Innis v. Robertson

854 N.E.2d 105, 67 Mass. App. Ct. 388
Massachusetts Appeals Court·Decided September 15, 2006·No. No. 05-P-645·Published·Cited by 4 cases

Opinion

Cowin, J.

The defendants appeal from a final judgment rendered by a judge of the Superior Court (1) setting aside four [389]*389real estate conveyances on the ground that they were fraudulent as against the plaintiff, and (2) permitting the plaintiff to reach and apply the interests of defendant George E. Robertson in satisfaction of an existing debt. The defendants challenge on multiple grounds the judge’s determination that the conveyances were fraudulent. In this regard, they argue that, because the properties prior to their transfer were owned by the entirety, they could not be the subject of fraudulent conveyances; the plaintiff was not a creditor at the time of the conveyances; the plaintiff’s debtor, George E. Robertson, was not insolvent at the time of the conveyances, nor did the conveyances render him insolvent; and the properties were, in any event, conveyed for fair consideration. Separately, the defendants contend that the debt alleged by the plaintiff (an amount owed on a judgment) had been satisfied, so that the conveyances in question deprived the plaintiff of nothing to which she was entitled. We conclude that the comprehensive findings of the trial judge are fully supported by the evidence, and his application of the law governing fraudulent conveyances is correct. Accordingly, we affirm.

1. Background facts. We recite relevant facts that appear to be undisputed. In 1988, defendant George E. Robertson (George), the owner of a one-half interest in Hopedale Development, Inc. (Hopedale Development), a real estate development company, acquired the remaining one-half interest in the corporation from the plaintiff’s husband, Richard G. Innis. As the major portion of the consideration for the acquisition, George gave to Innis a promissory note in the principal amount of $900,000. In 1989, after her husband’s death, the plaintiff commenced an action against George in the Superior Court wherein she alleged both nonpayment of the promissory note and fraud in the manner in which George acquired her husband’s one-half interest in Hopedale Development.

It was during the pendency of that case that the real estate transfers that are the subject of the present proceeding took place. Between June and August, 1991, George and his wife, defendant Sandra M. Robertson (Sandra), conveyed four properties owned by them as tenants by the entirety; specifically, (1) apartment buildings containing twenty-four units on Dutcher Street in Hopedale (conveyed to Sandra as trustee of Robertson [390]*390Realty Trust, created at the time of the transfer of the Dutcher Street buildings); (2) residential real estate on Cutler Street in Hopedale, used by the defendants as their principal residence (conveyed to Sandra individually); (3) real property on Philip Road in Sandwich (conveyed to Sandra individually); and (4) unimproved real property on Cedar Street in Milford (conveyed to Sandra individually). Each deed recited consideration of less than one hundred dollars.

In December, 1991, the plaintiff prevailed in the 1989 action. A jury determined both that George had failed to make payment on the promissory note, and that he had taken unfair advantage of the plaintiff’s husband in acquiring his one-half interest in Hopedale Development. Judgment in favor of the plaintiff entered against George in the amount of $5,072,911. On May 21, 1992, a judge of the Superior Court ordered that George’s stock in Hopedale Development (then in bankruptcy proceedings) be transferred to the plaintiff (in her capacity as representative of her husband’s estate) to be applied to the judgment debt.3 George declared personal bankruptcy in July, 1992.

The plaintiff, on or about December 13, 1993 (at which time she owned all of the stock of the bankrupt Hopedale Development), filed in the bankruptcy proceeding a proposed plan of reorganization of that corporation whereby a third party, the Richard G. Innis Trust, would purchase the corporation’s assets at their fair market value, with one hundred percent of the corporation’s stock being transferred to an affiliated entity, Innis Land Development, Inc. (in which the plaintiff’s children were interested parties). The plan was approved by a judge of the bankruptcy court on or about January 19, 1994. The Richard G. Innis Trust paid a total of $455,000 to Hopedale Development for all of its real estate assets, and those proceeds went entirely to creditors of that corporation. In 1998, most of this real estate was sold.

In 1997, the plaintiff commenced the present action to set aside the four real estate conveyances of 1991 so that, upon their return to ownership by George and Sandra, the real estate could be reached and applied to the outstanding judgment [391]*391against George. Following a nonjury trial, the judge concluded that the 1991 conveyances were indeed fraudulent as against the plaintiff. The judge determined further that the transfer to the plaintiff of the stock of Hopedale Development, and her subsequent sale of the corporation’s assets, pursuant to an approved bankruptcy plan, to an entity controlled by her children did not satisfy George’s obligation on the judgment against him, and authorized the plaintiff to reach and apply the assets in question following the setting aside of the fraudulent conveyances.

2. The fraudulent conveyances. The defendants argue first that the real estate transfers that took place in 1991 cannot be deemed to be fraudulent conveyances because, by virtue of the characteristics of the tenancy by the entirety estate, the conveyances did not reduce George’s ability to satisfy his obligation to the plaintiff. They rely for the proposition on Richman v. Leiser, 18 Mass. App. Ct. 308, 312 (1984), and similar cases, where it is stated: “A conveyance is not established as fraudulent conveyance upon showing of a fraudulent intention alone; there must also be a resulting diminution in the assets of the debtor available to creditors.” We acknowledge the truth of the concept, but conclude that it is not applicable here.

That real property is owned by the entirety does not mean that the interest of a debtor spouse has no value to his or her creditors. At common law, “an individual creditor of the husband could levy and sell on execution his interest in the tenancy, and dispossess both the husband and wife.” Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 150 (1993). However, “the property always remained subject to the wife’s survivorship right, and if the husband died before the wife, the creditor lost all of his interest.” Ibid. General Laws c. 209, § 1, rewritten by St. 1979, c. 727, and applicable to tenancies by the entirety created after February 11, 1980, while equalizing the rights of men and women with respect to the tenancy by the entirety estate, altered the common law by providing in part that “[t]he interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the nondebtor spouse.” Thus, when a [392]*392principal residence is involved, a creditor may no longer execute on the property absent the consent of the nondebtor spouse. Co-raccio v. Lowell Five Cents Sav. Bank, supra at 151.

“[General Laws c. 209, § 1,] did not, however, alter the characteristics of the estate itself.” Ibid. While now “either spouse may convey or encumber his or her interest in property held as tenants by the entirety,” id.

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Innis v. Robertson, 854 N.E.2d 105, 67 Mass. App. Ct. 388 (Mass. Ct. App. 2006).

854 N.E.2d 105 (Innis v. Robertson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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