     Case: 18-10056   Document: 00514979969   Page: 1   Date Filed: 06/03/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                        Fifth Circuit

                                                                       FILED
                               No. 18-10056                          June 3, 2019
                                                                    Lyle W. Cayce
                                                                         Clerk
In the Matter of: LIFE PARTNERS HOLDINGS, INCORPORATED

                  Debtor.
---------------------
LIFE PARTNERS CREDITORS' TRUST; ALAN M. JACOBS,

             Appellants,

v.

ACCELERATING WEALTH, L.L.C.; A. CHRIS OSTLER; ADRIANNE
SCHWANKE; AMERICAN MONEY GROUP, INCORPORATED; B. CLIFF
WRIGHT; BARRY ENGOLIO; BRAD WILEMON; BRIAN MURRAY; BRUCE
C. SANDELIN; CALIFORNIA RETIREMENT PLANS, L.LC.; CHARLES
LANZA; CHARTER FINANCIAL GROUP, L.L.C.; CODY BIGGS; CUB
INVESTMENTS; RONALD W. HUCKABEE, JR.; D;G INVESTMENT
GROUP, INCORPORATED; DAVID WATLINGTON; DON WELLS;
DONALD BERGIS; FINANCIAL NECESSITIES NETWORK,
INCORPORATED; FRANK BENISCHECK; SCOTT SHEPARD; GREGG M.
CUNE; GUY SMITH; JARED M. ELSON; JERI NIEMEYER; KENNETH
NELSON; LIFE SETTLEMENT INVESTMENT GROUP; RETIREMENT
RESCUE, L.L.C.; ROBERT QUICK; RUSSELL NIEMAN; STEVE
CHAMBERS; STEVE RINGO; TOMMY CAPERTON,

            Appellees.
_____________________________________________________________________

In the Matter of: LPI FINANCIAL SERVICES, INCORPORATED

                 Debtor.
---------------------
LIFE PARTNERS CREDITORS' TRUST; ALAN M. JACOBS,

            Appellants,
     Case: 18-10056      Document: 00514979969         Page: 2    Date Filed: 06/03/2019



                                      No. 18-10056
v.

GREGG M. CUNE

             Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:16-CV-266
                              USDC No. 4:17-CV-108


Before ELROD, HIGGINSON, and ENGELHARDT, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:*
       This case is one of five related adversary proceedings arising out of the
Chapter 11 bankruptcies of Life Partners Holdings, Inc.; Life Partners, Inc.
(LPI); and LPI Financial Services (collectively, the “LP Entities”), in which the
Life Partners Creditors’ Trust asserts claims against various groups of LP
Entities Licensees. We described the factual background and much of the
relevant procedural history in our recent opinion in Life Partners Creditors’
Trust v. Cowley, No. 17-11477 (5th Cir. May 31, 2019). We note one procedural
difference that is material to the disposition of Count 11 in Creditors’ Trust’s
pleadings: unlike in Cowley, Creditors’ Trust sought leave to amend Count 11
in a written motion before the district court’s judgment of dismissal. Thus, the
Federal Rule of Civil Procedure 59(e) standard does not apply to that claim,
and the proposed amended complaint demonstrates that repleading would not



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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     Case: 18-10056       Document: 00514979969          Page: 3     Date Filed: 06/03/2019



                                       No. 18-10056
have been futile. The district court therefore abused its discretion in declining
to grant leave to amend Count 11. See Brown v. Taylor, 911 F.3d 235, 247 (5th
Cir. 2018) (district court abused its discretion in denying leave to amend where
plaintiff offered a proposed amendment that would not be futile and had not
repeatedly failed to cure deficiencies).
       Beyond the above distinction, the arguments before the court in this case
are substantially the same as those in Cowley, and the live pleadings are
parallel in all important respects. Accordingly, we AFFIRM the district court’s
judgment of dismissal as to Counts 5, 8, and 12. However, we REVERSE the
dismissal of Counts 1–4, 1 6, 9, 10, and 11 and REMAND them for further
proceedings consistent with this opinion.




       1 As in Cowley, we affirm the district court’s dismissal of Count 2 only as to transfers
from Life Partners Holdings that occurred before January 20, 2011, and transfers from LPI
and LPI Financial Services that occurred before May 19, 2011. We also affirm the district
court’s dismissal of Counts 3 and 4 only as to transfers made by Life Partners Holdings before
January 20, 2013, and transfers made by LPI and LPI Financial Services before May 19,
2013.

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