Novak v. Univ. of Miami (In re Demitrus), CASE No. 15–22081 (JJT)

586 B.R. 88

IN RE: Katalin DEMITRUS, Debtor.

Anthony S. Novak, Chapter 7 Trustee, Plaintiff

v.University of Miami, Defendant.

CASE No. 15–22081 (JJT)

ADV. PRO. No. 17–02036 (JJT)

United States Bankruptcy Court, D. Connecticut, Hartford Division.

Signed February 27, 2018

Jeffrey Hellman, Esq., Law Offices of Jeffrey Hellman, LLC, New Haven, CT, Counsel for the Plaintiff

Ilan Markus, Esq., Daniel P. Elliott, Esq., LeClairRyan, P.C., New Haven, CT, Counsel for the Defendant

MEMORANDUM OF DECISION ON DEFENDANT's MOTION TO DISMISS

RE: ECF No. 19, 24, 25

James J. Tancredi, United States Bankruptcy Judge

I. INTRODUCTION

Pending before this Court is a Motion to Dismiss (ECF No. 19) filed by the Defendant, University of Miami ("Defendant" or "University"), the Memorandum of Law in Opposition to the Motion to Dismiss ("Opposition", ECF No. 24), filed by the Plaintiff, the Chapter 7 Trustee ("Trustee"), and the related Reply Brief (ECF No. 25). For the reasons stated herein, the Court grants the Motion to Dismiss.

II. JURISDICTION

This Court has jurisdiction under 28 U.S.C. §§ 157 and 1334(b) and may hear and determine this matter on reference from the District Court pursuant to 28 U.S.C. §§ 157(a) and (b)(1). This is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A), (B), (E), (H) and (O). The parties herein have consented to this Court's jurisdiction to enter final orders in this Adversary Proceeding. See ECF Nos. 30 and 31.

III. FACTUAL BACKGROUND

On December 1, 2015, the Debtor, Katalin Demitrus, filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. On July 19, 2017, the Trustee initiated this Adversary Proceeding against the University and asserted the following causes of action: (1) Constructive Fraudulent Transfer, pursuant to 11 U.S.C. §§ 548(a)(1)(B), 550 and 551 ; and (2) UFTA Constructive Fraudulent Transfer, pursuant to 11 U.S.C. § 544(b)(1) and Conn. Gen. Stat. §§ 52–552e(a)(2) and 52–552f(a) ("CUFTA"). On November 28, 2017, the Trustee filed the instant Amended Complaint which, with the exception of one paragraph, is a mirror image of the original Complaint.

On December 7, 2017, the University filed the Motion to Dismiss and accompanying Memorandum of Law. On January 12, 2018, the Trustee filed the Opposition. On January 19, 2018, the University filed a reply. On February 12, 2018, both parties appeared and presented oral arguments before the Court. Following the hearing, the matter was taken under advisement.

In his Complaint, the Trustee alleges that the Debtor is the parent of Alexander N. Demitrus who, at all relevant times, was over the age of 18 years.¹ He alleges that between September of 2013 to October of 2014, when Alexander was a student at the University, the Debtor made a number of transfers to the University by means of a Federal Direct Parent PLUS loan ("Parent PLUS Loan") to pay for Alexander's tuition. The Trustee claims that these payments constitute constructive fraudulent transfers, pursuant to the Bankruptcy Code and CUFTA. He seeks that the total of $66,616.00 be avoided and/or set aside and recovered for the benefit of the Debtor's estate.

IV. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure, made applicable herein by Rule 7012(b) of the Federal Rules of Bankruptcy Procedure, permits a party to move to dismiss a case for "failure to state a claim upon which relief can be granted." The Supreme Court has stated, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). A pleading that offers, "labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ) (internal quotations omitted). Instead, a plaintiff must provide enough factual support that, if true, would "raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows the court to eliminate actions that are fatally flawed in their legal premise and destined to fail, and thus "streamlines litigation by dispensing with needless discovery and factfinding." See Neitzke v. Williams , 490 U.S. 319, 326–27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ("[I]f as a matter of law it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations, a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one") (internal citation and quotations omitted).

