Tolle v. Fenley

UT App 78 TOLLE, Appellee, Plaintiff and Jeanne FENLEY, Fenley,

Mary Dagmar John Eugene Tolle, Ralph H. Hernan Juan Hernandez, dez, Sherry A. Defen Appellants. dants and

No. 20041045-CA. Appeals of Utah. Court of March Coleman,

Jared Law Office of Jared G. Coleman, City, Salt Lake Appellants. for Ryan Kenneth Parkinson and Tenney, D. Petersen, Provo, Appel- Howard Lewis & lee. BENCH, McHUGH, Judges

Before THORNE.

OPINION

BENCH, Presiding Judge:

¶ Appellants Mary Dagmar Fenley and Fenley (collectively, Fenleys) John assert accepted him.1 the invitation erroneously visit Jeanne voided the trial November 2001. from Tolle visit came to Utah properties real Robert visit, During put Trans- Robert Jeanne’s name under Uniform Fraudulent the Utah (UFTA). accounts. After on several his bank fer Act Code Thanksgiving holiday, §§ affirm. she returned Flori- to -13 We 25-6-1

da. BACKGROUND ¶ 2001, Robert 5 On November was was in Tolle born Ohio Appellee Jeanne arrest, in of his arrested Utah. At the time Tolle. Approxi- in 1958 and Wilma to Robert telephoned “told her Robert Jeanne and later, mately family year moved to one being knew he was arrested and that he she During and ado- Florida. Jeanne’s childhood responsible” was for his arrest. The next lescence, raped and her on Robert abused Utah, in day Jeanne to While flew Utah. Later, Robert and Wil- numerous occasions. joint money in the Jeanne all of the withdrew reported rape ma inci- divorced. Jeanne met with bank accounts. also Juan Jeanne police in dents the Florida and Rob- to Hernandez, Sherry friends and Robert’s and From ert returned to Ohio. 1973 to caretakers, goals. her three and told them locate Jeanne was unable to Robert because ¶ incarceration, Following Robert’s sev- to his exact whereabouts were unknown her. to of the wrote letters eral Defendants Rob- ¶ Mary Dagmar married In Robert “indicating protecting in [his] ert an interest couple Fenley amicably di- in Utah. days property from Five after his Jeanne.”2 year, vorced in 2001. Later Jeanne’s arrest, Ralph “pick[ to up] Robert asked phone and gave cousin her Robert’s number jail way” to quit-claim deeds on the “for living had in told her that Robert been signature.” signed Robert’s Robert and years. pro- In the previous for fourteen Ralph properties to deeded all his real and address, discovering her cess of father’s Mary, joint The trial court tenants. later Tolle, Ralph Robert’s Jeanne contacted by insolvent [Robert] found this “made brother, Mary, Robert’s ex-wife. Jeanne and virtue transfer.” past her and told them both about abuse ¶ 7 Robert from Utah and was extradited rape informed them that she incidents and February in indicted Florida. first, goals: had to make no other three sure filed a action Robert in Jeanne civil Robert; second, hurt to children were Florida, ultimately in a resulted de- prison raping make went to sure Robert for fault amount her; third, away abusing to take $1,704,610.75, awaiting plus interest. While possessions for what he to her. Robert’s did trial, his criminal Robert died Florida in police then contacted a Florida detec- Jeanne 2002. June tive. instructed to tele- The detective her phone acknowledge Robert to see he would ¶ Ralph signed quit-claim deed to later rape and asked her to record incidents Hernandez, joint Sherry ten- Juan the conversation. ants, part proper- interests of his him previously to Robert. Jeanne Robert. ties deeded In October called conversation, nothing paid Ralph for the The Hernandezes During the Robert acknowl Mary quit-claim to edged raped signed her deed. deed that he had on several son, joint ownership with her sorry. that he establish John occasions. He told her Fenley, proper- in the that he for all of her interests Robert also told Jeanne owned a two- to her Robert. previously and a ties deeded hundred acre ranch five-bedroom paid nothing Mary for this transfer. house invited her come to John to in Utah and to fact, permission keep most properties Robert's valuable 1. In owned several her Robert get Mary Utah. "so them." items Jeanne could Robert, informing a letter him she wrote advising Ralph to Robert him wrote letter trying "get Robert's mon- felt that Jeanne was way keep having Jeanne about the "best from ey property.” Sherry assets.” wrote [Robert’s] access to Robert, urging giving him to write her letter Department 9 In March Jeanne filed a com- trial court’s determination. See Ctr., Inc., plaint against seeking Safety all of the Defendants Pub. Mfg. v. Robot Aided 199, 6, 113 alleged App to void the fraudulent 2005 UT P.3d 1014. Defendants, properties from to the Robert

pursuant to the UFTA. See Utah Code ANALYSIS The trial court found that 25-6-1 to -13. I. “Creditor” under the UFTA “right payment” or claim “arose Jeanne’s argue 12 The first that the before transfer of the land from Robert by incorrectly classifying trial court erred specifically Tolle.” The court found that al- Jeanne as a creditor under the be UFTA “Plaintiff, Tolle, though Jeanne did not file initially only cause she threatened civil action February, civil suit until 2002 in Florida and and did not obtain a until after 24, procure judgment September a until properties Mary Robert transferred his 2004, the Plaintiff made her intentions clear Ralph. § and See Utah Code 25-6- Tolle and to Robert the other defendants (4). 2(3), any prior Additionally, transfers.” the trial court found that the Defendants did not ¶ apply, 13 For the UFTA to the give any consideration for the transfers and requires statute a “creditor-debtor relation that “[t]he concluded transfer of all the ... ship.” Bradford, App v. 1999 UT Bradford property was a fraudulent transfer made ¶ 373, 14, 993 provides P.2d 887. The UFTA keep with intent to property the the from the remedy against debtors who seek to “de Plaintiff, reach of the judg- Jeanne Tolle’s fraud a avoid a debt.” Id. Fenleys ment” and is “therefore void.” The property designed place “[Transfers appeal. now beyond debtor’s assets the reach of the debt- or’s creditors are void as to the creditors.” AND ISSUES STANDARDS OF REVIEW Investors, Givens, National Loan L.P. v. 952 ¶ (Utah 1998) (citation Fenleys present 1067, 10 The several issues on P.2d 1069 First, omitted). appeal. Fenleys quotations the assert the Because the UFTA “is erroneously nature,” trial court concluded that Supreme Jeanne remedial the Utah was a “creditor” and that she had a “claim” Court has held that the statute “should be properties liberally to the transferred under construed.” Id. The UFTA “broad Second, Fenleys UFTA. ly assert that the defines the word ‘creditor’ to mean erroneously trial court person concluded that Robert who has a (citing claim.” Id. 25-6-2(4)). fraudulently § had “actual intent” to transfer Code Ann. A “claim” is also properties broadly under Utah Code section 25- defined “right under the UFTA as a 6-5(1)(a) of the UFTA. payment, right Utah Code Ann. whether or not the is re 25-6-5(1)(a). Third, § judgment, assert liquidated, unliquidated, duced to erroneously fixed, matured, unmatured, the trial court contingent, concluded dis puted, undisputed, secured, Robert was “insolvent” legal, equitable, under UFTA 25-6-2(3). properties at the time the § were transferred. or unsecured.” Utah Code Ann. -6(2). 25-6-3, §§ Id. ¶ 14 Based on the broad definition of a present 11 These questions issues mixed claim under the UFTA and the direction questions of fact and law. supreme We review factual from our court to construe the stat- clearly under the liberally, erroneous standard and ute we hold that Jeanne was “in- legal questions deed, [Robert], under the correctness stan- given creditor of that [her] Stubbs, 1234, dard. v. See 970 P.2d claim to [properties] although not re- Jeffs — (Utah 1998). 1244 questions Although of law duced [at time] arisen —had correctness, “may are for through reviewed we still recent threats civil [of action].” grant Bradford, a trial court application App discretion 1999 UT 373 at given of the law to a fact situation.” Id. 887. Jeanne’s numerous threats of suit and Questions statutory interpretation probable legal are Robert’s awareness of action questions of law that are reviewed for cor- him amount purposes to “claim” for Green, given rectness and no deference to the of the UFTA. United v. States

