Case: 09-10604 Document: 00511128973 Page: 1 Date Filed: 06/02/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 2, 2010
No. 09-10604
Lyle W. Cayce
Clerk
In the Matter of:
JAMES H. MOORE, III,
Debtor.
***************
THE CADLE COMPANY,
Appellant,
versus
JEFFREY H. MIMS; JAMES H. MOORE, III; ELIZABETH A. MOORE;
JHM PROPERTIES; BRUNSWICK HOMES, LLC,
Appellees.
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH, CLEMENT, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
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Appellant The Cadle Company (“Cadle”), the major creditor of the bank-
ruptcy estate of James H. Moore, III (“Moore”), appeals the district court’s af-
firmance of the bankruptcy court’s approval of a settlement of estate claims over
its objection and despite its offer to purchase the claims for higher value. We re-
verse and remand, concluding that the claims at issue could be sold as well as
compromised and that the bankruptcy court’s failure to consider the effect of
such a sale was an abuse of discretion.
I.
Cadle sued Moore in state court more than a year before Moore filed for
bankruptcy, seeking to recover a judgment it owned against him. The complaint
also named Moore’s wife Elizabeth Moore (“Elizabeth”), JHM Properties, Inc.
(“JHM”), and Brunswick Homes, LLC (“Brunswick”).1 In essence, Cadle alleged
that from 1997 to 2002, Moore used various business entities to shield his per-
sonal assets from creditors. Specifically, Cadle asserted claims of reverse veil-
piercing against Brunswick and JHM and fraudulent conveyance against JHM
and Elizabeth. It also sought a constructive trust against the assets of Bruns-
wick, JHM, and Elizabeth.
Summary judgment motions had been filed, and a ruling was pending
when Moore filed for bankruptcy, staying the litigation. The chapter 7 trustee,
Jeffrey Mims, inherited the case and retained Cadle’s attorneys as special coun-
sel.
Cadle is the estate’s largest creditor. It filed proofs of claim for roughly
$12.5 million, or 86% of the unsecured debt. Because Moore represented that he
had no assets for distribution, asset recovery litigation was the only potential
means for creditors to receive any payment. Cadle thus continued to fund the
1
Elizabeth owns 100% of JHM, which owns 50% of Brunswick; Moore was president
of Brunswick. We refer to Moore, Elizabeth, JHM, and Brunswick collectively as “defendants.”
2
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litigation after it came under the trustee’s control. It advanced over $60,000 in
attorneys’ fees to the trustee’s attorneysSSCadle’s former attorneysSSto continue
prosecution of the claims.
As the legal fees continued to mount without resolution, Cadle sought a
more active role. In January 2007, it offered to purchase the claims from the
trustee for $10,000. The trustee refused as to the amount but did not reject the
possibility of a sale. Instead, he proposed a three-part counteroffer: $150,000 in
cash; 10% of any gross recovery; and waiver of Cadle’s $12.5 million in claims
against the estate.
Cadle refused that counteroffer but continued to negotiate. It asked the
trustee either to sell the claims to it for $15,000 or to auction them to the highest
bidder. The trustee refused both options. Cadle raised the cash offer to $30,000
and continued to ask for an auction. The trustee again refused.
Meanwhile, the bankruptcy court ruled on the summary judgment motions
pending at the time of removal. It denied Brunswick’s motion but was openly
hostile to reverse veil-piercing as a viable theory under Texas law.
After the court’s ruling, the case seemed to be on course for trial. The trus-
tee asked Cadle to fund a forensic accountant, but Cadle refused unless the trus-
tee could provide a cost estimate. Apparently Cadle’s withholding of carte
blanche caused the trustee to re-evaluate the case. The trustee did not hire its
own expert and instead began negotiating a settlement with defendants. He did
not notify Cadle of this change in strategy, though Cadle had consistently dem-
onstrated a strong desire to press the case to trial. The trustee eventually en-
tered a proposed settlement of the claims with the defendants for $37,500.
Cadle first learned of the proposed settlement once the trustee had filed
his motion for approval with the bankruptcy court. Cadle contacted the trustee
and offered immediately to pay $50,000 for the claims. It also filed an objection
to the proposed settlement in the bankruptcy court, urging that the proposed
3
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settlement was essentially a sale of estate assets and that the trustee therefore
had a duty to maximize the value of the claims. Cadle argued that the trustee
could not push through a settlement for a lesser amount than the major creditor
was willing to pay the estate. Cadle asked instead that the claims be sold to it
or auctioned to the highest bidder.
At the hearing to approve the settlement, the trustee’s attorney character-
ized Cadle’s $50,000 offer as a “substantial offer” and stated that accepting it
could be in the best interest of creditors. The trustee’s attorney also acknowl-
edged that $50,000 was “substantially more than the settlement amount” and
that the objective of the trustee was to maximize the funds available to creditors
in this “no-asset case.” Finally, the attorney assured the court that either con-
ducting an auction or selling the claims to Cadle would dispose of them perman-
ently, and the court would no longer have to face this issue. R. 1171-74. The
court, however, was unconvinced that a sale was possible. It questioned whether
a trustee “can sell causes of action such as avoidance actions, particularly avoid-
ance actions.” R.1194.
