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20437084v.4
IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
EDGEFIELD HOLDINGS, LLC, )) CIVIL ACTION
PLAINTIFF, )) NO. 1:15-CV-02481-WSD
vs. ))
ANNETTE MASON, individually and as )trustee, JAMIE MASON HAMIL, )K. W. MASON COMPANY, INC., )LONE PINE, INC., MASON CAPITAL, )LLC, and THE MASON FAMILY )TRUST, )
)DEFENDANTS. )
___________________________________ )FIRST AMENDED COMPLAINT FOR
AVOIDANCE OF FRAUDULENT TRANSFERS
Plaintiff Edgefield Holdings, LLC (Plaintiff), by its attorneys, asserts this
First Amended Complaint against Defendants Annette Mason, individually and as
trustee (Annette), Jamie Mason Hamil (Jamie), K. W. Mason Company, Inc.
(as trustee for The Mason Family Trust) (K. W. Mason), Lone Pine, Inc. (Lone
Pine), Mason Capital, LLC (Mason Capital), and The Mason Family Trust
(Trust) (collectively, Defendants), and alleges as follows:
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220437084v.4
NATURE OF ACTION
1. Plaintiff bring this action, pursuant to the Uniform Fraudulent
Transfers Act, as enacted in Georgia in O.C.G.A. 18-2-70 et seq. (the UFTA),
and the common law of the State of Georgia, for the recovery of approximately
$137 million in securities, cash, corporate interests, and real estate holdings
fraudulently transferred from judgment debtor Wayne H. Mason (Wayne) to (a)
his wife Annette, (b) his daughter Jamie, (c) Lone Pine (an insider of Wayne who
owns 100% of Lone Pine), (d) Mason Capital (an insider of Wayne, who is a
member of Mason Capital), and (e) K.W. Mason, as trustee, and Trust (an insider
of Wayne benefitting Waynes family).
2. Beginning in 2007 and until August 2009, Wayne transferred to
accounts held by Annette and Jamie at Merrill Lynch, Pierce, Fenner & Smith,
Incorporated (Merrill Lynch): (1) over 1.7 million in shares of securities (the
Securities), which were originally valued at approximately $19.3 million; and
(2) approximately $2.9 million in cash (the Cash) (collectively, the
Cash/Securities Transfers). All told, these Cash/Securities Transfers, at the time
of receipt by Annette and Jamie, totaled approximately $22 million.
3. Additionally, beginning in 2005 and through 2008, Wayne transferred
the following real estate-related assets (the Real Estate Assets): (a) his 75% of
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his interests in the Beltline Properties (as defined infra) to Mason Capital, resulting
in the ultimate transfer of approximately $37,800,000 in cash proceeds, (b) his
20.639233% interests in Madison Ventures, Ltd. (Madison Ventures) and its real
estate holdings to KW Mason and Trust, resulting in the ultimate transfer of real
property assets valued at approximately $11,600,000, and (c) certain real estate
holdings with an aggregate value of approximately $65,000,000 to Mason Capital
and Lone Pine (collectively, the Real Estate Transfers; together with the
Cash/Securities Transfers, the Transfers). All told, Wayne transferred over $100
million in Real Estate Transfers and approximately $137 million in total Transfers
to Defendants.
4. Wayne made the Transfers with actual intent to hinder, delay, or
defraud his present and future creditors, such as Plaintiff. More specifically,
Wayne made the Transfers even though: (1) he reported the Cash, the Securities,
and the Real Estate Assets to his lendersincluding the predecessors-in-interest to
Plaintiffto support them lending hundreds of millions of dollars to him and his
various business entities; (2) his lenders relied upon his personal guaranty, his
alleged assets, and alleged net worth in making these loans (almost all of which he
guaranteed); and (3) he made such Transfers during the beginning of and
throughout the Great Recession, at a time when all assets (including the real estate
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420437084v.4
projects that were funded by the loans he personally guaranteed) were decreasing
rapidly in value.
5. Additionally, Wayne made the Transfers without receiving fair
consideration (or any consideration, for that matter) at a time when Wayne was
insolvent or was thereby rendered insolvent. As a result, Plaintiff is entitled to
recover the Transfers, as well as post-judgment interest (as applicable) and its
reasonable attorneys fees, pursuant to the UFTA, as well as the common law of
the State of Georgia.
6. Plaintiff, as the successor in interest to FDIC and pursuant to the
October 2014 Judgment and the counts described below, seeks to recover the
Transfers as follows: (a) statutory fraudulent transfer (actual intent) [Counts II,
VII, XII, and XVII], (b) statutory fraudulent transfer (insufficient remaining assets)
[Counts III, VIII, XIII, and XVIII], (c) statutory fraudulent transfer (insolvency)
[Counts IV, IX, XIV, and XIX], (d) statutory fraudulent transfer (insider) [Counts
V, X, XV, and XX], (e) common law fraudulent transfer (action at law) [Count
XXII], and (f) common law fraudulent transfer (action in equity) [Count XXIV].
7. Plaintiff, pursuant to the June 2014 Judgment and the counts
described below, seeks to recover the Transfers as follows: (a) statutory fraudulent
transfer (actual intent) [Counts I, VI, XI, and XVI], (b) common law fraudulent
Case 1:15-cv-02481-WSD Document 19 Filed 07/17/15 Page 4 of 96
520437084v.4
transfer (action at law) [Count XXI], and (c) common law fraudulent transfer
(action in equity) [Count XXIII].
THE PARTIES
8. Plaintiff is a Delaware limited liability company. Plaintiffs sole
member is Rialto Capital Advisors, LLC, a Delaware limited liability company
whose sole member is Rialto Capital Management LLC. Rialto Capital
Management, LLC is a Delaware limited liability company whose sole member is
Rialto Holdings, LLC. Rialto Holdings, LLC is a Delaware limited liability
company whose sole member is Lennar Corporation, a Delaware corporation with
its principal place of business in Miami, Florida.
9. Plaintiff is a citizen of the States of Delaware and Florida for purposes
of establishing diversity jurisdiction in accordance with 28 U.S.C. 1332.
10. Annette is an individual whose domicile is located at 2096 Oak Road,
Snellville, Georgia 30078.
11. At all times relevant hereto, Annette was the wife of Wayne and, thus,
an insider with respect to Wayne.
12. Pursuant to 28 U.S.C. 1348, Annette is a citizen of the State of
Georgia for purposes of establishing diversity jurisdiction in accordance with 28
U.S.C. 1332.
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620437084v.4
13. Jamie is an individual whose domicile is located at 1405 Carrington
Court, Lawrenceville, Georgia 30044.
14. At all times relevant hereto, Jamie was the daughter of Wayne and,
thus, an insider with respect to Wayne.
15. Pursuant to 28 U.S.C. 1348, Jamie is a citizen of the State of
Georgia for purposes of establishing diversity jurisdiction in accordance with 28
U.S.C. 1332.
16. K.W. Mason is a corporation formed under the laws of the State of
Nevada. On information and belief, the principals of K. W. Mason are as follows:
Joshua C. Miller, President; Keith W. Mason (Keith), Treasurer and Director;
Monte L. Miller, Secretary; and David Hanna, Director. K.W. Mason may be
served with process care of Fennemore Craig, P.C., 300 S. Fourth Street, Suite
1400, Las Vegas, Nevada 89101.
17. Upon information and belief, K.W. Mason is an insider with respect to
Wayne because his son Keith is a principal and officer of K.W. Mason.
18. K.W. Mason is a citizen of the State of Nevada for purposes of
establishing diversity jurisdiction in accordance with 28 U.S.C. 1332.
19. Lone Pine is a Georgia corporation with its principal place of business
located at 1960 Satellite Boulevard, Suite 3000, Duluth, Georgia 30097. Lone
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Pine may be served with process care of Thomas J. Andersen at 1960 Satellite
Boulevard, Suite 4000, Duluth, Georgia 30097.
20. Lone Pine is an insider with respect to Wayne.
21. Lone Pine is a citizen of the State of Georgia for purposes of
establishing diversity jurisdiction in accordance with 28 U.S.C. 1332.
22. Mason Capital is a Georgia limited liability company with its
principal place of business located at 1960 Satellite Boulevard, Suite 3000, Duluth,
Georgia 30097. Mason Capital may be served with process care of Brad Carr
(registered agent) at 1960 Satellite Boulevard, Suite 4000, Duluth, Georgia 30097.
23. Upon information and belief, Wayne is a manager, member or owner
of Mason Capital, and therefore, Mason Capital is an insider with respect to
Wayne.
24. Mason Capital is a citizen of the State of Georgia for purposes of
establishing diversity jurisdiction in accordance with 28 U.S.C. 1332.
25. Trust is a trust formed under the law of the State of Nevada. The
Trust may be served with process care of Fennemore Craig, P.C., 300 S. Fourth
Street, Suite 1400, Las Vegas, Nevada 89101.
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820437084v.4
26. Upon information and belief, the Trust is an insider with respect to
Wayne because the Trust benefits Waynes relatives and his son Keith is a
principal of the trustee for the Trust.
