                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                     August 28, 2012 Session

     KAREN STONER, EXECUTRIX OF THE ESTATE OF IRMA M. COLLINS v.
                     BRITTANY C. AMBURN

                   Appeal from the Chancery Court for Jefferson County
                    No. 10-3-052    Telford E. Forgety, Jr., Chancellor




                 No. E2012-00075-COA-R3-CV - Filed September 28, 2012


Karen Stoner (“the Executrix”), in her capacity as the Executrix of the Estate of Irma M.
Collins, brought suit against Brittany C. Amburn seeking to divest ownership of certain real
property out of Amburn and into her name in her representative capacity. The suit was
grounded in the Executrix’s claim that the subject property was fraudulently conveyed to
Amburn by the latter’s stepfather, Larry C. Collins (“the Judgment Debtor”), a judgment
debtor of the Estate. The Executrix alleged that the transfer was made for the purpose of
shielding the property from execution on her judgment. At the conclusion of the proof in a
jury trial, the court held that no reasonable minds could reach a conclusion other than that the
conveyance was fraudulent in nature. The court directed a verdict in favor of the Executrix.
The court vested all right, title and interest to the property in the Executrix. Amburn appeals.
We affirm.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                             Affirmed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and J OHN W. M CC LARTY, J., joined.

R. Deno Cole, Knoxville, Tennessee, for the appellant, Brittany C. Bradley, formerly
Amburn.1




        1
        Ms. Amburn states that she married after this suit was filed and that her married name is “Bradley.”
For ease of reference, we shall continue to refer to her by her former name, “Amburn,” as reflected
throughout the record on appeal.
Michael S. Kelley, Kathy D. Aslinger, Briton S. Collins, Knoxville, Tennessee, for the
appellee, Karen Stoner.

                                               OPINION

                                                     I.

      In June 2007, Irma Collins, the mother of both the Executrix and the Judgment
Debtor, filed a lawsuit against the Judgment Debtor in Ohio.2 She died on May 31, 2008.
The Executrix then prosecuted the Ohio lawsuit to its conclusion.

       When he was sued in Ohio, the Judgment Debtor owned a condominium in Knox
County (“the Breckenridge property”). In February 2009, the Judgment Debtor offered the
Breckenridge property “for sale by owner” and reached an agreement to sell it to sisters, Sue
Wells and Patsy Meade (“the Buyers”), for $129,000. On February 12, 2009, the Judgment
Debtor conveyed the property to the Buyers by warranty deed, and the Buyers, after making
a down payment, executed a note and deed of trust to the Judgment Debtor for $114,000, the
remaining balance owed on the sale.

      In March 2009, the Judgment Debtor gave his deposition in the Ohio lawsuit. On
September 24, 2009, the Ohio court entered a summary judgment against the Judgment
Debtor awarding the Executrix $789,276.99 plus statutory interest and costs (“the Ohio
judgment”).

       On November 20, 2009, the Executrix filed suit in Tennessee to register and enforce
the Ohio judgment. Three days later, the complaint was served on the Judgment Debtor, who
was then living with his wife, Robin Collins (“Robin”), at a house he owned on Eden Lane
in Knoxville. Two weeks after that, on December 4, 2009, the property that is the subject of
the present case – a modular home and lot located in Knoxville at 2835 Daybreak Way (“the
Daybreak Way property”) – was purchased.

       At trial, John Shelton, sales consultant for the seller, Clayton Homes, testified
regarding the sale. The Judgment Debtor along with Robin (collectively “the Collins”), and
Robin’s daughter, Amburn, were all present at the sale. According to Shelton, the Judgment
Debtor was involved “quite a bit.” All of the closing documents were completed solely in
Amburn’s name. Shelton testified that it was a cash deal and the Judgment Debtor carried
the money into the room in a cloth bank bag. Shelton recalled that the cash totaled around


        2
         The record does not reflect the basis of the suit. The gravamen of the complaint is not relevant to
the issues on this appeal.

                                                    -2-
$107,000, and mostly consisted of hundred dollar bills that were in bank wrappers separating
them into thousand dollar groupings. The closing documents included a buyer’s cash
disclosure form which reflected that the transaction was a “true cash” transaction – meaning
there was no outside financing source. “Brittany Amburn” was listed on the document as the
source of the cash payment. The deed titled the Daybreak Way property in Amburn’s name
alone. Shelton had no knowledge as to whom the cash belonged.

