CopyCited 100 times | Published | Court of Appeals for the Eleventh Circuit
...The district court never responded specifically to the Schutzmans' motion, but made a fact finding of fraud in its Final Plan. However, the district court did not discuss which facts it used in its analysis or how it found the facts if it did, indeed, find them. 21 Fla.Stat. 726.105(1)(a) lists several factors the court should use in determining the debtor's intent in making the transfer....
...These include the timing of the transfer, whether the debtor was insolvent, whether the debtor removed or concealed assets, whether the transfer occurred shortly before a substantial debt was incurred, and whether the transfer was to an insider. Fla.Stat. 726.105(1)(a)....
CopyCited 81 times | Published | Supreme Court of Florida | 26 Fla. L. Weekly Supp. 416, 2001 Fla. LEXIS 1237, 2001 WL 690070
...ent: Does Article X, Section 4 of the Florida Constitution exempt a Florida homestead, where the debtor acquired the homestead using non-exempt funds with the specific intent of hindering, delaying, or defrauding creditors in violation of Fla. Stat. § 726.105 or Fla....
...We have invoked equitable principles to reach beyond the literal language of the exceptions only where funds obtained through fraud or egregious conduct were used to invest in, purchase, or improve the homestead. [12] *1029 APPLICABILITY OF SECTIONS
726.105,
222.29, AND
222.30 TO THE HOMESTEAD EXEMPTION Section
726.105, Florida Statutes (2000), of the Uniform Fraudulent Transfer Act provides in pertinent part: Transfers fraudulent as to present and future creditors. (1) A transfer made or obligation incurred by a debtor is fraudulent as to a credi...
...sfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (a) With actual intent to hinder, delay, or defraud any creditor of the debtor.... The federal courts which have addressed the applicability of section
726.105 to homestead claims have concluded that it has no effect on the constitutionally created homestead exemption. See In re Levine,
134 F.3d 1046, 1051 (11th Cir.1998) (applying section
726.105 to statutorily-exempt annuities in concluding that Florida law's near absolute protection of legally created exemptions relates to "the constitutionally-protected homestead exemption rather than the statutorily-created exemption for annuities."); In re Young, 235 B.R....
CopyCited 73 times | Published | Supreme Court of Florida | 26 Fla. L. Weekly Supp. 106, 2001 Fla. LEXIS 408, 2001 WL 197031
...ty was obtained with fraudulently acquired funds), review denied,
767 So.2d 459 (Fla.2000); Woodell v. TransFlorida *60 Bank,
717 So.2d 108 (Fla. 4th DCA 1998) (explaining that because of the difficulty in proving actual intent to defraud creditors, section
726.105(2) provides that fraudulent intent may be presumed from evidence of "badges of fraud"); Munim v....
...Erhardt, Florida Evidence, §§ 302.1, 302.2, 303.1, 304.1 (2000 ed.). [21] Notably, Beal Bank does not assert that in this case there was any intent to defraud creditors in the creation or maintenance of the Almands' joint bank accounts with their wives. [22] Section 726.105(1)(a), Florida Statutes (2000), prohibits any transfer made with "actual intent to hinder, delay or defraud" any creditor....
CopyCited 63 times | Published | Court of Appeals for the Eleventh Circuit
...Companies and the Debtors filed for bankruptcy. 3 In this adversary action, the Debtors seek to avoid allegedly fraudulent transfers made by the Debtors to Manklow and Vincens between 1992 and 1995, pursuant to 11 U.S.C. 547 and 548, and Fla. Stat. 726.105(1)(a)-(b)....
CopyCited 59 times | Published | Court of Appeals for the Eleventh Circuit
...ons for error is not barred where a party apprises the trial court of its objections during the charge conference). On the badges of fraud claim, Ethan Allen based its proposed charge on the codification of the “badges of fraud” in Fla.Stat.Ann. § 726.105(2) which lists factors that “may” be considered along with other factors in determining intent. See Fla.Stat.Ann. § 726.105(2) (1988)....
CopyCited 56 times | Published | Court of Appeals for the Eleventh Circuit | 2001 U.S. App. LEXIS 19221, 2001 WL 980640
...§ 678.315 , which entitles “any person against whom the transfer of a security is wrongful for any reason ... [to] reclaim possession of the certificated security;” and, that defendants had defrauded creditors, in violation of Florida’s fraudulent transfer statute, Fla. Stat. § 726.105 ....
CopyCited 54 times | Published | United States Bankruptcy Court, M.D. Florida | 14 Fla. L. Weekly Fed. B 23, 43 U.C.C. Rep. Serv. 2d (West) 23, 2000 Bankr. LEXIS 1352, 2000 WL 1716185
...The unsecured creditors committee seeks to set aside as fraudulent transfers payments that the debtor made to TKA, M & D, Liberty, and the individual defendants pursuant to the provisions of Sections 548 and 550 of the Bankruptcy Code. The committee also seeks the same relief pursuant to Sections
726.105 and
726.106, Florida Statutes....
...ion incurred. (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Id. ( citing § 726.105(2), Fla....
...rman,
926 F.2d at 1249. c. Conclusion. Accordingly, the court determines that the plaintiff has established by a preponderance of the evidence that each transfer at issue here satisfies the elements of Section 548(a)(1)(A) of the Bankruptcy Code and Section
726.105, Florida Statutes, and was a fraudulent transfer actually intended to hinder, delay, or defraud creditors....
...for those transfers. 4. Summary. As the foregoing describes, the plaintiff has proven by a preponderance of the evidence that each transfer at issue in this proceeding satisfies all of the elements of Section 548(a)(1)(A) of the Bankruptcy Code and Section 726.105, Florida Statutes, and is a fraudulent transfer....
...of any of the debtor's transfers found to be preferential or fraudulent in this proceeding. 6. Liability under Florida law. The court determined in Section V.D. above that many of the transfers at issue here were fraudulent transfers under Sections
726.105 and
726.106, Florida Statutes....
...vious portions of this Section V.E. above. Accordingly, the court concludes that the plaintiff has established the defendants' liability under Florida law as follows: TKA and M & D are the first transferees of the transfers avoided under Sections
726.105 and
726.106, Florida Statutes. Liberty, Morrow, Angle, and Woodward, are subsequent transferees other than good faith transferees who took for value of the transfers avoided under Sections
726.105 and
726.106, Florida Statutes....
...editors of the debtor, with aggregate claims that exceed in dollar amount the avoided transfers. The plaintiff is therefore entitled to recover from the defendants only in the amount of the value of the transfers avoided as fraudulent under Sections
726.105 and
726.106, Florida Statutes....
CopyCited 54 times | Published | United States Bankruptcy Court, M.D. Florida | 2002 WL 497034
...The trustee alleges that the commission payments made by the debtor to the Corporate Defendants totaling $569,595.30 are avoidable as actually or constructively fraudulent. The trustee seeks to recover those transfers from Weaver pursuant to Bankruptcy Code, 11 U.S.C. 548(a), and Florida Statutes Sections
726.105(a) and (b),
726.106(1), and
726.108....
...r prior to the filing of the petition for relief. In re Model Imperial, Inc.,
250 B.R. 776, 790-791 (Bankr.S.D.Fla.2000) ( citing Grogan v. Garner,
498 U.S. 279,
111 S.Ct. 654,
112 L.Ed.2d 755 (1991)). Under Florida law and Florida Statutes Sections
726.105 and
726.106, the provisions are very similar but the reach back period to recover avoidable transfers is extended to four years....
...constitute the requisite fraud to set aside a conveyance . . . several of them when considered together may afford a basis to infer fraud." In re Goldberg,
229 B.R. 877, 885 (Bankr.S.D.Fla.1998) (discussing avoidable transfers under Florida Statute
726.105) ( citing General Trading Inc....
...Without question, the debtor paid these commissions with the actual intent to defraud both current and future investors. As such, the trustee has proven by a preponderance of the evidence that the transfers were made with actual fraud and are avoidable under Section 548 of the Bankruptcy Code and Florida Statutes Section 726.105....
...ed by the Corporate Defendants. In Counts 2, 5, 6, 9, 12, and 14, the trustee asserts that the debtor made transfers received by the Corporate Defendants with actual fraudulent intent and that the transfers are avoidable pursuant to Florida Statutes
726.105(1)(a) or Sections 548 and 550 of the Bankruptcy Code, 11 U.S.C. 101, et seq. In Counts 3, 7, 10, and 13, the trustee asserts that the same transfers received by the Corporate Defendants are constructively fraudulent and recoverable pursuant to Florida Statutes
726.105(1)(b),
726.106(1) and
726.108 and Sections 548 and 550 of the Bankruptcy Code....
CopyCited 47 times | Published | United States Bankruptcy Court, N.D. Florida | 21 Collier Bankr. Cas. 2d 277, 1989 Bankr. LEXIS 1006, 1989 WL 67495
...A separate order will be entered in accordance with this opinion. DONE AND ORDERED. NOTES [1] An action under this section is analogous for our purposes to an action under the Florida Uniform Fraudulent Transfer Act, Chapter 726, Florida Statutes. Section 726.105(1)(a) provides as follows: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation incurred, if the debtor made...
CopyCited 45 times | Published | United States Bankruptcy Court, S.D. Florida. | 1999 Bankr. LEXIS 99
...fraudulent conveyance law, which has longer limitation periods. See Fla.Stat.Ann. §
726.110(1) (four year limitation period); see also Govaert v. Piche (In re Piche),
55 B.R. 339, 340 (Bankr. S.D.Fla.1985) (noting that predecessor to Fla.Stat.Ann. §
726.105(1)(a) differs from § 548(a)(1) "only in that the latter is restricted to transfers which occurred within one year before bankruptcy"); Borock v....
...[110] *530 Courts applying these laws, like courts applying section 548(a)(1), rely on the badges of fraud as circumstantial evidence of fraudulent intent. See United States v. Rode,
749 F.Supp. 1483, 1493 (W.D.Mich.1990) (indicia of fraud under UFTA), aff'd,
943 F.2d 53 (6th Cir.1991) (table); Fla.Stat.Ann. §
726.105(2) (non-exclusive list of factors to be considered in determining actual intent under UFTA)....
...section 548(a)(1), provide additional grounds for avoidance under the facts and circumstances of this case. Compare § 548(a)(1) (permitting avoidance of transfers made "with actual intent to hinder, delay or defraud any entity") with Fla. Stat.Ann. § 726.105(1)(a) (transfers made "[w]ith actual intent to hinder, delay, or defraud any creditor" are fraudulent) and Mich.Comp.Laws Ann....
...Indeed, the Trustees proved their case by clear and convincing evidence. [111] The "badges of fraud" that the Eleventh Circuit considered in XYZ Options are the same "factors" listed in Florida's version of the UFTA. Compare In re XYZ Options, Inc.,
154 F.3d at 1271-72 with Fla.Stat.Ann. §
726.105(2)....
CopyCited 43 times | Published | District Court, S.D. Florida | 1995 U.S. Dist. LEXIS 12634, 1995 WL 519661
...At most it served the useful function of codifying an existing line of authority eliminating any doubt there may have been as to the law." David E. Peterson et al., Is the Homestead Subject to the Statute of Fraudulent Asset Conversions?, Fla.B.J., Dec., 1994, at 15. See also Fla.Stat. §
222.29 (1993) and Fla. Stat. §
726.105(a) (1987) et seq....
CopyCited 32 times | Published | United States Bankruptcy Court, S.D. Florida. | 13 Fla. L. Weekly Fed. B 266, 2000 Bankr. LEXIS 726
...877, 884-85 (Bankr.S.D.Fla.1998), in which the Court, under Florida's Uniform Fraudulent Transfer Act, denied avoidance under sections
726.106(1) and 706.105(1)(b), Florida Statutes (1997), because the debtor received reasonably equivalent value but nonetheless avoided the transfer under section
726.105(1)(a), Florida Statutes, because it was made with an actual intent to hinder, delay or defraud the debtor's creditors....
CopyCited 31 times | Published | Court of Appeals for the Eleventh Circuit
..."), filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code in 1991. Charles Weissing (the "trustee") was appointed trustee of the bankruptcy estate and, shortly thereafter, filed a complaint pursuant to Fla. Stat. § 726.105 to set aside as fraudulent the transfer of approximately $440,000.00 of non-exempt assets to several insurance companies for the purchase of annuities which are exempt from the claims of creditors under Florida law....
...case and, therefore, is reproduced in relevant part: 3 Pursuant to the provisions of Florida Statute Section
726.108 entitled remedies of creditors, the Court may avoid a transfer found to be fraudulent pursuant to the provisions of Florida Statutes Section
726.105 to the extent necessary to satisfy a creditor's claim....
...m non-exempt to exempt status does not constitute a transfer and, thus, cannot be attacked under Florida law. Second, they posit that, even if the conversion in question was a transfer, the funds currently are exempt under Florida law and Fla. Stat. 726.105 cannot be used to collaterally challenge the exempt status of these annuities....
...oses of Florida law regarding fraudulent transfers. The Levines, therefore, did transfer assets from non-exempt to exempt status in purchasing annuities from Financial during the time period identified by the bankruptcy court. 2 16 B. Has Fla. Stat. § 726.105 properly been invoked? 17 The Levines further argue that, assuming that a transfer did occur in this instance, the annuities are now exempt and cannot be contested collaterally through § 726.105....
...he debtor were unreasonably small in relation to the business or transaction; or2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. 22 Fla. Stat. § 726.105 (1)....
...209 , 212 (1917) (stating that the homestead exemption "applies not only to formal and technical process, but to any judicial proceedings, of law or in equity, which seek the appropriation of the property to the payment of debts."). 25 The trustee, on the other hand, points to more recent decisional law applying § 726.105 specifically to bankruptcy cases analogous to this one: In re Gefen, 35 B.R....
...368 (Bankr.S.D.Fla.1984), for instance, concerned a finding by the bankruptcy court that the debtor had transferred money from an individual retirement account into an annuity for the purpose of defrauding a creditor. In upholding the bankruptcy court's application of § 726.105, the district court in Gefen noted that 26 [t]he debtor could have chosen numerous investment vehicles with high rates of return for the proceeds of his I.R.A., or he could have applied them toward payment of the Final Judgment, but instead he chose a rollover into a deferred annuity.......
...tant action and effectively should govern our resolution of this issue. Although we must respect the reluctance of Florida courts to interfere with exempt assets, we also must be guided by those courts that have relied on the unambiguous language of § 726.105 to set aside transfers from non-exempt to exempt status when such transfers were effected in order to defraud creditors....
...Although the Levines correctly observe that the distinction between setting aside a transfer as fraudulent and declaring an otherwise exempt asset to be non-exempt achieves, from their perspective, the same outcome, it is also a very real distinction that is provided for by Florida law, as embodied in § 726.105, and that has been applied by both Florida bankruptcy courts and federal district courts....
...ed funds. Where, as in this case, there is an allegation that the transfer itself was fraudulent and should therefore be set aside (as opposed to an allegation that the transfer was fraudulent and the assets therefore should be declared non-exempt), § 726.105 may properly be invoked....
...the Florida legislature did not intend a remedy to exist for fraudulent transfer of funds from non-exempt to exempt status; in fact, at least one court has held that, prior to the adoption of §
222.30, the statutory provision at issue in this case, §
726.105, governed any type of fraudulent transfer including those transfers resulting in exempt funds....
...the time this case was initiated, there was no Florida law providing that a debtor forfeits her right to an exemption as a consequence for fraudulent conduct. 39 This legal conclusion is incorrect in light of the following statutes. Florida Statutes §
726.105 and §
726.108, effective at the time of the Annuity purchase, would appear to enable Ameritrust to avoid the transfer or Annuity purchase. 40 Id. at 552 (internal citation omitted). 41 We conclude, as did the district court in Davidson, that prior to the adoption of §
222.30, §
726.105 governed allegations of fraudulent transfers regardless of whether the challenged transfers resulted in exempt assets....
...This explicit cross-referencing of the two statutory provisions further suggests not only that they are to be read in tandem but, more importantly, that §
222.30 is a subset of the causes of action outlined in § 726. We determine that the legislative amendment embodied in §
222.30 does not preclude reliance on §
726.105 regarding causes of action that accrued prior to the amendment's enactment....
...urred. 53 (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. 54 (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. 55 Fla. Stat. § 726.105 (2)....
...defraud a known creditor and avoiding that transfer; they further contend that the district court erred in affirming that decision. We hold that (1) the Levines' purchase of annuities was a "transfer" under the pertinent Florida law; (2) Fla. Stat. § 726.105 properly was invoked and relied upon to challenge the nature of the transfer; (3) the amendment to Florida's statutory scheme regarding the fraudulent conversion of assets embodied in Fla....
CopyCited 30 times | Published | Court of Appeals for the Eleventh Circuit
...§ 678.315,
which entitles “any person against whom the transfer of a security is wrongful for
any reason . . . [to] reclaim possession of the certificated security;” and, that
defendants had defrauded creditors, in violation of Florida’s fraudulent transfer
statute, Fla. Stat. § 726.105.
The district court granted summary judgement in favor of Corpofin on its
conversion and reclamation of shares claims.6 In doing so it concluded that there
was no genuine issue of material fact about the defendants’ liability t...
CopyCited 30 times | Published | Florida 4th District Court of Appeal | 1994 WL 457141
...previous statutory law and codifies common law unless expressly replaced. See §
726.111, Fla. Stat. (1988). Under the UFTA, any transfer made with "actual intent to hinder, delay or defraud" any present or future creditor is a fraudulent transfer. §
726.105(1)(a), Fla. Stat. (1993). Because of the difficulty of proving actual intent, past statutory law, existing case law and the UFTA look to indicia of intent commonly known as "badges of fraud." §
726.105(2); Cleveland Trust Co. v. Foster,
93 So.2d 112 (Fla. 1957); Russ v. Blackshear,
88 Fla. 573,
102 So. 749 (1925). In this case, fraudulent intent may be presumed from evidence of numerous "badges of fraud" as delineated in section
726.105(2): the transfer of Munim, P.A....
CopyCited 29 times | Published | District Court, M.D. Florida | 1994 U.S. Dist. LEXIS 19071, 1994 WL 728555
...Statutory law of both Florida and Delaware provide that certain conveyances made by an insolvent entity or one that will be rendered insolvent by the transfer, without *246 fair consideration, is a fraudulent transfer, irrespective of the intent of the entity making the transfer. Fla.Stat. 726.105(1)(b); 6 Del.C....
...presumption that the transferor acted with fraudulent intent in making the transfer. Instead, state law also provides that a conveyance made with an intent to defraud, hinder, or delay is fraudulent as to both present and future creditors. Fla.Stat. 726.105(1)(a); 6 Del.C....
...d been sued or threatened with suit, 4) the debtor absconded, 5) the debtor concealed assets, 6) inadequate consideration was provided for the transfer, and 7) the debtor was insolvent or became insolvent shortly after making the transfer. Fla.Stat. 726.105(2)....
...As the Court previously noted, both Florida and Delaware law deem certain conveyances of an insolvent or potentially insolvent corporation fraudulent irrespective of intent, and other conveyances fraudulent based upon a showing of fraudulent intent. Fla.Stat. 726.105(1)(a), (1)(b); 6 Del.C....
...Although, as the Silicone Gel court stated, a company's potential tort liabilities may not render a company undercapitalized, the potential liability may serve as evidence of the fraudulent nature of a transfer made with knowledge of the potential liability. See Fla.Stat. ง 726.105(2)....
CopyCited 25 times | Published | Florida 3rd District Court of Appeal | 2000 Fla. App. LEXIS 2752, 2000 WL 276350
...rset, Landa, Ambrosio, individually and as trustees of the assets of Somerset, C & L Somerset Lakes, Inc., L & L on Oakland Park Blvd., Inc., Carole Cohen Landa and Leo Landau; and in Count IV, fraudulent transfer as to present and future creditors (§ 726.105, Florida Statutes), against Somerset, Landa, Ambrosio, individually and as trustees of the assets of Somerset; C & L Somerset Lakes, L & L on Oakland Park Blvd., Inc., Carole Cohen Landa and Leo Landau, asserting that Landa and Ambrosio on...
...NOTES [1] Likewise, for Invo to prove fraudulent transfer between insiders in Count III and fraudulent transfer as to present or future creditors in Count IV, it needs to prove a different set of elements than those required for breach of contract. See §§
726.106(2) and
726.105, Fla....
CopyCited 23 times | Published | Court of Appeals for the Eleventh Circuit | 2014 WL 2446084, 2014 U.S. App. LEXIS 10154
...from 1999 to January 2009 and
whether, consequently, every transfer of an asset from a Hedge Fund during that
time was made with actual intent to hinder, delay, or defraud creditors of Nadel
under FUFTA’s actual fraud provision. See Fla. Stat. § 726.105(1)(a)....
...receivership entities and the debtor is a person who controlled and transferred the
entities’ funds in furtherance of a Ponzi scheme. The Receiver’s amended
complaint asserts violations of FUFTA under both its actual fraud provision, see
Fla. Stat. § 726.105(1)(a), and its constructive fraud provision, see Fla. Stat. §
726.105(1)(b)....
...of 21
arose before or after the transfer was made or the obligation was incurred, if the
debtor made the transfer or incurred the obligation: (a) [w]ith actual intent to
hinder, delay, or defraud any creditor of the debtor . . . .” Fla. Stat. §
726.105(1)(a)....
...example, the transfer was to an insider, the debtor retained control of the property
after the transfer, the transfer was of substantially all the debtor’s assets, or the
debtor was insolvent or became insolvent shortly after the transfer was made. Fla.
Stat. § 726.105(2)(a)–(k)....
...he payments under [11 U.S.C.] §§ 548(a)
and 544(b).”) (citations omitted). We now clarify that, under FUFTA’s actual
fraud provision, proof that a transfer was made in furtherance of a Ponzi scheme
establishes actual intent to defraud under § 726.105(1)(a) without the need to
consider the badges of fraud....
CopyCited 21 times | Published | Florida 3rd District Court of Appeal | 2008 WL 2037775
...Section
56.29(6)(b) states that any transfer, assignment or other conveyance of personal property made or contrived by defendant to delay, hinder or defraud creditors shall be void. Whether a defendant's actions are made or contrived to "delay, hinder, or defraud" must be determined with reference to section
726.105(1)(1), which states: "(1) A transfer made or obligation incurred by a debtor is *1113 fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (a) With actual intent to hinder, delay, or defraud any creditor of the debtor; ..." Section
726.105(2) states that, in determining actual intent, consideration may be given, among other factors, to whether: (a) The transfer or obligation was to an insider....
...H & H Builders, Inc.,
475 So.2d 227 (Fla.1985)). Proof of fraud requires proof of intent. Obviously, in these situations, the parties will not readily admit to being instruments of fraud. Therefore, "because of the difficulty of proving actual intent to defraud creditors, section
726.105(2) provides that fraudulent intent maybe presumed from evidence of `badges of fraud.'" Beal Bank SSB v....
CopyCited 20 times | Published | United States Bankruptcy Court, M.D. Florida | 2003 WL 23975405
...Kime and First American understood where investor funds were going and how Commissions were calculated. CONCLUSIONS OF LAW 1. The Trustee alleges payments by Evergreen to Defendants totaling $192,493.01 are avoidable as actually or constructively fraudulent pursuant to 11 U.S.C. §§ 544, 548, and 550, and Florida Statutes §§
726.105(a) and (b), 726106(1), and
726.108....
...The avoidance period, available to the Trustee, is within one year prior to the bankruptcy filing. In re Model Imperial, Inc.,
250 B.R. 776, 789 (Bankr.S.D.Fla. 2000). The reach back period is extended to four years pursuant to Florida law. See Fla. Stat. §§
726.105 and
726.106....
...The Debtor paid Commissions to the Defendants with the actual intent to defraud both current and future investors. The transfers were made with actual fraud intent and are avoidable pursuant to Section 548 of the Bankruptcy Code and Florida Statutes Section 726.105....
CopyCited 20 times | Published | Court of Appeals for the Eleventh Circuit | 2013 WL 4463006, 2013 U.S. App. LEXIS 17580
...17
Case: 11-14379 Date Filed: 08/22/2013 Page: 18 of 32
the property transferred, whether the transfer was concealed, and whether the
transfer was substantially all the debtor’s assets. See Fla. Stat. § 726.105(2).
Indeed, had the Estate sued GE and Schron in state court under the Uniform
Fraudulent Transfer Act, the lawsuit plainly would have been a “civil action” under
§ 1441....
CopyCited 19 times | Published | United States Bankruptcy Court, M.D. Florida | 18 Fla. L. Weekly Fed. B 287, 2005 Bankr. LEXIS 1253, 44 Bankr. Ct. Dec. (CRR) 275
...Establishing the existence of a Ponzi scheme is sufficient to prove a debtor's actual intent to defraud under either the Bankruptcy Code fraudulent transfer provision found in Bankruptcy Code section 548 or the Florida fraudulent transfer provision found in Florida Statutes section 726.105....
...has based her case. Specifically, the Trustee alleges that the commissions Debtor paid to the Defendants constituted actual fraudulent transfers under Bankruptcy Code section 548(a)(1) and the state law fraudulent transfer statute, Florida Statutes section 726.105(1)(a)....
...heir commission checks even if the brokers had no knowledge whatsoever of the fraudulent nature of the underlying venture. 1. Elements of the Trustee's Prima Facie Case The elements of a case under Bankruptcy Code section 548 and Florida Statutes section 726.105(1)(a), are as follows: a. The debtor must have transferred the property within one year (under section 548) or four years (under section 726.105) of filing of the bankruptcy petition....
...In this case, the involuntary bankruptcy petition was filed on October 7, 2002. b. The transfer must have been made with the actual intent to hinder, delay, or defraud any entity to which the debtor was indebted. 11 U.S.C. § 548(a)(1); Fla. Stat. § 726.105(1)(a). In addition, in order for the Trustee to use the provisions of the Florida fraudulent conveyance statute found in section 726.105(1)(a), with its more favorable four-year, look-back period, the Trustee must meet the condition found in Bankruptcy Code section 544(b) that there exist "at least one unsecured creditor of the Debtor who at the time the transfer in qu...
...As discussed below, this was a Ponzi scheme in which numerous creditors were defrauded from its inception. Many of the over 800 creditors that filed claims in this case could have brought an action to recover funds fraudulently transferred by the Debtor under Florida Statutes section 726.105(1)(a)....
...rose as early as February 1989. Therefore the trustee has met his burden of establishing that at least one unsecured creditor exists [ ] who could bring a claim."). 2. Proving Actual Fraud under Bankruptcy Code section 548(a)(1) and Florida Statutes section
726.105(1)(a) As an initial matter, Bankruptcy Code section 548 and Florida Statutes section
726.105 are substantially the same, and both address claims under the same legal framework. See In re Toy King Distributors, Inc.,
256 B.R. 1, 126-27, 143 (Bankr.M.D.Fla.2000) (treating §
726.105 as state law equivalent of 11 U.S.C. § 548(a)(1)(A) and treating §
726.106 as state law equivalent of § 548(a)(1)(B)); In re Stewart,
280 B.R. 268, 273 (Bankr.M.D.Fla.2001) (holding that § 548 and §
726.105 "are analogous `in form and substance' and may be analyzed contemporaneously.") (citing In re Venice-Oxford Assoc....
...d is sufficient to establish his actual intent to defraud them." Independent Clearing House,
77 B.R. at 860. Therefore, the Trustee has established the Debtor's actual intent to defraud under Bankruptcy Code section 548(a)(1)(A) and Florida Statutes section
726.105(1)(a)....
...art *852 of a Ponzi scheme, the Trustee has met her burden with respect to avoiding those transfers so long as they were made within either the one-year or the four-year, look-back periods contained in Bankruptcy Code section 548 or Florida Statutes section 726.105, respectively....
...iling and that the transfers were made with actual intent to hinder, defraud, or delay creditors. The transfers, as listed in the motions for summary judgment, are therefore subject to avoidance under Bankruptcy Code section 548 and Florida Statutes section 726.105. 3. Defendants' Liability as Initial Transferees under 11 U.S.C § 550(a) Once a court determines that transfers are avoidable under Bankruptcy Code section 548 or under Florida Statutes section 726.105, (available to the Trustee under Bankruptcy Code section 544(b)), the Court must then look to Bankruptcy Code section 550 to determine the liability of the transferee of the avoided transfer....
...Conclusion Through a series of motions for partial summary judgment, the Trustee has proven all the necessary elements to avoid the transfers by the Debtor to the Defendants under Bankruptcy Code section 548 and under Bankruptcy Code section 544(b) via Florida Statutes section 726.105(1)(a)....
...he meaning of 11 U.S.C. § 550(a)(1); (b) The Trustee has proven that the transfers set forth in the motions for summary judgment were made within one year (for purposes of Bankruptcy Code section 548) or four years (for purposes of Florida Statutes section 726.105(1)(a)) before the date of the filing of the petition; (c) The Trustee has proven that the transfers were made with actual intent to hinder, delay, or defraud the Debtor's creditors; and (d) In satisfaction of Bankruptcy Code section 544(b) for purposes of utilizing Florida Statutes section 726.105(1)(a), the Trustee has proven the existence of at least one unsecured creditor who could have brought these claims. Thus, the Trustee has proven all the elements necessary to establish that the transfers listed in the motions for summary judgment are avoidable as fraudulent under Bankruptcy Code section 548 or Florida Statutes section 726.105....
...ed. (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Id. (citing Fla. Stat. § 726.105(2)).
CopyCited 19 times | Published | Court of Appeals for the Eleventh Circuit | 47 Fed. R. Serv. 670, 1997 U.S. App. LEXIS 22374, 1997 WL 447351
...ning assets of the debtor were unreasonably small in relation to the business or transaction; or 2. Intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due. Fla. Stat. § 726.105 (1). In determining “actual intent” under § 726.105(l)(a), the UFTA directs courts to consider whether any of the following “badges of fraud” are applicable to the transfer at issue: (a) The transfer or obligation was to an insider....
...nsfer, and did not receive a reasonably equivalent value for the transfers; or, (2) the debt- or made the transfer to an insider, and the insider had reasonable cause to believe that the debtor was insolvent. Id. Applying Fla. Stats. §
56.29(6)(a), §
726.105 and §
726.106, the magistrate judge concluded that Power Depot had not been the recipient of a fraudulent transfer....
...roblems stemmed from the multiple judgments entered against it in the district court. In addition to the magistrate judge’s failure to consider the “close relationship” badge of fraud, we find error with the court’s application of Fla. Stat. § 726.105 (2)(e), which directs a court to consider whether a transfer “was of substantially all of the debtor’s assets.” Here, the transfer of GTI’s assets and inventory was in conjunction with GTI’s termination of business activities....
...In his order, the magistrate judge concluded that “the transfer did not represent all of the debtor’s assets.” The conclusory language used by the magistrate judge, without further explanation, makes us question whether the magistrate judge raised the standard for finding a badge of fraud under Fla. Stat. § 726.105 (2)(e), i.e., did he inquire into whether “substantially all,” rather than “all” of GTI’s assets had been transferred....
...ve jurisdiction); New York Chinese TV Programs v. U.E. Enterprises,
996 F.2d 21 (2d Cir.1993). . The magistrate judge found the above transfers to be fraudulent under one or more of the following Florida statutes: Fla. Stat. §
56.29 (a), Fla. Stat. §
726.105 (1)(a), and Fla....
CopyCited 18 times | Published | Florida 3rd District Court of Appeal
...Lending, Agritrade Investments, and Agri Commodity Trade, LLC
based on the second promissory note. A copy of the second note was
attached to the amended complaint.
Count III: Violation of Florida’s Uniform Fraudulent Transfer Act
(section 726.105(1), Florida Statutes), by Quercia and Agro against
LP, Lending, Agritrade Investments, Agri Commodity Trade, LLC,
Galo Group Limited (“Galo”), and Juan Curbelo,3 alleging Curbelo
improperly caused the Agritrade e...
CopyCited 16 times | Published | United States Bankruptcy Court, M.D. Florida | 9 Fla. L. Weekly Fed. B 191, 1995 Bankr. LEXIS 1530, 1995 WL 628054
...Meininger (Trustee), who seeks to set aside certain transactions by Thomas Wherrett Miller (Debtor). The Trustee's claim for relief is set forth in his five Count Complaint. In Count I the Trustee seeks to avoid the fraudulent transfer of property pursuant to 11 U.S.C. § 544(a) and Florida Statutes §
726.105(1)(a); the Claim in Count II is based 11 U.S.C. § 544(a) and Fla.Stat. §
726.105(1)(b) and the claim on Count III is based on 11 U.S.C. § 544(a) and Fla.Stat. §
726.106(1). In Count IV the Trustee seeks to avoid fraudulent transfers pursuant to 11 U.S.C. § 544(a) and Fla.Stat. §
726.105(1)(a) and the claim in Count V is based on 11 U.S.C....