A second hearing was held, and Cadle urged the same arguments. Defen-
dants responded that it would be unfair to them if the court were to upset the
proposed settlement.
In a ruling from the bench, the bankruptcy court determined that the set-
tlement was in the best interest of the estate. That conclusion was based in part
on the court’s misgivings as to whether the trustee could sell these claims. It
concluded as a matter of law that the claims could not be sold. R. 1315-16.
The court thus believed it had only two options: Approve the settlement
or require the trustee to continue litigating the claims. The court questioned
whether reverse veil-piercing is a well-grounded legal theory, reasoned that liti-
gation would be expensive for the estate, and suggested that the trustee would
have difficulty collecting any judgment. The court also believed that the views
4
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of Brunswick, as a “contingent” creditor, merited consideration, because Bruns-
wick had filed a $12 million indemnity claim against the estate, the “contingen-
cy” being the success of the reverse veil-piercing claims. The district court af-
firmed the rulings of the bankruptcy court.
II.
“We review a district court’s affirmance of a bankruptcy court decision by
applying the same standard of review to the bankruptcy court decision that the
district court applied.” Barner v. Saxon Mort. Servs., Inc. (In re Barner), 597
F.3d 651 (5th Cir. 2010) (citation and internal quotation marks omitted). We re-
view the bankruptcy court’s settlement approval for abuse of discretion and its
conclusions of law de novo. Conn. Gen. Life Ins. Co. v. United Cos. Fin. Corp. (In
re Foster Mort. Corp.), 68 F.3d 914, 917 (5th Cir. 1995). A lower court “by defini-
tion abuses its discretion when it makes an error of law.” Koon v. United States,
518 U.S. 81, 100 (1996). “Accordingly, the abuse of discretion standard includes
review to determine that the discretion was not guided by erroneous legal con-
clusions.” Browning Mfg. v. Mims (In re Coastal Plains, Inc.), 179 F.3d 197, 205
(5th Cir. 1999) (quotation omitted).
The threshold question is whether the trustee could legally sell the claims.
The bankruptcy court held that it could not and approved the proposed compro-
mise on the basis that continued litigation offered little promise for the estate.
Cadle argues it can purchase the claims from the trustee and pursue them
at its own risk and expense, paying the estate immediately for that right. It
thus contends that the court’s analysis was in error because it failed to consider
the sale alternative.
As a general matter, a trustee may sell causes of action belonging to the
estate. Section 363 of the Bankruptcy Code governs the sale, use, or lease of
property of the estate, allowing the trustee to sell “property of the estate,” other
5
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than in the ordinary course of business, after notice and a hearing. 11 U.S.C.
§ 363(b)(1). Section 541 defines “property of the estate” to include, among other
things, “all legal or equitable interests of the debtor in property as of the com-
mencement of the case.” 11 U.S.C. § 541(a)(1). “[T]he term ‘all legal and equita-
ble interests of the debtor in property’ is all-encompassing and includes rights
of action as bestowed by either federal or state law.”2 A trustee may sell liti-
gation claims that belong to the estate, as it can other estate property, pursuant
to § 363(b).3
We now turn to whether the trustee may sell the particular claims in this
case to Cadle. A trustee may sell only assets that are property of the estate. In
re Cont’l Air Lines, Inc., 780 F.2d 1223, 1226 (5th Cir. 1986). Cadle sought to
purchase its original state law action from the trustee. In that action, it asserted
claims of alter ego (reverse veil-piercing) and fraudulent conveyance; it also re-
quested a constructive-trust remedy.
A. The Alter Ego Claims.
We have previously addressed whether alter ego claims brought by a credi-
tor under Texas state law are property of the estate within the meaning of § 541.
S.I. Acquisition, 817 F.2d at 1152-53. We identified as operative the question
“whether a [debtor] corporation could assert an action against itself based upon
alter ego.” Id. at 1152. We recognized that alter ego claims are typically as-
serted by the debtor’s creditors but noted that “theoretically nothing in Texas
2
S.I. Acquisition, Inc. v. Eastway Delivery Serv., Inc. (In re S.I. Acquisition, Inc.), 817
F.2d 1142, 1149 (5th Cir. 1987) (citing Am. Nat’l Bank v. MortgageAmerica Corp. (In re Mort-
gageAmerica Corp.), 714 F.2d 1266, 1274 (5th Cir. 1983)).
3
See, e.g., Simantob v. Claims Prosecutor, LLC (In re Lahijani), 325 B.R. 282, 287
(B.A.P. 9th Cir. 2005) (“Causes of action owned by the trustee are intangible items of property
of the estate that may be sold.”); In re Nicole Energy Servs., Inc., 385 B.R. 201, 230 & n.25
(S.D. Ohio 2008).
