FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 22, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15596

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D.C. Docket No. 06-00562 CV-T-27-TGW

BRIAN DOWLING,

Plaintiff-Appellee,

versus

MICHAEL E. DAVIS,

EMILY SEIBEL,

Defendants-Appellants.

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Appeal from the United States District Court

for the Middle District of Florida

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(September 22, 2008)

Before ANDERSON, BARKETT and COX, Circuit Judges.

PER CURIAM:

Michael E. Davis and Emily Seibel appeal, presenting two issues. First, they

contend that the district court erred in entering a money judgment against Seibel.
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Second, they contend that they are at risk for duplicative liability because it is unclear

whether payments on the prior judgments against Davis should be credited to the

judgment against Seibel in this case. We address each issue in turn.

A. THE MONEY JUDGMENT

The first issue on appeal is whether Florida law permits a money judgment

against a transferee under the circumstances of this case. Section 726.109(2)(a) of

the Florida Statutes provides in relevant part as follows:

(2) Except as otherwise provided in this section, to the extent a transfer

is voidable in an action by a creditor under § 726.108(1)(2), the creditor

may recover judgment for the value of the asset transferred . . . , or the

amount necessary to satisfy the creditor’s claim, whichever is less. The

judgment may be entered against:

(a) The first transferree of the asset . . .

Fla. Stat. Ann. § 726.109(2)(a) (West 2000) (emphasis added). Defendants argue that

the condition precedent)“to the extent a transfer is voidable . . .”)was not satisfied

in this case, and thus the judgment against transferee Seibel is precluded. Defendants

argue that the condition was not satisfied because the funds in the tenancy by the

entirety were used three days later to purchase a constitutionally protected homestead.

We reject Defendants’ argument. The flaw in Defendants’ argument is that the

condition precedent in the statute is that the transfer be voidable, not that the

transferred funds must have been actually avoided. Under the plain meaning of the
Defendants make only limited factual arguments challenging the district court’s conclusion 1

that the transfer into the tenancy by the entirety was a voidable fraudulent transfer, and we reject

those arguments as being without merit.

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Florida statute, it is clear that the issue is whether the transfer into the tenancy by the

entirety was “voidable”)i.e., whether it could have been avoided at that time. As the

district court explained in this case, the transfer of funds into the tenancy by the

entirety was voidable as a fraudulent transfer. We note that the initial transfer into

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the tenancy by the entirety is a different transfer than the transfer of funds out of that

account to purchase the homestead three days later. The mere fact that the latter

transfer was not actually avoided, and could not be because of Florida's constitutional

homestead exemption, says nothing about whether the transfer into the tenancy by the

entirety was voidable. Furthermore, it is not relevant that there was no actual

avoidance before the bulk of the funds were transferred to purchase the homestead.

For the foregoing reasons, we hold that the condition precedent in the

statute)“to the extent a transfer is voidable”)is satisfied. Accordingly, pursuant to

the plain meaning of the language ofthe statute, a money judgment against Defendant

in “the amount necessary to satisfy the creditor’s claim” is permissible.

B. DUPLICATIVE LIABILITY

We conclude that Defendants’ contentions about duplicative liability have

merit. And, at oral argument Dowling voiced no objection to the judgment here being
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amended to say that payments made on the prior judgments against Davis that are at

issue)the final judgments of May 1, 2002, and October 29, 2002)should be credited

against the judgment entered against Seibel in this case.

C. CONCLUSION

The judgment entered in this case is affirmed, but we remand to the district

court with instructions to amend the final judgment by inserting at the end of section

1 on page 3 of the Order and Final Judgment the following sentence:

All payments made on the aforementioned final judgments against Davis

of May 1, 2002, and October 29, 2002, (whether previously made or

made hereafter) shall be a credit against this judgment against Defendant

Emily Seibel.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS TO AMEND

THE JUDGMENT.