U.S. Capital Funding VI, Ltd. v. Patterson Bankshares, Inc. (137 F. Supp. 3d 1340, 2015)

ORDER

LISA GODBEY WOOD, CHIEF judge, UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF GEORGIA

In this action, Plaintiff U.S. Capital Funding VI, Ltd. (“Plaintiff’), the beneficiary of certain trust preferred securities (“TruPS”), brings claims against the issuer of those securities, Patterson Bankshares, Inc. (“PBI”), and several related parties. Specifically, Plaintiff names the following as Defendants in this case: PBI; First Southern Bank (the “Bank”); J.P. Barnard, Jr., William Hughes, and Ronald Thomas (“Barnard,” “Hughes,” and “Thomas,” or, collectively, • the “Director Defendants”); Community Capital Advisors, Inc. (“Community Capital”); and John Does 1-50. Plaintiff seeks relief from these Defendants on a number of theories, including fraudulent transfer, tortious interference with contract, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, breach of contract, and conspiracy to effect a fraudulent transfer.

Presently before the Court are. several Motions to Dismiss separately filed by all of the Defendants, other than the unidentified John Does 1-50, collectively requesting a dismissal of Plaintiff’s claims on jurisdictional grounds as well as for failure to state a claim upon which relief may be granted. Dkt. Nos. 16, 20-21, 24, 50-52, 56. Also before the Court is Plaintiffs Request for Oral Argument on the Defendants’ Motions. Dkt. No. 36.

As discussed more fully below, the Defendants’ Motions to Dismiss premised upon a lack of subject-matter jurisdiction (dkt. nos. 20, 24, 52, 56) are GRANTED in part and DENIED in part as follows: the Motions are GRANTED in that Plaintiff s claims for equitably relief against all Defendants are hereby DISMISSED for lack of subject-matter jurisdiction; the Motions are DENIED in that the Court retains jurisdiction, over Plaintiffs claims for damages against all Defendants; and to the extent that some of these Motions also seek dismissal on the basis of failure tó state a claim (dkt. nos. 24, 52, 56), these portions of the Motions also are DENIED.

The Bank’s Motion to Dismiss for failure to state a claim (dkt. no. 21) is GRANTED in part and DENIED in part. This Motion is GRANTED with respect to Plaintiff’s claim of aiding and abetting breach, of fiduciary duty against the Bank, and this claim is hereby DISMISSED. However, the Motion is DENIED as it relates to Plaintiffs fraudulent transfer claim-against the Bank.

The remaining Motions to Dismiss on the basis of failure to state a claim (dkt. nos. 16, 50-51) are DENIED. Plaintiffs Request for Oral Argument (dkt. no. 36) is also DENIED at this time.

FACTUAL BACKGROUND

Plaintiff is a limited liability company organized under the laws of the Cayman Islands, with its principal place of business located in the Cayman Islands, and is a citizen of the United Kingdom. Dkt. No. 49, ¶12. When the events giving rise to this action occurred, PBI operated as a bank holding company incorporated in Georgia with Its principal place of business in Georgia, though PBI underwent administrative dissolution prior to the filing of this action. Id. at ¶¶9, 14. PBI’s primary asset was its ownership interest in its subsidiary, the Bank, which is incorporated in Georgia and continues to maintain its principal place of business in Georgia. Id. at ¶¶ 1, 3,15.

Barnard, Hughes, and Thomas, who reside in Georgia, comprised the board of directors of both PBI and the Bank at all relevant times. Id. at ¶¶ 5,16,18,20. When the events giving rise to this action occurred, Hughes also held the position of Chief Executive Officer of the Bank, and Thomas, a practicing attorney, served as legal counsel to PBI and the Bank. Id. at ¶¶ 18, 20-21. Community Capital is a consulting firm that provides financial services to community banks and is incorporated in Georgia with its principal place of business in Georgia. Id. at ¶ 22. John Does 1-50 are the individuals who have purchased stock in the Bank and whose identities and places of residence are not yet known to Plaintiff. Id. at ¶ 23. ■

I. TruPS Issuance

In 1996, the Federal Reserve Bank authorized bank holding companies to use trust preferred securities (“TruPS”) to raise their tier-1 capital to the level required by banking regulators for the bank holding companies to operate their banking businesses. Id. at ¶¶ 1, 27. TruPS qualify as debt for tax purposes, so a bank holding company may deduct interest payments on TruPS while also using the capital raised through the issuance of TruPS to satisfy the tier-1 capital requireménts. Id. at ¶ 28. In addition, the proceeds of a TruPS issuance may go back into the bank as equity, further adding to the bank’s tier-1 capital. Id. at ¶ 29. Issuers of TruPS can defer quarterly interest payments for up to twenty consecutive quarters, but all deferred payments must be paid at the end of the deferral period, with accrued interest. Id. at ¶ 30. Thus, according to Plaintiff, TruPS are a “low-cost alternative to issuing common stock as a way to raise and maintain capital for holding companies and banks.” Id. at ¶ 29.

In 2007, PBI issued TruPS securities through the Patterson Bankshares Capital Trust I (the “Trust”), a statutory business trust created pursuant to title 32, chapter 38 of the Delaware Code. Id. at ¶ 31. The Trust was established through a Declaration of Trust dated June 25, 2007, but is currently governed by an Amended and Restated Declaration of Trust dated June 27,2007 (the “Declaration of Trust”). Id. at ¶ 32; see also Dkt. No. 49-2. PBI owns 100% of the residual common equity of the Trust, and Wilmington Trust Company serves as trustee (the “Trustee”). Dkt. No. 49, ¶¶ 33-34.

To acquire tier-1 capital, PBI caused the Trust to sell 3,000 TruPS with a liquidation amount of $1,000 per, capital security; a fixed distribution rate per annum of 7.006% to be paid quarterly; and a variable distribution rate per annum, reset quarterly, equal to the London InterBank Offered Rater (LIBOR) plus 1.49% for each interest period after September 2012. Id. at ¶ 35. The TruPS mature in 2037. Id.

Plaintiff purchased, and thus became the beneficial owner of, 100% of the TruPS issued by PBI through the Trust. Id. at ¶ 36. As beneficial owner, Plaintiff is entitled to all funds paid pursuant to the TruPS, and, according to Plaintiff, it is the only party with an economic interest in the TruPS. Id. Upon Plaintiffs purchase of the TruPS, the Trust delivered the funds obtained from Plaintiff to PBI by purchasing a corresponding amount of debt securities (the “Debt Securities”) issued by PBI. Id. at ¶ 37. PBI’s payment obligations to the Trust under the Debt Securities mirror the Trust’s payment obligations to Plaintiff under the TruPS. Id. As the Debt Securities are the only assets of the Trust, PBI’s payments on the Debt Securities held by the Trust are the Trust’s only source of income from which to make payments on the principal and interest owed to Plaintiff. Id. at ¶ 38. When PBI makes a. payment of principal and interest on the Debt Securities to the Trust, the Trust then uses those funds to make a payment to Plaintiff. Id. at ¶ 45.

