United States v. Hartog
United States v. Hartog
Opinion of the Court
THIS CAUSE came before the Court upon Appellant's Notice of Appeal from the United States Bankruptcy Court for the Southern District of Florida (D.E. 1) , filed on May 9, 2018.
THE COURT has considered the briefs and the pertinent portions of the record, and is otherwise fully advised in the premises.
I. Overview
This is an appeal of the United States Bankruptcy Court's Order granting Trustee's Rule 9019 Motion to Approve Settlement with Rivero Investment Group, Inc. and Continental Duty Free Inc. As part of the settlement, the Bankruptcy Court issued a bar order that is limited to claims arising out of or relating to any of the facts, occurrences, or transactions alleged or which could have been alleged by Trustee. The United States, a non-settling party, is the only party objecting to the settlement. The Government wants to pursue nominee claims against the settling non-debtor parties to collect money from the sale of a warehouse, because in its view, there are sale proceeds that belong to the Debtor. The Government wants to collect the proceeds from the warehouse in order to collect the full tax that is owed by the Debtor. As part of the settlement, the United States will receive its pro rata share, which it argues should be more considering the sale of the warehouse.
The appeal presents three issues: (1) whether the Bankruptcy Court abused its discretion in approving the settlement and bar order; (2) whether an adversary proceeding was necessary for the Bankruptcy Court to issue a bar order as part of the settlement; and (3) whether the Anti-Injunction Act prohibited the Bankruptcy Court from issuing the bar order in question as part of the settlement. The Court concludes that the settlement agreement and the bar order are a reasonable, fair, and equitable resolution to the dispute, and are consistent with the factors set out in Matter of Munford, Inc.,
II. Background
On October 15, 2015, Debtor Exporther Bonded Corp., filed a voluntary Chapter 11 petition. Debtor is a ship chandelling company that was formed in 1979. During the pendency of the Chapter 11 proceedings, the United States, through the Alcohol and Tobacco Tax and Trade Bureau, was *677deemed by the Bankruptcy Court to hold an allowed claim against the Debtor's estate totaling $ 1,746,321.36. On November 15, 2016, the case was converted to a Chapter 7 petition, and Ross Hartog was appointed as Trustee.
Continental Duty Free and Rivero Investment Group are the non-debtor settling parties in this action. Continental Duty Free and Rivero Investment Group were formed in June 1987 and May 1992, respectively. The officers, directors, and persons in charge of the Debtor included Jorge Rivero, Juan Rivero, and Jorge Rivero Jr. The Riveros also owned and controlled Rivero Investment Group and Continental Duty Free.
On October 2012, Rivero Investment Group purchased real property comprising of a warehouse located at 2323 Northwest 72nd Avenue, Miami, Florida 33122 from which the Debtor operated its business. Rivero Investment Group and Continental Duty Free also operated from the same property. The Debtor funded approximately $ 217,000 toward the purchase deposit, while the Riveros and Continental Duty Free contributed approximately $ 650,000 toward the purchase deposit. The balance of the purchase was funded through loans obtained from Bank of America and the Florida Business Development Corporation, both of which were backed by the U.S. Small Business Administration. The loans were secured by mortgages on the property and personally guaranteed by Jorge Rivero, the Debtor, and Continental Duty Free.
Rivero Investment Group rented the property to the Debtor and to Continental Duty Free, and collected rent in amounts sufficient to cover the monthly mortgage payments. The Debtor's books and records did not support a finding of insolvency, nor did the Debtor appear to believe that it owed any taxes to the Government at the time of the purchase of the property in October 2012. During the bankruptcy case in 2017, the property was sold, resulting in $ 4 million in sales proceeds.
