United States District Court, S.D. New York
OPINION AND ORDER
JESSE M. FURMAN, District Judge.
On May 23, 2012, Plaintiff Korea Trade Insurance Corporation ("Plaintiff") secured a default judgment against Defendant Neema Clothing, Ltd. ("Neema") (Docket No. 15). But Plaintiff has not yet been paid. Thus, Plaintiff filed a Judgment Creditor's Special Petition for Turnover Order (Docket No. 17) ("Turnover Petition") seeking to recover from Respondent James Ammeen, Sr. ("Respondent"), Neema's founder, Chief Executive Officer, and majority shareholder. Plaintiff originally asserted two claims: (1) that it was entitled to a turnover order based on an alleged fraudulent conveyance from Neema to Respondent; and (2) that Respondent was personally liable to Plaintiff based on theories of alter ego and veil piercing. On June 25, 2014, the Court determined that it had subject matter jurisdiction only over the fraudulent conveyance claim, and dismissed the petition to the extent that it brought independent claims against Respondent on an alter ego theory. (Docket No. 32). For the reasons explained below, the Court will hold a trial to resolve the fraudulent conveyance claim.
As noted, Respondent is Neema's founder, CEO, and majority shareholder. (Decl. R. Zachary Gelber Supp. Pl. J. Creditor's Special Pet. Turnover Order Pursuant N.Y. CPLR § 5225(b) & Finding Neema's Majority Shareholder Personally Liable Outstanding J. (Docket No. 19) ("Gelber Decl."), Ex. A. at 20, 29-30, 39-40). Neema became insolvent in 2011. ( Id., Ex. A at 49). In December of that year, Plaintiff filed this lawsuit against Neema, alleging that Neema had not paid for goods purchased from a company that had assigned its rights to Plaintiff. (Docket No. 1). The following month, Respondent began transferring a total of $1, 855, 980 from Neema's corporate accounts to his personal accounts. ( Id., Ex. B at 238-39; Ex. D. at 2-4). Respondent claims that the transfers were payments by Neema on a series of loans that he had allegedly made to the company. ( Id., Ex A at 143-44; Ex. D at 2-4).
In May 2012, Plaintiff secured a default judgment against Neema in the amount of $966, 347.80. (Docket No. 15). Neema has not paid any part of that judgment. (Pl. J. Creditor's Mem. Law Supp. Special Pet. Turnover Order Pursuant N.Y. CPLR § 5225(b) & Finding Neema's Majority Shareholder Personally Liable Outstanding J. (Docket No. 18) ("Pl.'s Mem.") 6). Accordingly, Plaintiff seeks an order requiring Respondent to return the money he received from Neema so that it can satisfy the judgment. (Docket No. 17).
"In a special turnover proceeding based on New York law, made applicable pursuant to Rule 69 [of the Federal Rules of Civil Procedure], a court may grant summary relief where there are no questions of fact, but it must conduct a trial on disputed issues of fact on adverse claims in a turnover matter." Cordius Trust v. Kummerfeld, No. 99-CV-3200 (DLC), 2004 WL 616125, at *6 (S.D.N.Y. Mar. 30, 2004) (internal quotation marks omitted), aff'd in part, vacated in part, 153 F.Appx. 761 (2d Cir. 2005); see also In re Port of N.Y. Auth., 18 N.Y.2d 250, 255 (1966) (holding that the summary judgment standard applies to CPLR special proceedings). Accordingly, "[s]ummary relief may not be granted unless the submissions of the parties taken together show that there is no genuine [dispute] as to any material fact and that the moving party is entitled to a judgment as a matter of law." Cordius Trust, 2004 WL 616125, at *6 (internal quotation marks omitted). As with a motion for summary judgment, "[t]he moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)).
Plaintiff alleges that Neema's transfer of nearly $2 million to Respondent was a fraudulent conveyance. Under New York law, a plaintiff may prevail on a fraudulent conveyance claim if: (1) the conveyance was made without fair consideration; (2) the conveyor is a defendant in an action for a money judgment or has had a judgment in such action docketed against him; and (3) the defendant has failed to satisfy the judgment. See, e.g., Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 188 (2d Cir. 2006) (citing N.Y. Debtor and Creditor Law ("DCL") § 273-a). The defendant's intent is irrelevant. See N.Y. DCL § 273-a; see also Bank of Commc'ns v. Ocean Dev. Am., Inc., 904 F.Supp.2d 356, 359-60 (S.D.N.Y. 2012). Here, there is no dispute that the second and third requirements are met: Plaintiff obtained a money judgment in its action against Neema, and Neema has thus far failed to satisfy the judgment. Accordingly, the sole issue is whether the first requirement - the absence of fair consideration - has been met. ( Compare Pl.'s Mem. 10-12 with Resp't James Ammeen's Mem. Law Opp'n Pl.'s Pet. Turnover Order Pursuant N.Y. CPLR 5225(b) (Docket No. 33) ("Resp't's Mem.") 4-10 (contesting only the question of fair consideration)).
