Wilson v. Home-Savers, LLC et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
CALVERT M. WILSON,
Debtor.
____________________________
CALVERT M. WILSON,
Plaintiff,
v.
HOME-SAVERS, LLC, a foreign
limited liability company,
et al.,
Defendants.
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Case No. 01-00092
(Chapter 13)
Adversary Proceeding No.
06-10037
DECISION RE MOTIONS FOR SUMMARY JUDGMENT
The plaintiff, Calvert M. Wilson (“Wilson”), was the owner
of real property known as 1905 2nd Street, N.E., Washington, D.C.
(the “2nd Street Property”). Wilson's complaint seeks, in part,
a declaratory judgment that a deed and a deed of trust he
executed on November 14, 2004, to convey to the defendant 1905
The decision below is hereby signed. Dated: August
17, 2006.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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1 The complaint refers to this defendant as 1905 2nd Street,
NE, LLC, but I will refer to this defendant by the name that
appears in the deed and the deed of trust.
2 The plaintiff filed his complaint in the United States
District Court for the District of Columbia where it was assigned
Civil Action No. 06-0069 (JDB). The District Court read the
complaint as seeking, in part, a declaration that the transaction
at issue in the complaint was void under the Bankruptcy Code (11
U.S.C.). Because that claim arose under the Bankruptcy Code, the
District Court issued an order on April 24, 2006, referring the
claim (and any related counterclaim by the defendants) to this
court for disposition pursuant to 28 U.S.C. § 157(a) and DCt.LBR
5011-1. The defendants filed no related counterclaim. Other
claims raised in the complaint remain pending in the District
Court for disposition by that court.
3 The claim is a core proceeding that this court may hear
and determine under 28 U.S.C. § 157(b)(1) as it arises under the
Bankruptcy Code. Accordingly, any review of this court's final
judgment must be sought by way of appeal. 28 U.S.C. § 158(a)(1).
The claim is not a proceeding that “is not a core proceeding but
that is otherwise related to a case under title 11" under 28
U.S.C. § 157(c)(1) in which I would be required to submit to the
District Court proposed findings of fact and conclusions of law.
2
2nd ST, NE, LLC,1 interests in the 2nd Street Property, and any
other aspects of the transaction involving those instruments
(including the borrowing of money), were void under the
Bankruptcy Code (11 U.S.C.) due to the pendency of his bankruptcy
case.2 Both Wilson and the defendants have filed motions for
summary judgment regarding this claim.3
Based on an issue the parties did not brief, my preliminary
view was that the deed and the deed of trust, and other aspects
of the transaction, were not void. By a preliminary order
entered on July 18, 2006, I set forth my preliminary analysis
(repeated in large part below) and gave Wilson the opportunity to
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4 When a court considers an apparently dispositive issue
that the parties ignored, “it should ensure procedural fairness .
. . by providing each party with the opportunity to brief [the]
issue . . . .” Randolph v. United States, 882 A.2d 210, 227
(D.C. 2005).
3
file a further memorandum demonstrating that the preliminary
analysis was in error.4 Wilson has filed a supplemental
memorandum, but as discussed below it fails to demonstrate that I
should alter the ultimate conclusion I reached in my preliminary
analysis. Accordingly, I will grant the defendants' motion, deny
Wilson's motion, and enter a declaratory judgment that the deed
and the deed of trust, and other aspects of the transaction, are
not void under the Bankruptcy Code.
I
Wilson specifically claims that the deed and the deed of
trust, and other aspects of the transaction, are void under 11
U.S.C. §§ 362(a), 363, 364, and 549. However, as explained in
part II, below, that claim is necessarily premised on the 2nd
Street Property having been property of the estate in his
bankruptcy case when the instruments were executed. The file in
Wilson's bankruptcy case demonstrates that as a matter of law the
property had ceased to be property of the estate prior to
Wilson's executing the instruments, thus making summary judgment
in favor of the defendants appropriate. Before addressing that
dispositive legal issue in part II, I review below the
proceeding's factual and procedural background.
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A.
In January 2001 Wilson filed a petition in this court
commencing a case under chapter 13 of the Bankruptcy Code.
