FRAUDULENT CONVEYANCES Nassau Academy of Law CLE Live ...

394 B.R. 721 Page 13394 B.R. 721, 50 Bankr.Ct.Dec. 192(Cite as: 394 B.R. 721)mark, Inc. (In re Nirvana Rest. Inc.), 337 B.R.495, 508 (Bankr.S.D.N.Y.2006). Furthermore,the delivery of collateral to secure a nonavoidabledebt or obligation constitutes a transfersupported by "fair consideration" that cannot beset aside under the NYDCL. See id. at 502.*735 Fair consideration is given for property, or obligation,a. When in exchange for such property, or obligation, asa fair equivalent therefor, and in good faith, property isconveyed or an antecedent debt is satisfied, [FN14] orFN14. The "good faith" aspect of "fair consideration"is an "elusive concept" that "is hard to locate... in a statute in which the issue of intent isirrelevant." Sharp Int'l, 403 F.3d at 54 (internalquotation marks and citation omitted). Here, theAmended Complaint essentially alleges thatCharles and Matthew Fortgang siphoned moneyand property from the debtors, who they controlled,and transferred the siphoned assets to theFortgang Affiliates, who they also controlled.Lack of good faith would presumably existwhere the transferors and transferees are affiliatesengaged in the sort of scheme alleged in theAmended Complaint. The Amended Complaintalso alleges that MFS was using some of the Pre-Petition Bank debt to repay debts owed to theFortgang Affiliates while its own financial conditionwas deteriorating. ( 41.) Insider preferencesby an insolvent transferor, even whenmade to satisfy valid debts, lack good faith. SeeSharp Int'l, 403 F.3d at 54.b. When such property, or obligation is received ingood faith to secure a present advance or antecedentdebt in amount not disproportionately small as comparedwith the value of the property, or obligation obtained.The bankruptcy law contains similar provisions. Under §548(a)(1)(B), the trustee must demonstrate that within twoyears of the petition date, (1) the debtor transferred aninterest in property; (2) the debtor was (a) insolvent at thetime of the transfer or became insolvent as a result of thetransfer, (b) was engaged in business or was about to engagein business for which the debtor's remaining propertywas an unreasonably small capital, or (c) intended toincur or believed that it would incur debts beyond its abilityto pay as they matured, and (3) the debtor received lessthan a reasonably equivalent value in exchange for suchtransfer. "Good faith" is not an element of the plaintiff'sproof of "reasonably equivalent value" under the BankruptcyCode and the Uniform Fraudulent Transfer Act,see Unif. Fraudulent Transfer Act, § 4 cmt. 2 (2006); instead,good faith is an affirmative defense that the transfereemay raise but the plaintiff need not plead. Silvermanv. Actrade Capital, Inc. (In re Actrade Fin. Techs. Ltd.),337 B.R. 791, 802 (Bankr.S.D.N.Y.2005).[14][15] Rule 9(b) does not apply to claims sounding inconstructive fraudulent transfer, Id. at 801 (collectingcases), and allegations of a constructive fraudulent transferare subject to less rigorous pleading requirements. Theplaintiff need not provide specific facts to support its allegations,see Erickson v. Pardus, --- U.S. ----, 127 S.Ct.2197, 2200, 167 L.Ed.2d 1081 (2007), and Rule 8(a) onlyrequires that the allegations "give the defendant fair noticeof what the plaintiff's claim is and the grounds uponwhich it rests." Swierkiewicz v. Sorema N.A., 534 U.S.506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)(quotingConley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d80 (1957)). As a result, some of the same courts that rejectedthe non-particularized allegations of intentionalfraudulent transfers upheld the sufficiency of the constructivefraudulent transfer claims based on the sameallegations. E.g., Fed. Nat'l Mortgage Ass'n, 2006 WL2802092, at *9 (allegations that aggregated and lumped aseries of transfers made over a three to five year periodand failed to identify the number of transfers, the specificdates of the transfers or the amounts of the transfers "aresufficient to satisfy the notice pleading standard of Rule 8,but, [with one exception], not the heightened pleadingstandard of Rule 9(b)."); *736Gindi, 1995 WL 347397, at*5-6 (allegations that the debtor made or incurred a nonparticularizedseries of transfers and obligations weresufficient to survive a motion to dismiss under Rule12(b)(6) but insufficient under Rule 9(b)); see Court-Appointed Receiver for Lancer Mgmt. Group LLC v.169838 Canada, Inc., No. 05-60235-CIV. (KAM), 2008WL 2262063, at *3 (S.D.Fla. May 30, 2008)(Rule 8(a)does not require the pleader to "allege the particular transferswhich each of the [defendants] received," or the capacityin which the defendants received them); Sullivan,373 F.Supp.2d at 307-08 (denying motion to dismiss constructivefraudulent transfer claims challenging nonparticularizedtransfers made to a family trust betweenlate 1997 and June 2000).Here, the Amended Complaint alleges that the debtorstransferred over $175 million to the Fortgang Affiliates© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.