LaGuardia Associates, L.P.

1Trans. 3.
2At the hearing, LodgeNet stated that postpetition charges (excepting the current bill) had
been paid. 	Trans. 3. 	Because its motion for relief from stay is premised on a failure to make
postpetition payments (Motion, ¶¶ 55-56), that admission moots that request. 	It also moots
LodgeNet’s administrative payment request .
IN THE U NITED S TATES B ANKRUPTCY C OURT
F OR THE E ASTERN D ISTRICT OF P ENNSYLVANIA
IN RE: 	:
:
LAGUARDIA ASSOCIATES, L.P. ET AL 	: 	CASE NO . 04-34512
:
D EBTORS 	: 	C HAPTER 11
OPINION
By: 	STEPHEN RASLAVICH , UNITED STATES BANKRUPTCY JUDGE .
Introduction
LodgeNet Entertainment Corporation (LodgeNet) has filed a Motion for Turnover
of Trust Funds, to Compel Assumption or Rejection of an Executory Contract, for
Payment of Administrative Expenses, and for Relief from Stay. Debtors oppose the
motion. After a hearing was held on April 7, 2005, the matter was taken under
advisement. For the reasons set forth below, the Motion will be denied.
Factual Background
The parties stipulated that LodgeNet provides the Debtors with pay per view
services in its hotel rooms; that the fee which the Debtors charge a guest for such
service appears separately on the guest’s bill at checkout; that Debtors remit such fees
to LodgeNet as required by the contract; and that LodgeNet is owed roughly $37,0001 in
prepetition fees. 2 Despite the timing of this debt, LodgeNet maintains that it may collect
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2
that debt now because the proceeds were to be held in trust for it. Debtors dispute any
such claim and maintains that they and LodgeNet had nothing more than a debtor-
creditor relationship.
Turnover of Trust Funds
LodgeNet’s right to immediate payment of the prepetition fees turns on whether
such fees belong to it and are, therefore, excluded from this bankruptcy estate. Section
541(a)(1) of the Bankruptcy Code provides that upon the filing of a bankruptcy petition,
an estate is created which consists of "all legal and equitable interests of the debtor in
property as of the commencement of the case" except as provided in section 541(b) and
section 541(c)(2). 11 U.S.C. § 541(a). Subsection 541(d) limits from the estate interests
in which the debtor holds only a legal and not an equitable interest in property:
Property in which the debtor holds, as of the commencement
of the case, only legal title and not an equitable interest …
becomes property of the estate under subsection (a)(1) or
(2) of this section only to the extent of the debtor's legal title
to such property, but not to the extent of any equitable
interest in such property that the debtor does not hold.
11 U.S.C. § 541(d). The leading bankruptcy commentator explains this provision:
Subsection (d) re-emphasizes the provision of section
541(a)(1) that the estate is to be comprised of all legal or
equitable interests of the debtor in property as of [the]
commencement of the case. It also reiterates the general
principle that an interest that is limited in the hands of the
debtor is equally limited in the hands of the estate, and
therefore, where the debtor holds bare legal title without any
equitable interest, the estate acquires bare legal title without
any equitable interest in the property.
5 Collier on Bankruptcy ¶ 541.27 (Matthew Bender 15th Ed. rev. 2001).
Section 541(d) describes a typical trust situation: a trustee holds bare legal title to
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3
property for the benefit of one or more beneficiaries who hold the equitable title or
interest in the trust property. See Official Comm. of Unsecured Creditors v. Columbia
Gas Systems Inc. (In re Columbia Gas Systems Inc.), 997 F.2d 1039, 1059 (3d
Cir.1993). Where the debtor's interest in property is limited to that of trustee, no other
interest (including, the beneficiary's equitable interest) in that property becomes part of
the estate. Id; see also In re Marrs-Winn Co., 103 F.3d 584, 589 (7th Cir. 1990) (“The
Bankruptcy Court’s jurisdiction over the debtor’s property extends only as far as debtors
interest in the property. Accordingly, the Bankruptcy Code embraces the crucial
distinction between a legal interest and an equitable interest in property.”)