67 Cir.2000) “solvency (3d is determined (citing Baker the UFTA because 201 F.3d (1974), transfer,” not at the time Geist, for at the time of the Pa. 321 A.2d 634 v. proba- judgment. “awareness of a at 1034. holding that mere of the to a against a debtor amounts legal action ble adopt the Arizona 17 We cannot Pennsylvania Uni- purposes for debt” the Full Faith approach in our case because Act); Conveyances Brad- Fraudulent form of the United States Con Credit Clause 887; P.2d App ford, 1999 UT reviewing prevents us from stitution Conveyances and Fraudulent 37 Am.Jur.2d proper adju judgments foreign states with (2001) (“The of a § existence Transfers authority, foreign dicatory even a state has bringing a fraudu- requirement debt is misinterpreted its own law. See U.S. Const. speak- generally conveyance action lent IV, Controlling precedent from art. 1.4 legal action probable ing, the awareness ” Supreme Court has differenti United States (foot- a ‘debt.’ against a debtor amounts to (legis laws ated between “the credit owed to omitted)). The trial court found judgment in ... ing. A final one State purposes For prior to transfers.” recognition throughout qualifies for UFTA, therefore a creditor whose Jeanne is words, judgment land.... other [I]n transferred the arose before Robert rendering gains nationwide force.” State properties. added). 233, (emphasis 118 657 Id. at S.Ct. ¶ Fenleys argue that The Supreme has stated that it is Court qualify judgment does not Florida Jeanne’s “ policy considerations of local [no] ‘aware alleg it the UFTA because as a claim under rightly law could be deemed edly sought in of Florida’s stat was violation full impair force and effect which the through the ute of limitations and obtained clause and the Act of Con faith and credit argu These collusion of her half-sister.3 money] judg given to gress require [a to be attacks on the ments constitute collateral ” of its rendition.’ ment outside the state general rule of law judgment. Florida “The (alterations original) in at 118 S.Ct. in judgment may not drawn is that a Hunt, Magnolia Petroleum Co. v. (quoting proceeding in and an question a collateral 430, 438, L.Ed. 149 64 S.Ct. 320 U.S. upon judgment regarded as collat attack (1943)). judgment is offered eral made when the subsequent proceed a claim in a the basis of of limita a statute Whether Educ., 571 P.2d ing.” v. Board Olsen legal conclusion. See Estes tions has run is a (Utah 1977). result, we do As 52, ¶ 4, Tibbs, 979 P.2d 823. v. 1999 UT these collateral attacks. not consider determination, the chal challenging such a “only to assert party’s recourse is concurring opinion lenging separate In16 his ...; review that, legal arguments on direct matter, argues as a these Judge Thorne this in collater contentions adopt Ari- it cannot raise these uniformity, we should matter of Cousin, judgment.” attack on the Underwriters 204 al See Hullett approach. zona’s Co. v. North Carolina concur- Nat'l Assurance Ariz. 63 P.3d 1029 Life Ass’n, 455 Health Ins. Guar. proposition & Accident & ring opinion cites Hullett for the 102 S.Ct. 710 n. argument should U.S. that a statute of limitations added). (1982) It is on a L.Ed.2d 558 a collateral attack not be considered purview of the Utah judgment purposes therefore within previously entered judgment was en- Although default the Florida judgment entered default. 3. The Florida was transfer, spec- precludes further personal repre- it tered after served as the Jeanne's half-sister validity hypo- of a court about the appeal taken ulation this estate. No sentative of Robert’s of limitations defense. thetical statute and it is now final. from that reasonably final equivalent courts to review the of a ceive value for the properties. sister state. See id. 25-6-6. important 19 It is to note that Hullett is A. Utah section 25-6-6 Code viability an Arizona case that addresses the insolvency The debtor’s and evidence judgment. of an Arizona After set- default reasonably equivalent value was not ex- rationale, ting Supreme forth its the Arizona changed properties necessary for the are Court remanded the case the Arizona trial establish a fraudulent under section transfer underlying court to ascertain when the §Ann. 25-6-6. Utah Code 25-6-6. Under Hullett, accrued. See 1035. Con- section, Robert’s actual intent is not case, versely, in dealing our we are with a question relevant to the of fraudulent trans- judgment. Full Florida Not does the fer, which the concede them brief. require recog- Faith and Credit Clause us Section 25-6-6 states: judgment, option in nize the but we have no (1) A obligation transfer made or incurred our case to remand the case to Florida for by a debtor is fraudulent as to a creditor result, proceedings. although further As a whose claim arose before the transfer was Supreme Arizona Court Hullett was obligation made or the was incurred if: judg- able to delve into and attack a default (a) court, ment entered in its own lower we are the debtor made the transfer or in- liberty obligation not at to do so in receiving this matter. There- curred the without fore, adopt reasonably concurring opin- equivalent exchange we cannot value approach ion’s obligation; here. for the transfer or

