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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13486
Non-Argument Calendar
____________________
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
versus
ANGELO A. ALLECA, et al.,
Defendants,
CARRIE MISTINA,
Intervenor-Appellant,
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2 Opinion of the Court 21-13486
ROBERT D. TERRY, ESQ.,
Receiver-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:12-cv-03261-ELR
____________________
Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Carrie Mistina appeals the district court’s order voiding a
pre-receivership transfer from the receivership entity to Mistina as
a constructively fraudulent conveyance. The court concluded that
the exchange was not supported by reasonably equivalent value
because Mistina provided only $30,000 for a revenue stream worth
up to $225,000. Mistina maintains that the value given by her
$30,000 payment was more than reasonably equivalent because the
money was used to pay the premium on an errors and omissions
insurance policy, which ultimately paid out nearly $1.5 million to
the receivership estate. She also raises several procedural matters.
After careful review, we reject Mistina’s procedural arguments, but
we vacate the district court’s constructive-fraud determination and
remand for further proceedings.
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21-13486 Opinion of the Court 3
I.
In September 2012, the Securities and Exchange Commis-
sion filed a receivership action alleging that Angelo Alleca was op-
erating a Ponzi scheme through several of his companies, including
Summit Wealth Management, Inc. (“Summit”). The district court
appointed a receiver, Robert D. Terry (the “Receiver”), and author-
ized him to recover and secure assets belonging to Summit, among
other things. The court also ordered a stay of all civil litigation in-
volving any receivership property or entities until further order of
the court, and it tolled any applicable statute of limitations for
claims asserted by the Receiver while the stay order remained in
effect.
As relevant here, the Receiver alleged that a pre-receivership
exchange between Summit and Mistina, Summit’s Chief Financial
Officer, was fraudulent and therefore voidable. The exchange con-
cerned an August 2011 agreement between Summit and a third-
party, Alexandria Capital LLC, under which Summit would receive
payments on an annual basis beginning in October 2012 based on
fees generated from certain investment accounts (the “Note”). In
August 2012, Mistina paid Summit $30,000 of her personal funds in
exchange for the right to receive the four annual payments due
Summit under the Note, which had an estimated value of between
$130,000 and $225,000.
Mistina filed a claim for $225,000 in the receivership action
and otherwise asserted her ownership of the Note and contested
the Receiver’s assertion that the transfer was fraudulent. Although
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the Receiver repeatedly offered his view that the transfer was
fraudulent, he never sought to prove the matter to the district
court, despite indicating on multiple occasions that he would do
so. Instead, he simply treated the assets as part of the receivership
estate—i.e., he treated the transfer as a fraudulent conveyance—
for purposes of the distribution plan, which the district court ulti-
mately approved in September 2017.
On appeal, we vacated and remanded for further proceed-
ings, holding that these procedures denied Mistina due process.
Sec. & Exch. Comm’n v. Terry, 833 F. App’x 229, 234–35 (11th Cir.
2020) (quotation marks omitted). We stated that district courts in
receivership cases “may use so-called ‘summary proceedings,’
which promote judicial efficiency, so long as the procedure pro-
vides claimants with due process.” Id. at 232. But we explained
that “the issue of whether a pre-receivership transfer was fraudu-
lent ‘required an evidentiary hearing’ where the claimants could
‘present and argue their facts’ and ‘rebut the characterization of the
transfer and present affirmative defenses.’” Id. at 233, 235 (quoting
Sec. & Exch. Comm’n v. Elliott, 953 F.2d 1560, 1568 (11th Cir.
1992)). Because Mistina was not afforded those minimum proce-
dures, we remanded with instructions to give her a “full and fair
opportunity” to rebut the characterization of the transfer before
she was deprived of her property interest in the Note. Id. at 235.
On remand, the district court held an evidentiary hearing af-
ter a period of limited discovery. Both the Receiver and Mistina
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testified at the hearing, and the parties offered various exhibits in
evidence.
