In this case, plaintiffs sought to set aside a transfer of real property allegedly made to defraud a creditor and to establish the priority of interests in that real property. Plaintiffs appeal from the trial court's order granting defendants' summary judgment motion and from the court's award of costs to defendants. In granting summary judgment, the trial court ruled that the property transfer was not fraudulent as a matter of law and that a notice of lis pendens recorded by plaintiffs, based on a claim filed before the Construction Contractors Board (board), was a nullity. We affirm the court's nullification of plaintiffs' notice of lis pendens, reverse the trial court's order dismissing plaintiffs' fraudulent transfer claim, and vacate the court's award of costs to defendants.
The genesis of this dispute is a construction contract between plaintiffs and Alice and Bruce Kanzelman, pursuant to which the Kanzelmans agreed to construct a home for plaintiffs. According to plaintiffs, they advanced money to the Kanzelmans under the contract, which the Kanzelmans then used improperly to purchase real property for themselves, rather than to complete construction of plaintiffs' home. That real property is the subject of this lawsuit.
Plaintiffs took several steps to protect their interests. First, on September 5, 1995, plaintiffs filed a claim with the board based on breach of contract. ORS 701.140(1)(c). Next, on September 26, 1995, they filed a circuit court action for fraud and breach of contract. Finally, they recorded a notice of lis pendens based on each proceeding.
Plaintiffs' fraudulent transfer claim relates to one of those liens—a second mortgage on the subject property, which Alice Kanzelman gave to defendants Francis, aka Frankie, and Bruce Watkins. The origin of the $25,000 mortgage was a monetary loan from Frankie to Alice, who is Frankie's sister. The loan consisted of three checks from three different people, all of which were given to Alice in June 1995:(1) a June 30 personal check from Frankie for $9,000; (2) a June 15 cashier's check from Arsenio Ferrerra for $9,000; and (3) a June 13 cashier's check from Ferrerra's brother, Juan Soto, for $7,000.
In a September 4, 1996, affidavit, Frankie described the circumstances of the loan:
In separate February 19, 1997, affidavits, Ferrerra and Soto explained that they were "long time friends" of defendants and that in June 1995, they learned that Frankie's sister needed some money. They further stated that they hoped to make a better return on their money than they currently enjoyed and, as part of a family transaction, they collectively loaned $16,000 to defendants. They explained the mechanics of the transaction as follows: "Although [their checks were] written to Alice Kanzelman, [they] regard[ed] it as a loan to [Frankie], who in turn loaned it to Alice Kanzelman and included it in the $25,000 note and mortgage." Ferrerra and Soto received no security from either Alice or Frankie in return for their loans.
On July 1, 1995, Alice signed the second mortgage. She did not record it, however, until September 22, 1995. Also, on July 15, 1995, Alice gave defendants a promissory note for the $25,000, which contained repayment terms different from those contained in the second mortgage. On January 26, 1996, the Kanzelmans filed for bankruptcy in the state of Washington.
In deciding whether summary judgment was proper, we determine whether the moving party is entitled to judgment as a matter of law, viewing the evidence in the summary judgment record, and all reasonable inferences flowing from it, in the light most favorable to the nonmoving party. For the moving party to prevail on summary judgment, the record must contain no triable issue of fact. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997).
In plaintiffs' first assignment of error, they argue that the trial court erred in nullifying the notice of lis pendens that plaintiffs recorded based on their claim before the board. With regard to that dispute, there are no issues of material fact. For the reasons that follow, we hold that defendants are entitled to judgment as a matter of law.
ORS 93.740 provides, in part:
By its terms, ORS 93.740 predicates the recordation of a notice of lis pendens on a presently filed "suit" involving an interest in real property. In the context of ORS 93.740 and in common parlance, the term "suit" refers to "an action or process in court." Webster's Third New Int'l Dictionary 2286 (unabridged ed.1993). That understanding is reinforced by subsection 4 of the statute, which requires that "a party recording a notice of pendency shall use substantially the following form * * *." ORS 93.740(4). The specified form requires, among other information, that the party identify the "[c]ourt" in which the "action" has been filed. Id. In turn, under Oregon law, an "action" is commenced by "filing a complaint with the clerk of the court." ORCP 3. Lastly, ORS 93.740 requires that the suit involve, affect, or question "the title to or any interest in or lien upon real property." In other words, the subject of the suit must be an actual interest in real property, not merely a speculative future one. See Hoyt v. American Traders, Inc., 301 Or. 599, 605, 725 P.2d 336 (1986) (ORS 93.740 applies upon the "filing of a complaint in a civil action in which * * * any interest in * * * real property is involved").
