UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

In re:

SIMON REYNOLDS,

Debtor.

/

Case No.: 17-20026-MAM

Chapter 7

NICOLE TESTA MEHDIPOUR, 

Plaintiff. 

Adv. Proc. No. 19-01314-MAM

v. 

JPMORGAN CHASE BANK, N.A.; 

JPMORGAN CHASE & CO.; AND ALG 

CAPITAL GROUP LIMITED INC.,

Defendants. 

/

MEMORANDUM OPINION AND ORDER 

DENYING MOTION TO DISMISS (ECF NO. 17)

Does the Court’s authority to determine whether funds are estate property

Mindy A. Mora, Judge

United States Bankruptcy Court

_____________________________________________________________________________

ORDERED in the Southern District of Florida on April 23, 2020.

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create a basis for subject matter jurisdiction when the parties dispute whether the 

assets should be included in the estate in the first place? The Court concludes that 

the answer to this question is “yes” and denies Defendants JP Morgan Chase Bank, 

N.A. and JPMorgan Chase & Co’s (“Chase Defendants”) motion to dismiss (ECF No. 

17) (the “Motion”) for lack of jurisdiction. The Court also denies Chase Defendants’ 

request to dismiss for failure to state a claim. 

I. Procedural Background and Complaint Allegations

Simon Reynolds (“Debtor”) filed a petition for chapter 7 bankruptcy relief on 

August 7, 2017. Exactly two years later, the chapter 7 trustee (“Trustee”) filed this 

adversary proceeding against Chase Defendants and ALG Capital Group Limited Inc. 

(“ALG”). The Complaint (ECF No. 1) asserts ten causes of action based on multiple 

legal theories, including fraudulent transfer under the Bankruptcy Code and 

applicable state law, transfers otherwise avoidable under the Bankruptcy Code, 

disallowance of claims, unjust enrichment, and alter ego/veil-piercing.1

In the Complaint, Trustee describes a complex pattern of fund-shifting at 

Debtor’s direction. This web of interconnected transfers apparently continued 

postpetition and involved multiple accounts, some of which were not under Debtor’s 

sole (or even direct) control. Those accounts include accounts with Chase Defendants

(the “Chase Accounts”). At the heart of the web lies ALG, Debtor’s wholly owned

company.

1 Nine of the counts involve Chase Defendants. The tenth count (alter ego/veil-piercing) is asserted 

solely against ALG. 

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The ultimate questions at issue in this adversary proceeding are: (1) did Debtor 

orchestrate the flow of funds to (and from) the Chase Accounts; (2) does Debtor’s 

purported manipulation of the transfers show intent to defraud his creditors; and 

(3) do the facts demonstrate a sufficient nexus between Debtor, ALG, the transfers,

and Chase Defendants such that Chase Defendants knew or should have known 

about Debtor’s scheme? Each question presents a fact-specific inquiry that cannot be 

finally determined at this stage of the Adversary Proceeding.

II. Analysis

The Motion seeks dismissal of the Complaint on two bases: (1) subject matter 

jurisdiction and (2) failure to state a claim.2 Chase Defendants insist that Trustee 

has failed to set forth an adequate factual predicate to establish that the funds 

Trustee seeks to recover (the “Disputed Funds”) are property of the estate, rather 

than ALG’s separate property or funds of Debtor’s wife. Chase Defendants suggest 

that Trustee has failed to adequately identify the initial source of the Disputed 

Funds. Finally, Chase Defendants describe the origin of the Disputed Funds as

fundamental to the threshold issue of this Court’s jurisdiction.

Trustee’s Response (ECF No. 29) counters that dismissal is inappropriate 

because the Complaint pleads a clear legal basis for subject matter jurisdiction

through allegations of “core” claims arising under the Bankruptcy Code. Trustee 

2 Chase Defendants cite to Rule 12(b)(6) for each of these arguments, but Rule 12(b)(1) governs 

challenges to subject matter jurisdiction in the context of a motion to dismiss. See infra Garcia, 104 F. 

3d at 1260. 

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characterizes the Motion as a thinly disguised attack on the veracity of facts 

supporting Trustee’s claims rather than upon the jurisdictional basis of Trustee’s 

allegations. Finally, Trustee asserts that the Complaint need not allege that the 

Disputed Funds were property of Debtor’s estate, only that Debtor controlled them.

