Conseco Servs., LLC v. Cuneo, 3D04-1995.
| Decision Date | 09 March 2005 |
| Docket Number | No. 3D04-1995.,3D04-1995. |
| Citation | 904 So.2d 438 |
| Parties | CONSECO SERVS., LLC., Appellant, v. Richard CUNEO & Ngaire Cuneo, Appellees. |
| Court | Florida District Court of Appeals |
Greenberg Traurig, and Elliot H. Scherker, and David A. Coulson, and Lisa L. Jama, Miami, for appellant.
Fowler White Burnett, and Alan J. Perlman, and June G. Hoffman; and Podhurst, Orseck, and Robert C. Josefsberg, Miami, for appellees.
Before COPE, RAMIREZ, and WELLS, JJ.
Conseco Services, LLC, appeals an order dissolving a notice of lis pendens. The Cuneos cross-appeal the order challenging certain conditions imposed before sale or encumbrance of their property. Because Conseco Services failed to show a fair nexus between the alleged fraudulent transfers and the real property encumbered by the lis pendens, we affirm the dissolution of the lis pendens and on cross-appeal reverse the conditions imposed on the property.
The Cuneos participated in a loan program for certain Conseco, Inc., directors, officers and employees. Conseco Services was a subsidiary of Conseco, Inc. Pursuant to that loan program, the Cuneos borrowed approximately $40 million from participating banks and used those funds to purchase Conseco, Inc., stock. The Cuneos also executed notes and guaranties for $15 million in favor of Conseco Services; Conseco Services paid the interest on the Cuneos' bank loans. Subsequently, Conseco, Inc., filed for bankruptcy, and its stock became worthless. The Cuneos defaulted on the loans.
Conseco Services filed an action in Indiana against Ngaire Cuneo seeking repayment of the loans, and alleging fraudulent transfers by the Cuneos. In that action, Conseco alleged that the loans were not repaid and that the Cuneos had fraudulently transferred assets to other family members with the intent to hinder, delay and defraud their creditors. Subsequently, the Cuneos sold $8 million in securities (not Conseco, Inc., stock) and obtained a $2.45 million mortgage on their Connecticut home. They used those proceeds to purchase a $10.2 million home in Florida. The Indiana court denied Conseco Services' request for an injunction to prevent the Cuneos from hiding assets by maintaining the Florida home as their homestead property; the court ruled that it did not have jurisdiction over the Florida real estate.
Conseco Services then filed an action in Florida against the Cuneos. In count I, Conseco Services requested a declaratory judgment ruling that the Cuneos' transfer of funds was fraudulent because the Cuneos were attempting "to take advantage of the Florida homestead exemption" to "hinder, delay and defraud present or future creditors." In count II, Conseco Services asserted that it was entitled to an equitable lien on the Cuneos' Florida home because the Cuneos had "committed a fraudulent or otherwise egregious act by fraudulently transferring $10,200,000.00, all during the pendency of another fraudulent transfer action," and "[t]he funds used to purchase the Florida Property can be directly traced to at least two fraudulent conveyances, a $2.45 million mortgage taken out on the Cuneos' Connecticut home, and the sale of $8 million in securities, the proceeds of which were used to purchase[ ] the $10.2 million home in Florida." Conseco Services filed a notice of lis pendens on the property relying on its equitable lien claim. The Cuneos filed a motion to discharge the lis pendens. Following a hearing, the court dissolved the lis pendens ruling that there was no fair nexus between the Cuneos' Florida home and the dispute set forth in the complaint, and no other basis existed for the lis pendens. The court denied Conseco Services' stay motion. However, it ordered the Cuneos to provide notice to Conseco Services and to appear in court if it decided to sell or encumber the property. Conseco...
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