6
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law prohibits a corporation from asserting on its own an action based on alter
ego and that in fact the underlying policy of the remedy supports this conclu-
sion.” Id. at 1153. We therefore held that the alter ego action brought by the
creditor in fact belonged to the debtor and was property of the estate within the
meaning of § 541(a)(1). Id.
Our decision in S.I. Acquisition alone, however, does not necessarily re-
solve the question whether the alter ego claims brought by Cadle actually belong
to the estate. That case dealt with a traditional veil-piercing claim, whereby a
creditor attempts to hold liable a debtor-corporation’s shareholders or its affili-
ated entities for the obligations of the debtor-corporation. Here, by contrast, Ca-
dle has brought a reverse veil-piercing claim that seeks to hold Brunswick and
JHM liable for the acts of the individual debtor, Moore.
We have previously held that distinction to be one without a difference.
In Schimmelpenninck v. Byrne (In re Schimmelpenninck), 183 F.3d 347, 358 (5th
Cir. 1999), we found error in the judgments of the bankruptcy and district courts
that “a creditor’s action based on reverse-piercing of a corporate veil does not
constitute property of the bankruptcy estate,” id. at 365, and we concluded that
the “reverse-piercing action belongs to the [trustee], not to one individual credi-
tor of the Debtor,” id. at 366. We recognize the tension between the rule and its
application: A reverse veil-piercing claim, unlike a traditional veil-piercing
claim, does not allege harm to the debtor.4 Our decisions in S.I. Acquisition and
Schimmelpenninck nevertheless control as to the alter ego claims: Those claims
are property of the estate,5 so the trustee may sell them to Cadle pursuant to
4
See Southmark Corp. v. Crescent Heights VI, Inc. (In re Southmark Corp.), 95 F.3d 53
(5th Cir. 1996) (per curiam) (unpublished) (table), 1996 WL 459958, at *6-*7 (reasoning that
allowing “the very party that abused [the corporate form] in the first place” to bring a reverse
veil-piercing action “would seem to disserve [the] purpose” of the equitable remedy).
5
Although the holding in Schimmelpenninck is in the alternative, “[a]lternative
(continued...)
7
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§ 363(b).
B. The Fraudulent-Transfer Claims
Whether an action brought under state law belongs to the estate under
§ 541(a)(1) depends on whether the debtor could have brought that action at the
commencement of the case.6 At least one of our decisions reads MortgageAmeri-
ca broadly to hold that fraudulent-transfer claims brought under Texas law are
property of the estate under § 541(a)(1).7
That reading of MortgageAmerica conflicts with S.I. Acquisition:
In addressing the Fraudulent Transfer action, we held that
under Texas law this cause of action was assertable only by a credi-
tor and did not belong to the debtor corporation [citing Mortgage-
America, 714 F.2d at 1272-73]. Even though this claim therefore
could not be treated like the other two actions, [which we held to be
property of the estate,] we nevertheless held that it also was stayed
pursuant to section 362(a)(3). Our reasoning was that while the de-
fendant in the state court action was not the debtor, but a control
person of the debtor, the creditor’s suit sought to recover property
of the debtor’s estate.
S.I. Acquisition, 817 F.2d at 1150.8
5
(...continued)
holdings are binding precedent.” Pruitt v. Levi Strauss & Co., 932 F.2d 458 (5th Cir. 1991)
(per curiam).
6
Highland Capital Mgmt. LP v. Chesapeake Energy Corp. (In re Seven Seas Petroleum,
Inc.), 522 F.3d 575, 584 (5th Cir. 2008); S.I. Acquisition, 817 F.2d at 1152; MortgageAmerica,
714 F.2d at 1275-77.
7
See Schertz-Cibolo-Universal City, Indep. Sch. Dist. v. Wright (In re Educators Group
Health Trust), 25 F.3d 1281, 1285-86 & n.5 (5th Cir. 1994) (deciding that fraudulent-transfer
conspiracy claims were property of the estate (citing MortgageAmerica, 714 F.2d at 1275)); see
also In re Bradley, 326 F. App’x 838, 839 (5th Cir. 2009) (per curiam) (“[A] claim that would
ordinarily be brought by creditors nonetheless belongs to the debtor’s estate if it pursues prop-
erty in which the debtor retains an equitable interest.” (citing MortgageAmerica)).
8
See also Seven Seas, 522 F.3d at 588 (citing S.I. Acquisition, 817 F.2d at 1150) (distin-
guishing between claims that belong to the debtor and those that seek to recover estate prop-
(continued...)
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Our decision in Educators nevertheless controls, because the above discus-
sion in S.I. Acquisition is dictum.9 Thus, under our precedent, the Texas fraudu-
lent-conveyance actions are property of the estate under § 541(a)(1) that the
trustee may sell to Cadle.10 Yet we hesitate to rest our decision entirely on that
basis, because of the conflict between Educators and S.I. Acquisition and because
of the tension between that result and the general rule that an action belongs to
the estate under § 541(a)(1) only if the debtor could have brought that action at
11
the commencement of the case.
But § 541(a)(1) is not the only provision under which property may become
property of the estate. Although that section often provides the bulk of estate
8
(...continued)
erty from a third-party).