V. DISCUSSION

Under Section 548 of the Bankruptcy Code, a transfer may only be avoided under Section 548 if, inter alia , the transferred funds constituted "an interest of the debtor in property."² Likewise, a transfer may only be avoided under Section 544 and CUFTA if, inter alia , the transferred funds constitute "an asset or an interest in an asset of the Debtors."³ The federal and state standards for "property" and "asset" are substantively equivalent.

The Trustee alleges that the "transfers" here consisted of the Parent PLUS Loan payments by the Debtor to the University. Compl. at ¶¶ 14; 23. Whether the Parent PLUS Loan payments constitute property or assets of the Debtor is generally determined by applicable nonbankruptcy law, "unless some federal interest requires a different result." Butner v. U.S. , 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) ; see also Official Committee of Unsecured Creditors v. PSS Steamship Co., Inc. (In re Prudential Lines, Inc.) , 928 F.2d 565, 569 (2d Cir. 1991) ("The nature and extent of the debtor's interest in property is determined by applicable non-bankruptcy law") (citations omitted).

Parent PLUS Loans are governed by a clear federal statutory program: the Higher Education Act of 1965 ( 20 U.S.C. § 1001 et seq. ) (the "HEA"), as well as its implementing regulations ( 34 C.F.R. § 685.100 et seq. ) (the "Regulations"). The Direct PLUS Loan program was established by Congress for the purpose of allowing eligible parents to enable their dependent children to pursue their courses of study in college. See 20 U.S.C. § 1087a(a). Under the Regulations, only "[a]n eligible parent" may borrow under the Direct PLUS Loan program. See 34 C.F.R. § 685.101. Parent PLUS Loans may only be issued "to pay for the student's cost of attendance ..." at "[c]olleges, universities, graduate and professional schools, vocational schools, and proprietary schools ..." See 34 C.F.R. § 685.101(a). "A parent is eligible" if "[t]he parent is borrowing to pay for the educational costs of a dependent undergraduate student ..." See 34 C.F.R. § 685.200(c)(2)(i). The amount of a Parent PLUS Loan is determined based on financial information of the borrowers, the rate of tuition and other costs of attendance at the university; the amount that may be borrowed cannot exceed the amount of tuition and other authorized educational expenses, and the Parent PLUS Loan can only be used for tuition and other qualified educational expenses. See 34 C.F.R. § 682.204(g) and (j).

Under 20 U.S.C. § 1078–2(c), "All loans made under this section shall be ... disbursed by: (1) an electronic transfer of funds from the lender to the eligible institution; or (2) a check copayable to the eligible institution and the graduate or professional student or parent borrower." If a student withdraws from the university, transfers to another university, or otherwise loses his eligibility for the loan, the university is required to pay any refund of tuition to the Department of Education ("DOE") or transfer the funds to the institution to which the student transferred. See 34 C.F.R. § 682.607. The HEA permits the DOE to take enforcement action seeking criminal penalties against any person who obtains PLUS loan funds by fraud or who misapplies such funds. See 20 U.S.C. § 1097(a). The criminal penalties include fines of up to $20,000.00 and imprisonment for up to 5 years, or both. Id.

Here, in regard to the "transfers", the Complaint only alleges that funds were disbursed to the University "by means of a Direct Parent PLUS loan." Compl. at ¶ 14. The HEA and its Regulations make abundantly clear that the funds allegedly disbursed to the University could not possibly have been the Debtor's property, nor could those funds have ever been within the reach of creditors.

In examining the issues raised by the Motion to Dismiss, the Court is persuaded that a recent decision, Eisenberg v. Pennsylvania State University (In re Lewis) , 574 B.R. 536 (Bankr. E.D. Pa. 2017) (Fehling, J.) is dispositive on the issue of whether the proceeds of a Parent PLUS Loan constitute property of the debtor available for the benefit of creditors.⁴ In that case, a Chapter 7 trustee commenced an adversary proceeding against Penn State University seeking the recovery of Parent PLUS Loan proceeds paid to the university. The trustee asserted fraudulent transfer claims pursuant to Section 548, as well as state law. The court dismissed the case on the pleadings, beginning by classifying the trustee's argument as "a relatively new legal theory." Id. at 537. After acknowledging the trustee's burden to prove that the transferred...