The following are summaries of the September 2015 opinions posted on the Massachusetts Bankruptcy Court’s website.
50 Patton Drive, LLC et al. v. Steven C. Fustolo (In re Fustolo) A.P. No. 14-1193 (September 11, 2015) (Feeney, J.) The Patriot Group, LLC (“Patriot”) filed a motion for partial summary judgment against defendant/debtor (“Debtor”) pursuant to § 727(a)(4)(A) seeking denial of Debtor’s discharge for knowingly and fraudulently making a false oath in his amended Schedule B. Specifically, Patriot asserted that Debtor improperly listed a “possible whistleblower claim” that did not exist. Debtor opposed the motion. Relying on prior claims filed with the IRS and SEC by Debtor, the Bankruptcy Court ruled that the record contained sufficient evidence that Debtor did in fact have a potential whistleblower claim and therefore denied Patriot’s motion.
Follo et al. v. Morency (In re Morency), Case No. 10-13666-JNF, A.P. No. 10-1133 (Sept. 18, 2015) (Feeney, J.) Prior to the debtor’s Chapter 7, the plaintiffs had obtained a $500,000 Vermont state court judgment against the debtor for common law fraud and violations of the Vermont Consumer Fraud Act in connection with the debtor’s sale of an inn to the plaintiffs. The debtor had been found to have provided the plaintiffs with inflated revenue figures when marketing the inn. In a 2013 decision after a section 523(a)(2) non-dischargeability trial in the Bankruptcy Court in which the plaintiffs relied exclusively on the state court judgment and collateral estoppel/issue preclusion, the Bankruptcy Court found the debt dischargeable. This time around, on remand from the District Court, the Bankruptcy Court confirmed the dischargeability finding by denying the plaintiff’s’ post-trial motion to amend the complaint to add a more specific reference to section 523(a)(2)(B), and denying the plaintiffs’ motion to take judicial notice of state court jury instructions, which did not make it into the original dischargeability trial record and would have better dovetailed with the requisite elements for a finding under 523(a)(2)(B).
In re Morency, Case No. 10-13666-JNF (Sept. 18, 2015) (Feeney, J.) In the debtor’s Chapter 7 bankruptcy, only three creditors filed claims, all nonpriority and unsecured, two for less than $6,000, and one for over $500,000 (the “Judgment Claim”). One creditor objected to the Judgment Claim on the grounds that the Vermont state court judgment on which it was based was not final, had no preclusive effect in the bankruptcy, and was obtained with falsified evidence. The issue for the bankruptcy court was whether the objecting creditor sustained its burden of proof that the Judgment Claim creditor did not have an allowed claim because of the alteration of an exhibit in the state court litigation. Judge Feeney concluded estoppel was inapplicable because the debtor and objecting creditor were not in privity and there was no shared identity between the issues in the state court action and the objection. After an evidentiary hearing, the court found that the objecting creditor failed to establish that the Judgment Claim creditor altered the trial exhibit and overruled the objection.
In re Blanchette, Case No. 1540788-MSH (September 22, 2015) (Hoffman, J.) In this case, the Chapter 7 trustee filed an objection to debtor’s homestead exemption claim, asserting that the debtor did not fall under the statutory definition of “owner” under Mass. Gen. Laws. ch 188, § 1. Additionally, the trustee argued that the debtor’s former spouse’s previously recorded declaration of homestead on the shared property was automatically terminated when the debtor recorded a subsequent homestead declaration on the same property, and also because the former spouse’s declaration was terminated when she moved out of the property after the divorce. Despite the bankruptcy court’s finding that the debtor lacked an ownership interest in the property, it overruled the trustee’s objection and held that a homestead declaration when recorded does not automatically terminate a prior recorded declaration. Furthermore, the bankruptcy court held that the former spouse’s departure from the marital property terminated only her homestead rights, and not those of the debtor.
In re Henry A. Sarafin Testamentary Trust, Case No. 12-30221-HJB (September 30, 2015) (Boroff, J.) The Debtor objected to the secured claim filed by an oversecured creditor (the “Bank”) to the extent the amount of the claim exceeded the amount set forth in the Debtor’s confirmed Chapter 12 Plan (the “Plan”). The Debtor also questioned the reasonableness of attorney’s fees included in the Bank’s claim. The Bank argued that its claim amount was not limited by the provisions of the Plan and that its attorney’s fees were reasonable. The Bankruptcy Court stated that while it is well-settled that a confirmed plan has a preclusive effect with regard to the treatment of a claim (i.e., secured vs. unsecured), the same cannot be said with respect to the amount of a claim. Noting that the total amount of the Bank’s claim in the instant case could not have been determined at the time of confirmation, the Court found that the Plan could not possibly have had a preclusive effect as to the ultimate amount of the Bank’s oversecured claim. The Court further concluded that the attorney’s fees in question were reasonable in light of the nature of the case and the Debtor’s habitual payment arrearages.
In re GT Advanced Technologies, Inc., Ch. 11 Case No. 14-11916-HJB (Bankr. D. N.H.) (Boroff, J.) The Bankruptcy Court, from the bench, had denied a motion to approve the Debtors’ key employee retention plan (“KERP”) and key employee incentive plan (“KEIP”) and the District Court remanded on appeal requesting that the Bankruptcy Court elucidate additional facts and analysis of the motion to approve with reference to case law. Section 503(c)(1) of the Bankruptcy Code prohibits bonuses paid to retain insiders unless the plan meets the strict requirements of the section. If a plan is primarily incentivizing and not retentive in nature (a KEIP instead of a KERP), the more permissive 503(c)(3) applies to the plan. The KEIP in this case covered 9 insiders and provided bonuses in varying amounts based on performance metrics defined as threshold, target, and stretch. The Bankruptcy Court found that the KEIP was not primarily incentivizing because the “target” performance metric aligned with estimates and projections contained in the Debtors’ business plan. Therefore, a threshold level bonus could be achieved by the insiders even if their performance failed to reach the level estimated under the plan. The Court also found that the repeated statements of counsel and the declarants in support of the KEIP regarding the importance of keeping the insiders on board demonstrated that the KEIP was primarily retentive and not incentivizing in nature. Since all parties agreed that the KEIP could not meet the requirements of 503(c)(1), the motion to approve with respect to the KEIP was denied. As to the KERP, the Court applied what have become known as the “Dana factors” and found that it could not approve the KERP. While the Debtors were properly concerned about the retention of their employees and took care to pare down to a group of 26 employees most crucial to their operations, the Court could not conclude that (i) the design of the KERP was reasonably related to the results the Debtor sought to obtain, (ii) the scope of the plan was fair and reasonable and did not discriminate unfairly, or (iii) the plan was consistent with industry standards. The Court could also not conclude that the cost of the KERP was reasonable given the Debtors’ assets, liabilities, and earning potential.
Benjamin Higgins, Law Clerk to the Hon. Frank J. Bailey (Contributions are on personal behalf and should not be construed as statements by the U.S. Bankruptcy Court)
John Joy, Boston College Law School
Devon MacWilliam, Partridge Snow & Hahn
Michael K. O’Neil, Murphy & King
Nathan Soucy, Soucy Law Office
Aaron Todrin, Sassoon & Cymrot, LLP