Kirk v. Edinger, 78-1990
| Decision Date | 19 March 1980 |
| Docket Number | No. 78-1990,78-1990 |
| Citation | 380 So.2d 1336 |
| Parties | H. C. KIRK et ux., Appellants, v. Howard Jay EDINGER et ux., et al., Appellees. /T4-205. |
| Court | Florida District Court of Appeals |
L. Alexander Vance, Jr., and Gilbert S. Goshorn, Jr., of Goshorn & Miller, P. A., Titusville, for appellants.
Joe Teague Caruso of Wolfe, Kirschenbaum, Caruso & Mosley, P. A., Cocoa Beach, for appellees.
This was an action filed by appellant to set aside an alleged fraudulent conveyance of real property. The appeal is from a final judgment for defendants.
On April 18, 1977, appellants Kirk recovered a judgment against appellees Howard Jay Edinger and Rosalyn Edinger, his wife. They alleged that at the time that suit was instituted, the Edingers owned a certain parcel of real estate in Brevard County, and that they conveyed that property to appellee Mabel Fein Leibman on February 18, 1977, approximately two months before that final judgment was entered. They further alleged that appellee Leibman was Mrs. Edinger's mother, that the conveyance was made for the specific purpose of defrauding the Kirks as judgment creditors and that it was not a bona fide purchase for value. Appellants asked that the conveyance be set aside and that the property be made subject to the lien of their judgment. After an answer was filed denying the allegations, the cause came on for non-jury trial before the court.
Appellants contend that the conveyance, under the circumstances found here, is patently a violation of Section 726.01, Florida Statutes (1975) and that the evidence clearly shows the presence of most, if not all of the "badges of fraud". 15 Fla.Jur. Fraudulent Conveyances § 12 (1964). Undoubtedly, there was evidence before the trial court to sustain that position, but there was also evidence presented upon which the trial court could conclude that there was consideration for the conveyance, that the grantee had no knowledge of the pending lawsuit and that the purpose of the conveyance was not to defraud a creditor (there had been no judgment entered yet) but to satisfy an antecedent debt in approximately the same amount as the equity in the property.
Not every conveyance of property by one against whom a suit is pending can be deemed fraudulent. Whether fraud is present in a particular transaction is to be determined by the particular facts surrounding the conveyance. Stelle v. Dennis, 104 Fla. 384, 140 So. 194 (1932); McCrary v. Bobenhausen, 366 So.2d 77 (Fla. 1st DCA 1979). We must also consider that the findings of the...
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Asarco LLC v. Americas Mining Corp.
...a creditor." Gen. Trading Inc. v. Yale Materials Handling Corp., 119 F.3d 1485, 1498-99 (11th Cir.1997) (quoting Kirk v. Edinger, 380 So.2d 1336, 1337 (Fla.Dist.Ct.App.1980)) (other internal citations omitted). ASARCO has suggested additional "badges" for the Court to consider in determinin......
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Jacksonville Bulls Football, Ltd. v. Blatt
...Orlando Light Bulb Service, Inc. v. Laser Lighting and Electrical Supply, Inc., 523 So.2d 740 (Fla. 5th DCA 1988); Kirk v. Edinger, 380 So.2d 1336 (Fla. 5th DCA 1980); McCrary v. Bobenhausen, 366 So.2d 77 (Fla. 1st DCA 1978). An owner of property has the right to dispose of it as he or she ......
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General Trading Inc. v. Yale Materials Handling Corp.
...avoid determining in a vacuum the presence or absence of a debtor's actual intent to hinder or delay a creditor. Kirk v. Edinger, 380 So.2d 1336, 1337 (Fla.Dist.Ct.App.1980). Finally, Fla. Stat. § 726.106 is potentially applicable to this case. That statute applies to transfers affecting pr......
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Burton W. Wiand, Partners, L.P. v. Lee
...may take into account the circumstances surrounding the conveyance.” Gen. Elec. Co., 118 So.3d at 327 (citing Kirk v. Edinger, 380 So.2d 1336, 1337 (Fla. 5th DCA 1980)). In S.E.C. v. Elliott, we stated that a receiver could void the transfer of assets from the receivership entities by the p......