Moyer v. Kooistra (In re Przybysz)

Decision Date29 November 2012
Docket NumberAdversary Pro. No. 12-80175,Case No. DG 10-07110
PartiesIn re: WILLIAM K. PRZYBYSZ, Debtor. JEFF A. MOYER, Plaintiff, v. DAVID KOOISTRA, an individual, and NICOLE M. KOOISTRA, an individual, Defendants.
CourtU.S. Bankruptcy Court — Western District of Michigan

Hon. Scott W. Dales

Chapter 7



United States Bankruptcy Judge

Chapter 7 trustee Jeff A. Moyer (the "Trustee") alleges that debtor William K. Przybysz (the "Debtor") used several entities including the Miracle Match Foundation ("MMF") and WKP Enterprises, LLC ("WKPE" and, with MMF, collectively the "Related Entities") as instrumentalities to conduct a classic Ponzi scheme. The Trustee commenced numerous adversary proceedings, including this one, to recover from various defendants money that the Debtor and the Related Entities allegedly transferred in furtherance of the scheme. The Trustee's pleadings, initially vague, have grown considerably more specific with each amendment, but notany less controversial given his continued reliance on the alter ego doctrine to meld the Related Entities into the Debtor as a predicate for avoiding prepetition transfers dating back to 2006.

The principal issue for decision is whether the Trustee may treat the Related Entities as the Debtor for purposes of exercising the estate's power to avoid fraudulent transfers under 11 U.S.C. § 544(b), or in other words, whether, at the time of the transfers, the Debtor had any interest in the property of the Related Entities that would have been included within his bankruptcy estate had the transfers not occurred.

Although the court accepts the Trustee's well-pleaded factual allegations under Fed. R. Civ. P. 12(b)(6), it rejects his legal theory as not viable under either state or federal law, and will not permit him to avoid the transfers effected by the Related Entities.


The United States District Court has jurisdiction over the Debtor's chapter 7 bankruptcy case pursuant to 28 U.S.C. § 1334, but has referred the case and related proceedings to the United States Bankruptcy Court pursuant to 28 U.S.C. § 157(a) and LCivR 83.2(a) (W.D. Mich.). This adversary proceeding and the other twenty proceedings considered in this Opinion and Order are core proceedings as a statutory matter because they are proceedings to "determine, avoid, and recover fraudulent conveyances." 28 U.S.C. § 157(b)(2)(H).

Nevertheless, in our Circuit the reverberation of the Supreme Court's decision in Stern v. Marshall, 131 S. Ct. 2594 (2011), casts doubt on a bankruptcy court's authority to enter final judgment, making it increasingly difficult to determine the form of the court's disposition. See Waldman v. Stone, 2012 WL 5275241 (6th Cir. Oct. 26, 2012) (stating in dicta that "only an Article III court can enter final judgment on [a fraudulent conveyance] claim"); Onkyo Europe Electronics GMBH v. Global Technovations Inc. (In re Global Technovations Inc.), 694 F.3d705 (6th Cir. 2012) (recognizing bankruptcy court authority to enter final judgment in fraudulent conveyance dispute against creditor who filed claim against the estate).

The court requested briefing on this issue from the parties, but they declined, evidently believing, as many bankruptcy practitioners did until recently, that the parties' consent to entry of final judgment by a bankruptcy judge rendered the issue academic. Unfortunately, the Waldman decision seems to suggest that parties cannot consent to final relief by the bankruptcy court because the constitutional underpinnings of Stern serve as a "structural principle" that "safeguards the role of the Judicial Branch in our tripartite system by barring congressional attempts to transfer jurisdiction to non-Article III tribunals . . ." Waldman, 2012 WL 5275241, *4 (quoting Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 850 (1986)). According to the latest direction from our Circuit, the constitutional principle, unlike a personal right, is not a litigant's to waive.

In analyzing bankruptcy court authority, Waldman, more than Global Technovations, appears to focus on the effect of the bankruptcy court's decision on the parties. If the bankruptcy court is carving up the bankruptcy estate (as in the claims allowance process), its constitutional authority seems more secure; if, however, the court's judgment will augment the estate, its authority wanes. Attempting to read the constitutional tea leaves through an increasingly murky and bitter brew, the court has determined not to make a recommendation to the United States District Court regarding the various dismissal motions, but instead to resolve them.1

First, with respect to the adversary proceedings that survive the dismissal motions, the court's order will be interlocutory, not final, and therefore well within the court's authority. Second, with respect to proceedings that the court intends to dismiss, the orders will not augment the estate. Moreover, the Trustee's office is a creature of federal law, and the Trustee subjected himself to the bankruptcy court's authority by filing his pleading here, and later, by consenting to a final order (assuming such consent remains effective after Waldman). If a reviewing court disagrees, perhaps it will be possible to "recast" the form of the decision as in Waldman, but for now, the court's decision on the motions will not be precatory.