(b) the debtor was insolvent at the time or became insolvent as a result of the II. Fraudulent Transfer obligation. 20 Under the there are two dis- A transfer made a debtor is fraudu- tinct avenues under which a claim for a lent as to a creditor whose claim arose (1) may fraudulent transfer if be asserted: before the transfer was made if the trans- the creditor’s arose or the before after fer was made to an insider for anteced- transfer, pursuant to Utah 25- Code section debt, ent the debtor was insolvent at the 6-5, or the creditor’s claim arose before time, and the insider had reasonable cause transfer, pursuant the to Utah Code section to believe that the debtor was insolvent. 25-6-5, §§ 25-6-6. Code Arm. See Utah -6. Id. provides Section 25-6-5 the debtor’s may “insolvency” actual intent A finding be determinative estab- nec is lishing essary whether a transfer is un- fraudulent before fraudulent transfer can be 6—6(1)(b) § der the UFTA. See id. 25-6-5. Under established under section of the 25— 25-6-6, 6—6(1)(b). § section the debtor’s actual intent is UFTA. Id. A transfer the 25— if, alia, irrelevant and the is on is focus whether the debtor fraudulent inter “the debtor “reasonably equivalent debtor received val- was insolvent at the time or became insolvent properties obligation.” ue” for the transferred as a and wheth- result of the transfer or Id. Fenleys argue er the debtor is “insolvent at the time or The fact that “[t]he [Rob not, itself[,] became insolvent as result of the transfer.” had no assets did make ert] §Id. 25-6-6. him ... insolvent because needed [Robert] no in his assets circumstances.... He had no ¶ 21 The trial court discussed the elements obligations physical creditors nor and his of both avenues and found that Robert had met, being if meagerly, by needs were fraudulently actual proper- intent transfer facility in which he was incarcerated.” The pursuant ties to section 25-6-5. See id. therefore, Fenleys, argue that Robert was “[ejven § 25-6-5. The court also found that apply. solvent and that the not UFTA does intent, considering without Robert Tolle’s disagree. We property transfer of the ... was fraudulent” pursuant to section 25-6-6 it because ren- Under the lev “[t]he insolvency necessary dered Robert insolvent and he did not re- ofel to meet the statute establishing actual intent. Sec- insolvency bank- factors for in the requirement 25-6-5(2) that: showing tion further states merely a that the ruptcy sense but lia- to meet party’s assets are sufficient ..., To determine “actual intent” consider- they Meyer v. Gen- become due.” bilities as factors, may among given, ation be other (Utah 1094, 1096 Corp., 569 P.2d eral Am. to whether: added). 1977) prove order (a) obligation to an the transfer or was “balancing liabili- insolvency, a of assets and insider; “[o]nly accomplished” ties must nonexempt debtor’s entire showing that the (b) possession or retained debtor pay are insufficient property assets property after control of the transferred insolvency.” to the level of his rises debts transfer; Sales, Deamer, Inc. v. Furniture Mfrs. 1984) (footnotes omitted). (Utah 398, P.2d (d) or ob- before the transfer was made properly The trial court made this incurred, ligation was the debtor had been As Robert transferred “all determination. suit; or with sued threatened ... held in name” property [his] (e) substantially all the transfer was of substantially or “the of all transfer consisted assets; assets,” the debtor’s any moderate debt all of [Robert’s] liability result in Robert’s insolven or cy. civil action Florida resulted Jeanne’s (h) the value of the consideration re- $1,704,610.75,plus

in an actual reasonably equiv- ceived the debtor was alone, although not This debt re interest. asset alent to value transferred later, a claim until duced incurred; obligation the amount of 25-6-2(3) that rendered Rob under section purposes (i) ert for of section 25-6- insolvent was insolvent or became debtor 6(1)(b) UFTA. Utah Code shortly insolvent after the transfer was 25-6-2(3), —6(1)(b). incurred; §§ As result obligation made or the [and] Mary Ralph, properties transferred to shortly (j) the occurred before debtor. was rendered an insolvent Robert shortly debt was after substantial ¶ 26 Therefore, reasonably equiva as no incurred; exchanged properties lent value was 25-6-5(2). Furthermore, actual fraud- insolvent, finding the court’s and Robert was [by] may pres- ulent intent be “inferred proper fraudulently transferred Robert ‘badges of fraud or of ence of certain indicia dispositive. ties section 25-6-6 is under Wilmarth, Dahnken, Inc. v. fraud.’” (citation omitted). (Utah 1986) 420, 423 P.2d B. Code section 25-6-5 Utah “badges from which actual of fraud” These ¶ Even if it could said that include, alia, inferred, may be inter a intent claim Robert’s transfer Jeanne’s arose after “(1) continuing possession and evi- debtor consti properties, of the transfer would still property dencing perquisites of owner- tute a fraudulent transfer under section 25- conveyed all ship having formally his after Ann. 25-6-5. This 6-5. See Code convey- making in the property, interest transfer section establishes a fraudulent (3) mak- anticipation litigation, ance in of “the claim arose exists whether creditor’s conveyance family without ing a to a member was made or the or before after Id receiving fair consideration.” incurred,” (emphasis add obligation was ed). Fenleys argue the evi provides a transfer The 25-6-5 Section finding for a of actual dence is insufficient is “if the debtor made the transfer fraudulent under 25-6-5. We obligation ... fraudulent intent section or incurred the with actual hinder, court found that Robert’s delay, disagree. credi trial or intent defraud added). badges of fraud included all of the transfers tor the debtor.” Id. debtor, section, transfers consti indicated above and that the Insolvency of under this determining the factors for many tuted several of determinative and is one (Father) repre- intent under section 25-6- Robert Tolle’s 2001 transfers actual fraudulent 5(2).5 specifically that: trial court found sents collateral attack on Tolle’s 2004 Flori- judgment. disagree I da that threats of inferred from Actual intent could be litigation alone will establish creditor status un- transfer was insiders facts that the Rather, prefer in the tort context. I would statute, Robert retained con- [that] der the rule that creditor status based on unreal- transfer, property after the trol over begins tort ized with the accrual of the been threatened with Robert had [that] long cause of action and continues as as the transfer, trans- prior [that] suit to the tort claim is valid and enforceable. I would substantially all of fer consisted of all also hold that such creditor status terminates assets, there was no consid- [that] [his] time-barred, when the tort becomes [given or for the transfer. received] eration and is not resurrected even if a on ¶ 29 record, reviewing agree we subsequently through the tort obtained with the trial court’s determination Rob waiver or default.1 ert actual fraudulent intent to transfer had analysis 34 This is consistent with exist- Thus, properties. regardless of whether states, ing caselaw from other and I would Jeanne’s claim arose “before after the adopt reasoning of those cases as we made,” transfer was Robert’s transfer of develop Utah law in this I area. also believe properties also constitutes fraudulent con that, Fenleys properly had the raised these veyance under section 25-6-5 the UFTA. below, they may issues with the court have §Id. 25-6-5. been able to establish that Tolle was not Father’s creditor 2001 because her 1973 CONCLUSION expired tort claim had and was time-barred ¶ 30 purposes For Jeanne finding under Florida law. Such proper was a creditor who had a claim to the likely have rendered Father’s transfers not Mary Ralph. ties Robert transferred to violative of UFTA. See Utah Ann. Code properties Robert’s transfer of constitutes §§ to -6 25-6-5 transfer under both fraudulent Utah Code ¶ Nevertheless, I write concurrence sections 25-6-5 and 25-6-6. See Utah Code rather than dissent because I do not believe result, 25-6-5, §§ As a the trial -6. presented that these issues were to the trial properly voided the transfers. court, accordingly they pre- were not ¶ Accordingly, we affirm. served for review. ¶ 32 I B. CONCUR: CAROLYN Arising I. Creditor Status McHUGH, Judge. from Tort Claims THORNE, Judge (concurring in the majority opinion 36 The affirms the trial result): court’s determination that Father’s insolven disagree legal cy with several and intent at the time of the transfers applied by my conclusions reached and col rendered those transfers fraudulent as to leagues. Specifically, disagree 25-6-5(1)(a), §§ I with the Tolle. See Code Ann. Utah 25-6-6(1)(b). majority’s challenge insolvency only decision that a to Jeanne Under (Tolle) in Tolle’s creditor status relation to renders a transfer fraudulent as to creditor Fenleys argue they February parties 5. The are not "insiders” 2002. The do not contest this 25-6-5(2)(a), as set Utah finding forth section see majority opinion adopts and the it as fact. 25-6-5(2)(a), they § Code Ann. because are not filing appears The actual dale of the lawsuit only relatives of Robert. As this is one of several February have been a conclusion I reach intent, determining factors for actual fraudulent due to the case's "03” case number and the fact "insiders," even if are not the evi- that it references Father’s June 2002 death. I do dence was sufficient for the trial court to find apparent my not see how this error affects either actual fraudulent intent. analysis majority’s, solely or the and I mention it accuracy. in the interest of matter, tangential aAs I also note that the trial court found that Tolle filed her Florida lawsuit in judgment unquestionably against valid Fa- existing claim at the has an if that creditor 25-6-6(1) estate, undisputed § See id. ther and his and it is time of the transfer. judgment “whose claim only to creditors Tolle can collect that (applying made”). question For remaining arose before the transfer assets the estate. The opinion, I augment articulated later this the reasons before us is whether Tolle can Fa- intent to defraud by forcing reconveyance believe that actual ther’s estate from 6—5(1)(a)must be directed under section Fenleys.2 invokes Utah law to do .Tolle 26— grantor at the so, who is a creditor of the certainly one purview and it is within our challenged According transfer. time of the relationship whether the 2001 be- determine plaintiff ly, is on the UFTA the burden and Father tween Tolle constituted credi- timely status prove appropriate and creditor relationship tor-debtor under Utah’s UFTA. theory employs, whatever of relief she under question A Utah decision on this would not may challenge any defendant and UFTA validity judgment, diminish the of the Florida required creditor status as an avenue de give full faith and Utah could still and credit fending the suit. judgment to that to the extent that Tolle attempts against existing it to enforce assets Fenleys’ Argument