Included in the property of the estate under 11 U.S.C. § 541 was
Wilson's 2nd Street Property. The deed and the deed of trust
that Wilson attacks as void were executed on November 14, 2004,
when Wilson was facing a foreclosure of the 2nd Street Property
by ABN AMRO (which had obtained relief from the automatic stay of
11 U.S.C. § 362(a) to permit it to proceed with foreclosure).
Wilson characterizes the defendants as predators who
obtained a 400% return on a loan to facilitate Wilson's avoiding
foreclosure, and the details in that regard follow (although I
later conclude that any predatory aspects of the loan are
irrelevant in disposing of the bankruptcy issues). On November
14, 2004, in exchange for a $30,525.14 emergency loan used to
bring ABN AMRO's loan current, Wilson executed an agreement with
Home Savers Plus, LLC (the “Agreement”). Both parties treat Home
Savers Plus, LLC and the defendant Home Savers, LLC (“Home
Savers”) as one and the same, and so will I. Pursuant to the
Agreement, Wilson was given 60 days to refinance the 2nd Street
Property and, out of the refinance proceeds, pay off ABN AMRO's
loan, and pay to Home Savers “$122,656.07 plus any costs advanced
to stop the foreclosure.” The Agreement required Wilson to
execute “needed documents to protect the interests of Home Savers
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5 Had Wilson achieved a timely refinance, a third document
appears to have required payment to be made to 1905 2nd ST NE,
LLC (and not Home Savers Plus, LLC) out of the refinance
proceeds: Wilson executed an Assignment of Proceeds assigning to
1905 2nd ST NE, LLC “from settlement on the property” (presumably
meaning the settlement of the refinance contemplated by the
agreement with Home Savers Plus, LLC):
proceeds from settlement [to] be distributed completely up
to the amount of $122,656.07. This includes the monies
advanced to stop the foreclosure sale.
5
Plus, including, deeds, deeds of trusts, and related settlement
documents” but provided that the executed documents would be held
in escrow “until the expiration of this agreement.” Incident to
the Agreement, Wilson also executed on November 14, 2004:
• a Deed conveying the 2nd Street Property to Home
Savers' affiliate and co-defendant, 1905 2nd ST NE,
LLC; and
• a Deed of Trust in favor of 1905 2nd ST NE, LLC as
“Lender” to secure repayment of a debt of $30,535.14,
plus interest, recited to be evidenced by an agreement
of the same date.5
The foregoing are the deed and the deed of trust that Wilson
seeks to declare void. The Agreement with Home Savers provided:
In the event that that [sic] the refinance does not take
place within the specified time-frame, the documents held in
escrow shall be released and recorded. This includes the
deed that transfers ownership of the property.
Pursuant to that provision, the defendants have now recorded with
the District of Columbia Recorder of Deeds the Deed conveying
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title to the 2nd Street Property to 1905 2nd ST NE, LLC.
B.
Under 11 U.S.C. § 1321, Wilson was required to file a plan,
and he filed an initial plan and then an amended plan. Once a
plan is confirmed under 11 U.S.C. § 1325, the provisions of that
plan “bind the debtor and each creditor . . . .” 11 U.S.C. §
1327(a). On May 21, 2001, the clerk entered the court's order
confirming Wilson's amended plan, and he thus became bound by its
terms. Under 11 U.S.C. § 1327(b):
Except as otherwise provided in the plan or the order
confirming the plan, the confirmation of a plan vests
all of the property of the estate in the debtor.
Neither the confirmed plan nor the order confirming that plan
included a provision to alter the general rule that confirmation
vests the property of the estate in the debtor. Accordingly, the
property of the estate in existence on May 21, 2001, including
the 2nd Street Property, vested in Wilson upon confirmation of
the plan on that date. In part II, below, I conclude that this
resulted in the 2nd Street Property no longer being property of
the estate. The confirmed plan and the order confirming it were
never modified to alter that result, and in 2004, despite the
pendency of Wilson's bankruptcy case, the 2nd Street Property
remained vested in Wilson, and not property of the estate, when
he executed the deed and the deed of trust at issue.
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C.
Before addressing the dispositive legal issue in part II, I
must first address whether the defendants have waived that issue.
Wilson filed a Statement of Undisputed Facts in support of his
motion for summary judgment. Wilson apparently intended that
document to serve as his “statement of material facts as to which
the moving party contends that there is no genuine issue” which
is required by LCvR 56.1 of the District Court (made applicable
by LBR 7056-1). That Statement recites that “[t]he 2nd Street
Property is an asset of Wilson's Chapter 13 Estate. 11 U.S.C. §
541.” Under Rule 56.1, “the court may assume that facts
identified by the moving party in its statement of material facts
are admitted, unless such a fact is controverted in the statement
of genuine issues filed in opposition to the motion.” (Emphasis
added.) The defendants have not controverted Wilson's statement
that the 2nd Street Property “is an asset of Wilson's Chapter 13
Estate” and, indeed, appear to have assumed that it was property
of the estate when Wilson executed the deed and the deed of
trust.
