MEMORANDUM OPINION AND ORDER
Aрpellant Amdura National Distribution Company (Andco), a subsidiary of Amdura Corporation, Inc. (Amdura), seeks reversal of the Bankruptcy Court’s September 13, 1993 order granting appellee Amdura’s motion for summary judgment and denying Andco’s cross-motion. At issue is whether the bankruptcy court committed any reversible error in denying Andco’s request for turnover of funds pursuant to 11 U.S.C. § 542 in a bank account known as the “concentration account”. The bankruptcy court held that Andco, based upon the undisputed facts in the case, could not meet its burden of showing that it owned or was entitled to the concentration funds. The issues are adequately briefed and oral argument will not materially aid their resolution. For all the reasons set forth below, the bankruptcy court’s order will be affirmed.
I.
In the underlying proceeding, Andco requested turnover of the balance in the concentration account in excess of $3.8 million ($1,047,875) plus interest (the disputed funds) as of the release date (November 29, 1991) pursuant to 11 U.S.C. § 542, and an injunction against Amdura’s withdrawal of any of the funds remaining in that account. After a hearing was held, the bankruptcy court denied Andeo’s preliminary injunctive motion. Subsequently, Amdura moved for summary judgment on the ground that the undisрuted facts establish that Andco’s request for the turnover of funds from Amdura lacks legal or factual support. See Amdura’s Summary Judgment Motion, p. 12. Andco filed a response and cross-motion. After a non-evi-dentiary hearing, Amdura’s summary judgment motion was granted and Andco’s cross-motion was denied.
II.
In reviewing a bankruptсy court’s decision, the district court functions as an appellate court and is authorized to affirm, reverse, modify or remand the bankruptcy court’s ruling. Bankr.R. 8013. A bankruptcy court’s summary judgment determination is examined de novo, viewing the record in the light most favorable to the nonmoving party.
Signet Bank v. Keyes,
Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bankr.R. 7056; Fed.R.Civ.P. 56(c). If a movant establishes entitlement to judgment as a matter of law given uncontroverted, operative facts contained in the documentary evidence, summary judgment will lie.
Mares v. ConAgra Poultry Co., Inc.,
The undisputed facts, viewed in the light most favorable to Andco, are accurately stated in the bankruptcy court’s order.
See
Order, ¶¶ 1-35. I must note, however, that these “undisputed facts” are listed under the heading “Findings of Fact”. Having reviewed the parties’ appellate briefs and their summary judgment motions de novo, these material facts are undisputed notwithstand
III.
To be entitled to the turnover of the funds in the concentration account pursuant to § 542, Andco has the burden of proving, with clear and convincing evidence, that those funds are the property of Andco’s bankruptcy estate. 11 U.S.C. § 542;
Evans v. Robbins,
Deposits in a bank to the credit of a debtor become property of the estate under section 541(a)(1). 4 Collier on Bankruptcy, ¶ 541.11 at 541-74 (15th ed. 1992). Funds deposited into a bank account are presumed to belong to the entity in whose name the account is established.
Multi-Clean Products, Inc. v. Kasper,
IV.
Andco seeks reversal of the trial court’s order on the grounds that the court erred by failing to hold that a genuine dispute exists as to material faсts or, in the alternative, that a constructive trust should be imposed for Andco’s benefit. As for the factual question, Andco contends that the trial court erred by failing to determine the exact amount in the concentration account on the petition date. This argument is without merit because And-eo’s own summary judgment motion evidence, corroborated by Amdura’s evidence, establishes the balance in the concentration account as of the petition date at $3,625,000. See Andco’s cross-motion, p. 5 and Ledger Balance attached as exhibit C.
Furthermore, at issue here is not the amount of money in the account, but ownership to it. Once the trial court determined that Andco is unable to prove that it is entitled to turnover of funds pursuant to § 542, the court was correct in concluding its analysis. At that juncture, the amount of money in the concentration account on the petitiоn date was an immaterial fact and, hence, even if disputed, fails to preclude summary judgment in Amdura’s favor. Fed. R.Civ.P. 56(c).
