In re: Lori Mac, Inc.

Opinion

FILED APR 05 2012

1 SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. NC-11-1193-HSaD )

6 LORI MAC, INC., ) Bk. No. 07-30165 )

7 Debtor. ) Adv. No. 07-03136 ______________________________)

8 )

PACIFIC SPORTS SECTION, INC., )

9 )

Appellant, )

10 )

v. ) M E M O R A N D U M1 11 )

E. LYNN SCHOENMANN, Chapter 7 )

12 Trustee; UNITED STATES )

TRUSTEE, San Francisco, )

13 )

Appellees. )

14 ______________________________) 15 Argued and Submitted on January 19, 2012 at San Francisco, California 16 Filed - April 5, 2012

17 Appeal from the United States Bankruptcy Court 18 for the Northern District of California 19 Honorable Thomas E. Carlson, Bankruptcy Judge, Presiding 20 Appearances: James S. Monroe of Monroe Law Group argued for 21 appellant Pacific Sports Section, Inc. Aron Mark Oliner of Duane Morris LLP, argued for appellee, 22 E. Lynn Schoenmann, Chapter 7 Trustee. 23 Before: HOLLOWELL, SALTZMAN,2 and DUNN, Bankruptcy Judges.

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26 This disposition is not appropriate for publication.

Although it may be cited for whatever persuasive value it may 27 have (see Fed. R. App. P. 32.1), it has no precedential value. 28 See 9th Cir. BAP Rule 8013-1.

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The Hon. Deborah J. Saltzman, Bankruptcy Judge for the Central District of California, sitting by designation.

1 The debtor sold a promissory note to appellant, Pacific 2 Sports Section, Inc. (PSS). The bankruptcy court determined that 3 the sale of the note constituted a constructively fraudulent 4 transfer and allowed the Trustee to avoid and recover it for the 5 benefit of the estate. PSS appeals that determination. We 6 AFFIRM. 7 I. FACTS 8 Lori Mac, Inc. (the Debtor) was in the business of servicing 9 mortgages funded by the Federal National Mortgage Association 10 (FNMA) and various credit unions, as well as originating 11 mortgages that it then sold to other lenders. The Debtor 12 received fees for originating loans and for collecting payments 13 on mortgages and remitting them to the owners of the loans. 14 However, the Debtor’s expenses exceeded its income. It used 15 money from its customers’ loan payments to pay for operating 16 expenses and eventually accumulated a significant liability to 17 the lenders. On February 13, 2007, the Debtor filed a chapter 7 18 bankruptcy petition (the Petition Date). E. Lynn Schoenmann was 19 appointed the bankruptcy trustee (the Trustee). 20 The Debtor was a wholly owned subsidiary of TIS Financial 21 Services, Inc. (TISFS). Appellant PSS is also a subsidiary of 22 TISFS. Lorraine Legg (Legg) is the President and Chief Executive 23 Officer of TISFS, as well as of several other affiliated mortgage 24 investment companies that seemingly share rental space in San 25 Francisco with the Debtor. Legg also served as the Debtor’s 26 President and Chief Executive Officer. She is an officer of PSS. 27 On December 6, 2007, the Trustee initiated an adversary 28 proceeding seeking to avoid and recover, under §§ 544, 548 and

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1 550, two transfers it alleged were constructively fraudulent (the 2 Adversary Proceeding). The first transfer involved a promissory 3 note, known as the Ignacio Note, which is discussed more fully 4 below. The second transfer involved a series of cash transfers 5 made by the Debtor to TISFS. The bankruptcy court bifurcated the 6 Adversary Proceeding into two phases, the first to address the 7 transfer of the Ignacio Note; the second to address whether the 8 Trustee could avoid the cash transfers made by the Debtor. This 9 appeal concerns only the Ignacio Note. 10 The Ignacio Note 11 In May 2001, Ignacio Properties LLC (Ignacio) and Legg 12 executed a promissory note in the amount of $335,000 (the Ignacio 13 Note). The Ignacio Note was secured by a second deed of trust on 14 a shopping center in Novato, California, which was operated and 15 managed by a subsidiary of TISFS. 16 In November 2004, Legg assigned the Ignacio Note to the 17 Debtor. On January 31, 2007 (the Transfer Date), within two 18 weeks of the Petition Date, the Debtor executed an Assignment of 19 Mortgage, transferring the Ignacio Note and deed of trust to PSS. 20 PSS paid $260,0003 for the Ignacio Note, but the money was paid 21 to TISFS rather than the Debtor. After the Petition Date, 22 Ignacio refinanced the Property and paid off the Ignacio Note. 23 The proceeds of the Ignacio Note, $530,643.27, are being held in 24 escrow pending the conclusion of the adversary proceeding, 25 including this appeal. 26

