Joan N. Feeney, United States Bankruptcy Judge.
The matter before the Court is the Motion for Summary Judgment filed by the Plaintiff in this adversary proceeding, the Chapter 7 Trustee of the Debtor (the "Plaintiff" or "Trustee"), on Counts I and III of his Complaint, through which he seeks to avoid an alleged fraudulent transfer by the Debtor to the Defendants, Stephen Chiang and Chialin Chiang, who are the Debtor's wife and son. The Defendants filed an Opposition to the Trustee's Motion, together with the Affidavit of Andrew Taiho Chiang (the "Debtor" or Mr. Chiang"), as well as the Affidavits of the Defendants, the Debtor's spouse, Chialin T. Chiang ("Mrs. Chiang"), and his eldest son, Stephen T. Chiang ("Stephen") (jointly, the "Defendants"). The Trustee filed a Reply to the Defendants' Opposition, and the Court heard the Motion and the Opposition on November 22, 2016 and took the matter under advisement.
The parties filed a Joint Pre-Trial Memorandum on July 22, 2016, prior to the filing of the Trustee's Motion for Summary Judgment. In their Joint Pre-Trial Memorandum, they agreed that this Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157 and 1334 and
The issue presented is whether the Trustee sustained his burden of proving either an actual or fraudulent transfer by the Debtor of an interest in his residence to his son so that the interest can be avoided and recovered for the benefit of the estate. For the reasons set forth below, the Court shall grant the Trustee's Motion for Summary Judgment.
The Debtor filed a Chapter 7 petition on September 15, 2014, together with Schedules, a Statement of Financial Affairs, and other required documents. On Schedule A-Real Property, he listed an ownership interest in his residence as follows:
The Debtor listed the current value of his interest in 563 Marrett Road, Lexington, Massachusetts (the "Property") as $327,024.00 and the amount of a secured claim encumbering the residence as $381,632.25. On Schedule B-Personal Property, he listed, among other assets, a business checking account and a joint checking account at Eastern Bank, as well as three IRAs with a total value of approximately $256,000.00. On Schedule C-Property Claimed as Exempt, he claimed the state exemptions for the assets listed on Schedule B. On Schedule D-Creditors Holding Secured Claims, he identified "Provident Funding" as the holder of a mortgage granted in 2012 in the amount of $381,632.25. On Schedule H-Codebtors, the Debtor identified the Defendants as co-debtors with respect to the secured claim of Provident Funding. On October 25, 2014, the Debtor filed an amended Schedule C for the purpose of claiming a Massachusetts homestead pursuant to Mass. Gen. Laws ch. 188, § 1 with respect to the Property.
The Trustee requested a bar date on October 29, 2014. On October 30, 2014, the Bankruptcy Noticing Center notified all creditors listed on the Debtor's matrix that the deadline for filing proofs of claim was January 28, 2015. Only one creditor, Amos Financial LLC ("Amos"), filed a proof of claim for a money judgment in the sum of $145,039.50. The Debtor identified Amos on Schedule F-Creditors Holding Unsecured Nonpriority Claims as the holder of a claim in the sum of $153,008.01 arising from "2007 loan to business owned by the Debtor with his partner with personal guarantees." On Schedule I-Current Income of Individual Debtor(s), the Debtor revealed that he is unemployed and that his sole source of income is a monthly contribution of $1,000.00 from an undisclosed person or entity. He also disclosed in response to question 11 on Schedule I
On July 14, 2015, the Trustee filed a four-count Complaint against the Defendants pursuant to 11 U.S.C. § 544 and Mass. Gen. Laws c. 109A, to avoid a fraudulent transfer of the Property by the Debtor to Mrs. Chiang, to their son, Stephen, and to sell the Property free and clear of the interest of the non-debtor co-owner, Mrs. Chiang. The Trustee set forth the following counts: Count I: Fraudulent Transfer under Mass. Gen. Laws ch. 109A, § 5(a)(1) against the Defendants; Count II: Fraudulent Transfer under Mass. Gen. Laws ch. 109A, § 5(a)(2) against the Defendants; Count III: Fraudulent Transfer under Mass. Gen. Laws ch. 109A, § 6(a) against the Defendants, and Count IV: Sale of Co-owner's Interest in Property under 11 U.S.C. § 363(h) against Mrs. Chiang.
