In re Michael BOGDAN, a/k/a Andrew Michael Bogdan; Inner City Management, LLC, Debtors.
Sean C. Logan, Chapter 7 Trustee, Trustee-Appellant,
v.
JKV Real Estate Services; Fidelity National Title Insurance; Stewart Title Guaranty Company; John K. Voyatzis, Defendants-Appellees.
No. 04-1643.
United States Court of Appeals, Fourth Circuit.
Argued December 2, 2004.
Decided July 6, 2005.
COPYRIGHT MATERIAL OMITTED ARGUED: Douglas Brooks Riley, Rosenberg, Martin, Funk & Greenberg, L.L.P., Baltimore, Maryland, for Appellant. Robert L. Ferguson, Jr., Ferguson, Schetelich & Ballew, P.A., Baltimore, Maryland; Richard L. Costella, Miles & Stockbridge, P.C., Baltimore, Maryland, for Appellees.
ON BRIEF: Lawrence J. Yumkas, Sedica Sawez, Rosenberg, Martin, Funk & Greenberg, L.L.P., Baltimore, Maryland, for Appellant. Ann Doherty Ware, Ferguson, Schetelich & Ballew, P.A., Baltimore, Maryland, for Appellees JKV Real Estate Services, Inc., and John K. Voyatzis; Robert Scott Brennen, Matthew G. Summers, John Robert Fischel, Miles & Stockbridge, P.C., Baltimore, Maryland, for Appellee Stewart Title Guaranty Company; Brian Charles Parker, Parker, Dumler & Keily, L.L.P., Baltimore, Maryland, for Appellee Fidelity National Title Insurance Company.
Before KING and SHEDD, Circuit Judges, and HENRY F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation.
Reversed and remanded by published opinion. Judge SHEDD wrote the opinion, in which Judge FLOYD joined. Judge KING wrote an opinion concurring in part and dissenting in part.
OPINION
SHEDD, Circuit Judge.
This bankruptcy appeal requires us to determine whether the bankruptcy trustee has standing to sue, as the assignee of certain creditors, to recover on behalf of the bankruptcy estate for damages caused to these creditors by the debtor's alleged coconspirators. The bankruptcy court dismissed the trustee's amended complaint, concluding that the trustee lacked standing to assert claims against the alleged coconspirators. The district court affirmed the bankruptcy court's judgment. Based on the unique facts and circumstances of this case, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.
I.
In 2000, Michael Bogdan and his corporation, Inner City Management, LLC (referred to collectively as "Bogdan") filed petitions for bankruptcy relief. The bankruptcy court appointed Sean C. Logan (the "trustee") as trustee of the Bogdan estate.
In 2001, Bogdan pleaded guilty to a federal criminal information alleging a single count of conspiracy to commit mail and wire fraud and to make false statements relating to his participation in the real estate scheme that is the subject of this adversary proceeding. In 2002, after conducting an extensive review of Bogdan's business activities, the trustee determined that nearly fifty other persons and entities — real estate appraisers, settlement agents, mortgage brokers, and title insurance companies — also participated with Bogdan in the real estate "flipping scheme" that defrauded numerous mortgage lenders by obtaining under-collateralized mortgage loans to purchase properties in Baltimore City. Twelve of these mortgage lenders that were injured by this scheme unconditionally assigned to the trustee all of their claims against Bogdan and his alleged coconspirators.
The trustee then filed this adversary proceeding in the bankruptcy court as the assignee of these mortgage lenders, alleging claims for civil conspiracy, intentional misrepresentation, fraudulent concealment, negligence, and breach of contract against four of Bogdan's alleged coconspirators. According to the trustee, if he prevails on his claims against the alleged coconspirators, the mortgage lenders will not recover any money from the adversary proceeding. Instead, the mortgage lenders will recover, if at all, only as creditors of the estate on a pro rata basis with all other creditors.1 The trustee's amended complaint seeks nearly $1 million in actual damages and $500,000 in punitive damages relating to 39 mortgage loans.
II.
The bankruptcy court dismissed the trustee's amended complaint, concluding that the trustee lacked standing to sue Bogdan's coconspirators for two reasons. First, the court ruled that the mortgage lenders' causes of action belong exclusively to them and not Bogdan's trustee because the action is premised on injury to the creditors, not Bogdan. The assignments by the mortgage lenders to the trustee do not, the court decided, give the trustee standing to pursue claims against the alleged coconspirators. Second, the court ruled that the trustee lacked standing based on the doctrine of in pari delicto, which bars a wrongdoer — such as Bogdan — from recovering against his coconspirators for injuries they jointly caused.