At the evidentiary hearing, Mistina testified about the cir-
cumstances of the transfer. She explained that Alleca, Summit’s
President and CEO, had proposed assigning the Note to her in ex-
change for $30,000 of her personal funds because the premium for
Summit’s $3 million errors and omission policy (the “E&O policy”)
was due and Summit was short on cash. After transferring $30,000
of her personal funds to Summit, Mistina then promptly paid the
approximately $37,000 premium for the E&O policy out of Sum-
mit’s account.
The other evidence largely confirmed Mistina’s account.
Bank records showed that, on the date of the Note assignment in
August 2012, before the premium was paid, Summit’s account had
a balance of $20,646.42. In addition, the Receiver acknowledged
that a “substantial portion” of Mistina’s funds were used to pay the
insurance premium, even if a precise amount could not be deter-
mined, and that, “but for that money, the insurance premium . . .
would not have been made.” Ultimately, the insurer paid nearly
$1.5 million under the policy to the receivership estate. That insur-
ance payment accounted for roughly 80% of the total assets col-
lected by the Receiver.
The district court concluded that the transfer of the Note to
Mistina was a fraudulent conveyance based on “constructive” fraud
under O.C.G.A. § 18-2-74(a)(2). The court reasoned that the re-
ceipt of $30,000 by Summit was not reasonably equivalent value
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for selling an income stream of up to $225,000. The court rejected
Mistina’s claim that Summit received the benefits of the E&O pol-
icy. The court was “not persuaded that the value of the coverage
amount for the errors and omissions insurance policy can be at-
tributed to Mistina” because there were other funds in Summit’s
account at the time the premium was paid, and it was not
“Mistina’s deposit alone that paid the insurance premium.” The
court also found that Summit was insolvent at the time of the trans-
fer, which Mistina does not dispute. Concluding that the transfer
constituted a constructive fraud, the court did not address whether
the transfer was voidable based on “actual” fraud.
Having resolved Mistina’s objection, the district court went
on to approve a prior settlement agreement between the Receiver
and Alexandria, under which Alexandria agreed to pay $77,000 to
the receivership estate in exchange for the entry of a bar order fore-
closing future claims against it based on the Note. Mistina now
appeals, raising procedural and substantive arguments.
II.
We start with Mistina’s procedural arguments. First,
Mistina contends that the Receiver’s right to bring a fraudulent-
transfer action against her expired on August 21, 2016, four years
after the transfer was made. She maintains that the tolling provi-
sion in the order appointing the receiver is unlawful as an indefinite
stay. Second, she contends that, even aside from the limitations
period, the claim was barred by the doctrine of laches. The parties
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agree that these issues are governed by Georgia law, where the al-
leged fraudulent transfer occurred.
A. Statute of Limitations
A cause of action with respect to a fraudulent transfer or ob-
ligation generally must be brought “within four years after the
transfer was made or the obligation was incurred.” O.C.G.A. § 18-
2-79; see O.C.G.A. § 18-2-74. Because the alleged fraudulent trans-
fer occurred on August 21, 2012, the limitations period ordinarily
would have expired four years later, on August 21, 2016.
In November 2012, though, the district court entered a Mod-
ified Receivership Order which expressly tolled all statutes of limi-
tations that would otherwise run against the Receiver regarding
claims on behalf of the receivership entities against third persons or
parties “until further Order of this Court.” Mistina does not dispute
that, if the tolling provision applies, the statute of limitations would
not bar reaching the merits of the fraudulent transfer issue.
Mistina’s claim that the tolling provision is invalid is unper-
suasive. She cites caselaw from this Circuit holding that an indefi-
nite stay order pending related litigation is invalid. 1 See Trujillo v.
Conover & Co. Commc’ns, Inc., 221 F.3d 1262, 1264–65 (11th Cir.
1 Mistina also relies on a case involving a statutory provision authorizing the
FDIC to request of a stay of an action in which it appears as a receiver, but that
provision has no application here. See F.D.I.C. v. Lacentra Trucking, Inc., 157
F.3d 1292, 1301–03 (11th Cir. 1998). Nor do ordinary principles of equitable
tolling. See Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006).
