The opinion
WarCH 2f, 2U24
Clerk, U.S. Bankruptcy Court
Below is an opinion of the court.
Dawid) Ws Horde
DAVID W. HERCHER
U.S. Bankruptcy Judge
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF OREGON
In re
Consolidated Estate of Former Case No. 19-32600-dwh7
W2W Entities, formerly known as
Wall to Wall Tile & Stone, LLC MEMORANDUM DECISION
(Case No. 19-32600), Wall to Wall AFTER TRIAL!
Tile & Stone — Oregon LLC (Case
No. 19-32599), and Wall to Wall
Tile & Stone — Idaho LLC (Case
No. 19-32603),
Debtors.
Amy Mitchell, trustee, Adv. Proc. No. 22-03042-dwh
Plaintiff,
V.
Tyler Glenn Kruckenberg and
Angela Kruckenberg aka Angela
Santiago, husband and wife, and
1 This disposition is specific to this action. It may be cited for whatever
persuasive value it may have.
Page 1 -MEMORANDUM DECISION AFTER TRIAL
W2W Stone Holdings, LLC, a
Washington LLC,
Defendants.
I. Introduction
Amy Mitchell, the chapter 7 trustee of three related limited liability
company debtors, filed this action to avoid and recover payments debtors
made to or for the benefit of Tyler Kruckenberg and Angela Kruckenberg,
now known as Angela Santiago.
The complaint names a third defendant, W2W Stone Holdings, LLC.
Mitchell at first sought a judgment substantively consolidating W2W with
debtors, but she abandoned that claim before trial.2 So when I use the term
“defendants,” I refer to Kruckenberg and Santiago.
After trial, I determine that Mitchell may avoid and recover from
Kruckenberg payments to him challenged as preferential and a payment
made after the petition date without court approval. She may also avoid and
recover fraudulent transfers made to Kruckenberg, Santiago, and both while
debtors were insolvent, which was most of the four-year look-back period.
II. Background
A. Main bankruptcy cases
On July 16, 2019, voluntary chapter 11 petitions were filed by Wall to
Wall Tile & Stone, LLC, a Washington LLC,3 Wall to Wall Tile & Stone –
2 ECF No. 60 at 2.
3 Case No. 19-32600.
Oregon LLC, an Oregon LLC,4 and Wall to Wall Tile & Stone – Idaho LLC,
an Idaho LLC.5 I will refer to them by their states of formation, as the Idaho,
Oregon, and Washington debtors. Debtors operated out of locations in each of
the three states.6
On April 6, 2020, the cases were converted to chapter 7, and Mitchell was
appointed trustee.7 On July 21, 2020, the three cases were substantively
consolidated as of the petition date. All three debtors’ assets and liabilities
were “consolidated for the purposes of the bankruptcy cases.”8
B. Complaint
The complaint has six claims for relief. The first, under 11 U.S.C. § 547,
seeks to avoid from Kruckenberg allegedly preferential payments.9 The
second claim, under 11 U.S.C. § 544 and Oregon Revised Statutes § 95.240(1),
seeks to avoid allegedly fraudulent transfers made by debtors during the
four-year period before bankruptcy, beginning July 16, 2015.10 The third
claim, under 11 U.S.C. § 548, seeks to avoid the subset of allegedly
fraudulent transfers made during the two-year period before bankruptcy.11
The fourth claim, under 11 U.S.C. § 549, seeks to avoid and recover from
4 Case No. 19-32599.
5 Case No. 19-32603.
6 Case No. 19-32600 ECF No. 16 at 2 ¶ 10.
7 Case No. 19-32600 ECF No. 350.
8 Case No. 19-32600 ECF No. 413 at 2 ¶¶ 2–3.
9 ECF No. 1 at 18 ¶¶ 120–29.
10 ECF No. 1 at 18–19 ¶¶ 130–34.
11 ECF No. 1 at 19 ¶¶ 135–36.
Kruckenberg a postpetition transfer to him.12 The fifth claim, under
11 U.S.C. §§ 550 and 551, seeks to recover and preserve the avoided
transfers.13 The complaint requests that Kruckenberg and Santiago be held
jointly and severally liable for the fraudulent transfers. The sixth claim—
since abandoned by Mitchell—sought substantive consolidation of W2W into
debtors’ consolidated estate.14
C. Summary judgment
Before trial, Mitchell sought summary judgment for most of the amounts
she seeks in her complaint. On the first claim, she sought summary judgment
against Kruckenberg for the allegedly preferential payments, which total
$60,000.15 On the second and third claims, for fraudulent-transfer avoidance,
she sought partial summary judgment for the payments in and after 2016.16
On the fourth claim, she sought summary judgment avoiding the postpetition
transfer of $21,391.56.17 On the fifth claim, she sought recovery and
preservation of the avoided transfers.18
I granted Mitchell summary judgment on one of two preference payments
and the postpetition payment. I granted her partial summary judgment that
(1) the second preference payment had been made and (2) all the alleged
12 ECF No. 1 at 19 ¶ 137.
13 ECF No. 1 at 20 ¶¶ 142–46.
14 ECF No. 1 at 20–21; ECF No. 60 at 2.
15 ECF No. 31 at 2.
16 ECF No. 31 at 2.
17 ECF No. 31 at 2.
18 ECF No. 31 at 2.
fraudulent transfers had been made and that most had been for less than
reasonably equivalent value. But I did not determine that debtors had been
insolvent.
III. Discussion
A. Statutory jurisdiction and constitutional authority
The district court has jurisdiction over this action, a civil proceeding
arising in this case, under 28 U.S.C. § 1334(b). The district court has referred
to this court all bankruptcy cases and proceedings in this district.19 This
action is a core proceeding 28 U.S.C. § 157(b)(2)(A), (F), (H), and (O), which
this court may hear and determine.20
In the complaint, Mitchell consented to entry of final orders or judgment
by this court.21 In a stipulated amended scheduling order, Mitchell and
defendants consented to “this Court’s jurisdiction under LBR 7012-1.” Under
that rule (which has since been repealed), a responsive pleader’s failure to
timely state whether the pleader consents to the bankruptcy judge’s entry of
final orders or judgment “waives any objection to the judge’s entry of final
orders or judgment.” Because both defendants agreed to the scheduling order,
I will treat their consent as affirmative.
19 LR 2100-2(a)(1).
20 28 U.S.C. § 157(b)(1).
