ncua motion and receiver's response

Upload: jmaglich1

Post on 06-Jul-2018

222 views

Category:

Documents


0 download

TRANSCRIPT

  • 8/17/2019 NCUA Motion and Receiver's Response

    1/30

     

    IN THE UNITED STATES DISTRICT COURTDISTRICT OF SOUTH CAROLINA

    ANDERSON/GREENWOOD DIVISION

    IN RE:

    RECEIVER FOR BONNIE GENEWILSON AND ATLANTIC BULLION& COIN, INC.

    )

    )))))))))

    CIVIL ACTION NO. 8:12-cv-02078-

    JMC

    Memorandum in Support of Motion in

    Support of Unresolved Objections by

    the National Credit Union

    Administration Board Acting in its

    Capacity as Liquidating Agent for

    Taupa Lithuanian Credit Union, Inc. 

    I. PROCEDURAL BACKGROUND

    On October 15, 2014, the National Credit Union Administration Board, acting in its

    capacity as Liquidating Agent for Taupa Lithuanian Credit Union, Inc. (the “Liquidating Agent”),

    filed a claim (the “Claim”) with Beattie Ashmore, Receiver for Bonnie Gene Wilson and Atlantic

    Bullion & Coin (the “Receiver”).  For ease of reference, a copy of said Claim is attached hereto as

    Exhibit A. The Liquidating Agent’s Claim requested the return of $100,000.00 John W. Struna

    misappropriated from Taupa Lithuanian Credit Union, Inc. (“Taupa”) and transferred to Atlantic

    Bullion & Coin (“AB&C”). The Liquidating Agent’s Claim was timely and properly filed in

    accordance with the instructions and other requirements set forth on the Receiver’s Court-

    Approved Proof of Claim Form. Walt Tollison, Esq., attorney for the Receiver, advised that the

    Liquidating Agent may supplement its Claim to include a legal brief more fully setting forth the

    Liquidating Agent’s Claim and the law in support of the Liquidating Agent’s request for return of  

    the entirety of its claim ($100,000.00) from AB&C, which the Liquidating Agent did on December

    10, 2014 (the “Supplement”), which is attached hereto as Exhibit B. On February 3, 2016, the

    Liquidating Agent submitted to the Receiver, an Objection to Claim Form, a copy of which is

    attached hereto as Exhibit C.

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 1 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    2/30

      2

    The Liquidating Agent’s February 3rd correspondence requested that the Receiver make a

    determination of the Liquidating Agent’s claim as a creditor of AB&C . However, the Receiver

    simply accepted the claim on the basis that the Liquidating Agent was as an investor that would

    receive distributions on par with all other accepted investor claims. The Liquidating Agent agrees

    that at a minimum it is entitled to recover on par with all other investors under the rising tide

    distribution method. That being said, for the reasons set forth herein, the Liquidating Agent is

    entitled to receive the entirety of the $100,000.00 transferred by Struna to AB&C, prior to any

    distributions to any other investor, pursuant to 12 U.S.C. § 1787(b)(16) and other applicable

     provisions of the Federal Credit Union Act, including but not limited to 12 U.S.C. § 1787(g).

    Further, the Receiver is unable to successfully maintain its position, while also failing to exhaust

    administr ative remedies. As such this Court is without jurisdiction to hear the Receiver’s defense

     pursuant to 12 U.S.C. § 1787(b)(13)(D).

    II. FACTUAL BACKGROUND

    A. Receiver Appointment

    On July 30, 2012, Ronnie Gene Wilson (“Wilson”) and AB&C pled guilty to two counts

    of mail fraud stemming from their involvement in a criminal Ponzi scheme involving hundreds of

    victims and millions of dollars. See United States v. Ronnie Gene Wilson, et al, 8: 12-cr-320-JMC

    (“AB&C Litigation”). Pursuant to a federal court order, the Receiver is tasked with assuming

    management and control over all the financial and business affairs for a number of individuals and

    companies (collectively, “AB&C Receivership Entities”). The court Order requires the Receiver,

    among other things, to locate and manage assets previously acquired by and/or in the

    name/possession of the AB&C Receivership Entities. Additionally, the Receiver is tasked with

    receiving claims submitted by, among others, bilked investors.

    B. AB&C Scheme

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 2 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    3/30

  • 8/17/2019 NCUA Motion and Receiver's Response

    4/30

      4

    As part of the AB&C Ponzi scheme, some investors received substantial returns and profits

    through payments of ill-gotten gains from AB&C, while other investors lost large sums of money

    with no return or profit. Struna fell into the latter category. Struna never received a return and

    never profited from the money he transferred to AB&C. In other words, Struna invested

    $100,000.00 with AB&C and received nothing in return. However, since Struna transferred money

    from Taupa with the intention of defrauding Taupa, the absence of any return by Struna is of no

    impact on him individually.

    Conversely, the Liquidating Agent, and independently, the United States Attorney’s

    Office, were left with tracking down and recovering funds Struna wrongfully obtained and

    transferred from Taupa to various recipients. As an example, the Liquidating Agent obtained

    Orders from the United States District Court, Northern District of Ohio, to attach an account at

    Huntington National Bank standing in the name of Struna’s wife, Vilija Struna. The Liquidating

    Agent also obtained an Order from the United States District Court to attach a business known as

    Sunny Street Café that Struna started with money obtained from Taupa. After Taupa’s liquidation,

    Struna transferred Sunny Street Café to his wife, Vilija. The Liquidating Agent obtained the relief

    sought when attaching assets of the Strunas by exercising the powers afforded the Liquidating

    Agent under 12 U.S.C. § 1787(b)(2)(G). Likewise, the United States Attorney’s Office obtained

    an Order of forfeiture to recover property owned by an entity named JV Florida, LLC that acquired

    real property with money Struna wrongfully obtained from Taupa. Indeed, Struna engaged in a

     pattern of conduct the purpose of which was to wrongfully obtain funds from Taupa then transfer

    the funds in such a manner to defraud Taupa. Now the Liquidating Agent stands in Taupa’s shoes,

    as by operation of law the Liquidating Agent has succeeded to all rights, title, powers, and

     privileges of the credit union. 12 U.S.C . § 1787(b)(2)(A)

    C. Liquidation of Taupa

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 4 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    5/30

      5

    The National Credit Union Administration (the “NCUA”) is an independent agency of the

    Executive branch of the United States government that insures both federal and, at times, state

    chartered credit unions. The NCUA is managed by the National Credit Union Administration

    Board (the “NCUA Board”) pursuant to 12 U.S.C. § 1752(a).

    Taupa was, at all times relevant herein, a state chartered, federally insured, credit union

    with its principal place of business located at 767 E. 185th St., Cleveland, Ohio 44119. Thus,

    Taupa was an “insured credit union” within the meaning of 12 U.S.C. § 1752(7).

    On or about July 12, 2013 (the “Liquidation Date”), the Superintendent of the Ohio

    Division of Financial Institutions issued an Order Revoking the Articles of Incorporation (of

    Taupa) and Appointing a Liquidating Agent (i.e., the NCUA Board) (the “Revocation Order”).

    On or about July 15, 2013, the NCUA Board accepted the appointment as Liquidating Agent

     pursuant to the applicable provisions of 12 U.S.C. § 1787(a)(1)(A) and § 1787(j). The Liquidating

    Agent, by operation of law, succeeded to all rights, title, powers and privileges of Taupa, and title

    to the credit union’s books, records and assets, pursuant to 12 U.S.C. § 1787(b)(2)(A).

