UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1874
In Re: MARYLAND PROPERTY ASSOCIATES, INCORPORATED; MARYLAND
PROPERTY MANAGEMENT, INCORPORATED; MARYLAND PROPERTY GROUP,
INCORPORATED; MARYLAND PROPERTY SYSTEMS, INCORPORATED;
MARYLAND PROPERTY SERVICES, INCORPORATED,
Debtors.
----------------------------------------
CHARLES R. GOLDSTEIN, Trustee,
Plaintiff - Appellee,
v.
COLOMBO BANK, F.S.B.,
Defendant - Appellant.
No. 08-1251
In Re: MARYLAND PROPERTY ASSOCIATES, INCORPORATED; MARYLAND
PROPERTY MANAGEMENT, INCORPORATED; MARYLAND PROPERTY GROUP,
INCORPORATED; MARYLAND PROPERTY SYSTEMS, INCORPORATED;
MARYLAND PROPERTY SERVICES, INCORPORATED,
Debtors.
----------------------------------------
CHARLES R. GOLDSTEIN, Trustee,
Plaintiff - Appellant,
v.
COLOMBO BANK, F.S.B.,
Defendant - Appellee.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:07-cv-00514-WDQ; AP-00-05578; BK-98-53783-JS)
Argued: December 3, 2008 Decided: January 26, 2009
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit
Judges.
Affirmed in part and reversed in part by unpublished per curiam
opinion.
ARGUED: Stephen Warren Nichols, DECKELBAUM, OGENS & RAFTERY,
CHARTERED, Bethesda, Maryland, for Appellant/Cross-Appellee.
Lisa Bittle Tancredi, VENABLE, L.L.P., Baltimore, Maryland, for
Appellee/Cross-Appellant. ON BRIEF: Nelson Deckelbaum,
DECKELBAUM, OGENS & RAFTERY, CHARTERED, Bethesda, Maryland, for
Appellant/Cross-Appellee. Abby W. Clifton, VENABLE, L.L.P.,
Baltimore, Maryland, for Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In this case, a bankruptcy trustee seeks to avoid 24
financial transfers made by the bankruptcy debtors to Colombo
Bank, F.S.B. (“the Bank”). The bankruptcy court ruled that the
trustee could avoid the transfers and recover the assets from
the Bank. The Bank now appeals and the trustee cross-appeals
the district court’s order affirming in part, reversing in part,
and modifying the bankruptcy court order. We affirm in part and
reverse in part.
I.
The Bank is a small community savings bank with several
offices in Maryland. Monte Greenbaum is a former shareholder
and director of the Bank and the sole owner of the following
affiliated corporations: The Maryland Property Group, Inc.
(“MPG”), Maryland Property Associates, Inc. (“MPA”), Maryland
Property Management, Inc. (“MPM”), Maryland Group Management,
Inc. (“MGM”), Maryland Property Systems, Inc. (“MPS”), and
Maryland Property Services, Inc. (“MPServ”) (collectively, “the
Debtors”). These corporations were established to manage
housing projects that were located in the greater Baltimore,
Maryland area and owned by separate limited partnerships (“the
Partnerships”). The projects were subsidized by the United
States Department of Housing and Urban Development (“HUD”).
3
HUD required that the Partnerships maintain tenant security
deposits in accounts. From 1993 to 1998, Greenbaum embezzled
substantial monies from these accounts and from the projects’
operating accounts, moving the funds into his companies and then
disbursing them for, among other things, his own personal
benefit.
The Partnerships maintained separate operating accounts at
several financial institutions, including the Bank. As agent of
the Partnerships and owner of the companies managing their
properties, Greenbaum controlled all transactions with these
institutions. Having used this authority to embezzle the
Partnerships’ money, Greenbaum also used it to disguise the
embezzlement. In this regard, in 1994 he approached Thomas
Knowles, the Bank’s then-current president, about obtaining
loans. Greenbaum proposed that the loans would be secured by
the loan proceeds themselves, which the Bank would hold on
deposit in the Partnerships’ names. Greenbaum also gave Knowles
an instruction that Knowles had never received from another
customer: the accounts were not to bear interest. When Knowles
asked why Greenbaum would want to set up the proposed
arrangement, Greenbaum responded that he needed to “establish a
reserve,” and when Knowles asked how borrowed money could be
used to establish reserves, Greenbaum replied simply that he
could “establish the reserves that way.” J.A. 1394 (internal
4
quotation marks omitted). Knowles questioned Greenbaum no
further and undertook no further investigation.
Greenbaum then proceeded to borrow funds in the
Partnerships’ names (“the share loans”). The proceeds of each
loan were deposited with the Bank in the name of the Partnership
in whose name the loan was taken out, and the Bank placed a
“collateral hold” on each account to secure the loans. J.A.
1499. The existence of these accounts and the funds therein
helped Greenbaum conceal the fact that he had raided the
Partnerships’ other accounts.
Knowles also took several actions that helped Greenbaum
conceal the existence of the share loans, and hence Greenbaum’s
embezzlement. The accounts holding the tenant security deposits
— which Greenbaum had raided — needed to be confirmed for HUD
and the Debtors’ auditor. Customarily, such audit requests
originate from a customer’s accountant and are returned directly
to the accountant, to ensure the veracity of the response.
Here, however, Greenbaum himself brought the applicable form to
Knowles. Knowles knew that this was highly unusual but
nevertheless signed the form. 1 However, he did not complete the
1
Similar forms in later yearly audits were forged by
Greenbaum and not actually signed by any Bank employee.