         On February 8, 2010, the Executrix obtained a judgment from the Chancery Court for
Knox County registering the Ohio judgment in Tennessee (“the Tennessee judgment”). On
March 31, 2010, the Executrix filed suit in this case against Amburn. The suit essentially
sought to set aside the conveyance of the Daybreak Way property to Amburn on the ground
that it had been fraudulently conveyed to her by the Judgment Debtor. The suit also sought
to reform the deed to reflect the Executrix as the property’s lawful owner. In response,
Amburn denied the essential allegations of the complaint and demanded a jury trial.

       In April 2011, the Executrix moved for summary judgment. In response to the
Executrix’s statement of undisputed facts, Amburn “categorically denied that [Judgment
Debtor] purchased the Daybreak Way property.” As support, Amburn submitted the
Judgment Debtor’s June 23, 2011, affidavit in which he denied using the money he obtained
from the sale of the Breckenridge property to purchase the Daybreak Way property.
Asserting that he contributed “very little” of his own cash, the Judgment Debtor stated in his
affidavit that the money to purchase the Daybreak Way property belonged to his wife, Robin,
and was mostly funds she received from her father’s estate and life insurance proceeds
following her father’s death in March 2008. The Judgment Debtor denied that he was
rendered insolvent by the Daybreak Way property transaction. He contended that he still had
most of the proceeds from the Breckenridge property sale. The Judgment Debtor further
denied the allegation that Amburn provided no consideration in the Daybreak Way property
purchase. He testified that Amburn turned over most of the $8,000 she received from the
government as a “first-time home-buyer [sic]” to Robin in exchange for her mother’s
assistance in purchasing the home. In summary, Amburn contended in her response to the
Executrix’s complaint that there were disputed facts “as to whether or not proceeds from [the
Judgment Debtor], . . . , were used to purchase real property titled in the name of [Amburn].”

       The trial court denied the Executrix’s motion for summary judgment based on its
finding that “there are disputed material questions of fact that must be reconciled by a jury.”
To that end, the court ordered that the jury would be directed to report its verdict by
answering the following question: “Do you unanimously find, by a preponderance of the
evidence, that the December 4, 2009 purchase of 2835 Daybreak Way . . . was a fraudulent
transfer?”



                                              -3-
       At the October 27, 2011, trial, the Executrix testified by videotape deposition from
Ohio, where she resides with her husband. The Executrix, 64, a retired deli clerk, explained
that she was unable to travel to Tennessee for trial because of multiple medical issues. She
noted that the Judgment Debtor is her only sibling. She stated they were close to each other
and to their mother growing up. In recent years, however, a feud had developed that the
Executrix said began in 2004 when the Judgment Debtor initiated a move of their elderly
mother from Ohio to Tennessee to live close to him. According to the Executrix, once their
mother was in Tennessee, the Judgment Debtor often left her alone for days at a time and
would not allow her to call the Executrix. In the Executrix’s opinion, the Judgment Debtor
attempted to isolate their mother from the rest of the family. In 2006, their mother spent the
Thanksgiving and Christmas holidays with the Executrix in Ohio. Soon after, she moved into
the Executrix’s Ohio home where she remained until her death.

       The Executrix testified that she was determined to carry on the proceeding her mother
had initiated, including continuing her efforts to collect on the Tennessee judgment.
According to the Executrix, the Judgment Debtor had not worked in 20 to 30 years and his
only income sources of which she was aware were the VA disability benefits and social
security retirement benefits he received. She noted that the Judgment Debtor had once
briefly served in the Navy. She stated that he received disability benefits for “anger
management” issues.

        Sue Wells testified regarding the Buyers’ purchase of the Breckenridge property.
Wells testified that, in the Fall of 2009, the Judgment Debtor offered to reduce their note by
$5,000 – to $124,000 – if the money was paid immediately, within 2 to 3 days, and in cash.
To complete the transaction, Wells obtained a loan and accompanied the Judgment Debtor
to her bank, where the Judgment Debtor received full payment in cash. Wells testified that
the Judgment Debtor “put it in his coat pocket and left.” Upon further questioning, Wells
stated she dealt solely with the Judgment Debtor throughout the transaction.

