MEMORANDUM OPINION

Keith L. Phillips, United States Bankruptcy Judge.

This matter comes before the Court on the motion of Defendants South Anna, Inc., and Stephanie Jeter Tumlin to dismiss the complaint (the "Complaint") filed by chapter 7 trustees Bruce H. Matson and Peter J. Barrett (collectively, the "Trustees"). For the following reasons,1 the counts of the Complaint asserting claims under the Bankruptcy Code, Counts II, III(a),2 and IV, will be dismissed for failure to state a claim upon which relief can be granted. The Court will abstain from hearing Counts I, III(b), V, and VI, the remaining counts of the Complaint, which assert claims under Virginia law.

BACKGROUND

Leah Christine McCurnin ("Mrs. McCurnin") filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code on December 29, 2015, and Peter J. Barrett was appointed to serve as trustee in her case. Shelby Farrell McCurnin ("Mr. McCurnin") filed his own voluntary chapter 7 petition for relief on January 8, 2016, and Bruce H. Matson was appointed to serve as trustee in his case.

Mr. McCurnin and Mrs. McCurnin (collectively "the Debtors") were, at all relevant times, married and together owned all of the shares of Isis, Inc. ("Isis"), which they founded in 1998.3 Mr. McCurnin served as president and CEO of Isis, and Mrs. McCurnin served as its treasurer, CFO, and secretary. Defendant Stephanie Jeter Tumlin ("Tumlin") was a manager of Isis. At all relevant times, Tumlin was the sole owner of Defendant South Anna, Inc. ("South Anna" and, together with Tumlin, "the Defendants").4

The Trustees5 initiated this adversary proceeding by filing a complaint (the "Complaint") on December 29, 2017, asserting causes of action "individually and as assignees of M & T Bank."6 The Complaint alleges that the Debtors and Tumlin devised and executed a scheme to fraudulently transfer the assets of Isis to South Anna.7 The Trustees seek to avoid the transfers and recover the assets of Isis, or the value thereof, from South Anna and Tumlin pursuant to §§ 544, 548, and 550 of the Bankruptcy Code8 and § 55-80 of the Virginia Code, Va. Code Ann. § 55-80. The Trustees also seek a declaration that South Anna is liable as the successor in interest to and alter ego of Isis. Finally, the Trustees seek to hold Tumlin liable for conspiring to fraudulently transfer the assets of Isis to South Anna.9

On January 31, 2018, the Defendants filed a motion to dismiss the Complaint pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 12(b)(1), (6),10 for lack of subject matter jurisdiction and for failure to state a claim (the "Motion"). On April 12, 2018, the Court held a hearing on the Motion.

JURISDICTION

The Court has jurisdiction pursuant to 28 U.S.C. §§ 157(a) and 1334(b) and the general order of reference of the U.S. District Court for the Eastern of Virginia dated August 15, 1984.11 Venue is appropriate in this Court pursuant to 28 U.S.C. §§ 1409.

FACTS

The Trustees allege the following facts.12 The Debtors formed Isis in 1998. Isis operated as a consulting business specializing in writing, implementing, and reselling accounting software for small to mid-sized companies in and around the Richmond, Virginia, area. The Debtors have been and remain the sole shareholders of Isis, with Mr. McCurnin owning 49 percent and Mrs. McCurnin owning 51 percent. In its first ten years, Isis experienced significant growth, with revenues of between $2.5 and $3 million per year and expansion to over 20 employees. Among other assets, Isis owned 80 to 100 computers, computer equipment, and a collection of office furniture, including desks, tables, chairs, cabinets, and cubicles.

