Archive for March, 2011

Trustee Can be Held Liable for Debts As Alter Ego of Limited Liability Company

Monday, March 21st, 2011

Another in a recent wave of California cases has hit the nail on the head, holding that the trustee can be held liable for debts, but not the trust itself.  The reason is elementary – a trust is a relationship, not an entity.  This rule has roots that run back hundreds of years.  It explains a number of the seeming paradoxes in trust law.

The second published appellate decision in Greenspan v. LADT, LLC (Dec. 30, 2010) 191 Cal.App.4th 486 concerned efforts to enforce an $8.45 million judgment.  It seems that $47 million in assets that should have been available to satisfy a judgment had dwindled to $13,000.  The judgment creditor looked to other assets to satisfy the judgment.

This is one of the inflection points at which our legal system buckles.  It can be inordinately difficult to enforce a judgment.  Here, the court held that it was proper to amend the judgment to add the trustee as a judgment debtor.  With a twist, because the trustee was the manager of the limited liability companies against which the judgment was entered, such that the liability was based on an alter ego theory.

Let’s consider the court’s analysis.  The court held that Barry Shy could be added as judgment debtor based on “his control of the Shy Trust and its companies to such an extent that his failure to satisfy the judgment would promote injustice.”

The court employed a well-known procedure, stating that “Amendment of a judgment to add an alter ego is an equitable procedure based on the theory that the court is not amending the judgment to add a new defendant but is merely inserting the correct name of the real defendant.”

Now, I have trouble understanding why equity should intervene, because the claim seeks substantive legal relief.  The cavalier use of this procedure does not promote justice, especially when the defendants were known to the plaintiff during the trial on the merits.  Still, court held that “such a procedure is an appropriate and complete method by which to bind new defendants where it can be demonstrated that in their capacity as alter ego of the corporation they in fact had control of the previous litigation, and thus were virtually represented in the lawsuit.”

The trustee was the manager of the limited liability companies against which judgment was entered.  His liability arose, as a factual matter, from his management of the limited liability companies, not from his acts as trustee (manager) of the trusts.  This then is a leap, albeit a small one.  With our modern statutory schemes for limited liability companies, we have made it difficult to enforce judgments placed against an LLC.


Stated the court, “we conclude the alter ego doctrine may apply to a trustee but not a trust . . . Courts often speak of the alter ego doctrine as if it applied to a trust as an entity.  But a distinction must be made between a trust and a trustee. The general rule that a trust is a relationship is universally recognized by U.S. cases and statutes, and is consistent with the prevailing norms of the entire common-law world. The fundamental nature of this relationship is that one person holds legal title for the benefit of another person.  Thus, in actuality, a trust is not a legal person which can own property or enter into contracts.”

That is a rock-solid statement of the law, correct on all points.  “Because a trust is not an entity, it’s impossible for a trust to be anybody’s alter ego. That’s because alter ego theory, which is simply one of the grounds to ‘pierce the corporate veil,’ is inescapably linked to the notion that one person or entity exercises undue control over another person or entity.  However, a trust’s status as a non-entity logically precludes a trust from being an alter ego.”

The court is still right on the money.  “Unlike a corporation, a trust is not a legal entity. Legal title to property owned by a trust is held by the trustee.  A trust is simply a collection of assets and liabilities. As such, it has no capacity to sue or be sued, or to defend an action.”

But now we enter a hazy area.  Generally, a claim against the trustee must be connected to a claim connected with the management and operation of trust assets.  Stated differently, the personal liability of a trustee for his wrongdoing does not enable a judgment creditor to reach trust assets.  Such protection of trust assets is tied to the fundamental notion that a trust is a relationship, whereby the trustee holds title to the trust assets for benefit of the cestui que trust.

The court’s next step is not on such firm grounding.  “The proper procedure for one who wishes to ensure that trust property will be available to satisfy a judgment is to sue the trustee in his or her representative capacity.”  True, but the court seeks to hold the trustee liable for debts owed by a trust asset.  How do we cross this bridge?

In a single leap.  “In the present case, Greenspan properly sought to add Moti Shai, the trustee of the Shy Trust, as a judgment debtor.  If Moti Shai is the alter ego of Barry Shy, then Barry may be considered the owner of the Shy Trust’s assets for purposes of satisfying the judgment.”

This result means that the court is disregarding two layers – the limited liability company (on alter ego grounds) and the trust.  I propose that the trust should be disregarded on a more fundamental basis – an estate planning trust has no legal effect until the death of the settlor.  If the trust is revocable by the trustor, it should always be ignored by the court.  If the trust is irrevocable, then we enter the familiar area of the fraudulent transfer.  In other words, the court reached the right result, but there’s an easier way to connect the dots.