A. Not an Attack of Father’s estate. See National Loan In- Judgment on Florida vestors, Givens, L.P. v. 952 P.2d 1998) (“[T]he (Utah Foreign Judgment Act majority opinion’s characteriza preclude any original claim that is does Fenleys’ of limitations tion of the statute independently available under the laws of attack on Tolle’s argument as a collateral plaintiff] this state. did not ask the rejected [The judgment in circum has been district court to enforce a this In Hullett v. stances similar to case. Rather, plain- Cousin, (2003), issued another court. [the Ariz. 63 P.3d 1029 property seeks to avoid transfers of rejected tiff] argument an that a chal may rights putative judgment affect its as a lenge to creditor status at the time of a creditor. The Florida action is relevant represented a collateral attack on plaintiff’s [the to the extent that it evidences seeking that the creditor was putative creditor.” status as to enforce under Arizona’s version of UFTA. added)). rejected argument because The court “solvency is determined at the time of the Upon B. Creditor Status Arises

transfer,” judgment. not at the time of the Accrual of a Tort Id. at 1034. Utah Code section 25-6-12 di applied rects that Utah’s UFTA “shall be ¶ Addressing Fenleys’ challenge to general purpose construed effectuate requires Tolle’s 2001 creditor status an anal- respect uniform law with to the make ysis of Tolle’s 1973 tort claim rendered when subject chapter among enacting of this states purposes. for UFTA her it.” Ann. 25-6-12 Pur Utah Code majority opinion holds that Tolle’s creditor 25-6-12,1 suant to Utah Code section believe began threatened suit status when she rejection follow Arizona’s that we should against Father on the 1973 claims. Howev- argument the collateral attack in order to er, Oregon the Utah case cited and the cases goal further stated of interstate con UFTA’s adopts it all address creditor status sistency. v. Brad- context divorce. Bradford ¶¶ 15-16, Hullett, ford, App upon 1999 UT 38 Even without reliance Adamson, 887; v. 273 Or. Fenleys’ argument of limitations see also Adamson statute (1975); Rothchild, the 2004 541 P.2d 460 Weber appeal simply on attack on (1887).3 P. believe the 2004 15 Or. judgment, collateral or otherwise. The majority opinion perhaps point also cites to United States Although irrelevant to the at 3. The 2. Green, (3d Cir.2000) (cited hand, in 37 noting v. 201 F.3d 251 it worth that the are seems estate, Conveyancesand privies Am.Jur.2d Fraudulent to Father or his were not Transfers suit, (2001)), support oppor- for decision that mere parties 3 as its to Tolle’s Florida and had no litigation status tunity litigate will establish debtor a of imitations defense in threats of statute a valid cause of action. I even in the absence of a Florida court. 72 marriage long involving rule in a and continue forward so as the appropriate

more cases begins that creditor status as marriage general tort claim is a rule that exists. Under of action accrues. soon as the cause status arises on the accrual of a creditor claim, spouses automatically be would case, ¶40 Granberry An UFTA Alabama throughout other deemed creditors each Johnson, (Ala.1986),appears 926 v. 491 So.2d marriage. the duration of their directly point to this issue. Gran- to be on Bradford’s rule, “recent of divorce” id. at threat[ ] berry that debtor-creditor rela “[t]he held result, wisely my opinion, by tionship by judgment, but avoided this is created wrong produces injury; and it finding spouses which that creditor status between act, wrongful is the date of the not the date only upon litigation arises notice divorce judgment, or of the filing of the of the suit resulting property and its division is reason- rights par which the status and of the fixes ably imminent. “Hence, tort claimant is ties.” Id. at 928. context, In the tort an accrual rule creditor, alleged tortfeasor and the protect respecting would tort victims while Martin, Id.; In re 145 debtor.” see also “right payment” requirement. UFTA’s (Bankr.N.D.Ill.1992) (holding B.R. 949 rule, example, negligent For under a notice liability compensatory damages for another, grave injury might driver cause tort). commits the arises time debtor but a transfer the driver intended to Granberry analyzes Alabama’s version of protect resulting assets from the tort claim nearly identical to Utah’s Hullett, long pre it version, deemed inviolate so and as with believe that Granberry pursuant ceded notice of the victim’s intent to sue. An we owe some deference loophole, 25-6-12: accrual rule would Utah Code section See Utah eliminate this §Ann. simplify litigation by Code 25-6-12. replacing and would easily disputed concept of notice with a fixed adoption 41 I view the of an accrual rule accrual, easily date which is more ascer expanding, limiting rather than or overrul- time, tainable most cases. At the same ing, expressed rule the notice Bradford. prevents person being such a rule from ¶ 16, App 373 at See 1999 UT merely empty rendered a creditor on or in and the eases cited therein dealt Bradford with creditor status between litigation, valid threats of but instead re spouses based quires the actual existence of a valid tort spouse’s on one threat of See id. at divorce. ¶¶ validity claim. A and accrual date of the 15-16. cause of action divorce might to accrue on the date of a claim would be be said established either direct Green, majority’s quote appellees believe that the from have cited First National Bank case, important (1968). Hoffines, federal tax enforcement omits Pa. A.2d 458 context, however, actually complete quote Hoffines, and that a more refused to set aside a con- supports my position: veyance plaintiff as fraudulent because the conveyance. not a at the time of The United States is considered a creditor liability plaintiff Defendant's to the arose from obligation pay "from the date when the (execution note) defendant’s conduct of a accrues,” essentially April income taxes on conveyance which occurred was made. year following year question. the tax after case, appellee liability In this Geist's was based Mary, F.Supp. United States v. St. (negligence on her conduct in the motor vehi- (E.D.Pa.1971). Further, Pennsylvania Su collision) convey- cle which occuned preme Court has found that awareness of a before therefore, Appellant, ances were made. case, in this legal probable action a debtor amounts convey- awas creditor at the time of the purposes determining solvency. to a debt for Geist, 73, 76-77, ances. See Baker v. 457 Pa. 321 A.2d Geist, 634 (1974). Baker v. 457 Pa. 321 A.2d face, Mary, And in United States v. St.