A. Subject Matter Jurisdiction (Rule 12(b)(1))

Rule 12(b)(1) governs challenges to subject matter jurisdiction at the dismissal 

stage. Trustee correctly observes in her Response that “it is extremely difficult to 

dismiss a claim for lack of subject matter jurisdiction.” Garcia v. Copenhaver, Bell & 

Assocs., M.D.’s, P.A., 104 F.3d 1256, 1260 (11th Cir. 1997).3

Attacks on subject matter jurisdiction in the context of a motion to dismiss 

come in two forms: facial and factual. Id. at 1261. Facial attacks merely require a 

court to investigate whether the plaintiff has alleged a procedurally adequate basis 

for subject matter jurisdiction. Id. Factual attacks, however, seek to undermine the 

factual underpinnings supporting a claim of subject matter jurisdiction. Id. In other 

words, a factual attack aims to knock out the structural basis of the claim by removing 

a core fact required for the court to exercise jurisdiction. Id.

Chase Defendants do not clarify in the Motion whether their challenge to this 

Court’s jurisdiction is a facial or factual attack. Nor do they provide the Court with 

supplemental evidence (e.g., affidavits) to support their contentions. In the absence 

3 A subsequent decision by the Eleventh Circuit Court of Appeals, Scarfo v. Ginsberg, 175 F.3d 957 

(11th Cir. 1999), presented a direct conflict with Garcia. Scelta v. Delicatessen Support Servs., Inc.,

No. 98-2578-CIV-T-17B, 1999 WL 1053121, at *5 (M.D.Fla.1999). The Eleventh Circuit later clarified 

in Morrison v. Amway, 323 F.3d 920 (11th Cir. 2003), that Garcia remains good law. 

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of clear guidance, the Court will analyze the Motion under each standard. 

1. Facial Attack

In a facial attack, the Court accepts the allegations in the complaint as true. 

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). This fundamental premise 

makes short work of the Court’s analysis. 

In the Complaint, Trustee alleged that the Disputed Funds were either (a) held 

in an account owned by Debtor and disclosed on his schedules and statements of 

financial affairs, (b) under the direction and control of Debtor, or (c) both. See ¶¶ 1-3, 

18-44. Because these allegations collectively assert that the Disputed Funds are

property of the estate, they provide a basis for federal question jurisdiction sufficient 

to repel a facial attack. 11 U.S.C. § 541; 28 U.S.C. § 1334(c)(1); 28 U.S.C. § 157; Kapila 

v. TD Bank, N.A. (In re Pearlman), 460 B.R. 306, 313 (Bankr. M.D. Fla. 2011) (quoting 

Nordberg v. Sanchez (In re Chase & Sanborn Corp.), 813 F.2d 1177, 1180 (11th Cir. 

1987)). See also Cox v. Fox Broadcasting Co. (In re Cox), 433 B.R. 911, 919-20 (Bankr. 

N.D. Ga. 2010) (contemplating existence of jurisdiction to determine whether asset 

constituted property of estate and concluding that “no proceeding [is] more necessary 

to effectuate the in rem jurisdiction of the bankruptcy courts”) (internal quotation 

marks omitted).

2. Factual Attack

In a factual attack, the Court does not presume the truthfulness of the 

allegations in the Complaint. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981); 

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Lawrence, 919 F.2d at 1529 (quoting same). The Court therefore has much greater 

leeway to examine the potency of a jurisdictional challenge. Williamson, 645 F.2d at

412-13 (“[T]here is substantial authority that the trial court is free to weigh the 

evidence and satisfy itself as to the existence of its power to hear the case.”). Because 

evaluation of a factual attack may require consideration of evidence, the first inquiry 

the Court must undertake is whether the issue of subject matter jurisdiction goes to 

the merits of Trustee’s claims. Id.; Garcia, 104 F.3d at 1261; Eaton v. Dorchester Dev.

