NATIONSBANK, NA v. Coastal Utilities, Inc., 4D01-1485.

• Decision Date: 01 May 2002
• Docket Number: No. 4D01-1485.,4D01-1485.
• Citation: 814 So.2d 1227
• Parties: NATIONSBANK, N.A., successor in interest by merger to Intercontinental Bank, Appellant, v. COASTAL UTILITIES, INC.; Michael F. Iacobelli; Christopher J. Iacobelli; Henry Pierson, Jr.; and Patricia Iacobelli a/k/a Patricia J. Maczko, Appellees.
• Court: Florida District Court of Appeals

814 So.2d 1227

NATIONSBANK, N.A., successor in interest by merger to Intercontinental Bank, Appellant, v. COASTAL UTILITIES, INC.; Michael F. Iacobelli; Christopher J. Iacobelli; Henry Pierson, Jr.; and Patricia Iacobelli a/k/a Patricia J. Maczko, Appellees.

No. 4D01-1485.

District Court of Appeal of Florida, Fourth District.

May 1, 2002.

James J. Webb of Haley, Sinagra & Perez, P.A., Fort Lauderdale, for appellant.

Nestor Bustamante, III of Ferencik Libanoff Brandt and Bustamante, P.A., Fort Lauderdale, for Appellee-Patricia Iacobelli.

STONE, J.

We reverse a summary judgment entered against Nationsbank, N.A. ("bank"). The bank is a judgment creditor on a judgment obtained against Coastal Utilities, Inc. and Michael Iacobelli.

Post-judgment, Iacobelli was deposed and the bank learned of a Janus account owned by Iacobelli and his wife, Patricia Maczko. The Janus account was originally opened in February 1996, before Maczko and Iacobelli were married, as a joint tenancy with right to survivorship. Iacobelli failed to produce documentation concerning the account until sanctioned, and by that time, the account was empty.

According to the deposition of Maczko, approximately one year after the final judgment, Maczko, with the advice of her attorney, transferred approximately $260,000 out of the Janus account and into her own separately owned checking account and into various Janus accounts. Maczko stated that she made the transfers because she was concerned about protecting her money from the bank's judgment. Since that time, Maczko has withdrawn the funds.

The bank's claim against Maczko alleged that transfers from Iacobelli to Maczko were fraudulent and requested, among other things, that Maczko be ordered to surrender all withdrawn funds. The trial court subsequently entered the summary final judgment against the bank, concluding that Maczko had undivided possession and ownership of the funds at issue and could, thus, dispose of the assets as she saw fit.

In its action against Maczko, the bank utilized supplementary proceedings under section 56.29, Florida Statutes (1999), a procedural mechanism to assist judgment creditors in recovering fraudulent transfers. It allows the judgment creditor to go after third parties to the extent that they may have property belonging to the debtor.

In determining whether a transfer to a third party is invalid, as a fraud on creditors, the Uniform Fraudulent Transfer Act (UFTA) applies. The bank sought to impose liability under sections 726.105 and 726.106 of the act. Under section 726.105(1)(a), Florida Statutes, a transfer by a debtor "is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made ..., if the debtor made the transfer ... with actual intent to hinder, delay, or defraud any creditor of the debtor...." See Morton v. Cord Realty, Inc., 677 So.2d 1322, 1324 (Fla. 4th DCA 1996)

. Pursuant to the statutory scheme, the creditor is to demonstrate that: (1) there was a creditor to be defrauded; (2) a debtor intending fraud; and (3) a conveyance of property which could have been applicable to the payment of the debt due. Huntsman Pckg'g Corp. v. Kerry Pckg'g Corp., 992 F.Supp. 1439, 1446 (M.D.Fla.1998).

Section 726.106, Florida Statutes, provides that:

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.

In the instant case, it is undisputed that the Janus account in question was a joint account with right of survivorship and not a tenancy by the entireties. As to such an account, each person has the right, against the other, only to his or her individual interest in the account. Absent other provision, however, the shares in the joint account are presumed to be equal for purposes of alienation. For purposes of survivorship, each joint tenant owns the whole, so that upon the death of one joint tenant, the remainder of the fund passes to the survivor. See Beal Bank, SSB v. Almand and Assocs., 780 So.2d 45, 53 (Fla. 2001)

.

A joint owner's withdrawal of funds from a joint account terminates the "joint tenancy nature of the funds." Sitomer v. Orlan, 660 So.2d 1111, 1114 (Fla. 4th DCA 1995). Upon withdrawal by one party, the withdrawing joint tenant is liable to the joint owner for that person's share of the withdrawn funds. Wiggins v. Parson, 446 So.2d 169, 172 (Fla. 5th DCA 1984). Where a joint tenant withdraws more than his or her share, such a withdrawal is wrongful as between the parties to the account. In re Guardianship of Medley, 573 So.2d 892, 898 n. 4 (Fla. 2d DCA 1991). It is clear that Maczko's position that she had undivided possession and ownership of the funds as a whole mistakenly confuses a joint tenancy with a tenancy by the entirety. The supreme court has recently cautioned against this. See Beal Bank, 780 So.2d at 53

.

In the instant case, because the disputed account was a joint tenancy, the bank could have attached Iacobelli's portion of the account. See id. (holding that if property is held as a joint tenancy with right of survivorship, a creditor of one of the joint tenants may attach the joint tenant's portion of the property to recover that joint tenant's individual debt). Before the bank reached the Janus account, Maczko withdrew the funds, including...