Next, Andco contends that the trial court erred in rejecting its arguments that it is entitled to the disputed funds under a con-
First, I address Andco’s argument that Amdura was acting as its agent in controlling and maintaining the concentration account. Section 541 of the bankruptcy code provides, among other things, that “property оf the estate” does not include “any power that the debtor may exercise solely for the benefit of an entity other than the debtor ...”. 11 U.S.C. 541(b)(1). No principal/agency relationship exists where, as here, the purported agent is
not
subject to the alleged principal’s control.
See Montana v. Land Title Guarantee Co.,
Amdura was Andco’s sole owner. It controlled Andeo’s business affairs along with its other subsidiaries. Amdura always maintained exclusive control over the concentration account funds. It held the account in its own name, and kept the income earned on the account in its own name.
No attributes of control ran upstream from Andeo to Amdura. Amdura, the purрorted agent, was
not
subject to Andco’s control.
See Montana,
Next, Andeo argues that under the “trust fund doctrine” it is entitled to the disputed funds. The Tenth Circuit adopted the trust fund dоctrine in
U.S. v. Van Diviner,
Under the trust fund doctrine, the assets of an insolvent or dissolved corporation constitute a trust fund for the benefit of creditors, and an equitable action may be brought against a stockholder or distribu-tee when the assets of the dissolved or insolvent corporation are distributed without affоrding an opportunity for creditors to present and enforce claims.
Id.
at 965. The trust fund doctrine was developed to protect creditors who are otherwise without a remedy.
Bowers-Siemon Chemicals Co. v. Bowers (In re Bowers-Siemon Chemicals Co.),
Andco’s third theory for imposing a constructive trust is that Amdura, as Andco’s parent, abused its cоnfidential relationship with Andeo. A constructive trust is an equitable remedy devised to prevent unjust enrichment and compel restitution of property that in equity and good conscience does not belong to the defendant.
In re Western Urethanes, Inc.,
In general, “a constructive trust is imposed because the person holding the title to property would profit by a wrong or would be unjustly enriched if he were permitted to keep the property”.
Mancuso v. United Bank of Pueblo,
The burden of proving the existence of the confidential relationship is upon the party claiming the existence of such a relationship.
Page v. Clark,
Andeo’s contention that something more than a creditor-debtor relationship existed between it and Amdura and it was justified in believing that Amdura would act in its best interest is premised on the following reasoning. Amdura was Andco’s sole parent. Wayne Waldera, Amdura’s president and chief executive officer, was Andco’s sole director. Andco depended on Amdura to provide various services, including executive management, personnel, accounting, tax, payroll, legal, risk management, and treasury functions. Amdura was privy to all of And-co’s financial information and participated in virtually every important aspect of Andco’s business. Amdura’s objective must have been to maximize Andcо’s profitability since Andco was one of its subsidiaries.
Since this case comes before me on summary judgment, I resolve all doubts as to whether an issue of fact exists against the moving party. Although the trier of fact may find this evidence ultimately unpersuasive as to whether a confidential relationship existed, a reasonable inference may be drawn to that effect. Therefore, I disagree with the bankruptcy court’s conclusion that no confidential relationship existed between the parties as a matter of law. However, my analysis does not end here.
Assuming arguendo a confidential relationship between the parties, Amdura must have abused that confidential relationship or be enriched unjustly to warrant the imposition of a constructive trust.
Mancuso,
Amdura contends that Andco lacks standing to request the disputed funds under the trust fund doctrine because Andco is not a creditor or shareholder of Amdura. In addition, Amdura argues that Andco cannot now invoke the trust fund doctrine in substitution of its abandoned creditor claims. According tо Amdura, Andco filed an unsecured claim against Amdura as part of the Amdura bankruptcy proceedings which it ultimately released pursuant to a settlement agreement. Andco disputes these contentions. Generally, a federal appellate court does not consider an issue nоt passed upon below.
Singleton v. Wulff,
Accordingly, IT IS ORDERED THAT the decision of the bankruptcy court in granting Amdura’s summary judgment motion and denying Andco’s cross-motion is AFFIRMED.