21 ECF No. 1 at 2 ¶ 5.
B. Trial evidence
In the scheduling order, I ordered the parties to file exhibit lists by
November 3, 2023.22 I set a final pretrial conference for November 1323 and
ordered that authenticity or hearsay objections to exhibits be made at or
before that conference and that, absent objection, “the exhibits will be
deemed admitted at trial.”24
Mitchell timely filed her exhibit list,25 and I held the final pretrial
conference as scheduled. Kruckenberg filed his witness list on November 21.26
I granted Mitchell’s November 20 motion to exclude documentary evidence
offered by either defendant “that was not disclosed in an exhibit . . . list
submitted [by] the offering party,” unless offered for impeachment.27 Neither
defendant objected to Mitchell’s exhibits. Under the scheduling order and the
order on Mitchell’s motion, her filed exhibits were admitted for all purposes,
and Kruckenberg’s were admitted for impeachment.
With Kruckenberg’s consent, I granted Mitchell’s motion to admit
Santiago’s declaration in evidence as her direct testimony and to permit her
to testify by telephone.28
I heard testimony from Mitchell and defendants.
22 ECF No. 29 at 2 ¶ G.a.
23 ECF No. 29 at 4 ¶ K.
24 ECF No. 29 at 4 ¶ M.
25 ECF No. 48.
26 ECF No. 72.
27 ECF No. 75 at 2 ¶ 1.
28 ECF No. 70.
C. Insolvency
The insolvency of a debtor-transferor is an element of claims to (1) avoid a
constructively fraudulent transfer under 544(b) and 95.240(1) or under 548
and (2) avoid an insider preference under 547.29 For each transfer, the trustee
must prove that the debtor was insolvent when the transfer was made or that
the transfer rendered the debtor insolvent.
1. Substantive consolidation
(a) Summary judgment
I determined for summary judgment that debtors’ main-case substantive
consolidation had not determined that they should be treated as one entity
other than at and after the petition date.30 And the evidence Mitchell
submitted on summary judgment did not demonstrate that the debtors,
treated as separate entities, were each insolvent throughout the look-back
period.31 I made that point for the 2016 and 2017 consolidated financial
statement, but it applies equally to the 2018 and 2019 consolidated tax
returns.
Because Mitchell had not shown which debtor had made each payment at
issue, the summary-judgment record did not support a determination that
any of the payments—including the allegedly preferential payment outside
the 90-day period—was made by an insolvent debtor.
29 11 U.S.C. §§ 548(a)(1)(B)(ii)(I), 547(b)(3).
30 ECF No. 44 at 10–11.
31 ECF No. 44 at 19.
(b) Trial
At trial, Mitchell offered evidence that the three debtors should, at least
from 2016, be treated as a single entity. She testified that management did
not respect debtors’ separate identities, and debtors kept a single set of books
and records for the Washington debtor and none for the other two debtors.
Mitchell described information in debtors’ schedules and SoFAs—all
signed by Kruckenberg. Specifically, she said that—
• the first page of the schedules states that the assets are owned
entirely by the Washington debtor and that the Idaho and Oregon
debtors have no assets,
• the SoFAs state that the Idaho and Oregon debtors have no books
or records, and “everything was run through the main entity,” the
Washington debtor,
• only three creditors are listed as creditors for all three debtors, and
all other creditors are listed only as creditors of the Washington
debtor.
• Kruckenberg said that “there were no accounts,” which I took to
mean bank accounts, other than accounts in the name of the
Washington debtor.
According to Mitchell, other than creditors Wells Fargo Bank, Baffco
Enterprises, LLC, and Cosmos Granite, for which the three debtors have joint
and several liability, all other creditors have claims only against the
Washington debtor. Debtors’ inventory was tracked by its physical location,
but none was recorded on debtors’ books as owned by the Idaho or Oregon
debtors.
Mitchell asked debtors’ lawyers for debtors’ operating agreements, but the
lawyers did not produce any and told her they thought there were none.
All payments to creditors were made by the Washington debtor.
Defendants did not offer any specific, substantial evidence that debtors
should not be treated as a single entity.
I find that the Washington debtor was the payor of each of the payments
and that it owned all assets that debtors treated for any purpose, including
financial or tax reporting, as owned by the Idaho and Oregon debtors. When I
refer below to “debtors,” I mean the Washington debtor with those attributes.
(c) State law applicable to 544(b) claim
When a federal court must determine which state's law applies to an issue
governed by state law, the court applies the choice-of-law rules of the forum
state.32 Because this court sits in Oregon, it applies Oregon's choice-of-law
rules. When an Oregon court addresses a choice-of-law problem, the
threshold question is whether different states’ laws conflict with each other.33
If they do not, there is a “false conflict,” and Oregon law applies.34 The
proponent of the law of a state other than Oregon must identify material
differences between the applicable law of Oregon and of the other state.35
Here, no party urged the application of law of any state other than Oregon.
Mitchell’s second claim for relief seeks avoidance of fraudulent transfers
under 544(b). Section 544(b)(1) permits the trustee to avoid a property
32 Kohlrautz v. Oilmen Participation Corp., 441 F.3d 827, 833 (9th Cir. 2006).
33 Machado-Miller v. Mersereau & Shannon, LLP, 43 P.3d 1207, 1209 (Or.
App. 2002), citing Lilienthal v. Kaufman, 395 P.2d 543 (Or. 1964).
34 Machado-Miller, 43 P.3d at 1209, quoting Angelini v. Delaney, 966 P.2d
223, 227 (Or. App. 1998).
35 Waller v. Auto-Owners Ins. Co., 26 P.3d 845, 848 (Or. App. 2001).
transfer voidable “under applicable law” by an unsecured creditor. In the
complaint, she alleges that the law applicable to her 544(b) claim is that of
Oregon.36 For summary judgment, I accepted her uncontradicted argument
that, even though there was some uncertainty whether the relevant law is
that of Idaho, Oregon, or Washington, the relevant law would not be
materially different than that of Oregon.37
I adhere to that conclusion. Each of the three states where debtors were
formed has enacted a version of the Uniform Voidable Transactions Act,
replacing enactments of the Uniform Fraudulent Transfers Act. Both acts
were promulgated by the Uniform Law Commission. Idaho enacted the UFTA
in 198738 and replaced it with the UVTA in 2015, effective on July 1, 2015,39
before the four-year look-back period began. Oregon enacted the UFTA in
198540 and replaced it with the UVTA in 2023, effective on January 1, 2024,41
after the petition date. Washington enacted the UFTA in 198742 and replaced
it with the UVTA in 2017, effective on July 23, 2017.43 So the UVTA enacted
in Idaho and the UFTA enacted in Oregon were in effect during the entire
four-year look-back period, the UFTA enacted in Washington was in effect for
36 ECF No. 1 at 19 ¶ 134.
37 ECF No. 44 at 14.
38 1987 Idaho Sess. Laws ch. 202.
