FRAUDULENT CONVEYANCES Nassau Academy of Law CLE Live ...

More documents

Recommendations

Info

443 F.3d 180 Page 1443 F.3d 180(Cite as: 443 F.3d 180)Westlaw Delivery Summary Report for DANIELS,JEFFREYDate/Time of Request:Wednesday, October 21, 2009 18:26 EasternClient Identifier:NALDatabase:CTACitation Text: 443 F.3d 180Lines: 825Documents: 1Images: 0The material accompanying this summary is subject to copyright. Usage is governed by contract with ThomsonReuters, West and their affiliates.United States Court of Appeals,Second Circuit.Lorraine G. GRACE, Individually and as Executrixof the Estate of Oliver R.Grace, Gerald I. White, Trustee U/W Morgan H.Grace, for the Marital DeductionTrust, Gerald I. White, Trustee U/W Morgan H.Grace for the Non-MaritalDeduction Trust and Gerald I. White, Trustee U/WMorgan H. Grace for theGeneration Skipping Trust and Gerald I. White, Trusteeof the John E. GraceTrust, individually and as stockholders of BriggsLeasing Corp., suing onbehalf of themselves and for the benefit of said corporationand for the classof all other stockholders of said corporation similarlysituated, Plaintiffs-Appellants,v.BANK LEUMI TRUST COMPANY OF NEWYORK, David Mack, the Estate of Leo V. Berger,Apex Marine Corp., Harvey Schwartz, Phyllis Sepeand Sigmund Kassap, Trustee ofthe Leo V. Berger Grantor Trust No. 1 as PersonalRepresentative of the Estateof Leo V. Berger, Non-Party Movants-Defendants-Appellees,Robert Rosenstock, Robert Genser, Edward Rosenstock,Briggs Leasing Corporationand Briggs Acquisition Corporation, Defendants.Docket Nos. 04-5824-CV(L), 04-5840(C0N), 04-5842-CV(CON).Argued: Sept. 12, 2005.Decided: April 4, 2006.Background: Former minority shareholders of corporation,as purported judgment creditors of corporationand its majority shareholder, brought fraudulentconveyance action against corporation's transferees.Transferees moved to vacate predicate judgmentagainst corporation and majority shareholder. TheUnited States District Court for the Eastern Districtof New York, Trager, J., granted motion, and subsequentlydismissed fraudulent conveyance claims.Former shareholders appealed.Holdings: The Court of Appeals, Pooler, CircuitJudge, held that:(1) transferees had standing to move to vacate predicatejudgment even though they had not been party toit;(2) motion to vacate was timely; and(3) predicate judgment was void, based on, inter alia,majority shareholder's having acted for corporationdespite conflict of interest.Affirmed.West Headnotes[1] Federal Courts 829170Bk829 Most Cited CasesDistrict court's decision on motion for relief fromjudgment is reviewed for abuse of discretion.Fed.Rules Civ.Proc.Rule 60(b), 28 U.S.C.A.[2] Federal Civil Procedure 2650170Ak2650 Most Cited CasesIn former minority shareholders' fraudulent conveyanceaction against corporation's transferees, brought© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
443 F.3d 180 Page 2443 F.3d 180(Cite as: 443 F.3d 180)in shareholders' capacity as purported judgmentcreditors of corporation and its majority shareholder,transferees had standing to move to vacate predicateunsatisfied judgment, even though they had not beenparty to it; purpose of stipulation upon which judgmenthad been based was to collect money fromtransferees, and corporation was judgment-proof andnot represented by counsel at time of judgment.Fed.Rules Civ.Proc.Rule 60(b), 28 U.S.C.A.;N.Y.McKinney's Debtor and Creditor Law § 273-a.[3] Federal Civil Procedure 2650170Ak2650 Most Cited CasesWhere plaintiff enters into settlement agreement withjudgment-proof, pro se defendant with intent at timeof settlement to collect from third party that allegedlyreceived fraudulent conveyances, and further, plaintiffattempts to use judgment as predicate for fraudulentconveyance action against third party, third partyis strongly affected by judgment and entitled tostanding to bring motion for relief from it. Fed.RulesCiv.Proc.Rule 60(b), 28 U.S.C.A.[4] Fraudulent Conveyances 8186k8 Most Cited CasesTo prevail on claim under New York fraudulent conveyancestatute, plaintiff must establish that: (1) conveyancewas made without fair consideration; (2)conveyor is defendant in action for money damages,or judgment in such action has been docketed againsthim; and (3) defendant has failed to satisfy judgment.N.Y.McKinney's Debtor and Creditor Law § 273-a.