This action requires us to consider whether a non-statutory action to reach and apply permits a creditor to pursue equitable assets of a debtor after the statute of limitations contained in G. L. c. 109A, § 10, has run. Jules R. Cavadi, both individually and as assignee of the Federal Deposit Insurance Company (FDIC), holds a 1991 agreement for judgment and an execution against Stephen C. Barnes. Cavadi brought suit on that judgment, asserting that certain properties located on Martha’s Vineyard (Vineyard) and in the South Boston section of Boston, as well as Stratham, New Hampshire, actually are assets of Barnes although they are held in the name of Christina DeYeso, Barnes’s romantic partner, the mother of his three children, and the defendant in this action. 4 In his complaint, filed in 2004, Cavadi asserted claims against the three properties, both under the common law (reach and apply) and under G. L. c. 109A, the Massachusetts enactment of the Uniform Fraudulent Transfer Act (UFTA). Before trial, Cavadi filed a motion for lis pendens against the Vineyard property, which DeYeso contested by means of a special motion to dismiss pursuant to G. L. c. 184, § 15. The motion judge found that Cavadi’s claim under UFTA is barred by the four-year statute of limitations in G. L. c. 109A, § 10. 5 DeYeso subsequently moved for summary judgment regarding Cavadi’s common-law claims, arguing that UFTA provides an exclusive statutory remedy and that all claims accordingly are governed by the four-year statute of limitations in § 10. Summary judgment was denied by a second judge in the Superior Court and the action proceeded to trial before a third judge.
After a jury-waived trial, the judge found that Barnes fraudulently transferred the South Boston property to DeYeso, that Barnes has an interest in the New Hampshire property by virtue of his contribution to its purchase price, and that DeYeso holds the Vineyard property in trust as Barnes’s “straw.” The judge then ordered entry of judgment setting aside the transfer of the South Boston property, declaring Barnes to have a $98,854
1. Facts. We take the following facts from the findings of the judge, supplemented by details drawn from testimony where indicated and documentary evidence in the record. On September 17, 1991, an agreement for judgment was entered in the Superior Court that provided that judgment “shall enter as against [Barnes] ... in the amount of $753,384.78 in favor of [the] FDIC.” Cavadi’s complaint alleges that he was individually a creditor under this judgment because he and the FDIC’s predecessor-in-interest were “joint venture partner[s]” in collecting a promissory note due to Cavadi. Following entry of judgment, execution was issued but the FDIC took no effective action to collect it. Cavadi subsequently took assignment of the FDIC’s interest and now claims the benefit of the entire judgment along with interest accruing at the statutory rate since 1991. It is undisputed that Cavadi has been unsuccessful in enforcing execution on his judgment against Barnes.
The total value of the judgment against Barnes, including post-judgment interest, now exceeds $2 million, and this debt to Cavadi appears to be but one of several owed by Barnes to various creditors. Cavadi alleges that there are equitable assets of Barnes that cannot be reached at law because they are held in DeYeso’s name. Because of the allegation that Barnes and DeYeso conspired to hide Barnes’s assets from creditors, the relationship between the two was the subject of substantial dispute before the trial judge. That the exact nature of their personal and financial relationship remains obscure even after trial appears to be the result both of design and of their total lack of credibility. 6
Barnes and DeYeso met in the early or mid 1980’s. They have three children together, bom in 1991, 1992, and 1999, and
Public evidence of their “volatile” relationship can be found in DeYeso’s paternity and child support actions begun in Massachusetts after the birth of their second child and in New Hampshire after the birth of their third child. As a result of those actions Barnes is obligated to provide DeYeso with support that, in the language of the couple’s New Hampshire stipulation, “is a substantial increase over the amount mandated” by guidelines reflecting the fact that Barnes “wants to . . . pay extra support for the benefit of his three children.” Barnes is substantially in arrears in his payment of child support, and DeYeso has sought to hold him in contempt. The record demonstrates, however, that Barnes provides substantial support to DeYeso by means of credit cards billed to Barnes’s corporations, checks made out to DeYeso from such corporations, and various transactions between Barnes’s businesses and entities controlled by DeYeso. Indeed, the judge found that Barnes and DeYeso engaged in “any number of transactions designed to move assets from him to her without leaving a paper trail.” Although the judge declined to find that the child support orders were collusive, the overwhelming impression is that transactions between DeYeso and Barnes were not entirely aboveboard.