39 2015 Idaho Sess. Laws 1289.
40 1985 Or. Laws ch. 664.
41 2023 Or. Laws ch. 83.
42 1987 Wash. Sess. Laws ch. 444.
43 2017 Wash. Sess. Laws ch. 57.
roughly the first year and a half of that period, and the UVTA enacted in
Washington was in effect for roughly the final two and one-half years.
In both uniform acts, section 5(a) permits a creditor to avoid a transfer
made after the claim arose if the debtor did not receive reasonably equivalent
value for the transfer, and the debtor was insolvent at the time or was
rendered insolvent by the transfer.44 Section 2(a) of both acts defines
“insolvent” slightly differently. Under the UFTA, a debtor is insolvent if the
sum of the debtor’s debtors exceeds all the debtor’s assets at a fair
valuation.45 That definition derived from the similar Bankruptcy Code
definition.46 Under the UVTA, a debtor is insolvent if, at a fair valuation, the
sum of the debtor’s debts exceeds the sum of the debtor’s assets.47
Section 4(a)(1) permits avoidance of a transfer made with actual intent to
hinder, delay, or defraud any creditor of the debtor.48 Section 9(a)
extinguishes both a claim to avoid both a constructively fraudulent transfer
and an actual-intent transfer unless an action is brought within four years
after the transfer was made.49
44 Idaho Code § 55-914(1) (2023); Or. Rev. Stat. § 95.240(1) (2019); Wash. Rev.
Code § 19.40.051(a) (2016); Wash. Rev. Code § 19.40.051(1) (2022).
45 Or. Rev. Stat. § 95.210(1) (2019); Wash. Rev. Code § 19.40.021(a) (2016).
46 11 U.S.C. § 101(32); UFTA § 2 Comment (1).
47 Idaho Code § 55-911(1) (2023); Wash. Rev. Code § 19.40.021(1) (2022).
48 Idaho Code § 55-913(1)(a) (2023); Or. Rev. Stat. § 95.230(1)(a) (2019);
Wash. Rev. Code § 19.40.041(a)(1) (2016); Wash. Rev. Code § 19.40.041(1)(a)
(2022).
49 Idaho Code § 55-918(a) (2023); Or. Rev. Stat. § 95.280(a) (2019); Wash. Rev.
Code § 19.40.091(a) (2016); Wash. Rev. Code § 19.40.091(1) (2022).
There is one nominal difference between the UFTA and the UVTA
provisions at issue. Under 2(a) of the UVTA, but not the UFTA, the “fair
valuation” requirement applies not only to assets but also to debts. But I am
unaware of any principle that, under the UFTA, debts should be quantified
other than at a “fair valuation.” So there is no material difference, and thus
no actual conflict, among the laws of Idaho, Oregon, and Washington
applicable to the 544(b) claim, there is a “false conflict,” and Oregon law
applies.
2. Insolvency in 2016 and 2017
To demonstrate insolvency in 2016 and 2017, both for summary judgment
and at trial, Mitchell relied on the balance sheet in debtors’ 2016 and 2017
financial statements.50 The financial statements are a single document
containing several statements of debtors’ financial condition for both years,
including a balance sheet and accompanying notes. For clarity, I will refer to
the document in the singular as the “financial statement.”
The financial statement is for “Wall to Wall Tile and Stone, LLC” (the
Washington debtor) “and Subsidiaries,” and it is entitled “Consolidated
Financial Statements.” Debtors’ reasons for consolidation appear in a
statement note.52 The statement uses the singular term “company” to refer to
the Washington debtor, consolidated with the Idaho and Oregon debtors.
50 ECF No. 33 at 12 ¶ 58, Ex. 8; ECF No. 73-2.
52 ECF No. 33 at 12 ¶ 58, Ex. 8 at 9 n.1, Principles of consolidation; ECF
No. 73-2 at 9 n. 1, Principles of consolidation.
Consistent with that usage in the statement, as well as my ruling in part
III.C.1(b) above that the Washington debtor made all the payments and
owned all assets treated as owned by the Idaho and Oregon debtors, I will use
the terms “debtors,” “Washington debtor,” and “company” interchangeably.
Debtors’ balance sheets show solvency of $755,619 on December 31, 2016,
and $1,850,874 on December 31, 2017.54
(a) Evidence of insolvency in 2016 and 2017
At trial, Mitchell proposed several adjustments to the balance sheets,
which if accepted would flip the nominal solvency for each date to insolvency.
(1) Accounts receivable, net
Mitchell first addressed the balance-sheet asset “accounts receivable, net.”
Net accounts receivable is accounts receivable minus retainages and
allowance for doubtful accounts. Accounts receivable “are stated at the
invoiced amount” without interest. The “Company provides an allowance for
doubtful collections which is based upon a review of outstanding receivables,
historical collection information, existing economic conditions and the specific
circumstances of the Company’s customers.” And “[d]elinquent receivables”—
those past due more than 90 days—“are written off based on individual credit
evaluation of the customer after all collection avenues have been
exhausted.”55 Net accounts receivable is the sum of accounts receivable and
retainages minus an “[a]llowance for doubtful accounts.”
54 ECF No. 73-2 at 3, 5.
55 ECF No. 73-2 at 10 n.1 Accounts receivable.
The sum of accounts receivable and retainages was $2,613,437 for 2016
and $2,710,159 for 2017. The doubtful-accounts allowance was $50,000 for
2016 and $71,000 for 2017.
According to Mitchell, “[i]t doesn’t look like they had been necessarily
writing [accounts receivable] off. . . . If you’re looking at it from a perspective
of having to collect those funds and reduce them to money, I’d think you’d
have to at least consider a 10 percent reduction in that.” She said that “it’s
hard to say how much of it was on the older side,” and when debtors filed
their petitions, “they had some accounts that were significantly past due, like
at the time of conversion.”
