Jean K. FitzSimon, United States Bankruptcy Judge.
Before the Court are two motions (collectively the "Motions") involving the complaint
In or before December of 2004, Debtor and two New York entities known as R & R Capital LLC and FTP Capital LLC (collectively referred to hereinafter as "R & R") formed nine or ten Delaware limited liability companies (the "Entities"). Complaint ¶ 7. Merritt and R & R were co-equal owners of the Entities, having a 50% interest in each of them. Id. The Entities invested in real estate and thoroughbred horses. Id. The Debtor was appointed the managing member of the Entities. Id. Merritt Land was one of the Entities. Id. ¶ 7 n.1.
In 2003, ninety acres of land on Apple Grove Road in East and West Marlborough Townships, Chester County, Pennsylvania
From 2005 through 2008, R & R initiated six separate lawsuits in four different jurisdictions against Debtor and/or the Entities, allegedly "seeking her removal as Managing Member of the Entities and the dissolution thereof." Complaint ¶ 13. One of the lawsuits was filed by R & R against Debtor in the Chancery Court in Delaware.
On September 3, 2009, the Chancery Court issued a letter decision ("Letter Decision") ruling in R & R's favor on summary judgment and authorizing the appointment of a receiver to "wind up the business and affairs of the Entities."
2009 WL 2937101, at *2. Describing the conduct which constituted "cause" for R & R's removal of the Debtor as Manager, the Chancery Court opined:
2009 WL 2937101, at *3 (quoting R & R Capital, LLC v. Merritt, 632 F.Supp.2d 462, 479 (E.D.Pa.2009)) (emphasis added).
Shortly after issuing the Letter Decision, the Chancery Court appointed Kurt Heyman ("Heyman") as the receiver. Complaint ¶ 18. On October 2, 2009, Heyman retained Barr Realty ("Barr") to evaluate the properties which the Entities owned in order to sell them. Complaint ¶ 21. Barr concluded that, in "as is" condition, the asking price for the Apple Grove Property should be $3,200,000 and that "[s]erious offers above $2,700,000 should be considered." Id. Heyman did not prepare the Apple Grove Property for sale by doing any cleaning, maintenance or minor repairs. Id. When the Apple Grove Property did not sell, Heyman elected to have Barr sell it at a public auction. Id. ¶ 23. At the public auction on April 20, 2010, the high bid for the Apple Grove Property was
On June 21, 2010, Heyman filed a motion for contempt against the Debtor in the Chancery Court in Delaware. See Receiver's Motion for a Finding of Contempt Against Linda Merritt, Chancery Court of Delaware, Case No. 3989-CC, filed June 21, 2010. In the motion, Heyman alleged that Debtor had engaged in various actions to frustrate his ability to expeditiously and efficiently wind up the affairs of the Entities and that such actions were in violation of the Chancery Court's Orders, dated September 14, 2009, November 9, 2009 and February 25, 2010. Id.
On Friday, June 25, 2010, the Chancery Court held a contempt hearing and gave Debtor until noon on Monday, June 28, 2010, to correct her violations of its orders. See R & R Capital, LLC v. Merritt, 2010 WL 2720837 (Del.Ch. June 24, 2010) (scheduling hearing on June 25, 2010); R & R Capital, LLC v. Merritt, C.A. No. 39890CC, 2010 WL 2642656 (Del.Ch. June 28, 2010) ("Contempt Order") (holding Merritt in contempt of the Court's Orders dated September 14, 2009, November 9, 2009 and February 25, 2010). When Debtor failed to correct the violations, the Chancery Court issued an Order, dated June 28, 2010 ("Contempt Order"):
Id. ¶ 3(b).
On or about July 28, 2010, Debtor appealed the Contempt Order to the Supreme Court of Delaware. The Delaware Supreme Court dismissed the appeal on the grounds that the Contempt Order was an interlocutory order
On or about January 10, 2011, Heyman filed a receiver's motion to dismiss in the Chancery Court. Complaint ¶ 40. On February 21, 2011, the Chancery Court granted the motion. R & R Capital LLC v. Merritt, 2013 WL 1008593, at *8 (Del. Ch. March 15, 2013).
