816 F.2d 1222

In re OZARK RESTAURANT EQUIPMENT CO., INC. James G. MIXON, Trustee, Appellant, v. Bruce ANDERSON, Elmer Dale Yancey, Kenneth Eads, Robert Whiteley and Anderson Cajun’s Wharf, Appellees, James G. MIXON, Trustee, Appellant, v. ANDERSON CAJUN’S WHARF, Appellee, James G. MIXON, Trustee, Appellant, v. Ed YANCEY, Bruce Anderson and Kenneth Eads, Appellees.

No. 86-1729.

United States Court of Appeals, Eighth Circuit.

Submitted Jan. 16, 1987.

Decided April 14, 1987.

Rehearing and Rehearing En Banc Denied July 6, 1987.

*1223Jill R. Jacoway, Fayetteville, Ark., for appellant.

Raymond C. Smith, Fayetteville, Ark., for appellees.

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

The sole issue in this appeal is whether a Chapter 7 bankruptcy trustee has standing to assert, on behalf of the debtor corporation’s creditors, an alter ego action against the principals of the corporation. The district court1 held in the negative. For the reasons discussed below, we affirm.

I. BACKGROUND.

In September of 1980, Bruce Anderson and Elmer Dale Yancey purchased Ozark Restaurant Equipment Co., Inc. (“Ozark”) of Springdale, Arkansas, the debtor in this case. Both were 50% shareholders and directors of the corporation; Yancey was also an officer. In addition to owning Ozark stock, Anderson owned 50% or more of the stock in a number of other companies with which Ozark did business.2 On August 24, 1982, after an abysmal performance, Ozark filed for relief under Chapter 7 of the Bankruptcy Code.

In October of 1982, the Chapter 7 trustee of Ozark filed three adversary proceedings which were subsequently consolidated for trial before the bankruptcy court. The first proceeding was an alter ego action, which was brought solely by the trustee on behalf of all of Ozark’s creditors3 against the following defendant-principals of Ozark: Anderson; Yancey; Kenneth Eads, director and president of Ozark; Robert Whiteley, a business consultant hired by Anderson to help with Ozark’s finances; and Anderson Cajun’s Wharf, Inc. The trustee alleged, inter alia, that because of the defendant-principals’ abuses of the corporation, the corporate veil should be pierced and the individuals should be held personally liable for Ozark’s debts. The second proceeding was an action by the trustee to recover an unpaid debt from Port City Equipment Company. In the third proceeding, the trustee sought recovery of certain of Ozark’s loan payments to Mcllroy Bank & Trust as preferential transfers. On March 21, 1984, the bankruptcy court ordered judgment in favor of the trustee on all three claims. In re Ozark Restaurant Equipment Co., 41 B.R. 476 (Bankr.W.D.Ark.1984).4 All de*1224fendants except Eads appealed the judgment.5

On May 22,1986, the district court issued an order affirming the bankruptcy court’s judgment with respect to the unpaid debt claim, but reversing the court’s judgment in the alter ego action. In re Ozark Restaurant Equipment Co., 61 B.R. 750 (W.D.Ark.1986).6 Regarding the alter ego claim, the court, relying heavily on Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972), determined that a Chapter 7 trustee has no standing on his own to bring an alter ego action on behalf of the debtor corporation’s creditors. Id. at 757. The court, however, remanded the case for consideration of whether the business actions which caused the bankruptcy court to pierce the corporate veil constituted transfers within the meaning of the Code and were therefore possibly recoverable by the trustee under 11 U.S.C. §§ 547 or 548 (preferences or fraudulent transfers). Id. Ozark’s trustee subsequently appealed, arguing that a Chapter 7 trustee does have standing to bring an alter ego claim on behalf of the debtor corporation’s creditors.

II. DISCUSSION.

Although acknowledging that the district court had the right to raise the standing question, the trustee argues that the court’s holding was incorrect as a matter of law. The trustee maintains that a Chapter 7 trustee has standing to assert an alter ego claim on behalf of the unsecured creditors of the debtor corporation based on three different areas of the Bankruptcy Code: (1) 11 U.S.C. § 544; (2) 11 U.S.C. §§ 704 and 541; and (3) 11 U.S.C. § 105 and general equitable principles running throughout the Code. We begin by addressing the trustee’s second argument.

