Consolidated Indus v. Enodis Corporation

In the

United States Court of Appeals
For the Seventh Circuit
____________

Nos. 06-4178, 06-4179, 06-4180 & 06-4181

D ANIEL L. F REELAND, Trustee,
Plaintiff-Appellee,
Cross-Appellant,
v.

E NODIS C ORPORATION and W ELBILT H OLDING C OMPANY,

Defendants-Appellants,
Cross-Appellees,
and

M ARION H. A NTONINI, et al.,
Defendants,
Cross-Appellees.
____________
Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division at Lafayette.
Nos. 4:01-CV-72, 4:04-CV-64 & 4:04-CV-65—Allen Sharp, Judge.
____________

A RGUED O CTOBER 23, 2007—D ECIDED S EPTEMBER 2, 2008
____________
2 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

Before B AUER, C UDAHY and S YKES, Circuit Judges.
C UDAHY, Circuit Judge. These appeals arise out of
bankruptcy proceedings in which Daniel Freeland, Trustee
for Consolidated Industries Corp. (Consolidated), sought
to recover transfers made by Consolidated to Welbilt
Corporation, a company now known as Enodis Corpora-
tion (Enodis). The bankruptcy court concluded that the
Trustee could avoid over $30 million in transfers made
by Consolidated between 1989 and 1998 and the district
court affirmed. In addition, the district court, having
withdrawn the reference on two of the Trustee’s claims,
found that the Trustee could avoid transfers made
within one year of the filing of Consolidated’s bankruptcy
petition pursuant to 11 U.S.C. §§ 547 and 548. The defen-
dants appeal these decisions. In his cross-appeal, the
Trustee challenges the lower courts’ rejection of his alter
ego/veil piercing claims against the corporate defendants,
the district court’s refusal to enter judgment against
Welbilt Holding Company and the grant of summary
judgment for the individual defendants. We conclude
that the Trustee can avoid transfers from Consolidated
to Enodis between 1989 and 1995 as fraudulent transfers
but remand for further findings on the issue of Consoli-
dated’s solvency after 1995. We reverse and remand the
district court’s grant of summary judgment for the Trustee
on his § 547 and § 548 claims. With respect to the Trustee’s
cross-appeal, we remand for further findings on the
Trustee’s alter ego/veil piercing claims but affirm the
remainder of the district court’s judgment.
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 3

I. Background
In the 1980s, Consolidated was a successful furnace
manufacturer. It was a subsidiary of Welbilt Holding
Company, which itself was a subsidiary of Enodis.1 Enodis
was a publicly-traded company and defendants David
and Richard Hirsch and their friend Lawrence Gross
were its primary shareholders. In 1988, the Wall Street
leveraged buyout (LBO) firm Kohlberg & Co. acquired
Enodis’ stock through a company it formed, Churchill
Acquisition Corporation (Churchill). After the leveraged
buyout, Churchill owned 63.4% of Enodis’ stock and the
Hirsches and Gross owned 36.6%. The Hirsches and Gross
became Consolidated’s directors following the LBO. They
were removed from the board in October 1990 and
were succeeded by Marion Antonini and Daniel Yih.
Enodis directed Consolidated and its other subsidiaries
to deposit its receivables in an account that Enodis con-
trolled. Consolidated’s deposits in the account were
recorded as assets and Consolidated’s assets were
reduced by amounts that Enodis used to pay Consoli-
dated’s expenses. In February 1989, Enodis directed
Consolidated to pay a cash dividend of $6.9 million. In
addition, Enodis directed Consolidated to issue two
dividend notes (the Notes) to Welbilt Holding. The first, a
10-year note with an interest rate of 13.75%, had a prin-
cipal amount of $20 million. The second, a 10-year note

1
We will refer to “Welbilt Corporation” as “Enodis” so as to
avoid any confusion with Welbilt Holding Company, which
will be referred to as “Welbilt Holding.”
4 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

with an interest rate of 13.75%, had a principal amount
of $10 million.
Both dividend notes provided that:
The principal of this Note represents the payment of a
dividend declared by the maker’s board of directors
and therefor is payable only out of funds legally
available for the payment of a dividend. If this Note
is not paid in full when due, the undersigned hereby
agrees to pay all costs and expenses of collection,
including reasonable attorneys’ fees.
The Notes provided that if Consolidated failed to make
an interest payment, they would “become immediately
due and payable at the option of the payee.” The Notes
also stated that they were governed by Indiana law. Enodis
collected the interest payments on the Notes by taking
funds from Consolidated’s deposits in Enodis’ accounts
and directing that Consolidated make the appropriate
book entries. Between 1989 and the end of 1997, Enodis
took $23,671,421.32 in interest payments from Consoli-
dated.
Meanwhile, Consolidated began to design a new product
line, a project dubbed “Project 92.” In 1987, Congress
set new standards affecting the furnace manufacturing
industry that were to take effect in 1992, and Consoli-
dated’s management believed that the company would
have to redesign its furnaces in order to comply with the
new standards. To this end, Consolidated borrowed
$7 million from Tippecanoe County in order to purchase
new equipment that was required to manufacture the
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 5

“Project 92” furnace. Enodis guaranteed the loan. As it
worked to get its new furnace line off the ground, Consoli-
dated began to confront problems with its horizontal
furnaces. A defect in the furnaces was causing fires and
warranty claims were not covered by Consolidated’s
insurance. In 1990, North Carolina’s Attorney General
investigated Consolidated’s furnaces and concluded that
they were defective. In 1993, the Consumer Product
Safety Commission (CPSC) began investigating another
defect in Consolidated’s furnaces. About this same time
a group of consumers in California threatened to file a
class action law suit, further threatening Consolidated’s
prospective financial health.
By 1994, Enodis had begun trying to sell Consolidated. In
1995, perhaps to make Consolidated more attractive to
prospective purchasers, Enodis cancelled the $30 million
in dividend notes. Enodis found an interested buyer in
William Hall. Hall could not secure financing to pur-
chase Consolidated, however, and the sale to Hall did not
close. Consolidated’s problems continued to grow. The
California class action was certified and in 1997, the CPSC
asked Consolidated to recall all of its furnaces in Califor-
nia. In January 1998, Hall, Welbilt Holding and Enodis
entered into a Stock Purchase Agreement pursuant to
which Welbilt Holding agreed to sell Hall the common
stock of Consolidated. In connection with the transaction,
Consolidated borrowed $7.5 million from Finova Capital
Corporation (Finova) and granted Finova a lien on all of
its assets. On January 5, 1998, Enodis loaned Consolidated
$108,500 to purchase insurance. On January 6, 1998, the
6 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

