Fresno Lawyer – Randolf Krbechek

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

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.”

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)

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.”

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

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

The opinion in In re Marriage of Fossum (Feb. 1, 2011) 2011 DJDAR 1629 focused on the characterization of a house that was owned by Edward and Sandra Fossum.  Like many couples, title was taken in the name of one spouse to obtain better credit terms.  The court found that the house was community property, notwithstanding the fact that the wife knowingly and intentionally signed a quitclaim deed in favor of her husband.

That result is interesting, but not as interesting as the finding that the wife was liable to the ex-husband for attorney’s fees as a result of an undisclosed loan in favor of the wife.  Read on.

Concerning the house, “Edward Fossum and his ex-wife, respondent Sandra Fossum purchased a house [at 21557 Placerita Canyon Road, Santa Clarita] in 1994 . . . Edward had a better credit rating than Sandra.  Because of that, a lender recommended, and Edward and Sandra agreed, that Edward should finance the house and take title to the property in his name [only], in order to obtain a better interest rate.”

Here is the essential fact that sunk Edward’s argument.  “After the loan closed in October 1994, Edward kept his promise and executed a quitclaim deed, dated August 16, 1995, in favor of Edward and Sandra Fossum, as joint tenants.”

This was followed by a second loan in 1998.  “Edward told Sandra that because her credit history remained a problem, they should do the same thing they had done when they first bought the house, in order to obtain a better interest rate. “

“Sandra and Edward agreed to refinance the property in Edward’s name alone and that, just as before, Edward would restore Sandra’s name to title once the transaction was complete.  Sandra believed Edward, and signed a quitclaim deed in his favor in May 1998.”

“But, Sandra and Edward ‘got busy,’ and Edward never got around to executing a new quitclaim deed.  By 2002, the marriage was in trouble and, at Edward’s urging, the couple was undergoing counseling. At that point, Edward conditioned his willingness to return Sandra’s name to title on a list of requirements that she behave in a certain way, and become a ‘Godly woman and a good Christian wife,’ with a ‘heart . . . free of sin.’”

In the end, Edward refused to acknowledge that Sandra held a community property interest in the house.  Now, the fact that Sandra voluntarily signed a deed in favor of her ex-husband would seem to be a bad fact.  The court found that “Sandra agreed to execute the third quitclaim deed, and understood what she was doing.”

Yet, the court made short work of the deed, noting that “spouses occupy a confidential and fiduciary relationship with each other.  The nature of this relationship imposes a duty of the highest good faith and fair dealing on each spouse as to any interspousal transaction.”   As such, the court explained that “if an interspousal transaction results in one spouse obtaining an advantage over the other, a rebuttable presumption of undue influence will attach to the transaction.”

Edward then bore the burden of proof, meaning that the deed was, for practical purposes, disregarded.  “The advantaged spouse must show, by a preponderance of evidence, that his or her advantage was not gained in violation of the fiduciary relationship.”

More bluntly, “The problem with Edward’s argument is that it essentially ignores the rule that the form of title presumption simply does not apply in cases in which it conflicts with the presumption that one spouse has exerted undue influence over the other.”

The court noted that “Sandra did testify she executed the 1998 deed freely and voluntarily, and that she understood the legal import of a quitclaim deed.  However, when Sandra agreed to deed her interest in the property to Edward, she did so based on his promise to restore her name to the title once the refinance was complete.  She now claims the transaction was predicated on a false promise, that Edward never intended to fulfill.”

So, Sandra prevailed on her claim based on the deed.  Yet, the second part of the decision is the surprise.  Found the court, “Prior to the parties’ separation, Sandra took a cash advance on a credit card of $24,000, but never disclosed the transaction to Edward.  The trial court found Sandra had breached her statutory fiduciary duty to her spouse.”

OK, so Sandra drew on a credit card before the couple separated.  “Spouses have fiduciary duties to each other as to the management and control of community property.”  Here’s the clincher.  “Once a breach is shown, the trial court lacks discretion to deny an aggrieved spouse’s request for attorney fees . . . The matter must be remanded to permit the trial court to determine the amount of attorney’s fee to which Edward is entitled.”

