Kent v. McDermott (In re Kent)
Kent v. McDermott (In re Kent)
Opinion of the Court
David M. Kent, a former plastic surgeon, filed a Chapter 7 bankruptcy petition, listing among his debts certain obligations that resulted from a state court action for separate maintenance. Kent's estranged wife, Linda Kent, filed an adversary proceeding complaint alleging fraud and challenging dischargeability. After Linda's attorney was allowed to withdraw, and her own enthusiasm for the case waned, the bankruptcy court allowed the United States Trustee to substitute as the plaintiff in the adversary proceeding and contest the discharge. David Kent appeals the substitution order, contending that the bankruptcy court abused its discretion by allowing the substitution. This Court has jurisdiction over the appeal and affirms the bankruptcy court's order.
I.
David Kent filed his bankruptcy petition on November 18, 2016. In his schedule of liabilities, he disclosed more than $53 million in unsecured obligations, many of which were personal guarantees for the debts of a defunct business. He also listed substantial assets including several homes - one valued at $4 million - artwork valued at more than $30,000, and *866furniture worth more than $26,000. The Chapter 7 trustee suspected that Kent had concealed and was disposing of assets outside the bankruptcy process, and on January 4, 2017 she filed a motion for access to Kent's houses to inspect and preserve any property she found there. The bankruptcy court granted that motion.
Linda Kent filed her adversary proceeding complaint on May 26, 2017 objecting to the discharge. She alleged that the Kents were involved in a separate maintenance proceeding in state court, and that as part of the settlement David Kent had procured an agreement to have certain proceeds of an insurance policy deposited into a joint account, thereafter to be paid to him periodically as "spousal support." Linda contended that David orchestrated that arrangement to conceal those funds from his creditors in the bankruptcy case; she said those funds actually comprised marital property that was divided between the spouses under the divorce settlement agreement. The agreement also divided other property, including two homes that were to be sold, with the estimated proceeds of between $5 million and $8 million to be split between the spouses with 60% going to David and 40% to Linda. The complaint also alleged that certain valuable personal property was to be sold by a court-appointed receiver, with 50% of the proceeds going to Linda. However, Linda alleged, David had not performed under the agreement and had either taken possession of or sold and pocketed the proceeds from numerous items of marital property.
In Count I of her complaint, Linda contended that a discharge of obligations owed to her should not be granted because they are "domestic support obligation[s]," see
David filed a motion to dismiss the adversary complaint, in which he argued that Linda lacked standing to bring the action. He reasoned that because all of his debts to her were non-dischargeable under
On May 8, 2018, Linda Kent's attorneys in the adversary proceeding filed a motion to withdraw, which the bankruptcy court *867granted. On May 31, 2018, the United States Trustee filed a motion for leave to substitute as the plaintiff in the adversary proceeding. The bankruptcy court granted the motion after it concluded that the substitution would not result in any substantive alteration in the issues presented or any delay in the trial. The Trustee merely sought to advance some of the same claims that originally were pleaded by Linda Kent in her complaint (but not including the claims based on sections 523(a) ), on which discovery already had been concluded.
David Kent filed his notice of appeal two days later.
II.
David Kent backed up his notice of appeal with a motion for permission to appeal, covering a potential jurisdiction al challenge with belt and suspenders. The district court has appellate jurisdiction over a bankruptcy court's "final judgments, orders, and decrees," certain interlocutory orders not involved here, and other interlocutory orders when leave of court is granted.
Discretionary appeals are allowed if the district court finds that "(1) the order implicates a question of law on which there is no 'controlling' authority and it involves a 'matter of public importance'; (2) the order implicates a legal question 'requiring resolution of conflicting decisions'; or (3) an immediate appeal from the order will 'materially advance' the case." William Edwin Lindsey v. Pinnacle National Bank (In re Lindsey) ,
David Kent's motion for permission to appeal will be granted. The Court has jurisdiction over the merits of the case.
III.