The district court affirmed based largely on the same reasoning as the bankruptcy court. In particular, the district court determined that the mortgage lenders, not the trustee, were the real parties in interest and that the trustee does not have standing to assert causes of action on behalf of creditors notwithstanding the assignments. The trustee now appeals.
III.
We review the judgment of a district court sitting in review of a bankruptcy court de novo, applying the same standards of review that were applied in the district court. In re Merry-Go-Round Enters.,
IV.
A.
In affirming the dismissal of the amended complaint, the district court ruled that the trustee does not have standing to assert claims that belonged to the mortgage lenders, even though the mortgage lenders formally assigned their claims to the trustee. This ruling effectively establishes a per se ban on claims by trustees as assignees of creditors. The district court relied on the Supreme Court's opinion in Caplin v. Marine Midland Grace Trust Co.,
More than a decade before commencement of its bankruptcy proceedings, the debtor in Caplin issued debentures through Marine Midland Trust Company ("Marine"). One of the debtor's critical obligations under its agreement with Marine was that it maintain an asset-liability ratio of 2 to 1. This obligation was intended to protect the debenture holders from loss on their investments. The debtor was also required to file annual reports with Marine verifying its compliance with its obligations. Marine promised to exercise due care and skill in monitoring the debtor's compliance. Id. at 417-18,
For several years after issuing the debentures, the debtor incurred such substantial financial losses that by the time it entered bankruptcy, the debtor had roughly three times more liabilities than assets, a clear violation of its debenture obligation. Id. at 418-19,
The Supreme Court affirmed for three reasons. First, the Court concluded that there was no provision in the bankruptcy laws allowing a trustee to assume the responsibility of suing on behalf of creditors of the estate. The Court held that a trustee is not authorized to "collect money not owed to the estate." Caplin,
The facts of this case and Caplin are substantially different. It does not follow from the reasons advanced by the Court in Caplin that the trustee lacks the necessary standing in this case to assert his claims against Bogdan's alleged coconspirators on behalf of Bogdan's estate. First, while the trustee in Caplin attempted to assert claims directly on behalf of the debtor's creditors, Bogdan's trustee is not making any claim on behalf of the creditors. By taking unconditional assignments from the creditors, the trustee, as assignee, is making his claim on behalf of Bogdan's estate, not on behalf of the mortgage lenders. The mortgage lenders will recover nothing directly from any recovery attained from the trustee's adversary proceeding against Bogdan's alleged coconspirators. The mortgage lenders will recover, if at all, like any other creditor of the estate, by sharing from the assets the trustee is able to collect on behalf of the estate.
Second, unlike the debenture holders in Caplin, the mortgage lenders in this case have affirmatively elected how best to deal with their claims against Bogdan's alleged coconspirators. By unconditionally assigning their claims to the trustee, the mortgage lenders have decided to abandon their claims against the alleged coconspirators to allow the trustee to seek recovery against them on behalf of the estate. Thus, the mortgage lenders have chosen to attempt to recover, if at all, as creditors of the estate along with all the other estate creditors.
Third, unlike in Caplin, there is no potential for duplicative and inconsistent litigation by the mortgage lenders who have assigned their claims to Bogdan's trustee. By giving the trustee unconditional assignments of their potential claims, the mortgage lenders have relinquished all rights to seek recovery against Bogdan and the alleged coconspirators. Thus, the district court's per se ban on trustee suits based on assignments from creditors finds no support in Caplin.
Contrary to the district court's per se prohibition, the Bankruptcy Code implicitly authorizes such a suit under the particular facts and circumstances of this case. Under the Code, a bankruptcy trustee represents the estate and "has capacity to sue and be sued." 11 U.S.C. § 323(b). The trustee is specifically authorized to "collect and reduce to money the property of the estate for which such trustee serves, and close such estate as expeditiously as is compatible with the best interests of parties in interest." Id. § 704(1) (emphasis added). The meaning of "property of the estate" under the Code has been construed "broadly to encompass all kinds of property, including intangibles." Integrated Solutions, Inc. v. Service Support Specialties, Inc.,
The alleged coconspirators nevertheless argue that the unconditional assignments do not confer standing on Bogdan's trustee, citing the Ninth Circuit's opinion in Williams v. California 1st Bank (In re Estate of Chacklan Enters., Inc.),
The debtor in Williams allegedly participated with the defendant bank in a "Ponzi" scheme defrauding investors. The bankruptcy trustee solicited and obtained assignments from some of the injured investors and brought an action against the bank. Rather than unconditional assignments, these injured investors gave up their claims in exchange for the trustee's promise to recommend to the bankruptcy court that these particular investors only receive the balance of any recovery the trustee might secure in the lawsuit against the bank after the estate paid priority claims and recouped its administrative costs. Id. at 665.
