223 F.3d 1296 (11th Cir. 2000)
In re:  OLD NAPLES SECURITIES, INC., Debtor.Theodore H. Focht, Securities Investor Protection Corp., Plaintiffs-Appellants,v.Kevin Heebner, Eileen C. Brown, Merritt W. Brown, Defendants-Appellees.
No. 99-2510.
United States Court of Appeals, Eleventh Circuit.
August 23, 2000.September 5, 2000.

[Copyrighted Material Omitted][Copyrighted Material Omitted]
Appeal from the United States District Court for the Middle District of Florida.(No. 98-01661-CIV-T-17E), Elizabeth A. Kovachevich, Chief Judge.
Before BLACK, CARNES and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:


1
In this appeal, we determine whether clients of an insolvent brokerage qualify  as "customers" under the Securities Investor Protection Act ("SIPA" or "the  Act"), 15 U.S.C.  78aaa-78lll, entitling them to funds from the brokerage's  estate and, if necessary, the Securities Investor Protection Corporation  ("SIPC"). The bankruptcy and district court each concluded that the clients had  deposited cash with Old Naples Securities for the purpose of investing in  securities, and were therefore "customers" entitled to the protection of SIPA  when the court-appointed Trustee liquidated the brokerage's assets. Discerning  no clear error in the district court's findings of fact, and based upon our  legal analysis, we affirm the district court and hold that the clients were  customers of Old Naples Securities.

I. Background and Procedural History

2
Old Naples Securities was a securities broker-dealer, a member of the SIPC and  registered with the SEC. Specifically, Old Naples Securities was an "introducing  broker"; a separate clearing broker, Howe Barnes, carried and maintained the  accounts of Old Naples Securities' clients. Old Naples Securities was based in  Naples, Florida, with branch offices in Wyomissing and Bethlehem, Pennsylvania.  James Zimmerman was the sole shareholder and principal of Old Naples Securities.  He was also the owner and principal of Old Naples Financial Services,1 a  separate company that was not a securities brokerage. Daniel Shaffer ran the  Wyomissing office, and all of the claimants in this case were his clients.


3
From the time Zimmerman bought Old Naples Securities in 1992, the brokerage was  in financial difficulty. Increasingly desperate to pay outstanding debts and to  cover other obligations, Zimmerman began what, in effect, was a "Ponzi scheme."  In 1995 and 1996, Zimmerman raised money from investors in Florida and  repeatedly asked his Pennsylvania branch managers to raise funds from their  clients. Zimmerman used some of these contributions to pay Old Naples  Securities' expenses, and he diverted some of the funds for his personal use. He  used other contributions to pay back the principal and interest owed to earlier  investors. By the summer of 1996, Zimmerman was unable to cover substantial  payments owed to his Pennsylvania brokers and their investors.


4
Congress passed SIPA in 1970 for just this situation: to protect investors when  their brokerages fail. The statute established the SIPC to maintain a fund for  investor protection, oversee the liquidation of brokerages in a manner similar  to bankruptcy proceedings, and, under certain circumstances, reimburse customers  of a failed brokerage. See Securities Investor Protection Corp. v. Pepperdine  Univ. (In re Brentwood Sec., Inc.), 925 F.2d 325, 327 (9th Cir.1991); SEC v.  Ambassador Church Fin./Dev. Group, Inc., 679 F.2d 608, 609-10 (6th Cir.1982). On  August 29, 1996, the SIPC filed an application in the United States District  Court seeking a protective order against Old Naples Securities. The court found  that the brokerage's customers needed the protection afforded by SIPA, appointed  Focht as Trustee to liquidate Old Naples Securities' assets, and removed the  case to bankruptcy court.


5
SIPA permits "customers," as defined by the Act, to file claims with the Trustee  for any outstanding obligations by the brokerage. "Customers" include those who  have entrusted securities to the brokerage in the ordinary course of its  business and those who have deposited cash with the brokerage for the purpose of  purchasing securities.2 The Trustee determines whether a claim is covered by  SIPA and should be paid; claimants can then file an objection to the Trustee's  determination in the bankruptcy court. That is what happened in this case.