...It is the Trustee's contention that both the "First and the Second Transfers" were fraudulent transfers, thus by virtue of § 544(b) of the Bankruptcy Code, the Trustee may avoid these transfers by relying on the Uniform Fraudulent Transfer Statute of Florida, Fla.Stat. 726.105, et seq....
...tion of section 544(b). Secondly, under section 544(b), the Trustee must prove that the alleged fraudulent transfers could have been avoided by one of these unsecured creditors under Florida's Fraudulent Transfer Act. The Trustee relies on Fla.Stat. § 726.105, which provides: "(1) transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation incurred, if the debtor made the transfer or...
...ter the conveyance because they had no enforceable claims against Patricia Miller the Debtor's wife. The next element the Trustee must establish is that the transfer was made with actual intent to hinder, delay or defraud any creditor of the Debtor. Section 726.105(2) list eleven factors to consider in determining actual intent under 726.105(1)(a)....
...e Camerons and the Cochranes. Based on the foregoing, this Court is satisfied that the Trustee did establish with the requisite degree of proof, all the necessary elements of a voidable transfer for the "First Transfer" as fraudulent under Fla.Stat. 726.105(1). The Trustee in Count II seeks to avoid transfers of property pursuant to Code section 544(b) and Fla.Stat. § 726.105(1)(b) alleging transfers without consideration where the debtor intended to incur, or reasonably should have believed that he would incur, debts beyond his ability to repay....
...Based on the foregoing there is sufficient evidence to find that the First Transfer was *307 also fraudulent under Fla.Stat.
726.106(1) and thus avoidable by the Trustee pursuant to § 544(b) of the Bankruptcy Code. The claim in Count IV of the Complaint is based on Fla.Stat.
726.105(1)(a) and is directed to the "Second Transfer"....
CopyCited 16 times | Published | District Court, M.D. Florida | 2009 U.S. Dist. LEXIS 22559, 2009 WL 728546
...Oscher's testimony is not rendered unreliable in this regard. For the purposes of the FUFTA claims, the issue is whether the debtor was operating a Ponzi scheme, which presumptively indicates the debtor's actual intent to defraud his creditors. See Fla. Stat. § 726.105(1)(a)....
...Waxenberg pursuant to FUFTA, seeking to recover transfers categorized as "return of principal" (Count I), "false profits" (Count III), and "other transfers" purportedly for household and family expenses (Count V). Each claim is brought pursuant to three subsections of FUFTA: Fla. Stat. §
726.105( l )(a), §
726.105( l )(b), and §
726.106(1), which include different elements of proof. Section
726.105(1) of FUFTA provides two theories by which a present or future creditor may recover fraudulent transfers: an actual fraud theory, under subsection (a), and a constructive fraud theory, under subsection (b)....
...the debtor were unreasonably small in relation to the business or transaction; or 2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. Fla. Stat. § 726.105(1)....
...ligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation." Fla. Stat. §
726.106(1). Finally, §
726.109(1) provides a "good faith defense" for transfers made with actual fraud under §
726.105( l )(a): "A transfer or obligation is not voidable under s.
726.105( l )(a) against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee." Fla. Stat. §
726.109(1). Mrs. Waxenberg has moved for summary judgment on two issues: (1) whether she took the transfers in "good faith" for the purposes of the good faith defense to the claims under §
726.105(1)(a); and (2) whether the transfers were for "reasonably equivalent value" for the purposes of the constructive fraud claims and good faith defense. The Receiver has moved for summary judgment as to the §
726.105( l ) (a) actual fraud claims only, contending that Mrs....
...Waxenberg's principal investment are for reasonably equivalent value, as a matter of law. See In re Leneve,
341 B.R. 53, 62 (Bankr.S.D.Fla.2006). While the Receiver cites no case to the contrary to preclude summary judgment on the constructive fraud claims pursuant to Fla. Stat. §
726.105( l )(b) and §
726.106(1), he maintains that for the purposes of the actual fraud claims under §
726.105( l )(a)which do not involve the issue of reasonably equivalent valueMrs....
...Waxenberg cannot demonstrate good faith. As set forth above, the Court has found that an issue of fact exists regarding Mrs. Waxenberg's good faith, and Mrs. Waxenberg is therefore not entitled to summary judgment on the portion of Count I brought pursuant to §
726.105(1)(a). See, e.g., Donell v. Kowell,
533 F.3d 762 (9th Cir.2008); Scholes,
56 F.3d at 757. Mrs. Waxenberg is, however, entitled to summary judgment on the portion of Count I pursuant to Fla. Stat. §
726.105( l )(b) and §
726.106(1), and her motion is GRANTED IN PART to this extent....
...tion to support Mrs. Waxenberg and her sons. This argument is without merit. FUFTA asks whether "the debtor not the creditormade the transfer or incurred the obligation ... without receiving a reasonably equivalent value in exchange." Fla. Stat. § 726.105(1)(b); see Goldberg v....
...ude that an agent ... was engaged in fraud or self-dealing adverse to a corporate principal"). [17] In other cases, actual intent must be determined by considering the statutory "badges of fraud," which typically presents a jury question. Fla. Stat. § 726.105(2)(a)-(k)....
...As such, they are not relevant to the determination of whether there was a Ponzi scheme. [23] The Receiver's motion on these issues assumes the existence of a Ponzi scheme as a matter of law. (Dkt. 142 at 18). As that is an issue of fact, as discussed in Section C, supra, the Receiver's motion for summary judgment on the § 726.105(1)(a) claims must necessarily be denied....
CopyCited 15 times | Published | Florida 4th District Court of Appeal | 2002 WL 816836
...It allows the judgment creditor to go after third parties to the extent that they may have property belonging to the debtor. In determining whether a transfer to a third party is invalid, as a fraud on creditors, the Uniform Fraudulent Transfer Act (UFTA) applies. The bank sought to impose liability under sections
726.105 and
726.106 of the act. Under section
726.105(1)(a), Florida Statutes, a transfer by a debtor "is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made ..., if the debtor made the transfer ......
...li's share. While it was certainly permissible for Maczko to withdraw her share, to the extent that the withdrawal also included her husband's share, it cannot be determined that a fraudulent transfer did not occur. Although it is true that sections
726.105 and
726.106 both describe fraudulent transfers as those "made ......
...li's proportionate interest in the joint funds. Although the trial court erred in granting Maczko's motion for summary judgment, we find no error in its denying the bank's cross-motion for summary judgment. Liability is not clearly established under section 726.105. The statute provides that a transaction is fraudulent if carried out with actual intent to hinder, delay, or defraud any creditor of the debtor. Section 726.105(2) lists several factors to be considered, including: (a) transfer between spouses, (b) timing of transfer, (c) insolvency of the debtor, (d) lack of consideration, (e) debtor retained use and enjoyment of asset, and (f) concealment of the transfer....
...We note that the bank's argument that liability is established under section
726.106 is not properly before this court, as it was not raised in the bank's cross-motion for summary judgment. The bank's cross-motion for summary judgment was based solely on section
726.105....
CopyCited 15 times | Published | United States Bankruptcy Court, S.D. Florida. | 20 Fla. L. Weekly Fed. B 267, 2007 Bankr. LEXIS 296
...incurred. [14] (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Fla. Stat. § 726.105(2); In re Paul, 217 B.R....
...The presence of several badges of fraud gives rise to a rebuttable inference of fraud. Advest, Inc. v. Rader,
743 F.Supp. 851, 854 (S.D.Fla.1990). Here, eight of these eleven "badges of fraud" are present. First, the transfers made to or on behalf of the Jacobsons were transfers "to an insider." Fla. Stat. §
726.105(2)(a); 11 U.S.C....
...Water received and the automobile they retain) or for their benefit ( e.g., payment of their personal expenses). The second applicable badge of fraud is whether the Debtor retained possession or control of the property after its transfer. Fla. Stat. § 726.105(2)(b)....
...1988)) (mere continuation occurs where new entity has same management, personnel, assets, location, and stockholders). The existence or threat of suit at or before the time of transfer is also a "badge of fraud" that the Court must consider. See Fla. Stat. § 726.105(2)(d). Here, many of the transfers at issue were made after entry of the judgment against the Debtor in favor of EcoWater. Another enumerated badge of fraud is a transfer "of substantially all the debtor's assets." Fla. Stat. § 726.105(2)(e)....
...orate assets. Moreover, by transferring assets to Discount Water for example, the telephone number, inventory and clientele rather than providing them to the Trustee as was required, the Debtor plainly "removed or concealed assets." Fla. Stat. § 726.105(2)(g). Fraud also exists where the Debtor transfers property to another for consideration that is not reasonably equivalent to the value of the asset transferred. Fla. Stat. § 726.105(2)(h)....
...The Jacobsons therefore did not establish that they provided reasonably equivalent consideration for the property and funds they caused the Debtor to transfer to them. The Debtor's insolvency at the time of, or as a result of, a transfer is also evidence of fraud. Fla. Stat. § 726.105(2)(I)....
...t the Debtor made transfers of at least $8,732.19 within a year of the bankruptcy case. ( See Ex. 51, Attachment A thereto). Finally, a transfer "shortly before or shortly after a substantial debt was incurred" is also a badge of fraud. ( Fla. Stat. § 726.105(2)(j))....
...den and has established that there exists at least one unsecured creditor, EcoWater, who holds a claim against the Debtor that is allowable under 11 U.S.C. § 502. The analysis now shifts to the "applicable law", which in this instance is Fla. Stat. § 726.105(a) and (b)....
...Accordingly, the Trustee is entitled to judgment in this amount on Counts III and X. Transfers made for less than reasonably equivalent value that were made when the Debtor was insolvent, or caused the insolvency, are likewise avoidable under Florida law. Fla. Stat. §§
726.105(1)(B) and
726.106....
CopyCited 15 times | Published | Florida 5th District Court of Appeal | 2002 Fla. App. LEXIS 4716, 2002 WL 537633
...Finally, we turn to the claim that DPM fraudulently transferred its assets to PRN. Under the Uniform Fraudulent Transfer Act (UFTA), any transfer made with "actual intent to hinder, delay or defraud" any present or future creditor is a fraudulent transfer. § 726.105(1)(a), Fla....
...We agree with the Munim decision, and therefore, reject PRN's argument. Because of the difficulty in proving actual intent of a fraudulent transfer, case law and the UFTA look to indicia of fraudulent intent commonly referred to as "badges of fraud." § 726.105(2), Fla....
CopyCited 14 times | Published | Court of Appeals for the Eleventh Circuit | 2017 WL 4682691, 2017 U.S. App. LEXIS 20468
...adopted), a plaintiff must show that property was transferred by the defendant for less than
reasonably equivalent value at a time when the transferor was insolvent or in a manner that left
the transferor insolvent. See 11 U.S.C. § 548(a)(B); see also Fla. Stat. § 726.105(1)(b)....
CopyCited 14 times | Published | United States Bankruptcy Court, S.D. Florida. | 1989 Bankr. LEXIS 714
...holding an unsecured claim allowable under § 502. § 544(b). This provision is significant, because it reaches transfers which occurred more than a year before bankruptcy. The applicable law is the Florida Uniform Fraudulent Transfer Act, Fla.Stat. § 726.105(1)(a), effective January 1, 1988. Its departures from its Florida predecessor, Fla.Stat. § 726.105(1)(b), do not appear to be material to any issue in this case....
...If it be necessary, the trustee's post-trial motion to amend its pleadings to make reference to the former statute is granted. The trustee has proved fraudulent transfers (in addition to those identified above as avoidable under § 548(a)), which are avoidable under § 544(b) and Fla.Stat. § 726.105(1)(a), in the following amounts to the following family members: [10] Henry Gherman $2,136,519 Joan Gherman $2,411,047 Shari Gherman Rance 688,959 Craig Gherman 393,543 Chasyn John Rance Trust 162,352 *332 Ashtyn Rance $40,424 Leslie Rance...
CopyCited 13 times | Published | United States Bankruptcy Court, M.D. Florida | 14 Fla. L. Weekly Fed. B 229, 1998 Bankr. LEXIS 1944, 1998 WL 1757108
...The Amended Complaint contains four counts. Count I is an action to recover fraudulent transfers pursuant to § 548 and § 550 of the Bankruptcy Code; Count II is an action to recover fraudulent transfers pursuant to § 544 and § 550 of the Bankruptcy Code and Florida Statutes §
726.105(1)(b) and §
726.106(1); Count III is an action for equitable subordination pursuant to § 510 of the Bankruptcy Code; and Count IV is an action to disallow a claim pursuant to § 502(d) of the Bankruptcy Code....
...Section 548 of the Bankruptcy Code addresses obligations incurred and transfers made on or within one year before the date of the filing of the petition. Count II of the Committee's Amended Complaint is based on § 544 of the Bankruptcy Code and Florida Statutes §
726.105(1)(b) and §
726.106(1), and is to recover the value of property transferred pursuant to an obligation incurred more than one year and less than two years prior to the filing of the petition....
...is voidable under applicable laws, including state laws to void fraudulent transfers, by a creditor holding an allowable unsecured claim. Florida's laws regarding the avoidance of constructively fraudulent transfers are set forth in Florida Statute §
726.105(1)(b) and Florida Statute §
726.106(1) Florida Statute §
726.105(1)(b) provides:
726.105 Transfers fraudulent as to present and future creditors....
...ims which arose before the obligation or transfer, and that certain obligations incurred or transfers made are fraudulent as to creditors with claims which arose before or after the obligation or transfer. In other material respects, Florida Statute §
726.105(1)(b) and Florida Statute §
726.106(1) are analogous "in form and substance" to § 548(a)(2) of the Bankruptcy Code....
...is bankruptcy case which claim arose before the obligation was incurred. The parties have not indicated whether there is a creditor with an allowable unsecured claim in this bankruptcy case which claim arose before the obligation was incurred. Under § 726.105, Florida Statutes, however, the obligation may be fraudulent as to creditors whose claims arose before or after the obligation was incurred....
CopyCited 12 times | Published | United States Bankruptcy Court, M.D. Florida | 32 Collier Bankr. Cas. 2d 312, 1994 Bankr. LEXIS 1821, 1994 WL 560428
...d the reach of creditors, he demonstrates "an actual intent to hinder or delay a creditor." In re Adeeb,
787 F.2d 1339, 1343 (9th Cir.1986). The 1993 amendments incorporate by reference Florida's pre-existing fraudulent conversion law, Fla.Stat.Ann. §
726.105....
CopyCited 12 times | Published | District Court, M.D. Florida | 1989 WL 237755
...These principles have been preserved as supplementary provisions to the UFTA. Id. The UFTA lists several indicia, or badges of fraud, to assist this court in determining whether the Romanos actually intended to hinder, delay, or defraud any of their creditors. Id. § 726.105(2)(a)-(k)....
...At the time of the transfer, Anthony Mario Romano had reached the age of majority, and the conveyance would appear to be what the grandfather had wanted. Nevertheless, when a debtor transfers property after being sued, an indication of fraud results that the debtor must rebut. Id. § 726.105(2)(d)....
...wners of the Spring Valley property and that they intentionally transferred the property to delay, hinder, and defraud their creditors. Fernon,
640 F.2d at 613; McCrary v. Bobenhausen,
366 So.2d 77, 78 (Fla.Dist.Ct.App.1979) (per curiam); Fla. Stat. §
726.105(1)(a)....
CopyCited 12 times | Published | United States Bankruptcy Court, M.D. Florida | 6 Fla. L. Weekly Fed. B 94, 1992 Bankr. LEXIS 585, 1992 WL 81936
...defraud Miller from pursuing his claim against them. As a result, the Trustee seeks to have the Debtors' conversion of nonexempt assets into exempt assets, which the Trustee claims to constitute fraudulent transfers, set aside pursuant to Fla.Stat. § 726.105, and to have the assets returned to the estate for the benefit of creditors....
...pproving the Stipulation. The Debtors have since filed a Motion to Dismiss the Trustee's Complaint, which is the matter currently under consideration. The Debtors contend that there was never any "transfer" of any of their assets, and thus Fla.Stat. § 726.105 is inapplicable....
...The Debtors allege that they simply "exchanged" nonexempt assets for exempt assets, a practice not prohibited by the Bankruptcy Code, and therefore, the Complaint should be dismissed. In the Motion to Dismiss, the Debtors rely on the specific language of Fla.Stat. § 726.105 requiring a "transfer" by the Debtor. The Debtors argue that since, by definition, a "transfer" requires a transferor and a transferee, the transaction in question does not fall within the provisions of Fla.Stat. § 726.105 since there was no transferee and the ownership of the property in question never changed....
...f disposing of or parting with an asset or an interest in an asset, . . ." Clearly this section contemplates two parties to a transfer: the transferor who disposes of or parts with an asset, and the transferee who receives the same. Florida Statutes § 726.105 provides in pertinent part that "[a] transfer ....
...erty converted from nonexempt to exempt may be considered in determining whether fraudulent intent exists. Id. at 875-76. Based on the foregoing, this Court is satisfied that because there was not, in fact, a transfer made by the Debtors, Fla. Stat. § 726.105 is inapplicable to the facts of this case and as a result, the Debtors' Motion to Dismiss the Trustee's Complaint must be granted....
CopyCited 12 times | Published | United States Bankruptcy Court, M.D. Florida | 19 Fla. L. Weekly Fed. B 279, 2006 Bankr. LEXIS 982, 2006 WL 1593969
...In Count VI the Trustee seeks to recover the same from CMSI on the alternative theory of Section 548(a)(1)(B) and Section 550. In Count XI the Trustee seeks to recover from McDermott the sum of $115,040.00 *314 based on the claim of a fraudulent transfer pursuant to Section 544(b) and Fla. Stat. § 726.105(1)(a). In Count XII the Trustee seeks to recover the same amount on the alternative theory of Section 544(b), and Fla. Stat. § 726.105(1)(b)(1). In Count XIII the Trustee seeks to recover from McDermott the same amount on a claim based on Section 544(b) Fla. Stat. § 726.105(1)(b)(2)....
...In Count XIV the Trustee seeks to recover the same amount from McDermott based on Section 544(b) and Fla. Stat. §§
726.106(1) and
726.109. In Count XV the Trustee seeks to recover from CMSI the amount of $199,310.00 based on Section 544(b) and Fla. Stat. §
726.105(1)(a). In Count XVI the Trustee seeks to recover the same amount from CMSI based on 544(b) and Fla. Stat. §
726.105(1)(b)(1). The claim in Count XVII seeks to recover from CMSI the same amount based on 544(b) and Fla. Stat. §
726.105(1)(b)(2)....
...e customers' claims if ONSI filed bankruptcy. FRAUDULENT TRANSFER CLAIMS The Trustee asserts the right to recover money damages from McDermott and CMSI in Counts III-VI and XI-XVI-II, based on the fraudulent transfer statutes in 11 U.S.C. § 548 and 726.105, .106, Florida Statutes, applicable in conjunction with 11 U.S.C. § 544(b). Claims III, V, XI, and XV are based on both Section 548(a)(1)(A) and section 726.105(1)(a), Florida Statutes....
...Courts look to certain badges of fraud to draw the necessary inferences. Id. at 128; Cuthill v. Greenmark, LLC ( In re World Vision Entertainment, Inc. ),
275 B.R. 641, 656 (Bankr. M.D.Fla.2002). The Eleventh Circuit has adopted the badges of fraud contained in the Florida fraudulent transfer statute. §
726.105(2), Fla....
...nts were too good to be true, were not true, and somebody was going to suffer loss as result when scheme collapsed. This Court is satisfied that this record is more than ample to find that the Trustee proved its claims under Section 548(a)(1)(A) and 726.105(1)(a), Florida Statutes....
...The Trustee failed to prove its damages, and therefore cannot recover. Accordingly it is ORDERED, ADJUDGED AND DECREED that payments made by the Debtor to McDermott totaling the amount of $115,040 are voidable as fraudulent transfers pursuant to 11 U.S.C. § 548(a)(1)(A), 11 U.S.C. § 544(a), and § 726.105(1)(a), Florida Statutes. ORDERED, ADJUDGED AND DECREED that payments made by the Debtor to CMSI totaling the amount of $203,310 are voidable as fraudulent transfers pursuant to 11 U.S.C. § 548(a)(1)(A), 11 U.S.C. § 544(a), and § 726.105(1)(a), Florida Statutes....
CopyCited 11 times | Published | United States Bankruptcy Court, M.D. Florida | 12 Fla. L. Weekly Fed. B 249, 1999 Bankr. LEXIS 800, 1999 WL 493291
...The issue posed by Ex-Wife's Objection is whether a claimed Florida *669 homestead exemption can be disallowed if the homestead is purchased with non-exempt assets with the actual intent to hinder, delay, or defraud creditors in violation of Florida Statute § 726.105....
...onderance of the evidence standard. Kapila v. Plave (In re Paul),
217 B.R. 336, 337 n. 2 (S.D.Fla. 1997) (citing Wieczoreck v. H & H Builders, Inc.,
475 So.2d 227 (Fla.1985)). "In determining whether a debtor harbored actual intent as referred to in §
726.105(1)(a), eleven factors, or badges of fraud, listed at §
726.105(2)(a)-(k) may be considered." [4] 217 B.R....
...itor.
136 F.3d at 1459. In discussing whether a claimed Florida homestead exemption can be successfully challenged if the home is purchased with nonexempt assets with the actual intent to hinder, delay, or defraud creditors in violation of Fla.Stat. §
726.105, the Eleventh Circuit stated: In Bank Leumi Trust Co....
...Lang,
898 F.Supp. at 887. CONCLUSION The Court does not doubt the possibility that Debtor moved to Florida solely to maximize exempt property. However, the Court finds the evidence presented insufficient to establish the elements of Florida Statute §
726.105....
...editor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (a) With actual intent to hinder, delay, or defraud any creditor of the debtor . . . Fla.Stat.Ann. § 726.105 (West 1998)....
...as incurred. (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Fla.Stat.Ann. § 726.105(b) (West 1998).
CopyCited 11 times | Published | United States Bankruptcy Court, S.D. Florida. | 19 Fla. L. Weekly Fed. B 213, 2006 Bankr. LEXIS 692, 46 Bankr. Ct. Dec. (CRR) 121
...the debtor's behalf) to the defendant, Carlayne Holloway. In that regard, the trustee seeks to recover a total of $957,215.00 in purportedly fraudulent transfers from Holloway. Both 11 U.S.C. § 548(a)(1)(A) of the bankruptcy code and Fla. Stat. *56 § 726.105(1)(a) [1] permit a bankruptcy trustee to avoid transfers of a debtor's property if those transfers were made with the actual intent to hinder, delay, or defraud the debtor's creditors. Under 11 U.S.C. § 548(a)(1)(B) and Fla. Stat. § 726.105(1)(b), a trustee may likewise avoid a transfer if the debtor received "less than a reasonably equivalent value" in exchange for the transfer and the debtor was insolvent or otherwise financially impaired at the time of the transfer. In order to prove that a fraudulent transfer has occurred under § 548(a)(1)(A) or Fla. Stat. § 726.105(1)(a), the plaintiff must demonstrate several things....
...In that regard, however, it must be remembered that it is the debtor's intent, not the transferee's intent, which is critical in determining whether a transfer is fraudulent. In re Metro Shippers, Inc.,
78 B.R. 747, 752 (Bankr.E.D.Pa.1987). Under both § 548(a)(1)(B) and Fla. Stat. §
726.105(1)(b), the plaintiff must prove that the debtor did not receive "reasonably equivalent value" in exchange for the transferred property....
CopyCited 11 times | Published | Court of Appeals for the Eleventh Circuit | 2001 U.S. App. LEXIS 15062, 2001 WL 754475
...ida: Does Article X, Section 4 of the Florida Constitution exempt a Florida homestead, where the debtor acquired the homestead using non-exempt funds with the specific intent of hindering, delaying, or defrauding creditors in violation of Fla. Stat. § 726.105 or Fla....
CopyCited 11 times | Published | Court of Appeals for the Eleventh Circuit | 1999 WL 1132071
...Does Article X, Section 4 of the Florida Constitution exempt a Florida homestead, where the debtor
acquired the homestead using non-exempt funds with the specific intent of hindering, delaying, or
defrauding creditors in violation of Fla. Stat. § 726.105 or Fla....
CopyCited 10 times | Published | United States Bankruptcy Court, M.D. Florida | 1988 Bankr. LEXIS 233, 1988 WL 14147
...veals that the creditors evidentiary burden may be greater in the state courts as opposed to the bankruptcy forum. For instance, the provisions of the UFTA do not provide for any evidentiary presumption in determining the debtor's fraudulent intent. Section 726.105(2), Florida Statutes....
CopyCited 10 times | Published | District Court, S.D. Florida | 1995 U.S. Dist. LEXIS 2333, 1995 WL 86566
...y's Bill and to Determine whether that Bill Provides Proof of Walter Davidson's Intent to Hinder, Delay or Defraud Ameritrust, (b) to Determine Whose Funds Were Used to Purchase the Annuity, and (c) to Determine the Applicability of Florida Statutes §
726.105 and §
726.108....
...not be denied discharge under 11 U.S.C. § 727(a)(4) and (5). The Bankruptcy Court's Order Overruling Plaintiffs' Objections to Debtors' Claimed Exemptions is REVERSED and REMANDED with Instructions to Determine the Applicability of Florida Statutes §
726.105 and §
726.108 This Court has conducted a de novo review of the Bankruptcy Court's conclusion that Plaintiffs' Objections to Debtors' exemptions should be overruled....
...ed, there was no Florida law providing that a debtor forfeits her right to an exemption as a consequence for fraudulent conduct. See, Memorandum Decision, at 12. This legal conclusion is incorrect in light of the following statutes. Florida Statutes §
726.105 and §
726.108, effective at the time of the Annuity purchase, would appear to enable Ameritrust to avoid the transfer or Annuity purchase. In particular, Florida Statute §
726.105 provides: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or in...
...was entered, Marian Davidson intended to hinder or delay Ameritrust. See, Memorandum Decision, at 7. Accordingly, based upon the Bankruptcy Court's own findings, the Annuity purchase in this case would appear to be "fraudulent" under Florida Statute § 726.105....
...a transfer or obligation under ss.
726.101-726.112, a creditor [Ameritrust] . . . may obtain: (a) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor's claim. Due to the apparent applicability of Florida Statutes §
726.105 and §
726.108, the Bankruptcy Court's Memorandum Decision and Judgment which overrules Plaintiffs' Objections to Debtors' claimed exemptions is REVERSED AND REMANDED to the Bankruptcy Court to consider the applicability of §
726.105 and §
726.108 to the case at bar....
...rney's Bill and Determine Whether that Bill Provides Proof of Walter Davidson's Intent to Hinder, Delay or Defraud Ameritrust, (b) to Determine Whose Funds Were Used to Purchase the Annuity, and (c) to Determine the Applicability of Florida Statutes §
726.105 and §
726.108....
...ncerning a matter within the scope of the agency or employment, made during the existence of the relationship. [10] Because the Court finds that this case needs to be remanded to the Bankruptcy Court to consider the applicability of Florida Statutes §
726.105 and §
726.108, this Court does not need to address whether the rationale in In re Schwarb, supra , should be followed in this case.
CopyCited 10 times | Published | Florida 3rd District Court of Appeal | 2013 WL 4007280, 2013 Fla. App. LEXIS 12334
...Because the determination of actual fraudulent intent can be difficult, courts look to certain “badges of fraud” to determine whether the transfer was made with the intent to defraud creditors. Beal Bank SSB v. Almand & Assocs.,
780 So.2d 45, 60 (Fla.2001). Those “badges of fraud” are set forth in section
726.105, Florida Statutes (2013)....
...or obligation was disclosed or concealed (the loans were not publically recorded); and the transfer was made shortly before or shortly after a substantial debt was incurred (loans were made prior to, and forgiven during, the de Cespedes’ lawsuit). § 726.105(2), Fla....
...We find that argument unpersuasive where “it seems clear that prejudgment attachment is available against assets which are held in the name of another and which have either been fraudulently transferred from the debtor or remain equitably owned by him.” Cema,
503 So.2d at 1298 . . Section
726.105, Florida Statutes (2013), provides, in part: (2) In determining actual intent under paragraph (l)(a), consideration may be given, among other factors, to whether: (a)The transfer or obligation was to an insider....
CopyCited 9 times | Published | United States Bankruptcy Court, S.D. Florida. | 1998 Bankr. LEXIS 1756
...THIS MATTER came before the Court for trial on August 7, 1998. Daniel L. Bakst, Trustee filed an amended adversary complaint which seeks to avoid and recover fraudulent conveyances pursuant to 11 U.S.C. §§ 544, 548 and Florida Statutes §§
726.101,
726.105(1)(a),
726.105(1)(b),
726.106(1), and alternatively, to avoid and recover a preferential transfer pursuant to 11 U.S.C....
...857 (Bankr.M.D.Fla.1995) (finding that, as a matter of law, a transfer of exempt property could not be avoided as having been made with the intent to hinder, delay, or defraud creditors either under § 548 of the Bankruptcy Code or Florida Statutes § 726.105); Tavormina v....
...Because the Court has found that the $80,000 and $50,000 transfers could not be fraudulent conveyances as a matter of law, the state law fraudulent transfer claims asserted by the Trustee are moot and will not be addressed. IV. THE TRANSFER OF THE MEMBERSHIP IS NOT VOIDABLE UNDER §
726.106(1) OR §
726.105(1)(b) BECAUSE THE DEBTOR RECEIVED REASONABLY EQUIVALENT VALUE UNDER §
726.104(1). Florida Statutes §§
726.105(1)(b) [3] and
726.106(1) [4] deal with transfers made by a debtor without receiving reasonably equivalent value in exchange for the obligation while the debtor was insolvent or intended to incur or believed or should have believed that he or she would incur debts beyond his or her ability to pay as they became due....
...Based upon the facts and circumstances of this case and the value of the Membership falling above the 70% guideline adhered to in this Circuit, the Court finds that the $20,000 credit constitutes reasonably equivalent value for the transfer of the Membership within the meaning of Florida Statutes §§
726.105(1)(b) and
726.106(1). Therefore, the transfer of the Membership was not a fraudulent conveyance within the purview of §§
726.105(1)(b) and
726.106(1). V. THE TRANSFER OF THE MEMBERSHIP IS VOIDABLE UNDER §
726.105(1)(a). Under §
726.105(1)(a) [6] , the Court finds that the transfer of the Membership was made with the actual intent to hinder, delay, or defraud creditors of the Debtor. Under §
726.105(2), the Florida Legislature provides a list of factors, commonly referred to as badges of fraud, that a Court may use in determining whether a debtor acted with actual intent....
...Yale Materials Handling Corp.,
119 F.3d 1485, 1498 (11th Cir. 1997) (citing Johnson v. Dowell,
592 So.2d 1194, 1197 (Fla.2d Dist.Ct.App.1992)). The Court finds that several of these factors are met here. A nonexclusive list includes the following: (1) the transfer was to an insider, [7] §
726.105(2)(a); (2) before the transfer was made or obligation incurred, the debtor had been sued or threatened with suit, [8] §
726.105(2)(d); (3) the transfer was of substantially all of the debtor's assets, [9] §
726.105(2)(e); (4) the debtor was insolvent; and (5) the debtor removed or concealed assets, [10] §
726.105(2)(g). Based upon these badges of fraud, the Court finds that the Debtor transferred the Membership to Levenson with the intent to hinder, delay, or defraud his creditors under §
726.105(1)(a). VI. THE TRANSFER OF THE MEMBERSHIP IS NOT PROTECTED UNDER THE STATUTORY DEFENSE OF §
726.109(1). Even if a transfer is deemed a fraudulent conveyance under §
726.105(1)(a), *886 the transfer may not be voidable if the criteria for the statutory defense in §
726.109(1) are met....
...Accordingly, based upon the *887 Court's review of the totality of the circumstances, the Court finds that Levenson did not act in good faith and that she participated in the Debtor's scheme to defraud his creditors. The defense of §
726.109(1) is not applicable; the Membership was fraudulently transferred under §
726.105(1)(a) and is thus voidable....