    On August 20, 2014, Struna was indicted in the United States District Court for the

     Northern District of Ohio on charges of 1) bank fraud, 2) conspiracy to commit bank fraud, 3)

    making false statements to financial institution, and 4) money laundering. See United States of

     America v. John Struna, 1:14-cr-00275-JG. All of the charges against Struna relate to his conduct

    in misappropriating and unlawfully obtaining money from Taupa. On November 17, 2014, Struna

     pled guilty to all charges in the Indictment.  Id .

    On October 3, 2014, the Liquidating Agent filed a Complaint against Struna and related

    entities in the United States District Court for the Northern District of Ohio. See National Credit

    Union Administration Board, acting in its capacity as Liquidating Agent for Taupa Lithuanian

    Credit Union, Inc. v. John Struna et al., 1:14-cv-02199-JRA. As part of this lawsuit, the

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 5 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    6/30

      6

    Liquidating Agent also sought, in accordance with 12 U.S.C. § 1787(b)(2)(G), to attach a claim

    that Struna could file with the Receiver relating to the $100,000.00 Struna fraudulently obtained

    from Taupa and subsequently transferred to AB&C. On October 10, 2014, the Liquidating Agent

    and Struna entered into an Agreed Order permitting an attachment of the AB&C Claim, and

    subsequently the Liquidating Agent and Struna resolved their dispute by consent judgment.

    Subsequently, as set forth above, the Liquidating Agent, through its Claim, advised the

    Receiver that the Liquidating Agent is further exercising its power to set aside and recover the

    $100,000.00 transferred by Struna to AB&C pursuant to 12 U.S.C. § 1787(b)(16). The effect of

    the Liquidating Agent setting aside the transfer under 12 U.S.C. § 1787(b)(16) is that the initial

    transfer of funds from Struna to AB&C is void ab initio. In other words, AB&C never acquired

    any rights, title or interest in the $100,000.00. See, 12 U.S.C. § 1787(b)(16)(D); See also, FDIC

    v. Jahn 828 F. Supp. 2d 305 (Dist. Col. 2011). The only available defense set forth in 12 U.S.C.

    § 1787(b)(16)(C) is wholly inapplicable because AB&C was not a bona fide taker for value

     because it was a Ponzi scheme.

    III. LEGAL ANALYSIS

    A. The Liquidating Agent is Entitled to Avoid and Recover the Fraudulent

    Transfers Struna Made to AB&C.

    The powers afforded the Liquidating Agent, by 12 U.S.C. § 1787(b)(16)(B) are direct and

    unambiguous. Pursuant to 12 U.S.C. § 1787(b)(16), the Liquidating Agent is entitled to avoid and

    recover any fraudulent transfers made within 5 years of the Liquidating Agent’s appointment if

    the transferee does not take for value and in good faith.

    The Federal Credit Union Act (“FCUA”) is a “comprehensive scheme designed to protect

    the interests of creditors” of failed credit unions, such as Taupa.  NCUA Bd. v. Lormet Cmty. Fed.

    Credit Union, 2010 U.S. Dist. LEXIS 122379 (N.D. Ohio, Nov. 17, 2010). Specifically, 12 U.S.C.

    § 1787(b)(16)(A) provides the following:

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 6 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    7/30

      7

    In general.  The Board, as conservator or liquidating agent for any insuredcredit union, may avoid a transfer of any interest of an institution-affiliated party, or any person who the Board determines is a debtor of the institution, in property, or any obligation incurred by such party or person, that was madewithin 5 years of the date on which the Board becomes conservator or

    liquidating agent if such party or person voluntarily or involuntarily made suchtransfer or incurred such liability with the intent to hinder, delay, or defraud theinsured credit union or the Board.

    To further evidence the broad authority afforded the Liquidating Agent, the Court needs to

    look no further than 12 U.S.C. § 1787(g). In whole, 12 U.S.C. § 1787(g) provides:

    Except as provided in this section, no court may take any action,except at the request of the Board of Directors by regulation ororder, to restrain or affect the exercise of powers or functions of the

    Board as a conservator or a liquidating agent.

    Despite this very clear expression of the Liquidating Agent’s authority, the Receiver is

    seeking to restrain and affect the Liquidating Agent’s exercise of its powers in conflict with 12

    U.S.C. § 1787(g). Specifically, the Receiver is refusing to return the entirety of Struna’s

    $100,000.00 transfer to AB&C that the Liquidating Agent avoided in accordance with 12 U.S.C.

    § 1787(b)(16)(A).

    By assuring that this $100,000.00 is available to reduce the loss to the estate of a liquidated

    credit union, the cost to the National Credit Union Share Insurance Fund (“NCUSIF”) ,2 which

    insures member deposits in federally-insured credit unions across the United States, will also be

    reduced. This reduction in cost to the NCUSIF furthers the important public interest in maintaining

    a strong, healthy, self-sustaining federal insurance fund. Unlike any other investor who voluntarily

    invested personal assets, the Liquidating Agent is seeking to recover money wrongfully obtained

    and fraudulently transferred by Struna from a federally insured credit union. Further, unlike the

    other investors seeking to recover funds from AB&C for their personal benefit, the Liquidating

    2 The NCUSIF is a revolving fund used by the NCUA Board to carry out certain functions, pursuant to the FederalCredit Union Act. 12 U.S.C. § 1783(a).

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 7 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    8/30

      8

    Agent is performing a public function in accordance with all powers afforded it under the FCUA,

    12 U.S.C. § 1751 et seq. to minimize the loss to the NCUSIF.

    Congress recognized the significance of expanding the powers afforded to the Liquidating

    Agent, thus protecting federally insured financial institutions. For example, the powers afforded

    the Liquidating Agent to void and recover fraudulently transferred assets, which rights are superior

    to a trustee under Title 11 ( see e.g., 12 U.S.C. § 1787(b)(16)(D)), were enacted through the Crime

    Control Act of 1990. Specifically, House Bill 8758 (136 Cong. Rec. H. 8758) included SEC. 2123.

    DISALLOWING USE OF BANKRUPTCY TO EVADE COMMITMENTS TO MAINTAIN

    THE CAPITAL OF A FEDERALLY INSURED DEPOSITORY INSTITUTION OR TO EVADE

    CIVIL OR CRIMINAL LIABILITY. This section adopted the above referenced 12 U.S.C. §

    1787(b)(16), thus, evidencing Congress’ clear intent that the Liquidating Agent should be afforded

    the utmost priority in recovering assets for the benefit of the NCUSIF and that individual debtors

    should not defeat these rights, such as through filing bankruptcy. Similar powers existed and pre-

    date that Crime Control Act of 1990, including 12 U.S.C. § 1787(g) cited above.

    To date, the Receiver’s only argument  in defense of his refusal to acknowledge the

    Liquidating Agent’s powers under the FCUA  is that a Receiver is different from a trustee in

     bankruptcy, and a Receiver sits in equity rather than being subject to a statutory scheme such as a

     bankruptcy trustee. The Liquidating Agent submits that the Receiver’s argument is of no import

    to the analysis. Simply put, the Liquidating Agent exercised its powers to first attach Struna’s

    transfer in accordance with 12 U.S.C. § 1787(b)(2)(G), then avoid same in accordance with 12

    U.S.C. § 1787(b)(16). On account of the Liquidating Agent exercising its powers, no Court may

    issue an order that restrains or affects the Liquidating Agent’s exercise of its powers. 12 U.S.C.

