KEVIN GROSS, U.S.B.J..
Alan Halperin, in his capacity as Trustee (the "Trustee") of the GFES Liquidation Trust (the "Trust") brought a motion for partial summary judgment (the "Trustee's Motion") against Michel B. Moreno ("Moreno"), MOR MGH Holdings, LLC ("MOR MGH"), Aerodynamic, LLC ("Aerodynamic"), Casafin II, LLC ("Casafin"), Frac Rentals, LLC ("Frac Rentals"), and Turbine Generation Services, LLC ("TGS") (collectively "Defendants"). From the thirty-five count amended complaint (the "Complaint")
In response to the Trustee's Motion, Defendants filed a cross-motion seeking partial summary judgment ("Defendants' Motion") on the preference claims (Counts 19, 21, 23, and 24), and moved to deny the Trustee's Motion on all remaining counts.
Originally formed in 1969 under the name Hub City Industries, LLC, Green Field Energy Services, Inc. ("GFES") served for many years as a traditional oil and gas well-related service company before entering into the fracking business in December 2010.
Upon taking control of GFES in October 2011, Moreno assumed the positions of Chief Executive Officer and Chairman of GFES's board of directors (the "GFES Board"). Stoll Decl. Ex. 2, at p. 78, Ex. 3, at p. 64. Moreno also established the remaining executive structure of GFES as follows: Enrique Fontova ("Fontova") became the President of GFES and a member of the GFES Board; Earl Blackwell ("Blackwell") maintained his position as Chief Financial Officer; and Charles Kilgore ("Kilgore"), Mark Knight ("Knight") and Charles T. Goodson ("Goodson") were all appointed to the GFES Board. Stoll Decl. Ex. 2, at p. 78; Ex. 3, at p. 64-65; Ex. 11; Deposition of Earl J. Blackwell, dated March 16, 2017 ("Blackwell Depo"), 15:24-16:12.
After taking control of GFES, Moreno continued the company's transition from well-related services to fracking. Stoll Decl. Ex. 2, at p. 32; Moreno Depo. 12:11-15. In order to successfully transition into the fracking industry, GFES entered into an equipment purchase agreement with Marine Turbine Technologies, LLC ("MTT")
To finance GFES's entry into the highly competitive fracking market, the company borrowed heavily from several different sources, beginning with a $53 million bridge loan (the "Bridge Loan") from Jeffries & Company. Stoll Decl. Ex. 24, at § 6.2. GFES intended the Bridge Loan to finance working capital needs, fund the manufacture of the first operational fleet of turbine powered fracking pumps, bridge GFES to an eventual note issuance and to refinance its obligations under a then existing credit agreement with JP Morgan. Id.
To further finance its entry into the market, GFES entered into a "Contract for High Pressure Fracturing Services" (the "Shell Contract") with SWEPI, LP, successor to Shell Western Exploration and Production, Inc. (collectively with its affiliates and subsidiaries, "Shell").
On November 15, 2011, GFES engaged in a bond issuance (the "Bond Issuance") and raised an additional $250 million through high interest secured notes from public markets. Stoll Decl. Ex. 1, at ¶ 54; Moreno Depo. 46:5-22. The Bond Issuance was memorialized on November 15, 2011, by an indenture (the "Indenture")
GFES and Shell agreed to revise the structure of the Shell Contract, replacing the interest free Prepayment Funding with a $30 million revolving senior credit facility (the "Shell Senior Credit Facility"). Stoll Decl. Ex. 25, at MORE_00571013. In May 2012, GFES fully drew the $30 million from the Shell Senior Credit Facility, but this proved still insufficient to satisfy their cash requirements. Id. Shell therefore agreed to amend the Shell Senior Credit Facility and added an additional $70 million in funding (the "Shell Amended Senior Credit Facility"). Id.
In order to obtain additional borrowing under the Shell Amended Senior Credit Facility, Moreno approached the bondholders with a consent solicitation (the "Consent Solicitation") that proposed to modify Section 4.08 of the Indenture to permit a "one-time incurrence of up to $95.0 million in senior term loans secured by a first priority security interest in all of the company's motor vehicles and equipment under a credit agreement with one of [GFES's] key customers, [Shell]...." See Stoll. Decl. Ex. 32, at p. 1-2. As consideration, on October 24, 2012, MOR MGH and MMR (the GFES shareholders) agreed to provide additional equity investments into GFES under a share purchase agreement (the "2012 SPA"). Stoll Decl. Ex. 32, at pp 9-10; Ex. 33, at p. 1. Section 2.01(a) of the 2013 SPA established that MOR MGH and MMR would purchase $10 million of GFES preferred stock at execution, and up to an additional $15 million on a quarterly basis. Stoll Decl. Ex. 1; at ¶ 59; Ex. 32, at p. 10; Ex. 35, at § 2.01(a).
Following the approval of the Consent Solicitation, Moreno relayed to the bondholders the continuing difficulties of GFES and the fracking industry, but assured them that success was on the horizon based upon a new business opportunity provided to GFES. The new opportunity was PowerGen.
On March 7, 2013, on GE's insistence of complete isolation between GE and GFES, Moreno formed TGS as a potential vehicle for any PowerGen business with GE.
The specific structure of the TGS deal is important. To ensure GFES's upside on the potential PowerGen venture, Moreno caused GFES, TPT and TGS to enter into an "Agreement for the Manufacture and Sale of the Turbine Powered Generators" (the "Tri-Party Agreement"). Stoll Decl. Ex. 109.
