Voidable Transactions Article by Jay Adkisson for 2021

Article 2021 Articles2021

Ninth Circuit Agrees That Damages Is Not An Element Of A Fraudulent Transfer Case In Medina
♦ Summary: (1) Key Points: California Community Property: The article explains the concept of community property in California, where assets acquired during marriage are generally considered joint property unless they are classified as separate property. Transmutation Agreements: These agreements allow couples to convert community property into separate property, potentially reducing the exposure of those assets to creditors. Fraudulent Transfers: The article discusses how transmutation agreements can be challenged as fraudulent transfers under the Uniform Voidable Transactions Act (UVTA) if they are intended to hinder creditors. Damages Not Required: The Ninth Circuit Court of Appeals affirmed the established law that damages are not a necessary element to prove a fraudulent transfer claim. Money Judgments Available: While damages are not awarded, the UVTA allows for money judgments to be obtained against the transferee, calculated based on the value of the transferred asset. (1) Additional Insights: Importance of Clear Explanation: The article emphasizes the need for creditors to clearly explain to the court how money judgments work under the UVTA, as this concept can be confusing for some judges. Potential for Abuse: The case highlights the potential for abuse of transmutation agreements, particularly when one spouse is facing financial difficulties. Bankruptcy Trustee's Role: The bankruptcy trustee's role in this case demonstrates the importance of their responsibility to protect the interests of creditors in bankruptcy proceedings. ♦

Residence Underwater Due To Liens Not An Asset That Could Be Fraudulently Transferred In Tootian
♦ Key Takeaways: (1) UVTA and Asset Definition: The case highlights the importance of the timing of asset valuation under the Uniform Voidable Transactions Act (UVTA). The value of an asset is determined at the time of the transfer, not at a later date. This means that any appreciation in value after the transfer is irrelevant for purposes of determining whether a fraudulent transfer occurred. (2) Equity and Homestead Exemption: Creditors can only recover the debtor's equity in a property, less any homestead exemption. If the value of the property, plus the homestead exemption, is less than the amount of bona fide loans against the property, there is no equity for the creditor to recover. (3) Proof of Fraudulent Transfer: The trustee in this case failed to prove that the liens on the property were not bona fide. They also failed to provide an appraisal of the property at the time of the transfer to demonstrate that there was equity in the property at that time. (4) Importance of Evidence: The case emphasizes the importance of gathering and presenting strong evidence in fraudulent transfer cases. Simply showing that the debtors engaged in shady transactions is not enough. The trustee must prove that the transactions were fraudulent and that the debtor had equity in the property at the time of the transfer. (5) Asset Protection Planning: Asset protection planning should take into account the potential for appreciation in value. If a property is likely to appreciate, it may be necessary to take steps to protect the equity that will be created. (6) Debtor's Tactics: The debtors in this case engaged in a number of questionable transactions in an attempt to protect their property. This highlights the need for creditors to be vigilant in identifying and challenging such tactics. (7) Court's Approach: The court's decision was clear on the substantive issues but lacked clarity in its recitation of the facts. This raises questions about the court's approach to complex cases involving multiple transactions and parties. ♦

UVTA Held Not To Require A Third-Party Transferee In Nagel
♦ This case presents a fascinating legal battle over fraudulent transfers and asset protection strategies. Here's a breakdown of the key points and their implications: (1) The Case: Background: Westen and Lawson sold their mold-infested Brentwood home to Nagel without disclosing the damage. Nagel won an arbitration award but faced difficulties collecting due to Westen and Lawson's asset protection maneuvers. Asset Protection Plan: Westen and Lawson: Moved their LLC to Nevada. Placed sale proceeds in an annuity. Purchased a Texas home with the proceeds (Texas has unlimited homestead exemption). Nagel's Lawsuit: Nagel sued for fraudulent transfer, civil conspiracy, and aiding and abetting, targeting Westen, Lawson, their LLC, their attorneys, and family trusts. Trial Court Ruling: The trial court dismissed Nagel's case, finding no "transfer" under the Uniform Voidable Transactions Act (UVTA). Court of Appeals Decision: The Court of Appeals reversed the trial court, holding that the UVTA allows for a debtor to be the transferee of their own assets. This means that Westen and Lawson's actions, even if they didn't involve a third party, could be considered fraudulent transfers. (2) Key Legal Issues: UVTA and the Definition of "Transfer": The UVTA defines "transfer" broadly, encompassing any method of disposing of or parting with an asset. However, it doesn't explicitly define "transferee." Debtor as Transferee: The Court of Appeals reasoned that the UVTA's purpose is to protect creditors, and a debtor transferring assets to themselves (even if it's to a different legal form or location) can diminish their estate and harm creditors. Public Policy: The Court emphasized the UVTA's goal of preventing debtors from circumventing their obligations through creative asset protection schemes. (3) Implications: Broader Interpretation of UVTA: This case expands the scope of the UVTA, potentially making it easier for creditors to challenge asset protection strategies that involve self-transfers. Challenges to Homestead Exemptions: The case raises questions about the enforceability of homestead exemptions in the face of fraudulent transfer claims. Constructive Trusts: Nagel might attempt to establish a constructive trust over the Texas home proceeds, potentially bypassing the homestead exemption. (4) Future of the Case: Trial: The case will now proceed to trial, where Nagel will have to prove that Westen and Lawson's actions were fraudulent. Texas Law: If Nagel wins, the case may reach the Texas Supreme Court to determine whether a California UVTA judgment can override Texas's unlimited homestead exemption. (5) Overall: This case highlights the ongoing battle between creditors seeking to recover debts and debtors seeking to protect their assets. The Court of Appeals' decision broadens the reach of fraudulent transfer law, potentially impacting future asset protection strategies and raising complex legal questions about the interplay of state laws and homestead exemptions. ♦