The Debtor's schedules, books, and records reflect that as of the petition date, Rivero Investment Group owed the Debtor $ 890,000. After the property was sold, the Trustee investigated potential claims against Rivero Investment Group and Continental Duty Free, and then informally asserted various claims against those two parties for proceeds from the sale of the property, including claims based on avoidable transfers, breach of contract, nominee theory, alter ego, and equitable lien. The Trustee eventually entered into a pre-suit settlement with the Rivero Investment Group and Continental Duty as to the estate's potential claims. Under the pre-suit settlement, Rivero Investment Group and Continental Duty agreed to pay $ 965,000 to the Debtor's bankruptcy estate. The settlement was contingent upon the entry of a bar order, which would enjoin creditors from pursuing the settling parties or their properties arising out of or relating in any manner to any of the facts, occurrences or transactions alleged or which could have been alleged by the Trustee or that arise out of or relate in any way to the Debtor, the bankruptcy case, or any claims available to the bankruptcy estate of the Debtor.
On January 2, 2018, the Trustee filed a motion pursuant to Bankruptcy Rule 9019 to approve the settlement and bar order. Fed. R. Bankr. P. 9019. The United States was the only party that objected to the settlement. The United States wants to pursue claims against the settling non-debtor parties to collect money from the sale of the Property, because in its view, there are sale proceeds that belong to the Debtor. It wants these sale proceeds in order to collect the full tax owed by the *678Debtor. In its objection, the Government conceded that their claims belonged to the bankruptcy estate. On February 6, 2018, the Bankruptcy Court held a hearing on the Trustee's motion to approve the settlement. Following the hearing, Judge Robert Mark entered an order ruling that the terms of the settlement were reasonable under the In re Justice Oaks II, Ltd.,
On April 25, 2018, the Bankruptcy Court entered a bench ruling approving the settlement and bar order, followed by a written order dated April 27, 2018. In its order, the Bankruptcy Court found that the Trustee adequately and properly considered the risks and benefits of pursuing litigation versus a settlement. Judge Mark further found that the settlement was negotiated, proposed, and entered into at arm's length, without fraud or collusion and in good faith. The Bankruptcy Court ultimately found that the bar order was fair and equitable and consistent with public policy.
III. Legal Standard
The District Court must affirm the Bankruptcy Court's findings of fact unless they are clearly erroneous, but its conclusions of law, however, are reviewed de novo . See Mohorne v. Beal Bank, S.S.B.,
IV. Legal Analysis
Appellant United States argues that the Bankruptcy Court's order approving the settlement is erroneous for three reasons: (1) the order granting the motion to approve the settlement was not fair and equitable to creditors, including the Government, because it allowed Debtor's insiders to retain $ 3,000,000 in sales generated from the sale of real property paid for by the Debtor; (2) the Bankruptcy Court erroneously issued an injunction outside the context of an adversary proceeding, which is required under Bankruptcy Rule 7001(7); and (3) the order improperly bars the government from taking post-bankruptcy collection action in violation of the Anti-Injunction Act,
In response, Rivero Investment Group, Continental Duty Free, and Trustee argue that (1) the settlement, including the bar order, was fair and equitable, (2) a bar order as part of a settlement can be approved outside an adversary proceeding and (3) the Anti-Injunction Act does not prevent the entry of the bar order because this case is not about discharging tax liability. For the reasons set forth, this Court agrees with the Appellees and affirms the Bankruptcy Court.
A. The Settlement Agreement and the Bar Order are Fair and Equitable
Bankruptcy Rule 9019 provides that, after conducting a hearing on notice to creditors, the Bankruptcy Court may approve a compromise or settlement. Fed. R. Bankr. P. 9019 ; see also In re Morgan, No. 10-60373-CIV,
A bankruptcy court does not abuse its discretion in approving a settlement agreement unless the agreement falls below the lowest point in the range of reasonableness. See In re Morgan,
The Eleventh Circuit has held that Bankruptcy Code Section 105 and Rule 16 of the Federal Rules of Civil Procedure, authorize bankruptcy courts to enter bar orders, where such orders are integral to settlement in an adversary proceeding. See Matter of Munford, Inc.,
1. The Bankruptcy Court did not abuse its discretion in approving the Settlement
The record demonstrates that the Bankruptcy Court examined the proper factors and made an informed and independent judgment, concluding that the compromise did not fall below the lowest point in the range of reasonableness. The Bankruptcy Court reasonably examined that the Trustee exercised sound business judgment after evaluating the strength and weaknesses of the potential claims and the cost and time it would take to litigate the claims.