Contemporaneous with the GE negotiations and the 2012 SPA issues, Moreno and his wife entered into a $25 million personal loan with Goldman Sachs Bank USA ("Goldman Sachs"). Moreno Depo 172:23-173:7; Stoll Decl. Ex. 72. The purported purpose of the personal loan was to fund equity investments into both GFES and TGS. Id. Goldman Sachs advanced Moreno the $25 million, but required that Moreno purchase an additional $10 million of GFES preferred stock, pledge that stock to Goldman Sachs and certify that the preferred stock pledge occurred. Stoll Decl. Exs. 74, 77.
On May 2, 2013, pursuant to their requirements under the 2012 SPA, Blackwell sent a funding request to MOR MGH and MMR with respect to their collective purchase obligation of $4,464,626 for the first quarter of 2013.
On June 28, 2013, with GFES once again needing additional equity investments, Moreno (acting in his capacity as CEO of GFES and Managing Member of MOR MGH), executed a new share purchase agreement (the "2013 SPA") (together with the 2012 SPA, the "SPAs"). Stoll Decl. Ex. 36, at ¶¶ 60, 154; Ex. 78. Section 2.01 of the 2013 SPA required the initial purchase of $10 million for GFES preferred stock upon execution of the agreement. Stoll Decl. Ex. 78, at § 2.01. As with the 2012 SPA, the bondholders demanded the 2013 SPA in an effort to ensure GFES's liquidity. Moreno Depo. 110:5-15.
Contemporaneous with the execution of the 2013 SPA, Moreno signed a Certificate of Receipt of Green Field Energy Services, Inc. (the "Receipt") stating that the initial $10 million purchase had been made. Stoll Decl. Exs. 78-79. Despite signing both the 2013 SPA agreement and the Receipt, however, MOR MGH did not buy the required $10 million of GFES preferred stock, and instead Moreno put the $10 million directly into MOR DOH. Stoll Decl. Exs. 80-81. Facing financial difficulties, in June 2013, GFES failed to make its $2 million monthly amortization payment to Shell under the Shell contract. Stoll Decl. Ex. 31, at p. 8; Ex. 84. In July and August, GFES again failed to make its monthly amortization payment to Shell. Stoll Decl. Ex. 31, at p. 8. By failing to pay Shell, GFES had as of August 2013 defaulted on the SPAs, defaulted on the Shell Contract and failed to pledge $10 million in preferred stock to Goldman Sachs as required by their agreement.
The culmination of GFES's failure to satisfy several of their financial requirements forced Moreno to notify the Indenture Trustee of the defaults and publicly acknowledge the same in the Q2 2013
During the pendency of the bankruptcy case, the Trustee discovered certain transfers GFES made to four separate entities that he believed to be preferential under 11 U.S.C. § 547(b). Adv. D.I. 370, 371. Specifically named the Trustee identified transfers made to TGS, Aerodynamic, Casafin and Frac Rentals.
The TGS transfer arose from the Tri-Party Agreement. Declaration Jeffrey R. Fine, dated June 30, 2017 ("Fine Decl.") Ex. 24. Under the Tri-Party Agreement, TPT agreed to serve as "Contractor," TGS was to act as the "Company" to whom services and products were given and GFES acted as the "Contract Manager." Id. As "Contract Manager," GFES was responsible for managing TPT's production processes, providing back-office accounting services to TPT and TGS and serving as Trustee for TPT on all payments made by TGS. Id. at §§ 2.14, 3.1-3.3. Specifically, TGS would transfer deposits to GFES, which would then remit to TPT for the manufacture of the PowerGen units (the "TGS Deposit Monies") upon receipt of invoices from TPT. Stoll Decl. Ex. 109, Appendix B. Until receipt of an invoice from TPT, GFES was required under the contract to hold the TGS Deposit Monies in a dedicated and separate account. Id. The Tri-Party Agreement explicitly stated that GFES was not to commingle the TGS Deposit Money with GFES's normal operating account.
On September 10, 2013, TGS transferred to GFES $2,210,883.76. On September 11, 2013, GFES issued a transfer back to TGS for the exact same amount (the "TGS Deposit"), with the deposit clearing GFES's bank account on the same day. Fine Decl. Exs. 25, 27. The transfer came directly from GFES's general operating account, despite being guided by the Tri-Party Agreement to refrain from such action. Id.
Aerodynamic was a Learjet travel entity formed by Moreno on September 23, 2005. Moreno Decl. ¶ 7. Aerodynamic's core purpose was to maintain an aircraft (specifically for Aerodynamic, a Learjet) and make it available for use to Moreno, his companies and other entities. Id. The acquisition
On June 1, 2011, Aerodynamic entered into a Non-Exclusive Aircraft Lease Agreement (the "Aerodynamic Lease") with GFES to pay a flat month rental payment of $55,000 to Aerodynamic for the right to use the Learjet on an unlimited, but non-exclusive, basis. Fine Decl. Exs. 6-7; Blackwell Depo. 177:18-178:14. Despite paying Aerodynamic at irregular dates following the receipt of an invoice, GFES satisfied a majority of the invoices from Aerodynamic from 2011 to 2013. Stoll Decl. Ex. 115; Blackwell Depo. 130:21-136:19. Between May 21, 2013, and October 2, 2013, GFES issued checks totaling $275,000 to Aerodynamic to satisfy invoices from March 2013 to July 2013 (collectively, the "Aerodynamic Transfers"). Stoll Decl. Ex. 115.
Following the filing of the Petition, Aerodynamic sold the Learjet and ceased further operations. Fine Decl. Ex. 18; Moreno Depo. 190:10-20.
