                           NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 20a0265n.06

                                       Case No. 19-6200

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                                FILED
                                                                                 May 11, 2020
                                                                             DEBORAH S. HUNT, Clerk
CARL FREDERICK COSLOW,                               )
                                                     )
        Plaintiff-Appellee,                          )        ON APPEAL FROM THE
                                                     )        UNITED STATES DISTRICT
v.                                                   )        COURT FOR THE WESTERN
                                                     )        DISTRICT OF KENTUCKY
WILLIAM STEPHEN REISZ,                               )
                                                     )
        Defendant-Appellant.                         )                            OPINION


BEFORE: MOORE, McKEAGUE, and READLER, Circuit Judges.

        McKEAGUE, Circuit Judge. William Reisz, a bankruptcy trustee, appeals the order of

the district court affirming the order of the bankruptcy court, which itself denied summary

judgment to the trustee, granted summary judgment to debtor, Carl Coslow, and ordered the trustee

to abandon Coslow’s residence. For the reasons stated herein, we REVERSE and grant judgment

in favor of the trustee.

                                                I

        In June 2014, Carl Coslow was in serious financial trouble. For years he had successfully

run his own company, Republic Industries International, Inc. (“Republic”). But after a downturn

in business, Republic was struggling to pay off the $4.5 million in loans it had taken out from

Stock Yards Bank (“Stock Yards”). Coslow also faced significant personal risk, since he had
Case No. 19-6200, Coslow v. Reisz


personally guaranteed the loans. At risk of defaulting on the loans, Coslow decided to liquidate

Republic.

        As part of this process, in November 2014, Republic sold its Highwall Mining Division to

JBLCO, LLC (“JBL”) pursuant to an Asset Purchase Agreement (APA). JBL didn’t pay the

purchase price in a lump sum; per the APA, JBL was obligated to pay off the price in installments

over several years. Republic assigned its right to JBL’s future payments directly to Stock Yards.

        By December 2015, Republic had liquidated all of its assets that were worth anything. But

it still owed Stock Yards over $1 million. At that point, Coslow and Stock Yards made a deal.

Stock Yards decreased the amount of Coslow’s personal liability for his guarantees on Republic’s

loans to $425,000, the same amount owed by JBL under the APA. Coslow granted Stock Yards a

mortgage on his residence in the amount of $275,000 to secure JBL’s continued payments. And

Coslow also promised to continue making efforts to “cause Republic to perform its covenants

under the [APA]” with JBL and “to facilitate collection on behalf of Stock Yards from JBL.” Joint

Stipulation of Facts, R. 10, at 3.

        On July 26, 2016, Coslow filed for bankruptcy under Chapter 7. He and his wife owned

their residence as joint tenants with rights of survivorship, and had a traditional mortgage on their

house, which at that point had a balance of approximately $62,500. Coslow also had his second

mortgage with a balance of $275,000. Although JBL had been paying Stock Yards, at that point,

it had not paid down its obligation below $275,000, the amount of Coslow’s second mortgage. So

it had not decreased the amount of Stock Yards’s mortgage as of Coslow’s bankruptcy petition.

But JBL was on track to pay off its obligation entirely and thus Coslow’s second mortgage by May

2017.




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Case No. 19-6200, Coslow v. Reisz


          On December 30, 2016, Coslow filed a complaint in the bankruptcy court alleging that

since his residence was fully encumbered on the day of his bankruptcy petition, it was of

inconsequential value and benefit to the estate and should be abandoned by the trustee under

11 U.S.C. § 554(b). Coslow sought a declaratory judgment to that effect and an order compelling

the trustee to abandon the property. The trustee filed an answer and counterclaim on January 30,

2017. The trustee argued that the court should consider the equity created post-petition by JBL’s

continued monthly payments to Stock Yards.