27. Trust is a citizen of the State of Nevada for purposes of establishing
diversity jurisdiction in accordance with 28 U.S.C. 1332.
VENUE AND JURISDICTION
28. This Court has jurisdiction over this action pursuant to 28 U.S.C.
1332(a)(1), as: (a) the matter in controversy exceeds the sum of $75,000,
exclusive of interest and costs; and (b) Plaintiff is diverse in citizenship from each
of Defendants.
29. Venue over all Defendants is proper in this District pursuant to 28
U.S.C. 1391(b)(1) as numerous Defendants are located in counties located within
in this District.
30. Venue over all Defendants is proper in this District pursuant to 28
U.S.C. 1391(b)(2), as a substantial part of the events giving rise to the claims
occurred in this District.
31. Venue over all Defendants is proper in this District pursuant to 28
U.S.C. 1391(b)(2), as a substantial part of the property that is the subject of this
action was and is situated in this District.
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920437084v.4
RELEVANT FACTS
June 2014 Judgment Against Wayne
32. On June 11, 2014, Great Oak Pool I, LLC (Great Oak) obtained a
judgment (the June 2014 Judgment) against Wayne in the State Court of Liberty
County, State of Georgia in the total amount of $1,009,617.12. The June 2014
Judgment was not entered as a result of default based upon non-appearance or
confession of judgment.
33. On or about April 17, 2015, Plaintiff purchased the June 2014
Judgment from Great Oak. In connection with such purchase, Great Oak executed
and delivered to Plaintiff, among other things, an Assignment of Judgment.
34. Great Oak is the successor-in-interest to United Community Bank
with respect to its claims against Wayne.
October 2014 Judgment Against Wayne
35. On October 16, 2014, First Citizens Bank and Trust Company (First
Citizens) obtained a judgment (the October 2014 Judgment) against Wayne in
the State Court of Gwinnett County, State of Georgia in the total amount of
$5,000,000. The October 2014 Judgment was not entered as a result of default
based upon non-appearance or confession of judgment.
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1020437084v.4
36. On or about April 30, 2015, Plaintiff purchased the October 2014
Judgment from First Citizens. In connection with such purchase, First Citizens
executed and delivered to Plaintiff, among other things, an Assignment of
Judgment.
With Respect To The October 2014 Judgment, Plaintiff Is A Successor-in-interest To FDIC
37. On Friday, September 25, 2009, the Georgia Department of Banking
and Finance closed Georgian Bank, and the Federal Deposit Insurance Corporation
(FDIC) was named Receiver.
38. On September 25, 2009, FDIC, as receiver, transferred substantially
all of the loans of Georgian Bank to First Citizens.
39. As a result of and in connection with such transfer, FDIC transferred a
guaranty made by Wayne in favor of Georgian Bank to First Citizens. Wayne
made such guaranty in favor of First Citizens in connection with loan facilities
made by Georgian Bank to, inter alia, Parkway Associates, LLC, St. Andrews
Partners, LLC, MV Capital, LLC, Chestatee Partners, LLC, and Madison Ventures.
40. As a result of the assignment of the October 2014 Judgment by First
Citizens to Plaintiff, Plaintiff is a successor-in-interest to FDIC.
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1120437084v.4
41. Pursuant to 12 U.S.C. 1821(d)(14)(B), FDICs right to bring a claim
for, inter alia, fraudulent transfers under the UFTA and Georgia common law,
began to run anew as of September 25, 2009.
42. Pursuant to 12 U.S.C. 1821(d)(14)(A), the deadline to bring a claim
seeking to recover fraudulent transfers is September 25, 2015, which is six years
from September 25, 2009.
43. As a successor-in-interest to FDIC, Plaintiff is entitled to apply the
extended limitations period provided for in 12 U.S.C. 1821(d)(14) with respect to
its efforts to recover on the October 2014 Judgment.
The Judgments Remain Unpaid
44. The June 2014 Judgment and the October 2014 Judgment (together,
the Judgments) remain unsatisfied in whole, and the total amount of
$6,009,617.12 remains unpaid. Enforcement of the Judgments has not been
stayed, nor are the Judgments the subject of any pending appeal.
Waynes Extensive Loan Obligations And Personal Guaranties
45. Wayne, a one-time prominent real estate developer and investor,
personally guaranteed hundreds of millions of dollars in loan obligations to
numerous financial institutions.
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1220437084v.4
46. In connection with his personal guaranties, Wayne reported the
Securities, Cash and Real Estate Assets to the lenders in order to induce those
lenders to loan hundreds of millions of dollars to him and his various business
entities.
47. Waynes various lenders relied upon his personal guaranties, his
alleged assets, including investments in securities included on his personal
financial statements, and his alleged net worth.
48. Notwithstanding his personal guaranties, Wayne set forth on a
purposeful scheme to transfer substantial assets to his family members and related
entities over which Wayne retains control in an effort to conceal and protect those
assets from his legitimate creditors.
Waynes Cash/Securities Transfers To Annette And Jamie
49. Beginning in 2007 and until August 2009, and notwithstanding his
substantial debts to the lenders referenced above, Wayne transferred to Annette
and Jamie the Securities and the Cash. The Cash/Securities Transfers that are the
subject of this action include the following:
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Para.No.
Transfer Date Transferee
TransfereeAccount
No. (-xxxx)Securities/Cash
Transferred1
Value ofSecurities/Cash
on TransferDate
49(a) 12/12/2007 Annette/Trustee -1786 UCBI $7,305,853.1349(b) 3/28/2008 Jamie -2832 CCRT (now ATLC) $80,800.0049(c) 6/23/2008 Annette/Trustee -2954 UCBI $738,838.8049(d) 1/29/2009 Annette/Trustee -6729 BAC $3,497,124.0049(e) 5/4/2009 Annette -6797 BAC $5,771,280.0049(f) 5/4/2009 Annette -6797 UPS $21,648.0049(g) 5/4/2009 Annette -6797 AEPGX $4,380.6049(h) 5/4/2009 Annette -6797 Cash $224,625.9749(i) 5/5/2009 Annette -6797 Cash $2,660,000.0049(j) 5/6/2009 Annette -6797 BAC $549,000.0049(k) 5/6/2009 Annette -6797 Cash $153.6649(l) 6/25/2009 Annette -6797 BAC $351,678.6049(m) 6/25/2009 Annette -6797 Cash $8,952.1549(n) 8/5/2009 Annette -6797 BAC $970,261.74
TOTAL $22,184,596.65
50. Based on the foregoing, Wayne made each and every one of the
Cash/Securities Transfers between December 12, 2007 and August 5, 2009, as
follows: (i) transfer of Securities to Annette (as Trustee) on December 12, 2007;
(ii) transfer of Securities to Jamie on March 28, 2008; (iii) transfer of Securities to
Annette (as Trustee) on June 23, 2008; (iv) transfer of Securities to Annette (as
Trustee) on January 29, 2009; (v) multiple transfers of Securities and Cash to
1 Each publicly-traded security is listed by its abbreviation on the New York StockExchange.
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Annette (individually) on May 4, 2009; (vi) transfer of Cash to Annette
(individually) on May 5, 2009; (vii) transfers of Cash and Securities to Annette
(individually) on May 6, 2009; (vii) transfers of Cash and Securities to Annette
(individually) on June 25, 2009; and (ix) transfer of Securities to Annette
(individually) on August 5, 2009.
51. Wayne transferred the Securities and Cash from accounts held in his
name at Merrill Lynch into accounts held in Annettes and Jamies names at
Merrill Lynch.
52. Following its acquisition of the Judgments in April 2015, Plaintiff
discovered the Cash/Securities Transfers in the course of its investigation of
Waynes assets. On information and belief, neither Wayne nor any of Defendants
disclosed the Cash/Securities Transfers to any predecessors of Plaintiff or any of
their agents or representatives.
Waynes Real Estate Transfers to the Trust
53. In or about August 2007, following his realization of an impending
real estate crisis that would become the Great Recession, and in anticipation and
preparation for the various loan defaults that would ensue, Wayne formed Trust.
Waynes son Keith is a principal of Trust.
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1520437084v.4
54. Following Trusts formation, no earlier than August 10, 2007, and no
later than December 31, 2007, Wayne transferred approximately 20.639233% of
his ownership interests in Madison Ventures to Trust (the Trust Transfers).
55. Madison Ventures is a Georgia corporation with its principal place of
business in the State of Georgia. Wayne is the CEO and CFO of Madison
Ventures.
56. The value as of 2007 of this interest in Madison Ventures, based upon
Waynes own personal financial statements used by Wayne to induce lenders to
extend credit to Wayne and his entities, was approximately $11,600,000.
57. On account of Waynes transfer to Trust, for which transfer Wayne
received no value (let alone reasonably equivalent value), Trust received a value of
approximately $11,600,000funds that could and should have been used to repay
Waynes substantial creditors.
58. Following its acquisition of the Judgments in April 2015, Plaintiff
discovered these specific Real Estate Transfers in the course of its investigation of
Waynes assets. On information and belief, neither Wayne nor any of Defendants
disclosed these Real Estate Transfers to any predecessors of Plaintiff or any of
their agents or representatives.
