The Court held that "[t]here was not statutory support protecting the funds from the debtor's creditors once she withdrew the money from her protected plan and deposited it into her personal checking account." Yoppolo v. Fifth Third Bank (In re Bostic) , 171 B.R. 270 (Bankr. N.D.Ohio 1994). Similarly, in Casarow v. Chomenko (In re Cobb) , the Court held that money withdrawn from an ERISA account and deposited into a checking account did not qualify for protections.
Pursuant to Code § 542(a), the Trustee has the right to demand the turnover of property of the estate which he may use, sell or lease under Code § 363. See generally In re Bostic, 171 B.R. 270, 274 (Bankr.N.D.Ohio 1994) (addressing right of trustee to demand turnover of property avoided as a preferential transfer); Jobin v. Resolution Trust Corp. 160 B.R. 161, 170 (D.Colo. 1993); see also Dunes Hotel, 245 B.R. at 505 (noting that "§ 542 mandates only the turnover of `property of the estate' to a bankruptcy trustee"). Accordingly, the Court concludes that while the Trustee initially has no independent cause of action based on Code § 542, he is entitled to seek turnover of property transferred to the Movants if found to have been fraudulently conveyed.
Pursuant to Code § 542(a), the Trustee has the right to demand the turnover of property of the estate which he may use, sell or lease under Code § 363. See generally In re Bostic, 171 B.R. 270, 274 (Bankr.N.D.Ohio 1994) (addressing right of trustee to demand turnover of property avoided as a preferential transfer); Jobin v. Resolution Trust Corp. 160 B.R. 161, 170 (D.Colo. 1993); see also Dunes Hotel, 245 B.R. at 505 (noting that "§ 542 mandates only the turnover of `property of the estate' to a bankruptcy trustee"). Accordingly, the Court concludes that while the Trustee initially has no independent cause of action based on Code § 542, he is entitled to seek turnover of property transferred to the Movants if found to have been fraudulently conveyed.
As the trustee has noted, actions to recover preferences and fraudulent transfers commonly involve property that was transferred pre-petition. A similar question was addressed by Judge Speer in In re Bostic, 171 B.R. 270 (Bankr.N.D.Ohio 1994). In Bostic, the Chapter 7 trustee sought to recover monies paid to a creditor from funds that the debtor had withdrawn from her ERISA qualified trust within sixty days of her petition.
As the trustee has noted, actions to recover preferences and fraudulent transfers commonly involve property that was transferred pre-petition. A similar question was addressed by Judge Speer in In re Bostic, 171 B.R. 270 (Bankr.N.D.Ohio 1994). In Bostic, the Chapter 7 trustee sought to recover monies paid to a creditor from funds that the debtor had withdrawn from her ERISA qualified trust within sixty days of her petition.
In its brief in support of the Hi-Tech's Motion for Reconsideration, Old Kent Bank suggests that the burden of proof must be sustained by clear and convincing evidence. See Yoppolo v. Fifth Third Bank of NW Ohio (In re Bostic), 171 B.R. 270, 274 (Bankr. N.D.Ohio 1994) (citing In re Bloom, 91 B.R. 445 (Bankr.N.D.Ohio 1988)) The clear and convincing standard is based on a pair of older Supreme Court cases that were decided before the enactment of the current Bankruptcy Code in 1978. See Maggio v. Zeitz, 333 U.S. 56, 64, 68 S.Ct. 401, 405-06, 92 L.Ed. 476 (1948); Oriel v. Russell, 278 U.S. 358, 362, 49 S.Ct. 173, 174, 73 L.Ed. 419 (1929).
See, In re Reid, 139 B.R. 19, 21 (Bankr.S.D.Cal. 1992), In re Toone, 140 B.R. 605 (Bankr.Mass. 1992), and Yoppolo v. Fifth Third Bank (In re Bostic), 171 B.R. 270 (Bankr.N.D.Ohio 1994). This court finds the above authority persuasive in reaching its conclusion that the transfers made by the Debtor to Bank One are recoverable by the Trustee.