Liberte Capital Group, LLC v. Capwill

248 F. App'x 650
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 20, 2007
Docket06-3501
StatusUnpublished
Cited by20 cases

This text of 248 F. App'x 650 (Liberte Capital Group, LLC v. Capwill) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Liberte Capital Group, LLC v. Capwill, 248 F. App'x 650 (6th Cir. 2007).

Opinions

OPINION

McKEAGUE, Circuit Judge.

Investors lost substantial amounts of their monies due to the fact that the insurance policies underlying the viatical investments in which they had invested were procured through fraud. A receiver was appointed over the entity that served as escrow agent and fiduciary for companies that marketed the viatical settlements, Liberte and Alpha. Later, the receiver’s authority was expanded such that “all claims against former agents and/or brokers of Alpha and Liberte for damages in contract or tort actions arising out of claims by investors are deemed to be assets of the receivership estates and must be filed by the Receiver[ ], if at all.” The investors sought a declaratory judgment that they, and not the receiver, had the right to pursue the arbitration claims they had filed against their broker-dealers alleging fraud and misrepresentation inducing their investments. On cross motions for summary judgment, the district court granted the receiver’s motion, authorizing him to pursue the arbitration claims and declaring that if the investors continue to pursue the litigation, any proceeds will be added to the receivership estate and will be distributed pro rata to the entire class of investors harmed. For the reasons stated below, we REVERSE.

I. BACKGROUND

In 1997, James A. Capwill and Viatical Escrow Services (“VES”) agreed to serve as escrow agents for the handling of investment funds in Liberte Capital Group (“Liberte”) and Alpha Capital Group (“Alpha”) viatical settlements.1 Liberte and Alpha marketed viatical life insurance policies to investors, using VES to provide trustee services in handling monies received from investors to buy polices and to service the payment of premiums. Liberte Capital Group, LLC v. Capwill, 462 F.3d 543, 547 (6th Cir.2006). Liberte and Alpha purchased viatical insurance policies from insurance companies or brokerage firms, marketed the investments, and then contracted with agents to locate and resell the policies to investors. Capital Fund Leasing (“CFL”) invested funds obtained by VES in the latter’s function as escrow agent and fiduciary for companies that marketed viatical settlements. Id.

Many of the insurance policies underlying the viatical investments that Liberte and Alpha had marketed were procured through fraud. Liberte Capital, 462 F.3d at 547. For example, some of the viators misrepresented their health in order to obtain coverage. Additionally, Capwill and his escrow companies embezzled or absconded with the funds they held in escrow with which they were required to pay premiums to maintain the policies and pay out death benefits to investors upon the matched viator’s death. Accordingly, in [652]*6521999, Liberte sued Capwill, VES, and CFL in federal district court, alleging, inter alia, that they misappropriated escrow funds. The district court appointed a receiver “to oversee and to administer the business and assets of VES and CFL ... to take and maintain exclusive and complete custody, control and possession of all the assets belonging to VES and CFL.”2 In November 1999, the scope of the receivership was extended

to cover all interests in any and all insurance policies funded by investors which Liberte Capital, LLC or Alpha Capital, LLC contacted, which are or were in the name of James A. Capwill, Capwill & Co., CWN Group or any other name, either as nominee owner or as trustee ... for the purpose of managing and administering insurance policies in which one of the foregoing either is named as owner, beneficiary or Trustee, including, but is not limited to death claims, rescission issues, premium payment issues and anything else reasonably necessary in the management of these insurance policies.

Later, the scope of the receivership extended yet again to cover Capwill’s assets.

In December 2000, Ursula Linke and Angelo Salcedo, purchasers of Liberte viaticáis, filed arbitration claims with the National Association of Securities Dealers, Inc. (“NASD”) against Washington Square Securities, Inc. (“WSSI”), their broker-dealer, alleging that WSSI was liable for its representatives’ fraudulently inducing them to purchase Liberte viaticáis. On January 30, 2001, John Lazar, a Liberte investor who had intervened in the action, moved for class certification, and the district court granted the motion. The motion was granted in order to evaluate Liberte policies and to help oversee decisions concerning the sale or rescission of policies and the proper allocation of proceeds between Liberte and Alpha. On July 15, 2002, Linke and Salcedo filed a complaint against their broker-dealer, WSSI in federal district court. They sought a determination that the arbitration claims they had filed against WSSI before the NASD were not encompassed within the Liberte class action. In September 2002, Larry Thompson filed an arbitration claim against his broker-dealer, Carillon Investments, Inc. (“Carillon”), alleging that its representatives had fraudulently induced him to purchase Liberte investments. The receiver initially approved of these arbitration claims against WSSI and Carillon, and he stated that the arbitration proceedings did not interfere with his duties.

In 2002, however, the receiver began initiating suits to recover the lost investments and the return of commissions. On October 2, 2002, the district court stated in an order that it “is of the view that all claims against former agents and/or brokers of Alpha and Liberte for damages in contract or tort actions arising out of claims by investors are deemed to be assets of the receivership estates and must be filed by the Receivers, if at all.” J.A. at 1162. Along these lines, on November 7, 2002, the receivership court adopted a pro rata method of disbursement for the Liberte class. We affirmed the disbursement method in Liberte Capital Group, LLC v. Capwill, 148 Fed.Appx. 426, 437 (6th Cir.2005), but we did not discuss the import of the October 2, 2002 order.

[653]*653On January 28, 2008, Thompson moved to intervene in the receivership proceedings, seeking a declaration that his arbitration claim belonged to him and that it was not a part of the receivership estate. On April 22, 2003, the receivers filed a motion for an additional statement of authority. Recognizing that the matter “has developed well beyond the original conception of the parties and the Court both in terms of its breadth and complexity,” the district court ordered that the receivers “are empowered to represent and pursue the interests of investors directly in keeping with the ultimate goal of maximizing the Estates for their benefit.” JA. at 1610-11.

On June 26, 2003, the district court determined that the arbitration claims of Linke and Salcedo against WSSI were “distinct from the class claims” and granted Linke’s and Salcedo’s motion regarding arbitrability. J.A. at 1651. However, in so holding, the district court also referenced its October 2, 2002, and April 22, 2003, orders, stating that it had “modified the duties of the Receivers” and that “in addition to their general charge of marshaling assets on behalf of the receivership estates, the Receivers have and continue to file cases against, inter alia, brokerage houses, banks, and insurance agents.” J.A. at 1649-50. We affirmed the arbitrability ruling in Liberte Capital Group, LLC v. Capwill, 148 Fed.Appx. 413, 418 (6th Cir.2005).3

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248 F. App'x 650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liberte-capital-group-llc-v-capwill-ca6-2007.