Williams v. Federal Deposit Insurance (In Re Positive Health Management)

Case: 12-20687 Document: 00512805488 Page: 1 Date Filed: 10/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-20687 FILED
October 16, 2014
Lyle W. Cayce
In the Matter of: POSITIVE HEALTH MANAGEMENT, Clerk
Debtor
------------------------------
RANDY W. WILLIAMS, Chapter 7 Trustee,
Appellant
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for First
National Bank,
Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
The Bankruptcy Code allows a trustee to recover fraudulent transfers
made by the debtor prior to bankruptcy. 11 U.S.C. § 548(a). An innocent
recipient of such a fraudulent transfer is not without a defense, however. The
Code allows a transferee that takes in good faith to retain what it received from
the debtor in a fraudulent transfer “to the extent that such transferee . . . gave
value to the debtor in exchange for such transfer.” 11 U.S.C. § 548(c). This
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appeal from a bankruptcy court decision that allowed the innocent recipient of
fraudulent transfers to retain all the funds it received under the affirmative
defense in section 548(c) turns on the meaning of “value” in this statute. We
have already held that this value must be assessed from the perspective of
what the transferee gave up rather than what the debtor received. Jimmy
Swaggart Ministries v. Hayes (In re Hannover Corp.), 310 F.3d 796, 799–802
(5th Cir. 2002). The unresolved question we must now decide is what happens
when a transferee gave less value to the debtor than it received. Is the
transferee allowed to keep all that it received so long as it gave “reasonably
equivalent” value in exchange? Or is netting required so that the transferee
keeps only the value that it gave to the Debtor?
I.
Ronald T. Ziegler was the president and sole shareholder of Positive
Health Management, Inc., which operated pain management clinics in Texas.
In 2005, First National Bank made a refinance loan to a separate corporate
entity owned by Ziegler. The loan was secured by a building in Garland, Texas,
which Positive Health used for office space from September 2006 to March
2008. Despite having no direct obligations under the loan, Positive Health
made a series of payments to First National totaling $367,681.35. The
payments, which began in February 2007 and ended in March 2008, were listed
on Positive Health’s tax returns as rent. When the payments stopped, First
National foreclosed on the Garland property.
After Positive Health filed a bankruptcy petition, trustee Randy
Williams brought an adversary proceeding to recover the payments to First
National as fraudulent transfers under 11 U.S.C. § 548. The bankruptcy court
conducted a three-day trial on the claim, after which it submitted Proposed
Findings of Fact and Conclusions of Law.
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The bankruptcy court first addressed whether Williams could prove a
constructive fraudulent transfer, which requires that the debtor “received less
than a reasonably equivalent value in exchange for such transfer or
obligation.” 11 U.S.C. § 548(a)(1)(B). The court found that Positive Health
received at least reasonably equivalent value for the $367,681.35 in transfers
to First National on two alternative grounds. First, the court cited First
National’s forbearance from foreclosing on the Garland property, which
allowed Positive Health to continue “running its operations and generating
cash flow in the millions.” Second, the court cited the “reasonable rent” for the
office space that the payments enabled Positive Health to continuing using,
which the court determined was $253,333.33 based on an appraisal conducted
in 2006. Because Positive Health received value at least “reasonably
equivalent” to the amount of the transfers, the court held that Williams could
not prevail on the constructive fraudulent transfer claim.
Nonetheless, for reasons not seriously challenged in this appeal, 1 the
bankruptcy court concluded that Positive Health made the transfers “with
actual intent to hinder, delay, or defraud,” and therefore that Williams had
established actual fraud. 11 U.S.C. § 548(a)(1)(A). The court made this finding
pursuant to the multifactor test identified in Soza v. Hill (In re Soza), 542 F.3d
1060, 1067 (5th Cir. 2008), and noted Positive Health’s deteriorating financial
1 First National argues that “the payments from Positive Health to First National
could not constitute fraudulent transfers at all.” But it does not challenge the court’s finding
of fraudulent transfer beyond an unsupported assertion that Williams offered “no proof
whatsoever.” We therefore conclude that any challenge to the fraudulent transfer finding is
waived. See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995)
(“[T]he failure to provide any legal or factual analysis of an issue results in waiver of that
issue.”). In any event, the reasons cited by the bankruptcy court were sufficient to support
its finding of fraud.
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condition and the fact that it faced lawsuits and judgments around the time of
the transfers.