Cavadi’s action focuses not on specific transactions, however, but on present ownership of the properties that he seeks to reach and apply. The importance of this distinction is a subject of our analysis. Accordingly, it is necessary to describe the circumstances by which DeYeso acquired title to each of the properties in question.
The Vineyard property.
In approximately 1982 Barnes and John Humbert, one of Barnes’s business partners, purchased a property on Pease Point Way in Edgartown. The tenure of joint
In 1992, Citizens Bank had secured a judgment against Barnes and in March, 1999, a default judgment entered against “Diaz” declaring that Barnes was the true owner of the Vineyard property. Shortly after the default judgment, and supported by an affidavit from “Diaz,” DeYeso sought to intervene in the proceeding as the true owner of the property. A judge in the Superior Court found that her affidavit, like the affidavit of “Diaz,” was “riddled with contradictions and inconsistencies,” was not credible, and required the conclusion that DeYeso “was fully involved in a scheme to shield the [Vineyard] property from Citizens Bank’s claims.” 9
With DeYeso’s intervention unsuccessful, the process of seizing and selling the property went forward. “[I]n a panic,” DeYeso telephoned one of Barnes’s business partners reporting that the bank was going to take the house and that she needed to make a deposit in order to bid on the property. The partner wired $25,020 from a company fifty per cent owned by Barnes (through various offshore entities) to an Edgartown National Bank account maintained by DeYeso. There was testimony that Barnes’s capital account with the company was subsequently credited for the $25,020. Previously, on June 23, 1999, the business partner had wired $45,020 from the same company to DeYeso’s account.
DeYeso made the high bid of $425,000 at auction but failed to secure financing. On August 10, 1999, Citizens Bank took title to the Vineyard property in consideration of $425,000 and subject to a one-year right of redemption in favor of Barnes. DeYeso’s financing subsequently came through and on October 20, 1999, Citizens Bank conveyed the property to her in consideration of $452,000.
11
A mortgage loan from Dukes County Savings Bank to DeYeso provided $300,000 of the purchase price. DeYeso argued that the remainder of the purchase price was provided by her own savings and by a $125,000 loan from her sister secured by a second mortgage on the New Hampshire property. Although a second mortgage was recorded on the New Hampshire property, the trial judge found no documents sup
Two days after her purchase of the Vineyard property, Barnes gave a release deed to DeYeso in which he waived his right of redemption in consideration of one dollar. 13 DeYeso then conveyed the property to a trust in which she controls the principal and income and which, at her death, will be distributed to her children. The judge found that Barnes continued to live at and enjoy the Vineyard property and discounted testimony that he vacationed at the Vineyard property with DeYeso “for appearance sake for the kids.” The judge found that the indicia of fraud surrounding these transactions were “extensive” and that Barnes intended for DeYeso to hold the property as his straw. As a result, the judge concluded that Barnes was the true owner of the Vineyard property that was held in trust for him by DeYeso.
The New Hampshire property. By means of a warranty deed dated April 28, 1997, Raymond L. Masse and Susan E. Masse conveyed to DeYeso property located at 12 Morning Star Drive, Stratham, New Hampshire. The New Hampshire property has been the primary residence of DeYeso and her children since its purchase.
A mortgage loan from the Piscataqua Savings Bank to DeYeso
DeYeso presented no evidence of her cash savings other than deposition testimony from March, 1997, that she had “definitely over $100,000” in cash despite her 1995 bankruptcy and the dearth of any substantial evidence as to her employment or income. DeYeso also reported that in 1995 she had substantial cash ($35,000) either in a Hungarian safe deposit box, in “some U.S. bank,” or in some other source she no longer recalls. This cash savings was alleged to be the source of the funds lent to SACA Management.
