20-3865-bk Gunsalus v. County of Ontario

1 In the 2 United States Court of Appeals 3 For the Second Circuit 4 5 6 August Term, 2021 7 8 (Argued December 16, 2021; Decided June 27, 2022) 9 10 11 No. 20-3865-bk 12 13 BRIAN L. GUNSALUS, GLIEE V. GUNSALUS, 14 15 Plaintiffs-Appellees, 16 17 v. 18 19 COUNTY OF ONTARIO, NEW YORK 20 21 Defendant-Appellant. * 22 23 24 25 Appeal from the United States District Court 26 for the Western District of New York 27 No. 20-cv-6134 28 Frank P. Geraci, Jr., Chief Judge, Presiding. 29 30 Before: CABRANES, PARKER, and LEE, Circuit Judges.

* The Clerk of Court is respectfully directed to amend the official caption as set forth above. 1 1 2 3 Defendant-Appellant, County of Ontario, appeals from a judgment of the 4 United States District Court for the Western District of New York (Geraci, J.). 5 Plaintiffs-Appellees sought to set aside the loss of their home to the County as a 6 result of a tax lien foreclosure. The Bankruptcy Court set aside the transfer as a 7 fraudulent conveyance on the grounds that it was not for “reasonably equivalent 8 value.” We AFFIRM.

9 10 11 KARI A. TALBOTT (Mark Wattenberg, 12 on the brief), Legal Assistance of 13 Western New York, Inc., for Plaintiffs- 14 Appellees. 15 16 JASON S. DIPONZIO, Jason S. 17 DiPonzio, P.C., for Defendant- 18 Appellant. 19 20 21 BARRINGTON D. PARKER, Circuit Judge:

22 BACKGROUND

23 This case arises from the foreclosure of a tax lien on a home in Ontario

24 County, New York, owned by a married couple, Brian and Gliee Gunsalus, which

25 resulted in the loss of title to their home. Following the foreclosure, the couple filed

26 for protection under Chapter 13 of the Bankruptcy Code and filed a complaint

27 seeking to avoid the loss of their home on the grounds that it was a fraudulent

2 1 conveyance. The Bankruptcy Court set aside the transfer, and the County appeals,

2 raising two questions. The first is whether the Gunsaluses had standing to bring

3 the avoidance proceeding. The second is whether the transfer effected by Ontario

4 County in foreclosing on the lien was entitled to the presumption of having

5 yielded “reasonably equivalent value” under Section 548 of the Bankruptcy Code.

6 We answer yes and no, respectively.

7 The property in question is a modest family home. Mrs. Gunsalus has lived

8 there her entire life and for the past fifteen years she and Mr. Gunsalus have lived

9 there with their disabled adult son. They owned the home free and clear of

10 mortgages. Due to a temporary reduction in Mr. Gunsalus’ wages, the couple was

11 unable to pay their real estate taxes, and the property became subject to a tax lien

12 in the amount of unpaid taxes, $1,290.

13 After the lien remained unpaid for a number of months, the County

14 instituted proceedings pursuant to Article 11 of New York’s Real Property Tax

15 Law (“RPTL”) to enforce the lien. See RPTL §§ 1120 et seq. The County first

16 included the property on the “List of Delinquent Taxes” filed in the County Clerk’s

17 Office. See id. § 1122. The County then filed a petition that commenced an in rem

18 tax foreclosure action.

3 1 The Gunsaluses answered the petition and the County, in turn, moved for

2 summary judgment. The Gunsaluses opposed that motion and cross-moved for an

3 extension of time to pay the overdue taxes. The Ontario County Supreme Court

4 denied the cross-motion and granted the County’s motion. In June 2016, the

5 Ontario County Supreme Court entered a final judgment of foreclosure awarding

6 the County possession of, and title to, the home. The Gunsaluses were permitted

7 to continue residing in the property pending the outcome of this litigation.

8 In May 2017, the County scheduled an auction of the property, which was

9 sold to a third party for $22,000. The unpaid taxes, as noted, had amounted to

10 $1,290. Pursuant to Article 11, the County pocketed the difference ($20,710), which

11 meant that the Gunsaluses were required to forfeit to the County all of their

12 accumulated equity.

