Dzikowski v. Friedlander (In Re Friedlander Capital Management Corp.)

411 B.R. 434, 2009 Bankr. LEXIS 1195
CourtUnited States Bankruptcy Court, S.D. Florida.
DecidedApril 29, 2009
Docket19-11077
StatusPublished
Cited by8 cases

This text of 411 B.R. 434 (Dzikowski v. Friedlander (In Re Friedlander Capital Management Corp.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Florida. primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dzikowski v. Friedlander (In Re Friedlander Capital Management Corp.), 411 B.R. 434, 2009 Bankr. LEXIS 1195 (Fla. 2009).

Opinion

MEMORANDUM ORDER

PAUL G. HYMAN, Chief Judge.

This matter came before the Court for trial on August 27, 2008 and January 22, 2009. On May 23, 2005 Patricia Dzikow-ski, as trustee (“Trustee”) for Friedlander Capital Management Corporation (“Debt- or”), filed a Complaint to Avoid Fraudulent Transfers and for Monies Owed (“Complaint”) against Carolee Friedlander (“Ms. Friedlander”) and Carolee Designs, Inc. (“Designs”) (collectively, “Defendants”). The Complaint asserts the following three counts that seek: 1) avoidance of the Debtor’s alleged fraudulent transfers under 11 U.S.C. § 544 and Connecticut General Statute § 52-552e(a)(l); 2) avoidance of the Debtor’s alleged fraudulent transfers under 11 U.S.C. § 544 and Connecticut General Statute § 52-552e (a)(2); and 3) to the extent that the transfer of money to Defendants is not a fraudulent transfer, repayment of the transfer as a loan that is owed to the Debtor. At trial, the Trustee only pursued counts two and three. Also, at trial, Defendants’ counsel stated, and the Trustee did not argue otherwise, that the alleged fraudulent transfer at issue was to Ms. Friedlan-der and not Designs.

FINDINGS OF FACT

Burton G. Friedlander (“Mr. Friedlan-der”) was the sole shareholder of the Debtor, a Connecticut corporation that managed a pooled investment fund (“Pooled Account”), and provided investment services and advice. On May 23, 2003, the Debtor filed a voluntary Chapter 7 petition. Mr. Friedlander also operated two hedge funds: Friedlander International Limited (“FIL”), a company incorporated in the Bahamas for which the Debtor was the investment manager, and Fried-lander Limited Partnership (“FLP”), a limited partnership formed under the laws of Connecticut for which the Debtor was the general partner. Friedlander Management Limited (“FML”), a company incorporated in the Bahamas, was the manager of FIL. In December 2001, a United States District Court for the Southern District of New York appointed a receiver for FIL, FLP, and FML.

From 1994 through 2001, Mr. Friedlan-der solicited investments from individuals and entities which were deposited into the Pooled Account. Mr. Friedlander controlled the investment decisions and the movement of all funds in the Pooled Account. In early 1998, Mr. Friedlander began commingling the funds deposited into the Pooled Account with funds from FIL, FML, and FLP, as well as his personal funds, and used the commingled funds for personal expenses, including country club fees, personal legal fees, sailboat maintenance and dockage fees, and condominium fees. Additionally, in February 2000, Mr. Friedlander issued check number 164 for $29,766 from an account owned by Mr. Friedlander and Ms. Friedlander (the “Joint Account”) to reimburse the Debtor *439 for purchasing Mr. Friedlander 2000 U.S. Open tennis tournament tickets.

In June 2003, the Securities and Exchange Commission (the “SEC”) charged Mr. Friedlander with violations of federal securities laws stemming from his operation of the Pooled Account and the other hedge funds. Securities and Exchange Commission v. Friedlander, No. 01-CV-4596 (S.D.N.Y.). The same month, Mr. Friedlander was indicted for criminal violations of securities laws for the same conduct. United States v. Friedlander, No. 03-Crim-1172 (S.D.N.Y.). In May 2005, Mr. Friedlander plead guilty to one count of securities fraud relating to his operation of the Pooled Account. When pleading guilty, he stated, in part:

During the seven-year period, from 1994 to 2001, the funds of seven individuals and three entities were managed in a commingled pooled account. Beginning in 1996, I engaged in certain practices that operated to deceive investors whose money was maintained in the pool account fund. Specifically, I caused the investors to receive certain reports in the mail about their funds that I had reason to know were not accurate. These reports misrepresented the status and value of the investments.

Trial Tr. May 25, 2005 (Jt.Stip.Ex.3.) In May 2005, Mr. Friedlander paid restitution in the amount of $2,052,674.37 to the United States Attorney for the Southern District of New York for distribution to certain Pooled Account investors who did not otherwise receive a return on their investment. The restitution payment resulted in repayment of all sums due the Pooled Account investors.

Ms. Friedlander is Mr. Friedlander’s second ex-wife, having divorced him in 2005, and was the sole shareholder of Designs, a Connecticut corporation that was sold prior to the Debtor’s bankruptcy. At issue in this case, is the Debtor’s alleged fraudulent transfer of $500,000 to Ms. Friedlander. On or about March 14, 2001, Mr. Friedlander withdrew $500,000 from the Debtor’s account to provide Ms. Fried-lander a one-month, interest-free loan, which was deposited into an account owned by Designs. On April 11, 2001, in order to repay the loan, Ms. Friedlander wired $500,000 from an account owned by Designs to the Joint Account. Thereafter, in April 2001, Mr. Friedlander transferred $50,000 from the Joint Account to the Debtor’s account. The parties agree that in April 2001, Mr. Friedlander paid $374,680.22 of the remaining $450,000 to his first ex-wife to settle a family court judgment against him.

It is undisputed that Ms. Friedlander never withdrew funds from the Joint Account. It is likewise undisputed that except for the April 11, 2001 deposit of $500,000, Ms. Friedlander never deposited funds into the Joint Account. The parties agree that Ms. Friedlander believed that the $500,000 loan was from Mr. Friedlan-der and that Ms. Friedlander believed she repaid the loan when she deposited $500,000 into the Joint Account.

According to the docket and claims register for the Debtor’s bankruptcy case, twelve proof of claims were filed in the Debtor’s bankruptcy case, of which four were disallowed and one was withdrawn. The remaining seven claims consist of a landlord claim, a claim filed by the receiver appointed to FIL, a claim filed by the receiver appointed by FML, and four Pooled Account investor’s claims. The parties agree that no documentation has been attached to the landlord claim to indicate prima facie validity of the landlord’s claim for unpaid rent. The Trustee has objected to the claims filed by FIL and FML on the basis that the claims are unliquidated, and appear to include unspecified damages *440 which are not reimbursement for actual pecuniary loss. The parties agree that the four claimants who were Pooled Account investors have received restitution payments. At trial on August 27, 2008, the Trustee did not dispute the Defendants’ attorney’s statement that these four claimants received what the SEC and the United States Attorney determined to be full compensation.

CONCLUSIONS OF LAW

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157(a). This is a core proceeding pursuant to § 157(b)(2)(H).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
411 B.R. 434, 2009 Bankr. LEXIS 1195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dzikowski-v-friedlander-in-re-friedlander-capital-management-corp-flsb-2009.