In re JMW Auto Sales

494 B.R. 877, 2013 WL 2321691, 2013 Bankr. LEXIS 2184, 58 Bankr. Ct. Dec. (CRR) 6
CourtUnited States Bankruptcy Court, S.D. Texas
DecidedMay 29, 2013
DocketNos. 07-37770, 07-37364, 08-03062
StatusPublished
Cited by4 cases

This text of 494 B.R. 877 (In re JMW Auto Sales) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re JMW Auto Sales, 494 B.R. 877, 2013 WL 2321691, 2013 Bankr. LEXIS 2184, 58 Bankr. Ct. Dec. (CRR) 6 (Tex. 2013).

Opinion

MEMORANDUM OPINION

MARVIN ISGUR, Bankruptcy Judge.

The Court must determine whether Lowell Cage must be removed as the chapter 7 Trustee in this case. Because the Court has determined that Cage has faithfully honored his duties as Trustee, he will not be removed.

Mr. Cage has recovered approximately $1.5 million dollars in his capacity as Trustee for the Estate. With Court approval, the Trustee retained his own law firm, Cage, Hill & Niehaus, L.L.P. (“Cage Hill”) as counsel. In its Third Interim Fee Application, Cage Hill requested total fees in the amount of $748,856.65. Despite this substantial recovery, the distributions to creditors will be minimal because of the high litigation costs incurred by the Estate. Nevertheless, a substantial award of additional legal fees is justified.

Events Giving Rise to Show Cause Order

At the hearing on the Third Interim Fee Application, the Court learned that Sonny Adams, an employee of the Estate, received a vehicle from the Estate’s largest creditor (Automotive Finance Corporation, hereinafter “AFC”), and did not provide consideration for the vehicle. Certain former investors alleged that this “gift” of the vehicle led to decisions by Mr. Cage that were unreasonably favorable to AFC.

At the hearing, it was readily apparent that Mr. Cage and many of the claimhold-ers strongly dislike one another.1

If Cage Hill’s application had been approved as originally filed, substantially all of the Estate’s funds would have been paid either to Mr. Cage, his lawyers, or AFC.

These facts raised concerns as to whether Mr. Cage remained in a position to objectively serve in his capacity as trustee of the Estate. Mr. Cage indicated his view that it was in the best interests of the Estate for him to remain as Trustee. The Court issued a show cause order to determine whether Mr. Cage should remain as trustee.

The Role of a Chapter 7 Trustee

Section 324(a) of the Bankruptcy Code makes the trustee the representative [881]*881of the bankruptcy estate. In re Bechuck, 472 B.R. 371, 375 (Bankr.S.D.Tex.2012). Indeed, a trustee is vested with extraordinary rights as the general representative of an estate’s creditors. Ingalls v. Erlewine (In re Erlewine), 349 F.3d 205, 210 (5th Cir.2003) (citing, Coleman v. Alcock, 272 F.2d 618, 621-22 (5th Cir.1960)). In that capacity, the Chapter 7 trustee serves as a fiduciary to the estate. Love v. Tyson Foods, Inc., 677 F.3d 258 (5th Cir.2012).

The duties of a trustee are of great import to preserving the integrity and efficiency of the bankruptcy system. Accusations or appearances of impropriety by a trustee should not be taken lightly. Courts should investigate serious accusations against trustees to uphold public confidence in the integrity of the bankruptcy system.

Based on this precept, the Court issued its Order to Show Cause. ECF No. 654. Hearings were held over a three month period. A total of 25.5 hours of Court time were consumed. 47 exhibits were offered into evidence. Five witnesses testified in the Trustee’s case-in-chief. Five witnesses testified in the Respondent’s case-in-chief. Following these extensive hearings, the Court is firmly convinced that Mr. Cage has fully satisfied his fiduciary obligations and should not be removed as the chapter 7 trustee.

