FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEOFF WINKLER, Receiver, No. 22-55856
Plaintiff-Appellee,
D.C. No.
v. 2:21-cv-05757-
FMO-AFM
THOMAS D. MCCLOSKEY, Jr.;
BONNIE MCCLOSKEY;
CORNERSTONE HOLDINGS, LLC, OPINION
a Colorado limited liability company;
MCCLOSKEY TRUST,
Defendants-Appellants,
and
DOES, 1-10, inclusive,
Defendant.
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Argued and Submitted July 18, 2023
Pasadena, California
Filed September 28, 2023
2 WINKLER V. MCCLOSKEY
Before: A. Wallace Tashima and Danielle J. Forrest,
Circuit Judges, and Kathleen Cardone,* District Judge.
Opinion by Judge Tashima
SUMMARY**
Arbitration
The panel reversed the district court’s order denying a
motion to compel arbitration and remanded for further
proceedings in a fraudulent transfer action.
The district court appointed a receiver to claw back
profits received by investors in a Ponzi scheme that was the
subject of a Securities and Exchange Commission
enforcement action. The receiver filed suit against certain
investors, alleging fraudulent transfers from the receivership
entities to the investors. The district court concluded that the
receiver was bound by arbitration agreements signed by the
receivership company that was the instrument of the Ponzi
scheme. The district court relied on Kirkland v. Rune (In re
EPD Investment Co.), 821 F.3d 1146 (9th Cir. 2016), which
affirmed the bankruptcy court’s denial of a motion to compel
arbitration of a bankruptcy trustee’s action to avoid
fraudulent transfers by the bankruptcy debtors, who ran a
*
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WINKLER V. MCCLOSKEY 3
Ponzi scheme, to the defendants, who invested in the
scheme.
The panel held that EPD did not control because it
addressed whether a bankruptcy trustee, not a receiver, was
bound by an arbitration agreement. Unlike under
bankruptcy law, there was no explicit statute here
establishing that the receiver was acting on behalf of the
receivership entity’s creditors. The panel held that a receiver
acts on behalf of the receivership entity, not defrauded
creditors, and thus can be bound by an agreement signed by
that entity. But here, even applying that rule, it was unclear
whether the receiver was bound by the agreements at issue.
The panel remanded for the district court to consider in the
first instance whether the defendant investors met their
burden of establishing that the fraudulent transfer claims
arose out of agreements with the receivership entity, whether
the investors were parties to the agreements, and any other
remaining arbitrability issues.
COUNSEL
Joel D. Bertocchi (argued), Akerman LLP, Chicago, Illinois;
Michael D. Napoli, Akerman LLP, Dallas, Texas; Ellen S.
Robbins, Akerman LLP, Los Angeles, California; for
Defendants-Appellants.
Matthew D. Pham (argued), David R. Zaro, Joshua A. del
Castillo, and Michael R. Farrell, Allen Matkins, Los
Angeles, California, for Plaintiff-Appellee.
4 WINKLER V. MCCLOSKEY
OPINION
TASHIMA, Circuit Judge:
We must decide whether a receiver who is appointed to
claw back profits received in a Ponzi scheme is bound by
arbitration agreements signed by the receivership company
that was the instrument of the Ponzi scheme.1 The district
court, relying on Kirkland v. Rund (In re EPD Investment
Co.), 821 F.3d 1146 (9th Cir. 2016), concluded that the
receiver was not bound by the arbitration agreements. EPD,
however, addressed whether a bankruptcy trustee, not a
receiver, was bound by an arbitration agreement; it,
therefore, does not control here. We conclude that a receiver
acts on behalf of the receivership entity and thus can be
bound by an agreement signed by that entity. But here, even
applying that rule, it is unclear whether Appellee Geoff
Winkler (“Receiver”) is bound by the agreements at issue.
We therefore reverse the district court order denying the
1
A Ponzi scheme is a financial fraud that induces
investment by promising extremely high, risk-free
returns, usually in a short time period, from an
allegedly legitimate business venture. “The fraud
consists of funnelling proceeds received from new
investors to previous investors in the guise of profits
from the alleged business venture, thereby cultivating
an illusion that a legitimate profit-making business
opportunity exists and inducing further investment.”
Donell v. Kowell, 533 F.3d 762, 767 n.2 (9th Cir. 2008) (quoting Wyle v.
