July 28, 2014

Colorado Court of Appeals: Property Encumbered By a Valid Lien Not Asset under Colorado Uniform Fraudulent Transfer Act

The Colorado Court of Appeals issued its opinion in Board of County Commissions of the County of Park v. Park County Sportsmen’s Ranch, LLP on October 27, 2011.

Colorado Uniform Fraudulent Transfer Act—Jury Verdict—Evidence—Asset—Lien—Successor Liability—Foreclosure—Notice—Accommodation Party.

Defendants appealed the jury verdicts and trial court judgments in favor of plaintiffs on their claims of fraudulent conveyance, civil conspiracy, successor liability, and quiet title. The judgment was affirmed in part and reversed in part, and the case was remanded for further findings.

Defendants contended that the jury’s verdict under the Colorado Uniform Fraudulent Transfer Act (CUFTA) was not supported by sufficient evidence. A fraudulent transfer under CUFTA includes the transfer of an asset; however, an asset does not include “property to the extent it is encumbered by a valid lien.” Here, because defendant Park County Sportsmen’s Ranch, LLP (PCSR)was encumbered by valid liens that exceeded its value at the time of foreclosure, it was not an asset under CUFTA. Further, defendants signed the 2002 note as accommodation to the parties under CRS § 4-3-419, because they did not receive any direct benefit from the loan. Therefore, the verdict was not supported by the evidence, and the judgment was reversed. Additionally, the jury’s verdict on civil conspiracy was reversed because it was based on the alleged fraudulent transfer.

Defendants contended that the jury’s verdict on successor liability must be reversed. Generally, a corporation that acquires the assets of another corporation does not become liable for its debts. Here, however, the indirect transfer of assets through a foreclosure sale supports successor liability despite the fact that the property lacked any equity. Additionally, the evidence supports the jury’s verdict that defendant JJWM, LLP was liable as a successor corporation, because (1) the original four partners of PCSR, the previous corporation, also were the only four partners of JJWM; (2) both partnerships had the same purpose; (3) JJWM acquired the sole asset of PCSR; and (4) PCSR also was JJWM’s sole asset. This evidence was sufficient to support the jury’s verdict on successor liability under the mere continuation exception.

Defendants argued that the trial court erred by reattaching plaintiffs’ original judgment liens to the ranch owned by JJWM. Because the individual defendants were accommodation parties, the foreclosure sale was valid and, except for Thornton’s lien due to defective notice, the foreclosure extinguished the other plaintiffs’ judgment liens. Based on this conclusion, the trial court’s order attaching plaintiffs’ original judgment liens to the ranch was reversed, except as to Thornton.

Defendant City of Aurora contended that the trial court erred by (1) finding lack of notice to Thornton of the foreclosure; and (2) voiding Aurora’s quitclaim deed from JJWM for a portion of the ranch. Because the record shows that the notice to Thornton was defective, the foreclosure did not extinguish its judgment lien. Because no fraudulent transfer occurred under CUFTA, the court’s order voiding the quitclaim deed was reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on October 27, 2011, can be found here.

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