FEDERMAN, Bankruptcy Judge.
Randall L. Seaver, Chapter 7 Trustee in the bankruptcy case of Top Hat 430, Inc., filed suit against Pennie Glasser, seeking to recover from her, as a preference, a payment made by the Debtor to her. Since the payment was made more than ninety days, but less than one year, prior to its filing bankruptcy, the Trustee can only prevail if Ms. Glasser is found to have been an insider of the Debtor at the time of payment. Ms. Glasser is the former wife of an insider of the Debtor, as well as a minor investor and employee of the Debtor at the time of payment. The Bankruptcy Court
Top Hat, Inc., was founded in 2004 by David Pomije, Sr. and Duane Wermerskirchen, and operated under the name of "Be Iced Jewelers." Pennie Glasser and her current husband, David Glasser, were stockholders of Top Hat, Inc., owning approximately 2.1% of the company's stock.
Top Hat 430, Inc. the Debtor in this case, operated retail jewelry stores, buying and selling new and used jewelry, precious metals, and gemstones. In 2012, Top Hat 430 merged with Top Hat, Inc., with Top Hat 430 (the "Debtor") emerging as the surviving entity. Mr. Pomije was the president of the Debtor and had control over its operations.
Pennie Glasser and Mr. Pomije had been married from December 1985 through February 1997, prior to the formation of the Debtor. They share three children, all of whom are grown. During the marriage, Ms. Glasser worked at two companies founded by Mr. Pomije, namely, Protectronics, Inc. and Funco, Inc. After the marriage ended, Ms. Glasser continued to work for other companies founded by Mr. Pomije, including 2nd Swing, Inc. and the Debtor. The couple's son also worked for the Debtor. Ms. Glasser testified that, due to Mr. Pomije's past successes, she had confidence in him as a business person.
In March of 2011, which was before Ms. Glasser went to work for the Debtor, Mr. Pomije approached the Glassers (among other potential lenders) regarding a bridge loan for the Debtor. The bridge loans were intended to be short term loans which would be repaid from a new capital infusion, for which Mr. Pomije would seek investors. David Glasser negotiated the terms of the Glassers' loan with Mr. Pomije. As a result of those negotiations, on March 31, 2011, Mr. Pomije signed, on behalf of the Debtor, a promissory note in favor of the Glassers in the amount of $200,000. The terms of the note provided for repayment of the $200,000 principal within 90 days without interest, a $10,000 origination fee, and a 20% interest rate if default occurred. Mr. Pomije personally guaranteed the note. Shortly after this loan was made, Ms. Glasser went to work sorting jewelry at the corporate office for the Debtor. Ms. Glasser testified she went to work at the Debtor because she wanted to "get out of the house."
Several other people also made bridge loans to the Debtor. There is no evidence that the Debtor repaid the principal on any of those loans within 90 days. However, it did make interest payments, including $36,555.55 to the Glassers, from the middle of 2011 through early 2012. Meanwhile, Mr. Pomije was working on raising capital to repay the bridge loans and operate the company. As part of those efforts, in November 2011, the Debtor issued a Private Placement Memorandum ("PPM") intending to raise $8 million in capital. The PPM described the lenders and terms of the bridge loans, and provided that $1.3 million of the capital raised would be used to pay bridge loans. As a result of the PPM, the Debtor raised $4 million in capital on or about April 13, 2012.
Less than a year later, on February 12, 2013, the Debtor filed a Chapter 11 bankruptcy case. The case was converted to Chapter 7 on March 25, 2013, and the Chapter 7 Trustee filed an adversary proceeding against Ms. Glasser for recovery of the payment as a preference, asserting that she was a non-statutory insider, and so the one-year lookback period in § 547(b)(4) applied. Mr. Glasser was not named as a defendant in the preference action.
Following a trial, the Bankruptcy Court entered judgment in favor of Ms. Glasser, finding that, although the transaction was not at arm's length, she was not an insider. The Trustee appeals. And, although Ms. Glasser prevailed as to the outcome, she cross-appeals the conclusion that the transaction was not at arm's length.
STANDARD OF REVIEW
Generally speaking, we review findings of fact for clear error and conclusions of law de novo.
Section 547(b) of the Bankruptcy Code provides that a trustee may avoid the transfer of an interest of the debtor in property —
provided by the provisions of this title.
Section 513.45(b) of the Minnesota Statutes, on which the Trustee also relied, provides:
In order for the Trustee to prevail under either statute, the Trustee was required to prove that Ms. Glasser was an insider of the Debtor, which is the sole issue presented in this appeal.
