MEMORANDUM OPINION AND ORDER

SARA LIOI, District Judge.

This matter is before the Court for de novo review of the bankruptcy court's proposed findings of fact and conclusions of law (Doc. No. 1 ["Prop. FF/CL"]) with respect to the Trustee's summary judgment motion in the adversary proceeding that relates to the Chapter 7 bankruptcy case of Trina Renee Morris ("Trina" or "Debtor"). Defendant Andy Charles Morris ("Morris") has filed objections (Doc. No. 1-5 ["Obj."]), and the Trustee has filed a response to the objections (Doc. No. 1-6 ["Resp."]).1

For the reasons discussed herein, the proposed findings of fact and conclusions of law are accepted in part and rejected in part. The Court adopts the bankruptcy court's ultimate conclusion of law that the Trustee is entitled to summary judgment against Morris for the Debtor's portion of equity that was fraudulently transferred. However, the Court rejects the bankruptcy court's calculations as to the value of that equity, and, therefore, recommits the matter to the bankruptcy court for further proceedings consistent with this Memorandum Opinion and Order.

I. STANDARD OF REVIEW

Under 28 U.S.C. § 157(b)(2)(H), a proceeding "to determine, avoid, or recover fraudulent conveyances" is "core" to a bankruptcy case. Ordinarily, the bankruptcy court would fully adjudicate such core matters, including issuing a final order, subject to appellate review by the district court. 28 U.S.C. § 157(b)(1). But in Stern v. Marshall, 564 U.S. ___, 131 S.Ct. 2594, 180 L. Ed. 2d 475 (2011), the Supreme Court determined that some core claims actually may not be adjudicated by bankruptcy courts under 28 U.S.C. § 157(b) because they lack the Article III constitutional authority to do so. As pointed out by the bankruptcy judge in the instant case, according to some courts that have considered the issue, "[t]he combination of the statutory language [in §§ 157(b)(1) and (c)(1)] and the Supreme Court's decision in Stern leaves a `gap' in the bankruptcy code." (Prop. FF/CL at 8, citing cases.) The Court in Stern did not indicate how these "gap" claims should be treated.

In Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency Inc.), 702 F.3d 553 (9th Cir. 2012), one of the cases cited by the bankruptcy court as describing a statutory "gap" created by so-called Stern claims, the Ninth Circuit concluded that "bankruptcy courts have statutory authority to hear and enter proposed findings of fact and conclusions of law in a fraudulent conveyance proceeding asserted by a bankruptcy trustee against a noncreditor, subject to de novo review by a federal district court." Id. at 566. After the bankruptcy court issued its ruling in the instant case, the Supreme Court affirmed this procedure, although also finding that there is no "gap" in the statute. Exec. Benefits Ins. Agency v. Arkison, ___ U.S. ___, 134 S.Ct. 2165, 2173, 189 L. Ed. 2d 83 (2014) ("The plain text of [the statute's] severability provision closes the so-called `gap' created by Stern claims."). Under Arkison, which "assume[d] without deciding[] that the fraudulent conveyance claims . . . are Stern claims," id. at 2174, "[i]f the claim satisfies the criteria of § 157(c)(1), the bankruptcy court simply treats the claim as non-core: The bankruptcy court should hear the proceeding and submit proposed findings of fact and conclusions of law to the district court for de novo review and entry of judgment." Id. at 2173.2

It is now for this Court to "consider[] the bankruptcy judge's proposed findings and conclusions . . . after reviewing de novo those matters to which any party has timely and specifically objected." 28 U.S.C. § 157(c)(1). This de novo review is directed only toward "any portion of the bankruptcy judge's [determination] to which specific written objection has been made[.]" Fed. R. Bankr. P. 9033(d).3 "The district judge may accept, reject, or modify the proposed findings of fact or conclusions of law, receive further evidence, or recommit the matter to the bankruptcy judge with instructions." Id.