Hall sale closed. Consolidated directed Finova to wire
$7,108,500 of the money it borrowed from Finova to
Enodis. Seven million dollars corresponded to the pur-
chase price of Consolidated’s stock pursuant to the Stock
Purchase Agreement. The rest represented repayment
of Enodis’ January 5 loan to Consolidated. On May 28,
1998, almost five months after the Hall transaction, Con-
solidated filed for bankruptcy under chapter 11 of the
United States Bankruptcy Code.
On May 10, 1999, Consolidated filed this lawsuit. A
trustee was appointed and was substituted as the plain-
tiff. The bankruptcy case was subsequently converted to
chapter 7. Section 544(b) of the Bankruptcy Code allows
the Trustee to “avoid any transfer of an interest of the
debtor in property . . . that is voidable under applicable
law.” 11 U.S.C. § 544(b). The Trustee sought to recover the
$6.9 million cash dividend and the interest paid on the
Notes, asserting a right to recover these sums under
state and federal law governing fraudulent transfers,
Indiana common and corporate law and the law of unjust
enrichment. In addition, the Trustee brought breach of
fiduciary duty claims against the Hirches, Gross, Antonini
and Yih, asserted alter ego/veil piercing claims against
Enodis and Welbilt Holding and argued that Enodis’ claim
should be disallowed or equitably subordinated. The
Trustee also sought to recover the value of the transfers
made in connection with the Hall transaction. The
district court withdrew the reference as to Counts VIII
and IX of the Trustee’s Third Amended Complaint,
which related to the Hall transaction.
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 7

Some of the Trustee’s claims were disposed of on sum-
mary judgment. In October 2001, the bankruptcy court
granted summary judgment for the Hirsches and Gross on
the Trustee’s breach of fiduciary duty claims, finding that
the claims were barred by the applicable statute of limita-
tions. On December 9, 2002, the district court granted
summary judgment against Enodis and Welbilt Holding
on the Trustee’s claims arising from the Hall transaction.
The court concluded that the Trustee could recover
$7,369,559.35 as fraudulent transfers pursuant to 11 U.S.C.
§ 548. This amount represented $7 million that Consoli-
dated directed Finova to transfer to Enodis on January 6,
1998 as well as $369,559.35 that Consolidated transferred
to Enodis between May 28, 1997 and December 30, 1997.
The district court also concluded that the Trustee could
recover the $108,500 that Consolidated transferred to
Enodis on January 6, 1998 as a preference under 11 U.S.C.
§ 547.
The bankruptcy court conducted a 22 day trial on the
remaining counts. After hearing testimony from 19 wit-
nesses and weighing the evidence, which included
457 exhibits, the court concluded that the Trustee was
entitled to avoid $30,608,990.69 in transfers from Consoli-
dated to Enodis between 1989 and 1998. This amount
comprised the $6.9 million cash dividend as well as
$23,671,421.32 in interest charged on the Notes between
1989 and 1998. The bankruptcy court found that the
Trustee could recover the entire $30,608,990.69 under
theories of actual fraud and unjust enrichment as well as
under Indiana common law. The court also concluded
that the Trustee could avoid $10,058,731 of those transfers
8 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

as constructively fraudulent conveyances. In addition,
the court disallowed Enodis’ proof of claim. The court
rejected the Trustee’s alter ego/veil piercing claims against
Enodis and Welbilt Holding on standing grounds. The
court awarded the Trustee $12,780,302.10 in prejudg-
ment interest for a total recovery of $43,389,292.79. Enodis
appealed the bankruptcy court’s decision and the
Trustee filed a cross-appeal. The district court affirmed the
bankruptcy court’s proposed findings of fact and conclu-
sions of law in their entirety. Both parties appeal that
decision. We have jurisdiction pursuant to 28 U.S.C.
§ 158(d).

II. Discussion
The parties raise many challenges to the conclusions of
the courts below. We group the issues raised in these
appeals as follows: (1) Enodis’ appeal of the district court’s
avoidance of the 1989 $6.9 million cash dividend and the
interest payments on the Notes; (2) Enodis’ appeal of the
district court’s grant of summary judgment for the Trustee
in connection with the Hall transaction; and (3) the
Trustee’s cross-appeal.

A. Avoidance of interest payments and the $6.9 million
cash dividend
We review the bankruptcy court’s factual findings for
clear error and its legal conclusions de novo. In re Rivinius,
Inc., 977 F.2d 1171, 1175 (7th Cir. 1992). “If the bankruptcy
court’s ‘account of the evidence is plausible in light of the
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 9

record viewed in its entirety,’ we will not reverse its
factual findings even if we ‘would have weighed the
evidence differently.’ ” In re Lifschultz Fast Freight, 132
F.3d 339, 343 (7th Cir. 1997) (quoting Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985)). Mixed questions
of law and fact are subject to de novo review. Mungo v.
Taylor, 355 F.3d 969, 974 (7th Cir. 2004).

1. The Notes rendered Consolidated insolvent
Enodis’ primary challenge to the avoidance of the
interest payments and the cash dividend is that the courts
below improperly valued the Notes, which led them to
conclude that Consolidated was insolvent after the
Notes were issued in 1989. The bankruptcy court’s
finding that Consolidated was insolvent from the time
the Notes were issued to the date it filed its bankruptcy
petition was central to its conclusion that the Trustee
can recover all transfers made by Consolidated to Enodis
under each theory of recovery asserted by the Trustee.
Enodis does not dispute that at the time the Notes were
issued, the amounts of the principal of the Notes exceeded
Consolidated’s assets. Rather, the parties’ dispute centers
on how to value the Notes for the purposes of determining
Consolidated’s solvency between 1989 and the time the
Notes were cancelled in 1995. The Trustee contends that
the Notes represented liabilities in the amount of
$30 million. For its part, Enodis argues that the restrictive
language on the Notes prohibited Consolidated from
paying any principal on the Notes if doing so would render
Consolidated insolvent. Thus, Enodis contends, the fair
10 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