On March 23, 2011, Merritt filed an appeal from the Chancery Court's final order to the Delaware Supreme Court. Id. Debtor argued, inter alia, that the Chancery Court: (i) erred by granting summary judgment in R & R's favor and
Thereafter, Debtor filed a petition for a writ of certiorari to appeal the Delaware Supreme Court's ruling against her to the United States Supreme Court. On October 6, 2014, the Supreme Court denied Debtor's petition. See Merritt v. R & R Capital, LLC, ___ U.S. ___, 135 S.Ct. 47, 190 L.Ed.2d 52, 83 USLW 3185 (2014).
On October 20, 2011, Debtor filed a Voluntary Petition under Chapter 13 of the Bankruptcy Code. See Bankruptcy Case No. 11-18134, Docket Entry No. 1. Almost two years later, on October 21, 2013, Debtor commenced this adversary proceeding against Cheshire and MidAtlantic. Since Debtor and MidAtlantic reached a settlement of the disputes between them, Cheshire is the only remaining defendant in the proceeding.
Debtor asserts one claim against Cheshire.
On December 3, 2013, Debtor filed a motion to compel ("Motion to Compel") in her bankruptcy case seeking to have the Court issue an order compelling the Chapter 13 Standing Trustee to, inter alia: (i) substitute in, join or ratify the instant adversary proceeding as well as another adversary proceeding;
On December 13, 2013, Cheshire filed an objection to the Motion to Compel. See Bankruptcy Case No. 11-18134, Docket Entry No. 215 (Cheshire's Objection to Motion to Compel). In its objection, Cheshire alleged facts in dispute of Debtor's contention that $1.25 million for the Apple Grove Property was less than "reasonably equivalent value" and argued that, based on the facts which it alleged, the sale price received by Heyman was, as a matter of law, the "reasonably equivalent value" of the property. See id. ¶¶ 20-23; 50-55.
MidAltantic also objected to Debtor's Motion to Compel. See Bankruptcy Case No. 11-18134, Docket Entry No. 219 (MidAtlantic's Objection). MidAtlantic argued that the adversary proceedings would not benefit the estate because Debtor never owned an interest in the properties that were the subject of the avoidance actions. See id. at 2 (Debtor "does not have and never had an interest in either of the properties that are the subject of the avoidance causes of action and therefore they [] never would have been property of her bankruptcy estate.").
On December 17, 2013, a hearing was held on the Motion to Compel. Debtor, Cheshire and MidAtlantic were each represented by counsel at the hearing.
At the beginning of the hearing, Debtor's counsel presented oral argument in support of the Motion to Compel. Transcript, dated December 17, 2013 ("Tr."), at 5-6. However, after being advised by the Court that the issue of whether the Trustee unjustifiably refused to bring the avoidance actions at issue was "largely a factual one," Debtor's counsel opted to call the Chapter 13 Trustee as a witness. Id. at 6-12. The Trustee testified that, in October of 2013, he received an email from Debtor's counsel along with two draft adversary complaints which listed the Trustee
Tr. at 15-16.
The Trustee also testified that, despite Debtor's view of the litigation, he recognized that there are always two sides to every story. Id at 17. He further explained that he realized that the litigation was going to involve a fight and that there was "just no way that [he] as the plaintiff could get involved in that fight." Id.
Thereafter, Debtor's counsel asked the Trustee whether, having had more time since October to review the draft adversary complaints and based on the appraisals showing that the properties at issue were worth "millions of dollars more than what the properties were sold for," he thought there was a basis for "proceeding under the fraudulent conveyance theory." Id. at 17-18. The Trustee answered "no" and then explained his answer, stating:
Id. at 18-20.
Other than Debtor, no parties sought to examine the Trustee and no other witnesses were called to testify. Id at 23. No evidence, whatsoever, was presented on the issue of whether the outcome of the adversary proceeding, if prosecuted by the Trustee in his name or by the Debtor in the event she was granted derivative standing, would confer a benefit on the estate.
With the evidentiary record closed, the Court provided each party with the opportunity to present oral argument.