    § 1787(g). Accordingly, since a Court does not have authority to restrain the Liquidating Agent’s

     powers, certainly the Receiver is without such authority. Admittedly, the Receiver is not a trustee

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 8 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    9/30

      9

    in bankruptcy. However, this alleged distinguishing fact does not, and cannot, invalidate the

     balance of 12 U.S.C. § 1787(b)(16). It is pursuant to 12 U.S.C. § 1787(b)(16)(A) and (B) that the

    Liquidating Agent voided the transfer to AB&C, and is entitled to recover the entire $100,000.00.

    In effect, the Receiver’s defense goes beyond “restraining or affecting” the Liquidating

    Agent powers. The Receiver seeks an order denying the Liquidating Agent’s claim for return of

    the entire $100,000.00, and thus negating  the Liquidating Agent’s powers. Consistent with

    Congress’  clear intent when enacting Section 2123 of the Crime Control Act of 1990

    (DISALLOWING USE OF BANKRUPTCY TO EVADE COMMITMENTS TO MAINTAIN

    THE CAPITAL OF A FEDERALLY INSURED DEPOSITORY INSTITUTION OR TO EVADE

    CIVIL OR CRIMINAL LIABILITY), the Liquidating Agent should be entitled to an order

    requiring the Receiver to distribute to the Liquidating Agent the entire $100,000.00 transferred by

    Struna to AB&C. Upon information and belief, the Crime Control Act of 1990 merely addressed

    a trustee in bankruptcy because other sections of the United States Code, namely those found in

    Title 11, vested the trustee with competing powers. Congress sought to resolve the conflict in

    favor of the Liquidating Agent. Congress did not need to address the powers of a Receiver,

     because as stated by the Receiver himself, the Receiver is not vested with statutory authority.

    Thus, no conflicting powers between the Liquidating Agent and Receiver exist, and certainly, the

    Receiver remains subject to all powers afforded the Liquidating Agent under the FCUA.

    Struna owes the Liquidating Agent in excess of $2 million, and the Liquidating Agent has

    exercised all powers afforded to it to recover assets, attach assets, and void transfers in order to

    minimize the loss to the NCUSIF. Now, in contravention of the express language of 12 U.S.C. §

    1787(g), the Receiver seeks an order restraining and, in fact, altogether negating the powers of the

    Liquidating Agent. The United States District Court for the Northern District of Ohio has

     previously addressed 12 U.S.C. § 1787(g) and its impact on the Liquidating Agent’s post -

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 9 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    10/30

      10

    receivership powers in NCUAB v. Zovko, Case No. 1:13-cv-01430-SO.3  In Zovko, the court cited

    to Courtney v. Halleran, 485 F.3d 942, 948 (7th Cir. 2007) in holding that because of the powers

    specifically granted by 12 U.S.C. § 1787(g):

    “the regulatory conduct of the liquidating agent falls under the discretionary functionexception and qualifies as a protected discretionary function.” Courtney v. Halleran, 485 F.3d 942, 948 (7th Cir. 2007); Freeman v. FDIC , 56 F.3d 1394, 1399(D.C. Cir. 1995) (“The exercise of these powers [under 12 U.S.C. §1821] may not be restrained by any court, regardless of the claimant’s likelihood of success on themerits of his underlying claims.”). In Halleran, the Seventh Circuit held that 12U.S.C. § 1821, the FDIC equivalent to the FCUA’s § 1787, broadly prohibited suitagainst the FDIC due to its post-receiver decisions regarding the disposition of bankassets. Halleran, 485 F.3d at 948 (“The Ninth Circuit described the ban as anessential part of the FDIC’s  ability to function as a receiver.”)  (citing Sahni v.

     American Diversified Partners, 83 F.3d 1054, 1058 (9

    th

     Cir. 1996)).

    See, Zovko Order (Ex. D) at p. 11.

    The Court in  Zovko went on to hold that “the liquidating agent has broad discretionary

     powers to maintain and dispose of a credit union’s assets post-liquidation.”  See Zovko (Ex. D) at

     p. 12, citing Mahajan, 923 F. Supp. 2d at 1140 (“In affirming Congress’s intention to create a

     broad injunction against court interference with the FDIC’s ongoing exercise of its powers as a

    receiver . . . the Seventh Circuit noted that there are specific provisions of FIRREA that permit the

    FDIC to act in a discretionary manner that is not subject to review[,] . . . [including the ability to]

    ‘transfer assets or liability without any further approvals.’”).4 

    Based on the foregoing, the Liquidating Agent is entitled to recover the entire amount of

    its claim for $100,000.00 in accordance with 12 U.S.C. § 1787(b)(16).

    B. The Receiver Must Exhaust Administrative Remedies.

    The Receiver, in denying the Liquidating Agent’s request for return of the $100,000.00, is

    seeking, and in fact making, a determination of rights with respect to assets of the Liquidating

    3 Attached hereto as Exhibit D is the Court’s Order granting the Liquidating Agent’s Motion to Strike AffirmativeDefenses in Zovko.4 Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub. L. No. 101 -73.

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 10 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    11/30

      11

    Agent. No Court has jurisdiction over any claims, including those of the Receiver, seeking a

    determination of rights to an asset of the Liquidating Agent unless the claimant, the Receiver in

    this case, exhausted administrative remedies. In this case, the Liquidating Agent avoided Struna’s 

    transfer of $100,000.00 to AB&C in accordance with 12 U.S.C § 1787(b)(16). The Receiver

    refused to return the $100,000.00 and advised the Liquidating Agent that it must submit itself to

    the  jurisdiction of the Court. The Receiver’s refusal is in direct contravention to the express

    language of 12 U.S.C. § 1787(b)(13)(D). As such, the Receiver must either return the entire

    $100,000.00 or comply with the requirements of the administrative claims process.

    The FCUA explicitly limits a court’s jurisdiction over actions seeking determinations with

    respect to assets of the Liquidating Agent, in this case the right to return of the $100,000.00

    fraudulently transferred by Struna to AB&C. Specifically, 12 U.S.C. § 1787(b)(13)(D) provides:

    (D) Limitation on judicial review. Except as otherwise providedin this subsection, no court shall have juri sdiction  over –  

    (i) any claim or action for payment from, or any action seeking adetermination of rights with respect to, the assets of any credit

    union for which the Board has been appointed liquidating agent ,including assets which the Board may acquire from itself as suchliquidating agent; or

    (ii) any claim relating to any act or omission of such credit union orthe Board as liquidating agent. [Emphasis added.]