Substantially similar to Aerodynamic, Casafin was established on July 25, 2006, by Moreno, with a core purpose of maintaining an aircraft (specifically for Casafin, a Bombardier) and making it available for use by Moreno, his companies and other entities. Moreno Decl. ¶ 11. The use of the Bombardier through Casafin was expected to provide a net benefit to GFES through accessibility and speed of air travel. Blackwell Depo. 156:12-157:22, 159:2-24.
Casafin entered into a Non-Exclusive Aircraft Lease Agreement with GFES (the "Casafin Lease"). The Casafin Lease provided for a $4,500 monthly rental charge, minus the amount GFES paid for fuel during the month. Fine Decl. Ex. 13. Prior to the filing of the Petition, Casafin issued no less than 159 invoices to GFES for pre-petition services. Stoll Decl. Exs. 15-16. From May 14, 2013, to August 19, 2013, GFES issued checks satisfying a certain portion of those invoices in the amount of $618,397.95 (collectively, the "Casafin Transfers"). Stoll Decl. Ex. 117. Following the filing of the Petition, Casafin sold the Bombardier and ceased further operations. Fine Decl. Ex. 18; Moreno Depo. 194:14-18.
Frac Rentals was established on July 3, 2012, for GFES to use as a vehicle to provide additional peripheral equipment needed for fracking job sites. Fine Decl. Ex. 7; Blackwell Depo. 142:13-20. Frac Rentals was established and funded by its owners. Initially 80% was owned by MOR DOH, and 20% by Michael J. Smith, with Moreno acting as Manager for the entity.
Between May 16, 2013, and October 22, 2013, GFES paid to Frac Rentals (the "Frac Rentals Transfers") a total of $593,966.18 for satisfaction of services rendered.
Following the filing of the Petition, Moreno filed two proofs of claim against GFES and HCI for "contingent claim[s] for indemnification and/or reimbursement, subject to all defenses, with respect to that certain [Shell Contract], dated as of October 22, 2012, between Michel Moreno and his spouse Tiffany Moreno and [Shell]". Stoll Decl. Exs. 128, 129.
The first proof of claim for reimbursement and indemnification is in connection with a written guarantee entered into by Moreno and his wife Tiffany with Shell on October 22, 2102 (the "Shell Guarantee"). Stoll Decl. Ex. 198. Pursuant to the Shell Guarantee, Moreno and his wife guaranteed GFES's obligation to Shell in connection with Shell's $94 million loan, Moreno assigned to Shell all of his rights against GFES's estate and Moreno waived his rights to obtain reimbursement, contribution and indemnification, or to seek to exercise any right or remedy against GFES. Id. at pp. 2-3. Relatedly, under the Liquidation Plan, Shell agreed to receive $5 million in cash on the effective date (the "Shell Secured Claim") in exchange for full satisfaction, settlement and release of its "secured" claims.
Moreno's second claim relates to administrative fees he suffered during the case. In order to respond to and properly defend against the Committee's allegations, Moreno hired the law firm of Cole, Schotz, Meisel, Forman & Leonard, P.A. ("Cole Schotz"), along with Mesirow Financial Consulting, LLC ("Mesirow") as financial advisors. Stoll Decl. Ex. 130-131. Moreno felt the hiring of Cole Schotz and Mesirow was essential based upon his belief that the allegations against him were being brought in his capacity as an officer and director of GFES. Stoll Decl. Ex. 130.
Following the filing of the Second Amended Complaint on May 19, 2016, the Trustee and Defendants filed cross-motions for summary judgment. The Court's decision follows.
The Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157 and 1334. Venue in this District of Delaware is proper pursuant to 28 U.S.C. §§ 1408 and 1409. This is a core proceeding under 28 U.S.C. § 157(b) arising under the Bankruptcy Code.
Rule 56 of the Federal Rules of Civil Procedure, made applicable by Federal Rule of Bankruptcy Procedure 7056, provides that "[a] party may move for summary judgment, identifying each claim or
From 2011 to 2013, the Trustee argues that Moreno, in both his personal capacity and capacity as a director, manager or otherwise, continually acted in his best interest to the detriment of GFES, its affiliated entities and its creditors. Through these self-interested actions, Moreno allegedly caused significant harm to GFES by breaching contracts, making preferential transfers and using company funds and opportunities for his own personal gain. Defendants sternly object to the all allegations lodged against Moreno and the other entities, and in turn argue that the alleged preferential transfers are unavoidable. It should be noted that Defendants only filed a cross-motion for summary judgment ("Defendants' Motion"). With regard to the preferential transfer allegations (Counts 19, 21, 23, and 24), with the remaining counts Defendants argue that the Trustee has not met his burden and that those issues should proceed to trial. For this reason, the Court finds it suitable to first address the cross-motions for preferential transfers before turning to the remainder of the Trustee's Motion.
