In re Silverman

76 B.R. 953, 1987 Bankr. LEXIS 1322
CourtDistrict Court, S.D. New York
DecidedAugust 19, 1987
DocketBankruptcy No. 77 B 2988
StatusPublished

This text of 76 B.R. 953 (In re Silverman) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Silverman, 76 B.R. 953, 1987 Bankr. LEXIS 1322 (S.D.N.Y. 1987).

Opinion

DECISION ON OBJECTIONS TO APPLICATIONS FOR FEE.S

HOWARD SCHWARTZBERG, Bankruptcy Judge.

Applications for final allowance were made by the trustee in bankruptcy, his counsel and by the trustee who was authorized to retain himself as special counsel to attempt to negotiate settlements in what appeared to be a no-asset bankruptcy case under the former Bankruptcy Act of 1898.

The bankrupt, Isaac Silverman, had originally filed a petition for a real estate arrangement under Chapter XII of the former Bankruptcy Act on December 23,1977, which was aborted by an adjudication in bankruptcy on May 12, 1978, at which time Arthur Rosenfeld was appointed as the trustee in bankruptcy. Leucadia Inc., [954]*954which acquired the real estate assets of James Talcott, Inc., held a blanket mortgage against the bankrupt’s properties in Westchester County, New York and against three properties owned by the bankrupt in New York City. Additionally, Leucadia also obtained an assignment from Chase Manhattan Realty Trust of a mortgage on the Westchester properties superi- or to the blanket mortgage. After foreclosing on the various mortgages, Leucadia obtained a deficiency judgment against the bankrupt in the sum of $10,140,139.64. The bankrupt objected to Leucadia’s unsecured claim and attempted to establish that there was a surplus available to the estate so that he had standing to file an objection to the claim. This court concluded that there was no merit to the bankrupt’s position that a surplus existed and ruled that a bankrupt may object to creditors’ claims only in cases where there was no trustee who could properly object or where a disal-lowance of the claim objected to would produce a surplus for the bankrupt. In re Silverman, 10 B.R. 734 (Bankr.S.D.N.Y.1981) aff'd 37 B.R. 200 (S.D.N.Y.1982, Sweet, D.J.).

Leucadia’s secured claim exceeded eighteen million dollars. There was a determination by this court that there was no equity for unsecured creditors. The trustee in bankruptcy had insufficient funds to pay taxes or to maintain the mortgage payments. Accordingly, the trustee obtained court authorization to sell his interest to Leucadia for $10,000 and to deliver a release to Leucadia of all causes of action or defenses which the trustee might have with respect to the foreclosure actions or Leucadia’s liens against the properties in question. The trustee had retained an accountant to determine whether or not the estate might have a claim against Leucadia for usury. The accountant examined what records were available with the result that the trustee concluded that he had no basis for asserting any claims against Leucadia. The Leucadia advances (then known as Tal-cott) were made to corporations controlled by the bankrupt. After the advances, the bankrupt reconveyed the mortgaged real estate to himself, personally. Accordingly, the estate ultimately consisted of the $10,-000 that Leucadia paid to the trustee for his assignment of his interest in the secured properties.

The trustee had little cooperation and much opposition from the bankrupt, whose discharge was denied by this court for his failure to keep any financial records as to his personal affairs or as to the whereabouts of the amounts he withdrew from his business and his refusal to obey five previous orders of this court. In re Silverman, 10 B.R. 727 (Bankr.S.D.N.Y.1981).

The trustee attempted to impress a trust on certain real estate owned by the bankrupt’s first wife in Florida when she died. However, the bankrupt argued that the trustee could only stand in the bankrupt’s shoes and that the bankrupt could not inherit from his wife because he was a bigamist and that he married his second wife and had children by her without the benefit of a divorce from the first wife. Accordingly, the bankrupt argued that his children by his first wife should inherit the Florida property. This court ruled that a bigamist’s right to inherit from his wife was controlled by Florida law and that the trustee should submit his claim with respect to the Florida real estate in Surrogate’s Court in Florida. In re Silverman, 15 B.R. 843 (Bankr.S.D.N.Y.1981). The trustee ultimately settled this claim for approximately $8,000.

The trustee filed a complaint with this court on June 1, 1983, seeking an order declaring that Silverman Holding Corporation, a corporation of which the bankrupt’s children were principal shareholders, was an alter ego of the bankrupt and that the assets of this corporation were property of the estate. The trustee sought to pierce the corporate veil for the benefit of the estate.

The trustee also attempted to assert an interest in a loft building located at 122 East 25th Street, New York City. The bankrupt did not list this building as an asset when the Chapter XII was filed. He later claimed ownership of the property by conveyance from a corporation called Grand-White Realty Corp., which did own [955]*955this building. On July 6, 1977, prior to the filing of the Chapter XII petition, the City of New York had commenced an in rem foreclosure action against the loft building for unpaid real estate taxes. An in rem foreclosure judgment was entered against the building on May 10, 1978. The property was sold for $1,575,000, and after the payment of the taxes due New York City, there remained a surplus of approximately $1,300,000.

The 122 Corp., in which the bankrupt’s children had an interest, purported to hold a mortgage against the property and claimed the surplus to the extent of the mortgage. The City claimed the surplus as a windfall under its tax foreclosure. The trustee in bankruptcy claimed an interest in the proceeds because during the course of the bankruptcy proceeding, in September of 1980, the bankrupt produced an unrecorded deed purporting to convey the property to himself from Grand-White Realty Corp. Meanwhile, the mortgagee, 122 Corp., had commenced an action against the City of New York in the New York Supreme Court to overturn the in rem foreclosure judgment, on the theory that the mortgagee’s rights were superior to those of the bankrupt and that the City obtained the property subject to the mortgage. This court had ruled that the trustee’s interest was wiped out as a result of the City’s in rem foreclosure action. In re Silverman, 45 B.R. 892 (Bankr.S.D.N.Y. 1985). Thus, the amount that the City realized from the sale in excess of its tax claim constituted a profit to the City arising out of its ownership of the property, which the City could keep without offending the distribution scheme under the Bankruptcy Act because the profit was not part of the bankruptcy estate.

Accordingly, the trustee had an estate which could pay nothing to unsecured creditors. Instead of giving up, the trustee, acting as his own special counsel, as authorized by this court, attempted to produce an estate from nothing. He pursued negotiations with the City of New York and the mortgagee and ultimately obtained a settlement, notwithstanding his shaky legal position. All of the trustee’s claims against corporations involving the bankrupt’s children were also settled pursuant to an agreement approved by this court on August 29, 1986. As a result , of this settlement, negotiated by the special counsel, the estate received $860,000 from the City of New York, of which $244,443 was paid to the mortgagee in settlement of its claim.

Additionally, the special counsel negotiated a sale of a mortgage held by Silverman Holding Corporation, which was claimed to be the bankrupt’s alter ego.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
76 B.R. 953, 1987 Bankr. LEXIS 1322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-silverman-nysd-1987.