author: GREGG COSTA, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Francisco Antonio Colorado CESSA, also known as Francisco Colorado Cessa, also known as Pancho, Defendant-Appellant
    No. 16-50326
    United States Court of Appeals, Fifth Circuit.
    FILED May 5, 2017

      Joseph H. Gay, Jr., Elizabeth Beren-guer, Assistant U.S. Attorneys, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    John D. Cline, San Francisco, CA, Chris Flood, Flood & Flood, Houston, TX, for Defendant-Appellant.
    Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

After a jury convicted him of laundering money for the Los Zetas cartel, Francisco Antonio Colorado Cessa was facing sentencing before a federal judge in Austin. Before that hearing, the FBI received a tip about a plan to bribe the judge in exchange for a reduced sentence. A sting operation followed that resulted in bribery charges being filed in Austin federal court against Colorado, his son, and a business partner.

The defendants successfully obtained a transfer of the bribery case to federal court in Louisiana as a result of, among other things, publicity in Austin about the earlier money laundering trial and concerns about trying the case in the courthouse where the federal judge who was the subject of the attempted bribe presides. Not long after that transfer, the government presented a superseding indictment (it added the mens rea of corruptly to the allegations) to the grand jury in Austin that first returned the bribery charges. In the trial that followed in the Western District of Louisiana, the jury found Colorado guilty of both conspiring to bribe and offering a bribe to the judge presiding over his money laundering case.

We must decide whether a superseding indictment is lawful when returned by a grand jury located in the venue where the alleged crime occurred but from which the case has been transferred. We also consider whether it was reversible error not to include definitions of “offer” and “promise” that Colorado wanted in the jury charge on bribery.

I.

No federal court has considered a challenge to the jurisdiction of a grand jury located in the district where the alleged crime occurred to return a superseding indictment after the case has been transferred to another venue because of prejudice. Fed. R. Crim. P. 21(a). That is the procedure that was followed in an Eleventh Circuit case, but the defendant argued only that the pretrial publicity that warranted trial in a different venue also tainted the grand jury. See United States v. York, 428 F.3d 1325, 1331 (11th Cir. 2005) (involving superseding' indictment issued in the Middle District of Georgia after case had been transferred to Southern District of Georgia due to pretrial publicity). York rejected that argument in part because of “the entirely different functions of the grand jury vis-a-vis the trial jury and the different types of eviden-tiary restrictions before each body.” Id. at 1332. Although York did not consider the jurisdictional challenge Colorado asserts, it is notable that neither the courts (trial or appellate) nor York’s lawyer saw a procedural rule that would prevent a grand jury from returning superseding charges involving local crimes once a Rule 21(a) transfer occurred.

The Constitution does not impose such a limit. The Fifth Amendment says nothing about venue, providing only that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” U.S. Const, amend. V. But the Sixth Amendment requires that trial be decided by a “jury of the State and district wherein the crime shall have been committed.” Id. amend. VI; see also art. Ill, § 2 (requiring criminal trials in the state where the crime occurred). As a practical matter if nothing more, in tandem these Amendments mean that a grand jury should return an indictment only in a district where venue lies. Otherwise, the resulting indictment can be dismissed for lack of trial venue. See, e.g., United States v. Cabrales, 524 U.S. 1, 10, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998). Grand juries’ investigating crimes located within their district of empanelment is also consistent with the grand jury’s roots as a local institution. See Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and 'Its Process, 24 Fla. St. U. L. Rev. 1, 6-11 (1996). Without having to decide whether the Constitution limits a grand jury to indicting only crimes occurring in the district where it is convened, we can easily say that constitutional principles are not offended by the Western District of Texas grand jury continuing to charge crimes allegedly taking place in Austin.

The common law practice, antecedent to the Fifth Amendment guarantee, allowed only the grand jury of the county where the crime was committed to indict, though statutes could authorize grand juries in other counties to do so as well. 4 William Blackstone, Commentaries on the Laws of England *300 (“The grand jury are sworn to enquire, only for the body of the county, pro corpore comitatus; and therefore they cannot regularly enquire of a fact done out of that county for which they are sworn, unless particularly enabled by act of parliament.”). Ancient English law was so firm in this rule that when a person was wounded in one county but died in another, “the offender was at common law indictable in neither, because no complete act of felony was done in any one of them.” Id. This gap was fixed by statute, id., just as American jurisdictions have overridden the common law rule when thought necessary, an example being a North Carolina statute allowing lynching to be charged by a grand jury in a county adjacent to the county where the crime occurred. See State v. Lewis, 142 N.C. 626, 55 S.E. 600, 603-04 (N.C. 1906).

This strong tradition of grand juries charging only local crimes typically has not been disrupted when a superseding indictment is returned after transfer to a different venue of the case generated by the original indictment. State cases of old and recent vintage have involved the local grand jury retaining its power post-transfer and the great weight of authority supports that practice. State v. Nichols, 200 S.W.3d 115, 122 (Mo. Ct. App. 2006); Pantazes v. State, 376 Md. 661, 831 A.2d 432, 441 (2003); Smith v. State, 31 Md.App. 106, 355 A.2d 527, 531 (1976); State v. Tucker, 58 N.D. 82, 224 N.W. 878, 881 (1929) (“A statute authorizing a change of venue or a change of place of trial does not in itself preclude a second indictment in the county of original jurisdiction after a change has been effected.”); Stovall v. State, 97 Tex. Crim. 71, 260 S.W. 177, 178 (1924) (holding that a venue transfer does not deprive “the power in the court of original jurisdiction to return a subsequent indictment for the same offense, but denies the right in such court to try accused”); Ex parte Lancaster, 206 Ala. 60, 89 So. 721, 725 (1921) (“[Transfer] deprives [the transferor] county, where the offense was committed, of the right to try the defendant for this offense; but it does not deprive it of the jurisdictional right to indict for the offense.”); Johnston v. State, 118 Ga. 310, 45 S.E. 381 (1903); State v. Patterson, 73 Mo. 695, 700 (Mo. 1881), overruled on other grounds by State v. Roy, 83 Mo. 268 (Mo. 1884); but see Smith v. Commonwealth, 95 Ky, 322,25 S.W. 106, 107 (1894) (holding that transferor county loses “all jurisdiction over the subject-matter of the indictment,” including the ability to bring superseding indictments). As the earliest of these cases explains, a transfer of the case does not displace the authority of the local grand jury because “jurisdiction over the cause is one thing; the power and duty to find a new bill of indictment upon whose charges that cause shall be tried, is another and totally distinct and different thing.” Patterson, 73 Mo. at 700 (citing State v. Tisdale, 2 Dev. & Bat. 159, 19 N.C. 159 (1836)).

Many of these state cases do not even doubt the authority of the grand jury in the original venue to. amend the charges; more often the contested question is whether the superseding indictment is automatically subject to the transfer order. See Smith, 355 A.2d at 531 (concluding that the “better rule” is that subsequent indictments for the same offenses should be transferred to the transferee court “without the necessity of complying with the provisions” of Maryland’s change of venue rule); Lancaster, 89 So. at 725; Johnston, 45 S.E. at 382. On that latter question, the prevailing view is that of the Supreme Court of Alabama, which held that, after a change of venue, a grand jury in the county where the offense was committed retains sole jurisdiction to issue subsequent indictments but that those indictments must then be sent straightaway to the transferee county for trial. Lancaster, 89 So. at 725. That is what happened here as the superseding indictment returned by the Austin federal grand jury was docketed and tried in the case pending in Louisiana federal court.

Without any constitutional or common law limits on the authority of the Austin federal grand jury to supersede its charges even after the case had been transferred to a different district, Colorado relies on a Federal Rule of Criminal Procedure. Rule 21(c) provides that “[w]hen the court orders a transfer .... [t]he prosecution will then continue in the transferee district,” which a treatise explains to mean that “transfer is not for trial only. The entire proceeding ... [is] to be disposed of in the transferee court.?’ 2 Charles Alan Wright & Peter J. Henning, Fed. Prac. & Proc. Crim. § 347 (4th ed. 2009). It turns out that is not what happened here. After Colorado’s trial, his case was sent back to Austin for sentencing so that the judgment being appealed is one issued from the Western District of Texas. But that does not undermine Colorado’s argument that when the Austin grand jury superseded his charges, Rule 21 had divested it of jurisdiction.

His bigger problem is that the Rule does not go that far. It says “the prosecution” is sent to another district. Even with that meaning the entire criminal matter is transferred (not just trials but pretrial hearings, sentencing, etc.), we see no authority saying that deprives the grand jury in the original jurisdiction of the power to continue investigating and charging a local crime. The commentary to the Federal Rule of Criminal Procedure addressing venue (Rule 18) indicates a “prosecution” does not encompass grand jury proceedings. It cites Congress’s definition of “prosecutions” in an earlier venue statute (28 U.S.C. § 114) that required “prosecutions” to take place not just in the district but the division where the crime occurred: “the word ‘prosecutions,’ as used in this statute, does not include the finding and returning of an indictment.” Fed. R. Crim. P. 18 advisory committee’s note to the 1944 adoption; see also Black’s Law Dictionary 1341 (“prosecution” means a “criminal proceeding in which an accused person is tried”) (9th ed. 2004). The idea seems to be the same one animating the state court decisions cited above: a “prosecution” and the grand jury are different proceedings. Also reflective of this distinction is that when a dispute arises with a grand jury that is considering a superseding indictment, the matter is treated as a new miscellaneous filing in federal court and not part of the criminal case considering the original indictment. See, e.g., In re Grand Jury Proceedings, 201 F.Supp.2d 5, 12 n.4. (D.D.C. 1999); In re Grand Jury Subpoena Duces Tecum Dated May 9, 1990, 741 F.Supp. 1059, 1061 (S.D.N.Y. 1990). The broad reading Colorado gives Rule 21 is thus in tension with the independent authority of the grand jury. United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (“No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.”); cf. York, 428 F.3d at 1332 (identifying the distinct role of the grand jury as a reason why publicity adverse to a defendant is not a basis for dismissing an indictment).

