# Bachrach Clothing, Inc. v. Bachrach (In re Bachrach Clothing, Inc.)

> United States Bankruptcy Court, N.D. Illinois · October 10, 2012 · 480 B.R. 820

URL: https://www.frixlaw.com/law-library/cases/8495231

## Case

- **Full name:** In re BACHRACH CLOTHING, INC., Debtor. Bachrach Clothing, Inc. v. Edgar H. Bachrach
- **Court:** United States Bankruptcy Court, N.D. Illinois
- **Decided:** October 10, 2012
- **Citations:** 480 B.R. 820; 2012 Bankr. LEXIS 4807; 2012 WL 4838998
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Hollis
- **Judges:** Hollis
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8495231

## How later opinions describe it (automated extraction)

- observing that Ibbotson cautioned: ‘Breaking the smallest decile down lowers the significance of the results compared to results for the 10th decile taken as a whole, 98 however. The same holds true for comparing the 10th decile with a micro-cap aggregation of the 9th and 10th…
- explaining that “Elson's opinion was not persuasive” and that the other expert’s analysis “was more convincing than Elson’s”
- discussing valuation literature, noting conditions under which either method susceptible of abuse

## Opinion text

Memorandum Opinion
PAMELA S. HOLLIS, Bankruptcy Judge.
Introduction
Debtor BCI brought this action to avoid transfers made to its former owners. After five days of trial and review of thousands of pages of additional evidence submitted, including financial treatises, expert reports and depositions, the court enters judgment in favor of Defendants on all counts.
Parties
Plaintiff in this adversary proceeding is Chapter 11 debtor, Bachrach Clothing, Inc. (“BCI” or “Bachrach”). Defendants are Edgar H. Bachrach (“Ed”), his sisters, Sally B. Robinson and Barbara B. James (all three together, the “Sellers”), and Bar-saled, LLC (“Barsaled,” and together with the Sellers, “Bachrachs” or “Defendants”). Sellers are Barsaled’s only members.
Jurisdiction and Authority to Enter Final Judgment
The complaint filed in this adversary proceeding consists of fifteen counts (“Complaint”). All but three of the counts allege violations of federal bankruptcy and state fraudulent conveyance laws, citing 11 U.S.C. §§ 544 (b), 548 and 550, and 740 ILCS 160/5 and 160/6. The fraudulent conveyance counts do not plead state and federal claims distinctively, presumably because the state and federal statutes are substantially similar. Additionally, Count 13 contends that Defendants, former board members of BCI, breached fiduciary duties of good faith, fair dealing, honesty and loyalty in selling BCI. Count 14 seeks to disallow Defendants’ proofs of claim, citing 11 U.S.C. § 502 (d) of the Bankruptcy Code, which blocks payment on a creditor’s claim until that creditor returns property subject to avoidance, including fraudulent transfers. Count 15 relies on 11 U.S.C. § 510 (c) of the Bankruptcy Code to subordinate claims and liens of Defendants to the extent they engaged in inequitable conduct harmful to BCI’s creditors.
Unremarkably, this court has subject matter jurisdiction to hear debtor’s Complaint pursuant to 28 U.S.C. § 1334 and § 157. Slightly more controversial is whether this court has the authority to enter a final judgment on all counts in light of the United States Supreme Court’s decision in Stern v. Marshall, — U.S. -, 131 S.Ct. 2594 , 180 L.Ed.2d 475 (2011). However, Stem does not remove this court’s authority to render a final judgment. Here, resolution of nearly all of the contested issues was necessary to adjudicate Defendants’ proofs of claim. Additionally, the parties consented to a final judgment by this court.
Given the extensive discussion of Stem in hundreds of decisions since its release last year, a protracted review of its facts will be skipped. At issue was a counterclaim filed by the debtor in response to a creditor’s defamation action. The creditor elected to file the defamation claim in the bankruptcy court. The Supreme Court held that the creditor consented to the bankruptcy court’s entry of a final judgment on his defamation claim, but the creditor did not consent to a final judgment on the debtor’s counterclaim for tor-tious interference. The Court found that the counterclaim was not necessary to resolving the creditor’s proof of claim and was based on state common law claims that could have been asserted by the debt- or independent of the bankruptcy.
Title 28 U.S.C. § 157 (b)(2)(C) provides that estate counterclaims brought in re *825 sponse to persons filing claims against the estate are “core” proceedings. If a matter is “core,” the bankruptcy judge is authorized to issue final orders instead of preparing proposed findings of fact and conclusions of law for review by an Article III court. In Stem, the Supreme Court decided this statute was too broad. By classifying counterclaims — regardless of whether they stem from the bankruptcy itself or would necessarily be resolved in the claims allowance process — as “core proceedings,” Congress went too far. Accordingly, the Court held:
Article III of the Constitution provides that the judicial power of the United States may be vested only in courts whose judges enjoy the protections set forth in that Article. We conclude today that Congress, in one isolated respect, exceeded that limitation in the Bankruptcy Act of 1984. The Bankruptcy Court below lacked the constitutional authority to enter a final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor’s proof of claim.
131 S.Ct. at 2620 . The Stem court did not strike down all of § 157, and emphasized that its decision was a narrow one. Id.
The proceeding before this court does not involve common law based counterclaims. Instead the debtor seeks to invalidate Defendants’ sale of BCI as fraudulent. Section 157(b)(2)(H) declares fraudulent transfer actions to be core proceedings. Until Stem, this section unquestionably authorized entry of final judgments by the bankruptcy court. A wrinkle arises, however, since the Supreme Court previously determined that fraudulent transfer actions were based on common law, independent of bankruptcy proceedings. “There is no dispute that actions to recover preferential or fraudulent transfers were often brought at law in late 18th-century England.” Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 43 , 109 S.Ct. 2782 , 106 L.Ed.2d 26 (1989). The Stem majority’s comment that its debtor’s counterclaim should be treated the same as the fraudulent transfer claim in Granfinanciera 1 raises worries about the bankruptcy judge’s authority to issue a final judgment on fraudulent transfer claims. See Douglas G. Baird, Blue Collar Constitutional Law, 86 Am. Bankr. L.J. 3 , 8-9 (Winter, 2012); Ralph Brubaker, A “Summary” Statutory and Constitutional Theory of Bankruptcy Judges’ Core Jurisdiction After Stern v. Marshall, 86 Am. Bankr. L.J. 121 , 183 (Winter, 2012). As Professor Brubaker concluded:
[T]he rationale of the Granfinanciera decision itself clearly called into doubt the constitutionality of bankruptcy judges’ core jurisdiction over preference and fraudulent conveyance suits. After Stem v. Marshall, the conclusion seems inescapable that such core jurisdiction to enter final judgment — -expressly conferred by Judicial Code § 157(b)(2)(F) & (H) — is unconstitutional. Without the consent of the litigants, a bankruptcy judge can do no more than hear the action and submit proposed findings of fact and conclusions to the district court.
Id. at 183.
Before Stem, the filing of a proof of claim by a fraudulent transfer defendant generally permitted the bankruptcy court to enter a final judgment in the avoidance action. The holdings in Granfinanciera and Langenkamp v. Culp, 498 U.S. 42 , 111 S.Ct. 330 , 112 L.Ed.2d 343 (1990) supported this assumption. Neither of those decisions required analysis as to how much of the claim that was independent of the *826 bankruptcy needed to be resolved in order to determine a creditor’s proof of claim. For example, in Langenkamp the Supreme Court held that the mere filing of a proof of claim subjected the creditor to bankruptcy court authority — without any detailed analysis of the overlap of the creditor’s proof of claim and debtor’s avoidance action.
In Granfinanciera we recognized that by filing a claim against a bankruptcy estate the creditor triggers the process of “allowance and disallowance of claims,” thereby subjecting himself to the bankruptcy court’s equitable power. 492 U.S. at 58-59 , and n. 14, 109 S.Ct. at 2799-2800 , and n. 14 (citing Katchen, supra, 382 U.S. at 336, 86 S.Ct. at 476). If the creditor is met, in turn, with a preference action from the trustee, that action becomes part of the claims-allowance process which is triable only in equity. Ibid. In other words, the creditor’s claim and the ensuing preference action by the trustee become integral to the restructuring of the debtor-creditor relationship through the bankruptcy court’s equity jurisdiction. Granfinanciera, supra, 492 U.S. at 57-58 , 109 S.Ct. at 2798-2799 . As such, there is no Seventh Amendment right to a jury trial. If a party does not submit a claim against the bankruptcy estate, however, the trustee can recover allegedly preferential transfers only by filing what amounts to a legal action to recover a monetary transfer. In those circumstances the preference defendant is entitled to a jury trial.
Langenkamp, 498 U.S. at 44-45 , 111 S.Ct. 330 .
So while it was presumed that the filing of a proof of claim authorized the bankruptcy judge to enter final judgments on avoidance actions brought against the fil ing creditor, Stem spoils that assumption. “Stem held that the bankruptcy court could not constitutionally decide the debt- or’s counterclaim against a creditor, despite the fact that the creditor had not only filed a proof of claim, but also had forfeited any objection to the bankruptcy court deciding his own common law claim against the debtor.” 2 In Stem, the filing of a claim was not enough:
It was in that sense that the Court stated that “he who invokes the aid of the bankruptcy court by offering a proof of claim and demanding its allowance must abide the consequences of that procedure.” Id., at 333, n. 9, 86 S.Ct. 467 . In Katchen one of those consequences was resolution of the preference issue as part of the process of allowing or disallowing claims, and accordingly there was no basis for the creditor to insist that the issue be resolved in an Article III court. See id., at 334, 86 S.Ct. 467 . Indeed, the Katchen Court expressly noted that it “intimate[d] no opinion concerning whether” the bankruptcy referee would have had “summary jurisdiction to adjudicate a demand by the [bankruptcy] trustee for affirmative relief, all of the substantial factual and legal bases for which ha[d] not been disposed of in passing on objections to the [creditor’s proof of] claim.” Id., at 333, n. 9, 86 S.Ct. 467 .
Our per curiam opinion in Langenkamp is to the same effect. We explained there that a preferential transfer claim can be heard in bankruptcy when the allegedly favored creditor has filed a claim, because then “the ensuing preference action by the trustee become[s] integral to the restructuring of the debt- or-creditor relationship.” 498 U.S. at 44 , 111 S.Ct. 330 . If, in contrast, the creditor has not filed a proof of claim, *827 the trustee’s preference action does not “become[] part of the claims-allowance process” subject to resolution by the bankruptcy court. Ibid.; see id., at 45, 111 S.Ct. 330 .
... There was some overlap between Vickie’s counterclaim and Pierce’s defamation claim that led the courts below to conclude that the counterclaim was compulsory. ... But there was never any reason to believe that the process of adjudicating Pierce’s proof of claim would necessarily resolve Vickie’s counterclaim ....
... Vickie’s claim, in contrast, is in no way derived from or dependent upon bankruptcy law; it is a state tort action that exists without regard to any bankruptcy proceeding.
Stern, 131 S.Ct. at 2616-18 (emphasis added).
The only way to harmonize Stem with earlier decisions like Granfinanciera and Langenkamp is to conclude that the filing of a proof of claim does not automatically authorize the bankruptcy court to enter a final judgment against that creditor. Instead, the bankruptcy judge’s authority hinges on an analysis of whether resolution of the debtor’s independent claim is necessary to determine the creditor’s proof of claim. 3 Such a test was employed by the Seventh Circuit in In re Ortiz, 665 F.3d 906, 914-15 (7th Cir.2011). This has led one commentator to conclude: “Without a perfect match-up of issues, such that deciding the proof of claim necessarily resolves the debtor’s claim, and vice versa, Stem would indicate that a bankruptcy judge cannot decide any state law or common issue against a third party.” 4
After Stem, courts disagreed on whether bankruptcy judges could enter final judgments in fraudulent conveyance actions, absent the consent of the parties. Contrast for example, In re Menotte v. United States (In re Custom Contractors, LLC), 462 B.R. 901 (Bankr.S.D.Fla.2011); Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626, 645-46 (Bankr.D.Del.2012) (yes)— with Heller Ehrman LLP v. Arnold & Porter, LLP (In re Heller Ehrman LLP), 464 B.R. 348 (N.D.Cal.2011); In re Teleservices Group, Inc., 456 B.R. 318 (Bankr.W.D.Mich.2011); Paloian v. Am. Express Co. (In re Canopy Fin., Inc.), 464 B.R. 770 (N.D.Ill.2011) (no).
In reviewing the twelve fraudulent transfer counts brought in this case, this court concludes it has the power to enter final orders on those counts, since they were integral and necessary to resolving Defendants’ proofs of claim. All of Defendants’ proofs of claim sought payment on obligations arising solely from the sale of BCI. BCI’s adversary complaint tries to avoid that sale and the transfers of property that resulted from it. Ed, as collateral agent for himself and his sisters, filed secured Claim 243-1 on October 5, 2006, in the amount of $4,172,054.79 plus expenses. This claim represented Ed and his sisters’ lien on BCI’s collateral to secure a note issued by BCHC, the purchaser of BCI. 5 *828 The remaining defendant in this proceeding, Barsaled LLC, filed unsecured Claim 245-1 in the amount of $168,022.58, which represented rent due from BCI on real property transferred to Barsaled on or about the same time as the sale of BCI to BCHC. The Complaint alleges, and the court agrees, that rent to Barsaled was in connection with the Stock Purchase Agreement. Count one of the Complaint seeks to avoid all obligations created by the Stock Purchase Agreement. If debtor prevailed on this one count alone, Defendants’ proofs of claim would necessarily be disallowed. The remaining fraudulent conveyance counts simply divide up the type and nature of transfers going to each defendant as a result of the sale. Disallowance of Defendants’ claims would necessarily follow a judgment for the Debtor on all the fraudulent conveyance counts. This is mandated by Bankruptcy Code § 502(d) which denies payment on a claim if the creditor received and failed to return voidable transfers. 6 Indeed, that provision anchors Count 14, which sought disallowance of the claims of Ed and his sisters (Claims 241-1 and 334-1) because of the alleged fraudulent conveyances. Count 14 incorporates the first 146 allegations of the Complaint, demonstrating the inseparable overlap between this proceeding and the claims allowance process. As a result, resolution of BCI’s claims in this proceeding is necessary to determine Defendants’ proofs of claim.