A. 11 U.S.C. §§ 704 and 541.

Section 704 of the Code outlines the duties of a Chapter 7 trustee and requires the trustee to “collect and reduce to money the property of the estate for which the trustee serves * * 11 U.S.C. § 704(1) (emphasis added). Section 541 defines “property of the estate” and for our purposes, the relevant subsection is 541(a)(1), which defines property of the estate as “all legal or equitable interests of the debtor in property as of the commencement of the case.” Id. § 541(a)(1). In arguing that Section 704 permits a Chapter 7 trustee to pursue an alter ego theory cause of action to pierce the corporate veil on behalf of the creditors of the debtor corporation, the trustee failed to acknowledge the key limiting language in Section 541(a)(1) — property of the estate comprises only “legal and equitable interests of the debtor.” Id. (emphasis added). Upon further examination of Sections 704 and 541 and the nature of the alter ego action, it becomes apparent that the trustee’s standing argument based on these two sections must fail.

*1225First, it is clear that causes of action belonging to the debtor at the commencement of the case are included within the definition of property of the estate. E.g., 4 Collier on Bankruptcy ¶ 541.10[1], at 541-62 (15th ed. 1986). Any of these actions that are unresolved at the time of filing then pass to the trustee as representative of the estate, who has the responsibility under Section 704(1) of asserting them whenever necessary for collection or preservation of the estate. Id. ¶ 704.02, at 704-6 to -7. For example, these sections give the trustee authority to bring an action for damages on behalf of a debtor corporation against corporate principals for alleged misconduct, mismanagement, or breach of fiduciary duty, because these claims could have been asserted by the debtor corporation, or by its stockholders in a derivative action. See, e.g., Pepper v. Litton, 308 U.S. 295, 307, 60 S.Ct. 238, 245, 84 L.Ed. 281 (1939) (interpreting section 70a(6) of the old Bankruptcy Act, a predecessor of Sections 541(a)(1) and 704(1) of the Code); Koch Refining v. Farmers Union Central Exchange, Inc., 56 B.R. 242, 243 (N.D.Ill.1985); 4 Collier on Bankruptcy, supra, 11541.10[8], at 541-69; see also Henderson v. Rounds & Porter Lumber Co., 99 F.Supp. 376, 380 (W.D.Ark.1951) (quoting with approval 4A Collier on Bankruptcy II 70.29, at 429-33 (14th ed. 1978)). Accordingly, whenever a cause of action “belongs” to the debtor corporation, the trustee has the authority to pursue it in bankruptcy proceedings.

Where, however, “the applicable state law makes such obligations or liabilities run to the corporate creditors personally, rather than to the corporation, such rights of action are not assets of the estate under Section 541(a) that are enforceable by the trustee [under Section 704(1)].” 4 Collier on Bankruptcy, supra, II 541.10[8], at 541-69 to 541-70; accord Henderson, 99 F.Supp. at 380 (quoting the 1978 edition of Collier on Bankruptcy); In re Green Valley Seeds, Inc., 27 B.R. 34, 36 (Bankr.D. Ore.1982); see In re S I Acquisition, Inc., 58 B.R. 454, 461, 462 (Bankr.W.D.Tex. 1986). In this respect, we recognize that “[generally, the corporate veil is never

pierced for the benefit of the corporation or its stockholders[.]” 18 Am.Jur.2d Corporations § 46 (1985); accord In re SI Acquisition, 58 B.R. at 460; but see 1 Fletcher Cyclopedia on the Law of Private Corporations § 41, at 388 (1983) (hereinafter “Fletcher Cyclopedia”). This general statement of the law is followed in Arkansas, where the courts have held that “[a] corporate entity is to be disregarded only if the corporate structure is illegally or fraudulently abused to the detriment of a third person.” Thomas v. Southside Contractors, Inc., 260 Ark. 694, 543 S.W.2d 917, 919 (1976) (emphasis added) (citing Rounds & Porter Lumber Co. v. Burns, 216 Ark. 288, 225 S.W.2d 1 (1949)). Thus, the obligations and liabilities of an action to pierce the corporate veil in Arkansas do not run to the corporation, but to third parties, e.g., creditors of the corporation.

