Filed October 19, 2012
In Merrill, a trustee urged the court to look outside the statutory scheme for transfer avoidance and recovery and permit him to “avoid all transfers to undertakers in a Ponzi scheme.” 77 B.R. at 855. But the court, motivated by the same reasons that prompted Congress to enact Section 546(e), refused to do so: “[T]o undo all of these transactions would cause incalculable harm to hundreds of people, at a staggering cost, for which no commensurate benefit would lie.
Filed January 14, 2011
Moreover, to the extent a transfer merely repaid a defendant’s undertaking, the debtor received not only a “reasonably equivalent value” but the exact same value – dollar for dollar. In re Indep. Clearing House, 77 B.R. at 857 (internal citations omitted). But as may be seen, (Order at 24-26), the court below ignored – indeed, trampled upon – this well-settled rule.
Filed August 23, 2013
The scheme collapsed, Independent Clearing House Co. declared bankruptcy, and multiple people were charged with various crimes, including racketeering. Three years later, this court elaborated on this definition in an en banc consolidated appeal from Judge Allen in the same case, In re Independent Clearing House Co., 77 B.R. 843 (D. Utah 1987). The consolidated appeals arose out of numerous claims the bankruptcy trustee had made in connection with recouping money from investors because of voidable preferences and fraudulent transfers.
Filed July 25, 2012
29 Id. at 1290 (quoting Merill v. Abbott (In re Independent Clearing House Co.), 77 B.R. 843 (Bankr. D. Utah 1987) (en banc)). Case 1:12-mc-00115-JSR Document 252 Filed 07/25/12 Page 19 of 48 11 satisfied an antecedent debt of [the debtor], which means [the debtor] received no value for the transfers. Since [the debtor] received no value for the transfers, a fortiori, it did not receive reasonably equivalent value, which brings the transfers within the requirements of 11 U.S.C. § 548(a)(2).30 Defendants’ position here is no different, because, like the defendants in Greiff, these Defendants can neither enforce “their claims for profits against Madoff Securities nor [show] that their claims share[] the same priority with those of other [customers].”
Filed July 9, 2015
Co. v. Campbell, 69 F.2d 667, 670-71 (5th Cir. 1934); Armstrong v. Collins, Nos. 01-Civ. 2437(PAC), 02 Civ. 2796(PAC), 02 Civ. 3620(PAC), 2010 WL 1141158, at *19 (S.D.N.Y. Mar. 24, 2010); Banner v. Kassow, 104 F.3d 352, 1996 WL 680760, at *3 (2d Cir. Nov. 22, 1996); In re Indep. Clearing House Co., 77 B.R. 843, 861-62 (D. Utah 1987). Case 3:10-cv-01973-N-BG Document 217 Filed 07/09/15 Page 7 of 11 PageID 23120 RECEIVER’S MOTION FOR JUDGMENT AS A MATTER OF LAW AND BRIEF IN SUPPORT 8 2014) (“To establish that it acted in good faith, [a creditor] must prove . . . that it lacked actual and constructive knowledge of the debtor’s fraud.”); Citizens Nat.
Filed July 7, 2011
59 H.S.W. Enters., Inc. v. Woo Lae Oak, Inc., 171 F. Supp. 2d 135 (S.D.N.Y. 2001)...........89 Hare & Chase, Inc. v. Nat’l Surety Co., 49 F.2d 447 (S.D.N.Y. 1931) ............................90 Horan v. Mason, 141 A.D. 89 (2d Dep’t 1910).................................................................89 In re Indep. Clearing House Co., 77 B.R. 843 (D. Utah 1987) .........................................67 In re J.P. Jeanneret Assocs., Inc., No. 09 Civ. 3907, 2011 U.S. Dist. LEXIS 9630 (S.D.N.Y. Jan. 31, 2011)........................................................................................82, 83 J.P. Morgan Chase v. Winnick, 406 F. Supp. 2d 247 (S.D.N.Y. 2005).............................70 Kirschner v. Bennett, 648 F. Supp. 2d 525 (S.D.N.Y. 2009).............................................70 Kirschner v. Bennett, No. 07 Civ. 8165, 2010 U.S. Dist. LEXIS 132344 (S.D.N.Y. June 3, 2010).......69, 70 In re Lehman Bros. Holdings Inc., No. 09-01045, 2011 WL 722601 (Bankr. S.D.N.Y. Feb. 22, 2011)............................56