(2) Inventories, net
The second asset Mitchell addressed is “Inventories, net.” Inventory is
booked at “the lower of cost or net realizable value.” Net inventories is the
sum of hard-surface slabs, sinks, and supplies, minus the inventory reserve.
Inventory reserves “are established to reflect situations in which cost of the
inventory, principally stone slab remnants, is not expected to be recovered.”
In evaluating whether inventory reserves are adequate to stated inventory
book value at the lower of cost or net realizable value, “management
considers such factors as the condition of the inventory on hand, estimated
waste factors, estimated time to sell the inventory and current and expected
market conditions.” The estimates supporting the reserve calculation can
change “as the condition of remnant inventories change and as consumer
preferences change.”56
Inventory was booked at $3,730,250 for 2016 and $10,326,368 for 2017.
The reserve was $450,000 for 2016 and $377,000 for 2017.
According to Mitchell, debtors “had a large, large inventory of granite,”
even though, as Kruckenberg told her, “people had moved away from granite
as their primary interest in countertops and moved towards quartz.” She said
that the inventory reserve was “fairly small.” Debtors “were not taking into
account the dramatically reduced value for those remnants.” It “doesn’t
appear that there has been any meaningful reduction to represent the items
that cannot be of realized value, . . . whether that’s because they’re remnants
or . . . not a popular style anymore . . ..” “[T]hey’re valuing remnants the same
as they’re valuing the whole slab. . . .. [W]hatever . . . dollar per square foot
that they would apply to the entire slab, they’re applying that same amount
based on the dollars per square foot to the remnants.” She said that “[i]n
terms of liquidation, . . . you’re looking at least at a 10 percent cost to sell it
. . .. [I]f you’re going to look at the fair-market value, if we were going to
liquidate this business at these points in time, I’d say you probably take off at
least 25 to 30 percent of that stated value there in order to get to where you
think you could recover funds.”
56 ECF No. 73-2 at 10 n.1 Inventories.
During Kruckenberg’s cross-examination of Mitchell, he asked whether
debtors would sell inventory “at cost or would it put a markup on it.” She
answered, “[w]e’re talking about a liquidation analysis. We’re not talking
about the sales process. . . . We’re talking about a liquidation value, not what
would the company be able to or have to do to make this into more money.”
(3) Property and equipment, net
The third asset that Mitchell addressed is “Property and equipment, net.”
Property and equipment “are stated at cost, less accumulated depreciation
and amortization.”57 Net property and equipment is the sum of the cost of
equipment, vehicles, leasehold improvements, displays and samples,
furniture and fixtures, and computers and software, minus accumulated
depreciation and amortization. Property and equipment was booked at
$8,010,447 for 2016 and $9,377,588 for 2017. Accumulated depreciation and
amortization was $2,908,942 for 2016 and $4,599,202.58 The statement does
not allocate the depreciation and amortization amounts among the property
and equipment components.
Mitchell separately addressed the values of each component of property
and equipment: equipment, vehicles, leasehold improvements, displays and
samples, furniture and fixtures, and computers and software. The equipment
was mostly built-in and customized for the space, so it could not easily be
moved. Most of the equipment for the Washington debtor had been bought in
57 ECF No. 73-2 at 11 n.1, Property and equipment.
58 ECF No. 73-2 at 14 n.5, Property and equipment.
2012 and 2013, and the other debtors bought equipment in 2016 and 2017.
“Given the age of the equipment” and her other observations, she thought
“you could take off 50 percent for the equipment . . . based on the purchase
cost.” Equipment was booked at $5,086,938 for 2016 and $5,853,629 for 2017.
Vehicles were booked at $1,410,153 for 2016 and $1,486,450 for 2017.
Mitchell said debtors “had a lot of older trucks” that “take some beating.” She
thought “you could easily take off another 50 percent for the vehicles based
off of their cost value.”
Leasehold improvements are the cost of capital expenditures on leased
locations, such as electrical upgrades to allow debtors to run their heavy
equipment and putting in flooring and glass doors in their showrooms.
Leasehold improvements were booked at $974,782 for 2016 and $1,109,959
for 2017. Because the leasehold improvements “are going to stay in the
building” and “would not have any liquidation value,” she “would discount
that entirely in terms of liquidation.”
Displays and samples are product samples that debtors provided in their
showrooms. Displays and samples were booked at $293,737 for 2016 and
$650,637 for 2017. Mitchell said that “[a] new company,” presumably
meaning one buying debtors’ assets, “would probably get new samples from
the vendor.” She “would reduce the displays and samples by 75 percent to be
conservative.”
Furniture and fixtures are booked at $150,796 for 2016 and $175,459 for
2017. Mitchell said that debtors’ furniture and fixtures were mostly office
equipment and showroom furnishings, such as couches and rugs. Used office
equipment has “very, very limited value . . . regardless of how nice it is or
how new it is.” She “would take at least 50 percent off . . . from cost.”
Computers and software were booked at $94,041 for 2016 and $101,454
for 2017. Mitchell said that computers and software includes the capitalized
cost of nontransferable software, which would have “no liquidation value.”
Used computers have no “real value from a liquidation standpoint,” and she
“would not give any value to the computers.
(4) Liabilities
Debtors’ current liabilities include accounts payable, which were
$4,877,397 for 2016 and $7,954,867 for 2017. And their other liabilities
include a “legal contingency” of $1,500,000 for 2017, but none for 2016.59
Debtors explained the legal contingency in a financial statement note
describing their dispute with “a supplier” of hard-surface countertop slabs.
Mitchell identified the supplier as Cosmos. As part of that dispute, “[i]n June
2017, the Company ceased paying [Cosmos’s] invoices” until the dispute could
be resolved. Cosmos sued debtors for unpaid invoices totaling $5.1 million as
of December 31, 2017. Debtors asserted contract-breach counterclaims
against Cosmos, requesting damages exceeding $5.2 million.60
59 ECF No. 73-2 at 5.
60 ECF No. 73-2 at 17 n.8.
According to Mitchell, in 2016, debtors were still making payments,
ordering actively, and paying Cosmos. There are journal entries for the final
two quarters of 2016 with a reduction of $68,000 each quarter, saying that
the adjustment is “for failure to meet price guaranty.” She also said that
debtors made a 2017 journal entry “and wiped out just about $3.1 million of
the account payable to Cosmos.” Debtors’ dispute with Cosmos ended in
October 2018 with debtors’ agreement to pay Cosmos $5.5 million in
installments. Debtors breached the installment obligation to Cosmos,
resulting in entry of a $5.5 million judgment by confession shortly before
bankruptcy.61
For those reasons, Mitchell said that the payable reductions of $136,000
in 2016 and $3.1 million in 2017 were unwarranted and should be reversed.
