                                                                              FILED
                           NOT FOR PUBLICATION                                APR 17 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


PLAZA BANK,                                      No. 13-15100

              Plaintiff - Appellee,              D.C. No. 2:11-cv-00130-MMD-
                                                 RJJ
  v.

ALAN GREEN; ALAN GREEN FAMILY                    MEMORANDUM*
TRUST,

              Defendants - Appellants.


                   Appeal from the United States District Court
                            for the District of Nevada
                     Miranda Du, District Judge, Presiding

                            Submitted April 15, 2015**
                             San Francisco California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and GLEASON,***
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
      Defendants-Appellants Alan Green and the Alan Green Family Trust appeal

the judgment in favor of plaintiff-appellee Plaza Bank. The district court granted

summary judgment for the bank on its claim that the appellants fraudulently

transferred property to avoid the bank’s claim. The district court dismissed the

appellant’s counterclaims without leave to amend. We affirm.

      The district court applied Nevada’s Uniform Fraudulent Transfers Act

(“UFTA”), codified in Chapter 112 of the Nevada Revised Statutes, to the

appellants’ property transfers and held they were fraudulent. The appellants

contend that the district court erred, on the theory that applying the UFTA to the

Trust’s transfers conflicts with other Nevada statutory law giving fiduciaries

unfettered discretion to transfer property any time and for any purpose. See Nev.

Rev. Stat. § 163.270.

      The appellants cite no authority for the contention that the UFTA should not

apply to trusts in the same way it applies to other persons. To the contrary, the

Nevada Revised Statutes explicitly define “person” to include trusts. Nev. Rev.

Stat. § 0.039 (defining “person” as “a natural person, any form of business or

social organization and any other nongovernmental legal entity including, but not

limited to, a corporation, association, trust, or unincorporated organization”)




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(emphasis added); see also Nev. Rev. Stat. § 112.150 (UFTA definitions)

(“‘Debtor’ means a person who is liable on a claim.”) (emphasis added).

      For purposes of the UFTA, it is also irrelevant whether the transferred

properties secured the creditor’s claim. The statute applies when there is a claim,

regardless of whether or not it is secured. See Nev. Rev. Stat. § 112.150(3), (4)

(defining “creditor” as any person who has a claim, and “claim” as any “right to

payment, whether or not the right is reduced to judgment, liquidated, unliquidated .

. . secured, or unsecured”).

      The district court also properly concluded that the Trust’s transfer of cash

proceeds from a property sale to Green personally was fraudulent under Section

112.190 of the UFTA. See Nev. Rev. Stat. § 112.190. The district court cited six

indicia of fraud surrounding the transfer, which the appellants fail to rebut. See

Sportsco Enters. v. Morris, 917 P.2d 934, 938 (Nev. 1996) (shifting the burden of

rebutting indicia of fraud to the debtor once a creditor establishes inadequacy of

consideration and the debtor’s insolvency). The appellants have shown no

antecedent debt the transfer was made to satisfy, nor any contemporaneous transfer

of property or value. See Nev. Rev. Stat. § 112.170.

      Nor did the district court err by holding Green personally liable as the

transferee of the fraudulent sale proceeds under Nevada Revised Statute Section


                                          3
112.220(2)(a). There is a good faith defense to liability for such transfers, see

Herup v. First Boston Fin., LLC, 162 P.3d 870, 876 (Nev. 2007), but it does not

help Green. As trustee of the Trust, Green conceived of and executed the transfer,

and thus cannot show that he objectively had no reason to know of the transfer’s

fraudulent purpose. See id. (establishing that the good faith defense requires

transferees of fraudulent transfers to “show objectively that he or she did not know

or had no reason to know of the transferor’s fraudulent purpose”).

      Finally, the district court did not err by dismissing the appellants’

counterclaims for breach of contract and breach of the covenant of good faith and

fair dealing without leave to amend. There was no legal basis for the

counterclaims and thus any factual amendment would have been futile. See

Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th

Cir. 2004).

      AFFIRMED.




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