That is a profound holding.  Regardless of the lack of malice or bad faith, the finding of a breach of fiduciary duties triggered a mandatory award of attorney’s fees to the other spouse.

The dissent emphasized this point, stating “as a leading treatise observes, the statutorily imposed fiduciary duties in marital dissolution actions are extremely strict, making innocent violations easy to commit.  A mandatory award of attorney fees, imposed regardless of the value of the asset at issue and irrespective of need and ability to pay, is a harsh remedy for a violation that is merely technical and wholly innocent, as might often be the case.”

In re Marriage of Fossum (Feb. 1, 2011) 2011 DJDAR 1629

For anyone dealing with distressed mortgages, the story about the lender who said it would “work” with a defaulted loan, only to abruptly proceed to foreclosure, is all-to-familiar.  A legal challenge against the lender must be based on existing legal precedent.

The January 27, 2011 decision in Aceves v. U.S. Bank, N.A. gives hope to borrowers who have been led on by their lender during the foreclosure period, only to have the lender change course and proceed with the sale of the property.

The decision provides a measure of relief by expressly stating that “promissory estoppel” is a theory of relief under California.  (More on this below).  However, the scope of the remedy is not certain, and the concluding portion of the opinion casts a damper over any expectation that Aceves will generate expansive relief for beleaguered homeowners.

The underlying facts were not complicated.  According to the lawsuit, Mrs. Aceves obtained an adjustable rate loan secured by a deed of trust on her residence. “About two years into the loan, she could not afford the monthly payments and filed for bankruptcy under chapter 7 of the Bankruptcy Code.”

According to the lawsuit, “Mrs. Aceves intended to convert the chapter 7 proceeding to a chapter 13 proceeding and to enlist the financial assistance of her husband to reinstate the loan, pay the arrearages, and resume the regular loan payments.”

In her complaint, Mrs. Aceves said that “she contacted the bank, which promised to work with her on a loan reinstatement and modification if she would forgo further bankruptcy proceedings. In reliance on that Mrs. Aceves did not convert her bankruptcy case to a chapter 13 proceeding or oppose the bank’s motion to lift the bankruptcy stay.”

The lender sought to have the complaint dismissed, which motion was rejected.  According to the court, “By promising to work with Mrs. Aceves to modify the loan in addition to reinstating it, U.S. Bank presented Mrs. Aceves with a compelling reason to opt for negotiations with the bank instead of seeking bankruptcy relief . . . But the bank did not work with plaintiff in an attempt to reinstate and modify the loan.  Rather, it completed the foreclosure.”

The decision does not reach the merits of the dispute, holding only that the action could proceed because the plaintiff stated a legally-recognized claim.  The court relied on the doctrine of “promissory estoppel,” which lies somewhere between fraud and contract.

Explained the court, “The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.”

Thus, even where there is no legal contract, the injured party can seek relief.  Held the court, “To be enforceable, a promise need only be definite enough that a court can determine the scope of the duty, and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages . . . That a promise is conditional does not render it unenforceable or ambiguous.”

The famous decision in Hoffman v. Red Owl Stores, Inc., 26 Wis. 2d 683 (1965) explained that “Originally the doctrine of promissory estoppel was invoked as a substitute for consideration rendering a gratuitous promise enforceable as a contract.  In other words, the acts of reliance by the promisee to his detriment provided a substitute for consideration.”

The Wisconsin Supreme Court continued.  “We deem it would be a mistake to regard an action grounded on promissory estoppel as the equivalent of a breach-of-contract action . . .  The third requirement, that the remedy can only be invoked where necessary to avoid injustice, is one that involves a policy decision by the court.   ¶ We conclude that injustice would result here if plaintiffs were not granted some relief because of the failure of defendants to keep their promises which induced plaintiffs to act to their detriment.”

Returning to Mrs. Aceves, “the question [is] whether U.S. Bank made and kept a promise to negotiate with Mrs. Aceves, not whether [ ] the bank promised to make a loan or, more precisely, to modify a loan . . . The bank either did or did not negotiate.”