This de novo review also requires attention to the procedural posture of the case. The bankruptcy judge determined this matter on briefs following the Trustee's filing of a motion for summary judgment. Therefore, the de novo review must be attentive to the rules regarding summary judgment.

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An opposing party may not rely merely on allegations or denials in its own pleading; rather, by affidavits or by materials in the record, the opposing party must set out specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(c)(1).

In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L. Ed. 2d 142 (1970); White v. Turfway Park Racing Ass'n, 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly overruled on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L. Ed. 2d 190 (1991). Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established that create a genuine issue of material fact. Fulson v. City of Columbus, 801 F.Supp. 1, 4 (S.D. Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts. Id.

II. FACTUAL AND PROCEDURAL BACKGROUND

In the adversary proceeding before the bankruptcy court, the Trustee moved for summary judgment and for an order "(i) avoiding the transfer of the Debtor's one-half (1/2) interest in the Real Property to [Morris] as a fraudulent transfer and (ii) entering judgment in favor of the Trustee and against [Morris] in the amount of $132,852.34, which amount is equal to the value of the Debtor's one-half (1/2) interest in the Real Property on the date of the fraudulent transfer." (MSJ at 16.)4

The facts underlying this action, as noted by the bankruptcy court, are largely undisputed. No objections have been filed relating to the following factual summary by the bankruptcy court and, therefore, these facts are accepted by this Court.

(Prop. FF/CL at 2-3, footnotes in original.)

The bankruptcy court allowed the Trustee to obtain an appraiser to determine the value of the Real Estate and any improvements thereon at the time of the transfer.5 According to that appraisal, the Real Estate was valued at $390,755.00 as of the date of the transfer, with Trina's half interest being worth $132,852.34, after subtracting the mortgage debt. (See MSJ at 7.)

The bankruptcy judge ultimately concluded with respect to the Trustee's MSJ:

(Prop. FF/CL at 22.)

III. DISCUSSION

A. Defendant's Objections—Generally

The bulk of the bankruptcy judge's opinion is devoted to a discussion of the Trustee's fraudulent transfer claim under 11 U.S.C. § 548, which takes two forms: constructive fraudulent transfer (Prop. FF/CL, Section II b) and actual fraudulent transfer (Prop. FF/CL, Section II c).

A constructive fraudulent transfer claim is primarily concerned with whether the debtor received "reasonably equivalent value" for what the debtor transferred to another. In this case, the sole challenge is to the transfer of the Real Estate by way of the Divorce Agreement. The bankruptcy judge examined five aspects of the Divorce Agreement to determine whether there was "reasonably equivalent value" received by Debtor in exchange for the Real Estate transferred to Morris: (1) his waiver of child support; (2) the probable cost to Morris of selling the real estate; (3) the accuracy of the Trustee's land appraisal for purposes of valuing the relevant real estate; (4) separate property vs. marital property; and (5) Morris's assumption of marital debt under the Divorce Agreement. The majority of the objections raised by Morris (Objection Nos. 1 through 5) address these issues.

An actual fraudulent transfer claim is concerned with whether the debtor had an actual intent to hinder, defraud or delay any creditor to which the debtor was indebted. Morris does not directly challenge the bankruptcy court's ruling as to this claim, although objection No. 8 (which challenges the bankruptcy court's failure to specifically discuss fraudulent transfers under Ohio Rev. Code § 1336.05) might be read broadly as a general challenge with respect to the actual fraudulent transfer claim.

Objection No. 6 addresses the bankruptcy judge's ruling with respect to Morris's discovery motions. Objection No. 7 is very broad and appears to be only a general challenge to the overall outcome of the bankruptcy judge's ruling.

The Court will address each objection separately.

B. The Individual Objections

Objection No. 1: The Bankruptcy Court erred by granting summary judgment to Trustee denying the separate property claims of Morris

The bankruptcy judge identified as one of two areas of factual dispute the question of whether Morris had sufficiently proven that he had separate property that should be excluded from the marital property. The bankruptcy court noted:

(Prop. FF/CL at 3-4.)