Background

On October 31, 2007 an involuntary chapter 7 petition was filed on behalf of JMW Auto Sales, L.L.C. (“JMW”). Case No. 07-37364. The principals of JMW, Marvin and Joan Moye filed a voluntary chapter 7 petition on November 6, 2007. Case No. 07-37770.

Prior to the bankruptcy filings, JMW was in the retail used car business and provided in-house financing on its vehicles. Waite, et al. v. Cage (In re Moye), 458 Fed.Appx. 385, 387 (5th Cir.2012). In order to obtain in-house financing from JMW, purchasers would execute a retail installment sales contract. Id. JMW generated additional cash-flow by selling pools of installment contracts to outside investors. Id.

The sales of the installment contracts were memorialized by a generic Master Purchase and Sale Agreement (“PSA”). Id. The parties often ignored the terms of the PSA. Id. at 388. For example, JMW would often remit monthly distributions to a pool participant equal to the full amount of principal and interest due, regardless of the amount actually collected by JMW. Id. Consequently, JMW was unable to continue making payments to the pool participants. To generate needed cash, JMW sold certain of the installment contracts to a third party, Mid-Atlantic Finance Company, (“Mid-Atlantic”), at a discounted price. Id. A portion of the proceeds of the sale to Mid-Atlantic were paid to pool participants. Id. at 388-89. At the time of the petition JMW’s inventory included approximately 100 vehicles.

Subsequent to the Moyes filing their voluntary petition, Lowell Cage was appointed chapter 7 trustee in the voluntary case. On November 13, 2007, the Court issued an Agreed Order for Relief in an Involuntary Case Requiring Appointment of a Chapter 7 Trustee and Interim Provision for Filing Schedules in the JMW Case. ECF No. 50 at 1. Mr. Cage was appointed chapter 7 trustee in the JMW case as well. ECF No. 50 at 1. On December 3, 2007, the Court issued an Order for Joint Administration of Case No. 07-37364 and Case No. 07-37770.

On December 20, 2007, the Trustee filed his Application for Retention of Counsel for the Trustee, (ECF No. 50), seeking to employ a law firm in which Cage is a partner, Cage Hill. On January 1, 2008, [882]*882the Court issued its Order Authorizing Employment of Counsel. ECF No. 72.

On April 27, 2012, Cage Hill filed its Third Interim Application for Compensation by Attorney for Trustee, Cage, Hill & Niehaus, L.L.P. for Period July 29, 2010 through March 31, 2012 (the “Application”). ECF No. 627. Cage Hill sought fees in the amount of $320,806.00 resulting in total fees requested in the Application and all prior applications of $748,856.65.2 ECF No. 627 at 1.

On May 18, 2012, several creditors filed their Response Opposing the Third Interim Application for Compensation by Attorney for Trustee.3 ECF No. 629.

The 2001 Lexus

A hearing was held on the Application on October 5, 2012. At the October 5 hearing, Sonny Adams (a former employee of JMW and the Trustee) testified that he received a 2001 Lexus L430 automobile (the “Lexus”) from the Moyes as an employment perk. Mr. Adams testified that title to the Lexus was signed over to him by Mrs. Joan Moye. On May 30, 2008, Judge Steen (then the presiding judge over this bankruptcy case) issued an Order declaring the post bankruptcy transfer of the Lexus to Adams a void transaction. Judge Steen also denied the Trustee’s motion to authorize a nunc pro tunc transfer of the Lexus.4 ECF No. 148. Mr. Adams testified that within a few days following Judge Steen’s order, he returned the Lexus and its title to the Trustee’s office. The Lexus was returned to AFC. Mr. Adams then sought to acquire the Lexus from AFC.

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Cite This Page — Counsel Stack

Bluebook (online)
494 B.R. 877, 2013 WL 2321691, 2013 Bankr. LEXIS 2184, 58 Bankr. Ct. Dec. (CRR) 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jmw-auto-sales-txsb-2013.