In re Tellico Lake Properties, L.P.
In re Tellico Lake Properties, L.P.
Opinion of the Court
MEMORANDUM ON MOTION BY TRUSTEE FOR TURNOVER OF PERSONAL PROPERTY OF THE ESTATE
Before the Court is the Motion by Trustee for Turnover of Personal Property of
(1) At the time of the filing of the Chapter 7 petition on October 5, 2012, was the Trustee’s interest in the three vehicles in controversy superior to the interest of Wolfenbarger under 11 U.S.C. § 544 of the Code;
(2) Are the three vehicles property of the estate under 11 U.S.C. § 541;
(3) Is Wolfenbarger a bona fide purchaser or did he provide reasonable market value for the three vehicles in controversy;
(4) What was the legal effect, if any, of the Michael Ross Promissory Note and alleged secured claim of Wolfenbarger in the three vehicles; and
(5) If the Trustee’s interest is superior to the interest of Wolfenbarger, are the three vehicles property of the estate under 11 U.S.C. § 541 and therefore subject to an order for turnover under 11 U.S.C. § 542?
The evidentiary hearing, of this contested matter was held on February 22, 2016, and the record consists of stipulations of undisputed facts submitted by the parties on February 12, 2016; twenty-five stipulated exhibits introduced into evidence; the testimony of six witnesses (Gregory Baker; John P. Newton, Jr.; Sterling P. Owen, IV; Brenda Wolfenbarger; and William Wolfenbarger); and, pursuant to Rule 201 of the Federal Rules of Evidence, all documents of record in this bankruptcy case. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(E).
I. RELEVANT FACTS
This bankruptcy ease was filed through an Involuntary Petition on October 5,2012, and an Order for Relief was entered on November 13, 2012, with Debtor’s consent. The Trustee was duly appointed, and Michael Ross, a limited partner in Debtor and the president of Tellico Communities Inc., Debtor’s general partner, was designated to perform all duties imposed on Debtor under the Federal Rules of Bankruptcy Procedure; however, Debtor’s statements and schedules, which were unsigned when filed in January 2013, were prepared with information provided by Greg Baker, who acted as CPA for Ross’s businesses and was custodian of Debtor’s records. [Trial Ex. 6; Doc. 36.] Debtor’s statements and schedules were never signed by nor sworn to under penalty of perjury by Ross, who asserted his Fifth Amendment rights at Debtor’s meeting of creditors.
Exhibit 2 attached to Debtor’s Statement of Financial Affairs stated, inter alia, that a 1956 Ford Thunderbird, a 1956 Chevrolet Corvette, and a 1971 Chevrolet Corvette (the Antique Cars) were “transferred to William Wolfenbarger for settlement of $100,000 note in 2011.” [Trial Ex. 6 at p. 18 of 175.] The parties do not dispute that Wolfenbarger, who has been a licensed car dealer by the State of Tennessee since 1975, has had the Antique Cars in his possession since May 31, 2011. On the same date that Ross delivered the Antique Cars to Wolfenbarger, Ross signed a Promissory Note, agreeing to repay to Wolfenbarger $100,000.00, with interest-only monthly payments to begin on July 1, 2011 (the Note). [Trial Ex. 12.]
The parties also do not dispute that the Antique Cars were purchased by Ross with Defendant’s funds totaling $158,370.00 from Barrett-Jackson Auto Auction along with other automobiles in April 2005 and April 2006 [Coll. Trial Exs. 8, 9; Trial Ex. 18 at pp. 17-18.] Likewise, there is no dispute that the back of each title contains a handwritten notation dated May 31, 2011, signed by Ross and reflecting Wolfenbarger as buyer for a sales price of “re-sale.” [Coll. Trial Ex. 4.]
At the time the involuntary petition was filed, Debtor and Ross were also defendants in a civil lawsuit in the United States District Court styled Stooksbury v. Ross et al., Case No. 3:09-cv-00498 (Stooksbury Lawsuit). A judgment in the Stooksbury Lawsuit was entered in March 2012 [Trial Ex. 7], and since June 6, 2012, Sterling P. Owen, TV has served as receiver in that case [Trial Ex. 14], which is currently in the final stages before closure. Pursuant to a July 21, 2015 Order entered in the Stooksbury Lawsuit, the stay of all legal proceedings against receivership assets was lifted as to assets that were determined not to belong to the receivership estate, including the Antique Cars, so that the Trustee could pursue recovery of them for the benefit of the bankruptcy estate. [Trial Ex. 2.]
