                                                                                            March 11 2014


                                          DA 13-0457

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 61



LARSON LUMBER COMPANY, INC.,

               Plaintiff and Appellee,

         v.

BILT RITE CONSTRUCTION AND LANDSCAPING
LLC; YAAK RIVER CONTRACTING, INC.;
ANITA BARTZ, and CASEY RANKIN,

               Defendants and Appellants.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DV-10-316
                       Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       David G. Tennant, Kaufman Vidal Hileman Ellingston PC,
                       Kalispell, Montana

                For Appellee:

                       James H. Cossitt, James H. Cossett, PC, Kalispell, Montana

                       Amy N. Guth, Attorney at Law, Libby, Montana



                                                    Submitted on Briefs: January 29, 2014
                                                               Decided: March 11, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.



¶1    Defendants appeal from the Findings of Fact, Conclusions of Law, and Order

entered by the Nineteenth Judicial District Court, Lincoln County.        Larson Lumber

Company (Larson) filed two actions, subsequently consolidated, alleging breach of

contract and fraud against Defendants. After a bench trial, the court entered judgment in

Larson’s favor, holding that Casey Rankin (Rankin) and Bilt Rite Construction and

Landscaping, LLC (Bilt Rite) had breached a written contract with Larson, and that a

transfer of real property from Bilt Rite to Anita Bartz (Bartz) was a fraudulent transfer.

The court’s order allowed Larson to execute its judgment for the contract debt on the real

property and further awarded attorney fees to Larson based on a contractual provision.

¶2    We affirm in part and reverse in part. The parties raise the following issues:

¶3    1. Is the appeal mooted by Larson’s taking title to the real property?

¶4    2. Did the District Court err by denying summary judgment to Defendants?

¶5     3. Did the District Court err by holding that Rankin and Bilt Rite were jointly and
severally liable to Larson?

¶6    4. Did the District Court err by holding that the Bartz loan was made to Rankin
personally?

¶7    5. Did the District Court err by holding that Bilt Rite did not receive reasonably
equivalent value in exchange for the Lot 6 property?

¶8    6. Did the District Court err by holding that the transfer of Lot 6 to Bartz was a
fraudulent transfer?

¶9    7. Did the District Court err by awarding fees against Bartz?

                                        2
¶10 8. Did the District Court err by holding that the claim limits under the Uniform
Fraudulent Conveyance Act did not prohibit Larson from taking the entire property?

¶11 9. Did the District Court err by denying Bartz’s claim for a homestead
exemption?

¶12     Resolution of Issues 8 and 9 is unnecessary to our holding, and we do not address

them.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶13     Bilt Rite originally incorporated in 2003 as a member-managed LLC engaged in

general contracting and brush removal.       Rankin and his son-in-law Merrill Taylor

(Taylor) were equal partners in Bilt Rite. Bilt Rite did not own equipment in its own

right, but used equipment owned personally by Rankin and Taylor. This equipment was

also used by Rankin and Taylor for other work unrelated to Bilt Rite. Bilt Rite started out

doing small remodel jobs, but in 2006 contracted to build a home for Bill Reddig (Reddig

job).

¶14     Larson Lumber operates a building material and supply store in Troy. Larson

routinely allows approved customers to buy items on revolving credit accounts, with

payments due monthly. Rankin opened an account with Larson in 2003, and an account

was opened for Bilt Rite in 2005. Larson was the material supplier for the Reddig job.

Throughout 2006, Bilt Rite increased the balance on its account with Larson but did not

make the required monthly payments. Later, Bilt Rite made a couple of large payments

on the overdue account, including a $27,000 payment on November 6, 2006. At the end

of 2006, Bilt Rite still owed approximately $14,000.

                                         3
¶15      Bartz works for Estuary Corporation as the ranch manager at Lake Okaga Ranch.

Rankin also works at Lake Okaga, and Bartz has been his boss there since 2003. Both

live at the Lake Okaga property. Though Larson alleged that Bartz and Rankin were

romantically involved during the disputed events, no evidence to this effect was

presented. Bartz and Rankin were in a romantic relationship at the time of trial but both

denied that they were romantically involved in 2006.

