Fidelity National Title Insurance Company of New York v. Howard Savings Bank

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-3629 to 04-3636
F IDELITY N ATIONAL T ITLE I NSURANCE C OMPANY
OF N EW Y ORK ,
Plaintiff-Appellant,
v.
H OWARD S AVINGS B ANK , et al.,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 02 C 643-44, 646-47, 649, 651, 667-68—William J. Hibbler, Judge.
____________
A RGUED N OVEMBER 7, 2005—D ECIDED F EBRUARY 9, 2006
____________
Before P OSNER , E ASTERBROOK , and W OOD, Circuit Judges.
P OSNER , Circuit Judge. Before us is an appeal in a series of
diversity suits (which for the sake of simplicity we’ll treat as
one) against a number of Chicago banks by a title insurance
company under the Uniform Fraudulent Transfer Act, in
force in Illinois as 740 ILCS 160. On the defendants’ motion
for summary judgment, the district judge dismissed the suit
as barred by the Act’s statute of limitations. 740 ILCS
160/10.
Fidelity insured escrow accounts that were controlled by
Intercounty Title Company, which conducted real estate

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2 Nos. 04-3629 to 04-3636
closings, placing the purchase money in escrow until the
sale closed. Intercounty’s owners had the company remove
money from the escrow accounts and use it to buy certifi-
cates of deposit from the defendant banks. The company
pledged the certificates to secure personal loans that the
banks made to the owners, and then directed the banks to
sell the certificates of deposit and use the proceeds to
discharge the loans that the banks had made to the owners.
Thus the owner-borrowers got to keep the money they had
borrowed from the banks (because the banks had repaid
themselves by selling the certificates of deposit), and in this
fashion money in the escrow accounts was funneled to
them. This was only one of the methods that Intercounty’s
owners used to plunder the escrow accounts; others are
described in Fidelity National Title Ins. Co. v. Intercounty
National Title Ins. Co., 412 F.3d 745 (7th Cir. 2005).
Fidelity wants to recover from the banks the money that
was diverted to them (for the purchase of certificates of
deposit) from the escrow accounts. It argues that the banks
received this money without giving consideration to the
equitable owners of the money—the people who had
deposited their purchase money in escrow accounts con-
trolled by Intercounty. Those people—and their insurer,
Fidelity—received neither the certificates of deposit nor
anything else of value from the banks, while the banks
received money from the escrow accounts in exchange for
the certificates of deposit. Fidelity does not contend,
however, that the banks’ action in setting off the certificates
of deposit against the Intercounty insiders’ debts (which
they did by selling the certificates and applying the pro-
ceeds to those debts) was a fraudulent transfer, though it
was a critical step in the transfer of money from the escrow
accounts to the insiders.

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Nos. 04-3629 to 04-3636 3
The banks sold the last of the certificates of deposit to
Intercounty in 1995, but it was not until 2000 that Fidelity
learned that money was missing from the escrow accounts
that it had insured. The missing amount was huge—as
much as $50 million, or even more. Fidelity began an
investigation to determine the whereabouts of the missing
money. The investigation revealed that Intercounty had
bought a certificate of deposit from a bank named Banco
Popular to fund a statutory bond that Intercounty had to
post, but that instead of posting it Intercounty had used the
certificate of deposit as security for a personal loan that
Banco Popular had made to one of Intercounty’s owners. In
December of 2000, Fidelity filed suit under the Uniform
Fraudulent Transfer Act against Banco Popular, but it is not
one of the suits consolidated in the present litigation.
Later that month Fidelity interviewed George Stimac,
Intercounty’s controller, who confirmed that Intercounty
had invested escrow funds in certificates of deposit pur-
chased from various banks. According to notes of the
interview that were taken by one of Fidelity’s investigators,
Stimac “understands (apparently through office scuttlebutt)
that the CDs were sometimes pledged for personal use.”
Stimac did not know which banks had sold those certificates
of deposit, but a search of Intercounty databases produced
a list of them and subpoenas to the banks resulted in
Fidelity’s learning which banks had liquidated the certifi-
cates of deposit that had been sold by them to Intercounty
and then pledged to them by Intercounty to secure personal
loans. By the end of January 2001, Fidelity had identified all
but two of the banks that it has sued in this litigation, but it
did not file the suit until January of the following year.
The Uniform Fraudulent Transfer Act requires that suit be
brought within four years “after the [fraudulent] transfer
was made” or, “if later, within one year after the transfer . . .

