Tuesday, April 08, 2014

Unwitting Real Estate Owners Get Roped Into Co-Owner's Bankruptcy Proceeding As Chapter 7 Trustee Seeks Court Approval For Sale Of Entire Jointly-Owned Property (As Opposed To Just Debtor's Interest)

From a recent post from Bankruptcy-RealEstate-Insights.com by attorney Vicki R. Harding, Esq.:
  • A chapter 7 debtor owned real estate jointly with three other people as tenants in common. The chapter 7 trustee sought court approval to sell the entire property, as opposed to just the debtor’s tenant in common interest.

    The debtor and his wife listed a 50% interest in real estate described as “125.8 acres rough land” in their bankruptcy schedules. The chapter 7 trustee and the debtors settled a dispute regarding claimed exemptions in the property and agreed to liquidate the non-exempt portion for the benefit of the estate.

    Section 363(h) of the Bankruptcy Code provides that if a bankruptcy estate has an undivided interest in property as a tenant in common, the trustee can sell the interests of both the estate and any co‑owner if (and only if):
(1) partition in kind of such property among the estate and such co-owners is impracticable;

(2) sale of the estate’s undivided interest in such property would realize significantly less for the estate than sale of such property free of the interests of such co‑owners;

(3) the benefit to the estate of a sale of such property free of the interests of co‑owners outweighs the detriment, if any, to such co-owners; and

(4) such property is not used in the production, transmission, or distribution, for sale, of electric energy or of natural or synthetic gas for heat, light, or power.

In this case two of the three other co‑owners consented to a sale and stipulated that the trustee was entitled to sell the entire property pursuant to Section 363(h). However, the remaining co‑owner (Simons) objected.

The trustee and Simons stipulated to various facts and agreed that “the only issue remaining under §363(h) is whether the Real Property is capable of partition or must be sold as a whole.” However, the court took issue with this characterization of the issue. In particular, it pointed out that if the trustee did not prevail, the result would not be to partition and sell the property, but rather the trustee’s request would be denied, leaving him with the right to sell the debtor’s undivided interest as a tenant in common.

The court decided that the parties had stipulated that factors 3 and 4 were met. Although their characterization of the question suggested that they were focusing only on factor 1, the court felt compelled to consider both factors 1 and 2 since it was not entirely clear what they intended.

On the issue of whether partition was “impracticable”:

[P]racticable is not a synonym for possible; nor is it a synonym for practical. Its meaning falls between the two concepts of possibility and practicality, and incorporates both ideas – something that is not only possible, but also feasible and sensible.

The trustee had the burden of proof, and his only witness clearly did not impress the court. The witness described the property as “rough, rock, and hilly land with no improvements.” According to him, the property could not be divided without affecting his estimated value. However, he gave no indication of the reduction in value nor the basis for these conclusions. (Apparently his testimony was based on a “drive-by” of the property, and he neither walked the property nor had any knowledge of the topography other than a brief view from an adjacent property and a review of an aerial map.)

In response, Simons testified as a fact witness that the property had been in her family for several generations, its only value was timber, and an old logging road evenly divided the property that would allow for a fair partition. The court determined that the trustee did not establish that partition was impracticable.

Considering the issue of whether a sale of an undivided interest would bring significantly less than a sale of the entire property, there was very little information to consider. The range of the only values available in the record led to a maximum difference of ~$6,500. The court concluded that the record did not contain proof that a sale of the tenant in common interest would bring significantly less, nor did the small change in value support a finding that partition was impracticable.

A more interesting argument was the trustee’s attempt to use a state statutory presumption of indivisibility. Although bankruptcy courts frequently look to state law to decide issues, in this case the court held that the question of whether a partition was practicable was a matter of federal and not state law.

The court further commented that it appeared the parties agreed that either the property should be sold as a whole or it should be partitioned. However, partitioning property is not an option under Section 363(h): the trustee either sells all of the interests in the property as provided in Section 363(h), or sells only the debtor’s undivided interest. Notwithstanding the desire of the parties, the court’s judgment was simply that the trustee failed to prove that the elements of Section 363(h) were met, and consequently he was not entitled to sell the property free of Simons’ interest.

The court’s decision to apply federal law to determine whether partition was practicable, while leaving the partition process to state law, could lead to a catch-22 where a trustee is not able to sell all of the co-owners’ interests based on federal law, but also is not able to partition the property under state law.

A co‑owner that is not familiar with bankruptcy would likely be surprised that the bankruptcy court can order the sale of its interests as well as the debtor’s interests. However, it is worth noting that a trustee (or debtor in possession) does not automatically have that right.

Source: Potential Sale of Jointly Owned Property: Practicable Partition Is Somewhere Between Possible and Practical.

For the court ruling, see Higgason v. Brown (In re Brown), 506 B.R. 446 (Bankr. E.D. Ky. 2014).

Monday, April 07, 2014

Court OKs NY Woman's Use Of Divorce Settlement To Buy Home From Son-In-Law, Then File Bankruptcy & Claim Homestead Exemption To Stiff Her Now-Fired Divorce Attorney Out Of $93K In Legal Fees

In Buffalo, New York, the New York Law Journal reports:
  • A Buffalo woman who used a divorce settlement to buy a condominium from her son-in-law— then filed bankruptcy allegedly to avoid paying her divorce lawyer—can use a homestead exemption to shield her assets, a Buffalo bankruptcy judge has held in a case of first impression.