¶16      On October 11, 2005, Bartz gave $45,000 to Rankin or Bilt Rite. The nature of

this transaction is highly disputed and is discussed further below.             The money was

deposited into Bilt Rite’s business account and the undisputed evidence shows that the

money was used to purchase a skidder and welding truck, to pay Bilt Rite business

expenses, and to purchase a vacant lot in a new subdivision. The vacant lot was Lot 6 of

Airbase Flats III (Lot 6), which Bilt Rite purchased by paying approximately $12,000 in

cash and assuming a contract for deed with approximately $33,000 outstanding.1 Bilt

Rite planned to build a “spec house” on the property. Soon after, Bartz began asking

when her $45,000 would be repaid.

¶17      On December 1, 2006, Bilt Rite transferred the Lot 6 property to Bartz. She

assumed the remaining balance on the contract for deed and subsequently paid it in full.

Following Bartz’s acquisition of Lot 6, she arranged to have a house built on the

property. The extent of that construction project is unclear, but it is undisputed that, at

the time Bartz acquired the property, the only improvements were some foundation work


1
    The contract for deed required payments of $303.83 per month with an interest rate of 7%.
                                              4
and a well. Larson presented testimony from other Estuary employees that they were

paid in cash by either Bartz or Rankin to construct the house on Lot 6 as side work.

These witnesses testified to their understanding that it was Bartz and Rankin’s house

together, and that Rankin was generally in charge of the project, but they did not know

where the money came from or that Rankin actually held an interest in the property.

¶18    Larson began to question Rankin and Bilt Rite about getting the Bilt Rite account

settled in late 2006 or early 2007. Rankin assured Larson he intended to pay the debt,

and asked Larson to write up a contract for payment of the debt for him to sign. On or

about January 15, 2007, Rankin signed a document drafted by Larson entitled “Binding

Agreement,” which stated “Rankin does hereby agree to pay [Larson] the amount of

$15,604.85” at a rate of 12% interest. Rankin promised to pay at least $500 monthly, and

agreed to pay all attorney fees and court costs in the event of a breach of the agreement.

Though the body of the agreement only references Rankin, Bilt Rite’s name is printed

with Rankin’s name under the signature line. Rankin made a few payments by personal

check, beginning with $500 payments and later $250 payments, before stopping payment

altogether. Larson subsequently learned that Bilt Rite had ceased operations in late 2006.

¶19    Rankin testified that in 2006, Bilt Rite was bringing in business quickly that they

“were not really prepared to take on.”       Rankin estimated the business owed over

$100,000 in debt, and testified he had paid significant business expenses out of his own

pocket. In late 2006, the State of Montana ordered Bilt Rite to stop operating until it was

current on its worker’s compensation contributions. Rankin estimated that Bilt Rite owed

                                         5
between $70,000-$80,000 in payroll taxes and worker’s compensation contributions.

Because the business couldn’t bring that current, Rankin testified that he decided to shut

down the business. Taylor left Montana at some point in late 2006. In early February

2007, Rankin notified the Secretary of State’s office that he was no longer associated

with Bilt Rite, and that office involuntarily dissolved the business.

¶20    On January 26, 2007, Rankin registered Yaak River Contracting as a sole

proprietorship. On June 24, 2009, Yaak River Contracting, Inc. was incorporated with

Rankin as president, holding 49% interest, and Bartz as vice-president, secretary, and

treasurer, holding 51%. Both entities appear to have been formed to provide general

contracting services. As of trial, Yaak River Contracting, Inc. did not have any assets in

its name and used equipment and machinery owned by Bartz or Rankin.

¶21    In September 2009, Larson filed a complaint against Rankin, Taylor, and Bilt Rite

alleging that each was jointly and severally liable for the debt evidenced by the Binding

Agreement. Rankin and Bilt Rite filed an answer in which they claimed that Larson

fraudulently induced Rankin to sign the Binding Agreement with false representations

that the agreement would bind only Bilt Rite. Rankin and Bilt Rite raised several other

affirmative defenses to Larson’s claim that Rankin was personally liable. Shortly after

the complaint was filed, Taylor and Rankin both filed personal bankruptcy and were

dismissed from the suit without prejudice.