Determining the Applicable Law
The parties appear to agree that New York Law controls on the question of
whether a trust exists here; LodgeNet relies on a choice of law provision in the contract.
LodgeNet Brief, 2. For its part, Debtors agree that such is the case. Debtor’s Brief, 2.
Are the parties correct that New York law necessarily applies or is there federal
common law applicable here?
The Third Circuit has explained how § 541(d) is to be applied:
It is axiomatic that federal law governs questions involving
the interpretation of a federal statute. See Kamen v. Kemper
Fin. Services, 500 U.S. 90, ----, 111 S.Ct. 1711, 1717, 114
L.Ed.2d 152 (1991). Therefore, it is clear, and the parties do
not dispute, that federal law defines the parameters of
section 541(d) of the Bankruptcy Code. This, however, is
only the beginning of the inquiry. The determination that
federal law applies does not inevitably require the application
of a uniform federal rule. Applying federal law, courts may
either fashion a uniform federal common law rule or adopt
state law as the federal rule of decision. See id.; United
States v. Kimbell Foods, Inc., 440 U.S. 715, 727-28, 99 S.Ct.
1448, 1458, 59 L.Ed.2d 711 (1979).
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In Kimbell Foods, the Supreme Court outlined the analysis
that determines whether uniform federal common law or
state law should apply. The determination depends on the
nature and importance of the government interest at issue
and the effect of applying state law. Kimbell Foods, 440 U.S.
at 727-28, 99 S.Ct. at 1458. To decide whether a national
federal rule is necessary, courts should consider: (1) the
need for a nationally uniform law; (2) whether incorporation
of state law would frustrate specific objectives of the federal
program at issue; and (3) the extent to which application of a
federal common law rule would upset commercial
expectations that state law would govern. See id. at 728-29,
99 S.Ct. at 1458-59; Adams v. Madison Realty & Dev. Inc.,
937 F.2d 845, 856 (3d Cir.1991). Developing a federal
common law rule is the exception rather than the rule.
Federal law should coincide with the relevant state law
unless state law would undermine the objectives of the
federal statutory scheme and there is a distinct need for
nationwide legal standards. See Kimbell Foods, 440 U.S. at
728, 99 S.Ct. at 1458.
Columbia Gas, 997 F.2d at 1055.
Whether the pay per view charges are held in trust for LodgeNet, and therefore
excluded from the estate, does not implicate an important federal interest such as to
warrant the application of federal common law. There is no need for uniformity here;
the proceeds were not created by federal statute, but rather by contract between private
parties.
Second, applying New York law of trusts frustrates no specific federal purpose.
The sole federal statute involved here is Bankruptcy Code § 541(d). Both that statute
and the New York law regarding trusts are congruent: each recognizes the difference
between legal and equitable title.
Finally, applying federal common law would, in fact, upset commercial
expectations of the parties that state law would govern. The contract specifically
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5
provides that New York law governs the instrument’s interpretation. As there is no
federally created interest in the parties arrangement, they would not expect federal law
to supplant the law of the jurisdiction which they chose as controlling. In sum, the
parties operate from the correct premise in debating whether the relationship constitutes
an express trust as defined by New York law.
The Law of Express
Trusts in New York
Although it never uses the precise term in its brief, LodgeNet asserts the
existence of the four elements of an express trust: a trustee, a beneficiary, a trust res or
corpus, and delivery of the res. LodgeNet Brief, 3. Under New York law, “an express
trust is 'a fiduciary relationship with respect to property, subjecting the person by whom
the title to property is held to equitable duties to deal with the property for the benefit of
another person, which arises as a result of a manifestation of an intention to create it.' "
LFD Operating, Inc. v. Ames Dep't Stores, Inc. (In re Ames Dep't Stores, Inc.), 274 B.R.
