Bullion Reserve of North America, In re, 89-55375

• Decision Date: 04 January 1991
• Docket Number: No. 89-55375,89-55375
• Citation: 922 F.2d 544
• Parties: , 24 Collier Bankr.Cas.2d 698, 21 Bankr.Ct.Dec. 326, Bankr. L. Rep. P 73,771 In re BULLION RESERVE OF NORTH AMERICA, a California Corporation, Debtor. Curtis B. DANNING, Chapter 7 Trustee, Plaintiff-Appellee, v. Michael L. MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 544

922 F.2d 544

59 USLW 2462, 24 Collier Bankr.Cas.2d 698,

21 Bankr.Ct.Dec. 326,

Bankr. L. Rep. P 73,771

In re BULLION RESERVE OF NORTH AMERICA, a California Corporation, Debtor Curtis B. DANNING, Chapter 7 Trustee, Plaintiff-Appellee, v. Michael L. MILLER, Defendant-Appellant.

No. 89-55375.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 1, 1990.

Decided Jan. 4, 1991.

Michael Miller, Pro Per, Beverly Hills, Cal., for defendant-appellant.

Jeffrey C. Krause, Stutman, Treister & Glatt, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BOOCHEVER, BEEZER and TROTT, Circuit Judges.

TROTT, Circuit Judge:

This dispute arose from a transaction in which Alan Saxon, the president of Bullion Reserve of North America ("BRNA"), agreed to contribute $1.5 million to The Commercial Bank of California ("CBC") in exchange for an ownership interest in CBC.

Arnold Kopelson and Michael Miller were members of CBC's Board of Directors. CBC was desperately in need of capital, and Kopelson approached Saxon for a capital contribution. Saxon agreed. He caused BRNA to transfer $1.5 million to his personal account, and in turn made a non-recourse loan of $1.5 million to Miller and Kopelson. The money was placed in Kopelson's personal bank account, and used to purchase stock in Kopelson's and Miller's names. In accordance with the controlling agreement, the stock was immediately pledged to Saxon as security for the loan.

BRNA then filed a petition under Chapter 7 of the Bankruptcy Code. During the liquidation proceedings, Curtis B. Danning, bankruptcy trustee for BRNA, and Saxon's estate stipulated the initial transfer from BRNA to Saxon was fraudulent under 11 U.S.C. Sec. 548. Danning then brought an adversary proceeding against Miller under 11 U.S.C. Sec. 550, which allows a bankruptcy trustee to recover a debtor's fraudulent transfers from certain classes of "transferees." The bankruptcy court, by way of partial summary judgment, awarded $1.5 million to the trustee, finding that Miller was a "transferee" from whom the trustee could recover. The district court affirmed, and Miller now appeals. We have jurisdiction under 28 U.S.C. Sec. 158(d), and we reverse.

I

In November 1982, the California State Banking Department advised CBC to increase its capital. At that time, Arnold Kopelson and Michael Miller were serving on CBC's Board of Directors. Kopelson telephoned Alan Saxon, president of BRNA, to discuss the possibility of an investment in CBC. Saxon agreed to contribute $1.5 million in exchange for an ownership interest in CBC.

CBC could not simply sell stock to Saxon. Obtaining a permit to issue shares directly to Saxon would take weeks or months to be approved. Kopelson believed quick action was necessary because he had been advised by the California State Banking Department and the FDIC that the need for capital was immediate. Without fresh capital, CBC could be closed in a matter of days. Kopelson knew CBC could obtain immediate permission to issue 50,000 shares to himself and 50,000 shares to Miller because they were both members of CBC's Board of Directors. To avoid delay, Kopelson and Saxon agreed the shares would not be issued directly to Saxon, but to Kopelson and Miller "for Saxon's benefit."

In two separate deposits, Saxon transferred $1.5 million from BRNA to his personal account at CBC. Saxon then made a non-recourse loan of $1.5 million to Kopelson and Miller, secured by an "assignment and transfer" of 100,000 shares of CBC stock, to be purchased by Kopelson and Miller. The loan was evidenced by a "Nonrecourse Promissory Note and Collateral Pledge Agreement" (the "Nonrecourse Note"). Additionally, in a letter dated December 15, 1982, Kopelson and Miller pledged their "beneficial interest" in the shares to Saxon.

The $1.5 million was transferred to Kopelson's personal CBC account. When the Banking Department authorized CBC to issue 50,000 shares each to Kopelson and Miller, Kopelson delivered a personal check to CBC in the amount of $1.5 million. The transaction was approved by CBC's Board of Directors, and CBC took the funds into its capital account. No certificates were issued for the shares.

