In re Portnoy

• Decision Date: 07 October 1996
• Docket Number: Bankruptcy No. 95 B 45452 (TLB),Adv. No. 96/8312 A.
• Citation: 201 BR 685
• Parties: In re Larry PORTNOY, Debtor. MARINE MIDLAND BANK, Plaintiff, v. Larry PORTNOY, Defendant.
• Court: U.S. Bankruptcy Court — Southern District of New York

201 B.R. 685 (1996)

In re Larry PORTNOY, Debtor MARINE MIDLAND BANK, Plaintiff, v. Larry PORTNOY, Defendant.

Bankruptcy No. 95 B 45452 (TLB), Adv. No. 96/8312 A.

United States Bankruptcy Court, S.D. New York.

October 7, 1996.

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Kleban & Samor, P.C. by Elliot I. Miller, Southport, CT, for Debtor.

Phillips, Lytle, Hitchcock, Blaine & Huber by William J. Brown, David J. McNamara, New York City, for Marine Midland Bank.

DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

TINA L. BROZMAN, Chief Judge.

At the heart of this debtor's summary judgment motion lies an irrevocable offshore trust into which he placed virtually all of his assets at a time when he knew that his personal guarantee of his corporation's indebtedness was about to be called. The debtor, Larry Portnoy, claims not only that his assets have been successfully insulated under the law of the Jersey Channel Islands ("Jersey"), but that he is entitled as a matter of law to a discharge of all debts including the indebtedness which he guaranteed. Marine Midland Bank ("Marine"), which holds Portnoy's guarantee and feels bruised by his actions, seeks to deny him a discharge under sections 727(a)(2)(A) and (a)(4) of the Bankruptcy Code on the theories that he engaged in a deliberate scheme to conceal assets and intentionally or recklessly omitted from his bankruptcy schedules his substantial "control powers" in the offshore trust. Alternatively, Marine seeks to exempt from discharge its debt alone because, it says, Portnoy willfully and maliciously transferred his assets in order to injure Marine.

In his answer to Marine's complaint, Portnoy denied that (1) I have jurisdiction over the offshore trust, the case,¹ and the adversary proceeding; (2) his estate encompasses the assets in the offshore trust; (3) he owns his salary which he deposits weekly in his wife's bank account; (4) Marine was his creditor at the time he created the offshore trust; (5) after he transferred the assets to the offshore trust and deposited his salary in his wife's bank account, he was left with insufficient assets to pay his debts; (6) he has any "control powers" over the offshore trust or that such powers are material to the bankruptcy estate; (7) his bankruptcy schedules were untruthful or that he knowingly or recklessly made a false oath in connection with this case; and (8) he had any intent to conceal assets from or willfully and maliciously injure Marine. Portnoy also pleaded several affirmative defenses bottomed on my asserted lack of jurisdiction over the trust and his salary or on Marine's claimed laches and bad faith.

So far as uncontested the facts are set forth below.

I.

A. Creation of the Trust

In March 1987, Portnoy, the former president and sole shareholder of Mary Drawers, Inc. ("Mary Drawers"), unconditionally guaranteed any existing and future indebtedness of that entity to Marine. Just about one year later, in March 1988, Marine loaned Mary Drawers in excess of $1 million.

In August 1989, Portnoy established a trust ("the offshore trust") in St. Helier in Jersey, and executed a declaration of trust naming Jarden Morgan Trustees (Jersey) Ltd. as sole trustee ("Jarden"), as himself "Principal Beneficiary," and his two children as additional beneficiaries. Over the course of the next several months Portnoy transferred his assets to that trust. Northington Decl. ¶ 12 at 7; Ex. "3," Debtor's Dep. at 163-164 (October 3, 1995). An inference can be drawn that the timing was purposeful, for in June, two months before the trust's creation, Portnoy knew that Mary Drawers was in trouble and by December of that same year, Mary Drawers had defaulted on its obligations to Marine.

The declaration of trust provides that it shall be governed by Jersey law and purports to vest exclusive jurisdiction over the trust's interpretation in the Jersey courts. Jarden has no office, employees, or telephone listing in the United States and conducts no business here.

As identified by the parties, some of the important trust provisions include:

5. POWER OF ADVANCEMENT OF CAPITAL. The Trustees shall have power at any time before the Vesting Day² . . . to transfer or apply the whole or any part or parts of the capital of the Trust Fund to or for the benefit of all or any one or more to the exclusion of the others or other of the Beneficiaries or Default Beneficiaries . . . in such manner as the Trustees shall in their absolute discretion think fit and so that any capital so paid, transferred or applied shall be freed and discharged from the trusts, powers and provisions hereof.

