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Unpublished Opinions

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Judge Joseph G. Rosania, Jr. (JGR)

In re Vialpando, Case No. 20-11403 JGR Order entered September 22, 2020 (confirmation of Chapter 13 plan funded solely by third-party contributions) 09/22/2020

A Chapter 13 debtor and her non-filing spouse had jointly purchased a condominium property outright at a foreclosure sale in 2012. However, they had struggled to make HOA payments since 2013, amassing an arrearage in excess of $20,000, and to pay real property taxes on the property since 2018.

In 2019, the debtor’s husband filed a Chapter 13 case to halt a foreclosure action by the HOA. The husband was unable to obtain a confirmed plan due to his failure to file and pay state and federal income taxes, and his case was ultimately dismissed for failure to make plan payments. The husband later testified that his plan payments were “too expensive.”

Three days after the closure of her husband’s Chapter 13 case, the debtor filed this case to halt a second foreclosure action by the HOA. The debtor’s second amended Chapter 13 plan proposed to cure the arrearage owed to the HOA over 44 months, and to pay 100% of her nominal unsecured debt over 60 months. The debtor, who was a student, had long-suffered medical problems which prevented her from attending school or working during the COVID-19 pandemic. Accordingly, the sole source of income to fund the debtor’s plan was “income from husband.”

The HOA objected to confirmation of the debtor’s plan, arguing that the plan was not feasible, the plan was not proposed in good faith, and the HOA was not adequately protected by a plan which proposed to cure the HOA’s arrearage in 4 years. The HOA also moved for relief from the automatic stay and the co-debtor stay.

The Court held an evidentiary hearing on the matters wherein the evidence showed that property taxes were owed for 2019; property taxes for the second half of 2018 had been sold at tax sale and not yet redeemed; the debtor’s husband had shielded her from problems relating to the HOA and his Chapter 13 case to avoid upsetting her while she was ill; the couple’s finances were “beyond tight” due to the debtor’s ongoing medical bills; the couple had been experiencing martial problems and only lived together part time; and the couple had been unable to obtain homeowner’s insurance on the property for several years due to unrepaired flood damage to the interior walls.

The debtor’s husband testified that he owned his own business, and that his current income was from landscaping and labor work. He did not specify the amount of his income or provide any documentation of its source or amount. Nor did he provide evidence of his current expenses. The husband also did not provide any documentation to establish that he had filed his outstanding income tax returns or paid any of the outstanding federal and state income taxes.

The threshold issue was whether the plan was feasible. Relying, in part, on In re Khan, No. 14-13514 MER, 2015 WL 739854 (Bankr. D. Colo. Feb. 19, 2015), the Court found that the totality of the circumstances demonstrated that the plan was not feasible. Because the Court found that the plan was not feasible, it did not need to reach the issue of good faith.

The Court denied confirmation, dismissed the case, and granted both requests for stay relief, but the Court stayed the dismissal and stay relief orders for 30 days to allow the debtor and her husband time to file a motion to sell the property.

Atna Liquidating Trust, v. AFCO Premium Credit, LLC, Adversary Proceeding No. 17-01558-JGR (Avoidance of alleged fraudulent transfers under 11 U.S.C. § 544(b) and applicable state fraudulent transfer law 07/10/2020

Atna Liquidating Trust, v. AFCO Premium Credit, LLC, Adversary Proceeding No. 17-01558-JGR (Avoidance of alleged fraudulent transfers under 11 U.S.C. § 544(b) and applicable state fraudulent transfer law; avoidance of constructive fraudulent transfers under 11 U.S.C.  § 548(a)(1)(b); and unjust enrichment.)

Atna Resources, Inc. and six related companies filed for relief under Chapter 11 of the Bankruptcy Code.  Before and at the time of the filings, only two of the related companies were operational and generated revenue, Briggs operating the Briggs mine, and Atna  operating the Pinson mine.  The affiliated Debtors utilized a centralized cash account (“CCA”) maintained by Canyon Resources Corporation (“Canyon”), headquartered in Golden, Colorado.

