U.S. Bank National Ass'n v. Verizon Communications Inc.

479 B.R. 405, 2012 U.S. Dist. LEXIS 110508, 2012 WL 3193916
CourtDistrict Court, N.D. Texas
DecidedAugust 6, 2012
DocketCivil Action No. 3:10-CV-1842-G
StatusPublished
Cited by7 cases

This text of 479 B.R. 405 (U.S. Bank National Ass'n v. Verizon Communications Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.S. Bank National Ass'n v. Verizon Communications Inc., 479 B.R. 405, 2012 U.S. Dist. LEXIS 110508, 2012 WL 3193916 (N.D. Tex. 2012).

Opinion

MEMORANDUM OPINION AND ORDER

A. JOE FISH, Senior District Judge.

Before the court is the motion for partial summary judgment (docket entry 282) filed by the defendants Verizon Communications Inc. (“Verizon”) and Verizon Financial Services, LLC (‘VFS”). For the reasons set forth below, this motion is denied.1

I. BACKGROUND

This case deals with claims arising out of a large spin-off transaction. The plaintiff is U.S. Bank National Association (“U.S. Bank”), acting as litigation trustee of the Ideare Inc. et al. Litigation Trust. Plaintiffs Amended Complaint and Jury Demand (Filed Under Seal) (“Complaint”) at 1 (docket entry 216). The defendants are Verizon, GTE Corporation (“GTE”), John W. Diercksen (“Diercksen”), and VFS. Id. This motion for partial summary judgment has been brought by Verizon and VFS. Defendants Verizon Communications Inc.’s and Verizon Financial Services LLC’s Partial Motion for Summary Judgment (“Motion”) at 1 (docket entry 282).

The court has already set forth the general factual background of this case. Memorandum Opinion and Order of September 19, 2011 (“September 19, 2011 Memorandum”) at 1-5 (docket entry 106); see also Memorandum Opinion and Order of July 31, 2012 (“July 31, 2012 Memorandum”) at 1-5 (docket entry 469). The plaintiff filed its original complaint on September 15, 2010. Plaintiffs Original Complaint (docket entry 1). On February 17, 2012, the plaintiff filed its amended complaint. Complaint at 1. This amended complaint asserts eleven causes of action. Id. 111132-133. This motion for partial summary judgment deals with four of these causes of action. Motion at 1. Counts 1, 2, and 5 are to recover against Verizon and VFS for transfers alleged to be fraudulent under Texas Business and Commerce Code §§ 24.005, 24.006, and 24.008, and 11 U.S.C. §§ 544(b) and 550. Complaint 111132-43 & 49-58.2 Count 7 is [409]*409to recover against Verizon for transfers alleged to be fraudulent under 11 U.S.C. §§ 548 and 550. Id. 111169-75.

Verizon and VFS move for partial summary judgment on these claims. Summary judgment is proper when the pleadings, depositions, admissions, disclosure materials on file, and affidavits, if any, “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FedeRal Rule of Civil Procedure 56(a), (c)(1). A fact is material if the governing substantive law identifies it as having the potential to affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue as to a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir.2001) (“An issue is ‘genuine’ if it is real and substantial, as opposed to merely formal, pretended, or a sham.”). To demonstrate a genuine issue of material fact, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Company v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party must show that the evidence is sufficient to support the resolution of the material factual issues in his favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505 (citing First National Bank of Arizona v. Cities Service Company, 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

When evaluating a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S. H. Kress & Company, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). However, it is not incumbent upon the court to comb the record in search of evidence that creates a genuine issue as to a material fact. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.2003). The nonmoving party has a duty to designate the evidence in the record that establishes the existence of genuine issues as to the material facts. Celotex Corporation v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “When evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court.” Malacara, 353 F.3d at 405.

II. ANALYSIS

A. The Plaintiffs Fraudulent Transfer Claims under Section 511(b) (Counts 1, 2 and 5)

In Counts 1, 2, and 5 of the complaint, the plaintiff brought fraudulent transfer claims against Verizon and VFS under 11 U.S.C. § 544(b). These litigation rights were given to the plaintiff by the Ideare bankruptcy estate in Idearc’s bankruptcy plan of reorganization. See Complaint ¶ 30 (alleging that the plaintiff is “designated as the Debtors’ and the Estates’ representative and the successor in interest to the Debtors and the Estates for all purposes with respect to all Litigation Trust Rights, including, without limitation, the commencement, prosecution, settlement and collection thereof’); see also 11 U.S.C. § 1123(b)(3)(B) (stating that a bankruptcy plan “may ... provide for ... the retention and enforcement by the debt- or, by the trustee, or by a representative of the estate appointed for such purpose, of any such claim or interest”) (internal punctuation and subdivisions omitted).

[410]*4101. Legal Standard

A bankruptcy trustee “may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable[.]” 11 U.S.C. § 544(b)(1) (emphasis added). This means that a bankruptcy trustee’s rights to avoid a fraudulent transfer “are derivative of an actual unsecured creditor’s rights.” Smith v. American Founders Financial Corporation, 365 B.R. 647, 659 (S.D.Tex.2007).

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479 B.R. 405, 2012 U.S. Dist. LEXIS 110508, 2012 WL 3193916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-bank-national-assn-v-verizon-communications-inc-txnd-2012.