        Amburn testified as the last witness. When the Daybreak Way property was
purchased, Amburn was eighteen and unemployed; before and since then, she has been
seasonally employed at the Knoxville Zoo and earned $7.25 an hour. She had briefly held
various other hourly-wage jobs. Amburn estimated she earned less than $10,000 in 2009.
Amburn admitted that the Judgment Debtor contributed “some” of the money used to
purchase the Daybreak Way property. She acknowledged that she had not contributed any
of the money. She said she had no personal knowledge as to how much the Judgment Debtor,
her mother, and/or anybody else actually contributed to the purchase. Amburn testified she
had not given the Judgment Debtor anything in exchange for the money he contributed, nor
had she agreed to make payments to him. Amburn stated that the “only exchange we had
over the house was that it was going to be a place that my mother could go and live . . . [in

                                             -4-
the event of] [the Judgment Debtor’s] death or a divorce or separation.” Initially, Amburn
disagreed that the house was actually intended for Robin rather than for her, saying that she,
Amburn, lived there and had been “homeless,” having slept in her car a few times before the
property was purchased. In later testimony, however, Amburn said that, at the time the
Daybreak Way property was purchased, she understood “that it wasn’t a house for [her] so
much as it was a house for [her] mother.” Amburn explained that, for this reason, when she
and the Judgment Debtor had disagreements, it was she, rather than the Judgment Debtor,
who left.

        The trial court read Amburn’s October 2010 responses to interrogatories into the
record. In relevant part, Amburn was asked to state with particularity the source of all funds
used to purchase the Daybreak Way property. She answered that “[the Judgment Debtor] and
Robin . . . paid for 2835 Daybreak Way. . . .” Asked to state with particularity “[the
Judgment Debtor’s] involvement in the purchase,” Amburn again answered that “[the
Judgment Debtor] and Robin . . . paid for 2835 Daybreak Way.” Asked why the property
was paid for in cash, Amburn answered that “Daybreak Way was paid in cash by a
combination of cash from [the Judgment Debtor] and Robin . . . , a portion of which they
jointly shared.” Significantly, Amburn answered each question “[u]pon information and
belief.”

        Just after the Daybreak Way property was purchased, Amburn and the Collins moved
into the house. At that time, the Collins vacated their Eden Lane home and allowed it to go
into foreclosure. Amburn testified that her mother told her that “they couldn’t afford the
payment and that it was too much house for [the Judgment Debtor] and her [at] their age.”
Amburn admitted that, in an earlier deposition, she instead testified that the Judgment Debtor
and Robin left the Eden Lane home in order to avoid making payments on it when there was
an outstanding judgment against them. Amburn testified that her only knowledge “of the
whole event” was what Robin said after suit was filed.

       After purchasing the Daybreak Way property, the Collins furnished the entire home
and paid the utility bills. They moved into the master bedroom, while Amburn took another
bedroom. Amburn testified she moved out after a few months because she could not afford
to take care of the house and the utilities and because she, her mother and the Judgment
Debtor did not get along. On cross-examination, she conceded that, in her deposition, she
did not mention that she could not afford the bills as a reason she left, but had mentioned
only that she and the Judgment Debtor could not get along. She lived with a friend in
Knoxville until June 2010, returned to the Daybreak Way property until November, then
moved out again. According to Amburn, around the time of her departure, the Judgment
Debtor and Robin had also left the Daybreak Way property and began moving around,
staying at various motels, in order to avoid the Executrix’s lawsuit.

                                             -5-
        In March 2011, Amburn, her then-fiancee and Robin, who had separated from the
Judgment Debtor, moved into the Daybreak Way property, where they remained at the time
of trial. Amburn agreed she never paid any utilities or other bills related to the Daybreak
Way property until she and her now-husband began living there in 2011. Amburn testified
she had never heard of the Executrix, the estate she represented, or the judgment she had
against the Judgment Debtor until the present lawsuit was filed. She said the Judgment
Debtor had not been back to the Daybreak Way property since he lived there just after its
purchase and it was not “his” house; she considered it hers. She denied ever having an
agreement to allow the Judgment Debtor to live there at his will.

