Branch Banking and Trust Company v. R & S St. Rose, LLC

Filing 64

ORDER that each of the Orders of the bankruptcy court denying the appellants' motions for substantive consolidation are VACATED, and this matter is REMANDED for further proceedings consistent with this order. Signed by Judge Lloyd D. George on 3/26/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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In re:

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R & S ST. ROSE, LLC

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Debtor.

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BRANCH BANKING AND TRUST
COMPANY, SUCCESSOR IN
INTEREST TO FDIC AS RECEIVER
OF COLONIAL BANK N.A.,

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Plaintiff,

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v.

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CONSOLIDATED CASES:
Case No. 2:12-cv-01615-LDG (GWF)
Case No. 2:12-cv-01617-LDG (GWF)
Case No. 2:12-cv-01647-LDG (GWF)
Case No. 2:12-cv-01667-LDG (GWF)
Bankruptcy Case No. 11-14974-mkn
Chapter 11
Bankruptcy Case No. 11-14973-mkn
Chapter 11
Appeal Ref. No. 12-39
Appeal Ref. No. 12-40
Appeal Ref. No. 12-43
Appeal Ref. No. 12-44

R & S ST. ROSE, LLC,

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Defendant.

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AND CONSOLIDATED APPEALS
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ORDER
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Branch Banking and Trust Company, as successor in interest to FDIC as receiver of

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Colonial Bank N.A. (BB&T), and Commonwealth Land Title Insurance Company

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(Commonwealth) each appeal the bankruptcy court’s denial of their motions for substantive

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consolidation of the related Chapter 11 Bankruptcy actions of R&S St. Rose, LLC (R&S),

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and R&S St. Rose Lenders (Lenders) (jointly Debtors). Having considered the arguments

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of the parties and the record, the Court will vacate the bankruptcy court’s orders and

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remand this matter for further proceedings.

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This Court has jurisdiction to hear appeals from final judgments, orders, and

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decrees of the bankruptcy courts. See 28 U.S.C. § 158(a)(1). The bankruptcy court’s

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orders on the motions for substantive consolidation are final and subject to appeal under

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28 U.S.C. § 158(a)(1). See In re Bonham, 229 F.3d 750, 762 (9 th Cir. 2000). This Court

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reviews “the bankruptcy court's conclusions of law de novo and its findings of fact for clear

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error.” Id., at 763.
Both of the Debtors, R&S and Lenders, were formed in 2005, with each having the

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same members: Forouzan, Inc., and RPN LLC. These members were respectively owned

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and controlled by Saiid Forouzan Rad and R. Phillip Nourafchan. R&S was established to

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land-bank certain real property. To partially finance its purchase of the property, R&S

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obtained a loan from Colonial Bank (BB&T’s predecessor-in-interest).

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Lenders was established to help complete R&S’s financing of the purchase by

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raising funds from investors and then lending money to R&S in exchange for a promissory

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note and a second deed of trust. However, as noted by the bankruptcy court (and

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somewhat conceded by the Debtors below), the Debtors were “sloppy with certain

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corporate formalities during the period in which the underlying business transactions

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transpired,” and “were initially sloppy by depositing the Investment funds into R&S’s

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account and listing the funds in R&S’s tax returns.”1 That is, the investors’ checks to fund

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Having reviewed the record, the bankruptcy court’s characterization of the
Debtors’ as “sloppy” is, at best, an understatement. The record is sparse as to any effort,
prior to 2008, undertaken by the Debtors’ members, or the owners of those members, to
treat the Debtors as distinct entities. Rebecca Daniels, an em ployee of R&S Investment
since October 2005, who acted as accountant for the various R&S related entities, was not
aware of Lenders until September 2008, when she created its books and records.
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the loan from Lenders to R&S were not made out to Lenders, but instead were made out to

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R&S or to R&S Investment Group. As stated by the bankruptcy court, R&S (not Lenders)

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deposited the investment funds from the investors into its account, but Lenders executed

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promissory notes to each investor. R&S (not Lenders) made interest payments to the

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investors on the promissory notes. R&S (not Lenders) listed the investment funds on its

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tax returns until 2008. R&S did not make any payments to Lenders, and Lenders did not

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have its own bank account, books or records until 2008.

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In early 2007, Colonial Bank and R&S entered into a m odification of Colonial Bank’s

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loan to R&S. Later in 2007, R&S obtained a second loan f rom Colonial Bank which was

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used, in part, to retire the original loan. In 2008, two of the investors commenced a state

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court action against the Debtors and other related individuals and entities, as well as

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against Colonial Bank. In that same year, the Debtors also engaged in an effort to

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separate their assets. By 2009, R&S was in default on its loan to Colonial Bank. In 2010,

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the state court entered an order in the litigation commenced by the two investors. In 2011,

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the Debtors each filed voluntary petitions for bankruptcy relief under Chapter 11.

