ELIOT DISCOUNT CORPORATION vs. FRANCIS W. DAME, individually and as trustee, & another. [Note 1]

FINE, J. The plaintiff, Eliot Discount Corporation (Eliot Discount), brought this action seeking to have a conveyance of certain real estate set aside as a fraudulent transaction under G. L. c. 109A, the Uniform Fraudulent Conveyance Act. The conveyance was made in July of 1972 by one defendant, Francis W. Dame, to himself and another defendant, Ann Milroy, as trustees of the Dame Realty Trust. [Note 2] The case was tried before a judge in the Land Court. At the close of the plaintiff's case,

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each defendant made an oral motion for a directed verdict. [Note 3] No action was taken on the motions, and the defendants were invited to present evidence. Both defendants rested without doing so. The judge, in his decision, considered the plaintiff's evidence in light of each of the four separate sections of G. L. c. 109A relied upon by the plaintiff and ruled in favor of the defendants as to each section.

The judge found the relevant facts to be as follows. At some time prior to 1972, Cafe 553, Inc., became indebted to Eliot Discount. [Note 4] On February 3, 1971, Cafe 553, Inc., was dissolved. [Note 5] On April 10, 1972, a promissory note in the amount of $31,000, representing the prior indebtedness of Cafe 553, Inc., to Eliot Discount, was signed on behalf of Cafe 553, Inc. The note was secured by property and capital stock of Cafe 553, Inc. At some time Dame had been employed as a bartender at the cafe which had been operated by Cafe 553, Inc. He and another individual signed the note as guarantors. Payments on the note were due at the rate of $150 per month and were made sporadically through November, 1974. On January 19, 1982, based upon Dame's signature as guarantor, Eliot Discount obtained an execution on a judgment against him in the amount of $57,106.38. The real estate, which is the subject of the present controversy, had been purchased by Dame in 1969. The transfer in July of 1972 of this property to himself and Milroy as trustees was made for a nominal consideration. Milroy and Dame were not related. A sheriff's sale was held on April 2, 1982, at which Eliot Discount purchased the premises for $30,581.85.

The judge ruled that Dame's contingent liability on the note constituted a "debt" within the meaning of G. L. c. 109A,

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Section 1, [Note 6] and that the conveyance was made without "fair consideration" within Section 3. The judge ruled, correctly, that there was no evidence of Dame's state of mind or intent at the time of the transfer, or that Dame was engaged in, or about to engage in, any business or transaction that would justify setting aside the conveyance under G. L. c. 109A, Section 5, Section 6 or Section 7. [Note 7]

The only issue of consequence in this appeal arises under G. L. c. 109A, Section 4, which provides: "Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration." Insolvency, for these purposes, is defined in Section 2(1) as follows: "A person is insolvent within the meaning of this chapter when the present fair salable value of his assets is less than the amount that will be required to pay his probable liability on his existing debts as they become absolute and matured." Relying on Kerrigan v. Fortunato, 304 Mass. 617, 620 (1939), the judge ruled that the plaintiff, Eliot Discount, had the burden of proving either that the conveyance was made while Dame was insolvent or that the conveyance rendered him insolvent. No evidence of Dame's financial condition having been introduced, the judge

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ruled that the plaintiff's burden had not been met, and, consequently, he entered judgment for the defendants. We agree with the judge's conclusion, and, therefore, we affirm.

The Kerrigan case was presented to the Supreme Judicial Court in the same posture with respect to the claim of a creditor under G. L. c. 109A, Section 4, as that in which the instant case has been presented to us. The plaintiff in Kerrigan rested his case after presenting evidence of a debt and transfers of real property without payment for the fair monetary value of the property. The defendant rested his case without presenting any evidence. Id. at 618-619. The court said: "It does not appear that when the conveyances were made, `the present fair salable value of his [the defendant's] assets . . . [was] less than the amount that . . . [would] be required to pay his probable liability on his existing debts as they became absolute and matured,' and hence it cannot be said to have been proved that he was then insolvent within the meaning of G. L. (Ter. Ed.) c. 109A, Section 2(1). The evidence is not sufficient to show that by the conveyances the defendant . . . was rendered insolvent as to creditors, without regard to his actual intent, within the provisions of Section 4 . . . ." Id. at 620-621. See also Massachusetts Elec. Co. v. Pacific Natl. Inv. Corp., 9 Mass. App. Ct. 752 (1980).

