Dymarkowski v. McConegly

The court incorporates by reference in this paragraph and adopts as the findings and analysis

of this court the document set forth below. This document has been entered electronically in

the record of the United States Bankruptcy Court for the Northern District of Ohio.

wy sen

John P. Gustafson

Dated: January 12 2021 United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

In Re: ) Case No. 19-30310

)

Christopher M. Martin, ) Chapter 7

)

Debtor. ) Adv. Pro. No. 19-03046

)

Douglas Dymarkowski, Trustee, ) Judge John P. Gustafson

)

Plaintiff. )

V. )

)

Kathleen E. McConegly, )

)

Defendant. )

MEMORANDUM OF DECISION AND ORDER REGARDING PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

This cause is before the court on Plaintiff-Trustee Douglas Dymarkowski’s (“Plaintiff” or

“Trustee”) Motion for Summary Judgment. Plaintiff-Trustee is the duly appointed Chapter 7

Trustee of the bankruptcy estate of Debtor Christopher M. Martin (“Debtor”). Plaintiff-Trustee

filed a Complaint to Avoid Fraudulent Transfer and Recover Property against Defendant Kathleen

E. McConegly (“Defendant”), who received a transfer of $21,000.00 from the Debtor in September

2018 (“Transfer”).

JURISDICTION AND VENUE

The court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §1334(b)

as a civil proceeding arising in or related to a case under Title 11. The Chapter 7 case and all

proceedings in it arising under Title 11, including this adversary proceeding, have been referred to

this court for decision. 28 U.S.C. §157(a); General Order 2012-7 of the United States District

Court for the Northern District of Ohio. This is a core matter pursuant to 28 U.S.C. §157(b)(2)(H).

Venue is proper pursuant to 28 U.S.C. §1409(a).

FACTUAL BACKGROUND

On summary judgment the types of evidence the court may consider are governed, in part,

by Federal Rule of Civil Procedure 56(c)(1)(A)-(B),1 which states:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by:

(A) citing to particular parts of the materials in the record, including

depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion

only), admissions, interrogatory answers or other materials; or

(B) showing that the materials cited do not establish the absence or presence

of a genuine dispute, or that an adverse party cannot produce admissible

evidence to support the fact.

1/ Formerly Fed.R.Civ.P. 56(e).

Federal Rule of Civil Procedure 56(c)(3) further provides that: “The court need consider

only the cited materials, but it may consider other materials in the record.”

Plaintiff submitted the following in support of their motion:

1. Debtor’s Huntington Bank checking account statement showing a deposit of $21,466.67

on September 6, 2018 and a payment of $21,000.00 on September 10, 2018 attached as

Exhibit A. [Adv. Doc. #28, p. 19].

2. A copy of a check made out to Defendant in the sum of $21,000.00 attached as Exhibit B.

[Adv. Doc. #28, p. 20].

3. Defendant’s PNC bank account statement indicating a deposit of $21,000.00 on September

10, 2018 attached as Exhibit C. [Adv. Doc. #28, p. 21].

4. An unsigned document titled “Final Borrower’s Statement” attached as Exhibit D. [Adv.

Doc. #28, pp. 22-24].

5. Plaintiff’s First Set of Requests for Admission, Interrogatories and Requests for Production

of Documents attached as Exhibit E. [Adv. Doc. #28, pp. 25-41].

6. A Property Record Card attached as Exhibit F. [Adv. Doc. #28, pp. 42-43].

7. The United States Trustee’s Complaint to Deny Discharge of Christopher M. Martin or to

Dismiss for Abuse. [Adv. Doc. #33-1].2

8. Debtor’s Answer to an amended complaint filed by the United States Trustee in a separate

Adversary Case No. 19-03016, this exhibit is attached as Exhibit H.3 [Adv. Doc. #28, pp.

51-57].

9. A Memorandum of Opinion by the Honorable Russ Kendig, United States Bankruptcy

Judge for the Northern District of Ohio, Eastern Division, attached as Exhibit I. [Adv. Doc.

#28, pp. 58-66].

Defendant submitted the following in support of their Objection to Summary Judgment:

1. Declaration of Kathleen E. McConegly. [Adv. Doc. #32, pp. 9-11].

2/ On September 15, 2020, Plaintiff submitted a Substitution of Exhibit to Plaintiff’s Motion attaching Exhibit G.

[Adv. Doc. #33].

3/ The Debtor in the underlying bankruptcy case was a Defendant in a separate Adversary Case, Case No. 19-03016.

2. Declaration of Christopher Martin. [Adv. Doc. #32, pp. 12-13].

3. Debtor’s Edward Jones Traditional Individual Retirement Account – Select statement,

including information to complete a 2018 Form 1099-R, attached as Exhibit A. [Adv. Doc.

#32, pp. 14-21].

Neither party objected to the exhibits offered by the opposing party under Federal Rule of

Civil Procedure 56(c)(2). See generally, In re LTC Holdings, Inc., 596 B.R. 797, 802 n. 14 (Bankr.

D. Del. 2019)(discussing the 2010 amendments to Rule 56 streamlining the summary judgment

process).

It should be noted that statements made in briefs are not facts that the court can consider in

deciding a motion for summary judgment.4 Accordingly, statements from the briefs that lack

record support do not appear in the “Factual Background” section because they are not evidence

the court can properly consider as supporting the Motion for Summary Judgment and Objection to

Summary Judgment.

Before the purchase of the residential property located at 110 Columbus Ave, Huron, Ohio

(“Property”), Defendant asserts that she owned a home and was the co-signer on her daughter’s

college loans and could not obtain financing for the Property on her own. [Adv. Doc. #28, Ex. E,

p. 35, Q. #13]. About two weeks before the September 24, 2018 closing of the Property,

Defendant’s bank denied her a bridge loan that Defendant planned on using to finance the purchase

of the Property. [Id.; Adv. Doc. #32, pp. 9, 12, Declaration of Kathleen E. McConegly, ¶¶2-3,

Declaration of Christopher Martin, ¶4]. Defendant asserts she was unsure she would qualify for

another loan. [Adv. Doc. #28, Ex. E, p. 35, Q. #13; Adv. Doc. #32, p. 9, Declaration of Kathleen

E. McConegly, ¶3].

4/ Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006)(“It is well established that statements appearing in a

party’s brief are not evidence.”); see also, Ragone v. Pizza Pan Elyria, LLC (In re Ragone), 2019 WL 2202941, *5,

2019 Bankr. LEXIS 1548, **13-15 (Bankr. N.D. Ohio May 21, 2019)(citations omitted)(collecting cases).

Debtor decided to help Defendant with the down payment for the Property. [Adv. Doc.

#28, Ex. E, p. 35, Q. #14; Adv. Doc. #32, pp. 9-10, 13, Declaration of Kathleen E. McConegly,

¶¶4-5, Declaration of Christopher Martin, ¶6]. On or about September 6, 2018, Debtor withdrew

$23,946.695 from his Individual Retirement Account (“IRA”). [Adv. Doc. #28, Ex. E, p. 35, Q.

