UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PNC EQUIPMENT FINANCE, LLC )

) No. 12-cv-03074

Plaintiff, )

v. ) Judge Joan H. Lefkow

)

)

BONNIE ZILBERBRAND, )

)

Defendant. )

OPINION AND ORDER

PNC Equipment Finance, LLC (hereinafter “PNC”) filed a two-count complaint against

defendant, Bonnie Zilberbrand (“Zilberbrand”), alleging violations of the Illinois Uniform

Fraudulent Transfer Act, 740 ILL. COMP. STAT. 160/1 et seq. (“IUFTA”). PNC alleges that 

Zilberbrand’s husband, Ronald Zilberbrand (Debtor), made a transfer of property to Zilberbrand

which was fraudulent under the IUFTA. PNC seeks to set aside that transfer. Before the court is

Zilberbrand’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).1 For the

reasons set forth below, Zilberbrand’s motion to dismiss [dkt. 12] is denied.

BACKGROUND2

I. Debtor’s Preexisting Obligations to PNC

Beginning in 2006, PNC’s predecessor entered into a series of loan transactions with 

1

 This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a). The parties are of

diverse citizenship because the sole member of PNC is PNC Bank, N.A., which has its principal place of

business in Pennsylvania and is incorporated in Delaware and Zilberbrand is a citizen of Illinois. Venue

is appropriate in this district pursuant to 28 U.S.C. § 1391(b).

2

 The facts in the background section are taken from the complaint and exhibits attached thereto

and the court draws all reasonable inferences in PNC’s favor. See Virnich v. Vorwald, 664 F.3d 206, 212

(7th Cir. 2011).
entities controlled by Debtor. In connection with the loans, Debtor executed guaranties

obligating him to repay approximately $28.1 million. Under the guaranties, PNC could pursue

an action against Debtor independently of the other borrowers.3

 The borrowers subsequently

defaulted under the promissory notes. On August 25, 2010, PNC sent notices of default to

entities controlled by Debtor demanding payment. On September 29, 2011, PNC made a second

demand for payment. On December 6, 2011, PNC filed suit in the Court of Common Pleas of

Hamilton County, Ohio against Debtor and other borrowers on the promissory notes.

II. Purchase of the Property 2025 North Mohawk Street in Chicago, Illinois

On March 4, 2008, Debtor purchased the property located at 2025 North Mohawk Street

in Chicago, Illinois (“the property”) for $3.95 million. On March 24, 2008, Zilberbrand and

Debtor, who had been married before and subsequently divorced, executed a prenuptial

agreement in anticipation of their second marriage. The prenuptial agreement provided that

Debtor would transfer his interest in the property to Zilberbrand within 90 days of their

marriage.4 On June 13, 2008, Zilberbrand and Debtor remarried. On July 22, 2008, Debtor

3

 PNC, or its predecessor, made loans to Casafin VII, LLC; Casafin, VIII, LLC; Lear 45210, Inc.;

Flymex 450, LLC; Flymex 550, LLC; and Flymex 5502, LLC that Debtor guarantied. The borrowers

sought financing to purchase aircrafts. Limited liability companies of which Debtor was a member were

also members of the companies that obtained financing from PNC or its predecessor. 

4

 Paragraph 7 of the prenuptial agreement provided,

Within ninety (90) days of the marriage of BONNIE and RON, RON shall provide to

BONNIE in her individual name (or as she may direct in writing to RON) as her non-marital

property from his non-marital property title to the residence located at 2025 North Mohawk,

Chicago, Illinois (the “Mohawk Property”), which property is presently owned by RON, free

of any mortgage encumbrance or subject to a mortgage with respect to which RON shall be

the sole obligor; provided, however, if for any reason RON shall not own the Mohawk

Property subsequent to the marriage of the parties and prior to providing title to BONNIE,

then RON shall provide to BONNIE in her individual name (or as she may direct in writing

to RON) as her non-marital property from his non-marital property the sum of four million

(continued...)

2
transferred his interest in the property to Zilberbrand via a quit claim deed. On July 24, 2008,

the quit claim deed was filed with the Cook County Recorder of Deeds.

LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges a

complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6);

Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In

ruling on a 12(b)(6) motion to dismiss, the court accepts as true all well-pleaded facts in the

plaintiff’s complaint and draws all reasonable inferences from those facts in the plaintiff’s favor. 

