Burciaga v. Moglia (In re Burciaga)
Burciaga v. Moglia (In re Burciaga)
Opinion of the Court
George Burciaga (the "Debtor") filed a two-count adversary complaint in his bankruptcy case against Alex D. Moglia (the "Trustee"), as chapter 7 trustee for the bankruptcy estate, seeking a determination that certain severance pay (the "Severance Pay") is not property of the estate under
JURISDICTION
The Court has jurisdiction over this matter pursuant to
BACKGROUND
The material facts in this case are few and undisputed. Those facts, gleaned from the relevant pleadings and the exhibits attached thereto, are as follows.
On or about May 1, 2018, the Debtor was laid off from his job at CIVIQ Smartscapes, LLC ("CIVIQ"). (Answer ¶ 8.
On May 8, 2018, the Debtor filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code.
JUDGMENT ON THE PLEADINGS STANDARD
The parties' cross-motions for judgment on the pleadings were filed under Rule 12(c), made applicable to adversary proceedings pursuant to Federal Rule of Bankruptcy Procedure 7012(b). Under Rule 12(c), judgment on the pleadings may be granted if the movant clearly shows that there are no material issues of fact in dispute and that the movant is entitled to judgment as a matter of law. Nat'l Fid. Life Ins. Co. v. Karaganis ,
In ruling on a motion for judgment on the pleadings, a court must view the facts in the light most favorable to the nonmoving party but is not bound by that party's legal characterizations of the facts. See
As set forth above, there are no material facts in dispute in this matter. Thus, the only question to be considered is whether either party is entitled to judgment as a matter of law.
DISCUSSION
Pursuant to § 541(a), the filing of a bankruptcy case creates an estate comprised of the debtor's property.
Section 541(a)(6) expands the scope of the definition of "property of the estate" to *430include not only property interests of the debtor as of the commencement of the case, but also "[p]roceeds, product, offspring, rents, or profits of or from property of the estate."
The issue before the Court is whether the Severance Pay is property of the bankruptcy estate under § 541. The Debtor argues that the Severance Pay is not property of the estate because his receipt of that Pay is contingent on his agreement to execute the Separation Agreement and his subsequent compliance with the post-petition conditions outlined therein. According to the Debtor, the Severance Pay is thus a "continuation of income" excluded from the estate under § 541(a)(6). The Trustee disagrees. Relying on Segal v. Rochelle ,
A. The "Sufficiently-Rooted" Test
Over fifty years ago, the United States Supreme Court explained that the "main thrust" of what is now § 541 of the Code "is to secure for creditors everything of value [that the debtor] may possess in alienable or leviable form when he files his petition." Segal ,
Based on these principles, the Supreme Court found that, in determining if an asset is property of the estate, the proper inquiry is whether the asset is "sufficiently rooted in the pre-bankruptcy past and so little entangled with the [debtor's] ability to make an unencumbered fresh start that [the asset] should be regarded as 'property' " under what is now § 541.
B. Application of the Test
Based on a review of the pertinent facts, the Court finds that a portion of the Severance Pay is "sufficiently rooted" in the Debtor's pre-bankruptcy past that it constitutes property of the Debtor's bankruptcy estate. Specifically, prior to the filing *431of his bankruptcy petition, the Debtor was presented with the Separation Agreement under which he was offered the Severance Pay. The offer of Severance Pay is consistent with the various terms of the Debtor's employment agreement, which was executed pre-petition. And, by its very nature, the Severance Pay offer is related to the separation of the Debtor from his employment, that separation also having occurred before the bankruptcy filing. In short, the Debtor has a right to the Severance Pay because that Pay is associated with the pre-petition termination of his pre-petition employment.
Notwithstanding the foregoing, the Severance Pay also bears a number of post-petition characteristics. First, the Debtor did not sign the Separation Agreement under which the Severance Pay was offered until after filing his chapter 7 petition. As a result, any Severance Pay that he receives was and will continue to be paid to him post-petition. Most importantly, various post-petition actions and obligations under the Separation Agreement are conditions to the Debtor's pre-petition right to receive the Severance Pay. Specifically, the Agreement conditions the Debtor's right to receive the Pay on, among other things, the following:
(1) Cooperating with CIVIQ:
(a) assisting CIVIQ with any matters related to the services performed during the Debtor's employment, including transitioning his duties to others;
(b) cooperating with CIVIQ in the defense or prosecution of any lawsuit, investigation, or third-party claim or action in existence or which may be brought or threatened in the future against or on behalf of CIVIQ by, among other things, (i) meeting with CIVIQ and its legal counsel to prepare for any proceeding, (ii) providing affidavits and/or testimony, (iii) assisting with audits and inspections, and (iv) acting as a witness in connection with any litigation or other legal proceeding affecting CIVIQ; and
(c) promptly informing the president or HR representative of CIVIQ in writing in the event that the Debtor is contacted by any individual representing any party adverse to the business interests of CIVIQ, including anyone threatening any form of legal action against CIVIQ.
(2) Returning Property, Affirming Covenants, Refraining from Making Disparaging Statements:
(a) returning to CIVIQ all company property, including computer equipment, software, and access codes, as well as company files and documents;
(b) abiding by all common law and/or statutory obligations related to the protection and non-disclosure of CIVIQ's trade secrets and/or confidential and proprietary documents and information;
(c) continuing to comply with the confidentiality and non-compete restrictions set forth in the Debtor's pre-petition employment agreement; and
(d) not making any statements that are professionally or personally disparaging about, or adverse to, the interests of CIVIQ and its officers, directors, and employees.