    Western District Judge Michael Kaplan rebuffed HoganWillig's allegations that its former client tried concealing assets to skirt a nearly $93,000 legal bill, noting that as the client's former divorce counsel, the firm "knew every penny of her financial affairs."

    The ruling potentially puts law firms on different, and less stable, footing than other creditors.

    "She hid nothing from anyone, HoganWillig least of all," Kaplan wrote in In re Wrobel, 12-13001. "The firm's effort to argue that it should be treated as, or represents, some other unsecured creditor of the debtor—a creditor who actually might argue surprise and deception—is rejected."

    However, while Kaplan allowed Krystyna Wrobel to claim a homestead exemption, he expressed concern about the possible "insider" transaction and left a lien on the property in place. If Wrobel sells the condominium in the next three years, or her son-in-law returns the money she gave him for the property, HoganWillig may be able to assert a claim.

    The case turned on an analysis of 11 U.S.C. §522 (o) of the Bankruptcy Code, which was enacted in 2005. Under that provision, if a debtor disposes property "with the intent to hinder, delay or defraud" a creditor, the homestead exemption is reduced accordingly.

    Here, Wrobel was living in an apartment owned by her estranged husband and had retained HoganWillig to represent her in what became a lengthy divorce proceeding. At some point, Wrobel fired HoganWillig and hired a different lawyer, who settled the divorce. Wrobel became the apartment building's owner in the settlement.

    When HoganWillig learned that its former client was about to sell the building, and would net about $100,000, the firm went to state court in an unsuccessful attempt to prevent her from using the funds to buy a homestead. Wrobel in turn bought a condominium from her son-in-law; a year later, she filed for bankruptcy and claimed a homestead exemption.

    HoganWillig, which is holding a $92,377 judgment against Wrobel, accused its former client and her current lawyer of scheming to convert non-exempt assets into exempt assets in an attempt "to hinder, delay or defraud" the firm, as that phrase is contemplated in §522(o). While acknowledging the law tolerates bankruptcy exemption planning as a financial device, the firm asked the court to determine "when it is that a pig becomes a hog."

    But Wrobel's current attorneys with the firm Dennis Gaughan in Hamburg said HoganWillig is trying to "bully" a "relatively unsophisticated Polish immigrant" to extract an exorbitant fee from a client in her 60s who works part time as a $20,000-a-year hospital housekeeper. The attorney, Christopher Tyrpak, said Wrobel made no attempt to conceal assets and argued she should not be denied the homestead exemption.

    Kaplan said the dispute centers largely on how §522(o) impacts bankruptcy planning, but with several "twists and turns," agreed with Tyrpak.

    The judge said it "once was clear" that a debtor could convert non-exempt property to exempt property before filing bankruptcy. But Kaplan said that changed in the wake of a few notorious cases where wealthy debtors moved to states with unlimited homestead exemptions to keep their money away from creditors, and Congress responded with the "hinder, delay or defraud" provision.

    Kaplan said there is no Second Circuit authority on applying that provision in the framework of a bankruptcy planning, and no state law that addresses the situation that arose in the Wrobel matter. He said courts have adopted a "smell test" to determine if a debtor had engaged in an inappropriate transaction.

    Here, Kaplan said, HoganWillig's assertion that the debtor concealed assets "borders on sanctionable conduct." He said Wrobel "openly and notoriously acquired the homestead" and rejected HoganWillig's claim that her actions constituted "badges of fraud" and established that the transaction was a sham.

    "The badges of fraud bespeak 'hiding,' 'absconding,' 'avoiding, 'sharp dealing,' etc.," Kaplan wrote. "The natural question is 'Who exactly is it who was victimized by such evil actions?' Certainly not HoganWillig, and no one else is complaining."

    Tyrpak said the ruling clarifies the law in the Second Circuit.

    "I think it is significant because it provides a basis for interpreting §522(o), at least in the Second Circuit, and it adopts a significant portion of the holdings of other circuits that have already answered this question," Tyrpak said.

    Cheryl-Lane Bechakas of HoganWillig represented her firm. Steven Cohen, who runs the firm's litigation department, said HoganWillig will seek leave to appeal to the district court.

    "Judge Kaplan's decision is very, very dangerous," Cohen said. "He is making new law here. What he is saying is that a law firm is not a creditor in the same category of other creditors."

    Cohen said that if the ruling stands, law firms will be understandably reluctant to represent some clients because there would be an almost sure-fire way to cheat lawyers out of their earned fees.

    "Certainly, we went into this with our eyes open and the understanding that there were non-exempt assets we could use for our fees, and [that] encourage[d] us to sink the amount of time and effort into this case that we did," Cohen said. "What his honor has said is, 'I don't care what you and your client talked about. I don't care whether these assets are exempt. I don't care if §522(o) prohibits a debtor from hiding this money in a transaction with a son-in-law. You're a law firm so you don't get paid.' That is troubling."
Source: Judge Permits Homestead Exemption to Shield Assets.

For the court ruling, see In re Wrobel, Case No. 12-13001, (Bankr. W.D.N.Y. March 28, 2014).