Section 547(b) of the Code sets forth the elements a party must prove to bring a successful preference claim. "[A]ny transfer of an interest of the debtor in property" is subject to avoidance if it was made:
The mechanism of Section 547(b) "prevents the debtor from favoring one creditor over others by transferring property shortly before filing for bankruptcy." Begier v. I.R.S., 496 U.S. 53, 58, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990). If the debtor transfers property that would not have been available for distribution to his creditors in a bankruptcy proceeding, the policy behind the avoidance power is not implicated. Id. Where there is no genuine issue of material fact as to these elements, a preference claim is ripe for summary judgment. See, e.g., Argus Mgmt. Grp. v. J-Von N.A. (In re CVEO Corp.), 327 B.R. 724 (Bankr. D. Del. 2005). If all elements are met, there are still certain affirmative
One such defense is the ordinary course defense which demonstrates the transfer, despite meeting all the elements of Section 547(b), is still unavoidable. See 11 U.S.C. § 547(c)(2). Under Section 547(c)(2), the ordinary course defense permits a creditor to retain an otherwise preferential payment if: (1) such transfers were made for a debt incurred in the ordinary course of business of the parties; and either (2) the transfers were made in the ordinary course of business of the parties; or (3) the transfers were made in accordance with ordinary business terms. 11 U.S.C. § 547(c)(2). "In order to successfully demonstrate that the ordinary course of business exception applies, [defendants] must prove by a preponderance of the evidence that the transaction ... meets two of the three subparts of [Section] 547(c)(2)." Miller v. Westfield Steel, Inc. (In re Elrod Holdings Corp.), 426 B.R. 106, 110 (Bankr. D. Del. 2010).
Another defense to Section 547(b) is the subsequent new value defense. The purpose of subsequent new value is "to encourage creditors to work with companies on the verge of insolvency. In addition, it is designed to ameliorate the unfairness of allowing the trustee to avoid all transfers made by a debtor to a creditor during the preference period without giving any corresponding credit for advances of new value that benefitted the debtor." Friedman's Inc. v. Roth Staffing Cos., L.P. (In re Friedman's Inc.), No. 09-10161 (CSS), 2011 WL 5975283, at *1 (Bankr. D. Del. Nov. 30, 2011) (citing Thomas A. Jackson, THE LOGIC AND LIMITS OF BANKRUPTCY LAW 122-150 (1st ed. 1986)). To successfully invoke a subsequent new value defense in the Third Circuit, "the creditor must establish two elements: (1) after receiving the preferential transfer, the creditor must have advanced new value to the debtor on an unsecured basis; and (2) the debtor must not have fully compensated the creditor for the new value as of the date that it filed its bankruptcy petition." See Burtch v. Revchem Composites, Inc. (In re Sierra Concrete Design, Inc.), 463 B.R. 302, 306 (Bankr. D. Del. 2012) (internal citations omitted).
The Trustee alleges that when GFES executed the TGS Deposit on September 11, 2013, it constituted a preferential transfer under Section 547(b) of the Code. Defendants counter that the Trustee cannot prove that the $2,210,883.76 GFES received initially from TGS was ever property of the debtor because the money was, according to Texas law, held in trust for the benefit of TGS.
"A bankruptcy estate includes all property of the debtor, but only to the extent of the debtor's equitable interest in such property." In re Columbia Gas Systems Inc., 997 F.2d 1039, 1054 (3rd Cir. 1993) (citing 11 U.S.C. § 547(d)). If a debtor possesses only legal title to certain monies, those funds would not be deemed an asset of the bankruptcy estate. Columbia Gas, 997 F.2d at 1054. One such situation
Under Texas law, a party can demonstrate the existence of an express trust by: (1) identifying the beneficiary; (2) specifically describing the property subject to the trust; and (3) clearly defining the duties of the trustee such that a court of equity will be able to enforce them. Gurley v. Lindsley, 459 F.2d 268, 276 (5th Cir. 1972). In determining whether the parties formed a trust, intent is a key indicator, which is consistent with Third Circuit precedent. See In re Penn Central Transp. Co., 486 F.2d 519, 524 (3d Cir. 1973) (stating that a trust relationship exists when the parties manifest an intention to create same).
Based upon the language of the Tri-Party Agreement and the parties' actions surrounding the TGS Deposit, there is sufficient evidence to show the parties intended to form a trust. Section 3.2 of the Tri-Party Agreement establishes the elements necessary under Texas law to demonstrate the existence of a trust. The Tri-Party Agreement defines TPT as an identified beneficiary (defined as the "Contractor" in the agreement), states that all payments received by TGS (defined as the "Company" in the agreement) are to be held by GFES (defined as the "Contract Manager" in the agreement) in trust for the benefit of TPT and specifies the duties GFES holds, as trustee, under the Tri-Party Agreement. Stoll Decl. Ex. 109, §§ 2.1, 3.1-3.3 (emphasis added). Under the standard provided by the Gurley court, the Tri-Party Agreement meets all elements to establish the existence of a trust. See Gurley, 459 F.2d at 276.
The Trustee argues that while the Tri-Party Agreement may delineate a trust relationship between the parties, GFES's actions surrounding the TGS Deposit demonstrate otherwise. The Trustee first explains that merely including the language "in trust" in an agreement does not rise to the level of creating an express trust. See Electrolux Fin. Corp. v. Grant (In re Grant), 325 B.R. 728, 734 (Bankr. W.D. Ky. 2005).
Absent, however, from the Trustee's argument are any cases referencing or interpreting Texas law. This absence is key because Texas law interprets trust instruments the same as contracts, and under a more conservative approach, considers the four corners of the document to be determinative of intent absent ambiguous language. See McCarty v. Montgomery, 290 S.W.3d 525, 532 (Tex. App. Eastland 2009) (finding that courts may consider surrounding circumstances to determine the appropriate meaning of language chosen by the parties, but not to determine a party's subjective intent); Lenape Resources Corp. v. Tennessee Gas
Next, the Trustee argues that GFES's inability to segregate the TGS Deposits indicates that the parties did not intend a trust relationship. Per the Tri-Party Agreement, GFES was required to place the payments received from TGS into a separate and specific bank account. However, for the TGS Transfer in question, GFES deposited the monies into its general bank account. Defendants argue that despite the monies being transferred into the wrong account, the funds are readily traceable and do not constitute property of the estate.