Dixon v. Page, 291 F.3d 485, 586 (7th Cir. 2002). To survive a 12(b)(6) motion, the complaint

must not only provide the defendant with fair notice of a claim’s basis, but must also establish

that the requested relief is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,

173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955,

167 L.Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. At the same time, the plaintiff need not plead legal

theories. Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). Rather, it is the facts

that count. 

Rule 9(b) requires a party alleging fraud to “state with particularity the circumstances

constituting fraud.” Fed. R. Civ. P. 9(b). To satisfy Rule 9(b)’s pleading threshold, the pleader

4

(...continued)

dollars ($4,000,000).

(Dkt. 12–3 at 7 ¶ 7.)

3
must detail “the identity of the person who made the misrepresentation, the time, place and

content of the misrepresentation, and the method by which the misrepresentation was

communicated to the plaintiff.” Gen. Elec. Capital Corp., 128 F.3d at 1078 (internal quotation

marks omitted); Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 777 (7th Cir.

1994). Stated differently, the complaint must include the “who, what, when, and where of the

alleged fraud.” Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 923 (7th Cir. 1992) (internal

quotation marks omitted).5 

ANALYSIS

PNC brings claims under the IUFTA alleging constructive fraud and actual fraud seeking

to set aside Debtor’s transfer of the property to Zilberbrand.6

 Actual fraud takes place where the

debtor has the specific intent to hinder his creditors while constructive fraud occurs where the

debtor conveys assets for inadequate consideration resulting in his insolvency despite preexisting

or contemplated debts. See Cordes & Co., LLC v. Mitchell Cos., LLC, 605 F. Supp. 2d 1015,

1020 (N.D. Ill. 2009). Zilberbrand argues that PNC’s IUFTA claims fail because (1) they are

barred by the statute of limitations; (2) Debtor received reasonably equivalent value for the

5

 Zilberbrand does not address the applicability of Rule 9(b)’s heightened pleading standard to

PNC’s allegations. Because PNC’s IUFTA allegations sound in fraud, the heightened pleading standard

of Rule 9(b) is applicable. See B.E.L.T., Inc. v. Wachovia Corp., 403 F.3d 474, 477–78 (7th Cir. 2005);

In re Lancelot Investors Fund, L.P., No. 08 B 28225, 2012 WL 718631, at *4 n.1 (Bankr. N.D. Ill.

Mar. 2, 2012) (“Defendant brings this motion pursuant to Rule 8 pleading requirements. The Court notes,

however, that when a claim is based on fraud the heightened pleading standards of Rule 9(b) apply.”).

6

 The difference between constructive fraud claims under § 5(a)(1) and § 6(a) is that under the

former the creditor’s claim can arise before or after the transfer while under the latter the creditor must

have a claim against the debtor before the transfer. PNC alleges constructive fraud under § 5(a)(1) and

actual fraud under § 5(a)(2) in count I. PNC alleges constructive fraud under § 6(a) in count II. Although

PNC alleges both constructive fraud and actual fraud in count I, the court will consider whether PNC has

pleaded claims for either type of fraud under the IUFTA. See Hatmaker, 619 F.3d at 743 (“[P]laintiffs in

federal courts are not required to plead legal theories.”). 

4
transfer of the property; (3) Debtor was not insolvent at the time of the transfer; and (4) PNC did

not allege that Debtor acted with the requisite intent to hinder, delay, or defraud PNC to show

actual fraud.

I. Whether the Statute of Limitations Bars PNC’s IUFTA Claims

Zilberbrand argues that PNC’s claims under the IUFTA are barred by the statute of

limitations because PNC filed its complaint on April 25, 2012, which was four years after Debtor

agreed to transfer the property to Zilberbrand. PNC contends that the complaint is timely filed

because the transfer took place when the quit claim deed was filed on July 24, 2008.

The statute of limitations for IUFTA claims requires they be made “within four years of

when the transfer was made or the obligation was incurred.” 740 ILL. COMP. STAT. 160/10(a);

10(b). The IUFTA provides that “a transfer is made with respect to an asset that is real

property . . . when the transfer is so far perfected that a good-faith purchaser of the asset from the

debtor against whom applicable law permits the transfer to be perfected cannot acquire an

interest in the asset that is superior to the interest of the transferee.” 740 ILL. COMP. STAT.

160/7(a)(1). Under Illinois law, a transferee’s title to real property is protected against a bona

fide purchaser only after recording of the deed. 765 ILL. COMP. STAT. 5/30; Bay State Milling

Co. v. Martin, 46 F. App’x 369, 370 (7th Cir. 2002). For purposes of the IUFTA, Debtor’s

transfer of the property was effectuated when the deed was recorded on July 24, 2008. PNC

filed its complaint within four years of the recording of the deed making it timely under the

IUFTA. 

