The Wisconsin court of appeals clarified in Beck v. BidRX, LLC the requisite elements to proving a fraudulent transfer claim under Wis. Stat. Ch. 242. App. No. 2017AP2043 (Ct. App. Aug. 15, 2018). The court reversed the circuit court’s ruling that a fraudulent transfer occurred because there was no evidence that the transfers were for an antecedent debt.
The Becks were awarded $108,235 in a default judgment against BidRX, LLC (“BidRX”) for an unpaid promissory note. The Becks filed a nonearnings garnishment action against BidRX as the debtor and Fiscal Intermediary Third Party Funds Services, LLC (“Fiscal”) as garnishee. The Becks alleged in the garnishment action that BidRX fraudulently transferred funds to Fiscal. In addition to pointing to bank records allegedly showing a number of transfers between BidRX and Fiscal, the Becks argued that Fiscal was an “insider,” in part, because the entity had been formed by an attorney working for BidRX. The circuit court held that BidRX made fraudulent transfers to Fiscal under Wis. Stat. § 245.05(2). Additionally, the circuit court imposed a judgment of $2,073.77 against BidRX. The court of appeal reversed.
The court of appeals stated that a plaintiff must prove the following elements to establish a fraudulent transfer claim:
- The creditor’s claim arose before the transfer,
- The transfer was made to an insider for an antecedent debt,
- The debtor was insolvent when the transfer was made, and
- The insider-transferee had reasonable cause to believe the debtor was insolvent.
The only evidence the Becks submitted was over 300 pages of bank records showing transfers between BidRX to Fiscal. The court held that the Becks failed to prove element number two, and that no evidence was offered to show “why any transfer was made and for what debt.” ¶ 16. “The fact of a transfer to an insider is not enough; it is the preferential payment of prior debts to insiders to which the statute is addressed.” Id. The court rejected the Becks’ argument that Wis. Stat. 242.05(2) assumes the existence of an antecedent debt as the reason for the conveyance.
The court of appeals further held that the circuit court did not have the authority to order a judgment against BidRX because BidRX was the debtor, and not the garnishee, in this garnishment action. The purpose of a garnishment action is to recover debtor’s property held by third parties that is owed to a creditor; nothing in the garnishment statutes permits a court to issue a money judgment against non-garnishees.
Beck v. BidRX, LLC is the first Wisconsin case to definitively set out the elements for a fraudulent transfer claim under Wis. Stat. 242.05(2), and follows other courts across the nation in construing the elements in accordance with the Uniform Fraudulent Transfers Act. Additionally, this case establishes that circuit courts may not impose money judgments against debtors in garnishment actions.