"To establish that there exists a trust, a [party] must `identify and trace the trust funds if they are commingled.'" In re Magna Entm't Corp., 438 B.R. 380, 395 (Bankr. D. Del. 2010) (quoting Goldberg v. N.J. Lawyers' Fund for Client Prot., 932 F.2d 273, 280 (3d Cir. 1991)). When attempting to establish rights to commingled funds, "a claimant must make two showings: (1) demonstrate that the trust relationship and its legal source exists, and (2) identify and trace the trust funds if they are commingled." Goldberg, 932 F.2d at 273; Columbia Gas, 997 F.2d at 1063 ("[B]eneficiaries of trust funds bear the burden of identifying and tracing their trust property"). The first showing of a trust relationship is a question of state law, the second showing is exclusively a question of federal law. Goldberg, 932 F.2d at 273.
While the Third Circuit has not formally adopted a procedure to trace commingled funds, the lowest intermediate balance test ("LIBT") has routinely been applied by the Court and other federal courts around the country. In re Catholic Diocese of Wilmington, Inc., 432 B.R. 135, 151 (Bankr. D. Del. 2010) (citing In re Connecticut General Life Ins. Co. v. Universal Ins. Co., 838 F.2d 612, 619-620 (1st Cir. 1988)); Columbia Gas, 997 F.2d at 1063-64; In re MJK Clearing, Inc., 371 F.3d 397, 401 (8th Cir. 2004); In re Falcon Oil Co., 206 B.R. 715, 720 (Bankr.M.D.Pa. 1996); and In re Amp'd Mobile, Inc., 377 B.R. 478, 489-490 (Bankr. D. Del. 2007)). The LIBT, as a legal construct, "allows trust beneficiaries to assume that trust funds are withdrawn last from a commingled account." Columbia Gas, 997 F.2d at 1064. As such, if the amount of the commingled account remains at all times equal to or above the amount of the trust funds, the funds are readily traceable. In re Dameron, 155 F.3d 718, 724 (4th Cir. 1998). If, however, the amount of the commingled account falls below the amount of the trust funds, the funds fail to be traceable and become part of the estate.
Despite the Tri-Party Agreement requiring GFES to deposit any monies into the Chase Contract Account, GFES instead deposited the monies from TGS into its general banking account held by Regions Bank (the "Regions Bank Account"). Fine Decl. Ex. 29. Defendants concede that the funds were commingled when deposited into the Regions Bank Account. The issue remaining is whether or not the Regions Bank Account passes the LIBT for the period in question (September 10-11, 2013). For this showing, Defendants' have not met their burden.
Defendants suggest that the process of calculating the LIBT for the Regions Bank Account during the TGS Transfer is a simple calculation. TGS paid GFES the $2,210,883.76 on September 10, 2013, and GFES returned the TGS Transfer on September 11, 2013. Other than a single deposit of $8,712.55, the Regions Bank Account received no other intervening deposits, allegedly allowing the funds to be easily traced. Def. Br. Pg. 30-31, ¶ 77. Lying in a footnote to Defendants' argument, however, is a qualifier stating that "[w]hile the records show many other withdrawals during [September 10-11], those withdrawals are irrelevant if the balance never fell below $2,210,883.76, which it never did according to GFES's account reconciliation." Def. Br. Pg. 31. n. 84. The Court disagrees.
According to the bank reconciliation statement provided there were $313,992.78 worth of withdrawals on September 10, 2013, and $232,561.72 worth of withdrawals on September 11, 2013. The Court does not know, and what remains a factual issue to be determined, is the balance of the Regions Bank Account at the close of business on September 9, 2013. Under the LIBT, "[s]hould the amount on deposit be reduced below the amount of the trust fund but not depleted, the claimant is entitled to the lowest intermediate balance in the account...." Collier on Bankruptcy ¶ 541.28 (16th ed. 2017). Important then to the Court is the amount in the bank account at the time of the TGS Transfer. To demonstrate the Court's concern, the following two hypothetical scenarios are provided:
The above scenarios demonstrate that Defendants' presumption that the funds in the Regions Bank Account never dropped below $2,210,883.76 may or may not be correct. At this stage in the case, however, the evidence submitted by the parties does not permit the Court to make a determination of such an issue.
Of the remaining preferential transfers in question, Defendants do not claim that each qualifies as a non-preferential transfer under Section 547(b). Instead Defendants argue that despite all the elements being met, an ordinary course defense and a subsequent new value defense may be raised for each remaining preference claim. The Court notes that regarding the subsequent new value defense, the Trustee concedes that $110,000 of the Aerodynamic Transfers constitutes new value as defined by Section 547(c)(4), reducing the Trustee's claim to $165,000.
To determine whether payments were made in the ordinary course of business, a creditor must show: (1) payment was on account of a debt incurred in the ordinary course of business; (2) payment was made in the ordinary course of business between the debtor and creditor; or (3) payment was made according to ordinary business terms. 11 U.S.C. § 547(c)(2).
The first requirement is satisfied if the debtor-creditor relationship is strictly for ordinary business purposes and remains at arm's length. In re NewPage Corp., No. 11-12804 (KG), 2016 WL 5787237, at *4 (Bankr. D. Del. Sept. 30, 2016). The Court finds that Aerodynamic satisfies this element.