The bankruptcy judge set forth the relevant law as follows:

(Id. at 14-15.) The court noted that Morris "present[ed] documentary evidence that he sold two pieces of separate property for $51,361 and $5,000, respectively." (Id. at 15.) The Trustee did not disagree that these two pieces of property were "separate property." But there was "no documentary evidence showing that the sale price of the separate property was actually received or what account the funds were deposited into." (Id., emphasis added.)

In this objection, Morris broadly interprets the bankruptcy court's conclusion as "a factual finding that there was no documentary evidence." (Obj. at 67.) He claims that the bankruptcy court "ignore[d] the closing statement and the receipt of funds as evidenced by that closing statement." (Id.) What Morris fails to grasp is the nuance in the bankruptcy court's conclusion—it was not that there was no evidence; it was that there was "insufficient evidence tracing the separate property to [Morris's] current property[,]" (Prop. FF/CL at 15, emphasis added), so as to allow the assets to retain the status of separate property.

In an affidavit attached to his opposition brief, Morris asserts that he owned two pieces of separate property prior to his marriage to Debtor. The first, a 25-acre parcel on Township Road 29, was acquired in 1992 and sold in 1997, with net proceeds totaling $51,361.34. (Morris Aff. ¶ 5; Exs. B and D.) He claims that the proceeds were used to purchase property (i.e., parcel number 22001136009—referred to as Tract IV by the Trustee) at the rear of another piece of property he owns on County Road 520 (i.e., parcel number 22001136010—referred to as Tract V), and to make improvements to parcel number 2200136007, an 18-acre parcel on Depot Street (referred to as Tract II). (Morris Aff. ¶ 6.) The sale of the Township Road property occurred around September 29, 1997 and the parcel on Depot Street (Tract IV) was purchased around October 2, 1997, lending some support to Morris's assertion. But there is nothing establishing the price he paid for the Depot Street property, nor is there any documentation to trace any part of the $51,361 in net proceeds to any improvements on Tract II. Tracing is required in order for his separate property to retain its separate nature in the context of the divorce. Some documentary or non-self-serving testimonial evidence is required to meet the burden. See Ruetz v. Ruetz, Nos. L-02-1153, L-02-1037, 2003 WL 21781604, at *6 (Ohio Ct. App. Aug. 1, 2003) ("in order to meet this burden [of proof by a preponderance of the evidence], the party seeking to establish an asset as separate property must present at least some documentary evidence tracing the asset back to its non-marital status.") (citing cases). The bankruptcy judge did not ignore Morris's claim, but only properly found a lack of tracing.

The second piece of separate property Morris identifies was a 4-plus-acre lot on County Road 6, which he acquired in 1986 as a gift from his grandmother and claims to have transferred to his mother in December 2001 in exchange for $5,000. (Morris Aff. ¶ 5; Exs. C and E.) He claims he used the $5,000 "to make improvements to the real estate that is still owned[.]" (Morris Aff. ¶ 7.) As properly pointed out by the Trustee, this current assertion contradicts Morris's deposition testimony that he transferred this second piece of property to his parents in exchange for their assumption of the mortgage on the property. (See Reply, Ex. N, at pp. 6-7 of 10.) Under summary judgment practice, Morris cannot attempt to create a material factual dispute by contradicting his own testimony.

All that said, the bankruptcy court did not base its decision upon any conclusion that there was lack of tracing (although this Court concludes that it very well could have and now specifically so finds as an additional basis upon which to accept the bankruptcy court's adjudication of this issue). The bankruptcy court stated that it "need not decide whether documentary evidence is required as a matter of law in an Ohio separate property claim because [d]efendant's separate property contradiction bars such a claim." (Prop. FF/CL at 15-16, emphasis added.) The court applied general evidentiary principles regarding how genuine issues of material fact may be created to protect oneself from summary judgment. Quoting Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999), the court noted that "a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous statement . . . without explaining the contradiction or attempting to resolve the disparity." (Id. at 16, alteration in original.) Applying the two-part test developed in Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908-09 (6th Cir. 2006),6 the bankruptcy court concluded:

(Prop. FF/CL at 16, footnote omitted.)

