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Dexia Credit Local v. Rogan

March 30, 2009

DEXIA CREDIT LOCAL, PLAINTIFF,
v.
PETER G. ROGAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

In these supplementary proceedings, plaintiff Dexia Credit Local (Dexia) seeks to satisfy its judgment against Peter Rogan by executing on the assets held by various trusts that he established. Under one of its theories, constructive trust, Dexia contends it is entitled to the assets of those trusts because those assets are the proceeds of fraud that Rogan committed. Under a second group of theories, alter ego, nominee, and sham trust, Dexia contends it is entitled to the assets held by the trusts because they are actually the assets of Peter Rogan.

Dexia has moved the Court to bar Sara, Brian, and Robert Rogan (collectively, the Rogan children) from contesting any facts they admitted or did not oppose in response to Dexia's motions for summary judgment. Pursuant to Federal Rule of Civil Procedure 56(d)(1), the Court grants that motion in part and denies it in part. Dexia and the Rogan children have also filed briefs identifying the issues each side contends are contested or uncontested. As discussed below, the Court also determines, pursuant to Federal Rule of Civil Procedure 16(c), that certain issues are uncontested and other issues remain contested.

Discussion

1. Rule 56(d)(1) Determinations

Dexia has moved for turnover of assets held by trusts of which the Rogan children are beneficiaries. An evidentiary hearing on certain key claims made in the motion is set for March 30, 2009. Dexia previously moved for summary judgment on certain claims. In support of those motions, Dexia submitted statements of undisputed facts pursuant to Local Rule 56.1. The Court granted the motions in part and denied them in part.

In responding to Dexia's summary judgment motions, the Rogan children did not dispute certain of the facts that Dexia, in its Local Rule 56.1 submissions, contended were undisputed. Dexia now contends that those facts should be deemed admitted -- in other words, they should be deemed not genuinely at issue -- for purposes of the upcoming evidentiary hearing.

Federal Rule of Civil Procedure 56(d)(1) provides that "[i]f summary judgment is not rendered on the whole action, the court should, to the extent practicable, determine what material facts are not genuinely at issue . . . [and] issue an order specifying what facts . . . are not genuinely at issue." Fed. R. Civ. P. 56(d)(1). The Court did not make findings pursuant to Rule 56(d)(1) regarding the facts the Rogan children had not contested. As the Court previously advised counsel, the Court considers Dexia's current motion as seeking partial reconsideration, pursuant to Rule 56(d)(1).

The Court agrees with Dexia that it is appropriate to make findings under Rule 56(d)(1) identifying the facts that are not genuinely at issue, to simplify the issues and evidence at trial. The Rogan children have advanced no viable reason why the Court should not do what Rule 56(d)(1) permits (and arguably requires).*fn1

For these reasons, the Court determines that the following facts, contained in Dexia's Local Rule 56.1 statement supporting its motion for summary judgment with respect to the RPP trust and agreed or not disputed by the Rogan children in responding to the motion, are not genuinely at issue:

1. On March 8, 1995, Peter Rogan (Rogan) and Fred Cuppy (Cuppy) created the RPP Finance Trust ("RPP Trust").

2. Rogan is the trust's grantor, and Rogan and Cuppy were its first trustees.

3. Cuppy and Rogan served as the first Trustees of the RPP Trust from March 8, 1995 to November 30, 1996, when Rogan resigned as trustee.

4. Cuppy continued as the sole Trustee for the RPP Trust until December 5, 2006.

5. On December 5, 2006, Cuppy signed a document -- entitled "Deed of Appointment and Resignation of Trustee Supplemental to the RPP Finance Trust Dated March 8, 1995" ("RPP Trust Transfer").

6. Article 10 of the original RPP trust document named B. Macon Brewer, John Tatooles and John Foley as successor trustees, but all three of those men refused to accept the appointment.

7. The RPP Trust Transfer does not state that it is amending the trust.

8. The RPP Trust Transfer does not purport to quote the language of such an amendment.

9. No other document produced in these proceedings in any way addresses the choice of law issue regarding the RPP Trust.

10. From the RPP trust's inception to the present, Cuppy has lived in Indiana and Florida. Since roughly early 2004, Cuppy claims to have resided primarily in Florida.

11. From the RPP trust's inception to the present, Cuppy has performed his trust duties in these states.

12. At least as of 2004, account statements and IRS 1099 forms from financial institutions holding RPP trust assets were sent to Cuppy's Florida address.

13. At least as of 2004, RPP Trust's tax filings list Cuppy's Florida residence as the trust's address, including K-1 forms in which the trust identified Cuppy's Florida address as that of its "fiduciary," i.e., its trustee.

14. All of RPP's known real estate investments are located in Florida. 15. The RPP trust contains no provision blocking the creditors of trust beneficiaries -- including Rogan -- from accessing the trust's assets prior to the demise of both Peter Rogan and Fred Cuppy.

16. Plaintiff Dexia Credit Local is a French banking institution with an agency based in New York, New York.

17. Defendant Peter G. Rogan is a U.S. citizen, who currently resides in Vancouver, British Columbia, Canada. At the time Dexia filed its complaint in this case, Peter Rogan was domiciled in the State of Indiana.

18. Defendant Bainbridge Management, Inc. ("Bainbridge Inc.") is a corporation organized under the laws of Illinois. At the time Dexia filed its complaint in this case, the principal place of business of Bainbridge Inc. was in Merrillville, Indiana.

19. Intervenor Judith K. Rogan is the wife of Peter G. Rogan, and purports to live in Indiana.

20. Intervenor Robert C. Rogan is the son of Peter and Judith Rogan, and lives in California.

21. Intervenor Brian P. Rogan is the son of Peter and Judith Rogan, and lives in the ...


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