5
parts asking for a description of any loans relating to the
accounts. Nor did he complete the section requesting a
description of the collateral for those loans. Moreover,
Knowles returned the form to Greenbaum, in contravention of the
form’s instruction that it should be returned to his accountant.
By his actions, Knowles concealed from the auditors and the
Partnerships the facts that there were outstanding loans to the
Partnerships and that the Bank held security interests in the
funds in the accounts.
Knowles also helped conceal the fact that Greenbaum was
voluntarily declining interest that otherwise would have accrued
on the accounts. When statements were issued that showed
interest accruing, Greenbaum contacted Knowles, and Knowles used
a word processor to produce dummy statements for Greenbaum that
did not show any interest.
Greenbaum used MPA’s operating account to make payments on
the share loans. And, when Greenbaum determined in July 1997
that the loans had served their purpose, he paid their balances
with a $238,751.61 check drawn on MPA’s operating account. The
funds MPA transferred were commingled funds that had been
received from various sources, including a bank in Florida.
MPA’s payment of the Partnerships’ loan obligations extinguished
the Bank’s security interest in the loan proceeds, leaving them
6
unencumbered in the Partnerships’ accounts. In November 1997,
the Bank wired the funds to MPA at MPA’s request.
In March 1998, the Partnerships filed involuntary
bankruptcy petitions against MPA, alleging that it had
misappropriated $790,617.95 in funds belonging to the
Partnerships. Charles Goldstein (“the Trustee”) was appointed
Chapter 7 Trustee. He, in turn, filed involuntary bankruptcy
petitions on MPA’s behalf against MPM, MPG, MGM, MPS, and
MPServ. With the Debtors’ consent, a bankruptcy court entered
Chapter 7 relief orders and ordered that all of the Debtors’
cases be jointly administered under MPA’s case.
In March 1999, Greenbaum was charged, by way of criminal
information, with conspiracy to violate the National Housing
Act, see 12 U.S.C.A. 1701, et seq. (West 2001 & Supp. 2008).
The information alleged that between January 1993 and March
1998, Greenbaum defrauded the federal government by embezzling
funds for his personal benefit from rent escrow accounts when
the housing projects were in a “non-surplus cash position,” J.A.
765 (internal quotation marks omitted); making false statements,
creating false documents, and forging signatures in connection
with the HUD-insured properties; fraudulently concealing
shortages in these accounts by obtaining loans on the
Partnerships’ behalf and placing the proceeds in the
Partnerships’ accounts; failing to report the existence of these
7
loans during audits of the accounts; and misappropriating
substantial portions of the security deposits and rent payments.
Greenbaum pleaded guilty pursuant to a plea agreement to one
count of conspiracy. He was sentenced to 18 months’
imprisonment and ordered to pay $900,000 in restitution to HUD.
The Trustee filed the instant complaint against the Bank in
the bankruptcy court in March 2000, requesting avoidance of 24
transfers made to the Bank, each of which had been accomplished
by checks drawn on MPA, MPG, or MGM’s accounts and signed by
Greenbaum. The transfers fall into three categories: amounts
paid pursuant to the share-loan scheme; amounts paid on loans
secured by a second mortgage on a residence of Greenbaum’s
located in Columbia, Maryland or by a mortgage on a condominium
of Greenbaum’s located in Ocean City, Maryland; and amounts paid
to the Bank for unexplained reasons. Count One sought avoidance
of each of the 24 transfers under the Maryland Uniform
Fraudulent Conveyance Act and a judgment in the amount of
$397,494.77. That amount represented the total amount of the
alleged transfers sought to be avoided, less $100,000. One of
the transfers sought to be avoided was made by check number 784,
which had a face amount of $172,000. The complaint specifically
alleged that “$72,000 was for the benefit not of MPA, but of
Monte Greenbaum.” J.A. 9. Count Two sought avoidance as
fraudulent conveyances of those 15 transfers that allegedly
8
occurred within one year before the filing of the involuntary
bankruptcy petitions, under section 548 of the Bankruptcy Code,
and requested a judgment of $278,768.32. Count Three sought
avoidance and recovery of transfers that were made within 90
days of the filing of the involuntary bankruptcy petitions and
that constituted preferential transfers, pursuant to Section 547
of the Bankruptcy Code, and requested a judgment of $3,597.62.
Before discussing further the proceedings below, we pause
to discuss the applicable statutes. Section 541 of the
Bankruptcy Code provides that a bankruptcy estate consists of
all “interests of the debtor in property.” 11 U.S.C.A. § 541(a)
(West 2004). Further, section 548 allows the bankruptcy trustee
to avoid certain transfers of such interests. See 11 U.S.C.A.
§ 548(a) (West 2004). Section 548 and the Maryland Uniform
Fraudulent Conveyance Act (“UFCA”) both permit avoidance of a
transfer if either (1) the transfer was made with the actual
intent to hinder, delay, or defraud a creditor (an “actually
fraudulent” transfer); or (2) the debtor was insolvent and
received less than reasonably equivalent value in exchange (a
“constructively fraudulent” transfer). See 11 U.S.C.A. § 548(a)
(West 2004); Md. Code Ann., Com. Law §§ 15-204, 15-207 (West
2005). Because the UFCA allows avoidance of transfers that
occurred in the three years preceding the bankruptcy petition,
see Md. Code Ann, Cts. & Jud. Proc. § 5-101 (West 2006), and the
9
version of the federal statute in effect when the petition in
this case was filed allowed avoidance only of transactions
occurring within one year prior to the filing of the petition,
see 11 U.S.C.A. § 548(a)(1), we will review the bankruptcy
court’s decisions under the UFCA, as the district court did.