9
In Educators, 25 F.3d at 1285-86, we faced and decided the question whether fraudu-
lent-transfer claims brought under Texas law were property of the estate under § 541(a)(1).
That decision’s reliance on MortgageAmerica was essential to its holding. See Educators, 25
F.3d at 1285 n.5. In S.I. Acquisition, by contrast, the issue was whether alter ego claims
brought under Texas law could have been brought by the debtor and therefore belonged to the
estate. The court observed that “construction of [MortgageAmerica] is crucial to resolving this
appeal,” 817 F.2d at 1148 and launched into a thorough examination of the decision, including
a discussion of claims brought under the Texas Fraudulent Transfer Act. But the fraudulent
conveyance discussion was not relevant to the holding in S.I. Acquisition. Rather, it served
to clarify that the Code’s automatic stay applies to causes of action that seek to recover estate
property held or controlled by a third party in addition to actions that belong to the debtor.
10
These are not § 548 claims. The petition was filed in May 2006. The allegedly fraud-
ulent transfers occurred between 1997 and 2002. The trustee could not avoid those transfers
by relying on § 548, because of that provision’s two-year limitations period. Only through the
Texas Fraudulent Transfers Act and its attendant four-year limitations period could the trus-
tee challenge these transfers. Compare TEX . BUS . & COM M . CODE ANN . § 24.010(a)(1) with 11
U.S.C. § 548(a)(1).
11
See S.I. Acquisition, 817 F.2d at 1150 (stating that fraudulent conveyance actions are
“assertable only by a creditor and [do] not belong to the debtor” (citing MortgageAmerica, 714
F.2d at 1272 (“An action under the Texas [Fraudulent Transfers] Act, for our purposes, does
appear to be assertable only by a debtor’s creditors.”))). See also Seven Seas, 522 F.3d at 589
& n.9 (“It is normally the debtor’s creditors, and not the debtor itself, that have the right to
assert a fraudulent transfer claim outside of bankruptcy, but in bankruptcy such a claim is
usually brought by the trustee, for the benefit of all creditors. This is because the claim is
really seeking to recover property of the estate.”) (citing MortgageAmerica, 714 F.2d at 1272).
9
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assets and thus is the focus of “property of the estate” analysis, the trustee’s
avoidance powers, allow the trustee to enlarge the property of the estate after
commencement of the case. See Gaudet v. Babin (In re Zedda), 103 F.3d 1195,
1201 (5th Cir. 1997). “The relationship between property of the estate under
§ 541 and the strong-arm powers of [§ 544] is one of the most important and
least appreciated in all of bankruptcy law. . . . Too often lawyers focus exclu-
sively on § 541 and forget that § 544 does much of the work.” D OUGLAS G. B AIRD,
E LEMENTS OF B ANKRUPTCY 125 (4th ed. 2006).
Central to this bankruptcy is the trustee’s power under § 544(b), which al-
lows him to succeed to the actual, allowable and unsecured claims of the estate’s
creditors. See 11 U.S.C. § 544(b). If an actual, unsecured creditor can, on the
date of the bankruptcy, reach property that the debtor has transferred to a third
party, the trustee may use § 544(b) to step into the shoes of that creditor and
“avoid” the debtor’s transfer. Although the cause of action belonged to one credi-
tor, any property the trustee recovers becomes estate property and is divided pro
rata among all general creditors.12 The trustee may recover the full extent of the
fraudulently transferred property on the basis of one creditor’s claim. Moore v.
Bay, 284 U.S. 4 (1931). “In other words, an entire transfer may be set aside even
though the creditor’s claim is nominal.” 5 C OLLIER ON B ANKRUPTCY ¶ 544.09[5]
(15th ed. rev. 2009).
The trustee’s successor rights arise under federal law, but the extent of
those rights depends entirely on applicable state law. That distinction creates
important differences between fraudulent transfer actions brought under
§ 544(b) and those pursued under § 548. For example, a four-year limitations
12
See 11 U.S.C. § 541(a)(3) (stating that property of the estate includes “[a]ny interest
in property that the trustee recovers under section . . . 543, 550, 553, or 723 of [the Code]”);
see also id. § 550(a) (providing that “to the extent that a transfer is avoided under section 544,
545, 547, 548, 549, 553(b) or 724(a) of [the Code], the trustee may recover, for the benefit of
the estate, the property transferred”).
10
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period applies to fraudulent transfer actions brought under Texas law, whereas
the § 548 reachback period is limited to two years. Compare T EX. B US. & C OMM.
C ODE A NN. § 24.010(a)(1) with 11 U.S.C. § 548(a)(1).
Cadle is an actual unsecured creditor that brought fraudulent-conveyance
claims against defendants under Texas law before commencement of the bank-
ruptcy. Because those claims sought to recover estate property, the automatic-
stay provisions of § 362(a)(3) barred Cadle from pursuing the fraudulent-transfer
claims individually once the petition was filed. See MortgageAmerica, 714 F.2d
at 1275. At the same time, the trustee stepped into Cadle’s shoes under § 544(b)
and assumed control of the claims for the benefit of all general creditors.