The judge, however, found that the vast majority of the $98,500 actually passed through Danube and originated with Barnes. The largest portion, $56,393, represents proceeds from the sale of a condominium previously owned by Barnes, foreclosed on, purchased by a straw owner on behalf of Barnes, and eventually sold to finance DeYeso’s purchase of the New Hampshire property. Further, the judge found that the loan to SACA Management was actually a loan from Barnes (via Danube) which was then “repaid” to DeYeso as a means of funneling money between the couple. More than $94,000 of the $98,500 down payment therefore reached DeYeso by means of transfers from Barnes. The judge concluded that these transfers occurred with intent to defraud.
Barnes’s intention to hide his involvement with the New Hampshire property was further evidenced by testimony from one of his business partners that, among other things, Barnes arranged that invoices for improvements to the New Hampshire property be in the name of the business partner because Barnes was “trying to keep his name off as many documents as possible as they relate to [DeYeso], so they don’t tie together too much.”
The judge concluded that Barnes held an interest in the New Hampshire property in the amount of $94,854 ■ — ■ the portion of the down payment proved by Cavadi to have originated with Barnes.
In responding to Cavadi’s assertion of inadequate consideration, DeYeso argued that transfer was actually in consideration of approximately $90,000 in outstanding child support payments due to her from Barnes. This consideration does not appear on the deed, and Barnes and DeYeso did not report the transfer of the South Boston property to the Department of Revenue, which was calculating Barnes’s outstanding child support. DeYeso’s position is further undercut by her claim, in another proceeding, that the South Boston property was transferred to her in consideration of monies DeYeso expended on behalf of Barnes relating to Citizens Bank’s 1999 seizure of the Vineyard property. See note 8, supra.
The South Boston property was sold in 2005 for $700,000 and the one-half interest belonging to DeYeso as trustee has been placed into an escrow account. Presumably, the parking lot generated revenue between 2001 and 2005, but no income or profits generated by the property have been distributed to DeYeso. The judge identified badges of fraud surrounding Barnes’s transfer of the property, found Barnes was insolvent or nearly insolvent at the time of the transfer, and found inadequate consideration. Accordingly, the judge ruled that the transfer was fraudulent and that Barnes was the owner of the proceeds of the South Boston property.
2.
Standard of review.
Cavadi’s complaint includes counts to reach and apply each of the three properties and a final count under UFTA, G. L. c. 109A, that relates to all three properties. The UFTA claim did not survive DeYeso’s special motion to dismiss pursuant to G. L. c. 184, § 15, and Cavadi has not
The standard of review relating to a jury-waived proceeding is well established — “[t]he findings of fact of the judge are accepted unless they are clearly erroneous” and “[w]e review the judge’s legal conclusions de novo.”
T.W. Nickerson, Inc.
v.
Fleet Nat’l Bank,
3. Analysis. In considering this case, we first address the cause of action brought by Cavadi in relation to the analysis applied by the trial judge, distinguishing the nonstatutory action to reach and apply from related actions that were not before the court. We then analyze DeYeso’s challenge to the continuing vitality of the nonstatutory action to reach and apply and the application of the elements of that action to the properties at issue.
The only counts of Cavadi’s complaint that went to trial were the reach and apply claims that were brought under the common law rather than pursuant to statute. At trial, however, the judge applied analysis that focused on the existence of fraudulent intent that is not an element of a nonstatutory action to reach and apply. See
Foster
v.
Evans,
It is helpful first to clarify the nature of the cause of action that Cavadi has pleaded. Nonstatutory actions to reach and apply are equitable actions developed by the English Courts of Chancery and, as such, fall within the general equity jurisdiction of this court and the Superior Court (G. L. c. 214, § 1) rather than
Prior to the merger of law and equity, nonstatutory actions to reach and apply were known as “creditor’s bills.”
Foster, supra
at 691. Traditionally a creditor’s bill could be brought (i) by a judgment creditor, (ii) who had attempted to obtain satisfaction at law, and (iii) who sued in equity for the purpose of reaching property that could not be taken on execution at law.