Count 15 seeks to equitably subordinate Ed and his sisters’ proofs of claim under § 510(c) of the Bankruptcy Code. Again, this is nothing more than claims resolution added as a count to this adversary proceeding. BCI’s claim for equitable subordination depends on the existence of Defendants’ claims in the first instance. Accordingly, this court retains authority to issue a final order on Count 15, which requests subordination of claims. See concurring post-Stero decisions: Burtch v. Huston (In re USDigital, Inc.), 461 B.R. 276 (Bankr.D.Del.2011) and Direct Response Media, 466 B.R. at 645-46 .
Finally, Count 13 alleges breach of fiduciary duty and incorporates nearly all of the fact allegations of the Complaint’s other counts, again demonstrating an overlap with the claims resolution process. Generally, directors owe fiduciary duties only to their shareholders. However, when a company is operating in the zone of insolvency, Illinois law expands that duty to the company’s creditors. See Steinberg v. Kendig (In re Ben Franklin Retail Stores, Inc.), No. 97C7934, 2000 WL 28266 , at *4 (N.D.Ill. Jan. 12, 2000). If BCI was not insolvent near the time of the sale, this count falls away. If this court were to allow Defendants’ proofs of claim on the basis that there was no fraudulent conveyance because debtor was solvent, there is really nothing more for any Article III court to determine on Count 13. In considering a similar situation in Stem, the majority observed that the bankruptcy judge (or referee) would have power to finally decide the avoidance action:
Although the creditor in Katchen objected that the preference issue should be resolved through a “plenary suit” in an Article III court, this Court concluded that summary adjudication in bankruptcy was appropriate, because it was not possible for the referee to rule on the creditor’s proof of claim without first *829 resolving the voidable preference issue. 382 U.S. at 329-330, 332-333, and n. 9, 334, 86 S.Ct. 467 . There was no question that the bankruptcy referee could decide whether there had been a voidable preference in determining whether and to what extent to allow the creditor’s claim. Once the referee did that, “nothing remains for adjudication in a plenary suit”; such a suit “would be a meaningless gesture.” Id., at 334, 86 S.Ct. 467 . The plenary proceeding the creditor sought could be brought into the bankruptcy court because “the same issue [arose] as part of the process of allowance and disallowance of claims.” Id., at 336, 86 S.Ct. 467 .
Stern, 131 S.Ct. at 2616 .
Because of the close relationship between the breach of fiduciary duty count and the claims resolution process, this court does have authority to enter a final order on Count 13. Stem only held that the bankruptcy court lacked power to enter a final judgment on a state or common law claim not derived solely from the bankruptcy “that is not resolved in the process of ruling on a creditor’s proof of claim.” 131 S.Ct. at 2620 . In Stem, unlike here, “[t]here thus was never reason to believe that the process of ruling on Pierce’s proof of claim would necessarily result in the resolution of Vickie’s counterclaim.” Id. at 2617-18 .
In this case, Stem will be applied narrowly, in line with its majority opinion which emphasized:
We do not think the removal of counterclaims such as Vickie’s from core bankruptcy jurisdiction meaningfully changes the division of labor in the current statute; we agree with the United States that the question presented here is a “narrow” one.
Article III of the Constitution provides that the judicial power of the United States may be vested only in courts whose judges enjoy the protections set forth in that Article. We conclude today that Congress, in one isolated respect, exceeded that limitation in the Bankruptcy Act of 1984. The Bankruptcy Court below lacked the constitutional authority to enter a final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor’s proof of claim.
Stern, 131 S.Ct. at 2620 .
After this court presided over a lengthy trial, post-trial briefs were filed, and the matter was taken under advisement, Ed and his sisters (but not Barsaled) were given leave to withdraw their proofs of claim on or about February 20, 2011. Order on Plaintiff’s Motion to Voluntarily Dismiss Adversary Proceeding No. 09-00225 (Dkt. 56). The withdrawal of claims occurred months before the Stem decision. No language specifically referred to the effect of the claims withdrawal on the bankruptcy court’s power to finally adjudicate this proceeding. Presumably, this is because the parties consented to the court’s power, and Stem had not yet surfaced to create an uproar.
Defendants won this case, so it is unlikely they will ever assert that withdrawal of their claims voided the bankruptcy judge’s power to render a final decision. However, if debtor tries to avert its loss by such a belated argument, it should fail. Two pre-Stem decisions are instructive. EXDS, Inc. v. RK Elec., Inc. (In re EXDS, Inc.), 301 B.R. 436 (Bankr.D.Del.2003) involved an attempt by a defendant to withdraw a proof of claim in order to demand a trial by jury. This court agrees with that court’s statements on pp. 440-41:
Given the clear directive of Langen-kamp, I do not believe it makes, any difference on the jury trial issue whether I authorize RK to withdraw its proof of claim. At the time of the filing of the *830 adversary complaint, RK was subject to the jurisdiction of this court where there is no right to a jury trial. In the words of Langenkamp , RK submitted itself to the “claims-allowance process” of the equity court. Stated differently, in the words of the Travellers opinion, RK lost its right to a jury trial because it elected to participate in the equity court proceeding. Given the unequivocal language of Langenkamp and Travellers as to the effect of filing a proof of claim, I do not believe that a creditor can, for strategic reasons, reverse the result it triggered by filing a proof of claim by later withdrawing the claim....
In an analogous situation, the court in In re Sea Island Cotton Trading, Inc., 2000 WL 33952877 , at *2-3 (Bankr.S.D.Ga. July 25, 2000) found that “[d]e-fendants submitted themselves to the jurisdiction of this court by filing proofs of claim in the bankruptcy case. The subsequent assignment of the claim does not divest this court of jurisdiction over Defendants.” Another analogous situation is found in In re Barrett Refining Corp., 221 B.R. 795 (Bankr.W.D.Okla.1998). There the court held that the State of Mississippi relinquished any right of sovereign immunity by filing a proof of claim even where that proof of claim stated that the State “reserved” state sovereign immunity.
In the matter before me, as in the Lan-genkamp case, the proof of claim was filed before the avoidance action was commenced. That fact pattern suggests a result similar to that involving federal jurisdiction based on diversity. Federal diversity jurisdiction depends on the citizenship of the parties at the time suit is filed. See, e.g., Anderson v. Watt, 138 U.S. 694, 702-03 , 11 S.Ct. 449 , 34 L.Ed. 1078 (1891) (“And the [jurisdictional] inquiry is determined by the condition of the parties at the commencement of the suit.”); see also Minneapolis & St. Louis R.R. Co. v. Peoria & Pekin Union R.R. Co., 270 U.S. 580, 586 , 46 S.Ct. 402 , 70 L.Ed. 743 (1926) (“The jurisdiction of the lower court depends upon the state of things existing at the time the suit was brought.”).
Id. (alternations in original).
Following this decision was Enron Corp. v. Citigroup, Inc. (In re Enron Corp.), 349 B.R. 108 (Bankr.S.D.N.Y.2006), where the court held that disposition of a proof of claim did not affect the bankruptcy judge’s power to finally adjudicate matters:
The disposition of a claim, alone, does not nullify the consequences of a creditor’s invocation of jurisdiction premised upon such claim. See EXDS, Inc. v. RK Electric, Inc. (In re EXDS, Inc.), 301 B.R. 436, 439-41 (Bankr.D.Del.2003) (concluding that “a creditor [cannot], for strategic reasons, reverse the result it triggered by filing a proof of claim by later withdrawing the claim”); The Academy, Inc. v. James, Hoyer, Newcomer, & Smiljanich, P.A., et al. (In re The Academy, Inc.), 289 B.R. 230, 234-35 (Bankr.M.D.Fla.) (“The fact that [the defendants in adversary proceeding] no longer wish to assert claims against the [debtor] should not impact in any way the court’s jurisdiction over them for the purpose of the [debtor’s claims against them.”).
Id. at 114-15 n. 2.
Accordingly, once the bankruptcy court’s power is properly invoked and the case tried to a conclusion, no party may challenge the outcome by relying on a subsequent claim withdrawal. Any other result invites gamesmanship and a waste of resources.
Even if withdrawal of some claims could affect the bankruptcy court’s power, 7 the *831 parties consented to this court’s authority to enter a final judgment. Since the issue in Stem only involved the bankruptcy judge’s authorization to issue a final judgment, and not subject matter jurisdiction to hear the case, the parties may agree to a final adjudication by the bankruptcy court. That was made plain in Stem when the majority held that the creditor who brought his defamation claim to the bankruptcy court, and voluntarily litigated it there, waived his right to trial before an Article III court:
We agree with Vickie that Pierce not only could but did consent to the Bankruptcy Court’s resolution of his defamation claim....
Indeed, Pierce apparently did not object to any court that § 157(b)(5) prohibited the Bankruptcy Court from resolving his defamation claim until over two years— and several adverse discovery rulings— after he filed that claim....
Given Pierce’s course of conduct before the Bankruptcy Court, we conclude that he consented to that court’s resolution of his defamation claim (and forfeited any argument to the contrary). We have recognized “the value of waiver and forfeiture rules” in “complex” cases, Exxon Shipping Co. v. Baker, 554 U.S. 471, 487-488, n. 6 , 128 S.Ct. 2605 , 171 L.Ed.2d 570 (2008), and this case is no exception. In such cases, as here, the consequences of “a litigant ... ‘sandbagging’ the court — remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor,” Puckett v. United States, 556 U.S. 129 , [134], 129 S.Ct. 1423, 1428-29 , 173 L.Ed.2d 266 (2009) (some internal quotation marks omitted) — can be particularly severe. If Pierce believed that the Bankruptcy Court lacked the authority to decide his claim for defamation, then he should have said so — and said so promptly. See United States v. Olano, 507 U.S. 725, 731 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (“ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited ... by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it’” (quoting Yakus v. United States, 321 U.S. 414, 444 , 64 S.Ct. 660 , 88 L.Ed. 834 (1944))). Instead, Pierce repeatedly stated to the Bankruptcy Court that he was happy to litigate there. We will not consider his claim to the contrary, now that he is sad.
Stern, 131 S.Ct. at 2607-08 .
Several post-Stera eases hold that parties may consent to final adjudication by the bankruptcy court and forfeit or waive any right to a final adjudication by an Article III court. See In re Olde Prairie Block Owner, LLC, 457 B.R. 692 (Bankr.N.D.Ill.2011); Hawaii Nat’l Bancshares, Inc. v. Sunra Coffee LLC (In re Sunra Coffee LLC), No. 09-01909, 2011 WL 4963155 , 2011 Bankr.LEXIS 4047 (Bankr.D.Haw. Oct. 18, 2011). Moreover, this consent may be implied by the conduct of the parties. See In re Custom Contractors, 462 B.R. at 909 ; Ardi Ltd. P’ship v. The Buneher Company (In re River Entm’t Co.), 467 B.R. 808 (Bankr.W.D.Pa.2012). All of these cases agree that parties who litigate before the bankruptcy court through lengthy stages, without objection, will be deemed to have consented to a final judgment by the bankruptcy court.
BCI elected to file its case before the bankruptcy court and alleged in paragraph 16 of the Complaint: “This adversary proceeding constitutes a core proceeding within the meaning of one or more subsections of 28 U.S.C. § 157 (b).” All *832 Defendants admitted to this allegation. Additionally, in the jointly prepared Stipulations of Fact for Trial, the parties again agreed that: “This adversary proceeding constitutes a core proceeding within the meaning of one or more subsections of 28 U.S.C. § 157 (b).” (¶ 15). As held in Mercury Companies, Inc. v. FNF Sec. Acquisition, Inc., 460 B.R. 778 (D.Colo.2011):
“[A]n allegation that the proceeding is core serves as an express consent for the bankruptcy court to treat that proceeding as core and enter a final order in that proceeding,” In re C.W. Mining Co., No. 2:09CV417DAK, 2009 U.S. Dist. LEXIS 115705 , 2009 WL 4906702 , at *2 (D.Utah Dec. 11, 2009). The parties’ admissions in their pleadings that the Adversary Proceeding was a core proceeding constituted consent to the authority of the Bankruptcy Court to enter orders and judgment in the proceeding.
... Here, not only did the parties admit in their responsive pleadings that the action was a core proceeding, but neither party made any allegation that the action or any claim therein was non-core, and neither party made any mention that they did not consent to the authority of the Bankruptcy Court to enter orders and judgment (as they were required to do under Federal Rule of Bankruptcy Procedure 7012(b) if they believed it was a non-core proceeding). This also constituted consent to the authority of the Bankruptcy Court to enter orders and judgment in the Adversary Proceeding. See Citizens Concerned for Separation of Church & State v. City & County of Denver, 628 F.2d 1289, 1293 (10th Cir.1980) (observing that where an answer fails to deny jurisdictional allegations, the allegations are properly deemed admitted).
