Friday, November 18, 2022

Florida Supreme Court Confirms Zero-Tolerance For Misleading UCC Filings

By Jeffrey N. Schatzman, Esq.

Schatzman & Schatzman, P.A.

Miami, Florida

 


            On September 29, 2022, the Eleventh Circuit Court of Appeals issued its opinion in 1944 Beach Boulevard, LLC v. Live Oak Banking Co. (In re NRP Lease Holdings, LLC), No. 21-11742, at *9 (11th Cir. Sep. 29, 2022), which reversed the Florida Middle District and Middle District Bankruptcy Courts’ decisions concerning perfection of a UCC-1 financing statement under Florida law.  The case involves 1944 Beach Boulevard, LLC’s, a chapter 11 debtor (“Beach Boulevard”) action to avoid Live Oak Banking Co.’s (“Live Oak”) blanket lien on its assets. 

            Live Oak had made two $2.5 million loans to Beach Boulevard and attempted to perfect its liens on all of Beach Boulevard’s assets by filing a UCC-1 financing statements for each loan with the Florida Secured Transactions Registry.  However, in its filings, Live Oak incorrectly named the debtor as 1944 Beach Blvd, LLC as opposed to its legal name, 1944 Beach Boulevard, LLC.  In its avoidance action, Beach Boulevard asserted that Live Oak’s financing statements failed to correctly name the debtor, making them “seriously misleading” within the meaning of § 679.5061(2), Florida Statutes and thus rendering Live Oak’s security interest unperfected.  The parties filed cross motions for summary judgment.

            Florida Statutes § 679.5061 addresses the effects of errors in financing statements and provides:

(1) A financing statement substantially complying with the requirements of this part is effective, even if it has minor errors or omissions, unless the errors or omissions make the financing statement seriously misleading.

(2) Except as otherwise provided in subsection (3), a financing statement that fails sufficiently to provide the name of the debtor in accordance with s. 679.5031(1) is seriously misleading.

(3) If a search of the records of the filing office under the debtor’s correct name, using the filing office’s standard search logic, if any, would disclose a financing statement that fails sufficiently to provide the name of the debtor in accordance with s. 679.5031(1), the name provided does not make the financing statement seriously misleading.

§ 679.5061, Fla. Stat.

            The Bankruptcy Court ruled in favor of Live Oak by finding that although Live Oak’s UCC filings did not correctly identify the debtor, the safe harbor provision of § 679.5061(3) was applicable since a search of the Florida Secured Transaction Registry discloses the financing statements containing the wrongly named debtor on the page immediately preceding the initial page that appears when searching by the proper name of the debtor.  The Bankruptcy Court believed that such a search result was consistent with standard search logic and thus the filings were not “seriously misleading”.  The Florida Middle District Court, sitting as an appellate court, followed the Bankruptcy Court’s logic and affirmed.

Beach Boulevard appealed to the Eleventh Circuit where the court certified three questions to the Florida Supreme Court:

(1) Is the “search of the records of the filing office under the debtor’s correct name, using the filing office’s standard search logic,” as provided for by Florida Statute § 679.5061(3), limited to or otherwise satisfied by the initial page of twenty names displayed to the user of the Registry’s search function?

(2) If not, does that search consist of all names in the filing office’s database, which the user can browse to using the command tabs displayed on the initial page?

(3) If the search consists of all names in the filing office’s database, are there any limitations on a user’s obligation to review the names and, if so, what factors should courts consider when determining whether a user has satisfied those obligations?

1944 Beach Boulevard, LLC v. Live Oak Banking Co. (In re NRP Lease Holdings, LLC), 20 F.4th 746, 758 (11th Cir. 2021).

            In analyzing the questions presented, the Florida Supreme Court determined that the more appropriate question was: “Is the filing office’s use of a ‘standard search logic’ necessary to trigger the safe harbor protection of section 679.5061(3)?”, which they answered in the affirmative.[1]  In coming to that conclusion, the Court found that under subsection 1, a financing statement can overcome errors if the errors do not make the financing statement seriously misleading. However, under subsection 2, the Court states that it is seriously misleading and there is a zero-tolerance where the name of the debtor is not correctly stated as required by § 679.5031(1)[2]
The Safe Harbor of subsection 3 is only applicable if the Registry employs “standard search logic”.

