,_ v - Fifth Court of Appeals

In Appellee's Motion for Summary Judgment, Appellee seems to confuse
the elements of common-law fraud and fraud in the inducement with a statutory
claim for alleged violations of the Uniform Fraudulent Transfer Act codified at
Tex. Bus. & Comm. Code § 24.005.
To prove a violation ofthe UFTA, a plaintiff must prove certain actions and
certain intent of the defendant:
"A transfer made or obligation incurred by a debtor is fraudulent as to a
creditor, whether the creditor's claim arose before or within a
reasonable time after the transfer was made or the obligation was
incurred, if the debtor made the transfer or incurred the obligation:
(1) with actual intent to hinder, delay, or defraud any creditor of the
debtor; or
(2) without receiving a reasonably equivalent value in exchange for the
transfer or obligation, and the debtor: A) was engaged or was about to
engage in a business or a transaction for which the remaining assets of
the debtor were unreasonably small in relation to the business or
transaction; or (B) intended to incur, or believed or reasonably should
have believed that the debtor would incur, debts beyond the debtor's
ability to pay as they became due. " 4
Appellee filed a traditional summary judgment motion, so the burden is on
Appellee to prove all elements of his causes of action. The burden is clearly on
the summary judgment movant to show: ( 1) there is no genuine issue of material
fact; and (2) the movant is entitled to judgment as a matter of law. T.R.C.P.
166a( c). Even if the non-movant does not file a response and the motion for
summary judgment is uncontroverted, the movant still carries the burden of proof.
4 See Tex. Bus. & Comm. Code§ 24.005, Transfers Fraudulent as to Present and
Future Creditors
APPELLANT'S BRIEF 23