Finally, the Adversary Proceeding was filed on January 27, 2010, and Defendants waited nearly 19 months, until August 15, 2011, to challenge the authority of the Bankruptcy Judge to enter orders and judgment in the Adversary Proceeding. In the meantime, not only did Defendants consent in their responsive pleadings to the authority of the Bankruptcy Court to enter orders and judgment, but they also heavily litigated the action in the Bankruptcy Court, filing a witness and exhibit list (ECF No. 46), deposition notices (AP ECF No. 59, 64-66, 105, 106, 111), expert disclosures (AP ECF No. 97), a motion for partial summary judgment (AP ECF No. 90), a motion for summary judgment (AP ECF No. 124), and a motion in limine (AP ECF No. 125). In so doing, Defendants’ impliedly consented to the authority of the Bankruptcy Court to enter orders and judgment in the Adversary Proceeding. See In re Millenium Seacarriers, Inc., 419 F.3d 83, 96 (2d Cir.2005) (“[Ljienors, by litigating their maritime liens before the bankruptcy court, consented to the bankruptcy court’s equitable jurisdiction to adjudicate and extinguish their liens....”); In re Kaiser Steel Corp., 95 B.R. 782, 788 (Bankr.D.Colo.1989) (“[C]onsent under [28 U.S.C. § ] 157(c)(2) ... may be implied from a timely failure to object to the Bankruptcy Court’s jurisdiction; or it may be implied from any act which indicates a willingness to have the Bankruptcy Court determine a claim or interest.”).
Id. at 781-82.
Because the parties in this proceeding admitted that the matters to be decided here are core, they expressly consented to a final adjudication by this court. Consent may also be implied. At no time before, during, or after the trial of this case did any party object to or question the power of this court to finally decide the matters before it. The parties have had an opportunity to digest Stem’s holding *833 for over a year and have yet to raise any questions regarding this court’s authority. The opportunity is now foreclosed.
Findings of Fact 8 — Rule 7052, Federal Rules of Bankruptcy Procedure
1. Events Leading up to Sale of Debtor
BCI, or “Baehrach,” was a mall-based retailer of men’s apparel. Until 2005, BCI was owned and operated by the Baehrach family. Ed’s great grandfather, Henry Baehrach, founded the business in 1877, after selling civilian suits to returning Civil War soldiers for twenty five cents. Henry’s original Decatur, Illinois store was called “Cheap Charley”. The business grew to a peak of 82 stores in the mid-1990s. Until the business was sold in 2005, there were only four presidents: founder Henry; his son Edgar, Edgar’s son Henry and Henry’s son — Ed Ba-chrach, a defendant in this action. Before the 2005 sale, one hundred percent of the business’ stock was owned by trusts in favor of Ed and his two sisters. Ed, his sisters, and brother-in-law Ronald James, who is married to sister Barbara James, sat on BCI’s board of directors, and constituted BCI’s entire board of directors up until the sale (the “Directors”).
Ed Bachrach’s trust held the majority of BCI’s shares. Ed worked in the family business starting at the age of seven. He received an accounting degree from Northwestern University in 1970, and returned to Baehrach as a controller in 1976, following a stint in the Army and four years as a staff accountant with Ernst & Whinney. Ed became a licensed CPA in 1971.
Ed reported to his father Henry when he started as controller in 1976. Ed became President of BCI in 1979 and held that position until the company was sold in 2005. During Ed’s time with the company from 1976 up to 2005, he was intimately familiar with its financial situation. During most of those years, BCI was profitable. BCI’s assets never exceeded its liabilities, and the company was always able to pay its debts as they became due. Not a single vendor refused favorable credit terms because of a concern that BCI could not pay its debts, nor was the company ever sued for failing to pay its debts. The company never experienced negative working capital nor did anyone express a concern that its working capital was too small. Also during the years that Ed ran the company, BCI’s operations were financed primarily by the positive cash flow generated by the company. “We always carried *834 significant cash balances. And when it was time for us to make an investment in either additional working capital or other fixed assets, we did it with that cash.” (Testimony of Ed Bachrach, Trial Transcript Vol. 1, at 55-56)
Although operations were generally-funded with cash, the business had lines of credit with financial institutions. BCI used the lines only two or three years in the late 1990s when the business was rapidly expanding. The funds were borrowed on a seasonal basis and all loans were paid off after the holiday season. The banks never required any personal guarantees for the loans, and the lines were unsecured when they were actually used. BCI never had any long term debt during Ed’s tenure.
Sometime during the 1990s Ed determined that stores located in smaller cities were not as profitable as those located in major markets. He decided to prune these less profitable stores in favor of consolidating the business into larger markets. BCI’s overall sales revenues declined between years 2000 and 2004, due at least in part to planned store closures. However, same store sales were up and down in some of those years and remained flat on an aggregated basis, notwithstanding 9/11’s general assault on the economy. 9 During this discrete period, BCI was using more cash than it was generating, although in 2004 it did report positive earnings before interest, taxes and depreciation (EBITDA) after adjustments for non-recurring items. 10 Such items included store closings and consultant fees incurred to evaluate replacing Ed with outside management so he could pursue other goals. 11
Between 1999 and 2004 Ed explored selling the family business to pursue a lifelong goal of returning to school for an advanced degree in economics and political science. He conferred with investment bankers and consultants but received no offers. During that time, a number of options were discussed. Ed’s notes of various meetings included information communicated by the consultants on selling the business, liquidation, bankruptcy, preference actions and elements of fraudulent transfer actions. While there was no evidence on why these matters were discussed, none of the consultants suggested that BCI was insolvent or unable to pay its debts. Ed does not specifically recall why he took notes on these issues — indicating he simply wrote down comments of others but cannot recall the context. (Testimony of Ed Bachrach, Trial Transcript Vol. 1, at 70)
Eventually a William Blair investment banker introduced Ed to Sun Capital Partners (“Sun”). On January 11, 2005, Sun delivered to Ed a letter of intent to purchase BCI. In that letter, Sun described itself as follows:
Sun Capital Partners, Inc. is a leading private investment firm focused on leveraged buyouts and investments in *835 market leading companies that can benefit from our in-house operating professionals and experience. Sun Capital has invested in more than 75 companies since our inception in 1995 with combined sales in excess of $18.0 billion. On a consolidated basis, Sun Capital’s portfolio companies would rank in the top 100 of Fortune Magazine’s listing of the 500 largest companies in the United States. Sun Capital has offices in Boca Raton, Florida, Los Angeles, New York and London but has acquired and manages companies worldwide.
(JX 068 at k)
Sun’s letter proposed these terms: Sun would pay Sellers $4 million cash, and Sellers would finance the other half of the $8 million purchase price on a subordinated basis. Sun did not want to purchase BCI’s real estate, so the letter requested Sellers to keep the real estate and lease, it back to BCI. Sun did not want to “buy” BCI’s excess cash, so it asked Sellers to withdraw the surplus cash. However, the letter noted that the purchase price would be adjusted up or down to achieve a level of “normalized” working capital agreed to by Sun and Sellers. So if the parties determined that too much cash was withdrawn, the Sellers were required to refund that amount. The offer indicated that the “Acquisition will not have a financing contingency associated with this transaction.” (Id. at 2, emphasis in original) Ed Ba-chrach, on behalf of BCI, accepted the letter on January 12, 2005, but he had no role in drafting the letter or fixing the major terms of the proposed sale. (Testimony of Ed Bachrach, Trial Transcript Vol. 1, at 71-75)
Thereafter, Sun engaged KPMG LLP to assist in its due diligence of BCI. KPMG prepared a report for Sun on or about February 3, 2005, dubbed “Project Euro Shirt.” Using prior years’ financials from BCI’s outside auditors, 2004 financials not yet closed and audited, and management interviews, KPMG observed:
Assuming a $8 million purchase price for Target’s stock, there is no potential step-up in the tax basis of Target’s assets in the proposed transaction. In fact, the purchase price is substantially less than the book value of the Target’s net assets.
(JX 025 at 21)
KPMG also reported that BCI had been without a General Merchandise Manager since April of 2004, and although this may have impacted unfavorably on sales, “[o]ver 95% of its inventory was purchased in the last year. The Company aggressively marks down inventory in order to move merchandise.” (JX 025 at 15, see also 7) KPMG identified software upgrades that would be necessary and their costs, ranging from $500,000 to over $1 million. “Management expressed that while the deficiencies of the merchandising application are not an imminent threat to the Company’s business, operation efficiencies as well as improved analysis and reporting would be improved.” (Id. at 21) KPMG noted that BCI’s assets also included a money market account and small stock portfolio. “As these investment accounts do not represent assets available on a daily operational basis, they were excluded from working capital.” (Id. at 27) As of December 2004, BCI’s working capital 12 *836 was reported at $14,533,000 and adjusted to $11,082,000. This amount was in excess of the working capital used to run the company from January 2002 through December 2004 without incurring any difficulty with vendors or other obligations. See BCI’s adjusted working capital on a monthly basis from 2002 to 2004. (Id. at 41-43)
KPMG reported BCI’s investment cash at $5,879,000 in December of 2004. While BCI’s cash investments declined from 2002 and 2003, this amount was in addition to the working capital needed to run the company. (Id. at 27 and 47)
Sun also performed its own due diligence on BCI, and in February 2005 observed: “For the FY04, the Company generated $88,227k in revenue and approximately $97k in EBITDA, adjusted for non-recurring expenses and income. Based on industry and comparable company growth assumptions, improvements in merchandising and inventory management, and reductions in SG & A, 13 SCP believes Bachrach’s EBITDA can improve significantly over the next five years.” (JX 024 at 4) Sun called the proposed deal an “Attractive Purchase Price” and stated: “In addition, a strong base of current assets (inventory and accounts receivable) provided opening excess availability (borrowing capacity) of approximately $7.0 million.” (Id. at 9) Sun noted that BCI’s recent stumbles were due to personnel issues involving poor, or lack of, merchandise management and Ed’s desire to disengage from his management role. Sun felt that its staffing “will provide Ba-chrach with the support and leadership needed to further build enterprise value.... ” (Id.) In particular, Sun noted that new management could correct recent inventory imbalances:
[T]he Company’s recent operating performance has been negatively impacted by poor inventory planning. In 2004, management underestimated strong comp store sales in the first quarter, leading to an under-inventoried position and negative comp store sales in the second quarter. In response to this error, management increased inventory purchases in the fourth quarter of 2004 and first quarter of 2005, leading to an over-inventoried position and excessive mark-downs which have reduced overall gross margins. Improved merchandise and inventory planning should restrict servred [sic] swings in working capital, improve comparable store sales performance, reduce inventory markdowns, and improve gross margins and overall profitability.
(Id. at 10)
Although Sun’s offer to purchase BCI was not contingent on any financing, Sun’s “Private & Confidential” due diligence already contemplated replacing BCI’s $7 million line of credit with $20 million, based on the strength of BCI’s assets: “The table to the right presents an estimated borrowing base at close based on the below terms as presented by LaSalle Bank. Bachrach currently maintains a line of credit with LaSalle Commercial Banking but does not draw on it. Sun Capital received a term sheet from LaSalle Retail Finance for a $20 million Senior Revolver ...” (Id. at 16)
2. Events at Closing of Sale to Sun
The parties set February 15, 2005, to close the sale of BCI to Sun. As set forth in its initial letter of intent, Sun was not interested in purchasing the two pieces of real estate owned by BCI. Therefore, on or about February 8, 2005, the Sellers formed Barsaled as an Illinois limited liability company. Barsaled, a defendant in this case, is owned by Sellers and was set *837 up to hold title to real estate formerly owned by BCI. On or about February 15, 2005, BCI conveyed One Bachrach Court in Decatur, Illinois (the “Warehouse”) to Barsaled. The value of this property was approximately $3,350,000. Similarly BCI conveyed to Barsaled property located at 357 W. Decatur Street in Decatur, Illinois (the “Mansion”). This property was later sold on August 15, 2005, for a purchase price of $420,000. Barsaled received cash at the Mansion closing in the amount of $371,871.78.
Sun also had no interest in purchasing BCI’s investment cash, 14 so in conjunction with the sale, BCI distributed to Sellers cash and marketable securities owned by BCI in an aggregate amount of $3,400,000.00. 15 The foregoing distributions to Sellers, together with some furniture and miscellaneous items, were assets that Sun did not want to purchase from Sellers. As such, Sun requested Sellers to take these items and considered those steps as part of the Stock Purchase Agreement. (JX 001 at 325, IIA) Sun was not concerned about removing the investment cash from the company because BCI was generating cash, paying its obligations as they became due, and had substantial additional borrowing capacity to meet its obligations. (Leach Dep. Tr. at 11-112)
After excluding these assets, the purchase price for BCI was fixed at $8 million. Auditors indicated this purchase price was about $5 million below the historical book value of BCI’s assets. (Seiler Dep. Tr. at 65, 67) Sellers would receive $4 million cash at closing, 16 subject to a working capital adjustment up or down to be agreed on later, minus an escrow and closing fees, plus a $4 million subordinated note. The buyer and maker of this subordinated note was Bachrach Clothing Holding Corp. (“Holdings”), a Delaware corporation formed by Sun to hold BCI’s stock. As part of the deal, Sellers received 7.5% of the shares of Holdings. The majority and remainder of Holdings’ shares were owned by Sun Bachrach, a Delaware limited liability company, also formed by Sun Capital Partners in connection with the sale. Tab 11 to the Closing Binder, entitled “Closing Sequence and Flow of Funds Memorandum,” dated February 15, 2005 (the “Flow of Funds Memo”), details how the Sun entities acquired BCI with very little contribution of their own capital. (JX 001, Tab 11, p. 32k) Ed Bachrach, representative of the Sellers, testified that he did not see the Flow of Funds Memo until the end of the closing, and:
Q. What input did you have into the contents of this document?
A. Zero.
Q. Is that the same answer for your sisters?
A. Yes.
Q. When is the first time you saw this document?
A. I saw it at the closing when — it was one of the last things that I saw when we were — I was signing the different documents in the closing.