600, 623 (Bankr.S.D.N.Y.2002) (quoting Restatement (Second) of Trusts § 2 (1959)),
aff'd, 2004 WL 1948754 (S.D.N.Y.2004). An express trust requires (i) a designated
beneficiary; (ii) a designated trustee who is not the beneficiary; (iii) a fund or other
property sufficiently designated or identified to enable title thereto to pass to the trustee;
and (iv) the actual delivery or legal assignment of the fund or other property to the
trustee with the intention of passing legal title to him or her as trustee. In re Ames Dep't
Stores, Inc., 274 B.R. at 623; accord In re State Street Assoc. LP, 2005 WL 887151 *8
(Bankr.N.D.N.Y.).
When, as here, property of the estate is alleged to be held in trust, the burden
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6
rests upon the claimant to establish the original trust relationship. 5 Collier on
Bankruptcy ¶ 541.11. LodgeNet’s claim that a trust exists is based on specific language
in the parties’ contract. See Motion ¶ 15. Specifically, the contract provides that the
pay per view charges and collections “shall be held in trust for the benefit of LodgeNet.”
Contract, ¶ 6.1. And on a monthly basis the hotels are required to provide a “statement
of the LodgeNet funds held in trust” by them. Id. ¶ 7.2. From this, LodgeNet would
have the Court find that Debtors are the trustee, that LodgeNet is its beneficiary, that
the prepetition fees collected are the res, and that such fees were collected and
delivered to the Debtors qua trustee each time a hotel guest settled its bill. LodgeNet
Brief, 2. That – contract language and nothing else – is the evidentiary basis for
LodgeNet’s contention that a trust relationship exists between the parties.
While the terms of any agreement are probative on the question of trust status,
they do not clinch the matter. As the Second Circuit has explained:
[I]f a ritualistic incantation of trust language were deemed
conclusive where third-party interests are at stake in a
bankruptcy case, it would be a simple matter for one
creditor, at the expense of others, to circumvent the rules
pertaining to the creation of bona fide security interests.
In re Morales Travel Agency, 667 F.2d 1069, 1072 (2d Cir.1981). Therefore, this court
will interpret the parties’ relationship in the context of the substance of that relationship,
not limiting the analysis to the form of the contract to determine the true relationship
between them. Ames Department Stores, 274 B.R at 616.
The Debtors do not specifically state which element of an express trust is absent
here. Instead they emphasize that the contract does not require segregation of the pay
per view proceeds. And because the proceeds were deposited into the Debtors’
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3This is something the parties stipulated to. See LodgeNet Brief, 2, n.2.
7
general operating accounts, 3 that necessarily means that such proceeds were
commingled with other funds. Debtors’ Brief, 3. Implicitly, then, the Debtors dispute
that a trust res, or corpus, was ever established. The importance of such a
circumstance was pointed out by the Court in Ames:
It is firmly established that if a recipient of funds is not
prohibited from using the funds as his own and the recipient
is not prohibited from commingling the funds with his own
monies, a debtor-creditor relationship, not a trust
relationship, exists. Dampskibsselskabet Af 1912
Aktieselskab v. Black & Geddes, Inc. (In re Black & Geddes),
35 B.R. 830, 836 (Bankr.S.D.N.Y.1984); accord Koreag,
Controle et Revision S.A. v. Refco F/X Assocs., Inc. (In re
Koreag, Controle et Revision S.A.), 961 F.2d 341, 353 (2d
Cir.1992) (stating same in discussing elements of a
constructive trust); see also Foothill Capital Corp. v. Clare's
Food Mkt., Inc. (In re Coupon Clearing Serv., Inc.), 113 F.3d
1091, 1101 (9th Cir.1997) (finding better guidance in a series
of cases that do not find a trust where commingling of funds
and payment out of general funds is sufficient);
Superintendent of Ins. v. First Cent. Fin. Corp. (In re First
Cent. Fin. Corp.), 269 B.R. 481, 495 (Bankr.E.D.N.Y.2001)
(observing that the segregation of alleged trust funds is a
factor that courts consider in distinguishing a trust and a debt
in bankruptcy); In re Einhorn, 59 B.R. 179, 184
(Bankr.E.D.N.Y.1986) (finding that crucial factor in
determining whether a trust relationship is created is the duty
to segregate funds); Leased Pet Dep'ts, Inc. v. Cook United,
Inc. (In re Cook United, Inc.), 50 B.R. 559, 561
(Bankr.N.D.Ohio 1985) (finding that an alleged trustee that
commingles funds does not create a trust in a department
store context). These cases are consistent with a trustee's
duty to the beneficiary to keep trust property separate from
the trustee's individual property. See Restatement of Trusts
§§ 179; 179 cmt. b; 180 cmt. c.
