PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ TAMMY B. GEORGELAS, as Receiver for Roger S. Bliss, an individual, and Roger S. Bliss d/b/a Roger Bliss and Associates Equities, LLC, a Utah limited liability company, Roger Bliss and Associates Club LLC, and Bliss Club LLC, Plaintiff - Appellee,

v. DESERT HILL VENTURES, INC., Defendant - Appellant.

––––––––––––––––––– –––––––––––––––– TAMMY B. GEORGELAS, as Receiver for Roger S. Bliss, an individual, and Roger S. Bliss d/b/a Roger Bliss and Associates Equities, LLC, a Utah limited liability company, Roger Bliss and Associates Club LLC, and Bliss Club LLC, Plaintiff - Appellee,

v. DAVID HILL, Defendant - Appellant. No. 21-4036

No. 21-4037

________________ _________________ Appeal from the United States District Court for the District of Utah (D.C. Nos. 2:16-CV-00514 -RJS & 2:16-CV-00522-RJS) FILED United States Court of Appeals Tenth Circuit 

### August 22, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 12 ________________ _________________ Stephen K. Christiansen, Chri stiansen Law, PLLC (Joshu a B. Cutler with him on the briefs), Salt Lake City, Utah , for Defendant-Appellants. Julianne P. Blanch, Parsons Behle & Latimer (K atherine E. Venti with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellees.

________________ _________________ Before MORITZ , EBEL , and EID , Circuit Judges.

________________ _________________ EBEL , Circuit Judge.

________________ _________________ These consolidated cases arose fr om a 2015 Securities and Exchange Commission (“SEC”) civil enforcement action against Roger Bliss, who ran a Ponzi scheme through his investment entities (c ollectively, “the Bliss Enterprise”). 1
Mr. Bliss was ordered to repay millions of do llars to the victims of his fraudulent scheme, and the district c ourt appointed Plaintiff-App ellee Tammy Georgelas as Receiver to investigate the Bliss Enterprise’s books and seek to r ecover its property. Defendant-Appellant David Hill was em ployed by the Bliss Enterprise from 2011 to 2015, providing admini strative and ministerial serv ices to the company. He received salary payments from the Bli ss Enterprise both directly and through Defendant-Appellant Desert Hill Ventures, Inc. (“Desert Hill”), of which Mr. Hill was president. After the district court or dered Mr. Bliss to disgorge funds from his

1 “Ponzi schemes are fraudulent business ventur es in which investors’ ‘returns’ are generated by capital from new investors ra ther than the success of the underlying business venture. This results in a snowball effect as the creator of the Ponzi scheme must then recruit even more investors to perpetuate th e fraud.” In re Armstrong, 291 F.3d 517, 520 n.3 (8th Cir. 2002). Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 23 scheme, the Receiver brought these actions against Mr. Hi ll and Desert Hill. The Receiver asserted that the Bliss Enterprise estates we re entitled to recover the $347,000 in wages paid to Defendants, in addition to $113,878 spent by the Bliss Enterprise on renovations to Mr. Hill’s house, under Utah’s Uniform Fraudulent Transfers Act (“UFTA”), Utah Code Ann. § 25-6-1 et. seq. (2016). 2 The district court granted summary judgm ent to the Receiver, finding that the wages received by Defendants from the Bli ss Enterprise and the funds paid by the Bliss Enterprise for the re novations were recoverable by the estates under the UFTA. Defendants appealed to this court, asserting that the di strict court erred in denying their affirmative defense under Utah Code Ann. § 25-6-9(1) and in finding that the renovations were made for Mr. Hill’s bene fit, as required under Utah Code Ann. § 25-6-9(2)(a). The court agrees with De fendants and, accordin gly, REVERSES the district court’s summary judgment orde r and REMANDS for further proceedings.
I. BACKGROUND
A. Factual History The facts relevant to th is appeal are largely undi sputed, at least for the purposes of summary judgment, and any dis putes will be construed in favor of the non-movant Defendants. See Banner Bank v. First Am. T itle Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019).