C.H. Rider & Fam. (In re United Energy Corp.), 944 F.2d 589, 590 n.1
(9th Cir. 1991)). Suits seeking to recover false profits in Ponzi schemes
from investors who made money, “so that the excess proceeds can be
redistributed to the investors who lost money,” are known as “‘clawback’
lawsuits.” Wiand v. Schneiderman, 778 F.3d 917, 920 (11th Cir. 2015).
WINKLER V. MCCLOSKEY 5
motion to compel arbitration and remand for further
proceedings.
BACKGROUND
Ralph Iannelli operated a Ponzi scheme through his
equipment leasing business, Essex Capital Corporation
(“Essex”). In June 2018, the Securities and Exchange
Commission (“SEC”) filed an enforcement action against
Essex, alleging that Iannelli, a “securities fraud recidivist,”
raised $80 million from approximately seventy investors
through Essex, based on false and misleading
representations.2
The district court appointed Winkler as the Receiver over
Essex and its subsidiaries and affiliates (collectively, the
“receivership entities”) and authorized him to undertake
disgorgement efforts. The Receiver was authorized to
pursue the recovery of profits from so-called net winners –
investors who were paid more than they invested in the Ponzi
scheme.
Defendants-Appellants, Thomas D. McCloskey, Jr.,
Bonnie McCloskey, Cornerstone Holdings, LLC, and the
McCloskey Trust (“Appellants”) are alleged to be net
winners, having received profits from the Ponzi scheme
through their relationship with Essex. The Receiver filed a
First Amended Complaint (“FAC”) against Appellants,
alleging fraudulent transfers from the receivership entities to
Appellants and seeking avoidance and recovery of the
fraudulent transfers pursuant to the California Uniform
Fraudulent Transfer Act (“UFTA”), Cal. Civ. Code
§§ 3439.04, 3439.07.
2
The Receiver’s March 27, 2023, motion for judicial notice is granted.
6 WINKLER V. MCCLOSKEY
The FAC alleged that Cornerstone Holdings was the
successor-in-interest to Cornerstone Essex Holdings, LLC
(“CE Holdings”) and that all of the Appellants received
assets from the receivership entities. Relying on the SEC
complaint, the FAC alleged that “Iannelli attracted
investment into Essex through the sale of promissory notes,
the returns on which were alleged to be based on the strength
of Essex’s equipment leasing business, pursuant to which
Essex’s lease portfolio would generate sufficient income to
fully offset its borrowing costs and obligations to noteholder
investors.” However, “Essex’s main source of funding was
money that it received from investor-funded promissory
notes and investor-funded LLCs, not income or revenue
derived from its equipment leasing business.” Based on a
review of “more than 500,000 pages of materials,” the
Receiver “confirmed that Essex’s payments of so-called
returns on investments to investors, including
[Appellants], . . . were funded by money obtained from new
investors, consistent with the operations of a Ponzi scheme.”
The FAC alleged that Appellants were net winners, having
received $1,240,906.35 more than they invested in the
scheme. Because the receivership entities “operated a Ponzi
investment scheme, and were insolvent, or became
insolvent,” shortly after transferring the payments to
Appellants, the FAC sought the avoidance and recovery of
the fraudulent transfers under the UFTA.
Appellants moved to compel arbitration. Appellants
stated that their business relationship with Essex “was
conducted through a jointly-owned and controlled entity,”
Cornerstone Essex Leasing LLC (“CE Leasing”). The
members of CE Leasing were Essex and CE Holdings.
Appellants explained that “Essex originated equipment
leases,” “CE Leasing paid for the equipment to be leased
WINKLER V. MCCLOSKEY 7
using a combination of the capital investments of its
members and a lending facility from Goldman Sachs,” and
Essex assigned the leases to CE Leasing. Appellants relied
on arbitration agreements in two documents, the CE Leasing
Operating Agreement and a Guaranty provided by Essex.
The CE Leasing Operating Agreement stated that it was
an agreement between “the initial Members of Cornerstone
Essex Leasing Co. LLC,” and it contained an arbitration
agreement, which stated that “[t]he Unitholders hereby
submit all controversies, claims and matters of difference
regarding this Agreement or the business and affairs of the
Company to arbitration . . . in Broomfield, Colorado.”
Iannelli signed the Operating Agreement as President of
Essex. The Manager who signed on behalf of CE Holdings
was Neville Vere Nicoll.
