CopyCited 210 times | Published | Court of Appeals for the Eleventh Circuit | 2005 U.S. App. LEXIS 7593, 44 Bankr. Ct. Dec. (CRR) 178, 2005 WL 1017990
...the Trustee seeks to recover have been commingled with funds that are not
recoverable due to the operation of Florida’s fraudulent transfer law. Under 11
U.S.C. § 544, a transfer may only be avoided within four years of the filing of
bankruptcy petition per Fla. Stat. § 726.110(1). What Defendants fail to recognize
is that the second clause of Fla. Stat. § 726.110(1), provides an exception to the
general limitations period, where the claimant could not reasonably have
discovered the relevant transfers....
CopyCited 45 times | Published | United States Bankruptcy Court, S.D. Florida. | 1999 Bankr. LEXIS 99
...it of either of debtor's alter egos). Nor were the Defendants harmed by the shift in filing dates, given that the transfers would nevertheless be avoidable under state fraudulent conveyance law, which has longer limitation periods. See Fla.Stat.Ann. § 726.110(1) (four year limitation period); see also Govaert v....
CopyCited 14 times | Published | United States Bankruptcy Court, S.D. Florida. | 1989 Bankr. LEXIS 714
...The Uniform Act provides that: "A cause of action with respect to a fraudulent transfer . . . under [this act] is extinguished unless action is brought . . . within 4 years after the transfer was made . . . or, if later, within 1 year after the transfer . . . was or could reasonably have been discovered by the claimant." § 726.110(1)....
CopyCited 9 times | Published | United States Bankruptcy Court, S.D. Florida. | 1998 Bankr. LEXIS 1756
...[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. Under Florida Statutes §
726.110, these claims are not time-barred because the statute of limitations for these statutes is four years from the date the transfer was made. See Fla.Stat. §
726.110 (1997)....
CopyCited 9 times | Published | United States Bankruptcy Court, M.D. Florida | 2001 Bankr. LEXIS 2019, 2001 WL 1906183
...The bankruptcy statute and the state statute are analogous "in form and substance," and may be analyzed contemporaneously. In re Venice-Oxford Associates Limited,
236 B.R. 820, 834 (Bankr.M.D.Fla.1999)(quoting In re United Energy Corp.,
944 F.2d 589, 594 (9th Cir.1991)). C. The limitations period. Section
726.110 of the Florida Statutes provides:
726.110....
...r potential fraudulent transfers to the Defendants from the Debtor." Pursuant to the Order, therefore, the Trustee acknowledges that she may only seek to avoid transfers that occurred within the four-year period between 1992 and 1996, as provided by § 726.110 of the Florida Statutes....
...sfer 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. Stat. §
726.110....
...ets no earlier than December of 1993. The fraudulent transfer action was filed in the Circuit Court for Pinellas County on November 17, 1994. Barbara Stewart asserts, therefore, that the action was commenced within the limitations period provided by § 726.110(1) because it was filed within one year of the time that she could reasonably have known of the transfers....
...Barbara Stewart discovered or reasonably could have discovered the transfers from the Debtor's Schwab accounts no earlier that January of 1994. The fraudulent transfer action was filed in the Circuit Court for Pinellas County on November 17, 1994. The action was filed within the one-year limitations period set forth in § 726.110(1) of the Florida Statutes....
...Stewart in February of 1988, and that he transferred additional assets with a value 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)....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2003 WL 22658104
...The cross motions were heard in October 2001. Thereafter, appellees filed a supplemental motion for summary judgment alleging that all of the claims raised by Paragon were based on section
726.106(2) and barred by the statute of limitations contained in section
726.110(3), Florida Statutes (2001)....
...726.106(2) were met. Paragon filed motions for reconsideration and clarification, both of which were denied, and summary judgment was thereupon entered, resulting in this appeal. I. Section
726.106(2) transfers are extinguished by the limitations in section
726.110(3)....
...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; or (3) Under 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....
...*1236 See Kraft Gen. Foods, Inc. v. Rosenblum,
635 So.2d 106, 109 (Fla. 4th DCA 1994); Farancz v. St. Mary's Hosp., Inc.,
585 So.2d 1151 (Fla. 4th DCA 1991); see also Rakusin, Florida Creditors Rights Manual, Vol. 2, at 259 (2001) (Florida Statutes section
726.110(3) does not provide a savings provision if the creditor fails to discover the preferential transfer, as does section
726.110(1)). Here, the legislature specifically provided a savings clause in section
726.110(1) and omitted it in section
726.110(3)....
...Paragon cites to Segal v. Rhumbline International, Inc.,
688 So.2d 397 (Fla. 4th DCA 1997), for the proposition that this court has held that the one-year period runs from discovery of the transfer. In Segal, we were discussing the limitation contained in section
726.110(1), not
726.110(3), because we referred to the Segals 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....
...Section
726.106(1) transfers were not part of issues raised at summary judgment. Paragon also argues that the court failed to consider its allegations of preferential profit distributions under section
726.106(1), which has a four-year limitation under section
726.110(2)....