Seeing no authority clearly providing that a venue transfer displaces the authority of a federal grand jury to investigate and charge local crimes, we conclude that Colorado could be tried on the superseding indictment.

II.

The trial in Louisiana federal court lasted four days. Colorado argued that he was merely “feeling out” the undercover agents who purported to be crooked Mends of the federal judge. In this theory of the case, Colorado never offered a bribe because he realized that his collaborators on the outside were talking to the police. To support that defense, Colorado requested the following jury instruction:

I have instructed you that the crime of bribery is committed if a defendant corruptly offers or promises money to a public official with the intent to induce the public official to do or omit to do any act in violation of the public official’s lawful duty. I want to explain what it means to offer or promise money to a public official.
An offer or promise is made when the offeror expresses to the public official both the ability and the desire to pay. Mere preparation to make an offer or promise, including preliminary discussions designed to feel out the public official’s willingness to accept a bribe, do not constitute an offer or promise to pay a bribe. Similarly, an agreement to engage in preliminary discussion designed to feel out a public official’s willingness to accept a bribe does not, without more, constitute conspiracy to commit bribery.

The district court refused to provide the instruction, raising doubts about whether the instruction accurately described current bribery law and whether it amounted to a directed verdict for the defense. The jury thus received only the pattern instruction, which requires the government to prove (among other things) that “the defendant directly or indirectly offered and/or promised something of value” to the public official.

Colorado asserts that his proposed instruction defining offer and promise comes from United States v. Hernandez, 731 F.2d 1147 (5th Cir. 1984). In Hernandez, the defendant attacked the sufficiency of the evidence to sustain his conviction for bribery. Id. at 1148-49. Citing cases from other circuits, we stated that an offer is complete when the offeror expresses an ability and a desire to pay. Id. at 1149. That offer was not present because the evidence did not establish that Hernandez expressed an ability or desire to pay a bribe; instead, the evidence reflected that he simply engaged in preparation for a bribery offense. Id. at 1150.

Hernandez does not say that its discussion of “offer” must be included in a jury charge. Nor has any case since; indeed, we have never cited Hernandez’s discussion of “offer.” But Colorado thinks he was enti-tied to an instruction including its language based on the principle that a court “abuses its discretion in denying a requested instruction if (1) the requested instruction is a substantively correct statement of the law; (2) the requested instruction is not substantially covered in the charge given to the jury; and (3) the omission of the instruction would seriously impair the defendant’s ability to present his defense.” United States v. Dixon, 185 F.3d 393, 403 (5th Cir. 1999). The government hammers away at another principle of our jury instruction cases: that “a district court does not err by giving a charge that tracks this • Circuit’s pattern jury instructions and that is a correct statement of the law.” United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009) (citing United States v. Turner, 960 F.2d 461, 464 (5th Cir. 1992)). The bribery instruction given to Colorado’s jury tracks the pattern jury charge, see Fifth Circuit Pattern Jury Instruction (Criminal) § 2.09A (2015), which we have approved, see United States v. Franco, 632 F.3d 880, 885 (5th Cir. 2011).

There is possible tension between these two principles we have repeatedly quoted. What if the pattern charge correctly states the law, but a party requests an additional instruction that is also an accurate description of the law?

Our recent reconciling of these principles in another bribery case is instructive. United States v. Richardson, 676 F.3d 491, 506-07 (5th Cir. 2012). Richardson wanted the jury charge to include a long definition of the word “corruptly” that was supported by United States v. Haas, 583 F.2d 216 (5th Cir. 1978). Id. at 507. So as Colorado does, he was requesting a supplement that found support in our caselaw. But when framing the issue, we stated, “[bjecause the district court’s instruction tracked this circuit’s pattern jury instruction, we need only determine whether the charge is a correct statement of the law.” Id. (emphasis supplied). It was thus of no moment in Richardson whether the defendant’s requested instruction was also accurate but more specific; the district court did not abuse its discretion because Richardson could not show that “the pattern jury instruction [was] an incorrect statement of the law.” Id. at 508.

The same is true here. Colorado identifies nothing incorrect about the instruction that was given. The terms “offer” and “promise” are not so technical or inscrutable that a definition was necessary; the terms appear to be within the common understanding of the jury such that no instruction on the meaning of the terms was required. See United States v. Chenault, 844 F.2d 1124, 1131 (5th Cir. 1988). Indeed, Hernandez is best read as voicing a paraphrase of the word “offer,” not a limiting definition of the term. Contrast United States v. Grissom, 645 F.2d 461, 469 (5th Cir.1981) (reversing conviction because instruction did not limit “intent to defraud” to fraud against the government). If it were otherwise and Hernandez had given the word a restricted legal meaning, one would expect us to have cited the case for that point of law in the many years since it was issued. Had we constricted the meaning of “offer,” Colorado could rightly argue that failing to define the word would allow the jury, following the word’s ordinary meaning, to convict on facts outside the statute’s prohibition. And when an instruction allows the jury to convict on innocent facts, the instruction is incorrect. See, e.g., United States v. Nelson, 791 F.2d 336, 337-38 (5th Cir. 1986). Yet this is all hypothetical, for we did not circumscribe the ordinary meaning of “offer” in Hernandez. In Hernandez, the alleged offer-—■ “they want to know if you can be bought, if you will change your testimony”—did not express “an ability and a desire to pay,” 731 F.2d at 1150, or, in the words of the dictionary, did not “declare one’s readiness or willingness” to pay a bribe, Webster’s Third New International Dictionary: Unabridged 1566 (2002) (defining offer).

Treating the district court’s use of the pattern charge as a safe harbor is also consistent with a trial court’s “substantial latitude in framing jury instructions.” Richardson, 676 F.3d at 506-07. And nothing prevented Colorado from arguing to the jury that the bribe was only discussed in a preliminary manner that did not amount to an actual offer. Indeed, that was a focus of his closing argument.

The judgment of the district court is AFFIRMED.

      . Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (“The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders.”).

      . Two cases address whether it is permissible for a grand jury in the transferee district to return a superseding indictment. State v. Alexander, 252 La. 564, 211 So.2d 650 (1968); Watkins v. United States, 54 S.W. 819 (Ind. Terr. 1900). Both allowed that practice but in doing so did not hold that a grand jury in the transferor district could not have amended the charges. See Alexander, 211 So.2d at 654-55; Watkins, 54 S.W. at 821. Even on the different question it considered, Alexander drew a vigorous dissent. 211 So.2d at 660 (Barham, J., dissenting). And Watkins relied on a unique Indian Territory statute that made superseding indictments akin to an entirely new charge as opposed to the traditional view that they do not displace the original indictment. See 54 S.W. at 821.

      . The outlier Kentucky decision has been distinguished by other courts on the ground that it does not reflect common law principles because it involved a Kentucky venue transfer statute providing that "a new indictment may be found, from time to time, by a grand jury of the county to which the removal [wa]s made.” Tucker, 224 N.W. at 881 (quoting Kentucky Statutes § 1117 (Barbour & Carroll, eds. 1894)); Alexander, 211 So.2d at 660 (Barham, J., dissenting).

      . Recognizing what we have said about the local nature of the grand jury, Colorado argues that his motion to transfer venue waived any right he had to be indicted only by a grand jury from the district where the alleged crime took place. But even if that motion waived more than just his Sixth Amendment vicinage right for trial, the waiver would not deprive the Austin grand jury of its authority to act. A waiver does not always have to be accepted. To illustrate, defendants may waive their Fifth Amendment right to face a felony charge only if the grand jury finds probable cause and proceed instead by information. But a defendant desiring to proceed by information cannot prevent the grand jury from investigating the crime and returning an indictment.

      . Unlike this case, Hernandez involved only a bribery charge, not a conspiracy to bribe. The latter, of course, does not require a completed offense. In any event, we find that the instruction with the Hernandez language was not required even for the substantive bribery offense.


source: Caselaw Access Project

author: STEPHEN A. HIGGINSON, Circuit Judge:

license: Public Domain

text:
    Ralph S. JANVEY, In His Capacity as Court-Appointed Receiver for The Stanford International Bank, Limited, et al, Plaintiff-Appellant Cross-Appellee v. DILLON GAGE, INCORPORATED OF DALLAS; Dillon Gage, Incorporated, Defendants-Appellees Cross-Appellants
    No. 15-11211 Consolidated w/16-10212
    United States Court of Appeals, Fifth Circuit.
    FILED May 5, 2017

      Kevin M. Sadler, Baker Botts, L.L.P., Palo Alto, CA, David Arlington, Stephanie Frederique Cagniart, Evan A. Young, Attorneys, Baker Botts, L.L.P., Austin, TX, for Plaintiff-Appellant Cross-Appellee.
    Jeffrey Scott Levinger, Levinger, P.C., Priya A. Bhaskar, Laura Fontaine, Orrin Lea Harrison, III, Michael Justin Lang, I, Esq., Attorney, Gruber Elrod Johansen Hail Shank, L.L.P., Dallas, TX, for Defendants-Appellees Cross-Appellants.
    Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

This case concerns more fallout from Allen Stanford’s Ponzi scheme. Plaintiff-Appellant Ralph Janvey (“Janvey”) is the court-appointed receiver tasked with mar-shalling and distributing the assets of the Stanford entities. This suit relates to Stanford Coins and Bullion (“SCB”), a coin and bullion company previously owned by Allen Stanford. SCB sold coins and metals to the public. Defendant-Appellee Dillon Gage Inc. of Dallas (“Dillon Gage”) is a wholesaler of metals, bullion, and coins and was SCB’s largest supplier.

