United States Court of Appeals For the First Circuit
No. 96-1600
IN RE: JURAJ J. BAJGAR,
Debtor,
CAROL B. MARTIN, ADMINISTRATOR OF ESTATE OF FRANCIS A. MARTIN, Plaintiff/Creditor, Appellant,
v.
JURAJ J. BAJGAR, Defendant/Debtor, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Arthur J. Carakatsane for appellant.
Richard S. Hackel for appellee.
January 17, 1997
STAHL, Circuit Judge. Creditor-Appellant Carol B. STAHL, Circuit Judge.
Martin appeals the district court's affirmance of the
bankruptcy court's decision to grant Debtor-Appellee Juraj J.
Bajgar a discharge pursuant to 11 U.S.C. 727(a)(2)(A) with
respect to property that Bajgar fraudulently transferred
within one year before the filing of his voluntary petition
for relief under Chapter 7 of the Bankruptcy Code. We
reverse.
Background Background
Bajgar and his wife jointly owned a vacant parcel
of land in Port St. Lucie, Florida ("the Florida property").
On November 10, 1993, Bajgar conveyed his interest in the
land to his wife, purportedly as a belated engagement gift,
delayed twenty-three years. In return, Bajgar received "love
and affection." The conveyance was recorded on December 2,
1993. At the time of the conveyance, Bajgar faced a
collection action and several foreclosures. He conceded at
trial that the transfer was fraudulent within the meaning of
the Bankruptcy Code, admitting that the transfer was
completed with actual intent to hinder, delay, or defraud his
creditors.
On May 16, 1994, less than one year after the
conveyance of the Florida property, Bajgar filed a petition
for relief under Chapter 7 of the Bankruptcy Code. In his
petition, Bajgar disclosed the fraudulent transfer by
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attaching a copy of the deed to the statement of affairs
filed pursuant to 11 U.S.C. 521(1). At a June 20, 1994,
mandatory creditors meeting, Bajgar and his wife volunteered
to reconvey the Florida property.
On August 19, 1994, Martin, one of Bajgar's
creditors, filed a Complaint to Object to Discharge, which
she amended on September 21, 1994. Martin's amended
complaint alleged a violation of 11 U.S.C. 727(a)(2)(A),
which precludes discharge for a debtor who transfers property
within one year of the filing of a bankruptcy petition if he
acts with the intent to hinder, delay, or defraud a creditor.
On September 30, 1994, at Bajgar's request and on the advice
of counsel, Bajgar's wife reconveyed the Florida property to
herself and Bajgar jointly by quitclaim deed. Bajgar's wife
completed the retransfer more than four months after Bajgar
filed his voluntary bankruptcy petition, more than three
months after the meeting with creditors, and more than one
month after Martin first objected to discharge.
The bankruptcy court (Hillman, J.) held that the
conveyance of the Florida property did not constitute grounds
to deny Bajgar's discharge under Section 727(a)(2)(A).
Martin appealed this decision to the United States District
Court for the District of Massachusetts. The district court
(Lasker, J.) affirmed, determining that the re-transfer of
the Florida property to Bajgar cured Bajgar's admittedly
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fraudulent initial transfer. This appeal ensued.
Standard of Review Standard of Review
"In an appeal from the district court's review of a
bankruptcy court order, we independently review the
bankruptcy court's decision, applying the 'clearly erroneous'
standard to findings of fact and de novo review to
conclusions of law." Grella v. Salem Five Cent Sav. Bank, 42
F.3d 26, 30 (1st Cir. 1994); see also In re G.S.F. Corp., 938
F.2d 1467, 1474 (1st Cir. 1991). The district court's
determination that the re-transfer justified discharging
Bajgar pursuant to Section 727(a)(2)(A) constitutes a
conclusion of law that we subject to plenary review. See
Century 21 Balfour Real Estate v. Menna (In re Menna), 16
F.3d 7, 10 (1st Cir. 1994); In re Erin Food Servs., Inc., 980
F.2d 792, 799 (1st Cir. 1992).