value of the Notes could not be $30 million unless Consoli-
dated had $30 million in funds available for a share-
holder distribution, i.e., unless Consolidated could pay
the full principal on the Notes and remain solvent. We
review the interpretation of the Notes de novo. See Rizzo v.
Pierce & Assocs., 351 F.3d 791, 793 (7th Cir. 2003) (“Inter-
pretation of an unambiguous contract is a question of
law.”).
Under Indiana and federal law, a debtor is insolvent if
the fair value of its debts exceeds the fair value of its
assets. IND. C ODE § 32-18-2-12; 28 U.S.C. § 3302. Before the
bankruptcy and district courts, Enodis contended that the
Notes represented contingent liabilities. A contingent
liability is “one that depends on a future event that may
not even occur[ ] to fix either its existence or its amount.”
In re Knight, 55 F.3d 231, 236 (7th Cir. 1995); see also In re
Mazzeo, 131 F.3d 295, 303 (2d Cir. 1997); In re Nicholes,
184 B.R. 82, 88 (9th Cir. BAP 1995); In re McGovern, 122 B.R.
712, 715 (Bankr. N.D. Ind. 1989). Because an entity’s
liability on a contingent debt may never come into being,
a contingent liability is not valued at its full amount when
assessing the entity’s solvency. Rather, a contingent
liability is valued at its face amount multiplied by the
probability that it will become due. In re Xonics Photochemi-
cal, Inc., 841 F.2d 198, 200 (7th Cir. 1988).
We agree with the courts below that Consolidated’s
obligation on the Notes was not contingent. The creation
of Consolidated’s debt to Welbilt Holding did not depend
on the occurrence of an extrinsic future event. Consoli-
dated promised to pay a sum certain on a date certain. The
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 11

only question was whether Consolidated would have the
funds available to pay the amount due on the Notes.
Enodis attempts to rely on Delphi Industries, Inc. v. Stroh
Brewery Co., 945 F.2d 215 (7th Cir. 1991), to support its
argument that the Notes were conditional or contingent
liabilities. That case involved several loans that, according
to the parties’ unwritten understanding, were to be paid
out of the cash flow or proceeds from the sale of a com-
pany. We considered whether the loans could be
breached if the funds from which they were to be paid
did not exist and concluded that they could be breached.
Id. at 217-18. Rather than bolstering Enodis’ argument,
Delphi Industries supports our conclusion that a limitation
on the source from which an obligation can be paid does
not render that obligation contingent.
On appeal, Enodis attempts to reframe the issue, assert-
ing that the restrictive language on the Notes constitutes
a condition precedent that, if unsatisfied, would have
nullified Consolidated’s obligation. This argument too is
unavailing. “A condition precedent is either a condition
which must be performed before the agreement of the
parties becomes binding, or a condition which must be
fulfilled before the duty to perform an existing contract
arises.” Barrington Mgmt. Co. v. Paul E. Draper Family Ltd.
P’ship, 695 N.E.2d 135, 141 (Ind. Ct. App. 1998). In this
case, Consolidated’s obligation on the Notes arose when
it executed and delivered them. By their terms, the Notes
are unconditional promises to pay the principal amount
on a date certain as well as interest accruing quarterly.
The Notes provided that they would “become immedi-
ately due and payable at the option of the payee” upon
12 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

the occurrence of certain specified events, including
Consolidated’s failure to make an interest payment. If
the Notes were not paid in full when due, Consolidated
was bound “to pay all costs and expenses of collection.”
Interpreting each Note as a whole, Beanstalk Group, Inc. v.
AM Gen. Corp., 283 F.3d 856, 860 (7th Cir. 2002), we
agree with the courts below that the Notes created uncon-
ditional, noncontingent obligations on the part of Con-
solidated. Although we believe this conclusion emerges
from the language of the Notes themselves, id. at 859, we
note that Enodis charged Consolidated interest pursuant
to the Notes and Consolidated performed its obligation
to pay that interest, indicating that the parties themselves
did not intend Consolidated’s obligation on the Notes
to be subject to the fulfillment of a condition at some
future date.
Enodis also argues for the first time on appeal that the
Notes were essentially declared but unpaid dividends
and should be treated as other courts have treated stock
redemption obligations or accrued but unpaid dividends.
In general, arguments not raised before the district court
are waived. Prymer v. Ogden, 29 F.3d 1208, 1215 (7th Cir.
1994). Further, this case is distinguishable from the
cases cited by Enodis because Consolidated delivered the
Notes, which by their terms included express promises
to pay the principal amount and interest, in payment of
the dividends it declared. In addition, in one case on
which Enodis seeks to rely, In re Joshua Slocum Ltd., 103
B.R. 610 (Bankr. E.D. Pa. 1989), the court adopted the
debtor’s treatment of redeemable stock as stockholders’
equity and concluded that the redemption value of the
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 13

stock was not required to be treated as debt in deter-
mining solvency. Here, as in In re Joshua Slocum, the courts
below accepted the parties’ accounting treatment of the
Notes as well as expert testimony as to how the Notes
should be valued. In sum, we find that the courts below
properly included the full value of the Notes as lia-
bilities in their solvency analyses.

2. Consolidated’s solvency after the Notes were
cancelled
The Notes were cancelled in September 1995 and prior
to their cancellation, they rendered Consolidated insolvent.
We turn our attention to the bankruptcy court’s solvency
finding after the Notes were cancelled. In order to con-
clude that Consolidated was insolvent after the Notes
were cancelled, the bankruptcy court had to find that the
fair value of Consolidated’s liabilities continued to
exceed its assets. In its proposed findings of fact and
conclusions of law, the bankruptcy court did not specifi-
cally value Consolidated’s assets or liabilities after the
Notes were cancelled. Rather, it stated simply that “[b]y
the time the dividend notes were cancelled in 1995,
the contingent claims had become so numerous, so poten-
tially expensive and so severe that—even after being
discounted for their contingent nature—they were suffi-
cient to render Consolidated insolvent.” Appellants’ App.
at 38.
On appeal, Enodis argues that the bankruptcy court
erred by failing to estimate Consolidated’s contingent
liabilities—a catch-all term used by the court that
14 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

includes product liability and warranty claims. In Xonics,
we stated that it is necessary to discount a contingent
liability “by the probability that the contingency will
occur and the liability become real.” 841 F.2d at 200. It
“must be reduced to its present, or expected, value before
a determination can be made whether the firm’s assets
exceed its liabilities.” Id. We reaffirmed the importance
of discounting analysis in Covey v. Commercial Nat’l Bank
of Peoria, 960 F.2d 657 (7th Cir. 1992), noting that
“[d]iscounting a contingent liability by the probability
of its occurrence is good economics and therefore good
law.” Id. at 660. While “[a]bsolute precision . . . is not
required,” a bankruptcy court must calculate an appro-
priately discounted value for contingent liabilities. In re
Advanced Telecomm. Network, Inc., 490 F.3d 1325, 1336
(11th Cir. 2007).
In the present case, the bankruptcy court did not
value the contingent liabilities, merely comparing them
to “an impending storm that initially looks small when it
is on a distant horizon but grows ever darker and more
dangerous as it approaches.” Appellants’ App. at 38.
This description, although imaginative, does little to
illuminate our understanding of the claims’ value. The
district court accepted the bankruptcy court’s finding.
Neither court placed a value on the claims, performed
the required discounting analysis or indicated that it
relied on any record evidence that purported to perform
the required discounting.
The Trustee urges us to conclude that the bankruptcy
court followed Xonics based on the court’s statement
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 15

