Alan L. Goldberg v. Howard D. Rosen , 493 F. App'x 11 ( 2012 )

Case: 12-11231 Date Filed: 10/17/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11231
Non-Argument Calendar
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D.C. Docket Nos. 1:11-cv-23232-KMM ; 10-03321-AJC
IN RE: AKRAM NIROOMAND,
Debtor.
__________________________________________________________________
ALAN L. GOLDBERG,
Plaintiff-Appellant,
versus
HOWARD D. ROSEN,
DONLEVY-ROSEN & ROSEN, P.A.,
Defendants-Appellees.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
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(October 17, 2012)
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Before CARNES, WILSON, and HILL, Circuit Judges:
PER CURIAM:
Alan Goldberg, Trustee, appeals from the district court’s Final Order
affirming the bankruptcy court’s Order and Final Judgment in this action. For the
following reasons, we shall affirm the district court’s Final Order.
I.
Alan Goldberg is the bankruptcy trustee in the Chapter 7 bankruptcy of
Debtor, Akram Niroomand. In May of 2008, a judgment of $2,930,899.97 was
entered against the Debtor.1 About a year prior to this judgment, and eighteen
months prior to filing for bankruptcy protection, the Debtor hired Howard D.
Rosen and Donlevy-Rosen & Rosen, P.A. to prepare numerous legal documents
and to create and fund the Niroomand Family Trust, an off-shore asset protection
trust. The Debtor paid the law firm $45,000 in fees and costs for these services.
At a later point, the Debtor repatriated the trust funds for fear of being held in
contempt of the judgment against her.
The Trustee brought the underlying adversary proceeding against the
defendants seeking to recover the attorneys’ fees and costs as fraudulent transfers
under 11 U.S.C. § 548. The Trustee’s theory of fraud was that the Debtor was
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The bankruptcy court found these facts after a bench trial.
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insolvent at the time of these transfers. The Trustee also asserted damage claims
for legal malpractice and unjust enrichment against the defendants.
II.
The bankruptcy court conducted a bench trial of the Trustee’s claims. The
Trustee presented only the testimony of the Debtor and then rested, although the
district court admitted “voluminous documentary and testimonial evidence.”
Included in that evidence was the Debtor’s Affidavit of Solvency executed when
she retained the defendants’ services in which she testified that she was solvent
and could pay her anticipated debts, including lawsuit judgments. The record
contained as well her Verified Answers to Written Questions. The Trustee offered
no expert testimony in support of his legal malpractice claim against defendants.
The Debtor testified that she was insolvent at the time of the transfers, but
the record evidence, including her affidavits of solvency, was used to impeach her.
As a result, the bankruptcy court did not credit her testimony. Instead, in response
to defendants’ oral motion for judgment based on partial pleadings pursuant to
Fed. R. Civ. P. 52(c), the court found the following:
The plaintiff’s case consisted of one witness, which in the first
place the Court did not find credible, but, in addition, the evidence
presented is rather clear.
While, I never found any evidence about legal malpractice, I’m
looking for what could possibly be argued as unjust enrichment. As
to the constructive fraud, fraudulent transfer, the Court thinks it’s
abundantly clear that there’s been no establishment of insolvency.
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In fact, the record is abundant with records of solvency. The
witness signed a solvency affidavit, which she said she did not read,
but the Court notes – noted that the witness could remember some
things in the way of financial numbers of a rather complicated
structure down to the penny, and other things, she couldn’t remember
at all.
But aside from that, it’s the opinion of the Court that the
plaintiff’s case is woefully lacking in any proof on any of the counts,
and, therefore, the motion to dismiss should be granted.
In denying the Trustee’s motion for a new trial, the bankruptcy court noted
that the evidence at trial “consisted solely of the testimony of witnesses whose
testimony totally supported the Defendants,” and that “the evidence in this case is
woefully lacking – in fact, the evidence is non-existent.”
In reviewing the bankruptcy court’s judgment, the district court concluded
that the evidence in support of the Trustee’s claims was “woefully lacking.” The
district court noted that there was no evidence of legal malpractice or unjust
enrichment, and that the credible evidence supported a finding that the Debtor was
solvent, not insolvent, at the time she made the transfer.
Our review of the record supports the district court’s view. We do not find
any support in the record for the Trustee’s claim that the bankruptcy court did not
consider the documentary evidence in reaching its conclusions. Nor do we find
support for the Trustee’s assertion of clear error in the bankruptcy court’s finding
that the Debtor was solvent at the time of the transfers. See Fed. R. Bankr. P.
8013; Grupo Mexicano de Desarrollo v. Alliance Bond Fund, Inc., 527 U.S. 3084
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(1999) (“findings of fact shall not be set aside unless clearly erroneous”). The
bankruptcy court heard the Debtor’s testimony and discredited it. This is entirely
within its province. Fed. R. Bankr. P. 8013. See Grupo, id. (“due regard shall be
given to the opportunity of the [bankruptcy] court to judge the credibility of the
witnesses”). Further, the record supported a finding that the Debtor was solvent at
the time of the transfer so that the bankruptcy court was entitled to make such a
finding.
Finding no clear error, we shall affirm the judgment of the district court
upholding the bankruptcy court’s Final Judgment.
There are cross-motions for sanctions pending in this case. In addition there
is a motion to strike portions of the Trustee’s reply brief. Finding no merit to
these motions, they shall be denied.
AFFIRMED. ALL PENDING MOTIONS DENIED.
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