The Trustee filed a Statement of Undisputed Facts in connection with his Motion for Summary Judgment. The undisputed facts set forth in the Summary Judgment Statement, however, are identical to the Undisputed Facts set forth in the Joint Pretrial Memorandum. Thus, paragraphs 1-60 set forth in the Statement of Undisputed Facts corresponds to paragraphs 35-94 set forth in the Joint Pretrial Memorandum. The undisputed facts are reproduced below with minimal modifications.
On October 29, 1998, the Debtor and Mrs. Chiang purchased the Property as statutory tenants by the entirety. The Property is a single family home and is not used in the production, transmission or distribution for sale of electric energy, or natural or synthetic gas for light, heat or power. The Debtor and Mrs. Chiang did not obtain financing to acquire the Property, paying the purchase price of $646,000.00 in cash.
In or around March 2003, the Debtor became the one-third owner and a director of Wideband Solutions, Inc., a Massachusetts corporation that was engaged in the business of developing audio software. Mr. Chiang worked as operations manager and was involved in the manufacturing of Wideband Solutions, Inc.'s products. In or about January 2007, the Debtor, Wideband Solutions, Inc. and others were named as defendants in a lawsuit brought by ClearOne Communications, Inc. ("ClearOne") in the 3rd District Court of Salt Lake County, Utah. The action was removed to the United States District Court for the Central District of Utah, Case No. 2:07-CV-00037-DN. In its action, ClearOne alleged, among other things, that the defendants misappropriated trade secrets and breached their fiduciary duties (the "Utah Case").
Approximately six months after the commencement of the Utah case, on August 10, 2007, the Debtor signed an unconditional personal guaranty of a $100,000.00 note between Wideband Solutions, Inc. and Sovereign Bank ("Sovereign Note"). The Sovereign Note has not been paid.
On November 5, 2008, the jury in the Utah Case returned a special verdict in which it unanimously found that all defendants, including the Debtor, misappropriated trade secrets, that the misappropriation
Approximately one week after the jury verdict, on November 13, 2008, the Debtor recorded a declaration of homestead on the Property. Less than two weeks later, on November 24, 2008, the Debtor obtained a loan in the amount of $417,000.00, which was secured by a first mortgage on the Property ("2008 Mortgage"). The 2008 Mortgage is discussed in more detail below.
On April 20, 2009, the United States District Court for the Central District of Utah entered an Order and Memorandum Decision in which it found that "[t]he most egregious instances of lack of good faith are found in the behavior of [co-defendant] Jun Yang and Andrew Chiang [Debtor]" and that "Mr. Chiang breached his fiduciary duty to ClearOne (he was a former owner and officer of ClearOne's predecessor) by taking confidential materials after signing an Asset Purchase Agreement that transferred those materials to another entity, and by using such information and technology in products that directly competed with ClearOne. For that breach, the jury assessed $3,000,000.00 in punitive damages against him." The district court also stated: "Mr. Chiang, late in the litigation, made a `sudden discovery' of materials he took in violation of the asset purchase agreement. His explanation on the stand for his late discovery and disclosure of these materials was less than convincing."
On April 27, 2009, ClearOne registered its foreign judgment from the Utah Case with the United States District Court for the District of Massachusetts, docket no. 09-mc-10125-NMG. On May 7, 2009, the United States District Court for the District of Massachusetts issued a writ of execution as to the Debtor. On June 19, 2009, ClearOne filed a motion, inter alia, to have the 2008 Mortgage subordinated to ClearOne's execution, alleging that the 2008 Mortgage constituted a fraudulent transfer pursuant to Mass. Gen. Laws c. 109A. The Debtor filed an opposition to ClearOne's motion and the matter was litigated.
On May 24, 2010, the United States District Court for District of Massachusetts issued a decision finding that the Debtor's 2008 Mortgage was a fraudulent conveyance made with the actual intent to hinder, delay or defraud creditors. On May 11, 2011, Amos, as successor in interest to Sovereign Bank with regard to the 2007 Sovereign Note, filed a complaint in the Superior Court of the Judicial District of New Britain, Connecticut, against, inter alia, WideBand Solutions, Inc. and the Debtor, seeking to collect the Sovereign Note, No. HHB-CV11-6013533-S ("Amos CT Action"). Amos was represented in the Amos CT Action by Leon Cameron of the Law Offices of Frank Peluso.
