In re: Tammy Ogletree

FILED
NOV 4 2020
NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. NC-20-1087-FBG
TAMMY OGLETREE,
Debtor. Bk. No. 19-50392-SLJ
SARAH DAVIS,
Appellant,
v. MEMORANDUM*
TAMMY OGLETREE,
Appellee.
Appeal from the United States Bankruptcy Court
for the Northern District of California
Stephen L. Johnson, Bankruptcy Judge, Presiding
Before: FARIS, BRAND, and GAN, Bankruptcy Judges.
INTRODUCTION
Creditor Sarah Davis appeals from the bankruptcy court’s order
overruling her objection to debtor Tammy Ogletree’s chapter 131 plan. In
particular, Ms. Davis objected on the ground that Ms. Ogletree’s proposed
treatment of two properties located in New York State violated the best
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1532.
interest of creditors test under § 1325(a)(4). She argued that, if the
properties were liquidated, there would be sufficient funds to pay all of
Ms. Ogletree’s unsecured creditors. The bankruptcy court overruled the
objection, and Ms. Davis appealed.
We agree with the bankruptcy court that the chapter 13 plan did not
violate the best interest of creditors test. We therefore AFFIRM.
FACTUAL BACKGROUND2
A. Prepetition events
Ms. Ogletree, Ms. Davis, and Chadwick Greer were members of Eat
Earth LLC, which operated a restaurant in Santa Cruz, California. In 2017,
due to a business dispute, Ms. Ogletree and Mr. Greer allegedly ousted
Ms. Davis from the business. Ms. Davis sued Ms. Ogletree and Mr. Greer in
state court.
Ms. Ogletree, her mother (Carole Taub), and Mr. Greer owned as
joint tenants a single-family residence at Ene Road in Plattekill, New York
(the “Ene Road Property”) that they purchased in 2004.
Ms. Ogletree and Mr. Greer were members of 46 Main St. LLC (“the
LLC”). The LLC owned commercial real property located at 46 Main Street
in New Paltz, New York (the “Main Street Property”).
2
We exercise our discretion to review the bankruptcy court’s docket, as
appropriate. See Woods & Erickson, LLP v. Leonard (In re AVI, Inc.), 389 B.R. 721, 725 n.2
(9th Cir. BAP 2008).
2
B. Ms. Ogletree’s chapter 13 petition and proposed plans
On February 27, 2019, Ms. Ogletree filed a chapter 13 petition.3 In her
Schedule A/B, she valued the Ene Road Property at $289,068 and stated
that she held a thirty-three percent interest worth $95,392.44.
She also scheduled her fifty percent interest in the LLC. She stated
that the Main Street Property owned by the LLC was valued at $430,000
and encumbered by a two mortgages totaling $260,000. She valued her
interest in the LLC at $85,000.
Ms. Ogletree did not schedule any secured creditors. She listed
nonpriority unsecured creditors with claims totaling $111,696, including
Ms. Davis’ $40,000 disputed claim.
Her proposed chapter 13 plan provided that she would pay
unsecured creditors in full. She proposed paying $100 per month for sixty
months and liquidating the Main Street Property to realize $135,000.
Ms. Ogletree amended her proposed plan and schedules a number of
times, each time decreasing the amount of distributions to nonpriority
unsecured creditors. By her fifth amended plan, she proposed paying
unsecured creditors just five percent of their allowed claims, or only
$9,011.67. She no longer proposed selling the Main Street Property. She also
valued the Ene Road Property at $0, claiming that she had no equitable
3
Around the same time, Mr. Greer filed his own chapter 13 petition. The court
confirmed his chapter 13 plan, and the case is pending.
3
interest in the property. She proposed surrendering the Ene Road Property
to Heritage Bank of Commerce, which held a $187,000 claim.
Chapter 13 trustee Devin Dernham-Burke objected to various
iterations of the amended plan. She argued that Ms. Ogletree’s proposed
payments were insufficient to pay all secured, priority, administrative, and
general unsecured claims. She also argued that the plan violated the best
interest of creditors test under § 1325(a)(4).
