OPINION RE: HUNTINGTON'S OCTOBER 7, 2011 MOTION—ENFORCEMENT OF AUTOMATIC STAY

JEFFREY R. HUGHES, Bankruptcy Judge.

The Huntington National Bank ("Huntington") requests that the automatic stay be enforced with respect to litigation that El Camino Resources, Ltd. ("El Camino") has commenced against it in the federal district court.1 For the reasons given in this opinion, the court determines that the stay prohibits El Camino from proceeding further with that litigation.

JURISDICTION

Jurisdiction exists2 and the issue raised is a core matter.3 This court also has the authority to enter a final order4 because the matter relates to the enforcement of the automatic stay. Cf. Meoli v. Huntington Nat'l Bank (In re Teleservices Group, Inc.), 456 B.R. 318, 335-36 (Bankr. W.D.Mich.2011).

BACKGROUND

Barton Watson, a convicted con man, used both Teleservices Group, Inc. ("Teleservices") and a related company, Cyberco Holdings, Inc. ("Cyberco"), to perpetrate a massive fraud against numerous equipment finance companies, including El Camino.5 He deceived his victims by convincing them that they were financing Cyberco's purchase of computer equipment from Teleservices. Although Teleservices was held out as an independent, third party vendor, it was in fact nothing more than a few bank accounts. Watson used fake invoices to trick the equipment finance companies into depositing millions of dollars into one of these accounts. He would then transfer the purloined funds to Cyberco in order to sustain the scheme as well as to support his own extravagant lifestyle.

Huntington became involved when it replaced a Chicago bank as Cyberco's lender. The relationship included Huntington's management of Cyberco's cash through a revolving line of credit combined with regular sweeps of Cyberco's Huntington accounts. Consequently, Huntington ended up being the recipient of all of the wire transfers Watson had been making from Teleservices to Cyberco. Huntington also received some checks directly from Teleservices during Cyberco's waning months in payment of the Cyberco indebtedness.6

Trustee has sued Huntington to avoid as fraudulent both the payments Huntington received directly from Teleservices and the amounts it received indirectly through the wire transfers being made into Cyberco's deposit accounts. The issue here, though, relates to only one of the direct transfers, that being an October 22, 2004 check from Teleservices to Huntington in the amount of $1,945,283.04. The issue arises because El Camino claims that it can trace what it had deposited with Teleservices to that check.

This court has already determined that the October 22nd check represented an actually fraudulent transfer by Teleservices and that Huntington cannot claim good faith in connection with its receipt.6 However, a final determination of Huntington's liability regarding this transfer and the many others it received has yet to be made because some issues still remain. Moreover, the district court will have to review de novo whatever this court does finally decide.7

As for the district court litigation, it too is coming to a close. El Camino's original complaint included counts that Huntington had aided and abetted Watson's fraud and that it had otherwise converted what El Camino had paid Teleservices. However, the district court summarily dismissed these counts,8 leaving El Camino at this point with only its claim that Huntington was unjustly enriched by the October 22nd transfer.9 Trial of this remaining count is scheduled for April 2012.

Huntington's request to have the district court litigation stayed is prompted by its concern that it will have to account twice, once to the Teleservices estate and again to El Camino, for this one transfer. The motion was heard on November 22, 2011. The court took the matter under advisement at the conclusion of oral argument.10

DISCUSSION

Standing

As El Camino correctly points out, the automatic stay protects only the estate and the debtor. See, e.g., Patton v. Bearden, 8 F.3d 343, 348 (6th Cir.1993); Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 126-27 (4th Cir.1983). Therefore, a junior mortgagee ordinarily has no standing to oppose a senior mortgagee's motion to modify the stay. It is also typical for the trustee, as opposed to a creditor, to decide whether the stay should be enforced or not. Indeed, in this instance Huntington is not even a creditor of the Teleservices estate.11

Nonetheless, Trustee's decision to commence this adversary proceeding has made Huntington an unwilling participant in this estate's administration. Moreover, Trustee's pursuit of the same transfer that gives rise to El Camino's unjust enrichment claim does raise the spectre of Huntington having to pay twice. It only seems fair, then, that Huntington should be able to ask this court whether the Section 36212 stay applies.