Janvey alleges that six transfers from SCB to Dillon Gage were fraudulent transfers under the Texas Uniform Fraudulent Transfer Act (“TUFTA”) and should be returned to the receivership. Following trial, a jury disagreed, finding that the six transfers were not fraudulent. Dillon Gage then sought attorney’s fees, which the district court denied. Janvey appealed, challenging'the jury verdict and instructions; Dillon Gage cross-appealed, challenging the denial of the fee award. We AFFIRM.

I

For almost two decades, Allen Stanford and his co-conspirators perpetrated a mul-ti-billion-dollar Ponzi scheme using a global network of more than 130 entities. The Ponzi scheme sold fraudulent certificates of deposit to investors. Proceeds from investors were used to pay other investors, fund Allen Stanford’s lifestyle, and finance other Stanford entities.

One entity related to the scheme was SCB. SCB received capital contributions and loans from other Stanford entities. Indeed, until late 2008, SCB had a line of credit with Stanford International Bank. However, SCB did not sell Stanford certificates of deposit. Instead, SCB operated as an otherwise ordinary coin and bullion business, buying and selling coins and metals. It purchased coins and metals from wholesalers and resold them to retail customers at a markup. SCB ran its business operations through an operating account, that is, when SCB received customers’ money, it deposited the funds into SCB’s operating account, and the operating account was then used to pay SCB’s business expenses. SCB was led by its President Joseph Frisard and its Vice President of Operations Scott Terry. SCB was never profitable, although by 2009 its revenues were rising.

At all relevant times, Dillon Gage was managed by its President of the Metals Division Terry Hanlon and General Manager Ira Fritz. SCB became Dillon Gage’s customer in 2004. The relationship grew and by early 2009, Dillon Gage was SCB’s. largest wholesale supplier. SCB would place orders with Dillon Gage through Dillon Gage’s trading desk. Dillon Gage would then either supply the goods to SCB or ship the goods directly to SCB’s customers (called “drop-shipping”). SCB would then pay Dillon Gage for the orders, with payment usually due ten days.to two weeks after shipment. However, SCB was consistently late in its payments to Dillon Gage.

During this business relationship, Dillon Gage extended SCB a line of credit, which, by 2009, had grown to $2 million. In January 2009, SCB’s account balance with Dillon Gage had grown to about $2.3 million. During this time, Hanlon became increasingly concerned with the age and amount of SCB’s outstanding invoices, and in response, on January 20, 2009, he traveled to SCB’s headquarters to meet with Frisard. At the meeting, Frisard assured Hanlon that SCB had already mailed a payment to Dillon Gage and was anticipating a big order that could be used to pay off the rest of SCB’s balance. Frisard also showed Hanlon SCB’s offices; Hanlon observed significant inventory and a room full of salespeople taking customers’ orders.

As it turned out, the check that Frisard promised was actually only for $250,000. Concerned by the low payment, Hanlon called Scott Terry on January 22, 2009, seeking further payment. Hanlon told Terry that he was uncomfortable with SCB’s slow rate of payment and high balance and asked for an explanation. Terry explained that SCB was suffering from cash flow problems, in part because it had lost its line of credit with Stanford International Bank. Terry further explained that SCB was working on a big deal and that when it received payment, it could use the money to pay Dillon Gage. Terry suggested that if the big deal failed SCB could collect its unpaid accounts receivables, liquidate inventory, or seek additional capital from Stanford. Hanlon responded that Dillon Gage could not keep shipping SCB inventory until it was paid.

The “big deal” referenced by both Fri-sard and Terry was a deal with the PreWar Art Gallery (the “Gallery”). The Gallery wanted to purchase 101 gold bars from SCB for approximately $3 million (the “Gallery Deal”).

Soon after the January 22 phone call, Dillon Gage stopped shipping orders to SCB and its customers. This was not entirely out of the ordinary; Dillon Gage had halted shipments to SCB before. From January 23 until January 30, SCB made three payments to Dillon Gage, totaling approximately $1.26 million: $501,326.30 (January 23); $394,567.40 (January 27); and $368,491.51 (January 30).

On February 2, 2009, the Gallery placed its order with SCB for 101 gold bars, wiring $3,028,613 to SCB for the order. Frisard then ordered the gold bars from Dillon Gage and provided an upfront payment of approximately $3 million to Dillon Gage. Although the order was placed on February 2, the order did not need to be shipped to the Gallery until March 4.

Following SCB’s $3 million payment, Dillon Gage immediately began shipping SCB’s backlogged orders, applying the $3 million payment to the oldest invoices first. In total, Dillon Gage shipped $1,947,453.65 in coins and bullion to SCB or its customers in the time between when shipping resumed and when the receivership was imposed.

On February 6 and February 13, SCB made two further payments to Dillon Gage of $366,171.50 and $486,959.86, respectively. Following these payments, SCB had a credit balance with Dillon Gage of $1,069,355. Nonetheless, SCB still owed Dillon Gage more money to complete payment on the Gallery Deal.

On February 17, 2009, SCB was shut down by Janvey, the court-appointed receiver. At the time it was shut down, SCB had over $1 million in cash and $300,000-$400,000 in uncashed checks on hand. SCB’s management believed that the company had sufficient cash, or access to capital, to complete the Gallery Deal.

In September 2010, Janvey filed this lawsuit. He alleged that the following payments from SCB to Dillon Gage were fraudulent transfers under TUFTA and therefore should be returned to the receivership:

• January 23, 2009-$501,326.30
• January 27, 2009-$394,567.40
• January 30, 2009-$368,491.51
• February 2, 2009-$3,002,639.10
• February 6, 2009-$366,'171.50
• February 13, 2009-$486,959.86

The parties proceeded to trial in July 2015. The jury was asked two questions: (1) were the transfers from SCB to Dillon Gage fraudulent transfers?; and (2) did Dillon Gage accept the transfers from SCB in good faith?

At trial, both parties agreed that Dillon Gage applied the $3 million payment related to the Gallery Deal to its oldest debts with SCB. Both parties also presented significant evidence of SCB’s financial condition. Janvey’s expert, Karyl Van Tassel, opined that SCB was insolvent because it was generally not paying its bills as they became due, although she did not distinguish in her analysis between past due bills and general liabilities. Moreover, neither Janvey nor Van Tassel identified any specific debts owed by SCB to anyone other than Dillon Gage. Van Tassel further testified that SCB never generated a profit, had negative equity, and had more liabilities than available cash. However, Van Tassel did not testify that SCB’s liabilities were greater than its assets because she never valued SCB’s assets.

Dillon Gage introduced testimony concerning SCB’s finances from Frisard, Terry, and its industry expert, Michael Ful-jenz. Dillon Gage’s witnesses testified that SCB had significant non-cash assets including: inventory, uncashed checks, and uncollected accounts receivables. Dillon Gage’s witnesses also testified that businesses in the coin and bullion industry typically suffer from cash flow problems in the beginning of the calendar year because, among other reasons, most coin companies buy inventory in the beginning of the year.

The jury returned a verdict in favor of Dillon Gage, finding that none of the six transfers was fraudulent. The district court denied Janvey’s motion for judgment as a matter of'law. Following judgment, Dillon Gage filed a motion seeking attorney’s fees under TUFTA. The district court denied the motion. Janvey appeals the denial of his motion for judgment as a matter of law and Dillon Gage cross-appeals the denial of its motion for attorney’s fees.

II

Janvey raises two challenges to the jury verdict. First, he argues that a reasonable jury was required to find that SCB’s transfers to Dillon Gage were fraudulent. Second, he argues that the jury instructions were erroneous. We reject both challenges.

A

Janvey first argues that, as a matter of law, each of the challenged transfers was fraudulent. We review a district court’s denial of a motion for judgment as a matter of law de novo, applying the same standards as the district court. See, e.g., Ill. Cent. R.R. Co. v. Guy, 682 F.3d 381, 392-93 (5th Cir. 2012). Judgment as a matter of law is proper only when “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Abraham v. Alpha Chi Omega, 708 F.3d 614, 620 (5th Cir. 2013) (quoting Fed. R. Civ. P. 50(a)). “This will only occur if the facts and inferences point so strongly and overwhelmingly in the movant’s favor that jurors could not reasonably have reached a contrary verdict.” Id. (quoting Brown v. Sudduth, 675 F.3d 472, 477 (5th Cir. 2012)). “In evaluating such a motion, the court must consider all of the evidence in the light most favorable to the nonmovant, drawing all factual inferences in favor of the non-moving party, and leaving credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts to the jury.” Price v. Marathon Cheese Corp., 119 F.3d 330, 333 (5th Cir. 1997). “After a jury trial, [the] standard of review is especially deferential.” Abraham, 708 F.3d at 620 (citation omitted, alteration in original).

