Sikirica v. Cohen (In re Cohen)

509 B.R. 1, 2014 WL 1364969, 2014 Bankr. LEXIS 1437
CourtUnited States Bankruptcy Court, W.D. Pennsylvania
DecidedApril 7, 2014
DocketBankruptcy No. 05-38135JAD; Adversary No. 07-2517JAD
StatusPublished
Cited by3 cases

This text of 509 B.R. 1 (Sikirica v. Cohen (In re Cohen)) 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
Sikirica v. Cohen (In re Cohen), 509 B.R. 1, 2014 WL 1364969, 2014 Bankr. LEXIS 1437 (Pa. 2014).

Opinion

MEMORANDUM OPINION

JEFFERY A. DELLER, Chief Judge.

Pursuant to a fraudulent transfer action brought by the Chapter 7 Trustee, this [2]*2Court issued a Memorandum Opinion dated October 31, 2012 finding that assets in the amount of $488,615.79 had been fraudulently transferred by the Defendants under the Pennsylvania Uniform Fraudulent Transfer Act. On appeal, the United States District Court for the Western District of Pennsylvania remanded for further proceedings consistent with its opinion on the specific issue of recovery by the Trustee for the checking account deposits made by the Defendant wife that may have been used for unexplained expenditures. For the reasons expressed below, the Court shall reduce the judgment previously awarded the Trustee by the amount of $73,960.00.

I.

The Debtor, David I. Cohen, was an attorney for the now dissolved law firm of Titus & McConomy. After the firm’s dissolution, a lawsuit was commenced in state court by the landlord of the law firm, TrizecHahn Gateway, LLC against Titus & McConomy and its former partners including the Debtor. Judgment in the amount of approximately $3.3 million dollars was entered in favor of TrizecHahn Gateway, LLC and the Debtor was held jointly and severally liable along with several other Titus & McConomy partners. As a result of the judgment, several of the firm partners filed bankruptcy including the Debtor, David I. Cohen. Those bankruptcy cases and other adversaries similar to the subject action brought by the respective trustees of those cases have been heard and decided by other judges within this district.1

This matter originated out of the Amended Complaint to Avoid Fraudulent Transfers filed by the Chapter 7 Trustee, Jeffrey J. Sikirica, seeking recovery of transfers pursuant to the Pennsylvania Uniform Fraudulent Transfer Act.2 This Court awarded judgment in favor of the Trustee in the amount of $488,615.79. In so holding, it was found that unexplained expenditures from the Defendants’ joint checking account in the amount of $463,575.08 were recoverable by the Trustee. As to that amount, there was no evidence produced by the Defendants regarding what had been purchased with the funds deposited into the checking account.3

[3]*3On appeal, the District Court found that the Trustee met his burden as to some but not all of the deposits being used for unexplained expenditures. See Cohen v. Sikirica (In re Cohen), 487 B.R. 615, 625 (W.D.Pa.2013). It was held that this Court should not have required evidence to be produced that the funds deposited into the joint checking account attributable to Mrs. Cohen were used to fund the unexplained expenditures. The District Court followed the reasoning in Böhm v. Titus (In re Titus), 467 B.R. 592 (Bankr.W.D.Pa.2012), aff'd in part, rev’d in part, remanded in part, 498 B.R. 508 (W.D.Pa.2013). In Titus, it was determined that it was “at least as likely as not” that social security benefits of Mrs. Titus, the nondebtor wife, “funded an equal portion of the Objectionable Expenditures.” 467 B.R. at 624. The Titus court accordingly held that the Trustee had not proven that it was wages of the Debtor that were used to fund the objectionable expenditures. Id.

The District Court in the subject Cohen appeal found that it was “as likely as not that the deposits attributable to Ms. Cohen were used to fund unexplained expenditures.” Cohen, 487 B.R. at 625. Further, the court stated that the amount recoverable should not be reduced by the amount of unexplained deposits that are not the Debtor’s wages as any such reduction would be an incentive for the Debtors to not provide information regarding the source of the deposits. Id. The District Court then stated that “upon remand, the amount of unexplained expenditures that the Trustee can recover should be reduced by the amount of deposits attributable to Ms. Cohen.” Id.

Since the remand, the parties have entered into a stipulation regarding the dollar amount of deposits attributable to Mrs. Cohen during the relevant look back period. The parties stipulate that Mrs. Cohen’s deposits totaled $73,960.00. See Doc. No. 182.

II.

Upon remand for a determination of reduction in the Trustee’s recovery, this Court is now tasked with ascertaining the appropriate method for and amount of that reduction. The Trustee argues that the findings of the District Court regarding the reduction in amount were equivocal and subject to interpretation. The Trustee urges this Court to consider and adopt the reasoning of Judge Thomas Agresti in the case of another former Titus & McConomy partner, David Oberdick.

In Oberdick, the Trustee brought a fraudulent transfer action against the Debtor and his wife. See Shearer v. Oberdick (In re Oberdick), 490 B.R. 687 (Bankr.W.D.Pa.2013). In determining appropriate adjustments to the gross amount of deposits into the Oberdicks joint checking account, the court considered other deposits made into the account by Mrs. Oberdick. The court followed the “dollar for dollar” reduction method established by Judge Markovitz in the Titus case. See 490 B.R. at 710-711. However, in a lengthy footnote, Judge Agresti expressed “some concern” regarding the dollar for dollar approach in Titus. He noted that:

[I]t would seem to put nearly an impossible burden on the Trustee to show that a particular expenditure was ‘funded’ by a specific deposit, given that funds from different sources were commingled in a single account. There is also a fairness issue in the Titus approach in that it was the defendants who created the uncertainty by commingling the funds, yet it is the Trustee who is expected to somehow unravel it. There are other possible ways to handle this ‘other deposit’ issue that would avoid the problems noted above. For instance, the [4]*4burden of proof could be placed on the Defendants to show that funds from the other deposits were used for non-necessary expenditures from the Entireties Account. Or a presumption could be employed whereby a pro rata share of the non-necessary expenditures could be deemed to have come from funds originating from the other deposits.

Id. at 711, n. 15.

Following the pro rata approach suggested in Oberdick, the Trustee contends that there should be a presumption that only a pro rata share of the non-necessary expenditures came from funds deposited into the Cohen joint checking account by Mrs. Cohen. Using such a method, the Trustee calculates the reduction by determining the percentage of deposits by Mrs. Cohen of all the deposits into the joint checking account and reducing the Trustee’s award by no more than that amount.4

The Defendants argue that the judgment should be reduced by the full amount of deposits attributable to Mrs. Cohen and not merely a percentage. It is argued that the District Court relied on the Titus case in its determination that the funds deposited by Mrs. Cohen should be deducted from the amount awarded for unexplained expenditures. The Titus case concluded that the entire amount from the spouse’s funds, dollar for dollar, was deducted from the Trustee’s claim for unexplained expenditures. Moreover, it is argued, the approach in Titus

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Cite This Page — Counsel Stack

Bluebook (online)
509 B.R. 1, 2014 WL 1364969, 2014 Bankr. LEXIS 1437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sikirica-v-cohen-in-re-cohen-pawb-2014.