Eventually, BRNA encountered financial difficulties and filed a petition under Chapter 11 of the Bankruptcy Code. On January 10, 1984 the bankruptcy court converted BRNA's Chapter 11 reorganization to a Chapter 7 liquidation proceeding. BRNA's bankruptcy trustee, Curtis B. Danning (the "Trustee"), entered into an agreement with Saxon's probate estate and widow (Saxon had since died) entitled "Accord, Full Compromise and Final Settlement of Controversies" (the "Accord"), pursuant to which the parties stipulated to the allowance of the Trustee's asserted claims. Specifically, Saxon's estate stipulated the initial transfer from BRNA to Saxon was voidable under section ¹ 548, which allows the trustee to "avoid" or set aside transfers if the debtor (1) made the transfer with actual intent to hinder, delay or defraud creditors, or (2) received less than equivalent value for the property and was insolvent when the transfer was made or became insolvent as a result of the transfer.

On August 18, 1985, the Trustee brought this adversary proceeding against Kopelson and Miller under section 550 to recover the $1.5 million transferred from BRNA to Saxon and from Saxon to Kopelson and Miller. The bankruptcy court entered summary judgment for the Trustee, and the district court affirmed. Kopelson and Miller filed timely notices of appeal. Kopelson's appeal was settled (he has agreed to pay $1 million to the Trustee) and was dismissed by this court on June 4, 1990.

II

A grant of summary judgment is reviewed de novo, Isom v. United States Internal Revenue Service (In re Isom), 901 F.2d 744, 745 (9th Cir.1990), and this court "may base [its] ruling on any ground supported by the record." Gilbert v. Ben-Asher, 900 F.2d 1407, 1410 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 177, 112 L.Ed.2d 141 (1990) (citing Jackson v. Southern Calif. Gas. Co., 881 F.2d 638, 643 (9th Cir.1989)). The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Williams v. United States Gen. Servs. Admin., 905 F.2d 308, 310 (9th Cir.1990); United States v. Daniel (In re R & T Roofing Structures & Commercial Framing), 887 F.2d 981, 984 (9th Cir.1989).

III

The representative of a bankruptcy estate, generally a trustee, has broad powers under the Bankruptcy Code to "avoid" certain transfers of property made by the debtor either after or shortly before the filing of the bankruptcy petition. The property may be returned to the estate for the benefit of all persons who have valid claims against the debtor. In this case, the transfer from BRNA to Saxon was avoided under section 548.

Section 548(a)(2) allows the trustee to avoid a transfer if the debtor "received less than a reasonably equivalent value in exchange for such transfer or obligation" and "was insolvent on the date that such transfer was made" or "became insolvent as a result of such transfer." Section 548(a)(1) permits the trustee to avoid any transfer made with "actual intent to hinder, delay or defraud any entity to which the debtor was or became ... indebted."

Section 550 authorizes the trustee to recover the transferred property. ² Theoretically the trustee can recover from both the initial transferee and any secondary transferee, as well as from any entity for whose benefit the initial transfer was made. Section 550(b)(1), however, prohibits recovery from "immediate and mediate" transferees who take for value, in good faith, and without knowledge. The "good faith" defense of section 550(b) does not apply to the "initial transferee" of the debtor or the "entity for whose benefit such transfer was made," and the trustee's power to recover from these entities under section 550(a)(1) is absolute.

Both parties concede the initial transfer from BRNA to Saxon was avoidable under section 548. Saxon caused BRNA to transfer the $1.5 million to his personal account without any consideration whatsoever, and BRNA was insolvent or rendered insolvent by the transfer. Further, Miller concedes the initial transfer was made with actual intent to hinder or delay BRNA's creditors in violation of section 548(a)(1). These facts were stipulated in the Accord.

We are therefore faced with the narrow issue of whether Miller was a "transferee" of the $1.5 million within the meaning of section 550(a)(1) or section 550(a)(2). We hold he was not.

IV

Section 550(a)(1) authorizes the trustee to recover from the "initial transferee" or "the entity for whose benefit such transfer was made." Both parties agree that Saxon was the "initial transferee." The Trustee, therefore, can rely on section 550(a)(1) only if Miller is an "entity for whose benefit such transfer was made."

The district court found "the money was deposited into Kopelson's account partially for defendant Miller's benefit." Relying on this finding, the district judge concluded Miller was a transferee from whom the Trustee could recover. This conclusion is incorrect as a matter of law as Miller was not the "initial transferee," nor was the initial transfer made for his benefit.

This phraseology implies a requirement that, in transferring the avoided funds, the debtor must have been motivated by an intent to benefit the individual or entity from whom the trustee seeks to recover. It is not enough that an entity benefit from the transfer; the transfer must have been made for his benefit.

Merrill v. Dietz (In re Universal Clearing House Co.), 62 B.R. 118, 128 n. 12 (D. Utah 1986) ("Universal Clearing House ") (emphasis added). Indeed, courts have found that...