...The Court further finds that the transfers of $80,000 and $50,000 are proceeds of an exempt asset and thus could not be the subject of a fraudulent conveyance as a matter of law. In addition, the Court holds that the Membership was not fraudulently transferred within the purview of §
726.105(1)(b) and §
726.106(1) because the Debtor received reasonably equivalent value in exchange therefor. The Court also holds that the transfer of the Membership was a fraudulent conveyance under §
726.105(1)(a) because the Debtor had the actual intent to fraudulently transfer the Membership....
...§§ 547 and 548, are time-barred. 2. Judgment is entered in favor of Levenson as to all counts regarding the $80,000 and the $50,000 transfers. 3. Judgment is entered in favor of the Trustee with respect to the transfer of the Membership under Florida Statutes § 726.105(1)(a)....
...of that statutory language which generally references stocks dealt in a securities exchange. [2] As indicated, the Trustee also asserts fraudulent conveyance claims under the Florida Uniform Fraudulent Transfer Act, specifically, Florida Statutes §§
726.105(1)(a),
726.105(1)(b), and
726.106 with respect to all three transfers....
...ecured or satisfied, but value does not include an unperformed promise made otherwise than in the ordinary course of the promisor's business to furnish support to the debtor or another person. See Fla.Stat. §
726.104(1) (1997). [6] Florida Statutes §
726.105, provides: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or i...
...debtor were unreasonably small in relation to the business or transaction; or (ii) intended to incur or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. See Fla.Stat. § 726.105 (1997)....
CopyCited 9 times | Published | United States Bankruptcy Court, M.D. Florida | 2001 Bankr. LEXIS 2019, 2001 WL 1906183
...n favor John J. Stewart, Jr. and Cheryl Stewart as guardians of William Stewart. B. The statutes. The Trustee alleges that Count II of her Amended Complaint, entitled "Constructive Fraud," is based on § 548(a)(2) of the Bankruptcy Code, and also on § 726.105(1)(b) of the Florida Statutes, as made applicable to the proceeding by § 544(b) of the Bankruptcy Code. The Trustee alleges that Count III of her Amended Complaint, entitled "Actual Fraud," is based on § 548(a)(1) of the Bankruptcy Code, and also on § 726.105(1)(a) of the Florida Statutes, as made applicable by § 544(b) of the Bankruptcy Code....
...or a transaction, for which any property remaining with the debtor was an unreasonably small capital; or (iii) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay as such debts matured. Section 726.105(1) of the Florida Statutes provides: 726.105....
...The limitations period. Section
726.110 of the Florida Statutes provides:
726.110. Extinguishment of cause of action A cause of action with respect to a fraudulent transfer or obligation under ss.
726.101-726.112 is extinguished unless action is brought: (1) Under s.
726.105(1)(a), within 4 years after the transfer was made or the obligation was incurred or, if later, within 1 year after the transfer or obligation was or could reasonably have been discovered by the claimant; (2) Under s.
726.105(1)(b) or s....
...believe that Cheryl Stewart received money from the Debtor between 1992 and 1995. (Transcript, p. 83). The Trustee has not established the existence of any transfer of the Debtor's interest in property as required by § 548 of the Bankruptcy Code or § 726.105 of the Florida Statutes....
...Barbara Stewart alleges, however, that the Debtor had made transfers to Cheryl Stewart with the intent to defraud a creditor, and also that the Debtor made the transfers without receiving reasonably equivalent value in return. Consequently, it appears that the Amended Verified Complaint, as drafted, is based on both § 726.105(1)(a) and § 726.105(1)(b) of the Florida Statutes....
...Debtor and Cheryl Stewart as tenants by the entireties, to certain other Charles Schwab accounts owned by Cheryl Stewart individually. The alleged transfers occurred in 1988 and 1989. As set forth above, the limitations period for actions under *276 § 726.105(1)(a) of the Florida Statutes is "4 years after the transfer was made" or, if later, within one year after the transfer "was or could reasonably have been discovered." The limitations period for actions under § 726.105(1)(b) of the Florida Statutes is "four years after the transfer was made." Fla....
...alue of $1,268,129.75 to Cheryl Stewart in January and February of 1989. E. Actual fraud the statute. In accordance with its terms, the limitations period set forth in §
726.110(1), which governs this case, applies only to causes of action under §
726.105(1)(a). Section
726.105(1)(a) provides that a transfer is fraudulent if the debtor made the transfer with "actual intent to hinder, delay, or defraud any creditor of the debtor." The one-year limitations period provided by §
726.110(1) does not apply to transfers that are constructively fraudulent as described in §
726.105(1)(b). Consistent with the statute, Barbara Stewart presented evidence and argument only to support her cause of action under §
726.105(1)(a)....
...(See Trial Memorandum by Barbara Stewart, Doc. 108). Consequently, the cause of action in Adversary Proceeding 96-850 will be evaluated only to determine whether the Debtor made the transfers alleged by Barbara Stewart with the actual intent to defraud any creditor. Subsection 726.105(2) sets forth a list of factors to consider in determining whether a debtor made a transfer with fraudulent intent. That subsection provides: 726.105....
...Yale Materials Handling Corporation,
119 F.3d 1485, 1498-99 (11th Cir.1997). Barbara Stewart contends that the Debtor engaged in a pattern of conduct designed to remove all of his assets from her reach. With respect to the specific factors listed in §
726.105(2), Barbara Stewart asserts that the following "badges of fraud" evidence the Debtor's intent to hinder, delay, or defraud her in the collection of the debt owed to her....
...In paragraphs 21 and 22, Barbara Stewart requested an award of attorney's fees and costs and demanded a jury trial. No additional allegations are included in the Complaint. It is clear that the Amended Verified Complaint consists of little more than a recitation of § 726.105 of the Florida Statutes. The initial paragraphs simply track the language of the statute regarding the operating elements of actual and constructive fraud, and the following paragraphs only recite general "badges of fraud" as they appear in § 726.105(2) of the Florida Statutes....
...in a fraudulent transfer action. The Trustee argues, in essence, that the finding by the Court that "[t]he Trustee has not established the existence of any transfer of the Debtor's interest in property as required by § 548 of the Bankruptcy Code or § 726.105 of the Florida Statutes" is erroneous....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1998 WL 895393
...We thus reverse the ruling of the trial court on this issue. Because of its resolution of the issue of the ownership of the Shoreline stock, the trial court never reached the question of whether the 1995 sale of Shoreline to FBS Acquisitions, Inc., constituted a fraudulent transfer under section 726.105(1)(b), Florida Statutes (1995)....
CopyCited 9 times | Published | United States Bankruptcy Court, S.D. Florida. | 21 Fla. L. Weekly Fed. B 17, 2007 Bankr. LEXIS 2714
...544(b), to avoid and recover the $10,000,000 Payment as a fraudulent transfer. In Count I of his complaint (the "Complaint" DE # 1), the Trustee has asserted a fraudulent transfer claim (the "Intentionally Fraudulent Transfer Claim") against the Bank pursuant to § 726.105(1)(a), Fla. Stat. In Count II, he has asserted a fraudulent transfer claim (the "Constructively Fraudulent Transfer Claim") against the Bank pursuant to 726.105(1)(b), Fla....
...The Court therefore stated that: The only remaining issue for trial as to Count II of the Complaint [the constructive fraud claim] will be whether the $10,000,000 Payment to the Bank was a "transfer" by BCC of an interest in property within the meaning of 11 U.S.C. § 544(b) and § 726.105(1)(b), Fla....
...that there are no genuine issues of material fact and that Plaintiff is entitled to a judgment as a matter of law finding that the Payment to the Bank was a transfer by BCC of an interest in its property within the meaning of 11 U.S.C. § 544(b) and § 726.105(1), Fla....
...to avoid transfers of an interest of the debtor in property. Butler v. NationsBank, N.A.,
58 F.3d 1022 (4th Cir.1995); *338 In re A.M. Operating Corp.,
32 B.R. 38 (Bankr.S.D.Fla.1983); In re Brasby,
109 B.R. 113 (Bankr.E.D.Pa.1990). Florida Statute §
726.105(1) is one such statute under which a trustee may avoid certain transfers....
...uine issue of material fact; the Payment constituted a "transfer" to the Bank by BCC of an interest in its property. II. THE COUNT II CONSTRUCTIVELY FRAUDULENT TRANSFER CLAIM: THE TRUSTEE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON HIS CLAIM UNDER § 726.105(1)(b), FLA. STAT. A. The Trustee is Entitled to Judgment, as a Matter of Law, on His Claim Under § 726.105(1)(b), Fla. Stat. The Trustee's Count II Constructively Fraudulent Transfer Claim arises under § 726.105(1)(b), Fla....
...it "took the transfer in good faith and for a reasonably equivalent value") fails as a matter of law. §
726.109(1), Fla. Stat., expressly provides that the "good faith for value" defense applies only to claims of voidability under subsection (a) of §
726.105(1). Thus, it is wholly inapplicable to the Trustee's claim in Count II of his Complaint, which asserts a claim under subsection (b) of §
726.105(1)....
...the meaning of 11 U.S.C. § 101(51A). This case did not involve the utilization of public markets or publicly traded securities. III. THE INTENTIONALLY FRAUDULENT TRANSFER CLAIM: THE TRUSTEE IS NOT ENTITLED TO JUDGMENT ON HIS ALTERNATIVE CLAIM UNDER § 726.105(1)(a), FLA. STAT. The Trustee's alternative avoidance count Count I, the Intentionally Fraudulent Transfer Claim arises under § 726.105(1)(a), Fla....
...Weiss,
410 F.Supp.2d 1146, 1159 (M.D.Fla.2006) (fraud generally not properly the subject of summary judgment because it requires an examination of the relevant facts and circumstances). Second, the record is devoid of evidence establishing direct proof of fraud, Fla. Stat. §
726.105; and, the presence of badges of fraud related to actual, not constructive, fraud is questionable....
CopyCited 8 times | Published | United States Bankruptcy Court, M.D. Florida | 14 Fla. L. Weekly Fed. B 411, 2001 Bankr. LEXIS 1361
...*677 In Count Two, White alleges that the Debtor fraudulently acquired her home using $179,500 in Planbridge's funds. White asks the Court to avoid the purchase of the Debtor's home as a fraudulent transfer pursuant to Florida's statute governing fraudulent transfers, § 726.105, and to award fees and costs....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 21 Fla. L. Weekly Fed. D 2095
...the co-trustees, and the P.A., finding that genuine issues of material fact remain unresolved regarding whether the defendants acted with fraudulent intent at the time of the loan from Mae Eisman and the Frank Eisman Trust to the P.A. West's F.S.A. § 726.105(1)....
CopyCited 8 times | Published | United States Bankruptcy Court, M.D. Florida | 1995 Bankr. LEXIS 1671, 1995 WL 692526
...only under section 502(e) of this title. 11 U.S.C. § 544(b). Applicable law has consistently been held to include state law. In re Davis,
138 B.R. 106 (Bankr.M.D.Fla.1992). The applicable law that the Plaintiff seeks to apply in this proceeding is §
726.105 Fla....
...ditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (a) With the actual intent to hinder, delay, or defraud any creditor of the debtor. . . . Fla.Stat. § 726.105 (1987)....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2003 WL 22658104
...t time, and the insider had reasonable cause to believe that the debtor was insolvent. The Fraudulent Transfer Act contains its own statute of limitations which "extinguishes" a cause of action under the act, unless an action is commenced: (1) Under s. 726.105(1)(a), within 4 years after the transfer was made or the obligation was incurred, or, if later, within 1 year after the transfer or obligation was or could reasonably have been discovered by the claimant; (2) Under s. 726.105(1)(b) or s....
...726.106(2), within 1 year after the transfer was made or the obligation was incurred. §
726.110, Fla. Stat. (2001). While section
726.110(1) contains a savings provision if the creditor fails to discover the existence of a preferential transfer within the four-year period, for actions based on section
726.105(1)(a) involving actual fraud, there is no such "discovery" provision under section
726.110(3) for transfers to insiders under the constructive fraud provision of section
726.106(2), the section relied upon by Paragon....
...ls as having "four years from the filing of the UCC statement or one year from discovery of the fraudulent transfer in which to bring suit." Moreover, we were clearly discussing "badges of fraud" which are requirements of a fraudulent transfer under section 726.105....
CopyCited 8 times | Published | Court of Appeals for the Eleventh Circuit | 2014 WL 1226852
...that is voidable under applicable law by a creditor holding an unsecured
claim.” 11 U.S.C. § 544(b)(1). Menotte argues that she can avoid the first three
transfers under § 544(b)(1) because they are voidable under Florida law,
specifically the Florida Uniform Fraudulent Transfer Act (FUFTA). See Fla. Stat.
§ 726.105(1)(b)(1)....
...§ 548(a)(1)(B).
Under FUFTA, a transfer is fraudulent when a debtor “[w]as engaged . . . in
a . . . transaction for which the remaining assets of the debtor were unreasonably
small” and failed to receive reasonably equivalent value. Fla. Stat. §
726.105(1)(b)(1)....
CopyCited 8 times | Published | United States Bankruptcy Court, M.D. Florida | 10 Fla. L. Weekly Fed. B 310, 1997 Bankr. LEXIS 303, 79 A.F.T.R.2d (RIA) 1657, 30 Bankr. Ct. Dec. (CRR) 753, 1997 WL 155152
...nt, or by showing that the debtor transferred property to an insider for an antecedent debt when the debtor was insolvent and the insider should have known that the debtor was insolvent. Fla.Stat. ch.
726.106 (1995). [1] Another section of the UFTA, §
726.105, provides a list of factors which can be examined to infer a debtor's fraudulent intent....
...These factors include a debtor's transfers to insiders or family members, the debtor's retention of possession or control over the property after the transfer, lack of consideration *26 for the transfer, and insolvency of the debtor. Fla.Stat. ch. 726.105 (1995)....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1996 Fla. App. LEXIS 7991, 1996 WL 426187
...had the burden to prove that the transfer to Morton was not fraudulent, even though Morton appeared and presented evidence on the issue. Because the trial court erred by placing the burden of proof on Tradewinds and further erred in determining that section 726.105, Florida Statutes (1993), was inapplicable to the transaction, we reverse....
...The case proceeded to trial with testimony, and arguments by attorney for Plaintiff and attorney for MORTON. Based upon the evidence introduced at trial, this Court finds that the Defendant, TRADEWINDS has failed to sustain its burden of proof. 17. The Court holds that Section 726.105, Florida Statutes, is inapplicable here and *1324 therefore the cases cited by MORTON are not persuasive....
CopyCited 8 times | Published | United States Bankruptcy Court, M.D. Florida | 1990 Bankr. LEXIS 313, 1990 WL 12265
...Smith, the duly appointed and acting Trustee for Stephen L. Smith. Each of the counts in the Trustee's Complaint alleges a fraudulent transfer from the Debtor to the Defendants. Counts I through IV seek avoidance of the transfer pursuant to Fla. Stat. §
726.105 and §
726.106 (1988), the new Uniform Fraudulent Transfer Act (UFTA) which became effective on January 1, 1988. Counts V and VI seek relief under Fla.Stat. § 726.01 (1987), the predecessor to Florida's current fraudulent transfer statute. Finally, Count VII seeks relief pursuant to both Fla.Stat. § 726.01 (1987) and Fla.Stat. §
726.105 (1988)....
...ming that those Counts fail to state a cause of action against the Defendants upon which relief can be granted. It is undisputed that each of the allegedly fraudulent transfers transpired prior to January 1, 1988. The Defendants argue that Fla.Stat. §
726.105 and §
726.106 (1988) are not retrospective in application and, therefore, the new statute does not apply to transfers made prior to its effective date of January 1, 1988....
...It is further ORDERED, ADJUDGED AND DECREED that Counts I, II, III and IV of the Trustee's Complaint be, and the same are hereby, dismissed. It is further ORDERED, ADJUDGED AND DECREED that the portions of Count VII be, and the same are hereby, dismissed as they relate to Fla.Stat. § 726.105 (1988)....
CopyCited 8 times | Published | District Court, S.D. Florida | 1999 U.S. Dist. LEXIS 2277, 1999 WL 102184
...Defendants again argue the Trustee has failed to plead these counts with particularity. The Court has addressed this argument and based on the discussion above, Defendants' motions to dismiss counts VIII, IX and X will be denied. VIII. Violation of Florida Statute §
726.105 and §
726.106 (Counts XI and XII) Defendants argue the Trustee has failed to state a cause of action under Florida's Uniform Fraudulent Transfer Act. Fla. Stat § 726. 101 et seq. The Trustee brings claims under Section
726.105 and
726.106. Although the Trustee does not indicate in the amended complaint under which subsections of § 726 the claims are brought, the Trustee in his response to Defendants' motions indicates the claims are brought under Sections
726.105(1)(b) and
726.106(1)....
CopyCited 8 times | Published | Court of Appeals for the Eleventh Circuit | 443 F.3d 767, 158 Fed. Appx. 256, 2005 U.S. App. LEXIS 27738, 2005 WL 3881425
...ap-pellees Westgate Vacation Villas, Ltd. and Westgate Lakes, Ltd. (collectively, “West-gate”). The bankruptcy court set aside the payments as fraudulent transfers of the Debtor’s property, pursuant to 11 U.S.C. § 544 (b) and Florida Statutes § 726.105(l)(b)....
...airs filed in its bankruptcy proceedings. *770 Accordingly, the bankruptcy Trustee initiated an adversary proceeding against Westgate to recover the transfers made from the Internacional account, pursuant to 11 U.S.C. § 544 (b) and Florida Statutes § 726.105(l)(b)....
...In addition, Florida law provides that a transfer made by a debtor is voidable as fraudulent where the debtor made the transfer: (i) -without receiving reasonably equivalent value in exchange; (ii) and reasonably should have believed it would incur debts beyond its ability to pay as they came due. See Fla. Stat. § 726.105 (l)(b)....
CopyCited 8 times | Published | District Court, S.D. Florida | 1997 WL 834169
...ubmit proposed Findings of Fact and Conclusions of Law, which counsel did. On March 7, the court entered written Findings of Fact and Conclusions of Law in which he ruled that the Trustee had failed to meet his burden of proof under Florida Statutes § 726.105....
...52 advisory committee notes, and the conclusions of law under the de novo standard. The Court finds that reversal is appropriate because the bankruptcy court erred on several critical findings of fact. The record shows that the Trustee made out at least a prima facie case that the transfer was fraudulent. Florida Statutes § 726.105 sets forth the elements constituting a fraudulent transfer....
...assets of the debtor were unreasonably small in relation to the business or transaction; or (2) Intended to incur, or believed or reasonably should have believed that he *338 would incur, debts beyond his ability to pay as they became due. Fl.Stat. § 726.105(1) (West 1988 & Supp. 1997). In determining whether a debtor harbored actual intent as referred to in § 726.105(1)(a), eleven factors, or badges of fraud, listed at § 726.105(2)(a)-(k) may be considered....
...Plave involved questions such as "What do you think is going to happen in David's criminal case?" and "When will the indictment come down?" and "How do you feel?" ( Id. at 49-50.) The Court finds that the transfer was the equivalent of Debtor transferring money to her husband, and thus to an "insider" as referred to in § 726.105(2)(a). [5] Section 726.105(d) lists a badge of fraud as "Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit." At the time of the transfer, Debtor was being sued by the Resolution Trust Corporation....
...1 at 11); in December 1995, the RTC obtained a judgment against her for $1.2 million, (Tr. at 40-41). The court acknowledged the existence of this badge of fraud but found it alone to be insufficient to show fraudulent intent by the Debtor. (Findings of Fact at 5 n. 2.) Section 726.105(h) states, "The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred." The court found that "[t]he Debtor further testified that her...
...at 3.) As discussed supra, Mr. Plave performed no work for Debtor, (Tr. at 34), so he did not provide Debtor with reasonably equivalent value. Further, the record does not identify any assets given by Mr. Paul to the Debtor in exchange for the $45,000 transfer. [6] Section 726.105(i) states, "The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred." Debtor filed for Chapter 7 bankruptcy on July 25, 1994, i.e., one year and three weeks after the transfer....
CopyCited 7 times | Published | United States Bankruptcy Court, M.D. Florida | 25 Fla. L. Weekly Fed. B 55, 2014 Bankr. LEXIS 4134, 60 Bankr. Ct. Dec. (CRR) 32
...there is a ‘genuine’ dispute as to those facts.” 28 The Transfers are Avoidable as Constructive Fraudulent Transfers The Trustee argues that the Transfers are both actually and constructively fraudulent under § 548 of the Bankruptcy Code and § 726.105 of the Florida Statutes....
...and set aside the transfer under consideration.” 32 The undisputed evidence shows that a Ponzi scheme was ongoing while TCA made the Transfers to SunTrust, and any of the hundreds of investor-creditors in this case could have brought a claim under § 726.105 of the Florida Statutes....
...ed on the record evidence, the Court cannot find that TCA received any value or benefit from the mortgage payments by TCA to Sun-Trust. The Transfers are avoidable as constructive fraudulent transfers under § 548(a)(1)(B) of the Bankruptcy Code and § 726.105(l)(b) of the Florida Statutes via § 544 of the Bankruptcy Code....
...ved by Defendant under 11 U.S.C. §§ 544 (b), 548(a)(1)(A), 550 and Florida Statutes 726.01 etal. Count II: Actual Fraud - Avoidance and Recovery of Fraudulent Transfers Received by Defendant under 11 U.S.C. §§ 544 (b)(1) and 550 and Fla. Stat. §§
726.105 (l)(a) and
726.108 Count III: Constructive Fraud - Avoidance and Recovery of Fraudulent Transfers Received by Defendant under 11 U.S.C....
...Transport, Inc.,
341 B.R. 333, 334 (Bankr.S.D.Fla.2006). . In re McCarn’s Allstate Fin., Inc.,
326 B.R. 843, 852 (Bankr.M.D.Fla.2005) ("Once a court determines that transfers are avoidable under Bankruptcy Code section 548 or under Florida Statutes section
726.105, (available to the Trustee under Bankruptcy Code section 544(b)), the Court must then look to Bankruptcy Code section 550 to determine the liability of the transferee of the avoided transfer.”); see also In re Int’l Admin....
CopyCited 7 times | Published | United States Bankruptcy Court, S.D. Florida.
...ections, including § 544." Id. However, § 544 only empowers a trustee to avoid a transfer "that is voidable under applicable law by a creditor holding an unsecured claim[.]" § 544(b)(1). In this case, the Trustee relies on FUFTA, Florida Statutes section 726.105, et seq....
CopyCited 7 times | Published | District Court, S.D. Florida | 79 Fed. R. Serv. 3d 781, 2011 U.S. Dist. LEXIS 52256, 2011 WL 1869352
...Accordingly, Count II must be dismissed. 4. Count IX: Fraudulent Transfers Plaintiffs allege that four individual Defendants, Judith Gale, Lisa Tashman, *1369 Julien Siegel, and Mariland Tashman, were the recipients of fraudulent transfers in violation of Fla. Stat. § 726.105. (DE #64 ¶¶ 859-65). Section 726.105 is part of Florida's Uniform Fraudulent Transfers Act ("UFTA"), which lays out a statutory scheme for creditors to set aside a debtor's transfer of assets to a third party under certain circumstances....
...Alexis, Case No. 09-20865-CIV,
2009 WL 3161830, at *4 (S.D.Fla.2009) ("[UFTA] was adopted to prevent an insolvent debtor from transferring assets away from creditors when the debtor's intent is to hinder, delay, or defraud any of its creditors."). Section
726.105(1) of UFTA, invoked by Plaintiffs here, provides: A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurr...
...the debtor were unreasonably small in relation to the business or transaction; or 2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. Fla. Stat. § 726.105(1)....
...1998) ("In determining whether the circumstantial evidence is sufficient to establish fraudulent intent, the court should investigate the transfer for the existence of badges of fraud."). The UFTA lists eleven nonexclusive "badges of fraud" that may be considered in determining actual intent. Fla. Stat. § 726.105(2)....
...Count IX contains only the following allegations as to Mariland Tashman: "The Paragon Entities also paid Mariland Tashman monies from the Paragon operating account. There is no evidence that she ever provided services for Paragon." (DE #64 ¶ 862). To state a claim for constructive fraud under section 726.105( l )(b), a plaintiff must allege that a debtor made a transfer or incurred an obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: (1) Was engaged or was about to engag...
...ets of the debtor were unreasonably small in relation to the business or transaction; or (2) Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his ability to pay as they became due. Fla. Stat. 726.105(1)(b) (emphasis added)....
...09-81225-CIV,
2010 WL 962953, at *4 (S.D.Fla. March 15, 2010) (Hurley, J.) (same); Ben-Yishay v. Mastercraft Dev., LLC, Case No. 08-14046-CIV,
2009 WL 6387928, at *4 (S.D.Fla. Dec. 14, 2009) (Moore, J.) (applying Rule 9(b) pleading requirements to fraudulent transfer claims under Fla. Stat. §
726.105); Special Purpose Accounts Receivable Co-op....
...n was incurred. (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Fla. Stat. § 726.105....
CopyCited 7 times | Published | United States Bankruptcy Court, S.D. Florida. | 20 Fla. L. Weekly Fed. B 331, 2007 Bankr. LEXIS 832
...This testimony is buttressed by the Debtor's credible statement that she had once tried to purchase a home, but was denied due to her poor credit rating. Conclusions of Law: The Trustee seeks avoidance and recovery of fraudulent transfers made by the Debtor to Crosdale pursuant to § 548(a)(1)(B), § 550 and Florida Statute §
726.105(a), §
726.105(1)(b) and §
726.106(1)....
...Consequently, the transfer of it to Crosdale for nothing in return, does not constitute less then reasonably equivalent value. As such, the Trustee has failed to prove the third element. As a result, the § 548(a)(1)(B) and Florida Statute §
726.106(1) claims fail. Trustee's Florida Statutes §
726.105(1)(b) Claim The Trustee also seeks the avoidance of the transfer of the 1213 property pursuant to Florida Statutes §
726.105(1)(b)....
...ive "reasonably equivalent value". The Court has already determined, in the analysis of the § 548(a)(1)(B) claim, that the Debtor did receive reasonably equivalent value for her bare legal title. Therefore, for the same reasons the Florida Statutes § 726.105(1)(b) claim also fails. Trustee's § 548(a)(1)(A) and Florida Statutes § 726.105(1)(a) Finally, the Trustee seeks to avoid of the transfer of 1213 property pursuant *563 to § 548(a)(1)(A) and Florida Statutes § 726.105(1)(a)....
...As such, the Trustee also failed to prove this element. Based on the foregoing the Court concludes that the Trustee has failed to prove that the Debtor acted with "actual intent". As such, the claims pursuant to § 548(a)(1)(A) and Florida Statutes § 726.105(1)(a) are each denied....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2002 Fla. App. LEXIS 238, 2002 WL 51949
...The decisive issues presented in this case are (1) whether Prestige's transfer of the Jaeger property to the Goodmans was made to delay, hinder, or defraud Aldrich & Ramsey such that the conveyance should be declared void and the property made subject to execution, see §
56.29(6), Fla. Stat. (1999), or §
726.105, Fla....
CopyCited 7 times | Published | District Court, M.D. Florida | 2015 U.S. Dist. LEXIS 15146, 2015 WL 518826
...As there is no general duty on the part of the Bank to monitor accounts, and the d/b/a account did not show a diversion of funds, summary judgment will be entered in favor of the Bank on Count II. 3. Count III: Fraudulent Transfers In Count III, pursuant to Florida’s Uniform Fraudulent Transfer Act, Fla. Stat. § 726.105 (l)(a) (“FUFTA”), the Receiver seeks to avoid (and recover amounts representing) (1) movement of funds “into and amongst” “shadow accounts” at the Bank listed in Exhibit B of the Third Amended Complaint (Dkt....
...itor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (a) [w]ith actual intent to hinder, delay, or defraud any creditor of the debtor....” Fla. Stat. § 726.105 (l)(a)....
...The elements of a FUFTA cause of action are therefore (1) a defrauded creditor, (2) a debtor who intended fraud, and (3) a conveyance of property which is applicable by law to the payment of the debt due. Id. And “proof that a transfer was made in furtherance of a Ponzi scheme establishes actual intent to defraud under § 726.105(l)(a) without the need to consider the badges of fraud.” Id....
CopyCited 6 times | Published | United States Bankruptcy Court, S.D. Florida.
...Shamrock Jewelers (together, the "Debtors") 1 to the Defendants under the actual and constructive fraud provisions of sections 2 548(a)(1)(A)-(B) and under the actual and constructive fraud provisions of section 544 incorporating Florida Statutes §§ 726.105(1)(a)-(b), and to recover the alleged fraudulent transfers from the Defendants pursuant to section 550....
...ing solely from a Debtor's deposit into its own unrestricted bank account. To prove his fraudulent transfer claims, the Trustee must show that there *907 was a fraudulent transfer under section 548 or under section 544 incorporating Florida Statutes § 726.105(1)(a)....
...that is voidable under applicable law by a creditor holding an [allowable] unsecured claim." The Trustee argues that he can avoid the relevant transfers under section 544(b)(1) because they are voidable under Florida law, specifically Florida Statutes § 726.105(1)(a). Under this provision, a transfer made within four years before the filing of a bankruptcy petition is avoidable if the debtor made such transfer "[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor[.]" Fla. Stat. § 726.105 (1)(a)....
...n was incurred. (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Fla. Stat. § 726.105 (2)....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2000 WL 1671507
...d, that the proceeds were transferred into their joint account or that her husband immediately transferred the funds into his offshore trust account. Therefore, she cannot be held to be a transferee under the fraudulent conveyance statute. We agree. Section 726.105, Florida Statutes (1997), provides in pertinent part: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation wa...
CopyCited 6 times | Published | Court of Appeals for the Eleventh Circuit
...whether the creditor's claim arose before or after the transfer was made or the obligation
was incurred, if the debtor made the transfer or incurred the obligation:
(a) With actual intent to hinder, delay, or defraud any creditor of the debtor;
Fla. Stat. §726.105 (2002);
(1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose
claim arose before the transfer was made or the obligation was incurred if the debtor
made the transfer or incurred...
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 4820, 2016 WL 1238265
...1 The trial court voided the assignments of three promissory notes from National Auto Service to appellant, National Auto Properties, Inc. (National Auto Properties), pursuant to the Florida Uniform Fraudulent Transfer Act (FUFTA), our state’s codification of the Uniform Fraudulent Transfer Act (Uniform Act). See §§ 726.105(l)(a),' .108(l)(a), Fla....
...FUFTA allows a creditor to unwind a transfer of the debtor’s property to a third party — and thus to use the property to satisfy its claims against the debtor — when the act deems the transfer “fraudulent” as to creditors. See generally §§
726.105-.108. The act identifies three categories of such transfers:’ (1) transfers made “[w]ith actual intent to hinder, delay, or defraud” creditors, §
726.105(l)(a); (2) certain types of transfers for which the debtor does not receive “reasonably equivalent value” in exchange for the . asset transferred, §§
726.105(l)(b), .106(1); and (3) transfers to an insider of the debtor for an antecedent debt when the debtor is insolvent and the insider has reasonable cause to know that, §
726.106(2)....
...are lost. The statute is titled “Extinguishment of cause of'action” and provides as follows: A cause of action with respect to a fraudulent transfer or obligation under ss.
726.101-726.112 is extinguished unless action is brought: ■ (1)Under .s.
726.105(l)(a) [actual fraudulent transfers], within 4 years after the transfer was made or the obligation was incurred or, if later, within 1 year after the transfer or obligation was or could reasonably have been discovered by the claimant; (2) Under s.
726.105(l)(b) or s....
CopyCited 6 times | Published | United States Bankruptcy Court, S.D. Florida. | 23 Fla. L. Weekly Fed. B 127, 2011 Bankr. LEXIS 3137, 55 Bankr. Ct. Dec. (CRR) 88
...hers, serves only to limit the Trustee's ability to bring avoidance actions and does not extend the statute of limitations for the underlying state law fraudulent conveyance theory. The three counts in the Complaint rely on Florida Statutes sections
726.105(1)(a),
726.105(1)(b), and
726.106 as the "applicable law" under section 544. Florida Statutes section
726.110(1) provides that a cause of action under section
726.105(1)(a) is extinguished unless such action is brought within four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant. For actions brought under sections
726.105(1)(b) or
726.106(1), the cause of action is extinguished if it is not brought within four years after the transfer was made or the obligation was incurred....