The second requirement asks the Court to determine if the transaction was in the ordinary course between the parties by taking into account the length of time the parties have done business, the amount
Defendants further argue that if the actions of the parties do not demonstrate an ordinary course of payments, among themselves, the Aerodynamic Transfers were made according to ordinary business terms in the industry. In support of their argument, Defendants point only to the Casafin Transfers (discussed infra) and how those transfers were nearly identical to the Aerodynamic Transfers. The Court does not find that the business practices of only one other private jet company, owned by nearly identical owners, satisfies what the business practices of the entire private jet industry may be. Defendants have not met their burden to show that an ordinary course defense to the Aerodynamic Transfers exists. The Court thus finds that the Aerodynamic Transfers are avoidable in the amount of $165,000.
To begin, the Court notes that regarding the subsequent new value defense, the Trustee concedes that $151,983.01 of the Casafin Transfers constitutes new value as defined by Section 547(c)(4), reducing the Trustee's claim to $466,414.94. Moving to the ordinary course defense, the Court finds that the transactions were made at arm's length and the first element is satisfied.
In seeking to show that the parties executed the Casafin Transfers in an ordinary course of business, Defendants argue that this case is similar to the Court's decision in NewPage. In NewPage, the litigation trustee sought to avoid $413,411.48 worth of transfers made to satisfy invoices sent by the defendant, a manufacturer and designer of equipment used in the pulp and paper industry. NewPage, 2016 WL 5787237 at *1, 3. At issue were roughly 180 invoices that were billed over a three-month period. Id. at *3. The defendant argued that the transfers were made in the ordinary course of business and that the defendant could prove this by demonstrating that the historical period of payment and the preference period of payment were substantially similar despite large variances in how many days it would take to pay an invoice. Id. The Court analyzed 1,275 invoices and hundreds of payments made before the transfers in question (the "historical period"), noting the average, median, mode, and range of each payment; and then compared these findings to the average, median, mode and range of each payment made on the invoices during the time of the transfers in question (the "preference period").
The present case is not analogous to NewPage. The historical period in NewPage had over 1,200 invoices and hundreds of payments on those invoices. The historical period for the Casafin Transfers had 118 invoices with, more importantly, only 18 payments. The preference period in NewPage consisted of approximately 180 invoices with at least 89 separate payments.
The Court first notes that Defendants do not dispute the Frac Rentals Transfers constituted a preferential transfer under Section 547 of the Code. Instead, Defendants raise two affirmative defenses, an ordinary course defense and a subsequent new value defense.
Beginning with subsequent new value, Defendants claim that the Frac Rentals Transfers, which occurred from May 16, 2013, to December 31, 2013, constitute new value under Section 547(c). To calculate subsequent new value, the Court has adopted Judge Sontchi's process explained in Sierra Concrete Design. See id. In Sierra Concrete Design, Judge Sontchi outlined a formula to determine a party's preference exposure when multiple preference payments are made, and several instances of new value are issued. Id. at 307. Looking at a hypothetical set of transfers and payments, Judge Sontchi concluded that the formula for determining new value is the value of the first transfer, less the value of the services provided, plus the value of the second transfer (and so on and so forth). Id. In essence, the formula can be summed up as: [(value of transfer 1)- (new value provided) + (value of transfer 2)]. See In re Proliance Int'l, Inc., 514 B.R. 426, 437 (Bankr. D. Del. 2014). In applying this formula, the Court need not "link specific invoices to specific payments.
Defendants, using Sierra Concrete Design, argue that Frac Rentals provided GFES with new unsecured credit, which remained unpaid and unavoidable as of the Petition Date with a net exposure of no more than $69,137.97.
To further argue the Frac Rentals Transfers' unavoidability, Defendants argue the remaining $69,137.97 is unavoidable under the ordinary course defense. As set forth in the Aerodynamic and Casafin transfers, Defendants present evidence of the number of days it took to pay the invoices to demonstrate the payment methods were made in the ordinary course among the parties. Defendants also present the Casafin and Aerodynamic transfers as further evidence that the transfers were made in the ordinary course. Both of Defendants' arguments fail. For the Frac Rentals Transfers the Court is only presented with ten invoices. As previously discussed, there are not enough transfers to establish an ordinary course among the parties. Furthermore, Defendants reference to Casafin and Aerodynamic is inappropriate. Section 547(c)(2)(A) allows an affirmative defense for the creditor asserting the defense, not other creditors a debtor may have. The Court cannot consider Casafin or Aerodynamic under this subsection. Section 547(c)(2)(B) also allows for an affirmative defense for following industry standards. Casafin and Aerodynamic are not in the same industry as Frac Rentals, so the Court will not consider evidence under Section 547(c)(2)(B). Here, Defendants have not met their burden of showing the transfers were made in the ordinary course. The Court thus finds that the Frac Rentals Transfers are avoidable in the amount of $69,137.97.
Before moving on to the substantive analysis, the Court notes that only the Trustee has moved for summary judgment on the remaining counts. The standard, therefore, is that of a simple motion for summary judgment, and the burden is solely placed on the Trustee to "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56; Bailey v. United Airlines, 279 F.3d 194, 198 (3d Cir. 2002).
Regarding contractual issues, New York law governs both the 2012 SPA and the 2013 SPA. Stoll Decl. Ex. 34, at § 3.04; Ex. 78, at § 3.04. As the contract expressly
Under New York law, "[t]he elements of a cause of action for breach of contract are (1) formation of a contract between plaintiff and defendant; (2) performance by plaintiff; (3) defendant's failure to perform; and (4) resulting damage." Clearmont Prop., LLC v. Eisner, 58 A.D.3d 1052, 872 N.Y.S.2d 725, 728 (2009). Regarding the final element of damages, the non-breaching party may be "entitled, as a matter of law, to recover market value damages to the extent that they can be proven with reasonable certainty." Schonfeld v. Hilliard, 218 F.3d 164, 182 (2d Cir. 2000). Here, the formation of the SPAs and performance by GFES are uncontested, so the Court's analysis focuses on Defendants' failure to perform and any resulting damages.