On an appeal of a bankruptcy court's ruling to the district court, "the *868bankruptcy court's legal conclusions [are reviewed] de novo and its factual findings for clear error." In re: Modern Plastics Corp. ,
David Kent offers several technical reasons for his belief that the bankruptcy court abused its discretion when it allowed the United States Trustee to substitute for Linda Kent as the adversary proceeding plaintiff. He says that (1) the motion to substitute was merely an attempt by the Trustee to evade the time bar for objections under Bankruptcy Rule 4004 (establishing a 60-day deadline after the first meeting of creditors for a complaint objecting to discharge in a chapter 7 case); (2) Bankruptcy Rule 7025 (which incorporates Federal Rule of Civil Procedure 25 ), does not allow substitution, since none of the pertinent circumstances contemplated by Rule 25 (death, incompetency, or transfer of interest) are present here; (3) there was no authority for granting a substitution where the original plaintiff merely abandoned the action to avoid her own further expense, rather than entering into a compromise or voluntarily dismissing the complaint; and (4) reprising the argument raised in the earlier motion to dismiss, the bankruptcy court lacked subject matter jurisdiction over the adversary complaint in the first instance because Linda Kent did not have standing to object to a discharge.
While responding to each of these granular arguments, the Trustee offers a more conceptualized view of the proceedings. He contends that even if there may not be a specific rule or statute that fits this precise scenario, there is plenty of law that would allow a United States Trustee to take over an adversary proceeding intended to prevent a dishonest debtor from obtaining a bankruptcy discharge. The Trustee has the better argument.
A.
Kent makes the point - probably correctly - that nothing in the substitution rule speaks to the present circumstances. That rule, Bankruptcy Rule 7025, assimilates Federal Rule of Civil Procedure 25 into adversary proceedings. Rule 25 prescribes procedures for substituting parties in four specific instances: death of a party, incompetency of a party, when a party's interest is transferred to another, and when a public officer who is a party in an official capacity separates from office. See Fed. R. Civ. P. 25(a)-(d). The United States Trustee argues that substitution might be allowed by viewing Linda Kent's abandonment of her claim as a transfer of that claim to the Trustee, invoking Rule 25(c). Hage v. Joseph (In re Joseph) ,
However, there is nothing in the language of Rule 25 that compels the conclusion that the four enumerated instances comprise the exclusive universe of possible grounds for substitution of parties. Substitution is allowed in other circumstances, especially in the context of actions under
Section 727 was enacted in part to ensure that bankruptcy protection is reserved only "to the 'honest but unfortunate debtor.' " In re Crawford ,
An objection to a discharge under section 727(a) based on fraud, perjury, concealment, and the like, even if made by a single creditor, questions the debtor's general right to any relief under the Bankruptcy Code. Therefore, such an objection extends beyond the interests of the objecting creditor and implicates the rights of all the debtor's creditors. See Butler v. Almengual (In re Almengual),
Some courts have found authority for substitution in Bankruptcy Rule 7041, which incorporates Federal Rule of Civil Procedure 41 into adversary proceedings, with an important addition: "a complaint objecting to the debtor's discharge shall not be dismissed at the plaintiff's instance *870without notice to the trustee, the United States trustee, and such other persons as the court may direct, and only on order of the court containing terms and conditions which the court deems proper." Fed. R. Bankr. P. 7041. One condition of dismissal courts occasionally employ is that " 'the debtor allow another party to pursue a § 727 complaint that was timely filed.' " Cantwell & Cantwell ,
Other courts have suggested that a creditor prosecuting an objection to a discharge under section 727(a) acts as a trustee of sorts for the benefit of all the other creditors, so that when the creditor discontinues the adversary proceeding, another creditor may be substituted as a plaintiff, even after the time for objections has expired. Ryan v. Thomas (In re Thomas),
It also has been suggested that the authority to allow substitution in a section 727(a) adversary proceeding stems from the court's equitable powers, invoked in the bankruptcy context by