Id. at Green stands for the 257. On then. that, explained application of an accrual proposition regard at least with to tax liabil- liability merely put govern- rule to tax ity, federal upon creditor status arises the accrual of the position private upon any ment in "the same as that of a obligation pay rather than threat of (E.D.Pa.1971) F.Supp. litigation. creditor." 334 omitted). (quotations interestingly, and citation More the two cases cited in Green together, suggest an accrual rule than a Taken I believe that Green and its rather notice Pennsylvania support clearly adopts cited accrual rule. The cited case authorities rule rather the accrual rule in the context of tort claims: than a notice rule.

73 case, in an that is in fact the the would collaterally, such as action litigation or to statutes have been entitled invoke those to under UFTA. challenge of Tolle’s creditor status as the reasons, support I would 43 For these date her claim time-barred. became whereby of rule adoption the an accrual action, plaintiff In a is enti 46 UFTA debtor status accrues creditor and UFTA only if to relief she can establish creditor tled action in favor of one along a cause of with respects. plain in status several UFTA against another.4 tiff herself must current claim have some the Ann. against grantor, see Utah Code Not II. A Time-Barred Claim is Valid -6, only §§ 25-6-5 to as it is the need to Support Will Not Creditor and satisfy justifies revesting that claim that the Status Under UFTA property grantor. Laidley in v. the Hei to facts Applying 44 the accrual rule the Cir.1963) 592, (9th gho, (stating 594 326 F.2d itself, not, by of this case would alter contemplate that “the statute does outcome, as both the trial court and the [reconveyance] where, absurdity granting of majority opinion judgment Tolle’s 2004 treat here, against judgment as cannot be obtained merely the of her 1973 cause of as reduction prop party whom the transferred judgment. action If Tolle’s 2004 to revested”). erty plaintiff If the could be has merely the direct reduction of the 1973 claim, currently no enforceable she cannot claim, and the 1973 claim was existence creditor’s relief under UFTA. See obtain judgment, tri- through from accrual then the -6; §§ to Utah Code 25-6-5 see also majority appear al court and to be 594; Laidley, 326 F.2d 592 at State Rio De of correct that Father’s transfers violated both Inc., Sons, v. Janeiro E.H. Rollins & 299 insolvency and intent theories UFTA. (1949) 363, 299, (stating 87 300 N.Y. N.E.2d (4) 25-6-2(3) to See Utah Code Ann. failed, “after fixed six- B had within the claim,” one “has a (defining a creditor as who time, contract, year to sue on his he was right payment, as to and claim “a whether A, all, had thereafter no creditor of no right judgment[, to or not the is reduced right position contesting as his former etc.]”). his divesting act of himself of as- debtor’s Jacob, sets”); v. N.W.2d 185 Jahner 515 troubled, however, by as I am (N.D.1994) (stating that “claimant loses her sumption 1973 of action that Tolle’s cause status as creditor her continuously from existed 1973 2004 transferor becomes barred the statute of her a creditor at the time of the rendered limitations, statute, or a non-claim other merely 2001 transfers because default method”). Goldberg, & Co. v. But see Bowen judgment ultimately resulted. I view Tolle’s Demick, Cal.App. 247 P. 77 263-64 arising 2003 as out (1926) (holding that statute of limitations de- misdeeds, rather default than Father’s may personal to the debtor and fense proper analysis ad and believe must a fraudulent be asserted transferee “right 1973 claim was a dress whether the action). conveyance payment” i.e., the time enforceable —at — case, plaintiff In this I believe that to force 47 When a UFTA seeks transfers. insolvency theory, potentially reconveyance claim was barred as on an she Tolle’s 1973 the claim she seeks applicable law Florida stat must also establish that matter of to, satisfy prior and remained con- If arose utes of limitation at time of transfer. Evans, tus); Zuniga P.2d v. 87 Utah that two other Utah cases touch on But note issue, suggest, (1935) (finding prior seem without both definition of act's holding, directly proper that the date accrual during pendency of tort was satisfied filing of creditor is the of a lawsuit. See status litigation prior judgment). even Walker, v. 1141 & n. McGoldrick text, expressed in the well For reasons 1992) (Utah “existing (applying subsequent language the broad of UFTA and reason- prior language of Utah Uniform creditors” Johnson, ing Granberry So.2d suggesting Conveyances Act Fraudulent (Ala.1986), lawsuit, that creditor status I would still hold filing mere existence of rather than note, simultaneously "existing” a cause of action. promissory triggers accrues with creditor sta- until, plaintiff need not show that the defendant tinuously the date of the chal- valid particular, § to her claim in Code Ann. 25- intended defeat lenged transfer. See Utah Court, claim have Supreme applying and indeed her need even 6-5. The Arizona at time of the defendant’s trans- recently concluded that a existed Arizona’s Nevertheless, fer. id. at the time of the at the date of the See claim that is time-barred transfer, must claim and cannot be defendant’s the defendant is not a valid insolvency existing to an grantor’s at have intended defraud credi- used to establish the tor, i.e., pay- “right who had a to transfer. See Hullett v. someone the time of the Cousin, § ment” at the time of the transfer. 25- 204 Ariz. 63 P.3d 6-2(3) “creditor”).6 (4) (defining Again, (determining that a claim “must be analysis at the Hullett’s that a time-barred claim is disregarded if found to be time-barred transfer”).5 analysis support not a claim under UFTA and will not The same time of the recovery similarly preclude under UFTA creditor status indicates to me that 25-6-6, beyond requires person’s place actual intent to assets Utah Code section attempting an accuser plaintiff claim that the is the reach of will not render satisfy actually pre-date challenged transaction fraudulent the accuser’s claim legal nullity at the time of the transfer. is transfer. Hullett, Finally, plaintiff proceeding plaintiff challenged a UFTA (Suncrest) theory partnership’s on an “actual intent” under Utah distribution of as 25-6-5(1)(a) dissolution, alleging must establish that sets at its 1994 that he Code section property ac at the transferred with had claims Suncrest time defendant dissolution, “hinder, delay, any tual or defraud that Suncrest knew of those intent to claims, actually of the debtor.” Utah Code and that Suncrest was either creditor added). 