In re Dzierzawski

518 B.R. 415, 2014 Bankr. LEXIS 4133, 2014 WL 4808855
CourtUnited States Bankruptcy Court, E.D. Michigan
DecidedSeptember 26, 2014
DocketNo. 13-47986
StatusPublished
Cited by12 cases

This text of 518 B.R. 415 (In re Dzierzawski) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Dzierzawski, 518 B.R. 415, 2014 Bankr. LEXIS 4133, 2014 WL 4808855 (Mich. 2014).

Opinion

OPINION REGARDING VULPINA LLC’S MOTION FOR DERIVATIVE STANDING TO PURSUE FRAUDULENT TRANSFER CLAIMS

THOMAS J. TUCKER, Bankruptcy Judge.

I.Introduction

This case is before the Court on a motion by creditor Vulpina LLC (“Vulpina”) entitled “Vulpina LLC’S Motion for Derivative Standing To Pursue Fraudulent Transfer Claims” (Docket # 175, the “Motion”). Vulpina seeks an order granting it derivative standing to pursue, on behalf of the bankruptcy estate, fraudulent transfer claims against Kimberly Dzierzawski, the Debtor’s wife, relating to the Debtor’s purported prepetition transfer of 99% of his 100% membership interest in Vinifera Wine Company, LLC.

The Debtor and Kimberly Dzierzawski filed objections to the Motion. The Chapter 7 Trustee did not object to the Motion, but rather, supports the Motion. In fact, the Trustee entered into a stipulation with Vulpina on August 11, 2014, regarding terms and conditions of Vulpina’s anticipated prosecution of the claims on behalf of the bankruptcy estate.1

The Court held a hearing on the Motion on September 17, 2014, and took the Motion under advisement. For the following reasons, the Court will grant the Motion.

II.Jurisdiction

This Court has subject matter jurisdiction over this contested matter under 28 U.S.C. §§ 1384(b), 157(a) and 157(b)(1), and Local Rule 83.50(a) (E.D.Mich.). This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(A) and 157(b)(2)(0).

This proceeding also is “core” because it falls within the definition of a proceeding “arising in” a case under title II, within the meaning of 28 U.S.C. § 1334(b). Matters falling within this category in § 1334(b) are deemed to be core proceedings. See Allard v. Coenen (In re Trans-Industries, Inc.), 419 B.R. 21, 27 (Bankr.E.D.Mich.2009). This is a proceeding “arising in” a case under title 11, because it is a proceeding that “by [its] very nature, could arise only in bankruptcy cases.” See id. at 27.

III. Discussion

A. The Sixth Circuit requirements for derivative standing in a Chapter 7 case

In Hyundai Translead, Inc. v. Jackson Truck & Trailer Repair, Inc. (In [418]*418re Trailer Source, Inc.), 555 F.3d 231, 243-45 (6th Cir.2009), the United States Court of Appeals for the Sixth Circuit held that a bankruptcy court may grant standing to a creditor in a Chapter 7 case to pursue claims on behalf of the bankruptcy estate, when the creditor meets the requirements for derivative standing set forth in Canadian Pac. Forest Prods. Ltd. v. J.D. Irving, Ltd. (In re The Gibson Group, Inc.), 66 F.3d 1436 (6th Cir.1995). In Gibson Group, a Chapter 11 case, the Sixth Circuit held that the following requirements must be met for such standing to be granted:

[A] bankruptcy court may permit a single creditor in a Chapter 11 case to initiate an action to avoid a preferential or fraudulent transfer instead of the debtor-in-possession if the creditor: 1) has alleged a colorable claim that would benefit the estate, if successful, based on a cost-benefit analysis performed by the bankruptcy court; 2) has made a demand on the debtor-in-possession to file the avoidance action; 3) the demand has been refused; and, 4) the refusal is unjustified in light of the statutory obligations and fiduciary duties of the debtor-in-possession in a Chapter 11 reorganization. We also hold that, while the creditor has the initial burden to allege facts showing that the refusal to file suit is “unjustified,” the debtor-in-possession must rebut the presumption if the creditor carries its initial burden. Contrary to the district court’s view, we believe that a creditor need not plead facts alleging the debtor-in-possession’s reason or motive for the inaction, but may meet its burden to allege unjustified inaction through notice pleading by alleging the existence of an unpursued colorable claim that would benefit the estate. See Fed.R.Civ.P. 8; Fed.R.Bankr.P. 7008 (making Fed.R.Civ.P. 8 applicable in bankruptcy adversary proceedings). If the debtor-in-possession gives no reason for its inaction when a demand is made, the bankruptcy court may presume that its inaction is an abuse of discretion (“unjustified”) if the complaint alleges a colorable claim.

Gibson Group, 66 F.3d at 1438-39 (emphasis added). Later in its opinion, the Sixth Circuit stated the fourth of the requirements quoted above in slightly different words:

In conclusion, we hold that a creditor or creditors’ committee may have derivative standing to initiate an avoidance action where: 1) a demand has been made upon the statutorily authorized party to take action; 2) the demand is declined; 3) a colorable claim that would benefit the estate if successful exists, based on a cost-benefit analysis performed by the court, and 4) the inaction is an abuse of discretion (“unjustified”) in light of the debtor-in-possession’s duties in a Chapter 11 case. A creditor has met its burden to show standing to file an avoidance action if it has fulfilled the first three requirements and the trustee or debtor-in-possession declined to take action without stating a reason. The burden then shifts to the debtor-in-possession to establish, by a preponderance of the evidence, that its reason for not acting is justified.

Id. at 1446 (emphasis added). Thus, the court equated “unjustified” with and “abuse of discretion” in this context.

Later, in Trailer Source, the Sixth Circuit summarized the Gibson Group requirements for derivative standing by stating Gibson Group’s “colorable claim ...” requirement in a different way:

In Gibson Group, we held that a party moving for derivative standing must [419]*419show that: (1) a demand was made on the trustee (or debtor-in-possession) to act, (2) the trustee (or debtor-in-possession) declined, (3) a colorable claim exists that would benefit the estate, and (4) the trustee’s (or debtor-in-possession’s) inaction was an abuse of discretion. 66 F.3d at 1446.

Trailer Source, 555 F.3d at 244-45 (emphasis added). Thus, the difference is that Gibson Group stated the “colorable claim” requirement as this: “the creditor ...

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Cite This Page — Counsel Stack

Bluebook (online)
518 B.R. 415, 2014 Bankr. LEXIS 4133, 2014 WL 4808855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dzierzawski-mieb-2014.