The UFCA provides that a fraudulent conveyance may be set
aside, as is relevant here, “against any person except a
purchaser for fair consideration without knowledge of the fraud
at the time of the purchase.” Md. Code Ann., Com. Law § 15-209
(West 2005). Maryland courts, therefore, have held that to set
aside a conveyance as actually fraudulent, the party challenging
the conveyance must demonstrate that the grantor’s fraud was
known or participated in by the grantee. See Oles Envelope
Corp. v. Oles, 65 A.2d 899, 903 (Md. 1949). Proving a
transferee’s constructive knowledge of the transferor’s
fraudulent intent is sufficient in this regard. See Fick v.
Perpetual Title Co., 694 A.2d 138, 146 (Md. Ct. Spec. App.
1997). Having set out the applicable legal framework, we now
return to a description of the proceedings below, beginning with
the trial in bankruptcy court.
During his opening statement, counsel for the Trustee
acknowledged that his complaint sought the return of only
$72,000 of the $172,000 transfer made by check 784. He
explained that when he drafted the complaint, he did not believe
10
he was entitled to recover more. However, the Trustee stated
that following discovery and his requests for documents or an
explanation of how the Bank applied the funds transferred by
this check, he had come to doubt whether the Bank could
establish that more than $52,963.88 of the check was applied to
debts for which MPA could be liable. 2 Accordingly, the Trustee
reserved the right to conform his pleadings to the evidence
produced at trial, in the event that the Bank did not offer
adequate proof.
The Bank objected, arguing that even the Trustee’s pretrial
statement, filed two weeks before the trial, did not notify the
Bank that the Trustee would seek recovery of this additional
amount. The Bank argued that it was not prepared to defend
against a claim for such a recovery. The Trustee responded that
he had been exchanging documents with the Bank regarding check
784 until the week prior to trial, but that the Trustee had only
recently concluded that only $52,963.88 was applied to a loan
guaranteed by MPA whereas the Trustee earlier had believed the
amount to be $100,000.
Following the close of testimony, the Trustee argued that
his complaint as drafted sought avoidance of the entire transfer
2
Documents produced by the Bank indicated that $52,963.88
was applied to a loan that MPA had guaranteed.
11
effected by check 784. He nevertheless moved to amend his
complaint to the extent that he needed to do so to seek recovery
of $119,036.12 of that transfer. The bankruptcy court granted
the motion to amend over a renewed objection by the Bank. In so
doing, the court noted that the complaint, even as originally
drafted, sought to avoid the entire transfer as a fraudulent
conveyance, and therefore would have allowed suit for the entire
$172,000.
The bankruptcy court also allowed the Trustee to testify as
an expert witness on the issue of the Debtors’ insolvency during
the relevant time periods, as a forensic expert, and as an
expert on fraudulent conveyance issues. The Bank unsuccessfully
objected to the testimony on the ground that the Trustee was
neither listed as an expert in his initial disclosures pursuant
to Bankruptcy Rule 7026(a)(2) nor identified in response to an
interrogatory from the Bank seeking the identification of
experts.
Following the trial, the bankruptcy court found that the
other Debtors were merely alter egos of MPA and that MPA was
insolvent at all times from 1995 through the filing of the
bankruptcy petition. The court further found that the transfers
made during the 90 days prior to the filing of the petition
enabled the Bank to receive more than it would have received in
bankruptcy had the transfer not been made. Accordingly, the
12
court determined that those transfers were avoidable as
preferences.
The bankruptcy court also found that MPA had made the
challenged payments to hinder, delay, or defraud its creditors,
and that the Bank knew or should have known of the fraud.
Specifically, the court reasoned that the payments were made
with the intent to conceal from the Partnerships and HUD that
Greenbaum had misappropriated the funds from the escrow
accounts. The court found that the amounts transferred did not
constitute money stolen or fraudulently taken from the housing
project accounts and that even if they did, MPA continued to
retain an interest in it. The court also concluded that the
funds, even if stolen from the project accounts, were not
subject to a constructive trust because they had been commingled
with other funds.
The court also determined that the Bank did not apply the
funds transferred with check 784 to the share loans. The
bankruptcy court found that $52,963.88 of the funds had been
applied to a loan that MPA had guaranteed. Although John Lane,
the Bank president at the time of trial, had testified that the
remaining portion of check 784 — $119,036.12 — was applied to
the share loans, the court drew a negative inference against the
Bank from the Bank’s failure to produce supporting documentary
evidence. Thus, the court found that MPA received no fair
13
consideration for $119,036.12 of the transfer effected by check
784.
On this basis, the bankruptcy court entered an order and
judgment in favor of the Trustee against the Bank for
$444,523.89, plus pre-judgment interest from the date the
complaint was filed, with post-judgment interest allowed at the
federal rate.
The Bank appealed to the district court, arguing that the
bankruptcy court erred in permitting the Trustee to amend his
complaint at trial and to testify as an expert witness. The
Bank also argued that the court’s decision was not supported by
the evidence.
The district court ruled that the bankruptcy court did not
abuse its discretion in allowing the Trustee to amend his
pleadings to conform to the evidence at trial, reasoning that
the Bank was on notice at all times that the Trustee was seeking
to avoid all transfers made to the Bank within the relevant time
period. The court also ruled that the bankruptcy court was
within its discretion in allowing the Trustee to testify as an
expert. The court noted that the Bank neither disputed the
Trustee’s qualification to be an expert nor offered evidence
that MPA was solvent. The court also concluded that the Trustee
knew of MPA’s insolvency based on his examination of MPA’s books
and records and therefore could have testified as a mere fact
14
witness regarding insolvency regardless of whether he testified
as an expert. Thus, the court reasoned that any error in the
Trustee’s admission as an expert was harmless.