"In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The concept reflects both the Constitution's requirement that an Article III court must actually have a "case or controversy" before it and the limits that the federal judiciary has imposed upon itself over the years. Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Therefore, a party seeking relief from a federal court must allege "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 751, 104 S.Ct. 3315 (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)). However, a party's standing is ultimately to be decided through the court's own assessment of the claim being made.

Allen v. Wright, 468 U.S. at 752, 104 S.Ct. at 3325.

With this guidance, the court is satisfied that Huntington does have standing to appear before it and argue the merits of whether the automatic stay affects El Camino's district court litigation. As another court said in a similar case:

Rehab. Inner City Housing, LLC v. Mayor of Baltimore City (In re Lesick).13

In this instance, Huntington clearly risks additional loss if both lawsuits proceed unabated. Moreover, the loss is not speculative given that the district court litigation is also pending. And finally, this court is capable of addressing the harm Huntington fears by declaring that the automatic stay applies.

Application of the Automatic Stay

The next question is whether El Camino's district court litigation in fact violates the stay. At first blush, the answer would seem to be no. The Teleservices estate is seeking the recovery of a fraudulent transfer under Section 548 whereas El Camino is asking for damages based upon unjust enrichment. Should not El Camino be entitled to pursue what would appear to be its own grievance against Huntington without interference from the bankruptcy proceeding? Indeed, the case law makes a distinction between causes of action that involve harm to the debtor and causes of action involving harm to the creditor, with the latter being treated as belonging exclusively to the creditor. "If a cause of action belongs solely to the estate's creditors . . . the trustee has no standing to pursue the claim." Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 853 (6th Cir.2002). See also Honigman v. Comerica Bank (In re Van Dresser Corp.), 128 F.3d 945, 947 (6th Cir.1997). Moreover, there may be occasions when the trustee and a creditor are both entitled to a recovery from the defendant with respect to the same transaction. Cf. Honigman, 128 F.3d at 949 (Court holding that state law, not bankruptcy law, prohibited creditor from a second recovery from the same defendant).14

However, while the general rule is to permit creditors to proceed postpetition with their own third party claims, an exception has been made for fraudulent transfer actions. In those instances, the courts have held that a creditor may not commence its own avoidance action against a third party.15 Rather, the courts have determined that the estate's right to avoid that transfer as fraudulent preempts an individual creditor's ability to proceed on its own. Id. See also 11 U.S.C. § 544(b)(1).16

All of these decisions rely upon the automatic stay for justification. However, there are two different rationales. The more popular is that the fraudulent transfer itself is part of the bankruptcy estate. Courts that subscribe to this view conclude that it is Section 362(a)(3)'s stay of acts against the estate's property that prevents individual creditors from also pursuing postpetition fraudulent transfers. See, e.g., Am. Nat'l Bank of Austin v. MortgageAmerica Corp. (In re MortgageAmerica Corp.), 714 F.2d 1266, 1275 (5th Cir.1983).

A few courts, though, have questioned MortgageAmerica Corp. because of Section 541(a)(3)'s suggestion that a voidable transfer does not become property of the estate until there has in fact been a recovery.17 For example, the Second Circuit has said:

FDIC v. Hirsch (In re Colonial Realty Co.), 980 F.2d 125, 132 (2nd Cir.1992) (quoting from In re Saunders, 101 B.R. 303, 305 (Bankr.N.D.Fla.1989)).18

This court agrees. Although the recovery of an avoided transfer certainly augments the estate, the trustee's ability to actually avoid the transfer is not an interest acquired from the debtor, but rather a power that derives from the Code itself. It mirrors the same power individual creditors have under state law to avoid fraudulent transfers. Indeed, in neither instance does the power to avoid the transfer even arise until the debtor has first divested himself of the interest to be recovered.

