Complaint to Avoid and Preserve Lien — Keith Lowey, Trustee v. Innovation Refunds (District of Massachusetts)
Summary
A complaint to avoid and preserve lien filed August 25, 2025 by Keith Lowey, as Liquidating Trustee of the CW Keller Liquidating Trust, against Innovation Refunds LLC, Adversary Case 25-01139, in the U.S. Bankruptcy Court for the District of Massachusetts, in the C.W. Keller & Associates, LLC chapter 11 case, Case No. 23-11357-CJP. The complaint states that the debtor and Innovation Refunds signed a Master Services Agreement on or about July 31, 2023 for referral services on employee retention tax credits, and that a UCC-1 statement was recorded on December 5, 2023, after the August 24, 2023 petition date. Count I seeks a declaratory judgment, Count II avoidance and preservation of the lien under 11 U.S.C. §§ 544 and 551, and Count III avoidance of a preference. Exhibit A is the UCC-1 form.
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“Complaint to Avoid and Preserve Lien — Keith Lowey, Trustee v. Innovation Refunds (District of Massachusetts).”
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
(Eastern Division)
In re Chapter 11
C.W. KELLER & ASSOCIATES, LLC, et Case No. 23-11357-CJP
al.
(Jointly Administered)
Debtors,
KEITH LOWEY, in his capacity as
Liquidating Trustee of the CW Keller
Liquidating Trust,
Plaintiff,
Adv. Proc. No. 25-_____-CJP
v.
INNOVATION REFUNDS LLC
Defendant.
COMPLAINT TO AVOID AND PRESERVE LIEN
Plaintiff Keith Lowey (the “Trustee”), in his capacity as the duly appointed
Liquidating Trustee of the CW Keller Liquidating Trust (the “Trust”), hereby files
this Complaint (the “Complaint”) against Innovation Refunds LLC to avoid and
preserve for the estate a lien obtained by Defendant and respectfully alleges as
follows:
Parties
1. The Trustee has a place of business at 124 Washington Street, Suite
101, Foxboro, Massachusetts 02035.
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2. Defendant Innovation Refunds LLC (“Defendant”) is a Delaware
limited liability company with a business address at 4350 Westown Parkway, Suite
300, Des Moines, Iowa 50266.
Jurisdiction and Venue
3. This Court has jurisdiction over this adversary proceeding, which
relates to the above-captioned pending case, pursuant to 28 U.S.C. §§ 157(b), 1334
and L.R., D. Mass. 201.
4. Venue is proper in this Court under 28 U.S.C. § 1409(a).
5. This is a core proceeding pursuant to 28 U.S.C. § 157(b).
6. This Court has jurisdiction over the Defendant pursuant to Rule
7004(f) of the Federal Rules of Bankruptcy Procedure and by virtue of Defendant
filing a proof of claim.
Facts
7. On August 24, 2023 (the “Petition Date”), C.W. Keller & Associates,
LLC (a Massachusetts limited liability company) (the “Debtor”) and C.W. Keller
Holding Company, Inc. (a Massachusetts corporation) (“Holding,” and together, the
“Debtors”) each filed a voluntary petition under chapter 11 of 11 U.S.C. § 101, et
seq. (“Bankruptcy Code”), commencing the above-captioned bankruptcy case (the
“Bankruptcy Case”).
8. On January 5, 2024, the Debtors filed the Second Amended Chapter 11
Plan of Liquidation (the “Plan”), which provided for the creation of a Liquidating
Trust for the purpose of liquidating and distributing the Debtors’ assets.
2
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9. On February 20, 2024, the Court entered an order confirming the Plan
(the “Confirmation Order”). Pursuant to the Confirmation Order, the Court
appointed the Trustee as trustee of the Liquidating Trust.
10. Section 5.15 of the Plan vests the Liquidating Trustee with all rights,
powers and benefits afforded to a “trustee” under the Bankruptcy Code. Section 5.30
of the Plan confers on the Trustee the right to commence and prosecute Avoidance
Actions (as defined in the Plan) pursuant to Sections 544, 547, 548, 550 and 551 of
the Bankruptcy Code.
