                                                                                         FILEO
                                                                                COURT OF APPEALS
                                                                                       DIVISION II

                                                                               2015 MAY 27 AM 9: 35
                                                                               STATE OFW
    IN THE COURT OF APPEALS OF THE STATE                                                W             NON
                                                                               B

                                                    DIVISION II


 SHELCON CONSTRUCTION GROUP, LLC,                                                  No. 46235 -4 -II

 a Washington limited liability company,

                                         Respondent,


          v.




 SCOTT M. HAYMOND and JANE DOE
 HAYMOND, husband and wife; DARRA
 ODENWALDER, trustee for The Darra
 Marie Haymond Living Trust,

                                         Appellants,


 A -3 VENTURE LLC, a Washington limited
 liability company; A-4 VENTURE, an
 unknown entity type; A -1111 VENTURE
 LLC, a Washington limited liability company;
 14224 PIONEER LIVING TRUST; and                                           UNPUBLISHED OPINION
 ANCHOR MUTUAL SAVINGS BANK,


                                         Defendants.


         WQRSWICK, P. J. —           Scott Haymond and Darra Odenwalder appeal the trial court' s order


issued   under   the Uniform Fraudulent Transfers Act (UFTA),               chapter 19. 40 RCW, avoiding

Haymond' s transfers of property to Odenwalder as trustee of a trust. Odenwalder argues that ( 1)

Odenwalder and the trust were necessary parties to the action, and the trial court lacked

jurisdiction    by   not   joining   them; ( 2)   Shelcon Construction Group failed to properly bring an

action under the UFTA, chapter 19. 40 RCW before seeking its relief; (3) the statute of

limitations had run on Shelcon' s claims; and ( 4) the subject property was improperly attached.

Haymond        argues   that the trial   court erred   by   avoiding the transfers because ( 5) Shelcon failed to
No. 46235 -4 -II



prove all of the elements of fraud before avoiding the transfers, and ( 6) the trial court took no

testimony on the issue. We reverse the order and remand to the trial court for an evidentiary

hearing to determine several disputed factual issues and to resolve whether the statute of

limitations has run on Shelcon' s fraudulent transfer claim regarding the club membership. We

reverse the avoidance of the transfer of the house, because the statute of limitations has run.

                                                         FACTS


          On October 28, 2011, Shelcon obtained a judgment and decree of foreclosure against


Scott Haymond. We affirmed that judgment separately in Shelcon v. Haymond, et al., No.

42845 -8 -II (Wash. Ct.       App. May _,    2014) ( consolidated          with   No. 44995- 1 - II). This appeal


concerns the trial court' s order in a postjudgment motion by Shelcon, whereby the trial court

avoided two transfers of property as described below.

          Scott Haymond lived        at a residence     located    at   the East End Lake Tapps Rod & Gun Club


 the   club).   Haymond owned the residence, but the club owned the underlying land. Haymond

also owned a membership interest in the club. Darya Odenwalder is Scott Haymond' s sister.
                                                                          Haymondl
          Haymond       and   Odenwalder   created     the Darra M.                    Living Trust (the trust) on

April 6, 2006, naming Odenwalder as trustor and trustee. Scott Haymond' s daughter was the

trust' s sole beneficiary. On the same day, Haymond transferred his residence and his

membership in the club to " Darra Marie Haymond Trustee of the Darra M. Haymond Living




1
    Darra M. Haymond is the         same person as      Darra Odenwalder. " Haymond" appears to be
Odenwalder' s maiden name. Darra Odenwalder is Scott Haymond' s sister. The record does not
explain    why   she   is   sometimes referred   to   as "   Darya Haymond,"       or why the trust bears that name.



                                                               2
No. 46235 -4 -II



Trust. "2 CP at 76. The bill of sale shows no monetary consideration for the transfer; instead,

Haymond transferred the house and club membership in consideration of "WAC- 458 -61 -375

CHANGE OF IDENTITY the receipt of which is acknowledged." 3 Clerk' s Papers ( CP) at 76.

Haymond owned and transferred his residence as a building only; he did not own the underlying

land. Instead, the club owned the land upon which the house stood. This transfer was not


recorded.




          On November 14, 2008, Haymond executed an identical transfer. 4 This transfer was

recorded with the Pierce County Auditor. Haymond claimed this second transfer was an attempt

to give public notice of the transfer. Again, this transfer included Haymond' s personal residence


at the   club ( but not   the underlying land),   and Haymond' s club membership.

          After the transfer of his residence, Haymond continued to live alone at the residence most

of the time. Odenwalder and Haymond both paid for certain bills relating to the transferred

residence and club membership. The trust did not have a bank account. Odenwalder paid




2 This wording is ambiguous regarding whether Haymond transferred the property to
Odenwalder personally or to the trust. Due to ambiguities in the record and in the briefing, we
assume both Odenwalder and the trust have potential property interests in the transfers..