 Zilberbrand argues that Debtor transferred an interest in the property on March 24, 2008

when he assumed an obligation in the prenuptial agreement to transfer title of the property to

5
Zilberbrand.7

 The Illinois Uniform Premarital Agreement Act, however, provides that a

“premarital agreement becomes effective upon marriage.” 750 ILL. COMP. STAT. 10/5. Although

executed on March 24, 2008, the prenuptial agreement did not become effective until June 13,

2008, when Zilberbrand and Debtor remarried. Zilberbrand’s marriage to Debtor, not the

execution of the prenuptial agreement, triggered Debtor’s obligation to transfer the property to

Zilberbrand within 90 days, which he did on July 24, 2008 by filing the quit claim deed.8

Accordingly, PNC’s complaint filed on April 25, 2012 is not barred by the statute of limitations.

II. Whether Debtor Received Reasonably Equivalent Value for the Transfer of the

Property

To show constructive fraud under § 5(a)(2) and § (6)(a), PNC must demonstrate, in part,

that Debtor transferred the property “without receiving a reasonably equivalent value in

exchange for the transfer . . .” 740 ILL. COMP. STAT. 160/5(a)(2); (6)(a). The IUFTA provides

in relevant part that “[v]alue is given for a transfer or an obligation if, in exchange for the

transfer or obligation, property is transferred or an antecedent debt is secured or satisfied.” 740

ILL. COMP. STAT. 160/4(a). Factors courts consider in determining reasonably equivalent value

include “the fair market value of what was transferred and what was received; whether the

transaction took place at arm’s length; and the good faith of the transferee.” Cordes & Co., 605

7

 Zilberbrand attached the prenuptial agreement as an exhibit to her motion to dismiss but it was

not included as an exhibit with the complaint nor was it referenced therein. Still, the court will consider

paragraph 7 in the prenuptial agreement regarding Debtor’s promise to transfer the property to

Zilberbrand. Because this portion of the prenuptial agreement implicates the statute of limitations, the

court concludes that it is central to PNC’s claim and will consider it part of the pleadings. See Fed. R.

Civ. P. 12(d); 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002). 

8

 Zilberbrand cites no authority for the proposition that a contractual obligation in a prenuptial

agreement providing for a future transfer of property after the marriage constitutes a transfer under the

IUFTA at the time of the prenuptial agreement’s execution. 

6
F. Supp. 2d at 1021 (citing Barber v. Golden Seed Co., 129 F.3d 382, 387 (7th Cir. 1997)). 

Ultimately, whether a party received reasonably equivalent value is a question of fact. See In re

Image Worldwide, Ltd., 139 F.3d 574, 576 (7th Cir. 1997).

PNC contends that Debtor transferred the property valued at approximately $4 million to

Zilberbrand for no consideration. Zilberbrand argues that Debtor’s transferring the property

satisfied an antecedent debt contained in the prenuptial agreement and thus constituted

reasonably equivalent value. While marriage can constitute valid consideration in a prenuptial

agreement, see In re Marriage of Barnes, 755 N.E.2d 522, 527, 324 Ill. App. 3d 514, 258 Ill.

Dec. 139 (Ill. App. Ct. 2001), reasonably equivalent value requires “something more than

consideration to support a contract.” In re Image Worldwide, 139 F.3d at 580; In re Joy

Recovery Tech. Corp., 286 B.R. 54, 75 (Bankr. N.D. Ill. 2002) (“Unlike contract law, nominal

consideration is inadequate to satisfy the reasonably equivalent value standard.”). Indeed, courts

outside of this circuit have held that intangible benefits to family members are insufficient to

constitute reasonably equivalent value.9

 See In re Hinsley, 201 F.3d 638, 643–44 (5th Cir. 2000)

(applying the Texas Uniform Fraudulent Transfer Act and noting that “[i]ntangible, noneconomic benefits, such as preservation of marriage, do not constitute reasonably equivalent

value.”); In re Bargfrede, 117 F.3d 1078, 1080 (8th Cir. 1997) (applying bankruptcy law and

providing that “[t]o the extent [the debtor] received indirect, non-economic benefits in the form

of a release of a possible burden on the marital relationship and the preservation of the family

relationship, we find these sufficiently analogous to other intangible, psychological benefits to

9

 The IUFTA is a uniform act and the phrase “reasonably equivalent value” is derived from

§ 548(a)(2) of the Bankruptcy Code. See In re Image Worldwide, 139 F.3d at 577 (“[W]e can look to

interpretations of ‘reasonably equivalent value’ from § 548 cases, as well as cases from courts interpreting

other states’ versions of the UFTA for assistance in predicting what an Illinois court would do.”). 

