Vanguard Prods. Corp. v. Citrin

499 B.R. 395, 2013 WL 5435536, 2013 U.S. Dist. LEXIS 140402
District Court, D. Connecticut·Decided September 30, 2013·No. Civil Action No. 3:12cv00725 (SRU)·Published·Cited by 5 cases

Opinion

MEMORANDUM OF DECISION

STEFAN R. UNDERHILL, District Judge.

Appellant Vanguard Products Corporation (“Vanguard”) appeals from the order of the United States Bankruptcy Court for the District of Connecticut, dated March 30, 2012, granting Joseph Tesoriere’s (“Te-soriere”) letter motion to dismiss an adversary proceeding against him and dismissing sua sponte Vanguard’s adversary proceeding against the other defendants. (Bankr.No. 11-05133(AHS), doc. # 116). For the reasons that follow, the order is AFFIRMED.

[398] I. Background1

This appeal from the bankruptcy court is brought by the former landlord of the debtor. The landlord, Vanguard, brought claims in an adversary proceeding against the debtor, Indicon, after it discovered the debtor’s Chapter 11 bankruptcy case. Vanguard’s complaint alleged a series of violations of the Bankruptcy Code and breach of a commercial lease committed by the debtor, its president, and other employees and agents. The bankruptcy court dismissed Vanguard’s complaint for lack of subject matter jurisdiction.

A. The Indicon Bankruptcy

On November 30, 2004, Indicon commenced its chapter 11 bankruptcy case. During the reorganization proceeding, but prior to confirmation of the bankruptcy plan (the “Plan”) (Bankr.No. 04-51376 (AHWS), doc. # 233), Indicon, through its president, Kim Citrin, entered into a letter of intent with Dymax Corporation (“Dy-max”), dated March 18, 2008, which provided for the prospective sale of Indicon’s assets. Tesoriere, a financial advisor, alone or with his company, Omni Solo, Inc. (“Omni Solo”), assisted in the negotiation of the letter of intent.2 Around February 2007, Tesoriere became Indicon’s chief restructuring officer. Tesoriere and Omni Solo also helped Indicon negotiate an asset purchase agreement with Dymax, dated July 17, 2008. The asset purchase agreement was timed to occur two days after the bankruptcy court approved Indicon’s disclosure statement. Neither the bankruptcy disclosure statement nor the Plan mentioned any prospective sale of Indi-con’s assets to Dymax or Tridak LLC (“Tridak”).3 In anticipation of the sale, and while she was acting as Indicon’s president, Citrin received an agreement from Dymax promising her compensation of $400,000 over four years. This employment agreement, although dated June 1, 2008, also was not mentioned in Indicon’s disclosure statement.

Three days after the hearing on the disclosure statement, a letter dated July 18, 2008 and signed by Citrin was sent to Indicon’s employees on Dymax letterhead advising them that Indicon was “nearing the final steps in the Dymax acquisition of Tridak” and now was integrating Tridak’s operations with Dymax’s.

While the sale was proceeding, Indicon continued to seek confirmation of the Plan, which provided for Indicon to continue operating as a going-concern while providing creditors a dividend of 20% of their claims. Indicon represented in its disclosure statement that the source of payment to creditors was “shareholder loans and third-party loans in the amount of $41,000.”

On August 21, 2008, the bankruptcy court confirmed the Plan and the asset sale was consummated three weeks later. From the sale proceeds, Omni Solo was paid $82,800 and Stephen Curley (“Cur-ley”) was paid to represent Indicon in a state court dispute with a secured creditor. The debtor continued to hide the sale of its assets by representing in its September 2008 monthly operating report that there [399] were “no assets sold or transferred outside the normal course of business in this reporting period.”

B. Vanguard Adversary Proceedings

At the time Indicon filed for bankruptcy, Vanguard was the debtor’s landlord on a five-year commercial lease. During the bankruptcy case, the debtor entered into a lease extension agreement with Vanguard for an additional five years, to October 31, 2011. Although Indicon disclosed the lease in bankruptcy, it was not assumed or rejected. Vanguard had no notice of any of the proceedings in the bankruptcy case, including a hearing on Indicon’s disclosure statement or confirmation of the Plan.4

Vanguard brought prejudgment proceedings in state court for breach of the extended lease on November 21, 2008, three months after confirmation of Indi-con’s bankruptcy plan. In response, Indi-con filed a notice to stay that action. While the stay was pending, Indicon also filed several applications for entry of a final decree with the bankruptcy court. The applications did not disclose the state court action. A final decree was entered on February 10, 2009. The state court dismissed the action before it on procedural grounds.5

On February 24, 2010, the bankruptcy court granted Vanguard’s motion to reopen the bankruptcy case. Vanguard filed an amended complaint seeking: (1) damages for breach of the lease agreement; (2) a determination that the damage claim was not discharged by confirmation of the Plan; (3) allowance of the damage claim as an administrative expense; (4) redress for the fraudulent disclosure of Indicon’s asset sale; (5) recovery from Tesoriere and Omni Solo for receiving a fraudulent transfer and for receiving substantial compensation without obtaining an order from the bankruptcy court authorizing their employment; (6) recovery from fees paid to Curley during the bankruptcy case without bankruptcy court approval; and (7) recovery from Tridak and Dymax relating to fraudulent transfers and successor liability.

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Vanguard Prods. Corp. v. Citrin, 499 B.R. 395, 2013 WL 5435536, 2013 U.S. Dist. LEXIS 140402 (D. Conn. 2013).

499 B.R. 395 (Vanguard Prods. Corp. v. Citrin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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