25-6-5(1)(a) § A UFTA insolvent or rendered insolvent his claims. hinder, quotation delay, 5. citation to a claim tent of James 'to or defraud’ Pen The this refers "unknown, unasserted, added) ny." (emphasis (quoting the court as Utah Code Ann. described Cousin, 6—5(1)(a))). presumably § v. time-barred.” Hullett 25— interpret "any 204 Ariz. 63 P.3d The One could also creditor" however, subsequent analysis, 25-6-5(1)(a) relies sole- language court's of section to mean ly holding. See on the time bar issue to reach past, present, future creditor. Such an inter id. at 1032-35. pretation facially appealing, particularly light legislature’s "any” of the use of the modifier and the clause "whether the creditor’s claim 6. to be construed lib am aware UFTA is erally purpose remediating arose before or after the transfer was made or to effectuate its obligation fraudulent behavior towards creditors. See Ma was incurred.” Utah Code Ann. Assocs., Inc., Nevertheless, 25-6-5(1)(a). Neways, App § cris & Inc. v. 2002 UT I believe that a end, 406, 16, 60 P.3d 1176. To that there are reading precludes of the statute as a whole such ways at could read Utah Code least two one interpretation. encompass section 25-6-5 to transfers made or after” clause in section 25-6- "before with intent to defraud one who is not a 5(1) clearly applies only particular to the claim However, at transfer. creditor the time of the plaintiff attempting that the UFTA to collect interpretations my neither of these is tenable in action, through her UFTA not to the claim or opinion. creating "any claims creditor” status re (1)(a). quired to establish intent under subsection First, "any one could read creditor” in section Moreover, legislature's inclusion of the "be 26-6-5(1)(a) solely by to be determined 25-6-5(1) language fore or after” indicates grantor’s subjective interpre belief. Under this that, language, modifying without such the term tation, grantor defrauding a if a believes he is claim, means one who has a rather creditor than transfer, by making a then the transfer is will have a one who has or claim. See Utah solely fraudulent as to all future creditors be 25-6-2(4). Using proper, pres Code Ann. grantor’s approach cause intent. This bad "creditor,” ent-tense definition of a transfer is rejected by appears previously to have been 25-6-5(1)(a) only Brockbank, fraudulent under section if the where we de in Brockbank hinder, grantor's delay, intent is or defraud an termined that even actual fraudulent intent will creditor, i.e., existing someone who has not render a transfer voidable if the transfer does right payment at the time of the transfer. purview. within UFTA’s See not otherwise fall ¶¶ 11-15, ("We Accordingly, I would hold that mere intent to App P.3d 990 2001 UT claim, applicable once had a or who will defraud one who [that UFTA] thus conclude is not future, right redemption have a claim in the does not render James’s transfer of his actual, 25-6-5(1)(a). Cheryl, notwithstanding any subjective in- transfer fraudulent under section plaintiff had loses UFTA creditor status when her tort sued time-barred, misrepresen- and that an al- negligent his 1989 becomes on Suncrest disregarded pur- leged a default claim must be in and obtained tation claims rendering a poses the of transfer fraudulent if it judgment in 1996. See id. have under Arizona’s ver- is established to been time-barred at plaintiff sued Suncrest of As to applied recover assets distributed the time that transfer. this sion of UFTA to case, preclude id. The a Tolle’s at See trial such rule would re- Suncrest dissolution. insolvency summary covery theory an or judgment in favor of on either granted court theory a lack of evidence of intent actual intent the had estab- Suncrest due to if faith, defraud, claim insolvency, or and be- lished that Tolle’s 1973 was time- to bad by 2001. plaintiff failed to raise his claims barred cause the until the distribution. with Suncrest after ¶ questions 52 The in this relevant case appeals An court re- See id. intermediate then claim was become whether Tolle’s time- court, reasoning trial that a claim versed the transfers, of barred at the time Father’s 2001 the of can render existing at time dissolution what, any, if the effect claim partnership whether a insolvent in had on Tolle’s status as or not. id. has been asserted See ¶ Supreme granted Court 50 The Arizona Potentially III. Tolle’s Claim an unknown and review “to examine whether by 2001 Time-Barred claim must be con- presumably time-barred determining partnership in if a sidered ¶ Tolle’s claims Father 53 When to when it transferred its assets its insolvent in Florida’s statute of limitations arose partners.” Id. at 1032. The court limited appears years. for torts to have been four knowledge of determined Suncrest’s Lindabury, Lindabury v. See So.2d under a UFTA insolven- was irrelevant (Fla.Dist.Ct.App.1989). Assuming 1117-18 proceeded cy analysis, see at to id. minority, tolling for Tolle’s claim would have detail. the time bar issue some address years become four after time-barred The court stated: majority she reached in 1976. More recent- to principles inform our answer Two ly, to allow Florida amended statute abuse First, a trans- question. core to set aside years up to sue to four after either victims fraudulent, fer there must have been a custody discovering or leaving the abuser’s transfer, at the time of the valid claim injury, years reaching or seven after Second, meaning right payment. 95.11(7) § age majority. Fla. of See Stat. partnership whether claim rendered applied, If this statute were be as of the date of insolvent determined time-barred Tolle’s claim would have become transfer, case, date the in 1983. partnership dissolved. argument that Tolle’s the statute omitted). (citations Applying Id. 1033-34 was tolled Father’s limitations absence determined “a principles, these the court may misstates Florida law and from Florida ‘right not is time-barred is supported by presented not the evidence be ” not payment,’ and as such does constitute correctly asserts that the this case. Tolle Id. at 1034 “claim” under Arizona’s UFTA. period is tolled the “[a]bsence limitations (citation omitted). The remanded the person to be sued.” Id. from the state of development matter for further factual 95.051(1)(a)(2005). However, neglects she plaintiffs 1989 claim determine whether tolling apply point out that this “shall was in fact at the time time-barred by publication process service service id. at 1035. 1994 dissolution. See to confer can made in a manner sufficient uniformity UFTA’s interstate Given jurisdiction sought.” relief grant the 25-6-12, §Ann. provision, see Code § 95.051. follow Hullett and believe that we should in the record 55 The limited evidence cause of action hold that time-barred suggests issue that Father bearing on this under that a tort claimant a claim service,7 addressing post- the issue of may amenable to 58 Cases have been seemingly subject humous claim revival in this context are un- adequate service rare, derstandably they require jurisdiction for torts com- the con- Father to Florida entry vergence of Florida. of both the of a on entirely within state mitted Tolle, seeking a time-barred claim and a contested transfer person to avoid the And as the limitations, occurring after the time bar before the would have the burden but statute of entry judgment. A contrary. Landers v. handful of older establishing the (Fla.1979) (“[T]he however, Milton, cases, great address the issue with 370 So.2d clarity. example, Harper limita- v. Raisin party seeking escape the statute of For to Co., proving Supreme the burden of cir- Fert. the Alabama Court stated tions must bear statute.”); see that: cumstances that would toll Blood, P.2d Tracey v. 78 Utah 3 creditor, by bill is to a [T]he set aside (1931) (“Apparently all are courts fraudulent, conveyance claimed to be and it is conceded that agreed, and this ease if, made, conveyance at the time the was upon plaintiff plead to the burden was the statute had barred the [of limitations] prove facts sufficient to toll the statute debt, liberty so that the debtor was at to limitations[.]”). disregard convey proper- the debt and ty, conveyance was not fraudulent. course, litigated was 56 Of none seeking Hence a bill to set it aside is speculate I as to whether

