### FILEO 

## COURT OF APPEALS DIVISION II 

## 2015 MAY 27 AM 9: 35 STATE OFW IN THE COURT OF APPEALS OF THE STATE W 

## NON B DIVISION II SHELCON CONSTRUCTION GROUP, LLC, No. 46235 - 4 -II aWashington limited liability company, Respondent,

v. SCOTT M. HAYMOND and JANE DOE HAYMOND, husband and wife; DARRA ODENWALDER, trustee for The Darra Marie Haymond Living Trust, Appellants, A - 3 VENTURE LLC, a Washington limited liability company; A-4 VENTURE, an 

### unknown entitytype; A - 1111 VENTURE LLC, a Washington limited liability company; 14224 PIONEER LIVING TRUST; and ANCHOR MUTUAL SAVINGS BANK, Defendants. UNPUBLISHED OPINION

WQRSWICK, P.J. — Scott Haymond and Darra Odenwalder appeal the trial court' s order issued under the Uniform Fraudulent Transfers Act (UFTA), chapter 19.40 RCW, avoiding 

### Haymond' s transfers ofpropertyto Odenwalder as trustee ofatrust. Odenwalder argues that (1) Odenwalder and the trust were necessary parties to the action, and the trial court lacked jurisdiction 

### by notjoining them; (

### 2) Shelcon Construction Group failed to properly bring an action underthe UFTA, chapter 19.40 RCW before seeking its relief; (3) the statute of 

### limitations had run on Shelcon's claims; and (4) the subject property was improperly attached. Haymond argues that the trial court erred 

### by avoiding the transfers because ( 5) Shelcon failed toNo. 46235 - 4 -II 

### prove all ofthe elements offraud before avoiding the transfers, and (6) the trial courttook no 

### testimony onthe issue. We reverse the orderand remandto the trial courtfor an evidentiary hearing to determine several disputed factual issues and to resolve whetherthe statute of limitations has run on Shelcon' s fraudulenttransfer claim regarding the club membership. We reverse the avoidance ofthe transfer ofthe house, because the statute oflimitations has run. FACTS On October 28, 2011, Shelcon obtained ajudgment and decree of foreclosure against 

### Scott Haymond. We affirmed thatjudgment separately in Shelcon v. Haymond,et al.,No. 42845 -8 -II (Wash. Ct.App. May _, 2014) ( consolidated with No. 44995- 1 - II). This appeal 

### concerns thetrial court' s order in apostjudgment motion by Shelcon, whereby thetrial court 

### avoided two transfers ofproperty as described below.

Scott Haymond lived at a residence located at the East End Lake Tapps Rod & Gun Club the club). 

### Haymond owned the residence, butthe club owned the underlying land. Haymond 

### also owned a membership interest in the club. Darya Odenwalder is Scott Haymond' s sister.

Haymond and Odenwalder created the Darra M. Haymondl Living Trust (the trust) on 

### April 6, 2006, naming Odenwalder as trustor andtrustee. Scott Haymond' s daughterwas the trust's sole beneficiary. On the same day, Haymond transferred his residence and his 

### membership in the club to " Darra Marie Haymond Trustee ofthe Darra M. Haymond Living

1 Darra M. Haymond is the same person as Darra Odenwalder. " Haymond" appears to be Odenwalder' s maiden name. Darra Odenwalder is Scott Haymond' s sister. The record does not explain why she is sometimes referred to as " Darya Haymond," 

### or why the trust bears that name.

2No. 46235 - 4 -II 

### Trust. " 2 CP at 76. The bill ofsale shows no monetary consideration forthe transfer; instead, Haymond transferred the house and club membership in consideration of "WAC-458 -61 -375 CHANGE OF IDENTITY the receipt ofwhich is acknowledged." 3 Clerk's Papers (CP) at 76. 

### Haymond owned and transferred his residence as a building only; he did not own the underlying land. Instead, the club owned the land upon which the house stood. This transfer was not

recorded. On November 14, 2008, Haymond executed an identical transfer.4 This transferwas recorded with the Pierce County Auditor. Haymond claimed this second transfer was an attempt to give public notice ofthe transfer. Again, this transfer included Haymond' s personal residence at the club (but not the underlying land), and Haymond' s club membership. After the transfer of his residence, Haymond continued to live alone at the residence most 

### ofthe time. Odenwalder and Haymond both paid for certain bills relating to the transferred 

### residence and club membership. The trust did not have a bank account. Odenwalder paid


### 2 This wording is ambiguous regarding whether Haymondtransferred the propertyto Odenwalder personally orto the trust. Due to ambiguities in the record and in the briefing,we assume both Odenwalder and the trust have potential property interests in the transfers.. 3 This Department of Revenue provision, repealed effective December 2005, exempted real 