The Debtors’ Joint Chapter 11 Plan of Reorganization was confirmed on November 29, 2016. The Plan provided for the formation of a Liquidating Trust for the purposes of administering the assets transferred to the Liquidating Trust, resolving disputed claims, pursuing the retained causes of action, and making distributions to the beneficiaries provided for under the plan.  By its simplest terms, assets belonging to each respective Debtor estate were to be transferred to the Liquidating Trust, then disbursed to the creditors of the same respective Debtor estate.

The Trustee’s Amended Complaint seeks to avoid the payments made to AFCO Premium Credit, LLC (“AFCO”) by Canyon as constructively fraudulent.  AFCO entered into a series of insurance premium financing agreements with the affiliated Debtors’ Canadian parent company, Atna Resources, Ltd. (“Atna”) to finance insurance covering the related companies.

The theory being advanced was the comprehensive insurance covered all the affiliated companies, while only Pinson and Briggs were generating revenues to fund the CCA.  Funds in the CCA paid to AFCO that did not directly benefit Pinson or Briggs could be recovered as constructively fraudulent.

In a prior related Adversary Proceeding, Atna Liquidating Trust v. Elwood Staffing Services, Inc. (“ESS”), Adv. Proc. No. 17-01160-JGR, this Court entered proposed findings of fact and conclusions of law determining that similar fraudulent transfer claims asserted by the Trustee were barred by controlling Tenth Circuit precedent set forth in In re Slack-Horner Foundries Co., 971 F.2d 577 (10th Cir. 1992), which requires the Trustee to avoid an initial transfer before the Trustee can recover from a subsequent transferee, and that the fraudulent transfers were not adequately reserved by the terms of the Plan.

United States District Court Judge Robert E. Blackburn approved and adopted the analysis and conclusions of the bankruptcy court and remanded the matter for resolution of remaining preference claims asserted by the Trustee against ESS.

Prior to resolution of the remaining claims, the Trustee voluntarily dismissed the ESS Adversary Proceeding.

Based on the ESS ruling, AFCO moved for summary judgment.  The Trustee countered by arguing that because the ESS Adversary Proceeding was dismissed, it had no preclusive effect.

The Court entered an Order Dismissing Adversary Proceeding applying the law of the case doctrine.

The conclusion that the Trustee lacked standing to pursue the constructive fraudulent claims was reached by examining the Joint Chapter 11 Plan in the Chapter 11 bankruptcy cases and determining the avoidance claims premised on state and federal constructive fraudulent transfer laws arising out of the CCA were not adequately reserved.  That conclusion applies to all causes of action brought by the Trustee on behalf of the beneficiaries of the Liquidating Trust and prevents inconsistency and reconsideration of matters previously decided in the case.  The three alternate grounds to depart from the application of the doctrine do not apply here: (1) there is no new evidence that is substantially different; (2) controlling authority has not changed; and (3) the conclusions of law proposed by this Court and adopted by the District Court in ESS Adversary Proceeding are not clearly erroneous and do not work a manifest injustice. 

Najera Chacon v. Hernandez, Adversary Proceeding No. 18-01318-JGR Order entered April 29, 2020 (exception to discharge under 11 U.S.C. §523(a)(4) and (a)(6)) 04/29/2020

Plaintiff and Debtor/Defendant had been involved in a romantic relationship.  Using funds received from the sale of the Debtor’s home in California, Plaintiff purchased a home in Denver.  Title to the home was held solely in the Plaintiff’s name.  The Debtor and her daughter relocated to Colorado sometime after the home was purchased and moved into the home.  Although Plaintiff and Debtor lived together, they never married.

An altercation occurred at the home which resulted in a criminal complaint for assault and disturbing the peace and the issuance of a protective order preventing Plaintiff from contacting the Debtor or her daughter.

As the criminal case advanced to trial, Plaintiff demanded the Debtor drop the criminal charges, enter into a settlement agreement providing for the sale of the home and division of the sale proceeds, and for a division of personal property. If she refused, Plaintiff threatened to sell the home and retain all the proceeds.

The settlement agreement provided certain personal property be retained by Plaintiff: Specifically, a Rolex watch, a Bulova watch, a gold medallion, a gold chain, and two rings (collectively, “jewelry”). 

The Debtor received $100,000 from the sale of the home pursuant to the terms of the settlement but Plaintiff claimed she wrongfully withheld the jewelry.  Plaintiff filed a replevin complaint in county court seeking return of two watches, a Bulova and a Rolex.  After an evidentiary hearing at which the Debtor, who does not speak English, was not represented by counsel, a money judgment of $15,000 was entered against the Debtor who later sought bankruptcy relief.

