944 F.2d 589 (9th Cir. 1991), 89-16281, In re United Energy Corp.
|Docket Nº:||89-16281, 89-16505.|
|Citation:||944 F.2d 589|
|Party Name:||In re UNITED ENERGY CORP., Debtor. Frederick S. WYLE, as Trustee of United Energy Corporation and Trustee of Renewable Power Corporation, Appellant, v. C.H. RIDER & FAMILY; C.H. Rider; Thomas A. Rider, Appellees. In re UNITED ENERGY CORP., Debtor. Frederick S. WYLE, as Trustee of United Energy Corporation and Trustee of Renewable Power Corporation,|
|Case Date:||September 13, 1991|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted Feb. 12, 1991.
Patricia S. Mar, Feldman, Waldman & Kline, San Francisco, Cal., for appellant.
Frank R. Ubhaus, Ubhaus & Collins, San Jose, Cal., and Iain A. Macdonald, Goldberg, Stinnett & Macdonald, San Francisco, Cal., for appellees.
Before TANG, SKOPIL and THOMPSON, Circuit Judges.
DAVID R. THOMPSON, Circuit Judge:
In this consolidated appeal, Frederick S. Wyle, the trustee for United Energy Corporation ("UEC") and Renewable Power Corporation ("RPC") ("Trustee"), appeals the decision of the Bankruptcy Appellate Panel for the Ninth Circuit ("BAP") that reversed certain judgments of the Bankruptcy Court for the Northern District of California. Appellees ("investors") were unwitting investors in a Ponzi scheme 1 in which they bought solar energy production modules from UEC and signed contracts to sell the power produced by the modules to RPC, a related corporation. To attract new investors, existing investors were paid for power their modules never produced ("power payments") on the basis of false invoices generated by UEC and RPC. After the scheme was uncovered, UEC filed for Chapter 11 reorganization and RPC was involuntarily brought into the bankruptcy proceedings on petition by the UEC Trustee.
The Trustee sought to avoid the power payments to the investors. He argued that the investors did not give reasonably equivalent value for the payments, and hence the payments should be set aside as fraudulent transfers of the debtor's property. The bankruptcy court agreed. The BAP reversed. It held that the investors acquired rescission claims at the time they bought their solar modules. These rescission claims gave the investors rights of restitution, and these rights could be exchanged for the power payments. Thus, the BAP reasoned, the investors gave equivalent value for the power payments they received, and these payments were not fraudulent transfers.
The BAP also held that the investors' contracts to buy the modules and their contracts to sell the power were indivisible. Therefore, the investors' rights to rescind the contracts to buy the modules from UEC could be exchanged on a dollar-for-dollar basis for payments received under the investors' contracts with RPC to sell power produced by the modules. C.H. Rider & Family v. Wyle (In re United Energy Corp.), 102 B.R. 757 (9th Cir. BAP 1989).
We have jurisdiction pursuant to 28 U.S.C. § 158(d) and we affirm the BAP decision.
FACTS AND PROCEDURAL HISTORY
In 1982, UEC began manufacturing and marketing solar modules to the public. A prominent feature of the sales campaign was the representation that federal and state tax benefits could be obtained by participating in solar energy production. See In re United Energy Corp., 102 B.R. at 758-59. These purported benefits, however, either never materialized or proved to be grossly exaggerated. See id. at 759 n. 2.
The modules were designed to convert sunlight into electricity and thermal energy. From 1982 through 1985, UEC sold 5,323 of these modules to 4,500 purchasers for $30,000 to $40,000 each. The purchase contracts for the modules usually provided for down payments ranging from 36% to 43% of the purchase price, with the remainder financed by long-term, generally nonrecourse, promissory notes which were payable in semiannual or annual installments and secured by the modules themselves. On gross module sales of over $200 million, UEC collected approximately $83.5 million in cash--$66.7 million from down payments and $16.8 million from installment payments on the promissory notes.
At the time of sale, each module purchaser was also offered a contract, called a "Power Purchase Agreement," to sell the electric and thermal power generated by the modules to RPC. The same individual, Delphine Lampert, was the sole shareholder in both UEC and RPC. UEC and all its affiliated companies were operated by Delphine Lampert's husband, Ernest Lampert.
The modules were to be placed on three California solar energy farms to be operated by RPC. The Power Purchase Agreements obligated RPC to buy all power generated from the modules. The UEC promotional literature stated that the electricity bought by RPC would be resold to utilities and the thermal energy would be used to support various business activities of RPC at the solar farms. The Power Purchase Agreements did not guarantee any minimum return or profit level.