For the reasons set forth in a written opinion entered in a related adversary proceeding2 but applying to this one and many others, the court refused to dismiss the Trustee's first amended complaint, but required him to file amended pleadings comprising a more definite statement of his claims. More specifically, the court directed the Trustee to allege the date, amount, method and source of each payment included within the aggregate "Transfers" that he seeks to avoid and recover as fraudulent conveyances arising out of the Debtor's alleged Ponzi scheme. The present iteration of his complaint -- his third -- has drawn motions to dismiss in twenty-one separate adversary proceedings.3

The Second Amended Complaints filed by the Trustee in each adversary proceeding are remarkably uniform in many respects, including nearly identical background allegations. As the court did for convenience with respect to the prior dismissal motions, it will render a single ruling and enter orders in the respective adversary proceedings based on the conclusions expressed in this Opinion and Order.

In compliance with the court's earlier order requiring a more definite statement, the Trustee has identified the specific transfers he seeks to avoid, listing them by date, name of the transferor, and amount. However, in only six of the Second Amended Complaints does the Trustee seek to avoid and recover transfers that he identifies as emanating directly from the Debtor.4 In all twenty-one complaints, however, he seeks relief with respect to transfers formally made by the Related Entities.

The Trustee's efforts to recover transfers made by the Related Entities has prompted a chorus of criticism from the Defendants who, nearly in unison, argue that the Trustee lacks standing or statutory authority to recover transfers made by a non-debtor. They again seek dismissal under Fed. R. Civ. P. 12(b)(6).5

1. The Transfers at Issue

The key allegations against defendants David and Nicole Kooistra include 22 separate transfers, only two of which came directly from the Debtor:

The records relied upon by the Trustee at the time of this Complaint demonstrate that Defendants received the followingtransfers totaling Two Hundred Fifty-Two Thousand Seven Hundred and 00/100 Dollars [sic] ($263,700.00) (the "Transfers"):
a. $15,000 on 2/23/07 from WKPE
b. $11,000 on 5/8/2007 from WKPE
c. $8,000 on 3/28/07 from WKPE
d. $15,000 on 5/14/07 from WKPE
e. $10,000 on 6/1/07 from WKPE
f. $15,000 on 6/1/07 from WKPE
g. $15,000 on 6/19/07 from WKPE
h. $5,000 on 6/19/07 from WKPE
i. $25,000 on 8/8/07 from WKPE
j. $25,000 on 11/8/07 from WKPE
k. $10,000 on 11/9/07 from WKPE
l. $20,000 on 11/19/07 from WKPE
m. $13,000 on 12/11/07 from WKPE
n. $10,000 on 1/8/08 from WKPE
o. $2,200 on 8/13/08 from WKPE
p. $7,500 on 4/3/09 from WKPE
q. $10,000 on 6/28/07 from MMF
r. $22,000 on 11/24/07 from MMF
s. $1,000 on 12/4/07 from MMF
t. $10,000 on 1/18/08 from MMF
u. $6,000 on 9/16/06 from Debtor
v. $8,000 on 9/20/06 from Debtor

See Second Amended Complaint at ¶ 69. As this list reveals, of the $263,700.00 that the Trustee is seeking to avoid and recover from the Kooistras, the Trustee contends that only $14,000.00 came directly from the Debtor.

2. The Defendants' Argument and Trustee's Response

To the extent the Trustee seeks to recover Transfers made by the Related Entities (rather than the Debtor), the Defendants challenge his authority because a trustee may only avoid a "transfer of an interest of the debtor in property . . ." 11 U.S.C. § 544(b)(emphasis added). Most of the Transfers were made by MMF and WKBE, and not the Debtor. In addition to the statute, the Defendants generally rely on Judge Shefferly's opinion in Lewis v. Summers (In reSummers), 320 B.R. 630, 648-49 (Bankr. E.D. Mich. 2005) (trustee of shareholder could not avoid transfer by shareholder's wholly-owned corporation as fraudulent conveyance) and similar authorities.6

Evidently anticipating the argument against the Trustee's authority, the next paragraph in the Second Amended Complaint provides the supposed lynchpin of the case, or at least an explanation for why the Trustee seeks to avoid the Related Entities' transfers:

Based on Debtor's fraudulent scheme and use of the Entities as a conduit to his scheme, which true purpose was the facilitation of the fraud, any of the Transfers made to or from the Entities are in fact transfers made to or from the Debtor.

See Second...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT