Rockstone Capital, LLC v. Walker-Thomas Furniture Co, Inc. et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
SYLVIA M. SMITH,
Debtor.
____________________________
ROCKSTONE CAPITAL, LLC,
Plaintiff,
v.
WALKER-THOMAS FURNITURE
COMPANY, INC., et al.,
Defendants.
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Case No. 04-01581
(Chapter 7)
Adversary Proceeding No.
04-10457
OPINION REGARDING MOTION FOR DEFAULT JUDGMENT
Before the court is a motion filed by the plaintiff,
Rockstone Capital, LLC (“Rockstone”), for default judgment
against Andre Smith, one of four defendants in this adversary
proceeding. For the reasons set forth below, the court denies
Rockstone’s motion at this time.
I
Rockstone filed an amended four-count complaint against
The decision below is hereby signed. Dated:
February 27, 2006.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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1 Rockstone does not specifically state in its Complaint
that it seeks to recover the defendants’ alleged fraudulent
transfers under 11 U.S.C. § 544, but cites instead the applicable
District of Columbia statutes governing fraudulent transfers
(Compl. ¶¶ 33 & 38). Nevertheless, the court will construe
Rockstone’s action as one pursuant to § 544, as Rockstone has not
requested relief from the automatic stay of 11 U.S.C. § 362,
which it would need to do to pursue its D.C. fraudulent
conveyance causes of action post-petition. See note 13, infra.
2 Rockstone alleges that the debtor conveyed certain real
property to her son, Andre Smith, in exchange for $10.00 as a
means to avoid the repercussions of her default on a note and
guaranty on the property held by Rockstone (Compl. ¶¶ 26-27).
Andre Smith, in turn, allegedly conveyed the same property to co-
defendant Mohamed Afrah for $10.00, who then borrowed $30,130.00
plus interest from Mr. Smith (Compl. ¶¶ 35-36). In so doing, the
debtor and Mr. Smith allegedly “absorbed all the equity in the
Property and left no monies for Rockstone . . .” (Compl. ¶ 37).
2
Walker-Thomas Furniture Company, Inc., William Smith, the debtor
Sylvia Smith, and Andre Smith on January 19, 2005. Rockstone
seeks the recovery of alleged fraudulent conveyances by the
defendants pursuant to D.C. CODE ANN. § 28-3105 et seq. and
(presumably)1 11 U.S.C. § 544(b),2 as well as a determination of
non-dischargeability against the debtor under 11 U.S.C. §§
523(a)(2)(A) and 523(a)(6). Pursuant to FED. R. CIV. P. 55 (as
incorporated by FED. R. BANKR. P. 7055), Rockstone filed a motion
for entry of default with respect to Andre Smith on June 13,
2005. The court granted that motion on June 30, 2005.
Rockstone filed the instant motion on October 7, 2005.
Rockstone seeks final judgment against Andre Smith with respect
to the first two counts of Rockstone’s complaint. To date, Andre
Smith has not answered Rockstone’s complaint. He has, however,
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3
filed an objection to a separate motion to compel filed by
Rockstone.
In his objection, Andre Smith states that he did not receive
notice of this case until October 29, 2005, and that he is
representing himself pro se. The substance and tone of his
objection suggest that Mr. Smith wishes to contest the
allegations levied against him by Rockstone. Without the benefit
of counsel, however, he may not know how to defend himself in
accordance with the Federal Rules of Civil Procedure, the Federal
Rules of Bankruptcy Procedure, and the local rules of this court.
II
“‘When an application is made to the court under Rule
55(b)(2) for the entry of a judgment by default, the [trial]
judge is required to exercise sound judicial discretion in
determining whether the judgment should be entered.’” Savage v.
Scales, 310 F. Supp. 2d 122, 127 (D.D.C. 2004) (quoting 10A
Wright, Miller & Kane, Fed. Prac. and Proc. § 2685 (3d ed.
1998)). “Judicial policy strongly favors deciding cases on their
merits rather than by default judgments; therefore, default
judgments are usually reserved for totally unresponsive parties.”
Id. (emphasis added). “This line of reasoning rhymes with the
Federal Rules of Civil Procedure, which generally embody an
effort to ensure that courts decide cases based on the strength
of the adversaries’ arguments rather than on the skillful use of
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4
technicalities.” Canady v. Erbe Elektromedizin GMBH, 307 F.
Supp. 2d 2, 9 (D.D.C. 2004).
Courts in this circuit use a three-prong test to determine
whether to grant a motion for default judgment: “whether (1) the
default was willful; (2) a set-aside would [unduly] prejudice
[the] plaintiff; and (3) the alleged defense was meritorious.”
Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980) (quoting
Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 374
(D.C. Cir. 1980)). All three criteria weigh against Rockstone in
this case. For that reason, the court will deny Rockstone’s
motion at this time.
A. Lack of Response
Although Mr. Smith has not yet filed a response to
Rockstone’s complaint, his silence can hardly be described as “a
deliberate decision to default . . . .” Int’l Painters & Allied
Trades Union & Indus. Pension Fund v. H.W. Ellis Painting Co.,
Inc., 288 F. Supp. 2d 22, 26 (D.D.C. 2003). Indeed, if Mr.
Smith’s assertions regarding service of process in this case are
true, his prior silence in this case is not his fault at all.
Mr. Smith states in his objection to a separate motion filed
by Rockstone that he “received the first notice regarding this
proceeding on October 29, 2005” (Obj. ¶ 3), and that he is “just
becoming aware of all the facts in this proceeding” (Obj. ¶ 5).
The court’s records support this assertion. Prior to filing its
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5
certificate of discovery with respect to Andre Smith, the address
used by Rockstone for service purposes--including the summons and
complaint for the adversary proceeding--was “4277 Mazarin Place,
Fairfax, Virginia 22033.” The court mailed a copy of its order
of default to that same address on July 2, 2005, and received a
notice of returned mail on July 24, 2005. At that point in time,
Andre Smith had not appeared before the court in person or filed
any motions or pleadings in the adversary proceeding.
The situation changed when Rockstone mailed its certificate
of discovery to Mr. Smith’s current address in Columbia,
Maryland. In response to Rockstone’s discovery requests, Mr.
Smith agreed to be deposed by Rockstone, but declined to answer
questions that did not “seem[] relevant to the discovery
requested by [Rockstone]” (Obj. ¶ 3). When Rockstone filed a
motion to compel Andre Smith’s testimony, Mr. Smith filed an
“objection” to the motion. In other words, Mr. Smith has
participated in this case ever since Rockstone began to serve
process on him at the correct address.
Various statements in Mr. Smith’s objection indicate that he
intends to refute the allegations of Rockstone. For example, Mr.
Smith argues in his objection that he “received fair
consideration for the property” at issue in this proceeding (Obj.
¶ 5). He claims that he “had no prior knowledge” of any harm
caused to Rockstone by the transfer of the property at issue “and
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3 Based on Andre Smith’s statements in his opposition to
Rockstone’s motion to compel, it is unclear whether he has seen
Rockstone’s complaint even at this late date. For that reason,
the court will direct Rockstone and Mr. Smith to report whether
service of process has been effected in its order accompanying
this opinion.
6
had no intention to harm [Rockstone]” (Obj. ¶ 5). Mr. Smith
states unequivocally that “he committed no act of fraud” (Obj. ¶
7). At the same time, Andre Smith admits that he is a pro se
defendant with little experience in legal matters. It is
therefore not surprising that he has not produced a formal answer
to a complaint filed against him nearly eleven months before Mr.
Smith even knew a lawsuit against him existed.3
Given these statements, and given that Andre Smith’s failure
to appear in the case earlier appears to have been due to
Rockstone’s failure to serve him at the correct address, the
court cannot conclude that Mr. Smith has been “unresponsive or
otherwise dilatory in defending [his] interests.” Scimed Life
Systems, Inc. v. Medtronic Ave. Inc., 297 F. Supp. 2d 4, 9
(D.D.C. 2003). To the contrary, where, as here, the defendant to
an action “did not even know of the default,” Jackson, 636 F.2d
at 837, default judgment is inappropriate. Id.; see also Combs
v. Nick Garin Trucking, 825 F.2d 437, 442-44 (D.C. Cir. 1987)
(holding that default judgment should be vacated where there was
no service of process). Rockstone’s motion for default judgment
is premature for this reason alone.