    Under FIRREA, Congress established a mandatory administrative claims process to

     provide a mechanism for resolving as promptly and efficiently as possible all claims against failed

    financial institutions. See, e.g., Sicherman v. NCUA Bd ., 535 B.R. 196 (N.D. Ohio 2015) (holding

    that Bankruptcy Court was without jurisdiction over the Trustee's action to determine rights to the

    real property); see also, Maher v. FDIC , 441 F.3d 522, 525 (7th Cir. 2006); Maher v. Harris Trust

    & Sav. Bank , 75 F.3d 1182, 1190-91 (7th Cir. 1996); Intercontinental Travel Mktg., Inc. v. FDIC ,

    45 F.3d 1278, 1282-83 (9th Cir. 1994); Henderson v. Bank of New England , 986 F.2d 319, 321 (9th 

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 11 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    12/30

      12

    Cir. 1993); accord Bueford v. RTC , 991 F.2d 481, 484 (8th Cir. 1993); Meliezer v. RTC , 952 F.2d

    879, 882 (5th Cir. 1992). As the United States Court of Appeals for the Fifth Circuit has explained

    with respect to the FDIC, which is equally applicable here:

    To assure that the RTC or Federal Deposit Insurance Corporationcould deal expeditiously with failed depository institutions,Congress created a new claims determination procedure by whichthe creditors of a failed institution may be required to first presenttheir claims to the Receiver for administrative consideration before pursuing a judicial remedy. 12 U.S.C. § 1821(d)(3).

     Meliezer , 952 F.2d at 881 (footnote omitted). Requiring exhaustion of the mandatory claims

     process fulfills the purpose of FIRREA “to ensure that the assets of a failed institution are

    distributed fairly and promptly among those with valid claims against the institution, and to

    expeditiously wind up the affairs of the institution.”  McCarthy v. FDIC , 348 F.3d 1075, 1079 (9th 

    Cir. 2003) (quoting Freeman v. FDIC , 56 F.3d 1394, 1401-02 (D.C. Cir. 1995)).

    Pursuant to FIRREA, Congress set forth the powers, rights, and duties of the NCUA Board

    when it is acting as Liquidating Agent of a failed financial institution. FIRREA provides the claims

     procedures against receivers or liquidating agents for banks (Federal Deposit Insurance

    Corporation or FDIC), savings and loan associations (Resolution Trust Corporation or RTC) and

    federal credit unions (National Credit Union Administration or NCUA). See, 12 U.S.C. §§ 1821

    (FDIC claims), 1441a (RTC claims), and 1787 (NCUA claims). These provisions in the various

    code sections are identical in all material respects. Case law construing any of these provisions,

    therefore, applies with equal force to all comparable provisions.  Estate of Underwood v. National

    Credit Union Admin., 665 A.2d 621, 627 (D.D.C. 1995). A creditor who wishes to pursue a claim

    against a failed institution or its assets must present that claim to the liquidating agent, which in

    this case is the NCUA Board, acting in its capacity as Liquidating Agent.  Maher v. Harris Trust

    & Sav. Bank , 75 F.3d 1182, 1190 (7th Cir. 1996). See also, NCUAB v. Lormet Community Federal

    Credit Union, 2010 U.S. Dist. LEXIS 122379 (N.D. Ohio 2010) (describing that the [Federal

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 12 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    13/30

      13

    Credit Union] Act precludes judicial review until after the administrative claims procedure is

    complete). See also, Nat ’ l Union Fire Ins. Co. of Pittsburgh, PA v. City Sav. F.S.B., 28 F. 3d 376,

    392 (3rd Cir. 1994) (holding that “the language contained in § 1821(d)(13)(D)  barring ‘any action

    seeking a determination of rights’ is not limited in its application to actions brought by creditors;

    it applies to debtors as well, and applies regardless of whether the action is asserting a right to

     payment”). 

    As recognized by the United District Court for the Northern District of Ohio, the FCUA is

    comprehensive federal legislation designed to protect all depositors and creditors of federal credit

    unions. See,  Lormet . The FCUA established a procedure for claimants, such as the debtor 

    5

    , to

    submit claims against liquidated credit unions, the procedure for the determination of such claims,

    and otherwise restricts courts of jurisdiction over any action seeking a determination of rights with

    respect to assets of the Liquidating Agent.  Id.; See also, 12 U.S.C. §§ 1787(b)(3), 1787(b)(5) and

    1787(b)(13)(D), and 12 C.F.R. § 709.6. Title 12, § 709.6 of the Code of Federal Regulations

     provides as follows:

    Initial determination of creditor claims by the liquidating

    agent.

    (a)(1) Any party wishing to submit a claim against the liquidatedcredit union must submit written proof of claim in accordance withthe requirements set forth in the notice to creditors. A failure tosubmit a written claim within the time provided in the notice tocreditors shall be deemed a waiver of said claim and claimantshall have no further rights or remedies with respect to such

    claim. [Emphasis added.]

    Thereafter, 12 C.F.R. § 709.6(d) provides:

    (d) If a claim or any portion thereof is disallowed, the notice to theclaimant shall contain a statement of the reasons for thedisallowance and an explanation of rights pursuant to Section709.7 of this part.

    5 The Receiver is a debtor of the Liquidating Agent as the Liquidating Agent avoided a transfer and has the right torecover same under 12 U.S.C. § 1787(b)(16)(A)-(B), yet the Receiver is refusing to return same.

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 13 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    14/30

      14

    The FCUA vests the Liquidating Agent with authority to determine claims. 12 U.S.C. §

    1787(b)(3). The Liquidating Agent is further vested with authority to disallow claims. In this

    regard, 12 U.S.C. § 1787(b)(5)(D) provides:

    Authority to disallow claims. The liquidating agent may disallowany portion of any claim by a creditor or claim of security, preference, or priority which is not proved to the satisfaction of theliquidating agent.

    The failure of the Receiver to not only exhaust administrative remedies, but to timely

    exhaust such remedies is detrimental to the Receiver’s ability to refuse to return the entirety of the

    $100,000.00 sought to be returned to the Liquidating Agent in accordance with 12 U.S.C. §

    1787(b)(16)(B). The Receiver must not only timely file a creditor ’s claim, but once a

    determination is made with respect to such claim, the determination must be timely appealed. A

    claim that is disallowed as being untimely shall be final. 12 U.S.C. § 1787(b)(5)(C)(i).  But see,

    12 U.S.C. § 1787(b)(5)(C)(ii). Similarly if a claimant fails to request administrative review of a

    claim or file suit on such claim in a timely manner, then “the claim shall be deemed to be

    disallowed….such disallowance shall be final, and the claimant shall have no further rights or

    remedies with respect to such claim.”  12 U.S.C. § 1787(b)(6)(B).

    Adhering to the administrative claims process is mandatory for all parties asserting claims

    against a failed institution for which a Liquidating Agent has been appointed. See,  Bueford v.

     RTC, 991 F.2d 481, 485 (8th Cir. 1993) (citations omitted). Exhaustion of the administrative claims

     process is “explicitly jurisdictional.”  Rosa v. RTC, 938 F.2d 383, 395 (3rd Cir. 1991). The FCUA

    limits, and, in fact, prohibits, any court from having jurisdiction with respect to the Liquidating

    Agent except as set forth in the FCUA, and the Receiver cannot simply compel the Liquidating

    Agent to submit to jurisdiction of the Court as it is the Receiver that has the express obligation to

    exhaust administrative remedies with the Liquidating Agent. As such, the Receiver must either

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 14 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    15/30

      15

    return the $100,000.00 as demanded by the Liquidating Agent or exhaust administrative remedies

     by filing a claim with the Liquidating Agent.