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1620437084v.4
Waynes Real Estate Transfers to Mason Capital
59. On or about August 14, 2007, following his realization of an
impending real estate crisis that would become the Great Recession, and in
anticipation and preparation for the various loan defaults that would ensue, Wayne
formed Mason Capital.
60. Upon information and belief, Wayne continues to own or control, or
through family members or related entities owns or controls, one hundred percent
(100%) of the ownership interests in Mason Capital.
61. Following such formation on or about August 14, 2007, and prior to
February 1, 2008, Wayne transferred real estate holdings and other assets to Mason
Capital that he valued at approximately $70,000,000.
62. More specifically, following the formation of Mason Capital and in
addition to the transfers involving the Beltline Project described below, Wayne
effectuated at least the following transfers to Mason Capital:
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1720437084v.4
Para.No.
Transfer Date
Property Transferred(as described by Waynein his and/or MasonCapitals financialstatements)2
MasonCapitalsPurportedInterest
Name of Entity HoldingProperty (if applicable)
62(a) Between 8/14/07and 2/1/08
Old Norcross and CruseRoad
100% Unknown or held in nameof Mason Capital
62(b) Between 8/14/07and 2/1/08
Hwy 120 and SugarloafCVS ground lease, whichincluded a CVS groundlease and adjoining 1.5acre site in GwinnettCounty, Georgia
100% Unknown or held in nameof Mason Capital
62(c) Between 8/14/07and 2/1/08
13 lots at Harbour Oaks,Gwinnett County,Georgia
100% Unknown or held in nameof Mason Capital
62(d) Between 8/14/07and 2/1/08
1.38 acres at Gravit Road,Gwinnett County,Georgia
100% Unknown or held in nameof Mason Capital
62(e) Between 8/14/07and 2/1/08
350 acres in Braselton,Jackson County, Georgia
100% Unknown or held in nameof Mason Capital
62(f) Between 8/14/07and 2/1/08
45 acres in the SurreyFarms subdivision inGwinnett County,Georgia
100% Unknown or held in nameof Mason Capital
2 Plaintiff has described these entities and properties transferred by Wayne to MasonCapital based on personal financial statements submitted by Wayne to his lenders. Uponobtaining additional information as to the exact names and addresses (as well as the specificdates of transfers) of the properties transferred by Wayne to Mason Capital, Plaintiff willsupplement or amend its Complaint.
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1820437084v.4
Para.No.
Transfer Date
Property Transferred(as described by Waynein his and/or MasonCapitals financialstatements)2
MasonCapitalsPurportedInterest
Name of Entity HoldingProperty (if applicable)
62(g) Between 8/14/07and 2/1/08
2470 Cheshire Bridge, 4.9acres in Fulton County,Georgia
50% 2470 Cheshire BridgePartners, LLC (274 W.Wesley Rd., Atlanta, GA30305)
62(h) Between 8/14/07and 2/1/08
509 acres in Commerce,Jackson County, Georgia
75% Commerce LandHoldings, LLC (2771Lawrenceville Hwy, Suite210, Decatur, GA, 30033)
62(i) Between 8/14/07and 2/1/08
68 acres in Commerce,Jackson County, Georgia
50% Commerce LandHoldings II, LLC (2771Lawrenceville Hwy, Suite210, Decatur, GA, 30033)
62(j) Between 8/14/07and 2/1/08
Office building at 1505Lakes Parkway, GwinnettCounty, Georgia)
50% Lakes Office, LLC (1505Lakes Parkway, Suite140, Lawrenceville, GA,30043)
62(k) Between 8/14/07and 2/1/08
Out parcel on PleasantHill Road in GwinnettCounty, Georgia thatwas/is leased to PandaExpress
100% Metro Land Investors,LLC (960 Satellite Blvd.,Suite 3000, Duluth, GA30097)
62(l) Between 8/14/07and 2/1/08
70,000 sq. ft. warehousein Jackson County,Georgia located at 185Broadway Ave.,Braselton, Georgia 30517
80% MKB Properties, LLC(3400 Rivergreen Ct.,Suite 500, Duluth, GA,30096)
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Para.No.
Transfer Date
Property Transferred(as described by Waynein his and/or MasonCapitals financialstatements)2
MasonCapitalsPurportedInterest
Name of Entity HoldingProperty (if applicable)
62(m) Between 8/14/07and 2/1/08
MMH Ventures(retail strip center inGwinnett County,Georgia)
25% MMH Ventures, LLC(1702 Abbey Ct.,Alpharetta, GA, 30004)
62(n) Between 8/14/07and 2/1/08
Peachtree Hills Holdings(12,000 sq. ft. retail centerin Fulton County,Georgia)
50% Peachtree Hills Holdings,LLC (2771 LawrencevilleHwy., Suite 210, Decatur,GA, 30033)
62(o) Between 8/14/07and 2/1/08
Solid Gold(former Gold Club site inFulton County, Georgialocated at 2416 PiedmontRoad NE, Atlanta,Georgia 30324)
50% Solid Gold, LLC (1960Satellite Blvd., Suite3000, Duluth, GA,30097)
62(p) Between 8/14/07and 2/1/08
SPG Adairsville(117 acres in BartowCounty, Georgia)
50% SPG Adairsville, LLC(1201 Peachtree St., NE,Suite 1001, Atlanta, GA30361)
62(q) Between 8/14/07and 2/1/08
Distribution warehouse inJackson County, Georgia,located at 995 BroadwayAve.,Braselton, Georgia 30517,that was/is leased toHome Depot.
50% SPG Braselton One, LLC(2870 Peachtree Rd,#721,Atlanta, GA, 30305)
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2020437084v.4
Para.No.
Transfer Date
Property Transferred(as described by Waynein his and/or MasonCapitals financialstatements)2
MasonCapitalsPurportedInterest
Name of Entity HoldingProperty (if applicable)
62(r) Between 8/14/07and 2/1/08
57,600 sq. ft. building and33 acres of land inChatham County, Georgia
50% SPG Northport Two, LLC(1960 Satellite Blvd.,Suite 3000, Duluth, GA,30097)
62(s) Between 8/14/07and 2/1/08
310 acres in ChathamCounty, Georgia
50% SPG Oak Grove Land,LLC (1960 SatelliteBlvd., Suite 3000, Duluth,GA, 30097)
62(t) Between 8/14/07and 2/1/08
8 acres in GwinnettCounty
50% SPG Pinnacle, LLC (2870Peachtree Rd., #721,Atlanta, GA, 30305)
62(u) Between 8/14/07and 2/1/08
60 acres in ChathamCounty owned by SPGWestport, LLC; 329,000sq. ft. building inChatham County ownedby SPG Westport II, LLC
50% (ineachentity)
SPG Westport, LLCSPG Westport Two, LLC1201 Peachtree St., NE,Suite 1001Atlanta, GA 30361
62(v) Between 8/14/07and 2/1/08
Unknown acreage atSatellite Blvd.
unknown Unknown or held in thename of Mason Capital
62(w) Between 8/14/07and 2/1/08
23 lots and one out parcelin Gwinnett County,Georgia known asSugarloaf Five Forks.
25% Sugarloaf/Five ForksPartners, LLC (1960Satellite Blvd., Suite3000, Duluth, GA,30097)
62(x) Between 8/14/07and 2/1/08
Membership interests inBlack Banks ResidencesLLC
unknown Black Banks RiverResidences, LLC (P.O.Box 190Brunswick, GA 31520)
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2120437084v.4
Para.No.
Transfer Date
Property Transferred(as described by Waynein his and/or MasonCapitals financialstatements)2
MasonCapitalsPurportedInterest
Name of Entity HoldingProperty (if applicable)
62(y) Between 8/14/07and 2/1/08
24 lots in GwinnettCounty, Georgia
33.33% Baxley Ridge, LLC (4154Silver Peak Pkwy, SuiteD, Suwanee, GA,30024);;
62(z) Between 8/14/07and 2/1/08
4 lots in GwinnettCounty, Georgia;
33.33% Baxley Ridge Builders,LLC (P.O. Box 969,Suwanee, GA 30024)
62(aa) Between 8/14/07and 2/1/08
5 lots and a house inGwinnett County,Georgia
33.33% Baxley RidgeInvestments, LLC (P.O.Box 969, Suwanee, GA30024)
63. For each Real Estate Transfer from Wayne to Mason Capital, Plaintiff
cannot discern the exact transfer date from the documents in its possession.
However, based on the records available to Plaintiff, all of these Real Estate
Transfers occurred between August 14, 2007 and February 1, 2008. Therefore, at
the earliest, each Real Estate Transfer occurred on August 14, 2007 for purposes of
determining the applicable statute of limitation period.
Wayne Transfers His Interests In The Beltline Project to Mason Capital64. In addition to the Real Estate Transfers to Mason Capital described
above, Wayne also transferred his substantial interests in proceeds of the Beltline
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2220437084v.4
Project to Mason Capital for no consideration (collectively with the Real Estate
Transfers to Mason Capital itemized in Paragraph 62, the Mason Capital
Transfers).