According to Plaintiff, because the TruPS represent the undivided beneficial ownership interest in the assets of the Trust, and -the Trust’s only assets are the Debt Securities purchased from PBI, the TruPS reflect an ownership interest in the Debt Securities, which are maintained by the Trust for the benefit of Plaintiff. Id. at ¶ 39. Plaintiff alleges that its investment in the TruPS was intentionally structured by PBI to depend on PBI’s financial ability, supported by its ownership of a regulated banking business, to satisfy the payment obligations. Id. at ¶ 46. Plaintiff maintains that it relied on this structure in deciding to invest in the TruPS, which was marketed to, and perceived by, Plaintiff as a “low-risk, low-return, fixed income investment! ].” Id. at ¶ 47.

The Debt Securities that the Trust purchased from PBI'are governed by an Indenture dated June 27, 2007 (the “Indenture”). Id. at ¶40. The' Trustee of the Trust is also the trustee of the Indenture. Id. at ¶41. The Indenture details PBI’s obligations as the issuer of the Debt Securities, id. at ¶ 42, and discusses the immunity of PBI’s directors and officers as follows:

ARTICLE XIII

Immunity of Incorporators, Stockholders, Officers and Directors

Section 13.01. Indenture and Debt Securities Solely Corporate Obligation.

No recourse for the payment of the principal of or premium, if any, or interest on any Debt Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental- indenture, or in any such Debt Security, or because of the creation of any indebtedness represented thereby,.shall.be had against any incorporator, stockholder, officer, director, employee or agent, as such past, present or future, of the.Company or of any predecessor or successor corporation of the Company, either directly or through the Company or any successor corporation of the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it . being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this .Indenture and the issue of the Debt Securities.

Dkt. No. 50-2, pp. 56-57. According to Plaintiff, because the payments made under the Debt Securities are' the only source of payment made under the TruPS, Plaintiff, as beneficial owner of 100% of the TruPS, was intended to be a third-party beneficiary of the Indenture. Dkt. No. 49, ¶ 43.

According to Plaintiff, the various agreements executed in connection with the issuance of the Trust securities—he Declaration of Trust, the Indenture, and a Guarantee Agreement in which PBI directly guaranteed payment to the holders of the TruPS—-were part of a single, integrated transaction. Id. at ¶48. Plaintiff further alleges that the parties intended and understood that the rights and protections included in the agreements were for the benefit of the investors in the TruPS, to secure PBI’s ultimate repayment of the TruPS. Id. Plaintiff relied on the rights and protections in these agreements when deciding to invest in the TruPS. Id. at ¶ 49.

II. Restrictions on the Disposition of PBFs Assets

From the outset, the parties intended for Plaintiff to look to PBI to satisfy any and all obligations owed to Plaintiff under the TruPS, an understanding reflected in the Guarantee Agreement. Id. at ¶ 50. Plaintiff represents that “[i]t was furthermore understood that PBI, as a bank holding company, would always have available to it at least substantially all'of the assets of its wholly-owned subsidiary, the-Bank, to satisfy and Secure repayment obligations to [Plaintiff].” Id. at ¶ 51. According to Plaintiff, in order to protect its access to these assets, “it was imperative that the Indenture éxpressly require PBI to agree that it would not take any action to divorce the payment obligations on the TruPS from the primary assets that were intended to secure those payments, i.e., the sole ownership of the Bank’s operating business assets.” Id. at ¶ 52 (emphasis omitted).

Several 'provisioris of the Indenture are relevant to this case:

• Section 3.07 expressly mandates that “if PBI ever were to transfer all or ■substantially all of its assets, the obligations securing repayment of the TruPS would become obligations of the entity acquiring the assets.” Id. at ¶ 53.

• Section 5.01(d) provides that PBI’s failure to comply with its covenant not to transfer all or substantially all of its assets without simultaneously conveying its repayment obligations on the TruPS would constitute ah Event of Default. Id. at ¶ 54.

• Section 5.01(e) states that if PBI were ordered to wind up or liquidate its affairs, and that order were to remain unstayed and in effect for a period of ninety consecutive days, an Event of Default would occur. Id. at ¶ 55. Under such circumstances, the principal and any premium and accrued interest would become immediately due and payable. Id.

• Section 5.01(f) stipulates that an Event of Default would occur, making the principal and any premium and accured interest' immediately due and payable, if PBI were to (a) initiate a voluntary bankruptcy or other similar proceeding, (b) consent to an order for relief in an involuntary bankruptcy or other similar proceeding, (c) agree to the appointment of a receiver or other similar official over it or a substantial portion of its property, (d) make any general assignment for the benefit of creditors, or (e) generally fail to pay its debts as they come due. Id. at ¶ 56.

III. Financial Decline of PBI and the Bank

In March of 2009, the Federal Deposit Insurance Corporation (the “FDIC”) “conducted a visitation of the Bank” and identified “the emergence of certain unsatisfactory conditions.” Dkt. No. 20-1, p. 3. The FDIC then “conducted a joint safety and soundness examination,” id;, and determined that the Bank was operating in an unsafe or unsound manner, dkt. no. 49, ¶ 57.-As a result, on January 29, 2010, the Bank agreed to the issuance of a Consent Order (the “Consent Order”) by the FDIC and the Georgia Department of Banking and Finance (the “Georgia DBF”) requiring that the Bánk take certain actions to eliminate and correct the allegedly unsafe or unsound conditions. See Dkt. No. 20-1, pp. 9-29 (citing 12 U.S.C. § 1818(b) and O.C.G.A. § 7-1-91); Dkt. No. 49, ¶¶ 57-60.

The Consent Order called for additional oversight by the Bank’s board of. directors, the. retention of qualified management, and the development of a performance-based compensation plan, among other things. See Dkt. No. 20-1, pp. 11-15; Dkt. No. 49, ¶ 58. The Consent Order also directed the Bank to develop a plan to reduce its concentrations of credit, and prohibited the Bank from extending any further credit, to improve its risk profile. See Dkt. No. 20-1, pp. 15, 23-24; see also Dkt. No. 49, ¶ 59.- Further, the Consent Order prohibited the Bank from declaring or paying out dividends, or making principal or interest payments on any debentures, without first obtaining the approval of regulatory officials. ;Dkt. No. 20-1, p. 18; Dkt. No. .49, ¶ 60. . ■

Significantly, the Consent Order required the Bank to raise its tier-1 capital to an amount at ór above 8% of its total assets and provided the following instruction: . 1

Any increase in Tier 1 Capital necessary to meet the[se] requirements ... may be accomplished by the following:

(i) sale of common stock; or

(ii) sale of noncumulative perpetual preferred stock; or

. (iii) direct contribution of cash by the Board, shareholders, and/or parent holding company; or

(iv) any other means that has been approved as acceptable to the Supervisory Authorities; or ■

(v) any combination of the above means.