Regarding the bankruptcy court’s ruling that the transfers
made within 90 days before the petition could be avoided as
preferences, the district court concluded that the ruling could
not be affirmed because the bankruptcy court had not found that
the challenged payments were for an obligation of the Debtors’.
As for the avoidance of the share-loan payments as fraudulent
conveyances, the district court initially ruled that the
bankruptcy court erred in failing to credit the Bank for
payments that had the effect of discharging the Partnerships’
liability to the Bank for the share loans. It therefore
initially reversed the bankruptcy court ruling allowing
avoidance of payments attributable to the share-loan principal
and affirmed as to payments attributable to the share-loan
interest.
The court also vacated the bankruptcy court judgment as it
related to the non-share-loan payments. The district court
concluded that avoidance of these transfers could not be
affirmed under an actual-fraud theory because the bankruptcy
court had not found that Greenbaum actually intended to defraud
the Debtors’ creditors with these payments, nor had it found
that the Bank knew or should have known of such fraud. The
15
district court also ruled that avoidance could not be affirmed
under a constructive-fraud theory because the bankruptcy court
had not found that the non-share-loan transfers were made
without fair consideration.
The district court therefore affirmed the bankruptcy-court
judgment in the amount of the share-loan interest payments,
reversed the judgment in the amount of the share-loan principal
payments, vacated the remainder, and remanded to the bankruptcy
court for further proceedings.
Subsequently, however, the district court granted a request
by the Trustee for rehearing. Recognizing that MPA in fact did
have creditors besides the Partnerships, and that these other
creditors did not directly benefit from the share-loan principal
payments, the court concluded that the share-loan payments
actually did prejudice other creditors of MPA. 3 Thus,
reconsidering its initial ruling, the district court affirmed
the bankruptcy court’s judgment with respect to the share-loan
payments.
The Bank next appealed to this court. We dismissed the
appeal on the basis that the bankruptcy court judgment had been
3
The Trustee testified that the total amount of claims
against the bankruptcy estate is approximately $1.7 million,
$1.2 or $1.3 million of which was claimed by the Partnerships.
He testified that the size of the estate would be approximately
$1 million.
16
vacated and thus was not a final judgment from which appeal
could be taken. See In re Md. Prop. Assocs., Inc., 116 F. App’x
442 (4th Cir. 2004) (per curiam).
On remand, the bankruptcy court determined that each of the
challenged transfers was avoidable both as an actually
fraudulent conveyance and as a constructively fraudulent
conveyance. In support of this conclusion, the court found that
MPA, through Greenbaum, intended to defraud MPA’s creditors with
the non-share-loan payments; that the Bank knew or should have
known that the non-share-loan payments were actually fraudulent;
and that MPA did not receive fair consideration for the non-
share-loan payments.
The bankruptcy court also made more detailed findings
regarding the Bank’s culpability with respect to the share
loans. Whereas in its first opinion the bankruptcy court had
found that the Bank merely knew or should have known about
Greenbaum’s fraudulent share-loan scheme, in its opinion on
remand the bankruptcy court found that the Bank actually knew of
Greenbaum’s fraud and knowingly assisted him in it. The
bankruptcy court noted that Knowles “agreed to make unusual
loans, sign and deliver official documents in a fraudulent
manner[,] and conceal the nature of the share loans by creating
misleading interest statements.” J.A. 2082. The court also
17
found that Joel Fernebok, who was the Bank’s chairman, Knowles’s
superior, and Greenbaum’s friend, knew about the scheme.
The bankruptcy court further found that Greenbaum made the
non-share-loan transfers with the intent to hinder, delay, or
defraud the Debtors’ creditors and that the Bank knew or should
have known of that intent. The court noted that the Debtors’
insolvency, the lack of consideration for the transfers, the
Bank and the Debtors’ secrecy and concealment, and their
departures from usual business methods all demonstrated
Greenbaum’s intent. The court determined that the Bank knew of
or should have known of Greenbaum’s fraudulent intent regarding
the non-share-loan payments for several reasons. First, it was
aware of Greenbaum’s fraud with regard to the share-loan scheme.
Second, the checks given to the Bank for Greenbaum’s personal
obligations did not indicate that they were compensation to
Greenbaum for services rendered or otherwise for the benefit of
the Debtors. The bankruptcy court determined that these facts
put the Bank on constructive notice that Greenbaum was making
the transfers to thwart the Debtors’ creditors. The court
concluded that this notice precluded a finding that the Bank was
a good-faith transferee, and the court therefore allowed the
Trustee to avoid the payments under a theory of actual fraud.
The bankruptcy court further found that the Debtors had not
been obligated to make any payments to the Bank on the loan
18
secured by Greenbaum’s Ocean City condominium or the loan
secured by his Columbia residence. Because those loans were
personal obligations of Greenbaum, the court found that the
Debtors received no consideration in exchange for those
transfers, and the transfers could therefore be avoided under a
constructive-fraud theory as well.
The bankruptcy court also found two other of the transfers
— those made with checks 784 and 1254 — could be avoided under
this same theory. John Lane, the president of the Bank at the
time of trial, had testified that his investigation indicated
that $100,000 of the funds transferred with check 784 had been
applied to principal and interest on a share loan. The
bankruptcy court discredited this testimony because Lane did not
have first-hand knowledge and could not produce supporting
documentation. Thus, the court could not determine what the
funds transferred by check 784 were applied to, and it
determined that the Bank failed to prove that the funds were
transferred in exchange for fair consideration. The bankruptcy
court found that the transfer made with check 1254 was avoidable
as well. The court found that the Bank applied those funds to a
personal obligation of Greenbaum’s rather than to an obligation
of MPA’s.