Consideration for property is fair if: (1) "in exchange for such property... as a fair equivalent therefore, and in good faith, property is conveyed or an antecedent debt is satisfied"; or (2) the property is "received in good faith to secure a present advance or antecedent debt in amount not disproportionately small as compared with the value of the property... obtained." N.Y. DCL § 272. Accordingly, fair consideration' requires not merely that the value of the consideration be roughly equivalent to the property in issue but also that there be good faith on the part of the parties involved in that conveyance." United States v. McCombs, 30 F.3d 310, 326 n.1 (2d Cir. 1994). Plaintiff cites a long line of cases for the proposition that "preferential transfers to directors, officers and shareholders of insolvent corporations in derogation of the rights of general creditors do not fulfill the good faith requirement of the Debtor and Creditor Law." Farm Stores, Inc. v. Sch. Feeding Corp., 477 N.Y.S.2d 374, 378 (A.D.2d Dept. 1984); see also, e.g., HBE Leasing Corp. v. Frank, 48 F.3d 623, 634-35 (2d Cir. 1995); Dixie Yarns, Inc. v. Forman, 906 F.Supp. 929, 937 (S.D.N.Y. 1995). (Pl.'s Mem. 10-12). In light of those cases, Plaintiff argues, the transfers here were, as a matter of law, made without fair consideration and, by extension, it is entitled to judgment as a matter of law.
The problem with Plaintiff's argument is that Respondent claims to have been a secured creditor of Neema. (Resp't's Mem. 5-9). The rationale for the general rule that transfers to insiders are deemed to be per se lacking in fair consideration is that they are "preferential" and, thus, "in derogation of the rights of general creditors." Farm Stores, 477 N.Y.S.2d at 378. As at least two other courts have recognized, however, that rationale does not hold where the transfer satisfies a secured obligation. See In re Northstar Dev. Corp., 465 B.R. 6, 13-14 (Bankr. W.D.N.Y. 2012) (holding that a transfer to an insider who is a secured creditor was not in bad faith because "[a]s a general rule, ... no preference occurs upon the payment of a secured debt"); Rebh v. Rotterdam Ventures Inc., 716 N.Y.S.2d 457, 458-59 (A.D.3d Dep't 2000) (denying plaintiffs' fraudulent conveyance claim because there was no "inequitable consequence to plaintiffs" when a secured creditor preferred his own claims). As the Northstar Court explained, "no preference occurs upon the payment of a secured debt. For a preference to arise, a creditor must realize some improvement in position. The satisfaction of secured debt causes no improvement of position, in that the transfer represents only an exchange of value for the equivalent release of collateral." 465 B.R. at 14 (citations omitted). The Court agrees. Accordingly, it is not enough for Plaintiff to rely solely on the fact that Respondent was an insider to establish that the transfers from Neema were lacking in fair consideration.
The question becomes, then, whether there is a genuine issue of material fact with respect to Respondent's status (or lack thereof) as a secured creditor. Respondent contends that he is entitled to be repaid for money that Neema's senior creditor took from him when Neema became insolvent. (Resp't's Mem. 5-10). Specifically, Respondent alleges that he had pledged $6 million of his own money as collateral to Neema's senior lender, CIT, so that Neema could obtain a loan. (Gelber Decl., Ex. B at 211). When Neema failed, CIT foreclosed on that collateral. ( Id. ). Respondent argues that, by acting as a surety, he became subrogated to all of CIT's rights, including the right to repayment. (Resp't's Mem. 9-10). Consequently, he claims, "he had the right to recoup from Neema's remaining assets the full $6, 000, 000 he had paid as guarantor of Neema's debts." ( Id. at 10). In support of his contention, Respondent cites cases for the proposition that, when a surety discharges the primary debtor's obligation, he or she is generally entitled to a right of subrogation. See, e.g., Chem. Bank v. Meltzer, 93 N.Y.2d 296, 302-04 (1999).