Dkt. No. 20-1, pp.-15-18; see also Dkt. No. 49, ¶ 59. The Consent Order stated that if the Bank intended to sell new securities as its means of raising capital, it would first need to submit a plan detailing the proposed stock offering to the FDIC and obtain its approval prior to implementation. Dkt. No. 20-1, p. 17.

According to Plaintiff, becausó the Bank is, PBI’s primary asset, PBI also faced financial' and regulatory pressure during this time. Dkt. No. 49, ¶61. On June 1, 2010, PBI entered into an agreement (“Consent Agreement”) with the Federal Reserve Bank of Atlanta and the Georgia DBF, which established certain obligations for PBI and limitations on its activities. Dkt. No. 20-1, pp. 32-37; Dkt. No. 49, ¶ 62. Specifically, the Consent Agreement required that PBI’s directors “take appropriate steps to fully utilize [PBI’s] financial and managerial resources ... to serve as a source of strength to the Bank, including, but not limited to, taking steps to ensure that the Bank complie[d] with the Consent Order.” Dkt. No. 20-1, p. 33; Dkt. No. 49, ¶ 63. Additionally, the Consent Agreement forbade PBI from making any payments of principal or interest on the Debt Securities or the TruPS without prior regulatory approval. Dkt. No. 20-1, pp. 33-34; Dkt. No. 49, ¶64. According to Plaintiff, PBI had already deferred on its March 2010 quarterly interest payment on the TruPS and has continued to defer on every quarterly interest payment since then. Dkt. No. 49, ¶ 65.

Plaintiff maintains that Hughes, Thomas, and Barnard, as directors of both the Bank and PBI, led the Bank and PBI into this unsafe and unsound condition. Id. at ¶ 66. According, to Plaintiff, new and competent leadership would have benefited the Bank and PBI by adding credibility to their efforts to raise capital, which would have improved their financial positions. Id. at ¶ 67. Plaintiff hypothesizes that if PBI-had raised additional capital or sold the Bank to -a financially sound peer who could simultaneously assume the repayment obligations on the TruPS, it would have been at the risk of Hughes and Barnard losing their jobs with the Bank and the Director Defendants and other stockholders of PBI receiving little in return, given the Bank’s poor financial condition and the requirement to assume the TruPS. Id. at ¶ 68. Instead, Plaintiff avers that in the three years following the entry of the Consent Order, Hughes, Thomas, and Barnard, “determined to maintain their own positions, prevented the Bank and PBI from taking either of these appropriate actions.” Id. at ¶ 69.

Under the continued direction of the Director Defendants, the financial condition of PBI and the Bank declined even further. Id. at ¶ 70. By late 2012, the Bank’s tier-1 leverage ratio plummeted to 2.55%. Id. at ¶ 71. PBI’s income statement for 2012 reflected a net loss of $887,000. Id. at ¶73. PBI’s balance sheet showed $6,865,000 of liabilities (including the debt owing on the TruPS) and only $3,042,000 of assets (of which $2,844,000 was attributable to its 100% investment in the’Bank), leaving the stockholders’ equity at a negative $3,823,000. Id.

IV. PBI’s Scheme to Transfer Its Assets

According to Plaintiff, at this juncture, “PBI’s financial situation called for it to declare bankruptcy.” Id. at ¶ 74. Plaintiff posits that if this had occurred, Plaintiff “likely would have ultimately ended up holding PBI’s primary asset—its interest in the Bank.” Id. Plaintiff speculates that in that scenario, it would have been in a position to protect what remained of its interest and to recover some of its losses through a judicially supervised bank sale. Id. A declaration of bankruptcy by PBI, however, would have left the Director Defendants and its other stockholders empty handed and resulted in a change in Bank ownership, with the new owner having the right to hire new management. Id. at ¶¶ 75-76. Thus, Plaintiff alleges that the Director Defendants were motivated to avoid declaring bankruptcy to preserve their equity investments and to maintain their positions of control. Id. at ¶ 77.

Plaintiff further hypothesizes that if PBI had declared bankruptcy or the Bank had failed, the Director Defendants would have suffered a loss of prestige and damage to their reputations in the community. Id. at ¶80. Plaintiff explains-that the Director Defendants are prominent business figures in the small communities where the Bank operates its branches. Id. Additionally, Plaintiff maintains that if the Bank had failed, the Director Defendants would have faced the prospect of professional liability suits from the FDIC, which would have been particularly damaging to Thomas as an attorney. Id. at ¶¶ 78-79.

According to .Plaintiff, to avoid these risks, the Director Defendants “devised a scheme to allow PBI’s stockholders to position themselves ahead of [Plaintiff], and to protect [their] positions with PBI and the Bank and [their] reputation^] within the community.” Id. at ¶ 81. The Bank hired' Community Capital, “a consulting firm that specializes in assisting community banks [with] raising] capital.” Id. at ¶ 82. Plaintiff maintains that the Director Defendants, “acting as directors of both PBI and the Bank and with the assistance of Community Capital, had the Bank issue new stock in a private placement to transfer what was effectively more than a 99% interest in PBI’s assets.” Id. at ¶ 83. Plaintiff alleges, on information and belief, that “new shares were issued in March 2013 to current holders of PBI’s stock and their friends and famil[ies].” Id. at ¶ 84.

Plaintiff asserts that PBI never informed the Trustee or Plaintiff of its plan to have the Bank issue stock and avoided publicizing this information until the completion of the stock sale. Id. at ¶ 85. According to Plaintiff, these omissions were made out of concern “that the scheme would be discovered prior to its consummation” and in an attempt “to prevent Plaintiff from seeking injunctive relief.” Id.

As a result of the stock sale, “PBI’s interest in the Bank went from 100% to less than 1%, or from a book value of $2,844,000 to just $68,000.” Id. at ¶86. Notably, PBI “did not receive any payment or other value for the loss of its majority position in the Bank.” Id. at ¶ 87. Furthermore, the terms of the stock sale “did not require the new investors in' the Bank to assume the repayment obligations to [Plaintiff].” Id. at ¶ 89. In effect, PBI’s stockholders were able to preserve their ownership interests in the Bank—which were previously achieved indirectly through holding shares of PBI’s stock but were encumbered by the debt to Plaintiff—-by making “a new equity investment directly in the Bank that was free of that debt.” Id. at ¶ 90.

PBI, in turn, “was left as a shell holding company with no real assets and no way to repay its liabilities to [Plaintiff].” Id. at ¶92. Plaintiff received nothing in the transaction and claims that its interests were harmed as a result thereof. Id. at ¶88. In particular, Plaintiff claims that “[a]t the time PBI caused the Bank’s stock sale, nearly $3.7 million, had accrued and was owing with respect to past due interest payments.” Id. at ¶¶ 112-13.