The question we must next address is whether, by operation of § 544(b),
those fraudulent-transfer claims became property of the estate that may be sold.
A split of authority exists as to whether the trustee may sell causes of action
that arise from his avoidance powers.13
We focus narrowly on the trustee’s ability to sell causes of action that he
has inherited from creditors under § 544(b)SScauses of action that exist indepen-
dent of the bankruptcy proceeding. “It is well established that a claim for fraud-
ulent conveyance is included within . . . [estate] property.” 14 “[T]he right to re
13
Compare Lahijani, 325 B.R. at 288 (“[T]he Ninth Circuit permits such actions to be
sold or transferred.” (citing Duckor Spradling & Metzger v. Baum Trust (In re P.R.T.C., Inc.),
177 F.3d 774, 781 (9th Cir. 1999); Briggs v. Kent (In re Prof’l Inv. Props. of Am.), 955 F.2d 623,
625-26 (9th Cir. 1992))); with Official Comm. of Unsecured Creditors of Cybergenics Corp. v.
Chinery (In re Cybergenics Corp.), 226 F.3d 237, 242 (3d Cir. 2000). We do not address the
broader question whether a trustee may sell all chapter 5 avoidance powers, such as the power
to avoid preferences under § 547 or to avoid fraudulent transfers under § 548. A sale of
§ 544(b) actions is nothing more than a sale of the trustee’s right to bring state law claims ex-
isting outside of bankruptcy, which is analogous to the trustee’s existing power to assign chap-
ter 5 avoidance actions to creditors.
14
Morley v. Ontos, Inc. (In re Ontos, Inc.), 478 F.3d 427, 431 (1st Cir. 2007) (§ 544
claims) (citation omitted); cf. Sherk v. Tex. Bankers Life & Loan Ins. Co. (In re Sherk), 918 F.2d
1170, 1176-77 (5th Cir.1990) (“[T]he Bankruptcy Code indicates that [§ 548] claims for fraudu-
lent transfer of the debtor’s property belong to the trustee and are property of the estate.”), ab-
(continued...)
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coup a fraudulent conveyance, which outside of bankruptcy may be invoked by
a creditor, is property of the estate that only a trustee or debtor in possession
may pursue once a bankruptcy is under way.” Nat’l Tax Credit Partners, L.P.
v. Havlik, 20 F.3d 705, 708-09 (7th Cir. 1994). Although fraudulent-transfer
claims under Texas state law could not be brought by the debtor, MortgageAm-
erica, 714 F.2d at 1272, such claims become estate property “once bankruptcy is
under way” by virtue of the trustee’s successor rights under § 544(b), Havlik, 20
F.3d at 708-09. The trustee may therefore sell these state law fraudulent-con-
veyance actions back to Cadle.15
Allowing a trustee to sell § 544(b) rights of action is in accord with the
trustee’s existing powers. In chapter 11 cases, for instance, “a party other than
the debtor or the trustee may be authorized by a plan of reorganization to exer-
cise avoidance powers.” McFarland v. Leyh (In re Tex. Gen. Petroleum Corp.),
52 F.3d 1330, 1335 (5th Cir. 1995). Outside the context of a reorganization plan,
we have consistently recognized that a single creditor may bring a chapter 5
avoidance action on behalf of the trustee after court approval.16 The Bankruptcy
Code permits an individual creditor to pursue a fraudulent-conveyance action,
for the benefit of the estate, in the name of the trustee but at the creditor’s own
risk and expense.17
14
(...continued)
rogated on other grounds, Taylor v. Freeland & Kronz, 503 U.S. 638 (1992).
15
See Lahijani, 325 B.R. at 288 (“Causes of action that exist independent of bankruptcy
are commonly sold by bankruptcy trustees under § 363(b).”).
16
City of Boerne v. Boerne Hills Leasing Corp. (In re Boerne Hills Leasing Corp.), 15
F.3d 57, 60 (5th Cir. 1994) (chapter 7); Lilly v. FDIC (In re Natchez Corp.), 953 F.2d 184, 187
(5th Cir. 1992); City of Farmers Branch v. Pointer (In re Pointer), 952 F.2d 82, 88 (5th Cir.
1992).
17
11 U.S.C. § 503(b)(3)(B); see also Lahijani, 325 B.R. at 288 n.10; Arab Monetary Fund
v. Hashim (In re Hashim), 379 B.R. 912, 920-23 (B.A.P. 9th Cir. 2007) (reviewing the historical
(continued...)