Subrogation rights, however, can be waived. See, e.g., S.Q.K.F.C., Inc. v. Bell Atl. Tricon Leasing Corp., 84 F.3d 629, 635-36 (2d Cir. 1995) (dismissing a fraud claim when the guaranty provided that "Guarantor expressly waives any and all rights of subrogation"); accord Tsakopolous v. Alameda Invs., LLC, No. 13-CV-1917 (JGB), 2014 U.S. Dist. LEXIS 135325, at *8-21 (C.D. Cal. Sept. 24, 2014). And here, the contract that Respondent himself initially submitted with his opposition explicitly provided that any subrogation rights that he may have had were waived. (Decl. James M. Hirschhorn (Docket No. 33) ("Hirschhorn Decl."), Ex. 10 at 2-3). Nevertheless, after the Court requested supplemental briefing on the issue (Docket No. 37), Respondent submitted revisions to the contract stating that "[a]fter all of the Obligations have been paid in full and the Agreements have been terminated, the undersigned shall be subrogated to [CIT's] rights." (Decl. James Ammeen (Docket No. 40), Ex. 2 at 1-2; see also id., Ex. 1 at 2). Plaintiff argues that Respondent has not met his burden, even under that amended agreement, because he has not shown that CIT was ever paid in full. But Respondent testified at his deposition that CIT had been "paid off' (Gelber Decl., Ex. B at 254), and he submitted a March 2, 2012 Termination Agreement signed by CIT, Neema, and Respondent, which states that the factoring agreements between CIT and Neema are "terminated, canceled and of no further force and effect" (Hirschhorn Decl., Ex. 11 at 1). Taken together, those documents are sufficient to create a material question of fact as to whether CIT was repaid.
That does not end the analysis, however, as Respondent cannot rely on the Termination Agreement to create a genuine factual dispute with regard to the payments made prior to March 2, 2012, the Agreement's effective date. (Hirschhorn Decl., Ex. 11 at 1). Moreover, Respondent has not demonstrated that he could have been subrogated to CIT's rights between March 2, 2012, and October 5, 2012, as CIT maintained a security interest in Neema's assets until the later date. (Decl. R. Zachary Gelber (Docket No. 49) ("Second Gelber Decl."), Ex. 2). See Restatement (First) of Security § 141(b) & cmt. e; Rabo Agrifinance, Inc. v. Terra XXI Ltd., No. 06-CV-153 (MLR), 2007 WL 2446278, at * 10 (N.D. Tex. Aug. 29, 2007) ("If the collateral for the obligation paid by the surety also secures the principal debtor's other obligations to the creditor, then the surety may not acquire a subrogated interest in the collateral till someone satisfies the other obligations."). Finally, Respondent has introduced no evidence demonstrating that he perfected his security interest in Neema's assets subsequent to October 5, 2012, through the filing of a financing statement, see Cal. U. Comm. Code § 9310(a), and has made no argument that a financing statement was not required in his case. Accordingly, Respondent has not shown that he was entitled to any subrogation rights either before or after October 5, 2012.
Separate and apart from the question of whether Respondent was subrogated to CIT's rights as a secured creditor, Respondent argues that he was entitled to payment as a secured creditor because he had made several loans to Neema that the company had not yet repaid. Here too, Plaintiff offers compelling reasons to be skeptical of Respondent's assertions. First, Neema's failure to pay the loans prior to insolvency could support an inference that Respondent did not act in good faith. ( See Reply Br. Supp. Pl. J. Creditor's Special Petition Turnover Order Pursuant N.Y. CPLR § 5225(b) (Docket No. 36) ("Pl.'s Reply Mem.") 3-5). Second, for a security agreement to be valid under New York law, there must be a writing that shows "intent to form a security interest, authentication and a description of the security, " Stearns v. Empower Federal Credit Union, No. 09-BR-30148 (MMC), 2009 WL 4330832, at *3 (Bankr. N.D.N.Y. Nov. 30, 2009), and there is no single such writing between Respondent and Neema. ( See Pl.'s Reply Mem. 6-7). With respect to the first contention, however, the Court is required to draw all inferences in Respondent's favor, and the inference that Plaintiff seeks to draw is not the only permissible inference. And with respect to the latter contention, "courts have read several documents together and looked at the surrounding circumstances to find the existence of security agreements." In re Bucala, 464 B.R. 626, 631 (Bankr. S.D.N.Y. 2012). Here, while a close call, the documents that Respondent offers as proof of his security interest - several signed notes (Hirschhorn Decl., Ex. 1) and two unsigned security agreements ( Id., Ex. 2, Ex. 3) - are sufficient, when read together, to ...