19
For all of these reasons, the court ordered the recovery of
$444,523.89 from the Bank. 4
Again, the Bank appealed the bankruptcy court’s decision to
the district court, which affirmed in part and reversed in part.
Regarding the share-loan transfers, the district court
rejected an assertion by the Bank that the bankruptcy court’s
finding that the Bank had actual knowledge of Greenbaum’s
fraudulent intentions regarding the share-loan transfers
exceeded the scope of findings authorized by the remand. The
court also rejected an argument by the Bank that the bankruptcy
court erred in not giving the Bank credit for the loan proceeds
it released once the share loans were repaid. In this regard,
the district court reasoned that the loan proceeds, held in the
Partnerships’ names on deposit at the Bank, were the
Partnerships’ property. The court concluded that the Bank
should not receive a credit simply for wiring account holders
their funds. The court further noted that the fact the Bank’s
loans were the original source of these funds was immaterial.
4
This total included certain credits and deductions that
are not relevant here.
The bankruptcy court also determined, in contravention of
its earlier opinion, that because none of the challenged
payments were in payment of any antecedent debt owed by the
Debtors, none of the challenged payments could be avoided as
preferential transfers.
20
The district court then turned to the other challenged
transfers. The court ruled that avoidance of these transfers
could not be affirmed under an actual-fraud theory because the
evidence was not sufficient to support the bankruptcy court’s
finding that MPA made the non-share-loan-related transfers with
the actual intent to defraud. Addressing the theory of
constructive fraud, the district court ruled that the bankruptcy
court had improperly shifted the burden to the Bank to prove
that there was fair consideration for those payments. The court
concluded, however, that had the bankruptcy court placed the
burden on the Trustee to prove there was no fair consideration
for all of the non-share-loan payments, a finding that the
Trustee met that burden would not have been clearly erroneous
with regard to any of the transfers except the one made with
check 784. On this basis, the district court affirmed the
bankruptcy court’s ruling that these payments could be avoided
under a constructive-fraud theory. However, the district court
reversed the bankruptcy court’s ruling that the Trustee could
avoid $119,036.12 of the transfer accomplished with check 784,
concluding that no evidence would have supported a finding that
the Trustee proved that transfer was not made for fair
consideration.
21
The Bank now appeals and the Trustee cross-appeals from the
district court’s decision. 5
II.
The Bank contends that the district court erred in
affirming the bankruptcy court’s ruling allowing the Trustee to
avoid the share-loan payments on the basis of fraud. We
disagree.
Because the district court “act[ed] in its capacity as a
bankruptcy appellate court, we review the bankruptcy court’s
decision independently.” Banks v. Sallie Mae Servicing Corp.
(In re Banks), 299 F.3d 296, 300 (4th Cir. 2002). We review the
bankruptcy court’s factual findings for clear error and its
legal conclusions de novo. See Kielisch v. Educ. Credit Mgmt.
Corp. (In re Kielisch), 258 F.3d 315, 319 (4th Cir. 2001). “A
5
In its opinion on remand, the bankruptcy court had ordered
payment of 6.2% pre-judgment interest from the date of the
complaint and 5.1% post-judgment interest from the date of
issuance of the bankruptcy court opinion, January 31, 2007. The
district court modified this order to award pre-judgment
interest at 6.18% on the portion of the bankruptcy court’s
judgment that the district court affirmed in the first appeal,
post-judgment interest of 1.59% on that same portion from the
date of the first bankruptcy court judgment, 6.18% pre-judgment
interest on the affirmed portion of the second bankruptcy court
judgment up to the date of that judgment, and post-judgment
interest of 5.10% on that same portion from the date of the
second judgment. The Trustee cross-appeals the district court’s
modification of the bankruptcy court’s interest awards. We find
no reversible error and therefore affirm the modification.
22
finding is ‘clearly erroneous’ when although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed.” United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948).
A.
The Bank submits that because the sole purpose of
fraudulent conveyance law is to restore the transferor’s estate
to the condition in which it existed prior to the transfer, no
cause of action exists for a transfer that caused no prejudice
to the estate’s creditors. See, e.g., United States v.
Johnston, 245 F. Supp. 433, 440 (W.D. Ark. 1965) (explaining
that transfer will not be set aside as fraudulent conveyance if
it “does not operate to the prejudice of creditors’ rights”).
It contends that MPA’s use of its funds to repay the principal
amount of the share loans caused no prejudice to its creditors
because the payments reduced the liability MPA had to the
Partnerships, and because the Partnerships benefited from the
repayment of their loan obligations. The Bank also argues that
the bankruptcy court erred in failing to give it credit for
money that it paid to MPA after MPA paid off the Partnerships’
loans. We disagree with both arguments.
First, even if MPA’s payment of the Partnerships’ loans did
not prejudice the Partnerships, it prejudiced MPA’s other
23
creditors. That is so because the claims against MPA’s estate
exceeded the estate’s assets, so that less than 100% of each
claim would be paid. Even if MPA reduced its liability to the
Partnerships in the very amount that MPA paid off the share-loan
principal, those payments allowed the Partnerships to receive
100% payment for that liability. Had those funds remained
within MPA’s estate, it would have been available to pay the
claims arising from that liability at a less than 100% rate,
with a balance left over to pay more of the other claims. 6
6
The Bank argues that the prejudice to non-Partnership
creditors cannot be considered because the Trustee did not prove
that any non-Partnership creditors existed at the time of the
challenged transactions. Because this argument is raised for
the first time on appeal, it has been waived. See Muth v.