(b) Mitchell's proposed adjustments to 2016 and
2017 balance sheet
The closing argument on behalf of Mitchell included the statement that
the effect of her proposed asset reductions would be to reduce the 2016 total
assets from “$12.4 million” to “$9.5, $9.6 million.” The 2016 asset total is
$12,399,836, which corresponds to the $12.4 million figure. I infer from
Mitchell’s testimony and closing argument that the specific asset
adjustments she urges for 2016 and 2017 would—
• reduce net accounts receivable by the difference between 10 percent
of gross accounts receivable ($258,504 for 2016 and $270,555 for
2017) and the allowance for doubtful accounts ($50,000 for 2016
61 ECF No. 73-19.
and $71,000 for 2017), or a net of $208,504 for 2016 and $199,555
for 2017),
• reduce gross inventory (inventory without the inventory reserve) by
25 percent, or $820,065 for 2016 and $2,487,342 for 2017, but leave
in place the reserve ($450,000 for 2016 and $377,000 for 2017),
• reduce equipment by 50 percent, or $2,543,469 for 2016 and
$2,926,815 for 2017,
• reduce vehicles by 50 percent, or $705,077 for 2016 and $743,225
for 2017,
• reduce leasehold improvements by 100 percent, or $974,782 for
2016 and $1,109,959 for 2017,
• reduce displays and samples by 75 percent, or $220,303 for 2016
and $487,978 for 2017,
• reduce computers and software by 100 percent, or $94,041 for 2016
and $101,454 for 2017, and
• leave in place the property and equipment depreciation and
amortization, $2,908,942 for 2016 and $4,599,202 for 2017.
The effect of those reductions would be to reduce assets to $9,667,167 for
2016 and $14,886,473 for 2017. The 2016 figure roughly corresponds to the
“$9.5 million or $9.6 million” mentioned in closing argument.
(c) Analysis of proposed adjustments
How the “fair value” of property is determined when calculating solvency
depends on the context in which the valuation is made. In the Ninth Circuit’s
1999 decision in Wolkowitz v. Am. Research Corp. (In re DAK Indus., Inc.),
the court held that, before valuing an asset, “the [trial] court must determine
whether a debtor was a ‘going concern’ or was ‘on its deathbed.’”62 ’ If the
62 170 F.3d 1197, 1199 (9th Cir. 1999).
debtor was a going concern, “the court will determine the fair market price of
the debtor's assets as if they had been sold as a unit, in a prudent manner,
and within a reasonable time.” But if “the company was on its deathbed, i.e.,
only nominally extant, then the court will determine the liquidation value of
the assets, such as a price expected at a foreclosure sale.”63
Here, Mitchell offered no evidence that, at any time before bankruptcy,
debtors were on their deathbed or that bankruptcy was clearly imminent. So
here, the fair valuation of debtors’ assets is their value not in liquidation but
on a going-concern basis, and her proposed asset reductions to reflect
liquidation values do not reflect the fair valuation of those assets.
I accept Mitchell’s justifications for her proposed reductions for “accounts
receivable, net,” and “inventories, net.” Debtors failed to address uncollectible
accounts. In explaining her proposed reduction in inventory, Mitchell did say
“we’re talking about a liquidation value,” but her primary reason was debtors’
failure to account for the proper value of remnants and out-of-fashion granite.
The reductions of those assets are warranted without relying on their
liquidation value.
But Mitchell’s justifications for her proposed reductions to the components
of “property and equipment, net” are either insufficiently explained or based
on those assets’ liquidation value. She said that equipment and leasehold
improvements were unsalable because they were built-in and customized for
63 DAK, 170 F.3d at 1199 n.3.
the leased space and thus could not be removed easily, if at all. And she said
that displays and samples, furniture and fixtures, and computers and
software had little or no value that debtors could have obtained by resale.
But she did not explain why debtors’ ownership of those items, even if
unsalable, did not provide value to debtors by saving them the expense of
replacing those items over their remaining useful life. To discount those
items because they cannot be sold is another way of assigning them a
liquidation value.
Mitchell’s justifications for reducing equipment and vehicles includes the
items’ age and condition. But she did not explain why the amount of booked
depreciation does not account for those items’ physical depreciation.
Finally, Mitchell expressly justified her proposed reductions of leasehold
improvements and computers and software as necessary to reflect liquidation
value.
I accept Mitchell’s testimony that debtors’ accounts payable are
understated and should be increased by $136,000 for 2016 and $3.1 million
for 2017.
The balance sheets in debtors’ 2016 and 2017 tax returns, which are
among Mitchell’s trial exhibits64 but not relied on by any party, do not change
my views above of debtors’ financial condition based on the financial
statement. The values assigned to asset categories in the tax balance sheets
64 ECF No. 73-2.
cannot be reconciled with those in the financial statement. And the tax
balance sheets show debtors having positive “shareholders’ equity” at the
beginning and end of both years.65
Accepting Mitchell’s proposed reductions in the balance-sheet accounts
receivable and inventory and her proposed increase in accounts payable,
debtors’ adjusted net worth is reduced by $1,164,569 for 2016 and $5,786,897
for 2017, resulting in net worth of negative $408,950 for 2016 and negative
$3,936,023 for 2017.
(d) Debtors’ financial condition throughout 2016
and 2017
Although a balance sheet is a “snapshot” of assets and liabilities at the
end of a financial period,66 I take Mitchell to suggest that, based on the
adjusted balance sheet showing insolvency on the last days of each of 2016
and 2017, I should infer insolvency for each day of those years.