¶22    In November 2010, Larson filed a separate lawsuit against Bilt Rite, Yaak River

Contracting, Inc., and Bartz claiming fraud, constructive fraud, fraudulent transfer,

                                          6
conspiracy, aiding and abetting, successor liability, and punitive damages.          Larson

alleged that Rankin and Bilt Rite conspired with Bartz and Yaak River to hide assets

from Larson to avoid paying the debt it was owed. Specifically, Larson claimed that the

transfer of the Lot 6 property from Bilt Rite to Bartz was a fraudulent transfer. Yaak

River and Bartz moved the court to dismiss the complaint for failure to join Rankin as an

indispensable party. Rankin filed an affidavit in support of this motion confessing that he

was an indispensable party. However, when Larson thereafter filed a motion to lift the

stay in Rankin’s bankruptcy case, Rankin opposed this motion, arguing that the state

court could fashion an appropriate remedy without Rankin’s involvement.                  The

Bankruptcy Court granted Larson’s motion to lift the stay, reasoning that Rankin was

estopped from taking different positions in the different courts. Rankin was subsequently

joined as a party in the fraud case, and the two lawsuits (fraud and breach of contract)

were consolidated.

¶23    Defendants twice moved for summary judgment on all claims. After the second

motion, Larson conceded to entry of summary judgment on its conspiracy, aiding and

abetting, successor liability, and punitive damages claims. The District Court denied

Defendants’ motion with regard to the other claims. On February 12, 2013, the matter

was tried to the court without a jury. At trial, Larson voluntarily dismissed its claims that

Bartz’s ownership of Yaak River stock was a fraudulent transfer and that Bilt Rite had

fraudulently transferred other “hard and soft assets” to Bartz “along with a 51% stock

ownership in Yaak [River], Inc.” The District Court and the parties agreed that the only

                                          7
issues left to determine at trial were the validity of the debt under the Binding Agreement

and whether the Lot 6 property had been fraudulently transferred to Bartz.

¶24    Following trial, the court entered judgment in favor of Larson. It held that Rankin

and Bilt Rite were jointly and severally liable for the debt evidenced by the Binding

Agreement, and had both breached the contract by their failure to make required

payments. The court determined that Rankin and Bilt Rite owed Larson $26,944.25, plus

accruing interest, and awarded attorney fees against them pursuant to the agreement. The

court also set aside the transfer of Lot 6 to Bartz as a fraudulent transfer, denying her

claim of a homestead exemption. The court further concluded that Larson could recover

its attorney fees against Bartz because “[w]hen [she] received the benefit of the

fraudulent transfer, Bartz assumed the risk of exposure to Larson’s efforts to collect its

debts.” Finally, the District Court denied Bartz’s argument that, under the Uniform

Fraudulent Conveyance Act, Larson was only entitled to collect the lesser of the value of

the property when received or the amount of its claim. Instead, the court allowed Larson

to execute its judgment on the entire property without regard to the change in the

property’s value following Bartz’s payoff of the contract for deed and her new home

construction. Defendants appeal.

                              STANDARD OF REVIEW

¶25    A district court’s denial of summary judgment is reviewed de novo applying the

same M. R. Civ. P. 56 criteria as the district court. Polzin v. Appleway Equip. Leasing,

Inc., 2008 MT 300, ¶ 9, 345 Mont. 508, 191 P.3d 476. Summary judgment is only

                                         8
appropriate when there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. Polzin, ¶ 9. All reasonable inferences which may

be drawn from the evidence must be drawn in favor of the party opposing the motion.

Corporate Air v. Edwards Jet Ctr. Mont., Inc., 2008 MT 283, ¶ 24, 345 Mont. 336, 190

P.3d 1111. “Summary judgment is an extreme remedy that should never be a substitute

for a trial on the merits if a controversy exists over a material fact.” Corporate Air, ¶ 24.