United States, 1 F.3d 246, 250 (4th Cir. 1993). In any event,
it is without merit as section 15-207 makes every conveyance
effected with the intent to hinder, delay, or defraud “present
or future creditors . . . fraudulent as to both present and
future creditors.” Md. Code Ann., Com. Law § 15-207 (emphasis
added).
The Bank also claims that the transfer made with check 1359
— the check that paid off the share loans — did not prejudice
MPA’s creditors because the transferred funds could not have
been subject to claims from MPA’s creditors even had those funds
not been used to pay off the Partnerships’ loans. The Bank
argues that the funds were stolen, and thus would have been
subject to a constructive trust, which would have put them out
of the reach of MPA’s creditors. This argument, however, is at
odds with an unchallenged finding of the bankruptcy court that
the funds could be reached by MPA’s creditors because they “came
from other sources as well [as the thefts from the
Partnerships], including the transfer from [a] bank in Florida
where there were no properties being managed by the debtor.”
J.A. 1247. Since the funds were commingled and could not be
traced, the bankruptcy court concluded, no constructive trust
(Continued)
24
Nor do we agree with the Bank that it is entitled to a
credit for wiring MPA the funds the Partnerships had on deposit
at the Bank. The Bank argues that, by wiring these funds “it in
effect gave back the principal portion of check 1359” — the
check that paid off the share loans. Brief of Appellant at 31.
The Bank contends that the district court was incorrect to
characterize that transaction as involving the Partnerships’
funds because MPA would have had no obligation to release the
wired funds to the Partnerships. It is the Bank’s position,
however, that is flawed. Once the share loans were paid off in
July 1997, the Partnerships owned — free of any security
interest — the funds that the Partnerships had borrowed and that
were held in their names on deposit at the Bank. The Bank’s
wiring of the Partnerships’ funds to their agent, MPA, did not
somehow divest the Partnerships of entitlement to their funds
and grant MPA an ownership interest in them. Thus, the Bank’s
argument that wiring the Partnerships’ funds to MPA made MPA
whole for MPA’s repayment of the share-loan principal — and
therefore entitled the Bank to a credit — is incorrect.
could be imposed. Because the Bank does not even acknowledge,
let alone challenge, this analysis, there is nothing for us to
review concerning this argument.
25
B.
As we have noted, the bankruptcy court found that Greenbaum
paid off the share loans to conceal his embezzlement. The Bank
challenges this finding, contending that even if Greenbaum’s
taking out the loans on the Partnerships’ behalf was fraudulent,
his repayment of them was not. The Bank notes that Greenbaum
testified that he was not yet under investigation at the time he
decided to pay off the loans. We conclude, however, that the
bankruptcy court’s finding was not clearly erroneous.
Greenbaum surely knew that if the existence of the share
loans were discovered by HUD or the Partnerships, his
embezzlement scheme — and MPA’s corresponding liability for the
embezzlement — might be uncovered. It was therefore reasonable
to infer that Greenbaum had MPA pay off the Partnerships’ loans
so that the loans would not be discovered and so that the
embezzlement would remain concealed.
C.
The Bank next argues that regardless of what Greenbaum’s
state of mind was regarding the repayment of the share loans,
the bankruptcy court clearly erred in finding that the Bank knew
of Greenbaum’s fraudulent intent, as the Bank contends was
required to support avoidance of the share-loan payments under
an actual-fraud theory. See Berger v. Hi-Gear Tire & Auto
Supply, Inc., 263 A.2d 507, 510 (Md. 1970) (holding that
26
grantor’s fraudulent intent “will not vitiate or impair a
conveyance unless the grantee participates in the fraudulent
intent”). 7 We hold that proof of the Bank’s constructive
knowledge of Greenbaum’s fraudulent intent was all that was
required. Alternatively, we conclude that the finding that the
Bank actually knew of Greenbaum’s fraud was not clearly
erroneous.
1.
The Bank first contends that the district court and the
bankruptcy court both erred in concluding that proof of
constructive knowledge by the Bank of Greenbaum’s fraudulent
intent would be sufficient to allow the Trustee to avoid the
share-loan transfers under an actual-fraud theory. In essence,
7
The Bank also argues that the bankruptcy court improperly
deviated from the district court’s mandate in finding on remand
that the Bank had actual knowledge of Greenbaum’s fraudulent
intent regarding the share-loan-related transfers. This
argument is curious because the Bank takes the position that
such a finding would be necessary to sustain the bankruptcy
court’s decision. Even if we agreed with the Bank that the
bankruptcy court exceeded the district court’s mandate in
finding that the Bank actually knew of Greenbaum’s fraud
regarding the share-loan payments, it would serve no purpose to
vacate the judgment and then return the case to the bankruptcy
court to consider the very factual issue that it had already
resolved. In any event, the fact that the Bank actually knew
about the share-loan scheme was relevant to the issue of whether
the Bank had constructive knowledge of Greenbaum’s fraudulent
intent regarding the non-share-loan payments, a subject clearly
within the scope of the remand.
27
the Bank maintains that the Maryland Court of Appeals would not
follow Fick, on which the lower courts relied. We disagree.