CopyCited 6 times | Published | United States Bankruptcy Court, M.D. Florida | 21 Fla. L. Weekly Fed. B 394, 2008 Bankr. LEXIS 1889, 2008 WL 2553308
...The other defendants have been dismissed from the proceeding. (Doc. 24). The Complaint against Island Capital Management, LLC as the remaining Defendant contains three Counts. Count I is an action to avoid and recover a fraudulent transfer pursuant to § 544(b) of the Bankruptcy Code and § 726.105( l )(b) of the Florida Statutes....
CopyCited 5 times | Published | United States Bankruptcy Court, S.D. Florida.
...the original money judgment be declared nondischargeable pursuant to 11 U.S.C. §§ 523(a)(2)(A), 523(a)(2)(B), 523(a)(4), and 523(a)(6); the recovery and turnover of the fraudulently transferred accounts receivables pursuant to 11 U.S.C. § 550 and §
726.105.(1) and §
726.106(1), Florida Statutes, and an accounting of the disposition of all assets transferred by Supreme and Mr....
...AB by, inter alia, forging records and transferring accounts receivables. Judgment shall enter for EAB on Count VI. Count VIII, IX and X seek avoidance and recovery of all assets transferred in contravention of Florida's fraudulent transfer statute, §
726.105(1), §
726.106(1)....
CopyCited 5 times | Published | United States Bankruptcy Court, S.D. Florida. | 17 Fla. L. Weekly Fed. B 107, 2003 Bankr. LEXIS 1937, 42 Bankr. Ct. Dec. (CRR) 176
...And the disappearance of film inventory, along with the mysterious payments to Sino-Sound, when taken together, clearly indicate that there was a scheme to strip the company of its assets. As the plaintiff has pointed out, the Court must consider whether the so-called "badges of fraud" exist in this case. Under Fla. Stat. § 726.105, a transfer is fraudulent as to present or future creditors if the debtor made or incurred the obligation: (a) With actual intent to hinder, delay, or defraud any creditor of the debtor; or (b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: 1....
CopyCited 5 times | Published | United States Bankruptcy Court, M.D. Florida | 2011 WL 768745
...[4] Jumping to the conclusion, the Chapter 7 trustee wins in both adversary proceedings. SWC together with Jasgur's estate owns the photos and other assets. The transfer to Africh is an avoidable fraudulent transfer under § 544(b) of the Bankruptcy Code [5] and Florida Statute § 726.105(1)(a), and the Chapter 7 trustee is entitled to return of the assets under § 550 of the Bankruptcy Code....
...*595 CHAPTER 3: Fox Transferred the PITA Assets With the Actual Intent to Defraud SWC's Creditors In Count VII of the Second Amended Complaint, [125] the Chapter 7 trustee asserts that Fox/SWC transferred the PITA Assets to Africh Maintenance with the actual intent to defraud SWC's creditors. Under Florida Statute § 726.105(1), the Chapter 7 trustee has the burden of proof to establish the transfer of the PITA Assets to Africh Maintenance was done with actual fraudulent intent to hinder, delay, or defraud creditors. Because there is rarely direct proof of actual intent to defraud, courts often infer intent from circumstantial evidence and the conditions surrounding the transaction, i.e. the badges of fraud. [126] Section 726.105(1)(a) sets forth a non-exhaustive list of factors courts may consider: (a) The transfer was to an insider....
...Because Africh did not purchase the PITA Assets in good faith, he cannot rely on the good faith defense of Florida Statute §
726.109(1). The transfer is avoided in its entirety. Under § 550 of the Bankruptcy Code, when a transfer is avoided under § 544(b) and applicable state law like Florida Statute §
726.105, the Chapter 7 trustee is allowed to recover either the asset itself or its reasonably equivalent value....
...in Adversary Proceeding 04-77 and holds that the debtor, SWC, owned the PITA Assets free and clear of all liens as of February 12, 2002. The Court then finds in favor of the Chapter 7 trustee on Count VII (Actual Fraudulent Transfer under Fla. Stat. § 726.105(1)(a)) of the Second Amended Complaint in Adversary Proceeding 04-79, holding the transfer of the PITA Assets to Africh was an avoidable fraudulent transfer under Bankruptcy Code § 544(b) and Florida Statute § 726.105(1)(a)....
...When Africh Maintenance bought the PITA Assets, it also bought any rights SWC, now the rightful owner, had to recover items still in these other parties' possession. [121] Ex. 58. [122] Doc. No. 312 in the Main Case. [123] Ex. 232. [124] Ex. 230. [125] Count VII of the Second Amended Complaint in 6:04-ap-79 uses "§
726.105(1)(b)," the section for a constructive fraudulent transfer, but the text of the Count makes clear the Chapter 7 trustee's intent was to claim an actual fraudulent transfer under Fla. Stat. §
726.105(1)(a). [126] Mejia v. Ruiz,
985 So.2d 1109, 1113 (Fla. 3d DCA 2008); In re XYZ Options, Inc.,
154 F.3d 1262, 1271 (11th Cir. 1998). [127] Mejia,
985 So.2d at 1113. [128] Because the Court finds actual fraudulent intent under §
726.105(1)(a), the Court need not address the Chapter 7 trustee's argument for finding a constructively fraudulent transfer under §
726.105(1)(b) (Count VIII of the Second Amended Complaint, Doc....
CopyCited 5 times | Published | District Court, M.D. Florida | 44 Collier Bankr. Cas. 2d 1496, 2000 U.S. Dist. LEXIS 12850, 2000 WL 1262566
...Nine separate counts are alleged against each Vincens and Manklow for a total of eighteen (18) counts. These eighteen (18) counts against Vincens and Manklow relate to alleged voidable transfers of money under 11 U.S.C. §§ 547, 548(1), 550, and Florida Statute § 726.105(1)(a)-(b)....
CopyCited 5 times | Published | Court of Appeals for the Eleventh Circuit
...transformed his individual property into home furnishings owned with his wife as
tenants-by-the-entireties through an adversary proceeding to which Hill's wife may
be made a party.
B. THE HOMESTEAD EXEMPTION
7
Compare 11 U.S.C. § 548 with Fla. Stat. chs.
726.105,
222.29, and
222.30.
12
The exemption of a debtor’s homestead from process in Florida is
constitutionally protected....
...provide a clearer, more direct response to
fraudulent transfers” of the sort at issue here. Levine,
134 F.3d at 1053. Therefore,
transfers which would be avoidable as fraudulent under §§
222.29 and
222.30 were
also previously avoidable under §
726.105....
...Id.
In sum, the issue of whether a claimed Florida homestead exemption can be
successfully challenged if the home was purchased with non-exempt assets with the
actual intent to hinder, delay, or defraud creditors in violation of Fla. Stat. § 726.105
is an unsettled question of Florida law.14 Because the answer to this question is
dispositive of the claims in this case and because it raises important issues of state
14
For further discussion of this issue see Jules S....
...9.150:
DOES ARTICLE X, SECTION 4 OF THE FLORIDA CONSTITUTION
EXEMPT A FLORIDA HOMESTEAD, WHERE THE DEBTOR
ACQUIRED THE HOMESTEAD USING NON-EXEMPT FUNDS
WITH THE SPECIFIC INTENT OF HINDERING, DELAYING, OR
DEFRAUDING CREDITORS IN VIOLATION OF FLA. STAT. §
726.105 OR FLA....
CopyCited 4 times | Published | United States Bankruptcy Court, M.D. Florida | 19 Fla. L. Weekly Fed. B 43, 2005 Bankr. LEXIS 2024, 2005 WL 2837520
...Section
222.30 adopts the definitional section from Florida Statutes § 726, "unless the application of a definition would be unreasonable". This cross-referencing of the two statutory provisions suggests that they are to be read in tandem. In re Levine,
134 F.3d 1046, 1053 (11th Cir.1998). Section
726.105(2) sets forth a number of factors or "badges of fraud" which can be considered in determining whether a debtor made a transfer with the actual intent to hinder, delay or defraud a creditor and provides in pertinent part: (2) In determ...
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2012 WL 4746471, 2012 Fla. App. LEXIS 16833
...nsfer under section
726.110(1), Florida Statutes (2002), VLFI moved to dismiss. The statute provides: A cause of action with respect to a fraudulent transfer or obligation under ss.
726.101-726.112 is extinguished unless action is brought: (1) Under s.
726.105(l)(a), within 4 years after the transfer was made or the obligation was incurred or, if later, within 1 year after the transfer or obligation was or could reasonably have been discovered by-the claimant....
...her the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (a) With actual intent to hinder, delay, or defraud any creditor of the debt- or. ..." § 726.105(1), Fla....
CopyCited 4 times | Published | United States Bankruptcy Court, M.D. Florida | 8 Fla. L. Weekly Fed. B 277, 25 U.C.C. Rep. Serv. 2d (West) 966, 1994 Bankr. LEXIS 2066, 1994 WL 738999
...he schedules on record contained the collateral involved in this controversy. Based on the foregoing, this Court is satisfied that the description of the collateral is sufficient and was validly perfected. FRAUDULENT TRANSFER § 544(b) AND FLA.STAT. § 726.105(1)(b) Having concluded that the security agreement under consideration is enforceable and the Financing Statement sufficiently described the collateral, thus the security interest was properly perfected, the next issue involves the Trustee's claim that granting the security interest involved was a fraudulent transfer thus voidable pursuant to § 544(b) of the Bankruptcy Code and Fla.Stat. § 726.105(1)(b)....
...§ 544(b) provides: "The Trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under Section 502 of this title...." Florida Statute § 726.105 Transfers fraudulent as to present and future creditors provides: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whether the creditor's claim arose before or after transfer was made or the obligation...
...In sum granting a security interest clearly falls within the term of a "transfer" of both Statutes. It is equally clear that § 544(b) is not a special voiding section itself but merely permits the Trustee to borrow a voiding power of an applicable state law from a creditor. Under Fla.Stat. § 726.105(1), the voiding power granted by the statute is available to a creditor, whether the claim of the creditor arose before or after the transfer....
...This record leaves no doubt that this debtor had creditors before the transfer also creditors whose claim arose after the transfer. This leaves for consideration whether or not this record would support the conclusion that the transfer in question granting the security interest was fraudulent under Fla.Stat. § 726.105(1)(b)....
...The fact of the matter is, as pointed out earlier, the Debtor never received any proceeds from the Musella Plan loan. Based on the foregoing this Court is satisfied that the security interest granted to the Musella Plan to secure the repayment of $138,000.00 was a fraudulent transfer within the provision of Fla.Stat. 726.105(1)(b) and voidable by the Trustee pursuant to Sec....
CopyCited 4 times | Published | Court of Appeals for the Eleventh Circuit
...ROFR were constructively fraudulent and sought to (1) avoid both the
modification of the Blocking Right and the Teltronics ROFR and the transfer of the
patents pursuant to the Assignment, and (2) recover, pursuant to Sections 544 and
550 of the Bankruptcy Code and Florida Statutes
726.105(1)(b) and
726.106(1),
the value of those transfers.
A....
...the court so orders, the value of such property, from . . . the initial transferee of
such transfer or the entity for whose benefit such transfer was made.” 11 U.S.C. §
550(a).
The trustee alleges constructive fraudulent transfer under Florida Statutes
726.105(1)(b) and
726.106(1).
Under Section
726.105(1)(b), a transfer made by a debtor is fraudulent as to
a creditor if the debtor (1) made the transfer “[w]ithout receiving a reasonably
equivalent value in exchange for the transfer or obligation,” and (2) either (A)
“[w]as e...
CopyCited 4 times | Published | District Court, S.D. Florida | 2011 U.S. Dist. LEXIS 136254, 2011 WL 5914034
...pal, but was actually money which had been fraudulently procured from later-investors. The Receiver is attempting to recover these excess payments for MRT LLC. The Amended Complaint contains four counts: (I) Fraudulent Transfer under Florida Statute Section
726.105(l)(a); (II) Fraudulent Transfer under Florida Statute Section
726.105(l)(b); (III) Fraudulent Transfer under Florida Statute Section
726.106(1); and (TV) Unjust Enrichment....
CopyCited 4 times | Published | District Court, M.D. Florida | 2013 WL 2039307, 2013 U.S. Dist. LEXIS 69152
...tember 6, 2011, and December 13, 2011. TemPay alleges that these transfers were fraudulently used by the Biltres Defendants to “pay down and to pre-pay their mortgage through October, 2012.” See Affidavit of Marc Mellman (Dkt. 96-4), ¶ 7. Under section 726.105(l)(a), Florida Statutes, a transfer by a debtor “is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made ..., if the debtor made the transfer ......
CopyCited 4 times | Published | United States Bankruptcy Court, N.D. Florida | 2016 Bankr. LEXIS 773
...1995). Section 305 permits a court to suspend proceedings like the Court did in Rookery Bay. Id. Suspension of these proceedings would preserve the 547 preference period while permitting the parties to litigate in state court under Florida’s UFTA (See §
726.105 & §
726.106 Fla....
CopyCited 4 times | Published | United States Bankruptcy Court, M.D. Florida | 8 Fla. L. Weekly Fed. B 416, 1995 Bankr. LEXIS 327, 1995 WL 116253
...The Trustee in Count I seeks a turnover to the estate of certain personal properties set forth in Paragraph 15 of the Complaint pursuant to § 542. Count II purports to state a claim based on § 544(b) of the Bankruptcy Code and Fla.Stat. §§ 726.01 and 726.105(1)(b), alleging a fraudulent transfer of certain properties to one of the named defendants, the Mizrahi Family Trust (Mizrahi Trust)....
...The failure in a complaint to cite a statute, or to cite the correct statute, does not affect the merits of a claim if the factual allegations are sufficient. Albert v. Carovano,
851 F.2d 561, 571 n. 3 (2d Cir.1988). The claim in Count III is based on the same Code provision and is coupled with Fla.Stat. §§ 726.01,
726.105(1)(b) and 726.07. Again, it appears that the specific allegations in Paragraphs 30, 31, and 34 also state claims based on Fla.Stat. §§
726.105(1)(a) and
726.106(1)....
...constructive fraud claim based on Fla.Stat. §
726.106(1). This left for consideration the claim in Count III based on Fla.Stat. § 725.105(1)(a) alleging the actual intent of the Debtor to defraud; the claims in Counts II and III based on Fla.Stat. §
726.105(1)(b) alleging transfers without consideration where the debtor intended to incur, or reasonably should have believed that he would incur, debts beyond his ability to repay; and the alter ego or veil piercing *325 claim set forth in Count III, renumbered as Count IV....
...Subsequent to the final evidentiary hearing, the Trustee moved to amend the Complaint to conform to evidence and testimony. Specifically, the Trustee sought to amend Count II to include an allegation of actual fraud by transferring with the actual intent to hinder, delay or defraud a creditor under Fla.Stat. § 726.105(1)(a)....
...Rule 15(b) provides that when issues are tried by the implied consent of the parties, they shall be treated as if they had been raised in the pleadings. The evidence presented at the hearing was directed at establishing the "badges of fraud" enumerated in Fla.Stat. § 726.105(2)....
...Therefore, the net value transferred was $526,000. No consideration was received. The Trustee has alleged in Count II that this transfer occurred when the Debtor intended to incur, or reasonably should have believed he would incur, debts beyond his ability to repay. Under Fla.Stat. § 726.105(1)(b), such a transfer constitutes a fraudulent transfer as to present and future creditors....
...for which the Debtor was personally liable. Therefore, there is little doubt that the Debtor reasonably should have believed he would incur debts beyond his ability to repay. Again, the Debtor testified that he received no consideration. Pursuant to section 726.105(1)(b), the transfer of the beach cottage is voidable as a fraudulent transfer as to present and future creditors....
...d faith transferee who took for value. Because the wife and daughter received no consideration when the property was transferred into the Trust, there is no defense to the voidability of the fraudulent transfer. Not only is this Court convinced that section 726.105(1)(b) mandates a finding that a fraudulent transfer occurred, but this Court also believes the same result is reached under section 726.105(1)(a). Section 726.105(2) lists eleven "badges of fraud" which are factor to consider in determining actual intent under 726.105(1)(a)....
...on was incurred. (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Fla.Stat. § 726.105(2)....
CopyCited 4 times | Published | United States Bankruptcy Court, M.D. Florida | 12 Fla. L. Weekly Fed. B 305, 1999 Bankr. LEXIS 924, 1999 WL 566815
...audulent transfer pursuant to § 548(a)(2) and § 550 of the Bankruptcy Code. In Count III, the Debtor seeks to avoid and recover the transfer as a constructively fraudulent transfer pursuant to § 544(b) of the Bankruptcy Code and Florida Statute §§
726.105(1)(b) and
726.106(1)....
...n unreasonably small capital; or (iii) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay as such debts matured. Count III of the Complaint is based on § 544 of the Bankruptcy Code and §
726.105 and §
726.106 of the Florida Statutes, and also seeks to avoid and recover the transfer of the rents as a constructively fraudulent transfer....
...is voidable under applicable laws, including state laws to avoid fraudulent transfers, by a creditor holding an allowable unsecured claim. Florida's laws regarding the avoidance of constructively fraudulent transfers are set forth in Florida Statute §
726.105(1)(b) and Florida Statute §
726.106(1). Florida Statute §
726.105(1)(b) provides:
726.105 Transfers fraudulent as to present and future creditors....
...as a result of the transfer or obligation. These Florida statutes do not restrict the analysis of the transfers at issue to a period of only one year prior to the filing of a bankruptcy petition. In other material respects, however, Florida Statute §
726.105(1)(b) and Florida Statute §
726.106(1) are analogous "in form and substance" to § 548(a)(2) of the Bankruptcy Code....
CopyCited 4 times | Published | United States Bankruptcy Court, M.D. Florida | 19 Fla. L. Weekly Fed. B 100, 2006 Bankr. LEXIS 18, 45 Bankr. Ct. Dec. (CRR) 231, 2006 WL 29206
...NOTES [1] The parties stipulated that Alphamed is an insider, that the Patent is worth much more than the consideration paid, and that the debtor was insolvent when the assignment was recorded. [2] The Trustee's complaint sought relief under 11 U.S.C. §§ 548(a)(1)(A) and (B), as well as Section 726.105(1)(b), Florida Statutes....
...ng knowledge apply to a creditor holding 75% of the claims? Fifty-one percent? One percent? [10] The record supports the conclusion that the assignment was made primarily to satisfy the requirements of Alphamed's potential investors or lenders. [11] Section 726.105(1)(b) provides another basis for a trustee to avoid a transfer....
CopyCited 4 times | Published | District Court, M.D. Florida | 2013 WL 247004, 2013 U.S. Dist. LEXIS 8972
...or constructive fraud. See e.g. Wiand v. Waxenberg,
611 F.Supp.2d 1299, 1318-19 (M.D.Fla.2009); In re World Vision Entertainment, Inc.,
275 B.R. 641 (M.D.Fla.2002). And in count I, the Receiver proceeds under both of these theories. Under Fla. Stat. §
726.105 (1)(a), codifying actual fraud, the Receiver claims the transfers of false profits were fraudulent because Nadel (the debtor) caused the hedge funds to make the transfers to Cloud as part of a scheme with actual intent to hinder, delay, or defraud creditors of Nadel, the fund managers and/or the hedge funds. 13 As such, the Receiver alleges a right to repayment of the investors’ commingled principal investment money in an amount equivalent to Cloud’s false profits from one or more of the hedge funds. The Receiver also proceeds under Fla. Stat. §§
726.105 (1)(b) and
726.106(1), for constructive fraud....
...v. Waxenberg,
611 F.Supp.2d 1299, 1312 (M.D.Fla.2009) citing In re McCarn’s Allstate Fin. Inc.,
326 B.R. 843, 850 (M.D.Fla.2005) (existence of a ponzi scheme suffices as a matter of law to prove actual intent to defraud for purposes of Fla. Stat. §
726.105 (1)(a))....
...estors was from cash infused by new investors. Waxenberg, supra, at 1312 . Here, the Receiver’s motion for summary judgment adopts this ponzi-scheme method to establish that the monies transferred to Cloud were fraudulent transfers in violation of § 726.105(1)(a)....
...Although the Receiver points to the start date of Nadel’s scheme as the critical date, the relevant period is the time of the transfers. In re Old Naples Sec., Inc.,
343 B.R. 310, 319 (M.D.Fla.2006) (examining intent at time transfers made when interpreting Fla. Stat. §
726.105 (1)(a)); Veigle v. U.S.,
873 F.Supp. 623 (M.D.Fla.1994) (determining transferor’s intent to defraud at time transfer made for purposes of Fla. Stat.
726.105(1)(a)); Bay View Estates Corp....
...e barred by the statute of limitations, creates a genuine issue of material fact. Pursuant to Fla. Stat. §
726.110 : A cause of action with respect to a fraudulent transfer or obligation ... is extinguished unless action is brought- *1339 (1) Under §
726.105(l)(a), within 4 years after the transfer was made or the obligation was incurred or, if later, within 1 year after the transfer or obligation was or could reasonably have been discovered by the claimant ... (2) Under §
726.105(l)(b) or §
726.106(1), within 4 years after the transfer was made or the obligation was incurred ... Applying this statute, a transfer is avoidable as fraudulent under §
726.105(1)(a) if the Receiver commences an action within four years after the transfer or within one year after the transfer could reasonably have been discovered by the claimant....
...See doc. 22, third affirmative defense. Though Cloud incorrectly cited to the Bankruptcy Code provision, the applicable statute is Fla. Stat. §
726.109 (1) that provides a “good faith” defense for transfers made with actual fraud under Fla. Stat. §
726.105 (1)(a). Specifically, the statute provides: “A transfer or obligation is not voidable- under s.
726.105(1)(a) against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee.” However, it is well-settled that a receiver is entitled to recover from winning investors profits above...
...Upon consideration of the evidence before me, I find that Nadel operated the hedge funds as a ponzi scheme at the time of the transfers to Cloud, and that the transfers to Cloud were made with the actual intent to hinder, delay, or defraud as required by Fla. Stat. § 726.105 (1)(a)....
...the business or transaction; (2) intended to, believed, or reasonably should have believed that he or she would incur debts beyond his or her ability to pay them as they became due; or (3) was insolvent at the time of the transfer. See Fla. Stat. §§
726.105 (1)(b)(1)-(2) and
726.106(1). The Receiver asserts that the transfers were also fraudulent under Fla. Stat. §
726.105 (1)(b) because Nadel caused the hedge funds to make those transfers and Nadel, the fund managers, and the hedge funds were engaged or were about to engage in a business or transaction for which their remaining assets were unreasonably smal...
CopyCited 4 times | Published | District Court, M.D. Florida | 2013 WL 247072, 2013 U.S. Dist. LEXIS 8995
...or constructive fraud. See e.g. Wiand v. Waxenberg,
611 F.Supp.2d 1299, 1318-19 (M.D.Fla.2009); In re World Vision Entertainment, Inc.,
275 B.R. 641 (M.D.Fla.2002). And in count I, the Receiver proceeds under both of these theories. Under Fla. Stat. §
726.105 (1)(a), codifying actual fraud, the Receiver claims the transfers of false profits were fraudulent because Nadel (the debtor) caused the hedge funds and Traders to make the transfers to Morgan as part of a scheme with actual intent to hind...
...13 As such, the Receiver al *1355 leges a right to repayment of the investors’ commingled principal investment money in an amount equivalent to Morgan’s false profits from one or more of the hedge funds and Traders. The Receiver also proceeds under Fla. Stat. §§
726.105 (l)(b) and
726.106(1), for constructive fraud....
...v. Waxenberg,
611 F.Supp.2d 1299, 1312 (M.D.Fla.2009) citing In re McCarn’s Allstate Fin. Inc.,
326 B.R. 843, 850 (M.D.Fla.2005) (existence of a ponzi scheme suffices as a matter of law to prove actual intent to defraud for purposes of Fla. Stat. §
726.105 (1)(a))....
...stors was from cash infused by new investors. Waxenberg, supra, at 1312 . Here, the Receiver’s motion for summary judgment adopts this ponzi-scheme method to establish that the monies transferred to Morgan were fraudulent transfers in violation of § 726.105(1)(a)....
...Although the Receiver points to the start date of Nadel’s scheme as the critical date, the relevant period is the time of the transfers. In re Old Naples Securities., Inc.,
343 B.R. 310, 319 (M.D.Fla.2006) (examining intent at time transfers made when interpreting Fla. Stat. §
726.105 (1)(a)); Veigle v. U.S.,
873 F.Supp. 623 (M.D.Fla.1994) (determining transferor’s intent to defraud at time *1356 transfer made for purposes of Fla. Stat.
726.105(1)(a)); Bay View Estates Corp....
...ng his criminal activity. 27 Morgan fails to alter the overwhelming quantum of evidence the Receiver presents. 5. affirmative defense Fla. Stat. §
726.109 (1) provides a “good faith” defense for transfers made with actual fraud under Fla. Stat. §
726.105 (1)(a): “A transfer or obligation is not voidable under s.
726.105(l)(a) against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee.” In its answer, Morgan raised this defense....
...nding certain of the Receiver’s constructive fraud FUFTA claims barred by the statute of limitations (doc. 89). In light of my finding here that the transfers to Morgan are avoidable under the actual fraud cause of action spelled out in Fla. Stat. § 726.105 (1)(a), I need not determine whether any of the transfers were constructively fraudulent....
...ly Nadel’s scheme) such that Morgan was sufficiently on notice from the allegations in the original complaint that the Receiver could seek recovery of transfers received from Traders. In other words, I find that the claims arising under Fla. Stat. § 726.105 (1)(a) in the amended complaint seeking recovery of the transfers from Traders relate back to the filing of the original complaint and are thus not barred by the statute of limitations....
...Nadel, case no. 8:09-cv-87-T-26TBM (M.D.Fla.) (doc. 454). The amended complaint, filed on October 29, 2010, was within one year of the Receiver’s appointment as receiver for Traders, and thus, the Receiver’s claims seeking recovery under Fla. Stat. § 726.105 (1)(a) for the Traders transfers are not barred by the statute of limitations....
...Upon consideration of the evidence before me, I find that Nadel operated the hedge funds and Traders as a ponzi scheme at the time of the transfers to Morgan and that the transfers to Morgan were made with the actual intent to hinder, delay, or defraud as required by Fla. Stat. § 726.105 (1)(a)....
...the business or transaction; (2) intended to, believed, or reasonably should have believed that he or she would incur debts beyond his or her ability to pay them as they became due; or (3) was insolvent at the time of the transfer. See Fla. Stat. §§
726.105 (1)(b)(1)-(2) and
726.106(1). The Receiver asserts that the transfers were also fraudulent under Fla. Stat. §
726.105 (1)(b) because Nadel caused the hedge funds to make those transfers and Nadel, the fund managers, and the hedge funds and Traders were engaged or were about to engage in a business or transaction for which their remaining assets weré unre...
CopyCited 4 times | Published | District Court, S.D. Florida | 2008 U.S. Dist. LEXIS 11787, 2008 WL 398927
...e debtor made the transfer or incurred the obligation: (a) With actual intent to hinder, delay, or defraud any creditor of the debtor; or (b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation . . . Fla. Stat. § 726.105....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 20134, 2010 WL 5391523
...The motion alleged that the third-party defendants "fraudulently and otherwise improperly transferred, among other things, approximately $150,000.00 in funds from DAA's operating account" to themselves and to entities they owned and controlled. The motion cited to section 726.105(2) of the Florida Statutes (2009) [1] to support Paulshock's claim for liability against the third-party defendants....
...cause Paulshock failed to plead or prove fraud. We again disagree. Paulshock's verified motion for impleader expressly alleged that the third-party defendants had engaged in the fraudulent transfer of DAA funds. The motion also specifically cited to section 726.105 of the Florida Statutes....
...The procedures governing proceedings supplementary do not permit the trial court to impose this obligation jointly and severally among multiple third-party defendants. [2] AFFIRMED in part, REVERSED in part, and REMANDED. MONACO, C.J. and LAWSON, J., concur. NOTES [1] Section 726.105(1)(a) of the Florida Statutes (2009) provides in relevant part, as follows: 726.105....
CopyCited 4 times | Published | United States Bankruptcy Court, S.D. Florida.
...debtor that is voidable under state or federal non-bankruptcy law by a creditor holding an unsecured claim. In re Topcor, Inc.,
132 B.R. 119 (Bkrtcy. N.D.Tex.1991). In the case at hand, the Trustee alleges that the transfers are voidable pursuant to §
726.105(1)(a) Fla.Stat....
...§
726.110(1) bars the Trustee from maintaining an action for fraudulent transfers prior to 1990. Fla.Stat. §
726.110(1) provides the following: A cause of action with respect to a fraudulent transfer or obligation under §§
726.101-726.112 is extinguished unless action is brought: (1) Under §
726.105(1)(a), within 4 years after the transfer was made or the obligation was incurred or, if later, within 1 year after the transfer or obligation was or could reasonably have been discovered by the claimant; (emphasis added)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1992 WL 192997
...during the pending litigation to protect the asset. Fraudulent intent may be inferred when a debtor transfers a substantial portion of his assets to a relative, for little or no consideration, after the debtor has been sued or threatened with suit. § 726.105, Fla....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2008 WL 1883658
...ion: Does Article X, Section 4 of the Florida Constitution exempt a Florida homestead, where the debtor acquired the homestead using non-exempt funds with the specific intent of hindering, delaying, or defrauding creditors in violation of Fla. Stat. § 726.105 or Fla....
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida. | 9 Fla. L. Weekly Fed. B 148, 1995 Bankr. LEXIS 1400
...Likewise, equity compels the imposition of an equitable lien against the real property owned by Charles Covino. The next transfer the Trustee seeks to avoid is the alleged transfer to Todd Covino through the annuity. The Trustee contends that this transfer is avoidable under Florida Statute Sections
726.105(1)(a),
726.105(1)(b) and
726.106(1)....
...by constituting a transfer. With such an assumption, the transfer was from a non-exempt asset (entitlement to to settlement proceeds) to an exempt *780 asset (annuity). The Trustee claims this transfer was a fraudulent transfer under Florida Statute Section 726.105(1)(a) which provides: A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the t...
CopyCited 3 times | Published | United States Bankruptcy Court, M.D. Florida | 18 Fla. L. Weekly Fed. B 436, 2005 Bankr. LEXIS 2129, 2005 WL 2483338
...The alleged expiration of the statute of limitations is an affirmative defense, on which a defendant bears the burden of proof. Brown v. Hutch,
156 So.2d 683 (Fla. 2d DCA 1963); Jones v. State,
745 So.2d 403 (Fla. 3d DCA 1999). A. Florida Statute §
726.110(1) The limitations period for Florida Statute §
726.105(1)(a) is set forth in Florida Statute §
726.110(1), which provides, in pertinent part, that a cause of action can be brought "within one year after the transfer ....
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida.
...ues that if the Court determines that the Letter Agreement *553 is enforceable, the transfer of the right to receive the commission from the sale of the Jupiter Property is fraudulent and should be avoided pursuant to 11 U.S.C. § 544 and Fla. Stat. §
726.105(1)(b) and
726.106(1)....
...333, 334 (Bankr.S.D.Fla.2006) (citations omitted). "Consequently, the Trustee may utilize the state fraudulent conveyance statutes, which have a four-year statute of limitations." Id. In this matter, the Trustee seeks to avoid the transfer under Florida's constructive fraud statutes, sections
726.105(1)(b) and
726.106(1) Fla Stat. §
726.105(1)(b) titled "Transfers fraudulent, as to present and future creditors" states in pertinent part: A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the tra...
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida. | 13 Fla. L. Weekly Fed. B 344, 2000 Bankr. LEXIS 1068, 36 Bankr. Ct. Dec. (CRR) 237
...s in exchange for less than reasonably equivalent value. The Complaint contains two counts for avoidance of fraudulent transfers pursuant to 11 U.S.C. § 548(a)(1)(A) and (a)(1)(B), and two counts under their state law counterparts, Florida Statutes §
726.105(1)(a) and (b), and §
726.106....
