Reset B104 (FORM 104) (08/07) Save As Print ADVERSARY PROCEEDING NUMBER ADVERSARY PROCEEDING COVER SHEET (Instructions on Reverse) PLAINTIFFS (Court Use Only) DEFENDANTS Daniel G. Hamm, as Trustee in the Bankruptcy Estate of Allegro Law, LLC. ATTORNEYS (Firm Name, Address, and Telephone No.) Corbett Enterprises, LLC. ATTORNEYS (If Known) Daniel G. Hamm, The Law Office of Daniel G. Hamm, 560 S. McDonough St. Ste. A, Montgomery, AL 36104 PARTY (Check One Box Only) PARTY (Check One Box Only) □ Debtor □ U.S. Trustee/Bankruptcy Admin □ Debtor □ U.S. Trustee/Bankruptcy Admin □ Creditor □ Other □ Creditor □ Other □ Trustee □ Trustee CAUSE OF ACTION (WRITE A BRIEF STATEMENT OF CAUSE OF ACTION, INCLUDING ALL U.S. STATUTES INVOLVED) Complaint to recover fraudulent transfer pursuant to 11 U.S.C. Section 548. NATURE OF SUIT (Number up to five (5) boxes starting with lead cause of action as 1, first alternative cause as 2, second alternative cause as 3, etc.) □ □ □1 □ FRBP 7001(1) – Recovery of Money/Property 11-Recovery of money/property - §542 turnover of property □ FRBP 7001(2) – Validity, Priority or Extent of Lien 21-Validity, priority or extent of lien or other interest in property □ FRBP 7001(3) – Approval of Sale of Property 31-Approval of sale of property of estate and of a co-owner - §363(h) □ FRBP 7001(4) – Objection/Revocation of Discharge 41-Objection / revocation of discharge - §727(c),(d),(e) □ □ FRBP 7001(5) – Revocation of Confirmation 51-Revocation of confirmation □ □ □ □ FRBP 7001(6) – Dischargeability 66-Dischargeability - §523(a)(1),(14),(14A) priority tax claims □ 12-Recovery of money/property - §547 preference 13-Recovery of money/property - §548 fraudulent transfer 14-Recovery of money/property - other □ □ □ □ □ FRBP 7001(6) – Dischargeability (continued) 61-Dischargeability - §523(a)(5), domestic support □ □ 68-Dischargeability - §523(a)(6), willful and malicious injury 63-Dischargeability - §523(a)(8), student loan 64-Dischargeability - §523(a)(15), divorce or separation obligation (other than domestic support) 65-Dischargeability - other FRBP 7001(7) – Injunctive Relief 71-Injunctive relief – imposition of stay 72-Injunctive relief – other FRBP 7001(8) Subordination of Claim or Interest 81-Subordination of claim or interest FRBP 7001(9) Declaratory Judgment 91-Declaratory judgment 62-Dischargeability - §523(a)(2), false pretenses, false representation, actual fraud 67-Dischargeability - §523(a)(4), fraud as fiduciary, embezzlement, larceny (continued next column) FRBP 7001(10) Determination of Removed Action 01-Determination of removed claim or cause □ □ Other SS-SIPA Case – 15 U.S.C. §§78aaa et.seq. 02-Other (e.g. other actions that would have been brought in state court if unrelated to bankruptcy case) □ Check if this case involves a substantive issue of state law □ Check if this is asserted to be a class action under FRCP 23 □ Check if a jury trial is demanded in complaint Other Relief Sought Demand $ 82,473.04 Case 10-30631 Doc 238 Filed 08/31/11 Entered 08/31/11 12:40:18 Document Page 1 of 6 Desc Main B104 (FORM 104) (08/07), Page 2 BANKRUPTCY CASE IN WHICH THIS ADVERSARY PROCEEDING ARISES NAME OF DEBTOR BANKRUPTCY CASE NO. Allegro Law, LLC., 2010-30631-WRS DISTRICT IN WHICH CASE IS PENDING DIVISION OFFICE NAME OF JUDGE Middle District Northern Division Sawyer PLAINTIFF RELATED ADVERSARY PROCEEDING (IF ANY) DEFENDANT DISTRICT IN WHICH ADVERSARY IS PENDING DIVISION OFFICE ADVERSARY PROCEEDING NO. NAME OF JUDGE SIGNATURE OF ATTORNEY (OR PLAINTIFF) /s/ Daniel G. Hamm DATE PRINT NAME OF ATTORNEY (OR PLAINTIFF) August 31, 2011 Daniel G. Hamm INSTRUCTIONS The filing of a bankruptcy case creates an "estate" under the