Janvey brought all of his claims under TUFTA. TUFTA pursues one overriding goal: “to protect creditors from being defrauded or left without recourse due to the actions of unscrupulous debtors.” KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 89 (Tex. 2015). To that end, a creditor may sue a third party that received a fraudulent transfer from the debtor and recover its losses by voiding that transaction. See In re IFS Fin. Corp., 669 F.3d 255, 261-62 (5th Cir. 2012). A transfer is fraudulent under TUFTA if it was made “with actual intent to hinder, delay, or defraud any creditor of the debtor.” Tex Bus. & Com. Code § 24.005(a)(1). A fraudulent transfer can be proven in two ways: directly or circumstantially. When direct evidence of fraudulent intent exists, as when a debtor “admits the fraud,” then “[ijntent ... can be decided as a matter of law.” BMG Music v. Martinez, 74 F.3d 87, 90 (5th Cir. 1996). But “[s]ince [this] intent ... is seldom susceptible of direct proof, courts have relied on badges of fraud,” eleven of which are listed in the statute, as circumstantial evidence of fraud. Uniform Fraudulent Transfer Act (“UFTA”), Prefatory Note; see also Tex. Bus. & Com. Code § 24.005(b).

1

Janvey first contends that he provided the jury with irrefutable direct evidence of fraud. He argues that SCB misappropriated the Gallery’s $3 million payment in order to pay down SCB’s old debts to Dillon Gage. Janvey contends that this misappropriation constitutes direct evidence of fraudulent intent because “a debtor acts with fraudulent intent when it misappropriates funds from one creditor to pay another, and when it disregards the substantial risk that its creditors will be hindered, delayed, or defrauded as a result.” That is, Janvey relies on the theory that there is direct evidence of fraud when a debtor uses Creditor A’s money to pay off its debts to Creditor B and the debtor knows, or must know, that “the natural consequence of its action” is that Creditor A will be hindered, delayed, or defrauded in the collection of its debts. See In re Sentinel Mgmt. Grp., Inc., 728 F.3d 660, 667 (7th Cir. 2013) (“Sentinel 7”).

However, the jury could have concluded that SCB did not disregard a substantial risk that the Gallery would go unpaid (here, not receive its gold bars) when SCB used the Gallery’s money to pay its antecedent debt to Dillon Gage. Specifically, the jury rationally could have concluded that SCB thought that it had sufficient assets to complete the Gallery deal without having to resort to the use of a new customers’ money. The jury was told that SCB’s revenues were rising— going from about $36 million in 2007 to $60 million in 2008. And, the jury heard evidence from which it could have inferred that this revenue growth would have continued. For example, in early 2009, SCB began a new national advertising campaign. From these facts, the jury could have inferred that, over time, SCB would have generated enough profit to pay down its trade creditor debt without needing to use new customer funds.

But the jury did not need to draw this inference because the jury also heard evidence suggesting that SCB had sufficient saleable inventory in the beginning of 2009 to complete the Gallery transaction, even without growing its business. In order to complete the Gallery Deal, SCB needed to pay Dillon Gage an additional $1.9 million by March 4, 2009. At the time the receivership began, SCB had over $1 million in cash and between $300,000 and $400,000 in uncashed checks on hand. In addition, SCB owned approximately $3 million worth of rare coins and approximately $4.6 to $4.9 million in total inventory. Dillon Gage’s industry expert testified that SCB could have easily liquidated its inventory to raise capital because the market for coins and bullion was rising in early 2009. SCB had additional assets that could have been sold to complete the Gallery Deal, such as approximately $1.3 to $1.5 million in unpaid accounts receivables and customer lists that, according to Dillon Gage’s industry expert, could be sold. Finally, SCB’s employees testified that SCB intended to complete, and could have completed, the Gallery Deal. Based on this evidence, the jury reasonably could have found that SCB could have raised sufficient capital to pay Dillon Gage to complete the Gallery Deal without using new customers’ money. Accordingly, the jury could have properly rejected Janvey’s direct evidence of fraud theory.

2

Janvey next argues that he provided the jury with significant circumstantial evidence of fraud. At trial, Janvey attempted to prove two badges of fraud: insolvency and incurrence of a substantial debt at the • time of the challenged transfers. See Tex. Bus. & Com. Code § 24.005(b)(9),' (10). Janvey proved one badge—incurrence of substantial debt at the time of the challenged transfers—but failed to prove insolvency as a matter of law.

Under TUFTA, it is a badge of fraud if “the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred.” Tex. Bus. & Com. Code § 24.005(b)(9). Insolvency can be proven in two ways: by showing that “the sum of the debtor’s debts is greater than all of the debtor’s assets at a fair valuation,” or by showing that the debtor “is generally not paying the debt- or’s debts as they become due.” Tex. Bus. & Comm. Code § 24.003(a), (b). Both parties focus on the second test. TUFTA provides that “[a] debtor who is generally not paying the debtor’s debts as they become due is presumed to be insolvent.” See Tex. Bus. & Com. Code § 24.003(b). Jan-vey argues that the trial evidence conclusively established that SCB was not generally paying its debts as they came due and was therefore presumptively insolvent under TUFTA.

“The question of insolvency is to be determined as of the time of the conveyance.” United States v. Fritz, No. SA-12-C-550-FB (HJB), 2014 WL 12540471, at *4 (W.D. Tex. Jan. 7, 2014), report and recommendation adopted, 2014 WL 12537176 (W.D. Tex. Feb. 24, 2014), aff'd, 608 Fed.Appx. 259 (5th Cir. 2015) (unpublished) (quoting Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25 (Tex. App.—Tyler 2000, pet. denied)). “[V]arious factors are relevant to determine whether a debtor’s payment of its debts shows insolvency.” Williams v. Hous. Plants & Garden World, Inc., 508 B.R. 19, 30-31 (S.D. Tex. 2014) (quoting In re Arriola Energy Corp., 74 B.R. 784, 790 (S.D. Tex. 1987)). “Among them are the number and amount of the unpaid debts in relation to the size of the debtor’s operation; the age and number of unpaid debts; the total amount of indebtedness; and the number of unpaid creditors[.]” Id. (citing Arriola Energy Corp., 74 B.R. at 790); accord Unif. Fraudulent Transfer Act § 2(b) & cmt. 2; ASARCO LLC v. Ams. Mining Corp., 396 B.R. 278, 402 (S.D. Tex. 2008) (looking to the same presumption under Delaware and New Jersey law and noting that “[t]he most commonly used factors are: (1) the number of debts; (2) the amount of delinquency; (3) the materiality of non-payment; and (4) the nature of the debtor’s conduct of its financial affairs”).

The jury heard evidence from which it could infer that SCB was generally paying its debts as they came due. Other than the bills owed to Dillon Gage, Janvey did not identify any specific hills that were due and that SCB did not pay. And even with regard to the debts owed to Dillon Gage, the jury heard conflicting evidence concerning whether SCB was generally paying Dillon Gage as its debts came due. On the one hand, the jury heard testimony indicating that, from its inception, SCB was “historically late paying [its] bills” to Dillon Gage and was a “slow-pay.” On the other hand, the jury heard that SCB “paid [its] bills every Friday,” and had no creditors who were not being paid. Courts interpreting TUFTA have concluded that evidence merely showing a significant debt and occasional late payments does not establish insolvency as a matter of law. See Williams v. Houston Plants & Garden World, Inc., 508 B.R. 11, 18 (S.D.Tex.2014) (rejecting summary judgment on the insolvency badge despite evidence showing that “during the relevant periods, [the transferor] was behind on payments to some of its creditors,” and evidence showing that “[the transferor] refinanced some debt that was due and incurred substantial overdraft fees in the year the challenged transfers began”); Basley v. Adoni Holdings, LLC, 373 S.W.3d 577, 584 (Tex.App.2012) (“[Creditors] merely proved [Debtor] was failing to pay the debt for which judgment had been taken and was delinquent on another debt. This evidence was insufficient to establish that [Debtor] was generally not paying her debts as they became due.”); In re Iridium Operating LLC, 373 B.R. 283, 343 (Bkrtcy.S.D.N.Y.2007) (“[T]he failure to make one $90 million interest payment one month prior to its bankruptcy filing does not, by itself, support a finding that Iridium was not paying its debts as they became due.”). Accordingly, the jury was not required to find that SCB was insolvent at the time of the transfers.

3

Viewing both the direct and circumstantial evidence of fraud as a whole we conclude that a rational jury could have found that SCB did not act with fraudulent intent. Janvey only established one badge of fraud—incurrence of a substantial debt close in time to the transfers—as a matter of law. Against this single badge of fraud, the jury heard significant evidence from which it could have inferred that SCB did not make the transfers with fraudulent intent. Accordingly, we affirm the jury verdict.

B

Janvey next argues that a new trial is needed because the jury instructions were misleading and erroneous. Janvey raises four challenges to the jury instructions. We conclude that each is without merit.

Jury instructions are reviewed for abuse of discretion. Jowers v. Lincoln Elec. Co., 617 F.3d 346, 352 (5th Cir. 2010). Instructions that hinge on a question of statutory construction are reviewed de novo. GE Capital, 754 F.3d at 302. Reversal is appropriate when the “charge as a whole leaves [the court] with substantial and ineradicable doubt whether the jury [was] properly guided in its deliberations” and the challenged instructions, separately or collectively, “affected the outcome of the case.” Jowers, 617 F.3d at 352 (quoting Bender v. Brumley, 1 F.3d 271, 276-77 (5th Cir. 1993)). Similarly, when a challenge involves the trial court’s failure to give a requested jury instruction, the court will find reversible error only if the requested instruction “1) was a substantially correct statement of law, 2) was not substantially covered in the charge as a whole, and 3) concerned an important point in the trial such that the failure to instruct the jury on the issue seriously impaired the [party’s] ability to present a given [claim].” Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 505 (5th Cir. 2012) (citation omitted).