Nevertheless, I will not treat Wilson's statement that the
2nd Street Property “is an asset of Wilson's Chapter 13 Estate”
as an admitted fact. First, in making the statement, Wilson
failed to comply with the requirement in Rule 56.1 that the
statement “shall include references to the parts of the record
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relied on to support the statement.” Second, the statement is
one not of fact but of law (based on what transpired in Wilson's
bankruptcy case). The parties may not stipulate to legal
conclusions to be reached by the court. Case v. Los Angeles
Lumber Prods. Co., 308 U.S. 106, 114 (1939); NLRB Union, Local 6
v. FLRA, 842 F.2d 483, 485 n.6 (D.C. Cir. 1988); Sebold v.
Sebold, 444 F.2d 864 (D.C. Cir. 1971). Third, by use of the word
“may,” Rule 56.1 recognizes that in appropriate circumstances a
court has discretion not to treat an uncontested statement as
admitted. Finally, “a court may consider an issue 'antecedent to
. . . and ultimately dispositive of' the dispute before it, even
an issue the parties fail to identify and brief.” U.S. Nat'l
Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447
(1993) (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77
(1990)). Accordingly, the defendants have not waived the
dispositive legal issue.
II
As discussed above, under § 1327(b) the 2nd Street Property
had remained vested in Wilson since his plan was confirmed in
2001. The critical issue is whether the 2nd Street Property
nevertheless remained “property of the estate” when Wilson
executed the deed and the deed of trust in 2004. If it was no
longer property of the estate, none of the provisions upon which
Wilson relies in pursuing his claim to void the deed and the deed
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of trust provide a basis for such relief.
A.
When the provisions of a confirmed plan or the order
confirming the plan do not override the general rule of § 1327(b)
that the property of the estate vests in the debtor, the courts
have given § 1327(b) varying interpretations regarding whether
any property of the estate remains in the case. I readily reject
the interpretation upon which Wilson relies.
Some courts have held that when the plan or confirmation
order does not provide otherwise, property of the estate retained
by the debtor ceases upon confirmation to be property of the
estate by reason of § 1327(b). See In re Petruccelli, 113 B.R. 5
(Bankr. S.D. Cal. 1990). Accord, Oliver v. Toth (In re Toth),
193 B.R. 992 (Bankr. N.D. Ga. 1996). Under that interpretation,
the 2nd Street Property ceased to be property of the estate upon
confirmation of the plan. Although, under those decisions,
Wilson's plan might be viewed as implicitly providing that funds
turned over to the trustee were to become property of the estate
upon such turnover, the 2nd Street Property was not money and was
not turned over to the trustee, and the plan did not provide for
the 2nd Street Property to remain property of the estate.
Other decisions hold that even more of the property of the
estate (beyond that turned over to the trustee) remains property
of the estate during the pendency of the case despite
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confirmation of a plan that is silent regarding vesting, but they
disagree regarding the extent. Of those decisions, the
interpretation of § 1327(b) that I find most reasonable is that
property of the estate in existence at the time of confirmation
vests in the debtor and ceases to be property of the estate
(unless and until it is turned over to the trustee for
distribution to creditors). See Barbosa v. Soloman (In re
Barbosa), 235 F.3d 31, 36-37 (1st Cir. 2000). That
interpretation harmonizes § 1327(b) with 11 U.S.C. § 1306(a)
(providing that property acquired by the debtor postpetition,
including postpetition earnings, becomes property of the estate).
However, it can be argued that Petruccelli is correct in treating
§ 1327(b), the more specific provision, as applying to all
property treated by § 1306(a) as property of the estate, whether
that property is acquired before or after confirmation. I need
not choose between Barbosa and Petruccelli because the 2nd Street
Property had ceased to be estate property upon confirmation under
either approach.
An alternative view of § 1327(b) is that such property as is
necessary for the execution of the chapter 13 plan remains
property of the estate. See Telfair v. First Union Mortgage
Corp. (In re Telfair), 216 F.3d 1333 (11th Cir. 2000); Black v.
U.S. Postal Service (In re Heath), 115 F.3d 521, 524 (7th Cir.
1997). However, that interpretation of § 1327(b) is based on a
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6 As noted in Parrish, 275 B.R. at 432, however, some
decisions hold that a debtor's plan payments vest in the
creditors entitled to a distribution of such payments. Payments
held by the trustee would not be property of the debtor under
either that view or the view that they are estate property.
11
judicial gloss not found in the statute itself. Furthermore, it
engenders uncertainty in the determination of what property is
necessary to the completion of the plan, contrary to the need for
the Bankruptcy Code to accord postpetition creditors clarity
regarding what property remains property of the estate protected
by the automatic stay.
