Levy Non-Money Remedies Mainuvta07bremedylevy
JUDGMENT CREDITOR'S LEVY § 7(b)
(b) If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.
Reporter's Comment to § 7(b) cmt. 5.
The provision in subsection (b) for a creditor to levy execution on a transferred asset continues the availability of a remedy provided in § 9(b) of the Uniform Fraudulent Conveyance Act. See, e.g., Doland v. Burns Lbr. Co., 156 Minn. 238, 194 N.W. 636 (1923); Montana Ass’n of Credit Management v. Hergert, 181 Mont. 442, 449, 453, 593 P.2d 1059, 1063, 1065 (1979); Corbett v. Hunter, 292 Pa.Super. 123, 128, 436 A.2d 1036, 1038 (1981); see also American Surety Co. v. Conner, 251 N.Y. 1, 6, 166 N.E. 783, 784, 65 A.L.R. 244, 247 (1929) (“In such circumstances he [the creditor] might find it necessary to indemnify the sheriff and, when the seizure was erroneous, assumed the risk of error”); McLaughlin, Application of the Uniform Fraudulent Conveyance Act, 46 Harv.L.Rev. 404, 441-42 (1933).
If the Transferee does not voluntarily turn over the asset, the Court can allow the creditor to enforce the judgment directly against the asset (or its proceeds if it has been sold). However, this section and the Reporter's citation to the American Surety Co. v. Conner opinion seem to indicate that this provision authorizes a creditor to levy (without filing a fraudulent transfer lawsuit) on the transferred asset, and then the voidable transaction issue is then resolved at the hearing on the levy. Nobody seems certain how this works in actual practice.
BURDEN OF PROOF
(g) The following rules determine the burden of proving matters referred to in this section:
(1) A party that seeks to invoke subsection (a), (d), (e), or (f) has the burden of proving the applicability of that subsection.
(2) Except as otherwise provided in paragraphs (3) and (4), the creditor has the burden of proving each applicable element of subsection (b) or (c).
(3) The transferee has the burden of proving the applicability to the transferee of subsection (b)(1)(ii)(A) or (B).
(4) A party that seeks adjustment under subsection (c) has the burden of proving the adjustment.
The burden of proving entitlement to a money judgment is on the Creditor.
STANDARD OF PROOF
(h) The standard of proof required to establish matters referred to in this section is preponderance of the evidence.
Prefatory Note (UVTA 2014). Evidentiary Matters.
New §§ 4(c), 5(c), 8(g), and 8(h) add uniform rules allocating the burden of proof and defining the standard of proof with respect to claims for relief and defenses under the Act.
Language in the former comments to § 2 relating to the presumption of insolvency created by § 2(b) has been moved to the text of that provision, the better to assure its uniform application.
LEVY TOPICS AND OPINIONS