Further, although an action to pierce the corporate veil may be brought under a number of different theories, the “alter ego doctrine” of piercing the corporate veil

fastens liability on the individual who uses a corporation merely as an instrumentality to conduct his own personal business, and such liability arises from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation. [Footnote omitted.] The corporate form may be disregarded only ivhere equity requires the action to assist a third party. [Footnote omitted.] Accordingly, a sole shareholder may not choose to ignore the corporate entity when it suits his convenience. [Footnote omitted.]

1 Fletcher Cyclopedia, supra, § 41.10, at 397 (emphasis added).

Because the corporate entity will be disregarded under Arkansas law only if it has been abused to the detriment of a third person, and because the nature of the alter ego theory of piercing the corporate veil makes it one personal to the corporate creditors rather than the corporation itself, it is axiomatic that the claim does not become property of the estate under Section 541(a)(1), nor is it enforceable by the trustee under Section 704(1). Accordingly, we *1226conclude that the trustee here does not have standing under these sections to bring an alter ego action on behalf of Ozark’s creditors.7

B. 11 U.S.C. § 544.

The trustee’s principal argument in this case is based on Section 544 of the Code, 11 U.S.C. § 544.8 The trustee maintains that Section 544(a), the “strong-arm clause”, enables the trustee to pursue an alter ego action in his creditor’s capacity, because that section gives the trustee the rights and powers of a creditor who could have obtained a judicial lien, whether or not such a creditor exists. See 11 U.S.C. § 544(a)(1). Additionally, the trustee maintains that Section 544(b), which allows a trustee to avoid certain transfers of the debtor that are voidable under applicable law by a creditor holding an unsecured claim, see id. § 544(b), also gives the trustee standing to pursue an alter ego action for the benefit of all creditors.

Admittedly, a trustee’s rights and powers under Section 544 are extensive. We do not believe, however, that they encompass the ability to litigate claims, such as the instant alter ego cause of action, on behalf of the debtor corporation’s creditors. A careful reading of Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972), supports this conclusion, as recognized by the district court.

In Caplin, the Supreme Court held that a reorganization trustee lacked standing under the old Bankruptcy Act to assert, on behalf of the bankrupt corporation’s creditors (debenture holders), claims of misconduct against a third party (the indenture trustee). Id. at 434, 92 S.Ct. at 1688. Having recognized that the Bankruptcy Act itself contained no provisions authorizing the trustee to so act, the Court proceeded to analyze the issue in terms of “the nature of [reorganization] proceedings, the role of the trustee in reorganization, and the way in which standing to sue on behalf of debenture holders would affect or change that role.” Id. at 422, 92 S.Ct. at 1682. After discussing these criteria, id. at 422-27, 92 S.Ct. at 1682-85, the Court determined that three reasons militated against allowing the trustee to have standing.

*1227First, the Court found that nowhere in the statutory reorganization scheme was there any suggestion that the trustee should “assume the responsibility of suing third parties on behalf of debenture holders.” Id. at 428, 92 S.Ct. at 1685. The Court noted that under 11 U.S.C. § 567(3) of the Bankruptcy Act, the trustee had a duty to investigate potential causes of action of the estate, but that nothing in that section enabled the trustee to collect money not owed to the estate. Id. Further, the Court noted that 11 U.S.C. § 110 of the Act (the relevant parts of which are now embodied in Sections 541 and 544 of the Code, 11 U.S.C. §§ 541, 544) did not give the trustee this authority, id., but rather, “[the trustee’s] task is simply to ‘collect and reduce to money the property of the estates for which [he serves].’ ” Id. at 428-29, 92 S.Ct. at 1685 (quoting 11 U.S.C. § 75(a)(1) of the Act, now Section 704(1) of the Code, 11 U.S.C. § 704(1)). Second, the Court noted that the bankrupt corporation had no claim against the indenture trustee, and that at the most, the trustee’s claims of misconduct involved a situation where the corporation and the indenture trustee were in pari delicto. Id. at 430, 92 S.Ct. at 1686. The Court thus expressed concern over whether the indenture trustee would be subrogated to the claims of the creditors. Id. Third, the Court was concerned that “a suit by [the trustee] on behalf of debenture holders may be inconsistent with any independent actions that they might bring themselves.” Id. at 431-32, 92 S.Ct. at 1687. The Court noted that the trustee’s action would not preempt suits by the individual creditors, and that such suits would be likely because it would be “extremely doubtful that the trustee and all debenture holders would agree on the amount of damages to seek, or even on the theory on which to sue.” Id. at 432, 92 S.Ct. at 1687. Relatedly, the Court expressed concern over who would be bound by the settlement obtained by the trustee. Id.