          The bankruptcy court granted Coslow’s motion for summary judgment and issued an order

compelling the trustee to abandon the residence. The bankruptcy court found that the value of the

residence should be determined as of the day of Coslow’s petition for bankruptcy. Because Coslow

had no equity on that day, the residence was of inconsequential value and benefit to the estate.

Thus, the bankruptcy court held that the property should be abandoned. The court also found that

any equity in the house that accrued as a result of JBL’s payments was payment for Coslow’s post-

petition labor. And so it could not become property of the bankruptcy estate. The trustee appealed,

and the district court affirmed the bankruptcy court’s order. The trustee then brought this appeal.

                                                  II

          When an appellant challenges a district court’s order affirming an order of the bankruptcy

court, “this court will directly review the Bankruptcy Court’s opinion rather than the District

Court’s opinion in the initial appeal.” In re Conco, Inc., 855 F.3d 703, 709 (6th Cir. 2017). And

when we directly review a bankruptcy court’s decision on a motion for summary judgment, “we

review the bankruptcy court’s factual findings for clear error and its legal conclusions de novo.”

In re Wells, 561 F.3d 633, 634 (6th Cir. 2009) (citing In re Cannon, 277 F.3d 838, 849 (6th Cir.

2002)).



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       Summary judgment is appropriate when there is no dispute of material fact, so that the case

can be decided as a matter of law. Fed. R. Civ. P. 56(a). There is no dispute of material fact in

this case, as is evidenced by the parties’ joint submission of a stipulated record. So the question

is: which party’s motion for summary judgment should be granted? Which party is entitled to

judgment as a matter of law? The bankruptcy court found that Coslow was entitled to summary

judgment. We disagree.

       The first question is what exactly became property of the estate. The house is easy. Coslow

had a “legal or equitable interest” in his property “as of the commencement of the case.” 11 U.S.C.

§ 541(a)(1). And so his home became property of the estate when Coslow filed for bankruptcy.

       The harder question is whether the equity that accrued in Coslow’s residence after his

bankruptcy petition became property of the estate. After all, Coslow’s equity increased because

of payments made by JBL after Coslow’s bankruptcy petition; the relevant payments hadn’t yet

been made “as of the commencement of the case.” The bankruptcy code holds the answer to this

question; it says that the bankruptcy estate acquires all “[p]roceeds, product, offspring, rents, or

profits of or from property of the estate, except such as are earnings from services performed by

an individual debtor after the commencement of the case.” 11 U.S.C. § 541(a)(6) (emphasis

added). So, in general, post-petition increases in equity do become part of the bankruptcy estate,

as long as the equity isn’t payment for post-petition services. Wilson v. Rigby, 909 F.3d 306, 309

(9th Cir. 2018); In re Celentano, No. 10-22833 (NLW), 2012 WL 3867335, at *5 (Bankr. D.N.J.

Sept. 6, 2012).

       The bankruptcy court found that JBL’s payments under the APA, and the resulting

increases in Coslow’s equity in his residence, were compensation for Coslow’s post-petition

services. Thus, it held that the equity accrued in Coslow’s residence after his bankruptcy petition



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Case No. 19-6200, Coslow v. Reisz


did not become part of the bankruptcy estate. The bankruptcy court’s finding that Coslow

performed post-petition work is a factual finding, so we review it only for clear error. See In re

Wells, 561 F.3d at 634. “A factual finding is clearly erroneous when, though there is evidence to

support that finding, ‘the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.’” United States v. Mack, 159 F.3d 208, 215 (6th

Cir. 1998) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

        This is one of those rare cases where we are left with the firm conviction that the

bankruptcy court was mistaken. For one thing, Coslow does not even claim that he performed

post-petition labor in order to earn JBL’s payments. His brief on appeal doesn’t assert that JBL

was paying him for any post-petition work. His brief in the district court didn’t claim he did post-

petition work. And his complaint in the bankruptcy court didn’t allege that he did post-petition

work.