In New York, if there is no distinct trust fund but merely a
general obligation to ultimately pay a sum of money, then
there is no trust, but only a debt. See Petition of Travers, 32
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8
N.Y.S.2d 742, 743, 177 Misc. 1044, 1046 (Sup.Ct. Kings
Co.1941); see also Warner-Quinlan, 86 F.2d at 104 ("If there
was no contractual duty to remit the proceeds of sale but
payment out of [debtor's] general funds was sufficient, an
extension of credit [and not a trust] would be established.").
274 B.R. at 623-24. 	And that would prove fatal to the creditor’s claim that funds held by
the debtor in the amount of its receivable were impressed with a trust:
Here, Ames has commingled the Net Sales Proceeds with all
other proceeds from its stores since 1987. It is undisputed
that the Agreement contained no provision that required that
Ames place the Net Sales Proceeds in a segregated bank
account. …Through Ames's cash management system,
Ames used the proceeds from the sale of LFD merchandise
to pay its Secured Lenders by placing those funds in the
Blocked Accounts that were swept by GECC. Ames paid
LFD out of general funds made available by GECC in
Ames's Disbursement Account. The funds made available in
Ames's Disbursement Account are not the same monies
from the sale of LFD merchandise. Ames's Disbursement
Account is a blocked account funded exclusively through
advances provided by GECC. Therefore, the Court finds that
Ames did not hold the Net Sales Proceeds in trust for LFD
because Ames, at all relevant times, has commingled the
Net Sales Proceeds and used the funds between settlement
dates for purposes other than paying LFD, before making
payment to LFD out of general funds provided by GECC.
These facts are dispositive of LFD's trust claim. Hence, the
Court finds that the parties never manifested an intent to
create a true trust mechanism and therefore Ames was not a
fiduciary to LFD.
274 B.R. at 624.
Despite what appears to be the law on this point, LodgeNet disputes the
significance of commingling. Its cites as authority for the contrary position People v.
Valenza, 436 N.Y.S.2d 937 (1981) (holding that while a prohibition against commingling
is a fiduciary duty and generally accepted feature of trusts, it is not an essential
element). That case, however, is simply at odds with the clear weight of authority cited
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4486 F.2d 519 (3d Cir. 1973)
9
above from Ames. And its premise is dubious: the failure to segregate funds inherently
applies to the third element of a trust: the establishment of a trust corpus or res. On this
record, then, LodgeNet has failed to prove that the proceeds from prepetition pay per
view sales are held in an express trust by the Debtors for LodgeNet’s benefit.
Are the Proceeds Impressed
With a Constructive Trust?
While commingling appears irreconcilable with an express trust, that is not
necessarily the case with constructive trusts. And because LodgeNet never specifies
exactly what type of trust it asserts to exist here, the record must be examined to see if
a constructive trust is supported. This is a matter of federal common law. See In re
Edison Bros., Inc., 243 B.R. 231, 235 (Bankr.D.Del. 2000) (“The Third Circuit has clearly
stated that because of [the Supreme Court’s decision in] Kimbell Foods, state law of
constructive trusts must be displaced by a federal common law in cases under section
541(d) [where the state law diverges].”) (citing Columbia Gas, 997 F.2d at 1056) The
Third Circuit recalled in Columbia Gas that it had previously imposed an implied trust on
funds held by a bankruptcy debtor for another entity:
Penn Central4 held that a trust relationship exists when the
parties manifest an intention to create a trust. [citation
omitted]. The parties, however, need not employ any
talismanic language – "failure to expressly designate the
relationship as one of trust does not necessarily negate its
existence." [citation omitted] Absent a document definitively
establishing a trust relationship, we look to the language of
the parties, their conduct, and other circumstances
surrounding the transaction probative of their intent.