Although the Court concluded that the above reasons required a finding against the trustee, the Court expressly invited Congress to decide differently:

Congress might well decide that reorganizations have not fared badly in the 34 years since [the reorganization chapter] was enacted and that the status quo is preferable to inviting new problems by making changes in the system. Or, Congress could determine that the trustee in a reorganization was so well situated for bringing suits against indenture trustees that he should be permitted to do so. In this event, Congress might also determine that the trustee’s action was exclusive, or that it should be brought as a class action on behalf of debenture holders, or perhaps even that the debenture holders should have the option of suing on their own or having the trustee sue on their behalf. Any number of alternatives are available. Congress would also be able to answer questions regarding subrogation or timing of law suits before these questions arise in the context of litigation. Whatever the decision, it is one that only Congress can make.

Id. at 434-35, 92 S.Ct. at 1688. Congress, however, declined to accept the invitation.

In 1978, six years after Caplin was decided, Congress overhauled the bankruptcy laws when it enacted the Bankruptcy Code. As part of the revision, Congress consolidated former sections 70c and 70e of the Act (11 U.S.C. §§ 110(c), (e) of former title 11) into Sections 544(a) and (b) of the Code, respectively, which apply to both reorganization and liquidation trustees. Although Section 544 clarified and expanded the trustee’s role with respect to creditors, in no way was it changed to authorize the trustee to bring suits on behalf of the estate’s creditors against third parties. In fact, the legislative history suggests just the opposite.

As originally proposed by the House, Section 544 was to contain a subsection (c), which was intended to overrule Caplin.9 It is extremely noteworthy, how*1228ever, that this provision was deleted before promulgation of the final version of Section 544.10 Because subsection (c), as a part of Section 544, would have applied to both reorganization and liquidation trustees, and because Congress refused to enact subsection (c), we believe Congress’ message is clear — no trustee, whether a reorganization trustee as in Caplin or a liquidation trustee as in the present case, has power under Section 544 of the Code to assert general causes of action, such as the alter ego claim, on behalf of the bankrupt estate’s creditors. Further, although we believe congressional intent is clear and is thus determinative of the issue, because Caplin is still good law and is the only Supreme Court case to address the standing question, albeit in a reorganization setting, we feel obliged to address how the Court’s concerns in that case apply to the case at bar.

First, just as there was nothing in the statutory reorganization scheme of the old Bankruptcy Act authorizing the trustee to collect money not owed to the estate, see Caplin, 406 U.S. at 428-29, 92 S.Ct. at 1685-86, similarly, there is nothing in Section 544 or the liquidation framework of the Code authorizing a Chapter 7 trustee to collect money not owed to the estate. Rather, the Chapter 7 trustee’s sole relevant duty regarding collection of money is under Sec*1229tion 704(1), and is geared to Section 541(a)(1), requiring the trustee to collect and reduce to money, among other things, the legal and equitable interests of the debtor. See 11 U.S.C. §§ 704(1), 541(a)(1). As already discussed, see Part A, supra, and as recognized by the district court, the alter ego action fails to meet this ontological test. In re Ozark, 61 B.R. at 754-57; accord In re S I Acquisition, Inc., 58 B.R. 454, 461 (Bankr.W.D.Tex.1986); see Stodd v. Goldberger, 73 Cal.App.3d 827, 141 Cal. Rptr. 67, 72-73 (1977) (same result under Bankruptcy Act).