¶26    We will affirm the findings of fact of a trial court sitting without a jury unless the

findings are clearly erroneous. Jones v. Arnold, 272 Mont. 317, 322, 900 P.2d 917, 921

(1995). Findings of fact are clearly erroneous if they are not supported by substantial

evidence, if the trial court misapprehended the effect of the evidence, or if this Court is

left with a definite and firm conviction that a mistake has been made. Jones, 272 Mont.

at 323, 900 P.2d at 921. Substantial evidence exists when the record contains “relevant

evidence which a reasonable mind might accept as adequate to support a conclusion.”

Montanans v. State, 2006 MT 277, ¶ 79, 334 Mont. 237, 146 P.3d 759 (citation omitted).

We review a district court’s conclusions of law to determine whether the court’s

interpretation of the law is correct. Youderian Constr. v. Hall, 285 Mont. 1, 6, 945 P.2d

909, 912 (1997).

                                       DISCUSSION

¶27    1. Is the appeal mooted by Larson’s taking title to the real property?

¶28    Larson argues the appeal in this case is moot because, following the District

Court’s judgment, Defendants failed to request a stay of execution and Larson executed

                                          9
upon the judgment by a sheriff’s sale of Lot 6, at which it was the successful bidder.

Larson argues that because title to the property has already transferred, this Court cannot

restore the parties to their original positions, and an order of restitution will not restore

title to the property in Bartz.

¶29    “Mootness is a threshold issue which must be considered before addressing the

underlying dispute.” Povsha v. City of Billings, 2007 MT 353, ¶ 19, 340 Mont. 346, 174

P.3d 515. A dispute is moot when it once existed but “because of an event or happening,

it has ceased to exist and no longer presents an actual controversy.” Povsha, ¶ 19

(citation omitted). Whether or not effective relief can be granted under the circumstances

depends on the “unique facts, procedural posture, and relief requested in the particular

case.” Progressive Direct Ins. Co. v. Stuivenga, 2012 MT 75, ¶ 49, 364 Mont. 390, 276

P.3d 867. If restitution or some other form of relief is possible upon reversal “then the

appeal is not moot-even if property has changed hands and third-party interests are

involved.” Progressive Direct, ¶ 49.

¶30    Larson has not articulated why an order of restitution could not provide effective

relief in this case despite the property changing hands or why the property cannot be

restored in Bartz simply because Larson purchased it at sheriff’s sale.            Larson’s

ownership of the property is subject to a right of redemption pursuant to § 25-13-801 et

seq., MCA, allowing Bartz the option of purchasing the property back for a specified

amount until August 7, 2014. Bartz also filed a Notice of Lis Pendens with the Clerk and

Recorder’s office to provide notice to potential purchasers of her claim to the property

                                         10
based on this appeal. Thus, at a minimum, a court could award her restitution in an

amount that would allow her to redeem the property. Because effective relief is still

possible, the appeal is not moot.

¶31    2. Did the District Court err by denying summary judgment to Defendants?

¶32    Defendants argue the District Court erred in failing to fully grant its second

motion for summary judgment because there were no material issues of disputed fact and

it was entitled to judgment as a matter of law.2 Entry of summary judgment may be

proper when

       the parties are not arguing over what happened or presenting conflicting
       evidence; they merely need to know which of them, under the uncontested
       facts, is entitled to prevail under the applicable law. In such a case, the
       district court judge need not weigh evidence, choose one disputed fact over
       another, or assess credibility of the witnesses.

Cole v. Valley Ice Garden, LLC, 2005 MT 115, ¶ 4, 327 Mont. 99, 113 P.3d 275.

Conversely, if the district court judge is required to weigh evidence, choose between

disputed facts, or assess the credibility of witnesses, an entry of summary judgment is

inappropriate.