3 This Department of Revenue provision, repealed effective December 2005, exempted real
estate transfers from tax liability where they were merely a change in form or identity within a
family corporation. Former WAC 458 -61 - 375 ( 1994) ( replaced by WAC 458 -61A -211). This
provision is now found at WAC 458 -61A -211; it provides that a transfer involving a trust, among
other entities, where " no change      in beneficial ownership has   occurred,"   is exempt from tax
liability.

4 Like the 2006 transfer, the 2008 Bill of Sale transferred Haymond' s residence and his club
membership to " DARRA MARIE ODENWALDER TRUSTEE OF THE DARRA M.
ODENWALDER LIVING TRUST" for no apparent monetary consideration but " in
consideration of WAC- 458 -61 -375 CHANGE OF IDENTITY the receipt of which is
acknowledged."       CP at 169.



                                                        3
No. 46235 -4 -II



property taxes and insurance on the residence on October 21, 2010. But Haymond paid for club

membership dues up until March 13, 2012. Haymond reimbursed Odenwalder for any bill

payments made for the residence, such as utilities and insurance. Odenwalder thought Haymond


structured the payments this way so that he would not appear as the payor.

            Regarding the transfer of the club membership, the club' s former president declared that

the club' s rules provided that a transferee of a club membership must obtain approval from the

club' s Board of Directors before being admitted as a member. But the club' s bylaws in the

record before us do not contain such a restriction. In December 2011, Haymond showed the club


president one of the bills of sale. Haymond requested that the president backdate the effective


date   of   the   club   membership   and residence   transfers " by   several years,"   but the president refused.


CP at 187. Haymond paid all club membership dues from 2002 until March 2012, when the club

approved Odenwalder as a new member. In March 2012, Odenwalder personally became a

member; the trust was never a member.



            Odenwalder stated in a deposition on August 27, 2012, that she thought the trust was


created to benefit Haymond' s daughter, to ensure that the house would not be taken from her.

Odenwalder recalled that Haymond had wanted to guard against future legal or financial

troubles.


            On December 31, 2009, Shelcon sued Haymond. On October 28, 2011, the trial court


issued a judgment in Shelcon' s favor. The judgment of $553, 849. 77 was entered jointly and

severally against Haymond and one of his business entities, A -1111 Venture, LLC. Shelcon' s

lawsuit named neither Odenwalder nor the trust as defendants.




                                                           4
No. 46235 -4 -II



           On February 20, 2014, nearly two and a half years after obtaining the judgment, Shelcon

initiated a supplemental proceeding to execute its judgment against Haymond. Shelcon filed a

motion under the same cause number as its judgment against Haymond, asking the trial court to

avoid Haymond' s transfers of (1) his membership in the club and ( 2) his personal residence.

Shelcon      made   this   motion under     the UFTA, RCW 19. 40. 041.          Shelcon claimed that Haymond


had transferred the club membership to Odenwalder personally on March 12, 2012, and that he

transferred his personal residence to the trust on April 6, 2006.


            On January 28, 2014, the trial court ordered Odenwalder to show cause why the transfers

should not be avoided. On March 14, 2014, the trial court conducted a show cause hearing based

on written submissions, where Odenwalder argued that ( 1.) the trial court had no jurisdiction over

her   or   the trust   assets, (   2) Shelcon' s claimed relief was time -barred because it was not sought


within     four   years of   the   challenged   transfers, ( 3)   Shelcon failed to properly initiate an action for

relief under chapter 19. 40 RCW, and ( 4) the trial court could not attach the trust' s property

without making Odenwalder or the trust parties.

            Haymond' s declaration in opposition to the motion to avoid the transfers stated that his

financial condition around the April 6, 2006 transfer date was " excellent. I was fully solvent and

in   great   financial    condition."     CP at 221. He supported this assertion with bank records from the

last few months of 2008. Haymond further declared that he created the trust for his daughter " to

provide for her college by conveying the Lake Tapps property to my sister as trustee for her in

case something happened to me. I had no idea that the real estate market would crash so steeply
and endanger        my     estate."   CP at 221 -22. He stated that he did not have financial problems until


2011.      He recalled that he asked to backdate the transfers with the club because " I had recorded




                                                                  5
No. 46235 -4 -II



the transfer and wanted the club to accept the trustee in accordance with the actual date of

transfer."    CP at 222. Finally, Haymond declared that he continued to live in the house because

his daughter could not live there alone and club rules forbade renting houses out.

           On March 14, 2014, the trial court granted Shelcon' s• motion, deciding the case on the .

submitted written materials. The trial court avoided both transfers " to the extent necessary to

satisfy the judgment      of   Shelcon Construction      Group,    LLC   against   Scott M. Haymond." CP at


234 -35.     Regarding the residence, the trial court avoided the transfer " to either Darra M.