#14; Adv. Doc. #28, Ex. A, p. 19; Adv. Doc. #32, pp. 9, 13, Declaration of Kathleen E. McConegly,

¶7, Declaration of Christopher Martin, ¶7; Adv. Doc. #32, Ex. A, p. 16]. On September 6, 2018,

Debtor drew a check made payable to Defendant for $21,000.00. [Adv. Doc. #28, Ex. B, p. 20,].

That same day, Defendant presented the check from Debtor at Defendant’s bank. [Adv. Doc. #28,

Ex. C, p. 21; Adv. Doc. #32, p. 10, Declaration of Kathleen E. McConegly, ¶7]. On September

24, 2018, Defendant purchased the Property. [Adv. Doc. #28, Ex. E, p. 35, Q. #14; Adv. Doc. #28,

Ex. D, p. 22; Adv. Doc. #32, p. 9, Declaration of Kathleen E. McConegly, ¶2].

Defendant and Debtor now claim that at the time of the Transfer Debtor intended to move

in with Defendant and get married,6 claiming that they both planned and expected to get married

after Defendant purchased the Property and as Defendant’s son progressed further through college.

[Adv. Doc. #28, Ex. E, pp. 35-36, Q. #15; Adv. Doc. #32, pp. 10, 13, Declaration of Kathleen E.

McConegly, ¶10, Declaration of Christopher Martin, ¶9]. Debtor and Defendant’s basis for the

Transfer was their marriage in the near future. [Adv. Doc. #28, Ex. E, pp. 35-36, Q. #15; Adv.

Doc. #32, pp. 9, 13, Declaration of Kathleen E. McConegly, ¶5, Declaration of Christopher Martin,

5/ After Federal and State tax withholdings, the remaining funds totaled $21,466.47. [Adv. Doc. #32, pp. 10, 13,

Declaration of Kathleen E. McConegly, ¶7, Declaration of Christopher Martin, ¶6; Adv. Doc #32, p. 14, Ex. A]. In

Official Form 107 (Statement of Financial Affairs for Individuals Filing for Bankruptcy), Part 7: “List Certain

Payments or Transfers,” Debtor did not list this withdrawal. See, [No. 19-30310, Doc. #1, p. 35].

6/ As part of Defendant’s defense, she relies on Debtor’s Declaration. [Adv. Doc. #32, p. 12, Declaration of

Christopher Martin]. However, Debtor’s declarations conflicts with his testimony at the First Meeting of Creditors.

Compare [Adv. Doc. #33-1, p. 5](At Debtor’s Meeting of Creditors, Debtor provided that Defendant and Debtor

were only “dating” and their relationship was “nothing serious.”) with [Adv. Doc. #32, p. 12, Declaration of

Christopher Martin, ¶9](“I intended to move in with [Defendant] since we hoped to get married in the future.”).

¶5].

Defendant is the sole title owner of the Property. [Adv. Doc. #32, p. 9, Declaration of

Kathleen E. McConegly, ¶6]. The Declarations of both Defendant and Debtor7 aver that they

began living together at the Property in January 2019. [Adv. Doc. #32, pp. 10, 12, Declaration of

Kathleen E. McConegly, ¶12, Declaration of Christopher Martin, ¶11]. Defendant also states that

she believed Debtor would have an ownership interest in the Property because Debtor’s funds

allowed Defendant to complete the purchase of the Property. [Adv. Doc. #28, Ex. E, p. 35-36, Q.

#15; Adv. Doc. #32, p. 10, Declaration of Kathleen E. McConegly, ¶9]. Additionally, Debtor’s

contribution to the expenses related to the Property, such as the monthly rent and upkeep related

to the home, furthered Defendant’s belief that Debtor had some type of interest in the Property.

[Adv. Doc. #32, p. 10, Declaration of Kathleen E. McConegly, ¶9].

The Debtor filed for relief under Chapter 7 of Title 11 of the United States Code on or

about February 7, 2019. [19-30310, Doc. #1;8 Adv. Doc. #32, p. 13, Declaration of Christopher

Martin, ¶8]. At the time of filing, the Debtor did not disclose an interest in any retirement or

pension account. [Adv. Doc. #32, p. 13, Declaration of Christopher Martin, ¶8]. Nor did Debtor

disclose9 the Transfer, nor did he disclose either the existence of the IRA, which appears to have

7/ In Debtor’s Declaration, he states that he “intended to move in with [Defendant].” [Adv. Doc. #32, p. 13,

Declaration of Christopher Martin, ¶12]. Yet at Debtor’s Meeting of Creditors he responded “no” when asked, “did

someone live with you on the day you filed bankruptcy?” and after being asked “[Defendant] does not live at the

[Property]?” Debtor responded, “no she does not.” [Adv. Doc. #33-1, Ex. G, pp. 4, 5]. Additionally, Plaintiff’s

seventeenth interrogatory asks the Defendant to list and disclose the time period in which you resided at the real

property located at 110 Columbus, Avenue, Huron, Ohio, in which Defendant answers “I lived here from November

2018 through the present time.” [Adv. Doc. # 28, Ex. E, p. 26, Q. #17].

8/ References to the docket in the “Main Case,” Case No. 19-30310, will be cited as [Doc. #_]. References to the

docket in this Adversary Case, Case No. 19-03046, will be cited as [Adv. Doc. #_].

9/ See infra Part IV.

been held in an Edward Jones account.10 [Adv. Doc. #28, pp. 35-36, Q. ##13, 18, & 20; Adv. Doc.

#21, pp. 14-21].

Debtor owes approximately $4,400.00 in taxes based on Debtor’s IRA withdrawal, which

Defendant states she had verbally committed to pay. [Adv. Doc. #28, Ex. E, p. 35, Q. #13; Adv.

Doc. #32, pp. 10, 13, Declaration of Kathleen E. McConegly, ¶8, Declaration of Christopher

Martin, ¶12].

Since moving into the Property, Debtor and Defendant assert that Debtor has saved on

monthly expenses: “as a result of moving in, the utilities, insurance, internet, cable, and ‘rent’ are

reduced below what he was paying before he moved into” the Property. [Adv. Doc. #28, Ex. E, p.

36-37, Q. #19; Adv. Doc. #32, p. 10, 13, Declaration of Kathleen E. McConegly, ¶12, Declaration

of Christopher Martin, ¶¶10, 11]. The Debtor and Defendant assert that Debtor canceled a storage

rental agreement of $100.00 a month11 since he can now use the garage at the Property. [Id.].

Living at the Property has also allowed Debtor to save thirty miles a day in his commute to work.

[Id.]. Additionally, Defendant asserts that the Debtor has saved money on insurance costs and

laundry, since he can now do laundry at the Property.12 [Id.]. Lastly, Debtor and Defendant claim

10/ A Huntington bank account statement showing a transfer into the account of $21,466.47 from “Edward Jones

Investment.” [Adv. Doc. #28, Ex. A]. Debtor’s “Traditional Individual Retirement Account – Select” statement

dated from September 1, 2018 to September 28, 2018 and 2018 Form 1099-R. [Adv. Doc. #32, pp. 14-21]. Q. 21 of

Official Form 106A/B, Schedule A/B: Property asks the debtor if they “own or have any legal or equitable interest

in any of the following?” Debtor checked the box indicating “no” when asked if Debtor had any “Retirement or

pension accounts.” [Doc. #1, p. 13]

11/ Debtor’s Schedule J reflects $100 a month going for storage. [Doc. #1, Schedule J, p. 30, Line 17c]. On Line

24 of Schedule J, Debtor checked the box stating “no,” he did not expect an increase or decrease in his expenses in

the year after filing. [Id.].