Id.,
quoting
Pettibone
v.
Toledo, Cincinnati & St. Louis R.R.,
“The jurisdiction of equity to entertain suits in aid of creditors undoubtedly had its origin in the narrowness of the common-law remedies by writs of execution.” 4 Pomeroy’s Equity Jurisprudence § 1415, at 1065 (5th ed. 1941). See
Freedman’s Sav. & Trust Co.
v.
Earle,
As regards express trusts, the case of
Shattuck
v.
Burrage,
One type of constructive trust, implied by law as a result of mistake, violation of a fiduciary duty, or unjust enrichment, may be imposed, generally as between transferor and transferee, without proof of fraudulent intent. See id. at 246 (“A constructive trust is a flexible tool of equity designed to prevent unjust enrichment resulting from ... a violation of a fiduciary duty or confidential relationship, mistake, or ‘other circumstances’ in which a recipient’s acquisition of legal title to property amounts to unjust enrichment”). A constructive trust also may be imposed as a result of fraud on the transferor. Id. Due to the dissimilar intent requirements, such constructive trusts may also fall outside the purview of fraudulent conveyance law but within the scope of a creditor’s bill. See G. L. c. 109A, §§ 5, 6.
A different kind of constructive trust may arise where property is conveyed in fraud of third-party creditors rather than in fraud of the transferor or transferee. 5 A.W. Scott & W.F. Fratcher, Trusts § 470, at 363-367 (4th ed. 1989). Cf.
Black
v.
Black, 4
Pick. 234, 237-238 (1826) (noting existence of “constructive trusts which by the rules and principles of courts of chancery are considered to exist whenever a deed of conveyance ... is made for the purpose of defrauding or delaying creditors” but
In light of the foregoing discussion it is clear that the nonstatutory action to reach and apply pleaded by Cavadi is not coextensive with an action under UFTA. See G. L. c. 109A;
Bernard
v.
Barney Myroleum Co.,
We turn to the question of the continuing vitality of the non-statutory action to reach and apply and DeYeso’s principal argument that the enactment of UFTA supersedes any claim to reach and apply property that has been fraudulently conveyed. In considering DeYeso’s argument, we begin with the admonition that UFTA, “shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of [G. L. c. 109A].” G. L. c. 109A, § 12. The interpretation sought by DeYeso, however, is in derogation of the common law, so we also look to the rule that “an existing common
DeYeso argues that intent to abrogate all common-law causes of action as to fraudulent conveyances is implicit in the broad scope of UFTA and in the interest of uniformity that underlies UFTA. See
Salisbury
v.
Salisbury Water Supply Co.,
We are not persuaded that the Massachusetts enactment of
We therefore conclude that, far from implicitly suppressing common-law causes of action, UFTA is designed to establish a uniform statutory baseline for fraudulent transfer actions which is supplemented by the common law unless there is an inherent conflict. Accordingly, because the nonstatutory cause of action sweeps more broadly than UFTA, its abrogation is not “required by the provisions of [c. 109A].” See G. L. c. 109A, § 11. Cf. In re Valente, supra at 261-262, and cases cited (“reject[ing] the proposition that the adoption of the UFTA by a state preempts all common law remedies,” including equitable remedies).
Although the nonstatutory action to reach and apply is clearly broader than UFTA, there are circumstances in which both UFTA and the nonstatutory action to reach and apply will be applicable. As previously discussed this will involve cases where a constructive trust is implied for the benefit of creditors in order to set aside a fraudulent conveyance. UFTA necessarily takes precedence in such circumstances. See G. L. c. 109A, § 11. An analysis of the circumstances in a particular case is
Having held that the nonstatutory action to reach and apply is abrogated by UFTA only where the implication is necessary, we turn to the three elements of the action and their application here. See
Foster,
supra;
Pettibone, supra
(requiring that creditor have secured judgment, unsuccessfully sought to execute on judgment, and “property which could not be taken on execution at law”). There is no question that Cavadi has a judgment against Barnes. Similarly, it is undisputed that Cavadi has been unable to execute on the judgment. Resolution of this case therefore hinges on the final element, that the assets sought are “property [of the debtor] which could not be taken on execution at law.”