6
Kevin Heebner, Eileen Brown, and her son Merritt Brown, III, filed claims for  losses resulting from their unwitting participation in Zimmerman's Ponzi scheme.  In December 1995, Shaffer had convinced Heebner to invest $50,000 for one month  with a return of ten percent. As promised, Heebner received a check for $55,000  in January 1996. Shaffer repeated the offer the next month, and Heebner invested  $80,000. Approximately a month later, Heebner recouped his $80,000 investment  and $8,000 in interest. In April, Shaffer presented Heebner with an opportunity  to invest $100,000 for three months with an annualized return of eighteen  percent. Heebner did so, and "rolled over" the investment for an additional  three months at an interest rate of twenty-four percent annualized. In August  1996, however, Heebner learned that Zimmerman had misappropriated his money, and  he subsequently filed a claim with the Trustee for $100,000.


7
The Brown family had a similar experience. Beginning in July 1995, Merritt  Brown, Jr., invested increasing amounts of money at Shaffer's behest in the name  of his wife, Eileen Brown. Weeks after each investment, funds representing the  principal and interest were deposited in Eileen Brown's account with Howe  Barnes. Contacted by Shaffer in January 1996, Merritt Brown, Jr., invested  $500,000 on behalf of his wife; three months later he invested $110,000 on  behalf of his son, Merritt Brown, III. Eileen and Merritt Brown, III, received  interest payments over the course of the summer, but in August Shaffer informed  the Browns that Zimmerman had stolen their money.


8
According to Heebner and the Browns, Shaffer had told them Zimmerman would use  their money to buy bonds, and they understood that the bonds would be purchased  in their names. According to Merritt Brown, Jr., Shaffer explained that  Zimmerman had opportunities to purchase discounted bonds and resell them quickly  at near face value. Shaffer, however, never identified the specific bonds that  Heebner and the Browns supposedly were purchasing.


9
Shaffer presented these investment opportunities in his capacity as an Old  Naples Securities broker, and Heebner and Merritt Brown, Jr., claim they thought  the investments would be purchased through Old Naples Securities. Merritt Brown,  Jr., made the investment on behalf of his son through a check payable to Old  Naples Securities, but pursuant to Shaffer's instructions, Heebner and Eileen  Brown's investments were made by way of a wire transfer to Old Naples Financial  Services. All of the claimants received monthly statements from Old Naples  Financial Services showing the amount invested and an interest rate of  twenty-four percent. Merritt Brown, Jr., also received a letter in February 1996  from Zimmerman on Old Naples Securities letterhead which stated:


10
This letter is notification that all money loaned to Olde Naples Financial    Services, Inc. and Old Naples Securities, Inc. will be held in an escrow    account. The money will only be used as [an] escrow fund to raise net capital    in the firm and I will guarantee this as owner of the company.3


11
Merritt Brown, Jr., claims that he spoke with Shaffer about the letter, and that  Shaffer assured him that his money was used to buy bonds, that the investment  was insured, and that Brown owned the bonds and would be able to obtain the  paper certificates.


12
The Trustee denied the claims of Heebner and the Browns on the ground that they  did not qualify as "customers" under SIPA. The bankruptcy court disagreed,  concluding that the claimants had deposited funds with Old Naples Securities for  the purchase of securities.4 The district court summarized the bankruptcy  court's factual findings as follows: (1) neither Heebner nor Merritt Brown, Jr.,  had any reason to know that they were not dealing directly with the debtor  brokerage when they wired funds to Old Naples Financial Services; (2) the  claimants entrusted money for the purpose of purchasing bonds of some sort; (3)  these transactions had the characteristics, at least from the claimants'  perspective, of a typical fiduciary relationship between a broker and client;  and (4) the claimants had no intention of lending money to Zimmerman or his  corporations.5 Admittedly, some statements in the bankruptcy court's order are  in tension with those findings. For example, the court stated in its order that  the investments "could be seen as a joint venture because Zimmerman and the  Claimants were to share the profit."6 Nonetheless, the district court affirmed  the bankruptcy court's order. Focht and the SIPC now appeal.