In avoidance actions, courts have inferred a debtor’s financial condition
based on evidence as of a date other than the date of a challenged transfer. In
1976, the Ninth Circuit held in Misty Management Corp. v. Lockwood67 that
inferring a debtor’s insolvency on a transfer date based on evidence of the
debtor’s later condition—which it called “retrojection”—was “permissible
insofar as care is taken to account for all changes in financial position
between the date of the financial statement and the date upon which
65 ECF Nos. 73-6 at 4, 73-8 at 4.
66 Bolt v. Merrimack Pharms, Inc., 503 F.3d 913, 914 (9th Cir. 2007).
67 539 F.2d 1205, 1213 (9th Cir. 1976).
insolvency is in question.” For that proposition, the Ninth Circuit cited a 1971
First Circuit decision,68 which in turn cited a 1964 decision of that court,
Hassan v. Middlesex County National Bank.69 Under Hassan, before a court
may rely on retrojection, “the trustee must be able to show the absence of any
substantial or radical changes in the assets or liabilities of the bankrupt
between the retrojection dates.” That holding from Hassan was quoted with
approval in a 1967 Fifth Circuit decision describing retrojection as “a back-up
method” of insolvency proof.70
Reported appellate decisions addressing retrojection have not prescribed
general rules about when retrojection is appropriate. Misty Management is an
example of a decision affirming a trial court’s application of retrojection; the
Ninth Circuit relied in part on the balance sheet showing insolvency that the
debtor filed with its bankruptcy petition six months after the challenged
transfer.71 By contrast, in the Sixth Circuit’s 1981 decision in John Ownbey
Co., Inc. v. C.I.R.,72 a fraudulent-transfer avoidance action, the court found
reversible error in a trial court’s assumption that a debtor was insolvent
“many months” before the date as of which the plaintiff sought to prove
68 Braunstein v. Massachusetts Bank & Tr. Co., 443 F.2d 1281 (1st Cir.
1971).
69 333 F.2d 838, 840–41 (1st Cir. 1964).
70 Haynes & Hubbard, Inc. v. Stewart, 387 F.2d 906, 907 n.1 (5th Cir. 1967).
71 Misty Management, 539 F.2d at 1213.
72 645 F.2d 540, 546 (6th Cir. 1981).
insolvency, “especially . . . where, as here, the transferor throughout the year
was a going concern whose assets and liabilities changed as it did business.”
Here, based on debtors’ insolvency at the end of both 2016 and 2017, I
infer that they were insolvent from December 31, 2016, through
December 31, 2017.
But whether debtors were insolvent before December 31, 2016, is a
different question. The 2016 payments Mitchell seeks to avoid were made
throughout the year, beginning January 1. These payees were paid before
December 31:
• Farmers was paid from January 25 through December 2273
• Kruckenberg was paid from January 1 through December 3074
• Personal-expense vendors were paid from January 12 through
December 2375
• Pro Caliber was paid from March 17 through December 2776
• Santiago (nominally) was paid from February 5 through
December 3077
• Tax agencies were paid from April 13 through November 3078
To find that all the 2016 payments were made while debtors were
insolvent, I would need to conclude that debtors were insolvent from and
after January 1. But I have no evidence of debtors’ insolvency before
73 ECF No. 73-11.
74 ECF No. 73-15.
75 ECF No. 73-12.
76 ECF No. 73-10.
77 ECF No. 73-13.
78 ECF No. 73-16.
December 31, 2016, and I have affirmative evidence of their solvency on
January 1 in the form of the financial statement note that debtors’ “members’
equity” (the amount of nominal solvency) was then $1,873,72279–more than
twice the nominal net worth amount at the end of 2016 and more than the
net worth reduction of $1,164,569 that I have accepted for December 31.
If the only 2016 payments at issue had been made on December 30, or
even throughout December, whether I should “retroject” insolvency from
December 31 would be a close question. But here the payments were made
throughout 2016; I have evidence of insolvency on January 1; and I have no
evidence of when during that year they became insolvent. Nor do I have
evidence that debtors were not, in the words of John Ownbey, “going
concern[s] whose assets and liabilities changed as [they] did business.” The
trial record here lacks evidence that, in the words of Misty Management,
“care [has been] taken to account for all changes in financial position between
the date of the financial statement and the date upon which insolvency is in
question” or that, in the words of Hassan, there were no “substantial or
radical changes in the assets or liabilities of” debtors throughout 2016. I am
left with no principled basis for drawing the insolvency line anywhere before
December 31.
79 ECF No. 73-2 at 7.
I conclude that debtors were insolvent on and after December 31, 2016,
but not before. Because none of the payments was on that date, for
convenience I will describe the period of insolvency as from and after 2017.
3. Insolvency in 2018 and 2019
Mitchell testified that for 2018 and 2019, “debtors’ own financial records
show insolvency on the face.” Based on that testimony and evidence of
insolvency at the end of 2017, I infer that debtors were insolvent during 2018
and 2019.
D. Fraudulent transfers
1. Constructively fraudulent transfers
Mitchell sought summary judgment that payments made to or for the
benefit of defendants are avoidable and recoverable as fraudulent transfers.
Although the complaint seeks recovery of payments made throughout the
four-year period, Mitchell sought, both on summary judgment and at trial, to
recover only the subset of payments made in and after 2016.
(a) Transfers for which lack of reasonably
equivalent value was established at summary
judgment
I determined at summary judgment that debtors did not receive
reasonably equivalent—or any—value for payments to or for the benefit of
Kruckenberg totaling $579,088.09 and to or for the benefit of both defendants
totaling $933,211.86.80 As Mitchell correctly noted in her trial brief,81 I
80 ECF No. 44 at 15–16.
81 ECF No. 60 at 4 n.1.
mistakenly totaled the amounts paid to or for the benefit of Kruckenberg
alone; the correct sum is $579,088.09.
Because I have found that debtors were insolvent in and after 2017, the
payments avoidable as constructively fraudulent are those made in that
period. For some payments made during insolvency, the trial record includes
lists of the dates and amounts of payments during the insolvency period.
Those are the payments to Farmers Insurance,82 Kruckenberg,83 Pro Caliber
Motorsports,84 and (nominally) Santiago.85 Those lists permit calculation of
total payments to those payees during the insolvency period.