(Trial Transcript, Vol. 1 at 65)
Nothing in the record contradicted Ed’s testimony that the Sellers were unaware of how Sun and/or Holdings planned to fund *838 purchase of the business. Ed further testified:
Q. My question is, what was your role in structuring it and doing the paperwork for it and figuring out where the money was coining from and all that?
A. None.
Q. Okay. How was this money — this 3.1 million, how was it paid to you? A. It was wired to our account.
Q. Wired by whom to whose account? A. It was wired by the seller to our bank accounts.
Q. And when you say seller, who do you mean?
A. I mean the buyer.
Q. When you say buyer, who do you mean?
A. Sun Capital Partners.
Q. Okay. You distinguished — at the time of closing, were you distinguishing between Sun Capital Partners and Sun Bachrach and Bachrach Clothing Holding Company and the new BCI? Were those distinctions that were being made?
A. I wasn’t making those distinctions.
Q. Okay. Did you have any role in determining how mechanically this money would be sent to you? And by that I mean whose accounts — anything about the structure of how money physically got to you?
A. No.
Q. I presume the buyer did.
(Id. at 66-68)
The Flow of Funds Memo occupied pages 324-332 of 684 pages of closing documents presented to the Sellers on February 15, 2005. (JX 001) The Flow of Funds Memo reveals that two Sun Capital Partners III entities transferred a total of $2 million to Sun Bachrach, LLC, in exchange for all of the membership or equity interest in Sun Bachrach. Sun Bachrach then contributed the $2 million to Holdings. Five hundred thousand of the $2 million was for Sun Bachrach’s purchase of all of Holdings stock except for the minority 7.5% interest held by Sellers. The remaining $1.5 million was a loan by Sun Bachrach to Holdings, as evidenced by a promissory note made by Holdings in favor of Sun. (JX 001 at 326-327) On the day of the closing, Sellers loaned Holdings $1,969,295.89 of the cash due to Sellers at closing. (Id.) Immediately after Holdings acquired BCI, Sellers were replaced as directors of BCI by two Sun executives, Lynn Skillen and Kevin Calhoun. These new directors caused BCI to borrow $2 million from Harris Bank. This loan was guaranteed by Sun. The new directors then immediately declared a dividend from BCI to Holdings in the amount of $1,969,295.89. The new directors concluded that BCI was solvent at the time of the dividend, which was February 15, 2005. (Id. part TV. at 675) Ed did not see this declaration of dividend document until after BCI brought this lawsuit against him and his sisters. (Trial Transcript, Vol. 1 at 86)
Sun saddled BCI with $2 million in debt so it could upstream the money to Holdings. Holdings then used the Harris loan proceeds to pay off the $1,969,295.89 note to Sellers 17 as well as management and acquisition fees to Sun. Notwithstanding the $8 million purchase price, Sun managed to satisfy that commitment with a mere $500,000.00 of its own capital and a $1.5 million loan to Holdings. Sellers financed the balance of the sale by accepting a $4 million note from Holdings, which was subordinate to other debt, including Holdings’ $1.5 million debt to Sun Bachrach.
The sequence and flow of funds at this closing was directed, orchestrated and coordinated by Sun-controlled entities and their attorneys. Sellers were not involved *839 in Sun’s idea to burden BCI with a big chunk of the purchase price or any of Sun’s plans as to how it was going to structure the deal. (Testimony of Ed Ba-chrach, Trial Transcript Vol. 1, at 83-85) Indeed, Sellers had every reason to believe they were transferring their family business to a powerful group with the financial muscle and expertise to support BCI, which had thrived for over a century. See, e.g., Ed’s testimony regarding Sun’s letter of intent:
Q. In paragraph 2, Sun represents in this letter of intent that it was a $500 million investment fund. Do you see that?
A. Yes.
Q. Was that representation significant to you?
A. Yes.
Q. Can you explain to the court and me what the significance of that representation was to you?
A. That meant two things: It meant that they had the funds to make the acquisition, and they also had the funds to operate the company afterwards.
(Testimony of Ed Bachrach, Trial Transcript Vol. 1, at 82)
During his deposition, Ed also testified that he was not specifically aware that Sun intended to use bank debt to fund BCI’s operations. (Bachrach Dep. Tr. Vol. 1 at 199-200) Not a single witness contradicted Ed’s testimony that he and his sisters played no role in Sun’s acquisition tactics. 18 Ed was ready to exit the business. Sun was the only game in town — and in charge.
3. Events After BCI Sold to Sun
None of the Sellers remained directors of BCI after the closing. Although the evidence establishes that Ed planned to eventually withdraw from active management, it was unclear what his immediate post-closing role was supposed to be, particularly before Sun selected a new CEO. Ed testified that on the day of the closing, he asked Scott King, head of Sun’s operations, what Sun wanted him to do. King replied, “[S]tay in your position and just keep running the company as you have been. And that’s all he told me.” (Id. at 86-88) Nevertheless, after the sale, Ed was not included in the BCI officers and/or directors who could arrange borrowings and execute notes on behalf of BCI. (Id. at 90) That was reserved primarily for Sun employees. Before the closing, Ed answered only to himself. After the closing, he reported to Scott King and was not involved in any post-closing borrowings by BCI. (Id. at 91) King had experience in retail but not men’s clothing. (Woelcke 2009 Dep. Tr. at 118)
Gerald Woelcke, a Sun vice president of operations, became directly responsible for overseeing Sun’s investment in BCI after the closing. Woelcke also had no experience in men’s retail clothing. (Testimony of Ed Bachrach, Trial Transcript Vol. 1, at 106; Woelcke 2009 Dep. Tr. at 29-30) In fact, neither of Sun’s principals nor any of BCI’s new directors had experience in a men’s retail clothing store. (Woelcke 2009 Dep. Tr. at 80, King Dep. Tr. at 12) King and Woelcke interviewed Sheila Arnold for the CEO position at BCI. King had the final say to hire Arnold and Ed was not consulted on that decision. Arnold joined *840 BCI as CEO in mid to late April 2005. (Testimony of Ed Bachrach, Trial Transcript, Vol. 1 at 108) Arnold had been head of merchandising at Sunglass Hut. Arnold also had no experience in men’s retail. (King Dep. Tr. at 97 and 99; Arnold Dep. Tr. at 117) Ed offered to transition Arnold into the business but she did not accept his help. Instead, about 9 days after joining BCI, Arnold told Ed that May 3, 2005, would be his last day with the company. (Testimony of Ed Bachrach, Trial Transcript, Vol. 1 at 108-109) William Lee, 19 BCI’s director of planning and allocation for nearly five years, testified that Arnold’s knowledge of menswear appeared limited:
Q. Was there anything that she said or did that made you wonder about her experience?
A. In one of our early projection meetings we were discussing men’s suits, and we were discussing the styles of suits. And the point came up that this suit had side vents, and she said, what are side vents. And I stood up and said, well, you know, these are side vents. There’s only side vents, center vent, or no vent. It struck me as kind of odd that a head of a menswear company would not know something as basic as that.
Q. That is pretty basic knowledge for the industry?
A. There’s only three. I would think every guy would know that.
Q. When she came, did she take any actions that you thought were bad ideas?
A. Well, she immediately got rid of Robert and Ed. And I — thought, you know, they were the two most knowledgeable people. They certainly had years of history at the company.
(Id. at 55-56)
Although Ed recommended that Robert Greening be replaced as BCI’s acting merchandise manager (hoping this would improve BCI’s inventory balances), Arnold’s rapid termination of both Ed and Robert left a vacuum of knowledge. King, who hired Arnold, certainly thought Ed’s input post-sale would be valuable. (King Dep. Tr. at 60, 67) Nevertheless, Arnold was uncomfortable with Ed, whom she felt was spending too much time poking around the business and second guessing her decisions. King let her make the call to remove Ed from the business, as she was the new CEO. (Id. at 101,-107; Arnold Dep. Tr. at 13) While the position of merchandising manager was critical, Arnold left it open for almost two months until she hired Larry Schechterman in June. (Testimony of Larry Schechterman, Trial Transcript, Vol. 2 at 11) Ed felt Larry was a poor choice as he had interviewed him in the early 2000s twice for merchandising manager and did not think he could do the job. (Testimony of Ed Bachrach, Trial Transcript, Vol. 1 at 113-111; 206-207; Testimony of Larry Schechterman, Trial Transcript, Vol. 2 at 16) In fact, in the last ten years up to Schechterman’s testimony at trial, he had occupied seven jobs; one of which he left involuntarily. (Id. at 18)
After Ed and Robert exited BCI, and after running BCI for only a few weeks, Arnold decided to mark down BCI’s store and catalogue inventory roughly $7 million more than the amount budgeted for the May 2005 month markdown. (Testimony of Ed Bachrach, Trial Transcript, Vol. 1 at 115) This markdown was 285% more than was budgeted for markdown during that month. In her history as BCI’s CFO, *841 Kristin Sowa had never seen a markdown that varied so much from budget. This markdown was Arnold’s decision; Ed was gone and had no role in the markdown. Sowa stated that “Sheila shut off his e-mail address so that we would not communicate with him or issue reports to him after she arrived.” (Dep. Tr. of Kristin Sowa, Vol. 2 at 180) It would be very difficult for BCI to survive such a massive hit. (Id. at 166, 203) Moreover, there was no urgent necessity to take such a drastic markdown all in the month of May, as William Lee testified:
Q. How much of a markdown was built into the budget for May 2005?
A. Plan was 1.7 million.
Q. How would you describe that in comparison to the budget?
A. It’s nowhere near the budget. I mean, it’s not even in the same ball park.
Q. Do you recall any reason that it was urgent that 'the markdown be taken right then?
A. No.
Q. That a markdown be taken right then?
A. No.
Q. Do you recall whether it was necessary that the markdown be taken all at the same time?
A. No.
(Testimony of William Lee, Trial Transcript, Vol. 5 at 61) Indeed, Ed made an effort to cut substantial fat out of the inventory in December 2004, before he sold BCI to Sun in February 2005. He took an actual markdown of $6.8 million compared to a budgeted markdown of $8.8 million. (Testimony of Ed Bachrach, Trial Transcript, Vol. 1 at 263-264.)
There was nothing unusual about BCI’s inventory when Arnold made her decision to markdown such an extraordinary amount just a few weeks after joining BCI, and no one from Sun had raised any concerns about the inventory to Ed. (Testimony of Ed Bachrach, Trial Transcript, Vol. 1 at 104; Testimony of William Lee, Trial Transcript, Vol. 5 at 53-54) Testimony that BCI’s inventory was too old was based solely on second hand knowledge. Larry Schechterman was not employed when the markdown was taken and his comment that BCI repacked and stored old merchandise was not based on firsthand experience. (Testimony of Larry Schechterman, Trial Transcript, Vol. 2 at 51) Schechterman was particularly unconvincing in light of William Lee’s testimony that it is much more expensive and impractical to store merchandise than to mark it down for sale. As a result, BCI did not generally repack and store out of season merchandise. 20 (Testimony of William Lee, Trial Transcript, Vol. 5 at 48-52) Lee was directly involved while Schechterman was not. King asserted that BCI had the habit of re-boxing old inventory like sweaters but he also testified that he relied on Lee’s assessment of the inventory situation. (King Dep. Tr. at 88 and 124) The only witness presented in court who was directly involved was Lee and he contradicted the re-packing rumors repeated by King, Woelcke and Schechter-man- — all of whom had no direct knowledge. 21 Additionally in its due diligence on *842 BCI, KPMG reported: “Over 95% of its inventory was purchased within the last year.” (JX 025 at 10) In general, BCI may have stored some merchandise for the next year’s season, but it was an insignificant amount, which consisted of basics that rarely went out of style. More importantly, it was no secret that BCI had some inventory issues in the years before the sale and that is exactly why Sun thought new management could improve performance. (See Sun’s due diligence JX 02k at 10)
Arnold’s decision to take such a massive markdown was consistent with bringing a new vision to, or re-branding BCI. In her deposition she stated that she decided what to mark down by looking at styles of clothing. (Arnold Dep. Tr. at 168) She did not define obsolete inventory as items in storage but rather “[i]nventory that you don’t want in your inventory anymore.” (Id. at 166) She worked primarily with Lee in making the markdown decisions. Lee’s testimony was adamant that BCI’s inventory was not too old or in storage. Arnold’s presentations to Sun certainly reflected that she planned to change the style or type of merchandise offered by BCI: “2005 Review-Initial Findings-Brand positioning not clear” (JX 005 at 781) and “2006 Overview-Merchandise Focus-Introduction of merchandising new looks across all categories ” (JX 007 at 881, emphasis added) Prior to taking the massive May 2005 markdown, Arnold testified she ran her plan by Scott King of Sun:
Q. Who did you speak with about it?
A. Scott King.
Q. What did you tell him?
A. I went through my evaluation and what we were planning to do and to let him know it was a huge markdown and it was going to have a big impact on the business and I wanted to make sure he was comfortable with the decision.