II. ANALYSIS
A. The Antique Cars Are Property of the Estate.
Debtor’s bankruptcy estate was created at the commencement of the case and includes “all legal or equitable interests of the debtor in property” as of that date. 11 U.S.C. § 541(a). What is included within § “541(a)(l)’s definition is ‘unquestionably broad, and it is well-settled that property of the estate includes every conceivable interest of the debtor held as of the commencement- of the bankruptcy case, whether that interest is future, nonpossessory, contingent, speculative [or] derivative.’ ” In re Birmingham Cosmetic Surgery, P.L.L.C., No. 14-58784, 2015 WL 1404296, at *2 (Bankr.E.D.Mich. Mar. 25, 2015) (quoting Moyer v. Slotman (In re Slotman), Adv. No. 12-80232, 2013 WL 7823003, at *5 (Bankr.W.D.Mich. Dec. 5, 2013) (internal quotations omitted)).
In support of his Motion for Turnover, the Trustee argued that the Antique Cars were property of the estate as evidenced by the fact that Ross purchased the cars with Debtor’s funds and Debtor carried the Antique Cars on its. accounting records until the time
Under Tennessee law, owners of motor vehicles are required to register ownership with the county clerk, as agent for the Tennessee Department of Safety, and must prove ownership through valid documentation or certifications signed under penalty of perjury before the clerk may issue a certificate of title. See Tenn. Code Ann. § 55-3-103.
Even more compelling evidence that Debtor is owner of the Antique Cars is found within Debtor’s tax returns for 2005 through 2010, which were prepared with information provided by Ross and reflect that Debtor held “vehicles” worth a substantial amount of money as assets. [See Coll. Trial Ex. 10.] The initial entry, for the 2005 taxes prepared by William E. Long, CPA, on October 6, 2006, reflects an investment value of $477,325.00. The same figure is reflected in the 2006 tax return, prepared by Long on October 11, 2007. The 2007 tax return, prepared by Garry L. Godfrey, CPA, on October 19, 2008, reflects an ending investment balance for “vehicles” of $551,670.00. The 2008 tax return, prepared by Baker and signed by Ross as “President” on September 15, 2009, reflects the same $551,670.00 figure for “vehicles.” The 2009 tax return prepared by Baker and signed by Ross on October 15, 2010, likewise reflects the same $551,670.00 value. That entry disappears, however, in the 2010 tax return, prepared by Baker and signed by Ross on October 31, 2011, five months after Ross gave possession of the Antique Cars to Wolfenbarger.
Baker testified that the final tax return prepared for Debtor was the 2010 return, prepared in October 2011, and that it does not include the classic cars because they, along with a number of home sites, were transferred on the books in October 2011 with an effective date of January 2010 from Debtor to Rarity Management Company, which at that time was owned by Ross.
Wolfenbarger testified at trial that he considered himself a bona fide purchaser of the Antique Cars and that Ross signed them over to him on the original titles, which he likewise possesses. Wolfeinbarger also acknowledged that his initial intent in taking possession of the Antique Cars was for Ross to get them back upon payment of the Note. While the Court does not doubt Wolfenbarger’s testimony that based on the documentation, he genuinely thought that Ross owned the Antique Cars, with respect to his having been a bona fide purchaser of the Antique Cars, the record proves otherwise.
First, as previously stated, Debtor, not Ross, was the actual owner of the Antique Cars, and Ross’s notations on the back of each title purporting to sell them to Wolfenbarger was invalid. Further, Wolfenbarger, who has had the Antique Cars and titles in his possession since 2011, likewise did not register the cars with the State of Tennessee. There is also nothing in the record to reflect that Wolfenbarger gave value for the Antique Cars, as required for him to be a bona fide purchaser.