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2000) (vacating an order staying proceedings in a case as “indefi-
nite” where it remained in effect until litigation in Bahamian courts
concluded); CTI-Container Leasing Corp. v. Uiterwyk Corp., 685
F.2d 1284, 1288–89 (11th Cir. 1982) (vacating a stay pending a de-
termination by a special US-Iran Claims Tribunal). But none of the
cases she cites addressed the validity of a provision tolling applica-
ble statutes of limitations pending a receivership. Nor can we say
that the tolling provision was “indefinite in scope.” Tolling re-
mained in effect pending further order of the court, so it was
bounded by the receivership itself and subject to court oversight.
Moreover, the fraudulent-transfer issue was properly re-
solved in the context of the receivership, and so was appropriately
subject to tolling. Mistina submitted a claim for $225,000 in the
receivership action, “in turn submitting [herself] to the jurisdiction
of the receivership.” Sec. & Exch. Comm’n v. Wells Fargo Bank,
N.A., 848 F.3d 1339, 1345 (11th Cir. 2017). And the Receiver pur-
ported to resolve the fraudulent-transfer claim as part of the ordi-
nary claims process, even though we ultimately found that proce-
dure to be inadequate.
What’s more, the district court was permitted to use sum-
mary procedures to adjudicate Mistina’s interest in the Note as part
of the receivership, so long as she received a full and fair oppor-
tunity to “present and argue [her] facts” and “rebut the characteri-
zation of the transfer [as fraudulent].” Terry, 833 F. App’x at 233;
see Elliott, 953 F.2d at 1567–68 (approving the use of summary pro-
cedures to resolve whether a transfer was fraudulent). Mistina
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does not dispute that she was afforded such a meaningful oppor-
tunity on remand. In these circumstances, no separate action or
complaint was required.
For these reasons, we agree with the district court that
Mistina has not presented grounds to strike the tolling provision or
to conclude that the statute of limitations otherwise barred the Re-
ceiver from proving a fraudulent transfer in relation to the Note.
B. Laches
Under the doctrine of laches, “courts of equity may inter-
pose an equitable bar whenever, from the lapse of time and laches
of the complainant, it would be inequitable to allow a party to en-
force his legal rights.” O.C.G.A. § 9-3-3. Laches generally requires
“a delay in asserting a right or claim, that the delay was not excus-
able and that there was undue prejudice to the party against whom
the claim is asserted.” Black Warrior Riverkeeper, Inc. v. U.S.
Army Corp. of Eng’rs, 781 F.3d 1271, 1283 (11th Cir. 2015); see Hall
v. Trubey, 498 S.E.2d 258, 261 (Ga. 1998) (citing various factors rel-
evant to laches, including “the length of the delay in the claimant’s
assertion of rights, the sufficiency of the excuse for a delay, the loss
of evidence on disputed matters, [and] the opportunity for the
claimant to have acted sooner”).
The district court concluded that the doctrine of laches “was
unavailable as a defense in [an] action brought by a court-appointed
Receiver.” The court’s conclusion appears to extend our precedent
holding that the defense of laches “cannot be asserted against the
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United States in its sovereign capacity to enforce a public right or
to protect the public interest.” United States v. Arrow Transp. Co.,
658 F.2d 392, 394 (5th Cir. Unit B Oct. 8, 1981). 2 We are doubtful
that an extension of that principle is warranted for the Receiver,
who stood in the shoes of a private company and “obtain[ed] only
the rights of action and remedies that were possessed by” that com-
pany. Isaiah v. JPMorgan Chase Bank, 960 F.3d 1296, 1306 (11th
Cir. 2020). Because a private company would be subject to laches
as a litigant in its own right, it seems that the same rule should ap-
ply to a court-appointed receiver acting on behalf of that company.
We need not resolve this issue, however, because we cannot
say that applying laches here was warranted even assuming it could
apply to a court-appointed receiver. There was, to be sure, some
delay and lack of diligence in the Receiver’s actions, but not nearly
to the extent claimed by Mistina, and delay alone is insufficient
where the claim was raised within the applicable limitations period.
Cowen v. Clayton Cnty., 832 S.E.2d 819, 823 (Ga. 2019); Vincent v.
Longwater, 538 S.E.2d 164, 166 (Ga. Ct. App. 2000).