2
  Within their arguments, Defendants, by their counsel, make repeated accusations of improper
conduct and essential bias on the part of the District Court, claiming that the court engaged in a
“vendetta against Rankin,” “decided early on in this matter based on Larson’s fabricated
allegations and then did everything in its power to support its preconceived result,” and “turned a
blind eye to dispositive facts.” Defendants’ briefing criticizes the District Court for other
asserted errors that are not raised as issues on appeal, such as denying Defendant a jury trial and
“overrul[ing] Defendants” when there was no objection. These statements in appellate briefing
are inappropriate. If a party has a concern about judicial bias, the law provides a process to
address that concern and it should not serve as briefing fodder. Defendants did not seek to have
the district judge disqualified for bias, and we reprove the Defendants’ disparagement of the
judiciary before this Court.
                                              11
¶33    Whether a transfer by a debtor is a fraudulent transfer is a fact intensive

determination. Among other factors, a court must consider whether a transfer was to an

“insider,” the debtor retained possession or control over the property following the

transfer, the debtor was insolvent at the time of or immediately following the transfer,

and whether the transfer was in exchange for reasonably equivalent value.               See

§ 31-2-333, MCA.      The record shows that there were significantly disputed factual

questions regarding these factors, as we discuss below. For example, Larson’s primary

contention was that the $45,000 transferred from Bartz was a personal loan to Rankin,

rather than a loan to Bilt Rite, as Defendants claimed. Larson’s contention, if true, could

result in the real property transfer from Bilt Rite to Bartz being an exchange without

value. Additionally, Larson sought to prove that Rankin retained control over the real

property following the transfer and that Bilt Rite was then insolvent. These factual

disputes, along with their accompanying credibility determinations, prevented an entry of

summary judgment. The District Court did not err in denying Defendants’ motion.

¶34 3. Did the District Court err by holding that Rankin and Bilt Rite were jointly and
severally liable to Larson?

¶35    Rankin and Bilt Rite argue that the District Court erred in holding that Rankin

signed the Binding Agreement in both his individual capacity and as an agent for Bilt

Rite. They assert that “[t]he language of the agreement unequivocally states that only

Rankin is personally liable on the note. The agreement contains no language that Bilt

Rite or any other person or entity besides Rankin promised to pay Larson.” Rankin and

Bilt Rite’s argument on this issue is that the plain terms of the agreement confer liability
                                         12
for the debt only upon Rankin.      At trial, Rankin testified that Larson prepared the

document and included the name Bilt Rite under his signature line. Rankin also testified

that he made the agreement with Larson and had agreed to pay the debt personally, rather

than on behalf of Bilt Rite.

¶36    However, in the breach of contract suit, which was consolidated with the fraud suit

to form this action, the greater part of Rankin and Bilt Rite’s Answer contested the

personal liability of Rankin in any respect, and even alleged that to the extent the

agreement was binding on Rankin personally, it was signed as a result of fraud by

Larson. Specifically, Rankin and Bilt Rite, represented by the same attorney at all times,

pled: “The agreement alleged by [Larson] is unenforceable to impose personal liability

on [Rankin] pursuant to Section 28-2-903, MCA”; “[Rankin] rescinded any alleged

agreement once he discovered it was [Larson’s] intent to impose personal liability on

him”; “Larson also represented to [Rankin] and Bilt Rite that the amount payable under

the agreement would only be paid by Bilt Rite and Bilt Rite would be liable for such

amounts”; “Larson intended that [Rankin] and Bilt Rite would rely on its representations

to them that . . . there would be no personal liability by [Rankin] for any amount owed”;

“Larson gained an advantage by misleading [Rankin] to his prejudice that he would not

be personally liable for amounts due under the agreement”; and, lastly, “[Rankin] did not

sign any agreement to be liable to [Larson] individually.”




                                        13
¶37    At a minimum, Rankin and Bilt Rite’s completely inconsistent arguments about

the contract language demonstrate that the language of the contract was not clear and

unambiguous.     Further, judicial estoppel prevents them from taking such contrary

positions. See Fiedler v. Fiedler, 266 Mont. 133, 140, 879 P.2d 675, 679-80 (1994)

(elements of judicial estoppel are (1) estopped party must have knowledge of the facts at

the time the original position is taken, (2) party must have succeeded in maintaining the

original position, (3) position presently taken must be actually inconsistent with the

original position, and (4) original position must have misled the adverse party so that

allowing the estopped party to change its position would injuriously affect adverse party).