13 These procedures, authorized by Article 11, are known as “strict

14 foreclosure.” Under “strict foreclosure,” a creditor (here the County) asks the court

15 to set a deadline for payment of a debt (here unpaid taxes) secured by the tax lien.

16 If the lien is not paid by the deadline, as occurred here, the court enters an order

17 transferring title and possession of the property to the creditor. There is no

4 1 foreclosure sale. Instead, the transfer occurs by court order and the transferee can

2 then sell the property, as the County did.

3 Approximately three weeks before the auction, the Gunsaluses filed for

4 protection under Chapter 13 of the Bankruptcy Code. To qualify under Chapter

5 13, a debtor must present a plan that, among other things, provides “adequate

6 protection” to secured creditors like the County. Moreover, under Chapter 13, the

7 County retains its lien until the tax arrears is paid in full. See

1325(a)(5)(B)(i)(I). Accordingly, the Gunsaluses’ Chapter 13 plan provided that the

9 County would receive all delinquent real estate taxes plus 12% interest. The

10 Gunsaluses have made all delinquent tax payments, and they have continued to

11 pay the new property taxes that have accrued since the judgment of foreclosure.

12 During the bankruptcy proceedings, the Gunsaluses sought to avail themselves of

13 the federal homestead exemption under Section 522(d)(1), which allows a debtor

14 to exclude a home from the bankruptcy estate.

15 Shortly after the Chapter 13 filing, the Gunsaluses commenced a proceeding

16 in Bankruptcy Court to set aside the transfer of their home to the County on the

17 grounds that it was a fraudulent conveyance under Sections 548 and 522 of the

18 Code. To establish a fraudulent conveyance, a debtor must prove, among other

5 1 things, that the debtor received less than a reasonably equivalent value in

2 exchange for the transfer. See

(a).

3 The Bankruptcy Court dismissed the complaint. Relying on the United

4 States Supreme Court’s opinion in BFP v. Resolution Trust Corp.,

(1994),

5 the Bankruptcy Court held that a tax lien foreclosure proceeding conducted in

6 compliance with Article 11 of the RPTL, like the mortgage foreclosure at issue in

7 BFP, “is conclusively presumed to have provided reasonably equivalent value for

8 purposes of

(a)(1)(B)(i).” App’x 121.

9 On appeal, the District Court reversed. It reasoned that the mortgage

10 foreclosure procedures at issue in BFP differed in material respects from the tax

11 foreclosure procedures in the RPTL, explaining that

12 [t]he Court in BFP expressly stated that state foreclosure laws had evolved 13 to “avoid the draconian consequences of strict foreclosure,” . . . but the RPTL 14 has not. Unlike the foreclosure law in BFP and the “typical” state laws that 15 the Supreme Court described before reaching its holding, the RPTL is a strict 16 foreclosure regime that does not provide for a pre-seizure auction whereby 17 the debtor may recovery equity. This difference between the RPTL and the 18 state laws the BFP Court considered is significant to fraudulent conveyance 19 analysis. 20 21 App’x 11 (footnote omitted). The District Court remanded the case to the

22 Bankruptcy Court for trial on the fraudulent conveyance claim, where the

23 Gunsaluses prevailed. The Bankruptcy Court found that the Gunsaluses had met 6 1 their burden of proving that the transfer of their home worth at least $22,000 in

2 exchange for satisfaction of the $1,290 tax debt owed Ontario County was, among

3 other things, not for “reasonably equivalent value.” 1

4 This appeal followed. See

(d)(1). We review legal

5 determinations de novo. See In re Anderson,

(2d Cir. 2018).

6 DISCUSSION

7 The County seeks reversal on two grounds. First, the County argues that the

8 Gunsaluses lack standing to challenge the transfer of their property. Secondly, the

9 County argues that the District Court erred by refusing to extend the holding of

10 BFP from the mortgage foreclosure regime at issue there to the tax lien foreclosure

11 regime at issue here.

