In re Kennedy

17 Citing cases

  1. Notinger v. Migliaccio (In re Fin. Res. Mortg., Inc.)

    468 B.R. 487 (Bankr. D.N.H. 2012)   Cited 3 times
    Recognizing cases that seem to limit avoidance actions to transfers of equitable interests, but disagreeing

    In order to recover on each of these counts the Trustee must establish a common element, i.e., that each of the transfers he seeks to avoid was of “an interest of the debtor in property.” 11 U.S.C. §§ 544(b)(1), 547(b), and 548(a)(1); see Daly v. Kennedy (In re Kennedy), 279 B.R. 455, 458 (Bankr.D.Conn.2002). Section 548(a)(1) of the Bankruptcy Code, which forms the basis of Count II, states in pertinent part and with emphasis added:

  2. Stillwater Liquidating LLC v. SFN Dekalb Holdings LLC (In re Stillwater Asset Backed Offshore Fund Ltd.)

    565 B.R. 42 (S.D.N.Y. 2017)   Cited 4 times

    (See, e.g., Compl. ¶ 49) ("all of the Stillwater Assets, including the Real Property Interests ... were transferred to Gerova as part of a so-called combined merger and asset sale.") Accordingly, at the time of the bankruptcy proceedings, the asset was not part of the Debtor's estate and the automatic stay was not violated.Neither Garner v. First Nat'l City Bank, 465 F.Supp. 372 (S.D.N.Y. 1979) nor Daly v. Kennedy (In re Kennedy) , 279 B.R. 455 (Bankr. D. Conn. 2002) compels a different result here. In Garner, the court found that certain individuals engaged in conversion by appropriating shares for their own purposes from companies that they controlled through a "series of complicated transactions," receiving nothing of value in return.

  3. Gowan v. Patriot Group, LLC (In re Dreier LLP)

    452 B.R. 391 (Bankr. S.D.N.Y. 2011)

    The three cases they cite are distinguishable. In all three cases, Stevenson v. J.C. Bradford Co. (In re Cannon), 277 F.3d 838 (6th Cir. 2002) ; Daly v. Kennedy (In re Kennedy), 279 B.R. 455 (Bankr. D. Conn. 2002); and Heilbronner v.Nicosia (In re Valerino Const. Inc.), 250 B.R. 39 (Bankr. W.D.N.Y. 2000), the bankruptcy courts either determined at trial or the parties stipulated to the fact that the money used to repay the defendant was "trust money." The 5966 Account contained commingled funds, as was conceded by all parties at the Hearing, so it was not strictly speaking a "trust fund."

  4. In re Dreier LLP

    452 B.R. 391 (Bankr. S.D.N.Y. 2011)

    The three cases they cite are distinguishable. In all three cases, Stevenson v. J.C. Bradford & Co. (In re Cannon ), 277 F.3d 838 (6th Cir.2002); Daly v. Kennedy (In re Kennedy ), 279 B.R. 455 (Bankr.D.Conn.2002); and Heilbronner v. Nicosia (In re Valerino Const. Inc.), 250 B.R. 39 (Bankr.W.D.N.Y.2000), the bankruptcy courts either determined at trial or the parties stipulated to the fact that the money used to repay the defendant was “trust money.” The 5966 Account contained commingled funds, as was conceded by all parties at the Hearing, so it was not strictly speaking a “trust fund.”

  5. Ryan v. Sullivan

    316 B.R. 101 (D. Conn. 2004)   Cited 4 times

    According to Sullivan, Connecticut law only permits recovery of an alleged fraudulent transfer if the subject transfer diminished the assets of the debtor available for distribution to creditors. See, In re Kennedy, 279 B.R. 455 (Bnkr. D. Conn. 2002). Defendants reason that because the CIGA Fund was a trust, the money recovered would not be available for distribution to creditors but instead could only be distributed to the trust's beneficiaries. See, Begier v. Internal Revenue Service, 496 U.S. 53 (1990).

  6. Cadle Company v. Jones

    Nos. 3:00cv316(WWE)(LEAD), 3:00cv317(WWE) (D. Conn. Aug. 20, 2004)   Cited 4 times

    However, in accordance with the analysis discussed above relevant to count one, the Court finds that the clear and convincing evidence shows that no reasonably equivalent value was given for the transfers, and that the transferor was continuously insolvent during the relevant period. See also In re Kennedy, 279 B.R. 455 (D. Conn. 2002) (for purposes of constructive trust claim, household and other marital services do not constitute "reasonably equivalent value" in exchange for property transfers by the debtor, where no accounting of such services was provided, and where such services were of the nature to be traditionally exchanged between spouses without consideration). Accordingly, the transfers are constructively fraudulent.

