In re Canopy Financial, Inc.

708 F.3d 934, 69 Collier Bankr. Cas. 2d 464, 2013 WL 709623, 2013 U.S. App. LEXIS 4122, 57 Bankr. Ct. Dec. (CRR) 170
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 28, 2013
DocketNo. 12-3239
StatusPublished
Cited by6 cases

This text of 708 F.3d 934 (In re Canopy Financial, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Canopy Financial, Inc., 708 F.3d 934, 69 Collier Bankr. Cas. 2d 464, 2013 WL 709623, 2013 U.S. App. LEXIS 4122, 57 Bankr. Ct. Dec. (CRR) 170 (7th Cir. 2013).

Opinion

EASTERBROOK, Chief Judge.

Canopy Financial developed and marketed software for banks and health-care payers to handle health-related savings and spending accounts. It also administered the health-care funds of almost 2,000 entities. When Canopy entered bankrupt[935]*935cy in 2009, it became clear that Anthony Bañas and Jeremy Blackburn had misappropriated more than $90 million from both Canopy’s investors and the customers that had placed money under its management. Bañas and Blackburn pleaded guilty to fraud, and each was sentenced to more than a decade’s imprisonment. Blackburn committed suicide the day before he was to report; Bañas is in prison.

Gus Paloian, the Trustee for the benefit of Canopy’s creditors, has recovered about $50 million by seizing assets such as two 2010 Range Rover SUVs, a 2009 Bentley, a 2008 Lamborghini, a 2010 Lamborghini, a 2009 Rolls Royce Phantom, a 2009 Aston Martin DBS, a 2009 Bentley Continental, and a 2009 Ferrari 430, all of which Blackburn had in the garage of his mansion (which itself had been purchased with Canopy’s money). Paloian is trying to recover more by clawing it back from recipients of fraudulent conveyances — that is, transfers made while Canopy was insolvent, and not in exchange for reasonably equivalent value. See 11 U.S.C. §§ 544(b), 548, 550, and' Illinois’s version of the Uniform Fraudulent Transfer Act, 740 ILCS 160/1 to 160/12.

Buddha Entertainment is among the businesses in Paloian’s sights. Buddha operates nightclubs, including TAO in Las Vegas’s Venetian Hotel and Casino. According to the Trustee’s complaint, Bañas and Blackburn spent more than $80,000 of Canopy’s money at TAO during several visits. The complaint maintains that Canopy received no value in exchange.

Buddha has a registered agent for service of process. In October 2011 the Trustee served the complaint and summons on that agent, located in Carson City, Nevada. Buddha did not answer. In December 2011 the Trustee filed a motion for default; that motion, too, though sent to Buddha’s agent, did not lead to a response. Bankruptcy Judge Wedoff declared Buddha to be in default and entered a judgment requiring it to disgorge the amounts it had received from Canopy. That judgment was sent to Buddha’s registered agent.

When Buddha neither paid nor appealed, the Trustee began to collect from its assets in Nevada. That at last provoked a response. Buddha filed a motion under Fed. R. Bankr.P. 9024, which with three irrelevant provisos incorporates Fed. R.Civ.P. 60(b). The motion asked the bankruptcy judge to vacate the default under Rule 60(b)(1), which permits relief from a judgment that depends on “mistake, inadvertence, surprise, or excusable neglect”. Counsel asserted that Buddha had not received any of the Trustee’s filings and that failure to respond was therefore “excusable neglect.” The bankruptcy judge denied the motion, stating among other things that a litigant is “responsible for the acts of [its] registered agent.” A district judge affirmed. 2012 WL 3880202, 2012 U.S. Dist. Lexis 126884 (N.D.I11. Aug. 31, 2012).

Buddha’s principal argument on appeal is that the bankruptcy judge made a legal error when stating: “the Seventh Circuit has said that once a default judgment is entered, good cause is not shown by the allegation that a registered agent failed to submit the pleadings to the defendant.” And Buddha is right that the seventh circuit has never said this, though courts within the circuit (bankruptcy and district judges) have so held. Imprecise phrasing is common in oral statements of reasons, such as the bankruptcy judge’s. This court would not like to be bound by judges’ statements at oral argument, as opposed to our written opinions.

Buddha finds comfort in the holding of Robb v. Norfolk & Western Ry., 122 [936]*936F.3d 354 (7th Cir.1997), that, in principle, an attorney’s negligence in meeting a filing deadline could be “excusable neglect” for the purpose of Rule 60(b)(1). What is true for lawyers must be true for other agents, Buddha maintains. Perhaps the bankruptcy judge would have agreed, had Buddha brought Robb to his attention. But it did not. It is hard to fault the judge for failing to find the decision on his own. The bankruptcy judge thought it disposi-tive that an agent’s acts and omissions usually are attributed to the principal. That’s a precept of unquestionable validity. See, e.g., United States v. 7108 West Grand Avenue, 15 F.3d 632 (7th Cir.1994).

Robb was based on Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), which held that an attorney’s inadvertent failure to file a proof of claim could be “excusable neglect” within the meaning of Fed. R. Bankr.P. 9006(b)(1). The Supreme Court held that a trial judge has discretion to excuse some kinds of negligent errors while finding others inexcusable, which implies that appellate review is deferential. Buddha wants us to hold that the bankruptcy judge abused his discretion in finding its agent’s errors not excusable. Yet we do not know the circumstances of those errors — indeed, we do not know that the agent erred. The fault may lie entirely with Buddha. Pioneer Investment Services describes excusable neglect as an “equitable” standard that requires the court to take “account of all relevant circumstances surrounding the party’s omission.” 507 U.S. at 395, 113 S.Ct. 1489. Without knowing those circumstances, a court cannot apply the standard.

The affidavits filed in bankruptcy court were phrased oddly. Although Buddha’s brief describes them as saying that the business never received notice of the proceeding, what the affidavits actually say is that two particular managers do not have an “independent recollection” of receiving the complaint and summons; the affidavits are silent about the motion for default. For all we know, then, Buddha received (and the managers recall receiving) the motion for default — yet Buddha did nothing. Such a neglect could not be excused.

The affidavits’ use of “recollection” is not the only curious matter. The most telling thing about this record is its thinness. Neither in the bankruptcy court, nor later, did Buddha provide evidence from the agent it hired to accept service. At least seven things might have happened to the complaint and other documents: (a) they never reached the agent; (b) they reached the agent but were not forwarded to Buddha; (c) the agent sent them to Buddha but they were lost in transit; (d) the documents reached Buddha but were not routed to the people supposed to receive them; (e) the documents reached the designated people at Buddha, but not the persons who filed affidavits; (f) the documents reached the affiants, who did nothing and forgot about them; (g) the documents reached the affi-ants, who did nothing and are not telling the truth about their memory.

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Bluebook (online)
708 F.3d 934, 69 Collier Bankr. Cas. 2d 464, 2013 WL 709623, 2013 U.S. App. LEXIS 4122, 57 Bankr. Ct. Dec. (CRR) 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-canopy-financial-inc-ca7-2013.