Odenwalder       or   to Darra M. Odenwalder      as   trustee   for the Darra M. Haymond    Living   Trust." CP


at 234 -35. Haymond and Odenwalder each moved for reconsideration, and the trial court denied

both motions. Haymond and Odenwalder appeal.

                                                    ANALYSIS


                                             I. STANDARD OF REVIEW


           We review summary proceedings based purely on written documents de novo. Foster v.

Gilliam, 165 Wn.        App.   33, 54, 268 P. 3d 945 ( 2011).       We also review issues of statutory

interpretation de      novo.   State,   Dep' t of Ecology   v.   Campbell & Gwinn, 146 Wn.2d 1, 9, 43 P. 3d 4


 2002).    When interpreting a statute, we seek to ascertain the legislature' s intent. 146 Wn.2d at 9-

10. Where the meaning is plain on the statute' s face, we give effect to that meaning as

expressing the legislature'      s   intent. 146 Wn.2d at 9 - 10.


                            II. ODENWALDER' S STATUS AS AN AGGRIEVED PARTY


           As a threshold matter, Shelcon argues that Odenwalder cannot seek review because she is

not an aggrieved       party. We disagree.
No. 46235 -4 -II



          RAP 3. 1    provides      that "[   o] nly an aggrieved party may seek review by the appellate

court."   Generally,       appellants must       be    parties   to the   case.    Aguirre      v.   AT & T Wireless Servs., 109


Wn.   App.   80, 85, 33 P. 3d 1110 ( 2001).              But "[   i]n rare cases, a person who is not formally a party

to a case may have standing to appeal a trial court' s order because the order directly impacts that

person' s   legally   protected      interests." Polygon Nw. Co.             v.   Am. Nat. Fire Ins. Co.,           143 Wn. App.

753, 768, 189 P. 3d 777 ( 2008).


          Here, the trial court' s order avoiding Haymond' s transfers directly impacts the property

of Odenwalder and the trust. Thus, Odenwalder and the trust are aggrieved parties under RAP

3. 1. and Shelcon' s argument fails.

                   II. TRIAL COURT' S JURISDICTION OVER ODENWALDER AND THE TRUST


          Odenwalder argues that the trial court lacked jurisdiction over her and the trust by not

joining her as a necessary party. We disagree. 5, 6
          CR 19( a) provides that a person " shall" be joined if he " claims an interest relating to the

subject of   the   action and       is   so situated   that the disposition         of   the   action   in his   absence   may ...   as




a practical matter         impair   or   impede his ability to      protect       that interest."       A transferee of an




5                                                                                                                          Procedural
    Odenwalder      also argues      that the trial     court' s order violated          her due     process rights. "


due process requires that an individual have notice and an opportunity to be heard before he can
be deprived of an established property right." Veradale Valley Citizens' Planning Comm. v. Bd.
of Cnty. Comm'        rs        Cnty., 22 Wn. App. 229, 232, 588 P. 2d 750 ( 1978). Because we
                           of Spokane
remand the trial court' s order on the basis of the statute of limitations, we do not reach the issue
of whether Odenwalder' s due process rights were violated.


6 Odenwalder further argues that she was a necessary party under the Uniform Declaratory
Judgments Act, chapter 7. 24 RCW. Shelcon moved for avoidance of the transfers under chapter
19. 40 RCW, and did not seek declaratory judgment. The trial court' s order merely avoided the
transfers and did not grant declaratory judgment to Shelcon. Thus, we do not consider this
argument.




                                                                    7
No. 46235 -4 -II



allegedly fraudulent transfer is a necessary party to an action to avoid that transfer. In re

Schneider, 99 B. R. 52, 56 ( Bankr. W.D. Wash. 1989); Eggleston v. Sheldon, 85 Wash. 422, 434,


148 P. 575 ( 1915); Junkin      v.   Anderson, 12 Wn.2d 58, 67, 120 P. 2d 548 ( 1941); see also Nastro v.


D 'Onofrio, 263 F.     Supp.   2d 446, 450 ( D. Conn. 2003); Tanaka v. Nagata, 76 Haw. 32, 36, 868


P. 2d 450 ( 1994) (   agreeing with numerous cited authorities and holding " where a creditor alleges

a fraudulent transfer of property from a judgment debtor to a transferee who retains title to the

subject property or who claims an interest in the property or its proceeds, the transferee is a

necessary party to any action seeking to set aside the transfer ").