The court added that an oral promise to postpone either a loan payment or a foreclosure is unenforceable.  “In the absence of consideration, a gratuitous oral promise to postpone a sale of property pursuant to the terms of a trust deed ordinarily would be unenforceable under Civil Code section 1698.  The same holds true for an oral promise to allow the postponement of mortgage payments.”

Yet, the court explained that “the doctrine of promissory estoppel is used to provide a substitute for the consideration which ordinarily is required to create an enforceable promise. The purpose of this doctrine is to make a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange.  Under this doctrine a promisor is bound when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise, if injustice can be avoided only by its enforcement.”

Finally, a frosty conclusion.  “A promissory estoppel claim generally entitles a plaintiff to the damages available on a breach of contract claim.  Because this is not a case where the homeowner paid the funds needed to reinstate the loan before the foreclosure, promissory estoppel does not provide a basis for voiding the deed of sale or otherwise invalidating the foreclosure.”

The inescapable fact is that there is no way to know whether a lender will approve a request for a loan modification.  There are no unified rules or procedures for lenders to use in evaluating a request for a loan modification, meaning that the platitudes offered by lenders are almost always empty promises.

Aceves v. U.S. Bank, N.A. (January 27, 2011) 2011 DJDAR 1613

The recent decision in Kucker v. Kucker focused on a narrow issue.  Is a general assignment of assets valid for transfer of stock into an estate planning trust?  The court answered in the affirmative, but not before confronting the statute of frauds.  And not before stating an important distinction regarding real property.

The facts were as follows. “On June 29, 2009, at the age of 84 years, [Mona Berkowitz]  signed a declaration creating a revocable inter vivos trust.  On the same date, [Mrs. Berkowitz] signed a general property assignment stating, “I . . . hereby assign, transfer and convey to Mona S. Berkowitz, Trustee of the [the Trust], all of my right, title and interest in all property owned by me, both real and personal and wherever located.”

Mrs. Berkowitz “died in November 2009. In February 2010, appellants filed a petition to confirm that 3,017 shares of stock in Medco Health Solutions, Inc., (Medco) were an asset of the Trust.”

Here is where the dispute arose.  “Medco was not mentioned in the assignment of stock signed by the Trustor on October 29, 2009.  Appellants declared that the Medco shares were not held in the Trust’s brokerage account at the time of the Trustor’s death.”

The beneficiaries of the estate planning trust sought a declaration that the Medco stock was an asset of the trust.  The trial court held that “Probate Code section 15207 must be read in conjunction with Civil Code section 1624(a)(7).  In those instances where the settler intends to transfer assets in excess of $100,000, a writing specifically describing the property is required. Accordingly, the petition confirming assets in the trust is denied.”

This ruling was reversed on appeal.  The appellate court first dealt with the statute of frauds issue, holding that, “Civil Code section 1624, subdivision (a)(7), cannot be construed as applying to the transfer of shares of stock to a Trust.  The plain meaning of the words of the statute manifests a legislative intent to limit the statute’s application to agreements to loan money or extend credit made by persons in the business of loaning money or extending credit.”

Then the court turned to the effect of the assignment.  As to land, a general assignment is not effective.  “The General Assignment was ineffective to transfer the Trustor’s real property to the Trust.  To satisfy the statute of frauds, the General Assignment was required to describe the real property so that it could be identified.”

According to the court, this restriction does not apply to shares of stock.  “The issue here concerns the Trustor’s transfer of shares of stock, not real property. The statute of frauds does not apply to such a transfer. (Civ. Code, § 1624.)  There is no California authority invalidating a transfer of shares of stock to a trust because a general assignment of personal property did not identify the shares.  Nor should there be.”

Held the court, “it was unnecessary for the General Assignment to identify the Medco stock.  The practice guide says that such a general assignment of personal property is a commonly used estate planning tool.”

So, the general assignment saves the day for the transfer of stock into an estate planning trust.

Kucker v. Kucker (Jan. 26, 2011) 2011 DJDAR 1477

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 ___