Gill v. Stern

OPINION

RAWLINSON, Circuit Judge.

David A. Gill, Bankruptcy Trustee (“Trustee”), appeals the district court’s de-cisión affirming the bankruptcy court’s order, which granted summary judgment in favor of the debtor Steven Stern (“Stern”). Stern cross-appeals the district court’s determination that Stern’s pension plan funds are not excluded from the bankruptcy estate.

Stern filed for bankruptcy after the entry of a sizeable judgment against him in an arbitration proceeding. We must determine whether the transfer of proceeds from an Individual Retirement Account (“IRA”) into a Profit Sharing Pension Plan was a fraudulent conveyance, subject to avoidance by the Trustee.¹

Constrained by our precedent, we AFFIRM the district court’s holding that, although the pension plan was properly included within the bankruptcy estate, the pension plan assets were exempt from distribution to Stern’s creditors.

I.

Background ■

Stern’s retirement planning commenced with the creation of a tax-qualified profit-sharing plan in 1974 (“1974 Plan”).²

In 1978, Stern terminated the 1974 Plan and created a qualified, defined benefit pension plan (“1978 Plan”). In 1989, Stern terminated the 1978 Plan and transferred the plan assets into an IRA account (“IRA”).

Stern became embroiled in a business dispute with Dove Audio, Inc. in 1991. The dispute culminated in an arbitration award of over $4 .5 million dollars against Stern. At about the same time, Stern hired Margaret Mayersohn (“Mayersohn”), with whom he became romantically involved, and later married.

In April 1992, Stern created a Profit Sharing Plan (“1992 Pension Plan”) with Mayersohn and Stern as beneficiaries. On October 22, 1992, the Los Angeles Superi- or Court issued a writ of attachment to secure the arbitration award. .The next day, Stern executed the Plan Documents for the 1992 Pension Plan and, a few days later, transferred the proceeds of his IRA into the 1992 Pension Plan. Dove filed a fraudulent conveyance action in state court, contending that Stern’s transfer of funds from his IRA into the 1992 Pension Plan was a fraudulent transfer designed to shield his assets from creditors. Stern, in turn, initiated a voluntary Chapter 7 bankruptcy proceeding. The creditors removed the fraudulent conveyance action to the bankruptcy court as an adversary proceeding.

Stern filed a Motion for Summary Judgment in the core bankruptcy proceeding, seeking to exclude the assets of the 1992 Pension Plan from the bankruptcy estate. Stern also sought summary judgment on the fraudulent transfer claim in the adversary proceeding.

The bankruptcy court ruled that the 1992 Pension Plan was excluded from the bankruptcy estate because it was a qualified plan under the provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”). The bankruptcy court also concluded that, although the 1992 Pension Plan assets were not excluded from the estate under California law, the 1992 Pension Plan’s assets were exempted from creditors’ claims under California law. Finally, the bankruptcy court held that Stern’s transfer of assets from the IRA to thé exempt 1992 Pension Plan was not a fraudulent transfer. The creditors appealed the bankruptcy court’s rulings to the district court.

The district court rendered the following rulings on appeal:

1. The 1992 Pension Plan was not ERISA-qualified;

2. The 1992 Pension Plan was not ex-cludable under state law;

3. The 1992 Pension Plan was exempt under California law; and

4. The transfer of assets from Stern’s IRA to the 1992 Pension Plan was not a fraudulent conveyance.

Stern appeals the district court’s ruling that the 1992 Pension Plan was not ERISA-qualified. The Trustee appeals the district court’s rulings that the 1992 Pension Plan was exempt under California law, and that the transfer of assets from the IRA to the 1992 Pension Plan was not a fraudulent transfer. ■

II.

Standard of Review

We review the bankruptcy court’s grant of summary judgment de novo. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir.2001). We must determine whether, viewing the evidence in the light most favorable to the non-moving party, genuine issues of material fact remain for trial. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). We also must determine whether the bankruptcy court correctly applied the relevant substantive law. Id.

“We review the district court’s decision on appeal from the bankruptcy court de novo, without giving deference to the district court’s conclusions.” In re Harmon, 250 F.3d 1240, 1245 (9th Cir.2001) (citation omitted). Because the facts in this case are virtually undisputed, we focus on the court’s application of law to the facts.³

III.