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
...1348, 1356 ,
89 L.Ed.2d 538 (1986). . In re Stewart,
280 B.R. 268, 273 (Bankr.M.D.Fla.2001). See also In re Toy King Distributors, Inc.,
256 B.R. 1, 126-27 (Bankr.M.D.Fla.2000). . Compare 11 U.S.C. § 548 (a)(1) (providing for two-year look-back period) with Fla. Stat. §
726.110 (2014) (providing for four-year look-back period)....
CopyCited 7 times | Published | United States Bankruptcy Court, M.D. Florida | 21 Fla. L. Weekly Fed. B 40, 2007 Bankr. LEXIS 3537, 2007 WL 3051264
...h as the Florida Home. Statute of Limitations. Lastly, the defendants assert that the plaintiff's cannot avoid the defendants' purchase of the Florida Home as a fraudulent transfer because the applicable four year statute of limitations has expired. Section 726.110 of the Florida Statutes provides that a "cause of action with respect to a fraudulent transfer" asserted under Chapter 726 is extinguished unless the action is brought within four years after the transfer or, if later, within one year after the transfer was or could reasonably have been discovered....
...Section 522( o ) of the Bankruptcy Code does not limit the debtor's right to claim his Florida Home exempt as tenants by the entireties property pursuant to Bankruptcy Code Section 522(b)(3)(B). The motion is denied insofar as material factual issues preclude finding that the statute of limitations of Section 726.110 of the Florida Statutes bars the plaintiff's from pursuing any fraudulent transfer into the Florida Home....
CopyCited 7 times | Published | United States Bankruptcy Court, S.D. Florida. | 2012 Bankr. LEXIS 3223
...Testimony [ECF No. 266]. By separate order the Court dismissed the intervenors from this action. Thus, the Court has not considered the response filed by Charles and Harley Kane. . While the "look back" period is longer under Florida law, Fla. Stat. § 726.110 , all the Transfers occurred within 2 years of the petition date and so are within the relevant periods under both the Bankruptcy Code and Florida law....
CopyCited 7 times | Published | District Court, M.D. Florida | 2015 U.S. Dist. LEXIS 15146, 2015 WL 518826
...actual intent to defraud under §
726.105(l)(a) without the need to consider the badges of fraud.” Id. at 1201. b. Statute of Limitations A four year statute of limitations applies to FUFTA claims, subject to a one year savings period. Fla. Stat. §
726.110 (1) (claims barred unless asserted 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”)....
...The Receiver was appointed January 21, 2009. This case was not filed until three years later, on February 9, 2012. The Bank essentially, and convincingly, argues that there was adequate time for any transfer to "reasonably have been discovered by the claimant.” Fla. Stat. § 726.110 ....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 4820, 2016 WL 1238265
...tors.” FUFTA provides that a claim based on such allegations “is extinguished” unless brought “within 4 years after the transfer was made ... or, if later, within 1 year after the transfer ... was or could reasonably have been discovered.” § 726.110(1)....
....108 in an amount representing the fair market value of the notes at the time they were assigned. The trial court heard this claim without a jury. The Levin Parties moved for an involuntary dismissal arguing that F/R’s claim was extinguished under section 726.110(1) because it was not brought within four years of the assignments or one year of the date the assignments were discovered....
...fraudulent nature” of the transfers, by which it. meant the facts showing that the assignments were made with actual intent to hinder, delay, or defraud creditors. F/R further asserted that the Levin Parties were equitably estopped from asserting section 726.110(1) as a bar to its claim because of the alleged false testimony regarding the reasons for the assignment and the delay in producing accounting documents. In a written order, denying the Levin Parties’ motion for involuntary dismissal, the trial court agreed with F/R that the one-year savings clause in section 726.110(1) was not triggered until F/R discovered or should have discovered the fraudulent nature of the assignments. It did not reach F/R’s alternative argument that the Levin Parties were equitably es-topped from asserting the protections of section 726.110(1), The trial court thereafter entered a partial final judgment finding that the assignments were made with actual intent to hinder, delay, or defraud creditors and declared those transfers void under FUFTA. This timely appeal followed. II. We first address whether the one-year savings clause in section 726.110(1) is triggered by discovery of the transfer or by discovery of the facts showing that transfer to have been fraudulent....
...e third-party transferee, including the avoidance of the transfer, attachment against the asset transferred, injunctive relief, appointment of a receiver, and in the case of a judgment creditor, execution upon the transferred properties. §
726.109. Section
726.110 provides fixed times in which claims based on these three categories of fraudulent transfers must be brought or are lost....
...726.106(1) [transfers made without reasonably equivalent value], within 4 years after the transfer was made or the obligation was incurred; or (3) Under s.
726.106(2) [transfers to insiders for antecedent debt], within 1 year after’ the transfer was made or the obligation was incurred. §
726.110. Causes of action for actual fraudulent transfers are the only actions under FUFTA that have the benefit of a one-year savings clause based on the date “the transfer ... was or reasonably could have been discovered.” ■§
726.110(1)....