Beginning with the 2012 SPA, the Trustee alleges that although MOR MGH made the initial $10 million purchase and additional purchase at the end of the fourth fiscal quarter in 2012, MOR MGH breached the 2012 SPA by failing to make the required purchases for each of the first two quarters of 2013. Defendants argue that a factual issue exists because Moreno stated he did make certain obligation payments and recalls instructing his family office to make the 2012 SPA required payments. Moreno Depo. 149:11-20. Defendants' allegation is contradicted by their own answer (and amended answer) to the Complaint.
When a party is asserting that a fact is genuinely disputed, it must support the assertion by "citing to particular parts of materials in the record, including depositions... admissions, interrogatory answers, or other materials[.]" Fed. R. Civ. P. 56(c)(1). If that party fails to properly address another party's assertion of fact, the court may consider that fact undisputed. Fed. R. Civ. P. 56(e)(2). "In response to a well-supported motion for summary judgment, `the non-moving party must adduce more than a mere scintilla of evidence in its favor.'" In re NewStarcom Holdings, Inc., 547 B.R. 106, 117 (Bankr. D. Del. 2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
Paragraph 55 of the Complaint states:
Stoll Decl. Ex. 99, at ¶ 55 (emphasis added). In response, Defendants answered:
Id. (emphasis added). The response was filed on September 21, 2015, and repeated in their amended answer on October 7, 2015. Id.; Stoll Decl. Ex. 100, at ¶ 55. Defendants admit here, and reaffirm in their amended answer, that they breached the 2012 SPA. In addition, the Trustee cites to
On March 23, 2017, the parties took Moreno's deposition, where he testified that he met his obligations and instructed his family to pay the SPAs. Moreno's declarations, however, are not enough to contradict Defendants' own admissions (which they admitted to twice) that MOR MGH did not purchase the preferred stock in 2013. Defendants attempt to support Moreno's statements by documenting over $50,000,000 in contributions and deposits by Moreno and MOR MGH to GFES, and indicate they may have been misclassified. But again, this lone statement does not overcome Defendants' own admissions that they breached the 2012 SPA.
The Court finds this evidence sufficient to satisfy the Trustee's claim that the 2012 SPA was breached and that MOR MGH and MMR did not make their required purchases for each of the first two quarters of 2013.
Turning to the 2013 SPA, the Trustee, as with the 2012 SPA, has properly alleged the facts by once again pointing to admissions by Defendants of their failure to satisfy the requirements under the 2013 SPA. See Blackwell Depo. 74:7-75:15; Stoll Decl. Ex. 36, at ¶ 62; Ex. 99, at ¶ 58; Ex. 100, at ¶ 58. Defendants argue again that Moreno made many contributions and that they may have been mislabeled or mishandled.
The Trustee asserts that GFES was harmed in the amount of $5,961,923 and $10,000,000 by MOR MGH and MMR not performing their obligations of the 2012 SPA and 2013 SPA, respectively. Defendants counter that GFES was not harmed by MOR MGH and MMR failing to satisfy the SPAs because Moreno was still infusing GFES with liquidity.
"Under New York law, the normal measure of damages for breach of contract is expectation damages-the amount necessary to put the aggrieved party in as good a position as it would have been had the contract been fully performed." McKinley Allsopp, Inc. v. Jetborne Int'l., Inc., 1990 WL 138959, at *8 (S.D.N.Y. Sept. 19, 1990); see also Topps Co., Inc. v. Cadbury Stani S.A.I.C., 380 F.Supp.2d 250, 261 (S.D.N.Y. 2005) ("Damages for a breach of contract are normally limited to the amount necessary to put the plaintiff in the same economic position plaintiff would have occupied had the breaching party performed the contract."); In re Residential Capital, LLC, 533 B.R. 379, 407 (Bankr. S.D.N.Y. 2015) (explaining that expectation damages "offer the broadest remedy" and represent the "amount necessary to put [a] plaintiff in as good of a position" had there been no breach by a defendant) (citations and internal quotation marks omitted).
The Trustee's breach of contract claims are founded upon the failure of GFES to receive the payments promised in the
The corporate structure of GFES and its interplay with Defendants is complicated. While the Court agrees with the Trustee that certain monies were not paid as required by the SPAs, the Trustee has not presented enough evidence to show that awarding damages would make GFES whole.
The Trustee has not met his burden in showing that GFES was damaged by Defendants' failure to satisfy the requirements under the SPAs and summary judgment is therefore denied.
The Trustee also asserts that Moreno in his personal capacity tortiously interfered with the performance by MOR MGH of the SPAs. To adequately plead tortious interference with contract under New York law, a plaintiff must show: (1) a valid contract; (2) defendants knowledge of the contract; (3) defendant's intentional interference with the contract and a resulting breach; and (4) damages. Pelosi v. Schwab Capital Markets, L.P., 462 F.Supp.2d 503, 526 (S.D.N.Y. 2006).
Undisputed in this case is that valid contracts existed between GFES and MOR MGH/MMR. Also, Moreno had knowledge of the contracts.
