Receivership Estate, as Legal Identity Separate and Distinct From Receivership Entity, is Creditor of Receivership Entity for Purposes of Fraudulent Transfer Claims

Most court have adopted the traditional view that a receiver stands in the shoes of the entity that has been placed in receivership such that it can only assert those claims that the entity could have asserted.  See Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995); Eberhard v. Marcu, 530 F.3d 122 (2d Cir. 2008); Carney v. Montes, 2014 WL 671263 at *8 (D. Conn. Feb. 21, 2014) (citing Scholes v. Lehmann and Eberhard v. Marcu).  Nevertheless, courts have determined that a receivership estate has a legal identity that is separate and distinct from the receivership entity.  See Wiand v. Lee, 753 F.3d 1194, 1202-03 (11th Cir. 2014) (“Although the receivership entities were the instruments of [their principal’s] fraud, they were distinct legal entities whose purpose was to use client funds to invest in securities, and they were harmed when [the principal] diverted the funds for unauthorized uses.”); see also Wolff v. Cash 4 Titles, 351 F.3d 1348, n. 19 (11th Cir. 2003) (“In oral argument, appellants’s [sic] counsel suggested that we treat Stenger as a party defendant, ‘as receiver for the defendant entities in the class action.’ We are not persuaded. Nothing in appellants’ brief warranted the suggestion that a defendant’s receiver is necessarily a proxy for the defendant in a case. Various sources hold, to the contrary, that receivers have legal identities distinct from the entities whose assets they are charged with marshaling.”)

Such determinations have served as the basis for courts’ deeming a receivership estate to be a creditor of the receivership entity for purposes of claims held by creditors of the entity, such as fraudulent transfer claims.  See Wiand v. Lee, 753 F.3d at 1202-03 (“Applying [Scholes v.] Lehmann to FUFTA, the receivership entities became ‘creditors’ of [principal] at the time he made the transfers of profits to [defendant] and others because, as FUFTA requires, they had a ‘claim’ against [the principal]. They had a ‘claim’ against [the principal] because he harmed the corporations by transferring assets rightfully belonging to the corporations and their investors in breach of his fiduciary duties, and a ‘claim’ under FUFTA includes ‘any right to payment’ including a contingent, legal, or equitable right to payment. . . . The Receiver’s claim thus fits within the statutory language of FUFTA, which requires the existence of a creditor and a debtor.”) (footnote omitted); see also Carney v. Montes, 2014 WL 671263 at *8 (addressing whether the receiver could bring a fraudulent transfer action, the court stated that it “will turn on whether [the receiver] represents the transferor only or also represents a creditor of the transferor. . . . [W]hen transfers are made by corporations that are completely controlled by the wrongdoer, ‘the transfers were, in essence, coerced.’ . . .  The corporation then becomes the creditor in the coerced transaction and a receiver for the coerced corporation has standing to claw back the transfers. Here, . . . the fraudulent transfer claims are brought on behalf of receivership entities, which are creditors of the transferor[.]”)

As such, a receiver has standing to pursue, and is not barred by the in pari delicto doctrine from pursuing, fraudulent transfer claims against a transferee of the receivership entity.  See Scholes v. Lehmann, 56 F.3d 750 (declining to impute the wrongdoer’s bad acts to a subsequent independent receiver to bar the receiver’s recovery claims based on the in pari delicto doctrine, because a receiver is an involuntary successor appointed by a court of equity to protect the interests of defrauded investors, and while “the wrongdoer must not be allowed to profit from his wrong . . . [t]hat reason falls out now that [the wrongdoer] has been ousted from control of an beneficial interest in the corporations. The appointment of the receiver removed the wrong-doer from the scene. The corporations were no more [the wrongdoer’s] evil zombies. Freed from his spell, they became entitled to the return of the moneys – for the benefit not of [the wrongdoer] but of innocent investors . . . .”); cf., Eberhard v. Marcu, 530 F.3d 122 (2d Cir. 2008) (adopting Scholes v. Lehmann and holding that a receiver appointed in an SEC enforcement action has standing to pursue a fraudulent conveyance claim and “that a receiver’s standing to bring a fraudulent conveyance claim will turn on whether he represents the transferor only or also represents a creditor of the transferor”, but distinguishing Scholes on the basis that the receiver there was appointed for the corporations in receivership who held the claims, whereas the receiver here had been appointed only for the assets of the individual defendant who caused the fraud, and not for any of the corporations in which he had an interest and that conveyed the assets, and ultimately determining that the receiver of the individual defendant’s assets lacked standing to bring the fraudulent conveyance claim); see also Carney v. Montes, 2014 WL 671263 at *8 (concluding that receiver had standing to bring fraudulent transfer action on behalf of receivership estate as creditor of entities before they were placed in receivership).