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27 The purchase price was $300,000, but there was a $40,000 concession for the cost of certain necessary improvements for the 28 Property.

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1 Factual Dispute 2 While there is no dispute that the Debtor’s financial 3 difficulties rendered it insolvent as of the Petition Date (its 4 debts exceeded its assets), the parties dispute whether the 5 Ignacio Note was transferred for reasonably equivalent value, and 6 therefore, whether it constituted a constructively fraudulent 7 transfer. 8 The Trustee contends that the Debtor received no 9 consideration for the Ignacio Note. PSS, on the other hand, 10 asserts that the consideration the Debtor received was a $260,000 11 reduction in a debt it allegedly owed to TISFS. PSS contends 12 that the Debtor agreed to sell it the Ignacio Note in July 2006, 13 and that PSS agreed to pay for the Ignacio Note in four 14 installments between December 21, 2006, and January 31, 2007. 15 ER 103. Because TISFS routinely paid various operating expenses 16 for the Debtor, Legg believed that the Debtor owed TISFS more 17 than $260,000. Therefore, she directed PSS to make the payments 18 on the Ignacio Note to TISFS, rather than the Debtor, in order to 19 satisfy the Debtor’s debt to TISFS. As a result, PSS argues that 20 the Debtor received reasonably equivalent value for the Ignacio 21 Note. Thus, the central issue in this case is whether the Debtor 22 did, in fact, owe an obligation to TISFS on the Transfer Date. 23 Payment of Expenses 24 TISFS paid many of the Debtor’s (and its other 25 subsidiaries’) operating expenses, including payroll, payroll 26 benefits and rent for the San Francisco office (the Allocated 27 Services). In turn, the Debtor made monthly payments to TISFS 28 for its share of the Allocated Services. However, the Debtor

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1 paid separately the payroll for employees who worked solely for 2 it, rather than those who worked for the Debtor as well as other 3 TISFS subsidiaries (the Direct Services). 4 The Debtor maintained an accounting of payments for Direct 5 Services and Allocated Services. Among those records, three were 6 significantly relied on by the parties as evidencing whether the 7 Debtor owed TISFS money at the Transfer Date: (1) a spreadsheet, 8 which was allegedly a contemporaneously maintained “working 9 document” that tracked the Debtor’s Direct Services payments, the 10 estimated Allocated Services payments, and payments received by 11 the Debtor from TISFS (Trial Ex. 1 or the Spreadsheet); (2) a 12 spreadsheet generated after the Petition Date that listed the 13 Allocated Services paid by TISFS on behalf of the Debtor and its 14 other subsidiaries (Trial Ex. 2 or the Alternate Ledger); and 15 (3) the Debtor’s contemporaneously maintained QuickBooks report, 16 which tracked all payments made between TISFS and the Debtor 17 (Trial Ex. 3 or the Ledger). 18 The bankruptcy court held a three-day trial on the first 19 phase of the Adversary Proceeding. Subsequently, on December 21, 20 2010, the bankruptcy court issued its findings of fact and 21 conclusions of law. The bankruptcy court found that according to 22 the accounting records, the Debtor did not owe a debt to TISFS on 23 the Transfer Date, but rather TISFS owed the Debtor over $1.7 24 million. The bankruptcy court’s finding was based on its 25 determination that TISFS’ payments for Allocated Services were 26 capital contributions to the Debtor (which did not create a debt 27 obligation), and the subsequent payments made by the Debtor to 28 TISFS were, therefore, loans.