In addition, on November 29, 2011, Leon Cameron sent an email to, among others, the Debtor attaching a copy of Amos's Motion in Limine. The Motion in Limine contained a certificate of service indicating that the motion was sent via first class mail to, among others, Andrew C. Chiang at 563 Marrett Rd., Lexington, MA 02421-7608. Moreover, on December 20, 2011, Leon Cameron sent an email to, among others, the Debtor attaching a copy of Amos's Offer of Compromise in the amount of $60,000.00. The Offer of Compromise contains a certificate of service indicating that it was sent via first class mail to, among others, Andrew C. Chiang [sic] at 563 Marrett Rd., Lexington, MA 02421-7608. The Debtor never appeared in the Amos CT Action.
The Debtor has been unemployed since 2009. Mrs. Chiang is employed and has earned an average of $39,936.00 for the years 2009 through 2014. Between 2006 and 2010, the Debtor and Mrs. Chiang paid in excess of $175,000.00 in tuition, room, board, and support for their son Stephen Chiang to attend college. Stephen also obtained loans and grants to finance his education. Between 2007 and 2011, the Debtor and Mrs. Chiang paid in excess of $175,000.00 in tuition, room, board, and support for their other son, Lee Chiang, to attend college. Lee Chiang also obtained loans and grants to finance his education. Neither the Debtor nor Mrs. Chiang obtained student loans to pay for their children's college expenses.
On February 21, 2012 Mr. Chiang, individually, settled ClearOne's claims against him — claims which exceeded $2,500,000.00.
On June 28, 2012, the Debtor and Mrs. Chiang transferred the Property from themselves as statutory tenants by the entirety, to themselves and Stephen, as joint tenants, for consideration of $1.00 (the "Transfer"). At the time of the Transfer, Stephen was 24 years old and residing in the Property with the Debtor and Mrs. Chiang.
As a result of the Transfer, the Debtor's ownership interest in the Property, had a fair market value of $995,000.00, "decreased from a one-half interest [sic] in the Property to a one-third interest."
Stephen has never contributed to the mortgage payments or paid rent to live in the Property. Contrary to the Debtor's representation on Schedule I, Stephen pays the family's cell phone bill, which is approximately $200.00 a month.
The Debtor's financial situation, including the value of his assets and the amount of his liabilities, was essentially the same at the time of the Transfer as at the time of his bankruptcy case filing. At the time of the Transfer, the Debtor was unemployed and he remains unemployed. At the time of the Transfer, the Sovereign Note remained unpaid.
On May 13, 2013, judgment entered against the Debtor, jointly and severally with codefendant Jun Yang, in the Amos CT Action in the amount of $127,872.90, plus costs of $64.63 and attorneys fees of $19,180.95. On August 22, 2013, Amos filed a complaint in the Middlesex Superior Court, Civil Action No. 2013-03723-D, seeking to enforce the Amos CT Action judgment ("Amos MA Action"). On September 19, 2013, the Debtor filed an answer in the Amos MA Action.
On August 27, 2014, the Debtor recorded another Declaration of Homestead on the Property.
At the time he commenced his Chapter 7 case, the principal balance owed on the 2012 Mortgage was $381,632.25. The parties stipulated that the Debtor had no nonexempt assets. At the time he filed his Chapter 7 case, the Debtor owed $145,039.50 on the Sovereign Note. He included on Schedule F only one other debt, i.e., $2,574.13 owed to Chang and Yoo, LLP for "2013-2014 legal services."
The current value of the Property is approximately $1,050,000.00. The Debtor, Mrs. Chiang, and Stephen continue to reside at the Property.
The Debtor and the Defendants filed Affidavits in support of the Opposition to the Motion for Summary Judgment. The Debtor represented in his Affidavit, which he signed under penalty of perjury on October 13, 2016, that when he and Mrs. Chiang were preparing to finish the paperwork with respect to the 2012 refinancing of the Property "we were told we needed to add the income of our son, Stephen and to do so we need to deed the property from us to us and our son." He added that "we refinanced to pay off the old mortgage loan and to pay the costs of the refinance," adding that "we did not take any money ourselves" and that "[t]he only change was the interest rate." The Debtor also represented that at the conclusion of the ClearOne case in Utah [i.e., April 21, 2009] he was told to cease contact with Jun Yang and Lonny Bowers, which included "changing my email from gmail to Verizon." Accordingly, the Debtor represented that he was unaware of the Amos CT Action at the time of the 2012 refinancing of the Property.