(Arnold Dep. Tr. at 169, emphasis added)
Despite Arnold’s position as CEO of BCI, she paid little attention to the line of credit BCI/Sun had secured from Harris and LaSalle. “Q. Did you pay attention to the availability of the line, the lending line? A. Not on a regular basis.” (Arnold Dep. Tr. at 105) She did not recall receiving regular reports on lending availability. (Id. at 110) Generally, she left such matters to Kristin Sowa and Gerald Woelcke. Overall, Arnold’s memory of what occurred during her leadership tenure at BCI was scant. However, Sun personnel Woelcke and Jason Leach acknowledged that the huge May markdown reduced BCI’s inventory and ability to draw on bank credit. (Woelcke 200k Dep. Tr. at 158-157; Woelcke 2009 Dep. Tr. at 98-101; Leach Dep. Tr. at 116-118) Leach, who handled much of the credit arrangements Sun set up for BCI, observed that the almost immediate reduction in financing availability was not expected when the business was purchased. (Leach Dep. Tr. at 120-121) This court agrees with Defendants that: “[Arnold] obviously did not appreciate the importance of borrowing availability, or how the markdown would affect it. Between April 30 and June 30 [2005], BCI’s borrowing base dropped from $4.32 million to $1.3 million. (JX 17 at BACH-D17kk; JX 13 at BACH-D1698) Arnold’s markdown wiped away almost $3 million of BCI’s working capital.” (Bachrachs’ Post-Trial Brief at 30)
Arnold made other decisions that compounded the cash squeeze. She reduced the number of pages contained in BCI’s *843 clothing catalogue and reduced the circulation. Although it was unclear who hired a part time DJ to re-design BCI’s web site, 22 it was undisputed that the new site went online during Arnold’s tenure. 23 All agreed the new site was a disaster and eventually BCI returned to its old website. These decisions significantly reduced sales and profit margins in BCI’s catalogue and internet categories. Defendants also established that Arnold reduced inventory orders for holiday merchandise which further depressed BCI’s sales. (See citations to testimony in Bachrachs’ Postr-Trial Brief at 30-32)
Sun’s decisions also added to BCI’s liquidity crunch. When CFO Kristin Sowa asked how new management wanted to handle BCI’s long-term incentive plan, Arnold and Woelcke decided to terminate it, which generated a $1 million charge in 2005. (Sowa Dep. Tr. Vol. 2 at 187-191) Sun also assessed BCI a recurring management fee of $100,000 per quarter (DX 153) and the costs of purchasing BCI, including due diligence and attorneys’ fees. (DX 10)) CFO Sowa identified $550,000 paid by BCI to Sun for the period of February 14th to March 31st 2005. (Id. at 170-171) Also in 2005, Sun caused BCI to assume over $800,000 in Kirkland and Ellis legal fees relating to the Sun purchase of BCI and setting up bank lines of credit. (DX 102, 103, and 152) BCI had never incurred anything close to this in legal fees prior to the sale, and Ed testified that such large bills would have an impact on BCI’s business. (Testimony of Ed Bachrach, Trial Transcript, Vol. 1 at 129-120) Arnold testified that even $100,000 is a substantial amount of money to a company the size of BCI. (Arnold Dep. Tr. at 159) Yet, these extraordinary costs totaled over $3 million in 2005. The court agrees with Defendants’ conclusion: “In the wake of a leveraged buyout, Sun caused 30 times that amount to flow out of the company, mostly for its own benefit.” (Bachrachs’ Postr-Trial Brief at 33)
In contrast to Sun, the Sellers actually contributed to BCI’s liquidity following the sale. In setting the purchase price, the parties agreed that if BCI’s working capital exceeded the target amount of $10,235,000.00, Sun would pay more, but if actual working capital was less than the target amount, Sellers would refund an amount equal to the difference. This adjustment was agreed to because Sun wanted Sellers to take the excess cash out of the business. An audit would follow to assure that BCI retained sufficient cash for its operations. Following the sale, Woelcke presented a detailed working capital analysis to Ed, requesting a refund of $1,245,536.78. (DX at 0)1) Ed disagreed with the number, but in late summer of 2005, the Sellers returned $545,480.54 of the BCI cash to resolve the working capital adjustment. (Testimony of Ed Ba-chrach, Trial Transcript, Vol. 1 at 13)) Just as Sun preferred to minimize the purchase price of BCI by not buying its excess cash, Sun elected to lease BCI owned real estate instead of buying it. When fixing the rent to be paid to Bar-saled, which held title to real estate formerly owned by BCI, Ed made a million dollar math error in favor of BCI/Sun for each year of the lease. Sun refused to pay more rent, so Ed honored his original proposal and gifted BCI a substantially below market lease. (Testimony of Ed Ba-chrach, Trial Transcript, Vol. 1 at 81)
*844 In summary, the decisions made by Sun/Arnold after Ed’s departure exhausted BCI’s borrowing availability much sooner than expected. Arnold rapidly changed BCI’s course without regard to the effect on its borrowing base. Arnold testified she paid no or little attention to BCI’s lines of credit when she took the massive May markdown. There was no evidence that it was necessary for BCI to absorb this colossal hit so early and all at once. Indeed, Lee testified quite the opposite. 24 At the same time, other decisions reduced BCI’s revenue, such as cutting back on catalogue pages and circulation and adopting a new website which did not work. Sun’s election to invest very little equity at the time of purchase, while charging BCI over a million dollars in due diligence and attorneys’ fees for the acquisition, and an annual $400,000 management fee, also stressed BCI.
Sun asked Sellers to keep the real estate and lease it back to BCI. Contrary to BCI’s assertion that the new rental payments added to its burden, this feature was really a wash given the way Sun structured the purchase. For example, if the real estate was worth $4 million, the purchase price of BCI would have increased by that amount. Instead of having BCI borrow $2 million from Harris to fund Sun’s acquisition, it is likely Sun would have caused BCI to borrow an additional $4 million for the real estate. Higher interest payments to Harris would have been made in lieu of lease payments to Barsaled. Given Ed’s million dollar annual lease payment error in favor of BCI/ Sun, Sellers’ retention of the real estate actually benefited BCI’s creditors. In all likelihood BCI would have borrowed $4 million more from Harris and Sun’s later purchase of the Harris loan would have resulted in a “secured” claim $4 million higher. A similar analysis applies to the excess cash withdrawn by Sellers because Sun did not want to buy cash.
4. Sun’s Responses to BCI’s Liquidity Needs
Provided there is a likelihood of success, Sun injects capital into its companies. (Woelcke 2009 Dep. Tr. at 195) Sun Ba-chrach made its first additional investment in BCI on December 29, 2005, when it purchased the $2 million bank loan Harris made to BCI in July 2005, which Sun had guaranteed. (JX 62-63) Next, in March and April of 2006, about a year after the purchase of BCI, Woelcke informed Ed that Sun was going to make an additional equity investment in BCI. He told Ed and his sisters that their stock interest would be diluted if they did not also contribute. Ed and his sisters did not participate in Sun’s offer. (Woelcke 2009 Dep. Tr. at 124-126) Sun employees originally considered the additional capital it gave BCI as an equity investment. (Id. at 168-169; Woelcke 2004 Exam Tr. at 128-130; Sowa Dep. Tr. Vol. 2 at 195-197) However, BCI’s CFO Kristin Sowa ultimately executed a $5 million secured note in favor of Sun Bachrach. Two million of the note’s obligation represented Harris’ assignment of its BCI loan to Sun Bachrach and the remaining three million was new dollars invested in BCI by Sun Bachrach. (Woelcke 2009 Dep. Tr. at 124,-126; Sowa Dep. Tr. Vol. 2 at 192-193)
Although the $5 million note was dated March 3, 2006, Ms. Sowa did not execute it *845 until much later in May — a few days after Sun began discussions about putting BCI in bankruptcy. (Woelcke 2009 Dep. Tr. at 127-13; Sowa Dep. Tr. Vol. 2 at 199-201) Once Sun decided to stop funding BCI, it “papered over” its equity investment by having Sowa sign the note in May of 2006. This note incorporated all the terms of the Harris loan agreement with BCI and reflected Sun’s investment in BCI of $5 million. (DX 13; Woelcke 2001 Exam Tr. at 132-134) By purchasing the Harris note and increasing BCI’s debt to cover the additional $3 million contribution with a back-dated note, Sun Bachrach converted most of its capital contribution into a secured claim. (JX 063) Shortly after Sun Bachrach elevated its investment to a position ahead of BCI’s unsecured creditors, Sun’s principals decided to pull the plug on BCI. BCI filed bankruptcy a few weeks later on June 6, 2006.
Arnold believed that Sun gave up too soon and should have invested more capital. They did not permit her to implement the changes that she felt would make BCI a success and instead instructed her to file bankruptcy. (Arnold Dep. Tr. at 178-180) The co-CEO of Sun Capital, Marc Leder, apologized to Arnold for abruptly ending the funding to BCI. (Id. at 219-221) Sun was in a position to invest more into BCI if it wanted to. (Woelcke 2009 Dep. Tr. at 70-71) Leder never complained to Ed that BCI failed due to insolvency or lack of working capital. Instead he agreed that BCI was mismanaged and told Ed he was sorry. (Testimony of Ed Bachrach, Trial Transcript Vol. 1, at 140-141) 25
Prior to the filing of this action, no one even suggested that BCI was insolvent or lacked funds to pay its debts as they became due. Sun personnel believed that BCI was solvent and had adequate working capital at the time of the sale. (King Dep. Tr. at 167-168; Leach 2004 Tr. at 110-113; Woelcke 2009 Dep. Tr. at 20-23). BCI’s CFO Sowa, a Certified Public Accountant, testified that BCI was solvent at the time of the sale and could pay its debts as they became due. (Sowa Dep. Tr. Vol. 2 at 160-163) As a CPA she also signed a certificate that BCI was solvent on March 29, 2005, and testified that BCI was also solvent on the date the sale closed. (Id. at 174-175) BCI auditors McGladrey and Pullen noted that BCI “... had adequate financial backing from new owners ...” and its current assets exceeded its liabilities by at least $5,600,000.00 as of the sale date. (Seiler Dep. Tr. at 117, 103-104) 26 Shortly after the sale, LaSalle Bank provided BCI a $20 million line of credit (Stipulations of Fact for Trial ¶ 89), and many months after the sale, on July 12, 2005, Harris gave BCI an additional $2 million line of credit. (Id. ¶ 94) At trial debtor did not offer any testimony from its turnaround consultant, Alliance Capital Management, that BCI was insolvent or undercapitalized at the time of the sale. The only evidence presented to support such financial stress was the hindsight testimony of Craig Elson, an expert hired by the estate after this case was filed, and compensated nearly a million dollars for his team’s work.
*846 In short, no facts or “real world” evidence support the assertion that BCI was insolvent or undercapitalized at the time Sellers sold it to Sun, even assuming sales were declining or it was using some cash reserves. Instead, BCI had no long term debt, was current on payables, and held substantial cash in excess of needed working capital. Sun asked Sellers to keep the real estate and excess cash to reduce the purchase price. Since Sun typically acquires companies through leveraged buy-outs, 27 the lower purchase price more than likely reduced the amount of debt Sun would have caused BCI to incur. This was a rational strategy devised by Sun. The Sellers were not involved in structuring the deal this way. It was all Sun’s call and made sense. What did not make sense was to freeze Ed out of the business just a few days after Arnold came on board, particularly when neither she nor any Sun employee involved had experience in menswear retail. Even if Arnold wanted to radically change the style of clothing offered, taking an immediate, huge markdown in one month, without regard to BCI’s borrowing availability, was reckless. Other decisions that reduced sales and accelerated liabilities were also unwise. At some point, Sun decided BCI’s new management was not going to turn BCI into an asset that Sun could resell for a big profit within its time frame. So, after converting its investment into a secured claim, Sun cut off further funding. Sun/Arnold created BCI’s liquidity crisis and Sun’s refusal to provide further capital led to this bankruptcy. The Sellers delivered a solvent and properly capitalized company at closing. They had every reason to believe, and Ed so testified, that the financial strength of Sun would ensure BCI’s survival.
