,_ v - Fifth Court of Appeals

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lo In Appellee's Motion for Partial Summary Judgment, Appellee makes a bare assertion that " ... Invictus did not receive any value for the transfers to Fabiani and Guardado." CR. 23. However, there is no evidence cited for this proposition. CR. 23-24. On the other hand, Appellant presented proof that Invictus did receive value for the transfers. Appellant Fabiani's Affidavit in his Response to the Motion for Summary Judgment states that Invictus was paying back other outstanding loans with the funds from the sale ofthe Compliance Depot units. CR. 184-185. Appellee failed to present proof of the required elements under the UFTA. ISSUE FOUR Whether the damages awarded for fraudulent transfer are erroneous under the UFT A and result in an improper double recovery for Appellee. Summary of Argument Even if Appellee had pled and proved fraudulent transfer, the $175,000.00 damages awarded are improper under the UFTA and result in a double recovery for Appellee. Law The UFT A provides specific statutory remedies for creditors. The UFT A § 24.008 specifies that: "(a) In an action for relief against a transfer or obligation under this chapter, a creditor, subject to the limitations in Section 24.009 of this code, may obtain: (1) avoidance of the transfer or obligation to the extent necessary to satisfy the creditor's claim; (emphasis added). APPELLANT'S BRIEF 27
A creditor may also recover a money judgment for the value of the asset transferred or in amount necessary to satisfy the creditor's claim, whichever is less: § 24.009. Defenses, Liability, and Protection of Transferee (b) Except as otherwise provided in this section, to the extent a transfer is voidable in an action by a creditor under Section 24.008(a)(l) of this code, the creditor may recover judgment for the value of the asset transferred, as adjusted under Subsection (c) of this section, or the amount necessary to satisfY the creditor's claim, whichever is less. (emphasis added) Therefore, a creditor, if he has proved the elements of fraudulent transfer, may recover the only the amount necessary to satisfy the creditor's underlying claim. Argument In the case at bar, it is uncontested that the total amount of Appellee's underlying claim against Invictus is $100,000.00 (original amount of the Note) plus 12% interest per annum. CR. 33-36. Therefore, Appellee has no evidence of the $175,000.00 in "actual damages" awarded in the Judgment. Appellee's maximum claim at all times was, at most, for the amount of the Note plus 12% interest. CR. 33-36. Within his own evidence, Appellee admits that the amount due and owing under the Note was $112,000.00 and that this was the amount of his demand from lnvictus. CR. 70. The Judgment erroneously awarded $175,000.00 in "actual damages" with no basis whatsoever. Appellee did not have actual damages of $175,000.00. Appellee's damages are statutorily limited under Tex. Bus. & Comm. Code § APPELLANT'S BRIEF 28
Page 1 and 2: - .. .,_ I Ill • IN THE COURT OF
Page 3 and 4: APPELLANT: JOSEPH FABIANI APPELLEE:
Page 5 and 6: ISSUE FOUR Whether the damages awar
Page 7 and 8: Lucas v. Texas Indus., Inc., ......
Page 9 and 10: Disposition: The trial court grante
Page 11 and 12: The Note was not personally guarant
Page 13 and 14: transfer."). CR. 192. The Judgment
Page 15 and 16: ISSUE ONE ARGUMENT Whether the tria
Page 17 and 18: Argument Appellee's Motion for Part
Page 19 and 20: • No evidence of any representati
Page 21 and 22: fraud was erroneous. Limestone Prod
Page 23 and 24: i I, theory of liability for actual
Page 25 and 26: ,. City of Houston v. Clear Creek B
Page 27: (8) the value of the consideration
Page 31 and 32: As shown herein, the UFTA claim awa
Page 33 and 34: The Gentry Affidavit does not conta
Page 35 and 36: I' applies to judgments on a contra
Page 38 and 39: II /,> CERTIFICATE OF SERVICE This
Page 40 and 41: ·•
Page 42: Jr. recover from Defendants Joseph

,_ v - Fifth Court of Appeals

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