65. In or about 2004, Wayne formed a series of limited liability
companies (LLCs and each an LLC) under the laws of the State of Georgia,
with the intention of acquiring numerous tracts of land as part of an intended
development of a twenty-two (22) mile loop around Atlantas core (the Beltline
Project).
66. The entities (collectively, the Beltline Entities) formed by Wayne to
acquire said properties included, without limitation, each of the following: Ansley
North Beltline, LLC; Ansley South Beltline, LLC; Piedmont Beltline, LLC; North
Avenue Beltline, LLC; Corridor Beltline, LLC and Corridor Edgewood, LLC. On
information and belief, Wayne originally held one hundred percent (100%) of the
membership interests in each of Beltline Entities.
67. In or about 2004, Wayne, through the Beltline Entities, purchased
numerous tracts of land (collectively, the Beltline Properties) for approximately
$25,000,000 as part of the Beltline Project.
68. To induce lenders to issue loans to him and/or Beltline Entities,
Wayne disclosed to his lenders (and his business partners) that the ownership
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interests in the Beltline Properties and/or the Beltline Entities were his personal
assets, and represented that such assets would be available to support his loan
obligations.
69. In or about 2005, Wayne transferred to Keith, for less than reasonably
equivalent value, a twenty five percent (25%) ownership interest in Beltline
Entities and/or Beltline Properties.
70. In 2006, Hakim Hilliard, Waynes zoning attorney, estimated that
Beltline Properties were worth as much as $140,000,000.
71. Following the formation of Mason Capital in or about August 2007,
and prior to February 1, 2008, Wayne transferred to Mason Capital his 75%
ownership interest in Beltline Entities and/or the Beltline Properties.
72. In or about October 2007, Wayne and Keith sold Beltline Entities
and/or Beltline Properties to an entity jointly owned by, among others, the City of
Atlanta.
73. In consideration of its purchase of Beltline Entities and/or Beltline
Properties, the purchaser provided to the Beltline Entities, and thus, to Wayne (or
Mason Capital, as fraudulent transferee) as a seventy-five percent (75%) owner
and to Keith as a twenty-five percent (25%) owner (and likely fraudulent
transferee), an initial payment of $21,000,000 and a promissory note in the amount
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of forty-five million dollars ($45,000,000) (the Beltline Note). On information
and belief, the terms of the Beltline Note provided for a one-year maturity date and
an annual interest rate of twelve percent (12%).
74. Between October 2007 and the maturity date of the Beltline Note in
approximately October 2008, Wayne, Keith, and/or Beltline Entities received
interest payments on the note. The interest payments over that one-year period
totaled approximately five million four hundred thousand dollars ($5,400,000).
75. Mason Capital, as a fraudulent transferee of Waynes 75% ownership
interest in Beltline Entities and/or the Beltline Properties, received as much as
$4,050,000.
76. On October 31, 2008, upon the maturity of the Beltline Note, such
purchaser paid to Wayne, Keith, and/or Beltline Entities a final payment of
$45,000,000. Mason Capital, as a fraudulent transferee of Waynes 75%
ownership interest in Beltline Properties, received approximately $33,750,000.
77. All told, on account of Waynes transfers to Mason Capital, for which
transfers Wayne received no value (let alone reasonably equivalent value), Mason
Capital received at least $70,000,000, and as much as $98,000,000, of assets and
fundsassets and funds that could and should have been used to repay Waynes
substantial creditors.
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78. Following its acquisition of the Judgments in April 2015, Plaintiff
discovered these specific Real Estate Transfers involving Mason Capital in the
course of its investigation of Waynes assets. On information and belief, neither
Wayne nor any of Defendants disclosed these Real Estate Transfers to any
predecessors of Plaintiff or any of their agents or representatives.
Waynes Real Estate Transfers to Lone Pine
79. Following his realization of an impending real estate crisis that would
become the Great Recession, and in anticipation and preparation for the various
loan defaults that would ensue, Wayne began transferring substantial real estate-
related assets to Lone Pine.
80. Upon information and belief, Wayne continues to own or control, or
through family members of related entities owns or controls, one hundred percent
(100%) of the ownership interests in Lone Pine.
81. More specifically, Wayne effectuated the following transfers from
himself or related entities to Lone Pine (collectively, the Lone Pine Transfers):
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Para.No.
TransferDate
Property Transferred(as described by Waynein his and/or LonePines financialstatements) 3
LonePinesPurportedInterest
Name of EntityHolding Property(if applicable)
81(a) 2/28/07 Palisades West Paces, a46,000 sq. ft. medicalcondominium located inPalisades West Paces,Fulton County, Georgia
100% Unknown or held inname of Lone Pine
81(b) 2/28/07 78 acres at GA 400 &Hwy 306, ForsythCounty, Georgia
33.33% 400 Pilgrim, LLC400 Pilgrim II, LLC(112 N. Main St.,Cumming, GA30040)
81(c) 2/28/07 34 residential lots inGwinnett County,Georgia)
100% Austin Garner, LLC(1960 Satellite Blvd.,Suite 3000, Duluth,GA 30097)
81(d) 2/28/07 Apartment project locatedin Old 4th Ward, FultonCounty, Georgia
33.33% Brisbane II, LLC(1349 W. PeachtreeSt., Suite 1100,Atlanta, GA 30309)
81(e) 2/28/07 97 residential lots inFreemans Crossingsubdivision, GwinnettCounty, Georgia
33.33% Campbell Road, LLC(1960 Satellite Blvd.,Suite 3000, Duluth,GA 30097)
3 Plaintiff has described these entities and properties transferred by Wayne to Lone Pinebased on personal financial statements submitted by Wayne to his lenders. Upon obtainingadditional information as to the exact names and addresses (as well as the specific dates oftransfers) of the properties transferred by Wayne to Lone Pine, Plaintiff will supplement oramend its Complaint.
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Para.No.
TransferDate
Property Transferred(as described by Waynein his and/or LonePines financialstatements) 3
LonePinesPurportedInterest
Name of EntityHolding Property(if applicable)
81(f) 2/28/07 11 single family lots inFulton County, Georgia
100% Lenox-Canterbury II,LLC (1960 SatelliteBlvd., Suite 3000,Duluth, GA 30097)
81(g) 2/28/07 468 residential lots inGwinnett County,Georgia
100% Rockhouse Ventures,LLC (1960 SatelliteBlvd., Suite 3000,Duluth, GA 30097)
81(h) 2/28/07 510 residential lots inDeKalb County, Georgia
100% Stonecrest Atlanta,LLC (1960 SatelliteBlvd., Suite 3000,Duluth, GA 30097)
82. On information and belief and based on the records available to
Plaintiff, each of the Lone Pine Transfers occurred on or around February 28,
2007.
83. On account of Waynes transfers to Lone Pine, for which transfers
Wayne received no value (let alone reasonably equivalent value), Lone Pine
received approximately $22,000,000 in assets and fundsassets and funds that
could and should have been used to repay Waynes substantial creditors.
84. Following its acquisition of the Judgments in April 2015, Plaintiff
discovered these specific Lone Pine Transfers in the course of its investigation of
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Waynes assets. On information and belief, neither Wayne nor any of Defendants
disclosed these Lone Pine Transfers to any predecessors of Plaintiff or any of their
agents or representatives.
Wayne Admits His Fraudulent Scheme to His Partners
85. Wayne bragged about these Transfers when speaking with Ronald
S. Leventhal (Leventhal), a real estate developer and former business partner of
Wayne.
86. Wayne, Leventhal, John Williams and James Wallace (collectively,
the Liberty Members), were the co-members/owners of Liberty Capital, LLC
(Liberty), and co-guarantors with respect to the underlying Liberty loan
obligations that resulted in the October 2014 Judgment acquired by Edgefield.
87. Wayne initially represented to lenders (including Plaintiffs
predecessors-in-interest), as well as the other Liberty Members, that he held
substantial assets to support his various loan obligations, including the loan
obligations owed to Plaintiffs predecessors-in-interest, and that such personal
assets were and would continue to be available to support such loan obligations.
Specifically, Wayne represented that he held substantial personal assets that could
support his loan obligations to various creditors, including the Real Estate Assets
(which included Beltline Entities and/or the Beltline Properties).
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88. In discussions with Leventhal in 2006, Wayne admitted to transferring
ownership or other interests in Beltline Entities and/or the Beltline Properties for
imagery purposes. In other words, Wayne admitted that he transferred interests
in Beltline Entities and/or the Beltline Properties to Keith to protect the proceeds of
such assets from the reach of Waynes creditors.
89. In discussions with Leventhal in 2007, Wayne admitted that: (a) he
was protecting his assets; (b) he used a law firm in Gwinnett County, Georgia
believed to be R. Bradley Carr of Anderson Carr & Tate to form many of
Waynes real estate holding limited liability companies; (c) he used the McKenna
Long & Aldridge law firm (now Dentons) at which Keith is a partner to set up
various trusts; and (d) he was transferring real estate and other assets to these
entities and trusts to keep them from out of the reach of his creditors.
90. Wayne did not inform any of his lenders, including Plaintiffs
predecessors-in-interest, of his asset protection plans and activities.