Discussion Discussion
This case presents this Circuit with an issue of
first impression: whether an admittedly fraudulent transfer
of a debtor's property within one year before the filing of a
voluntary petition for relief under Chapter 7 of the
Bankruptcy Code is cured for purposes of dischargeability
pursuant to Section 727(a)(2)(A) by its re-transfer to the
debtor after the debtor files his petition. We hold that re-
transfer subsequent to filing a voluntary bankruptcy petition
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does not cure the fraudulent transfer, and, thus, does not
avail the debtor discharge under Section 727.
Title 11, Section 727(a)(2)(A) states in pertinent
part:
(a) The court shall grant the debtor a discharge, unless--
(2) The debtor, with intent to hinder, delay, or defraud a creditor . . . has transferred . . .
(A) property of the debtor within one year before the date of the filing of the petition.
11 U.S.C. 727(a)(2)(A). Bajgar urges us to interpret the
term "transferred" to mean "transferred and remained
transferred" in the context of a debtor who reconveys
property subsequent to filing a voluntary bankruptcy
petition.
As we have stated previously, "the task of
interpretation begins with the text of the statute itself,
and statutory language must be accorded its ordinary
meaning." Telematics Int'l, Inc. v. NEMLC Leasing Corp., 967
F.2d 703, 706 (1st Cir. 1992). "Where, as here, the
statute's language is plain, 'the sole function of the courts
is to enforce it according to its terms.'" United States v.
Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (quoting
Caminetti v. United States, 242 U.S. 470, 485 (1917)). "The
plain meaning of legislation should be conclusive, except in
the 'rare cases [in which] the literal application of a
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statute will produce a result demonstrably at odds with the
intentions of the drafters.'" Ron Pair, 489 U.S. at 242
(quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,
571 (1982)).
The statutory language of Section 727(a)(2)(A) is
sufficiently plain. The statute specifically authorizes
denial of discharge if the debtor "transferred" property
within one year prior to the date of filing the bankruptcy
petition; it does not qualify this provision with a clause to
the effect that transferred property must remain transferred.
See 11 U.S.C. 727(a)(2)(A).
The Bankruptcy Code, moreover, defines the term
"transfer" broadly as "every mode, direct or indirect,
absolute or conditional, voluntary or involuntary, of
disposing of or parting with property or with an interest in
property." 11 U.S.C. 101(54). Although the legislative
history offers no guidance in interpreting "transfer" in the
context of Section 727(a)(2)(A), the legislative history of
Section 101(54), which defines "transfer," explains that
"[t]he definition of transfer is as broad as possible." S.
Rep. No. 989, 95th Cong. 27 (1978), reprinted in 1978
U.S.C.C.A.N. 5787, 5813; H.R. Rep. No. 595, 95th Cong. 314
(1977). Limiting the definition of "transferred" to
"transferred and remained transferred," in fact, would
contradict the drafters' intent.
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In support of his position, Bajgar recites Justice
Douglas' admonition that courts "do not read . . . statutory
words with the ease of a computer. There is an overriding
consideration that equitable principles govern the exercise
of bankruptcy jurisdiction." Bank of Marin v. England, 385
U.S. 99, 103 (1966). This recitation, however, is misplaced
in this case. Bank of Marin addressed the issue of whether
or not "the payment by the drawee of a drawer bankrupt's
checks after the date of th[e] filing [in bankruptcy] is a
`transfer' within the meaning of [repealed 11 U.S.C.
110(d)(5)]." Id. at 102. The Court determined "it would be
inequitable to hold liable a drawee who pays checks of the
bankrupt duly drawn but presented after bankruptcy, where no
actual revocation of its authority has been made and it has
not notice or knowledge of the bankruptcy." Id. at 103.
