Dessert Beauty Inc. v. Platinum Funding Corp.

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1 Dessert Beauty Inc. v. Platinum Funding Corp. 1) Platinum s factoring contract had the following provision: Seller expressly acknowledges that Platinum has agreed thereto in reliance upon Seller's agreement during each Term Semi- Annual to deliver at least the Semi-Annual Base Sales Amount and that Platinum requires an increased Fee in the event a lesser volume of approved Accounts Receivable is agreed upon in any Term Semi- Annual. Consequently, if the aggregate amount of approved Accounts Receivable delivered by the Seller to Platinum during any Term Semi-Annual, whether by reason of Seller's premature termination, reduced level of sales, or otherwise, shall be less than the Semi-Annual Base Sales Amount, then Seller shall pay to Platinum an adjustment fee on account of such Term Semi-Annual 2) The formula in the factoring agreement was: The Formula provides that the adjustment fee shall be equal to: (a) the product of (i) the actual aggregate fees earned by Platinum from the purchase of Accounts Receivable from Seller for the applicable Term Semi-Annual (or then expired portion thereof) (the "Partial Fee") and (ii) a fraction, the numerator of which is the Semi-Annual Base Sales Amount and the denominator of which is the actual aggregate amount of Accounts Receivable theretofore delivered by Seller in such Term Semi-Annual, less (b) the Partial Fee 3) The Seller refused to pay the additional charge, which was in the nature of a minimum fee, claiming that it was a penalty. 4) The court found the provision enforceable. It held that I find that Paragraph Nine is unambiguous and sets out an alternative fee structure in the event that DBI delivers less than the fifteen million dollar Semi-Annual Base Sales Amount of accounts receivable during any six-month period in which the Agreement is in effect. The Paragraph clearly states that Platinum requires a higher "adjustment fee" in the event that DBI delivers less than fifteen million of accounts receivable: 5) The holding is restricted to the particular wording in this contract. 6) The issue of the enforceability of such clauses is important to factors and their

2 counsel.

3 Whelco Industrial, Ltd., Plaintiff v. United States of America, Defendant Case No. 3:05CV7141 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION 503 F. Supp. 2d 906; 2007 U.S. Dist. LEXIS 65073; U.S. Tax Cas. (CCH) P50,678; 100 A.F.T.R.2d (RIA) ) Whitney Electric Corp. was the subject of a federal tax lien. 2) Whelco bought the assets of Whitney under an Asset Purchase Agreement. 3) Whitney was run by Richard Farrar. 4) Whelco was formed by Michael Farrar, Richard s son. It was in essentially the same business as Whitney, from the same premises, and with the same employees. 5) hough a new bank account was opened and other incidents of operation attendant on the change of identity were instituted, the business, in terms of where it was done, what was done, how it was done, why it was done, and who was doing it, remained substantially unaltered. 6) IRS filed tax liens against Whelco. The issue is whether Whelco is a continuation of Whitney. 1) The federal common law, in contrast, applies a different test for determining whether a successor corporation is liable for the obligations of a predecessor. Rather than looking to the continuity of ownership, federal common law looks at continuity of operations: under federal common law, successor liability can be applied if the successor had notice of the potential claim before the acquisition and there is substantial continuity in the operation of the business before and after the sale. This "substantial continuity in the operation of the business" exists if "before and after the sale... no major changes are made in... operation." 2) Thus, under the federal "substantial continuity of operations" test, Whelco can be held liable for the taxes owed by Whitney. 3) Tax collection unimpaired by inconsistent state doctrines is at least as important a federal interest as those interests that, according to other courts, justify the application of federal common law principles. 1) This is good case in its discussion of successor liability issues.

4 2) Note that this case dealt with the assets acquired by Whelco, and not with accounts created by Whelco.

