Case Law
Decision Date
18
Jul 2018
Name
IN RE: Frank Michael MONGELLUZZI, Debtor. Angela Welch, Plaintiff, v. Regions Bank, Defendant.
Attorney(s)
Robert F. Elgidely, Attorney for Trustee, Maxine K. Streeter, Genovese Joblove & Battista, P.A., Fort Lauderdale, FL, Michael A. Friedman, Genovese Joblove & Battista PA, James D. Gassenheimer, Berger Singerman. P.A., Miami, FL, Eric D. Jacobs, Genovese Joblove & Batista, P.A., Tampa, FL, for Plaintiff., D. Christopher Carson, Hanna Lahr, James P. Roberts, Burr & Forman LLP, Birmingham, AL, Garry K. Grooms, Burr & Forman, LLP, Nashville, TN, Edmund S. Whitson, III, Burr & Forman, LLP, Tampa, FL, for Defendant., Caryl E. Delano, United States Bankruptcy Judge Defendant Regions Bank ("Regions") has filed two factually and legally intertwined motions for partial summary judgment as to various counts of Plaintiff's Second Amended Complaint. For the reasons that follow, the Court will grant the motions as to Plaintiff's constructive fraudulent transfer claims and will grant the motions in part as to Plaintiff's actual fraudulent transfer claims., On June 28, 2010, Regions' fraud prevention department flagged some of the Mongelluzzi Accounts as suspicious for a possible check-kiting scheme. That same day, the fraud prevention department sent an email to Regions' management notifying them of the suspicious activity. Two days later, on June 30, 2010, Regions' monitoring and reporting operations department confirmed the fraudulent check-kiting activity. Regions' investigation revealed that within the six days prior to June 30, 2010, suspect deposits totaling $6,065,702.30 had been made to the Mongelluzzi Accounts. This Court has found that Regions had actual knowledge of the check-kiting scheme as of at least June 28, 2010., Meanwhile, in May 2013, Plaintiff filed Chapter 7 cases for sixteen of the Mongelluzzi Entities (the "Corporate Cases"). Christine Herendeen was appointed as the Chapter 7 Trustee in the Corporate Cases. In January 2015, Trustee Herendeen filed complaints against Regions in 14 of the Corporate Cases seeking, inter alia , to avoid fraudulent transfers arising from the Forbearance Agreement and subsequent transfers of funds to Regions., In November 2016, the pending adversaries against Regions were consolidated for administrative and discovery purposes only, with this adversary proceeding (8:14-ap-653-CED) serving as the lead adversary proceeding. On July 2, 2018, the Court entered an order terminating the joint administration., B. Plaintiff's Claims for Relief and Regions' Counterclaim, Plaintiff alleges that the Mongelluzzi Accounts and the Revolver were used to orchestrate a massive check-kiting scheme between 2007 and 2010; that Regions had knowledge of the check-kiting scheme; and that Regions allowed the scheme to go on for years so that Regions could collect substantial fees, charges, interest, and other forms of revenue. Plaintiff further alleges that Regions had actual knowledge of Debtor's intent to hinder and/or delay creditors by virtue of significant circumstantial evidence. This alleged circumstantial evidence includes the Mongelluzzis' and Mongelluzzi Entities' pattern of writing checks on accounts without sufficient available balances to cover the checks; chronically overdrawn accounts, including $1.7 million in overdrafts during the May to August 2010 time period; sales of Mongelluzzi Entities' accounts receivable; cash flow issues; and overly leveraged financial condition, etc.
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