Inc., 692 F.2d 727, 733 (11th Cir. 1982).4

If Chase Defendants’ challenge implicates an element of Trustee’s claims, the 

Court must next assess the scope of the attack. See Morrison v. Amway Corp., 323 

F.3d 920, 925 (11th Cir. 2003); see also Garcia, 104 F.3d at 1261; Eaton, 692 F.2d at 

733. Because “judicial economy is best promoted when the existence of a federal right 

is directly reached,” federal courts treat a factual attack as a direct attack upon the 

plaintiff’s claims when the element in question is “inextricably intertwined” with the 

merits of the lawsuit. Williamson, 645 F.2d at 415; Eaton, 692 F.2d at 734; Lawrence, 

919 F.2d at 1529 (citing Eaton).5 This is the proper procedural path because a factual 

4 If Chase Defendants’ attack has no bearing upon the merits of a cause of action, then simple logic 

indicates that the attack is tantamount to a facial attack. In that instance, Rule 12(b)(1) supports 

dismissal only if the federal claims are wholly insubstantial and frivolous. Bell v. Hood, 327 U.S. 678, 

682-83 (1981). 

5 Existing case law is oddly silent on how a court should proceed if the element is not inextricably 

intertwined with the merits, but it is likely that the challenged element would not be foundational for 

jurisdiction. For example, the Court can imagine a situation where an attack upon facts supporting 

the existence of a fiduciary duty under 11 U.S.C. § 523(a)(4) would have little impact upon jurisdiction 

if the complaint allegations otherwise supported a finding of jurisdiction for embezzlement or larceny. 

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attack upon subject matter jurisdiction functions as an indirect attack upon the 

merits of the lawsuit when the attack undercuts a foundational element of the claim. 

Williamson, 645 F.2d at 415-16; Garcia, 104 F.3d at 1261 (quoting same).6

Determining whether an attack is “direct” or “indirect” becomes an exercise in 

frustration as the question is largely circular. 7 An attack that goes to the merits of a 

claim is a direct attack. Couching that attack as jurisdictional is an indirect approach, 

but the result is the same—a direct attack. Rather than worry about semantics, the 

Eleventh Circuit Court of Appeals has focused instead upon the impact of the attack 

and structured its analysis accordingly. Morrison, 323 F.3d at 925, 930; Garcia, 104 

F.3d at 1266; Lawrence, 919 F.2d at 1530.

Honing in upon the essence of the attack achieves two purposes. First, it 

provides the plaintiff with all necessary procedural protections. Lawrence, 919 F.2d 

at 1530. Second, it places the arguments in the proper procedural perspective. See 

id.; see also Morrison, 323 F.3d at 925. Because a court entertains fact-intensive 

6 The analysis in Williamson describes why a court should decline to entertain indirect attacks upon 

the merits under Rule 12(b)(1) without defining what constitutes such an attack. 645 F.2d at 415-16. 

Later decisions by the Eleventh Circuit Court of Appeals quote Williamson without expository 

analysis. See, e.g., Lawrence, 919 F.2d at 1529.

7 Usage of the terms “direct” and “indirect” in existing case law is confusing and inconsistent. Although 

the Fifth Circuit Court of Appeals stated in Williamson that a federal court should treat a factual 

challenge to the court’s jurisdiction over a claim as a “direct” attack on the merits of plaintiff’s claim, 

a few sentences later the Williamson court characterized the attack in question as an “indirect” attack 

on the merits. 645 F.2d at 415. Lawrence later described a factual attack as an “indirect” attack if the

truthfulness of the allegation in question is “inextricably intertwined” with the merits of the lawsuit.

919 F.2d at 1530 (“[W]hen the jurisdictional basis of the claim is intertwined with an element of the 

cause of action ... the attack on jurisdiction is also an indirect attack upon the merits.”) (emphasis 

added). 

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arguments only when no material facts remain in dispute, federal courts apply a 

summary judgment standard to a factual attack upon a core element of an asserted 

claim. Lawrence, 919 F.2d at 1530 (“[W]e adopt a summary judgment standard in 

evaluating Rule 12(b)(1) motions that also implicate the merits of a claim ....”). The

elegance of this approach is that it prevents litigants from performing an “end run” 

around the federal rules by arguing dispositive facts before both sides have completed

discovery. Blanco v. Carigulf Lines, 632 F.2d 656, 658 (5th Cir. 1980) (“[F]ederal rules 

entitle plaintiff to elicit material facts regarding jurisdiction through discovery before 

a claim may be dismissed for lack of jurisdiction.”); Eaton, 692 F.2d at 734 (reversing 

district court’s dismissal for lack of subject matter jurisdiction).

a. Does the attack implicate the merits of Trustee’s claims?

