FIRST SECURITY BANK & TRUST COMPANY, Plaintiff-Appellant, vs. DAVID A. KING and BEATRICE KING, Husband and Wife, ALLMERICA FINANCIAL LIFE INSURANCE & ANNUITY COMPANY, and SCUDDER GATEWAY ANNUITIES, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 6-1013 / 05-2039
Filed January 31, 2007
FIRST SECURITY BANK & TRUST
COMPANY,
Plaintiff-Appellant,
vs.
DAVID A. KING and BEATRICE KING,
Husband and Wife, ALLMERICA
FINANCIAL LIFE INSURANCE &
ANNUITY COMPANY, and SCUDDER
GATEWAY ANNUITIES,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, James M. Drew,
Judge.
A bank appeals from a district court ruling dismissing its petition in an
action pursuant to Iowa Code section 630.16 (2003). AFFIRMED.
David J. Dutton and Carolyn A. Rafferty of Dutton, Braun, Staack &
Hellman, P.L.C., Waterloo, for appellant.
Sarah J. Gayer, Kevin H. Collins, and Theresa C. Davis of Shuttleworth &
Ingersoll, Cedar Rapids, for appellee Allmerica Financial Life Insurance &
Annuity Company.
Judith O’Donohoe of Ellwood, O’Donohoe, Stochl, Braun & Churbuck,
Charles City, for appellee Beatrice King.
Heard by Mahan, P.J., and Vaitheswaran and Eisenhauer, JJ.
2
MAHAN, P.J.
First Security Bank & Trust Company (First Security) appeals from a
district court ruling dismissing its petition pursuant to Iowa Code section 630.16
(2003) seeking to subject certain property to the satisfaction of a judgment
against David King. We affirm.
I. Background Facts and Proceedings
David King and Mike Walker formed All-States Quality Foods, Inc. (AllStates) in 1984.
King’s wife, Beatrice King, provided $30,000 of the initial
$35,000 needed to start the business.
Beatrice did not receive stock or a
promissory note for her investment, but she considered the company her
“family’s business.” The business was sold in May 1995.
After the sale of All-States, David became the sole owner of King’s Nature
Ranch, an ostrich and elk ranch. 1 Beatrice was not involved in the day-to-day
operation of the business and knew very little about the business and its
finances.
Prior to the sale of All-States, David assured Beatrice that the proceeds
from the sale would be invested and owned jointly. David, however, took the
$3 million net proceeds and invested it in his own name.
He explained to
Beatrice that he invested the money in his name alone so he would not have to
“bother” her every time he wanted to make a withdrawal.
Beatrice was furious with David when she learned the money was
invested in his name only. She had taken over the family’s nonbusiness related
1
David and Mike Walters had started Quality Ostrich Ranch, Inc. in 1992. David bought
Walter’s interest in the ranch in 1995.
3
financial responsibilities in 1993, after David suffered a “nervous breakdown” and
was hospitalized in a psychiatric ward for one month, and remained concerned
about David’s unwise financial decisions. The couple continued to fight about the
proceeds from the sale of the business for several months.
In April 1996, after hearing rumors of David’s extra-marital affairs, Beatrice
asked David to leave the family home and gave him an ultimatum: she would
divorce him unless he gave her $1 million and the title to their new house. David
moved out for approximately four months. In July 1996 David had $1 million
transferred from an annuity he owned to an annuity in Beatrice’s name. He also
promised her the house they were building would be in her name alone.
Subsequently, Beatrice told David he could come home.
David did not disclose the $1 million transfer to First Citizens National
Bank, his bank at the time. The bank discovered the transfer during a routine
periodic inspection a few weeks after the transfer, but did not call any of David’s
loans or claim he had violated any loan covenant. David still had “significant”
other assets after transferring the million dollars to Beatrice.
In April 1999 David approached First Security to discuss a loan for King’s
Nature Ranch. The bank’s vice president, Charles Souder, learned the ranch
had experienced big losses in the previous two years and was losing
approximately $50,000 per month.
He knew the business had never been
profitable and repayment of any loan would depend upon the business turning a
corner to make a profit.
David applied to First Security for a $150,000 loan on May 11, 1999, and
agreed to personally guarantee the full amount of the loan as well as any future
4
loans.
The bank initially requested personal guarantees from Beatrice and
David, but was told by David that Beatrice would not be willing to give a personal
guarantee.