997 F.2d at 1060. What does the record show as to the parties’ intent?
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10
In this case, the contract between the parties states that the sales proceeds are
to be held in trust. Contract, ¶ 6.1. But aside from that, the conduct of the parties is
more akin to an arms length transaction. This becomes apparent if we compare this
case to Penn Central and Columbia Gas, cases in which a constructive trust was found
notwithstanding commingling.
The Significance
of Commingling
In Penn Central, railroads that shipped goods traveled over railroad tracks owned
by many different railways. 486 F.2d at 521. To facilitate operations, the shipping
railroad collected the entire charge from the customer, a portion of which it owed to the
other railways whose tracks had been utilized. Id. The railroad industry voluntarily
created a complex system of accounting for these interline revenues and settled the
balances in each interline account monthly. Id. Usually, the commingling of trust funds
with general revenues also indicates a debtor-creditor relationship. The Penn Central
court found, however, that the "[c]ommingling of monies has minimal significance in the
extraordinary operations of interline railroads." Id. at 524. Because it would be highly
inefficient to segregate the numerous collections railroads received, little weight was
accorded to this factor. Id. at 525
Similarly, in Columbia Gas, the debtor was a natural gas middleman who
purchased natural gas from suppliers and resold it to local companies. 997 F.2d at
1051. After the Federal Energy Regulatory Commission determined that gas
companies had been overcharging the public in violation of federal law, it ordered
refunds from the gas companies to consumers. Id. at 1053. Those refunds would have
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to flow through the debtor to its customers. The debtor and various consumer groups
sought to exclude the refunds from the debtor’s estate as trust funds. The creditors
committees opposed that. In finding that the refunds were held in trust for consumers,
the court found that even though the debtor did not maintain separate cash accounts for
customers, it did, however, meticulously track its refund obligations by maintaining over
one hundred separate paper accounts. Id. at 1061. It concurred with the bankruptcy
court which had found that segregating the numerous refunds would be a huge
administrative burden and economically inefficient. Id. Therefore, as in Penn Central,
the debtor’s commingling of trust funds and general revenues had little significance
concerning whether the refunds are held in trust. Id.
The same cannot be said here. The record does not show that it would have
been administratively burdensome for the Debtors to have created a separate account
for pay per view proceeds or that it had many similarly situated vendors. Indeed, if it
meant that much to LodgeNet, then it could easily have ensured early on in their
relationship that a separate account be created for it. That was never done. Here, the
failure to segregate proceeds is probative of a lack of intent to create a trust.
Did the Contract
Provide for Interest?
Another indicia of a trust emphasized in Penn Central was the absence of any
provision for the payment of interest. 486 F.2d at 524. One party permitting another to
use its money for a period of time in exchange for the payment of interest is the
hallmark of a debtor-creditor relationship. Id. Therefore, the absence of interest
payments supported a finding of a trust.
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5The parties appear to agree that the contract at issue is executory.
12
In this case, the contract specifically provides for interest. See Contract, ¶ 7.3
(“Payments not received by the due date shall bear interest at a rate equal to the lesser
of 1.5% per month or the maximum rate allowed by law.”) That is an indication of a
debtor-creditor relationship. Like the commingling, the charging of interest indicates
that the parties indicates that the parties never intended a trust relationship.
The Motion to Compel
Assumption or Rejection
LodgeNet requests an Order compelling the Debtors to either assume or reject
its contract. 5 It relies in this regard on § 365(d)(2) of the Code:
In a case under chapter 9, 11, 12, or 13 of this title, the
trustee may assume or reject an executory contract or
unexpired lease of residential real property or of personal
property of the debtor at any time before the confirmation of
a plan but the court, on the request of any party to such
contract or lease, may order the trustee to determine within a
specified period of time whether to assume or reject such
contract or lease.