### estate transfers from tax liability where they were merely a change in form or identitywithin a 

### family corporation. Former WAC 458 -61 -375 ( 1994) ( replaced by WAC 458 -61A - 211). This provision is now found at WAC 458 -61A - 211; it provides that atransfer involving atrust, among other entities, where " no change in beneficial ownership has occurred," is exempt from tax liability. 4 Like the 2006 transfer, the 2008 Bill of Sale transferred Haymond' s residence and his club 

### membership to " DARRA MARIE ODENWALDER TRUSTEE OF THE DARRA M. ODENWALDER LIVING TRUST" for no apparent monetary consideration but "in consideration of WAC-458 - 61 -375 CHANGE OF IDENTITY the receipt of which is acknowledged." CP at 169. 3No. 46235 - 4 -II 

### property taxes and insurance on the residence on October 21, 2010. But Haymond paid for club 

### membership dues up until March 13, 2012. Haymond reimbursed Odenwalderfor any bill payments made for the residence, such as utilities and insurance. Odenwalder thought Haymond structured the payments this way so that he would not appear as the payor. 

### Regarding the transfer ofthe club membership, the club' s former president declared that 

### the club' s rules provided that atransferee ofa club membership must obtain approval from the 

### club' s Board ofDirectors before being admitted as a member. Butthe club' s bylaws in the record before us do not contain such a restriction. In December 2011, Haymond showed the club president one ofthe bills of sale. Haymond requested that the president backdate the effective date ofthe club membership and residence transfers "

### by several years," but the president refused. 

### CP at 187. Haymond paid all club membership dues from 2002 until March 2012, when the club approved Odenwalder as a new member. In March 2012, Odenwalder personally became a member; the trust was never a member.

Odenwalder stated in a deposition on August 27, 2012, that she thought the trust was created to benefit Haymond' s daughter, to ensure that the house would not be taken from her. Odenwalder recalled that Haymond had wanted to guard against future legal or financial troubles.

On December 31, 2009, Shelcon sued Haymond. On October 28, 2011, the trial court issued ajudgment in Shelcon' s favor. Thejudgment of $ 553, 849.77 was enteredjointly and 

### severally against Haymond and one ofhis business entities, A - 1111 Venture, LLC. Shelcon' s lawsuit named neither Odenwalder nor the trust as defendants.

4No. 46235 - 4 -II 

### On February 20, 2014, nearly two and a halfyears after obtaining thejudgment, Shelcon 

### initiated a supplemental proceeding to execute itsjudgment against Haymond. Shelcon filed a motion underthe same cause number as itsjudgment against Haymond, asking the trial courtto 

### avoid Haymond' s transfers of (1) his membership in the club and (2) his personal residence. Shelcon made this motion under the UFTA, RCW 19.40.041. Shelcon claimed that Haymond 

### had transferred the club membership to Odenwalderpersonally on March 12, 2012, and that he transferred his personal residence to the trust on April 6, 2006. 

### On January 28, 2014, the trial court ordered Odenwalderto show cause whythe transfers should not be avoided. On March 14, 2014, the trial court conducted a show cause hearing based on written submissions, where Odenwalder argued that (1.) the trial court had no jurisdiction over her or the trust assets, ( 2) Shelcon' s claimed reliefwas time - barred because it was not sought

within four years of the challenged transfers, (

### 3) Shelcon failed to properly initiate an action for relief under chapter 19.40 RCW, and (4) the trial court could not attach the trust' s property without making Odenwalder orthe trust parties. Haymond' s declaration in opposition to the motion to avoid the transfers stated that his 

### financial condition around the April 6, 2006 transfer date was " excellent. I was fully solvent and in great financial condition." CP at 221. He supported this assertion with bank records from the last few months of2008. Haymond further declared that he created the trust for his daughter "to 

### provide for her college by conveying the Lake Tapps propertyto my sister astrustee for her in 

### case something happenedto me. I had no ideathatthe real estate marketwould crash so steeply
and endanger my estate." CP at 221 -22. He stated that he did not have financial problems until 2011. He recalled that he asked to backdate the transfers with the club because " I had recorded

5No. 46235 - 4 -II the transfer and wanted the club to accept the trustee in accordance with the actual date of transfer." 

### CP at 222. Finally, Haymond declared that he continued to live in the house because his daughter could not live there alone and club rules forbade renting houses out. On March 14, 2014, the trial court granted Shelcon's•motion, deciding the case on the . submitted written materials. The trial court avoided both transfers " to the extent necessary to satisfy thejudgment of Shelcon Construction Group, LLC against Scott M. Haymond." CP at 234 - 35. 

