Crews v. Carwile (In re Davis)

138 B.R. 106, 6 Fla. L. Weekly Fed. B 65, 1992 Bankr. LEXIS 408
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedMarch 23, 1992
DocketBankruptcy No. 91-980-BKC-3P7; Adv. No. 91-642
StatusPublished
Cited by8 cases

This text of 138 B.R. 106 (Crews v. Carwile (In re Davis)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crews v. Carwile (In re Davis), 138 B.R. 106, 6 Fla. L. Weekly Fed. B 65, 1992 Bankr. LEXIS 408 (Fla. 1992).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GEORGE L. PROCTOR, Bankruptcy Judge.

This proceeding came before the Court upon Motions for Summary Judgment filed by the plaintiff and the defendant. Hearings were held on November 27, 1991, and December 17, 1991. The Court enters the following Findings of Fact and Conclusions of Law:

Findings of Fact

For purposes of clarity an explanation of the relationship of the parties is in order. Defendant, Vicki Carwile, is the daughter of the debtor, Eugenia Mae Davis. Alma P. Davis was debtor’s mother and, thus, defendant’s grandmother.

On February 26, 1979, Alma P. Davis received a $102,000.00 promissory note and mortgage from Patrick D. and Suzanne E. Brackett to be paid in monthly installments of $750.00 at eight percent interest. The mortgage was secured by the following real property:

Lot Sixteen (16), Block Two Hundred Three (203), LAKESIDE PARK, according to plat thereof recorded in Plat Book 3, Page 11, of the current public records of Duval County, Florida.

Alma Davis assigned the mortgage and note to debtor on August 14, 1980, but reserved a life estate interest in the payments. She passed away on July 10, 1982, vesting the mortgage and right to receive the monthly payments in debtor.

On October 15,1985, debtor assigned her right to receive 120 of the monthly mortgage payments to Barco Investments for $47,000.00. Debtor retained a reversionary interest for the balance of the payments.

In late 1989, debtor met with an attorney regarding her financial difficulties. During the course of the discussions, debtor learned that her reversionary interest was an asset that could be reached by creditors.

On December 8, 1989, debtor irrevocably assigned her reversionary interest to defendant, her daughter, for the sum of $10.00. The assignment is recorded in the public records of Duval county, Florida, at volume 6806, page 176. At the time of the assignment, the principal balance left on the re-versionary interest was approximately $47,-000.00.

Debtor contends that at the time her mother transferred the mortgage and note to her, the mother intended for the proceeds to be divided equally between debtor and defendant. Thus, she asserts that the transfer of her reversionary interest was not a true transfer but was only intended to memorialize the verbal family agreement.

In the year following the assignment, debtor was sued by a variety of financial institutions:

1. First Union Bank — final judgment for $2,224.28 entered on September 27, 1990;
2. Citibank — final judgment for $8,572.06 entered in February, 1991;
3. Barnett Bank — final judgment for $4,488.29 entered on August 30, 1990; and
4. Southeast Bank — sued for $3,705.07 on January 23, 1991, but no judgment ever entered.

Debtor filed a voluntary Chapter 7 petition on March 1, 1991.

When debtor transferred the reversion-ary interest in December of 1989, she was indebted to virtually all of the creditors that were later included in her bankruptcy schedules. In addition her assets were essentially the same as when the bankruptcy petition was filed in March of 1991, with two exceptions. Debtor sold her 1976 Corvette worth $4,300.00, and subject to a $2,000.00 lien, during such time and also [108]*108dispossessed herself of some household furniture.

Conclusions of Law

This proceeding has come before the Court on competing motions for summary judgment. Rule 56(e) of the Federal Rules of Civil Procedure, as made applicable by Federal Rule of Bankruptcy Procedure 7056, requires that summary judgment only be entered if the pleading, depositions, and other evidence demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The Court has reviewed the pleadings and depositions filed in this adversary proceeding and is satisfied that no genuine issue of material fact exists. Accordingly, a review of the law is necessary to determine which party is entitled to a judgment.

Trustee brought this suit pursuant to 11 U.S.C. § 544(b), which provides in pertinent part:

(b) The trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title or that is not allowable only under section 502(e) of this title.

The applicable law that the trustee seeks to apply in this proceeding is Florida Statute ch. 726.105 which provides:

(1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(a) With actual intent to hinder, delay, or defraud any creditor of the debtor; or
(b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:
1. Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
2. Intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.

Pursuant to Fla.Stat. ch. 726.110, the statute of limitations for bringing an action under Fla.Stat. ch. 726.105 is four years. The transfer at issue in this proceeding occurred in December, 1989, less than four years before the filing of the complaint. However, defendant argues that the state statute of limitations is restricted by the one year time period for avoiding fraudulent transfers prescribed by 11 U.S.C. § 548.

Defendant’s reading of the statute is misguided. The one-year time period in § 548 is merely a restriction on the powers granted to the trustee under that section. It does not constitute a statute of limitations and has no bearing on the trustee’s powers under other sections. In re Bethune, 18 B.R. 418, 419 (Bankr.N.D.Ala.1982).

Under § 544(b) the trustee is given the power to avoid transfers which are avoidable under “applicable” law. Applicable law has consistently been held to include state law. In re Robbins, 91 B.R. 879, 883 (Bankr.W.D.Mo.1988); In re Hes-con Developers, Inc., 81 B.R. 26, 30 (Bankr.S.D.Cal.1987). “Since the bankruptcy court is applying the forum state’s substantive law of fraudulent conveyance in actions brought under Section 544(b), the bankruptcy court is required to apply the forum state’s statute of limitations governing fraudulent conveyances.” In re Josefik, 72 B.R. 393, 397 n.

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138 B.R. 106, 6 Fla. L. Weekly Fed. B 65, 1992 Bankr. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crews-v-carwile-in-re-davis-flmb-1992.