  7. Coan v. Xin Chen (In re LXEng LLC)

    607 B.R. 67 (Bankr. D. Conn. 2019)   Cited 9 times
    Stating that "[f]or the Bankruptcy Code's purposes, a director, officer, person in control, general partner, or relative of any of the aforementioned persons are all insiders of a corporation"

    The purpose of the avoidance statutes is frustrated where, as here, the Debtor exercised dominion or control over the Transfer funds at issue to greatly diminish and annihilate the value of the Debtor's estate to frustrate a distribution to creditors, mainly Dow, Mrs. Little, and Attorney Cuevas. SeeDaly v. Kennedy (In re Kennedy) , 279 B.R. 455, 460 (Bankr. D. Conn. 2002). Indeed, when Attorney Cuevas sued Ms. Chen, she took a page out of her husband's playbook and began transferring funds from the TD Account to several different bank accounts, both domestically and abroad.

  8. Boscarino v. Ithaca Coll. (In re Ladipo)

    CASE No. 15-21125 (JJT) (Bankr. D. Conn. Feb. 27, 2018)

    See Def. Loc. Rule 56(a)1 Statmt, ECF No. 41. Under applicable law, by its nature, form and substance, the transfer of the proceeds of Parent PLUS loan payments to Ithaca College do not constitute a transfer of property of the Debtor's estate, as defined in 11 U.S.C §§ 548(a)(1)(B), 544(b)(1), and Conn. Gen. Stat § 52-522b. See In re Kennedy, 279 B.R. 455, 460 (Bankr. D. Conn. 2002) (holding that, for the purposes of fraudulent transfer law, the debtor must exercise dominion and/or control over the property and the transfer of such property must diminish the debtor's estate). The decisions Eisenberg v. Pennsylvania State University (In re Lewis), 574 B.R. 536 (Bankr. E.D. Pa. 2017) and Shapiro v. Gideon (In re Gideon), Case No. 15-50464, Adv. Pro. No. 16-04939 (TJT) (Bankr. E.D. Mich. Apr. 26, 2017), followed by this Court in its recent decision, Novak v. University of Miami (In re Demitrus), Case No. 15-22081, Adv. Pro. No. 17-02036 (JJT), ECF No. 32 (Bankr. D. Conn. Feb. 26, 2018) are otherwise fully dipositive of that issue, in fact and law, and support the aforesaid finding.

  9. Novak v. Univ. of Miami (In re Demitrus)

    586 B.R. 88 (Bankr. D. Conn. 2018)

    That purpose is not frustrated where, as here, the Debtor never exercised dominion or control over the funds, and the transfer of the funds did not diminish the Debtor's estate. SeeIn re Kennedy , 279 B.R. 455, 460 (Bankr. D. Conn. 2002).See, e.g.,Frontier Bank v. Brown (In re Northern Merchandise, Inc.) , 371 F.3d 1056, 1060 (9th Cir. 2004) ("[Section 548 ] seeks to prevent the debtor from depleting the resources available to creditors through gratuitous transfers of the debtor's property ...") (citation and quotations omitted); R2 Advisors, LLC v. Equitable Oil Purchasing Co. (In re Red Eagle Oil, Inc.) , 567 B.R. 615, 626 (Bankr. D. Wyo. 2017) ("The Bankruptcy Code's fraudulent transfer statute means to protect creditors from transactions that are designed to, or have the effect, of unfairly draining the assets available to satisfy creditor claims or dilute legitimate creditor claims"); Official Committee of Unsecured Creditors v. Sabine Oil & Gas Corp. (In re Sabine Oil & Gas Corp.) , 562 B.R. 211, 225 (S.D.N.Y. 2016) ("In determining whether a conveyance is fraudulent, [t]he touchstone is the unjust diminution of the estate of the debtor that otherwise would be available to creditors") (citation omitted); Ivey v.

  10. Eisenberg v. Pa. State Univ. (In re Lewis)

    574 B.R. 536 (Bankr. E.D. Pa. 2017)   Cited 11 times   4 Legal Analyses
    Adopting Oberdick and Cohen

    Although there is no formal "diminution of estate" requirement in the statutory language, the purpose of fraudulent transfer recovery is to prevent a debtor from putting assets otherwise available to its creditors out of their reach: In our quest to understand fraudulent transfer liability, we often overlook first principles. At its core, fraudulent transfer law is a debt-collection device and not a revenue generating tool; its mission is to prevent the unjust diminution of the debtor's estate.Finkel v. Polichuk (In re Polichuk ), 506 B.R. 405, 435 (Bankr. E.D. Pa. 2014)(quoting In re Consolidated Pioneer Mtge. Entities, 211 B.R. 704, 717 (S.D. Cal. 1997) ); see also Daly v. Kennedy ( In re Kennedy, 279 B.R. 455, 460 (Bankr. D. Conn. 2002) ("the subject transfer must also diminish the assets of the debtor available for distribution to creditors."). As I explain below, the proceeds from the Parent Plus loans were never Mr. Lewis' property, were never in his possession or control, and were never remotely available to pay Mr. Lewis' creditors. As a result, the Department's payment of the Parent Plus loan proceeds to Penn State did not diminish Mr. Lewis' bankruptcy estate and avoidance of these transfers would be improper and unwarranted.