Plaintiff alleges that “PBI and the Bank conspired to conduct the transfer of PBI’s interest in the Bank at á time when PBI was • insolvent.” Id. at ¶ 91. According to Plaintiff; PBI deliberately constructed the stock issuance to shirk its obligations to the Trust and Plaintiff, “which reportedly hád beén a deterrent to PBI " raising capital” and “were senior to PBI’s equity holders’ rights.” Id at" ¶ 94. Furthermore, Plaintiff contends that the Director Defendants and the Bank attempted to separate the Bank and its income-producing assets from PBI’s repayment obligations on the TruPS. Id. at ¶¶ 91, 951 As a result, Plaintiff maintains that it “was denied its right to ensure that PBI would retáin its primary asset-100% ownership in the Bank-to which [Plaintiff] could look for repayment” of the TruPS. Id. at ¶ 93. Plaintiff submits that this was the exact situation contemplated by the provision in the Indenture prohibiting PBI from transferring all or substantially all of its "assets without ensuring that’ the transferee assume the obligations to Plaintiff. Id at ¶ 95.

V. Trustee’s Approval of Filing Suit..

Pursuant to the procedure set forth in Section 5(b) of Annex I of the Declaration of Trust, Plaintiff gave the Trustee notice of these allegedly wrongful’ actions and directed the Trustee to take action to remedy those wrongs in a letter dated November 26, 2013 (the “Direction Letter”). Id.at ¶ 101; see also Dkt. No. 49-1. The Direction Letter details the facts and circumstances of each of the alleged wrongs and further states:

This letter constitutes [Plaintiffs] direction, as the holder of 100% of the outstanding TruPS, that [the Trustee] take steps to cause litigation to be instituted and pursued against [the Defendants], asserting claims of tortious interference,. fraudulent transfer, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty, as outlined above, and to amend its complaint to assert the additional claim of breach of contract against .pBI, should PBI not remedy the breach within 90 days of receiving a Notice of Default pursuant to Section 5.01(d) of the Indenture (the actions described in this paragraph and any actions ancillary thereto being referred to hereinafter collectively as the “Directed Actions”).

Dkt. No. 49-1, p. 6.

The Trustee responded by letter on April 3, 2014, that it agreed, “under the particular facts of this case, including that [Plaintiff] appealed] to hold 100% of the Capital Securities, to defer to [Plaintiff] with respect to the Directed Actions,” those being the actions “defined in the Direction Letter.” Dkt. No. 49-3, p. 2. The Trustee thus consented to Plaintiff taking action to enforce the Trusteed rights as a creditor, of PBI, which included the.right to seek redress for a violation of its rights as well as the right to bring claims against the Director Defendants for breach of their fiduciary duties. Dkt. No. 49, ¶¶ 104-OS.

VI. PBPs Notice of Dissolution

' On May 5,'2014, PBI issued notice that it was administratively dissolved by the Georgia Secretary of State and was winding up its affairs and liquidating its assets. Id. at ¶¶ 9, 96; see also Dkt. No. 24-1. According to Plaintiff, at the time of filing the Amended Complaint, PBI’s remaining 1% interest in the Bank had a value of less than .7% of the total amount of its obligation to the Trust and Plaintiff. Dkt. No. 49, ¶¶9, 11, 9g. Plaintiff alleges that, on information and belief, “by allowing PBI to begin the process of liquidation and winding up its affairs, the Director Defendants sought to finally extinguish PBI’s obligations to repay what it received from [Plaintiff].” Id. at ¶ 99. Plaintiff asserts that “[a]t the same time, the [Defendants improperly sought to preserve the Bank and its assets from the creditors of PBI.” Id. at ¶ 100.

VII. Plaintiffs Notice of Default

As required in the Indenture, Plaintiff sent PBI a Notice of Default prior to bringing suit for breach of the contractual provisions therein. Id. at IT 106. In the Notice of Default, Plaintiff informed PBI that two Events of Default had occurred pursuant to Section 5.01 of the Indenture: (1) PBI had failed to comply with Section 3.07 by conspiring with the Bank and causing it to issue stock to investors, transferring 99% of PBI’s ownership interest in the Bank to individuals who did not assume any repayment obligation regarding the TruPS, id. at ¶ 107; and (2) PBI had initiated administrative dissolution. Id. at ¶ 108.

PBI responded to the Notice of Default on December 29, 2014, denying that any Event of Default , had taken place under either section of the Indenture. Id. at ¶ 109. Plaintiff alleges that PBI’s response indicated that it has no intention to remedy the alleged defaults, and, as such, PBI is in breach of the Indenture. Id. at ¶ 110.

VIII. Plaintiffs Filing of Suit

On November 14, 2014, Plaintiff filed suit in this Court against PBI, the Bank, Community Capital,. Hughes, Barnard, Thomas, and the John Doe shareholders of the Bank. Dkt. No. 1. Plaintiff cites diversity of citizenship as the basis for this Court’s jurisdiction to hear Plaintiffs state-law claims, explaining that the parties are citizens of the State of Georgia and the United Kingdom, and that the amount in controversy exceeds $75,000. Dkt. No. 49, ¶ 24.

Plaintiff asserts its first cause of action, Count I, against PBI, the Bank, and John Does 1-50 for fraudulent transfer, under O.C.G.A. §§ 18-2-70 et seq. Id. at ¶¶ 111-26. Pursuant to this Count, Plaintiff claims entitlement to an order voiding the sale of stock in the Bank. Id. at ¶ 125. Plaintiff further claims entitlement to equitable relief pursuant to O.C.G.A. § 18-2-77(a) (3) (C), including “an order compelling the Bank to assume PBI’s obligations under the Indenture or otherwise take action to ensure that the TruPS will be repaid from the Bank’s assets or, in.the alternative, an equitable lien and constructive trust on the stock issued by the Bank.” Id..at ¶ 126.

In Count II, Plaintiff brings a tortious interference claim against Community Capital and seeks damages in connection therewith. Id. at ¶¶ 127-37. In Count III, Plaintiff asserts a cause of action for breach of fiduciary duty against Barnard, Hughes, and Thomas, again seeking damages. Id. at ¶¶ 138-56. Additionally, Plaintiff sets forth a;claim for damages in Count IV against the Bank and Community Capital for aiding and abetting the Director Defendants’ alleged breach of their fiduciary duties. Id. at ¶¶ 157-69..

In addition to the foregoing counts, Plaintiff amended its original Complaint on April 2, 2015, to add Count V and Count VI. See generally id. Plaintiffs Count V is for breach of the Indenture against PBl and seeks damages. Id. at ¶¶ 170-82. Count VI asserts a cause of action against. PBI and the Bank for conspiracy to effect a fraudulent transfer. Id. at ¶¶ 183-203. In connection with this Count, Plaintiff claims entitlement to the following: (1) an order voiding the sale of the Bank’s stock; (2) equitable relief pursuant to O.C.G.A. § 18-2—77(a)(3)(C) and (b), including “an order compelling the Bank to assume PBI’s obligations under the Indenture or otherwise take . action to ensure that the TruPS will be repaid from the. Bank’s assets”; and (3) damages from PBI and the Bank. Id. at ¶¶ 201-03,.

