Messer v. Bentley Manhattan, Inc. (In re Madison Bentley Associates, LLC)
Messer v. Bentley Manhattan, Inc. (In re Madison Bentley Associates, LLC)
Opinion of the Court
MEMORANDUM OPINION
Before the Court are cross-motions for summary judgment in an adversary proceeding filed in the Bankruptcy Court. The trustee and the defendants cross-moved for summary judgment on the trustee’s claims (1) for a declaration that defendants Bentley Manhattan and Manhattan Motorcars are alter egos of the debtor corporation
Background
I. Facts
On March 21, 2000, defendant Brian Miller formed the debtor corporation, Madison Bentley Associates. He was and is Madison Bentley Associates’ sole owner.
The lease provided that the “Tenant shall use and occupy demised premises for automobile showroom for Rolls-Royce and Bentley motor cars and executive offices in connection therewith.” It provided also that MMC could assign or sublease the property with the owner’s consent or to permit a “Related Entity” to use the property upon notice to the owner. On July 18, 2000, MMC assigned the lease to the debtor with the Owner’s consent,
The Owner then was aware that MMC and the debtor both were newly formed entities and that they had no assets other than the lease and the apparent ability to operate a Rolls Royce and Bentley showroom on the premises. During the debt- or’s tenure, Bentley Manhattan — a defendant corporation owned by Miller that was not a party to the lease — wrote most of the monthly rent checks. Bentley Manhattan had three employees who worked at the premises, selling various Bentley accessories, while Manhattan Motorcars, yet another defendant corporation owned by Miller, owned the cars that were displayed there. On July 7, 2000, shortly before MMC assigned the lease to the debtor, the debtor and Bentley Manhattan obtained a certificate of insurance. The certificate listed the insured as “Bentley Manhattan Inc.” and “Madison Bentley Associates LLC.”
The debtor stopped paying rent on September 29, 2003, soon after the Millers’ three-year guarantees expired, and vacated the premises. The Owner sued the debt- or, Miller, and Miller’s father in New York State Supreme Court for damages for unpaid rent for the remainder of the ten-year lease. The state court dismissed the complaint as to the Millers but on June 24, 2009, awarded the Owner a $1.2 million judgment against the debtor.
Several months later, on September 11, 2009, the debtor filed a Chapter 7 bankruptcy petition, listing the Owner as its sole creditor. The trustee subsequently initiated this adversary proceeding against Miller, Bentley Manhattan, and Manhattan Motorcars.
Discussion
I. The Trustee’s Standing to Pursue a Veil Piercing Claim
The PFC proposed holding that the trustee does not have standing to seek a declaration that Bentley Manhattan and Manhattan Motorcars are alter egos of the debtor. It reasoned that “[t]he claim is an injury to a third party, namely the Owner, for the failure to pay rent. Indeed, it is undisputed that the Owner is the only creditor in this case. Thus, no other party, other than the Owner, will benefit from pursuit of this alter ego claim.”
A trustee has standing to assert a claim against a third-party if (a) it could have been asserted by the debtor pre-petition and (b) the “claim is a general one, with no particularized injury arising from it, and if that claim could be brought by any creditor of the debtor.”
The Court adopts the PFC’s proposal that the trustee has satisfied the first prong of the test. The weight of authority in New York holds that a corporation can assert a veil piercing claim against itself.
As to the second prong, the operative question is whether the trustee’s veil piercing claim properly is classified as being on behalf of the debtor corporation as opposed to the sole creditor. The Court holds that the trustee has standing because the claim belongs to the estate.
For one, the trustee has brought the veil piercing claim pursuant to Sections 541 and 542(a) of the Bankruptcy Code. Those provisions enumerate what constitutes property of the estate in bankruptcy and require entities that have “possession, custody, or control ... of property that the trustee may use, sell, or lease ... [to] deliver to the trustee, and account for, such property or the value of such property.”
The substance of the claim supports the Court’s holding as well. “Under New York law, a trustee may bring an alter ego cause of action on behalf of a corporate debtor in an attempt to collect property of the estate for the benefit of all creditors if such an action is not personal to any particular creditor.”
The Court notes also that the fact that there is only one creditor in this case does not automatically alter this result.
II. Fraudulent Conveyance
The Bankruptcy Court proposed granting the defendants’ motion for summary judgment on plaintiffs fraudulent conveyance claims based on its conclusions that (1) the debtor transferred its interest in the lease through a sublease or assignment when the defendant entities first started operating on the property and (2) the Owner had enough information that it should have investigated the possibility of fraud earlier than September 11, 2007.
