Creditor's Comm v. Jumer, D. James ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1862
CREDITOR’S COMMITTEE OF
JUMER’S CASTLE LODGE, INC.,
Plaintiff-Appellant,
v.
D. JAMES JUMER,
Defendant-Appellee.
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Appeal from the United States District Court
for the Central District of Illinois.
No. 05-1178—Joe Billy McDade, Judge.
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ARGUED NOVEMBER 3, 2006—DECIDED JANUARY 2, 2007
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Before EASTERBROOK, Chief Judge, and FLAUM and
WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. On October 13, 1999, Jumer’s
Castle Lodge (JCL) filed for bankruptcy. As part of the
bankruptcy proceedings, JCL’s Creditors’ Committee (the
Committee) sued James Jumer to set aside a July 31, 1998
transaction that the Committee claimed was fraudulent.
The bankruptcy court granted summary judgment in
Jumer’s favor, and the district court affirmed. For the
following reasons, we affirm as well.
2 No. 06-1862
I. Background
In October 1997, Jumer was the principal shareholder
of JCL, a financially unstable corporation that owned a
central Illinois hotel chain recognizable for its historical
German theme. Jumer knew that his company was
struggling, so he attempted to sell it to Saranow Gaming
Investors, Inc. (Saranow), through its representative,
Frank Pedulla. Saranow declined to purchase JCL out-
right, however, because of JCL’s shaky bottom line. JCL
had already defaulted on loans with two different banks;
its balance sheet revealed a number of past-due accounts
receivable from other Jumer-owned entities; and it was
paying Jumer $14,000 per month to lease property for its
Galesburg Hotel.
Preferring a less risky investment, Saranow agreed to
purchase thirty percent of JCL’s stock for $2 million,
with the condition that JCL and Jumer make a number
of transfers aimed at improving JCL’s balance sheet.
Jumer had to transfer to JCL his ownership in the
Galesberg Hotel property (to eliminate the monthly lease
payments), two parcels of real property adjacent to JCL’s
Peoria Hotel, and $1 million in cash in partial satisfac-
tion of numerous promissory notes and accounts receiv-
able due and owing from Jumer’s other enterprises. In
exchange, Jumer had to accept all of JCL’s non-hotel
assets, including its inter-company accounts receivable,
three automobiles, the existing cash value of Jumer’s life
insurance policy, and a gas station.
On July 31, 1998, Saranow, JCL, and Jumer entered
into two interrelated agreements: an Agreement for Sale
of Real Property (covering the transactions between
Jumer and JCL) and a Securities Purchase Agreement
(covering Saranow’s purchase of thirty percent of JCL’s
stock). The agreements resulted in the following transfers:
No. 06-1862 3
! Jumer gave JCL the Galesberg Hotel valued at
$2.1 million,1 the property adjacent to the Peoria
Hotel valued at $100,000, and $1 million in cash.
! Saranow gave JCL $2 million.
! JCL or Jumer (it is not clear which) gave Saranow
thirty percent of JCL’s stock.2
! JCL gave Jumer an account receivable, the book
value of which was $2,767,545; additional ac-
counts receivable valued at $1,459,110; three auto-
mobiles valued at $64,000; a number of life insur-
ance policies valued at $100,504; and a gas sta-
tion valued at $106,493.
Unfortunately for JCL, the influx of capital was not
enough to keep it solvent, and on October 13, 1999, it
filed for bankruptcy. The Committee then filed suit
against Jumer, seeking to set aside the Agreement for
Sale of Real Property under the Illinois Uniform Fraudu-
lent Transfer Act (IUFTA), 740 ILCS 160/6. The Com-
mittee alleged that JCL did not receive reasonable equiva-
lent value for the items it transferred to Jumer.
1
The parties offered conflicting evidence concerning the value
of the Galesberg Hotel. Because we are reviewing a summary
judgment ruling, we assume that the Committee’s appraisal
was accurate.
2
The parties dispute who owned the stock that Saranow
purchased. Jumer contends that he owned it, and the Committee
contends that JCL owned it. Inexplicably, the Securities Pur-
chase Agreement is not in the record, and the parties have
not cited any evidence that sheds light on the issue. Frank
Pedulla stated in his affidavit that he “proposed Saranow’s
purchase of a 30% interest from JCL for the sum of $2,000,000.”
Pedulla Aff. ¶8 (emphasis added). Pedulla’s testimony, however,
only discusses an initial proposal and does not discuss what
happened when the parties actually consummated the deal.