12/ Debtor did not list any laundry expenses on Schedule J. [Doc. #1, Schedule J, p. 30, Line 9]. Debtor is subject to

impeachment at trial for his prior allegedly inconsistent statements. However, at this stage in the proceedings, this

court is required to view the facts and draw reasonable inferences “in the light most favorable to the party opposing

the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–88, 106 S. Ct. 1348, 1355-57, 89

L.Ed.2d 538 (1986).

the move improved his overall health since this new environment, unlike his prior residence, does

not contribute to his health problems. [Id.].

On April 29, 2019, the Office of the United States Trustee filed an adversary action against

the Debtor, objecting to his discharge under 11 U.S.C. §727(c), (d), and (e). [Adv. Case No. 19-

03016, Doc. #1]. The adversary was resolved by an Agreed Judgment Entry Denying Discharge

of the Debtor. [Adv. Case. 19-03016, Doc. #1613 & #17 entered Dec. 16, 2019].

On August 6, 2019, Plaintiff-Trustee filed his Complaint in this adversary proceeding

seeking avoidance of Debtor’s Transfer of $21,000.00 to Defendant. [Adv. Doc. #1].

Defendant and Debtor were married on January 23, 2020. [Adv. Doc. #28, Ex. E, pp. 35-

36, Q. #15; Adv. Doc. #32, p. 10, Declaration of Kathleen E. McConegly, ¶10].

On May 26, 2020 this court entered an Adversary Proceeding Scheduling Order, [Adv.

Doc. #26], designating July 3, 2020 as the final day to file a motion for summary judgment, and

July 20, 2020 as the final day to file any response. [Doc. #26]. On July 2, 2020, Plaintiff filed his

Motion for Summary Judgment (“Motion”). [Doc. #28]. Defendant did not file her own Motion

for Summary Judgment. Defendant initially had until July 20, 2020 to file a response, but this

court granted an extension through July 24, 2020. [Adv. Doc. #31]. On July 24, 2020, Defendant

filed an Objection to Motion for Summary Judgment (“Objection”). [Adv. Doc. #32].

In Plaintiff’s Motion, Plaintiff seeks summary judgment on Plaintiff’s second and third

claims of his Complaint to Avoid Fraudulent Transfer and Recover Property (“Complaint”),

arguing that the Transfer is subject to avoidance under (1) 11 U.S.C. §548(a)(1)(B), or (2)

alternatively, §544(b). [Adv. Doc. #28, pp. 3-4]. Plaintiff ultimately seeks summary judgment on

13/ Document No. 16 used the “Incorrect Docket Event Code,” for the Correct Docket Event, see Document No.

17. For this reason, the docket in Case No. 19-03016 reflects two filings of an Agreed Judgment Entry for Denial of

Discharge of Christopher M. Martin.

Plaintiff’s fourth claim of the Complaint, and recovery of $21,000.00 under 11 U.S.C. §550 for

the benefit of the estate. [Adv. Doc. #28, pp. 4, 11]. In Defendant’s Objection,14 Defendant argues

that summary judgment is inappropriate for two reasons. First, because there is a genuine issue of

material fact with respect to whether Debtor received reasonably equivalent value in exchange for

the funds Defendant used to purchase the Property. [Adv. Doc. #32, pp. 5-6]. Second, based on

the alleged exempt status of the transferred funds. [Id. at pp. 6-7].

LAW AND ANALYSIS

I. Summary Judgment Standard.

Under Rule 56 of the Federal Rules of Civil Procedure, made applicable to this proceeding

by Federal Rule of Bankruptcy Procedure 7056, summary judgment is proper only where there is

no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). In reviewing a motion for summary judgment, however, all

inferences “must be viewed in the light most favorable to the party opposing the motion.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–88, 106 S. Ct. 1348, 1355-

57, 89 L.Ed.2d 538 (1986).

The party moving for summary judgment always bears the initial burden of informing the

court of the basis for its motion, “and identifying those portions of ‘the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Where the moving party

has met its initial burden, the adverse party “may not rest upon the mere allegations or denials of

his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.”

14/ Defendant also appears to request summary judgment in their objection [Adv. Doc. #32, pp. 4, 8].

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2570, 91 L.Ed.2d 202 (1986).

A genuine issue for trial exists if the evidence is such that a reasonable fact finder could

find in favor of the nonmoving party. Id. “The non-moving party, however, must provide more

than mere allegations or denials . . . without giving any significant probative evidence [] to support”

its position. Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998).

II. Claim Two.

Claim Two of the Complaint is brought under 11 U.S.C. §548(a)(1)(B). Section

548(a)(1)(B) addresses “constructively” fraudulent transfers. Merit Mgmt. Grp., LP v. FTI

Consulting, Inc., 138 S. Ct. 883, 889, 200 L.Ed.2d 183 (2018)(citing BFP v. Resol. Tr. Corp., 511

U.S. 531, 535, 114 S. Ct. 1757, 1760, 128 L.Ed.2d 556 (1994)); see also, Hagan v. Baird (In re B

& P Baird Holdings, Inc.), 759 F. App’x 468, 479 (6th Cir. 2019). The trustee has the burden of

showing the applicability of the above provision. Kovacs v. Berger (In re Berger), 2007 WL

2462646, at *3, 2007 Bankr. LEXIS 2884, at *7 (Bankr. N.D. Ohio Aug. 27, 2007)(Whipple,

J.)(citing Shapiro v. Matouk (In re Hayes), 322 B.R. 644, 646 (Bankr. E.D. Mich. 2005)).

A. Legal Framework for Constructively Fraudulent Transfers Under Section 548.

Subsection 548(a)(1)(B) allows a trustee to avoid a constructively fraudulent transfer.

Under this subsection, a debtor’s actual intent in making the transfer is irrelevant.

Section 548 provides in pertinent part:

(a)(1) The trustee may avoid any transfer . . . of an interest of the debtor in property . . .

that was made . . . on or within 2 years before the date of the filing of the petition, if the

debtor voluntarily or involuntarily—

. . . .

(B)(i) received less than reasonably equivalent value in exchange for such transfer

or obligation; and

(ii)(I) was insolvent on the date that such transfer was made[.]

Id.; §548(a)(1)(B)(i)-(ii)(I).

B. Analysis Under Section 548(a)(1)(B).

i. “Transfer”

First, Plaintiff must establish that there was a “transfer.” The Bankruptcy Code defines

“transfer” to mean “each mode, direct or indirect, absolute or conditional, voluntary or involuntary,

of disposing of or parting with— (i) property; or (ii) an interest in property.” 11 U.S.C.

§101(54)(D). Attached to Plaintiff’s Motion is a copy of a check made payable to Defendant.