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Moreover, a sale of assets under § 363 requires notice and a hearing and
is subject to court approval. See Cont’l, 780 F.2d at 1226. Courts will look to the
trustee’s articulated business justification or sound business reasons for the pro-
posed sale. Id. Any sale of § 544(b) actions would therefore undergo careful judi-
cial scrutiny pursuant to existing § 363(b) requirements.18
We conclude, therefore, that the fraudulent-transfer claims are property
of the estate under § 541(a)(1) per Educators, 25 F.3d at 1285-86. In the alterna-
tive, the fraudulent-transfer claims became estate property under § 544(b) andSS
like other estate propertySSmay be sold pursuant to § 363(b).19
The bankruptcy court’s ruling that the claims could not be sold was legal
17
(...continued)
origins of the “creditor-recovery provision”). The Code grants that authority subject to two
conditions. The first is that the creditor recover property for the benefit of the estate. The sec-
ond is that the creditor obtain court approval, arguably as early as the date of filing, but cer-
tainly no later than the time of recovery. See id. at 922. Cadle did not move the bankruptcy
court for such authorization.
18
The sale of § 544(b) actions will not necessarily undermine core bankruptcy princi-
ples. In approving such sales, bankruptcy courts must ensure that fundamental bankruptcy
policies of asset value maximization and equitable distribution are satisfied. Bankruptcy
courts must make those decisions on a case by case basis in light of the factual circumstances.
Concerns that a creditor may recover more than its pro rata share of assets by purchas-
ing a § 544(b) action are mitigated where that creditor represents the vast majority of all out-
standing claims. Certainly no such issues arise where a single creditor holds the entirety of
estate claims. Cadle’s claims represent 86% of the unsecured debt.
19
The purchase offer need not necessarily promise a percentage of future recovery to
the estate. A set price offer provides “benefit to the estate” in the form of the sale price, which
becomes part of the estate assets. See Lahijani, 325 B.R. at 288. Bankruptcy courts may de-
termine, in any given situation, whether a sum-certain offer maximizes estate assets or wheth-
er, instead, an offer that includes a portion of future recoveries is more appropriate.
In the present case, the bankruptcy court expressed serious misgivings as to the value
of these claims and announced dim prospects for their success. Yet it refused to consider Ca-
dle’s offer, because it did not include a percentage of future recoveries for the estate. That of-
fer exceeded defendants’ by $12,500. Given the court’s assessment, it valued the prospect of
any future recovery at nearly zero, and Cadle’s offer could have maximized the value of the
claims to the estate.
13
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error, and its approval of the proposed settlement was an abuse of discretion.
The court’s failure to consider the consequences to the estate of a sale was also
an abuse of discretion.20
C. The Constructive-Trust Remedy.
“Under Texas law, a constructive trust is . . . an equitable remedy imposed
by law to prevent unjust enrichment resulting from an unconscionable act.” Ha-
ber Oil Co. v. Swinehart (In re Haber Oil Co.), 12 F.3d 426, 436 (5th Cir. 1994).
A constructive trust is not a cause of action under Texas law. The constructive-
trust remedy is appropriate on a showing of actual fraud or breach of a confiden-
tial or fiduciary relationship. Id. at 436-37 (citations omitted). “The burden of
establishing the existence of the constructive trust rests on the claimant, as does
the burden of identifying and tracing the trust property.” Id. at 436 (citations
omitted).
If Cadle had demonstrated its entitlement to a constructive trust in the
disputed properties by the time Moore filed for bankruptcy, those properties
would belong exclusively to Cadle and would not be subject to pro rata distribu-
tion among all estate creditors. Id.; see also 11 U.S.C. § 541(d). But that did not
occur; at the filing of the petition, Cadle and the defendants had only filed cross-
motions for summary judgment. The constructive-trust remedy is therefore in-
tertwined with the alter ego and fraudulent-transfer claims. Like the underly-
ing claims, that remedy belongs to the estate. Cadle may thus acquire the con-
structive-trust remedy if it successfully purchases the underlying causes of ac-
tion.
20
See Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson,
390 U.S. 414, 440-41 (1980) (holding that bankruptcy court abused its discretion by failing to
consider whether alternatives were preferable to proposed settlement).
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III.
Whether a trustee’s proposed compromise of estate claims can constitute
a proposed sale of estate property that triggers § 363 sale provisions is an issue
of first impression in this circuit. The bankruptcy court’s power to approve a
proposed settlement or “compromise” of the estate’s claims arises under rule
9019 of the Federal Rules of Bankruptcy Procedure. A proposed settlement must
be “fair and equitable” and in the best interests of the estate. Am. Can Co. v.
Herpel (In re Jackson Brewing Co.), 624 F.2d 605, 608 (5th Cir. 1980). Five fac-
tors inform the “fair and equitable” analysis: (1) the probability of success in the
litigation, with due consideration for the uncertainty in fact and law; (2) the com-
plexity and likely duration of the litigation and any attendant expense, incon-
venience, and delay, including the difficulties, if any, to be encountered in the
matter of collection; (3) the paramount interest of the creditors and a proper def-
erence to their respective views; (4) the extent to which the settlement is truly
the product of arm’s-length bargaining and not fraud or collusion; and (5) all oth-
er factors bearing on the wisdom of the compromise. See Foster Mort., 68 F.3d
at 917-18.