            In deciding the matter, the Florida Supreme Court analyzed and adopted the UCC’s definition of standard search logic and concluded that Florida’s UCC registry does not employ standard search logic.  Whereas a search using standard search logic will generate a finite list of names, Florida’s UCC registry searches return 20 names on a page starting with the most relevant name.  The results are located in a section of the entire list of filings and a user would have to toggle forward and backwards to find additional results.  The Court agreed with the analysis of Professor Kenneth C. Kettering, that a “search procedure that returns as hits, for any search string, all financing statements in the filing office’s database cannot rationally be treated as a ‘standard search logic.’” [3]

            Since the Florida Secured Transaction Registry does not apply standard search logic, making the Safe Harbor inapplicable, the Court did not reach the questions certified by the 11th Circuit and held that as long as the Registry does not employ standard search logic, any error in stating the debtor’s name will cause a financing statement to be seriously misleading and render the secured interest unperfected.



[1] 1944 Beach Boulevard, LLC v. Live Oak Banking Co., No. SC21-1717, 2022 WL 3650803, at *1 (Fla. Aug. 25, 2022).

[2] (1) A financing statement sufficiently provides the name of the debtor:

(a) Except as otherwise provided in paragraph (c), if the debtor is a registered organization or the collateral is held in a trust that is a registered organization, only if the financing statement provides the name that is stated to be the registered organization’s name on the public organic record most recently filed with or issued or enacted by the registered organization’s jurisdiction of organization that purports to state, amend, or restate the registered organization’s name.

[3] Id. at *12, citing to Kenneth C. Kettering, Standard Search Logic under Article 9 and the Florida Debacle, 66 U. Miami L. Rev. 907, 913 (2012).

Wednesday, October 12, 2022

Evaluating Fraudulent Transfer Liability for Pass-Through Tax Distributions – Start with the F-Squared Opinion


By Peter J. Klock, II
Partner, BAST AMRON LLP
Miami, Florida 

               



Generally speaking, when a corporation pays dividends or distributions to its shareholders, the law does not consider the corporation to have received “reasonably equivalent value” in exchange for the payments.  For a solvent corporation authorizing and paying dividends in the ordinary course of business, the lack of reasonably equivalent consideration received in exchange for the dividends is a non-issue.  But where a corporation is insolvent, the dividends paid leave it with unreasonably small capital, or it is unable to pay its debts as they mature, dividends paid to shareholders are susceptible to being clawed back via, among other things, claims for the avoidance of constructively fraudulent transfers under applicable state or federal law.

            While resolution of such claims typically hinges on the solvency or insolvency of the corporation at the time of the transfers at issue, under narrow circumstances, defendants may be able to defeat efforts to claw back distributions made for the purposes of paying pass-through taxes.  In her recent opinion in the matter of In re: F-Squared Investment Management, LLC, 633 B.R. 663 (Bankr. D. Del. 2021), Bankruptcy Judge Silverstein thoughtfully analyzed several cases dealing with claims to claw back tax distributions and explained the reasoning succinctly, stating, “a transfer is not fraudulent if creditors are ‘no worse off’ as a result of the challenged transactions.”  