C. Ms. Davis’ objection to confirmation
Ms. Davis objected to confirmation of the fifth amended plan (the
“Objection”). She argued that Ms. Ogletree’s proposed distributions to
unsecured creditors were insufficient and that the plan failed to account for
the equity in the Ene Road Property and the Main Street Property.
As for the Ene Road Property, Ms. Ogletree proposed to surrender
the property to Heritage Bank, but Ms. Davis asserted that Ms. Ogletree
actually planned to transfer her interest in the Ene Road Property to her
mother. She asserted that there was no evidence that Ms. Taub was the sole
owner of the Ene Road Property. Ms. Davis estimated that the sale of the
Ene Road Property would result in $29,660 for unsecured creditors.
As for the Main Street Property, Ms. Davis argued that Ms. Ogletree
owned a fifty percent interest in the LLC, which owned the Main Street
Property. Ms. Davis estimated that the sale of the Main Street Property
would yield $42,050 for unsecured creditors.
4
In response to the Objection, Ms. Ogletree filed a “Pre-Hearing
Statement.” She argued that Ms. Davis’ calculations regarding the Main
Street Property were wrong and unsupported by evidence.
Regarding the Ene Road Property, Ms. Ogletree attached a
declaration in which she stated that her mother provided the entire $75,000
down payment and that neither she nor Mr. Greer contributed to the down
payment and closing costs. She testified that, in 2016, her mother assumed
sole responsibility of managing the property as a rental, allegedly paid off
certain liens, and spent $15,000 renovating the Ene Road Property. She
further testified that she had nothing to do with the property since 2014
and believed that her equitable interest in the property was worth $0.
The bankruptcy court held a hearing on the Objection. As for the
Main Street Property, it held that, under both California and New York
law, the bankruptcy estate did not include either the property or the rental
income, because the property belonged to the LLC, not Ms. Ogletree
personally. It noted that Ms. Ogletree’s interest was determined by the
LLC’s operating agreement, which Ms. Davis did not provide.
The court also rejected Ms. Davis’ arguments regarding the Ene Road
Property. It held that the plan provided that Ms. Ogletree would surrender
the property, which would terminate her interest in the property.
The court stated that Ms. Davis did not provide any evidence that
Ms. Ogletree actually intended to transfer the Ene Road Property to her
5
mother; rather, the plan proposed that she would surrender the property to
Heritage Bank. The court said that Ms. Davis did not establish that the Ene
Road Property had any equity (or establish its value beyond a Zillow
valuation) and that Ms. Ogletree stated that there would be a deficiency
balance of $187,000 after surrendering the property.
The court stated that, under New York law, even though
Ms. Ogletree owned a one-third interest in the Ene Road Property, the
respective contributions of co-tenants are considered when determining the
distribution of proceeds from a sale. It referenced Ms. Ogletree’s
declaration and found that Ms. Taube was entitled to at least $140,000 in
reimbursements. It thus overruled the Objection.
The bankruptcy court entered an order overruling the Objection.
Ms. Davis timely appealed.
Subsequently, the chapter 13 trustee withdrew her objection to
confirmation, and the court confirmed the plan.
JURISDICTION
The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334
and 157(b)(2)(L). We have jurisdiction under 28 U.S.C. § 158.
ISSUE
Whether the bankruptcy court erred in overruling the Objection.
STANDARDS OF REVIEW
We review for abuse of discretion a bankruptcy court’s decisions
6
regarding confirmation of a chapter 13 plan. See de la Salle v. U.S. Bank, N.A.
(In re de la Salle), 461 B.R. 593, 601 (9th Cir. BAP 2011). To determine
whether the bankruptcy court has abused its discretion, we conduct a
two-step inquiry: (1) we review de novo whether the bankruptcy court
“identified the correct legal rule to apply to the relief requested” and (2) if
it did, we consider whether the bankruptcy court’s application of the legal
standard was illogical, implausible, or without support in inferences that
may be drawn from the facts in the record. United States v. Hinkson, 585
F.3d 1247, 1262-63 & n.21 (9th Cir. 2009) (en banc).
