Merrill v. Abbott (In re Indep. Clearing House Co.)
APPEAL
77 B.R. 843 (D.Utah)
Trustee brought adversary proceeding to recover payments made to investors by debtor clearinghouses in connection with debtors' Ponzi scheme, and investors counterclaimed. The bankruptcy court entered default judgment on trustee's claims against some investors and denied those investors' motion to set aside the default. The defaulted investors appealed. The bankruptcy court subsequently granted trustee's motion for summary judgment on his 11 U.S.C. § 547 preference claim, and his 11 U.S.C. § 548 fraudulent transfer claim, but granted investors' motion for summary judgment on his third claim, and both sides appealed. The district court consolidated the appeals and held that: (1) trust that held investors' money in furtherance of a Ponzi scheme was a "business trust" eligible for chapter 11 relief; (2) debtors did not receive "reasonably equivalent value" for payments made to investors that exceeded their investments; (3) whether investors acted in good faith in accepting payments that did not exceed their investments was an issue of fact that precluded summary judgment for either party on trustee's third claim; (4) mere fact that debtors did not have legitimate or "ordinary" business did not mean that debtors' payments to investors were other than in "ordinary course of business" for purposes of a preference claim; and (5) denial of investors' motion to set aside default judgment and granting trustee's claims against them was an abuse of discretion.