[Adv. Doc. #28 p. 20, Ex. B]. “For the purposes of payment by ordinary check, therefore, a

‘transfer’ as defined by §101(54) occurs on the date of honor, and not before.” Barnhill v. Johnson,

503 U.S. 393, 400, 112 S. Ct. 1386, 1390, 118 L.Ed.2d 39 (1992). Here, Defendant’s bank honored

the check on September 10, 2018. [Adv. Doc. #28, Ex. E, p. 35, Q. #14]. The payment by check

satisfies the definition of a “transfer” in §105(54)(D) as a mode of parting with property or an

interest in property.

ii. “Interests of the debtor in property”

Second, Plaintiff must establish that Debtor had an interest in the property transferred at

the time of the transfer. 11 U.S.C. §541(a)(1)(B). Attached to the Trustee’s Motion is Debtor’s

bank statement15 that specifies the deposit of $21,466.47 from an Edward Jones Investment

Account held in Debtor’s name. [Adv. Doc. #32, Ex. A]. Also attached to the Motion was Debtor’s

Answer to U.S. Trustee’s Amended Complaint, in which Debtor admits that the transferred funds

belonged to the Debtor. [Adv. Doc. #33-1, Ex. G, Q. #26; Adv. Doc. #28, Ex. H, p. 53, ¶26].

iii. “Within two years before the date of the filing of the petition”

Third, Plaintiff must establish that the transfer was made within two years before the

15/ There is circumstantial evidence of the document being authenticated if the bank statement is one of the documents

produced to Plaintiff under the Request for Production. See, e.g., Welch v. Bissell, 2013 WL 6504679, at *4, 2013

U.S. Dist. LEXIS 173397, at *12 (N.D. Ohio Dec. 11, 2013).

Debtor filed his bankruptcy petition. As discussed above, the Transfer occurred on September 10,

2018 when Defendant’s bank honored the check. [Adv. Doc. #28, Ex. C, p. 21]. The Debtor filed

for relief under Chapter 7 of Title 11 of the United States Code on or about February 7, 2019, 150

days later. [Adv. Doc. #33-1, Ex. G, p. 2, Q. ##7, 8; Adv. Doc. #28, Ex. H, p. 44, ¶¶7, 8]. Further,

the Trustee’s Complaint alleged: “That the Transfer occurred within two (2) years of the Debtor

seeking bankruptcy relief,” which Defendant admitted in Paragraph 25 of her Answer, meeting the

requirement of 11 U.S.C. §548(a)(1). [Adv. Doc. #1, p. 4, ¶25; Adv. Doc. #9, p. 2, ¶25]. Thus,

there is no dispute that the Transfer occurred within two years before Debtor filed his bankruptcy

petition.

iv. “Reasonably equivalent value”

Fourth, Plaintiff must establish that Debtor “received less than a reasonably equivalent

value in exchange for such transfer.” The statute does not define “reasonably equivalent value,”

but 11 U.S.C. §548(d)(2)(A) does specify what “value” means for the purpose of §548:

“value” means property, or satisfaction or securing of a present or antecedent debt of the

debtor, but does not include an unperformed promise to furnish support to the debtor or to

a relative of the debtor.

“Reasonably equivalent value” is determined under the following analysis: the court first

determines whether “a debtor received any value for the exchange,” and “[i]f value was received,

the court then determines whether the value received was reasonably equivalent to the value

surrendered.” Slone v. Dirks (In re Dirks), 2009 WL 103606, at *7, 2009 Bankr. LEXIS 47, at

**22-23 (6th Cir. BAP 2009)(unpublished table opinion).

One of the main points of contention between the parties is whether Debtor received

reasonably equivalent value when he transferred the funds for the down payment on the purchase

of the Property. Plaintiff argues that Defendant’s use of funds is not relevant because Defendant

did not provide reasonably equivalent value to the Debtor after receiving the Transfer. [Adv. Doc.

#28, p. 7]. Plaintiff’s factual basis16 to establish and support his evidentiary burden are responses

to his first request for admissions and interrogatories. [Adv. Doc. #28, p. 25, Ex. E]. In Plaintiff’s

third request for admission, Defendant admitted that “the Debtor provided to you funds for the

purchase of the [Property].” [Id.]. In Plaintiff’s nineteenth interrogatory, Plaintiff asked the

Defendant to “please describe what consideration and value you provided to the Debtor in return

for such payments.” Defendant answered:

ANSWERS:

There was definite financial benefit to be realized by Christopher moving in to 110 Columbus

Ave. Through the $21,000 down payment, I considered him to have equal interest in the home

and planned for it to eventually become marital property. We both put work into the home

including painting, landscape repair, cosmetic improvements.

There was a considerable savings to Christopher by moving to Huron from

Vermilion. He is 15 miles closer to work (a 30 mile savings per day, and time savings when

called in on weekends). Instead of two sets of utilities, insurance, internet, cable and “rent”,

our finances would be combined with one internet, cable, and insurance cost, saving him half

of the total cost of each of these per month. Christopher would also be able to get rid of his

storage unit ($100 savings per month) due to the garage now available for his use.

Home and auto insurance would be lessened due to multi line discounts. Laundry was

previously a separate cost and expenditure of time to take it to a laundromat. His apartment

in Vermilion was in poor condition with odors (including neighbor’s drug use) contributing

to flare up of his asthma and was not an environment where he could continue to live and be

healthy.

[Id.].

Plaintiff argues that the Debtor did not receive reasonably equivalent value because any

value Debtor received was for the “rent” Debtor paid Defendant. Plaintiff points to Defendant’s

response to his fourteenth interrogatory to support his position: “Beginning in January 2019,

[Debtor] paid me (in cash) monthly for rent toward the house payment, shared utilities, groceries

and incidental home expenses. Payment ranged from $900 to $1300 per month depending on

16/ In Plaintiff’s Motion, he asserts these facts are not disputed. [Adv. Doc. #28, p. 7].

[Debtor’s] available money and the actual cost of utilities and expenses.” [Id.].

Defendant responds that there was reasonably equivalent value that, when viewed in the

light most favorable to the nonmoving party, would support a judgment in her favor. Defendant’s

position is that Debtor contributed to the down payment for the purchase of the Property because

Debtor and Defendant planned to get married. [Adv. Doc. #32, pp. 5-6]. Defendant asserts she

also provided reasonably equivalent value by agreeing to pay the tax liability associated with the

withdrawal from Debtor’s IRA. [Adv. Doc. #32, p. 6]. Lastly, Defendant argues that “value” was

given because Debtor’s expenses have been reduced by $14,500.00 as a result of living at the

Property. [Id.]. Defendant attached a Declaration of Kathleen E. McConegly and a Declaration of

Christopher Martin that set forth the factual assertions to support Defendant’s argument that

reasonably equivalent value was given:

• $4,400 in taxes Defendant agreed she would pay.

• The thirty-mile savings per day on Debtor’s commute to work for weekdays and weekends.

• A lowering of $800 a month in expenses for utilities, insurance, cable and rent.

• Savings of $100 a month since having a garage meant Debtor did not need a storage unit.

• Debtor’s ability to do laundry at the Property instead of a laundromat.

• Home and auto insurance costs have been reduced.

• Debtor’s health issues have improved since he started living at the Property.

[Doc. #32, pp. 10, 13, Declaration of Kathleen E. McConegly, ¶¶12-13, Declaration of Christopher

Martin, ¶¶10-12].

There are several problems with Defendant’s assertions.

The first issue is the timing of the “value” that Defendant claims was given to Defendant.