11. On or about July 31, 2023, the C.W. Keller & Associates, Inc. and
Defendant executed that certain Master Services Agreement (the “MSA”), pursuant
to which Defendant, agreed to provide certain referral services as part of the
pursuit of employee retention tax credits (“ERC”).
12. In exchange for such services, C.W. Keller & Associates, Inc. agreed to
pay Defendant a contingent fee upon the occurrence of certain events (the
“Contingent Fee”).
13. Pursuant to Section 7 of the MSA, C.W. Keller & Associates, Inc.
granted Defendant a lien in certain collateral to secure payment of the Contingent
Fee, and permission to file one or more UCC-1 financing statements or other
documents to perfect is security interest in such collateral.
14. Defendant, however, did not record a UCC-1 financing statement with
the Secretary of the Commonwealth of Massachusetts until December 5, 2023—
months after the Petition Date and in violation of the automatic stay, including 11
3
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U.S.C. § 362(a)(4) and (5). A copy of Defendant’s UCC-1 statement filed against the
Debtor (the “Defendant’s Financing Statement”) is attached as Exhibit A.
COUNT I
DECLARATORY JUDGMENT
15. The Trustee repeats and realleges the allegations of the foregoing
paragraphs with the same force and effect as though fully set forth herein.
16. A controversy exists concerning the perfection, validity, and amount of
Defendant’s lien.
17. The Trustee requests a declaration that the recording of Defendant's
Financing Statement on December 5, 2023 violated the automatic stay and failed to
perfect its security interest in any property of the Debtor for the estate, and that
Defendant's Financing Statement is void.
COUNT II
AVOIDANCE AND PRESERVATION OF LIEN
11 U.S.C. §§ 544 and 551
18. The Trustee repeats and realleges the allegations of the foregoing
paragraphs with the same force and effect as though fully set forth herein.
19. Section 544 of the Bankruptcy Code provides that a trustee shall have
the right and power, as of the commencement of the case, and without regard to any
knowledge of the trustee or of any creditor, to avoid any transfer of property of a
debtor of any obligation incurred by the debtor that is avoidable by a judicial lien
creditor.
4
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20. Property of the Debtor was transferred to Defendant when the
Defendant's Financing Statement was recorded with the Secretary of the
Commonwealth.
21. Defendant’s lien was not properly perfected and is avoidable pursuant
to Section 544 of the Bankruptcy Code.
22. Section 551 of the Bankruptcy Code provides that any lien that is
avoided is preserved for the benefit of the bankruptcy estate.
23. To the extent that Defendant's lien is avoided, the Trustee is entitled
to preservation of the voided lien for the benefit of the bankruptcy estate.
COUNT III
AVOIDANCE AND RECOVERY OF PREFERENCE
11 U.S.C. §§ 547, 550 and 551
24. The Trustee repeats and realleges the allegations of the foregoing
paragraphs with the same force and effect as though fully set forth herein.
25. The transfer of the security interest to Defendant pursuant to the MSA
was a transfer of an interest of a Debtor in property made to or for the benefit of a
creditor.
26. The transfer of the security interest to Defendant pursuant to the MSA
was made on account of an antecedent debt owed by a Debtor before such Transfer
was made.
27. The transfer of the security interest to Defendant pursuant to the MSA
was made while the Debtors were insolvent.
5
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28. The transfer of the security interest to Defendant pursuant to the MSA
was made on or within ninety (90) days before the filing of the Debtors’ bankruptcy
petitions.
29. The transfer of the security interest to Defendant pursuant to the
MSA, if not avoided, would enable the Defendant to receive more than it would
receive if: (i) the Bankruptcy Case were a Chapter 7 case; (ii) the transfer had not
been made; and (iii) the Defendant received payment of such debt to the extent
allowable under the Bankruptcy Code.