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4 Nos. 04-3629 to 04-3636
was or could reasonably have been discovered by the
claimant.” 740 ILCS 160/10. The transfers of escrow money
to the defendant banks occurred more than four years
before Fidelity sued, so the suit was timely only if brought
within a year after Fidelity discovered or could reasonably
have discovered the transfers. By the time its investigators
interviewed Stimac, which was more than a year before it
sued, it knew that banks had participated in transactions
that had resulted in escrow money being improperly
diverted to Intercounty’s owners. It had already sued one of
those banks—Banco Popular—and it had learned from
Stimac that probably there were others. It knew that fraudu-
lent transfers had occurred, because a great deal of money
was missing from the escrow accounts and no explanation
was forthcoming other than that it had been stolen by
Intercounty’s owners. It particularly knew that fraudulent
transfers as it understands the term (incorrectly, as we’ll see)
had occurred, because it thinks that any money originating
in the escrow accounts that passed through a bank en route
to Intercounty’s owners was a fraudulent transfer to the
bank.
Apart from Banco Popular, Fidelity did not know who the
transferees were. But when a statute of limitations does not
begin to run until “discovery,” the discovery referred to is
merely discovery that the plaintiff has been wrongfully
injured. E.g., Golla v. General Motors Corp., 657 N.E.2d 894,
898 (Ill. 1995); Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 633
N.E.2d 627, 630-31 (Ill. 1994); Evans v. City of Chicago, 2006
WL 29209, at *12 n. 28 (7th Cir. Jan. 6, 2006) (Illinois law).
He doesn’t have to know who injured him. He has the
limitations period to discover that, draft his complaint, and
file suit. If despite the exercise of reasonable diligence he
cannot discover his injurer’s (or injurers’) identity within the
statutory period, he can appeal to the doctrine of equitable

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Nos. 04-3629 to 04-3636 5
tolling to postpone the deadline for suing until he can
obtain the necessary information. Cada v. Baxter Healthcare
Corp., 920 F.2d 446, 450-52 (7th Cir. 1990).
Now admittedly it is still unresolved whether Illinois
recognizes equitable tolling. Clark v. City of Braidwood, 318
F.3d 764, 767 (7th Cir. 2003). The Illinois cases that mention
the term seem to mean by it equitable estoppel, Chicago Park
District v. Kenroy, Inc., 402 N.E.2d 181, 184 (Ill. 1980); Medical
Disposal Services, Inc. v. EPA, 677 N.E.2d 428, 433 (Ill. App.
1996), a distinct doctrine governing cases in which the
defendant misleads the plaintiff into thinking that he
doesn’t have to sue yet, or in some other way prevents him
from suing within the statutory period. Equitable tolling
does not require that the defendant have borne any respon-
sibility for the plaintiff’s having missed the deadline.
There is no need to try in this case to answer the question
whether Illinois accepts the doctrine of equitable tolling,
though we venture the guess that it does (or would); it is a
commonplace limitations doctrine and a sensible one. What
is important is simply that once the limitations period has
expired, any further extension is limited to the time neces-
sary to find such additional information as the plaintiff
absolutely needs in order to be able to file a suit. Unterreiner
v. Volkswagen of America, Inc., 8 F.3d 1206, 1213 (7th Cir.
1993); Cada v. Baxter Healthcare Corp., supra, 920 F.2d at 453.
So the one-year “discovery” statute of limitations began
to run in December 2000 (if not earlier), when Fidelity
discovered (and surely by then should have discovered) that
there had been fraudulent transfers from the escrow
accounts that it had insured. Fidelity therefore had to sue by
December 2001 unless it could not identify the transferees
by then; in that event, Fidelity could appeal to the doctrine
of equitable tolling for an extension. But in fact it learned