To the contrary, the record includes the Note dated May 31, 2011, in the amount of $100,000.00 payable to Wolfenbarger from Ross containing a handwritten notation that it was “secured by 3 automobile titles
Also relevant is the fact that the Antique Cars were listed in Debtor’s Statement of Financial Affairs, which was prepared by Baker as custodian of Debtor’s records and which shows, according to “information provided from Michael L. Ross,” that the Antique Cars were “[transferred to William Wolfenbarger for settlement of $100,000 note in 2011.” [Trial Ex. 6 at p. 18 of 175.] By this entry, Debtor’s CPA— the person who was most familiar with Debtor’s books and records—responded to question 10 that requires a list of “all other property, other than property transferred in the ordinary course of the business or financial affairs of the debtor, transferred either absolutely or as security within two years immediately preceding the commencement of the case.” The response thus supports the fact that the Antique Cars, in fact, were Debtor’s property. Notwithstanding that the response asserts that, according to Ross, the Antique Cars owned by Debtor were transferred to Wolfenbarger to settle the Note on which only Ross was obligated, Wolfenbarger’s testimony at trial was clear that the Note has not been paid and that interest continues to accrue since the last interest payment was made in January 2012.
For these reasons, the Court finds that Ross did not transfer ownership of the Antique Cars from Debtor to Wolfenbarger and that the Antique Cars were still owned by Debtor when the bankruptcy case was filed such that the cars are property of the bankruptcy estate under § 541(a).
B. The Trustee Is Entitled to Turnover of the Vehicles.
Because the Antique Cars are property of Debtor’s bankruptcy estate and Wolfenbarger did not perfect any lien on the cars under state law, the Court finds that Wolfenbarger holds a mere possessory interest in the Antique Cars that is inferior to the estate’s interest and that does not override the Trustee’s requirements under 11 U.S.C. § 704(a) to “collect and reduce to money the property of the estate[.]”
Until it is abandoned or the case is closed, a debtor’s property remains part of the bankruptcy estate, 11 U.S.C. § 554(c), and any entity in possession or control of property of the estate is required to turn it over to the trustee, 11 U.S.C. § 542(a). To prevail in his turnover action, the Trustee must prove, by a preponderance of the evidence, “(1) that the property is or was in the possession, custody or control of an entity during the pendency of the case; (2)
Each of the foregoing requirements has been satisfied, and the Trustee is entitled to turnover of the Antique Cars from Wolfenbarger. The parties do not dispute that Wolfenbarger is currently in and' has had possession of the Antique Cars since 2011, including the entire time the bankruptcy' case has been pending. Because the Court has found that the Antique Cars are property of the bankruptcy estate, there is nothing within 11 U.S.C. § 363 or the record that prohibits the Trustee from exercising his statutory authority to “use, sell, or lease” the cars for the benefit of the estate. Furthermore, based on Baker’s testimony, the value of classic cars does not depreciate. As a result, they are worth, at a minimum, the $158,370.00 paid for them and are, thus, worth more than an inconsequential value and benefit to the bankruptcy estate.
III. CONCLUSION
For the foregoing reasons, the Court finds that the Antique Cars are property of Debtor’s bankruptcy estate, that the Trustee holds an interest superior to the possessory interest held by Wolfenbarger, and that the Trustee is entitled to turnover of the cars. Wolfenbarger shall be required to turn over possession of the Antique Cars to the Trustee within thirty days. An Order consistent with.this Memorandum will be entered.
. In fact,- the evidence at trial established that Debtor carried the Antique Cars on its accounting records until October 2011, when Baker prepared Debtor’s tax returns and transferred ownership of the Antique Cars to Rarity Management Company effective January 2010, at the direction of Ross, purportedly to partially satisfy a debt owed by Debtor to Rarity Management Company, which was owned at the time by Ross.
. During cross examination, the Trustee acknowledged that Debtor also failed to register the Antique Cars with the State of Tennessee; however, unlike Ross and Wolfenbarger, Debtor is not a person capable of acting on his or her own. Instead, Debtor was under the control of Ross, who benefitted by not registering the cars, and Debtor’s failure to register the Antique Cars with the State of Tennessee is not determinative as to Debtor’s ownership.
. According to Baker, Rarity Management Company had previously been owned by Debtor.
. The check's memo line lists four cars, the three at issue here and a 1955 Bel Air; however, the Note has the 1955 Bel Air marked through as being “collateral” for the Note.
. Mrs. Wolfenbarger testified at trial that she and her husband had known Ross and his wife for years.
Reference
- Full Case Name
- IN RE TELLICO LAKE PROPERTIES, L.P., Debtor
- Status
- Published