LEGAL STANDARDS

Federal. Rule of Civil Procedure 8(a) requires that a plaintiffs complaint contain both “a short and plain statement of the grounds for the court’s jurisdiction” as well as “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(l)-(2). Accordingly, a responding party may move to dismiss the complaint based on a “lack of subject-matter jurisdiction” or a “failure to state a claim upon which relief can be granted,” under Federal Rule of Civil Procedure 12(b)(1) and (6), respectively (“Rule 12(b)(1)” and “Rule 12(b)(6)”). In addition, Federal Rule of Civil Procedure 12(h)(3) (“Rule 12(h)(3)”) provides-that a district court must dismiss an action “[i]f the court determines at any time that it lacks' subject-matter jurisdiction.”

I. Rule 12(b)(1) Motion to Dismiss

A motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) “can be asserted on either facial or factual grounds.” Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir.2009). A “facial” challenge to subject-matter jurisdiction is based “solely on the allegations in the complaint. When considering such challenges, the court must, as with a Rule 12(b)(6) motion, take the complaint’s allegations as true.” Id.

By contrast, a “factual” challenge to jurisdiction relies on facts and circumstances existing outside of the complaint; in those circumstances, a court “may consider extrinsic evidehce such as deposition testimony and affidavits.” Id. In other words, “[b]ecause at issue in a factual [Rule] 12(b)(1) motion is the trial court’s jurisdiction—its very power to hear the case— there 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,” without attaching any presumptive truthfulness to the plaintiffs allegations. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990) (quoting Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981)).

Here, Defendants attack subject-matter jurisdiction based not only on the factual allegations on the face of Plaintiffs Amended Complaint, but also on facts found in the Consent Order and Consent Agreement. See,, e.g., Dkt. No. 20, p. 10. As these documents are neither included in nor attached to the Amended Complaint, Defendants’ challenge relies on facts existing outside of the Amended Complaint and, 'therefore, is factual in nature. Thus, in evaluating subject-matter jurisdiction in this case, the Court must consider and weigh the extrinsic evidence and need not accept Plaintiffs factual contentions as true.

II. Rule 12(b)(6) Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the'complaint in setting forth a claim to relief. See Fed. R. Civ. P. 12(b)(6). While a complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (interpreting Fed. R. Civ. P. 8(a)(2)). To be plausible on its face, a complaint must set forth enough facts to “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. At a minimum, a complaint should “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some, viable legal theory.” Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir.2007) (per curiam) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.2001)).

In evaluating a Rule 12(b)(6) motion, a court must “accept as true the facts as set forth in the complaint and draw all reasonable inferences in the plaintiffs favor.” Randall v. Scott, 610 F.3d 701, 705 (11th Cir.2010). Ordinarily, a court’s review on a motion to dismiss is limited to the factual allegations on the face of the complaint. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. If a court is presented with matters outside the pleadings on a motion to dismiss, the motion to dismiss is converted into one for summary judgment. Fed. R. Civ. P. 12(d).

However, there are certain instances in which a court may consid'er matters outside the pleadings without, transforming a motion to dismiss into a summary judgment motion. See Davis v. Self, 547 Fed.Appx. 927, 929 (11th Cir.2013). For example, a court may consider copies of documents that a plaintiff has attached to the complaint. See Brooks v. Blue Cross & Blue Shield of Fla., 116 F.3d 1364, 1368 (11th Cir.1997) (a court may examine “the face of the complaint and attachments thereto”). In addition, a court may look to documents that are central to, or referenced in, the complaint. See Davis, 547 Fed.Appx. at 929 (a court may reference “other sources courts ordinarily examine when ruling on ... dismissal, in particular, documents incorporated into the complaint by reference” (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007))). Finally, a court may also consider facts that are subject to judicial notice. See Fed. R. Evid. 201(a)—(d); Tellabs, Inc., 551 U.S. at 322, 127 S.Ct. 2499; see also Fed. R. Evid. 201(b)(2) (“The court may judicially. notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); Boateng v. InterAmerican Univ., Inc., 210 F.3d 56, 60 (1st Cir.2000) (a court ‘may treat documents from prior state court adjudications as public records' subject, to judicial notice).

DISCUSSION

Defendants move to dismiss Plaintiffs Amended Complaint -for lack of subject-matter jurisdiction and failure to state a claim pursuant to Rule 12(b)(1) and Rule 12(b)(6), respectively. See Dkt. Nos. 16, 20-21, 24, 50-52, 56. Plaintiff has responded to Defendants’ Motions, see dkt. nos. 35, 37, 53, 73, and has moved for a hearing on the same, dkt. nos. 36, 58. The Court, applying the above-described standards, addresses the issues'raised in-these submissions in turn.

I. Dismissal for Lack of Subject-Matter Jurisdiction

Defendants: maintain that this Court lacks subject-matter jurisdiction to hear Plaintiffs claims, which they, construe as attempting to collaterally attack and interfere with the Consent Order issued by the FDIC and Georgia DBF. See Dkt. No. 20; see also Dkt. Nos. 24, 39, 41, 52, 56. Defendants cite several grounds allegedly barring the Court from exercising jurisdiction over these claims:>(l) that Congress granted the; FDIC exclusive authority to establish capital requirements and to'issue orders enforcing those requirements; (2) that Congress intended to ■ preclude third-party lawsuits seeking to affect'the enforcement of such an order; (3) that these congressional mandates preempt any state law permitting a court to review or'affect, by injunction or otherwise, the enforcement of such an order; and (4) that Georgia law provides no basis to challenge or collaterally attack an order of the Georgia DBF. Dkt. No. 20, pp.‘ 11-23. In-addition, Defendants have submitted, as an attachment, an affidavit of Hughes as well as copies of the Consent Order and Consent Agreement. See Dkt. No. 20-1;

A federal district, court has subject-matter jurisdiction over any pivil action presenting a.federal question. See 28 U.S.C. § 1331 (“The. district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). Additionally, a district court’s jurisdiction extends to any-civil action where there is,, diversity of citizenship among the parties and the amount in controversy exceeds $75,000, excluding interest and costs. See id. § 1332(a) (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different State's; [or] (2) citizens of a State and citizens or .subjects of a foreign state ....”)." ■ .

Plaintiffs Amended Complaint cites diversity of citizenship as the basis for this Court’s subject-matter jurisdiction, álleg-ing that the parties are citizens of the State of Georgia and the United Kingdom and that- the amount in controversy - exceeds $75,000. Dkt. No. 49, ¶ 24 (citing 28 U.S.C. § 1332(a)). Indeed, it appears, and Defendants do not dispute, that the conditions for diversity jurisdiction are satisfied in this case. Thus, the Court must consider whether any of the grounds advanced by Defendants nevertheless, divests this Court of jurisdiction over this matter.