5 In re: JERSEY TRACTOR TRAILER TRAINING, INC., Debtor. WAWEL SAVINGS BANK, Plaintiff, v. JERSEY TRACTOR TRAILER TRAINING, INC. and YALE FACTORS NJ, LLC, Defendants 1) Wawel Savings Bank made loan to JTTT secured by all asssets and properly perfected. 2) Uunder bank s security agreement, JTTT was free to collect and compromise its own receivables and the bank imposed no restrictions on JTTT's use of its receivables or their proceeds; nor did the bank monitor JTTT's business or its collateral. 3) Under the Bank s -JTTT security agreement, the bank only had the right to take possession of JTTT's accounts receivable or other collateral, or restrict JTTT's use of such collateral, when a default by JTTT had been declared by the Bank. The default by JTTT was its filing for bankruptcy protection in April 2006, long after all the transactions at issue had taken place. 4) Yale conducted periodic UCC searches through its regular search company, Dun and Bradstreet. These reports searched filings against "Jersey Tractor Trailer Training", omitting Inc., not the correct corporate name. The searches did not disclose the Bank s security interests against JTTT's assets. 5) The factoring agreement and all related documentation referred to the entity known as Jersey Tractor Trailer Training, Inc. 6) Yale filed a UCC-1 Financing Statement on March 26, 2003, (i.e. after the bank s filing) on all present and after acquired accounts receivable of JTTT. 7) On or about December 20, 2005, the bank learned of the approximate amounts purported to be owed by Debtor to Yale, as well as the fees and interest rate being charged by Yale. The bank advised Yale that the bank had a valid first lien in the accounts receivable of Debtor, and expressed his objection to the factoring of JTTT's accounts receivable. As a result of this disclosure, Yale conducted a new lien search and first discovered the existence the bank s lien. 8) Yale persisted in its collection actions against Debtor's customers. 9) Debtor goes bankrupt and bank sues Yale to recover the amount of its collections. 1) A junior secured party is not necessarily required to disgourge collections to the senior secured party.

6 2) Importance of getting name right. 3) Account was an instrument (this is wrong). 4) It is not unreasonable to expect Yale, as an entity who's sole business is the factoring of accounts receivable, to not only utilize the correct search method, but to conduct a proper UCC search of the Debtor. 5) No tortuous interference since no malice. 1) Bank did not have conversion claim since It was JTTT, not the Bank, which was the owner in possession of its accounts receivable, subject only to the Bank s lien, and which was permitted to use its receivables in its discretion. Thus, the only way the Bank could take possession and ownership of said receivables was to declare a default against JTTT, which did not occur until JTTT's bankruptcy filing. Secondly, upon loaning monies to JTTT, the relationship between JTTT and the Bank became that of debtor and creditor. Accordingly, it cannot be said that the JTTT/Yale factoring arrangement amounted to a conversion of the Bank s property and, therefore, the claim for conversion must be denied. Thus, the Court is now left to measure the damages sustained by the Bank.Prior to the bank s declaration of default, which was delayed until the bankruptcy filing, JTTT was free to utilize all receivables in its business operations without restriction. In other words, JTTT was empowered by the bank to expend the proceeds of the receivables in any fashion it so desired. Upon the declaration of default, the banmk reasonably could expect to recover only those receivables and proceeds which remained outstanding and/or readily identifiable. For instance, the bank could not expect to recover receivable proceeds used to pay suppliers or employees in the ordinary course of business. Accordingly, the bank is entitled only to a judgment granting it entitlement to all receivable proceeds presently held in escrow, as well as the proceeds of all outstanding accounts receivable.

7 Randall J. House, Debtor; Amcore Bank NA, Plaintiff, v. Randall J. House, Defendant 1) The debtor filed a Chapter 7 bankruptcy petition on October 14, ) House was the sole director, officer and owner of RJH, Inc. ('RJH"), a corporation that investigated fraudulent claims for insurance companies. 3) On the date of the bankruptcy filing, RJH had destroyed the job files and only possessed a few invoices. 4) The only accounting records consisted of bank statements and tax returns. 5) The computers contained only correspondence. 6) After the chapter 7 trustee indicated the estate had no interest in the computers utilized by RJH, House had all of the computer data deleted in order to start with a clean slate. 7) Factoring agreement provided that The Bank hereby purchases from the Business, and the Business hereby assigns and sells to the Bank, as absolute owner, the Business's entire interest in such of its currently outstanding Receivables as are detailed and attached as Exhibit A to this Agreement, as well as its future Receivables represented by Invoices the Business delivers to the Bank. 8) Debtor did not turn over proceeds of nonfactored sales and this was the basis of the bank s non-dischargeability complaint. 1) The 7th Circuit held that "section 523(a)(4) reaches only those fiduciary obligations in which there is substantial inequality in power or knowledge in favor of the debtor seeking the discharge and against the creditor resisting discharge, and does not reach 'a trust that has a purely nominal existence until the wrong is committed. 2) House has a two-year degree in general studies and received an Illinois Private Detective License in Amcore, on the other hand, is a banking institution. Miller has a bachelor's degree in business management, a two-year degree in banking and finance and twelve continuing education classes in accounting and cash flow matters. In addition, he has been a commercial lender for twenty-one years and handled mostly cash flow issues for businesses, lines of credit and borrowing base. The asset lending group that Miller oversees purchases about $ 10 million a month in accounts receivable. 3) Thus, even assuming that a fiduciary relationship existed between House and Amcore, this Court finds that it did not involve the necessary inequality of power and knowledge required to fall within 523(a)(4). Therefore, this Court finds that the

