards or on proper ones improperly applied, they are not entitled to the protection of the clearly erroneous standard, but are subject to de novo review." Id.
In the instant case, there are no disputed factual issues. Therefore, because the Trustee's appeal is premised on his argument that the Bankruptcy Court improperly applied the law, the Court will review the Bankruptcy Court's decision de novo. In re Chernushin, 584 B.R. 567, 570 (D. Colo. 2018), aff'd, 911 F.3d 1265 (10th Cir. 2018) (citing In re Baldwin, 593 F.3d at 1159).
The Trustee raises a number of issues related to the Bankruptcy Court's allowance of the gap period claim under 11 U.S.C. § 502(f) and the Bankruptcy Court's allowance of the administrative expense claim under 11 U.S.C. § 503(b). The Court will consider each claim in turn.
Section 502(f) provides:
11 U.S.C. § 502 (emphasis added). Therefore, whether a creditor is entitled to a gap claim under § 502(f) depends on whether the claim arose "in the ordinary course of the debtor's business or financial affairs...." Id.
The Trustee raises the following issues related to the Bankruptcy Court's allowance of Respondent's gap period claim:
(Doc. # 12 at 7.)
The Court concludes that the Bankruptcy Court erred in construing Respondent's § 502(f) claim broadly. In doing so, the Bankruptcy Court stretched the interpretation of a gap period claim to encompass a situation in which the services provided were not in the ordinary course of the debtor's business or financial affairs. Because the other issues raised by the Trustee are so intertwined with the issue of "ordinary course", the Court addresses them all as one.
Courts have noted that little authority exists directly addressing the question of the meaning of "ordinary course of business" in § 502(f). E.g., In re Hanson Indus., Inc., 90 B.R. 405, 413 (Bankr. D. Minn. 1988) (finding "no authority directly on point...."); accord In re Lappin Elec. Co, No. 97-26130, 2002 WL 34720012, at *3 (Bankr. E.D. Wis. April 29, 2002); see Braunstein v. McCabe, 571 F.3d 108, 124 (1st Cir. 2009) (noting that there is "little law" regarding the meaning of "ordinary course of business"). The Bankruptcy Court endeavored to derive the meaning of the term "ordinary course of business" by examining cases in which other bankruptcy courts either granted or denied a § 502(f) gap period claim. Accordingly, the Bankruptcy Court deduced that such claims "fall into two categories." (Rec. at 591.) Specifically,
(Id.)
The Bankruptcy Court ultimately concluded that the term "[`ordinary course of business'] under § 502(f) should be
Although the Bankruptcy Court's functional approach is innovative, the Court respectfully rejects the Bankruptcy Court's broad construction standard. First, the cases cited by the Bankruptcy Court in support of its position do not distinguish between § 502(f) claims based on the "categories" identified by the Bankruptcy Court. See, e.g., In re Baab Steel, Inc., 495 B.R. 530, 534 (Bankr. D. Colo. 2013). Second, this Court could not find any Circuit Court of Appeals authority supporting the Bankruptcy Court's interpretation. Third, the Tenth Circuit has held that statutory priorities—which include gap claims—are "to be
Because this Court is not endorsing the Bankruptcy Court's functional definition of "ordinary course of business," the Court looks to other sources for a means of defining the term. Other courts considering the meaning of the term "ordinary course of business" in § 502(f) have looked to definitions of the term which have developed in other sections of the Bankruptcy Code. E.g., Hanson Indus., 90 B.R. at 413-14 (considering the meaning of the term in the context of 11 U.S.C. §§ 363(b)(1), 547(c)(2)(A)); In re Lappin, 2002 WL 34720012, at *3 (considering the term in 11 U.S.C. §§ 363(b-c)(1), 364(a)). Those courts have observed that the term "ordinary course of business" has "developed both a vertical and a horizontal dimension." In re Lappin, 2002 WL 34720012, at *3. Accordingly, courts have applied a test for each dimension that reflects the different points of view of the debtor/trustee and of the creditors. Importantly, the horizontal and vertical tests treat the claims of all creditors equally, allowing all gap claims to be narrowly construed as intended by the Bankruptcy Code. See In re Amarex, 853 F.2d at 1530.
The first test is a horizontal dimension—or industry comparison test, and the second is a vertical dimension—or "creditor expectation" test. If both tests
Under the horizontal test, courts ask "whether, from an industry-wide perspective,
The Bankruptcy Court acknowledged that Respondent's gap claim was abnormal when it stated, "[u]nbelievably and without precedent, the gap period between the filing of the involuntary petition and entry of the order for relief was more than three and one-half years...." (Rec. at 585.) From the perspective of the industry—software development companies—the challenged transaction is certainly abnormal. Facing mounting liabilities, Debtor HT Inc. dissolved and effectively reorganized as HT LLC. (Id. at 587.) Respondent, Debtor HT Inc.'s CFO, stopped receiving payment from Debtor HT Inc. and started receiving the same salary from HT LLC. Nevertheless, Respondent did extra work for Debtor HT Inc. without a corresponding increase in salary. (Supp. Rec. at 116.) This arrangement began before the gap period started and continued after the Chapter 7 petition was filed.
