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Eleventh Circuit Gives Green Light to Broad Discovery in Aid of Foreign Bankruptcies

By Greg Grossman and Francis Curiel, Miami

The Eleventh Circuit recently affirmed a district court’s broad grant of discovery for use in five foreign bankruptcy proceedings to which the discovery applicant was a creditor-party. This article will briefly examine how the (relaxed) standard set forth by this Section 1782 proceeding compares to the (less relaxed) standard set forth by two notable Chapter 15 cases.

In re Petroforte, by now a well-known Chapter 15 case, involved the liquidation of one of Brazil’s largest gas and ethanol distributors. During the liquidation, the Brazilian trustee found evidence of fraudulent transfers made to several entities, which led the Brazilian court to extend the bankruptcy case to include the transferees. The Brazilian trustee commenced a Chapter 15 proceeding in the Southern District of Florida to seek discovery to assist the Brazilian liquidation. The discovery targets objected, arguing that the subpoenas sought broad financial information about the non-debtor targets that exceeded the limits of discovery under Section 1521(a)(4) and Rule 2004. When the court interpreted the scope of “debtor” under Section 1521(a)(4), it held, in part, that the entities that were subject to the Brazilian bankruptcy extension order were “debtors subject to Section 1521’s discovery powers; however, with regard to any third parties who were not subject to the extension order, the trustee was entitled to broad discovery only when the debtor was a majority stockholder in the non-debtor discovery target.

In re SAM likewise dealt with a Chapter 15 proceeding stemming from a Brazilian bankruptcy, wherein the debtor concealed corporate interests by transferring property to family members. The foreign representative sought documents relating to non-debtors who the foreign representative alleged were relevant to his investigation and potential recovery of assets of the foreign estate. The court focused on whether the foreign representative exceeded the proper scope of Rule 2004 discovery. It found that the foreign representative was entitled to discovery relating to (1) the transferees and (2) the non-debtor corporate entities in which the debtor had a majority interest or in those entities already found by the Brazilian courts to have participated in the debtor’s asset concealment scheme. The foreign representative was not entitled to discovery relating to the non-debtor entities whose connections to the debtor had not yet been established in the Brazilian courts. The court further noted that the foreign representative’s inquiries of non-debtors were to be narrowly tailored.

Notably, courts have analogized discovery under Chapter 15 with discovery under 28 U.S.C. § 1782. An incongruity may now exist when comparing Petroforte and In re SAM to the Eleventh Circuit’s recent case, In re Victoria.

In March 2018, Victoria, LLC (Victoria) filed a § 1782 application in the Southern District of Florida, seeking discovery for use in five pending Russian bankruptcy proceedings to which Victoria was a creditor. The bankruptcy proceedings pertained to either (1) Iliya Likhtenfeld (the Debtor) or (2) his Russian companies. Victoria planned to object to the dischargeability of debt, but first needed proof that the Debtor failed to disclose his U.S. assets in the Russian bankruptcies.

To do so, Victoria requested testimony and documents relating to corporate governance, banking, financing, money transfers, business transactions, accounting practices, and the like, from (1) the Debtor; (2) Florida banks with which the Debtor did business; (3) Florida entities that the Debtor allegedly owned or was affiliated with; and (4) individuals affiliated with the Florida entities. To support the existence of these affiliations, Victoria submitted Sunbiz corporate records. Some of these records showed that a woman—who lived at the same address as the Debtor—acted as (either current or former) manager and registered agent of two of the target Florida entities. Notably, the Debtor’s name appeared nowhere on the corporate records of these two Florida entities. Discovery was nonetheless granted for use in the Russian bankruptcies. The shared residence between the Debtor and the manager of these entities proved connection enough.

Moreover, in support of its allegations that the subpoena targets were “closely related” to the Debtor, and that the targets “should have documents and knowledge of assets tied to the Russian [bankruptcies],” Victoria created and submitted a chart showing that many of the Florida entities shared the same address, principals, and registered agents. The entities were thus alleged to be interrelated to each other, although not all directly related to the Debtor himself.