        But even if we overlook the fact that Coslow himself does not purport to have performed

post-petition work, there is also the problem of a lack of evidence to support the bankruptcy court’s

factual finding. It was Coslow’s burden to make the initial showing that he performed post-petition

services. See In re Thomas, 516 F. App’x 875, 878 (11th Cir. 2013); In re Walhof Props., LLC,

No. 8:18-BK-05531-MGW, 2020 WL 1645968, at *3 (Bankr. M.D. Fla. Mar. 30, 2020). He did

not make that showing. Yes, the parties stipulated that Coslow signed an agreement with Stock

Yards that said he would make “continued efforts to cause Republic to perform its covenants under

the [APA]” and make “efforts to facilitate collection on behalf of Stock Yards from JBL.” Joint

Stipulation of Facts, R. 10, at 3. But that agreement doesn’t indicate that Republic actually had

any covenants that it still had to perform under the APA or that Coslow actually had to do anything

to facilitate JBL’s payments. See Longaker v. Bos. Sci. Corp., 715 F.3d 658, 662 (8th Cir. 2013)



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(“Courts construe § 541(a)(6)’s earning exception narrowly and apply it only to payments a debtor

receives post-petition if the money is attributable to post-petition services actually rendered by the

debtor.”) (citing In re Stinnett, 465 F.3d 309, 313 (7th Cir. 2006)). Further, even if Coslow did

have to do some work after his agreement with Stock Yards to ensure JBL’s payments, we don’t

have any evidence of whether Coslow performed any of that work after his bankruptcy petition.

And any payments received post-petition for “services performed prior to bankruptcy are

includable within the bankruptcy estate.” In re Ryerson, 739 F.2d 1423, 1426 (9th Cir. 1984); see

also In re Soboslai, 263 B.R. 700, 703 (Bankr. D. Conn. 2001) (finding that the portion of a bonus

was to be included in the bankruptcy estate in a prorated amount equal to the portion of the bonus

attributable to pre-petition services). The language in the agreement between Coslow and Stock

Yards is insufficient standing on its own to support the bankruptcy court’s finding that Coslow

actually performed services and that he did so after filing for bankruptcy. Because the post-petition

equity increase in Coslow’s residence was not compensation for post-petition services, we

conclude that the equity did become property of the estate.

       Having determined that the house and any associated equity appreciation were property of

the bankruptcy estate, the second question is whether the bankruptcy court should have ordered

the trustee to abandon that property. Under 11 U.S.C. § 554(b), “the court may order the trustee

to abandon any property of the estate that is burdensome to the estate or that is of inconsequential

value and benefit to the estate.” But “[a]n order compelling abandonment is the exception, not the

rule. Abandonment should only be compelled in order to help the creditors by assuring some

benefit in the administration of each asset.” In re K.C. Mach. & Tool Co., 816 F.2d 238, 246 (6th

Cir. 1987).




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Case No. 19-6200, Coslow v. Reisz


       Coslow argues that the bankruptcy court was right to order the trustee to abandon Coslow’s

residence because he had no equity in the property at the time he filed for bankruptcy and so the

residence held no value for the estate. He suggests that the court must ignore the fact that after he

filed his bankruptcy petition, JBL continued paying down his mortgage every month, such that

Coslow quickly gained equity in the house. This is because, according to Coslow, the snapshot

rule applies, and the court must assess his equity in his house at the time of his bankruptcy petition

and therefore ignore JBL’s subsequent payments.

       In our view, however, it makes little sense to apply the snapshot rule here. First, unlike

determining what property becomes a part of the bankruptcy estate, which is measured at the time

of filing, the abandonment section of the bankruptcy code says nothing about looking to the

“commencement of the case” to determine value. Compare 11 U.S.C. § 541(a)(1), with id.

§ 554(b). In fact, the abandonment section uses the present tense when discussing abandonment

of valueless property. See id. § 554(b) (“On request of a party in interest and after notice and a

hearing, the court may order the trustee to abandon any property of the estate that is burdensome

to the estate or that is of inconsequential value and benefit to the estate.” (emphasis added)).