In the Guaranty, Essex and Iannelli stated that, as
Guarantors, they would “guaranty certain obligations” of CE
Leasing, such as by “making payments to Goldman Sachs,
to CE leasing or to CE Holdings.” The Guaranty stated that
“[t]he Guarantors hereby submit all controversies, claims
and matters of difference regarding this Agreement or the
business and affairs of the Company [CE Leasing] to
arbitration . . . in Broomfield, Colorado.” The Guaranty was
signed by Iannelli individually and as President of Essex.
The district court denied Appellants’ motion, relying on
EPD, in which this court affirmed the bankruptcy court’s
denial of a motion to compel arbitration of the bankruptcy
trustee’s action to avoid fraudulent transfers by the debtors,
8 WINKLER V. MCCLOSKEY
who ran a Ponzi scheme, to the defendants, who invested in
the scheme.3
STANDARD OF REVIEW
The denial of a motion to compel arbitration is reviewed
de novo. Johnson v. Walmart Inc., 57 F.4th 677, 680 (9th
Cir. 2023).
DISCUSSION
The UFTA provides, in relevant part, that “[a] transfer
made . . . by a debtor is voidable as to a creditor” if the
transfer was made “[w]ith actual intent to hinder, delay, or
defraud any creditor of the debtor.” Cal. Civ. Code
§ 3439.04(a)(1). The UFTA also allows a creditor to void a
transfer if it was made “[w]ithout receiving a reasonably
equivalent value in exchange for the transfer or obligation,”
and the debtor either “[w]as engaged . . . in a business or a
transaction for which the remaining assets of the debtor were
unreasonably small in relation to the business or
transaction,” or “[i]ntended to incur . . . debts beyond the
debtor’s ability to pay as they became due.” Id.
§ 3439.04(a)(2). “Courts have routinely applied UFTA to
allow receivers or trustees in bankruptcy to recover monies
lost by Ponzi-scheme investors.” Donell, 533 F.3d at 767.
The question is whether a receiver in an SEC enforcement
action seeking to recover such monies is bound by an
arbitration agreement signed by the receivership entity.
EPD addressed a similar question in the context of a
bankruptcy proceeding. “Where state statutes are similar to
3
Appellants’ motion, which the district court denied in its entirety, was
to dismiss, stay, transfer venue, or lift the anti-suit injunction imposed
by the receivership order so Appellants could file a petition for
arbitration in Colorado.
WINKLER V. MCCLOSKEY 9
the Bankruptcy Code, cases analyzing the Bankruptcy Code
provisions are persuasive authority.” Barclay v. Mackenzie
(In re AFI Holding, Inc.), 525 F.3d 700, 703 (9th Cir. 2008)
(citing Hayes v. Palm Seedlings Partners-A (In re Agric.
Rsch. & Tech. Grp., Inc.), 916 F.2d 528, 534 (9th Cir.
1990)). Because “California’s fraudulent transfer statutes
are similar in form and substance to the Bankruptcy Code’s
fraudulent transfer provisions,” EPD does provide
persuasive authority here. Id. (citing Wyle v. C.H. Rider &
Fam. (In re United Energy Corp.), 944 F.2d 589, 594 (9th.
Cir. 1991)); see also Donell, 533 F.3d at 769–70
(“California’s fraudulent transfer act and the federal
bankruptcy code’s fraudulent transfer provisions are almost
identical in form and substance; therefore, we draw upon
cases interpreting both.”) (collecting cases). However,
differences between a receivership and bankruptcy require
us to conclude that EPD does not control the result here.
In EPD, the debtors operated a Ponzi scheme in which
the defendants invested. As pertinent here, the bankruptcy
trustee for the debtors sought to avoid fraudulent transfers to
the defendants under bankruptcy law and Cal. Civil Code
§ 3439.04. 821 F.3d at 1152. We rejected the defendants’
argument that the fraudulent transfer claims were subject to
arbitration clauses in their pre-petition agreements with the
debtors. Id. EPD stated that, under the provision of the
bankruptcy code at issue, “the Trustee is empowered only to
bring claims that might be brought ‘by a creditor holding an
unsecured claim.’” Id. (quoting 11 U.S.C. § 544(b)(1)). The
court further explained that “California Civil Code section
3439.04(a)(1) permits a creditor to bring a claim for
fraudulent transfer that a debtor made with intent to hinder,
delay, or defraud a creditor of the debtor,” and that “for the
purpose of these [fraudulent transfer] claims, the Trustee
10 WINKLER V. MCCLOSKEY
stands in the shoes of the creditors, not the debtors.” Id.