1

Janvey first argues that the jury instructions were erroneous because they failed to define the word “intent.” For the purpose of determining whether SCB’s transfers to Dillon Gage were fraudulent, the district court instructed the jury that “[a] transfer made by SCB is fraudulent if SCB made the transfer with actual intent to hinder, delay, or defraud any creditor of SCB.” Janvey requested this additional instruction:

[I]f you find that SCB disregarded the substantial certainty that SCB’s creditors would be hindered, delayed, or defrauded by the transfers to Dillon Gage, then the transfers were made with actual intent to hinder, delay, or defraud those creditors. SCB acted with such disregard if, at the time that it made the transfers to Dillon Gage, SCB knew that it could not pay existing creditors.

Janvey argues that “the proposed instruction would have provided a critical clarification” because the legal definition of intent is broader than the common-sense meaning of the term. Specifically, Janvey argues that the legal definition of intent, unlike the colloquial definition, includes cases in which a party “disregarded the substantial risk or certainty that a particular consequence would occur” even if the party did not desire the result.

As a general matter, “[t]erms which are reasonably within the common understanding of juries, and which are not technical or ambiguous, need not be defined in the trial court’s charge.” United States v. Anderton, 629 F.2d 1044, 1048-49 (5th Cir. 1980). Nonetheless, “[w]hen the instruction uses a term of legal significance, its meaning must be explained, especially when there is a request for clarifying instructions.” Id. at 1049.

Texas’s model TUFTA jury instructions do not define intent. See Texas Pattern Jury Instruction, Business, Consumer, Insurance & Employment § 105.25 (2016). And Texas’s approach is consistent with the model jury instructions from other states that have adopted the UFTA. See, e.g., Alabama Pattern Jury Instructions § 18.22 (3d ed. 2015); California Model Jury Instruction § 4200 (2016); North Carolina Civil Pattern Jury Instruction § 814.50 (2015). Moreover, in federal cases when intent is an element, we too have approved jury instructions that have left the term undefined. See, e.g., United States v. Sanchez-Sotelo, 8 F.3d 202, 212 (5th Cir. 1993). Accordingly, we conclude that the district court did not err by declining to define intent.

In any event, failure to give Jan-vey’s proposed instruction did not impair his presentation of his claim. Although the jury was instructed to consider whether SCB acted with “actual intent,” the charge went on to instruct the jury that “actual intent” could be determined through consideration of, among other factors, the badges of fraud. And, the badges of fraud list objective measures of the debtor’s assets, liabilities, and conduct as being probative of intent. Accordingly, under the instructions as given, the jury was told to consider not just the state of mind of SCB’s principals in determining intent but also the objective facts surrounding the challenged transfers. The instructions therefore allowed Janvey to argue his “substantial-certainty” theory to the jury and signaled to the jury that they should take the theory seriously. Thus, the jury charge was not reversible error. See Baisden, 693 F.3d at 504-05.

2

Janvey next argues that “[t]he instructions also improperly increased the Receiver’s burden of proof because they did not specify that the Receiver did not have to prove most or all of TUFTA’s eleven badges of fraud to show SCB’s fraudulent intent.” Specifically, Janvey complains that by listing all eleven badges of fraud in the jury instructions, but not instructing the jury that all eleven need not be found to find fraudulent intent, the jury could have been misled.

Contrary to Janvey’s claim, the jury instruction as given communicated to the jury that not all eleven badges needed to be found. The district court instructed the jury that “[i]n determining actual intent, consideration may be given, among other factors, to” the badges of fraud. This instruction closely mirrors the Texas Pattern Instruction. See Texas Pattern Jury Instruction, Business, Consumer, Insurance & Employment § 105.25 (2016) (“In determining actual intent, you may consider, among other factors [the badges of fraud].”). The use of the term “may” instructed the jury that they could, but did not have to, consider any of the badges of fraud. Bryan Garner, Black’s Law Dictionary 1068 (9th ed. 2009) (defining “may” as “to be permitted to”). Similarly, the use of the phrase “among other factors” instructed the jury that the badges of fraud were a nonexhaustive list. The charge therefore properly instructed the jury that they could, but were not required to, consider the badges of fraud and that they could also consider any other relevant factor.

3

Janvey next argues that the district court’s instruction on debtor preferences was erroneous. The district court instructed the jury that “[a] debtor’s mere intention to prefer one creditor over another does not indicate fraudulent intent, provided that the creditor does not receive more than is reasonably necessary to pay its debts.” Janvey contends that the district court’s instruction was “prejudicial ... because it incorrectly suggested that preferential transfers and fraudulent transfers are mutually exclusive.”

The instruction, however, was a correct statement of Texas law. Under Texas law, “a debtor has the right to prefer his obligation to one creditor over an obligation to another creditor.” Englert v. Englert, 881 S.W.2d 517, 518 (Tex. App.—Amarillo 1994, no writ); see also Quinn v. Dwpree, 157 Tex. 441, 303 S.W.2d 769, 774 (1957) (“[E]very debtor has the right to pay or secure one or more of his just debts with any property he has, provided that no m[or]e property is transferred than is reasonably necessary to pay or secure the debt. A mere intention to prefer one creditor over the other thus will not vitiate the transaction, and the conveyance or security instrument will not be h[el]d void as to creditors unless it was executed with fraudulent intent or amounts to a fraud in law.”) (alterations in original); Jackson Law Office, 37 S.W.3d at 25 (“The general rule is that a debtor has the right to prefer his obligation to one creditor over an obligation to another creditor.”). Texas’s preference law “remain[s] valid notwithstanding the subsequent enactment of the TUFTA....” Alexander v. Holden Bus. Forms, Inc., No. 4:08-CV-614-Y, 2009 WL 2176582, at *7 (N.D. Tex. July 20, 2009). Accordingly, “[a] debtor in Texas has the right to prefer an obligation to one creditor over an obligation to another creditor, as long as the debtor’s preference is devoid of fraudulent intent.”' Geneva Corp. Fin., Inc. v. Waddell, 251 F.3d 157, 2001 WL 300795, at *2 (5th Cir. 2001) (unpublished); see also Janvey v. Golf Channel, Inc., 792 F.3d 539, 543 (5th Cir. 2015) (noting that the “right to prefer does not extend to transfers made in fraud of the rights of the other creditors” (citing Englerb, 881 S.W.2d at 518)).

The district court instructed the jury that a debtor’s “mere intention” to prefer one creditor over another creditor “does not indicate fraudulent intent.” The use of the word “mere” is critical. “Mere” means “being nothing more than.” Merriam-Webster’s Collegiate Dictionary 726 (10th ed. 2002). The instruction thus told the jury that a debtor’s intention to prefer a specific creditor, standing alone, is not fraudulent. That is an accurate summary of Texas law. See Englert, 881 S.W.2d at 518 (noting that fraudulent intent must be affirmatively shown and that the debtor’s mere knowledge that there were other creditors who were not receiving payment was insufficient to show fraudulent intent).

Janvey argues that even if the instruction was a technically correct statement of law, it was misleading “because it suggested that as long as SCB made a transfer with the intent of satisfying one of its creditors—in this ease, Dillon Gage— then that transfer could never be avoidable under TUFTA.” But the instruction does not suggest that a preferential transfer can never be fraudulent. Instead, it says that a “mere intention” does not “indicate” fraudulent intent. The word “mere” alerted the jury that the instruction referred to preferences standing alone, not preferences in conjunction with other indicators of fraud. Moreover, the word “indicate” told the jury that the instruction dealt with evidentiary conclusions that could be drawn from the debtor’s preference. See Merriam-Webster’s Collegiate Dictionary 590 (10th ed. 2002) (defining “indicate” as “to be a sign, symptom, or index of’). Taken together, the instruction informed the jury that a debtor’s intent to prefer one creditor over another was not evidence of fraud. It did not instruct the jury that a debtor’s intent to prefer one creditor insulated the debtor from fraud.

4

Finally, Janvey objects to the district court’s definition of assets. The parties’ dispute over the “assets” instruction centers on Section 24.003 of TUFTA, which defines insolvency. Section 24.003(a) provides that “[a] debtor is insolvent if the sum of the debtor’s debts is greater than all of the debtor’s assets at a fair valuation.” Tex. Bus. & Com. Code § 24.003(a). Section 24.003(d) excludes specific kinds of assets from the calculation of assets prescribed by Section 24.003(a): “[a]ssets under this section do not include property that has been transferred, concealed, or removed with intent to hinder, delay, or defraud creditors or that has been transferred in a manner making the transfer voidable under this chapter.” Tex. Bus. <& Com. Code § 24.003(d).

The district court instructed the jury:

A debtor is insolvent if the sum of the debtor’s debts is greater than all of the debtor’s assets at a fair valuation.... Assets under this section do not include property that has been transferred, concealed, or removed with intent to hinder, delay, or defraud creditors or that has been transferred in a manner making the transfer voidable.
A transfer made by the Stanford Ponzi scheme to SCB is presumed to be voidable, unless the transfer is taken in good faith and for reasonably equivalent value.

Janvey objects to the second paragraph of the instruction. He argues that the instruction was a misstatement of law because it allowed the jury to count money transferred from the Stanford Ponzi scheme to SCB as SCB’s assets.