The abnormality reached an apex when Respondent—knowing that his only source of compensation was coming from HT LLC—resigned his position from HT LLC. Respondent's principle reason for his resignation was equally unusual. Respondent threatened to resign from HT LLC unless he received an indemnification agreement insulating him from liability for his actions as an officer of Debtor HT Inc. When his demand was refused, Respondent resigned from HT LLC. Nevertheless, Respondent maintained his position with Debtor HT Inc. even though that was the same position that caused him so much concern for his personal liability that he gave up his only source of income in an effort to protect himself. Although the services that Respondent provided for Debtor HT Inc. throughout the gap period may seem facially usual for a company winding up its affairs, the label "usual" is not justified when Respondent's services are viewed in the above-described context.
Whether considered from the perspective of a software development company, in particular, or from a corporate entity, in general, the "transaction" between Respondent and Debtor HT Inc. is not "of the sort commonly undertaken by companies in that industry." Braunstein, 571 F.3d at 124 (citing In re Roth Am., 975 F.2d at 953).
Under the vertical test, courts analyze the challenged transaction from a hypothetical creditor's point of view and ask whether it "subjects a creditor to economic risks of a nature different from those he accepted when he decided to extend credit." Braunstein, 571 F.3d at 125 (citing Straightline, 525 F.3d at 879 (quoting Burlington N. R.R. Co., 853 F.2d at 705) (internal quotation mark omitted)). In other words, "is the claim so unusual that an ordinary trade creditor would not expect the debtor to be engaging in such a transaction?" In re Lappin, 2002 WL 34720012, at *3. "The primary focus ... is on the debtor's pre-petition business practices and conduct," though a court must be aware of changing circumstances. Braunstein, 571 F.3d at 125 (quoting In re Roth Am., 975 F.2d at 953). "The question the
In the instant case, the transactions between Respondent and Debtor HT Inc. during the gap period were not ordinary within the context of the debtor/creditor relationship. Respondent is not the "ordinary" third party creditor or low-level employee who continued to work because he was unaware that HT Inc. was in financial difficulty. As the CFO for HT Inc., not only was Respondent an insider, but also, he was an insider who was complicit in the transfer of all of HT Inc. assets to Hasan. He was well aware that, at the time the involuntary petition was filed, HT Inc. was for the most part a defunct shell. Respondent, knew that HT Inc. was non-operational because all of its assets had been transferred to Hasan, thus, any expectation he had of receiving compensation for these services during the gap period was not a reasonable expectation. Additionally, the services Respondent provided to Debtor HT Inc. were qualitatively different from the services he had provided when Debtor HT Inc. was engaged in ordinary business affairs. For instance, although Respondent administered Debtor HT Inc.'s non-assignable contracts before and after the petition, after Hasan foreclosed on his security agreements and promissory notes—which was facilitated in part by Respondent—the money Respondent collected on behalf of Debtor HT Inc. never was received directly by Debtor HT Inc. (Supp. Rec. at 116-17.) In fact, the money went directly to Hasan's personal bank account because Debtor HT Inc. ceased to operate a bank account. (Id.)
During cross examination, counsel for the Trustee asked Respondent the following with respect to the non-assignable Debtor HT Inc. contracts that Respondent administered:
(Supp. Rec. at 222.) Accordingly, Respondent was working primarily for the personal benefit of Hasan rather than Debtor HT Inc. or its shareholders during the gap period, which stands in stark contrast to the services Respondent performed during Debtor HT Inc.'s ordinary course of business.
Additionally, there were significant changes in Respondent's relationship with Debtor HT Inc. during the gap period. The gap period between the time the involuntary petition was filed and the entry of the order for relief lasted from February 18, 2009, until May 5, 2012. Respondent seeks compensation for his services to Debtor HT Inc. for the entire gap period despite the fact that he continued to receive his full compensation from HT LLC from February 18, 2009, until January 2010, when he resigned his position at HT LLC. There is no evidence that Respondent entered into an agreement with Debtor HT Inc. to be compensated for the services he provided during the gap period.