Although Congress "has legislated the exception [that the
Marin Court articulated with respect to the need for notice]
in 542(c)," Poonja v. Charles Schwab & Co. (In re Dominion
Corp.), 199 B.R. 410, 413 (9th Cir. 1996), the legislative
history makes plain that Congress, in revising the Bankruptcy
Code, did not intend to limit the definition of the term
"transfer." See S. Rep. No. 989, at 27; H.R. Rep. No 595, at
314; see also Dominion Corp., 199 B.R. at 413 (explaining
that changes made to the Code following Marin pertained to
the definition of "transferee" not "transfer"). In fact,
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"[t]he word 'transfer' has always had a most comprehensive
meaning under the bankruptcy laws and has been construed to
include every method of disposing of or parting with property
or its possession." 4 Collier on Bankruptcy 727.02[5]
(15th ed. 1996). And, "[w]hatever force the assertion in
Bank of Marin v. England, that 'equitable principles govern
the exercise of bankruptcy jurisdiction' may have had under
the 1898 Act, this approach has no place under the Code to
the extent the statute addresses the question." Levit v.
Ingersoll Rand Fin. Corp., 874 F.2d 1186, 1189 (7th Cir.
1989); see also In re Taubman, 160 B.R. 964, 980 (S.D. Ohio
1993) ("It must [] be recognized that the exercise of []
equitable principles . . . 'cannot contravene specific
provisions of the Bankruptcy Code.'") (quoting Terex Corp. v.
Metropolitan Life Ins. Co., 984 F.2d 170, 173 (6th Cir. 1993)).1
1. The district court reasoned that "`the statutory right to a discharge should ordinarily be construed liberally in favor of the debtor.'" Martin v. Bajgar (In re Bajgar), C.A. No.
95-12562-MEL, slip op. at 2-3 (quoting In re Tully, 818 F.2d
106, 110 (1st Cir. 1987)). Although Tully did posit that
"`[t]he reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural,'" it also directed that, "[o]n the other hand, the very purpose of certain sections of the law, like 11 U.S.C. 727(a)[], is to make certain that those who seek the shelter of the bankruptcy code do not play fast and loose with their assets or with the reality of their affairs." Tully, 818 F.2d at
110 (quoting Dilworth v. Booth, 69 F.2d 621, 624 (5th Cir.
1934)). In a more recent case, moreover, we explained that "[e]xceptions to discharge are narrowly construed in furtherance of the Bankruptcy Code's `fresh start' policy and the claimant must show that its claim comes squarely within
an exception enumerated in Bankruptcy Code [727(a)(2)]."
Menna, 16 F.3d at 9 (emphasis added). In this case, Martin's
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Without delving into the murky realm of legislative
purpose and equitable principles, the Eleventh Circuit, one
of the two other courts of appeals to address this issue,
reached the same conclusion we reach today. See Davis v.
Davis (In re Davis), 911 F.2d 560 (11th Cir. 1990) (per
curiam). In Davis, the Eleventh Circuit considered the case
of a debtor ("Davis") who transferred a one-half interest in
his home to his wife. See id. at 561. Upon the advice of a
bankruptcy lawyer, Davis re-transferred the property. The
day following recordation of the deed formalizing this
retransfer, and less than one year after the initial
transfer, Davis filed for bankruptcy protection under Chapter
7. Despite the fact that Davis disclosed the existence of
the fraudulent transfers, a creditor filed an adversary
proceeding to deny discharge under Section 727(a)(2)(A).
Like Bajgar, Davis argued that "the word
'transferred' should be read to mean 'transferred and
remained transferred' at the time a debtor files his
bankruptcy petition." Id. at 562. Refusing to discharge
Davis, the Eleventh Circuit reasoned:
Normally, a court should interpret a statute in a manner consistent with the
claim that Bajgar should be denied discharge because Bajgar fraudulently transferred property within one year before the filing of the bankruptcy petition falls squarely within the exception that Section 727(a)(2)(A) enumerates. See 11
U.S.C. 727(a)(2)(A). The Tully court's instruction,
therefore, does not control this case.