Id.
See
First Nat’l Bank
v.
Nichols,
The Vineyard property. Cavadi argues that the Vineyard property is Barnes’s equitable asset though title lies in DeYeso’s name. In considering whether Barnes is the true owner of the Vineyard property we find guidance in the doctrine of resulting trusts:
“[W]ithin the well recognized principle of equity jurisprudence . . . where one buys and pays for real estate, but the conveyance of the title is to another, a trust results in favor of the one who pays the consideration.”
Howe
v.
Howe,
The judge found that DeYeso held title to the Vineyard property as Barnes’s straw. The presumption of a resulting trust was thus open, but it was not rebutted. 16 Although there was considerable evidence that Barnes’s intent was fraudulent, it was relevant only to rebut a claim by DeYeso, if made, that Barnes did not intend to retain the beneficial interest in the property. Considering the circumstances under which DeYeso took title to the Vineyard property and the trial judge’s findings regarding the couple’s course of dealings, we cannot say that the judge’s conclusion that the entire Vineyard property was held in trust was an abuse of discretion.
The New Hampshire property.
Cavadi also asserted that the New Hampshire property was held in DeYeso’s name but was actually Barnes’s asset. The judge found that “Barnes funneled $94,854 to DeYeso” for use in purchasing the property and determined that there were “badges of fraud” surrounding these transactions. Based on Barnes’s providing the vast majority of the down payment on the New Hampshire property and the absence of any finding of donative intent, the trial judge could permissibly have imposed a resulting trust on the New Hampshire property.
17
See
Majfei, supra;
Restatement (Third) of Trusts,
supra
at § 7 comment (a), at 86. Rather than determine that the
DeYeso argues that no trust may be imposed over either the Vineyard property or the New Hampshire property because the funds transferred by Barnes could have been provided in respect of his child support obligations and because the judge incorrectly valued Barnes’s interest in the two properties. As regards the child support argument, DeYeso introduced evidence showing that Barnes was substantially in arrears on his child support obligations. The judge found, however, that Barnes and DeYeso engaged in any number of transactions designed to move assets from him to her without leaving a paper trail. The judge also found that Barnes cannot tell how much money he provided to DeYeso between 1994 and 2001, was substantially in arrears on his child support obligations in 2001, made no payments in respect of his child support arrearage between 2001 and 2007, and never advised the Department of Revenue of certain transactions now alleged to have constituted the payment of child support. Assuming without deciding that it is permissible for Barnes to pay child support in this manner in preference of other creditors, the judge was not required to believe Barnes’s testimony or agree with DeYeso’s characterization of the transfers. Where Barnes arranged to provide funds to DeYeso in an undocumented and intentionally secretive manner while accumulating a large child support arrearage, it was not clearly erroneous for the judge to hold Barnes and DeYeso to that arrangement by refusing to treat the payments as child support.
The judge adopted a different line of reasoning regarding valuation of Barnes’s interest in the New Hampshire property. The judge found that Barnes had provided nearly ninety-five per cent of the cash payment made on the New Hampshire property. He did not rule, however, that Barnes was the sole beneficial owner of the property. The reasoning supporting this determination is not clearly set forth in the decision below, but the judge did determine that proof that Barnes made continuing payments toward the mortgage on the New Hampshire property was lacking, and although DeYeso presented no credible evidence as to her income or even her capacity to earn income, it is not inconceivable that she could have made the mortgage payments on the New Hampshire property with independently acquired funds. It was not clearly erroneous for the trial judge to draw a different inference regarding mortgage payments on the New Hampshire property than he drew respecting the Vineyard property. It therefore was not an abuse of discretion to declare
The South Boston property. Finally, we turn to the South Boston property. Unlike the Vineyard and New Hampshire properties, Barnes owned this real estate in his own name and his transfer of it to DeYeso was a matter of public record. Because the transaction was directly from Barnes to DeYeso, it is not possible for Cavadi to have shown the existence of a resulting trust. See Restatement (Third) of Tmsts, supra at § 7 comment (c), at 89-90; Restatement (Second) of Trusts, supra at § 405, at 327 (“Where the owner of property transfers it without declaring any trust, the transferee does not hold the property upon a resulting trust although the transfer is gratuitous”). The obvious alternative is a constructive trust which “is a flexible tool of equity designed to prevent unjust enrichment resulting from fraud, a violation of a fiduciary duty or confidential relationship, mistake, or ‘other circumstances’ in which a recipient’s acquisition of legal title to property amounts to unjust enrichment.” Maffei, supra at 246.