        RCW 6. 32.270 provides a procedure by which a trial court can adjudicate disputes such as

this one, where a judgment creditor and a third party contest a judgment debtor' s property in a

supplemental proceeding. The statute reads, in relevant part:

        In any supplemental proceeding, where it appears to the court that a judgment
        debtor may have an interest in or title to any real property, and such interest or title
        is disclaimed    by    the judgment   debtor   or   disputed   by   another person, ...   the court

        may, if the person or persons claiming adversely be a party to the proceeding,
        adjudicate the respective interests of the parties in such real or personal property,
        and may determine such property to be wholly or in part the property of the
        judgment debtor. If the person claiming adversely to the judgment debtor be not a
        party to the proceeding, the court shall by show cause order or otherwise cause
        such person to be brought in and made a party thereto.

RCW 6. 32. 270 ( emphasis added).


        By its plain terms, RCW 6. 32.270 provides that in a supplemental proceeding, a trial

court may adjudicate a judgment debtor' s disputed rights in property against the rights of a

person claiming the property adversely to the debtor. The statute further provides that an order

to show cause served on a nonparty is sufficient to make that person a party in a dispute over a

judgment debtor' s property. RCW 6. 32.270. Thus, a show cause order suffices to make a



                                                            8
No. 46235 -4 -II



person claiming adversely to the judgment creditor a party to a supplemental proceeding, and the

trial court may determine a judgment debtor' s disputed property rights in such a proceeding.

         Our Supreme Court held in Junkin v. Anderson that the predecessor to RCW 6. 32. 2707


authorized the trial court to adjudicate disputes even among those who were not full "parties."

12 Wn.2d    at   71.   The court wrote that it would be " irrational" to require the third party to be

made a plaintiff or defendant, because RCW 6. 32.270 was designed to resolve property disputes

even where   the third -party claimant was       not   before the trial   court.   Junkin, 12 Wn.2d   at   71.   The


court held that the statute allowed a trial court to adjudicate property disputes by show cause

order or " otherwise,"     including   through   constructive service upon a nonresident.       12 Wn.2d at


71.   Thus, the Supreme Court held that this statute provides broad powers for the trial court to


bring in nonparties and make them " parties" to a supplemental proceeding through show cause

orders or other procedures, even where they are not plaintiffs or defendants.

         Here, Odenwalder and the trust were necessary parties.8 But, under RCW 6. 32. 270, the
trial court' s show cause order made Odenwalder and the trust parties to this supplemental


proceeding. 9     Therefore, the trial court did not fail to join necessary parties; it sufficiently did so

by ordering Odenwalder and the trust to show cause why the transfers should not be avoided.




7
    REM. REV. STAT. § 638 - 1. The language         of   RCW 6. 32. 270 is identical to § 638 - 1.


8 Due to ambiguities in the record and in the briefing, we analyze this issue as if both
Odenwalder and the trust have potential property interests in the transfers.
9
    Odenwalder     concedes she was served with        the   show cause order.
No. 46235 -4 -II



                                         IV. ACTION PROPERLY COMMENCED


       Odenwalder argues that Shelcon had no proper cause of action, because it did not file a

separate action under            RCW 19. 40. 071.    We disagree.


       The UFTA, chapter 19. 40 RCW, provides two paths for a creditor to obtain relief from a

fraudulent transfer. RCW 19. 40. 071.               The statute provides that creditors without a judgment


against a debtor may obtain relief under 19. 40. 071( a), which provides several remedies. The

statute provides      that those     remedies will    be   available   in   an " action   for   relief ...   under this


chapter."   RCW 19. 40. 071( a); see also Schneider, 99 B.R. at 55 ( noting that the UFTA " does not

specifically   state      that   one must commence an action        to   set aside   the   fraudulent        conveyance).   But


creditors   may alternatively          seek relief under   RCW 19. 40. 071( b),      which permits creditors who



have " obtained a judgment on a claim against the debtor" to " levy execution on the asset

transferred    or   its   proceeds."    If the creditor seeks this form of relief, it need not file a separate

action under the UFTA, chapter 19. 40 RCW.


        Here, Shelcon had obtained judgment against Haymond. Shelcon then instituted


supplemental proceedings to levy execution on its judgment. The statute plainly contemplates

that a creditor will invoke the UFTA after obtaining a judgment on some other basis, and

provides a    remedy in that         event.   RCW 19. 40. 071( b).       Requiring a separate lawsuit in such

circumstances would do nothing more than unnecessarily tax judicial resources. We disagree

with Odenwalder, and hold that filing a motion to avoid Haymond' s transfers in supplemental

proceedings was an appropriate way for Shelcon to levy execution on its judgment.




                                                               10
No. 46235 -4 -II



                                     V. STATUTE OF LIMITATIONS VIOLATED


         Odenwalder argues that the statute of limitations has run on Shelcon' s claim to avoid the


transfer of Haymond' s residence and club membership. We agree that the statute of limitations

has run on the transfer of the residence and that an issue of material fact remains regarding

transfer of the club membership. Thus, we reverse the order avoiding the transfers and remand

to the trial court to resolve this issue.