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BB&T and Commonwealth filed motions for substantive consolidation in each of the

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Debtors’ petitions, which the bankruptcy court denied. On appeal, they argue that the

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evidence they submitted below shows substantive consolidation was appropriate under

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either of the Bonham factors: (a) that the “creditors dealt with the entities as a single

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economic unit and did not rely on their separate identity in extending credit,” or (b) “the

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affairs of the debtors are so entangled that consolidation will benefit all creditors.” In re

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Bonham, 229 F.3d at 765. Both Commonwealth & BB&T argue that the bankruptcy court

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erred, in considering these factors, by improperly relying on a finding of fact from the state

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court litigation. Commonwealth further argues the bankruptcy court erred in relying on the

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issuance of promissory notes from Lenders to the individual investors, and the explanation

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proffered by R&S’s counsel as to why the Debtor’s in-house accountant was unaware of
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the existence of Lenders until 2008. BB&T also argues that the undisputed evidence was

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that R&S and Lenders were acting as a single economic unit, and that (contrary to the

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conclusion of the bankruptcy court), BB&T addressed the purpose of the proposed

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substantive consolidation.

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In its order, the bankruptcy court expressly relied upon a finding of fact from an

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order entered in the state court litigation. The bankruptcy court provided no indication of

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the basis upon which it concluded that it could adopt, as its own, the finding of fact by the

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state court.2 Both BB&T and Commonwealth note that the Debtors argued, to the

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bankruptcy court, that issue preclusion bound BB&T to the findings of the state court. They

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rely on the test for issue preclusion set out in Five Star Capital Corp. v. Ruby, 124 Nev.

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1048, 1055 (2008), which requires a showing that (1) the issue decided in the prior litigation

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was identical to the issue being decided in the current litigation, (2) the ruling must have

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been on the merits and final, (3) the party against whom the judgment was being asserted

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was a party to or in privity with a party to the prior litigation, and (4) the issue was actually

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and necessarily litigated. They further argue that the issue before the bankruptcy court

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(whether Colonial Bank treated the Debtors as a single economic unit in extending the

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2007 loan) was not and could not have been identical to an issue decided in the state court

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litigation. BB&T notes that in Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1116 (9 th

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Cir. 1999) the Ninth Circuit recognized four factors to determine whether an issue litigated

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in prior litigation was identical to an issue in current litigation: whether (1) there is

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substantial overlap in evidence, (2) the same rule of law applies, (3) the pre-trial and

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discovery in the prior litigation could have anticipated and embraced the issue as presented

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in the current litigation, and (4) the claims in each litigation are closely related. BB&T

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The bankruptcy court did note that the Debtors argued the consolidation
motion was barred by res judicata or issue preclusion, or that judicial estoppel or law of the
case applies to the instant matter.
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suggests that each of these factors weighs against a finding that the issue of Colonial

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Bank’s treatment of the Debtors was identical to issues decided by the state court. Further,

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even if the issues were identical, the appellants argue the issue was not actually and

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necessarily litigated as the state court also concluded that BB&T failed to demonstrate that

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it had received an assignment of Colonial Bank’s deed of trust, and thus BB&T could not

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proceed with its claims. Thus, any further finding of fact concerning Colonial Bank was not

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necessarily litigated. Finally, Commonwealth was not a party to the prior litigation.

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The Debtors only response to BB&T and Commonwealth’s arguments regarding
issue preclusion is that the bankruptcy court adopted a “finding of fact,” and thus

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“arguments regarding issue preclusion are not relevant.” Accepting the Debtors’ argument

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that issue preclusion is not relevant establishes only that the Debtors are unwilling to

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defend (and apparently concede they cannot defend) the bankruptcy court’s adoption of

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the state court’s finding of fact as appropriate under a theory of issue preclusion. The

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Debtors do not provide any other basis to defend the bankruptcy court’s adoption of the

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state court’s finding of fact. Accordingly, the Court finds that the bankruptcy court erred in

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adopting the state court’s finding of fact. This error is of sufficient magnitude as to vacate

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the bankruptcy court’s decision as it concerns the first Bonham factor and to remand this

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issue for further consideration without reliance on or reference to the state court order.

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The Court also finds that remand is appropriate for further consideration whether the

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appellants met their burden of showing that the investors also treated the debtors as a

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single economic unit. The bankruptcy court found that “BB&T’s arguments are largely

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based on assumptions, including that because the Investors made their investments to

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R&S, Rad or Nourachan, ‘it is only logical to assume that the [ ] Investors believed their

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investment was to [R&S] . . . not Lenders.’ Consolidation Mot. At p. 14 (emphasis added).”

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The bankruptcy court went on to conclude that “[t]hese assumptions, however, are just that

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– premises based on conjecture, which are simply too attenuated to conclusively find that
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the Investors treated the Debtors are [sic] one economic entity, or that they lent money to

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Lenders based on R&S’s financial status, or vice-versa.”

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The Court cannot discern the basis of the bankruptcy court’s determination that the

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suggested logical assumptions were “premises based on conjecture.” A conjecture

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suggests the evidence was defective, or non-existent. By contrast, courts are permitted to

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draw those inferences which reason and common sense lead the court to draw from facts

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which have been established by the evidence in the case. As noted by the bankruptcy

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court, the evidence established that the promissory notes were issued only by Lenders.

