- 111 -
consideration when the debtor intended to incur, or believed or
reasonably should have believed that he or she would incur, debts
beyond his or her ability to pay as they became due. See sec.
726.105(1)(b) (1988).
Furthermore, Fla. Stat. section 726.106,35 disregards intent
and provides a transfer per se fraudulent where the creditor’s
claim arose before the transfer, the transfer lacked valid
consideration, and the debtor was insolvent at that time or
became insolvent as a result of the transfer.
C. Discussion
Respondent contends that Frank’s and Katherine’s transfers
to Larry, Ronnie, and Sylvia are fraudulent under either Fla.
Stat. section 726.01 or FUFTA. For the post-1987 transfers,
respondent contends that Larry, Ronnie, and Sylvia are liable as
35 Fla. Stat. sec. 726.106 (1988) provides as follows:
726.106. Transfers fraudulent as to present creditors
(1) A transfer made or obligation incurred by a debtor is
fraudulent as to a creditor whose claim arose before the
transfer was made or the obligation was incurred if the
debtor made the transfer or incurred the obligation without
receiving a reasonably equivalent value in exchange for the
transfer or obligation and the debtor was insolvent at that
time or the debtor became insolvent as a result of the
transfer or obligation.
(2) A transfer made by a debtor is fraudulent as to a
creditor whose claim arose before the transfer was made if
the transfer was made to an insider for an antecedent debt,
the debtor was insolvent at that time, and the insider had
reasonable cause to believe that the debtor was insolvent.
Page: Previous 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 NextLast modified: May 25, 2011