Mrs. Chiang reiterated her husband's statement with respect to the need to add their son's income as part of the refinancing. Stephen in his Affidavit also represented that "I was asked to join as a borrower on a refinancing of my parent's house in 2012," adding "I was told this would include the house being deeded from them to the three of us." He also stated that he considered the Property to be his
Neither the Debtor nor the Defendants identified the individual at Provident Funding who told them that their son's income was required for the refinancing or why his name was required to be added to the deed and whether Stephen was required to document his income either through the submission of tax returns or a financial statement. In addition, neither the Debtor nor the Defendants represented that Stephen was employed at the time of the Transfer, and, if he was employed, the name of his employer and the amount of his income. Moreover, the Debtor and Mrs. Chiang do not appear to have been in default with respect to the 2008 Mortgage at the time of the refinancing.
The Trustee asks this Court to take judicial notice of the decision in
In
In
As noted above, the Debtor settled ClearOne's claims on February 21, 2012, and, approximately four months later, transferred the Property, together with Mrs. Chiang, to themselves and Stephen as joint tenants, simultaneously refinancing the Property. Thus, the Provident Funding mortgage was substituted for the Signature/Flagstaff loan, which had been determined to have been a fraudulent transfer.
As a preliminary matter, the Trustee relies on 11 U.S.C. § 544(b)(1), which provides that a trustee may avoid a transfer of property that is avoidable under nonbankruptcy law, provided that there is an actual unsecured creditor who could avoid such a transfer. Because the parties have stipulated to the existence of a creditor at the time of the Transfer of an interest in the Property to Stephen, a debt which remains unpaid, the Trustee maintains that he may use the avoiding power under § 544(b)(1) to avoid the Transfer as it occurred in 2012 — less than four years prior to the commencement of the Debtor's bankruptcy case. See Mass. Gen. Laws ch. 109A, § 10.
(footnotes omitted). Indeed, the Trustee states that the parties have stipulated to the first three factors, and, as noted below, the Defendants concede that the Debtor was insolvent.
Focusing first on whether the Transfer was of substantially all of the Debtor's assets, the Trustee contends that the Property is considered an asset of the Debtor
(footnotes omitted).
In addition to his argument that there was a transfer of substantially all the Debtor's assets, the Trustee contends that the Debtor received no consideration for the Transfer and any benefit to the Debtor from the refinancing does not constitute reasonably equivalent value. Citing Mass. Gen. Laws ch. 109A, § 4(a),
The Trustee also argues that the Debtor's liabilities exceeded the value of his nonexempt assets such that he was insolvent at the time of the Transfer or rendered insolvent by the Transfer. According to the Trustee, pursuant to Mass. Gen. Laws ch. 109A, § 3(a), a debtor is insolvent "if the sum of the debtor's debts is greater than all of the debtor's assets, at fair valuation." He adds that only nonexempt property is considered an asset for the purposes of determining insolvency,
The Trustee notes that when the Debtor commenced his Chapter 7 case, all his property was exempt and that he owed $145,039.50 on a note originally payable to Sovereign Bank, thus establishing that he was insolvent when he filed his bankruptcy petition. The Trustee adds that the debt to Sovereign Bank was outstanding at the time of the Transfer. He argues that "[i]f it is clear that the Debtor was insolvent at the time of the case filing and if it is admitted that the Debtor's financial situation was essentially identical at the time of the Transfer, the only possible inference is that the Debtor was also insolvent at the time of the Transfer."
With respect to Count III, the Trustee contends that he has established the four requisite elements for relief under Mass. Gen. Laws ch. 109A, § 6(a), namely "(1) that a transfer occurred; (2) at a time when a creditor was in existence; (3) that the Debtor did not receive reasonably equivalent value for the transfer; and (4) that the Debtor was insolvent at the time of the transfer or rendered insolvent by the transfer." The Trustee notes that the parties have stipulated to the existence of the Transfer and the existence of a creditor, Sovereign Bank, at the time of the Transfer. At the time of the Transfer, the note was in default and the present holder of the Sovereign Note, Amos, had already filed suit against the Debtor. The Trustee, based upon his previous arguments, argues that the undisputed facts demonstrate the last two elements of a constructive fraudulent transfer: that the Debtor did not receive reasonably equivalent value for the Transfer as a matter of law and that the Debtor was insolvent or rendered insolvent by the Transfer.
