Bank of Montreal v. Malinski

District Court of Appeal of Florida

Bank of Montreal v. Malinski

498 So. 2d 440, 11 Fla. L. Weekly 1494, 1986 Fla. App. LEXIS 8686

CourtDistrict Court of Appeal of Florida

DecidedJuly 8, 1986

DocketNo. 85-273

StatusPublished

Cited by2 cases

This text of 498 So. 2d 440 (Bank of Montreal v. Malinski) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bank of Montreal v. Malinski, 498 So. 2d 440, 11 Fla. L. Weekly 1494, 1986 Fla. App. LEXIS 8686 (Fla. Ct. App. 1986).

Pincite

Opinion

PER CURIAM.

The final summary judgment under review is affirmed as to counts III-VI of the amended complaint, and reversed and remanded for further proceedings as to count II of the amended complaint. We reach this result based on the following briefly stated legal analysis.

First, it is settled that an action by a creditor to set aside a fraudulent conveyance by his debtor lies under Section 726.-01, Florida Statutes (1985), where, inter alia, the said conveyance takes place before the actual creation of the debt in question but with a requisite intent by the debt- or to defraud the subsequent creditor. See Beasley v. Coggins, 48 Fla. 215, 37 So. 213 (1904); 13 Fla.Jur.2d Creditors’ Rights and Remedies § 253 (1979); 37 C.J.S. Fraudulent Conveyances §§ 133, 134 (1943). We do not read Wieczoreck v. H & H Builders, Inc., 450 So.2d 867 (Fla. 5th DCA 1984), certified question answered, 475 So.2d 227 (Fla.1985), to stand for a contrary proposition. Second, there is, on this record, a genuine issue of material fact as to whether such a conveyance took place in this case as pled in count II of the amended complaint, thereby precluding the entry of a summary judgment on this count. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); Fla.R.Civ.P. 1.510(c). Third, the remaining counts in the complaint are not viable based on this record.

Affirmed in part; Reversed in part.

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PER CURIAM.

The final summary judgment under review is affirmed as to counts III-VI of the amended complaint, and reversed and remanded for further proceedings as to count II of the amended complaint. We reach this result based on the following briefly stated legal analysis.

First, it is settled that an action by a creditor to set aside a fraudulent conveyance by his debtor lies under Section 726.-01, Florida Statutes (1985), where, inter alia, the said conveyance takes place before the actual creation of the debt in question but with a requisite intent by the debt- or to defraud the subsequent creditor. See Beasley v. Coggins, 48 Fla. 215, 37 So. 213 (1904); 13 Fla.Jur.2d Creditors’ Rights and Remedies § 253 (1979); 37 C.J.S. Fraudulent Conveyances §§ 133, 134 (1943). We do not read Wieczoreck v. H & H Builders, Inc., 450 So.2d 867 (Fla. 5th DCA 1984), certified question answered, 475 So.2d 227 (Fla.1985), to stand for a contrary proposition. Second, there is, on this record, a genuine issue of material fact as to whether such a conveyance took place in this case as pled in count II of the amended complaint, thereby precluding the entry of a summary judgment on this count. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); Fla.R.Civ.P. 1.510(c). Third, the remaining counts in the complaint are not viable based on this record.

Affirmed in part; Reversed in part.

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498 So. 2d 440, 11 Fla. L. Weekly 1494, 1986 Fla. App. LEXIS 8686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-montreal-v-malinski-fladistctapp-1986.

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