The bank agreed to make the loan with only David’s personal
guarantee. Its approval on May 11 was contingent on receipt of David’s financial
statement.
David provided the bank with a personal financial statement dated
May 15, 1999.
The form indicated it was a “joint” financial statement with
Beatrice, but it was not signed by Beatrice, nor did she ever have any contact
with the bank. The statement listed assets of $2.9 million and a net worth of
$2.7 million. The assets listed included mutual funds, money market funds, and
annuities totaling approximately $2.2 million.
David listed the name of his
financial advisor on the statement. He told Souder the cash and vehicles were
Beatrice’s but that he owned the remaining assets, including the $2.2 million of
stocks. However, David had included the $1 million annuity that was transferred
to Beatrice; he actually owned only $360,000 in stocks at that time.
First Security made additional loans in 1999 and 2000. David provided
additional personal financial statements and made oral representations as to his
investment assets. The bank did nothing to independently verify the information
contained in the personal financial statements submitted by David.
It never
contacted David’s financial advisor to verify ownership of investments, 2 nor did it
request a copy of a brokerage statement from David to verify ownership. Even
after the FDIC “classified” the loans in October 2001 and David indicated to the
2
Pete Tousignant, David’s financial advisor, testified that he is contacted “all the time” by
lending institutions to verify the ownership of investments.
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bank in March 2002 that he “had no money,” the bank did nothing to verify
David’s assets.
In April 2002 First Security began liquidating King’s Nature Ranch. The
bank secured an approximate $1.2 million judgment against David in October
2003. An execution was issued and returned unsatisfied in December 2003, and
the present action ensued.
First Security filed its petition pursuant to section 630.16, seeking to
subject Beatrice’s property—namely, the annuity established in 1996—to the
judgment against David. The bank named David and Beatrice as defendants
and later added Allmerica Life Insurance & Annuity Company and Scudder
Gateway Annuities as defendants. The bank claimed fraud under two theories:
(1) Iowa Code chapter 684, the Uniform Fraudulent Transfers Act, and
(2) equitable fraud.
Following a bench trial, 3 the district court filed a ruling
dismissing the petition. The court concluded (1) the bank’s claim of fraud under
chapter 684 was untimely and (2) the bank failed to prove the elements of
equitable fraud.
First Security filed a motion pursuant to Iowa Rule of Civil
Procedure 1.904(2), which was denied by the district court. 4
The bank appeals, arguing (1) its cause of action for fraudulent transfer
pursuant to chapter 684 was timely and (2) it met its burden of proving equitable
fraud.
3
David did not appear in person or by counsel at trial. The district court entered a
default against David pursuant to Iowa Rules of Civil Procedure 1.971 and 1.972.
4
Appellee Allmerica Financial Life Insurance & Annuity Company argues First Security’s
appeal is untimely because its motion pursuant to rule 1.904(2) did not toll the time for
appeal. See Bellach v. IMT Ins. Co., 573 N.W.2d 903, 905 (Iowa 1998). We assume
without deciding that First Security’s appeal is timely.
6
II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P.
6.4. We give weight to the fact findings of the district court, but are not bound by
them. Iowa R. App. P. 6.14(6)(g). “We are especially deferential to the district
court’s assessment of witness credibility.” Johnson v. Kaster, 637 N.W.2d 174,
178 (Iowa 2001) (citation omitted).
III. Iowa Code Chapter 684
Transfers by a debtor are fraudulent to a future creditor if made with actual
intent to hinder, delay, or defraud any creditor of the debtor.
Iowa Code §
684.4(1)(a). A cause of action with respect to a fraudulent transfer under chapter
684 must be brought “within five years after the transfer was made or the
obligation was incurred or, if later, within one year after the transfer or obligation
was or could reasonably have been discovered by the claimant.” Id. § 684.9.
The alleged fraudulent transfer—the $1 million transfer in 1996—occurred
more than five years before First Security brought this action. Therefore, the
issue before the district court was whether First Security filed its petition within
one year of when the transfer “could reasonably have been discovered.” The
district court concluded as follows:
While ideally every man could be taken at his word, certain
business transactions require due diligence. Mr. Souder testified
regarding the importance of David’s personal guarantee when the
bank decided to make the loans. Given the financial track record of
King’s Nature Ranch there was every reason to believe that the
guarantee might come into play. Furthermore, given the amount of
money that was ultimately involved there was every reason for the
bank to require verification of David’s assets. It was certainly
feasible to do so as Mr. Tousignant testified that he routinely
receives requests from lenders to verify his clients’ investments.