The Defendants maintain that the Trustee's Motion for Summary Judgment should be denied because of the circumstances surrounding the Transfer and the existence of genuine issues of material fact as to whether Stephen gave reasonably equivalent value to the Debtor and Mrs. Chiang. The Defendants rely upon Provident Funding's insistence that the refinancing was dependent upon the inclusion of Stephen's income to qualify for the new loan, adding that because Stephen had to sign the note and mortgage, his name had to be added to the deed.
The Defendants contend that there are insufficient badges of fraud to establish the Debtor's actual intent to hinder, delay, or defraud creditors. The Defendants also argue that this Court should not consider the decision in
Recognizing the six factors addressed by the Trustee, the Defendants note that the Transfer was not concealed and that the Debtor "did not remove, conceal, or abscond with the assets." While the Defendants concede that the Debtor was insolvent, they maintain that the only purpose of the refinancing was to reduce the interest rate and no additional sums were borrowed. In addition, the Defendants contend that, while the transfer was made after the Debtor had been sued in Connecticut, the Debtor would be prepared to testify that he was not aware of the lawsuit until Amos filed an action in the Massachusetts Superior Court to enforce its foreign judgment.
With respect to the issue of reasonably equivalent value for purposes of both § 5(a)(1) and 6(a) of Mass. Gen. Laws ch. 109A, the Defendants emphasize that in exchange for a one-third interest in the Property with a value of $331,666.66 ($995,000.00 ÷ 3), Stephen received more debt. i.e., $400,000.00 (debt that would appear on his credit report) than value. Under all the facts and circumstances, they contend that a comparison of what was given with what was received, including direct and indirect benefits, the Debtor received reasonably equivalent value. They note that the amount financed was the amount needed to pay off the 2008 Mortgage and that the new monthly payment amount under the 2012 Mortgage was approximately $1,000.00 less than the 2008 Mortgage monthly payment amount resulting in a savings of $360,000.00 over the 30-year life of the loan.
The Trustee rejects the Defendants' assertion that the Debtor was unaware of the lawsuit commenced by Amos. He contends that, although service of the complaint may have been compromised by a typographical error with respect to the Debtor's home address in the certificate of service, other pleadings were properly served at the Debtor's residence. In addition, the Debtor received emails through his Gmail account which he represented that he still used in a deposition conducted by the Trustee's counsel on April, 11, 2016.
The Trustee, relying upon the decision in
The Trustee also rejects the notion that a genuine issue of material fact exists as to the Transfer of all or substantially all of the Debtor's property based upon application of the $500,000.00 homestead exemption to his separate interest in the equity in the Property after deduction of the 2008 Mortgage because the Massachusetts exemption would apply to the entire equity, not just the Debtor's interest.
The United States Court of Appeals for the First Circuit articulated the well established standard for summary judgment in
Section 5 of Mass. Gen. Laws ch. 109A, which is applicable to this proceeding as a result of the trustee's strong arm powers, see 11 U.S.C. § 544(b)(1), provides in pertinent part:
Mass. Gen. Laws ch. 109A, § 5(a)(1). Section 5(b) of the statute sets forth 11 factors that are germane to a determination of actual intent:
For purposes of § 5(b)(5), an "asset" is defined as "property of a debtor," but the term does not include property encumbered by a valid lien or property "to the extent it is generally exempt under nonbankruptcy law," or "an interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant."
The United States Court of Appeals for the First Circuit considered avoidance of a transfer under 11 U.S.C. § 548(a)(1) made with actual intent to hinder, delay, or defraud any creditor of the debtor in the seminal case of
Turning to the badges of fraud set forth in Mass. Gen. Laws ch. 109A, § 5(b) that the Defendants dispute, the Court concludes that the Debtor had no assets to transfer under the definition set forth in Mass. Gen. Laws ch. 109A, § 2 as the Property was deeded to the Debtor and Mrs. Chiang as tenants by the entirety. The homestead exemption protected the entire equity in the Property which was held as "as one person, in one tenancy." See
In
Turning to the Debtor's receipt of reasonably equivalent value for the Transfer, the Court concludes that the Debtor received no direct value for the Transfer to Stephen other than the stated consideration of $1.00 and that as a result of the Transfer, the value of the Debtor's ownership interest in the Property decreased to a one-third interest as a joint tenant and Stephen received a property interest worth $331,666.66. Moreover, following the Transfer, the existing homestead protected the Property as there was no conveyance to a non-family member. See Mass. Gen. Laws ch. 188, § 10.