...It also contains a count for recovery of the value of the transfers under 11 U.S.C. § 550. [1] To prevail on his fraudulent transfer claims under both state and federal law, the Trustee must show that FinFed made the transfers to Poindexter with intent to defraud or delay creditors. § 548(a)(1)(A); Fla.Stat. § 726.105(1)(a)....
...The Trustee must also prove that FinFed (i) was insolvent at the time of the transfers; (ii) was engaged in a business for which there was little remaining capital; or (iii) intended to incur debts for which it could not pay at the time of the transfers. § 548(a)(1)(B), Fla.Stat. §§
726.105(1)(a) and
726.106....
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida. | 56 Collier Bankr. Cas. 2d 135, 19 Fla. L. Weekly Fed. B 208, 2006 Bankr. LEXIS 691, 46 Bankr. Ct. Dec. (CRR) 120
...under both sections may be analyzed simultaneously. See Stillwater Nat'l Bank & Trust Co. v. Kirtley (In re Solomon),
300 B.R. 57 (Bankr.N.D.Okla.2003); Levit v. Spatz (In re Spatz),
222 B.R. 157 (N.D.Ill.1998). Under § 548(a)(1)(B) and Fla. Stat. §
726.105(1)(b), the plaintiff must prove that the debtors did not receive "reasonably equivalent value" in exchange for the transferred property....
CopyCited 3 times | Published | Court of Appeals for the Eleventh Circuit | 2015 A.M.C. 1321, 2015 WL 151703, 2015 U.S. App. LEXIS 511
...[Shipping] owed National Maritime in excess of $90,000.00.” Id.
The district court ruled that the transfer of proceeds was fraudulent on two
grounds. First, the district court found that the transfer was made with “actual
intent to hinder, delay, or defraud,” Fla. Stat. § 726.105(1)(a)....
...The record supports its decision that the
transfer to Straub was a fraudulent transfer to an insider, Fla. Stat. §
726.106(2).
And we need not address whether the transfer alternatively was fraudulent because
Burrell Shipping “inten[ded] to hinder, delay, or defraud,” id. §
726.105(1)(a).
IV....
CopyCited 3 times | Published | United States Bankruptcy Court, M.D. Florida | 16 Fla. L. Weekly Fed. B 131, 2003 Bankr. LEXIS 533, 2003 WL 21289976
...The Complaint under attack sets forth four claims. The claim in Count I is based on Fla. Stat. §
222.30 and is based on the allegation that Ms. Harrold fraudulently converted non-exempt assets into exempt assets. The claim in Count II is based on Fla. Stat. §
726.105, and charges Ms....
...Based on this analysis, the Motion to Dismiss is well taken with respect to this Count and should be granted. The claim in Count I should be dismissed. With respect to the claim set forth in Count II, the Trustee seeks to set aside the transfer of funds to the insurance company. The Trustee relies on Fla. Stat. § 726.105 to accomplish this and 11 U.S.C....
...g creditor holding an unsecured claim that could have under applicable state law, attack the transfer in question. Count II of the Complaint is devoid of such allegations, and the Trustee clearly fails to plead the prerequisite to rely on Fla. Stat. § 726.105....
...While the power to avoid a transfer under this statute could be available not only to a creditor in existence at the time of the transfer, but also a future creditor of the debtor, one must still plead that the purchase of the annuities was with the actual intent to hinder, delay or defraud creditors. Fla. Stat. § 726.105(1)(a). Accordingly, the Motion to Dismiss is well taken and should be granted as to Count II without prejudice to the Trustee to plead the elements of Fla. Stat. § 726.105 and 11 U.S.C....
CopyCited 3 times | Published | District Court, S.D. Florida | 2007 U.S. Dist. LEXIS 96324, 2007 WL 4924572
...Castre-Gosman with the actual intent to hinder, delay or defraud a creditor of the Debtor." Third Am. Compl. ¶ 146. Following a trial in the above adversary proceeding brought by the Trustee against the Gosmans, Bankruptcy Judge Lessen voided the transfers under 11 U.S.C. 548, 11 U.S.C. 544(b)(1) and Section 726.105(1) *834 of the Florida Statutes. [2] Judge Lessen determined that Mr. Gosman, the Debtor, made the transfers with actual intent to hinder, delay or defraud creditors under both Federal and Florida law. 11 U.S.C. § 548(a)(1)(A); Fla. Stat. § 726.105(1)....
...Gosman was not paying his debts as they came due at the time of each of the transfers, and each transfer deepened Mr. Gosman's insolvency. The transfers had the added effect of leaving Mr. Gosman with inadequate capital. Therefore, all of the transfers are avoided under Fla. Stat. *835 § 726.105....
...Second, I must determine whether the issue of Mr. Gosman's intent to defraud was necessarily decided in the prior proceeding. Because intent to defraud is an element required for a finding that a debtor has fraudulently transferred assets, see 11 U.S.C. § 548(a)(1); Fla. Stat. § 726.105(1), I find that the second factor for collateral estoppel is also established....
...e transfer." Lessen Order at 28 (citing In re Scott Wetzel Servs., Inc.,
293 B.R. 791, 794 (Bankr.M.D.Fla.2003)). According to the Lessen Order, the applicable non-bankruptcy law referenced above includes the Florida statute on fraudulent transfers, Section
726.105(1), of the Florida Statutes....
...Judge Lessen further explained that the Florida statute has similar elements to the federal statute on fraudulent transfers, 11 U.S.C. § 548, but the Florida statute is not limited to transfers which take place within one year of the date of filing of the petition. Lessen Order at 28-29. Section 726.105(1) of the Florida Statutes provides: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if th...
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...irrevocable Family Trusts after defaulting on the loan they had guaranteed. 4 The trial
court found Biel Reo’s Family Trust-related claims to be time-barred because
§
56.29(6) makes use of substantive provisions of the Uniform Fraudulent Transfer
Act (UFTA), see §
726.105, Fla....
...CIATE JUDGE,
CONCUR.
6
See, e.g., Mejia,
985 So. 2d at 1112-13 (explaining that for purposes of §
56.29(6)(b), “[w]hether a defendant’s actions are made or contrived to ‘delay,
hinder, or defraud’ must be determined with reference to section
726.105(1)
[UFTA].”); Nationsbank, N.A....
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida.
...Discussion In his Motions to Dismiss, the Debtor acknowledges that the facts alleged in the complaints must be assumed as true [DE #18 in Adv. No 16-1045, p. 2, n. 1], Therefore the Court assumes that the, Bank Account Transfer and the Condominium Transfer are avoidable under §
726.105 and §
726.106 of the Florida Statutes, unless the claims are barred by the four year statute of limitations in Fla....
CopyCited 3 times | Published | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 8334
...evious statutory law and codifies common law unless expressly replaced. See §
726.111, Fla.Stat. (1988). Under the UFTA, any transfer made with “actual intent to hinder, delay or defraud” any present or future creditor is a fraudulent transfer. §
726.105(l)(a), Fla.Stat. (1993). Because of the difficulty of proving actual intent, past statutory law, existing case law and the UFTA look to indicia of intent commonly known as “badges of fraud.” §
726.105(2); Cleveland Trust Co. v. Foster,
93 So.2d 112 (Fla.1957); Russ v. Blackshear,
88 Fla. 573 ,
102 So. 749 (1925). In this case, fraudulent intent may be presumed from evidence of numerous “badges of fraud” as delineated in section
726.105(2): the transfer of Munim, P.A....
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida. | 9 Fla. L. Weekly Fed. B 20, 1995 Bankr. LEXIS 743, 27 Bankr. Ct. Dec. (CRR) 344
...§ 546, and the deadline for filing this adversary proceeding was July 29, 1994, two years after the Trustee's appointment. Fla.Stat. §
726.110 provides as follows: A cause of action with respect to a fraudulent transfer or obligation . . . is extinguished unless action is brought (1) Under §
726.105(1)(a), within 4 years after the transfer was made or the obligation was incurred. . . . (2) Under §
726.105(1)(b) or §
726.106(1), within 4 years after the transfer was made or the obligation was incurred; or (3) Under §
726.106(2), within 1 year after the transfer was made or the obligation was incurred. The Trustee's theories against Brandt rely upon Fla.Stat. §§
726.105(1)(a) & (b) and *599
726.106(1)....
...[3] Claims which rely upon these statutes could have been brought on May 7, 1992, the day that this bankruptcy case was commenced. Therefore, this adversary proceeding was filed timely with respect to such claims. However, in addition to the claims which rely upon Fla.Stat. §§
726.105(1)(a) & (b) and
726.106(1), the Trustee also relies upon Fla....
...uidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal equitable, secured or unsecured." Fla.Stat. §
726.102(3) & (4). The record in this case offers no evidence to show that Florida West was a creditor of itself. [3] Fla.Stat. §
726.105(1) provides as follows: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the...
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1997 WL 545583
...Given the alleged disparity between the value of the FLDE assets and the consideration paid for the purchase, we conclude that genuine issues of material fact remain unresolved as to whether this transaction constitutes a fraudulent transfer under section 726.105, Florida Statutes (1989), of the Uniform Fraudulent Transfer Act....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida
...d an adversary proceeding in the Berkman Case seeking to avoid the transfers from Berkman to the Trustee, and the subsequent transfers from the Trustee to the Synectic Funds and Aleo, as fraudulent transfers under FUFTA, 30 specifically Fla. Stat. §§
726.105 (l)(a),
726.106(1)0»), and
726.106(1) (the “Berkman Adversary”)....
...ed. The default provisions of Section 4.2 are not implicated and there is no basis on which the Court can now find that the Global Settlement Agreement is void. Because the absence of reasonably equivalent value is a required element of Fla. Stat. §§
726.105 (l)(b) and
726.106(1), the Court finds that Plaintiffs have not met their burden of proof on their constructively fraudulent transfer claims. Therefore, the Court grants summary judgment in favor of the Trustee, the Sy-nectic Funds, and Aleo on Plaintiffs’ Counts II and III. 2. Good Faith Section
726.109(1), Florida Statutes, provides a defense to claims made under Fla. Stat. §
726.105 (l)(a), stating A transfer or obligation is not voidable under s.
726.105(l)(a) against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee....
...608, 612 (Bankr.M.D.Fla.2007). . In re Vista Bella, Inc.,
511 B.R. 163, 192-93 (Bankr.S.D.Ala.2014). . Turner v. Fitzsimmons,
673 So.2d 532, 536 (Fla. 1st DCA 1996); Cullen v. Seaboard Air Line R. Co.,
63 Fla. 122 ,
58 So. 182 , 184 (1912). . Fla. Stat. §
726.105 (l)(a). . Fla. Stat. §
726.105 (l)(b)....
CopyCited 2 times | Published | District Court, S.D. Florida | 2013 WL 5770677, 2013 U.S. Dist. LEXIS 152869
...ant to §
56.29(6)(a), Florida Statutes.” Count II is titled, “Action to Avoid and Recover Fraudulent Transfer Pursuant to § 725.105(l)(a), Florida Statutes.” Count III is titled, “Action to Avoid and Recover Fraudulent Transfer Pursuant to §
726.105(l)(b), Florida Statutes.” Count IV is titled, “Action to Avoid and Recover Fraudulent Transfer Pursuant to § 725.106(1), Florida Statutes.” Count V is titled, “Action to Avoid and Recover Fraudulent Transfer Pursuant to § 725.106...
...e the transfer was not fraudulent.” (citation omitted)). While National Maritime brings five claims for relief, the Court only addresses two of these, as they are dispositive of the relief National Maritime is seeking. A. Count II: Florida Statute Section 726.105(l)(a) Count II alleges the transfer violates Florida Statute Section 726.105(l)(a). Under Section 726.105(l)(a), “[a] transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation ......
...ngent’ and not yet reduced to judgment.” (alterations added; citations and internal quotation marks omitted)). In determining a debtor’s actual intent and whether it was to “hinder, delay, or defraud any creditor of the debtor,” Fla. Stat. §
726.105 (l)(a), the UFTA looks to indicia of intent commonly known as “badges of fraud,” Amjad Munim, M.D., P.A.,
648 So.2d at 152 ; see also In re Am....
...he transfer, whether the transfer occurred shortly before or after a substantial debt was incurred, and whether the debtor transferred the essential assets of the business to a lienor who transferred them to an insider of the debtor. See Fla Stat. §§ 726.105(2)(a)-(k)....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 20 Fla. L. Weekly Fed. B 167, 2006 Bankr. LEXIS 3609, 2006 WL 3792686
...Trustee Judgment (Memo.Op.) at pp. 24-25. The Court further held: "Additionally, the Trustee may recover property fraudulently transferred by the Debtor with actual intent to hinder, delay, and defraud the United States as described by the Court pursuant to Fla. Stat. § 726.105, 28 U.S.C....
CopyCited 2 times | Published | District Court, S.D. Florida | 2012 WL 5868578
...er § 550(a)(1).” Martinez v. Hutton (In re Harwell),
628 F.3d 1312, 1317 (11th Cir.2010). In Counts III and IV of the Complaint, the Trustee brought claims for constructively fraudulent transfers pursuant to 11 U.S.C. § 548 (a)(1)(B), Fla. Stat. §
726.105 (l)(b), and Fla....
...09-AP-00715,
2011 WL 1783805 , at *4 (Bankr.M.D.Fla. Apr. 26, 2011). The similarities between these statutes allows a reviewing court to analyze these claims together. See In re Venice-Oxford Assocs.,
236 B.R. 820, 834 (Bankr.M.D.Fla.1999) (analyzing transfers under Fla. Stat. §
726.105 and §
726.106 contemporaneously with 11 USC *840 § 548 ); see also Freeman v....
...ects of the alleged fraudulent transfers under §§ 548 and 550(a)(1) and the parallel Florida statutes.”); In re Stewart,
280 B.R. 268, 274 (Bankr.M.D.Fla.2001) (holding that a trustee had not met her burden under § 548 of the Bankruptcy Code or §
726.105 of the Florida Statutes)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 8024, 2015 WL 3387966
...3d 1053, 1055 (Fla. 4th DCA 2014) (quoting Cohen v. Arvin,
878
So. 2d 403, 405 (Fla. 4th DCA 2004)).
We first find Yaralli was a creditor for purposes of the fraudulent
transfer statute.1 In Yaralli’s affidavit in support of his opposition to ARC’s
1 Section
726.105(1), Florida Statutes (2012), provides:
(1) A transfer made or obligation incurred by a debtor is fraudulent
as to a creditor, whether the creditor’s claim arose before or after
2
motion, he classified his contributions as loans....
...of a “claim” under Chapter 726, thereby making him a creditor.
Since Yaralli can be considered a creditor, we disagree with the trial
court’s conclusion that he needed to bring a derivative action as opposed
to a direct action. To proceed under section 726.105, one need be only a
creditor, and a creditor can be someone who is not a shareholder....
...of
fraud’ to determine whether the transfer was made with the intent to
defraud creditors.” Gen. Elec. Co. v. Chuly Int’l, LLC,
118 So. 3d 325, 327
(Fla. 3d DCA 2013) (citing Beal Bank, SSB v. Almand & Assocs.,
780 So.
2d 45, 60 (Fla. 2001)). Section
726.105(2), Fla....
...We find that
there remain genuine issues of material fact as to two of the badges of
fraud: (1) whether the transfer was “of substantially all the debtor’s
assets,” and (2) whether the “value of the consideration received by the
debtor was reasonably equivalent to the value of the asset transferred.” §
726.105(2)(e), (h)....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 15 Fla. L. Weekly Fed. B 188, 2002 Bankr. LEXIS 559, 2002 WL 1160722
...Carpenter; Capital for Life, Inc; and Donald Snellgrove (collectively referred to as Brokers/Counter-Defendants). The Debtor's Counterclaim sets forth seven Counts summarized as follows. In the claim in Count I, the Debtor seeks to avoid constructively fraudulent transfers pursuant to Fla. Stat. § 726.105(1)(b)....
...n be recovered as a fraudulent transfer based on the contention that the Debtor did not receive the reasonable equivalent value for all of these payments paid to Liberatore and these Brokers. The claims asserted by the Debtor are based on Fla. Stat. § 726.105, which grants the power to a creditor and in the context of a bankruptcy to a chapter 11 debtor pursuant to Section 544(b) of the Code, to set aside transfers if a debtor did not receive a reasonable equivalent value in exchange for a transfer of an obligation. The claim asserted here by the Debtor is not based on actual fraud and there is no allegation here that these payments were made with the specific intent to hinder, delay, or defraud creditors, the theory under Fla. Stat. § 726.105(a)....
...d the fact that what they received ultimately became worthless and was required to repay those commissions, is not sufficient to find and conclude that the payments should be set aside and recovered under fraudulent transfer theory, under Fla. Stat. § 726.105(1)(b)....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 2007 Bankr. LEXIS 4422, 2007 WL 4699047
...the transferred property in question. [76] Section 544 acts in tandem with state law. The Debtor, through Wiegand's actions and dominion, is located and acted in Florida. The applicable substantive state law is Florida law. Florida Statutes Sections 726.105(1)(a) and (1)(b) provide for the avoidance of transfers made or obligations incurred by a debtor arising from actual or constructive fraud....
...641, 656 (Bankr. M.D.Fla.2002). Remedies for a plaintiff seeking to avoid a transfer are set forth in Section
726.108. Those remedies are limited by the defenses to a fraudulent transfer action set forth in Section
726.109. A transfer is not voidable pursuant to Section
726.105(1)(a) where the transferee took the transfer "in good faith and for a reasonably equivalent value ....
...services. He performed services and assisted the Debtor with carrying out Contract 91. The remuneration he is entitled to was not established. The Trustee failed to establish by a preponderance of the evidence the elements of either Florida Statutes Section 726.105(1)(a) or Section 726.105(1)(b)....
...s of the debtor were unreasonably small in relation to the business or transaction; or 2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or ability to pay as they became due. FLA. STAT. § 726.105(1) (West 2000)....
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit
...DISCUSSION
The following legal issue was the primary focus of the parties’ briefs on appeal:
whether a claimed Florida homestead exemption can be successfully challenged if the
home is purchased with non-exempt assets with the actual intent to hinder, delay, or
defraud creditors in violation of Fla. Stat. § 726.105.11 In Bank Leumi Trust Co....
...(Jost’s testimony at the § 341 meeting and 2004
examination), and affirmed the bankruptcy court’s
finding. We construe this alternative holding as a
conclusion that the exclusion of evidence was harmless.
As indicated below, we disagree.
11
Section 726.105 provides that
(1) A transfer made or obligation incurred by a
debtor is fraudulent as to a creditor, whether
the creditor’s claim arose before or after the
transfer was made or the obligation was
i...
...the homestead exemption, see supra note 13, a debtor’s
intent to hinder, delay, or defraud creditors is not
relevant to a claimed homestead exemption. Key Bank
counters that the transfers which resulted in Jost’s
ownership of the unencumbered homestead were void ab
initio under § 726.105, and thus a homestead exemption
was never recognized in law.
9
were transfers with intent to hinder, delay, or defraud any creditor.15 For the reasons set
out below, we cannot conclude that the...
...of whether Jost made the transfers with intent to
hinder, delay, or defraud creditors. In the district court, the parties agreed that the
appropriate legal analysis would take into consideration the “badges of fraud”
enumerated in Fla. Stat. § 726.105(2)....
...ed findings including the ultimate finding of
fact as to whether Jost’s purchase of her Florida home and/or her prepayment of the
home mortgage were transfers made with intent to hinder, delay, or defraud any creditor
in violation of Fla. Stat. § 726.105....
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit | 1998 U.S. App. LEXIS 5025, 1998 WL 119799
...DISCUSSION
The following legal issue was the primary focus of the parties' briefs on appeal: whether a
claimed Florida homestead exemption can be successfully challenged if the home is purchased with
non-exempt assets with the actual intent to hinder, delay, or defraud creditors in violation of Fla.
Stat. § 726.105.11 In Bank Leumi Trust Co....
...st's testimony at the §
341 meeting and 2004 examination), and affirmed the bankruptcy court's finding. We construe
this alternative holding as a conclusion that the exclusion of evidence was harmless. As
indicated below, we disagree.
11
Section 726.105 provides that
(1) A transfer made or obligation incurred by a debtor is fraudulent as to a
creditor, whether the creditor's claim arose before or after the transfer was made
or th...
...s intent
to hinder, delay, or defraud creditors is not relevant to a claimed homestead exemption.
Key Bank counters that the transfers which resulted in Jost's ownership of the
unencumbered homestead were void ab initio under § 726.105, and thus a homestead
exemption was never recognized in law.
Wetherington, Eleventh-Hour Conversions: A Journey into the Labyrinth of Prebankruptcy
Planning, 69 Fla.B.J....
...in addressing the issue of whether Jost made the transfers with intent to hinder, delay, or defraud
creditors. In the district court, the parties agreed that the appropriate legal analysis would take into
consideration the "badges of fraud" enumerated in Fla. Stat. § 726.105(2)....
...make detailed findings including the ultimate finding of fact as to whether Jost's purchase of her
Florida home and/or her prepayment of the home mortgage were transfers made with intent to
hinder, delay, or defraud any creditor in violation of Fla. Stat. § 726.105....
CopyCited 2 times | Published | United States Bankruptcy Court, S.D. Florida.
...[120] Courts generally rely upon certain well-defined badges of fraud or indicia of fraud to presume fraudulent intent. [121] The same general analysis applies under both § 548(a)(1) and Chapter 726 of the Florida Statutes. The text of Fla. Stat. § 726.105 provides that the following eleven factors are to be considered in assessing the validity of a transfer: (a) The transfer or obligation was to an insider; [122] (b) The debtor retained possession or control of the property transferred afte...
...6] (j) The transfer occurred shortly before or shortly after a substantial debt was incurred; (k) The debtor transferred essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Several of these Fla. Stat. § 726.105 badges of fraud are present in this case and are, taken together, are sufficient for a finding of actual fraudulent intent....
...§ 548(a)(1)(B) and the Plaintiff is therefore entitled to avoid and recover *289 those transfers from Mrs. Wortley under Count I. II-G. The Plaintiffs Claim for Avoidance and Recovery of Fraudulent Transfers Against Barbara Wortley Under Fla. Stat. § 726.105 (Adversary Proceeding 08-01793-JKO: Counts II & III) Pursuant to 11 U.S.C....
...iscussed above, by virtue of the NLRB judgments, the Plaintiff has satisfied his burden to establish that there exists at least one unsecured creditor who holds an allowed claim against the Debtor pursuant to 11 U.S.C. § 502. Pursuant to Fla. Stat. § 726.105(1)(a), the Trustee may recover transfers made with the actual intent to hinder, delay and defraud creditors....
...As discussed in detail above, the applicable badges of fraud overwhelmingly indicate such intent when the Debtor made the transfers to Barbara Wortley. Transfers made for less than reasonably equivalent value that were made when the Debtor was insolvent are also avoidable under Fla. Stat. § 726.105(1)(b)....
...aim." As discussed above, by virtue of the NLRB judgments, the Plaintiff has satisfied his burden to establish that there exists at least one unsecured creditor who holds an allowed claim against the Debtor pursuant to § 502. Pursuant to Fla. Stat. § 726.105(1)(a), the Trustee may recover transfers made with the actual intent to hinder, delay and defraud creditors....
...te such intent when the Debtor made the transfers of $207,500.02 to Liberty Properties. Transfers made for less than reasonably equivalent value that were made when the Debtor was insolvent are also avoidable under Florida law pursuant to Fla. Stat. § 726.105(1)(b)....
...g, and thereby leave the NLRB with recourse against an empty shell. V. CONCLUSIONS Based on the foregoing, I conclude that the Debtor's transfers of $218,825.00 to Barbara Wortley were fraudulent transfers pursuant to 11 U.S.C. § 548 and Fla. Stat. § 726.105(1)....
...fiduciary duty to the Debtor and creditors. Based on the foregoing, I further conclude that the Debtor's transfers of $207,500.02 to Liberty Properties were preferential and fraudulent transfers pursuant to 11 U.S.C. §§ 547 and 548 and Fla. Stat. § 726.105(a)....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida
...s *411 the Subject Transfers to be constructively fraudulent under §
726.109(1), they are not subject to avoidance because Regions took them for value and in good faith. Section
726.109(1) specifically applies to fraudulent transfers voidable under §
726.105(1)(a), which are transfers made "[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor;" §
726.109(1) is not relevant to constructively fraudulent transfers....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 2001 Bankr. LEXIS 927, 2001 WL 715650
...properties. Plaintiff counters that there is a genuine possibility that he could supply evidence satisfying those elements. II. THE FLORIDA FRAUDULENT TRANSFER ACT CHAPTER 726 Florida's enactment of the Uniform Fraudulent Transfer Act is found in §
726.105 and §
726.106 of the Florida Statutes. Section
726.105 provides, in relevant part: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor...
...the debtor were unreasonably small in relation to the business or transaction; or (2) Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. FLA.STAT. § 726.105 (2001)....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 2013 WL 3943279, 2013 Bankr. LEXIS 3091
...er to enforce the estate’s causes of action. (Main Case, Doc. 530). On January 30, 2012, the Plaintiff filed a Complaint against the Defendant to Avoid and Recover Fraudulent Transfers Pursuant to 11 U.S.C. §§ 544 , 548, and 550 and Fla. Stat. §§
726.105 ,
726.106, and
726.108....
...what the Defendant paid to the Debtor (the “Profit Payments”). (Complaint, ¶ 23). The Plaintiff seeks to avoid and recover the Profit Payments from the Defendant as actually fraudulent transfers under § 548(a)(1)(A) of the Bankruptcy Code and § 726.105(l)(a) of the Florida Statutes, and as constructively fraudulent transfers under § 548(a)(1)(B) of the Bankruptcy Code and § 726.105(l)(b) of the Florida Statutes....
...ee of a fraudulent transfer “that takes for value and in good faith” may retain any interest transferred to the extent of the value given. 11 U.S.C. § 548 (c). Section
726.109(1) of the Florida Statutes provides that a fraudulent transfer under §
726.105(l)(a) is not voidable “against a person who took in good faith and for a reasonably equivalent value.” Fla....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida
...(4) Summary of the Counts of the Complaint The following summary of Plaintiff's claims for relief as set forth in the Complaint may assist in understanding the counts of the Complaint to which the Motions are addressed: *488 Avoidance of the Transfers as actual fraud under §
726.105(1)(a) 32 Count I Overdraft Loan Repayment Transfers Count IV Deposit Transfers Count VII Other Loan Repayment Transfers Avoidance of the Transfers as constructive fraud under §
726.105(1)(b) Count II Overdraft Loan Repayment Transfers Count V Deposit Transfers Count VIII Other Loan Repayment Transfers Avoidance of the Transfers as constructive fraud under §
726.106(1) Count III Overdraft Loan Repayment Transfers Count V...
...50 Here, Plaintiff alleges that in the summer of 2010, Regions returned to Synovus numerous checks drawn on the Mongelluzzi Accounts that had been deposited to accounts at Synovus, resulting in $15 million in overdrafts in the Synovus accounts. 51 C. Plaintiff's Constructive Fraudulent Transfer Claims under §
726.105(1)(b), §
726.106(1 ), and 11 U.S.C. § 548 (a)(1)(B) Regions has moved for partial summary judgment on each of Plaintiff's constructive fraudulent transfer claims. Under §
726.105(1)(b), a transfer is fraudulent as to present or future creditors if the debtor made the transfer without receiving a reasonably equivalent exchange of value and the debtor (1) was engaged, or was about to engage in a business or a transac...
...rtial summary judgment on that claim, that claim is going to go to trial. 78 Accordingly, the Court considers Region's request for partial summary judgment on the Other Loan Repayment Transfers to be unopposed. D. Plaintiff's Actual Fraud Claims and § 726.105(1)(a), and § 548(a)(1)(A) (First Motion, Counts IV, XII) Regions seeks summary judgment on Count IV and XII, Plaintiff's claims to avoid the Deposit Transfers as actual *498 fraud under § 726.105(1)(a) and 11 U.S.C. § 548 (a)(1)(A). Under § 726.105(1)(a), a transfer made by a debtor is fraudulent as to either a present or future creditor if the transfer was made with the "actual intent to hinder, delay, or defraud any creditor of the debtor." Likewise under 11 U.S.C....
...Unless otherwise stated, statutory references are to the Florida Statutes. Doc. No. 160, pp. 27-30. Doc. Nos. 428 and 476. Regions has not moved for summary judgment on Counts I and VII of the Complaint (avoidance of the Overdraft Loan Repayment Transfers and Other Loan Repayment Transfers as actual fraud under § 726.105(1)(a) ) or on Counts X and XIV of the Complaint (avoidance of Overdraft Loan Repayment Transfers and Other Loan Repayment Transfers as actual fraud under 11 U.S.C....
CopyCited 2 times | Published | United States Bankruptcy Court, S.D. Florida. | 21 Fla. L. Weekly Fed. B 726, 2008 Bankr. LEXIS 3171
...The Court, therefore, must conclude that such a transfer does not constitute a fraudulent transfer. JURISDICTION AND VENUE This is an adversary proceeding seeking to avoid and recover a fraudulent transfer pursuant to 11 U.S.C. § 548 and Fla. Stat. §§
726.105(1) &
726.106(1)....
...n 11 U.S.C. § 548(a)(1)(B). See In re Moodie,
362 B.R. 554, n. 6 (Bankr.S.D.Fla. 2007). Therefore, the section 548(a)(1)(B) analysis the Court will undertake will apply to Count TV as well. Count III of the adversary complaint relies upon Fla. Sta. §
726.105()(b)....
...f the debtor were unreasonably small in relation to the business or transaction; or 2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. Fla. Sta. § 726.105(1)....
...If no value was lost in the transfer between the Debtor and the Defendant, it is inherently the case that the Debtor did not receive less than equivalent value. Id. As a result, the section 548(a)(1)(B), Florida Statute section
726.106(1) and Florida Statute section
726.105(1)(b) claims fail as to the less than reasonably equivalent value element....
...f the Millers. Since the Millers are not looking to the Court for affirmative relief, the doctrine of "unclean hands" is inapplicable under these facts. 4. Count II of the Adversary Complaint Count II of the adversary complaint relies upon Fla. Sta. § 726.105(1)(a)....
...the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (a) With actual intent to hinder, delay, or defraud any creditor of the debtor ... Fla. Sta. § 726.105(1)....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 23 Fla. L. Weekly Fed. B 102, 2011 Bankr. LEXIS 4090, 2011 WL 5555849
...ans Continental Records, Inc.; Trans Continental Studios, Inc.; and Trans Continental Television Productions, Inc. (collectively, the "Debtors"). [5] All references to the Bankruptcy Code are to Chapter 11 of the United States Code. [6] Fla. Stat. §§
726.105,
726.106 and
726.108 ("FUFTA")....
...149, Ex. C, Carlson Depo. at 292. [28] Doc. No. 149, Exs. E, F. [29] Fla. Stat. §
726.110 states: "A cause of action with respect to a fraudulent transfer or obligation under ss.
726.101-726.112 is extinguished unless such action is brought: (1) Under s.
726.105(1)(a), within 4 years after the transfer was made or the obligation was incurred or, if later, within 1 year after the transfer or obligation was or could reasonably have been discovered by the claimant; (2) Under s.
726.105(1)(b) or s....
...(In re Supplement Spot, LLC),
409 B.R. 187, 201-02 (Bankr.S.D.Texas 2009) (not discussing § 546(a) and holding trustee had four years from date of transfer to bring avoidance action under Texas UFTA). [31] Bankruptcy Code § 548(a)(1)(B)(i) and Fla. Stat. §§
726.105(1)(b) and
726.106(1)....
...[34] Memorandum Opinion Partially Granting and Partially Denying Bank Joint Defense Group's Test Case No. 2 Motion to Dismiss, Adv. No. 09-715, Doc. No. 53. [35] Moran v. Hong Kong & Shanghai Banking Corp. (In re Deltacorp, Inc.),
179 B.R. 773, 779 (Bankr.S.D.N.Y.1995). [36] Bankruptcy Code § 548(a)(1)(A); Fla. Stat. §
726.105(1)(a)....