The trustee objected. He argued that no conveyance took place in mid-2000 when the defendant corporations began occupying the premises because the debtor
He argued also that the statute of limitations should be tolled equitably because the Owner, in consequence of misrepresentations by the debtor, did not learn until the Chapter 7 case was filed that the debt- or had no legal right to operate a car dealership and that the dealership at the premises was operated by the defendant corporations. On essentially the same basis, he contends that the record does not support holding that the Owner knew about the fraud from as early as mid-2000.
A. Constructive Fraud
The Bankruptcy Court accurately set out the legal standard governing the statute of limitations for constructive fraud claims. Under the applicable New York state law, a constructive fraud action must be brought within six years of when “the fraud or conveyance occurs.”
The Bankruptcy Court concluded that “the conveyance occurred when the Defendants started using the Premises because that is when the Debtor allegedly conveyed the value of the property to the Defendants.” But that view ignores the nature of the apparent relationship among the parties and the nature of the transaction itself. The property’s value under the lease is alleged to have been its potential use as a showroom for Bentley and Rolls-Royce cars. Absent an actual assignment, sublease, or some other evidence demonstrating that the debtor and the defendants understood and intended to transfer that value from the debtor to the defendants fully and completely on the date that the occupancy began, there is no basis for holding that any transfer occurred at that time as opposed to continuously during the period of occupancy.
To the contrary, the parties concede that the transfer of rights of the debtor under the lease was “continual or ongoing.” The defendants do not contend that the transfer was an assignment or a sublease to them, let alone that it occurred pursuant to a written or even verbal agreement executed on X date and to run for any particular term or even on a month-to-month or other basis. Rather, it is undisputed that the arrangement among the debtor and the defendants was one in which the debtor effectively transferred its right under the lease to operate a car dealership or showroom to the defendants on each and every day that the defendants so used the premises. In effect, it was a license to use and profit from the property for which the debtor did not receive adequate consideration. As in Mills v. Everest Reinsurance Co.,
Finally, there is no question that the grant of a license to use real property constitutes a conveyance subject to fraudulent conveyance law. “ ‘Conveyance’ includes every payment of money, assignment, release, transfer, lease, mortgage or pledge of tangible or intangible property, and also the creation of any lien or incum-brance.”
Accordingly, the constructive fraudulent conveyance claims are not time barred to the extent that they accrued after September 11, 2003.
B. Actual Fraud
A claim for actual fraud is timely only if brought within six years of the date the fraud occurred or within two years from the date on which the plaintiff discovered or with reasonable diligence could have discovered the fraud.
In determining when the two-year notice period began to run, the Court must evaluate whether the undisputed evidence shows that the trustee (standing in the shoes of the Owner) had information from which to infer that there may have been a fraud before September 11, 2007.
As is noted above, the Bankruptcy Court proposed holding that the two-year discovery period began to run in mid-2000, when the defendant corporations first occupied the premises. This is based on its proposal that the Court hold that the Owner had sufficient notice of the fraud through its knowledge that (a) the debtor was a shell corporation without assets or income; (b) entities other than the debtor were operating a business on the premises; and (c) entities other than the debtor made rent payments.
The Court agrees that the undisputed evidence conclusively shows that the Owner had ample information before September 2007 from which to infer that there may have been a fraud and that it should investigate further. The Owner argues that while it knew that the debtor was a newly formed entity without assets at the time it received the lease assignment, it believed that the debtor had the ability to operate a car dealership or showroom and earn a profit therefrom. While that well may be true, there was ample evidence that Bentley Manhattan, Inc., not the debt- or, was operating on the premises. For example, Miller sent the Owner’s agent the certificate of liability insurance, which explicitly stated that the insured were “Bentley Manhattan Inc.” and “Madison Bentley Associates LLC.”
The trustee’s objections are overruled and the Court adopts the PFC’s proposal that the two-year notice period applicable to claims of actual fraud began to run in or about July of 2000 and had run by the time this action was initiated.
Conclusion
Plaintiffs motion for summary judgment is granted to the extent that the Court determines that the trustee has standing to bring the alter ego claims asserted in his first claim for relief. In all other respects, it is remanded to the Bankruptcy Court. Defendants’ cross-motion for summary judgment dismissing the complaint is granted to the extent that the trustee’s second and third claims for relief seek to recover proceeds of the defendants’ exer
SO ORDERED.
. Brian Miller owns the debtor and the two defendant entities entirely or in part.
. See Fed. R. Bankr. P. 9033; Adelphia Recovery Trust v. FLP Grp., Inc., 11 Civ. 6847(PAC), 2012 WL 264180, at *7 (S.D.N.Y. Jan. 30, 2012).
.The Bankruptcy Court concluded that the facts material to its determination of the motions were undisputed. The Court adopts its findings of facts. The following is a brief summary.
.Miller signed on behalf of both MMC and the debtor.
. Miller Aff. [10-ap-3487 DI 26], Ex. 9.
. DI 1 at 16.
. St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688, 701, 704-05 (2d Cir. 1989).