Plaintiff’s Complaint sought to except the judgment obtained in county court from discharge under the provisions of 11 U.S.C. § 523(a)(4) or, alternatively, (a)(6).

The evidence received at trial consisted primarily of conflicting testimony of the Plaintiff and a corroborating witness, and the testimony of the Debtor.  The Court found the Debtor’s testimony to be more credible, by a wide margin.

The Court questioned whether the settlement agreement was enforceable as a product of duress, but determined it was precluded from revisiting the issue as the obligation had been reduced to judgment.

The Court rejected the Plaintiff’s contention that the prior romantic relationship created a fiduciary duty within the meaning 11 U.S.C. § 523(a)(4).  The Court held the Plaintiff failed to establish by a preponderance of the evidence that the Debtor committed larceny or embezzlement, and further held Plaintiff failed to prove his claim that the Debtor committed any act of willful and malicious injury to his property under 11 U.S.C. § 523(a)(6).

 

Westmountain Gold, Inc., Case No. 17-11527 JGR Order entered April 7, 2020 (commencement of distribution and substantial consummation under 11 U.S.C. § 1101(2)) 04/07/2020

Debtors in jointly administered Chapter 11 cases moved the Court for entry of final decrees and closure of their cases. Schedule C to their Chapter 11 Final Reports and Applications for Final Decree reflected that payments completed under their confirmed Chapter 11 plan were as follows: Total administrative payments/fees and taxes - $222,436.11; and Total priority payments - $210,000. The debtors’ largest unsecured creditor objected, arguing that the cases had not been fully administered or substantially consummated because no payments had been made to secured or unsecured creditors.

The Court held a preliminary hearing on the applications and the objection and heard argument of the parties. The debtors argued that the cases should be closed for three reasons: (i) the plan provided for it; (ii) to minimize payment of United States Trustee fees; and (iii) to escape the stigma of bankruptcy. The confirmed plan provided that “[t]he Debtors will request entry of a final decree closing the case on or before the later of the date all Claim objections and any pending litigation is concluded or 180 days after the Effective Date of the Plan.”

The Court noted that, in the context of Chapter 11 reorganizations, courts have determined that a case has been “fully administered” when it has been “substantially consummated” under 11 U.S.C. § 1101(2). It was undisputed that under the facts of the cases before the Court, the first two elements of “substantial consummation” under 11 U.S.C. § 1101(2) had been satisfied. What remained at issue was whether distributions had “commenced” under the plan pursuant to 11 U.S.C. § 1101(2)(C).

The Court acknowledged the split of authority regarding the “commencement of distributions” element of the substantial consummation analysis and noted that the Tenth Circuit had adopted the majority view in the case of In re Centrix Fin., LLC, 394 F. App’x 485 (10th Cir. 2010). The Court cited to Judge Romero’s summary of the Tenth Circuit’s position on “commencement of distribution” in the case of In re W. Capital Partners LLC, No. 13-15760 MER, 2015 WL 400536 (Bankr. D. Colo. Jan. 28, 2015). Judge Romero explained: “in the Tenth Circuit, ‘commencement of distribution’ for the purposes of § 1101(2)(C) is satisfied when the reorganized debtor begins distributions under the confirmed plan. The Tenth Circuit’s position also disposes of [movant’s] contention [that] this Court should follow the minority position explained in In re Dean Hardwoods, Inc that ‘commencement should mean not just the beginning of payments to a single creditor, but the commencement of distribution to all or substantially all creditors.’”

The Court noted that the creditor had effectively argued the minority position by arguing that the plan had not been substantially consummated because no payments had been made to secured or unsecured creditors. The Court also noted that it was undisputed that distributions had been made to both administrative and priority claimants under the plan. Thus, the Court found that under the Tenth Circuit’s definition of “commencement of distribution,” 11 U.S.C. § 1101(2)(C) had been satisfied. The Court further found that, because the parties agreed that the remaining elements of the substantial consummation analysis under 11 U.S.C. § 1101(2) had been satisfied, the plan had been substantially consummated.