(1) Payments to or for the benefit of
Kruckenberg alone
For payments to Farmers and Pro Caliber, the complaint seeks avoidance
of amounts paid during the entire look-back period, net of amounts Mitchell
received from those payees in settlement of her avoidance and recovery
claims against them for the same payments.86 At summary judgment, she
sought recovery of payments in and after 2016, which is a subset of payments
at issue in the complaint. There, she acknowledged that her recovery should
be net of the same settlement payments alleged in the complaint. I agreed
with her, and found as the basis for my ruling, that as to Farmers, debtors
paid $21,598.58, she received in settlement $17,619, and her net claim is
82 ECF No. 73-11.
83 ECF No. 73-5.
84 ECF No. 73-10.
85 ECF No. 73-4.
86 ECF No. 1 at 7–8 ¶ 55–56 (Pro Caliber), at 8 ¶¶ 64–65 (Farmers).
$3,979.58,87 and as to Pro Caliber, debtors paid $40,133.34, she received in
settlement $29,227, and her net claim is $10,906.34.88
That Mitchell’s claims should be reduced by the amounts she received in
settlement from initial transferees is consistent with 550(d), which limits a
trustee to “a single recovery” of an avoided transfer. But that limitation
requires a credit against the trustee’s avoidance-recovery claim against a
defendant only to the extent that the trustee’s recovery from someone else is
on account of the transfer that the trustee seeks to recover from the
defendant. Had I determined that she could avoid all the payments alleged in
the complaint, including those in 2015, there would be no question that the
recovery would have to be net of the amounts of the settlement payments.
That’s because the settlement payments, although not equal to the full
amount of the avoidable payments, would have been on account of the all the
avoidable payments.
But I have decided that the avoidable payments are only those made in
and after 2017, so the avoidable payments are only a subset of those on
account of which Mitchell received settlement payments. The credits for the
settlement payments should not exceed the amount necessary to limit her to
a single recovery of the avoided transfers. In other words, the credits should
87 ECF No. 33 at 9 ¶ 42; ECF No. 44 at 15.
88 ECF No. 33 at 8 ¶ 37; ECF No. 44 at 15.
be limited to the portions of the settlement payments attributable to the
avoided payments.
For Farmers, the settlement payment of $17,619 is 82 percent of the 2016-
and-after payments of $21,598.58, so the portion of the settlement payment
attributable to the insolvency-period payments of $14,979.11 should be the
same 82 percent of the insolvency-period payments, or $12,219.18, leaving a
net avoidable amount of $2,759.93. And for Pro Caliber, the settlement
payment of $29,227 is 73 percent of the 2016-and-after payments of
$40,133.34, so the portion of the settlement payment attributable to the
insolvency-period payments of $21,909.32, is the same 73 percent of the
insolvency-period payments, or $15,955.41, leaving a net avoidable amount of
$5,953.91.
Of the payments I determined at summary judgment had been paid
directly to Kruckenberg, those during insolvency period total $89,819.60.
(2) Payments benefiting both defendants
At summary judgment, I determined that debtors did not receive
reasonably equivalent value for payments of defendants’ personal expenses
totaling $242,004.3589 and their taxes totaling $691,247.51,90 for a grand
total of $933,251.86. During the insolvency period, the personal-expense
89 ECF No. 44 at 6.
90 ECF No. 44 at 7.
payments total $200,640.04,91 and the tax payments total $503,497.60,92 for a
grand total of $704,137.64.
(b) Other transfers
(1) Payments nominally to Santiago alone
I determined at summary judgment that, in and after 2016, debtors paid
Santiago $279,828.72,93 but I did not find that debtors had received less than
reasonably equivalent value for those payments.
In Santiago’s declaration, she roughly accounts for the payments Mitchell
alleged Santiago had received. Santiago says she received regular paychecks
of $1,700 every two weeks for services “through October 20, 2017,” “two
paychecks of $1,398.40, on Nov. 3 and Nov. 17, 2017,” and a check for
$4,195.44 on March 5, 2018, which she says total $64,792.24.94 She also lists
payments from February 5, 2016, through June 7, 2019, in multiples of
$1,000, from $5,000 to $10,000, totaling $219,000. She says the $219,000
“must have been deposited into a joint checking account that Tyler
[Kruckenberg] controlled,” and she does “not know where that money went,
and I certainly do not have it now.”95
91 ECF No. 73-12.
92 ECF No. 73-16.
93 ECF No. 44 at 7, 15.
94 ECF No. 73-17 at 3 ¶ 15.
95 ECF No. 73-17 at 4 ¶ 20, Ex. A.
The payments that Santiago lists as totaling $219,000 are identifiable in
Mitchell’s Exhibit 13, which lists payments comprising the $279,828.72 that
Mitchell claimed at summary judgment had been paid to Santiago.96
At trial, Mitchell withdrew her request for judgment against Santiago on
account of any of the payments totaling $279,828.72 that Mitchell had said
that Santiago alone received (but not the $933,211.86 that Mitchell alleges
debtors paid for defendants’ joint benefit). And Mitchell seeks recovery of the
$219,000 from Kruckenberg. That position aligns with Mitchell’s in the
complaint and summary-judgment motion, where she sought recovery of all
alleged fraudulent transfers from both defendants.97 At summary judgment, I
rejected Mitchell’s argument that defendants had joint liability for all the
fraudulent transfers, finding that the summary-judgment evidence supported
holding only Santiago liable for the payments alleged to have been made only
to Santiago. I was not asked then to decide that Kruckenberg was immune
from liability for the payments nominally made to Santiago. About 15 days
before trial, Mitchell filed and served her motion for admission at trial of
Santiago’s declaration—the evidentiary basis for finding that the payments
totaling $219,000 were received not by Santiago, but by Kruckenberg.98
96 ECF No. 33 at 9¶ 47 Ex. 4.
97 ECF No. 1 at 4 ¶ 19, at 11 ¶ 70, at 22 ¶¶ B, G; ECF No. 31 at 2 ¶ 2.
98 ECF No. 58.
Mitchell’s trial brief, filed and served at the same time, asked that Tyler be
held liable for those payments.99
I credit Santiago’s declaration testimony that she did not receive the
$219,000 paid nominally to her, and I find that Kruckenberg alone received
that amount. The portion of that amount paid during the insolvency period is
$165,000.100
(2) Payments to Bafford
At trial, Mitchell sought to avoid payments debtors made to Howard
Bafford, for which she had not sought summary judgment. Defendants
acknowledged that they leased their residence from Bafford, and Mitchell
testified that debtors made the lease payments to him. That evidence shifted
to defendants the burden of proving that debtors received reasonably
equivalent value for the lease payments. Santiago testified that the residence
was used for business-related entertaining, including parties at which
90 percent of guests were debtors’ employees and, as a result, debtors
received value for making the lease payments. But I have no evidence of the
portion of the lease payments that are attributable to use of the residence for
business purposes benefitting debtors. I thus find that debtors received no
value for the Bafford payments.
