August 19, 2019

Archives for December 18, 2013

Finalists Selected for Judgeships on Denver District Court, Larimer County Court; Vacancy on Sedgwick County Court

Finalists have been selected for a vacancy on the Denver District Court bench. The vacancy is occasioned by the appointment of Hon. William Hood, III, to the Colorado Supreme Court. The nominees are Jay Grant of Denver, Andrew McCallin of Denver, and Colin Walker of Denver. Governor Hickenlooper must appoint one of the nominees within fifteen days after December 17, 2013.

Three finalists were selected for a vacancy on the Larimer County Court as well. The vacancy was created by the resignation of Hon. Christine Carney, effective December 31, 2013. The three finalists are David P. Ayraud of Fort Collins, Kraig Ecton of Fort Collins, and Matthew R. Zehe of Fort Collins. The governor has fifteen days from December 9, 2013, in which to appoint one of the nominees.

Comments regarding any of the finalists for judicial vacancies may be emailed to the governor at

The Thirteenth Judicial District announced a vacancy on the Sedgwick County Court bench, effective February 7, 2014. The vacancy will be created by the resignation of Hon. James M. Wittler. Eligible applicants for the vacancy must be qualified electors of Sedgwick County and must have graduated high school or a high school equivalency program. Applications are available from the ex officio chair of the nominating commission, Justice Allison Eid. Applications must be filed with Justice Eid no later than 4 p.m. on January 6, 2014. For more information about this vacancy and the application process, click here.

Tenth Circuit: If Debtor Transfers More Than 15% of GAI to Qualified Organization, Trustee May Recover Entire Amount, Not Just Amount in Excess of 15%

The Tenth Circuit Court of Appeals published its opinion in Wadsworth v. The Word of Life Christian Center on Monday, December 16, 2013.

Debtors Lisa and Scott McGough filed for bankruptcy relief under Chapter 7 in 2009. During 2008, the McGoughs made contributions to the Word of Life Christian Center (the Center), totaling $3,478. During 2009, they made contributions to the Center totaling $1,280. Their taxable income for 2008 and 2009 was $6,800 and $7,487, respectively. They also received social security benefits in 2008 and 2009 totaling $22,036 and $23,164, respectively.

The Trustee filed an adversary proceeding against the Center seeking to recover the contributions made to it by the McGoughs under 11 U.S.C. §§ 548(a)(1)(B) and 550. Both parties filed motions for summary judgment. According to the Center, because the individual amounts of each contribution made by the McGoughs did not exceed 15% of their gross annual income (“GAI”), none were avoidable under the safe harbor provision of § 548(a)(2). The Trustee took the opposite view: the contributions must be considered in the aggregate and because the total contributions made by the McGoughs exceeded 15% of their GAI in those years, he could recover them in their entirety.

The bankruptcy court agreed with the Trustee in part: for purposes of the safe harbor provision of § 548(a)(2), a debtor’s contributions must be considered in their annual aggregate. However, it sided with the Center on the avoidance issue—if the contributions exceeded 15% of a debtor’s GAI, only the amount exceeding 15% is subject to avoidance. Thus, the Trustee’s recovery was limited to the amount of the contributions exceeding 15% of the McGoughs’ GAI. The Trustee appealed to the Bankruptcy Court of Appeals (BAP). Therefore, the only issue before the BAP was whether § 548(a)(2) allows a trustee to recover the entire amount of a charitable contribution if it exceeds 15% of GIA or only the amount in excess of 15%. The BAP agreed with the bankruptcy court—only the amount exceeding 15% was avoidable.

The sole question on appeal was a narrow one: If a restricted debtor transfers more than 15% of his GAI to a qualified religious or charitable organization, may the trustee avoid the entire annual transfer or only the portion exceeding 15%? The bankruptcy court and Bankruptcy Court of Appeals (BAP) said circumstances here only permitted the trustee to avoid the portion of the transfer exceeding 15%. The issue presented was a matter of first impression in the Tenth Circuit.

The Tenth Circuit agreed with the Trustee’s argument: § 548(a)(2) is unambiguous and clearly provides a safe harbor from the trustee’s avoidance power only if the “transfer” does not exceed 15% of GAI. Thus the converse must also be true—if the “transfer” exceeds 15% of GAI, then the “transfer”—meaning the entire transfer—is subject to avoidance. Had Congress intended for only the portion of the transfer exceeding 15% of GAI to be subject to avoidance, it would have added limiting language to that effect.  It did not.


Tenth Circuit: Unpublished Opinions, 12/16/13

On Monday, December 16, 2013, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Guoying v. Holder

Ngiendo v. Social Security Administration

United States v. Pena

Hershey v. Exxonmobil Oil Corporation

Bynum v. City and County of Denver

Schell v. Evans

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.