Merrill v. Abbott (In re Indep. Clearing House Co.), 41 B.R. 985 (Bankr.D.Utah)
PUBLISHED
See 237.pdf
Chapter 11 debtors, the perpetrators of a massive Ponzi scheme, were subject to a confirmed plan of reorganization providing for substantive consolidation of the debtors, liquidation of all assets, and distribution to creditors based on priority. Trustee filed 2,000 adversary complaints against debtors' investors, seeking to recover (1) all payments made to them by debtors within 90 days of the petition filings, as preferences; (2) all payments, to the extent that they exceeded the amount of each investor's deposit with debtors, as fraudulent conveyances; and (3) all payments made by debtors to the investors, as fraudulent conveyances. On trustee's motion for summary judgment, the court found that there were no material issues of fact and proceeded to issue a ruling based on legal issues. Investors asserted that their investments were subject to a constructive trust and, therefore, never became estate property, but the court rejected this contention due to both the impossibility of tracing the investments, and because imposition of such a trust would nullify trustee's avoidance powers. The court dismissed trustee's third cause of action, concluding that all payments made outside of the preference period, except those that exceeded investors' investments, were not avoidable under any provision of the Bankruptcy Code. The court also held that any payments that exceeded investors' investment were not supported by reasonably equivalent value, and granted judgment in favor of trustee on his second claim for relief. Finally, the court ruled that all payments made within the preference period satisfied the elements of 11 U.S.C. § 547(b), and were not subject to the ordinary course of business exception. Trustee's first claim for relief was granted, including prejudgment interest at the legal rate. This decision was reversed, in part, by the en banc district court decision in 237.pdf.