A sale of assets under § 363, as implemented by rule 6004, requires notice
and a hearing and is subject to court approval and must be supported by an ar-
ticulated business justification, good business judgment, or sound business rea-
sons. See Cont’l, 780 F.2d at 1226. A trustee has the duty to maximize the value
of the estate. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343,
353 (1985). As a general matter, the trustee must demonstrate that the pro-
posed sale price is the highest and best offer, though a bankruptcy court may ac-
cept a lower bid in the presence of sound business reasons, such as substantial
doubt that the higher bidder can raise the cash necessary to complete the deal.
3 C OLLIER ON B ANKRUPTCY ¶ 363.02[1][f] (15th ed. rev. 2009).
We must decide whether Cadle’s overbid required the bankruptcy court to
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scrutinize the proposed compromise under § 363 and rule 6004, in addition to
rule 9019(a). The issue has given rise to a circuit split:
The cases are mixed [] on whether the settlement of a claim that the
estate owns is a sale (that is, disposition) of property of the estate
[citing Hicks, Muse & Co., Inc. v. Brandt (In re Healthco Int’l Inc.),
136 F.3d 45 (1st Cir. 1998) (deciding that settlement is not a sale),
Goodwin v. Mickey Thompson Entm’t Group, Inc. (In re Mickey
Thompson Entm’t Group, Inc.), 292 B.R. 415 (B.A.P. 9th Cir. 2003)
(stating that settlement is a sale); In re Dow Corning Corp., 198
B.R. 214 (Bankr. E.D. Mich. 1996) (same)]. The point may be aca-
demic for purposes of whether court approval is required, because
Rule 9019 requires notice and a hearing and court approval of set-
tlements, independent of section 363(b)(1). However, there may be
other consequences, such as . . . whether overbids are permitted.
[citing Mickey Thompson].
3 C OLLIER ON B ANKRUPTCY, supra, ¶ 363.02.
The trustee argues that a bankruptcy court need not consider overbids,
because a proposed settlement amount need only be “reasonable.” Cadle urges
that the court should have considered an auction of these claims in light of its
higher offer. It asks us to adopt the reasoning of Goodwin v. Mickey Thompson
Entertainment Group, Inc. (In re Mickey Thompson Entertainment Group, Inc.),
292 B.R. 415 (B.A.P. 9th Cir. 2003). Under nearly indistinguishable factual cir-
cumstances, that court held as follows:
When confronted with a motion to approve a settlement under
Rule 9019(a), a bankruptcy court is obliged to consider, as part of
the “fair and equitable” analysis, whether any property of the estate
that would be disposed of in connection with the settlement might
draw a higher price through a competitive process and be the proper
subject of a section 363 sale.
Id. at 421-22.
The First Circuit has held, without analysis, that a settlement is not a
sale. See Hicks, Muse & Co. v. Brandt (In re Healthco Int’l, Inc.), 136 F.3d 45
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(1st Cir. 1998). That decision represents the less defensible side of the circuit
split. Courts in the Third, Sixth, and Seventh Circuits, in addition to the Mickey
Thompson court, have taken the position that a settlement may trigger § 363
requirements.21 In Dow Corning, 198 B.R. at 222 n.7, the court held that the set-
tlements at issue were the same as a sale of assets under §363(b). In Telesphere,
179 B.R. at 552 n.7, the court stated, “The settlement of a cause of action held
by the estate is plainly the equivalent of a sale of that claim.”
The Collier treatise has sided with Mickey Thompson and other courts that
have construed settlements as the equivalent of the sale of estate assets:
Compromises of Estate Claims Which Should Have Been Noticed as
a Sale
A compromise of a claim of the estate is in essence the sale of that
claim to the defendant. In most compromises, the procedures of
Rule 6004 and the substance of Code section 363 will not be impli-
cated. However, if other parties indicate that they are willing to pay
more for the claim, or if it is otherwise shown that a bidding proce-
dure would be appropriate, then the trustee must proceed under sec-
tion 363 and procedures described herein [citing Mickey Thompson].
10 C OLLIER ON B ANKRUPTCY, supra, ¶ 6004.01.
We adopt the reasoning of Mickey Thompson. The proposed compromise
was a disposition of estate property. Cadle’s higher offer obligated the bankrupt-
cy court to consider whether an auction and § 363 sale were appropriate.
“Whether to impose formal sale procedures is ultimately a matter of discretion”
that we leave to bankruptcy courts. Mickey Thompson, 292 B.R. at 422.
The trustee points out that Brunswick has agreed to waive its $12 million
21
See Myers v. Martin (In re Martin), 91 F.3d 389, 394-95 (3d Cir. 1996) (determining
that settlement agreement “compromised an asset of the debtors’ estate” that triggered § 363);
Nicole, 385 B.R. at 230 (holding that a settlement is an asset sale and applying § 363); In re
Dow Corning Corp., 198 B.R. 214, 247 (Bankr. E.D. Mich. 1996); In re Telesphere Commc’ns,
179 B.R. 544, 552 (Bankr. N.D. Ill. 1994).
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indemnity claim against the estate as a part of the proposed settlement. The
trustee argues that the proposed settlement is therefore a true compromise, un-
like the situation in Mickey Thompson.22 Brunswick’s indemnity claim is a con-
tingent claim that would be triggered only if the reverse veil-piercing claims
against it were to prevail. That would not occur, however, unless it were shown
that Brunswick and Moore are the same entity.