    Finally, the United States Court of Appeals for the Fourth Circuit recognized that the failure

    to exhaust administrative remedies is detrimental to a party, even if such party’s action was

    commenced prior to the appointment of a liquidating agent. See, Brady Development Co. v. RTC ,

    14 F.3d 998 (4th  Cir. 1994). In this case, the Receiver’s action was pending prior to the

    appointment of the Liquidating Agent, but in order for the Receiver to maintain its defense against

    the Liquidating Agent’s Claim, the Receiver must follow the administrative claims process. The

    Fourth Circuit interpreted the relevant statute as follows:

    The statute further states that “the claimant may…file suit onsuch claim (or continue an action commenced before theappointment of the receiver) in the district court or territorialcourt of the United States…” 12 U.S.C. § 1821(d)(6)(A). Underthis provision a claimant may continue a previously filed actionafter the administrative process has be completed if he had a suit pending against the savings and loan before the savings and loanwas placed into receivership. Congress clearly envisioned thatadministrative and judicial review of claims could not take placesimultaneously.

     Id. at 1003. The Liquidating Agent’s assertion that the Receiver must follow the administrative

    claims process is consistent with the court’s analysis in Brady. The Receiver is asserting a defense

     by refusing to return the entire $100,000.00 to the Liquidating Agent that triggers the requirement

    that the Receiver exhaust administrative remedies. To maintain such defense, asserted in an action

    that was pending prior to the appointment of the Liquidating Agent, the Receiver must exhaust

    administrative remedies, lest this Court is without jurisdiction, pursuant to 12 U.S.C. §

    1787(b)(13)(D), to make a determination on the Receiver’s defense.

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 15 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    16/30

      16

    Based on the foregoing, the Receiver must either return the entire $100,000.00 to the

    Liquidating Agent, or comply with the requirements of the administrative claims process in

    accordance with the requirements of the FCUA.

    IV. CONCLUSION

    Struna fraudulently transferred $100,000.00 to AB&C. Pursuant to 12 U.S.C. §

    1787(b)(16), the Liquidating Agent avoided the fraudulent transfer and is entitled recover the full

    $100,000.00. By refusing to do so, the Receiver is seeking to restrain and affect the Liquidating

    Agent’s exercise of its powers in conflict with 12 U.S.C. § 1787(g).

    Additionally, the Receiver, in denying the Liquidating Agent’s request for return of the

    $100,000.00, is seeking, and in fact making, a determination of rights with respect to assets of the

    Liquidating Agent. The FCUA, and more specifically, 12 U.S.C. § 1787(b)(13)(D), explicitly

    limits a court’s jurisdiction over actions seeking determinations with respect to assets of the

    Liquidating Agent.

    Based on the foregoing, the Liquidating Agent is entitled to the full amount of its

    $100,000.00 Claim.

    Respectfully submitted, this the 10th day of March, 2016.

    /s/ Samuel D. FlederSamuel D. Fleder, Federal I.D. No. 10994SMITH DEBNAM NARRONDRAKE SAINTSING & MYERS, LLPPO Box 26268Raleigh NC 27611Telephone: (919) 250-2000Facsimile: (919) 250-2211Email: [email protected]  Local Counsel for National Credit Union Administration Board, acting in its capacity as

     Liquidating Agent for Taupa Lithuanian Credit

    Union, Inc.

    Samuel J. Lauricia III (0078158)Matthew C. Miller (0084977)

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 16 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    17/30

      17

    WESTON HURD LLP The Tower at Erieview1301 E. 9th Street, Suite 1900Cleveland, Ohio 44114Phone: 216-241-6602; Fax: 216-641-8369

    E-mail: [email protected]@westonhurd.comCounsel for National Credit Union Administration

     Board, acting in its capacity as Liquidating Agent

     for Taupa Lithuanian Credit Union, Inc.

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 17 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    18/30

      18

    IN THE UNITED STATES DISTRICT COURTDISTRICT OF SOUTH CAROLINA

    ANDERSON/GREENWOOD DIVISION

    IN RE:

    RECEIVER FOR BONNIE GENEWILSON AND ATLANTIC BULLION& COIN, INC.

    )

    ))))

    CIVIL ACTION NO. 8:12-cv-02078-

    JMC

    CERTIFICATE OF SERVICE

    I, Samuel J. Lauricia III, of Weston Hurd LLP, state under penalty of perjury:

    That I am, and at all times hereinafter-mentioned was, more than eighteen (18) years ofage; and

    That on this date, I served copies of the foregoing MEMORANDUM IN SUPPORT OFMOTION IN SUPPORT OF UNRESOLVED OBJECTIONS BY THE NATIONAL CREDITUNION ADMINISTRATION BOARD ACTING IN ITS CAPACITY AS LIQUIDATINGAGENT FOR TAUPA LITHUANIAN CREDIT UNION, INC. by service through the CM/ECFsystem which will send notification of such filing to the following and/or via first class mailthrough the U.S. Postal Service at the following addresses:

    VIA CM/ECFWilliam J. Watkins, Jr., Esq.U.S. Attorney’s Office (Greenville) 

    Martin Kyle Thompson, Esq.Clawson and Staubes (Greenville)

    Beattie B. Ashmore, Esq.Beattie B. Ashmore Law Office

    Lauren S. Price, Esq.Tollison Law Firm

    Lewis Walter Tollison, III, Esq.Tollison Law Firm

    Kimberly T. Thomason, Esq.Truluck Thomason

    James W. Bannister, Esq.Bannister and Wyatt

    Edward B. Davis, Esq.Bell Davis and Pitt

    VIA FIRST CLASS MAILGordon L. Hallc/o Brighton-Nicole Jorgensen3546 East Presidio CircleMesa, AZ 85213

    Benton Tyler Thomas Hallc/o Brighton-Nicole Jorgensen3546 East Presidio CircleMesa, AZ 85213

    Small Farmer’s Journal, Inc. P.O. Box 1627Sister, OR 97759

    Diana Vossbrinck503 Taylor StreetAnderson, SC 29625

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 18 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    19/30

      19

    This the 10th day of March, 2016.

    /s/ Samuel D. FlederSamuel D. Fleder, Federal I.D. No. 10994SMITH DEBNAM NARRONDRAKE SAINTSING & MYERS, LLPPO Box 26268Raleigh NC 27611Telephone: (919) 250-2000Facsimile: (919) 250-2211Email: [email protected]  Local Counsel for National Credit Union

     Administration Board, acting in its capacity as Liquidating Agent for Taupa Lithuanian Credit

    Union, Inc.

    8:12-cv-02078-JMC Date Filed 03/10/16 Entry Number 183-1 Page 19 of 19

  • 8/17/2019 NCUA Motion and Receiver's Response

    20/30

    1

    IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF SOUTH CAROLINA

    ANDERSON/GREENWOOD DIVISION

    IN RE: RECEIVER FOR RONNIE GENEWILSON AND ATLANTIC BULLION &COIN, INC.

    Civil Action No. 8:12-cv-2078-JMC

    RECEIVER’S BRIEF IN OPPOSITION

    TO NCUA’S MOTION IN SUPPORT

    OF UNRESOLVED OBJECTIONS

    Counsel for the Receiver, Beattie B. Ashmore, respectfully submits its Brief in

    Opposition to the National Credit Union Administration Board’s (the “NCUA”) Motion in

    Support of Unresolved Objections. [ECF No. 183.] The Receiver requests this Court deny

     NCUA’s motion and overrule its objections on the grounds that: (1) equity dictates that the

     NCUA is not entitled to recover the entire $100,000; (2) the NCUA is not entitled to avoid

    the transfers John Struna (“Struna”) made to Atlantic Bullion & Coin, Inc. (“AB&C”); (3)

    the Receiver does not have to submit to the NCUA’s administrative claims process; and (4)

    the NCUA’s rights are not superior to the Receiver’s rights. 