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The evidence also established, however, that the Debtors commingled the investments by

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depositing the investors’ checks into R&S’s account, 3 and that R&S’s tax returns identified

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that the investments had been made payable to R&S. The evidence also showed that R&S

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paid interest on the notes issued by Lenders. Further, the evidence established that R&S

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issued 1099-INTs to each investor. In addition to establishing all of these facts, the

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evidence further showed that the investors made their checks payable to R&S or to R&S

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Investment or to the owners or the members of the related entities, but not to Lenders.

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That the investors (1) paid R&S, R&S Investment, Rad or Nourafchan, and (2) accepted,

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without objection, a pledge for repayment from Lenders, and (3) accepted, without

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objection, repayment from R&S, and (4) accepted, without objection, 1099-INTs from R&S

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for interest paid by R&S but owed by Lenders exemplifies the circumstance of creditors

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dealing with entities as a single economic unit and not relying on their separate identity in

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extending the credit. While the burden rests on the appellants to show the creditors treated

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the Debtors as a single economic unit, appropriate inferences drawn from the evidence

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The Court also cannot perceive the relevance of the 2008 separation of funds
as discounting the Debtors’ commingling of the investors’ funds by deposit into R&S’s
account on the issue of whether the investors treated the Debtors as a single economic
unit. That the Debtors eventually separated their assets bears no significance on the issue
whether the investors who wrote checks to R&S, which checks R&S then deposited into its
account, discerned a difference between the Debtors.
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submitted by the appellants readily met their burden. The bankruptcy court’s conclusion

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that the evidence permitted only conjecture on the ultimate issues presented in considering

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the first Bonham factor, as it concerned the investors, was clearly erroneous. Accordingly,

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the Court will remand the question of whether the appellants met their burden under the

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first Bonham factor as it concerns all creditors, not merely Colonial Bank.

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By contrast, the Court cannot conclude that the b ankruptcy court erred in reaching

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its conclusion that substantive consolidation was not warranted under the second Bonham

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factor. Substantive consolidation is appropriate under this factor when “the affairs of the

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debtors are so entangled that consolidation will benefit all creditors.” In re Bonham, 229

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F.3d at 765. Such consolidation is justified only where “the time and expense necessary

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even to attempt to unscramble them [is] so substantial as to threaten the realization of any

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net assets for all the creditors,” or where no accurate identification and allocation of assets

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is possible. Id. at 766. The Court concurs with the bankruptcy court that the appellants did

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not show that the Debtors’ affairs are so grossly entangled with one another that

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disentangling is either impossible or necessary to minimize the realization of net assets

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available to creditors.

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Finally, the appellants argue that the bankruptcy court erred in finding that neither

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addressed the purpose that substantive consolidation would serve. The Court agrees.

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“Two broad themes have emerged from substantive consolidation case law: in ordering

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substantive consolidation, courts must (1) consider whether there is a disregard of

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corporate formalities and commingling of assets by various entities; and (2) balance the

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benefits that substantive consolidation would bring against the harms that it would cause.”

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Id. at 765. In considering the latter theme, the Court is mindful that the sole aim of

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substantive consolidation is fairness to all creditors; the equitable treatment of all creditors.

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Substantive consolidation is not necessarily concerned with the best interest of all of the

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creditors, but an equitable treatment of and fairness to all creditors. The best interest of
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some creditors may be to receive treatment at the expense of, and which is unfair to, other

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creditors. Such would result in the inequitable treatment of all creditors. Such inequitable

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treatment can arise through the continued recognition of a claim created between entities

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when both entities disregarded corporate formalities and commingled assets. “Orders of

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substantive consolidation combine the assets and liabilities of separate and distinct—but

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related—legal entities into a single pool and treat them as though they belong to a single

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entity.” Id. at 764. “The consolidated assets create a single fund from which all claims

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against the consolidated debtors are satisfied; duplicate and inter-company claims are

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extinguished; and, the creditors of the consolidated entities are combined for purposes of

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voting on reorganization plans.” Id. That the bankruptcy court is “not inclined to re-

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determine the priority between the loans given that the matter was determined by the State

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Court” is not an appropriate basis to conclude that substantiv e consolidation lacks a

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purpose providing for the equitable treatment of all creditors, particularly in the absence of

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any showing that it is appropriate to adopt the findings or conclusions of the state court.

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In remanding this matter, the Court is neither finding nor directing a determination

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that substantive consolidation is appropriate. That remains a matter for the bankruptcy

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court to determine. Rather, the Court has determined only that, in initially making its

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determination, the bankruptcy court committed certain errors that require it to re-visit the

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question under the first Bonham factor. Therefore, for good cause shown,

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THE COURT ORDERS that each of the Orders of the bankruptcy court denying the

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appellants’ motions for substantive consolidation are VACATED, and this matter is

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REMANDED for further proceedings consistent with this order.

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DATED this ______ day of March, 2014.

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Lloyd D. George
United States District Judge

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