jurisdiction of the bankruptcy court which consists of all of the property of the debtor, wherever that property is located. Because the bankruptcy estate is so extensive and the jurisdiction of the court so broad, there may be lawsuits over the property or property rights of the estate. There also may be lawsuits concerning the debtor’s discharge. If such a lawsuit is filed in a bankruptcy court, it is called an adversary proceeding. A party filing an adversary proceeding must also must complete and file Form 104, the Adversary Proceeding Cover Sheet, unless the party files the adversary proceeding electronically through the court’s Case Management/Electronic Case Filing system (CM/ECF). (CM/ECF captures the information on Form 104 as part of the filing process.) When completed, the cover sheet summarizes basic information on the adversary proceeding. The clerk of court needs the information to process the adversary proceeding and prepare required statistical reports on court activity. The cover sheet and the information contained on it do not replace or supplement the filing and service of pleadings or other papers as required by law, the Bankruptcy Rules, or the local rules of court. The cover sheet, which is largely selfexplanatory, must be completed by the plaintiff’s attorney (or by the plaintiff if the plaintiff is not represented by an attorney). A separate cover sheet must be submitted to the clerk for each complaint filed. Plaintiffs and Defendants. Give the names of the plaintiffs and defendants exactly as they appear on the complaint. Attorneys. Give the names and addresses of the attorneys, if known. Party. Check the most appropriate box in the first column for the plaintiffs and the second column for the defendants. Demand. Enter the dollar amount being demanded in the complaint. Signature. This cover sheet must be signed by the attorney of record in the box on the second page of the form. If the plaintiff is represented by a law firm, a member of the firm must sign. If the plaintiff is pro se, that is, not represented by an attorney, the plaintiff must sign. Case 10-30631 Doc 238 Filed 08/31/11 Entered 08/31/11 12:40:18 Document Page 2 of 6 Desc Main I N T H E U N I T E D S TAT E S BANKRUPCTY COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION IN RE: ALLEGRO LAW, LLC., DEBTOR, DANIEL G. HAMM, CHAPTER 7 TRUSTEE, PLAINTIFF, CHAPTER 7 CASE NO. 2010-30631(WRS) VS. CORBETT ENTERPRISES, LLC, D/B/A STEAK-OUT HOOVER, DEFENDANT. ADVERSARY PROCEEDING NUMBER ___________ COMPLAINT COMES NOW the plaintiff, Daniel G. Hamm, Trustee of the above-styled Debtor’s estate by his counsel and shows this Honorable Court as follows: 1. Plaintiff, Daniel G. Hamm (“Trustee”) is the duly appointed and qualified Trustee for the Estate of the Debtor, Allegro Law, LLC. 2. This adversary proceeding constitutes a core proceeding pursuant to 28 U.S.C. § 157(b). 3. Venue is proper pursuant to 28 U.S.C. § 1409(a). Case 10-30631 Doc 238 Filed 08/31/11 Entered 08/31/11 12:40:18 Document Page 3 of 6 Desc 1 Main Page of 4 4. This Honorable Court has jurisdictions of this matter pursuant to 28 U.S.C. § 1334 and §§151 et seq. This cause of action is based upon 11 USC § 548 of the Bankruptcy Code. 5. Section 548(a)(1)(B)(ii) of the Bankruptcy Code states, the Trustee may avoid any transfer of an interest of the debtor that was made within 2 years before the date of the filing of the petition, if the debtor “made such transaction to or for the benefit of an insider.” 