         The UFTA, RCW 19. 40. 091, provides two statutes of limitations. It provides a four -year

statute of   limitations for   a plaintiff      to   bring   an   action   under   RCW 19. 40. 041(   a)(   1) ( pleading


actual   intent to hinder,   delay,      or   defraud).      Alternatively, it provides a one -year statute of

limitations after the claimant discovered or reasonably could have discovered the fraudulent

nature of    the transfer. RCW 19. 40. 091(            a);   Freitag v. McGhie, 133 Wn.2d 816, 820, 824, 947

P. 2d 1186 ( 1997).


          As a threshold matter, we hold that the relevant end date for statute of limitations


purposes is when Shelcon moved to avoid the transfers, not when Shelcon initially sued

Haymond in the underlying            case.      RCW 19. 40. 091 provides: " A cause of action with respect to a


fraudulent transfer or obligation under this chapter is extinguished unless action is brought .. .


 u] nder" the various sections providing relief in the UFTA within the allowed time. As stated

above, we give effect       to the   plain     meaning       of a statute when possible.      Campbell & Gwinn, 146


Wn.2d at 9 - 10. The terms " action" and " cause of action" are not explicitly defined in the UFTA.

Black' s Law Dictionary defines " action" as any civil or criminal judicial proceeding. BLACK' S

LAw DICTIONARY 32 ( 9th            ed.   2009).      It defines " cause of action" as a " group of operative facts

giving   rise   to   one or more   bases for suing." BLACK' S LAw DICTIONARY 251 ( 9th ed. 2009).




                                                                   11
No. 46235- 4- 11



Therefore, an " action" is the legal proceeding, whereas a " cause of action" is the group of facts

underpinning that legal proceeding.

          The meaning of RCW 19. 40. 091 is plain on the statute' s face, so we give effect to that

meaning. Campbell & Gwinn, 146 Wn.2d at 9 -10. The statute provides that a " cause of action .


     under this chapter is extinguished unless action is brought" under the chapter within the statute

of   limitations. RCW 19. 40. 091.    Here, the " cause of action" is the set of facts arguably

demonstrating a fraudulent transfer; the " action" that must be brought is the legal proceeding to

set aside the fraudulent transfers. This plain language demonstrates that the relevant " action"

here is the postjudgment motion to avoid the transfers, not the underlying suit in which Shelcon

prevailed.    The legal proceeding,   or " action,"   the statute refers to is an action under the UFTA.


The statute plainly requires a creditor to seek relief under the UFTA within the UFTA' s statute

of limitations. Therefore, because Shelcon sought the UFTA' s relief, we look to the date on

which Shelcon moved to avoid the transfers under the UFTA for statute of limitations purposes.

To be timely, Shelcon' s motion to avoid the transfers in February 2014 must have occurred

either within four years of the transfers, or within one year of Shelcon' s discovery of their

fraudulent nature.


          Here, the relevant dates are:


              April 6, 2006: Haymond executed a bill of sale transferring his house and his
              club membership to Odenwalder as trustee. CP at 76.
              November 14, 2008: Haymond executed an identical transfer and recorded the
              transfer. CP at 169.
              December 2011: Haymond requested that the club backdate the transfer date.
              CPat187.
              March 12, 2012: the club allowed Odenwalder to become a member. CP at 186.
              August 27, 2012: Shelcon deposed Odenwalder about the transfers. CP at 10.
              February 20, 2014: Shelcon moved to avoid these transfers. CP at 1.


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No. 46235 -4 -II




       If the statute of limitations began to run in 2006 or 2008 when Haymond executed the


bills of sale, the four year statute of limitations would have expired in 2010 or 2012. Under

either scenario, the four -year statute of limitations under RCW 19. 40. 091( a) would have expired

prior to Shelcon' s 2014 motion to avoid the transfers. The one -year statute of limitations does

not rescue the claim. Shelcon does not provide any facts about its discovery of this arguable

fraud. But the record is clear that when Shelcon deposed Odenwalder in August 2012, Shelcon

questioned Odenwalder about the nature of the trust' s assets, and she said she thought Haymond

made the transfers to protect his assets from legal and financial troubles for the benefit of his

daughter. At this point, Shelcon knew or reasonably should have known of the arguably

fraudulent nature of both transfers. Therefore, the one -year statute of limitations would have

expired, at the very latest, in August 2013, one year after Odenwalder' s deposition.