“The liquidation value of a debtor’s assets for purposes of the best
interests of creditors test presents a question of fact. As such, we review the
bankruptcy court’s value findings under the clearly erroneous standard.”
Messer v. Maney (In re Messer), No. BAP AZ-13-1215-PaKuD, 2014 WL
643712, at *2 (9th Cir. BAP Feb. 19, 2014) (citing United States v. Arnold &
Baker Farms (In re Arnold & Baker Farms), 177 B.R. 648, 653 (9th Cir. BAP
1994); Varela v. Dynamic Brokers, Inc. (In re Dynamic Brokers, Inc.), 293 B.R.
489, 493 (9th Cir. BAP 2003)). Factual findings are clearly erroneous if they
are illogical, implausible, or without support in the record. Retz v. Samson
(In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010). If two views of the evidence
are possible, the court’s choice between them cannot be clearly erroneous.
Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
7
DISCUSSION
A. Under § 1325(a)(4), unsecured creditors must receive at least as
much as they would in a hypothetical chapter 7 case.
Ms. Davis argues that the bankruptcy court erred in overruling her
Objection because Ms. Ogletree’s general unsecured creditors would
receive more in a hypothetical chapter 7 case.
To confirm a chapter 13 plan, the bankruptcy court must decide that
the proposed plan satisfies certain criteria. One criterion is § 1325(a)(4),
which is sometimes called the “liquidation analysis” or “best interest of
creditors test.” Section 1325(a)(4) provides that the court shall confirm a
plan if:
(4) the value, as of the effective date of the plan, of property to
be distributed under the plan on account of each allowed
unsecured claim is not less than the amount that would be paid
on such claim if the estate of the debtor were liquidated under
chapter 7 of this title on such date[.]
§ 1325(a)(4). In other words, the value of the distributions to each creditor,
under the plan, must be at least as much as the amount that each creditor
would receive if the estate were liquidated and the proceeds distributed in
a chapter 7 case. We have stated that:
Analysis under § 1325(a)(4) requires a court to make two
determinations: (1) the present value of the property to be
distributed to unsecured creditors (the value of the stream of
plan payments) as of the “effective date of the plan;” and (2) the
amount available to unsecured creditors if a chapter 7
8
liquidation were held on the “effective date of the plan.”
Bradley R. Kirk & Assocs., Inc. v. Spellman (In re Spellman), BAP No. CC-15-
1026-KiKuF, 2016 WL 1165827, at *8 (9th Cir. BAP Mar. 22, 2016), aff’d, 737
F. App’x 807 (9th Cir. 2018).
In order for a chapter 13 plan to be confirmed, “each of the
requirements of section 1325 must be present and the debtor has the
burden of proving that each element has been met.” Barnes v. Barnes (In re
Barnes), 32 F.3d 405, 407 (9th Cir. 1994); see In re Goodrich, Case No.
13-11223, 2014 WL 627429, at *1 (Bankr. N.D. Cal. Feb. 18, 2014) (“Pursuant
to § 1325(a)(4) of the Bankruptcy Code, the debtor has the burden of
showing that a creditor would not receive more in Chapter 7 than the
debtor’s plan provides.”).
B. The bankruptcy court did not err in its consideration of the Main
Street Property.
Ms. Davis argues that the bankruptcy court erred in declining to
include the Main Street Property in its liquidation analysis. She argues that
Ms. Ogletree’s interest in that property is part of her bankruptcy estate and
could be liquidated to pay unsecured creditors. We disagree.
Section 541(a)(1) provides that property of a bankruptcy estate is
comprised of “all legal or equitable interests of the debtor in property as of
the commencement of the case.” “Although the question whether an
interest claimed by the debtor is ‘property of the estate’ is a federal
9
question to be decided by federal law, bankruptcy courts must look to state
law to determine whether and to what extent the debtor has any legal or
equitable interests in property as of the commencement of the case.”
