Laizure v. Bussetto Foods, Inc. ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: CHARLES LAIZURE; 
JULIE ANN LAIZURE,
Debtors,
No. 06-16857
BUSSETO FOODS, INC.,  BAP No.
EC-06-1112-BMoS
Appellant,
OPINION
v.
CHARLES LAIZURE,
Appellee.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Brandt, Montali, and Smith, Bankruptcy Judges, Presiding
Argued and Submitted
May 16, 2008—San Francisco, California
Filed November 17, 2008
Before: Procter Hug, Jr. and N. Randy Smith, Circuit Judges,
and Richard Mills,* District Judge.
Opinion by Judge Hug
*The Honorable Richard Mills, United States District Judge for the
Central District of Illinois, sitting by designation.
15405
IN THE MATTER OF LAIZURE 15407
COUNSEL
Michael Wilhelm, McCormick, Barstow, Sheppard, Wayte &
Carruth LLP, Fresno, California, for the appellant.
15408 IN THE MATTER OF LAIZURE
Kristine M. Kelly, Fresno, California, for the appellee.
OPINION
HUG, Circuit Judge:
In this bankruptcy case, we determine whether a creditor
that is required to return to the trustee a payment from the
debtor made within the ninety-day preference period still
maintains a claim against the debtor for a nondischargeable
claim. Busseto Foods, Inc. (“Busseto”) contends that the pay-
ment it was required to pay to the trustee was a repayment of
funds embezzled by the debtor, Charles Laizure, and thus a
nondischargeable claim. The Bankruptcy Appellate Panel
(“BAP”), in affirming the bankruptcy court, held that 11
U.S.C. § 502(h) only allows Busseto to bring a claim against
the bankruptcy estate and not against the debtor, Laizure.
We have jurisdiction pursuant to 28 U.S.C. § 158(d)(1) and
we reverse the decision of the BAP and remand for further
proceedings.
I.
Busseto employed Charles Laizure as its controller and
chief financial officer from February 1, 1998 until August 20,
2004. After Laizure left, Busseto discovered he had embez-
zled a large amount of money during his employment. After
admitting he took the money, Laizure agreed to repay the
funds in installments. He first paid Busseto $10,000 in
December 2004 and then $30,000 on February 18, 2005. On
June 5, 2005, Laizure arranged a final payment of $38,833.70
to Busseto to be paid directly from escrow upon the closing
of the sale of his house. Shortly thereafter escrow closed and
Busseto received the final payment.
IN THE MATTER OF LAIZURE 15409
Less than ninety days after the $38,833.70 payment to
Busseto, Laizure filed a Chapter 7 bankruptcy petition on
August 17, 2005. After learning of Laizure’s June payment to
Busseto, the Chapter 7 trustee pursuant to 11 U.S.C. § 547sent Busseto a letter demanding the return of the $38,833.70
because Laizure had made the payment during the ninety-day
preference period.
Busseto and the trustee then engaged in negotiations to set-
tle the matter. Fearing the negotiations would not resolve the
issue as the nondischargeability filing deadline approached,
Busseto filed the complaint at issue here on November 17,
2005 to determine the amount and dischargeability of Lai-
zure’s debt.1 The complaint alleged that, because of Laizure’s
embezzlement and other conduct involved with the debt, any
amount returned to the trustee pursuant to the demand should
be held nondischargeable under 11 U.S.C. § 523(a)(4).
After filing the complaint, Busseto agreed with the trustee
to pay the estate $34,000 to resolve the preference matter.
Busseto then filed a claim against the bankruptcy estate for
$34,000. During the bankruptcy proceedings, the trustee col-
lected only a total of $34,628.83, $34,000 of which came
from Busseto. After deducting compensation and expenses for
the trustee in the amount of $4,253.38, the balance of
$30,375.45 was used to pay Laizure’s priority tax claims.
While the estate was being settled, Laizure filed a motion
in bankruptcy court to strike Busseto’s November 17 com-
plaint or in the alternative, for a more definite statement. The
bankruptcy court granted Laizure’s motion to dismiss Busse-
to’s complaint under Fed. R. Civ. P. 12(b)(6) for failure to
state a claim upon which relief can be granted. The bank-
ruptcy court reasoned that “there was no debt on the day the
bankruptcy was filed” because Busseto was fully repaid at
1
The deadline for filing nondischargeability complaints was November
22, 2005.