Even assuming that the district court erred in giving the instruction, which we doubt, the error was harmless. We will remand to correct a flawed jury instruction only if the error “affected the outcome of the case.” Jowers, 617 F.3d at 352 (quoting Bender, 1 F.3d at 276); see also Rubinstein v. Admins. of Tulane Educ. Fund, 218 F.3d 392, 404 (5th Cir. 2000) (“Further, and importantly to this case, review of jury instructions is for harmful error. Even if an instruction erroneously states the applicable law or provides insufficient guidance, this Court will not disturb the judgment unless the error could have affected the outcome of the trial.”).

As Janvey himself recognizes, the issue of which of SCB’s assets count as “assets” under Section 24.003(d) is only relevant to determining whether SCB’s debts were greater than its assets at a fair valuation, which is one of two ways to show insolvency under TUFTA (the other being general failure to pay debts as they become due). See Tex. Bus. & Com. Code § 24.003. However, Janvey did not attempt to prove SCB’s insolvency through a comparison of SCB’s debts and assets. Janvey’s expert testified that she did not attempt to value SCB’s debts or assets. In fact, Janvey’s expert testified that she had not even attempted to determine what SCB’s assets were. The district court noted that “[o]n the issue about insolvency and debts greater than all assets at fair valuation, I agree with [Dillon Gage] that no single expert witness testified to that and that plaintiffs expert disclaimed any opinion on the definition of insolvency.” Moreover, no witness gave a complete accounting of SCB’s debts and assets. And we have held that balance-sheet insolvency cannot be determined when evidence of the debtor’s assets is not introduced. Lamar Haddox, 40 F.3d at 121-22. Thus, any miscalculation of SCB’s assets could not have led to a different outcome on the insolvency badge because no party has argued (even on appeal) that SCB was balance-sheet insolvent or offered evidence showing SCB’s full assets and debts at a fair valuation. We conclude that any error with respect to the assets instruction was harmless.

Ill

We now turn to Dillon Gage’s cross-appeal concerning attorney’s fees. Following trial, Dillon Gage requested an award of $278,603 in attorney’s fees. The district court denied the motion, concluding that Janvey’s claims “were not frivolous, unreasonable, or without foundation[,]” that the litigation represented Janvey’s “most likely avenue by which he can fulfill his goal of maximizing recovery to make whole the Stanford Ponzi scheme’s defrauded investors[,]” and that “an award of attorney’s fees for Dillon Gage would not be equitable and just.”

This court reviews awards or denials of attorney’s fees for abuse of discretion; factual findings supporting a fee award are reviewed for clear error, and legal conclusions underlying a fee award are reviewed de novo. Dearmore v. City of Garland, 519 F.3d 517, 520 (5th Cir. 2008). The standard of review is substantially the same under Texas law. See Shaw v. Cty. of Dallas, 251 S.W.3d 165, 171 (Tex. App.—Dallas 2008, pet. denied) (“We will reverse a trial court’s ruling on a request for attorney’s fees under [a discretionary fee statute] only if the court’s decision is arbitrary, unreasonable, and without regard to guiding legal principles.”).

TUFTA provides that “the court may award costs and reasonable attorney’s fees as are equitable and just.” Tex. Bus. & Com. Code § 24.013. “This provision of TUFTA gives the trial court the sound discretion to award attorney’s fees based on the evidence the trial court heard.” Walker v. Anderson, 232 S.W.3d 899, 919 (Tex. App.—Dallas 2007, no pet.). “The Court’s exercise of this discretion is subject to the following limitations: any fees awarded must be reasonable and necessary, and must also be equitable and just.” Janvey v. Romero, No. 3:11-CV-0297-N, 2015 WL 11017950, at *1 (N.D. Tex. Sept. 22, 2015) (citing Qui Phuoc Ho v. MacArthur Ranch, LLC, No. 05-14-00741-CV, 2015 WL 5093273, at *10 (Tex. App.—Dallas Aug. 28, 2015, pet. denied)). A number of factors are relevant to determining whether a fee award is “equitable and just” under TUFTA, including: (1) whether the case involved egregious conduct, In re Pace, 456 B.R. 253, 283 (Bankr. W.D. Tex. 2011); (2) whether an award of fees accomplishes the goals of TUFTA, In re Edwards, 537 B.R. 797, 806 (Bankr. S.D. Tex. 2015); (3) the evidence heard by the trial court, Citizens Nat. Bank of Tex. v. NXS Const., Inc., 387 S.W.3d 74, 87 (Tex. App.—Houston [14th Dist.] 2012, no pet.); and (4) “evidence of bad faith, vexation, wantonness, oppression, or harassment relating to the filing or the maintenance of this action[,]” RFAR Grp., LLC v. Epiar, Inc., No. 11-CV-3432, 2013 WL 1743880, at *3 (N.D. Tex. Jan. 9, 2013), report and recommendation adopted, 3:11-CV-3432-L, 2013 WL 1748619 (N.D. Tex. Apr. 23, 2013).

Dillon Gage does not assert that the district court relied on improper considerations when it denied the fee request; instead, it contends that the district court impermissibly placed a higher burden on prevailing defendants than prevailing plaintiffs by focusing on the frivolousness of Janvey’s claim here and by not focusing on the frivolousness of the defenses in other cases in which the receiver prevailed. However, nothing in the district court’s order suggests that it treated Dillon Gage differently merely because it was a prevailing defendant. The closest the district court came to signaling a different standard between prevailing plaintiffs and defendants is its statement that this case “and other similar claims” represented the Receiver’s best chance at maximizing his recovery. But, even that statement does not insist that all prevailing TUFTA plaintiffs must be awarded fees. Instead, read in context, the district court was saying that the goals of the receivership are best served when the receiver brings claims similar to those brought in this litigation— namely non-frivolous claims. Moreover, Dillon Gage’s contention that Romero, 2015 WL 11017950, demonstrates unequal treatment is without merit. In Romero, the district court awarded fees to a prevailing receiver. See id. at *3-4. Dillon Gage argues that in Romero “the court held that it would always be ‘equitable and just’ to award,fees to a receiver who prevailed at trial in view of a receivership’s ‘goals and purposes.’” But that simply is not what Romero says. Instead, the district court in Romero found that a fee award was “equitable, just, and reasonable based on the evidence” including “the case’s outcome and the receivership’s goals and purposes.” Id. at *2-3. Nowhere did the district court say that prevailing receivers must always recover. Id. Accordingly, we hold that the district court did not apply the wrong standard in assessing Dillon Gage’s fee request.

We AFFIRM the jury verdict. We AFFIRM the district court’s order denying attorney’s fees.

      . As a preliminary matter, Dillon Gage argues that Janvey does not have standing to assert its fraud claim because, Dillon Gage claims, the fraud claim is brought on behalf of the Gallery. "[This Court] review[s] questions of statutory standing de novo.” Janvey v. Brown, 767 F.3d 430, 437 (5th Cir. 2014). "[A] federal equity receiver has standing to assert only the claims of the entities in receivership, and not the claims of the entities' investor-creditors.” Janvey v. Democratic Senatorial Campaign Comm., Inc., 712 F.3d 185, 190 (5th Cir. 2013). Here, Janvey is not bringing a common-law fraud claim on behalf of the Gallery. Instead, he is bringing a statutory TUFTA claim on behalf of SCB—an entity under his receivership. Id. at 192-93 (looking to the claims asserted in the complaint to determine what claims were asserted by the receiver). Janvey has standing to bring a TUFTA claim on behalf of a Stanford entity. Id. at 192 ("[W]e conclude that the Receiver has standing to assert the claims of [a Stanford entity], and any other Stanford entity in receivership, against the [defendants] to recover the contributions made to them without reasonably equivalent value by the Stanford Ponzi operation.”); see also Janvey v. Suarez, 978 F.Supp.2d 685, 697-98 (N.D. Tex. 2013). Thus, Janvey has standing to bring these TUF-TA claims on behalf of SCB.

      . The mere fact that SCB used money from the Gallery to pay its antecedent expenses is not per se fraudulent. SCB would have upheld its end of the bargain with the Gallery if it delivered gold on March 4, regardless of which specific money SCB used to complete the deal. After all, money is fungible. The fact that the Gallery may have preferred that SCB segregate its money does not indicate fraud. See Quadrant Structured Prods. Co., Ltd. v. Vertin, No. CV 6990-VCL, 2015 WL 6157759, at *20 (Del. Ch. Oct. 20, 2015), aff'd, No. 210, 2016, 2016 WL 6438209 (Del. Oct. 31, 2016).

      . Janvey relies primarily on two cases to support its direct evidence of fraud theory: Sentinel I and GE Capital Commercial, Inc. v. Worthington National Bank, 754 F.3d 297 (5th Cir. 2014). Neither case supports Jan-vey’s argument on this factual record, because a debtor does not act with fraudulent intent when it incurs a new debt so long as it has a reasonable expectation that it can pay that debt off. See, e.g., Vertin, 2015 WL 6157759, at *19. That is, because the jury could have found that SCB reasonably believed that it could complete the Gallery deal without churning funds from new customers to pay old debts, the cases Janvey cites are inapposite. In both Sentinel I and GE Capital the debtor could not have reasonably believed that it could make payment on the debts it incurred. See Sentinel I, 728 F.3d at 667 (noting that the debtor must have known that the “natural consequence of its actions” was to deny its creditors repayment); GE Capital, 754 F.3d at 300 (noting that the alleged fraudster took the creditor’s money for his own purposes, outside the scope of the debtor's business).