7
conclude that they do not constitute reasonably equivalent value.”).10

Moreover, the determination of value, however, is viewed from the vantage point of the

creditor. See In re Joy Recovery Tech. Corp., 286 B.R. at 75. Here, the prenuptial agreement

obligated Debtor to transfer the property to Zilberbrand upon their marriage. Zilberbrand’s

marriage to Debtor provided no value to Debtor’s creditors, such as PNC. Indeed, Zilberbrand

does not contend that the antecedent debt was for any other pre-existing obligation. Because the

promise to marry does not constitute reasonably equivalent value, PNC’s complaint sufficiently

alleges that Debtor did not receive reasonably equivalent value for the transfer of the property. 

Accordingly, Zilberbrand’s motion to dismiss PNC’s constructive fraud claims under the IUFTA

in counts I and II is denied. 

III. Whether Debtor Was Insolvent at the Time of the Transfer

To show constructive fraud under § (6)(a), PNC must demonstrate that “the debtor was

insolvent at [the time of the transfer] or the debtor became insolvent as a result of the transfer.” 

740 ILL. COMP. STAT. 160/6(a). Under the IUFTA, “[a] debtor is insolvent if the sum of the

debtor’s debts is greater than all of the debtor’s assets at a fair valuation.” 740 ILL. COMP.

STAT. 160/3(a). In addition, the IUFTA provides that “[a] debtor who is generally not paying his

debts as they become due is presumed to be insolvent.” 740 ILL. COMP. STAT. 160/3(b). 

Whether a debtor is insolvent is a question of fact. See Grochocinski v. Schlossberg, 402 B.R.

825, 836 (N.D. Ill. 2009); In re McCook Metals, L.L.C., No. 05 C 2990, 2007 WL 4287507, at

10 In In re Image Worldwide, Ltd., 139 F.3d at 578, the Seventh Circuit held that indirect benefits

can be taken into account when determining reasonably equivalent value. The indirect benefits in In re

Image Worldwide arose in the corporate context, and are distinct from an amorphous promise to marry. 

See id. The Seventh Circuit noted that “a court will not recognize an indirect benefit unless it is fairly

concrete.” Id. (internal quotation marks omitted).

8
*5 (N.D. Ill. Dec. 4, 2007). 

The date of the transfer for purposes of determining Debtor’s insolvency is the date of the

deed’s filing, which was July 24, 2008. Prior to that time, PNC alleges that Debtor was the

guarantor for seven loans obligating him to repay approximately $28.1 million. On July 24,

2008, PNC alleges that Debtor’s liabilities exceeded the total amount of his assets at fair

valuation and that Debtor was insolvent or would become so after the transfer of the property. 

(Compl. ¶¶ 38, 39, 45.) Subsequent to the transfer, and after the promissory notes became due in

connection with Debtor’s guaranties, he defaulted on all of the loans. These allegations detail

that Debtor transferred the property to decrease the value of his assets in light of the impending

maturity of the promissory notes that he guaranteed. See Apollo Real Estate Inv. Fund, IV,

L.P. v. Gelber, 935 N.E.2d 963, 976, 403 Ill. App. 3d 179, 343 Ill. Dec. 735 (Ill. App. Ct. 2010)

(presumption of constructive fraud arises where “the debtor has failed to retain sufficient

property to pay the indebtedness.”). In sum, PNC alleges that Debtor was insolvent or became

insolvent as a result of the transfer to obviate PNC’s ability to collect on the notes.11

11 Zilberbrand relies on documents attached to her motion to dismiss to show that Debtor was

solvent at the time of the transfer. Namely, Zilberbrand relies on Exhibit B to the prenuptial agreement,

which provided that Debtor’s net worth as of February 29, 2008 was in excess of $38,000,000. 

Zilberbrand also relies on Debtor’s affidavit to establish that he was solvent at the time of the transfer. 

These documents were not included as exhibits to PNC’s complaint. See Fed. R. Civ. P. 12(d). A court

may consider documents attached to a motion to dismiss only “if they are referred to in the plaintiff’s

complaint and are central to his claim.” Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir.