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7
B. Undue Prejudice to Rockstone
The court sees no prejudice to Rockstone in denying its
motion for default judgment at this time other than delay in
obtaining a final judgment, which “is not usually a sufficient
basis for finding that the moving party has been prejudiced.”
Honda Power Equip. Mfg., Inc. v. Woodhouse, 219 F.R.D. 2, 5
(D.D.C. 2003). On the other hand, “forcing a party to expend
further time and money to collect on a claim as to which there
are no meritorious defenses unfairly prejudices [a] plaintiff to
some degree.” Int’l Painters Fund, 288 F. Supp. 2d at 31. The
court will therefore turn to the third prong of the Jackson test,
as that determination will inform the court’s understanding of
the prejudice to Rockstone arising from a denial of default as
well.
C. Merits of Defense
“For purposes of resolving a motion for default judgment, a
defense is deemed meritorious if it is a complete defense, such
as lack of subject matter jurisdiction or a denial.” Honda Power
Equip. Mfg., Inc., 219 F.R.D. at 5-6. Mr. Smith has not filed an
opposition to Rockstone’s motion for default judgment. He has,
however, filed an opposition to Rockstone’s motion to compel that
raises a complete defense to Rockstone’s action against him:
failure of service of process.
“[S]ervice of summons is the procedure by which a court
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4 Accord Hasbrouck v. Valeu, 53 B.R. 549, 553 (Bankr.
D.N.D. 1985) (“The service of process must comply with technical
requirements of the Rules as well as due process considerations
of ‘fair play and substantial justice.’”) (quoting Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945)) (further citation
omitted).
8
having venue and jurisdiction of the subject matter of the suit
asserts jurisdiction over the person of the party served.” Miss.
Publishing Corp. v. Murphree, 326 U.S. 438, 444-45 (1946).
Unlike the Federal Rules of Civil Procedure, the Federal Rules of
Bankruptcy Procedure permit a plaintiff to serve process
by first class mail postage prepaid as
follows:
(1) [u]pon an individual other than
an infant or incompetent, by
mailing a copy of the summons and
complaint to the individual’s
dwelling house or usual place of
abode or to the place where the
individual regularly conducts a
business or profession . . . .
FED. R. BANKR. P. 7004(b).
Courts require “a higher standard of care when serving a
party defendant” using “the abbreviated procedure of service by
mail,” McElhaney v. Student Loan Services (In re McElhaney), 142
B.R. 311, 313 (Bankr. E.D. Ark. 1992), because of the
jurisdictional and “due process ramifications” of improper
service. DuVoisin v. Arrington (In re Southern Indus. Banking
Corp.), 205 B.R. 525, 533 (E.D. Tenn. 1996), aff’d 112 F.3d 248
(6th Cir. 1997).4 “Mailing to a respondent’s ‘last known
address’ is not sufficient to effect service under this rule if
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5 Accord In re Southern Indus. Banking Corp., 205 B.R. at
531 (finding no service of process on defendant where summons and
complaint were sent to previous address of defendant); but cf.
Burke v. Greaves (In re Greaves), 121 B.R. 234, 236 (N.D. Ill.
1990) (finding proper service of process under Rule 7004(b)(1) so
long as plaintiff’s service of process “was reasonably calculated
to provide defendant with notice at his dwelling house”);
Goldberg v. Weichert (In re Timberline Energy Inc.), 70 B.R. 450,
453 (Bankr. N.D.N.Y. 1987) (holding that service of process via
mail to address listed by defendant in court filings satisfies
Rule 7004). Although the courts in both In re Greaves and In re
Timberline Energy Inc. downplay the requirement that service of
process be made to the actual dwelling of the defendant in favor
of a more vague “reasonableness” requirement, those decisions are
distinguishable because the courts in those cases rely on filings
made by the defendants in those actions regarding their own
cases, effectively estopping the defendants from asserting that
the addresses used by the plaintiffs were wrong.