12 I

13 We first turn to the County’s contention that

(c)(2)(B) of the

14 Code deprived the Gunsaluses of standing to bring the avoidance proceeding. We

1Both the Bankruptcy Court and the District Court conducted proceedings in the present case alongside those raised by another similarly situation set of property owners, Joseph M. Hampton and Brenda S. Hampton. Before us, the County has also appealed the District Court’s judgment in the Hamptons’ case in Appeal No. 20-3868. 7 1 review this issue de novo. See Bank Brussels Lambert v. Coan (In Re AROChem Corp.),

2

(2d Cir. 1999).

3 Section 522 of the Code authorizes debtors to exempt certain transfers of

4 property. See

. In Bankruptcy Court, the Gunsaluses claimed the

5 federal homestead exemption, which allows a debtor to exempt a home from the

6 bankruptcy estate. See

§ 522(d)(1). The Code provides that debtors who are

7 eligible for the federal homestead exemption have standing to bring avoidance

8 actions. See id. § 522(h); Deel Rent-A-Car, Inc. v. Levine,

(11th Cir.

9 1983).

10 The Code also provides, however, that exempted property is subject to

11 certain limitations. Under Section 522(c)(2)(B), for example, certain exempted

12 property remains liable for a tax lien:

13 Unless the case is dismissed, property exempted under this section is not 14 liable during or after the case for any debt of the debtor that arose . . . before 15 the commencement of the case, except . . . 16 (2) a debt secured by a lien that is— 17 (B) a tax lien, notice of which is properly filed. 18 19 The County contends that this Section renders the Gunsaluses ineligible for

20 the federal homestead exemption and deprives them of standing. We disagree.

21 Section 522(c)(2)(B) is straightforward. It merely requires that the Gunsaluses—

8 1 who seek to avoid the transfer of their home and not to avoid paying off the tax

2 lien on that home—remain liable for the unpaid taxes even if the fraudulent

3 conveyance action succeeds.

4 The Gunsaluses’ Chapter 13 plan achieves just that result. In accordance

5 with 11 U.S.C § 1325, the plan provides that the County retains its lien until its

6 secured claim for tax arrears is paid in full. The plan affords the Gunsaluses five

7 years to pay their delinquent real estate taxes in full and, as noted, they are paying

8 off that obligation in accordance with the plan.

9 The County thus incorrectly interprets Section 522(c)(2)(B) as barring the

10 Gunsaluses from claiming the federal homestead exemption, when it merely

11 provides that exempt property remains liable for a tax lien. They are not, as the

12 County would have it, attempting to avoid paying the tax lien; they are attempting

13 to avoid a transfer of the property. Accordingly, Section 522(c)(2)(B) does not

14 deprive the Gunsaluses of standing under Section 522(h).

15 II

16 A

17 Next, the County challenges the District Court’s holding that the forfeiture

18 of the Gunsaluses’ home is not entitled to the presumption of an exchange for

9 1 “reasonably equivalent value” under Section 548(a). The Bankruptcy Code

2 empowers debtors to set aside a transfer of property if (1) the debtor had an

3 interest in property; (2) a transfer of that interest occurred on or within two years

4 of the bankruptcy petition; (3) the debtor was insolvent at the time of the transfer

5 or became insolvent as a result of the transfer; and (4) the debtor received “less

6 than a reasonably equivalent value in exchange for such transfer[,]”

548(a); see

§ 522(h). The parties agree that this case concerns only the fourth

8 element. See id. § 548(a)(1)(B)(i).

9 Of the three statutory terms—“reasonably,” “equivalent,” and value”—only

10 the last is defined. “Value” means, for purposes of Section 548, “property, or

11 satisfaction or securing of a . . . debt of the debtor,”

(d)(2)(A). See

12 BFP,

. To decide whether a transfer is for “reasonably equivalent

13 value,” courts consider “whether the debtor has received value that is

14 substantially comparable to the worth of the transferred property.”

. Were

15 we writing on a clean slate, we would easily conclude that the transfer here is not

16 entitled to the legal presumption of being in exchange for “reasonably equivalent

17 value.” Common sense dictates that receipt of $1,290 for a property that was sold

18 for $22,000 fails the “reasonably equivalent value” test. But the County contends

10 1 that this approach does not resolve this appeal because in the mortgage foreclosure

2 context, the Supreme Court in BFP weighed in on the meaning of “reasonably

3 equivalent value.”