The Court acknowledged that, at the evidentiary hearing on plan confirmation, it had agreed to retain jurisdiction over the “execution and delivery” of a certain participation agreement by stipulation of the parties. The Court ordered the debtors to correct, file, and serve a finalized, fully executed, and complete copy of the participation agreement. The Court found that after the debtors complied with the Court’s order regarding the participation agreement, the plan having been substantially consummated, the cases would be fully administered. Accordingly, it would be appropriate for final decrees to enter and the cases to close.

In re Sheahan, Case No. 18-16991-JGR Order entered December 13, 2019 (objection to application for compensation – counsel for trustee) 12/12/2019

Debtors filed for relief under Chapter 7 of the Bankruptcy Code.  At the time of filing they were the sole shareholders and officers and directors of a Colorado corporation.  The Debtors listed on their schedule of assets a wage claim against the company and claim for monies loaned to the company.

The Chapter 7 Trustee hired counsel and filed an action against the company in state court.  The complaint was properly served on Mrs. Sheahan, the registered agent for the company, but no answer was filed.  Thereafter the Trustee obtained a default judgment against the company in the amount of $117,587.75, issued a Writ of Garnishment against the company’s bank, and recovered funds held in the company’s account in the amount of $28,875.34.

The Debtors objected to a fee application filed by Trustee’s counsel.  The objection did not contest the reasonableness of the compensation but argued the funds held by the Trustee were wrongfully obtained.

The Objection was overruled.  First, the Court held the objection was barred by the Rooker-Feldman Doctrine.  The Debtors, as officers and directors of the company, could have defended the Trustee’s lawsuit and made their state law arguments as to the alleged impropriety of the Trustee’s actions in state court, but did not.  They cannot later advance those theories in Bankruptcy Court to undo the state court judgment.

Second, the Court rejected the Debtors’ characterization of the garnishment as “de facto distribution” to the Trustee as a shareholder prohibited by Colorado law.  The Trustee never was, and never became, an officer or director of the company.  Under Colorado law, a shareholder, as an owner, does not owe a fiduciary duty to creditors.  The fiduciary duty is imposed upon the officers and directors, who are empowered by state law to run the day-to-day operations of the entity and make the business decisions.  The Trustee commenced litigation against the company to collect a debt in his capacity of a creditor.  The Debtors remained the officers and directors of the company and retained the authority to defend the lawsuit.  

Finally, because the bankruptcy estate is insolvent, the Court found the Debtors lacked standing to object to the fee application.

In re Charles Samuel Vinson and Renee Ann Vinson, Case No. 19-10544 JGR Order entered December 5, 2019 (reasonable attorney’s fees for purposes of determining secured claim subject to objection) 12/05/2019
Over the span of ten years, the debtors owned two parcels of real property which secured three notes held by the bank. During that time, the debtors and the bank engaged in various legal proceedings as a result of the debtors’ inability to make payments on the notes. After a short sale of one of the properties and the payoff of another of the notes through a cured foreclosure action, all that remained was one note secured by a first deed of trust in the debtors’ principal residence, from which the debtors also operated their businesses. The note provided that the bank was entitled to reasonable attorney’s fees incurred to protect its security interest in the property. 
 
The debtors filed this Chapter 13 case approximately one year after they received a discharge under Chapter 7 (i.e., a “Chapter 20” case). The bank filed a proof of claim asserting a cure amount of approximately $120,000, of which about $60,000 was for pre- and post-petition attorney’s fees and expenses that the bank allegedly incurred in enforcing the note at issue, and another $60,000 was for default interest, late fees, escrow advances, and other allowable expenses. The debtors objected to the bank’s claim, arguing that the $60,000 attributable to the bank’s attorney’s fees was unreasonable. The bank objected to confirmation and requested dismissal of the case under the Flygare/Pioneer Bank factors. 
 
The Court held an evidentiary hearing on the objections to the bank’s claim and confirmation. The Court received documentary evidence and testimony which established that the bank incurred attorney’s fees for the following: the debtors’ Chapter 13 case and discovery conducted in connection therewith; the debtors’ Chapter 7 case; and four foreclosure actions on the various notes secured by the property, of which three were cured by the debtors and the fourth was contested by the debtors on the basis of the amount of the bank’s attorney’s fees. 
 