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plain meaning of the language used in the statute. The statutory language of section 727(a)(2)(A) is plain and unambiguous. Congress certainly was capable of drafting a statute which would deny a discharge only when assets were fraudulently transferred and remained transferred at the time of filing of bankruptcy proceedings, but it did not. We are a court and not a legislative body; therefore, we are not free to create by interpretation an exception in a statute which is plain on its face.
Id. (citations omitted). According to the Eleventh Circuit,
therefore, if a debtor fraudulently transfers property within
one year before the filing of a bankruptcy petition, he will
not receive a discharge. See Najjar v. Kablaoui (In re
Kablaoui), 196 B.R. 705, 709 (S.D.N.Y. 1996) ("[T]he Eleventh
Circuit wholly rejects the debtor's subsequent reconveyance
of the fraudulently transferred property as a defense to a
section 727(a)(2)(A) action.").
While the plain language of Section 727(a)(2)(A)
and the applicable legislative history point to the
conclusion that, upon proper objection, any debtor who
fraudulently transfers property within one year before the
filing of a bankruptcy petition is not entitled to receive a
discharge pursuant to Section 727, irrespective of the timing
of a reconveyance, this case presents us with a debtor who
reconveyed property several months subsequent to filing a
voluntary bankruptcy petition. We need not decide now either
the effect of a reconveyance made prior to the filing of a
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voluntary bankruptcy petition or the question of a re-
transfer effected immediately following the filing of an
involuntary petition.
Despite Section 727(a)(2)(A)'s plain language and
the Davis court's interpretation, Bajgar seeks solace in a
Ninth Circuit case, First Beverly Bank v. Adeeb (In re
Adeeb), 787 F.2d 1339, 1344 (9th Cir. 1986), which
interpreted the term "transferred" to mean "transferred and
remained transferred" in the context of Section 727(a)(2)(A).
Both the bankruptcy court, see Bajgar, 186 B.R. at 8, and the
district court, see Martin v. Bajgar (In re Bajgar), C.A. No.
95-12562-MEL, slip op. at 2 (D. Mass. March 19, 1996), found
Adeeb persuasive in this case. We do not.
In Adeeb, the court considered whether or not to
discharge an individual ("Adeeb") who transferred property
"with intent to hinder, delay, or defraud a creditor" within
one year of the filing of a petition. See 787 F.2d at 1342,
1344. Faced with demands from his creditors, Adeeb consulted
with an attorney who had little bankruptcy experience.
Acting upon his attorney's advice, Adeeb transferred several
properties to third parties. Adeeb then retained an
experienced bankruptcy attorney, who advised him to re-
transfer the properties and to disclose the initial transfers
to his creditors. Adeeb followed this advice and immediately
began to reverse the transfers while notifying his creditors
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of his actions. Before Adeeb could complete the re-transfers
and within one year of the initial fraudulent transfers,
several of his creditors filed an involuntary bankruptcy
petition against him. Determining not to contest this
petition, several days later Adeeb filed a voluntary
petition, "seeking a discharge of his indebtedness." Id. at
1342.
The Adeeb court determined that "reading
`transferred' . . . to mean 'transferred and remained
transferred' is most consistent with the legislative purpose
of [Section 727(a)(2)(A)]." Id. at 1344. The Adeeb court
reasoned:
First, this reading encourages honest debtors to recover property they have transferred during the year preceding bankruptcy. Encouraging debtors to recover improperly transferred property facilitates the equitable distribution of assets among creditors by ensuring that the trustee has possession of all of the debtor's assets. Second, this reading permits the honest debtor to undo his mistakes and receive his discharge.