8 debt is not excepted from discharge based upon fraud or defalcation while acting within a fiduciary capacity. 4) Both embezzlement and larceny require a fraudulent intent, albeit at different points in time. Thus, Amcore must demonstrate that House possessed a fraudulent intent in order to prevail on either theory. The critical facts that Amcore relies upon to support its theory include House's failure to tender all monies it received from account receivables to Amcore and the deposit of those funds into two other bank accounts. It is readily apparent that the business relationship between House and Amcore was strained, at best. The critical issuer, however, is whether House fraudulently or deceitfully diverted accounts receivables into the other bank accounts. 5) House reasonably believed that not all payments were required to be submitted to Amcore. House testified that some invoices were handled "outside the program." House's belief that invoices were "outside the program" was based upon Amcore's refusal to purchase certain invoices for insurance reasons and sometimes from a certain customer. Miller explained that certain accounts were "restricted" due to slow payments. House did not understand the BMA to prohibit him from selling services to those customers. Thus, he continued to do business with those customers "outside the program" and deposited those funds into the other bank accounts. 6) Wile Miller does not understand the BMA to allow for such treatment, the language of section 2.1 provides that the Bank purchased and RJH sold future receivables represented by invoices "delivered to" Amcore. House's explanation for his belief is both reasonable and credible. House testified that he informed Miller of the practice as early as Based upon his belief that some invoices were "outside the program," House would deposit payments on those invoices into the other bank accounts. Miller testified that his staff reviewed documentation received from three clients (Gallagher, Chubb and Jones) and matched invoice numbers noted on checks with those deposited into the Harris Bank and Charter One accounts and with Amcore's records of purchased invoices. Thus, this Court must determine if House only deposited account receivables he believed were "outside the program" into the Harris Bank and Option One accounts. 7) RJH staff tried to note the invoice number on checks they received before sending them to Amcore in order to facilitate proper credits for its customers. At Amcore's accounting practices fall short, at best. 1) This is a good case to provide an outline of what is required to sustain a claim of nondischargeability where all the debtor did is retain accounts proceeds.

9 In re: Michael R. Borden and Rhonda F. Borden, Debtors. GENOA NATIONAL BANK, a National Banking Association, Plaintiff/Appellee, v. SOUTHWEST IMPLEMENT, INC., a Nebraska Corporation, Defendant/Appellant. 4:07CV3048, BK , A UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA August 20, 2007, Decided August 20, 2007, Filed 1) Southwest entered into a security agreement with Michael Borden, whose driver s license and tax returns, identified him as Michael R. Borden. 2) Birth certificate shows Michael Ray Borden. 3) Bank accounts are in name of Michael Borden. 4) Southwest filed against Mike Borden. 5) Search of UCC records, using SOS standard search logic did not pick up filing. 1) By using the nickname, Southwest did not provide name of debtor as required by 9-503(a). 1) Names of individuals continues to be a problem, with no solution in sight, other than the Texas fix, which blesses a filing against the name in a driver s license.

10 Top Banana et al v. Dom s et al 2007 U S Dist LEXIS ) This case was reported last year. This is a new chapter. 2) PACA claimants were fighting with Platinum Funding Corp. 3) The issue was the amount of Platinim s debt. 4) After the factoring agreement was terminated by Dom s, Platinum charged back all open invoices. The factoring contract did not give it the right to do so. 1) Platinum's arguments that it had the unilateral right to make the charge backs are unavailing. Platinum contends that events after Dom's closure of business caused Dom's to breach its representations and warranties in the Account Agreements which gave Platinum an independent right to charge back. When Dom's sold the receivables to Platinum, it warranted in the Account Agreements that Dom's was the sole owner of the invoices and that each of the receivables was due and payable without any counterclaims or set-offs, and free of liens or charges. Platinum argues that these warranties were breached as the accounts receivable became subject to the claims of the PACA Trust Beneficiaries after Dom's closure of business. However, the claims by the PACA Trust Beneficiaries against the receivable collections after Dom's closure of business do not alter the validity of the warranties which promised that the receivables were free of liens at the time of their sale. All of the invoices were sold prior to Dom's closure of business, before any claim by the PACA Trust Beneficiaries could have been made on the collections, so Dom's has not breached its representation and warranties. 2) The court found that Platinim did not have this right, and therefore these unpaid accounts were Platinim s responsibility. 1) Platinum s contract could have provided that, after default, all accounts could be charged back. 2) This is not a PACA issue, but only a drafting issue.