The Court found that Mr. Vinson credibly testified at the hearing, and it concluded that the debtors’ case and proposed plan did not violate the Flygare/Pioneer Bank factors and were proposed in good faith. The Court reasoned that, although the debtors historically had considerable difficulty paying the bank, they were entitled to pursue their legal rights in contesting the foreclosure, entitled to dispute the amount of the bank’s attorney’s fees and expenses, entitled to attempt to retain the property, and entitled to file bankruptcy. The Court noted that the debtors legitimately sought a judicial determination of the amount of the bank’s claim.
 
The Court undertook an a review of the bank’s 134 pages of legal fee statements and a summary thereof. The Court noted that the bank’s submissions were deficient in several respects, including, inter alia, a math error that took several errors to uncover, lumped attorney time, lumped categories, categories combined between the three notes, and random allocation of fees between categories, all of which caused the Court to spend hours to decipher a reasonable fee. 
 
The Court separated the legal fee statements into three categories—(i) Chapter 7, (ii) note at issue, (iii) post-petition—and analyzed the fees using L.B.R. 2016-1 and the lodestar factors as a guide. The Court excluded all legal fees that pertained to other notes and/or the previously-sold property, and it applied an adjusted, blended hourly rate to determine a reasonable amount for the remaining fees. The Court granted the debtors’ objection to the bank’s claim in part and reduced the bank’s attorney’s fees to $8,900 and awarded expenses in the amount of $2,800.85, for a total of $11,700.85.
Weinman v. Vantage Travel Servs., Inc., Adv. Pro. No. 17-01442 JGR Order on Cross-Motions for Summary Judgment entered March 20, 2019 03/20/2019

Plaintiff Jeffrey Weinman, Chapter 7 Trustee of the Haimark bankruptcy estate (“Trustee”), filed fifty-six avoidance actions in October 2017.  He sued Vantage Travel Services, LLC (“Vantage”) for recovery of an alleged preferential transfer in the amount of $474,718.  The parties agreed the Trustee met his burden to establish all elements of a preferential transfer under 11 U.S.C. § 547, except 11 U.S.C. § 547(b)(2), that the transfer was made for or on account of an antecedent debt.

Vantage was a tour operator which entered into several contracts with Haimark Line under which it purchased allotments for cruises on the MS Saint Laurent.  In turn, Vantage sold those cruise spaces to its own customers.

In June 2015, during its maiden voyage, the MS Saint Laurent collided with a concrete canal lock on the St. Lawrence River near Massena, New York (the “Allision”).  The ship was damaged, numerous passengers were injured, and an insurance dispute arose regarding responsibility for the Allision.  These events caused Haimark to file a Chapter 11 bankruptcy case.

Vantage entered into several contracts with Haimark, which required Vantage to pay deposits ranging from 15-20% of the contract prices.  In August 2015, Vantage paid Haimark $915,288, of which $499,193 was paid by mistake.  After discovering the mistake, the parties agreed to apply $416,094 of the $915,288 to deposits due for other cruise allotments.  Haimark wired the remaining $491,913 to Vantage from its general operating account for “the overpayment that was made on the MS Saint Laurent products.”

The matter came before the Court on cross motions for summary judgment. The parties agreed there were no facts in dispute.  The Trustee asserted that Haimark had a legal obligation to refund the overpayment to Vantage, such that Haimark owed an antecedent debt to Vantage.  Vantage argued that Haimark made an advance payment which was not for or on account of antecedent debt.

The Bankruptcy Code does not define what constitutes an antecedent debt.  The test for when a debt is incurred is whether the debtor is legally obligated to pay.  The Trustee relied on a line of cases for the proposition that a refund due as a result of an overpayment, made by a debtor to a creditor, was made for or on account of antecedent debt such as In re Twin Contracting Corp., 582 B.R. 400 (Bankr. E.D. Va. 2017) and In re Farr, 407 B.R. 343 (B.A.P. 8th Cir. 2009).

Vantage relied on a line of cases for the proposition that advance payments made by a debtor to a creditor for goods or services to be provided in the future are not made for or on account of antecedent debt such as In re New Page Corp., 569 B.R. 593 (D. Del. 2017) and In re Dots, LLC, 533 B.R. 432 (Bankr. D.N.J. 2015).   Thus, the dispositive issue was whether the overpayment made by Vantage could be characterized as an advance payment.  If so, no debt existed at the time of the transfer, so the transfer was not made for or on account of antecedent debt.