### Regarding the residence,the trial court avoided the transfer "to either Darra M. Odenwalder or to Darra M. Odenwalder as trustee for the Darra M. Haymond Living Trust." CP at 234 - 35. Haymond and Odenwalder each moved for reconsideration, and the trial court denied both motions. Haymond and Odenwalder appeal. ANALYSIS I. STANDARD OF REVIEW 

### We review summary proceedings based purely on written documents de novo. Fosterv. Gilliam, 165 Wn.App. 33, 54, 268 P. 3d 945 ( 2011). We also review issues ofstatutory interpretation de novo. State, 

### Dep' t ofEcology v. Campbell & Gwinn, 146 Wn.2d 1, 9, 43 P. 3d 4 2002). 

### When interpreting a statute, we seekto ascertain the legislature' s intent. 146 Wn.2d at 9- 10. Where the meaning is plain on the statute' s face, we give effect to that meaning as expressing the legislature' s intent. 146 Wn.2d at 9 -10. II. ODENWALDER' S STATUS AS AN AGGRIEVED PARTY As a threshold matter, Shelcon argues that Odenwalder cannot seek review because she is

not an aggrieved party. We disagree.No. 46235 - 4 -II
RAP 3. 1 provides that "[ 

### o]nly an aggrieved party may seek review bythe appellate
court." Generally, appellants must be parties to the case. Aguirre v. AT & T Wireless Servs., 109 Wn. App. 80, 85, 33 P. 3d 1110 (2001). But "[ 

### i]n rare cases, a person who is not formally a party 

### to a case may have standing to appeal atrial court' s order because the order directly impacts that person' s legally protected interests." Polygon Nw. Co. v. Am. Nat. Fire Ins. Co., 143 Wn.App. 753, 768, 189 P.3d 777 (2008). 

### Here,the trial court's order avoiding Haymond' s transfers directly impacts the property of Odenwalder and the trust. Thus, Odenwalder and the trust are aggrieved parties under RAP 3. 1. and Shelcon' s argument fails.

II. TRIAL COURT' S JURISDICTION OVER ODENWALDER AND THE TRUST 

### Odenwalder argues that thetrial court lackedjurisdiction over her and the trust by not 

## joining heras anecessaryparty. We disagree.5,6 CR 19(a) provides that a person " shall" bejoined ifhe " claims an interest relating to the
subject ofthe action and is so situated that the disposition of the action in his absence may ... as

a practical matter impair or impede his ability to protect that interest." A transferee of an

5 Odenwalder also argues that the trial court' s order violated her due process rights. " Procedural 

### due process requires that an individual have notice and an opportunity to be heard before he can be deprived of an established property right." 

### Veradale Valley Citizens' Planning Comm. v. Bd. ofCnty. Comm' rs ofSpokane Cnty., 22 Wn.App. 229, 232, 588 P.2d 750 ( 1978). Because we remand the trial court's order on the basis ofthe statute of limitations, we do not reach the issue ofwhether Odenwalder' s due process rights were violated. 

### 6 Odenwalder further argues that she was a necessary party underthe Uniform Declaratory Judgments Act, chapter 7.24 RCW. Shelcon moved for avoidance ofthe transfers under chapter 19.40 RCW, and did not seek declaratoryjudgment. The trial court' s order merely avoided the 

### transfers and did not grant declaratoryjudgmentto Shelcon. Thus, we do not consider this argument.

7No. 46235 - 4 -II 

### allegedly fraudulent transfer is a necessary partyto an action to avoid that transfer. In re Schneider, 99 B. R. 52, 56 ( Bankr. W.D. Wash. 1989); Eggleston v. Sheldon, 85 Wash. 422, 434, 148 P. 575 ( 1915); Junkin v. Anderson, 12 Wn.2d 58, 67, 120 P. 2d 548 ( 1941); see also Nastro v. D 'Onofrio, 263 F. 

### Supp. 2d 446, 450 ( D. Conn. 2003); Tanaka v. Nagata, 76 Haw. 32, 36, 868 P. 2d 450 ( 1994) (

### agreeing with numerous cited authorities and holding "where a creditor alleges a fraudulent transfer ofproperty from ajudgment debtorto atransferee who retains title to the 

### subjectproperty orwho claims an interest inthe property orits proceeds, thetransferee is a necessary party to any action seeking to set aside the transfer "). 

### RCW 6.32.270 provides a procedure by which atrial court can adjudicate disputes such as 

### this one, where ajudgment creditor and a third party contest ajudgment debtor's property in a supplemental proceeding. The statute reads, in relevant part: 

### In any supplemental proceeding, where it appears to the court that ajudgment debtor may have an interest in ortitle to any real property, and such interest ortitle is disclaimed by the judgment debtor or disputed by another person, ... the court 

### may, if the person or persons claiming adversely be a party to the proceeding, adjudicate the respective interests ofthe parties in such real or personal property, 

### and may determine such property to be wholly or in part the property of the judgment debtor. Ifthe person claiming adverselyto thejudgment debtor be not a party to the proceeding, the court shall by show cause order or otherwise cause suchperson to be brought in and made aparty thereto. RCW 6.32.270 (emphasis added). 