Id. at 1345. Treating Adeeb as the subject of an involuntary
petition because "[t]he involuntary petition in this case
began the bankruptcy process," id. at 1346 n.4, the court
discharged Adeeb. The court held that "a debtor who has
disclosed his previous transfers to his creditors and is
making a good faith effort to recover the property
transferred at the time an involuntary bankruptcy petition is
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filed is entitled to a discharge of his debts if he is
otherwise qualified." Id. at 1346 (emphasis added).
The Adeeb court, however, enunciated a different
rule with respect to a debtor who files a voluntary
bankruptcy petition: "[A] debtor who transfers property
within one year of bankruptcy with the intent penalized by
section 727(a)(2)(A) may not be denied discharge of his debts
if he reveals the transfers to his creditors, recovers
substantially all of the property before he files his
bankruptcy petition, and is otherwise qualified for a
discharge." Id. at 1345 (emphasis added). As the Adeeb
court explained, this rule demanding recovery prior to the
filing of a petition "assumes the filing of a voluntary
petition by the debtor. In that situation, the debtor
controls the time of filing the petition. He is therefore
able to time the filing to allow recovery of substantially
all of his property." Id. at 1346. Adeeb thus makes clear
that the test applicable to a debtor subject to an
involuntary bankruptcy petition differs substantially from
the test the court would apply to a debtor filing a voluntary
bankruptcy petition.
Even were we to adopt Adeeb, its application to the
instant case would result in denial of discharge. Bajgar did
not recover any of the transferred property until well after
he filed his voluntary bankruptcy petition. Although the
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bankruptcy court noted the fact that Bajgar did not complete
reconveyance of the property "until several months after the
filing of the petition," Bajgar, 186 B.R. at 9, it determined
that because Bajgar revealed the transfer at the time of his
filing, "those facts satisfy the Adeeb test that the recovery
be 'prior to the time the bankruptcy petition was filed or
within a reasonable time after it was filed.'" Id. (quoting
Adeeb, 787 F.2d at 1346). Contrary to the bankruptcy court's
assertion, disclosure constitutes only one component of the
activity necessary to secure discharge under Adeeb. See
Adeeb, 787 F.2d at 1345-46. Furthermore, the language that
the bankruptcy court relies on from Adeeb applies to an
involuntary petition, rather than a voluntary petition: "We
emphasize that the debtor [subject] . . . to the filing of
the involuntary petition . . . must actually recover the
property within a reasonable time after the filing of the
involuntary petition." Adeeb, 787 F.2d at 1346 (emphasis
added). In the case of a voluntary bankruptcy petition, such
as Bajgar filed, however, "[t]he Ninth Circuit requires
actual reconveyance of the fraudulently transferred property
before the bankruptcy filing." Kablaoui, 196 B.R. at 709
(explaining Adeeb) (emphasis added); see also Adeeb, 787 F.2d
at 1345-46; March v. Sanders (In re Sanders), 128 B.R. 963,
971 (W.D. La. 1991) ("Court of Appeals decisions . . . have
taken the position that mere disclosure of actions prohibited
-15- 15
by Sec. 727(a)(2)(A) will not prevent denial of discharge.
What may allow discharge is disclosure accompanied by
voluntary prepetition reversal of the prohibited activities .
. . .") (emphasis added). As the Kablaoui court concluded,
"[h]ere the Debtor did not attempt to recover any of the
transferred property before filing for bankruptcy. Thus,
these transfers were not 'undone' under the Ninth Circuit's
definition of 'transfer.'" Kablaoui, 196 B.R. at 709.