The Sixth Circuit Court of Appeals has held that: “The critical time is when the transfer is ‘made.’”

Allard v. Hilton (In re Chomakos), 69 F.3d 769, 771 (6th Cir. 1995), cert. den. Allard v. Hilton,

517 U.S. 1168, 116 S. Ct. 1568, 134 L.Ed.2d 667 (1996)(citing Copper v. Ashley Commc’ns, Inc.

(In re Morris Commc’ns NC, Inc.), 914 F.2d 458, 466 (4th Cir. 1990)(quoting Collier on

Bankruptcy §548.09 at p. 116 (15th ed.1984))). While some decisions have limited Chomakos

because it involved the value given in gambling transactions, there is substantial authority that for

purposes of determining “value,” courts should look at the time of the transaction. See, Lisle v.

John Wiley & Sons, Inc. (In re Wilkinson), 319 B.R. 134, 138-40 (Bankr. E.D. Ky. 2004), aff’d, In

re Wilkinson, 196 Fed. App’x. 337 (6th Cir. 2006)(“The date for determining reasonable

equivalence is the date of the transfer.”); Se. Waffles, LLC v. U.S. Dep’t of Treasury (In re Se.

Waffles, LLC), 460 B.R. 132, 139 (6th Cir. BAP 2011) aff’d, In re Se. Waffles, LLC, 702 F.3d 850

(6th. Cir. 2011); Nathan v. Libra (In re Libra), 584 B.R. 550, 559-60 (Bankr. E.D. Mich. 2018);

see also, 5 Collier on Bankruptcy, ⁋548.05[2][b] at 548-72 (16th ed. 2020)(“Likewise, any

consideration given after the transfer may not be weighed unless it was part of the original

bargain.”).

Further, the definition of “value” specifically states that it “does not include an

unperformed promise to furnish support to the debtor or to a relative of the debtor; . . .”. See, 11

U.S.C. §548(d)(2)(A).

Going through the items that Defendant claims to represent “value,” the promise to pay

$4,400.00 in taxes and/or penalties for the withdrawal of funds from the Debtor’s IRA does not

appear to be enforceable under Ohio law unless it was in writing. See, O.R.C. §1335.05 (“No

action shall be brought whereby to charge the defendant, upon a special promise, to answer for the

debt, . . . of another person” unless there is an agreement “in writing and signed by the party to be

charged[.]”). The affidavit of Defendant states that the promise to pay the $4,400.00 was verbal.

[Adv. Doc. #32, p. 10, Declaration of Kathleen E. McConegly, ⁋8](“I verbally committed to him

I would pay.”). Nor has any evidence been presented, or even assertion made, that the $4,400.00

was actually paid. To the extent that this could be considered a “unperformed promise to furnish

support for the debtor,” it would be excluded from “value” under the statutory definition. See, cf.

United States v. Key, 2020 WL 6821687, at *3, 2020 U.S. App. LEXIS 36656, at *9 (6th Cir. Nov.

20, 2020)(“[Transferee] needed to prove that he actually paid the back-taxes at the time of the

transfer in order to demonstrate that there was an exchange of ‘reasonably equivalent’ value.

Simply promising to pay taxes is insufficient, because an ‘unperformed promise’ does not

constitute ‘value.’”).

Similarly, it is difficult to see how the savings that are asserted actually started until the

Debtor moved into the Property “in January 2019.” [Adv. Doc. #32, p. 10, Declaration of Kathleen

E. McConegly, ⁋12]. The Transfer of the approximately $21,000.00 was made on September 10,

2018, and according to Defendant’s Declarations, Debtor moved into the Property no earlier than

January 1, 2019, which is 113 days later.

There is no evidence or explanation how any savings on mileage for Debtor’s commute,

the lowering of utilities, insurance, cable and rent, or the reduction in home and auto insurance

could have been commenced at the time of the Transfer.

The Defendant and Debtor cite to the reduction in storage costs in their Declarations, but

Debtor listed a $100.00 a month expense for storage on Schedule J, filed under penalty of perjury

on February 7, 2019. The box was checked, at the bottom of Schedule J, reflecting that no changes

in expenses were expected. It will be difficult to show that the reduction in storage costs was part

of the “deal” to give Defendant the $21,000.00 when the Debtor’s Schedule J reflects that he did

not know he would be saving that money more than four months later.

Although Plaintiff is correct, that the value a debtor receives must be comparable to the

worth of the transferred property, the debtor need not collect a dollar-for-dollar equivalent and

must only receive “reasonably equivalent value” to the value surrendered. See, BFP v. Resol. Tr.

Corp., 511 U.S. 531, 548, 114 S. Ct. 1757, 1767, 128 L.Ed.2d 556 (1994)(“the inquiry under

§548(a)(2)(A)—whether the debtor has received value that is substantially comparable to the

worth of the transferred property—is the same for all transfers.”); Slone v. Dirks (In re Dirks), 407

B.R. 442, 2009 WL 103606, at *7, 2009 Bankr. LEXIS 47, at **22-23 (6th Cir. BAP

2009)(unpublished table opinion). Additionally, it has been held that “reasonably equivalent

value” does not include emotional and non-economic benefits. See, DeGiacomo v. Sacred Heart

Univ., Inc. (In re Palladino), 942 F.3d 55, 59 (1st Cir. 2019)(citing Tavenner v. Smoot, 257 F.3d

401, 408-09 (4th Cir. 2001)).

However, “reasonably equivalent value is not an esoteric concept” and is not limited to

money or to value transferred pursuant to a “valid contract.” Nathan v. Libra (In re Libra), 584

B.R. 550, 560 (Bankr. E.D. Mich. 2018)(quoting VFB, LLC v. Campbell Soup Co., 482 F.3d 624,

631 (3d Cir. 2007) and BankEast v. Shirley (In re Shirley ), 2011 WL 4054773, at *10, 2011 Bankr.

LEXIS 3496, at *30 (Bankr. E.D. Tenn. Sept. 12, 2011)(quoting For Your Ease Only, Inc. v.

Calgon Carbon Corp., 560 F.3d 717, 722 (7th Cir. 2009)))(alteration omitted); see also, Reinbold

v. Morton Community Bank (In re Mid-Illini Hardwoods, LLC), 576 B.R. 598, 604 (Bankr. C.D.

Ill. 2017). The Sixth Circuit Court of Appeals has stated that the focus should be placed on the

“consideration received by the debtor,” and “not the value given by the transferee.” In re Shirley,

2011 WL 4054773, at *10, 2011 Bankr. LEXIS 3496, at *31 (citing Congrove v. McDonald's

Corp. (In re Congrove), 222 Fed. App’x. 450, 454 (6th Cir. 2007)). Furthermore, calculating

“reasonably equivalent value” is fact specific. In re Dirks, 407 B.R. 442, 2009 WL 103606, at *7,

2009 Bankr. LEXIS 47, at **22-23 (6th Cir. BAP 2009)(unpublished table opinion)(citing In re

Wilkinson, 196 Fed. App’x. 337, 341 (6th Cir. 2006)); see also, Onkyo Eur. Elecs. GMBH v. Glob.

