SB 102--While the bill purports to bring FUFTA in conformity with bankruptcy law, a closer look at the proposed language shows several important departures from [section] 548 that would have drastic ramifications on the efforts of a receivers and trustees in Ponzi scheme litigation.
Rather than bring FUFTA in conformity with relevant federal law, SB 102 would undermine the remedies available to court-appointed receivers and bankruptcy trustees in recovering fraudulent transfers from charitable organizations.
Bringing FUFTA in line with the Bankruptcy Code relating to protections afforded charitable organizations would have no serious impact nor provide any significant benefit.
Those defending FUFTA claims have asserted that a fraudulent transfer must have been made in furtherance of the Ponzi scheme.
The court held that the condo was properly considered an asset for purposes of the FUFTA, since the IRS could have reached it to collect Jerry Rubenstein's taxes either by an administrative levy or by bringing a lien-foreclosure suit in federal court, regardless of any homestead exemption.
Consequently, the transfer was found to be constructively fraudulent under the FUFTA.
On appeal, the 11th Circuit Court of Appeals noted that the FUFTA remedies for fraudulent conveyance are different and possibly broader than those of the Bankruptcy Code.
7) After further considering legislative intent, the Supreme Court stated, "There is simply no language in the FUFTA that suggests the creation of a distinct cause of action for aiding-abetting claims against nontransferees.
Otherwise, it would be difficult and risky for people to design their business ownership and to arrange personal assets defensively if any asset transfer later cancelled as a violation of the FUFTA exposed the transferor and their professional advisors to additional civil damages based on theories of tort liability.
Both ethical positions are inconsistent with the Florida Supreme Court's interpretation of the FUFTA.