Tumlin joined Isis in 1999 as a computer programmer, writing accounting software programs. Several years later she was promoted to manager of development. Her duties expanded to include managing Isis's team of eight to nine software developers as well as several employees of Isis's affiliate, Izida, LLC, which was located in Bulgaria.13 Tumlin became "third in command as far as managing the business" after the Debtors.14

Beginning in 2008, Isis's revenues fell and never recovered. It faced increasing collection pressure and litigation from its creditors. In October of 2014, its former landlord filed a complaint against Isis and the Debtors, as guarantors, in the Circuit Court for Henrico County, Virginia, seeking over $150,000 in unpaid rent.

In late 2014, the Debtors and Tumlin "devised a scheme to continue the business of Isis without its mounting debt."15 In January of 2015, the Debtors and Tumlin met to discuss the creation of a new business, to be owned by Tumlin, that would take over Isis's operations. Over the next several months, they created South Anna, identifying Tumlin as CEO and 100% owner of South Anna's stock. Isis's operations and employees were transferred to South Anna, which officially began operations on May 1, 2015, operating out of the same offices previously occupied by Isis. Tumlin made no capital contribution in exchange for her shares in South Anna.

Isis ceased operations in June of 2015, and its registration with the Virginia State Corporation was subsequently terminated. In August, Isis defaulted on its loan with M & T Bank, and in December, M & T Bank filed a complaint against Isis and the Debtors in the Henrico County, Virginia, Circuit Court. By order dated February 26, 2016, the circuit court granted M & T Bank judgment against Isis for $99,661.44, plus interest and late fees of $2,029, as well as attorneys' fees and costs (the "Judgment").16

South Anna solicited Isis's customers and arranged for most of them to enter into contracts with South Anna. One customer refused to execute a new contract, so South Anna continued to do work for that customer under the old Isis contract. With the former Isis employees, in their new roles as employees of South Anna, servicing the former Isis customers, South Anna became profitable immediately. From May through August, South Anna used Isis's property, including its computer equipment and furniture.17 South Anna also used Isis's servicing credentials with Microsoft to service customers until it was able to obtain its own credentials.

By October of 2015, the Debtors' personal relationship had deteriorated, and Mr. McCurnin left Isis.18 On October 14, 2015, South Anna paid Isis $25,000 for computer equipment that South Anna had been using since May of 2015. The value of the computer equipment "far exceeds the $25,000 `paid' to Isis."19

On December 29, 2015, Mrs. McCurnin filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code, and one week later Mr. McCurnin filed his own petition, completing the "final step in the scheme to continue Isis's business through South Anna [and] shed the personal guarantees [the McCurnins] had given to Isis's creditors."20 On his schedules, Mr. McCurnin listed over $480,000 of Isis's debt that he had personally guaranteed, including $145,000 for unpaid rent, $117,000 owed to M & T Bank, $50,000 owed to Microsoft, $50,000 owed to Wells Fargo Bank, and $25,000 owed to Windstream Communications. Mrs. McCurnin listed similar personal guaranty obligations in her schedules. Many of these creditors have filed proofs of claim in the Debtors' bankruptcies.

Mr. McCurnin listed his 49% interest in Isis as having a value of $147,000, from which the total value of Isis would be calculated as being close to $300,000. "South Anna `acquired' this full enterprise value for almost no consideration."21

On December 14, 2017, M & T Bank executed an "Unconditional and Absolute Assignment of Judgment" (the "Assignment") wherein it assigned any and all interest in the Judgment to the Debtors' bankruptcy estates. The Assignment purports to assign "all of M & T's right, title, and interest in and to the Judgment, including all sums of money that may be obtained by means of or as a result of the Judgment." It further provides that the assignment is "unconditional, absolute and without consideration" and grants the bankruptcy estates the power and authority to "acknowledge satisfaction or to discharge and release the Judgment."22

LEGAL STANDARDS AND POSITIONS OF THE PARTIES

Rule 12(b)(1). A motion to dismiss for lack of subject matter jurisdiction is brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.23 In addressing a defendant's facial challenge to subject matter jurisdiction, a court must accept the factual allegations of the complaint as true. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). Plaintiffs have the burden of proof in establishing jurisdiction. Demetres v. E. W. Constr., Inc., 776 F.3d 271, 272 (4th Cir. 2015).