91. Therefore, and despite his loan obligations, beginning in 2007, Wayne
began transferring substantial personal assets, including the Cash, the Securities,
and the Real Estate Assets, to his family and affiliated entities and trusts in an
intentional effort to shield his personal assets from his various lenders (including
Plaintiffs predecessors-in-interest).
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92. By 2010, Wayne admitted to Leventhal and the other Liberty
Members that, despite his prior disclosure of substantial personal assets, he had
insufficient funds to make contributions on behalf of or for the benefit of Libertys
operations and loan obligations. Wayne admitted that most of his assets, including
Beltline Entities and/or the Beltline Properties (and/or the proceeds therefrom), the
Cash, and the Securities, were transferred to various family members, and
therefore, he would need to ask those family members for access to such assets to
make contributions to Liberty for Libertys operations and loan obligations.
93. Further, Wayne admitted to Leventhal and the other Liberty Members
that he would cease (and in fact did cease) making any payments or contributions
on behalf of Libertys obligations (which he guaranteed) after August 2011. By
that time, Wayne stated that he believed that the statute of limitations would have
expired on any potential fraudulent transfer claims seeking to void his various
Transfers to his family members and affiliated trusts and entities.
COUNT I: Statutory Fraudulent Transfer - Actual Intent(June 2014 Judgment: Cash/Securities Transfers to Annette and Jamie)
94. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 10-15, 32-34, 44-52, and 85-93 of this Complaint as if fully set forth
herein.
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95. Plaintiff, as the successor in interest to Great Oak and United
Community Bank, is entitled to seek collection of the June 2014 Judgment and
assert fraudulent transfer claims in the course of recovering such judgment
pursuant to, inter alia, the UFTA.
96. Wayne made each and every one of the Cash/Securities Transfers
between December 12, 2007 and August 5, 2009.
97. Plaintiff did not discover these Cash/Securities Transfers until after it
acquired the June 2014 Judgment in April 2015 and conducted post-judgment
discovery on third parties.
98. Neither Plaintiff nor its predecessors-in-interest with respect to the
June 2014 Judgment had a reasonable basis to discover the Cash/Securities
Transfers prior to Plaintiffs review of post-judgment discovery.
99. Therefore, pursuant to O.C.G.A. 18-2-79(1), Plaintiffs claim, as the
owner of the June 2014 Judgment, against Jamie and Annette under Count I is
timely asserted.
100. Wayne made the Cash/Securities Transfers after he had incurred his
guaranty obligations to various lenders on hundreds of millions of dollars in loans.
101. Each and every one of the Cash/Securities Transfers was made with
the actual intent to hinder, delay, or defraud Waynes present and future creditors.
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102. Accordingly, the Cash/Securities Transfers are voidable under the
UFTA, and of no effect as to Plaintiff.
103. Jamie and Annette hold the assets that are the subject of the
Cash/Securities Transfers in a constructive trust for the benefit of Plaintiff.
104. Plaintiff is entitled to an Order nullifying and voiding the
Cash/Securities Transfers and declaring that title to and ownership of the assets
that are the subject of the Cash/Securities Transfers remains in Wayne and/or to a
judgment against Annette and Jamie for the value of the assets that are the subject
of the Cash/Securities Transfers or the amount necessary to satisfy Plaintiffs June
2014 Judgment against Wayne, whichever is less.
105. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Cash/Securities
Transfers or on their proceeds.
106. Furthermore, as a result of Annette and Jamies actions in
participating in the Cash/Securities Transfers, Plaintiff has suffered general
damages and is entitled to recover from Annette and Jamie in an amount to be
shown at trial.
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Count II: Statutory Fraudulent Transfer - Actual Intent(October 2014 Judgment: Cash/Securities Transfers to Annette and Jamie)
107. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 10-15, 35-52, and 85-93 of this Complaint as if fully set forth herein.
108. Plaintiff, as the successor in interest to FDIC and First Citizens, is
entitled to seek collection of the October 2014 Judgment and asset fraudulent
transfer claims in the course of recovering such judgment pursuant to, inter alia,
the UFTA.
109. Wayne made each and every one of the Cash/Securities Transfers
between December 12, 2007 and August 5, 2009.
110. Plaintiff did not discover these Cash/Securities Transfers until after it
acquired the June 2014 Judgment in April 2015 and conducted post-judgment
discovery on third parties.
111. Neither Plaintiff nor its predecessors-in-interest with respect to the
June 2014 Judgment had any reasonable basis to discover the Cash/Securities
Transfers prior to Plaintiffs review of post-judgment discovery.
112. Therefore, pursuant to O.C.G.A. 18-2-79(1), Plaintiffs claim, as the
owner of the October 2014 Judgment, against Jamie and Annette under Count I is
timely asserted.
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113. As of September 25, 2009, a fraudulent transfer claim under O.C.G.A.
18-2-74(a)(1) also was timely if the transfers occurred within the prior four year
period starting from September 25, 2005.
114. Wayne made each and every one of the Cash/Securities Transfers
between December 12, 2007 and August 5, 2009, which was after September 25,
2005.
115. As described above, Plaintiff, as the successor to FDIC, is entitled to
apply the extended limitations period provided for in 12 U.S.C. 1821(d)(14),
which requires Plaintiff to pursue its claim before September 25, 2015.
116. As described above and pursuant to 12 U.S.C. 1821(d)(14),
Plaintiffs claim, as the owner of the October 2014 Judgment, against Jamie and
Annette under Count II is timely.
117. Wayne made the Cash/Securities Transfers after he had incurred his
guaranty obligations to various lenders on hundreds of millions of dollars in loans.
118. Each and every one of the Cash/Securities Transfers was made with
the actual intent to hinder, delay, or defraud Waynes present and future creditors.
119. Accordingly, the Cash/Securities Transfers are voidable under the
UFTA, and of no effect as to Plaintiff.
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120. Jamie and Annette hold the assets that are the subject of the
Cash/Securities Transfers in a constructive trust for the benefit of Plaintiff.
121. Plaintiff is entitled to an Order nullifying and voiding the
Cash/Securities Transfers and declaring that title to and ownership of the assets
that are the subject of the Cash/Securities Transfers remains in Wayne and/or to a
judgment against Annette and Jamie for the value of the assets that are the subject
of the Cash/Securities Transfers or the amount necessary to satisfy Plaintiffs
October 2014 Judgment against Wayne, whichever is less.
122. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Cash/Securities
Transfers or on their proceeds.
123. Furthermore, as a result of Annette and Jamies actions in
participating in the Cash/Securities Transfers, Plaintiff has suffered general
damages and is entitled to recover from Annette and Jamie in an amount to be
shown at trial.
COUNT III: Statutory Fraudulent Transfer - Insufficient Remaining Assets(October 2014 Judgment: Cash/Securities Transfers to Annette and Jamie)
124. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 10-15, 35-52, and 85-93 of this Complaint as if fully set forth herein.
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125. Plaintiff, as the successor in interest to FDIC and First Citizens, is
entitled to seek collection of the October 2014 Judgment and assert fraudulent
transfer claims in the course of recovering such judgment pursuant to, inter alia,
the UFTA.
126. As of September 25, 2009, a fraudulent transfer claim under O.C.G.A.
18-2-74(a)(2) was timely if the transfers occurred within the prior four year
period starting from September 25, 2005.
127. Wayne made each and every one of the Cash/Securities Transfers
between December 12, 2007 and August 5, 2009, which was after September 25,
2005.
128. As described above, Plaintiff, as the successor to FDIC, is entitled to
apply the extended limitations period provided for in 12 U.S.C. 1821(d)(14),
which requires Plaintiff to pursue its claim before September 25, 2015.
129. As described above and pursuant to 12 U.S.C. 1821(d)(14),
Plaintiffs claim, as the owner of the October 2014 Judgment, against Jamie and
Annette under Count III is timely.
130. Wayne made the Cash/Securities Transfers after he had incurred his
guaranty obligations to various lenders on hundreds of millions of dollars in loans.
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131. The Cash/Securities Transfers were made without Wayne receiving a
reasonably equivalent value in exchange for the Cash/Securities Transfers.
132. At the time the Cash/Securities Transfers were made, Wayne was
engaged or was about to engage in a business or transaction for which his
remaining assets were unreasonably small in relation to the business or the
transaction.
133. At the time the Cash/Securities Transfers were made, Wayne intended
to incur, or believed or reasonably should have believed that he would incur, debts
beyond his ability to pay them as they became due.
134. Accordingly, the Cash/Securities Transfers are voidable under the
UFTA, and of no effect as to Plaintiff.
135. Annette and Jamie hold the assets that are the subject of the
Cash/Securities Transfers in a constructive trust for the benefit of Plaintiff.
136. Plaintiff is entitled to an Order nullifying and voiding the
Cash/Securities Transfers and declaring that title to and ownership of the assets
that are the subject of the Cash/Securities Transfers remains in Wayne and/or to a
judgment against Annette and Jamie for the value of the assets that are the subject
of the Cash/Securities Transfers or the amount necessary to satisfy Plaintiffs
October 2014 Judgment against Wayne, whichever is less.
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137. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Cash/Securities
Transfers or on their proceeds.
