Ivey v. First Citizens Bank & Trust Co.

539 B.R. 77, 2015 WL 5794546
CourtDistrict Court, M.D. North Carolina
DecidedOctober 1, 2015
DocketNo. 1:14CV1067
StatusPublished
Cited by7 cases

This text of 539 B.R. 77 (Ivey v. First Citizens Bank & Trust Co.) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ivey v. First Citizens Bank & Trust Co., 539 B.R. 77, 2015 WL 5794546 (M.D.N.C. 2015).

Opinion

AMENDED MEMORANDUM OPINION AND ORDER 1

OSTEEN, JR., District Judge.

This appeal is from a judgment of the United States Bankruptcy Court for the Middle District of North Carolina. Plaintiff Charles M. Ivey, III (“Plaintiff’) is appealing the Bankruptcy Court’s December 8, 2014 Order in which the Bankruptcy Court granted Defendant First Citizens Bank and Trust Company’s (“Defendant”) summary judgment motion. For the reasons set forth below, the Bankruptcy Court’s grant of summary judgment will be affirmed.

I. INTRODUCTION

This case arises out of the bankruptcy of James Edward Whitley (“Debtor”), who was engaged in a Ponzi scheme2 disguised [79]*79as a factoring business.3 (Notice of Appeal, Memorandum Opinion (“Mem. Op.”) (Doc. 1) at 5.)4 Plaintiff, as the Chapter 7 Trustee for the Bankruptcy Estate of Debtor, filed the action underlying the present appeal against Defendant. In an Adversary Proceeding, Plaintiff filed, a-Complaint against Defendant on April 27, 2012, asserting three claims: (1) civil conspiracy, (2) fraudulent transfer, and (3) unfair and deceptive trade practices. (Complaint (“Compl.”) (Doc. 5).) On June 27, 2012, Defendant filed a Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6). (Id., Attach.. (Doc. 5-8).) On February 7, 2013, the Bankruptcy Court granted Defendant’s motion to dismiss as to the two state law claims of (1) civil conspiracy and (2) unfair and deceptive trade practices. (Doc. 3-7.) Defendant subsequently filed a motion for summary judgment on the remaining claim on May 6, 2014. (Doc. 5-18.) In a Memorandum Opinion dated December 8, 2014, the Bankruptcy Court granted Defendant’s motion for summary judgment as to the remaining claim of fraudulent transfer. (Mem. Op. (Doc. 1) at 5-10.)

Plaintiff timely appealed the Bankruptcy Court’s grant of summary judgment to this court on December 18, 2014. (Notice of Appeal (Doc. 1).) Plaintiff filed a Brief in. support of his appeal on March 11, 2015. (Doc. 16.) Defendant filed a Brief (Doc. 18) on April 10, 2015, and Plaintiff filed a Reply (Doc. 19) on April 27, 2015. This action is thus ripe for review.

II. LEGAL STANDARD

. This appeal is brought pursuant to 28 U.S.C. § 158(a) and Rule 8001 of the Federal Rules of Bankruptcy Procedure. On appeal from the Bankruptcy Court, this court functions as an appellate court and reviews the Bankruptcy Court’s findings of fact for clear error and conclusions of law de novo. In re Merry-Go-Round Enters., Inc., 400 F.3d 219, 224 (4th Cir.2005). This court reviews the grant of summary judgment de novo. See Hager v. Gibson, 109 F.3d 201, 207 (4th Cir.1997). The district court may affirm, modify, or reverse a Bankruptcy Judge’s order, or remand with instructions for further proceedings. See 28 U.S.C. § 158(a) (2012); Fed. R. Bankr.P. 8001, 9002(2).

III. FACTUAL BACKGROUND

As part of a Ponzi scheme, Debtor utilized a personal bank account in his own name at one of Defendant’s branch banks to deposit funds. (Notice of Appeal (Doc. 1) at 5-6.) During the two years preceding the filing of involuntary Chapter 7 bankruptcy proceedings against Debtor, Debtor’s account at Defendant bank received eleven deposits at issue, six checks and five credits, via wire or telephone transfer, all of which allegedly relate to [80]*80Debtor’s Ponzi scheme activity.5 (Id. at 6.) Plaintiff asserts that these deposits, as transfers, can be avoided pursuant to 11 U.S.C. § 548(a)(1)(A) or, alternatively, pursuant to 11 U.S.C. § 544 and the North Carolina fraudulent transfer statutes. (Id.) Defendant argues summary judgment in its favor is appropriate based on two theories: (1) the transfers into the bank account were made by third parties into Debtor’s account and therefore are not transfers made by the Debtor, and (2) the transfers did not diminish the bankruptcy estate. (Def.’s Mot. for Summ. J. (Doc. 5-18) at 3.) In granting the motion for summary judgment, the Bankruptcy Court

[r]eject[ed] the proposition that the deposit of the checks by or on behalf of the Debtor and the subsequent processing of the checks and wire transfers did not result in transfers of property of the Debtor to the [Defendant], [but] the court agree[d] that the transfers to the [Defendant] that did occur involving the checks and money orders did not diminish the bankruptcy estate.

(Mem. Op. (Doc. 1) at 7.) For this reason, the Bankruptcy Court granted summary judgment in favor of Defendant.

Plaintiff filed the present appeal and submitted a single issue for this court to consider:

Whether, in order to survive summary judgment on his fraudulent transfer claims, the appellant-trustee must prove that the transfers of checks or wire transfers that were made to First Citizens diminished the assets of the bankruptcy estate?

(Br. of Appellant (Doc. 16) at 14.) Plaintiff goes on to argue that:

In requiring a diminution of estate assets, the Bankruptcy Court fashioned a new implied element, which is totally unsupported by the statutory text, and contrary to established Fourth Circuit precedent.

(Id. at 20.)

IV. ANALYSIS

This court concludes that the Bankruptcy Court did not err in citing the lack of diminution of the estate to support the grant of summary judgment.

In outlining what constitutes an avoidable transfer, Bankruptcy Code § 548(a)(1)(A), Fraudulent transfers and obligations, provides:

The trustee may avoid any transfer (including any transfer to or for the benefit of an insider under an employment contract) of an interest of the debtor in property, or any obligation (including any obligation to or for the benefit of an insider under an employment contract) incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily—
(A) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted;....

[81]*8111 U.S.C.

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539 B.R. 77, 2015 WL 5794546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ivey-v-first-citizens-bank-trust-co-ncmd-2015.