below and will equity. without actually or when Tolle’s 1973 claims applicable time-barred under have become Ala. So. added). my purposes to Florida law. suffices for It ques- that the statute of limitations establish complete analysis 59 The most of the definitively tion has not been answered by issue of revival of creditor status subse- Fenleys, favor of Tolle or the and that either quent judgment from comes the Texas Su- question, properly the statute of limitations preme Hodges Taylor Court’s 1882 deci-

presented, may determinative of have been sion, addressing conveyance allegedly made this suit. to thwart collection on note. 57 Tex. (1882). Despite length, provide 197-98 Judgment Did Not Create IV. Tolle’s analysis entirety: the court’s revival in its as of 2001 Claim or Creditor Status creditor, that a authorities are who conveyance was seeks to set aside a of his 57 Tolle’s Florida default fraudulent, against clearly “right payment” Father debtor as must have a claim issuance, such, supports it can If as of its and as which be enforced. his be limitation, by September after 2004. barred he is not a creditor Tolle’s creditor status demand, suggest, extremely problematic It how who can enforce his and therefore ever, judgment might successfully that the 2004 somehow is not one who can assail as posthumously conveyance by 1973 claim for fraudulent a for- revive Tolle’s made his transfer, purposes analyzing Father’s 2001 mer debtor. Yet should he sue on this claim, plead it established that the and the debtor indeed were limita- fail tion, by may judgment unques- 1973 claim 2001. I do he obtain a was time-barred majority opinion tionably not believe that the makes valid as between him and the if, barred, suggestion, being I think that the claim such but reason debtor. So by ably attorneys argue creative could for this sees fit to revive it a written debtor result, acknowledgment justice particularly under the fraudulent in of its and a writ- 25-6-5(1)(a) it, theory promise pay tent found in section ten the debt becomes upon as the creditor relied the trial court below. See once more valid between 25-6-5(1)(a). and debtor. In each ease it is the assent Utah Code Ann. 7. While that she could not locate testified that Father’s relatives had lived in Ohio Tolle testified years, throughout years "everybody Father she also testified and that knew where for 200 shortly inquiring she as did locate him after he was.” Mary Fenley to his whereabouts with relatives. [Father], [Tolle,] against as acquiescence th[e] of the former debtor but former capable Hodges, of enforcement. of [Father].” results in a 57 Tex. at express And, In the latter ease that assent the “true date of in- [Father’s] — implied. it is in the former debtedness” to Tolle as it relates ato UFTA Before alleged claim ivas revived the judgment.” claim would be the “date of the fraudulent conveyance binding omitted). as between the (quotations of the grantor grantee, title good, against grantee was No Relief if V. UFTA Tolle’s 1973 Claim against grantor, but as this former creditor Was Time-Barred grantor. being title thus com That ¶ 61 If Tolle’s 1973 claim was time-barred them, plete it is not believed 2001 and her 2004 is treated as impaired by it could be affected independent pur a new and debt for UFTA between them to which the transaction poses, Fenley Father’s 2001 transfer to could date grantee party. is not a The true not be deemed fraudulent under UFTA. The promise, the new or the the indebtedness is insolvency theory upon by relied the trial being subsequent