On April 2, 2014, Cheshire filed its motion to dismiss Debtor's Complaint in this adversary proceeding. On May 12, 2014, Debtor filed her response to the motion to dismiss.
Cheshire moves to dismiss the Complaint on two grounds. Pursuant to Fed. R. Civ. P. 12(b)(1), Cheshire challenges the Debtor's standing to assert a claim against it under Bankruptcy Code § 548(a)(1)(B). Pursuant to Fed. R. Civ. P. 12(b)(6), Cheshire argues that the Debtor's Complaint fails to state a claim upon which relief can be granted.
Debtor moves for leave to file an amended complaint ("Amended Complaint") which would add a derivative claim against Cheshire for breach of fiduciary duty and dissipation of assets based on the Debtor's standing as a member and creditor of the Entities. See Docket Entry No. 73 (Amended Complaint). Cheshire objects to the Debtor's motion on the ground that granting leave to amend would be futile because the Debtor "does not have direct or derivative standing to pursue this adversary action[.]" Objection of Cheshire Land Preservation Fund to Motion for Leave to Amend the Adversary Complaint at ¶ 12.
A motion to dismiss for lack of standing is "properly brought under Rule
A motion brought pursuant to Rule 12(b)(1) "may present either a facial or a factual challenge to the court's subject matter jurisdiction." O'Neill v. Cook, 828 F.Supp.2d 731, 735 (D.Del.2011). In either situation, "the plaintiff bears the burden of proving subject matter jurisdiction." Soft Pretzel Franchise Systems, Inc. v. Taralli, Inc., 2013 WL 4774086, at *2 (E.D.Pa. September 6, 2013). Explaining the difference between a facial and a factual attack on subject matter jurisdiction, the district court in O'Neill v. Cook, supra, stated:
828 F.Supp.2d at 735.
Generally, when a party challenges a court's subject matter jurisdiction before filing an answer to the complaint as Cheshire did here, its challenge is viewed as a facial attack on jurisdiction. Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 358-59 (3d Cir.2014). However, before Cheshire filed its Motion to Dismiss, Debtor filed her Motion to Compel. Cheshire and MidAtlantic filed their Objections. The Objections disputed Debtor's assertions that (i) the proposed adversary proceedings, if successful, would benefit the estate; and (ii) the sale price which Cheshire paid for the Apple Grove Property was less than reasonably equivalent value. Thereafter, the Court held the evidentiary hearing at which Debtor was
Importantly, the Court informed the parties at the hearing on their Motions that, in ruling on them, the Court intended to rely upon the Motion to Compel, Cheshire's Objection thereto and the transcript from the hearing on the Motion to Compel. Recording of Hearing on December 9, 2014, at 2:32-2:36 p.m.
Cheshire contends that this Court lacks subject matter jurisdiction over the claim asserted against it in Debtor's Complaint because Debtor, as a Chapter 13 debtor, lacks standing to assert a claim under § 548 of the Code.
In Geiger v. Federal Home Loan Mortgage Corp. (In re Weyandt), 544 Fed. Appx. 107 (3d Cir.2013),
In the instant case, the Court ruled at the close of the hearing on Debtor's Motion to Compel that the Debtor failed to show that the Trustee violated his fiduciary duty by refusing to bring the avoidance actions in his name. Given the importance of this issue to the Debtor, the Court opted to re-assess its ruling,
At the hearing on the Debtor's Motion to Compel, the Trustee identified and thoroughly explained his reasons for refusing to bring the avoidance actions which the Debtor requested him to file. Among the reasons which the Trustee gave for refusing to bring the actions are the following:
The Trustee's reasons for refusing to bring the avoidance claims in his name are sound.
Indeed, it was Debtor and her counsel who acted unreasonably in waiting until nearly two years after the Debtor commenced her bankruptcy case to provide the Trustee with the draft complaints and ask him to acquiesce in bringing them in his name before the applicable two year time limitation expired.