II.Discussion

13
Focht and the SIPC argue that, for the purpose of their claims, neither Heebner  nor the Browns qualify as "customers" within the meaning of SIPA for three  reasons. First, Heebner and Eileen Brown (through her husband) wired funds to  Old Naples Financial Services rather than Old Naples Securities, the debtor  brokerage. Second, Focht and the SIPC contend that claimants' investments were  not in "securities" as defined by SIPA; as Appellants characterize it, Heebner  and the Browns either lent money to Zimmerman or participated in an investment  fund. Finally, Focht and the SIPC claim that because the investments promised  such a high return and were so poorly documented, they cannot be considered  within Old Naples Securities' "ordinary course of business" and therefore cannot  form the basis of a SIPA customer claim. We consider each of these arguments in  turn.7


14
We review the bankruptcy court's factual findings for clear error, Green Tree  Acceptance, Inc. v. Calvert (In re Calvert), 907 F.2d 1069, 1071 (11th  Cir.1990), but whether or not the facts establish that Heebner and the Browns  were customers of Old Naples Securities in regard to their claims is a question  of law that we review de novo, see Securities Investor Protection Corp. v. Wise  (In re Stalvey & Assocs.), 750 F.2d 464, 468 (5th Cir.1985).


15
A. Did Heebner and Eileen Brown "Deposit Cash with the Debtor"?


16
A claimant is only a "customer" protected by SIPA in regard to a claim for cash  entrusted to a brokerage if he or she "deposited [the] cash with the debtor." 15  U.S.C.  78lll(2) (emphasis added). Focht and the SIPC argue that because  Heebner and Eileen Brown wired funds to Old Naples Financial Services rather  than Old Naples Securities, they do not qualify.8 Whether a claimant "deposited  cash with the debtor," however, does not (as Focht and the SIPC suggest) depend  simply on to whom the claimant handed her cash or made her check payable, or  even where the funds were initially deposited. Instead, the question is whether  there was "actual receipt, acquisition or possession of the property of a  claimant by the brokerage firm under liquidation." In re Stalvey, 750 F.2d at  469 (quoting SEC v. Kenneth Bove & Co., 378 F.Supp. 697, 700 (S.D.N.Y.1974)).  Thus, courts have held that a claimant who delivered a note payable to a broker  personally, rather than to the brokerage, could qualify as a "customer"  protected by SIPA, see Ravis v. Day (In re Investors Sec. Corp.), 6 B.R. 420,  423, 425 (Bankr.W.D.Pa.1980), and that the statute covered claimants when one  brokerage (which later became insolvent) misused their funds held in accounts  with another firm, see In re First State Sec. Corp., 34 B.R. 492, 495-96  (Bankr.S.D.Fla.1983).


17
Claimants who invest with a broker in his individual capacity, rather than as an  agent of the brokerage, are not protected by SIPA. See SEC v. First Sec. of  Chicago, 507 F.2d 417, 422 (7th Cir.1974). Similarly, claimants who invest  directly in a company, bypassing the brokerage altogether, are not protected by  SIPA even if their broker first suggested the investment. See In re Brentwood  Sec., 925 F.2d at 328-29. On the other hand, SIPA protects claimants who attempt  to invest through their brokerage but are defrauded by dishonest brokers. See  id. at 329-30; Securities Investor Protection Corp. v. Waddell Jenmar Sec., Inc.  (In re Waddell Jenmar Sec., Inc.), 126 B.R. 935, 938-39, 942, 946  (Bankr.E.D.N.C.1991); cf. In re Gibralco, Inc., 53 B.R. 324, 329  (Bankr.C.D.Cal.1985) ("The trusting customer is not to be penalized for choosing  a careless, unethical or dishonest broker. The primary purpose of the Act is to  assure the unsophisticated participant in securities transactions that there is  protection when a bad choice of brokers is made.") (quoting Ambassador Church,  679 F.2d at 614). If an investor intended to have the brokerage purchase  securities on her behalf and reasonably followed the broker's instructions  regarding payment, she can be considered a "customer" under SIPA if the  brokerage or its agents then misappropriate the funds. See In re Brentwood Sec.,  925 F.2d at 329-30; First Sec. Co. of Chicago, 507 F.2d at 421-22; In re Waddell  Jenmar Sec., Inc., 126 B.R. at 938-39.


