Fresno Lawyer – Randolf Krbechek

In a recent and closely reasoned opinion, the 5th District Court of Appeal from Fresno held that a claim of fraud could go to trial, even if the alleged fraud was controverted by the language of the written agreement between the parties.  There are points in the opinion for discussion, but let’s start with the issue presented.

Stated the court, “Plaintiffs’ complaint alleged causes of action including fraud[.]  Plaintiffs alleged they signed a written agreement with defendant, but they were induced to do so by defendant’s oral misrepresentations of the terms contained in the written agreement, made at the time of execution of the agreement.”

The trial court granted summary judgment for the defendant “after ruling that plaintiffs’ evidence of misrepresentations was inadmissible pursuant to the parol evidence rule.”  The court of appeal reversed.

The underlying facts are as follows.  Defendant is a lender.  Plaintiff owed money on an outstanding loan.  “On March 26, 2007, plaintiffs and defendant entered into a written forbearance agreement . . . Plaintiffs failed to make the payments required by the March 26, 2007, agreement and defendant recorded a notice of default.”

Plaintiffs “alleged that, two weeks prior to their execution of the written forbearance agreement, defendant’s senior vice president, David Ylarregui, met with them and represented defendant would agree to forbear from collection for two years if plaintiffs would pledge two orchards as additional security.”

“On March 26, 2007, at the time of execution of the written agreement, Ylarregui told plaintiffs the agreement would be for two years and would include as security only the two orchards, and not plaintiffs’ residence or the truck yard.  Plaintiffs alleged they did not read the written agreement, but relied on Ylarregui’s representations of its terms in executing the written agreement.”

The court started its review by noting that, “An integrated contract is a complete and final embodiment of the terms of an agreement . . . Whether a writing is an integration is a question of law, which we review de novo.  We agree that the forbearance agreement is an integrated agreement, to which the parol evidence rule applies.”

This finding did not protect the lender.  The court said there are different kinds of fraud.  In the case of “promissory fraud, “ being “a false promise directly at variance with the terms of the written agreement,” parol (extrinsic) evidence is generally not admissible.

Thus, “Parol evidence of promissory fraud is only permissible in the case of a promise to do some additional act which was not covered by the terms of the contract.  [When] the alleged false promise related to the identical matter covered by the written agreement and directly contradicted the plain language of the guarantee, evidence of the oral statements was properly stricken as incompetent.”

However, court found a different specie of fraud, recognizing that “a distinction between promissory fraud and misrepresentations of fact over the content of an agreement at the time of execution is a valid one.”  Stated otherwise, “Where failure to read an instrument is induced by fraud of the other party, the fraud is a defense even in the absence of fiduciary or confidential relations.”

Accordingly, “parol evidence of a prior promise made without any intention of performing it that directly contradicts the provisions of the written contract must be distinguished from parol evidence of a contemporaneous factual misrepresentation of the terms contained in a written agreement submitted for signing.”  This becomes “fraud in the procurement,” as distinguished from “promissory fraud.”

Added the court, “Relief based on this type of fraud would not be available in every case.  It would be available only when one party made a false statement about the terms contained in the contract after the written contract was prepared, and the other party reasonably relied on that statement and was thereby induced to sign the written contract without discovering that the actual provisions were not as represented.”

To this end, the evidence does not contradict the terms of the written contract; it shows that “the written contract was not the actual, integrated agreement of the parties.”

The decision is carefully reasoned and based on long-established precedent.  Yet, this author finds one gap.  Fraud requires proof of reasonable reliance.  Case law holds that there is no fiduciary relationship between a borrower and a lender – they occupy an arm’s length business relationship.

The court passed by this issue glancingly, recognizing “the need to prove the element of reasonable reliance” and adding that, “In light of the general principle that a party who signs a contract cannot complain of unfamiliarity with the language of the instrument, the defrauded party must show a reasonable reliance on the misrepresentation that excuses the failure to familiarize himself or herself with the contents of the document.”

That is my question.  What established that the plaintiff reasonably relied on the defendant’s representation as to the contents of the contract? We have no discussion regarding the terms or format of the contract.  What was the critical point buried in small print deep in the contract?  Or was there some circumstance – the press of time, for example – that allowed the plaintiffs to rely on an expression regarding the terms of the contract such that plaintiffs were excused from reading the document before they signed it?

We don’t know, and thereby hangs the tail.

Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (Jan. 3, 2011) 2011 DJDAR 169

In Ahcom, Ltd. v. Smeding, 2010 DJDAR 16125 (9th Cir. Oct. 21, 2010), the Ninth Circuit Court of Appeal considered when alter ego liability could be imposed on corporate shareholders.  Applying California law in a bankruptcy context, the court provided contours to alter ego liability.

The issue in Ahcom was whether “a creditor of a corporation in bankruptcy has standing to assert a claim against the corporation’s sole shareholders on an alter ego theory or whether that claim belongs solely to the corporation’s bankruptcy trustee.”  The district court held that the claim belonged to the trustee, who must likely was unwilling to pursue litigation against the shareholders.

On appeal, the Ninth Circuit held that the creditor could pursue the claim, because it was an injury specific to the creditor, not a generalized injury that affected all shareholders.  Thus, “Ahcom’s first amended complaint asserted two substantive claims, one related to the foreign arbitration award and one related to a breach of contract.”

[According to its website, Ahcom is “one of the largest traders and distributors of tree nuts, including almonds and cashews in the world.]