Mitchell said that the payments to Bafford had been “summarized in
Exhibit B to the complaint” and that the gross amount she seeks to recover is
99 ECF No. 60 at 2 ¶ 4.
100 ECF No. 73-13.
$210,000. That amount is the total of the payments listed in complaint
Exhibit B as having been made in and after 2016.101 She also said that in a
main-case settlement with Bafford, the estate had received value in the form
of a reduction of a claim by a Bafford-related company, Baffco Enterprises,
LLC,102 of which she treats the net amount of $115,000 as a partial recovery
of the lease payments. She thus seeks to avoid the net amount of $95,000
($210,000 minus $115,000) on account of the Bafford payments.
For the reasons explained above regarding the settlement payments from
Farmers and Pro Caliber, the Bafford settlement payment is only partly
attributable to the Bafford payments I have found to be avoidable. The
settlement payment of $115,000 is 55 percent of the 2016-and-after payments
of $210,000, so the portion of the settlement payment attributable to the
insolvency-period payments of $150,000 should be the same 55 percent of the
insolvency-period payments, or $82,142.86, leaving a net avoidable amount of
$67,857.14.
(c) Existence of unsecured creditor
Section 544(b)(1) requires that an actual, not hypothetical, creditor be able
to avoid the challenged transfer under applicable nonbankruptcy law.103
As I noted in part III.C.2(a)(4) above, Cosmos was a supplier to debtors of
countertop slabs; in 2016, debtors were making payments, ordering actively,
101 ECF No. 1 at 4 ¶ 24, Ex. B.
102 No. 19-32600 ECF No. 528.
103 Zazzali v. United States of America (In re DBSI, Inc.), 869 F.3d 1004, 1009
(9th Cir. 2017).
and paying Cosmos; debtors made a 2017 journal entry reducing but not
eliminating their debt to Cosmos; debtors agreed in 2018 to pay Cosmos; and
a judgment for Cosmos was entered in 2019, shortly before bankruptcy. I
infer from those events, and Cosmos’s filed proof of claim,104 that Cosmos was
a creditor at the time of each of the otherwise avoidable fraudulent transfers,
which occurred in and after 2017. I have no evidence that Cosmos was other
than an unsecured creditor. It could have sought under 95.240(1) to avoid the
payments that Mitchell seeks to avoid as fraudulent transfers.
The actual-creditor requirement is satisfied.
(d) Summary of avoidable constructively
fraudulent transfers
The sum of the avoidable constructively fraudulent transfers to or for the
benefit of Kruckenberg alone is $331,390.59. That amount is the sum of
payments—
• To Bafford of $67,857.14,
• To Farmers of $2,759.93,
• To Kruckenberg of $89,819.60,
• To Pro Caliber of $5,953.91, and
• To Santiago nominally, but actually to Kruckenberg, of $165,000.
The sum of the avoidable constructively fraudulent transfers to or for the
benefit of both defendants is $704,137.64.
104 Claim 47-1.
2. Actual-intent fraudulent transfers
I denied Mitchell’s request for summary judgment that all the allegedly
fraudulent transfers are avoidable under the alternative theory that debtors
made them with actual intent to hinder, delay, or defraud creditors.105 Of the
reasons I gave for that denial, the only one affected by the trial evidence is
that I was unable at summary judgment to determine that debtors were
insolvent or rendered insolvent. My trial finding of insolvency supports
avoidance only of the insolvency-period payments, which I have already
determined to be constructively fraudulent. So the insolvency evidence adds
nothing to Mitchell’s actual-intent argument.
I adhere to my summary-judgment conclusion that the evidence does not
support a finding of actual intent.
3. Section 548 claim
Section 548(a)(1)(B) permits avoidance of constructively fraudulent
transfers within two years before bankruptcy. Because the two-year period
started July 16, 2017, it is a subset of the period from and after January 1,
2017, for which I have found the transfers to be avoidable under 544(b). So no
purpose is served by addressing avoidance under 548 on top of 544(b).
E. Preferences
On Mitchell’s motion for summary judgment on her preference claim, I
decided that she may avoid $5,000 paid on June 19, 2019.106 That payment
105 ECF No. 44 at 20–22.
106 ECF No. 44 at 13; ECF No. 45 at 2 ¶ 1.a.
was made within 90 days before bankruptcy, when insolvency is presumed.
And I ruled that $55,000 paid on February 11, 2019, outside the 90-day
period, is avoidable upon proof of insolvency.107
Having determined at trial that debtors were insolvent in 2019, Mitchell
may avoid the $55,000 payment as well.
F. Postpetition transfer
I granted Mitchell summary judgment avoiding $21,391.56 paid to
Kruckenberg after the petition date.108
G. Recovery and preservation of avoided transfers
Under 550(a)(1), the trustee may recover property the transfer of which
has been avoided, or the value of the property, from the initial transferee or
the entity for whose benefit the transfer was made. So the value (amount) of
payments I have found to be avoidable may be recovered by Mitchell from the
relevant defendant, or both of them, either as the initial transferee or the
entity for whose benefit the transfer was made. Recovery is effected by entry
of a money judgment against the liable defendant.
Under 551, an avoided transfer is preserved for the estate’s benefit “but
only with respect to estate property.” Preservation, as distinct from recovery,
appears to be meaningful only when the transfer is of noncash property or a
lien on it. Here, the avoided transfers are of cash. In any case, preservation is
automatic and does not require court action other than avoidance.
107 ECF No. 44 at 13; ECF No. 45 at 2 ¶ 1.b.
108 ECF No. 44 at 23.
IV. Conclusion
Mitchell may avoid payments to or for the benefit of Kruckenberg totaling
$412,782.15, which is the sum of $60,000 for preferences, $331,390.59 for
fraudulent transfers, and $21,391.56 for the postpetition transfer. And she
may avoid fraudulent transfers to or for the benefit of both defendants
totaling $704,137.64. She may have judgment against defendants to recover
those amounts. The judgment against both defendant will be joint and
several. The judgment will also dismiss the claim against W2W Stone
Holdings, LLC.
I will prepare and enter a separate judgment.
# # #
cc: Tyler Glenn Kruckenberg
Angela (Kruckenberg) Santiago
W2W Stone Holdings, LLC