In the breach of contract case, filed before his bankruptcy petition, Rankin asserted that

only Bilt Rite was bound by the agreement, and on that basis he obtained a dismissal

from that proceeding. Thereafter, Larson initiated an action against Bilt Rite and Bartz

for fraud based on Rankin’s admission that Bilt Rite had agreed to pay this debt despite

his knowledge that the business was no longer in existence. In light of this record, we

conclude that the District Court did not err in finding joint and several liability between

Rankin and Bilt Rite for the debt to Larson.

¶38 4. Did the District Court err in holding that the Bartz loan was made to Rankin
personally?

¶39    Larson attempted to prove a fraudulent conveyance of Lot 6 to Bartz by claiming

that Bartz lent the money to Rankin personally, resulting in the transfer of real property to

Bartz from Bilt Rite being without an exchange of value and consideration.

Alternatively, Larson sought to prove that Bartz invested the money in Bilt Rite as a
                                         14
member of the entity, making her an “insider” who then received assets of the insolvent

business. Thus, Larson sometimes argues that the funds were a loan to Rankin and at

other times argues they were an investment in Bilt Rite. In its findings of fact, the

District Court determined the money was indeed a personal loan to Rankin. Because the

loan was made to Rankin individually, the court further determined that Bilt Rite did not

receive reasonably equivalent value in exchange for the transfer of Lot 6 to Bartz. In its

conclusions of law, the court held the transfer was constructively fraudulent under

§ 31-2-333(1)(b), MCA, because Bilt Rite did not receive reasonably equivalent value for

the land at a time it was insolvent. However, the court also concluded that Bartz was an

insider of the corporation who received Lot 6 as part of an intentional scheme to defraud

creditors, pursuant to § 31-2-333(1)(a), MCA. The court entered no findings of fact

establishing Bartz was an “insider,” as defined in § 31-2-328(7), MCA. In this issue we

consider the status of the $45,000 transferred by Bartz.

¶40    Starting with evidence that is essentially undisputed, the $45,000 from Bartz was

deposited in Bilt Rite’s business account.      Those proceeds were used for business

purposes—purchase of a skidder and welding truck, payment of Bilt Rite’s bills, and

purchase of vacant Lot 6 for a location to build a spec house. Lot 6 was purchased by

Bilt Rite two weeks after the $45,000 transfer was made and was titled in Bilt Rite’s

name. Larson did not present any evidence to contradict Bilt Rite’s use of the $45,000

for these purposes. Later, Bartz began asking when her $45,000 would be repaid. Bilt

Rite then transferred Lot 6 to Bartz, which required her to assume the liability under the

                                         15
contract for deed on the property. Bartz made payments on this contract until the debt,

approximately $33,000, was retired. She then arranged for a house to be constructed on

the property. In her deposition, attached as an exhibit to Larson’s Cross Motion for

Summary Judgment and admitted into the record at trial by Larson, Bartz testified that

she transferred $30,000 by wire transfer to Bilt Rite’s account, and $15,000 by check

made out to Bilt Rite. A copy of the check made out to Bilt Rite was entered into

evidence at trial, and Bartz identified a document shown to her by Larson’s counsel

during the deposition as a wire transfer from her USAA bank account to Bilt Rite

Construction.

¶41    Larson asserts that “Bartz, in her deposition, characterized her contribution to Bilt

Rite as an investment, not a loan,” but overstates the record. Bartz’s testimony is murky

at best on the technical nature of the money she transferred to Bilt Rite. Bartz testified

that money transferred to Bilt Rite was for “the loan aspect or the investment in Bilt Rite

Construction.” She indicated that the money was given to Bilt Rite as “a loan or, slash,

investment” from which she hoped to get a return. Considered in its entirety, Bartz’s

testimony during her deposition does little to support Larson’s claims that she admitted

the money was not a loan. It is notable that Larson pled that members Rankin and Taylor

“each had a 50% ownership interest in Bilt Rite,” thus contradicting its claim that Bartz

invested in the business for an equity position rather than making a traditional loan to the

business.




