Shearer v. Titus (In re Titus)

479 B.R. 362, 2012 WL 3860566, 2012 Bankr. LEXIS 4095
CourtUnited States Bankruptcy Court, W.D. Pennsylvania
DecidedSeptember 6, 2012
DocketBankruptcy No. 10-23668-TPA; Adversary No. 10-2338-TPA
StatusPublished
Cited by9 cases

This text of 479 B.R. 362 (Shearer v. Titus (In re Titus)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shearer v. Titus (In re Titus), 479 B.R. 362, 2012 WL 3860566, 2012 Bankr. LEXIS 4095 (Pa. 2012).

Opinion

MEMORANDUM OPINION

THOMAS P. AGRESTI, Chief Judge.

Presently before the Court for decision is the Motion to Alter or Amend Judg[365]*365ment Pursuant to Rule 9023 of the Federal Rules of Bankruptcy Procedure (“Motion”), filed by the Defendants at Doc. No. 63. Fed.R.Bankr.P. 9023 incorporates Fed. R. Civ.P. 59(e), which is the basis for the Motion. The Motion was filed in response to the Memorandum Opinion and Order issued by the Hon. Bernard Marko-vitz on February 29, 2012, after a trial held on May 25, 2011. In re Titus, 467 B.R. 592 (Bankr.W.D.Pa.2012). Judge Marko-vitz retired before deciding the Motion and the case was transferred to the Undersigned. The Court has previously ruled that, despite this somewhat unusual circumstance, it can and will decide the Motion, being careful to do so under the Rule 59(e) standard rather than conducting a de novo or appellate review. See, Order of May 14, 2012, Doc. No. 76. In that same May 14th Order, issued after an oral argument on the Motion, the Court also directed the Parties to brief a number of issues and they have now done so. See Doc. Nos. 82, 83. After a review of the trial record and the materials filed by the Parties, the Court finds that the Motion must be denied.1

FACTUAL BACKGROUND

The Court will not here restate the facts of the case in any great detail. The Parties themselves are of course familiar with the facts, and others who may be interested in the factual details are referred to the comprehensive Memorandum Opinion authored by Judge Markovitz.

The Debtor, an attorney, was a partner in the former Pittsburgh law firm of Titus and McConomy, LLP (“TM”). TM leased office space from TrizecHahn Gateway, LLC (“TrizecHahn”). After TM disintegrated and vacated the leased premises, TrizecHahn sued the firm and a number of its partners, including the Debtor, for breach of the lease agreement. Trize-cHahn obtained a large joint and several judgment (over $3 million) and then began attempting to collect on that judgment. In connection with that effort, it filed fraudulent transfer actions against at least some of the former TM partners, including the Debtor. The basic theory of these various actions is that married partners who went to work elsewhere after the demise of TM, and had their compensation from their new employers direct-deposited into accounts held in tenancies by the entireties with their spouses, had thereby engaged in a fraudulent transfer by placing such funds outside the reach of the TrizecHahn judgment (on which the spouses were not liable).

In the particular case of the Debtor, after leaving TM he became an equity partner in the firm of Schnader Harrison Segal & Lewis, LLP (“Schnader”). Compensation that the Debtor received from his position at Schnader (“Schnader Wages”2) was deposited into an account (“the Account”) he held jointly in a tenancy by the entireties with his wife, defendant Bonnie Titus. TrizecHahn filed a fraudulent transfer action against Mr. and Mrs. Titus in state court and the case was eventually removed to this Court where the Chapter 7 Trustee was substituted as Plaintiff. Judge Markovitz found that the relevant “Look-back Period” for purposes [366]*366of the fraudulent transfer action was the period from April 23, 2003 through April 23, 2007.3 In other words, this is the relevant period of time for examination of deposits into and expenditures out of the Account.

The basic methodology employed by Judge Markovitz in reaching his decision was fairly straightforward. He started out by accepting as a legal principle that a transfer of Schnader Wages into the Account would constitute a fraudulent transfer vis-a vis individual creditors of the Debtor, except to the extent that such funds were then used by the Defendants to purchase “necessaries.”4 Applying that principle, he first determined the total amount of deposits made into the Account during the Look-Back Period, what portion of that total represented deposits of Schnader Wages, and what portion was from other or unknown sources. He then looked at expenditures made from the Account, determining what portion of those were for necessaries, and what portion went to non-necessaries or to purchase jointly-held assets.

Putting some “meat” on the “bones” framework noted above, Judge Markovitz concluded that deposits made by the Debtors into the Account during the Look-Back Period totaled $855,578.45. Of that amount, he found that “at least” $575,228.25 was from Schnader Wages, and another $142,974 from Social Security benefits received by the Defendants. Judge Markovitz did not expressly characterize the source of the remaining $137,376.20 of deposits — the “Unknown Deposits,” of which more, later.

On the expenditure side, Judge Marko-vitz found that $423,908.18 had been spent out of the Account for “non-necessaries” or entireties assets (“Objectionable Expenditures”). He then determined that the Trustee failed in his burden to prove that the deposits into the Account attributable to Social Security Benefits were not used toward the Objectionable Expenditures. He thus concluded that it was at least as likely as not that the Social Security Benefits were used toward the Objectionable Expenses and found that the amount of those Benefits had to be deducted from the total Objectionable Expenditures amount, resulting in his finding of fraudulent transfer liability against the Defendants of $281,066.18.

Defendants’ Motion

The Court begins with the following statement as set forth in Paragraph 13 of the Motion:

In order to prevent a manifest injustice, the Defendants ask the Court to reconsider the $281,066.18 worth of fraudulent transfers. For purposes of this Motion only, and reserving their right to appeal on all other issues, the Defendants accept the Court’s findings of fact and conclusions of law, with the exception of those objections stated in this Motion.

Motion at ¶ 13. When the above standard is applied, a fair reading of the Motion reveals the following contentions by the Defendants as to why they believe the judgment should be amended (references are to Paragraphs in the Motion):

[367]*367• The Court failed to consider evidence showing it was more likely than not that at least an additional $155,347 (¶¶ 15-23) and possibly up to an additional $357,522.10 (¶¶ 24-30) was deposited into the Account from sources other than the Schnader Wages.
• The Trustee did not prove that Objectionable Expenditures were funded from Schnader Wages and not from these other sources, therefore the Defendants’ liability should be reduced by at least $155, 347, and possibly reduced all the way to $0. (¶¶ 22-23, 31-32).

The above thus represents the “universe” of issues or grounds for reconsideration as stated by the Defendants in their Motion.

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Cite This Page — Counsel Stack

Bluebook (online)
479 B.R. 362, 2012 WL 3860566, 2012 Bankr. LEXIS 4095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shearer-v-titus-in-re-titus-pawb-2012.