Victoria also submitted two noteworthy declarations in support of its Section 1782 application. The first declarant alleged “upon information and belief” that the Debtor had (1) caused his Russian companies to enter loan agreements with no intention of repaying; (2) failed to repay the borrowed money; and (3) transferred the borrowed money directly or indirectly to his family members or trusted representatives. Ultimately, the declarant “believed” that the borrowed funds found their way into the United States and were used, in part, to support the Debtor’s luxurious lifestyle in Florida. Neither the declarant nor Victoria submitted any other evidence to support these allegations or the connection between the borrowed funds and the Florida corporations. The second declarant stated that the Debtor had not disclosed any of his U.S. assets to the Russian bankruptcy court even though, “based on the [Sunbiz corporate records],” the Debtor owned and/or held officer positions in several Florida entities. Despite the tenuous connections between the Debtor and some subpoena targets, the court granted the broad financial discovery request with few limitations. The aforementioned evidence (or lack thereof) was enough for this grant of discovery to survive through the Eleventh Circuit, which upheld the district court’s ruling.

The disconnect between the above cases poses a noteworthy question—is the Petroforte limitation too narrow in light of the In re Victoria grant of discovery? Victoria, as a creditor seeking discovery assistance for use in foreign bankruptcy proceedings, was granted wide-ranging discovery relating to (1) the Debtor; (2) the Debtor’s banks; (3) non-debtor associates; and (4) non-debtor entities, some of which showed little to no relation to the Debtor besides a shared address with the entities’ manager.

The court did not inquire into the Debtor’s ownership interests (or transfer thereof). Nor did it probe into the foreign courts’ findings. Rather, the grant of discovery was based largely on uncorroborated beliefs and bare allegations. More so, it was based on reasonable suspicion that these target individuals and non-debtor entities were involved in the Debtor’s transfer of assets to the detriment of his creditors. In re Victoria has introduced a more relaxed standard that loosens the restrictions placed on discovery requests for use in foreign bankruptcies. In light of this recent development, perhaps it is time to reassess the scope of discovery in Chapter 15 cases, too.

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Your Recovery Is Mine: Enforcement of Judgments via a Judgment Debtor’s Claims Against Third Parties

Authored By: Daniel M. Coyle – Sequor Law

Introduction

Asset Recovery and Judgment Satisfaction demands access to broad remedies and creative thinking. A Judgment Creditors’ efforts to enforce a judgment may be stymied by property exemptions, wage-garnishment exemptions, trusts, multi-member LLCs, and/or because the Judgment Debtor’s property is held by a tenancy-by-the-entireties (if this manner of holding property is recognized in the state). Judgment Creditors and their counsel should look to other assets that are available, such as claims (also called choses in action) held by Judgment Debtors against others.

Black’s Law Dictionary (rev. 4th Ed. 1968) defines a chose in action as: A personal right not reduced into possession, but recoverable by a suit at law . . . A right to receive or recover a debt, demand, or damages on a cause of action ex contract or for a tort or omission of a duty

Seizure of Claims.

In Florida, for instance, a Judgment Creditor may reach such property via Florida’s Proceedings Supplementary statute, Fla. Stat. §56.29. Subsection (6) of that statute provides that “a court may order any property of the judgment debtor, not exempt from execution, or any property, debt, or other obligation due to the judgment debtor, in the hands of or under the control of any person subject to the Notice to Appear, to be levied upon and applied toward the satisfaction of the judgment debt.” Thus, if a Judgment Debtor has sued a third party, the Judgment Creditor may seize the claim under Fla. Stat. § 56.29. Myd Marine Distrib., Inc. v. Int’l Paint Ltd., 201 So. 3d 843, 845 (Fla. 4th DCA 2016). See also Gen. Guar. Ins. Co. of Fla. v. DaCosta, 190 So. 2d 211, 213–14 (Fla. 3d DCA 1966) (decided under predecessor statute). Other states also permit Judgment Creditors to execute and levy upon these types of assets. See, e.g., Holt v. Stollenwerck, 56 So. 912, 913 (Ala. 1911); Wittenauer v. Kaelin, 15 S.W.2d 461, 462-63 (Ky. Ct. App. 1929); Rucks-Brandt Const. Corp. v. Silver, 151 P.2d 399, 400 (Okla. 1944); Lynn v. Int’l Bhd. of Firemen & Oilers, 90 S.E.2d 204, 206 (S.C. 1955); Maranatha Faith Ctr., Inc. v. Colonial Tr. Co., 904 So. 2d 1004, 1010 (Miss. 2004); Reynolds v. Tufenkjian, 136 Nev. Adv. Op. 19 (2020). Once the Judgment Creditor seizes or attaches the claim, the Judgment Creditor now becomes the plaintiff, or potential plaintiff, as if the claim had been voluntarily assigned to it. The Judgment Creditor thus has full discretion in how to manage litigation of the claim, including full settlement discretion, but also must fund litigation of the claim.

