Equal Employment Opportunity Commission v. Northern Star Hospitality

163 F. Supp. 3d 571, 2015 U.S. Dist. LEXIS 169261, 2015 WL 9255569
CourtDistrict Court, W.D. Wisconsin
DecidedDecember 17, 2015
Docket12-cv-214-bbc
StatusPublished

This text of 163 F. Supp. 3d 571 (Equal Employment Opportunity Commission v. Northern Star Hospitality) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Equal Employment Opportunity Commission v. Northern Star Hospitality, 163 F. Supp. 3d 571, 2015 U.S. Dist. LEXIS 169261, 2015 WL 9255569 (W.D. Wis. 2015).

Opinion

OPINION AND ORDER

BARBARA B. CRABB, District Judge

This case is before the court on a motion by plaintiff Equal Employment Opportunity Commission to hold Christopher Brekk[573]*573en liable for the unpaid portion of the judgment entered in plaintiff's favor on February 25, 2014 against defendants Northern Star Hospitality, d/b/a Sparx Restaurant, Northern Star Properties, LLC and North Broadway Holdings, Inc. Although Brekken was never named as a defendant in this case, plaintiff contends that he can be held responsible under the Federal Priority Statute, 81 U.S.C. § 3713(a) and (b), for satisfying the judgment. As the sole stockholder of all of the defendant corporations, he can be held liable for the judgment if he paid part of the corporations’ debts before paying the government’s claim in this case. In an order entered on November 13, 2015, dkt. # 318, I explained why it appeared that Brekken would be liable to plaintiff under the statute and gave him an opportunity to be heard on the issue. Brekken has taken advantage of that opportunity and has filed an objection with the court. In addition, plaintiff argues that Brekken may be held in contempt and assessed an amount equal that will satisfy plaintiffs judgment.

I conclude that plaintiff has shown that Brekken is liable to it for the amount of its judgment, plus interest, costs and penalties under the Federal Priority Statute. In addition, he is in contempt of this court’s orders and for that reason as well is responsible for payment of the money owed to plaintiff for the amount of the judgment, plus interest, costs and penalties.

OPINION

A. Brekken’s Liability under the Federal Priority Statute

Brekken filed a response, but it does not provide any reason for relieving him of his obligation under the Federal Priority Statute to satisfy plaintiffs judgment. His only argument for moving operating funds around to various accounts rather than using them to pay the judgment is his belief that it was reasonable for defendants to devote all of their income and assets to keeping the restaurant afloat financially, even if this meant ignoring the judgment. (The restaurant is no longer run as Sparx, but has been operating as a Denny’s franchise.) His argument seems to be that the diversion was intended to maximize the amount of money that would be available to pay the judgment, whereas a forced sale of an unsuccessful business would not have benefited either side, Dfts.’ Br., dkt. # 320, at 8-9, but since he never explained this to plaintiff, never obtained plaintiffs permission to delay the payments and never took any steps to work out a payment schedule with plaintiff, the argument is not one that can be taken seriously. The fact is that Brekken does not deny taking actions through the corporations designed to keep the restaurant in operation, rather than satisfying plaintiffs judgment.

Brekken also argues that he cannot be found to have violated the Federal Priority Statute when he paid off the AnchorBank mortgage, because that mortgage had been perfected before plaintiff filed its Abstract of Judgment on June 26, 2014. He contends that because AnchorBank had a perfected lien on defendants’ personal property, as well as on the real property, and that these liens that had priority over plaintiffs judgment, when defendants paid AnchorBank the proceeds of their sales of real and personal property, the payments were not a voluntary assignment of property, which would be covered under the Federal Priority Statute, but the turnover of proceeds of the sale to AnchorBank as required by the terms of the mortgage.

Defendants received $219,000 for the sale of personal property in September 2015, Asset Purchase Agmt., dkt. # 304-3, and turned those funds over to Anchor-Bank, the mortgagee of defendant Northern Star Properties, or Properties. This [574]*574was an improper transfer, on at least two counts. First, defendant Properties was not the owner of the personal property of the restaurant business; defendant North Broadway Holdings, or Holdings, was. Def. North Broadway Holdings, Inc.’s Third Supp. Answers to the EEOC’s Interrog., dkt. # 310-14, at 5-7. Because Anchor-Bank’s mortgage did not extend to Holdings, the bank had no claim under that mortgage to property belonging to Holdings. Accordingly, the transfer of the funds from Holdings to pay Properties’ mortgage was a voluntary assignment of property made after defendants had incurred their debt to plaintiff.

Second, even if Properties and not Holdings had been the mortgagor of the personal property, Brekken has not shown that Properties could have turned the sale proceeds from the sale of the person property over to Anchor Bank without violating plaintiffs prior right to the funds. The Federal Priority Statute recognizes the priority of obligations that are based on a “choate” lien, that is, a lien in which the identity of the lienor, the property subject to the lien and the amount of the lien are established. United States v. City of New Britain, Conn., 347 U.S. 81, 84, 74 S.Ct. 367, 98 L.Ed. 520 (1954). As a general rule, liens on personal property are not choate liens, because the loan agreement does not refer specifically to the items of personal property that are covered by the loan. United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 357-60, 65 S.Ct. 304, 89 L.Ed. 294 (1945) (“Only after the lien was actually asserted [on items of personal property] and an attachment or a distraint levied” could it be argued that particular items were subject to government’s claim.) Defendants have not shown that Anchor-Bank’s lien was one in which the identity of the personal property subject to the lien had been established: This is not surprising because it is rarely the case that any mortgage of personal property would refer to specific items, particularly when, as in this case, the personal property relates to a restaurant and is likely to change' frequently.

Brekken continues to argue that he cannot be held liable for the judgment in favor of plaintiff because he was never a party to the case, but he has not shown why the Federal Priority Statute, 31 U.S.C. § 3713, does not make him liable. That statute requires that a claim to the United States government be paid first when “a person indebted to the Government is insolvent,” § 3713(A) and “the debtor without enough property to pay all debts makes a voluntary assignment of property,” § 3713(A)®, and when a “representative of a person or an estate ... paying any part of a debt of the person or the estate before paying a claim of the government is liable to the extent of the payment for unpaid claims of the Government.” § 3713(b). Plaintiff is “the Government”; Brekken’s companies claim to be insolvent, saying they lack the funds to pay the judgment; the companies made a voluntary assignment of property at a time when they claimed to be without the funds to pay their debts (not only the payment to AnchorBank, but deposits of money into different bank accounts to be used for ongoing restaurant expenses); and Brekken is a representative óf a “person” (the corporations) for purposes of the statute.

Brekken has made no showing that he did not know that a debt was owed to plaintiff or that defendants were insolvent when they paid other debts ahead of the debt to plaintiff.

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Related

United States v. Waddill, Holland & Flinn, Inc.
323 U.S. 353 (Supreme Court, 1945)
United States v. United Mine Workers of America
330 U.S. 258 (Supreme Court, 1947)
United States v. City of New Britain
347 U.S. 81 (Supreme Court, 1954)
Wilson v. United States
221 U.S. 361 (Supreme Court, 1911)

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Bluebook (online)
163 F. Supp. 3d 571, 2015 U.S. Dist. LEXIS 169261, 2015 WL 9255569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equal-employment-opportunity-commission-v-northern-star-hospitality-wiwd-2015.