Orix Financial Services, Inc. v. Water & Sewer Utility Construction, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_____________ April 18, 2008
THOMAS K. KAHN
No. 07-11638 CLERK
_____________
D.C. Docket No. 06-00312-CV-J-20-MCR
ORIX FINANCIAL SERVICES, INC., formerly known as Orix
Credit Alliance, Inc.,
Plaintiff-Appellee,
versus
WATER & SEWER UTILITY CONSTRUCTION, INC.,
ROD & ROD, INC.,
JOHN L. RODGERS,
CHARLES F. RODGERS,
CHARLES F. RODGERS, as tenancy by the entirety,
as co-trustee of the Charles/Laura Trust,
LAURA S. RODGERS, as tenancy by the entirety,
as co-trustee of the Charles/Laura Trust,
JOHN L. RODGERS, as tenancy by the entirety,
RESSA C. RODGERS, as tenancy by the entirety,
FOUR-A CONSTRUCTION , INC., a Florida corporation owned by the
daughters of John and Ressa, and of which John serves as the
sole officer and/or director,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Middle District of Florida
____________
(April 18, 2008)
Before EDMONDSON, Chief Judge, HILL and ALARCON,* Circuit Judges.
PER CURIAM:
In 2002, appellee Orix Financial Services, Inc. (Orix or creditor) obtained a
default judgment in the amount of $337,821.26, against appellants Water and
Sewer Utility Construction, Inc., Rod & Rod, Inc., John L. Rodgers (JLR) and
Charles F. Rodgers (CFR), (collectively debtors), in a New York federal district
court. In 2003, Orix registered that $337,821.26 default judgment in Florida
federal district court. In 2005, the Florida district court granted Orix’s motion for
writ of garnishment, directed to Vystar Credit Union (Vystar). Vystar answered
the writ by itemizing the debtors’ various checking, savings and trust accounts.
On May 11, 2005, the debtors filed affidavits of exemption claiming that the
accounts were exempt on the basis that they were: (1) proceeds from social
security benefits; (2) trust accounts; and/or (3) accounts held by husbands and
*
Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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wives as tenants by the entirety. On May 13, 2005, Orix filed a written objection
to the affidavits.
On May 17, 2005, the debtors filed a motion seeking to dissolve the writ,
claiming again that the accounts garnished by Orix were exempt from
garnishment. On May 19, 2005, Orix filed a response to the debtors’ motion and
the procedural finger-pointing began.
Orix claimed that the debtors failed to comply with Fla. Stat. § 77.041(1)
(2005), which requires that a claim form be filed together with each affidavit. The
debtors claimed that Orix failed to comply with Fla. Stat. § 77.041(3) (2005)
because it failed to file its objection within two business days after receipt of the
claim.
After hearing, the magistrate judge construed the debtors’ original affidavits
of exemption as the requisite claims of exemption. It construed Orix’s objection
as timely filed within two business days and denied the debtors’ motion for
summary judgment. The writs of execution issued on March 22, 2006. The next
day Orix filed a motion for proceedings supplementary to execution and for
impleader of third parties, as defendants in execution pursuant to Fla. Stat. § 56.293
(2005).**
The district court granted Orix’s motion and held an evidentiary hearing to
determine whether amounts frozen by Vystar were subject to garnishment as either
the proceeds of fraudulent transfers from CFR or from JLR, or, were exempt from
garnishment because they were either proceeds from social security benefits, trust
property or property held as tenants by the entirety. At hearing, evidence was
presented by both the creditor and the debtors to enable the district court to
determine whether the frozen Vystar monies should be released to the respective
account holders or to Orix, and, whether any of the debtors should account to Orix
as a recipient of a fraudulent transfer.
The district court issued its findings of facts and conclusions of law on
March 29, 2007. The next day judgment was entered against CFR and his wife, as
co-trustees of the revocable trust, in the amount of $57,933.32, on account of
transfers to the trust; against JLR and his wife, as tenants by the entirety, in the
amount of $69,374.68, on account of voidable transfers made by JLR; and against
Four-A, in the amount of $30,000, on account of a voidable transfer. The district
court ordered Vystar to pay the amounts frozen in the debtors’ respective checking
**
The impleaded defendants were JLR and his wife, as tenants by the entirety; CFR and
his wife, as tenants by the entirety; CFR and his wife, as co-trustees of a revocable trust; and
Four-A Construction, Inc. (Four-A), a trust corporation solely controlled by JLR.
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accounts and trust accounts to Orix.
The debtors now appeal the judgment of the district court. They raise the
following five issues on appeal:
1. Whether, under de novo review, the district court correctly determined
that Orix complied with the procedural statutory requirements of Fla. Stat. §§
77.041(3) and 77.061 (2005) in order to prosecute the writ of garnishment, by
filing an unsworn statement, and not a sworn statement, to the debtors’ affidavits
of exemption.
2. Whether the district court was clearly erroneous in applying a four-year
statute of limitations to the avoided transfers, and clearly erroneous in finding that
the action to avoid the transfers was commenced within one year of the transfers.
3. Whether, under de novo review, the district court correctly applied
Florida trust and homestead law in avoiding transfers to, and entering judgment
against, CFR and his wife, as co-trustees of a revocable trust.
4. Whether, under de novo review, the district court correctly avoided
transfers to, and entered judgment against, JFR and his wife, as tenants by the
entireties for the entire amount avoided, and not the lesser amount garnished.
5. Whether the district court was clearly erroneous in concluding that the
Four-A transfer was made with actual intent to defraud.
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We have carefully studied the entire record in this appeal, including the
briefs and the arguments of counsel at oral argument. We find each of these five
issues to be without merit. Finding no error, the judgment of the district court is
AFFIRMED.
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