Discussion

A. ERISA-Qualified Status of the 1992 Pension Plan

If the 1992 Pension Plan was ERISA-qualified, the assets in the plan were thereby excluded from the bankruptcy estate. See Patterson v. Shumate, 504 U.S. 753, 757-58, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992); In re Conner, 73 F.3d 258, 259-60 (9th Cir.1996). The status of the pension plan is determined as of the date of the bankruptcy filing. Lowenschuss v. Selnick (In re Lowenschuss), 171 F.3d 673, 680 (9th Cir.1999). It is undisputed that, as of the date of his bankruptcy filing, Stern was married to Mayersohn, the only other beneficiary of the 1992 Pension Plan. Prior to the marriage, Mayersohn was the sole employee of the 1992 Pension Plan.⁴ Absent at least one employee beneficiary, a pension plan is not ERISA-qualified. See Peterson, 48 F.3d at 407-08.

Although Stern acknowledges the applicability generally of Lowenschuss, he challenges its applicability specifically to the facts of this case. Relying upon Peterson, Stern contends that his marriage to May-ersohn did not alter the ERISA-qualified status of the 1992 Pension Plan.

We agree with the district court that the fact that Peterson concerned an employee welfare benefit plan and Lowenschuss addressed a pension plan is outcome determinative.

29 U.S.C. § 1002(1) defines an ERISA-qualified welfare benefit plan as one “established or maintained ... for the purpose of providing [benefits] for its participants or their beneficiaries[.]” 29 U.S.C. § 1002(1) (West 1999). In contrast, a pension plan is ERISA-qualified only “to the extent that by its express terms or as a result of surrounding circumstances [the pension plan] provides retirement income to employees ...” 29 U.S.C. § 1002(2)(A)(i) (West 1999).

Taking into account the welfare benefit plan definition’s focus on the past and the pension plan definition’s emphasis on the present, Peterson and Lowenschuss are easily reconciled. Under the rationale of Peterson, ERISA qualification for a welfare benefit plan is determined after considering the purpose of the plan when it was established or as it is maintained. In Lowenschuss, however, we are instructed to assess ERISA qualification for a pension plan by gauging whether there is at least one extant employee beneficiary. Under Lowenschuss, the assessment is made as of the bankruptcy filing date.

There is no dispute that as of the bankruptcy filing date, the 1992 Pension Plan covered an owner and the spouse of an owner, neither of which met the definition of employee. See Peterson, 48 F.3d at 408; see also 29 C.F.R. § 2510.3-3(c)(1). The district court properly applied Lowenschuss and determined that the 1992 Pension Plan was not ERISA-qualified at the time of the bankruptcy filing. As a result, the assets of the 1992 Pension Plan were not exempt from the bankruptcy estate by virtue of ERISA qualification.

B. Exemption of the 1992 Pension Plan Under California Law⁵

Cal. Civ.Code § 704.115(b) provides: “All amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability payment, or death benefit from a private retirement plan are exempt.”

The Trustee does not take issue per se with the applicability of Cal. Civ.Code § 704.115(b). Rather, the Trustee challenges the exemption on the basis that Stern’s transfer of assets from the IRA into the 1992 Pension Plan was a fraudulent conveyance. That brings us to the final issue before us.

C. Transfer of Assets Into the 1992 Pension Plan

The Trustee vigorously advocates that Stern’s transfer of assets from his IRA into the 1992 Pension Plan was fraudulent, and therefore, the assets are not exempt from the reach of creditors.

We are controlled by our prior opinion in Wudrick v. Clements, 451 F.2d 988 (9th Cir.1971). In that case, we ruled “that the purposeful conversion of nonexempt assets to exempt assets on the eve of bankruptcy is not fraudulent per se.” Id. at 989 (citation omitted).

The facts of Wudrick are not unlike orn-ease.

When bankruptcy appeared inevitable, Mr. and Mrs. Roon consulted experienced bankruptcy counsel. One of the things they did on his advice to enhance their exemptions was to refinance their 1966 Chevrolet. The bank loaned them $2,325 on the car. From this amount they paid off the previous car loan and their attorney’s fees, and deposited $800 in the Union Federal Savings & Loan Association. They then filed petitions in bankruptcy. They claimed that the $800 account was exempt from execution under California [law] and was therefore exempt under section 6 of the Bankruptcy Act, 11 U.S.C. § 24, though the automobile would not have been.

Id.