    I.  FACTUAL BACKGROUND 

    On July 30, 2012, Ronnie Gene Wilson (“Wilson”) and AB&C pled guilty to two

    counts of mail fraud stemming from their involvement in a criminal Ponzi scheme

    involving hundreds of victims and millions of dollars. See United States v. Ronnie Gene

    Wilson, et al, 8:12-cr-320-JMC. As part of the fraudulent investment scheme, Wilson,

    through his company AB&C and other agents, recruited individuals to purportedly invest

    in the purchase and sale of silver holdings. Investors were promised high rates of returns

    on their investment and subjected to highly unorthodox investment practices. Some

    8:12-cv-02078-JMC Date Filed 03/28/16 Entry Number 195 Page 1 of 11

  • 8/17/2019 NCUA Motion and Receiver's Response

    21/30

    2

    investors received substantial returns and profits through payments of ill-gotten gains from

    AB&C while other investors lost large sums of money.

    Pursuant to the Court Order and related to the above noted criminal matter, the

    Receiver was tasked with assuming management and control over all the financial and

     business affairs for a number of individuals and companies (collectively “AB&C

    Receivership Entities”).  The Court Order requires the Receiver, among other things, to

    locate and manage assets previously acquired by and/or in the name/possession of the

    AB&C Receivership Entities. In addition, the Receiver was ordered to develop and

    distribute a Proof of Claim form and submit a Plan for Claims Administration and

    Distribution of Proceeds to the Court for approval.

    II.  BRIEFPROCEDURALBACKGROUND 

    On October 10, 2014, the Northern District of Ohio, in case number 1:14-cv-02199,

    styled NCUA v. John Struna, et al ., the court granted the NCUA attachment of a claim that

    Struna could file with the Receiver for AB&C. (Agreed Order Granting Plaintiff’s

    Combined (1) Motion for Prejudgment Attachment; and (2) Motion for Preliminary

    Injunction,  NCUA v. John Struna, et al ., Case No. 1:14-cv-02199 (N.D. Ohio Oct. 10,

    2014), ECF No. 15. (the “Ohio Order”, attached hereto as Exhibit A.)) On October 15,

    2014, the NCUA, acting in its capacity as liquidating agent for Taupa Lithuanian Credit

    Union (“Taupa”), filed a claim with the Receiver demanding return  of the entire $100,000

    Struna invested with AB&C. On December 10, 2014, the NCUA supplemented its claim.

    [Supplement to NCUA Claim (the “Supplement”), attached hereto as Exhibit B.] On

    February 3, 2016, the NCUA submitted an Objection to Claim Form, accompanied by a

    letter explaining its objection. [Letter from NCUA dated February 3, 2016 (the “Letter”),

    8:12-cv-02078-JMC Date Filed 03/28/16 Entry Number 195 Page 2 of 11

  • 8/17/2019 NCUA Motion and Receiver's Response

    22/30

    3

    attached hereto as Exhibit C.] On March 10, 2016, the NCUA filed the instant motion,

    together with a memorandum in support of its motion. [ECF Nos.183 and 183-1.]

    III.  DISCUSSION 

    A. Equity Dictates that the NCUA i s not Enti tled to Recover the enti re

    $100,000

    In receivership proceedings, the district court sits in equity. S.E.C. v. Byers, 637 F.

    Supp. 2d 166, 168 (S.D.N.Y. 2009) aff’d sub nom. S.E.C. v. Malek , 397 F. App’x 711 (2d

    Cir. 2010) and aff’d sub nom. S.E.C. v. Orgel , 407 F. App’x 504 (2d Cir. 2010); Kathy

    Bazoian Phelps, Handling Claims in Ponzi Scheme Bankruptcy and Receivership Cases, 42

    GOLDEN GATE U.  L.  R EV.  572  (2012), available at

    http://digitalcommons.law.ggu.edu/ggulrev/vol42/iss4/6.

    “The fact that the investors might be entitled under other law to recover their assets

    does not end the inquiry in this equity receivership because equitable concerns may

    supersede those other rights.” Byers, 637 F. Supp. 2d at 183. This Court has the authority

    to consider the culpability of any person seeking to recover under the plan of distribution.

     Id.; S.E.C. v. Credit Bancorp, Ltd., No. 99 CIV. 11395 RWS, 2000 WL 1752979, at *35

    n.48 (S.D.N.Y. Nov. 29, 2000) aff'd , 290 F.3d 80 (2d Cir. 2002) (noting that “unclean

    hands” of parties “would be a relevant consideration in equity”). 

    The NCUA succeeds to “all rights, titles, powers, and privileges of the credit

    union, and of any member, accountholder, officer, or director of such credit union with

    respect to the credit union and the assets of the credit union.” 12 U.S.C § 1787(b)(2)(A)(i).

    It follows that the NCUA would also succeed to any bad acts or fraud committed by the

    credit union, its officers, directors, employees, or agents.

    8:12-cv-02078-JMC Date Filed 03/28/16 Entry Number 195 Page 3 of 11

  • 8/17/2019 NCUA Motion and Receiver's Response

    23/30

    4

    Consequently, the NCUA does not come into this Court with clean hands. Upon

    further investigation into Struna, the Receiver discovered that Struna conspired with

    Taupa’s former CEO, Alex Spirikaitis (“Spirikaitis”), to cause approximately 46 fraudulent

    transfers into Struna’s accounts. (Criminal Complaint, United States v. Spirikaitis, Case

     No. 1:14-cr-00025-JG (N.D. Ohio July 16, 2013), ECF No. 1, attached hereto as Exhibit

    D). Spirikaitis, similar to Struna, pleaded guilty to conspiracy to commit bank fraud, and

    was sentenced back in 2014. (Judgment in a Criminal Case, United States v. Spirikaitis,

    Case No. 1:14-cr-00025-JG (N.D. Ohio December 1, 2014), ECF No. 38, attached hereto

    as Exhibit E).

    The unclean hands of Taupa is a vital consideration in this Court of equity. If the

     NCUA were to walk away with the entire $100,000, it would be unjustly enriched despite

    Taupa’s central role, via Spirikaitis, in Struna’s fraud. Based on the forgoing, the Receiver

    requests that this Court allow the NCUA to only receive distributions on par with the

    defrauded investors and not be given any priority or special consideration.

    B. 

    The NCUA is not Entitl ed to Avoid the Transfers Struna Made to AB& C  

    As previously outlined, Taupa’s own CEO played a central (and fraudulent) role in

    Struna’s scheme. The NCUA argues that it has the right to avoid a transfer to any person

    who the NCUA determines is a debtor of the credit union, if such party or person

    “voluntarily or involuntarily made such transfer or incurred such liability with the intent to

    hinder, delay, or defraud the insured credit union or the Board.” 12 U.S.C. § 1787(b)(16).

    Struna’s intent to defraud, hinder or delay, is negated by the fact that Taupa’s own CEO

    controlled the fraud, helped Struna commit the fraud, and facilitated the multiple transfers,

    totaling $100,000, to AB&C.

    8:12-cv-02078-JMC Date Filed 03/28/16 Entry Number 195 Page 4 of 11

  • 8/17/2019 NCUA Motion and Receiver's Response

    24/30

    5

    The NCUA cannot now come into this Court of equity, stand behind the shield of

    Section 1787 of Title 12, and expect that any supposed fraudulent transfer would not be

    offset by Taupa’s own fraud, hindrance, or delay. 

