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Td Bank, N.A v. Geryl Pearl

September 19, 2012

TD BANK, N.A., PLAINTIFF,
v.
GERYL PEARL, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff TD Bank, N.A. ("TD Bank") brings this action against Defendant Geryl Pearl, the surviving spouse of Frank Pearl, asserting claims under the District of Columbia Uniform Fraudulent Transfer Act of 1995 (the "DC-UFTA"), D.C. CODE §§ 28-3101-28-3111. Currently before the Court is TD Bank's [9] Motion for a Preliminary Injunction.*fn1 Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole, the motion shall be DENIED.*fn2

I. BACKGROUND

Geryl Pearl is the surviving spouse of Frank Pearl, who died on May 4, 2012 after suffering from lung cancer. During his lifetime, Mr. Pearl held direct or indirect ownership and management interests in a series of business concerns, including Perseus, L.L.C. (the "LLC"), Perseus Holdco, L.L.C. (the "Holding Company"), and Perseuspur, L.L.C. ("Perseuspur").

On September 30, 2010, TD Bank created a $17.5 million unsecured credit facility for the LLC. See Pl.'s Mem., Ex. 1 (Credit Agreement dated Sept. 30, 2010). Mr. Pearl personally guaranteed the loan. See Pl.'s Mem., Ex. 4 (Guaranty Agreement dated Sept. 30, 2010). In the process, he provided TD Bank with financial statements reporting a net worth exceeding $420 million as of December 31, 2009, and $380 million as of December 31, 2010. See Pl.'s Mem., Exs. 10-11 (Personal Financial Statements). Mr. Pearl represented and warranted that, as of the date of the deal and each advance, all of the financial statements and information he presented to TD Bank were "correct" and "complete" and that he had "good and marketable title to all of his assets." Pl.'s Mem., Ex. 1 (Credit Agreement dated Sept. 30, 2010) ¶ 6(b), (d).

According to TD Bank, sometime in late November 2011, Mr. Pearl learned that he had late-stage lung cancer that was likely to be terminal. See Compl. ¶ 10.*fn3 Shortly thereafter, on or about December 21, 2011, Mr. Pearl approached TD Bank seeking to restructure the credit facility. See Pl.'s Mem., Ex. 15 (E-mail from F. Pearl to B. Monday et al. dated Dec. 21, 2011). Specifically, he proposed that the Holding Company, a newly formed parent of the LLC and a wholly owned subsidiary of Perseuspur, would take the place of the LLC. See id. at 1-3. Under the proposal, Mr. Pearl would remain the guarantor. See id. TD Bank, however, did not accept Mr. Pearl's proposal at the time. Instead, it was not until March 2012 that the parties reached an agreement tracking Mr. Pearl's proposal.

On December 27, 2011, before the parties reached any agreement on the proposed restructuring, Frank Pearl created the Perseus Trust, a trust that would operate his interests in the LLC and any affiliated entities upon his death and pay the proceeds to Ms. Pearl. See Richardson Decl., Ex. 7 (Perseus Trust Agreement dated Dec. 27, 2011). Mr. Pearl retained the unfettered right to amend or revoke the trust during his lifetime. See id. art. XV.A. The trust is subject to a "spendthrift" provision, meaning that creditors of Ms. Pearl, but not Mr. Pearl, have a limited ability to reach the trust's assets. See id. art. VII.

On May 13, 2012, some time after the creation of the Perseus Trust, TD Bank and Mr. Pearl closed the proposed restructuring deal. The existing credit facility was terminated, and in its place TD Bank created a new credit facility, this time extending a line of credit to the Holding Company in lieu of the LLC. See Pl.'s Mem., Ex. 9 (Termination Agreement dated Mar. 13, 2012); Pl.'s Mem., Ex. 5 (Credit Agreement dated Mar. 13, 2012). As before, Mr. Pearl personally guaranteed the loan. See Pl.'s Mem., Ex. 9 (Guaranty Agreement dated Mar. 13, 2012). He again represented and warranted that, as of the date of the deal and each advance, all of the financial statements and information he presented to TD Bank were "correct" and "complete" and that he had "good and marketable title to all of his assets." Pl.'s Mem., Ex. 5 (Credit Agreement dated Mar. 13, 2012) ¶ 6(b), (d).