18
In this case, the bankruptcy court noted that "Claimants had no reason to know  that they were not dealing with the Debtor,"9 and this finding was not in error.  Shaffer acted as the agent of Old Naples Securities when he brought the bond  opportunity to the attention of Merritt Brown, Jr., and Heebner, and Shaffer  represented that the bonds would be purchased through Old Naples Securities.10  Claimants followed his instructions for payment. Heebner and the Browns had had  no dealings with Old Naples Financial Services prior to the investments  underlying this litigation, and they had never heard of the company. Heebner did  not notice that the wire instructions were for an entity other than Old Naples  Securities, and he believed that he was sending money to the brokerage.11  Merritt Brown, Jr., did notice, but when he inquired about the discrepancy,  Shaffer assured him that Old Naples Securities and Old Naples Financial Services  were one and the same.12 The letter Zimmerman sent to Merritt Brown, Jr., was on  Old Naples Securities letterhead; it referred to money given to the brokerage  and Old Naples Financial Services to be used by "the firm."13


19
It is also clear that Heebner and Eileen Brown's funds, although initially  deposited with Old Naples Financial Services, were used by, or at least for, Old  Naples Securities. Zimmerman testified that he diverted some of the investors'  money from Old Naples Financial Services for personal use, and he used much of  the money to pay Old Naples Securities' expenses.14 There is ample evidence in  the record of checks, drawn from the account to which Heebner and Eileen Brown  wired their funds, issued to Old Naples Securities and also to cover the  brokerage's obligations.15 Given this evidence, we are satisfied that the debtor  brokerage acquired control over all of the claimants' funds.16


20
B. Did the Claimants Deposit Their Cash "for the Purpose of Purchasing  Securities"?


21
Claimants who have deposited cash with the debtor brokerage qualify as  "customers" under SIPA only if they entrusted the funds "for the purpose of  purchasing securities." 15 U.S.C.  78lll(2). Whether the investment was to be  made in a "security" is a matter of law, because SIPA provides a definition of  the term. See 15 U.S.C.  78lll(14).


22
When a claimant entrusts cash with a brokerage, and the broker misappropriates  the money, courts must determine whether the intended investment as understood  by the claimant would have been in a "security" as defined by SIPA.17 See, e.g.,  Securities Investor Protection Corp. v. C.J. Wright & Co. (In re C.J. Wright &  Co.), 162 B.R. 597, 605-06 (Bankr.M.D.Fla.1993); In re Investors Sec. Corp., 6  B.R. at 425-26.


23
According to Focht and the SIPC, the investment opportunity presented to the  claimants by Shaffer was for Zimmerman to buy bonds in his own name, sharing  profits with the investors. In this view, the claimants were not buying bonds,  but participating in an unregistered "investment plan" or lending money to  Zimmerman, neither of which falls within SIPA's definition of covered  securities.18 Focht and the SIPC point out that the investments were to pay a  fixed rate of interest, that the claimants knew Zimmerman would be the one  actually buying the bonds, and that the claimants did not know in which bonds  they supposedly were investing.