judgment, and these majority opinion court and the would be un creditor, conveyance, the under the the available, insolvency theory as UFTA’s can state, prevailing rule in this is not ordi only by be invoked a “creditor whose claim convey narily impeach can one who arose before the transfer.” Utah Code Ann. ance. 6—6(1)(a). § “claim” Tolle’s would be her 25— discharge of maker [note After judgment, despite to nexus Evans, D.M.] holder Sand- Thomas] [note only right payment 1973 claim is to of only against erlin could enforce his claim Hodges, the date of its issuance. See 57 Tex. Evans, him and in our assent (“The at 199 true date of the indebtedness rightly opinion the court held that Sander- judgment^]”). ... would be the only rights lin could claim the of a creditor impeaching purpose for the the deed to legal 62 The same framework could also I. Evans “as of the date of the Charles preclude any finding that the 2001 transfers judgment.” theory. violated UFTA’s intent See Utah added) (citations omit- 25-6-5(1)(a). Id. at 199 § Code Ann. If Tolle’s 1973 ted); Lopez’s Bergel, see Heirs v. 12 La. also no was time-barred she had (1838) “if, (stating at a time right payment to on the claim at the time of Gregorio Bergel legal was under no when Thus, pro the transfers. Father’s intent to obligation pay to the note recited in the litiga tect his from Tolle’s assets threatened defendant, judgment, conveyed to he tion on the 1973 cause of action8 could not plaintiffs right question to have no the sale” implicate alleged UFTA because the debt though Bergel subsequently even reaffirmed hinder, delay, that Father intended to or note). the time-barred longer legally defraud was no enforceable longer a claim point and was therefore no under 60 find these cases to be on 25-6-2(3) (defining § a claim persuasive despite age. Adopting their their UFTA. See id. analysis, right payment”). Accordingly, as “a I would determine Tolle’s if then Tolle’s time-barred 1973 claim would be irrel 1973 claim was time-barred analysis. of Father as of that evant to the UFTA intent Hul Tolle was not creditor Cf. Cousin, Ariz. liberty disregard was “at lett v. date and Father convey Harper, (determining that a claim “must property.” the debt and purposes] disregarded such circum- be UFTA found [for 48 So. 589 at 592. Under stances, at of the trans Mary Fenley received to be time-barred the time the title (“The fer”); Hodges, 57 Tex. at 199 true date “good, in 2001 would be Nevertheless, 5(2). potentially disagree mistaken with either the court or Father's I do not trial analyses majority opinion belief Tolle was a creditor cannot convert her in their of Father's actually have of Father's transfers into a UFTAcreditor if she did not intent. The circumstances "right payment” many from Father at the time of bear of the hallmarks of actual intent to § the intended fraud. defraud a creditor. See Utah Code Ann. 25-6- se, judg- Fenleys, acting pro stated in the ... 66 The would be of the indebtedness ment[.]”). why question answer that “Defendants their anywhere there is no date to be found on [the if Father’s intent had Similarly, even complaint].... Defendants feel [T]he Florida subsequent Tolle’s payment on been to avoid purposely that the date has been withheld or claim, of the 1973 instead to conceal the utter untimeliness obliterated fraudulent would still not have been transfers also assert- its submission.” theory Tolle was not a on an intent because ed that Father’s whereabouts were well time of the transfers. See creditor many family known to of his members and (allowing grant- 25-6-5 Utah Code existing being kept They or’s intent to defraud were not secret. did regard to fraud without whether specifically establish assert a of limitations statute de- claim arises plaintiffs before fense, UFTA although their co-defendants stated in transfer). Additionally, is no there after their answer that Tolle’s claims were “barred suggest Father’s support in the record applicable statutes of limitation in judg- some future default intent to defeat Fenleys’ answer Florida and Ohio.” court found that Father ment. The trial summary general request contained a “claim,” Tolle’s which the intended to defeat judgment, responded which Tolle never just mean her court had determined to and the trial court never ruled on or ad- litigation over his 1973 threats actions. complaint dressed. And Tolle’s Tolle’s 2004 default was not fore- indicating showed facts on its face that her transfers, seeable at the time of the may Florida have been time-barred at at all if judgment would never have occurred the time of Father’s transfer. Father had lived to answer Tolle’s Florida successfully ¶ complaint and had asserted a Fenleys presented pre- 67 The no more statute of limitations defense.9 A pleadings. trial bench trial was held with- opening out statements on 2004. October ¶ reasons, I do not 64 For these view Tolle, Fenleys, the and three other defen- judgment reviving her Tolle’s 2004 default as only dants were below the witnesses. Tolle claim of or otherwise influenc- on admitted cross-examination that her Flor- analysis ing a UFTA of the 2001 transfers. ida had been obtained after Fa- Fenleys The Did Not Preserve the VI. appear ther’s estate failed to and defend that Issue Statute Limitations action, i.e., it was at least a de facto default judgment.10 Mary Fenley that Fa- testified ¶ analysis Notwithstanding the entire family years in ther had had Ohio for 200 above, in I concur the result reached “everybody that knew where he was.” I can majority opinion I cannot because see how testimony no trial find other from the bench Fenleys preserved arguments be- these bearing low. on the 2001 status of the 1973 claim. fraud, analy- Hodges Taylor provides an additional actual or constructive. The creditor germane gets sis that I believe is to this issue: only into court virtue of the debtor’s assent, so, reasoning being charge is another course and that his of fraud There ground The on which hardly leads the same result. his seems debtor admissible. impeach a the creditor is allowed to fraudulent 57 Tex. 199-200 Father’s estate conveyance upon legal is that it is fraud his waived Florida statute of limitations defense rights. But where the creditor's claim by failing on his behalf to raise it. If Tolle’s becomes enforceable the assent of the debt- time-barred, claim was fact I would conclude or, would seem unreasonable to construe it equivalent that the estate’s waiver was the empowering at- that assent as the creditor to to, of, Father’s affirmative assent or renewal conveyance tack the debtor’s as fraudulent. Tolle’s claim. debt, The revival of a barred or the failure to plead discharge bankruptcy, could neither 10. Although the Florida was admitted of them have been intended to assent to such trial, appear as an exhibit at it does not in the very only by attack. The fact that it is vague appeal. pleadings record on Tolle’s are debtor’s assent that the claim is valid and judgment, referring only about the nature of the goes negative any right, enforceable far to "result[ing]” judgment. in a to her 1973 claim assent, growing charge out of that to make the (Utah 1983)). sen, argu- closing 669 P.2d “[I]f did not hear court 68 The reason, trial, litigant, for sees fit to allowing par- whatever at the instead ments counsel, rely pre- himself he must be findings conclu- on proposed to submit ties accept consequences of his mis- interpretation pared stating their sions Nelson, at errors.” 669 P.2d Fenleys’ The did takes and results. submission proper (em- (Hall, C.J., concurring dissenting) per- any findings or conclusions include not omitted). being phasis time-barred taining to the 1973 pre- stating merely that the “facts layperson acting as his or her While Jeanne Tolies [sic] cast a doubt on sented every attorney own “should be accorded con- according to Utah state as a creditor status may reasonably indulged,” sideration that be requesting that code 25-6-2” ¶ 3, Lundahl, I 2003 UT 11 uphold “[e]ven the transfers court Fenleys’ ignoring do not consider com- Tolle was in that Jeanne court determines arguments plete failure to address these be- a creditor.” fact low to a reasonable accommodation to Fenleys pro their se status. did not general issue of whether Tolle 69 The bring adequately their concerns before the at the time of the 2001 was Father’s creditor court, I clearly trial and thus cannot find error in preserved, as the trial transfers was ruling analysis given the facts and on this court’s law court conducted substantial However, Fenleys have ar- presented. made no effort were issue. appropri- gued plain exceptional error or cir- trial about the either to educate the court I clarify appeal, on and therefore limitations or cumstances ate Florida statute of argument. unpreserved their they invoking it defeat Tolle’s address were than attack status rather 2001 creditor testimony judgment itself. Without

Florida VII. Conclusion issue, the argument on the trial had conclusion, ma- believe Tolle’s 1973 no reason to decide whether court, jority opinion, as the trial as well might time-barred have been analysis employed an is inconsistent destroy might bar or whether such time existing applying with caselaw UFTA and Tolle’s 2001 creditor status. conveyance other fraudulent statutes. While shortcomings in the preserved 70 Doubtless the I do not believe the issue, Fenleys’ their case resulted prosecution of limitations I do think statute of pro large Fenleys’ from their se status. part allow the should However, though “generally binding this court shortcomings prec- even below to result in pro litigants” and is “un I be establishing is lenient with se what believe to either edent for a derstandably Accordingly, loath to sanction them law. or ill-advised incorrect there,” misstep we can procedural here result concur reached ignore their the majority. not advocate on behalf necessary preserve an issue

requirements Quinn, appeal. 2003 UT Lundahl v. “ Rather, general ‘as a P.3d rule, will party represents who himself knowledge

held to the same standard any qualified practice member ¶ 3 (quoting v. Jacob- Id. at Nelson bar.’” notes law) and [the lative measures and common Plaintiff, Tolle, did not Jeanne “[w]hile GMC, judgments.” Baker owed] credit' February, 2002 Florida civil suit until file 222, 232, 118 S.Ct. 139 L.Ed.2d U.S. September until procure however, “Regarding judgments, intentions clear the Plaintiff made her obligation and credit is exact and the other defendants to Robert Tolle full faith

Case Details

Case Name: Tolle v. Fenley

Court Name: Court of Appeals of Utah

Date Published: Mar 2, 2006

Citation: 132 P.3d 63

Docket Number: 20041045-CA

Court Abbreviation: Utah Ct. App.