Mr. Pearl passed away on May 4, 2012. His death was an event of default under the extant credit agreement, and TD Bank therefore became a creditor of Mr. Pearl's estate. See id. ¶ 9(m). On June 11, 2012, Ms. Pearl, as the personal representative of Mr. Pearl's estate, filed a petition for unsupervised probate in the Superior Court of the District of Columbia. See Pl.'s Mem., Ex. 16 (Petition for Probate dated June 11, 2012). Based on the claims that have been presented to date, it is likely that Mr. Pearl's probate estate will be inadequate to satisfy the claims of all his creditors. See Richardson Decl. ¶¶ 6, 17. On July 16, 2012, TD Bank filed a claim against Mr. Pearl's estate in the Superior Court, seeking a total of $16,401,126.42, excluding interest, attorneys' fees, and costs. See Richardson Decl., Ex. 18 (Claim Against the Decedent's Estate dated July 16, 2012). That figure mirrors the amount of the money judgment that TD Bank intends to seek against Ms. Pearl in this case.

II. LEGAL STANDARD

A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 21 (2008). A plaintiff seeking a preliminary injunction must establish that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of the equities tips in its favor, and (4) an injunction would be in the public interest. Id. at 20. Historically, these four factors have been evaluated on a "sliding scale" in this Circuit, such that a stronger showing on one factor could make up for a weaker showing on another. See Davenport v. Int'l Bhd. of Teamsters, AFL-CIO, 166 F.3d 356, 360-61 (D.C. Cir. 1991). Recently, the continued viability of that approach has been called into some doubt, as the United States Court of Appeals for the District of Columbia Circuit has suggested, without holding, that a likelihood of success on the merits is an independent, free-standing requirement for a preliminary injunction. See Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011); Davis v. PBGC, 571 F.3d 1288, 1292 (D.C. Cir. 2009). However, absent binding authority or clear guidance from the Court of Appeals, the Court considers the most prudent course to bypass this unresolved issue and proceed to explain why a preliminary injunction is not appropriate under the "sliding scale" framework. If a plaintiff cannot meet the less demanding "sliding scale" standard, then it cannot satisfy the more stringent standard alluded to by the Court of Appeals.

III. DISCUSSION

TD Bank contends that the creation and funding of the Perseus Trust by Frank Pearl effected a fraudulent transfer under the DC-UFTA. See D.C. CODE § 28-3104(a)(1), 3105(a). Eventually, it intends to seek a money judgment against Geryl Pearl, as the beneficiary of the Perseus Trust, for the full amount of its claim against Mr. Pearl-that is, approximately $16.4 million. See id. § 28-3108(b)(1). At present, however, TD Bank comes to this Court seeking the "extraordinary relief" of a preliminary injunction. Winter, 555 U.S. at 21. Specifically, TD Bank asks the Court to enjoin Ms. Pearl from selling, transferring, encumbering, or in any other way disposing of any assets or property that she acquired from Frank Pearl, either individually prior to his death or as the surviving spouse upon his death, without prior written authorization from TD Bank or the Court approving the terms of the transaction. See Pl.'s Proposed Preliminary Injunction at 4-5. The injunction would cover an uncertain universe of real estate, artwork, and antiques held by Ms. Pearl. On the record presented,*fn4 the Court concludes that TD Bank has failed to make a "clear showing" that it is entitled to such relief. Winter, 555 U.S. at 21. Accordingly, its [9] Motion for a Preliminary Injunction shall be DENIED.

A. TD Bank Has Failed to Demonstrate a Likelihood of Success on the Merits Although TD Bank's Complaint sets forth no less than sixteen claims, see Compl. ¶¶ 58-104, its Motion for a Preliminary Injunction rises and falls on a single claim, and two theories, under the DC-UFTA. Specifically, TD Bank contends that the creation and funding of the Perseus Trust was actually fraudulent under D.C. CODE § 28-3104(a)(1) and constructively fraudulent under D.C. CODE § 28-3105(a).*fn5 See Pl.'s Mem. at 11-18; Pl.'s Reply at 7-11. ...


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