that Consolidated’s contingent liabilities rendered the
company insolvent “even after being discounted for
their contingent nature.” Id. But Federal Rule of Civil
Procedure 52(a), made applicable to bankruptcy pro-
ceedings by Bankruptcy Rule 7052, requires a bankruptcy
court to make findings that supply a clear understanding
of the grounds underlying the court’s decision. See
Andre v. Bendix Corp., 774 F.2d 786, 801 (7th Cir. 1985)
(“Rule 52(a) necessitates that the findings of fact on the
merits include as many of the subsidiary facts as are
necessary to disclose to the reviewing court the steps by
which the trial court reached its ultimate conclusion
on each factual issue.”) (quoting Denofre v. Transp. Ins.
Rating Bureau, 532 F.2d 43, 45 (7th Cir. 1976) (per curiam)).
Although Rule 52(a) does not require a court to discuss
the relevance and importance of each piece of evidence,
Mozee v. Jeffboat, Inc., 746 F.2d 365, 370 (7th Cir. 1984), it
does require a court to clearly state the factual basis for
its ultimate conclusion. Kelley v. Everglades Drainage
Dist., 319 U.S. 415, 422 (1943). In this case, the issue of
solvency was highly contested by the parties and the
absence of adequate subsidiary findings prevents us from
being able to conduct a meaningful review as to whether
the court’s conclusion that Consolidated was insolvent
after 1995 is clearly erroneous. The Trustee seeks to rely
on the testimony of its expert and on Consolidated’s
internal financial statements to support the conclusion
that Consolidated was insolvent after the Notes were
cancelled, but it is not our station to weigh the evidence
and make the findings that are necessary to support
the decision. Mozee, 746 F.2d at 370; In re Cesari, 217 F.2d
16 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

424, 428 (7th Cir. 1954). Remand is required for further
subsidiary findings that indicate the factual basis for
the bankruptcy court’s solvency determination after the
Notes were cancelled in 1995.

3. The transfers made prior to the cancellation of the
Notes are recoverable as actual fraudulent transfers
The lower courts found that the Trustee could avoid all
transfers made pursuant to the Notes between 1988 and
1998 as well as the $6.9 million cash dividend under a
theory of actual fraud.2 A finding of fraudulent intent is a
finding of fact that we review for clear error. See In re
Acequia, Inc., 34 F.3d 800, 805 (9th Cir. 1994); In re Jeffrey
Bigelow Design Group, Inc., 956 F.2d 479, 481 (4th Cir. 1992);
Springmann v. Gary State Bank, 124 F.2d 678, 681 (7th Cir.
1941). It is not our station to review factual issues de
novo, and we will reverse the findings of the bankruptcy
court only if we are “left with the definite and firm con-

2
The Indiana and federal statutes provide that in the case of
actual fraud, a cause of action does not begin to accrue until
the transfer has been or could reasonably have been discovered.
I ND . C ODE § 32-18-2-19(1)(B); 28 U.S.C. § 3306(b)(1). The bank-
ruptcy court concluded that Consolidated’s creditors could
not have discovered the transfers when they occurred because
the transfers only appeared on Consolidated’s internal finan-
cial statements and in inter-company memoranda directing
that the transfers be made. Thus, the bankruptcy court tolled
the statute of limitations to allow the Trustee to recover all of
the transfers made between 1989 and 1998.
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 17

viction that a mistake has been committed.” Anderson, 470
U.S. at 573 (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)). “Where there are two permis-
sible views of the evidence, the factfinder’s choice be-
tween them cannot be clearly erroneous.” Id. at 574.
Under Indiana law, present and future creditors can
avoid transfers that were made “with actual intent to
hinder, delay, or defraud any creditor of the debtor.” IND.
C ODE § 32-18-2-14. “Proof of fraudulent intent need not
be made by direct evidence under Indiana law” and can
be inferred from the presence of certain “badges of
fraud.” United States v. Denlinger, 982 F.2d 233, 236 (7th
Cir. 1992). These badges include a transfer of property
that renders the debtor insolvent or greatly diminishes
his estate; a transaction whereby the debtor retains the
benefit of the transferred property; a transfer that is
made while litigation is pending; secret transactions
outside the usual mode of business; a transfer conducted
in a manner different from ordinary methods; and a
transfer made in exchange for little or no consideration.
Otte v. Otte, 655 N.E.2d 76, 81 (Ind. Ct. App. 1995). Al-
though “[n]o one badge of fraud constitutes a per se
showing of fraudulent intent,” Buffington v. Metcalf, 883
F. Supp. 1198, 1200 (S.D. Ind. 1994), the presence of a
number of badges of fraud “is said to ‘create . . . an over-
whelming presumption of fraud’ or to ‘raise . . . a strong
inference of fraudulent intent.’ ” Denlinger, 982 F.2d at 236
(citations omitted). Once a Trustee establishes the presence
of a number of badges of fraud, the burden shifts to the
debtor to provide a legitimate purpose for the challenged
18 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

transfers. In re Acequia, 34 F.3d at 806; Jones v. Cent. Nat’l
Bank of St. Johns, 547 N.E.2d 887, 890-91 (Ind. Ct. App.
1989), superseded by statute on other grounds as recognized
by Gipperich v. State, 658 N.E.2d 946, 950 (Ind. Ct. App.
1995).
In this case, the bankruptcy court found the presence of
several badges of fraud: the transfers were made to an
insider; they occurred when Consolidated was being
sued and threatened with suit; Consolidated did not
receive reasonably equivalent value for the transfers;
Consolidated was insolvent when the transfers were
made; the transfers were made outside the normal mode
of doing business; the transfers were secret; and Con-
solidated was left without the assets needed to pay its
debts.
Enodis attacks the bankruptcy court’s actual fraud
conclusion on several grounds. First, it asserts that the
court misapplied the badges of fraud. Enodis contends
that the bankruptcy court erred in finding that the
transfers made pursuant to the Notes were concealed
and made outside the usual mode of doing business.
Although we do not dispute Enodis’ assertion that a
dividend may be paid in the form of a note, the Notes
in the present case were issued for value in excess of
Consolidated’s assets. See Litton Indus., Inc. v. Comm’r, 89
T.C. 1086, 1099 (Tax Ct. 1987) (where company had earn-
ings and profits in excess of $30 million, a $30 million
distribution in the form of a note constituted a dividend).
In addition, the bankruptcy court found that the
$6.9 million dividend paid in February 1989 was never
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 19

