Lincoln Loan Co. v. PDXF3, LLC ( 2024 )

258 August 7, 2024 No. 549
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
LINCOLN LOAN CO.,
an Oregon corporation,
Plaintiff-Appellant,
v.
PDXF3, LLC,
Defendant,
and
Richard WEILL,
Defendant-Respondent.
Multnomah County Circuit Court
22CV08977; A179447
Eric J. Neiman, Judge.
Argued and submitted June 14, 2024.
Melinda B. Wilde argued the cause for appellant. Also on
the briefs was Melinda B. Wilde LLC.
Erica Tatoian argued the cause for respondent. Also on
the brief were Graham M. Sweitzer and Harrang Long P.C.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
KAMINS, J.
Affirmed.
Nonprecedential Memo Op: 334 Or App 258 (2024) 259
KAMINS, J.
In this civil action, plaintiff Lincoln Loan seeks
reversal of a trial court ruling granting summary judgment
in favor of defendant Richard Weill. Lincoln contends that
genuine issues of material fact exist regarding whether Weill
qualified as a transferee or an insider under Oregon’s Uniform
Voidable Transactions Act (UVTA).1 Because undisputed evi-
dence in the record establishes that Weill does not qualify as
either a transferee or an insider under the UVTA, we affirm.
Following the execution of two promissory notes
secured by real property, Lincoln became a secured creditor
of the Geppert Estate. Later, Lincoln obtained a judgment
of foreclosure on one of those promissory notes, causing the
Geppert Estate’s property to be sold at a foreclosure sale.
After that sale, the Geppert Estate conveyed to defendant
PDXF3, by deed, any and all right, title, and interest of the
Geppert Estate that still existed in the foreclosed property.
Thereafter, both Lincoln and PDXF3 made claims to sur-
plus funds that arose from the sale.
Following extensive proceedings at the trial level,
this court concluded that “the trial court was required to
order that the surplus funds from the foreclosure sale be
distributed to PDXF3.” Lincoln Loan Co. v. Estate of George
Geppert, 307 Or App 213, 214-15, 477 P3d 7 (2020), rev den,
367 Or 826 (2021). As a result, on remand, the trial court
entered an order directing the surplus funds to be disbursed
to PDXF3 through its attorney, Weill.
Subsequently, Lincoln filed the present action
against PDXF3 and Weill, alleging that the Geppert Estate’s
transfer of the deed to PDXF3 was fraudulent under the
UVTA. Weill moved for summary judgment, and the trial
court granted the motion, issuing a limited judgment of dis-
missal with prejudice as to Weill.
1
Oregon’s Uniform Fraudulent Transfer Act (UFTA) was substantively
amended and redesignated as the UVTA in 2023. Or Laws 2023, ch 83, § 13.
Because the substantive amendments do not apply in this case, we cite to the
prior version of the statute in this opinion. See Or Laws 2023, ch 83, § 14(b)
(amendments to ORS 95.230 and ORS 95.240 do “not apply to a transfer made or
obligation incurred before the effective date of this 2023 Act”).
260 Lincoln Loan Co. v. PDXF3, LLC
On appeal, Lincoln contends that the trial court
erred in granting Weill’s motion for summary judgment,
because there were genuine issues of material fact regarding
whether Weill qualified as a transferee or an insider relating
to the transfer of the surplus proceeds under the UVTA.
“We review a trial court’s grant of summary judg-
ment for legal error, and we will affirm if there are no gen-
uine issues as to any material fact and the moving party is
entitled to judgment as a matter of law.” Towner v. Bernardo/
Silverton Health, 304 Or App 397, 400, 467 P3d 17, rev den,
367 Or 115 (2020).
At the outset, the parties disagree regarding the
proper scope of Lincoln’s claim on appeal. Weill argues that
Lincoln’s fraudulent transfer claim is limited to the transfer
of the deed, while Lincoln contends that the claim includes
the transfer of the surplus proceeds. We need not resolve
that dispute, because Lincoln is not entitled to a UVTA
claim against Weill with respect to the transfer of the deed
or the surplus proceeds.
We begin with Lincoln’s first two assignments
of error, contending that the trial court erred in granting
Weill’s motion for summary judgment based on the court’s
finding that Weill was not a “transferee” under the UVTA.
The UVTA, codified at ORS 95.200 to 95.310, “describe[s]
when a transfer [of an asset] is considered fraudulent and
provide[s] remedies for affected creditors.” Twigg v. Opsahl,
316 Or App 775, 783, 505 P3d 486, adh’d to as modified on
recons, 317 Or App 815, 505 P3d 516, rev den, 370 Or 303(2022). As relevant, a transfer is fraudulent where “a debtor”
made the transfer “(a) [w]ith actual intent to hinder, delay,
or defraud any creditor of the debtor; or (b) [w]ithout receiv-
ing a reasonably equivalent value in exchange for the trans-
fer * * *.” ORS 95.230(1) (1985), amended by Or Laws 2023,
ch 83, § 8. And UVTA claims are “limited to actions brought
against a debtor, transferee, or the transferred asset.” Petix
v. Gillingham, 332 Or App 504, 513, 550 P3d 414 (2024).
Beginning with the deed, it is undisputed that the
deed itself was never transferred to Weill. Therefore, Weill is
not a transferee of the deed. See id. at 512-13 (concluding that
no UVTA claim was available against the attorney defendant
Nonprecedential Memo Op: 334 Or App 258 (2024) 261
where he was involved in an alleged fraudulent transfer of an
asset, but the asset was never transferred to him).
Turning to the surplus proceeds, that transaction
involved a transfer of the proceeds from the trial court’s reg-
istry to Weill’s law firm trust account, so that Weill could
disburse the funds in trust to PDXF3. That transfer was
ordered pursuant to our decision in Lincoln Loan, 307 Or App
at 225. Lincoln contends that that transfer was fraudulent
in violation of the UVTA. However, under the relevant pro-
visions of the UVTA, relief is available only when a trans-
fer is made by a debtor. ORS 95.230(1) (1985) (“A transfer
made * * * by a debtor is fraudulent as to a creditor” under
the circumstances described in ORS 95.230(1)(a) and (b).
(Emphasis added.)). Here, the funds were transferred to
Weill from the trial court—not a debtor. Cf. Cushman v.
Wilkinson, 129 Or App 317, 879 P2d 873 (1994) (describing
the fraudulent transfer of an asset from a debtor-defendant
to a transferee). That transaction falls outside the scope
of the UVTA and, therefore, the trial court did not err in
granting Weill’s motion for summary judgment.
Lastly, in its third assignment of error, Lincoln
argues that the trial court erred in granting Weill’s motion
for summary judgment based on the court’s finding that Weill
was not an “insider” under the UVTA. Specifically, Lincoln
contends that the transfer of the surplus funds was not con-
ducted at arm’s length, due to Weill’s close relationship with
both the Geppert Estate and PDXF3 at the time of the trans-
action. Under the UVTA, as relevant here, an insider theory
of liability involves the transfer of an asset “by a debtor * * * to
an insider.” ORS 95.240(2) (1985), amended by Or Laws 2023,
ch 83, § 9 (emphases added). Because, as discussed above, the
deed was never transferred to Weill, Weill cannot qualify as
an insider with respect to the deed. And because the surplus
funds were not transferred by a debtor, no insider theory of
liability can be brought under the UVTA against Weill.
The trial court did not err in granting Weill’s motion
for summary judgment and dismissing Lincoln’s fraudulent
transfer claim against him.
Affirmed.