The merits of the indemnity claim are not before us, so we do not express
any opinion as to whether Brunswick can hold an indemnity claim against itself.
On remand, the bankruptcy court should compare the value to the estate of the
release of that claim, if any, against the value of Cadle’s higher bid. Bankruptcy
courts should not allow defendants to settle estate claims at a discount and avoid
§ 363 scrutiny by filing large, frivolous claims against the estate.23 In any event,
there is no logical reason why Cadle cannot assume the liability of that indemni-
ty claim as a part of its bid for the alter-ego action.
Cadle’s $50,000 bid was indeed a “substantial offer.” 24 Moreover, “enter-
taining overbids often triggers a bidding sequence that may lead to a much high-
er price.” Mickey Thompson, 292 B.R. at 422. Because the bankruptcy court did
not entertain Cadle’s offer and did not hold an auction, the true value of the
claims is undetermined.
The trustee’s administrative expenses are also unknown, though Cadle has
22
See Mickey Thompson, 292 B.R. at 422 n. 7 (“Functionally, there was no compromise
at all. Trustee simply attempted to sell to prospective defendants for $40,000 his cause of ac-
tion against them.”).
23
Even if Brunswick’s indemnity claim is legally viable, its value would be limited to
Brunswick’s maximum exposure in the alter-ego action. No one has ever valued that action
at $12 million; Cadle’s most optimistic estimates value it at no more than $2 million.
24
Concerns about why Cadle is willing to pay what it is willing to pay are irrelevant to
the analysis, the proper focus of which is maximization of the estate’s assets. Similarly irrele-
vant are concerns about the viability of reverse veil-piercing claims under Texas law. Cadle
has offered to bear those risks.
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already paid the trustee’s attorneys’ fees. Thus it remains to be seen what the
estate will recover from a sale or compromise of these claims. It certainly cannot
be presumed that any sale price, no matter the amount, will fail to translate to
more money for the estate.
On remand, the bankruptcy court must afford proper deference to the
views of Cadle, as the estate’s majority creditor and the only creditor to take an
interest in the claims.25 Our caselaw recognizes the paramount interest of credi-
tors and requires deference to their reasonable views concerning proposed settle-
ments. Jackson Brewing, 624 F.2d at 609. “[A] bankruptcy court may not ignore
creditors’ overwhelming opposition to a settlement.” Foster Mort., 68 F.3d at
918. In a “no-asset” case such as this, litigation claims represent the last pros-
pect of recovery for the estate. After paying over $60,000 to the trustee’s attor-
neys to prepare the case for trial, Cadle had every reason to demand that the
trustee maximize the value of the claims through an auction.
If the bankruptcy court were to upset the proposed settlement in the inter-
est of maximizing the value of estate assets, it would not work an injustice on
defendants. “Everyone who deals with a bankruptcy trustee in a transaction
that is not in the ordinary course of business is charged with the knowledge that
the law may require court approval . . . .” Mickey Thompson, 292 B.R. at 421.
A proposed settlement may bind the parties, but it does not bind the courts; oth-
erwise, the approval process would be meaningless.
In the event an auction is held and the trustee selects defendants’ offer,
the bankruptcy court must assess the transaction as both a proposed sale under
25
Although Brunswick has filed a contingent claim, its interests are directly adverse
to those of all other creditors in this matter. Brunswick’s best interest is to minimize the val-
ue of these claims. The bankruptcy court should not afford any weight to Brunswick’s views
as a creditor unless and until it has determined the likely merit of Brunswick’s indemnity
claim.
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§ 363 and a proposed compromise under rule 9019.26 Procedures under that rule
would not be invoked, however, were the trustee to accept Cadle’s bid, because
the transaction would not constitute a proposed settlement.
IV.
In summary, the claims at issue are assets of the estate that can be sold
to Cadle. The bankruptcy court’s decision to the contrary was an error of law
and therefore an abuse of discretion. We adopt Mickey Thompson. The proposed
settlement was a disposition of estate assets, and Cadle’s overbid required the
court to consider the appropriateness of an auction and § 363 sale procedures.
Its failure to consider those alternatives was also an abuse of discretion.
On remand, the bankruptcy court must determine whether the claims are
the proper subject of an auction and § 363 sale. In reaching that decision, it
should analyze the merit of Brunswick’s indemnity claim.
The judgment of the district court, affirming the decisions of the bankrupt-
cy court, is REVERSED, and this matter is REMANDED to the district court for
further proceedings not inconsistent with this opinion.
26
See, e.g., Nicole, 385 B.R. at 237 (holding that a proposed settlement of claim with
defendant, whose offer presented the only bid in auction, should be reviewed under § 363 and
rule 9019); see also Mickey Thompson, 292 B.R. at 421.
20