4 No. 06-1862
On June 3, 2004, Jumer filed a motion for summary
judgment, arguing that JCL received far more than it
surrendered in the two July 31, 1998 transactions. He
maintained that the $2,767,545 account receivable that
JCL transferred to Jumer was essentially worthless. In
support of this argument, Jumer offered the affidavit of
John Elias, JCL’s attorney during the July 31 transactions,
who averred that the account represented a loan to
Jumer’s of St. Charles (JSC), another Jumer-owned
company, and that JSC used the loan proceeds to pur-
chase a steel hull for a riverboat casino. Elias said that
the State of Missouri ultimately refused to license the
partially constructed casino and that, as a result, JSC
had to sell the hull for scrap. He also stated that at the
time of the July 31 transactions, JSC had no prospect of
obtaining a casino license, virtually no assets, and no
ongoing operations. Jumer’s motion for summary judg-
ment also argued that the bankruptcy court should
examine both July 31 transactions together when evalu-
ating whether JCL received adequate consideration. That
approach, Jumer asserted, would appropriately take
into account the $2 million investment that JCL received
from Saranow.
The bankruptcy court granted Jumer’s motion. It
evaluated the July 31 transactions together for pur-
poses of determining whether there was a fraudulent
transfer. It also concluded that the Committee offered no
evidence that the JSC account receivable was worth
more than $17,000, but stated that the transaction was
fair regardless. Based on these conclusions, the bank-
ruptcy court held that the Committee had not offered
evidence from which a jury reasonably could find that
JCL made a fraudulent transfer. On appeal, the district
court affirmed, adopting the bankruptcy court’s analysis.
No. 06-1862 5
II. Analysis
The Court reviews de novo the bankruptcy court’s entry
of summary judgment. See Lee v. Keith, 463 F.3d 763, 767
(7th Cir. 2006). Under Federal Rule of Civil Procedure
56(c), a party moving for summary judgment has the
initial burden of “informing the . . . court of the basis for
its motion, and identifying those portions of ‘the plead-
ings, depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if any,’ which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party meets its burden, summary
judgment is proper if the non-moving party “fails to
make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Id. at
322. In other words, to survive Jumer’s summary judg-
ment motion, the Committee had to offer evidence from
which a jury reasonably could find in its favor. See Yindee
v. CCH, Inc., 458 F.3d 599, 601 (7th Cir. 2006).
Under the IUFTA,
A transfer made or obligation incurred by a debtor is
fraudulent as to a creditor whose claim arose before
the transfer was made or the obligation was incurred
if the debtor made the transfer or incurred the obliga-
tion without receiving a reasonably equivalent value
in exchange for the transfer or obligation and the
debtor was insolvent at that time or the debtor be-
came insolvent as a result of the transfer or obligation.
740 ILCS 160/6. Illinois courts have not elaborated on
the meaning of “reasonably equivalent value,” except to
note that a transfer lacks reasonably equivalent value if
there is no or inadequate consideration. Regan v. Ivanelli,
246 Ill. App. 3d 798, 804, 617 N.E.2d 808, 814 (1993). This
Court has recognized, however, that because the IUFTA
6 No. 06-1862
is a uniform act, we may look to cases decided under 11
U.S.C. § 548, as well as cases interpreting other states’
versions of the Uniform Fraudulent Transfer Act (UFTA),
to determine the meaning of the phrase. See In re Image
Worldwide, Ltd., 139 F.3d 574, 577 (7th Cir. 1998). In one
§ 548 case, we said that “[t]he test used to determine
reasonably equivalent value in the context of a fraudulent
conveyance requires the [C]ourt to determine the value of
what was transferred and to compare it to what was
received.” Barber v. Golden Seed Co., Inc., 129 F.3d 382,
387 (7th Cir. 1997). The parties agree that this definition
of reasonably equivalent value provides the correct
method for evaluating whether a transfer is fraudulent
under Illinois law. See Appellant’s Br. at 16; Appellee’s Br.
at 5-6.
The parties do not agree, however, that JCL received
as much as it gave up in the two transactions. The Com-
mittee repeats its contentions—rejected by the district
and bankruptcy courts—that the reasonably equivalent
value calculation should not include the $2 million that
Saranow paid JCL and that the JSC account receivable
was worth its book value. It also argues, alternatively, that
even if the bankruptcy court correctly included the
$2 million investment as an asset that JCL received in the
July 31 transactions, it ignored the fact that JCL also
transferred thirty percent of its stock to Saranow during
the same transaction. Jumer responds that the bank-
ruptcy court correctly included the $2 million in the
calculation because it was part of the same overall trans-
action, that Jumer—not JCL—owned the stock that
Saranow received, and that the Committee has offered
no evidence that the JSC account receivable was worth
more than $17,000.
At the outset, we note that the parties’ dispute over
who initially owned the stock that Saranow received was
not relevant to the bankruptcy court’s reasonably equiva-
No. 06-1862 7
lent value calculation. Even if, as the Committee con-
tends, JCL owned the stock that it transferred to Saranow,
JCL did not surrender any assets by doing so. Unissued
stock is not an asset of a corporation. See Engel v.