declared by Consolidated’s board of directors. Enodis
contends that this conclusion is clearly erroneous because
a former director of Consolidated testified that the divi-
dend was declared at a board meeting. But it is for the
bankruptcy court to assess the credibility of witnesses
and weigh evidence, and we will not second guess the
court’s resolution of conflicting evidence. See Anderson, 470
U.S. at 575. Enodis also faults the bankruptcy court for
stating that “the transfers were secret in the sense that
they were discernable only by reviewing bookkeeping
entries concerning inter-company transfers,” arguing that
Consolidated was privately-held and had no duty to
publicly disclose its finances. Appellants’ App. at 41. But
the court also noted that creditors who inquired about
Consolidated’s “finances would have been given only
financial information for [Enodis], which did not reflect
any information concerning the transfers from Consoli-
dated.” Id. at 43. The bankruptcy court’s findings thus
support its conclusion that the transfers were secret and
outside the usual mode of doing business.
Enodis also contends that there was insufficient evi-
dence to support the conclusion that the transfers were
made at a time when Consolidated was being sued or
threatened with suit. Whether a transfer is fraudulent
“must be judged by the circumstances existing at the time
of the conveyance and not by subsequent events having
no actual connection with the transaction.” United States v.
Smith, 950 F. Supp. 1394, 1404 (N.D. Ind. 1996) (citing
Stamper v. Stamper, 83 N.E.2d 184 (Ind. 1949); Deming
Hotel Co. v. Sisson, 24 N.E.2d 912 (Ind. 1940)). Contrary to
Enodis’ assertions, the bankruptcy court did not base its
finding of the litigation badge of fraud on the CPSC and
20 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

California class action lawsuit, which occurred after 1992.
The court heard testimony from Consolidated’s former
president, Richard Weber, that Consolidated began to
see an increase in warranty and litigation claims in the
mid-1980s and that he notified Consolidated’s other
directors about these claims. The court’s reference to
lawsuits against Consolidated by 1990 shows that the
possible furnace-related claims against Consolidated that
existed when the Notes and $6.9 million dividend were
paid were more than the hypothetical lawsuits to which
every corporation may be subject. It was reasonable for
the court to infer from Consolidated’s awareness of
serious problems with its furnaces and the existence of
lawsuits following fast on the heels of the Notes’
being issued that Consolidated knew it faced significant
furnace-related claims when it issued the Notes. As for
Enodis’ contention that the furnace-related liabilities
were not viewed as a significant problem and that Con-
solidated had insurance to cover product liability claims,
we decline Enodis’ invitation to reweigh the evidence and
testimony on this point. See Anderson, 470 U.S. at 574-75.3
We also reject Enodis’ challenge to the bankruptcy
court’s finding that the transfers left Consolidated
without assets to pay its debts. Enodis argues that any

3
Enodis also contends that the courts below used improper
hindsight analysis in making their fraudulent intent determina-
tions. This argument reiterates Enodis’ points relating to the
litigation badge of fraud and we reject it for the same reasons
we reject its challenges to the litigation badge of fraud.
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 21

finding of actual fraud is negated by a good faith belief
on the part of Consolidated’s management as to the com-
pany’s financial future. But the Trustee elicited testimony
from Weber that Consolidated was unable to make ex-
penditures that were crucial to its prospective economic
stability because it transferred all of its cash to Enodis
in the form of interest payments, undermining the
claim that management believed in good faith that Con-
solidated would continue to be profitable into the 1990s.
Enodis argues that the lower courts’ conclusion that
Consolidated did not receive reasonably equivalent value
in exchange for the interest paid on the Notes is incon-
sistent with their conclusion that the Notes rendered
Consolidated insolvent. Under Indiana law, “[v]alue is
given for a transfer or an obligation if, in exchange for
the transfer or obligation, property is transferred or an
antecedent debt is secured or satisfied.” IND. C ODE § 32-18-
2-13(a). The bankruptcy court concluded that although
in general interest paid on an obligation constitutes
reasonably equivalent value, because the Notes were
issued as dividends, and because dividends do not return
value to the company, the Notes and the interest paid on
the Notes lacked reasonably equivalent value. We agree
with Enodis that there is inconsistency in the bankruptcy
court’s solvency and reasonably equivalent value con-
clusions. Since the court treated the Notes as contractual
obligations of Consolidated, Consolidated was obligated
to pay the interest that accrued on the Notes. Consoli-
dated’s payment of the accrued interest constituted
“dollar-for-dollar forgiveness of a contractual debt,” which
22 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

is “reasonably equivalent value.” In re Carrozzella &
Ricardson, 286 B.R. 480, 491 (D. Conn. 2002).
Despite this inconsistency, we affirm the court’s
actual fraud finding based on the presence of the other
badges of fraud. The transfers were to an insider at a
time when Consolidated was insolvent and facing mount-
ing furnace-related liabilities. They were concealed from
creditors and were outside the normal mode of doing
business. See, e.g., Brandon v. Anesthesia & Pain Mgmt.
Assocs., Ltd., 419 F.3d 594, 600 (7th Cir. 2005) (criticizing
district court for concluding that five badges of fraud
were insufficient to support liability); Denlinger, 982 F.2d
at 236 (presence of four badges of fraud created presump-
tion of fraudulent intent). The transfers occurred to ensure
that Enodis received the bulk of Consolidated’s cash
during a time when Consolidated was likely going to
be facing increasing warranty and liability claims related
to its furnaces. Although another court might weigh the
evidence differently, we cannot say that the bank-
ruptcy court’s finding of actual fraudulent intent is
clearly erroneous.
Enodis raises several other challenges to the lower
courts’ actual fraud analysis, which we will address briefly.
It argues that the courts below improperly based their
rulings on Enodis’ intent rather than on Consolidated’s
intent. But the bankruptcy court’s recognition of the
sizable benefits Enodis derived from the transfers is
insufficient to prove that the court failed to consider
Consolidated’s intent. Nor do we agree with Enodis that
evidence adduced at trial shows the bankruptcy court’s
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 23

fraudulent intent finding to be implausible “in light of the
record viewed in its entirety.” Anderson, 470 U.S. at 574; see
also Malachinski v. Comm’r, 268 F.3d 497, 506 (7th Cir. 2001).
Enodis also contends that the lower courts’ determination
that Messrs. Antonini and Yih did not act recklessly or
willfully in allowing the transfers to continue after
they joined Consolidated’s board of directors in 1990 and
1991 undermines the courts’ actual fraud findings. It
argues that because corporations can act only through
individuals, the absence of intentional misconduct on the
part of Antonini and Yih negates the possibility that
Consolidated effected the transfers with fraudulent
intent. But Antonini and Yih were not directors when the
Notes were issued so the fact that they may have acted
negligently, as the bankruptcy court suggested, in allowing
Consolidated to continue making interest payments on
the Notes does not negate the lower courts’ determina-
tion that the Notes were devised as a scheme to hinder,
delay or defraud Consolidated’s creditors.
Finally, Enodis contends that the courts below miscon-
strued the purpose of the Notes, asserting that they
represented a way for Consolidated to distribute money
to its shareholder in a way that would result in tax sav-
ings. The fact that Consolidated saved $465,000 in state
income taxes by making the distributions as interest
payments does not negate the court’s determination that
Consolidated intended to hinder, delay or defraud its
creditors by making the transfers. Further, the bankruptcy
court found that Consolidated transferred $9.5 million
more than was necessary to save on its state income
taxes, a finding that Enodis does not dispute. We affirm
the judgment of the courts below with respect to the
24 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