15410 IN THE MATTER OF LAIZURE
that time. In addition, no debt existed on the date the com-
plaint was filed because Busseto had not yet returned any
money to the estate on that date. The bankruptcy court also
found that § 502(h) does not “revive . . . individual liability
that can be imposed . . . on the debtor.” Busseto then appealed
this decision to the Bankruptcy Appellate Panel.
On appeal to the BAP, Busseto argued that § 502(h) rein-
stated its claim against Laizure after Busseto paid the settle-
ment of the trustee’s claim. However, the BAP, in affirming
the bankruptcy court, concluded that § 502(h) does not permit
Busseto to “reinstate[ ] its claim against the debtor once it
paid the settlement of the trustee’s claim.” Busseto Foods,
Inc. v. Laizure (In re Laizure), 349 B.R. 604, 607 (B.A.P. 9th
Cir. 2006). The BAP emphasized that it read the relevant stat-
utes to say that, under § 502(h), Busseto could bring a claim
against the estate but not the debtor. Id.
The BAP also briefly addressed the bankruptcy court’s rul-
ing that no debt existed on the petition date and Busseto’s
counter-argument that it did have a contingent claim under the
Code’s broad definition of “claim.” Id. at 607-08. The BAP
agreed with the bankruptcy court that no claim existed on the
petition date and further stated that even if Busseto had a con-
tingent claim on the petition date, § 727(b) would likely
“eviscerate [Busseto’s] position.” Id. at 608.
II.
We review BAP decisions de novo and apply the same
standard that the BAP uses to review bankruptcy court deci-
sions Arrow Elec., Inc. v. Justus (In re Kaypro), 218 F.3d
1070, 1073 (9th Cir. 2000). The BAP reviews de novo a bank-
ruptcy court’s dismissal of a claim pursuant to 12(b)(6), Stoll
v. Quintanar (In re Stoll), 252 B.R. 492, 495 (B.A.P. 9th Cir.
2000); therefore, we apply the same standard here.
[1] Generally, § 502(h) allows claims arising from recovery
of property by the trustee under § 550 the same as if the claim
IN THE MATTER OF LAIZURE 15411
had arisen before the filing date of the bankruptcy petition.
See Verco Indus. v. Spartan Plastics (In re Verco Indus.), 704
F.2d 1134, 1139 (9th Cir. 1983); see also 4 COLLIER ON
BANKRUPTCY ¶ 502.09 (15th ed. 2008). Subsection 502(h)
states in whole:
A claim arising from the recovery of property under
section 522, 550, or 553 of this title shall be deter-
mined, and shall be allowed under subsection (a),
(b), or (c) of this section, or disallowed under sub-
section (d) or (e) of this section, the same as if such
claim had arisen before the date of the filing of the
petition.
11 U.S.C. § 502(h). Simply stated, if the claim meets certain
requirements the claimant can bring the claim as if it had
arisen before filing the petition.
[2] In this case, the trustee avoided Laizure’s final transfer
to Busseto under § 547 and recovered the $34,000 under
§ 550. According to the language of § 502(h), the trustee,
through using this § 550 recovery ability, revived Busseto’s
claim to prepetition status. Consequently, Busseto has a claim
against Laizure “the same as if . . . [it] had arisen before the
date of the filing of the petition.” 11 U.S.C. § 502(h).
The bankruptcy court dismissed Busseto’s claim under Fed.
R. Civ. P. 12(b)(6) because “there was no debt on the day the
bankruptcy was filed” and Busseto had not yet returned any
money to the estate on the date the complaint was filed. The
bankruptcy court also found that § 502(h) does not “revive . . .
individual liability that can be imposed . . . on the debtor.”
Although it admitted feeling sympathetic toward Busseto, the
bankruptcy court believed it had no statutory ability to rem-
edy the situation and dismissed Busseto’s complaint.
In affirming the bankruptcy court, the BAP narrowly read
§ 502(h) as only allowing Busseto to pursue a claim against
15412 IN THE MATTER OF LAIZURE
the bankruptcy estate and not the debtor. In re Laizure, 349
B.R. at 607. This interpretation prevented Busseto from pur-
suing a claim against Laizure personally and effectively left
Busseto unable to recoup any of the money it paid to the
estate because all of the money in the estate was used to pay
the trustee’s fees and the priority tax claims.