In Fick, the Maryland Court of Special Appeals confronted
the question of whether a grantee of property who gives fair
consideration must be shown to have actual, as opposed to
constructive, knowledge of the grantor’s fraudulent intent in
order for a party to successfully set aside the conveyance under
the UFCA. See Fick, 694 A.2d at 140. The court noted that
although some courts have required actual notice by the grantee,
most have held that constructive notice is sufficient. See id.
at 145. The court acknowledged that some language in certain
Maryland cases indicated that Maryland followed the minority
rule requiring actual knowledge. See id. at 145-46. The court
did not find those cases dispositive, however, explaining that
none “concerned an allegation by a creditor that a grantee had
constructive, as opposed to actual, knowledge of the grantor’s
fraud.” Id. at 146. And, the court cited older Maryland cases
that explicitly held that constructive knowledge by the grantee
was sufficient. See id. Although the court noted that these
cases were decided prior to the UFCA, it explained that the UFCA
was declaratory of the common law and of the Statute of
Elizabeth. See id. Thus, the court found the older cases
applicable. See id.
28
The Bank, relying primarily on the cases Fick explicitly
distinguished, argues that the Maryland Court of Appeals would
not follow Fick. Alternatively, the Bank argues that Fick does
not apply in a case in which constructive fraud was not
specifically alleged in the complaint. We disagree with both
arguments.
When predicting how a state’s highest court would decide a
legal issue, we view decisions of the state’s intermediate
appellate court as the best indication, other than decisions of
the highest court itself, of how the highest court would rule.
See Private Mort. Inv. Servs. v. Hotel and Club Assocs., Inc.,
296 F.3d 308, 312 (4th Cir. 2002). It is undisputed that the
cases on which the Bank relies for support were, unlike Fick,
cases in which a theory of constructive knowledge was not
asserted. The significance of that point is not that Fick
decided that constructive knowledge must be pleaded explicitly
in order to charge the grantee with knowledge under that theory.
Rather, it is that language in those other cases stating the
requirement that a grantee know of a grantor’s fraud should not
be read to exclude the possibility that the grantee would be
charged with such knowledge because he was on inquiry notice.
2.
Even if the Trustee were required to prove that the Bank
had actual knowledge of Greenbaum’s fraudulent intent regarding
29
the share-loan payments, we conclude that the bankruptcy court’s
finding of such knowledge was not clearly erroneous.
Greenbaum’s prior relationship with the Bank, Knowles’s failure
to make any significant investigation despite the obviously
unusual nature of the share loans, his participation in creating
misleading audit documents, and his production of dummy account
statements, taken together, are powerful evidence that the Bank
was aware of the share-loan scheme. The Bank concedes that this
evidence “might support a finding that Knowles knowingly
participated in the share loan scheme” were it not for other
facts that the Bank argues the bankruptcy court did not
explicitly consider. Brief of Appellant, at 44. In particular,
the Bank points out that Knowles and Greenbaum had not known
each other prior to the making of these loans; Knowles and
Greenbaum both testified that no Bank employee knew about
Greenbaum’s scheme; there was no evidence presented that any
bribes were paid to anyone connected with the Bank or that the
Bank or Knowles profited from the share loans other than the
interest that they generated; bank examiners concluded there was
nothing illegal about the loans; neither Knowles nor any Bank
employee was charged with any crime related to the share loans;
and although Knowles signed some of the account confirmations
early in the scheme, Greenbaum later forged Knowles’ signature
on some account confirmations.
30
In the end, the Bank argues that the only reasonable
inference to be drawn from the evidence as a whole was that
Knowles was not actually aware of Greenbaum’s scheme, but merely
“incredibly stupid.” Id. at 44. We do not agree that the
evidence compelled that conclusion. The lack of evidence of any
financial motive on the part of anyone at the Bank to help
Greenbaum execute his fraud and the lack of evidence of any
previous relationship between Greenbaum and Knowles might have
been more persuasive in the absence of the evidence that
Greenbaum was a former director and shareholder of the Bank.
That relationship certainly raised the possibility that Bank
employees might be sympathetic, or might be urged by their
superiors to be sympathetic, to assisting Greenbaum in his
fraudulent activities. And, the fact that various government
entities did not bring criminal proceedings against Bank
employees does not excuse the bankruptcy court from deciding for
itself, by a preponderance of the evidence, whether the Bank was
aware of Greenbaum’s fraudulent scheme. Finally, it is hard to
see the relevance of the fact that Greenbaum forged Knowles’s
signature on some account confirmations, in light of the fact
that Knowles willingly signed others. We therefore conclude
that the bankruptcy court’s finding that the Bank had actual
knowledge of Greenbaum’s fraudulent intent was not clearly
erroneous.
31
In sum, for all of the reasons discussed, we hold that the
district court properly affirmed the bankruptcy court’s ruling
allowing the Trustee to avoid and recover the share-loan
payments.
III.
The Bank also contends that the bankruptcy court abused its
discretion by permitting the Trustee to testify as an expert
witness in the areas of fraud examination, fraud transfer
analysis, and solvency analysis, given that the Bank had no
notice prior to trial that he might be testifying as an expert
in those areas. The Bank argues that without this expert
testimony, the Trustee would have been unable to establish MPA’s
insolvency, and any attempt by the Trustee to avoid and recover
the non-share loan payments under a constructive-fraud theory
would have failed. We find no abuse of discretion.
Bankruptcy Procedure Rule 7037, which provides that Rule 37
of the Federal Rules of Civil Procedure applies in adversary
proceedings, see Fed. R. Bankr. P. 7037, requires the exclusion
of any witness not disclosed as required by Rule 26 of the
Federal Rules of Civil Procedure unless the failure to disclose
is “substantially justifi[ed]” or “harmless,” Fed. R. Civ. P.