...nings in it — that we resort to additional aids to construction. See Blanton v. City of Pinellas Park,
887 So.2d 1224, 1230 (Fla. 2004) (citing Palm Beach Cty. Canvassing Bd. v. Harris,
772 So.2d 1273, 1282 (Fla. 2000)). *505 The savings clause in section
726.110(1) is not ambiguous....
...The one-year period runs from the date the transfer was discovered or could reasonably have been discovered. As defined by FUFTA, a transfer is- the disposition of an asset. See §
726.102(14) (defining a transfer as “every mode ... of disposing of or parting with an asset”). Section
726.110(l)’s savings clause thus unambiguously ties the beginning of the one-year period to the discovery of the disposition of the asset— in this case, F/R’s January 30, 2012, discovery of the assignments of the notes from National Auto Service to National Auto Properties....
...ransfer instead of the transfer itself, the trial court relied, as F/R dbes on appeal, on the Hawaii Supreme Court’s decision in Schmidt and the Washington Supreme Court’s decision in Frei-tag. Those cases interpreted state statutes identical to section 726.110(1). Taken together, they identify two core reasons for holding that the savings clause is triggered by discovery of the fraudulent nature of the transfer: (1) because the introductory clause of section 726.110 refers to “[a] cause of action with respect to a fraudulent transfer,” the term “transfer” in subsection (1) must refer to facts showing that the transfer was fraudulent; and (2) because the purpose of the Uniform Act is to pr...
...See Schmidt, 319 P.3d at 425-27 ; Freitag, 947 P.2d at 1189, 1190 . We conclude that neither reason provides a persuasive basis for departing from the statute’s plain language. As to the first rationale, the argument is that because the introductory clause of section 726.110 states that “[a] cause of action with respect to a fraudulent transfer ... is extinguished unless” timely commenced, the term “transfer” in the savings clause refers to the ‘fraudulent transfer” described in the introductory clause. For that reason, the logic goes, the term “transfer” in section 726.110(1) must incorporate the facts that made the transfer fraudulent....
...aused by phenoxy herbicides while serving in the armed forces). The fact that the legislature knew how to link the . commencement of a time period to the discovery of the facts substantiating a cause of action and elected not fo use that language in section 726.110(1) counsels against interpreting the savings clause as running from the discovery of the fraudulent nature, of the transfer rather than from the transfer itself....
...See Rollins,
761 So.2d at 298 (“[T]he same meaning should be given to the same term within subsections of the same statute.” (citing WFTV, Inc. v. Wilken,
675 So.2d 674, 678 (Fla. 4th DCA 1996))). Every other time the term “transfer” is used in section
726.110, it unambiguously carries the statutorily defined meaning of the disposition of an asset....
...It would make no sense for these subsections to say that a cause of action is extinguished unless brought within four years or one year of “the fraudulent nature of the transfer”‘or within-one year or four years of the “facts underlying the cause of action,” Although the savings clause is different from the rest of section 726.110 in that it is the only provision of the statute that runs from the discovery of an event, the legislature nonetheless chose to use the same term,“transfer” as the trigger....
...terpreted favorably to the claimant because the purpose of FUFTA is to deter fraud and provide a remedy to creditors. This appeal to the legislature’s assumed purpose as an aid -to statutory construction is irrelevant, however, because the text of section 726.110(1) is unambiguous....
...he clear text of the savings clause. 319 P.3d at 427 ; see also Maddox v. State,
923 So.2d 442, 448 (Fla. 2006) (holding that a “literal interpretation should not be adhered to when it would lead to absurd results”). We cannot agree. The text of section
726.110 in general evinces a purpose to provide a time certain by which both ■ transferors and transferees of property will be free of claims seeking to unwind a transfer and undo their respective expectations with respect to the property. The text of section
726.110(1) in particular balances that purpose of finality against the remedial purposes of FUFTA by providing a creditor whose claim would otherwise be extinguished for not bringing an action within four years with a period of one year from...
...It has long been recognized that the absurdity doctrine ‘is to be applied to override the literal terms of a statute only under rare and exceptional circumstances.’” (quoting Crooks v. Harrelson,
282 U.S. 55, 60 ,
51 S.Ct. 49 ,
75 L.Ed. 156 (1930))). Because the unambiguous text of section
726.110(1) provides that the one-year period begins on the date the claimant discovers or reasonably could have discovered the transfer that is the subject of its cause of action, F/R’s cause of action in this case — which was brought mor...
...F/R asserts that if we determine that its claim was untimely, as we have, we should remand for the trial court to determine whether the Levin Parties’ alleged concealment of the fraudulent nature of the assignments of the notes renders them equitably estopped from asserting the protections of
726.110(1). It relies on In re Hill,
332 B.R. 835, 843 (Bankr.M.D.Fla. 2005) (Hill II), a decision of a federal bankruptcy court that held that section
726.110(1) is a statute of limitations to which equitable doctrines like estoppel apply, as distinguished from a statute of repose to which, the Hill II court assumed, such doctrines do not apply. F/R’s argument thus presents two threshold matters: (1) whether section
726.110(1) is a statute of limitations or a statute of repose; and (2) if a statute of repose, whether its application is subject to a claimant’s assertion of equitable estoppel. These are pure questions of law for which our review is de novo. Pino v. Bank of N.Y,
121 So.3d 23, 30-31 (Fla.2013). We conclude that section
726.110(1) is a statute of repose that is not subject to an assertion of equitable estoppel as a matter of law, which renders any additional remand for fact-finding on the subject unnecessary. A. We turn first to the categorization of section
726.110(1) as either a statute of limitations or a statute of repose....