24
The bankruptcy court disagreed with this characterization and made a factual  finding that "the Claimants wired the funds with the intent that the funds be used for the purchase of discount bonds of some sort."19 It is not surprising  that Zimmerman would be the one purchasing the bonds, because he was a  registered broker, and he was the one with the special opportunity to purchase  discounted bonds that could quickly be resold at near face value. There is ample  evidence that the claimants believed Zimmerman would buy the bonds in their  names and for their individual accounts.20 It is true that a fixed rate of  return is often associated with loans, but the bankruptcy court noted that it is  often characteristic of bonds as well.21 Finally, other courts have concluded  that when a claimant deposits cash with his brokerage to make an investment,  SIPA provides protection even if the claimant does not identify specific  securities for his broker to purchase. See Ravis v. Caretti (In re Investors  Sec. Corp.), 30 B.R. 214, 219 (Bankr.W.D.Pa.1983); see also In re C.J. Wright &  Co., 162 B.R. at 606, 608-09 (claimants who invested in debtor brokerage's  "Money Market Club" and "Deposit Account," and who thought their funds would be  used to purchase unnamed certificates of deposit, are entitled to customer  status under SIPA).


25
Investors, of course, must have had some notion of what they wanted their funds  used for; a deposit of funds with only the vaguest instructions to make "stock  market investments" would not qualify as a deposit "for the purpose of  purchasing securities." See In re Waddell Jenmar Sec., Inc., 126 B.R. at 947.  Moreover, although "lack of diligence" does not defeat a claim under SIPA, In re  Gibralco, 53 B.R. at 328-29 (citing Ambassador Church, 679 F.2d at 614),22  willful ignorance on the claimant's part in the face of clear indications that  an investment scheme is suspect may preclude a finding that the claimant  intended to purchase "securities" covered by the Act.


26
Claimants in this case could have been more diligent when presented with an  opportunity promising a high return and requiring an immediate investment; they  could have demanded more information and more thorough documentation of their  investments. Nonetheless, having considered the claimants' testimony concerning  their understanding of the investments at issue here, the testimony of Zimmerman  and Shaffer about their explanation of the investment opportunity, and the  documentary record evidence, we can find no error in the bankruptcy court's  finding that claimants reasonably believed they were buying bonds. Because  SIPA's definition of "securities" includes bonds, see 15 U.S.C.  78lll(14), we  conclude that claimants did deposit their funds with Old Naples Securities for  the purpose of purchasing securities.


27
C. Did the Claimants Deposit Their Cash "in the Normal Course of Business" with    Old Naples Securities?


28
Finally, Focht and the SIPC argue that the claimants are not "customers" as  defined by SIPA because the investments at issue in this case were so unusual,  they cannot be considered a part of Old Naples Securities' "ordinary course of  business" as a brokerage. Focht and the SIPC base this argument on the first  sentence of SIPA's definition of "customer," which states in pertinent part that  "[t]he term 'customer' of a debtor means any person ... who has a claim on  account of securities received, acquired, or held by the debtor in the ordinary  course of its business as a broker or dealer ...." 15 U.S.C.  78lll(2)  (emphasis added).


29
The claims in this case, however, are not based on securities held by Old Naples  Securities. Heebner and the Browns assert claims for cash based on the second  sentence of  78lll (2), which covers "any person who has deposited cash with  the debtor for the purpose of purchasing securities." This sentence does not  include the "ordinary course of business" qualification. When interpreting a  statute, we look first to the plain meaning of its language, see United States  v. Gonzales, 520 U.S. 1, 4-6, 117 S.Ct. 1032, 1034-35, 137 L.Ed.2d 132 (1997),  and "[w]here Congress includes particular language in one section of a statute  but omits it in another section of the same Act, it is generally presumed that  Congress acts intentionally and purposely in the disparate inclusion or  exclusion," see Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300,  78 L.Ed.2d 17 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722  (5th Cir.1972)) (per curiam). In this regard,  78lll(2) is clear: the  definition of "customers" pertaining to claims for cash deposited with a  brokerage does not require a special showing that a claimant entrusted funds  within the ordinary course of the brokerage's business.