138. Furthermore, as a result of Annette and Jamies actions in
participating in the Cash/Securities Transfers, Plaintiff has suffered general
damages and is entitled to recover from Annette and Jamie in an amount to be
shown at trial.
COUNT IV: Statutory Fraudulent Transfer - Insolvency(October 2014 Judgment: Cash/Securities Transfers to Annette and Jamie)
139. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 10-15, 35-52, and 85-93 of this Complaint as if fully set forth herein.
140. Plaintiff, as the successor in interest to FDIC and First Citizens, is
entitled to seek collection of the October 2014 Judgment and assert fraudulent
transfer claims in the course of recovering such judgment pursuant to, inter alia,
the UFTA.
141. As of September 25, 2009, a fraudulent transfer claim under O.C.G.A.
18-2-75(a) was timely if the transfers occurred within the prior four year period
starting from September 25, 2005.
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142. Wayne made each and every one of the Cash/Securities Transfers
between December 12, 2007 and August 5, 2009, which was after September 25,
2005.
143. As described above, Plaintiff, as the successor to FDIC, is entitled to
apply the extended limitations period provided for in 12 U.S.C. 1821(d)(14),
which requires Plaintiff to pursue its claim before September 25, 2015.
144. As described above and pursuant to 12 U.S.C. 1821(d)(14),
Plaintiffs claim, as the owner of the October 2014 Judgment, against Jamie and
Annette under Count IV is timely.
145. Wayne made the Cash/Securities Transfers after he had incurred his
guaranty obligations to various lenders on hundreds of millions of dollars in loans.
146. Wayne made the Cash/Securities Transfers without receiving a
reasonably equivalent value in exchange.
147. Wayne was insolvent at the time of the Cash/Securities Transfers or
became insolvent as a result of the Cash/Securities Transfers.
148. Accordingly, the Cash/Securities Transfers are voidable under the
UFTA, and of no effect as to Plaintiff.
149. Annette and Jamie hold the assets that are the subject of the
Cash/Securities Transfers in a constructive trust for the benefit of Plaintiff.
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150. Plaintiff is entitled to an Order nullifying and voiding the
Cash/Securities Transfers and declaring that title to and ownership of the assets
that are the subject of the Transfers remains in Wayne and/or to a judgment against
Annette and Jamie for the value of the assets that are the subject of the
Cash/Securities Transfers or the amount necessary to satisfy Plaintiffs October
2014 Judgment against Wayne, whichever is less.
151. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Cash/Securities
Transfers or on their proceeds.
152. Furthermore, as a result of Annette and Jamies actions in
participating in the Cash/Securities Transfers, Plaintiff has suffered general
damages and is entitled to recover from Annette and Jamie in an amount to be
shown at trial.
COUNT V: Statutory Fraudulent Transfer - Made to Insider(October 2014 Judgment: Cash/Securities Transfers to Annette and Jamie)
153. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 10-15, 35-52, and 85-93 of this Complaint as if fully set forth herein.
154. Plaintiff, as the successor in interest to FDIC and First Citizens, is
entitled to seek collection of the October 2014 Judgment and assert fraudulent
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transfer claims in the course of recovering such judgment pursuant to, inter alia,
the UFTA.
155. As of September 25, 2009, a fraudulent transfer claim under O.C.G.A.
18-2-75(b) was timely if the transfers occurred within the prior four year period
starting from September 25, 2005.
156. Wayne made each and every one of the Cash/Securities Transfers
between December 12, 2007 and August 5, 2009, which was after September 25,
2005.
157. As described above, Plaintiff, as the successor to FDIC, is entitled to
apply the extended limitations period provided for in 12 U.S.C. 1821(d)(14),
which requires Plaintiff to pursue its claim before September 25, 2015.
158. As described above and pursuant to 12 U.S.C. 1821(d)(14),
Plaintiffs claim, as the owner of the October 2014 Judgment, against Jamie and
Annette under Count V is timely.
159. Wayne made the Cash/Securities Transfers after he had incurred his
guaranty obligations to various lenders on hundreds of millions of dollars in loans.
160. Wayne made the Cash/Securities Transfers without receiving a
reasonably equivalent value in exchange.
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161. Wayne was insolvent at the time of the Cash/Securities Transfers or
became insolvent as a result of the Cash/Securities Transfers.
162. Each of Annette and Jamie was and are insiders with respect to
Wayne.
163. Annette and Jamie had reasonable cause to believe that Wayne was
insolvent at the time of the Cash/Securities Transfers.
164. Accordingly, the Cash/Securities Transfers are voidable under the
UFTA, and of no effect as to Plaintiff.
165. Annette and Jamie hold the assets that are the subject of the
Cash/Securities Transfers in a constructive trust for the benefit of Plaintiff.
166. Plaintiff is entitled to an Order nullifying and voiding the
Cash/Securities Transfers and declaring that title to and ownership of the assets
that are the subject of the Cash/Securities Transfers remains in Wayne and/or to a
judgment against Annette and Jamie for the value of the assets that are the subject
of the Cash/Securities Transfers or the amount necessary to satisfy Plaintiffs
judgment against Wayne, whichever is less.
167. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Cash/Securities
Transfers or on their proceeds.
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168. Furthermore, as a result of Annette and Jamies actions in
participating in the Cash/Securities Transfers, Plaintiff has suffered general
damages and is entitled to recover from Annette and Jamie in an amount to be
shown at trial.
COUNT VI: Statutory Fraudulent Transfer - Actual Intent(June 2014 Judgment: Real Estate Transfers to Trust)
169. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 16-18, 25-27, 32-34, 44-48, 53-58, and 85-93 of this Complaint as if
fully set forth herein.
170. Plaintiff, as the successor in interest to Great Oak and United
Community Bank, is entitled to seek collection of the June 2014 Judgment and
assert fraudulent transfer claims in the course of recovering such judgment
pursuant to, inter alia, the UFTA.
171. Wayne made each and every one of the Trust Transfers between
August 10, 2007 and December 31, 2007.
172. Plaintiff did not discover these Trust Transfers until after it acquired
the June 2014 Judgment in April 2015 and conducted post-judgment discovery on
third parties.
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173. Neither Plaintiff nor its predecessors-in-interest with respect to the
June 2014 Judgment, had a reasonable basis to discover these Trust Transfers prior
to Plaintiffs review of post-judgment discovery.
174. Therefore, pursuant to O.C.G.A. 18-2-79(1), Plaintiffs claim, as the
owner of the June 2014 Judgment, against Trust under Count VI is timely asserted.
175. Wayne made the Trusts Transfers after he had incurred his guaranty
obligations to various lenders on hundreds of millions of dollars in loans.
176. Each and every one of the Trust Transfers was made with the actual
intent to hinder, delay, or defraud Waynes present and future creditors.
177. Accordingly, the Trust Transfers are voidable under the UFTA, and of
no effect as to Plaintiff.
178. Trust holds the assets that are the subject of the Trust Transfers in a
constructive trust for the benefit of Plaintiff.
179. Plaintiff is entitled to an Order nullifying and voiding the Trust
Transfers and declaring that title to and ownership of the assets that are the subject
of the Trust Transfers remains in Wayne and/or to a judgment against Trust for the
value of the assets that are the subject of the Trust Transfers or the amount
necessary to satisfy Plaintiffs June 2014 Judgment against Wayne, whichever is
less.
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180. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Trust Transfers or on
their proceeds.
181. Furthermore, as a result of Trusts actions in participating in the Trust
Transfers, Plaintiff has suffered general damages and is entitled to recover from
Trust in an amount to be shown at trial.
COUNT VII: Statutory Fraudulent Transfer - Actual Intent(October 2014 Judgment: Real Estate Transfers to Trust)
182. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 16-18, 25-27, 35-48, 53-58, and 85-93 of this Complaint as if fully set
forth herein.
183. Plaintiff, as the successor in interest to FDIC and First Citizens, is
entitled to seek collection of the October 2014 Judgment and assert fraudulent
transfer claims in the course of recovering such judgment pursuant to, inter alia,
the UFTA.
184. The Trust Transfers were made between August 10, 2007 and
December 31, 2007.
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185. Plaintiff did not discover these Trust Transfers until after it acquired
the June 2014 Judgment in April 2015 and conducted post-judgment discovery on
third parties.
186. Neither Plaintiff nor its predecessors-in-interest with respect to the
June 2014 Judgment, had a reasonable basis to discover the Trust Transfers prior to
Plaintiffs review of post-judgment discovery.
187. Therefore, pursuant to O.C.G.A. 18-2-79(1), Plaintiffs claim, as the
owner of the October 2014 Judgment, against Trust under Count VII is timely
asserted.
188. As of September 25, 2009, a fraudulent transfer claim under O.C.G.A.
18-2-74(a)(1) also was timely if the transfers occurred within the prior four year
period starting from September 25, 2005.
189. Wayne made each and every one of the Trust Transfers between
August 10, 2007 and December 31, 2007, which was after September 25, 2005.
190. As described above, Plaintiff, as the successor to FDIC, is entitled to
apply the extended limitations period provided for in 12 U.S.C. 1821(d)(14),
which requires Plaintiff to pursue its claim before September 25, 2015.