...3d DCA 1999) (holding that statute of repose was not subject to toiling provision applicable to statute of limitations because, among other reasons, it would “ignore[] fundamental distinctions between ordinary statutes of limitations and statutes of repose”). On its face, section 726.110 is a repose statute, not a limitations statute. The introductory clause of the statute provides that “[a] cause of action with respect to a fraudulent transfer ... is extinguished unless action is brought” within the time periods provided in subsections (1) through (3). § 726.110 (emphasis added)....
...own terms, the provision does not just procedurally bar an untimely claim, it substantively ‘extinguish[es]’ the cause of action”). 9 Notwithstanding this statutory text, the bankruptcy court in Hill II held that the one-year savings clause of section 726.110(1) rendered that subsection a statute of limitations....
...from the point when the cause of action accrues. Id. From that premise, the bankruptcy court reasoned that “[i]n providing that an action is extinguished unless brought within one year after the transfer was or could reasonably have been discovered, § 726.110(1) does not cut off the right of action after a specified time measured from the date of the transfer, but establishes a period within which an action shall be brought.” Id.; see also Harris Bank, N.A....
...684, 698 (Bankr.N.D.Ill.2008) (interpreting identical provision of Uniform Act to similar effect). In our view, Hill IPs conclusion that the savings clause creates a statute of limitations incorrectly reads that clause in isolation from the balance of section 726.110(1)....
...2050 ,
124 L.Ed.2d 138 (1993))). When the statute is read in its entirety, it is clear that the savings clause does not create a separate, one-year statute of limitations, but rather creates a limited exception to the four-year period of the statute of repose. Section
726.110(1) does not provide that any action based on an alleged actual fraudulent transfer shall be brought within one year, with the time running 'from the date the transfer’was or reasonably could have been discbveréd, as a statute of limitations would....
...The statute does not require any actual injury or discovery of an actual injury by the plaintiff, it operates to extinguish a claim based on the defendant’s action, the trans *512 fer. The savings clause is part of a single statute of repose. It is significant that the text and structure of section 726.110(1) contrasts markedly with the text of statutory sections in which the legislature has created separate provisions governing both limitations and repose....
...ter the time periods prescribed by section
95.11(4)(e)). Other combined limitations/repose statutes are structured similarly. See, e.g., §§
95.031(2)(a), .11(3)(j) (actions founded on fraud), .11(4)(b) (medical malpractice). Unlike these statutes, section
726.110(1) does not provide for separate periods of limitations and repose. It extinguishes all causes of action as to which suit is not commenced within four years of the transfer and provides a carve-out for a limited class of claims brought later. Section
726.110(1) is a statute of repose in its entirety. B. Having concluded that section
726.110(1) is a statute of repose, we must consider whether it is nonetheless subject to F/R’s assertion of equitable estoppel based on its allegation that Mr. Levin concealed the fraudulent nature of the transfer, thereby delaying its commencement of suit. Based on the long-standing recognition that statutes of repose create an absolute bar to untimely actions and the specific language of section
726.110(1), we hold that it is not subject to an assertion of equitable estop-pel....
...3d DCA 2005) (holding that equitable doctrine of contra non valentem did not apply to medical malpractice statute of repose providing seven-year time limit even where the cause of action was not discovered due to fraud or concealment). Moreover, the text of section 726.110(1) does not contemplate that equitable doctrines may supply an exception to the absolute bar of the statute....
...suit are extended when “fraud, concealment, or intentional misrepresentation” prevent discovery of the injury). Because statutes of repose are understood by. the law to create an absolute bar to an *514 untimely claim and nothing in the text of section 726.110(1) suggests 'a different result in -this case; the statute is not subject to a claimant’s assertion of equitable estop-pel. • ' IV. In sum, the one-year period created by the savings clause in section 726.110(1) begins on the date the transfer is discovered or could reasonably have been discovered, not on the date the fraudulent nature of the transfer was or could' reasonably have been discovered. Further, section 726.110(1) is a statute of repose that cannot be avoided by a plaintiffs contention that a defendant is equitably estopped from asserting' it as a defense. Because F/R’s action was not brought within four years of the assignments of the promissory notes by National Auto Service to National Auto Properties, -its claims under FUFTA are barred by section 726.110(1)....
...We áre thus not required to ’ reach this issue here, and we do not consider whether section
56.29 could have provided an alternative source of relief. . We note that at least one legislature implementing the Uniform Act has done that. The Arizona analog to section
726.110 explicitly ties the running of the one-year period to the discovery of the fraudulent nature of the transfer instead of the transfer itself....