30. The transfer of the security interest to Defendant pursuant to the MSA
is voidable by the Trustee as a preference pursuant to 11 U.S.C. § 547, which the
Trustee may avoid pursuant to 11 U.S.C. § § 550 and 551.
31. The Trustee is entitled a judgment against Defendant avoiding the
transfer of the security interest to Defendant pursuant to the MSA pursuant to 11
U.S.C. § 547 and preserving it for the benefit of the Debtors’ bankruptcy estates
pursuant to 11 U.S.C. §551.
Prayer for Relief
WHEREFORE, the Trustee respectfully requests that this Court enter
judgment in favor of the Trustee as follows:
1. Declaring that Defendant’s recording of Defendant’s Financing
Statement failed to perfect a security interest in any property of the
Debtor of the estate, and is void;
2. Determining that Defendant’s Financing Statement and lien were not
properly perfected and are avoidable, and ordering that each such
transfer be avoided and the position preserved for the Trustee for the
benefit of the estate pursuant to Sections 544 and 551 of the
Bankruptcy Code;
6
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3. Avoiding, setting aside and preserving for the benefit of the estate the
transfer of the security interest pursuant to Sections 547, 550, and 551
of the Bankruptcy Code;
4. Awarding costs and legal fees; and
5. Granting the Trustee such other and further relief as is just and
proper.
KEITH LOWEY, LIQUIDATING
TRUSTEE
By his attorneys,
/s/ Joseph M. Downes III
Joseph M. Downes III (BBO No. 655853)
William S. McMahon (BBO No. 651832)
Downes McMahon LLP
215 Lewis Wharf
Boston, MA 02110
Telephone: (617) 600-6430
Facsimile: (617) 848-3781
jdownes@dmlawllp.com
wmcmahon@dmlawllp.com
7
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EXHIBIT A
Case 25-01139 Doc 1 Filed 08/25/25 Entered 08/25/25 20:17:34 Desc Main
Document
MA SOC Filing Number: 202305987310 Page
Date:9 of 9
12/5/2023 5:28:00 PM
UCC-1 Form
FILER INFORMATION
Full name: ELIDAH WANJIRU
Email Contact at Filer: FULFILLMENT@MIDDESK.COM
SEND ACKNOWLEDGEMENT TO
Contact name: MIDDESK, INC.
Mailing Address: 85 2 ND S TREET S UITE 710
City, State Zip Country: S AN FRANCISCO, CA 94105 USA
DEBTOR INFORMATION
Org. Name: C.W. KELLER & ASSOCIATES, LLC
Mailing Address: 9 HALE S PRING RD
City, State Zip Country: PLAISTOW, NH 03865-2313 USA
SECURED PARTY INFORMATION
Org. Name: INNOVATION R EFUNDS
Mailing Address: 4350 W ESTOWN PKWY 8 300
City, State Zip Country: WEST DES MOINES, IA 50266 USA
TRANSACTION TYPE: STANDARD
CUSTOMER REFERENCE: C1024064
COLLATERAL
ALL RIGHT, TITLE, INTEREST, CLAIMS AND DEMANDS OF DEBTOR IN AND TO THE FOLLOWING PROPERTY: (A) ALL ERC CLAIMS
(AS DEFINED BELOW); AND (B) ALL PROCEEDS AND COLLECTIONS WITH RESPECT TO ALL ERC CLAIMS (AS DEFINED BELOW) AND
ALL RECORDS AND DATA RELATING THERETO. AS USED HEREIN, (I) "ERC CLAIMS" MEANS AND INCLUDES ANY AND ALL CLAIMS
AND/OR REQUESTS FOR ERCS TO THE INTERNAL REVENUE SERVICE AND/OR ANY OTHER GOVERNMENTAL AND/OR QUASI-
GOVERNMENTAL AUTHORITY; AND (II) "ERCS" MEANS EMPLOYEE RETENTION TAX CREDITS MADE AVAILABLE TO EMPLOYERS
UNDER THE CORONAVIRUS AID, RELIEF, AND ECONOMIC SECURITY ACT (CARES ACT), AS MODIFIED.
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