THE BANK OF MONTREAL, APPELLANT,
v.
NORMAN MALINSKI, TRUSTEE, EMERICK KERTESZ AND VERONICA KERTESZ, APPELLEES
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The court affirmed summary judgment on counts III-VI but reversed and remanded count II, holding that a creditor may pursue a fraudulent conveyance action under Florida law even when the conveyance predates the debt if the debtor intended to defraud the subsequent creditor, and that genuine issues of material fact precluded summary judgment on count II.
A creditor may bring an action to set aside a fraudulent conveyance under Fla. Stat. § 726.01 where the conveyance occurs before the debt is created if the debtor intended to defraud the subsequent creditor.
[1] An action by a creditor to set aside a fraudulent conveyance under Fla. …
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Join FLexlaw to unlock all legal intelligenceBank of Montreal sought to set aside a conveyance made by its debtor before the debt was created, claiming fraudulent intent to defraud the subsequent…
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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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Hurlbert v. Shackleton, 560 So. 2d 1276 (Fla. 1st DCA 1990)…section 726.01, Fla.Stat. (1985), a creditor has a cause of action to set aside a debtor’s conveyance that took place before the creation of the debt, but only if the debtor intended to defraud the subsequent creditor. Bank of Montreal v. Malinski, 498 So. 2d 440 (Fla. 3d DCA 1986). “However, where the creditor is not in existence at the time of the conveyance, there must be evidence establishing actual fraudulent intent by one who seeks to have the transaction set aside.” Eurovest, LTD. v. Segall, 528 So. 2…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Wieczoreck v. H & H Builders, Inc., 450 So. 2d 867 (Fla. 5th DCA 1984)
- Wieczoreck v. H & H Builders, Inc., 475 So. 2d 227 (Fla. 1985)
- D. P. Beasley in Bankruptcy of the Estate of P. S. Coggins v. Coggins, 48 Fla. 215 (Fla. 1904)