Teleprompter Corp., 703 F.2d 127, 131 (5th Cir. 1983);
U.S. Cellular Inv. Co. of L.A., Inc. v. AirTouch Cellular,
No. CV 99-12606 DT BQRX, 2000 WL 349002, *7 (C.D. Cal.
March 27, 2000) (collecting cases). As a result, JCL’s stock
issuance (if it occurred at all) had no bearing on
the bankruptcy court’s calculation.
We next consider whether the bankruptcy court cor-
rectly included the $2 million Saranow investment in
its calculation. Both lower courts correctly explained that
JCL received over $5 million and gave up around
$4.4 million if the $2 million investment is included in
the calculation. This is true even assuming—as the dis-
trict and bankruptcy courts did—that the JSC account
receivable, which JCL transferred to Jumer, was worth
its full book value, $2,676,595.
An important question, therefore, is whether Illinois
courts evaluate reasonably equivalent value by col-
lapsing related transactions and analyzing them together.
The district court concluded that Illinois courts would
collapse related transactions, but did not cite an Illinois
case for the proposition. Instead, it relied on federal
court decisions applying other states’ versions of the
UFTA. See In re Jumer’s Castle Lodge, Inc., 338 B.R. 344,
356 (C.D. Ill. 2006) (citing Orr v. Kinderhill Corp., 991
F.2d 31, 35 (2d Cir. 1993) (applying New York law) and
Voest-Alpine Trading USA Corp. v. Vantage Steel Corp.,
919 F.2d 206, 212 (3d Cir. 1990) (applying Pennsylvania
law)). Though the district court’s analysis is compelling, we
decline to resolve whether the district court—and the
decisions it cited—correctly predict the Illinois Supreme
Court’s eventual resolution of this matter, for there is
an alternative reason to affirm the bankruptcy court’s
ruling.
8 No. 06-1862
As discussed above, Jumer, in his motion for summary
judgment, maintained that the JSC account receivable
was not worth its full book value because there was little
to no likelihood that JSC would ever repay the debt. In
support of this argument, Jumer offered evidence that
the actual value of the JSC debt was next to nothing
because JSC used JCL’s $2 million loan to buy a steel
hull for a riverboat casino that never obtained a license.
Jumer also offered evidence that at the time of the July 31,
1998 transactions, “[t]he total assets of [JSC], including
the proceeds of the eventual sale of the gambling boat
hull . . . totaled approximately $16,000-$17,000” and that
JSC “had no future prospects of obtaining a gaming
license, and had no ongoing operations.” Elias Aff. ¶8.
In response, the Committee offered the account’s book
value but offered no evidence concerning the likelihood
that the account would ever be repaid. This evidence is
insufficient to create a genuine issue of material fact.
Simply put, no jury reasonably could find that the JSC
account was worth its full book value, knowing that JSC
had virtually no assets or ongoing operations. For this
reason, the bankruptcy court correctly granted summary
judgment in Jumer’s favor.
As a last ditch argument, the Committee contends that
the lower courts erred by ruling that it had the burden of
proving that JCL made a fraudulent transfer. In support
of this argument, the Committee cites Falcon v. Thomas,
258 Ill. App. 3d 900, 629 N.E.2d 789 (1994), Hartigan v.
Anderson, 232 Ill. App. 3d 273, 597 N.E.2d 826 (1992),
and Kardynalski v. Fisher, 135 Ill. App. 3d 643, 482
N.E.2d 117 (1985). These cases, however, are not control-
ling. They hold that when a debtor makes a transfer to a
family member, receives inadequate consideration in
return, and then becomes insolvent, the defendant has
the burden of rebutting a presumption of fraud by clear
and convincing proof. In this case, the Committee has
No. 06-1862 9
offered no evidence that the transactions in question
involved inadequate consideration or family members. As
a result, the Committee correctly shouldered the burden
of proof.
The Committee also contends that Jumer should bear
the burden of proving the fairness of the transaction,
because in a breach of fiduciary duty case, the fiduciary
bears the burden of proving the fairness of an insider
transaction. See Ciolek v. Jaskiewicz, 38 Ill. App. 3d 822,
829, 349 N.E.2d 914, 920 (1976). The Court rejects this
argument as well. First, the Committee did not allege a
breach of fiduciary duty claim in its complaint. Second,
the Committee has not cited—and we have not found—
any case brought under the IUFTA in which a court
has shifted the burden of proof to an interested share-
holder or director to prove that a transfer was not fraudu-
lent. To the contrary, the plaintiff ordinarily bears the
burden of proving a fraudulent transfer. See, e.g., Casey
Nat’l Bank v. Roan, 282 Ill. App. 3d 55, 59, 668 N.E.2d
608, 611 (1996).
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
ruling.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-2-07