In the case before her, the debtor (a limited liability company) had made a number of pre-petition transfers to its members to pay their pass-through tax obligations.  After the debtor filed for chapter 11 protection, the trustee of the liquidating trust brought a dozen adversary proceedings seeking to avoid distributions to the members, including the tax distributions, as fraudulent transfers.  At the summary judgment stage, Judge Silverstein carved out and granted summary judgment in favor of the defendants on the claims to recover the tax distributions, finding that they had been made for reasonably equivalent value.  Critical to her determination was the fact that the debtor had previously converted from a C-Corp to an LLC, and its shareholders were induced to approve the conversion by a promise that the converted LLC would make quarterly distributions sufficient to cover their pass-through tax obligations.  The operating agreement of the LLC also expressly stated that the members were entitled to receive tax distributions sufficient to cover their pass through obligations, and the tax distributions were actually in amounts commensurate with estimated pass-through taxes (i.e., for periods in which the debtor did not profit, it did not issue tax distributions).

Under these circumstances, the debtor was no worse off due to its payment of the tax distributions.  Had the transferees not approved the conversion, the debtor would have had to pay income tax on its revenue, and the debtor was therefore no worse off as a result of the conversion and payment of distributions (which the Court viewed as one cohesive transaction) to cover pass-through taxes.  For that reason, Judge Silverstein distinguished the case before her from a case which did not involve conversion from a C-Corp to an LLC or S-Corp premised upon the payment to members or shareholders of funds to pay pass-through tax liability.

Bankruptcy trustees, insolvency litigators, and corporate attorneys alike should take heed of the F-Squared opinion and the cases discussed therein.  For those prosecuting or defending claims for the avoidance of fraudulent transfers, the merits of the claim will likely turn on the factors identified by Judge Silverstein.  For those organizing or converting to pass-through entities, the members’ or shareholders’ potential liability for such claims will likely turn on the language of the operating agreement or by-laws. 

Friday, February 7, 2020

Supreme Court Holds that a Final, Appealable Order Results When a Bankruptcy Court "Unreservedly" Grants or Denies Stay Relief


Written by:
Jonathan D’Andrea
Term Law Clerk for Judge Russ Kendig
U.S. Bankruptcy Court, Northern District of Ohio

            In Ritzen Group, Inc. v. Jackson Masonry, LLC, __ U.S. __, (No. 18-938, Jan. 14, 2020), the U.S. Supreme Court recently held that a bankruptcy court’s unreserved denial or grant of a motion for relief from stay constitutes a final, appealable order.  Although the Court explicitly declined to decide whether an order denying stay relief “without prejudice” constitutes a final order, the decision provides a bright-line rule as to the finality of orders granting or denying stay relief.  And, as the Court explained, the ruling will prevent the delay of appellate review of fully adjudicated disputes. 

            The case began in state court as a breach of contract dispute between Ritzen Group, Inc. (“Ritzen”) and Jackson Masonry, LLC (“Jackson”).  Shortly before trial, Jackson filed a petition for relief under chapter 11 of the Bankruptcy Code, halting the state court litigation.  See 11 U.S.C. § 362(a).  In the bankruptcy case, Ritzen filed a motion for relief from stay to proceed with the state court trial.  Ritzen argued that Jackson filed its bankruptcy petition in bad faith, warranting stay relief.  The bankruptcy court disagreed and denied Ritzen’s motion. 

            Ritzen had 14 days after entry of the denial order to appeal the bankruptcy court’s decision, 28 U.S.C. § 158(c)(2), but failed to do so within this time period.  Instead, Ritzen pursued its breach of contract claim against Jackson in the bankruptcy court, filing a proof of claim and an adversary proceeding against Jackson.  But the bankruptcy court found that Ritzen, not Jackson, had breached the contract at issue, and disallowed Ritzen’s claim.  The bankruptcy court subsequently confirmed Jackson’s chapter 11 plan, which effectively barred Ritzen from pursuing its claim against Jackson any further.

            Ritzen appealed the bankruptcy court’s order denying relief from stay and the order resolving Ritzen’s breach of contract claim to the district court.  The district court sided with the bankruptcy court on both issues.  Ritzen further appealed to the U.S. Court of Appeals for the Sixth Circuit.  The Sixth Circuit held that the order denying Ritzen’s motion for relief from stay was a final order, triggering the 14-day period to file a notice of appeal.  Thus, Ritzen failed to timely appeal.