    C. The Receiver Does Not have to Submi t to the NCU  A’s Administrative

    Claims Process

    i.   NCUA’s Reliance on 1787(g) 

    The NCUA relies on Section 1787(g) of Title 12 to maintain that this Court does

    not have jurisdiction over the claim it submitted to the Receiver. Section 1787(g) states

    “[e]xcept as provided in this section, no court may take any action, except at the request of

    the Board of Directors by regulation or order, to restrain or affect the exercise of powers or

    functions of the Board as a conservator or a liquidating agent.” 12 U.S.C. § 1787(g).1 

    In effect, the NCUA has requested this Court take action, by submitting a claim to

    the Receiver and by filing this instant motion. Back in 2014, the NCUA was directed by

    the Ohio Order to file a claim with the Receiver, after it requested such an order from the

    Ohio court. (Ex. A, at p. 2.) The Northern District of Ohio, and not this Court, affected

    the exercise of the NCUA’s powers by agreeing with the NCUA’s request, and directing

    the NCUA to submit to the Receiver’s claims process. Specifically, the Ohio Order

    explains

    the Motion requests an order attaching a claim that Defendant John Strunacould otherwise file with Beattie B. Ashmore, Receiver, appointed in caseno. 12-cv-2078-JMC in the United States District Court, District of SouthCarolina. Specifically, the Liquidating Agent requests authority to file aclaim against Ronnie Gene Wilson, owner of Atlantic Bullion & Coin,Inc. for $100,000.00.

    (See id.) (emphasis added).

    1 The NCUA’s power under Section 1787(g) is not absolute and courts agree. See  Bumpus v. Nat’lCredit Union Admin., No. CIV. A. 91-11096-Z, 1992 WL 97984, at *4 (D. Mass. Apr. 29, 1992) (finding that“when … the NCUA arrogates a power not granted it by Congress, courts may intervene notwithstanding §

    1787(g)”).

    8:12-cv-02078-JMC Date Filed 03/28/16 Entry Number 195 Page 5 of 11

  • 8/17/2019 NCUA Motion and Receiver's Response

    25/30

    6

    The NCUA does not have the right to force the Receiver to submit to the NCUA’s

    administrative claims process after it specifically requested the Ohio court allow it to file a

    claim against the Receiver. The NCUA’s request upon the Ohio court, and the request

    upon this Court are contradictory. The Ohio Order concerned only filing a claim with the

    Receiver, and does not contemplate any claim that the Receiver may file with the NCUA.

     Nevertheless, it is hard to comprehend that the Receiver would ever file a claim with the

     NCUA considering it is the NCUA attempting to recover monies from the Receiver.

    The NCUA should not be allowed to come into this Court, make a claim to funds,

    and then in the eleventh hour insist upon the Receiver and this Court to now follow

     NCUA’s administrative claim procedures. This is nonsensical, especially after a federal

     judge, at the request of the NCUA, directed the NCUA to submit to the Receiver’s claims

     process, and after 17 months have passed since the NCUA first submitted its claim against

    the Receiver.

    ii.   NCUA’s Reliance on 12 C.F.R. Part 709 and the Notice Provisions

    Within 12 U.S.C. Section 1787(b)

    The NCUA insists that the Receiver must submit to its claims process and exhaust

    administrative remedies under that process. In support of this contention, the NCUA cites

    to Title 12, Part 709 of the Code of Federal Regulations to explain the “mandatory” claims

     process for “creditors.” Part 709 is aptly titled “Involuntary Liquidation of Federal Credit

    Union and Adjudication of Creditor  Claims Involving Federally Insured Credit Unions in

    Liquidation.” 12 C.F.R. § 709 (emphasis added). The scope of the regulation explains that

    it involves “adjudication of creditor  claims in all cases involving federally-insured credit

    unions.” 12 C.F.R. § 709.0 (emphasis added). The definitions section affirms that a

    “Claim means a creditor’s  claim against the credit union in liquidation.” 12 C.F.R. §

    8:12-cv-02078-JMC Date Filed 03/28/16 Entry Number 195 Page 6 of 11

  • 8/17/2019 NCUA Motion and Receiver's Response

    26/30

    7

    709.1(d) (emphasis added). Title 12, Part 709 complements the notice provisions within 12

    U.S.C. Section 1787(b).

    However, the NCUA’s reliance on 12 C.F.R. Part 709 is misplaced because the

    Receiver is not a “creditor” of Taupa despite the NCUA maintaining “[t]he Receiver must

    … file a creditor’s claim.” [ECF No. 183-1, at p. 14]. A creditor is a “person to whom a

    debt is owing by another person, called the ‘debtor.’” BLACK ’S LAW DICTIONARY (9th ed.

    2009), available at Westlaw BLACKS.

    This analysis is harmonious with Acciard v. Whitney, No. 2:07-CV-00476-FTM-36,

    2011 WL 4552564, at *4 (M.D. Fla. Sept. 30, 2011). In Acciard , the court explained

    [t]he implementing regulations of § 1787 provide little guidance in defininga “claim” as “a creditor’s claim against the credit union in liquidation.” 12C.F.R. § 709.1(d);  see also 12 C.F.R. § 709. Additionally, the FinancialInstitutions Reform, Recovery, and Enforcement Act (“FIRREA”) does not

    define the terms claim or creditor either.

    Turning to the Bankruptcy Code for definitional guidance, the  Acciard   court concluded

    that “claim” or “creditor’s claim” is essentially an action asserting a right to payment. In

    defending the instant motion, and defending against the NCUA’s claim for the entire

    $100,000, the Receiver is not asserting a right to payment, but merely asserting objections

    to the NCUA’s assertion to a right of payment.

     Notably, in footnote five of its brief, the NCUA declares “[t]he Receiver is a debtor  

    of the Liquidating Agent…” [ECF No. 183-1, at p. 13] (emphasis added). If the NCUA

     believes that the Receiver is a debtor, then it is peculiar for the NCUA to insist that the

    Receiver follow the creditor’s  claim process when it is wholly inapplicable. The NCUA

    should not be allowed to mold the applicable statutes to fit its needs by using the words

    “debtor” and “creditor” interchangeably.

    8:12-cv-02078-JMC Date Filed 03/28/16 Entry Number 195 Page 7 of 11

  • 8/17/2019 NCUA Motion and Receiver's Response

    27/30

    8

    Despite the foregoing, this Court does not need to reach the issue of whether the

    Receiver is a creditor, a debtor, or anything else for two reasons: (1) the NCUA was

    directed by the Northern District of Ohio to submit to the Receiver’s claims process, as

    outlined in Part III.C(i),  supra, of this Brief; and (2) the NCUA did not abide by its own

    administrative claims process. The NCUA’s administrative claims process outlines that

    “any party wishing to  submit a claim against the liquidated credit union must submit

    written proof of claim in accordance with the requirements  set forth in the notice to

    creditors.” 12 U.S.C. Section 1787(b)(13)(D). The NCUA never provided appropriate

    notice to the Receiver in accordance with notice provisions in 12 C.F.R. § 709, 12 U.S.C.