4 In BFP, the debtor, a partnership formed to buy a home in California,

5 defaulted on its home loan payments.

. The home later sold at a mortgage

6 foreclosure sale for $433,000.

. The debtor alleged that the home was

7 actually valued at $725,000 and therefore challenged the sale as constructively

8 fraudulent because the $433,000 it received was not, in the debtor’s view,

9 “reasonably equivalent” to the $725,000 it alleged the home was worth.

.

10 The Supreme Court rejected that argument. It held that when a mortgage

11 foreclosure sale is conducted in compliance with state law, the price received at

12 that sale is the worth of the home—and, consequently, is “reasonably equivalent

13 value.”

. In reaching this result, the Court emphasized that over the years,

14 many state mortgage foreclosure laws had evolved from a system of strict

15 foreclosures to one of foreclosures by sale. See

. Under the strict

16 foreclosure regime (like that of RPTL Article 11), when a debtor had failed to make

17 past due mortgage payments, after a certain time period, his entire interest in the

18 property was forfeited, regardless of any accumulated equity.

. By

11 1 contrast, foreclosures by sale—such as the sale in BFP—ensured that (1)

2 foreclosures would occur by sale, (2) the proceeds of that sale would be used to

3 satisfy the debt, and (3) any surplus over the debt would be refunded to the debtor.

4 See

Foreclosures by sale, the Court noted, emerged to “avoid[] the draconian

5 consequences of strict foreclosure.”

“Since then,” the Court went on, “States

6 have created diverse networks of judicially and legislatively crafted rules

7 governing the foreclosure process, to achieve what each of them considers the

8 proper balance between the needs of lenders and borrowers.”

. The

9 Court adverted to the protections afforded by the current mortgage foreclosure

10 laws of many states, including notice to the defaulting borrower, a substantial lead

11 time before the commencement of foreclosure proceedings, publication of a notice

12 of sale, strict adherence to prescribed bidding rules and auction procedure, and

13 perhaps most importantly, foreclosure by sale with the surplus reverting to the

14 debtor.

. “When these procedures have been followed,” the Court stated,

15 “mere inadequacy of the foreclosure sale price is no basis for setting the sale aside

16 . . . .”

17 Ultimately, the Court held that “the consideration received from a

18 noncollusive, real estate mortgage foreclosure sale conducted in conformance with

12 1 applicable state law” is conclusively presumed to be an exchange for “reasonably

2 equivalent value” under

(a).

. Critical to that conclusion

3 was the existence of an auction or sale which would permit some degree of market

4 forces to set the value of the property even in distressed circumstances.

at 545-

5 49. Because distressed properties that must be sold in the time and manner

6 established by state mortgage foreclosure law are, the Court reasoned, “simply

7 worth less,” “reasonably equivalent value” in the mortgage foreclosure context is

8 the foreclosure sale price itself.

(emphases omitted).

9 For those reasons, the Court explained, courts may not engage in the policy

10 judgment of setting aside a mortgage foreclosure sale merely because the sale itself

11 yielded a price that a court deemed inadequate. See

. The Court therefore

12 rejected the debtor’s view that the $433,000 home was actually worth $725,000.

13 Instead, because the sale was conducted in compliance with state foreclosure-by-

14 sale law, the home was worth $433,000. And because the value received by the

15 debtor was equal to what the home was “worth,” the Court held that the debtor

16 had necessarily received “reasonably equivalent value” under Section 548.

17

18

13 1 B

2 In the County’s view, BFP instructs that so long as state foreclosure law

3 provides a debtor with (1) notice; (2) ample opportunity to cure; and (3) judicial

4 oversight of the process, any foreclosure conducted in compliance with state

5 foreclosure law necessarily yields “reasonably equivalent value” under Section

6 548. Here, the County contends that the RPTL contains those elements and that the

7 transfer was conducted in compliance with the RPTL. Consequently, the County

8 argues, BFP compels the conclusion that the transfer of the Gunsaluses’ home was

9 necessarily in exchange for “reasonably equivalent value.”