...tion does not begin to run until the plaintiff knows or iñ the exercise of due diligence should know of the *507 basis for the claim. See Butler Univ. v. Bahssin,
892 So.2d 1087, 1091-92 (Fla. 2d DCA 2004). As discussed in part III of this opinion, section
726.110(1) is a statute of repose, not a statute of limitations, so the extent to which F/R’s assertion is' relevant is not clear. In any event, our supreme court has held that the delayed discovery doctrine is a creature of statute and generally does not apply when a statute does not provide for it. Davis v. Monahan,
832 So.2d 708, 710-12 (Fla.2002). Section
726.110 does not provide that the one-year period begins \ykh the discovery of the basis of the claim....
...Even if the trial court's holding did further uniformity in interpretation of the Uniform Act, however, furtherance of that broad purpose — like the appeal to the remedial purposes of the statute— cannot contravene the unambiguous language the legislature actually adopted. . Certain Florida 'decisions have called section 726.110 a statute of limitations....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1993 WL 80630
...Appellant testified in deposition that he first became aware of the allegedly fraudulent transfer in late 1987. Appellee filed a motion for summary judgment, asserting that Appellant's claim was barred by the statute of limitations. The trial judge granted the motion based upon retroactive application of FUFTA. Section 726.110, Florida Statutes (1991) provides: A cause of action with respect to a fraudulent transfer or obligation under ss....
...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; or (3) Under s.
726.106(2), within 1 year after the transfer was made or the obligation incurred. By its own terms, section
726.110 applies only to claims arising under FUFTA....
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
...atute 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....
...The United States argues that the transfer at issue in the Complaint, the payment of federal taxes by the Debtor on behalf of its principals, occurred no later than October 20, 2006. This adversary proceeding was filed March 29, 2011, more than four years after the transfer, outside the period proscribed by Florida Statutes section 726.110....
...ly brought pursuant to section 546. [3] It is undisputed that the tax payment occurred no later than October 20, 2006 and the Debtor filed its voluntary petition on November 13, 2008. The four-year statute of limitations provided by Florida Statutes section 726.110 had not expired as of the petition date....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2012 WL 4746471, 2012 Fla. App. LEXIS 16833
...Liles,
505 So.2d 598, 601 (Fla. 1st DCA 1987). The question before the learned trial judge, and now before us, is whether it is clear from the complaint that the fraudulent transfer could, as a matter of law, “reasonably have been discovered by the claimant,” §
726.110(1), Fla....
...For purposes of decision, we must assume the truth of all well-pleaded allegations in the second amended complaint. 3 Arguing it was clear from the allegations in the complaint that appellant’s cause of action was barred with respect to the allegedly fraudulent transfer under section 726.110(1), Florida Statutes (2002), VLFI moved to dismiss....
...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. §
726.110(1), Fla....
...matter of law, mean that she could reasonably have discovered Mr. Taylor’s transfer to VLFI at the time the deeds were recorded. We have found no Florida case holding that merely recording a deed that accomplishes a fraudulent transfer causes the § 726.110 limitations period to begin to run....
CopyCited 4 times | Published | District Court, M.D. Florida | 2013 WL 247004, 2013 U.S. Dist. LEXIS 8972
...erial fact. See doc. 59. First, Cloud asserts her first affirmative defense, that the Receiver’s claims arising from certain early transfers are 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 ......
CopyCited 4 times | Published | United States Bankruptcy Court, S.D. Florida.
...First, Defendant maintained *312 that application of §
726.101, Fla.Stat. (1993) to transfers occurring in 1988 and 1989, represented an unconstitutional retroactive application of the statute. [1] Second, Defendant contended that the four year statute of limitations set forth in Fla.Stat. §
726.110 barred the Trustee from bringing an action for any claims relating to fraudulent transfers prior to 1990....
...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. Defendant argues that the four-year statute of limitations set forth in 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...
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
...f Law on September 30, 2003. Defendant appealed. The Findings of Fact and Conclusions of Law were affirmed in part and reversed in part. The District Court held it was unclear whether this Court applied the appropriate standard under Florida Statute § 726.110(1), and it remanded for a determination of whether the action relating to each transfer was filed within a year of when each individual transfer was, or reasonably could have been, discovered....
...n. 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 . . . was or could reasonably have been discovered" by the claimant. [3] (emphasis added) *840 The second clause of §
726.110(1) clearly provides an exception to the four (4) year general limitations period of the statute....
...ssory Notes until deposing Hill's accountant on February 7, 2000. Accordingly, the Court finds that the Trustee is entitled to avoid the transfers of the Gulfstream Warehouse Condos, the Boynton Beach House and Promissory Notes under Florida Statute § 726.110(1), as the causes of action were clearly filed within one year of when the transfers were or reasonably could have been discovered....
...oughty should have been bringing fraudulent transfer actions against it while the stay issued by the California court, as to all then-existing and future collection proceedings, was in effect. MTLC argues that equitable doctrines are inapplicable to § 726.110(1) because it is a statute of repose. However, Trustee asserts that under the test applied in Florida for distinguishing statutes of repose from statutes of limitation, § 726.110(1) is a statute of limitation: In contrast to a statute of limitation, a statute of repose precludes a right of action after a specified time which is measured from the incident of malpractice, sale of a product, or completion of improveme...