         At the close of the Executrix’s proof-in-chief, the Judgment Debtor moved for a
directed verdict. Following argument, the court found that “there is plenty enough evidence
. . on the [Executrix’s] side of the ledger” and denied the motion. After the Judgment Debtor
rested without calling any witnesses or offering other proof, the Executrix also moved for
a directed verdict. In opposing the motion, Amburn asserted, with little elaboration, that jury
questions remained about which reasonable minds could differ. Further, Amburn argued
that, through her own testimony, she had “explained away everything” with respect to any
indication of fraud presented by the Executrix’s proof.

         The trial court declined to allow the case to go to the jury, and directed a verdict in
favor of the Executrix. In support of its ruling, the trial court found “that reasonable minds
could not differ as to the conclusions to be drawn from the evidence” – and that the only
reasonable conclusion was that the Judgment Debtor had fraudulently conveyed the Daybreak
Way property to Amburn. The court entered judgment in favor of the Executrix and ordered
that title to the property be divested out of Amburn and into the Executrix within 10 days
from the date of entry of its judgment. Amburn timely filed a notice of appeal.

                                              II.

       Amburn presents a single issue for our review:

              Did the trial court err in granting a directed verdict in favor of
              the Executrix?

                                              III.

       With respect to directed verdicts, our standard of review is as follows:

              In ruling on such a motion, the standard applied by both the trial
              court and the appellate court is the same as that applied to a

                                              -6-
              motion for directed verdict made during trial. Therefore, the trial
              court and appellate court are required to take the strongest
              legitimate view of the evidence in favor of the opponent of the
              motion, allow all reasonable inferences in his or her favor,
              discard all countervailing evidence, and deny the motion when
              there is any doubt as to the conclusions to be drawn from the
              evidence. A verdict should not be directed during, or after, trial
              except where a reasonable mind could draw but one conclusion.

Usher v. Charles Blalock & Sons, Inc., 339 S.W.3d 45, 57 (Tenn. Ct. App. 2010) (citing
Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121, 130-31 (Tenn. 2004)(citations
omitted)).

      A trial court’s decision to grant a motion for directed verdict is a question of law.
Underwood v. HCA Health Servs. of Tennessee, Inc., 892 S.W.2d 423, 425 (Tenn. Ct. App.
1994). This Court reviews questions of law de novo with no presumption that the trial court
decided them correctly. S. Constructors, Inc. v. Loudon Co. Bd. of Educ., 58 S.W.3d 706,
710 (Tenn. 2001); Green v. Moore, 101 S.W.3d 415, 418 (Tenn. 2003); Bowden v. Ward,
27 S.W.3d 913, 916 (Tenn. 2000).

                                              IV.

                                               A.

        Amburn challenges the grant of directed verdict. She challenges the trial court’s
finding that the evidence reasonably leads only to the conclusion that the transfer of the
Daybreak Way property to her was fraudulent. Amburn contends that the court, in order to
find that no reasonable mind could reach any other conclusion, necessarily failed to take the
strongest legitimate view of the evidence in her favor. She argues that the court erred in
failing to construe the evidence in her favor and by failing to disregard all countervailing
evidence. Stated differently, Amburn contends that allowing the case to go to the jury “could
have resulted in the Court ruling that a fraudulent transfer did not occur.” The Executrix
responds that the trial court’s judgment is supported by undisputed evidence of both actual
and constructive fraud and should be affirmed.

       As previously noted, the trial court granted the Executrix a directed verdict at the close
of the proof. It did so pursuant to Tenn. R. Civ. P. 50.01. The Rule provides as follows:

              A motion for a directed verdict may be made at the close of the
              evidence offered by an opposing party or at the close of the case.

                                               -7-
       The court shall reserve ruling until all parties alleging fault
       against any other party have presented their respective
       proof-in-chief. A party who moves for a directed verdict at the
       close of the evidence offered by an opponent may offer evidence
       in the event that the motion is not granted, without having
       reserved the right so to do and to the same extent as if the
       motion had not been made. A motion for a directed verdict
       which is not granted is not a waiver of trial by jury even though
       all parties to the action have moved for directed verdicts. The
       order of the court granting a motion for a directed verdict is
       effective without any assent of the jury.

