Florida/Georgia Personal Injury & Workers Compensation

...tor made the transfer while insolvent and without receiving reasonably equivalent value in exchange for the transfer or obligation. *153 Under the UFTA, a debtor is "insolvent" if the sum of his debts is greater than his assets at a fair evaluation, section 726.103(1), Florida Statutes (1993), or a debtor is presumed insolvent if generally not paying his debts as they become due, id. at section 726.103(2)....

...However, as we stated in the beginning of our analysis, there was conflicting evidence in the record on the issue of insolvency. The Uniform Fraudulent Transfer Action defines insolvency as follows: "A *1237 debtor is insolvent if the sum of the debtor's debts is greater than all of the debtor's assets at a fair valuation." § 726.103(1), Fla....

...e "balance sheet" test). Because creditors can often find little direct evidence of a debtor's assets and liabilities, the Act also contains a presumption of insolvency where the debtor generally fails to pay his or her debts as they become due. See § 726.103(2); First Fed....

...illion dollars, as well as debts to other creditors. The evidence is in conflict as to whether the company was substantially in debt and failing to pay its debts as they came due. Thus, the appellees failed to negate the presumption of insolvency of section 726.103(2). The deposition testimony also presents an issue of fact as to whether their assets exceeded their liabilities. See § 726.103(1)....

...[4] Although Appellee's brief states that Ms. Paul had divorced Mr. Paul before July 25, 1994, the date on which she filed a petition for relief under Chapter 7 of the Bankruptcy Code, the trial transcript quotes Ms. Paul as testifying that she divorced around March 1996. (Tr. at 12.) [5] Section 726.103 defines insider as a "[a] relative of the debtor." [6] In exchange for paying some of her husband's bills, the court stated, Mr....

...Orono, Inc., bank account on July 1, 1993. ( See Pl.'s Am.Ex. Register Ex. 2 at 1.) In addition to the check to Mr. Plave, written on July 2, 1993, Debtor also wrote two checks, for $19,310 and $20,000, to herself from the same account on that date. ( See Tr. at 35-37.) [8] Section 726.103 defines insolvency for individuals in two ways: (1) 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[; or] (2) A debtor who is generally not paying his debts as they become due is presumed to be insolvent. Fl.Stat. § 726.103(1)-(2) (West 1988 & Supp....

...been transferred in a manner making the transfer voidable under ss. 726.101-726.112. (5) Debts under this section do not include an obligation to the extent it is secured by a valid lien on property of the debtor not included as an asset. Fla. Stat. § 726.103 ....

...The Owner's rights are, however, subject to the rights of an irrevocable payee and to the terms of any existing collateral assignment. 19. The total assets of the Debtors as reflected on their bankruptcy schedules, compared to their representations at trial, are greatly in conflict. Based upon Florida Statute § 726.103, the Debtors were insolvent from August 1990, through the date of this bankruptcy filing....

...made the transfer while insolvent and without receiving reasonably equivalent value in exchange for the transfer or obligation. *153 Under the UFTA, a debtor is “insolvent” if the sum of his debts is greater than his assets at a fair evaluation, section 726.103(1), Florida Statutes (1993), or a debtor is presumed insolvent if generally not paying his debts as they become due, id. at section 726.103(2)....

...This Court is satisfied that these issues contain material issues of fact, including the resolution by this Court of whether Winick's fees were reasonable, and therefore, it would be inappropriate to resolve Count III by summary judgment. Count IV involves the same factual allegations, but is based upon § 726.103 of the Florida Statutes....

...However, the Court concludes, as a matter of law, that because Regions has not met its burden of proof on the theories of either substantive consolidation or alter ego, Regions is unable to assert the common enterprise defense to oppose entry of judgment on Count IV or as an affirmative defense. *409 C. Insolvency Under § 726.103(2), a debtor is presumed to be insolvent when it is not paying its debts as they become due. 73 If the presumption does not arise, under § 726.103(1) a debtor is insolvent when the sum of its debts is greater than its assets at fair valuation." 74 (1) Plaintiff has not established the presumption of insolvency . To establish the presumption of insolvency under § 726.103(2), Plaintiff offers the IRS claims in the Rotrpick, YNJK VIII, and YNJK XI cases and the Safe Harbor and Choice Plus claims in the Training U case....

...Mongelluzzi's deposition testimony reflects that she did not have a recollection of Debtors' financial condition. 78 Accordingly, the Court finds that Plaintiff has not established that Debtors were unable to pay their debts as they became due. (2) Plaintiff has not established balance sheet insolvency . Under § 726.103(1), referred to as the "balance sheet test," the Court may determine that a debtor is insolvent if the value of its liabilities exceed the value of its assets....

...Hippo Golf Co., Inc. , 646 F.Supp.2d 1347 , 1353 (S.D. Fla. 2009) ("Under Florida law, mere failure to observe corporate formalities alone is not enough.") (quoting In re Hillsborough Holdings Corp. , 166 B.R. 461 , 469 (Bankr. M.D. Fla.1994) ). Fla. Stat 726.103(2). Fla. Stat. 726.103(1)....

...Ethan Allen, by virtue of the judgment in its favor, met the statutory definition of creditor and could thus invoke Chapter 726. The Levins also contend that at the time of the transfer Georgetown, having the larger judgment in its favor, was as a matter of law not insolvent as defined in section 726.103. This transfer could not, accordingly, have been fraudulent. Section 726.103, Fla....

...ion. (2) A debtor who is generally not paying his debts as they become due is presumed to be insolvent. What the Levins and the dissent overlook in arguing that Georgetown could not have been insolvent is that Georgetown was presumed insolvent under section 726.103(2), quoted above....