Morris argues that the bankruptcy court incorrectly asserted that he had not listed any separate property in the Divorce Agreement. He points to conclusory language in the Divorce Agreement to the effect that the parties own five parcels of real estate and that they "agree that their real estate is Husband's separate property free and clear of any claim" of Trina. (Obj. at 69, quoting Divorce Agreement.) He also argues that the bankruptcy judge seemed to be relying on the original asset disclosures made at the time the divorce proceedings were commenced. He claims that these documents often contain errors and inconsistencies, but that they are often corrected over time by way of discovery. That may be true; but Morris has presented no such "corrected" documentation that might establish that he, in fact, had separate property that he simply mistakenly failed to disclose in the initial filings of the divorce proceedings. Moreover, and importantly, Morris's original asset disclosure was presented in a sworn statement.

This Court finds no error in the bankruptcy court's ruling with respect to this issue, and Morris's Objection No. 1 is overruled.

Objection No. 2: The Bankruptcy Court erred by finding the deviation in child support down to zero did not create reasonably equivalent value to the Debtor

Under the Shared Parenting Plan made a part of the Divorce Agreement, neither party was to pay child support to the other. (See MSJ, Ex. I [Doc. 36-9] at 18.) The bankruptcy judge concluded that this "waiver" did not amount to "reasonably equivalent value" for the transferred real estate. (Prop. FF/CL at 12.) The bankruptcy court noted that "a party has not received reasonably equivalent value `when the debtor receives only an illusory promise in return' as `there must be some legitimate and reasonable chance of return.'" (Id., quoting Frank v. Kiesel (In re Denison), 292 B.R. 150, 154 (E.D. Mich. 2003).) Because of Trina's financial condition,7 the bankruptcy court ruled that it was highly unlikely that Trina could have paid child support and, therefore, any waiver of child support by Morris had no offsetting value. The bankruptcy court further concluded that Trina's transfer of her real estate interest in lieu of child support payments impermissibly harmed the bankruptcy estate's creditors.

In his objection, Morris argues that "[i]f one party is relieved of financial obligations, or the payment of marital debts that are equal to or substantially equal to the unencumbered asset, there is no fraudulent transfer claim." (Obj. at 71.) He asserts that his waiver of child support,8 a debt that would ordinarily not be dischargeable in bankruptcy, was of value to the debtor and, as a result, she agreed to an "unequal, but equitable division of property order as the limited equity in the real estate was the only asset remaining that could provide a benefit to the minor children for the financial loss caused by the Debtor." (Id. at 72.)

The Trustee argues in response that "[c]hild support was eliminated because of the Debtor's circumstances, not because Morris opted to forego his right to receive payments." (Resp. at 87.) Further, the Trustee points out that the bankruptcy court concluded that Trina divested herself of a significant asset (the Real Estate) without receiving anything of equivalent value in return, thus harming the creditors of her estate.

Under Ohio law, courts calculate child support according to a statutory child support schedule. (See Ohio Rev. Code § 3119.021.) A Child Support Computation Worksheet is utilized when there is a shared parenting order. (See Ohio Rev. Code § 3119.022.) A court may deviate from the calculated amount of child support based on several factors. (See Ohio Rev. Code §§ 3119.22, 3119.23.) Here, the Divorce Agreement approved by the state court simply stated that "[t]he parties agree that a deviation from the Ohio Child Support Guideline amount is in the best interests of the children."

"[T]he standards for measuring the fairness of a property division in the domestic relations arena and reasonably equivalent value in a fraudulent transfer case are separate and distinct." Corzin v. Fordu (In re Fordu), 201 F.3d 693, 707 (6th Cir. 1999). Courts "thus do not equate the Domestic Relations Court's approval of [a divorce agreement] with a determination by the court that the transfers made in connection with the parties' property division were supported by reasonably equivalent value." Id.