En route to its ruling, the court stated, in part:

       THE COURT: I am . . . leaning toward a directed verdict. The
       evidence here is undisputed. [The Judgment Debtor] got
       $108,000.00 in cash. [The Judgment Debtor] took $107 -
       whatever the purchase price on this property - - [the Judgment
       Debtor] took it in himself. He was, if not the main moving force
       in buying the house, he was involved - - I forget the witness’s
       exact words, but involved to a great degree.

       Then you have all these badges of fraud, which I’m telling you,
       they are right here, every one of them, and there is no
       explanation offered. [Amburn] just says, “Look, I don’t know,
       I don’t know.” On top of that, you have [Amburn] in her own
       deposition saying, look, mother and [the Judgment Debtor]
       stopped paying on the Knoxville house and let it go into
       foreclosure because they didn’t want to continue to pay the debts
       and bills associated with it when they were going to get a big
       judgment against them and just lose it.

                                    *    *    *

       Now, if you can tell me what other conclusion could a
       reasonable mind draw, Mr. Cole? There is no question. There
       is no question but that [the Judgment Debtor] contributed.
       There is no question but that he contributed . . . to the purchase
       of this property. And there is no evidence that anybody else did.



                                        -8-
              [Mr. Cole, Counsel for Amburn]: Yes, there is, your Honor.

                                           *   *     *

              It is in the Interrogatories, [Amburn] stated that Robin Collins
              contributed as well. That is in evidence.

              THE COURT: Oh, I remember it.

                                           *   *     *

              State with particularity the source of all the funds used to
              purchase 2835 Daybreak Way, . . . . Upon information and
              belief, [the Judgment Debtor] and Robin Collins paid for 2835
              Daybreak Way, which [Amburn] believes to total $109,000.00.

              Explain why . . . Daybreak Way was purchased with cash. Upon
              information and belief, Daybreak Way was paid in cash by a
              combination of cash from [the Judgment Debtor] and Robin
              Collins, of course, . . . which they jointly secured.

              Mr. Cole, the motion is granted. The motion is good. The
              badges of fraud, the Court’s opinion, no reasonable mind could
              differ. I . . . thought about reserving judgment on the motion
              and going ahead and submitting the matter to the jury, but, no,
              the motion . . . is good upon the evidence here. There is just no
              reasonable mind could reach any other conclusion. There is just
              too much, just too much. . . .

        In addition to its oral pronouncement, the trial court made additional pertinent findings
as follows:

              The [Judgment Debtor] . . . used One Hundred Seven Thousand
              Dollars ($107,000), in cash for the purchase of [the Daybreak
              Way property].

              [The Executrix] became a creditor of Judgment Debtor before
              the purchase of . . . [the Daybreak Way property].




                                               -9-
                 Judgment Debtor did not receive from . . . [Amburn] anything
                 of an equivalent value in exchange for his purchase of . . . [the
                 Daybreak Way property].

                 Judgment Debtor was insolvent or rendered insolvent as a result
                 of the purchase of [the Daybreak Way property].

                 With respect to the nine (9) “badges of fraud” identified by the
                 Court in its previous findings, [Amburn] has not carried her
                 burden of providing proof of an explanation for these suspicious
                 circumstances.

                                                         B.

        Our analysis of the trial court’s grant of a directed verdict begins with a review of the
statutory requirements for establishing a claim for a fraudulent conveyance. Tennessee’s
version of the applicable law – the Uniform Fraudulent Transfer Act – is codified at Tenn.
Code Ann. § 66-3-301, et seq. (2004) (“UFTA”). The Act delineates two types of fraudulent
transfers – the first applies to a debtor’s present and future creditors and involves actual
fraud, while the second applies only to present creditors and addresses constructive fraud.
See Tenn. Code Ann. §§ 66-3-305(a)(1), 66-3-306(a)(2004). Various remedies are available
to an affected creditor. See Tenn. Code Ann. § 66-3-308.3 Under the UFTA, a “transfer” is
defined, with respect to both statutes, as including “every mode, direct or indirect, absolute
or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest
in an asset, and includes payment of money, release, lease, and creation of a lien or other
encumbrance.” Tenn. Code Ann. § 66-3-302(12). In the instant case, there is no dispute that
a transfer took place with respect to the Daybreak Way property. Taking the statutes in turn,
we thus consider whether the transfer was fraudulent.

                                                    C.