Fursman v. Ulrich (In re First Prot., Inc.), 440 B.R. 821, 828 (9th Cir. BAP 2010)
(quoting McCarthy, Johnson & Miller v. N. Bay Plumbing, Inc. (In re Pettit),
217 F.3d 1072, 1078 (9th Cir. 2000)).
Ms. Davis concedes that the LLC, not Ms. Ogletree, owns the Main
Street Property. She also does not challenge the bankruptcy court’s holding
that, under both California and New York law, the members’ rights are
determined by the LLC’s operating agreement. But Ms. Davis failed to
provide a copy of that agreement. Without the operating agreement, she
could not prove her contention about the value of Ms. Ogletree’s interest in
the LLC. Ms. Davis’ failure to offer this crucial piece of evidence justified
the rejection of her argument.
Ms. Davis attempts to circumvent her failure of proof by arguing
that, because both Ms. Ogletree and Mr. Greer are pursuing their respective
chapter 13 bankruptcy cases, “a Chapter 7 Trustee could cause the LLC to
sell the real property and distribute the net proceeds to [the] bankruptcy
estate.” But this does not solve her evidentiary problem. It is true that, as a
general rule, “all of [a debtor’s] contractual rights and interest in [an LLC]
[becomes] property of their estate under § 541(a)(1) by operation of law
when they filed their petition.” Id. at 830. “[W]here a debtor has a
10
membership interest in a single-member LLC . . . , the Chapter 7 trustee
succeeds to all of the debtor’s rights, including the right to control that
entity, and a trustee need not take any further action to comply with state
law before exercising such control.” Schwartzer v. Cleveland (In re Cleveland),
519 B.R. 304, 306 (D. Nev. 2014). But the rights to which the trustee
succeeds are defined and limited by the LLC’s operating agreement. A
chapter 7 trustee would step into Ms. Ogletree’s shoes and assume only the
rights she had under the operating agreement. Because Ms. Davis failed to
present the court with the LLC’s operating agreement, there was no factual
basis for her argument that a chapter 7 trustee in her case (or in Mr. Greer’s
case, or both of them acting in concert) could have liquidated the Main
Street Property and split the net proceeds equally.
Ms. Davis cites only a single out-of-circuit case, In re Albright, 291 B.R.
538 (D. Colo. 2003), in support of her position that a chapter 7 trustee could
assume control of both Ms. Ogletree’s and Mr. Greer’s interests in the LLC.
However, Albright, which involves a single-member LLC, does not stand
for the proposition that the § 1325(a)(4) liquidation analysis allows a
hypothetical chapter 7 trustee to force a liquidation of the LLC’s assets
notwithstanding the terms of the LLC’s operating agreement. Nor does it
hold that a hypothetical chapter 7 trustee in one case can reach out and
control the estate of a second debtor in a separate chapter 13 case. In fact,
Albright specifically notes that, under Colorado law, other members of an
11
LLC cannot be forced to permit a bankruptcy trustee to step into the shoes
of a debtor to manage the LLC. Id. at 540.
Even assuming that the hypothetical chapter 7 trustee could force a
liquidation of the LLC’s property and equal distribution of the proceeds,
Ms. Davis offered no comprehensible account of the funds that the general
unsecured creditors would receive. Her arithmetic does not support her
conclusion.
Therefore, the bankruptcy court did not err in overruling the
Objection based on the Main Street Property and the liquidation analysis.
C. The bankruptcy court did not err in its consideration of the Ene
Road Property.
Ms. Davis also argues that the court erred in excluding the Ene Road
Property from its liquidation analysis. We do not agree with all of the
bankruptcy court’s reasoning on this point, but we agree with its result.
Ms. Davis contends that there was significant equity in the Ene Road
Property to pay unsecured creditors. She claims that the sale of the
property would result in net proceeds to the estate totaling $22,986.4
The bankruptcy court stated that, because Ms. Ogletree proposed to
surrender the Ene Road Property under her plan, the proceeds of that
property were not property of the estate and should not be included in the
liquidation analysis. This was incorrect. The liquidation analysis compares
4
Ms. Davis’ calculations are again confusing and do not support her conclusion.