32
37(c)(1). 8 Although the Bank argues that the failure to disclose
cannot be considered harmless because the expert testimony
helped the Trustee’s case and harmed the Bank’s, that argument
is misplaced. The critical inquiry under Rule 7037 concerns the
prejudicial effect of the Trustee’s failure to disclose that he
might be providing the expert testimony, not of the testimony
itself, and the Bank offers no argument regarding how timely
disclosure would have made any difference.
IV.
On cross-appeal, the Trustee argues that the district court
erred in reversing the bankruptcy court’s ruling allowing the
Trustee to avoid and recover $119,036.12 of the transfer made
with check 784. We agree.
The bankruptcy court found that the evidence did not
establish how the Bank applied $119,036.12 of the funds
transferred by that check, and thus the court found that MPA did
not receive fair consideration for it. The president of the
Bank at the time of trial, John Lane, testified that his
investigation had indicated that $119,036.12 of the funds had
8
Bankruptcy Procedure Rule 7026 provides that Rule 26 of
the Federal Rules of Civil Procedure applies in adversary
proceedings. See Fed. Bankr. Rule 7026.
33
been applied to share loans. 9 The bankruptcy court discredited
this testimony because Lane did not have first-hand knowledge
and could not produce supporting documentation. The court also
inferred from the fact that the Bank did not produce the records
that MPA did not receive fair consideration for $119,036.12 of
the transfer. 10
The district court ruled that the bankruptcy court erred in
shifting the burden to the Bank to prove that MPA received fair
consideration for the transfer. The district court ruled that,
had the bankruptcy court realized that the Trustee bore the
burden, it could only have found that the Trustee failed to meet
his burden with regard to check number 784. The district court
therefore reversed the bankruptcy court decision to the extent
it allowed the Trustee to avoid and recover $119,036.12 of the
payment. The Trustee argues that the district court erred
regarding the constructive-fraud theory. 11
9
Of course, had the bankruptcy court credited Lane’s
testimony that the funds had been applied to the share loans,
the court would have ruled that the transfer could be avoided.
10
The court inferred that $119,036.12 of the transfer was
“part of the fraudulent scheme in which [the Bank] participated
with Greenbaum.” J.A. 2112.
11
Because we conclude that the bankruptcy court’s ruling
should have been affirmed under a constructive-fraud theory, we
do not address the viability of the Trustee’s actual-fraud
theory.
34
A.
The Trustee argues that the district court erred in
concluding that the bankruptcy court improperly shifted the
burden of proof to the Bank regarding this transfer. We agree.
A party seeking to set aside a conveyance as fraudulent
initially bears the burden of proving the fraud. See Sullivan
v. Dixon, 373 A.2d 1245, 1248 (Md. 1977). “It is well
established . . . that facts and circumstances may be such as to
shift the burden to the grantee to establish the bona fides of
the transaction.” Berger, 263 A.2d at 510. The presence of
several badges of fraud are “facts and circumstances” sufficient
to shift the burden regarding consideration. See Wellcraft
Marine Corp. v. Roeder, 550 A.2d 377, 379 (Md. 1988) (internal
quotation marks omitted). Such badges can include, inter alia,
the grantor’s insolvency, the relationship between the grantor
and the grantee, and departure from the normal course of
business. See id.
Here, the relationship between Greenbaum and the Bank bears
special attention not only because Greenbaum was a former
director and stockholder, but also because the two were already
engaged in fraudulent activities regarding the share loans that
represented a departure from the Bank’s normal course of
business. In light of this relationship and MPA’s insolvency,
the bankruptcy court’s decision to shift the burden to the Bank
35
to show that MPA received fair consideration for check 784 was
well founded.
B.
The Bank maintains that even if the transfer made by check
784 was otherwise avoidable, the bankruptcy court abused its
discretion in allowing the Trustee to amend his complaint to
seek recovery of more than $72,000 of that transfer. We
disagree.
Federal Rule of Bankruptcy Procedure 7015, providing that
Rule 15 of the Federal Rules of Civil Procedure applies in
adversary proceedings, see Fed. R. Bankr. P. 15, allows
pleadings to be amended with leave of the court, see Fed. R.
Civ. P. 15(a). Leave to amend “shall be freely given when
justice so requires.” Id. We review the grant of a motion to
amend the pleadings for abuse of discretion. See Lone Star
Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922,
940 (4th Cir. 1995). We find no abuse of discretion here.
Counsel for the Trustee represented to the bankruptcy court
that the parties had been exchanging documents regarding check
784 until the week before trial and that the Trustee had only
recently determined that he was entitled to recover more than
$72,000 of the transfer. As the Bank did not dispute counsel’s
account, the bankruptcy court had no reason to believe that the
36
Trustee had delayed unreasonably in notifying the Bank that he
was seeking recovery of a greater amount.
Furthermore, the Bank did not demonstrate to the bankruptcy
court how it would be prejudiced by the “late” amendment.
Whether the Trustee was seeking recovery of $72,000 or
$119,036.12 of the $172,000 transfer, the Bank had reason to
show that it had given MPA more than the $52,963.88 worth of
consideration that it could prove. As it failed even to prove
consideration valued at $72,000, there is no reason to believe
that its evidence would have been any different had the initial
complaint sought recovery of the additional $47,036.12.
V.
In sum, we reverse the district court’s reversal of the
bankruptcy court’s ruling that the Trustee could avoid and
recover the challenged portion of the transfer accomplished by
check number 784. Otherwise, we affirm.
AFFIRMED IN PART AND REVERSED IN PART
37