Greenspan v. LADT, LLC (Dec. 30, 2010) 191 Cal.App.4th 486

In re Honkanen – Bankruptcy Court Holds that Real Estate Broker’s Breach of Fiduciary Obligation is Dischargeable

Sunday, March 13th, 2011

A new decision has made an important change concerning he liability of real estate brokers in the context of a bankruptcy.  Specifically, the decision in In re Honkanen, 2011 DJDAR 3358 (9th Cir. Bankruptcy Appellate Panel March 4, 2011) holds that a real estate broker can obtain a discharge from a state court finding of breach of fiduciary duties if the finding was based on the debtor’s status as a broker.

In other words, state law holds that a broker owes fiduciary duties to his client.  Bankruptcy law holds that certain debts arising out of a breach of fiduciary duties are not dischargeable in bankruptcy.  The Honkanen court stepped into the intersection of these rules and held that the broker’s breach of fiduciary duties is a dischargeable debt because the broker was not acting as a trustee.  This represents a change in existing precedent.

Here are the facts.  “Honkanen had acted as Archer’s real estate broker[.]  After the transaction was not consummated, Archer sued Honkanen in state court accusing Honkanen of performing her real estate licensee duties negligently and of intentionally breaching her fiduciary duty to Archer.”

According to the lawsuit, “The alleged breach consisted of Honkanen making intentional misrepresentations to Archer concerning the real estate purchase agreement and the insufficiency of Archer’s performance, in addition to failing to disclose the deficiency in Archer’s performance . . . Archer also accused Honkanen of breaching her fiduciary duty of loyalty to Archer, the buyer, by acting in the interest of the seller rather than in Archer’s, interest.”

The result was in favor of the client.  “The jury awarded Archer damages in the amount of $356,000 for negligent and intentional breach of Honkanen’s fiduciary duty to Archer.”

Ms. Honkanen later filed for bankruptcy.  The client filed an adversary complaint seeking to hold that the debt was not dischargeable.  Based on prior case law (which was favorable to the creditor), “the only evidence admitted at trial was the original state court complaint, the state court judgment, and the state court jury instructions.”

Under prior law, this would have been sufficient to support a finding of non-dischargeability.  However, the appellate court made a break with published precedent, explaining that, “The broad definition of fiduciary under nonbankruptcy law – a relationship involving trust, confidence, and good faith – is inapplicable the dischargeability context.”

Asian Garden Mall

Instead, the Honkanen court stated that in the bankruptcy context, “the Ninth Circuit has adopted a narrow definition of ‘fiduciary.’ To fit within § 523 (a) (4), the fiduciary relationship must be one arising from an express or technical trust that was imposed before, and without reference to, the wrongdoing that caused the debt as opposed to a trust ex maleficio, constructively imposed because of the act of wrongdoing from which the debt arose.”

In other words, for the debt to be non-dischargeable, “the applicable state law must clearly define fiduciary duties and identify trust property . . . The mere fact that state law puts two parties in a fiduciary-like relationship does not necessarily mean it is a fiduciary relationship within 11 U.S.C. § 523 (a)(4).”

The Honkanen court then found a change in the law.  “In Cantrell, 329 F.3d 1119 (2003), the Ninth Circuit decided an issue of first impression and interpreted California corporate law to conclude that while officers and directors of a corporation are imbued with the fiduciary duties of an agent and certain duties of a trustee, they are not trustees with respect to corporate assets and, therefore, are not fiduciaries within the meaning of § 523(a)(4).”

To this end, non-dischargeability for breach of fiduciary obligations requires an express finding of a trust.  “In Cantrell, Cal-Micro, the plaintiff, contended that under California law a corporate officer is a statutory trustee with respect to corporate assets but the court rejected that contention because the cases relied upon by Cal-Micro merely held that officers owe fiduciary duties in their capacity as agents of a corporation – but failed to hold the officers are trustees of an express, technical, or statutory trust with respect to corporate assets.”

Here is an important point of law.  “A director of a corporation acts in a fiduciary capacity and the law does not allow him to secure any personal advantage as against the corporation or its stockholders.  However, speaking, the relationship is not one of trust, but of agency.”

Therefore, the law did not support a holding of non-dischargeability.  “Based on the requirements set forth in Cantrell, a California real estate licensee does not meet the fiduciary capacity requirement of § 523(a) (4) solely based on his or her status as a real estate licensee.  General fiduciary obligations are not sufficient to fulfill the fiduciary capacity requirement in the absence of a statutory, express, or technical trust.”

The decision affirms that fiduciary obligations – and the results arising from such a relationship – are often case-specific.