5. Bankruptcy Proceedings
BCI’s Chapter 11 petition was filed on June 6, 2006, more than a year after the sale to Sun Bachrach. Arnold executed the petition. Sun’s control continued in this bankruptcy. The schedules treat Sun’s claim very favorably. Schedule D lists LaSalle’s line of credit in the amount of $4,628,658.00 and an unsecured amount of “unknown.” Sellers’ subordinated note is listed as “0” and unsecured amount as “unknown.” However, Sun Bachrach’s claim is portrayed as fully secured in the amount of $5,141,643.84. This “secured claim” is what a Sun employee characterized as an equity investment until shortly before BCI’s bankruptcy. The Statement of Financial Affairs reflects that Sun employees Woelcke and King were BCI’s directors at the time of filing. (¶ 21) One day after filing its petition, BCI filed an emergency motion for use of cash collateral, contending that both LaSalle and Sun Bachrach were secured but that Sellers’ subordinated claim was not. Although BCI’s motion questioned Sellers’ lien, it mentioned nothing about Sun Bachrach’s backdated note, which converted its investment, initially referred to as equity, into a secured claim in May 2006. (Docket # 7)
A few days later, on June 9, 2006, BCI asked this court to approve the employment of Alliance Capital Management to assist the Debtor with its restructuring. BCI noted that Alliance had been working prepetition with BCI and received a retainer, which had not been completely used. The engagement letter, attached as Exhibit B to the motion, indicated that Alliance was retained in May, the same month the $5 million BCI note to Sun Bachrach was backdated and signed by *847 BCI CFO Sowa. The letter also clarified that Alliance was subject to the direction of Woelcke, a Sun employee. “Consultant shall receive general direction from Mr. Gerald Woelcke and Ms. Sheila Arnold.” (Docket # 21, Exhibit B, ¶ 7, 1.0)
Not surprisingly, in the June 7, 2006 order granting motion to use cash collateral, BCI stipulated that Sun Bachrach had a fully secured claim in an approximate amount of $5 million “plus”. (Docket # 28, ¶¶ kr-n) 28 As a result, the order granted LaSalle and Sun Bachrach veto power over BCI’s ability to spend any money along with the right to receive daily expenditure reports. (¶ 18) Until LaSalle and Sun Ba-chrach were paid in full, BCI had no right to obtain other secured credit. (¶ 28) While the order gave a trustee or committee a limited investigation period to evaluate claims of LaSalle (60 days) and/or Sun Bachrach (100 days), it also stated that no cash collateral could be used to prosecute a claim against Sun Bachrach. (¶ 61 and ¶46) Moreover, if the objector lost, La-Salle and/or Sun’s attorneys’ fees in defending any lawsuits broadly defined as arising out of or relating to their claims would become an administrative claim against the estate. (¶ 62) This order, entered one day after BCI filed its case, gave Sun extraordinary leverage over any committee that would be appointed. No estate funds could be used to challenge Sun Ba-chrach’s “secured” claim, and if any committee or trustee filed suit relating to such a claim (for example — a fraudulent transfer action) and lost, all of Sun Bachrach’s attorneys’ fees would be paid before unsecured claims. At the time the order was entered, no committee had been formed 29 and Sellers’ counsel did not enter their appearance until June 27, 2006.
In return for LaSalle and Sun Ba-chrach’s agreement to permit BCI to use cash collateral, BCI agreed to quickly put its assets up for sale. A motion to approve bidding procedures was filed on June 13, 2006. In this motion BCI insisted Sun Bachrach was fully secured but argued Sellers were not. (Docket # k0, p. 18 fbn. 2) The newly appointed Committee filed an objection, arguing that the sale was being *848 run for the benefit of LaSalle and Sun Bachrach only, was happening too fast, and that Sun Bachrach was an insider whose secured claim might be recharacter-ized as equity.
On or about June 30, 2006, several companies (“Joint Venture”) were selected at auction to act as agent to sell BCI’s merchandise, which was authorized by order of this court on July 10, 2006. (Docket # 126) Exhibit 1 to that order contained the agency agreement whereby the Joint Venture would essentially run a “going out of business” sale for BCI. A final cash collateral order was also entered on July 6, 2006, which repeated BCI’s stipulation that Sun Bachrach held a fully secured claim and gave the Committee 120 days to investigate that claim, but blocked the use of cash collateral to prosecute any claim against Sun Bachrach and extended an administrative priority for its attorneys’ fees if Sun’s secured claim was unsuccessfully challenged. The same provisions controlling Debtor’s budget were implemented. (Docket # 139)
On July 14, 2006, Sellers filed a motion requesting adequate protection of their subordinated lien. (Docket # 160) On July 25, 2006, Sellers also objected to BCI’s intent to pay off Sun Bachrach’s lien with sales proceeds, noting that the investigation period on Sun’s claim had yet to expire. (Docket # 17k) Sellers withdrew their objection (Docket # 180) in light of certain provisions added to the Amended Final Cash Collateral Order on July 27, 2006, including extension of the challenge deadline. In that order, BCI stipulated that Sun Bachrach held a valid and perfected secured lien, subject to the specific challenge provisions in paragraphs 61-63 of the order. Paragraph 22 provided that BCI pay Sun Bachrach no less than $2,179,577.00 on account of its prepetition claim in three days, with additional payments as BCI accumulated funds. (Docket #182)
While many of the Amended Final Cash Collateral Order’s provisions appeared in prior cash collateral orders, paragraph 45 introduced a subordinated carve-out for unsecured creditors. Essentially, Sun Ba-chrach agreed to pay unsecured creditors up to a million dollars if Sun’s allowed secured claim equaled $5,570,000.00 or more. Paragraph 46 continued the provision that the carve-outs could not be used to prosecute a claim against Sun Bachrach. To complete the deal, on October 5, 2006, Sun Bachrach requested this court to liquidate the amount of its secured claim. Its motion indicated that before the sale to the Joint Venture, BCI’s cash was $2,100,000.00. On July 14, 2006, BCI received $9,585,858.00 from the Joint Venture and another payment of $1,167,339.63 on August 2. (Docket # 227, ¶ 11) LaSalle was paid in full with $4.9 million of the Joint Venture sale proceeds. (¶ 12) Sun Bachrach also disclosed that to date, it had received payments from BCI totaling $3,477,422.63. (¶ lit) Sun argued that it was oversecured and thus entitled to interest on its claim. Sun also pointed out that pursuant to its sharing agreement, the unsecured creditors get nothing unless Sun Bachrach’s claim was fixed at $5 million or more. Sun’s motion also referred to Sellers’ claim and stated that if BCI or the Committee did not challenge it, Sun would. 30 (¶ 12, ftn. It) Sun Bachrach’s claim was fixed in the amount requested, subject to the ability to challenge the secured nature of the claim.
*849 After repeated extensions of the challenge period, the Committee, Sun Ba-chrach and BCI reached a settlement. Filed on November 12, 2007, the settlement motion reported that $782,473.90 was held by the Committee for unsecured creditors, which came out of the $4,895.453.00 that BCI paid to Sun Bachrach. The Committee stated that while it believed it had a “colorable” claim against Sun, it was mindful of the costs of litigation” 31 and Sun had agreed to sweeten the sharing arrangement or “Subordinated Carve-Out.” The motion explained that, for example, if Sun received $6 million from the estate, the unsecured creditors would get $1.75 million back from Sun. (Docket #488) In the order approving settlement, the Debt- or and the Committee covenanted not to sue “any of the Sun Entities and their direct or indirect partners or affiliates” or former officers, directors and employees, collectively referred to as the “Sun Parties”. But — “To be clear, none of Edgar Bachrach or any member of his family, whether individually or as Collateral Agent, is included in the definition of “Sun Parties.” (Docket # 524, Exhibit 1, ¶ 10, pp. 8-9)
Sun controlled BCI’s bankruptcy so effectively that BCI’s Chief Restructuring Officer, Larry Schechterman, hired by Alliance Management (which reported to Sun), had no idea why he agreed not to sue the Sun Entities:
Q. Why did the debtor give a release to the Sun entities in this matter for any cause of action against it?
A. I don’t recall.
Q. What did the debtor receive in return for this covenant?
A. I don’t recall.
Q. Why did the debtor carve out Ed Bachrach and his family from the release?
A. I don’t recall.
Q. Did you at some point know?
A. I don’t recall.
Q. You don’t recall if at some point you knew?
A. Correct.
Q. Okay. So you, as the face, as the chief restructuring officer at Bachrach Clothing, Inc., it’s your testimony under oath that you have no idea why the debtor gave a release to the Sun entities for no consideration in return; is that about right?
A. Correct.
(Testimony of Larry Schechterman, Trial Transcript, Vol. 2 at 44-45)
Sellers, who had yet to be sued, did not object to the settlement, possibly because their ability to challenge Sun’s claim was preserved. 32 Nevertheless, one trade creditor, in a letter complaining about Sun’s secured claim, dated January 5, 2007 (Docket #817), succinctly described Sun’s successful tactics:
Your Honor,
We are trade creditors in this case. We understand that Sun Bachrach, LLC has filed a secured claim in this case for at least $5,463,554.70.
We wish to object to the amount and nature of this claim. As trade creditors *850 we were induced to extend credit to Baehrach Clothing, Inc. under the impression that Sun Bachrach’s infusion of money represented a capital contribution. We would not have extended credit had we known that these monies were advances to be repaid at a later date. It appears that Sun Baehrach is attempting to take two bites from the same apple. If Baehrach Clothing became profitable they would profit from their investment. If it failed they would get all their money back as secured creditors.
We hope that you will take our objection into consideration when making your decision.
Very truly yours,
Paul Levin
Chief Financial Officer
Cullen, Inc.
(emphasis added)
Sun’s final step was to encourage BCI to use most of the remaining estate funds to sue Sellers and Barsaled. After all, in its motion to liquidate the amount of its secured claim, Sun threatened that if BCI or the Committee did not sue Sellers, Sun would. A victory here would effectively refund to Sun its entire investment in BCI — after Sun ran it into the ground. This refund would come at the expense of Sellers who delivered BCI to Sun with assets in excess of liabilities and debt free. Sun positioned itself to pay very little for BCI by requesting Sellers to keep excess cash and real estate. 33 Following this reduced purchase price, Sun continued to minimize its risk by loaning money to BCI and Holdings instead of making capital contributions. Sun, not Sellers, loaded BCI up with debt and liabilities. It brilliantly had two bites at the apple: big profits if it improved BCI’s performance and a refund if it failed.
Conclusions of Law
1. Fraudulent Transfer Elements and Burden of Proof
Debtor’s complaint alleges avoidable fraudulent transfers by generally referring to § 548 of the Bankruptcy Code and Illinois’ Uniform Fraudulent Transfer Act (740 ILCS 160/5 and 160/6). The Complaint did not allege any conscious or intentional effort by Defendants to defraud BCI’s creditors, and there was no evidence at trial proving such intent. Debtor instead relies on the “constructive” fraudulent transfer provisions of both acts. The Bankruptcy Code provides in part:
§ ’548. Fraudulent transfers and obligations
(a) (1) The trustee may avoid any transfer (including any transfer to or for the benefit of an insider under an employment contract) of an interest of the debt- or in property, or any obligation (including any obligation to or for the benefit of an insider under an employment contract) incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily—
(A) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to *851 which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or
(B) (i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(ii) (I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation;
(II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital;
(III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured; or
(IV) made such transfer to or for the benefit of an insider, or incurred such obligation to or for the benefit of an insider, under an employment contract and not in the ordinary course of business.
(c) Except to the extent that a transfer or obligation voidable under this section is voidable under section 544, 545, or 547 of this title [ 11 U.S.C. §§ 544 , 545, or 547], a transferee or obligee of such a transfer or obligation that takes for value and in good faith has a lien on or may retain any interest transferred or may enforce any obligation incurred, as the case may be, to the extent that such transferee or obligee gave value to the debtor in exchange for such transfer or obligation.
Subsections (a)(l)(B)(i) and (ii) of the Bankruptcy Code are applicable here. Essentially, BCI’s transfers to Sellers may be avoided if BCI did not receive something of reasonably equivalent value, and if the transfer was made while BCI was insolvent, or the transfer rendered BCI insolvent or left BCI undercapitalized. The same tests are at play in the Illinois provisions, which state in part:
§ 740 ILCS 160/5. [Transfer or obligation; creditor’s claim arising before or after transfer]
Sec. 5. (a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or
(2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:
(A) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
(B) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.
§ 740 ILCS 160/6. [Transfer or obligation; creditor’s claim arising before transfer]
Sec. 6. (a) A transfer made or 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 debtor was insolvent at that time or the debtor became insol *852 vent as a result of the transfer or obligation.
(b) A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent.
The constructive fraud subsections of the Illinois statute consist of 740 ILCS 160/5 (a)(2) and 160/6(a), quoted above.
Distilling both statutes down to the issues disputed in this case, BCI had the burden to prove: 1) It made a transfer for which it did not receive reasonably equivalent value; and 2) the transfer was made while BCI was insolvent or rendered insolvent by the transfer or the transfer resulted in insufficient capital. See Creditor’s Comm. of Jumer’s Castle Lodge, Inc. v. Jumer, 472 F.3d 943, 948-49 (7th Cir.2007) (Plaintiff has burden of proof); Baldi v. Samuel Son & Co., 548 F.3d 579, 581 (7th Cir.2008) (Illinois and bankruptcy fraudulent transfer statutes require proof of the same elements, except the older version of § 548 of the Bankruptcy Code required the action to be brought in shorter time period). Debtor must prove elements of the fraudulent transfer by a preponderance of the evidence. See Brown v. Phillips (In re Phillips), 379 B.R. 765, 778 (Bankr.N.D.Ill.2007).
The first element, whether BCI made a transfer for which it did not receive reasonably equivalent value, is straightforward since the transaction involved money and debt in exchange for BCI’s stock. 34 If the value of the company’s stock was reasonably close to the price paid by Sun, there is little controversy. Neither party separately argued this issue, realizing that the real basis of their dispute was the value of BCI for purposes of proving insolvency or undercapitalization — the second element. If BCI was not insolvent or un-dercapitalized, it is unnecessary to reach the reasonably equivalent value issue.