The Bankruptcy Court considered the first Justice Oaks factor - the probability of success in the potential litigation on claims against Rivero Investment Group and Continental Duty Free-and concluded that prevailing on the claims would be difficult. See In re Chira,
The Bankruptcy Court also considered the second Justice Oaks factor-collection difficulties for the Trustee-and determined that there was a concern about collectability of any judgment against Continental Duty Free, because it may no longer by an operating entity. See In re Chira,
As to the fourth factor, the record supports that the settlement was clearly in the best interest of the creditors, including the United States, as prolonged litigation would only diminish the estate's assets. Furthermore, the Bankruptcy Court noted the fact that the Government is going to recover its pro rata share of the settlement.
All of the relevant Justice Oaks factors support the Bankruptcy Court's decision to approve the settlement agreement, therefore the Court agrees that the Bankruptcy Court did not abuse its discretion in approving the settlement agreement.
2. The Bar Order is Fair and Equitable
The bar order included in the settlement agreement would enjoin all creditors, including the United States, from pursuing the settling parties and their officers, directors, and agents, the released parties, from any claims arising out of or related to the claims that the Trustee could have brought, but instead settled through the settlement agreement. When determining whether to enter a bar order against a non-settling party, the bankruptcy court must reasonably determine that the bar order is fair and equitable. U.S. Oil & Gas v. Wolfson,
a) Public Policy Favors the Bar Order and the Settlement Satisfies Justice Oaks
The Court first notes that public policy strongly favors pretrial settlement in all types of litigation. Munford,
b) Interrelatedness of the Claims
The first Munford factor that a bankruptcy court must consider is whether the non-debtor third-party claims, which will be barred, are "interrelated" with the estate's claims. See Munford,
The Bankruptcy Court correctly concluded that the claims enjoined by the bar order are interrelated with the Debtor's bankruptcy proceedings. The claims subject to the bar order are interrelated with the claims asserted by the trustee, as described in the bar order language. The bar order is limited to claims arising out of or relating to any of the facts, occurrences, or transactions alleged or which could have been alleged by trustee. Additionally, the record demonstrates that the claim the Government hopes to preserve would be property of the bankruptcy estate, hence any recovery, or in this case settlement, of the claim comes into the estate for the benefit of all creditors, including the United States.
c) The Difficulty and Complexity of the litigation, and Whether the Estate's Resources will be Depleted
The second Munford factor considers the likelihood of non-settling defendants to prevail on barred claims. See Munford,
B. An Adversary Proceeding is Not Necessary for the Bankruptcy Court to Issue a Bar Order as Part of a Settlement Agreement
The United States argues that under Rule 7001(7), the Bankruptcy Court may issue an injunction only in the context of an adversary proceeding, and whereas here, no adversary proceeding has been filed, injunctive relief may not be granted. Fed. R. Bankr. P. 7001(7). The Appellees instead argue that bar orders have been approved in this Circuit as part of a settlement agreement. The Court agrees with Appellees that no adversary proceeding is necessary for the entry of a bar order pursuant to a Rule 9019 motion for approval of a settlement.
Section 105(a) of the Bankruptcy Code provides that "[t]he court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions" of the bankruptcy code.