11 Whelco Industrial, Ltd., Plaintiff v. United States of America, Defendant, Case No. 3:05CV7141 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION 2007 U.S. Dist. LEXIS ) Whitney was indebted to the IRS, who filed federal tax liens. National City Bank had a first lien on the assets, senior to tax lien. 2) Greenfield Commercial Capital had a junior lien on the assets, and a first on the accounts. 3) Bank started receivership and had the receiver sell the assets to Whelco, a new entity formed by the son of the owner of Whitney pursuant to court order free and clear of liens. 4) The IRS knew of this but was not a party to the receivership proceeding. 5) IRS filed liens against Whelco as the alter ego/fraudulent transferee/nominee of Whitney. 6) Whelco brings this action seeking a declaration that the assets it bought are free of the tax lien. 1) The federal common law, [in contrast to state law,] applies a different test for determining whether a successor corporation is liable for the obligations of a predecessor. Rather than looking to the continuity of ownership, federal common law looks at continuity of operations: under federal common law, successor liability can be applied if the successor had notice of the potential claim before the acquisition and there is substantial continuity in the operation of the business before and after the sale. 2) Whelco was on notice of the tax liens before it took over the operations and, then, later, the assets of Whitney. Whelco's business remained the same as Whitney's. Thus, under the federal "substantial continuity of operations" test, Whelco can be held liable for the taxes owed by Whitney. 3) To apply federal common law in this case rather than the law of Ohio requires a specific showing of "a significant conflict between some federal policy or interest and the use of state law." Mickowski v. Visi-TrakWorldwide, LLC, 415 F.3d 501, 511 (6th Cir. 2005). The dispositive question in this case is, therefore, whether application of Ohio's continuity of ownership test would conflict significantly with "some federal policy and interest.

12 4) Thus, under the federal "substantial continuity of operations" test, Whelco can be held liable for the taxes owed by Whitney. 5) Tax collection unimpaired by inconsistent state doctrines is at least as important a federal interest as those interests that, according to other courts, justify the application of federal common law principles. 1) This is of relevance in the factoring of staffing companies, where there is often the formation of a new company to take over the business of a former company with tax problems. 2) This case leave lots of open questions. For example, although it holds that Whelco is liable for the federal taxes, it appears that the tax lien did not carry over from Whitney. Thus the IRS only obtained a tax lien when it filed against Whelco. 3) It appears that if you were factoring Whelco, you would not have to worry about the tax lien on the processor company, but only on the tax lien when and if filed against Whelco. But in such situations, you should search every 30 days.

13 BROOKRIDGE FUNDING CORP., Plaintiff, v. NORTHWESTERN HUMAN SERVICES INC. Defendant. Civil Action No. 3:99 CV 2339 (CFD) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT 2007 U.S. Dist. LEXIS June 26, 2007, Decided 1) This is straightforward case involving an estoppel letter. Brookridge did everything right. 2) The Acknowledgment signed by Brookridge, the client and the account debtor confirmed that the account debtor owed $ 2,759, to the client under the invoices, explained that the client had assigned the invoices to Brookridge, and affirmed that the account debtor would pay Brookridge, not the client CSI, for the invoices. 3) The account debtor refused to pay, claiming the estoppel letter lacked consideration. 1) The court cited established law to the effect that consideration could include a legal detriment, which was found here, as in most similar cases, by the funding of the invoices to the client. 1) The factor might have lost if it had funded before getting the estoppel letter. Good reminder to factors on the importance of care in the drafting and handling of estoppel letters.