. In re Granite Partners, L.P., 194 B.R. 318, 324-25 (Bankr.S.D.N.Y. 1996).
. See In re Yerushalmi, 487 B.R. 98, 106 (Bankr.E.D.N.Y. 2012) (collecting cases).
. 11 U.S.C. §§ 541, 542(a).
. See Yerushalmi, 487 B.R. at 107 ("Part two of the St. Paul analysis of a bankruptcy trustee's standing to pursue an alter [ego] claim is also satisfied. The Trustee is asserting a generalized injury to all creditors and is seeking to recover property — which is allegedly property of the estate — for the benefit of all creditors. He bases his standing on sections 541, 542 and 704, not section 544. His standing in this case does not derive from an injury to any one particular creditor — a fact which is now underscored by the effective reversal of the Shiboleth judgment against the Debtor.”).
.03-35669 (CGM), 2005 WL 3789129 (Bankr.S.D.N.Y. Oct. 28, 2005).
. Kalb, Voohis & Co. v. Am. Fin. Corp., 92 Civ. 7754(RPP), 1993 WL 180368, at *6 (S.D.N.Y. May 24, 1993), aff'd 8 F.3d 130 (2d Cir. 1993) (quoting In re Harry C. Partridge Jr. & Sons, Inc., 112 B.R. 593, 596 (Bankr. S.D.N.Y. 1990)) (emphasis omitted).
The defendants cite several cases involving the application of California, not New York, law in support of their position.
. See, e.g., id. at *6-*7 (citing St. Paul, 884 F.2d at 704).
. See, e.g., Solow v. Stone, 994 F.Supp. 173, 179 (S.D.N.Y.) (applying Delaware law, the court held "[i]f the harm is to the corporation, and therefore affects the entire corporate structure, an individual plaintiff has not suffered a particularized injury, regardless of whether he is the corporation's sole creditor.”), aff'd, 163 F.3d 151 (2d Cir. 1998); Bd. of Directors of Chestnut Grove Condo. Unit Owners’ Ass’n v. Resolution Trust Corp., 161 B.R. 860, 863 (D.D.C. 1993) ("Our reasoning applies whether or not the plaintiff remains the only scheduled creditor of TB Capital.”).
. Objections [DI 2] at 15.
. Bloomfield v. Bloomfield, 280 A.D.2d 320, 321, 721 N.Y.S.2d 15, 16 (1st Dep't 2001).
. 410 F.Supp.2d 243, 254 (S.D.N.Y. 2006).
. Id.; see also id. at 255 (“Indeed, because a new claim for fraudulent conveyance accrues at the time of each conveyance, it would be illogical and contrary to the spirit of the law to treat a series of transfers as one transaction for the purpose of determining when the statute of limitations was triggered.”).
. N.Y. Debt. & Cred. L. § 270 (McKinney).
. 348-352 W. 27th St. Corp. v. Dropkin, 178 Misc. 815, 818, 36 N.Y.S.2d 740, 743 (Sup.Ct. N.Y.Co. 1942). This case arguably lends support to the trustee’s contention that the fraudulent transfer occurred when the defendants caused the debtor to abandon the premises and stop making lease payments. However, that argument was raised for the first time in the trustee’s objections and the Court thus declines to entertain it. Cf. Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008) ("a district court generally should not entertain new grounds for relief or additional legal arguments not presented to the magistrate”). This does not foreclose the Bankruptcy Court from considering this argument on remand.
. Miller v. Polow, 14 A.D.3d 368, 787 N.Y.S.2d 319 (1st Dep't 2005); Leone v. Sab-batino, 235 A.D.2d 460, 461, 652 N.Y.S.2d 628, 629 (2d Dep’t 1997).
. Miller, 14 A.D.3d at 368, 787 N.Y.S.2d at 320 (citations and internal quotation marks omitted).
. Citicorp Trust Bank, FSB v. Makkas, 67 A.D.3d 950, 953, 889 N.Y.S.2d 656, 659 (2d Dep’t 2009), abrogated on other grounds by Coyle v. Lefkowitz, 89 A.D.3d 1054, 934 N.Y.S.2d 216 (2d Dep't 2011).
. Miller, 14 A.D.3d at 368, 787 N.Y.S.2d at 320.
. Trepuk v. Frank, 44 N.Y.2d 723, 724, 405 N.Y.S.2d 452, 376 N.E.2d 924 (1978).
. Miller Aff. [10-ap-3487 DI 26], Ex. 9.
.The trustee is not entitled to equitable tolling for substantially the same reasons.
Reference
- Full Case Name
- In re MADISON BENTLEY ASSOCIATES, LLC, Debtor. Gregory Messer, as Chapter 7 Trustee v. Bentley Manhattan, Inc., Manhattan Motorcars, Inc., and Brian Miller
- Status
- Published