Yusem v. S FL Water Mgmt Distric
| Decision Date | 08 November 2000 |
| Citation | 770 So.2d 746 |
| Parties | (Fla.App. 4 Dist. 2000) HENRY YUSEM, individually and JUDITH C. YUSEM, individually, Appellants, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, a public corporation, and JUDITH C. YUSEM as Trustee of the BURNSIDE COURT LAND TRUST, Appellees. NO. 4D00-943 JULY TERM 2000 |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Peter D. Blanc, Judge; L.T. Case No. CL 98-4981 AO.
Leo J. Spivack of Spivack & Caplan, Miami, for appellants.
Gloria O. North of Gloria O. North, P.A., Boca Raton, for Appellee-South Florida Water Management District.
Henry and Judith Yusem appeal from an amended final judgment entered in favor of South Florida Water Management District (SFWMD) in its claim for fraudulent conveyance. We reverse.
On September 16, 1996, a final judgment was entered against Henry Yusem, finding that he had violated SFWMD permit number 50-01353-S-08, section 373.430(1)(b), Florida Statutes (1995), and Rules 40E4.381(2) and 40E-40.381(1), Florida Administrative Code, and awarding SFWMD a money judgment for penalties,attorney's fees, and costs in the total amount of $224,695.42, at an interest rate of 10% per year. Henry Yusem has failed to make any payment upon the judgment.
At the time SFWMD's final judgment was entered, Henry Yusem had a pending legal malpractice action. In April of 1998, Henry Yusem's attorneys, Allison and Robertson, P.A., settled the legal malpractice action, receiving $244,701.11. On April 9, 1998, Henry Yusem directed Allison and Robertson, P.A. to wire transfer the $244,701.11 into the joint bank account of Henry and Judith Yusem. Henry Yusem and Judith Yusem held the joint account as tenants by the entireties. On the same day that the $244,701.11 was wire transferred into the joint account, Henry Yusem transferred $210,000 to an offshore trust account which he held in his name only. Henry Yusem testified that the entirety of these monies was lost in a bad investment in foreign currency.
SFWMD filed this suit against Henry Yusem and Judith Yusem alleging that Henry Yusem engaged in a fraudulent asset conversion in violation of section 222.30, Florida Statutes (1997), and Chapter 726, Florida Statutes (1997). A non-jury trial was held in which Henry and Judith Yusem were the only witnesses to testify. After concluding that the funds wire transferred into the joint account were subject to execution pursuant to SFWMD's final judgment, the trial court concluded as follows:
14) Once again, these assets were not identified as the wages of HENRY YUSEM. These proceeds were wired directly into the YUSEMS' account on April 9, 1998. On the same day, HENRY YUSEM transferred the bulk of the funds, or $210,000.00, to HHY trust. At trial, HENRY YUSEM claimed the money was lost. After allegedly losing approximately $210,000 in a "poor investment" in foreign currency, YUSEM was unwilling or unable to recall any specific details regarding theinvestment or subsequent loss. The Huntsman test1 is satisfied as to this transfer of $210,000. Specifically, the court finds the following badges of fraud exist:
a) The transfer of settlement funds was to an insider, first to the parties joint account and then to the Defendants' offshore trust.
b) The debtor retained control of the funds after the transfer and apparently chose to invest them.
c) The funds were transferred at a time when the judgment was outstanding.
d) The transfer was made almost immediately, removing the funds in a manner that suggests concealment.
These badges of fraud support a finding of fraudulent intent. The transfer allowed the debtor to retain possession while concealing the funds.
The trial court ordered that:
Based upon the transfer of settlement funds to the Defendant's joint account, the Plaintiff is entitled to a judgment against the Defendants, HENRY YUSEM and JUDITH YUSEM jointly and severally in the amount of $210,000.
Judith Yusem argues that the record is devoid of any evidence that she had any knowledge of the existence of the malpractice action, the fact that it had settled, that the proceeds were transferred into their joint account or that her husband immediately transferred the funds into his offshore trust account. Therefore, she cannot be held to be a transferee under the fraudulent conveyance statute. We agree.
Section 726.105, Florida Statutes (1997), provides in pertinent part:
(1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(a) With actual intent to hinder, delay, or defraud any creditor of the debtor; or
. . .
(2) In determining actual intent under paragraph (1)(a), consideration may be given, among other factors, to whether:
(a) The transfer or obligation was to an insider.
(b) The debtor retained possession or control of the property transferred after the transfer.
(c) The transfer or obligation was disclosed or concealed.
(d) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit.
(e) The transfer was of substantially all the debtor's assets.
(f) The debtor absconded.
(g) The debtor removed or concealed assets.
(h) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation...
To continue reading
Request your trial
-
Burris v. James W. Green & Fisherman's Corner, LLC
...should be required to either return the asset or pay for the asset (by way of a judgment and execution)." Yusem v. South Fla. Water Mgmt. Dist., 770 So. 2d 746, 749 (Fla. 4th DCA 2000). Plaintiffs have not alleged Franck is the recipient of any fraudulently transferred asset. Regardless of ......
-
In re First Farmers Fin. Litig.
...be required to either return the asset or pay for the asset (by way of a judgment and execution)." Yusem v. South Fla. Water Mgmt. Dist., 770 So. 2d 746, 749 (Fla. Dist. Ct. App. 2000); see also Gen. Elec. Co. v. Chuly Int'l, LLC, 118 So. 3d 325, 326 n.1 (Fla. Dist. Ct. App. 2013). FUFTA se......
-
BankFirst v. UBS Paine Webber, Inc.
...8 (2d Cir.1979); Jackson v. Star Sprinkler Corp. of Florida, 575 F.2d 1223, 1234 (8th Cir.1978); compare Yusem v. South Florida Water Management Dist. 770 So.2d 746 (Fla. 4th DCA 2000). SAWAYA, J., concurs. HARRIS, C., Senior Judge, dissents, with opinion. HARRIS, C., Senior Judge, dissenti......
-
McCalla v. E.C. Kenyon Constr. Co.
...325, 326 n. 1 (Fla. 3d DCA 2013). "A fraudulent conveyance action is simply another creditors' remedy." Yusem v. S. Fla. Water Mgmt. Dist., 770 So.2d 746, 749 (Fla. 4th DCA 2000) ("A fraudulent conveyance action, under section 726.108, is not an action against a debtor for failure to pay an......
-
Florida's homestead realty: is it exempt from imposition of an equitable lien for nonpayment of alimony and child support?
...D.C.A. 2003); Beta Real Corporation v. Graham, 839 So. 2d 890 (Fla. 3d D.C.A. 2003); Yusem v. South Florida Water Management District, 770 So. 2d 746 (Fla. 4th D.C.A. Harry M. Hipler is a sole practitioner in Dania Beach and practices in the areas of family law, commercial litigation, and m......
-
The Florida Supreme Court finds no liability for aiding or abetting a fraudulent transfer.
...with a series of recent Florida appellate decisions concerning fraudulent conveyance law. In Yusem v. South Fla. Water Mgmt. Dist., 770 So. 2d 746 (Fla. 3d DCA 2000), the Fourth District Court of Appeal reviewed an alleged fraudulent transfer of funds to an offshore account. The holding pro......