### By its plain terms, RCW 6.32.270 provides that in a supplemental proceeding, atrial 

### court may adjudicate ajudgment debtor' s disputed rights in property againstthe rights ofa person claiming the property adversely to the debtor. The statute further provides that an order to show cause served on anonparty is sufficient to make thatperson a party in a dispute overa judgment debtor' s property. RCW 6.32.270. Thus, a show cause order suffices to make a

8No. 46235 - 4 -II 

### person claiming adversely to thejudgment creditor a party to a supplemental proceeding, and the 

### trial court may determine ajudgment debtor's disputed property rights in such a proceeding.

Our Supreme Court held in Junkin v. Anderson that the predecessor to RCW 6.32.2707 

### authorized the trial court to adjudicate disputes even among those who were not full "parties." 12 Wn.2d at 71. 

### The court wrote that it would be " irrational" to require the third party to be made a plaintiffor defendant, because RCW 6.32.270 was designed to resolve property disputes

even where the third - party claimant was not before the trial court. Junkin, 12 Wn.2d at 71. The 

### court held that the statute allowed atrial court to adjudicate property disputes by show cause
order or " otherwise," including through constructive service upon a nonresident. 12 Wn.2d at 71. Thus, the Supreme Court held that this statute provides broad powers for the trial court to 

### bring in nonparties and make them "parties" to a supplemental proceeding through show cause orders or other procedures, even where they are not plaintiffs or defendants. 

### Here, Odenwalder and the trustwere necessaryparties.8 But,under RCW 6.32.270,the trial court' s show cause order made Odenwalder and the trust parties to this supplemental proceeding.

### 9 Therefore,the trial court did notfail tojoin necessary parties; it sufficiently did so by ordering Odenwalder and the trustto show cause whythe transfers should not be avoided.

7 REM. REV. STAT. § 638 - 1. The language of RCW 6. 32.270 is identical to § 638 - 1. 

### 8 Dueto ambiguities in the record and in the briefing,we analyze this issue as ifboth Odenwalder and the trust have potential property interests in the transfers.
9 Odenwalder concedes she was served with the show cause order.No. 46235 -4 -II IV. ACTION PROPERLY COMMENCED Odenwalder argues that Shelcon had no proper cause ofaction, because it did not file a
separate action under RCW 19.40.071. We disagree. The UFTA, chapter 19.40 RCW, provides two paths for a creditor to obtain relieffrom a fraudulent transfer. RCW 19. 40.071. The statute provides that creditors without ajudgment 

### against a debtor may obtain reliefunder 19.40.071(a), which provides several remedies. The

statute provides that those remedies will be available in an " action for relief ... under this chapter." 

### RCW 19.40.071( a); see also Schneider, 99 B.R. at 55 (noting thatthe UFTA "does not specifically state that one must commence an action to set aside the fraudulent conveyance). But
creditors may alternatively seek relief under RCW 19.40. 071( b), which permits creditors who have " obtained ajudgment on a claim against the debtor" to " levy execution on the asset transferred or its proceeds." Ifthe creditor seeks this form of relief,it need not file a separate action under the UFTA, chapter 19.40 RCW. Here, Shelcon had obtainedjudgment against Haymond. Shelcon then instituted 

### supplemental proceedings to levy execution on itsjudgment. The statute plainly contemplates that a creditorwill invoke the UFTA after obtaining ajudgment on some other basis, and provides a remedy in that event. RCW 19.40. 071( b). 

### Requiring a separate lawsuit in such 

### circumstances would do nothing more than unnecessarilytaxjudicial resources. We disagree with Odenwalder, and hold that filing a motion to avoid Haymond's transfers in supplemental proceedings was an appropriate wayfor Shelcon to levy execution on itsjudgment.

10No. 46235 - 4 -II V. STATUTE OF LIMITATIONS VIOLATED Odenwalder argues that the statute of limitations has run on Shelcon' s claim to avoid the 

### transfer ofHaymond's residence and club membership. We agree that the statute oflimitations has run on the transfer ofthe residence and that an issue of material fact remains regarding transfer ofthe club membership. Thus, we reverse the order avoiding the transfers and remand to the trial court to resolve this issue. The UFTA, RCW 19.40.091, provides two statutes of limitations. It provides a four - year

statute of limitations for a plaintiffto bring an action under RCW 19.40.041( a)( 1) ( pleading
actual intent to hinder, delay, or defraud). 