A. The FDIC’s Exclusive Authority as a Jurisdictional Bar

Defendants argue that Congress granted federal banting agencies exclusive authority to establish capital requirements and to issue orders enforcing those requirements, thus precluding any review of the FDIC s decision regarding the Bank’s capital requirements in this case. Dkt. No. 20, pp. 11-16 (citing 12 U.S.C. §§ 1818, 3907); see also Dkt. Nos. 24, 39, 41, 52, 56.

12 U.S.C. § 3907 (“Section 3907”) states, in pertinent part, that “[e]ach appropriate [flederal banking agency shall have the authority to establish such minimum level of capital for a banking institution as the appropriate [fjederal banking agency, in its discretion, deems to be necessary or appropriate in light of the particular circumstances of the banking institution.” 12 U.S.C. § 3907(a)(2). If a banking institution fails to maintain capital , at or above the minimum level determined by the federal banking agency, the agency, in its discretion, may deem such failure “to constitute an unsafe and unsound practice.” Id. § 3907(b)(1). In such circumstances, the federal banking agency “may issue a directive____requiring] the banking institution to submit and adhere to a plan acceptable to the appropriate [fjederal banking agency describing the means and timing by which the banking institution shall achieve its required capital.” Id. § 3907(b)(2)(A)-(B)(i). This directive, including any plan submitted pursuant thereto, is enforceable pursuant to the provisions of 12 U.S.C. § 1818(i) (“Section 1818(9"). Id. § 3907(b)(2)(B)(ii).

In addition, if, “in the opinion of the appropriate [f]ederal banking agency,” any banking institution is engaging in “an unsafe or unsound practice,” the agency may issue and serve upon the banking institution a- notice setting forth such charges and fixing a time for a hearing theréon. Id. § 1818(b)(1). Upon the consent of the banking institution, or upon a finding that the record of the hearing establishes an unsafe or unsound practice, the federal banking agency may issue and serve “an order to cease and desist from any such violation or practice” and “to take affirmative action to correct the conditions resulting from any such violation or practice.” Id. As with directives issued pursuant to Section 3907, a cease-and-desist order is enforceable Under Section 1818(i). See id. § 1818(9(1).

, Section 1818(f) provides as follows:

The appropriate Federal banking agency may in its discretion apply to the United States district court, or the United States court of any territory, within the jurisdiction of which the home office of the depository institution is located, for the enforcement of any effective and outstanding notice or order issued under this section or under section 1831o or 1831p-l of this title, and such courts shall have jurisdiction and power to order and require compliance herewith; but except as otherwise provided in this section or under section 1831o or 1831p-1 of this title no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under any such section, or to review, modify, suspend, terminate, or set aside any such notice or order.

Id. § 1818(i)(l) (emphasis omitted).

In the case at bar, the FDIC’s joint safety and soundness examination, conducted in -2009, suggested that the Bank was operating in an unsafe or unsound manner. Dkt. No. 2G-1, p. 3; Dkt. No. 49, ¶ 57. Upon the Bank’s consent, the FDIC, acting pursuant to its authority to issue a céase-and-desist order, entered the Consent Order on January 29, 2010. See Dkt. No. 20-1; pp. 9-29 (citing 12 U.S.C: § 1818(b) and O.C.G.A. § 7-1-91); Dkt. No. 49, ¶¶ 57-60. True to form, the Consent Order prohibited the Bank from engaging in the allegedly unsafe and unsound practices and required it to take affirmative action to correct the same, including taking steps to raise its tier-1 capital to an amount at or above 8% of its total assets. Dkt. No. 20-1, pp. 15-18; Dkt. No. 49, ¶59. The Consent Order also provided, “Any increase in Tier 1 capital ... may be accomplished” by several methods, including “a sale of stock” or “any other means that has been approved as acceptable.” Dkt. No. 20-1, p. 16.

Defendants are correct in arguing that pursuant to Section 1818(i), this Court is without jurisdiction to review or affect, by injunction or otherwise, the FDIC’s capital directive as set forth in the Consent Order. Dkt. No. 20, pp. 13-16 (citing Frontier State Bank Okla. City, 702 F.3d at 596, and FDIC v. Bank of Coushatta, 930 F.2d 1122, 1129 (5th Cir.1991), for the proposition that district courts lack jurisdiction to review the FDIC’s decisions regarding,capital requirements). In this case, however, Plaintiff does not challenge the soundness of the FDIC’s decision to set the Bank’s minimum capital amount at 8%, nor does Plaintiff attack the wisdom of the various methods suggested by the FDIC for meeting the capital requirement. Rather, Plaintiff álleges that PBI, the Bank, and the Director Defendants, when faced with several options for raising the Bank’s capital, pursued a method causing them to breach their existing duties to Plaintiff and to engage in fraudulent and tortious activity. See Dkt. No. 49, ¶¶ 57-100. Because it is this action for which Plaintiff seeks relief, -an evaluation of Plaintiffs claims would not require passing upon the terms of, or affecting in any way, the capital directive set by the FDIC.

Thus, Plaintiffs claims do not concern the FDIC’s exclusive authority to set minimum capital requirements and to issue orders regarding the same. As such, Section 1818(f) does hot serve as a bar to this Court’s jurisdiction on this basis'. Defendants’ Motions (dkt. nos. 20, 24, 52, 56) are DENIED to the extent that they rély oh the FDIC s exclusive authority to set capital requirements as a jurisdictional bar.

B. Preclusion of Third-Party Lawsuits as a Jurisdictional Bar

Defendants contend that Congress, in authorizing federal banking agencies to file suit in district court under Section 1818(f), intended to preclude third-party lawsuits, such as this one, seeking to affect the enforcement of the agency’s orders. Dkt. No. 20, pp. 16-20; see also Dkt. Nos. 24, 89, 41, 52, 56.

Section 1818(f) provides that a federal banking agency may file suit , in district court to enforce or require compliance with an outstanding order, but that no court has jurisdiction “to affect by injunction or otherwise” the enforcement of such order or “to review, modify, suspend, terminate, or- set -aside” such order. 12 U.S.C. § 1818(f)(1). '

As cited by Defendants, several courts have found that Section 1818 (i) precludes subject-matter jurisdiction where the plaintiff seeks relief for the defendant’s improper practices that are the very conduct giving rise to, and resolved by, the federal banking agency’s consent order. See, e.g., Anderson v. Deutsche Bank Nat’l Trust Co., No. 13-CV-12854, 2014 WL 988994, at *4 (E.D.Mich. Mar. 13, 2014) (reasoning that because the consent order addressed and sought to correct the defendant’s improper practices, relief based on those practices would necessarily affect the enforcement of the consent order); Bakenie v. JPMorgan Chase Bank, N.A., No. SACV 12-60 JYS MLGX, 2012 WL 4125890, at *3 (CD.Cal. Aug. 6, 2012) (same). In addition, at least one court has found that Section 1818(i) deprives courts of jurisdiction to hear claims for -relief that, if granted, would require the defendant to act in direct contravention of the consent order. Am. Fair Credit Ass’n v. United Credit Nat’l Bank, 132 F.Supp.2d 1304, 1312 (D.Colo.2001) (no jurisdiction over claims seeking money damages where consent order expressly mandated that-defendant cease all payments to plaintiff).