...Because of this general presumption, Georgetown was undeniably entitled to treat the judgment as an asset of face value until the reversal of the judgment. At face value, it trumped any failure to pay general obligations as they became due. The majority argue that I do not understand the insolvency statute, section 726.103, and that my position on the burden of proof ignores the presumption in section 726.103(2). With respect, it is they who misapprehend the statute. Section 726.103(1) lays down the insolvency rule— that a debtor is insolvent when the sum total of all his liabilities exceeds the fair value of all his assets. That is the only rule defining insolvency. [3] At the same time, however, section 726.103(2) states a presumption having a logical relationship to insolvency. [4] But unlike section 726.103(1) which has been framed as a rule, the Legislature has given section 726.103(2) only a subservient role in the inquiry into financial condition. Section 726.103(2) has been cast solely as a rebuttable presumption rather than as a rule, and like all rebuttable presumptions it can be surmounted by contrary evidence. From the context it is apparent that this presumption's purpose is to facilitate application of the rule. Assets may be unknown by creditors; they may be hidden; their fair value may be subject to dispute. Because section 726.103(2) is not framed as an alternative to the insolvency rule in section 726.103(1), its only role is to ease the court into the ultimate determination on the question of solvency. Thus the Legislature drafted section 726.103(2) as a burden-proving starting point in the insolvency equation....

...greater than debts does not alter the insolvency rule, however. The rule continues to be that insolvency results only when there is a deficit of assets to debts. This analysis is mandated by the Florida Evidence Code. In the words of the that Code, section 726.103(2) has created: "a presumption affecting the burden of producing evidence and requiring the trier of fact to assume the existence of the presumed fact, unless credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact is introduced, in which event, the existence or nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption...." § 90.302(1), Fla. Stat. (2000). [5] The Code thus makes clear that the section 726.103(2) presumption does not displace the insolvency rule, as the majority seem to suggest. Because section 726.103(2) functions as a section 90.302(1) presumption affecting the burden of producing evidence, it disappears upon the presentation of contrary evidence and the question of insolvency must be decided without regard to the presumption....

...debtor was (1) "insolvent at the time the transfer was made” and (2) "received less than reasonably equivalent value in exchange for the transfer.” Id. . Doc. No. 9 at 10 (citing Doc. No. 1 at ¶ 61). . Id. . . 11 U.S.C. § -101(32); Fla. Stat. § 726.103 (1); Lawson v....

...t at the time of the transfer of his Executive Aviation ownership interest or he became insolvent as a result of the transfer. The financial affidavits John filed in the divorce case established that *1029 his debts were greater than his assets. See § 726.103(1), Fla. Stat. (2006). Also, because John was “generally not paying his debts as they became due,” he was presumed to be insolvent. § 726.103(2), Fla....

...lvent or Became Insolvent Shortly After the Transfer 10  “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.” § 726.103(1), Fla....

...(2017). The term “asset” does not include property that “is generally exempt under nonbankruptcy law.” § 726.102(2)(b), Fla. Stat. (2017). Further, “[a] debtor who is generally not paying his or her debts as they become due is presumed to be insolvent.” § 726.103(2), Fla....

...obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation. § 726.106(1), Fla. Stat. (2016). “A debtor who is generally not paying his or her debts as they become due is presumed to be insolvent.” § 726.103(2), Fla....

...As it will impact the case on remand, in the event the trial court subsequently determines that Appellee is enti- *814 tied to pierce the corporate veil to reach Appellants, we also consider whether the trial court erred in entering summary judgment under sections 726.106 and 726.103, Florida Statutes. Here, the court found that non-payment of the judgment creditor’s debt, alone, triggered the insolvency presumption under 726.103(2) and that the presumption was never rebutted by proof of receipt of reasonably equivalent value for the transfer to BMI Tile. In doing so, it appears that the trial court confused the two factors required under section 726.106(1) to establish a fraudulent transfer with the types of evidence that can be used to rebut the presumption of insolvency under section 726.103(2)....

...Section 726.106(1) provides that a transfer is fraudulent as to a creditor whose claim arose before the transfer was made “if the debtor made the transfer ... without receiving reasonably equivalent value in exchange for the transfer ... and the debtor was insolvent at the time.... ” Section 726.103 provides two relevant definitions of insolvency. Section 726.103(1) provides a definition the trial court labels the “balance sheet test.” Under the test, “[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.” Section 726.103(2) provides that “[a] debtor who is generally not paying his or her debts as they become due is presumed to be insolvent.” Here, issues of fact exist on the issue of Building’s insolvency....

...verted facts, then summary judgment is improper as a matter of law. Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). There is no authority to suggest that balance sheet solvency cannot be used to rebut the presumption of insolvency under section 726.103(2), thereby precluding summary judgment. Section 726.103(2) creates a rebuttable presumption of insolvency....

...Although Appellee's brief states that Ms. Paul had divorced Mr. Paul before July 25, 1994, the date on which she filed a petition for relief under Chapter 7 of the Bankruptcy Code, the trial transcript quotes Ms. Paul as testifying that she divorced around March 1996. (Tr. at 12.) . Section 726.103 defines insider as a "[a] relative of the debtor.” ....

...Orono, Inc., bank account on July 1, 1993. (See PL’s Am.Ex. Register Ex. 2 at 1.) In addition to the check to Mr. Plave, written on July 2, 1993, Debtor also wrote two checks, for $19,310 and $20,000, to herself from the same account on that date. (See Tr. at 35-37.) . Section 726.103 defines insolvency for individuals in two ways: (1) 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!; or] (2) A debtor who is generally not paying his debts as they become due is presumed to be insolvent. Fl.Stat. § 726.103(1) — (2) (West 1988 & Supp....

section 726.105(1)(b), Florida Statutes. . Section 726.103, Florida Statutes (1993) defines insolvency