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The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
U.S. Const. amend. X. The law of real property has
traditionally been within the province of the states.
The government has cited no federal statute that would
restrict the states' rights to legislate in the area of
fraudulent real estate transfers.
Here, the government is seeking to take advantage of
a right that is entirely within the domain of the state.
This right was created by a state statute and
specifically limited by the text of that statute. This
is not a straightforward question of debt collection
under the common law as was addressed by the Supreme
Court in Summerlin. * * *
United States v. Vellalos, supra at 707-708.
Further, the majority's review of United States v. Bacon, 82
F.3d 822 (9th Cir. 1996), ignores a significant holding. The
issue in Bacon was whether Washington State's Uniform Fraudulent
Transfer Act (WSUFTA) may be applied retroactively. The Ninth
Circuit concluded that it is precisely because the WSUFTA contains
an extinguishment provision, rather than a remedial or procedural
limitation, that it does not apply retroactively absent an express
provision to the contrary.
V. Conclusion
For the foregoing reasons, I believe that the time period
contained in CUFTA section 3439.09 is not a statute of
limitations, but rather is an inherent element of the right
created. Although the effect of the provision is one of "non-
claim" (i.e., it extinguishes the underlying substantive right),
rather than a mere bar to enforcement, this difference is not
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