2 In May 2017, Utah replaced the UFTA with the Utah Voidable Transactions Act. But because these cases were filed in 2016, the UFTA governs. Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 34 Roger Bliss operated the Bliss Enterpri se through various entities from August 2008 through February 2015. Mr. Bliss told investors that his day-trading could earn them at least 100% profits on their investments with mini mal risk, and he presented falsified statements about hi s current accounts to back up those claims. Over the course of the scheme, Mr. Bliss recruite d more than 100 investors and raised approximately $27.3 million, but he only invested $14 milli on of those funds in the stock market. Of the funds raised, Mr. Bliss lost about $3.5 million in trading, spent about $6.7 million on himself or family me mbers, and returned about $16.3 million to investors. In 2011, Mr. Bliss hired David Hill, through Mr. Hill’s company Desert Hill, to perform “administrative and ministerial se rvices” for th e Bliss Enterprise. App’x Vol. III at 481. Mr. Hill worked full-time for the Bli ss Enterprise from September 2011 to February 2015. His regular task s included updating investor spreadsheets with figures provided to him by Mr. Bliss, circulating statem ents and investor spreadsheets to investors, receiving and maintaining investor agreements between Mr. Bliss and investors, handling withdrawal requests and questions from investors to send to Mr. Bliss, coordinating Mr. Bliss’ s schedule, and main taining Mr. Bliss’s website. The Bliss Enterprise paid Mr. Hill a monthly salary for his work, starting at $5,000 per month and increasing to as much as $8,000 per month. In total, Mr. Hill received $347,000 in salary payments fro m the Bliss Enterprise, $317,000 of which was paid to Desert Hill and $30,000 of which was paid to Mr. Hill directly. Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 45 In 2014, several years into Mr. Hill’s employment at the Bliss Enterprise, Mr. Hill’s wife was diagnosed with Amyotrophi c Lateral Sclerosis (“ ALS”). Mr. Bliss then hired third-party contractors to renova te Mr. Hill’s house to make it accessible for his wife’s wheelchair. In total, Mr . Bliss paid $113,878 to the contractors for these renovations.
B. Procedural History On February 11, 2015, the SEC filed a civil enforcement action against the Bliss Enterprise in federal di strict court for several count s of securities fraud. On June 10, 2015, the court appointed Ms. Geor gelas as Receiver. She took control of and investigated the Bliss En terprise’s books and records in an effort to identify and recover the estates’ property. On April 19, 2016, the district court entered final judgment against Mr. Bliss in the civil enforcement action, enjoining him from violating securities laws a nd ordering him to disgorge $1 3,880,909.20 in profits he made from the scheme. 3 On June 8, 2016, the Receiver filed the first of the lawsuits on appeal here against Defendant Desert Hill, and on Marc h 30, 2017, the Receiver filed the second lawsuit against David Hill. 4 She alleged that the Bliss Enterprise operated as a Ponzi

3 In a separate state-court cr iminal action, Mr. Bliss was convicted of four counts of securities fraud and one count of a patter n of unlawful activity and sentenced to a prison term plus more than $21 million in restitution. 4 Both cases were filed in the United States District Court for th e District of Utah, which had jurisdiction over these actions pursuant to 15 U.S.C. §§ 77v and 78aa and 28 U.S.C. §§ 754, 1331, and 1367. Becau se the SEC action in which the Receiver was appointed contained a federal questi on, the district court had ancillary jurisdiction over the state law claims as we ll. See Klein v. Cornelius, 786 F.3d 1310, Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 56 scheme and that both Defendants receive d fraudulent transfers from the Bliss Enterprise as defined by the UFTA, meani ng the amounts paid to Defendants were recoverable by the estates. On February 28, 2020, the Receiver filed Motions for Summary Judgment against the Defendants. The district court granted the Receiver’s Motions for Summary Judgment, holding th at Defendants were liable to repay $460,878—the combined amount of the sala ry payments and renovation costs—to the estates. Defendants then appealed. 5
II. STANDARD OF REVIEW This court “review[s] a summary j udgment decision de novo.” Banner Bank, 916 F.3d at 1326. “[S]ummary judgment will not lie if [a] disput e about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must draw all re asonable inferences in favor of the nonmovant when examining the record. Id. The movant bears the initial burden of demonstrating the absence of a genuine issu e of material fact, but once the moving party has done so, the burden shifts to the n on-movant to establish a genuine issue of fact. Celotex Corp. v. Catr ett, 477 U.S. 317, 323 (1986).