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1 The bankruptcy court entered a judgment on April 6, 2011, 2 allowing the Trustee to avoid and recover the Ignacio Note under 3 §§ 548 and 550 for the benefit of the Debtor’s estate. PSS 4 timely appealed. 5 II. JURISDICTION 6 The bankruptcy court had jurisdiction under 28 U.S.C. 7 § 157(b)(2)(H), and § 1334. We have jurisdiction under 28 U.S.C. 8 § 158. 9 III. ISSUE 10 Did the bankruptcy court err in finding that the Debtor did 11 not receive any value for the transfer of the Ignacio Note, 12 rendering it constructively fraudulent? 13 IV. STANDARDS OF REVIEW 14 The bankruptcy court’s findings of fact are reviewed for 15 clear error, while its conclusions of law are reviewed de novo. 16 Decker v. Tramiel (In re JTS Corp.), 617 F.3d 1102, 1109 (9th 17 Cir. 2010). Determining reasonably equivalent value of a 18 transfer is a question of fact. Id.; see also 5 COLLIER ON 19 BANKRUPTCY, ¶ 548.05 (Alan N. Resnick & Henry J. Sommer, eds., 20 16th rev. ed. 2011); Tex. Truck Ins. Agency, Inc. v. Cure (In re 21 Dunham), 110 F.3d 286, 288-89 (5th Cir. 1997) (collecting cases). 22 A finding is clearly erroneous if it is “illogical, 23 implausible, or without support in the record.” Retz v. Samson 24 (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010) (citing United 25 States v. Hinkson, 585 F.3d 1247, 1261-62 & n.21 (9th Cir. 2009) 26 (en banc)). The clearly erroneous standard does not “entitle a 27 reviewing court to reverse the finding of the trier of fact 28 simply because it is convinced that it would have decided the

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1 case differently.” Anderson v. City of Bessemer City, N.C., 2 470 U.S. 564, 573 (1985). Moreover, when factual findings are 3 based on determinations regarding the credibility of witnesses, 4 we give great deference to the bankruptcy court’s findings, 5 because the bankruptcy court, as the trier of fact, had the 6 opportunity to note “variations in demeanor and tone of voice 7 that bear so heavily on the listener’s understanding of and 8 belief in what is said.” Id. at 575; see also Rule 8013. 9 V. DISCUSSION 10 Section 548 allows a trustee to avoid fraudulent transfers. 11 Under this section, a bankruptcy court can set aside “not only 12 transfers infected by actual fraud but certain other transfers as 13 well, so-called constructively fraudulent transfers.” BFP v. 14 Resolution Trust Corp., 511 U.S. 531, 535 (1994). Section 15 548(a)(1)(B) allows for the avoidance of constructively 16 fraudulent transfers of an interest of a debtor in property. 17 In order for the Trustee to avoid the transfer of the 18 Ignacio Note to PSS, she was required to demonstrate that: 19 (1) the Debtor had an interest in property; (2) a transfer of 20 that interest occurred within two years of the filing of the 21 bankruptcy petition; (3) the Debtor was insolvent at the time of 22 the transfer or became insolvent as a result thereof; and (4) the 23 Debtor received less than reasonably equivalent value in exchange 24 for such transfer. Id. Only the fourth element is at issue in 25 this appeal. 26 The bankruptcy court found that the Debtor received less 27 than reasonably equivalent value in exchange for the transfer of 28 the Ignacio Note. The bankruptcy court’s decision on this issue

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1 centered on its finding that there was not an obligation owing by 2 the Debtor to TISFS at the Transfer Date. The key finding in 3 this regard was the bankruptcy court’s determination that TISFS’ 4 payment of Allocated Services constituted capital contributions 5 to the Debtor, which created no corresponding obligation on the 6 part of the Debtor. Therefore, the bankruptcy court determined 7 that the payments the Debtor remitted to TISFS on Allocated 8 Services had to be accounted for as loans under accounting 9 principles. As a result, the bankruptcy court found that the 10 balances due and owing between TISFS and the Debtor as of the 11 Transfer Date indicated that TISFS owed the Debtor more than $1.7 12 million. 13 PSS contends this finding is “unsupported by anything in the 14 record.” PSS asserts that the Spreadsheet and the Alternate 15 Ledger demonstrated that the Debtor was obligated to pay TISFS 16 for its own business expenses–-the Allocated Services and Direct 17 Services. PSS argues that TISFS only acted as a paymaster or 18 conduit for paying those expenses. PSS asserts that the 19 Spreadsheet and the Alternate Ledger demonstrated that TISFS’ 20 payments were not capital contributions but advances to the 21 Debtor, which created an obligation the Debtor was required to 22 repay. As a result, PSS argues that the Debtor owed TISFS an 23 amount greater than $260,000 on the Transfer Date. 24 However, the bankruptcy court did not find the Spreadsheet, 25 Alternate Ledger or Legg’s testimony about the accounting 26 credible. Instead, the bankruptcy court found the testimony of 27 the Trustee’s accounting expert (the Expert) persuasive. The 28 Expert stated that, according to the Ledger, which was