In these circumstances there is no assertion that the transfer of the South Boston property was the result of fraud on Barnes, of mistake, or of the violation of a fiduciary duty or confidential relationship. See
id.
Instead, Cavadi has alleged only that the property was transferred in consideration of one dollar and that Barnes accordingly retains an equitable interest. The theory underlying any constructive trust that might be imposed is therefore one based on fraud by Barnes on Cavadi. See 5 A.W. Scott & W.F. Fratcher, Trusts § 470, at 363-367 (4th ed. 1989) (constructive trusts imposed as result of wrongs to third parties). An action to recover such an equitable interest is necessarily within the scope of UFTA and is thus the type of action that is
For the foregoing reasons we affirm the judgment as to Count I (the Vineyard property) and Count II (the New Hampshire property) of the complaint, but we reverse the judgment with respect to Count III (the South Boston property) and remand to the Superior Court for entry of judgment for DeYeso on Count III.
So ordered.
Notes
Bames was also, but is no longer, a defendant in this action. An agreement for separate judgment and execution was docketed on July 18, 2006.
In contrast, an action on a judgment may be commenced any time within twenty years of the judgment. G. L. c. 260, § 20.
Bames testified at trial and the judge did not believe his testimony. DeYeso was found to be unavailable and partial transcripts of her deposition testimony, which the trial judge also found to be unbelievable, were introduced into the record.
Bames appears to have possessed a number of luxury items over the years that he testified were either owned by corporations, security on loans, given to a “Mr. Diaz” (discussed infra), or otherwise not held in Barnes’s name.
The judge found that Barton sold the property to DeYeso. The recorded instruments entered into evidence, however, do not show DeYeso’s name appearing in relation to the Martha’s Vineyard (Vineyard) property prior to 1999 and the deed by which Citizens Bank took title to the Vineyard property states that Barton’s grantee was “Raymond Diaz, Tmstee of Pegasus Trust.” The relationship between DeYeso and Diaz is discussed infra and need not be further examined for these purposes as we do not rely on the identity of the 1992 purchaser in reaching our holding.
One of Barnes’s former business partners testified that he recognized the signature on the Diaz affidavit as Barnes’s handwriting. After comparing Barnes’s known handwriting and the signature on the affidavit, the trial judge in this proceeding concluded that Diaz’s signature was authored by Barnes.
The judge found that Danube was a means for Barnes to funnel funds from himself to DeYeso. Through her deposition testimony DeYeso claimed that Danube was a “d/b/a” that she formed for her own purposes, including the import of low-cost products from “Hungary or any other third-world country” that ran for a number of years and “wasn’t terribly successful.” Barnes testified that Danube was a corporation that he established together with a wealthy foreign friend named “Ramon Diaz” whom he met at antique or collectible car shows in Europe. According to Barnes, Diaz provided funds to Danube to permit Barnes to “explore some new possibilities either in the Far East or over in Eastern Europe.” Danube appears to have been incorporated because Barnes testified that “for brief periods of time” he may have held one hundred per cent of its bearer shares making him the sole owner of the company. The judge made no findings as to who, if anyone, held Danube’s bearer shares when they were not in Barnes’s possession. Regardless of its corporate structure, DeYeso and Barnes agree that Diaz intended Danube to operate as “a pool of money” from which a number of people could draw without oversight. Cavadi questions the existence of Ramon Diaz and the judge found credible the testimony of Barnes’s former business partner that Barnes and Danube are one and the same. In any event, Danube appears to have been flush with cash.
