Wells Fargo Bank International v. Binabdulaziz

Appellate Division of the Supreme Court of New York

Wells Fargo Bank International v. Binabdulaziz

119 A.D.2d 1003, 500 N.Y.S.2d 993, 1986 N.Y. App. Div. LEXIS 55939

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 4, 1986

StatusPublished

This text of 119 A.D.2d 1003 (Wells Fargo Bank International v. Binabdulaziz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wells Fargo Bank International v. Binabdulaziz, 119 A.D.2d 1003, 500 N.Y.S.2d 993, 1986 N.Y. App. Div. LEXIS 55939 (N.Y. Ct. App. 1986).

Pincite

Opinion

Order unanimously affirmed, without costs. Memorandum: Although Special Term erroneously imposed upon plaintiff the burden of showing by clear and convincing evidence that petitioner and defendants were parties to a fraudulent conveyance, there was no showing by plaintiff by any standard of proof of an "actual intent” by defendants under Debtor and Creditor Law § 276 to "hinder, delay, or defraud” it or that the conveyance was made without a fair consideration and rendered the transferor insolvent under Debtor and Creditor Law § 273. In the face of the proof that the transfer of funds constituted a loan that was repaid, plaintiff failed to sustain its burden under CPLR 6223 (b) of establishing that the conveyance was a fraudulent scheme concocted to hinder, delay or defraud it, as a known creditor of defendants, and to prevent satisfaction of a contemplated judgment (see, Merrill Lynch Futures v Kelly, 585 F Supp 1245, 1258; Laco X-Ray Sys. v Fingerhut, 88 AD2d 425, 431, appeal dismissed 58 NY2d 826; 7A Weinstein-Korn-Miller, NY Civ Prac ¶ 6223.05), or that it was made without a fair consideration. Moreover, plaintiff did not establish that the transferee of the conveyance was a gratuitous donee and in the absence of such proof the trial court’s determination not to impose a constructive trust should not be disturbed (see, McCall v Town of Middlebury, 52 AD2d 736). (Appeal from order of Supreme Court, Onondaga County, Lawton, J. — vacate levy.) Present — Dillon, P. J., Callahan, Doerr, Pine and Schnepp, JJ.

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Order unanimously affirmed, without costs. Memorandum: Although Special Term erroneously imposed upon plaintiff the burden of showing by clear and convincing evidence that petitioner and defendants were parties to a fraudulent conveyance, there was no showing by plaintiff by any standard of proof of an "actual intent” by defendants under Debtor and Creditor Law § 276 to "hinder, delay, or defraud” it or that the conveyance was made without a fair consideration and rendered the transferor insolvent under Debtor and Creditor Law § 273. In the face of the proof that the transfer of funds constituted a loan that was repaid, plaintiff failed to sustain its burden under CPLR 6223 (b) of establishing that the conveyance was a fraudulent scheme concocted to hinder, delay or defraud it, as a known creditor of defendants, and to prevent satisfaction of a contemplated judgment (see, Merrill Lynch Futures v Kelly, 585 F Supp 1245, 1258; Laco X-Ray Sys. v Fingerhut, 88 AD2d 425, 431, appeal dismissed 58 NY2d 826; 7A Weinstein-Korn-Miller, NY Civ Prac ¶ 6223.05), or that it was made without a fair consideration. Moreover, plaintiff did not establish that the transferee of the conveyance was a gratuitous donee and in the absence of such proof the trial court’s determination not to impose a constructive trust should not be disturbed (see, McCall v Town of Middlebury, 52 AD2d 736). (Appeal from order of Supreme Court, Onondaga County, Lawton, J. — vacate levy.) Present — Dillon, P. J., Callahan, Doerr, Pine and Schnepp, JJ.

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Bluebook (online)

119 A.D.2d 1003, 500 N.Y.S.2d 993, 1986 N.Y. App. Div. LEXIS 55939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-fargo-bank-international-v-binabdulaziz-nyappdiv-1986.

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