The Debtor and Mrs. Chiang obtained an indirect benefit as a result of the Transfer in the form of an initial lower interest rate. The Defendants assert that Stephen was responsible for the reduced interest rate, but, in fact, it was Provident Funding who refinanced the 2008 Mortgage and provided the lower interest rate to the joint tenants. Thus, in the Court's view, the Debtor transferred an undivided interest in the equity in the Property valued at $95,000.00 to Stephen for $1.00. In exchange, Stephen obtained an interest in the Property of $31,666.66 after accounting for the 2012 Mortgage and the homestead exemption.
The Court observes that while Stephen executed the note and 2012 Mortgage, there was no evidence that he was employed or any evidence that, if he were employed, who his employer was, and the amount of his compensation. In other words, there was no evidence that Stephen's income actually was required to enable the Debtor and Mrs. Chiang to make their monthly mortgage payments, particularly as it appears that the couple was making payments in the sum of $3,567.03 prior to the 2012 refinancing. Indeed, in view of the stipulated facts that the Debtor contributed $350,000.00 toward his sons' education, that the Debtor listed $-0- as son's household contribution on Schedule J, and that Stephen now contributes, in his words during his April 11, 2016 deposition, "around $200 a month," to the family by paying cell phone bills, the Court is unable to conclude that the transfer of a one-third interest in the Property worth $33,166.66 for $1.00 was reasonably equivalent value, despite the liability on the 2012 Mortgage incurred by Stephen where the
The Defendants contend that the reduced payments of $1,000.00 per month over the life of the loan equal $360,000.00 and constitute reasonably equivalent value. The Court finds that this argument fails to raise a genuine issue of material fact for three reasons. In the first place, it is pure speculation that the reduced payments equal $1,000.00 per month. The mortgage interest rate is adjustable and could increase up to 7.5%, a rate higher than the 2008 Mortgage. Under those circumstances, the monthly mortgage payment would be more than what the Debtor and Mrs. Chiang were paying prior to the Transfer. Similarly, the Defendants' calculation is predicated upon the Defendants retaining ownership of the Property for 30 years on the same terms as the 2012 Mortgage. The Defendants produced no evidence that the Property would be held for that length of time, indeed any length of time after the conclusion of the Debtor's bankruptcy case. Finally, the Defendants, without analysis, assume that the full benefit of the reduced interest rate should be attributed to the Debtor's interest in the Property when the Property was held in a tenancy by the entirety by the Debtor and Mrs. Chiang.
Under those circumstances, the Court concludes that the Debtor's transfer of his interest in the Property, though not technically an asset for purposes of Mass. Gen. Laws ch. 109A, § 5(b)(5) was a transfer for less than reasonably equivalent value. The Defendants' calculation of the value of the reduced interest rate is too speculative to warrant a determination that it constituted reasonably equivalent value. See
Based upon the the factors set forth in Mass. Gen. Laws ch. 109A, § 5(b) as well as those identified by the First Circuit in
Section 6 of ch. 109A provides:
Mass. Gen. Laws ch. 109A, § 6(a). The Defendants have admitted that the Debtor was insolvent at the time of the Transfer and that a creditor existed.
In view of the foregoing, the Court shall enter an order granting the Trustee's Motion for Summary Judgment on Counts I and III of his Complaint and overruling the Defendants' Opposition. The Court also shall enter an order declaring as moot Count II of the Complaint as the Trustee sought to avoid the transfer as a fraudulent transfer pursuant to that count and scheduling further proceedings on Count IV through which the Trustee seeks to sell the interest of the other co-owner.
Mass. Gen. Laws ch. 109A, § 10
"Asset", property of a debtor, but the term shall not include:
Mass. Gen. Laws ch. 109A, § 2.