      . The challenged transfers occurred between January 23 and February 13, 2009. Janvey argues that those' transfers occurred shortly before or after an incurrence of substantial debt because SCB increased its trade-creditor debt by over $2 million in early 2009 and SCB incurred an additional approximately $3 million debt on February 2, 2009 when it took payment from the Gallery (because at that point, SCB owed gold to the Gallery). Dillon Gage does not meaningfully contest this analysis.

      . At trial, Janvey did not rely on the first test of insolvency, called "balance-sheet insolvency.” Here too, Janvey does not attempt to prove balance-sheet insolvency. In any event, because Janvey did not attempt to value all of SCB’s assets, there is no way to conduct a complete analysis of balance-sheet insolvency. See In re Lamar Haddox Contractor, Inc., 40 F.3d 118, 121-22 (5th Cir. 1994) (reversing a finding of insolvency because the district court heard no evidence regarding the value . of the debtor’s assets).


author: EDWARD C. PRADO, Circuit Judge:

text:
    In the MATTER OF Carl J. SELENBERG, Debtor. Carl J. Selenberg, Appellant, v. Dianne Bates, Appellee.
    No. 16-30649
    United States Court of Appeals, Fifth Circuit.
    FILED May 8, 2017

      Thomas E. Schafer, III, Bankruptcy Counsel, Schafer & Schafer, Orleans, LA, for Appellant.
    Jacques F. Bezou, Jr., Rachel Thyre Anderson, Bezou Law Firm, Covington, LA, for Appellee.
    Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

This appeal involves a bankruptcy dispute between Debtor and Appellant Carl J. Selenberg and Appellee Dianne P. Bates. The bankruptcy court held that a promissory note Selenberg gave to Bates was a nondisehargeable debt under 11 U.S.C. § 523(a)(2)(A). The district court affirmed. On appeal, Selenberg argues that the bankruptcy court erred in concluding that the requirements for nondischarge-ability under § 523(a)(2)(A) were met. We AFFIRM.

I. BACKGROUND

In 2008, Bates was seriously injured in an accident. Bates retained an attorney, Robert Faucheux, to represent her in bringing a personal injury lawsuit, but Faucheux failed to file the suit before the prescriptive period had run. Bates then retained another attorney, Selenberg, to represent her in bringing a malpractice claim against Faucheux. But in another unfortunate series of events, Selenberg failed to properly file Bates’s malpractice suit against Faucheux before the prescriptive period had run, and the case was ultimately dismissed.

In early December 2011, Selenberg informed Bates that her case had been dismissed, and he told her that he had no malpractice insurance and no money with which to compensate her. On December 15, 2011, Selenberg met with Bates to discuss her potential malpractice claim against him. He only agreed to this meeting after Bates assured him that she did not intend to hire another attorney. Selen-berg offered to give Bates a promissory note in the amount of $275,000 plus attorneys’ fees of up to 25% of the value of the note. He explained that one of his cases might pay out in the future and that he might be able to compensate Bates for her loss at that point. According to Selenberg, Bates would have five years to file suit to collect on the note, whereas she would only have one year to bring a malpractice claim against him. Selenberg also told Bates that if she filed an attorney disciplinary complaint against him, she would never recover anything from him. Bates accepted the offer, and shortly thereafter, Selenberg sent her the promissory note.

Selenberg never made any payments on the note. On June 19, 2012, Bates filed a disciplinary complaint against Selenberg with the Louisiana Office of Disciplinary Counsel. On November 19, 2013, almost two years after she received the promissory note from Selenberg, Bates filed suit to collect on the note in Louisiana state court. At that point, the prescription period for her malpractice claim against Selenberg had run. On February 25, 2014, Selenberg filed for Chapter 7 bankruptcy, staying the state court case. Bates then filed this adversary proceeding seeking to have the promissory note declared nondischargeable under 11 U.S.C. § 523(a)(2)(A)-(B). Following a bench trial, the bankruptcy court held that the debt was nondischargeable under § 523(a)(2)(A). The district court affirmed, and Selenberg timely appealed.

II. STANDARD OF REVIEW

‘When a court of appeals reviews the decision of a district court, sitting as an appellate court, it applies the same standards of review to the bankruptcy court’s findings of fact and conclusions of law as applied by the district court.” In re Jacobsen, 609 F.3d 647, 652 (5th Cir. 2010) (quoting Kennedy v. MindPrint (In re ProEducation Int’l, Inc.), 587 F.3d 296, 299 (5th Cir. 2009)). “Accordingly, we review conclusions of law de novo and findings of fact for clear error.” In re Ritz, 787 F.3d 312, 315 (5th Cir. 2015), rev’d and remanded on other grounds sub nom. Husky Int’l Elecs., Inc. v. Ritz, — U.S. -, 136 S.Ct. 1581, 194 L.Ed.2d 655 (2016). “Under a clear error standard, this court will reverse only if, on the entire evidence, we are left with the definite and firm conviction that a mistake has been made.” In re Am. Hous. Found., 785 F.3d 143, 152 (5th Cir. 2015) (quoting Morrison v. W. Builders of Amarillo, Inc. (In re Morrison), 555 F.3d 473, 480 (5th Cir. 2009)). In reviewing the bankruptcy court’s findings of fact, we must also bear in mind that “the standard of proof for the dis-chargeability exceptions in 11 U.S.C. § 523(a) is the ordinary preponderance-of-the-evidence standard.” Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).

III. DISCUSSION

Section 523(a)(2)(A) provides that an individual debtor will not be discharged “from any debt ... for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by ... false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.” The bankruptcy court found that when Selenberg gave Bates the promissory note, the parties entered into an “agreement or settlement that bought [Selenberg] almost two years of time without being sued by Mrs. Bates.” The court also held that Selenberg had a duty under Louisiana Rule of Professional Responsibility 1.8(h) to inform Bates of the desirability of seeking independent legal counsel before entering into this agreement. According to the bankruptcy court, by failing to disclose this information to Bates, Sel-enberg engaged in actual fraud within the meaning of § 523(a)(2)(A). Selenberg appears to make two basic contentions on appeal: (1) he did not receive an extension of credit from Bates; and (2) he did not use actual fraud to obtain any such extension of credit.

A. Extension of Credit

Selenberg first argues that he did not receive an extension of credit from Bates. Courts have stated that “[a]n extension, within the meaning of § 523(a)(2), is ‘an indulgence by a creditor giving his debtor further time to pay an existing debt.’ ” In re Gerlach, 897 F.2d 1048, 1050 (10th Cir. 1990) (quoting Takeuchi Mfg. (U.S.), Ltd. v. Fields (In re Fields), 44 B.R. 322, 329 (Bankr. S.D. Fla. 1984)); accord In re Rollins, No. 06-10549, 2007 WL 2319778, at *6 (Bankr. E.D. La. Aug. 10, 2007). In other words, the Bankruptcy Code “protects the creditor who is deceived into forbearing collection efforts.” In re Marx, 138 B.R. 633, 636 (Bankr. M.D. Fla. 1992); accord In re Gerlach, 897 F.2d at 1050; In re Rollins, 2007 WL 2319778, at *6.

In Marx, after a creditor demanded that a delinquent account be brought current, the debtor gave the creditor “a promissory note secured by a mortgage on commercial property” owned by the debt- or. 138 B.R. at 635. In exchange for the note, the creditor “agreed not to take legal action to collect [the debtor’s] account and agreed to extend additional credit.” Id. The district court in that case concluded that the creditor had received an extension of credit within the meaning of § 523(a) when the debtor executed the promissory note. Id. at 636-37. Similarly, in Gerlach, an owner of a John Deere dealership arranged for various parties to enter sham purchase contracts for equipment. 897 F.2d at 1049. Though the contracts were ultimately rejected by John Deere, the dealership received temporary credit for the sales against the dealership’s debts to John Deere. Id. The Tenth Circuit held that each contract resulted in an extension of credit under § 523(a) because the “fraudulent contract had its intended effect of giving the dealership more time in which to pay the amount of the ... credit.” Id. at 1050.

Likewise, in the instant case, the promissory note that Selenberg executed had its intended effect of giving him more time to pay. Selenberg contends that he gave the promissory note to Bates as an “option”—Bates could file a malpractice suit against him within one year, or she could wait up to five years to collect on the promissory note. However, the bankruptcy court found that Selenberg gave Bates the promissory note in order to induce her to forego any attempts to pursue a malpractice claim against him. This was supported by Selenberg’s testimony that he gave Bates the promissory note to “facilitate the chance of [his] obtaining some money to pay her by extending the time that she would have to file suit.” Accordingly, we hold that Selenberg received an extension of credit from Bates when she agreed to accept the promissory note.

B. Actual Fraud

Selenberg also argues that the bankruptcy and district courts erred in concluding that the extension of credit was obtained by actual fraud. This Court has stated that actual fraud may be proven by showing:

(1) the debtor made representations; (2) at the time they were made the debtor knew they were false; (3) the debtor made the representations with the intention and purpose to deceive the creditor; (4) that the creditor relied on such representations; and (5) that the creditor sustained losses as a proximate result of the representations.

In re Ritz, 787 F.3d at 319 (emphasis removed) (quoting RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1293 (5th Cir. 1995)). Selenberg contends that (1) he did not make any false representations, (2) he did not intend to deceive Bates, and (3) Bates did not sustain any losses as a proximate result of his representations.