6 A defendant opposing a default judgment does not need to
prove or even demonstrate a likelihood of success with respect to
her defense; a mere allegation of a total defense will suffice.
Jackson, 636 F.2d at 837 (“final criterion” of three-prong test
satisfied where defendant “alleged a meritorious defense”);
Keegel, 627 F.2d at 374 (assertions of total defense should not
be judged by a “likelihood of success” standard).
9
the respondent is not living at that address at the time service
is attempted.” In re Barry, 330 B.R. 28, 33 (Bankr. D. Mass.
2005).5 “Even receipt of actual notice does not remedy the
technically defective service[,] through which the court fails to
obtain personal jurisdiction.” In re Valeu, 53 B.R. at 553.
Assuming, as the court must for purposes of the instant
motion,6 that Mr. Smith’s statements in his opposition to
Rockstone’s motion to compel are true, and setting aside any
consideration as to whether Rockstone’s case against Mr. Smith
should be dismissed pursuant to FED. R. CIV. P. 12(b)(5) (as
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7 FED. R. BANKR. P. 7004(m) requires that a plaintiff’s case
be dismissed without prejudice “[i]f service of the summons and
complaint is not made upon a defendant within 120 days after the
filing of the complaint” unless the plaintiff can show “good
cause” for an extension of time in which to serve the unserved
defendant. Rockstone’s complaint was filed on January 19, 2005--
more than a year prior to today’s date.
10
incorporated by FED. R. BANKR. P. 7012),7 Rockstone cannot succeed
on its claim against Mr. Smith unless and until it has properly
served him with a court-issued summons and a complaint. Mr.
Smith has asserted a meritorious defense to Rockstone’s
allegations, even if he did raise it in response to a different
motion filed by Rockstone.
D. Standing under 11 U.S.C. § 544(b)
Finally, the court has concerns of its own regarding the
standing of Rockstone to assert a cause of action under § 544 of
the Bankruptcy Code, which permits
the trustee [to] avoid any transfer of an
interest of the debtor in property or any
obligation incurred by the debtor that is
voidable under applicable law by a creditor
holding an unsecured claim that is allowable
under [11 U.S.C. § 502] or that is not
allowable only under [11 U.S.C. § 502(e)].
11 U.S.C. § 544(b) (emphasis added). “Standing can be raised at
any point in a case proceeding and, as a jurisdictional matter,
may be raised, sua sponte, by the court.” Steffan v. Perry, 41
F.3d 677, 697 n.20 (D.C. Cir. 1994).
“Sections 544(b) and 548 of the [Bankruptcy] Code expressly
vest in the trustee or debtor-in-possession the right to assert a
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8 But see Dehmer v. Temple, 44 B.R. 992, 995 (S.D. Miss.
1984) (“Creditors may utilize [§] 544 in connection with state
fraudulent conveyance statutes to set aside fraudulent
conveyances.”).
11
claim for fraudulent conveyance under state or federal law.” AP
Indus., Inc. v. SN Phelps & Co. (In re AP Indus., Inc.), 117 B.R.
789, 799-800 (Bankr. S.D.N.Y. 1990). “It is axiomatic that a
duly qualified trustee in bankruptcy represents the estate and is
the only proper party to maintain any action under [Bankruptcy]
Code § 544(b) . . . .” Best Mfr., Inc. v. White Plaints Coat &
Apron, Inc. (In re Daniele Laundries, Inc.), 40 B.R. 404, 408
(Bankr. S.D.N.Y. 1984). “The Code section does not give
avoidance powers to creditors, nor have the courts generally
allowed creditors to invoke such power.” Bank of Cal. v. LMJ,
Inc. (In re LMJ, Inc.), 159 B.R. 926, 928 (D. Nev. 1993).
“Consequently, many courts have held that an individual creditor
has no standing to bring a fraudulent conveyance action under
§ 544(b).” Larson v. Munoz, 111 B.R. 928, 930 (D. Colo. 1990).8
The court recognizes that some courts “have . . . permitted
individual creditors to pursue claims under the trustee’s strong-
arm provisions,” In re Lewis, 1996 WL 33401163, *5 (Bankr. S.D.