### Alternatively, it provides a one - year statute of 

### limitations after the claimant discovered or reasonably could have discovered the fraudulent

nature of the transfer. RCW 19.40. 091( a); 

### Freitag v. McGhie, 133 Wn.2d 816, 820, 824, 947 P. 2d 1186 ( 1997). As a threshold matter, we hold that the relevant end date for statute of limitations purposes is when Shelcon moved to avoid the transfers, not when Shelcon initially sued Haymond in the underlying case. RCW 19.40.091 provides: " A cause of action with respect to a fraudulent transfer or obligation under this chapter is extinguished unless action is brought .. . 

### u]nder" the various sections providing reliefin the UFTA within the allowed time. As stated above, we give effect to the plain meaning of a statute when possible. Campbell & Gwinn, 146 

### Wn.2d at 9 -10. The terms " action" and " cause ofaction" are not explicitly defined in the UFTA. 

### Black's Law Dictionary defines " action" as any civil or criminal judicial proceeding. BLACK'S LAw DICTIONARY 32 ( 9th ed. 2009). 

### It defines "cause ofaction" as a " group ofoperative facts giving rise to one or more bases for suing." BLACK' S LAw DICTIONARY 251 ( 9th ed. 2009).

11No. 46235-4-11



### Therefore, an "action" is the legal proceeding, whereas a " cause ofaction" is the group offacts underpinning that legal proceeding. 

### The meaning ofRCW 19.40.091 is plain on the statute' s face, so we give effectto that meaning. Campbell & Gwinn, 146 Wn.2d at 9 -10. The statute provides that a " cause of action . under this chapter is extinguished unless action is brought" under the chapter within the statute
of limitations. RCW 19.40. 091. Here, the " cause ofaction" is the set offacts arguably 

### demonstrating afraudulent transfer;the " action" that must be broughtisthe legal proceeding to set aside the fraudulent transfers. This plain language demonstrates that the relevant " action" 

### here is the postjudgment motion to avoid the transfers, not the underlying suit in which Shelcon
prevailed. The legal proceeding, or " action," the statute refers to is an action under the UFTA. 

### The statute plainly requires acreditorto seek reliefunderthe UFTAwithin the UFTA's statute oflimitations. Therefore, because Shelcon sought the UFTA' s relief,we lookto the date on which Shelcon moved to avoid the transfers under the UFTA for statute oflimitations purposes. 

### To betimely, Shelcon' s motion to avoid thetransfers in February 2014 must have occurred either within four years ofthe transfers, or within one year of Shelcon' s discovery oftheir fraudulent nature.

Here, the relevant dates are: 

### April 6, 2006: Haymond executed a bill of sale transferring his house and his 

### club membership to Odenwalder as trustee. CP at 76. November 14, 2008: Haymond executed an identical transfer and recorded the transfer. CP at 169. December 2011: Haymond requested that the club backdate the transfer date. CPat187. March 12, 2012: the club allowed Odenwalderto become a member. CP at 186. August 27, 2012: Shelcon deposed Odenwalder about the transfers. CP at 10. 

### February 20, 2014: Shelcon moved to avoid these transfers. CP at 1.

12No. 46235 - 4 -II
Ifthe statute of limitations began to run in 2006 or 2008 when Haymond executed the bills ofsale, the four year statute of limitations would have expired in 2010 or 2012. Under either scenario, the four - year statute of limitations under RCW 19.40.091( a) would have expired priorto Shelcon' s 2014 motion to avoid the transfers. The one - year statute oflimitations does 

### not rescue the claim. Shelcon does not provide anyfacts about its discovery ofthis arguable fraud. But the record is clear that when Shelcon deposed Odenwalder in August 2012, Shelcon questioned Odenwalder about the nature ofthe trust' s assets, and she said she thought Haymond made the transfers to protect his assets from legal and financial troubles for the benefit of his 

### daughter. Atthis point, Shelcon knew or reasonably should have known ofthe arguably fraudulent nature ofboth transfers. Therefore, the one - year statute of limitations would have 

### expired, atthevery latest,in August2013, one year after Odenwalder's deposition. A. 

### Statute ofLimitations Ran on Transfer ofHouse At oral argument before us, Shelcon conceded that the statute of limitations had expired on the transfer ofthe house before Shelcon sought to avoid these transfers. Wash. Court of Appeals oral argument, Shelcon v. Haymond, No. 46235 - 4 -II (Jan. 20, 2015), at 16 min, 2 sec. through 16 min, 10 sec. ( on file with court). We accept this concession, because uncontroverted evidence before us establishes that Haymond transferred his residence in 2006, more than four years before Shelcon moved to avoid the transfer in 2014. B. 