2. False Representation

Selenberg argues that he did not make any false representations to Bates. For one, he notes that he accurately stated that he had no funds or assets to pay Bates. But the bankruptcy court based its decision on Selenberg’s failure to disclose material information, not on overt statements he made. This Court and others “have overwhelmingly held that a debtor’s silence regarding a material fact can constitute a false representation actionable under section 523(a)(2)(A).” In re Van Horne, 823 F.2d 1285, 1288 (8th Cir. 1987) (collecting cases), abrogated on other grounds by Grogan, 498 U.S. at 291, 111 S.Ct. 654; accord In re Mercer, 246 F.3d 391, 404 (5th Cir. 2001). “When one has a duty to speak, both concealment and silence can constitute fraudulent misrepresentation; an overt act is not required.” In re Mercer, 246 F.3d at 404.

The bankruptcy court found that Selenberg was Bates’s attorney, and “as such, he was required to abide by the Louisiana Rules of Professional Conduct.” Rule 1.8(h)(2) provides that a lawyer shall not “settle” an actual or potential malpractice claim “with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.” The bankruptcy court found that Selenberg “concocted [an] agreement or settlement that bought him almost two years of time without being sued by Mrs. Bates.” Because there was “absolutely no evidence that [Selenberg] ever advised Mrs. Bates, either orally or in writing, to seek independent counsel” prior to entering this agreement, the court held that Selenberg failed to fulfill his duty to disclose under Rule 1.8(h) and thereby made “a false representation for purposes of § 523(a)(2).”

The bankruptcy court’s approach is consistent with cases from other circuits. In one case, an attorney received construction services from a client and later gave the client a promissory note for the amount owed. In re Young, 91 F.3d 1367, 1370 (10th Cir. 1996). The Tenth Circuit held that-the attorney made false representations under § 523(a)(2)(A) by failing to inform the client of “information that the New Mexico Rules of Professional Conduct required him to disclose,” including “the potential conflicts of interest involved” in the transaction. Id. at 1373-75. In another case, an attorney borrowed money from his client without advising' the client of “the adverse nature of their relationship” or the client’s “right to seek independent legal advice.” In re Tallant, 218 B.R. 58, 61, 65 (B.A.P. 9th Cir. 1998). Because this conduct violated California’s rules of professional responsibility and the attorney’s fiduciary responsibilities to his client, the bankruptcy appellate panel held that the attorney “misrepresented the legal protections afforded” to the client and thereby made a “false representation” under § 523(a)(2)(A). Id. at 65-66.

Selenberg argues that he did not violate Rule 1.8(h)(2) because he did not settle the malpractice claim with Bates. He contends that the promissory note simply gave Bates an additional means of recovering from him. It is true that both Selenberg and Bates testified during trial that they never signed a formal settlement agreement. However, evidence in the record supports a finding that Selenberg and Bates effectively settled the malpractice claim. In the letter notifying Bates that her case was dismissed, Selenberg stated, “I am trying to come up with an idea so that I can pay you the value of the case.” Bates later testified that during her meeting with Selenberg, they discussed “what went wrong, what happened,” and “what was he going to do” to “compensate [her] for [her] lost wages, the pain and suffering, the medication, the hospital bills.” Sel-enberg also advised Bates that it was in her best interest to accept the promissory note and that the promissory note would place her in a better position than a malpractice suit.

After considering these facts, we conclude that the bankruptcy court did not clearly err in finding that the parties effectively settled the malpractice claim. Moreover, the district court was correct in concluding that Selenberg had an ethical duty to advise Bates in writing of the desirability of seeking independent legal counsel before settling the malpractice claim. He did not do so. Thus, we hold that Selen-berg violated Rule 1.8(h)(2) and thereby made a false representation under § 523(a)(2)(A).

2. Intent to Deceive

Selenberg next contends that any false representations were not made with the intent and purpose to deceive Bates. “An intent to deceive may be inferred from ‘reckless disregard for the truth or falsity of a statement combined with the sheer magnitude of the resultant misrepresentation.’ ” In re Acosta, 406 F.3d 367, 373 (5th Cir. 2005) (quoting In re Norris, 70 F.3d 27, 30 n.12 (5th Cir. 1995)), abrogated on other grounds by Ritz, 136 S.Ct. at 1581. After weighing the evidence, the bankruptcy court concluded that Selenberg’s “main concern was to convince Mrs. Bates that taking the promissory note was her only option” and that his “primary intent was to buy some time and to keep himself out of trouble.”

Selenberg argues that he clearly did not have the requisite intent to deceive because he was truthful in telling Bates that he had no assets with which to pay her. We find this argument unpersuasive. Although Selenberg was truthful with Bates about his financial situation at the time, he did not advise her of the desirability of seeking independent counsel. On the contrary, he only agreed to meet with Bates after being assured that she had not hired another attorney. Furthermore, Sel-enberg suggested that Bates had few options for recovering from him and thereby convinced her not to sue him fdr malpractice. Yet as the district court noted, other options, such as a consent judgment, “may very well have been available” and likely “would have put her in a much better legal position than the unsecured note.” Selen-berg also led Bates to believe he might be able to pay her in the future, even though that possibility was remote. These actions all suggest that Selenberg intended to deceive her.

Selenberg also contends that he “could not have made the statements with the intent to deceive since the promissory note provided for Selenberg to pay a 25% attorney fee,” “thereby insuring Bates that she would recover the full amount of $275,000.00” even after paying attorneys to assist in collecting on the note. But the fact that the promissory note provided for attorneys’ fees was essentially meaningless given that Selenberg knew there was a significant likelihood he would never be able to pay Bates the full $275,000, not to mention the additional attorneys’ fees. Accordingly, we hold that the bankruptcy court did not clearly err in finding that Selenberg acted with intent to deceive Bates.

3. Losses as a Proximate Result of Selenberg’s Representation

Finally, Selenberg argues the bankruptcy court erred in concluding that Bates sustained a loss or that any loss suffered was a proximate result of Selen-berg’s representation. Yet Selenberg does not point to any authority in support of his arguments. The bankruptcy court held that Bates “lost her chance to pursue [Sel-enberg] on a malpractice action” because Selenberg “persuaded her to take the note and ... convinced her that pursuing a malpractice action against him would be futile.” Thus, the court concluded that Bates sustained a loss as a proximate result of Selenberg’s false representation.

Selenberg first contends that the monetary value of the promissory note exceeded the value of Bates’s malpractice claim against Selenberg because the promissory note included an additional amount for attorneys’ fees. In this way, Selenberg seems to suggest that Bates received a benefit (rather than sustaining a loss) when she received the promissory note. But Bates did not receive any benefit at all because Selenberg never obtained the funds to pay her. Moreover, Selenberg subsequently sought to have the debt discharged in bankruptcy and to eliminate any rights bestowed by the promissory note. Next, Selenberg points out that Bates testified that she did not give up anything in accepting the promissory note. However, Bates’s opinion on this matter is not dis-positive. It seems clear from the record that Bates did not fully appreciate that she was forgoing the opportunity to recover from Selenberg by accepting the promissory note and declining to pursue a malpractice claim against him.

Selenberg also seems to argue that any loss Bates sustained actually occurred as a result of Selenberg’s failure to properly litigate the malpractice ease against Fau-cheux, not as a result of Selenberg’s false representation. However, case law directly contradicts this assertion. In Young, the Tenth Circuit held that the client “sustained a loss, which satisfies the final element under § 523(a)(2)(A),” because the client “never received payment on [the attorney’s] promissory note.” 91 F.3d at 1375. Like the client in Young, Bates never received payment on the promissory note. Furthermore, Bates lost the opportunity to pursue her malpractice claim against Sel-enberg because she relied on Selenberg’s advice that she would be more likely to recover if she bypassed a malpractice suit and sought to collect on the promissory note at a later date. Accordingly, the bankruptcy court correctly concluded that Bates sustained a loss as a proximate result of Selenberg’s false representation.

IV. CONCLUSION

For the reasons discussed above, we hold that the bankruptcy court did not err in holding that Selenberg obtained an extension of credit from Bates by actual fraud. Therefore, we AFFIRM the bankruptcy court’s conclusion that the debt was nondischargeable under § 523(a).

      . On appeal in Ritz, the Supreme Court held that "actual fraud” encompasses "fraudulent conveyance schemes, even when those schemes do not involve a false representation.” 136 S.Ct. at 1590. On remand, this Court stated that "[t]o the extent that ... prior Fifth Circuit cases required that a debt- or make a representation in order for a debt to be nondischargeable under § 523(a)(2)(A), those cases are effectively overruled by the Supreme Court's decision in this case.” In re Ritz, 832 F.3d 560, 565 n.3 (5th Cir. 2016). Although a false representation is no longer required, actual fraud can still be proven by showing that the debtor in fact made a false representation.

      . Selenberg does not appear to take issue with the bankruptcy court’s conclusion that Bates relied on Selenberg’s representation.

      . Selenberg does not cite any legal authority in support of his assertion that an attorney and client must actually settle a malpractice claim in order to trigger Rule 1.8(h)(2)’s disclosure obligations. On the contrary, Louisiana law suggests that attempts to settle a malpractice claim trigger an attorney's disclosure obligations. See, e.g., In re Lester, 26 So.3d 735, 738, 744 (La. 2010); In re Petal, 972 So.2d 1138, 1139-42 (La. 2008); In re Thompson, 712 So.2d 72, 73-74 (La. 1998); In re Elbert, 698 So.2d 949, 949-50 (La. 1997). Nevertheless, because we hold that the district court did not clearly err in finding that the parties effectively settled the claim, we need not reach the issue of whether the parties' negotiations were themselves sufficient to trigger Rule 1.8(h)(2).