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6 Nos. 04-3629 to 04-3636
the identity of most of them by the end of January 2001, and
it does not even argue equitable tolling. It is right not to
because nothing prevented it from suing those defendants
and adding others later as the facts about them emerged.
Fidelity argues, however, that the standard analysis of a
discovery statute of limitations does not apply to the
Uniform Fraudulent Transfer Act. As Fidelity points out, the
“discovery rule” (the rule that makes the claim accrue on
the date on which the plaintiff discovers that he has been
the victim of a wrongful injury) is normally a judge-made
graft on statutes of limitations that do not mention discov-
ery, see, e.g., Cada v. Baxter Healthcare Corp., supra, 920 F.2d
at 451; Lama v. Preskill, 818 N.E.2d 443, 448 (Ill. App. 2004),
while here the rule is stated in the statute. But we cannot
fathom why that should make a difference in the content of
the rule. Numerous statutes of limitations incorporate a
discovery rule explicitly, and their discovery rule is inter-
preted the same way as the judge-made graft on the silent
statutes is. E.g., Golla v. General Motors Corp., supra, 657
N.E.2d at 898; Gilbert Bros., Inc. v. Gilbert, 630 N.E.2d 189,
192 (Ill. App. 1994); SASCO 1997 NI, LLC v. Zudkewich, 767
A.2d 469, 474-75 (N.J. 2001).
A more promising distinction is that between a fraudulent
transfer and an ordinary tort, including fraud. The doctrine
of fraudulent transfer creates a species of receiver liability.
740 ILCS 160/8(a); Aps Sports Collectibles, Inc. v. Sports Time,
Inc., 299 F.3d 624, 629-30 (7th Cir. 2002) (Illinois law). When
the owners of Intercounty diverted money in the escrow
accounts to their own pockets, they committed a fraud. Had
they then turned the money over to their adult children,
who either suspected that the money they were getting had
a tainted origin or provided no consideration for receiving
the money, the children would have been the recipients of
fraudulent transfers and would therefore have been liable

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Nos. 04-3629 to 04-3636 7
to Fidelity. United States v. Engh, 330 F.3d 954, 956 (7th Cir.
2003) (Illinois law); Regan v. Ivanelli, 617 N.E.2d 808, 815 (Ill.
App. 1993); Gary-Wheaton Bank v. Meyer, 473 N.E.2d 548, 554
(Ill. App. 1984); Harris v. Aimco, Inc., 383 N.E.2d 631, 633 (Ill.
App. 1978). The fraudulent transfer does not occur, how-
ever, until money is handed to a person from whom the true
owner can recover it by virtue of the doctrine. Island Hold-
ing, LLC v. O’Brien, 775 N.Y.S.2d 72, 74 (N.Y. App. Div.
2004). And this implies that the discovery statute of limita-
tions does not begin to run until the plaintiff has discovered
or should have discovered not that money has been trans-
ferred illegally but that it has been transferred to someone
who is a fraudulent transferee, for otherwise it is not a
fraudulent transfer and the owner of the money has no
claim against the transferee.
But this just means that the mere fact of a transfer of funds
to which one has a claim does not trigger a duty of investi-
gation and thus start the limitations period running; there
must be something fishy about the transfer. This doesn’t
mean that you have to know or have reason to know the
identity of the transferee; you have the statutory limitations
period to discover that, and if that isn’t long enough you
can fall back on equitable tolling. Nor does it mean, as
Fidelity argues, that you have to know of the particular
fraudulent transfers that have occurred. All you have to
know or suspect is that such transfers are occurring; for
knowing that, it is irresponsible to sit back and wait until
the particular transfers are identified to you. Knowing that
Banco Popular had received a fraudulent transfer (at least as
Fidelity interprets “fraudulent transfer”), knowing that
Intercounty had bought other certificates from other banks,
and having reason to think that “scuttlebutt” about some of
those certificates of deposit having been used to repay
personal loans was reliable because it had been repeated by