...r was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) the debtor transferred the essential assets of the business to a lienor who transferred the asset to an insider of the debtor. Fla. Stat. § 726.105(1)(a)....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 12 Fla. L. Weekly Fed. B 98, 1999 Bankr. LEXIS 38, 1999 WL 21446
...eeding. The Complaint sought to be dismissed was filed by Stephanie Carr, the Trustee of the Debtor's estate. The Trustee, in her four-count Complaint, seeks to avoid a transfer alleged to be fraudulent pursuant to 11 U.S.C. § 544(b) and Fla. Stat. §
726.105(1)(a) in Count I; 11 U.S.C. § 544 and Fla. Stat. §
726.105(b) in Count II; 11 U.S.C. § 544 and Fla. Stat. §
726.106(1) in Count III; and 11 U.S.C. § 544 and Fla. Stat. §
726.105(1)(a) in Count IV....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida
...or"), seeking recovery of certain alleged fraudulent transfers from DOR. The action under section 544(b) is brought by Grubbs asserting the rights of an existing creditor as of the date of the petition who could have brought an action under sections
726.105,
726.106, and
726.108 of the Florida Uniform Fraudulent Transfer Act....
...That is, if Grubbs is not liable to DOR on any of Wildcat's obligations, then Grubbs contends that it did not receive reasonably equivalent value in exchange for its payment of taxes owed by Wildcat. Accordingly, Grubbs argues, the transfer is voidable as constructively fraudulent under section 726.105, Florida Statutes....
...n 544, there must still be an actual creditor existing at the time of the filing of the chapter 11 case who could have brought this action. In this adversary proceeding, the cause of action asserted is one for recovery of a fraudulent transfer under section
726.105 and
726.106, Florida Statutes....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 20 Fla. L. Weekly Fed. B 471, 2007 Bankr. LEXIS 2300, 2007 WL 2043880
...to DIRECTV, Inc. by the Debtor is nondischargeable pursuant to Sections 523(a)(6) and 523(a)(4) of the Bankruptcy Code. The Claim in Count II is based on the contention that the Debtor committed a fraudulent transfer in violation of Florida Statutes § 726.105....
...perty, and the stated equitable lien and/or constructive trust in favor of DIRECTV is to the exclusion of any and all other creditors. In Count IV, DIRECTV also alleges that the Debtor committed a fraudulent transfer in violation of Florida Statutes § 726.105....
CopyCited 2 times | Published | District Court, M.D. Florida | 2015 U.S. Dist. LEXIS 13488, 2015 WL 470589
...§§
726.101 -.201, provides creditors 'with various forms of relief to avoid a debtor’s fraudulent transfer of assets or funds. Of importance to Count 3, a creditor may avoid a debtor’s transfer where the creditor shows that the transfer was made *1317 “[w]ith actual intent to hinder, delay, or defraud.” Fla. Stat. §
726.105 (l)(a)....
...obligation incurred. (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Id. §§ 726.105(2)(a)-(k)....
...uld have believed that she would incur debt beyond what she could pay as the debt became due, .or (3) the debtor was insolvent at the time of the transfer. Wiand v. Morgan, 919 F.Supp.2d, 1342 , 1355 & n. 14 (M.D.Fla.2013); see also Fla. Stat. §§
726.105 (l)(b),
726.106(1)....
CopyCited 2 times | Published | District Court, M.D. Florida | 2011 U.S. Dist. LEXIS 16683, 2011 WL 693576
...that date. [6] Violation of FUFTA can occur when a debtor actually intends to defraud its creditors (actual fraud) or when the debtor makes transfers without receiving reasonably equivalent value in exchange therefor (constructive fraud). Fla. Stat. § 726.105(1)(a), (b).
CopyCited 2 times | Published | United States Bankruptcy Court, S.D. Florida. | 1993 Bankr. LEXIS 1362
...§ 544(b) permits a trustee to avoid a transfer of an interest of the debtor in property or an obligation incurred by the debtor that is avoidable under applicable state law. Accordingly the Plaintiff is seeking to invoke the Uniform Fraudulent Transfer Act adopted by Florida in 1987 with pertinent § 726.105 F.S....
...for which the remaining assets of the debtor were unreasonably small in relation to the business; or 2. Intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due. In bringing herself within the purview of § 544(b) and § 726.105 F.S....
...to Sun Bank the latter had a perfected security interest in the accounts receivable of International and, therefore, the Debtor, Mechanical, received reasonably equivalent value in exchange for the transfer of funds totaling $101,022.26. There was not a fraudulent transfer within the purview of § 548, § 544(b) or § 726.105 F.S....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 2006 WL 3913758
...fraudulent as to the debtor's creditors. Whether the debtor's pre-petition transfer of his interest in the Observatory Home to his wife amounts to actual or constructive fraud is determined by Bankruptcy Code Sections 544 and 548 and Florida Statute Section 726.105....
...Next, turning to the relevant Florida state statute, the trustee argues that the transfer of the debtor's interest in the Observatory Home is avoidable pursuant to Florida's version of the Uniform Fraudulent Transfer Act, specifically, Florida Statute Sections 726.105(1)(a) and (1)(b), via the strong arm powers supplied by Bankruptcy Code Section 544. [3] Florida Statute Section 726.105 provides in relevant part as follows: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if t...
...Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. *254 Florida Statute Section
726.110 provides, relevantly, that causes of action may be brought under Sections
726.105(1)(a) and (b) within four years after the transfer was made or, if later, within one year after the transfer could reasonably have been discovered by the claimant....
...641 (Bankr.M.D.Fla.2002)). "[W]hile a single badge of fraud may create only a suspicious circumstance, several of them together may afford a basis to infer fraud." Id. The Eleventh Circuit has adopted the badges of fraud contained in Florida Statute Section
726.105(2) for consideration by courts in determining a debtor's actual intent regarding a transfer. In re McCarn's Allstate Finance, Inc.,
326 B.R. 843, 849-850 (Bankr.M.D.Fla.2005) ( citing In re Levine,
134 F.3d 1046, 1053 (11th Cir.1998)). The badges of fraud supplied by Florida Statute Section
726.105(2) are listed as follows: (a) The transfer or obligation was to an insider....
...The debtor conceded he was insolvent and also was not paying his bills at the time of the transfer. Accordingly, the evidence is sufficient to show that the transfer was fraudulent under Florida law and subject to avoidance by the trustee under Florida Statute 726.105(a)....
...The debtor would have been entitled to receive one-half of this amount, $37,500. Because the trustee has demonstrated that the debtor's transfer of his interest in the Observatory Home to the defendant on June 9, 2003, was actually and constructively fraudulent under Florida Statute Section 726.105, he is entitled to recover the value of the debtor's interest in the home, $37,500, from the defendant....
...The defendant does not contest the trustee's standing under Section 544 of the Bankruptcy Code to assert the state law fraudulent transfer claim. [4] The transfer is also subject to avoidance because it was constructively fraudulent under Florida Statute 726.105(6)....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 2001 Bankr. LEXIS 1667, 2001 WL 1663994
...he debtor were unreasonably small in relation to the business or transaction; or 2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debtors beyond his or her ability to pay a they became due. Fl.Stat.Ch. 726.105(1)....
...was incurred. (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Fl.Stat.Ch. 726.105(2)....
...Her furniture consists of a dining room table and chairs, a chest of drawers, a bedroom suite, television and recliner (P14, T21). This Court finds that all of the essential elements of a fraudulent transfer have been proven and the transfer of the interests in favor of Defendant Balch shall be avoided pursuant to § 726.105, Florida Statutes....
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit | 1999 U.S. App. LEXIS 32216
...ome a part of the bankruptcy
estate, available to satisfy Hill's individual creditors, and, consequently, Hill's wife's property interest in
the home furnishings will be effectively terminated.
7
Compare 11 U.S.C. § 548 with Fla. Stat. chs.
726.105,
222.29, and
222.30.
The exemption of a debtor's homestead from process in Florida is constitutionally protected....
...to provide a clearer,
more direct response to fraudulent transfers" of the sort at issue here. Levine,
134 F.3d at 1053. Therefore,
transfers which would be avoidable as fraudulent under §§
222.29 and
222.30 were also previously avoidable
under §
726.105....
...Id.
In sum, the issue of whether a claimed Florida homestead exemption can be successfully challenged
if the home was purchased with non-exempt assets with the actual intent to hinder, delay, or defraud creditors
in violation of Fla. Stat. § 726.105 is an unsettled question of Florida law.14 Because the answer to this
question is dispositive of the claims in this case and because it raises important issues of state law, we certify
the following question to the Supreme Court of Florida pursuant to Fla....
...9.150:
DOES ARTICLE X, SECTION 4 OF THE FLORIDA CONSTITUTION EXEMPT A FLORIDA
HOMESTEAD, WHERE THE DEBTOR ACQUIRED THE HOMESTEAD USING NON-EXEMPT
FUNDS WITH THE SPECIFIC INTENT OF HINDERING, DELAYING, OR DEFRAUDING
CREDITORS IN VIOLATION OF FLA. STAT. § 726.105 OR FLA....
CopyCited 2 times | Published | District Court, S.D. Florida | 2011 WL 1599631, 2011 U.S. Dist. LEXIS 44177
...Count IX Uniform Fraudulent Transfers Act (Against All Defendants) ZKE asserts claims under four provisions of the Uniform Fraudulent Transfers Act ("FUFTA"). In its first allegation under FUFTA, ZKE claims that Defendants are liable under Fla. Stat. § 726.105(1)(a) for making transfers of ZKE property and of proceeds from the sale of ZKE's property "with actual intent to hinder, delay, and defraud ZKE." Compl. ¶ 181. To establish a cause of action under Fla. Stat. § 726.105, a plaintiff must show: "(1) there was a creditor to be defrauded, (2) a debtor intending fraud, and (3) a conveyance of property which could have been applicable to the payment of the debt due." Nationsbank, N.A....
...pursuant to the Settlement Agreement is inapposite. ZKE's claim is that the transactions were fraudulent, and thus the parties' contract could not authorize them. ZKE has shown that genuine material facts exist as to its FUFTA claim under Fla. Stat. § 726.105(1)(a). ZKE alleges that Defendants are liable under Fla. Stat. 726.105(1)(b) because Defendants made certain transfers of ZKE property and proceeds from the sale of ZKE's property "without a reasonably equivalent value in exchange for the transfer or the obligation." Compl....
...a time when ZKE already had claims against defendants." Compl. ¶ 184. Both of these claims require that plaintiff show that defendants made transfers "without a reasonably equivalent value in exchange for the transfer or obligation." Fla. Stats. §§
726.105(1)(b),
726.106(1)....
...Count VII (Conversion Claim Against all Defendants) is dismissed as to Airspares, but remains as to the other defendants. Summary judgment is DENIED in part and GRANTED in part. 8. Count IX (FUFTA Claims Against all Defendants): a. The claim under Fla. Stat. § 726.105(1)(a) remains as to all defendants. Summary judgment is DENIED. b. The claim under Fla. Stat. § 726.105(1)(b) remains as to all defendants....
CopyCited 1 times | Published | District Court, M.D. Florida | 2012 WL 4369602, 2012 U.S. Dist. LEXIS 136962
...need not specifically identify a creditor, debtor, or claim. (Doc. # 16, pp. 6-7.) Under FUFTA, a transfer is voidable if fraudulent. Fla. Stat. §
726.108 . The Complaint specifically states that the FUFTA claims are brought pursuant to Fla. Stat. §
726.105 (1)(a) and (b). Fla. Stat. §
726.105 (1)(a) concerns actual fraud while Fla Stat. §
726.105(1)(b) concerns constructive fraud. Constructive fraud is also addressed in Fla. Stat. §
726.106 . Fla. Stat. §
726.105 provides: (1) A transfer is made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer...
...claim. In support, he cites to an non-binding opinion, Wiand v. Buhl, No. 8:10-CV-75-T-17MAP,
2011 WL 6048829 (M.D.Fla. Nov. 3, 2011) (Pizzo, Mag.) (adopted,
2011 WL 6048741 (M.D.Fla. Dec. 6, 2011) (Kovachevich, J.)). The first section of Fla. Stat. §
726.105 states that “[a] transfer is made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation.” Fla. Stat. §
726.105 (emphasis added)....
CopyCited 1 times | Published | United States Bankruptcy Court, S.D. Florida.
...The Trustee does not allege that TMS is the recipient of any fraudulent transfers from FinFed. Instead, he alleges that TMS was a mere conduit for the transfer to Sclafani. The Trustee's Complaint seeks to avoid and recover the transfers from CSI to Sclafani and ABRI under 11 U.S.C. § 548 and § 550(a)(1) and Fla.Stat. § 726.105, asserting that ABRI and Sclafani were the initial transferees and CSI was a mere conduit for the funds transferred....
CopyCited 1 times | Published | United States Bankruptcy Court, S.D. Florida. | 26 Fla. L. Weekly Fed. B 101, 76 Collier Bankr. Cas. 2d 1161, 2016 Bankr. LEXIS 3955
...e, on or. after the date that such transfer was made or *873 such obligation was incurred, indebted; or (B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; 11 U.S.C. § 548 (a)(1); see also Fla. Stat. § 726.105 (1)....
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida
...incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition.” 18 Section 544(b)(1) similarly allows a trustee to avoid any transfers which an unsecured creditor could have avoided under applicable state law, in this case, Fla. Stat. §
726.105 (l)(a) and §
726.108. 19 Bankruptcy Code § 548 and Fla. Stat. §§
726.105 and
726.108 are substantially the same, with the exception of Florida’s more favorable four-year look-back period, and both allow a trustee to avoid transfers made with the actual intent to hinder, delay, or defraud a creditor of the debtor....
...tions to dismiss on this basis are denied. Counts III and IV of the trustee’s complaint allege the profits defendants received from their investments in the TCTS Stock Program were constructively fraudulent transfers under § 548 of the Code and §§
726.105(l)(b),
726.106(1), and
726.108(l)(a) of Florida Statutes....
...07-bk-02432, Trans Continental Publishing, Inc., Case No. 07-bk-04160, Louis J. Pearlman Enterprises, LLC, Case No. 07-bk-01779, and TC Leasing, LLC, Case No. 07-bk-04160. . All references to the Bankruptcy Code are to 11 U.S.C. § 101 etseq. . Fla. Stat. §§
726.105 ,
726.106 and
726.108 ("FUFTA”)....
...r was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) the debtor transferred the essential assets of the business to a lienor who transferred the asset to an insider of the debtor. Fla. Stat. § 726.105 (2)....
CopyCited 1 times | Published | District Court, S.D. Florida | 2014 WL 1745361
...the debtor were unreasonably small in relation to the business or transaction; or 2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. Fla. Stat. § 726.105 ....
...But any cause of action with respect to a fraudulent transfer or obligation is “extinguished unless action is brought ... within 4 years after the transfer was made or the obligation was incurred.” Fla. Stat. §
726.110 . Notwithstanding the four-year limitation period, a cause of action under §
726.105(l)(a) may still be brought “within 1 year after the transfer or obligation was or could reasonably have been discovered by the claimant.” Fla....
...law by a creditor holding an unsecured claim.” As with Sylvia Berman’s own claim for fraudulent transfer against APW, any claim by the IRS for fraudulent transfer with respect to the transfer of the $245,000.00 loan to APW could be brought under § 726.105, Fla. Stat., since transfers under that section are fraudulent “as to [both] present and future creditors.” 2 Fla. Stat. § 726.105 ....
...at the IRS could only have a fraudulent-transfer claim if it became a creditor “before the transfer was made and the obligation was incurred,” that case discussed §
726.106, Fla. Stat., which applies to “present creditors” only. Id. at 712. Section
726.105, meanwhile, explicitly applies to both present and future creditors, so the IRS is not barred from asserting a fraudulent-transfer claim under § 762.105 merely because it became a creditor after the transfer at issue. Though causes of action for transfers under §
726.105(l)(b) are extinguished four years after the occurrence of the transfer, causes of action under §
726.105(l)(a) brought four years after the transfer may still be valid if brought within a year that the “transfer could reasonably have been discovered by the claimant.” 3 Fla....
...Capital Corp.,
727 F.3d 1127, 1135-36 (11th Cir.2013). . The IRS’s first claim against Goldschmidt arose on November 17, 2008. See Claims 3-1; 3-2. . The count for fraudulent transfer in Sylvia Berman's original supplementary proceeding alleges claims under both §§
726.105(l)(a) and (b), though without expressly citing the provisions under which the claims are brought....
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida | 21 Fla. L. Weekly Fed. B 155, 2007 Bankr. LEXIS 4408, 2007 WL 4699023
...a limited liability company known as DAS 2, LLC, within one year before the filing of the Debtor's bankruptcy petition. The issue in this case is whether the transfer was a fraudulent transfer within the meaning of § 548 of the Bankruptcy Code and § 726.105 of the Florida Statutes, or a preferential transfer within the meaning of § 547 of the Bankruptcy Code....
...On May 27, 2003, the Trustee in the Debtor's Chapter 7 case filed a Complaint against Clark, Deane, and DAS 2, LLC *612 (collectively, the Defendants). In the Complaint, the Trustee seeks to avoid the transfer of the Debtor's assets to the Defendants as a fraudulent transfer pursuant to § 548 of the. Bankruptcy Code and § 726.105 of the Florida Statutes, or a preferential transfer pursuant to § 547 of the Bankruptcy Code....
...hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted. 11 U.S.C. § 548(a)(1)(A)(Emphasis supplied). Count III of the Complaint is based on § 726.105(1)(a) of the Florida Statutes. That section provides: 726.105....
...r the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (a) With actual intent to hinder, delay, or defraud any creditor of the debtor. Fla. Stat.
726.105(1)(a)(Emphasis supplied). Section 548 of the Bankruptcy Code and §
726.105 of the Florida Statutes are substantially the same, with the result that "the analysis of what must be shown to prove actual fraud under both the bankruptcy and state law fraudulent transfer provisions is the same." In re McCarn's Allstate Finance, Inc.,
326 B.R. 843, 849 (Bankr.M.D.Fla.2005). To establish a cause of action under § 548(a)(1)(A) and §
726.105(1)(a), the Plaintiff must show (1) that the Debtor transferred property within one year (under § 548) or four years (under §
726.105) of filing the bankruptcy petition, and (2) that the transfer was made with the actual intent to hinder, delay, or defraud any entity to which the debtor was indebted....
...The Debtor's bankruptcy petition was filed on September 18, 2001. Consequently, the transfer occurred within the time periods set forth in the respective statutes. The, primary issue in this case, therefore, involves the second element of the cause of action under § 548(a)(1)(A) and § 726.105(1)(a): whether the transfer was made with the actual intent to hinder, delay, or defraud a creditor of the Debtor....
..."The Eleventh Circuit has adopted the badges of fraud contained in the Florida fraudulent transfer statute." In re McCarn's Allstate Finance,
326 B.R. at 850(citing In re Levine,
134 F.3d 1046, 1053, (11th Cir.1998)). The "badges of fraud" as set forth in §
726.105 are as follows:
726.105....
...n was incurred. (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Fla. Stat. 726.105(2)....
...641 (Bankr.M.D.Fla.2002)). In this case, the Court finds that the transfer of the Debtor's assets to DAS 2 on April 2, 2001, was made with the actual intent to hinder, delay, or defraud the Debtor's creditors within the meaning of § 548(a)(1)(A) of the Bankruptcy Code and § 726.105(1)(a) of the Florida Statutes....
...ent. Under these circumstances, the Court finds that the transfer was effectuated for the specific purpose of preventing certain of the Debtor's creditors from collecting their debts, and is avoidable under § 548(a)(1)(A) of the Bankruptcy Code and § 726.105(1)(a) of the Florida Statutes....
...ly small capital; or (III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay, as such debts matured. 11 U.S.C. § 548(a)(1)(B)(Emphasis supplied). Count IV of the Complaint is based on § 726.105(1)(b) of the Florida Statutes. That section provides: 726.105....
...the debtor were unreasonably small in relation to the business or transaction; or 2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. Fla. Stat. 726.105(1)(b)(Emphasis supplied). "Under § 548(a)(1)(B) and Fla. Stat. § 726.105(1)(b), the plaintiff must prove that the debtors did not receive `reasonably equivalent value' in exchange for the transferred property." In re Seaway International Transport, Inc., 341 B.R....
...ived reasonably equivalent value in exchange for its assets. Consequently, the Court concludes that the Plaintiff has not satisfied its burden of proving that the transfer was constructively fraudulent under § 548(a)(1)(B) of the Bankruptcy Code or § 726.105(1)(b) of the Florida Statutes....
...ted a voidable preference within the meaning of § 547(b) of the Bankruptcy Code. Conclusion In this case, the Trustee seeks to avoid the transfer of the Debtor's assets to DAS 2 as a fraudulent transfer pursuant to § 548 of the Bankruptcy Code and § 726.105 of the Florida Statutes, or a preferential transfer pursuant to § 547 of the Bankruptcy Code....
...reement. Consequently, the Court finds that the transfer was made with the actual intent to *623 hinder, delay, or defraud the Debtor's creditors, and that the transfer to DAS 2 is therefore avoidable under § 548(a)(1)(A) of the Bankruptcy Code and § 726.105(1)(a) of the Florida Statutes....
...Based on the evidence, however, the Court cannot determine whether the Debtor received reasonably equivalent value in exchange for the transfer of its assets. The Court concludes, therefore, that the Plaintiff did not satisfy his burden of proving constructive fraud under § 548(a)(1)(B) of the Bankruptcy Code or § 726.105(1)(b) of the Florida Statutes....
...their earned compensation. Accordingly: IT IS ORDERED that: 1. The transfer of the assets of the Debtor, Dealers Agency Services, Inc., to DAS 2, LLC, should be avoided as a fraudulent transfer pursuant to § 548(a)(1)(A) of the Bankruptcy Code and § 726.105(1)(a) of the Florida Statutes, and a Final Judgment avoiding the transfer should be entered in favor of the Plaintiff, Douglas N....
...ants, Terry S. Clark and Ellen Deane, and against the Plaintiff, Douglas N. Menchise, Trustee. 3. The transfer of the Debtor's assets should not be avoided as a constructively fraudulent transfer pursuant to § 548(a)(1)(B) of the Bankruptcy Code or § 726.105(1)(b) of the Florida Statutes, and a Final Judgment should be entered in favor of the Defendants and against the Plaintiff as to Count II and Count IV of the Trustee's Complaint....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2008 Fla. App. LEXIS 3883, 2008 WL 723841
...perty. In its findings of fact, the circuit court determined that Poinciana transferred the property with the "actual intent to hinder, delay, or defraud" North Ring and, therefore, satisfied the requirements for transferor liability as set forth in section 726.105, Florida Statutes....
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida
...But the Plaintiffs acknowledge the laws of those states contain substantially similar elements. So the Court will, as Ventas suggests, analyze the claims under Florida law. . Dev. Specialists, Inc. v. Hamilton Bank (In re Model Imperial, Inc.),
250 B.R. 776, 791 (Bankr.S.D.Fla.2000); see also §
726.105(2)(a)-(k), Fla....
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida | 42 Collier Bankr. Cas. 2d 935, 12 Fla. L. Weekly Fed. B 286, 1999 Bankr. LEXIS 923, 1999 WL 565447
...audulent transfer pursuant to § 548(a)(2) and § 550 of the Bankruptcy Code. In Count III, the Debtor seeks to avoid and recover the transfer as a constructively fraudulent transfer pursuant to § 544(b) of the Bankruptcy Code and Florida Statute §§
726.105(1)(b) and
726.106(1)....
...easonably small capital; or *480 (iii) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay as such debts matured. Count III of the Complaint is based on § 544 of the Bankruptcy Code and §
726.105 and §
726.106 of the Florida Statutes, and also seeks to avoid and recover the transfer of the rents as a constructively fraudulent transfer....
...is voidable under applicable laws, including state laws to avoid fraudulent transfers, by a creditor holding an allowable unsecured claim. Florida's laws regarding the avoidance of constructively fraudulent transfers are set forth in Florida Statute §
726.105(1)(b) and Florida Statute §
726.106(1). Florida Statute §
726.105(1)(b) provides:
726.105 Transfers fraudulent as to present and future creditors....
...as a result of the transfer or obligation. These Florida statutes do not restrict the analysis of the transfers at issue to a period of only one year prior to the filing of a bankruptcy petition. In other material respects, however, Florida Statute §
726.105(1)(b) and Florida Statute §
726.106(1) are analogous "in form and substance" to § 548(a)(2) of the Bankruptcy Code....
CopyCited 1 times | Published | District Court, M.D. Florida | 2014 U.S. Dist. LEXIS 86432, 2014 WL 2882938
...ery either partially or in their entirety. (Id.). The Trustee thus asserts the following twelve counts, each entitled “Avoidance and Recovery of Fraudulent Transfers,” against Synovus: (1) Actual Fraud, 11 U.S.C. § 544 (b) and Florida Statute §§
726.105(l)(a) — Overdraft Loan Repayment Transfers; (2) Constructive Fraud, 11 U.S.C. § 544 (b) and Florida Statute §§
726.105(l)(b) and
726.108 — Overdraft Loan Repayment Transfers; (3) Constructive Fraud, 11 U.S.C. § 544 (b) and Florida Statute §§
726.106(1) and
726.108 — Overdraft Loan Repayment Transfers; (4) Actual Fraud, 11 U.S.C. § 544 (b) and Florida Statute §§
726.105(l)(a) and
726.108 — Deposit Transfers; (5) Constructive Fraud, 11 U.S.C....
...§ 544 (b) and Florida Statute §§
726.106(1) and
726.108 — Deposit Transfers; (6) Constructive Fraud, 11 U.S.C. § 544 (b), Florida Statute §§
726.106(1) and
726.108 — Deposit Transfers; (7) Actual Fraud, 11 U.S.C. § 544 and Florida Statute §§
726.105(l)(a) and
726.108 — Other Loan Repayment Transfers; (8) Constructive Fraud, 11 U.S.C. § 544 and Florida Statute §§
726.105(l)(b) and
726.108— Other Loan Repayment Transfers; (9) Constructive Fraud, 11 U.S.C. § 544 (b) *276 and Florida Statute §§
726.106(1) and
726.108 — Other Loan Repayment Transfers; (10) Actual Fraud, 11 U.S.C. § 544 and Florida Statute §§
726.105(l)(a) and
726.108 — Able Body Labor Asset Sale Transfers; (11) Constructive Fraud, 11 U.S.C. § 544 and Florida Statute §§
726.105(l)(b) and
726.108 — Able Body Labor Asset Sale Transfers; and (12) Constructive Fraud, 11 U.S.C....
...VII seek “to recover assets that [the Trustee] alleges [Frank] Mongelluzzi transferred to Synovus with the actual in *278 tent to hinder or delay his creditors.” (Doc. # 18 at 6). The Trustee brings these Counts pursuant to 11 U.S.C. § 544 and Section 726.105(l)(a), Florida Statutes. (See Doc. # 17 at 8-4). Section 726.105(1), Florida Statutes, provides as follows: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurre...
...The Court finds that the Amended Complaint is sufficiently detailed to survive the present Motion to Dismiss. As explained above, the claims in Counts I, IV, and VII are premised upon the “actual intent to hinder, delay, or defraud any creditor of the debtor.” Fla. Stat. § 726.105 (l)(a)....
...ssal at this stage of the proceedings, the Court denies Syno-vus’s Motion as to these Counts. 2. Counts II, III, V, VI, VIII and IX In Counts II, III, V, VI, VIII, and IX, the Trustee asserts claims for constructive *283 fraud pursuant to Sections
726.105(l)(b) and
726.106(1), 6 Florida Statutes....
...# 17 at 3-4). Synovus’s argument for dismissal of these Counts is brief. According to Synovus, [t]he first element necessary for both types of constructive fraud claims is a failure to exchange reasonably equivalent value for a transfer. Fla. Stat. §§
726.105 (l)(b)[,]
726.106(1)....
...parties’ evidentiary support for their respective positions. 3. Counts X, XI and XII Finally, Synovus addresses the Trustee’s fraudulent transfer claims in Counts X, XI and XII. The Trustee brings Count X for actual fraud pursuant to Fla. Stat. § 726.105 (l)(a), Count XI for constructive fraud pursuant to Fla. Stat. § 726.105 (l)(b), and Count XII for constructive fraud pursuant to Fla....
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida | 8 Fla. L. Weekly Fed. B 219, 1994 Bankr. LEXIS 1475, 1994 WL 519020
...Allen (Trustee), who seeks to set aside a certain transaction by Mildred E. Crawford (Defendant). The Trustee's claim for relief is set forth in his three Count Complaint. In Count I the Trustee seeks to avoid the transaction as a fraudulent transfer based on Fla.Stat. § 726.105; the Claim in Count II is based on Fla.Stat....
...ansfer of the Defendant's interest in the corpus of the trust, this leaves for consideration whether or not the Trustee established with the requisite degree of proof all the requisite elements of a viable fraudulent transfer claim under Fla.Stat. §§
726.105 and
726.106(1). Fla.Stat. §
726.105 provides: "(a) transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation incurred, if the debtor made the transfer or incurred the obligation: (a) with actual intent to hinder, delay or defraud any creditor of the debtor." Subsection 2 of Florida Statute
726.105 provides: "[i]n determining actual intent under paragraph (1)(a), consideration may be given, among other factors to whether: (a) The transfer or obligation was to an insider....
...was insolvent. Based on the foregoing, this Court is satisfied that this record supports the Trustee's claim and supports the findings that the Trustee did establish all operating elements of a voidable fraudulent transfer both pursuant to Fla.Stat. § 726.105 and Fla.Stat....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2014 WL 51686, 2014 Fla. App. LEXIS 144
...the same website, and with the same customers. Rocco worked as the chief executive officer of Effective and continued in the same capacity at Etech Texas. Alleging legal theories turning on the claim of a fraudulent transfer of assets under sections
726.105(l)(a),
726.105(l)(b)2, and
726.106(1), Florida Statutes (2010), the im-pleader complaint sought various remedies including the voiding of the transfer of assets to Etech Texas or the sale of Etech Texas’s assets....
...should legitimately be made available to satisfy creditor demands.” Id. A fraudulent transfer of property is voidable at the instance of a creditor. See §
726.109(1), Fla. Stat. (2010) (using the word “voidable” to describe the application of §
726.105(l)(a))....
...on to “avoid any conveyance or transfer void or voidable by law.” §§
727.110(l)(c),
727.109(8)(c), Fla. Stat. (2010). The assignee is authorized to bring a Chapter 726 action because the assignee is a Chapter 726 “creditor.” *1052 Sections
726.105 and
726.106, Florida Statutes (2010), define the circumstances where a transfer by a debtor is fraudulent as to a creditor....
...by a bankrupt corporation from the corporation’s president. The case does not involve the interplay between Chapters 726 and 727. Reversed and remanded for further proceedings consistent with this opinion. WARNER and KLINGENSMITH, JJ„ concur. . Section 726.105 provides, in pertinent part: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debt...
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...Gorrin’s ownership interest in Lacross. On May 5, 2015, Poker Run moved for
summary judgment contending there were no genuine issues of material fact and
that an unrebutted presumption was created that the transfer was fraudulent by
operation of sections
56.29(6)(a)3 and
726.105(1)(a), (2), Florida Statutes (2015).
In support, Poker Run submitted an affidavit by its President, R....
...ndant has the burden of
proof to establish that such transfer or gift from him or
her was not made to delay, hinder, or defraud creditors.
§
56.29(6)(a). Poker Run’s second theory is based on a presumption of fraud
under section
726.105(1)(a) of the Fraudulent Transfer Act which provides:
A transfer made or obligation incurred by a debtor is
fraudulent as to a creditor, whether the creditor’s claim
arose before or after the tran...
...§ 716.105(1)(a) (emphasis added).
“Proof of fraud requires proof of intent. Obviously, in these situations, the
parties will not readily admit to being instruments of fraud. Therefore, ‘because of
the difficulty of proving actual intent to defraud creditors, section
726.105(2)
provides that fraudulent intent may be presumed from evidence of badges of
8
fraud.’” Mejia v. Ruiz,
985 So. 2d 1109, 1113 (quoting Beal Bank SSB v. Almand
& Assocs.,
780 So. 2d 45, 60 (Fla. 2001)). The language of section
726.105(2)
provides as follows:
In determining actual intent under paragraph (1)(a),
consideration may be given, among other factors, to
whether:
(a) The transfer or obligation was to...
...threatened with
suit.
...
(g) The debtor removed or concealed assets.
...
(j) The transfer occurred shortly before or shortly after
a substantial debt was incurred.
§ 726.105(2).