The first question is whether the Motion tests the sufficiency of an element of 

Trustee’s claims against Chase Defendants, namely whether those claims implicate 

property of the estate. The short answer is yes, as to all counts except potentially 

Count IX (Unjust Enrichment). The Motion therefore presents a direct attack upon 

the merits of Counts I-VIII of the Complaint. See Williamson, 645 F.2d at 415-16; 

Garcia, 104 F.3d 1261.

b. Is the disputed element inextricably intertwined?

Although the designation of the Disputed Funds as “property of the estate” is 

not an itemized element of each of Counts I–VIII of the Complaint, the supposition 

that the Disputed Funds are estate property is fundamental to the analysis of each 

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claim. The classification of the Disputed Funds as estate property is therefore 

“inextricably intertwined” with the merits of the entire lawsuit. 

Without assuming first that the Disputed Funds are property of the estate, the 

Court cannot determine whether any facts exist that make the Disputed Funds not

property of the estate. In other words, the Court is faced with a chicken-and-egg 

scenario: which comes first, designation of the Disputed Funds as estate property, or 

the Court’s ability to investigate the validity of the claims? 

When stated so simply, the answer becomes obvious. For the Court to proceed, 

it must consider the claims as they are asserted, assuming for the moment that the 

Disputed Funds are estate property. See Lawrence, 919 F.2d at 1530-31 (“[F]ederal 

claims should not be dismissed on motion for lack of subject matter jurisdiction when 

that determination is intermeshed with the merits of the claim and when there is a 

dispute as to a material fact.”).

c. Does a reasonable basis exist for Trustee’s claims?

Having determined that the Court must assume the existence of subject matter 

jurisdiction to proceed with a fact-intensive analysis, the Court is faced with yet 

another hurdle. Are any of the causes of action providing a basis for federal question 

jurisdiction clearly immaterial or insubstantial? If yes, then the Court must dismiss 

those claims prior to applying a summary judgment standard. Bell v. Hood, 327 U.S. 

678, 682 (1946); Williamson, 645 F.2d at 415-16. 

Fortunately, the Court’s analysis of the soundness of Trustee’s claims requires 

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little depth of inquiry. Trustee’s claims do not appear specious, nor is there any reason 

to believe that Trustee asserted Counts I–VIII merely to “create” federal question 

jurisdiction. To the contrary, because the Disputed Funds may provide one of the 

primary sources of recovery for creditors, the assertion of federal—and more 

specifically, bankruptcy court—jurisdiction does not appear to be manufactured. In 

fact, marshaling assets is one of a chapter 7 trustee’s primary duties in bankruptcy 

cases. 11 U.S.C. § 704(a)(1) & (2). 

Having determined that (1) the Motion presents a factual attack upon the 

Complaint, (2) this attack implicates a fundamental element of a majority of Trustee’s 

causes of action, (3) the question of jurisdiction is “inextricably intertwined” with the 

merits of the lawsuit, and (4) the existence of a federal bankruptcy question provides 

a reasonable basis for the Court exercising jurisdiction over multiple counts of the 

Complaint, the Court must now evaluate whether it should nonetheless dismiss the 

Complaint applying a summary judgment standard to the issue of subject matter 

jurisdiction.

d. Is dismissal appropriate?

Chase Defendants’ primary contention is that the Disputed Funds are not 

property of Debtor’s estate. Because bankruptcy courts lack jurisdiction over assets 

that are not within the reach of 11 U.S.C. § 541, Chase Defendants present dismissal 

based upon lack of subject matter jurisdiction as a fait accompli. Without rock-solid 

proof in the record (as it exists at the motion to dismiss stage) that the Disputed 

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Funds are property of Debtor’s estate, Chase Defendants jump to the conclusion that 

this Court presently lacks jurisdiction over the entire dispute. 