In re Honkanen, 2011 DJDAR 3358 (9th Cir. Bankruptcy Appellate Panel March 4, 2011)

Smith v. Home Loan Funding – An Excessive Remedy Against Mortgage Broker

Saturday, March 5th, 2011

The decision in Smith v. Home Loan Funding, Inc. (Feb. 25, 2011) 2011 DJDAR 2968 may have satisfied a “feel good” impulse at the Court of Appeal.  However, it seems that Justice Gilbert jumped the rails when he affirmed the award of damages.  Even more, he awarded attorney’s fees when there was no contract between the parties providing for such recovery.  The result is intellectually disappointing.

The case involved a loan that was placed by Home Loan Funding (HLF).  According to the opinion, “Anthony Baden worked for HLF as a loan officer.  He had no real estate or mortgage broker license.  In March 2006, Tonya Smith contacted Baden in response to an advertisement she received from HLF.  She sought a $40,000 home equity line of credit.  Her home had existing first and second mortgages.”

Here comes the fact that gave rise to a finding of liability.  “[Anthony] told [Tonya] he could ‘shop the loan.’  When asked whether Baden ever told her that he was a mortgage broker Smith replied, “I believe so, yes.”  Smith testified that she trusted Baden completely, and believed he would provide her with the best loan.”

In fact, “Baden provided Smith with a $700,000 first trust deed.  The loan had a term of 30 years with a variable interest rate. The loan contained a 3.85 margin over the indexed interest rate.”

In addition, “Smith did not want a prepayment penalty on the new loan. Baden represented to her that the new loan would have none.  Baden reassured Smith and her husband throughout escrow that there would be no prepayment penalty and sent an email to assure them.”  But when it came time to close, “a prepayment penalty was reinserted into the transaction by means of a rider.”

The loan was favorable to the broker.  “Smith’s expert, Luis Araya, testified that the commission available to HLF for the sale of the loan on the secondary market was greatly enhanced by the inclusion of both a prepayment penalty and a heavily marked-up margin.  Araya also testified that a 3.85 margin is ‘astronomical.’”

Now we start to wonder about the bona fides of the transaction, and whether they support the award of damages.  “Araya testified that Smith cannot refinance her loan in today’s market. She cannot provide sufficient documentation of her income.  There are no longer loans available without documentation of income.”

Duh.  Those days are gone.  But this statement suggests that the borrower (Tonya) obtained what is sometimes referred to as a “liar loan,” with no evidence of income or ability to repay the loan.  Meaning we can expect this loan to tilt into foreclosure.

The court noted that “a mortgage broker has a fiduciary duty toward the borrower.”  HLF argued that since it placed the loan in-house, it acted as the lender, not as a mortgage broker.  The court rejected this argument: “But that HLF ultimately persuaded Smith to accept one of its loans, hardly negates that HLF undertook to act as Smith’s broker.  Instead, it is evidence of HLF’s and Baden’s self-dealing at the expense of Smith.”

Mercat St. Josep in Barcelona

Now the thorny issue of damages.  On appeal, “HLF contends the trial court erred in awarding damages for the full life of the 30-year loan.  It claims there is no evidence Smith would hold the loan or the property for 30 years . . . In Stratton v. Tejani (1982) 139 Cal.App.3d 204 . . . The court stated that residential real property typically is held for only seven to ten years.”

That’s an accurate statement regarding property ownership.  Even more, what if the house goes to foreclosure (perhaps likely, given that the loan was made without proof of income)?  It seems that if the court were to award damages on a 30-year basis, it would provide a windfall to the customer.

But that argument went nowhere on appeal.  Stated Justice Gilbert, “We think Stratton is not applicable here. That the mortgage has a term of 30 years is sufficient to support the trial court’s calculation . . . The evidence is that Smith does not qualify to refinance.  She is more likely than anyone to be saddled with a 30-year mortgage.”

To rub salt in the wound, the court of appeal affirmed an award of attorney’s fees to the borrower based on a clause in “the note secured by the deed of trust.’”

Common sense tells me that the promissory note is separate from the claim against the mortgage broker, which claim was based on breach of fiduciary duties.  Remember when the court said, “You shopped the loan, you’re a mortgage broker.”  On appeal “HLF points out that under section 1717 a prevailing party cannot recover fees for actions based on tort including breach of fiduciary duty and misrepresentation.”

But when it came to attorney’s fees, the court lumped it all together, even though no claim was stated under the promissory note or the deed of trust.

Here comes the train wreck.  “Here, not only did HLF have a fiduciary obligation, but Baden made an express oral promise to Smith that he would shop the best loan for her.  [T]he trial court treated the oral brokerage agreement and the loan documents as a single agreement. This was justified because they were all part of the same transaction.  The award of attorney fees was proper.”

