Res-Ga Hightower, LLC v. Golshani
334 Ga. App. 176
| Ga. Ct. App. | 2015Background
- In 2006 Rockdale Investment Partners borrowed from Omni National Bank; Nasser Golshani personally guaranteed the note. The borrower and guarantor later defaulted.
- The Bank was closed; FDIC as receiver assigned the debt to Multibank, which later assigned it to RES-GA Hightower, LLC (RES-GA). RES-GA later obtained a judgment on the note against Golshani.
- After default but before judgment, Golshani quitclaimed three parcels to others (including a fiancée, his daughter, and later his mother); RES-GA alleged these transfers were fraudulent under the UFTA and sought to set them aside.
- Golshani moved for summary judgment, arguing RES-GA as an assignee lacked standing to pursue fraudulent-transfer claims because such claims are not assignable under OCGA § 44-12-24 and Georgia precedent.
- The trial court granted summary judgment for Golshani; RES-GA appealed raising that the UFTA permits assignees to sue, NeSmith was superseded, and public policy favors assignee standing.
Issues
| Issue | Plaintiff's Argument (RES-GA) | Defendant's Argument (Golshani) | Held |
|---|---|---|---|
| Whether an assignee of debt has standing under the UFTA to bring a fraudulent-transfer claim | UFTA definitions make assignees "creditors" entitled to assert claims; assignment of the debt carried the right to pursue fraudulent transfers | Georgia law (OCGA § 44-12-24) and NeSmith bar assignment of fraud-based equitable claims; assignees lack standing | Held: Assignee lacked standing pre-2015 UFTA amendments; NeSmith governs and bars assignment of fraud-based equitable actions |
| Whether the UFTA displaced NeSmith so assignees could bring claims at the time of suit | RES-GA: UFTA’s broad definitions mean NeSmith no longer controls | Golshani: UFTA does not expressly displace the non-assignment rule; NeSmith remains controlling | Held: UFTA did not clearly repeal NeSmith; NeSmith remains controlling for claims accruing before 7/1/2015 |
| Whether subsequent judgment in assignee’s favor changes NeSmith’s applicability | RES-GA: Obtaining a judgment distinguishes NeSmith and permits equitable relief | Golshani: NeSmith focused on equitable fraud-based claim assignability, not on existence of judgment | Held: Judgment did not overcome NeSmith; equitable fraud claims remain non-assignable |
| Whether 2015 amendments or federal law (FIRREA) authorize assignment or preempt state non-assignment rule | RES-GA: 2015 UFTA amendments and/or FIRREA allow assignees to pursue fraudulent-transfer claims | Golshani: 2015 amendments are prospective only; FIRREA argument not preserved for appeal | Held: 2015 amendments do allow assignees going forward but apply only to claims after 7/1/2015; FIRREA argument waived on appeal |
Key Cases Cited
- Security Feed & Seed Co. of Thomasville, Inc. v. NeSmith, 213 Ga. 783 (1958) (assignee of accounts receivable cannot maintain equitable action to set aside alleged fraudulent deed)
- Marshall v. Means, 12 Ga. 61 (1852) (general principle that a bare right to file a bill in equity is not assignable)
- Couch v. Red Roof Inns, Inc., 291 Ga. 359 (2012) (statutes in derogation of common law construed narrowly to their plain terms)