As relevant here, the term "insider" is defined in § 101(31)(B) of the Bankruptcy Code:
Minnesota's definition of "insider" is nearly identical,
The parties agree that Ms. Glasser does not fall within any of the statutorily defined categories of insiders with respect to the Debtor, but the list of insiders in § 101(31) "is illustrative, not exclusive," and so we must look beyond the statutory categories to determine if Ms. Glasser is an insider of the Debtor.
The legislative history emphasizes the closeness of the relationship in making this determination: "[A]n insider is one who has a sufficiently close relationship with the debtor that [her] conduct is made subject to closer scrutiny than those dealing at arm's length with the debtor."
As some other courts have done,
In determining closeness, the degree of control a defendant had over the debtor is certainly relevant. As stated, however, the parties agree that Ms. Glasser was not "in control of the Debtor," and is thereby not a statutory insider. But at some point, if any measure of control were proven, that would be a factor in evaluating the closeness of the relationship with the Debtor.
Here, the Trustee argues that since Ms. Glasser worked in the Debtor's warehouse, she had some control over its operations. But being an employee proves nothing, since there was no evidence that she had anything at all to do with any operational decisions. We agree that the Bankruptcy Court correctly found that the Trustee failed to prove that Ms. Glasser had any measure of control over the Debtor's operations.
As to closeness — the ultimate determination here — the Trustee points to several other aspects of Ms. Glasser's relationship with the Debtor (via Mr. Pomije). First, the Trustee points out that she was his ex-spouse, and that they had three children. But they had been divorced for more than fifteen years at the time of payment, and the three children were grown. Next, the Trustee points out that Ms. Glasser (and her husband) made the loan to the Debtor without receiving its financial records. But, as Ms. Glasser testified, she and her husband made the loan due to her past relationship with Mr. Pomije, because she had confidence based on his past successes. And, the Glassers both testified that they consulted with their accountant and financial manager about the loan.
Next, the Trustee points out that the Glassers got a personal guaranty from Mr. Pomije while other bridge lenders did not. But the loans to the various bridge lenders all had different terms. For example, several of the lenders were given warrants (options to purchase stock in the future for a set price), and the right to payment of interest, at various rates, during the first 90 days of the loan. The Glassers instead opted for a personal guaranty and charged an origination fee rather than interest for the 90-day repayment period. While the Glassers were given a default interest rate of 20%, slightly higher than some of the others, that is hardly sufficient to prove a less than arm's length negotiation. The Trustee failed to prove that there was anything untoward about Mr. Glasser's efforts to negotiate the best deal for him and his wife. The fact that they negotiated slightly different terms proves nothing.
And, finally, the Trustee argues that the fact that Ms. Glasser was repaid means that she was sufficiently close to Mr. Pomije to be treated as an insider. But that would make an insider of anyone who gets paid within a year prior to bankruptcy. Ultimately, the Trustee argues that while no one part of their relationship proves sufficient closeness, the various ways in which their lives intersect create a close enough relationship to make Ms. Glasser an insider. The Court correctly disagreed, holding that the Trustee failed to prove that Ms. Glasser had any measure of control other than as a creditor to whom payment was due, or that she had a sufficiently close relationship with Mr. Pomije to merit insider status.
Up to this point, this appeal seems relatively straightforward. However, the Bankruptcy Court also found that the original loan from the Glassers to the Debtor was not made at arm's length. As seen, the evidence was that Mr. Glasser negotiated the terms of the loan, as did five other lenders in the same set of bridge loans.
More importantly, the Court did not find that the repayment of the loan was at less than arm's length. We think it significant that the PPM expressly stated that $1.3 million of the funds raised would be used to repay bridge loans. Of course, some of the bridge loans were not repaid from the initial capital infusion, but it is also significant that all of the bridge loans which had been made at the same time as the Glassers' and which were not paid, had both warrants and lower interest rates. As a result, it made good business sense for the Debtor to repay the Glassers. In sum, the Trustee failed to prove that Ms. Glasser was an insider simply because her husband negotiated the best deal he could get, or because the obligation to her was repaid.
After considering the statute, the legislative history, and after weighing the factors we considered in Rosen Auto, the Bankruptcy Court found that Ms. Glasser did not have sufficient closeness to be treated as an insider. Since we agree with this ultimate conclusion, we AFFIRM.