Lastly, the Trustee's viewpoint that the avoidance claims would be unsuccessful because the price at which Heyman sold the real properties at issue, including the Apple Grove Property, would be held to satisfy the "reasonably equivalent value" provision in § 548(a)(1)(b)(i) based on BFP v. Resolution Trust Corp., 511 U.S. 531, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994), was a tenable conclusion. Heyman sold the Apple Grove Property to Cheshire for $150,000 more than the highest bid that was received at the public auction on April 20, 2010. Moreover, the Chancery Court impliedly approved the sale of the Apple Grove Property for $1.25 million when it granted Heyman's motion to dismiss.
In sum, the Court concludes that the Trustee's reasons for refusing to bring the avoidance actions in his name were well-founded and, therefore, that the Trustee justifiably refused to bring the avoidance actions in his name. Consequently, Debtor has failed to show that a grant of derivative standing would be appropriate under the circumstances of the instant matter.
A motion to dismiss pursuant to Rule 12(b)(6) "tests the legal sufficiency" of a claim. Glenn v. DelBalso, 2014 WL 2720885, at *1 (M.D.Pa. June 13, 2014). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In ruling on a Rule 12(b)(6) motion, a court "generally consider[s] only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir.2014) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993)).
In Santiago v. Warminster Township, 629 F.3d 121 (3d Cir.2010), the Third Circuit articulated the following three step approach for determining the sufficiency of a complaint:
Id. at 130 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 & 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (footnote omitted). The Third Circuit more recently applied this three step approach in Connelly v. Steel Valley School District, 706 F.3d 209 (3d Cir.2013).
The elements of a claim under § 548(a)(1)(B) are the following: (1) the debtor had an interest in the property; (2) the interest was transferred within two years of the filing of the bankruptcy petition; (3) the debtor was insolvent at the time of the transfer or became insolvent as a result thereof; and (4) the debtor received less than equivalent value in exchange for such transfer. See In re Gutpelet, 137 F.3d 748, 751 (3d Cir.1998). The factual allegations in Debtor's Complaint do not establish that Debtor ever owned the Apple Grove Property. Rather, the allegations show that Debtor owned an interest in the entity, namely Merritt Land which owned the property. See Complaint ¶¶ 14, 28, 60. While Debtor may have been a member of Merritt Land when the Apple Grove Property was sold to Cheshire, she did not own any interest in Merritt Land's assets or property. See 6 Del. C. § 18-701 ("A limited liability company interest is personal property. A member has no interest in specific limited liability company property."). Because Debtor has not alleged that she had an interest in the Apple Grove Property when it was transferred to Cheshire, her Complaint fails to state a claim upon which relief can be granted.
The decision whether to grant a motion to amend is within the sound discretion of the court. Cardone Industries, Inc. v. Honeywell International Inc., 2014 WL 3389112, at *4 (E.D.Pa. July 11, 2014) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971)). Motions to amend pleadings "should be liberally granted." Long v. Wilson, 393 F.3d 390, 400 (3d Cir.2004). However, leave to amend a complaint should be denied when the amendment would be futile. Johnson v. Predator Trucking, LLC, 2014 WL 582279, at *2 (M.D.Pa. February 14, 2014).
Debtor's Amended Complaint differs from her original Complaint in that it contains an additional count. In Count V, Debtor purports to allege a derivative claim, as a member and creditor of Merritt Land, for breach of fiduciary duty and dissipation of assets against Cheshire. See Amended Complaint ¶¶ 74-86.
Cheshire argues that Debtor cannot assert a derivative claim as a member of Merritt Land because, in the Contempt Order, the Chancery Court removed her as a member of the Entities. Contempt Order ¶ 3(b). Cheshire asserts that, under Delaware law, only a current and continuous member of a limited liability company has standing to assert a derivative claim on its behalf. See Sur-Reply of Cheshire Land Preservation Fund to Debtor's Memorandum of Law (1) in Support of Plaintiff's Motion for Leave to Amend Adversary Complaint and (2) in Support of Plaintiff's Objection to Cheshire's Motion
Debtor acknowledges that Cheshire correctly cites Delaware law but argues that, if the Chancery Court's "extinguishment of her 50% ownership interest in the Entities is itself an avoidable transfer under Section 548, then [she] has contemporaneous and continuous ownership, and satisfies the requirements for derivative standing under Delaware law." Debtor's Memorandum of Law (1) in Support of Plaintiff's Motion for Leave to Amend Adversary Complaint and (2) in Support of Plaintiff's Objection to Cheshire's Motion to Dismiss Adversary Complaint With Prejudice at 16-17. Debtor's position is unpersuasive.