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191. As described above and pursuant to 12 U.S.C. 1821(d)(14),
Plaintiffs claim, as the owner of the October 2014 Judgment, against Trust under
Count VII is timely.
192. Wayne made the Trust Transfers after he had incurred his guaranty
obligations to various lenders on hundreds of millions of dollars in loans.
193. Each and every one of the Trust Transfers was made with the actual
intent to hinder, delay, or defraud Waynes present and future creditors.
194. Accordingly, the Trust Transfers are voidable under the UFTA, and of
no effect as to Plaintiff.
195. Trust holds the assets that are the subject of the Trust Transfers in a
constructive trust for the benefit of Plaintiff.
196. Plaintiff is entitled to an Order nullifying and voiding the Trust
Transfers and declaring that title to and ownership of the assets that are the subject
of the Trust Transfers remains in Wayne and/or to a judgment against Trust for the
value of the assets that are the subject of the Trust Transfers or the amount
necessary to satisfy Plaintiffs October 2014 Judgment against Wayne, whichever
is less.
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197. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Trust Transfers or on
their proceeds.
198. Furthermore, as a result of Trusts actions in participating in the Trust
Transfers, Plaintiff has suffered general damages and is entitled to recover from
Trust in an amount to be shown at trial.
COUNT VIII: Statutory Fraudulent Transfer - Insufficient Remaining Assets(October 2014 Judgment: Real Estate Transfers to Trust)
199. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 16-18, 25-27, 35-48, 53-58, and 85-93 of this Complaint as if fully set
forth herein.
200. Plaintiff, as the successor in interest to FDIC and First Citizens, is
entitled to seek collection of the October 2014 Judgment and assert fraudulent
transfer claims in the course of recovering such judgment pursuant to, inter alia,
the UFTA.
201. The Trust Transfers were made between August 10, 2007 and
December 31, 2007.
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202. As of September 25, 2009, a fraudulent transfer claim under O.C.G.A.
18-2-74(a)(2) was timely if the transfers occurred within the prior four year
period starting from September 25, 2005.
203. Wayne made each and every one of the Trust Transfers between
August 10, 2007 and December 31, 2007, which was after September 25, 2005.
204. As described above, Plaintiff, as the successor to FDIC, is entitled to
apply the extended limitations period provided for in 12 U.S.C. 1821(d)(14),
which requires Plaintiff to pursue its claim before September 25, 2015.
205. As described above and pursuant to 12 U.S.C. 1821(d)(14),
Plaintiffs claim, as the owner of the October 2014 Judgment, against Trust under
Count VIII is timely.
206. Wayne made the Trust Transfers after he had incurred his guaranty
obligations to various lenders on hundreds of millions of dollars in loans.
207. The Trust Transfers were made without Wayne receiving a reasonably
equivalent value in exchange for the Trust Transfers.
208. At the time the Trust Transfers were made, Wayne was engaged or
was about to engage in a business or transaction for which his remaining assets
were unreasonably small in relation to the business or the transaction.
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209. At the time the Trust Transfers were made, Wayne intended to incur,
or believed or reasonably should have believed that he would incur, debts beyond
his ability to pay them as they became due.
210. Accordingly, the Trust Transfers are voidable under the UFTA, and of
no effect as to Plaintiff.
211. Trust holds the assets that are the subject of the Trust Transfers in a
constructive trust for the benefit of Plaintiff.
212. Plaintiff is entitled to an Order nullifying and voiding the Trust
Transfers and declaring that title to and ownership of the assets that are the subject
of the Trust Transfers remains in Wayne and/or to a judgment against Trust for the
value of the assets that are the subject of the Trust Transfers or the amount
necessary to satisfy Plaintiffs October 2014 Judgment against Wayne, whichever
is less.
213. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Trust Transfers or on
their proceeds.
214. Furthermore, as a result of Trusts actions in participating in the Trust
Transfers, Plaintiff has suffered general damages and is entitled to recover from
Trust in an amount to be shown at trial.
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COUNT IX: Statutory Fraudulent Transfer - Insolvency(October 2014 Judgment: Real Estate Transfers to Trust)
215. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 16-18, 25-27, 35-48, 53-58, and 85-93 of this Complaint as if fully set
forth herein.
216. Plaintiff, as the successor in interest to FDIC and First Citizens, is
entitled to seek collection of the October 2014 Judgment and assert fraudulent
transfer claims in the course of recovering such judgment pursuant to, inter alia,
the UFTA.
217. The Trust Transfers were made between August 10, 2007 and
December 31, 2007.
218. As of September 25, 2009, a fraudulent transfer claim under O.C.G.A.
18-2-75(a) was timely if the transfers occurred within the prior four year period
starting from September 25, 2005.
219. Wayne made each and every one of the Trust Transfers between
August 10, 2007 and December 31, 2007, which was after September 25, 2005.
220. As described above, Plaintiff, as the successor to FDIC, is entitled to
apply the extended limitations period provided for in 12 U.S.C. 1821(d)(14),
which requires Plaintiff to pursue its claim before September 25, 2015.
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221. As described above and pursuant to 12 U.S.C. 1821(d)(14),
Plaintiffs claim, as the owner of the October 2014 Judgment, against Trust under
Count IX is timely.
222. Wayne made the Trust Transfers after he had incurred his guaranty
obligations to various lenders on hundreds of millions of dollars in loans.
223. Wayne made the Trust Transfers after he had incurred his guaranty
obligations to various lenders on hundreds of millions of dollars in loans.
224. Wayne made the Trust Transfers without receiving a reasonably
equivalent value in exchange.
225. Wayne was insolvent at the time of the Trust Transfers or became
insolvent as a result of the Trust Transfers.
226. Accordingly, the Trust Transfers are voidable under the UFTA, and of
no effect as to Plaintiff.
227. Trust hold the assets that are the subject of the Trust Transfers in a
constructive trust for the benefit of Plaintiff.
228. Plaintiff is entitled to an Order nullifying and voiding the Trust
Transfers and declaring that title to and ownership of the assets that are the subject
of the Trust Transfers remains in Wayne and/or to a judgment against Trust or the
value of the assets that are the subject of the Trust Transfers or the amount
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necessary to satisfy Plaintiffs October 2014 Judgment against Wayne, whichever
is less.
229. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Trust Transfers or on
their proceeds.
230. Furthermore, as a result of Trusts actions in participating in the Trust
Transfers, Plaintiff has suffered general damages and is entitled to recover from
Trust in an amount to be shown at trial.
COUNT X: Statutory Fraudulent Transfer - Made to Insider(October 2014 Judgment: Real Estate Transfers to Trust)
231. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 16-18, 25-27, 35-48, 53-58, and 85-93 of this Complaint as if fully set
forth herein.
232. Plaintiff, as the successor in interest to FDIC and First Citizens, is
entitled to seek collection of the October 2014 Judgment and assert fraudulent
transfer claims in the course of recovering such judgment pursuant to, inter alia,
the UFTA.
233. The Trust Transfers were made between August 10, 2007 and
December 31, 2007.
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234. As of September 25, 2009, a fraudulent transfer claim under O.C.G.A.
18-2-75(b) was timely if the transfers occurred within the prior four year period
starting from September 25, 2005.
235. Wayne made each and every one of the Trust Transfers between
August 10, 2007 and December 31, 2007, which was after September 25, 2005.
236. As described above, Plaintiff, as the successor to FDIC, is entitled to
apply the extended limitations period provided for in 12 U.S.C. 1821(d)(14),
which requires Plaintiff to pursue its claim before September 25, 2015.
237. As described above and pursuant to 12 U.S.C. 1821(d)(14),
Plaintiffs claim, as the owner of the October 2014 Judgment, against Trust under
Count X is timely.
238. Wayne made the Trust Transfers after he had incurred his guaranty
obligations to various lenders on hundreds of millions of dollars in loans.
239. Wayne made the Trust Transfers without receiving a reasonably
equivalent value in exchange.
240. Wayne was insolvent at the time of the Trust Transfers or became
insolvent as a result of the Trust Transfers.
241. Trust was and is an insider with respect to Wayne.
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242. Trust (and its trustee(s)) had reasonable cause to believe that Wayne
was insolvent at the time of the Trust Transfers.
243. Accordingly, the Trust Transfers are voidable under the UFTA, and of
no effect as to Plaintiff.
244. Trust holds the assets that are the subject of the Trust Transfers in a
constructive trust for the benefit of Plaintiff.
245. Plaintiff is entitled to an Order nullifying and voiding the Trust
Transfers and declaring that title to and ownership of the assets that are the subject
of the Trust Transfers remains in Wayne and/or to a judgment against Trust for the
value of the assets that are the subject of the Trust Transfers or the amount
necessary to satisfy Plaintiffs judgment against Wayne, whichever is less.
246. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Trust Transfers or on
their proceeds.
247. Furthermore, as a result of Trusts actions in participating in the Trust
Transfers, Plaintiff has suffered general damages and is entitled to recover from
Trust in an amount to be shown at trial.
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COUNT XI: Statutory Fraudulent Transfer - Actual Intent(June 2014 Judgment: Real Estate Transfers to Mason Capital)
248. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 22-24. 32-34, 44-48, 59-78, and 85-93 of this Complaint as if fully set
forth herein.