                                         16
¶42    Larson presented witnesses who testified about the debt owed to Larson by Bilt

Rite, evidenced by the Binding Agreement signed by Rankin, and the work done on Lot 6

after the property was transferred to Bartz. Larson did not present specific evidence

about the transaction between Bartz and Bilt Rite and/or Rankin, but rather offered what

it characterized as inconsistencies between Rankin’s prior testimony in other proceedings

and Rankin’s and Bartz’s testimony in the present proceeding.

¶43    Though the District Court found that Rankin was not a credible witness and chose

to disregard his testimony, Larson relied heavily upon Rankin’s testimony to make its

case, both in the District Court and before this Court. Larson contends that “Rankin

testified at his bankruptcy proceeding that Bartz lent money to Rankin, individually.”

Rankin did testify in the bankruptcy proceeding that “she made the loan to me,” but

stated it was for “business type things.” He further offered a clarification that “[w]e

borrowed $45,000.00; we being Bilt Rite Construction.”           Considered as a whole,

Rankin’s answers are ambiguous at best, and cannot be taken as a clear admission that the

money was a personal loan. Importantly, the undisputed evidence about Bilt Rite’s

receipt and actual use of the money contradicts Larson’s individual loan theory.

¶44    The District Court did not find that the $45,000 transfer was an equity investment

in Bilt Rite, but rather a personal loan to Rankin. There is no explanation in the findings

of fact or conclusions of law for evidence on which the court made this determination.

The court simply made the general findings that “Rankin borrowed $45,000.00 from

Bartz in 2005 or 2006,” and “[t]he Lot 6 transfer to Bartz was executed to forgive debt

                                        17
owed by Rankin individually.” The material evidence all supports a conclusion that the

money was transferred directly to Bilt Rite and used by Bilt Rite for entirely business

purposes. Bartz asked for repayment and was paid by property titled in Bilt Rite’s name.

Although Larson can point to isolated statements from Rankin and Bartz referring to the

money as a loan to Rankin, the totality of their testimony, as noted above, does not

consistently bear that out. Thus, we conclude that no substantial evidence exists in the

record to support the District Court’s conclusion that the $45,000 was a personal loan to

Rankin. Rather, it was a loan made to Bilt Rite.

¶45 5. Did the District Court err by holding that Bilt Rite did not receive reasonably
equivalent value in exchange for the Lot 6 property?

¶46   Having concluded that the $45,000 from Bartz was a loan made to Bilt Rite

directly, we next examine whether Bilt Rite’s transfer of Lot 6 and the associated debt to

Bartz in exchange for cancellation of the debt was a transfer of reasonably equivalent

value at the time. The evidence indicated that Bilt Rite paid approximately $12,000 in

cash and assumed a debt of approximately $33,000 to purchase Lot 6. Bilt Rite owned

the property between October 27, 2005, and December 1, 2006, and made the required

monthly payments of $303.83 during this brief period before transferring Lot 6 to Bartz,

who assumed the remaining debt under the contract for deed.            From Bilt Rite’s

perspective, it satisfied a $45,000 debt owed to Bartz with property it had obtained for a

purchase price of approximately $45,000, albeit with an indebtedness of about $33,000.

Bartz assumed that debt, making the deal even more advantageous for Bilt Rite. Thus,

Bilt Rite clearly received reasonably equivalent value from the transfer—actually, a very
                                        18
high value. Although the deal was not as good on paper for Bartz, there is indication in

the record that the value of Lot 6 was appreciable and that it was a site well suited for

house construction, which attracted Bilt Rite to the property originally. Any appreciable

value accrued to Bartz to help offset her assumption of the $33,000 debt. We conclude

the transaction was one for reasonably equivalent value.

¶47 6. Did the District Court err by holding that the transfer of Lot 6 to Bartz was a
fraudulent transfer?

¶48    The Uniform Fraudulent Transfer Act provides that a transfer can be found to be

either intentionally or constructively fraudulent. The District Court concluded that the

Lot 6 transfer to Bartz satisfied the requirements for both types of fraudulent transfers.