First, Debtor has not alleged in the Amended Complaint that the Contempt Order is an avoidable transfer under § 548 and no request has been made for the avoidance of the Contempt Order pursuant to § 548. Moreover, even if the Debtor had included specific allegations regarding the Contempt Order in the Amended Complaint and included a claim in it specifically seeking to avoid the Chancery Court's extinguishment of her interest in the Entities pursuant to § 548(a)(1)(B), the claim would be futile for the same reason that her § 548(a)(1)(B) claim in the original Complaint is being dismissed. Even if it was permissible in the Third Circuit for a Chapter 13 debtor to assert a derivative claim under § 548, Debtor has not established grounds in the instant case for being permitted to do so.
Similarly, Debtor cannot pursue her claim in Count V as a creditor of Merritt Land. First, she is not currently a creditor of Merritt Land. The Chancery Court's Contempt Order decreed that Debtor is not entitled to any distribution from the dissolution and winding up of Merritt Land. Second, creditors of an insolvent Delaware limited liability company do not have standing to assert a derivative action on the limited liability company's behalf. See CML V, LLC v. Bax, 28 A.3d 1037, 1040-41 (Del.2011) (creditors of an insolvent LLC lack standing to bring a derivative action on the LLC's behalf).
Accordingly, the Court shall utilize its discretion and deny Debtor's motion for leave to amend the Complaint since Debtor's amendment of the Complaint would be futile.
For the reasons set forth above, Cheshire's motion to dismiss shall be granted. Moreover, since it would be futile to allow Debtor to amend the Complaint, Debtor's motion for leave to amend shall be denied.
An Order consistent with this Opinion shall be issued.
Complaint ¶ 13. The footnote to this paragraph states;
Complaint ¶ 13 n.2.
Tr. at 41-42.
Notably, at the hearing on the Motions, Debtor's counsel argued that, in the event the Court concluded that the issue of whether the adversary proceeding would benefit the estate was a critical factor in its decisions herein, the Court should hold an evidentiary hearing on that issue because it was a disputed issue of fact. The Court agreed. However, a review of the transcript from the hearing on the Motion to Compel shows that Debtor had an opportunity to present evidence on the factual issue and failed to do so.
In addition, Cheshire argues that the Court lacks subject matter jurisdiction because Debtor's claim against it is barred by the Rooker-Feldman doctrine. However, if Debtor had derivative standing and could properly assert a claim under § 548, Debtor may well be correct that the Rooker-Feldman doctrine would not bar her claim. There is considerable authority holding that the Rooker-Feldman doctrine is inapplicable when a federal statute specifically authorizes a lower federal court to set aside a state court judgment. See Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 871 (9th Cir.2005) (observing that, "[i]n the exercise of federal bankruptcy power, bankruptcy courts may avoid state judgments in core bankruptcy proceedings" such as proceedings based on § 548); Smith v. SIPI, LLC, 526 B.R. 737, 740-43 (N.D.Ill.2014) (affirming bankruptcy court's ruling that debtors' claim under § 548 to invalidate the transfer of property that resulted from a state court tax foreclosure proceeding was not barred by the Rooker-Feldman doctrine because the debtors were not arguing that the state court applied state tax foreclosure law improperly but, rather, that the transfer could be invalidated under the Federal Bankruptcy Code); Anderson v. Wade Cordell (In re Infinity Business Group, Inc.), 497 B.R. 495, 500-501 (Bankr.D.S.C.2013) (ruling that Rooker Feldman doctrine did not bar Chapter 7 trustee's fraudulent transfer and preference causes of action, even though a determination by the bankruptcy court might contradict State court judgment and state court ruling on Rule 60(b) motion, because the causes of action asserted