$6.9 million cash dividend and transfers made pursuant
to the Notes before the Notes were cancelled in 1995.4

B. Hall transaction
The Trustee sought to avoid transfers that Consolidated
made to Enodis within one year of its bankruptcy filing
under 11 U.S.C. §§ 547 and 548. The district court withdrew
the reference on these claims. Under § 548, the Trustee
sought to recover $7,000,000 that Consolidated transferred
to Enodis in connection with Hall’s purchase of Consoli-

4
The lower courts concluded that the Trustee could avoid over
$10 million in transfers as constructively fraudulent convey-
ances. Constructive fraud requires the trustee to show that the
debtor transferred its property within the statutory look-back
period, that it did not receive reasonably equivalent value in
exchange for the transfer and that the debtor was insolvent at
the time of or as a result of the transfer. I ND . C ODE . § 32-18-2-15;
28 U.S.C. § 3304. Our conclusion that the lower courts’ solvency
analysis is inconsistent with their conclusion that Consolidated
did not receive reasonably equivalent value in exchange for the
interest payments leads us to conclude that the courts below
erred in finding that the Trustee could avoid the transfers as
constructively fraudulent. This does not affect our conclusion
that the Trustee can recover the transfers since they are recover-
able as actually fraudulent transfers. Because we conclude that
the transfers are recoverable as actually fraudulent, we need not
discuss whether they could also be recovered under the law of
unjust enrichment or Indiana common law, as the courts below
held.
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 25

dated in January 1998.5 The Trustee also alleged that
between May 28, 1997 and December 30, 1997, Consoli-
dated transferred $15,815,582.36 into accounts controlled
by Enodis. During this period, Enodis made transfers
from its accounts on Consolidated’s behalf, and the
Trustee sought to recover $369,559.35, the difference
between Consolidated’s deposits and the amount Enodis
spent on its behalf. In order to prevail on a fraudulent
transfer claim under § 548(a), a trustee must establish
that the debtor transferred an interest in property within
one year of the petition date, that the debtor received
less than reasonably equivalent value in exchange for
the transfer and that the debtor was insolvent or was
rendered insolvent as a result of the transfer. 11 U.S.C.
§ 548(a)(1)(B).
The Trustee also sought to avoid Consolidated’s January
6, 1998 transfer of $108,500 to Enodis as a preference
under § 547. A trustee may avoid a transfer under § 547 if
it (1) was made to or for the benefit of a creditor, (2) was
for or on account of an antecedent debt, (3) was made
while the debtor was insolvent, (4) was made between
ninety days and one year before the petition was filed
and (5) allowed the creditor to receive more than it other-
wise would have. 11 U.S.C. § 547(b).
Both parties moved for summary judgment on these
claims and the court granted judgment for the Trustee.

5
The Trustee also argued in the alternative that the $7,000,000
transfer should be avoided as a preference under § 547. Because
the court concluded that the transfer could be avoided pursuant
to § 548, it never reached the Trustee’s § 547 argument.
26 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

Summary judgment is appropriate where, viewing the
evidence and construing all reasonable inferences in
favor of the non-moving party, the court concludes that
there is no genuine issue for trial. Jordan v. Summers, 205
F.3d 337, 341-42 (7th Cir. 2000). “A genuine issue for trial
exists only when a reasonable jury could find for the party
opposing the motion based on the record as a whole.”
Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 149 (7th
Cir. 1994). We review the grant of summary judgment
de novo. Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 900 (7th
Cir. 2005).
The district court concluded that when Consolidated
transferred money to Enodis in connection with the Hall
transaction several months before Consolidated filed
for bankruptcy, it was insolvent. In re Consolidated Indus.
Corp., 292 B.R. 354, 359-61 (N.D. Ind. 2002). The court also
concluded that Consolidated received no value as a
result of the transaction. Id. at 359. Therefore, the court
concluded, the Trustee could avoid the $7 million and
the $369,559 amounts under § 548. The court also deter-
mined that the $108,500 transfer from Consolidated
to Enodis in January 1998 was a voidable preference
under § 547.
On appeal, Enodis challenges the court’s determination
that Consolidated was insolvent at the time of the trans-
fers, claiming that the district court improperly weighed
evidence in granting summary judgment for the Trustee.
We agree. In concluding that Consolidated was insolvent,
the court relied on Consolidated’s internal financial
statements. Id. at 360. In opposing summary judgment,
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 27