Ga. July 22, 1996), if “[o]nly under extreme
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9 See also Canadian Pac. Forest Products Ltd. v. J.D.
Irving, Ltd. (In re Gibson Group, Inc.), 66 F.2d 1436, 1440-41
(6th Cir. 1995) (construing §§ 547 and 548 to permit derivative
standing for creditors under certain circumstances); Lilly v.
FDIC (In re Natchez Corp. of W. Va.), 953 F.2d 184, 187 (5th Cir.
1992) (construing § 549 to permit creditors to stand in for
chapter 7 trustee if court authorizes procedure).
10 But see Official Comm. of Unsecured Creditors of
Cybergenics Corp. v. Chinery, 330 F.3d 548, 556-59 (3d Cir. 2003)
(court can authorize creditors’ committee to pursue fraudulent
conveyances using its equitable powers).
12
circumstances . . . .” Id.9 But other courts have refused to
recognize any set of circumstances under which an individual
creditor might sue to recover a fraudulent transfer on the
grounds that any such exception would be contrary to
congressional intent as expressed in the plain language of the
statute. See, e.g., Surf N Suns Apartments, Inc., R.D.M.H. v.
Dempsey, 253 B.R. 490, 492-93 (M.D. Fla. 1999) (construing 11
U.S.C. § 548); Met-Al, Inc. v. Gabor (In re Metal Brokers Int’l,
Inc.), 225 B.R. 920, 922 (Bankr. E.D. Wis. 1998) (construing 11
U.S.C. §§ 547-549). The Supreme Court’s relatively recent
decision in Hartford Underwriters Ins. Co. v. Union Planters
Bank, 530 U.S. 1 (2000), where the Court held that individual
creditors did not have standing to sue under 11 U.S.C. § 506(c)
because the plain language of the statute restricted the right to
sue to the “trustee,” id. at 6-14, suggests that this latter
approach may be the correct one.10
Moreover, even if Rockstone could conceivably assert
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11 Accord Hyman v. Harrold (In re Harrold), 296 B.R. 868,
874 (Bankr. M.D. Fla. 2003) (construing §§ 547 and 548); NBD
Bank, N.A. v. Fletcher (In re Fletcher), 176 B.R. 445, 454
(Bankr. W.D. Mich. 1995) (same).
12 See also In re Gibson Group, Inc., 66 F.3d at 1441-42
(favoring “more flexible approach” taken by some courts in
deciding whether to grant derivative standing over specific
prerequisites).
13
“derivative standing” to bring its fraudulent conveyance action,
it is far from certain that it could do so in this case. Most
courts that allow a creditor to bring an action under § 544(b)
“have found it imperative that the creditor first seek approval
from the bankruptcy court and demonstrate that the claim is
potentially meritorious,” In re Munoz, 111 B.R. at 931,11
although a few courts have waived this requirement. See In re
Lewis, 1996 WL at *6 (permitting creditor to assert § 544 action
because standing issue was “waived” by the other party and “it
would be imprudent to appoint a trustee when a willing creditor
has already undertaken the litigation”).12 Yet, Rockstone has
not sought authorization from this court to pursue the trustee’s
§ 544(b) claims, and (to the best of the court’s knowledge) has
not made a formal demand on the chapter 7 trustee to pursue the
claim prior to its initiation of this adversary proceeding,
either. See In re Gibson Group, Inc., 66 F.3d at 1444 (listing
as another “‘consideration’” in deciding whether to grant
creditor derivative standing the “requirement that the
creditor(s) have made a demand on the debtor or trustee for
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13 The court in In re Porras distinguished between property
that is fraudulently transferred, which the court considered
property of the estate, and the state law fraudulent conveyance
cause of action, which remained with the creditor (in this case,
the IRS) post-petition. In re Porras, 312 B.R. at 94.