Here, Vantage (the creditor) made payments to Haimark (the debtor) pursuant to an agreement that required the debtor to provide future services (spots on cruises).  Under the agreement, the debtor was required to provide the future services, so Vantage held a claim against the debtor for the value of any future services that were not provided.  Once the overpayment occurred, the debtor had a legal obligation to repay that amount to Vantage and Vantage became the debtor’s creditor.

The case did not involve an advance payment by a debtor to a creditor for future goods and services to be provided.  The cases cited by Vantage were distinguishable because they involved fact patterns in which the debtor made an advance payment to a creditor for future goods and service to be provided.  While the distinction seems thin, it turns on the purpose of the transfer.  If the transfer was made by a debtor to a creditor to refund an overpayment, the cases uniformly hold it was made for or on account of antecedent debt.  On the other hand, if the transfer was an advance payment by a debtor to a creditor for good or services to be provided in the future, there is no antecedent debt owed to the creditor when the money is returned.

The Court held that the payment was a refund made on account of an antecedent debt and granted summary judgment in favor of the Trustee in the amount of $474,718.

Judge Thomas B. McNamara (TBM)

In re Kevin Lewis Bell, Bankruptcy Case No.19-20596 TBM, Docket No. 30 (Bankr. D. Colo. Apr. 23, 2020). 04/23/2020
The Chapter 7 Trustee moved to dismiss a Debtor’s bankruptcy case for the Debtor’s failure to present a Social Security Card at the Section 341 Meeting of Creditors.  The Debtor appeared and provided a Colorado Driver’s License and a self-prepared tax return but did not bring her Social Security Card.  The Debtor offered to provide it shortly thereafter.  The Chapter 7 Trustee, who had already continued the Section 341 Meeting of Creditors once, refused.  The Chapter 7 Trustee did not examine the Debtor and told the Debtor that the only option was dismissal.  In response to the Chapter 7 Trustee’s motion to dismiss, the Debtor provided her Social Security Card to the Chapter 7 Trustee.  
 
The Court analyzed the applicable Sections of the Bankruptcy Code, including Sections 341, 343 and 521, and concluded that the Bankruptcy Code does not include any requirement that a debtor provide proof of a Social Security Number at the Section 341 Meeting of Creditors.  Rather, such requirement is contained in Fed. R. Bankr. P. 4002(b)(1)(B).  The Debtor failed to strictly comply with that Rule.  However, exercising its discretion, the Court determined that the Social Security Card snafu was not sufficient cause for dismissal under Section 707(a)(1). 

Judge Elizabeth E. Brown (EEB)

In re Kinney, Case No. 13-27912 EEB - Order Denying Motion to Reconsider 11/22/2019

Chapter 13 debtor confirmed a five-year plan that required her to make direct payments to her mortgage lender.  When she failed to make the last three mortgage payments, the lender moved to dismiss the case.  The debtor then cured the arrearage but did so two and one-half months after the end of her plan.  Applying its earlier decision in In re Humes, 579 B.R. 557 (Bankr. D. Colo. 2018), the Court granted the lender’s motion to dismiss.  The Debtor filed a motion to reconsider.  Surmising that the debtor intended to appeal the issue, the Court gave more background on chapter 13 practice in this district for appellate court consideration in ruling on the debtor’s motion for reconsideration.

In re Kinney, Case No. 13-27912 EEB - Order Dismissing Case Prior to Entry of Discharge 02/27/2019

Chapter 13 debtor confirmed a five-year plan that required her to make direct payments to her mortgage lender.  When she failed to make the last three mortgage payments, the lender moved to dismiss the case.  The debtor then cured the arrearage but did so two and one-half months after the end of her plan.  Applying its earlier decision in In re Humes, 579 B.R. 557 (Bankr. D. Colo. 2018), the Court granted the lender’s motion to dismiss.  The Debtor filed a motion to reconsider.  Surmising that the debtor intended to appeal the issue, the Court gave more background on chapter 13 practice in this district for appellate court consideration in ruling on the debtor’s motion for reconsideration.

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