A.      Statute ofLimitations Ran on Transfer ofHouse

        At oral argument before us, Shelcon conceded that the statute of limitations had expired

on the transfer of the house before Shelcon sought to avoid these transfers. Wash. Court of

Appeals   oral argument,     Shelcon        v.   Haymond, No. 46235 -4 -II (Jan. 20, 2015), at 16 min, 2 sec.


through 16   min,   10   sec. ( on   file   with court).   We accept this concession, because uncontroverted


evidence before us establishes that Haymond transferred his residence in 2006, more than four

years before Shelcon moved to avoid the transfer in 2014.

B.      Questions ofFact Remain About Transfer of Club Membership

        The parties disagree about the date of the transfer of the club membership. Shelcon

argues that the club membership was transferred on March 12, 2012 when the club' s board of

directors approved Odenwalder as a new member, whereas Odenwalder argues that it was


                                                              13
No. 46235 -4 -II



transferred   in 2006   when   Haymond     created   the first " Bill of Sale."    CP at 76. The declaration


from the former club president supports the contention that the transfer occurred in 2012 when

the board approved Odenwalder as a new member: he declared that no one could become a club


member without first being approved by the board of directors. But the club bylaws do not

contain any such rule. Therefore, there remains a question of fact as to whether the club rules

permitted Haymond to transfer his club membership before the board approved the new member.

If the club required Board approval before allowing a member to transfer his membership, then

Haymond did not transfer his club membership until March 2012, and the statute of limitations

would not have run on Shelcon' s claim to avoid this transfer.


        It is a further question of fact whether it is possible to own a club membership without

owning a residence at the club. The bylaws require that all club members own a dwelling,

suggesting that Haymond lost his membership when he transferred his house. Therefore, there

was conflicting evidence before the trial court regarding whether Haymond retained a club

membership after transferring his house in 2006. If club rules prohibited membership without

         a   dwelling, then Haymond' s      membership      was   apparently      extinguished   in 2006. On
owning


remand, the trial court should determine whether Haymond retained his club membership after

transferring his residence.'°



1° The order avoided the transfers " to the extent necessary to satisfy the judgment of Shelcon
Construction    Group,   LLC    against   Scott M. Haymond." CP at 234 -35. The order does not give
Shelcon control over the assets. But if Shelcon seeks to control the assets, and if club rules
prohibit membership without a dwelling, then it would be impossible for Shelcon to possess such
a membership absent ownership of a residence. Thus, the trial court may need to determine
whether Shelcon is entitled to possess a membership absent owning a residence. There is
conflicting evidence before us about whether club rules require members to have dwellings. If
that is true, Shelcon may not be entitled to a membership, because the statute of limitations has
run on the dwelling. In other words, because Haymond' s prior residence is beyond the reach of

                                                          14
No. 46235 -4 -II



        Because of these conflicting factual issues, we cannot determine as a matter of law when

the transfer of the club membership occurred for the purposes of the statute of limitations. The

transfer may have occurred in 2006 or 2008 when Haymond executed the bills of sale, or in 2012

when the club admitted Odenwalder. The trial court must determine whether the statute of


limitations has   expired on   the transfer   of   the   club   membership. Shelcon' s motion to avoid the


transfer of the club membership would have been timely only if the trial court determines that the

transfer of the club membership occurred in March 2012 when the board of directors approved

Odenwalder as a member of the club because club rules required board approval of any new

member. This is an issue of fact that we cannot resolve, because resolution requires weighing

conflicting evidence.


         A court may abuse its discretion by failing to hold an evidentiary hearing when

affidavits present an issue of fact whose resolution requires a determination of witness


credibility."   Woodruff v.    Spence, 76 Wn.       App.   207, 210, 883 P. 2d 936 ( 1994). Here, the


declarations before the trial court presented questions of witness credibility without which the

trial court could not resolve the legal question whether the statute of limitations had run. For

example, the former club president declared that the club' s rules provided that a transferee of a


club membership must obtain approval from the club' s board of directors before being admitted

as a member, but this declaration is contrary to the club' s bylaws.




Shelcon due to the statute of limitations, the membership may not be available to Shelcon either,
because club rules appear to prohibit possessing a membership without also possessing a
dwelling.



                                                            15
No. 46235 -4 -II



        Because the application of the statute of limitations therefore is an issue that requires


determinations of witness credibility to resolve the conflicts between the written declarations, the

trial court must hold further proceedings to resolve this question. Moreover, RCW 6. 32.270,


governing supplementary proceedings involving the disputed property of a debtor, provides that

a third party appearing under a show cause order " may have such issue determined by a jury

upon   demand."    Thus, the statute appears to contemplate that this issue involves credibility

determinations appropriate for a hearing, at minimum. Because this court is an error- correcting

court, and there is no ruling on the tolling of the statute of limitations for us to review, we

remand to the trial court for further proceedings to determine whether the statute of limitations

had run on the transfer of the club membership.

                               VI. NO FAILURE TO ATTACH PROPERTY


        Odenwalder also argues that the subject property was not properly attached under RCW

6. 25. 020. We disagree.