Counts II, III(a), and IV of the Complaint are proceedings to "determine, avoid or recover fraudulent conveyances" pursuant to provisions of the Bankruptcy Code and are therefore core matters. 28 U.S.C. § 157(b)(2)(H). If the facts as alleged state a colorable claim upon which relief may be granted pursuant to §§ 544, 548 and 550 of the Bankruptcy Code, then subject matter jurisdiction exists.24

Counts I, III(b), V, and VI of the Complaint are claims brought under state law, over which the Court may exercise subject matter jurisdiction as a proceeding "related to" a case under title 11. 28 U.S.C. § 157(c). "Related to" jurisdiction may exist where the outcome of the proceeding could conceivably have an effect on the bankruptcy estates being administered.25

Rule 12(b)(6). A motion to dismiss for failure to state a claim upon which relief can be granted is brought under Rule 12(b)(6). When considering a motion under Rule 12(b)(6), the Court must accept as true the well-pleaded factual allegations in the complaint, and all reasonable inferences must be drawn in favor of the complaining party:

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)). See also Rockville Cars, LLC v. City of Rockville, 891 F.3d 141, 145 (4th Cir. 2018). Under these standards, the Court must accept the allegations of the Complaint as true; however, any count of the Complaint that fails to state a valid claim must be dismissed.

The Defendants assert that the Trustees have no authority under the Bankruptcy Code to pursue claims on behalf of non-debtor entities, in this case Isis, or a creditor of the bankruptcy estates, in this case M & T Bank.26 In essence, the Defendants challenge the standing of the Trustees. Standing must be proven by the party invoking federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Netro v. Greater Baltimore Med. Ctr., 891 F.3d 522, 525 (4th Cir. 2018).

Generally, a motion to dismiss for lack of standing is governed by Rule 12(b)(1), "because standing is a jurisdictional matter." Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007) (citations omitted). However, the Fourth Circuit has recognized the existence of "statutory standing," which is "a concept distinct from Article III and prudential standing. Statutory standing . . . focuses on whether the plaintiff is a member of the class given authority by a statute to bring suit." Wynne v. I.C. System, Inc., 124 F.Supp.3d 734, 743 (E.D. Va. 2015) (citations omitted). In CGM, LLC v. BellSouth Telecomm., Inc., 664 F.3d 46 (4th Cir. 2011), the Fourth Circuit held that "a dismissal for lack of statutory standing is effectively the same as a dismissal for failure to state a claim." Id. at 52.27

Here, the Defendants argue that the Trustees do not have standing under the Bankruptcy Code to pursue their claims. This is not a constitutional or prudential standing argument but rather an argument that the Trustees lack statutory standing, i.e., that the provisions of the Bankruptcy Code do not confer upon the Trustees the power to make the claims they assert in the Complaint. Therefore, the Motion, to the extent that it seeks dismissal for lack of statutory standing, is properly analyzed under Rule 12(b)(6) as a failure to state a claim. See Kerns v. United States, 585 F.3d at 193, in which the Fourth Circuit compared the procedural protections of Rules 12(b)(1) and 12(b)(6), and concluded that "[i]n short, when a defendant asserts that the complaint fails to allege sufficient facts to support subject matter jurisdiction, the trial court must apply a standard patterned on Rule 12(b)(6). . . ."28

Alternatively, the Defendants claim that the successor liability and alter ego counts should be dismissed pursuant to Rule 12(b)(6) because the Trustees have failed to allege any corporate affiliation or commonality of ownership between Isis and South Anna. They argue that the fraudulent transfer counts should be dismissed for failure to allege a transfer of property of the Debtors and that the business conspiracy count should be dismissed for failure to allege an independent crime or tort upon which a claim of conspiracy may be based.