The Ninth Circuit decided that the trustee lacked standing notwithstanding the assignments. The court concluded that the investors remained the "real parties in interest" because "the bulk of any recovery" had been reserved specifically for them. Id. at 666. The court reasoned that the investors, in effect, "assigned their claims only for purposes of bringing suit" and, as a result, the trustee was improperly attempting to collect money owed to the investors, not the estate. Id. at 667.
The unconditional assignments acquired by Bogdan's trustee differ substantially from the assignments the trustee acquired in Williams. As asserted by Bogdan's trustee, the assignments he obtained do not reserve any part of the potential recovery exclusively for the mortgage lenders that assigned their claims. Unlike the investors in Williams, the mortgage lenders in this case will recover, if at all, by sharing from the general assets of the estate on a pro rata basis with all other creditors. So, unlike the trustee in Williams, Bogdan's trustee is seeking to collect money it claims the alleged coconspirators owe the trustee as assignee and representative of the estate, not money owed to specific creditors. Accordingly, Bogdan's estate is the real party in interest in this adversary proceeding.
The alleged coconspirators also complain that allowing bankruptcy trustees to sue based on assignments would dramatically and improperly expand the jurisdiction of the bankruptcy courts. They warn that such a rule would prompt trustees to seek out and purchase unrelated causes of action and pursue them in adversary proceedings in hope of increasing the assets of the estate.
This concern is unwarranted specifically in this case and generally in the broader bankruptcy practice context. As for this case specifically, the alleged coconspirators concede that no estate assets were paid to acquire the assignments from the mortgage lenders. Moreover, the trustee and the alleged coconspirators agree that this adversary proceeding is directly related to the bankruptcy case. The collapse of the "flipping scheme" caused, at least in part, Bogdan's bankruptcy.
More generally, our holding in this case is unlikely to lead trustees to hunt down and purchase assignments of causes of action unrelated to the bankruptcy case. The Bankruptcy Code gives bankruptcy courts broad discretion to monitor all aspects of bankruptcy cases and to prevent abuses of process. See, e.g., 11 U.S.C. § 105(a) (providing that bankruptcy courts may, sua sponte, take action to prevent an abuse of process); id. § 330 (granting bankruptcy courts authority to approve or reject, based on a wide-range of factors, compensation applications by trustees for expenses incurred and services rendered). Moreover, our cases establish that trustees must always act in the best interest of the estate. See, e.g., Yadkin Valley Bank & Trust Co. v. McGee (In re Hutchinson),
B.
The district court also ruled that the trustee lacks standing based on the doctrine of in pari delicto. We disagree.
The common-law doctrine of in pari delicto (meaning "of equal fault") is often described as an affirmative defense that bars a wrongdoer from recovering against his alleged coconspirators. See Perma Life Mufflers, Inc. v. International Parts Corp.,
The alleged coconspirators complain that allowing the trustee to recover on behalf of the estate in this proceeding could ultimately result in Bogdan personally recovering from his alleged coconspirators — the precise inequity the doctrine of in pari delicto is designed to avoid. This could happen, the alleged coconspirators assert, if the trustee recovers more money than necessary to satisfy all the creditors' claims. They claim that, if that occurs, the bankruptcy court would be required to distribute the surplus property of the estate to Bogdan personally. See 11 U.S.C. § 726(a)(6).
First, from a practical standpoint, it appears that the potential for Bogdan to make any personal recovery does not realistically exist. The trustee seeks to recover a total of $1.5 million in this adversary proceeding, all of which will become property of the estate available to pay claims against the estate. The trustee represents that the mortgage lenders have filed claims against the estate seeking most of this amount. Moreover, the trustee represents that at least $1.5 million in additional claims unrelated to the "flipping scheme" have also been filed by other creditors against the estate. Thus, any monies recovered in this proceeding would not likely satisfy all the claims against Bogdan's estate, and there would be no surplus assets to distribute to Bogdan.
Second, in the unlikely event that any property of the estate will remain after all claims and legal and administrative fees of the estate have been satisfied, the alleged coconspirators could pursue other remedies to keep Bogdan from personally recovering as a result of his criminal conduct. For instance, the alleged coconspirators can attempt to raise the doctrine of in pari delicto against Bogdan personally at that stage of the bankruptcy case. Or, as some other courts have suggested, the alleged coconspirators could seek to assert subrogation claims against Bogdan. Caplin,
V.