By contrast, these and other courts have determined that Section 1818(i) does not disrupt jurisdiction over claims seeking relief that is neither addressed in nor inconsistent with the consent order, but rather is separately provided at law. See, e.g., Ellis v. J.P. Morgan Chase & Co., 950 F.Supp.2d 1062, 1078-79 (N.D.Cal.2013) (jurisdiction to hear fraud claims premised on defendant’s improper action where consent order was silent' as to relief sought and defendant failed to show how relief would necessarily affect enforcement of order); Rex v. Chase Home Fin. LLC, 905 F.Supp.2d 1111, 1129 (C.D.Cal.2012) (jurisdiction to hear contract claims seeking relief not addressed in consent order); In re JPMorgan Chase Mortg. Modification Litig., 880 F.Supp.2d 220, 232 (D.Mass.2012) (same); Am. Fair Credit Ass’n, 132 F.Supp.2d at 1312 (retaining jurisdiction over contract and tort claims seeking relief not covered in the consent order); cf. Anderson, 2014 WL 988994, at *5 (‘This is not a situation where the plaintiff is bringing separate claims, such as breach of contract or promissory estoppel, related' to a foreclosure; in this case, Plaintiffs premise their relief entirely on the Consent Orders.*) Furthermore, at least one court has held that Section 1818(i) does not preclude subject-mattér' jurisdiction over claims against any defendants who are not parties to the consent order. Am. Fair Credit Ass’n, 132 F.Supp.2d at 1311.

Based on this guidance, it appears that Section 1818(i) precludes this Court from exercising jurisdiction over Plaintiffs claims seeking to undo the stock issuance or-impose repayment obligations on the Bank. Indeed, the Consent Order addresses the Bank’s stock issuance as an acceptable means of raising-capital, and, presumably, the FDIC gave prior approval for the Bank to’ issue stock for that purpose. See Dkt. No. 20-1, pp. 16-17. At this point, an ordér directing the Bank to undo the stock issuance, and- thus forfeit any capital raised thereby, would require the Bank to take action directly contrary to the FDIC’s mandate to raise and maintain its tier-1 capital at or above the specified level.

Additionally, the Consent Order restricts the Bank from incurring liabilities, aims 'to improve the Bank’s risk profile, and prohibits the Bank from making principal or interest payments on any debentures without prior approval. Id. at pp. 15, 18, 23-24. Moreover, the FDIC’s approval of the Bank’s proposed stock issuance likely did not contemplate that the issuance would come with these strings attached— namely, the obligation to repay the debt owing under the TruPS. For these reasons, requiring the Bank to assume repayment obligations amounting to over $3 million would serve to undermine the terms and the purpose of the -FDIC’s Consent Order. Under such circumstances, Section 1818(i) bars this Court from exercising jurisdiction.

Even so, the. Court retaips jurisdiction over Plaintiffs claims for money damages. While the. .Consent Order addresses the Bank’s ability to make certain payments, it does not shield the .Bank entirely from suits by nonparties asserting rights to relief at law. Indeed, the FDIC could .not have intended to. insulate the Bank frpm all lawsuits arising in contract and tort— even those wholly unrelated to the Bank’s stock issuance—simply because those actions might result in a money judgment. Additionally, PBI, Community Capital, the Director Defendants, and John Does ,1-50 are not parties to the Consent Order, and, therefore, Section 1818(i). has no effect on the damages claims as to them. Thus, any relief granted pursuant to Plaintiffs damages claims would not have any effect on the FDIC’s enforcement of the Consent Order.

Accordingly, Defendants’ Motions to Dismiss on this basis (dkt. nos. 20, 24, 52, 56) are GRANTED in part and DENIED in part: The Motions are GRANTED to the extent that the Court lacks subject-matter jurisdiction over, and hereby DISMISSES, Plaintiffs third-party claims seeking to undo the Bank’s issuance of stock and to require the Bank to assume the repayment obligations on the TruPS. The Motions .are DENIED in that the Court , retains jurisdiction to hear Plaintiffs claims as they relate to money damages.

C. Preemption of State-Law Claims as a Jurisdictional Bar

Defendants further assert that Sections 3907 and 1818(i) preempt any state-law claims that may otherwise appear to afford a basis for reviewing or affecting, by injunction or otherwise, the enforcement of a federal banking agency’s order. Dkt. No. 20, pp. 20-21; see also Dkt. Nos. 24, 39, 41, 52, 56.

In determining whether a federal statute preempts state law, the ultimate touchstone is congressional intent. Irving v. Mazda Motor Corp., 136 F.3d 764, 767 (11th Cir.1998) (citing Perry v. Mercedes Benz of N. Am., Inc., 957 F.2d 1257, 1261 (5th Cir.1992)). Congress, in passing a federal law, may effectively preempt a state law in three different ways: “(1) express preemption; (2) field preemption (regulating the field so extensively that Congress, clearly intends the subject area to be controlled only by federal law); and (3) implied (or conflict) preemption.” Id. Defendants assert that. Plaintiffs state-law claims concern the FDIC’s regulation of the Bank’s capital and, therefore, are preempted under the third type—implied, or conflict,'preemption. Dkt. No. 20, p. 20.

Section 3907 grants a federal banking agency authority, “in its discretion” and as it “deems to be necessary or appropriate,” to set a banking iiistitution’s minimum capital level. 12 U.S.C. § 3907(a)(2). Section 181S(i) provides a vehicle for enforcing a capital directive or a consent order related thereto, and limits a court’s jurisdiction to review, or affect by injunction or otherwise, the FDIC’s orders. Id. § l8l8(i)(l).

In the previous Subpart, the Court addressed the extent to which Section 1818(i) precludes jurisdiction over Plaintiffs third-party claims seeking relief interfering with the FDIC’s enforcement of the Consent Order in this case. Though cast in terms of preemption rather than subject-matter jurisdiction, Section 1818(i) applies equally here. For the reasons discussed in that Subpart, Section 1818(i) impliedly preempts Plaintiffs, , state-law claims seeking to reverse the stock sale or to require the Bank to assume PBI’s payment obligations on the TruPS, but it does not preempt Plaintiffs claims for damages. See Irving, 136 F.3d at 768 (“Conflict preemption exists where state law actually conflicts with federal law, making it impossible to comply with both, or where the state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”).