6. Alabama Code § 8–9A–5(a) (1975) states: “that a constructive fraudulent transfer occurs when: (1) the debtor transfers their interest in property; (2) for less than a reasonably equivalent value; and (3) the debtor was insolvent on the date of the transfer.” In re Dorsey, 2011 WL 2313158 *15 (Bankr. M.D. AL 2011); See Alexander v. J. Martin & Assc., et al. (In re Terry Manufacturing), 363 B.R. 233, 236 (Bankr.M.D. AL 2007). 7. In this case, the Trustee filed the petition on behalf of the Debtor seeking relief under Chapter 7 in this case on March 12, 2010 after Keith Anderson Nelms, the 100% sole owner of the Debtor, filed his own voluntary petition in bankruptcy. 8. At the time of the subject transfers there were in excess of 20,000 creditors to whom the Debtor owed money. 9. The Defendant is a company owned by Keith Anderson Nelms and David Nelms. 10. Keith Anderson Nelms is an “insider” pursuant to 11 USC § 101(31)(B)(iii). 11. The Defendant is an “insider” pursuant to “the language of the Code section as exemplary of relationships which are characteristic of the requisite degree of closeness, it must be determined that a limited liability company is an “insider” of its managing member, or the person in control of it, and vice versa.” In re Farris, 2008 WL 4830309 *44 (Bankr. N.D. AL 2008); See Brooke Credit Corporation v. Lobell (In re Benoit), 390 B.R. 206, 218 (Bankr.M.D. L.A .2008); In re Fortune Natural Resources Corp., 350 B.R. 693, 696 (Bankr.E.D. L.A. 2006); Solomon v. Barman (In re Barman), 237 B.R. 342, 348 (Bankr.E.D. MI 1999); O'Connell v. Shallo (In re Die Fliedermaus, LLC), 323 B.R. 101, 111 (Bankr.S.D.N.Y.2005). “The artificial, legal entity is an insider of the natural person who is either designated as the person Case 10-30631 Doc 238 Filed 08/31/11 Entered 08/31/11 12:40:18 Document Page 4 of 6 Desc 2 Main Page of 4 officially in charge of managing that entity or is de facto in control of that entity.” Farris at *44. The Defendant would be an insider of Keith Anderson Nelms, who is the sole owner of the Debtor; therefore, the Defendant would be an insider of the Debtor. 12. That within the twelve (12) months immediately preceding the filing of the petition in bankruptcy the Debtor made multiple payments to the Defendant including, but not limited to the following: a) March 30, 2009, check number 1005 from Allegro Law, LLC, Sterling Bank account number 062203997, in the amount of $14,000.00; b) May 13, 2009, check number 1061 from Allegro Law, LLC, Sterling Bank account number 062203997, in the amount of $30,000.00; c) May 21, 2009, check number 1071 from Allegro Law, LLC, Sterling Bank account number 062203997, in the amount of $9,400.00; d) June 3, 2009, check number 1005 from Allegro Law, LLC, Sterling Bank account number 062203997, in the amount of $9,073.04; e) June 10, 2009, check number 1104 from Allegro Law, LLC, Sterling Bank account number 062203997, in the amount of $5,000.00; f) June 10, 2009, check number 1105 from Allegro Law, LLC, Sterling Bank account number 062203997, in the amount of $5,000.00; g) June 18, 2009, check number 1114 from Allegro Law, LLC, Sterling Bank account number 062203997, in the amount of $10,000.00. 13. The Debtor was insolvent at the time of the transfer. 14. The transfer enabled the Defendant to receive more than it would have received if the transfer had not been made. 15. The payments were within one year of the filing of the petition in bankruptcy. WHEREFORE, the Trustee prays that this Honorable Court to avoid the transfers and enter a judgment for the Trustee against the above-named Defendant for $82,473.04 Case 10-30631 Doc 238 Filed 08/31/11 Entered 08/31/11 12:40:18 Document Page 5 of 6 Desc 3 Main Page of 4 and order the costs of court be taxed against the Defendant and grant Plaintiff such other and further relief to which he is entitled in the