That seems like piling on.  The defendant was held liable as a fiduciary because of shopped the loan.  Then the court mashed all of the documents together and said, “Hey, we found an attorney’s fees clause in one of the contracts.”  That is not a logical outcome.  But, because the California Supreme Court almost never takes up business cases for review, the decision will be binding.

Smith v. Home Loan Funding, Inc. (Feb. 25, 2011) 2011 DJDAR 2968

Bonfigli – Don’t Press Your Luck with a Power of Attorney

Tuesday, March 1st, 2011

The decision in Bonfigli v. Strachan (Feb. 24, 2011) 2011 DJDAR 2893 is a reminder not to press for advantage when using a power of attorney.  The defendant was a developer who used a power of attorney to reconfigure two parcels so that he got to keep the land, but did not have to pay the seller.  Needless to say, the court of appeal was not amused.

As part of its analysis, the court considered the rules applicable to a “power coupled with an interest,” and based its decision on a Supreme Court case from 1823.  Let’s take a history lesson.

Plaintiff owned two parcels on Sebastopol Road in Santa Rosa.  The defendant developer needed “needed the [plaintiffs’] parcel in order to develop the overall project, and specifically, the ‘Village Square’ portion of the development.”  Defendant took an option to purchase the properties.  In a critical fact, “The option expired on July 1, 2001, without being exercised.”

Here’s where it gets interesting.  “In May 2001, respondents filed a lot line adjustment application with the City of Santa Rosa.”  Acting under a power of attorney, the developer executed the lot line adjustment on behalf of plaintiffs.  According to the court, “the reason given for the lot line adjustment was to ‘reconfigure lot line as desired by property owners.’”

However, the reality was that “the requested adjustment decreased the size of the Bonfiglis’ front parcel by approximately 60 percent,” with the acreage being transferred to a different parcel owned by the developer.  Which is to say, the defendant took land from plaintiffs “to create a buildable parcel [but] respondents did not pay the Bonfiglis for the transfer nor did they ever purchase the front parcel.”

Then, to rub salt in the wound, the developer encumbered the property with a $22.6 million loan.  “The Bonfiglis’ parcel, among others, was used as collateral for the loan, with respondents signing as attorneys-in-fact for the Bonfiglis . . . even though the option had expired.”  This was followed, not surprisingly, by a bankruptcy filing by the entity that was being used to make the development.

It seems astonishing that this case made it to a jury, and more astonishing that plaintiffs did not prevail (however, reversed on appeal).  The critical issues on appeal involved a power of attorney signed by plaintiffs in 2000.

Here the court used its wayback machine, stating that “California decisional law has consistently followed the definition of a power coupled with an interest set out by Chief Justice Marshall in Hunt v. Rousmanier (1823) 21 U.S. 174, 203: ‘A power coupled with an interest,” is a power which accompanies, or is connected with, an interest.  The power and the interest are united in the same person.’”


This isn’t a traditional power of attorney.  Its sui generis.  “The purpose of a power coupled with an interest is to protect the agent’s interest in the subject and its value, this kind of power of attorney is not an ‘agency’ as that term is commonly understood.  Rather, the creator of the power relinquishes irrevocably any authority to direct the attorney-in-fact who is permitted, under such an arrangement, to act solely in his own interests. “

This special kind of power of attorney does not create fiduciary obligations by the power holder in favor of his principal.  Citing the Restatement Third of Agency, section 3.12, the court explained that a “power given as security does not create a relationship of agency . . . The holder is not subject to the creator’s control and the holder does not owe fiduciary duties to the creator.”

However, “If the creator grants the power to protect an ownership interest of the holder, the power terminates when the holder no longer has the ownership interest.” For this reason, the developer was held liable for wrongful acts after its option had expired.  “The powers granted to [the developer gave] them the power to use the land to develop the project.  The interest being protected is the right to purchase the property at a specified price; and the value of that interest was secured by respondents’ ability to control the property for development purposes.”

Even more, the developer (Alan Strachan, who was represented by family member Gordon Strachan) was held personally liable for the injuries to plaintiffs because he directed his business entity to execute the lot line adjustment.

Explained that court, “Respondents [ ] cannot escape potential liability by using their business entity as a shield . . . Directors or officers are liable to third persons who are injured by their own tortious conduct regardless of whether they acted on behalf of the corporation and regardless of whether the corporation is also liable.”

Added the court, “This liability does not depend on the same grounds as ‘piercing the corporate veil,’ on account of inadequate capitalization for instance, but rather on the officer or director’s personal participation or specific authorization of the tortious act.”

In the end, justice was served.

Bonfigli v. Strachan (Feb. 24, 2011) 2011 DJDAR 2893