Ordinarily, a creditor is barred by the automatic stay of 11
U.S.C. § 362 from pursuing a state fraudulent conveyance claim
until the bankruptcy case is closed and the stay expires. See
Klingman v. Levinson, 158 B.R. 109, 113 (N.D. Ill. 1993) (“The
trustee’s exclusive right to maintain a fraudulent conveyance
cause of action expires and creditors may step in (or resume
actions) when the trustee no longer has a viable cause of
action.”); M & I Heat Transfer Products, Ltd. v. Gorchev (In re
Gorchev), 275 B.R. 154, 171 (Bankr. D. Mass. 2002) (right to
avoid fraudulent transfers “belongs to the [d]ebtor’s bankruptcy
estate and, unless abandoned, may be prosecuted only by the
[c]hapter 7 [t]rustee”). To overcome this hurdle, the court in
In re Porras modified the stay nunc pro tunc “to allow the IRS to
assert for the benefit of the bankruptcy estate, jointly with the
[t]rustee, the fraudulent transfer causes of action against the
[d]ebtor and the [transferee].” Id.
14
action and the demand was refused”) (quoting Louisiana World
Exposition, Inc. v. Fed. Ins. Co. (In re Louisiana World
Exposition, Inc.), 832 F.2d 1391 (5th Cir. 1987)).
Finally, the court lacks certainty as to whether Rockstone
could maintain its adversary proceeding under an alternative
legal theory fitting the same facts alleged in its complaint. At
least one court has allowed a creditor to assert a state
fraudulent conveyance action directly rather than via the
“strong-arm” mechanism of § 544. Osherow v. Porras (In re
Porras), 312 B.R. 81, 94 (Bankr. W.D. Tex. 2004).13 The court
has doubts, however, as to whether it would have subject-matter
jurisdiction over such an action, as a recovery by Rockstone
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14 One possible solution to Rockstone’s problem with
standing would be to have the trustee appoint Rockstone as its
own representative subject to court approval. See, e.g.,
McCarthy v. Navistar Fin. Corp. (In re Vogel Van & Storage,
Inc.), 210 B.R. 27, 32-33 (N.D.N.Y. 1997) (permitting such an
arrangement for purposes of pursuing preference action). Of
course, any recovery made by Rockstone as a representative of the
trustee would necessarily go to the estate for distribution to
all of the debtor’s creditors, not just Rockstone. See id. at 33
(creditor could act as agent for chapter 7 trustee because the
trustee would “retain[] control over the claim and over any
assets which are brought into the estate through the preference
action”).
15
might not have any impact on the administration of the estate.14
III
Given the jurisdictional issues yet to be resolved in this
case, as well as Mr. Smith’s apparent desire to defend himself
and the seeming inadvertence of his prior failure to respond to
Rockstone’s complaint, the court deems it appropriate to deny
Rockstone’s motion for default judgment at this time. The court
will enter a separate order denying the motion and directing both
parties to inform the court as to whether Mr. Smith has received
service of process of the complaint and summons in this case,
and, if so, when that service was effected. The future of this
proceeding with respect to Andre Smith will depend on the
parties’ responses and the conclusions of the court drawn
therefrom.
An order follows.
[Signed and dated above.]
Copies to:
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16	O:\Andrew Fausett Temp Docs\opinion_default judgment_Rockstone.wpd
James E. Clarke
Rita Ting-Hopper
Draper & Goldberg, PLLC
803 Sycolin Road
Suite 301
Leesburg, VA 20175
Counsel for the plaintiff Rockstone Capital, LLC
Vere O. Plummer
Plummer and Associates
1090 Vermont Avenue, NW Suite 800
Washington, DC 20005
Counsel for the debtor Sylvia M. Smith
Rockstone Capital, LLC
c/o Union Financial Corporation
5510 Edson Lane
Rockville, MD 20852
Plaintiff
Sylvia M. Smith
310 Jefferson St., NW
Washington, DC 20011
Debtor
Walker-Thomas Furniture Co, Inc.
c/o William Smith, President
6804 25th Avenue
Hyattsville, MD 20782
Co-defendant
William Smith
6804 25th Avenue
Hyattsville, MD 20782
Co-defendant
Andre L. Smith
9490 Timesweep Lane
Columbia, MD 21045
Mohamed O. Afrah
2229 10th Street, NW
Washington, DC 20001
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