Tag «11th Circuit»

Ponzi Scheme Trustee Has Standing to Pursue Recovery Claims, and Is Not Barred by in Pari Delicto Doctrine, in Sixth Circuit

Ponzi Scheme Trustee Has Standing to Pursue Recovery Claims, and Is Not Barred by in Pari Delicto Doctrine, in Sixth Circuit, Which Joins Third, Eighth and Eleventh Circuits in Declining to Follow Second Circuit’s Wagoner Rule In 1991, the Second Circuit, in Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 120 (2d Cir. 1991), held …

A Receiver Has Standing to Pursue Fraudulent Transfer Claims on Behalf of Receivership Entity

As set forth in Scholes v. Lehmann and adopted by courts across the country, a Receiver has standing to pursue fraudulent transfer claims because the receivership entity in whose shoes the Receiver stands is deemed to be creditor of the Ponzi scheme or other fraudulent enterprise that was placed in receivership.  That seminal case and its ever-growing progeny …

Debtor/Transferor’s Actual Intent to Defraud May be Established Through Ponzi Scheme Presumption Based on Fraud Determination in Prior Action Against Debtor/Transferor

Application of the Ponzi Scheme Presumption To satisfy the intent element of a claim for actual fraudulent transfer for purposes of surviving a motion to dismiss, the plaintiff must either plead the facts establishing the debtor’s intent to hinder, delay or defraud its creditors with particularity (in Federal Court, pursuant to Rule 9 of the …

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. …

A Receivership Court Has Exclusive Jurisdiction Over the Receivership Property but Not Necessarily the Receivership Defendant

A court that appoints a receiver over property of a defendant typically has exclusive jurisdiction over such property and imposes a stay against commencing any litigation that would affect it.  A plaintiff that seeks to file suit to recover, impair, or affect property of a receivership estate or otherwise in the hand of the receiver …