The BAP’s conclusion, however, conflicts with our prece-
dent as well as the relevant statutory language. In In re Verco
we stated:
[T]he import of Section 502(h) is that where a claim
is allowable as provided in that section, its status is
as a claim in existence on the date of the filing of the
petition regardless of when, after the petition, the
trustee has taken the necessary action and recovered.
704 F.2d at 1139 (quoting 3 COLLIER ¶ 502.08 at 502-92 n.6).
The trustee’s action in the instant case clearly reinstates the
claim; however, Laizure contends that the action does not
reinstate the nondischargeable claim against him as the
debtor.
If the debt to Busseto is dischargeable, the bankruptcy pro-
ceeding would discharge the debt. However, if the debt is
nondischargeable, and there had been no preference avoid-
ance by the trustee, the debt would have remained nondischar-
geable. Thus, the question we face is whether the trustee’s
action in requiring Busseto to pay to the bankruptcy estate the
amount it received from Laizure deprived Busseto of its non-
dischargeable claim.
The BAP held that § 502(h) pertains only to claims against
the bankruptcy estate, not to claims against the debtor. In re
Laizure, 349 B.R. at 607. It relied on the wording of § 502(h)
that a claim arising from property recovered as a preference
shall be allowed or disallowed under various subsections of
§ 502(h). Id. (citing 11 U.S.C. § 502(h)). However, the lan-
IN THE MATTER OF LAIZURE 15413
guage of § 502(h) is broader than that. Again, this subsection
provides that a “claim arising from the recovery of property
under section . . . 550 . . . of this title shall be determined, and
shall be allowed . . . or disallowed . . . , the same as if such
claim had arisen before the date of the filing of the petition.”
11 U.S.C. § 502(h) (emphasis added).
[3] This statutory language is notable for two reasons. First,
the wording of the subsection requires a § 550 claim to be
“determined.” There would be no reason to require a § 502(h)
determination if it were subsumed by allowability, so the
plain language of § 502 demonstrates that the determination
is an independent inquiry. Second, the statute’s use of the
word “and” shows Congress’ intent to reinstate both deter-
mined and allowed claims.
[4] Section 523 further explains the import of the word “de-
termination.” The phrase “determination of dischargeability”
appears twice in § 523. See 11 U.S.C. § 523(a)(3)(B), (d).
This phrase is significant because § 523 states that a “dis-
charge under section 727 . . . of this title does not discharge
an individual debtor from any debt.” § 523(a) (emphasis
added). “Any debt” is certainly broad enough to apply to per-
sonal claims, so if a claim is determined to be nondischarge-
able, § 523 allows that claim to be brought against the
individual debtor. Thus, if a § 550 claim is determined to be
nondischargeable under § 502(h), § 523 permits that rein-
stated claim to be brought against the debtor personally.
We have found only one case from other circuits that ana-
lyzes § 502(h) and note that it reaches a similar conclusion.
The First Circuit analyzed the language of § 502(h) as it
related to the secured or unsecured status of a claim. Fleet
Nat’l Bank v. Gray (In re Bankvest Capital Corp.), 375 F.3d
51 (1st Cir. 2004). In reading § 502(h), the First Circuit con-
cluded that “the natural import of [§ 502(h)’s] language—
especially the words ‘shall be determined, and shall be
allowed . . . the same as if such claim had arisen before the
15414 IN THE MATTER OF LAIZURE
date of the filing of the petition’—is that the 502(h) claim
takes on the characteristics of the original claim, including
. . . its secured status.” Id. at 67 (quoting 11 U.S.C. § 502(h))
(emphasis added). The First Circuit supported this conclusion
by noting that § 506 used the phrase “determination” of
secured status. In re Bankvest Capital Corp., 375 F.3d at 67
(citing 11 U.S.C. § 506). This conclusion allowed the First
Circuit to reinstate the creditor’s claim to its prepetition sta-
tus, just as we do here. Further, the First Circuit concluded
there was “no reason, nor any indication of legislative intent
in § 502(h), to strip a secured creditor of its secured claim.”
In re Bankvest Capital Corp., 375 F.3d at 67.
