O.C.G.A. § 18-2-79 (2019)

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former § 18-2-22 are included in the annotations for this Code section. Limitations on actions. - U.S. Bankruptcy Court determined appropriate limitations periods for claims for alleged fraudulent conveyances of real property (seven years) and personal property (four years) by analogy to adverse possession and conversion, respectively, in the absence of an express limitations period in former O.C.G.A. § 18-2-22. Broadfoot v. Hunerwadel, 282 B.R. 54, 2002 Bankr. LEXIS 299 (Bankr. N.D. Ga. 2002) (decided under former O.C.G.A. § 18-2-22). Trial court improperly granted summary judgment to judgment debtors on a judgment creditor’s claim under O.C.G.A. § 14-8-28 upon finding that the limitations period under O.C.G.A. § 18-2-79 barred the claim as there was no legal basis to conclude that the limitation period in § 18-2-79 was applicable to the creditor’s claim. Morris v. Nexus Real Estate Mortg. & Inv. Co., 296 Ga. App. 477, 675 S.E.2d 511, 2009 Ga. App. LEXIS 234 (2009). Chapter 7 trustee was not barred by the statute of limitations under O.C.G.A. § 18-2-79 or under 11 U.S.C. § 546 from pursuing a cause of action under 11 U.S.C.

§ 544 because the debtor filed the debtor’s petition before the state statute of limitations expired, but was barred from pursuing avoidance under 11 U.S.C. § 548 of any transfer occurring prior to two years before the petition was filed. Watts v. Peachtree Tech. Partners, LLC (In re Palisades at West Paces Imaging Ctr., LLC), No. 09-87600-WLH, No. 11-5183, 2011 Bankr. LEXIS 3576 (Bankr. N.D. Ga. Sept. 13, 2011). As an administrator’s fraudulent conveyance claims were time barred under O.C.G.A. §§ 18-2-74(a)(1) and 18-2-79(1), a limited liability company’s (LLC) failure to respond to the administrator’s requests for admissions was of no consequence and the trial court’s denial of summary judgment to the LLC was improper. Huggins v. Powell, 315 Ga. App. 599, 726 S.E.2d 730, 2012 Ga. App. LEXIS 348 (2012). Administrator’s fraudulent conveyance claims against group one were time barred under O.C.G.A. §§ 18-2-74(a)(1) and 18-2-79(1), even though the claim was not time barred under the limitations period in effect when the claim accrued, as application of § 18-2-79, a procedural law in effect at the time the suit was filed, did not violate the constitutional prohibition against retroactive laws under Ga. Const. 1983, Art. I, Sec. I, Para. X; the adminis-

trator also failed to avail the administrator of the one-year statute of limitation effective upon discovery of the alleged fraud. Huggins v. Powell, 315 Ga. App. 599, 726 S.E.2d 730, 2012 Ga. App. LEXIS 348 (2012). Even though the four-year statute of limitations under the Georgia Uniform Fraudulent Transfer Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., had not expired, a Chapter 7 trustee’s avoidance action, which was brought pursuant to a Bankruptcy Code provision allowing the trustee to step into the shoes of an unsecured creditor, was barred by the two-year limitations period in the Bankruptcy Code. Nor was the statute tolled by a Bankruptcy Code provision dealing with extensions of time as the trustee’s fraudulent transfer action was brought standing in the shoes of a creditor, not the debtor. Boudreaux v. Hall Oil Co. (In re Pope Logging, Inc.), No. 11-30153, No. 15-03004, 2015 Bankr. LEXIS 3136 (Bankr. S.D. Ga. Sept. 17, 2015). In a transfer avoidance action under 11 U.S.C. § 544(b)(1), the complaint alleged sufficient facts to raise questions of fact regarding whether the statute of limitations barred the trustee’s claim as it was plausible that the debtors concealed the transfers and the creditor did not learn of the transfers until years later. Lubin v. Markowitz (In re Markowitz), No. 1468061-BEM, No. 16-5221-BEM, 2017 Bankr. LEXIS 767 (Bankr. N.D. Ga. Mar. 22, 2017). Trustee’s avoidance claim for transfer of certain real property pursuant to O.C.G.A. § 18-2-74(a)(1) was time barred because from the day the deed was recorded, any subsequent purchaser or judgment creditor was on notice of the transfer and any applicable statute of limitations under O.C.G.A. § 18-2-79 started running as of that date. Gordon v. Webster (In re Webster), 629 B.R. 654, 2021 Bankr. LEXIS 838 (Bankr. N.D. Ga. 2021). Action to set aside fraudulent transfer timely filed. - Fraudulent transfer occurred on the date the deed was recorded, even though the deed was signed nearly 18 months earlier, and the creditor timely filed the creditor’s com-

plaint and action to set aside the fraudulent transfer approximately six months before the four-year statute of limitation would have run. Kent v. A.O. White, Jr., Consulting Eng’r, Inc., 279 Ga. App. 563, 631 S.E.2d 782, 2006 Ga. App. LEXIS 639 (2006), cert. denied, No. S06C1710, 2006 Ga. LEXIS 790 (Ga. Oct. 2, 2006). Fraudulent transfer claim was time-barred. - Former director’s putative transferee met the transferee’s burden for summary judgment purposes of asserting that a fraudulent transfer claim was time-barred, but the creditor failed to point to specific evidence that gave rise to a triable issue with respect to whether the limitation period did not bar the claim. Am. Nat’l Holding Corp. v. EMM Credit, LLC, 323 Ga. App. 655, 748 S.E.2d 683 (2013). Fraudulent transfer claims alleging actual fraud survived summary judgment because fact issues existed as to when the fraudulent nature of the transfers was discovered, but some constructive fraud claims were untimely because no discovery rule applied. Am. Pegasus SPC v. Clear Skies Holding Co., LLC, No. 1:13CV-03035-ELR, 2015 U.S. Dist. LEXIS 189547 (N.D. Ga. Sept. 22, 2015). Claim not subject to dismissal based on unrecorded deeds. - Judgment creditor’s fraudulent transfer action was not shown to be barred by limitations because, even assuming that the reference to the year 2003 in unwitnessed and unrecorded deeds from the judgment debtor proved that the deeds were executed in 2003, those deeds could not prove the passing of title, and questions concerning the judgment creditor’s diligence in discovering the alleged fraud were generally questions for a trier of fact. RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713, 798 S.E.2d 315, 2017 Ga. App. LEXIS 130 (2017). Improper dismissal for failure to state a claim. - Trial court erred in granting the defendants’ motion to dismiss for failure to state a claim because it was too soon in the case to conclude, as a matter of law, that the plaintiffs could not present evidence satisfying the statutory elements of O.C.G.A. § 18-2-70 et. seq., seeking to void the transfer of assets. Lyle

v. Fulcrum Loan Holdings, 354 Ga. App. 742, 841 S.E.2d 182, 2020 Ga. App. LEXIS 190 (2020), cert. denied, No. S20C1327,

2020 Ga. LEXIS 789 (Ga. Oct. 19, 2020), cert. denied, No. S20C1103, 2020 Ga. LEXIS 787 (Ga. Oct. 19, 2020).

RESEARCH REFERENCES Am. Jur. 2d. 37 Am. Jur. 2d, Fraudulent Conveyances and Transfers, § 152 et seq.

C.J.S. 37 C.J.S., Fraudulent Conveyances, § 123 et seq.