In its motion for summary judgment, Poker Run asserted that Gorrin’s
actions met all the above factors as: a) Gorrin transferred the assets for his family’s
benefit; b) Gorrin retained his manager status after the transfer...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1998 Fla. App. LEXIS 614, 1998 WL 27598
...allegations and evidence in this case showed nothing more than the fact of sole ownership. There were no allegations or evidence in this case of any of the numerous “badges of fraud,” which might have established fraud. Munim,
648 So.2d at 152 ; §
726.105(2)....
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida | 20 Fla. L. Weekly Fed. B 249, 2007 Bankr. LEXIS 196, 2007 WL 174162
...roduct of fraudulent transfers. Property that would otherwise be excluded from the bankruptcy estate is not exempt if the property was acquired via a fraudulent transfer or conveyance. See FM. STAT. ANN. §
222.29 (West 2005) [2] and FLA. STAT. ANN. §
726.105(1)(a) (West 2005) [3] . Section
726.105(2) sets forth eleven factors which a court may consider in determining actual intent to hinder, delay or defraud any creditor of the debtor. See FLA. STAT. ANN. §
726.105(2) (West 2005)....
...[2] Florida Statutes, §
222.29, states: An exemption from attachment, garnishment, or legal process provided by this chapter is not effective if it results from a fraudulent transfer or conveyance as provided in chapter 726. [3] Florida Statutes, §
726.105(1)(a) states: A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or in...
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida | 18 Fla. L. Weekly Fed. B 95, 2005 Bankr. LEXIS 45, 2005 WL 407757
...On their schedules, the debtors claimed as exempt [1] a home they acquired pre-petition using a non-exempt, $300,000 tax refund as a down payment. The issue presented is whether the trustee's avoidance powers under Bankruptcy Code [2] Sections 544 and 550 and Florida Statute Sections
726.105 and
726.106 permit the trustee to recover the debtors' $300,000 transfer, made shortly before this case was filed, or whether the funds are now shielded by the debtors' homestead exemption....
...ther Florida's homestead exemption applied to a homestead where the homestead was acquired by a debtor using non-exempt funds with the specific intent of hindering, delaying, or defrauding his creditors within the meaning of Florida Statute Sections
726.105,
222.29 and
222.30....
...The trustee asserts that her strong arm powers permit her to recover the fraudulent transfer, and the debtors' homestead exemption permits them to retain any remaining equity. In Levine, the Chapter 7 trustee filed a complaint under Florida Statute Section
726.105 to set aside as fraudulent the debtors' pre-petition transfer of approximately $440,000 of non-exempt property into exempt annuity accounts. The Court of Appeals for the Eleventh Circuit ruled, inter alia, that Florida Statute Section
726.105 could properly be invoked to challenge *758 whether a transfer of non-exempt assets to exempt assets was fraudulent. [3] Levine,
134 F.3d at 1052. The court noted "the reluctance of Florida courts to interfere with exempt assets," yet acknowledged that it "must be guided by those courts that have relied on the unambiguous language of §
726.105 to set aside transfers from non-exempt to exempt status when such transfers were effected in order to defraud creditors." Levine,
134 F.3d at 1052....
...Here, the trustee argues that applying Levine to the stipulated facts should result in a grant of summary judgment in her favor on the issue of whether she may pursue a fraudulent conveyance action against the debtors pursuant to Bankruptcy Code Section 544 and Florida Statute Sections
726.105 and
726.106 to recover the $300,000 transfer for the benefit of the estate....
...explicitly and recently held that the Florida legislature is powerless to affect the rights provided under the homestead exemption through statutory enactments. Havoco,
790 So.2d at 1029 ("The federal courts which have addressed the applicability of section
726.105 to homestead claims have concluded that it has no effect on the constitutionally created homestead exemption.") (citations omitted). Therefore, although a creditor can avoid a transfer to statutorily-created exempt property under Florida Statute Section
726.105, a creditor cannot avoid a transfer into constitutionally-created exempt property, such as homestead....
...Rather, the trustee is empowered by Bankruptcy Code Section 544(a)(2) to avoid transfers that would be voidable under state law by a creditor holding an executed but unsatisfied judgment. Here, the applicable state laws are Florida Statute Sections
726.105 and *760
726.106. Under Florida Statute
726.105, a creditor of these debtors, even one holding a judgment, could not avoid the transfer of the debtors' tax refund into their home as a fraudulent transfer....
...of the United States Code. [3] Specifically, the court found that "there exists an arguable distinction between the act of transferring funds from non-exempt to exempt status and the exempt nature of the transferred funds," and that Florida Statute
726.105 could properly be invoked where "there is an allegation that the transfer itself was fraudulent and should therefore be set aside (as opposed to an allegation that the transfer was fraudulent and the assets therefore should be declared non-exempt)." Levine,
134 F.3d at 1052....
CopyCited 1 times | Published | District Court, M.D. Florida | 75 A.F.T.R.2d (RIA) 1660, 1995 U.S. Dist. LEXIS 3234
...uary 31, 1992 quitclaim deed do not fall within the relief provisions of Fla.Stat.Ann. §
726.109. 1. Washington Street Property (“Parcel 1”) Under Florida’s fraudulent conveyance statute, a creditor may not void a transfer under Fla.Stat.Ann. §
726.105(l)(a) against any person “who took in good faith and for a reasonably equivalent value ...” Fla.Stat.Ann....
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida | 11 Fla. L. Weekly Fed. B 85, 1997 Bankr. LEXIS 1476, 31 Bankr. Ct. Dec. (CRR) 526
...This identical issue was the crux of the Motion to Dismiss filed by all Defendants. (Doc. 34). In the Order Denying the Motion to Dismiss, this Court stated that Counts II-XV of the Complaint are brought under the Florida Uniform Fraudulent Transfer Act § 726.105(1)(a) and (b), made applicable by 11 U.S.C....
CopyCited 1 times | Published | District Court, M.D. Florida | 2005 U.S. Dist. LEXIS 24509, 2005 WL 2012273
...m four, receipt of fraudulently transferred assets from AXXSYS, in the amount of $190,000.00. ORDERED. NOTES [1] Austin moves for judgment as a matter of law also on claim four, which seeks judgment under the Florida Uniform Fraudulent Transfer Act, Section 726.105, Florida Statutes....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2002 WL 561378
...st mortgage and the foreclosure were legitimate, and that the evidence was "not sufficient to establish the intent required by the Fraudulent Transfer Act." The trial court was apparently only considering whether this was a fraudulent transfer under section
726.105(1)(a) which includes the element of "intent to hinder, *136 delay, or defraud any creditor of the debtor." Section
726.106(1), on which Ethan Allen was also proceeding, however, does not require intent....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Mar 9, 2022
to pay as they became due. Fla. Stat. §
726.105. As indicated infra, the parties and the Bankruptcy
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 20 Fla. L. Weekly Fed. B 73, 2006 Bankr. LEXIS 3262
...es that if the Court determines that the Letter Agree *553 ment is enforceable, the transfer of the right to receive the commission from the sale of the Jupiter Property is fraudulent and should be avoided pursuant to 11 U.S.C. § 544 and Fla. Stat. §
726.105 (l)(b) and
726.106(1)....
...“Consequently, the Trustee may utilize the state fraudulent conveyance statutes, which have a four-year statute of limitations.” Id. In this matter, the Trustee seeks to avoid the transfer under Florida’s constructive fraud statutes, sections
726.105(l)(b) and
726.106(1) Fla Stat. §
726.105(l)(b) titled “Transfers fraudulent as to present and future creditors” states in pertinent part: A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after th...
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 9084, 1991 WL 181531
...CLYDE MASH and ROYAL’S assets and funds outside the reach- of Plaintiff with the intent to hinder, delay or defraud collection by Plaintiff of its then existing, lawful and unsatisfied default Judgment against E. CLYDE MASH, in violation of Florida Statutes, Chapter 726 including, but not limited to, §
726.105 and §
726.106....
CopyPublished | United States Bankruptcy Court, M.D. Florida
...Anderson CGM IRA Rollover Custodian (the “State Court Complaint”). In the State Court Complaint, the Bank sought to avoid and recover alleged fraudulent transfers and fraudulent conversions under the proceedings supplementary provisions of Fla. Stat. §
56.29 , and Fla. Stat. §§
726.105 ,
726.106,
726.108,
222.30, and Chapter 85, Florida Statutes....
...Relief under §
56.29(6) differs from the fraudulent transfer provisions of Chapter 726 because (i) the look back period under §
56.29(6) is one year before the defendant was served with process in the underlying lawsuit rather than the four-year look back period afforded by §
726.110; and (ii) unlike §
726.105, where the burden is on the creditor to establish that the transfer was made to hinder, delay, or defraud, the burden of proof under §
56.29(6) is on the defendant to establish that the transfer was not made to delay, hinder, or defraud....
....In re Short,
188 B.R. 857, 860 (Bankr. M.D. Fla. 1995). . See Fla. Stat. §
726.102 (2)(c). . Dzikowski v. Delson (In re Delson),
247 B.R. 873, 876 (Bankr. S.D. Fla. 2000). . Wiand v. Wells Fargo Bank, N.A.,
86 F.Supp.3d 1316, 1325 (M.D. Fla. 2015) (quoting §
726.105(l)(a), Florida Statutes)....
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 15909, 2015 WL 6446074
...1st DCA 2014) (noting that the manner of proving and defending fraudulent transfer claims under §
56.29 borrow from the UFTA). For this reason too, the order fell short of adequately resolving RREF’s fraudulent transfer claim in the supplementary proceeding below. See, e.g., Mejia,
985 So.2d at 1112-13 (applying §
726.105 in evaluating a fraudulent transfer claim); Mansolillo v....
CopyPublished | Florida 2nd District Court of Appeal | 2001 Fla. App. LEXIS 14894, 2001 WL 1245355
...s an officer, a director, and a shareholder of the stock of PSI. It was further alleged that substantially all of the assets of PSI were transferred to APSI, for the fraudulent purpose of avoiding Lability on the part of Mark Brooke, in violation of section 726.105, Florida Statutes (1997)....
CopyPublished | District Court, M.D. Florida | 74 A.F.T.R.2d (RIA) 6755, 1994 U.S. Dist. LEXIS 15229, 1994 WL 739374
...1047 ,
2 L.Ed.2d 1126 (1958). Under Florida’s fraudulent conveyance statute, a transfer is fraudulent as to present creditors if the debtor made the transfer “[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor ...” Fla.Stat.Ann. §
726.105(l)(a) (West 1988)....
...es can also be gleaned from other evidence in the record. The Uniform Fraudulent Transfer Act provides that a court, in determining whether a debtor has actually intended to defraud a creditor, may consider a number of listed factors. Fla. Stat.Ann. § 726.105(2)....
...insolvency. The Court’s determination of fraudulent conveyance was not controlled by the provision cited by the Hysells in their motion for reconsideration. As stated in the Court’s order of October 14, 1994, the Court relied upon Fla.Stat.Ann. § 726.105(l)(a) in reaching its decision....
CopyPublished | United States Bankruptcy Court, S.D. Florida.
...dly fraudulent transfers received from the Suppliers. The Plaintiff, in his Amended Complaint, asserts four causes of action 2 against the Defendant: (1) avoidance and recovery of fraudulent transfers pursuant to 11 U.S.C. § 541 and Florida Statute §
726.105; (2) avoidance and recovery of fraudulent transfers pursuant to 11 U.S.C. § 548 (a)(1)(B) and § 550; (3) avoidance and recovery of fraudulent transfers pursuant to 11 U.S.C. § 544 and Florida Statutes §
726.105(()(b) and §
726.108; and (4) avoidance and recovery of fraudulent transfers pursuant to 11 U.S.C....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 23 Fla. L. Weekly Fed. B 163, 2011 Bankr. LEXIS 4140, 55 Bankr. Ct. Dec. (CRR) 209, 2011 WL 5222839
...but are, instead, lumped together simply as members of a certain class of defendants and as general participants in the alleged schemes. For example, in count I for fraudulent conveyance, brought pursuant to 11 U.S.C. § 544(b) and Florida Statutes section 726.105(1)(a), Plaintiff sues "the EHF Defendants, the Wholesaler Defendants, and the Auction Defendants ......
CopyPublished | United States Bankruptcy Court, M.D. Florida
...14 In Count I of the Complaint, the Trustee alleges a constructive fraudulent transfer claim under § 548(a)(1)(B) of the Bankruptcy Code and seeks avoidance of the transfer under § 550 of the Code. 15 In Counts III and Y *601 of the Complaint, the Trustee- alleges- a fraudulent transfer claim under §
726.105(l)(b) and §
726.106(1) of the Florida Statutes, respectively, and seeks to avoid the transfer under §§ 544 and 550 of the Bankruptcy Code....
...Insolvency Insolvency for fraudulent transfer purposes is a question of fact which requires “fair valuation.” 20 The Trustee’s *602 Complaint states a plausible claim against Equity IX for receiving a fraudulent transfer under § 548(a)(1)(B) of the Bankruptcy Code, and under §§
726.105(l)(b),
726.106(1), Florida Statutes....
...In Count II of the Complaint, the Trustee alleges a constructive fraudulent transfer claim under § 548(a)(1)(B) of the Code, and seeks avoidance of the transfer under § 550 of the Code. 34 In Counts IV and VI- of the Complaint, the Trustee alleges a-fraudulent transfer claim under §
726.105(l)(b) and §
726.106(1), Fla....
...d; or *601 (IV) made such transfer to or for the benefit of an insider, or incurred such obligation to or for the benefit of an insider, under an employment contract and not in the ordinary course of business. .Count III of the Complaint is based on § 726.105(l)(b) of the Florida Statutes....
CopyPublished | Florida 3rd District Court of Appeal
...ant to the Uniform
Fraudulent Transfers Act: 3
A cause of action with respect to a fraudulent
transfer or obligation under ss.
726.101-726.112 is
extinguished unless action is brought:
(1) Under s.
726.105(1)(a), within 4 years after the
transfer was made or the obligation was incurred or,
if later, within 1 year after the transfer or obligation
was or could reasonably have been discovered by
the claimant;
(2) Under s.
726.105(1)(b) or s....
...726.106(1), within
4 years after the transfer was made or the obligation
was incurred . . . .
the supplemental complaint are subject to chapter 726 and the rules of civil
procedure.”).
3
The Judgment Creditor’s cause of action appears to be brought under
section 726.105(1)(a) because it alleges the transfer was intentionally made
to defraud....
CopyPublished | Florida 3rd District Court of Appeal | 2012 WL 1859417, 2012 Fla. App. LEXIS 8135
...This is an appeal from a final order granting a judgment creditor’s motion for summary judgment in a proceeding supplementary filed against the judgment debtor’s wife. The order set aside the transfer by quitclaim of two parcels of real property on the ground they were fraudulently made in violation of sections 726.105(1) and 726.105(2), Florida Statutes (2009)....
...stitutional homestead provision, article X, section 4 of the Florida Constitution; and (4) with respect to either parcel, any fraudulent transfer claim is barred by section
726.110, Florida Statutes (2009), which extinguishes a cause of action under section
726.105(l)(a), unless the action is brought “within [four] years after the transfer was made or the obligation was incurred or, if later, within [one] year after the transfer or obligation was or could reasonably have been discovered by the claimant.” Reversed and remanded for further proceedings....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 22 Fla. L. Weekly Fed. B 59, 2009 Bankr. LEXIS 2924, 2009 WL 3018090
...eating a misleading public perception of Skyway and thereby "causing hundreds of millions of shares of Skyway stock to be issued improperly." (¶¶ 25, 30, 31), The Complaint contains three Counts: (1) an action to recover fraudulent transfers under §
726.105 of the Florida Statutes; (2) an action to recover fraudulent transfers under §
726.106 of the Florida Statutes; and (3) an action for unjust enrichment....
CopyPublished | District Court, S.D. Florida | 2012 U.S. Dist. LEXIS 66868, 2012 WL 1676762
...based -on additional services that Plaintiff provided. D. Aronson and Mofshin’s Motion to Dismiss or for a More Definite Statement of Count VII. Aronson and Mofshin seek to dismiss Count VII, a claim for fraudulent transfer pursuant to Fla. Stat. § 726.105 (l)(a) brought against all Defendants, on the grounds that Plaintiffs “allegation that the Individual Defendants [Aronson and Mofshin] provided Euro with the Putative Guaranties prior to receiving the alleged fraudulent transfers from Gr...
...Plaintiff disputes that Count VII should be dismissed or that Aronson and Mofshin are entitled to a more definite statement because “a valid guaranty fraudulently entered may still be enforced against the guarantor.” Aronson & Mofshin Response at 5. The Florida fraudulent transfer statute, Fla. Stat. § 726.105 , provides that “[a] transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation ... [w]ith actual intent to hinder, delay, or defraud any creditor of the debtor.” Fla. Stat. § 726.105 (1)....
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 15 Fla. L. Weekly Fed. B 163, 2002 Bankr. LEXIS 511, 39 Bankr. Ct. Dec. (CRR) 162
...laint”), instituting the instant Adversary Proceeding. In the Complaint, the Trustee asserts that the transfer of the Manalapan Property to the Defendant constitutes a fraudulent transfer pursuant to 11 U.S.C. § 548 (a)(1)(B) and Florida Statutes §
726.105(l)(b) and §
726.106(1)....
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 20 Fla. L. Weekly Fed. B 352, 2007 WL 776262, 2007 Bankr. LEXIS 821
...Gosman was not paying his debts as they came due at the time of each of the transfers, and each transfer deepened Mr. Gosman's insolvency. The transfers had the added effect of leaving Mr. Gosman with inadequate capital. Therefore, all of the transfers are avoided under Fla. Stat. § 726.105....
CopyPublished | District Court, S.D. Florida | 2012 U.S. Dist. LEXIS 86054, 2012 WL 2367850
...ontract, civil RICO, 4 violations of the ILSA, 5 and breach of fiduciary duty stemming from the alleged fraudulent sale of properties in Costa Rica. (Third Am. Compl., DE # 150). Plaintiffs also assert claims for fraudulent transfer under Fla. Stat. § 726.105 against the Fraudulent Transfer Defendants....
CopyPublished | Florida 3rd District Court of Appeal | 2014 WL 2756524, 2014 Fla. App. LEXIS 9219
...their interests.- In the present case, Puleo’s substantive claims against Leslie Golan (and for garnishment with respect to sums otherwise payable by Scorpion to Yali Golan or both Golans) are based on Florida’s Uniform Fraudulent Transfer Act, section 726.105, Florida Statutes (2007) (FUFTA). Under section 726.105(l)(b), Yali Golan transferred his ten million Scorpion Performance shares to joint names “[without receiving a reasonably equivalent value in exchange for the transfer,” and Yali Golan was engaged in a business or transaction (the...
...y’s fees and costs following the entry of judgment against him) for which his remaining assets were unreasonably small (here, nonexistent). Yali Golan’s actual intent to hinder, delay, or defraud Puleo regarding' the collection of h'is judgment (section 726.105(l)(a), (2)(a)-(k)) may also be determined following a consideration of the so-called “badges of fraud,” whether: (a) The transfer or obligation was to an insider....
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 17 Fla. L. Weekly Fed. B 201, 2004 Bankr. LEXIS 906
...On March 4, 2004, defendants filed a motion for leave to file a counterclaim, including a count seeking avoidance of an *303 allegedly fraudulent transfer of the Debtor's homestead to the Plaintiff. Jurisdiction was premised on § 544(b) of the Bankruptcy Code and Fla. Stat. § 726.105(b)....
...The Court granted the Motion to Dismiss, because, upon further review and analysis, the Court found that the Debtor could not pursue a claim under § 522(h), utilizing the Trustee's avoidance powers under § 544 of the Bankruptcy Code and Fla. Stat. § 726.105(b), since the subject of the fraudulent conveyance action was exempt property and creditors cannot avoid a transfer of exempt property under § 726.105....
...endants failed to timely file an Amended Counterclaim which provides a basis for this Court to retain jurisdiction. On May 12, 2004, Defendants timely filed their Amended Counterclaim (CP# 19). Seeking to cure the problem that precluded relief under § 726.105, namely the inability of creditors to utilize that Florida Statute to avoid transfers of exempt property, the Debtor no longer claims the property as exempt. In the Amended Counterclaim, Defendants assert that they are entitled to a recovery of what is now non-homestead property under the trustee's strong-arm avoidance powers in § 544(b) of the Bankruptcy Code and Fla. Stat. § 726.105(b)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...ship Entities, filed
this suit against JPMC in state court based on JPMC’s handling of the Receivership
Entities’ accounts. He sought (1) avoidance and recovery of certain fraudulent
transfers allegedly made to JPMC under the FUFTA, Fla Stat. § 726.105(1)(a), and
(2) damages for JPMC’s aiding and abetting the Ponzi schemers’ breach of their
4
Case: 17-15585 Date Filed: 06/01/2020 Page: 5 of 26
fiduciary duties,...
...Fla. Stat.
§
726.108(1)(a). Under the FUFTA, “[a] transfer made . . . by a debtor is
fraudulent as to a creditor . . . if the debtor made the transfer . . . [w]ith actual
intent to hinder, delay, or defraud any creditor of the debtor.” Id. §
726.105(1)(a).
To prevail on a fraudulent transfer claim, a creditor must demonstrate (1) there was
a creditor to be defrauded, (2) a debtor intending fraud, and (3) a conveyance—i.e.,
6
...
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 2017 Bankr. LEXIS 1888, 64 Bankr. Ct. Dec. (CRR) 101
...Based upon the claims of Office Depot and New England discussed above, the Trustee has established the existence of actual creditors with allowable claims under 11 U.S.C. § 502 who could have avoided the Transfers. 1. Actual Fraudulent Transfers Under Section 726.105(l)(a) of the Florida Statutes (Count I) Pursuant to the Trustee’s statutory powers under 11 U.S.C. § 544 , the Trustee can recover transfers made with “actual intent to hinder, delay, or defraud any creditor of the debtor” under Florida law. See 11 U.S.C. § 544 ; Fla. Stat. § 726.105 (l)(a); Aqua Clear, 361 B.R....
...s incurred, (j) the transfer occurred shortly before or shortly after a substantial debt was incurred, and (k) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Fla. Stat. § 726.105 (2)....
...Ann. §
726.110 (1). Based on the foregoing, the Trustee has established that the' Transfers benefited the Luboffs, and were made with the actual intent to hinder, delay or defraud creditors and are avoided pursuant to 11 U.S.C. § 544 and Fla. Stat. §
726.105 (l)(a)....
...The Trustee accordingly can recover the amount of the Transfers pursuant to 11 U.S.C. § 550 (a). The Court will enter judgment in favor of the Trustee on Count I in the amount of $1,602,956.99 against Mr. Luboff and Mrs. Luboff, jointly and severally. 2. Constructive Fraudulent Transfers Claims Under Sections
726.105(l)(b), and Section
726.106(1) of the Florida Statutes (Counts II and III) Under 11 U.S.C. § 544 and sections
726.105(l)(b) and
726.106(1) of the Florida Statutes, transfers that were made for less than reasonably equivalent value while a debtor is insolvent, or caused the insolvency, are likewise avoidable. Fla. Stat. §§
726.105 (l)(b) and
726.106(1)....
CopyPublished | United States Bankruptcy Court, S.D. Florida.
...the Defendant the money transferred pursuant to 11 U.S.C. § 550 . In Count I of the Complaint, the Plaintiff seeks to avoid the Transfers pursuant to 11 U.S.C. § 548 (a)(1)(A), 11 U.S.C. § 544 (b)(1), Fla. Stat. §
726.108 (1)(a), and Fla. Stat. §
726.105 (l)(a), alleging that the Debtor made the Transfers with the actual intent to hinder, delay or defraud its present or future creditors....
...inary course of business for the benefit of insiders, i.e., the Kanes. In Count III of the Complaint, the Plaintiff seeks to avoid the Transfers pursuant to 11 U.S.C. § 544 (b)(1), Fla. Stat.
726.108(1)(a), Fla. Stat. §
726.106 (1), and Fla. Stat.
726.105(1)(b), alleging that the transfers were constructively fraudulent because the Debtor did not receive reasonably equivalent value for the Transfers and the Debt- or: (a) was insolvent on the dates of the Transfers or became insolvent as a resu...
CopyPublished | United States Bankruptcy Court, S.D. Florida.
...' Based upon the foregoing allegations, the Trustee asserts seven causes' of action against the Defendant: (I) avoidance and recovery of fraudulent transfer pursuant to 11 U.S.C. § 548 (a)(1)(B); (II) avoidance and recovery of fraudulent transfer pursuant to 11 U.S.C. § 544 and Florida Statutes § 726.105(l)(b); ' (III) avoidance and recovery of fraudulent transfer pursuant to 11 U.S.C....
CopyPublished | United States Bankruptcy Court, S.D. Florida.
...alleged fraudulent transfers made by the Debtors to the Defendants under the actual and constructive fraud provisions of section 2 548(a)(l)(A)-(B) and under the actual and constructive fraud provisions of section 544 incorporating Florida Statutes § 726.105(l)(a)-(b), and to recover the alleged fraudulent transfers from the Defendants pursuant to section 550....
...The Trustee must show two things in order to recover the aggregate amount deposited into the various bank accounts maintained by the Debtors with the Defendants. First, the Trustee must show that there was a fraudulent transfer under section 548 or under section 544 incorporating Florida Statutes § 726.105(l)(a)-(b)....
...” The Trustee argues that he can avoid the relevant transfers (ie., the aggregate amount deposited into the various bank accounts maintained by the Debtors with the Defendants) under section 544(b)(1) because they are voidable under Florida law, specifically Florida Statutes § 726.105(l)(a)-(b)....
...transaction for which the remaining assets of the debtor were unreasonably small” or “intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.” Fla. Stat. § 726.105 (l)(a)-(b)....
...n was incurred, (j) The transfer occurred shortly before or shortly after a substantial debt was incurred, (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Fla. Stat. § 726.105 (2)....
CopyPublished | Florida 4th District Court of Appeal
...admissible as a party admission under section
90.803(18)(a), Florida
Statutes (2022).
We disagree. Appellant’s alleged fraud in the bankruptcy proceedings
appears more akin to a fraudulent transfer rather than the theft offenses
charged by the State. See §
726.105(1)(a), Fla....
CopyPublished | United States Bankruptcy Court, M.D. Florida
...f the transfers. 13 Conclusions of Law 14 The Trustee need not show that the Debtor was insolvent if she can prove that the Debtor had the actual intent to hinder, delay, or defraud his creditors. 15 To prevail on her fraudulent transfer claim under section 726.105(l)(a), the Trustee need only prove that (i) the Debtor transferred property within four years of filing his bankruptcy case; and (ii) the transfer was made with the actual intent to hinder, delay, or defraud any creditor....
...against him, did not receive reasonably equivalent value in exchange for the transfers, and retained (at least some) control of the property after it was transferred, the Trustee is entitled to summary judgment as a matter of law on her claims under section 726.105(1)(a), Florida Statutes (Counts I and IV)....
...The Court has jurisdiction over this contested matter under 28 U.S.C. § 1334 . This is a core proceeding under 28 U.S.C. § 157 (b)(2)(H). The parties have consented to the Court’s entry of a final judgment in this proceeding for purposes of 28 U.S.C. § 157 (c)(2). . §
726.105(1)(a), Fla. Stat. . Id. . In re McCarn’s Allstate Finance, Inc.,
326 B.R. 843, 849 (Bankr.M.D.Fla.2005) (quoting In re Toy King Distrib.,
256 B.R. 1, 126 (Bankr.M.D.Fla.2000)). . Id. (citing In re Levine,
134 F.3d 1046 , 1053 (11th Cir.1998)). . §
726.105(2), Fla....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 18 Fla. L. Weekly Fed. B 315, 2005 Bankr. LEXIS 1303, 2005 WL 1660854
...neja within four years of the Petition Date (collectively, the "Four Year Transfers"). (Doc. 1, Complaint, p. 8). Count IV and Count V of the Complaint consist of actions to avoid the Four Year Transfers pursuant to § 544 of the Bankruptcy Code and § 726.105 of the Florida Statutes....
...the Defendant as set forth in Paragraph 4(B) of the Departure Agreement. . . . . . 8. The Departure Agreement (or at least that portion of the Departure Agreement that purports to release causes of action against the Defendant) is avoidable under §§
726.105 and
726.106 and 11 U.S.C....
...insufficient or frivolous on its face." United States v. Hollar,
885 F.Supp. 822, 826 (M.D.N.C.1995). The Plaintiff's proposed Amendment in this case is not futile. The proposed Amendment is brought pursuant to § 544(b) of the Bankruptcy Code and §§
726.105 and
726.106 of the Florida Statutes, and must be read in conjunction with the General Allegations and other Counts set forth in the original Complaint....
CopyPublished | Florida 4th District Court of Appeal
...ring the Aventura Unit
Under Florida’s Uniform Fraudulent Transfer Act (“UFTA”), a transfer
is fraudulent as to a creditor if the debtor made the transfer “[w]ith actual
intent to hinder, delay, or defraud any creditor of the debtor.” §
726.105(1)(a), Fla....
...(j) The transfer occurred shortly before or shortly after a
substantial debt was incurred.
(k) The debtor transferred the essential assets of the business
to a lienor who transferred the assets to an insider of the
debtor.
§ 726.105(2)(a)-(k), Fla....
...We reject that claim because Mane did not exchange reasonably
equivalent value for the Aventura Unit, nor was it a subsequent transferee
of a person who took in good faith and for a reasonably equivalent value.
Under the UFTA, a transfer “is not voidable under s.
726.105(1)(a)
against a person who took in good faith and for a reasonably equivalent
value or against any subsequent transferee or obligee.” §
726.109(1), Fla.
Stat....
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 9 Fla. L. Weekly Fed. B 265, 1996 Bankr. LEXIS 4, 28 Bankr. Ct. Dec. (CRR) 428
...The Contentions of the Parties The Liquidating Trustee, acting on behalf of the interest of all creditors, seeks to set aside the obligation to Bellomy-Lawson as fraudulent utilizing the “strong arm” powers under 11 U.S.C. § 544 , together with the Uniform Fraudulent Transfer Act, Fla.Stat. § 726.105, asserting that the obligation in question was given for patently insufficient consideration and that the Debtor knew, at the time the obligation was incurred, that it intended to be in business and would incur *467 debts which it had no reasonable expectation of being able to repay from its own resources....
...ll assets of the debtor as of the date of the filing of the petition for bankruptcy rehef. Section 544 allows the trustee to utilize available state law for the purpose of avoidance of various transactions. Here, the apphcable state law is Fla.Stat. § 726.105, which provides, in relevant part that: (1) A transfer made or obhgation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obhgation was incurred, if the debtor made the transfer or incurred the obh-gation ....
...ow that, far from turning around, it continued to amass more debt until the involuntary petition was filed. Therefore, Plaintiff has amply demonstrated the factual prerequisite for a constructively fraudulent obligation and conveyance under FlaStat. § 726.105(l)(b)....
...By way of contrast, Bellomy-Lawson has asserted that the Debtor was “balance sheet” solvent both before and after the subject transaction. Even assuming arguendo this to be the case, “balance sheet” solvency is not the proper test under FlaStat. § 726.105(l)(b)(l) or (2). “Balance sheet” solvency only comes into play if a claim is made to avoid a fraudulent transfer that was made with actual intent to hinder, delay or defraud under FlaStat. § 726.105(l)(a)....
CopyPublished | District Court, M.D. Florida | 2013 WL 246731, 2013 U.S. Dist. LEXIS 8969
...r constructive fraud. See e.g. Wiand v. Waxenberg,
611 F.Supp.2d 1299, 1318-19 (M.D.Fla.2009); In re World Vision Entertainment, Inc.,
275 B.R. 641 (M.D.Fla. 2002). And in count I, the Receiver proceeds under both of these theories. Under Fla. Stat. §
726.105 (1)(a), codifying actual fraud, the Receiver claims the transfers of false profits were fraudulent because Nadel (the debtor) caused the hedge funds to make the transfers to Dancing $ as part of a scheme with actual intent to hinder, delay, or defraud creditors of Nadel, the fund managers and/or the hedge funds....
...12 As such, the Receiver alleges a right to repayment of the investors’ commingled principal investment money in an amount equivalent to Dancing $’s false profits from one or more of the hedge funds. The Receiver also proceeds under Fla. Stat. §§
726.105 (1)(b) and
726.106(1), for constructive fraud....