Technovations, Inc. (In re Glob. Technovations), 694 F.3d 705, 719 (6th Cir. 2012)(citing In re

Wilkinson 196 Fed. App’x. at 341).17 When reasonably equivalent value is at issue, the question

is itself a factual one, and “[s]ummary judgment is rarely appropriate.” DeGirolamo v. Truck

World, Inc. (In re Laurel Valley Oil Co.), 2009 WL 1586602, at *5, 2009 Bankr. LEXIS 4631, at

*14 (Bankr. N.D. Ohio May 19, 2009)(citing In re Wilkinson, 196 Fed. App’x. at 341).

Defendant’s and Debtor’s Declarations create a genuine issue of material fact as to

reasonably equivalent value when viewed in the light most favorable to Defendant’s position,

because the factual allegations in Defendant’s and Debtor’s Declarations could result in the court

finding that the Debtor received reasonably equivalent value. Thus, there is a genuine issue of

material fact that precludes summary judgment.

v. “Insolvent”

Fifth, Plaintiff must establish that the Debtor was “insolvent” on the date the transfer was

made. The Bankruptcy Code defines insolvency with respect to an individual’s financial condition

in pertinent part as follows:

The term “insolvent” means—

(A) with reference to an entity other than a partnership and a municipality, financial

condition such that the sum of such entity’s debts is greater than all of such entity’s

property, at a fair valuation, exclusive of—

(i) property transferred, concealed, or removed with intent to hinder, delay or

17/ Before deciding In re Glob. Technovations, the Sixth Circuit Court of Appeals had “not squarely held that it

applies the clear-error standard to a bankruptcy court’s determination of reasonably equivalent value, but it ha[d] held

in an unpublished case that ‘whether [a debtor] received reasonably equivalent value [in a fraudulent-transfer case] is

a question of fact.’” Id. However, the Sixth Circuit Court of Appeals expressed their “agreement with the majority of

Circuits” in adopting the clearly erroneous standard of review because reasonably equivalent value of a transfer is a

question of fact. Id. (“The First, Second, Fourth, Fifth, and Eighth Circuits apply a clear-error standard.”(collecting

cases)(citations omitted)).

defraud such entity’s creditors; and

(ii) property that may be exempted from property of the estate under section 522 of

this title[.]

11 U.S.C. §101(32)(A)(i)-(ii)(emphasis added).

This statutory definition is known as the “balance sheet” approach. See, Limor v. Anderson

(In re Scarbrough), 2019 WL 1418698, at *5, 2019 Bankr. LEXIS 933, at *13 (6th Cir. BAP Mar.

28, 2019). Under this approach, a bankruptcy court makes a finding of the value of debtor’s

liabilities and assets in order to determine insolvency. Id.; see also, Shapiro v. Woodberry (In re

Woodberry), 621 B.R. 665, 671-72 (Bankr. E.D. Mich. 2020)(finding insolvency on a motion for

summary judgment after the trustee specifically pointed the court to evidence of assets and then

liabilities such as filings with the court, testimony at a §341 meeting, and proofs of claims filed in

the underlying bankruptcy case).

In Scarbrough, the Bankruptcy Appellate Panel for the Sixth Circuit Court of Appeals

reversed the bankruptcy court’s finding of insolvency when the plaintiff-trustee only “pointed to

the Debtor’s schedules to show that the Debtor was insolvent” at an earlier point in time. 2019 WL

1418698, at *6, 2019 Bankr. LEXIS 933, at *16. The Bankruptcy Appellate Panel stated that the

plaintiff-trustee did not “succeed in justifying summary judgment in her favor” because she did

not show “concretely that the Debtor was insolvent, or became insolvent” at the time of the

transfer. 2019 WL 1418698, at *7, 2019 Bankr. LEXIS 933, at **17-18.

“The Trustee cannot rely on evidence too far in the past or future, because such evidence

does not paint a clear picture regarding the Debtor at the time of the transfer.” Id. (citing Lisle v.

John Wiley & Sons, Inc. (In re Wilkinson), 196 F. App’x. 337, 340 (6th Cir. 2006); Hunter v.

Sylvester Material Co. (In re Turkeyfoot Concrete, Inc.), 198 B.R. 506 (Bankr. N.D. Ohio 1996)).

The Bankruptcy Appellate Panel went on to conclude that coupled “with the Trustee’s heightened

summary judgment obligations due to her burden of proof at trial, as well as the prohibition at the

summary judgment stage against drawing inferences in the Trustee’s favor,” insolvency is a

genuine issue of material fact that cannot be resolved on a motion for summary judgment based

on a debtor’s previous bankruptcy filings and the value received in exchange of an alleged

fraudulent transfer. Id.

Plaintiff asserts that under the theory of “retrojection” Debtor’s schedules establish

insolvency. Under the theory of retrojection, when a debtor is shown as insolvent at a date after

the transfer in question (typically the petition date), and the debtor’s financial condition did not

change during the period, insolvency relates back to the date of the transfer and insolvency is

inferred.

In Scarbough, the Bankruptcy Appellate Panel recognized that the trustee could not

succeed in showing insolvency based on retrojection in their motion for summary judgment

because in the “context of the motion, inferences should not have been drawn in [the trustee’s]

favor.” In re Scarbough, 2019 WL 1418698, at *6, 2019 Bankr. LEXIS 933, at *16. Although the

Bankruptcy Appellate Panel made clear that inferences cannot be established in favor of the

plaintiff-trustee on summary judgment, the Bankruptcy Appellate Panel did recognize the

following:

If the Trustee were presenting her case at trial, when the bankruptcy court

could permissibly draw inferences in her favor regarding, for example, the absence

of any change in the Debtor’s financial picture between the [transfer] and the

bankruptcy filing she may have been able to . . . extrapolate back in time to show

that the Debtor must have been insolvent on the transfer date.

Id. (citing Daneman v. Stanley (In re Stanley), 384 B.R. 788, 807-08 (Bankr. S.D. Ohio

2008)(explaining retrojection)).18 However, like in In re Scarbough, at the summary

18/ The Scarbough court held that the bankruptcy court did not err in finding insolvency based on a transfer that

judgment stage, the court cannot draw “inferences in the Trustee’s favor.” 2019 WL

1418698, at *7, 2019 Bankr. LEXIS 933, at *18. Instead, “the court must view the evidence

and draw all reasonable inference in favor of the non-moving party, . . .” Id. Accordingly,

Plaintiff has not met his burden at the summary judgment stage in establishing insolvency.

Moreover, if Debtor’s Declaration is accurate, [Adv. Doc. #32, p. 12, Declaration of

Christopher Martin], then Debtor has changed his story, with an explanation.19 The

credibility of that explanation is an issue for trial.

III. Claim Three.

Plaintiff seeks summary judgment on claim three of its Complaint. Section 544 of the

Bankruptcy Code grants a trustee, at the time of filing, the status of a hypothetical unsecured

creditor of the debtor, thus allowing the trustee to exercise those rights held by such creditor under

occurred forty-two days before debtor filed her petition.

[G]iven the absence of a serious challenge to the Cliffview Transfer on appeal, the Panel finds no

error in avoiding that transfer . . . she gave to the Debtor in April 2015. Even without a waiver of

the challenge, the proximity between the execution of the schedules and the Cliffview Transfer

likely warranted the bankruptcy court’s retrojection analysis as to that transfer.