14 COOSEMANS SPECIALTIES, INC., et al. v. JACK GARGIULO and PLATINUM FUNDING CORP et al 1) This PACA case has been around for a while. Platinum is not actually involved in the dispute. 2) Platinum entered a factoring transaction knowing about PACA issues, but protected themselves by taking a mortgage against the valuable home of the principal of the Debtor. (Note that in my opinion there was a weakness in the factoring transaction structure in that Platinum felt it was covered so long as the equity in the residence was higher than the factoring exposure. That was wrong. The factor s exposure under PACA is for the total of all payments it received.) 3) Everybody went bankrupt and the PACA claimants asserted a claim against the Debtor s principal, since PACA imposes personal liability for violation of the PACA trust. 4) The principal defended by claiming that he did not divert trust assets if the factoring contract was commercially reasonable. 1) Whether a transaction is commercially reasonable is simply one factor that may be relevant in determining whether a PACA trustee has met its ultimate burden of proving that trust assets remained freely available to plaintiffs. We hold that regardless of whether the factoring agreement in this case was commercially reasonable on its face, defendants are, as a matter of law, liable to plaintiffs because the factoring agreement here, unlike the banking agreement in Armata, was with a party having arguable claims of more than one million dollars against the PACA trustee. Thus, there can be no factual dispute that the factoring agreement jeopardized the trust funds and made them unavailable for timely payment to plaintiffs. 1) This case undermines the holding in Boulder Foods, a case which gave some attorneys (not me) reason to believe that a factor was not vulernable to PACA claims if their contract was commercially reasonable.

15 Praxis Capital v. Gardner Introduction This case is being presented just to show how bad things can get. There is not lesson as such to be learned. Aren t you glad you were not Praxis. 1) Jerry Gardner was the President and sole member of Cutting Edge Fabrications, and Jeremy his son and was responsible for arranging the financing with Praxis. 2) In the Financing Application that was supplied to Praxis, Jerry Gardner was identified s the President of Cutting Edge with one hundred percent ownership. In May 2005, Jerry Gardner executed the proposal and returned it to Praxis. Praxis then undertook an investigation of Cutting Edge, including a credit report, analyzing financial data, reviewing tax returns, contacting Cutting Edge's principal customers, procuring credit insurance and obtaining a Dunn and Bradstreet business report. 3) During this investigation, the Gardners told Praxis that Jeremy Gardner would be assisting with the contract administration, accounting, invoicing and planning. However, they did not disclose that Jeremy was under investigation in Denver, Colorado for submitting false statements to multiple banks and lenders, and had been arrested and charged with felony fraud by the State of Colorado. 4) Praxis purchased and factored invoices billed by Cutting Edge based on fraudulent documents submitted by the Gardners to Praxis for seven different companies. In July 2005, Cutting Edge requested that Praxis increase the factoring facility to $ 1,000, From September 15, 2005 until October 14, 2005, Praxis factored five more invoices. On October 12, 2005, the Denver District Attorney's office contacted Praxis. Praxis was advised that Jeremy Gardner was being investigated for financial crimes, including fraud against another factor and for submitting false statements to banks and other financial institutions. 5) Praxis then contacted two of the customers whose invoices Cutting Edge had submitted and learned that neither company had executed any verifications authorizing payment to Cutting Edge. After learning of this information, Praxis confronted Gardner. Jeremy admitted that many of the "contracts" did not exist and that the invoices directed to Praxis for factoring were false. Jerry Gardner also acknowledged that Jeremy had been arrested and charged with fraud and that he had been aware of the charges and in fact had earlier posted bail for Jeremy. 6) Jerry Gardner also admitted that the 2004 tax return that had been submitted to Praxis was false and that he had not contributed $ 250, to Cutting Edge as he had represented. Jerry Gardner however indicated that he had not participated in the fraud and promised to work with Praxis to restructure the Factoring Agreement, to complete the outstanding contracts and to ensure that Praxis was repaid.