Moreover, contrary to the trustee’s suggestion, we do not believe that Section 544 in its present form grants the trustee this right. First, as discussed above, in declining to explicitly authorize such standing in the wake of Caplin, it is difficult to ascertain hpw congressional intent could be stronger. Second, to argue that Section 544 in its present form grants the trustee this power is, we believe, to misconstrue the section’s intended application. Although Sections 544(a) and (b) are admittedly broader than their predecessors, the substantive changes do not in any way suggest that the trustee was given the additional power to bring general causes of action on behalf of the estate’s creditors.11 In this vein, we note that Sections 544(a) and (b) are flavored with the notion of the trustee having the power to avoid “transfers” of the debtor, as were its predecessors, sections 70c and e of the Act. Further, it does not appear that Section 544 should be interpreted in a vacuum separate and apart from other relevant sections of the Code. As discussed by a noted author, Section 544 gives the trustee the power to avoid transfers of, or liens and encumbrances on, the debtor’s property that he would be unable to challenge under other sections of the Code, such as 11 U.S.C. §§ 547 (preferences), 548 (fraudulent transfers or obligations), or 549 (post-petition transfers). 4 Collier on Bankruptcy ¶ 544.-01, at 544-2 (15th ed. 1986). An alter ego action, however, does not entail invalidating of a transfer of interest, but instead imputes the obligations of one party to another regardless of any “transfers.”

In summary, nowhere in Sections 544(a) or (b),12 nor in other relevant provisions of *1230the Code is there any suggestion that the trustee has been given the authority to collect money not owed to the estate.

Second, although there are no in pari delicto or subrogation concerns in this case, the third concern of Caplin — the trustee’s suit would not preempt similar suits by other creditors of the corporation — is equally applicable to this case. If the trustee in the instant case was allowed to pursue and recover on the alter ego cause of action on behalf of Ozark’s creditors, there obviously would be questions as to which creditors were bound by the settlement. See Caplin, 406 U.S. at 432 & n. 22, 92 S.Ct. at 1687 & n. 22.13 This is because the trustee is not the real party in interest, and thus does not have the power to bind the creditors to any judgment reached in the litigation. See, e.g., Clarke v. Chase National Bank, 137 F.2d 797, 800 (2d Cir.1943); In re D.H. Overmyer Telecasting Co., Inc., 56 B.R. 657, 662-63 (Bankr.N.D.Ohio 1986).

In conclusion, based on congressional intent, as evidenced by the failure to expressly give the trustee standing to bring creditors’ causes of action, and based on the concerns in Caplin, two of which directly apply to this case, we hold that the Chapter 7 trustee in this case does not have standing under Section 544 of the Code to bring an alter ego cause of action on behalf of the debtor corporation’s creditors.

C. 11 U.S.C. § 105 and Equitable Principles.

It is true that Section 105 allows a bankruptcy court to apply equitable principles that are necessary or appropriate in a particular case to carry out the provisions of the Code. See 11 U.S.C. § 105. These powers, however, do not include the ability to award equitable relief where the party asserting the cause of action for such relief does not have standing under any other section of the Code. Cf. Johnson v. First National Bank of Montevideo, 719 F.2d 270, 273 (8th Cir.1983) (bankruptcy court’s equitable powers may only be exercised in a manner consistent with the provisions of the Code), cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984). Because no provision of the Code gives the trustee in this case standing to assert the alter ego claim, any equitable relief must be denied. Although this result may seem harsh in light of the bankruptcy court’s clear findings that the corporate structure was abused, an opposite result would contradict the Code’s directives.

*1231III. CONCLUSION.

Because the Code does not give the Chapter 7 trustee in this case standing to bring an alter ego action on behalf of the debtor corporation’s creditors, the district court’s order is affirmed.

Mixon v. Anderson (In re Ozark Restaurant Equipment Co.)
816 F.2d 1222

Case Details

Name
Mixon v. Anderson (In re Ozark Restaurant Equipment Co.)
Decision Date
Apr 14, 1987
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816 F.2d 1222

Jurisdiction
United States

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