The bankruptcy court then analyzed whether First National could
establish the affirmative defense that it took the payments in good faith and
gave value in return. 11 U.S.C. § 548(c). Relying on its discussion of
“reasonably equivalent value” under the constructive fraudulent transfer
analysis, the court determined that First National “gave value in exchange for
the transfers” and acted in good faith. It therefore found that First National
was entitled to the defense and could keep the funds.
After the district court adopted the bankruptcy court’s proposed order,
Williams filed a motion to amend the judgment, arguing that the affirmative
defense had not been adequately pleaded and that the testimony concerning
the market value of the rent was unreliable. The district court referred the
motion back to the bankruptcy court, which held an additional hearing on First
National’s section 548(c) affirmative defense. At the hearing, Williams called
his own expert witness, who testified that the testimony of First National’s
witness was not reliable for the purposes of determining rent in 2007 and 2008.
The bankruptcy court noted in response that Williams “offered no evidence on
the rental value of the Garland Property,” so its initial finding of market rent
was uncontroverted. The district court again adopted the bankruptcy court’s
recommendation, noting that First National “‘gave value’ to the debtor beyond
the rental value of the property.” This appeal followed. 2
2 The Federal Deposit Insurance Corporation was appointed receiver of First National
in September 2013, and was substituted as the defendant in this appeal. For clarity, and
because First National was the defendant at the time of briefing and the trial court
proceedings, this opinion will refer to the defendant as First National.
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II.
“In reviewing the rulings of the bankruptcy court on direct appeal and
the district court sitting in bankruptcy, we review findings of fact for clear error
and conclusions of law de novo. We review mixed questions of law and fact de
novo.” TMT Procurement Corp. v. Vantage Drilling Co. (In re TMT
Procurement Corp.), 764 F.3d 512, 519 (5th Cir. 2014) (per curiam) (internal
citations omitted); see also Hannover, 310 F.3d at 799–800. A bankruptcy
court’s valuation “is largely a question of fact, as to which considerable latitude
must be allowed to the trier of the facts.” Hannover, 310 F.3d at 801 (internal
quotation marks omitted). However, “we review de novo the methodology
employed by the bankruptcy court in assigning values to the property
transferred and the consideration received.” Id. (internal quotation marks and
citation omitted).
III.
Under 11 U.S.C. § 548(a), the trustee of a bankruptcy estate may avoid
certain transfers made by the debtor before bankruptcy proceedings if the
transfer was made with actual or constructive fraudulent intent. But even
when a debtor has made a fraudulent transfer under that provision, an
innocent recipient of that transfer is able to retain what it received if the
conditions set out in section 548(c) are met:
[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 provision is “perfectly complementary” with section 548(a), which allows
trustees to claw back fraudulent transfers. Hannover, 310 F.3d at 802. Section
548(a) “affords creditors a remedy for the debtor’s fraudulence or, as the case
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might be, mere improvidence,” whereas section 548(c) “protects the transferee
from his unfortunate selection of business partners.” Id.To establish its entitlement to the section 548(c) defense, a transferee
must prove that it “provided value in good faith” for the transfer. In re Am.
Hous. Found., 544 F. App’x 516, 520 (5th Cir. 2013) (per curiam). A transferee
provides value when it receives the transfer in question in exchange for
“property, or satisfaction or securing of a present or antecedent debt of the
debtor.” 11 U.S.C. § 548(d)(2)(A). Williams does not dispute that First
National acted in good faith when it accepted funds from Positive Health as
payments on a loan made to another Ziegler entity, but contends that First
National failed to prove that it provided value. He attacks both grounds upon
which the bankruptcy court found value. First, he contends that finding value
based on the benefit to Positive Health of its extended ability to use the
Garland property did not assess value from the perspective of First National
as transferee. Second, Williams questions the evidence presented on the
reasonable rental value of the property: he agrees that the court properly
evaluated this “value” from the transferee’s perspective, but he challenges its
reliability.