2. Collapsing Transactions Before and After the Sale to Sun
Prior to addressing whether BCI was insolvent or undercapitalized it is necessary to identify what parts of the sale transaction should be analyzed. BCI’s post trial brief states: “As with many fraudulent conveyance cases involving a LBO, this Court must first collapse the component parts of the LBO.... ‘[A] court should not focus [sic] on the formal structure of the transaction, but rather on the knowledge or intent of the parties involved in the transaction.’ ” BCI Brf. at 3 and n. 4, quoting Wieboldt Stores, Inc. v. Schottenstein, 94 B.R. 488, 502 (N.D.Ill.1988). BCI hopes that collapsing the transactions before, during and after the sale into one deal makes Sellers responsible for Sun’s actions. Debtor complains *853 about Sun’s use of an LBO, which enabled Sun to limit its capital contribution to $500,000 in equity and a $1.5 million loan to Holdings. After highlighting Sun’s $500 million fund, Debtor remarks that Sun was able to purchase BCI with less than 0.4% of its fund by generously relying on debt. “Appropriately viewed as a collapsed transaction, nearly 94% of the stated $8 million purchase price was funded by $7.5 million of new debt.” BCI Brf. at I. However, as Defendants correctly point out, BCI cannot win if the transactions before and after the sale are not collapsed:
On February 15, 2005, when the Ba-chrachs turned over ownership of BCI to Sun, the company had zero balance sheet debt. Tr. V at 178:6-13. According to the McGladrey audited opening balance sheet that included a post-hoc $3.1 million downward adjustment to the value of the inventory, BCI still had about $10 million in working capital and about $8 million in total stockholder’s equity. Tr. Ill at 240:17-23. If the transactions that occurred on or around February 15, 2005, particularly the debt that Sun caused BCI to incur after the Bachrachs relinquished control, are not collapsed into one transaction, this case is over before it starts.
Def. Brf. at 3.
The only source declaring BCI insolvent and undercapitalized is Debtor’s trial expert, Craig Elson, of LECG, LLC. His opinion includes the LBO transactions Sun engineered after the Bachrachs turned BCI over to Sun. His report clearly relies on the combined actions of Sellers and Sun. “Counsel for BCI has asked me to evaluate the financial impact on BCI of the LBO transaction and determine whether, as a result of the LBO transaction, BCI was rendered insolvent, unable to pay its debts as they matured and/or was left without adequate capital.” (Report of Craig T. Elson, DX 117 at 2, emphasis addedj Elson does not opine on whether just the pre-closing real estate conveyance to Barsaled and/or cash withdrawal doomed BCI. His opinion also includes the buyer’s liability (Holdings) to the Ba-chrachs as a one hundred percent liability of BCI, effectively disregarding the formal structure of the sale. BCI’s expert’s opinion is relevant only if the sale and LBO are collapsed. Defendants are correct that this case is over if the transactions are not collapsed into one deal.
“The ‘collapsing’ doctrine is essentially an equitable doctrine allowing a court to dispense with the structure of a transaction or a series of transactions.” In re Route 70 & Massachusetts, L.L.C., No. 09-14771, 2011 WL 1883856 , at *5, 2011 Bank.LEXIS 1815, at *15 (Bankr.D.N.J. May 17, 2011); In re Ginn-La St. Lucie Ltd., No. 08-29769, 2010 WL 8756756 , at *4-5, 2010 Bankr.LEXIS 6324, at *23-25 (Bankr.S.D.Fla. Dec. 10, 2010). In Boyer v. Crown, Stock Distribution, Inc., 587 F.3d 787 (7th Cir.2009), the Seventh Circuit concluded that a $3.3 million payment in a leveraged buyout violated Indiana’s Uniform Fraudulent Transfer Act. Id. at 793-94 . The court did not offer a specific test for determining when a series of transactions in a leveraged buyout should be collapsed, but stated that: “[T]he ‘equities,’ as we shall see, do not favor lenient treatment in this case.” Id. at 792-93 . The court went on to explain that “the critical difference between the LBO in this case and a bona fide LBO is that this LBO was highly likely to plunge the company into bankruptcy.” Id. at 793 .
The Crown decision is best understood by studying the bankruptcy court’s findings of fact. Buyer Smith agreed to pay sellers $6 million for a business he and the sellers knew was worth no more than $2.7-$3 million as a going concern. Buyer also invested only $500 of his own money. Virtually all the purchase price, double the *854 business’ value, was obtained by loans secured with the company’s assets. The sellers’ knowledge that they received at least $2 million more than the business was worth “significantly weakens the benefits that may come from the good faith determination.” In re Crown Unlimited Machine, Inc., No. 03-13400, 2006 WL 6401548 , at *8, 2006 Bankr.LEXIS 4651, at *25 (Bankr.ND.Ind. Oct. 13, 2006). The debtor was doomed to failure following the transfer because of the excessive purchase price and the debt associated with it. Id. at *9-10 , 2006 Bankr.LEXIS 4651, at *29. On appeal, the district court added: “Crown Unlimited’s financial statement prepared on December 31, 1999, listed total assets at $3,750,609 and total liabilities at $1,780,935. After the sale, Crown Unlimited had total debts of $7,504,878 and $811,000 in its bank account to maintain operations. The amount of available capital didn’t cover the company’s existing trade debt or customer deposit liability, which amounted to $1.5 million.... ” Boyer v. Crown Stock Distrib., Inc., No. 06 C 409, 2009 WL 418275 , at *3, 2009 U.S. Dist. LEXIS 12393 , at *10 (N.D.Ind. Feb. 17, 2009).
The Northern District of Illinois has also weighed in on the collapsing issue. The court denied a motion to dismiss where it was alleged that the board and insider shareholders knew that the transaction was intended to be an LBO, knew that the company was insolvent before the LBO, and that the LBO would result in further encumbrance of the company’s already encumbered assets. Wieboldt, 94 B.R. at 502-03 . However, the court declined to collapse the transaction as to non-insider shareholders who were not alleged to have known details of the transaction. Id. at 503 . Thus, the court’s focus was on the knowledge and intent of the non-insider shareholders. Id. In so holding, the court explained that the drafters of the Bankruptcy Code intended to shield “innocent recipients” of property in the fraudulent conveyance context. Id.
Other courts, including several in the Third Circuit, have had occasion to consider the collapsing of a series of transactions. See HBE Leasing Corp. v. Frank, 48 F.3d 623, 637 (2d Cir.1995) (collapsing transactions where there was evidence sufficient to constitute constructive knowledge of fraudulent scheme); Kupetz v. Wolf, 845 F.2d 842, 850 (9th Cir.1988) (declining to collapse LBO where sellers did not sell in order to defraud creditors, they did not know buyer intended to leverage the company’s assets, and the transaction had indicia of a straight sale); United States v. Tabor Court Realty Corp., 803 F.2d 1288, 1302-03 (3d Cir.1986) (collapsing transactions where all parties participated in loan negotiations); In re Nat’l Forge Co., 344 B.R. 340, 350-51 (W.D.Pa.2006) (viewing a stock redemption as an integrated transaction considering strong identity of interests among the parties involved, joint involvement in arranging financing, and close timing of the transactions); In re OODC, LLC, 321 B.R. 128, 138 (Bankr.D.Del.2005) (denying motion to dismiss where trustee alleged entire series of asset purchases and transfers was orchestrated with the intent to defraud the debtor and its creditors); Official Comm. of Unsecured Creditors of Sunbeam Corp. v. Morgan Stanley & Co. (In re Sunbeam Corp.), 284 B.R. 355, 372-73 (Bankr.S.D.N.Y.2002) (granting motion to dismiss and refusing to collapse transactions where there were no allegations lenders knew or avoided discovering that purchase price of the acquisition was not valued fairly, that the debtor was insolvent, or that it would be rendered insolvent as a result of the transaction).
Most courts agree that the focus should not be on the formal structure of a transaction, but on the knowledge and in *855 tent of the parties. See Wieboldt, 94 B.R. at 502 ; HBE Leasing, 48 F.3d at 635-36 ; Kupetz, 845 F.2d at 847-48 ; Nat’l Forge, 344 B.R. at 348 ; Sunbeam, 284 B.R. at 370 . See also 5 Collier on Bankruptcy ¶ 548.03[6] (Alan N. Resnick & Henry J. Sommer eds. 16th ed.) (“[I]n leveraged buyouts, courts tend to collapse or disregard value received in the form of promises from a newly-formed entity created for the transaction, especially when the transferees had actual or constructive notice regarding the form of the transaction.”). In particular, courts look to whether there was an “overall scheme to defraud creditors.” See Nat’l Forge, 344 B.R. at 348 , citing HBE Leasing, 48 F.3d at 635-36 ; see also OODC, 321 B.R. at 138 ; Sunbeam, 284 B.R. at 370 .
Whether an LBO should be collapsed is a fact-intensive inquiry and should be determined on a case-by-case basis. Sunbeam, 284 B.R. at 370 . Some courts find constructive knowledge where the transferee fails to make appropriate inquiries with the information that would have been gained from ordinary diligence while others require an active avoidance of the truth. See HBE Leasing, 48 F.3d at 636 ; Sunbeam, 284 B.R. at 371 . Another court required actual intent to defraud and would collapse a transaction where, taken as a whole: (1) the transactions diminish the value of the debtor’s estate and the transfer is (a) for less than fair consideration or (b) made by the debtor with actual fraudulent intent; and (2) the party from whom recovery is sought had actual or constructive knowledge of the entire scheme. In re Allou Distribs., Inc., 379 B.R. 5, 22 (Bankr.E.D.N.Y.2007). Still other opinions emphasize the interdependence of the transactions:
In assessing a collapsing claim, a court must focus on the interdependence of the multiple transactions and whether the participants knew or should have known that no transaction would occur unless all of the other transactions occurred. See Voest-Alpine [Trading USA Corp. v. Vantage Steel Corp.], 919 F.2d [206] at 212 [ (3d Cir.1990) ] (collapsing transactions where each part of the transaction was dependent on the occurrence of the other and the defendant would not have consented to one of the transactions if the other would not occur); Official Committee of Unsecured Creditors v. Clark (In re National Forge Co.), 344 B.R. 340, 348 (W.D.Pa.2006) (“Among other things, courts consider whether all of the defendants were aware of the multiple steps of the transaction [and] whether each step would have occurred on its own or, alternatively, whether each step depended upon the occurrence of the additional steps in order to fulfill the parties’ intent.”); Hechinger Inv. Co. of Delaware v. Fleet Retail Fin. Group (In re Hechinger Inv. Co. of Del.), 327 B.R. 537, 546-47 (D.Del.2005) (collapsing transaction where the defendants knew about the multiple steps of the transaction,- each step of the transaction would not have occurred on its own, and each step relied on additional steps to fulfill the parties’ intent); Sher v. SAF Fin., Inc., Civ. Action No. RDB 10-1895, 2010 WL 4034272 , at *7 (D.Md. Oct. 14, 2010) (same); MFS/Sun Life Trust-High Yield Series v. Van Dusen Airport Servs. Co., 910 F.Supp. 913, 934 (S.D.N.Y.1995) (collapsing LBO where no single transfer would have taken place without the expectation that the entire transaction would be consummated, and the parties were aware of the overall LBO).
In re Fabrikant & Sons, Inc., 447 B.R. 170, 187 (Bankr.S.D.N.Y.2011).
In re Jevic Holding Corp., No. 08-11006, 2011 WL 4345204 , 2011 Bankr.LEXIS 3553 (Bankr.D.Del. Sept. *856 15, 2011) involved an LBO also structured by Sun. As in the instant case, Sun purchased the debtor with the help of a $90 million bridge loan from Harris Bank secured with debtor’s assets and guaranteed by Sun. After the closing, CIT Group replaced the Harris loan with a larger financing facility of $101.2 million, similar to LaSalle’s role in this case. The court observed “Jevic was almost immediately in default of various provisions of the Refinancing Facility.” Id. at *1 , 2011 Bankr.LEXIS 3553, at *5. To reduce debt- or’s liability, CIT successfully pressured debtor into selling and leasing back its real estate. This dropped the loan balance to $55 million: Sun’s maneuvers in Jevic resemble this case. 35 These similarities, plus the quantity of Third Circuit cases with specific guidelines on the collapsing doctrine, favors use of the test summarized in Jevic:
The courts in this District have considered the following factors when assessing whether the parties to the transactions sought to be collapsed had the requisite knowledge and intent to warrant consideration of the asserted transactions in the aggregate: whether all parties involved in the individual transactions had knowledge of the other transactions; whether each transaction sought to be collapsed would have occurred on its own; and whether each transaction was dependent or conditioned on the other transactions.
Id. at *5 , 2011 Bankr.LEXIS 3553, at *18-19.
BCI failed to establish that the Bachrachs’ sale to Holdings was dependent or contingent on Sun structuring it as an LBO. Quite the opposite was true. Sun’s January 2005 letter of intent announced it would purchase BCI from Sellers without any financing contingency.
New investments are being made through Sun Capital Partners III, a $500 million investment fund raised in January 2003 (together the “Fund”). Debt financing will either be provided by a lending institution with which we have an established relationship or will be funded by Acquisition at closing should the lenders not be ready to close at the same time as the Company and Acquisition. Acquisition will not have a financing contingency associated with this transaction.
(JX 068 at 2, emphasis in original).