1315 (10th Cir. 2015) (citing Donell v. Ko well, 533 F.3d 762, 769 (9th Cir. 2008)). This Court now exercises its ju risdiction under 28 U.S.C. § 1291. 5 The district court entered two separate or ders of final judgment below: one in favor of the Receiver against Desert Hill in th e amount of $356,552. 13, and one also in favor of the Receiver agains t Mr. Hill in the amount of $161,327.13. Desert Hill and Mr. Hill filed timely notices of appeal of each final order to this court, which consolidated those two cases (Nos. 21-40 36 and 21-4037) on appeal for all purposes. Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 67 III. DISCUSSION The UFTA allowed creditors to avoid a debtor’s fraudulent transfer “to the extent necessary to satisfy the creditor’s claim.” Utah Code Ann. § 25-6-8 (2016); see also Utah Code Ann. §§ 25-6-5, 6 (201 6) (defining fraudulent transfers). Under the UFTA, “once it is established that a de btor acted as a Ponzi scheme, all transfers by that entity are presumed fraudulent.” Wing v. Dockstad er, 482 F. App’x 361, 363 (10th Cir. 2012) (unpublishe d) (citing Donell v. Kowell, 533 F.3d 762, 770 (9th Cir. 2008)). Where avoidance of a fraudulent tr ansfer is appropriat e, the creditor may recover the value of the transfer from “(a) the first transferee of the asset or the person for whose benefit the transfer was made; or (b) any subsequent transferee other than a good faith transferee who took for value or from any subsequent transferee.” Utah Code Ann. § 25-6-9(2) (2016) (emphasi s added). But at the same time, the UFTA provided an affirmative defense to transfer ees “who took in good faith and for a reasonably equi valent value,” so that fund s may not be recovered from them. Utah Code Ann. § 25-6-9(1) (2016). Here, the Receiver assert ed in her Motion for Su mmary Judgment that the payments to Defendants and for the re novations to their house by a third-party contractor were fraudulent transfers by the Bliss Ente rprise, recoverable from Defendants as first transferees or persons for whose benefit the transfer was made. The Defendants in turn argued that the Rece iver had not adequately proven that the Bliss Enterprise was a Ponzi scheme; that Defendants were entitle d to an affirmative defense under § 25-6-9(1) of the UFTA fo r the salary payments received in good Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 78 faith for reasonably equivalent value; and that the funds for the renovations were not recoverable under the UFTA because they were paid to the contractors for the benefit of Mr. Hill’s wife, not Mr. Hill. S ee Utah Code Ann. § 25-6-9(2)(a). The district court held that the Bliss En terprise did operate as a Ponzi scheme, and so it applied the “Ponzi presumption” that all of its transfer s—including those to Defendants—were fraudulent. App’x Vol. III at 492. It further