This court’s decision in Jimmy Swaggart Ministries v. Hayes (In re
Hannover Corp.), 310 F.3d 796 (5th Cir. 2002), clarified the meaning of “value”
under section 548(c). In that case, prior to the bankruptcy proceedings, Sam
J. Recile was found in violation of the securities laws for operating a Ponzi
scheme. Id. at 798, 802. The trustee brought an action to recover funds from
Jimmy Swaggart Ministries, which received them from Recile’s enterprise in
exchange for short-term call options for the purchase of a tract of land. Id. at
798–99. In response, Jimmy Swaggart Ministries asserted the section 548(c)
defense. Id. at 799. The trustee argued that the options were valueless
because the fraudulent nature of Recile’s enterprise meant that it lacked the
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resources to pay anything close to the land’s $11.25 million purchase price set
forth in the option agreement, and thus that Jimmy Swaggart Ministries did
not “give value” in exchange for the transfers it received. Id. at 801–02.
This court rejected that argument, holding that “value” under
section 548(c) is measured from the transferee’s perspective, and therefore that
whether the options had any actual value to Recile’s enterprise was irrelevant:
Instead of inquiring into the possibility and extent of the debtor’s
loss, [section 548(c)] provides a means by which the unwitting
trading partner can protect himself. Received property can be
retained “to the extent” that the “transferee . . . gave value to the
debtor.” The provision looks at value from the perspective of the
transferee: How much did the transferee “give”? The concern here,
quite properly, is for the transferee’s side of the exchange, not the
transferor’s gain.
Id. at 802. The court thus found that the option to buy the property was “a
very valuable asset” from the perspective of Jimmy Swaggart Ministries, the
transferee, because it tied up its ability to sell to other willing buyers. Id. at
803–04.
In measuring “value” under section 548(c), therefore, this court looks not
to “the transferor’s gain,” but rather to the value that the transferee gave up
as its side of the bargain. 3 In this case, First National as transferee argues
3 In cases brought under state fraudulent transfer law, we have focused instead on
the value of the consideration to the transferor. In Janvey v. Brown, --- F.3d ----, 2014 WL
4627972, at *7–8 (5th Cir. Sept. 11, 2014), for example, we held that the trustee of a bankrupt
Ponzi scheme could claw back interest payments to innocent investors. Janvey rejected the
investor-defendants’ argument that the debtor’s use of their money established that they
gave value in exchange for the interest payments. Id. at *7. The court noted that “[t]he
primary consideration in analyzing the exchange for value for any transfer is the degree to
which the transferor’s net worth is preserved” because “creditors are not . . . defrauded if all
that happens is the exchange of an existing asset of the debtor for a different asset of equal
value.” Id. at *8 (alterations in original) (quoting Warfield v. Byron, 436 F.3d 551, 560 (5th
Cir. 2006), and Scholes v. Lehmann, 56 F.3d 750, 753 (7th Cir. 1995)) Because the Ponzi
scheme’s financial condition was only worsened by the interest payments, the investors had
not given value in exchange for the interest payments. Id. As the Hannover decision makes
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that the estate cannot recover the payments because the value of First
National’s forbearance—which the bankruptcy court noted was the potential
for Positive Health to generate cash flow from ongoing operations that
ultimately earned the company over $4 million in revenue—exceeds the
$367,681.35 that First National received. But just as it was irrelevant in
Hannover whether Recile’s operation received any real value from options it
could not exercise, it is irrelevant that Positive Health received outsized
benefits from First National’s forbearance. Both examples fail to follow
Hannover’s instruction that value given up should be measured from the
transferee’s perspective—instead, they measure the value of the transferee’s
consideration as the transferor would. 4
The alternative form of value found by the bankruptcy court, market
rent, does analyze value from the correct perspective. Just as tying up land
was costly to the transferee in Hannover, allowing Positive Health to stay in
the Garland property was costly to First National. By giving up the chance to
foreclose and find a new tenant, First National incurred an opportunity cost in
the form of foregone market rent. 5
Because First National received the loan payments in lieu of rent it could
have otherwise earned, it gave value within the meaning of section 548(c).
clear, however, we focus on the value of the exchange to the transferee for the purposes of
section 548(c) of the federal Bankruptcy Code.
4 In fact, the bankruptcy court’s finding of value under section 548(c) simply
incorporated its finding of value under section 548(a)(1)(B). Under the latter provision,
unlike the former, value is properly determined from the transferor’s perspective. See Butler
Aviation Int’l Inc. v. Whyte (In re Fairchild Aircraft Corp.), 6 F.3d 1119, 1127 (5th Cir. 1993)
(“[T]he recognized test is whether the investment conferred an economic benefit on the
debtor.”).