For the foregoing reasons, the judgment of the district court is reversed, and we remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Notes:
Notes
Although he did not attach copies of the assignments to his amended complaint, the trustee provided copies of some of the assignments to the alleged coconspirators during the bankruptcy court proceedings and represented to that court that the assignments are unconditional, meaning that the estate is the only entity that could possibly make any recovery in this adversary proceeding. Neither the bankruptcy court nor the district court found it necessary to construe the provisions of the assignments, instead concluding that the trustee lacked standing to sue regardless of what the assignments provided. Copies of the assignments are not included in our appellate record. Nevertheless, the trustee repeats his representation that the assignments give him an unconditional right to recover all monies on behalf of the estate, and the mortgage lenders may recover, if at all, only as creditors of the estate. The alleged coconspirators do not attack this representation, and we assume it to be true for purposes of this appeal
We do not decide that the alleged coconspirators could successfully assert these defenses. Instead, we state only that they can attempt to assert them
The dissent suggests that the bankruptcy and district courts merely exercised their discretion in invoking the equitable defense ofin pari delicto and that we should not disturb these rulings. We cannot, however, affirm a lower court's ruling if it is based on erroneous legal principles. See Koon v. United States,
KING, Circuit Judge, concurring in part and dissenting in part.
Although I am constrained to partially concur in the panel majority's decision, I write separately for two reasons. First, the majority's position on standing depends entirely on the legality of the assignments under Maryland law, and because the assignments were not presented to the lower courts, their validity remains subject to question. My partial concurrence is thus subject to this caveat, in that the assignments may well be invalid. Second, I disagree with the view of my friends in the majority that the trustee is not subject to the defense of in pari delicto.
I.
I first briefly address the issue of standing and the problem of the assignments. In Caplin v. Marine Midland Grace Trust Co.,
By § 704(1) of the Bankruptcy Code, a Chapter 7 trustee is authorized to "collect and reduce to money the property of the estate." 11 U.S.C. § 704(1). Because claims of the debtor constitute property of a bankruptcy estate under § 541(a)(1) of the Code, § 704(1) grants the debtor's trustee the right to assert causes of action on behalf of the debtor. 11 U.S.C. §§ 541(a)(1), 704(1); see Polis v. Getaways, Inc., (In re Polis),
Under Maryland law (which applies in this dispute), a cause of action arising in either contract or tort is generally considered to be an assignable claim. See Med. Mut. Liab. Ins. Soc'y of Md. v. Evans,
This analysis, however, is predicated entirely on the assumed validity of the assignments, a proposition we accept in viewing the complaint in the light most favorable to the trustee. See Fed.R.Civ.P. 12(b)(6); Lambeth v. Bd. of Comm'rs of Davidson County, N.C.,
The pursuit of this proceeding thus appears to impose on the Bogdan trustee an untenable conflict of interest, in contravention of Maryland's public policy. On the one hand, the trustee, as assignee, is suing the defendants for their tortious activities and, on the other, he must defend the debtor, admittedly a joint tortfeasor in those same illegal activities. See Md. R. Prof. Conduct 1.7, Conflict of Interest (barring attorney from representing clients if that representation will be materially limited by lawyer's responsibilities to another client or to third person).1 Because — and only because — the bankruptcy and district courts have not had occasion to address the potential invalidity of the assignments, I concur in the standing aspect of the panel decision. As I see it, however, the assignments are probably invalid under Maryland law.
II.
Turning to the issue of the in pari delicto defense, I disagree with the panel majority that the Bogdan trustee, as assignee of the claims, is only subject to defenses which the defendants could have raised against the mortgage lenders. The decisions upon which the majority relies on this issue, James v. Goldberg,
Furthermore, the defense of in pari delicto is an equitable doctrine, and under Maryland's formulation of that defense, the courts are to be concerned with "`the policy of the law.'" Schneider v. Schneider,
Pursuant to the foregoing, I concur in part and dissent in part.
Notes:
In addition to the conflict of interest problems facing the Bogdan trustee, other public policy concerns are apparent. For example, some state courts have held that it is against public policy to permit a joint tort-feasor to purchase a cause of action from a plaintiff to whose injury the tortfeasor contributedSee, e.g., Int'l Proteins Corp. v. Ralston-Purina Co.,
One final point: as I see it, the lower courts incorrectly conflated the applicability of thein pari delicto defense with the issue of standing. The standing question is properly a separate issue from whether the defense of in pari delicto applies. See Official Comm. of Unsecured Creditors v. R.F. Lafferty & Co.,