JACKSONVILLE — A Florida court has found no evidence that a woman is part of a RICO enterprise as claimed by a creditor trying to collect on her husband's debt.
Abdullah M. Al-Rayes, a creditor, sued Ben Willingham in 2006. Al-Rayes alleged several fraud-based claims related to purchases made by Willingham and several of his corporate entities.
The parties appeared to solve the conflict in 2007 when Willingham agreed to pay the creditors $25,707,605; however, creditors have only been able to collect $39,943.81 from Ben Willingham.
As a result, the creditors sued his wife, Erika Willingham, claiming she helped her husband plan a fraud.
The creditors said the plan was “designed to conceal Willingham's assets in order to hinder, delay or impede plaintiff’s ability to collect on the amount due under consent judgment.”
In 2008, the creditors deposed Ben Willingham to get information about his assets. During this deposition, Ben Willingham disclosed the existence of three USAA Federal Savings Bank accounts, which he said he jointly owned with Erika Willingham.
Ben Willingham testified that he did not have any accounts or assets in Switzerland, where Erika Willingham is from and where the couple previously lived.
He said, however, that Erika Willingham possessed at least one Swiss bank account over which she had sole control and said she made regular wire transfers from that account to the USAA accounts to help pay for the couple’s living expenses. The account was a trust fund set up by her parents, according to court documents.
Later in 2008, Erika Willingham testified that she was unaware of any accounts aside from the USAA accounts and she did not have any other bank accounts in her individual name.
She added that her husband was primarily responsible for managing the couple’s finances and paying the bills, including mortgage payments. In regards to whether Erika Willingham owned the couple’s then-home, she said the house was in her name alone, but she could only “guess” that the mortgage was as well.
A review of the mortgage agreement showed that both Ben and Erika Willingham signed the document, according to court documents.
On Feb. 17, 2011, Ben Willingham filed a Chapter 7 bankruptcy action. In their continued effort to collect what was owed to them, creditors began an adversary proceeding in the bankruptcy action.
In connection to the bankruptcy action, creditors deposed Erika Willingham, who testified that she did not have any funds in Switzerland, and that the only transfers made from Switzerland to the USAA accounts were her and her husband’s Swiss-equivalent Social Security payments.
When she was shown wire transfers to the USAA account from an account in Switzerland, she said she was unaware of the account and she had given her husband complete control over the money she inherited from her parents.
In 2012, Ben Willingham said the couple had no significant assets and a combined average monthly income of $4,062. However court documents showed the couple transferred $127,346.25 through wire from Erika Willingham’s Swiss accounts to the Naval Continuing Care Retirement Foundation.
“These transfers were not disclosed to creditors or the bankruptcy court,” the court documents said.
The documents showed numerous other occasions where the couple made transfers without disclosing to creditors or the bankruptcy court.
As a result, creditors claimed Erika Willingham had committed conspiracy to violate the RICO Act, fraud, fraudulent concealment and negligent misrepresentation.
Erika Willingham said, however, that the evidence failed to show the existence of a RICO enterprise. She said the evidence only showed that she and her husband pay part of their living expenses with money obtained from her off-shore accounts, which “does not rise to the level of a RICO Act criminal ‘enterprise.’”
Although the U.S. District Court for the Middle District of Florida acknowledged that Ben Willingham appeared to be trying to hide his income and assets from creditors, the court sided with Erika Willingham, saying it dismissed the creditors’ RICO claims because the “creditors fail to present any evidence from which a reasonable juror could find the existence of a RICO enterprise.”
The court also dismissed the conspiracy claims, saying “Erika Willingham may have conspired with her husband to commit fraud, but creditors have not shown that Erika Willingham agreed to engage in the ongoing conduct of an enterprise through a pattern of racketeering activity.”