This Court concludes, as did the bankruptcy court, that there was no value attributable to Morris's "waiver" of child support. The section of the Divorce Agreement addressing child support provides nothing to suggest otherwise, offering only the most generic of reasons (i.e., "best interests of the children") for the agreement that neither party would pay child support.

This Court perceives no error in the findings or conclusion of the bankruptcy court with respect to reasonably equivalent value as it relates to child support. Accordingly, Objection No. 2 is overruled.

Objection No. 3: The Bankruptcy Court erred by finding that the agreement by Morris to assume and pay most, if not all, of the marital debt should not be considered as fair consideration, reasonably equivalent value, or to support an equitable, but unequal, division of property and debt order

Morris complains that the bankruptcy court improperly focused on only the transfer of the Real Estate without giving due consideration to all of the assets and liabilities of the parties when determining whether there was reasonably equivalent value enjoyed by both parties to the Divorce Agreement.

The bankruptcy judge noted:

(Prop. FF/CL at 16-17.)

The only element of fraudulent conveyance that Morris challenged was the element of reasonably equivalent value. As explained by the bankruptcy court, the value of any incurred marital debt is not generally considered in that calculus. In re Neal, supra. Therefore, the bankruptcy court's conclusion is not in error and nothing in Morris's objection convinces the Court otherwise. Objection No. 3 is overruled.

Objection No. 6: The Bankruptcy Court erred by denying the motion to extend time to secure a rebuttal appraisal and the motion to strike the Cerny Appraisal

Because this objection is related to Objection No. 4, the Court will take it out of order and discuss it before No. 4.9

This objection amounts to a discovery dispute. Morris had sought an extension of time to conduct discovery and to file dispositive motions. He made his motion after discovery had closed, and after three extensions had already been granted at the Trustee's request, with the approval of opposing counsel.10 The bankruptcy court determined that Morris had been provided sufficient time to conduct discovery; that he had scheduled the Trustee's deposition, voluntarily canceled it and, despite an extension, never rescheduled; and that he chose not to obtain his own appraisal prior to seeing the Trustee's appraisal, allegedly in an effort to save money but just as likely as an attempt to gain some tactical advantage by seeing his opponent's appraisal before obtaining his own. (Prop. FF/CL at 20.)

The bankruptcy court's decision to deny a fourth motion for extension of time to conduct discovery related to an issue that was germane from the outset is reviewed for abuse of discretion. In re Valley-Vulcan Mold Co. 5 F. App'x 396, 400-01 (6th Cir. 2001) (concluding that "the bankruptcy court did not abuse [its] discretion by denying [plaintiff's] motions to extend discovery and postpone trial where the [plaintiff's] behavior appeared dilatory and tactical."). This Court finds no abuse of discretion.

This objection also addresses the bankruptcy court's refusal to strike the Trustee's appraisal simply because it was delivered one day after the close of discovery. The bankruptcy court found no evidence that the Trustee acted in bad faith or that Morris was prejudiced in any way. Morris has supplied nothing in his objection to contradict the bankruptcy court's conclusion. This Court finds no abuse of discretion.

Objection No. 6 is overruled.

Objection No. 4: The Bankruptcy Court erred when it issued its finding, for summary judgment purposes, that the Depot Street property value is either $170,000, $125,000 or $100,000

The bankruptcy court noted in its factual recitation that the value of only one of the five parcels of real estate owned by Morris and Trina was disputed—the Depot Street property. Because of this factual dispute, the bankruptcy court ultimately concluded that a factfinder would be needed to make the final determination as to value. (See Prop. FF/CL at 22.) Examining the only available evidence of value, the bankruptcy court stated:

(Id. at 14.)

Morris argues in his objection that "it constitutes error for the [b]ankruptcy [c]ourt to limit the evidence that Morris is entitled to submit to support the correct value of the property and/or the contributory value provided by Morris through his expenditures and improvements since the time of the Divorce Decree." (Obj. at 76.) He asserts that, "the value of this property is unknown and must be determined at the time of trial." (Id. at 77.)

