Oftentimes, fraudulently transferred funds end up being invested in the debtor or subsequent transferee’s personal residence under the mistaken belief that creditors cannot reach it if it is the transferee’s homestead. However, it is well-settled law that the homestead and exemption laws of Texas were never intended to be, and cannot be, the haven of wrongfully obtained money or properties.
Therefore, “funds wrongfully diverted from a corporation and subsequently diverted into property ordinarily exempt will be subject to a constructive trust.” A constructive trust is “an equitable tool in the court’s power that can infer a fiduciary-like relationship within a transaction for the purpose of promoting justice.” The constructive trust will be for the benefit of the defendant’s creditors. Because the property was purchased with fraudulently transferred funds, it is not owned by the homestead claimant, rather it is owned by the trust. So, the homestead claimant cannot actually show ownership to prove up the homestead.
To attack a claim of homestead, a creditor should file a lawsuit that alleges violations of the Texas Uniform Fraudulent Transfer Act (“TUFTA”) with regard to the homestead and request that a constructive trust be imposed. The creditor should also seek a preliminary injunction that would enjoin the debtor/subsequent transferee from further transferring the asset.
Furthermore, when a creditor has properly asserted that a debtor fraudulently transferred funds into a property designated as a homestead, a notice of lis pendens can be filed (as the creditor has asserted an interest in the alleged homestead property). This will notice to all potential subsequent transferees, that conduct a title search, that the property is subject of a lawsuit.
If the jury finds that fraudulently transferred funds were used to purchase property designated as a homestead, the court can place the property in a constructive trust for the creditors and the creditors can sell it to satisfy their judgment.
The Texas Uniform Fraudulent Transfer Act (“TUFTA”) provides that a transfer of an asset is fraudulent, as to a creditor, if the debtor made the transfer with the actual intent to hinder, delay or defraud any of the debtor’s creditors.
The definitions portions of TUFTA defines “creditor” as a person. . .who has a claim.” Tex. . “Claim” is defined as a right to payment or property, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured. .
Texas courts have given a broad construction to the term creditor, so that TUFTA “protects the holders of unliquidated unmatured contingent claims.” . Therefore, creditors are “persons having subsisting obligations against the debtor at the time the fraudulent alienation was made or the secret trust created, although their claims may not have matured or even been reduced to judgment until after such conveyance.” .
To summarize, a plaintiff does not need to first prove that a debt is owed or obtain a judgment before it can be considered a “creditor” entitled to relief by way of the TUFTA.
The next blog will answer the question: How does one obtain an injunction to stop further transfers from taking place during litigation?
During the next few weeks, Cersonsky, Rosen & Garcia, P.C. (“CRG”) will be presenting a blog series on the Texas Uniform Fraudulent Transfer Act (“TUFTA”). This portion of the series is intended to provide a primer to the reader on what TUFTA is and how it can be used by companies, individuals, investors, vendors, and other creditors as a pre and post-judgment remedy. TUFTA is a very valuable statute of which any creditor, potential creditor, or business owner should be aware. However, it is often overlooked by attorneys and, in some circumstances, is misunderstood by the trial courts.
The purpose of TUFTA is to “prevent fraudulent transfers of property by a debtor who intends to defraud creditors by placing assets beyond their reach.”
TUFTA provides that a transfer of an asset is fraudulent, as to a creditor, if the debtor made the transfer with the actual intent to hinder, delay or defraud any of the debtor’s creditors. . The UFTA lists 11 non-exhaustive “badges of fraud” to assist in determining whether the debtor made the transfer with the requisite fraudulent intent. The list includes whether:
(1) the transfer or obligation was to an insider;
(2) the debtor retained possession or control of the property transferred after the transfer;
(3) the transfer or obligation was concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(5) the transfer was of substantially all the debtor’s assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) 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;
(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and
(11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.
In order to prove to a jury that a fraudulent transfer occurred (by way of showing that some of the badges of fraud listed above occurred), a creditor will have to ‘trace the assets’ of the debtor. Tracing assets, often times, requires the creditor to conduct litigation discovery such as sending requests for production of relevant documents to the debtor (to obtain bank records, wire reports, check images, contracts, accounts receivable/payable logs, employment records, accounting records, etc), subpoenas to non-parties and/or subsequent transferees and take depositions of the debtor and other key witnesses.
Ultimately, the evidence compiled will be presented to a judge or jury during trial (or an injunction hearing), and the decision will then be made as to whether a fraudulent transfer occurred. If the fact-finder determines that a fraudulent transfer has taken place, TUFTA permits a creditor, under certain circumstances, to set aside a debtor’s fraudulent transfer of assets. . Depending the facts of the case, the subsequent transferee can be held liable for the full amount of the creditor’s claims, regardless of the value of the property transferred.
The next blog will answer the question: Who is a creditor under the Texas Uniform Fraudulent Transfer Act?