Not so fast, Trustee counters in her Response. Trustee insists that the “control” 

test governs, and points to allegations in the Complaint asserting that at least some 

of the Disputed Funds were placed into accounts which were under Debtor’s de facto

“control”. Chase & Sanborn, 813 F.2d at 1181; Pearlman, 460 B.R. at 314 (citing 

same). Trustee believes that factual allegations regarding Debtor’s control over the 

Disputed Funds fulfills any inquiry relevant to this Court’s jurisdiction. If Trustee is 

correct, then actual ownership of the Disputed Funds is irrelevant. 

Although the Court believes that Trustee has the more correct position, the 

Court ultimately need not decide whether actual ownership is relevant or if the 

control test alone is dispositive at this juncture in the Adversary Proceeding. First, 

with very few narrow exceptions, none of which are relevant here, this Court has 

jurisdiction to determine whether assets constitute property of a bankruptcy estate. 

Andrews v. RBI, L.L.C. (In re Vista Bella, Inc.), Adv. No. 12-00060-MAM, 2012 WL 

3778956, at *3-5 (Bankr. S.D. Ala. Aug. 30, 2012); Cox, 433 B.R. at 919-20. C.f. Stok 

Folk + Kon, P.A. v. Carmel (In re Carmel), Adv. Proc. No. 18-01331, 2019 WL 4440032, at 

*10-12 (Bankr. S.D. Fla. March 8, 2019). Second, to the extent that another court could 

(at least theoretically) share jurisdiction over the assets, considerations of judicial 

economy and the interrelated factual nature of the many claims asserted in the 

Complaint weigh strongly in favor of this Court maintaining jurisdiction over the 

Adversary Proceeding. See Vista Bella, 2012 WL 3778956, at *6. Finally, the potential 

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for conflicting results between this Court and any other court also supports retention 

of jurisdiction.

More importantly for the Court’s present analysis, evaluation of the Motion 

applying a summary judgment standard supports a finding that this Court has 

subject matter jurisdiction over the claims asserted in the Complaint at this juncture. 

The ultimate ownership of the Disputed Funds is not just a question in this Adversary 

Proceeding; it is the question from which all other allegations flow. Myriad facts

remain in dispute regarding the depth of Debtor’s control over the Disputed Funds, 

the source and location of the Disputed Assets, the timing and nature of the transfers 

involving the Disputed Funds, the extent of knowledge of Chase Defendants 

regarding the transfers of the Disputed Funds, and other aspects of the alleged 

debtor/creditor relationship. 

The Court simply cannot make an informed decision regarding the validity of 

Trustee’s claims without ample factual support. Chase & Sanborn, 813 F.2d at 1181-

82 (“In determining whether the debtor had control of funds transferred to a 

noncreditor, the court must look beyond the particular transfers in question to the 

entire circumstance of the transactions.”); Stathopoulos v. Alford (In re McMillin), 

482 Fed. Appx. 454, 456-57 (11th Cir. 2012) (quoting same). Chase Defendants failed 

to present the Court with any evidence contradicting Trustee’s claims, nor have they 

supplied the Court with supplemental affidavits or other documentary evidence 

clearly demonstrating the falsity of Trustee’s claims. As a result, the Court declines

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to convert the Motion to a motion for summary judgment. Even if the Court were to 

do so, however, material facts remain in dispute and summary judgment would not 

be appropriate upon that basis. See Rule 56.

e. What about the unjust enrichment claim?

As Chase Defendants point out, bankruptcy court jurisdiction over the 

Disputed Funds is predicated upon the assumption that the administration of the 

Disputed Funds will, at a minimum, have a conceivable impact upon the 

administration of the bankruptcy estate. Vista Bella, 2012 WL 3778956, at *5 

(describing “conceivable effect” test). Because state law provides all elements of the

unjust enrichment claim, bankruptcy court jurisdiction over this claim exists only to 

the extent that judgment may impact administration of the estate. Id. The question

of conceivable impact poses no particular difficulty for the Court.