       Second, as best we can tell, every court confronted with an analogous abandonment dispute

has looked to the equity contained in the debtor’s property at the time the abandonment motion

came before it, rather than at some static moment in the past. See, e.g., Celentano, 2012 WL

3867335 at *4–6. (discussing issue and collecting cases). And for good reason, too, as the question

of whether to abandon property is not limited to a simple equity calculation. Rather, as we

explained in In re K.C. Mach. & Tool Co., abandonment is a commonsensical inquiry, requiring

courts to look beyond whether the property has “present value [for] the estate,” and to consider

also whether “administration of the property will benefit the estate,” in any way. 816 F.2d at 245;



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accord 11 U.S.C. § 554(b) (“[T]he court may order the trustee to abandon any property of the

estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.”

(emphasis added)); In re Paolella, 79 B.R. 607, 610–11 (Bankr. E.D. Pa. 1987) (stating that the

“party opposing abandonment might also establish some other form of value or benefit to the estate

which would accrue to it by retention of the property” and “I am prepared to grant the debtors’

requests to order abandonment in both cases unless some party comes forward to establish that one

or both estates have equity in the properties at issue or can show some other benefit to the estates

emerging from continued administration of these properties” (emphases added)).

        Moreover, to the extent any bankruptcy courts have considered equity at the time of filing

in the course of deciding an abandonment motion, cf. Paolella 79 B.R. at 610, there is no indication

that those courts were applying the snapshot rule, much less that they were confronted with the

“somewhat unusual” circumstances present here, In re Coslow, 573 B.R. 717, 722 (Bankr. W.D.

Ky. 2017). That is, a circumstance where a third party had quickly paid down a debtor’s mortgage

during the pendency of the bankruptcy, such that a property that appeared to be without equity at

filing was suddenly brimming with equity by the time the abandonment motion came before the

court.1 See Appellant Br. at 8 (noting that, by the time the abandonment motion came before the

bankruptcy court in April 2017, Coslow’s equity in his home was north of $200,000). Therefore,

the bankruptcy court’s decision to approve abandonment—based on nothing more than the

snapshot rule and a simple equity calculation—was legal error.

        In response, Coslow argues that a parade of horribles will follow from this conclusion, and

that trustees will force bankruptcy courts to keep cases involving underwater properties open “for



1
 In the run of the mill individual Chapter 7 bankruptcy, by contrast, a debtor will not pay their mortgage during the
pendency of the bankruptcy (because they are protected temporarily from foreclosure by the “bankruptcy stay” and
because they are likely to lose their home once the bankruptcy concludes anyway).

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Case No. 19-6200, Coslow v. Reisz


years,” just to collect the pot of equity at the end of the mortgage rainbow. Appellee Br. at 16.

We are not convinced. Not only is this case factually distinct—most Chapter 7 filers do not have

a third party paying off their mortgage during the pendency of their bankruptcy, thus making any

parade, horrible or not, unlikely—but also, as the Bankruptcy Appellate Panel of the Ninth Circuit

has noted, there is a simple solution to this fear: move for abandonment sooner, before accruing

substantial equity in the property. See In re Chappell, 373 B.R. 73, 83 (9th Cir. BAP 2007)

(observing that “[s]uch a motion would either [] force[] the trustee to sell before he might otherwise

have preferred or allow[] the debtors to withdraw the property from the estate entirely as being ‘of

inconsequential value and benefit to the estate’”).

                                                 III

        In sum, because Coslow’s residence had value to the estate at the time the bankruptcy court

considered Coslow’s abandonment motion, and that value was not the result of post-petition

services performed by Coslow, the bankruptcy court could not order the trustee to abandon the

residence. We therefore reverse the bankruptcy court’s order, and grant summary judgment in

favor of the trustee.




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