16 7) Based on Jerry Gardners' representations, Praxis entered into a First Amendment to the Factoring and Security Agreement. Cutting Edge also agreed that Jeremy Gardner would not have an ownership interest in and would not participate in the operations or management of Cutting Edge or have any involvement with the company. 8) After executing the Pledge and Amendment, Praxis discovered that two of Cutting Edge's largest customers were dissatisfied with Cutting Edge's performance and threatened to terminate the contracts. Praxis also learned that Jerry Gardner was not paying vendors promptly or withholding taxes as required. Praxis then informed Gardner that it no longer had confidence in his ability to manage Cutting Edge. 9) However, despite this new arrangement, Praxis determined that Jerry Gardner withdrew approximately $ 100,000 for the benefit of his son, Jeremy. These funds were procured directly from monies provided by Praxis, as the result of false or materially overstated invoices. Jerry Gardner continued his fraud on Praxis. Jerry Gardner misdirected the proceeds of a $ 32,000 check that represented payment of a factored account, he took possession of another check totaling $ 10,000, he authorized a substantial reduction in the amount due from a customer, he removed trusses and other material fabricated by Cutting Edge for its customers, he removed tools, machinery, and equipment belonging to Cutting Edge, he failed to issue invoices for the benefit of Cutting Edge and marked invoices as "void" in order to divert payment to himself, he overdrew a Cutting Edge bank account and diverted the proceeds for his personal benefit, and he fired employees who were loyal to Doug Thomas. Gardner also wrongfully withdrew $ 4,000 from Cutting Edge's bank account. 10) Jeremy Gardner admitted to intentionally and knowingly defrauding Praxis pursuant to a Plea Agreement in the case: In his Plea Agreement, Jeremy Gardner acknowledged that he had to pay restitution to Praxis, along with various other companies that he had defrauded. He also agreed to stipulate to a prison term of 18 years and restitution in the amount of $ 2,852,148.75, plus interest at the rate of 12% per annum. Gardner represented that Praxis had factored a total of $ 939, Cutting Edge invoices and at least $ 627, were based on fraudulent invoices provided by the defendant. 1) 1)

17 In re: MARK G. BURGHOLZER (fdba Business Funding Group, dba Business Funding Group, Inc., fdba A & M Funding of Western NY LLC), Debtor. LeCHASE DATA/TELECOM SERVICES, LLC, Plaintiff, v. MARK G. BURGHOLZER, Defendant. CASE NO , AP NO UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NEW YORK 2007 Bankr. LEXIS ) Plaintiff LeChase Data/Telecom Services, LLC is a specialty contractor that furnishes and installs telecommunications and data transmission facilities in new and existing buildings. 2) Defendant Business Funding Group, Inc. is a factor, a company that lends money to others on the security of their accounts receivable. 3) Light House entered into an Outside Plant Engineering and Project Management Agreement with WorldCom for the design, engineering, project management, procurement, construction, operation, maintenance, relocation and replacement of various telecommunications network projects within the United States. 4) Light House also entered into an Accounts Receivable Purchase Agreement with Business Funding on January 31, ) On February 4, 2000, Light House instructed WorldCom to pay all invoices directly to Business Funding. 6) Business Funding did not, however, file a notice of assignment (Lien Law 15) or a notice of lending (Lien Law 73). 7) Light House testified that, on occasion, it would request an advance for less than the face value of an invoice. Business Funding would advance funds in the amount requested, and would divide that amount by 0.8 to create a fictitious face value to be used for purposes of calculating the rebate and factor s fee. 8) Light House subcontracted out to LeChase part of two projects for the design. 9) Le Chase sued Light House and its principals and controller for breach of contract, and also asserted claims against these parties and WorldCom and Business Funding for diversion of statutory trust funds in violation of article 3-A of the Lien Law.

18 10) LeChase filed mechanic s liens for the sums remaining due from Light House on the Monroe County projects. 11) After learning that Light House had entered into the factoring agreement prior to Business Funding s incorporation, LeChase commenced a second action in May 2002 against Mark Burgholzer, doing business as Business Funding Group, again alleging diversion of statutory trust funds. 12) Burcholzer files for bankruptcy to avoid claim. 1) The duty of a trustee under the Lien Law with respect to trust funds is very clear and simple. The trust funds are to be paid over to proper trust fund beneficiaries on a particular improvement until all proper trust fund beneficiaries are paid in full; 2) There has been a diversion of statutory trust funds by a trustee. Defalcation may be established even though a debtor's failure to account for money he received while acting in a fiduciary capacity was through ignorance or negligence. Defalcation has been interpreted by the Second Circuit to include innocent defaults. 3) This Court rejects the Debtor's assertion that, because there was a "mistake of fact" as to the nature of the MCI Payments, there can be no finding of a defalcation. Although a true mistake of fact under some facts and circumstances may preclude a finding of a defalcation, here, where the Court of. Appeals found that the Debtor knew or should have known that the Accounts were statutory trust funds, there is not a "mistake of fact." The Debtor is charged with the facts he knew or should have known. 1) NY (and other state trust fund statutes) must be understood before doing any construction factoring.

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