law-UFTA = Uniform Fraudulent Transfers Act
TEXAS SUPREME COURT UFTA CASES
Retamco Operating, Inc. v. Douglas B. McCallum, LLC, No. 08-0405 (Tex. Feb 2009)(per curiam)
(UFTA transfer of property interest, oil and gas royalties transfer)
RETAMCO OPERATING, INC. v. DOUGLAS B. MCCALLUM, LLC; from Bexar County; 4th district
(04-07-00482-CV, ___ SW3d ___, 04-09-08)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and
without hearing oral argument, the Court reverses the court of appeals' judgment and remands the
case to the trial court.
Per Curiam Opinion
Retamco Operating, Inc. v. Republic Drilling Co. No. 07-0599 (Tex. Feb. 27, 2009)(Green)(personal
jurisdiction over out-of-state defendant, Texas Longarm Statute, minimum contacts, UFTA, transfer of
real estate interest in Texas, oil and gas law)
RETAMCO OPERATING, INC. v. REPUBLIC DRILLING COMPANY; from Bexar County; 4th district
(04-06-00727-CV, ___ SW3d ___, 03-28-07)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Green delivered the opinion of the Court.
Chu v. Hong, No. 06-0127 (Tex. Mar. 28, 2008)(Brister)(family law, divorce, property transfer to third
parties, fraud on community by spouse not actionable as independent tort, no double recovery)
UFTA DECISIONS FROM THE COURTS OF APPEALS
09‑0517 RELIANCE CAPITAL, INC. v. G.R. HMAIDAN, INC., G.R. HMAIDAN AND ISAM HMAIDAN;
from Harris County; 14th district (14‑07‑01059‑CV, ___ SW3d ___, 05‑14‑09, pet denied Nov. 2009)
Reliance Capital, Inc. v. G.R. Hmaidan, Inc (Tex.App.- Houston [14th Dist.] May 14, 2009)(Hedges)
(promissory note suit, res judicata, UFTA)
09-0066 BERTRAND R. LOVE v. ALLON R. HAHN, INDIVIDUALLY AND D/B/A HAHN'S GULF
SERVICE; from Harris County; 1st district (01-07-00096-CV, 273 SW3d 712, 11‑06‑08)
(UFTA fraudulent transfer claim, bona fide purchaser defense, constructive trust)
Hahn's Claims Under the Fraudulent Transfer Act
Love was awarded summary judgment on Hahn's claims against him under the Fraudulent Transfer
Act on the ground that he was entitled to the bona fide purchaser defense in the Act set out at
section 24.009(a) of the Business and Commerce Code. See Tex. Bus. & Com. Code Ann. § 24.009
(a) (Vernon 2002). Section 24.009(a) states that a "transfer or obligation is not voidable under
Section 24.005(a)(1) of this code against a person who took in good faith and for a reasonably
equivalent value or against any subsequent transferee or obligee." Id.
A fraudulent transfer is a transfer by a debtor with the intent to hinder, delay, or defraud his creditors
by placing the debtor's property beyond the creditor's reach. Tex. Bus. & Com. Code Ann. § 24.005
(a)(1) (Vernon 2002) ("A transfer made or obligation incurred by a debtor is fraudulent as to a
creditor, whether the creditor's claim arose before or within a reasonable time after the transfer was
made or the obligation was incurred, if the debtor made the transfer or incurred the obligation . . .
with actual intent to hinder, delay, or defraud any creditor of the debtor."); Nobles v. Marcus, 533 S.
W.2d 923, 925 (Tex. 1976).
The actual intent to defraud is shown, among other things, by evidence that the transfer was made to
an insider, including a relative; the transfer was concealed; the debtor was sued or threatened with
suit before the transfer and the value of the consideration received by the debtor was reasonably
equivalent to the value of the asset transferred; the debtor was insolvent; and the transfer occurred
shortly before or after a substantial debt was incurred. Tex. Bus. & Com. Code Ann. § 24.005(b)
(Vernon 2002). A transfer to an insider is one of the factors in proving actual intent to defraud under
the Fraudulent Transfer Act. See Tex. Bus. & Com. Code Ann. § 24.005(b)(1) (listing factors). (7)
The facts and circumstances set out in section 24.005(b) that may be considered in determining
fraudulent intent are non-exclusive and are considered mere "badges of fraud." Flores v. Robinson
Roofing & Const. Co., Inc., 161 S.W.3d 750, 755 (Tex. App.--Fort Worth 2005, pet. denied).
Therefore, because "'fraudulent intent is only to be deduced from facts and circumstances which the
law considers as mere badges of fraud, and not fraud per se, these must be submitted to the trier of
fact, which draws the inference as to the fairness or fraudulent character of the transaction.'" Id.
(quoting Coleman Cattle Co., Inc. v. Carpentier, 10 S.W.3d 430, 433 (Tex. App.--Beaumont 2000, no
pet.); see also Quinn v. Dupree, 157 Tex. 441, 303 S.W.3d 769, 774 (1957). Thus, "[t]he question of
whether a debtor conveyed property with the intent to defraud creditors is 'ordinarily a question for
the jury or the court passing on the fact'" Flores, 161 S.W.3d at 755 (quoting Spoljaric v. Percival
Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986)); see also Equitable Trust Co. v. Roland, 644 S.W.2d
46, 51 (Tex. App.--San Antonio 1982, writ ref'd n.r.e.) (pointing out that trial court's decision to grant
instructed verdict on fraudulent conveyance issues "was in contradiction of the general rule that the
existence of a fraudulent conveyance is a question for the trier of the facts"). (8) "Intent is a fact
question uniquely within the realm of the trier of fact because it so depends upon the credibility of the
witnesses and the weight to be given to their testimony." Flores, 161 S.W.3d at 755.
If intent to defraud is proved, a creditor may obtain "avoidance of the transfer or obligation to the
extent necessary to satisfy the creditor's claim," "an attachment or other provisional remedy," "an
injunction against further disposition by the debtor or a transferee, or both, of the asset transferred,"
or "any other relief the circumstances may require." Tex. Bus. & Com. Code Ann. § 24.008(a)
(Vernon 2002). Also, "If a creditor has obtained a judgment on a claim against the debtor, the
creditor, if the court so orders, may levy execution on the asset transferred or its proceeds." Id. §
Bona Fide Purchaser Defense