Enodis proffered a draft audit as evidence that Consoli-
dated was solvent prior to the Hall transaction. The
district court rejected the audit’s evidentiary value, stating
that “[a]n uncompleted draft is not better evidence of
the fair value than the statements prepared by Consoli-
dated and sworn to by the highest manager of accounting
of Consolidated.” Id. at 361. Enodis also submitted a
report by its expert, Keith Gardner. The court noted that
inconsistencies existed between Gardner’s deposition
testimony and the conclusion he reached in his expert
report and appears to have disregarded his report. Id.
at 360.
On appeal, the Trustee defends the district court’s
solvency ruling, asserting that the draft audit had not
been authenticated and was excludable as unreliable
hearsay evidence. But the Trustee did not make this
argument before the district court and thus has waived it.
Zayre Corp. v. S.M. & R. Co., 882 F.2d 1145, 1150 (7th Cir.
1989) (“An evidentiary objection not raised in the
district court is waived on appeal . . . and this rule holds
as true for a summary judgment proceeding as it does for
a trial.”) (internal citation omitted). The Trustee also
argues that remand would be pointless because during
the trial before the bankruptcy court, the author of the
draft audit testified that if he had completed it, it would
have shown that Consolidated was insolvent. When we
review a district court’s grant of summary judgment, our
review is limited to the information that was before the
court when it made its ruling. Hildebrandt v. Ill. Dep’t of
Natural Res., 347 F.3d 1014, 1024 (7th Cir. 2003) (citing
28 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214,
242 (4th Cir. 2002); Chapman v. AI Transp., 229 F.3d 1012,
1028 (11th Cir. 2000)). Thus, we will not consider the
testimony that was elicited at trial. With respect to the
district court’s treatment of the defendant’s expert’s report,
the court appears to have discredited his report in part
because of inconsistencies with his deposition testimony.
But credibility determinations are not a matter for sum-
mary judgment. Washington v. Haupert, 481 F.3d 543, 550
(7th Cir. 2007). Viewing the evidence in the light most
favorable to Enodis, as we must on summary judgment,
we conclude that Enodis adduced evidence sufficient to
raise a genuine issue of material fact as to Consolidated’s
solvency in the year prior to the filing of the bankruptcy
petition.
Enodis contends that the district court should have
entered summary judgment for Enodis on the fraudulent
transfer issue because Consolidated received reasonably
equivalent value in exchange for the challenged transfers
and that we should enter judgment in its favor. Enodis
faults the district court for failing to view Consolidated’s
transfers to Enodis and transfers made by Enodis as
part of a single, integrated transaction in which Consoli-
dated received reasonably equivalent value in exchange
for the Hall transaction transfers. But Enodis did not
make this argument before the district court and we will
not consider it for the first time on appeal. See Republic
Tobacco v. N. Atl. Trading Co., 381 F.3d 717, 728 (7th Cir.
2004); 10A W RIGHT, M ILLER & K ANE, F EDERAL P RACTICE
AND P ROCEDURE § 2716 (3d ed. 1998). Moreover, the Trustee
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 29

raised alternative theories of recovery, namely, that he
could recover the transfers as preferences or as actual
fraudulent transfers. The district court did not address
these theories, precluding entry of summary judgment for
Enodis. Chicago College of Osteopathic Med. v. George A.
Fuller Co., 719 F.2d 1335, 1340-41 (7th Cir. 1983). We
reverse the court’s entry of summary judgment for
the Trustee and remand for trial as to the Trustee’s prefer-
ence and fraudulent transfer claims.6

C. Trustee’s Cross-Appeal
1. Alter ego/veil piercing claims
The Trustee brought alter ego/veil piercing claims against
Enodis and Welbilt Holding, seeking a judgment that
the Trustee could collect from Enodis and Welbilt Holding
any amounts needed to satisfy Consolidated’s creditors.
The bankruptcy court concluded that the Trustee lacked
standing under §§ 541(a) or 544(a) of the Bankruptcy
Code to bring these claims. On appeal from the bank-
ruptcy court, the district court concluded that the
Trustee did in fact have standing to bring alter ego/veil
piercing claims against Enodis and Welbilt Holding under

6
We note that the district court purported to avoid the same
$369,559.35 transfer twice—once in affirming the bankruptcy
court’s conclusion that the Trustee could avoid transfers made
between 1989 and 1998, and once in granting summary judg-
ment for the Trustee on his § 548 claims. The Trustee is entitled
to recover this amount once and the district court should ensure
that this amount is not awarded twice again following remand.
30 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

§ 541.7 However, the court stated that it agreed with the
bankruptcy court’s “ultimate legal conclusion that the
Trustee’s claims fail under that section.” Appellants’ App.
at 87. The Trustee contends that the district court erred
in concluding that the Trustee was not entitled to judg-
ment on his alter ego/veil piercing claims by purporting
to adopt a ruling that the bankruptcy court never made
and by failing to review de novo the merits of the Trustee’s
claims.
In order to prevail on an alter ego/veil piercing claim
under Indiana law, a court will consider whether the
plaintiff has adduced evidence showing:
(1) undercapitalization; (2) absence of corporate re-
cords; (3) fraudulent representation by the corpora-
tion’s shareholders or directors; (4) use of the corpora-
tion to promote fraud, injustice, or illegal activities;
(5) payment by the corporation of individual obliga-
tions; (6) commingling of assets or affairs; (7) failure
to observe required formalities; or (8) other share-
holder acts or conduct ignoring, controlling or manipu-
lating the corporate form.
Nat’l Soffit & Escutcheons, Inc. v. Superior Sys., Inc., 98 F.3d
262, 265-66 (7th Cir. 1996) (citing Aronson v. Price, 644
N.E.2d 864, 867 (Ind. 1994)). As we have already noted,
Rule 52(a) requires that the court in a bench trial set forth
“findings, stated either in the court’s opinion or

7
The district court affirmed the bankruptcy court’s ruling that
the Trustee lacked standing to assert alter ego/veil piercing
claims under § 544(a). The Trustee does not appeal this deter-
mination.
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 31

separately, which are sufficient to indicate the factual
basis for the ultimate conclusion.” Rucker v. Higher Educ.
Aids Bd., 669 F.2d 1179, 1183 (7th Cir. 1982) (citation
omitted). Doing so serves two purposes: “(1) to provide
appellate courts with a clear understanding of the basis of
the trial court’s decision, and (2) to aid the trial court in
considering and adjudicating the facts.” Bartsh v. Nw.
Airlines, Inc., 831 F.2d 1297, 1304 (7th Cir. 1987).
In the present case, the district court’s opinion does
not indicate the factual basis for its conclusion that the
Trustee has not presented evidence to support his alter
ego/veil piercing claims. Although “findings on every
issue presented in a case are unnecessary if the trial court
has found such essential facts as lay a basis for the deci-
sion,” In re Lemmons & Co., 742 F.2d 1064, 1070 (7th Cir.
1984), in the present case, the courts below did not
include any factual findings relating to the merits of the
Trustee’s alter ego/veil piercing claims. The decision to
disregard the corporate form is a “highly fact-sensitive
inquiry,” Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228,
1232 (Ind. 1994), and in light of the district court’s
cursory treatment of the Trustee’s claims, we are unable to
discern the basis of the court’s “ultimate conclusion on
each factual issue.” Denofre, 532 F.2d at 45. Thus, we
vacate and remand with directions to the district court
to comply with Rule 52(a).