Although rationales differ, courts have found authority for substitution in a section 727(a) adversary proceeding outside the scope of Bankruptcy Rule 7025. As one court summarized, "[w]hether the bankruptcy court's power to grant a party's motion to substitute in the place of the original plaintiff arises from Bankruptcy Rule 7041 itself (see, e.g. , In re Chalasani ,
In this case, the most direct authority for allowing substitution is Rule 7041, which allows the court to condition a dismissal upon continuation of the proceeding by the United States Trustee standing in the shoes of the former objector. Fed. R. Bankr. P. 7041 ; Cantwell ,
The policy concerns that animate the requirement of judicial scrutiny under that rule are similar to those that require court approval of dismissals in other forms of collective actions designed to secure the *871rights of absent plaintiffs, such as class actions under Federal Rule of Civil Procedure 23 - see Fed. R. Civ. P. 23(e) ("The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval.") - and collective actions under the Fair Labor Standards Act - see Lynn's Food Stores, Inc. v. United States Dep't of Labor ,
The policy objectives are the same: to prevent the abandonment of meritorious claims that could implicate the interests of less involved parties where one creditor acts initially to raise an objection to the discharge, but later wants to abandon the adversary litigation after a compromise of her individual claims against the debtor, possibly to the detriment of other creditors. Those objectives are present even when the adversary plaintiff abandons her case without a compromise or settlement payment. "[I]t is the intent of the Code and the Rules [not to] leave serious allegations of wrongdoing untried where those allegations are of a character to justify a denial of discharge and where a party, albeit one different from the original plaintiff, is ready, willing and able to continue the case to an adjudicated conclusion." In re McKissack ,
In this case, the record shows that if the Trustee had not been permitted to intervene, then the adversary case inevitably would have been dismissed either voluntarily or for want of prosecution. Linda Kent appeared before the bankruptcy court at the hearing and did not oppose the substitution, indicating that she no longer wanted or was able to pursue the case after her attorneys withdrew. Since the United States Trustee initially could have objected to David Kent's discharge under section 720(a), see
B.
David Kent contends that allowing the substitution at this stage of the proceedings is unfair because it allows the United States Trustee to avoid the time limitations for objecting to a discharge. Bankruptcy Rule 4004 establishes a 60-day deadline after the first meeting of creditors for filing a complaint objecting to a debtor's discharge in a chapter 7 case. But the substitution required the Trustee to take the case as he found it, bound by the pleadings and discovery orders that had been entered.
The Trustee has acknowledged these limitations. Linda Kent had filed her adversary proceeding on time. And the Trustee substituted as a plaintiff only for the claims brought under section 727(a). "[B]y limiting the substituted plaintiff to taking over the case in the posture that he finds it, for better or for worse, the [bankruptcy court] insure[d] that only those § 727 claims brought within the time constraints of Rule 4004 may be pursued." In re McKissack ,
C.
David also contends that the substitution is improper because the original plaintiff, Linda Kent, did not have standing to object to the discharge under section 727(a), since the debts to her were nondischargeable as having been incurred in a separation agreement. See
First , Linda did not limit her complaint to obligations for domestic support or debts David incurred "in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record."
Second , the bankruptcy court ruled in an earlier motion to dismiss brought under the same theory that although some of Linda's claims might not be dischargeable under section 523(a)(5) or (15), other claims were, as the property settlement did not cover them. David never sought an appeal from that ruling and the time for doing so has expired. The present appeal cannot serve as an end run permitting him to appeal an earlier order out of time.
IV.
Ample authority exists for allowing the United States Trustee to substitute in the place of Linda Kent to prosecute a nondischargeability claim under
Accordingly, the bankruptcy court's substitution order is AFFIRMED .
Reference
- Full Case Name
- IN RE David M. KENT, Debtor. David M. Kent v. Daniel M. McDermott, Trustee, and Linda Kent, Interested Party.
- Status
- Published