The UEC solar farms produced a negligible amount of power. 2 Nevertheless, in order to attract additional purchasers, UEC and RPC, in typical Ponzi scheme fashion, made it appear that the business venture was a rousing success. UEC and RPC fabricated fictitious kilowatt hours of production for each module. RPC then paid module owners for this phony production. These are the power payments the Trustee sought to set aside as fraudulent transfers. They totaled $4,754,936.
The power payments were made quarterly, from the first quarter of 1983 through
the third quarter of 1984, and were accompanied by realistic-looking utility statements that ostensibly detailed meter readings from each module. Because RPC had no income or assets of its own from which to make the power payments, it obtained the cash to make the payments from funds lent to it by UEC through a third entity, United Financial Corporation ("UFC"). UFC was owned and operated by the same individuals who controlled UEC and RPC.
The illusion of credibility surrounding the solar energy production operation was shattered in late 1984 when the California Department of Corporations filed suit against UEC in state court for the illegal sale of securities. All power payments were discontinued after the third quarter of 1984.
Bankruptcy Court Proceedings
1. Wyle v. C.H. Rider & Family
C.H. Rider & Family, C.H. Rider and Thomas A. Rider (collectively, "Rider") bought ten modules from UEC and invested $159,127 in the form of a down payment and installment payments on a promissory note. See Wyle v. C.H. Rider & Family (In re United Energy Corp.), Ch. 11 Case No. 3-8500636-LK, Adv. No. 3-86-0409-LK, Findings of Fact and Conclusions of Law at 8-9 (Bankr.N.D.Cal. July 20, 1987). They received $23,980.40 in fictitious power payments. Id. at 9-10. The Trustee sought to avoid these power payments as a fraudulent transfer. After a trial in which Rider stipulated to the insolvency of UEC and RPC, the bankruptcy court found that the power payments to Rider were not made in exchange for reasonably equivalent value and, therefore, were avoidable by the Trustee as fraudulent transfers. See id. at 10-12, 14-15. Specifically, the bankruptcy court found that "[n]o property was received by UEC or RPC in exchange for the power payments ... [and n]o antecedent debt of either UEC or RPC to Rider was satisfied or secured, in whole or in part, in exchange for the power payments." Id. at 10. From this finding, the bankruptcy court concluded as a matter of law that "[n]either UEC nor RPC received a reasonably equivalent value, or any value, in property or satisfaction of a present or antecedent debt, in exchange for the power payments paid to the module purchasers." Id. at 14. The bankruptcy court further reasoned that Rider's claims for fraud were general unsecured claims which could not be offset against the fraudulent conveyances. Id.
2. ABCD Enterprises and Related Cases
The Trustee also filed an adversary proceeding against several hundred other module purchasers who, as a group, had received approximately $200,000 of fictitious power payments. Wyle v. ABCD Enterprises (In re United Energy Corp.), Ch. 11 Case No. 3-85-00636-LK, Adv. No. 3-86-0408-LK, Findings of Fact and Conclusions of Law on Motions for Partial Summary Judgment at 10 (Bankr.N.D.Cal. Oct. 13, 1987). Additional adversary proceedings were filed against Martin and Barbara Altbaum, Land and Solar Partners, Plaza Investors V and Cris C. Cris, and Jeanne Bauer. These investors were sued separately because of the size of the claims against them. 3 In each of these adversary proceedings, partial summary judgment was granted to the Trustee allowing him to recover the power payments as fraudulent transfers. See, e.g., id. at 12-16. Findings of fact and conclusions of law similar to those in Rider were entered. See, e.g., id. at 3-16.
The BAP Decision
The BAP consolidated the cases and reversed the bankruptcy court. In re United
Energy Corp., 102 B.R. 757 (9th Cir.BAP 1989). The BAP held that
[t]he holdings of [Merrill v. Abbott (In re] Independent Clearing House[ ), 41 B.R. 985 (Bankr.D.Utah 1984), aff'd in part, rev'd in part, 77 B.R. 843 (D.Utah 1987) ] and Eby [v. Ashley, 1 F.2d 971 (4th Cir.1924) ] point to the result in this case. In a suit for damages, the power payments given to the defrauded investors would be deemed to partially satisfy or release fraud or restitution claims. See [In re Independent Clearing House, 77 B.R.] at 857 n. 2 (citing Restatement of Restitution § 1 (1936); Restatement (Second) of Contracts §§ 164 & 376 (1979)) (in the absence of a valid contract, investors prior to repayment would have a claim for restitution to prevent unjust enrichment; if the investment agreement was...
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