...e point in time when the cause of action accrued. Univ. of Miami v. Bogorff,
583 So.2d 1000, 1003 (Fla.1991). In providing that an action is extinguished unless brought within one year after the transfer was or could reasonably have been discovered, §
726.110(1) does not cut off the right of action after a specified time measured from the date of the transfer, but establishes a period within which an action shall be brought. Under Florida law, §
726.110(1) is therefore a statute of limitation, as Trustee asserts, rather than a statute of repose and equitable doctrines are applicable....
...Morsani,
790 So.2d 1071, 1078 (Fla.2001). [7] Florida Statute §
726.111, specifically provides that, unless displaced by the provisions of §
726.101-112, the principles of equity including estoppel supplement those provisions. Thus, the Trustee argues that while §
726.110(1) sets forth a limitations period, it does not expressly preclude the application of estoppel and therefore cannot be interpreted as displacing it. See, e.g., Fla. Dept. of Health v. S.A.P.,
835 So.2d 1091, 1098 (Fla.2002). The Court agrees that Section
726.110(1) does not preclude the application of estoppel and must therefore determine whether the doctrine of estoppel can be properly applied in the instant case....
...Thus, while proceedings supplementary in general may be commenced during the twenty year life of a judgment, §
56.29 does not extend or create new the statute of limitations for a fraudulent transfer to twenty years. The applicable limitation for fraudulent transfer actions is contained in Fla. Stat. §
726.110....
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida.
...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. Stat. §
726.110 (l)-(2)....
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
...Brandt argues that fraudulent transfers occurring more than one year prior to the commencement of a bankruptcy case may not be avoided under Section 548 of the Bankruptcy Code, 11 U.S.C. § 548. Moreover, Brandt argues that a four-year statute of limitations applies to actions brought under Florida law, pursuant to Fla.Stat. § 726.110....
...y law. Thus, contrary to Brandt's assertion, this cause of action is grounded upon Section 544 of the Bankruptcy Code because there is no claim or cause of action independent of that federal statute. Section 546 of the Bankruptcy Code, not Fla.Stat. § 726.110, sets forth the applicable statute of limitations for Section 544 actions....
...as of the commencement of the bankruptcy case, then the applicable statute of limitations is contained in 11 U.S.C. § 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 ....
CopyCited 2 times | Published | District Court, M.D. Florida | 2017 WL 1161305, 2017 U.S. Dist. LEXIS 46146
...Fla. Oct. 4, 2012). .A cause of action regarding a fraudulent transfer is extinguished unless brought within 4 years after the transfer was made, or if later, within 1 year after the transfer was or could reasonably have been discovered. Fla. Stat. § 726.110 , ....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 7 Fla. L. Weekly Fed. B 1174, 1993 Bankr. LEXIS 1015, 24 Bankr. Ct. Dec. (CRR) 695, 1993 WL 260734
...t. Count IV involves the same factual allegations, but is based upon §
726.103 of the Florida Statutes. Winick argues that the cause of action contained in Count IV is barred by the statute of limitations. The statute of limitations is contained in §
726.110, and provides that an action under §
726.106 must be brought within "four years after the transfer was made or the obligation was incurred." Although the obligation of the Debtor to Winick was incurred well outside the four year period, the transfer, i.e....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 2013 WL 3943279, 2013 Bankr. LEXIS 3091
...The Plaintiff commenced this action by filing a Complaint to avoid and recover a number of allegedly fraudulent transfers made by the Debtor, Lydia Cladek, Inc., to the Defendant, Nathan D. Bozarth, beginning in 2003 and ending in 2010. Pursuant to 11 U.S.C. § 546 (a) and Fla. Stat. § 726.110 , the “reach back” period for fraudulent transfers under § 544 and Florida law is generally four years prior to the petition date....
...The limitations period Section 548(a)(1) of the Bankruptcy Code provides that a trustee may avoid any fraudulent transfer of an interest of the debtor in property that was made within two years before the date of the filing of the petition. 11 U.S.C. § 548 (a)(1). Section 726.110 of the Florida Statutes provides that a cause of action with respect to a fraudulent transfer is extinguished unless an action is brought within four years after the transfer was made. Fla. Stat. § 726.110 . If a fraudulent transfer claim had not been extinguished under Fla. Stat. § 726.110 as of the date that a bankruptcy petition is filed, § 546 of the Bankruptcy Code generally extends the time that a trustee may bring the action....
...This means the relevant reach back period begins on the petition date and encompasses all transfers within the four years prior, per the FUFTA statute of limitations.” In re Pearlman,
460 B.R. 306, 315 (Bankr.M.D.Fla.2011)(Emphasis supplied). The combined effect of § 544, § 546(a), and §
726.110 is to allow the Trustee a period of two years after the petition is filed “to bring an action to avoid fraudulent transfers occurring four years prior to the petition date.” In re Amelung,
2010 WL 1417742 , at 8. In this case, an involuntary bankruptcy petition was filed against the Debt- or on April 2, 2010, and the Debtor filed a voluntary Chapter 11 petition on April 5, 2010. Under §
726.110 and § 546(a), therefore, the Plaintiff may seek to avoid transfers that occurred within the four-year period prior to April 2, 2010, or between April 2, 2006, and the petition date....