In another proceeding, DeYeso submitted a memorandum of law stating that “during the period from 1997 through 1999, Barnes became indebted to DeYeso, in the amount of $452,000” and supported this assertion by attaching an “Agreement for Payment.” The agreement states: “DeYeso, on behalf of Barnes’s debts to his creditors, remunerated a sum of $452,000 ... to Citizen’s Bank in connection with the seizure of property located in Edgartown, Massachusetts.” The judge found this agreement to be persuasive evidence that DeYeso purchased the Vineyard property on behalf of Barnes.
The judge was permitted to disbelieve DeYeso’s evidence regarding the occurrence of the purported loan and instead to credit Cavadi’s evidence that the funds came from Barnes. DeYeso asserts that the judge impermissibly treated disbelief as evidence of the opposite. This court has said that there may be circumstances in which “testimony, although not worthy of credence, might be of such character as to lead to the conclusion that if the transaction were honest such testimony would not have been presented, and thus might tend to support the affirmative burden resting on the plaintiffs.”
Rioux
v.
Cronin,
The distinction between supporting the plaintiff’s case and acting as affirmative evidence is finely drawn, but in these circumstances, the judge essentially determined that DeYeso’s testimony was “so inherently improbable as to afford presumptive evidence of fraud.” Id. at 135.
DeYeso acknowledged that, had this right of redemption been exercised, the property would have been seized by Barnes’s creditors. The right was therefore valueless to Barnes but may have been of value to DeYeso or to Barnes’s creditors.
Considering the distinction between law and equity that originally inspired the nonstatutory action to reach and apply, it is important to note that following the American Revolution the courts of this Commonwealth were exclusively courts of law. See J.R. Nolan & L.J. Sartorio, Equitable Remedies § 1.3, at 3-4 (3d ed. 2007). During the course of the Nineteenth Century, the Legislature alleviated some of the resulting harshness by enacting a number of statutes granting equitable jurisdiction for special purposes which, in some instances, extended powers not available in traditional equity jurisdiction.
Id.
See
Blumenthal
v.
Blumenthal,
DeYeso also argues that enactment of a statute by the post-Revolution Commonwealth abrogates prior English statutes and she traces the origins of fraudulent conveyance law back from the Uniform Fraudulent Transfer Act (UFTA), through the Uniform Fraudulent Conveyance Act (UFCA), to the Statute of Elizabeth, which was adopted by custom and usage into the common law of Massachusetts. See
Pearce
v.
Atwood,
DeYeso did not pursue the argument that her romantic relationship with Barnes required that a donative intent be presumed. Instead, DeYeso focused on her purported estrangement or distance from Barnes as well as the existence of outstanding child support, arguments that emphasize the adversary nature of her relationship with Barnes. She claimed she was the source of the purchase monies and the mortgage payments, not Barnes.
Because this is an action in personam, it was properly brought in the
DeYeso argues that if partial or proportional interests in the properties are to be awarded, her share should be calculated with the purchase price, less Barnes’s proven contributions, as the numerator and the total purchase price as the denominator. By treating the financed portion of the sale price as funds contributed at purchase by DeYeso, this methodology would grant her a sixty-eight per cent interest in the New Hampshire property and a seventy-three per cent interest in the Vineyard property. The actual value of the couple’s collective interest in the properties, however, is the equity in the property rather than the purchase or sale price. Where Barnes was found to have provided ninety-five per cent and seventy-nine per cent of the down payments the results produced by DeYeso’s methodology are illogical.
Cavadi’s UFTA claim would likely have been good as to the South Boston property and was brought within the four-year statute of limitations contained in G. L. c. 109A, § 10. The issue is not before this court, however, because Cavadi’s UFTA count (relating to all three properties), was dismissed as a result of DeYeso’s special motion to dismiss pursuant to G. L. c. 184, § 15, and Cavadi has not appealed from that ruling.