Summary
applying same principles under Ohio Fraudulent Transfer Act
Summary of this case from In re DirksOpinion
Case No. 99-35768, (Jointly Administered), Adv. No. 99-3664.
April 25, 2003
ORDER GRANTING JUDGMENT IN ACCORDANCE WITH DECISION OF THE COURT ON THE PARTIES' RENEWED REQUESTS FOR SUMMARY JUDGMENT FOLLOWING REMAND
In accordance with the court's decision, filed simultaneously herewith, on the parties' renewed requests for summary judgment after remand, the court orders the following relief:
1) The third party funds, totaling $722,101.49, are excluded from Dayton Title Agency, Inc.'s bankruptcy estate. For this reason, the court grants summary judgment to Defendants, The White Family Companies, Inc. and Nelson Wenrick, with regard to the third party funds.
2) A dispute of fact exists regarding ownership of $20,747.13 in funds existing in the account at the time of the transfers to Defendants, The White Family Companies, Inc. and Nelson Wenrick. Consequently, the court denies summary judgment to all parties with regard to these funds. The issue must proceed to trial. The court schedules a pretrial conference on Tuesday, May 13, 2003 at 10:00 a.m. in its courtroom to establish a discovery deadline and trial date.
3) National City Bank's unsecured provisional loan to Dayton Title, amounting to $4,142,151.38, constitutes property of the estate under 11 U.S.C. § 541 and Dayton Title retains the power to recover the proceeds from Defendants, The White Family Companies, Inc. and Nelson Wenrick, as a fraudulent transfer.
4) With respect to the provisional loan, the court adopts its previous conclusion that Dayton Title meets every element for recovery of the proceeds under the Ohio Uniform Fraudulent Transfer Act ("UFTA"), Ohio Rev. Code §§ 1336.01 et seq. Consequently, summary judgment is granted to Plaintiff Dayton Title Agency, Inc., as Debtor-in-Possession, on its claim for recovery of the provisional loan proceeds from Defendants, The White Family Companies, Inc. and Nelson Wenrick. The court grants summary judgment to Dayton Title Agency, Inc for $2,762,814.97 against Defendant The White Family Companies, Inc. and for $1,379,336.41 against Defendant Nelson Wenrick.
5) The court determines National City Bank's separate motion for summary judgment on the same funds to be moot.
6) The court concludes that Dayton Title Agency, Inc. Business Trust does not meet the definition of a "business trust" for bankruptcy purposes and is ineligible to file a bankruptcy petition separate from Dayton Title Agency, Inc. Consequently, its bankruptcy case is dismissed.
7) The court grants prejudgment interest to Plaintiff Dayton Title Agency, Inc. from November 10, 1999 to the date of the judgment at the rate established in 28 U.S.C. § 1961(a) and court filing costs.