Id. However, the Bankruptcy Appellate Panel made clear that fourteen months, “even at trial . . . would probably

result in ‘stretching retrojection analysis past its breaking point.’” Id. (citing Daneman v. Stanley (In re Stanley), 384

B.R. 788, 807 (Bankr. S.D. Ohio 2008)). Insolvency on one date “may form the basis for the inference that insolvency

existed on another date if the dates are relatively close in time and if no significant transactions occurred between the

two dates.” Id. (citing Stanley, 384 B.R. at 808 (nearly two years too long); Gold v. Laines (In re Laines), 352 B.R.

397, 402 n. 6 (Bankr. E.D. Va. 2005)(holding that January 4, 2004 schedules and statement of financial affairs could

not be used to infer insolvency as of the date of transfers that occurred on March 22, 2001, March 26, 2001 and

December 26, 2002); Dahar v. Jackson (In re Jackson), 318 B.R. 5, 16–17 (Bankr. W.D. Ky. 2004)(over two-year

gap was too long); Nicholls v. Jones (In re Jones), No. 02-12799, 2004 WL 826031, at *4 (Bankr. D. Colo. Feb. 5,

2004) (five-month gap was too long); Washington Bancorporation v. Hodges (In re Washington Bancorporation),

180 B.R. 330, 334 (Bankr. D.C. 1995) (six-month gap was too long); War Eagle Floats, Inc. v. Travis (In re War

Eagle Floats, Inc.), 104 B.R. 398, 400 (Bankr. E.D. Okla. 1989) (six-month gap was too long)). Here, the Transfer

was 150 days before Debtor’s Chapter 7 was filed, which is close to six months than it is to forty-two days. On

summary judgment, that appears to be too long a period to infer insolvency through retrojection.

19/ The information in a party’s schedules may or may not be admissible at trial, depending on a number of factors

not relevant at this stage of the proceedings.

applicable nonbankruptcy law.20

“Essentially, this provision permits the trustee to ‘stand in the shoes’ of an unsecured

creditor and assert causes of action under state fraudulent conveyance laws for the benefit of all

creditors.” Baumgart v. Vrooman (In re Vrooman), 2014 WL 3436292, at *5, 2014 Bankr. LEXIS

3042, at *8 (Bankr. N.D. Ohio Mar. 17, 2014)(quoting Lyon v. Eiseman (In re Forbes), 372 B.R.

321, 330 (6th Cir. BAP 2007)). The Bankruptcy Appellate Panel has previously noted that the

plain language of §544(b) contains four requirements:

1. A creditor,

2. holding an allowable unsecured claim; and

3. a transfer of an interest of the debtor in property,

4. that is voidable under applicable [state] law.

Belfance v. Bushey (In re Bushey), 210 B.R. 95, 100 (6th Cir. BAP 1997)(footnote omitted); In re

Walker, 566 B.R. 503, 540 (Bankr. E.D. Tenn. 2017)(citing Lyon v. Eiseman (In re Forbes), 372

B.R. 321, 330 (6th Cir. BAP 2007)(quoting In re Bushey)). After the first two elements are

satisfied “the inquiry shifts: Would this creditor have standing under applicable law to prosecute

the avoidance action brought by the trustee?” In re Bushey, 210 B.R. at 101.

The applicable state law is the Ohio Uniform Fraudulent Transfer Act, which provides:

A transfer made or an obligation incurred by a debtor is fraudulent as to a creditor

whose claim arose before the transfer was made or the obligation was incurred if

the debtor made the transfer or incurred the obligation without receiving a

reasonably equivalent value in exchange for the transfer or obligation and the

20/ Section 544(b)(1) provides in pertinent part:

[T]he trustee may avoid any transfer of an interest of the debtor in property or any obligation

incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim

that is allowable under section 502 of this title or that is not allowable only under section 502(e) of

this title.

11 U.S.C. §544(b)(1).

debtor was insolvent at that time or the debtor became insolvent as a result of the

transfer or obligation.

O.R.C. §1336.05(A)(1).21

The relevant Ohio law and 11 U.S.C. §548(a)(1)(B) are nearly identical and contain “the

same ‘reasonably equivalent value’ requirement.” Suhar v. Bruno (In re Neal), 541 Fed. App’x.

609, 612 n.4 (6th Cir. 2013)(citing Slone v. Dirks (In re Dirks), 407 B.R. 442, 2009 WL 103606,

at *7, 2009 Bankr. LEXIS 47, at **20-22 (6th Cir. BAP 2009)(unpublished table

opinion)(addressing the similarity between §548(a)(1)(B) and O.R.C. §1336.04(A)(2)(a) and (b)));

see also, Silagy v. Morris, 2015 WL 853499, at *13, 2015 U.S. Dist. LEXIS 23565, at *36 (N.D.

Ohio Feb. 26, 2015)(recognizing that “§548 and [O.R.C.] §1336.05 reveal[] that they are virtually

identical with respect to the elements that need to be proven.”).

Defendant’s and Debtor’s Declarations create a genuine issue of material fact as to

reasonably equivalent value when viewed in the light most favorable to Defendant’s position

because the “value,” such as lower monthly expenses and shorter commutes, could result in the

court finding that the Debtor received reasonably equivalent value. Thus, there is a genuine issue

of material fact that precludes summary judgment under Ohio law.

Because there is a genuine issue of material fact as to reasonably equivalent value, this

court does not need to resolve the difficult issue posed at this stage of the proceedings under Ohio’s

Uniform Fraudulent Transfer Act, which presumes insolvency for a “debtor who is generally not

paying his debts as they become due.”22

21/ It should be noted that Plaintiff refers to a constructively fraudulent transfer only under O.R.C. §1336.05(A) and

not a constructively fraudulent transfer under §1336.04. In re Hanson, 373 B.R. 522, 525 (Bankr. N.D. Ohio

2007)(“1336.05(A) . . . applies only to prepetition creditors.”).

22/ See, DeGirolamo v. McIntosh Oil Co. (In re Laurel Valley Oil Co.), 2012 WL 2603429, at *5, 2012 Bankr. LEXIS

3062, at *13 (Bankr. N.D. Ohio July 5, 2012)(discussing whether a debtor experiencing a cash flow shortage could

suggest a debtor is not paying its debts as they become due); Daneman v. Stanley (In re Stanley), 384 B.R. 788, 808

IV. The Individual Retirement Account.

The status of the approximately $21,000.00 that was transferred is also in dispute. The

parties disagree as to whether the funds remained exempt after Debtor’s withdrawal and transfer

of the $21,000.00 from his IRA to Defendant. For a number of reasons this issue does not affect

the court’s decision at this stage of these proceedings.

First, the court gave both parties an opportunity to file motions for summary judgment, but

Defendant did not file one on her own behalf. [Docs. ##20, 26]. While Plaintiff-Trustee filed a

Motion for Summary Judgment [Doc. #38], Defendant only filed an Objection to Motion for

Summary Judgment. [Doc. #32].

Second, Defendant’s “Objection” does not point the court to the specific parts of the record

that support the claimed exemption defense. See, Fed. R. Bankr. P. 7056; Fed. R. Civ .P. 56(c);

See e.g., Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)(“The failure to present any evidence

to counter a well-supported motion for summary judgment alone is grounds for granting the

motion.”).