rejected Defendants’ asserted defense under § 25-6- 9(1) and held that Mr. H ill was the person for whose benefit the transfer for the renovations was made under § 25-6- 9(2)(a), justifying summary judgment on both of the Receiver’s claims. On appeal, Defendants no longer contest th at the Bliss Enterprise is properly considered a Ponzi scheme, but they challenge the district court’s conclusions that (1) the salary payments to De fendants were not made in exchange for “reasonably equivalent value” as defined by the UFTA, and (2) the money paid by Bliss to the contractors for the renovations to Mr. Hill’s house were for the benefit of Mr. Hill as defined by the UFTA. Applying de novo review and using the summary-judgment standard of proof, this court finds error in the district cour t’s conclusions on both issues.
A. Mr. Hill’s Wages The $347,000 in wages paid by the Blis s Enterprise to Defendants are not recoverable by the Receiver if the Defenda nts took those funds “in good faith and for a reasonably equivalent value. ” Utah Code Ann. § 25-6- 9(1) (2016). Both “good faith” and “reasonably equiva lent value” are essential el ements of this defense, Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 89 meaning that the Defendants needed to presen t a genuine dispute of material fact as to each of them to avoid summary judgme nt in the Receiver’s favor. But the Receiver did not seek summary judgment on whether Defendants acted in good faith, so the district court assumed—as will we —that the Defendants did take the salary payments in good faith for pur poses of summary judgment. 6 Thus, the only question before us on this issue is whether the sala ry payments were “reasonably equivalent value” for the services perform ed by Defendants for the Blis s Enterprise, or at least whether there is a genuine disp ute of material fact on that issue. Our answer is yes. As an initial matter, there is no disput e that the amounts De fendants were paid constituted reasonable fees for the services they provided. The dispute on appeal instead revolves around what c ounts as “value” in the cont ext of Ponzi schemes as a matter of law. The district court held, and the Receiver argues on appeal, that Mr. Hill’s administrative work in “ensuring the smooth operati on of the Bliss Enterprise and helping to entice new investors into th e scheme” legally could not be considered reasonably equivalent value “because it he lped perpetuate the scheme’s fraud and exacerbated the harm to the victim s.” App’x Vol. III at 496. We do not agree that the services rende red by Mr. Hill as part of a valid employment contract ceased to provide “valu e” simply because they indirectly helped Mr. Bliss pull off the logistics of his fraud, and we assume for the purposes of this appeal Mr. Hill’s good faith. “The primary consideration in analyzing the exchange