In opposition, the Trustee asserts that "there is absolutely no basis for Morris'[s] objection that the [b]ankruptcy [c]ourt's finding that one of the three (3) stated values is, and will be, correct." (Resp. at 91.) The Trustee argues that, until now, Morris has not challenged the $45,000 contributory value figure, and has, in fact, tacitly accepted it by arguing that the Trustee "ignored the $45,000 discount" and "refuses to even acknowledge the $45,000 discount imposed by her own appraiser[.]" (See Bankr. Doc. No. 44 at 16, 17.)

This Court is of the view that, since there is a factual dispute as to the value of the Depot Street property, it is for a fact-finder to determine from all the evidence that will be available what that value was at the time of the Divorce Agreement. The fact that Morris accepted as true for purposes of a summary judgment argument a discount figure of $45,000, does not irrevocably tie him to that figure, or any other, at the time of trial. He will be free, as will be the Trustee, to establish the value in the usual way — by submission of evidence to the fact-finder. Presumably, the Trustee will rely on the Cerny Appraisal and it will be up to Morris to appropriately rebut that evidence.

That said, this objection must be weighed in light of the discussion of Objection No. 6. Morris apparently made a tactical decision not to depose the Trustee and not to obtain his own appraisal of the relevant Real Estate. As a result, he has limited his own ability to submit evidence at the trial. This Court's ruling with respect to this objection does not mean Morris will be permitted to reopen discovery, including expert discovery, to produce new evidence (unless the bankruptcy judge, in his discretion, were to permit that).

Only to the extent set forth herein, Objection No. 4 is sustained.

Objection No. 5: The Bankruptcy Court erred by limiting the sale expenses to ten percent (10%) in determining the equity in the real estate

Defendant argued in opposition to the Trustee's motion for summary judgment that, if he were forced to return Trina's half interest in the real property, he could only do so by selling the property. Under Ohio law, if a sale of property is required to effectuate an equitable distribution of marital property, the court is permitted to consider the cost of sale when determining the value of the property. See Ohio Rev. Code § 3105.171(F)(7). In his opposition to the motion for summary judgment, Morris suggested that the costs could "average between 10% to 15% of the sale proceeds." (Bankr. Doc. No. 44 at 12.) For purposes of the motion, he used 10% of the Cerny Appraisal value, which would be $39,000.

The bankruptcy court stated: "[Morris] claimed a 10% reduction and Trustee does not dispute this point." (Prop. FF/CL at 13.) It then concluded: "The court finds that [Morris] is entitled to deduct one-half of the cost of sale, set at 10% of the fair market value of the real estate, from what he received under the Divorce Agreement." (Id.)

Morris objects to this finding of a 10% reduction, arguing that 10% is the figure "normally used when the sale takes place as a result of an arms-length negotiation and/or a normal real estate closing." (Obj. at 77.) "When there is an auction sale, which is more likely in a bankruptcy situation, the sale expenses are much higher and usually reach 14% to 15%." (Id.) He argues that it is error to lock in the sale expense at 10% when it remains an unknown amount. At the very least, Morris argues that this is a question of fact, requiring the testimony of witnesses.

In opposition, the Trustee argues that "Morris'[s] attack on the reasonableness of the [b]ankruptcy [c]ourt's selection of 10% contravenes his acknowledgment of the [b]ankruptcy [c]ourt's familiarity with sale costs in these types of sales and his own suggestion that 10% is within the bounds of reasonableness." (Resp. at 93.) The Trustee further asserts that "(i) the [b]ankruptcy [c]ourt's application of ten percent (10%) sale costs [should] be adopted for the purpose of fixing the judgment amount and (ii) that this Court can clarify that actual costs of sale, which may be subject to [b]ankruptcy [c]ourt approval prior to sale, must be shared equally by the parties." (Id. at 94.)