...occurred for the two and one-half year period between March 1, 2007, and November 23, 2009, when the Defendant made a “deposit” to the Debtor in the amount of $150,000.00. (Complaint, Exhibit A). Pursuant to § 546(a) of the Bankruptcy Code and § 726.110 of the Florida Statutes, the “reach back” period for fraudu *561 lent transfers under § 544 and Florida law is generally four years prior to the petition date....
...Conclusion The Plaintiff commenced this action by filing a Complaint to avoid and recover a number of allegedly fraudulent transfers made by the Debtor to the Defendant beginning in 2003 and ending in 2010. Pursuant to 11 U.S.C. § 546 (a) and Fla. Stat. § 726.110 , the “reach back” period for fraudulent transfers under § 544 and Florida law is generally four years prior to the petition date....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida
...Rackley ,
986 F.2d 1357 , 1361 (10th Cir. 1993).
871 F.Supp. 1404 (D. Kan. 1994). Id. at 1409 . Doc. No. 494, p. 10. Fla. Stat. §
726.104 . 11 U.S.C. § 548 (d)(2)(A). In re Evergreen Sec., Ltd. ,
319 B.R. 245 , 254 (Bankr. M.D. Fla. 2003). Fla. Stat. §
726.110 ....
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
...[23] In re Chase & Sanborn Corp.,
813 F.2d at 1180 (11th Cir.1987). [24] In re Bankest Capital Corp.,
374 B.R. 333, 338 (Bankr.S.D.Fla.2007). [25] Doc. No. 149, Ex. G at 2. [26] Doc. No. 149, Ex. H at 1. [27] Doc. No. 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....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 1150
...The former husband’s blanket argument in his motion, with regards to the four-year statute of limitations for fraudulent conveyance, was premised on the date of the initial final judgment in 2010 (which was appealed and the cause was remanded back to the trial court for further determinations). See § 726.110, Fla....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 2006 WL 3913758
...r 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. *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....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2012 WL 5349381, 2012 Fla. App. LEXIS 18963
...For purposes of determining when a Fraudulent Transfer Act claim accrues, we are guided by the applicable statute of limitations. The limitations period for claims arising out of the Fraudulent Transfer Act expires “within 4 years after the transfer was made or the obligation was incurred.” § 726.110(2), Fla....
CopyCited 1 times | Published | District Court, S.D. Florida | 2014 WL 1745361
...im.” Fla. Stat. §
726.108 (l)(a). 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. Stat. §
726.110 (1)....
...ter 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. Stat. §
726.110 ....
CopyCited 1 times | Published | District Court, M.D. Florida | 75 A.F.T.R.2d (RIA) 1660, 1995 U.S. Dist. LEXIS 3234
...United States, unless and except to the extent any of the defenses under Fla.Stat.Ann. §
726.109 apply. The Hysells assert that the United States is time barred from asserting a claim under the Uniform Fraudulent Conveyance Act. Under Fla.Stat.Ann. §
726.110(1), the United States had four years to bring its claim for relief....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Mar 9, 2022
ida’s UFTA is four years. See Fla. Stat. §
726.110. 21 Florida’s UFTA 19 The bust-out
CopyPublished | United States Bankruptcy Court, M.D. Florida
...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....
CopyPublished | Florida 2nd District Court of Appeal
...t a permissible basis to
overlook or rewrite a rule's unambiguous language. See Nat'l Auto Serv.,
192 So. 3d at
507 ("This appeal to the legislature's assumed purpose as an aid to statutory
construction is irrelevant, however, because the text of section
726.110(1) is
unambiguous.")....
CopyPublished | Florida 3rd District Court of Appeal
...Turkish to avoid payment of the March 2017
Final Judgment in violation of the Uniform Fraudulent Transfers Act, chapter
726, Florida Statutes.
Mrs. Turkish moved to dismiss, arguing that the Judgment Creditor’s
claims are extinguished by section 726.110, which contains certain time
limits for bringing a fraudulent transfer action.2 The trial court agreed and
dismissed. The Judgment Creditor timely appealed.
1
Ada Turkish Trask 2005 Trust Number One u/d/a January 27, 2005, Paul
M. Cowan, successor trustee.
2
The time limits set forth in section 726.110 apply to proceedings
supplementary....
...Nationstar Mortg., LLC v. Sunderman,
201 So. 3d 139,
140 (Fla. 3d DCA 2015). Moreover, we review the trial court’s order granting
Ms. Turkish’s motion to dismiss de novo, and we limit our review to the four
corners of the Complaint. See id.