249. Plaintiff, as the successor in interest to Great Oak and United
Community Bank, is entitled to seek collection of the June 2014 Judgment and
assert fraudulent transfer claims in the course of recovering such judgment
pursuant to, inter alia, the UFTA.
250. Each and every one of the Mason Capital Transfers was made no
earlier than August 2007.
251. Plaintiff did not discover these Mason Capital Transfers until after it
acquired the June 2014 Judgment in April 2015 and conducted post-judgment
discovery on third parties.
252. Plaintiff nor its predecessors-in-interest with respect to the June 2014
Judgment, had a reasonable basis to discover these Mason Capital Transfers prior
to Plaintiffs review of post-judgment discovery.
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253. Therefore, pursuant to O.C.G.A. 18-2-79(1), Plaintiffs claim, as the
owner of the June 2014 Judgment, against Mason Capital under Count XI are
timely asserted.
254. Wayne made the Mason Capital Transfers after he had incurred his
guaranty obligations to various lenders on hundreds of millions of dollars in loans.
255. Each and every one of the Mason Capital Transfers was made with the
actual intent to hinder, delay, or defraud Waynes present and future creditors.
256. Accordingly, the Mason Capital Transfers are voidable under the
UFTA, and of no effect as to Plaintiff.
257. Mason Capital holds the assets that are the subject of the Mason
Capital Transfers in a constructive trust for the benefit of Plaintiff.
258. Plaintiff is entitled to an Order nullifying and voiding the Mason
Capital Transfers and declaring that title to and ownership of the assets that are the
subject of the Mason Capital Transfers remains in Wayne and/or to a judgment
against Mason Capital for the value of the assets that are the subject of the Mason
Capital Transfers or the amount necessary to satisfy Plaintiffs June 2014
Judgment against Wayne, whichever is less.
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259. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Mason Capital
Transfers or on their proceeds.
260. Furthermore, as a result of Mason Capitals actions in participating in
the Mason Capital Transfers, Plaintiff has suffered general damages and is entitled
to recover from Mason Capital in an amount to be shown at trial.
Count XII: Statutory Fraudulent Transfer - Actual Intent(October 2014 Judgment: Real Estate Transfers to Mason Capital)
261. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 22-24, 35-48, 59-78, and 85-93 of this Complaint as if fully set forth
herein.
262. Plaintiff, as the successor in interest to FDIC and First Citizens, is
entitled to seek collection of the October 2014 Judgment and assert fraudulent
transfer claims in the course of recovering such judgment pursuant to, inter alia,
the UFTA.
263. Each and every one of the Mason Capital Transfers was made no
earlier than August 2007.
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264. Plaintiff did not discover these Mason Capital Transfers until after it
acquired the June 2014 Judgment in April 2015 and conducted post-judgment
discovery on third parties.
265. Neither Plaintiff nor its predecessors-in-interest with respect to the
June 2014 Judgment, had a reasonable basis to discover the Mason Capital
Transfers prior to Plaintiffs review of post-judgment discovery.
266. Therefore, pursuant to O.C.G.A. 18-2-79(1), Plaintiffs claim, as the
owner of the October 2014 Judgment, against Mason Capital under Count XVII is
timely asserted.
267. As of September 25, 2009, a fraudulent transfer claim under O.C.G.A.
18-2-74(a)(1) also was timely if the transfers occurred within the prior four year
period starting from September 25, 2005.
268. Wayne made each and every one of the Mason Capital Transfers on or
after August 2007, which was after September 25, 2005.
269. As described above, Plaintiff, as the successor to FDIC, is entitled to
apply the extended limitations period provided for in 12 U.S.C. 1821(d)(14),
which requires Plaintiff to pursue its claim before September 25, 2015.
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270. As described above and pursuant to 12 U.S.C. 1821(d)(14),
Plaintiffs claim, as the owner of the October 2014 Judgment, against Mason
Capital under Count XII is timely.
271. Wayne made the Mason Capital Transfers after he had incurred his
guaranty obligations to various lenders on hundreds of millions of dollars in loans.
272. Each and every one of the Mason Capital Transfers was made with the
actual intent to hinder, delay, or defraud Waynes present and future creditors.
273. Accordingly, the Mason Capital Transfers are voidable under the
UFTA, and of no effect as to Plaintiff.
274. Mason Capital holds the assets that are the subject of the Mason
Capital Transfers in a constructive trust for the benefit of Plaintiff.
275. Plaintiff is entitled to an Order nullifying and voiding the Mason
Capital Transfers and declaring that title to and ownership of the assets that are the
subject of the Mason Capital Transfers remains in Wayne and/or to a judgment
against Mason Capital for the value of the assets that are the subject of the Mason
Capital Transfers or the amount necessary to satisfy Plaintiffs October 2014
Judgment against Wayne, whichever is less.
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276. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Mason Capital
Transfers or on their proceeds.
277. Furthermore, as a result of Mason Capitals actions in participating in
the Mason Capital Transfers, Plaintiff has suffered general damages and is entitled
to recover from Mason Capital in an amount to be shown at trial.
COUNT XIII: Statutory Fraudulent Transfer - Insufficient Remaining Assets(October 2014 Judgment: Real Estate Transfers to Mason Capital)278. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 22-24, 35-48, 59-78, and 85-93 of this Complaint as if fully set forth
herein.
279. Plaintiff, as the successor in interest to FDIC and First Citizens, is
entitled to seek collection of the October 2014 Judgment and assert fraudulent
transfer claims in the course of recovering such judgment pursuant to, inter alia,
the UFTA.
280. Each and every one of the Mason Capital Transfers was made no
earlier than August 2007.
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281. As of September 25, 2009, a fraudulent transfer claim under O.C.G.A.
18-2-74(a)(2) was timely if the transfers occurred within the prior four year
period starting from September 25, 2005.
282. Wayne made each and every one of the Mason Capital Transfers on or
after August 2007, which was after September 25, 2005.
283. As described above, Plaintiff, as the successor to FDIC, is entitled to
apply the extended limitations period provided for in 12 U.S.C. 1821(d)(14),
which requires Plaintiff to pursue its claim before September 25, 2015.
284. As described above and pursuant to 12 U.S.C. 1821(d)(14),
Plaintiffs claim, as the owner of the October 2014 Judgment, against Mason
Capital under Count XIII is timely.
285. Wayne made the Mason Capital Transfers after he had incurred his
guaranty obligations to various lenders on hundreds of millions of dollars in loans.
286. The Mason Capital Transfers were made without Wayne receiving a
reasonably equivalent value in exchange for the Mason Capital Transfers.
287. At the time the Mason Capital Transfers were made, Wayne was
engaged or was about to engage in a business or transaction for which his
remaining assets were unreasonably small in relation to the business or the
transaction.
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288. At the time the Mason Capital Transfers were made, Wayne intended
to incur, or believed or reasonably should have believed that he would incur, debts
beyond his ability to pay them as they became due.
289. Accordingly, the Mason Capital Transfers are voidable under the
UFTA, and of no effect as to Plaintiff.
290. Mason Capital holds the assets that are the subject of the Mason
Capital Transfers in a constructive trust for the benefit of Plaintiff.
291. Plaintiff is entitled to an Order nullifying and voiding the Mason
Capital Transfers and declaring that title to and ownership of the assets that are the
subject of the Mason Capital Transfers remains in Wayne and/or to a judgment
against Mason Capital for the value of the assets that are the subject of the Mason
Capital Transfers or the amount necessary to satisfy Plaintiffs October 2014
Judgment against Wayne, whichever is less.
292. Plaintiff is further entitled to an Order from the Court that Plaintiff
may levy execution on the assets that are the subject of the Mason Capital
Transfers or on their proceeds.
293. Furthermore, as a result of Mason Capitals actions in participating in
the Mason Capital Transfers, Plaintiff has suffered general damages and is entitled
to recover from Mason Capital in an amount to be shown at trial.
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COUNT XIV: Statutory Fraudulent Transfer - Insolvency(October 2014 Judgment: Real Estate Transfers to Mason Capital)294. Plaintiff repeats and realleges each and every allegation contained in
Paragraphs 22-24, 35-48, 59-78, and 85-93 of this Complaint as if fully set forth
herein.
295. Plaintiff, as the successor in interest to FDIC and First Citizens, is
entitled to seek collection of the October 2014 Judgment and asset fraudulent
transfer claims in the course of recovering such judgment pursuant to, inter alia,
the UFTA.
296. Each and every one of the Mason Capital Transfers was made no
earlier than August 2007.
297. As of September 25, 2009, a fraudulent transfer claim under O.C.G.A.
18-2-75(a) was timely if the transfers occurred within the prior four year period
starting from September 25, 2005.
298. Wayne made each and every one of the Mason Capital Transfers on or
after August 2007, which was after September 25, 2005.
299. As described above, Plaintiff, as the successor to FDIC, is entitled to
apply the extended limitations period provided for in 12 U.S.C. 1821(d)(14),
which requires Plaintiff to pursue its claim before September 25, 2015.
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300. As described above and pursua