5 Contrary to First National’s argument, the two valuations offered by the bankruptcy
court are not two independent forms of value that the bank gave to Positive Health. Rather,
they are two different ways of analyzing the value of First National’s forbearance. Because
only the rental value of the property measures value from First National’s own perspective,
it is the appropriate measure in this case.
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Although the rent measure properly assesses value from the standpoint of the
transferee, Williams contends that the bankruptcy court erroneously
calculated the market rent because it relied on an appraisal of the Garland
building from January 2006 when the transfers occurred in 2007 and 2008. It
is true that “for purposes of § 548 the value of an investment . . . is to be
determined at the time of purchase.” Hannover, 310 F.3d at 802. The
bankruptcy court, however, did determine that “the reasonable rental rate
from September 2006 to March 2008”—which includes the entire period in
question—“was $253,333.33.” It was not clearly erroneous based on the record
in this case to use the January 2006 appraisal—the only evidence offered for
market value—to assess rental value for the 27 months that followed the
appraisal. To hold otherwise would present significant practical problems for
trial judges who often must make findings of fact based on imperfect evidence.
There is no reason to question the bankruptcy court’s finding, particularly
given the “considerable latitude” we must give it in this situation. See
Hannover, 310 F.3d at 801. We therefore affirm the finding that First National
was entitled to the section 548(c) defense because it acted in good faith and
provided value in return.
IV.
This brings us to the “netting” question identified at the outset. Williams
contends that even if the affirmative defense applies, section 548(c) requires
this court to reduce the value of the fraudulent transfers ($367,681.35) by the
value of the market rent ($253,333.33), and to award the estate the
$114,348.02 difference. This argument is based on the text of section 548(c),
which provides that if a transferee shows it has taken in good faith and for
value, then it “may retain any interest transferred . . . to the extent that such
transferee . . . gave value to the debtor in exchange for such transfer or
obligation.” 11 U.S.C. § 548(c) (emphasis added). The bankruptcy court took
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a looser approach, finding (in the alternative) that First National was entitled
to keep the entirety of the transfers because the rental value was “reasonably
equivalent” to the amount of the transfer. Although the district court appeared
to recognize that netting may be appropriate in some situations, emphasizing
section 548(c)’s “to the extent” language, it found that First National “‘gave
value’ to the debtor beyond the rental value of the property,” and therefore that
netting was not necessary in this case. It reached this conclusion based on the
value that Positive Health received from continuing operations in the Garland
office, an assessment that we have already concluded is at odds with Hannover.
First National rejects what it terms a “rigid ‘netting’ approach,” arguing
instead that a transferee is allowed to keep all of the fraudulent transfers when
it establishes the section 548(c) defense so long as the values exchanged are
“reasonably equivalent.” The term “reasonably equivalent value” appears in
section 548(a)(1)(B)(i) as a factor in the determination of constructive
fraudulent transfer. It does not appear in section 548(c). Nonetheless, the
bankruptcy court equated the two terms, citing Hannover: “In analyzing
whether a transferee gave value, the Fifth Circuit adopted the analysis of
reasonably equivalent value under § 548.” Although a number of bankruptcy
courts have similarly cited Hannover for the proposition that “value” under
section 548(c) means “reasonably equivalent value,” 6 this reading is mistaken.
Hannover only held that “the standard for appellate review of trial court
determinations of ‘value’ under § 548(c)” is the same as “this court’s approach
to the review of trial court determinations of ‘reasonably equivalent value’”
under section 548(a). 310 F.3d at 801 (emphasis added). Nonetheless, even
some courts that do not rely on this “standard of review” language from
See Dobin v. Hill (In re Hill), 342 B.R. 183, 203 (Bankr. D.N.J. 2006); Satriale v. Key
6
Bank USA, N.A. (In re Burry), 309 B.R. 130, 136 (Bankr. E.D. Pa. 2004).
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Hannover have held that section 548(c) “value” means “reasonably equivalent
value.” See, e.g., Balaber-Strauss v. Sixty-Five Brokers (In re Churchill Mortg.
Inv. Corp.), 256 B.R. 664, 677 (Bankr. S.D.N.Y. 2000), aff’d sub nom. Balaber-
Strauss v. Lawrence, 264 B.R. 303 (S.D.N.Y. 2001).