(3) Releasing Claims: Agreeing to a broad release of any and all legal claims that the Debtor may have against CIVIQ, including fair employment *432practices, breach of contract, and age discrimination claims.
(Compl., Ex. A, §§ 3-6.) Only by signing the Separation Agreement, and thereby agreeing to the provisions thereunder, was the Debtor entitled to receive any Severance Pay. If he did not sign the document and agree to the post-petition conditions, the Debtor would receive nothing. Because the Separation Agreement requires the Debtor to perform certain post-petition services, the portion of the Severance Pay related to those services must be excluded from the estate under the post-petition earnings exception of § 541(a)(6).
Relying on In re Jokiel , the Trustee contends that the exception is not applicable here because the terms of the Separation Agreement do not require the Debtor to perform any "affirmative acts." Specifically, the Trustee argues, not competing against CIVIQ and releasing potential claims against the company do not constitute "services actually performed" by the Debtor to bring the Severance Pay within the ambit of § 541(a)(6)'s exception.
In Jokiel , the debtor was employed pursuant to an employment agreement which included, inter alia , a non-compete provision.
Applying the Supreme Court's "sufficiently rooted" test, the Jokiel court found that "the majority of the severance payment" was " 'sufficiently rooted in the pre-bankruptcy past' " that it constituted property of the debtor's bankruptcy estate.
*433The court concluded that "not engaging in certain specified activities cannot be considered a 'service performed.' "
In reaching that conclusion, the Jokiel court contrasted requirements to abstain from action with even minimal affirmative obligations needed for a service to be excepted under § 541(a)(6) by examining In re Haynes ,
In this matter, the Debtor, like the one in Jokiel , must "abstain[ ] from action" pursuant to the non-compete and claims release provisions of the Separation Agreement. However, if called upon, the Debtor is also required to perform a great number of affirmative acts, some of which could obligate him for years, in order to receive the Severance Pay. Accordingly, the Court concludes that a portion of the Severance Pay constitutes post-petition services under the exception to § 541(a)(6).
C. Allocation of the Severance Pay
Having found that the Severance Pay is both pre-petition property of the bankruptcy estate and post-petition earnings for services excluded therefrom, the Court must determine how to allocate that Pay between the estate and the Debtor. When "proceeds" arise both from post-petition services performed by an individual debtor and from other estate assets, "[t]he application of the post[-]petition earnings exception requires a proportional division." Taronji ,
As discussed above, the Debtor has a right to the Severance Pay based on his pre-petition employment and termination. However, the Separation Agreement, executed after the bankruptcy filing, requires the Debtor to perform various affirmative acts post-petition, including transitioning his duties to others at CIVIQ and meeting with CIVIQ and its legal counsel to prepare for the defense or prosecution of litigation or other legal action, now or in the future. While the Debtor may never be called upon to perform these and other services, it is also possible that CIVIQ will reach out to him and that he will be obligated for years to come.
Given the hybrid nature of the Severance Pay and the fact that the Debtor's post-petition obligations could last for years, the Court determines that a fair allocation of the Severance Pay between the bankruptcy estate and the Debtor is 50/50. As a result, the Debtor's motion for judgment on the pleadings will be granted *434in part, with 50% of the Severance Pay being deemed post-petition earnings excluded from the estate under § 541(a)(6), and the Trustee's motion for judgment on the pleadings will be granted in part, with 50% of the Severance Pay being deemed property of the estate under § 541(a)(1).
CONCLUSION
For the foregoing reasons, the Court finds that half of the Severance Pay is property of the Debtor's bankruptcy estate and half constitutes earnings excluded therefrom. Accordingly, both of the parties' motions for judgment on the pleadings will be granted in part and denied in part. A separate order will be entered consistent with this Memorandum Opinion.
Unless otherwise noted, all statutory and rule references are to the Bankruptcy Code,
Unless otherwise noted, all references to the record are to Adv. No. 18-00212.
The documents are inconsistent as to the date on which the Separation Agreement was offered to the Debtor. In his motion for judgment on the pleadings, the Trustee states-and the Debtor does not dispute-that the Agreement was offered on May 5, 2018. (Tr.'s Mot. ¶ 4.) The Separation Agreement, itself, however, is dated May 4, 2018 and includes a notation at the top of page 1 indicating that it was sent via both email and overnight delivery on May 3, 2018. (See Compl., Ex. A at 1.) In any event, the parties do not contest that the Agreement was offered to the Debtor prior to the filing of his bankruptcy petition.
The employment agreement relevant to this matter is the one dated January 26, 2016, as modified by the "Second Amendment to Employment Agreement" dated February 28, 2018. (Compl., Ex. B.)
Pursuant to the Separation Agreement, this amount is to be paid to the Debtor in biweekly installments, beginning within two weeks of June 19, 2018, the effective date of the Agreement. (Compl., Ex. A, §§ 2 & 9.)
The parties assert that the Debtor filed his petition on May 7, 2018 (Answer ¶ 9), but the docket reflects a filing date of May 8, 2018. (See Bankr. No. 18-13481, Docket No. 1.)
Reference
- Full Case Name
- IN RE: George BURCIAGA, Debtor. George Burciaga v. Alex D. Moglia, not individually but as chapter 7 trustee for the bankruptcy estate of George Burciaga
- Cited By
- 3 cases
- Status
- Published