            The issue for the Supreme Court to decide was whether orders denying motions for relief from stay are final and immediately appealable under 28 U.S.C. § 158(a)(1).  A unanimous Supreme Court answered this question in the affirmative, offering several reasons:  First, in Bullard v. Blue Hills Bank, 575 U.S. 496 (2015), the Court held that a bankruptcy court order denying plan confirmation with leave to amend was not final because it did not conclusively resolve the confirmation proceeding.  Bullard, 575 U.S. at 499, 502-03.  Analyzing the current case under this paradigm, the Court explained that adjudication of a motion for relief from stay is a “discrete proceeding,” the resolution of which constitutes a final, appealable order.  Second, 28 U.S.C. § 157(b)(2)(G) describes motions to terminate, annul, or modify the automatic stay as “core proceedings”, and these are listed separately from proceedings regarding the allowance or disallowance of claims, indicating that Congress intended for stay-relief adjudications to be considered final.  Third, resolution of a motion for relief from stay can be significant and consequential, resulting in more than just a determination as to the appropriate forum for claim adjudication, which lends support to the notion that such orders should be considered final.  Fourth, the Court rejected Ritzen’s argument that a stay-relief denial should not be considered final when, as in this case, the bankruptcy court’s decision rested on a substantive legal issue.  Finally, the Court explained that its rule will avoid delays and inefficiencies regarding appeals.    

            Bright-line rules are always easier to remember, and the Supreme Court’s decision in Ritzen provides one: orders granting or denying relief from stay are considered “final” under 28 U.S.C. § 158(a)(1).  Bankruptcy practitioners should be aware of the decision and its effect on the timing of bankruptcy appeals.  See 28 U.S.C. § 158(c)(2); Fed. R. Bankr. P. 8002(a).  

* Disclaimer: None of the statements contained in this article constitute the official view or policy of any judge, court or government employee. 

Friday, June 21, 2019

The Supreme Court Rejects a Strict Liability Standard for Considering Violations of the Discharge Injunction

Beau Hays
Hays, Potter & Martin, LLP
Peachtree Corners, GA


TAGGART v LORENZEN, __ U.S. __, (No. 18-489, June 3, 2019)


            A unanimous Supreme Court has announced a standard of review for contempt actions based upon the discharge injunction in §524(a)(2), which differs from that applied by any court previously considering the question:  A creditor may be in civil contempt for violating the discharge injunction if there is “no fair ground of doubt” as to whether the order barred the creditor’s conduct.  The Court specifically labeled the limits of this doubt as being “when there is no objectively reasonable basis for concluding that the creditor’s conduct might be lawful.”

            Previous to this pronouncement, courts had been applying what was generally called a “strict liability” standard – a simple two-prong test of (1) was the creditor aware of the discharge order and (2) did the creditor intend the action violated the Order.  “[T]his court adopted a two-pronged test to determine willfulness in violating the automatic stay provision of § 362. Under this test the court will find the defendant in contempt if it: ‘(1) knew that the automatic stay was invoked and (2) intended the actions which violated the stay.’  This test is likewise applicable to determining willfulness for violations of the discharge injunction of § 524.”  In re Hardy, 97 F.3d 1384, 1390 (11th Cir., 1996).  In the Taggart case, the Bankruptcy Court for District of Oregon followed the “strict liability” standard in sanctioning the creditor’s conduct; the good faith belief of the creditor that its actions were not a violation of the discharge injunction was irrelevant to the analysis. 