This is not, however, the only conclusion reached by courts that have
considered the issue. Others have treated “value” and “reasonably equivalent
value” as having distinct meanings. See Leonard v. Coolidge (In re Nat’l Audit
Def. Network), 367 B.R. 207, 223 (Bankr. D. Nev. 2007); cf. Salven v. Munday
(In re Kemmer), 265 B.R. 224, 234–35 (Bankr. E.D. Cal. 2001) (noting, in the
context of 11 U.S.C. § 550(a), which sets out a trustee’s right of recovery from
an avoided fraudulent transfer, that “value” “is not necessarily synonymous
with either ‘reasonably equivalent value’ [under section 548(a)(1)(B)] or ‘fair
market value’”). The Collier treatise also takes the view that “value” in section
548(c) is different than “reasonably equivalent value.” In comparing section
548(c) with the corresponding provision of the Uniform Fraudulent Transfer
Act, the treatise provides a helpful comparison:
[A]ssume that a debtor [sold his brother a car worth $12,000 for
$11,000] to put the car out of the reach of the debtor’s creditors,
but the brother did not know of the fraud or of his brother’s
financial condition. . . . Under [section 548(c)], the transaction is
. . . set aside, but the brother has a lien on the car to the extent of
$11,000; under state law, assuming that $11,000 is reasonably
equivalent value for a $12,000 car, the brother has a complete
defense to avoidance.
5 COLLIER ON BANKRUPTCY ¶ 548.09[5] (16th ed. 2014) (quoting Nat’l Audit
Def. Network, 367 B.R. at 233).
We agree with Collier’s reading of section 548(c). It is unlikely that the
drafters of the Bankruptcy Code intended “value” under section 548(c) to mean
“reasonably equivalent value” when the latter term is explicitly used in
another subsection of the same statute (section 548(a)’s provision for
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constructive fraudulent transfers). See Sosa v. Alvarez-Machain, 542 U.S. 692,
711 n.9 (2004) (“[W]hen the legislature uses certain language in one part of the
statute and different language in another, the court assumes different
meanings were intended.”). And the exclusion of these words is particularly
telling in light of the Uniform Fraudulent Transfer Act’s use of “reasonably
equivalent value” in its corresponding affirmative defense to avoidance of a
fraudulent transfer. 7 See 5 COLLIER, supra, ¶ 548.09[5] (comparing the
Bankruptcy Code and UFTA, and noting that only the latter gives the
transferee “a complete defense” if it “gave reasonably equivalent value for the
exchange” (emphasis added)); In re Nat’l Audit Def. Network, 367 B.R. at 223(same); Jack F. Williams, Revisiting the Proper Limits of Fraudulent Transfer
Law, 8 BANKR. DEV. J. 55, 111 (1991) (noting that when a transferee gives
“reasonably equivalent value” that is less than actual value, the transferee “is
afforded additional protection under Section 8(a) of the UFTA beyond that
provided under Section 548(c) of the Code”).
Apart from the need to give different meanings to different terms used
in the same statute, even viewed on its own the text of section 548(c) supports
the netting approach. The last clause of the statute, beginning with “to the
extent,” makes clear that a transferee is entitled to keep only the amount of a
fraudulent transfer that equals the amount it gave up in exchange. See
Hannover, 310 F.3d at 802 (noting that “[r]eceived property can be retained ‘to
the extent’ that the ‘transferee . . . gave value to the debtor’”). And if, as the
bankruptcy court implicitly found, netting is not appropriate because “value”
means “reasonably equivalent value,” this reads the “to the extent” clause out
of section 548(c) as establishing reasonably equivalent value under the first
7 See UNIF. FRAUDULENT TRANSFER ACT § 8(a) (“A transfer or obligation is not voidable
. . . against a person who took in good faith and for a reasonably equivalent value.”).
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clause would be all that a transferee needs to show. See 11 U.S.C. § 548(c) (“[A]
transferee . . . that takes for value and in good faith . . . may retain any interest
transferred . . . to the extent that such transferee . . . gave value.” (emphasis
added)).