### Questions ofFact Remain About Transfer ofClub Membership The parties disagree about the date ofthe transfer ofthe club membership. Shelcon 

### arguesthatthe club membership was transferred on March 12, 2012 whenthe club' s board of directors approved Odenwalder as a new member, whereas Odenwalder argues that it was
13No. 46235 - 4 -II
transferred in 2006 when Haymond created the first " Bill of Sale." CP at 76. The declaration from the former club president supports the contention that the transfer occurred in 2012 when the board approved Odenwalder as a new member: he declared that no one could become a club 

### member without first being approved bythe board ofdirectors. Butthe club bylaws do not contain any such rule. Therefore, there remains a question offact as to whetherthe club rules permitted Haymond to transfer his club membership before the board approved the new member. Ifthe club required Board approval before allowing a memberto transfer his membership, then 

### Haymond did nottransfer his club membership until March 2012, and the statute oflimitations would not have run on Shelcon' s claim to avoid this transfer. It is a further question offact whether it is possible to own a club membership without 

### owning a residence atthe club. The bylaws require that all club members own a dwelling, suggestingthat Haymond lost his membership when he transferred his house. Therefore, there was conflicting evidence before the trial court regarding whether Haymond retained a club membership aftertransferring his house in 2006. Ifclub rules prohibited membership without owning a dwelling, then Haymond' s membership was apparently extinguished in 2006. On remand, the trial court should determine whether Haymond retained his club membership after 

### transferring his residence.'° 

### 1° The order avoided the transfers " to the extent necessary to satisfy thejudgment ofShelcon Construction Group, LLC against Scott M. Haymond." CP at 234 - 35. The order does not give Shelcon control overthe assets. But if Shelcon seeks to control the assets, and ifclub rules 

### prohibit membership without adwelling,then itwould be impossible for Shelcon to possess such amembership absent ownership ofa residence. Thus,the trial court may need to determine whether Shelcon is entitled to possess a membership absent owning a residence. There is 

### conflicting evidence before us about whether club rules require members to have dwellings. If that is true, Shelcon may not be entitled to a membership, because the statute oflimitations has run on the dwelling. In otherwords, because Haymond's prior residence is beyond the reach of
14No. 46235 - 4 -II 

### Because ofthese conflicting factual issues, we cannot determine as a matter oflawwhen the transfer ofthe club membership occurred forthe purposes ofthe statute oflimitations. The 

### transfer may have occurred in 2006 or2008 when Haymond executed the bills ofsale, or in 2012 when the club admitted Odenwalder. The trial court must determine whether the statute of limitations has expired on the transfer of the club membership. Shelcon' s motion to avoid the 

### transfer ofthe club membership would have been timely only ifthe trial court determines thatthe transfer ofthe club membership occurred in March 2012 when the board ofdirectors approved Odenwalder as a member ofthe club because club rules required board approval ofany new member. This is an issue offact that we cannot resolve, because resolution requires weighing conflicting evidence. 

### A court may abuse its discretion byfailing to hold an evidentiary hearing when affidavits present an issue of fact whose resolution requires a determination ofwitness credibility." Woodruffv. Spence, 76 Wn.App. 207, 210, 883 P.2d 936 ( 1994). Here, the declarations before the trial court presented questions ofwitness credibility without which the trial court could not resolve the legal question whether the statute of limitations had run. For example, the former club president declared that the club' s rules provided that a transferee ofa 

### club membership must obtain approval from the club' s board ofdirectors before being admitted as amember, butthis declaration is contraryto the club' s bylaws.

Shelcon due to the statute oflimitations, the membership may not be available to Shelcon either, because club rules appear to prohibit possessing a membership without also possessing a dwelling.

15No. 46235 - 4 -II Because the application ofthe statute of limitations therefore is an issue that requires 

### determinations ofwitness credibility to resolve the conflicts between the written declarations, the trial court must hold further proceedings to resolve this question. Moreover, RCW 6.32.270, 

### governing supplementary proceedings involving the disputed property ofa debtor, provides that 

### athird party appearing under a show cause order "may have such issue determined by ajury
upon demand." Thus, the statute appears to contemplate thatthis issue involves credibility 

### determinations appropriate for a hearing, at minimum. Because this court is an error-correcting 

### court, andthere is no ruling on the tolling ofthe statute oflimitations for us to review,we remand to the trial court for further proceedings to determine whetherthe statute of limitations had run on the transfer ofthe club membership. VI. NO FAILURE TO ATTACH PROPERTY 

### Odenwalder also argues that the subject propertywas not properly attached under RCW 6.25. 020. We disagree. RCW 6.25. 020 provides that the plaintiff "may" attach the property ofone or more 

### defendants as security forthe satisfaction ofajudgment. Propertymust be attached as provided in chapter 6.25 RCW. RCW 6.25.020. 

### But here, Shelcon never sought to attach property. The sole relief Shelcon sought, and 

### the sole reliefthe trial court granted, was ofavoiding the transfers under RCW 19.40.071, which does not require attachment under RCW 6.25. 020. Thus, Odenwalder' s argument fails."


