Common Law Fraudulent Transfer
COMMON LAW FRAUDULENT TRANSFER
The UVTA does not displace other law relating to fraudulent transfers, as UVTA § 12 makes clear. In many states, common law fraudulent transfer survives as a viable cause of action. While each state may vary its common law fraudulent transfer claim slightly, the following is a good example of how common law fraudulent transfer is stated:
“A party alleging a fraudulent transfer or conveyance under the common law bears the burden of proving either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meeting his obligations or (2) that the conveyance was made with a fraudulent intent in which the grantee participated.” Consedine v. Demeusy, 2015 WL 8487881, at *2 (Conn.Super., Nov. 17, 2015).
Common law fraudulent transfer is, in fact, often plead as an alternative cause of action to the UVTA claim. While usually redundant, there may be some instances where the common law fraudulent transfer claim survives, such as that it may have a longer effective Statute of Limitations than under the extinguishment provisions of the UVTA, since in some states the Statute of Limitations for a common law fraudulent transfer action does not begin to run until the creditor obtains a judgment against the debtor -- which may result in a far longer limitations period than the extinguishment period of the UVTA.
DO NOT PRESUME THAT COMMON LAW FRAUDULENT TRANSFER IS THE SAME AS THE UVTA, BECAUSE IT ISN'T. Common law fraudulent transfer law comes with a lot of baggage that makes it a difficult claim for creditors to assert, which is the reason that the UFCA was adopted in 1914 in the first place. Creditors of a common law fraudulent transfer case may find heightened pleading burdens, higher standards of proof, additional burdens of proof shifted to the creditor, and numerous other landmines.