The Court agrees that Morris should be allowed to deduct a portion of the sale costs, if a sale occurs. If no sale occurs, such costs will obviously not be a factor in determining value. The Court further concludes that determining the sale costs now simply "for the purpose of fixing the judgment amount" is premature, see, e.g., Sweet v. Sweet, Nos. 2007-A-0003, 2008-A-0003, 2009 WL 1110875, at * 4 (Ohio Ct. App. Apr. 24, 2009) ("consideration of the costs of sale is only appropriate so long as those consequences are not speculative") (internal quotes and citation omitted), and it was error for the bankruptcy court to make this fact-dependent determination at the summary judgment stage, notwithstanding the bankruptcy judge's acknowledged familiarity with the issue. The Trustee's suggestion that the costs of any sale should be shared equally by the parties is probably a good one, but one that need not be adopted at this juncture. All that need be said is that, if the real property must be sold to refund its value to the bankruptcy estate, Morris will be allowed to deduct the cost of the sale in whatever amount is determined to be equitable. At this point in the proceedings, it is not a foregone conclusion that the sale costs will be 10% of the sale or of the fair market value.

As set forth herein, Objection No. 5 is sustained. As a result, the bankruptcy judge's overall calculation of the Debtor's equity must be rejected at this juncture because it incorporated the 10% value for sale costs.

Objection No. 7: The Bankruptcy Court erred by granting summary judgment in favor of Trustee on Trustee's fraudulent conveyance claims

This objection does not meet the specificity requirement of Rule 9033(d), a fact that Morris himself seems to recognize since he "incorporates by reference the applicable law and argument set forth in Objection Nos. 1 through 6 herein." (Obj. at 78.) It is merely a catch-all statement of disagreement with the bankruptcy court's ruling. This Court is not required to address such non-specific "objections."

Objection No. 7 is overruled.

Objection No. 8: The Bankruptcy Court erred by not considering and addressing the fraudulent transfer provisions specified in R.C. § 1336.05

At first blush, this also appears to be a generalized objection to the overall ruling of the bankruptcy court. Morris "incorporates by reference the applicable law and argument set forth in Objection Nos. 1 through 7." (Obj. at 80.) As such, this Court is not required to address it.

Although the objection specifically cites failure to address a fraudulent transfer claim under an Ohio statute, there are no arguments that would explain how the bankruptcy court erred. Comparison of 11 U.S.C. § 548 and Ohio Rev. Code § 1336.05 reveals that they are virtually identical with respect to the elements that need to be proven.11 Therefore, the discussion of the elements under federal law is sufficient to address the same elements under Ohio law.

In an abundance of caution, however, the Court notes Morris's assertion within this objection that "for summary judgment purposes a question of fact exists as to whether the transfers that resulted from the Divorce Decree were made with the intent to hinder, delay or defraud any person or entity that was, or became, a creditor of the Debtor." (Id. at 80.) If this is an objection at all, and if it is specific enough, it can only be read as a challenge to the bankruptcy court's determination as to the actual fraudulent transfer claim under federal law.12

The bankruptcy court stated:

(Prop. FF/CL at 17-19, footnote in original.)

Morris offers nothing other than a conclusory assertion that "questions of fact exist as to whether the transfers made as a result of the entire Divorce Decree were made without fair consideration." (Obj. at 80.) However, "fair consideration" is not the issue in an actual fraudulent transfer claim. Morris has presented no record evidence to refute the "badges of fraud" identified by the bankruptcy judge.

Objection No. 8 is overruled.

IV. CONCLUSION

Having conducted its de novo review of Morris's objections to the Memorandum of Opinion, Proposed Findings of Fact and Conclusions of Law, the objections are sustained in part and overruled in part.

The Court adopts the bankruptcy court's ultimate conclusion of law that the Trustee is entitled to summary judgment against Morris for the Debtor's portion of equity that was fraudulently transferred. The Court rejects the bankruptcy court's calculations as to the value of the equity. This matter is recommitted to the bankruptcy court for further proceedings consistent with this Memorandum Opinion and Order.

IT IS SO ORDERED.