Jones v. Brand (In re Belmonte)

551 B.R. 723
CourtUnited States Bankruptcy Court, E.D. New York
DecidedJune 28, 2016
DocketCase No.: 12-76045-ast; Adv. Pro. No.: 15-8156-ast
StatusPublished
Cited by10 cases

This text of 551 B.R. 723 (Jones v. Brand (In re Belmonte)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Brand (In re Belmonte), 551 B.R. 723 (N.Y. 2016).

Opinion

DECISION AND ORDER GRANTING TRUSTEE’S MOTION TO STRIKE JURY DEMAND AND DENYING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS

Alan S. Trust, United States Bankruptcy Judge

This is an action commenced by the Plaintiff, Harold D. Jones, the chapter 7 trustee of the estate of Alice Phillips Bel-monte (the “Trustee”) against the Defen- < dants, Craig A. Brand and The Brand Law Firm, P.A. (collectively, the “Defendants”) to recover an alleged unauthorized post-petition transfer in the amount of $250,000. Defendants served as counsel to Debtor in various capacities prior and subsequent to the filing of an involuntary case against her and after an order for relief was entered. This action is brought pursuant to 11 U.S.C. §§ 549 and 550 1

Now pending before the Court are two motions: (i) the motion filed by the Trustee to strike Defendants’ jury demand (the “Motion to Strike”); and (ii) Defendants’ motion for judgment on the pleadings (the “Motion for Judgment”) on the Trustee’s Complaint under Rule 12(c) of the Federal Rules of Civil Procedure (“Rules”), as incorporated by Rule 7012 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”). For the reasons stated below, the Motion to Strike is granted and the Motion for Judgment is denied.

Jurisdiction

This Court has jurisdiction to decide the Motion to Strike and the Motion for Judgment pursuant to 28 U.S.C. §§ 157(b) and 1384(b), and the Standing Orders of Reference in effect in the Eastern District of New York dated August 28, 1986, and as amended on December 5, 2012, but made effective nunc pro tunc as of June 23, 2011.

In Exec. Benefits Ins. Agency v. Arkinson, the Supreme Court held that when a bankruptcy court is presented with a claim statutorily designated as core but which it lacks constitutional authority to finally adjudicate, a so called “Stem claim”2, the court is to issue proposed findings of fact and conclusions of law to the district court as it would when hearing non-core [726]*726claims.— U.S.-, 134 S.Ct. 2165, 2170, 189 L.Ed.2d 83 (2014) (referring to 28 U.S.C. § 157(c)(1) and Bankruptcy Rule 9033). Defendants agree that the claims asserted against them by the Trustee are “core,” but they have not expressly consented to the entry of a final order or judgment by this Court, and argue that this Court lacks constitutional authority to enter a final order or judgment on the claims asserted in the Complaint, [dkt items 14,18] This Court disagrees.

First, regardless of whether the Trustee’s claims would qualify as Stem claims, this Decision and Order is interlocutory3, not final, and as such, proposed findings of fact and conclusions of law need not be submitted to the District Court. See Am. Media, Inc. v. Anderson Mgmt. Servs. (In re Anderson News, LLC), 2015 WL 4966236, at *1-2, 2015 U.S. Dist. LEXIS 109896, at *4-6 (D.Del. Aug. 19, 2015); Residential Funding Co., LLC v. UBS Real Estate Sec., Inc. (In re Residential Capital, LLC), 515 B.R. 52, 69 (Bankr.S.D.N.Y.2014).

Second, the Court disagrees that the Trustee’s Complaint implicates the constitutional concerns addressed in Stem and Executive Benefits', unlike the counterclaim at issue in Stem and the fraudulent conveyance claims in Executive Benefits, a Section 549 action is a “special creature” of the Bankruptcy Code that could not exist outside its provisions. See Murphy v. Felice (In re Felice), 480 B.R. 401, 426-28 (Bankr.D.Mass.2012). Moreover, Section 549 does not seek to augment the estate but, rather, to recover property that should never have left the estate. Id. at 428; see also Coan v. MDC Corp. (In re Louis Gherlone Excavating, Inc.), 2014 WL 7246146, at *1 (Bankr.D.Conn. Dec. 19, 2014). As noted below, the Trustee’s Section 550 claim is purely derivative of the Trustee’s Section 549 claim. This Court is therefore not required to submit proposed findings of fact and conclusions of law to the District Court However, this Order is subject to review by the District Court under 28 U.S.C. § 158(a)(3) and, in the event the District Court wishes to treat this Order as proposed findings of fact and conclusions of law,' it certainly may do so pursuant to the authority it vested in this Court when it issued the Standing Orders of reference in effect in this District.4

Further, the District Court may determine to withdraw this matter back, as Defendants have also filed a motion to withdraw the reference [dkt item 13], which remains pending before the District Court; however, the pendency of that motion has no effect on this Court’s continued [727]*727administration of this adversary proceeding. See Fed. R. Banks. P. 5011(c).

With jurisdiction established to issue this decision, this Court now turns to the factual background and legal dispute.

Factual Background and Procedural History

On October 5, 2012, various petitioning creditors5 filed an involuntary chapter 7 petition against Ms. Belmonte (“Debtor”) pursuant to § 303(b) of the Bankruptcy Code. At the time the involuntary petition was filed, Debtor was licensed to practice law in the state of New York. However, the petition sought relief against her for investment-related activities, not for her actions taken as an attorney. Defendants were among the counsel who unsuccessfully represented Debtor in opposing the involuntary petition.

On April 25, 2013, the Court entered an order for relief under chapter 7. [main case dkt item 88] Shortly thereafter, an interim trustee was appointed. On June 12, 2013, the Office of the United States Trustee filed a report certifying the results of an election of a trustee conducted pursuant to § 702. [main case dkt item 104] Mr. Jones was elected and subsequently appointed as the chapter 7 trustee of Debt- or’s bankruptcy estate.

The Trustee, as plaintiff, commenced this adversary proceeding on April 22, 2015 (the “Complaint”). The Complaint, as amended, asserted two causes of action for the avoidance and recovery of an alleged unauthorized post-petition transfer in the amount of $250,000, pursuant to Bankruptcy Code §§ 549 and 550. [dkt item 12] According to the Complaint, in January 2014, after the order for relief had been entered, Debtor and her husband borrowed $250,000 from a Patrick Thompson and granted Mr. Thompson a second mortgage against their home to secure the loan (the “Thompson Mortgage”).

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Bluebook (online)
551 B.R. 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-brand-in-re-belmonte-nyeb-2016.