        RCW 6. 25. 020 provides that the plaintiff "may" attach the property of one or more

defendants as security for the satisfaction of a judgment. Property must be attached as provided

in chapter 6. 25 RCW. RCW 6. 25. 020.


        But here, Shelcon never sought to attach property. The sole relief Shelcon sought, and

the sole relief the trial court granted, was of avoiding the transfers under RCW 19. 40. 071, which

does not require attachment under RCW 6. 25. 020. Thus, Odenwalder' s argument fails."




 1i Appellants Haymond and Odenwalder point cursorily to the trial court' s failure to dispose of
the trust assets in accordance with the Trust and Estate Dispute Resolution Act (TEDRA),
chapter 11. 96A RCW.




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No. 46235 -4 -II



        Although we reverse the trial court' s order avoiding the transfer, we consider the

following arguments to " express guidelines to aid in whatever proceedings might follow."

Henry v. Town of Oakville, 30 Wn. App. 240, 246, 633 P.2d 892 ( 1981).

                                     VII. ELEMENTS OF FRAUD MET


        Haymond argues that the trial court erred by avoiding the transfers when it lacked

evidence of a violation of the UFTA. We disagree.


        The UFTA, RCW 19. 40. 041, provides in relevant part that a transfer by a debtor is

fraudulent if the debtor made the transfer with " actual intent to hinder, delay, or defraud any

creditor of   the   debtor." RCW 19. 40. 041(   a).   The statute provides 11 nonexclusive factors that a


trial court may consider to determine whether the transfer is fraudulent. 12 RCW 19.40. 041( b).



RAP 10. 3( a) requires an appellant' s brief to include an argument citing legal authority and the
record. Where an appellant fails to cite authority, or where it gives passing treatment to an issue,
we do not consider the argument. See Brownfield v. City of Yakima, 178 Wn. App. 850, 876,
316 P. 3d 520 ( 2014). Here, neither appellant' s brief discusses which sections of TEDRA were
violated. Nor does either brief identify or argue how the trial court' s order affected the trust as
an entity, given that the trial court avoided transfers to the trust. Therefore, because these
arguments lack citations to authority and are given merely passing treatment, we do not consider
them.
12 The factors are 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;



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No. 46235 -4 -II



A trial court may grant a creditor various kinds of relief if the debtor has made a fraudulent

transfer,   including    but   not   limited to "[ a] voidance of the transfer or obligation to the extent


necessary to satisfy the        creditor' s claim."            RCW 19. 40. 071(   a)(   1).   The party alleging actual

intent to hinder, delay, or defraud must prove such intent by clear and satisfactory evidence.

Douglas v. Hill, 148 Wn. App. 760, 767, 199 P. 3d 493 ( 2009).

          Haymond argues that Shelcon did not provide clear and satisfactory evidence that

Haymond had actual intent to defraud Shelcon. Haymond argues that his declaration negated

some of     the 11   factors   of   fraud   set   forth in RCW 19. 40. 041.         Haymond emphasized that his


financial   situation was "` solvent and            in   great shape, "'   and he argues that most of the 11 fraud


factors   are " variations of       insolvency."         Br.   of   Appellant Haymond         at   3.   But contrary to

Haymond' s argument, the trial court need not find evidence of all 11 factors, nor is the absence


of any single factor dispositive. In re Bankruptcy ofHuber, 493 B. R. 798, 815 ( Bankr. W.D.

Wash. 2013).         In fact, strong evidence of a single fraud factor may sustain a trial court' s finding

that a conveyance was fraudulent. See Casterline v. Roberts, 168 Wn. App. 376, 385, 284 P. 3d

743 ( 2012) ( holding      that evidence that a debtor conveyed property to herself for no consideration

sufficed to support finding of fraudulent conveyance).

          The 11 factors in RCW 19. 40. 041( b) are non exclusive; the trial court " may" consider

them, " among other        factors," to determine whether there is clear and satisfactory evidence that




            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.


   RCW 19. 40. 041( b).




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No. 46235 -4 -I1



the debtor had actual intent to delay, hinder, or defraud. Huber, 493 B. R. at 815; Sedwick v.

Gwinn, 73 Wn. App. 879, 886 -87, 873 P. 2d 528 ( 1994).

       Here, in response to the motion to avoid the transfers, Haymond did not deny his intent to

defraud: he merely declared that his financial health was good until 2011, and that he made the

transfers to Odenwalder as trustee to provide for his daughter. But neither of these assertions is


inconsistent with Haymond' s actual intent to hinder, delay, or defraud creditors.