12
the results under a proposed plan with the results of a chapter 7
liquidation. In a chapter 7 case, the Ene Road Property would not be
“surrendered,” because that concept does not exist in chapter 7. It is
inappropriate to project the results of the hypothetical chapter 7 liquidation
using one term of a not-yet-confirmed chapter 13 plan.
But the bankruptcy court reached the correct result regardless. It
properly rejected Ms. Davis’ arguments about the liquidation analysis.
The starting point of the liquidation analysis is the probable selling
price. In the bankruptcy court, Ms. Davis mentioned the 2004 purchase
price of $299,000, a Zillow.com estimate of $262,822, and the tax assessed
value of $250,000. She argued, rather arbitrarily, that the court should
accept the highest of these numbers. However, she offered no evidence to
support any of these figures. If she had attempted to do so, she would have
had to overcome objections based on hearsay and unreliability.5 She never
explains why the court should have selected the highest (and most
5
The Zillow “Zestimate” is particularly questionable. As Zillow itself says:
The Zestimate is not an appraisal and can’t be used in place of an
appraisal. It is a computer-generated estimate of the value of a home
today, given the available data.
The Zestimate should not be used as the basis of any specific financial
transaction because data sources may be incomplete or incorrect. The
Zestimate is a starting point and does not consider all the market
intricacies that can determine the actual price a home will sell for.
What is a Zestimate? Zillow’s Zestimate Accuracy, https://www.zillow.com/zestimate/
(last visited Oct. 7, 2020).
13
outdated) number. The court did not clearly err in rejecting her valuation.
Ms. Davis also argues that there is no evidence that Ms. Taub made
the payments and investments in the Ene Road Property as described in
Ms. Ogletree’s declaration. This is false; Ms. Ogletree’s declaration was
evidence on which the bankruptcy court properly relied.6 Ms. Davis did not
provide any evidence to contradict Ms. Ogletree’s statements made under
penalty of perjury, so it was not clear error for the court to accept
Ms. Ogletree’s valuation, including her sworn statements about Ms. Taub’s
contributions to the Ene Road Property.
Finally, she points out that Ms. Ogletree was a joint tenant with
Ms. Taub and Mr. Greer. She contends that the proceeds of the property
must be divided equally, without regard for the joint tenants’ disparate
contributions, unless the joint tenancy is severed or a partition action is
filed. She is mistaken.
In Ms. Ogletree’s hypothetical chapter 7 case, the trustee would
succeed to Ms. Ogletree’s joint tenancy interest in the Ene Road Property.
Because fractional interests in property are hard to sell and usually sell at a
significant discount, the hypothetical trustee would probably use § 363(h)
to sell Ms. Ogletree’s interest together with Mr. Greer’s and Ms. Taub’s
6
Ms. Davis might mean that Ms. Ogletree’s declaration was self-serving and
uncorroborated, but self-serving and uncorroborated evidence is evidence nonetheless,
and a court can rely on such evidence, particularly where there is no contrary evidence.
14
interests – in other words, to sell a 100% interest in the property.7 The
trustee would then distribute the net proceeds to the co-owners and the
estate “according to the interests of such spouse or co-owners, and of the
estate.” § 363(j).
State law governs the various property interests implicated by
§ 363(h):
As the Supreme Court has stated, “[p]roperty interests are
created and defined by state law. Unless some federal interest
requires a different result, there is no reason why such interests
should be analyzed differently simply because an interested
party is involved in a bankruptcy proceeding.” Butner v. United
States, 440 U.S. 48, 55, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979). In
7
Section 363(h) provides:
(h) Notwithstanding subsection (f) of this section, the trustee may sell both
the estate’s interest, under subsection (b) or (c) of this section, and the
interest of any co-owner in property in which the debtor had, at the time
of the commencement of the case, an undivided interest as a tenant in
common, joint tenant, or tenant by the entirety, only if –
(1) partition in kind of such property among the estate and such
co-owners is impracticable;
(2) sale of the estate's undivided interest in such property would
realize significantly less for the estate than sale of such property
free of the interests of such co-owners;
(3) the benefit to the estate of a sale of such property free of the
interests of co-owners outweighs the detriment, if any, to such
co-owners; and
(4) such property is not used in the production, transmission, or
distribution, for sale, of electric energy or of natural or synthetic gas
for heat, light, or power.