### 1i Appellants Haymond and Odenwalderpoint cursorilyto the trial court's failure to dispose of the trust assets in accordance with the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11. 96A RCW.

16No. 46235 - 4 -II Although we reverse the trial court's order avoiding the transfer, we consider the 

### following arguments to " express guidelines to aid in whatever proceedings might follow." Henry v. Town ofOakville, 30 Wn.App. 240, 246, 633 P.2d 892 ( 1981). VII. ELEMENTS OF FRAUD MET 

### Haymond argues thatthe trial court erred by avoiding the transfers when it lacked evidence of a violation ofthe UFTA. We disagree. 

### The UFTA, RCW 19.40.041, provides in relevant part that atransfer by a debtor is fraudulent ifthe debtor made the transfer with "actual intent to hinder, delay, or defraud any
creditor of the debtor." RCW 19.40.041( a). The statute provides 11 nonexclusive factors that a 

## trial court may considerto determinewhetherthetransfer isfraudulent.12 RCW 19.40.041(b).

RAP 10.3( a) requires an appellant' s briefto include an argument citing legal authority and the 

### record. Where an appellant fails to cite authority, or where it gives passing treatment to an issue, 

### we do not consider the argument. See Brownfieldv. City ofYakima, 178 Wn.App. 850, 876, 316 P. 3d 520 (2014). Here, neither appellant' s brief discusses which sections ofTEDRA were 

### violated. Nor does either briefidentify or argue howthe trial court' s order affected the trust as an entity, given thatthe trial court avoided transfers to the trust. Therefore, because these 

### arguments lack citations to authority and are given merely passing treatment,we do not consider them. 12 The factors are whether:

1) The transfer or obligation was to an insider; 2) The debtor retained possession or control ofthe property transferred after the transfer; 3) The transfer or ' obligation was disclosed or concealed; 4) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; 5) 

### The transfer was ofsubstantially all the debtor' s assets; 6) The debtor absconded; 7) The debtor removed or concealed assets; 

### 8) Thevalue ofthe consideration received bythe debtorwas reasonablyequivalent to the value ofthe asset transferred or the amount ofthe obligation incurred; 9) The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
17No. 46235 - 4 -II 

### A trial court may grant a creditorvarious kinds ofreliefifthe debtor has made afraudulent transfer, 

### including but not limited to "[ a] voidance of the transfer or obligation to the extent necessary to satisfy the creditor' s claim." RCW 19.40. 071( a)( 1). The party alleging actual 

### intent to hinder, delay, or defraud must prove such intent by clear and satisfactory evidence. Douglas v. Hill, 148 Wn.App. 760, 767, 199 P.3d 493 (2009). Haymond argues that Shelcon did not provide clear and satisfactory evidence that Haymond had actual intent to defraud Shelcon. Haymond argues that his declaration negated

some of the 11 factors of fraud set forth in RCW 19.40.041. Haymond emphasized that his financial situation was "` solvent and in great shape, "' and he argues that most ofthe 11 fraud factors are " variations of insolvency." Br. of Appellant Haymond at 3. But contrary to Haymond' s argument, the trial court need not find evidence ofall 11 factors, nor is the absence 

### ofany single factor dispositive. In re Bankruptcy ofHuber,493 B.R. 798, 815 (Bankr. W.D. Wash. 2013). 

### In fact, strong evidence ofa single fraud factor may sustain atrial court's finding that a conveyance was fraudulent. See Casterline v. Roberts, 168 Wn.App. 376, 385, 284 P.3d 743 ( 2012) (

### holding that evidence that a debtor conveyed propertyto herselffor no consideration sufficed to support finding offraudulent conveyance). The 11 factors in RCW 19.40.041(b) are non exclusive; the trial court " may" consider them, " among other factors," to determine whether there is clear and satisfactory evidence that 

### 10) The transfer occurred shortly before or shortly after a substantial debt was incurred; and 11) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider ofthe debtor. RCW 19.40.041( b).

18No. 46235 - 4 -I1 

### the debtor had actual intent to delay, hinder, or defraud. Huber, 493 B. R. at 815; Sedwickv. Gwinn, 73 Wn. App. 879, 886 -87, 873 P.2d 528 ( 1994). Here, in response to the motion to avoid the transfers, Haymond did not deny his intentto 

### defraud: he merely declared that his financial health was good until 2011, and that he madethe transfers to Odenwalder as trustee to provide for his daughter. But neither ofthese assertions is 

### inconsistentwith Haymond' s actual intentto hinder, delay, or defraud creditors.

Moreover, several fraud factors in RCW 19.40. 041( b) were present. The transfers were to an insider, Haymond' s sister. Haymond retained possession and control ofhis residence and 

### ofhis club membership until March 2012. The transferwas a mere " change ofidentity," performed under an administrative code designed to apply where "there is no change in beneficial ownership." See WAC 458 - 61A - 211. 