Respondent's status as a non-compensated service provider contrasts significantly with his relationship with Debtor HT Inc. during HT Inc's ordinary course of business. Specifically, Respondent's relationship with Debtor HT Inc. during the gap period was abnormal relative to their pre-petition relationship because Respondent (1) was not a traditionally compensated employee of Debtor HT Inc. and (2) was not being compensated by HT LLC for the services he performed related to Debtor HT Inc. as of 2010. In fact, the only way in which Respondent's relationship with Debtor HT Inc. was ordinary relative to their pre-petition relationship was that Respondent performed services for Debtor HT Inc. without a justifiable expectation of compensation from Debtor HT Inc. beginning in 2007 when Debtor HT Inc. ceased its ordinary business affairs, and he continued to do so throughout the gap period.
In sum, the Court concludes that the services Respondent performed were not "ordinary" according to the horizontal and vertical tests. Therefore, those services were not performed "in the ordinary course of business" for purposes of § 502(f). Braunstein, 571 F.3d at 125. Accordingly, Respondent's gap period claim must be denied.
Section 503(b) provides, in pertinent part:
11 U.S.C. § 503 (emphasis added).
Despite the fact that the language of § 503(b) expressly states that it applies
The Trustee raises the following issues related to the Bankruptcy Court's allowance of an administrative substantial contribution claim in a Chapter 7 case:
(Doc. # 12 at 3.)
When interpreting the Bankruptcy Code, courts begin their inquiry with the language of the statute itself—if the statute's language is plain and unambiguous, the court's function is to enforce it as written. In re Cowen, 849 F.3d 943, 949 (10th Cir. 2017); accord In re Escalera Res. Co., 563 B.R. 336, 346 (Bankr. D. Colo. 2017) (explaining that courts give undefined terms their ordinary meaning). If, after engaging in this textual analysis, "the terms of the statute are clear and unambiguous, they are controlling absent rare and exceptional circumstances." S. Ute Indian Tribe v. Sebelius, 657 F.3d 1071, 1078 (10th Cir. 2011). Specifically, courts should not apply the plain language of the statute in a way that leads to an absurd result. See, e.g., Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). On the other hand, courts should not enforce a statute as written if "the plain language would `produce a result demonstrably at odds with the intention of its drafters[.]'" United States v. Dahda, 853 F.3d 1101, 1113 (10th Cir. 2017) (ellipses omitted) (quoting Starzynski v. Sequoia Forest Indus., 72 F.3d 816, 820 (10th Cir. 1995)). However, courts must use caution when deducing congressional intent.
Courts should not decide "what the legislature meant ... [but] only what the statute means." Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). More recently the Supreme Court explained: "in interpreting a statute a court should always turn first to one, cardinal canon, before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). In short, "[w]hen the words of a statute are unambiguous, then, this first canon is also the last: `judicial inquiry is complete.'" Id. (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981)).
Turning to the statutory text at issue, § 503(b) provides that compensable administrative
With respect to expenses incurred in making a substantial contribution, Section 503(b)(3)(D) specifically limits recovery to those incurred by "a creditor, ... in making a substantial contribution in a case under chapter 9 or 11 of this title". Chapters 7, 12, and 13 are all excluded from this provision.
Based on the plain language of the statute and the absence of any ambiguity, this Court agrees with the majority view that:
In re Hackney, 351 B.R. 179, 201 (Bankr. N.D. Ala. 2006) (emphasis added) (citations omitted).
Moreover, when statutes provide specificity, the specific should govern the general. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645, 132 S.Ct. 2065, 182 L.Ed.2d 967 (2012). This is particularly true where, as here, Congress has enacted a comprehensive statutory scheme. Id. In the context of § 503(b)(3)(D), "the general authorization provided by the expansive term `including' is limited by the specific authorization of the phrase `in a case under chapter 9 or 11 of this title.'" In re Enloe, No. 14-36358, 2016 WL 4595921, at *3 (Bankr. S.D. Tex. Sept. 1, 2016). The Court "will not render the specific authorization superfluous by allowing the general to control." Id.
The minority rule allowing substantial contribution claims in Chapter 7 cases, by contrast, "seems driven more by `practical considerations,' and `policy considerations,' than a faithful adherence to the text." Cowen, 849 F.3d at 948-49 (internal citations omitted) (quoting Thompson v. Gen. Motors Acceptance Corp., 566 F.3d 699, 703 (7th Cir. 2009); Weber v. SEFCU (In re Weber); 719 F.3d 72, 81 (2d Cir. 2013)). Therefore, because absurd results do not follow from application of § 503(b)(3)(D) as it is written and because that application is not clearly at odds with the intention of
Based on the plain language of the statute, this Court concludes that the Bankruptcy Court erred in allowing Respondent's administrative claim based on § 503(b)(3)(D) in this Chapter 7 case.
For the foregoing reasons, the Bankruptcy Court's allowance of Respondent's gap period claim under 11 U.S.C. § 502(f) and Respondent's administrative claim under 11 U.S.C. § 503(b) is REVERSED. The matter is REMANDED to the Bankruptcy Court for proceedings consistent with this order.
