Judgment debtor transferred money to his wife

[pillarin]

What is the name of your state? Florida

I am judgment creditor in Tampa. After I filed the lawsuit, few months prior to the final judgment, the judgment debtor transferred around $20,000 to his wife’s personal bank account. However, he testified that she later gave him $20,000 currency directly, in exchange for that transfer. His wife also testified the same. However, there is no evidence to support that claim. When asked why he took currency rather than bank transfer or check then he testified that he and his wife preferred currency transfer as she has currency with her at that time. When asked him where is that $20,000 currency now, he testified that he spent it. It is apparent that he never took any currency back from his wife. How can I proceed further on this debt collection?

 

[adjusterjack]

The burden of proving a fraudulent transfer is on you. Speculation is not proof. Did this conversation occur in court or not. If it occurred in court and the judge wasn't convinced that it was a fraudulent transfer then you are probably done with that idea unless you want to spend money on an appeal and try to show that the judge erred in applying the law. If it did not occur in court, you'll need to get the matter into court and prove that the transfer was fraudulent.

If the issue of fraudulent transfer is dead, then you'll have to find other ways to collect.

 

[Taxing Matters]

What is the name of your state? Florida

It is apparent that he never took any currency back from his wife.

While that may true, it is not guaranteed you'd win on that. The testimony of the husband and wife on the matter is admissible evidence. The question is whether a judge or jury would believe that story. A lot would turn on how convincing they are as witnesses on the stand, something I obviously don't know. It's your burden to prove the fraudulent transfer. You can prove the transfer of cash to her; the challenge is to convince the court that their claim claim of the cash transfer back isn't credible.

How can I proceed further on this debt collection?

You'd need to file an action in court seeking an order to have her return the money to him so you can execute your judgment and take the money. You'll need to see a lawyer for assistance with that.

 

[Litigator22]

[

. . . You'd need to file an action in court seeking an order to have her return the money to him so you can execute your judgment and take the money. You'll need to see a lawyer for assistance with that.

I must protest the suggestion that the OP needs to or even is able to file an independent action against the transferee wife ordering her to return the $20K to the transferor defendant husband in order that it may be levied against by judgment creditor.

In the first place there is no provision under Florida's adoption of the uniform act (UFTA) expressly authorizing an independent action against the transferee for this or any other purpose.

Nor can such a separate cause of action be inferred under the UFTA "catch up" phrase: "any other relief the circumstances may require" (F. S. 725.108(1)(c)(3). The Florida Supreme Court has previously ruled that the "catch up" wording was not intended to create an independent action for damages, but rather to facilitate the use of other remedies provided in the statute . . . and (was strictly) meant to codify an existing but imprecise system whereby transfers that were intended to defraud creditors were to be set aside. (See: Freeman vs. Union National Bank 865 So. 2d 1272 (2004) *

MOREOVER, as judgment creditor of the husband the OP has an appropriately remedy expressed in the statute; to-wit:

"F. S. 726.108 Remedies of creditors.
* * * * *
(2) If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds."
_______________

* Admittedly the case of Freeman vs. Union National Bank was not an action against a transferee of the debtor's assets. But rather a failed attempt to hold the bank responsible as aiding and abetting an insolvent debtor in allowing it to wire millions in bank deposits to a foreign entity. However, the substantive issues there and here (a common law tort remedy to supplant the codified "imprecise system whereby transfers that were intended to defraud creditor were to be set aside") are arguably closely analogous. In my opinion, that is.

 

[Taxing Matters]

I must protest the suggestion that the OP needs to or even is able to file an independent action against the transferee wife ordering her to return the $20K to the transferor defendant husband in order that it may be levied against by judgment creditor.

You will note that I did not say that the action had to necessarily be filed against the transferee. The point I was making is that the creditor needs a court order setting aside the transfer to pursue the fraudulent conveyance. The wife would have no obligation to return the funds, nor could the creditor attach funds of the wife, without a court order requiring/authorizing that. The exact form of the court action is something that the OP needs to consult a Florida attorney about.

 

[pillarin]

Thank you very much.

Can I do anything under 56.29 Proceedings supplementary http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0056/Sections/0056.29.html if it is not possible to do it through fraudulent transfer (chapter 726) alone?

Also the couple brought a witness who testified that she was there when the wife (debtor’s wife) gave $20,000 currency back to the husband (debtor) in exchange for $20,000 bank transfer from the debtor to his wife. How will this affect my efforts?

 

[Zigner]

Also the couple brought a witness who testified that she was there when the wife (debtor’s wife) gave $20,000 currency back to the husband (debtor) in exchange for $20,000 bank transfer from the debtor to his wife. How will this affect my efforts?

It won't help.

 

[pillarin]

Thank you very much.
Could you elaborate if It won't help me (I am sure it won't help me) or it won't help the debtor also?

 

[Shadowbunny]

Thank you very much.
Could you elaborate if It won't help me (I am sure it won't help me) or it won't help the debtor also?

Who was this witness? Another family member? Then it may not help the debtor all that much. Was it a non-involved party? Then you are more harmed by the testimony.

 

[Taxing Matters]

Thank you very much.
Could you elaborate if It won't help me (I am sure it won't help me) or it won't help the debtor also?

It won't help you. If the witness is believed, it certainly could help the debtor.

 

[Litigator22]

You will note that I did not say that the action had to necessarily be filed against the transferee. The point I was making is that the creditor needs a court order setting aside the transfer to pursue the fraudulent conveyance. The wife would have no obligation to return the funds, nor could the creditor attach funds of the wife, without a court order requiring/authorizing that. The exact form of the court action is something that the OP needs to consult a Florida attorney about.