First National Bank of Roland v. Rush

785 S.W.2d 474, 30 Ark. App. 272, 1990 Ark. App. LEXIS 177
CourtCourt of Appeals of Arkansas
DecidedMarch 21, 1990
DocketCA 88-421
StatusPublished
Cited by19 cases

This text of 785 S.W.2d 474 (First National Bank of Roland v. Rush) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First National Bank of Roland v. Rush, 785 S.W.2d 474, 30 Ark. App. 272, 1990 Ark. App. LEXIS 177 (Ark. Ct. App. 1990).

Opinion

George K. Cracraft, Judge.

First National Bank of Roland, Oklahoma, appeals from a decision of the chancery court of Sebastian County refusing to set aside as fraudulent conveyances quitclaim deeds executed by Desno Rush. This appeal was originally filed in the Arkansas Supreme Court, which transferred the case to this court for decision. 1 We affirm.

In 1983, Bokoshe T.V. Cable, Inc., borrowed $60,000.00 from the appellant bank. Desno Rush and Ralph Lewis were the owners of all of the stock of that corporation. The loan was secured by a security interest in the corporation’s equipment and inventory. Prior to consummation of the loan, Desno Rush submitted to the bank a financial statement, which included as assets thirteen parcels of real estate owned by Rush and his wife, Mary Anne. Although the bank prepared papers for Lewis, Rush, and their wives, to personally guarantee the corporate note, for reasons that the bank could not explain, only Desno Rush signed the guaranty agreement.

When the note became in default in August, 1984, appellant filed suit against Desno Rush, Ralph Lewis, and Bokoshe T.V. Cable, Inc., and obtained judgment in January, 1985. In December, 1984, however, Rush had executed deeds conveying his interest in the thirteen lots to his wife, Mary Anne.

Shortly after the judgment was entered in Oklahoma, it was registered in Sebastian County, Arkansas. After attempts to collect on the judgment against Desno Rush in Sebastian County were unsuccessful, this action was brought to set aside the deeds to Mary Anne, as having been made with intent to defraud Desno’s creditors.

After a trial, the chancellor found that all of the property in question had been purchased with Mary Anne’s separate funds. He found that she owned and managed the property, and that Desno had no interest therein, other than “in name only.” He further found that Mary Anne had no knowledge either of appellant’s loan to Desno, that Desno had ever represented to a potential creditor that he held an interest in her property, or that any creditor of Desno’s had ever relied upon her property when granting a loan to Desno. The chancellor then concluded:

It is the Court’s opinion from the facts, evidence and law that the [appellant] has failed to show fraud or intent to defraud, delay or hinder [appellant], a secured creditor of Desno Rush, and others, and that [appellant], even with entitlement to a presumption herein, the same has been rebutted and overcome by the testimony and evidence of the [appellees]. There was no intent on the part of either [appellee] to fraudulently convey property which rightfully and from its acquisition date belonged to Mary Anne Rush. It is understandable that Desno Rush’s name was on the property, papers and accounts, but his interest was in name only until the happening of some event to give him title by possession. Mary Anne Rush did not have and has no connection with Desno Rush’s businesses and no connection with an obligation to [appellant]. It would be highly inequitable to take her property to satisfy someone else’s claim under the facts and circumstances in this case, more so in view of the fact that there are other avenues of satisfaction unapproached by the creditor concerned.

Appellant argues that, as Desno was not only in debt but was insolvent at the time of the transfers, a conclusive presumption of fraud of creditors arose, and the chancellor erred in holding that Desno was not insolvent and that the presumption had been rebutted. The view we take of the matter makes it unnecessary for us to determine whether or not Desno was insolvent, because the presumption of fraud never arose under the facts as found by the chancellor.

This court reviews chancery cases de novo on the record. However, we do not disturb the chancellor’s findings of fact unless we find them to be clearly erroneous, giving due deference to the chancellor’s superior position to judge the credibility of the witnesses and the weight to be given their testimony. Hackworth v. First National Bank, 265 Ark. 668, 580 S.W.2d 465 (1979); Ark. R. Civ. P. 52(a). We also will affirm a decree if it appears to be correct upon the record as a whole, even though the chancellor may have given, in whole or in part, the wrong reason for the result he reached. Horton v. Koner, 12 Ark. App. 38, 671 S.W.2d 235 (1984); Frawley v. Smith, 3 Ark. App. 74, 622 S.W.2d 194 (1981). Here, although we may not fully agree with all of the reasons stated by the chancellor, we conclude that he reached the correct result in holding that the conveyances were not fraudulent as to existing creditors of Desno Rush.

Desno and Mary Anne Rush were married in 1959. Mary Anne was a Korean national and Desno Rush was a career officer serving in the United States Army in the Republic of Korea. Mary Anne was from a wealthy family and had substantial sums of money on deposit in Korean banks prior to the marriage. Desno returned to the United States in 1971. At the time Mary Anne and their children joined him in Fort Smith, she transferred between $70,000.00 and $90,000.00 from her Korean bank to a bank in Fort Smith. She controlled this money and used part of it to begin purchasing various rental properties. She continued to use these separate funds, along with subsequent rental income, to purchase the remainder of the thirteen lots in question. None of Desno’s separate money went toward these acquisitions. The family’s living expenses were paid with Desno’s retirement income and Mary Anne’s earnings from other employment.

Mary Anne testified that she was afraid that being an Asian female would cause people to take advantage of her, and that she had been advised by an attorney to take title to the property with her husband jointly, which she did. She also testified that, in order to assume loans on the properties, lending institutions required her to have Desno sign the notes and mortgages. There was no evidence of any intention by either spouse that Desno acquire any present interest in Mary Anne’s property. Mary Anne testified that she maintained complete control over the property, collected the rents, and made all arrangements with regard to it. Desno went his separate way and engaged in entirely different business pursuits. Mary Anne had specifically instructed Desno not to use her property to borrow money, and he had promised her that he never had and never would. She knew nothing about his cable television business, was not aware of the loan made in Oklahoma, and had no knowledge that the suit had been filed against Desno or that judgment had been entered.

Mary Anne testified that as early as 1981 she had demanded that Desno convey his interest in the lots to her and that she had threatened to divorce him if he did not do so. She testified that they were having marital difficulties and that he had promised to execute the conveyances several times before the Oklahoma problems arose. Desno testified that Mary Anne had insisted on the conveyances and that he had conveyed the property to her solely in exchange for her agreement not to divorce him or expel him from the house.

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Bluebook (online)
785 S.W.2d 474, 30 Ark. App. 272, 1990 Ark. App. LEXIS 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-of-roland-v-rush-arkctapp-1990.