       Moreover, several fraud factors in RCW 19. 40. 041( b) were present. The transfers were


to an insider, Haymond' s sister. Haymond retained possession and control of his residence and


of his club membership until March 2012. The transfer was a mere " change of identity,"

performed under an administrative code designed to apply where " there is no change in

beneficial ownership."    See WAC 458 -61A -211.        The transfers were apparently for no monetary

consideration. Haymond executed the transfers to protect his assets from legal or financial


troubles for the benefit of his daughter. Haymond paid Odenwalder directly, and she in turn paid

bills on the property, in an apparent plan to conceal that Haymond was the true payor.

        The strongest evidence against the fraudulent nature of the transfers, as Haymond argues,


is their timing. Haymond' s financial solvency at the time of the transfers is not dispositive, but it

is strong evidence against Shelcon' s claim of fraud. The transfers were initially performed in

2006 but   unrecorded until   2008,   and not   disclosed to the   club until   December 2011.   Shelcon


sued Haymond on December 31, 2009, and the trial court entered judgment against him in

October 2011.      In 2006 and 2008, Shelcon had not yet sued Haymond. Haymond' s request to


backdate the transfers with the club does not change the fact that Haymond transferred and

recorded the transfer of both assets to Odenwalder or the trust by 2008, but it does suggest that



                                                       19
No. 46235- 4- 11



Haymond intended to defraud Shelcon in 2011 by backdating the transfers. At earliest possible

date of the transfers, April 2006, Haymond was preparing to contract with Shelcon. Moreover,

RCW 19. 40. 071 contemplates actual intent to defraud present andfuture creditors. That is,

under the statute' s plain terms, fraud can occur before a debt is incurred, and before the debtor' s

financial situation deteriorates.


        Thus, the trial court had clear and satisfactory evidence that Haymond had actual intent to

hinder, delay, or defraud Shelcon. Haymond never denied his intent to defraud Shelcon below,

and the trial court had clear and satisfactory evidence demonstrating several of the statutory

fraud factors.


                                    VIII. NO TESTIMONY REQUIRED


        Haymond argues that the trial court erred by finding fraud without taking Shelcon' s

testimony. We disagree.

        Haymond cites Sedwick, 73 Wn. App. at 887, to support his argument that the trial court

was required to take testimony before finding fraud. In Sedwick, Division One of this court held

that ``in cases where the debtor denies that his or her intent was to defraud, the issue cannot be


conclusively determined by the trier of fact until it has heard the testimony and assessed the

witnesses'   credibility."   73 Wn. App. at 887. The debtors in Sedwick denied that their intent was

to defraud their creditors, but the trial court granted summary judgment to the creditor based on

circumstantial evidence of     the 11   fraud factors.   73 Wn. App. at 887. The Sedwick court' s

holding is expressly limited to " cases where the debtor denies that his or her intent was to

defraud."    73 Wn. App. at 887.




                                                         20
No. 46235 -4 -II



        Here, unlike in Sedwick, Haymond did not deny his intent to hinder, defraud, or delay

Shelcon in the trial court.13 Haymond' s declaration in opposition to Shelcon' s motion to avoid

the transfers explains that Haymond' s financial health was good until 2011, and that he made the


transfers to Odenwalder as trustee to provide for his daughter. Neither of these assertions is

inconsistent with Haymond' s actual intent to hinder, delay, or defraud creditors.

        As discussed above, the trial court had sufficient evidence to establish clear and


satisfactory proof that the transfers were fraudulent. Douglas, 148 Wn. App. at 767. Haymond

did not deny intent to hinder, delay, or defraud, and Odenwalder' s deposition provided further

evidence of Raymond' s intent to keep his assets from Shelcon. The trial court need not have

taken Shelcon' s testimony before avoiding the transfers.

                                              ATTORNEY FEES


        Shelcon    requests   attorney fees   pursuant   to RAP 18. 1.   It also requests sanctions against


Odenwalder     pursuant   to RAP 18. 9( a).   Because we vacate the order below, Shelcon is not the


prevailing party and is not entitled to attorney fees at this time. RAP 14. 2, 18. 1.

        Odenwalder requests attorney fees, but fails to devote a section to her brief to this request

and fails to cite authority entitling her to attorney fees. Finding no such authority, we deny her

request. See RAP 18. 1( a).


        We reverse the order and remand to the trial court for an evidentiary hearing to determine

several disputed factual issues and to resolve whether the statute of limitations has run on




13
     Haymond   argues   in his brief that he " denies any intent to defraud," but we must look to the
facts before the trial court at the motion to avoid the transfers. Br. of Appellant (Haymond) at 2.
It is not relevant whether Haymond now denies his intent to defraud.


                                                         21
No. 46235 -4 -II



Shelcon' s fraudulent transfer claim regarding the club membership. We reverse the avoidance of

the transfer of the house, because the statute of limitations has run.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




 Melnick, J.




 Sutton, J.




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