1994); see also Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998) (noting that a court’s

considering documents attached to a motion to dismiss that were not referenced in the complaint is a

narrow exception “aimed at cases interpreting, for example, a contract.”). Debtor’s assets listed in the

prenuptial agreement and his affidavit detailing his net worth are not referenced in PNC’s complaint nor

are they central to its claim. Indeed, Zilberbrand’s reliance on these documents underscores the factual

inquiry necessary to determine whether Debtor was solvent at the time of the transfer. Accordingly, the

court will not consider this material and declines to exercise its discretion in converting Zilberbrand’s

motion to dismiss into one for summary judgment. See Fed. R. Civ. P. 12(d); Hecker v. Deere & Co., 556

F.3d 575, 583 (7th Cir. 2009). 

9
Accordingly, Zilberbrand’s motion to dismiss PNC’s constructive fraud claim under the IUFTA

in count I is denied. 

IV. Whether PNC Pleaded a Claim for Actual Fraud under the IUFTA

Although Zilberbrand attacks PNC’s complaint under Rule 8, as PNC is alleging actual

fraud, Rule 9(b)’s heightened pleading standard also applies. To demonstrate actual fraud under

the IUFTA, PNC must demonstrate that Debtor “made the transfer . . . with actual intent to

hinder, delay, or defraud any creditor of the debtor.” 740 ILL. COMP. STAT. 160/5(a)(1). 

Zilberbrand contends that PNC failed to plead actual fraud with the requisite specificity. 

The IUFTA delineates badges of fraud as circumstantial evidence in determining whether

a debtor acted with intent to defraud, including whether the transfer was to an insider; the debtor

retained possession or control of the property after the transfer; the debtor received reasonably

equivalent value for the asset transferred; and the debtor was insolvent or became insolvent

shortly after the transfer. 740 ILL. COMP. STAT. 160/5(b)(1); (2); (8); (9); see also Frierdich v.

Mottaz, 294 F.3d 864, 869–70 (7th Cir. 2002); Grede v. Bank of N.Y. Mellon, 441 B.R. 864,

880–81 (N.D. Ill. 2010). PNC relies on these badges of fraud to show actual intent and alleges

that Zilberbrand was an insider; Debtor retained possession or control of the property after the

transfer; Debtor did not receive reasonably equivalent value for the transfer; and Debtor was

insolvent or became insolvent shortly after the transfer. See Compl. ¶ 46(a)-(e).12

First, PNC argues that Zilberbrand was Debtor’s wife at the time of the transfer and was

12 PNC also alleges that Debtor’s failing to retain sufficient property to pay his indebtedness also

evidences actual fraud; however, the IUFTA does not include this factor as a specific badge of fraud.

Rather, failure to retain sufficient property to pay indebtedness is indicative of constructive fraud. 

10
thus an insider. Indeed, the IUFTA defines “insider” as “a relative of the debtor.” 740 ILL.

COMP. STAT. 160/2(g)(1)(A). Here, at the time of the transfer on July 24, 2008, Debtor and

Zilberbrand had remarried, and for purposes of the IUFTA, Zilberbrand was an insider. Second,

PNC alleges that Debtor retained possession of the property after the transfer and continues to

live there.13 Last, as noted above, PNC alleges that Debtor did not receive reasonably equivalent

value for the transfer and was insolvent or became insolvent as a result of the transfer. In sum,

PNC alleges that Debtor transferred the property to Zilberbrand before the promissory notes

matured to defraud his creditors. PNC has thus alleged actual fraud with sufficiently

particularity under the IUFTA and Rule 9(b). See Gen. Elec. Capital Corp., 128 F.3d at

1079–80; RehabCare Grp., E., Inc. v. Camelot Terrace, Inc., No. 11 C 6557, 2012 WL 1246560,

at *7 (N.D. Ill. April 13, 2012). Accordingly, Zilberbrand’s motion to dismiss PNC’s actual

fraud claim under the IUFTA in count I is denied.

13 Zilberbrand contests that she and Debtor retained possession of the property but relies on

materials outside the pleadings (i.e., the affidavit she submitted in addition to Debtor’s affidavit), and the

court will not consider those affidavits in deciding the present motion to dismiss. 

11
CONCLUSION

Zilberbrand’s motion to dismiss PNC’s complaint [dkt. 12] is denied.

Dated: March 28, 2013 Enter: _____________________________

JOAN HUMPHREY LEFKOW

 United States District Judge 

12