Abstention. Finally, to the extent that the Trustees are allowed to proceed, the Defendants argue that the case should be litigated in state court. They urge that because the Judgment was issued by a state court, "any action to collect on that judgment should be brought in state court." The Court interprets this as a request for judicial abstention pursuant to 28 U.S.C. § 1334.

DISCUSSION

The Assignment

The Trustees maintain that they have standing to sue South Anna and Tumlin by virtue of the "unconditional" assignment of the claim of a creditor, M & T Bank. The Assignment is attached as an exhibit to the Complaint and contains the following language:

The Trustees state that "M & T could have independently pursued the same claims now advanced by the Trustees against the Defendants to satisfy the debt owed to it by the Debtors, but instead fully assigned those rights to the Trustees for the benefit of the estates as a whole."29

The Defendants argue that the Trustees have no authority under the Bankruptcy Code to pursue the claim of M & T Bank, citing Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972). In Caplin, the Supreme Court held that a bankruptcy trustee does not have standing to pursue an action against a third party that could not have been maintained by the debtor. Id. at 428, 92 S.Ct. 1678 (a trustee in bankruptcy is not entitled to "collect money not owed to the estate.").30 However, the Fourth Circuit distinguished Caplin in Logan v. JKV Real Estate Servs. (In re Bogdan), 414 F.3d 507 (4th Cir. 2005). In Bogdan, the Fourth Circuit held that a bankruptcy trustee did have standing to assert a creditor's claim against a third party when the assignment to the trustee was unconditional, because as a result of that unconditional assignment, the claim had become property of the bankruptcy estate. Id. at 512. See also Arrowsmith v. Mallory (In re Health Diagnostic Lab., Inc.), Adv. Pro. No. 16-03271-KRH, 2017 Bankr. LEXIS 2230, at *80-81 (Bankr. E.D. Va. Aug. 9, 2017) (holding that the liquidating trustee had standing to pursue unconditional assigned claims from various creditors).

M & T Bank, as a creditor of Isis, had standing under state law to pursue a claim against South Anna and Tumlin.31 By giving the Trustees the unconditional Assignment, M & T Bank relinquished its rights to the claim, and the Trustees, who now stand in place of M & T Bank, may pursue the claim for the benefit of the bankruptcy estates as if they were M & T Bank. See In re Bogdan, 414 F.3d at 511 ("By taking unconditional assignments from the creditors, the trustee, as assignee, is making his claim on behalf of Bogdan's estate, not on behalf of the mortgage lenders."). Any recovery received on account of the claim is property of the bankruptcy estates that will be distributed among their creditors. See In re Health Diagnostic Lab., Inc., 2017 Bankr. LEXIS 2230, at *79 (holding that any recovery that the trustee might receive from pursuing the assigned claims would be applied pursuant to the plan). Accordingly, the Trustees have standing to pursue the M & T Bank claim for the benefit of the two bankruptcy estates.32

Causes of action under the Bankruptcy Code

In Counts II, III(a), and IV the Trustees seek to avoid and recover the transfer of assets from Isis to South Anna pursuant to §§ 548(a)(1)(A) and (B)33 and 544(b)(1)34 of the Bankruptcy Code.35 In order to establish an avoidance action under § 548(a)(1)(A),(B) and § 544(b)(1), a plaintiff must show, in part, that there was a "transfer . . . of an interest of the debtor in property." See 11 U.S.C. §§ 548(a)(1)(A) and (B) and 544(b)(1) (emphasis added). The Trustees assert that the transfer of Isis's assets to South Anna constituted a transfer of an interest in property of the Debtors. While "transfer" is defined in § 101(54) of the Bankruptcy Code, "interest of the debtor in property" is not.36

Under § 541(a)(1) of the Bankruptcy Code, property of the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." The determination of what constitutes property of the estate is a matter of federal bankruptcy law; however, the extent of a debtor's interests in property is determined by applicable state law. See Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979)).