Section
726.110, Florida Statutes (2021), sets forth the following
relevant time limits for causes of action brought pursuant to the Uniform
Fraudulent Transfers Act: 3
A cause of action with respect to a fraudulent
transfer or obligation under ss....
...See § 726.10(1)(“A transfer made . . . by a debtor is fraudulent .
. . if the debtor made the transfer . . . (a) With actual intent to hinder, delay,
or defraud any creditor of the debtor . . . .”). However, the result here is the
same if the time limit in section 726.110(2) applies.
3
Here, the cause of action is based on an alleged fraudulent transfer....
...Turkish’s argument that the action must have been
brought within one year of discovery of the transfer, regardless of when the
transfer was made. Under the plain language of the statute, the one-year
savings clause only applies “if later” than four years after the transfer was
made. See § 726.110(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2012 WL 1859417, 2012 Fla. App. LEXIS 8135
...Almand & Assocs.,
780 So.2d 45, 53 (Fla.2001); (3) execution on the residential parcel is precluded by operation of Florida’s constitutional 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...
CopyPublished | Florida 4th District Court of Appeal | 2017 WL 2814886, 2017 Fla. App. LEXIS 9421
Per Curiam. We affirm the dismissal of appellant’s complaint against appellee, as the action was barred by the statute of limitations. § 726.110, Fla....
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 2017 Bankr. LEXIS 1888, 64 Bankr. Ct. Dec. (CRR) 101
...Moreover, the Trustee can also recover the Transfers that occurred in 2009 that are outside of the four years prior to the Petition Date because the Trustee brought the Complaint within one year after the transfers could reasonably have been discovered by the Trustee. See Fla. Stat. Ann. § 726.110 (1)....
CopyPublished | Florida 3rd District Court of Appeal | 2003 Fla. App. LEXIS 11076, 2003 WL 21697321
...s to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent. Under Section
726.110(3), Florida Statutes(“Extinguishment of cause of action”) a claim under Section
726.106(2) is extinguished unless brought within one year after the transfer was made....
CopyPublished | District Court of Appeal of Florida
Analysis The creditor argues that section
726.110, Florida Statutes (2018), is inapplicable to
CopyPublished | Florida 3rd District Court of Appeal
...3d DCA 2017) (“[T]he doctrine
of res judicata not only bars issues that were raised, but it also precludes
consideration of issues that could have been raised but were not raised in
the first case.”); Nat’l Auto Serv. Ctrs., Inc. v. F/R 550, LLC,
192 So. 3d 498,
512 (Fla. 2d DCA 2016) (“[S]ection
726.110(1) does not provide for separate
periods of limitations and repose. It extinguishes all causes of action as to
which suit is not commenced within four years of the transfer and provides a
carve-out for a limited class of claims brought later. Section
726.110(1) is a
statute of repose in its entirety. . . . Based on the long-standing recognition
that statutes of repose create an absolute bar to untimely actions and the
specific language of section
726.110(1), we hold that it is not subject to an
assertion of equitable estoppel.”).
2
CopyPublished | Florida 4th District Court of Appeal
...Fraudulent Transfer Act (chapter 726, Florida Statutes). We hold that
appellants’ fraudulent transfer claims brought under the ambit of section
56.29 were subject to the time limitations of chapter 726, so they were
time barred by the application of section
726.110, Florida Statutes.
Background and the Alleged Fraudulent Transfers 1
1 This statement of facts is limited to the facts relevant to the statute of limitations
issue, the ground upon which the trial court entered summary judgment....
...3d
1068, 1071 (Fla. 4th DCA 2010). Likewise, a trial court’s interpretation of
a statute is reviewed de novo. Parker v. Parker,
185 So. 3d 616, 618 (Fla.
4th DCA 2016).
The Trial Court Properly Applied Section
56.29(9) and the Statute
of Repose in Section
726.110, Florida Statutes
A. The Plaintiffs’ Arguments
On appeal, the Plaintiffs argue that the trial court erred in ruling that
their fraudulent transfer claims could be pursued only under section
56.29(9) and were thus subject to the limitations periods in section
726.110....
...case number assigned to the original complaint filed by the
judgment creditor . . . .
§
56.29(9), Fla. Stat. (2018) (emphasis added).
Chapter 726 is Florida’s enactment of the Uniform Fraudulent Transfer
Act. See §
726.101, Fla. Stat. (2018). Section
726.110, Florida Statutes,
sets forth the following limitations periods for fraudulent transfer claims
brought under chapter 726:
8
A cause of action with respect to a fraudulent transfer or
obligation under ss....
...(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; or
(3) Under s.
726.106(2), within 1 year after the transfer was
made or the obligation was incurred.
§
726.110(1)–(3), Fla....
... (Emphasis omitted).
In sum, as the trial court ruled, because the Plaintiffs’ fraudulent
transfer claims were required to be pursued under section
56.29(9), the
13
Plaintiffs’ claims were subject to section
726.110’s statute of repose and
were time barred.
The Plaintiffs Were Not Denied Due Process in this Case
The Plaintiffs also argue that the trial court unconstitutionally denied
them due process by retroactively applying the 2016 statutory amendment
to hold their claims time barred....