premises. RESPECTFULLY SUBMITTED on Wednesday the 31st day of August 2011. /s/ Daniel G. Hamm DANIEL G. HAMM (HAM043) ATTORNEY FOR CHAPTER 7 TRUSTEE DANIEL G. HAMM, P.C. 560 SOUTH MCDONOUGH STREET MONTGOMERY, ALABAMA 36104 Case 10-30631 Doc 238 Filed 08/31/11 Entered 08/31/11 12:40:18 Document Page 6 of 6 Desc 4 Main Page of 4 B 250A (8/96) Reset Print United States Bankruptcy Court _______________ Of_______________ Middle District of Alabama In re Allegro Law, LLC., _______________________________________________, Debtor Daniel G. Hamm, Trustee _______________________________________________, Plaintiff v. Corbett Enterprises, LLC., D.B.A., Steak Out Hoover _______________________________________________, Defendant ) ) ) ) ) ) ) ) ) ) 2010-30631 Case No. ____________ 7 Chapter _____________ Adv. Proc. No. _____________ SUMMONS IN AN ADVERSARY PROCEEDING YOU ARE SUMMONED and required to file a motion or answer to the complaint which is attached to this summons with the clerk of the bankruptcy court within 30 days after the date of issuance of this summons, except that the United States and its offices and agencies shall file a motion or answer to the complaint within 35 days. Address of Clerk: Address of Clerk U.S. Bankruptcy Court Middle District of Alabama One Church Street Montgomery, AL 36104 At the same time, you must also serve a copy of the motion or answer upon the plaintiff's attorney. Name and Address of Plaintiff's Attorney: G. Hamm Name and Address of Plaintiff' s Daniel Attorney 560 S. McDonough St. Ste. A, Montgomery, AL 36104 If you make a motion, your time to answer is governed by Fed. R. Bankr. P. 7012. IF YOU FAIL TO RESPOND TO THIS SUMMONS, YOUR FAILURE WILL BE DEEMED TO BE YOUR CONSENT TO ENTRY OF A JUDGMENT BY THE BANKRUPTCY COURT AND JUDGMENT BY DEFAULT MAY BE TAKEN AGAINST YOU FOR THE RELIEF DEMANDED IN THE COMPLAINT. _________________________________________________________ Clerk of the Bankruptcy Court 8/31/11 ___________________________________ Date Case 10-30631 Doc 238-1 By:______________________________________________________ Deputy Clerk Filed 08/31/11 Entered 08/31/11 12:40:18 Summons Page 1 of 2 Desc Save As CERTIFICATE OF SERVICE I, ___________________________________________, certify that I am, and at all times during the (name) service of process was, not less than 18 years of age and not a party to the matter concerning which service of process was made. I further certify that the service of this summons and a copy of the complaint was made _________________________ by: NOTE: If more space is needed, note "See Attached Page" in the (date) appropriate box and add additional addresses to 3rd page of form. Mail Service: Regular, first class United States mail, postage fully pre-paid, addressed to: Personal Service: By leaving the process with defendant or with an officer or agent of defendant at: Residence Service: By leaving the process with the following adult at: Certified Mail Service on an Insured Depository Institution: By sending the process by certified mail addressed to the following officer of the defendant at: Publication: The defendant was served as follows: [Describe briefly] Alabama State Law: The defendant was served pursuant to the laws of the State of ________________________, as follows: [Describe briefly] (name of state) Under penalty of perjury, I declare that the foregoing is true and correct. _______________________________________ Date Date __________________________________________________________________ Signature Signature Print Name: Print Name Business Address: Business Address City Case 10-30631 State Doc 238-1 Zip Filed 08/31/11 Entered 08/31/11 12:40:18 Summons Page 2 of 2 Desc