30
Such a requirement would be largely superfluous. As discussed above, deposits of  cash must be for the purchase of traditional security instruments. SIPA's  thorough definition of "securities" includes more flexible and amorphous  investments, such as profit-sharing agreements, only if they are registered with  the SEC. See 15 U.S.C.  78lll (14). SIPA also disallows claims based on  transactions with foreign subsidiaries of any SIPC member brokerage and claims  for cash or securities that form a part of the brokerage's capital. See 15  U.S.C.  78lll (2)(A) & (B). Finally, courts have held that SIPA only provides  claimants with protection for transactions with indicia of a fiduciary  relationship. See Tew v. Resource Management (In re ESM Gov't Sec., Inc.), 812  F.2d 1374, 1376 (11th Cir.1987); SEC v. F.O. Baroff Co., 497 F.2d 280, 283-84  (2d Cir.1974). These restrictions help ensure that SIPA protects only claimants  who sought legitimate brokerage services.


31
Focht and the SIPC acknowledge that no court has disallowed a claim under SIPA  on the grounds that the underlying transaction was not in the brokerage's  ordinary course of business, and no court has applied the requirement to claims  for cash. We decline to be the first.

III. Conclusion

32
We AFFIRM the district court order allowing the claims of Kevin Heebner, Eileen  Brown, and Merritt Brown, III, in the Old Naples Securities SIPA liquidation  proceedings.



NOTES:


1
 Also referred to in the record as Olde Naples Financial Services (emphasis  added).


2
 The term "customer" of a debtor means any person ... who has a claim on account of  securities received, acquired, or held by the debtor in the ordinary course of  its business as a broker or dealer.... The term "customer" includes ... any  person who has deposited cash with the debtor for the purpose of purchasing  securities....
15 U.S.C.  78lll(2)(2000).


3
 Trustee's Ex. 13.


4
 The bankruptcy court determined that Heebner had a valid claim for cash in the  amount of $87,000; Eileen Brown had a valid claim for cash in the amount of  $335,000; and Merritt Brown, III, had a valid cash claim for $103,400. Order on  Objections to Trustee's Determinations of Claims at 13, in R1, Tab 1.


5
 See Order on Appeal at 3-4, in R1, Tab 18.


6
 Order on Objections to Trustee's Determinations of Claims at 7, in R1, Tab 1.  Similarly, the court stated that "[t]he 'plan' was that Zimmerman would purchase  bonds at a discount, which he would later sell and then split the profit with  the investor." Id. at 5.


7
 Claimants also contend that this appeal was untimely filed. We consider this  issue briefly as part of our ongoing responsibility to ensure our jurisdiction  over an appeal. Focht and the SIPC mistakenly filed notice of their appeal with  the clerk's office for the bankruptcy court in the Middle District of Florida;  the notice did not reach the district court clerk until March 16, 1999, one day  after the standard thirty day period for filing an appeal had expired. See Fed.  R.App. P. 4(a)(1). Focht and the SIPC immediately moved the district court for  either a finding that the appeal had been timely filed or for an extension of  time to file the appeal on the ground of excusable neglect. See Fed. R.App. P.  4(a)(5)(A). The court granted the motion, and we review orders granting  additional time for appeal for abuse of discretion. See Advanced Estimating  Sys., Inc. v. Riney, 77 F.3d 1322, 1325 (11th Cir.1996). Given that Focht and  the SIPC initially filed their appeal (albeit in the wrong court) within the  thirty days allowed by Rule 4(a)(1), that the district court received the notice  of appeal only one day late, and that the misfiling apparently resulted from  clerical error, we conclude that any neglect on Appellants' part was excusable.  See id. (listing the factors a court should consider when determining whether a  party's neglect in filing an appeal within thirty days was "excusable").


