Fraudulent Transfer of Assets Case Law In Texas
The Uniform Fraudulent Transfer Act (UFTA) provides remedies to creditors of debtors who fraudulently transfer assets under certain circumstances as set forth in the statute. TEX. BUS. & COM. CODE ANN. 24.005, 24.006, 24.008 (Vernon 1987 & Supp. 2000).
A transfer of assets is fraudulent as to a creditor whose claim arose before or within a reasonable time after the transfer was made if the debtor made the transfer:
(1) with actual intent to hinder, delay, or defraud any creditor of the debtor;
(2) the debtor did not receive a reasonably equivalent value in exchange for the transfer and the debtor (a) was or was about to be engaged in transactions for which the remaining assets of the debtor were unreasonably small in relation to the transaction, or (b) intended to incur, or believed or reasonably should have believed the debtor would incur debts beyond the debtor's ability to pay as they became due. UFTA 24.005(a).
A transfer of assets is also fraudulent as to a creditor whose claim arose before the transfer was made if the debtor made the transfer without receiving a reasonably equivalent value in exchange for the transfer and the debtor was insolvent at the time of or became insolvent as a result of the transfer of the assets. UFTA 24.006(a).
Unless displaced by its provisions, the UFTA supplements other principles of law and equity. UFTA 24.011. the term "asset" under the UFTA does not include property to the extent it is encumbered by a "valid lien" as defined in the statute. UFTA 24.002.(2)(A).
to recover for fraud of another, a party must prove that;
(1) a material misrepresentation was made;
(2) the representation was false;
(3) the speaker knew that it was a false representation;
(4) the speaker intended that it be acted upon by the other party;
(5) the other party did indeed rely on the representation, and (6) the other party suffered damages as a result. T. O. Stanley Boot Co., v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992); Campbell v. C.D. Payne and Geldermann Sec., Inc., 894 S.W.2d 411, 425 (Tex.App.--Amarillo 1995, writ denied).
In order for a promise to perform in the future to be fraudulent it must be proved that the allegedly defrauding party had no intention of performing the act or promise at the time the promise was made. T.O. Stanley Boot Co., 847 S.W.2d at 222.
One purpose of the corporate structure is to shield its shareholders from liabilities of the corporation. Menetti v. Chavers, 974 S.W.2d 168, 171 (Tex. App.--San Antonio 1998, no pet.).
Texas case law and various statutory provisions allow for piercing the veil of a corporation or otherwise provide avenues for shareholders or others to be held liable for actions of the corporation. E.g., TEX. BUS. CORP. ACT ANN. art. 2.21 (Vernon Supp. 2000) (hereinafter TBCA); TEX. TAX CODE ANN. 171.255 (Vernon 1992); Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex. 1986).
No liability for corporate contractual obligations may be imposed on a shareholder or affiliate of the corporation or shareholder under an alter ego or similar theory unless it is shown that the person on whom liability is sought to be imposed:
(1) caused the corporation to be used for the purpose of perpetuating;
(2) perpetrated an actual fraud on the obligee for the direct personal benefit of the person on whom liability is sought to be imposed. TBCA art. 2.21(A),(B); Menetti, 974 S.W.2d at 173-74.