2. Judgment against Welbilt Holding
The Trustee argues that the district court should have
entered judgment against Welbilt Holding under 11
32 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

U.S.C. § 550(a)(1), which allows a trustee to recover
transfers that have been avoided “from the initial trans-
feree of such transfers or the entity for whose benefit the
transfers were made.” The district court declined to
enter judgment against Welbilt Holding on the grounds
that judgment in the entire amount had been entered
against Enodis and that 11 U.S.C. § 550(d) entitled the
Trustee to only a single satisfaction of the judgment
amount. Section 550(d) provides that “[t]he trustee is
entitled to only a single satisfaction under subsection
(a) of this section.” The Trustee contends that the district
court misconstrued § 550(d) and that although § 550(d)
precludes the Trustee from collecting more than once,
it does not prevent a court from entering judgment
against more than one party. There is some support for
the Trustee’s position. As defined in the Bankruptcy
Code, “or” is not exclusive. See 5 C OLLIER ON B ANKRUPTCY
¶ 550.02[4] at 550-16 (Alan N. Resnick et al., eds., 15th ed.
rev. 2007) (citing 11 U.S.C. § 102(5)). “Thus, the trustee
can recover from any combination of the entities men-
tioned [in § 550] subject to the limitation of a single satis-
faction.” Id. Even if the district court erred, however, in
order for the Trustee to be entitled to judgment against
Welbilt Holding, he must establish that Welbilt Holding
was an entity for whose benefit the transfers were made.
The bankruptcy court found that “[t]he record does not
indicate that any of Consolidated’s money went to
[Welbilt] Holding. . . . None of the transfers from Con-
solidated to [Enodis] were advantageous to [Welbilt]
Holding.”Appellants’ App. at 50. The Trustee does not
challenge that finding, arguing that because the transfers
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 33

were actually owed to Welbilt Holding, it is an entity
for whose benefit they were made.
Although a few courts have found that an entity need
not actually obtain a benefit in order to be an entity for
whose benefit a transfer was made, see, e.g., In re Richmond
Produce Co., 118 B.R. 753 (Bankr. N.D. Cal. 1990), requiring
that the entity actually receive a benefit from the
transfer is consistent with the “well-established rule that
fraudulent transfer recovery is a form of disgorgement,
so that no recovery can be had from parties who partici-
pated in a fraudulent transfer but did not benefit from it.”
In re McCook Metals, L.L.C., 319 B.R. 570, 591 (Bankr. N.D.
Ill. 2005); see also In re Meredith, 527 F.3d 372, 376 (4th Cir.
2008) (“[A] person must actually receive a benefit from
the transfer in order to be an ‘entity for whose benefit’
the transfer was made.”); In re Compton Corp., 831 F.2d 586,
595 (5th Cir. 1987). Imposing liability on a nontransferee
based on the debtor’s intent to benefit him, without
requiring proof that the nontransferee actually benefitted
from the transfer, “bears no relationship to the theory of
cancellation that historically underlies avoidance reme-
dies.” Larry Chek & Vernon O. Teofan, The Identity and
Liability of the Entity for Whose Benefit a Transfer Is Made
under Section 550(a): An Alternative to the Rorschach Test,
4 J. B ANKR. L. & P RAC. 145, 156 (1995). Because Welbilt
Holding did not derive a benefit from the transfers, we
affirm the district court’s refusal to enter judgment
against Welbilt Holding.
34 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

3. Hirsch defendants
The courts below concluded that the Trustee’s claims
against defendants Hirsch, Hirsch and Gross were barred
by Indiana’s two-year statute of limitations on breach of
fiduciary duty claims and granted their motion for sum-
mary judgment. Under Indiana law, a claim for breach
of fiduciary duty is subject to the two-year statute of
limitations that applies to tort claims for injury to personal
property. Shriner v. Sheehan, 773 N.E.2d 833, 846 (Ind. Ct.
App. 2002). The Trustee filed this action on May 10, 1999.
Although the filing date was almost nine years after the
Hirsch defendants left Consolidated’s board, the Trustee
argues that the two-year limitations period should have
been tolled under the adverse domination doctrine. The
doctrine of adverse domination allows the tolling of the
statute of limitations
where the entity [to whom the cause of action be-
longed] is controlled by or dominated by wrongdoers.
The statute of limitations begins to run again when
the wrongdoers lose control of the entity. The
rationale behind the adverse domination doctrine is
premised upon the principle that officers and directors
who have harmed the entity cannot be expected to
take legal action against themselves.
Resolution Trust Corp. v. O’Bear, Overholser, Smith & Huffer,
840 F. Supp. 1270, 1284 (N.D. Ind. 1993) (citation omitted)
(alteration in original).8 The courts below concluded

8
It is unclear whether the adverse domination doctrine applies
in Indiana, City of E. Chi. v. E. Chi. Second Century, Inc., 878
(continued...)
Nos. 06-4178, 06-4179, 06-4180 & 06-4181 35

that Marion Antonini, who replaced Hirsch, Hirsch and
Gross in October 1990, was “a disinterested outsider
from the standpoint of any wrong which his predecessors
may have committed.” Appellants’ App. at 90. Thus, any
claim the Trustee had against the Hirsch defendants
accrued in October 1990 and the applicable statute of
limitations required Consolidated to bring its breach of
fiduciary duty claims against the Hirsch defendants by
October 1992.
When the Hirsch defendants moved for summary
judgment, they asked the court to accept the facts in the
Trustee’s Third Amended Complaint as true. In the Third
Amended Complaint, the Trustee alleged that Enodis
controlled the composition of Consolidated’s board of
directors through January 1998. But this allegation is
insufficient to create a genuine issue of material fact as to
whether the Hirsches exerted any control over Consoli-
dated after they left the board such that they would be in
a position to prevent the company from suing them for
breach of fiduciary duty. Celotex v. Catrett, 477 U.S. 317, 331
(1986). We affirm the bankruptcy court’s conclusion that
the statute of limitations for the Trustee’s claims against

8
(...continued)
N.E.2d 358, 381 n.22 (Ind. Ct. App. 2007), although one court has
assumed that it does. Resolution Trust Corp., 840 F. Supp. at 1284
(basing its decision on the “supposition” that an Indiana court
would apply the adverse domination doctrine to toll the statute
of limitations until the defendants no longer dominated the
board of directors). We assume for the purposes of this dis-
cussion that the doctrine was available to the Trustee.
36 Nos. 06-4178, 06-4179, 06-4180 & 06-4181

the Hirsch defendants began running in 1990 and had
lapsed by the time the bankruptcy petition was filed
in 1998.

III. Conclusion
To summarize, we affirm the district court’s judgment
allowing the Trustee to recover the $6.9 million dividend
and transfers made pursuant to the Notes prior to the
cancellation of the Notes in 1995. We remand for further
findings on the court’s solvency determination after the
Notes were cancelled. We reverse and remand the court’s
entry of summary judgment for the Trustee on the
transfers related to the Hall transaction. We vacate the
judgment against the Trustee on his alter ego/veil
piercing claims and remand for further proceedings
consistent with this opinion. Finally, we affirm the district
court’s refusal to enter judgment against Welbilt Holding
and its entry of summary judgment for the Hirsch defen-
dants. A FFIRMED in part, R EVERSED in part, V ACATED in
part and R EMANDED with directions. Each party shall
bear its own costs of these appeals.

9-2-08