Seeking an Equitable Lien on Claims for Personal Torts.

However, in Florida, a Judgment Creditor may not levy and execute on a claim under section 56.29 if the claim is one for a “personal” tort or the claim is not assignable. Shaughnessy v. Klein, 687 So. 2d 43 (Fla. 2d DCA 1997). Personal torts are those claims that are personal to the plaintiff and that the plaintiff cannot assign, due to the personal relationship of the claim to the victim. Such torts include, but are not limited to, assault and battery, fraud, medical malpractice, (most) legal malpractice, intentional infliction of emotional distress, slander, and malicious prosecution. Forgione v. Dennis Pirtle Agency, Inc., 93 F.3d 758, 760 (11th Cir. 1996), certified question accepted, 689 So. 2d 1069 (Fla. 1997), and certified question answered, 701 So. 2d 557 (Fla. 1997); 21 C.J.S. Creditors’ Suits s 29. YOUR RECOVERY IS MINE: ENFORCEMENT OF JUDGMENTS VIA A JUDGMENT DEBTOR’S CLAIMS AGAINST THIRD PARTIES. ThoughtLeaders4 Fire Magazine • ISSUE 3 44 Other courts also recognize the same limitation. See, e.g., Certified Grocers of California, Ltd v. San Gabriel Valley Bank, 197 Cal. Rptr. 710, 715 (Ct. App. 1983); Blackmore v. Dunster, 274 P.3d 748, 752 (Mont. 2012); Reynolds v. Tufenkjian, 136 Nev. Adv. Op. 19 (2020).

While a Judgment Creditor may not levy and execute upon these types of claims, a Judgment Creditor may use proceedings supplementary to request the Court to craft alternative relief: awarding the Judgment Creditor an equitable lien on the Judgment Debtor’s potential recovery. Although section 56.29 does not contain a specific provision addressing a Judgment Creditor’s right to an equitable lien on a Judgment Debtor’s claim, 56.29(6) states: The court may enter any orders, judgments, or writs required to carry out the purpose of this section, …”.

Cases in Florida have already determined that a judgment creditor may obtain an equitable lien on a Judgment Debtor’s homestead property. Zureikat v. Shaibani, 944 So. 2d 1019, 1022 (Fla. 5th DCA 2006); Whigham v. Muehl, 511 So. 2d 717, 718 (Fla. 1st DCA 1987). Moreover, the case law interpreting section 56.29 states that Proceedings Supplementary “are equitable in nature and should be liberally construed” to provide the broadest relief to the creditor. Ferguson v. State Exchange Bank, 264 So.2d 867, 868 (Fla. 1st DCA 1972); Regent Bank v. Woodcox, 636 So.2d 885, 886 (Fla. 4th DCA 1994). Trial courts also have discretion in crafting appropriate relief for the benefit of the creditor. Myd Marine Distrib., Inc. v. Int’l Paint Ltd., 201 So. 3d 843, 844 (Fla. 4th DCA 2016). Thus a Judgment Creditor’s argument for an equitable lien on the proceeds of a lawsuit for a personal tort stands on solid ground. Other states have recognized similar concepts. See, e.g., Blackmore v. Dunster, 274 P.3d 748, 752 (Mont. 2012) (“Blackmore could petition the court to assign to Blackmore any proceeds from Dunster’s tort action in satisfaction of the judgment debt.”).

Once the Court awards the equitable lien, similarly to an attorney’s charging lien, the Judgment Creditor must file the lien in the docket of the Judgment Debtor’s lawsuit to provide notice to the Court presiding over the Judgment Debtor’s lawsuit as well as the third party of the Judgment Creditor’s interest in the potential recovery. In contrast to the Judgment Creditor’s seizure of the claim, the filing of an equitable lien leaves the management of the claim, including the discretion on settlement decisions, with the Judgment Debtor. The Judgment Debtor also retains the obligation to fund the litigation. A potential drawback is that these factors, combined with the fact that some, most or all of the recovery will flow to the Judgment Creditor may result in the Judgment Debtor losing interest in pursuing the claim, and/or abandoning it entirely.

A potential alternative to the equitable lien would be to monitor the lawsuit, and to timely serve a writ of garnishment upon the third party after the verdict. However, this has the drawback of increased administrative costs due to the need to constantly monitor proceedings, the need to coordinate with a potentially a third party who has nothing to gain by such cooperation and whose interests are still adverse to the Judgment Creditor and the need to time the writ of garnishment (with potential service requirement issues as the writ must be served on the third party, not its attorney in the case).

 

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