¶49    An intentionally fraudulent transfer occurs when a debtor makes the transfer with

actual intent to hinder, delay, or defraud a creditor of the debtor. Section 31-2-333(1)(a),

MCA. To determine “actual intent,” a court may consider several factors, including

whether the transfer was made to an “insider,” the debtor retained possession or control

over the property after the transfer, the transfer was concealed or disclosed, the debtor

had been sued or threatened with a lawsuit shortly before the transfer, the transfer was

substantially all of the debtor’s assets, the debtor did not receive reasonably equivalent

value to the value of the asset transferred, and the debtor was insolvent at the time of, or

immediately after, the transfer. Section 31-2-333(2), MCA. An “insider” is defined as a

director or officer of the debtor; a person in control of the debtor; a partnership in which

the debtor is a general partner; or a relative of a general partner, director, officer or

person in control of the debtor. Section 31-2-328(7)(b), MCA. In turn, “relative” is
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defined as “an individual related by consanguinity within the third degree as determined

by the common law; [ ] a spouse or an individual related to a spouse within the third

degree as so determined; or [ ] an individual in an adoptive relationship within the third

degree.” Section 31-2-328(11), MCA.

¶50    A constructively fraudulent transfer can be found, even without proof of “actual

intent,” if the transfer was made “without receiving a reasonably equivalent value in

exchange for the transfer” and the debtor was either engaged or was about to engage in a

transaction for which the remaining assets of the debtor were unreasonably small in

relation to the transaction, or “intended to incur, or believed or reasonably should have

believed that the debtor would incur, debts beyond the debtor’s ability to pay as they

became due.” Section 31-2-333(1)(b), MCA.

¶51    Applying the Uniform Fraudulent Transfer Act to the record here, we conclude the

District Court erred in holding that a fraudulent property transfer occurred under either

theory. A finding of constructive fraud is precluded by our previous determinations. The

statute first and foremost requires a transfer be made without reasonably equivalent

value. Here we have concluded the transfer was made with reasonably equivalent value.

Having done so, we need not consider the further requirements under the statute.

¶52    With regard to an intentionally fraudulent transfer, evidence was presented that the

transfer represented a substantial part of Bilt Rite’s assets, and that it was insolvent at the

time of the transfer. However, there was no evidence that Bartz was an insider, that the

transfer was concealed, or that the transfer was made before or shortly after a substantial

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debt was incurred.     Bilt Rite’s debts, such as payroll taxes, were of long standing.

Although Rankin signed the Binding Agreement a little more than a month after the

transfer, the debt was actually incurred by Bilt Rite over the course of 2006—prior to the

transfer—and Bilt Rite had substantially reduced its debt to Larson less than a month

before the transfer with the $27,000 payment on November 6, 2006. Bartz was not an

equity-holder of Bilt Rite and, even if Larson’s unsupported allegations of a romantic

relationship with Rankin were true, such a relationship does not meet the definition of

“relative” under the statute.    Most importantly, as we have already concluded, this

transfer was for reasonably equivalent value. Though Bilt Rite was insolvent before the

transfer, it significantly reduced its debt by way of this transfer. Had the transfer not

occurred, Bartz would have had a claim against Bilt Rite for $45,000 and Bilt Rite would

still have owed the $33,000 on the Lot 6 property. The transfer of Lot 6 to Bartz

eliminated both debts of the business. While the transfer may well have been a strategic

move to insure that Bartz was repaid, such a show of favoritism between legitimate,

unprioritized creditors does not, by itself, constitute a fraudulent transfer. On this record,

we cannot conclude that the statutory factors support a determination that the transfer was

made with actual intent to defraud the creditors of Bilt Rite.

¶53    7. Did the District Court err by awarding fees against Bartz?

¶54    Having concluded that the transfer to Bartz was not fraudulent, there remains no

support for an award of fees against Bartz, who was not party to the Binding Agreement

or otherwise liable for Bilt Rite’s debts. We reverse the award of fees against her.

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¶55    Affirmed in part, reversed in part, and remanded for further action consistent with

this opinion.


                                                /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER




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