Under Virginia law, a corporation is a legal entity separate and distinct from its stockholders. Barnett v. Kite, 271 Va. 65, 624 S.E.2d 52, 55 (2006).37 "It is well accepted that a filing by an individual who is an owner of a corporation brings into the estate only his ownership interest and not the assets of the corporation." In re Young, 409 B.R. 508, 513 (Bankr. D. Idaho 2009); see also Cadlerock Joint Venture II L.P. v. Robbins, Civ. Action No. 3:08CV-365-S, 2009 WL 151695, at *2 (W.D. Ky. Jan. 21, 2009), Wynne v. Streetman (In re Russell), 121 B.R. 16, 17-18 (Bankr. W.D. Ark. 1990) (assets of corporation are not included in individual shareholder's bankruptcy estate); 2 Collier on Bankruptcy ¶ 101.30, [3], at 101-139 (Alan N. Resnick & Henry J. Sommer, eds., 15th ed. rev. 2009).

The Debtors in this case were Mr. McCurnin and Mrs. McCurnin, not Isis. The Debtors owned the shares of Isis, not its assets. The Complaint does not allege that either of the Debtors transferred any of their shares in Isis or any of the assets of Isis. The shares of stock in Isis are assets of the bankruptcy estates, but the assets of Isis are not, nor have they ever been, the property of the Debtors. Applying the plain language of §§ 548(a)(1) and 544(b)(1) to the facts alleged in the Complaint, there was no transfer of an interest of property of the Debtors to South Anna or Tumlin, an element required by both §§ 548(a)(1) and 544(b)(1).

Other courts have recognized that there must be a depletion of the estate in order to establish a cause of action under § 548.

Cambridge Tempositions, Inc. v. Cassis (In re Cassis), 220 B.R. 979, 983 (Bankr. N.D. Iowa 1998) (fraudulent transfer of corporation's major asset could not be avoided in bankruptcy case filed by corporation's president and chief operating officer since asset was owned by corporation and not by debtor).38 This is a corollary to § 548's requirement that property of the estate be transferred, for if no property of the estate is transferred, then the estate has not been depleted. Because the assets of Isis were not property of the bankruptcy estates, there was no depletion of the estate upon their transfer.

In failing to show a transfer of property of the Debtors, the Trustees have not established all the elements of §§ 548(a)(1) and 544(b)(1) and thus have not stated a claim upon which relief may be granted pursuant to those sections. For the same reason, the Trustees do not have statutory standing to assert causes of action under §§ 548(a)(1) and 544(b)(1) on behalf of Isis because those sections do not give bankruptcy trustees the authority to avoid transfers of property interests of nondebtors. Accordingly, Counts II, III(a), and IV must be dismissed.39

State Law Claims

Counts I, III(b), V, and VI assert causes of action under Virginia law. As the Court has already stated, these claims do not "arise under" the Bankruptcy Code, nor do they "arise in" a bankruptcy case.40 Nevertheless, because these claims may result in a recovery for the bankruptcy estates, they are related to the Debtors' bankruptcy cases. See 28 U.S.C. § 157(c)(1). Thus, the Court may exercise "related to" jurisdiction.

Whether the Court should exercise "related to" jurisdiction in this case is another question. A determination that a bankruptcy court has "related to" jurisdiction is not dispositive of whether the court should exercise jurisdiction. Hagan v. Lawyers Title Insurance Corp. (In re LandAmerica Fin. Grp., Inc.), Adv. No. 10-03168-KRH, 2011 WL 203986, at *3 (Bankr. E.D. Va. Jan. 21, 2011). Under 28 U.S.C. § 1334, the Court may abstain from hearing the surviving counts of the Complaint. That section provides, in pertinent part:

28 U.S.C. § 1334(c)(1). The dismissal of the Trustees' avoidance claims under the Bankruptcy Code leaves only state law causes of action for adjudication. The Court must decide whether in the interest of justice, or "in the interest of comity with the State court or respect for State law," it should exercise its discretion to abstain from hearing the state law claims.

