Berman v. Leary (In re Leary)

601 B.R. 307
United States Bankruptcy Court, D. Connecticut·Decided April 12, 2019·No. Case No. 15-20377 (JAM); Adv. Pro. No. 15-02039 (JAM)·Published·Cited by 2 cases

Opinion

Julie A. Manning, Chief United States Bankruptcy Judge

I. Introduction

On October 11 and 25, 2017, a trial was held on the complaint (the "Complaint"), filed by James Berman, the Chapter 7 Trustee (the "Plaintiff"). The Complaint seeks to have the debt evidenced by a certain stipulated judgment (the "Stipulated Judgment"),1 entered against Jon C. Leary (the "Defendant"), in the amount of $ 1,189,250.00, declared nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) and § 523(a)(6). The Plaintiff alleges that the Stipulated Judgment debt arises out of the Defendant's fraudulent activities in connection with a Ponzi scheme operated by Michael S. Goldberg (the "Goldberg Scheme"), and is therefore nondischargeable based on the Defendant's "actual fraud" and "willful and malicious conduct".2 The allegations in the Complaint are predicated upon the Amended Proposed Findings of Facts and Conclusions of Law issued by this Court in the Goldberg Adversary Proceeding (the "Amended Findings"),3 which were accepted by the United States District Court for the District of Connecticut with minor exceptions not relevant here (the "District Court Order").4 Each party called witnesses and introduced exhibits during trial.5 For the reasons that follow, judgment will enter in favor of the Plaintiff and against the Defendant.

II. Jurisdiction

The United States District Court for the District of Connecticut has jurisdiction over this matter pursuant to *31028 U.S.C. § 1334(b). This Court has authority to hear and determine this matter pursuant to 28 U.S.C. § 157(a) and the Order of Reference of the United States District Court for the District of Connecticut dated September 21, 1984. The instant action is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A) and (b)(2)(I).

III. Findings of Fact and Conclusions of Law

Pursuant to Federal Rule of Civil Procedure 52, made applicable to this adversary proceeding through Federal Rule of Bankruptcy Procedure 7052, the following are the Court's findings of fact and conclusions of law:

A. FINDINGS OF FACT

The Goldberg Scheme

1. For a period of about twelve years, Michael S. Goldberg ("Mr. Goldberg"), and Michael S. Goldberg, LLC, occasionally d/b/a Acquisitions Unlimited Group ("AUG"), which was controlled by Mr. Goldberg (collectively, the "Goldberg Debtors"), operated the Goldberg Scheme, a pure Ponzi scheme with no legitimate business purpose. See Pre-trial Stipulation dated October 10, 2017 (the "Stipulation," Adv. Proc. No. 15-02039, ECF No. 64), ¶ 1; Amended Findings p. 4.

2. The Goldberg Scheme did not involve any legitimate, actual business, or investment activity by the Goldberg Debtors. In fact, the only revenues derived in connection with the Goldberg Scheme were the moneys the Goldberg Debtors collected from a succession of new investors, whose money was then used to repay the earlier investors their original investment and guaranteed profits. Amended Findings pp. 4-5, 16; Plaintiff's Exh. D ¶ 11. The transfers by the Goldberg Debtors in furtherance of the Goldberg Scheme were made with actual fraudulent intent. Amended Findings pp. 62-63.

3. The Goldberg Scheme consisted of two types of business deals: 1) "Diamond Liquidation Deals"; 2) "Chase Asset Deals". Amended Findings p. 17.

4. The Diamond Liquidation Deals purported to give the Goldberg Debtors access to purchase diamonds at very low wholesale prices and pay investors a rate of return of approximately twenty percent (20%) every sixty (60) days, while purporting to grant investors a security interest in the diamonds. Plaintiff's Exh. D ¶ 3.

5. As evidenced by a fabricated "Chase Foreclosure Manifest," the Chase Asset Deals purportedly gave the Goldberg Debtors the contractual right to purchase foreclosed assets from Chase Manhattan Bank that the Goldberg Debtors would then sell, in prearranged sales, to large companies such as Bechtel Corporation and Swinerton Builders. Amended Findings p. 14. The Chase Asset Deals also provided that Chase Manhattan Bank was obligated to refund the full amount of the purchase price if the Goldberg Debtors were unable to re-sell the acquired assets to the ultimate buyer. Amended Findings p. 19; Plaintiff's Exh. D ¶ 7.

6. In his contracts with the investors in the Chase Asset Deals (the "Chase Contract(s)"),6 Mr. Goldberg pretended to use the investment funds to buy foreclosed or seized properties for resale and to give investors back their initial investment plus a 20% profit margin. The Chase Contracts were characterized to be between Mr. *311Goldberg representing AUG and the individually named investors. Amended Findings p. 15.

7. The Chase Contracts were generally for a period of 90 days, but many investors reinvested all of the proceeds from the earlier investment so that the effective annual returns would be substantially in excess of 100% from compounded profits. In many of the Chase Contracts, Mr. Goldberg represented that he , not the investor, would be responsible for paying any income tax owed by the investors on the profits generated (emphasis added). Amended Findings p. 16.

8. As word of these high returns on the purportedly risk and tax-free investments spread, an increasing number of investors (together, the "Sub-investors"), wanted in on the Goldberg Scheme. This increased investment activity was largely attributable to the Goldberg Debtors' "feeders" such as the Defendant's client, Edward Malley ("Mr. Malley"). These "feeders" had significant financial incentive to bring in potential investors to receive a percentage of the investment dollars they brought in and, in some instances, a finder's fee up to 10% on investments made by their investors. Amended Findings p. 17; Plaintiff's Exh. D ¶¶ 13-14.

9. When major investors began demanding full payment on their investments, the Goldberg Debtors began making late payments while trying to find replacement investors. The late payments created increased concern among large investors. Amended Findings p. 17; Plaintiff's Exh. D ¶ 15.

10. Ultimately, Mr.

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Berman v. Leary (In re Leary), 601 B.R. 307 (Conn. 2019).

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