“Ahcom also alleged an alter ego claim whereby they sought to pierce the corporate veil to hold the Smedings responsible for [the corporation’s] actions.  Crucially, both of Ahcom’s substantive claims to recover the arbitration award and the contract-related damages, by their terms, depend on the success of Ahcom’s alter ego allegations. Without those allegations, Ahcom has no claim against the Smedings.”

Explained the court, “The issue is not so much whether, for all purposes, the corporation is the ‘alter ego’ of its stockholders or officers, or whether the very purpose of the organization of the corporation was to defraud the individual who is now in court complaining, as it is an issue of whether in the particular case presented and for the purposes of such case justice and equity can best be accomplished and fraud and unfairness defeated by a disregard of the distinct entity of the corporate form.”

Now comes a profound statement, based on prior published California case law.  “In fact, there is no such thing as a substantive alter ego claim at all:  A claim against a defendant, based on the alter ego theory, is not itself a claim for substantive relief, e.g., breach of contract or to set aside a fraudulent conveyance, but rather, procedural.”

This author would posit that many lawyers would view an alter ego claim as a substantive claim against the shareholders, not a mere matter of procedure.

The court continued.  “This reading is unavoidable when we consider that no California court has recognized a freestanding general alter ego claim that would require a shareholder to be liable for all of a company’s debts and, in fact, the California Supreme Court stated that such a cause of action does not exist.”

As a result, the creditor could pursue its claim against the shareholders.  “We conclude that California law does not recognize an alter ego claim or cause of action that will allow a corporation and its shareholders to be treated as alter egos for purposes of all the corporation’s debts.  Just because [the corporation’s bankruptcy] trustee could not bring such a claim against the [shareholders] under California law, there is no reason why Ahcom’s claims against the [shareholders] cannot proceed.”

A pithy yet profound decision.

Ahcom, Ltd. v. Smeding, 2010 DJDAR 16125 (9th Cir. Oct. 21, 2010)

In a recent bankruptcy case, the Ninth Circuit held that a transfer to a trust could be set aside years after the transfer was made.  In In re Schwarzkopf (9th Cir Nov. 23, 2010) ___ F.3d ___, the court held that, because the transfer was a fraud on creditors at the time it was made, the taint of fraud was not erased by the passage of time.

Accordingly, when the debtors filed a bankruptcy petition more than a decade after the trust was formed, the trustee could set aside the transfer and recover the property for benefit of other creditors.

This result is somewhat surprising, considering that California law provides a seven-year statute of limitations to challenge a fraudulent transfer.  The court held that the statute of limitations did not start to run until years later, when the named trustee disputed that the trust assets were part of the bankruptcy estate.

The underlying facts were as follows.  “The Debtors created both the Apartment Trust and the Grove Trust on June 15, 1992. They named their minor child, Sydnee Michaels [as] beneficiary and appointed Juan Briones [as] trustee.  Simultaneously with the creation of the Apartment Trust, Michaels transferred all the stock of Kokee Woods Apartments, Inc. to the Apartment Trust.”

The trial court found that the 1992 conveyance was fraudulent.  Specifically, “the bankruptcy court found that . . . the Debtors were insolvent and that [the Debtors] devised the transfer to avoid his creditors’ ability to recover the asset.  Therefore, it concluded, the transfer was made for the fraudulent purpose of avoiding the Debtors’ creditors.”

Now, as it turned out, the debtors subsequently became solvent – “After the transfer, Michaels successfully appealed the verdict.”  But that did not cure the taint that existed at the time of the original transfer to trust.

This action was commenced in bankruptcy court.  “In October 2003, the Debtors filed bankruptcy petitions seeking to discharge approximately $5.4 million in debt.  Goodrich, as trustee for the consolidated bankruptcy estates, filed an adversary complaint seeking to recover approximately $4 million in assets from the Apartment Trust and the Grove Trust.“

Held the Ninth Circuit, “We agree with the district court’s conclusion that the Apartment Trust is invalid, and we further hold that Goodrich’s claim to invalidate it is not time-barred.  Because we hold that the Apartment Trust is invalid and may therefore be disregarded, we need not address whether it is Michaels’s alter ego.”

Explained the court, “It is well-settled that a trust created for the purpose of defrauding creditors or other persons is illegal and may be disregarded.  Properly designating a minor child as a beneficiary does not validate a trust that was created with an improper purpose.”

“Here, the bankruptcy court found that Michaels transferred the Kokee Woods stock simultaneously with the creation of the Apartment Trust and that the transfer ‘was made for the fraudulent purpose of avoiding the Debtors’ creditors.’  Those findings are sufficient to establish that Michaels’s purpose in creating the trust was to defraud creditors.  The Apartment Trust is therefore an invalid trust.”

As an invalid trust, the passage of time did not wash away any sins at the inception of the trust.  “Even to the extent it alleges fraudulent transfer, Goodrich’s claim is not time-barred by the seven-year statute of limitations set forth in California Civil Code § 3439.09(c).  If an express trust fails – if, for instance, it was formed for a fraudulent purpose – the trustee holds legal title to the property on a resulting trust for the trustor and his or her heirs.“

What the court is saying, implicitly, is that a fraudulent conveyance in trust is an illegal transfer, and will never become valid, notwithstanding the passage of time.

“Because the Apartment Trust is invalid, Briones is a voluntary trustee on a resulting trust for Michaels and his heirs. The statute of limitations did not begin to run until Briones repudiated the trust, that is, until he answered Goodrich’s complaint and denied that the Apartment Trust’s assets are property of the bankruptcy estate. We therefore conclude that Goodrich’s claim is not time-barred, and we affirm the district court’s judgment that the Apartment Trust is invalid.”

In re Schwarzkopf (9th Cir Nov. 23, 2010) ___ F.3d ___