Because the creditors did not sign the arbitration agreements,
the agreements did not apply to the fraudulent transfer
claims. Id.
We conclude that EPD does not control because a
bankruptcy trustee’s standing differs from a receiver’s. 11
U.S.C. § 544 explicitly authorizes a bankruptcy trustee to act
on behalf of creditors to avoid a transfer of property by the
debtor.4 Cf. Allegaert v. Perot, 548 F.2d 432, 436 (2d Cir.
1977) (concluding that claims under the Bankruptcy Act
alleging “fraudulent, preferential or post-bankruptcy
transfers” were not subject to arbitration because they “are
statutory causes of action belonging to the trustee, not to the
bankrupt, and the trustee asserts them for the benefit of the
bankrupt’s creditors, whose rights the trustee enforces”). By
contrast, a receiver’s authority derives from the court’s
equitable power. See SEC v. Wencke, 622 F.2d 1363, 1369
(9th Cir. 1980) (stating that “[t]he federal courts have
inherent equitable authority to issue a variety of ‘ancillary
relief’ measures in actions brought by the SEC to enforce the
federal securities laws,” and the district court’s inherent
power includes the power to impose a receivership); see also
Keith Miller, 8 Business & Commercial Litigation Federal
Courts § 92:49 (Robert L. Haig, ed., 5th ed. 2022) (“Because
the SEC requests receivers under the court’s equitable
authority, SEC receiverships are by definition equitable
receiverships, meaning that the receiver’s powers and duties
are set out by the order that grants his appointment and are
4
The statute provides, in part, that the bankruptcy trustee “shall have . . .
the rights and powers of, or may avoid any transfer of property of the
debtor . . . that is voidable by” a creditor, and “may avoid any transfer of
an interest of the debtor . . . that is voidable under applicable law by a
creditor holding an unsecured claim.” 11 U.S.C. § 544(a), (b)(1).
WINKLER V. MCCLOSKEY 11
unique to the facts and circumstances of each case.”). Unlike
under bankruptcy law, there is no explicit statutory
authorization here establishing that the receiver is acting on
behalf of the receivership entity’s creditors.
The Receiver contends that the reasoning of EPD applies
to receiverships. He relies on Scholes v. Lehmann, 56 F.3d
750 (7th Cir. 1995), and Donell, 533 F.3d 762, to argue that
although a receiver generally stands in the shoes of the
receivership entity, the receiver actually is acting on behalf
of the entity’s creditors, when it brings fraudulent transfer
claims.
In Scholes, the SEC brought suit against the mastermind
of a Ponzi scheme and the three corporations through which
he perpetrated the scheme. 56 F.3d at 752. The district court
appointed a receiver, who sought to recover assets from
investors as fraudulent conveyances. Id. at 752–53. The
Seventh Circuit first addressed the defendant investors’
argument that the receiver lacked standing to pursue the
fraudulent transfer claims because the receiver was acting on
behalf of the investors, and “a receiver does not have
standing to sue on behalf of the creditors of the entity in
receivership”; rather he may sue only on behalf of the
receivership entity. Id. at 753.
Scholes held that the receiver had standing to sue the
investors for fraudulent transfers. Id. at 755. The court
acknowledged that “the wrongdoer must not be allowed to
profit from his wrong by recovering property that he had
parted with in order to thwart his creditors,” and that the
corporations through which the Ponzi scheme operated were
bound by this rule while they were controlled by the
mastermind of the scheme. Id. at 754. However, the
corporations were “separate legal entities” from the
12 WINKLER V. MCCLOSKEY
mastermind, and once “[t]he appointment of the receiver
removed the wrongdoer from the scene,” the corporations
were no longer the wrongdoer’s “evil zombies.” Id. The
corporations thus became entitled to the return of money for
the benefit of innocent investors. Id. The court concluded,
“[n]ow that the corporations created and initially controlled
by [the wrongdoer] are controlled by a receiver whose only
object is to maximize the value of the corporations for the
benefit of their investors and any creditors,” there could be
no “objection to the receiver’s bringing suit to recover
corporate assets unlawfully dissipated by [the wrongdoer].”
