Shaffer v. Bird (In re Bird)

513 B.R. 104
CourtUnited States Bankruptcy Appellate Panel for the Eighth Circuit
DecidedJuly 8, 2014
DocketBAP No. 14-6003
StatusPublished
Cited by2 cases

This text of 513 B.R. 104 (Shaffer v. Bird (In re Bird)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shaffer v. Bird (In re Bird), 513 B.R. 104 (bap8 2014).

Opinion

NAIL, Bankruptcy Judge.

Allen W. Bird, II appeals the January 7, 2014 judgment of the bankruptcy court1 determining the debt he owes to Larry Shaffer is nondischargeable. We affirm.

BACKGROUND

In August 1986, Bird was appointed trustee in three related corporate chapter 11 bankruptcy cases in the Western District of Arkansas, which were subsequently consolidated for purposes of administration. Bird served as the trustee of the consolidated case — In re NWFX, Inc., Bankr.No. 86-15148 — for almost thirteen years.

When Bird filed his final report and account and application for final decree in NWFX, Shaffer, the equity security holder of the three corporate debtors, challenged Bird’s handling of the case. The NWFX court found Bird had breached his fiducia[106]*106ry duty to the bankruptcy estate in a number of ways and further found Bird had committed fraud on the bankruptcy estate and the court. In re NWFX, Inc., 267 B.R. 118, 253-56 (Bankr.W.D.Ark. 2001). As a consequence of Bird’s fraud, the NWFX court ordered Bird to repay $199,979.26 to the bankruptcy estate for interim trustee fees he had received from the bankruptcy estate. Id. at 255.

In August 2003, the NWFX court entered judgment against Bird in favor of the bankruptcy estate for $199,979.26 plus interest from June 22, 2001. The judgment was assigned to Shaffer, and in September 2012, following an unsuccessful appeal to the Arkansas Court of Appeals by Bird, Shaffer was allowed to register the judgment as a foreign judgment in the Washington County (Arkansas) Circuit Court. Bird v. Shaffer, 2012 Ark.App. 464, 2012 WL 3854886 (Ark.App.2012).

In November 2012, Bird filed his own petition for relief under chapter 11 of the bankruptcy code in the Eastern District of Arkansas. Shaffer filed a complaint to determine the dischargeability of the debt underlying the judgment. On Shaffer’s motion for summary judgment under 11 U.S.C. § 523(a)(4),2 the bankruptcy court, relying in large part on the findings in the NWFX decision, concluded the debt was nondischargeable and entered a judgment to that effect. Bird appealed.

STANDARD OF REVIEW

We review de novo the bankruptcy court’s grant of summary judgment. Mwesigwa v. DAP, Inc., 637 F.3d 884, 887 (8th Cir.2011). “We will affirm the grant of summary judgment if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(a)).3

DISCUSSION

On appeal, Bird raises only two issues: (1) “[wjhether the record, when viewed in the light most favorable to Bird, shows that Shaffer was entitled to judgment as a matter of law such that Shaffer’s claim against Bird is non-dischargeable in its entirety”; and (2) “[wjhether the record, when viewed in the light most favorable to Bird, shows that Shaffer’s claim is enforceable against Bird such that Shaffer was entitled to judgment as a matter of law.”

With respect to the first issue, Bird argues, without elaboration, Shaffer “has failed to present any evidence in support of [his] argument.” This argument is without merit. In his statement of undisputed material facts in support of his motion for summary judgment (adv. doc. 25), Shaffer specifically “incorporated as if set out word for word” the findings in the NWFX decision. As noted above, that decision included a finding that Bird had breached his fiduciary duty to the bankruptcy estate and a further finding that Bird had committed fraud on the bankruptcy estate and the court. Cf. 11 U.S.C. § 523(a)(4).

In his statement of disputed facts in support of his objection to Shaffer’s motion for summary judgment (adv. doc. 31), Bird did not dispute either of those findings. In fact, in his brief in support of his objection to Shaffer’s motion for summary judgment (adv. doc. 28), Bird admitted “[tjhere is no dispute that Bird’s service as trustee in the matter of In re NWFX, Inc. was in [107]*107a fiduciary capacity. Further, there is no dispute that the In re NWFX, Inc. court found Bird to have committed fraud on the debtor corporations’ estates and the court.”

Bird then argues, without pointing us to anything in the record to support his argument, “the fees that were found by the In re NWFX, Inc. court to have been received by Bird as a result of his fraudulent conduct were repaid to the [bankruptcy] estate. Therefore, the Judgment which forms the basis of [Shaffer’s] claim consists only of amounts that were appropriately paid to Bird without any indicia of fraud.” We disagree.

The NWFX court did discuss at length several payments it found to be fraudulent: a total of $88,000 that was paid to Bird or the Rose Law Firm for trustee fees and $41,527 that was paid to the Rose Law Firm for state bond fees. NWFX, 267 B.R. at 193-99. However, the NWFX court did not order disgorgement of only those payments. To the contrary, it stated repeatedly it was ordering disgorgement of Bird’s entire trustee fee and it stated repeatedly it was doing so because of Bird’s fraud on the bankruptcy estate and the court. Id. at 221, 255, 258. Consequently, even if Bird’s fraud was in fact limited to the specified payments, the penalty imposed by the NWFX court, i.e., the debt for fraud or defalcation while acting in a fiduciary capacity, was Bird’s entire trustee fee. See Cohen v. de la Cruz, 528 U.S. 213, 220, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998) (interpreting “debt for” in the context of 11 U.S.C. § 523(a) to mean “ ‘debt as a result of,’ ‘debt with respect to,’ ‘debt by reason of and the like”). Bird’s attempt to “bifurcate” that fee into the portion he feels he earned and the portion the NWFX court found he fraudulently paid himself (or his law firm) is simply not supported by the NWFX decision and the Cohen opinion.

In making this argument, Bird also overlooks entirely the fact the NWFX court found Bird breached his fiduciary duty to the bankruptcy estate in many other ways. Id. at 254-55, 257-58. The bankruptcy court noted “neither the memorandum opinion nor the supplemental order [in NWFX] uses the term ‘defalcation.’ ” However, it concluded “the activities for which Bird was ordered to reimburse the estate[ ] fit into the various definitions cited by [Bullock v. BankChampaign, N.A., — U.S. -, 133 S.Ct. 1754, 185 L.Ed.2d 922 (2013) ] for defalcation.” Bird does not challenge this conclusion on appeal.

With respect to the second issue, Bird argues “it is unclear whether Shaffer complied with Arkansas law for reviving the Judgment, i.e., obtaining a writ of scire facias or otherwise executing on the Judgment.” This argument fails for several reasons.

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533 B.R. 905 (Eighth Circuit, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
513 B.R. 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaffer-v-bird-in-re-bird-bap8-2014.