[5] We reach essentially the same conclusion here. By
avoiding Laizure’s repayment to Busseto, the trustee put
Busseto in a position where it was still not fully repaid the
total amount of Laizure’s embezzled funds. Under § 502(h),
Busseto therefore returned to the same position it was in
before Laizure made the final repayment. Without recourse
through § 502(h), Busseto would never recoup the embezzled
funds. To read § 502(h) otherwise would negate the impact
and role § 502(h) plays in the overall statutory scheme.
Accordingly, we hold that Busseto retains its nondischarge-
able claim against Laizure just as the First Circuit held that
Fleet retained its status as a secured creditor.
County of Sacramento v. Hackney (In re Hackney) supports
our holding. 93 B.R. 213 (Bankr. N.D. Cal. 1988). In that
case, the bankruptcy court in the Northern District of Califor-
nia analyzed § 502(h)’s language and directly addressed these
issues in a remarkably similar situation to that present here.
There, the debtor was convicted of welfare fraud and ordered
to pay restitution to the County of Sacramento. Id. at 214.
Less than ninety days after making the restitution payment to
the County, the debtor filed a Chapter 7 bankruptcy, and the
trustee ordered the County to return the restitution payment
because the payment was made during the ninety-day prefer-
ence period. Id. The County then filed an action against the
IN THE MATTER OF LAIZURE 15415
debtor, seeking a declaration that its § 502(h) claim based on
the returned restitution payment was nondischargeable. Id.
The court granted the County’s summary judgment motion,
holding that “the avoidance of a transfer under the bankruptcy
avoiding powers cited in 11 U.S.C. § 502(h) reinstates the
transferee’s nondischargeable claim against the debtor.” Id. at
219.
[6] In reaching this conclusion in a carefully reasoned opin-
ion, the court specifically addressed whether § 502(h) applied
solely to claims against the estate and not the debtor. After
reading the relevant statutory language and case law, includ-
ing In re Verco, the court concluded that “the claim arising
from the avoidance of a transfer under 11 U.S.C. § 502(h) is
a claim against the debtor, not just a claim against the estate.”
In re Hackney, 93 B.R. at 217. Thus, In re Hackney bolsters
our holding that § 502(h) reinstates a claim against the debtor
and its nondischargeable status.
In addition to its main findings, the BAP determined that
even if Busseto had a claim, § 727(b) would likely foreclose
it by discharging any claim arising under § 502. See In re Lai-
zure, 349 B.R. at 608. However, this statement ignores very
key introductory wording in § 727(b), which excepted claims
brought pursuant to § 523. See 11 U.S.C. § 727(b) (“Except
as provided in section 523 of this title . . .”). Here, Busseto
brought its claim under § 523(a)(4), which states:
A discharge under section 727 . . . of this title does
not discharge an individual debtor from any debt . . .
for fraud or defalcation while acting in a fiduciary
capacity, embezzlement, or larceny.
11 U.S.C. § 523(a)(4). Reading both statutes according to
their clear and plain meaning, § 727 does not foreclose Busse-
to’s argument. Instead, § 727 does not apply because it
excepts claims brought under § 523, such as Busseto’s claim
against Laizure for embezzlement.
15416 IN THE MATTER OF LAIZURE
[7] Finally, this conclusion best advances the policies of
our bankruptcy laws. As the Supreme Court has explained,
“the Act limits the opportunity for a completely unencum-
bered new beginning to the honest but unfortunate debtor.”
Grogan v. Garner, 498 U.S. 279, 286-87 (1991) (citations and
internal quotations omitted). The Court later stated that these
“statutory provisions governing nondischargeability reflect a
congressional decision to exclude from the general policy of
discharge certain categories of debts . . . [including] liabilities
for fraud.” Id. at 287. Here, allowing Laizure to avoid repay-
ing the funds he embezzled from Busseto would contravene
Congress’ intent. A contrary conclusion would only encour-
age debtors to pay outstanding debts that are nondischarge-
able and later file for bankruptcy protection, thus avoiding the
nondischargeability of their debt under the veil of our bank-
ruptcy laws.
III.
[8] For the reasons stated, the BAP erred in affirming the
bankruptcy court’s dismissal of Busseto’s complaint. Because
of the dismissal under 12(b)(6), the bankruptcy court did not
reach the factual issue of whether Laizure’s debt is nondis-
chargeable. We REVERSE the decision of the BAP, and we
REMAND for further proceedings.