9. POWER TO CONSIDER WISHES OF PRINCIPAL BENEFICIARY. In the exercise of their powers and discretions hereunder the Trustees may if they think fit so to do have regard to but shall in no way be bound by the wishes in writing of the Principal Beneficiary or the wishes of any other person who may be nominated in writing by the Principal Beneficiary to the Trustees from time to time.

13. POWER TO IGNORE INTERESTS. The Trustees in exercising any of the powers and discretions hereby conferred in favour of any particular person or persons are hereby expressly authorized to ignore entirely the interest of any other person interested or who may become interested hereunder.

26. REMOVAL OF TRUSTEES. (1) The Principal Beneficiary shall have power (subject to sub-clause (2) of this Clause 26) at any time or times before the Vesting Day in his absolute discretion and without giving any reasons therefor by notice in writing given to the Trustees . . . to remove any or all of the Trustees from office and to appoint one or more other persons (wherever resident or domiciled) to be a Trustee or Trustees in place of the Trustee or Trustees so removed. (2) Unless there is only one Original Trustee hereof the Principal Beneficiary shall not be capable of exercising the power conferred by sub-clause (1) hereof unless after the exercise of that power there will be at lease sic two Trustees hereof.

27. DIVESTING OF TRUSTEES. (1) The Principal Beneficiary shall have the power at any time or times before the Vesting Day by instrument or instruments in writing to nominate any person (wherever resident or domiciled) as Successor Trustees and such persons shall while living or in existence and unless and until any further nomination is made under the power conferred by this sub-clause be the Successor Trustees for the purpose of this clause. . . .

30. EXCLUSION OF BENEFICIARIES AND DEFAULT BENEFICIARIES. The Trustees shall have the power at any time or times before the Vesting Day by instrument in writing revocable before the Vesting Day or irrevocable to declare that any persons or charitable bodies described in such instrument who are, would or might but for this Clause be or become beneficiaries or Default Beneficiaries or otherwise be able to benefit hereunder shall thenceforth or from such later time falling before the Vesting Day as may therein be specified and whether permanently or for such period as may therein be specified: — (1) be wholly or partially excluded from benefits hereunder; or (2) cease to be Beneficiaries or Default Beneficiaries (whether beneficially or in some fiduciary capacity) in relation to the whole or any part or part of the Trust Fund or the income therefrom. . . .

Ex. "14," Marine's Opp'n to Motion for Summary Judgment.

The total realizable value of the assets transferred to the trust approximated $700,000; the declared transfer value was $1,045,943. Northington Decl. ¶ 6 at 4; Marine's Statement of Facts ¶ 1(d) at 2. From 1989 to the present, Portnoy has filed required annual forms regarding the offshore trust with the United States Treasury Department.

B. Portnoy's Salary and Real Estate

Apparently, Portnoy was not satisfied with only removing assets from Marine's reach but decided that he had to protect his earned income as well. Starting sometime in 1990, Portnoy began, and to this day continues, to deposit all of his salary, at least $150,000 per annum, into a bank account in his wife's name. For a short period of time prior to that, Portnoy had transferred his weekly salary into an account in the name of his daughter, Melissa. Notwithstanding these transfers, Portnoy exercised sole check writing authority over the accounts.

Real property received similar treatment. In 1990 or 1991, Portnoy transferred to Mrs. Portnoy a joint interest in their home and all the proceeds from the sale of his condominium located in Florida. Ex. "9," Debtor's Dep. at 95-97 (February 2, 1995).

C. Marine Sues Portnoy and Discusses Settlement

On February 22, 1990, Marine sued Portnoy on his guarantee in New York State Supreme Court, New York County. Ex. "16," Marine Midland Bank v. Portnoy, No. 104830/95, slip op. at 2-3 (Sup.Ct.N.Y. County Sept. 8, 1995) (Davis, J.).

In early 1991, Portnoy, Marine and their respective counsel met to discuss a possible settlement of Marine's suit. Portnoy had previously supplied Marine with a financial statement dated June 30, 1989, which indicated his net worth at $2,104,250, showing assets of cash ($242,500), real estate ($1,000,000 encumbered by a $319,000 mortgage), government and marketable securities ($141,250), sundry partnerships ($350,000), equity in a corporation ($615,000) and an Individual Retirement Account ($34,500). Ex. "5," Marine's Opp'n to Motion for Summary Judgment.³ During the settlement conference, Portnoy told Marine that he had been financially ruined by expensive experimental cancer treatments, that his assets other than real estate "were all gone," and that he had no unencumbered assets with which to satisfy his indebtedness to Marine. Notwithstanding his actual $150,000 plus annual salary, Portnoy also said he was earning only $1,700 per month as an employee in the garment industry, an amount insufficient to service his debt to Marine. Northington Decl. ¶ 22 at 12. Portnoy does not now dispute that ...