The Eleventh Circuit has held that a bar order may be entered pursuant to a Rule 9019 motion for approval of a settlement without there being an adversary proceeding instituted against the enjoined party. See In re Superior Homes & Investments, LLC,
Moreover, a district court in the Eleventh Circuit explicitly rejected Appellant's argument that the bankruptcy court's approval of the bar order outside the context of an adversary proceeding contravened bankruptcy Rule 7001(7). See In re Land Res., LLC,
In support of its appeal, the Government cites to In re S. Inst. for Treatment & Evaluation, Inc.,
Accordingly, along with the fact that Section 105(a) allows the bankruptcy court to enter "any order" necessary or appropriate to carry out the provisions of the Bankruptcy Code and the fact that Rule 16 authorizes the use of special procedures to assist the parties in reaching a settlement, *684this Court will follow precedent and hold that the Bankruptcy Court had authority to issue the bar order as part of a settlement outside the context of an adversary proceeding.
C. The Anti-Injunction Act Does Not Prohibit the Bankruptcy Court's Ability to Approve a Trustee's Settlement of a Debtor's Claim against Non-debtors, where a Material Term of the Settlement is an Injunction of Third-Party Claims Arising from the Same Alleged Acts
The United States contends that bar orders to enjoin the assessment or collection of taxes are prohibited by the "anti-injunction" statute and hence that the Bankruptcy Court was without jurisdiction to issue such an injunction.
To reinforce its argument that the Anti-Injunction Act prohibits the bar order at issue, the Government cites to a handful of cases outside this circuit. Not only are these cases not binding, this Court also finds those cases as distinguishable. First, the Government cites to Matter of LaSalle Rolling Mills, Inc.,
The Government cites to two district cases in the Eleventh Circuit, however, they are also dissimilar to this case.
V. Conclusion
The Court finds that the Bankruptcy Court did not abuse its discretion in approving the settlement, that it had authority to issue the bar order as part of the settlement outside the context of an adversary proceeding, and that the Anti-Injunction Act does not prevent the type of bar order at issue. Accordingly, it is
ADJUDGED that the Bankruptcy Court's Order Granting Trustee's Motion to Approve Settlement with Rivero Investment Group, Inc. and Continental Duty free, Inc. entered on April 27, 2018 is AFFIRMED.
DONE AND ORDERED in Chambers at Miami, Florida, this 20th of March 2019.
In its objection, the Government also conceded that its claim is property of the bankruptcy estate.
In Zale Corp., the bankruptcy court entered an order approving a settlement and enjoining third-party claims against insurer. The Fifth Circuit later held that to temporarily enjoin third-party actions against insurer, no such injunction could be issued absent an adversary proceeding, in which complaint was filed and served on each affected party; an injunction could not simply be added to a settlement agreement, without notice to affected parties and opportunity to be heard. Matter of Zale Corp.,
Section 7421(a) of the 1954 Internal Revenue Code provides: "Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."
Additionally, the United States cites to MCorp, however that case is distinguishable because it deals with the financial institution supervisory act, not the anti-Injunction Act that is at issue in this appeal. See MCorp, Inc. v. Bd. of Governors Fed. Reserve Sys. of U.S.,
This Court believes it is important to note that in In re William Netherly, the court held that The Anti-Injunction Act,
The Eleventh Circuit recently stated that when the Anti-Injunction applies, it deprives federal courts of jurisdiction, however this Court holds that the anti-injunction act does not apply, therefore the bankruptcy court still has jurisdiction to enter the bar order. Furthermore, that case did not deal with a bar order as part of a settlement to enjoin bankruptcy estate claims. See In re Walter Energy, Inc.,
The Government cites to Bostwick, which holds that the bankruptcy court has authority to enjoin tax collection notwithstanding the Anti-Injunction Act, however, even if this Court was not to follow that opinion, the bar order would still be admissible. See Bostwick v. United States,
Reference
- Full Case Name
- United States v. Ross R. HARTOG, Chapter 7 TRUSTEE FOR the BANKRUPTCY ESTATE OF EXPORTHER BONDED CORP., Rivero Investment Group, and Continental Duty Free
- Cited By
- 3 cases
- Status
- Published