Dixie Van Aernam - Page 15




                                       - 15 -                                         
                C. Transfer                                                           
                A necessary element of both Fla. Stat. secs. 726.105(1)               
          and 726.106(1) is a transfer of property by the debtor.  The                
          second quitclaim deed is prima facie evidence of a transfer of              
          the Pelican Avenue property from Steven to petitioner on July 25,           
          1995 (the transfer and the transfer date, respectively).  See 19            
          Fla. Jur. 2d Deeds sec. 1 (1998) ("‘Deed’" is synonymous with               
          ‘conveyance.’").  But cf. Barr v. Schlarb, 314 So. 2d 609, 611              
          (Fla. Dist. Ct. App. 1975) (deed may signify mortgage).                     
          Petitioner having failed to introduce contradictory evidence, we            
          find accordingly.                                                           
                D. Fraud With Respect to Respondent                                   
                    1.  Introduction                                                  
                To prove that, with respect to the United States, the                 
          transfer was fraudulent, respondent must prove that it was                  
          fraudulent within the meaning of either Fla. Stat. sec.                     
          726.105(1) or sec. 726.106(1).  Realistically (based on the                 
          record before us), for respondent to prove fraud within the                 
          meaning of Fla. Stat. sec. 726.105(1), respondent must show                 
          Steven’s actual fraudulent intent or his unreasonable belief that           
          he could pay his debts as they came due.  See supra note 4.  For            
          respondent to prove fraud within the meaning of Fla. Stat. sec.             
          726.106(1), respondent must show Steven’s insolvency.  See supra            
          note 5.  By failing to call any witnesses in support of his case            






Page:  Previous  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  Next

Last modified: May 25, 2011