            The flaw in this mechanistic approach is evident from the facts in the Taggart case.  The decision by the Ninth Circuit BAP spends six pages reciting the facts which led to the Bankruptcy Court’s decision to sanction the creditor.  Included in that lengthy tale is the fact that both an Oregon state trial court and the Bankruptcy Court itself had previously determined that the creditor’s action was not a violation of the discharge injunction.  After the U.S. District Court over-ruled the Bankruptcy Court’s finding, the case went back to the Bankruptcy Court, which was placed in the odd position of determining the sanction for contempt resulting from action the Court had previously approved.  The creditor appealed the $100+k sanction award to the Ninth Circuit BAP.

            The BAP reversed the Bankruptcy Court.  After reviewing the usual strict liability standard, the BAP focused on the first prong of the test, whether the creditor had “actual knowledge” that the discharge order applied to its actions.  Since the facts of the case show that, in large part, the post-discharge litigation revolved primarily around whether the claims were discharged at all, the BAP found that until that issue had been decided adversely to the creditor, the creditor “could not possibly have been aware that the discharge injunction was applicable.”  Emmert v Taggert, 548 B.R. 275, 291 (9th Cir BAP 2016).  As the BAP noted, the decision by the US District Court that the injunction did apply actually ended the creditor’s actions – and the BAP was unwilling to sanction a party for simply litigating a disputed issue.

            The Debtor then appealed to the Ninth Circuit, which affirmed the BAP while changing the analysis used to determine that the creditor had not been in contempt.  Where the BAP focused on the creditor’s knowledge of the applicability of the discharge injunction, the Ninth Circuit ruled that – as to this first prong – “the creditor’s good faith belief that the discharge injunction does not apply to the creditor’s claim precludes a finding of contempt, even if the creditor’s belief is unreasonable.”  Lorenzen v Taggert, 888 F.3d 438, 444 (9th Cir. 2018).  As the creditor here clearly had a good faith belief, the contempt finding was held to be erroneous.

            The Debtor applied for certiorari to the Supreme Court, to challenge the Ninth Circuit’s “good faith belief” standard.  The Court agreed with the Debtor that the Ninth Circuit was wrong, but also rejected the “strict liability” approach applied in the Bankruptcy Court and urged by the Debtor. 

            Instead, the Court found that the test to be applied is whether there is “no objectively reasonable basis” for the creditor’s conduct.  (The Court did not directly declare that the two-prong analysis is overruled, but the discussion makes clear that the Court did not believe that the “strict liability analysis is appropriate at all.)  The Court looked at this issue from the traditional principles of civil contempt when applied to other injunction violations.  The Court emphasized that, outside the bankruptcy context, contempt is not appropriate “where there is a fair ground of doubt as to the wrongfulness of the Defendant’s conduct.”  [Page 6, cit. omitted]  The Court made plain that the creditor’s subjective belief is not decisive (as the Ninth Circuit had found) but might assist the court in deciding what sanction – if any – would be appropriate.

            Since the courts below had not applied this “objectively reasonable basis” standard, the case was remanded.  Given the Bankruptcy Court’s prior conclusion that the creditor was correct in claiming that the injunction did not apply, it seems likely that that Court will conclude the creditor had the requisite “fair ground of doubt” necessary to avoid sanction for contempt.

            While not as creditor-friendly as the Ninth Circuit’s “good faith basis” standard would have been, the Taggert opinion does give a glimmer of hope to creditors in discharge injunction litigation.  It may not be often that the “fair ground of doubt” can be established, but compared to the strict liability test utilized up to this point, a creditor with a credible argument may proceed with the thought that it may avoid a sanction simply for trying.

            An even more encouraging note for creditors comes in the final paragraph of the Taggert opinion.  The Debtor contended that a strict liability approach would be consistent with the standard used to remedy stay violations.  The Court distinguished the specific language in §362
(“willful violations”) with the general authority under §105, but then commented in a parenthetical that “willful” is also not typically associated with strict liability.  The Court noted that it was not deciding whether “willful” in §362 would support a strict liability standard, but the implication is that the Court would view sympathetically a creditor sanctioned for an objectively reasonable action but ultimately found to violate the automatic stay.