In reversing the district court’s determination that Wudrick engaged in a fraudulent conveyance, we clarified that “[t]he finding of fraud was based solely on the fact that nonexempt assets were deliberately converted to exempt assets just prior to filing the bankruptcy petition.” Id. at 990. We explained that this “evidence was insufficient as a matter of law to establish fraud.” Id. Our analysis was impliedly affected by the clarification that a different conclusion might be reached “if on the eve of bankruptcy a debt were created with no intention of repaying the creditor ....” Id.

Here, the principal evidentiary inference relied upon by the Trustee is that non-exempt assets were converted to exempt assets immediately prior to bankruptcy. But, as Wudrick demonstrates, this inference is insufficient as a matter of law to establish a fraudulent conveyance. Moreover, when analyzed under the appropriate evidentiary standard of clear and convincing evidence, see Anderson v. Liberty Lobby, 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden”), the remaining “badges of fraud” relied upon by the Trustee are not supported by sufficient evidence to create a genuine issue of material fact that Stern’s transfer of assets was a fraudulent conveyance.

The dissent seeks to distinguish Wud-rick by citing to Love v. Menick, 341 F.2d 680 (9th Cir.1965). However, Menick actually supports a finding of exemption. In Menick, we recognized that “the exemption statutes of California are applied with liberality.” Id. at 682 (citations omitted). We also noted that a finding of fraud must be established by “clear and convincing” evidence. Id. (citation omitted). Finally, we clarified that the exemption determination is to be determined “upon the basis of conditions existing at the time of the filing of the bankruptcy petition.” Id. (citations omitted). As in Menick, when Stern’s bankruptcy petition was filed, the assets in question “rested in [the 1992 Pension Plan] which ... enjoyed an exempt status.” Id.

The dissent also cites Acequia Inc. v. Clinton, (In re Acequia, Inc.), 34 F.3d 800 (9th Cir.1994) in support of its position. However, that case is inapposite because the property transferred did not enjoy an exempt status when the bankruptcy petition was filed. The rationale of Wudrick is inapplicable to a situation such as that presented in Acequia, but completely pertinent to the case at hand, where assets are converted to an exempt status pre-bankruptcy. At bottom, 'the “badges of fraud” articulated in the dissent merely rephrase the argument that Stern transferred funds from his IRA account into the 1992 Pension Plan Account on the eve of bankruptcy. In such a circumstance, we are persuaded that Wudrick controls.

We recognize that the “badges of fraud” identified by Judge Alarcon in his thoughtful dissent offer some support for the conclusion that there is evidence in the record that could be construed as creating a genuine issue of material fact. However, under Anderson v. Liberty Lobby, Inc., 477 U.S. at 254-56, 106 S.Ct. 2505 and its progeny, this elevated standard of clear and convincing proof must govern our evaluation of the evidence. Although a colorable argument could perhaps be made that there is some evidence of fraudulent conveyance, we simply believe, after reviewing the record de novo, that the existing evidence fails to create a genuine issue of material fact when evaluated under the elevated evidentiary standard governing fraudulent conveyance.

Accordingly, we AFFIRM the district court’s rulings that the 1992 Pension Plan was not ERISA-qualified; that the 1992 Pension Plan was exempt under California law; and that the transfer of assets from Stern’s IRA to the 1992 Pension Plan was not a fraudulent conveyance.

AFFIRMED.

Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge ALARCÓN.

1 . The remaining creditors did not actively participate in the appeal.

2 . The retirement plans were established under the auspices of Steven H. Stern, Inc., and benefitted Stern and his then-wife Sharma, who were both employees of Stern,.Inc.

3 . The Trustee objected to consideration of certain affidavits submitted by Stern in support of his summary judgment motion. However, the affidavits were in compliance with the requirements of Rule 56(e) of the Federal Rules of Civil Procedure. Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir.2001) (stating that affidavits must be based upon personal knowledge and contain admissible evidence). Contrary to the Trustee’s assertion, the affidavits were not so inconsistent with deposition testimony that the bankruptcy court abused its discretion in considering the affidavits.

4 . Stern, as sole owner of the 1992 Pension Plan's sponsor, did not fit within the definition of employee. See Peterson v. American Life & Health Ins., 48 F.3d 404, 408 (9th Cir.1995).

5 . 11 U.S.C. § 522(b) permits the debtor to claim exemptions under state law.