...v. Waxenberg,
611 F.Supp.2d 1299, 1312 (M.D.Fla.2009) citing In re McCarn’s Allstate Fin. Inc.,
326 B.R. 843, 850 (M.D.Fla.2005) (existence of a ponzi scheme suffices as a matter of law to prove actual intent to defraud for purposes of Fla. Stat. §
726.105 (1)(a))....
...rs was from cash infused by new investors. Waxenberg, supra, at 1312 . Here, the Receiver’s motion for summary judgment adopts this ponzi-scheme method to establish that the monies transferred to Dancing $ were fraudulent transfers in violation of § 726.105(1)(a)....
...Although the Receiver points to the start date of Nadel’s scheme as the critical date, the relevant period is the time of the transfers. In re Old Naples Sec., Inc.,
343 B.R. 310, 319 (M.D.Fla.2006) (examining intent at time transfers made when interpreting Fla. Stat. §
726.105 (1)(a)); Veigle v. U.S.,
873 F.Supp. 623 (M.D.Fla.1994) (determining transferor’s intent to defraud at time transfer made for purposes of Fla. Stat.
726.105(1)(a)); Bay View Estates Corp....
...Upon consideration of the evidence before me, I find that Nadel operated the hedge funds as a ponzi scheme at the time of the transfers to Dancing $, and that the uncontroverted transfers to Dancing $ were made with the actual intent to hinder, delay, or defraud as required by Fla. Slat. § 726.105(1)(a)....
...the business or transaction; (2) intended to, believed, or reasonably should have believed that he or she would incur debts beyond his or her ability to pay them as they became due; or (3) was insolvent at the time of the transfer. See Fla. Stat. §§
726.105 (1)(b)(1)-(2) and
726.106(1). The Receiver asserts that the transfers were also fraudulent under Fla. Stat. §
726.105 (1)(b) because Nadel caused the hedge funds to make those transfers and Nadel, the fund managers, and the hedge funds were engaged or were about to engage in a business or transaction for which their remaining assets were unreasonably smal...
CopyPublished | Florida 2nd District Court of Appeal
...Motion to Intervene, Avoid Assignment, and For Other Relief." We have
jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); 9.170(b)(4). Without
allowing TRA to meaningfully contest the allegations against it, the trial
court found that TRA engaged in a fraudulent conveyance of assets. See
§ 726.105(1)(a), Fla....
...then I do think that under [chapter 736, Florida Statutes,]
that the intent of the parties is certainly relevant to whether
or not it was a fraudulent conveyance, and that there's
language to that effect embedded in that chapter.
....
726.105 codifies that it's specifically required that there
be a determination that if a transfer is fraudulent, that it's --
726.105(1)(a), that it's made with the actual intent to hinder,
a judgment creditor against Mark....
...he
relevant folks at [TRA] and there was a cash buyout according to the -- in
exchange for the assignment, so that agreement does not represent the
actual transaction that occurred."
4
creditor of the debtor." § 726.105(1)(a)....
...appeal of the
truth of such facts when the motion has been denied by the lower court.
They must be made to appear affirmatively on the record.").
5
Proving "actual intent" is no small feat. Consequently, "section
726.105(2) provides that fraudulent intent may be presumed from
evidence of 'badges of fraud.' " Beal Bank SSB v....
...4th DCA 1998)); see also Mane FL Corp. v. Beckman,
355 So. 3d
418, 425 (Fla. 4th DCA 2023) ("Because establishing actual intent
through direct proof is difficult, the UFTA looks to circumstantial indicia
of intent commonly known as 'badges of fraud.' "). Section
726.105(2)(a)-
(k) presents a nonexhaustive list of these badges....
...Instead of conducting a thorough evidentiary hearing on the issues
of actual intent and TRA's defense that it acted in good faith and
provided a reasonably equivalent value, the trial court acted quickly to
stave off what it saw as impending disaster. See §
726.109(1) ("A transfer
or obligation is not voidable under s.
726.105(1)(a) against a person who
took in good faith and for a reasonably equivalent value or against any
subsequent transferee or obligee.").
Expediency, however, cannot strip TRA of its opportunity to
meaningfully defend itself....
CopyPublished | Florida 1st District Court of Appeal | 2002 Fla. App. LEXIS 1121, 2002 WL 181270
...Contrary to the position taken by the trial court, we conclude that the scope of this court’s remand in Sackett was not confined solely to the issue of whether the 1995 sale of Shoreline Realty to FBS Acquisitions constituted a fraudulent transfer under section 726.105(l)(b), Florida Statutes (1995)....
CopyPublished | Court of Appeals for the Eleventh Circuit | 216 B.R. 1046, 1998 U.S. App. LEXIS 1677, 1998 WL 39164
...filed a voluntary
petition for relief under Chapter 7 of the United States Bankruptcy Code in 1991. Charles Weissing
(the "trustee") was appointed trustee of the bankruptcy estate and, shortly thereafter, filed a
complaint pursuant to Fla. Stat. § 726.105 to set aside as fraudulent the transfer of approximately
$440,000.00 of non-exempt assets to several insurance companies for the purchase of annuities
which are exempt from the claims of creditors under Florida law....
...oduced in relevant part:
Pursuant to the provisions of Florida Statute Section
726.108 entitled remedies of
creditors, the Court may avoid a transfer found to be fraudulent pursuant to the provisions
of Florida Statutes Section
726.105 to the extent necessary to satisfy a creditor's claim....
...on-exempt to exempt status does not constitute
a transfer and, thus, cannot be attacked under Florida law. Second, they posit that, even if the
conversion in question was a transfer, the funds currently are exempt under Florida law and Fla. Stat.
726.105 cannot be used to collaterally challenge the exempt status of these annuities....
...upon a showing by extrinsic evidence that the Debtor converted non-exempt
property into exempt property with the specific intent to defraud his or her
creditors....
....
B. Has Fla. Stat. § 726.105 properly been invoked?
The Levines further argue that, assuming that a transfer did occur in this instance, the
annuities are now exempt and cannot be contested collaterally through § 726.105....
...bly small in relation to the business or
transaction; or
2. Intended to incur, or believed or reasonably should have believed that he or she would
incur, debts beyond his or her ability to pay as they became due.
Fla. Stat. § 726.105(1)....
...209, 212 (1917)
(stating that the homestead exemption "applies not only to formal and technical process, but to any
judicial proceedings, of law or in equity, which seek the appropriation of the property to the payment
of debts.").
The trustee, on the other hand, points to more recent decisional law applying § 726.105
specifically to bankruptcy cases analogous to this one: In re Gefen, 35 B.R....
...368
(Bankr.S.D.Fla.1984), for instance, concerned a finding by the bankruptcy court that the debtor had
transferred money from an individual retirement account into an annuity for the purpose of
defrauding a creditor. In upholding the bankruptcy court's application of § 726.105, the district court
in Gefen noted that
[t]he debtor could have chosen numerous investment vehicles with high rates of return for
the proceeds of his I.R.A., or he could have applied them toward payment of the Final...
...t action and effectively should govern
our resolution of this issue. Although we must respect the reluctance of Florida courts to interfere
with exempt assets, we also must be guided by those courts that have relied on the unambiguous
language of § 726.105 to set aside transfers from non-exempt to exempt status when such transfers
were effected in order to defraud creditors....
...Although the Levines correctly observe that the distinction between setting
aside a transfer as fraudulent and declaring an otherwise exempt asset to be non-exempt achieves,
from their perspective, the same outcome, it is also a very real distinction that is provided for by
Florida law, as embodied in § 726.105, and that has been applied by both Florida bankruptcy courts
and federal district courts....
...funds. Where, as in this case, there is an allegation that the transfer itself was fraudulent and should
therefore be set aside (as opposed to an allegation that the transfer was fraudulent and the assets
therefore should be declared non-exempt), § 726.105 may properly be invoked.
C....
...Florida legislature did not intend
a remedy to exist for fraudulent transfer of funds from non-exempt to exempt status; in fact, at least
one court has held that, prior to the adoption of §
222.30, the statutory provision at issue in this case,
§
726.105, governed any type of fraudulent transfer including those transfers resulting in exempt
funds....
...re was no Florida law providing that a debtor
forfeits her right to an exemption as a consequence for fraudulent conduct.
This legal conclusion is incorrect in light of the following statutes. Florida Statutes
§
726.105 and §
726.108, effective at the time of the Annuity purchase, would appear to
enable Ameritrust to avoid the transfer or Annuity purchase.
Id. at 552 (internal citation omitted).
We conclude, as did the district court in Davidson, that prior to the adoption of §
222.30, §
726.105 governed allegations of fraudulent transfers regardless of whether the challenged transfers
resulted in exempt assets....
...This
explicit cross-referencing of the two statutory provisions further suggests not only that they are to
be read in tandem but, more importantly, that §
222.30 is a subset of the causes of action outlined
in § 726. We determine that the legislative amendment embodied in §
222.30 does not preclude
reliance on §
726.105 regarding causes of action that accrued prior to the amendment's enactment.
D....
...(j) The transfer occurred shortly before or shortly after a substantial debt was incurred.
(k) The debtor transferred the essential assets of the business to a lienor who transferred the
assets to an insider of the debtor.
Fla. Stat. § 726.105(2).
Based on the record evidence and testimony provided at an evidentiary hearing, there exists
sufficient evidence to affirm that the Levines converted non-exempt assets to annuities that are
exempt under Florida law shortly aft...
...annuities constituted an attempt to defraud a known creditor and avoiding that transfer; they further
contend that the district court erred in affirming that decision. We hold that (1) the Levines'
purchase of annuities was a "transfer" under the pertinent Florida law; (2) Fla. Stat. § 726.105
properly was invoked and relied upon to challenge the nature of the transfer; (3) the amendment to
Florida's statutory scheme regarding the fraudulent conversion of assets embodied in Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
...“Levines”), filed a voluntary petition for relief under Chapter 7 of the
United States Bankruptcy Code in 1991. Charles Weissing (the
“trustee”) was appointed trustee of the bankruptcy estate and,
shortly thereafter, filed a complaint pursuant to Fla. Stat. § 726.105
to set aside as fraudulent the transfer of approximately $440,000.00
of non-exempt assets to several insurance companies for the
purchase of annuities which are exempt from the claims of creditors
under Florida law....
... Pursuant to the provisions of Florida
Statute Section
726.108 entitled remedies of
creditors, the Court may avoid a transfer found
to be fraudulent pursuant to the provisions of
Florida Statutes Section
726.105 to the extent
necessary to satisfy a creditor’s claim....
...-
exempt to exempt status does not constitute a transfer and, thus,
cannot be attacked under Florida law. Second, they posit that, even
if the conversion in question was a transfer, the funds currently are
exempt under Florida law and Fla. Stat. 726.105 cannot be used to
7
collaterally challenge the exempt status of these annuities....
...itical question in this
case -- that is, whether the Levines’ purchase of annuities could
be characterized as a “transfer” for purposes of bankruptcy law
prohibiting fraudulent transfers.
12
b. Has Fla. Stat. § 726.105 properly been invoked?
The Levines further argue that, assuming that a transfer did
occur in this instance, the annuities are now exempt and cannot be
contested collaterally through §726.105....
...2. Intended to incur, or believed or reasonably
should have believed that he or she would
13
incur, debts beyond his or her ability to pay as
they became due.
Fla. Stat. § 726.105(1)....
...only to formal and technical process, but to any judicial proceedings,
of law or in equity, which seek the appropriation of the property to
the payment of debts.”).
The trustee, on the other hand, points to more recent decisional
law applying §726.105 specifically to bankruptcy cases analogous
15
to this one: In re Gefen, 35 B.R....
...1984), for
instance, concerned a finding by the bankruptcy court that the debtor
had transferred money from an individual retirement account into an
annuity for the purpose of defrauding a creditor. In upholding the
bankruptcy court’s application of § 726.105, the district court in
Gefen noted that
[t]he debtor could have chosen numerous
investment vehicles with high rates of return for
the proceeds of his I.R.A., or he could have
applied them toward pa...
...our
resolution of this issue. Although we must respect the reluctance of
Florida courts to interfere with exempt assets, we also must be
guided by those courts that have relied on the unambiguous
17
language of § 726.105 to set aside transfers from non-exempt to
exempt status when such transfers were effected in order to defraud
creditors....
...Although the Levines correctly observe that the
distinction between setting aside a transfer as fraudulent and
declaring an otherwise exempt asset to be non-exempt achieves,
from their perspective, the same outcome, it is also a very real
distinction that is provided for by Florida law, as embodied in §
726.105, and that has been applied by both Florida bankruptcy
courts and federal district courts....
...transferred funds. Where, as in this case, there is an allegation that
the transfer itself was fraudulent and should therefore be set aside
(as opposed to an allegation that the transfer was fraudulent and the
assets therefore should be declared non-exempt), § 726.105 may
properly be invoked.
c....
...Florida legislature did not intend a remedy to exist for fraudulent
transfer of funds from non-exempt to exempt status; in fact, at least
one court has held that, prior to the adoption of §
222.30, the
statutory provision at issue in this case, §
726.105, governed any
type of fraudulent transfer including those transfers resulting in
exempt funds....
...that a debtor forfeits her right to an
exemption as a consequence for
fraudulent conduct.
This legal conclusion is incorrect in light of
the following statutes. Florida Statutes §
726.105 and §
726.108, effective at the time of
the Annuity purchase, would appear to enable
Ameritrust to avoid the transfer or Annuity
purchase.
Id. at 552 (internal citation omitted).
We conclude, as did the district court in Davidson, that prior to
the adoption of §
222.30, §
726.105 governed allegations of
fraudulent transfers regardless of whether the challenged transfers
resulted in exempt assets....
...This
explicit cross-referencing of the two statutory provisions further
suggests not only that they are to be read in tandem but, more
importantly, that §
222.30 is a subset of the causes of action outlined
in § 726. We determine that the legislative amendment embodied
in §
222.30 does not preclude reliance on §
726.105 regarding
causes of action that accrued prior to the amendment’s enactment.
d....
...rtly before or
shortly after a substantial debt was incurred.
(k) The debtor transferred the essential assets
of the business to a lienor who transferred the
assets to an insider of the debtor.
Fla. Stat. § 726.105(2).
Based on the record evidence and testimony provided at an
evidentiary hearing, there exists sufficient evidence to affirm that the
Levines converted non-exempt assets to annuities that are exempt
under Florida law shortly afte...
...constituted an attempt to defraud a known creditor and avoiding that
transfer; they further contend that the district court erred in affirming
that decision. We hold that (1) the Levines’ purchase of annuities
was a “transfer” under the pertinent Florida law; (2) Fla. Stat. §
726.105 properly was invoked and relied upon to challenge the
nature of the transfer; (3) the amendment to Florida’s statutory
scheme regarding the fraudulent conversion of assets embodied in
Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit | 18 U.C.C. Rep. Serv. 2d (West) 588, 1992 U.S. App. LEXIS 2691, 1992 WL 22976
...The district court never responded specifically to the Schutzmans’ motion, but made a fact finding of fraud in its Final Plan. However, the district court did not discuss which facts it used in its analysis or how it found the facts if it did, indeed, find them. Fla.Stat. 726.105(l)(a) lists several factors the court should use in determining the debtor’s intent in making the transfer....
...These include the timing of the transfer, whether the debtor was insolvent, whether the debtor removed or concealed assets, whether the transfer occurred shortly before a substantial debt was incurred, and whether the transfer was to an insider. Fla.Stat. 726.105(l)(a)....
CopyPublished | District Court, S.D. Florida | 1995 U.S. Dist. LEXIS 2368, 1995 WL 86589
...For the following reasons, it is ORDERED AND ADJUDGED that: 1. Bankruptcy Court's Order Overruling Trustee's Objection to Exemption, dated February 24, 1994, is hereby REVERSED AND REMANDED with Instructions to Determine the Applicability of Florida Statutes §
726.105 and §
726.108....
...Debtors request that this Court affirm the Bankruptcy Court's Order Overruling Trustee's Objection to Exemption. Discussion The Bankruptcy Court's Order Overruling Trustee's Objection to Exemption is REVERSED and REMANDED with Instructions to Determine the Applicability of Florida Statutes §
726.105 and §
726.108 This Court has conducted a de novo review of the Bankruptcy Court's conclusion that Plaintiffs' Objections to Debtors' exemptions should be overruled....
...e for fraudulent conduct. See, Bankruptcy Court's Order, at 2. As set forth in this Court's opinion in Case Nos. 94-8178-CIV-ARONOVITZ and 94-8291-CIV-ARONOVITZ, this legal conclusion is incorrect in light of the following statutes. Florida Statutes §
726.105 and §
726.108, effective at the time the settlement proceeds were placed into the exempt Annuity, would appear to enable the Trustee to avoid the transfer or establishment of the Annuity in this case. In particular, Florida Statute §
726.105 provides: (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or in...
...Moreover, Florida Statute §
726.108(1) provides: In an action for relief against a transfer or obligation under ss.
726.101-726.112, a creditor . . . may obtain: (a) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor's claim. Due to the apparent applicability of Florida Statutes §
726.105 and §
726.108, the Bankruptcy Court's Order Overruling Trustee's Objection to Exemption is REVERSED AND REMANDED to the Bankruptcy Court to consider the applicability of §
726.105 and §
726.108 to the case at bar....
...*335 In summary and for the reasons set forth herein, it is ORDERED AND ADJUDGED that: 1. Bankruptcy Court's Order Overruling Trustee's Objection to Exemption, dated February 24, 1994, is hereby REVERSED AND REMANDED with Instructions to Determine the Applicability of Florida Statutes §
726.105 and §
726.108....
...In re Barker holds that Section 522 does not give the Court authority and In re Schwarb holds that Section 522 does give the Court authority. Because the Court finds that this case needs to be remanded to the Bankruptcy Court to consider the applicability of Florida Statutes §
726.105 and §
726.108, this Court does not need to address whether the rationale in In re Schwarb or In re Barker should be followed in this case.
CopyPublished | Florida 4th District Court of Appeal
...Prizzi’s personal
expenses, including his alimony; (3) judgment debtor monies were
transferred to Alexis; and (4) watches and other jewelry were given to
Alexis. Alternatively, Count I alleged that these transfers were made with
actual intent to defraud in violation of section 726.105, Florida Statutes.
Ultimately, the trial court entered summary judgment against the
plaintiffs on the fraudulent transfer count, relying on collateral estoppel
3
or res judicata, based on...
...tal complaint stated a cause of
action for a fraudulent transfer against Alexis. See Ferguson Enters., Inc.
v. Astro Air Conditioning & Heating, Inc.,
137 So. 3d 613, 615 (Fla. 2d DCA
2014) (holding that a complaint tracking the language of sections
726.105
and
726.106 sufficiently stated a claim of fraudulent transfer); In re 45
John Lofts, LLC, 599 B.R....
CopyPublished | District Court, M.D. Florida
...§ 895 , et seq. , Florida's RICO Act (Count III); a claim for fraud (Count IV); a claim for fraudulent concealment *1323 (Count V); a claim for negligent misrepresentation (Count VI); a claim for civil conspiracy (Count VII); a claim for violation of Fla. Stat. § 726.105 (1)(a), the Florida Uniform Fraudulent Transfer Act (FUFTA) (Count VIII); and a claim for aiding and abetting a violation of FUFTA (Count IX)....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 16 Fla. L. Weekly Fed. B 71, 157 Oil & Gas Rep. 1104, 2003 Bankr. LEXIS 118
...No. 98-152, by the entry of a Final Judgment entered on April 5, 2000. (Ex. 5 of Pl.). The Debtor 1st Deed, Debtor 2nd Deed and Debtor 3rd Deed were deemed to be void pursuant to 11 U.S.C. § 548 (a)(2)(A)(B)(i), 11 U.S.C. § 544 (b) and Fla. Stat. § 726.105 ....
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 7 Fla. L. Weekly Fed. B 376, 1994 Bankr. LEXIS 111
...§ 548 (a)(1) and recovery for the benefit of creditors pursuant to 11 U.S.C. § 550 ; 3) avoidance and recovery of the same alleged fraudulent conveyance under 11 U.S.C. § 548 (a)(2) and § 550; 4) avoidance of several transfers between 1988 and 1991 under FlaStat. §
726.105(l)(a) and 11 U.S.C. § 544 , and recovery pursuant to Fla.Stat. §
726.108 and 11 U.S.C. § 550 ; and 5) avoidance and recovery of the Count IV transfers under Fla.Stat. §
726.105(l)(b) and 11 U.S.C....
CopyPublished | Florida 4th District Court of Appeal
...Because the 1906 Property was unavailable to satisfy the judgment,
Westport sued both Strong and Appellant under FUFTA, alleging that the
transfer of the 1906 Property was made with the intent to delay, hinder,
or defraud Strong’s creditors and was fraudulent under section 726.105,
Florida Statutes (2016)....
...gift in equity 1 nor the loan for the 200 Main Property constituted
consideration for the sale.
Following a hearing, the trial court granted Westport’s summary
judgment motion finding Westport established all the elements of
fraudulent conveyance under section 726.105(1)(a)....
CopyPublished | Florida 3rd District Court of Appeal
...two claims brought under Florida’s Uniform Fraudulent Transfer Act, Chapter
726, Florida Statutes (2023). The trial court granted summary judgment on
Alliance’s claim under §
726.106(2) but denied summary judgment on
Alliance’s claim under §
726.105(1) “because there are genuine issues of
material fact in dispute regarding the elements of the claim.” The court then
entered an order titled “Final Judgment.”
Although the order on appeal is titled “Final Judgment,” it does not fully
resolve Alliance’s claims....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 25 Fla. L. Weekly Fed. B 156, 2014 Bankr. LEXIS 5152, 60 Bankr. Ct. Dec. (CRR) 116
...In the complaint, the trustee contends that all of these payments are avoidable either as having been made with the actual intent to defraud or having been made in exchange for less than reasonably equivalent value under the applicable provisions of 11 U.S.C. § 548 or Florida Statutes, §§
726.105 and
726.106....
...was made. 1 In a similar fashion, §
726.108, Florida Statutes, provides that a creditor (and in this case the trustee standing in the shoes of an unsecured creditor under 11 U.S.C. § 544 (b)(1)) may avoid a transfer that is fraudulent under either §
726.105 or §
726.106, Florida Statutes....
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 26 Fla. L. Weekly Fed. B 143, 2016 Bankr. LEXIS 4436, 63 Bankr. Ct. Dec. (CRR) 135
...(the “Debtor”), sues the Defendant to avoid and recover alleged fraudulent transfers the Debtor made to the Defendant under the actual intent provisions of 11 U.S.C. § 548 (a)(1)(A), and under the actual intent provisions of the laws of Florida ( Fla. Stat. § 726.105 (l)(a)) and New York ( N.Y....
CopyPublished | Court of Appeals for the Eleventh Circuit | 158 F. App'x 256
...made to appellees Westgate Vacation Villas, Ltd. and Westgate Lakes, Ltd.
(collectively, “Westgate”). The bankruptcy court set aside the payments as
fraudulent transfers of the Debtor’s property, pursuant to 11 U.S.C. § 544(b) and
Florida Statutes § 726.105(1)(b).
The central issue in the appeal is whether there is sufficient evidence to
conclude that the transfers involved the property of the Debtor, given that the
transfers were made from an account held by an entity named Internacional
Pharmacy Inc....
...filed
in its bankruptcy proceedings.
Accordingly, the bankruptcy Trustee initiated an adversary proceeding
against Westgate to recover the transfers made from the Internacional account,
pursuant to 11 U.S.C. § 544(b) and Florida Statutes § 726.105(1)(b)....
...In addition,
Florida law provides that a transfer made by a debtor is voidable as fraudulent
where the debtor made the transfer: (i) without receiving reasonably equivalent
value in exchange; (ii) and reasonably should have believed it would incur debts
beyond its ability to pay as they came due. See Fla. Stat. § 726.105(1)(b).
In order to exercise these powers, the Trustee must prove, in relevant part,
6
that the transfer at issue involved a property interest of the debtor....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Does Article X, Section 4 of the Florida Constitution exempt a Florida
homestead, where the debtor acquired the homestead using non-exempt
funds with the specific intent of hindering, delaying, or defrauding
creditors in violation of Fla. Stat. § 726.105 or Fla....
CopyPublished | United States Bankruptcy Court, S.D. Florida.
...alleged fraudulent transfers made by the Debtors to the Defendants under the actual and constructive fraud provisions of section 2 548(a)(l)(A)-(B) and under the actual and constructive fraud provisions of section 544 incorporating Florida Statutes § 726.105(l)(a)-(b), and to recover the alleged fraudulent transfers from the Defendants pursuant to section 550....
CopyPublished | District Court, S.D. Florida | 1997 U.S. Dist. LEXIS 21749
...ubmit proposed Findings of Fact and Conclusions of Law, which counsel did. On March 7, the court entered written Findings of Fact and Conclusions of Law in which he ruled that the Trustee had failed to meet his burden of proof under Florida Statutes § 726.105....
...52 advisory committee notes, and the conclusions of law under the de novo standard. The Court finds that reversal is appropriate because the bankruptcy court erred on several critical findings of fact. The record shows that the Trustee made out at least a prima facie case that the transfer was fraudulent. Florida Statutes § 726.105 sets forth the elements constituting a fraudulent transfer....
...g assets of the debtor were unreasonably small in relation to the business or transaction; or (2) Intended to incur, or believed or reasonably should have believed that he *338 would incur, debts beyond his ability to pay as they became due. FLStat. § 726.105(1) (West 1988 & Supp. 1997). In determining whether a debtor harbored actual intent as referred to in § 726.105(l)(a), eleven factors, or badges of fraud, listed at § 726.105(2)(a)-(k) may be considered....
...iminal case?” and “When will the indictment come down?” and “How do you feel?” (Id. at 49-50.) The Court finds that the transfer was the equivalent of Debtor transferring money to her husband, and thus to an “insider” as referred to in § 726.105(2)(a). 5 Section 726.105(d) lists a badge of fraud as “Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit.” At the time of the transfer, Debtor was being sued by the Resolution Trust Corporation....
...1 at 11); in December 1995, the RTC obtained a judgment against her for $1.2 million, (Tr. at 40-41). The court acknowledged the existence of this badge of fraud but found it alone to be insufficient to show fraudulent intent by the Debtor. (Findings of Fact at 5 n. 2.) Section 726.105(h) states, “The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred.” The court found that “[t]he Debtor further testified th...
...at 3.) As discussed supra, Mr. Plave performed no work for Debtor, (Tr. at 34), so he did not provide Debtor with reasonably equivalent value. Further, the record does not identify any assets given by Mr. Paul to the Debtor in exchange for the $45,000 transfer. 6 Section 726.105(i) states, “The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred.” Debtor filed for Chapter 7 bankruptcy on July 25, 1994, i.e., one year and three weeks after the transfer....
CopyPublished | Court of Appeals for the Eleventh Circuit | 2001 WL 336037
...made by the Debtors
to Manklow and Vincens between 1992 and 1995, pursuant to 11 U.S.C. §§ 547 and 548, and Fla. Stat. §
*
Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama, sitting by
designation.
726.105(1)(a)-(b)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...2
In this adversary action, the Debtors seek to avoid allegedly fraudulent
transfers made by the Debtors to Manklow and Vincens between 1992 and 1995,
pursuant to 11 U.S.C. §§ 547 and 548, and Fla. Stat. § 726.105(1)(a)-(b)....
CopyPublished | United States Bankruptcy Court, M.D. Florida
...62 In the Motion, Defendants request judgment in their favor on two counts of the Fraudulent Transfer Proceeding and all claims in the
56.29 Proceeding "as they relate to those transactions that are properly considered conversions under §
222.30, Fla. Stat., and not 'fraudulent transfers' pursuant to §
726.105, Fla....
...Accordingly, the Court cannot find that the subsequent transfers from the Brown Accounts constitute transfers of TBE assets that are not avoidable as a matter of law. B. Defendants bear the burden of proof under §
56.29. Plaintiffs seek judgment against Defendants under §§
56.29 and
726.105(1)(a) of the Florida Statutes, and claim that the transfers identified at trial were made with actual intent to hinder, delay, or defraud Regions. The claims under §
56.29 and §
726.105(1) entail the same analysis, so the Court considers them together....
...13, 2008. Mrs. McCuan was added to the Brown Accounts and the BB&T Account in September 2008, 87 within the one-year period. "Whether a defendant's actions are made or contrived to 'delay, hinder, or defraud' can be determined with reference to section 726.105(1)" of FUFTA, which "identifies what transactions are fraudulent and contains a non-inclusive list of 11 factors that are indicia of fraud." 88 The eleven factors or "badges of fraud" are: *843 (1) Whether the transfer or obligation was to an insider....
...er than those listed," a reviewing court "may take into account the circumstances surrounding the conveyance." 91 Generally, the same factors determine whether a transfer was made with intent to hinder, delay, or defraud creditors under §
56.29 and §
726.105, and the only distinction for purposes of this case is the burden of proof....
...Further, Debtor and Sugar testified that Debtor was in poor financial condition at the time of the transfers, and Defendants acknowledge that Debtor was insolvent no later than mid-2011. Based on these factors, the Court finds that the Trustee has established the insolvency prong of § 726.105(1)(b)....
...101 And Sugar testified at trial that Debtor transferred funds to McCuan Trust in consideration of McCuan Trust's payments on a line of credit, but at a pre-trial deposition he had testified that the transfer was only a "temporary disbursement." 102 The evidence shows that the transfers were constructively fraudulent under § 726.105(1)(b) of the Florida Statutes....
...,
677 So. 2d 1322 , 1324 (Fla. 4th DCA 1996). RREF SNV-FL SSL, LLC v. Shamrock Storage, LLC ,
178 So. 3d 90 , 92 (Fla. 1st DCA 2015). Doc. No. 266, ¶ 17. Doc. No. 266, ¶¶ 13, 14. Kearney , 712 F. App'x at 911-12 (citations omitted.). Fla. Stat. §
726.105 (2)....
...Kearney ,
2017 WL 942118 , at *10 (quoting Mejia v. Ruiz ,
985 So. 2d at 1113 ). Doc. No. 323, Sept. 11 Tr., pp. 34-39. Doc. No. 325, Sept. 12 Tr., pp. 159-60. Pls. Ex. 67. See Doc. No. 322, June 5 Tr., pp. 253-64. Pls. Ex. 8. See, e.g. , Pls. Ex. 7. Fla. Stat. §
726.105 (1)(b)....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 15 Fla. L. Weekly Fed. B 193, 2002 Bankr. LEXIS 549
...Debtor to secure a loan of its principal, McIntyre, and not the debt of the Debtor, in a leverage buy-out (LBO), rendered the Debtor insolvent. In Count II, the Debtor seeks the identical relief under a different theory, that is based on Fla. Stat. § 726.105 , and seeks a termination of its guaranty of the note and a declaration that the security interest claimed by the Bank is invalid and unenforceable....
CopyPublished | Florida 4th District Court of Appeal | 2006 WL 167829
...s civil conspiracy. After a non-jury trial, the court entered a final judgment dated April 21, 2004, determining that Red Reef was entitled to recover from the Willises and Giacomino under the first three counts: fraudulent transfers in violation of section
726.105(1)(a), Florida Statutes; fraudulent transfers in violation of section
726.105(1)(b), Florida Statutes; and fraudulent transfers in violation of section
726.106(1), Florida Statutes....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Nov 18, 2022
...We turn to the relevant statutory provisions of FUFTA,
which are modeled after the Uniform Fraudulent Transfer Act
(“UFTA”). See Amjad Munim, M.D., P.A. v. Azar,
648 So. 2d 145,
152 (Fla. Dist. Ct. App. 1994). Florida Statute §
726.105(1), in rele-
vant part, states:
A transfer made ....
...(1) there was a creditor to be defrauded, (2) a debtor intending
fraud, and (3) a conveyance—i.e., a ‘transfer’—of property which
could have been applicable to the payment of the debt due.” Isaiah,
960 F.3d at 1302; accord §
726.105(1)(a)....
...debtor were unreasonably small in relation to the . . . transaction”
or “[i]ntended to incur, or believed or reasonably should have be-
lieved that he or she would incur, debts beyond his or her ability to
pay as they became due.” Fla. Stat. §
726.105(1)(b).
Without FUFTA’s specific remedy provision in section
726.108, it would appear that SEPH could obtain an award of puni-
tive damages against Neverve if the factfinder found Neverve liable
for actual or constructive fraud under section
726.105(1)....