Moreover, the record shows that the Receiver consistently
maintained that the transfer of the Note was fraudulent, and he
purported to address that issue, implicitly at least, in the distribu-
tion plan, which allowed Mistina’s claim for $30,000 only and to
2 Decisions by Unit B of the former Fifth Circuit rendered after Octo-
ber 1, 1981, bind us under our prior-precedent rule. United States v. Bent, 707
F.2d 1190, 1193 (11th Cir. 1983).
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which Mistina filed no objections. Although we ultimately con-
cluded that the procedures used by the Receiver were inadequate,
the Receiver’s actions do not show that he slept on his rights. In
addition, Mistina was well aware of the Receiver’s position, and she
has made no showing that her defense was impaired by the delay
in receiving an evidentiary hearing. While she incurred additional
litigation costs to obtain the evidentiary hearing to which she was
entitled, that harm stemmed primarily from a procedural defect,
not delay.
For these reasons, the doctrine of laches did not prevent the
Receiver from seeking to set aside the transfer of the Note.
III.
Turning to the merits of the fraudulent-transfer issue, we re-
view legal issues de novo and factual findings for clear error. Nord-
berg v. Arab Banking Corp. (In re Chase & Sanborn Corp.), 904
F.2d 588, 593 (11th Cir. 1990). Whether reasonably equivalent
value “has been given for a transfer is largely a question of fact, as
to which considerable latitude must be allowed to the trier of the
facts.” Id. (quotation marks omitted).
Fraudulent-transfer provisions like those in Georgia’s Uni-
form Fraudulent Transfer Act (UFTA)3 are designed “to protect
3 The UFTA has since been amended and is now called the Uniform Voidable
Transactions Act. Agricommodities, Inc. v. Moore, 854 S.E.2d 781, 783 & n.5
(Ga. Ct. App. 2021); Ga. L. 2015, pp. 996, § 4A (effective July 1, 2015). We need
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creditors against the depletion” of a debtor’s estate. Gen. Elec.
Credit Corp. of Tenn. v. Murphy (In re Rodriguez), 895 F.2d 725,
727 (11th Cir.1990); Tuggle v. Ameris Bank, 872 S.E.2d 1, 5–6 (Ga.
Ct. App. 2022) (stating that “the UFTA’s purpose is to protect cred-
itors from the depletion of a debtor’s estate to the prejudice of un-
secured creditors”). These provisions operate to require a trans-
feree to return certain transfers to the estate.
Under the UFTA, a transfer made by a debtor is voidable if
the debtor made the transfer either with intent to delay or defraud,
or “without receiving reasonably equivalent value in exchange for
the transfer” when the debtor was insolvent. O.C.G.A. § 18-2-
74(a)(1), (2) (2016). Unlike “actual” fraud under § 18-2-74(a)(1),
“constructive” fraud under § 18-2-74(a)(2) does not depend on the
intent behind the transfer or the knowledge of the parties to the
transfer. See Agricommodities, Inc. v. Moore, 854 S.E.2d 781, 783
(Ga. Ct. App. 2021) (“[T]he fact that the transferee had no
knowledge of the debtor’s insolvency is irrelevant under this code
section.”). There is no dispute here that Summit was insolvent at
the time it transferred the Note to Mistina, so the only issue is
whether it received “reasonably equivalent value” in exchange.
The party seeking to void a transfer—here, the Receiver—
bears the burden of proving the lack of reasonably equivalent
value. See In re Chase & Sanborn Corp., 904 F.2d at 593–94 (“The
not consider the amendments because they do not apply to transfers before
July 1, 2015, and do not appear to be relevant in any case. See id.
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burden of proving lack of ‘reasonably equivalent value’ . . . rests on
the trustee challenging the transfer.”); Agricommodities, 854 854
S.E.2d at 783 (the party asserting constructive fraud “must show
that the debtor did not receive ‘reasonably equivalent value’ for the
exchange). “Reasonably equivalent in value does not mean dollar-
for-dollar equivalence.” Estate of Jackson v. Schron, 873 F.3d 1325,
1344 (11th Cir. 2017) (quotation marks omitted). And constructive-
fraud provisions generally “do[] not authorize voiding a transfer
which confers an economic benefit upon the debtor, either directly
or indirectly.” In re Rodriguez, 895 F.2d at 727 (addressing the con-
structive fraud provision at 11 U.S.C. § 548(a)(2)). “In such a situa-
tion, the debtor’s net worth has been preserved, and the interests
of the creditors will not have been injured by the transfer.” Id.