11 U.S.C. § 365(d)(2) (emphasis added). The party moving for an order of compulsion
bears the burden of proof. See In re Mayer Pollock Steel Corp., 157 B.R. 952, 964
(Bankr.E.D.Pa.1993). This requires evidence as to "the nature of the interests at stake,
the balance of hurt to the litigants, the good to be achieved, and the safeguards
afforded those litigants." Id. at 965 quoting In re Lionel Corp., 23 B.R. 224, 225
(Bankr.S.D.N.Y.1982). The setting of a “a specified period of time” within which the
debtor or trustee must decide to assume or reject has been understood to mean a
“reasonable” amount of time. 3 Collier, ¶365.04[2][b]. “[Courts] should interpret
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13
reasonable time consistent with the broad purpose of Chapter 11, which is 'to permit
[the] successful rehabilitation of debtors.' " In re Dunes Casino Hotel, 63 B.R. 939, 949
(D.N.J.1986) (quoting NLRB v. Bildisco & Bildisco, 465 U.S. 513, 527, 104 S.Ct. 1188,
1196, 79 L.Ed.2d 482 (1984)). Of course, it is within the court’s discretion, after
weighing these considerations, to deny the motion and allow the debtor to wait until
confirmation to decide whether to assume or reject. Mayer Pollock, 157 B.R at 965.
LodgeNet maintains that it is “entitled to an order requiring the Debtors to
assume or reject its executory contract by a date certain.” Motion, ¶ 48. Yet it has
offered no evidence to demonstrate that. All that the record reflects is that LodgeNet is
owed a $37,000 prepetition receivable; that is the extent of its exposure. The Debtors
have been paying LodgeNet currently postpetition so it is hard to see what additional
harm it is sustaining going forward. If that were to change, then this Court could
reconsider LodgeNet’s request and could do so on an expedited basis. Until then, there
are no evidentiary grounds for this Court to require Debtors to make a final decision
regarding this vendor.
Summary
Neither of LodgeNet’s remaining requests is supported by the record. There is
insufficient evidence to find the existence of a trust relationship. Likewise, LodgeNet
offers no reasons for compelling the Debtors to accept or reject its contract at this
juncture. LodgeNet’s outstanding requests for relief will accordingly be denied.
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An appropriate order follows.
By the Court:
____________________________________
Stephen Raslavich
United States Bankruptcy Judge
Dated: 	May 5, 2005
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IN THE U NITED S TATES B ANKRUPTCY C OURT
F OR THE E ASTERN D ISTRICT OF P ENNSYLVANIA
IN RE: 	:
:
LAGUARDIA ASSOCIATES, L.P. ET AL 	: 	CASE NO . 04-34512
:
D EBTORS 	: 	C HAPTER 11
ORDER
AND NOW upon consideration of the Motion of LodgeNet Entertainment
Corporation for Turnover of Trust Funds, to Compel Assumption or Rejection of an
Executory Contract, for Payment of Administrative Expenses, for Relief from Stay, the
Debtors’ opposition thereto, after a hearing held on April 7, 2005, and for the reasons
stated in the foregoing Opinion, it is
ORDERED that the Motion is Denied.
By the Court:
___________________________________
Stephen Raslavich
United States Bankruptcy Judge
Dated: 	May 5, 2005
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2
MAILING LIST:
George Conway, Esquire
Office Of The U.S. Trustee
950W Curtis Center
7th & Sansom Streets
Philadelphia PA 19106
Martin J. Weis, Esquire
DILWORTH PAXSON, LLP
1735 Market Street, Suite 3200
Philadelphia, PA 19103
William J. Levant, Esquire
KAPLIN STEWART MELOFF REITER
& STEIN, P.C.
350 Sentry Parkway, Bldg 640
P.O. Box 3037
Blue Bell, PA 19422
Ashley Chan, Esquire
HANGLEY ARONCHICK
SEGAL & PUDLIN
One Logan Square, 27 th Floor
Philadelphia, PA 19103
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