The Code treats plan payments received by the trustee and
required by the plan's terms to be paid to creditors as remaining
estate property upon confirmation despite § 1327(b).
See Security Bank of Marshalltown, Iowa v. Neiman, 1 F.3d 687,
690-91 (8th Cir. 1993); In re Parrish, 275 B.R. 424, 430 (Bankr.
D.D.C. 2002), citing 18 U.S.C. § 153(a) (subjecting a trustee to
criminal penalties if she embezzles property belonging to “the
estate of a debtor”).6 Telfair and Heath appear to rest in part
on that treatment of plan payments received by a trustee.
However, Petruccelli and Barbosa are consistent with that
treatment of plan payments received by a trustee. They address
the impact of § 1327(b) on property as to which the confirmed
plan failed to alter the general rule of § 1327(b), and a
confirmed plan implicitly alters the general rule of § 1327(b) in
the case of payments received and held by a trustee. It is
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unnecessary to rely on the amorphous test of Telfair and Heath to
achieve the same treatment of such plan payments in a trustee's
possession.
Even if Telfair and Heath controlled, I would hold that the
2nd Street Property ceased to be property of the estate as it was
not necessary to completion of the chapter 13 plan. Wilson
obtained a discharge despite the execution of the deed and the
deed of trust. That suffices under the Telfair and Heath
approach to demonstrate that the 2nd Street Property was not
property of the estate. See Telfair, 216 F.3d at 1340 n.14.
Wilson has established that the 2nd Street Property's rents were
the source of income with which he was making plan payments.
However, the transactions with the defendants did not interfere
with Wilson's use of those rents during the pendency of the
chapter 13 case, and, indeed, enabled Wilson to retain the 2nd
Street Property (albeit only temporarily) and thereby to complete
his chapter 13 plan. In any event, this type of difficult line
drawing under Telfair and Heath readily illustrates why the
Petrocelli and Barbosa approaches are preferable.
Finally, there is a view that although the property of the
estate vests in the debtor, it does not cease to be property of
the estate until the case is dismissed, closed, or converted.
See, e.g., Riddle v. Aneiro (In re Aneiro), 72 B.R. 424, 428-29
(Bankr. S.D. Cal. 1987). However, that interpretation renders §
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1327(b) meaningless, and I decline to follow it.
Wilson cites Security Bank of Marshalltown, Iowa v. Neiman,
1 F.3d 687 (8th Cir. 1993), as being in accord with Aneiro, but
the court in Neiman relied on Aneiro in what was purely
unnecessary dicta. The issue in Neiman was whether postpetition
expenses incurred in the chapter 13 case by the debtor in his
farm operation were entitled to be treated as costs of preserving
the estate, and this turned on whether an estate continued to
exist. The court of appeals specifically noted that the issue
before it did not include “what the estate included and what was
protected by the stay.” Neiman, 1 F.3d at 690. Looking to
several provisions that recognize that, even after confirmation,
a chapter 13 trustee continues to administer funds received by
her as estate property, the court of appeals had no difficulty
concluding that an estate continues. Neiman, 1 F.3d at 690-91.
Although the court of appeals in Neiman, 1 F.3d at 691, went on
to express agreement with Aneiro, that was unnecessary dicta as
the court of appeals had already concluded that it need not
decide precisely what the estate included.
In an attempt to distinguish § 1327(b) from 11 U.S.C. §
1141(b) (which provides for vesting of the property of the estate
in the debtor upon confirmation of a plan under chapter 11), the
court of appeals in Neiman noted that in contrast to a chapter 13
case, confirmation of a plan in a chapter 11 case acts as a
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discharge. 1 F.3d at 691. However, that is a distinction
without meaning for purposes of evaluating whether an estate
continues to exist. As the Code's chapter 7 provisions
demonstrate, a debtor's discharge has nothing to do with whether
a bankruptcy estate continues in existence: in a chapter 7 case
the trustee continues to administer the estate and to liquidate
it for the benefit of creditors even after the debtor receives a
discharge. See 11 U.S.C. §§ 704(a) and 727; F.R. Bankr. P. 4004.
Moreover, analogous to what occurs in a chapter 13 case, in a
chapter 11 case the debtor may be obligated by the confirmed plan
to make specific payments on the creditors' claims, with the
creditors looking to the property re-vested in the debtor as
facilitating the debtor's performance under the plan and as a
source of collection in the event of a default. The real
distinction between the two chapters of relevance to the instant
dispute is that a trustee continues in place in a chapter 13
case, and she administers plan payments in her possession as
estate property. Here, we are dealing with real property, not
the plan payments the trustee possessed.