The bankruptcy court, again relying on Adeeb,
endeavored to buttress its construction of Section
727(a)(2)(A) by insisting that construing "transferred" to
mean "transferred and remained transferred" furthers the
general purpose of the Bankruptcy Code. See Bajgar, 186 B.R.
at 7-8. We recognize that reading the term "transferred" to
mean "transferred and remained transferred," could be
construed, in certain instances, to advance the "purpose of
the Bankruptcy Act to [distribute] the assets of the bankrupt
. . . among creditors and then to relieve the honest debtor
from the weight of oppressive indebtedness and permit him to
start afresh free from the obligations and responsibilities
consequent upon business misfortunes." Williams v. United
States Fidelity & Guarantee Co., 236 U.S. 549, 554-55 (1915);
Adeeb, 787 F.2d at 1345. This purpose affords the "honest
but unfortunate debtor who surrenders for distribution the
property which he owns at the time of bankruptcy, a new
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opportunity in life and a clear field for future effort,
unhampered by the pressure and discouragement of preexisting
debt." Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934).
In this case, however, Bajgar did not reveal his
initial fraudulent transfer until he filed his bankruptcy
petition. In addition, Bajgar consulted with an experienced
bankruptcy attorney at the time he executed the initial
fraudulent transfer. It was not until he faced the prospect
of being denied discharge pursuant to Section 727(a)(2)(A)
that Bajgar actually reconveyed the property.
We are not presented with an "honest but
unfortunate debtor" that the Bankruptcy Code envisions as the
deserving recipient of a fresh start. Cf. Huckfeldt v.
Huckfeldt (In re Huckfeldt), 39 F.3d 829, 832-33 (8th Cir.
1994) (describing individual who did not constitute "honest
but unfortunate debtor"); Barclays/American Business Credit,
Inc. v. Adams (In re Adams), 31 F.3d 389, 393-94 (6th Cir.
1994) (refusing to discharge a debtor pursuant to Section
727(a)(2)(A)), cert. denied, 115 S. Ct. 903 (1995).2
2. Adeeb, by contrast, did present such a picture. The Adeeb court explained:
We are . . . persuaded by practical considerations that a discharge should not be denied in the present situation. It is not uncommon for an uncounseled or poorly counseled debtor faced with mounting debts and pressure from his creditors to attempt to protect his property by transferring it to others.
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Contrary to the bankruptcy court's determination, therefore,
denying Bajgar discharge actually comports with the "purpose"
of the Bankruptcy Act. See Grogan v. Garner, 498 U.S 279,
286-87 (1991) ("[I]n the same breath that we have invoked
th[e] 'fresh start' policy, we have been careful to explain
that the [Bankruptcy] Act limits the opportunity for a
completely unencumbered new beginning to the 'honest but
unfortunate debtor.'"); Citibank, N.A. v. Eashai (In re
Eashai), 87 F.3d 1082, 1088 (9th Cir. 1996) ("This exception
to discharge furthers the policy that an honest but
unfortunate debtor obtains a fresh start while a dishonest
debtor does not benefit from his wrongdoing."); Mayer v.
Spanel Int'l Ltd., 51 F.3d 670, 674 (7th Cir.) ("Congress
concluded that preventing fraud is more important than
letting defrauders start over with a clean slate, and we must
respect that judgment."), cert. denied, 116 S. Ct. 563 (1995).3
Upon later reflection or upon obtaining advice from experienced bankruptcy counsel, the debtor may realize his original transfer of property was a mistake.
Adeeb, 787 F.2d at 1345. At oral argument in the instant
case, however, Bajgar's attorney informed us that Bajgar was well-counseled by an experienced bankruptcy lawyer throughout the period in question, including the time he executed the initial fraudulent transfer.
3. As for the Bankruptcy Code's objective of guaranteeing the equitable distribution of a petitioner's estate among his creditors, it is likely that our decision, by denying discharge, will facilitate this outcome by deterring petitioners from fraudulently transferring property within
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Conclusion Conclusion
Martin's claim "comes squarely within" Section
727(a)(2)(A)'s exception for property fraudulently
transferred within one year of the filing of a bankruptcy
petition. See Menna, 16 F.3d at 9. It is for Congress to
determine whether or not this exception should be recast. We
REVERSE and REMAND to the district court with instructions to
remand to the bankruptcy court for proceedings consistent
with this opinion.
one year of filing a voluntary bankruptcy petition in the first place.
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