First National argues that a “rigid netting approach” is not appropriate
because “for more than four hundred years, the good faith and ‘value’ defense
merely required ‘good consideration’ rather than some precise mathematical
equivalence of value.” But it is because transferees who merely give “good
consideration” in exchange for fraudulent transfers are entitled to the defense
that netting is necessary. Consideration need not be “reasonably equivalent”
to be valid. See Scholes v. Lehmann, 56 F.3d 750, 756 (7th Cir. 1995)
(“[O]rdinarily a court will not even permit inquiry into the adequacy of the
consideration for a promise or a transfer.”). And because consideration may be
disproportionately small, to hold that a transferee who merely gives “good
consideration” in exchange for a fraudulent transfer may keep the entire
amount would allow it to benefit at the expense of the debtor’s creditors based
on the fortuity that it received a fraudulent transfer. 8
Courts have thus netted the amounts received in a fraudulent transfer
against the value given to the debtor. See, e.g., Clark v. Sec. Pac. Bus. Credit,
Inc. (In re Wes Dor, Inc.), 996 F.2d 237, 243 (10th Cir. 1993) (“[T]he Bank was
the transferee of a fraudulent transfer from the Debtor. As such, it became
liable to the bankruptcy estate for the amount of the transfer less any value it
extended to the Debtor in exchange for that transfer.”); In re Telesphere
Comm’ns, Inc., 179 B.R. 544, 559 (Bankr. N.D. Ill. 1994) (for the purposes of
8 In trying to defend the equity of retaining the full transfer, First National claims
that it was “entitled” to repayment of the loan it made. That is true, but beside the point.
Positive Health’s other creditors were also entitled to compensation—that is what makes
them creditors—and allowing First National to keep the full amount of the transfers reduces
their potential recovery.
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comparing a settlement to the likely outcome of litigation, netting a $92.7
million fraudulent transfer with the $38.9 million value given by the
transferee). The netting issue often arises in Ponzi scheme cases. The trustee
of a bankrupt Ponzi scheme typically files fraudulent transfer claims against
“net winner” investors to claw back profits they have received. The “general
rule” is that while transfers to innocent investors are fraudulent, the
“defrauded investor gives ‘value’ to the Debtor in exchange for a return of the
principal amount of the investment, but not as to any payments in excess of
principal.” 9 Perkins v. Haines, 661 F.3d 623, 627 (11th Cir. 2011); see also
Janvey, 2014 WL 4627972, at *6–8; Donell v. Kowell, 533 F.3d 762, 770 (9th
Cir. 2008); Scholes, 56 F.3d at 757–58.
The language of the Bankruptcy Code and the policies it embodies
therefore lead us to the following conclusion: A good faith transferee is entitled
to the protections of section 548(c) when it gives any value in return, but only
to the extent of that value. When a transferee receives a fraudulent transfer
the value of which exceeds the consideration it gave up in return, section 548(c)
requires netting.
We recognize that not all cases will lend themselves to valuation at a
precise dollar amount, such as the rental value determined by the bankruptcy
court in this case. But this presents less of a problem than First National
suggests. Many section 548 transfers to which the good faith defense applies
9 The defrauded investor will be found to have given value to the enterprise in the
form of the surrender of her fraud claim against the debtor. Janvey, 2014 WL 4627972, at *8
(“[T]he principal payments were payments of an antecedent debt, namely fraud claims that
the investor-defendants have as victims of the Stanford Ponzi scheme.”). Anything above
that (or in some cases, above the principal plus interest payments, see In re Carrozzella &
Richardson, 286 B.R. 480, 492 (D. Conn. 2002)), “exceed[s] the scope of the investors’ fraud
claim and may be subject to recovery by a plan trustee.” Perkins, 661 F.3d at 627.
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involve the purchase of an asset at its fair market price. 10 This is the reason
Hannover did not present the netting issue; there was no reason to doubt that
the option to purchase the land was acquired at a market price that accurately
reflected the value of that option. But in more unusual transfers, such as the
one in this case and as in the Ponzi context, dollar-for-dollar netting is both
practicable and important in balancing the interests of creditors with the
interests of transferees. Bankruptcy courts may simply continue applying the
tools they use to determine the value of assets in many contexts to determine
value under section 548(c).
We therefore hold that Williams, as trustee of the bankruptcy estate, is
entitled to recover the $114,348.02 difference between the payments First
National received and the value it gave in return.
* * *
For these reasons, we AFFIRM the district court’s finding of fraudulent
transfer under section 548(a)(1)(A) to the extent First National challenges it
on appeal. We also AFFIRM the district court’s conclusion that First National
is entitled to the section 548(c) defense, but REVERSE its take-nothing
judgment in favor of First National. Instead, judgment is RENDERED in favor
of Williams in the amount of $114,348.02.
10 When there is a vast imbalance in the values exchanged that would be apparent to
the transferee, it may be difficult to establish the good faith requirement.
15