While the transfer to the homestead was clearly a transfer to hinder, delay, and defraud creditors avoidable under FUFTA
, Havoco ruled that the statutory scheme of FUFTA
could not overcome the protections of the Florida Constitution and, because the funds were not derived from fraud or other egregious conduct, the equitable lien exception to homestead could not apply.
Scott Rubenstein contended that the condo was "generally exempt under nonbankrupcty law" and as a result should not be considered an asset for purposes of the FUFTA.
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.
defines "claim" as a "right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." Fla.
* FUFTA--Pursuant to FUFTA, a creditor is provided with two distinct theories of recovery against a third party: actual fraud and constructive fraud.
[section] 548--The Bankruptcy Code generally mirrors FUFTA in 11 U.S.C.
* 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., As discussed above, the Bankruptcy Code only limits recovery of transfers to charitable organizations under a constructive fraud theory thus, under 54a, when transfers were made with "actual intent to hinder, delay, or defraud" (9) any creditor, a charitable organization is not permitted to retain transfers.
The Florida Supreme Court in Freeman concluded that FUFTA
was not intended to serve as a vehicle by which a creditor may bring a suit against a nontransferee party for money damages arising from the nontransferee party's alleged aiding and abetting of a fraudulent money transfer.
The district court held that the FUFTA allows creditors only to set aside fraudulent transfers.
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.
The court concluded that, "We believe that the Legislature intended it to facilitate the use of other remedies provided in the statute, rather than creating new and independent causes of action such as aider-abettor liability...." (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.