López Stubbe v. Rúa (In re Colonial Mortgage Bankers Corp.)

128 B.R. 21, 1991 U.S. Dist. LEXIS 8400
CourtDistrict Court, D. Puerto Rico
DecidedJune 17, 1991
DocketCiv. No. RLA 89-1452 (JAF); Bankruptcy No. B-87-03026 ESL; Adv. No. 88-0060 ESL
StatusPublished
Cited by4 cases

This text of 128 B.R. 21 (López Stubbe v. Rúa (In re Colonial Mortgage Bankers Corp.)) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
López Stubbe v. Rúa (In re Colonial Mortgage Bankers Corp.), 128 B.R. 21, 1991 U.S. Dist. LEXIS 8400 (prd 1991).

Opinion

OPINION AND ORDER

FUSTE, District Judge.

Milton J. Rúa, Jr. and his wife, Denise de Mauret de Rúa, (Rúa), Defendants-Appellants, seek review of a bankruptcy court judgment entered on May 15, 1989 in the case of In re Colonial Mortgage Bankers Inc., Debtor. Mr. Rúa was the president of the debtor corporation, a mortgage company. On December 30, 1987, Colonial filed for relief under Chapter 11 of the Bankruptcy Code. On February 12,1988, a consent order was entered appointing a Chapter 11 operating trustee, Hans López Stubbe, plaintiff-appellee herein (“Trustee”). Rúa complains that 1) the bankruptcy court should not have ordered an accounting against him, since there was no evidence to suggest that he had property or assets belonging to the debtor; 2) an injunction against his transfer of personal assets until the accounting is performed is oppressive since it lacks a time limit and is vague, and 3) the bankruptcy judge’s denial of a setoff against certain of Rúa’s obligations to Colonial was in error.

History of the Proceedings

After appointment the Trustee began an adversary proceeding against the defendants pursuant to 28 U.S.C. § 157(b)(2)(A), (E), and (0). The Trustee sought:

1. The return of $186,116.91 of pre-petition cash advances to Rúa;

[23]*232. An accounting from defendants of all property of Colonial which came into their possession from March 30, 1984 to date;

3. An injunction against transfer of the defendants’ residence at Cerezo No. 4, San Patricio Urbanization, Guaynabo, Puerto Rico; and,

4. An injunction against transfer by the defendants of all assets: (a) which could be used to satisfy a judgment entered against them in favor of the Trustee; (b) which belong to the estate; and (c) which explain the financial affairs of Colonial.

In November of 1988 the claim for an injunction against the sale of the residence at Cerezo No. 4 was dropped by stipulation. The remaining relief was granted.

Standard of Review

In reviewing the factual findings of the bankruptcy judge, we are to apply a clearly erroneous standard. Bankruptcy Rule 8013; Briden v. Foley, 776 F.2d 379 (1st Cir.1985). Exercise of discretion will not be disturbed unless it constitutes abuse. In re Carter, 100 B.R. 123 (Bankr.D.Me.1989).

Accounting

The bankruptcy judge ordered an accounting on the theory that Rúa had commingled Colonial corporate funds with his own personal funds and in the course of doing so made payments and cancellations of debts which benefitted Rúa personally while hurting the corporation. The bankruptcy judge relied on Rúa’s fiduciary duty to the corporation, combined with a pattern of suspicious transfers, to determine that Rúa could be forced to account for all benefits which he had received from the corporation, lest other creditors should be left empty-handed. Rúa acknowledges the propriety of an accounting if there is in fact evidence of commingling and breach of fiduciary duty, but he denies that there is any such evidence on this record.

The bankruptcy judge found the following facts. In the prepetition period, Colonial made advances to Rúa in the amount of $186,116.91. In addition, another $17,-000 was paid by Colonial to banks on account of debts of Rúa. Rúa caused Colonial to pay $47,000 towards the remodeling of the No. 4 Cerezo Street residence in the second half of 1987. Rúa caused Colonial to pay $11,000 on account of a loan which Rúa had obtained to purchase the property. During the last quarter of 1986 and 1987, Rúa caused Colonial to pay $58,152.16 on a loan of Rúa’s issued at Banco Financiero.

The judge also found that Rúa was involved in a “check-kiting” scheme during the relevant period in which checks were rapidly transferred through a series of accounts set up by Rúa. The scheme resulted in deficiencies being left in the accounts of some investors.

Rúa does not dispute any specific finding by the judge. Instead, Rúa generally assails the judge’s conclusion that enough evidence exists to suggest that Rúa’s transactions benefitted Rúa and hurt the corporation to an extent greater than the liabilities to which Rúa has already admitted. Rúa asserts, therefore, that he holds nothing rightfully belonging to Colonial, obviating the need for an accounting. We disagree.

The judge’s findings are more than amply supported by the record. The pattern that emerges is one of a total breakdown between corporate and private funds in the time leading up to the filing of bankruptcy, and a general disregard on the part of Rúa for his professional responsibilities. Rúa was clearly playing a shell game of shifting funds and debts, one that, more likely than not, was designed to make reconstruction of the many transactions difficult. Only through an accounting can the Trustee hope to recreate an accurate picture of the interwoven relationship between the assets and debits of Colonial and Rúa himself.

Injunction Against Transfer of Assets

Having determined that an accounting was necessary to untangle the mess between Rúa’s funds and those properly belonging to Colonial, the judge ordered that all transfers of property “other than in the ordinary course of business” are subject to court approval. (Opinion and [24]*24Order, pp. 16-17). Given the history of Rúa’s fund juggling, it is only reasonable that the court would seek to keep a close eye on the transfers of assets until after the accounting can determine whose assets they actually are. Rúa makes no charge that the bankruptcy judge has refused to grant reasonable requests to transfer property. In fact, the judge allowed the No. 4 Cerezo Street residence to be transferred over the objection of the Trustee. This indicates to us that there is no reason to believe that the injunction is or will be enforced in a particularly opprobrious manner.

Denial of Setoff

Rúa argues that he is entitled to a setoff of any debt he may have to Colonial as a result of post-petition payments that he made to creditors of Colonial. The payments, made possible by the infusion of cash caused by the sale of the Rúas’ residence, canceled a total of $400,747.89 worth of debts that ran against Colonial. Rúa seeks to have that amount setoff against the $186,116.91 in pre-petition advances he received from Colonial (which he admits owing).

The Bankruptcy Code provides for setoff of mutual, pre-petition debts. 11 U.S.C. § 553. Setoffs are only available where they will clearly not interfere with the policy of the bankruptcy laws. Their inherent danger has been recognized recently by the First Circuit:

The orderly reorganization of debtors is the paramount objective of Chapter 11. In attaining that objective, it is important —as, indeed, it is important in administering other chapters of the Bankruptcy Code—that creditors should be treated fairly.

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Bluebook (online)
128 B.R. 21, 1991 U.S. Dist. LEXIS 8400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-stubbe-v-rua-in-re-colonial-mortgage-bankers-corp-prd-1991.