Buchwald Capital Advisors LLC ex rel. MFS GUC Trust v. JP Morgan Chase Bank, N.A. (In re M. Fabrikant & Sons, Inc.)

480 B.R. 480
CourtDistrict Court, S.D. New York
DecidedOctober 1, 2012
DocketNos. 11 Civ. 2649 (RJS), 06-12737 (SMB), 06-12739(SMB)
StatusPublished
Cited by19 cases

This text of 480 B.R. 480 (Buchwald Capital Advisors LLC ex rel. MFS GUC Trust v. JP Morgan Chase Bank, N.A. (In re M. Fabrikant & Sons, Inc.)) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buchwald Capital Advisors LLC ex rel. MFS GUC Trust v. JP Morgan Chase Bank, N.A. (In re M. Fabrikant & Sons, Inc.), 480 B.R. 480 (S.D.N.Y. 2012).

Opinion

MEMORANDUM AND ORDER

RICHARD J. SULLIVAN, District Judge.

Buchwald Capital Advisors, LLC, which serves as Trustee of the MFS GUC Trust (“Appellant” or the “GUC Trust”), appeals from the January 25, 2011 Order of the Honorable Stuart M. Bernstein, Bankruptcy Judge, granting in part and denying in part the motion of the defendant banks1 (collectively, “Appellees” or the “Banks”) to dismiss Appellant’s Third Amended Complaint in its adversary proceeding. For the reasons set forth below, the Court affirms the Bankruptcy Court’s Order in its entirety.

I. BACKGROUND

Debtors M. Fabrikant & Sons (“MFS”) and Fabrikant-Leer International (“FLI”) (collectively, “Debtors”) each filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code on November 17, 2006. Both debtors are jewelry companies owned or controlled by members of the Fortgang family. In re M. Fabrikant & Sons, Inc. (“Fabrikant III”), 447 B.R. 170, 176-77 (Bankr.S.D.N.Y.2011). In 2007, the unsecured creditors’ committee, succeeded by Appellant pursuant to the Plan of Liquidation, filed suit against the Banks, secured creditors of the Debtors, alleging fraudulent conveyance. Specifically, Appellant alleges that the Banks participated [484]*484in a scheme whereby they made secured loans to Debtors, knowing that the proceeds of the loans would subsequently be fraudulently transferred to several companies (collectively, the “Affiliates”) that were owned or controlled by members of the Fortgang family but which, for the most part, did not own and were not owned by the Debtors. Additionally, Appellant seeks recovery of funds that it alleges MFS fraudulently transferred to various Affiliates and were subsequently reeonveyed to certain Banks. Finally, Appellant seeks recovery of alleged preferential payments made to the Banks within ninety days of the petition date. (See generally Third Amended Complaint (“TAC”)).

On October 10, 2008, the Bankruptcy Court granted in part and denied in part the Banks’ motion to dismiss the Amended Complaint. In re M. Fabrikant & Sons, Inc. (“Fabrikant I”), 394 B.R. 721 (Bankr.S.D.N.Y.2008). Thereafter, Appellant filed a Second Amended Complaint, which the Bankruptcy Court again dismissed in part. In re M. Fabrikant & Sons, Inc. (“Fabrikant II”), No. 06-12737(SMB), 2009 WL 3806683 (Bankr.S.D.N.Y. Nov.10, 2009). Appellants then filed their TAC. Once again, the Bankruptcy Court dismissed the TAC in part. Fabrikant III, 447 B.R. 170. Appellant appealed from Fabrikant III on April 19, 2011 and filed its brief on May 31, 2011. The appeal was fully submitted as of August 3, 2011.

II. Legal Standaeds

District courts are vested with appellate jurisdiction over bankruptcy court rulings pursuant to 28 U.S.C. § 158(a)(1). Specifically, “Congress intended to allow for immediate appeal in bankruptcy cases of orders that finally dispose of discrete disputes within the larger case.” In re Fugazy Exp., Inc., 982 F.2d 769, 775 (2d Cir.1992) (internal quotation marks omitted). Where, as here, a bankruptcy court has dismissed a complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b) (6), the district court reviews the bankruptcy court’s conclusions of law de novo. In re Bennett Funding Grp., 146 F.3d 136, 138 (2d Cir.1998).

Federal Rule of Civil Procedure 8(a) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” In order to survive a motion to dismiss, a complaint must “provide the grounds upon which his claim rests.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). Plaintiffs must also allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Conversely, a pleading that only offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. If the plaintiff “ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.” Id. In reviewing a motion to dismiss, pursuant to Rule 12(b)(6), the Court must accept as true all factual allegations in the Complaint and draw all reasonable inferences in favor of the plaintiff. ATSI Commc’ns, 493 F.3d at 98.

However, all averments of fraud must be “state[d] with particularity.” Fed.R.Civ.P. 9(b). Thus, to comply with the heightened pleading standard of Rule 9(b), a plaintiff must: “(1) detail the statements (or omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state [485]*485where and when the statements (or omissions) were made, and (4) explain why the statements (or omissions) are fraudulent.” Eternity Global Master Fund Ltd. v. Morgan Guar. Must Co., 375 F.3d 168, 187 (2d Cir.2004) (citing Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir.1996)). Additionally, although Rule 9(b) relaxes the specificity requirement for scienter, that “must not be mistaken for license to base claims of fraud on speculation and conclusory allegations.” In re Carter-Wallace, Inc., Sec. Litig., 220 F.3d 36, 39 (2d Cir.2000) (internal quotations and citations omitted). A complaint still must “allege facts that give rise to a strong inference of fraudulent intent.” Id.

III. DisCussion

The GUC Trust appeals the Bankruptcy Court’s dismissal of: (1) Counts I-IV (the “ ‘Collapsing’ Fraudulent Conveyance Claims”); (2) Counts VIII-X (the “Subsequent Fraudulent Conveyance Claims”) with respect to their claims of intentional fraudulent conveyance; (3) Count XI (the “Preference Claims”); and (4) Count XII (the “Disallowance Claim”) of the TAC. The Court addresses each in turn.

A. Counts I-IV: “Collapsing” Fraudulent Conveyance Claims

Counts I-IV of the TAC allege that, beginning in 2003, the Banks knowingly made numerous secured loans to Debtors, and Debtors subsequently reconveyed the proceeds of those loans to the Affiliates for less than reasonably equivalent value.

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Bluebook (online)
480 B.R. 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buchwald-capital-advisors-llc-ex-rel-mfs-guc-trust-v-jp-morgan-chase-nysd-2012.