In re Bernheim

• Decision Date: 13 February 1986
• Docket Number: Bankruptcy No. 82-06931,Adv. No. 85-0350TG.
• Parties: In re L. Andrew BERNHEIM, Debtor. Adelyn FIRTEL, Plaintiff, v. L. Andrew BERNHEIM and Santo J. Lalomia, Trustee For L. Andrew Bernheim, Defendants.
• Court: U.S. Bankruptcy Court — District of New Jersey

62 B.R. 739 (1986)

In re L. Andrew BERNHEIM, Debtor.

Adelyn FIRTEL, Plaintiff, v. L. Andrew BERNHEIM and Santo J. Lalomia, Trustee For L. Andrew Bernheim, Defendants.

Bankruptcy No. 82-06931, Adv. No. 85-0350TG.

United States Bankruptcy Court, D. New Jersey.

February 13, 1986.

Shashaty & Lalomia, Paterson, N.J., by Frances Gambardella, Glen Ridge, N.J., for Santo Lalomia, Trustee.

Lowenstein, Sandler, Brochin, Kohl, Fisher, Boylan & Meanor, Roseland, N.J., by David Zabel, Roseland, N.J., for debtor.

Podvey, Sachs & Catenacci by Herbert Waldman, Newark, N.J., for Adelyn Firtel.

Rabner & Allcorn by Harold Rabner, Upper Montclair, N.J., for Antony Bernheim.

Johnson & Johnson by George Johnson, Dover, N.J., for Dawn Bernheim.

Rothbard, Rothbard & Kohn by Jonathan Kohn, Newark, N.J., for trustee Jonathan Kohn — Elm Court.

Kalb, Friedman & Siegelbaum by Joel Glucksman, Roseland, N.J., for trustee Jack Birnberg — Reach — McClinton.

Goldstein & Till by Peter Till, Newark, N.J., for Lib Realty.

Sills, Beck, Cummis, Zuckerman, Radin, Tischman & Epstein, Robert Baime, Newark, N.J., guardian ad litem for L. Andrew Bernheim.

OPINION

WILLIAM H. GINDIN, Bankruptcy Judge.

The above matter comes before the Court on the complaint of Adelyn Firtel seeking to compel the Debtor, L. Andrew Bernheim, to turn over to the Trustee, Santo Lalomia, certain monies received by him since the commencement of the original case (In the Matter of L. Andrew Bernheim, Debtor, Docket No. 82-06931). Various submissions were made by way of Affidavit and portions of the depositions of Milford Inganamort and Raymond Uzzi. The parties agreed that same should be considered by the Court. The testimony of the Debtor was taken on January 17, 1986 and final submissions were received by the Court on February 4, 1986.

The Debtor filed the original Petition on October 6, 1982. In the Schedule of Assets filed in conjunction therewith, the Debtor listed ownership in Lib Realty, Inc. (hereinafter referred to as Lib) which in turn owned various interests in real estate. No listing of said interests was given. During 1985 the Debtor received certain monies from Lib in connection with two transactions. The first transaction was a transfer from Mountainview Manor Limited Partnership to VFW Equity Group, LTD. (hereinafter referred to as Mountainview). The second transaction arose from the transfer of property by Stonehurst Associates (hereinafter referred to as Stonehurst).

The essential dispute arises from the claim of the Debtor that all sums received constitute post-petition earnings of the Debtor which are excepted from the definition of an estate contained in § 541 of the Bankruptcy Code, (11 U.S.C. § 541(a)(6)), in that they are "earnings from services performed by an individual debtor after the commencement of the case". The Trustee, as well as the Plaintiff in the within action, and the other parties in interest urge that such funds as received by the Debtor do not constitute "earnings", and as such are a portion of the estate available to creditors for distribution. They further urge that even if such funds are deemed earnings, they are subject to the jurisdiction of the Court.

MOUNTAINVIEW

At the present time Robert Baime, Esq., Special Guardian Ad Litem for the Debtor L. Andrew Bernheim, is holding approximately $62,500 in funds remaining from a "commission" paid with respect to the Mountainview transaction. All parties agree that in August of 1985 Lib received the sum of $575,000 as a commission for the Mountainview transaction. The Debtor had listed a portion of his interest in Lib as being available to fund $600,000 toward a proposed plan. (Second amended disclosure statement of Debtor L. Andrew Bernheim, pg 4, para. b, # 9) In making distribution the other principles of Lib Realty (L. Andrew Bernheim being a one-third shareholder) acknowledged the receipt of the money. From the $575,000 they deducted certain costs of sale which the company had incurred and then, in accordance with an agreement dated February 25, 1985 (and denominated P1 in evidence at the hearing on January 17th) earmarked one-half of the remaining sum to the Debtor. A pre-existing advance was repaid directly by Lib on behalf of Mr. Bernheim and the balance of $201,000 distributed to Mr. Bernheim. Mr. Bernheim immediately spent $70,000, leaving $135,000 remaining. Pursuant to an order of the Superior Court of New Jersey, Chancery Division, Matrimonial Part, Mr. Bernheim's former wife, Dawn Bernheim, seized the balance of $135,000 in furtherance of the Court Order previously entered. Since that time this Court has released the sum of $62,500 to Dawn Bernheim for the purpose of acquiring real estate in furtherance of the divorce proceeding. The balance was transferred to Mr. Baime, who holds it subject to the direction of this Court.