(quotation marks omitted).
The district court found that the transfer of the Note was
constructively fraudulent because the value received by Summit
($30,000 in cash) in the exchange was not reasonably equivalent to
the value given (a revenue stream up to $225,000). In other words,
the court found—and we agree—that Summit did not directly re-
ceive reasonably equivalent value from the transfer.
But Mistina proffered evidence of an indirect benefit of the
transfer. According to Mistina, Summit transferred its right to re-
ceive the deferred annual payments under the Note because it
needed immediate funds to pay the premium on its $3 million E&O
policy, which it promptly paid upon receiving the $30,000. The
Receiver does not appear to dispute that such an insurance policy
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would be of substantial benefit to a company ostensibly offering
investment advice. Indeed, it is undisputed that the policy ulti-
mately paid out nearly $1.5 million to the receivership estate.
Nevertheless, in the district court’s view, the benefit of the
E&O policy could not be attributed to Mistina because the court
could not “find that it was Mistina’s deposit alone that paid the in-
surance premium.” But the court did not offer any legal grounds
for that all-or-nothing standard. And as a matter of ordinary cau-
sation, the Receiver’s own testimony confirmed that a “substantial
portion” of Mistina’s money was used to pay the insurance pre-
mium, even if a precise amount could not be determined, and that,
“but for that money, the insurance premium . . . would not have
been made.” Because the Receiver confirmed that the policy
would have lapsed “but for [Mistina’s] money,” we see no basis in
the record for the court’s finding that the E&O policy was not at-
tributable—even if not fully so—to the funds Summit received
from Mistina. See Lightning v. Roadway Express, Inc., 60 F.3d
1551, 1558 (11th Cir. 1995) (“This court will hold a finding of fact
clearly erroneous if the record lacks substantial evidence to support
it.” (quotation marks omitted)).
In its response brief, the Receiver contends that Mistina’s ar-
gument relies on “hindsight” and that the “issue whether a debtor
received reasonably equivalent value must be evaluated as of the
date of the transaction.” The Receiver reasons that, “[a]bsent any
knowledge of the Ponzi scheme, which she has repeatedly indi-
cated she was not aware of, she would have no reason to believe
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that the Receiver was receiving any benefit other than the receipt
of the $30,000.”
The Receiver’s response is unpersuasive. Unrebutted evi-
dence reflects that Mistina knew Summit was indirectly receiving
the benefit of the E&O policy as a result of the exchange. 4 Mistina
testified that Summit’s CEO proposed the exchange for that ex-
press purpose, and that she paid the approximately $37,000 pre-
mium for the E&O policy out of Summit’s account shortly after
transferring $30,000 of her personal funds to Summit. The Re-
ceiver’s testimony and the evidence presented at the hearing were
consistent with her testimony.
For these reasons, we conclude that the district court clearly
erred in finding that the E&O policy was not attributable, at least
in substantial part, to Mistina’s payment of $30,000 to Summit in
exchange for the right to receive the four annual payments due un-
der the Note. And the Receiver has not otherwise refuted Mistina’s
account of the exchange or shown that the E&O policy either
should not be considered or did not provide reasonably equivalent
value. See In re Chase & Sanborn Corp., 904 F.2d at 593–94.
We therefore vacate the district court’s September 9, 2021,
order overruling Mistina’s objection and approving the settlement
4 The Receiver appears to be making an argument that Mistina would not
have known that the Receiver could collect under the E&O policy when she
made the transfer. That may be true, but it’s not responsive to Mistina’s argu-
ment that the policy itself was valuable to Summit.
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agreement between the Receiver and Alexandria, and we remand
for further proceedings consistent with this opinion.
VACATED AND REMANDED.