Id. at 755; accord Klein v. Cornelius, 786 F.3d 1310, 1316–
17 (10th Cir. 2015) (concluding that a receiver had standing
under state UFTA to recover funds illegally distributed from
a business through a Ponzi scheme because “[t]he UFTA
provides rights and remedies for defrauded creditors,” “a
business entity abused by a Ponzi scheme qualifies as a
defrauded creditor,” and that business was injured when the
perpetrator of the scheme “fraudulently transferred its
funds”); Janvey v. Democratic Senatorial Campaign
Comm., Inc., 712 F.3d 185, 190 (5th Cir. 2013) (holding that,
although “a federal equity receiver has standing to assert
only the claims of the entities in receivership, and not the
claims of the entities’ investor-creditors,” the receiver had
standing to proceed under the Texas UFTA to recover assets
from Ponzi scheme investors because the court’s
appointment of the receiver freed the receivership entities
from the “evil coercion” of the principal of the scheme).
In Donell, we addressed the use of the California UFTA
in a suit brought by an SEC receiver to recover fraudulent
transfers from an investor in a Ponzi scheme who was a net
winner. 533 F3d at 766. The court explained that, in an
action by a receiver or bankruptcy trustee under the UFTA
WINKLER V. MCCLOSKEY 13
to recover money lost in a Ponzi scheme, “[t]he Ponzi
scheme operator is the ‘debtor,’ and each investor is a
‘creditor.’ . . . The profiting investors are the recipients of
the Ponzi scheme operator’s fraudulent transfer.” Id. at 767
(citations omitted). The court rejected the defendant’s
argument that the receiver lacked standing to bring the
action, agreeing with Scholes that, “although the losing
investors will ultimately benefit from the asset recovery, the
Receiver is in fact suing to redress injuries that [the
receivership entity] suffered when its managers caused [the
entity] to commit waste and fraud.” Id. at 777. Thus, a
receiver has standing to pursue a fraudulent transfer claim
because the receiver is acting on behalf of the receivership
entity, seeking to claw back transfers that the perpetrator of
the scheme fraudulently made to the net winners.
The Receiver argues that a receiver ultimately is acting
on behalf of defrauded investors. It is true that the
Receiver’s actions ultimately will benefit defrauded
investors. See Donell, 533 F.3d at 770 (explaining that the
“policy justification” for allowing payments to investors in
Ponzi schemes who received more than the amounts they
invested to be avoidable as fraudulent transfers “is ratable
distribution of remaining assets among all the defrauded
investors”); Scholes, 56 F.3d at 754 (stating that the
receivership entities were “entitled to the return of the
moneys” “for the benefit . . . of innocent investors”); Gordon
v. Royal Palm Real Est. Inv. Fund I, LLLP, 320 F. Supp. 3d
910, 920 (E.D. Mich. 2018) (concluding that the receiver’s
suit to recover funds from a Ponzi scheme was not barred
because the receiver “ultimately seeks relief for innocent
investors”); cf. FDIC v. O’Melveny & Myers, 61 F.3d 17, 19
(9th Cir. 1995) (per curiam) (explaining in an FDIC case that
a bank receiver, “like a bankruptcy trustee and unlike a
14 WINKLER V. MCCLOSKEY
normal successor in interest,” becomes the successor “as part
of an intricate regulatory scheme designed to protect the
interests of third parties who also were not privy to the
bank’s inequitable conduct”); SEC v. Hardy, 803 F.2d 1034,
1038 (9th Cir. 1986) (stating that “a primary purpose of
equity receiverships is to promote orderly and efficient
administration of the estate by the district court for the
benefit of creditors”) (collecting cases). Nonetheless, even
if the Receiver’s actions ultimately benefit the receivership
entity’s creditors, pursuant to Donell, the Receiver stands in
the shoes of the receivership entities, not in the shoes of the
creditors. 533 F.3d at 777.
We acknowledge that the holdings of Scholes and Donell
rely on the legal fiction that the receivership entity is a
separate entity from the receivership corporation through
which the Ponzi scheme was operated. This fiction is
necessary because, “[o]rdinarily, . . . a debtor does not have
standing to avoid his own transactions.” Donell, 533 F.3d at
776. Moreover, although Donell did not explicitly say so, a
receiver’s standing to bring a UFTA claim also relies on the
notion that the receivership entity, now freed from the
wrongdoer, is in essence a defrauded creditor. See Klein,
786 F.3d at 1317 (discussing Scholes’ reasoning and
concluding, “[i]n essence, the corporations were creditors
themselves”); Janvey v. Brown, 767 F.3d 430, 437 (5th Cir.