    Section 1787(b)(13)(D).2  To this effect, the Receiver has not been given a full and fair

    opportunity, under the NCUA’s administrative process, to object to the claims.3 

    iii.   NCUA’s Reliance on 12 U.S.C. Section 1787(b)(13)(D)

    In the alternative, the NCUA attempts to force the Receiver to comply with the

     NCUA’s administrative claims process because of the phrase in 12 U.S.C. Section

    1787(b)(13)(D) “no court shall have jurisdiction over … any act ion seeking a

    2 If the Receiver were forced to comply with the NCUA’s administrative claims process, then it islikely that the NCUA would deny as untimely the claim of the Receiver, who never  — via formal mailednotice or otherwise — was given constitutionally sufficient notice of the requirement to file a claim against the NCUA before the bar date. Such a denial deprives the Receiver of its claim without ever affording it noticeof the deprivation or an opportunity to defend against it. Such a deprivation without appropriate noticeviolates due process. See  Elmco Properties,  Inc. v. Second Nat. Fed. Sav. Ass’n, 94 F.3d 914, 920 (4th Cir.1996) (discussing untimely claims against the Resolution Trust Corporation acting as receiver of a failedfederal savings association).

     Nothing in the record suggests that the Receiver had actual knowledge of the NCUA’s

    administrative claims process or bar date, the Receiver was never placed on inquiry notice of the claims process since the NCUA submitted to the Receiver’s claims process.Congress has established FIRREA’s administrative claims process as the sole door through which a

    claimant against a failed bank may enter. The NCUA may not constitutionally close that door and shut off theexclusive opportunities for review to which it leads without giving the claimant appropriate notice of itsclosing. See  Elmco Properties, 94 F.3d at 922.

    3 Under this receivership proceeding, the Receiver has the opportunity to respond and object to the NCUA’s claim. The NCUA attempts to undermine judicial economy by forcing the Receiver to comply with

    the  NCUA’s administrative claims process, thereby delaying resolution of the claim and causing moremoney, time and resources to be spent defending the Receiver’s objections that are rightfully brought under

    this receivership proceeding.

    8:12-cv-02078-JMC Date Filed 03/28/16 Entry Number 195 Page 8 of 11

  • 8/17/2019 NCUA Motion and Receiver's Response

    28/30

    9

    determination of rights with respect to, the assets of any credit union for which the Board

    has been appointed liquidating agent.”

    First, as discussed supra, the NCUA was ordered to submit to the Receiver’s claims

     process. Second, the NCUA has submitted to and participated in the Receiver’s claims

     process for the past 17 months. Finally, it is the Ohio court that had jurisdiction over the

     NCUA’s “action seeking a determination of rights with respect to” the AB&C claim. As

    such, the Ohio court held that the NCUA had a right to submit a claim to the Receiver for

    $100,000. This Court is not determining if such right exists, the Ohio court has already

    made that determination. In accordance with the receivership process and the Ohio Order,

    this Court is only deciding how much money the NCUA may be entitled to receive and,

    therefore, is not in contravention of 12 U.S.C. Section 1787(b)(13)(D).4 

    D. 

    The NCUA’s Rights are Not Superior to the Receiver’s Rights 

    The NCUA’s interpretation and arguments of 12 U.S.C. Section 1787(b)(16)(c) are

    not infallible. The NCUA admits that the statute only contemplates bankruptcy

     proceedings by providing that “[t]he rights of the Board under this paragraph shall superior

    to any rights of a trustee or any other party (other than any party which is a Federal

    Agency) under Title 11.” 12 12 U.S.C. Section 1787(b)(16)(c); [ECF No. 183-1 at p. 8].

    However, it contends that the same principal underlying the statute’s intent applies— that

    the NCUA’s claim is superior to that of the Receiver and any other investor.

    We are not in a proceeding under Title 11, therefore, on its face, the superiority

    clause does not apply to the present situation. Further, in interpreting the plain language of

    a statute, a court “give[s] the words of a statute their ordinary, contemporary, common

    4 In fact, the Ohio court recognized that the NCUA might not recover any money from the Receiver.In the Ohio Order, the court stated “[i]n the event the AB&C Claim is paid , any such proceeds would be placed under the control of this Honorable Court and a Trustee appointed to hold such asset until the claimsin this case have been resolved.” (Ex. A, at p. 2.) (emphasis added).

    8:12-cv-02078-JMC Date Filed 03/28/16 Entry Number 195 Page 9 of 11

  • 8/17/2019 NCUA Motion and Receiver's Response

    29/30

    10

    meaning, absent an indication Congress intended them to bear some different import.”

    Williams v. Taylor, 529 U.S. 420, 431 (2000). If Congress intended the superiority of the

     NCUA claim to apply outside the context of a bankruptcy proceeding, it had the ability and

    the know-how to do so. The NCUA should not write in favorable words or glean favorable

    intent from Congress — when on its face, Congress only meant for this superiority statute to

    apply in the bankruptcy context.

    Additionally, in the Letter,5 the NCUA maintains that it is entitled to priority over

    the defrauded investors because it is a creditor of the Receiver. In receivership

     proceedings, courts have “the authority to approve any [distribution]  plan provided it is

    ‘fair and reasonable.’” Byers, 637 F. Supp. 2d at 174 – 75. One scholar explained

    [a] receiver’s distribution plan may, therefore, distinguish between differenttypes of claimants and provide for different treatment for different classesof investors. For example, a distribution plan may seek to limit distributionsto those claimants who suffered actual out-of-pocket losses. Or, differingtreatment may be sought for distributions to investors in contrast to tradecreditors.

    Phelps,  supra, at 572. Our sister court agreed with this reasoning and approved a higher

     priority for defrauded investors over non-investor general creditors. U.S. Commodity

     Futures Trading Comm’n v. Capitalstreet Fin., LLC , No. 3:09cv387-RJC-DCK, 2010 WL

    2572349, at *2 (W.D.N.C. June 18, 2010). In the Plan in this case, creditors and investors

    are given equal priority. [Plan, ECF No. 176.]

    Accordingly, the Receiver requests that the NCUA simply receive distributions on

     par with the defrauded investors and not be given priority.

    5  The NCUA’s position is a moving target. Initially, in the Supplement from 2014, the NCUAargued that it has a right to avoid the transfer under 12 U.S.C. Section 1787(b)(16). In the February 2016letter, it argued that it was a creditor of the Receiver and entitled to a higher priority over the defraudedinvestors. Now, in the instant motion, the NCUA argues, amongst other things, that the Receiver must submitto the NCUA’s administrative claims process.

    8:12-cv-02078-JMC Date Filed 03/28/16 Entry Number 195 Page 10 of 11

  • 8/17/2019 NCUA Motion and Receiver's Response

    30/30

    IV.  CONCLUSION 

    Based on the foregoing arguments, the Receiver respectfully requests the this Court

    deny the NCUA’s motion, overrule any of NCUA’s objections, and find that NCUA  is

    only entitled to receive distributions on par with the defrauded investors.

    Respectfully submitted,

    THE TOLLI SON LAW F IRM, P.A.

    /s/L. Walter Tollison, IIIL. Walter Tollison, III

    Federal Bar No. [email protected] Vardry Street, Suite 203Greenville, South Carolina 29601Phone: (864) 451-7038Fax: (864) 451-7591Attor ney for the Receiver

    March 28, 2016Greenville, South Carolina

    8:12-cv-02078-JMC Date Filed 03/28/16 Entry Number 195 Page 11 of 11