The facts adduced make it unquestionable that the funds attributable to the Mountainview transaction were in fact real estate commissions. Mr. Bernheim testified that he received the funds as compensation at the sale which occurred in August of 1985 because, among other things, he arranged financing, drafted a contract and met with the company which ultimately arranged a syndication (Tr. January 18, 1986, pg. 18). The nature of those payments was confirmed by testimony from the other two principals of Lib. Milford Inganamort, one of the other principals, testified at a deposition on September 12, 1985 "Andy received money from Lib Realty in consideration of his efforts for the commission that Lib Realty received" (Tr. September 12, 1985, Pg. 35). On the same date the other principal and one-third shareholder of Lib, Raymond Uzzi, testified "For services rendered on producing an eventual real estate commission or an eventual sale of a piece of real estate" (Tr. 9/12/85 Pg. 184). The Plaintiff urges that these payments with respect to Mountainview do not constitute "earnings" and presents as her main theory the argument that the receipt of real estate commissions by the Debtor is illegal. The debtor is neither a real estate broker nor a real estate salesman (Tr. January 17, 1986, pg. 34, 1. 22, pg. 35, 1.13).

In Baron & Co., Inc. v. Bank of N.J., 504 F.Supp. 1199 (D.N.J.1981) which described activities of a Plaintiff similar to those in the instant case, Judge Gerry determined that the Plaintiff would not be permitted to maintain an action to seek reimbursement for such commissions. The policy of the law was held to be "so strong that neither a contract nor the unlawful efforts made in its pursuit could provide the basis of pecuniary benefit to such a broker", 504 F.Supp. 1209. The statute, N.J.S.A. 45:15-1 et seq. specifically precludes such activities as the ones set forth by Mr. Bernheim. See N.J.S.A. 45:15-3. In Weston Funding Corporation v. The Lafayette Towers, Inc., 550 F2d 710 (2d Cir.1977), Judge Timbers of the Second Circuit refused to permit an action in New York after a New Jersey Court had prohibited the action in New Jersey because of the failure of the Plaintiff to be licensed in New Jersey. The inference which can be drawn from the Weston case is that the New Jersey statute being a "door closing" statute prohibits any action for the enforcement of the right to a commission in any Court.

Defendant argues that the within action is not one for the enforcement of a commission. He cites a number of cases in support of the fact that "earnings" cannot be considered a part of the Debtor's estate, but is in fact exempt under 11 U.S.C. § 541(a)(6). See In Re Fitzsimmons, 20 B.R. 237 (9th Cir. BAP 1982) aff'd 725 F.2d 1208 (9th Cir.1984), and In Re Lotta Water Land Co., 25 B.R. 32 (Bkrtcy ND Texas 1982). A contrary result arose in In Re Sloane, 32 B.R. 607 (Bkrtcy E.D.N.Y.1983), but in that case a finder's fee was paid for work which in fact had been done prior to the filing of the petition and the case is thus not apposite. The Lotta Water Land Co. case is instructive in that a careful distinction was drawn between pre and post-petition transactions.

The determination in the instant case, however, cannot rest solely on the issue of whether or not the collection of the monies from Mountainview is illegal. The distinction which must be drawn is one between the exception found in 541(a)(6) and 541(a)(7) which latter section governs property acquired by the estate after the commencement of the case. In the instant case, commissions were paid to Lib and the issue of whether or not Lib was entitled to collect them by virtue of its position in the real estate business is not before the Court. The question is whether or not there are earnings from services performed by the Debtor. The services were in fact performed by Lib and whatever distribution Lib made in fact constituted "profits" on property (i.e. the stock of Lib) acquired before the commencement of the case. The receipt of $575,000 by Lib was earnings of Lib and resulted in a greater profit. The Debtor did not receive regular wages (and was not on the payroll of Lib) (Tr. January 17, 1986, Page 40, line 13 to line 19) and did not receive a fixed amount. If the amount paid was wrong, the New Jersey statutes prohibit an action by the Debtor on the basis that he earned a real estate commission. Thus, the characterization can only be some distribution of profits from a company which increased in value over the course of the Chapter 11 proceeding.^*

Thus, Mountainview money is not earnings, but in fact pursuant to the provisions of 11 U.S.C. § 541(a)(6) is profits which constitute a portion of the estate.

STONEHURST

In addition to the money received as a result of...