It is abundantly clear from the record in Debtor’s main bankruptcy case that 

allegations of alter ego status pervade every aspect of the Trustee’s administration of 

Debtor’s bankruptcy estate. Although it is true that alter ego status has not been 

proven for res judicata purposes, Debtor has conceded this point in a settlement with 

Trustee. See ECF Nos. 149 and 164 in Case No. 17-20026. In addition, ALG has thus 

far declined to respond to Count X of this Adversary Proceeding.8

After reviewing the alleged facts in the Complaint and its accompanying 

exhibits, the Court finds that Trustee’s allegations amply meet the standard of 

8 ALG likewise has not engaged counsel to represent its interests. 

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demonstrating a conceivable impact upon Debtor’s bankruptcy estate. The Complaint 

paints a vivid picture of numerous transactions crisscrossing several accounts, at 

least one of which was under Debtor’s direct control and ownership. See ¶¶ 1-3, 14. 

The ancillary question of whether Debtor actually controlled other accounts in the 

name of ALG or Debtor’s wife is not essential to this Court’s determination that 

jurisdiction does exist, at least as to some portion of the Disputed Funds. See Vista 

Bella, 2012 WL 3778956, at *5. 

Without finally determining that ALG is the alter ego of Debtor, the Court 

easily concludes that the ability of Trustee to recover and distribute any amount of 

the Disputed Funds would impact Debtor’s bankruptcy estate. The larger question of 

precisely which of the Disputed Funds are accessible must wait for a more fulsome 

disclosure of facts, either at the summary judgment stage or at trial. 

B. Failure to State a Claim (Rule 12(b)(6))

As with application of Rule 12(b)(1), the Court must first assume jurisdiction 

over the controversy prior to evaluating whether Trustee has stated a claim. Bell, 327 

U.S. at 682. Next, the Court adopts the same initial stance as with a facial attack 

under Rule 12(b)(1), accepting the allegations in the Complaint as true. Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009); Williamson, 645 F.2d at 415-16. Application of a Rule 

12(b)(6) standard inhibits the Court’s ability to dismiss an action, thereby providing

Trustee with valuable procedural safeguards. Williamson, 645 F.2d at 415-16. 

The Court has already determined that it is appropriate to exercise subject 

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matter jurisdiction over all counts involving Chase Defendants. The only question left 

is whether Trustee’s allegations assert a plausible basis for relief. Bell Atlantic Corp. 

v. Twombly, 550 U.S. 544, 555 (2007). Trustee’s allegations have facial plausibility if 

they include factual content supporting a reasonable inference that Chase 

Defendants are liable for the misconduct alleged. Ashcroft, 556 U.S. at 678-79. 

The Court’s earlier detailed exploration of subject matter jurisdiction under 

Rules 12(b)(1) and 56 informs its present analysis of whether the Complaint should 

be dismissed for failure to state a claim. The Court must take Trustee’s allegations 

in the Complaint as true. Id.; Williamson, 645 F.2d at 415-16. Once this occurs, the 

plain language of the Complaint leads directly to the conclusion that Trustee has 

stated claims upon which the Court can grant relief as to all counts of the Complaint.9

Having reviewed the Complaint, the Motion, the Response, and the Chase 

Defendant’s Reply (ECF No. 33), the Court concludes that the Motion tests the factual 

sufficiency of certain allegations, rather than demonstrating that Trustee has failed 

to state legally cognizable claims. The Complaint alleges claims sounding in law and 

does not “invent” claims for which relief cannot be granted. The Complaint also 

provides detailed bank records and a clear description of the purported transfers 

giving rise to theories of recovery. The question of whether or not all available facts 

ultimately support Trustee’s claims must be preserved until after the parties have 

engaged in discovery and presented all relevant evidence to the Court. 

9 See infra II.A.1.

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III. Order

Accordingly, the Court, having considered the Motion, the Response, the Reply,

the full record of this Adversary Proceeding and Debtor’s main bankruptcy case, and 

being otherwise fully informed in the premises, hereby ORDERS AND ADJUDGES

that:

1. The Motion (ECF No. 17) is DENIED. 

2. This Court retains jurisdiction over all matters relating to the 

interpretation or implementation of this Order. 

###

Copy furnished to: 

Dennis M. Campbell, Esq.

Attorney Campbell is directed to serve this order upon all interested parties and file a 

conforming certificate of service.

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