When one considers how easily the bank could have learned that
7
the annuity was not in David’s name or, alternatively, been alerted
by a refusal to provide such basic information there is little doubt
that the bank could have learned of the transfer much earlier than
one year prior to filing the petition. Accordingly, the transfer could
reasonably have been discovered more than one year prior to filing
the petition.
The district court’s conclusions are fully supported by the record, and we adopt
them as our own. We affirm the district court on this issue.
IV. Equitable Fraud
Section 630.16 “furnishes means auxiliary to execution by which a creditor
may uncover property in which the debtor still holds an interest.”
Powell v.
Grewing, 562 N.W.2d 761, 763 (Iowa 1997). In order to prove David still holds
an interest in Beatrice’s annuity, First Security was required to prove the 1996
transfer to Beatrice was fraudulent.
The elements of fraud, which must be established by a preponderance of
clear and convincing evidence, are: (1) representation, (2) falsity, (3) materiality,
(4) scienter, (5) intent to deceive, (6) reliance, and (7) resulting injury and
damage. Morton v. Underwriters Adjusting Co., 501 N.W.2d 72, 73-74 (Iowa Ct.
App. 1993). The rules are not so strict, however, where fraud is alleged in cases
of equity. Id. at 74. “Equity may grant relief absent a showing of scienter or
pecuniary damage.” Id. In equitable fraud cases “the elements of scienter and
intent to deceive are closely related and are shown not only when the speaker
has actual knowledge of the falsity of [his or] her representations but also when
[he or] she speaks in reckless disregard of whether [his or] her representations
are true or false.” Id.
8
When determining whether a transaction constitutes a fraudulent
conveyance, the court looks for certain “badges or indicia of fraud: inadequacy of
consideration, insolvency of the transferor, pendency or threat of third-party
creditor litigation, secrecy or concealment, departure from the usual method of
business, any reservation of benefit to the transferor, and the retention by the
debtor of possession of the property.” Benson v. Richardson, 537 N.W.2d 748,
756 (Iowa 1995). The existence of a blood relationship strengthens the inference
of a fraudulent conveyance, although it is not a per se indication of fraud. Id.
We agree with the district court’s conclusion that First Security failed to
establish fraud in this case. The transfer of $1 million from the proceeds of the
sale of All-States to Beatrice was reasonable and supported by consideration,
given that Beatrice had provided nearly all the initial investment in All-States.
David was not rendered insolvent because of the transfer, and no creditor was
threatening litigation at the time of the transfer. David’s bank at the time of the
transaction, First Citizens National, discovered it within a few weeks, during a
routine inspection. To the extent the transfer was a departure from the couple’s
usual method of managing their finances, such a departure was due to the
existing marital discord between the parties, not fraud.
First Security contends that certain transfers of money from Beatrice
directly to David, or for his benefit, between 1996 and 2004 are indicative of
fraud. We disagree. Rather, the evidence supports the district court’s conclusion
that
Beatrice has total control over all the funds and that all
disbursements have been made at her discretion. Given the length
of the marriage and the dissipation of David’s personal wealth,
9
Beatrice’s use of the funds is not so out of the ordinary as to
indicate fraud.
In reaching our conclusion, we are especially deferential to the district court’s
assessment, which found Beatrice
to be very credible with respect to the facts surrounding the transfer
and the use of those funds. Her testimony was given confidently
without any signs of fabrication. While David may have dealt
dishonestly with the plaintiff, the court is convinced that the transfer
of funds to Beatrice was for the reasons stated and that she did not
act in concert with David in perpetrating a fraud.
Finally, First Security failed to prove justifiable reliance. “[T]he test for
determining whether a party to a transaction has a right to rely on
representations of the other is . . . whether the complaining party, in view of his
own information and intelligence, had a right to rely on the representations.”
Lockard v. Carson, 287 N.W.2d 871, 878 (Iowa 1980). The bank could easily
have verified David’s personal assets by requesting a brokerage statement from
David or seeking a release to speak with his financial advisor. As the district
court concluded, “[g]iven the minimal effort that would have been required from
the bank compared to the importance of the information, the bank’s reliance on
David’s personal financial statements was neither justified nor reasonable.”
We affirm the decision of the district court.
AFFIRMED.
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