[5] Federal Civil Procedure 2658170Ak2658 Most Cited CasesIn former minority shareholders' fraudulent conveyanceaction against corporation's transferees, broughtin shareholders' capacity as purported judgmentcreditors of corporation and its majority shareholder,transferees' motion to vacate predicate judgment asvoid was timely, even though filed more than fiveyears after that judgment; shareholders themselveshad created significant delay by bringing fraudulentconveyance claim more than 15 years after subjectconveyances, and five years after unsatisfied judgment,and motion to vacate was reasonably filed inresponse to fraudulent conveyance claim. Fed.RulesCiv.Proc.Rule 60(b)(4), 28 U.S.C.A.;N.Y.McKinney's Debtor and Creditor Law § 273-a.[6] Constitutional Law 401292k4012 Most Cited Cases(Formerly 92k315)[6] Corporations 522101k522 Most Cited Cases[6] Corporations 542(1)101k542(1) Most Cited Cases[6] Federal Civil Procedure 2392170Ak2392 Most Cited CasesJudgment against corporation and corporation's nonattorneymajority shareholder, which was based onstipulation of settlement signed by majority shareholderon his own and corporation's behalf, was void,precluding its use as predicate for plaintiffs' fraudulentconveyance action against corporation's transferees;no evidentiary hearing had been held and no detailedaffidavits received, corporation's pro se statusprecluded its execution of stipulation, and corporationand majority shareholder had conflicting interestsand thus court's basing judgment on stipulationviolated corporation's due processrights. U.S.C.A. Const.Amend. 5; Fed.RulesCiv.Proc.Rules 55(b)(2), 60(b)(4).[7] Corporations 508101k508 Most Cited Cases[7] Federal Civil Procedure 2415170Ak2415 Most Cited CasesCorporation may not appear in federal lawsuit againstit except through attorney, and where corporationrepeatedly fails to appear by counsel, default judgmentmay be entered against it. Fed.RulesCiv.Proc.Rule 55, 28 U.S.C.A.*182 Sidney Bender and Risa Bender, LeventrittLewittes & Bender, New York, NY, for Plaintiffs-Appellants.Robert Fryd and Donna Levinsohn, WarshawBurstein Cohen Schlesinger & Kuh, LLP, New York,NY, for Non-Party Movant-Defendant-AppelleeBank Leumi Trust Company of New York.David T. Azrin and Harvey Schwartz, Gallet Dreyer& Berkey, LLP, New York, NY, for Non-Party© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 1 and 2:
Nassau Academy of LawCLE Live Class
Page 3 and 4:
McKinney's Debtor and Creditor Law
Page 5 and 6:
Page 7 and 8:
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18:
Page 19 and 20:
BAKER & HOSTETLER LLP45 Rockefeller
Page 21 and 22:
usiness of defendant Bernard L. Mad
Page 23 and 24:
BACKGROUND, THE TRUSTEE, AND STANDI
Page 25 and 26:
Madoff who received fraudulent tran
Page 27 and 28:
ased on fictitious profits and for
Page 29 and 30:
28. BLMIS funds were also used to p
Page 31 and 32:
Madoff, and her niece, Shana Madoff
Page 33 and 34:
42. Ruth Madoff was never an employ
Page 35 and 36:
FIRST CAUSE OF ACTIONTURNOVER AND A
Page 37 and 38:
66. At the time of each of the Two-
Page 39 and 40:
Transfers; (b) directing that the S
Page 41 and 42:
EIGHTH CAUSE OF ACTIONUNDISCOVERED
Page 43 and 44:
TENTH CAUSE OF ACTIONDISALLOWANCE O
Page 45 and 46:
111. Mrs. Madoff benefited from the
Page 47 and 48:
WHEREFORE, the Trustee respectfully
Page 49 and 50:
2(c)(3): (a) preserving the Subsequ
Page 51 and 52:
302 B.R. 760 Page 1302 B.R. 760(Cit
Page 53 and 54:
302 B.R. 760 Page 3302 B.R. 760(Cit
Page 55 and 56: 302 B.R. 760 Page 5302 B.R. 760(Cit
Page 61 and 62: 302 B.R. 760 Page 11302 B.R. 760(Ci
Page 71 and 72: 394 B.R. 721 Page 1394 B.R. 721, 50
Page 105: 397 B.R. 642 Page 14397 B.R. 642(Ci
Page 109 and 110: 443 F.3d 180 Page 4443 F.3d 180(Cit
Page 115 and 116: 443 F.3d 180 Page 10443 F.3d 180(Ci
Page 117 and 118: 443 F.3d 180 Page 12443 F.3d 180(Ci
Page 119 and 120: Page 2257 A.D.2d 526, 684 N.Y.S.2d
Page 125 and 126: 770 N.Y.S.2d 421 Page 22 A.D.3d 780
Page 127 and 128: Page 14 A.D.3d 495, 773 N.Y.S.2d 71
Page 129: Page 34 A.D.3d 495, 773 N.Y.S.2d 71
Page 132 and 133: 780 N.Y.S.2d 409 Page 29 A.D.3d 553
Page 138 and 139: Page 2991 F.2d 31(Cite as: 991 F.2d
Page 144 and 145: FRAUDULENT TRANFERENCESRonald M. Te
Page 146 and 147: Nursing home case_ Transfer of pers
Page 148 and 149: Sections 548 and 544 work in concer
Page 150 and 151: U.S. Supreme CourtBFP v. Resolution
Page 152 and 153: example, from net 15 to COD; or cha
Page 154 and 155: Bankruptcy Code Section§ 548. Frau
Page 156:
Ron Terenzi is a founding partner a
show all

FRAUDULENT CONVEYANCES Nassau Academy of Law CLE Live ...

Create successful ePaper yourself

Delete template?

Save as template?