15
fact, § 363(h) does not “purport to alter or redefine the property
rights upon which it was designed to operate.” In re Persky, 134
B.R. 81, 85 (Bankr. E.D.N.Y. 1991). Thus, under § 363(h), “[s]tate
and not federal law determines the nature and extent of a
debtor’s interest in property as of the date of the
commencement of his bankruptcy case under all of the
authorities.” Lake Erie Leasing, Inc. v. Bundy (Matter of Bundy), 53
B.R. 582, 584 (Bankr. W.D. Pa. 1985); see also In re Persky, 134
B.R. at 85.
UTSA Apartments, L.L.C. v. UTSA Apartments 8, L.L.C. (In re UTSA
Apartments 8, L.L.C.), 886 F.3d 473, 487 (5th Cir. 2018); see generally Stine v.
Diamond (In re Flynn), 297 B.R. 599, 605 (9th Cir. BAP 2003), rev’d and
remanded on other grounds, 418 F.3d 1005 (9th Cir. 2005) (“[T]he estate and
co-owner each own that to which state property law entitles them. Thus,
we construe § 363 in light of the property rights Stine and the trustee have
under California law.”). Similarly, state law determines the “interests” of
the co-owners and the estate under § 363(j). See In re UTSA Apartments 8,
L.L.C., 886 F.3d at 487 (“[I]t naturally follows that state law should similarly
determine the interest shares for purposes of a § 363(j) distribution
following a sale pursuant to § 363(h).”).
This is consistent with the general proposition that, “[u]nless the
Bankruptcy Code or bankruptcy case law create other legal rights, the
rights of parties to an interest in real property are established by applicable
state law.” In re Rerisi, 172 B.R. 525, 527 (Bankr. E.D.N.Y. 1994); see In re
Liggett, 118 B.R. 213, 216-17 (Bankr. S.D.N.Y. 1990) (applying New York
16
state law to determine debtor’s interest in real property).
It is also consistent with the fact that § 363(h) is a statutory partition
provision. When determining the parties’ respective property interests in
partition actions, New York courts rely on equitable principles of division.
See, e.g., Worthing v. Cossar, 462 N.Y.S.2d 920, 922 (1983) (“A partition
action, although statutory, is equitable in nature and an accounting of the
income and expenses of the property sought to be partitioned is a
necessary incident thereof.”). Under New York law,
in determining the equitable division of property, the Court
may consider the nature of the parties’ relationship, disparities
in down payments and mortgage payments, whether any such
disparate contributions to the property were intended to be a
gift, the reasonable value of improvements and repairs to the
property and the reasonable value of rental payments with
regard to an ousted co-tenant. In other words, while the Court
should consider the parties’ separate contributions to
acquisition and improvement of the property, the Court also
must consider the relationship between the parties and whether
the co-tenant who paid for such expenditures intended his
disparate contributions to be a gift.
Melnick v. Press, 809 F. Supp. 2d 43, 59 (E.D.N.Y. 2011) (citations and
quotation marks omitted).
In the present case, the bankruptcy court properly accepted
Ms. Ogletree’s valuation of the property and her testimony about her
mother’s disproportionate contributions. It correctly held that, under New
York law, the distribution of proceeds of any sale of the Ene Road Property
17
would have to take into consideration Ms. Taub’s contributions including
the down payment, closing costs, and renovation expenses. It thus did not
err in rejecting Ms. Davis’ liquidation analysis.
CONCLUSION
The bankruptcy court did not err in overruling the Objection. We
AFFIRM.
18