A bankruptcy court has considerable discretion when deciding whether to abstain. Kepley Broscious, PLC v. Ahearn (In re Ahearn), 318 B.R. 638, 644 (Bankr. E.D. Va. 2003).41 In the past, this Court has based a decision to abstain on various equitable considerations including the following factors:

Id. (quoting Blanton v. IMN Fin. Corp., 260 B.R. 257, 265 (M.D.N.C. 2001)).42 Moreover, ". . . the Court is free to consider these factors as it deems appropriate in the full exercise of its discretion." LandAmerica, 2011 WL 203986, at *6.

Applying these factors to this case leads the Court to conclude that it should abstain. Counts I, III(b), V and VI involve purely state law claims that are more appropriately addressed by the state court. First, but for the Assignment of M & T Bank's Judgment, the Trustees would have no standing to pursue a fraudulent conveyance action. M & T Bank, if it had retained the Judgment, would have been required to pursue its claims against Isis in state court. In this instance, the Trustees should have no greater rights than M & T Bank, including in their choice of forum.43

Second, if the Trustees are successful in their action under § 55-80, avoidance of the fraudulent transactions, rather than an award of damages, is the only remedy available under Virginia law. La Bella Dona Skin Care, Inc. v. Belle Enter., LLC, 294 Va. 243, 805 S.E.2d 399 (2017).

Id. at 256, 805 S.E.2d 399. A recovery of assets fraudulently conveyed by Isis would primarily benefit the creditors of nondebtor Isis and would only indirectly benefit the creditors of the Debtors' bankruptcy estates.44

Virginia law requires payment of a corporation's creditors before assets of the corporation may be disbursed to its shareholders, who in this case are the Debtors. See Marshall v. Fredericksburg Lumber Co., 162 Va. 136, 173 S.E. 553 (1934) ("[W]here there are existing creditors of a corporation the stockholders will not be permitted, as against those creditors, to withdraw the assets of the corporation without consideration. . . . We repeat that a stockholder is not entitled to a share of the capital assets of a corporation until the debts have been paid.").45 The Virginia Supreme Court has held that when a fraudulent conveyance is set aside under Va. Code Ann. § 55-80, the recovered proceeds must be distributed to creditors ratably. Mills v. Miller Harness Co., 229 Va. 155, 326 S.E.2d 665, 667 (1985). Based on this statutory distribution scheme, the state court is empowered to protect the interests of the creditors of Isis,46 but the Trustees' duty is to maximize the assets of the bankruptcy estate in order to maximize recovery for the Debtors' creditors.47 This factor favors state court adjudication, as the interests of the corporate creditors receive priority under Virginia law.

The remaining Ahearn factors also weigh in favor of abstention. State law issues predominate over bankruptcy issues, including the Defendants' challenges to the adequacy of the Complaint's state law allegations. These issues are better addressed by the state court. See Massey Energy Co. v. W. Va. Consumers for Justice, 351 B.R. 348, 350-351 (E.D. Va. 2006) (abstaining under Section 1341(c)(1) where state law issues predominate). Having the state court finalize proceedings involving Isis will enable this Court to then properly assess the claims filed for corporate debts guaranteed by the Debtors, thereby reducing the possibility of inconsistent results. The state court's expertise in dealing with such matters should lead to a quicker resolution of the proceedings and a more economical use of judicial resources, which benefits the bankruptcy estates. Finally, comity considerations favor deferring the liquidation of a non-debtor entity to the state court.

CONCLUSION

For the reasons set forth above, the Court will grant the Defendants' Motion to dismiss Counts II, III(a), and IV of the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court will abstain from hearing Counts I, III(b), V, and VI of the Complaint pursuant to 28 U.S.C.§ 1334(c)(1), and those Counts will be dismissed.

A separate order shall be issued.