Paul Raidna v. Mary Anderson et al.

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Superior Court of Connecticut.

Paul Raidna v. Mary Anderson et al.

CV105016048

    Decided: February 10, 2011

MEMORANDUM OF DECISION

The plaintiff, Paul Raidna (“Raidna”), in March 2007 commenced an action against the defendant, William Anderson (“William”), and his business entity, Classic Car Restoration Parts (“CCRP”), under docket number UWY-CV-07-5004170-S (“the underlying action”).   In the underlying action, Raidna sought to recover a $30,000.00 deposit he had given to William and/or CCRP toward the purchase of a 1970 Chevelle LS6 convertible.   The underlying action was tried before Judge Jane Scholl, who issued a decision on November 6, 2008 for the plaintiff in the amount of $30,000.00 plus interest.

Raidna sought to enforce his judgment against William.   Through post-judgment discovery, it was discovered that William had transferred title to the 1970 Chevelle LS6 convertible to Mary Anderson (“Mary”), his mother.

Raidna then commenced this action against William, Mary and Classic Car Restoration (“CCR”) which is Mary's d/b/a.   Raidna's cause of action is a claim under the Uniform Fraudulent Transfer Act, General Statutes §§ 52-552a et seq.   Specifically, Raidna claims that the defendants engaged in a fraudulent transfer of the motor vehicle pursuant to General Statutes § 52-552e(a)(1) and (a)(2)(B).1

At the trial, Raidna appeared through counsel, but was not present.   The defendant William also was not present but appeared through counsel.   The defendants Mary and CCR, which Mary operates as a d/b/a, were represented by counsel and did appear at trial.

The plaintiff offered testimony of Vincent Messina, State Marshal, regarding service of a subpoena and postjudgment discovery.   The only other live testimony offered was that of the defendant, Mary, who was called by the plaintiff.

Mary testified that her son, William, had borrowed money from her for his parts business CCRP. Commencing in 2006, Mary had extended money to him by checks which through November 2007 totaled $68,365.00.   Plaintiff's Exh. 9. In January 2008, William conveyed the 1970 Chevelle to Mary to repay her for the money she had extended to him.   Plaintiff's Exhibit 12.   This fact also was confirmed by Mary's testimony at trial.   The motor vehicle bill of sale indicated a sales price of $60,000.00.   Plaintiff's Exh. 6. There was a second bill of sale executed in March 2008 which related to the car being placed for auction.   The auction in March was not fruitful for sale of the car.   Mary, through her d/b/a/ Classic Car Restoration, sold the car on March 15, 2010 for $58,000.00.   Plaintiff's Exh. 10.

The case of Wieselman v. Hoeniger, 103 Conn.App. 591, 930 A.2d 768 (2007), provides guidance for claims brought pursuant to General Statutes § 52-552e.  “A party who seeks to set aside a transfer as fraudulent bears the burden of proving fraudulent intent by clear and convincing evidence.”   Wieselman v. Hoeniger, supra, 103 Conn.App. 596, citing Dietter v. Dietter, 54 Conn.App. 481, 488, 777 A.2d 926 (1999).

The court in Wieselman v. Hoeniger, further stated:

The uniform Fraudulent Transfer Act (act), General Statutes § 52-552a et seq., which was in effect at the time of the conveyance at issue, “is largely an adoption and clarification of the standards of the common law [of fraudulent conveyances].”  (Internal quotation marks omitted.)  Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 145 n. 7, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002).   According to General Statutes § 52-552k, “[u]nless displaced by the provisions of sections 52-552a to 52-552l, inclusive, the principles of law and equity, including ․ the law relating to ․ fraud ․ supplement the provisions of said section.

Wieselman v. Hoeniger, supra, 103 Conn.App. 596.

As the Wieselman court concluded, the determination of whether a fraudulent conveyance took place is solely a question of fact for the trier of fact.

The Supreme Court in Miller v. Commissioner of Correction, 242 Coun. 745, 700 A.2d 1108 (1997), provides guidance on the standard of clear and convincing evidence as follows:

The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt.   It “is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.”  (Emphasis added;  internal quotation marks omitted;  citations omitted.)

Miller v. Commissioner of Correction, supra, 242 Conn. 794.

The Miller court further stated:

We have stated that the clear and convincing evidence standard should operate as a weighty caution upon the minds of all judges, and it forbids relief “whenever the evidence is loose, equivocal or contradictory.”

Id., 795 (citations omitted).

The court finds the testimony of the defendant, Mary Anderson, to be credible.   Her testimony regarding the transfer of the 1970 Chevelle to her by William in repayment for the debt he owed her for the monies she had advanced to him was substantiated by the transcript testimony of William from the November 4, 2008 trial.   See Plaintiff's Exh. 12.

The plaintiff seeks to have the court find from the evidence through suggestion or innuendo that the transaction between Mary and William was a fraudulent transfer.   The evidence, as a whole, did not rise to the level of clear and convincing evidence.   At best, the evidence was “loose, equivocal and contradictory.”

Therefore, based on the credibility of the defendant Mary Anderson's testimony, which was the only testimony the court heard regarding the transfer of the 1970 Chevelle, the court finds that the plaintiff has failed to sustain his burden of proof.   The plaintiff failed to prove actual intent to defraud him as a creditor and also failed to prove that the transaction between Mary and William was not for “reasonably equivalent value.”

Judgment shall enter for the defendants.

AGATI, J.

FOOTNOTES

FN1. Sec. 52-552e Transfers fraudulent as to present creditors.(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, if the creditor's claim arose before the transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation:  (1) With actual intent to hinder, delay or defraud any creditor of the debtor;  or (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor (A) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction, or (B) intended to incur, debts beyond his ability to pay as they became due.(b) In determining actual intent under subdivision (1) of subsection (a) of this section, consideration may be given, among other factors, to whether:  (1) The transfer or obligation was to an insider, (2) the debtor retained possession or control of the property transferred after the transfer, (3) the transfer or obligation was disclosed or concealed, (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit, (5) the transfer was of substantially all the debtor's assets, (6) the debtor absconded, (7) the debtor removed or concealed assets, (8) 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 incurred, (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred, (10) the transfer occurred shortly before or shortly after a substantial debt was incurred, and (11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor..  FN1. Sec. 52-552e Transfers fraudulent as to present creditors.(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, if the creditor's claim arose before the transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation:  (1) With actual intent to hinder, delay or defraud any creditor of the debtor;  or (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor (A) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction, or (B) intended to incur, debts beyond his ability to pay as they became due.(b) In determining actual intent under subdivision (1) of subsection (a) of this section, consideration may be given, among other factors, to whether:  (1) The transfer or obligation was to an insider, (2) the debtor retained possession or control of the property transferred after the transfer, (3) the transfer or obligation was disclosed or concealed, (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit, (5) the transfer was of substantially all the debtor's assets, (6) the debtor absconded, (7) the debtor removed or concealed assets, (8) 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 incurred, (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred, (10) the transfer occurred shortly before or shortly after a substantial debt was incurred, and (11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

Agati, Salvatore C., J.

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