203330P.pdf   04/21/2022  Douglas Kelley  v.  Safe Harbor Managed Acct. 101
   U.S. Court of Appeals Case No:  20-3330
   U.S. District Court for the District of Minnesota   
   [PUBLISHED] [Shepherd, Author, with Colloton and Kelly, Circuit Judges] 
   Bankruptcy Case - Avoidance of transfer. Trustee sought to recover $6.9 
   million from Safe Harbor. Safe Harbor claimed funds were settlement 
   payments or transfers in connection with a securities contract made by or 
   to a financial participant under section 546(e). The bankruptcy court 
   denied a motion to dismiss. The district court agreed with Safe Harbor 
   that the transfer was from a financial institution, the note purchase 
   agreement was a securities contract and the transfers were in connections 
   with the note purchase agreement. The trustee appeals. The district court 
   did not err in determining that a customer of a financial institution may 
   qualify as a financial institution if the intermediary bank is acting as 
   agent for the customer during the transaction. The trustee's argument that 
   the district court failed to determine whether Wells Fargo was a custodian 
   is presented for the first time on appeal and will not be considered. 
   Although the district court erred in confusing two entities ( Metro and 
   MGC Finance) in determining who was a party to the Notes Purchase 
   Agreement, that error is not dispositive of whether the transfers were 
   made in connection with a securities contract and requires the district 
   court on remand to examine the facts and decide whether transfers from MGC 
   Finance were in connection with the Note Purchase agreement even though it 
   was not a party to that agreement.