### The transfers were apparently for no monetary consideration. Haymond executed the transfers to protect his assets from legal or financial troubles forthe benefit ofhis daughter. Haymond paid Odenwalder directly, and she in turn paid 

### bills on the property, in an apparent plan to conceal that Haymond was the true payor. The strongest evidence against the fraudulent nature ofthe transfers, as Haymond argues, 

### is theirtiming. Haymond's financial solvency atthe time ofthe transfers is not dispositive, but it 

### is strong evidence against Shelcon's claim offraud. The transfers were initially performed in 2006 but unrecorded until 2008, and not disclosed to the club until December 2011. Shelcon sued Haymond on December 31, 2009, and the trial court enteredjudgment against him in October 2011. In 2006 and 2008, Shelcon had not yet sued Haymond. Haymond' s request to backdate the transfers with the club does not change the fact that Haymond transferred and 

### recorded the transfer ofboth assets to Odenwalder orthe trust by 2008, but it does suggest that

19No. 46235-4-11



### Haymond intended to defraud Shelcon in 2011 by backdating the transfers. At earliest possible 

### date ofthe transfers, April 2006, Haymond was preparing to contract with Shelcon. Moreover, RCW 19.40.071 contemplates actual intent to defraud present andfuture creditors. That is, under the statute' s plain terms, fraud can occur before a debt is incurred, and before the debtor' s financial situation deteriorates. 

### Thus, the trial court had clear and satisfactory evidence that Haymond had actual intent to 

### hinder, delay, or defraud Shelcon. Haymond never denied his intentto defraud Shelcon below, and the trial court had clear and satisfactory evidence demonstrating several ofthe statutory fraud factors. VIII. NO TESTIMONY REQUIRED 

### Haymond argues thatthe trial court erred by finding fraud without taking Shelcon' s testimony. We disagree. 

### Haymond cites Sedwick, 73 Wn.App. at 887, to support his argument that the trial court 

### was required to take testimony before finding fraud. In Sedwick, Division One ofthis court held that ``in cases where the debtor denies that his or her intent was to defraud, the issue cannot be 

### conclusively determined bythe trier offact until it has heard thetestimony and assessed the

witnesses' credibility." 

### 73 Wn.App. at 887. The debtors in Sedwickdenied thattheir intentwas to defraud their creditors, butthe trial court granted summaryjudgmentto the creditor based on
circumstantial evidence of the 11 fraud factors. 

### 73 Wn.App. at 887. The Sedwick court's 

### holding is expressly limited to " cases where the debtor denies that his or her intent was to defraud." 

### 73 Wn.App. at 887.

20No. 46235 - 4 -II 

### Here, unlike in Sedwick, Haymond did not deny his intentto hinder, defraud, or delay Shelcon in the trial court.13 Haymond' s declaration in opposition to Shelcon' s motion to avoid the transfers explains that Haymond' s financial health was good until 2011, and that he made the transfers to Odenwalder as trustee to provide for his daughter. Neither ofthese assertions is inconsistent with Haymond' s actual intent to hinder, delay, or defraud creditors. As discussed above, the trial court had sufficient evidence to establish clear and 

### satisfactory proofthat the transfers were fraudulent. Douglas, 148 Wn.App. at 767. Haymond did not denyintentto hinder, delay, or defraud, and Odenwalder' s deposition provided further 

### evidence ofRaymond' s intent to keep his assets from Shelcon. The trial court need not have taken Shelcon' s testimony before avoiding the transfers. ATTORNEY FEES Shelcon requests attorney fees pursuant to RAP 18. 1. It also requests sanctions against Odenwalder pursuant to RAP 18. 9( a). Because we vacate the order below, Shelcon is not the 

### prevailing party and is not entitledto attorney fees atthis time. RAP 14.2, 18. 1. Odenwalder requests attorney fees, but fails to devote a section to her briefto this request 

### and fails to cite authority entitling herto attorney fees. Finding no such authority,we deny her request. See RAP 18. 1( a). 

### We reverse the order and remand to the trial court for an evidentiary hearing to determine several disputed factual issues and to resolve whetherthe statute of limitations has run on

13 Haymond argues in his brief that he " denies any intent to defraud," but we must look to the facts before the trial court at the motion to avoid the transfers. Br. ofAppellant (Haymond) at 2. It is not relevant whether Haymond now denies his intent to defraud.
21No. 46235 - 4 -II 

### Shelcon' s fraudulent transfer claim regarding the club membership. We reverse the avoidance of the transfer ofthe house, because the statute of limitations has run. 

### A majority ofthe panel having determined thatthis opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:
Melnick, J.

Sutton, J.

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