Harris Gold v. Gateway Bank, FSB ( 2013 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-1935
    HARRIS JASON GOLD, Liquidating Trustee,
    Plaintiff – Appellant,
    v.
    GATEWAY BANK, FSB,
    Defendant – Appellee.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria.       Anthony J. Trenga,
    District Judge. (1:12-cv-00264-AJT-IDD; 08-13293-RGM; 10-01510-
    RGM)
    Argued:   May 15, 2013                    Decided:   June 3, 2013
    Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
    Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
    in which Judge Wilkinson and Judge Motz joined.
    ARGUED:   Kenneth Oestreicher, WHITEFORD, TAYLOR & PRESTON, LLP,
    Baltimore, Maryland, for Appellant. James Robert Schroll, BEAN,
    KINNEY & KORMAN, PC, Arlington, Virginia, for Appellee.       ON
    BRIEF:   Kevin G. Hroblak, WHITEFORD, TAYLOR & PRESTON, LLP,
    Baltimore,   Maryland;   Christopher   A.  Jones,  Bradford   F.
    Englander, WHITEFORD, TAYLOR & PRESTON, LLP, Falls Church,
    Virginia, for Appellant. Heidi Meinzer, BEAN, KINNEY & KORMAN,
    P.C., Arlington, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    2
    SHEDD, Circuit Judge:
    H. Jason Gold is the liquidating trustee of the bankruptcy
    estate of Vijay K. Taneja and Financial Mortgage, Inc. (“FMI”). 1
    Gold filed this action in bankruptcy court against Gateway Bank,
    FSB, seeking to avoid monetary transfers FMI made to Gateway,
    claiming they were fraudulent conveyances. Following trial, the
    bankruptcy court dismissed Gold’s action, and the district court
    affirmed    that    decision.      Gold    now       appeals,    arguing    that    the
    bankruptcy    court    erred      in   determining        that    Gateway    met    its
    burden to establish the good-faith affirmative defense under 
    11 U.S.C. § 548
    (c) regarding three transfers FMI made to Gateway on
    December     11,    2007   (the    “Xu     transfers”).         Specifically,      Gold
    contends that the bankruptcy court erred by finding that Gateway
    did   not    have    actual     knowledge       or     inquiry    notice    of    FMI’s
    fraudulent     purpose     in     making       those    transfers    when        Gateway
    received the payments. In light of this asserted error, Gold
    further contends that the district court erred in affirming the
    bankruptcy court’s order. We affirm.
    We review the legal conclusions of both the district court
    and the bankruptcy court de novo, and (like the district court)
    1
    Taneja used FMI, a mortgage loan originator, to perpetrate
    a massive Ponzi scheme involving mortgage loans. See In re
    Taneja, 
    453 B.R. 618
    , 620 (Bkrtcy., E.D. Va. 2011) (generally
    describing the fraudulent scheme).
    3
    we review the factual findings of the bankruptcy court for clear
    error. In re Nieves, 
    648 F.3d 232
    , 237 (4th Cir. 2011). Section
    548 of the Bankruptcy Code “sets forth the powers of a trustee
    in    bankruptcy      .   .     .    to   avoid    fraudulent     transfers,”     and    it
    permits a trustee to attempt to set aside “not only transfers
    infected by actual fraud but certain other transfers as well —
    so-called constructively fraudulent transfers.” BFP v. R.T.C.,
    
    511 U.S. 531
    ,       535       (1994).    However,      §    548(c)    “provides    a
    transferee with an affirmative defense where the transferee acts
    in good faith and gives value to the debtor in exchange for such
    transfer.” Perkins v. Haines, 
    661 F.3d 623
    , 626 (11th Cir. 2011)
    (internal punctuation altered). 2                      A finding of good faith under
    § 548(c) is primarily a factual determination subject to clear-
    error review. In re Armstrong, 
    285 F.3d 1092
    , 1096 (8th Cir.
    2002). Under the clear-error standard, we will not reverse a
    bankruptcy     court’s          factual     finding       “that   has   support   in    the
    evidence      unless      that       finding      is    clearly   wrong.”    In   re    ESA
    Environmental Specialists, Inc., 
    709 F.3d 388
    , 399 (4th Cir.
    2013).
    2
    Section 548(c) provides: “[A] transferee or obligee of
    such a transfer or obligation that takes for value and in good
    faith has a lien on or may retain any interest transferred or
    may enforce any obligation incurred, as the case may be, to the
    extent that such transferee or obligee gave value to the debtor
    in exchange for such transfer or obligation.” The “for value”
    prong of § 548(c) is not at issue.
    4
    In   reviewing   Gold’s   challenge    to    the   bankruptcy    court’s
    good-faith finding, the district court explained:
    The   bankruptcy   court  determined,   based on   the
    testimony presented, that Gateway bank had met its
    burden of proving that, with respect to its handling
    of the three Xu transfers, it followed its own routine
    business practices, which were within the industry
    standard. The bankruptcy court indicated that in
    arriving at this determination, [it] gave “more weight
    to the bank’s expert than the Trustee’s expert,”
    finding    the   bank’s   expert   [Cisneros]  “better
    qualified” and finding “the inferences that [Cisneros]
    drew from the information that he had were more
    plausible.” The bankruptcy court also determined that
    the testimony and evidence before him did not support
    a finding that Gateway Bank had actual notice of fraud
    when it accepted the transfers from FMI.
    J.A. 1521-22. Although there is, perhaps, evidence in the record
    to   suggest   a   contrary   finding, 3   our    review   of   the   parties’
    arguments, the applicable law, and the record before us leads us
    to agree with the district court that the bankruptcy court’s
    finding of good faith is not “clearly wrong.”
    Accordingly, we affirm the judgment of the district court.
    AFFIRMED
    3
    Gold attaches much significance to the January 11, 2008,
    email, in which Gateway employee Michael Kenny referred to the
    Xu transfers as being “bogus,” arguing that this statement
    establishes that Gateway knew of FMI’s fraudulent intent on
    December 11, 2007, the date of those transfers. The bankruptcy
    court carefully considered, and ultimately rejected, this
    argument. See J.A. 1456-58. We find that the bankruptcy court’s
    analysis regarding the email is not unreasonable.
    5
    

Document Info

Docket Number: 12-1935

Judges: Wilkinson, Motz, Shedd

Filed Date: 6/3/2013

Precedential Status: Non-Precedential

Modified Date: 3/2/2024