2014) (agreeing with the receiver that he had standing
because he acted on behalf of entities used by the Ponzi
schemers, which are considered defrauded creditors under
the Texas UFTA). This fiction is necessary because “[t]he
[California] UFTA permits defrauded creditors to reach
property in the hands of a transferee.” Mejia v. Reed, 74 P.3d
166, 169 (Cal. 2003) (emphasis added). Nonetheless, the
WINKLER V. MCCLOSKEY 15
Receiver is acting on behalf of the receivership entities, not
other defrauded creditors.
Our conclusion that the Receiver is acting on behalf of
the receivership entities does not establish that the Receiver
is bound by the arbitration agreements between Essex and
CE Holdings. Appellants argue that the Receiver is bound
by the agreements, citing the general rule that “‘[a] receiver
occupies no better position than that which was occupied by
the person or party for whom he acts . . . and any defense
good against the original party is good against the receiver.’”
O’Melveny & Myers, 61 F.3d at 19 (quoting Allen v. Ramsay,
4 Cal. Rptr. 575, 583 (Ct. App. 1960)). O’Melveny & Myers
further stated, however, that the general rule is “subject to
exceptions; defenses based on a party’s unclean hands or
inequitable conduct do not generally apply against that
party’s receiver.” Id. (citing Camerer v. Cal. Sav. & Comm.
Bank, 48 P.2d 39, 44–45 (Cal. 1935)). This is because,
[w]hile a party may itself be denied a right or
defense on account of its misdeeds, there is
little reason to impose the same punishment
on a trustee, receiver or similar innocent
entity that steps into the party’s shoes
pursuant to court order or operation of law.
Moreover, when a party is denied a defense
under such circumstances, the opposing party
enjoys a windfall. This is justifiable as
against the wrongdoer himself, not against
the wrongdoer’s innocent creditors.
Id.
We further note that the district court did not address
whether the fraudulent transfer claims arise out of the
16 WINKLER V. MCCLOSKEY
arbitration agreements or are outside the scope of the
agreements – that is, whether the clawback action is a
controversy, claim, or matter of difference regarding the
agreement between Essex and CE Holdings. Nor did the
district court address whether Appellants are parties to the
arbitration agreements.5
We disagree with Appellants’ assertion at oral argument
that we must send the matter to the arbitrator to decide these
questions. As this court explained in Johnson, the
judiciary’s role is to determine the very two questions at
issue here: “(1) whether a valid agreement to arbitrate exists
and, if it does, (2) whether the agreement encompasses the
dispute at issue.” Johnson, 57 F.4th at 680 (quoting Chiron
Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130
(9th Cir. 2000)). Although there is generally a presumption
in favor of arbitration, “the presumption does not apply to
disputes concerning whether an agreement to arbitrate has
been made.” Id. at 680–81 (quoting Goldman, Sachs & Co.
v. City of Reno, 747 F.3d 733, 743 (9th Cir. 2014)). “As the
part[ies] seeking to compel arbitration, [Appellants] bear[]
the burden of proving the existence [and applicability] of an
agreement to arbitrate by a preponderance of the evidence.”
Id. at 681 (citing Knutson v. Sirius XM Radio Inc. 771 F3d
559, 565 (9th Cir. 2014)).
We conclude that the Receiver is acting on behalf of the
receivership entities, not the other defrauded creditors.
Essex signed the Operating Agreement and Guaranty, but
this does not establish that the Receiver is bound by the
5
The Receiver points out that the McCloskeys were not parties to the
arbitration agreements, which were between CE Holdings and Essex.
The Receiver further argues that Appellants denied the FAC’s allegation
that Cornerstone Holdings was the successor-in-interest to CE Holdings.
WINKLER V. MCCLOSKEY 17
arbitration agreements. We remand for the district court to
consider in the first instance whether Appellants have met
their burden of establishing that the UFTA claims arise out
of the agreements, that Appellants are parties to the
agreements, and any other remaining arbitrability issues.
REVERSED and REMANDED.