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8 Nos. 04-3629 to 04-3636
Intercounty’s controller, Fidelity should have known that
fraudulent transfers not limited to Banco Popular had
occurred. It therefore had only one more year in which to
sue.
A statute of limitations is not intended to provide a period
of rest and recuperation after the completion of the plain-
tiff’s investigation. Fidelity had more than four years in
which to discover that money in the escrow accounts that it
had insured had been transferred fraudulently to specific
banks. It did not require an additional 13 months to identify
the specific transfers. The one-year limitations period that
remained to it was ample. Had it not been adequate,
Fidelity could as we have said have appealed to the doctrine
of equitable tolling, and it has not tried to do so.
So the suit was properly dismissed. But for completeness
and perhaps to head off some futile litigation against other
banks, we address briefly the contention of two of the
defendant banks that it is clear (without need for any
further factual development) that there was no fraudulent
transfer to these banks. When Intercounty bought certifi-
cates of deposit from the banks and pledged them as
collateral for the loans the banks had made to Intercounty’s
owners, the company did not reveal to the banks, or cause
them to suspect, that Intercounty was buying the certificates
with escrow money. It told the banks it owed its owners the
money they had borrowed, and it therefore directed the
banks to liquidate the certificates and use the proceeds to
repay the owners’ loans. The bank merely acted as a transfer
agent between Intercounty and the owners. There is nothing
suspicious per se about a corporation’s paying money to its
shareholders, and as far as the banks knew, that was all that
was happening.
Fidelity argues that the transfers to the banks of the
money used to buy the certificates of deposit were fraudu-

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Nos. 04-3629 to 04-3636 9
lent because no consideration was given to the equitable
owners of the money transferred, that is, to the owners of
the escrow money and to Fidelity itself as their subrogee.
But to be a fraudulent transferee, you must know or suspect
that you are not giving any return value to the owner. 740
ILCS 160/9(a); Kennedy v. Four Boys Labor Service, Inc., 664
N.E.2d 1088, 1093 (Ill. App. 1996); Scholes v. Lehmann, 56
F.3d 750, 759 (7th Cir. 1995) (Illinois law). As far as the
banks knew, the money was owed by Intercounty to its
shareholders, and the banks were giving full consideration
for the receipt of the money by issuing the certificates of
deposit.
Fidelity’s theory of fraudulent transfer would cast a dark
cloud over the banking business, and so it is not surprising
that the theory has no legal basis. Fidelity cites a decision of
ours for the proposition that the consideration for a transfer
must flow to the true owner of the money transferred.
Scholes v. Lehmann, supra, 56 F.3d at 758. The transfer held to
be fraudulent in that case was to the ex-wife of the perpetra-
tor of a fraud. She may have had valid claims against him
arising from their divorce, and the release of those claims
was urged as consideration for the transfer. But the transfer
was not of the perpetrator’s funds but of corporate funds,
and the corporation received no benefit from the release of
her personal claims against the perpetrator. Unlike the
banks in this case, she knew she had no claims against the
corporation—knew therefore that she was receiving corpo-
rate funds without any quid pro quo. See also Wilkey v. Wax,
225 N.E.2d 813, 814 (Ill. App. 1967). That knowledge, which
made her a fraudulent transferee, is missing here.
A FFIRMED .

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10 Nos. 04-3629 to 04-3636
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-9-06

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