8
 Heebner and Eileen Brown argue that the bankruptcy court's conclusion that they  deposited funds with Old Naples Securities is a factual finding, reviewed only  for clear error. We agree with Focht and the SIPC, however, that this is a legal  rather than factual conclusion, for the bankruptcy court only reached it by  first determining that Old Naples Securities and Old Naples Financial Services  should be viewed as a single entity for the purpose of this litigation.


9
 Order on Objections to Trustee's Determinations of Claims at 8, in R1, Tab 1.


10
 See Final Evidentiary Hr'g (Dec. 9, 1997) at 20, 25, 29, 38-39, in R1, Tab 1.  Even Shaffer's business card stated, "Securities by licensed individuals offered  through Old Naples Securities, Inc." R, Claimants' Ex. 1.


11
 See Final Evidentiary Hr'g (Dec. 9, 1997) at 38.


12
 See id. at 114. Shaffer corroborated Brown's testimony, acknowledging that he  believed and told his investors that Old Naples Securities and Old Naples  Financial Services were a single entity. See Shaffer Dep. at 40-42, in Trustee's  Ex. 10.


13
 See R, Trustee's Ex. 13.


14
 See Sworn Statement of Zimmerman at 139-40, 313-16 in Claimants' Ex. 6.


15
 See id. at 130-84.


16
 The parties contest whether the "alter ego" theory applies in SIPA proceedings,  that is, whether the court can consider funds held by Old Naples Financial  Services to be in the possession of Old Naples Securities because the companies  are in effect a single entity. We need not dwell on whether Old Naples Financial  Services' assets in general are deemed to belong to Old Naples Securities,  however, because, as the text makes clear, the funds of the individual claimants  in this case were used by the owner of Old Naples Securities for the benefit of  Old Naples Securities.


17
 By contrast, if claimants entrusted securities to the brokerage, courts can  discern whether SIPA provides coverage from the actual characteristics of those  securities and the arrangement with the brokerage. See, e.g., In re Brittenum &  Assocs., Inc., 82 B.R. 64, 65, 68 (Bankr.E.D.Ark.1987). It also is possible to  look at the arrangement objectively if claimants entrusted cash with a brokerage  and the money was not misappropriated. Typically in this scenario, either (1)  the broker actually purchased an investment for the claimant, in which case  there was no longer a SIPA claim for cash, see, e.g., In re Omni Mut., Inc., 193  B.R. 678, 681 (S.D.N.Y.1996), or (2) the deposit of cash was for some purpose  other than purchasing securities for the claimant, and no fiduciary relationship  was established, see, e.g., Tew v. Resource Management (In re ESM Gov't Sec.,  Inc.), 812 F.2d 1374, 1376-77 (11th Cir.1987).


18
 An "investment contract or certificate of interest or participation in any  profit-sharing agreement" only falls within SIPA's definition of securities "if  such investment contract or interest is the subject of a registration statement  with the Commission pursuant to the provisions of the Securities Act of 1933."  15 U.S.C.  78lll(14). Cash that is simply lent to the brokerage cannot form the  basis of a SIPA customer claim because the statute's definition of "customer"  excludes individuals whose claims are for "cash ... which ... is part of the  capital of the debtor." 15 U.S.C.  78lll(2)(B). Case law has established that  individuals must have a fiduciary relationship, rather than a creditor-debtor  arrangement, with their brokerage to state a claim under SIPA. See Tew v.  Resource Management (In re ESM Gov't Sec., Inc.), 812 F.2d 1374, 1376 (11th  Cir.1987); SEC v. F.O. Baroff Co., 497 F.2d 280, 283-84 (2d Cir.1974).


19
 Order on Objections to Trustee's Determinations of Claims at 10, in R1, Tab 1.


20
 See Final Evidentiary Hr'g at 36, 38-39, 137, 146, in R1, Tab 1.


21
 See Order on Objections to Trustee's Determination of Claims at 10, in R1, Tab  1, Docket Entry 165.


22
 See also In re C.J. Wright & Co., 162 B.R. at 607.