6 In other words, we assume, without d eciding, that Defendants had no knowledge that any of Mr. Bliss’s activities were fraudulent or othe rwise unlawful. Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 910 of value for any transfer is the degree to which the transferor’s net worth is preserved.” Klein v. Corn elius, 786 F.3d 1310, 1321 (10th Cir. 2015) (quoting S.E.C. v. Res. Dev. Int’l, LLC, 487 F.3d 29 5, 301 (5th Cir. 2007)). The UFTA states that “[v]alue is given for a tr ansfer or an obligation if, in exchange for the transfer or obligation, property is transferred or an ant ecedent debt is secured or satisfied.” Utah Code Ann. § 25-6-4 (2016). Here, Mr. Hill provided basic administrativ e services to the Bliss Enterprise, pursuant to his employment ag reement; the Bliss Enterprise incurred a debt to Mr. Hill once he performed the services. Paying his wages discharged that debt, and so the monthly salary payments had no effect on the net worth of th e Bliss Enterprise. In this sense, the “value” of Mr. Hill’s work was no different from that of a janitorial company paid to clean Mr. Bliss’s office, and those funds would not be recoverable from the janitorial company under the UFTA. See In re Universal Clearing House Co., 60 B.R. 985, 998 (D. Utah 1986). The fact that Mr. Hill ’s work was more directly related to the day-to-day operati ons of the Ponzi sche me may have bearing on whether Mr. Hill acted in good faith—tha t is, whether he knew of the fraud or not—but it does not mean that Hill’s sa lary payments were not exchanged for “reasonably equivalent value” in the form of his administrative work . And this latter question of value is the only one we consider today, sin ce we are assuming good faith in this appeal. Some courts have held that transfers are not made for “rea sonably equivalent value” when the transferee (even a good-faith transferee) is being paid to directly Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 1011 solicit people to invest in and to be defra uded by the Ponzi scheme. E.g., Warfield v. Byron, 436 F.3d 551, 554–55 (5th Cir. 2006); Miller v. Taber, No. 1:12-CV-74-DN, 2014 WL 317938, at *2 (D. Ut ah Jan. 29, 2014) (unpublis hed); Wing v. Holder, No. 2:09-CV-118, 2010 WL 5021087, at *2 (D . Utah Dec. 3, 2010) (unpublished). Defendants call this approach the “referral-fee exception” to the standard definition of “value” under the UFTA, Ap lt. Br. at 28, because it has only been applied to deny the § 25-6-9(1) defense to transferees w ho were paid by a Ponzi scheme for the specific purpose of referring or recruiting ne w investors to the scheme. Other courts have explicitly rejected this approach to the recovery of Ponzi scheme referral fees, finding that the referral-fee exception is contravened by the generally accepted meaning of “value” and creates an un workable line-drawing problem. E.g., Windham v. Allen, No. 2:18-CV -00054-JNP, 2020 WL 67432 68, at *3 (D. Utah Nov. 17, 2020) (unpublished); In re Fin. Fede rated Title & Tr., Inc., 309 F.3d 1325, 1332 (11th Cir. 2002). This Cour t has not previously relied on the referral-fee exception or any outgrowths of it. See Wing v. Do ckstader, 482 F. App’ x 361, 365–66 (10th Cir. 2012) (unpublished) (recognizing the split of authority on the referral-fee exception but finding th e issue forfeited). We decline to weigh in on the general propriety of the re ferral-fee exception under the UFTA in this case, because it is simply not pr esented by these facts. Mr. Hill was not soliciting investors to join th e Ponzi scheme. While new investors may have read the website he maintained a nd existing investors ma y have spoken with him as a conduit to Mr. Bliss, his comp ensation was not contingent on bringing Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 1112 people into the scheme. The evidence, cons trued in Defendants’ favor and limited to the discrete issue presented to us on appeal , indicates that Mr. Hill’s work was purely administrative and administered in good faith. The distri ct court concluded that Mr. Hill’s work was “intimately in twined” with the investment scheme, which it believed removed any “value” from his work for the purposes of the UFTA. App’x Vol. III at 496. But the phrase “intimately intwined ” lacks independent meaning; anyone from landlords to utility providers to accountants could be “intimately intwined” with such a scheme if the concept was stretched fa r enough, yet we do not think that the compensation for those servic es would be recoverable under the UFTA. See In re Universal Clearing House Co., 60 B.R. at 999. We thus evaluate Mr. Hill’s work un der the typical UFTA definition of “value,” and find that his sa lary payments were made fo r the reasonably equivalent value of the debt incurred by the Bliss En terprise for Mr. Hill ’s administrative services. These transfers thus had no imp act on the company’s net worth, and so the Receiver has failed to demonstrate on this record that, as a ma tter of law, the Defendants are not entitled to the § 25-6- 9(1) defense based on the “reasonably equivalent value” element. 7 The district court’s order of summary judgment for the Receiver on this issue, requiring Defenda nts to repay their $347,000 in salary payments, is therefore REVERSED.