       In order to establish a claim of a fraudulent transfer pursuant to Section 66-3-
305(a)(1), it must be shown that the transfer was made with the “actual intent to hinder,
delay, or defraud any creditor of the debtor.” In making this determination, the courts are
guided by a consideration of the following factors, including whether



        3
         In its final judgment, the trial court stated that the parties in the present case agreed in a pre-trial
conference that divesting title of the Daybreak Way property out of Amburn and into the Executrix was the
proper remedy if a fraudulent transfer was established.

                                                      -10-
              (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.

Tenn. Code Ann. § 66-3-305(b). The record reflects that the court considered the evidence
regarding each of the above-cited statutory factors and expressly found (with the exception
of factor eleven, which it held was inapplicable in the present case) the existence of every
factor tending to establish actual fraud on the Judgment Debtor’s part. We quote pertinent
portions of the court’s ruling elaborating as to certain factors:

              Number 3: The transfer or obligation was disclosed or
              concealed. The Court finds that the titling of the property in . . .
              Amburn’s name was indeed an attempt to conceal the transfer.




                                             -11-
              Number 5: The transfer was of substantially all the [D]ebtor’s
              assets. The Court believes that factor is present here. Again[,]
              the transferor here, [Judgment Debtor], had let a house in
              Knoxville go into foreclosure and lose it specifically in an
              attempt to try to avoid losing it toward payment of this
              [judgment] debt which he already owed.

              Number 6: The debtor absconded. That factor is present here.
              [Judgment Debtor] wasn’t here at any time in this lawsuit . . . .

              Number 7: The debtor removed or concealed assets. The court
              finds that factor is present here. You get $109,000.00 in cash,
              cash cash, on the sale of a house . . . there is nothing illegal
              about that, but it is extremely unusual, and then you turn around
              a short period of time later and you buy another house with cash
              cash for $107,000.00 and title it in somebody else’s name, the
              Court concludes that was an attempt to conceal the assets.

              Number 8: The value of the consideration received by the debtor
              was reasonably equivalent. Here [Judgment Debtor] didn’t
              receive anything of value other than a promise, oral promise, not
              included in the title papers . . . that . . . Robin . . . would have a
              place to live.

        The burden is on the plaintiff to prove that a particular transfer is fraudulent. The
finding of fraud is based upon the facts and circumstances of each case and is typically
proven by circumstantial evidence. Nadler v. Mountain Valley Chapel Bus. Trust, No.
E2003-00848-COA-R3-CV, 2004 WL 1488544, at *2 (Tenn. Ct. App. E.S., filed June 30,
2004) (citing Macon Bank & Trust Co. v. Holland, 715 S.W.2d 347, 349 (Tenn. Ct. App.
1986)). In addition to the above-cited statutory factors, circumstantial evidence may come
in the form of “badges of fraud” – circumstantial indicators used by the courts to perceive
a debtor’s intent for fraudulent transfer purposes. Badges of fraud have been described as
“any fact[s] that throw[] suspicion on the transaction and call[] for an explanation.” Macon
Bank, 715 S.W.2d at 349. Tennessee courts have identified the following badges of fraud:

              1. The transferor is in a precarious financial condition.

              2. The transferor knew there was or soon would be a large
              money judgment rendered against the transferor.



                                              -12-
              3. Inadequate consideration was given for the transfer.

              4. Secrecy or haste existed in carrying out the transfer.

              5. A family or friendship relationship existed between the
              transferor and the transferee(s).

              6. The transfer included all or substantially all of the transfer’s
              nonexempt property.

              7. The transferor retained a life estate or other interest in the
              property transferred.

              8. The transferor failed to produce available evidence explaining
              or rebutting a suspicious transaction.

              9. There is a lack of innocent purpose or use for the transfer.

Nadler, at *2 (citing In re Hicks, 176 B.R. 466, 470 (Bankr. W.D. Tenn. 1995)); Stone v.
Smile, E2009-00047-COA-R3-CV, 2009 WL 4893563, at *5 (Tenn. Ct. App. E.S., filed Dec.
18, 2009). “The presence of one or more of the badges of fraud gives rise to a presumption
of fraud and consequently shifts the burden of disproving fraud to the defendant.” Id. (citing
Macon Bank, 715 S.W.2d at 349).