Furthermore, there exists a question of fact as to the extent of Moreno's intent in interfering with the SPAs. The Court understands "[t]he issue of intent is `particularly inappropriate for resolution by summary judgment because evaluating state of mind often requires the drawing of inferences from the conduct of parties about which reasonable persons might differ.'" Justofin v. Metropolitan Life Ins. Co., 372 F.3d 517, 523-24 (3d Cir. 2004) (quoting Riehl v. Travelers Ins. Co., 772 F.2d 19, 24 (3d Cir. 1985)). That being said, relevant case law in this Circuit does not "mandate trial or denial of a motion under Rule 56" on matters involving intentional torts, but instead allows an inquiry on a case by case basis. Chase Bank USA, N.A. v. Hess, 2013 WL 867542, at *3 n.35 (D. Del. Mar. 7, 2013).
Throughout his opening brief and reply brief, the Trustee spends many pages describing Moreno's actions from 2010 to 2013, and arguing how those actions were contrary to the best interests of GFES. These facts (many of which are disputed) may demonstrate Moreno's performance, but absent in the Court's view is evidence
In the bankruptcy proceedings, Moreno filed two proofs of claim against GFES, one being an administrative expense claim in the amount of $1,539,029 and the second being a contingent liability claim arising from the Shell Agreement and Shell Guarantee in the amount of $80,000,000.
Moreno seeks $1,539,029 in administrative expenses relating to the fees and expenses he incurred in connection with the examiner process of the bankruptcy. Stoll Decl. Ex. 130-131. Moreno claims that these costs were necessary to defend against any allegations raised by the Committee in their attempt to appoint an examiner and to respond to any submissions by the examiner and the Committee regarding claims against him.
Under Section 503(b)(1)(A), an administrative expense includes "the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case." "Generally, Section 503(b) priorities should be narrowly construed to maximize the value for the estate for all creditors." 4 COLLIER ON BANKRUPTCY ¶ 503.06[2] (16th ed., rev. 2017). To qualify under Section 503(b)(1)(A), the applicant must prove (i) the expense arose from a post-petition transaction between the creditor and the debtor, and (ii) the expense must have been "actual and necessary" to preserve the estate. See In re New Century TRS Holdings, Inc., 446 B.R. 656, 661 (Bankr. D. Del. 2011). When referencing indemnification clauses, specifically, "courts have held that an indemnification claim based upon pre-petition services or conduct is not a cost or expense" despite services being rendered after the commencement of a case. In re Summit Metals, Inc., 379 B.R. 40, 56 (Bankr. D. Del. 2007).
Moreno's indemnification clause arose from pre-petition conduct. The type of actions that Moreno seeks protection from, and to be indemnified for, are actions that occurred prior to the Petition Date. The fact that the defense of such actions occurred post-petition is inconsequential. See In re Mid-Am. Waste Sys., Inc., 228 B.R. 816, at 822-23 (Bankr. D. Del. 1999) ("[I]ndemnification claims are merely claims for prepetition compensations for services rendered, not unlike salary or other benefits."). The actions in question occurred pre-petition while Moreno was serving in his capacity as an officer and director, and the GFES bylaws containing the indemnification clause were enacted pre-petition. Based upon these facts, Moreno's expenses do not arise from a post-Petition transaction.
Moreno's expenses are additionally not "actual and necessary" to preserve the estate. To satisfy the actual and necessary test, the benefit of any action must directly and substantially benefit the estate. Mid-Am.
An essential element under Section 503(b)(4) is that the work be "actual and necessary" (which the Court has found Moreno's expenses were not). Therefore, no claim under 503(b)(4) is permissible, and summary judgment seeking to overturn Moreno's administrative claim is granted in favor of the Trustee.
Moreno seeks reimbursement and declaratory judgment in regard to the $80,000,000 in contingent liability arising from the Shell Agreement and Shell Guarantee. However, Pursuant to Section 2.5 of the Shell Guarantee, Moreno assigned all of his rights against GFES to Shell. Defendants have not established sufficient evidence demonstrating that Moreno could circumvent the Shell Guarantee and be entitled to the money. As such, the Court awards summary judgment regarding Counts 30, 34 and 35 in favor of the Trustee.
The Trustee argues against Moreno's preference claims pertaining to TGS, Aerodynamic, Casafin and Frac Rentals. Under Section 502(d), summary judgment for the Trustee can only be granted if the Trustee is successful in his motion to deny those specific preference claims. As discussed above, the Court did not grant the Trustee summary judgment on his preference claim, and thus summary judgment on count 29 is denied.
For the foregoing reasons, the Court finds as follows:
1. The Court denies the Trustee summary judgment on breach of the 2012 SPA and 2013 SPA (Counts 11 and 12).
2. The Court denies the Trustee summary judgment on Moreno's tortious interference with contract (Count 14).
3. The Court grants summary judgment on the Frac Rentals Transfers (Count 19) to the Trustee in part in the amount of $69,137.97; and grants summary judgment in part to Defendants with the remaining amount of $524,828.21 being unavoidable.
4. The Court denies the Trustee summary judgment on the TGS Transfer (Count 21).
5. The Court grants summary judgment on the Aerodynamic Transfers (Count 23) to the Trustee in part in the amount of $110,000; and in part to Defendants with the remaining amount of $165,000 being unavoidable.
6. The Court grants summary judgment on the Casafin Transfers (Count 24) to the Trustee in part in the amount of $466,414.94; and in part to Defendants with the remaining amount of $151,983.01 being unavoidable.
7. The Court denies the Trustee summary judgment on Moreno's objection to the preference claims (Count 29) pursuant to Section 502(d).
8. The Court grants the Trustee summary judgment on Moreno's reimbursement
9. The Court grants the Trustee summary judgment on Moreno's administrative claims (Count 31).
The Court will issue an order giving effect to its ruling.