7 Again, we offer no opinion on the good-faith element of the defense, which is not before the Court and would be a question for the jury at trial. Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 1213 B. Renovations to Mr. Hill’s House Whether the Receiver is entitled to summary judgmen t to recover the $113,878 paid by the Bliss Enterprise to independent contractor s to renovate Mr. Hill’s house depends on a different provision of the UFTA. This transaction, too, is subject to the Ponzi presumption that it was a fraudulent tran sfer. Mr. Hill cannot rely on the § 25- 6-9(1) affirmative defense because he exchanged no value at all for Bliss’s renovations, given that Bliss paid the thir d-party contractors to do the work on the house without asking for anything in return from Mr. Hill. Mr. Hill was not a direct transferee of the funds—only the contractors were, but th e Receiver did not seek to recover the funds from them. Rather, the Receiver sought to recover the renovation money from Mr. Hill not because he was a firs t or subsequent tran sferee but because he was “the person for whose benefit the tr ansfer is made,” against whom judgment is allowed under § 25-6 -9(2)(a) of the UFTA. The Receiver asserts that th e transfer was made to be nefit Mr. Hill because the renovations allowed “an ailing member of Mr. Hill’s family—his wife—to move more freely and comfortably around the house,” and enable d Mr. Hill to “more easily support his wife as her prim ary caregiver,” particularly given that he worked from home. Aple. Br. at 19. The district c ourt agreed, and further stated that “Hill continues to live in the home and has retain ed all the value from the remodel,” given that he owns the house. App’ x Vol. III at 499. Accordingl y, the court held that the Receiver was entitled to recove r the $113,878 from Mr. Hill. Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 1314 Mr. Hill argues on appeal that the Rece iver presented no ev idence that he directly benefited from the renovations in term s of his role as a caregiver or in terms of the value added to his home, precluding summary judgment on those bases. To establish a genuine issue of ma terial fact as to whether he benefited, Mr. Hill points to the affidavit he submitted to the district court that stated The work done on my home was solely for the benefit of my wife, and only involved modifi cations to make my house accessible to my wife while sh e used her wheelchair. The modifications were made to ADA standards and included: a. The installation of zer o-threshold egress doors; b. Widening doorways and hallways; and c. Ensuring that there were no steps or “lips” from room to room. App’x Vol. VI at 964. Thus, Mr. Hill asse rts that the sole “per son for whose benefit the transfer was made” was not hi m, but his wife. Id. at 978. For the purposes of summary judgme nt, the Receiver asks for too many inferences from the meagre evidence presented regarding whether and how Mr. Hill benefited from the transfer to pay for the renovations. Viewing th e facts in the light most favorable to Mr. Hill, we cannot assu me that the transfer which paid for the renovations to the house increased its va lue and thus provided a benefit to Mr. Hill. We also cannot a ssume that the transfer made Mr. Hill’s role as a caregiver easier. There is likewise no evidence to demonstrate that Mr. Hill took on or was freed from any legal obligations as a result of Mr. Bliss’s pa yment to the contractors. Consequently, the Receiver failed to make the required showing be low that Mr. Hill “actually received a benefit” and that any benefit “derived di rectly from the transfer.” Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 1415 In re Brooke Corp., 488 B.R. 45 9, 471 (Bankr. D. Kan. 2013). 8 See also In re Meredith, 527 F.3d 372, 376 (4th Cir. 2008) (“[A] pers on must actually receive a benefit from the transfer in order to be an ‘entity for whose bene fit’ the transfer was made . . . . [O]ur purpose ‘is to look th rough the form of the transaction and determine which entity actually benefitte d from the transfer.’ ” (quoting In re Compton Corp. , 831 F.2d 586, 595 (5th Cir. 1987 ))). Because a genuine issue of material fact remains regarding whether Mr. Hill was the person for whose benefit the $113,878 transfer by Mr. Bliss was ma de under the UFTA, we hold that summary judgment in the Receiver’s favor on this question was inapprop riate. We thus REVERSE and REMAND for further proceedings.
IV. CONCLUSION Based on the foregoing, we REVERSE the district court’s summary judgment order as to both the Bliss Ente rprise’s transfer of salary payments to the Defendants and Mr. Bliss’s transfer of funds for renova tions to Mr. Hill’s house. We REMAND for further proceedings cons istent with this opinion.

8 Brooke Corp. and related authorities did not interpret the precise language in the UFTA that is at issu e here, instead analyzing a phrase in a federal bankruptcy statute: “the entity for whose benef it such transfer was made.” 11 U.S.C. § 550. We think this language is sufficiently analogous to Utah’s statutor y text to provide a baseline approach for identifying “the person for wh ose benefit the transfer is made” under § 25-6-9(2)(a) of the UFTA. See Klein v. King & King & Jones, 571 F. App’x 702, 704 n.2 (10th Cir. 2014) (unpublished) (citing federal bankr uptcy statute as persuasive authority for in terpreting UFTA provision). Appellate Case: 21-4036 Document: 010110727691 Date Filed: 08/22/2022 Page: 15