        Here, the trial court expressly found that all nine “badges of fraud” were present.
We agree. On our review, we conclude that the presence of the statutory factors set forth in
Section 66-3-305(b) as well as each of the common law badges of fraud amount to
overwhelming, circumstantial indicators of the Judgment Debtor’s “actual intent to hinder,
delay, or defraud” his creditors, the Executrix in particular. In considering the badges of
fraud, the trial court further observed, in relevant part:

              The lack of an innocent purpose for the transfer. Another big
              thing here, there is absolutely no explanation offered for any of
              this, no explanation. [Amburn] - - And let me say this. I do not
              mean to lay any of this at [Amburn’s] door. [. . . .]. There is no
              evidence, no evidence, that she was culpable personally in any
              way. I think this was a scheme of [the Judgment Debtor] and,
              unfortunately, [Amburn] got caught up in it.




                                             -13-
              And then, . . . : The transferor’s failure to offer evidence
              explaining away the suspicious nature of the transfer. Again,
              [the Judgment Debtor] is not even here, not been here at any
              time in connection with this lawsuit.

              Robin [ ] is not here. She has not been here at any time . . . .
              She wasn’t here at the trial today.

              There is absolutely no explanation offered here. [. . . .]. Too
              many badges of fraud, too many facts. The fact that [the
              Judgment Debtor] asked for the cash [from the Buyers of the
              Breckenridge property], asked for it early, by the way, asked for
              it early, got it early upon condition that it would be paid in cash.
              And then shortly thereafter turned around and took a large sum
              of money, $107,000.00, in a cloth bag, all but the last $2,000 of
              it still bearing the bank bands, and paid for this house.

              Just too many, . . . too many things to be explained away. You
              just couldn’t . . . he just didn’t, he couldn’t explain them away.

        Again, “[w]here the circumstances of a transfer of property by a debtor are suspicious,
the failure of the parties to testify or to produce available explanation or rebutting evidence
is a badge of fraud.” Union Bank v. Chaffin, 24 Tenn. App. 528, 147 S.W.2d 414 (1940).
In the instant case, proof of the existence of every applicable statutory factor and numerous
badges of fraud surround the transfer of the Daybreak Way property. The relevant facts thus
“threw the burden of going forward with proof of an explanation on the [Judgment Debtor].”
Macon Bank and Trust Co. v. Holland, 715 S.W.2d at 349. No such proof was
forthcoming. Accordingly, the evidence supports the conclusion that a fraudulent transfer
was conclusively shown. More significantly in the context of the Executrix’s motion for
directed verdict, we conclude that there were no evidence upon which a jury could base any
other conclusion.

                                              D.

     We next consider whether the transfer of the Daybreak Way property is properly
deemed fraudulent under Tenn. Code Ann. § 66-3-306(a). That Section provides as follows:

              A transfer made or obligation incurred by a debtor is fraudulent
              as to a creditor whose claim arose before the transfer was made
              or the obligation was incurred if the debtor made the transfer or


                                             -14-
              incurred the obligation without receiving a reasonably
              equivalent value in exchange for the transfer or obligation and
              the debtor was insolvent at that time or the debtor became
              insolvent as a result of the transfer or obligation.

Thus, the elements required to establish a claim of a constructively fraudulent transfer are:

              1) The creditor’s claim arose before the transfer;
              2) The debtor did not receive a reasonably equivalent value; and
              3) The debtor was insolvent or rendered insolvent by the
              transfer.

Tenn. Code Ann. § 66-3-306(a); Stone v. Smile, 2009 WL 4893563 at *4.

        As set out earlier in this opinion, the trial court expressly found that each element was
proven at trial. First, as Amburn concedes, there is no question that the first element exists;
the Executrix became a creditor of the Judgment Debtor before the Daybreak Way property
was purchased. The second element focuses on the value of the consideration the Judgment
Debtor received in exchange for the transfer. Amburn argues that there is a disputed issue
of fact “about the exact amount [the Judgment Debtor] contributed, if any,” to the purchase
of the Daybreak Way property. We disagree. At trial, Amburn admitted that the Judgment
Debtor had contributed “some” of the $107,000 plus purchase money. Further, the proof
showed that the purchase was made with cash that the Judgment Debtor supplied soon after
the Judgment Debtor received around $109,000 in cash from his sale of the Breckenridge
property. While Amburn stated in her interrogatory response, “upon information and belief”
– rather than personal knowledge – that the purchase was made by both the Judgment Debtor
and Robin, she produced no evidence at trial of any other source of the money other than the
Judgment Debtor. On the evidence before us, no disputed issue of fact exists as to whether
the money was contributed by the Judgment Debtor. All of it was contributed by him.