10 For a host of reasons, we disagree. First, BFP itself rejects this contention. As

11 Justice Scalia noted, BFP “covers only mortgage foreclosures of real estate. The

12 considerations bearing upon other foreclosures and forced sales (to satisfy tax liens,

13 for example) may be different.”

n.3 (emphasis added). That

14 admonition is dispositive because, as we have seen, the strict foreclosure

15 procedures under the RPTL offer far fewer debtor protections than the mortgage

16 foreclosure procedures at issue in BFP. See In re Smith,

(7th Cir.

17 2016) (finding that a state’s tax foreclosure protections must compare favorably to

18 the mortgage foreclosure protections in BFP in order to receive a presumption of

14 1 “reasonably equivalent value”); In re Hackler & Stelzel,

, 479 (3d Cir.

2 2019) (same).

3 Although the County eventually sold the Gunsaluses’ home, unlike the sale

4 in BFP, the sale occurred after foreclosure. The transfer of the Gunsaluses’ title,

5 equity and all their interests in the home—the transfer that is relevant for Section

6 548(a)(1)(B) purposes—had already occurred by the time the County auctioned off

7 the property. The auction was conducted solely for the benefit of the County and

8 the amount of the proceeds bears no relation to the amount of the tax debt that led

9 to the foreclosure. Moreover, under the RPTL, the County pockets the difference

10 between the tax debt and the sales proceeds and is not accountable to other

11 creditors for what it does with the proceeds. Suffice it to say that under no

12 reasonable calculus do these procedures convey to the debtor value that is

13 substantially comparable to the worth of the transferred property. See BFP, 511

14 U.S. at 548. In short, because the RPTL procedures are fundamentally different

15 from the protections in place in BFP, that case is of little assistance to the County.

16 In addition, the County’s position would produce results that are

17 fundamentally at odds with the goals of bankruptcy law. Here, it would give the

18 County a windfall at the expense of the estate, the other creditors, and the debtor—

15 1 which is precisely what the Code’s fraudulent conveyance provisions are intended

2 to prevent. See In re Smith,

. For these reasons, we agree with the

3 District Court that the transfer here should not be presumed to be in exchange for

4 “reasonably equivalent value” under Section 548.

5 Finally, the County expresses concerns that our reading of Section 548 will

6 hamper its ability to collect delinquent real property taxes. We are not insensitive

7 to those concerns, but they do not carry the day on this appeal. First, Ontario

8 County’s legitimate interest in tax collection cannot overcome Congress’ policy

9 choice that “reasonably equivalent value” must be obtained for a transfer of a

10 debtor’s property in the bankruptcy context. See In re Murphy,

, 120

11 (Bankr. S.D.N.Y. 2005). As we have previously admonished, “there is a strong

12 presumption of not allowing a secured creditor to take more than its interest.” In

13 re Harris,

(2d Cir. 2006); see also In re Smith,

(noting

14 that one goal of fraudulent conveyance law is to avoid a “windfall to one creditor

15 at the expense of others”). Second, the County’s concerns are unfounded in this

16 case. As noted, the Gunsaluses have proposed in their Chapter 13 plan to pay the

17 County all delinquent real estate taxes plus 12% interest. The Gunsaluses have also

18 made all tax payments that have subsequently come due under the plan. Third,

16 1 even to the extent that today’s ruling could, as the County cautions, introduce a

2 degree of disruption to the County’s collection of delinquent property taxes, that

3 disruption arises from the interplay between the strict foreclosure regime of the

4 RPTL and a Bankruptcy Code fashioned by Congress to afford relief to debtors.

5 By its very nature, the Code upsets common and state law property interests and

6 recalibrates the relationship between debtors and creditors.

7 For these reasons, we conclude that the District Court correctly held that the

8 transfer of the Gunsaluses’ home to the County was not entitled to the

9 presumption of having provided “reasonably equivalent value” under Section

10 548.

11 CONCLUSION

12 We AFFIRM the judgment of the District Court.

17