REPORT AND RECOMMENDATION

MARK A. PIZZO, Magistrate Judge.

This matter is before the Court on the Defendants' motion for partial summary judgment (doc. 59). Arthur Nadel, a Sarasota hedge fund manager, and his wife contributed over a half million dollars to the Defendants while Nadel managed his hedge funds as a ponzi scheme. Burton Wiand, the receiver appointed in a Securities and Exchange Commission enforcement action aimed at dealing with Nadel's massive scheme, seeks to clawback those contributions under Florida's Uniform Fraudulent Transfer Act ("FUFTA").1 At issue, is whether FUFTA demands Wiand show the contributions furthered the ponzi scheme, a requirement the Defendants say he cannot meet and entitles them to partial summary judgment as to count one of the amended complaint.2 Wiand argues FUFTA does not impose such a requirement, and the motion should be denied. I agree and recommend accordingly.3

A. Rule 56 standards

Motions for summary judgment should only be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). But once the moving party makes the required showing, the burden shifts to the non-moving party to rebut that showing by producing affidavits or other relevant and admissible evidence beyond the pleadings. Id. at 324; Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1279-80 (11th Cir. 2004). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). The substantive law applicable to the claimed causes of action will identify which facts are material. Id. Essentially, an issue of fact is "material" if, under the applicable substantive law, it might affect the outcome of the case, and an issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259-60 (11th Cir. 2004). In considering the evidence, the court resolves all reasonable doubts about the facts in favor of the non-moving party and draws all justifiable inferences in its favor. Id. at 1260. The court does not, however, weigh the evidence or make findings of fact. Anderson, 477 U.S. at 249-50.

B. Background

Only a limited introduction to the facts is necessary to understand the issues here. Nadel effectively controlled the trading activities of the hedge funds through his management firms (Scoop Management and Scoop Capital).4 For his services, he not only compensated himself handsomely, he also paid his wife extravagantly for "work" performed.5 For example, between 2002 and 2008, the hedge funds paid Scoop Management $64,214,099.22 in total "fees," and Scoop Management paid Mrs. Nadel $1,225,870.77 in purported wages. From all this, the Nadels contributed heavily to the Defendants' causes. The ostensible sources were Nadel's charitable foundation, the Guy-Nadel Foundation, Inc. (the "Foundation"), and their joint bank account. See doc. 26-1 Ex. A.6 But Wiand contends Nadel's scheme fueled the Foundation and the Nadels' joint account, assertions the Defendants do not really challenge.

C. Discussion

Wiand's first count describes three alternative FUFTA violations: "actual fraud" under § 726.105(1)(a), and two separate theories of "constructive fraud" under §§ 726.105(1)(b) and 726.106(1). The Defendants' partial summary judgment motion only speaks to the first, the "actual fraud," whose operative statute, § 726.105(1)(a), says the following:

The Defendants read into this that Wiand must also show that these transfers were in furtherance of the Ponzi scheme.

"The starting point in statutory construction is the language of the statute, and if that is plain, then the sole function of the court is to enforce the statute according to its terms." Calzadilla v. Banco Latino Internacional, 413 F.3d 1285, 1287 (11th Cir. 2005) (citation omitted). FUFTA's plain language does not impose the requirement the Defendants advance. What the statute does require Wiand to show is that the debtor made the transfer with requisite intent to hinder, delay or defraud, a fact that Wiand can establish by proving the underlying scheme. See United States v. Silvestri, 409 F.3d 1311, 1317 n.6 (11th Cir. 2005) (in a Ponzi scheme, money invested by later investors is used to pay returns to early investors with the goal of attracting more investors); Scholes v. Lehman, 56 F.3d 750, 761 (7th Cir. 1995) ("The statute makes no distinction among different kinds of recipient of fraudulent conveyances. Every kind is potentially liable."); Hecht v. Malvern Preparatory School, 716 F.Supp.2d 395, 400-02 (E.D. Pa. 2010) (denying motion to dismiss receiver's fraudulent transfer and unjust enrichment claims to recover donations to school from scheme proceeds); Quilling v. Stark, No. 3:05-cv-1976-L, 2006 WL 1683442, at *6 (N.D. Tex. June 19, 2006) (denying motion to dismiss complaint alleging Stark operated a Ponzi scheme and diverted scheme proceeds to family members, finding that less detail is required in the complaint because additional detailed information regarding transfers peculiarly within knowledge of Stark).7

D. Conclusion

Because Fla. Stat. § 725.105(1)(a) does not require Wiand to show these transfers furthered the Ponzi scheme, I recommend the Defendants' motion for partial summary judgment (doc. 59) be denied.

IT IS SO REPORTED.

NOTICE TO PARTIES

Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen (14) days from the date of its service shall bar an aggrieved party from attacking the factual findings on appeal. 28 U.S.C. § 636(b)(1).