Sun highlighted that it could close rapidly, precisely because its purchase would not be dependent on debt: “Sun Capital is uniquely positioned to close transactions within this relatively short time frame due to our ability to close deals unthout external financing.... ” {Id. at 5) The letter also boasted about Sun’s financial strength, noting that if its portfolio of investments were consolidated, it would rank within the top 100 of Forbes Magazine’s largest U.S. companies. All of this led Ed Bachrach to believe that Sun was more than able to complete the sale and continue to run BCI by paying its obligations as they became due, as had always been the case with BCI up to Sun’s purchase. This is in stark contrast to the Croim case where sellers knew buyer was paying twice the amount the company was worth and the buyer’s “assets were meager.” 587 F.3d at 790 . Under such circum *857 stances it is easy to conclude that the sellers knew or should have known the sale would injure Crown’s creditors. On the other hand, the facts in this case were that the purchase price of BCI was “attractive” and below book value, as noted in KPMG’s due diligence. There was no evidence at all that the purchase price of BCI was too high. There was no evidence at all that Sun conditioned its purchase on the LBO. Sun stressed to the Baehrachs that it could finance the deal itself if it wanted to. Clearly, Sun committed to buy BCI independent of any financing conditions. Sun did not inform the Baehrachs that an LBO must occur or no deal. Accordingly, the sale transaction was not dependent on the LBO Sun later designed.
This case is also unlike Wieboldt where allegations that the controlling shareholder and board assisted in structuring an LBO, knowing that Wieboldt was insolvent and in default on its obligations, stated a claim to collapse the LBO transactions. 94 B.R. at 495, 502 . Here, the Baehrachs delivered to Sun a company with assets exceeding liabilities by several millions of dollars and without any long term debt. Moreover, the Baehrachs agreed to refund part of the purchase price to guarantee that BCI had at least $10,235,000.00 in working capital, which Ed testified was sufficient to run the company and no one disputed. The LBO in Wieboldt left the company with no working capital, while the sale terms in this case ensured enough capital would exist to run BCI. None of the facts here would have put the Baehrachs on actual or constructive notice that their sale to Sun would injure BCI’s creditors.
Nevertheless, BCI argues that three events prove Sellers consciously participated in a plan to defraud creditors: 1) Ed’s handwritten notes; 2) pledge of BCI’s assets to secure the Holdings note; and 3) signing of the closing documents. None of these establish intent to defraud creditors.
Regarding the first item, Ed consulted a number of professionals and investment bankers before selling BCI to Sun, in an effort to either sell BCI or bring in management who would permit him to pursue a different career in academics. His handwritten notes from these encounters include one that listed the elements of a fraudulent conveyance (PX k) and another that said “Draw out cash and let them continue for 2 years on bank debt so our draw is not a preference payment.” (PX 6) However, Ed testified that he did not recall the specific context in which he jotted these notes, but he typically records what other people say. These notes, some written two years before the sale to Sun, establish nothing. Indeed, consultants would not be doing a good job if they did not point out pitfalls such as fraudulent conveyance elements or preference risks to clients looking to transition out of a business. One could just as easily assume that Ed’s education about bankruptcy and liquidation was one of the reasons why he continued to look for a strong buyer, assumed risk by financing one half of the purchase price with a subordinated note, and agreed to adjust BCI’s purchase price to ensure sufficient working capital after the sale. There is no evidence that these notes reflected Ed’s thinking much less a strategy to defraud BCI creditors.
As for the pledge of BCI’s assets to secure the Holdings note, it was Sun, in the letter of intent, who initially suggested that the $4 million financed by the Ba-chrachs be secured by a “[sjecond lien position subject to a subordination agreement.” (JX 068 at 1) Since it turned out that Holdings’ only asset was going to be the stock of BCI, Ed’s request that the note be secured with a junior lien in BCI’s assets was a prudent business decision, given the risk already assumed in financing one half of the purchase price. Sellers should not be required to perpetually in *858 sure the success of a business if it is sound financially when sold. Moreover, if seeking a lien is evidence of fraud against unsecured creditors, it is puzzling why BCI gave a pass to Sun. Sun purchased the $2 million Harris loan, which it guaranteed, and used Harris’ security agreement to hoist its $5 million investment ahead of BCI’s unsecured creditors. This was done when BCI was clearly in trouble, having used up its borrowing base. Yet, during this bankruptcy, the debtor has repaid Sun almost all of its investment in BCI.
Even if Ed’s note taking and lien request were proof of fraudulent intent, BCI has not produced anything to suggest his sisters, Barb and Sally, were in on the alleged scheme. BCI, however, argues that their signatures on the closing documents are enough to hold Ed, and his sisters, responsible for the Sun LBO. This court has laboriously reviewed all 51 documents included in the 684 page closing binder prepared by Sun’s attorneys, Kirkland and Ellis. None of the closing documents signed by Barb and Sally reveal anything about an LBO. As secretary of BCI, Barb signed document 21, which certified BCI’s articles of incorporation, bylaws and corporate resolution to sell the stock. Document 22, signed by Ed, Barb and Sally was a certification of non-foreign status. They all signed document 38, which was the exchange of BCI stock for a minority interest in Holdings and document 40, a stock registration agreement. None of these papers disclosed any details about the LBO or how Sun planned to fund the purchase. The Stock Purchase Agreement was the final document signed by all three Sellers. It contained no information about the planned LBO. This certainly was no surprise, since Sun committed to purchase BCI whether it had financing or not.
Ed clearly was more involved than his sisters, but there was no evidence to suggest that he was aware that Sun planned to finance nearly all its purchase or do an LBO. His testimony was uncontroverted, and this court found that he was not involved in structuring any part of the Sun acquisition. He only became aware that BCI was taking on debt when he signed the flow of funds statement, one of the last documents he saw at the closing. He testified that he had no discussions with Sun about their planned financing. He had no role in separately incorporating the buyer, Holdings, or any of the key steps used to implement the LBO. Not one Sun employee, or any witness, testified that they disclosed their LBO plans to Ed.
Accordingly, neither Ed’s handwritten notes, his request to secure the subordinated note with a junior lien in BCI’s assets, nor the signing of closing documents proved actual intent to defraud creditors by Ed or his sisters.
Even if a “constructive” test is used to determine fraudulent intent, there were no red flags to put the Bachrachs on notice that the sale of BCI to Sun would injure creditors. BCI took a large mark down of inventory prior to the sale to address inventory issues that were identified in Sun’s projections. Despite this mark down, fiie Bachrachs delivered the company to Sun debt free and solvent by millions of dollars. They agreed to refund the purchase price to the extent that BCI's actual working capital was less than a target amount required to run the company. They in fact refunded over a half million in cash a few months after the sale. BCI also benefitted from a below market warehouse lease, compliments of a math error Ed made, but honored. Sun was a strong company that boasted it could do this deal on its own, without a bank. The LBO was not a condition to the sale. Not one witness, Sun or otherwise, testified that Sun would scuttle the sale without LBO financing. Whatev *859 er Sun’s internal concerns were, they were not expressed to the Bachrachs. The evidence fails to establish any inter-dependency between the sale and the LBO. The evidence fails to establish any knowledge, constructive or otherwise, on the part of Sellers about how Sun would finance the purchase. Finally, the evidence fails to establish any intent of the Sellers to defraud BCI’s creditors. Accordingly, the collapsing doctrine will not be applied to impose the harm of Sun’s actions on the Bachrachs.
The LBO Did Not Render BCI Insolvent or Undercapitalized
BCI’s failure to present sufficient evidence to collapse the separate sale and LBO transactions ends its fraudulent conveyance case. 36 This is because Craig Elson’s opinion that the sale left BCI insolvent and undercapitalized was based on the combined effect of the sale and LBO on February 15, 2005. However, even if this court were to collapse the transactions, Elson’s opinion was not persuasive. Insolvency is a question of fact. Baldi v. Samuel Son & Co. (In re McCook Metals, L.L.C.), No. 05 C 2990, 2007 WL 4287507 , at *4-5, 2007 U.S. Dist. LEXIS 89412 , at *17 (N.D.Ill. Dec. 4, 2007), quoting Plankinton Bldg. Co. v. Grossman, 148 F.2d 119, 125 (7th Cir.1945) (“It is next contended by appellants that the court erred in holding that the debtor was unable to meet its maturing debts, and that it was insolvent. These are questions of fact.”). Accord, Teleglobe USA Inc. v. BCE Inc. (In re Teleglobe Communs. Corp.), 493 F.3d 345, 384 (3d Cir.2007) (“Whether a corporation is insolvent, and when it becomes so, are issues of fact.”). 37 The burden was on BCI to prove insolvency and/or inadequate capitalization by a preponderance of the evidence. That burden never shifts. Baldi 2007 WL 4287507 , at *3-4 n. 9, 2007 U.S. Dist. LEXIS 89412 , at *13 n. 9.
BCI offered the testimony and report of Craig T. Elson, Senior Managing Director of LECG, LLC. (Rpt. at PX 9 and rebuttal at PX 10) Defendants presented rebuttal testimony of John D. Cian-canelli and a report he co-authored with Stan A. Murphy, both of Navigant Consulting, Director and Managing Director, respectively. (Rpt. at DX 106 and rebuttal at DX 105) Ciancanelli and Elson each have done hundreds of business valuations. The parties stipulated to their qualifications, although BCI’s counsel felt it necessary to point out that this was Cianeanelli’s “maiden testifying voyage.” 38 PI. Posb-Trial Rebuttal Brf. at 1. In addition to their other qualifications, Ciancanelli and *860 Murphy are both Certified Public Accountants while Elson is not. Although neither expert’s approach was always consistent, 39 Cianeanelli offered credible and convincing explanations of why he chose certain parameters. Elson’s opinions walked a thin line between expert and advocate. His view was based too much on Sheila Arnold’s questionable assessment of BCI’s inventory, hindsight analysis, and dismissal of BCI’s contingent assets. Elson often failed to explain the logic behind his choices, ignored actual market conditions and shifted his trial testimony away from some of the positions taken in his deposition. The court came away with the conviction that Elson was just trying too hard to get to the conclusions that BCI needed to win its case.
Insolvency
1. BCI’s Enterprise Value
Insolvency is defined by the measure of liabilities against enterprise worth. Contested Valuation in Corporate Bankruptcy: A Collier Monograph, ¶ 1.01 (Robert J. Stark et al. eds., 2011) The asset side of the analysis, or enterprise value of BCI, is considered first. In calculating BCI’s enterprise value, Elson disregarded the consolidated balance sheet, audited by McGladrey & Pullen, in favor of using the discounted cash flow method to value BCI. 40 Assuming his approach was the only correct one to take, and assuming all of the parameters he selected were correct, Elson concluded that at the time of sale, the enterprise value of BCI was either a positive $1,163,520.00 or a negative $293,350.00. (PX 9 at Exh. 1.0) The negative enterprise value was based on including BCI’s post-sale obligation to pay Sun $400,000 a year in management fees. However, BCI employed managers, including the CEO Arnold and head of merchandising Larry Schechterman. Inclusion of the management fees was not a reasonable approach if BCI was to be valued with a hypothetical purchaser in mind. 41 There was no evidence that every purchaser would exact a management fee like Sun. Additionally, a negative enterprise value implies that the Bachrachs should have paid Sun to purchase their business. (Ciancanelli/Murphy Rebuttal Report, DX *861 105 at p. 3) For these reasons, the negative value is unreasonable.
2. BCI’s Liabilities
Instead, if Elson’s alternative, positive value of $1,163,520.00 is used as a starting point, BCI’s liabilities need to be identified and subtracted from his enterprise value to determine BCI’s solvency. Elson subtracted two items: the $2 million loan from Harris 42 and the $4 million owed to Sellers by BCI’s parent, Holdings. El-son did not discount either of these liabilities, and Defendants correctly assert that discounts should have occurred. In Baldi, Judge Posner observed:
To establish Longview’s insolvency at its starting date, Myhran jacked up its liabilities from the $206 million shown on the company’s balance sheet to $ 367 million. He did this by adding contingent liabilities, including a contingent pension liability, contingent post-retirement benefit obligations, contingent severance payments, and the penalty provision in a take-or-pay contract with Bonneville. Contingent liabilities are&emdash; contingent. “By definition, a contingent liability is not certain&emdash;and often is highly unlikely&emdash;ever to become an actual liability. To value the contingent liability it is necessary to discount it by the probability that the contingency will occur and the liability become real.” In re Xonics Photochemical, Inc., 841 F.2d 198, 199 (7th Cir.1988); see, e.g., Freeland v. Enodis Corp., 540 F.3d 721, 730 (7th Cir.2008); In re Chase & Sanborn Corp., 904 F.2d 588, 594 (11th Cir.1990). Myhran treated Longview’s contingent liabilities as certainties. That invalidated his expert opinion. In re Wallace’s Bookstores, Inc., 316 B.R. 254, 260-62 (Bkrtcy.E.D.Ky.2004); see FDIC v. Bell, 106 F.3d 258, 264-65 (8th Cir.1997).
548 F.3d at 582 .
Judge Posner used an example applicable here: “The pension liability was not Longview’s liability; it was the liability of companies affiliated with Longview. It would become Longview’s liability only if the affiliates defaulted on their pension obligations, and Myhran offered no estimate of the probability of such an event.” Id. at 583 . The $4 million subordinated note that Elson fully charged against BCI was the liability of its parent, Holdings, a company formed by Sun in connection with its purchase of BCI:
Q. The debtor didn’t owe any money whatsoever to either Ed Bachrach, as seller’s agent, or to any of the sellers individually?
A. No, it was an obligation of Bachrach Clothing Corporation, parent.
(Testimony of Elson, Trial Transcript, Vol. 3 at 135)
Elson testified that he included the liability at a hundred percent because the Holdings note was secured by a junior lien on BCI’s assets. At trial, Elson was asked if the Holdings debt did not exist, would the value of the junior l

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8495231. Public record. Not legal advice.