       This leads us to consider whether the Judgment Debtor received anything of
“reasonably equivalent value” in return for the $107,000 plus he expended. Amburn insists
that the court failed to consider that the Judgment Debtor received “something” from
Amburn in exchange for the transfer – that is, the Judgment Debtor “received a promise that
[wife Robin] would receive a place to live” if the Judgment Debtor died or she and the
Judgment Debtor separated. To the contrary, the trial court found that the Judgment Debtor
received nothing of value from Amburn in exchange for the purchase and transfer of the
property other than “a promise, oral promise, not included in the title papers . . . that . . .
Robin . . . would have a place to live.” At trial, Amburn conceded that she contributed
nothing toward the purchase of the property, nor did she give the Judgment Debtor a deed


                                              -15-
of trust for the property, exchange anything of value, or promise him any payment in the
future. The UFTA expressly provides that “[v]alue is given for a transfer or an obligation
if, in exchange for the transfer or obligation, property is transferred or an antecedent debt is
secured or satisfied, but value does not include an unperformed promise made otherwise than
in the ordinary course of the promisor's business to furnish support to the debtor or another
person.” Tenn. Code Ann. § 66-3-304(a) (emphasis added). Moreover, the official
comments to the same section make clear that value is to be determined from the perspective
of the creditor whereby it is stated that “[c]onsideration having no utility from a creditor’s
viewpoint does not satisfy the statutory definition.” Certainly, Amburn’s promise to allow
her mother to live in her home is of no value to the Executrix or any other of the Judgment
Debtor’s creditors.

        Lastly, the trial court found that the Judgment Debtor was insolvent or rendered
insolvent by the purchase of the Daybreak Way property. Section 66-3-303(a) of the UFTA
provides that a “debtor is insolvent if the sum of the debtor’s debts is greater than all of the
debtor’s assets, at a fair valuation.” With entry of the judgment stemming from the Ohio
lawsuit, the Judgment Debtor was indebted to the Executrix alone for at least $789,276.99.
There was evidence showing that, from February 2009 through August 2011, the Judgment
Debtor never maintained a bank account balance over $10,000, and, many times, it was
considerably less. In fact, in several months, the records reflected a negative account balance
and the bank’s imposition of overdraft fees. The evidence showed that the Judgment Debtor
received income in the form of disability benefits that totaled some $4,000 a month; no other
evidence of any income source was presented. In addition, the Judgment Debtor had owned
two properties – Eden Lane and the Breckenridge property; the first was foreclosed upon and
the second sold. No other evidence of any assets of the Judgment Debtor was presented.
Amburn testified that the Judgment Debtor and Robin had allowed their Eden Lane home to
go into foreclosure and began moving from motel to motel in an effort to avoid payment of
the judgment. In short, Amburn’s contention that a jury may have reasonably concluded that
the Judgment Debtor owned assets other than those reflected in his bank account records is
most unpersuasive; such a finding would amount to nothing more than pure conjecture as
there was no basis for such a finding in the evidence. In our view, the evidence
overwhelmingly preponderates in favor of the finding of a constructively-fraudulent transfer,
to the exclusion of any other conclusion.

                                              V.

       In summary, if, from all of the evidence, there is a reasonable basis for disagreement
among reasonable persons as to whether the Judgment Debtor fraudulently transferred the
property, then the question is one for the jury. Given the evidence before us, we conclude
that there is but one, inescapable conclusion to be drawn from the evidence at trial – the


                                              -16-
Judgment Debtor’s transfer of the Daybreak Way property to Amburn was fraudulent
pursuant to both Tenn. Code Ann. § 66-3-305(a) and § 66-3-306(a). Accordingly, the trial
court did not err in granting the Executrix a directed verdict.

                                            VI.

       The judgment of the trial court is affirmed. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the trial court’s judgment and for collection
of costs assessed below. Costs on appeal are taxed to the appellant, Brittany C. Bradley.




                                                   _______________________________
                                                   CHARLES D. SUSANO, JR., JUDGE




                                            -17-