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1 contemporaneously maintained by John Castello, the Chief 2 Financial Officer for both TISFS and the Debtor,4 it appeared 3 that TISFS treated the payment of Allocated Services as capital 4 contributions to the Debtor and treated the Debtor’s payment of 5 its share of the Allocated Services as loans to TISFS. Based on 6 the balances from the Ledger, the Debtor owed nothing to TISFS on 7 the Transfer Date. 8 TISFS’ independent auditor confirmed the figures in the 9 Ledger as fairly representing the balances due between the Debtor 10 and TISFS. Legg and Castello both signed letters confirming the 11 auditors’ findings. 12 Nevertheless, PSS contends that the Ledger is inaccurate 13 because it did not account for TISFIS’ payment of Allocated 14 Services. However, the Expert testified that the only Allocated 15 Service item not provided on the Ledger was the rent, presumably, 16 he opined, to minimize the gap in the Debtor’s capital account 17 that the Debtor was required to maintain for FNMA regulatory 18 purposes. Indeed, the Expert opined that the practice of 19 treating TISFIS’ payments for Allocated Services as capital 20 contributions would serve to increase the Debtor’s capital 21 account, something that was required since the Debtor’s financial 22 situation made it difficult for it to otherwise maintain the 23 minimum capital requirements under FNMA regulations. Hr’g Tr. 24 (Dec. 14, 2010) at 33-34. 25 26 4 Mr. Castello left the employment of TISFIS and the Debtor 27 approximately three months before the Petition Date and did not testify at the trial as to the accounting practices reflected in 28 the Ledger.

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1 It may have been plausible for the bankruptcy court to have 2 inferred from the Alternate Spreadsheet and Legg’s testimony that 3 TISFS’s payments for Allocated Services were advances that the 4 Debtor was obligated to repay. However, it was also plausible 5 for the bankruptcy court to infer that the Ledger, supported by 6 the Expert testimony and audit letters demonstrated that the 7 payments made by TISFS were capital contributions, and thus, did 8 not create a debt obligation between the Debtor and TISFS. 9 Because there were two plausible interpretations of the evidence, 10 the bankruptcy court’s finding that there was no obligation owing 11 by the Debtor to TISFS on the Transfer Date is not clearly 12 erroneous. S.E.C. v. Rubera, 350 F.3d 1084, 1093-94 (9th Cir. 13 2003) (“So long as the district court’s view of the evidence is 14 plausible in light of the record viewed in its entirety, it 15 cannot be clearly erroneous, even if the reviewing court would 16 have weighed the evidence differently had it sat as the trier of 17 fact.”); In re JTS Corp., 617 F.3d at 110 quoting Anderson v. 18 City of Bessemer City, N.C., 470 U.S. at 574 (“[I]f there are two 19 views of the evidence, a court’s choice between them is not 20 clearly erroneous.”). Moreover, we defer to the bankruptcy 21 court’s finding that Legg’s testimony – including that TISFS 22 intended to treat its payment of Allocated Services as advances 23 to the Debtor rather than capital contributions – was not 24 credible. 25 Accordingly, the bankruptcy court’s finding that the Trustee 26 proved the Debtor received less than reasonably equivalent value 27 for the transfer of the Ignacio Note is not clearly erroneous.

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1 VI. CONCLUSION 2 For these reasons, we AFFIRM the judgment of the bankruptcy 3 court allowing the Trustee to avoid and recover the Ignacio Note 4 for the benefit of the estate.