The court also agrees with Colonial Realty that Section 362 stays postpetition avoidance actions nonetheless because it prohibits actions being taken "against the debtor" as well. Id. at 132.19 A creditor should be able to pursue its own causes of action against another without interference from the bankruptcy estate when the creditor has a separate contractual claim against that party or the party has engaged in tortious conduct specifically injuring that creditor. However, fraudulent transfer actions are different because they do not require either privity with the transferee or even misconduct on the transferee's part. The focus instead is upon the debtor and, in particular, the debtor's decision to transfer the property in question. As for the recipient, his conduct becomes relevant only when value has also been exchanged. If, on the other hand, the transfer was gratuitous, the recipient will be held accountable in most instances regardless of his innocence.20

This distinction makes a fraudulent transfer action more akin to a post-judgment remedy than a tort or contract claim. What, for example, is the difference between a creditor's avoidance of a debtor's fraudulent transfer and that same creditor's garnishment of the debtor's accounts receivable? While each involves an action against a third party, each is predicated on there also being an obligation owed that creditor by the debtor. The third party has been targeted only because his own dealings with the debtor have placed him in the unfortunate position of being able to assist the creditor in the collection of that debt.

In sum, postpetition fraudulent transfer actions by creditors are prohibited by the automatic stay because they cannot stand independent of that creditor's claim against the debtor. As the court observed in Colonial Realty:

Id. (quoting from Saunders, 101 B.R. at 305).

Unjust Enrichment

The final question is whether the pending district court litigation should be stayed for similar reasons. El Camino insists that its unjust enrichment claim is not comparable to a fraudulent transfer action. As El Camino puts it, the relief it seeks is "both different from and not otherwise available to the Trustee in the Adversary Proceeding."21

The issue, though, is not whether El Camino has usurped a cause of action belonging to the estate. Teleservices without doubt intended Huntington's receipt of the challenged transfer. As such, Trustee, as Teleservices' successor, is in no position now to complain that Huntington was unfairly enriched. Cf. Richardson v. Huntington Nat'l Bank (In re Cyberco), 382 B.R. 118, 130 (Bank.W.D.Mich.2008). Nonetheless, Trustee, and, for that matter, Huntington, may still ask whether El Camino's pursuit of its unjust enrichment claim serves a purpose any different from the one served had El Camino chosen to pursue a prohibited fraudulent transfer action instead.22

Unjust enrichment is a common law theory. Id. at 127-28. It evolved from a court's willingness to expand the original writ of assumpsit to first provide a remedy for "implicit" contracts and then for any situation where justice warranted legal redress. Id.

Buell v. Orion State Bank, 327 Mich. 43, 56, 41 N.W.2d 472 (1950) (citations omitted).

Indeed, constructive trust, which is another theory that El Camino had been pursuing against Huntington,23 is nothing more than the equitable counterpart to unjust enrichment. The two differ only with respect to the relief received. If the defendant remains in possession of the subject property, then a court will typically impose a constructive trust as a device to compel its return. If, though, the property has been transferred and the defendant owns nothing else against which a trust could be imposed, the court will award damages instead on the theory that the defendant was unjustly enriched. Id.

Actions for unjust enrichment and constructive trust therefore share with fraudulent transfer actions a common purpose—they are all intended to remedy situations where the defendant has benefitted unfairly. And in this particular situation, it happens that Trustee has simply chosen one of these remedies and El Camino another in order to rectify what both agree is the same injustice deriving from Huntington's receipt of the same transfer. Moreover, each action is justified not upon harm being done by Huntington, but upon debt being owed by Teleservices. Indeed, the only real difference between Trustee's and El Camino's actions against Huntington is that the recovery Trustee seeks is for the benefit of all of Teleservices' creditors, including El Camino, whereas any recovery by El Camino would be only for its own benefit.

CONCLUSION

The court recognizes the injustice El Camino perceives—that it is being compelled to share with Teleservices' creditors a recovery traceable to funds that El Camino believes were stolen from it. However, the overall objective of a bankruptcy proceeding is to create a single forum into which all recoveries like the one anticipated here are to be brought and then distributed. El Camino, may, if it chooses, still claim that it has a superior right to whatever the estate recovers from Huntington on account of the October 22nd transfer. That, though, is an argument to be made before this court in connection with the administration of this case. It is not to be decided elsewhere under the guise of some third party complaint. Indeed, it is for this very reason that the automatic stay prohibits El Camino from continuing with its remaining count in the district court litigation.24

The court will prepare a separate order consistent with this opinion.