Eliot Discount argues that it has met its burden under Section 4 by proving that the conveyance was made upon inadequate consideration after Dame incurred the indebtedness. In that situation, Eliot Discount argues, a presumption of insolvency arises, placing on the defendants the burden of producing evidence of Dame's solvency at the time of the transfer. If that argument is sound, then Eliot Discount should have prevailed, since the defendants rested without offering any evidence. Eliot Discount attempts to distinguish the Kerrigan case on the ground that the conveyance in that case involved a husband and wife and a tenancy by the entirety. See Kerrigan v. Fortunato, 304 Mass. at 619, 620. Although we fail to appreciate the significance of that distinction, we think that there is at least a plausible rationale for the proposition urged by Eliot Discount in that Dame is obviously the party most familiar with

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his own financial situation, and the facts regarding that issue are probably more readily available to him than to Eliot Discount. Such considerations have, on occasion, been viewed as significant for the purpose of allocating the burden of producing evidence. See William Rodman & Sons v. State Tax Commn., 373 Mass. 606, 611 (1977); Moore v. New York, N.H. & H.R.R., 173 Mass. 335, 337 (1899); 9 Wigmore, Evidence Section 2486, at 290-291 (Chadbourn rev. 1981).

The issue of the proper allocation of the burden of production is not one that was pressed by the plaintiff in the Kerrigan case, or by the plaintiff in the Massachusetts Elec. Co. case, which followed it. Because we regard the issue as one of significance to those engaged in conducting financial transactions, we have examined the authorities to see whether, during the forty-five years since the Kerrigan case was decided, its force has been eroded. We note that G. L. c. 109A follows the Uniform Fraudulent Conveyance Act, which has been adopted by twenty-six States. Section 12 of that act requires that it be "interpreted and construed [so] as to effectuate its general purpose to make uniform the law of those states which enact it." This statutory exhortation, however, has been to no avail on the issue at hand. The States are sharply divided as to the party on whom to place the burden of proving solvency or insolvency. [Note 8] Therefore, the desirability of consistency among the States is not a factor which can influence our decision.

We reject the argument of Eliot Discount on the ground that the rule in the Kerrigan case conforms generally to at least two

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consistent threads in Massachusetts law regarding burden of proof and presumptions. First, the burden of producing evidence is usually placed upon the party who is trying to show that which is not normal, customary, honest, or regular. See Epstein v. Boston Housing Authy., 317 Mass. 297, 301 (1944), and cases cited; Liacos, Massachusetts Evidence 41, 51-60 (5th ed. 1981). Although we are in an era of widespread home financing, consumer credit, and student loans, the condition of solvency, we think, remains more normal, or more likely, than the condition of insolvency.

Second, a party making a claim and seeking to alter the status quo to another party's disadvantage usually has the burden of proving all of the elements of his claim. See Liacos, supra at 41. Specifically, a party making a claim under a statute usually bears the burden of proving that he comes within the terms of the statute. Sullivan v. Quinlivan, 308 Mass. 339, 342 (1941). In Treasurer & Recr. Gen. v. Cunniff, 357 Mass. 206, 207 (1970), the plaintiff sought, under G. L. c. 123, Section 96 (now c. 123, Section 32), to recover payment from a husband for care provided over a lengthy period for support of the man's wife in a State mental hospital. The statute provided for such recovery when there was "sufficient ability" to pay for such support. Id. at 208. The plaintiff proved that the husband owned real estate and stock in a corporation bearing his name, but not the value of those holdings. The plaintiff was denied the relief sought because of the absence of the requisite proof. Id. That case was one in which the public interest favoring the plaintiff's claim was strong. If control over the relevant financial information and ease of proof were to be regarded as decisive factors in allocating the burden of production, the burden in that case would have shifted to the defendant. When the Legislature enacting a statute intends to shift a burden of producing evidence or to create a presumption it knows how to do so explicitly. See, e.g., G. L. c. 32, Section 94A (presumption regarding disability or death of fire fighter caused by respiratory disease); G. L. c. 194, Section 16 (presumption regarding existence of heirs for purposes of administration of estates).

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The present case is not one in which considerations of fairness require a different result. The original note signed by Dame as a guarantor was not given in exchange for a new loan but only in recognition of past indebtedness. Payments were being made on the note at the time of the challenged conveyance. Since the note was secured by property of the corporation and Dame was not the only guarantor, in July of 1972 Dame could have expected the creditor to look elsewhere for payment. Eliot Discount is not without a remedy at the present time. It has obtained and may enforce a judgment against Dame in the amount of $57,106.38. All that we hold in this case is that Eliot Discount may not alter the status quo in such a way as to deprive Milroy, who is not the debtor and is now the sole trustee of the real estate, of ownership and possession of the property.

Judgment affirmed.