independent bases for relief expressly provided for in the Bankruptcy Code); In re Miller, 2009 WL 3398716, at *4 (Bankr.D.Mass. October 16, 2009) (concluding that the Rooker-Feldman doctrine was inapplicable to debtor's adversary proceeding because she was not claiming that the state court judgment was incorrect but, rather, that the state court judgment was avoidable under Bankruptcy Code § 548); Funches v. Household Finance Consumer Discount Company (In re Funches), 381 B.R. 471, 483-85 (Bankr.E.D.Pa.2008) (concluding that Rooker-Feldman doctrine was inapplicable to the debtor's adversary proceeding because she was not seeking to have the bankruptcy court review the merit of the state court verdict but was, rather, seeking to have the verdict avoided); see also Iannini v. Deutsche Bank National Trust Company (In re Iannini), 2010 WL 2104244, at *6-9 (W.D.Pa. May 24, 2010) (emphasis added) (rejecting the debtor's argument that the Rooker-Feldman doctrine did not apply to her claims since they were "brought under specific provisions of the Bankruptcy Code, namely § 544 and § 548" on the ground that the debtor's claims were not properly raised under the Bankruptcy Code); but see 824 South East Boulevard Realty, Inc. v. Christopher Ryan (In re 824 South East Blvd. Realty, Inc.), 2012 WL 3561981, at * 5 (Bankr.S.D.N.Y. August 17, 2012) (quoting Hoblock v. Albany County Board of Elections, 422 F.3d 77, 86-87 (2d Cir.2005)) ("Even though Bankruptcy Code § 548 is an independent federal cause of action by which a debtor can avoid fraudulent transactions, not dependent on State Law, `Rooker-Feldman bars a federal claim, whether or not raised in state court, that asserts injury based on a state judgment and seeks review and reversal of that judgment[.]'").
The three cases to which Cheshire cites as support for its proposition that "[t]he Rooker Feldman doctrine precludes this Court from reviewing the merits of the Contempt Order and sanctions imposed thereunder," see Reply of Cheshire Land Preservation Fund to Debtor's Objection to Cheshire Land Preservation Fund's Motion to Dismiss the Adversary Complaint with Prejudice ¶ 28 (listing three cases), do not address whether the Rooker-Feldman doctrine prevents bankruptcy courts from avoiding state court rulings under § 548. See Chaney v. Grigg (In re Grigg), 2013 WL 5771870 (Bankr.W.D.Pa. Oct. 23, 2013) (no discussion of § 548; rather, the court addressed the issue of whether the Rooker-Feldan doctrine barred the bankruptcy court from vacating a state court's postpetition sentencing order arising from a prepetition contempt finding when the state court had addressed the issue of the applicability of the automatic stay before holding the sentencing hearing); In re Bunting, 2011 Bankr.LEXIS 5548, at *24-25 (Bankr.E.D.Mich. Sept. 29, 2011) (no discussion of whether sanctions that are issued by a state court can be avoided pursuant to § 548); Jonas v. Jonas (In re Jonas), 2010 WL 3245517 (Bankr.D.Mont. Aug. 12, 2010) (bankruptcy court dismissed three claims in the plaintiff's complaint but did not dismiss the claim for avoidance of a judgment lien which had been imposed on the debtor's property as a sanction for debtor's contempt of court). Accordingly, these three cases do no support Cheshire's argument that the Rooker-Feldman doctrine bars Debtor's § 548 claim against it.
In a memorandum of law which Debtor filed on the day before the Court's hearing on the Motions, Debtor argued that the law of the case doctrine is inapplicable here and that the Court should reconsider its previous ruling which denied Debtor's request for derivative standing to bring this adversary proceeding because Merritt's Fourth Amended Chapter 13 Plan specifically stated that the Debtor had filed the Complaint. As the Court pointed out to Debtor's counsel at the hearing on the Motions, the Chapter 13 Plan's reference to the instant adversary proceeding did not have the magical effect of granting the Debtor derivative standing to bring it. Recording of Hearing on December 9, 2015, at 2:35 p.m.