Here, plaintiffs recorded their first notice of lis pendens based on a claim before the board in which plaintiffs alleged that the Kanzelmans breached their construction contract. ORS 701.140(1)(c). Filing a claim with the board triggers an administrative
Plaintiffs, nevertheless, argue that a claim before the board satisfies the lis pendens statute because the claim "would eventually become a lien against the [subject real property.]" (Emphasis supplied.) To be sure, an unpaid final order of the board "may be recorded with the county clerk," ORS 701.150(2), in which case it "becomes a lien upon any interest in real property of the person against whom the order * * * is issued * * *." ORS 205.125(3). The recordation of a lien is not automatic, however, nor is that remedy necessarily available following a claimant's success before the board. A lien is an available remedy if, and only if, a damages award by the board remains unpaid ten days after expiration of the 90-day period available for the contractor to pay or the surety to cover it. ORS 701.150. Further, the claimant must initiate the recordation with the county clerk. Id.
Thus, plaintiffs' argument that a damages award from the board may eventually become a lien upon the property proves too much, because it highlights what the administrative proceeding is not and what it does not do. A claim before the board may or may not lead to a judicial remedy, but it is not itself a "suit." The board's award of money damages may or may not later give a claimant the ability to record a lien, but the order itself does not "involve, affect or question any interest in real property," as ORS 93.740 requires. Accordingly, the court did not err in nullifying the notice of lis pendens that was based on the claim before the board.
In plaintiffs' second assignment of error, they contend that the court erred in granting defendants' summary judgment motion on plaintiffs' fraudulent transfer claim. Claims of fraudulent transfers of property are controlled by the Uniform Fraudulent Transfer Act (UFTA). ORS 95.200 et seq. Under UFTA, a plaintiff can prove fraud in two ways: (1) that the transfer was made "with actual intent to hinder, delay, or defraud any creditor[,]" ORS 95.230(1)(a); or (2) that the transfer constituted constructive fraud due to inadequate consideration for the property conveyed and the insolvency or near insolvency of the debtor. ORS 95.230(1)(b); ORS 95.240. Although the adequacy of consideration may also evince an actual intent to defraud, see ORS 95.230(2)(h), the proof under each theory is distinct and does not necessarily overlap. Here, although plaintiffs asserted both theories to support their fraudulent transfer claim,
Plaintiffs argue that several "badges of fraud set forth in ORS 95.230 are present[,]" thus precluding summary judgment.
Consequently, either party may rely on the factors set forth in the statute to raise or dispel inferences of actual intent. Id. at 223, 888 P.2d 571. Essentially, competing inferences from the parties' evidence lie at the heart of a case under subsection (1)(a) of UFTA.
Given that on summary judgment review we must view all inferences most favorably to plaintiffs, defendants cannot prevail at this procedural juncture. The record shows the presence of three statutory badges of fraud, which together and in the context of this case give rise to an inference of actual fraudulent intent.
Accordingly, there is evidence that Alice was in a dire financial state and, consequently, borrowed a significant amount of money from her sister and her sister's friends. However, she gave those friends nothing in exchange for their loans, providing only a mortgage and promissory note to her sister and her sister's husband. The inference that may be drawn in plaintiffs' favor is that the money loaned by Ferrerra and Soto was not part of the mortgage transaction which, in turn, could lead to the conclusion that the second mortgage was not supported by adequate consideration. Furthermore, those documents contained different repayment terms, supporting a reasonable inference that they were distinct repayment "options," the usefulness of which depended on the occurrence of future events that might affect title in the subject property. Lastly, because Alice did not record the mortgage until shortly before plaintiffs filed their action in circuit court against her, an additional corresponding inference follows—Alice's decision to record the mortgage was prompted by her anticipation of the lawsuit. From those facts, a factfinder reasonably could infer that Alice wanted to defeat plaintiffs' potential interest in the subject real property and that she anticipated plaintiffs' action, recording the second mortgage only when she knew plaintiffs could acquire a possibly superior interest in the property absent the second mortgage.
The affidavits submitted by defendants provide testimonial rebuttals to plaintiffs' claim. Specifically, the affidavits from Frankie, Ferrerra, and Soto arguably explain the transaction in such a way as to refute an inference of fraud. Also, in her affidavit, Frankie provides an explanation which, if believed by a factfinder, would defeat a claim of actual intent to defraud. As noted, the statute "contains no suggestion that certain factors carry more weight than others
* * * on which the action lies are exclusively within the control of the party moving for summary judgment"). Consequently, the trial court erred in granting defendants' summary judgment motion as to plaintiffs' fraudulent transfer claim.
In plaintiffs' third assignment of error, they challenge the trial court's award of prevailing party fees to defendants. We do not reach that issue because the award was predicated upon the trial court's award of summary judgment to defendants. Accordingly, we vacate the award of costs.
Affirmed as to trial court's nullification of plaintiffs' notice of lis pendens; reversed and remanded as to plaintiffs' fraudulent transfer claim; prevailing party fee award vacated.