As such, preemption provides an additional or alternative basis for dismissal of Plaintiff’s claims for equitable relief, and Defendants’ Motions to Dismiss (dkt. nos. 20, 24, 52, 56) are'. GRANTED to this extent. However, because Plaintiffs damages claims are not preempted, Defendants’ Motions to this end (dkt. nos. 20, 24, 52, 56) are DENIED.

D. Georgia Law as Jurisdictional Bar

Finally, Defendants argue that Plaintiff has no basis under Georgia law to challenge or collaterally attack an order of the Georgia DBF. Dkt. No. 20, pp. 21-23; see also Dkt. Nos. 24, 39, 41, 52, 56. ■

Much like the authority vested in federal banking agencies by virtue of Section 3907, O.C.G.AÍ § 7-1-91 (“Section 7-1-91”) authorizes the Georgia DBF to issue an order directing a financial institution to raise its capital “[wjhenever it shall appear to the [Georgia DBF] that the capital stock of a financial institution has been reduced below the minimum required by law or below the amount required by its articles or that its net assets are less than the amount of its capital stock.” O.C.G.A. § 7-l-91(a). In addition, Section '7-1-91 permits the Georgia DBF to issue a cease- and-desist order whenever it appears that any financial institution “is conducting business in an unsafe or unauthorized manner.” Id. § 7-l-91(d).

Further, O.C.G.A. § 7-1-90 (a) (“Section 7-1-90 (a)”) sets forth a specific procedure for obtaining judicial review of an order issued by the Georgia DBF. That section provides, in relevant part, that

[a]ny final action-of the [Georgia DBF] or. refusal of the [Geprgia DBF] to apt may-be subject to judicial review by any person or corporation affected by such action. Such action shall be brought within 60 days of the final action or refusal of action by the [Georgia DBF] as a special statutory proceeding in the county in which the affected person or corporation resides or is domiciled if within this state (which in the case of a corporation shall be the county of its registered office if it has' such an office) or in Fulton County if ‘the affected person or corporation resides or is domiciled outside of this ’ stale. The review shall be conducted by the i court without ajury.

Id. § 7-l-90(a).

Defendants contend that Section 7-l-90(a) displaces any other avenues of judicial review of a Georgia DBF order under state law, and, therefore, Plaintiff’s challenge to the Consent Order issued by the FDIC and the Georgia DBF should have been filed in the manner, and within the time frame, set forth under that statute. Dkt, No. 20, pp. 22-23. However, for the reasons discussed ' in Subpart 1.A, Plaintiff’s claims do not -appear to request, or even indirectly involve, an evaluation of the terms of the Consent Order. Rather, Plaintiffs state-law claims primarily concern its rights separately arising by contract or by law as well-as alleged violations of those rights through events occurring more than three years after the-entry of the Consent Order. See Dkt. No. 49, ¶¶ 57, 84. Consequently, Plaintiff could not have brought these claims within sixty days of the entry of the Consent Order,, and, in any event, these claims would not have been the proper subject of an action under Section 7-l-90(a).

Thus, Section 7-l-90(a) does not displace Plaintiffs state-law claims or otherwise constrain the Court’s jurisdiction. Insofar as Defendants’ Motions to Dismiss (dkt. nos. 20, 24, 52, 56) seek dismissal on this basis, those Motions, are DENIED.

II. Dismissal for Failure to State a Claim

Defendants also move to dismiss pursuant to Rule 12(b)(6), arguing that Plaintiff fails to state any claim for relief against them. See Dkt. Nos. 16, 21, 24, 50-52, 56. Taken together, Defendants have filed Motions challenging the legal sufficiency of Plaintiffs pleading of all counts other than Count V of the Amended Complaint. See id.

A. Count I: Fraudulent Transfer

Count I of Plaintiffs Amended Complaint seeks relief from PBI, the Bank, and John Does 1-50 on the basis of an allegedly fraudulent transfer under Georgia’s Uniform Fraudulent Transfer Act, O.C.G.A. §§ 18-2-70 to -81 (the ‘UFTA‘). Dkt. No. 49, ¶¶ 111-26.

The UFTA ‘allow[s] courts to set aside transfers made ’with actual intent to hinder, delay, or defraud’ creditors' as well as “transfers indicative of fraud even though actual fraud may not be provable.” Kipperman v. Onex Corp., 411 B.R. 805, 828 (N.D.Ga.2009). Under the UFTA, when a plaintiff alleges fraudulent transfer on the basis of actual fraud, the plaintiff must demonstrate that the debtor (a) made a transfer or incurred an obligation and (b) did so “[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor,” as shown through direct evidence or various “badges of fraud.” See O.G.G.A. § 18-2-74(a)(1); Kipperman, 411 B.R. at 829; see also O.C.G.A. § 18-2-74(b) (listing various factors that are considered indicia, or “badges,” of fraud).

By contrast, a plaintiff claiming fraudulent-transfer based, on a theory of constructive fraud must demonstrate that- the debtor (a) made a transfer or incurred an obligation, (b) received “less than reasonably equivalent value” in consideration, and (c) was insolvent at the time of the transfer or obligation or became insolvent as a result thereof. See O.C.G.A. §§ 18-2-74(a)(2), 18-2-75(a) ; Kipperman, 411 B.R. at 828.

However, given the dearth of Georgia case law construing the UFTA’s provisions, “Georgia courts look to the decisions of Other jurisdictions for guidance,” Jones v. Tauber & Balser, P.C., 503 B.R. 162, 182 (N.D.Ga.2013) (alterations omitted) (quoting Truelove v. Buckley, 318 Ga.App. 207, 733 S.E.2d 499, 501 (2012)).

1. Debtor-Creditor Relationship

As an apparent prerequisite to any claim of fraudulent transfer, whether actual or constructive, the parties must share an underlying relationship of debtor and creditor. See O.C.G.A. § 18-2-74(a); see also id. §• 18-2-77 (contemplating that only a “creditor” can obtain relief against a fraudulent transfer). The UFTA defines “creditor” as “a person who has a claim,” and “debtor” as “a person who is liable on a claim.” Id. § 18-2-71(4), (6). A “claim,” in turn, is defined as any “right to payment, whether or not the right is reduced to judgment, liquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” Id. § 18-2-71(3); see also Kipperman, 411 B.R. at 832 (“Under Georgia law a creditor relationship arises when ‘one person, by contract or by law, is liable and bound to pay to another an amount of money, certain or uncertain.’ ” (quoting Beeson v. Crouch, 227 Ga.App. 578, 490 S.E.2d 118 (1997))).

Plaintiff makes a plausible showing that a debtor-creditor relationship existed between PBI and Plaintiff, a fact which PBI does not appear to contest. Indeed, in the Amended Complaint, Plaintiff alleges that PBI “took advantage of the TruPS financing structure by issuing TruPS securities through the ... Trust” and that Plaintiff “is the beneficial owner of 100% of the TruPS and is entitled to all funds paid pursuant to the TruPS.” Dkt. No. 49, ¶¶ 31, 36; Plaintiff