Because the 2nd Street Property was property of the estate
immediately prior to confirmation of Wilson's amended plan, the
2nd Street Property ceased under both Petruccelli and Barbosa to
be property of the estate upon confirmation of the plan.
Accordingly, Wilson's execution in 2004 of the deed and the deed
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of trust relating to the 2nd Street Property was not an act
relating to property of the estate.
B.
Wilson's supplemental memorandum paints the defendants as
greedy predatory lenders who took unfair advantage of a
distressed debtor. Wilson argues that it is for this reason that
even after confirmation of his plan, the 2nd Street Property
ought to be treated as having been estate property entitled to
the protections that the Bankruptcy Code accords estate property.
However, Wilson could have written his plan to accord himself
that protection by including a provision delaying the vesting of
the 2nd Street Property in himself until after all plan payments
were completed. The interpretation of § 1327(b) does not vary
depending upon whether the postconfirmation creditor acted
unscrupulously in obtaining an interest in the property at issue.
C.
It follows that the Bankruptcy Code provisions upon which
Wilson relies in attempting to void the deed and the deed of
trust are inapplicable to the extent their applicability depends
on the 2nd Street Property having been “property of the estate”
at the time of execution of those instruments. Nor are those
provisions applicable on any other basis.
First, the automatic stay of § 362(a) stays three categories
of acts:
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7 The court granted Wilson a discharge in his bankruptcy
case on July 1, 2005. That terminated the automatic stay of §
362(a) as applicable to acts other than an act against property
of the estate. 11 U.S.C. § 362(c)(2). Accordingly, at this
time, no automatic stay is in place regarding either the 2nd
Street Property as property of the estate or acts against Wilson
or against Wilson's property.
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• certain acts against property of the estate,
• certain acts relating to claims or judgments against
the debtor that arose or were obtained before the
commencement of the case, and
• the commencement or continuation of a proceeding
against the debtor that was or could have been
commenced before the commencement of the case.
As it related to acts against the 2nd Street Property as property
of the estate, the automatic stay terminated when the 2nd Street
Property ceased to be property of the estate by reason of its
having vested in Wilson in May 2001 incident to the confirmation
of Wilson's amended plan. 11 U.S.C. § 362(c)(1).7 The
defendants did not have a prepetition claim or judgment against
Wilson, and they did not commence or continue a proceeding
against Wilson (let alone one that was or could have been
commenced before the commencement of the case).
Second, § 363 deals with the use, sale, or lease “of
property of the estate.”
Third, § 364 deals with a trustee's obtaining credit
“allowable under section 503(b)(1) as an administrative expense”
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8 Moreover, § 364 is inapplicable to a debtor's obtaining
credit unless the debtor is “engaged in a business” and thus
authorized by 11 U.S.C. § 1304(b) to exercise the rights and
powers of a trustee under § 364. Wilson has not alleged that he
was engaged in a business. If he had been engaged in a business,
he would have been required to file reports regarding operation
of that business as required by 11 U.S.C. §§ 1304(c) (making the
reporting requirements of 11 U.S.C. § 704(8) applicable to a
chapter 13 debtor engaged in a business). He filed no such
reports.
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or secured by a lien “on property of the estate.” The defendants
are not asserting an administrative claim in the case, and their
lien is on the debtor's property, not on property of the estate.8
Finally, § 549 deals exclusively with transfers “of property
of the estate.”
III
After the initial preparation of this order, and after the
deadline for memoranda had expired, the defendants filed, without
leave of court, a supplemental memorandum in support of their
position. The supplemental memorandum is rejected both as
untimely and as advancing an erroneous argument. The defendants
argue that the 2nd Street Property ceased to be property of the
estate when Wilson claimed as exempt from property of the estate
under 11 U.S.C. § 522(b) his equity in the property and no one
timely objected to the exemption under 11 U.S.C. § 522(l).
However, an exemption of less than the full value of a property
from the estate does not operate to exempt the property in its
entirety from the estate. See In re Bregni, 215 B.R. 850 (Bankr.
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18	O:\JUDGTEMP\Wilson vs Home Savers, LLC Final Decision re Mtns for Summary Jdgtv2.wpd
E.D. Mich. 1997).
IV
Summary judgment in favor of the defendants is appropriate.
A judgment in favor of the defendants follows. Because the
defendants failed to raise the ground upon which the court is
granting judgment in the defendants' favor, the judgment will
direct that the parties shall bear their own costs.
[Signed and dated above.]
Copies to:
All counsel of record; Honorable John D. Bates.
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