In re Gervais

523 B.R. 334, 2015 Bankr. LEXIS 21, 2015 WL 106634
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedJanuary 7, 2015
DocketNo. 11-43531-MSH
StatusPublished

This text of 523 B.R. 334 (In re Gervais) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Gervais, 523 B.R. 334, 2015 Bankr. LEXIS 21, 2015 WL 106634 (Mass. 2015).

Opinion

MEMORANDUM OF DECISION REGARDING PROCEEDS OF RULE 9019 COMPROMISE

MELVIN S. HOFFMAN, Bankruptcy Judge.

Anne J. White, the chapter 7 trustee of the estate of Joan Gervais, the debtor in this case, and Ms. Gervais’s prepetition divorce counsel, Kimberlie J. Sweet, are parties to a court-approved compromise pursuant to Fed. R. Bankr. P. 9019. Their dispute was over who had the superior claim to $15,377.02 representing Ms. Ger-vais’s share of proceeds from the sale of real estate. Ms. Sweet claimed a right in the proceeds by virtue of her pre-bank-ruptcy attachment of the real estate to secure her claim for unpaid legal fees owed to her by Ms. Gervais. The trustee claimed that the funds were property of Ms. Gervais’s bankruptcy estate. Through the compromise, the trustee and Ms. Sweet agreed that the bankruptcy estate would receive $5,000 of the proceeds and Ms. Sweet would keep the balance. I approved the compromise by order of July 31, 2014. At issue now is whether the $5,000 in settlement proceeds should be paid to Ms. White for the benefit of Ms. Gervais’s creditors, as the settlement provides, or to Ms. Gervais, who asserts an undisputed exemption claim in the funds. For the reasons which follow, I conclude that the settlement proceeds are exempt property that must be paid to Ms. Gervais.

I. Facts

Ms. Gervais filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code (which is title 11 of the United States Code) on August 20, 2011. On schedule B of the schedules of assets and liabilities accompanying her petition, she listed among her personal property “proceeds from sale of marital home August 18, 2011” in the amount of $14,927.02. On schedule C she claimed a $14,927.02 exemption in those proceeds based on § 522(d)(1) of the Bankruptcy Code. In the statement of financial affairs also accompanying her bankruptcy petition, Ms. Gervais noted that Ms. Sweet’s firm was in possession of the $14,927.02 in home sale proceeds.

On May 10, 2013, Ms. Gervais received her discharge under § 727 of the Bankruptcy Code. On November 8, 2013, Ms. Sweet petitioned the court seeking instructions as to the disposition of Ms. Gervais’s home sale proceeds which were being held by her law firm. According to Ms. Sweet, her firm was holding Ms. Gervais’s portion of the net home sale proceeds in the amount of $15,377.02 based on a writ of attachment of the real estate issued by a state court in a lawsuit brought by Ms. Sweet’s firm against Ms. Gervais for $25,727.76 in unpaid prepetition legal fees. Ms. Sweet also claimed that her firm held a statutory attorney’s lien in the sale proceeds. Ms. Gervais filed a response to Ms. Sweet’s petition for instructions asserting that the real estate attachment obtained [336]*336by Ms. Sweet’s law firm had been released. Ms. Gervais did not address Ms. Sweet’s claim of entitlement to the sale proceeds by virtue of a statutory attorney’s lien. A hearing on Ms. Sweet’s petition for instructions was held on January 9, 2014, and the motion was continued generally to enable Ms. Sweet and Ms. White to explore a possible resolution.

On July 1, 2014, Ms. White filed her motion to compromise with Ms. Sweet. Ms. Gervais opposed the compromise, again attacking the validity of Ms. Sweet’s attachment. After a hearing, I concluded that the proposed compromise was a reasonable exercise of Ms. White’s business judgment as to the likelihood of her prevailing in an attempt to recover the home sale proceeds from Ms. Sweet in light of Ms. Sweet’s attorney’s lien claim under Mass. Gen. Laws ch. 221, § 50.1 I approved the compromise over Ms. Gervais’s objection, leaving open for further briefing the question of whether, due to her § 522(d)(1) exemption claim in the sale proceeds, Ms. Gervais would be entitled to receive the $5,000 to be paid by Ms. Sweet to the trustee. The parties having submitted their memoranda, this matter is now ripe for a determination.

II. Positions of the Parties

Ms. Gervais argues that the settlement funds should be paid to her because Ms. White did not object timely to her § 522(d)(1) exemption claim in the home sale proceeds, the source of the settlement funds.2 Ms. White responds that the $5,000 payment is not subject to Ms. Ger-vais’s § 522(d)(1) exemption claim. She characterizes the $5,000 payment as a “carve-out” from funds which were subject to Ms. Sweet’s security interest, concluding that Ms. Gervais’s § 522(d)(1) exemption claim would not apply to those funds. Ms. White asserts that I need never reach the question of whether Ms. Gervais’s § 522(d)(1) exemption claim in the sale proceeds is valid or whether Ms. White should have objected to that exemption claim. According to Ms. White, even if the exemption claim is valid, it doesn’t apply to the settlement proceeds.

III. Discussion

By characterizing the $5,000 settlement proceeds as a “carve-out,” Ms. White is attempting to transform them from their original status as a portion of the home sale proceeds subject to Ms. Gervais’s § 522(d)(1) exemption claim into something entirely different. A carve-out is bankruptcy jargon and “is generally understood to be an agreement by a party secured by all or some of the assets of the estate to allow some portion of its hen proceeds to be paid to others, i.e., to carve out of its lien petition.” Costa v. Robotic Vision Sys., Inc., 367 B.R. 232, 237 (1st Cir. BAP 2007) (quoting In re U.S. Flow Corp., 332 B.R. 792, 796 (Bankr.W.D.Mich.2005) (internal quotations omitted)). Here Ms. White maintains that by virtue of the settlement with Ms. Sweet, the entire amount of $15,377.02 belonged to Ms. [337]*337Sweet, who then earmarked $5,000 to settle Ms. White’s claim to the funds.

While it is possible that a settlement between Ms. White and Ms. Sweet could have been structured along the lines advanced by Ms. White, the one they actually entered into was not. There has never been a determination by the court that Ms. Sweet held a valid secured claim in the home sale proceeds, only that she asserted such a claim which Ms. White disputed. Ms. White made clear in her motion to approve the compromise that she was pursuing a settlement “to avoid the additional time, expense and uncertainty of further negotiations and litigation” as “[t]he estate’s claims against the [proceeds are uncertain in light of the prepetition attachment and disposition of the underlying asset.” The trustee, using her reasonable business judgment, chose to enter into a settlement agreement in lieu of seeking a ruling regarding Ms. Sweet’s secured status. As a result, contrary to Ms. White’s assertion, I have not concluded that Ms. Sweet has a security interest in the home sale proceeds — by virtue of an attorney’s lien, writ of attachment, or otherwise. Without such a determination, Ms. White’s argument that Ms. Sweet is a secured creditor agreeing to a carve-out payment from non-estate assets fails.

Having concluded that the character of the home sale proceeds was not altered as a result of the settlement, I must examine on the merits the validity of Ms. Gervais’s § 522(d)(1) exemption claim and the impact of the trustee’s failure to object to that exemption claim.

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Cite This Page — Counsel Stack

Bluebook (online)
523 B.R. 334, 2015 Bankr. LEXIS 21, 2015 WL 106634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gervais-mab-2015.