Case Type:
Case Status:
No. 17-8079 (10th Circuit, Nov 06,2018) Not Published
Tenth Circuit affirmed summary judgment entered by district court (D. Wyo.) against plaintiff on claims for rescission, restitution, fraudulent transfer, and breach of contract. Plaintiff waived review of district court's estoppel ruling by failing to raise arguments in briefing. Because estoppel ruling was basis for summary judgment, 10th Circuit did not reach alternate merits analysis by District Court, or plaintiff's arguments regarding them. Court found no error in District Court's finding that Patricia had not defaulted on loan maturing in 2040.
Procedural context:
District Court (D. Wyo.) entered summary judgment in favor of defendant. Defendant appealed to 10th Cir.
In 2006, Lane and his then-wife Vikki began divorce proceedings. In March 2009, a California divorce court ordered Lane to pay Vikki a $250k settlement and $6k per month in child support. In November 2009, Lane's sister Patricia helped Lane create DFWU LLC. On May 3, 2010, Lane directed transfer of substantially all of Lane's pension assets into DFWU's account. In May 2010, the divorce court entered an order for a lien in Lane's pension assets for $151k for past-due child support. Two days later, Lane's brother transferred all but $1 from Lane's pension assets to DFWU. At some point, DFWU and Patricia created a loan agreement. The agreement authorized Patricia to borrow up to $5 million from DFWU and her sole obligation was to pay the loan in full on the maturity date in 2040. Patricia signed the loan agreement in three capacities, as borrower, manager of DFWU, and manager of another entity tied to Lane's retirement assets (Windriver) which guaranteed and secured the loan. In April 2011, Lane filed chapter 7 bankruptcy and obtained discharge in August 2011. Between August and October 2012, DFWU transferred over $2 million to Patricia pursuant to the loan agreement. In December 2012, bankruptcy trustee filed adversary proceeding against Patricia, DFWU, the Pension, and Lane's mother to obtain funds transferred to them. In early 2013, defendants settled with the trustee by agreeing to turn over virtually all of Lane's assets possessed by DFWU, the other trusts, and Windriver. Lane objected to the turnover agreement, and then negotiated an agreement with the trustee whereby up to $2.5 million in the pension and other property would be excluded from the bankruptcy estate. Lane expected trustee to deliver $2.5 million from the bankruptcy estate, but the trustee argued that the $2 million loan from DFWU to Patricia was part of the consideration. Following evidentiary proceedings, the bankruptcy court agreed with the trustee. In 2017, Lane pled guilty to falsification of records in a bankruptcy proceeding and was sentenced to 18 months in prison. Lane then filed a complaint in Arizona state court against Patricia, DFWU, his brother, and other parties. Defendants removed the case to U.S. District Court in Wyoming. Lane alleged that Patricia had loaned herself funds from DFWU through self-dealing and breach of fiduciary duty.
Tymkovich, McKay, Matheson

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