Defendant argues that the Bankruptcy Code would require the withdrawal of the

$21,000.00 to “be put back in the IRA” [Doc. #32, pp. 6-7], because the money in the IRA was

(Bankr. S.D. Ohio 2008)(facts that the debtor “was not paying her debts to” some creditors but “generally was paying

her credit card debt and car payment” did not establish that the debtor “was not paying her debts as they became due”);

Slone v. Lassiter (In re Grove-Merritt), 406 B.R. 778, 796 (Bankr. S.D. Ohio 2009)(“Under the Ohio UFTA, ‘[a]

debtor is insolvent if the sum of the debts . . . is greater than all of the assets . . . at a fair valuation. A debtor who

generally is not paying his debts as they become due is presumed to be insolvent.’ Insolvency is essentially a balance-

sheet test.”(citation omitted)); Thermo Credit, LLC v. DCA Servs., Inc., 2017 WL 5128998, at *5, 2017 U.S. Dist.

LEXIS 171996, at *13 (S.D. Ohio Oct. 17, 2017), aff’d, 755 F. App’x 450 (6th Cir. 2018)(same); Reiser v. Hayslip

(In re Canyon Sys. Corp.), 343 B.R. 615, 649-52 (Bankr. S.D. Ohio 2006)(mentioning O.R.C. §1336.02(A)(2) but

finding insolvency on other grounds). But see Kovacs v. Berger (In re Berger), 2007 WL 2462646, at *7, 2007 Bankr.

LEXIS 2884 at **18-19 (Bankr. N.D. Ohio Aug. 27, 2007)(“Debtors testified that they were unable to pay their debts

at the time they filed their bankruptcy petition. Insolvency on the date of filing is, therefore, presumed and Defendant

offered no evidence to rebut this presumption.”); McLane Food Serv., Inc. v. Rao, 2012 WL 2073481, at *8, 2012

U.S. Dist. LEXIS 79573, at **24-26 (S.D. Ohio June 8, 2012)(concluding that an inference of insolvency is

appropriate because the debtor’s net worth two years before filing was negative $1.5 million or greater and when

debtor filed for relief, debtor had assets of $729,000.00 and liabilities exceeding $4 million).

exempt before it was withdrawn. The problem with this argument is that the Defendant is asserting

an exemption that the Debtor never claimed. [Doc. #1, Schedule C, pp. 16-17; Adv. Doc. #32, p.

13, Declaration of Christopher Martin, ¶8](“I did not list the IRA in my bankruptcy schedules

since the IRA was liquidated in September, 2018, and I filed almost 5 months later in February

2019.”).

Moreover, 11 U.S.C. §522(b) “permits a ‘debtor’ to exempt property from property of the

estate, but no provisions of the Bankruptcy Code provide standing for non-debtor third parties to

claim exemptions in property of the estate.” In re Cathcart, 203 B.R. 599, 604 (Bankr. E.D. Va.

1996)(emphasis removed)(citing cases, including Joelson v. Tiffin Sav. Bank (In re Everhart), 11

B.R. 770 (Bankr. N.D. Ohio 1981)(transferee of preferential payment lacked standing to assert

debtor’s entitlement to exemption of the transferred funds)). Defendant has cited no authority that

would permit her to claim an exemption on the Debtor’s behalf.

Further, it appears that Defendant is asking this court to, in effect, “do equity” in a manner

that would appear to conflict with specific statutory provisions and explicit mandates of the

Bankruptcy Code. See, Law v. Siegel, 571 U.S. 415, 420-21, 134 S. Ct. 1188, 1194-95 (2014).

Defendant asserts that the $21,000.00 would have remained exempt if Debtor never paid the funds:

“It would be astonishing if the Bankruptcy Code, which is one of equity, would support finding of

a fraudulent transfer under the facts of this case.” [Doc. #32, p. 6]. Because this is a plea for equity,

unsupported by reference to any statutory authority, Defendant’s request can be justified, if at all,

under §105(a) of the Bankruptcy Code.

However, bankruptcy courts are not free to employ §105(a) as a general license to do equity

as they perceive it. This is especially true where the relief that is requested conflicts with, or

contravenes, a specific provision of the Bankruptcy Code. Law, 571 U.S. at 422, 134 S. Ct at 1195.

Defendant’s argument appears to conflict with §522(g) of the Bankruptcy Code, which addresses

when a debtor is able to exempt property recovered by the trustee.23 A plain reading of §522(g)

precludes a debtor from exempting property recovered by the trustee when the debtor has

voluntarily transferred that property. See, Barbera v. Nathan (In re Barbera), 1996 WL 446821,

at *9, 1996 Bankr. LEXIS 965, at *25 (Bankr. E.D. Mich. 1996), summarily aff’d, 156 F.3d 1228

(6th Cir. 1998)(unpublished table opinion); In re Slane, 537 B.R. 864, 866 (Bankr. N.D. Ohio

2014)(“Section 522(g)(1) permits a debtor to claim an exemption in funds recovered by a trustee

if the transfer of the funds was not voluntary and the property was not concealed.”).

Here, there appears to be no dispute that Debtor’s Transfer was “voluntary” under

§522(g)(1). Debtor’s Declaration reflects that the Debtor voluntarily withdrew $21,000.00 from

his IRA, placed the monies in a bank account, and then transferred the funds directly to Defendant.

[Adv. Doc. #32, p. 13, Declaration of Christopher Martin, ¶¶6, 7].

It is also difficult to see how the Transfer of the funds was not “concealed” for purposes of

§522(g)(1). Debtor’s Statement of Financial Affairs Part 12 declares, under penalty of perjury,

that he has read the answers on the Statement of Financial Affairs and any attachments, and that

they are true and correct. [No. 19-30310, Doc. #1, p. 38]. Debtor’s Statement of Financial Affairs

reflects: Q. 13: “Within 2 years before you filed for bankruptcy, did you give any gifts with a total

23/ Section 522(g) provides in relevant part:

[T]he debtor may exempt under subsection (b) of this section property that the trustee recovers under

section 510(c)(2), 542, 543, 550, 551, or 553 of this title, to the extent that the debtor could have

exempted such property under subsection (b) of this section if such property had not been

transferred, if—

(1)(A) such transfer was not a voluntary transfer of such property by the debtor; and

(B) the debtor did not conceal such property[.]

Id.; Dickson v. Countrywide Home Loans (In re Dickson), 655 F.3d 585, 592 (6th Cir. 2011).

value of more than $600 per person?” The box for “No” was checked. Q. 18: “Within 2 years

before you filed for bankruptcy, did you sell, trade, or otherwise transfer any property to anyone,

other than property transferred in the ordinary course of your business or financial affairs?” The

box for “No” was checked. Q. 20: “Within 1 year before you filed for bankruptcy, were any

financial accounts or instruments held in your name, or for your benefit, closed . . . .? Include . . .

other financial accounts, . . . brokerage houses . . . pension funds….” The box for “No” was

checked.

Accordingly, summary judgment cannot be granted to Defendant on her “exemption”

argument.

THEREFORE, for the reasons stated above,

IT IS ORDERED that Plaintiff’s Motion for Summary Judgment be, and hereby is,

DENIED.